Bangalore District Court
In Smt.Rashid Begum vs In 1. Smt.K.Vijaya Lakshmi on 14 March, 2023
KABC010050062019
(IN O.S.No.1247/2019)
KABC010197102021
(IN O.S.No.26448/2020)
Govt. of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
DATED THIS THE 14TH DAY OF MARCH 2023
PRESENT:
SRI. D.P. Kumara Swamy, B.Com., LL.M.,
VI Addl. City Civil & Sessions Judge
C/c of XLI Addl. City Civil & Sessions Judge
Bengaluru.
O.S.No.1247/2019 C/W O.S.26448/2020
PLAINTIFF IN Smt.Rashid Begum,
O.S.No.1247/2019 Wife of Sri.Pyarrejan.J.
Aged about 50 years,
Residing at 1674, Arokyamma Layout,
K.G.Halli, Venkateshpura,
Bengaluru-560045.
[By Pleader Ms.Sunitha H.Singh]
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PLAINTIFF IN Smt.K.R.Shashi,
O.S.No.26448/2020 W/o.Sri.Madhusudhan,
Aged about 47 years,
R/o.# 55, 3rd Cross,
Cauvery Layout,
Tavarekere Main Road, DRC Post,
Bengaluru-560029.
[By Pleader Sri B.A. Veerendra Kumar]
/Vs/
DEFENDANTS IN 1. Smt.K.Vijaya Lakshmi,
O.S.No.1247/2019 Wife of Sr.N.Ramareddy,
Aged about 67 years,
Residing at No.18, 11th Main Road,
Lakkasandra Layout,
Bangalore-560 030.
2. Mrs.K.R.Shashi.
Wife of Mr.Madhusudhan,
Aged about 49 years,
Residing at No.152, 55,
Kavery Layout,
Tavakere Main Road,
Jayanagar, Bangalore-560 029.
[D1 & D2 - By Pleader Sri / Smt.
G.S.R.]
DEFENDANT IN Smt.Rashid Begum,
O.S.No.26448/2020 W/o.Sri.Pyarejan.J.
Aged about 50 years,
R/o.No.1674, Arokyamma Layout,
K.G.Halli, Venkateshapuru,
Bengaluru-560045.
[By Pleader Sri/Smt. A.A.]
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IN O.S.No.1247/2019
Date of Institution of the suit : 15.02.2019
Nature of the Suit : Injunction Suit
Date of commencement of recording
of evidence : 01.09.2022
Date on which the Judgment was
pronounced : 13.03.2023
Year/s Month/s Day/s
Total Duration : 04 00 29
IN O.S.No.26448/2020
Date of Institution of the suit : 15.12.2020
Nature of the Suit : Injunction Suit
Date of commencement of recording
of evidence : 01.09.2022
Date on which the Judgment was
pronounced : 13.03.2023
Year/s Month/s Day/s
Total Duration : 02 02 29
(D.P. KUMARA SWAMY)
VI ADDL. CITY CIVIL & SESSIONS JUDGE
C/c of XLI ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
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COMMON JUDGMENT
Smt.Rashid Begum has filed a bare injunction suit in
O.S.No.1247/2019 (For short, "the suit-1") for the relief of
perpetual prohibitory injunction.
2. Smt.K.R.Shashi has filed a bare injunction suit in
O.S.No.26448/2020 (For short, "the suit-2") for the relief of
perpetual prohibitory injunction.
3. Vide Order dated 11.02.2021 in MFA.No.779/2021,
the Hon'ble High Court of Karnataka has directed this Court to
dispose off the suit in O.S.No.1247/2019 as expeditiously as
possible and with outer time limit of 6 months.
4. Vide order dated 01.10.2021 in O.S.No.1247/2019,
this Court has clubbed the suit-2 with the suit-1. The suit-1 is
the leading case.
PLEADINGS IN THE SUIT -1
5. The pleaded case of the plaintiff in the suit-1 may
be stated to the following effect:-
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5.1. One Smt.Rasheed Begum (hereinafter referred to
as "the plaintiff in the suit-1") has filed the suit-1 against
one Smt.K.Vijayalakshmi (hereinafter referred to as "the
defendant No.1 in the suit-1") for bare injunction in
respect of site No.10 measuring 30 feet from East to West
and 20 feet from North to South (carved out in Sy.No.100/1 of
Hennur Village) bearing Municipal Khatha
No.386/376/100/1/10 situated in Hennur village, Kasaba Hobli,
Bengaluru North Taluk, present BBMP ward No.24 (old BBMP
Ward No.30), Bengaluru-560043, which is fully described in
the schedule of the plaint in this suit and one Smt.K.R. Shashi
are the defendant No.1 and 2 in the suit-1 (for short, "the
suit property in the suit-1")
5.2. One Sri.Syed Moinuddin had acquired the suit
property in the suit-1 under a registered gift deed document
No.KCH-1-00362-2016-17 in CD KCHD 205, Book-I of the
Sub-Registrar of Gandhinagar (Kacharakanahalli) Bengaluru,
dated 04.05.2016. Khata Certificate, Khata Extract and
encumbrance certificate stood entered in the name of said
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Sri.Syed Moinuddin. Based on the said gift deed said
Sri.Syed Moinuddin was paying property tax in respect of
the site No.1247/2019. Said Sri.Syed Moinuddin had
obtained sanctioned plan vide reference No.LP/13/2017-18
dated 02.06.2017 which was valid till 01.06.2019.
5.3. The plaintiff in the suit-1 has purchased the suit
property in the suit-1 under a registered sale deed bearing
document No.KCH-1-01052-2018-19 stord in CD KCHD 237
Book-I of the Office of the Registrar Gandhinagar,
Kacharakanahalli, Bengaluru dated 07.06.2018 from
Sri.Syed Moinuddin.
5.4 Accordingly, the above said documents namely
encumbrance certificate, Khata transfer endorsement,
khata certificate, khata extract and tax paid receipts have
been entered in the name of the plaintiff in respect of the
suit property in the suit-1.
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5.5. The plaintiff in the suit-1 has undertaken the
construction work in the suit property in the suit-1 and she
dug Borewell in the suit property in the suit-1. At the time of
construction of the pillars in the suit property in the suit-1,
the defendant No.1 in the suit-1 started to interfere and
tried to prevent the plaintiff in the suit-1 from putting up
construction of a house on the suit property in the suit-1.
5.6. The defendant No.1 in the suit-1 has no manner
of right title or interest over the suit property in the suit-1.
5.7. At the time of said interference when the plaintiff
in the suit-1 questioned the defendant No.1 in the suit-1,
the defendant No.1 in the suit-1 along with her anti social
elements, answered rudely and threatened the plaintiff in
the suit-1. The defendant in the suit-1 claimed to be the
owner of the adjoining sites which is part and parcel of
Sy.No.100/2 & 3 on the southern side of the suit property in
the suit-1.
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5.8. On 07.09.2018, the defendant No.1 in the suit-1
interfered with the plaintiff in the suit-1 while drilling the
borewell in the suit property in the suit-1. On 07.02.2019,
the defendant No.1 in the suit-1 along with her goonda
elements forcibly attempted to enter into the suit property
in the suit-1 and tried to stop the construction work
undertaken by the plaintiff in the suit-1. With the help of
relatives and local people, the plaintiff in the suit-1 stopped
the defendant No.1 in the suit-1 and her people from
interfering with the plaintiff's possession over the suit
property in the suit-1.
5.9. The plaintiff in the suit-1 is in lawful possession
in suit property in the suit-1.
5.10. The plaintiff in the suit-1 has approached
the jurisdictional police against the defendant No.1 in the
suit-1. The said police directed the plaintiff in the suit-1 to
approach a competent Civil Court..
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5.11. The above are the facts constituting cause
of action for the suit. Hence, the suit in O.S.1247/2019 for
the relief of permanent injunction restraining the
defendants No.1 in the suit-1, her men, agents,
representatives, henchmen claiming through or under them
from interfering with the peaceful possession and
enjoyment of the suit property in the suit-1 in the hands of
the plaintiff in the suit-1; and to grant such other and
further relief in the fitness and facts and circumstances of
the case on hand.
6. After service of summons, the defendant No.1 in
the suit-1 has appeared through her Advocate and filed her
written statement. The pleadings in the said written
statement may be stated to the following effect.
6.1 The defendant No.1 in the suit-1 has denied the
fact alleged in the plaint in O.S.No.1247/2019 to the effect
that the plaintiff in the suit-1 is the owner in possession of
the suit property in the suit-1. At the same time the
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defendant No.1 in the suit-1 has expressed her ignorance
regarding the said sale deed dated 07.06.2018.
6.2 The defendant No.1 in the suit-1 has also
expressed her ignorance about the said gift deed dated
04.05.2016.
6.3. The defendant No.1 in the suit-1 has expressed
her ignorance about the said sanction plan dated
02.06.2017 and denied the said sanction plan and further
stated that the said sanction plan is concocted, fabricated
and created for the purpose of suit in O.S.No.1247/2019.
Defendant No.1 in the suit-1 has pleaded ignorance about
the khata certificate, etc., in respect of the suit property in
the suit-1 in the name of Sri.Syed Moinuddin and also in the
name of plaintiff in the suit-1. The defendant No.1 in the
suit-1 has also denied fact that plaintiff in the suit-1 got dug
a borewell in the suit property in the suit-1 and that she has
put up pillars on the suit property in the suit-1 for the
purpose of construction of a residential house. The
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defendant No.1 in the suit-1 has denied the rest of the facts
of the case of the plaintiff in the suit-1 allegedly constituting
cause of action for the suit in O.S.No.1247/2019. There is
no cause of action for the suit in O.S.No.1247/2019.
6.4 The defendant No.1 in the suit-1 was the owner of the
composite property bearing site Nos. 11, 12, 13 and 14
V.P.Khata No.100, Assessment No.100/2, 3, 4 and 6, BMP
No.264-100-100/2, 3, 4, 6, 11, 12, 13 and 14, and 14/1,
BBMP Ward No.24 situated in Hennur Village, Kasaba Hobli,
Bengaluru North Taluk, Bengaluru city, totally measuring
6605.25 sq feet (for short, "the suit properties in the
suit-2") The defendant No.1 in the suit-1 had purchased
the suit properties in the suit-2 under a registered sale deed
dated 25.11.2002 from one Sri.H.P.Rajamani, S/o.Puttaiah.
The said Sri.H.P.Rajamani had acquired the lands in Survey
numbers 100, 100/3, 100/4 and 100/6 through a registered
Will dated 23.10.1979. The revenue records of the said
lands were standing in the name of Sri.H.P.Rajamani. Said
H.P.Rajamani had formed a residential layout in the said
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lands. The said H.P.Rajamani had sold the suit properties in
the suit-2 in favour of the defendant No.1 in the suit-1.
6.5. Thereafter, the defendant No.1 in the suit-1 has
got transferred all the revenue records in respect of the suit
properties in the suit-2 in her own name. She was paying
property tax in respect of the suit properties in the suit-2 to
the concerned office. The defendant No.1 in the suit-1 has
executed a registered Gift Deed in favour of of her
daughter Smt.K.R.Shashi (who got herself impleaded
subsequently as defendant No.2 in the suit in
O.S.1247/2019 (who would be referred to as "the plaintiff
in the suit-2" in this Judgment for the sake of brevity) on
24.06.2015 in respect of 2000 sq feet of open plot out of the
suit properties in the suit-2 (measuring 6000 sq. feet).
Accordingly, the BBMP authorities have bifurcated the khata
in respect of said 2000 sq. feet open plot and remaining
4000.25 sq. feet open plot. Thus, the plaintiff in the suit-2
has become absolute owner of said 2000 sq feet of open
plot. Said 2000 sq feet open plot is separately numbered as
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Municipal No.264/100, 100/2, 3, 4, 6/11, 12, 13 and 14/1.
Subsequently the defendant No.1 in the suit-1 has executed
another Gift deed dated 13.07.2020 transferring the
remaining 4000.25 sq feet of open plot in favour of the
plaintiff in the suit-2. Thus, the plaintiff in the suit-2 has
become absolute owner of the entire composite property
bearing site numbers 11, 12, 13, 14 and 14/1 (i.e., the suit
properties in the suit-2. Thus, the defendant No.1 in the
suit-1 is no more interested in any portion of the suit
properties in the suit-2.
6.6 As per the case of the plaintiff in the suit-1
herself, the suit property in the suit-1 is situated in
Sy.No.100/1. The suit property in the suit-1 is quite different
from the suit properties in the suit-2. The the suit properties
in the suit-2 are situated in Sy.No.100/2, 100/3, 100/4 and
100/6.
6.7 The extent of entire land in Sy.No.100/1 is 28
guntas. Out of the said land, 20 guntas of land is acquired
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by the BDA for formation of lay out and the road. Hence, all
that remained with the owner of the said 28 guntas of land
is only 8 guntas of land in said Sy.No.100/1. It is practically
impossible to form a layout in 8 guntas of land. Hence it can
be easily assumed that the suit property in the suit-1 is not
at all existence.
6.8 Having lost of her site somewhere else, the
plaintiff is trying to acquire the property which belongs to
the plaintiff in the suit-1.
6.9 The khata certificate, Khata extract, tax paid
receipts and sanction plan are all concocted, fabricated and
created documents for the purpose of the suit in
O.S.No.1247/2019. The defendant No.1 in the suit-1 has
nothing to do with the the suit property in the suit-1 . The
defendant No.1 in the suit-1 never interfered with the suit
property in the suit-1. The suit property in the suit-1 and
the suit properties in the suit-2 are altogether different.
Probably, the plaintiff has purchased a non existent site.
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Having come to know about the said fact, the plaintiff has
filed the suit-1 against the defendant No.1. The suit is not
maintainable for the reasons mentioned supra. The
daughter of the defendant No.1 in the suit-1 is a necessary
party to this suit. This suit is bad for non-joinder of
daughter of the defendant No.1 in the suit-1 ( i.e., the
plaintiff in the suit-2, who got impleaded herself as the
defendant No2 in O.S.No.1247/2019). There is no cause of
action for the suit. The suit may be dismissed.
7. After impleadment, as the defendant No.2 in the suit-
1, the plaintiff in the suit-2 has appeared through her
Advocate and filed her written statement wherein the
plaintiff in the suit-2 has raised the defence pleas in the line
of defence pleas raised by the defendant No.1 in the suit-1.
Hence, it is not necessary to state the defence pleas raised
by the plaintiff in the suit-2 separately as it amounts to
avoidable repetition.
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Pleadings in O.S.No.26448/2020.
8. The pleaded facts of the case of the plaintiff in
the plaint in the suit - 2 may be stated to the following
effect:
8.1 The plaintiff in the suit -2 has filed this suit
against the plaintiff in the suit - 1 seeking for a
judgment and decree granting permanent
injunction restraining the plaintiff in the suit - 1, her
agents, men, or anybody claiming under or through
her from demolishing any portion of the watchman
shed and putting up any structure over the suit
properties in the suit - 2; or in any way interfering
with the possession of the suit properties in the suit
-2 in the hands of the plaintiff in the suit - 2.
8.2 The defendant No.1 in the suit - 1 had
purchased the suit property in the suit - 2 under a
registered sale deed dated 25.11.2022. In turn the
defendant No.1 in the suit-1 has transferred the suit
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properties in the suit - 2 in favour of the plaintiff in
the suit - 2 under - (i) a registered gift deed dated
24.06.2015, (ii) another registered gift deed dated
13.07.2020, and (iii) rectification deed dated
01.07.2020. Thus, the plaintiff in the suit -2 is the
absolute owner in exclusive possession of the suit
properties in the suit -2. (Note : the details of the
said two gift deeds are noted supra).
8.3 On 10.12.2020, the plaintiff in the suit -1
came near the suit properties in the suit - 2, along
with her supporters and henchmen, and tried to
demolish the standing structures therein and also
posed a threat by saying that she would construct a
building therein.
8.4 The plaintiff in the suit - 1 has no manner of
right, title, or interest in the suit properties in the
suit - 2. The plaintiff in the suit - 2 could resist the
said interference with the help of her watchman,
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and her family members. The plaintiff in the suit -
1 posed a threat to the effect that she would once
again come back to the suit properties in the suit -
2 and would dispossess the plaintiff in the suit -2
from the suit properties in the suit - 2.
8.5 The above are the facts constituting cause of
action for the suit - 2. Hence, the plaintiff in the
suit -2 has filed the suit -2 .
9. The pleaded facts of the case of the plaintiff
in the suit - 1 in the written statement in the suit -
2 may be stated to the following effect:
9.1 The plaintiff in the suit - 1 has categorically
denied the pleaded facts of the case of the plaintiff
in the suit - 2 (in the plaint in the suit -2) allegedly
constituting cause of action for the suit -2.
Thereafter, the plaintiff in the suit-1 has asserted
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her facts to the following effect in her written
statement in the suit - 2.
9.2 The suit properties in the suit - 2 is non-
existent.
9.3 The said two gift deeds (relied on by the
plaintiff in the suit - 2 and also by the defendant
No1 in the suit - 1) are created and concocted
documents.
9.4 The BDA has acquired the entire lands in
Sy.Nos.100/2, 3, 4 and 6 at Sl.Nos.120 to 122 and
124 of the Gazette Notification dated 23.02.2004.
9.5 The sale deed dated 25.11.2002 relied upon
by the defendant No.1 in the suit - 1 and also by
the plaintiff in the suit - 2 are concocted and
fictitious. Prior to 25.11.2002 itself, preliminary
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notification for acquisition of land in Sy.No.100/2, 3,
4 and 6 were published.
9.6 The plaintiff in the suit - 1 has reiterated the
pleaded facts of her case (in the plaint in the suit
-1) in her written statement in the suit - 2 regarding
the suit property in the suit - 1 (which are noted
supra).
9.7 With full knowledge about the suit -1, by
suppressing about filing of the suit -1, the plaintiff in
the suit-2 has filed the suit-2. On this ground alone
the suit-2 is liable to be dismissed.
9.8 Northern boundary of the suit properties in
the suit - 2 is the suit property in the suit - 1. The
Northern boundary of the suit property in the suit -1
is a road. But, however, in the said gift deed dated
13.07.2020, northern boundary of the property
covered under the said gift deed is shown as
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formerly private property and now road. The same
is done only with an intention to knock off the suit
property in the suit-1 from the plaintiff in the suit-1.
9.9 There is no cause of action for the suit in the
suit-2. Hence, the suit-2 may be dismissed,
10. In the suit-1, this Court has framed the
following Issues:
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1. Whether the plaintiff proves she is in
lawful possession of the suit property
as on the date of suit ?
2. Whether plaintiff further proves the
alleged interference by the
defendant?
3. Whether the plaintiff is entitled for the
relief of permanent injunction as
sought for in the suit?
4. What order or decree?
11. In the suit-2, this Court has framed the
following Issues:
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1. Whether the plaintiff proves he is in
lawful possession of the suit property
as on the date of suit ?
2. Whether plaintiff further proves the
alleged interference by the
defendant?
3. Whether the plaintiff is entitled for the
relief of permanent injunction as
sought for in the suit?
4. What order or decree?
12. For proving away the pleaded facts of her
own case; and in refutation of the pleaded facts of
the case of the defendant in the suit-1, and also the
pleaded facts of the case of the plaintiff in the suit-
2, the plaintiff in the suit-1 got examined her GPA
holder by name - Smt. Asha N. and got marked
Ex.P.1 to Ex.P.27 and got closed her side.
13. To prove away the pleaded facts of the case
of the defendant No1 in the suit-1 and also the
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pleaded facts of the case of the plaintiff in the suit-
2; and in refutation of the plaintiff in the suit-1, the
GPA holder of the defendant No1 in the suit-1 and
the plaintiff in the suit-2 by name Sri Madhusudan
B.A. is examined as DW.1 and got marked Ex.D.1 to
Ex.D.57 and got closed their sides.
14. The Taluka Surveyor by name Sri Nagaraju
T.B. is examined as CW.1 and through him Ex.C-1 is
marked.
15. Heard the learned two Advocates (one
engaged in the suit-1 and the other engaged in the
suit-2) on behalf of the plaintiff in the suit-1 and the
learned Advocate for the plaintiff in the suit-2 (and
also for the defendant No.1 in the suit-1). Perused
the records.
16. The learned Advocate for the defendants in
the suit-2 (O.S.No.26448/2020) has relied on the
decisions reported in:
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(1) AIR 2008 SC 2033 - Anathula Sudhakar Vs. P.
Buchi Reddy (dead) by LRs and Ors.
(2) AIR 2021 SC 699 - Kayatulla Parambath Moidu -
Vs. - Namboodiyil Vinodan
(3) ILR 1985 (2) KAR 1432 - Anant Somappa Pattar
Vs. Kalappa Devendrappa Yarakad
17. My findings on the above Issues in both the
suits are as follows :-
Issue Nos.1 & 2 Do not arise for consideration
in suits No.1 & 2 - in these suits for bare injunction
Issue No.3
in suits No.1 & 2 - In the Negative
Issue No.4
in suits No.1 & 2 - As per final Order
for the following :
REASONS
18. ISSUE NO. 1 IN THE SUIT-1 AND THE
ISSUE NO.1 IN THE SUIT-2:-
The plaintiff in the suit-1 filed the suit-1 in
respect of the suit property in the suit-1 against the
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defendant No.1 in the suit-1. The plaintiff in the
suit-2 has got herself impleaded as the defendant
No.2 in the suit-1. But, however, even after the
said impleadment, the plaintiff in the suit-1 has not
claimed any relief in the suit-1 against the plaintiff
in the suit-2. The plaintiff in the suit-2 has filed the
suit-2 against the plaintiff in the suit-1 for bare
injunction in respect of the suit properties in the
suit-2. In both the suits, the title of the concerned
plaintiff over the concerned suit property /
properties is seriously disputed. The suit property /
properties in both the suits is / are the open plot/s.
The fact to be proved by the plaintiff in each suit is
dejure possession. In other words, the plaintiff in
each suit must prove her title over the suit property
/ properties in each suit. Whether this court can
decide such title in the present suits is a pertinent
question for consideration. To consider this aspect
of the matter, it is necessary to take into
consideration the law which governs the field. The
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learned Advocate for the plaintiff in the suit-1 (who
is appearing for her in the suit-2) has relied upon
two judgments of the Hon'ble Supreme Court in AIR
2008 SC 2033 - Anathula Sudhaker - Vs - P. Buchi
Reddy (Dead) by LRs. and Others ; and (ii) AIR
Online 2021 SC 699 - Kayatulla Parambath Moidu -
Vs. - Namboodiyil Vinodan. In Anathula Sudhakar
case (supra), the Hon'ble Supreme Court has ruled
thus at Paras No.11 and 17 :
"11. 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.
11.1) Where a plaintiff is in lawful or
peaceful possession of a property and
such possession is interfered or
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threatened by the 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.
11.2) 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.
11.3) 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
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is also a threat of dispossession from
defendant, the plaintiff will have to sue
for declaration of title and the
consequential relief of injunction. Where
the title of 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."
"17. To summarize, the position in regard
to suits for prohibitory injunction relating
to immovable property, is as under :
(a) Where a cloud is raised over
plaintiff's title and he does not have
possession, a suit for declaration and
possession, with or without a
consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute
or under a cloud, but he is out of
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possession, he has to sue for possession
with a consequential injunction. Where
there is merely an interference with
plaintiff's lawful possession or threat of
dispossession, it is sufficient to sue for
an injunction simpliciter.
(b) As a suit for injunction simpliciter is
concerned only with possession,
normally the issue of title will not be
directly and substantially in issue. The
prayer for injunction will be decided with
reference to the finding on possession.
But in cases where de jure possession
has to be established on the basis of title
to the property, as in the case of vacant
sites, the issue of title may directly and
substantially arise for consideration, as
without a finding thereon, it will not be
possible to decide the issue of
possession.
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(c) But a finding on title cannot be
recorded in a suit for injunction, unless
there are necessary pleadings and
appropriate issue regarding title [either
specific, or implied as noticed in
Annaimuthu Thevar (supra)]. Where the
averments regarding title are absent in a
plaint and where there is no issue
relating to title, the court will not
investigate or examine or render a
finding on a question of title, in a suit for
injunction. Even where there are
necessary pleadings and issue, 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 issue in a suit for mere injunction.
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(d) Where there are necessary pleadings
regarding title, and appropriate issue
relating to title on which parties lead
evidence, if the matter involved is simple
and straight-forward, the court may
decide upon the issue regarding title,
even in a suit for injunction. But such
cases, are the exception to the normal
rule that question of title will not be
decided in suits for injunction. But
persons having clear title and possession
suing for injunction, should not be driven
to the costlier and more cumbersome
remedy of a suit for declaration, merely
because some meddler vexatiously or
wrongfully makes a claim or tries to
encroach upon his property. The court
should use its discretion carefully to
identify cases where it will enquire into
title and cases where it will refer to
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plaintiff to a more comprehensive
declaratory suit, depending upon the
facts of the case."
19. IN AIR Online 2021 SC 699 in Kayatulla
Parambath Moidu case (supra), the Hon'ble
Supreme Court has reiterated the said propositions
of law.
20. Let me consider the question as to whether
the disputed questions of titles in both the suits
must be decided in these very suits themselves or
whether the parties must be relegated to the
remedy by way of comprehensive suits for
declaration of titles. Before considering the dejure
possession in both the suits and deciding the same
one way or the other it would be just and necessary
to decide the question as to whether the dejure
possession must be decided in these suits
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themselves or parties must be asked to go for
comprehensive suits for declarations of titles.
21. Coming back to the facts of these cases, it
has to be noted that the GPA holder of the plaintiff
in the suit-1 by name Smt. Asha is examined as
PW.1. In her examination-in-chief by way of her
affidavit she has stated the pleaded facts of the
case of the plaintiff in the suit-1 which are noted
supra.
22. The GPA holder of the defendant No.1 in the
suit-1 (who is also the GPA holder of the plaintiff in
the suit-2) by name Sri Madhusudan B.A. is
examined as DW.1. In his examination-in-chief by
way of his affidavit he has reiterated the pleaded
facts of the cases of the defendant No.1 in the suit-
1 and the plaintiff in the suit-2.
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23. The PW.1 is cross-examined at length on
behalf of the defendant No.1 in the suit-1 and the
plaintiff in the suit-2. Likewise, the DW.1 is cross-
examined at length on behalf of the plaintiff in the
suit-1.
24. At the cost of repetition it may be noted that
the suit property in the suit-1 is an open plot and
the suit properties in the suit-2 are the open plots.
At this juncture itself it would be useful to note that
the plaintiff in the suit-2 has got produced Ex.D.52
and Ex.D.53 - photographs. The said two
photographs show the existence of building. In the
deposition of the DW.1 in the examination-in-chief
itself at Sl.No.32 at Page-5, the DW.1 has stated to
the effect that Ex.D.36 to Ex.D.54 are the
photographs pertaining to the suit properties in the
suit-2. Though the suit properties in the suit-2
consist of a constructed building, yet the plaintiff in
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the suit-2 has chosen to state that the suit
properties in the suit-2 are the open plots.
25. Likewise, it is an admitted fact that in the
suit property in suit-1 which the plaintiff in the suit-
1 claims to be the property of the plaintiff in the
suit-1, there exists a building which is said to have
been constructed by the plaintiff in the suit-1. It is
also an admitted fact that a Miscellaneous Appeal
was preferred by the plaintiff in the suit-2 before
the Hon'ble High Court of Karnataka challenging the
Order of this Court under Order XXXIX Rules 1 and 2
of C.P.C. wherein the Hon'ble High Court has clarified
that the plaintiff in the suit-1 is at liberty to go on
with construction of the building in the disputed
area (which the plaintiff in the suit-1 claims that it is
the suit property in the suit-1 ; and which the
plaintiff in the suit-2 claims that it is a portion of the
suit properties in the suit-2) and that the plaintiff in
the suit-1 should not claim in equity if the result of
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the suit-1 goes against the plaintiff in the suit-1.
Even thereafter, the plaintiff in the suit-1 has not
changed the description of the suit property in the
suit-1. The plaintiff in the suit-2 (who is the
defendant No.2 in the suit-1) has not sought for
relief of recovery of possession of that portion of
the property where the plaintiff has constructed the
said building. It is the burden on the plaintiff in the
suit-1 to prove the identity of the suit property in
the suit-1. While going through the oral depositions
of PW.1 as well as the DW.1, one can find that out of
28 guntas of land in Sy.No.100/1, 20 guntas of land
is acquired by the BDA. 8 guntas of land was
remaining with the person who was the owner of
said 28 guntas of land at the time of acquisition of
said 20 guntas of land. Where exactly in the said
28 guntas of land, the said 8 guntas of land is
located is not properly pleaded and proved by the
plaintiff in the suit-1. Where exactly in the said 8
guntas of land, the suit property in the suit-1 is
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located is not properly pleaded and proved by the
plaintiff in the suit-1.
26. Likewise Ex.D.28 to Ex.D.30 show that the
entire lands in Sy.Nos.100/2 to 100/6 are acquired
by the BDA. The same is pleaded by the plaintiff in
the suit-1 and the learned Advocate for the plaintiff
in the suit-1 has cross-examined the DW.1
regarding land acquisition of the lands in
Sy.No.100/2 to 100/6 under Ex.D.29 to Ex.D.30.
Such being the position of the facts, would it be
prudent on the part of this court to undertake the
venture to decide the title of the plaintiff in the suit-
2 over the suit properties in the suit-2 would be a
pertinent question.
27. The plaintiff in the suit-1 is merely raising
technical objections regarding competency of the
CW.1 (Taluka Surveyor) to carry out the commission
work by alleging that this court has appointed the
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DDLR to identify the suit property in the suit-1 and
to submit his report and that the DDLR delegated
his power to the CW.1. The learned Advocate for
the plaintiff in the suit-2 has argued stating that
this court has appointed an Advocate to be a Court
Commissioner and directed the DDLR to give
necessary assistance through Court Commissioner
as the Court Commissioner is not a technical expert
in survey measurements. Let that be as it may, the
burden is on the plaintiff in the suit-1 to plead
cogently and to adduce cogent evidence to
establish the title of the plaintiff in the suit-1 with
proper identification. It is the dejure possession
which is in question in both these suits. The
plaintiff in the suit-2 has produced the copy of the
sale deed and got it marked at Ex.D.56 to show that
the plaintiff in the suit-1 has sold the alleged suit
property in the suit-1 in favour of the PW.1 (the GPA
holder of the plaintiff in the suit-1). Having regard
to the entirety of the pleadings, the oral evidence
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and the documentary evidence, in my considered
view, the title of the plaintiff in the suit-1 is
surrounded by clouds and, likewise, the title of the
plaintiff in the suit-2 over the suit properties in the
suit-2 is also surrounded by the clouds.
28. In addition, it may be noticed that the
materials on record indicate that the possibility of
the suit property / properties in both the suits being
situated in the lands acquired by the BDA cannot be
ruled out. In this backdrop, it would be useful to
refer to a recent judgment of the Hon'ble High Court
of Karnataka reported in AIR 2019 KAR 205 - G.V.
Reddy Vs. Ministry of Communication Employees
Co-operative Housing Society Ltd., In the said
judgment, at Para-8, the Hon'ble High Court of
Karnataka had ruled thus regarding ouster of
jurisdiction a Civil Court in respect of the land which
is subject-matter of land acquisition:
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"8. Learned counsel for the respondent
in his argument relied upon two
judgments of Hon'ble Apex Court. The
first judgment is in H.N.Jagannath and
others -vs- State of Karnataka and
others, (2018) 11 SCC 104. In the said
judgment, the Hon'ble Apex Court was
pleased to hold that Civil Court has no
jurisdiction to examine the acquisition
proceedings by necessary implication.
The Civil Court looses its jurisdiction
under Section 9 of CPC. It is High Court
which gets jurisdiction under Article 226
of the Constitution of India or Supreme
Court under Article 136 of the
Constitution of India to examine the
validity of acquisition proceedings.
The second judgment that was relied
upon by the learned counsel for the
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respondent is in Commissioner,
Bangalore Development Authority and
another -vs- Brijesh Reddy and another,
(2013) 3 SCC 66. In the said case also,
with respect to Land Acquisition Act and
at Section 9 of CPC and regarding the
maintainability of suit in Civil Court when
scheduled lands were acquired under
land acquisition proceedings, the Hon'ble
Apex Court was pleased to observe that
Land Acquisition Act is a complete Code
in itself and is meant to serve public
purpose. By necessary implication,
power of Civil Court to take cognizance
under Section 9 of CPC stands excluded
and Civil Court has no jurisdiction to go
into question of validity or legality of
Notification under Section 4, declaration
under Section 6 and subsequent
proceedings. It was further held that Civil
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Court is devoid of jurisdiction to give
declaration or even bare injunction on
invalidity of procedure contemplated
under Land Acquisition Act. Only right
available to aggrieved person is to
approach High Court under Article 226
and Supreme Court under Article 136 of
the Constitution of India with self-
imposed restrictions on their exercise of
extraordinary power.
29. In the facts and circumstances of the case on
hand, it would not be prudent, just and proper to
undertake to exercise the discretion to decide the
complicated issue of fact namely titles of respective
parties over the property / properties claimed by
them respectively. The parties must be relegated to
go for comprehensive suit for declaration and
appropriate consequential relief. In view of the
above noticed law, it is for the plaintiff in both the
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suits to take appropriate action to bring appropriate
proceedings for redressal of their respective
grievances in respect of the respective suit property
/ properties. For all these reasons, in the facts of the
cases on hand, Issue No.1 in both the suits are not
answered as the same do not arise for
consideration.
30. ISSUE NOs. 2 AND 3 IN THE SUIT-1 AND
THE ISSUE Nos.2 AND 3 IN THE SUIT-2:-
Consequently, the question of deciding the alleged
interference in these cases would not arise.
Likewise both the plaintiffs in both the suits are not
entitled for the relief claimed in these two suits for
bare injunction. Hence, it is held that Issue No.2
would not arise for consideration in both the suits
for bare injunction. Issue No.3 in both the suits are
held in the Negative.
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31. ISSUE NO. 4 IN THE SUIT-1 AND THE
ISSUE NO.4 IN THE SUIT-2:-Hence, the following :
ORDER
(1) Both the suits in O.S.No.1247/2019 and O.S.No.26448/2020 are dismissed. (2) No order as to costs.
(3) Draw decree accordingly.
(Keep the original judgment in O.S.No.1247/2019 and copy of the same in O.S.No.26448/2020) (Dictated to the Judgment Writer, transcribed and computerized by her, transcript thereof corrected and then pronounced by me in open court, on this the 14 th day of March, 2023) (D.P. KUMARA SWAMY) VI Addl.City Civil & Sessions Judge C/c of XLI AAddl.City Civil & Sessions Judge Bengaluru City ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiffs side :
P.W.1 - Smt.Asha N. - 01.09.2022 45 O.S.No. 1247/2019 C/W.O.S.No.26448/2020
(b) Defendant's side :
D.W.1 - Sri.B.A.Madhusudan - 29.09.2022 (C) CW.1 - Sri Nagaraju T.B. - 01.07.2022 II. List of documents exhibited on behalf of :
(a) Plaintiffs side :
Ex.P.1 Certified copy of GPA dated: 01.09.2022
Ex.P.2 Original Sale Deed dated: 01.09.2022
Ex.P.3 Gift Deed dated 04.05.2016
Ex.P.4 to Property Tax Receipts
11
Ex.P.12 Form No.15
Ex.P.13 Sketch Plan
Ex.P.14 Certificate issued by BBMP.
Ex.P.15 Vacant Houses and Vacant sites document.
Ex.P.16 Rough Sketch
Ex.P.17 House Site Photos
to 20
Ex.P.21 Compact Disc.
Ex.P.22 Government Gazette
to P.24
Ex.P.25 C.C of the Judgement in OS.25868/2020.
Ex.P.26 Sketch Maps.
& 27
(b) Defendant's side :
Ex.D.1 Certified copy of Special Power of Attorney
Dt.28.9.22
Ex.D.2 Copy of Special Power of Attorney Dt.28.9.2022
Ex.D.3 Certified copy of Gift Deed dated.24.06.2015.
Ex.D.4 Copy of Gift Deed dated: 13.07.2020
Ex.D.5 Certified copy of Absolutte Deed dated.25.11.2002.
Ex.D.6 Document issued by BBMP Authorities
Ex.D.7 Certificate issued by the BBMP
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Ex.D.8 - 12 Vacant sites and Houses document issued by BBMP.
Ex.D.13-14 Sketch Plan Ex.D.15 Endorsement issued by BBMP. Ex.D.16 NCR issued by P.SI. Hennur P.S. Ex.D.17 Complaint to Hennur Police Station. Ex.D.18 Letter to Commissioner, BBMP. Ex.D.19 Certficate issued by BBMP. Ex.D.20 Vacant sites and Houses document issued by BBMP. Ex.D.21 Land and Building Tax paid document. Ex.D.22-25 Complaint Notice under KMC 1976 U/s.308. Ex.D.26 General Power of Attorney. Ex.D.27 Rectification Deed dated.1.07.2020. Ex.D.28-30 Government Gazette. Ex.D.31 Complaint to Asst. Police Commissioner, Banaswadi. Ex.D.32-33 Form NO.15. Ex.D.34-35 Property Tax Receipts. Ex.D.36-53 Photographs Ex.D.54 Compact Disc. Ex.D.55 Certified copy of order of Hon'ble High Court of
Karnataka in MFA No.779/2021 Ex.D.56 Certified copy of sale deed dated 18.11.2022 Ex.D.57 Encumbrance cert from 01.04.2018 to 05.12.2022 Ex.C-1 Commissioner Report dated 27.05.2022 VI Addl.City Civil & Sessions Judge Bengaluru City 47 O.S.No. 1247/2019 C/W.O.S.No.26448/2020