Bangalore District Court
Sri.M.L.Shankar vs Sri.N.Nagaraju on 17 December, 2016
IN THE COURT OF THE XXXI ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-14)
PRESENT:
Sri G.S.REVANKAR, B.Com., LL.B. (Spl.),
XXXI ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
DATED THIS THE 17th DAY OF DECEMBER 2016
O.S.No.4038/2015
Plaintiff/s: Sri.M.L.Shankar,
S/o. Late M.S.Lingegowda,
Aged about 91 years,
R/at Vasanthapura Village,
Doddakallasandra Post,
Uttarahalli Hobli, Bengaluru South
Taluk, Bengaluru-560 062.
(By Sri.A.Chandrachud, Adv.)
/VS/
Defendant/s: Sri.N.Nagaraju,
S/o. Narayanappa,
Aged about 56 years,
R/at Vasanthapura Village,
Subramanyapura Post,
Uttarahalli Hobli, Bengaluru South
Taluk, Bengaluru-560 061.
(By Sri.V.Vijayashekara Gowda, Adv.)
Date of Institution of the : 29.04.2015.
suit
Nature of suit : Injunction suit.
2 O.S.No.4038/2015
Date of commencement of : 09.12.2015.
recording of evidence.
Date on which Judgment : 17.12.2016.
was pronounced.
Total Duration. : Days Months Year
18 07 01
***
JUDGMENT
The plaintiff has filed this suit for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment, trespassing and encroaching upon the suit schedule property.
2. The facts of the case are as follows:-
a) The plaintiff has contended that, his grandfather had purchased the entire Jodi Inam Vasanthapura Village from Sri.Lakshmana Rao in the year 1916 under the sale deed dated 10.09.1916. The plaintiff has further contended that, his father has got the said Jodi Inam Vasanthapura Village under the partition/settlement in the year 1917 under the registered settlement deed dated 03.11.1917. The plaintiff has further contended that, his father was the Jodi 3 O.S.No.4038/2015 Inamdar Vasanthapura Village and all the Inam lands came to be vested with State Government under the provisions of Inam Abolition Act, 1954, which came into force from 01.02.1959. The plaintiff has further contended that, his father filed an application under the said Act for confirmation of occupancy rights over the Inam lands, which came to be allowed. The plaintiff has further contended that, after vesting of Inam lands, part of land bearing Old Sy.Nos.1 and 9 were came to be included in the extended gramatana as per the survey sketch prepared by the Survey Department during 1962. As per the survey sketch, the father of the plaintiff became the owner of 4 Acres 05 Guntas of land, which is extended gramatana out of old Sy.Nos.1 and 9.
The plaintiff has further contended that, his father was in possession and enjoyment of the said extent of 4 Acres 05 Guntas from 1917 till his death.
b) The plaintiff has further contended that, after the death of his father, he and his brothers filed an application for effecting the Katha and the Taluk Surveyor prepared the sketch as per the order of the ADLR dated 11.01.1991 to find out the extent of extended gramatana in respect of Sy.Nos.1 4 O.S.No.4038/2015 and 9 referring to old village map before the date of vesting of the village, prepared in the year 1876 and the village map prepared after final cadastral survey and settlement in the year 1962. The plaintiff has further contended that, on 11.01.1991, a sketch was prepared in this regard. The plaintiff has further contended that, since the Village Secretary of Vasanthapura Village did not effect the katha, an appeal was preferred in R.A.No.59/1991-92 and R.A.No.60/1991-92 and on 22.02.1999, the Assistant Commissioner disposed of the above appeals with a liberty to approach the proper Forum to get the khatha of the land.
c) The plaintiff has further contended that, he and his brothers filed an application before the Assistant Director of Land Records seeking direction for effecting khatha in respect of 4 Acres 05 Guntas as per the sketch prepared by the Taluk Surveyor. On 13.11.2001, the Assistant Director of Land Records passed an order in No.113/2001-02 directing the Village Secretary, Subramanyapura Group Village Panchayath to effect the Khatha. The plaintiff has further contended that, in pursuance of the order dated 13.11.2001, Subramanyapura Group Village Panchayath has made the 5 O.S.No.4038/2015 khatha on 17.12.2002. Thereafter, the assessment was made by the Subramanyapura Group Village Panchayath for total extent of 1,79,685 sq.ft., which in other words to an extent of 4 Acres 05 Guntas in the name of the plaintiff and others.
d) The plaintiff has further contended that, he and his brothers have been in possession of an extent of 1,79,685 sq. ft. It is also contended that, the plaintiff has been in possession and enjoyment of 63,162 sq. ft., which is carried over to this day. The plaintiff has also contended that, the Subramanyapura Group Village Panchayath has passed an order of mutation in M.R.No.51/2003-04. The plaintiff has further contended that, he is the absolute owner of the property bearing Khatha No.1111/1/1176 and he is in lawful possession of the said property. The plaintiff has further contended that, he has applied for grant of license to the Village Panchayath for construction of Chowltry in the revered memory of his parents Sri.M.S.Lingegowda and Smt.Sharadamma and for sanction of plan. The plaintiff has also contended that, the Village Panchayath Officer conducted spot inspection and granted license on 6 O.S.No.4038/2015 13.02.2006. The plaintiff has also contended that, the Panchayath has collected Rs.18,000/- towards betterment charges and addition of Rs.2,000/- towards other charges and the same is paid on 13.02.2006. The plaintiff has further contended that, now the property comes within the limits of BBMP w.e.f.2008-09 and the BBMP has collected the taxes.
e) The plaintiff has further contended that, the defendant has no manner of right, title or interest over the suit schedule property. The plaintiff has further contended that, the defendant is making hectic efforts to interfere with his peaceful possession and enjoyment of the property and as such, he has approached the jurisdictional Police for protection, but the Police refused to give Police protection since the dispute is civil in nature. The plaintiff has further contended that, the defendant is totally stranger to the schedule property and making hectic attempts to interfere with the peaceful possession and enjoyment of the property. The plaintiff has also contended that, the defendant is a powerful person in the locality having man and material at his command will not hesitate to take law into his hands. 7 O.S.No.4038/2015 The plaintiff has also contended that, the cause of action arose in the month of third week of April. The defendant and his supporters tried to interfere with the peaceful possession and enjoyment of the suit schedule property. On these grounds, the plaintiff has filed this suit.
3. a) The defendant has filed his written statement contending that, the suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed. The defendant has contended that, he is not aware about the purchase of the entire Jodi Inam Vasanthapura Village by the grand father of the plaintiff. The defendant has also contended that, he is not within the knowledge that, the father of the plaintiff has got the said Jodi Inam Vasanthapura Village under the partition/settlement in the year 1917. The defendant has denied that, the plaintiff's father became the owner of 4 Acres 05 Guntas of land, which is extended gramatana and he was in possession and enjoyment of the said extent till his death. The defendant has contended that, the plaintiff colluding with the Revenue Officer, got entered his name by taking advantage of the order passed by the Assistant Director of Land Records, 8 O.S.No.4038/2015 though the said order has been set aside by the Deputy Director of Land Records, Bengaluru Urban in Appeal No.18/09-10.
b) The defendant has denied that, the plaintiff is the absolute owner of the property bearing No.1111/1/1176 and he is in possession of the said property. The defendant has contended that, there is no cause of action to file the suit. The defendant has contended that, originally, Vasanthpura Village was an Inam Village and the then Government of Mysore granted the entire Village in favour of Sri.Venkata Bhatta, Sri.Subba Bhatta and Sri.Rama Bhatta, who were the original owners, who in turn sold the entire village in favour of one Sri.Lakshman Rao under the sale deed dated 20.12.1913. In turn, said Sri.Lakshman Rao sold the entire village in favour of Sri.M.L.Shame Gowda. The defendant has further contended that, Sri.M.L.Shame Gowda and his brothers entered into family partition dated 31.01.1917, the entire Jodi Inam Vasanthapura Village came to the share of Sri.M.S.Linge Gowda. The defendant has further contended that, all the survey numbers of Vasanthapura being the Inam land was vested with the State Government under the Inams 9 O.S.No.4038/2015 Abolition Act, 1954 and the then part of the land bearing old Sy.Nos.1 and 9 of Vasanthapura Village were came to be included in the extended Gramatana. Out of the land bearing Sy.Nos.1 and 9 of Vasanthpura Village, measuring 4 Acres 05 Guntas of land was included in the extended gramatana. The defendant has further contended that, the father of the plaintiff made an application for grant of occupancy right in respect of Sy.Nos.1 and 9 and the Government by its order dated 07.05.1965 rejected the claim of the father of the plaintiff.
c) The defendant has further contended that, the plaintiff and his brothers preferred an appeal under Sec.136(2) of the Karnataka Land Revenue Act with regard to transfer of khatha in appeal No.RA.No.59 and R.A.No.60/1991-92 before the Assistant Commissioner, Bengaluru South Sub-Division. The Hon'ble Tribunal by its order dated 22.02.1999 disposed the appeal as not maintainable. Aggrieved by the order of the Assistant Commissioner, the plaintiff and his brothers preferred an appeal in No.113/2002-03 before the Assistant Director of Land Records. The Assistant Director of Land Records 10 O.S.No.4038/2015 though have no authority, had passed its order dated 13.11.2001, allowed the appeal. Aggrieved by the said order, the villagers of Vasanthapura Village preferred an appeal No.18/09-10 before the Deputy Director of Land Records, Bengaluru Urban and after hearing the parties, the said appeal was allowed and set aside the order passed by the Assistant Director of Land Records.
d) The defendant has contended that, towards eastern side of Gramatana, the land bearing Sy.No.19 of Vasanthapura Village is situated measuring to an extent of 3 Acres 15 Guntas belongs to Sri.M.S.Lingegowda. During the year 1989, the BDA had acquired the land for forming BSK 5th Stage Layout, but no award passed by the BDA. After the death of Sri.Linge Gowda, his children entered into an oral partition among the joint family properties. The land bearing Sy.No.29 fell to the share of Sri.M.L.Ramachandre Gowda and in turn, he converted the said land to an extent of 1 Acre 3 Guntas vide conversion order dated 03.06.1993. Sri.M.L.Ramachandra Gowda in turn executed the General Power of Attorney in favour of one Sri.Sheshmal Jain on 26.05.1999. On the strength of the General Power of 11 O.S.No.4038/2015 Attorney, said Sri.Sheshamal Jain has executed the sale deed dated 18.02.2006 in favour of the defendant. Since, from the date of sale deed, the defendant is in possession and enjoyment of 30 Guntas of land bounded by East by sites formed in Sy.No.19, West by Gramatana and Subramanyapura Main Road, North by land bearing Sy.No.18 and south by Subramanyapura Main Road and land bearing Sy.No.20.
e) The defendant has further contended that, during the year 2006, the plaintiff and his children started interference with his possession and as such, he has filed O.S.No.4195/2006. The defendant has further contended that, the said suit came to be decreed. The defendant has further contended that, on 5.5.2010, BDA had started interference with his property, so, he filed W.P.No.19792/2010 challenging the notification of the BDA. The defendant has further contended that, the Hon'ble High Court of Karnataka allowed the writ petition and quashed the acquisition proceedings. Aggrieved by the order of the Single Bench, the BDA had preferred a writ appeal in 12 O.S.No.4038/2015 W.A.No.662/2012, the Division Bench of the Hon'ble High Court of Karnataka dismissed the writ appeal.
f) The defendant has further contended that, the plaintiff had also filed false suit for injunction against the BDA in respect of the present suit schedule property in O.S.No.8525/2010 and the schedule shown in the said suit is East by Sy.No.19, West by Road formed by the plaintiff out of the remaining extent of the same property, North by remaining portion of the same property and South by Vasanthapura Main Road. But in the present suit, the schedule and the extent shown by the plaintiff are entirely different. The defendant has further contended that, the plaintiff taking advantage of the illegal entries, had executed the different sale deeds in favour of the third parties, who are innocents. The defendant has contended that, as per the survey sketch prepared by the Survey Department and the statements made in the earlier proceedings towards the West of the Survey No.19 as per the say of the plaintiff in O.S.No.8525/2010, there exist a Road formed in Junjur No.1111/1/1176 by BBMP, after the said road, there exist a property, which fall to the share of the plaintiff's brother 13 O.S.No.4038/2015 Sri.Ramachandre Gowda. After the said property, the alleged suit schedule property is situated. The defendant has contended that, at no point of time, the plaintiff is in possession of the suit schedule property. On the other hand, he is in possession of the land bearing Sy.No.19 of Vasanthapura Village to an extent of 30 guntas by putting up the compound and retaining wall.
g) The defendant has contended that, when the title of the defendant is in dispute, a suit for bare injunction is not maintainable. The defendant has further contended that, the plaintiff while filing the present suit, has misrepresented the true facts and got included the property belonging to the defendant bearing Sy.No.19 measuring 30 Guntas purchased by him under the sale deed dated 18.02.2006 from Sri.Ramachandre Gowda. The defendant has further contended that, the schedule property is nothing but the suit schedule property, which is the subject matter of O.S.No.4195/06, which is decreed on 19.03.2015, in respect of which, the plaintiff has filed an appeal before the Hon'ble High Court of Karnataka in RFA No.507/2015, which is pending for consideration. The defendant has further 14 O.S.No.4038/2015 contended that, the plaintiff who claims to be the owner of the suit schedule property, which was totally measuring 63162 sq.ft. has already been sold by him in favour of the third parties under the registered sale deeds and in the middle of the said land, there exists Road covers more than 9000 sq.ft. and that no property is available to the plaintiff in the said Khaneshumari number, which less the suit schedule property. On these grounds, the defendant has prayed for dismissal of the suit.
4. Based on the above pleadings, the following issues have been framed:-
1) Whether the plaintiff proves that, he is in lawful possession of the suit schedule property as on the date of filing the suit?
2) Whether the plaintiff proves that, alleged obstruction caused by the defendant in the suit schedule property?
3) Whether the plaintiff is entitle for the decree as prayed for ?
4) What order or decree ?15 O.S.No.4038/2015
5. In support of the plaintiff's case, the plaintiff is examined as PW.1 and got marked Ex.P.1 to Ex.P.52. documents and closed her side. On the other hand, the defendant is examined as DW.1 and got marked Ex.D.1 to Ex.D.15 documents.
6. Heard the arguments.
7. My findings on the above issues are as follows:-
Issue No.1 : In the affirmative,
Issue No.2 : In the affirmative,
Issue Nos.3 & 4 : As per the final order,
for the following:
REASONS
8. ISSUE NO.1: The plaintiff has filed this suit for
permanent injunction restraining the defendant from
interfering with his peaceful possession and enjoyment, trespassing and encroaching upon the suit schedule property.
9. The plaintiff has contended that, his grandfather purchased the entire Jodi Inam Vasanthapura Village from Sri.Lakshmana Rao in the year 1916 under the sale deed 16 O.S.No.4038/2015 dated 10.09.1916. The plaintiff has also contended that, his father Sri.M.S.Lingegowda had got the said Jodi Inam Vasanthapura Village under the partition/settlement in the year 1917 under the registered settlement deed dated 03.11.1917. The plaintiff has further contended that, all the Inam lands came to be vested with the State Government under the provisions of Karnataka (Personal and Miscellaneous) Inam Abolition Act, 1954, which came into force from 01.02.1959 and his father has filed an application for confirmation of the occupancy rights, which came to be allowed. The plaintiff has further contended that, after vesting of Inam lands, part of land bearing Old Sy.Nos.1 and 9 were came to be included in the extended gramatana as per the survey sketch prepared by the Survey Department during 1962. It is also contended that, as per the survey sketch, the father of the plaintiff became the owner of 4 Acres 05 Guntas of land, which is extended gramatana out of old Sy.Nos.1 and 9.
10. The plaintiff has further contended that, after the death of his father, himself and his brothers have filed an application to effect the Katha and the Taluk Surveyor 17 O.S.No.4038/2015 prepared the sketch as per the order of the ADLR in C.R.No.10/1990-91 dated 11.01.1991 to find out the extent of extended gramatana in respect of Sy.Nos.1 and 9 referring to old village map before the date of vesting of the village, prepared in the year 1876 and the village map prepared after final cadastral survey and settlement in the year 1962 and accordingly, on 11.01.1991, a sketch was prepared in this regard. The plaintiff has further contended that, since the Village Secretary of Vasanthapura Village did not effect the katha, an appeal was preferred in R.A.No.59/1991-92 and R.A.No.60/1991-92. The plaintiff has further contended that, on 22.02.1999, the Assistant Commissioner disposed of the above appeals with a liberty to approach the proper Forum to get the khatha of the land.
11. The plaintiff has also contended that, he and his brothers filed an application before the Assistant Director of Land Records seeking direction for effecting khatha in respect of 4 Acres 05 Guntas as per the sketch prepared by the Taluk Surveyor. The plaintiff has also contended that, on 13.11.2001, the Assistant Director of Land Records passed an order in No.113/2001-02 directing the Village Secretary, 18 O.S.No.4038/2015 Subramanyapura Group Village Panchayath to effect the Khatha. It is also contended that, pursuant to the order dated 13.11.2001, Subramanyapura Group Village Panchayath has made the khatha in M.R.No.44/2002-03 on 17.12.2002 in the name of the plaintiff and his brothers. The plaintiff has specifically contended that, the assessment was made by the Subramanyapura Group Village Panchayath for total extent of 1,79,685 sq.ft., which in other words to an extent of 4 Acres 05 Guntas in the name of the plaintiff and others.
12. The plaintiff has contended that, he is in possession and enjoyment of 63,162 sq. ft., till now and his name has been entered in Sy.Nos.9 and 10 in the records of Panchayath. The plaintiff has further contended that, he is the absolute owner of the schedule property bearing Khatha No.1111/1/1176 and he has applied for grant of license to the Village Panchayath for construction of Chowltry in the revered memory of his parents Sri.M.S.Lingegowda and Smt.Sharadamma and for sanction of plan. The plaintiff has further contended that, the Village Panchayath Officer conducted the spot inspection and granted license on 19 O.S.No.4038/2015 13.02.2006. According to the plaintiff, the defendant is no way concerned to the suit schedule property and tried hectic attempts to interfere with his peaceful possession and enjoyment of the schedule property.
13. The defendant has disputed the title of the plaintiff and contended that, he has purchased 30 Guntas of land in Sy.No.19 under the registered sale deed dated 18.02.2006 from Sri.Ramachandre Gowda and the suit schedule property is nothing but the schedule property, which is the subject matter of O.S.No.4195/2006 filed by him, which is decreed by the trial Court by a judgment and decree dated 19.03.2015. It is an admitted fact that, the defendant has filed O.S.No.4195/26, which came to be decreed against which the plaintiff has filed an appeal before the Hon'ble High Court of Karnataka in RFA No.507/2015, which is pending for consideration.
14. Here, it is necessary to mention that, the plaintiff has furnished the description of the suit schedule property, which is bounded by East, Kalyaninagara Layout, West by Vasanthapura Main Road and Road towards Maruthi Layout, 20 O.S.No.4038/2015 North by property of Manjula and South by property of Gayathri Srinivas. The certified copy of the judgment in O.S.No.4195/2006 is marked as Ex.D.15. On perusal of Ex.D.15, it can be seen that, in O.S.No.4195/2006, the present defendant has furnished the description of the schedule property of that case, which bounded by East Sy.No.19, remaining portion (now formed sites) and B. Gadi9, West by Gramatana and Subramanyapura Main Road, North by Land bearing Sy.No.18 (Full Border) and South by Subramanyapura Main Road and land bearing Sy.No.20. The counsel for the defendant has vehemently argued that, the boundaries as stated by P.W.1 in the cross-examination differ with the boundaries of the suit schedule property, which is adverse to the plaintiff's case.
15. The counsel for the defendant has relied upon the decision reported in (2003) 2 Supreme Court Cases 330 - Pratibha Singh and another Vs Shanti Devi Prasad and another, wherein it is observed that:
"Order 7 Rule 3 C.P.C. requires where the subject- matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Such description enables the court to draw a proper decree as required by 21 O.S.No.4038/2015 Order 20 Rule 3 C.P.C. In case such property can be identified by boundaries or numbers in a record for settlement of survey, the plaint shall specify such boundaries or numbers. Having perused the revenue survey map of the entire area of RS Plot No.595 and having seen the maps annexed with the registered sale deeds of the defendant judgment- debtors we are clearly of the opinion that Sub-plots Nos.595/I and 595/II were not capable of being identified merely by boundaries nor by numbers as sub-plot numbers do not appear in records of settlement or survey. The plaintiffs ought to have filed the map of the suit property annexed with the plaint. If the plaintiffs committed an error the defendants should have objected to it promptly. The default or carelessness of the parties does not absolve the trial court of its obligation which should have, while scrutinizing the plaint, pointed out the omission on the part of the plaintiffs and should have insisted on a map of the immovable property forming the subject-matter of the suit being filed. This is the first error."
16. The counsel for the defendant has also relied upon the decision reported in ILR 2008 KAR 3500 - M.Ethiraj Vs Smt.Farida Khanum, wherein, it is held that:
"There cannot be any dispute that an admission is the best evidence against the party making it and though not conclusive, shifts the onus to the maker on the principle that what a party admits must to be true or may be reasonably presumed to be true so that until the presumption is rebutted, the fact admitted must be taken be true. An admission must be examined as a whole and not in parts. It is settled law that an admission of any party has to be read in its entirety and no statement out of context can constitute admission on any fact. The Court 22 O.S.No.4038/2015 may reject the admission if it is satisfied from other surrounding circumstances that it is untrue. The admission must be used either as a whole or not at all. It is also equally settled that the stray sentence elicited in the cross-examination could hardly be construed as admission."
17. P.W.1 in his affidavit chief-examination has reiterated the plaint averments. During the cross-examination, at page No.14 he has stated that, the property Sy.Nos.56, 57 and 17 of Vasanthapura Village were fallen to his share during the life time of his father. He has also stated that, Sy.Nos.15, 16 and 2 were fallen to the share of his elder brother Sri.M.L.Ramachandra Gowda. P.W.1 has further stated that, the extended gramatana was divided into three parts and given to himself, Sri.M.L.Ramachandra Gowda and Sri.M.L.Krishna. P.W.1 in the cross-examination unable to say the extent of land fallen to his share and to his two brothers in the extended gramatana.
18. In the cross-examination, at page No.17 P.W.1 has stated that, western portion measuring 1 Acres 18 Guntas i.e., 66132 sq. ft. of the extended gramatana was allotted to him. P.W.1 has further stated that, he has not produced any document pertaining to his land and his brothers' land with 23 O.S.No.4038/2015 its boundaries. As mentioned above, the defendant has contended that, he has purchased 30 Guntas of land in Sy.No.19.
19. P.W.1 in his cross-examination at page No.20 has admitted that, towards the eastern side of Vasanthapura extended gramatana area, there locates the limit of Bikasipura. Further, P.W.1 in the cross-examination at page No.30 has stated that, it may be true that, the said 30 Guntas of Land is situated towards western side of the built up area in Sy.No.19. It is true that, the admission of P.W.1 to some extent varies with the boundaries of the schedule property, but as per the case law referred above, the admission must be examined as a whole and not in part.
20. The counsel for the plaintiff has vehemently argued that, the brother of the plaintiff has formed the layout in Sy.No.19 and the land is not available for sale, to purchase 30 guntas of land by the defendant.
21. During the cross-examination of P.W.1, the sale agreement executed in favour of the defendant is marked as Ex.P.56 by way of confrontation. The sale deed of the 24 O.S.No.4038/2015 defendant is marked as Ex.D.9. The counsel for the plaintiff has argued that, the defendant has created the documents with an intention to grab the property. He further argued that, in case Ex.P.56 is really executed, it ought to have been referred at Ex.D.9. It is true that, Ex.D.9 does not disclose about the reference of Ex.P.56, but one thing has to be observed that, the present suit is for permanent injunction and we cannot decide the title of the parties.
22. DW.1 in the cross-examination at page No.17 has stated that, he has purchased the Sy.No.19 in the month of February 2006, but the sale agreement was executed in the year 2005. DW.1 in the cross-examination at page No.21 has stated that, he do not know whether the entire extent of 3 acres 15 guntas is converted or not. Further, he has stated that, he came to know that, 1 acre 3 guntas was converted in Sy.No.19. DW.1 in the cross-examination unable to say whether he has produced the documents about the conversion of land measuring 1 Acre 3 Guntas.
23. The defendant in his cross-examination at page No.19 has stated that, except the sale deed, he has not produced 25 O.S.No.4038/2015 any other documents to show that, he is in possession of Sy.No.19. He has also admitted that, in his cross- examination at page No.18 that, after the sale deed in the year 2006, Khatha is not effected in his name. In the cross- examination, the defendant has given some explanation that, after the sale deed, the family members of the plaintiff have filed the objections, so, khatha was not effected, but in the written statement of the defendant, this fact is totally silent.
24. DW.1 has stated that, during the year May 2010, BDA has started to interfere with his property on the ground that, his land bearing Sy.No.19 of Vasanthapura Village notified the land for formation of BSK 5th Stage, Residential Layout in the year 1989. Hence, in order to protect his property covered under the sale deed dated 18.02.2006, he has approached the Hon'ble High Court of Karnataka in W.P.No.19792/10 challenging the said notification of the BDA in respect of his property measuring 30 guntas is concerned. DW.1 has further contended that, the Hon'ble High Court of Karnataka was pleased to allow the said writ petition on 8.12.2011 and quashed the acquisition proceedings so far as his property measuring 30 Guntas in Sy.No.19. DW.1 has 26 O.S.No.4038/2015 further stated that, BDA preferred the writ appeal in W.A.No.662/2012 challenging the order in writ petition before the Division Bench of Hon'ble High Court of Karnataka and after hearing the matter, the Hon'ble Division Bench was pleased to dismiss the writ appeal and confirmed the order in writ petition No.19792/10. The certified copy of the order in W.P.No.19792/10 is marked as Ex.P.11 and the certified copy of the order in W.A.No.662/2012 is marked as Ex.D.12. Here, it is to be observed that, in writ petition as well as in writ appeal, the plaintiff is not a party.
25. As mentioned above, the present defendant has filed O.S.No.4195/06 against the plaintiff and his children. The counsel for the plaintiff has vehemently argued that, the defendant has intentionally suppressed about the writ petition and writ appeal in O.S.No.4195/2006. He further argued that, the plaintiff is totally unaware about the pendency of the writ petition and writ appeal. DW.1 in his cross-examination at page No.23 has stated that, junior counsel was attending in O.S.No.4195/06 and senior counsel was attending in the writ appeal. DW.1 has stated that, the counsel in writ appeal and O.S.No.4195/06 is the same. So, 27 O.S.No.4038/2015 I am of the view that, the explanation given by the defendant as to why he has not brought to the notice of the Court in O.S.No.4195/06 about the writ petition and writ appeal, cannot be accepted.
26. On perusal of the order in W.P.No.19792/10, it cannot be seen that, the defendant has brought to the notice of the Hon'ble High Court of Karnataka about the photographs at annexure K1 to K6 depicting the existence of massive buildings on adjoining lands. In the said writ petition, the defendant has contended that, he has accorded the approval for building plan on the land in question, but in this case, the approved building plan is in the name of the plaintiff issued by Subramanyapura Grama Panchayath.
27. The defendant has produced the copy of the survey report issued by the BDA is marked as Ex.D.10. DW.1 in his cross-examination at page No.22 has stated that, he does not know about the sketch of Sy.No.19 measuring 3 Acres 15 Guntas. DW.1 has further stated that, he does not know about the reference of land measuring 1 Acre 3 guntas as per Ex.D.10. Further, DW.1 has stated that, Ex.D.10 do not 28 O.S.No.4038/2015 disclose about the conduct of local inspection. DW.1 has also admitted that, he does not know about the mahazar, so also, varadi prepared by the concerned BDA officials pertaining to Ex.D.10. On perusal of the evidence of DW.1, it can be seen that, the defendant has not produced Ex.D.10 in O.S.No.4195/2006.
28. The counsel for the defendant has relied upon the decision reported in (1995) 1 Supreme Court Cases 198 - Ramti Devi (Smt.) Vs Union of India, wherein, it is held that:
"Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the court in the behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So the suit necessarily h as to be laid within three years from the date when the cause of action had occurred. Since the cause of action had arisen on 29-1-1947, the date on which the sale deed was executed and registered and the suit was filed on 30-7-1966, the suit is hopelessly barred by limitation."
29. The counsel for the defendant has also relied upon the decision reported in ILR 2007 KAR 339 - Sri Aralappa Vs Sri Jagannath and others, wherein, it is held that:
"In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his 29 O.S.No.4038/2015 title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property - When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable - Court below was justified in dismissing the suit as not maintainable."
30. This suit is for permanent injunction. As mentioned above, the son of the plaintiff has filed the suit separately for cancellation of the sale deed of the defendant. In this case, we cannot decide about the limitation of the suit filed by the son of the plaintiff. Whether the defendant has caused obstruction as alleged by the plaintiff will be discussed later. The plaintiff has specifically mentioned about the cause of action in his plaint. The facts involved in the above case law are differs with the facts of the present case.
31. P.W.1 in his chief-examination has stated that, he and his brother have been in possession of extent of 1 acre 79,685 sq.ft. Further, he has stated that, he is in possession and enjoyment of 63,162 sq. ft., which is carried over to this 30 O.S.No.4038/2015 day. P.W.1 has further stated that, himself and his brother have filed an application for effecting the khatha as per their respective possession before the Subramanyapura Group Village Panchayath and his name has been entered in Form No.9 and 10 in the records of the Panchayath assessing an extent of 63,162 sq.ft. for payment of the tax in his name. P.W.1 has further stated that, he is the absolute owner of the property bearing Khatha (Janjaru) No.1111/1/1176 and he is in lawful and peaceful possession of the schedule property.
32. The defendant has produced the sale deed executed by the plaintiff, which are marked as Ex.D.3 to Ex.D.6. The counsel for the defendant has vehemently argued that, P.W.1 in the cross-examination has stated that, 9,000 sq.ft. has been acquired for forming the Road. It is true that, P.W.1 in the cross-examination at page No.27 has stated that, in the portion measuring 9,000 sq.ft., public road has been formed in the extended gramatana. The defendant has not placed any records, which goes to show that, the said Road has been formed in the portion allotted to the plaintiff pertaining to the extended gramatana. On perusal of Ex.D.3 to Ex.D.6, it can be seen that, the plaintiff has executed the sale deed 31 O.S.No.4038/2015 as per Ex.D.3 to Ex.D.5, but not Ex.D.6. The measurement of the property as shown at Ex.D.3 to Ex.D.5 comes to 37,037 sq. ft. After considering Ex.D.3 to Ex.D.5 still the plaintiff retains the substantial portion.
33. Ex.P.5 is the letter by the Subramanyapura Group Village Panchayath dated 17.12.2002. Ex.P.6 is the certified copy of the M.R.No.44/2002. Ex.P.8 is the certified copy of the form No.10. Ex.P.9 is the certified copy of the M.R.No.51/2003-04 dated 19.9.2003. These documents are in favour of the plaintiff. Ex.P.10 is the certified copy of the form No.9, which goes to show that, the property measuring 63,162 sq.ft. was allotted to the plaintiff and separate number is given. Ex.P.13 to Ex.P.16 are the tax paid receipts in the name of the plaintiff.
34. P.W.1 in his evidence has stated that, he has applied for grant of licence to the Village Panchayath for construction of the Chowltry and after conducting spot inspection, the Village Panchayath has granted the licence and he has paid the betterment charge of Rs.18,000/-. Ex.P.48 is the permission granted by the Grama Panchayath to construct 32 O.S.No.4038/2015 the structure, which is in the name of the plaintiff. Ex.P.49 goes to show that, the plaintiff has paid the betterment charge of Rs.18,000/- to the Grama Panchayath. The boundaries of the suit schedule property in O.S.No.4195/06 is totally differs with the boundaries of the suit schedule property of this case. So, we cannot made applicable the decree in O.S.No.4195/06 to the present case. Considering the material on record and the discussion made here before, I am of the opinion that, the plaintiff is in possession of the suit schedule property. Hence, I answer issue No.1 in the "affirmative".
35. ISSUE No.2: The plaintiff has contended that, in the month of third week of April 2015, he came to know that, the defendant and his supporters tried to interfere with the peaceful possession and enjoyment of the schedule property by trying to illegally encroach upon by committing the criminal trespass along with his henchmen and supporters. P.W.1 in the cross-examination at page No.34 has stated that, he does not remember whether the defendant has made any attempt to dispossess from the alleged schedule property. P.W.1 in the cross-examination at page No.35 has 33 O.S.No.4038/2015 stated that, he does not know the cause of action to file the suit, but his children know that. We cannot rely the stray admissions to decide the matter. We have to consider the entire evidence and to see whether there is an obstruction as contended by the plaintiff. P.W.1 is aged about 92 years, who appeared before the Court to tender his evidence. In the plaint itself at para No.10, the plaintiff has stated that, he came to know about the obstruction caused by the defendant. In the above paras, I have observed that, the plaintiff is in possession of the suit schedule property. Based on the information, the plaintiff has filed this suit for permanent injunction. The version given by P.W.1 goes to show about the obstruction caused by the defendant. Hence, I answer issue No.2 in the "affirmative".
36. ISSUE NOS.3 & 4: In view of the reasons stated above, I proceed to pass the following, ORDER The suit is decreed with cost.
34 O.S.No.4038/2015
The defendant is hereby permanently restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
Further, the defendant is also permanently restrained from trespassing or encroaching upon the suit schedule property.
Draw the decree accordingly.
*** (Dictated to the stenographer, transcribed and typed by her, corrected, signed and then pronounced by me in the open Court on this the 17th Day of December, 2016) (G.S.REVANKAR) XXXI ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU.
ANNEXURE List of witnesses examined for plaintiff/s:
PW.1 : Sri.Shankar M.L. List of documents exhibited for plaintiff/s:
Ex.P.1 : Certified copy of the sale deed
dated 10.9.1916.
35 O.S.No.4038/2015
Ex.P.2 : Certified copy of the registered
settlement deed dated 3.11.1917.
Ex.P.3 : Certified copy of the order dated
22.2.1999 passed by the Asst.
Commissioner in R.A.No.59/91-92
and RA No.61/91-92.
Ex.P.4 : ADLR order dtd.13.11.2001.
Ex.P.5 : Letter issued by the
SUbramanyapura Grama
Panchayath dtd.17.12.02.
Ex.P.6 : Certified copy of the MR No.44/02.
Ex.P.7 : Certified copy of the Form No.9.
Ex.P.8 : Certified copy of Form No.10.
Ex.P.9 : Certified copy of the MR
No.51/2003-04 dtd.19.9.2003.
Ex.P.10 : Certified copy of the Form No.9.
Ex.P.11 : Certified copy of the Form No.10.
Ex.P.12 : Sanction plan.
Ex.P.13 to P.16 : Tax paid receipts.
Ex.P.17 to : Photos.
Ex.P.46
Ex.P.47 : CD.
Ex.P.48 : Certified copy of the licence.
Ex.P.49 & P.50 : Tax paid receipts.
Ex.P.51 : Katha certificate.
Ex.P.52 : Katha Extract.
List of witnesses examined for defendant/s:
DW.1 : N.Nagaraju.
36 O.S.No.4038/2015List of documents exhibited for defendant/s:
Ex.D.1 : CC of the order sheet in
O.S.No.10387/15.
Ex.D.2 : CC of the plaint in O.S.10387/15.
Ex.D.3 : CC of the sale deed dated
12.11.2003.
Ex.D.4 : Another sale deed dated 12.11.2003.
Ex.D.5 : Another sale deed dtd.12.11.2003.
Ex.D.6 : CC of the absolute sale deed
dtd.18.3.2005.
Ex.D.7 & 8 : Photos.
Ex.D.9 : Certified copy of the sale deed dated
24.1.2006 (18.2.2006).
Ex.D.10 : Certified copy of the survey report
issued by BDA.
Ex.D.11 : Certified copy of the order in
W.P.No.19792/10 dtd.8.12.2011.
Ex.D.12 : Certified copy of the order in
W.A.No.662/12 dtd.4.2.2015.
Ex.D.13 : Certified copy of the deposition of
DW.1/M.S.Shanker in O.S.6183/97.
Ex.D.14 : Certified copy of the judgment and
decree in O.S.No.6183/97.
Ex.D.15 : Certified copy of the judgment and
decree in O.S.No.4195/06.
(G.S.REVANKAR)
XXXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.