Bangalore District Court
Sri.Mohammed Fairoze Pasha vs Sri.Akram Pasha on 17 April, 2021
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 17th day of April 2021.
O.S. No.25229/2015
Plaintiff: Sri.Mohammed Fairoze Pasha,
S/o. Late A.R. Mohammed Dastagir,
Aged about 65 years,
R/at No.88, M.R.Palya Main Road,
J.C.Nagar, Bengaluru560 006.
(By Sri.Manzoor Pasha & Co. Adv.)
V/S
Defendant: Sri.Akram Pasha,
S/o. Late A.R. Abdul Subhan,
Aged about 40 years,
Residing at Old No.3,
New No.6, Reading Room Street,
J.C.nagar, M.R.Palya,
Bengaluru560 006.
(By Sri.Mallikarjun C.Basareddy Adv.)
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O.S. No.25229/2015
O.S.
No.26652/2018
Date of Institution of the suit 28.02.2015
Nature of the (Suit or pronote, suit
for declaration and possession, suit MANDATORY INJUNCTION
for injunction, etc.)
Date of the commencement of
22.09.2017
recording of the Evidence.
Date on which the Judgment was
17.04.2021
pronounced.
Year/s Month/s Day/s
Total duration 06 01 19
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bangaluru. (CCH74)
JUDGMENT
The plaintiff has filed this suit for mandatory injunction, directing the defendant to remove the illegal structures put up on the Southern side of the schedule property by illegal encroachment over the land belonging to the plaintiff to an extent of 165 sq.ft.; i.e., East to West: 33 ft., North to South: 5 ft., and restore the same to the plaintiff. 3
O.S. No.25229/2015 O.S. No.26652/2018
2. Brief facts of the plaintiff's case; It is the case of the plaintiff that plaintiff is the absolute owner and in possession and enjoyment of the suit property by virtue of registered gift deed dated 12.5.2011. On basis of registered gift deed the khatha and other revenue records have been changed in the name of plaintiff and plaintiff thus acquired the right, title and interest over the property and paying electricity and water bills. Such being the fact, on 20.2.2014 the defendant has trespassed into schedule property belongs to the plaintiff on the Southern side and encroached over it to an extent of 165 sq. ft., land comprised in the schedule property. Thus, the plaintiff had requested the defendant about the encroachment, but defendant did not heed the request of the plaintiff. On account of which the plaintiff had approached jurisdictional police, but, police have 4 O.S. No.25229/2015 O.S. No.26652/2018 not taken any action against the defendant. Hence, the plaintiff has filed this suit for mandatory injunction directing the defendants to hand over the encroached area to the plaintiff.
3. In pursuance of the suit summons the defendant appeared through counsel and filed written statement denying the averments of the plaint except those which are specifically admitted as true. The defendant has specifically denied the averments of the plaint para4, 5 & 6 as false. After denying the entire case of the plaintiff the defendant has filed counter claim in the written statement.
4. COUNTER CLAIM OF DEFENDANT It is contended in the counter claim that item No.1 and 2 has been fallen to the defendant by way of registered gift deed executed by his mother. Further contended in the 5 O.S. No.25229/2015 O.S. No.26652/2018 counter claim that the defendant is also having water connection and civic amenities to the counter claim schedule property. Thus, the defendant used to pay necessary charges to the BESCOM. It is the case of the defendant that his father has obtained the sanctioned plan in the year 1978 from the BBMP and put up construction in item No.2 property as measurement shown in the item No.2 schedule. Thus, the defendant is in the lawful owner and in possession of item No.2 schedule property. Further contended in the counter claim that plaintiff has encroached over the portion of defendant's property to the extent that East to West: 31 feet and North to South: 3 feet towards Northern side, total measuring 93 sq.ft. The said encroachment came to knowledge of the defendant when he has received a legal notice dated 1.9.2014, issued by the plaintiff's advocate. Thus, the defendant had requested the plaintiff to hand over 6 O.S. No.25229/2015 O.S. No.26652/2018 the possession of encroached area, but instead of doing so, the plaintiff has filed this present suit with a intention to harass the defendant. Thus, the defendant seeking set off and counter claim in the above suit. With this, the defendant sought for direction directing the plaintiff to remove the illegal structure built up on Northern side of item No.1. With this, he prayed for allowing the counter claim.
5. The plaintiff has not filed his written statement to the counter claim.
6. On basis of the pleadings and counter claim, my learned Predecessor has framed the following: ISSUES
1. Whether the plaintiff proves that he is the absolute owner of the plaint schedule property?
2. Whether the plaintiff further proves that the defendant has illegally encroached to an extent of 165 Sq.ft 7 O.S. No.25229/2015 O.S. No.26652/2018 in the plaint schedule property and has put up the illegal structure?
3. Whether the plaintiff further proves that the defendant is liable to remove the said illegal structure?
4. Whether the plaintiff is entitled for the Mandatory injunction as prayed in the plaint?
5. Whether the defendant proves that he is the absolute owner of the Item No.1 of the property described in the schedule to the written statement?
6. Whether the defendant further proves that the plaintiff has illegally encroached to an extent of 93 Sq.ft. in the Item No.1 of the written statement schedule property and has put up the illegal structure?
7. Whether the defendant further proves that the plaintiff is liable to reove the said illegal structure?
8. Whether the defendant is entitled for the Mandatory Injunction as prayed by way of counter claim in the written statement?
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9. Whether the plaintiff further proves that the defendant is trying to alienate and encumber the plaint schedule property?
10. Whether the parties are entitled for the relief claimed?
11. What order or decree?
7. The plaintiff is examined as P.W.1 by filing affidavit in lieu of examination in chief. After examination P.W.1 did not tendered for crossexamination. Hence, his evidence was discarded and posted for evidence of defendant on counter claim. Defendant is examined as D.W.1 and got marked Ex.D.1 to D.11. The learned counsel for the plaintiff failed to crossexamined D.W.1 even after giving sufficient opportunity to the counsel for the plaintiff.
8. Argument on plaintiff side taken as heard after giving sufficient opportunity and the learned counsel for the defendant has filed written argument. 9
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9. My answer to above issues are as follows: 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 Affirmative, Issue No.6: In the Negative, Issue No.7: In the Negative, Issue No.8: In the Negative, Issue No.9: In the Negative, Issue No.10: In the Negative, Issue No.11: As per the final order, for the following: REASONS
10. ISSUE Nos.1 to 4 & 9: These issues are interconnected to each other, in order to avoid repetition, I proposed to answer these issues commonly. The plaintiff is 10 O.S. No.25229/2015 O.S. No.26652/2018 examined as P.W.1 on 22.9.2017, by filing affidavit in lieu of examination in chief and posted for further chief of P.W.1 on 8.11.2017 and 13.3.2018. Meanwhile suit was transferred to this court from CCH No.29, in view of the Notification No.ADM1(A)413/2018, dated 31.7.2018 of the Hon'ble Principal City Civil & Sessions Judge, Bangaluru. Again the suit was called out on 24.9.2018 before this court and P.W.1 and his counsel absent, defendant present, his counsel absent and posted for further chief of P.W.1 on 4.10.2018.
11. On 4.10.2018 further chief of P.W.1 was taken as Nil and posted for cross of P.W.1 on 19.11.2018, 7.12.2018, 22.1.2019. In view of the General Holiday on 22.2.2019 case was called out on 23.1.2019 and evidence of P.W.1 was discarded for nontendering for crossexamination and on the same day the defendant is examined as D.W.1 and got marked Ex.D.1 to D.11 and posted for cross of D.W.1 on 11 O.S. No.25229/2015 O.S. No.26652/2018 7.2.2019, on 27.2.2019, 20.3.2019. On these date of hearing D.W.1 was regularly present for crossexamination, hence on 20.3.2019 the learned counsel for plaintiff sought time for cross of DW1, the prayer of the learned counsel for the plaintiff for crossexamination of D.W.1 was rejected and cross of D.W.1 was taken as Nil. The learned counsel for the plaintiff has filed IA u/S 151 of CPC seeking recall of P.W.1. Hence, suit was posted for objection to IA and further evidence of defendant side if any.
12. Thereafter, suit was referred to Lokadalath for settlement. Settlement failed. Hence, suit was posted for objection to IA filed by the plaintiff for recall of P.W.1, objection filed, posted for hearing on 2.7.2019, 9.7.2019, on 25.7.2019. On 25.7.2019 plaintiff and his counsel absent, hence hearing on IA on plaintiff side taken as heard and heard on IA on defendant side, posted for order. On 12 O.S. No.25229/2015 O.S. No.26652/2018 20.11.2019 IA was allowed with cost of Rs.1,000/ and order dated 22.1.2019 (23.1.2019) was recalled and P.W.1 is permitted to tender himself for crossexamination on 6.12.2019.
13. On 6.12.2019 again P.W.1 and his counsel absent, cost not paid, defendant and his counsel present. On 6.12.2019 the evidence of P.W.1 was again discarded in 2 nd time for nontendering for crossexamination and on the same day the learned counsel for the defendant has submitted that the defendant has no further evidence. Hence, evidence of defendant side is closed and posted for argument on 17.12.2019.
14. On 17.12.2019 the defendant has filed written argument, hence posted for argument on plaintiff side on 7.1.2020. On 7.1.2020 the learned counsel for plaintiff has 13 O.S. No.25229/2015 O.S. No.26652/2018 filed two IAs u/S 151 of CPC for reopening and recall of P.W.1 and again posted for objection to IA on 28.1.2020. On 28.1.2020 objection filed by the learned counsel for the defendant and posted for hearing on IA on 26.2.2020. On 26.2.2020 plaintiff absent, his counsel present, defendant present, his counsel absent, the defendant furnished written argument on IAs u/S 151 of CPC. Hence, posted for reply if any on 23.3.2020, 6.7.2020, 7.7.2020, 20.7.2020, 5.8.2020, 26.8.2020, 8.9.2020, 3.10.2020.
15. On 3.10.2020 the learned counsel Sri.NA has filed vakalath for plaintiff, by taking no objection from the previous counsel, before the physical filing counter and same is taken on record and defendant present issued court notice to plaintiff to keep present his advocate for hearing and posted for hearing on I.As. on 18.11.2020, 21.12.2020, 3.2.2021 for hearing. On 3.2.2021 P.W.1 and his counsel 14 O.S. No.25229/2015 O.S. No.26652/2018 present, the counsel for defendant absent, heard on IA on plaintiff side and posted for hearing on defendant side. On 10.3.2021 heard on IA on both side and posted for order.
16. On 3.4.2021 common order was passed and again IA filed by the plaintiff u/S 151 of CPC for recall of P.W.1 for crossexamination and seeking permission to tender himself for crossexamination were dismissed with cost of Rs.2,000/ and posted for argument.
17. On 12.4.2021 counsel for the plaintiff present and defendant present, his counsel absent. The learned counsel for the plaintiff prays time for argument, Prayer was rejected and argument on plaintiff side is taken as heard and counsel for defendant absent, but defendant present and submitted that he has already submitted his argument, hence posted for judgment.
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18. Now the question before the court is as to whether suit of the plaintiff is maintainable when P.W.1 was not tendered for crossexamination and closed the evidence of plaintiff side?
19. In the present suit, though plaintiff is examined as PW.1 by filing Affidavit in lieu of examination is chief and posted for further chief of PW1. After giving sufficient opportunity to PW1 for further chief of PW1. Further chief of PW1 closed and posted for crossexamination of PW1. But, P.W.1 did not tendered for crossexamination, hence, the evidence of P.W.1 was discarded for nontendering for cross examination.
20. So, the evidence of PW.1 was closed for non tendering himself for Crossexamination, then the evidence of PW.1 has no evidentiary value under the eye of law as evidence of PW.1 was not tested by cross examination due to 16 O.S. No.25229/2015 O.S. No.26652/2018 nontendering of PW.1 for cross examination. Further the Plaintiff did not choose to lead any other witnesses evidence, even opportunity has been given after closing the evidence of PW.1. Thus, the plaintiff failed to prove issue No.1 to 4 and
9. Under such circumstances, I am of the opinion that, the suit of the Plaintiff is to be dismissed acting u/O 9 R. 8 of CPC. Or.9 R. 8 of CPC, reads thus:
"Procedure where defendant only appears Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall 17 O.S. No.25229/2015 O.S. No.26652/2018 dismiss the suit so far as it relates to the remainder".
21. In support of my opinion, I relied on decision reported in 2018(3) KCCR 2151 Shivagouda Apanna Belavi & others V/s Neelappa Apanna Belavi, since deceased by LRs. The lordship have held in the said decision, at Head NoteA and Para 9 and 10 and observed at Head NoteA, thus:
"A.CIVIL PROCEDURE CODE, 1908 Order 9, Rule 13 Plaintiff not subjecting himself for Cross examinationHis evidence (examination in chief) has no value in the eye of law. Only course left to Court is to dismiss the suit."
Thus plaintiff failed to lead oral and documentary evidence even after giving sufficient opportunity and plaintiff failed to tender himself for crossexamination though 18 O.S. No.25229/2015 O.S. No.26652/2018 sufficient opportunity has been given to the plaintiff even before lock down and after lock down period. Thus, the plaintiff failed to prove his case and failed to prove issue No.1 to 4 and 9. Hence, I answer issue Nos.1 to 4 and 9 in the Negative.
22. JUDGMENT ON COUNTERCLAIM OF DEFENDANT: The defendant has filed written statement and denied the entire case of the plaintiff. After denial of the case of the plaintiff the defendant has filed counterclaim in the written statement.
23. The brief facts of the counterclaim: It is specific case of the defendant/plaintiff in counter claim that he is the absolute owner and in possession of the counter claim schedule properties item No.1 and 2 shown as counterclaim schedule properties by virtue of registered Gift 19 O.S. No.25229/2015 O.S. No.26652/2018 deed dt.21.08.1999, executed by his mother in respect of counterclaim schedule properties. By virtue of said registered Gift deed, all revenue records changed in the name of plaintiff, in respect of counterclaim schedule properties. Further the defendant contended in the counterclaim that, during life time of his father he has obtained sanction plan from the competent authority for construction of residential building and constructed residential building over the counterclaim schedule properties in accordance with sanction plan and plaintiff is residing in the said building in the counterclaim schedule properties.
Such being the fact, the plaintiff/defendant in counter claim, without having any right, interest over the counter claim schedule properties, had encroached counterclaim schedule property, item No.1 property to the extent of East to West: 31 feet and North to South: 3 feet, towards Northern 20 O.S. No.25229/2015 O.S. No.26652/2018 side of counter claim schedule properties. The total extent of encroached property is 93 Sq.ft. The defendant/plaintiff in counterclaim came to know about the encroachment when he received notice from the plaintiff's counsel on 17.04.2015 and requested the plaintiff/defendant in counter claim about the encroachment, but plaintiff/defendant in counter claim did not heed the request of the defendant/plaintiff in counterclaim. Instead of handing over the possession of encroached area to the defendant/plaintiff in counterclaim the plaintiff/defendant in counterclaim, has filed this suit with a intention to harass the defendant. With this the defendant/plaintiff in counterclaim prayed for decree the counterclaim as prayed.
24. On the other hand, the plaintiff/defendant in counterclaim has not filed any written statement to the counterclaim. The defendant/plaintiff in counterclaim is 21 O.S. No.25229/2015 O.S. No.26652/2018 examined as DW1 and got marked Ex.D.1 to Ex.D.11. The plaintiff/ defendant in counterclaim did not choose to cross examine DW1 and did not choose to lead his evidence even after giving sufficient opportunity.
25. Head argument of the learned counsel for the defendant and the learned counsel for the plaintiff has filed written argument.
26. I have perused oral and documentary evidence led by the defendant/plaintiff in counterclaim and perused the materials placed before the court. In respect of counter claim my learned Predecessor has framed the following:
5. Whether the defendant proves that he is the absolute owner of the Item No.1 of the property described in the schedule to the written statement?
6. Whether the defendant further proves that the plaintiff has illegally encroached to an extent of 93 Sq.ft. 22
O.S. No.25229/2015 O.S. No.26652/2018 in the Item No.1 of the written statement schedule property and has put up the illegal structure?
7. Whether the defendant further proves that the plaintiff is liable to remove the said illegal structure?
8. Whether the defendant is entitled for the Mandatory Injunction as prayed by way of counter claim in the written statement?
10. Whether the parties are entitled for the relief claimed?
11. What order or decree?
27. My answer to the above issues are as follows: Issue No.5: In the Affirmative, Issue No.6: In the Negative, Issue No.7: In the Negative, Issue No.8: In the Negative, Issue No.10: In the Negative, Issue No.11: As per the final order, 23 O.S. No.25229/2015 O.S. No.26652/2018 for the following: REASONS
28. ISSUE No.5: In order to prove his case the defendant/plaintiff in counterclaim, is examined as DW1 and got marked Ex.D.1 to Ex.D.11. DW1 examined by filing affidavit in lieu of examination in chief reiterating the averments of the written statement and counterclaim. DW1 deposed before the court that, he is the absolute owner and in possession of the counterclaim schedule properties shown as item No.1 and 2 in the counterclaim, by virtue of registered Gift deed dt. 21.08.1999, executed by his mother and all revenue records stands in the name of plaintiff and plaintiff is paying tax to the competent authority, in respect of counterclaim schedule properties and further deposed before the court that, his father has constructed house over the counterclaim schedule properties after obtaining sanction 24 O.S. No.25229/2015 O.S. No.26652/2018 plan from the competent authority and plaintiff is residing in the counterclaim schedule properties as a absolute owner. Such being the fact the plaintiff/defendant in counterclaim, without having any right, interest over the counterclaim schedule properties, had encroached over it to the extent of East to West:31 feet and North to South: 3 feet, total extent of encroached area is 93 Sq.ft. towards northern side of counterclaim schedule properties. Thus, the defendant/plaintiff in counterclaim has requested the plaintiff/defendant in counter claim for removal of encroachment and for restoration of the same, but the plaintiff/defendant in counterclaim did not heed the request of the defendant. The defendant/plaintiff in counter claim being handicapped person and not in position to restrained the plaintiff/ defendant in counter claim from his illegal act. 25
O.S. No.25229/2015 O.S. No.26652/2018 Hence, he approached the court for the relief sought in the counterclaim.
29. In support of his oral evidence and in order to prove counterclaim, the defendant has produced as many as 11 documents which have been marked at Ex.D.1 to Ex.D.11. Ex.D.1 is the disability certificate and identity card for differently disabled persons, issued by the Government of Karnataka to the defendant/plaintiff in counterclaim. Ex.D.2 is the certified copy of registered Gift deed dt.21.08.1999, executed by the mother of the defendant, in respect of counterclaim schedule properties item No.1 and 2, in favour of defendant/plaintiff in counterclaim. Ex.D.3 is the Khatha extract dt.08.07.2014, Ex.D.4 is Khatha extract dt.08.07.2014, Ex.D.5 Khatha Certificate, Ex.D.6 Khatha extract, Ex.D.7 and Ex.D.8 are the Tax paid receipt paid by the defendant in respect of counterclaim schedule properties. 26
O.S. No.25229/2015 O.S. No.26652/2018 Ex.D.9 is the water and electricity bills, Ex.D.10 is the original sanction plan obtained by the father of the defendant for construction of house over the counterclaim schedule properties and Ex.D.11 is the reply notice issued by the defendant through his counsel to the plaintiff. All revenue records stands in the name of plaintiff in respect of counter claim schedule properties.
30. Now it is relevant to appreciate Ex.D.2 to Ex.D.11. I have perused oral and documentary evidence led by the defendant/plaintiff in counterclaim. On perusal of the same it is clear that, originally counterclaim schedule properties were belongs to the father of the defendant/plaintiff is counterclaim, during his life time he has executed a Gift deed in favour of his wife i.e., mother of defendant/plaintiff in counterclaim and during her life time she has executed Ex.D.2, registered Gift deed, in favour of her 27 O.S. No.25229/2015 O.S. No.26652/2018 son defendant/plaintiff in the counterclaim, in respect of counterclaim schedule properties including schedule property shown in counter claim. By virtue of said registered Gift deed Ex.D.2 the plaintiff in counterclaim, is absolute owner and in possession and enjoyment of the properties shown in counterclaim. I have perused the recital of the registered Gift deed dt.21.08.1999 marked at Ex.D.2, which reads thus: "Whereas originally one Major Mohammed Ishaq Sab s/o. Late Abdul Rehaman, resident of No.3, reading room street, J.C.Nagar, Bangalore was the absolute owner in possession and enjoyment of immovable properties (1) those property bearing Corporation No.3, reading room street, J.C.Nagar, (Munireddy Palya), Bangalore and (2) those property bearing 28 O.S. No.25229/2015 O.S. No.26652/2018 Corporation No.89, Main Road, J.C.Nagar (Munireddy Palya), Bangalore, which properties are fully and specifically described in the schedule hereunder and hereinafter referred to as schedule property, same being acquired by him under a deed of absolute sale dated.07.12.1908, which is duly registered as a document No.1638 of 1908 09, Page No.250257, Volume 96 of Book I of the office of SubRegistrar, Bangalore, Razia Begum Akram Pasha, 2nd Sheet to document No.160/992000, Book No.I, KCSR (Seal), whereas on the demise of above named Major Mohammed Ishaq Sab, the schedule property was inherited by his only son Abdul Rehaman being his only legal heir and become the absolute, sole and exclusive owner thereof, whereas subsequently the above 29 O.S. No.25229/2015 O.S. No.26652/2018 named Abdul Rehman expired leaving behind his only son Abdul Subhan, being his only legal heir entitle to inherit and succeed his estate which includes the schedule property and accordingly the above named Abdul Subhan become the absolute owner in possession and enjoyment of the schedule property. Whereas the above named Abdul Subhan by exercising his possessary and proprietary rights over the schedule property has gifted the schedule property in favour of his wife Mrs.Razia Begum, the donar herein, by way of Hiba in accordance with the principles of Mohammedan Law as farback as 19.11.1986, where as the donar by exercising her possessary and property rights over the schedule property has obtained the change of khatha in her own name and has 30 O.S. No.25229/2015 O.S. No.26652/2018 been paying the property taxes to the competent authorities in her own name and eversince the date of acquiring the schedule property she has been in possession and enjoyment of the above said schedule property as a absolute, sole and exclusive owner thereof without any interference or interruption from any person whosoerver.
Whereas the donee is the son of the donor and donee is a physically handicapped person and requires the support for his living. "
31. Thus the recital in Ex.D.2 clearly establishes that donor of the defendant/plaintiff in counter claim was absolute owner in possession of the counterclaim schedule properties including schedule shown in the counterclaim at the time of execution of Ex.D.2. Thus, Ex.D.2 clearly establishes that, Razia Begum has executed registered Gift 31 O.S. No.25229/2015 O.S. No.26652/2018 deed in favour of her son defendant herein/plaintiff in counter claim in respect of counterclaim schedule properties item No.1 and 2. Thus, by virtue of Ex.D.2 the plaintiff is absolute owner and in possession of the counterclaim schedule properties.
32. According to Sec.3 Explanation 1 of Transfer of Property Act, where any transaction relating to immovable property is required by law to be and has been effected by registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration. Further as per section 17 of the Registration Act, the registered documents have got presumptive value that contents of registered document are presumed to be genuine, as held by the Hon'ble Apex Court in the decision reported in 2009(5) SCC 713 in case of Vimalchand Jain V/s 32 O.S. No.25229/2015 O.S. No.26652/2018 Ramakant Jadoo, that a registered deed of sale carries presumption that transaction was genuine one. If the execution of sale deed is proved, the onus is on the other side to prove that the deed was not executed and it was a sham transaction. Thus, the burden to prove that it is not a genuine lies on the person who alleges that it is not so.
33. Ex.D.3 to Ex.D.6 are the Khatha Certificates, Khatha Extracts and Ex.D.7 to Ex.D.8 are Tax paid receipts, Ex.D.9 is the water and electricity bills, Ex.D.10 is the sanction plan obtained by the father of the defendant/plaintiff in the counterclaim to construct house over the counterclaim schedule property and constructed in accordance with said sanction plan. All Revenue records referred supra, are stands in the name of defendant/plaintiff in counterclaim, in respect of counterclaim schedule 33 O.S. No.25229/2015 O.S. No.26652/2018 properties. The revenue entries have got presumptive value U/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 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."34
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34. In support of my opinion I relied on the decision reported in ILR 2004 KAR.1074 in case of Naganna Vs. Shivanna. The lordship 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 declaration title cannot be granted."
35. 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 lordship 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."35
O.S. No.25229/2015 O.S. No.26652/2018 The lordship have discussed at Para 12 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, required to appreciate the evidence keeping in view the correct legal principles in mind."
36. Thus on careful perusal of the oral and documentary evidence led by the defendant/plaintiff in counterclaim it is clear that the defendant has proved that he is the absolute owner of the counterclaim schedule properties which includes schedule property shown in 36 O.S. No.25229/2015 O.S. No.26652/2018 counterclaim, by virtue of registered Gift deed dated.21.08.1999 and by virtue of revenue records extracted supra. With the above observations and reasons assigned and decisions referred above, I hold that defendant/plaintiff in counter claim has proved that he is the absolute owner of counterclaim schedule properties item No.1 and 2 including the property shown in counterclaim as schedule property. Hence, I answer this issue in the Affirmative.
37. ISSUE Nos.6, 7 & 8: These issues are inter connected to each other. Hence, I proposed to answer these issues commonly to avoid the repetition. It is specific case of the defendant/plaintiff in counterclaim that, he is the absolute owner and in possession of the counterclaim schedule properties shown as item No.1 and 2 by virtue of Ex.D.2 and he has established the same over the counter claim schedule properties. Such being the fact the 37 O.S. No.25229/2015 O.S. No.26652/2018 defendant/plaintiff in counter claim has contended that, the plaintiff/defendant in counterclaim had encroached over the counter claim schedule properties item No.1 and 2 as shown in the counterclaim schedule property to the extent of East to West : 31 feet, North to South: 3 feet, total extent of encroached area is 93 Sq.ft., on northern side of the item No.1. But except oral evidence in respect of encroachment over the counterclaim properties there is no documentary evidence to establish the exact encroached area over the counterclaim properties. In the absence of any material to prove the exact encroached area as alleged in the counter claim, it cannot be held that the defendant/plaintiff in counter claim is entitle for removal of encroached area by way of mandatory injunction.
38. The prohibitory injunction is an order that restrains the defendant from committing a specified act, it is 38 O.S. No.25229/2015 O.S. No.26652/2018 the most common form of injunction. A mandatory injunction is an order that requires the defendant to act positively. In order to grant mandatory injunction the party who sought for mandatory injunction has to satisfy two conditions U/Sec.39 of the Specific Relief Act. Condition No.1 is Prevention of Breach of Obligation, there must be an obligation on part of the defendant that obligation must be legal obligation not moral obligation, u/Sec.2(A) of the Specific Relief Act, obligations includes every duty enforceable by law and by the definition itself indicates that, the obligation does not confine merely to a contractual one. Thus, the Mandatory Injunction can be granted not only in the cases of specific breach of contract but also for breach of every obligation which is enforceable by law. The 2 nd condition must be considered while granting the Mandatory 39 O.S. No.25229/2015 O.S. No.26652/2018 Injunction that the Mandatory Injunction should be enforceable by court.
39. Thus, the power to grant Mandatory Injunction is to be exercised in very exceptional and rare circumstances, subject to the conditions provided U/Sec.39 of Specific Relief Act, which requires the relief can be granted, where breach of an obligation is capable of Specific Performance by the court. The grant of Mandatory Injunction is an equitable relief and it has to be issued in aid of equity, justice and facts of the case defending on the circumstances and facts of each particular case.
40. In the case on hand, the defendant/plaintiff in counterclaim, has not proved the exact encroachment of the plaintiff/defendant in counter claim, over the counterclaim schedule property. There is no any documentary evidence to show the exact encroachment. The defendant has not made 40 O.S. No.25229/2015 O.S. No.26652/2018 any attempt to get appointment of Court Commissioner for inspection of spot and submit a report about the exact encroachment. Thus in the absence of any material before the court in respect of encroachment alleged in the counter claim, it cannot be held that the defendant/plaintiff in counter claim has established the exact encroachment and the defendant/plaintiff in counter claim is entitle for restoration of encroached area by way of mandatory injunction. Thus, on careful perusal of the materials placed before the court, this court is of opinion that, the defendant/plaintiff in counter claim, is utterly failed to prove the exact encroachment over the counter claim schedule property. Hence, I answer issue No.6, 7 and 8 in the Negative.
41. ISSUE No.10: The defendant/plaintiff in counter claim has proved his title over the counter claim schedule 41 O.S. No.25229/2015 O.S. No.26652/2018 properties item No.1 and 2 including counterclaim schedule property by producing registered title deed and revenue entries. But the defendant/plaintiff in counter claim, has failed to prove the exact encroachment over the counter claim schedule property to have the equitable relief of mandatory injunction for removal of encroachment and for restoration of the same. Hence, the defendant/plaintiff in counter claim is not entitle for the relief of mandatory injunction. That apart, even the defendant has not paid any court fee in respect of reliefs sought in the counter claim. Ofcourse it is a well settled law that parties may be directed to pay the court fee before drawing the decree, but, the defendant failed to prove the encroachment over the counter claim properties by the plaintiff. No attempt has been made to prove the exact encroachment. Thus, the defendant failed to prove the encroachment as claimed in the counter claim. 42
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42. In the case on hand, the plaintiff contended in the plaint that the defendant has encroached over the suit schedule property to the extent of 165 sq.ft., measuring East to West: 33 ft., and North to South: 5 ft., and sought for restoration of the same. On the other hand, the defendant appeared through counsel and filed written statement and denied the claim of the plaintiff and in the written statement the defendant has pleaded counter claim stating that the plaintiff himself has encroached over the properties shown in the counter claim and sought for removal of encroachment and for restoration of the same. But, in both cases the plaintiff failed to prove his case by tendering himself for crossexamination. On the other hand, the defendant has produced Ex.D.1 to D.11 which are establishes only the title and possession of the defendant over the counter claim properties. But, no single piece of evidence produced by the 43 O.S. No.25229/2015 O.S. No.26652/2018 defendant to prove the exact encroachment of the plaintiff over the counter claim schedule properties. Hence, both plaintiff and defendant have failed to prove their case and counter claim by producing cogent evidence. Thus, both plaintiff and defendant are not entitled for the relief of mandatory injunction as sought by them in the plaint as well as in the counter claim. Hence, I answer this issue in the Negative.
43. ISSUE No.11: In view of the findings on issue No.1 to 10, I proceed to pass the following: ORDER Suit filed by the plaintiff is hereby dismissed.
The counterclaim made by the defendant in the written statement is hereby dismissed.
No order as to costs.
44
O.S. No.25229/2015 O.S. No.26652/2018 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 17th day of April 2021).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) SCHEDULE All that piece and parcel of the immovable property comprising of land and the building structures standing thereon bearing Corporation New No.88 (earlier No.87 &
88), PID No.9710788, consisting of a residential house in the rear side and two shops facing the Main Road in the Ground floor and the stair case for access to the 1 st floor and residential house in the First Floor (old Nos.94, 95 and 96, carved out of the larger property bearing No.121), situated at Munireddypalya Main Road, J.C.Nagar, Bengaluru560 006, within the BBMP Ward No.97, measuring East to West 63 feet 45 O.S. No.25229/2015 O.S. No.26652/2018 and North to South: 25 feet 6 inches, totally ad measuring 1606.5 Sq.feet and bounded on the:
East by : Reading Room Road;
West by : Munireddypalya Main Road;
North by : Private Properties (Earlier described
as properties belonginng to
Mahammed Hussain & Roop Singh);
South by : Private Property (Earlier described as
Abdul Rahman's property).
COUNTERCLAIM SCHEDULE PROPERTY All that piece and parcel of immovable property bearing Corporation No.3, situated at Reading Room Street, J.C.Nagar (Munireddypalya), Bangalore, together with all the constructions thereon measuring to the extent of measuring East to West : 31 feet, North to South: 3 feet, total measuring 93 Square feet and to restore the same to the defendant, and bounded on the :
East by : Reading Room Road;
West by : Remaining portion of property
bearing No.89;
North by : Sri.AR Dastagir's Property, and;
South by : Sri.Gulam Ali's property.
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No.26652/2018
ANNEXURES
List of witness examined for the plaintiff's side:
PW1 Mohammed Fairoze Pasha List of document exhibited for the plaintiff's side:
NIL List of witness examined for the defendant's side:
DW1 Sri.Akram Pasha List of documents exhibited for the defendant's side:
Ex.D.1 Originally disability certificate and Identity ard for differently abled persons Ex.D.2 Certified copy of the gift deed dt.21.08.1999 Ex.D.3 Khatha Certificate dt.08.07.2014 Ex.D.4 Khatha Extract dt.08.07.2014 Ex.D.5 Khatha Certificate dt.08.07.2014 Ex.D.6 Khatha Extract dt.08.07.2014 Ex.D.7 Tax paid receipt and bill paid for the year 201819 Ex.D.8 Tax paid receipt and bill paid for th eyear 201819 in respect of item No.2 Ex.D.9 Electrical receipt and bill in respect of item 47 O.S. No.25229/2015 O.S. No.26652/2018 No.2 (2 receipts and 2 bills) Ex.D.10 Sanction plan in respect of item No.2 Ex.D.11 Office copy of legal notice dt.17.04.2014 (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 48 O.S. No.25229/2015 O.S. No.26652/2018 49 O.S. No.25229/2015 O.S. No.26652/2018