Bangalore District Court
Rajamahal Proudha Shale Run By vs M.Srinivas S/O. Late H.Manjappa on 4 October, 2016
THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY
Dated on this the 4th day of October 2016
-: Present :-
Smt. Hemavathi, BBM, LL.B,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT. 6022/2008
Plaintiff:-
Rajamahal Proudha Shale run by
Kunchitigara Kshemabhivrudhi
Sangha, RMV II Stage,
Nagashettyhalli, Bengaluru-94.
Represented by its
Secretary Ramaiah, 60 years,
S/o.Hanumaiah.
[By Sri.S.Channaraya Reddy,
Advocate]
/ Versus /
Defendants:-
1. M.Srinivas S/o. Late H.Manjappa,
80 years.
2. Prasad, 42 years, father's name
not known to the plaintiff, C/o.
M.Srinivas.
Defendants No.1 and 2 are
R/o.No.302, 6th Cross, Tharalabalu
Main Road, I Block, R.T.Nagar,
Bengaluru-32.
(Sri.N & H, Advocates for defendants)
: 08.09.2008
Date of Institution of the suit
Nature of suit : Suit for permanent
injunction.
Date of commencement of : 09.01.2012
evidence
Date on which the judgment : 04.10.2016
is pronounced
Years Months Days
Duration taken for disposal :
08 00 27
***
JUDGMENT
This is a suit initially filed by the plaintiff against the defendants for the relief of permanent injunction to restrain the defendants their men, or anybody claiming under them from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule properties in any manner including the trespass, dispossession, damaging the watchman shed or raising the houses thereon without adopting the due process of law and such other reliefs with costs.
2. During the pendency of the suit, the plaintiff got amended the plaint and sought for the relief of mandatory injunction to direct the 1st defendant to remove the construction and the compound raised on the suit 'C' schedule property and to restore the same to its earlier condition as it was before the construction.
3. The brief facts of the plaintiff's case is that the plaintiff - Sangha is running a school in Kannada medium as per the recognition of the education department by letter dated 5.7.1994 and earlier was also it is being run and said recognition is continued till 2007-2008 by the concerned department as per the Order No.53/2005-06 dated 12.6.2006 and the further steps have been taken to get the recognition and there were about 160 students studying, most of them belong to schedule caste and schedule tribe, poor section, lower middle class people. The said school is being run at Rajamahal Vilas, 2nd Stage, Nagathihalli Shetty, Bengaluru - 94, for the past over two decades and it has gained good reputation and it is being run in two premises which is divided by a common road of 13 ft and one portion measures North to South 78 ft East to West 80 ft and another portion measures North to South 120 ft and East to West 80 ft. Plaint A and B schedule properties are the premises where the school being run having furniture, desk, table and other facilities and the plaintiff - institution was paying rent to one A.C.Rangaswamy in respect of these two premises and the plaintiff - Sangha was given understand by A.C. Rangaswamy that he had right over the suit schedule property to give it on rent as a landlord and by ownership, on that basis, plaintiff- Sangha started running school in the plaint 'A' schedule and 'B' schedule properties, however in the later part of 2003, the plaintiff - Sangha came to know that the premises on which the school is being run forms the part of land acquired by BDA which was privately owned by one C.Kempanna and Savithramma forming part of Sy.No. 71/4 to 71/6 measuring 2 acres 34 guntas and gazette notification was published on 29.7.1982 and award has been passed as per Award dated 12.8.1981 by L.A.O., BDA, but in spite of the said acquisition proceedings, the plaintiff - school is continued to run in the suit schedule premises, till today the plaintiff is in possession of the same and the plaintiff Sangha is in actual possession of plaint 'B' schedule property which is being used as playground of the school and it invested lakhs of rupees for improvement of the school, school building and other facilities to the students. On coming to know about the acquisition proceedings by BDA, the plaintiff - Sangha approached the BDA and brought to the notice of BDA regarding the plaintiff - School running since 1970 on the schedule premises and sought for the regularization of the occupation of the said premises by the plaintiff, in spite of various correspondences between the plaintiff - School, Sangha, with the BDA, since 2004, no action has been taken and even they approached the Government, which also not responded. When such being the fact, in the month of May 2007, one Shaijohn P.D. and P.U.Pawl started coming near the school and creating trouble to the staff claiming that the part of the school in the plaint schedule are supposed to be their sites said to have been purchased from one M.Vishwanatharao during the year 2004 and though the plaintiff made clear that it is not running a school on private property and their request for regularization of the said area is pending before BDA, but they did not care for it and again on 20.5.2007, they came near the school tried to gain entry into the portion of the school with an intention to excavate the earth for laying foundation and at that time, the plaintiff filed a suit in O.S.No.3752/2005 to protect the suit schedule property and obtained temporary injunction against them which is still in force. B schedule property is being used as playground and there is a watchman shed in the portion of plaint 'B' schedule and 1st defendant has no right over the suit properties. A.C.Rangaswamy filed a suit for specific performance in respect of Sy.No. 71/4 to 71/6 against the original owner in O.S.No. 248/1982, which was dismissed and in that suit, this defendant No.1 was defendant No.39 wherein he had claimed to have purchased site in Sy.No. 71/6, but his contention came to negatived. Hence, he does not derive any title over the site which he is claiming. In spite of without any right over the plaint 'B' schedule property, the 1st defendant is making false claim over the plaint 'B' schedule property and he is not in actual possession of any land in Sy.No.71/4 to 71/6 and these plaintiff is in continuous possession of the 'B' schedule property. In spite of that, the 1st defendant started to interfere with the plaintiff's possession and defendant No.2 frequently coming near the plaint 'B' schedule property and has been threatening the school Watchman and their staff stating that suit 'B' schedule property belongs to 1st defendant and if they do not vacate, they will take forcible method to dispossess them from the 'B' schedule property and when the plaintiff lodged complaint, no action was taken and on 2.9.2008 the 2nd defendant with the followers made an attempt to trespass the suit property and when the oral complaint was made by the staff of the plaintiff - school, the police ignored it. So, the plaintiff will not be able to protect its possession. Hence, filed the suit for permanent injunction.
4. During the pendency of the suit, the plaintiff got amended the plaint by inserting para 8-A and B stating that subsequent to the suit, the 1st defendant took the law into hands and forcibly ousted the plaintiff's Watchman from the suit schedule property. During the month of August 2008 by branding as trespass with the police and lodged a false complaint, when the school authority tried to lodge a complaint to the local police and authorities, they have ignored and the 1st defendant started to claim that he purchased the 'B' schedule property about 9 years ago and Watchman had illegally trespassed into the same and when he lodged the complaint on 2.9.2008, the Watchman vacated the same realizing that suit 'B' schedule property belongs to him. Taking advantage of the inaction of local police the 1st defendant, during the pendency of the suit, raised construction on northern side with a gate towards North by taking law into their hands without disclosing the same to the Court and the alleged act of the 1st defendant is illegal and the illegal structure raised on the 'B' schedule property is to be removed. The plaintiff filed W.P.BNo.35643 and 37064/2009 against BDA seeking for consideration of plaintiff application for regularization of the suit property and in that writ petition the direction was given to BDA to consider the plaintiff's application. And thereafter the plaintiff has been making representation to consider their request by the BDA. But, BDA has sought for time to complete the same. Hence, filed the suit.
5. The defendant No.1 filed written statement denying the averments made in the plaint and contended that he is aged about 62 years, but in the cause title the plaintiff has wrongly shown as 80 years and the description of the plant A and B schedule properties is vague and the extent of these survey numbers is not mentioned, thereby the plaintiff is trying to mislead the Court and playing fraud on the Court with an intention to get the order from this Court and the plaintiff is neither the owner nor in possession of the suit property and plaintiff has no manner of right, title or interest over the suit property, this defendant is the absolute owner in physical possession of site No.7 to 9 in Sy.No.71/6 having purchased the same under registered Sale Deed dated 30.6.1999, khatha changed in his name, he has been paying tax and also betterment charge and he proposed to put up construction in the year 2001 upon the said property which was opposed by one A.C.Rangaswamy, Secretary of Vidyaranya Education Society claiming that he had an agreement with respect to the aforesaid properties and he filed a suit in O.S.No. 248/1982 against the original owner and because of that suit, he had stopped all the construction and suspended all the activities and subsequently, some of the representatives of A.C.Rangaswamy met this defendant, demanded exorbitant money saying that if he pay the money, he would not press action against him. But, when this defendant refused the same, he filed another suit in O.S.No.2690/2001 against this defendant with frivolous allegation. This defendant is a subsequent purchaser for valuable consideration without any notice of suit or any agreement with respect to the suit property and he was not a party to the said agreement of sale and the suit in O.S.No.248/1982 filed by Rangaswamy came to be dismissed against which he preferred RFA 952/1992 before the Hon'ble High Court of Karnataka which was also dismissed. Subsequently, suit in O.S.No. 2690/2001 came to be dismissed for non-prosecution. Said A.C.Ranga Swamy having failed to succeed in earlier suits, has set up the plaintiff to file his false suit. As the dispute with regard to the suit property is already decided, this suit is hit by res-judicata. There was no cause of action for the suit and the plaintiff has no manner of right, title or interest over the suit property. Hence, prayed to dismiss the same with costs.
6. The second defendant filed Memo, stating that he adopts the written statement of the 1st defendant.
7. When the plaintiff got amended the plaint, 1st defendant filed additional written statement denying the averments of the amended plaint and A.C.Rangaswamy, the Secretary of Sri Vidyaranya education Society had filed the suit in O.S.No. 248/1982 in respect of the same property and it was dismissed, being aggrieved by the said Judgment and Decree in O.S.No. 248/1982, he filed an appleal in RFA No.952/2002 before the Hon'ble High Court of Karnataka which was dismissed on 21.7.2008 and he also filed Spl. Leave Petition No.7339/2009, which was also dismissed on 9.7.2009. The averments made in the plaint 8 -B of the plaint are all false and subsequent to the order of the Spl.L. Appeal the first defendant being the absolute owner in possession of the property bearing site No.7 to 9 in Sy.No. 71/6 has sold the sites by registered Sale Deed dated 29.1.2009, 17.8.2009 under three separate sale deeds, since the date of sale deed respective purchasers have been in possession of the said properties and they have constructed houses and this defendant has not interest over the said property and plaintiff has never been in possession of the suit schedule property, hence, the question of interference does not arise and since the first defendant sold the property, the suit for bear injunction becomes infructuous. Hence, prayed to dismiss the suit with costs.
8. On the basis of the pleadings of the parties, following issues and additional issues have been framed :
ISSUES (1) Whether the plaintiff proves that they are in lawful possession of the suit schedule property ?
(2) Does the plaintiff proves the interference of the defendants ?
(3) Whether the plaintiff is entitled for permanent injunction as prayed ?
(4) What order or decree ?
Additional Issue
1) Whether the plaintiff proves that the 1st defendant put up an illegal construction in the portion of the schedule property and it is nothing but the suit property in the suit ?
2) Whether the plaintiff proves that he is entitled for mandatory injunction as prayed ?
3) What order or decree ?
9. The plaintiff examined one Ramaiah, Secretary of the plaintiff - School as P.W.1 and got marked 48 documents as per Exs.P.1 to P.48 and also examined one Rangaswamaiah the Head Master of plaintiff - School as P.W.2. The defendant No.2 personally and as a general power of attorney holder of 1st defendant examined him as D.W.1 and got marked 29 documents as Exs.D.1 to D.29.
10. Heard both sides.
11. My findings on the above issues are as follows:-
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Addl.Issue No.1 : In the negative.
Addl.Issue No.2 : In the negative.
Addl. Issue No.3 &
Issue No.4 : As per final order, for
the following:
REASONS
12. Issue No.1 and Additional Issue No.1 :-
Admittedly the suit schedule property is not belonging to the ownership of plaintiff but as per the plaint averment one A.C.Rangaswamy, had rented the suit schedule property in favour of the plaintiffs Sangha and they were paying rent to the said A.C.Rangaswamy. Accordingly the plaintiff said A.C.Rangaswamy had right of landlord and ownership over the suit property to give it on rent and said A.C.Rangaswamy filed a suit for specific performance in respect of Sy.No.71/4 to 6 against original owner in O.S.No.248/82 and it was dismissed on 25.7.2002 and thereafter said A.C.Rangaswamy preferred RSA and it was also dismissed. Ex.D.17 certified copy of the judgment and Ex.D.18 certified copy of decree in O.S.No.248/82 reveal that said A.C.Rangaswamy as a Secretary of Vidyaranya Education Society filed a suit for specific performance of agreement to sell in respect of Sy.No.71/4 to 6 of Nagashettihalli village and said suit was dismissed. Further Ex.D.19 which is the certified copy of RFA.No.954/02 reveal that he prepared the said RFA challenging the judgment and decree as per Ex.D.17 and Ex.D.18 and it was also dismissed. So it is very clear that after this judgment said A.C.Rangaswamy has no right over those suit schedule property.
13. It is the further claim of the plaintiff that in the year 2003 the plaintiff came to know that B.D.A acquired the portion of land in Sy.No. 71/4 to 6 measuring 2 acre 35 guntas and passed an award on 12.8.1981. But, the plaintiff had continued in possession of the suit schedule property in spite of acquisition proceedings and they approached the B.D.A for regularization of his occupation over those suit properties, but that has not been considered. Hence it also filed writ petition No.35643/09 and 37064/09 against B.D.A before the Hon'ble High Court of Karnataka wherein on 13.8.2010 order was passed to consider the plaintiff application for grant of the suit property and their request is still pending before B.D.A for consideration. So it is very clear that as on today suit schedule property is not granted in favour of plaintiff or their alleged occupation in the suit property has not been regularized.
14. It is the case of the plaintiff that this plaintiff has been in continuation of the suit schedule property and it is running school and said school is being run in 2 premises. It is divided by a common road of 30 feet and 1st portion measures East West 78 feet , North South 80 feet and another portion measures East West 80 feet , North South 120 feet. In the plaint schedule A is described as portion of Sy.No.71/4 to 6 , Nagashettihalli, RMV 2nd stage, now within the corporation limit consisting of constructed portion and compounded measuring 80 x 78 feet. So it can be said that according to the plaintiff it is one portion of the property where the plaintiff's school is said to be functioning. The plaint B is described as portion of immovable property forming part of form of Sy.No.71/4 to 71/6 of Nagashettihalli, RMV 2nd stage, Bangalore now within the limits of corporation. But the measurement of this property is not shown. The boundary is shown as East property of C.H.Hanumantharaya, West road, North lane and private property, South 30 feet road and schedule A property. So on going through this boundary it can be said that according to the plaintiff in between A schedule property and this B schedule property there is a 30 feet road.
15. P.W.1 in his cross examination deposed that entire area of their school is surrounded by compound on all 4 directions and there is a little open space by the side of their school and their school is surrounded by roads on front and left side and this property is taken on rent from A.C.Rangaswamy. As per the plaint averments B schedule property is being used as a play ground. So it is very clear that the area where the school building is situated is not the B schedule property. He further deposed that they have stopped rent to A.C.Rangaswamy knowing that he has no right , title and interest over that survey number. He also deposed that Ex.D.1 to 3 are relating to the school which is run by the plaintiff. He further deposed that there is a big vacant space opposite to their school which used as play ground to their children and subsequent purchaser from the defendant No.1 constructed three storage building during the pendency of the suit and there is no vacant land in front of their school at present and as on today they are not in possession of said area. He further deposed that the portion was taken by force for which they lodged complaint but no document has been produced to that effect. In the plaint in para 8 it is stated that during the pendency of the suit, defendant No.1 had taken the forcible possession of the B schedule property by forcibly ousting their watchmen. P.W.2 who is the headmaster of school and P.W.3 who is the watchmen of the said school deposed in their chief examination that in the month of August 2008 the defendant No.2 started to threaten him and their watchmen to vacate the property otherwise they will dispossess them from the suit property and again they repeated the same and forcibly thrown out the watchmen but no where stated when their watch men was thrown out from the B schedule property. P.W.3 in his cross- examination stated that there was no quarrel between the school authority and the owner of the area situated in front of the school. Therefore the contention of the plaintiff that during the pendency of the suit, the defendant No.1 dispossess the plaintiff from B Schedule property cannot be accepted.
16. Defendant No.1 in his written statement contended that when he proposed to put up construction in the year 2001 , A.C.Rangaswamy has a Secretary of Vidhyaranya Education Society filed a suit claiming that he was an agreement holder and in view of the dismissal of the suit in O.S.No.248/1982. Later he withdrawn the said suit. The defendant produced Ex.D.14 which is the certified copy of plaint in O.S.No.2690/2001 filed by A.C.Rangaswamy as a Secretary of Vidhyaranya Education society against this defendant No.1 for relief of permanent injunction to restrain the defendant from putting up any construction on the Sy.No. 71/4 to 6 of Nagashettihalli village on the ground that he purchased 2 acre 32 guntas in these survey numbers under sale agreement dated: 17.1.1981 and he was in possession of the property. The defendant without any right is making an attempt to put up the construction on the suit property. So it supports the case of the defendant that in the year 2001, he had taken up the construction and it falsifies the contention of the plaintiff that during the pendency of the suit he had taken up construction on the B schedule property.
17. In the course of cross examination, P.W.1 deposed that he do not know when the defendant No.1 put up construction over site No. 7 to 9 in Sy.No. 71/6 , A.C.Rangaswamy and his followers obstructed him and said A.C.Rangaswamy filed a suit in O.S.No.2690/2001. Though the plaintiff have stated about the suit in 284/82 filed by A.C.Rangaswamy, they have not stated about this suit in O.S.No.2690/01. This also shows that only to claim that the defendant No.1 put up construction during the pendency of the suit, they have suppressed about the suit filed by A.C.Rangaswamy to restrain the defendant No.1 from putting up construction on the suit property. P.W.2 deposed in his cross examination when the plaint B schedule property was vacant they were using it as a play ground and they have not purchased the said area and even P.W.1 deposed that B.D.A had not allotted these sites to them and they were not permitted by anybody to use the B schedule property as a play ground. So it is very clear that plaintiff was using the B schedule property as a play ground as it was vacant.
18. Further in Ex.P.1 the address of the plaintiff school is shown as Rajamahal vilas , Swimming pool extension, No.30, 9th cross, Malleshwaram-71/4, Bangalore North-3. So it is very clear that the order as per Ex.P.1 was given in favour of the plaintiff school to run the school in Sy.No. 71/4 nor 71/5 and 71/6. In the plaint schedule B property is described as portion of the property in Sy.No.71/4 to 6 but it is not specifically stated whether entire portion of B schedule situated in Sy.No. 71/4 , 71/5 ad 71/6. P.W.1 in his cross examination deposed that they have not claimed the sites No.7 to 9 in Sy.No. 71/6. Of course there is no recital in the sale deed of defendant as per Ex.D.8 to 10 that the sites were formed in Sy.No. 71/6 but it is the plaintiff who has to show that in which survey number, plaint B schedule property is situated. Admittedly in between the plaint A and B schedule property there is a 30 feet road. When such being the fact it is hard to believe that B schedule property is situated at Sy.No. 71/4 to 6. Further the plaintiff have not challenged the sale deed of defendant No.1. If the plaintiffs are in possession of the plaint B schedule property since 1970 as claimed in the plaint, they would have sought for at least declaration of title by adverse possession claiming perfection of title over the said property but though they have sought for mandatory injunction to direct the defendant to demolish the building situated on the B schedule property without any title over the property, they have not claimed relief of declaration of their title by adverse possession. Further, if the plaintiff is in possession of the 'B' schedule property, it should have given the measurement of 'B' schedule property. When the plaintiff is unable to give the measurement of 'B' schedule property itself disproves the case of plaintiff that 'B' schedule property is in possession of the plaintiff as the playground of the school as on the date of suit.
19. Of course the plaintiffs have produced Ex.P.2 grant order, Ex.P.3 temporary recognition certificate, Ex.P.4 endorsement by director, Ex.P.5 and Ex.P.6 Commissioner of public education department and pass book, Salary bill Ex.P.7, Attendance register Ex.P.8, Visitors book Ex.P.9, Ex.P.10 certificates, Ex.P.11 certified copy of order on I.A.No.1 and 2 in O.S.No.26945/10 filed by one Paul and another and Ex.P.12 certified copy of order sheet in that case. Ex.P.13 attested copy of admission register, Ex.P.14 electricity bill, Ex.P.15 Electricity supply service, Ex.P.16 endorsement, Ex.P.17 Electricity receipt, Ex.P.18 proceedings of Kunchichitigara Kshemabiruddhi Sangha, Ex.P.19 order dated: 18.1.2012 about renewal of recognition of school, Ex.P.20 letter dated: 5.1.2011, Ex.P.21 to 32 the documents relating to the proceedings and order of office of DDPI and Ex.P.33 registration certificate, Ex.P.34 to 37 copy of the requisition for renewal of recognition of the school by the plaintiff society and Ex.P.38 and 39 receipts of payment of rent, Ex.P.40 copy of the order in writ petition No.35643/09, Ex.P.41 certificate of registration, Ex.P.42 objections before B.D.A for acquisition of the land , Ex.P.43 copy of the sketch with respect to the location of the suit properties. These documents no way helped the plaintiff to prove that they are in possessions of the suit schedule property. None of the documents supports the case of the plaintiff that they are in lawful possession of the plaint 'A' and 'B' schedule properties as described in the plaint. Therefore I hold that the plaintiff has failed to prove their possession over the suit schedule property. Hence, I answer this Issue No.1 and Additional Issue No.1 in the negative.
20. Issue No.2 :- It is the case of the plaintiff that on 25.8.2008 and on 2.9.2008 second defendant along with his followers trying to trespass into the schedule property and threaten them to vacate the B schedule property stating that 1st defendant purchased the said property and if they fail to vacate he will dispossess them. P.W.2 in his cross examination deposed that he do not know on what date at what time, defendant No.2 came and gave threat to him and watchmen and P.W.3 deposed that there was no quarrel between school authority and owner of the area situated in front of school and he do not know when the 1st defendant came and gave threat to them. So it is very clear that the alleged threat of interference is a false story created by the plaintiff for the possession of this suit. Therefore I hold the plaintiff has failed to prove the alleged interference of the defendant. Hence I answer this issue in the Negative.
21. Issue No.3 and Additional Issue No.2 :-
When the plaintiff has failed to prove Issue No.1 and 2 and additional Issue No.1, the plaintiff is not entitled for relief of permanent injunction.
22. The learned Advocate for the plaintiff has relied upon the following decisions:
(1) ILR 1999 KAR 301 - Sathyam @ Ramaiah & Others vs. Karnataka Milk Federation Co-operative Ltd., wherein it is held that : Civil Procedure Code 1908 (Central Act No.V of 1908) Order XXXIX Rules 1 & 2 Specific Relief Act, 1963 (Central Act No.17 of 1963) Section 6 and 9 - Whether a person who has no title over the disputed property but who is in "Settled Possession" of the same, can maintain a suit for injunction as against a True owner ? Is he entitled to temporary injunction also in such a suit ? HELD - Relying on a decision rendered by the Supreme Court in PURAN SINGH AND OTHERS VS. STATE OF PUNJAB AIR 1975 SC 1674, HIGH Court held where a Trespasser was in settled possession, he cannot be thrown away except in due course of law because such a Trespasser is entitled to resist or defend his possession even as against the rightful owner who tries to dispossess him.
(2) ILR 1999 KAR 1451- Harinath Tilhari.J, Sathyam @ Ramaiah & Others V/s Karnataka Milk Federation Co-operative Ltd - wherein it is held that- Civil procedure code 1908 (Central Act No.5 of 1908) ORDER XXXIX Rules 1 & 2.
Whether a trespasser or a person who has no legal title but is in possession of the land is entitled to get temporary injunction? Held- Relying on Puran Singh & Others V/s State of Punjab AIR 1975 Supreme court 1674 the high Court held that where a trespasser is in settled possession of the land, is entitled to resist or defend his possession even as against the rightful owner who tries to dispossess him.
(3) ILR 2002 KAR 174 , M.P.Chinnappa, J, Sampangiramaiah vs Venkatamma, CIVIL PROCEDURE CODE, 1908 (CENTAL ACT No.V OF 8)-ORDER XXXIV RULS 1 AND 2- Brother's wife claimed to be in possession if the disputed property under oral partition since the year 1968. In 1979, father-in-law had filed a suit for permanent injunction against the present plaintiff but the suit came to be dismissed. In a subsequent suit filed by the wife, temporary injunction was granted and the same was confirmed in appeal. In revision the High Court held that even if the plaintiff were to be treated as trespasser, she can protect her right even against the true owner till she is dispossessed by due process of law.
(4) ILR 2006 KAR 1047 (Supreme Court) R.C.LAHOTI, B.N.SRIKRISHNA AND G.P.MATHUR, JJ Rame Gowda (D) by Lrs.vs M.Varadappa Naidu (D) by Lrs and Another, wherein it is held that :
Civil law : Suit for injunction restraining from interfering with peaceful possession and enjoyment ........ It is clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. ....... In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title." (5) 2004 AIR Kant.H.C.R.2297 - Rame Gowda (D) by L.Rs. Vs. M.Varadappa Naidu (D) by L.Rs and another, wherein it is held that : "......... Plaintiff in 'settled possession' - It entitles him to protect his possession - Grant of injunction proper."
22. The learned Advocate for the defendant has relied upon the following decisions:
1) AIR 1994 Supreme Court 853 -
S.P.Chengalvaraya Naidu (dead) by L.Rs Vs. Jagannath (dead) by L.Rs and others, wherein it is held that : "The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."
2) (2008) 4 Supreme Court Cases 594 -
Anathulla Sudhakar Vs. P.Buchi Reddy (dead) by LR.s and others : "..... Where the plaintiff's title is under a cloud and he does not have possession, held, the remedy is suit for declaration and possession, with or without consequential injunction ..."
3) Manu/TN/1828/2015 - S.A.1570 of 2005
- M.Ramamoorthy and Ors. Vs. R.Hirunavukkarasu - "Property -
injunction suit - Maintainability thereof
- Present appeal filed for challenging order whereby, Respondent/Plaintiff's suit seeking permanent injunction against Appellants/Defendants from interference in peaceful possession of suit property was allowed - Whether suit for bare injunction as filed was maintainable especially, when there was dispute regarding title - Held, title to suit property had been disputed in written statement - Appellants disputed that suit property was joint family property - Whether property purchased by Respondent from one person under sale deed, joint family property or separate property of one person could be decided only at time of deciding suit for declaration of title - Therefore, suit for bare injunction was not maintainable without prayer for declaration."
23. In view of the above said discussion, I answer Issue No.3 and Additional Issue No.2 in the Negative.
24. Issue No.4 and Additional Issue No.3 :-
For the reasons discussed above, I proceed to pass following order:
ORDER The suit filed by the plaintiff against the defendant is hereby dismissed.
Considering the facts and circumstances of the case, no order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer and Typist directly on computer, script corrected, signed and then pronounced by me in the open court, this the 4th day of October, 2016.) (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W. 1 : Sri. Ramaiah
P.W.2 : Sri.Rangaswamaiah
2. List of documents exhibited for plaintiffs:
Ex.P.1 : Original order abut school
Ex.P.2 : Recognition order
Ex.P.3 : Another recognition order
Ex.P.4 : Endorsement
Ex.P.5 & Ex.P.6:Two passbooks of Vijaya Bank Ex.P.7 : Salary bill Ex.P.8 : Extract of attendance register Ex.P.9 : Visitors book Ex.P.10 : 3 certificates issued in respect of teachers working school as the Best Teacher Ex.P.11 : Certified copy of order passed on I.A.No. 1 and 2 from CCH-22 Ex.P.12 : Certified copy of order passed in O.S.No.26945/10 Ex.P.13 : Attested copy of admission register extract Ex.P.14 : Electricity bill Ex.P.15 : Electricity supply service endorsement Ex.P.16 : Another Electricity bill receipt Ex.P.17 : Bill Ex.P.18 : Copy of Resolution Ex.P.19 to Ex.P.32: Memorandums Ex.P.33 : Copy of Form No.9 Ex.P.34 & 35 : 2 Representations given by Sangha dated: 14.9.2011 to DGPI, B'lore.
Ex.P.36 : Two letters to BEO
Ex.P.37 : Letter submitted to B.D.A for
allotment of land on the basis of
possession
Ex.P.38 & 39 : Two receipts about payment of rent Ex.P.40 : Copy of order passed in writ petition No.35643/09 and 37064-
65/2009 Ex.P.41 : Registration certificate of Sangha Ex.P.42 : Letter of commissioner, B.D.A, Blore from one Srinivas Ex.P.43 : Map Ex.P.44 : Complaint copy to police Ex.P.45 : Complaint to police commissioner Ex.P.46 : Certified copy of order writ petition No.46065/11 Ex.P.47 : Gazette Notification Ex.P.47(a) : The relevant portion at Serial No.267, 268 and 269 Ex.P.48 : Copy of award passed by BDA
3. List of witness examined for defendants :
D.W.1 : P.C.Rajendra Prasad.
4. List of documents exhibited for defendants:
Ex.D.1 : Photographs.
to D.6
Ex.D7 Original General Power of Attorney
executed by 1st defendant
Ex.D8 Certified copy of the Sale deed dated
30/6/1999
Ex.D9 Certified copy of the another Sale deed
dated 30/6/1999
Ex.D10 Certified copy of the Sale deed dated 30/6/1999 Ex.D11 3 Encumbrance certificate to 13 Ex.D14 Certified copy of the plaint in O.S.2690/2001 Ex.D15 Certified copy of the written statement in O.S.2690/2001 Ex.D16 Certified copy of the order sheet in O.S.2690/2001 Ex.D17 Certified copy of the judgment in O.S.248/1982 Ex.D18 Certified copy of the decree in O.S.248/1982 Ex.D19 Certified copy of the judgment in Regular First Appeal 954/2002 Ex.D20 Certified copy of the order passed by Hon'ble Suprime Court dated 9/7/2009 Ex.D21 Certified copy of the absolute sale deed dated 17/8/2009 executed by defendant No.1 Ex.D22 Certified copy of the Another sale deed dated 17/8/2009 Ex.D23 2 Encumbrance certificates & 24 Ex.D25 Certified copy of the another sale deed dated 29/1/2009 Ex.D26 Encumbrance certificate Ex.D27 Status of writ about pendency before to 29 Hon'ble High Court of Karnataka (Hemavathi) XXXIX Addl.City Civil & Sessions Judge, Bangalore City.
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