Bangalore District Court
Smt.Jayalakshmamma vs Sri.B.Tilak on 11 December, 2015
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH.NO.43).
PRESENT: Sri. LEKKADAPPA JAMBIGI,
B.Com., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE.
Dated this the 11th day of December 2015.
O.S.No.329/2014
Plaintiff:- Smt.Jayalakshmamma,
W/o.Sri.C.K.Nanjundaswamy,
Aged about 35 years,
Residing at No.15 & 16,
Next to BWSSB Water Supply Tank,
Srinivasanagar, Sunkadakatte,
Srigandhada Kaval,
Vishwaneedam Post,
Bangalore -560 091.
(By - Sri.B.C.Avinash, Adv.)
v.
Defendants:- 1. Sri.B.Tilak,
S/o.Sri.Bandi Kempegowda,
Aged about 33 years,
Residing at No.405,
10th Cross Road,
11th Main Road,
Behind BWSSB Water Tank,
Srinivasanagar, Sunkadakatte,
Srigandhada Kaval,
Vishwaneedam Post,
Bangalore -560 091.
2 O.S.No.329/2014
2. Sri.T.Channappa,
S/o. Late Thimmaiah,
Aged about 65 years,
3. Sri.C.Rangaswamy,
S/o.Sri.T.Channappa,
Aged about 30 years,
4. Sri.C.Jagadeesh,
S/o.Sri.T.Channappa,
Aged about 25 years,
Defendants 2 to 4 are residing at
Srinivasanagar, Sunkadakatte,
Srigandhada Kaval,
Vishwaneedam Post,
Bangalore -560 091.
(D1- By Sri.Surya Prakash.D., Adv.
D2 to 4 - By Smt.K.Mamatha, Adv.)
Date of institution of the suit : 09.01.2014
Nature of the suit : Permanent Injunction
Date of commencement of : 02.08.2014
Recording of the evidence
Date on which the Judgment : 11.12.2015
was pronounced
Total Duration : Years Months Days
01 11 02
(LEKKADAPPA JAMBIGI)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
3 O.S.No.329/2014
JUDGMENT
This is a suit filed by the plaintiff for the relief of permanent injunction against the defendants, restraining them or anybody on their behalf from causing obstruction for peaceful possession and enjoyment of the suit schedule properties by the plaintiff and also from causing obstruction for construction of the building over the suit schedule properties by the plaintiff.
2. In the plaint the plaintiff has shown the suit schedule properties as under: -
ITEM NO.1 The property bearing No.16, situated at Sy.No.66/1, Srigandhada Kaval Village, Yeshwanthapura Hobli, Bangalore North Taluk, presently coming within the jurisdiction of BBMP along with 8 squares of RCC roofed built house along with all basic amenities.
ITEM NO.2 The property bearing No.15, situated at Sy.No.66/1, Srigandhada Kaval Village, Yeshwanthapura Hobli, Bangalore North 4 O.S.No.329/2014 Taluk, presently coming within the jurisdiction of BBMP along with 8 squares of RCC roofed built house along with all basic amenities.
3. The brief facts of the plaintiff's case are as under: -
The plaintiff is the absolute owner and in peaceful possession of the suit schedule properties. Originally one Sri.Thimmaiah was the owner of Sy.No.66/1 to the extent of 3 acre 27 guntas of Srigandhada Kaval. During the lifetime of Sri.Thimmaiah, he along with his children -
Sri.Channappa (defendant No.2), Sri.Govindapapa, Sri.Huchappa and Sri.Rangaswamy entered into an unregistered Panchayath Parikath on 31.03.1990, wherein the property measuring East to West: 320 and North to South: 315 feet in Sy.No.66/1 with other properties came to the share of Sri.Rangaswamy. In the said property at Sy.No.66/1, Sri.Rangaswamy has formed sites and Item No.1 and 2 of the schedule properties have been formed by Sri.Rangaswamy. Sri.Channappa (defendant No.2), Sri.Govindappa and Sri.Rangaswamy have executed GPA and affidavit dated 19.06.1993 in favour of one Sri.C.K.Nanjundaswamy to deal with in respect of Item No.1 5 O.S.No.329/2014 of the suit schedule property. Thereafter, Sri.Channappa (defendant No.2) and Sri.Rangaswamy have executed GPA and affidavit dated 01.04.1994 in favour of Sri.C.K.Nanjundaswamy to deal with in respect of Item No.2 of the schedule property. Thereafter, Sri.C.K.Nanjundaswamy being the Power of Attorney Holder has executed 3 Sale Deeds dated 11.01.2013 and 22.11.2013 in favour of the plaintiff in respect of Item No.1 and 2 of the schedule properties. Thereafter, plaintiff has got the katha of the suit properties in her name and she has paid the tax to the Government. From the date of purchase the plaintiff is in possession of the suit properties. The plaintiff's husband - Sri.C.K.Nanjundaswamy has constructed six small houses in the suit schedule properties. The plaintiff along with her family residing in the suit schedule properties and some portions has been let out to the tenants. Hence, the plaintiff is in possession of the suit properties from 2001. On 02.02.2013 and 15.02.2013, the defendants without having any right, title or interest obstructed for enjoyment of the suit properties by the plaintiff. Hence, complaint has been filed by the plaintiff. 6 O.S.No.329/2014 But the police have directed to approach the Civil Court. Hence, the plaintiff is constrained to file the suit for injunction.
4. After registering the suit, summons were issued to the defendants. The defendants appeared through their counsels. The defendant No.1 and defendants 2 to 4 have filed separate written statement. In the written statement of defendant No.1, defendant No.1 has denied the allegations of the plaint. The defendant No.1 contends that he has purchased the suit schedule properties from defendants 2 to 4 under a registered Sale Deed dated 07.07.2012 and since then, he is in possession and enjoyment of the suit schedule properties. The revenue documents are transferred in the name of this defendant and he is paying taxes in respect of suit schedule properties. The plaintiff contends that GPA executed by Sri.Channappa (defendant No.2) and his brother Sri.Huchappa on 19.06.1993 has been cancelled orally by them as said Sri.C.K.Nanjundaswamy acted detrimental to the interest of the owners. Thereafter, they have got partitioned the joint family properties between them under 7 O.S.No.329/2014 registered Partition Deed dated 18.06.2003. In the said partition, suit schedule properties have been fallen to the share of Sri.Channappa (defendant No.2) and his sons and subsequently, they have executed a registered Sale Deed dated 07.07.2012 in favour of defendant No.1 in respect of the suit schedule properties. The defendant No.1 is the owner and in possession of the suit schedule properties. Sri.C.K.Nanjundaswamy in whose name GPA has been executed by Sri.Channappa and Sri.Huchappa, has been cancelled orally and inspite of that, Sri.C.K.Nanjundaswamy has executed Sale Deeds in favour of his wife - plaintiff. The said Sri.C.K.Nanjundaswamy has no right to execute the Sale Deeds. On the basis of the said Sale Deeds, the plaintiff would not get any right over the suit schedule properties. The defendant No.1 has filed a suit in O.S.No.5567/2013 against Sri.C.K.Nanjundaswamy and others, which is pending. By suppressing that fact, the plaintiff has filed the present suit to make wrongful gain. The plaintiff is not in lawful possession of the suit properties on the date of the suit. There is no cause of action to file 8 O.S.No.329/2014 the suit. Hence, on these grounds it is prayed to dismiss the suit with costs.
5. Similarly, the defendants 2 to 4 have filed separate written statement, wherein they have contended that Sri.Channappa (defendant No.2) and Sri.Huchappa are brothers and they have executed GPA in favour of Sri.C.K.Nanjundaswamy. But, in the year 2002 itself the said GPA has been cancelled orally as Sri.C.K.Nanjundaswamy acted detrimental to their interest. Thereafter, in the year 2003, defendant No.2 and Sri.Huchappa have partitioned the joint family properties, wherein the suit properties have fallen to the share of defendant No.2 and his sons i.e., defendants 3 and 4. Thereafter, defendant No.2 to and his sons i.e., defendants 3 and 4, have sold the suit properties to defendant No.1 under a registered Sale Deed dated 07.07.2012. Hence, the plaintiff is not having any title or possession over the suit property. There is no cause of action to file the suit. Hence, on these grounds it is prayed to dismiss the suit with costs.
9 O.S.No.329/2014
6. On the basis of pleadings above, the issues arisen for consideration are as under:-
ISSUES
1. Whether the plaintiff proves her lawful possession over the suit schedule properties as on the date of the suit?
2. Whether the plaintiff proves the alleged interference of the defendants?
3. Whether the plaintiff is entitled for the relief of permanent injunction?
4. What order or decree?
7. To prove the case of the plaintiff, the plaintiff examined hermself as PW-1 and got marked Ex.P1 to P37. On the contrary, the defendants examined defendant No.1 as DW-1, defendant No.2 as DW-2 and defendant No.4 as DW-3 and got marked Ex.D1 to D22.
8. I have heard the arguments.
9. My findings on the above said issues are as follows:-
Issue No.1:- In the negative.
10 O.S.No.329/2014
Issue No.2:- In the negative.
Issue No.3:- In the negative.
Issue No.4:- As per final order.
for the following:-
REASONS
10. Issue No.1 to 3 :-
As these issues are interlinked, I answer them together. As per the contention of the plaintiff, in respect of Site No.15 and 16 her husband has executed Sale Deeds in her favour. GPAs have been executed by Sri.Channappa and his brothers and on the basis of the GPAs husband of the plaintiff has executed the Sale Deeds in favour of the plaintiff. Hence, mode of title acquired by the plaintiff is the GPAs and Sale Deeds. The Sale Deeds are produced at Ex.P1 to P3. Ex.P1 and P2 are on the same day, wherein portion of site No.15 and Site No.16 have sold to the plaintiff. Further, as per Ex.P3 portion of site No.15 has been sold to the plaintiff. Hence, it is the mode of acquisition of title by the plaintiff.
11. The plaintiff in her evidence has reiterated the averments of the plaint. In the cross-examination of PW-1, 11 O.S.No.329/2014 the learned counsel for the defendants tried to elicit that GPA is not executed by Sri.Channappa and others in favour of Sri.C.K.Nanjundaswamy. In the written statement, the defendants have taken up the contention that the GPA executed by Sri.Channappa and others has been revoked orally by them. Hence, on the date of execution of Sale Deeds GPA was not in existence. Hence, on the basis of which the Sale Deeds would not create any title to the plaintiff to the suit properties. In the cross-examination of PW-1, nothing is suggested to PW-1 in respect of such act of revocation of GPA. Anyhow, the plaintiff based her title on the basis of GPAs and also on the basis of Sale Deeds executed by her husband. GPAs are not marked in this case. In the cross-examination, it is suggested that Sri.Channappa himself has constructed the building in the suit properties. The plaintiff has not produced any documents to show that after purchasing the sites, the plaintiff has constructed the building over the suit properties. The plaintiff has not produced any documents to show construction of the house. Anyhow, as per averments of the Sale Deeds, buildings were already 12 O.S.No.329/2014 constructed in the sites. The suit is for bare injunction, as such, duty is cast on the plaintiff to show that she is in lawful possession of the suit properties on the date of the suit.
12. The plaintiff has produced encumbrance certificate, tax paid receipt and Katha Certificate. They are standing in the name of the plaintiffs. The plaintiff has also produced electricity bills and receipts and water bills and receipts. The defendants have also produced some of the electricity bills and receipts and water bills and receipts. The plaintiff has claimed injunction in respect of entire extent of Site No.15 and 16 shown in the schedule. No doubt, in this regard, the plaintiff has produced the title deeds and the evidence has been given by the plaintiff in the same way. Except GPAs executed by Sri.Channappa and others, the plaintiff has produced other documents to show her title over the suit properties.
13. The defendants have taken up the contention that in Site No.15 and 16 some portion of the property has been sold by the defendants 2 to 4 in favour of defendant 13 O.S.No.329/2014 No.1. In this regard, Sale Deed is produced at Ex.D1. The Sale Deed at Ex.D1 is of the year 2012. As per the Sale Deed, portion of Site No.15 and 16 have been sold by the defendants 2 to 4 to defendant No.1. The plaintiff has sought for injunction in respect of entire extent of Site No.15 and 16. But as per the contentions of the defendants, some portion of Site No.15 and 16 is sold by the defendants 2 to 4 to defendant No.1. The defendants have also produced encumbrance certificates, tax paid receipts, to establish possession of defendant No.1 over the said sold out portion. The electricity bills and receipts have been produced to show the possession of defendant No.1 over the said portion of the property. Apart from that, the defendants have produced Ex.D22, which is the Partition Deed effected between Sri.Channappa and Sri.Huchappa. Hence, these documents go to show that defendant No.1 is in possession of portion of the suit properties. The defendants have given evidence in this fashion.
14. The defendants have examined 3 witnesses. DW-1 is defendant No.1 and he has reiterated the averments of the written statement. He contends that he 14 O.S.No.329/2014 has purchased the suit properties from the defendants 2 to 4 under a registered Sale Deed. Portion of site No.15 and 16 have been purchased by him under a registered Sale Deed. This witness is cross-examined at length, wherein the learned counsel for the plaintiff tried to elicit that the plaintiff is the owner of entire extent of suit properties. But he denied this aspect. As per his contention, portion of suit properties are in possession of defendant No.1. The suggestions have put forth that the plaintiff has purchased the suit properties under the Sale Deeds from Sri.C.K.Nanjundaswamy and he has got power to execute the Sale Deeds on the basis of GPAs. But the said GPAs are not marked in this case. The Sale Deeds have been marked, but they are subsequent to the Sale Deed of defendant No.1. In the cross-examination of DW-1, he admits that in some portion of the suit properties the plaintiff is residing by constructing the building. Further, it is elicited that buildings were constructed in the suit properties by the land owners. It is elicited that defendant No.1 has filed 2 suits against husband of the plaintiff and others in O.S.No.5567/2013 and 1357/2013. Further, it is 15 O.S.No.329/2014 elicited that those suits have been dismissed for non- prosecution. The plaintiff has produced the order sheet and plaint copies of the said suits at Ex.P27 to P30. These documents disclose regarding filing of the suits by defendant No.1 for injunction and those suits have been dismissed for non-prosecution. It is pertinent to note that they have not decided on merits. More over, those suits are for bare injunction. Merely because the suits filed by defendant No.1 have been dismissed, does not mean that the plaintiff would get right over the suit properties to seek the relief of injunction. Hence, those aspects have been elicited in the cross-examination of defendant No.1. The cross-examination of DW-1 discloses that GPA has been executed in the name of Sri.C.K.Nanjundaswamy, but that GPA has been cancelled. He contends that GPA has been cancelled orally. It is suggested by the learned counsel for the plaintiff that GPA cannot be cancelled orally. The Sale Deed has been executed in the name of defendant No.1 in the year 2012 itself by the original owners of the suit properties. When that being the case, even if there were GPAs, on the basis of the same, the GPA Holder is not 16 O.S.No.329/2014 expected to deal with regard to the properties, but GPAs in favour of Sri.C.K.Nanjundaswamy have been acted upon in the year 2013, that too in the name of his wife the Sale Deeds have been effected. Hence, the right has been lost by the original owners either to execute GPA or to execute Sale Deed as they have executed the Sale Deed in the year 2012 to defendant No.1. Under these circumstances, defendant No.1 has become the owner of portion of suit properties and he states that he is in possession of the same also. The suit is for bare injunction. The plaintiff has to show that to the entire extent of the suit properties she is in possession and having title to the properties. Considering the evidence of DW-1, the plaintiff has failed to establish the possession and title over the entire extent of suit properties.
15. DW-2 is one of the owners. He states in respect of Sale Deed executed by him and his sons in favour of defendant No.1. He is also cross-examined at length, but nothing is elicited to show that they have not executed GPA to Sri.C.K.Nanjundaswamy. Anyway, execution of GPA is not much denial. But it is contended that said GPA has 17 O.S.No.329/2014 been cancelled. In respect of cancellation of GPA there is no evidence. When GPA is executed, that does not mean that the original owners will loose right over the properties. The GPA is to do certain work. That does not mean that the original owners are not expected to do work by themselves. Considering this aspect, in the present case the original owners have right to execute Sale Deed to defendant No.1, when that being the case, GPA would not be operated. GPA Holder will loose right to execute the Sale Deeds when the original owners themselves have executed Sale Deed. Hence, contention of the plaintiff that on the basis of the GPAs Sale Deeds have been executed in the name of the plaintiff would not create any right to the plaintiff in the suit properties.
16. The defendants have examined one more witness i.e., DW-3, who is defendant No.4. He is also cross- examined at length. DW-3 states regarding execution of Sale Deed in the name of defendant No.1. He shows his ignorance regarding execution of GPA and also cancellation of GPA. Anyhow, GPA would not create any right over the properties. The Sale Deed has been effected in the name of 18 O.S.No.329/2014 defendant No.1 and it is stated that defendant No.1 is in possession of portion of suit properties. No doubt, in the evidence of DW-3 it is elicited that the plaintiff is in possession of the suit properties, but the documents disclose regarding possession of the plaintiff to the portion of the suit properties. In respect of other portion, defendant No.1 is in possession of the properties.
17. From the evidence of the plaintiff and defendants, there is Sale Deed in the name of defendant No.1. The partition was effected among some of the children of Sri.Thimmaiah as per Ex.D22. On the basis of the same, Sale Deed has been effected as per Ex.D1 to defendant No.1. The learned counsel for the plaintiff vehemently argued that the executants of Ex.D1 would not have right to execute the same in favour of defendant No.1. Sri.Channappa and his sons have executed Ex.D1. As per Ex.D22, they have got share in the suit properties. It is contended that for this Partition Deed all the sons of Sri.Thimmaiah have not sighed the documents and as such, they will not create any title to the defendants 2 to 4 to execute the Sale Deed in favour of defendant No.1. It is 19 O.S.No.329/2014 contended that Sale Deed in the name of defendant No.1 is not binding on the plaintiff. It is pertinent to note that suit is for bare injunction. The plaintiff has not sought for any declaration regarding her title. In respect of same properties, there are 2 documents. One is Ex.P1 to P3 and Ex.D1 is another document. Ex.D1 is in respect of portion of the suit properties. The plaintiff has sought for injunction regarding entire extent of the suit properties. In the absence of any declaration, the court is not expected to go into title of the plaintiff. When the suit is for bare injunction, the plaintiff should be assertive regarding her title. But that itself is not clear in this case. On the basis of the allegations made by the defendants, the title of the plaintiff is under dispute. The plaintiff has filed the suit for bare injunction. The Sale Deeds of the plaintiff are of the year 2013 and Sale Deed in respect of defendant No.1 i.e., Ex.D1 is of the year 2012. It is admitted that Sri.Channappa and others were owners of the suit properties, when that being the case, whether title passed to defendant No.1 or plaintiff is under dispute. When title is under dispute, the plaintiff is ought to have file the suit for 20 O.S.No.329/2014 declaration. In the decision reported in 2008 (4) Supreme Court Cases page 594 in the case of Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRS. and others, the Hon'ble Supreme Court has held that:-
(a) Where a cloud is raised over the 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 possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession it is sufficient to sue for an injunction simpliciter.
Further, the Hon'ble Supreme Court further held that:-
(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 case where de jure possession has to be established on the basis of title to the property, as in the case of vacant 21 O.S.No.329/2014 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.
Further, the Hon'ble Supreme Court has held that:-
(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).
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.
Further, it has been held that:-
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.
22 O.S.No.329/2014The principles laid down by the Hon'ble Supreme Court in the above decision are well applicable to the facts of the present case. In view of the aforesaid decision, the plaintiff ought to have filed the suit for declaration claiming her title to the suit properties. In the present case husband of the plaintiff has taken GPAs and he himself has executed Sale Deeds in favour of his wife. When husband has executed Sale Deeds to his wife, it gives suspicion in respect of genuinuity of the transaction. Considering the circumstances, suit of the plaintiff for bare injunction is not sustainable in view of the aforesaid decision.
18. Under these circumstances, on the basis of oral and documentary evidence, the plaintiff has not established her title to the entire extent of suit properties. The plaintiff has failed to establish that she is in possession of entire extent of the suit properties. When the plaintiff has not established her title and possession, the question of interference does not arise. No doubt, in the evidence PW-1 it is stated that defendants have interfered with the possession of the properties by the plaintiff. In this regard complaints have also filed by he plaintiff. But that itself is 23 O.S.No.329/2014 not sufficient to grant the relief of injunction. First of all, the plaintiff has to establish her lawful possession over the suit properties, then the question of interference arise. When that being the case, when title and possession are not established, the plaintiff is not entitled to seek the relief of injunction. Accordingly, I answer Issue No.1 to 3 in the negative.
19. Issue No.4:- In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 11th day of December 2015) (LEKKADAPPA JAMBIGI) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.24 O.S.No.329/2014
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Smt.Jayalakshmamma
(b) Defendants' side:
DW.1 - Sri.B.Tilak DW.2 - Sri.T.Chikkanna DW.3 - Sri.C.Jagadeesh II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Original registered Sale Deed
dated 11.01.2013
Ex.P2 : Original registered Sale Deed
dated 11.01.2013
Ex.P3 : Original registered Sale Deed
dated 22.11.2013
Ex.P4 : Encumbrance Certificate
Ex.P5 to 15 : Tax Paid Receipts
Ex.P16 to 18 : 'B' Katha
Ex.P19 : Electricity Bill
Ex.P20 : Cash Bill
Ex.P21 : Electricity Bills
Ex.P22 to 24 : Water Bills & Receipt
Ex.P25 : FIR with copy of Police Complaint
Ex.P26 : Acknowledgement
Ex.P27 : Certified copy of Order Sheet in
O.S.No.1357/2013
Ex.P28 : Certified copy of Plaint Sheet in
O.S.No.1357/2013
Ex.P29 : Certified copy of Order Sheet in
O.S.No.5567/2013
Ex.P30 : Certified copy of Plaint in
O.S.No.5567/2013
25 O.S.No.329/2014
Ex.P31 to 37 : Photographs
(b) Defendants' side:
Ex.D1 : Certified copy of the Sale Deed
dated 07.07.2012
Ex.D2 : Encumbrance Certificate
Ex.D3 & 4 : Tax Paid Receipts
Ex.D5 to 9 : Police Complaints
Ex.D10 to 15 : Photos with CD
Ex.D16 : 9 Electricity Bills
Ex.D17 to 21 : 4 Photos with CD
Ex.D22 : Partition Deed dated 20.05.2003
42nd ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE.
26 O.S.No.329/2014
(Judgement pronounced in the open
Court and order portion of the same
is extracted as under)
ORDER
Suit of the plaintiff is dismissed.
No order as to costs.
Draw decree accordingly.
(LEKKADAPPA JAMBIGI)
nd
42 Addl.CC& SJ, Bangalore.