Bangalore District Court
Sri.Syed Nizamuddin vs The Bruhat Bangaluru on 14 December, 2021
IN THE COURT OF LXXIII ADDL.CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BANGALURU.
(CCH.74)
PRESENT:
Sri.Yamanappa Bammanagi, B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge,
Mayohall Unit, Bangaluru.
Dated this the 14th day of December, 2021.
O.S. No.26310/2014
Plaintiff: Sri.Syed Nizamuddin,
S/o.Late.Sri.Syed Jaffer Saheb,
aged about 57 years,
R/at.No.96/1, 1st Main,
10th Cross, Ward No.128,
Gangadonahally,
Bangaluru-560039.
(By Sri.C.S.Hashim Saeed - Adv.)
V/S
Defendants: 1. The Bruhat Bangaluru
Mahanagara Palike,
Rep.by its Commissioner,
N.R.Road, Head Office,
Bangaluru-560001.
2. The Assistant Executive
Engineer,
Bruhat Bangaluru
Mahanagara Palike,
Ward No. 128,
2
O.S. No.26310/2014
Chandralayout Sub-Division
(Govindarajanagara),
4th Main, M.C.Layout,
Vijayanagara, Bangaluru-40.
3. The Assistant Engineer,
Bruhat Bangaluru
Mahanagara Palike,
Ward No. 128, Nagarabhavi,
Bangaluru-560040.
4. The Assistant Executive
Engineer,
Bruhat Bangaluru
Mahanagara Palike,
Attiguppe, Ward No.132,
Bangaluru-560040.
5. The Assistant Engineer,
Bruhat Bangaluru
Mahanagara Palike,
Ward No. 132, (Attiguppe Ward),
Vijayanagara, Bangaluru-40.
(By Sri.H.Devendrappa - Adv.)
Date of Institution of the suit 03.09.2014
Nature of the (Suit or pro-note,
suit for declaration and
INJUNCTION SUIT
possession, suit for injunction,
etc.)
Date of the commencement of
06.04.2015
recording of the Evidence.
3
O.S. No.26310/2014
Date on which the Judgment was
14.12.2021
pronounced.
Year/s Month/s Day/s
Total duration 07 03 11
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bangaluru. (CCH-74)
JUDGMENT
The plaintiff has filed this suit for permanent injunction against the defendants restraining them from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property and restraining them from dispossessing the plaintiff from suit schedule property, further restraining them from demolishing any portion of suit schedule property.
2. Brief facts of the plaintiff's case:
It is specific case of the plaintiff that, the immovable property comes under jurisdiction of BBMP, Ward No.128 (Old Ward No.39), bearing No.96/1, situated at Joseph 4 O.S. No.26310/2014 Nagar, Gangondanahalli Main Road, Bangaluru, thereafter called as Lakshminarasimhapura, Yeshwanthpura Hobli, Bangaluru North Taluk, Bangaluru, measuring East-West:
47 feet, North to South: 40 feet, totally measuring 658 sq.ft., which is hereinafter called as a suit property.
Further it is the case of the plaintiff that suit property originally belongs to one G.Krishnamurthy, said G.Krishnamurthy sold the suit property to M.Joseph under registered sale deed dated 29.3.1973. Thereafter, all revenue records transferred in the name of M.Joseph and Joseph was in peaceful possession and enjoyment of the suit schedule property. On 21.3.1991 said M.Joseph had agreed to sell the suit property to the plaintiff for consideration of Rs.15,000/- and executed agreement of sale. Out of sale consideration, the plaintiff has paid advance amount of Rs.10,000/- and delivered vacant possession of the suit property to the plaintiff. Since 21.3.1991 till today the plaintiff is in possession and 5 O.S. No.26310/2014 enjoyment of the suit schedule property. Thereafter, on 25.6.1995 said Joseph died leaving behind his wife and son, who are successor of the properties left by deceased M.Joseph including the suit property and thereafter, Kempamma, W/o.Joseph, died on 17.8.2009. During her lifetime said Kempamma has executed a registered gift deed dated 25.6.2004 in favour of her son J.Cheluvaraju.
After death of M.Joseph and his wife Kempamma, the Cheluvaraju become absolute owner of the suit property by virtue of gift deed executed by his mother. Hence, Cheluvaraju has sold the suit property in favour of the plaintiff by executing registered sale deed dated 12.9.2013. Thus, the plaintiff become absolute owner and in possession of the suit schedule property and all revenue records transferred in the name of plaintiff. Thereafter, the plaintiff obtained sanction plan, permission from the defendants for construction of building and constructed building in accordance with sanction plan. Thereafter, the 6 O.S. No.26310/2014 suit schedule property has water connection, sanitary connection, electricity connection from the competent authority and now the plaintiff is in possession and enjoyment of the suit schedule property with his family members.
Such being the fact, on 20.8.2014 at about 10.30 a.m. the officials of the defendant had tried to interfere with plaintiff's peaceful possession of the suit property and threatened to demolish the suit building and threatened to dispossess the plaintiff from the suit schedule property, thereafter the plaintiff had approached jurisdictional police, but police authority has advised the plaintiff to approach the civil court, since dispute is in civil nature. Hence, the plaintiff had approached the court for the reliefs sought in the plaint.
3. In pursuance of the suit summons, the defendants appeared through counsel and filed written statement. The defendants contended that, the title of the 7 O.S. No.26310/2014 plaintiff and possession of the plaintiff over the suit schedule property is unlawful possession and hence the defendants have issued notice to the plaintiff to produce the document for establishing the legal title and possession of the plaintiff over the suit schedule property. Further defendant No.2 contended in the written statement that defendant No.2 has received complaint from general public of the area, complaining that the plaintiff herein has taken up construction work on the CA site (park) formed in the layout by Bangaluru City Corporation Employees Housing Co-operative Society Layout, the second defendant sought the layout plan from BDA dated 26.7.2014, in response to the same the BDA has furnished copy of the layout plan of the Bangaluru City Corporation Employees Housing Building Co-operative Society Ltd., layout formed in Sy.No.44/1, 2, 3, 49/1, 2, 3 and 49/7 of Deeviting Ramanahalli Village and Sy.No.11, 12/1, 2, 3 and 13/1, 2, 14 and 18 of Gangondanahalli Village. After receiving the 8 O.S. No.26310/2014 complaint from the general public the BDA had inspected spot and found that the plaintiff has proceeding with construction in park No.4 of the approved layout plan of Bangaluru City Corporation Employees House Building Co- operative Society Ltd., and also found that BMP has provided handing over layout dated 6.10.2001 and requested the BBMP to take steps against the plaintiff.
4. Further defendant No.2 has sought for particulars from Asst. Revenue Officer, Chandra Layout Sub-Division, BBMP, pertaining to the suit property and thereafter, the defendant No.2 has issued notice to the plaintiff on 28.7.2014, calling upon him to produce the documents along with approved plan as the general public made complaint that he was putting construction in CA (park) area and said letters were not claimed by the plaintiff. The defendant No.2 has also issued one more notice on 18.8.2014 to the plaintiff by RPAD, which was served on the plaintiff. On 30.7.2014 the plaintiff has submitted 9 O.S. No.26310/2014 explanation to the defendant No.2 to the effect that there are 4 parks and what action the defendant No.2 has taken for Sl.No.1 to 4 as of now for the property No.96/1.
5. Further the defendants have taken defence that suit filed by the plaintiff in the present form is not maintainable, since defendants have initiated action against the plaintiff u/S 321 of KMC Act, hence suit filed by the plaintiff is not maintainable before this court and plaintiff has to approach KAT as per the provisions of KMC Act. With this, they prayed for dismissal of the suit.
6. Initially this suit is filed before the CCH-22, in view of the Notification No.ADM-I(A)413/2018, dated 31.7.2018, this case has been transferred to this court as per order dated 10.8.2018 from CCH-22. And suit was called out in this court for the first time on 16.8.2018.
7. On basis of the pleadings of the parties, my learned Predecessor has framed the following:-
ISSUES 10 O.S. No.26310/2014
1. Whether the plaintiff proves that, he was in lawful possession and enjoyment of the suit schedule property, by constructing the building, as per the Building Bye-laws?
2. Whether the plaintiff proves that, defendants are trying to interfere with the plaintiff's peaceful possession and enjoyment of the suit schedule property, without following the procedure as contemplated under Sec.321 of KMC Act?
3. Whether the plaintiff is entitled for relief of Permanent Injunction?
4. What decree or order?
8. In order to prove his case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.120 and P.W.1 was cross-examined by the learned counsel for the defendants and the authorised signatory of defendants is examined as D.W.1 and got marked Ex.D.1 to D.15. 11
O.S. No.26310/2014 D.W.1 was cross-examined by the learned counsel for the plaintiff and posted for argument.
9. Heard argument on both side. The learned counsel for the plaintiff has filed written argument.
10. I have appreciated oral and documentary evidence led by both plaintiff and defendants and material placed before the court and considered the argument of the learned counsel for the parties.
11. My answer to the above issues are as follows:-
Issue No.1: In the Affirmative, Issue No.2: In the Affirmative, Issue No.3: In the Affirmative, Issue No.4: As per the final order, for the following:-
REASONS
12. ISSUE No.1: In order to prove his case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to Ex.P.120. The P.W.1 is examined by filing affidavit in lieu 12 O.S. No.26310/2014 of examination in chief, reiterating the averments of the plaint. P.W.1 deposed before the court that, the immovable property comes under jurisdiction of BBMP, Ward No.128 (Old Ward No.39), bearing No.96/1, situated at Joseph Nagar, Gangondanahalli Main Road, Bangaluru, thereafter called as Lakshminarasimhapura, Yeshwanthpura Hobli, Bangaluru North Taluk, Bangaluru, measuring East-West:
47 feet, North to South: 40 feet, totally measuring 658 sq.ft., which is hereinafter called as a suit property.
13. P.W.1 further deposed that suit property originally belongs to one G.Krishnamurthy, said G.Krishnamurthy sold the suit property to M.Joseph under registered sale deed dated 29.3.1973. Thereafter, all revenue records transferred in the name of M.Joseph and Joseph was in peaceful possession and enjoyment of the suit schedule property. On 21.3.1991 said M.Joseph had agreed to sell the suit property to the plaintiff for consideration of Rs.15,000/- and executed agreement of 13 O.S. No.26310/2014 sale. Out of sale consideration, the plaintiff has paid advance amount of Rs.10,000/- and delivered vacant possession of the suit property to the plaintiff. Since 21.3.1991 till today the plaintiff is in possession and enjoyment of the suit schedule property. Thereafter, on 25.6.1995 said Joseph died leaving behind his wife and son who are successor of the property left by deceased M.Joseph including the suit property and thereafter, Kempamma, W/o.Joseph died on 17.8.2009. During her lifetime said Kempamma has executed a registered gift deed dated 25.6.2004 in favour of her son J.Cheluvaraju.
14. P.W.1 further deposed that after death of M.Joseph and his wife Kempamma, the Cheluvaraju become absolute owner of the suit property by virtue of gift deed executed by his mother. Hence, Cheluvaraju has sold the suit property in favour of the plaintiff by executing registered sale deed dated 12.9.2013. Thus, the plaintiff become absolute owner and in possession of the suit 14 O.S. No.26310/2014 schedule property and all revenue records transferred in the name of plaintiff. Thereafter, the plaintiff obtained sanction plan, permission from the defendants for construction of building and constructed building in accordance with sanction plan. Thereafter, the suit schedule property has water connection, sanitary connection, electricity connection from the competent authority and now the plaintiff is in possession and enjoyment of the suit schedule property with his family members.
15. P.W.1 further deposed that, on 20.8.2014 at about 10.30 a.m. the officials of the defendant had tried to interfere with plaintiff's peaceful possession of the suit property and threatened to demolish the suit building and threatened to dispossess the plaintiff from the suit schedule property, thereafter the plaintiff had approached jurisdictional police, but police authority has advised the 15 O.S. No.26310/2014 plaintiff to approach the civil court, since dispute is in civil nature. Hence, this suit.
16. In support of oral evidence, the plaintiff has produced as many as 120 documents, which have been marked at Ex.P.1 to P.120. Ex.P.1 is the unregistered agreement dated 21.3.1991, Ex.P.2 is the original absolute registered sale deed executed by Mr.J.Cheluvaraju in favour of the plaintiff in respect of suit schedule property, Ex.P.3 is the license issued by the defendants in favour of the plaintiff in respect of suit schedule property, Ex.P.4 to P.7 are the receipts issued by the BBMP, Ex.P.8 is the approved plan, Ex.P.9 is the khatha, Ex.P.10 to P.17 are the 8 tax-paid receipts, Ex.P.18 is the khatha certificate, Ex.P.19 is the khatha extract, Ex.P.20 is the consumer card, Ex.P.21 is the application given to the BWSSB.
17. Ex.P.22 is the true copy of sanction letter, Ex.P.23 is the Encumbrance, Ex.P.24 to P.29 are the khatha certificate, khatha extract and 4 tax-paid receipts, 16 O.S. No.26310/2014 Ex.P.30 to P.33 are the electricity bills and receipts, Ex.P.34 to 49 are the receipts, electricity bills, demand notice issued by BESCOM and 13 electricity bills, Ex.P.50 to P.68 are the 16 receipts, Ex.P.69 to 73 are the demand notice issued by the BESCOM and 4 demand notices issued by the BWSSB, Ex.P.74 is the ID card issued by the Election Commission of India, Ex.P.75 to P.91 are the 17 photos, Ex.P.92 is the CD, Ex.P.93 is the application form- A, Ex.P.94 to 99 are the letters of AEE of BBMP, Form No.A, letter of AEE, copy of Form No.A, Form No.A and Ex.P.100 to 120 are the letters issued by the BBMP, copies of Form No.A, copy of application u/S 6 (1) of RTI Act, endorsements, certified copy of sale deed.
18. The defendant authority had examined its authorized person as D.W.1. D.W.1 deposed before the court that plaintiff has created documents and possession of the plaintiff is not legal possession and title deeds produced by the plaintiff are created documents, hence the 17 O.S. No.26310/2014 possession of the plaintiff is not lawful possession and the vendor of the plaintiff has no transferable title over the suit schedule property and hence, plaintiff get no right, interest over the suit schedule property. Ex.P.2 is the registered sale deed executed by the vendor of the plaintiff in respect of suit schedule property in favour of the plaintiff.
19. Ex.P.2 Registered Sale Deed has got presumptive value under Section 17 of Registration Act. Thereafter, Ex.P.3 to P.117 are stands in the name of plaintiff. All revenue records and registered sale deed clearly establishes the title and possession of the suit schedule property. Further the defendants have not denied the possession of the plaintiff over the suit schedule property at the time of filing of the suit.
20. The case of the defendants is that the vendor of the plaintiff has no transferable title over the suit schedule property to execute registered sale deed in favour of the plaintiff under Ex.P.2. Hence, plaintiff get no title and 18 O.S. No.26310/2014 interest over the suit schedule property and possession of the plaintiff over the suit schedule property is illegal possession and liable to be dispossessed the plaintiff from the suit schedule property.
21. I have gone through the oral and documentary evidence led by the plaintiff and defendants, it is clear that the defendants have not disputed the possession of the plaintiff over the suit schedule property as on the date of suit. I have carefully perused Ex.P.1 to P.3, P.18 and P.19 Unregistered Agreement of Sale, Absolute Registered Sale Deed, License, Khatha Certificate, Khatha Extract and the title deed of sale and all revenue records have got presumptive value u/S 17 of Indian Registration Act and u/S 35 of Indian Evidence Act respectively. Thus, the plaintiff has proved his title and possession over the suit schedule property.
22. The defence of the defendants is that the plaintiff got created the title deed and revenue records in respect of 19 O.S. No.26310/2014 suit schedule property, which are not creates any rights, interest over the suit schedule property. This defence is without any documentary evidence. Hence, defence of the defendants holds no good, because the registered sale deed prevails over all deeds and documents, which are produced by the defendant at Ex.D.1 to D.15. The defendants themselves have issued sanction plan, license and other necessary connection like water, etc.
23. Exs.P.1 to P.120 clearly establishes that plaintiff is the owner and in possession of the suit schedule property. Exs.P.3 to P.120 are the revenue entries made in respect of schedule property by the public servants while discharging their duty. Now it is relevant to extract the cross-examination of D.W.1 dated 29.9.2021, after 7 lines from top, which reads thus:
"It is true that, the plaintiff has obtained sanction plan and license for construction of house over the suit schedule property.20
O.S. No.26310/2014 Before issuing sanction plan and license, we usually verifying sale deed, khatha certificate and tax receipts. Before issuing sanction plan we used to issue notice."
24. Thus, the defendants authority admitted the fact that they have issued sanction plan to the plaintiff after verification of title deeds of the plaintiff and on basis of sanction plan the plaintiff has constructed residential house and residing in the suit schedule property along with his family members. On perusal of the said revenue records, I am of the opinion that, the plaintiff is in possession of the suit schedule property at the time of the filing of the suit as the revenue entries in respect of suit schedule property has got evidentiary value under the law. As per Sec.35 of the Indian evidence Act, the revenue entries have got evedentiary value. Sec.35 of Indian Evidence Act, which reads thus:
21
O.S. No.26310/2014 "35.Relevancy of entry in public [record or an electronic record] made in performance of duty.__ An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.
Editor's Note._The words "Fact", "Facts in issue" and 'Relevant"
are defined in Section 3 of this Act."
In support of my opinion I relied on the decision reported in ILR 2004 KAR.1074 in case of Naganna Vs. Shivanna. The lordship have held at Head Note-B thus:
"REBUTTAL EVIDENCE - entries in the ROR carries presumptive 22 O.S. No.26310/2014 value in law - if there is no convincing evidence to rebutt the legal presumption, lessor relief of injunction can be granted. But the declaration title cannot be granted."
Further relied on decision reported in AIR 2008 SC 901 in case of Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and Others. The lordship have held at Head Note-B reads thus:
"Evidence Act, (1 of 1872), Ss. 35, 114- revenue records- not document of title- it merely raises presumption of possession."
The lordship have discussed at Para-12 of the judgment, which reads thus:
"A revenue record is not a
document of title. It merely
raises a presumption in regard to possession. Presumption of possession and/or continuity 23 O.S. No.26310/2014 thereof both forward and backward can also be raised under Section 110 of the the Indian Evidence Act. The Courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind."
25. On careful perusal of the documentary and oral evidence of both the parties, it is clear that the plaintiff has established his possession over the suit schedule property at the time of filing of the suit. Hence, I answer issue No.1 in the Affirmative.
26. ISSUE No.2: It is specific defence of the defendants that defendant No.2 has received complaint from general public of the area, complaining that the plaintiff herein has taken up construction work on the CA site (park) formed in the layout by Bangaluru City Corporation Employees Housing Co-operative Society Layout, the second defendant sought the layout plan from 24 O.S. No.26310/2014 BDA dated 26.7.2014, in response to the same the BDA has furnished copy of the layout plan of the Bangaluru City Corporation Employees Housing Building Co-operative Society Ltd., layout formed in Sy.No.44/1, 2, 3, 49/1, 2, 3 and 49/7 of Deeviting Ramanahalli Village and Sy.No.11, 12/1, 2, 3 and 13/1, 2, 14 and 18 of Gangondanahalli Village. After receiving the complaint from the general public the BDA had inspected spot and found that the plaintiff has proceeding with construction in park No.4 of the approved layout plan of Bangaluru City Corporation Employees House Building Co-operative Society Ltd., and also found that BMP has provided handing over layout dated 6.10.2001 and requested the BBMP to take steps against the plaintiff.
27. Further defendant No.2 has sought for particulars from Asst. Revenue Officer, Chandra Layout Sub-Division, BBMP, pertaining to the suit property and thereafter, the defendant No.2 has issued notice to the 25 O.S. No.26310/2014 plaintiff on 28.7.2014 calling upon him to produce the documents along with approved plan as the general public made complaint that he was putting construction in CA (park) area and said letters were not claimed by the plaintiff. The defendant No.2 has also issued one more notice on 18.8.2014 to the plaintiff by RPAD, which was served on the plaintiff. On 30.7.2014 the plaintiff has submitted explanation to the defendant No.2 to the effect that there are 4 parks and what action the defendant No.2 has taken for Sl.No.1 to 4 as of now for the property No.96/1.
28. Further the defendants have taken defence that suit filed by the plaintiff in the present form is not maintainable, since defendants have initiated action against the plaintiff u/S 321 of KMC Act, hence suit filed by the plaintiff is not maintainable before this court and plaintiff has to approach KAT as per the provisions of KMC Act.
26
O.S. No.26310/2014
29. I have gone through the Ex.D.1 to D.15. Ex.D.2 is the summons dated 28.7.2014 issued by the defendants to the plaintiff calling upon him to produce sanction plan issued by the defendants to the plaintiff within 3 days. But, on careful perusal of the Ex.D.2 it is clear that defendants have called upon the plaintiff to produce the sanction plan issued by it within 3 days from the date of receipt of the notice, in case if plaintiff failed to produce the same, then the defendants will initiate action against the plaintiff. Thus, it is not an notice u/S 308 and 321 of KMC Act. Ex.D.1 to D.15 does not establishes the action initiated by the defendants u/S 321 of KMC Act.
30. On careful perusal of the oral and documentary evidence of defendants, it is clear that, the defendants have interfered with the plaintiff's peaceful possession and enjoyment of the suit schedule property without due process of law. Ex.D.2 to D.9 clearly establishes the act of 27 O.S. No.26310/2014 interference of defendants with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
31. Now it is relevant to appreciate the cross- examination of D.W.1 dated 29.9.2021. D.W.1 is Asst. Engineer of defendants authority, he has produced Ex.P.6 True Copy of Layout Plan and contended that the plaintiff has constructed house in the sites allotted to the society. Now it is relevant to extract relevant portion of cross- examination of D.W.1 dated 29.9.2021, after 2 lines from top, which reads thus:
"I have gone through the written statement of defendant in this suit. I have instructed to my counsel to draft my chief-
examination. Suit schedule
property is situated at
Gangondanahalli, Yeshwanthpur Hobli, Bangaluru."
32. Thus, the defendants have admitted the case of the plaintiff that suit schedule property is situated at 28 O.S. No.26310/2014 Gangondanahalli, Yeshwanthpur Hobli. But, the defendants have produced Ex.P.6 showing the park in which, the plaintiff had encroached and constructed the house in the property left for park. Now it is relevant to extract the cross-examination of D.W.1, dated 29.9.2021, at page-9, in 2nd para, after 6 lines from bottom, which reads thus:
"Ex.D.6 is in respect of property come within the purview of Gangondanahalli Village, Kengeri Hobli."
33. Now it is clear that in the evidence extracted supra D.W.1 has admitted the case of the plaintiff that suit schedule property is situated in Gangondanahalli Village, which comes in Yeshwanthpur Hobli. But, D.W.1 admitted that Ex.P.6 is in respect of Kengeri Hobli.
34. Further it is relevant to extract the cross- examination of D.W.1, dated 29.9.2021, page-10, in 2 nd para, after 6 lines from top, which reads thus: 29
O.S. No.26310/2014 "It is true that if the construction is constructed after taking sanction plan and permission from the BBMP, the construction is not an illegal construction."
35. Thus, the defendants does not know the exact place where suit property is situated. Further it is clear from the evidence of the defendants that after admitting the fact that they have issued sanction plan to the plaintiff after verification of title deeds and revenue records, and spot. It is also clear from the evidence of defendants that plaintiff has constructed house in accordance with sanction plan issued by the defendants. Under such circumstances, it is clear that, the defendants had interfered in peaceful possession and enjoyment of the suit schedule property.
36. Once the plaintiff has proved that the act of defendants clearly establishes their intention to interfere with plaintiff's peaceful possession and enjoyment of the suit schedule property, then it can be safely held that the 30 O.S. No.26310/2014 defendants have interfered with plaintiff's peaceful possession and enjoyment of the suit schedule property. In support of my opinion I relied on the decision reported in ILR 1978 Page-1560 in case of Gopal.M.Hegde and others and U.F.M.Narasimha Ganap Bhat and others. The lordships have held in the decision thus:
"When the plaintiff proves the intention of the defendants to do an act or existence of the act, if completed, gives ground for action and there is a foundation for exercise of jurisdiction."
37. It is well settled law that even the possession of the trespasser cannot be dispossessed without due process of law as held in the decision reported in ILR 1999 KAR 1451 in case of Sathyam @ Ramaiah & others v/s Karnataka Milk Federation Co-operative Ltd. The lordships held thus:
"CIVIL PROCEDURE CODE 1908 (Central Act No.5 of 1908) ORDER 31 O.S. No.26310/2014 XXXIX Rules 1 & 2. Whether a Trespasser or a person who has no legal title but is in possession of the land is entitled to get Temporary Injunction? HELD -
Relying on PURAN SINGH & OTHERS vs STATE OF PUNJAB AIR 1975 SUPREME COURT 1974 the High Court held that where a Trespasser is in Settled Possession of the Land, is entitled to resist or defend his possession even as against the rightful owner who tries to dispossess him.
The test that has been considered in Puran Singh's case
- (AIR 1975 SC 1674) was to determine the quality of settled possession, in the case of cultivable land, would be whether or not the trespasser, after having taken possession, had grown any crop and if any such crop had been grown by the trespasser then, even the true 32 O.S. No.26310/2014 onwer has no right to destroy the crops grown by the trespasser and to take forcible possession illegally, either it may be for a longer period or for some period.
In the cases on hand, it is seen that some of the purchasers have already constructed houses and they are residing there. When that being the position, it cannot be said that they are not in settled possession at this juncture, whether they may be in settled possession, or whether they have claimed possession, on the basis of the alleged sale deeds in their favour from the vendor, which defendant alleges to be illegal and even if so, they cannot be thrown away or ousted from possession of suit properties by the true owner, except in accordance with the procedure established by law. I do not express any opinion, nor I should be taken to by expressing any 33 O.S. No.26310/2014 opinion on the question of validity or legality of sale sale deeds of sale transaction, nor on any question in issue between the parties for trial or decision in the suit. If, that is so, even observations are or have been made are tentative and permitted extent and are of only for the purpose of dealing with the matter of temporary injunction and appeal arising from that interlocutory matter. The observations made herein during the course of this order should not come in the way of the trial Court while it is trying or deciding the cases and issues arising in the suit on its own merits. The finding of the Court below that the plaintiffs- appellants have purchased the suit properties, they are in actual possession and they have invested lakhs of rupees for putting up structures after the 34 O.S. No.26310/2014 purchases made by them and they have also formed roads and obtained electricity connections and other amenities from various Corporations etc., clearly means that the act of possession was not in concealment. The Court below also found that there is and has been laxity on the part of the officials. So, in my view, this is not a case in which it could be said that no temporary injunction can be granted as appellants are 'trespassers'."
38. In the case on hand, plaintiff is in possession and enjoyment of the property by virtue of registered sale deed, which has got presumptive value under the Indian Registration Act. Under such circumstances, on perusal of the oral and documentary evidence of plaintiff and on admitted fact that the plaintiff is in possession of the suit schedule property, this court is of opinion that the plaintiff has proved his possession over the suit schedule property 35 O.S. No.26310/2014 at the time of filing of the suit by producing cogent evidence. In support of my finding I relied on the decision reported in 2009 (5) SCC 713 in case of Vimalchand Jain v/s Ramakant Jadoo. The lordships have held in the said decision that:
"A registered deed of sale carries presumption that the transaction was a genuine one, if, the execution of sale deed is proved, onus is on the other side to prove that the deed was not executed and it was a sham transaction. Thus burden to prove that it is not a genuine lies on the person who alleges that it is not so."
39. Under such circumstances, it can be safely held that the plaintiff has proved the act of the defendants, clearly shows that the defendants have interfered in the peaceful possession and enjoyment of the suit schedule property. Thus, plaintiff has proved the interference of 36 O.S. No.26310/2014 defendants in his peaceful possession and enjoyment of the suit schedule property by producing cogent evidence.
40. Considering the facts and circumstances of the case and defence of the defendants it can be held that the plaintiff has proved the interference of the defendants. With these reasons, I am of the opinion that the plaintiff has proved this issue with cogent evidence. Hence, I answer issue No.2 in the Affirmative.
41. ISSUE No.3: When plaintiff has proved his title and possession over the suit schedule property by producing registered sale deed and revenue records and there is no documents produced by the defendants, which creates cloud over the title of the plaintiff in respect of suit schedule property, under such circumstances, the plaintiff is entitled for equitable relief of injunction to protect his lawful possession from the defendants as held in the decision reported in AIR 2008 SC 2033 in case of 37 O.S. No.26310/2014 Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
The lordships have held in the decision thus:
"13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not 38 O.S. No.26310/2014 entitled to an injunction against the rightful owner.
13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a 39 O.S. No.26310/2014 suit for declaration, possession and injunction.
Where Plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant a suit for an injunction simpliciter will lie."
With this appreciation of oral and documentary evidence led by the parties, reasons assigned and relying on the decisions referred supra, I hold that plaintiff is entitled for the equitable relief of injunction against the defendants. Hence, I answer issue No.3 in the Affirmative.
42. ISSUE No.4: In view of the discussion made on Issue Nos.1 to 3, I proceed to pass the following:-
ORDER The suit filed by the plaintiff is hereby decreed.
Consequently, the defendants
and their officials are hereby,
by way of permanent
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injunction, restrained from
interfering with plaintiff's
peaceful possession and
enjoyment of the suit schedule
property, further defendants
restrained from dispossessing
the plaintiff from the suit
schedule property, and
restrained the defendants from
demolishing any portion of
suit schedule property without
procedure established by law.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 14th day of December, 2021).
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) SUIT SCHEDULE PROPERTY 41 O.S. No.26310/2014 All that piece and parcel of an immovable property comes under the jurisdiction of Bruhat Bangaluru Mahanagar Palike Ward No. 128 (old ward No.39), property bearing it No.96/1, measuring East to West 47 feet and North to South 14 feet, totally measuring 658 square feet situated at Gangodanahalli (Lawyerpalya), Yeshwanthpur Hobli, Bangaluru North Taluk, Bangaluru and bounded on:
East by: Main Road;
West by: Others property; North by: Bangaluru one; and on South by: Remaining portion of same property.
(Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) ANNEXURES List of witness examined for the plaintiff's side:
P.W.1 - Sri.Syed Nizamuddin List of documents exhibited for the plaintiff's side:
Ex.P.1 - Unregistered agreement
Ex.P.2 - Absolute sale deed
Ex.P.3 - License
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O.S. No.26310/2014
Ex.P.4
to 7 - 4 receipts issued by BBMP
Ex.P.8 - Approved Plan
Ex.P.9 - Khata
Ex.P.10
to 17 - 8 Tax paid receipts
Ex.P.18 - Khata Certificate
Ex.P.19 - Khata Extract
Ex.P.20 - Consumer card issued by BWSSB Ex.P.21 - Application given to BWSSB Ex.P.22 - True copy of Sanction Letter issued by BWSSB Ex.P.23 - Encumbrance Ex.P.24 - Khata Certificate Ex.P.25 - Khata Extract Ex.P.26 to 29 - 4 tax paid receipts Ex.P.30 & 31 - 2 Electricity bill Ex.P.32 & 33 - 2 receipts Ex.P.34 - Receipt issued by Bangaluru one Ex.P.35 - Electricity bill Ex.P.36 - Demand notice issued by BESCOM Ex.P.37 to 49 - 13 Electricity bills Ex.P.50 to 68 - 16 receipts Ex.P.69 - Demand notice issued by BESCOM Ex.P.70 to 73 - 4 Demand notices issued by BWSSB Ex.P.74 - I.D. Card issued by Election Commission of India Ex.P.75 to 91 - 17 Photos Ex.P.92 - C.D. 43 O.S. No.26310/2014 Ex.P.93 - Application form 'A' Ex.P.94 - Copy of form 'A' Ex.P.95 - Letter of AEE of BBMP addressed to AE of BBMP Ex.P.96 - Form 'A' Ex.P.97 - Letter of AEE of BBMP addressed to AE of BBMP Ex.P.98 - Copy of Form 'A' Ex.P.99 - Form 'A' Ex.P.100 - Letter issued by BBMP Ex.P.101 - Copy of Form 'A' Ex.P.102 - Letter issued by BBMP Ex.P.103 - Letter issued by BBMP Ex.P.104 - Copy of Form 'A' Ex.P.105 - Copy of application u/sec. 6(1) of RTI Act Ex.P.106 - Letter issued by BBMP Ex.P.107 - Form 'A' Ex.P.108 - Letter issued by BBMP Ex.P.109 - Receipt issued by BBMP Ex.P.110 & 111 - 2 Notices issued by BBMP Ex.P.112 - True copy of application for Khatha Ex.P.113 - Copy of application u/s. 6 (1) of RTI Act Ex.P.114 - Endorsement issued by BBMP Ex.P.115 - Endorsement Ex.P.116 - Copy of Form 'A' Ex.P.117 - Endorsement issued by BBMP Ex.P.118 - Certified copy of sale deed Ex.P.119 - Copy of Form 'A' Ex.P.120 - 3 application filed under RTI Act List of witness examined for the defendants' side:
D.W.1 - Sri.Alok Shetty List of documents exhibited for the defendants' side:
44 O.S. No.26310/2014 Ex.D.1 - Authorization letter Ex.D.2 - True copy of summons dated:28.07.2014 Ex.D.3 - True copy of the notice dated:26.07.2014 Ex.D.4 - True copy of application Ex.D.5 - Certified copy of the letter of handing over possession Ex.D.6 - True copy of the layout plan (marked subject to objection) Ex.D.7 - True copy of the key map Ex.D.8 - True copy of letter dated: 26.07.2014 Ex.D.9 - True copy of letter dated: 30.07.2014 Ex.D.10 - Tippani page No.3 to 5 Ex.D.11 - Estimation of chain link fencing to the property Ex.D.12 - Photo Ex.D.13, 13(a) to (e) - 6 Photos Ex.D.14 - CD Ex.D.15 - Original sanction plan (Yamanappa Bammanagi) 73rd Addl. CC & SJ, M.H.Unit, Bangaluru. (CCH-74) 45 O.S. No.26310/2014 46 O.S. No.26310/2014 47 O.S. No.26310/2014 48 O.S. No.26310/2014 49 O.S. No.26310/2014 50 O.S. No.26310/2014