Bangalore District Court
Smt.K.S.Sathyabhama vs Sri.Revanna on 24 April, 2018
IN THE COURT OF XLIV ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-45).
DATED THIS THE 24th DAY OF APRIL 2018
PRESENT
Shri.SHIVARAMA.K, B.Com., LL.M.,
XLIV Addl.City Civil & Sessions Judge, Bengaluru.
O.S.NO.5101/2013
Plaintiffs: 1. Smt.K.S.Sathyabhama, W/o
Revanna, Aged about 54
years.
2. Sri.R.Gururaj, S/o Revanna,
Aged about 32 years.
Both are R/at No.3, Ground
Floor, 6th Cross, Azadnagar,
Chamarajpet, Bangalore - 18.
[By Sri. C.Prakash, Adv.]
-Vs-
Defendant: Sri.Revanna, S/o Boraiah and
Chennamma, Aged about 64
years, R/at Presently No.6, 5th
Main, 1st Cross, Nanjanmba
Agrahara, Chamarajpet,
2 O.S.No.5101/2013
Bangalore - 18.
(Sri.M.P.Basavaraju., Advt)
Date of Institution : 15.07.2013
Nature of the suit : For Permanent Injunction.
Date of recording
of evidence : 27.06.2014
Date of Judgment : 24.04.2018
Total Duration : Day/s Month/s Year/s
09 08 04
JUDGMENT
Plaintiffs have filed this suit for the relief of permanent injunction to restrain the defendant or any persons claiming under him from alienating or creating any 3rd party interest in respect of suit property.
2. Suit property is an immovable property bearing No.3, 6th Cross, Azad Nagar, Chamarajpet, measuring 20' x 60' consisting of ground and 1st floor with two portions each within the boundaries stated in 3 O.S.No.5101/2013 the plaint.
3. It is not in dispute that 1st plaintiff is the wife and 2nd plaintiff is the son of defendant. Further, it is not in dispute that the mother of defendant by name Channamma acquired the suit property under registered sale deed on 20.5.1998. Further, the mother of the defendant had executed a registered gift deed in respect of suit property on 3.9.2004 in favour of defendant and khatha stands in the name of defendant. It is also not in dispute that there are two portions each in ground floor and first floor. Further, it is not in dispute that one portion in ground floor is occupied by tenant by name Maheswari and the lease amount of Rs.1,75,000/- collected by the defendant. The two portions of the 1st floor is in occupation of Sri.Baladandapani and Smt.Sudha from whom the defendant has collected a sum of Rs.1,40,000/- each said to be lease amount. Further, it is not in dispute that the suit property is the self 4 O.S.No.5101/2013 acquired property of the mother of the defendant. Further, it is not in dispute that 1st plaintiff had filed a petition in criminal miscellaneous No.104/2015 for maintenance and for separate residence under Domestic Violence Act. Further, it is not in dispute that plaintiffs are in possession over the suit property since it is suggested to P.W.1 in the cross-examination that by causing inconvenience and trouble the plaintiffs had thrown out the defendant from the suit schedule property.
4. It is the further case of the plaintiffs that one portion of ground floor is personally occupied by the plaintiffs. Further, the defendant owns an autorickshaw bearing registration No.KA.02D-1443 and he gets substantial income from hiring the same. Further, the defendant without there being any legal necessity had raised loan from Bangalore Souharda Central Co- operative Bank and since, the defendant was not able to 5 O.S.No.5101/2013 repay the loan, he had sought the help of the daughter of 1st plaintiff viz., Seetal R Verma who had married and requested for arrangement of money for discharge of loan and she, to uphold dignity of the family arranged Rs.3,00,000/- and had paid Rs.1,00,000/- directly to the above Bank through cheque bearing No.028896 drawn on M/S ICICI Bank. Further, in pursuance of the said payment, the defendant executed a registered mortgage deed in favour of his daughter on 15.7.2005 in respect of rear portion in the ground floor of the suit property measuring 20' x25' in which portion the plaintiffs are residing. Further, the defendant has also executed an unregistered loan document in favour of Seetal R Verma evidencing the payment of Rs.2,00,000/-.
5. It is further contended that even though, the defendant was having happy marital life with 1st plaintiff during early years of marriage had developed illegal intimacy with the lady by name Sannamma @ Shashikala 6 O.S.No.5101/2013 who came in search of job and worked as a maid servant in the house of the defendant. Further, as the situation went out of control, the defendant abandoned the plaintiffs during March 2005 itself and presently living in the house with Sannamma at Chamarajpet. Further, defendant has ignored and neglected to take care of his wife and children.
6. It is further contended that taking undue advantage of the khatha stands in his name, defendant has been negotiating with the prospective purchasers for the sale of suit property at a fancy price which was strongly objected by the plaintiffs. Hence, the plaintiffs had filed the present suit.
7. It is the further case of the defendant that the plaintiff No.1 being the wife, plaintiff No.2 being the son of defendant are not entitled for the relief of permanent injunction sought. Further, the defendant had denied the other averments of the plaint except the admissions 7 O.S.No.5101/2013 made as stated above.
8. On the basis of the material proposition of fact and law affirmed by the plaintiffs and denied by the defendant, this Court has framed the issues as under:
1. Whether the plaintiffs prove their possession over the suit property on the date of suit?
2. Whether the plaintiffs prove that the 1st defendant has illegal connection with another woman by name Sannamma and neglected the plaintiffs and making attempts to alienate the suit schedule property to cause prejudicial to the right and interest of the plaintiffs over the suit property?
3. Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for?
4. What order or decree?
9. To prove the case, 1st plaintiff is examined 8 O.S.No.5101/2013 as PW.1 and got marked Ex.P1 to P7 documents. The defendant is examined as DW.1 and not marked any documents.
10. Heard the arguments.
11. My findings on the above issues are:
Issue No.1 : Partly in affirmative
Issue No.2 : Partly in affirmative
Issue No.3 : In affirmative
Issue No.4 : As per final order,
for the following:
REASONS
12. Issue NO.1 & 2: In order to avoid the
repetition of facts and as these issues are inter-
connected, those are taken together for discussion. 1st
plaintiff (P.W.1) and defendant (DW.1) have filed
affidavits in the form of their evidence in chief. They
have reiterated the fact stated in their respective
pleadings in the affidavit filed. It is not in dispute that
9 O.S.No.5101/2013
the suit property was purchased in the name of mother of defendant. To corroborate the same, P.W.1 has produced Ex.4 certified copy of the sale deed dated:2.5.1956. Further, it is not in dispute that 1st plaintiff is the wife of defendant. To substantiate the same, apart from the oral evidence P.W.1 has produced Ex.P3 electoral card in which it is mentioned that the 1st plaintiff is the wife of defendant. To substantiate that, the khatha of the suit property stands in the name of defendant, P.W.1 has produced Ex.P5 khatha extract dated: 2.5.2015. To substantiate that mother of defendant had gifted the suit property in favour of the defendant, P.W.1 has produced Ex.P6 certified copy of gift deed dated: 3.9.2004. Further, to substantiate that defendant has mortgaged the suit property in favour of Shamrao Co-operative Bank Limited P.W.1 has produced Ex.P1 mortgage deed dated:15.7.2005 and Ex.P7 certified copy of encumbrance certificate.
10 O.S.No.5101/2013
13. To prove the possession of plaintiffs over the suit property counsel for plaintiff has brought my notice to the admission made by DW.1 in the cross-examination in page No.6. It is deposed by DW.1 in the cross- examination that since from the year 1998 plaintiffs have been residing in a portion of the suit property in ground floor and defendant was residing at Chamarajpet in Bangalore on the date of his evidence before the Court on 29.7.2017. According to DW.1 as admitted in page No.6 of the cross-examination since 2005 he has been residing in the suit property and since plaintiffs used to scold and assault him he came out of suit property. The above said evidence is sufficient to hold that plaintiffs are in possession over part of the suit property on the date of suit ie., a portion in the ground floor.
14. According to P.W.1, the defendant had developed an illegal intimacy with the lady by name Sannamma @ Sheshikala and the situation went out of 11 O.S.No.5101/2013 control and the defendant abandoned the plaintiff during March 2005 and thereafter has been residing in the house with Sannamma at Chamarajpet. It is only cross- examined P.W.1 that she had made false allegation against the defendant. Other than that, nothing is suggested with regard to the specific allegation made by P.W.1 against defendant with regard to illegal intimacy. More over, it is admitted by DW.1 in the cross- examination that since 2008 he has been residing in Chamarajpet. Nothing is elicited in the cross-examination of DW.1 that he had developed an illegal intimacy and has been residing along with Sannamma @ Sheshikala. To corroborate the evidence of P.W.1 with regard to the said allegation, plaintiff has not produced any circumstantial documents and not examined any independent witnesses. Hence, plaintiff has failed to prove the allegation that defendant had an illegal intimacy with another women.
12 O.S.No.5101/2013
15. According to P.W.1, defendant had neglected her and making attempts to alienate the suit property to cause prejudicial to her right and interest over the suit property. It is not in dispute that plaintiff had filed a criminal miscellaneous No.104/2015 for maintenance and for separate residence under D.V.Act. Admittedly, defendant has been residing separately from the plaintiffs. Further, the defendant has not been paying anything towards the maintenance of plaintiff No.1. Ex.P1 mortgage deed indicates that defendant had mortgaged the suit property in favour of the 3rd party. Ex.P7 encumbrance certificate indicate that defendant had borrowed loan from Shamrao Vittal Co-operative Bank Limited by mortgaging the suit property. Since, defendant has been residing separately and not paying any amount for the maintenance of plaintiff No.1 it could be safely held that defendant had neglected the plaintiff No.1. No doubt, DW.1 in the cross-examination, in page 13 O.S.No.5101/2013 No.9 has deposed that he never thought off to sell the suit property. According to P.W.1, defendant had raised huge loan. DW.1 had deposed in the cross-examination, that he has not borrowed any kind of loan by mortgaging the suit property. Ex.P7 encumbrance certificate indicates that defendant had borrowed a sum of Rs.2,25,000/- from Shamrao Vittal Co-operative Bank by mortgaging property. Therefore, it appears that defendant had lied before this Court that he has not borrowed any loan by mortgaging the property. Even though DW.1 has deposed that he never thought to alienate the property, the conduct of DW.1 and the other circumstances stated above makes me that the defendant attempted to alienate the suit property. Hence, I answer issue No. 1 and 2 partly in affirmative.
16. Issue No.3: Plaintiffs seek the relief of permanent injunction to restrain the defendant from 14 O.S.No.5101/2013 alienating or creating any 3rd party interest in the suit property. Counsel for defendant contends that since, the suit property is the self acquired property of the defendant, the plaintiffs have no right to prevent the defendant from alienating the suit property. Admittedly, defendant had acquired right over the suit property through the gift deed vide Ex.P6. There is no dispute with regard to the same. Counsel further contends that when equally efficacious relief can certainly be obtained by any other usual mode of proceeding, the plaintiff is not entitled for injunction as contemplated U/S 41(h) of Specific Relief Act. It is not pointed out as to what are the equal and efficacious relief available to the plaintiffs. It is further contended that unless a relief of declaration is sought the suit for relief of perpetual prohibitory injunction is not maintainable. Contrary to that, it is contended by the learned counsel for the plaintiffs that since plaintiff No.1 being the wife she has right of 15 O.S.No.5101/2013 maintenance and right of dwelling. Therefore, the defendant has no right to evict the plaintiff No.1 from the suit property. Further, in the event, defendant is allowed to alienate the suit property it will result in dispossessing the plaintiff No.1 from the suit property without paying the maintenance. Admittedly, a petition for maintenance and for separate residence under D.V.Act is pending. Section 17 of the Protection of Women from Domestic Violence Act, 2005 reads as under:
Right to reside in a shared household. - (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. (2) The aggrieved person shall not be evicted or excluded from the shared 16 O.S.No.5101/2013 household or any part of it by the respondent save in accordance with the procedure established by law.
17. Admittedly, plaintiff No.1 has been residing in the house belongs to her husband and she has right of residence as contemplated U/s 17 of the Act. Further, it is not in dispute that initially 1st plaintiff and the defendant lived together in the suit house for a long time. Hence, I feel plaintiff No.1 had shared the household. Therefore, she is entitled for protection U/S19 of the Act. Hence, in the event the defendant is allowed to alienate the property without complying Section 17 of the Act, the plaintiff No.1 would be put to irreparable injury and she would loose her right of residence. Further, Section 26 of the Protection of Women from Domestic Violence Act, 2005, contemplates that any relief available U/S 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before the Civil Court. Section 19 of the Act 17 O.S.No.5101/2013 provides to restrain the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared house hold, whether or not the respondent has a legal or equitable interest in the shared house hold. Further, alienation of the property results in dispossessing the occupant. Therefore, I feel plaintiff No.1 is entitled for injunction sought. Hence, I answer issue No.3 in affirmative.
18 Issue No.4 In the peculiar circumstances of the case, parties to bear their own cost. In view of the discussion made above, I proceed to pass the following:
ORDER Suit is decreed.
Defendant is restrained by an order of permanent injunction from alienating or creating any 3rd party interest in respect of the suit schedule property without due process of law.
No order as to cost.18 O.S.No.5101/2013
Draw decree accordingly.
(Dictated to the Judgment Writer, computerized by her, corrected, signed and then pronounced by me in the open Court on this the 24th day of April, 2018).
(SHIVARAMA.K) XLIV ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 : K.S.Sathyabhama
2. LIST OF WITNESSES EXAMINED FOR DEFENDANT:
DW.1 Revanna
3. LIST OF DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P1 : Registered mortgage deed
Ex.P2 : Encumbrance certificate
Ex.P3 : Electoral card
Ex.P4 : Certified copy of sale deed
Ex.P5 & 6 : Certified copies of gift deed
19 O.S.No.5101/2013
Ex.P7 : Certified copy of encumbrance
certificate
4. LIST OF DOCUMENTS MARKED FOR
DEFENDANT:
Nil
XLIV ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU.
20 O.S.No.5101/2013
JUDGMENT PRONOUNCED IN OPEN
COURT (VIDE SEPARATE JUDGMENT)
Suit is decreed.
Defendant is restrained by an order of permanent injunction from alienating or creating any 3rd party interest in respect of the suit schedule property without due process of law.
No order as to cost.
Draw decree accordingly.
(SHIVARAMA.K) XLIV ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU.
21 O.S.No.5101/201322 O.S.No.5101/2013