Bangalore District Court
R.V.Narayana Murthy vs Sri.R.Rangaraju on 15 February, 2017
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE CITY (CCH-6)
This the 15th day of February, 2017
Present: Smt. ROOPA NAIK,
B.Sc.,MA,LLM,PGD (Human Rights)
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O.S.No.6499/2013
PLAINTIFF: R.V.Narayana Murthy
S/o late R.Venkatarama Setty,
Aged about 63 years,
R/at No.91/1-A,
Surveyor Street,
Basavanagudi,
Bengaluru- 560 004.
(By Sri. R.R.Desai, Advocate)
Vs.
DEFENDANTS: 1. Sri.R.Rangaraju
S/o R.Seetharama Raju,
Aged about 65 years.
2. Smt.R.Shanthamma
W/o S.Rangaraju,
Major in age.
Both are r/at # 02,
2nd cross, O.T.C. Road,
K.K.Line, Cottonpet Cross,
Bengaluru- 560 053.
3. Sri.G.R.Gopinath
S/o late Revanna,
2 O.S.6499/2013
Aged about 47 years,
R/at No.46/2, Binny Mill Road,
Cottonpet Cross,
Bengaluru- 560 053.
(By Sri.Jalandera K, Advocate for D-1&2
Sri.B.S.Harish Kumar, Advocate for D-3)
Date of institution of the suit: 05.09.2013
Nature of the suit: Injunction
Date of commencement of 08.06.2015
recording of evidence:
Date on which Judgment was 15.02.2017
pronounced:
Duration Days Months Years
10 05 03
JUDGMENT
Present suit is filed by plaintiff against defendants for permanent injunction restraining the defendants, their henchmen, supporters, agents or anybody from interfering with plaintiff's peaceful possession and enjoyment of suit schedule property in any manner and for costs and other reliefs.
2. a) The plaintiff has stated that he is owner in possession and enjoyment of suit schedule property. Suit 3 O.S.6499/2013 schedule property belonged to BDA and BDA had allotted the same to defendant No.1 on 27.8.1984. BDA had executed registered lease-cum-sale agreement on 17.1.1990 in favour of defendant No.1 for a period of 18 years and fixed monthly rent at Rs.59/-.
b) It is further contended that defendant No.1 was in need of money for family necessity and also to discharge his hand loans. Defendant No.1 gave a proposal to sell suit schedule property to plaintiff for sale consideration of Rs.44,000/-. Plaintiff agreed to purchase suit schedule property for Rs.44,000/-. Defendant No.1 agreed to execute sale deed in favour of plaintiff after completion of lease-cum-sale agreement period of 18 years. Plaintiff believing defendant No.1 has paid full sale consideration of Rs.44,000/- to defendant No.1 through cheque. Defendant No.1 handed over possession of suit schedule property to plaintiff and also jointly executed affidavit in favour of plaintiff along with defendant No.2 on 2.5.1990 and also executed GPA dated 2.5.1990. 4 O.S.6499/2013
c) It is further contended that thereafter plaintiff demolished old building and constructed three stored building spending more than Rs.15,00,000/-. On 21.5.2011 BDA executed sale deed in favour of defendant No.1. thereafter plaintiff requested defendant No.1 to execute sale deed in his favour several times, but defendant No.1 went on postponing the same without any reason. Defendant No.1 with fraudulent intention colluding with defendant No.3 illegally created sale deed in name of defendant No.3 dated 11.2.2011. Defendant No.1 has no power, right, title or interest over suit schedule property. Said sale deed is illegal and not sustainable.
d) It is further contended that the defendants and their supporters are trying to interfere with plaintiff's peaceful possession and enjoyment of suit schedule property. Therefore, plaintiff is constrained to file present suit. It is prayed that suit may be decreed.
3. The plaint schedule reads as follows:
5 O.S.6499/2013
All that piece and parcel of the house bearing No.492, Kumaraswamy Layout 2nd Stage, Bengaluru - 560 078, measuring East to West: 11.50 meter and North to South: 5.10 meter, total area 47.38 Square meters, consisting of 3 floor building and bounded on:
East by: Road;
West by: Drain;
North by: EWS House bearing No. 491; and
South by: EWS House bearing No 493.
4. In pursuance of issuance of suit summons,
defendant Nos.1 to 3 appeared through their respective counsels. Defendant No.3 has filed his written statement. Defendant Nos. 1 and 2 have not chosen to file written statement.
5. a) Defendant No.3 has filed written statement denying plaint averments. It is further contended that defendant No.1 being absolute owner of suit schedule property having acquired right, title and interest by way of allotment from BDA has acquired absolute right, title and interest over suit schedule property and has constructed a residential building over the same.
Plaintiff, who is known to defendant No.1, had 6 O.S.6499/2013 approached him and convinced him that he would obtain absolute sale deed in favour of defendant No.1 as early as possible and obtained several signatures of defendant No.1 and his wife on blank stamp papers.
b) It is further contended that thereafter plaintiff went on promising defendant No.1 that he would get sale deed at the earliest in name of defendant No.1. However plaintiff failed to get the same done. Later on defendant No.1 came to know that plaintiff had concocted GPA. Defendant No.1 has no worldly knowledge and does not know reading and writing and thus plaintiff has obtained his signatures on blank papers and has created affidavit and GPA. Defendant No.1 has got issued a notice to plaintiff on 9.2.2011 canceling alleged GPA. Thus plaintiff's theory of defendant No.1 and his wife executing affidavit and GPA in his favour is nothing but cooked up story. Even otherwise plaintiff has no right whatsoever under alleged GPA, as the same was cancelled on 9.2.2011.
7 O.S.6499/2013
c) It is further contended that defendant No.1 being absolute of suit schedule property has sold the same in favour of defendant No.3 under registered sale deed dated 11.2.2011. Defendant No.3 has been in lawful possession and enjoyment of entire suit schedule property. Defendant No.1 has also executed confirmation deed in favour of defendant No.3. Therefore defendant No.3 has acquired lawful right, title and interest over suit schedule property. Defendant No.3 had filed O.S.No.4781/2012 for possession against one Kiran, who was in unlawful possession on ground floor. The Court by its Judgment and decree dated 4.4.2013 decreed said suit directing said Kiran to vacate and deliver possession of ground floor. Defendant No.3 has taken possession of the same through due process of law by filing execution case No.2014/2013. He had also filed petition against one Somasunder for ejectment in HRC No.147/2012.
d) It is further contended hat present plaintiff had filed an application under Order 1 Rule 10(6) CPC to 8 O.S.6499/2013 come on record. His application was dismissed as not maintainable. The Court opined that if at all he has got any right in suit schedule property, the remedy is by way of filing suit for specific performance. Against said order, plaintiff filed review petition 12/2013, which was dismissed by the Court. Plaintiff has now filed present suit to stall defendant from taking lawful possession under due process of law. There was a condition that defendant No.1 was prohibited from alienating and changing nature of the property for a period of 18 years. Plaintiff claims title over suit schedule property by virtue of alleged GPA and affidavit dated 2.5.1990, which is against conditions imposed by BDA. Plaintiff cannot claim any right, title or interest over suit schedule property in any manner. The alleged GPA and affidavit do not confer any title on plaintiff. It is prayed that suit may be dismissed.
6. Based on the above pleadings of parties, my Predecessor in office has framed following issues and additional issues:
9 O.S.6499/2013
1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of suit?
2. Whether the plaintiff further proves the alleged interference of defendants?
3. Whether the plaintiff is entitled for the reliefs claimed?
4. What decree or order?
7. In support of case of the plaintiff, he got himself examined as PW.1 and got marked Ex.P.1 to P.12. On the other hand, defendant No. 3 is examined as DW.1 and got marked Ex.D.1 to D.27.
8. Learned counsel for plaintiff has filed written arguments.
9. Heard and perused records and also perused written arguments of plaintiff.
10. My findings on the above issues are:
Issue No.1: In negative.
Issue No.2: Does not arise for consideration
Issue No.3: In negative.
Issue No.4: As per the final order
for the following :
10 O.S.6499/2013
REASONS
11. Issue No.1: At the outset, I would like to point out that present suit is for perpetual injunction. In other words, present suit is suit for injunction simpliciter. It is well settled proposition of law that in a suit for injunction, plaintiff who seeks indulgence of the Court, should establish his lawful jural and undisturbed possession over suit schedule property and also should further prove interference or threatening of dispossessing by defendants. If plaintiff fails to establish these ingredients satisfactorily, it would suffice to say that he will not be entitled for any relief. Keeping these facts in mind now let me analyze available evidence on record to determine as to whether lawful and jural possession of plaintiff over suit property is established.
12. Bone of contention of plaintiff is that he is owner in possession and enjoyment of suit schedule property. Suit schedule property belonged to BDA and BDA had allotted the same to defendant No.1 on 27.8.1984. BDA had 11 O.S.6499/2013 executed registered lease-cum-sale agreement on 17.1.1990 in favour of defendant No.1 for a period of 18 years and fixed monthly rent at Rs.59/-. Defendant No.1 was in need of money for family necessity and also to discharge his hand loans. Plaintiff agreed to purchase suit schedule property for Rs.44,000/-. Defendant No.1 agreed to execute sale deed in favour of plaintiff after completion of lease-cum-sale agreement period of 18 years. Plaintiff believing defendant No.1 has paid full sale consideration of Rs.44,000/- to defendant No.1 through cheque. Defendant No.1 handed over possession of suit schedule property to plaintiff and also jointly executed affidavit in favour of plaintiff along with defendant No.2 on 2.5.1990 and also executed GPA dated 2.5.1990. Thereafter plaintiff demolished old building and constructed three stored building spending more than Rs.15,00,000/-. After execution of sale deed by BDA in favour of defendant No.1, plaintiff requested defendant No.1 to execute sale deed in his favour several times, but defendant No.1 went on postponing the same without any 12 O.S.6499/2013 reason. Defendant No.1 with fraudulent intention colluding with defendant No.3 illegally created sale deed in name of defendant No.3 dated 11.2.2011. Defendant No.1 has no power, right, title or interest over suit schedule property. Said sale deed is illegal and not sustainable. Defendants and their supporters are trying to interfere with plaintiff's peaceful possession and enjoyment of suit schedule property.
13. In the light of above pleadings of plaintiff, I would like to find out as to whether plaintiff has proved his lawful possession over suit schedule property.
14. Plaintiff has got himself examined as PW.1 and has reiterated his contentions in the plaint. It is significant to note that PW.1 admits in his cross-examination that he is not in possession of suit schedule property. He further admits that entire suit schedule property is in possession of defendant No.3 Gopinath and that katha of suit schedule property is standing in name of defendant No.3 and that defendant No.3 is paying tax pertaining to suit 13 O.S.6499/2013 schedule property and that electricity connection and water connection of suit schedule property are standing in name of defendant No.3. These admissions given by PW.1 destroy his entire case.
15. Ex.P.1 and P.2 are katha certificate and katha extract showing name of defendant No.3. Ex.P.3 is allotment letter, Ex.P.4 is possession certificate both showing name of defendant No.1. Ex.P.8 is certified copy of registered sale deed dated 11.2.2011 executed by defendant No.1 in favour of defendant No.3 in respect of suit schedule property. Ex.P.9 is certified copy of sale deed dated 21.6.1978 executed by BDA in favour of defendant No.1. These documents are not of any help to plaintiff to prove his possession over suit schedule property.
16. In order to prove his possession over suit schedule property, plaintiff has mainly relied on Ex.P.5 GPA dated 2.5.1990, Ex.P.6 affidavit dated 2.5.1990. Ex.P.5 and P.6 are denied by defendant No.1 and plaintiff has also 14 O.S.6499/2013 not chosen to prove Ex.P.5 and P.6 by examining the scribe or witnesses of the same. In the result Ex.P.5 and P.6 also remain unproved. Admittedly no agreement of sale or sale deed was executed by defendant No.1 in favour of plaintiff. Therefore, only on the basis of Ex.P.5 and P.6, it cannot be held that plaintiff is in possession of suit schedule property especially when he himself has admitted that he is not in possession of suit schedule property.
17. Ex.P.7 is pass book of plaintiff. There is no consideration receipt passed by defendant No.1 in favour of plaintiff and therefore Ex.P.7 is also not of much use to plaintiff.
18. Ex.P.10 to P.12 are various rental agreements alleged to have been executed by plaintiff in favour of various persons. It is to be noted here that admittedly defendant No.3 had filed O.S.4781/2012 for possession against one Kiran. The Court by its Judgment and decree dated 4.4.2013 decreed said suit directing said Kiran to 15 O.S.6499/2013 vacate and deliver possession of ground floor. Defendant No.3 had taken possession of the same by filing execution case No.2014/2013. He had also filed petition against one Somasunder for ejectment in HRC No.147/2012. Present plaintiff had filed an application under Order 1 Rule 10(6) CPC for impleading him. His application was dismissed. Against said order, plaintiff had filed review petition 12/2013, which was also dismissed by the Court.
19. In view of order passed in above proceedings, Ex.P.10 to P.12 also do not come to aid of plaintiff. For the all the above stated reasons, I am of the opinion that plaintiff has utterly failed to prove that he is in lawful possession of suit schedule property on the date of suit.
20. On the other hand by producing Ex.D.1 notice dated 9.2.2011, Ex.D.2 certified copy of sale deed dated 11.2.2011, Ex.D.3 certified copy of sale deed dated 21.5.2011, Ex.D.4 certified copy of confirmation deed dated 8.12.2011, Ex.D.13 katha certificate, Ex.D.14 16 O.S.6499/2013 katha extract, Ex.D.21 demand notice issued by BWSSB, Ex.D.22 certificate issued by BESCOM, Ex.D.23 to D.27 tax paid receipts defendant No.3 has proved that he is in lawful possession of suit schedule property.
21. I have carefully perused records and of clear opinion that plaintiff's story of purchasing suit schedule property for Rs.44,000/- from defendant No.1 and defendant No.1 put in plaintiff in possession of suit schedule property has not seen light of the day. If at all plaintiff had any grievance against defendant No.1, he should have filed criminal complaint against him on allegation that he had cheated him or plaintiff should have sought for specific performance of contract by filing suit for specific performance. Instead he has come up with present suit for bare injunction, which is not permissible. For all the above stated reasons, I answer issue No.1 in 'negative'.
22. Issue No.2: When issue No.1 is answered in negative, issue No.2 does not arise for consideration. 17 O.S.6499/2013
23. Issue No.3: As issue No.1 is answered in negative, plaintiff is not entitled for reliefs claimed. Accordingly I answer this issue in 'negative'.
24. Issue No.4: In view of my finding on issue Nos. 1 to 3, I proceed to pass the following:
ORDER The instant suit filed by the plaintiff against defendants is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer on-line, printout taken thereof is corrected, signed and pronounced by me in Open Court on this 15th day of February, 2017).
(ROOPA NAIK) XXIV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1: R.V Narayana Murthy 18 O.S.6499/2013 List of documents marked for the plaintiff:
Ex.P.1: Certified copy of Khata Certificate Ex.P.2: Khata Endorsement Ex.P.3: Allotment letter Ex.P.4: Possession certificate issued by BDA Ex.P.5: GPA dated 2.5.1990 Ex.P.6: Affidavit dated 2.5.1990 Ex.P.7: Vijaya Bank pass book Ex.P.8: Certified copy of sale deed dated 11.2.2011 Ex.P.9: Certified copy of sale deed dated 21.6.1978 Ex.P.10: Rent agreement dated 20.5.2004 Ex.P.11: Rent agreement dated 7.1.2006 Ex.P.12: Rent agreement dated 24.7.2007 List of witnesses examined for defendants:
DW.1: G. R Gopinath.
List of documents marked for defendants:
Ex.D.1: Certified copy of sale deed dated 11.2.2011
Ex.D.2: Letter dated 9.2.2011
Ex.D.3: Certified copy of sale deed dated 21.5.2011
Ex.D.4: Certified copy of letter dated 8.12.2011
Ex.D.5: Certified copy of judgment in O.S.4781/2012
Ex.D.6: Certified copy of decree in O.S. 4781/2012
Ex.D.7: Certified copy of order sheet in Ex.2014/2013
Ex.D.8: Certified copy of delivery warrant issued in
Ex.2014/2013
Ex.D.9: Certified copy of mahazar in Ex. 2014/13
Ex.D.10: Certified copy of receipt regarding execution
of warrant in Ex. 2014/13,
Ex.D.11: Certified copy of orders on I.A. passed in HRC
No.147/2012
Ex.D.12: Certified copy of orders in review application.
12/2013 dated 24.7.2013
Ex.D.13: Khatha certificate
Ex.D.14: Khatha extract
19 O.S.6499/2013
Ex.D.15: Paper publication dated 10.2.2011
Ex.D.15(a): Relevant portion in Ex.D.15 Ex.D.16: Endorsement dated 18.4.2012 Ex.D.17: Notice Ex.D.18 to Bank extracts D.20:
Ex.D.21: Demand notice
Ex.D.22: Official Memorandum issued by BESCOM
Ex.D.23 to Tax paid receipts.
D.27:
(ROOPA NAIK)
XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE,
BANGALORE CITY.