Bangalore District Court
Sri.Narendra Babu.A vs Sri.N.Venkatesh on 9 December, 2020
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BANGALURU.
(CCH74)
PRESENT:
Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bangaluru.
Dated this the 9th day of December, 2020.
O.S. No.26882/2012
Plaintiff: Sri.Narendra Babu.A,
S/o.Sri.Arasappa,
aged about 33 yrs,
R/at.No.54, Roopena Agrahara,
Madiwala Post,
Bangaluru560068.
(By Sri.S.G.Muniswamy Gowda -
Adv.)
V/S
Defendant: Sri.N.Venkatesh,
S/o.Sri.Nallappa,
aged about 47 yrs,
R/at.No.6A, Khatha No.9/1,
Roopena Agrahara,
Begur Hobli,
Bangaluru South Taluk,
Bangaluru.
(Deft.Exparte)
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O.S. No.26882/2012
Date of Institution of the suit 25.09.2012
Nature of the (Suit or pro
note, suit for declaration and DECLARATION AND
possession, suit for injunction, INJUNCTION SUIT
etc.)
Date of the commencement of
23.11.2016
recording of the Evidence.
Date on which the Judgment
09.12.2020
was pronounced.
Year/s Month/s Day/s
Total duration 08 02 14
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
(CCH74), Bangaluru.
JUDGMENT
The plaintiff has filed this suit for declaration and possession, declaring that he is the absolute owner of the suit schedule property. Further sought for direction directing the defendant to hand over the vacant possession of the suit schedule property, further prayed for mandatory injunction for removal of illegal and unlawful structure put up over the suit schedule property, in case if the defendant failed to 3 O.S. No.26882/2012 remove the illegal construction over the suit schedule property, appoint the Court Commissioner to demolish the same at the cost of defendant and consequential relief of permanent injunction.
2. Brief facts of the plaintiff's case:
It is the case of the plaintiff that he is the absolute owner and in possession of the property bearing New Sy.No.9/8 (portion of old Sy.No.9/2) to an extent of 18 guntas including half gunta kharab, situated at Roopena Agrahara Village, Bangaluru Hobli, Bangaluru South Taluk.
Further plaintiff contended in the plaint that originally the property bearing Sy.No.9/2, measuring 4 acres 35 guntas and 5 guntas of kharab, situated at Roopena Agrahara, Bengaluru Hobli, Bengaluru South Taluk, was belongs to one Smt.Puttamma, grandmother of the plaintiff herein.
Said Puttamma had two children by name Arasappa and Krishnappa. Said Arasappa is father of the plaintiff and Krishnappa died in the year 1981 leaving behind him, his 4 O.S. No.26882/2012 wife and children. Smt.Puttamma, the grandmother of the plaintiff died in the year 1984. Due to family dispute between the father of the plaintiff and legal heirs of the Krishnappa, the father of the plaintiff has filed partition suit, O.S. No.1819/1994 in respect of family properties including suit property Sy.No.9/2, situated at Roopena Agrahara, Bangaluru. The said suit was decreed on 27.10.2000 and father of the plaintiff has initiated FDP proceedings in FDP No.37/2004. During the pendency of the final decree proceedings the parties in the FDP proceedings have entered into compromise and said FDP proceedings was ended in compromise before Lok Adalath.
As per compromise decree passed by Lok Adalath, an extent of 2 acres 17 ½ guntas in Sy.No.9/2, situated at Roopena Agrahara, Bangaluru Hobli, Bengaluru South Taluk, was fallen to the share of plaintiff's father amongst other properties. And as per compromise, the final decree was 5 O.S. No.26882/2012 drawn and the same was registered before the competent authority.
Thus, the father of the plaintiff herein had acquired the right, title, interest and possession over the property bearing Sy.No.9/2, measuring 2 acres 17 ½ guntas situated at Roopena Agrahara, Bangaluru. Further it is the case of the plaintiff that, the property bearing Sy.No.9/2 measuring 2 acres 17 ½ gunta situated at Roopena Agrahara has been changed in the name of plaintiff's father. Thereafter, out of 2 acres 17 ½ guntas in Sy.No.9/2, situated at Roopena Agrahara, 30 guntas was sold to one Krishna Reddy under registered sale deed dated 19.7.2007 by the father of the plaintiff and remaining 1 acre 27 ½ guntas in Sy.No.9/2 is retained.
The Arasappa has 3 daughters and one son; i.e., plaintiff herein. There was a partition in between the family members of the plaintiff, same was effected by registration of partition deed dated 10.11.2008. As per said partition an 6 O.S. No.26882/2012 extent of 3 ¼ guntas allotted to the sisters each, of the plaintiff in Sy.No.9/2 and remaining extent of land in Sy.No.9/2 situated at Roopena Agrahara is fallen to the share of plaintiff, which is, suit schedule property. From the date of partition dated 10.11.2018, the plaintiff, his sisters are in separate possession and enjoyment of their respective share in Sy.No.9/2 as per partition.
Thereafter, the plaintiff and his sisters got converted the land for nonagriculture purpose as per order dated 13.7.2010 and 12.1.2011 except suit schedule property.
With a intention to develop the property, the plaintiff and his sisters have entered into joint development agreement dated 27.12.2010, with Sri.Parvatha Builders Pvt. Ltd., in respect of land bearing Sy.No.9/9 measuring 3 ¼ guntas, Sy.No.9/10 measuring 3 ¼ guntas, portion of land bearing Sy.No.9/11 measuring 15 ¾ guntas and portion of land bearing Sy.No.9/8 measuring 8 ½ guntas in total measuring 29 ½ guntas situated at Roopena Agrahara 7 O.S. No.26882/2012 Village, Bangaluru Hobli, Bangaluru South Taluk and suit schedule property retained by the plaintiff.
3. Such being the fact the defendant who claims to the be the owner of the adjacent property bearing property No.6A, khatha No.9/1 situated at Roopena Agrahara, Bangaluru Hobli, Bangaluru South Taluk, measuring East to West: 12 ft., and North to South: 30 ft., has made efforts to encroach upon the suit schedule property. In order to protect the property the plaintiff has put up temporary compound. But, defendant tried to encroach upon the plaintiff's property and threatened the plaintiff with a dire consequences.
The defendant has filed suit O.S. No.25186/2012 before the CCH22, alleging that plaintiff herein is trying to demolish the existing building on his property and defendant has obtained exparte injunction order in respect of his property. The plaintiff herein has appeared in the said suit and filed written statement. Taking advantage of exparte order the defendant herein has demolished the compound 8 O.S. No.26882/2012 wall situated in Sy.No.9/8 (Old No.9/2). Since the defendant has already encroached upon the suit schedule property, hence, the plaintiff herein has filed this suit for declaration, possession and other consequential reliefs.
4. This court has issued the summons to the defendant through court and RPAD. Summons to the defendant through court returned unserved as address not found and summons to the defendant through RPAD returned with a endorsement "not claimed". Since, the defendant not claimed, hence, it is deemed to be served the summons on defendant and on 6.1.2013, the defendant placed exparte. During the pendency of the suit the plaintiff got amended the plaint and produced amended plaint. When this suit was posted for judgment, on perusal of the records it was found that plaintiff has paid deficit court fee. Hence, in order to give an opportunity to the plaintiff to pay sufficient court fee, the suit was posted for clarification on court fee. After hearing on plaintiff side, this court has directed the plaintiff 9 O.S. No.26882/2012 to pay deficit court fee and plaintiff has paid deficit court fee of Rs.27,200/ through DD on 7.10.2020 and office of this court has endorsed in the order sheet for having received the court fee paid by the plaintiff.
5. I have gone through the averments of the plaint, and material placed before the court, on going through the same, the points that would arise for my consideration are as follows: POINTS FOR CONSIDERAITON
1. Whether plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether plaintiff proves that the defendant has encroached over the suit schedule property and constructed over the suit property by encroachment and liable to be removed by way of mandatory injunction?
3. Whether plaintiff proves that he is entitled for the possession of suit schedule property?
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O.S. No.26882/2012
4. Whether plaintiff proves that he is entitled for the equitable relief of permanent injunction against the defendant in respect of suit schedule property?
5. Whether plaintiff is entitled for the relief sought in the plaint?
6. What order or decree?
6. In order to prove his case, plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.19. The defendant is placed exparte. On the application filed by the plaintiff this court has appointed Court Commissioner for spot inspection and Commissioner has filed his report along with photo and CD. And heard argument of the learned counsel for the plaintiff.
7. My answers to the above points are as follows: Point No.1: In the Affirmative, Point No.2: In the Affirmative, Point No.3: In the Affirmative, Point No.4: In the Affirmative, 11 O.S. No.26882/2012 Point No.5: In the Affirmative, Point No.6: As per the final order, for the following: REASONS
8. POINT No.1: In order to prove his case, the plaintiff got himself examined as P.W.1 and got marked Ex.P.1 to P.19. P.W.1 is examined by filing affidavit in lieu of examination in chief, reiterating the averments of the plaint. It is the case of the plaintiff that, the suit schedule property and other properties are fallen to the share of the plaintiff's father by virtue of compromise decree compromised in FDP No.37/2001, which has been registered before the competent authority along with other properties. Thereafter, there was partition between plaintiff and his sisters as per registered partition deed dated 10.11.2008. The plaintiff and his sisters got divided the properties fallen to the share of their father and after division as per registered partition deed dated 10.11.2008, 'D' schedule property shown in the registered 12 O.S. No.26882/2012 partition deed including suit property, fallen to the plaintiff as his share. And thereafter the plaintiff and his sisters have jointly converted their share into nonagricultural land and plaintiff has retained the suit schedule property without conversion and kept vacant.
9. The said vacant portion of plaintiff's share is the suit schedule property. Such being the fact, the defendant is neighbouring adjacent owner, had encroached over the suit schedule property, the plaintiff has resisted the encroachment, but, the defendant did not heed the request of the plaintiff and encroached over the suit schedule property and constructed illegally and unauthorisedly over the encroached area and taken possession of the encroached area of the suit schedule property. Hence, the plaintiff has filed this suit for necessary relief sought in the plaint. In support of his oral evidence plaintiff has filed documents, which have been marked at Ex.P.1 to P.19.
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O.S. No.26882/2012
10. Ex.P.1 is the RTC dated 7.2.2011, to the extent of land 18 guntas including kharab, which stands in the name of plaintiff, as reflects in column No.9 of Ex.P.1 in respect of suit schedule property. Ex.P.2 to 4 are the complaint lodged by the plaintiff against the defendant. Ex.P.5 to P.7 are the postal receipts for having sent complaint to the concerned police authority. Ex.P.8 is the registered compromise decree compromised in FDP No.37/2001, which has been filed by the father of the plaintiff in view of the preliminary decree passed in O.S. No.1819/1994 including sketch.
Ex.P.9 is the original registered partition deed dated 10.11.2008 with registered sketch, which is part of registered partition deed dated 10.11.2008. Ex.P.10 is the RTC in respect of Sy.No.9/2 measuring 4 acres 35 guntas and 5 gunta kharab, which stands in the name of Puttamma, W/o.Narasimhaiah and Arasappa, S/o.Late.Narasimhaiah. Ex.P.11 is the MR No.11/200405, in respect of Sy.No.9/2 (New No.9/8) and Ex.P.12 is the MR No.11/200405 which 14 O.S. No.26882/2012 has been entered in the revenue records on basis of compromise decree passed in FDP No.37/2001 and Ex.P.13 is the certified copy of the registered sale deed dated 26.12.2002, executed by one M.Munirajareddy in favour of defendant in respect of site No.6A, khatha No.9/1 of Roopena Agrahara Village, Bangaluru. And Ex.P.14 is the order sheet in O.S. No.25186/2011, filed by the defendant against the plaintiff, which was dismissed for default and Ex.P.15 is the certified copy of the plaint in O.S. No.25186/2011 and Ex.P.16 is the certified copy of the written statement, filed by the plaintiff herein in the said suit. Ex.P.17 is the photos (9) of suit schedule property and Ex.P.18 is the CD and Ex.P.19 is the hand sketch prepared by the plaintiff in respect of suit schedule property.
11. Now it is relevant to appreciate Ex.P.8 Compromise Decree passed in FDP No.37/2001, which has been registered subsequently. On careful perusal of Ex.P.8, it is clearly shows that the father of the plaintiff Sri.Arasappa has filed suit for 15 O.S. No.26882/2012 partition in O.S. No.1819/1994, against legal heirs of his brother deceased Krishnappa for partition of their family properties left by their ancestor. Said suit was decreed on 27.10.2000 and allotted the share of the plaintiff's father in the properties.
12. After preliminary decree passed in O.S. No.1819/1994, the father of the plaintiff has filed FDP No.37/2001. During the pendency of the FDP proceedings the parties have entered into compromise and compromise petition has been filed and in terms of compromise petition final decree has been drawn and same was registered before the competent authority. As per final decree, the father of the plaintiff got share in four properties. In Sy.No.9/2 (New No.9/8) measuring 2 acre 17.5 guntas (out of 4 acre 3 guntas in Sy.No.9/2) has fallen to the share of plaintiff's father. The plaintiff's father got share in other properties as per compromise decree including suit property. 16
O.S. No.26882/2012
13. Now it is relevant to appreciate Ex.P.9 Registered Partition Deed, dated 10.11.2008. I have perused Ex.P.9, it is clear that, said Arasappa (father of the plaintiff) had three daughters and one son, by name Lalithamma, A.Goppamma, Narendra Babu.A. (the plaintiff) and Kumari A.Veda. There was partition between the plaintiff and his sisters and his parents. Said partition has reduced into writing and same was registered before the competent authority, which is Ex.P.9.
14. As per partition among the plaintiff and his family members Ex.P.9, the present plaintiff is party No.4, allotted with share in the properties of his father. The share of plaintiff shown in registered partition deed Ex.P.9 is as follows: "1. The First Party is allotted to his share in the Schedule 'A' Property whereby the Second, Third, Fourth and Fifth Parties release their respective right title and 17 O.S. No.26882/2012 interest held in the schedule 'A' Property.
2. The Second Party is allotted to his share the Schedule 'B' Property whereby the First, Third, Fourth and Fifth Parties release their respective right title and interest held in the Schedule 'B' Property.
3. The Third Party is allotted to his share the Schedule 'C' Property whereby the First, Second, Fourth and Fifth Parties release their respective right title and interest held in the schedule 'C' Property.
4. The Fourth Party is allotted to his share the Schedule 'D' Property whereby the First, Second, Third and Fifth Parties release their respective right title and interest held in the schedule 'D' Property.
5. The Fifth Party is allotted to his share the Schedule 'E' Property whereby the First, Second, Third and Fourth Parties release their 18 O.S. No.26882/2012 respective right title and interest held in the schedule 'E' Property."
In the registered partition deed the share of the 4 th party; i.e., present plaintiff's share is shown as 'D' schedule property, which reads thus:
"SCHEDULE 'D' PROPERTY ALLOTTED TO THE SHARE OF THE FOURTH PARTY Sri.Narendra Babu.A Item No.1:
All that piece and parcel of the land bearing Sy.No.9/2 measuring an extent of 023 Guntas including ½ Guntas of karab land out of 1 Acres 27 ½ Guntas situated at Roopena Agrahara Village, Begur Hobli, Bangaluru South Taluk, and bounded on:
East by: 30 feet Road (formed in
the land bearing Sy.
No.9/2 as per the
compromise decree
passed in FDP
No.37/2001)
West by: Sri.Narayan Reddy and
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O.S. No.26882/2012
Smt.Sharadamma's
land
North by: Layout formed by /
Sri.Basappa and
Sri.Narayana Reddy
South by: 30 feet Road and Land
belonging to
Sri.K.C.Krishna Reddy.
Item No.2:
All that piece and parcel of the land bearing Sy.No.9/2 measuring an extent of 018 ½ Guntas including ½ Guntas of karab land out of 1 Acres 27 ½ Guntas situated at Roopena Agrahara Village, Begur Hobli, Bangaluru South Taluk, and bounded on:
East by: 30 feet Road (formed in
the land bearing Sy.
No.9/2 as per the
compromise decree
passed in FDP
No.37/2001)
West by: Land belonging to
Sri.K.C.Krishna Reddy,
Sri.Narayan Reddy and
Smt.Sharadamma
North by: Remaining portion of
same Sy.No.9/2 belongs
to Smt.Lalithamma
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O.S. No.26882/2012
South by: Remaining portion of
same Sy.No.9/2 belongs
to Smt.A.Gopamma &
Kum.A.Veda.
Item No.3:
All that piece and parcel of the land bearing Sy.No.9/2 measuring an extent of 018 ¼ Guntas including ½ Guntas of karab land out of 1 Acres 27 ½ Guntas situated at Roopena Agrahara Village, Begur Hobli, Bangaluru South Taluk, and bounded on:
East by: 30 feet Road (formed in
the land bearing Sy.
No.9/2 as per the
compromise decree
passed in FDP
No.37/2001)
West by: Land belonging to
Sri.Narayan Reddy and
Smt.Sharadamma
North by: Remaining portion of
same Sy.No.9/2 belongs
to Smt.A.Gopamma &
Kumari.A.Veda
South by: 30 feet Road and free
sites formed by the
Government.
Item No.4:
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O.S. No.26882/2012
All that piece and parcel of the land bearing Sy.No.44/4A measuring an extent of 011 ½ Guntas of land out of 23 Guntas, situated at Bommanahalli Village, Begur Hobli, Bangaluru South Taluk, and bounded on:
East by: Layout formed by
Thimmaiah Reddy and
Venkatappa Reddy
West by: 30 feet Road
(Previously Cart Road
or Bandi Jaddu)
North by: 60 feet B.D.A. Road
South by: Remaining portion of
same Sy.No.44/4A
belongs to
Smt.Chinnamma.
Item No.5:
All that piece and parcel of the
Portion of Katha No.6, measuring
East to West 57.3 feet and North to
South 19.6, Situated at Roopena
Agrahara Village (Gramatana),
Begur Hobli, Bangaluru South
Taluk, previously coming under
Bommanahalli C.M.C Limits
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O.S. No.26882/2012
presently comes under BBMP limits and bounded on:
East by: Road,
West by: Property of
Sharadamma
North by: Late Nanjappa's House
South by: Property belongs to
Smt.Chinnamma and
sons.
Thus, the plaintiff is the absolute owner and in possession of the properties inherited by him from his ancestors including suit schedule property.
15. On basis of Ex.P.8 Registered Compromised Decree and Ex.P.9 Registered Partition Deed dated 10.11.2008, the revenue records have been changed in the name of the plaintiff, which have been marked at Ex.P.1 the right of records of Sy.No.9/8 (Old Sy.No.9/2) and Ex.P.10 the right of records, which reflects New Sy.No.9/2 with measurement 4 acres 35 gunta and reflects MR No.11/2004 and 2005 as per the court order and same is reflects in mutation entry at Ex.P.11 and 12. Ex.P.2, P.3, P.4 and Ex.P.5 to P.7 are the 23 O.S. No.26882/2012 complaints and postal receipts, lodged by the plaintiff against the defendant before the jurisdictional police in respect of encroachment over the suit schedule property. Ex.P.1, P.2 and P.10 to 12 are the revenue records, which have got presumptive value u/S 35 of the Indian Evidence Act and Ex.P.8 and P.9 are the registered final decree and registered partition deed dated 10.11.2008 respectively. The registered title deeds have got presumptive value u/S 17 of the Registration Act. These documents produced by the plaintiff are remained unchallenged. On careful appreciation of oral and documentary evidence, it can be safely held that the plaintiff is absolute owner of the suit schedule property by inheritance. On careful appreciation of oral and documentary evidence it is clear that, the plaintiff has proved his title over the suit schedule property by producing cogent and unchallenged documentary evidence. Thus, the plaintiff has established his title over the suit schedule property and 24 O.S. No.26882/2012 he is entitled for declaratory relief of ownership. Hence, I answer this point in the Affirmative.
16. POINT No.2: In order to prove encroachment over the suit schedule property the plaintiff has produced certified copy of the registered sale deed of the defendant's property, adjacent to the suit schedule property, which is marked at Ex.P.13. Ex.P.14 is the certified copy of the order sheet in O.S. No.25186/2011 and Ex.P.15 is the certified copy of plaint in O.S. No.25186/2011, filed by the defendant herein against the present plaintiff herein, in respect of property belongs to the defendant shown in Ex.P.13 and produced 9 photos of building constructed by the defendant, which are marked at Ex.P.17 jointly and CD is marked at Ex.P.18. The plaintiff further produced hand sketch, which is marked at Ex.P.19.
17. Now it is relevant to appreciate Ex.P.13, the certified copy of the registered sale deed dated 26.12.2002 of defendant's property. The defendant has purchased his 25 O.S. No.26882/2012 property through registered sale deed dated 26.12.2002.
Measurements shown in the sale deed at schedule is East to West: 12 feets, North to South: 30 feet. The defendant's property is situated towards Western side of the suit property.
I have also perused Ex.P.15, certified copy of the plaint in O.S. No.25186/2011, in the said suit the defendant has shown his property No.6A, Khatha No.9/1, situated at Roopena Agrahara, Begur Hobli, Bengaluru South Taluk, measuring East to West: 12 feet and North to South: 30 feet.
I have perused photos produced by the plaintiff marked at Ex.P.17, which are reflects the building constructed by the defendant. Ex.P.19 is hand sketch showing the plaintiff's property and extent of encroachment made by the defendant. After closing the evidence of plaintiff, the plaintiff has got appointed Court Commissioner for measurement of the building constructed in the property bearing 6A, Khatha No.9/1 by encroaching upon the suit property and to draw sketch furnish the boundaries and measurement of the 26 O.S. No.26882/2012 building East to West and North to South and produce photograph of the building. After completion of commissioner work the Court Commissioner has produced his report with spot mahazar, rough sketch, sketch prepared by the Court Commissioner and photos with CD.
18. I have perused Court Commissioner Report stating that, he has done commissioner work at the spot, after giving notice to the counsel for plaintiff, in the presence of the plaintiff. The Court Commissioner has stated in his report that the plaintiff has identified suit property. The Court Commissioner also stated in report the measurement of the defendant's property. The Court Commissioner has shown the measurement as East to West: 27 feet and North to South: 15 feet and neat sketch prepared with rough sketch, spot mahazar. With this, the Commissioner has filed his report.
19. On appreciation of Commissioner report, rough and neat sketch, it is clearly shows that as per sale deed 27 O.S. No.26882/2012 Ex.P.13 the measurement of defendant's property is East to West: 12 feet and North to South: 30 feet. But, defendant has constructed building East to West: 30 feet and North to South: 12 feet instead of constructing building East to West:
12 feet and North to South: 30 feet by encroaching over the suit property, because suit property was vacant land before encroachment.
20. I have perused spot sketch prepared by Court Commissioner. The Court Commissioner shown encroached area with pencil mark with measurement showing that constructed area East to West: 27 feet and North to South: 15 feet. But, as per sale deed Ex.P.13 the defendant's property is only East to West: 12 feet and North to South: 30 feet.
On careful perusal of the documentary evidence led by the plaintiff, it is clearly established that the defendant has encroached over the suit schedule property and constructed over the suit schedule property, which is liable to be removed.
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O.S. No.26882/2012
21. Ofcourse, the plaintiff did not choose to examine the Court Commissioner and got mark Commissioner Report, Mahazar and Spot Sketch and other documentary evidence such as photos and CD produced by the Court Commissioner along with his Commissioner Report. But, still the Court Commissioner report has got evidentiary value under the law. Thus, on perusal of the oral and documentary evidence, which are remained unchallenged, the plaintiff has established the fact of encroachment over the suit property by the defendant, which is liable to be removed.
22. This court has issued summons through RPAD, same was returned with a endorsement "not claimed". So, it deemed that the summons was duly served on the defendant. But, defendant did not choose to appear before the court and did not contested the matter. Thus, the oral and documentary evidence led by the plaintiff remained unchallenged. Now it is relevant to note here the law laid down by the Hon'ble Supreme Court passed in the decision 29 O.S. No.26882/2012 reported in AIR 1999 SC 1441 in case of Vidhyadhar v/s Manikrao and another. The lordships have held thus:
"16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the privy council beginning from the decision in Sardar Gurubaksha Singh v/s Gurdial Singh and another.. This was followed by the Lahore High Court in Kirpa Singh v/s Ajaipal Singh and others. AIR (1930) Lahore I and the Bombay High Court in Martand Pandalinath Choudhary v/s Radhabai Krishna Rao Deshmukh AIR 1931 BOMBAY
97. The Madhyapradesh High Court in Gulla Kharagjit Carpenter v/s Narsingh Nandkishore Rawat 30 O.S. No.26882/2012 also followed the privy council decision in Sardar Gurubaksha Singh's case (supra). The Allahabad High Court in Arjun Singh v/s Virendranath and another. Held that if a party abstains from entering the witness box, it would give rise an inference adverse against him. Similarly a division bench of the Punjab and Haryana High Court in Bhagwan Das v/s Bhishan Chand and others, drew a presumption u/S 114 of the Evidence Act against a party who did not enter into the witness box."
With the above observation and ruling on the decision referred supra, I hold that the defendant has encroached over the suit property and constructed building over the suit schedule property without having any right, interest, title over the suit schedule property. Hence, I answer this point in the Affirmative.
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O.S. No.26882/2012
23. POINT No.3: As this court has already appreciated the oral and documentary evidence led by the plaintiff and hold that, the plaintiff has established his title over the suit property by producing documentary evidence, such as, Registered Final Decree Ex.P.8, and Registered Partition Deed dated 10.11.2008, marked at Ex.P.9. These registered documents and Ex.P.8 is the final decree passed in FDP No.37/2001, are clearly establishes that the plaintiff has inherited the suit property from his ancestors and Ex.P.1, P.10 to 12 are the revenue records, which are came into existence on basis of registered title deeds referred supra. The revenue records stands in the name of plaintiff, which have got presumptive value u/S 35 of the Indian Evidence Act. Sec.35 of the Indian Evidence Act, which reads thus:
"35. Relevancy of entry in public [record or an electronic record] made in performance of duty.__ An entry in any public or other official book, register or [record or an 32 O.S. No.26882/2012 electronic record], stating a fact in issue or relevant fact, and made by public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.
Editor's Note._The words "Fact", "Facts in issue" and 'Relevant" are defined in Section 3 of this Act."
24. In support of my opinion I relied on the decision reported in ILR 2004 KAR.1074 in case of Naganna Vs. Shivanna. The lordships have held at Head NoteB, thus:
"REBUTTAL EVIDENCE - entries in the ROR carries presumptive value in law - if there is no convincing evidence to rebutt the legal presumption, lessor relief of injunction can be granted. But the 33 O.S. No.26882/2012 declaration title cannot be granted."
25. Further relied on decision reported in AIR 2008 SC 901 in case of Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and Others. The lordships have held at Head NoteB, reads thus:
"Evidence Act, (1 of 1872), Ss.
35, 114 revenue records not document of title it merely raises presumption of possession."
The lordships have discussed at Para12 of the judgment, which reads thus:
"A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the the Indian Evidence Act.
The Courts below, were, therefore, 34 O.S. No.26882/2012 required to appreciate the evidence keeping in view the correct legal principles in mind."
Thus, the plaintiff has established his title and encroachment over the suit property. Further, the photo produced by the plaintiff and Court Commissioner report with sketch, photos are clearly establishes that, the defendant has constructed building over the suit property without having right, interest over the suit property. Thus, the defendant has encroached over the suit property and constructed building over the suit schedule property.
26. So, far as the relief of mandatory injunction is concerned, to grant mandatory injunction two conditions must be taken into consideration. One is prevention of breach of obligation and second one is relief must be enforceable by court. So far as first condition is concerned there must be an obligation on part of defendant. That obligation must be legal obligation not moral obligation. 35
O.S. No.26882/2012 Section 2 (a) of the Specific Relief Act defines the obligation that obligation includes every duty enforceable by law. Thus, the obligation does not confine merely to a contractual one. Hence, it can be said that mandatory injunction can be granted not only in cases of specific performance of contract, but also breach of every obligation and duty, which is enforceable by law.
27. In the case on hand, the plaintiff has proved his title over the suit schedule property by producing registered title deeds and the plaintiff also proved the encroachment of the defendant over the suit schedule property. Under such circumstances, there is no question of exercising discretionary power of the court as to whether mandatory injunction should be granted or award of damages alone would be sufficient. In such case, the mandatory injunction must be granted irrespective of any question of hardship to the defendant. In support of my opinion, I relied on the decision reported in (1983) ILR BOM 771 in case of Govid Venkaji 36 O.S. No.26882/2012 Kulkarni v/s Sadashiva Dharm Bhat. In the case of trespass or encroachment, when plaintiff sues for possession of his land the Hon'ble Apex Court viewed thus:
"It is a continuing trespass and the grant of damages in such a case instead of mandatory injunction will amount to legalising wrongful acts and no tortfeasor or wrong doer is entitled to ask a court to sanction his wrong. It is nothing but to reward the wrong doer with the very property in respect of which he committed the wrong, through the judicial process."
28. When a case as to discretion of court in awarding damages in view of mandatory injunction came up before the Hon'ble High Court of Andhra Pradesh in case of N.C.Subbaiah v/s Pattan Abdul Khan (1956) 69 LW (Andhra) 52. The lordships have held that, "No man should be compelled to sell his property against his will at a 37 O.S. No.26882/2012 valuation and no person should be encouraged to do a wrongful act or commit a trespass relying on the length of his force and his ability to pay damages for it."
Therefore, whenever the plaintiff comes to the court and prays for possession of his property in the occupation of trespasser or a encroachment made by the third person, with a incidental relief of mandatory injunction directing the trespasser to demolish the construction put up by him and once the plaintiff has established his right to a decree for possession, there is no question of exercising discretion to the court as to whether the mandatory injunction should be granted or award of damages alone would be sufficient. In such case, decree must follow irrespective of any question of hardship to the defendant.
29. In the case on hand the plaintiff has proved his title over the suit schedule property by producing original title deeds and revenue entries, which are clearly shows the 38 O.S. No.26882/2012 possession of the suit property of the plaintiff prior to encroachment. Further it is clear from certified copy of the registered sale deed of the defendant that he has constructed the building excessing the measurement of his property as it could be seen from the sale deed of the defendant, which is marked at Ex.P.13 with help of Commissioner Report. With this observation and relying on the documentary evidence produced by the plaintiff, I am of the opinion that the plaintiff is entitled for possession of the suit schedule property. Thus, the plaintiff is entitled for the relief of mandatory injunction. With this observations and reasons assigned, I answer this point in the Affirmative.
30. POINT No.4: The plaintiff has produced registered compromised final decree, passed in FDP No.37/2001 and registered partition deed dated 10.11.2008, which are unchallenged registered title deeds and got presumptive value u/S 17 of the Registration Act, on basis of which the revenue entries have been made in respect of suit schedule 39 O.S. No.26882/2012 property, which are stands in the name of plaintiff. When plaintiff has proved his title over the suit property and there is no cloud on the rights of plaintiff over the suit property, under such circumstances, the plaintiff is entitled for the relief of permanent injunction against the defendant. In support of my opinion I relied on the decision reported in AIR 2008 SC 2033 in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
The lordships have held in the decision thus:
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the 40 O.S. No.26882/2012 defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to 41 O.S. No.26882/2012 sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
Where Plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant a suit for an injunction simpliciter will lie."
31. In the said decision the lordships have held that if the plaintiff proves his title over the suit property and there was a threat of possession, when there is no cloud over the title, then the plaintiff is entitled for the relief of permanent injunction. With the above observation, reasons assigned and relying on the decision referred supra, I answer this point in the Affirmative.
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32. POINT No.5: The plaintiff has produced Ex.P.8 Original Registered Final Decree in FDP No.37/2001 (Preliminary Decree passed in O.S. No.1819/1994). This document clearly shows that the father of the plaintiff has filed a suit for partition against the legal heirs of his brother Krishnappa and got suit property in partition along with other properties as his share and same is came to be entered in the revenue records as it could be seen from the Ex.P.10, 11 & 12 Record of Rights and Mutation Entries respectively.
33. Ex.P.13 is the certified copy of registered sale deed of property belongs to defendant, which clearly reflects the measurement of defendant's property as East to West: 12 feet, North to South: 30 feet with detail boundaries. It is also reflects the details of the defendant's property in Ex.P.15, Certified Copy of the Plaint, filed by the present defendant against the present plaintiff, in respect of the suit schedule property. In Ex.P.15 the defendant clearly stated about measurement and description of his property as stated in 43 O.S. No.26882/2012 Ex.P.13 Sale Deed. Ex.P.17 are the photos of the building constructed by the defendant by encroaching over the suit schedule property. Ex.P.18 is the CD along with receipt and Ex.P.19 is the hand sketch showing the encroached area over the suit schedule property.
34. The plaintiff got appointed Court Commissioner to measure the property belongs to defendant and construction over the encroached area and Court Commissioner has submitted his report with spot mahazar and with sketch and photos with CD. On perusal of the entire oral and documentary evidence led by the plaintiff, I am of the opinion that plaintiff is entitled for the reliefs sought in the plaint. Hence, I answer this point in the Affirmative.
35. POINT No.6: In view of the findings on points No.1 to 5, I proceed to pass the following: ORDER The suit filed by the plaintiff is hereby decreed.
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O.S. No.26882/2012 Consequently, it is hereby declared that the plaintiff is the absolute owner of the suit schedule property.
It is further ordered and directed the defendant, by way of mandatory injunction, that the defendant shall remove the construction put up by him over the suit schedule property and handed over the vacant possession of the suit schedule property to the plaintiff within 45 days (Forty Five days) from the date of decree. In case if the defendant is failed to handed over the vacant possession of the suit property to the plaintiff within 45 days in such event the plaintiff is entitled to take possession of the suit property in accordance with law.
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O.S. No.26882/2012 It is further ordered that the defendant is hereby, by way of permanent injunction, restrained from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 9th day of December, 2020).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bangaluru. (CCH74) SUIT SCHEDULE PROPERTY All that piece and parcel of the portion of the property bearing Sy.No.9/8, situated at Roopena Agrahara, Begur Hobli, Bangaluru South Taluk, measuring to an extent of East to West 18 feet and North to South 15 feet and bounded on the:
East by: Remaining portion of Sy.No.9/8;46
O.S. No.26882/2012 West by: Sy.No.9/1;
North by: Remaining portion of Sy.No.9/8; and on South by: Remaining portion of Sy.No.9/8.
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bangaluru. (CCH74) ANNEXURE List of witness examined for the plaintiff's side:
P.W.1 : Sri.Narendra Babu.A. List of documents exhibited for the plaintiff's side:
Ex.P.1 : RTC Extract Ex.P.2 : Copy of Police complaint lodged before Inspector of Police, Madiwala P.S. Ex.P.3 : Copy of complaint given to Deputy Commissioner of Police Ex.P.4 : Copy of complaint given to Commissioner of Police Ex.P.5 to 7 : 3 Postal receipts Ex.P.8 : Registered Final Decree proceedings with sketch Ex.P.9 : Registered partition deed Ex.P.10: RTC Extract Ex.P.11 & 12 : 2 Mutations Ex.P.13: C/C of the sale deed dated 26.12.2002 47 O.S. No.26882/2012 Ex.P.14: C/C of the entire order sheet in O.S. No.25186/2011 Ex.P.15: C/C of the plaint in O.S.No. 25186/2011 Ex.P.16: C/C of the written statement in O.S. No25186/2011 Ex.P.17: 9 Photographs(together marked) Ex.P.18: CD with receipts Ex.P.19: Hand sketch prepared by the plaintiff in respect of suit property List of witness examined for the defendant's side:
Nil List of document exhibited for the defendant's side:
Nil (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bangaluru. (CCH74) 48 O.S. No.26882/2012