Bangalore District Court
Smt. Vidya Tirtha vs Sri. Papanna on 2 July, 2020
IN THE COURT OF I ADDITONAL CITY CIVIL &
SESSIONS: JUDGE AT BENGALURU (CCH.NO.2)
Dated this 2nd day of July 2020
O.S. No. 265/2013
C/W
O.S. No. 7556/2013
Present :- Sri. Jaishankar. B.Sc.,LL.M.
C/C I Additional City Civil &
Session Judge, Bengaluru.
PARTIES IN O.S. NO. 265/2013
Plaintiff's :- Smt. Vidya Tirtha
W/o late. Poornananda Thirtha,
Aged about 75 years,
Residing at 121/8, Thirtha Ashrama
Kothnurdinne Main Road,
J.P. Nagar 7th Phase,
Santhrupti Nagar,
Bangalore-560078.
(Rep. by M/s Holla and Holla, Advocates)
V/s
Defendant's :- 1. Sri. Papanna,
S/o late. Muniswamappa @
Hanumappa,
Aged about 75 years,
(Deleted as per order dated 25.06.2018)
2. Yellappa
S/o late Muniswamappa @
Hanumappa Aged about 63 years
3. Sri. Krishnappa,
S/o late. Muniswamappa @
Hanumappa,
Aged about 57 years,
All are residing at :
Door No. 31, 1st Main, 2nd Cross,
Puttennahalli, J.P. Nagara 7th Phase,
Bangalore-560078.
(Rep. by Sri. C.G.Gopalaswamy,Advocate)
PARTIES IN O.S. 7556/2013
Plaintiff's :- 1. Sri. Papanna,
S/o late. Muniswamappa
@ Hanumappa,
Aged about 75 years,
since dead by L.R's :-
1(a) Smt. Papamma @
Venkatamma,
Aged about 66 years,
W/o late Papanna
1(b) Smt. Bhagya,
Aged about 41 years,
W/o Shanthakumar,
D/o late Papanna
1(c) Sri. Ramesh.P,
Aged about 39 years,
S/o late Papanna
1(d) Smt. Padma,
Aged about 37 years,
W/o Narayana and
D/o late Papanna
1(e) Sri. Manjesh.P
Aged about 35 years
S/o late Papanna
All are R/at No. 31, 1st Main,
2nd Cross, Puttenahalli,
J.P. Nagar, 7th Phase,
Bengaluru-560078
2. Yellappa
S/o late Muniswamappa
@ Hanumappa
Aged about 63 years
3. Sri. Krishnappa,
S/o late. Muniswamappa
@ Hanumappa,
Aged about 57 years,
All are residing at :
Door No. 31, 1st Main, 2nd Cross,
Puttennahalli, J.P. Nagara 7th Phase,
Bangalore-560078.
(Rep. by Sri. C.G.Gopalaswamy,Advocate)
V/s
Defendant :- Smt. Vidya Tirtha
W/o late. Poornananda Thirtha,
Aged about 75 years,
Residing at Vidya Academy
121/1, Gargo Sadana,
Krishna Rao Road,
Basavanagudi,
Bangalore-560004.
(Rep. by M/s Holla and Holla, Advocates)
Date of Institution of the
suit:
O.S. 265/2013 : 05.01.2013
O.S. 7556/2013 : 11.10.2013
Nature of the Suit :
O.S. 265/2013 : Suit for Permanent Injunction
O.S.7556/2013 : Suit for declaration, mandatory
Injunction, possession and for
mesne profits.
Date of the
commencement of 02.06.2017
recording of the Evidence:
Date on which the
Judgment was 02.07.2020
pronounced:
Total duration: Year/s Month/s Day/s
O.S. 265/2013 : 07 05 27
O.S.7556/2013 : 06 08 21
COMMON JUDGMENT
In view of the order passed by the Hon'ble High Court of Karnataka in MFA No. 255/2015 (CPC) dated 30.08.2016, both the suits are clubbed together and common evidence is recorded in O.S. No. 265/2013 and both the suits are being disposed off by this common Judgment.
The suit in O.S. No. 265/2013 is filed by the plaintiff of the said suit for the relief of permanent injunction and the suit in O.S. No.7556/2013 is filed by the defendants in O.S.No.265/2013 for the reliefs of declaration, mandatory injunction, possession and mesne profits.
2. The brief averments of the plaint in O.S.No.265/2013 is as follows :-
That the suit schedule property was originally belonged to one Sri. Nanjappa, who then sold the same in favour of one Smt. Muniyellamma under a registered sale deed dated 16.05.1901. The said Muniyellamma along with her sons Bodiga and Putta sold the said property in favour of one Sri. Muniyappa. He died on 10.05.1966 leaving behind his wife and children. The Revenue records were made out in the name of his wife Smt. Chinnathayamma vide IHC No. 8/86-87. After that, the plaintiff, her husband and son jointly purchased the suit schedule property from Smt. Chinnathayamma and her children for a valuable consideration under the registered sale deed dated 17.09.1986. The katha was changed to their name vide MR. No. 18/86-87. The plaintiff has been paying taxes. Her husband died on 20.05.1988 and her son also died on 17.02.1987. From then, the property is standing in her name. She has constructed a residential building along with a school and an old age home in the suit schedule property. Earlier, notifications dated 16.01.1989 and 15.01.1990 were issued for acquisition of the suit schedule property and an award dated 22.07.1992 was also passed by the Special Land Acquisition Officer, Bangalore. She had challenged the said notifications in W.P. No. 24086/1992 and it was allowed on 03.08.1998 and the notifications and the award dated 22.07.1992 were quashed. Then, she approached the concerned Authorities for change of khatha. But, they have failed do so and they are dragging on stating one or the other reason. She is the absolute owner in possession of the suit schedule property for over 25 years and the defendants have no right whatsoever upon the suit schedule property. On 18.12.2012 and 02.01.2013, the defendants and their henchmen tried to enter into the suit schedule property and with great difficulty she resisted them. They have threatened her that they would come with more force and dispossess her. When she approached the jurisdictional Police, they asked her to approach the Civil Court. There is a need to grant an order of permanent injunction. The defendants have filed the suit in O.S. No. 7556/2013 for declaration and possession with respect to the same schedule property. The defendants have catalytically admitted that she is in possession of the suit schedule property. In view of the said admission, she is entitled for the relief sought in the suit. Hence, the suit.
3. The defendants No.1 to 3 in the said suit have filed common written statement and have contended as follows :-
That the suit is not maintainable both under law and on facts. The allegations made in para 3 are all false. The document No. 298 in Book-I, Volume 33 registered on 18.04.1907 is the document in question and it is pertaining to the land in Sy. No. 22 of Kenchenahalli Village, Yelahanka. The sale deed dated 08.01.1945 produced along with the plaint is a created and concocted document. The property sold under the said sale deed is the property in Sy. No. 84 situated at Kothanur Village and the property in question is the property in Sy. No. 121/8 and they are entirely different. The said fact is revealed from the village Map of Kothanur Village. Mutation under IHC No. 8/86-87 is a created one with the collusion of the Revenue officials to knock off the suit schedule property, even though Sri. Muniyappa did not derive any title under the sale deed dated 08.01.1945. The land in Sy. No. 121 of Kothanur Village, Uttarahalli Hobli, was measuring about 30 acres and it was phoded on 29.08.1928 and divided into Sy. Nos.
121/1 to 121/13. Sri. Nanjappa has not sold the land in favour of Smt. Muniyellamma under the registered Sale Deed dated 16.05.1907. The grand father of the defendants No. 1 to 3 namely Smt. Munelli @ Munemma W/o Sri. Munella D/o Eramuniyappa purchased the suit property in question from one Smt. Maddakka D/o Smt. Chinnakkamma under a registered sale deed dated 27.04.1912. After the said purchase, the said Munelli @ Munemma continued in possession and enjoyment of the suit schedule property. After her death, her three sons namely Muniswamappa @ Hanumappa, Bodappa and Puttappa inherited the suit schedule property in question. Bodappa and Puttappa died issue less and the said Muniswamappa @ Hanumappa also died leaving behind them as their LR's and they have inherited the suit schedule property as his legal heirs. After the death of Munelli @ Munemma and Muniswamappa @ Hanumappa, they continued to be in possession and enjoyment of the suit schedule property. The Hissa, Tippani, Secondary Reclass Tippani, Akarbandh, Mysore Settlement Register, Atlas of Survey, Survey Nakshe, R.R., ILR., Preliminary Records of the land in Sy. No. 121/8 clearly show the name of their grand mother late Munelli @ Munemma. The allegations made in the para 4 of the plaint are all false. It is false that the plaintiff, her husband and her son have jointly purchased the property bearing old No. 84 and new Sy. No. 121/8 for a valuable consideration under a Sale Deed dated 17.09.1986. The said sale deed is a created document to knock off the suit schedule property. The said Muniyappa and his LR's had no right or title over the suit schedule property in question to execute the sale deed dated 17.09.1986. The plaintiff is not having any right or title over Sy. No. 121/8. Their ancestors have not sold the property in question in favour of any persons and they are in possession of the same. In the village Map of Kothanur village of the year 1903, Sy. No. 84 and Sy. No. 121/8 are shown to be situated at different places. The lands in Sy. No. 84 and the land in Sy. No. 121 have different ILR, RR, RTCs, Settlement Register and Preliminary Records. The land in Sy. No. 84 measures 5 Acres 8 guntas and the land in Sy. No. 121 measures 30 Acres. The extent of Sy. No.121/8 is only 1 Acre 30 guntas. As per Survey Tippani dated 28.02.1929, phodi was made to Sy.No. 121 and in the said phodi, the survey number given to Munelli's land is Sy. No. 121/8. As per the Order of the Government Survey Officer dated 10.01.1958, the Secondary Re-class Survey was conducted and the surveyor has clearly mentioned that Munelli was the owner in possession of Sy. No. 121/8. In the Mysore Revision Settlement Register of Survey of the year 1966 also the owner and Hiduvalidar of land in Sy. No. 121/8 is shown as Munelli. Muniyappa was neither had title or possession for 21 years as per the Sale deed dated 17.09.1986. In all the RTC's from 1969 to 1989, the names of Munelli, her elder son Hanumappa and her grand son Muniyappa are shown in Col. Nos. 9 and 12. The allegations made in para 5 of the plaint are all false. M.R. No. 18/1986 is a created document with the collusion of the Revenue Officials. The document No. 2478/1986-1987 shown to mutate the schedule property is of some other sale deed executed between some other parties with respect to Sy. No. 32 of Maranalli Village measuring 23 guntas. This show that M.R. No. 18/86-87 is created. They had challenged the mutations in M.R. No. 18/1986-87, IHC No. 1/92-93 and MR No. 1/93-94 before the Asst. Commissioner, Bangalore South under Appeal No. RA(S) 235/11-12 and it was allowed. The suit schedule property in question is the agricultural property and there is no conversion of land. The allegations made in para Nos. 6, 7 and 9 of the plaint are all false. The plaintiff has illegally and unauthorizedly occupied a portion of the land in the suit schedule property as a trespasser. The plaintiff has illegally constructed unauthorized building and the plaintiff has got illegal electricity connection. The averments made in para 9 to 11 of the plaint are correct. In the said Notifications, their names are shown as Anubhavadars. The allegations made in para 12 to 19 are false. The plaintiff has suppressed the Order of Asst. Commissioner passed in Appeal No. RA (S) 235/11-12. The plaintiff is not the owner of the suit schedule property and she is also not in possession of suit schedule property. They have raised coconut trees and other trees on the suit schedule lands. They are residing in the sheds constructed in the suit schedule property and they are cultivating the suit land in question. The plaintiff is not running Ashram or old age home and holistic centre and the school. It is a created story to knock off the suit schedule property. The plaintiff is running an Ashram, an old age home (Vruddashrama), Yoga and holistic centre and a School at Gargi Sadan, Krishna Rao Road, Basavanagudi, Bangalore-04 and she is not running any Ashram by name "Theertha Ashrama". It is false that on 18.12.2012, they have tried to enter into the suit schedule property and the plaintiff with great difficulty resisted the same. In fact, the plaintiff has resisted them from cultivating the land in question. The plaintiff has never approached the Police. There is no cause of action to file the suit. The RTC stands in their name for the year 2012-2013. The suit for permanent injunction without seeking the relief of declaration is not maintainable. On all these grounds, they have prayed for dismissal of the suit in O.S.No.265/2013.
4. The defendants have also filed additional written statement on 10.01.2017 after the plaint was amended and they have contended as follows :-
The alleged document bearing No. 298 of the year 1901-02 is a Gift deed dated 10.08.1901. Under the sale deed dated 27.08.1912 Smt. Muneli @ Munemma purchased an extent of 1 Acre 30 guntas. On 29.08.1928, the larger land was sub divided into Sy. No. 121/1 to 121/13 and the land purchased by Smt. Munelli @ Munemma was assigned Sy. No. 121/8. In the year 1938, Smt. Munelli @ Munemma and her sons divided their properties and the written statement schedule land fell to the share of her first son Sri. Muniswamappa @ Hanumappa. He was an illiterate and not worldly-wise and he did not take care to see the Revenue records. After his death, they became entitled to the written statement schedule land. They have got their names entered in the Revenue records as the owners as per the order of Asst. Commissioner dated 20.12.2012 in RA (S) 235/2011-12. Since they were uneducated, they did not take any step to question the acquisition proceedings initiated for acquisition of the written statement schedule land for the Wilson Garden House Building Co-operative Society Ltd., However, they remained in possession of the written statement schedule land. During April 2008, they noticed construction activity and they believed that the acquisition has been completed. Even after, passage of more than three years, they did not see any sign of compensation and then they checked with the WGHBSC to ascertain if they could receive compensation for the written statement schedule land and other items. It came to their knowledge that the Revenue records have been made out in the name of Poornananda Tirtha, the plaintiff and Sri. Vidya Shankar on the strength of the sale deed dated 17.09.1986. Then, they preferred Appeal before the Assistant Commissioner and obtained all Revenue documents. They came to know that the plaintiff is claiming right on the strength of sale deeds dated 16.05.1907 and 17.09.1986. The document no. 298 of the year 1907-08 is pertaining to Sy. No. 22 Kenchanahalli, Yelahanka and this show that the sale deed dated 01.08.1945 is created. The land in Sy. No. 84 is a distinct and separate land measuring 5 Acres 27 guntas and it belongs to Sri. RPM Srinivasulu and others.
No part of Sy. No. 84 is assigned new Sy. No. 121/8. The Asst. Commissioner has set aside the mutations in respect of the written statement schedule property and allowed their appeal on 20.12.2012. Later, they came to know about filing of this suit. The plaintiff is claiming a non existent right to the written statement schedule property. On 09.08.2013, the plaintiff and her supporters drove away the 3rd defendant from the dwelling unit in the written statement schedule land in an attempt to wipe out any trace of their possession of the written statement schedule land. Smt. Munelli @ Munellamma or her sons did not own any part of the land bearing Sy. No. 84. The alleged vendors of the sale deed dated 08.01.1945 are not Smt. Munelli and her sons who are their family members. They are fictitious persons and a fraud has been committed. The boundaries in the said sale deed are shown to be similar to the then existing boundaries of the land bearing Sy. No. 121/8, though western boundary of the said land is not the road to Gottigere but a mere lane. MR. No. 4/1945-46 is another fraud. The Revenue entries to the land allegedly bearing old Sy. No. 84 and new Sy. No. 121/8 are based on incorrectly recorded event of the death of Sri. Muniyappa. The plaintiff would have verified the genuineness of the claims of their vendor. Sri. Poornanada Theertha was not in possession of the schedule property. The act of filing W.P. No. 24086/1992 is an extension of fraud by the plaintiff by falsely tagging Sy. No. 84 to the written statement schedule property. The plaintiff has not obtained permission for construction of the structures on the written statement schedule land from the BBMP and she has also not obtained necessary permission for electricity connection from BESCOM. The plaintiff drove away the 3rd defendant from the written statement schedule land and hence with no other course open, they have filed the suit in O.S. No. 7556/2013. The suit for bare injunction is not maintainable. On all these grounds, they have prayed for dismissal of the suit.
5. The plaintiffs in O.S.No.7556/2013 who are the defendants in O.S.No.265/2013 have filed the said suit for declaration, mandatory injunction and possession and pleaded the same facts in the plaint which are pleaded in para 3 to 14 of their additional written statement filed by them in O.S. No.265/2013.
6. The defendant in O.S.No.7556/2013 who is the plaintiff in O.S.No.265/2013 has filed her written statement and has reiterated the same facts pleaded in the plaint of her suit and she has further contended as follows :-
That the plaintiff do not have a definite case against her. The suit is wholly false, frivolous, vexatious and not maintainable either in law or on facts. The plaintiffs have approached the Court with unclean hands and hence the discretionary relief of declaration cannot be granted. The suit is barred by limitation. This suit is filed during October 2013 much after the expiry of the period of limitation of 3 years. The plaintiff is seeking declaration and injunction over the property which was sold to her way back in 1986 after 25 long years. The Court fees paid is insufficient. The plaintiffs have not chosen to make her vendors as parties to the suit and they have also not challenged the sale deeds executed in favour of herself, her husband and son. She has further contended that during his life time Sri. Muniyappa for family requirements, had mortgaged the said property in favour of Sri.Chenna Krishnaiah Shetty S/o Sri. Chenna Nanjundaiah Shetty twice on 23.07.1945 and on 03.09.1954. It evidences that Sri. Muniyappa was the absolute owner of the schedule property. Further, the defendant has pleaded the same facts which are pleaded by her in para 4 to 15 of the plaint in O.S.No.265/2013 in para 12 to 18 and 20. She has further contended that she and her predecessor in title have been in actual, exclusive and uninterrupted possession and enjoyment of the suit schedule property for over 26 years. She has been enjoying the property openly and hostilely to the exclusion of every one else and even if there is any cloud on her title, she has perfected it by way of adverse possession. She has denied the averments made by the plaintiffs in paras 2 to 18 of the plaint as false. But, she has admitted the Order passed by the Assistant Commissioner RA(S) 235/2011-12. She has contended that the said order is stayed by the Deputy Commissioner vide order dated 17.01.2013. She has admitted the acquisition proceedings pleaded in para 4 of the plaint.
She has also admitted the averments made in para 8(a) to 8(e) and para 10 as true. But, she has contended that there is no cause of action to file the suit. On all these grounds, she has prayed for dismissal of the suit in O.S.No.7556/2013.
7. On the basis of the above pleadings, the following issues have been framed :-
O.S.No.265/2013 I S S U ES
1. Whether the plaintiff proves her possession and enjoyment over the suit schedule property as on the date of the suit?
2. Whether the plaintiff prove the alleged interference by the defendants?
3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed?
4. What decree or order?
ADDITONAL ISSUES IN O.S. No. 265/2013
1. Whether the defendants prove that they are in lawful possession and enjoyment of the suit property and suit for bare injunction filed by the plaintiff is not maintainable?
O.S.No. 7556/2013 I S S U ES
1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
2. Whether the plaintiffs further prove that the defendant has illegally constructed structures in the suit schedule property?
3. Whether the defendant proves that the suit is barred by law of limitation?
4. Whether the defendant further proves that the Court fee paid by the plaintiff is not proper and correct?
5. Whether the suit is bad for non-joinder of necessary parties?
6. Whether the defendant prove that she is the absolute owner of the suit schedule property and she is in possession and enjoyment of the same?
7. Whether the plaintiffs are entitled for the relief of declaration, possession and mesne profits as prayed for?
8. What order or decree?
ADDITONAL ISSUE IN O.S. No. 7556/2013
9. Whether the defendant proves that she has perfected her title to the suit schedule property by adverse possession?
8. In view of the clubbing of both the cases, common evidence has been lead by the parties in O.S. No. 265/2013. The plaintiff in that suit has examined herself as P.W.1 and has got marked 79 documents as Exs.P.1 to P.79. The Power of Attorney Holder of the defendants in that suit has examined himself as D.W.1 and has got marked 188 documents as Exs.D.1 to D.188. 9 . I have heard the arguments of both sides and perused the entire materials on record. Having regard to the arguments heard, written arguments filed by both sides and the materials on record, my findings on the above issues are as follows :-
O.S.No .265/2013 Issue No.1 :- In the affirmative Issue No.2 :- In the affirmative Issue No.3 :- In the affirmative Issue No.4 :- As per final order Addl. Issue No.1 :- In the negative O.S.No.7556/2013 Issue No.1 :- In the negative Issue No.2 :- In the negative Issue No.3 :- In the negative Issue No.4 :- In the negative Issue No.5 :- In the negative Issue No.6 :- In the affirmative Issue No.7 :- In the negative Issue No.8 :- As per final order Addl. Issue No.9 :- In the negative R E A SO N S
10. Issue No. 1 and Addl. Issue No.1 in O.S.No.265/2013 and Issue No.1, 2, 6 and issue No. 9 (Addl. issue) in O.S.No.7556/2013 :- Since these issues are interconnected, they are taken up together for discussion to avoid repetition. The case of the plaintiff in O.S. No. 265/2013 is that she is the owner in possession of the suit schedule property. The suit schedule property is shown as the property bearing old Sy. No. 84, new Sy.No.121/8 measuring 1 acre 30 guntas situated at Kothanur Village, Uttarahalli Hobli, Bangalore. The defendants in the said suit have contended in their written statement and additional written statement that they are the owners of the land in Sy. No. 121/8 which is the written statement schedule property. The said property is shown as Sy. No. 121/8 Kothanur Village, Uttarhalli Hobli, Bangalore South Taluk measuring 1 Acre 30 guntas including 1 gunta karab. The suit in O.S.No.7556/2013 is also filed by them showing the same property in the schedule of the plaint.
11. During the course of the arguments, the learned Counsel for the plaintiff in O.S. No. 265/13 argued that the plaintiff is the owner in possession of the suit schedule property. The said property was originally belonged to one Nanjappa and he sold the same under a registered Sale deed dated 16.05.1901 to Muniyellamma as per Ex.P.1 sale deed. Later, the said Muniyellamma along with her sons sold the said property to one Muniyappa under a registered Sale deed dated 08.01.1945 which is marked as Ex.P.49. The said Muniyappa died on 10.05.1966 leaving behind his wife Chinnathayamma and three children. The katha was changed to the name of Chinna thayamma vide IHC No.8/86-87. Later, on 17.09.1986 the said Chinnathayamma and her children sold the suit schedule property in favour of the plaintiff, her husband and her son. The plaintiff's husband died on 25.08.1988 and her son died on 17.02.1987. Now the plaintiff is the absolute owner in possession of the suit schedule property. After the death of her husband, the plaintiff has constructed a residential building and an old age home. She has obtained electricity connection and she has also erected a lift. She has produced the Index of lands, RTC Extracts and Tax paid receipts to prove her possession. The defendants have not produced any documents to prove their title over the suit schedule property. Not even a single tax paid receipt is produced. There is no Revenue document in the name of the defendants. During the year 2012, the defendants approached the Asst. Commissioner for change of katha made in favour of the plaintiff. He passed an order in favour of the defendants without holding proper enquiry. The said order is challenged by the plaintiff and now it is stayed by the Deputy Commissioner. As such, it has to be held that the khatha is still standing in the name of the plaintiff. There was an Acquisition Proceedings with respect to the suit schedule property and the notifications under Section 4(1) and 6(1) of Land Acquisition Act were also issued during the year 1992 and the plaintiff had challenged the same by filing a Writ Petition. The Hon'ble High Court allowed the Writ Petition and the Acquisition Proceedings were quashed. Since from 1986, the plaintiff has been in possession and enjoyment of the suit schedule property as absolute owner. Though, the defendants have filed joint written statement on 15.01.2013, they have not whispered anything about the partition deed in the said written statement. Later, they produced Ex.D.173 which is the Panchayath Parikath. The said document is a created document and the name of the person Muniswamappa @ Hanumappa is a creation of the defendants. The Genealogical Tree produced by them is not supported by any documents which are public records. The name Muniswamappa @ Hanumappa cannot become Hanumappa @ Muniswamappa. The Author of Ex.D.41 is not also not examined. As such, the said genealogical tree cannot be relied upon. There are contradictions in the averments made in their written statement and the additional written statement. The defendants do not have a definite case. They are relying only on two documents which are the Genealogical Tree and the Entry in the RTC made as per the order of Asst. Commissioner. The said order of Asst. Commissioner is stayed and the Genealogical Tree is not a title document. By filing additional written statement, the defendants have not made efforts to correct the mistake i.e., admissions made in the earlier written statement. They have tried to improve their case. Though, they have contended that the plaint schedule property i.e., Sy. No.84 and the property in Sy. No.121/8 are totally different, in his evidence D.W.1 has admitted that both the properties are one and the same. From 1912 to 1964, there are no Revenue records in the name of the defendants. Even from 1999 there are no Revenue records in their name. They have admitted the possession of the plaintiff over the suit schedule property in their written statement. The case of the plaintiff is definite and specific and there are documents in favour of the plaintiff which dates back to a century and the sale deed of the year 1901 is produced. Though, the defendants contend that the properties in Sy. No. 84 and 121/8 are totally different, the materials on record clearly show that they are one and the same and old Sy. No. 84 has been assigned new Sy. No. 121/8. Ex.P.79 clearly show the same and in the said document both the old survey number and the new survey number are mentioned. The defendants have not produced the first page of the said document intentionally to mislead the Court. This amounts to fraud and the Court should take note of the same and stringent action has to be taken against the defendants. With regard to the same, h e has relied on a decision reported in (1995) 1 Supreme Court Cases 421 in the case of Chandrashashi V/s Anil Kumar Verma in which it is held that "indulge in immoral acts like perjury, prevarication and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. Anyone who takes recourse to fraud, deflects the course of judicial proceeding; or if anything is done with oblique motive, the same interferes with the administration of justice. If recourse to falsehood is taken with oblique motive, the same would definitely hinder, hamper or impede even flow of justice and would prevent the Courts from performing their legal duties as they are supposed to do so". He also relied on an observation made in the book of KERR on "Fraud and Mistake" in which it is observed that "it is not easy to give a definition of what constitutes fraud in the extensive signification in which that term is understood by Civil Courts of Justice. The Courts have always avoided hampering themselves by defining or laying down as a general proposition what shall be held to constitute fraud. Fraud is infinite in variety (a). The fertility of man's invention in devising new schemes of fraud is so great, that the Courts have always declined to define it, or to define undue influence, which is one of its many varieties, reserving to themselves the liberty to deal with it under whatever form it may present itself. (b). Fraud, in the contemplation of a Civil Court of Justice, may be said to include properly all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another or by which an undue or unconscientious advantage is taken of another (c). Used to cheat any one is considered as fraud. (d) Fraud in all cases implies a willful act on the part of any one, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to".
12. He further argued that in their written statement, the defendants have admitted that the property claimed by them and the plaintiff is one and the same. Only in their additional written statement, they have pleaded that they are different properties. In para 12(c) of the additional written statement they admit that Sy. No. 84 and 121/8 are similar. In para 13 of the additional written statement they have admitted about the construction made in the written statement schedule property. It show that the properties are one and the same. In Column No. 9 of Ex.P.12, it can be seen that there is an entry regarding sale deed of the year 1945. In column No.12, the name of Hanumaiah is also mentioned. The defendants are falsely claiming that he is their uncle. In Ex.P.15, it can be seen that Spl. L.A.O. has recognized that plaintiff is the owner. It is the plaintiff who has challenged the Acquisition Proceedings. Even in the notices for Acquisition by BDA which are marked as Exs.P.13 and P.14, the name of plaintiff is mentioned. The plaintiff is running an Ashram and photographs are produced to prove the same. Electricity Bills and Tax receipts are also produced to prove the possession of the plaintiff over the suit schedule property. The defendants have produced the documents pertaining to Sy. No. 84 and they are no way connected with the suit schedule property. In view of the same, the documents pertaining to Sy. No. 84 have to be rejected. Ex.D.31 is not connected to the suit schedule property. The persons mentioned in Exs. D.126 and 127 are unconnected parties. By mistake page No. 298 is mentioned as document number in the sale deed marked as Ex.P.47. Though, Exs.D.134 and 135 are produced, no permission is required for running an old age home. There is no law which says that permission is necessary for running an old age home. The defendants have created documents and are falsely claiming right over the suit schedule property. The Asst. Commissioner order is of no use to the defendants as it is stayed by the Deputy Commissioner. Except D.W.1, none of the defendants entered the witness box. The defendants have examined their Power of Attorney and he has no personal knowledge of the facts of the case. As such, his evidence has no value. The parties to the suit should have given evidence and they could have been the best witnesses before the Court. But, the defendants have deliberately avoided the Court. Since there is no pleading with respect to Ex.D.173 at the earliest point of time, it cannot be relied upon. It is a fabricated document to lay a false claim after 70 years. The said partition deed did not see the light of the day for so many years. It is not produced before any authority. It is clearly mentioned in Ex.P.11 that the property is in old Sy. No.84 new Sy. No. 121/8. The said document is not challenged. The defendants have also not challenged the sale deeds which are marked as Exs.P.11 and P.49 all these years. From 1901, there are documents linking the plaintiff to the suit schedule property. The boundaries mentioned in the plaint clearly tally with the boundaries shown in the sale deeds. Existing boundaries are not given by the defendants in their suit, though the relief of declaration is sought by them. As such, the defendants are not entitled to seek the relief of declaration. A person who seeks relief of declaration must be honest and must come with clean hands. There is continuity of entries with respect to the suit schedule property since from 1901 and the plaintiff has produced sufficient documents to prove her title and possession over the suit schedule property. Hence, it has to be held that the plaintiff is the owner and she is in lawful possession of the suit schedule property. There is no continues flow of title and possession in favour of the defendants. The Revenue documents can never be the title deeds. They cannot be relied upon to prove the title over a property. He has relied on a decision reported in ILR 1963 page 881 in the case of B.Ramakrishniah V/s D.R.Madhavakrishniah in which it is held that "the property register extracts and Tax receipts cannot be considered as the evidence of title or of possession and the said entries in the register could have only some corroborative value if independent evidence was adduced to show how it came to be made". He further argued that since from 17.09.1986, the plaintiff has been in possession for more than 30 years and she has enjoyed the property continuously. As such, she has also perfected her title by way of adverse possession. The defendants have failed to prove their title and possession over the suit schedule property. D.W.1 has made several admissions during his evidence. He has admitted that he was not personally present when the defendant No.3 was driven out from the suit property. But, at para 4 of his affidavit he states that he was present at that time. He has admitted that prior to 2012- 13 there was no any entry in favour of any of the plaintiffs in O.S.No.7556/2013. He has also admitted that he has not produced documents to show the title of Madakka and RTC or ROR in the name of Hanumappa @ Muniswamappa. He is also not having personal knowledge with regard to the relationship of the persons in Ex.D.41. He has also admitted that he has not produced any documents to show that Munelli was also called as Munemma. Further, he has very clearly admitted that at page 15 para 12 that property involved in both the suits is one and the same. He has also admitted that they have not challenged Ex.P.11 and P.49 sale deeds in any proceedings. At page 64 he has admitted that the plaintiff is in possession of the suit property in O.S. No. 265/2013 and the land prescribed in Ex.P.1, P.11 and P.49 are one and the same. At page 66 he has admitted that suit property is situated at Kothanur Bangalore. He further argued that D.W.1 has also admitted that about the stay order passed by the Deputy Commissioner. At page 83 he has admitted that the plaintiff is running an old age home in the suit schedule property. As such, the admissions made by D.W.1 and the evidence of P.W.1 and also the documents produced by her clearly show that the plaintiff is in possession and enjoyment of the suit schedule property and the defendants are laying a false claim without any right or title.
13. Per Contra, the learned Counsel for the defendants argued that the suit schedule property was originally belonged to Munella @ Munemma. She acquired the title under the sale deed dated 27.04.1912. She entered into a partition deed with her children in the year 1938. Sy. No. 121 was phoded and sub numbers were given as Sy. No.s 121/1 to 121/13. The suit schedule property was given Sy. No. 121/8 and it was given to the share of first son of Munemma @ Munelli by name Muniswamappa S/o Hanumappa. The said Muniswamappa had 4 children and the property continued in the name of his first son. The plaintiff in O.S.No.265/2013 is claiming the property of the defendants as her property. She is claiming that the old number of the suit property is Sy. No. 84 and it has been changed to Sy. No.121/8. The land in Sy. No. 84 and 121/8 are totally different and they are situated at different places and the land in Sy. No. 84 is not divided and phoded. The defendants have produced the documents show as to how Sy. No. 121 is sub divided. In the village map marked as Ex.D.42, it can be seen that Sy. No. 121 is situated far away from the land in Sy. No.84. A property number can be changed. But, the location cannot be changed. As such, the location is very important. There is cloud over the title of the plaintiff over the plaint schedule property in O.S. No. 265/2013. Inspite of that, the plaintiff did not seek for the relief of declaration. Both the plaintiff and defendants are claiming the same property. The plaintiff is claiming the property of defendants in Sy. No. 121/8 and not Sy. No.
84. In Ex.P.1, which is the sale deed dated 16.05.1901 the recital show that only half portion of 1 Acre 30 guntas is sold. As such, under the said sale deed only 35 guntas is sold and not the entire land. But, the plaintiff is claiming right with respect to the entire property. In Ex.P.49 which is the sale deed dated 08.01.1945, it is mentioned that it is registered in Book No. 33 Volume No. 298. Ex.D.54 is pertaining to the sale deed of Volume No. 298 and it can be seen that it is pertaining to the property situated at Yelahanka. The schedule in Exs.P.1 and P.49 are totally different. Documents produced by the defendants clearly show that the property purchased by the plaintiff is different. There was no Revenue records in the name of plaintiff. Only sub numbers will be given at the time of phodi. A totally different survey number cannot be given. The schedule to Sy. No. 121/8 is totally different. It is surrounded by Sy. Nos. 121/7, 121/9, 115 and 120. But, the schedule in Ex.P.1 is totally different. The schedule in Exs.P.11, P.8, P.9 and P.49 does not tally with the schedule of Ex.P.1 and the extent also does not tally. The property in O.S. No. 265/2013 cannot be identified. Sy. No. 84 is surrounded by Sy. Nos. 82, 85, 88 and other survey numbers. In Ex.P.8, it is mentioned that it is registered in Book No. 33 volume 298. The said property is pertaining to a land in Gunjur Village, Varthur Hobli. Ex.D.136 show the same. No documents are produced by the plaintiff to show that the mortgages under Exs.P.8 and P.9 have been redeemed. To execute a Sale deed, katha should be in the name of the seller. The executors of Ex.P.11 had no katha in their name. There is no mutation to show that old Sy. No. 84 is changed as new Sy. No. 121/8. Though, several transactions have been taken place, there is no mention in the Encumbrance certificates about the change of survey numbers. Even with respect to survey number 84, several transactions have been taken place and Exs.D.84 to D.97 are produced to prove the same. RTC's extracts are also produced and they have been marked as Exs.D.104 to
114. They show the names of several purchasers with respect to Sy. No. 84. The plaintiff is claiming Sy. No.121/8 and not Sy. No. 84. There is no document to show that Sy. No. 84 and 121/8 are one and the same. The plaintiff is claiming a non existent property under the guise of Ex.P.1. In Ex.P.13, there is no mention of old survey number. Ex.P.11 is a fraudulent document created to grab the property of the defendants. In Ex.P.15, the possession of the plaintiff is not shown. The defendants are very innocent persons and they came to know during 2012 about the entries in the Revenue records and immediately they approached the Asst. Commissioner and filed a petition. It was allowed and katha was changed to their names. Since then the khata is standing in their name. In Exs.D.99 to 114 it can be seen that from 1974 to 2012 there are no sub survey numbers and new numbers with respect to Sy. No.84. Ex.D. 125 which is the RTC pertaining to Sy. No. 84 show that the extent of land in the said Survey number is 5 Acre 27 guntas. Ex.D.116 Preliminary record show that the said property was standing in the name of R.R. Palcon. Exs.D.117 to D.120 M.R. Extracts also show that the property in Sy. No.84 is still in existence and no new survey number is given to the said property. Tahsildar has given endorsement as per Exs.D.9 and 12 that there is no connection between Sy. No. 84 and Sy. No. 121/8 and no new number is given to Sy. No. 84. It is also stated that Sy. No. 121 is phoded as 121/1 to 121/13 during phodi durasth. Sy.No.84 has been converted for non agricultural purposes in the name of different persons and Exs.D.141 to 148 clearly show the same. The sketch marked as Ex.D.47 show the location of Sy. No. 84 and it show that it is surrounded by Sy. Nos. 80, 83, 85 and
86. The said boundaries tally with the village map marked as Ex.D.42. The identification of the property is very important and the plaintiff has failed to prove the identity and existence of the property mentioned in the plaint schedule of O.S. No. 265/2013. There are no supporting documents with regard to the entries in Exs.P.3 and P.4. Their should have been some proceedings known to law with regard to the change of survey numbers. But, no documents are produced by the plaintiff to prove the same. There is no phodi durasth in respect of Sy. No. 84. Ex.D.14 show that the house constructed by the plaintiff is in Sy. No. 121/8 and it also show that there is no connection between Sy. No. 121/8 and 84.
14. He further argued that Ex.D.43 is executed in the year 1927 and no phodi durasth was made at that time. Ex.D.32 which is an Agreement dated 17.01.1948 with respect to digging of the borewell and Ex.D.33 is the application for grant of amount and the said application was given on 30.05.1948. These documents show that the property in Sy. No. 121/8 belongs to the defendants and they are in possession of the same. No documents are produced by the plaintiff to prove the existence of the property in O.S. No.265/2013. P.W.1 has admitted in her cross examination that the boundaries shown in Ex.D.53 are correct. In Ex.P.79 which is also marked as Ex.D.47 it is clearly mentioned that Sy. No. 121 is phoded as 121/1 to 121/13. Ex.D.41 is the Genealogical Tree and it is produced to show that Muniyappa had 5 sons. Ex.P.79 is a created document. When Ex.D.47 was already produced, what was the necessity to obtain the same again to mark it in the year 2014. It show that it is a created document. Though, the Revenue documents are not the title deeds they are supporting documents to prove the possession. The defendants have produced title deed and it is marked as Ex.D.43. The plaintiff has failed to establish that Sy. No.84 is changed to Sy. No. 121/8. The documents show that Sy. No. 121/8 all along exists as it is. The burden is on the plaintiff to prove the change of survey number. But, she has failed to prove the same. For the period from 1901 to 1945 there are no Revenue documents in the name of predecessors in title of the plaintiff. Since half portion is sold under Ex.P.1, the vendors of the plaintiff had the right to sell more than half portion. As such, the title is not passed with respect to the entire property under Ex.P.1. The plaintiff also claims that she has perfected her title by adverse possession. But, she contends that she is the owner of the suit schedule property. The plea of adverse possession is available only if she accepts the ownership of the defendants. There is no plea of adverse possession in the plaint earlier. Subsequently, it has been pleaded by amending the plaint. Hence, she cannot take the plea of adverse possession. He also relied on another decision reported in 2016(1) KCR 597 in the case of S.D.Nagaraju and Others V/s Sri. Shivaganga Education and Charitable Trust(R), Sira Town and Others in which it is held that "it is well established that plea of adverse possession is not a pure question of law but a mixed question of fact and law. Therefore, a person, who claims adverse possession should plead and establish on what date he came into possession, what was the nature of his possession, whether factum of possession was known to the other party, how long his possession has continued and his possession was open and undisturbed. A person alleging that he has become owner of immovable property by adverse possession must establish that he was in possession of the property peacefully, openly and in assertion of a title hostile to the real owner". He also relied on another decision reported in 2016 (2)KCCR 1014 in the case of Abdul Hamed V/s Smt.Bilkishbanu and others in which it is held that "Whoever takes plea of adverse possession must admit the title of the adversary. Parties seeking to set up the plea of adverse possession must prove that he or she has had been in possession of the property of the adversary for over a period of 12 years openly to the knowledge and adversely to the interest of original owner". He also relied on another decision reported in ILR 2017 KAR 3505 in the case of Narayan S.Kurdekar V/s Dawal Sab, since deceased by LR's and others in which it is held that " The plea of title based on document of title as well as adverse possession being mutually destructive, no relief could be granted to the plaintiff". He also relied on another decision reported in AIR 2019 Supreme Court Cases 3827 in the case of Ravinder Kaur Grewal and Others V/s Manjit Kaur and Others in which it is held that "To prove adverse possession, there must be Animus possessendi and hostile colour of title is required. Trespasser's long possession is not synonym with adverse possession. Trespasser's possession is construed to be on behalf of the owner. The casual user does not constitute adverse possession". He also relied on another decision reported in AIR 2008 SCW 5682 in the case of Kurella Naga Druva Vidya Bhaskara Rao V/s Galla Jani Kamma alias Nacharamma in which it is held that "mere possession for some years by defendant would not be sufficient to claim adverse possession. Specific evidence has to be placed to show that such possession was hostile possession". He has also argued that the plaintiff has committed fraud on the Court. With regard to the same he has relied on a decision reported in (1994) Supreme Court Cases 1 in the case of S.P.Chengalvaraya Naidu (dead) by LR's Vs. Jagannath (dead) by LRs. and others in which it is held that "Non disclosure of relevant and materials documents with a view to obtain advantage amounts to fraud". He also relied on another decision reported in (2010) 8 Supreme Court Cases 383 in the case of Meghamala and others Vs. G.Narasimha Reddy and others in which it is held that " Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of Courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression fraud involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. An act of fraud on Court is always viewed seriously". He further argued that the existence of property in Sy. No. 121/8 all along is not in dispute. Even the existence of Sy. No. 84 is not in dispute. As such, the plaintiff cannot claim that Sy. No.84 is changed as Sy. No. 121/8. Only if the property is identifiable, the relief of permanent injunction can be granted. There was some dispute and the Appeal before Asst. Commissioner is filed in the year 2012. After that, the names of the defendants are entered in the RTC Extracts. Sy. No. 121/8 shall be the part of 121 and not Sy. No. 84. During the Acquisition Proceedings, there is no mention of Sy. No. 84 in the Gazette Notification. The first page of Ex.P.79 is concocted. Since suit property is not identifiable, no decree can be passed in favour of plaintiff . Absolutely, there are no materials to hold that the plaintiff is the owner in possession of the schedule property in O.S. No. 265/2013. On the other hand, the defendants have produced sufficient documents to prove their title and possession over the said property. The RTC Extracts were standing in the name of defendants when the suit was filed. Hence, prayed to hold that the plaintiff has failed to prove her possession over the property mentioned in the plaint in O.S. No. 265/2013 and to hold that the defendants are the owners in possession of the property shown in O.S. No. 7556/2013.
15. I have perused the entire materials on record. The plaintiff in O.S. No. 265/2013 is not claiming title or possession over Sy. No. 84 which exists even now. The plaintiff is claiming that her property is in old Sy. No. 84 and new Sy. No. 121/8. Even in the schedule to the plaint in O.S. No. 265/13 the suit property is shown as land bearing old Sy. No. 84 and new Sy. No. 121/8 measuring 1 Acre 30 guntas. The defendants have contended in page 7 para 5 of their written statement filed in O.S. No. 265/2013 that in the Village Map of Kothanur Village of the year 1903, Sy. No.84 and 121/8 are shown to be situated at different places. The lands in Sy. No. 84 and 121/8 have different ILR, RR, RTC's, Settlement register and Preliminary Records. The land in Sy. No. 84 measures 5 Acre 27 guntas. The land in Sy. No. 121 measures 30 acres and out of the said 30 acres, the extent of Sy. No. 121/8 is only 1 Acre and 30 guntas. Even in their additional written statement at para 8(g) and 12(a) they have contended that the land bearing Sy. No. 84 is a distinct and separate land measuring 5 Acres 27 guntas and it is now belonging to Sri. R.P.M. Shrinivasulu and others and the written statement schedule land is a distinct and separate land situated nowhere near the land bearing Sy. No. 84. No part of the land bearing Sy. No. 84 has been assigned new survey number. The Power of Attorney Holder of the defendants who is examined as D.W.1 has also reiterated the same in his affidavit filed in lieu of his examination in chief at para 10 and 11. He has further stated that the distance between Sy. No. 121 and Sy. No. 84 of Kothanur Villlage is almost 1½ kms. He has got marked several documents pertaining to Sy. No. 84 of Kothanur Village as Exs.D.16 to D. 28, D.42, D.84 to D.89, D.91 to D.128 and D.141 to D.153. Ex.D.42 is the Village Map of the year 1957 which is prepared again in the year 1988. On perusing the said Village Map, it reveal that the land in Sy. No. 84 and Sy. No. 121/8 are situated at different places. The land in Sy. No. 121/8 is situated on the Northern side and the land in Sy. No. 84 is situated on the Eastern side of Kothanur village. It can be seen that in between the said two survey numbers, several lands in different survey numbers are situated. As such, this document show that the said two survey numbers are totally different and they are situated at different places.
16. Further, Exs.D.22 to 27 are the Pahanisuds pertaining to the land in Sy. No. 84 of the years from 1959-60 to 1966-67. The said documents reveal that the land in Sy. No. 84 measures 5 Acres 27 guntas and it was standing in the name of one Sri. R.R. Palcon earlier. Ex.D.8 which is the Akhar Bandh also reveal that the extent of the said land in Sy.No.84 is 5 Acres 27 guntas. Exs.D.99 to 114 are the RTC Extracts for the period from 1974-75 to 2012-2013 and the said documents also reveal that the land in Sy. No. 84 measures 5 Acres 27 guntas and several transactions have been taken place with regard to the said land. Exs.D.84 to 89 are the Encumbrance certificates and Exs.D.91 to 97 are the Sale Deeds pertaining to the said Sy. Nos. 84 and they also reveal that several Sale transactions have been taken place with regard to the said property in Sy. No. 84 of Kothanur village. Ex.D.91 show that the one Sri. Hanumappa urf Thokappa has sold an extent of 2-05 guntas in Sy. No. 84 to Hanumappa S/o Thimmaswami. Ex.D.92 reveal that one Palcon has sold an extent of 5 Acres in Sy. No. 84 and 1 Acre in Sy. No. 83 in favour of one Muniswamy on 26.06.1958. Ex.D.93 reveal that the said Palcon has again sold an extent of 1 Acre 20 guntas in Sy. No.84 and 0-03 guntas in Sy. No.85 to one Sri. Guruvaraju on 08.09.1961. Ex.D.94 reveal that the said Guruvaraju has sold the properties purchased by him under Ex.D.93 in favour of Sri. B. Vishnumurthy Rao. Ex.D.96 reveal that the said Sri. B. Vishnumurthy Rao has sold the said property in favour of R.P.M Srinivasulu and others on 31.08.1978. Ex.D.97 reveal that the children of Muniswamiraju who purchased the land in Sy. No. 84 under Ex.D.92 have got divided the properties under the said partition deed. Ex.D.98 is an Agreement with regard to the land in Sy. No. 84. In Exs.D.99 to 114, the names of the original owner and also the subsequent purchasers are mentioned in Col. No. 9. In Ex.D.115, the name Sri. Palcon is shown in Col. No. 7. In Ex.D.116 which is the Index Lands, the name of Maria Palcon is shown in Col. No. 9. The Mutation register Extracts which are marked as Exs.D.117 to 120 also show that the Kathas have been changed as per the sale deeds and the partition deed. The said documents further show that presently the katha is standing in the name of Ramakrishnaraju, R.P. Shrinivasulu and others. Exs.D.122 to 124 are the Endorsements issued by the Tahsildar with regard to non availability of Kurda Tippani, atlas and atlas Tippani with respect to Sy. No.84. Ex.D.125 is the Settlement register of Sy. No. 84 which is of the year 1966 and in the said document also the name of R.R. Palcon is shown. Exs.D.126 to 128 are the Proceedings of RRT, Appeal before KAT and LRF Proceeding No. 206/86-87 with respect to the said land in Sy. No. 84. The documents which are marked as Exs.D.141 to 153 are with respect to the conversion of land in Sy. No. 84 for nonagricultural purposes. All these documents clearly show that the land in Sy. No. 84 was originally belonged to R.R. Palcon and it has been sold to several persons and now it is standing in the name of Ramakrishnaraju, R.P. Shrinivasulu and others and the total extent of the land in Sy. No. 84 is 5 Acres 27 guntas. The land shown in the schedule of the plaint in O.S. No. 265/13 is old Sy. No. 84 and new Sy. No. 121/8 and the extent is shown as 1 Acre 30 guntas. The said property is totally different from the land in Sy. No. 84 which is shown in Exs.D.16 to D. 28, D.42, D.84 to D.89, D.91 to D.128 and D.141 to D.153. As such, we can safely come to a conclusion that the land in Sy.No. 84 which is still in existence is not the land claimed by the plaintiff or the defendants. As such, the above said documents produced by the defendants are not at all relevant to this case and they are no way connected with the suit schedule property in O.S. No. 265/2013 and O.S. No. 7556/2013.
17. Now we have to see whether the plaintiff and defendants are claiming the same property or different properties. The property shown in the schedule of the plaint in O.S. No. 265/2013 is described as the land bearing old Sy. No. 84 and new Sy. No. 121/8 measuring 1 Acre 30 guntas situated at Kothanur Village, Bangalore South Taluk. The property mentioned in schedule of plaint in O.S. No. 7556/2013 and the additional written statement filed in O.S. No.265/2013 is described as the property bearing Sy. No.121/8 Kothanur Village, Uttarahalli, Bangalore South Taluk measuring 1 Acre 30 guntas. Though, the boundaries of the properties mentioned in the schedule of both the suits are totally different, the new survey number in O.S. No. 265/2013 and the survey number in O.S. No. 7556/2013 and the extent are one and the same. The plaintiff in O.S. No. 265/2013 has pleaded in para 4 of the plaint that she, her husband and son purchased the suit schedule property under a registered Sale deed dated 17.09.1986 from the legal heirs of late Muniyappa and they were in possession and enjoyment of the suit schedule property as absolute owners. Her husband died on 20.05.1988 and her son also died on 17.02.1987. Subsequently, the khatha of the said property changed to her name and now she is in possession and enjoyment of the same. The defendants in the said suit who are the plaintiffs in O.S. No. 7556/2013 have denied the case of the plaintiff and they have contended in para 5 of their written statement that the suit schedule property was purchased by Smt. Munelli from one Smt. Madakka under a Sale deed dated 27.04.1912 and after her death, the said property was devolved upon their father Muniswamappa @ Hanumappa and after his death they have become the owners and they are in possession of the property in Sy. No. 121/8 measuring 1 Acre 30 guntas situated at Kothanur Village. At para 9 of their written statement, they have contended that the plaintiff has illegally and unauthorizedly occupied the portion of land in suit schedule property as a trespasser without their permission. At para 13, they have contended that the plaintiff is not the owner of the suit schedule property in question and she is not in possession and enjoyment of the suit schedule property and they are in possession and enjoyment of the suit schedule property and the RTC's demonstrate the same. Further, they have contended in para 4 of their additional written statement that the land in Sy. No. 121 and Sy. No.84 of Kothanur Village are distinct and different. At para 3 they have contended that the plaintiff has falsely averred that the alleged plaint schedule property belongs to her and alleged predecessor in title only, with a view to lay a fraudulent claim to their property. Even in para (g) of para 8 of the plaint in O.S. No. 7556/2013 they have contended that the land bearing Sy. No. 84 is a distinct and separate land and no part of the said land has been assigned new Sy. No. 121/8. But, at para 11 they have contended that the defendants and her supporters drove away the third defendant from the dwelling unit in the written statement schedule land in an attempt to wipe out any trace of the defendants possession of the schedule land. The defendant in the said suit who is the plaintiff in O.S. No. 265/2013 has contended at para 65 of her written statement that she is the absolute owner in possession of the suit schedule property. The plaintiffs being complete strangers to the suit schedule property have filed frivolous suit to knock off the valuable property belonging to her. As such, if we carefully peruse the pleadings in the both the suits, it can be seen that though the boundaries appears to be different, the property claimed by the parties to both the suits is one and the same.
18. The present survey number of the property in O.S.265/2013 and the survey number of the property in O.S.No.7556/2013 is shown as Sy. No. 121/8 and the extent of the property in both the suits is shown as 1 Acre 30 guntas. The plaintiff who is examined as P.W.1 has stated in her evidence that the suit property is the land in old Sy. No. 84 and new Sy. No. 121/8. Though, the defendants have contended that the property of the plaintiff is in Sy. No. 84 and though D.W.1 has stated in his examination in chief at para 18 page 12 that "the property described in the schedule of the plaint in O.S. No. 265/2013 is all together different from the property described in the schedule of O.S. No.7556/2013, he has clearly admitted at page 59 of his cross examination that "his father was ousted from the property involved in O.S. No. 7556/2013 and O.S. No.265/2013. The property involved in both the suits in one and the same". He has also stated at page 63 of his cross examination that " it is true to suggest that the plaintiff in O.S. No. 265/2013 has built a building in Sy. No. 121/8 and residing there ". At page 73 he has stated that "the address of the plaintiff in O.S. No. 265/2013 shown in Ex.D.44 is the address of the suit schedule property in O.S. No. 7556/2013". In the decision relied on by the Counsel for the plaintiff reported in AIR 1974 Supreme Court Cases 471 in the case of Nagindas Ramdas V/s Dalpatram Iccharam alias Brijram and Others, it is held that "Admissions, if true and clear, are by far the best proof of the facts admitted and they by themselves can be made the foundation of the rights of the parties". As such, the evidence of P.W.1 and the above admission of D.W.1 and the pleadings of both sides clearly show that both the plaintiff and defendants are claiming right and title over one and the same property which is Sy. No. 121/8 of Kothanur Village, measuring 1 Acre 30 guntas. The case of the plaintiff is that the old number of the said property is Sy. No. 84 and new number is 121/8. The defendants are contending that the survey number of the said property i.e.,121/8 is never changed and it remained as it is from the date of phodi durasth and they are the owners of the said property. As such, absolutely there is no doubt about the fact that the parties to both the suits are claiming ownership and possession with respect to the same property i.e., the property in Sy. No. 121/8 of Kothanur Village measuring 1 acre 30 guntas.
19. Further, the burden of proving issue No.1 in O.S. No.265/2013 and the issues No.6 and 9 in O.S.No. 7556/2013 is on the plaintiff in O.S.No.265/2013. The burden of proving issue Nos.1 and 2 in O.S.No.7556/2013 is on the plaintiffs of the said suit who are the defendants in O.S.No.265/2013. As such, the plaintiff in O.S. No. 265/2013 has to prove her lawful or settled possession over the property in Sy.No.121/8 of Kothanur Village and also that she is the owner of the said property. On the other hand, the defendants have to prove that they are the owners of the property in Sy.No.121/8 of Kothanur Village and the defendant in O.S. No. 7556/2013 has illegally constructed structures over the said property. Since the suit in O.S.No.7556/2013 is filed for declaration of title, mandatory injunction and possession, the plaintiffs in that suit have to prove their title and possession over the suit property. The Counsel for the plaintiff has relied on a decision reported in 2017(2) Supreme Court Cases 269, in which in the case of Union of India and Others V/s Vasavi Cooperative Housing Society Limited and Others it is held that " In a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against them, in the absence of the establishment of the plaintiff's own title, the plaintiff must be non-suited". The Counsel for the defendant has relied on the decision reported in 2014 SAR (Civil) 266 in the case of Sebastiao Luis Fernandes (D) by LR's and Others V/s K.V.P. Shastri and Others in which it is held that " The burden of proof lies upon a person who has to prove the facts and it never shifts and only the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to prove the plaintiff's title". As such, in view of the principles laid down in the above decisions since the relief of declaration is sought by the plaintiffs in O.S. No. 7556/2013 who are the defendants in O.S. No. 265/2013, the burden lies heavily on them to prove their title over the property bearing Sy. No. 121/8 of Kothanur Village, measuring 1 Acre 30 guntas. Only if they raise initial presumption in their favour, then the onus shifts on the plaintiff in O.S. No.265/2013 to disprove the same and to prove that she is the owner in possession of the said property.
20. The case of the plaintiffs in O.S.No. 7556/2013 who are the defendants in O.S.No. 265/2013 is that the land in Sy. No.121 of Kothanur Village was totally measuring 30 Acres and on 20.09.1928, the said land was sub divided into Sy. Nos. 121/1 to 121/13 and and an extent of 1 Acre 30 guntas was assigned as Sy. No.121/8 which is the suit schedule property. Under the sale deed dated 27.04.1912, Smt. Madakka and others sold the said land in favour of Munelli @ Munemma. After that, in the year 1938 the said Munelli @ Munemma and her sons got divided their properties that were available to them and in the said partition the land in Sy. No. 121/8 fell to the share of her first son Muniswamappa @ Hanumappa. He continued to be possession and enjoyment till his death in the year 1975. After his death, they become entitled to the said land. The Power of Attorney holder of the defendants who is examined as D.W.1 has reiterated the above facts in his evidence. He has given evidence on the strength of the Power of Attorneys which are marked as Ex.D.2 and D.178. The Counsel for the plaintiff argued that D.W.1 who is the Power of Attorney holder of the defendants has no knowledge about the transactions pertaining to the suit schedule property and as such his evidence cannot be relied upon. On the other hand, Counsel for the defendants argued that there is no bar to prosecute the case through a Power of Attorney. The evidence of Power of Attorney is admissible and he can depose with regard to the facts which are within his knowledge and he can also depose about the documents which he knows. The Counsel for the defendant has relied on a decision reported in ILR 2006 KAR 3129 in the case of Bhimappa and Others Vs. Allisab and others in which it is held that " there is no express bar made in the provisions of CPC to debar the Power of Attorney to be examined as a witness on behalf of the parties to the proceedings. Power of Attorney is a competent witness and is entitled to appear as such. His evidence cannot be refused to be taken into consideration on the ground that the parties to the suit did not choose to appear as witnesses in the witness box". He also relied an another decision reported in ILR 2015 KAR 635 in which in the case of Sajida Banu V/s Halema Banu and others it is held that " the Court cannot prevent a party from prosecuting the litigation or defending it through a Power of Attorney Holder. A party has a right to be represented by a Power of Attorney Holder. Once a Power of Attorney Holder enters the witness box and gives evidence, whether that evidence has to be acted upon or whether it is a direct evidence or hearsay evidence, is to be decided by the Court at the time of appreciation of the evidence". As such, in view of the principles laid down in the above decisions and since D.W.1 is none other than the son of the defendant No.2 he can depose with respect to the facts which are within his knowledge and also about the documents secured and produced by him. Further, since the title over the suit schedule property is in dispute, the documentary evidence is more relevant than the oral evidence. As such, it cannot be said that the evidence of D.W.1 has to be rejected in toto. The Power of Attorney holder of the defendants who is examined as D.W.1 has reiterated the facts alleged by the defendants in their written statement in O.S. No. 265/2013 and the plaint in O.S. No. 7556/2013. To prove the title of the defendants over the property in Sy. No. 121/8 D.W.1 has got marked the Genealogical tree as Ex.D.41. Village Map as Ex.D.42. Certified copy of the sale deed dated 27.04.1912 as Ex.D.43. Pahanisud as Ex.D.6, Aakar Bandh as Exs.D.4, D.5 and Ex.D.78, Hissa survey Tippani as Ex.D.47. Secondary reclass Tippani as Ex.D.48. Preliminary Record as Ex.D.49. Index of lands as Exs.D.30, D.50 and D.51. Patta Book, an Agreement and another document with respect to digging of a well as Ex.D.31 to D.33. He has also got marked the RTC Extracts of Sy.No.121/8 as Exs.D.34 to 37 and D.55 to D.72. Mutation Register Extract as Ex.D.73. Settlement Register Extract as Ex.D.75. Survey Sketches as Exs.D.76 and D.77. Encumbrance Certificates as Exs.D.79 to D.83 and D.137, the certified copy of the sale deed which is marked as Ex.P.1 as D.154. He has also got marked the photographs as Exs.D.164 to D.171 and a Panchayath Parikath of the year 1938 as Ex.D.173.
21. On the other hand, the case of the plaintiff in O.S. No. 265/2013 is that the suit schedule property was originally belonged to one Sri. Nanajappa and he had sold the same to one Smt. Muniyellamma under the sale deed dated 16.05.1901. After that, the said Muniyellamma and her children sold the same to one Muniyappa under a registered sale deed dated 08.01.1945. The said Muniyappa died on 10.09.1966. After that, his wife Chinnathayamma and her children sold the said property to herself, her husband and son under a registered sale deed dated 17.09.1986. Since her husband and son are no more, she is the absolute owner in possession of the suit schedule property. The plaintiff who is examined as P.W.1 has reiterated the same in her affidavit filed in lieu of her examination in chief. To prove her case, she has got marked the certified copy of the sale deed dated 16.05.1901 as Ex.P.1. Encumbrance Certificate for the period 01.04.1900 to 30.06.1994 as Ex.P.2. Index of lands and record of rights as Exs.P.3 to P.7 and 10. Two mortgage deeds as Exs.P.8 and P.9. The sale deed executed in her favour as Ex.P.11 and also the sale deed executed in favour of Muniyappa as Ex.P.49. Further, she has also got marked the RTC Extract as Ex.P.12. Patta Book as Ex.P.21. Tax paid Receipts as Exs.P.33 to P.35 and P.51 and 52, encumbrance certificate as Exs.P.53 and 54. She has further got marked the documents regarding electricity connection, Lift and electricity bills as marked as Exs.P.36 to P.38, P.50 and P.56. Ex.P.48 is the Order of Deputy Commissioner dated 17.01.2013 in RP No.295/12-13. Ex.P.79 is the original tippani of Sy.No.121. She has also stated in the plaint and in her evidence that she is running an old age home in the suit schedule property. To prove the said fact she has got marked the applications given for admission to the Ashram and also the photographs as Exs.P.39 to P.47, Ex.P.55, P.57 to P.63, and P.65 to P.78.
22. To prove their title, the defendants are mainly relying on the sale deed marked as Ex.D.43. In the sale deed, the name of the purchaser is shown as Munemma D/o Eramuniyappa. The property is shown as the land in Sy. No. 121 measuring 1 Acre 30 guntas. As such, the name of the purchaser is shown as Munemma in the said sale deed. In the sale deed relied on by the plaintiff which is marked as Ex.P.1, the name of the purchaser is shown as Muniyellamma. In the preliminary record marked as Ex.D.49, Index of land marked as Ex.D.30 and D.50, Pahanisud marked as Ex.D.6, RTC Extracts marked as Exs.D.55 to D.57 produced by the defendants and the Index of lands, Record of Rights marked as Exs.P.3 to P.7, P.10 and P.79 produced by the plaintiff, the name of the owner of the land in Sy. No. 121/8 is shown as Munelli W/o Munella. Calling the person by name Muniyellamma as Munelli is more probable than calling a person by name Munemma as Munelli. Except the name mentioned as Munelli in Ex.D.41 in the Genealogical Tree which is prepared on the say of D.W.1, no other documents are produced by defendants to show that Munelli and Munemma are one and the same person. The said Ex.D.41 genealogical tree is got prepared by D.W.1 and it has been sworn by him before a Notary. It is not the genealogical tree issued by the Village Accountant or any Officer of the Revenue Department. No other witnesses are examined by the defendants to prove the relationship in the said documents. The age of D.W.1 is shown as 30 years in the said document and he has given details of four generations. In the decision relied on by the Counsel for the plaintiff reported in AIR 1983 Supreme Court Cases 684 in the case of State of Bihar and others V/s Sri.Radha Krishna Singh and others, it is held that "As there is a tendency on the part of an interested person or a party in order to grab, establish or prove an alleged claim, to concoct, fabricate or procure false genealogy to suit their ends, the Courts in relying on the genealogy put forward must guard themselves against falling into trap laid by a series of documents or a labyrinth of seemingly old genealogies to support their rival claims. Where genealogy is proved by oral evidence, the said evidence must clearly show special means of knowledge disclosing the exact source, time and the circumstances under which the knowledge is acquired, and this must be clearly and conclusively proved. When a case of a party is based on a genealogy consisting of links, it is incumbent on the party to prove every link thereof and even if one link is found to be missing then in the eye of law the genealogy cannot be said to have been fully proved". The Counsel for the plaintiff also relied on a decision rendered in RFA No.1421/2011 dated 04.09.2014 in the case of Durgappa V/s A.K.Mallappa in which the Hon'ble High Court is held that "the genealogy tree issued by the Village Accountant cannot be considered as an acceptable document in the light of the very author who is the Village Accountant being not examined. As such, in view of the principles laid down in the above decisions and since the genealogical tree is seriously disputed by the other side, in the absence of evidence of persons who has special knowledge about all the persons and the relationship shown in the genealogical tree it is difficult to believe and accept Ex.D.41.
23. Further, in Ex.D.49 Preliminary Records it is mentioned that Sy. No. 121 totally measures 30 acres 1 guntas. The property shown to be sold under Ex.D.43 sale deed is 1 acre 30 guntas in Sy. No. 121. As such, in the said sale deed the survey number mentioned is 121 and not 121/8. The defendants have not produced any materials to hold that the said sale deed is acted upon and the possession is delivered as per the recitals of the said sale deed. Further, the defendants have not pleaded anything about the partition of the year 1932 as per Ex.D.173 in the written statement filed by them in O.S.No.265/2013. Only in their additional written statement, they have pleaded about the partition of the year 1938 between Munelli and her sons and got marked Ex.D.173 through D.W.1. The said document is dated 15.02.1938. As observed above, there is no pleading with respect to the said document in their written statement filed earlier in O.S. No. 265/2013 on 15.01.2013. D.W.1 has admitted in his cross examination at page 36 "it is true to suggest that there is no any reference with regard to Ex.D.173 in the written statement filed by us in O.S. No. 265/2013". He has further stated at page 37 that "it is true to suggest that for the first time I have referred with regard to the division of property in the year 1938 in my additional written statement at para No. 3(d), filed on 10.01.2017. It is true to suggest that there is no reference with regard to Palu parikath i.e., Ex.D. 173 in para No.3 (d) of plaint in O.S. No. 7556/2013 filed by us". Though, the defendants alleged that there was a partition in the year 1938 between Munelli @ Munemma and her sons and the suit schedule property was fallen to the share of her first son Muniswamappa @ Hanumappa, no katha has been changed to his name on the basis of the said document which is marked as Ex.D.173. If really, there was any such partition in the year 1938 and Ex.D.173 was executed, definitely there should have been change of katha to the name of Muniswamappa @ Hanumappa with regard to the same. As such, it is difficult to believe the contention of the defendants regarding the alleged partition of the year 1938. In the decision relied on by the Counsel for the plaintiff reported in (2011) 6 Supreme Court Cases 555 in the case of Janak Dulari Devi and Another V/s Kapildeo Rai and Another in which it is held that "When what is pleaded is not proved, or what is stated in the evidence is contrary to the pleadings, the dictum that no amount of evidence, contrary to the pleadings, howsoever cogent, cannot be relied on". As such, since there is no pleading with regard to the Palu parikath marked as Ex.D.173 in the earlier written statement filed by the defendants in O.S. No. 265/2013, the said document cannot be considered at all. Hence, the said document marked as Ex.D.173 will not come to the aid of the defendants to prove their title over the suit schedule property.
24. Further, the defendants have also got marked a Patta Book, an agreement and also a document regarding an application for grant of aid to dig a well and they are marked as Exs.D.31 to D.33. It can be clearly seen that several corrections have been made in Exs.D.31 and D.32 with respect to the name, Village and also the survey number. Ex.D.31 Patta Book does not contain seal and signature of the Village accountant. It has got some entries with respect to the years 1955-56 and 1956-57. It is also shown that the katha was standing in the name of Hanummappa urf Muniswamappa. If really the said patta book was issued in his name, then the khata should have been standing in his name and there should have been an entry in the RTC Extract regarding the same. Without the entry in the RTC Extract and without a mutation entry, there is no chance of issuance of a patta book. Further, there should also be entries in the Index of lands and record of rights. But, there are no entries in the Revenue records in the name of Hanummappa urf Muniswamappa. The corrections made in the said Patta Book and also the agreement marked as Ex.D.32, creates a serious doubt with regard to the genuineness of the said documents. Even in Ex.D.33, it can be seen that the ink of the writings on the right side is totally different from that of the ink of the writings on the left side. As such, it is difficult to believe and accept the documents marked as Exs.D.31 to D.33. Further, though the defendants have got marked the Hissa Survey Tippani and Secondary reclass Tippani as Exs.D.47 and D.48, they have not produced the first page of the same. The plaintiff has got marked the same document as Ex.D.79 and in the said document it can be seen that it is mentioned in the first page that the old survey of 121 is Sy. No. 84. This show that the defendants have tried to conceal the first page of Exs.D.48 and D.49. This fact also creates a doubt over the title of the defendants with respect to the suit schedule property i.e., Sy. No. 121/8.
25. Further, the defendants in O.S. No. 265/2013 have contended that Muniswamappa @ Hanumappa was in possession till his death in the year 1975 and after the death of said Muniswamappa @ Hanumappa, they became entitled to the suit schedule property. Though, they have taken this contention, there is no change of katha after the death of Munelli to the name of Muniswamappa @ Hanumappa. Even after his death in the year 1975, the katha was not changed to the name of defendants. The defendants have also not produced a single tax paid receipt to show that they are the owners in possession of Sy. No. 121/8. D.W.1 has admitted in his cross examination at page 38 that "it is true to suggest that prior to 2012-13 there was no any entry in favour of any of the plaintiffs in O.S. No. 7556/2013 showing their names in the RTC's pertaining to suit schedule property in O.S. No. 7556/2013". He has also stated at page Nos. 42 and 43 that" it is true to suggest that I have not produced any RTC stood in the name of Hanumappa @ Muniswamappa". He has further stated at page 69 that "he cannot say why Papanna did not get his name entered in the Revenue records after partition in 1938". He has further stated at page 77 of his cross examination that "it is true to suggest that names of plaintiff in O.S. No. 7556/2013 were not mentioned in any Revenue records in respect of suit property, prior to Exs.D. 72 and D.73". As such, the materials on record show that there are no entries in the name of defendants or their ancestors till they got their name entered in the mutation and RTC extract as per the order passed by the Asst. Commissioner marked as Ex.D.44. Absolutely, there are no entries in the name of defendants or their ancestors in the revenue records for about 100 years i.e., from 27.04.1912 which is the date of the sale deed marked as Ex.D.43. The order passed by the Asst. Commissioner as per Ex.D.44 is admittedly stayed by the Deputy Commissioner in the appeal preferred by the plaintiff. D.W.1 has admitted in his cross examination at page 86 that "it is true to suggest that as per Ex.P.48, the order of the Asst. Commissioner i.e., Ex.D.44 was stayed". As such, the order of the Asst. Commissioner regarding change of khata in favour of the defendants in O.S.No.265/2013 is also off no help to them to prove their title or possession over the property in Sy.No.121/8.
26. On the other hand, the plaintiff to prove that she is the owner in possession of the suit schedule property in O.S. No.265/2013 has produced three sale deeds and they have been marked as Exs.P.1, P.47 and P.11. Further, she has also produced the Index of Lands and Records of rights pertaining to the Sy. No. 121/8 and they have been marked as Exs.P.2 to P.7. In Exs.P.5 and P.6, it can be clearly seen that there is an entry in col. No. 4 in which it is mentioned that Sy. No. 84 has been renumbered as Sy. No. 121/8 at the time of resurvey and durasth. Ex.P.5 is obtained in the year 1977 i.e., on 28.10.1977 and this fact show that long back there is an entry in the Index of lands that the old number of Sy. No. 121/8 is Sy. No. 84. Further, Ex.D.79 is the original Tippani of Sy. No. 121 and in the said document also it can be seen that it is clearly mentioned in the first page that the old survey number of 121 is 84. These two documents fully supports the case of the plaintiff in O.S. No. 265/2013 that the old number of Sy. No. 121/8 is Sy. No. 84 . Even in Ex.P.2 which is the Encumbrance Certificate it can be seen that several sale deeds have been executed with respect to Sy. No. 84 between the period from 01.04.1900 to 30.06.1924. It can also be seen that transactions have been taken place with respect to more than 20 acres of land. Ex.D.49 show that Sy. No.121 measures 30 Acres. The documents produced by the defendants with respect to Sy. No. 84 which are marked as Exs. P.99 to P.116 show that the extent of the Sy. No. 84 is only 5 Acres 27 guntas. As such, the entries in Ex.P.2 also strengthen the case of the plaintiff that the old Sy. No. 84 has been changed as new Sy. No.121/8 at the time of resurvey. Though, the defendants have contended in their written statement at para 2 that the document No 298 in Book I volume 33 which is registered on 18.04.1907 and it is with respect to the land in Sy. No. 22 of Kenchanahalli Village, Yelahanka, it can be seen that the document number of Ex.P.1 is not 298 and it is 1210. It can also be seen in Ex.P.1 that the said number 298 is not the document number and it is the page number. The same is clearly mentioned in Ex.P.2 Encumbrance Certificate. As such, the contention of the defendants that the document No. 298 is not with respect to the suit schedule property and it is of a different property, cannot be accepted at all.
27. Further, Ex.P.49 reveal that it is the sale deed executed by Muniyellama and her children Bodiga and Putta in favour of Muniyappa S/o Hanumappa. It is pertinent to note that the purchaser under the sale deed marked as Ex.P.1 is Muniyellamma and one of the executant of the sale deed marked as Ex.P.49 is also Muniyellamma. The said document is dated 08.01.1945 and it has been registered on 11.01.1945. Further, Ex.P.47 is registered as document No. 3032 and the same number is mentioned in Ex.P.3 Index of lands. Ex.P.5 Record of Rights also show the entry regarding the said sale deed and it is clearly mentioned that the property has been sold by Muniyellamma and her children Bodiga and Putta in favour of Muniyappa S/o Hanumappa. In both these documents, the survey number is shown as 121/8. In Ex.P.5, it is also mentioned that old Sy. No. of 121/8 is Sy. No. 84. Further, the plaintiff has also got marked two registered mortgage deeds executed by Muniyappa in favour of one Chennakrishnaiah Shetty and they have been marked as Exs.P.8 and P.9. The said documents have been executed in the years 1945 and 1954 and even in the said documents there is clear recital regarding the sale deed dated 08.01.1945 marked as Ex.D.47 which is registered as document No.3032. The boundaries shown in all the above three deeds are also one and the same. These documents clearly show that the old number of suit schedule property was Sy. No.84 and they further show that the property was purchased by Muniyellamma under Ex.P.1 and later she has sold the same in favour of Muniyappa S/o Hanumappa and he had mortgaged the same under Ex.P.8 and P.9. Further, Ex.P.11 reveal that the wife of said Muniyappa by name Chinnathayamma and her children have sold the said property in favour of the plaintiff , her husband and son on 17.09.1986. It can be seen in Ex.P.7 that the sale made in favour of plaintiff is also entered in the Record of Rights long back in the year 1986-87. Further, it can also be seen in the said document that there is an entry regarding the changing of the katha of the property in Sy. No. 121/8 to the name of Chinnathayamma who is the wife of Muniyappa as per IHC No. 8/86-87. The said document also reveal that the katha has been changed to the name of plaintiff, her husband and her son vide MR. No. 18/86-87. As such, there is continuity of flow of title and there are three sale deeds of the years 1901, 1945 and 1986 in support of the case of the plaintiff.
28. As such, Exs.P.4, P.5 and P.79 clearly show that the property purchased by Muniyellamma was the property in old Sy. No. 84 and new Sy. No. 121/8. Further, D.W.1 has admitted in his cross examination at page 63 that "he has not challenged Exs.P.11 and P.49 sale deeds in any proceedings". He has also admitted at page 64 that "it is true to suggest that the lands described in Exs.P.1, P.11 and P.49 are one and the same". This admission of D.W.1 is contrary to the contention of the defendants that the property of the plaintiff is Sy. No. 84 and not Sy. No. 121/8. There is a clear and unequivocal admission by D.W.1 that the properties mentioned in all the three sale deeds are one and the same. Further, he has also admitted at page 79 of his cross examination that " it is true to suggest that the name Muniyappa mentioned in Ex.D.85 is the same Muniyappa who is referred to in the sale deed Ex.P.11". He has also admitted at page 83 that "it is true to suggest that Ex.D.133 bearing IHC No. 8/86-87 indicates the name of plaintiffs vendor Smt.Chinnathayamma as khatedar after the death of her husband Muniyappa". He has further admitted at page 85 that "it is true to suggest that Muniyappa stated in Ex.D.133 and P.49 are one and the same". At page 60, he has clearly admitted that "it is true to suggest that the vendors in Ex.P.11 sale deed are the LRs of Muniyappa". As such, all these admissions of D.W.1 and the documents marked as ExsP.1, P.11, P.47 and P.3 to P.7 show that Muniyellamma had purchased the suit property under Ex.P.1 and later sold the same to Muniyappa under Ex.P.47 and after that she and her children have sold the same to the plaintiff, her husband and son. The said documents also clearly show that the old number of suit property is 84 and new number is 121/8.
29. Further, the defendants have contended in their written statement filed in O.S. No. 265/2013 that they are in possession and enjoyment of the property in Sy. No. 121/8 and they are cultivating the suit schedule property and they have raised Coconut trees, Sapota plants and other trees in the schedule land and they have also constructed sheds in the same. But, no documents are produced by them regarding the same except few photographs. The same cannot be believe at all in the absence of corroborating documents. If really they are residing in the suit schedule property by constructing sheds, they should have definitely obtained electricity connection. But, they have not produced any electricity bill or any other document regarding the same. Further, though there are entries in the name of Muniyappa S/o Hanumappa in the Index of lands, Record of rights marked as Exs.P.3 to P.7 which show that he has purchased the property under the sale deed marked as Ex.P.47 dated 08.01.1945, the said entries are not challenged by the defendants till the year 2011-2012.
30. Further, the defendants have got marked RTC Extracts pertaining to the suit schedule property i.e., Sy. No.121/8 as Exs.D.55 to D.72. It can be seen that in Ex.D.55 which is the RTC Extract of the year 1973-74, the name of Munelli W/o Munella is shown in col. No. 9 and then the name of Sri. Muniyappa S/o Hanumappa appears in Col. No.9 from the year 1974-75 till 1981. It is pertinent to note that it is clearly mentioned in Col. No.9 that the entry with respect to the name Muniyappa has been made as per sale deed. Further, it is also pertinent to note that in col. No. 10 it is shown that katha has been made out in his favour as per MR. No.4/45-46. Though, the said mutation is not produced, in the RTC it has been mentioned that it is made on the basis of the sale deed and as per MR. No.4/45-46. Ex.P.47 is also executed in the year 1945 and as such the said entry definitely gives rise to a presumption that it has been made with regard to the same. Though, the defendants have contended at page 8 of their written statement that the name Muniyappa shown in the RTC extract is that of grand son of Munelli, the entry that the said name is entered as per the sale deed negatives the contention of the defendants and it show that it is the entry made in favour of the purchaser of property under Ex.P.49 Sri. Muniyappa. Further, D.W.1 has admitted at page 79 of his cross examination that " it is true to suggest that the name Muniyappa mentioned in Ex.D.85 is the same Muniyappa who is referred to in the sale deed Ex.P.11". He has also admitted at page 85 that "it is true to suggest that Muniyappa stated in Ex.D.133 and P.49 are one and the same".
31. Further, Ex.D.58 and D.60 show that the RTC entry has been made out in the name of plaintiff, her husband and son from the year 1986-87. Exs.D.59 and D.61 to D.71 reveal that the katha was standing in the name of Wilson Garden House Building Co-operative Society from 2002-03 to 2011-12. Though, the RTC was standing in the name of Muniyappa since from 1974-75 and though the katha was changed to the name of Chinnathayamma and later changed to the name of plaintiff in the year 1986-87, the said mutations and RTC entries were also not challenged by the defendants till the year 2011-12. D.W.1 has also admitted at page 60 that " it is true to suggest that we have not challenged the entries effected in Exs.P.3 to P.6 in any proceedings". Ex.D.72 reveal the katha was changed to the name of defendants in O.S. No. 265/2013 as per MR No.H15/2012-13. Ex.D.73 is the mutation register extract regarding the same and it reveal that the katha has been changed to the name of the defendants as per the order passed by the Asst. Commissioner in RA(S) No. 235/2011-12 dated 20.12.2012 as per Ex.D.44. The plaintiff has produced the order passed by the Deputy Commissioner with respect to the appeal preferred by her against the order of the Asst. Commissioner under Ex.P.44 and the said stay order copy has been marked as Ex.P.48. As such, the mutation made in favour of the defendants has been stayed by the Deputy Commissioner. The defendants have kept quite for almost 100 years from the date of the first sale deed which is marked as Ex.P.1. Though, they are claiming right through a sale deed i.e., Ex.D.43 which is more than 100 years old, they have not taken any action to get an entry in the Revenue records. These facts also goes against the contention of the defendants that they are the owners in possession of the suit schedule property.
32. Further, the plaintiff has alleged in O.S. No. 265/2013 at para 9 of the plaint that Special Acquisition Officer had issued a preliminary notification dated 16.01.1989 under Section 9(1) of Land Acquisition Act and Final notification on 15.01.1990 under Section 6(1) of Land Acquisition Act and he had also passed award dated 22.07.1992. Further, at para 10 she has stated that she had challenged the same in W.P. No. 24086/1992 and it was allowed by the Hon'ble High Court of Karnataka by its order dated 03.08.1998 and the notifications and also the award were quashed. The plaintiff who is examined as P.W.1 has got marked two notices issued by BDA as Exs.P.13 and P.14 and also the order passed by the Hon'ble High Court of Karnataka as Ex.P.16. On perusing Ex.P.16, it reveal that the said Writ Petition is preferred by the plaintiff in the year 1992 and it has been allowed in the year 1998. Though, the said Writ Petition was pending for 6 years, the defendants have not either got impleaded in the said Writ Petition nor they have challenged the Acquisition Proceedings separately. The said order is passed in the year 1998 and the defendants have got changed the katha to their name as per the order of Asst. Commissioner in the year 2012. As such, challenging of the Acquisition Proceedings by filing a Writ Petition by the plaintiff is a strong circumstance which prove her title and possession over the suit schedule property. The defendants though claim that they are the owner in possession of the suit schedule property since from the time of their ancestors, they did not challenge the said Acquisition Proceedings. In their written statement they have not stated anything as to why they did not challenge the Acquisition Proceedings. They have only stated that in view of the allowing of the Writ Petition, the plaintiff will not derive any right, title over the suit schedule property. In their additional written statement they have contended at page 6 para 4 that since they are uneducated they did not take any steps to question the proposed acquisition and they left it to their fate that they would receive suitable compensation and the act of the plaintiff in filing the Writ Petition No.24086/1992 is an extension of fraud and it is filed by falsely tagging up Sy. No. 84. D.W.1 has stated in his cross examination at page 53 that "he did not know for what reason his father and uncles waited for two years i.e., from 1988-1990 before giving an application as per Ex.D.130". He has admitted at page 54 that "it is true to suggest that no inward entry is endorsed in Ex.D.130 and it does not contain signature or initial of any officer or endorsement". It can be seen in Ex.D.130 that there is no endorsement to show that the said application is given to the Land Acquisition Officer. Even no documents are produced to show as to whether any action or proceedings are initiated on the said application. As such, Ex.D.130 is not sufficient to prove that the defendants have challenged the Acquisition Proceedings. No person will keep quite for more than 20 years when their land is acquired which is situated within the city. As such, the filing of writ petition by the plaintiff in O.S. No. 265/2013 challenging the Acquisition Proceedings and the inaction on the part of defendants regarding the said Acquisition is a strong ground in favour of the plaintiff of the said case and it creates serious doubt with regard to the claim of title over the suit property by the defendants. As such, all the circumstances observed above creates a serious doubt with regard to the title of the defendants in O.S. No. 265/2013 who are the plaintiffs in O.S. No. 7556/2013 over the property in dispute i.e., Sy. No. 121/8 of Kothanur Village.
33. Further, the plaintiff in O.S. No. 265/2013 has alleged in para 14 of the plaint that she being the absolute owner of the suit schedule property, she is running an Ashram by name "Theertha Ashrama" an old age home (Vruddashrama), Yoga and holistic centre and a School in the suit schedule property for the benefit of the society and in service of the humanity. The plaintiff who is examined as P.W.1 has reiterated the said facts in her affidavit filed in lieu of her examination in chief. In support of her oral evidence, she has got marked the order of Sanction of electricity connection and it is marked as Ex.P.34. It show that on 23.03.2002, the said order is passed. This document show that long back in the year 2002 itself, the plaintiff has obtained electricity connection. Exs.P.36 and 37 are the order passed permitting to install a lift and Ex.P.50 is the order regarding arranging of power of supply to the building. These documents also show that construction is made in the suit schedule property long back and electricity connection is also obtained by the plaintiff. Ex.P.56 is the electricity bill and Exs.P.55, P.65 to P.77 are the Photographs which also show the existence of building in the suit schedule property. Further, The plaintiff has also got marked the application given by the applicants for admission to the Ashram and they have been marked as Exs.P.30 to P.47 and Exs.P.57 to P.63. She has also got marked two tax paid receipts as Ex.P.35. In the said tax paid receipts there is clear mention regarding the Theertha Ashrama. As such, the above said documents regarding electricity connection, photographs and also the applications of the persons staying in the name of Vruddashram clearly show the existence of the building in the suit schedule property and also show that the said building was constructed long back by the plaintiff in O.S. No. 265/2013 and she is running an Ashram in the said building. Though, the defendants have contended in para 14 of their written statement that the plaintiff is running Vruddashram, Krishnarao Road, Basavanagudi, Bangalore. D.W.1 has admitted in his cross examination at page 63 that " it is true to suggest that the plaintiff in O.S. No. 265/2013 has built building in Sy. No. 121/8 and residing there. It is true to suggest that building existing in Sy. No. 121/8 has not been constructed either by his father or his uncles". Further, he has admitted at page 64 that "it is true to suggest that the suit property in O.S. No. 265/2013 is in possession of plaintiff of the said suit". At page 83, he has admitted that "it is true to suggest that the defendant in O.S. No.7556/2013 is running old age home in the suit property described in the said suit". He has also admitted at page 84 that "it is true to suggest that photos at Sl. No. 1, 3, 4 and 7 marked as Ex.P.55 show buildings in suit property in O.S. No. 7556/2013". As such, though they have taken a contention in their written statement at para 14 page 13 that the plaintiff is running Vrudhashram at Gorgisadan, Krishnarao road, Basavanagudi, Bangalore-4 and not in the suit schedule property, these admissions of D.W.1 clearly show that the said pleading is wrong and the plaintiff is running Vruddashram in the suit schedule property i.e., in Sy. No. 121/8. As such, the above admissions made by D.W.1 and also the RTC entries in the name of plaintiff since from the year 1986 show that the plaintiff is in possession of the suit schedule property. These facts also show that the defendants were never in possession of the suit schedule property i.e., Sy. No. 121/8. Absolutely, there are no documents to show that they are in possession of the suit schedule property and they are cultivating the same.
34. Further, the plaintiff who is examined as P.W.1 has stood well in her cross examination. She has clearly stated about her title and possession over the suit schedule property and also the flow of title in her favour. Nothing is elicited in her cross examination to disbelieve her evidence. The oral evidence of P.W.1 is also well supported by the documentary evidence which are marked as Exs.P.1 to P.79. She has produced the title deeds which clearly show the flow of title from the year 1901 to 1986. The Revenue documents also show the entries regarding the said sale transactions. Absolutely, there is no evidence to believe that the defendants in O.S. No. 265/2013 are the owners in possession of the suit schedule property i.e, Sy. No. 121/8. The plaintiff has placed sufficient materials to prove that she is in lawful possession and enjoyment over the suit schedule property as on the date of the suit. On the other hand, the defendants who are the plaintiff in O.S. No.7556/2013 have failed to prove that they are the absolute owners of the suit schedule property. They have also failed to prove that the plaintiff has illegally constructed structure in the suit schedule property. Since the materials on record show that the plaintiff is in lawful possession of the suit schedule property as owner of the same, the question of she perfecting the title to the suit schedule property by adverse possession does not arise. Since there is no cloud over the title of the plaintiff in O.S. No. 265/2013 over the suit schedule property, the question of filing comprehensive suit for declaration also does not arise. Since the defendants have filed the suit for declaration, the issue of title of both the parties with respect to the suit schedule property is discussed in detail. As such, it has to be held that the suit filed by the plaintiff for bare injunction is maintainable. Hence, I answer issue No.1 in O.S. No. 265/2013 in the affirmative, Addl. issue No.1 in the negative. Further , in view of the above discussion, I also answer issue Nos. 1 and 2 and Addl. Issue No.9 in O.S. No. 7556/2013 in the negative and issue No.6 of the said suit in the affirmative.
35. Issue No.2 in O.S. No. 265/2013 :- The plaintiff in O.S. No. 265/2013 has specifically alleged in para 16 of the plaint that on 18.12.2012 the defendants along with their henchmen tried to enter into the suit schedule property belonging to her. With great difficulty, she resisted the same. She has further stated that once again on 02.01.2013, the defendants tried to enter into the suit schedule property and she resisted the same and they threatened her that they would come with more force and dispossess her. The plaintiff who is examined as P.W.1 has reiterated the same. The contesting of the suit by the defendants claiming right over the suit schedule property itself show the interference cause by the defendants and the plaintiff has also clearly stated about the same in her evidence. Hence, I answer this issue in the affirmative.
36. Issue No.3 in O.S.No.7556/2013 :- The defendants in the said suit have taken contention in para 5 that the construction in the suit schedule property is made during April 2008 and this suit is filed after expiry of three years. The defendant has purchased the property in the year 1986 and this suit is filed in the year 2013. As such, the suit is barred by law of limitation. The plaintiffs have shown several causes of action for filing of the suit in para 16 of the plaint. They have also shown that the filing of suit in O.S. No. 265/2013 and the filing of MFA No. 6495/2013 are also causes of action to file the suit. As such, they have shown several continuing causes of action. The defendant has filed the earlier suit in O.S. No.265/2013 on 05.01.2013. After their appearance, the plaintiffs of this suit filed their written statement on 15.01.2013. After that, they have filed this suit in O.S. No. 7556/2013 in the same year claiming title over the suit schedule property. Since, the plaintiff in O.S. No. 265/2013 filed the said suit for injunction, they have filed this Counter suit for declaration of title. Since it is filed within the limitation period of 3 years from the filing of the said suit, where the title of the plaintiffs in this suit is disputed, it cannot be said that the suit in O.S. No. 7556/2013 is barred by limitation. Hence, I answer this issue in the negative.
37. Issue No. 4 in O.S. No. 7556/2013 :- The defendants in the said suit have taken a contention that the suit filed by the plaintiff is not properly valued and Court fees paid is insufficient. The plaintiffs had earlier valued the suit under Section 7 (2) and Section 24(a) of Karnataka Court Fees and Suit Valuation Act and they had paid Court fees of Rs.25/- and later they filed another valuation slip and paid the Court fees of Rs.13,50,600/-. The defendant has not placed any materials to show that the value of the property is more than the Valuation made by the plaintiffs. As such, there are no grounds to hold that the suit is not properly valued and Court fees paid is insufficient. Hence, I answer this issue in the negative.
38. Issue No.5 in O.S. No.7556/2013 :- The defendant in the said suit has taken a contention that the suit is bad for non-joinder of necessary parties contending that her vendors are not made as parties. But, the plaintiffs are contending that the defendant illegally occupied a portion of the suit schedule property and she has denied their title over the suit schedule property. The defendant has contended that she is the owner in possession of the suit schedule property. As such, it is not necessary to make the vendors of the defendant as parties to the suit. As such, it cannot be said that the suit is bad for non-joinder of necessary parties. Hence, I answer this issue in the negative.
39. Issue No. 7 in O.S. No. 7556/2013 :- In view of the findings on issue Nos. 1, 2 and 6, the plaintiffs have failed to prove their title over the suit schedule property. As such, they are not entitled for reliefs of declaration, possession and mesne profits. Hence, I answer this issue in the negative.
40. Issue No. 3 in O.S. No. 265/2013 :- The materials on record clearly show that the plaintiff is in lawful possession and enjoyment of the suit schedule property. She has also given convincing evidence regarding the alleged interference caused by the defendants. The Counsel for the defendants argued that the suit for bare injunction is not maintainable since there is cloud on the title of the plaintiff and she should have filed a comprehensive suit for declaration and injunction. The suit property is also not identifiable and as such the relief of injunction cannot be granted. He has relied on a decision reported in AIR 2008 Supreme Court 2033 in the case of Anathula Sudhakar V/s P.Buchi Reddy (dead) by LR's and others in which it is held that "if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issues in a suit for mere injunction. He also relied on a decision reported in (1996) 6 Supreme Court Cases 699 in the case of Nahar Singh V/s Harnak Singh and Others, in which it is held that " Unless the property is identifiable, no decree can be granted in respect to the same". He also relied on another decision reported in AIR 2003 Madras 374 in the case of John Sylem V/s Chanthana muthu Pillai (died) and others in which it is held that "As plaintiff has failed to establish identity of suit property, he is not entitled to a decree". But, the materials on record clearly show that plaintiff is in lawful possession and enjoyment of the suit property in O.S. No. 265/2013. The defendants have filed the suit in O.S. No.7556/2013 for relief of declaration with respect to the same property and a detailed discussion is made with respect to the title of the said property. The title and lawful possession of the plaintiff in O.S. No. 265/2013 over the suit schedule property i.e., Sy. No. 121/8 of Kothanur Village is clear and there is no cloud over the same. As such, it cannot be said that the suit for bare injunction is not maintainable. As for as the identification of the suit schedule property is concerned, D.W.1 has clearly admitted that the suit schedule property in both the suits are one and the same and the plaintiff is in possession of the same and as such it cannot be said that the suit property is not identifiable. Since the plaintiff has established her lawful possession over the suit schedule property and also the interference caused by the defendants, she is entitled for the relief of permanent injunction as sought. Hence, I answer this issue in the affirmative.
41. Issue No. 8 in O.S. No. 7556/2013 and issue No.4 in O.S. No. 265/2013 :- In view of the findings on issue Nos. 1 to 3 and Addl. issue No. 1 in O.S. No. 265/2013 and issue No. 1, 2, 6 and 7 in O.S. No. 7556/2013, the suit of the plaintiff in O.S. No. 265/2013 is liable to be decreed and the suit of the plaintiffs in O.S. No. 7556/2013 is liable to be dismissed. Hence, the following is made :-
OR D ER The suit of the plaintiff in O.S.No. 265/2013 is decreed. The defendants, their agents, their men or anyone claiming through or under them are hereby restrained by way of permanent injunction from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.
The suit filed by the plaintiffs in O.S.No.7556/2013 is hereby dismissed.
Both the parties shall bear their own costs.
Office is directed to draw decree accordingly.
Keep the original judgment in O.S.No.265/2013 and a copy thereof in the connected O.S.No.7556/2013. (Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 2nd day of July 2020.) (Jaishankar) C/C I Addl.City Civil & Sessions Judge, Bengaluru.
A N NE X UR E WITNESSES EXAMINED FOR THE PLAINTIFFS :-
PW.1 :- Vidya Tirtha DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:-
ExP.1 Certified copy of Sale deed dated
16.05.1901
Ex.P.2 Encumbrance certificate from 01.04.1900
to 30.06.1924
Exs.P.3 to 7 Index of Lands extracts and Records of
rights extracts
Exs.P.8 and 9 Mortgage Deeds
Ex.P.10 Index of lands
Ex.P.11 Original sale deed dated 17.09.1986
Ex.P.12 RTC of the year 1985-86 of Sy.No.121/8
Exs.P.13 to 15 Notices issued by the BDA
Ex.P.16 Certified copy of the Order in Writ Petition
No. 24086/1992
Ex.P.17 Endorsement issued by the BDA dated
16.07.1990
Ex.P.18 Endorsement issued by Spl. LAO dated
14.05.2003
Ex.P.19 Death Certificate of Vidhya Shankar
Ex.P.20 Death Certificate of Poornanada Thirtha
Ex.P.21 Patta Book
Exs.P.22 to 27 Tax Paid Receipts
Exs.P.28 to 35 Electricity Bills and four receipts Ex.P.36 License to install lift Ex.P.37 Certificate issued by Deputy Chief Electricity Inspector Ex.P.38 Lift Handover certificate Exs.P.39 to 47 Applications for Admission to the Ashram Ex.P.48 Stay Order passed by D.C. Ex.P.49 Original Sale deed dated 18.01.1945 Ex.P.50 Letter dated 02.11.2009 issued by Asst.
Executive Engineer
Exs.P.51 & 52 Two tax paid receipts
Exs.P.53 & 54 Two encumbrance certificates for the
period from 01.04.20014 to 31.03.2012
and from 01.04.2012 to 04.01.2013
Ex.P.55, P.55(a) Nine photos and six negatives Ex.P.56 Electricity bills Exs.P.57 to 63 Seven applications submitted by inmates of Ashrama seeking admission Ex.P.64 Endorsement issued by Hulimavu Police Station Exs.P.65 to 78 Photos Ex.P.79 Copy of Tippani WITNESSES EXAMINED FOR THE DEFENDANTS:-
D.W. 1 :- Ravikumar.Y
DOCUMENTS MARKED ON BEHALF OF THE
DEFENDANTS :-
Ex.D.1 Copy of application given by plaintiff dated
02.12.2000
Ex.D.2 Power of attorney dated 12.09.2017
Ex.D.3 Death Certificate of Muniyappa
Ex.D.4 Certified copy of Aakar Bandh in respect of
Sy.No.121/12 and13
Ex.D.5 Certified copy of Aakar Bandh in respect of
Sy.No.121/1 to 13
Ex.D.6 Certified copy of pahani
Exs.D.7,9 Endorsement of Tahasildar dated 24.04.2015 Exs.D.8, Copy of applications give to Tahasildar dated 10 and 11 24.02.2015 Ex.D.12 Endorsement dated 02.03.2015 issued by Tahasildar Ex.D.13 Certified copy of Atlas in respect of Sy.No.121/8 Ex.D.14 Certified copy of RRT proceedings, bearing No.154/15-16 Ex.D.15 Endorsement issued by Tahasildar Exs.D.16 Certified copy of M.R extracts relating to to 21 Sy.No.84 Exs.D.22 Certified copy of RTC's of Sy.No.84 to 27 Ex.D.28 Certified copy of Aakar Bandh register of Sy.No.84 Ex.D.29 Copy of building plan submitted by the plaintiff before the BESCOM Ex.D.30 Certified copy of index of land of Sy.No.121/8 Ex.D.31 Patta Book of Sy.No.121/8 Ex.D.32 Agreement dated 17.01.1948 Ex.D.33 Letter dated 12.03.1946 issued by Amaldar Exs.D.34 RTC extract of Sy.No.121/8 to 37 Ex.D.38 Attested copy of building plan submitted by plaintiff before BBMP Ex.D.39 Endorsement dated 12.09.2017 issued by BBMP Ex.D.40 Endorsement issued by BBMP dated 13.09.2017 Ex.D.41 Genealogical tree of the family of Munelli Ex.D.42 Village map of Kothanur village Ex.D.43 & Certified copy of sale deed dated 27.04.1912.
43(a) Typed copy of Ex.D.43 is Ex.D.43(a) Ex.D.44 Certified copy of order passed by Asst.
Commissioner dated 20.12.2012 in
RA(S)235/2011-12
Exs.D.45 Endorsement issued by Tahasildar & 46 Ex.D.47 Certified copy of Hissa Survey Tippani Ex.D.48 Certified copy of Secondary Reclass Tippani Ex.D.49 Certified copy of Preliminary Record Ex.D.50 Certified copy of Index of Land Ex.D.51 Certified copy of Index of Land Ex.D.52 Certified copy of Gazette Notification dated 01.02.1999 Ex.D.53 Certified copy of Gazette Notification dated 12.01.1989 Ex.D.54 Certified copy of sale deed dated 18.04.1907 Ex.D.54(a) Typed copy of Ex.D.54 Exs.D.55 18 certified copies of the RTC extracts to 72 Ex.D.73 Mutation extract bearing No.H15/2012-13 Ex.D.74 Certified copy of RR extract in respect of Sy.No.121/8 Ex.D.75 Certified copy of Survey Settlement Register Exs.D.76 Two Survey Sketches & 77 Ex.D.78 Certified copy Aakarbandh Exs.D.79 Five Encumbrance Certificates to 89 Exs.D.90 Certificate copy of sale deed dated 06.01.1928 &90(a) along with its typed copy Exs.D.91 Certified copy of sale deed dated 20.04.1940 & 91(a) along with its typed copy Exs.D.92 Certified copy of the sale deed dated & 92(a) 26.06.1958 along with its typed copy Exs.D.93 Certified copy of the sale deed dated & 93(a) 08.09.1961 along with its typed copy Exs.D.94 Certified copy of the sale deed dated & 94(a) 09.10.1972 along with its typed copy Exs.D.95 Certified copy of the sale deed dated & 95(a) 07.11.1973 along with its typed copy Exs.D.96 Certified copy of the sale deed dated & 96(a) 31.08.1978 along with its typed copy Exs.D.97 Certified copy of the sale deed dated & 97(a) 07.03.1981 along with its typed copy Ex.D.98 Certified copy of registered agreement of sale dated 11.02.1994 Exs.D.99 Certified copies of RTC extracts of Sy.No.84 to D.114 Ex.D.115 Certified copy of Index of Land of Sy.No.84 Ex.D.116 Certified copy of Preliminary Record of Sy.No. 84 Ex.D.117 MR extracts pertaining to Sy.No.84 to 120 Ex.D.121 Certified copy of Aakarbandh pertaining to Sy.No.84 Ex.D.122 Endorsement dated 31.10.2011 issued by & 124 Tahasildhar with respect to Sy.No.84 Ex.D.125 Certified copy of settlement register of Sy.No.84 Ex.E.126 Certified copy of order passed in RRT (III) 880/1985-86 Ex.D.127 Certified copy of order in Appeal No.270/1989 dated 02.07.1991 Ex.D.128 Certified copy of the order sheet in LRF(83) 202/1986 -87 Ex.D.129 Certified copy of the letter of Wilson garden House building cooperative society dated 29.07.1999 Ex.D.130 Copy of letter dated 24.10.1990 given to Spl.
LAO Ex.D.131 Certified copy of sale deed dated 07.08.1986 Ex.D.132 Certified copy of M.R.No.18/86-87 of Kothanuru village, obtained under RTI Act Ex.D.133 M.R. extract relating to Sy.No.121/8, measuring 1 acre 30 guntas Ex.D.134 Endorsement issued Social Welfare office dated 08.07.2013 Ex.D.135 Endorsement dated 26.07.2013 issued under RTI Act Ex.D.136 Certified copy of sale deed dated 10.08.1901 Ex.D.137 Certified copy of the encumbrance certificate dated 21.01.2013, of Sy.No.121 Ex.D.138 Endorsement issued by Tahasildar dated 01.08.2014 Ex.D.139 Endorsement issued by Tahasildar 26.12.2017 Ex.D.140 Certified copy of encumbrance certificate dated 26.04.2017 Ex.D.141 Certified copy of conversion order dated 03.07.2004 in respect of Sy.No.84 & 85/1 Ex.D.142 Certified copy of intimation dated 22.06.2004 issued by D.C. office in respect of Sy.No.84, 85/1 Ex.D.143 Certified copy of report of Tahasildar, dated 11.06.2004 along with check list Ex.D.144 Certified copy of report of Deputy Tahasildar, Nada Kacheri, dated 11.06.2004 Ex.D.145 Requisition submitted by R.I., sarakki Circle, Bengaluru, dated 10.06.2004 along with mahazar copy Ex.D.146 Certified copies of challans & 151 Ex.D.147 Certified copy of the sketch of Sy.No.84 Ex.D.148 Certified copy of conversion order dated 03.07.2004 in respect of Sy.No.84 Ex.D.149 Certified copy of intimation dated 22.06.2004 issued by D.C. Office in respect of Sy.No.84 Ex.D.150 Requisition submitted by R.I., Sarakki Circle, dated 10.06.2004 Ex.D.152 Certified copy of report of Tahasildar, dated 11.06.2004 Ex.D.153 Certified copy of report of Deputy Tahasildar, Nada Kacheri, dated 11.06.2004 Ex.D.154 Certified copy of complaint filed in PCR No.6634/2013 on the file of V ACMM Court Ex.D.155 Certified copy of FIR in Crime No.224/2013 Ex.D.156 Certified copy of the order sheet in PCR.No.6634/2013 of Hulimavu PS Ex.D.157 Certified copy of 'B' report submitted by P.I. Hulimavu PS Ex.D.158 Certified copy of protest memo Exs.D.159 13 photos along with CD to D.171 Ex.D.172 CD Ex.D.173 Panchayat Parikath dated 15.02.1938 Ex.D.174 Certified copy of sale deed dated 12.01.1939 Ex.D.175 Encumbrance certificate dated 30.01.2018 Ex.D.176 Certified copy of MR.No.1/77-78 Ex.D.177 Death certificate of Pappanna Ex.D.178 Power of Attorney dated 28.06.2018 Exs.D.179 Certified copy of Moola Tippani of Sy.Nos.97 to to D.183 99, 120 to 124 of Kothanur village Exs.D.184 Certified copy of Survey Tippani of Sy.Nos.81 to to D.187 83 and 85 of Kothanur village Ex.D.188 Endorsement issued by Hulimavu Police Sd/-
(Jaishankar) C/C I Addl.City Civil & Sessions Judge, Bengaluru.