Bangalore District Court
Sri. M.S. Ravikumar vs Smt. Shobharani W/O N on 19 March, 2018
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT
SRI. VENKATARAMAN BHAT, B.Sc.,., LL.B. (Spl.)
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 19th DAY OF MARCH 2018
OS.NO.10513 OF 2015
PLAINTIFF/S SRI. M.S. RAVIKUMAR
S/O SHIVAIAH
AGED ABOUT 34 YEARS,
RESIDING AT No 152/2-2, 1ST CROSS,
1ST MAIN, ANANTHARAMAIAH
COMPOUND, CHAMARAJPET,
BANGALORE - 560 018..
(By Sri. R.P. Somashekaraiah, Adv.)
Versus
DEFENDANT/S 1. SMT. SHOBHARANI W/O N.
VIJAYKUMAR, AGED ABOUT 53
YEARS.
2. SRI. NAGARAJU S/O N.
VIJAYKUMAR, AGED ABOUT 30
YEARS.
BOTH ARE RESIDING AT No. 3132/25,
2ND CROSS, GAYATHRINAGAR,
BANGALORE - 560 021.
(By Sri. K. Shivaji Rao, Adv.)
Date of Institution of the suit 26.12.2015
Nature of suit Suit for permanent and
mandatory injunction
2
O.S.No. 10513 / 2015
Date of commencement of 20.06.2016
recording of evidence.
Date on which judgment was 19.03.2018
pronounced.
Total Duration. Years Months Days
02 02 25
XXXVII ACCJ, BANGALORE
3
O.S.No. 10513 / 2015
JUDGMENT
Plaintiff filed this suit for permanent and mandatory injunction. Permanent injunction is to the effect that the Defendants, their agents may be restrained by grant of permanent injunction from interfering with the possession of the plaintiff over the suit schedule property. Mandatory injunction is in the form of direction, directing the Defendants to remove the construction / foundation put up by them in the entire suit schedule property.
2. The brief facts of the case are as under.
Plaintiff claims his absolute owner ship and possession over the suit schedule property under a registered sale deed dated 06.02.2013 executed by his vendor by name Sri. T.K.T.G. Srinivasan. The suit schedule property is more particularly shown as under.
SCHEDULE All that piece and parcel of property bearing Site No 53, property No 1668/53 VP Katha No 1568 formed in Sy.No. No 52 of Mallathahalli Village, Yeshwanthpura Hobli, Bangalore North Taluk then Rajarajeswari CMC Katha Sl.No.128 at present the property is comes under BBMP Jnanabharati Ward No129, Vide BBMP PID No 130/128/53/42, Mallathahalli, named as Channappa Layout, Ullal Raod, Jnanajyothinagara, Bangalore - 56, measuring to an extent of East to West 40 ft. and North 4 O.S.No. 10513 / 2015 to South 30 ft. totally measuring 1200 sq.ft. and bounded on.
East by : Site No. 46
West by : 25 ft. road.
North by : Site No. 52,
South by : Site No. 54.
On the basis of the registered sale deed, Katha has been changed into the name of plaintiff. Plaintiff as owner used to pay taxes to the BBMP. In fact, the suit schedule property is situated within the jurisdiction of BBMP at Ward-129. According to the plaintiff Sy.No. No42, was totally measuring 2 acres situated at Mallathahalli Village, Yeshwanthpura, Bangalore North Taluk owned by Rangappa and Venkatesh. It was purchased by Sri. Chennappa, Sri. Jayaramu and Sri. K.V. Narayanamurthy under a registered sale deed. After the purchase of the said property purchasers formed a layout in the said property. The said K.V. Narayanamurthy and others by virtue of the General Power of Attorney with affidavit was placed possession of the suit schedule property in favour of one Sri. Vipul Kumar S/o Jithendra Shah dated 09.05.1991. By virtue of the said General Power of Attorney and affidavit dated 09.05.1991 the said Vipul Kumar executed the sale deed in favour of one Sri. Manish Kothari under a registered 5 O.S.No. 10513 / 2015 sale deed dated 19.02.1998. Accordingly, Sri. Manish Kothari was put into possession of the said property. Subsequently, the said Sri. Manish Kothari sold this property in favour of Smt. B. Malathi under a registered sale deed dated 04.07.2003. Accordingly, the said Malathi was put into possession of the said property. Later Smt. Malathi executed sale deed in favour of T.K.T.G. Srinivas who was vendor of the plaintiff under a registered sale deed dated 24.04.2010. Thereafter T.K.T.G. Srinivas sold this property in favour of the plaintiff on 06.02.2013. The plaintiff and his predecessor in title were put into possession of the said property.
That being the state of affairs, the Defendants without any right, title and interest over the suit schedule property made an attempt to encroach the schedule property on 20.11.2015. Though complaint was lodged before the jurisdictional police, they did not take any action since it is a civil matter. It is alleged that Defendants under the guise of laying claim over the site No. 52, which is situated on the northern side of the schedule property encroached the suit schedule property. Ultimately, the Defendants put up a foundation in the suit schedule property. Without any alternative plaintiff was constrained to file this suit. 6
O.S.No. 10513 / 2015
3. On being summoned, Defendants put appearance through their Advocate and filed written statement.
Defendant No.1 is none other than mother of the Defendant No.2. According to the Defendants suit is not maintainable. All the allegations of the plaint are denied by these Defendants. According to these Defendants they purchased the site No.52, Katha No. 66, Assessment No. 42 measuring East to West 40 ft. and North to South 30 ft. with structures under a registered sale deed dated 24.10.2002. After the purchase of the vacant sit No. 52 Defendant No.1 put up structure in the said property and leased out the same in favour of one Smt. Uma on monthly rent of Rs. 500/-. That being the state of affairs, one Sri. Manjunath who is a BJP leader tried to interfere with the possession of the Defendant No.1. Under these circumstances, the Defendant No.1 was constrained to file suit at O.S. No. 857 fo 2013 before the City Civil Court, for permanent injunction against the said Manjunath. That suit was decreed. It is further submitted that vendor of the plaintiff by name T.K.T.G. Srinivas as a plaint filed O.S. No. 4424 of 2011 against this Defendant No.1 and that suit was withdrawn. It is submitted that property 7 O.S.No. 10513 / 2015 bearing Site No. 53 belongs to the plaintiff, whereas the site No.52 belongs to the Defendants. It is further submitted that the judgment passed in O.S. No. 857 of 2013 is binding on the plaintiff also. The suit is barred by Re-judicata. The suit is hit by provisions of Under Order 2 Rule 2 CPC by withdrawal of the suit by the vendor of the plaintiff at O.S. No. 4424 of 2011 is Order 2 Rule 2 CPC. It is further denied para 4 to 7 of the plaint. It is submitted that suit for permanent injunction without seeking declaration of title is not maintainable. All other allegations are specifically denied by these Defendants. On these grounds, the Defendants pray for dismissal of the suit.
4. Out of the above pleadings, the following issues were framed.
(1) Whether the plaintiff proves that he is the absolute owner in legal possession of the suit schedule property?
(2) Whether plaintiff proves that the Defendants by encroaching the suit schedule property put up construction and laid foundation in the suit schedule property?
(3) Whether the Defendants prove that the suit is barred by principles of Re-judicata in view of the judgment and decree in O.S. No. 857 of 2013?8
O.S.No. 10513 / 2015 (4) Whether the Defendants prove that the suit is barred under Order II Rule 2 of CPC in view of the order passed in O.S. No. 4424 of 2011?
(5) Whether the Defendants prove that the suit is bad for mis-joinder and non-joinder of necessary parties?
(6) Whether the Defendants prove that the court fees paid by the plaintiff is insufficient?
(7) Whether the Defendants prove that the suit is barred by limitation?
(8) Whether the plaintiff is entitled for the relief of permanent injunction as prayed?
(9) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed?
(10) What order or decree?
5. Plaintiff was examined as PW 1 and E.P1 to P44 got marked. One Smt. Shanthakumari was examined as PW 2. Husband of the Defendant No.1 and father of the Defendant No.2 was examined as DW 1. by virtue of the General Power of Attorney, Ex.D1 to D16 got marked. After closure of the evidence of plaintiff side, the plaintiff filed an application under Order 26 Rule 9 CPC for the appointment of Court Commissioner to identify the suit schedule property and site No. 52. An order came to be passed to the effect that 9 O.S.No. 10513 / 2015 application will be considered at the time of arguments on main suit.
6. Heard submissions of both Advocates on this application and also merits of the case.
7. In the light of the above contentions, now, the points that would arise for consideration are as under.
(1) Whether application filed by plaintiff under Order 26 Rule 9 CPC is entitled to be allowed?
(2) What order?
8. Apart from oral arguments, Advocate for Defendants submitted notes of written arguments also.
9. On appreciation of the evidence, my findings on the above issues and on the application filed under order 26 Rule 9 CPC are as under.
Issue No.1 : In negative
Issue No.2 : In affirmative.
Issue No.3 : In negative
Issue No.4 : In negative
Issue No.5 : In negative
Issue No.6 : In negative
Issue No.7 : In negative
Issue No.8 : In negative
Issue No.9 : In negative
Point No.1 : In negative
Issue No.10 &
Point No.2 : As per final order, for the
following.
10
O.S.No. 10513 / 2015
REASONS
10. ISSUE No.1 & 2 & POINT No.1: For the sake of
convenience and also to avoid repetition of facts, I would like to discuss these two issues together.
11. Plaintiff claimed his absolute ownership over the suit schedule property by virtue of the registered sale deed dated 06.02.2013. The suit schedule property as claimed by the plaintiff is identified as Site No. 53 out of Sy.No. No. 42 of Mallathahalli Village, Bangalore North Taluk. On the other hand, Defendants are claiming their title and interest over the site No. 52 out of Sy.No. No. 42 of the same village. Onething is very clear that a private layout has been formed by K.V. Narayanamurthy and others who purchased an extent of 2 acres out of St. No. 42 of Mallathahalli village, Yeshwanthpura Hobli, Bangalore North Taluk. It was a private layout. In other words, there is no approved layout plan issued by the competent authority and number of sites were formed in Sy.No.42. Defendant No.1 is one of the purchase of site No. 52 which is situated on northern side of the site No. 53 i.e. suit schedule property. According to the Defendant No.1 SHE purchased the site No. 52 under the registered sale deed dated 11 O.S.No. 10513 / 2015 24.10.2002. Whereas the plaintiff claimed his absolute right, title and interest over the site No. 53 by virtue of the registered sale deed dated 06.02.2013. In other words, site No. 52 and 53 are clearly identified as different sites formed in Sy.No. No. 42. THE dimension of both sites are equal and each site is measuring 40 x 30 ft. According to the plaintiff since the Defendants are interfering with his possession over the suit schedule property, he was constrained to file this suit. Apart from this interference, it is further alleged that the Defendants have encroached the entire suit schedule property and put up foundation thereon 15.12.2015. For the said reason the plaintiff seeks mandatory injunction directing the Defendants to remove the structure / foundation put up by the Defendant No.1 in the entire suit schedule property. It means that according to the plaintiff, Defendants have encroached the entire suit schedule property and put up foundation / structure thereon. That being the position, first of all, the plaintiff is required to prove whether the Defendants have encroached any portion of the suit schedule property. Ex.P6 is the certified copy of the registered sale deed of the plaintiff which was executed by his vendor Sri. T.K.T.G. Srinivas on 06.02.2013. During the course of argument, 12 O.S.No. 10513 / 2015 Advocate for Defendants submitted that proper remedy of the plaintiff is to file a suit for declaration and possession, but not suit for permanent injunction. On this aspect he referred a decision reported in (2008) 4 SUPREME COURT CASES 594 (ANATHULLA SUDHAKAR VS. P. BUCHI REDDY (DEAD BY LRs AND OTHERS). Hon'ble Supreme Court made position in regard to the suit for prohibitory injunction relating to immovable property as under.
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the 13 O.S.No. 10513 / 2015 remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight- forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
12. Keeping in mind these essential principles laid down by the Hon'ble Apex Court, I would like to appreciate oral as well as documentary evidence placed before this Court by the parties. As it is already stated it is alleged by the plaintiff that the Defendants have encroached the suit schedule property on 15.12.2015 and put up a structure thereon in the entire suit schedule property. On the other hand, it is specific contention of the Defendants that after purchase of the site No. 52, Defendant No.1 put up structure and inducted a tenant by name Smt. Uma on monthly rent of Rs.500/- . It is pertinent to note that plaintiff and Defendants are not asserting their right over the same site. On the other hand, Defendants are 14 O.S.No. 10513 / 2015 claiming their right over the site No. 52. Whereas the plaintiff is claiming his right over site No.53. One thing is very clear that there is no dispute with regard to identity of either site No.52 or 53. The court is required to give finding on the basis of the evidence adduced by the parties whether the Defendants have encroached the suit schedule property. It is a question of fact and shall be decided on the strength of the evidence adduced by the respective parties.
13. Learned Advocate for Defendants submitted that the very title of the plaintiff is defective and no transfer of valid title in favour of the plaintiff. On the other hand, the learned Advocate for plaintiff submitted that as per Ex.P6, the plaintiff purchased the suit schedule property and there is a title deed in favour of the plaintiff and Katha has been changed into the name of plaintiff and plaintiff used to pay taxes to the concerned authorities. No where the plaintiff disputed the title of the Defendants over site No. 52. Likewise, no where the Defendants have disputed the right of the plaintiff over the site No.53. It is more relevant to extract relevant para of the written state on this aspect, which reads as under. 15
O.S.No. 10513 / 2015 "By way of clarification it is submitted that the property of the plaintiff bears site No. 53 while property of these Defendants bears site No. 52 and so also boundaries are different. Neither the plaintiff nor his vendor were in possession of the property. As it is already stated, now the only question for consideration is whether the plaintiff is able to prove encroachment of the Defendants and unauthorized put up foundation in the the suit schedule property."
14. Defendants have taken up a specific contention in the written statement to the effect that the title of the plaintiff is defective. In other words, Defendants have specifically denied the title of the plaintiff over the suit schedule property. At the first instance, the Defendants have admitted the ownership of the plaintiff over site No. 53. Secondly, it is denied the title of the plaintiff over the suit schedule property. Now, the question would arise whether this defence is inconsistence or not. It is settled principle of law that number of defences may be taken in the written statement, including inconsistent pleas. It can be noticed that there is specific pleadings in the plaint with regard to title of the plaintiff over the suit schedule property. Plaintiff averred not only his title over the suit schedule property, it is pertinent to note at para 4 to 7 of the plaint, plaintiff averred the title of his predecessor in title over the suit schedule property.
16
O.S.No. 10513 / 2015
15. It discloses that one Sri. K.V. Narayanamurthy and others who formed a layout in Sy.No. No. 42 sold site No. 53 by virtue of the General Power of Attorney with affidavit on 09.05.1991 in favour of one Sri. Vipul Kumar S/o Jithendra Sha. During the course of argument, Advocate for Defendants questioned the transfer of valid title in favour of plaintiff much less his predecessor in title.Ex.P43 is the original General Power of Attorney said to have been executed by one Sri. K.V. Narayanamurthy and others in favour of Sri. Vipul Kumar. Ex.P4 it is the affidavit wherein the vendors of Sri. Vipul Kumar acknowledged the receipt of sum of Rs.20,000/- as sale consideration amount. Now, the question would arise whether any title can be transferred by virtue of the General Power of Attorney in favour of vendee. As per Section 54 of Transfer of Property Act, the sale is completed in case of immovable property worth more than Rs.100/-, only under the registration of sale deed. General Power of Attorney only authorizes the agent to do the work on behalf of the principal, as stated in General Power of Attorney. In other words, the General Power of Attorney is not a substitute for sale deed. When as per Section 54 of Transfer of Property Act, sale is 17 O.S.No. 10513 / 2015 completed only through registration of the sale deed, any other instrument cannot transfer title in favour of the transferee. That being the position of law, it can be stated that as per Ex.P43 and P44 no valid title has been transferred in favour of Sri. Vipul Kumar S/o Jithendra sha. During the course of argument Advocate for Defendants referred one decision reported in (2012)-1 SUPREME COURT CASES 656. The Hon'ble Supreme Court held as under.
"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (Section 1-A and Section 2, Power of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title of the grantee.
The courts will not treat transactions of the nature of "GPA Sales" of "SA/GPA/Will transfers" as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the TP Act. Such transaction cannot be relied upon or made the basis of mutations in municipal or revenue records."
16. So onething is very clear that as per law laid down by Hon'ble Apex Court any title is not transferred by virtue of the 18 O.S.No. 10513 / 2015 General Power of Attorney. That being the position of law, it is held that no valid title over the site No. 53 has been transferred in favour of Sri. Vipul Kumar S/o Jithendra Sha. Any subsequent sale deed does not confirm better title in favour of subsequent transferees. That being the position, the vendor of the plaintiff has no title over the suit schedule property. In other words, it is against the provisions of Transfer of Property Act. It can be stated that no valid title has been transferred in favour of Sri. Vipul Kumar who is predecessor in title of the plaintiff. When no valid title has been transferred, in favour of plaintiff muchless the predecessor in title of the plaintiff, the only result is that the plaintiff cannot claim his absolute ownership over the suit schedule property.
17. Now, the only question for consideration is whether the plaintiff as well as his predecessor in title were in possession of the suit schedule property. It can be noticed that vendors of the plaintiff by name T.K.T.G. Srinivas filed a suit at O.S. No. 4424 of 2011 for permanent injunction, against the Defendant No.1 and her husband. Plaint copy of this suit got marked on behalf of the Defendants. Ex.D4 is the certified 19 O.S.No. 10513 / 2015 copy of the order sheet of O.S. No. 4424 of 2011. In fact, the vendor of the plaintiff had filed this suit with respect to site No. 53. However, on 31.01.2013 vendor of the plaintiff unconditionally withdrawn that suit. It is not known as to why the vendor of the plaintiff had withdrawn that suit. There is no mention in the memo to the effect that there was out of court settlement between the parties. The only conclusion is that the vendor of the plaintiff did not press this suit for his own reasons. Soon after withdrawal of the suit, the vendor of the plaintiff sold this property in favour of plaintiff on 06.02.2013. It is pertinent to note that Defendant No.1 as a plaintiff had filed O.S. No. 857 of 2013 against one Sri. M.C. Manjunath for permanent injunction with respect to site No.
52. That suit came to be decreed after contest. There was a finding to the effect that the Defendant No.1 was in actual possession of site No. 52 out of Sy.No. No. 42. Taking into consideration all these aspects it goes to very clear that firstly, there is no valid transfer of title in favour of plaintiff with respect to suit schedule property. Secondly, the sale deed of the Defendant No.1 is much earlier than the sale deed of the plaintiff. More over the Defendant No.1 claims her right over the site No. 52. There was specific finding to the effect that 20 O.S.No. 10513 / 2015 the Defendant No.1 was in actual possession of site No. 52. On the other hand, without any reason the vendor of the plaintiff had withdrawn the suit at O.S. No. 4424 of 2011. Of course, the plaintiff has produced Katha Certificate, Katha Extract, Tax paid Receipt to prove his possession over the suit schedule property. When the title of the plaintiff is defective and cloud is surrounded over the title of the plaintiff, with regard to the suit schedule property, it cannot be held that the plaintiff is in possession of the suit schedule property.
18. PW 2 is examined as witness on behalf of the plaintiff. PW 2 is the owner of site No. 54 and 55. PW 2 was cross examined by the Advocate for Defendants. A specific question was put to PW 2 to the effect that at present the Defendants are in possession of the suit schedule property. PW 2 deposed as under.
¥ÀæwªÁ¢ FUÀ zÁªÁ ¸ÀéwÛ£À ¸Áé¢üãÀvÉAiÀÄ°èzÁÝgÀAzÀgÉ ¸Àj. ¥ÀæwªÁ¢ zÁªÁ¸ÀéwÛ£À°è ªÀÄ£É PÀlÄÖªÁUÀ £À£Àß ¸ÉÊmï£À°è µÉqï ºÁQzÀÝgÀÄ JAzÀgÉ ¸Àj.
19. It can be noticed that it is not a suggestion put to PW 2. A specific question has been put to PW 2 on this aspect. In other words, by putting this question, the Advocate for 21 O.S.No. 10513 / 2015 Defendants intended to alleged the fact that in fact, the Defendants are in possession of suit schedule property. Otherwise this type of question would not have asked, that too to the witness of the plaintiff. However, PW 2 answered that Defendants are in possession of the suit schedule property. It further disclosed that at the time of construction of the house, in the suit schedule property, the Defendants have put shed in the site of PW 2. It further clarifies that the Defendants are in possession of the suit schedule property. No more proof is required. Advocate for Defendants alleged through PW 2 to the effect that in fact, the Defendants are in possession of the suit schedule property.. It further discloses that the Defendants have put up structure in the suit schedule property and at that time they put up shed in the site of PW 2. It clearly indicates that the Defendants have encroached the suit schedule property and put up structure / foundation in the said property. It is the case of the plaintiff also that on 15.12.2015, Defendants have put up foundation in the entire suit schedule property. When the Defendants have encroached the entire suit schedule property, the question of demarcating the encroached portion does not arise. When the title of the plaintiff is defective and there is cloud is with 22 O.S.No. 10513 / 2015 regard to title of the plaintiff, there is no question of identifying two sites as claimed in the application filed under Order 26 Rule 9 CPC. Onething is clear that the Defendants are in possession of the suit schedule property. If the evidence of PW 2 is believed, the proper remedy of the plaintiff is to file a suit for recovery of possession. Taking into consideration, all these aspects and evidence placed before this Court, the plaintiff failed to prove his absolute ownership over the suit schedule property. Accordingly, I answer issue No.1 in negative and issue No.2 in affirmative and the application filed under Order 26 Rule 9 CPC is liable to be dismissed. Consequently, the application is dismissed and I answer point No.1 in negative.
20. ISSUE No.3 AND 4: Defendants have taken up a plea in the written statement to the effect that in view of the judgment in O.S. No. 857 of 2013 the suit of the plaintiff is barred by Re-judicata. Ex.P39 is the certified copy of the judgment passed in O.S. No. 857 of 2013. It was a suit filed by the Defendant No.1 against one Sri. M.G. Manjunath in respect of the site No. 52 for permanent injunction. Whereas O.S. No.4424 of 2011 was filed by the vendor of the plaintiff 23 O.S.No. 10513 / 2015 against the Defendant No.1 and her husband for permanent injunction in respect of site No. 53. According to the Defendants in view of withdrawal of O.S. No. 4424 of 2011 suit is hit by order 2 rule 2 of CPC. It is settled principle of law that what is relevant under Section 11 of CPC is equally relevant and material under Order 2 Rule 2 CPC. The identity of the cause of action of previous suit and that of the subsequent suit to be established would attract the provision, as such the plea cannot be presumed on the basis of the some reason. In the case on hand, Defendant No.1 filed O.S. No. 857 of 2013. Whereas the vendor of the plaintiff filed O.S. No. 4424 of 2011 against the Defendant No.1 and her husband. Admittedly, the plaintiff is not a party to that suit. Essential ingredients of Section 11 and Order 2 rule 2 CPC are not attracted. It is pertinent to note that there is no similarity of cause of action in two suits. This suit is for permanent injunction and mandatory injunction. Whereas the earlier suits were filed by the Defendant No.1 and vendor of the plaintiff for permanent injunction. If plaintiff had filed earlier suit the matter would have been different. In my view, the Defendants have failed to prove that judgment of O.S. No. 857 of 2013 operates as Re-judicata. Likewise, the Defendants 24 O.S.No. 10513 / 2015 have failed to prove that present suit is hit by order 2 rule 2 CPC. Without any further discussion, I answer issues No.3 & 4 in negative.
21. ISSUE No.5: Defendants have takeup a plea in the written statement to the effect that the suit of the plaintiff is bad for mis-joinder and non-joinder of necessary parties. Except this plea, who are unnecessary parties, and who are unnecessary parties not mentioned in the written statement. In my view according to the plaintiff, Defendants have encroached the suit schedule property and the plaintiff was constrained to file this suit for permanent injunction and mandatory injunction. That being the position, the question of joining the other persons does not arise. Accordingly, I answer issue No.5 in negative.
22. ISSUE No.6: a pleas has been taken by the Defendants in the written statement to the effect that the court fees paid by the plaintiff is insufficient. In fact, this issue is not seriously pressed into service, ether before commencement of trial or during the course of trial. Plaintiff has paid court fee on the relief of permanent injunction and 25 O.S.No. 10513 / 2015 mandatory injunction. Since the Defendants failed to establish that the court fees paid by the plaintiff is insufficient. I answer issue No.6 in negative.
23. ISSUE No.7: A plea has been taken by the Defendants in the written statement to the effect that the suit is barred by limitation. How the suit is barred by limitation is not explained or stated in the written statement. As far as suit for permanent injunction is concerned, there is no limitation. As far as mandatory injunction is concerned, it is governed by residuary Article 113 of Limitation Act 1963. As per this Article plaintiff is required to file a suit for mandatory injunction within a period of 3 years from the date of completion of construction or structure. It is not known when the construction has been put up in the suit schedule property. If the averments of the plaint are taken into consideration, it discloses that the Defendants have put up foundation / structure on 15.12.2015. The suit was filed on 26.12.2015. That being the position, the suit filed is within a period of limitation. Defendants failed to prove that the suit is barred by limitation. Accordingly, I answer issue Noi.7 in negative.
26
O.S.No. 10513 / 2015
24. ISSUE No.8 & 9: The subject matter of these two issues are with regard to relief sought by the plaintiff. Firstly, the plaintiff seeks relief of permanent injunction. Secondly, the plaintiff seeks relief of mandatory injunction directing the Defendants to remove the foundation / structure put up in the entire suit schedule property. There is evidence to show that the Defendants are in possession of suit schedule property. If that being the position, the question of law, the plaintiff is not entitled for any relief as prayed. This court is not in a position to mould the relief under Order 7 Rule 7 of CPC. According to the plaintiff, putting up structure / foundation was existed as on the date of the filing of the suit. It is not a subsequent event if any subsequent event happened during the pendency of the suit, then only the court could have moulded the relief under Order 7 Rule 7 of CPC. Even as per decision referred by the learned Advocate for the Defendants, mere suit for permanent injunction is not maintainable. Hon'ble Apex court clearly held that when there is cloud with regard to title of the plaintiff, then proper remedy is to file suit for declaration and possession and other consequential reliefs. The Defendants are in possession of the 27 O.S.No. 10513 / 2015 suit schedule property. That being the position, this court cannot mould the relief under Order 7 Rule 7 of CPC. Hence, the suit is going to be dismissed. Consequently, I answer issues No. 8 & 9 in negative.
25. In the light of the above discussion, the question of allowing application filed under Order 26 Rule 9 CPC does not arise.
26. ISSUE No.10 & POINT No.2: In the result, I proceed to pass the following.
ORDER (1) Suit is dismissed.
(2) Consequently, Application filed under Order 26 Rule 9 CPC is hereby rejected.
(3) Parties are directed to bear their own cost. (Dictated to the Judgment Writer Online, corrected and then pronounced by me in open court, this the 19th DAY OF MARCH 2018) (VENKATARAMAN BHAT) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE 28 O.S.No. 10513 / 2015 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri. M.S. Ravi Kumar PW2 Smt. Shanthakumari
Documents marked on behalf of the plaintiff/s:
Ex.P1 Copy of Sale deed dated 24.09.2011
Ex.P2 Certified copy of sale deed dated 19.05.2003
Ex.P3 Certified copy of sale deed dated 02.06.2000
Ex.P4 Home Loan Agreement
Ex.P5 Statement of Account of Axis Bank
Ex.P6 Certified copy of Sale deed dated 06.02.2013
Ex.P7 Receipt dated 13.01.1999
Ex.P8 to14 Tax paid receipts
Ex.P15 Katha Certificate
Ex.P16 Copy of Uttara Patra
Ex.P17 House list issued by BBMP
Ex.P18 Certified copy of sale deed dated 24.04.2010
Ex.P19 Home loan sanction
Ex.P20 Letter dated 26.11.2015
Ex.P21 Statement of account
Ex.P22 Copy of police complaint.
Ex.P23 Encumbrance Certificate
Ex.P24 Katha Certificate
Ex.P25 Uttara Patra dated 23.06.2014
Ex.P26 House list issued by BBMP
Ex.P27 House list issued by Pattanagere Panchayat
Ex.P28to35 8 photographs
Ex.P36to38 Three compact Discs
Ex..P39 copy of judgment in O.S. No. 857 of 2013
Ex.P40 copy of decree
Ex.P41 Copy of sale deed dated 15.07.1991
Ex.P42 Copy of sale deed dated 31.12.2009
Ex.P43 Original General Power of Attorney dated
09.05.1991
Ex.P44 Affidavit dated 09.05.1991.
List of witnesses examined on behalf of the Defendant/s:
DW1 Sri. N. Vijaya Kumar
29
O.S.No. 10513 / 2015
Documents marked on behalf of the Defendant/s:
Ex.D1 Certified copy of sale deed dated
14.07.2016.
Ex.D2 General Power of Attorney
Ex.D3 Certified copy of plaint at O.S. No.4424 of
2011.
Ex.D4 Order sheet of O.S. No. 4424 of 2011.
Ex.D5 Certified copy of E.C.
Ex.D6 to 8 Three tax paid receipts
Ex.D9 Copy of application to BWSSB
Ex.D10 to 11 Copy of two Electricity Bills
Ex.D12 Certified copy of police complaint
Ex.D13 Plan of BWSSB for water connection.
Ex.D14 & 15 Two tax paid receipts
Ex.D16 Property Register.
XXXVII ADDL. CITY CIVIL JUDGE,
(CCH-38), BANGALORE.
30
O.S.No. 10513 / 2015
19.03.2018
Judgment passed and pronounced in
the open court (vide separate
judgment). The operation portion of
the order reads thus -
ORDER
(1) Suit is dismissed.
(2) Consequently, Application filed under Order 26 Rule 9 CPC is hereby rejected.
(3) Parties are directed to bear their own cost.
XXXVII ACCJ, (CCH-38) 31 O.S.No. 10513 / 2015