Bangalore District Court
Sri.M.Jayaram vs The Commissioner on 8 June, 2018
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY (C.C.H.No.8)
Dated this the 8th day of June 2018
PRESENT: Sri.K.B.PATIL, B.Com.,LL.B.,(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.1443 of 1996
Plaintiff/s: 1. Sri.M.Jayaram,
dead by his LRs
1(a) Smt. Lakshmidevamma
W/O Late M.Jayaram, Major
2. Sri. S.M.Venkata;athy
S/O Late A.Muniswamappa,
aged about 40 years,
Both are residing at:
Subbayyanapalya Extension,
M.S.Nagar Post,
Bengaluru.
Since dead by his LRs
2(a) Smt.B.L.Ramadevi
W/O Late S.M.Venkatpathi,
aged about 54 years,
2(b) Sri. Pramod Gowda.S.V
S/O Late S.M. Venkatpathi,
aged about 35 years,
2(c) Sri. Rajiv Venkatapathi Gowda
S/O Late S.M. Venkatpathi,
aged about 33 years,
All are residing at No.9, 80 feet Road,
2 OS.No.1443 of 1996
HRBR Layout, Kalyan Nagar,
Bengaluru -43
(Plaintiff No.1- Dead
P.1(a)- Sri.A.C.D, advocate
Plaintiff No.2- Dead
P.2(a) to (c)- Sri. N.T.G.Advocate)
Vs.
Defendant/s: 1. The Commissioner,
Bengaluru Development Authority
Kumara Park West,
Bengaluru -20 ( Deleted)
2. Sri. V.Darairaju
S/O Late Venkatarama Naidu,
aged about 45 years.
3. Sri. V.Haridas
S/O Late Venkatarama Naidu,
aged about 42 years.
4. Sri. V.Nagaraju
S/O Late Venkatarama Naidu,
aged about 36 years.
D.2 to D.4 are R/at
Subbafrayanapalya Extension,
M.S.Nagar Post, Bengaluru/
5. Sri. Gurumurthy Reddy
Father's name not known to the
plaintiffs,
aged about 55 years,
Ramgopal Layout,
Subbayannapalya,
Banaswadi Road,
Bengaluru -33
( D.1- Deleted
3 OS.No.1443 of 1996
D.2- Sri. Y.N.S.R advocate
D.3- Dismissed
D.4- Sri.R.J
D.5- Sri. D.W, advocate)
Date of the institution of suit: 27.2.1996
Nature of the suit: Permanent Injunction
and Mandatory
injunction.
Date of the commencement of 18.7.2012
recording of evidence:
Date on which the judgment was 8.6.2018
pronounced:
Total duration Year/s Month/s Day/s
22 03 11
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
The present suit is filed by the plaintiffs against the defendants for the relief of permanent injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the suit schedule property and from defendants 2 to 5 to put up any construction either in permanent nature or temporary nature, compound and sheds in the suit schedule property either by themselves, their agents or anybody working 4 OS.No.1443 of 1996 under their direction and for mandatory injunction and declare that the plaintiff is the absolute owner of "B" schedule property and direct the 2nd defendant quit and vacate the schedule premises, which is in his occupation by demolishing the construction made therein and deliver possession to the plaintiffs failure to do so the 2nd plaintiff is at liberty to demolish and take possession of the property and other reliefs.
2. Initially the present suit is filed by the plaintiffs against the defendant No.1 to 5. Defendant No.1 is the Commissioner of B.D.A, Bengaluru and subsequently defendant No.1 was deleted and the pleadings made against the defendant No.1 in para No.4 and 5 of the original plaint were deleted. Initially the present suit is filed only for the relief of permanent injunction. Subsequently the sit was converted into declaration, possession and Mandatory injunction with respect to "B" schedule property , which is part of "A" schedule property. Defendant No.2 to 5 appeared through counsel in the present suit. Defendant No.2 filed his written statement and contesting the matter. Suit against defendant No.3 is dismissed on 1.1.2000. Defendant No.4 though appeared through counsel filed written statement, but not contesting the matter. Defendant No.5 though appeared through counsel, he has not filed any written statement and not contesting the matter.
5 OS.No.1443 of 19963. The case of the plaintiffs that the plaintiffs father late M.Muniswamappa was the owner of the land bearing Survey No.286/2, Old No.263/1 situated at Subbayyanapalya, K.R.Puram Hobli, Bengaluru South Taluk, Bengaluru to the extent of 2 acres. The plaintiffs' father acquired the said property by virtue of registered sale deed in the year 1955. The said property was converted into sites. There are about 12 houses and 3 shops had come into existence about 10 years back. The plaintiffs have leased the shops to different tenants and kept the remaining land vacant. After the death of the plaintiffs father A.Muniswamappa, the plaintiffs have been succeeded to the property along with the other members of the family. There is no inter-se dispute between the plaintiffs and other members of the family and the schedule property is a joint Hindu undivided family. The RTC extract still stands in the name of Late A.Muniswamappa. The plaintiffs are in lawful possession and enjoyment of the suit schedule property by constructing a house there and residing there. Some of the houses have been leased it to the tenants. No vacant strip has been leased to any persons, but only some of the structures have been leased to the tenants. The tenants have no right over the vacant land since the same is not subject matter of lease. There is no written lease deed between the plaintiffs and the tenants. The demand register extracts standing in the name of the plaintiffs and 6 OS.No.1443 of 1996 other family members are produced along with the plaint. The schedule property is in the jurisdiction of Bengaluru Mahanagara Palike and the Bengaluru Mahanagara Palike is the competent authority to collect taxes, betterment charges and issued a khata in favour of the plaintiffs. The said property is not in agricultural character and same has been built up by construction of building and portion of property is vacant. The property bearing New Municipal No.10 formed in Survey No.286/2, Old No.263/1, Bengaluru Mahanagara Palike ward No.88 situated at 80 feet road, PSN Layout, Banaswadi, Bengaluru measuring 100X135 feet consisting of ground, first, second and third floor running a school and college in the name of East Point college and consists of two residential buildings. The Bengaluru Mahanagara Palike has collected betterment charges for a sum of Rs.3,78,000/- to the aforesaid property and transferred khata in the name of 2nd plaintiff after collecting taxes and other charges. The plaintiffs have paid a sum of Rs.2,04,415/- taxes for the year 1995 to 2005 to the Bengaluru Mahanagara Palike for the for 21780 square feet. The Bengaluru Mahanagara Palike has made khata in the name of 2nd plaintiff, after collecting taxes and betterment charges in respect of the property bearing New Municipal No.7 formed in Survey No.286/2, old No.263/1, Bengaluru Mahanagara Palike ward No.88, situated at 80 feet road, Banaswadi, Bengaluru. The plaintiffs have paid a sum of Rs.81,405/-
7 OS.No.1443 of 1996towards taxes for the year 1995-2005 to the Bengaluru Mahanagara Palike. The Bengaluru Mahanagara Palike has made khata in the 2nd plaintiff after collecting taxes and betterment charges in respect of property bearing New Municipal No.9, formed in Survey No.286/2, old No.263/1, Bengaluru Mahanagara Palike Ward No.88 situated at 80 feet road, Banaswadi, Bengaluru measuring 55'X66' consisting of 50 squares building. Father of the 2nd plaintiff purchased the land bearing old Survey No.263/1, New No.286/2 situated at Subbayanapalya, K.R.Puram Hobli, Bengaluru South Taluk measuring 2 acres, out of which, after the formation of the wide road remains there bits of land measuring 100X135 square feet, 21,780 square feet and 55'X66' square feet and major portion of the said land has been completely built up and the plaintiffs have succeeded after the death of their father. The 2nd plaintiff allotted the aforesaid property under the partition and he is in exclusive possession and enjoyment of the above property. The above property mentioned as "A" schedule property. The 2nd defendant by over night has put up unauthorized shed in the said site and started living in the said property, when the plaintiffs question the same, he requested the plaintiffs to vacate the shed, since the 2nd defendant is meson having took construction work near the schedule property, the 2nd defendant assure that as soon as complete the construction work immediately vacate and handover the said premises. Thereafter, the plaintiffs 8 OS.No.1443 of 1996 demanded on several occasions to vacate the said premises and finally went to the legal battle up to the station level and one or the other he has protected his possession without having valid right over the same. The 2nd defendant has put up construction unauthorized and without there being any valid sanction plan and without having any valid right, title over the said property by violating the injunction order granted by this Court measuring east to west on northern side 42 feet and on southern side 40 feet and north to south 22 feet, totally measuring 902 square feet, consisting of ground and first floor. The 2nd defendant has created GPA and agreement of sale in respect of aforesaid property, pursuant to the aforesaid fraudulent documents have created the other documents in order to grab the said property taking advantage of plaintiffs goodness and they are busy and engaging always their business concern. The unauthorized construction made in the said land is illegal without there being any valid, right over the property, that there is no existence as such site bearing No.28 and 29 in Survey No.286/2 situated at Subbayanapalya, K.R.Puram Hobli, Bengaluru South Taluk. The possession of the 2nd defendant is illegal and unlawful, the construction made by the 2nd defendant is to be demolished and deliver possession over the same in favour of the plaintiffs, since the 2nd defendant does not acquire any right, over the said property and the property, which is in the occupation of 9 OS.No.1443 of 1996 the 2nd defendant is mentioned as "B" schedule property and same is part and parcel of "A" schedule property. Defendant No.2 to 5 have no right, title and interest over the schedule property. The defendant No.2 to 5 are trying to interfere with the plaintiffs possession and enjoyment of the suit schedule property. The defendant No.2 to 5 are trying to obstruct the constructional work in the suit schedule property without any right, title and interest over the same. The act of the defendant No.2 to 5 in whose favour some sheds are leased are trying to claim whole vacant land as their property and trying to put up some construction over the same. They have no right to put up any construction in the suit schedule property. The act of the defendant No.2 to 5 are hind handed and illegal. If the defendants 2 to 5 are allowed to put up construction in the vacant land, the plaintiffs will be put to irreparable loss and substantial injury, which cannot be compensated in terms of money. Hence, the plaintiffs have given complaint to the police and police have not entertain the complaint on the ground that the dispute is of civil in nature and unless and until the plaintiffs obtain an order of injunction, they cannot given any assistance to the plaintiffs. Hence, the present suit. Plaintiffs have got prima facie case and the balance of convenience lies in their favour. If an order of injunction is not granted, the plaintiffs will be put to irreparable loss and injury, which cannot be compensated in terms of money. On the other 10 OS.No.1443 of 1996 hand, if an of injunction is granted against the defendants, they will not put to any hardship and inconvenience since they have no right, title and interest over the suit schedule property. The cause of action for the suit arose on the date of the notice and against defendant No2. to 5 on 21.2.1996, when they tried to put up illegal construction in the suit schedule property. The property is situated within the jurisdiction of this Court. Hence, prayed for decree the suit.
4. Defendant No.4 filed his written statement contending that the suit of the plaintiffs is not maintainable either in law or on facts. The plaintiffs have perpetuated a huge fraud on the defendant No.2 to 5 and are further perpetuating a fraud upon the Court, by coming forward with the false suit. He admits that Late A.Muniswamappa was the original owner of the land bearing Sy.No.286/2, old Survey No.263/1 situated at Subbayanapalya, K.R.Puram Hobli, Bengaluru South Taluk, Bengaluru This defendant and defendant No.2 and 3 are brothers. This defendant on 26.2.1983 agreed to purchase the sites from the father of the plaintiffs herein. Three sites bearing No.37, 38 and 39 in all measuring 3240 square feet lying in Survey No.286/2, Subbayanapalya, K.R.Puram Hobli, Bengaluru South Taluk. Late A.Muniswamappa, the father of the plaintiffs had agreed to sell the said sites vide an agreement of sale dated 26.2.1983. The sale 11 OS.No.1443 of 1996 consideration fixed at Rs.17,550/-. One of the sons of late A.Muniswamappa, Sri. A.M.Appajappa, who is the brother of the plaintiffs has jointed late Sri.Muniswamappa in executing this agreement of sale. He along with his brothers had paid the entire agreed sale consideration to the late A.Muniswamappa and pursuant thereto were put in possession of the sites. Pursuant to being put in possession, he along with defendants No.2 and 3 constructed one small dwelling unit with A.C sheet roof measuring 250 square feet in the said sites. Some time in early 1984, the 1st defendant was in the process of forming a residential layout in the vicinity known as HRBR layout and in this process was also forming roads and the 1st defendant found that the house built by this defendant and his brothers happened to be in the middle of the road. Thus the 1st defendant threatened this defendant and defendant No.2 and 3 with demolition of the house. In the meanwhile, Sri. A.Muniswamappa had expired. Therefore, faced with the threat of demolition, this defendant and defendant No.2 and 3 approached Sri. A.M.Appaji, the 2nd son of late Sri.A.Muniswamappa, who had joined his late father in executing the agreement of sale dated 26.2.1993 in favour of this defendant and defendant No.2 and 3. During this period, the plaintiffs were no were in the picture. The defendant believed that the property agreed to be sold to him and defendant No.2 and 3 by Sri.A.Muniswamappa, was the self acquired property of Sri.A.Muniswamappa and 12 OS.No.1443 of 1996 Sri.A.M.Appaji was the only son of Sri.A.Muniswamappa . As said earlier faced with the threat of demolistion, when this defendant and defendant No.2 and 3 approached Sri.A.M.Appaji and narrated their plight to him, the said A.M.Appaji offered two other alternative sites in lieu of the earlier sites. The sites which were offered were in the same survey number and the site numbers were 28 and 29 measuring in all 2360 sq.feet. The said A.M.Appaji pursuant to this offer, this defendant and his brothers in possession of site No. 28 and 29 and had executed an affidavit dated 1.7.185 and Power of Attorney dated 16.5.1985 in favour of this defendant and defendant No.2 and 3. This power of attorney and the affidavit were resorted to since the said sites were agricultural lands and fragmentation and registration of these properties had then been banned by the Government. In the meanwhile the 1st defendant had taken possession of the earlier sites, demolished the house therein and formed the roads. This defendant and his brothers had salvaged whatever material they could from the earlier structure and rebuilt three independent dwelling units as early as in the year 1985, upon sites No.28 and 29. The house constructed by this defendant has been numbered and assessed for taxes by the Village Panchyath and the house has been numbered as House List NO.286/2. Even during this point of time, the plaintiffs made no obstruction nor protest and their very existence was not known to this defendant. This defendant has obtained electricity 13 OS.No.1443 of 1996 connection for dwelling units, which owns and possesses. The house which he has built has been assessed for taxes. This defendant begs to produce a demand note for tax and the tax paid receipt. The defendant produced a copy of record of rights, bill for electricity charges and the electoral card evidencing this defendant's residence is produced. Pursuant to the proposal of the Government to regularize unauthorized construction, he had made appropriate application for regularization of his dwelling unit. The copy of application is produced. The photograph showing the dwelling unit of this defendant is produced. In January 1996, he had built two small shops in his site next to his dwelling unit. The shops are nearly completed, but not yet occupied. It is true that there are about 12 houses and around 5 shops in the said survey number. However, none of these shops nor houses belonged to the plaintiffs. The houses and the shops have been built by the purchasers of sites from the father of the plaintiffs and have come been existence since 1985 and this defendant denies as false the averment that the plaintiffs own these shops and leased threes shops to various tenants. It may be possible that the plaintiffs after their fathers death have succeeded to some properties. The defendants vehemently denies that the plaintiffs have succeeded to the properties bearing site No.s 28 and 29 in New Survey No.286/2, since this defendant had been put in possession this property by the plaintiffs father and their brother Sri. A.M.Appaji after both 14 OS.No.1443 of 1996 of them had received the entire sale consideration and pursuant thereto this defendant as early as 1985 had built a dwelling unit therein, the dwelling unit bears house list NO.286/2 and this defendant had been in exclusive possession and occupation of the house and land since 1985. RTC extracts produced by the plaintiffs only reflect the remaining holding of their late father. The defendant denies as false the averments that the plaintiffs have built all the structures in Survey No.286/2 and have leased out them to various tenants. This is false and concocted story to mislead the Court. The plaintiffs have built some dwelling units and let out the same to tenants, however, this defendant is not a tenant of the plaintiffs but he is the true and lawful owner of the property in his possession, since 1985. This defendant is not aware if there is any acquisition proceedings regarding the property, this defendant is also not aware if the 1st defendant attempted to interfere with the property. This defendant is not aware as to whether the plaintiffs have made any application for requisition. However, this defendant has made an application as stated earlier, to the Government for regularization of the dwelling unit in which he is in possession and occupation. The 1st defendant has not threatened him with any demolition and this threat of demolition is concocted by the plaintiffs to mislead and attract the sympathy of this Court. This defendant has every right over the dwelling unit and land in his possession 15 OS.No.1443 of 1996 and occupation. The plaintiffs have no manner of right over the property under his occupation. This defendant was in the process of construction and completion of completing two shops in his property. This defendant is not a lessee of the plaintiffs, but is in lawful possession and occupation of the dwelling unit under his possession and he has never laid any claims to any vacant land of the plaintiffs. He was lawfully putting up two shops, adjacent to his house in the property belonging to him. The plaintiffs in an attempt to unlawfully preempt this defendant from building the shops have come up with this palpably false suit, claiming that this defendant is putting up construction in the property belonging to them. There is not an iota of truth in the plaint averments and the plaint pleadings are a bundle of concoctations to defeat the legitimate rights of this defendant and others and hence prayed for dismiss the suit.
5. 2nd defendant filed his written statement, which is similar to that of the written statement of defendant No.4 and apart from this that he is contended that after receipt of entire sale consideration amount of Rs.18,000/-, executed an affidavit and a GPA in favour of these defendant No.2 to 4 jointly. He also handed over the title documents with respect to the said survey number. He has also produced copy of plan o layout, affidavit and GPA. 2nd defendant contended that he is a mason by profession and he lives by the said profession. As a professional, as he is in need of 16 OS.No.1443 of 1996 dwelling house constructed the existing house and shop premises and room on the first floor of the house as described in the schedule. This property has been numbered and assessed for taxes by the Village Panchayat as House List No.286/2. Further he has contended that he has constructed two shops and both his shops were let out to the tenants and two agreements were executed in favour of this defendants have been produced to the court along with affidavit by tenants. Thereafter, one of the tenants vacated and handed over the vacant premises to this defendant No.2, he himself has started a business. 2nd defendant had constructed the existing schedule building in 1985 and he has not left out any vacant strip of land or space or sheds for any further extension of the building over the ground floor i.e., the entire ground floor of his schedule site has been utilized for the construction of his residential and non-residential premises and in this context, defendant No.2 denies the averment of the plaintiffs in para No.3 of the plaint that no vacant strip of land has been leased to any persons, but only structures have been leased to the tenants does not reflect his existing schedule property and he also denies the averments made in the plaint that these defendants in whose favour some shall sheds are leased are trying to claim whole vacant land as their property and trying to put up some constructed over the same and they have no right to put up any construction in the suit property as they are irrelevant and absorb as 17 OS.No.1443 of 1996 defendant No2. is neither a tenant under the plaintiffs nor the plaintiffs are the owners of the schedule property and also no vacant strip of land is existing on the ground floor of defendant No.2's schedule property for further extension or construction on the ground floor of his property, the question of right or no right over the non existing vacant land does not arises in defendant No.2's schedule property. A sketch showing the ground floor of his schedule property and also 4 photos to show his existing building and the existing room measuring 11'X7' and 7 feet height wall constructed on the first floor with 12 pillars. He had erected 12 pillars in 1985 for future extension of his first floor building and these plaintiffs at this point of time also never objected or interfered to the said constructed and now when this defendant No.2 have started his construction to complete his unfinished first floor building, these plaintiffs have come before this Court with unclean hands. He has made an application to the Government for the registration of his construction of his schedule property, which is in his possession, occupation and enjoyment. Defendant No.2 is not aware as to whether these plaintiffs have made any application for regularization of their unauthorized construction. It is true that there are about 12 houses and 5 shops in the said survey number. It is not true that all these houses and shops belongs to these plaintiffs. These houses and shops were constructed by the purchasers of the vacant sites from their father. These plaintiffs might have 18 OS.No.1443 of 1996 succeeded to some of the properties of their father after his demise. These plaintiffs have no right over the schedule property of defendant No.2 and the construction over the schedule property as their father and brother A.M.Appaji have sold on 26.2.1983, three vacant sites bearing Nos. 37,28 and 39 to the defendants No.2, 3 and 4 jointly and subsequently two vacant sites bearing Nos. 28 and 29 by Sri.Appaji and executed an agreement of sale, an affidavit and a GPA and received the entire sale consideration amount of Rs.18,000/- and put them in possession of both the sites. After taking possession of the said two vacant sites, each of them i.e., defendant No.2, 3 and defendant No.4 constructed their buildings over their respective portions of the sites and since 1985, defendant No.2 is in the possession and occupation and enjoyment of the said schedule property and further denied all other plaint allegations and the contentions taken by this defendant are similar to that of defendant No.4.
7. After plaintiffs deleting defendant No.1 and the allegations against defendant No.4 and 5 in para No.4 and 5 of the plaint were deleted, the 2nd defendant has filed additional written statement contending that it is clear the plaintiff is taking different stands at different points of time to suit his convenience. The present suit is not maintainable either under law or on facts and the same is liable to be dismissed. Whether a particular fact is 19 OS.No.1443 of 1996 necessary or not has to be decided by the Court at appropriate time and it is not open for the party to plead certain facts and then seek for the deletion of the same to suit his convenience. This clearly establishes the fact that the plaintiff is suppressing the truth and suggesting the falsehood with an intention to mislead the Court.
8. Subsequently, again when the plaintiffs what amended the plaint and got impleaded para No.3 (a) to (d) , the 2nd has filed another additional written statement for said amendment contending that the suit is barred by time and liable to be dismissed. The suit is bad for non-joinder of necessary parties and the same is liable to be dismissed for that reason alone. Court fee paid is not proper. On this ground also, the suit is liable to be dismissed. The plaintiffs by virtue of an amendment have sought for a declaration, but however not paid the Court fee for the same. There is no cause of action for the above suit and the same is liable to be dismissed. Plaintiffs have got allotted certain properties under a partition and 2nd defendant issued notice calling upon the plaintiffs to produce the partition deed and the details of partition and katha certificate and katha extract and tax paid receipts. In response to the same, plaintiffs have produced the copy of application under Order 23 Rule 3 read with Sec.151 of CPC alleged to be filed O.S.No.4577/1997. The said application furnished to the Court is not binding and has no effect. The plaintiffs have 20 OS.No.1443 of 1996 deliberately filed the above suit in 1997, subsequent to th filing of this suit. In collusion the parties to the said suit have settled with an intention to deprive the defendant of his legitimate rights. As such 2nd defendant denies the alleged compromise application by the plaintiff. The plaintiffs have taken contradictory contentions by way of amendment. The 2nd defendant contends that the properties alleged to be allotted to the plaintiffs under the alleged compromise application mentioned above and the suit schedule properties are not one and the same. The plaintiffs have no right, title or interest whatsoever in the suit schedule property. The plaintiffs without having any right over the suit schedule properties have filed the present suit against the 2nd defendant with an intention to harass him. The property numbers, schedules, measurements and description shown in the schedule and the properties mentioned the compromise are not identical and do not tally. It is very clear from the plaint averments that the plaintiffs have failed to establish their right, title and interest over the suit schedule properties and their right, title and interest over the suit schedule properties and as such the above suit is liable to be dismissed. He denied the contentions taken by the plaintiff in para No.3(a) to (d) of the amended plaint specifically and prayed for dismiss the suit.
9. On 3.3.2018 the 2nd defendant again filed the additional written statement after the amendment 21 OS.No.1443 of 1996 application was allowed by the Hon'ble High Court of Karnatka. But the said written statement was not considered by this Court and in the said written statement he has contended that plaintiffs are not entitled for the relief of declaration and possession in respect of the suit schedule property.
10. On the above facts, the following issues and additional issues have been framed:-
1. Whether the plaintiffs prove that they are in lawful possession of the suit schedule property as on the date of the suit?
2. Whether they further prove that the defendants have interfered with their possession over the suit schedule property?
3. Whether they further prove that the defendant No.2 to 5 are attempting to put up construction on the suit schedule property?
4. Whether the plaintiffs are entitled to the injunction as prayed for?
5. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiffs prove that they are the owners of the plaint schedule properties?
22 OS.No.1443 of 19962. Whether the plaintiffs prove that the 2nd defendant has unauthorizedly put up construction in "A" schedule property and he is in illegal occupation of the plaint "B" schedule property?
3. Whether the plaintiffs are entitled for the vacant possession of plaint "B" schedule property?
11. In order to prove the case of plaintiff's case, the 2nd plaintiff himself examined as P.W.1 and got marked Ex.P.1 to P.19. On behalf of defendants, 2nd defendant himself is examined as D.W.1 and got marked Ex.D.1 to Ex.D.20.
12. Heard arguments.
13. My answers to the above issues are as follows:-
Issue No.1:` Partly in affirmative
Issue No.2: In the affirmative;
Issue No.3: In the affirmative;
Issue No.4: In the affirmative;
Additional In the affirmative;
Issue No.1:
Additional In the affirmative;
Issue No.2:
Additional In the affirmative;
Issue No.3:
Issue No.5: As per final order for the following
reasons:
23 OS.No.1443 of 1996
REASONS
14. Issue No.1, 3, Additional Issue No.1 to 3: All
these issues are interlinked with each other. Hence, I answer all these issues in common to avoid repetition of facts.
15. Initially the present suit is filed by the plaintiff No.1 and 2 against the defendant No.1 to 4 only for the relief of permanent injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of suit schedule property. Subsequently defendant No.1 was deleted. Plaint was amended accordingly and thereafter, the suit was converted into mandatory injunction and declaration of title of the plaintiffs' "B" schedule property and for possession of "B" schedule property.
16. During the course of trial, plaintiff No.2 died and his L.Rs were brought on record.
17. The case of the plaintiffs that originally Survey No.286/2, Old No.263/1 of Subbayyanapalya, K.R.Puram Hobli, Bengaluru South Taluk belongs to the father of the plaintiffs late Sri.A.Muniswamappa who acquired the same under registered sale deed in the year 1955. The said property is joint Hindu undivided family and RTC stands in the name of Sri.A.Muniswamappa. In the present case, it is undisputed fact that Sri.A.Muniswamappa was the owner of the suit schedule property. When the suit was filed initially 24 OS.No.1443 of 1996 for the relief of permanent injunction by the plaintiff No.1 and 2. Plaintiffs have contended that after death of Sri.A.Muniswamappa, plaintiffs were in lawful possession and enjoyment of suit schedule property, constructed the house and residing therein and they have constructed houses and shops leased to tenants . Subsequently the suit schedule property was included in BBMP ward and property was renumbered as Municipal No.7, 8 and 9. "B" schedule property is the part of "A" schedule property. Subsequent to filing the suit, the plaintiff got amended the plaint and contended that the 2nd defendant by over night constructed unauthorized shed in the suit sites starting living therein. On enquiry, 2nd defendant who was working as Mason assured that as owner has to complete the construction work nearby property, he will immediately vacate and hand over possession of "B' schedule property to the plaintiffs and hence, the plaintiff demanded the defendants to hand over the vacant possession of "B' schedule property. The defendant No.2 failed to hand over the possession and hence, the suit.
18. Defendant No.2 to 4 contending that Sri.A.Muniswamappa and his son Appaji executed an agreement of sale in favour of defendant No.2 to 4 on 26.2.1983 in respect of site No.37, 38 and 39. Subsequently the said property was acquired by BDA by that time Sri.A.Muniswamappa was died and his only son Appaji has executed an agreement of sale, GPA and affidavit in favour 25 OS.No.1443 of 1996 of the defendants with respect to site No.28 and 29 in the year 1985. Thereafter, the defendants have constructed house and residing therein. On the basis of these documents, the defendants are claiming that they are in possession and enjoyment of the suit schedule property under the agreement of sale validly executed by Appaji in respect of "B' schedule property and much prior to filing the present suit, they are constructed house and residing therein and when the 2nd defendant attempted to make construction over the existing building, the plaintiffs have filed the present false suit.
19. When the suit was converted into declaration suit, plaintiffs have claimed that in a partition suit filed by the sisters of the plaintiffs, plaintiff and other family members, suit schedule property was allotted to 2nd plaintiff S.M.Venkataparthy and he has become the absolute owner and hence he is entitled for declaration. The contention of the defendants in that regard is that the said suit is collusive suit and collusive decree was obtained by the plaintiffs only for the purpose of claiming relief in the present suit.
20. Plaintiffs in support of their case got examined 2nd plaintiff as P.W.1 and got marked Ex.P.1 to Ex.P.19. Ex.P.1 is the sale deed dated 10.7.1955 to show that 26 OS.No.1443 of 1996 Sri.A.Muniswamappa was the owner of entire Survey No.286/1 measuring 2 acres. In the present case, it is undisputed fact that said survey number is the absolute property of Sri.A.Muniswamappa. When the suit was initially filed by the plaintiffs only for the relief of permanent injunction. The plaintiffs have contended that the suit schedule property is the property of plaintiffs family. Since the suit is only for permanent injunction, the suit filed by the plaintiffs was valid. It is well settled principle of law that one member of the family can file the suit in respect of family to protect the same. Subsequent to filing the present suit, the suit was converted into mandatory injunction, declaration of title and possession of "B' schedule property , on the ground that the 2nd defendant has made an unlawful construction over "B" schedule property over night without the consent of the plaintiffs. Plaintiffs in order to show that they have become the absolute owners of the suit schedule property have produced Ex.P.17, certified copy of order sheet in O.S.No.4577/1997, certified copy of plaint in the said suit as per Ex.P.18, Ex.P.2, P.9 and P.12 are the katha certificates, Ex.P.3, 10 and 13 are the katha extracts with respect to Municipal No.7 to 9, Ex.P.4 to 8, 11 and 14 are the tax paid receipts. Ex.P.15 and 16 are the RTC extracts, Ex.P.19 is the index of land with respect to suit survey number standing in the name of Sri.A.Muniswamappa. P.W.1 filed his affidavit reiterating the contents of his plaint. This witness is cross examined by the defendants counsel in 27 OS.No.1443 of 1996 detail. During cross-examination, P.W.1, who is plaintiff No.2 in the present case, has stated that he is having two brothers namely Jayaram and Appaji, 4 sisters namely Jayalakshmamma, Shanthamma, Shyamala and Sunanda. All the legal heirs of Sri.A.Muniswamappa are not parties to the present suit. Ex.P.2 to P.16 are the documents came into existence after filing the present suit. In the present case, only the 2nd defendant is contesting the present suit. During cross-examination and in the written statement, 2nd defendant has not disputed the plaintiffs possession over the "A" schedule property as described in the "A" schedule. With respect to "B" schedule property,2nd defendant is claiming that Sri.A.Muniswamappa and his only son Appaji executed an agreement of sale in respect of site No.37, 38 and 39 and the same were acquired by BDA and after the death of Sri.A.Muniswamappa, Appaji has executed GPA and affidavit in respect of site No.28 and 20 as a compensation to the site No.37 to 39 acquired by BDA. The defendants are also contending that the defendants have paid the entire sale consideration amount to Sri.A.Muniswamappa and Appaji and hence, Power of Attorney executed by Appaji in favour of the defendants is irrevocable POA coupled with interest as per Sec.202 of Indian Contract Act. On that ground, the defendants are claiming that they are the absolute owners of the "B" schedule property. It is admitted fact that initially the suit survey number was agricultural land and the said property was never converted into non 28 OS.No.1443 of 1996 agricultural land and there is no approved layout was formed in the said survey number. Since the plaintiff has produced the certified copy of order sheet in O.S.No.4477/1997 and certified copy of plaint in the said suit as per Ex.P.17 and 18, it is clear that there was a partition suit, which ended in compromise and the suit schedule property was fallen to the share of the 2nd plaintiff. It is true that during the course of evidence, the plaintiff has not produced the compromise decree or compromise petition. But on 9.4.2018, the plaintiff has produced certified copy of compromise petition filed in O.S.No.4577/1997, wherein the suit schedule property was allotted the 2nd plaintiff. From the contents of Ex.P.17 i.e., the certified copy of order sheet in O.S.No.4577/1997 it is evident that the compromise petition was accepted and the decree was passed accordingly. Under these circumstances, it is clear that as on today, the suit schedule property was exclusively belonging to the 2nd plaintiff and after his death, his L.Rs are the absolute owners of the suit schedule property as described in the plaint schedule. Though the defendants are contending that the said suit is a collusive suit and the decree obtained is the collusive decree in order to deceive the defendants in the present suit. The defendants being the strangers to the family of the plaintiffs cannot dispute the compromise decree entered into between the plaintiffs family members with respect to family properties. The said suit was filed with respect to the suit 29 OS.No.1443 of 1996 schedule property along with the other family properties. Under these circumstances, in the absence of any evidence produced by the defendants in the present case , they cannot contend that the said suit is collusive suit and the decree obtained is a collusive decree. The defendants are claiming in the present case that Sri.A.Muniswamappa has executed an agreement of sale in respect of site No.37, 38 and 39 formed in Survey No.286/2 of Subbayyanapalya. In the present case, the defendants except producing Ex.D.1 to D.20, no other evidence is produced by the defendants. On perusal of Ex.D.6 i.e., agreement of sale alleged to have been executed by Sri.A.Muniswamappa in favour of defendant No.2 to 4 with respect to site No.37, 38 and 39 formed in Survey No.286/2 of Subbayyanapalya, as admitted by the defendants. In that regard, no evidence is produced by the defendants and not denied by the plaintiff s and hence, the contention of the defendants has to be accepted. As far as acquisition of the said property by the 1st defendant in order to form road, as far as the validity of Ex.D.6 is concerned, the said document is executed on stamp paper of Rs.5/- according to the defendants, the defendants came in possession of the said site No.37 to 39 under Ex.D.6. According to defendants, Ex.D.6 the agreement of sale was executed by Sri.A.Muniswamappa. But on perusal of Ex.D.6, it is clear that there is no signature of Sri.A.Muniswamappa having executed the same in favour of defendant No.2 to 4. The vendors column of 2nd page of 30 OS.No.1443 of 1996 Ex.D.6, there is signature of Appaji, the alleged signature of Sri.A.Muniswamappa on 1.7.1984 and 27.11.1983 is the signature for having received the subsequent amount as alleged in Ex.D.6. With respect to this subsequent payments made on 27.11.1983 on 1.7.1984 as per shara on Ex.D.6 is concerned, there is no pleading and evidence produced by the defendants in the present case. Even in Ex.D.6, the separate measurement of site No.37, 38 and 39 is not mentioned. There is no evidence to show that there was a layout was formed in Survey No.286/2 of Subbayyanapalya and site No.37, 38 and 39 were existed. It is also pertinent to note that as on the date of Ex.D.6, S.M.Appaji S/O Sri.A.Muniswamappa, who has alleged to have been executed Ex.D.6 in favour of the defendants, there is no evidence to show that as on the date of Ex.D.6, Appaji was the absolute owner of the said properties i.e., site No.37 to 39. The defendants have contended that on the date of Ex.D.6, they were not aware of Sri.A.Muniswamappa was having other children. Since the defendants themselves are contended that the sites mentioned in Ex.D.6 were acquired by the 1st defendant to form road, there is no evidentiary value to Ex.D.6 and on the basis of Ex.D.6, the defendants cannot claim any reliefs. The defendants further contended that that since the property under Ex.D.6 were acquired by the 1st defendant to form road, Appaji was executed GPA as per Ex.D.4 and affidavit as per Ex.D.5 on 1.7.1985 with respect of site No.28 and 29. Even there is no evidence to 31 OS.No.1443 of 1996 show that as on the date of Ex.D.4 and D.5, a layout was formed in Survey No.286/2, old No.263/1 and the "B" schedule property was given site No.28 and 29. No layout plan produced by the defendants in support of their contention to show that layout was formed in suit survey number. 2nd defendant in his written statement as described his property as written statement schedule is the portion of sites bearing No.28 and 29 in Survey No.286/2 of Subbayyanapalya, K.R.Puram Hoblig, Bengaluru South Taluk measuring east to west(Northern side): 42 feet, east to west (southern side): 40 feet, north to south: 22 feet measuring in all 902 square feet bounded on east by 7th Main, 80 feet road, west by 20 feet road, north by A.M.Appaji's property(Vendor) and south by Property of defendant No.3, Site area 902 square feet, built area ground floor 902 square feet, first floor 77 square feet, roof: RCC, electricity and water available to the said properties. Whereas the schedule is shown in the alleged GPA alleged to have been executed by Appaji in favour of defendant No.2 to 4, the schedule is shown as site No.28, 29 in Survey No.286/2, old No.263/1 of Subbayyanapalya, K.R.Puram Hobli, Bengaluru South Taluk. Property belonging to Sri.V.Dorai Raju, east to west 22 feet north side, north to south 40 feet and Sri.V.Haridas, the defendant No.3 was having property measuring east west 20 feet and north to south 38 feet, Sri.V.Nagaraj, 4th defendant has acquired property measuring east to west 20 feet and north to south 32 OS.No.1443 of 1996 36 feet bounded east by 80 feet road, west by 20 feet road, north by owners site and south by owners site. North to south site numbers has not been mentioned in Ex.D.4. 2nd defendant Dorai Raju claiming property measuring east west northern side 42 feet n east to west southern side 40 feet, north to south 22 ft., measuring in all 902 square feet. From this it is clear that the property described in the schedule of Ex.D.4 GPA and the property is claimed by the 2nd defendant is in his written statement schedule is not tallying with each other. Apart from this, as already stated above, Ex.D.6, though alleged to have been executed by Sri.A.Muniswamappa, there is no signature of Sri.A.Muniswamappa as executant of Ex.D.6. With respect to site No.28 and 29 is concerned, no agreement of sale was executed in favour of the defendants. Ex.D.4 is the GPA alleged to have been executed by Appaji in favour of defendants. There is no evidence to show that on the date of Ex.D.4 and D.5, Appaji was the absolute owner of "B" schedule property. Under these circumstances, even if we consider that Ex.D.4 to 6 have been executed by Appaji in the absence of any evidence to show that Appaji was the absolute owner , the property claimed as by the defendants in the present case, the documents executed by Appaji in respect of that property will not create any right over the suit schedule property in favour of defendants. The defendants cannot claim protection under Sec.53(A) of T.P.Act, in the absence of any agreement with respect to site 33 OS.No.1443 of 1996 No.28 and 29 as claimed by the defendants, Sec.53(A) of T.P. Act is not come to the rescue of the defendants. GPA as per Ex.D.4 and affidavit as per Ex.D.5 are not the agreements of sale. The said document cannot be considered as contract and hence, Sec.202 of Contract Act cannot be made applicable to Ex.D.4 and Ex.D.5. The defendants counsel argued that Ex.D.4 is irrevocable GPA coupled with interest and hence, it creates right over the schedule property in favour of defendant No.2 to 6. The said contention cannot be accepted, because there is no evidence to show that as on the date of Ex.D.4 to D.6, Appaji was the absolute owner of the property involved in the said document and also in the absence of agreement of sale i.e., contract in respect of suit schedule property in favour of defendant No.2 to 6. On the basis of Ex.D.4 and D.5, the defendants cannot claim that Ex.D.4 is irrevocable POA coupled with interest as contemplated under Sec. 202 of Contract Act. Since there was no agreement executed either by Appaji or Sri.A.Muniswamappa in respect of "B" schedule property, the defendants cannot claim protection under Sec.53(A) of T.P.Act provides for a shield of protection to the proposed transferee to remains in possession against the original owner, who has agreed to sell to the transferee, if the proposed transferee satisfies other condition of Sec.53(A). That protection is available as a shield, only against the transferor, the proposed vendor and would disentitle him from disturbing the possession of the 34 OS.No.1443 of 1996 proposed transferee, who are put in possession pursuant to such an agreement.
21. In the present case, no such agreement is produced by the defendants in support of their contention that "B" schedule property bears site No.28 and 29 and Appaji was the absolute owner of the said sites in order to claim protection under Sec.53(A) of T.P.Act , certain ingredients have to be fulfilled and those are a contract to transfer immovable property, the transfer should be for consideration, the contract must be in writing, it should be signed by or on behalf of the transferor, the terms of the contract can be ascertained with reasonable certainty from the writing, the transferee takes possession of the whole or part of the tainty from the writing, the transferee takes possession of the whole or part of the property or if already in possession continues in possession, such taking of or continuance in possession should be in part performance of the contract, the transferee should do some act in furtherance of the contract and he should have performed or be willing to perform his part of the contract. In the present case, none of the ingredients were present. There is no written agreement with respect to the property claimed by the defendants in the present case. There is no written contract between the owners of the property and defendant No.2 to 4 and there is no evidence to show that the transferee has taken possession of the property in part performance of the agreement. Under these circumstances, 35 OS.No.1443 of 1996 the defendants cannot claim protection under Sec.53-A of T.P.Act.
22. In support of this contention, plaintiffs have produced a decision reported in AIR 2008 Supreme Court 493, wherein it is held that:-
"Benefit of protection under Sec.53-A of T.P.Act. Not available to transferee who remaining passive. Suit for declaration of title and possession by purchaser of property. Defendants claiming to have been put in possession in part performance of earlier agreement for sale. Not intimating their intention to perform their part of contract. No evidence to show that plaintiff had notice of earlier agreement. Defendants not entitled to protection of S.53-A of T.P.Act."
23. The principle laid down in the above case is perfectly applicable to the present case. In the present case, there is no agreement as already stated above in respect of suit schedule property between the plaintiff and the defendants or Appaji and defendants, even if we consider that they are entitled protection under Sec.53-A of T.P.Act. Ex.D.4 alleged to have executed on 1.7.1985 and the affidavit is dated 1.7.1985 and the present suit is filed in the year 1996. Till today the defendants have not made any attempt to get execute sale deed on the basis of the alleged documents as per Ex.D.4 to Ex.D.6. There is no evidence to show that the defendants were put in possession of the suit 36 OS.No.1443 of 1996 schedule property under Ex.D.4 to 6. Ex.D.6 is with respect to site No.37 to 39 and Ex.D.4 and Ex.D.5 are with respect to site No.28 and 29. There is no evidence to show that "B" schedule property is bears site No.28 and 29 as there is no layout was formed and no evidence is produced by the defendants to show that the layout was formed.
24. He further relied on a decision reported in AIR 2011 Madras 192, wherein it is held that (A) Suit for declaration of title and recovery of possession, Defendant claiming perfection of title by adverse possession. Admittedly suit property belonged to plaintiffs mother. Defendant entrusted with permissible possession of manage property by virtue of agreement to sell. Defendants also categorically admitted their possession to be permissive possession pursuant to part of performance of agreement. Defendant failed to prove as to when their possession became adverse to knowledge of plaintiffs. Perfection of title by adverse possession not established , Mere fact that possession was handed over to defendant in part performance of contract not enough to non suit plaintiff. Plaintiff entitled to relief of recovery of possession.
"B" Part performance , Protection under Sec.53-A. Agreement to sell. Appellant/purchaser failed to prove that they were ready and willing to perform their part of contract. Even no suit seeking specific performance of contract filed by 37 OS.No.1443 of 1996 appellant. Appellants cannot resist suit for relief of recovery of possession."
25. In the present case, defendants have not made any attempt to file the suit for specific performance of contract against the defendants or the executants of Ex.D.4 to 6 to get execute sale deed. He further relied on a decision reported in 2011 AIR SCW 5289, wherein it is held that:-
" Benefits of-availability. Suit for declaration of title and possession. Defendant further claiming that he was put in possession in part performance of agreement to sell. Further claiming that there being ban on registry of property transferor executed irrevocable power of attorney in his favour. Recitals of power of attorney however showing that transferor was in possession of suit property on date of its execution . Finding that defendant was not put in possession in part performance of agreement. Justified."
26. In the present case also there is no evidence to show that the defendants are put in possession of the suit schedule property on the basis of Ex.D.4 to D.6 and they are in lawful possession of the suit schedule property. He further relied an unreported judgment in RFA No.1827/2010 of Hon'ble High Court of Karnataka, wherein at page No.14 it is held that on the basis of the decision reported in (2004) 8 SCC 614 that :-
38 OS.No.1443 of 1996"Protection provided under Sec.53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of proposed transferor, who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against the third party."
27. In the present case, the plaintiffs are not the parties to Ex.D.4 to 6. Appaji was the owner of the suit schedule property. Even otherwise since the plaintiffs are not parties to the said transaction. The protection under Sec.53-A of T.P.Act cannot be pressed into service against the plaintiffs who are 3rd party by the defendants.
28. He further relied on a decision reported in 2013(1) AKR 485, wherein it is held that :-
"Sec.53(A) of T.P.Act provides for a shield of protection to the proposed transferee to remains in possession against the original owner, who has agreed to sell to the transferee, if the proposed transferee satisfies other condition of Sec.53(A). That protection is available as a shield, only against the transferor, the proposed vendor and would disentitle him from disturbing the possession of the proposed transferee, who 39 OS.No.1443 of 1996 are put in possession pursuant to such an agreement. The doctrine of part performance is an equitable doctrine. The right to protect possession under this provisions cannot be pressed into service by a third party like the 2nd defendant against the proposed vendor in relation to the suit schedule property. Since proposed transferee had already transferred the land to the third party, whatever may be the nature of possession of the third party, she cannot protect the possession under this provision."
29. He further relied on a decision reported in (2009) 2 Supreme Court Cases 323, wherein it is held that:-
" Better title. Determination of.
Respondent/plaintiff buying property from "T (vendor) having title/possession)-K (power of attorney holder from T) allegedly had entered into an agreement to buy the suit land from T. Defendant 1 and then appellant/defendant No.2 in permissive possession through K. Effect-Held appellant/defendant No.2 who came in permissive possession of the property cannot be said to have acquired a better title than respondent/plaintiff."
30. In the present case, the defendants claiming possession over the property on the basis of not legally executed documents as per Ex.D.4 to 6. The plaintiffs are contending that the defendants are in permissive possession of the suit schedule property. The alleged executants of Ex.D.4 to 6 was not owner of the schedule property on the 40 OS.No.1443 of 1996 date of those documents. Under these circumstances, the defendants cannot claim title over the property on the basis of Ex.D.4 to Ex.D.6. The defendants have not made any attempt till today to get execute sale deed on the basis of Ex.D.4 to D.6.
31. He further relied on a decision reported in 2009 AIR SCW 6026, wherein it is held that:
"B" 1) a contract to transfer immovable property; 2) the transfer should be for consideration; 3) the contract must be in writing, 4) it should be signed by or on behalf of the transferor, 5) the terms of the contract can be ascertained with reasonable certainty from the writing, 6) the transferee takes possession of the whole or part of the tainty from the writing, 6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession, 7) such taking of or continuance in possession should be in part performance of the contract, 8) the transferee should do some act in furtherance of the contract and 9) he should have performed or be willing to perform his part of the contract.
The act or action relied on as "evidencing part performance" must be of such nature and character that its existence would establish the contract and its implementation.
In the instant case after the execution of the alleged agreement for sale, the purchaser company was totally silent and it 41 OS.No.1443 of 1996 was only after more than 10 years thereafter, for the first time, it asked the owner to complete the sale and that too after the ejectment suit was filed by the owner.
Held in the facts and circumstances of this case, the doctrine of part performance under Sec.53-A could not be revoked. "
32. He further relied on a decision reported in AIR 2012 Supreme Court 264, wherein it is held that:-
"A" Pleadings and particulars-
Necessary to enable court to decide rights of parties in trial.
Pleadings and particulars are necessary to enable the Court to decide the rights of the parties in the trial. Therefore, the pleadings are more of help to the Court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that " as a rule relief not founded on the pleadings should not be granted'. A decision of a case cannot be based on ground outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ.
"C" Specific plea. Appellant failed to take specific plea before lower Courts to show that suit was not maintainable. Vague plea to the extent that suit was bad for non joinder and thus was not maintainable." Did not meet the requirement of law."42 OS.No.1443 of 1996
33. In the present case also, the defendants have baldly contended that the suit is not maintainable for non joinder of necessary parties. There is no specific pleading as to and what circumstances, the suit is bad for non joinder of necessary parties. It is true that the suit for declaration was filed, all the person, who are entitled for the property are necessary parties to the suit. But in the present case, after filing the present case before amending the suit for declaration of title, the persons acquired title over the suit schedule property and by amending the plaint, the plaintiff has taken a separate plea and also prayer for the relief of declaration of his title and possession. It is well settled principle of law that if the amendment is allowed that goes back to the date of filing the present suit. Under these circumstances, the plaintiff is entitled for declaration of title and the contention of the defendants that the suit is bad for non joinder of necessary parties cannot be accepted. The claim of the defendants that the suit in O.S.No.4577/1997 is a collusive suit and decree obtained is a collusive decree, as the defendants are not the family members of the plaintiffs family. The other family members of the plaintiffs have not disputed the title of the plaintiffs over the suit schedule property after amending the plaint in that regard.
34. He further relied on a decision reported in 2002(3) Supreme Court 676, wherein it is held that :-
43 OS.No.1443 of 1996"C" Limitation Act- Applicability- Law of Limitation does not apply to a plea taken in defence by defendant even though that defence as a claim made by him may not be enforceable in Court being barred by limitation."
35. He further relied on a decision reported in (2004) 8 Supreme Court Cases 614, wherein it is held that:-
"B" T.P.Act-S.53-A- Doctrine of part performance enshrined under-Nature and history of-Conditions that must be fulfilled for attraction of-Held protection provided under Sec.53-A is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee, who is put in possession in pursuance of such an agreement. However. It has nothing to do with the ownership of the transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee."
36. In the present case only on the bases of inadmissible illegal documents as per Ex.D.4 to D.6, the defendants cannot claim protection under Sec.53-A of T.P.Act. Considering over all evidence produced by the plaintiffs and the defendants and the decision relied on by the plaintiffs in the present case, it is clear that as on the date of filing the present suit, plaintiffs was in possession of "A" schedule property except "B" schedule property. Subsequent to amendment, the plaintiffs are contending 44 OS.No.1443 of 1996 that the 2nd defendant has over night made a construction in "B" schedule property , but there is no specific allegations as to when the 2nd defendant was made such construction over the property, no evidence is produced by the plaintiffs to show that during pendency of the suit, the 2nd defendant put up the ground floor construction in "B" schedule property . The defendants have contended that the said construction was made in the year 1985 itself on the basis of Ex.D.4 to 6. As already discussed above, the defendants cannot claim valid possession over the suit schedule property on the basis of Ex.D.4 to 6. Under these circumstances, the construction made by the defendants in "B" schedule property is illegal having any right over the "B" schedule property. Under these circumstances, the said construction is unauthorized construction. In the absence of any evidence produced by the plaintiffs to show that the defendants have made construction of the ground floor in "B" schedule property after filing the present suit cannot be accepted. As on today, it is admitted fact that "B" schedule property is in possession of the 2nd defendant. The said possession is illegal possession as the same is not based on validly executed documents by the owner of the property as on the date of Ex.D.4 to 6. On the basis of Ex.D.4 to 6, the defendants cannot claim title over the "B" schedule property and hence, 2nd plaintiff is the owner of "B" schedule property and he was in possession of "A" schedule property as on the date of filing the present suit, except "B" schedule 45 OS.No.1443 of 1996 property and plaintiff is entitled for possession of "B" schedule property. The construction made by the defendant No.2 in the "B" schedule property is illegal and unauthorized construction and defendants are in illegal possession of the "B" schedule property. Hence, I answer Issue No.1 partly in affirmative, Issue No.3 in affirmative and Additional Issue No.1 to 3 in affirmative.
37. Issue No.2 and 4: Both these issues are interlinked with each other. Hence, I answer both these issues in common to avoid repetition of facts.
The defendants themselves in the written statement have contended that they have made construction over the "B" schedule property. When the defendants were making first floor construction, plaintiff has filed the present suit. Though the plaintiffs have not produced any evidence to show that when the defendants have made first floor construction over the schedule property in view of the admission of defendants in the written statement that when the defendants were making first floor construction, plaintiffs have filed the present suit. Under these circumstances, it is clear that the defendants have interfered with the plaintiffs possession over the schedule property by making the construction in the "B" schedule property. In view of the discussions made above, the plaintiffs are entitled for injunction restraining the defendants from 46 OS.No.1443 of 1996 interfering with the plaintiffs possession of "A" schedule property except the "B" schedule property, the plaintiffs are entitled for the possession of "B" schedule property and the construction made by the 2nd defendant in "B" schedule property , which is part of "A" schedule property is unauthorized without having any right, title or interest over the same. Hence, the plaintiffs are entitled for vacant possession of "B" schedule property. In view of these circumstances I answer Issue No.3 and 4 in affirmative.
38. Issue No.5: In view of my findings on the above issues and discussions made above, I proceed to pass the following:-
ORDER Suit of the plaintiff is partly decreed with costs.
L.Rs of plaintiff No.2 are hereby declared as absolute owners of the suit schedule property.
The defendants are hereby restrained by permanent injunction from interfering with plaintiff's possession over the "A" schedule property excluding "B" schedule property.
Further defendant No.2 is hereby directed to hand over actual vacant possession of the suit schedule property in favour of plaintiff by removing unauthorized 47 OS.No.1443 of 1996 construction in favour of plaintiff within 60 days from the date of this order. On his failure, Plaintiff No.2 is at liberty to apply for the same.
Draw decree accordingly.
{Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this 8th day of June 2018.} (K.B.PATIL) XI Addl. City Civil Judge Bangalore city.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.S.M.Venkatapathi List of documents exhibited for plaintiff:-
Ex.P.1 Sale deed dated 15.7.1955
Ex.P.2: Katha certificate
Ex.P.3: Katha extract
Ex.P.4 to 8: Tax paid receipts
Ex.P.9: Katha certificate
Ex.P.10: Katha extract
Ex.P.11: Tax paid receipt
Ex.P.12: Katha certificate
Ex.P.13: Katha extract
Ex.P.14: Tax paid receipt
Ex.P.15 & 16: 2 certified copies of RTC extract
Ex.P.17: Certified copy of order sheet in
48 OS.No.1443 of 1996
O.S.No.4577/1997
Ex.P.18: Certified copy of plaint
Ex.P.19: Index of land
List of witnesses examined for defendant/s:
D.W.1 Sri.V.Dorairaju List of documents exhibited for defendant/s:
Ex.D.1: Notice issued by Bengaluru
Mahanagara Palike in favour of 2nd
defendant dated 29.1.2001.
Ex.D.2: Tax paid receipt
Ex.D.3: Agreement of lease dated 1.12.1993
Ex.D.4: GPA
Ex.D.5: Affidavit
Ex.D.6: Agreement dated 26.2.1983
Ex.D.7 to D.15: Electricity bills
Ex.D.16 to 19: Photographs
D.16(a) to 19(a) Negatives
Ex.D.20: Certified copy of sale deed
XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY