Bangalore District Court
Sri.D.Bhakthavatsala vs Sri. D. Devaraja on 25 July, 2016
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (C.C.H.No.25).
Dated: This the 25th day of July 2016
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No:4975/2011
Plaintiff Sri.D.Bhakthavatsala, S/o Late Dharma
Naidu, Aged about 49 years,
Residing at No.146/A, Ground floor,
5th Main Road, 4th Block,
Rajajinagar, Bengaluru-560010.
(By Sri. A.V.Gangadharappa, Advocate)
V/S
Defendants 1 Sri. D. Devaraja, S/o Late Dharma Naidu,
Aged about 51 years,
Residing at No.146/A, Ground floor,
5th Main Road, 4th Block,
Rajajinagar, Bengaluru-560010.
2 Sri. D.Lokesha, S/o Late Dharma Naidu,
Aged about 33 years,
Residing at No.146/A, First floor,
5th Main Road, 4th Block,
Rajajinagar, Bengaluru-560010.
(D1: By Sri. M.M.K., Advocate)
(D2: By Sri. R.V.L., Advocate)
Date of Institution 13.07.2011
Nature of Suit Mandatory injunction,
recovery of possession,
2 O.S.No.4975/2011
damages and permanent
injunction
Date of Commencement 01.03.2016
of evidence
Date of pronouncement 25.7.2016
of Judgment
Total Duration Year/s Month/s Day/s
05 00 12
(Ron Vasudev),
III Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGEMENT
This is a suit for Mandatory injunction, recovery of possession, damages and for permanent injunction.
2. The summary of the plaint averments is that; plaintiff and defendants are separated brothers and they are sons of one Dharma Naidu, who owned and possessed the house property bearing No. 146/A, 5th Main Road, 4th Block, Rajajinagar, Bengaluru measuring East-West:35 feet, North-South: 40 feet as it was allotted to him by Karnataka Housing Board. However, on his death, sale deed came to be executed in the name of defendant No.1; that the said Dharma Naidu died on 6/12/1988 and his wife Smt. Leelavathi predeceased him on 24/3/1978; that in addition to plaintiff and defendants, the said couple has two more sons by name Yathiraju and Radhakrishna; that on the death of said Dharma 3 O.S.No.4975/2011 Naidu, differences arose amongst his sons, therefore, plaintiff and said yathiraju filed a suit for partition in O.S.No.6543/1997 against defendants as well as the said Radhakrishna. After decreeing of the said suit, RFA was came to be filed by the plaintiff and Yathiraju at RFA No.188/2000 and therein matter was compromised on 24/1/2001 and the said property was partitioned amongst all the 5 brothers. As per the said compromise, a sketch was prepared and as described in that sketch, schedule-A fell to the share of defendant No.1, schedule-B gone to the share of Radhakrishna, Schedule-C and 'F' fell to the share of plaintiff, schedule-D fell to the share of defendant No.2 and schedule E gone to the share of yathiraju. Later said Yathiraju sold his share to the plaintiff under registered sale deed dt: 9/9/2004, whereas the said Radhakrishna, who remained bachelor, by executing a Will on 2/4/2006 bequeathed his share to the plaintiff and he died on 27/8/2006. As a result plaintiff became the absolute owner of schedule-D,E,C and F as per said compromise sketch. Plaintiff also enclosed a rough sketch along with plaint and it is part and parcel of it. Towards wsestern side of the said property No.146/A, there was conservancy measuring 5" x 35" and on account of introduction of UGD(underground drainage) pipes, the said conservancy became non-use, wherefore, like other neighbouring residents, plaintiff also gave an application to the KHB to allot the said conservancy area and he fought upto Hon'ble High Court to get allot it. Finally the Housing Board allotted that area and plaintiff paid allotment price and sale deed was came to be executed in his favour. The schedule-B,E,C and F as per compromise sketch were separately issued katha by BBMP as 48/1-1, 48/1-2, 48/1-5 and 48/1-6 whereas the conservancy lane purchased from the KHB was assigned katha Number as 48/1-7. That being the state of affairs, after 4 O.S.No.4975/2011 the compromise decree in the said partition suit in Hon'ble High Court with the consent of plaintiff the defendant No.1 started to use a small portion of Radhakrishna's share by making little alteration ie., by removing the portion of wall abutting to northern side of his share, measuring 5"x5" which is shown as RQPOR in the plaint sketch, which is morefully described as C-schedule in the plaint and similarly 2nd defendant also with the consent of plaintiff started using a small portion of Yathiraju's share in the first floor by making some alterations and he put up temporary staircase in the open space of the first floor in order to reach his terrace and it is marked as STUV in the plaint sketch and it is morefully described in the schedule-D to the plaint. Plaintiff is the owner of the portion marked by letters BHING in the ground floor and portions marked by letters E and F in the first floor. After purchase of the conservancy, plaintiff is also the owner of property described in the letters GHIJKLMNG as shown in the plaint sketch both in ground-floor and first floor which is morefully described in the A schedule to the plaint. Defendant No.1 is in possession of ground floor marked as MNKL and defendant No.2 is in possession of first floor which is marked as ZWXY in the plaint rough sketch. These portions are morefully described in the schedule-B to the plaint. Now the sons and daughters of plaintiff have grown up and they require separate accommodation, hence, in the month of January- 2010 by revoking permission granted to the defendant No.1 and 2, plaintiff requested them to vacate the said portions but, they did not heed to it. Plaintiff has obtained licence from BBMP to make construction on first floor and to extend accommodation, though defendants initially had agreed to his request, later refused to oblige him. On account of improper maintenance of conservancy lane, which is the marginal land abutting to 5 O.S.No.4975/2011 the property held by defendants, during the rainy season rain water is percolating and damaging the plaintiff's property. Wherefore, again and again plaintiff requested the defendant No.1 to hand-over the possession of 'C' schedule property and the defendant No.2 to hand-over the 'D' schedule property as shown in the plaint schedules by removing the temporary construction. As they are not in mood of vacating them, plaintiff is constrained to approach the court for mandatory injunction to direct the defendants to remove the said temporary constructions and handover the B,C and D portion properties to him and for recovery of Rs.10,000/- from each of them towards damages for illegal occupation of the plaint B,C and D properties and direct the defendants to pay Rs.3,000/- per month for their wrongful occupation of the said properties and for permanent injunction to restrain the defendants, their agents, servants or anybody claiming through them from interfering or causing obstruction or putting up construction in the first floor above the plaintiff's portion and for such other reliefs.
3. The defendant No.1 appeared and filed written statement. The summary of it is as under;
that the suit is not at all maintainable either under law or on facts and is liable to be dismissed in limine. It is true that this defendant, defendant No.2 and plaintiff are the sons of Dharma Naidu and said Dharma Naidu was the absolute owner of the property bearing No.146/A; it is also true that on the death of their father, difference of opinion arose among them and by filing the suit for partition compromise was arrived in RFA and they shared the property as described in the rough sketch annexed to the compromise petition, however, it is denied that 6 O.S.No.4975/2011 conservancy lane was purchased by plaintiff by fighting upto Hon'ble High Court and he is the exclusive owner of the suit schedule property and their brother Radhakrisha executed a will on 2/4/2006 and bequeathed his share to the plaintiff. The said documents are concocted for the purpose of suit. It appears that plaintiff who is working in the Police department exercising his influence on the officials of Karnataka Housing Board got the sale deed of marginal land without the knowledge of this defendant and others. It is specifically denied that subsequent to the compromise entered in RFA there was some alteration or modification with the consent of plaintiff. Rest of the plaint averments are far from truth and plaintiff must be put to strict proof of the same. Wherefore, defendant No.1 prays to dismiss the suit with costs.
4. In his separate written statement, defendant No.2 pleads as under:
that the suit is wholly false, frivolous, vexatious and not maintainable either in law or on facts and same is liable to be dismissed in limine; that the plaintiff has not approached the court with clean hands and he is not entitle for any relief. It is specifically denied that their brother Radhakrishna had executed a will and bequeathed his share to the plaintiff. In fact, their said brother Radhakrishna died intestate on 27/8/2006, as such all his brothers, as he was unmarried, are entitled to inherit his share. Plaintiff has concocted the will by forging the signature of Radhakrishna. Apart from that, as this plaintiff is working in the Police Department by using his influence has filed a false complaint against this defendant No.2 in Rajajinagar Police Station at Cr.No. 65, 75 and 177/2012 similarly by exerting pressure on another brother Yathiraj 7 O.S.No.4975/2011 plaintiff was successful in purchasing his share for throw away price; that the plaintiff is avaricious, he wants to knock off the entire property by brow-beating the other brothers and he has no regards for law and is unabashedly manipulative; that during pendency of suit, plaintiff has demolished their stair-case which was the only access available to this defendant to reach his property situated in the 2nd floor. This defendant has filed complaint against the said mischievous act of plaintiff and his family members. Plaintiff is using all odd tactics to coerce these defendants to sell away their shares to him. Without prejudice to the foregoing contentions, this defendant No.2 further denies that, with the consent of plaintiff this defendant is using the portion of property and his liable to vacate it. There is no cause of action for the suit and the alleged one is false and invented. This defendant is enjoying the staircase shown at 'D' schedule to the plaint as easement of necessity. Hence, for the foregoing reasons and other reasons to be urged at the time of arguments, defendant No.2 prays to dismiss the suit with costs.
5. Based on the said pleadings, my Predecessors in office have framed the following issues and additional issue:
1. Whether plaintiff proves that he is entitled for the mandatory injunction in the nature of direction to remove the temporary construction made and to hand over vacant possession of plaint 'B', 'C' and 'D' schedule properties from defendants ?
2. Whether plaintiff proves that he is entitled for recovery of Rs.10,000/- from each of the defendants towards damages for the illegal occupation of plaint 'B', 'C' and 'D' schedule properties ?
3. Whether plaintiff proves that he is entitled to recover Rs. 3,000/- each per month for their wrongful 8 O.S.No.4975/2011 occupation from the date of suit till the date of delivery of possession of plaint 'B', 'C' and 'D' schedule properties from defendants?
4. Whether plaintiff proves that he is entitled for the relief of permanent injunction in the nature of restraining defendants from his putting up further construction on the first floor of his property?
5. To what decree or order?
ADDITIONAL ISSUE
1. Whether the suit relief is properly claimed?
6. In support of his case, plaintiff examined himself as PW.1 and got marked Ex.P1 to P24 documents. Even after providing enough time, defendants did not turn-up to cross-examine PW.1 muchless to adduce their evidence. Heard the arguments of Sri.ANR, Advocate for plaintiff and Sri. ND, Adv for defendant No.2. There was no representation for defendant No.1. I have also gone through the pleadings and the evidence as well as written arguments filed on behalf of plaintiff.
7. On overall consideration of entire materials, my findings on the above issues are as under:
Issue No.1 - In the Negative.
Issue No.2 - In the negative Issue No.3 - In the negative Issue No.4 - In the negative Addl.Issue - In the negative.
Issue No.5 - As per final order, for the following;9 O.S.No.4975/2011
REASONS Additional Issue :
8. The first and foremost thing that requires to be hammered is office observation on payment of court fee. It may be noted that while registering the suit, office raised an initial objection stating that court fee has to be paid on the market value of the schedule-B,C and D of the plaint as provided u/s 29 of KCF & SV Act, but, without attending that observation, plaintiff went on with the matter and on 18/7/2011 this court also permitted him to proceed with the case keeping open the question of court fee as urged by the plaintiff. I have scanned through the entire order sheet, but, there is no endorsement that the plaintiff ever supplied deficit court or able to convince that court fee paid by him is sufficient in the given circumstances of the case.
9. In this regard, valuation slip filed by him along with plaint shows that he valued the mandatory relief u/s 26(c) and with reference to B,C,D, plaint schedule valuing each mandatory relief at Rs.1,000/- he paid court fee on the same and again regarding permanent injunction, he valued the relief at Rs.1,000/-( that cannot be disputed) and in respect of recovery of damages at Rs.10,000/- from each defendants and for recovery of Rs.3,000/- per month for their wrongful occupation from the date of suit till the date of delivery of possession no proper valuation was made by him. Considering the fact that property No.146/A is situated in Rajajinagar, Bengaluru which is a prime locality, the valuation made by him and payment of court fee there on by him is grossly inadequate. Admittedly, the relief of recovery of possession of immovable property has been dealt 10 O.S.No.4975/2011 u/s 29 of KCF & SV Act so he ought to have paid court fee on the market value of the property as on the date of suit and not by valuing the mandatory injunctions at Rs.1,000/-. So without any hesitation, I conclude that court fee paid on the plaint is considerably low. Since the said matter was not addressed and attended at the earliest stage and on account of framing of additional issue, I hold that plaint suffers from deficit payment of court fee, which shall have to be recovered by the office at the time of preparing the decree. Accordingly I answer this issue in negative.
10. ISSUE NO.1 to 4: Due to paucity of evidence, I have taken these issues simultaneously.
11. A strange fact is that plaintiff has prayed for mandatory injunction straight away ie., to recover possession of B,C and D plaint schedule without seeking the relief of declaration of his title in respect of portions of Yathiraj and Radhakrishna including conservancy lane under the assumption that by virtue of sale deed executed by Yathiraj and will executed by Radhakrishna and sale deed executed by KHB, he became the absolute owner and nobody has grievance against the said documents. At the same time, I would also emphasis that only on the reason that defendants did not take interest to contest the matter by cross-examining him or by placing their evidence, plaintiff cannot take it for granted that his claims stand proved. Even where the defendant is set exparte, it is obligatory on the part of plaintiff to prove his case before he dreams in getting reliefs in a civil dispute. I am making this observation on the basis of ratio laid down in the decisions reported at AIR 1999 SC 3381(Balaraj Taneja Vrs Sunil Madan) and AIR 2012 SC 2528(C.N.Ramegowda Vrs 11 O.S.No.4975/2011 C.Chandregowda, dead by his LRs). In the said decisions, Hon'ble Apex Court while dealing with order 8 rule 10 of C.P.C held that, only on the reason that no written statement was filed by defendant courts should not proceed to decree the suit blindly. In the instant case, admittedly, both the defendants have filed their written statements, but, only distinction is that they have not participated in the trial, yet it is for the plaintiff to prove his case in all its probability.
12. For the sake of discussion even if it is held that as Yathiraj has executed sale deed in respect of "E" schedule property described in the compromise petition and the said original sale deed is produced at Ex.P5 and that cannot be disputed by defendants who are not parties to it, still it remains far for the plaintiff to presume/assume that he is the absolute owner of share that had gone to Radhakrishna and the portion which he allegedly purchased from the Housing Board namely conservancy lane.
13. Nevertheless, plaintiff has produced the so-called un-registered Will executed by Radhakrishna on 2/4/2006 at Ex.P6, it is undisputed that except adducing his own evidence, plaintiff has not examined any other person muchless an attestor to the said document to prove its valid execution. In their written statements, both the defendants have attacked the said document and have questioned its credibility. Even otherwise, as required u/s 68 of Indian Evidence Act 1872, if a document is required by law to be attested , it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of court and capable of giving evidence. The proviso to said section reads that " it shall 12 O.S.No.4975/2011 not be necessary to call an attesting witness in proof of execution of any document, not being a will which has been registered in accordance with provisions of the Indian Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied. Thus, from the plain reading of said proviso, Will which is necessarily to be attested by witnesses, in order to use it as evidence, atleast one of the attestor shall have to be examined otherwise it cannot be looked into. In the decision reported at ILR 2008 Kar.2115 (Sri. J.T.Surappa and another Vrs Sri. Sachidanandendra Saraswathi Swamiji Public Charitable Trust and others, Hon'ble High Court had an occasion to explain what are the basic elements to prove the valid execution of will. For the sake of convenience I would extract the relevant Head note A as under:
(A) Indian Succession Act, 1925-Section 2(h)-Will-proof of-
legal requirements-Duty of the court-five steps to be considered-HELD, Under the Act, the Will to be valid should be reduced into writing, signed by the testator and shall be attested by two or more witnesses and at least one attesting witnesses shall be examined. If these legal requirements are not found, in the eye of law there is no Will at all. Therefore, the first step is that if the documents produced before the Court prima facie do not satisfy these legal requirements, the court need not make any further enquiry, in so far as its due execution is concerned and can negative a claim based on the said document-FURTHER HELD, The second step is that when the legal heirs are disinherited, the Court has to scrutinize the evidence with greater degree of care than usual-The third step would be to find out whether the testator was in a sound state of mind at the terms of executing the Will-the fourth step would be to find out whether there exists any suspicious circumstances surrounding the execution of the Will-The firth step is to consider whether the Will that is executing is in accordance with Section 63 of the Act read with Section 68 of the Evidence Act.
13 O.S.No.4975/201114. On going through the principle enunciated in the said decision and also requirements contained in Section 68 of Evidence Act, they having not been fulfilled by the plaintiff, he cannot imagine the passing of title to 'B' schedule shown in the compromise petition from Radhakrishna to him. One may have some difficulty in understanding whenever I refer to schedules, as it is obvious that compromise entered in RFA produced at Ex.P3 as well as the present plaint contain the schedules ABCD. The only distinction is that in the compromise petition schedule E and F are also there, therefore, at every time, whatever I refer to the schedules, I am obliged to say whether that schedule refers to the present plaint or the schedule as described in the compromise petition. Having discussed above, the invalidity of Ex.P6, as no attestor was examined to prove the same, I conclude that will is not proved in a manner known to law, consequently the claim of plaintiff over the property especially that was held by Radhakrishna has to be rejected. Now I will turn to his claim over the conservancy lane. It is true that plaintiff has produced the original sale deed executed by Karnataka Housing Board in respect of that marginal land at Ex.P7 with its registered rectification deed at Ex.P10. However, one cannot think that said documents themselves would suffice to pass on title of that land in favour of plaintiff. I do find some substance in the contention of defendants that by abusing his office using the influence that he is a Head Constable, it appears that plaintiff took that sale deed exclusively in his name from the Housing Board, when admittedly said marginal land measuring East-West 5feet and North-South 35 Feet being abutting to the shares of all other brothers towards western side of entire property, so it was illegal on the part of housing board to grant that land to the plaintiff alone. Therefore, for such an irregular 14 O.S.No.4975/2011 execution of sale deed, this court cannot accept the title of plaintiff over the said portion. If these conclusions are arrived, the effecting of katha by BBMP based on such invalid documents and issue of katha extract or katha certificates as evidenced by Ex.P8,9,11 to 13 and receiving of tax in respect of said properties as evidenced by Ex.P14 to 18 or issue of licence to construct in the entire first floor excluding the share of defendant No.2 as could be seen from Ex.P19 and 20 have no significance in the eye of law.
15. The filing of suit on O.S.No. 3595/2014 and entering into compromise therein by plaintiff and defendant No.2 as evidenced by Ex.P21 and filing of execution petition in 2081/2015 as evidence by Ex.P22 and 23 would only show that while entering into compromise in RFA there was error on the part of parties in overlooking the common passage and common staircase which exists between B and C schedule of that sketch. Had it received proper attention, this dispute could not have arisen. The description of schedules in RFA produced at Ex.P3 show that when admittedly towards north of B schedule, common passage was situated it was ignored, instead the share of plaintiff was described. Likewise, towards southern side of plaintiff's 'C' schedule property instead of showing the said common passage and staircase, directly share of Radhakrishna was also shown. May be due to the said incorrect description, one more suit was came to be filed between plaintiff and defendant No.2 during the pendency of this suit and that was ended in compromise and alleging that there is some disobedience on the part of defendant No.2, the plaintiff filed execution petition to execute decree passed in O.S.No.3595/2014. But, it is not clear whether the said decree 15 O.S.No.4975/2011 was completely adhered to by the parties, whatever may be the end result of that decree, the fact is that for the failure of plaintiff to prove the valid execution of will by his late brother Radhakrishna, he cannot prevent the use of 'C' portion of plaint schedule either by defendant muchless by defendant No.1 or putting up of staircase ie., plaint 'D' schedule in the first floor in the portion belonged to Yathiraj as it is just above the common passage, likewise 'B' schedule to the plaint being part of marginal land he cannot restrict the use of the same by either defendant. Hence, holding that suit filed by him is totally mis-conceived and it lacks merits, I answer all these issues in the negative.
16. ISSUE NO.5:- In the result, I proceed to make the following:
ORDER Suit is dismissed.
Parties to bear their own costs.
Draw decree accordingly after payment of deficit court fee.
(Dictated to the Judgement Writer, transcription computerized, then corrected and pronounced by me in open court this the 25th day of July 2016) (Ron Vasudev), III Addl. City Civil & Sessions Judge, Bengaluru.
List of witnesses examined for the plaintiff side:
16 O.S.No.4975/2011PW1 Bhakthavathsala List of documents exhibited for the plaintiff side:
Ex.P1 : Death certificate Ex.P2 : Death certificate Ex.P3 : Certified copy of the judgment in RFA 188/2000 Ex.P4 : Buidling plan Ex.P5 : Original sale deed dt: 9/9/2004 Ex.P6 : unregistered Will Ex.P7 : sale deed of Karnataka Housing Board Ex.P8&9: katha extracts Ex.P10: Sale deed of Karnataka Housing Board Ex.P11to 13: katha extracts Ex.P14 to 17: Tax paid receipts Ex.P18 Receipt Ex.P19 Receipt Ex.P20: Plan Ex.P21: Certified copy of the compromise petition in O.S.No.3595/2014 Ex.P22& 23: Certified copy of the of ordersheet in Exn.No.2081/2015 Ex.P24: Certified copy of the of ordersheet in CrNo.190/2012 Ex.P16: Rental agreement Ex.P17: legal notice Ex.P18: certified copy of the SLP order(SLP.No.1673/2012) Ex.P19: certified copy of the sale deed dt: 26/11/1990 Ex.P20: Certified copy of the order in HRRP.No.114/2011 Ex.P21: Certified copy of the order in SLP.No.6373/2012 Ex.P22: Tax paid Receipts Ex.P23: Katha certificate 17 O.S.No.4975/2011 Ex.P24: Senior Citizen card Ex.P25: Layout plan List of witness examined for the defendant side:
DW.1: Chikkaiah List of documents exhibited for the defendant side:
Ex.D.1 Order of KPTCL
Ex.D.2 Application to BWSSB
Ex.D.3 Consumer card
Ex.D.4 Provisional demand note
Ex.D.5 Voters List
Ex.D.6 Ration card
(Ron Vasudev),
III Addl. City Civil & Sessions Judge,
Bengaluru.
18 O.S.No.4975/2011
Judgment pronounced in open court vide separate order ORDER 19 O.S.No.4975/2011 Suit is dismissed.
Parties to bear their own costs. Draw decree accordingly.
III Addl. City Civil & Sessions Judge, Bengaluru.