Bangalore District Court
G.Venkatramaiah vs Smt.Gowramma on 18 December, 2019
1
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 18 th DAY OF DECEMBER, 2019.
PRESIDING OFFICER
PRESENT : Sri.Sadananda M.Doddamani,
B.A., L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.3786/2012
PLAINTIFF/S: G.Venkatramaiah,
S/o N.V.Giriyappa,
Aged about 57 years,
R/at No.3D-204,
DOS Housing Colony,
Near Domlur Flyover,
Domlur,
Bangalore - 560 071.
(By Sri.MVN, Advocate)
Vs.
DEFENDANT/S: 1. Smt.Gowramma,
Aged about 60 years,
C/o Siddalingaiah,
No. 613, 10 th cross,
7 th main road, Kaverinagar,
Banashankari II Stage,
Bangalore - 560 070.
2
2. Sri.Siddalingaiah,
S/o not known to the plaintiff,
Aged about 62 years,
No.613, 10 th cross, 7 th main road,
Kaverinagar,
Banashankari II Stage,
Bangalore - 560 070.
3. Sri.Prakash,
S/o not known to the plaintiff,
Aged about 43 years,
R/at Parapana Agrahara,
Kudlu village,
Bangalore.
4. Smt.K.Varalakshmi,
Aged about 29 years,
D/o Late Lingaiah,
R/at No. 337, 3 rd cross,
Bhavani Nagar, 2 nd phase,
Banashankari,
Bangalore - 560 070.
5. Sri.R.Rajashekar,
Since dead by his legal
representatives
(a) Smt.Rajakumari,
W/o Late R.Rajashekar,
Aged about 38 years,
(b) Mas.Nithin,
S/o Late R.Rajashekar,
Aged about 16 years,
3
Minor represented by his mother
and natural guardian
Smt.Rajakumari,
All are residing at No. 26,
Flat No. 303, 3 rd Floor, Garden
layout,
HSR layout, 2 nd sector,
Bangalore - 560 102.
6. Sri.S.Krishna Reddy,
Aged about 42 years,
S/o Late H.A.Shamanna Reddy,
Halanayakanahalli,
Sarjapur road,
Bangalore - 560 035.
(D1 to D3, D4, D6 - Exparte
D5(a) to (c) - Exparte,
D5 - dead)
* * * * *
Date of institution of suit : 30.05.2012
Nature of suit : Declaration,
Injunction &
possession
Date of commencement
of recording of evidence : 17.12.2018
Date on which the judgment
was pronounced : 18.12.2019
4
Duration of the suit :Year/s Month/s Day/s
07 06 18
JUDGMENT
(1) This is a suit filed by the plaintiff seeking the relief of declaration, possession, permanent injunction and such other reliefs.
(2) In brief the case of the plaintiff is as under:
That the plaintiff is the absolute owner of suit schedule property as detailed in the plaint schedule and he has purchased the same from its erstwhile owner Sri.Raghuram Reddy through his General Power of Attorney holder Sri.Achutha Reddy and Sri.A.Babu Reddy under registered sale deed dated 23.8.1995. It is further contended that the plaintiff got the khatha of the suit schedule property transferred to his name and also he obtained permission from the panchayat in the 5 year 2006 itself for the purpose of constructing residential building. It is further contended that the plaintiff started clearing the debris lying on the suit schedule property for the purpose of putting construction in the year 2006 and on 4.9.2006 the defendant No. 1 to 3 along with their supporters came near the suit schedule property and tried to interfere with his peaceful possession and enjoyment of the same, as such he was constrained to file suit for bare injunction against the defendant No. 1 to 3 in O.S.No.8102/2006 which came to be erroneously dismissed by this court. It is further contended that being the said dismissal of the case the plaintiff filed RFA No. 2097/2011 before the Hon'ble High Court of Karnataka which is pending consideration. It is further contended that the above referred suit against defendant No. 1 to 3 came to be dismissed for not taking steps and also the plaintiff due to several 6 circumstances could not lead evidence in the said suit. However the court proceeded to record the evidence of 1 st defendant and dismissed the said suit. It is further contended that the suit schedule property is in actual physical possession of the plaintiff and he has paid taxes to the BBMP after the suit schedule property came within the jurisdiction of the BBMP.
(3) It is further contended that the suit schedule property was formerly part of Sy.No. 68/1 and 15 of Parapana Agrahara village and is comprised in the extent of survey numbers which fell to the share of Raghuram Reddy, the vendor of plaintiff in a family partition between the said Raghuram Reddy and his uncle Muni Reddy and his cousin Ananda Reddy. It is further contended that the said Raghuram Reddy formed several sites in the said land which fell to this share. It is further contended that the said Raghuram 7 Reddy executed a registered General Power of Attorney in favour of one Achutha Reddy and A.Babu Reddy. The said General Power of Attorney holders of Raghuram Reddy sold and conveyed the suit schedule property in favour of plaintiff as stated above. It is further contended that the 1 st defendant herein in the written statement filed by her in the suit O.S.No.8102/2006 had unequivocally admitted that the suit schedule property is entirely different than the one claimed by her. The 1 st defendant claimed to be the General Power of Attorney holder of one Ananda Reddy and Muni Reddy in respect of site No. 115 measuring east to west 40 feet and north to south 30 feet, bounded on the east by site No. 100, west by road, north by site No. 114 and south by road and that she had sold the same in favour of 5 th defendant herein. Since the property claimed to be sold by 1 st defendant in favour of 5 th defendant was entirely different as 8 admitted by them and also that the boundaries were entirely different. As such, the plaintiff was advised that the 5 th defendant herein need not to be made as party to the earlier suit in O.S.No.8102/2006. It is further contended that the 1 st and 4 th defendant who are related to each other as mother and daughter taking advantage of the fact of dismissal of O.S.No.8102/2006 hatched a conspiracy to somehow knock of the north western portion of suit schedule property and in this regard have with sinister designs created the so called rectification deed dated 21.8.2011 wherein the boundaries to site No. 115 which was allegedly conveyed by the 1 st defendant to the 4 th defendant came to be rectified as east by site No. 114, west by road, north by road and south by site No. 100 instead of east by site No. 100, west by road, north by site No. 114 and south by road. It is further contended that the 4 th defendant on the very same day 9 has purportedly sold the property bearing No. 115 with rectified boundaries in favour of 5 th and 6 th defendant by way of registered sale deed dated 23.5.2006, rectification deed dated 21.11.2011 and the sale deed in favour of 5 th defendant and 6 th defendant which were handed over by them near the suit schedule property. It is apparent on the face of the record that the defendants have resorted to the aforesaid acts with the sole intention of creating forged documents in respect of the suit schedule property and to knock off the north western portion of the same. The aforesaid facts came to the knowledge of plaintiff in the month of April 2012 that 5 th and 6 th defendants started to come near the suit schedule property illegally and started spreading rumors in the vicinity of the suit schedule property that they have created several documents in order to grab the north western portion of the suit schedule property. The plaintiff made 10 necessary enquiries and got the documents from concerned offices and learnt about the fraud perpetrated by the defendants.
(4) It is further contended that the 5 th and 6 th defendants are acting hostile to the plaintiff on the basis of the alleged sale deed executed by the 4 th defendant in their favour and are trying to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiff and are also claiming themselves to be the owners of north western portion of the same which insisted the plaintiff to approach this court for the relief of declaration that the plaintiff is the absolute owner of the suit schedule property and such other reliefs. It is further contended that the alleged sale deed in favour of 5 th and 6 th defendants is a sham document and does not confer any title on them in respect of the north western portion of the 11 suit schedule property. It is the product of fraud perpetrated by 1 st , 4 th 5th 5 th and 6 th defendants. The 5 th and 6 th defendants claim to be in possession of the north western portion of the suit schedule property on the basis of the fraudulent sale deed in their favour. As such by way of abundant caution the plaintiff is seeking the relief of possession as well from the 5 th and 6 th defendants in respect of the north western portion of the suit schedule property. It is further contended that on the basis of the alleged sale deed in their favour the 5 th and 6 th defendants are trying to set up title to themselves in so far as the north western portion of the suit schedule property is concerned and considering the hordes of henchmen at their disposal and the political and monetary influence they yield in the vicinity of the suit schedule property they are to be restrained by granting an order of permanent injunction. So the plaintiff has come up with the 12 present suit and in view of his above contention he prays for to decree the suit.
(5) The suit summons sent by this court was duly served upon defendant No.1 to 6. Inspite of service of summons the defendant No. 1 to 3, 4 and 6 remained absent. As such the said defendants have been placed exparte. The defendant No. 5 in pursuance of summons sent by this court appeared before the court through his counsel and filed his detailed written statement.
(6) The defendant No. 5 in his written statement by denying all the plaint averments contended that the suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed with exemplary cost. It is further contended that the description of the property in the plaint is absolutely belongs to defendant No. 5 and 6 and they have jointly 13 purchased the same from one Varalakshmi who is the vendor of the defendant in respect of the property bearing site No. 115, assessment No. 15 and 68/1, new BBMP 'F' form property No. 55 measuring east to west 40 feet and north to south 30 feet totally measuring 1200 sq.ft. situated at Parapana Agrahara village, Begur hobli, Bangalore. The 5 th defendant is in possession and enjoyment of the above said property. It is further contended that the defendant has purchased the property bearing No. 115 as stated above for valuable sale consideration from one Varalakshmi who is the 4 th defendant herein. The said Varalakshmi got purchased the same from her vendor the 1 st defendant herein who is the General Power of Attorney holder of the original vendors. The said sale deed is dated 21.11.2011, by virtue of the said sale deed the 5 th defendant is in possession and enjoyment of the same till today as an absolute owner thereof. The 14 plaintiff has no any manner of right, title, interest and possession over the suit schedule property. Upon perusal of the contents of para No. 12 of the written statement of 5 th defendant it would show that he has not denied the factum of he himself and 6 th defendant have filed suit for injunction against the plaintiff in O.S.No. 27211/2011 and also stated that the plaintiff has filed his objection to the said suit. It is further contended that the 5 th and 6 th defendant have jointly purchased the above referred suit schedule property bearing No. 115 from the 4 th defendant as stated above and they are in peaceful possession and enjoyment of the said property as absolute owners of the same. The suit schedule property described in the plaint is entirely different from the property purchased by 5 th and 6 th defendant as stated above. In view of his above contentions and other contentions taken in his written statement he prays for to dismiss the suit. 15 (7) During the pendency of the present suit defendant No. 5 was died. The plaintiff filed applications to bring the legal representatives of deceased defendant No. 5. The repeated issuance of notice was not served upon them and then the plaintiff has taken paper publication to the notice of the legal representatives of deceased defendant No. 5, inspite of the same they have not turned up and the application filed by the plaintiff to bring the legal representatives of deceased defendant No. 5 was allowed. Subsequently the plaintiff also took paper publication to the notice of the legal representatives of deceased defendant No. 5 with regard to the filing of the present suit, inspite of the same they failed to appear before the court. Consequently the legal representatives of defendant No.5 have been placed exparte.
16(8) On the basis of the above rival pleadings of the parties my learned Predecessor-in-office has framed the following as many as 7 issues and 1 additional issue.
(1)Whether the plaintiff proves that he is the owner of suit schedule property ?
(2)Whether the plaintiff further proves that the sale deed dated 21.11.2011 is fraudulent and not binding on the plaintiff ?
(3)Whether the plaintiff further proves that defendant No. 5 is in illegal possession of north western portion property "EBGFE" of the plaint schedule property ?
(4)Whether the plaintiff further proves that the defendants are trying to interfere with his possession over the suit property ?
17(5)Whether the plaintiff is entitled to relief of declaration, possession of 'EBGFE" portion of the suit schedule property ?
(6)Whether plaintiff is entitled to relief of injunction against the defendants?
(7)What order ?
Additional Issue:
(1) Whether the 5 th defendant proves
that he along with 6 th defendant
purchased property No. 115,
assessment No. 15 and 68/1 new BMP
'B' Form property No. 55 from 4 th
defendant under sale deed dated
21.11.2011 and said property is
entirely different from the schedule
property or any portion thereof ?
(9) The plaintiff in order to establish his case he himself got examined as PW1 and got marked 14 18 documents from Ex.P1 to Ex.P14 and closed his side evidence. The defendant No. 5 has not lead any evidence on his side.
(10) My findings to 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
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Addl. Issue No.1 : In the Negative
Issue No.7 : As per the final order
for the following:
REASONS
(11) Issue No. 1 to 4 & Additional Issue No. 1:
Since all these issues are inter-connected they are taken up together for common consideration and discussions in order to avoid repetition of facts and also for the sake of convenience.
19(12) The plaintiff in order to establish his case he himself got examined as PW1 and filed his affidavit by way of examination-in-chief, wherein he reiterated all the averments made in the plaint. PW1 further on oath stated before the court that he is the absolute owner of the suit schedule property having acquired the same from erstwhile owner Raghuram Reddy through his General Power of Attorney holder Achutha Reddy and A.Babu Reddy under registered sale deed dated 23.8.1995. He further stated that he has paid taxes to the erstwhile Konappana Agrahara Grama Panchayat and also obtained permission from the said Panchayat in the year 2006 for the purpose of putting up construction in the suit schedule property. He further stated that while he was clearing the debris lying in the suit schedule property for the purpose of construction in the year 2006 the defendant No. 1 to 3 along with their supporters came near the suit schedule 20 property on 4.9.2006 and tried to interfere with the possession of the suit schedule property. So he has filed O.S.No.8102/2006 seeking the relief of injunction and the said suit was came to be dismissed. He further stated that being assailed by the same he filed RFA No. 2097/2011 before the Hon'ble High Court of Karnataka and the same was disposed of by the judgment and decree dated 14.1.2015. He further stated that the said RFA was dismissed as withdrawn, as he wanted to file comprehensive suit against the defendants. He further stated that the suit schedule property was in his actual and physical possession and himself paid taxes to the BBMP authorities after the suit schedule property came within the jurisdiction of BBMP. He further stated that the suit schedule property was formerly part of Sy.No. 68/1 and 15 of Parapana Agrahara village. He further stated that the said property share was given to Raghuram Reddy who 21 is his vendor in a family partition and in the said portion the said Raghuram Reddy formed several sites. He further stated that the said Raghuram Reddy executed register General Power of Attorney in favour of one Achutha Reddy and A.Babu Reddy and the original of the General Power of Attorney is in the custody of General Power of Attorney holders. He further stated that the General Power of Attorney holders of the said Raghuram Reddy sold and conveyed the suit schedule property in his favour. He further stated that the defendant No. 1 in his written statement filed in O.S.No.8102/2006 had unequivocally admitted that the suit schedule property is entirely different than one claimed by her. He further stated that the 1 st defendant claimed to be the General Power of Attorney holder of one Ananda Reddy and Muni Reddy in respect of site No. 115 measuring east to west 40 feet and north to south 30 feet bounded on 22 the east by site No. 100, west by road, north by site No. 114 and south by road and that she had sold the same in favour of 4 th defendant. So what he stated that the property claimed to be sold by the 1 st defendant in favour of 4 th defendant was entirely different as admitted by them. He further stated that after dismissal of O.S.No.8102/2006 the defendant No. 1 and 4 being related to each other hatched a conspiracy to somehow knock of the north western portion of the suit schedule property and accordingly they created the so called Rectification Deed dated 21.11.2011, wherein the boundaries of site No. 115 was allegedly conveyed by 1 st defendant to 4 th defendant came to be rectified as east by site No. 114, west by road, north by road and south by site No. 100, instead of east by site No. 100, west by road, north by site No. 114 and south by road. He further stated that the defendant No. 4 on the very same day 23 has sold the property bearing No. 115 with rectified boundaries in favour of 5 th and 6 th defendant by way of registered sale deed dated 23.5.2006. He further stated that the sale deed dated 23.5.2006, the Rectification Deed dated 21.11.2011 were handedover by them near the suit schedule property to the 5 th and 6 th defendant. He further stated that the defendants created the forged documents in respect of the suit schedule property to knock of the north western portion of the same. He further stated that the defendant No. 5 and 6 are acting hostile to him on the basis of the above referred alleged sale deed executed by 4 th defendant in their favour and trying to interfere with their peaceful possession and enjoyment of the suit schedule property and also claiming themselves to be the owners of the north western portion of the same.
(13) He further stated that the alleged sale deed in favour of 5 th and 6 th defendant is a sham document and 24 does not confer any title on them in respect of the suit schedule property. The 5 th and 6 th defendants claim to be in possession of the north western portion of the suit schedule property on the basis of the fraudulent sale deed in their favour, as such by way of abundant caution he sought for the relief of possession from 5 th and 6 th defendant in respect of the north western portion of the suit schedule property. He further stated that the defendant No. 5 and 6 to knock of the north western portion of the suit schedule property during the pendency of the present suit have put up construction over the same. He further stated that certain people claiming to be the henchmen of the above referred defendant in the month of March 2016 dumped construction material in the suit schedule property. He further stated that the suit in O.S.No.27211/2011 filed by defendant No. 5 and 6 against him seeking the relief of injunction and in the 25 said suit they obtained "Status-quo" order. He further stated that he moved an application at above referred suit seeking direction for implementation of "Status- quo" order. However the said application came to be rejected. Defendant No. 5 and 6 having kept quite for sometime, after lapse of sometime have put up construction of AC sheet roofed house in and over the north western portion of the suit schedule property in the 2 nd week of November 2016. The above referred suit filed by them was dismissed on 25.10.2018 and consequently the "Status-quo" order has come to an end. He further stated that the photographs produced before the court evidencing the construction put up by the defendants in the north western portion of the suit schedule property and the said construction by 5 th and 6 th defendant is illegal and they did not have any right to put up construction over the same. He further stated that the illegal structure put up by the 26 defendant No. 5 and 6 on the north western portion of the suit schedule property or any portion of the suit schedule property is to be brought to its original form, i.e., the vacant site. So he sought the relief of mandatory injunction directing the defendant to demolish the illegal construction put up by them in the north western portion of the suit schedule property or any portion of the same. In support of his case he got marked 14 documents from Ex.P1 to Ex.P14. In view of his above oral and documentary evidence he prays for to decree the suit.
(14)The defendant No. 5 during the pendency of the present suit was died. As such there is no evidence on his side.
(15) The learned counsel for the plaintiff during the course of his arguments contended that the plaintiff has filed the present suit seeking the relief of 27 declaration to declare the plaintiff as the absolute owner of the suit schedule property and to declare the sale deed dated 21.11.2011 as a fraudulent one does not confer any title to 5 th and 6 th defendant and would not binds the plaintiff, for mandatory injunction, possession of north western portion shown in the sketch by letters "EBGF" and for permanent injunction. He further contended that the plaintiff is the absolute owner of the suit schedule property and he has acquired the same from its erstwhile owner Raghuram Reddy through his General Power of Attorney holder Achutha Reddy and A.Babu Reddy under registered sale deed dated 23.8.1995. In order to substantiate his contention he placed his reliance upon Ex.P1 above referred original sale deed. He further stated that the plaintiff after having purchased the suit schedule property he himself paying the taxes in respect of the suit schedule property and his name came to be 28 entered in the Demand Register Extract and Form No. B in respect of the suit schedule property. In order to substantiate his contention he placed his reliance upon Ex.P2 to Ex.P5. He further contended that the plaintiff after having acquired the suit schedule property obtained permission from the Panchayat in the year 2006 for the purpose of constructing residential building and when he started clearing the debris lying on the suit schedule property for the purpose of construction the defendant No. 1 to 3 along with their henchmen came near the suit schedule property on 4.9.2006 and tried to interfere with his peaceful possession and enjoyment of the suit schedule property. So the plaintiff filed suit in O.S.No.8102/2006 against defendant No. 1 to 3 seeking the relief of permanent injunction. He further contended that the said suit was came to be dismissed and being assailed by the same the plaintiff preferred RFA No. 2097/2011 and 29 the same was disposed in terms of the memo filed by the plaintiff. What he contended that the said RFA was dismissed as withdrawn and the Hon'ble High Court of Karnataka while dismissing like so observed that the same was dismissed as withdrawn without prejudice to the suit now filed by the plaintiff. He further contended that right from the date of purchasing the suit schedule property the plaintiff was in actual physical possession and enjoyment of the suit schedule property and the same was formerly part of Sy.No. 68/1 and 15 of Parapana Agrahara village and is comprised in the extent of survey numbers which fell to the share of Raghuram Reddy the vendor of plaintiff in a family partition between him, his uncle Muni Reddy and his uncle Achutha Reddy. He further contended that the above referred Raghuram Reddy formed several sites in the said land which fallen to his share. He further contended that the said 30 Raghuram Reddy executed registered General Power of Attorney in favour of one Achutha Reddy and A.Babu Reddy and the said original General Power of Attorney is in the custody of the said General Power of Attorney holders and the said General Power of Attorney holders of Raghuram Reddy sold and conveyed the suit schedule property in favour of plaintiff under Ex.P1 registered sale deed. In order to substantiate his contention that the erstwhile Raghuram Reddy executed registered General Power of Attorney he placed his reliance upon Ex.P14 the General Power of Attorney executed by Raghuram Reddy in favour of Achutha Reddy and A.Babu Reddy and the said document is obtained under RTI Act. He further placed his reliance upon Ex.P13, i.e. application given to the concerned authority under RTI Act to get Ex.P14 General Power of Attorney. So what he contended that the above said Ex.P14 would clearly shows that the erstwhile owner 31 Raghuram Reddy executed General Power of Attorney in favour of Achutha Reddy and A.Babu Reddy and the said General Power of Attorney holder on the strength of Ex.P14 executed Ex.P1 registered sale deed in respect of the suit schedule property in favour of plaintiff on 23.8.1995. So he contended that the documents produced by the plaintiff as referred above would clearly shows that he is the absolute owner of the suit schedule property.
(16) He further contended that in a suit filed by the plaintiff in O.S.No.8102/2006 the defendant No. 1 filed his written statement in the said suit and wherein she unequivocally admitted the suit schedule property is entirely different from than the one claimed by her. He further contended that the defendant No. 1 claimed to be General Power of Attorney holder of one Anand Reddy and Muni Reddy in respect of site No. 115 measuring east to west 40 feet and north to south 30 32 feet bounded on the east by site No. 100, west by road, north by site No. 114 and south by road and she has sold the same in favour of defendant No. 4. In order to substantiate his contention he placed his reliance upon Ex.P10 the certified copy of the sale deed executed by defendant No. 1 in favour of defendant No. 4 on 23.5.2006 at Ex.P10. He further contended that defendant No. 1 and defendant No. 4 are related to each other and after dismiss al of O.S.No.8102/2006 filed by the plaintiff they hatched a conspiracy to knock of the north western portion of the suit schedule property and they have created the so called registered sale deed dated 21.11.2011, wherein the boundaries of site No. 15 which was allegedly conveyed by 1 st defendant in favour of 4 th defendant came to be rectified as east by site No. 114, west by road, north by road and south by site No. 100 instead of east by site No. 100, west by road, north by site 33 No. 114 and south by road. He further stated that the defendant No. 4 on the same day, i.e., on 21.11.2011 sold site No. 115 with rectified boundaries in favour of defendant No. 5 and 6 under registered sale deed dated 21.11.2011. In order to substantiate his contention, i.e., to say with regard to the registered sale deed as stated above and execution of sale deed by defendant No. 4 in favour of defendant No. 5 and 6 he placed his reliance upon Ex.P11 and Ex.P12. So what he contended that the above said aspect would clearly shows that in order to knock of the north western portion of the suit schedule property on the same day, i.e., on 21.11.2011 Rectification Deed and registered sale deed by defendant No. 4 in favour of defendant No. 5 and 6 came to be executed. So he contended that the said above two documents are cerated and concocted documents in order to knock of the north western portion of the suit schedule property and 34 defendant No. 5 and 6 would not get any valid title in respect of the same and also the said above referred documents would not binds the plaintiff. He further contended that along with the plaint the plaintiff has produced sketch. The very sketch produced by him would clearly goes to show that the defendant No. 5 and 6 on the strength of the concocted Ex.P12 sale deed are in illegal possession of the north western portion which is shown by letters in the sketch annexed to the plaint as "EBGF". He further contended that defendant No. 5 and 6 on the strength of the alleged Ex.P11 sale deed are attempted to interfere with the peaceful possession and enjoyment of the same and ultimately they illegally occupied the north western portion of the suit schedule property which is shown by letters in the sketch annexed to the plaint as "EBGF".
35(17) He further contended that defendant No. 5 and 6 on the basis of Ex.P11 fraudulent sale deed are in illegal possession and enjoyment of north western portion of the suit schedule property and on the strength of the said document they filed O.S.No.27211/2011 against the plaintiff herein seeking the relief of permanent injunction and in the said suit he obtained "Status-quo" order. He further contended that the plaintiff in the said suit moved an application seeking direction for implementation of "Status-quo"
order and the said application was came to be dismissed. He further contended that the defendant No. 5 and 6 having kept quite for sometime and after lapse of sometime have put up construction of ACC roofed house in and over the north western portion of the suit schedule property by the 2 nd week of November 2016 and in the meanwhile the above referred suit filed by him was dismissed on 25.10.2018 36 and consequently the "Status-quo" order was came to an end. In order to prove the factum of defendant No. 5 and 6 on the strength of fraudulent Ex.P11 documents have put up illegal construction in the suit schedule property in the north western portion of the suit schedule property he placed his reliance upon 19 photos and one CD produced at Ex.P7. So what he contended that the above said photographs and CD coupled with the documents as referred above would clearly shows that though the plaintiff is the absolute owner of the suit schedule property, defendant No. 5 and 6 on the basis of Ex.P11 fraudulent document are in illegal possession of north western portion of the suit schedule property and illegally put up construction. He further contended that though defendant No. 5 contended that he has purchased the property No. 115, assessment No. 15-68/1, new BBMP 'B' form property No. 55 from 4 th defendant under sale 37 deed dated 21.11.2011 and contending that the said property is entirely different from the suit schedule property or any portion thereof, but to prove the said aspect there is no evidence on record. He further contended that the defendant No. 5 during the pendency of the suit was died and the plaintiff has taken steps to bring his legal representatives on record. He further contended that inspite of repeated issuance of process to the legal representatives of deceased defendant No. 5, the same was not served and ultimately the plaintiff has taken paper publication to the notice of legal representatives of deceased defendant No. 5 and even then also they failed to appear before the court. Consequently the application to bring the legal representatives of deceased plaintiff was allowed and subsequently inspite of the plaintiff having taken paper publication with regard to filing of the present suit to the notice of the legal 38 representatives of defendant No. 5 they failed to appear before the court. So what he contended that absolutely there is no evidence to accept the stand taken by defendant No. 5 in his written statement. Per contra the very oral and documentary evidence placed before the court by the plaintiff would clearly shows that he is the absolute owner of the suit schedule property and the sale deed dated 21.11.2011 executed by defendant No. 4 in favour of defendant No. 5 and 6 is a fraudulent document and not binding on the plaintiff. So also the evidence on record would show that the defendant No. 5 is in illegal possession of the north western portion of the suit schedule property which is shown by letters in the sketch as "EBGF" and there is sufficient evidence on record to show the alleged interference by the defendants and ultimately the defendant No. 5 and 6 put up illegal construction in the north western portion of the suit schedule 39 property. As such the plaintiff is entitled for the relief as sought by him. In view of his above arguments he urged to answer issue No. 1 to 4 in the Affirmative and Additional Issue No. 1 in the Negative. (18) In the light of the arguments canvassed by the learned counsel for the plaintiff I have gone through the records. Admittedly the plaintiff has filed the present suit seeking the relief of declaration to declare him as the absolute owner of the suit schedule property, to declare the sale deed dated 21.11.2011 as a fraudulent document and not biding upon him. So also the plaintiff sought possession of the north western portion of the suit schedule property by demolishing the illegal construction put up by defendant No. 5 and 6 and also sought the relief of permanent injunction and mandatory injunction. 40 (19) The plaintiff claims to be the absolute owner of suit schedule property, i.e., vacant property bearing khatha No. 1166, property No. 159/204/17, 18 old house list No. 17, 18, khatha No. 204 situated at Parapana Agrahara village, Begur hobli, Bangalore south taluk, measuring east to west 60 feet and north to south 40 feet. It is the contention of the plaintiff that he has acquired the above referred property under Ex.P1 registered sale deed dated 23.8.1995 from the erstwhile owner Raghuram Reddy through his General Power of Attorney holder Achutha Reddy and A.Babu Reddy. It is the contention of the plaintiff that his erstwhile owner Raghuram Reddy formed site in property acquired by him in the partition of his family.
It is the further contention of the plaintiff that his erstwhile owner Raghuram Reddy executed registered General Power of Attorney in favour of one Achutha Reddy and A.Babu Reddy as per Ex.P14 and the said 41 General Power of Attorney holders on the strength of Ex.P14 sold and conveyed the suit schedule property as referred above in his favour. It is the contention of the plaintiff that after he having purchased the suit schedule property under Ex.P1 registered sale deed all the revenue documents entered in his name and he himself paying the taxes in respect of the suit schedule property and also obtained licence from the erstwhile Konappana Agrahara Grama Panchayat, in order to put up construction in the year 2006. It is the contention of the plaintiff that when he started clearing the debris lying in the suit schedule property the defendant No. 1 to 3 on 4.9.2006 came along with his henchmen near the suit schedule property and tried to interfere with his peaceful possession and enjoyment of the suit schedule property. As such he filed O.S.No.8102/2006 seeking the relief of injunction and the said suit was dismissed. Being assailed by the same he filed RFA 42 No. 2097/2011 before the Hon'ble High Court of Karnataka and the same was came to be disposed of on 14.1.2015. The very certified copy of the order passed in the said RFA would show that the same was dismissed as withdrawn without prejudice to the suit now filed by the plaintiff. It is the contention of the plaintiff that the defendants are no way concerned with the suit schedule property. Inspite of the same they are trying to interfere with the peaceful possession and enjoyment of the suit schedule property. It is the contention of the plaintiff that the defendant No. 1 claims to be the General Power of Attorney holder of one Anand Reddy and Muni Reddy in respect of site No. 115 and she has sold the same in favour of defendant No. 4 as per Ex.P10 sale deed dated 23.5.2006. It is the contention of the plaintiff that the defendant No. 1 and 4 are related to each other and they hatched a conspiracy to knock of the north 43 western portion of the suit schedule property and got created a Rectification Deed dated 21.11.2011 as per Ex.P11. It is the specific contention of the plaintiff that in the said Rectification Deed the boundaries to site No. 115 shown as east by site No. 114, west by road, north by road, and south by site No. 100 instead of east by site No. 100, west by road, north by site No. 114 and south by road. It is the contention of the plaintiff that on the same day, i.e., on 21.11.2011 the defendant No. 4 sold the north western portion of the suit schedule property in favour of defendant No. 5 and 6 under Ex.P12 sale deed dated 21.11.2011. So the plaintiff contended that the above said act of the defendants would clearly shows that Ex.P10 sale deed dated 21.11.2011 is a fraudulent document and it would not convey any title to defendant No. 5 and 6 in respect of the north western portion of the suit schedule property and it would not binds the plaintiff. 44 It is the further contention of the plaintiff that defendant No. 5 and 6 on the strength of Ex.P10 fraudulent sale deed have put up construction in the north western portion of the suit schedule property. So the plaintiff got amended the plaint and sought the relief of mandatory injunction seeking possession of north western portion of the suit schedule property which is illegally occupied by defendant No. 5 and 6 and put up illegal construction and sought for possession of the same by demolishing the existing structure therein. When the plaintiff contended that Ex.P10 is the outcome of fraudulent act of defendants, it is for the plaintiff to prove the said aspect by placing acceptable evidence before the court. (20) In the light of the above contention of the plaintiff on going through the records it would show that the plaintiff claims to be the absolute owner in 45 respect of site No. 17 and 18, whereas the defendant claims that he is the owner of site No. 115. So also upon perusal of the measurement of suit schedule property it would show that it measures east to west 60 feet and north to south 40 feet. The measurement of the property claimed by defendant No. 5 and 6, i.e., site No. 115 it would show that its measurement is 30 x 40 feet, i.e., 1200 sq.ft. So at this juncture it can be said that even the measurement of the properties claimed by both the parties are quite different. The plaintiff along with the plaint produced the hand made sketch prepared by him, wherein he shown by letters "EBGF" is the encroached area by defendant No. 5 and
6. The plaintiff has mainly relied upon Ex.P1 registered sale deed dated 23.8.1995 and Ex.P14 General Power of Attorney obtained under RTI Act alleged to be executed by erstwhile owner Raghuram Reddy in favour of Achutha Reddy and A.Babu Reddy. 46 I have gone through Ex.P14 General Power of Attorney executed by erstwhile owner in favour of his General Power of Attorney holders as stated above. Upon perusal of Ex.P14 it would show that no doubt the erstwhile owner of plaintiff executed General Power of Attorney in favour of Achutha Reddy and A.Babu Reddy authorising them to deal with the sites mentioned in the page No. 3 and 4 of the said document. Upon perusal of the said pages it would show that wherein they have shown four schedules, i.e., schedule 'A' to schedule 'D'. Upon perusal of the said schedules it would show that they have authorised to deal with the sites mentioned in the respective schedules. So also upon perusal of the said schedules it would show that the site number claimed by defendant No. 5, i.e., site No. 115, is not nearby the sites shown in schedule 'A' to 'D' of Ex.P14. When the plaintiff contended that the defendant No. 5 and 6 47 have encroached north western portion of 'A' schedule property which is shown in the sketch annexed to the plaint by letters as "EBGF" it is for them to prove the said aspect by placing acceptable evidence before the court.
(21) Admittedly the sketch annexed to the plaint is a hand made sketch prepared by the plaintiff for his convenience. Admittedly it is not prepared by any government survey department nor the sketch and measurement of the property was prepared by any private engineers. When that would be the case on the strength of the hand made sketch prepared by the plaintiff for his convenience the stand taken by the plaintiff that the defendant No. 5 and 6 on the strength of Ex.P10 fraudulent sale deed illegally encroached "EBGF" portion in the north western portion of the suit schedule property cannot be 48 accepted. As it is already stated above the plaintiff specifically contending that Ex.P10 is a fraudulent document. When he specifically pleaded like so it is for him to show in what manner and in what way by fraudulent act the defendant No. 5 and 6 obtained Ex.P10 sale deed from defendant No. 4. When a person plead fraudulent act of any person the burden is on the said person to prove the fraudulent act of the person against whom he has made allegation in the manner known to law. Admittedly absolutely no acceptable evidence has been placed before the court the defendant No. 5 and 6 fraudulently obtained Ex.P10 sale deed from defendant No. 4. When that would be the case the contention of the plaintiff that Ex.P10 sale deed dated 21.11.2011 is a fraudulent document and it would not binds him cannot be accepted. As it is already stated above the schedule 'A' to 'D' shown in Ex.P14 General Power of Attorney 49 at page No. 3 and 4 does not disclose the site No. 115 claimed by defendant No.5 and 6 are nearby the sites mentioned in schedule 'A' to 'D'. When that would be the case the contention of the plaintiff that Ex.P10 sale deed dated 21.11.2011 is a fraudulent document and it would not binds him cannot be accepted. As it is already stated above the schedule 'A' to 'D' shown in Ex.P14 General Power of Attorney at page No. 3 and 4 does not disclose the site No. 115 claimed by defendant No. 5 and 6 are nearby the sites mentioned in schedule 'A' to 'D'. When that would be the case the contention of the plaintiff that the construction put up by defendant No. 5 and 6 is a north western portion of the suit schedule property cannot be accepted. When a person claiming absolute ownership over any property, it is for him to establish his title over the said property and when he seeks the relief of mandatory injunction and possession, it is for him to 50 prove the identification of the property claimed by him. Absolutely there is no acceptable evidence placed before the court by the plaintiff where exactly the property claimed by him, i.e., suit schedule property, i.e., at site No. 17 and 18 is located. Merely on the basis of the hand made sketch annexed to the plaint and on the basis of Ex.P7, 19 photos and one CD it cannot be possible to say that the area wherein defendant No. 5 and 6 have put up construction is north western portion of the suit schedule property and they have put up construction illegally therein. The evidence on record placed before the court by the plaintiff would show that though he contended in the plaint and his evidence about his right over the suit schedule property, there is no acceptable evidence to show the identification of the property claimed by him, muchless the suit schedule property where exactly it is located. So also absolutely there is no acceptable 51 evidence to show the property claimed by defendant No. 5 and 6, i.e., site No. 115 is nearby the suit schedule property. Admittedly the records would show that the plaintiff to prove his stand that the defendant No. 5 and 6 have encroached the north western portion of the suit schedule property shown by the letters "EBGF" as shown in the annexed sketch he has not made any application to appoint Commissioner to prove his stand and identification of the property as claimed by him. So also the plaintiff has not made any attempt to examine his erstwhile owner Raghuram Reddy and his General Power of Attorney holder Achutha Reddy and A.Babu Reddy before the court. When that would be the case and when absolutely there is no acceptable evidence with regard to the identification of the property and to show where the construction put up by defendant No. 5 and 6 is the north western portion of the suit schedule property 52 whatever contention taken by the plaintiff cannot be accepted.
(22) Upon perusal of the pleadings of the parties and the evidence of PW1 it would show that absolutely there is no much dispute with regard to the factum that the plaintiff herein filed O.S.No.8102/2006 against defendant No. 1 to 3 herein and admittedly the said suit was dismissed. So also it is an undisputed fact that being assailed by the same the plaintiff herein filed RFA No. 2097/2011 before the Hon'ble High Court of Karnataka and the said appeal was dismissed by the Hon'ble High Court of Karnataka as withdrawn without prejudice to the suit now filed by the plaintiff. The said fact is very evident from the certified copy of the order passed in the above referred appeal at Ex.P9. So also upon perusal of the rival pleadings of the parties it would show that absolutely there is no much dispute 53 with regard to the factum of defendant No. 5 and 6 filed O.S.No.27211/2011 seeking the relief of permanent injunction and also it is an undisputed fact that wherein they have obtained "status-quo" order. The very affidavit evidence filed by PW1 at para No. 15 would show that he moved an application in the above referred suit seeking direction for implementation of the "status-quo" order and the said application came to be dismissed. PW1 himself in the said para has stated that after lapse of sometime defendant No. 5 and 6 put up construction of ACC sheet roofed house in and over the north western portion of the suit schedule property in the second week of November 2016. So also in the said para he has stated that the above referred suit was came to be dismissed on 25.10.2018 and consequently the "status- quo" order has come to an end. The most important aspect to be taken note of here is that the suit filed by 54 the plaintiff in O.S.No.8102/2006 was dismissed and even RFA filed by him as per Ex.P9 was dismissed as withdrawn. So also in the suit filed by defendant No. 5 and 6 against the plaintiff herein as referred above obtained "status-quo" order and the said suit was also came to be dismissed and in the meanwhile as admitted by the plaintiff himself in para No. 15 of his affidavit evidence would show that defendant No. 5 and 6 have completed the construction in the north western portion of the suit schedule property. The point to be taken note of here is that though the plaintiff throughout in his plaint and evidence contending that defendant No. 5 and 6 are in illegal possession of north western portion of the suit schedule property which is shown in the sketch by letters as "EBGF", but to prove the said factum absolutely there is no acceptable evidence. So also as it is already stated above the measurement of the property claimed 55 by the plaintiff and defendant No. 5 are totally different. So also the very document produced by the plaintiff at Ex.P14, i.e., General Power of Attorney would show that wherein at schedule A to D nowhere nearby the sites mentioned in the said schedule site No. 115 claimed by defendant No. 5 and 6 is located. As it is already stated above to prove the factum of alleged contention of plaintiff, i.e., north western portion of suit schedule property encroached by defendant No. 5 and 6 neither he examined his erstwhile owner Raghuram Reddy nor his General Power of Attorney holder Achutha Reddy and A.Babu Reddy. So also to prove the factum of illegal construction and possession by defendant No. 5 and 6 in the alleged north western portion of the suit schedule property no acceptable evidence has been placed before the court either by appointing the Commissioner nor by examining the witnesses as stated 56 above. Basically the evidence placed before the court by the plaintiff would clearly shows that he has failed to identify where exactly his property is located. As it is already stated above to seek the relief of mandatory injunction the property must be definite and identifiable, but in the present case the plaintiff has failed to prove the said aspect. The learned counsel for the plaintiff contended that the oral and documentary evidence of PW1 remained unchallenged and also there is no evidence on defendant No. 5 side to prove the stand taken by him in his written statement, as such he prays to decree the suit. The point to be taken note of here is that merely defendants placed exparte or the defendants have not entered the witness box is not a ground to decree the suit of the plaintiff. When the plaintiff has come up with the suit seeking certain kind of reliefs he must and should establish his case by placing acceptable oral 57 and documentary evidence. In one word it can be said that the plaintiff has to stand on his own leg, but not on the weakness of either side, i.e., defendants. Absolutely there is no acceptable evidence to believe the stand taken by the plaintiff in the present suit. The overall oral and documentary evidence on record would clearly shows that the plaintiff has failed to prove issue No. 1 and 4. In this case defendant No. 5 filed his written statement contending that he along with defendant No. 6 purchased property No. 115, assessment No. 15 and 68/1, new BMP 'B' form property No. 55 from 4 th defendant under sale deed dated 21.11.2011 and the said property is entirely different from the suit schedule property or any portion thereof. Though defendant No. 5 has contended like so, but he has not lead evidence to prove the said aspect as because during the pendency of the suit he was died. Under such circumstances and in the 58 absence of evidence to prove his stand it is needless to say that the defendant No. 5 has failed to prove additional issue No.1. As it is already stated above basically the plaintiff has failed to prove his case. When that would be the case and since there is no evidence on defendant No. 5 side is not a ground to accept the contention of the plaintiff taken by him in the present suit. For the foregoing reasons and discussions issue No. 1 to 4 and additional issue No. 1 are answered in the Negative.
(23) Issue No. 5 and 6: In view of my detailed discussions in the above issues the plaintiff is not entitled for the relief of declaration, possession of "EBGF" portion, mandatory injunction and permanent injunction. Accordingly issue No.5 and 6 are answered in the Negative.
59(24) Issue No.7: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed No order as to cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 18 th day of December 2019.) (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - G.Venkataramaiah Witness examined for the defendant/s :
Nil 60 Documents marked for the plaintiff/s :
Ex.P1 - Registered sale deed dated 23.08.1995
Ex.P2 - Tax receipt
Ex.P3 - Two DD Register extracts
Ex.P4 - Form No. B
Ex.P5 - Tax receipt
Ex.P6 - Paper publication
Ex.P7 - 19 Photos and 1 CD
Ex.P8 - Photo bill
Ex.P9 - Certified copy of orders in
RFA No.2097/2011
Ex.P10 - Certified copy of sale deed dated
23.05.2006
Ex.P11 - Certified copy of corrected sale deed
dated 21.11.2011
Ex.P12 - certified copy of sale deed dated
21.11.2011
Ex.P13 - Letter given by Sub-Registrar office
Ex.P14 - GPA extract obtained by RTI
Documents marked for the defendant/s :
Nil (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, 61 BANGALORE.
Judgment pronounced in the open
court (vide separate detailed
Judgment)
ORDER
The suit of the plaintiff is
hereby dismissed
No order as to cost.
Draw decree accordingly.
62
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
63