Bangalore District Court
Sri.M.Jayaraman vs Sri.Tony Vincent on 8 October, 2021
IN THE COURT OF THE IV ADDL. CITY CIVIL &
SESSIONS JUDGE, AT MAYO HALL BENGALURU
(CCH-21)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge & C/c IV ACC & SJ.,
Bengaluru
Dated this the 8th day of October, 2021
O.S.No.25809/2009
Plaintiff:- Sri.M.Jayaraman,
S/o S.Marga Sahayam,
Aged about 57 years,
R/a. B-2/103, Paradise Apartment,
40, Indraprastha Extension, Path
Parganj Society, New Delhi-110 092.
[By Sri.M.S.B.-Advocate]
Vs.
Defendants: 1. Sri.Tony Vincent, Major,
2. Smt.Savitha Tony,
W/o Tony Vincent,
Aged about 40 years
3. Sri.K.O.Jossi,
S/o Late K.Anthony,
Aged about 78 years,All are
R/a No.2/7, 'Friends Colony',
Vivekananda Nagar Post,
Koramangala, Bengaluru.
[D 1 and 2: By Sri. PS-Adv; D.3:
Dismissed]
2
OS No.25809/2009
Date of Institution of suit: 16.04.2009
Nature of the Suit (Suit for
Pronote, Suit for Declaration and Declaration and
Possession, Suit for Injunction, Permanent
etc.): injunction
Date of Commencement of 11.02.2013
recording of evidence:
Date on which the Judgment was 08.10.2021
pronounced:
Total Duration:
Years Months Days
12 05 22
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge, & C/c IV ACC &
SJ., Mayo Hall, BENGALURU.
3
OS No.25809/2009
JUDGMENT
The Plaintiff has instituted this suit against the defendants 1 to 3 for the relief of declaration that he is the absolute owner of the suit schedule property and for perpetual injunction restraining the defendants from interfering with his possession and enjoyment of the suit schedule property and for mandatory injunction directing the defendants to demolish the existing structures constructed over the suit schedule property and for delivery of the vacant possession to the plaintiff.
2. Brief facts of the case of the Plaintiff are as under:-
The plaintiff has purchased the property bearing Katha No.340/A, in House List No.52, situated at Begur Village and Hobli, Bengaluru South Taluk, which is 4 OS No.25809/2009 described in the schedule and referred to as suit schedule property, under a Regd. Sale Deed dated 16.12.1993 from its previous owner Sri.Kaverappa. The suit schedule property carved out of land comprised in Survey Number-161 and 162 of Begur village. The Chairman of the Panchayath had approved the Layout Plan consisting of various sites on 13.09.1979 for formation of Layout in the land bearing Survey Numbers-161 and 162 of Begur village. The suit schedule property was the ancestral property of the vendor of the Plaintiff namely Kaverappa and as Kartha of the family he has sold the suit schedule property in favour of the plaintiff for his legal necessity. The katha was effected in the name of the plaintiff. Plaintiff is paying the tax to the said Panchayath. Subsequently, the suit schedule property came to be included omes within the jurisdiction of 5 OS No.25809/2009 the B.B.M.P., Bommanahalli Sub-Division. The plaintiff has paid tax to the BBMP. All the documents show that the plaintiff is in actual physical possession and enjoyment of the suit schedule property as an absolute owner of the same. The defendants herein having no right, title and interest in the suit schedule property on 22.03.2009 came near the suit schedule property with an intention to demolish the compound wall constructed by the plaintiff around the suit schedule property. The said attempt of the defendants was resisted by the plaintiff. But, again on 30.03.2009 and on 02.04.2009 the defendants made illegal attempt to interfere with the plaintiff's possession and enjoyment of the suit schedule property. Hence, the plaintiff filed this suit for permanent injunction.
But, despite the fact that this court granted an Ex- parte order of temporary injunction against the 6 OS No.25809/2009 defendants, the defendants trespassed into the suit schedule property during the 3rd week of January 2010 and forcibly dispossessed the plaintiff from the suit schedule property, by demolishing the compound wall put up thereon and started to put up construction. The alleged acquisition of land in Survey Number- 161 of Begur village by the 3rd defendant and the alleged conversion of the said land for non agricultural purpose on 25.05.2009 are all void, illegal and not binding on the plaintiff. Hence, the plaintiff has amended the suit seeking the above reliefs.
3. Defendant Nos.1 and 2 have contested the suit by filing common written-statement and also Addl. Written statement, contending as under :-
Suit is not maintainable either in law or on facts of the case. The suit property is not carved out of 7 OS No.25809/2009 Survey Number- 161 and 162 and no lay out plan is approved by the Chairman of Panchayath. The plaintiff has absolutely no manner of right, title or interest over the suit schedule property. It is further stated by the defendants that 3rd defendant has purchased the lands in Survey Number- 161 of Begur village, Begulr Hobli, Bengaluru South Taluk, measuring 1 Acre under a Regd. Sale Deed dated 12.10.2006 executed by one N.Ananda and others. Thereafter, the said property has been converted from Agricultural to non agricultural residential purpose as per the Order of the Deputy Commissioner, Bengaluru dtd. 25.05.2009. The katha has been transferred in his name and later katha has been changed in the name of the defendant No.2- who is the daughter of defendant No.3 and she is paying the tax to the BBMP and she is in lawful possession and enjoyment of the same and has been 8 OS No.25809/2009 assigned BBMP Katha No.161/16. Similarly another extent of 30 guntas in Survey Number- 161 of Begur village was purchased by the 3rd defendant under a Regd. Sale Deed executed by one Smt.Renukamma, which was converted under a Conversion order dtd. 25.09.2008. After conversion of the said properties, they have been gifted in favour of the 2 nd defendant under a Regd. Gift Deed dated 06.04.2009 and 2nd defendant is in possession and enjoyment of the said properties as absolute owner by paying tax to the BBMP and has been assigned the BBMP katha No.161/15. The lands in Survey Number- 161 has been phoded long back and in terms of the approved building plan sanctioned by the B.D.A., 1st and 2nd defendants who are husband and wife and Partners of their development firm namely 'Arattukulam developers' are accordingly putting up constructions 9 OS No.25809/2009 on the said lands in Survey Number- 161 belonging to 2nd defendant along with other lands in Survey Number- 161 belonging to the 1 st defendant who has purchased the remaining extent of land in Survey Number-161 of Begur village. Under the circumstances, it is evident that the plaintiff has filed a false, frivolous and vexatious suit only to harass the vex these defendants and some how trouble them in their development activities. There is no cause of action for the suit. On these grounds, the defendants have sought for dismissal of the suit.
4. In support of the plaintiff's case, plaintiff got examined as P.W.1 and got marked 8 documents as Ex.P.1 to P.8. On behalf of Defendants, defendant No.1 got examined and got marked 49 documents as Ex.D 1 to D.49.
10
OS No.25809/2009
5. Heard arguments.
6. The following Issues and Addl. issues have been framed for determination:-
Issues
1) Whether the plaintiff was in lawful possession of the suit schedule property as on the date of the suit?
2) Whether the plaintiff proves alleged interference?
3) What decree or order?
Addl. Issue dtd. 10.06.2011
1) Whether the plaintiff proves his title over the suit schedule property?
Addl. Issue dtd. 13.02.2013
2. Whether the plaintiff is entitled for possession of the suit schedule property? 11
OS No.25809/2009 Addl. Issue dtd. 30.10.2015
3. Whether suit of the plaintiff suffers for want of deficit court fee paid?
9. For the reasons stated in the subsequent paragraphs, I answer above Issues and Addl. Issues as follows:-
Issue No.1 :- In the negative
Issue No.2 :- In the negative
Addl. Issue No.1 In the negative
Dt.10.06.2011 :-
Addl. Issue No.2 In the negative
Dt.13.02.2013 :-
Addl. Issue No.3 In the affirmative
Dt.30.10.2015 :-
Issue No.3 :- As per final order
for the following
REASONS
8. Issue No.1 and Addl. Issue No.1:-The plaintiff has described the suit schedule property as below:- 12
OS No.25809/2009 "Schedule Property All that piece and parcel of the property bearing Katha No.340/A, in House List No.52, situated at Begur village, Begur Hobli, Bengaluru South Taluk, Bengaluru,now coming under Chikka Begur (Begur Village), BBMP Bommanahalli Sub-Division, measuring East-West: 60 feet and North-South: 40 feet, totally measuring 2,400 sft. And bounded on the :
East by : Private property West by: Road North by: Property No.51 South by: Property No.53"
9. The plaintiff claims he has purchased the suit schedule property under a Regd. Sale Deed dtd. 16.12.1993 from one Kaverappa. The Plaintiff has produced the original Sale Deed as per Ex.P.1. Plaintiff has deposed evidence as PW.1. He has also deposed that the suit schedule property was purchased by him 13 OS No.25809/2009 under Ex.P.1 Sale deed. The schedule of the property purchased under Ex.P.1 Sale deed reads as below:-
"Schedule All that piece and parcel of the property bearing Katha No.340/A, in House List No.52, situated at Begur village, Bengaluru South Taluk, Bengaluru, and measuring East-West: 60 feet and North-South:
40 feet and bounded on the :
East by : Private Property West by: Road North by: Property No.51 South by: Property No.53"
Including one square A.C sheet, roofed building No water, No Electricity, No Sanitary connection, the doors and windows are made in jungle wood and there is no luxury fittings and it is far away from bus-stop. The building was constructed 25 years back. The present market value of the property is Rs.82,000/- only".
10. The schedule mentioned in Ex.P.1 is same as the schedule mentioned in the plaint except for the 14 OS No.25809/2009 existence of building mentioned in the schedule of the Sale Deed. However, Paras 4 and 5 of the plaint are relevant to be noted for the purpose of ascertaining the actual dispute in the case. Paras-4 and 5 of the plaint read as below:-
"Para.4 : The plaintiff submit that the plaint schedule property is carved out of land comprised in Survey numbers 161 and 162 of Begur village, Begur Hobli, Bengaluru South Taluk. The Chairman of the said Panchayath had approved the layout plan consisting of various sites on 13.09.1979 for formation of a layout in the lands comprised in Survey numbers 161 and 162 of Begur village and Hobli, Bangalore South Taluk. The copy of the approved layout plan issued by the Begur Panchayat on 13/9/1979 is fled herewith and marked as Document No.II.
Para-5 : The plaintiff submits that Sri.Kaverappa, the vendor of the plaintiff had sold the plaint schedule property in favour of the plaintiff for a valuable sale consideration of Rs.82,000/- (Rupees Eighty two Thousand only). It is also clear from the recitals of the sale deed that the said Kaverappa 15 OS No.25809/2009 was the absolute owner, being in peaceful possession and enjoyment of the plaint schedule property. The said property was the ancestral property of the said Sri.Kaverappa and said Kaverappa as the kartha of the family has sold the plaint schedule property in favour of the plaintiff, since he was in need of funds for the maintenance of the family and for other legal necessities and legal obligations".
11. So, it is the plaintiff case that the suit schedule site has been formed in Survey Number- 161 and 162 of Begur village. Thus, plaintiff is locating the suit schedule residential site in Survey Number-161 and 162 of Begur Village, Bengaluru South Taluk. As per the averments at para-4 of the plaint, a layout has been formed in the said land and the Chairman of the then Begur Hobli Group Panchayath has approved the layout plan on 13.09.1979. It is claimed that a copy of 16 OS No.25809/2009 the said approved layout plan has been annexed to the plaint.
12. Whereas, it is the case of the defendants that the suit schedule site claimed by the plaintiff is a non- existent property and it is not in Survey Number- 161 and 162 and plaintiff has not produced any material to show that the suit schedule site is situated in Survey Number- 161 and 162 of Begur village. Defendants claim that the defendant No.3 purchased the lands in Survey Number- 161 of Begur village measuring 1 Acre under a Regd. Sale Deed dated. 12.10.2006 from one N.Ananda and others and then he has got converted the said lands for non agricultural purpose under the Order of the Deputy Commissioner bearing No.ALN/SR(DB)/2/2009-10 dtd. 25.05.2009. The defendants claim that Defendant No.3 further 17 OS No.25809/2009 purchased 30 guntas in Survey Number- 161 of Begur village from one Renukamma under a Regd. Sale Deed and got the same also converted for non agricultural purpose as per order of the Deputy Commissioner, Bengaluru bearing No.ALN/SR(S)/277/2007-08 dtd. 25.09.2008. Thus, in respect of both the said items measuring 1 Acre 30 gunta, the katha was made out in his name and he was paying tax and then he executed the Regd. Gift Deed in favour of his daughter- defendant No.2 in respect of both the items and ever since defendant No.2 has become absolute owner in possession of 1 Acre 30 guntas in Survey Number- 161 of Begur village. Defendant No.1 is the husband of the defendant No.2 and Partner of a Construciton Company. The defendants have produced certified copy of the Sale Deed dtd.12.10.2006 executed by one N.Ananda and others in favour of defendant No.3 as 18 OS No.25809/2009 per Ex.D.1 which is in respect of 1 Acre in Survey Number-161. Ex.D.6 is the Release Deed executed by defendant No.3's wife and son in favour of defendant Nos.1 and 2 in respect of 1 Acre in Survey Number-
161. In the Release deed they claim that the said property had been purchased by defendant No.3 and he has executed a Gift Deed in favour of defendant No.2 and additionally the Release Deed has been executed by them in favour of defendant Nos.1 and 2. Ex.D.4 is the certified copy of the Sale Deed dtd.12.10.2006 executed by Renukamma in favour of defendant No.3 in respect of 30 guntas of land in Survey Number- 161. Ex.D.5 is the certified copy of Gift Deed dated 06.04.2009 executed by defendant No.3 in favour of his daughter defendant No.2 in respect of 19 OS No.25809/2009 30 guntas of land in Survey Number- 161 of Begur village.
13. The plaintiff claims that the suit property originally belonged to one Kaverappa. The plaintiff has produced and got RTC as per Ex.P.4 in respect of Survey Number- 161, wherein the name of Kaverappa-the vendors of the planitiff is not forthcoming and katha is entered as 'Naukari Inam' and in the cultivator's column, name of Kaverappa is not mentioned. Apart from the same, plaintiff has produced tax paid receipts as per Ex.P.2, 5 to 7.
14. Whereas, flow of title in respect of land measuring 1 Acre in Survey Number- 161 of Begur village is mentioned in defendants Sale Deed marked at Ex.D.1. It is incidentally clarified in the Sale Deed 20 OS No.25809/2009 that in the Sale Deed of the vendor's vendor of Defendant's the Survey Number- has been wrongly mentioned as Survey Number- 162 instead of 161, though the land sold was in Survey Number- 161. After reciting about the said mistake in the description of Survey Number in the Sale Deed of the vendors vendor of the defendants, the flow of title in respect of Survey Number- 161 land is mentioned at pages-5 to 7 as below:-
"This property was considered for re-grant under the Inams Abolition Act (Service Inams) and the Tahsildar in Case No.HOA.185/80-81 dated 16.05.1983 re-granted 1 Acre 20 guntas in favour of Smt.Eramma,, 30 guntas each in favour of Pillappa, Halu Mauniswamppa, Motappa, 20 guntas in favour of Halu Narayanappa, 6 guntas in favour of Ramaswamy, 30 guntas in favour of Puttamma.
Whereas the non grantees under the Order of the Tahsildar aforesaid having challenged the above order in other Higher Courts after remand the Tahsildar by his order dtd. 14.03.1995 re-granted the property in Sy No. 21 OS No.25809/2009 161 ad-measuring 1 acre and 20 guntas in favour of Eranna 30 guntas each in favour of Pillappa S/o Hanumanthappa, Halu Muniswamppa 30 guntas in favour of Motappa S/o Y.Munsiwamy and 1 acre 20 guntas in favour of Halu Narayana Swamy S/o Halu Munuswamy 6 guntas in favour of Ramaswamy S/o Halu Narayanappa and 30 guntas in favour of Smt.Puttamma W/o Chikka Muniyappa.
The above said Eranna's name was mutated in the revenue records of the Government as owner in possession of the property measuring 1 Acre and 20 guntas.
Whereas E Nagaraj @ Peddanna S/o Eranna, E.Ramaiah S/o Eranna E Sampangi S/o Eranna, Smt. Parvathamma W/o E.Nagaraj @ PennannaPennanna, Smt. Prema W/o E Ramaiah, Smt. Savitha W/o E. Sampangi, Nandini D/o E.Nagaraj, Manjunatha S/o E Nagaraj, Nandeesha S/o E. Nagaraj, Naveen S/o E.Ramaiah, Prasad S/o E.Ramaiah, Mahesha S/o E.Sampangi, Baby D/o E. Samapangi have sold the property represented by their power of attorney holder B.R.Rajanna S/o B.C.Ramesh in favour of the Vendors herein by Sale deed dtd. 06.10.2004, which document is registered as document No.BNG(U)-BLR(S) 17421/04-05 at pages 1 - 10 in the office of the Sub Registrar, Bangalore South Taluk for valuable consideration". 22
OS No.25809/2009 According to the above recital, 1 Acre 20 guntas came to be regranted in favour one Eranna and 30 guntas each in favour of Pillappa s/o Hanumanthappa, Halu Muniswamppa, and 30 guntas in favour of Motappa S/o Y Muniswamy and 1 Acre 20 guntas in favour of Halu Narayanaswamy S/o Halu Muniswamy, 6 guntas in favour of Ramaswamy S/o Halu Narayanappa and 30 guntas in favour of Smt. Puttamma W/o Chikka Muniyappa. Eranna's legal heirs sold the land of Eranna in favour of vendor of defendant No.3 through a Power of Attorney Holder by name B.R.Rajanna. Thus, the defendants are claiming flow of title in respect of 1 Acre in Survey Number- 161 through Eranna only.
15. The Sale deed at Ex.D.4 shows that Ranukamma has purchased land measuring 30 guntas 23 OS No.25809/2009 in Survey Number- 161 which had been re granted to Motappa from his Legal heirs under a Sale Deed dtd. 1.6.2005. In turn she has sold the said 30 guntas in favour of defendant No.3. The defendants have also produced RTCs which show that earlier 30 guntas was in the name of Renukamma-their vendors under Ex.D.2 Sale Deed. In the katha column names of Legal representatives of Eranna are mentioned. In the later RTCs name of Defendant No.3 is mentioned. The parties have not produced re-grant documents before the court. In Ex.D.32 to 36, 38 the RTCs in respect of Survey Number- 161 produced by the Defendants too, the name of planitiff's vendor Kaverappa is not forthcoming.
16. It is the contention of the plaintiff counsel that even though in the plaintiff's sale deed Survey Number 24 OS No.25809/2009 is not mentioned , his Vendor Kaverappa did not have any other land, except Survey Number- 161 and hence what has been sold to Plaintiff by Kaverappa under Ex.P.1-Sale deed is the site No.52 formed in Survey Number- 161 of Begur village. It is the contended that the General Power of Attorney on the basis of which it is claimed that Erappa's legal heirs sold 1 Acre 20 guntas in favour of the vendor of defendant No.3, the defendants have not produced the said General Power of Attorney executed by the legal heirs of Eranna in favour of one B.R.Rajanna who is shown as General Power of Attorney Holder.
17. Learned counsel for the plaintiff argues that Kaverappa had formed revenue sites in the land and sold suit schedule site to the planitiffs. Hence, the plaintiff have derived title to the suit schedule site and after the suit was filed, defendants in violation of the 25 OS No.25809/2009 interim order of injunction have put up construction and the same is liable to be removed and possession should be ordered to be handed over to the plaintiff
18. I have perused the records and considered the rival contentions.
19. In the plaint, plaintiff claims that the suit schedule site is carved out in Survey Number- 161 and 162 of Begur village. This fact has been seriously disputed by the defendants. When that is so, in the plaintiff's Sale Deed marked at Ex.P.1 there is no mention of any Survey Number and only House List Number and Katha Number have been mentioned without any reference to the Survey Number of the land in which the said site has been cared out. The contention of the plaintiff is that the vendor did not 26 OS No.25809/2009 have any other land except Survey Number-161. This contention in my opinion is quite hallow and based on the said contention, plaintiff version that the suit schedule site has been carved out in Survey Number- 161 of Begur village, belonging to the vendors cannot be accepted. Further DW.1 in his cross examination states that Kaverappa possessed other lands, though could not give details. In the Sale Deed of the plaintiff it is mentioned that when the suit schedule site was purchased it comprised a building. But, the plaintiff has not explained anything as to what happened to the said building which was allegedly in existence when the suit property was purchased. Of-course, plaintiff claim that after the suit was filed, defendants trespassed into the suit schedule site and by demolishing the compound wall constructed by the plaintiff around the suit schedule site plaintiff was dispossessed. But, the 27 OS No.25809/2009 plaintiff does not state anything about the building which was allegedly situated in the suit schedule site as per the description made in the schedule of the Sale Deed produced at Ex.P..1. In the schedule of the Sale Deed there is clear mention that at the time of the sale made to the plaintiff there existed a house.
20. When so, in the cross examination of PW.1, PW.1 has deposed that when the suit schedule property was purchased the title documents of the vendors were not verified and the survey number in which the suit site is situated was not ascertained through the Surveyor, but it was known as to in which Survey Number the suit schedule site was situated. He further states that in Ex.P.1-Sale Deed Survey Number is not mentioned, but the same is situated in Survey Numbers-161 and 162 of Begur Village and no other 28 OS No.25809/2009 documents have been produced and except the Sale Deed, RTC and other documents which have already been produced. He admits that the plaintiff's name is not there in the R.T.C and he does not know the total extent of the land in the above Survey Numbers and their boundaries. PW.1 states that there is a layout plan in respect of the sites formed in Survey Numbers-161 and 162 of Begur village and as per the said Layout Plan, he locates the suit site in Survey Number- 161. After stating so, he admits that he has not produced any layout plan before the court. In the plaint it has been stated that the lay out Plan has been produced in the suit. However, no such layout plan has been produced before the court. At para-16 of the cross examination PW.1 states that initially site had not been marked, but afterwards layout plan was prepared and the site was demarcated. Then he states that when the 29 OS No.25809/2009 suit site was purchased there existed a temporary shed and after purchase compound was constructed. PW.1 states that he never resided in the suit property and constructed any house in the suit property. At para-17 of the cross examination PW.1 again states that he cannot identify the suit property , but adds that since his suit site has been encroached upon, he cannot identify the suit property.
21. PW.1's deposition at paras-15 to 17 is as follows: -
"15. ನನನನ ದನವಸಸತತನನನ ತತಗತದನಕತಕಳನಳವ ಪಪನವರದಲಲ ಆಸತಯ ದನಖಲನತಗಳ ಬಗತಗ ಪರಶಶಲನತ ಮನಡರನವಪದಲಲ ಮತನತ ಅದರ ಬಗತಗ ವಕಶಲರ ಅಭಪನಪಯವನನನ ಪಡತದರನವಪದಲಲ ಹನಗತಶ ದನವಸಸತತನನನ ಯನವ ಸರತರ ನನಬರರ ನಲಲ ಬರನತತದತ ಎನದನ ತಳಯಲನ ಸರತರಯರನನನ ಕಕಡ ನತಶಮಸಕತಕನಡನ ಪರಶಶಲಸರನವಪದಲಲ. ನನನನ ದನವಸಸತತನನನ ತತಗತದನಕತಕಳನಳರನಗ ಅದನ ಯನವ ಸರತರ ನನಬರರ ನಲಲ ಬರನತತತನತ ಎನಬ ಬಗತಗ ಗತಕತತತನತ. ಸರತರ ನನಬರರ ಬಗತಗ ನಮಮ ಕಪಯಪತಪದಲಲ ಗತಕತನತಗದನದ ಇರನತತದತ. ನ.ಪ.-1 ರಲಲ ಸರತರ ನನಬರರ ನಮಕದನ ಇಲಲ ಎನನನವಪದನ ಸರ. ಸರತರ ನನ.161 ಮತನತ 162 ರಲಲ ನನನ ದನವಸಸತನತ ಬರನತತದತ. ಇಲಲ ಹನಜರನಪಡಸರನವ ದನಖಲನತ ಬಟನಟ ಬತಶರತ ಯನವಪದತಶ ದನಖಲನತ ನನನ ಬಳ ಇರನವಪದಲಲ. ನನನನ ಹತಶಳನವನತಹ ಸರತರ ನನಬರರ ಆರರ.ಟ.ಸಯಲಲ ನಮಕದನ ಇರನತತದತ, ಬತಶರತ ದನಖಲನತಯಲಲ ಇರನವಪದಲಲ ಆರರ.ಟ.ಸ. ನನನ ಹತಸರನಲಲ ಇರನವಪದಲಲ. ನನನನ ಹತಶಳನವನತಹ ಸರತರ ನನಬರರ ಗಳಲಲ 30 OS No.25809/2009 ಒಟನಟ ಎಷನಟ ಎಕರತ ವಸತಶರರ ಇದತ ಮತನತ ಅದರ ಚತಕಕನದ ಏನನ ಎನದನ ಹತಶಳಲನ ಆಗನವಪದಲಲ. ಸದರ ಸರತರ ನನಬರರ ಆಸತಯಲಲ ಪನಲನರಪಪಕನರ 46 ಸತಸಟನಗಳನ ತತಕಶರಸದನದ ಮನತಪ ನನಗತ ಗತಕತತರನತತದತ, ಆದರತ ಎಷನಟ ಸತಸಟನಗಳನನನ ಮನಡದದರನ ಎನದನ ನನಗತ ಗತಕತತರನವಪದಲಲ. ಸರತರ ನನ.161 ಮತನತ 162 ಆಸತಯ ಮದಲನ ಮನಲಶಕರನ ಕನರತಶರಪಪ ಮತನತ ಅವರ ತನದತ ಮಶಟಪಪ ಇದದರನ. ನನನ ಸತಸಟನ ಸರತರ ನನ.161 ರಲಲ ಬರನತತದತ. ಯನವ ಆಧನರದಲಲ ನನನ ಸತಸಟನ ಸರತರ ನನ.161 ರಲಲ ಬರನತತದತ ಎನದನ ಹತಶಳನತತಶರ ಎನದರತ ಲತಶಔಟರ ಪನಲನರ ಪಪಕನರ ಹತಶಳನತತತಶನತ . ಸದರ ಲತಶಔಟರ ಪನಲನರ ಇಲಲ ಹನಜರನಪಡಸರನವಪದಲಲ. ಲತಶಔಟರ ಪನಲನನನನ ಪನಚನಯತಯ ಅಧಧಕಕರನ ಅನನಮಶದಸರನತನತರತ. ನನನನ ಹತಶಳನವನತಹ ಯನವಪದತಶ ಪನಲನರ ಇಲಲ ಮತನತ ಪನಚನಯತ ಅಧಧಕಕರನ ಅನನಮಶದನತ ಮನಡಲಲ ಎನನನವಪದನ ಸರಯಲಲ.
16. ನನನನ ಮದಲನತ ಬನರ ಎನದರತ ಕಪಯಕತಕ ತತಗತದನಕತಕಳನಳವ ಪಪವರದಲಲ ದನವಸಸತನತ ನತಕಶಡದತದ, ಆನನತರ ಮಕರನ ಬನರ ಹತಕಶಗ ನತಕಡನತತದತದ. ಪನಪರನಭದಲಲ ಸತಸಟನ ಗನರನತನ ಮನಡರಲಲಲ ಆನನತರ ಲತಶಔಟರಪನಲನರ ಮನಡ ಸತಸಟನ ಗನರನತನ ಮನಡದರನ. ನನನನ ತತಗತದನಕತಕಳನಳರನಗ ದನವಸಸತತನಲಲ ತನತನಕಲಕ ಒನದನ ಶತಡನಡ ಇತನತ, ಆನನತರ ನನನನ ಕನನಪಪನಡರಹನಕಸದನದ ಇರನತತದತ. ದನವಸಸತತನಲಲ ಸತಸಟರನನಬರರ ಮತನತ ಸರತರ ನನಬರನನನ ನನನನ ತತಗತದನಕತಕಳನಳರನಗ ಬರತದರಲಲಲ. ಅಲಲ ಡನನಬರನ ರಸತತ ಇರಲಲಲ, ಆದರತ ಕಚನಚರಸತತ ಇತನತ, ನನನನ ಯನರನಗಲಕ ಕಕಡ ದನವಸಸತತನಲಲ ರನಸ ಇರಲಲಲ. ದನವಸಸತತನಲಲ ನನನನ ಮನತಯನನನ ಕಟಟರನವಪದಲಲ.
17. ಈಗ ನನನ ದನವಸಸತತನನನ ಗನರನತಸಲನ ಆಗನವಪದಲಲ, ಕನರರ ನನನ ಸತಸಟನ ಅತಕಪಮರರನಗರನತತದತ. ದನವಸಸತನತ ಬತಶಗಕರನ ಗನಪಮ ಪನಚನಯತಗತ ಮದಲನ ಬರನತತತನತ. ನನನನ ಬತಶಗಕರನ ಗನಪಮ ಪನಚನಯತಗತ ಕನದನಯ ಕಟಟದತದಶನತಕಶ ಇಲಲವಶ ಈಗ ಹತಶಳಲನ ಆಗನವಪದಲಲ. ನನನನ ನನನ ಸಸತತಗತ ಸಸಯನಘತಕಶಷತ ಆಧನರದನದ ಕನದನಯ ಕಟಟರನತತತಶನತ".
22. The plaintiff has produced an unauthenticated copy of the Google Map as per Ex.P.8. On the basis of the same plaintiff has tried to locate and identify the 31 OS No.25809/2009 suit schedule site in Survey Number- 161. But, Ex.P.8 is not bear any type of authenticity and does not even bearing any indication that it is a print out of Google Map. Hence, Ex.P.8 cannot be relied on. In the cross examination of Defendant No.1/D.W.1 he states that in the year 2006-07 he had enquired with Kaverappa and Eranna about the land in Survey Number- 161 and 162 by showing the RTC and they had informed that they were agricultural lands and not converted for non agricultural purpose and they had also informed that they had not sold any portion in Survey Numbers-161 and 162 to any one.
23. Defendants Sale Deed dtd. 12.10.2006 which is produced on their behalf shows that the land in Survey Number- 161 had been re-granted in favour of Eranna, Pillappa, Halu Muniyappa, Motappa, 32 OS No.25809/2009 Ramaswamy and Puttamma. The parties have not produced any grant certificate before the court. Plaintiff has not produced any document to prove that earlier the suit property belonged to Kaverappa.
24. The description of the property purchased under Ex.P.1 Sale Deed do not disclose that same was purchased in Survey Number- 161 or Survey Number- 162 of Begur village. Of-course, the defendants are not claiming any right in Survey Number- 162. The description of the schedule in the Sale Deed of the plaintiff show that there existed a house in the said site when it was sold. But, plaintiff has not mentioned anything about the same in the plaint and only during the cross examination, PW.1 states that a shed was existing in the suit schedule site. But, the plaintiff does not explain as to what happened to the said shed. Though the plaintiff state that there exists approved 33 OS No.25809/2009 layout plan in respect of the suit schedule property, same has not been produced before the court. Hence, identity of the suit schedule site has not been established before the court. On one hand the Sale Deed of the plaintiff is not disclosing that the suit schedule site was carved out in Survey Number-161 and there is no reference whatsoever in that regard in the Sale Deed of the plaintiff. On the other hand, there is no plan or other acceptable material for identification of the site purchased under Ex.P.1-Sale Deed in Survey Number-161. Further, there is no material produced to show that the plaintiff's vendor had title to suit property.
25. In this background, the settled principle of law that the plaintiff who seek relief of declaration of title and possession have to establish their case on 34 OS No.25809/2009 their own strength and cannot take advantage of the weakness of the defendants case, will have to be invoked. Since the identity of the suit property cannot be made out from the schedule of the plaintiff Sale Deed with reference to the plaintiff claims that the same is carved out in Survey Number-161 and 162 of Begur village, and also title of plaintiff's vendor is not proved, I am of opinion that the plaintiff title to the suit property has not been established.
26. Even the plaintiff possession of the suit schedule property earlier to the filing of the suit cannot be accepted with reference to its identity. When the plaintiff has failed to establish title with reference to the identity of the suit schedule property having described it in the plaint as residential site without mentioning the existence of any structure or 35 OS No.25809/2009 compound wall, except for later amending the plaint to state that after the suit was filed compound wall was demolished by the defendants, plaintiff's contention that the plaintiff was in possession of the suit schedule site on the date of filing the suit cannot be accepted. Now the defendants have put up the construction. Defendant No.1/DW.1 states that the construction was put up even before the sanctioned plan was obtained. There is nothing elicited in the cross examination of DW.1 to support the plaintiff's contention that the construction has been put up subsequent to filing of the suit. If the plaintiff had established title with reference to the identity of the suit property then the presumption could have been raised on the principle possession follows the title. But, in this case, plaintiff having failed to establish title with reference to the identity of the suit property, said presumption cannot 36 OS No.25809/2009 be raised. As a result, plaintiff's case that earlier to filing of the suit the plaintiff was in possession of the suit schedule property and after suit was filed compound wall put up around the suit schedule property and it was demolished by the defendants cannot be accepted.
27. In these circumstances, I am of opinion that the plaintiff has failed to prove that as on the date of the suit plaintiff was in lawful possession of the suit schedule property. The plaintiff has also failed to prove title to the suit property. Consequently, Issue No.1 is answered in negative and Addl. Issue No.1 is answered in negative.
28. Issue No.2 and Addl. Issue No.2:- The plaintiff having failed to prove his possession of the 37 OS No.25809/2009 suit property as on the date of the suit as well as title to the suit property with reference to the identity, the contention that the defendants interfered with plaintiff's possession of the suit property cannot be accepted. As a result, plaintiff is not entitled to any relief sought for in the suit. Consequently issue No.2 and Addl. Issue No.2 are answered in the negative.
29. Addl. Issue dtd. 30.10.2015:- Since the plaintiff has not proved possession of the suit property as on the date of the suit, plaintiff ought to have valued the suit under section 24(a) of the Karnataka Court Fees and Suits Valuation Act and paid the court fee on the market value of the suit property. As the plaintiff has not proved that after filing of the suit, the defendants damaged the compound wall and dispossessed the plaintiff from the suit property, 38 OS No.25809/2009 plaintiff cannot value the relief of possession by way of seeking mandatory injunction under section 26(b) of the Karnataka Court Fees and Suits Valuation Act. Therefore, the court fee paid by the plaintiff in Rs.25/- under section 24(b) of the Karnataka Court Fees and Suits Valuation Act is incorrect. The plaintiff has described the suit schedule property as residential site and hence on the market value of the suit property the plaintiff is liable to pay the court fee under section 24(a) of the Karnataka Court Fees and Suits Valuation Act. Consequently, Addl. Issue dtd. 30.10.2015 is answered in the negative.
30. Issue No.3 :- For the reasons stated above, I proceed to pass the following :-
ORDER Suit of the plaintiff is dismissed with cost.39
OS No.25809/2009 The plaintiff shall file fresh valuation slip and pay the deficit court fee in respect of the suit property under section 24(a) of the Karnataka Court Fees and Suits Valuation Act.
Decree shall be drawn upon payment of deficit court fee by the plaintiff.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me, on this the 8th day of October, 2021) (D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c IV ACC & SJ., Mayo Hall, Bengaluru.40
OS No.25809/2009 ANNEXURE
1. List of witnesses examined for the plaintiff:
P.W.1 Sri.M.Jayaraman
2. List of witnesses examined for defendants:-
D.W.1 Tony Vincent
3. List of documents exhibited for the plaintiff:
Ex.P.1 Original Sale Deed
Ex.P.2 Tax paid receipt
Ex.P.3 Tax demand register extract
Ex.P.4 Copy of the R.T.C
Ex.P.5-7 Tax paid receipts
Ex.P.8 Copy of Google map
41
OS No.25809/2009
4. List of documents exhibited for defendants:
Ex.D.1 Certified copy of the Sale Deed Ex.D2 Certified copy of the Release Deed dtd. 16.02.2010 Ex.D.3 Encumbrance Certificate Ex.D.4 Certified copy of the Sale Deed dtd. 12.10.2006 Ex.D.5 Certified copy of the Gift Deed Ex.D.6 Encumbrance Certificate Ex.D.7 Mutation Copy Ex.D.8-9 Mutation Copies Ex.D.10-15 R.T.C Ex.D16 IIFL Letter Ex.D.17 Certified copy of the Official memorandum dtd. 25.5.2009 Ex.D.18 Certified copy of the sketches Ex.D.19 Payment receipts Ex.D.20 Certified copy of the tax paid 42 OS No.25809/2009 receipts Ex.D.21 Certified copy of the Encumbrance Certificate Ex.D.22 Certified copy of the Official memorandum dtd. 25.9.2009 Ex.D.23 Certified copy of the tax paid receipt Ex.D.24 Certified copy of the Katha Certificate Ex.D.25 Certified copy of the Katha Extracts Ex.D.26 Certified copy of the Encumbrance Certificate Ex.D.27 Certified copy of the Official memorandum dtd. 25.02.2013 Ex.D.28 Certified copy of the village survey dtd. 1.2.2011 Ex.D.29 Certified copy of the sketches Ex.D.30 Tax paid Receipt dtd. 7.5.2009 Ex.D.31 Katha Certificate Ex.D.32 Vacant site Register Extracts 43 OS No.25809/2009 Ex.D.33 Sanctioned Plan issued by the B.D.A. Ex.D.34-48 C.D. and Photos Ex.D.49 Certified copy of the Phod and Survey map.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c IV ACC & SJ.,Mayo Hall, Bengaluru.44
OS No.25809/2009 (Judgment pronounced vide separate judgment) ORDER Suit of the plaintiff is dismissed with cost.
The plaintiff shall file fresh valuation slip and pay the deficit court fee in respect of the suit property under section 24(a) of the Karnataka Court Fees and Suits Valuation Act.
Decree shall be drawn upon payment of deficit court fee by the plaintiff.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge & C/c IV ACC & SJ.,Mayo Hall, Bengaluru.