Bangalore District Court
In : Kumari Divya vs Chikkananjundappa on 15 March, 2023
KABC010003412012
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXXI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-14) AT BENGALURU
Dated this the 15th day of March, 2023.
PRESENT:
Sri MOHAMMED KHAN M. PATHAN, B.Com.,LL.M.,
VIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.2785/2015
clubbed with
ORIGINAL SUIT NO.26221/2011
PLAINTIFF IN : Kumari Divya,
O.S.2785/2012 D/o. Srikantappa,
Aged about 22 years,
Residing at No.12,
1st Cross, S.V.G. Nagar,
Moodala Palya,
Bangalore - 560 072.
(By Sri G.H.N., Advocate)
-VERSUS-
DEFENDANTS : 1. Chikkananjundappa,
O.S.2785/2012 S/o. Late Munishamappa,
Aged about 65 years,
Since dead by his LR's.
1(a). Smt. Parvathmma,
W/o. Late Chikkananjundappa,
Aged about 55 years.
Cont'd..
-2- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
1(b). Praveen Kumar,
S/o. Late Chikkananjundappa,
Aged about 36 years.
1(c). Hemanthakumar,
S/o. Late Chikkananjundappa,
Aged about 32 years.
1(d). Smt. Pavithra,
W/o. Sunil Kumar,
D/o. Late Chikkananjundappa,
Aged about 34 years.
LRs 1(a) to 1(d) are
Residing at No.94,
Chikkananjundappa Layout,
1st Main Road, 2nd Cross,
near N.R.I Layout, Kalkere,
Horamavu Post,
Bangalore.
2. Puttappa,
S/o. Late Munishamappa,
Aged about 45 years.
3. Basvaraju,
S/o. Late Munishamappa,
Aged about 40 years.
4. M. Ramaiah,
S/o. Late Munivenkatappa,
Aged about 70 years.
Defendants No.2 to 4 are
Residing at Kalkere Village,
K.R. Puram Hobli,
Bangalore East Taluk,
Bangalore - 560 043.
5. B. Anjinappa,
S/o. Late Basappa,
Aged about 58 years,
Residing at No.54, Mallappa
Cont'd..
-3- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
Layout, Babusaab Palya,
Kalyananagar Post,
Bangalore - 560 043.
6. V. Raghu,
S/o. Venkateshappa,
Aged about 38 years,
Residing at Horamavru
Agara Village, K.R. Puram Hobli,
Bangalore East Taluk,
Bangalore - 560 043.
7. T.S. Srinivas,
S/o. Siddappa,
Aged about 48 years,
Residing at Channasandra
Village, K.R. Puram Hobli,
Bangalore East Taluk,
Bangalore - 560 043.
8. Srikantappa,
S/o. Late Siddappa,
Aged about 51 years,
Residing at Kalkere Village,
K.R. Puram Hobli,
Bangalore East Taluk.
(D.1(a) to (d), 2 and D.4 by Sri
K.S.,D.3:Ex-parte, D.5 by Sri S.S.,
D.6, D.7 by Sri H.V.R.K., and D.8 by
Sri N.R.R., Advocates)
---------------------------------------------------------------------
Date of Institution of the Suit : 13.04.2012
Nature of the Suit (Suit on : Injunction.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 22.07.2015
of recording of the evidence
Cont'd..
-4- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
Date on which the Judgment : 15.03.2023.
was pronounced
---------------------------------------------------------------------
Year/s Month/s Day/s
----------------------------------
Total duration : 10 years, 11months, 02 days.
---------------------------------------------------------------------
(MOHAMMED KHAN M. PATHAN)
XXXI Additional City Civil and
Sessions Judge, Bengaluru.
PLAINTIFF IN : Srikantappa,
O.S.26221/2011 S/o. Late Siddappa,
Aged about 51 years,
Residing at Kalkere Village,
K.R. Puram Hobli,
Bangalore East Taluk.
(By Sri T.Y.R.P., Advocate)
-VERSUS-
DEFENDANTS : 1. Chikkananjundappa,
O.S.26221/2011 S/o. Late Munishamappa,
Aged about 65 years,
Since dead by his LR's.
1(a). Smt. Parvathmma,
W/o. Late Chikkananjundappa,
Aged about 55 years.
1(b). Praveen Kumar,
S/o. Late Chikkananjundappa,
Aged about 36 years.
1(c). Hemanthakumar,
S/o. Late Chikkananjundappa,
Aged about 32 years.
1(d). Smt. Pavithra,
W/o. Sunil Kumar,`
D/o. Late Chikkananjundappa,
Aged about 34 years.
Cont'd..
-5- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
LRs 1(a) to 1(d) are
Residing at No.94,
Chikkananjundappa Layout,
1st Main Road, 2nd Cross,
near N.R.I Layout, Kalkere,
Horamavu Post,
Bangalore.
2. Puttappa,
S/o. Late Munishamappa,
Aged about 45 years.
3. Basvaraju,
S/o. Late Munishamappa,
Aged about 40 years.
4. M. Ramaiah,
S/o. Late Munivenkatappa,
Aged about 70 years.
Defendants No.2 to 4 are
Residing at Kalkere Village,
K.R. Puram Hobli,
Bangalore East Taluk,
Bangalore - 560 043.
5. B. Anjinappa,
S/o. Late Basappa,
Aged about 58 years,
Residing at No.54, Mallappa
Layout, Babusaab Palya,
Kalyananagar Post,
Bangalore - 560 043.
6. V. Raghu,
S/o. Venkateshappa,
Aged about 38 years,
Residing at Horamavru
Agara Village, K.R. Puram Hobli,
Bangalore East Taluk,
Bangalore - 560 043.
7. T.S. Srinivas,
S/o. Siddappa,
Aged about 48 years,
Cont'd..
-6- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
Residing at Channasandra
Village, K.R. Puram Hobli,
Bangalore East Taluk,
Bangalore - 560 043.
(D.1 to D.4 by Sri K.S.V.,
D.5, D.6 by C.V.S., Advocates
and D.7:Ex-parte)
---------------------------------------------------------------------
Date of Institution of the Suit : 18.07.2011
Nature of the Suit (Suit on : Injunction.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 22.07.2015
of recording of the evidence
Date on which the Judgment : 15.03.2023
was pronounced
---------------------------------------------------------------------
Year/s Month/s Day/s
----------------------------------
Total duration : 11years, 07months, 27days.
---------------------------------------------------------------------
(MOHAMMED KHAN M. PATHAN)
XXXI Additional City Civil and
Sessions Judge, Bengaluru.
COMMON JUDGMENT
The common judgment is passed in both the suits
as they are clubbed and common evidence is recorded.
In these two suits, suit schedule property is part of the
same Survey number and defendants are one and the
same. Hence, common evidence has been recorded in
Cont'd..
-7- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
O.S. No.2785/2012 in respect of these two suits and it
is decided to write common judgment in respect of these
two suits.
Suit in O.S. No.2785/2012 is filed seeking
Permanent injunction against the defendants No.1 to 7,
restraining them from interfering with the peaceful
possession and enjoyment of the plaintiff and the 8 th
defendant over the suit schedule property in any
manner and to grant such other reliefs.
2. Brief facts of plaintiff's case in O.S.
No.2785/2012 are as under -
The 8th defendant is the father of the plaintiff and
she is the only daughter of the 8th defendant. They
together constitute a Hindu Undivided Joint family as
they are Hindu by religion and since they are governed
by the Hindu Law and especially the Rules of Hindu
Mithakshara School. The 8th defendant has become
hostile towards the plaintiff as she did not concede tot
he dictates of 8th defendant and his wife Smt.
Gowaramma who is the mother of her in connection
Cont'd..
-8- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
with to marry the relative of the mother of her contrary
to the wishes of her. The 8th defendant is the kartha of
the joint family of her and the 8th defendant. The 8th
defendant is managing the joint family properties which
consists of the following properties:
(i). Wet land bearing Sy.No.133,
measuring 16 guntas of Kalkere Village,
K.R.Puram Hobli, Bangalore East Taluk.
(ii). Dry land in Sy.No.402, measuring 1-
00 Acre situated at Kalkere Village, K.R.
Puram Hobli, Bangalore East Taluk.
(iii). Another dry land in Sy.No.403,
measuring 0-21 Acre situated at Kalkere
Village, K.R. Puram Hobli, Bangalore East
Taluk.
(iv). One more dry land in Old
Sy.No.256, New Sy.No.256/5, measuring 1-00
Acre situated at Kalkere Village, K.R. Puram
Hobli, Bangalore East Taluk.
(v). House property bearing Kaneshwari
No.211, measuring East to West 37 feet, North
to South 32 feet.
out of the five items of the joint family properties
belonging to her and the 8th defendant jointly, in the
present suit only for the 4th item of the aforesaid
property is the subject matter of the present suit for
permanent injunction against the defendant Nos.1 to 7
Cont'd..
-9- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
and the same is morefully described in the schedule
given hereunder and hereinafter referred to as the suit
schedule property.
It is further stated that, the 8 th defendant during
the minority of the plaintiff has set up the mother of the
plaintiff Smt. Gowaramma to file a suit for partition
against himself in the name of the plaintiff,
representing her as a guardian by the mother Smt.
Gowramma and also she has claimed her share also in
the said partition suit in O.S. No.4595/2004 on the file
of this Court. During the pendency of the said suit, the
8th defendant has prevailed upon the mother of the
plaintiff to ener into a compromise for division of the
joint family properties. Her mother for herself and also
a guardian of her, she has signed the compromise
petition and which was presented before this Court in
the said suit and the same was accepted by this Court
on 22.09.2004. In the said compromise the 8th
defendant has taken lion share and only a small item
came to be allotted to her and her mother. Accordingly,
the said compromise is highly unequal and inequitable.
Cont'd..
-10- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
It is virtually an exercise of fraud by the 8 th defendant
on her. The 8th defendant in order to achieve his illegal
object he has prevailed upon her mother to furnish the
non judicial stamp paper of required denomination for
engrossing the final decree. Fortunately the same as
not registered in this regard it is stated that the said
final decree is not acted upon and no independent
possession of the allotted property was taken by her.
Even now the revenue entries in respect of the suit
schedule property. Accordingly, all the joint family
properties are in joint possession of the her and 8 th
defendant as co-parceners of such a Hindu undivided
joint family.
It is further stated that, it is undisputed fact that
the aforesaid properties are the properties of undivided
Hindu Joint Family property of her and the 8 th
defendant. It is also an undisputed fact that the said
properties have been allotted to the share of 8 th
defendant being the head of the joint family of her
under a partition deed dated 15.07.1988. The plaintiff
having come to know the fraudulent acts perpetrated by
Cont'd..
-11- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
the 8th defendant against her in connection with
effecting highly illegal and inequitable partition with the
assistance of her mother, an attaining majority she has
filed a suit in O.S. No.2831/2011 on filing of this Court
seeking the relief of partition and also a declaration
against the compromise decree passed in
O.S.No.4595/2004 dated 03.06.2005 as null and void
and for permanent injunction against the stranger to
the joint family. The said suit is still pending
consideration of this Court. It is further stated that, the
8th defendant in order to achieve his illegal objects
against the plaintiff appears to have set up the
defendants No.1 to 7 to make illegal attempts to
encroach the suit schedule property as they are
neighbors to the same. The understanding among the
defendants are not forthcoming to her. However it is
sure that the 8th defendant has got had in glove with the
defendants No.1 to 7 in attempting to encroach the suit
schedule property.
The defendants No.1 to 7 being the powerful
persons in the are having financial affluency and
Cont'd..
-12- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
political influence have attempted to encroach the suit
schedule property from the northern and southern side
by attempting to remove he barbed wire fencing on
04.04.2012. The said fact has come to the knowledge of
the plaintiff from reliable resources. Immediately the
plaintiff rushed to the spot and resisted the high
handed illegal acts of the defendants No.1 to 7. The 8 th
defendant has become passive in this regard may be
due to having hand in glove with the defendants No.1 to
7 for extraneous reasons and considerations. The
plaintiff with great difficulty with the assistance of the
passers by resisted the high handed unlawful acts of
the defendants No.1 to 7. The defendants No.1 to 7
have stored building materials near the suit schedule
property with an intention to raise the construction by
way of encroachment over the suit schedule property.
In this regard though the plaintiff has approached the
jurisdictional police, she could not avail any protection
or assistance. In this connection it is stated that the
defendants No.1 to 7 have taken a challenge to see that
the suit schedule property is encroached in a short
Cont'd..
-13- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
duration by bringing anti social elements. The
defendants No.1 to 7 are capable of achieving their
illegal objects, whereas, it is next to impossible to the
plaintiff to resist the high handed acts of the defendants
No.1 to 7 in collusion with 8th defendant. The
defendants No.1 to 7 may dispossess the plaintiff from
her joint possession at any moment in the absence of
the preventive order from this Court in aid of the final
relief.
It is further stated that, the defendant Nos.1 to 7
once again made similar attempts on 09.04.2012 and
the same was also resisted by her with great difficulty
and with the assistance of passers by as she has kept
constant vigil over the suit schedule property. The 8 th
defendant having not shown any interest to safeguard
the interest of the joint family over the suit schedule
property and the plaintiff being one of the co-parcener
of such a joint family has filed the suit to protect the
interest of the joint family and she is entitled to do so.
Moreover she has already challenged the compromise
Cont'd..
-14- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
decree and it was not acted upon and as such the joint
family continued to exist. Hence, filed this suit.
3. After service of summons, though the
defendants 1 to 4, defendant No.5, and defendants No.6
and 7 have appeared through their Counsel, they have
filed their separate written statement. The defendants
1 to 4 have filed written statement in O.S.
No.2785/2012 as under -
The suit of the plaintiff is not maintainable either
in law or on facts. The suit is false, frivolous to the
knowledge of the of plaintiff has deliberately instituted
this false suit against the defendants No.1 to 4. On this
ground, the suit filed by the plaintiff deserves to be
dismissed and be dismissed as required under Section
35A of the CPC. The allegations made in para 2 of the
plaint that defendants No.8 is the father of the plaintiff
may be true and correct. The further allegation made in
same para are not within the knowledge of them and
the plaintiff is directed to put to strict proof of the same.
The averments of Para 3 to 12 are all not true and
Cont'd..
-15- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
correct. In fact the plaintiff has no where stated in the
plaint that she is in possession of the suit schedule
property and the defendants are trying to interfere over
the suit schedule property, when such being the case
the question of granting the injunction in favour of
plaintiff does not arise. On this ground also, the suit
filed by the plaintiff is deserves to be dismissed.
4. The defendant No.5 has filed his written
statement in O.S.No.2785/2012 as under -
Regarding paragraph 1 of plaint, there is no
comment. Regarding para 3 of plaint, the plaintiff is the
only child of 8th defendant father. That, the 8 th
defendant and plaintiff constitute HUF. In the absence
of averring the flow of title, by implication, it cannot be
construed that plaintiff and 8th defendant constituted
HUF. 8Th defendant could not be construed as co-
parcenery family in view of prospective operation of the
amendment of section 6 of Hindu Succession Act. Only
method by which the plaintiff could acquire any right
under section 8 of Class I heir. Section 8 of the Hindu
Cont'd..
-16- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
Success Act does not come into operation.
Consequently, plaintiff, prima facie, has no right, tile
and interest in the suit schedule property.
Regarding averment in para nos. 5, 6 and 7, same
is denied. The decree in O.S No.4595/2004 was passed
as early on 22.09.2004, upon persual of age of plaintiff,
he is born in 1990, from which plaintiff would have
attained majority in the year 2008, but present suit is
filed in the year 2012, is clearly barred by limitation
under Article 59 and 60 of Indian Limitation Act 1964.
The averments made in Para 8,9 and 10 are denied as
false. Plaintiff is neither a co-parcencer nor a member of
HUF. The averment that, in the light of the plaintiff
having filed O.S No.2831/2011 seeking paramount
prayer of cancellation, present suit will have to be
stated until the outcome of O.S No.2831/2011.
It is further contended that, he has originally
sought to acquire a portion of the suit schedule
property from the brother of the 8 th defendant, S
Krishnappa by way of an agreement dated 28.10.2010.
Cont'd..
-17- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
A part of the sale consideration had been paid by him to
S. Krishnappa, brother of 8th defendant. However,
subsequently, the agreement has come to be rescinded
and the moneys have been returned and possession of
the property forming the subject matter of the
agreement has also been returned to the said S.
Krishnappa and one G. Sunil Kumar. The said S.
Krishnappa and one G. Sunil Kumar are not made a
parties to the present suit and in view of the fact that
they are proper and necessary parties, the present suit
may be dismissed for non-joinder of necessary parties.
It is further contended that, in view of the fact that he
has no subsisting right, title and interest in the suit
schedule property, he is neither a proper nor necessary
party to the present proceedings. He is not in
possession of any portion of the suit schedule property
and has been arraigned as a defendant by the plaintiff
only with a view to harass him. He may be deleted from
the array of parties.
In view of the facts that he has never been in
possession of any portion of the suit schedule property,
Cont'd..
-18- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
he has no control over the affairs of the suit schedule
property. Consequently, he has not altered the status
of the suit schedule property in any way. He is not
liable to be punished for violation of any of the order of
this Court. He is an honest and obedient citizen and
believes in obeying the orders passed by this Court. It
is further contended that, in view of the relinquishment
of his right in respect of the suit schedule property back
in possession of S. Krishnappa, he has not been in
control of the same. Therefore, suit of the plaintiff is
liable to be dismissed.
5. The defendants No.6 and 7 are filed their
written statement in O.S. No.2785/2012 as under -
The suit of the plaintiff is liable to be dismissed in
limine with exemplary costs as the suit is not
maintainable either in law or on facts and
circumstances of this case. The suit is false and
frivolous suit by making misrepresentations or by
suppressing the material facts. The suit is thus far
fetched and is devoid of bonafides, and is intended to
coerce the defendant to come to terms with plaintiff by
Cont'd..
-19- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
causing him embarrassment, vilification and vexation
for wrongful gain, hence the suit is liable to be
dismissed.
With regard to averment that, plaintiff and 8 th
defendant together constitute HUF are hereby denied as
false and incorrect and plaintiff is put up proof of same.
The allegation that defendants are parties and they are
not aware are false and denied. 8 Th defendant has filed
OS No.26221/2011 and obtained ex-parte interim
order, there after these defendant appeared in the said
suit and after hearing the parties interim order came to
be vacated and there by Hon'ble Court observation the
copy of said order is before this Hon'ble Court. With
regard to averment that defendants are parties and they
are not aware and hence the plaintiff is put to strict
proof of the same. The averment that 8 th defendant and
plaintiff in collusion with each other instituting those
proceedings with an intention to harass these
defendants as well others. These defendants learn that
plaintiff and 8th defendant are in the habit of filing false
suits to harass the neighbors for illegal gains.
Cont'd..
-20- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
The allegation that, the suit and IA No.1 are read
the collusion of plaintiff and 8 th defendant is clear in
nature. Plaintiff has created this fabricated story to file
the suit. Survey authorities have conducted the survey
of these defendants lands and they have fixed the
boundary. Plaintiff along with 8th defendant have
demolished a portion of compound wall and threatened
these defendants and tried to encroach theland
belonging to these defendants and hence these
defendants have lodged police complaint in
jurisdictional station. The plaintiff and her father who
is 8th defendant are court birds and they are well known
for illegal act and they are powerful and trouble
makers to the people. Hence the suit is liable to be
dismissed. The documents and photographs are
produced along with documents. Hence defendant No.
6 and 7 prayed to dismiss the suit.
6. Suit in O.S. No.26221/2011 is filed by the
plaintiff who is defendant No.8 in O.S. No.2785/2012
for Permanent injunction restraining the defendants,
Cont'd..
-21- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
their agents, servants, assignees or anybody claiming
through or under them from interfering with the
peaceful possessed and enjoyment of the plaintiff's suit
schedule property by way of putting up any
construction and to grant such other reliefs.
7. The brief facts of the plaintiff's case in O.S.
No.26221/2011 are as under -
The plaintiff is the absolute owner and in
possession of the suit schedule property. He has
acquired the suit schedule property under family
partition deed dated 15.07.1988. Since the date of
partition, he is in actual possession and enjoyment of
the same in respect of the suit schedule property.
Subsequent to the partition, the revenue records
mutated in his name as per M.R. No.22/1988-89. It is
further stated that, till today he is in actual possession
and enjoyment of the suit schedule property and the
revenue documents continued in his name. It is further
stated that, the defendants have no manner of right,
title or interest over the suit schedule property except
Cont'd..
-22- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
him, such being the state of affairs, on 25.06.2011 the
defendants No.5, 6 and 7 colluding with the defendant
No.1 to 4 along with the rowdy elements made an
attempt to remove the barbed wire fencing around the
suit schedule property and tried to encroach his suit
schedule property on the southern and northern side.
However, the plaintiff has resisted the illegal acts of the
defendants with the help of elders of the villagers. It is
further stated that, he and his family members were out
of station from 07.07.2011 to 14.07.2011, by taking
advantage of his absence in the station the defendants
No.5, 6 and 7 once again entered in to the suit schedule
property and removed the barbed wire fencing on the
southern and northern side fencing and now the
defendant No.5 by colluding with the other defendants
has dumped construction materials near the suit
schedule property and is making attempt to put up
construction on southern side of the suit schedule
property with an intention to encroach his schedule
property.
Cont'd..
-23- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
It is further stated that, in this connection, he had
orally lodged a complaint before the concerned Police
Station as against the defendants. The defendants are
the powerful persons in the locality and they have men
and material with them and at any moment the
defendants may interfere and encroach upon his
property with an intention to put up construction, in
such an event, he will be put to irreparable loss and
injury and he is not in a position to resist such illegal
acts and high-handedness of the defendants. He is a
poor person, taking undue advantage of his poorness
the defendants are making illegal attempts to knock off
his property and also making attempts to interfere and
encroach upon his property. Hence, filed this suit.
8. After service of summons, though the
defendants 1 to 4, defendant No.5, 6 and have appeared
through their Counsel, they have filed their separate
written statement. The defendants 1 to 4 have filed
written statement in O.S. No.26221/2011 as under -
Cont'd..
-24- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
The suit of the plaintiff is not maintainable either
in law or on facts. The suit is false, frivolous to the
knowledge of the plaintiff. The plaintiff deliberately filed
a false suit against them. The allegation that, plaintiff is
in peaceful possession and enjoyment of land bearing
No.256 and New No.256/5 measuring 1 acre out of total
measurement of 6 acres 23 guntas which includes 12
guntas of karab is not substantially correct, suit
schedule property is not alone belongs to plaintiff.
Allegation that suit schedule property under family
partnership may be true and correct. Further since the
date of partition plaintiff is in actual possession and
enjoyment of same . The allegation that plaintiff is in
actual possession and enjoyment of suit schedule
property and revenue documents continued in his name
is not true.
The allegation that, defendants have no manner of
right, title and interest over the suit schedule property
except plaintiff, such being the state of affairs
defendant No.5,6 and 7 colluding with defendant 1 to 4
along with rowdy elements made and attempt to remove
Cont'd..
-25- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
the barbed wire fencing around the suit schedule and
tried to encroach the plaintiffs suit schedule property
on southern and northern side is not true and correct.
In fact defendant No.1 to 4 are not the adjacent owner
of the suit schedule property. After survey the land
owned by the plaintiff has renumbered Sy. no.256/5
and property owned by defendant No.1 to 3 are allotted
as Sy. No.256/1 and 2. and there exists other two Sy.
no.i..e, No.256/3 and 4.
The allegation that, when the plaintiff and his
family members were out of station, by taking
advantage of plaintiffs absence defendant 5,6 and 7
once again entered into suit schedule property and now
defendant No.5 by colluding with other defendant has
dumped the construction material near the suit
schedule property is not true and correct. When an
intention to encroach the plaintiffs suit schedule
property is not true and correct, infact defendant No.1
to 4 are not the adjacent owner of suit schedule
property , when such being the case encroaching the
suit schedule property and putting up construction
Cont'd..
-26- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
does not arise. The allegation that in connection the
plaintiff had orally lodged complaint before the
concerned Police station against defendant is denied as
false.The allegation that, defendants are powerful
person in the locality ad they have men and material
with them and at any moment the defendants may
interfere and encroach upon the plaintiffs property with
an intention to put up construction, in the event the
plaintiff will be put to irreparable loss and injury and he
is not in position to resist such illegal act and high
handedness of the defendant is false and same is
hereby denied as false. The allegation that, plaintiff is a
poor person, taking undue advantage of his poorness
defendants are making illegal attempts to knock off the
plaintiffs property and also making attempts to interfere
and encroach upon plaintiffs property is hereby denied
as false.
The allegation that cause of action arose on
25.06.2011 when defendant No., 5,6 and 7 colluding
with other defendants made an attmept to interefere
with suit schedule property by removing barbed wire
Cont'd..
-27- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
fencing with an intention to put up construction when
plaintiffs and his family were not in station is false and
same has been invented for the purpose of filing the
suit. On these grounds he prayed to dismiss the suit.
9. The defendants 6 and 7 have filed written
statement in O.S. No.26221/2011 as under -
The suit of the plaintiff is liable to be dismissed in
limine with exemplary costs as the suit is not
maintainable either in law or on facts. The suit as
brought about is false and frivolous suit by making
misrepresentations or by suppressing material facts.
And is intended to coerce the defendant to come to
terms with plaintiff by causing him embarrassment,
vilification and vexation for wrongful gain. Hence the
suit is liable to be dismissed.
The averment that plaintiff is the absolute owner
and in possession in respect of the land bearing old
No.256/5 new No.265/5 measuring 1 acre, out of total
measuring 6 acres 23 gunta includes 12 guntas
karabh land of K.R. Puram Hobli, Bangalore East. Is
Cont'd..
-28- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
hereby denied as false and incorrect. Averment made
plaintiff had acquired the suit schedule property under
family partition. Since the date of partition the plaintiff,
the revenue records mutated in the name of plaintiff as
per M.R. No.22/1988-89 are hereby denied the same
are created document. The allegation the plaint, that
till today the plaintiff is in actual possession and
enjoyment of suit schedule property and revenue
documents continued in his name are hereby denied as
false. In fact the plaintiff and his brothers have divided
the Sy. No.256 under oral partition in which plaintiff
and his brothers have got only 25 guntas of land.
Allegations made at para 5 plaint, the defendants
have no manner of right, title or interest over suit
schedule property, such being the state Enquiry Officer
affairs, defendants No.5, 6, and 7 colluding with
defendant No.1 to 4 along with rowdy element made an
attempt to remove the barbed wire fencing around the
suit schedule property. Further submitted that the
brother of plaintiff one has sold his share of land
measuring 25 guntas in Sy. No.256 to one patalappa
Cont'd..
-29- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
and Madappa under registered sale deed. The plaintiff
has suppressed all these fact and transactions and filed
this false suit to encroach the land of these defendants.
The plaintiff so far has not conducted any survey of
land which is described in this suit and he is illegally
tried to encroach the land of these defendants by
demolishing the compound wall of these defendants,
such act and to protect his illegal act he has filed this
false suit by suppressing the material fact sand hence
the suit is liable to be dismissed.
The allegation that defendants are powerful
persons in the locality and they have men and material
with them and at any moment the defendants may
interfere and encroach upon the plaintiff's property
with an intention to put up construction in such an
event the plaintiff will be put to irreparable loss and
injury and he is not in position to resist such illegal act
and high handedness, of defendants are all hereby
denied. There is no right for the plaintiff to file this suit,
much less there is no cause of action for filing the suit.
Therefore, suit of the plaintiff is liable to be dismissed.
Cont'd..
-30- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
10. On the basis of the above facts, the following
Issues are framed -
ISSUES IN O.S. No.2785/2012
1. Whether the plaintiff proves
plaintiff is in lawful possession
of suit property?
2. Whether plaintiff proves that
the defendants unlawfully
interfered with the possession
of suit property by the
plaintiff?
3. Whether the plaintiff is entitled
for the relief of perpetual
injunction?
4. What decree or order?
ISSUES IN O.S. No.26211/2011
1. Whether the plaintiff proves
that he was in lawful
possession of the suit schedule
property on the date of the
suit?
2. Whether plaintiff proves the
alleged interference?
3. What decree or order?
11. In support of the case of the plaintiff, plaintiff
in O.S. No.2785/2012 examined herself as P.W.1 and
got marked the documents as per Exs.P.1 to P.21 on
behalf of the plaintiff. The plaintiff in O.S.
Cont'd..
-31- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
No.26221/2011 examined himself as P.W.1 and not
marked any documents.
12. On the other hand, the defendant No.2 himself
examined as D.W.1 and also examined one witness as
D.W.2/defendant No.8 (Plaintiff in O.S.
No.26221/2011) and got marked documents as per
Exs.D.1 to D.17 on behalf of the defendants.
13. Heard arguments.
14. My findings on the above Issues are as under -
O.S. No.2785/2012
ISSUE No.1 - In the affirmative;
ISSUE No.2 - In the affirmative;
ISSUE No.3 - In the affirmative;
ISSUE No.4 - As per final order,
for the following -
O.S. No.26221/2011
ISSUE No.1 - In the negative;
ISSUE No.2 - In the negative;
ISSUE No.3 - As per final order,
for the following -
Cont'd..
-32- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
REASONS
15. ISSUE NOs.1 TO 3 IN O.S. No.2785/2011 and
ISSUE Nos.1 AND 2 IN O.S. No.26221/2011 : Since all
these Issues are inter-related with each other, they are
being taken up together for discussion to avoid
repetition of facts.
16. Both the suits are clubbed together as per
ordered in O.S. No.26221/2011 the case in O.S.
No.2785/2012 is clubbed and common evidence is
recorded. The plaintiff Kumari Divya has brought this
suit for bare injunction simplicitor against the
defendants No.1 to 8. The 1st defendant
Chikkananjundappa dead and his LR's defendants
No.1(a) to 1(d). The 8th defendant is father of the
present plaintiff. The plaintiff has brought this action
against the defendants for the relief of permanent
injunction. Similarly, the 8th defendant in this suit has
filed a suit in O.S. No.26221/2011 against the
defendants excluding his daughter Kumari Divya in a
suit for injunction. The plaintiff has to prove her
lawful possession over the suit schedule property as on
Cont'd..
-33- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
the date of suit and the alleged obstructions by the
defendants to seek the relief of permanent injunction
against the defendants. The plaintiff to prove her case,
she has stepped into the witness box got examined
herself as P.W.1 and her affidavit evidence is placed on
record and she has got marked the documentary
evidence at Exs.P.1 to P.21 in support of her case. The
evidence of P.W.1 and documents at Exs.P.1 to P.21.
17. As again the evidence of the plaintiff, the 2 nd
defendant got examined himself as D.W.1 and got
marked the documents as Exs.D.1 to D.17. In addition
to the oral evidence of defendants. The D.W.2 is the
father of the plaintiff and plaintiff in O.S.
No.26221/2011.
18. In the course of arguments, the learned
Counsel for the plaintiff appearing and submitted that
the defendants No.1 to 7 are neighboring land owners to
extent of the said property was measuring 6 acres, 23
guntas out of which 1 acres is a subject matter of the
suit. The plaintiff is the owner in possession of the suit
Cont'd..
-34- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
schedule property. The 8th defendant is father of the
plaintiff has not dispute the plaintiff possession over the
suit property in the course of cross-examination. There
is an admission from the defendants as regard to the
possession of the plaintiff. The plaintiff contents that
the defendants are interfering with the peaceful
possession of the plaintiff over the suit schedule
property. The defendant No.8 father of the plaintiff and
who is the plaintiff another suit in O.S. No.26221/2011
has no objection to decree the suit of the plaintiff. The
adjacent owners, the defendants have no right manner
over the property, he prays to decree the suit.
19. The learned Counsel for the defendants
submitted the compromise entered earlier is not acted
upon the present suit is not maintainable, the plaintiff
ought to have filed a comprehensive suit. The survey
proceedings are within the knowledge of the plaintiff.
The defendant No.1 is uncle of plaintiff and the
defendants No.2 and 3 are relative. The present suit is
set-up as there is no ad-interim injunction order
obtained in the earlier suit by her father. The suit
Cont'd..
-35- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
property is covered with residential layout. The conduct
of the plaintiff is not fair and there is no cause of action
to the plaintiff to filed the suit. The documents are
created in the purpose of the suit, the plaintiff is not
entitled for any of the relief sought for. Therefore, he
requested to dismiss the suit.
20. Having heard the learned Counsel for both
sides. I have perused the entire records, both suits are
clubbed together the earlier suit in O.S. No.26221/2011
and the latter suit is in O.S. No.2785/2012. The present
plaintiff claims to be lawful possession over the suit
schedule property. The plaintiff has produced the RTC
extract pertaining to the suit property in the year 2013-
14 and 2014-15 at Exs.P.1 and P.2, mutation registered
extract at Ex.P.3, certified copy of the order sheet in
O.S. No.4595/2004, certified copy of memorandum of
plaint in O.S. No.4595/2004 at Exs.P.4 and P.5,
certified copy of the application under Order 23 Rule 3
in the said suit and certified copy of plaint, order sheet
in O.S. No.2831/2011 at Exs.P.7 and P.8, certified copy
of the orders in the said suit. On perusal of the RTC
Cont'd..
-36- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
extract pertaining to the property at Sy.No.256 situated
at Kalkere Village, K.R. Puram Hobli, discloses the
names of K.S. Srikantappa S/o. Siddappa extent 1 acre.
The plaintiff described the suit schedule property as
land bearing Sy.No.256, New No.256/5 total extent 6
acres, 23 guntas, 1 acre is the subject matter of the suit
fully described in the plaint. Ex.P.2 is the RTC extract
standing in the name of Sri Srikantappa extent of 1
acre, mutation entries is effected as per Ex.P.3. O.S.
No.4595/2004 is a partition suit filed by Gowramma
and others against the Srikantappa. The compromise
recorded in the said suit vide order dated 22.09.2004,
the suit is decreed in terms of the compromise. The
memorandum of plaint in O.S. No.4595/2004 wherein
the present plaintiff Kumari Divya D/o Srikantappa is a
minor shown as plaintiff No.2 in the said suit. The
compromise petition at Ex.P.6 which is accepted by the
Court. Wherein, 'B' schedule property is allotted to the
share of plaintiff No.1 and 'C' schedule property allotted
to the share of defendant, 'A' schedule property is
Sy.No.256 measuring 1 acre which is corresponds to the
Cont'd..
-37- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
suit schedule property with 'B' schedule property in the
compromise petition corresponds to the suit schedule
property. The present plaintiff in the year 2011 filed a
suit against her father Srikantappa and others and the
said suit came to be withdrawn. The Ex.P.9 is the
certified copy of the order passed to withdrawn the suit.
21. The present plaintiff Kumari Divya has
instituted the suit for permanent injunction claiming in
lawful possession over the suit schedule property on the
basis of decree in O.S. No.4595/2004 passed in the year
2004 and she was a minor and she after attaining
majority she has filed a suit in O.S. No.2385/2011.
The plaintiff has filed the suit on the basis of partition
in O.S.No.4595/2004 that the suit ended in a
compromise. The 8th defendant has got had in glove
with the defendants No.1 to 7 and attempting to
encroach the suit schedule property. She has
challenged the compromise decree and that compromise
acted upon. P.W.1 in the course of cross-examination
stated by the defendants No.1 to 7 by removing cause
obstructing and defendants No.1 to 4 are supported the
Cont'd..
-38- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
defendants No.5 to 7 against the plaintiff. The
defendants No.5 to 7 are the neighboring land owners.
22. The plaintiff got examined herself as P.W.1 and
stated that the she is in possession of the suit schedule
property. There is nothing culled out in the course of
cross-examination to disbelieve the case of the plaintiff.
The 2nd defendant examined as D.W.1 in the course of
cross-examination, he clearly admits that on
04.08.2009 an application was filed himself and
Basavaraj before the Tahasildar for Sub-Division.
Moreover, it clearly admits that the notice was not
served to the plaintiff, but notice was served to 8 th
defendant. In page 7 of cross-examination, she stated
that Srikantappa is having extent of 1 acre land and he
has no right over the said property. The Srikantappa is
the father of the present plaint. D.W.2 is Srikantappa
father of the plaintiff in the course of cross-examination
the RTC extract pertaining to the suit schedule property
are standing in the name of Sri Srikantappa the 8 th
defendant in the matter the 8th defendant is none other
than the father of the plaintiff. The 8 th defendant is
Cont'd..
-39- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
divested from the property in favour of his wife and
child the present plaintiff who has minor at the time of
filing of the said suit.
23. The plaintiff to prove her possession over the
suit schedule property has placed on record her oral
evidence clubbed with the documentary evidence. The
RTC of the property through out standing in the name
of 8th defendant, it was fallen to the share in the
partition. Further, in O.S. No.4595/2004 the
compromise petition is recorded and 'B' schedule
property is the suit schedule property. The compromise
petition is binding on plaintiff and the 8 th defendant till
the same is set aside. The plaintiff had filed a suit
against her parents and one Krishnappa and that suit
came to be withdrawn. D.W.1 who is defendant No.2
has clearly admitted that, he has no right over the
extent of 1 acre fallen to the share of Srikantappa. He
admits that the possession of Srikantappa the 8 th
defendant. Further, admits that the plaintiff is only
daughter of Srikantappa. It is pertinent to note that the
Srikantappa who has filed affidavit evidence in para
Cont'd..
-40- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
No.4 stated that as per the compromise petition,
schedule property allotted to the plaintiff herein. The
admission in the affidavit evidence binds on the 8 th
defendant. The revenue record continued standing in
his name. The defendants have removed the fence
surrounding the suit property. The para 8 of the
affidavit, he say that injunction has to be granted
against the defendants No.1 to 7. He has produced the
documents at Ex.D.1 receipt and encumbrance
certificates at Exs.D.2 and D.3. The admission made by
the defendant No.8(D.W.2) that the plaintiff is in
possession over the suit schedule property. Therefore, I
conclude that the plaintiff is in lawful possession over
the suit property as on the date of suit. The defendants
No.1 to 8 are not in possession of the suit schedule
property.
24. As far as, act of interference of the plaintiff
contends that the defendant No.2 to admit to removed
fence and try to interfere with the peaceful possession
and enjoyment of the plaintiff over the suit schedule
property. The dispute relating to the Sub-Division,
Cont'd..
-41- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
revenue lands is pending consider before the Revenue
Authority. The appeal No.499/2015 filed by the present
plaintiff wherein in the matter remained that direction
re-consider the application a fresh. The evidence placed
on record clearly establishes that the plaintiff is in
possession over the suit property. There is obstruction
from the side of the defendants.
25. It is pertinent to note that in page 7 cross-
examination of P.W.1 which is clear that the D.W.1
father of the plaintiff who is the defendant No.8 admits
that 1 acre of land is allotted to the share of his
daughter suit property and he has no objection to
decree the suit. The admission of the defendant made
the plaintiff is in lawful possession over the suit
schedule property as on the date of the suit and she is
entitled for the relief of permanent injunction. The
plaintiff proved by evidence the alleged act of
interference by defendants No.1 to 7. The possession of
the plaintiff is to be protected by granting permanent
injunction. I answer issue Nos.1 to 3 in O.S.
No.2785/2012 are in the affirmative and Issue Nos.1
Cont'd..
-42- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
and 2 in O.S. No.26211/2011 in the negative. The suit
of the plaintiff is succeeded in O.S. No.2875/2012. In
view of the admission of D.W.2 who is defendant No.8
the suit in O.S.No.26221/2011 has to be dismissed.
26. ISSUE No.4 in O.S. NO.2875/2012 an Issue
NO.3 in O.S. No.26221/2011 : For my reasons and
discussion on the above Issues, I proceed to pass the
following -
ORDER
Suit of the plaintiff in O.S. No.2785/2012 is hereby decreed with cost.
The defendants No.1 to 7 are hereby restrained by way of permanent injunction from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property.
Suit of the plaintiff in O.S. No.26221/2011 is hereby dismissed.
Draw decree accordingly.
Cont'd..
-43- O.S. No.2785/2012 C/w.
O.S.No.26211/2011 Copy of the common judgment to be kept in the file of O.S. No.26221/2011.
(Dictated to Stenographer, transcribed by her, revised by me and after corrections, pronounced in open Court on this the 15th day of March, 2023.) (MOHAMMED KHAN M. PATHAN) XXXI Additional City Civil and Sessions Judge, Bengaluru.
ANNEXURE
1. WITNESSES EXAMINED FOR THE PLAINTIFF:
Examined on:
P.W.1 : Kumari Divya 27.07.2015
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 : RTC of 2013-14. Ex.P.2 : RTC of 2014-15. Ex.P.3 : Mutation register of 2009-10. Ex.P.4 : Certified copy of order sheet in O.S. No.4595/2004.
Ex.P.5 : Certified copy of memorandum of plaint in O.S. No.4595/2004.
Ex.P.6 : Certified copy of application U/o 23 Rule 3 in O.S. No.4595/2004. Ex.P.7 : Certified copy of order sheet in O.S. No.2831/2011.
Ex.P.8 : Certified copy of plaint in O.S. No.2831/2011.
Ex.P.9 : Certified copy of orders on I.A. No.8 in O.S. No.2831/2011.
Cont'd..
-44- O.S. No.2785/2012 C/w.
O.S.No.26211/2011 Ex.P.10 : Form No.5 survey record. Ex.P.11 : Certified copy of Appeal No.499/2015 (RV) of Karnataka Appellate Tribunal. Ex.P.12 to : Photograph. P.14 Ex.P.12(a) : Negative of Ex.P.12 to P.14. to P.14(a) Exs.P.15 : RTC of 2011-12. to P.17 and P.19.
Ex.P.18 : RTC of 2009-10. Ex.P.20 : Demand Register extract. Ex.P.21 : Certified copy of Judgment in Appeal No.499/2015 of Karnataka Appellate Tribunal.
3. WITNESSES EXAMINED FOR THE DEFENDANTS:
Examined on:
D.W.1 : Sri. Puttappa 20.07.2017 D.W.2 : Sri. Srikantappa 28.11.2018
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 : Tax receipt.
Ex.D.2 : Encumbrance certificate dated 22.07.2011.
Ex.D.3 : Encumbrance certificate dated 19.07.2011.
Ex.D.4 : RTC of the year 1988-89 to1993-94.
Ex.D.5 : RTC of the year 1994-95.
Ex.D.6 : RTC of the year 2009-10.
Exs.D.7 : RTC of the year 2010-11.
D.8 & D.10
Ex.D.9 : RTC of year 2011-12.
and D.11
Cont'd..
-45- O.S. No.2785/2012
C/w.
O.S.No.26211/2011
Exs.D.12 : Photographs.
to D.15 Ex.D.16 : Negatives of the photographs. Ex.D.17 : 'D' schedule of partition.
(MOHAMMED KHAN M. PATHAN) XXXI Additional City Civil and Sessions Judge, Bengaluru.
Cont'd..