Bangalore District Court
Revathi L vs Ashwath M on 5 July, 2024
KABC010166322010
IN THE COURT OF XVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH.NO.12)
Dated, this the 5th day of July, 2024
PRESENT
SMT. JYOTHSNA D., LL.B., LL.M.,
XVI Addl. City Civil & Sessions Judge, Bangalore.
O.S.NO.5682/2010
PLAINTIFFS SMT.L. REVATHI,
Aged about 35 years,
Wife of Sri. L. Rajashekar,
Residing at No.15-204, K.N.Road, Puttur,
Andhra Pradesh now having come to
Bangalore
Represented by Smt/Sri S.N.M., Advocate
- VERSUS-
DEFENDANTS 1) SRI M. ASHWATH
Major,
Father name known to this Plaintiff
Residing at No. 1, C-2 and 3,
23rd Main, Arjun Anthara,
Flat No.403, 3 rd Floor, J.P.Nagar,
V Phase, Bangalore-78
2) SRI MUNIYELLAPPA,
Major,
Son of Doddavajrappa,
2 OS No.5682/2010-Judgment
Residing at Sarakki Kere Village,
Uttarahalli Hobli, Bangalore South Taluk.
3)SRI GURUDEV,
Aged about 38 years,
Son of Star Muniswamy,
Residing at No.24, 10 th Main,
19th Cross, J.P.Nagar, 6 th Phase,
Banglaore-78
4) THE DISTRICT REGISTRAR OFFICE,
12th Main, IV Block, Jayanagar,
Bangalore.
5) THE SUB-REGISTRAR,
J.P.NAGAR, Konankunte Road,
Konankunte, Bangalore
Defendants No.1 to 3 represented by
Smt/Sri A.S., Advocate
Defendants No.4 and 5 represented by
ADGP
Date of institution of the suit : 13.08.2010
Nature of the suit (suit on pronote, INJUNCTION SUIT
suit for declaration and possession
suit for injunction,etc) :
Date of the commencement of 25.02.2020
recording of the evidence :
Date on which the Judgment was 05.07.2024
pronounced :
Total duration Year/s Month/s Day/s
13 11 22
(SMT. JYOTHSNA D.,)
XVI Addl. City Civil & Sessions Judge,
Bangalore
3 OS No.5682/2010-Judgment
JUDGMENT
This is a suit filed by the plaintiff praying the Court to pass a judgment and decree of permanent injunction against the defendants No.1 to 3 from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff and dispossessing the plaintiff in any manner whatsoever from the suit schedule property and for such other reliefs, as the Court deems fit in the circumstances of the case. On the other hand, the defendants No.1 and 2 have filed their Counter Claim with prayers ie., "The defendants No.1 and 2 in the above case most respectfully pray that this Hon'ble Court may kindly be pleased to pass a Judgment and Decree for recovery of possession against the plaintiff in respect of the suit schedule property by allowing their Counter Claim together with costs, in the interest of justice and equity." which is inserted subsequently by amendment of Written Statement.
2) The brief facts of the plaintiff's case are that:-
Originally, the property bearing Eastern Half Portion of Site No.1, formed out of Property No.25. Katha No.25, 4 OS No.5682/2010-Judgment situated at Sarakki Kere Village, Uttarahalli Hobli, Bangalore South Taluk belonged to Sri B. Shivram, who acquired the same through a registered sale deed registered as Doc. No.22774/2002-03 dated 27-01-2003 in the office of the Sub- Registrar, Kengeri, Bangalore from Sri Shambappa and others represented by their registered G.P.A Holder Sri Jayaram Naidu. The Copy of the sale deed is produced along with the plaint.
3) The said B.Shivram's elder brother Sri B. Srinivas had purchased the Western half portion of the above referred site through a separate registered sale deed registered as 22774/2002 - 3 dated 27-01-2003 in the office of the Sub-
Registrar, Kengeri, Bangalore. The copy of the said sale deed is produced along with the plaint.
4) After purchase of the above referred property by B.Shivaram and B. Srinivas, the children of predecessor in title ie., late Shambappa, interfered with the above referred property, due to which, Sri B.Srinivas and Sri B.Shivram filed a suit O.S.No.7231 of 2004 and O.S.No.7232 of 2004 against Sri Muniyellappa and others and the said suit came to be 5 OS No.5682/2010-Judgment compromised on 08-06-2009 in CCH-7. The copy of the Compromise Petition and the order on the compromise Petition are produced along with the plaint.
5) As per the above settlement, Sri Muniyellappa along with other family members also executed a Registered Confirmation Deed ratifying the acts and confirming the ownership of Sri B. Srinivas and Sri B. Shivram registered as Doc.No.JPN-1-01986-2009-10 C.D.No.JPND 47, dated 05-08-2009 in the office of the Sub-Registrar, J.P.Nagar, Bangalore. The Copy of the confirmation is produced along with the plaint.
6) It is further averred that out of the portion owned by Sri B.Shivram i.e., in the Eastern portion, the plaintiff has purchased North Eastern portion of property bearing Site No.25, formed out of property No.25. Sarakki Kere Village, Uttarahalli Hobli, Bangalore South Taluk measuring East to West 50 feet and North to South 60 feet in all measuring 3000 square feet through a registered sale deed registered as Doc.No.JPN-1-06384-2009-10 C.D.No.JPND62 dated 20-02- 6 OS No.5682/2010-Judgment 2010 in the office the of Sub-Registrar, J.P.Nagar, Bangalore. The copy of the sale deed is produced along with the plaint.
7) It is further averred that subsequent to purchase of the schedule property, the plaintiff has paid up to date tax in respect of schedule property. The copy of tax paid receipt for year 2010-11 and Form B Property Register issued by B.B.M.P., Bangalore in respect of schedule property are produced along with the plaint.
8) It is further averred that from the date of purchase of schedule property, the plaintiff has been in actual physical possession of the schedule property exercising thereon all rights of absolute ownership.
9) This being the actual facts, the defendant Nos.1 to 3 herein who are strangers to the suit schedule property have created documents and are claiming ownership of the schedule property and the entire extent of land in Sy No.25 of Sarakki Kere Village, Utharahalli Hobli, Bangalore South Taluk measuring 1 Acre 30 Guntas, which was originally in the name of Shambappa.
7 OS No.5682/2010-Judgment
10) It is further averred that the schedule property is part of property No.25 and the plaintiff after purchasing the property on 09-08-2010 started to construct compound over the entire schedule property. At the time of construction of the compound, the defendants No.1 to 3 herein along with their henchmen interfered with the peaceful possession and enjoyment of the plaintiff's property and also tried to dispossess the plaintiff from the suit schedule property with the intention of knocking of the plaintiff's valuable property, the plaintiff with the help of her husband and well-wishers, who were present near the schedule property resisted the illegal attempt of defendant Nos.1 to 3. However the defendant Nos.1 to 3 have vowed to come back with more men and muscle power and dispossess the plaintiff and encroach upon the plaintiff's schedule property. The photographs pertaining to the schedule property are produced along with the plaint. The plaintiff after interference of the defendants, immediately approached the jurisdictional Police Station and the police have advised the 8 OS No.5682/2010-Judgment plaintiff to approach this Hon'ble Court as the dispute is in civil nature.
11) It is further averred that after the aforesaid attempts made by defendant Nos.1 to 3, the plaintiff made inquiries and was shocked to know that the defendant No.2 by creating bogus documents has executed a Sale Deed in respect of property bearing Sy.No.25. Sarakki Kere Village, Uttarahalli Hobli, Bangalore South Taluk to defendant No.1 on 23-07-2010 in the office of the Sub-Registrar, J.P.Nagar, Bangalore Pending Doc.No.3449/2010-11. The plaintiff was further shocked to see that though independent houses have been constructed in the entire Sy.No.25, measuring 1 Acre 30 Guntas, the defendant No.1 has sold the property No.11, bearing Sy.No.25 claiming it as an agricultural land, when the entire area has come within the limits of BBMP, erstwhile Bommanahalli CMC in the year 1999. The Municipal Authorities have put cement roads and have given water connection and other amenities to the entire property.
12) It is further averred that the purported Sale Deed dated 23-07-2010 under which, the defendant No.2 has sold 9 OS No.5682/2010-Judgment to defendant No.1 has been kept pending for registration and the same has been referred to the District Registrar. The plaintiff after coming to know the above said facts, on 10-08-2010 has given a representation to the District Registrar i.e. the 4th defendant herein, to reject the Pending Registration Document referred to him by the 5th defendant in respect of property bearing Sy.No.25. Sarakki Kere Village, Bangalore, measuring 1 Acre 30 Guntas. The copy of the representation is produced along with the plaint. The plaintiff fears that if the 4th defendant orders for registration of the pending document referred to him by the 5th defendant, then the defendants No.1 to 3 based on the said registered Sale Deed and as per their claims made on 09-08-2010, the defendant No.1 to 3 may take law in their own hands and forcibly dispossess and encroach upon the plaintiff's schedule Property. The defendant Nos.1 to 3 and their henchmen are harassing the plaintiff without having any manner of right, title or interest over the suit schedule property. The defendant's henchmen are powerful persons having money and muscle power with the support of anti-social and goonda 10 OS No.5682/2010-Judgment elements. Hence there is imminent threat and danger to the plaintiff of being dispossessed from actual physical possession of the suit schedule property.
13) It is further averred that the plaintiff's rights have been threatened, if the defendant's henchmen succeed in dispossessing the plaintiff from the suit schedule property by illegal and unlawful means, the plaintiff will suffer great hardship which cannot be compensated in terms of money. The plaintiff has made out a prima facie and the balance of convenience is in favour of the plaintiff.
14) The cause of action for the suit arose on 09-08-2010 when the defendant Nos.1 to 3 and their henchman came to the suit schedule property and tried to interfere and dispossess the plaintiff with the intention of encroaching upon the schedule property. The suit schedule property is situated within the territorial jurisdiction of this Court and this Court has got jurisdiction to try this suit. Hence, prayed to decree the suit.
11 OS No.5682/2010-Judgment
15) In response to the suit summons, the defendants No.1 to 3 appeared through their counsel and the defendants No.4 and 5 appeared through ADGP.
16) The defendants No.1 and 2 filed their written statement contending that the suit filed by the plaintiff is only on imaginary grounds, vague, vexatious and by suppressing all the materials facts and on the basis of fraudulent and created documents. Therefore the suit is not maintainable either in law or on facts. Hence the suit is liable to be dismissed with exemplary costs.
17) The suit of the plaintiff is not maintainable for non-joinder of necessary parties and for mis-joinder of parties to the suit.
18) The plaintiff has filed the suit for permanent injunction against the defendants' No. 1 to 3, but, the plaintiff has not sought for any main relief against the defendants' No. 4 and 5. Therefore, as the suit filed by the plaintiff against the defendants' No.4 is without issuing notice as contemplated under section 80 CPC and without seeking any relief, the suit is liable to be dismissed for mis-joinder of 12 OS No.5682/2010-Judgment proper parties. The plaintiff has sought for interim relief against the defendants No.4 and 5 without seeking the main relief. Therefore, on this ground alone, the suit is liable to be dismissed with exemplary cost.
19) It is contended that the averments in para No.3 of the plaint that originally the property bearing Eastern half portion of site No.1 formed out of property No. 25, Katha No.25 situated at Sarakki Kere Village, Uttarahalli Hobli Bangalore South Taluk belonging to Sri B. Shivaram, he having purchased the same through the registered Sale Deed dated 27-1-2003 as Doc. No. 22774/2002-03 in the office of Sub-Registrar, Kengeri, Bangalore from Sri. Shambappa and others represented by G.P.A. holders Sri.Jaya Ram Naidu etc., are all concocted story and on the basis of created and manipulated fraudulent documents, the entire averments in the para. No. 3 are hereby denied. It is contended that in fact, the G.P.A., which is said to have been executed by Shambappa and others in favour of Jayaram Naidu, the property is mentioned as Sy.No.34. The copy of the said G.P.A. has not been produced by the plaintiff intentionally, 13 OS No.5682/2010-Judgment hence these defendants are producing the copy of the said G.P.A. along with the Written Statement.
20) It is contended that the averments in para 4 of the plaint that Sri.B. Shivaram's elder brother Sri.B. Srinivas had purchased the Western half portion of the above referred site through a separate sale deed dated 27-1-2003, is created story and in fact the said B. Shivarm and B. Srinivas colluding with their father Mr. Jayaram Naidu and the plaintiff along with her husband manipulated the documents and created the documents in the name of sale deed and G.P.A. etc, for the property belonging to the 2nd defendant and his family members earlier and presently belonging to the defendant No.1. Therefore the documents produced as documents Nos.1 and 2 by the plaintiff are fraudulent and created documents for the property which is not existing.
21) It is contended that the averments in para. No.5 of the plaint that after purchase of above property by Sri. B. Shivaram and B. Srinivas, the children's of predecessor in title late Shambappa interfered with the above property due to which Sri. B. Srinivas and B. Shivaram filed in suit in 14 OS No.5682/2010-Judgment O.S. No.7231/4 and O.S. No.7232/2004 against Sri. Muniyellappa and others and the said suit came to be compromised on 8/6/2009 in CCH-7 etc., are all created for the purpose of the suit with an intention to knock off the valuable property. When the parties to the suit in O.S.No. 7231 and 7232/4 are not at all having any semblance of rights on the property bearing Sy.No.25 of Sarakki Kere village, any compromise petition filed by themselves for the property belonging to others is not binding on the defendants and these defendants are not the parties to those suit, hence the compromise petition filed by the parties to the suit referred supra are by colluding each other and only for the purpose of manipulating and creating the documents for the property belonging to these defendants. Hence the compromise filed by the parties is by suppressing the material facts and by collusion and by playing a fraud, hence the orders obtained by the parties in those suits on the basis of collusive compromise petition is not binding on these defendants and is void, hence the documents produced in 15 OS No.5682/2010-Judgment that regard are created documents. Hence all the averments in para no 5 are denied as false.
22) It is contended that the averments in para No.6 of the plaint that as per the settlement, Sri. Munuyellappa along with other family members also executed a registered confirmation deed ratifying the acts and confirming membership of B. Srinivas, B. Shivaram as per the document dated 5/8/2009 etc., is also one more step the plaintiff is colluding with Muniyellappa S/o Shambappa along with Jayaram Naidu and his sons colluded with the plaintiff created one more document that is documents No.5 produced by the plaintiff in the name of confirmation deed by plain reading of the G.P.A. which has been produced by this defendants on which the plaintiff is relying upon and the sale deeds dated 27/1/2003 produced by the plaintiff at documents No.1 and 2 and also documents No.5, it is very crystal clear that one Shambappa, his son Muniyellappa and others have executed G.P.A., for the property bearing Sy.No.34 to the Jayaram Naidu, but the said Jayaram Naidu has created two sale deeds dated 27-1-2003 in the name of 16 OS No.5682/2010-Judgment his 2 sons for the property site No.1 formed out of katha No.25. No where in the alleged sale deed, it is mentioned the said Jayaram Naidu colluding with Muniyellappa S/o. Shambappa filed a suit for permanent injunction suit O.S. No. 7231/04 and 7232/2004 and colluding each other filed a compromise petition on 8-06-2009 wherein for the 1st time the parties in the suit brought the Sy.No.25 of Sarakki Kere village and this attitude of the plaintiff to the suit and said Jayaram Naidu and his sons colluding with each other created the documents for the property bearing Sy.No.25 of the Sarakki Kere village only with an intention to knock of the valuable property belonging to these defendants.
23) It is contended that the averments in para No. 7 of the plaint that out of the portion owned by B. Shivaram in the Eastern position, the plaintiff has purchased the North Eastern portion of the site No.25 formed out of property No.25 of Sarakki Village, Uttarahalli Hobli, Bangalore South Taluk measuring East to West 50 feet North to South 60 feet in sale deed dated 20/2/2010 is also baseless, far from truth and the document No.6 which is a sale deed dated 20-2-2010 17 OS No.5682/2010-Judgment produced by the plaintiff is created and concocted by playing fraud colluding with her vendors for the purpose of the suit. In fact, by plain reading of the sale deed produced by the plaintiff at documents 6, it is very crystal clear that in the said documents, there is no mention of the property situated at Sarakki Kere village are the property of Sy.No.25 of Sarakki Kere Village, but it is mentioned in the said created sale deed that the property No.25 of extent of 3,000 Sqft, Sarakki Village is entirely different from the Sarakki Kere village. The Sarakki Village is situated at 1st Phase of J.P.Nagar and Sarakki Kere Village is situated at 5th Phase of J.P.Nagar. Therefore, when the plaintiff is not at all having any semblance of right over the property of Sarakki Kere Village, she has filed an application for seeking an interim order restraining the defendant No.4 from ordering for registration of pending document dated 23-7-2010 where the property mentioned in the said documents of Sy No.25 Sarakki Kere village when the plaintiff claiming a right and seeking a relief of permanent injunction only for the property No. 25 of Sarakki Village. The plaintiff is not entitled for any 18 OS No.5682/2010-Judgment relief in respect of Sy.No.25 of Sarakki Kere village. Therefore the suit filed by the plaintiff is ill-conceived and liable to be dismissed.
24) It is contended that the averments in paragraph No.8 of the plaint that subsequent to purchase of the schedule property, the plaintiff has paid upto date tax in respect of the schedule property etc., are also created for the purpose of the suit and the same are hereby denied in toto. When the recital of the sale deed produced by the plaintiff itself clearly demonstrates that the property No.25 Katha No.25 of Sarakki Village, the question of claiming rights in the entire set of Sarakki Kere village does not arise at all. The entire set of facts and documents are created for the purpose of the suit and the documents are created, manipulated by the plaintiff by playing fraud on these defendants. Hence, the same are denied as false.
25) It is contended that the averments in paragraph No. 9 of the plaint that from the date of purchase of the schedule property, the plaintiff has been in actual physical possession of the schedule property exercising thereon all 19 OS No.5682/2010-Judgment rights of absolute ownership are far from truth, baseless and the entire averments are denied by these defendants in toto.
26) It is contended that the averments in paragraph No. 10 of the plaint that the defendant Nos.1 to 3 herein who are strangers to the suit schedule property have created documents and are claiming ownership of the schedule property and the entire extent of land in Sy. No. 25 of Sarakki Kere village, Uttarahalli Hobli, Bangalore South Taluk measuring 1 acre 30 guntas which was originally in the name of Shambhappa etc. are totally created by the plaintiff for the purpose of the suit. Hence, the entire averments are denied in toto. In fact, originally, the land bearing sy. No. 25 of Sarakki Kere village was the thoti service inam land attached to the office of the Thoti Neeraganti of Sarakki Kere village, Uttarahalli Hobli, Bangalore South Taluk having vested with the Government in view of the abolition of the Village Officers Act and right has been given to the holders of the land/officers of the Village Panchayat. Accordingly, one Dodda Vajrappa who was the holder of Neeraganti had filed an application before the Tahsildar for re-grant of the said 20 OS No.5682/2010-Judgment land and in view of the said Application filed by the said Dodda Vajrappa, the Tahsildar of Bangalore South Taluk has re-granted the schedule property in favour of the said Dodda Vajrappa as per the Order dated 30.12.1985 in No. HOA CR 60/1983-84 dated 30.12.1985. Certified copy of the order of the Tahsildar in the above case shows that the land measuring 1 acre 30 guntas in Sarakki Kere village, Uttarahalli Hobli, Bangalore South Taluk has been re-granted in the name of Dodda Vajrappa, copy of which is produced along with the written statement. Subsequent to the re-grant order, the katha of the said property measuring 1 acre 30 guntas in Sy. No. 25 of Sarakki Kere village has been transferred into the name of the said Dodda Vajrappa in MR No. 4/1985-86. Copy of the mutation register extract wherein the katha has been transferred into the name of Dodda Vajrappa is produced along with the written statement. Subsequently, the said Dodda Vajrappa died on 21.5.1987, pursuant to which, the katha of the said property has been transferred into the name of one Sri. Muniyellappa S/o. Dodda Vajrappa in MR No. 4/2006-07 and a copy of the 21 OS No.5682/2010-Judgment mutation register extract is produced along with the written statement. Subsequently, all the revenue documents including the RTC continued in the name of the said Muniyellappa, S/o. late Dodda Vajrappa. It is also pertinent to mention that subsequently, Muniyellappa-second defendant herein had applied for surveying the property and the Survey Authorities had surveyed the property and Blocks No. 1 and 3 as belonging to the defendant No.2 and the copies of the Survey Report and Sketch are produced along with the written statement.
27) It is further contended that the second defendant along with his family members had agreed to sell the property in favour of the first defendant earlier and received the advance amount and subsequently registered the sale deed in favour of the first defendant as per the terms agreed under the earlier agreement. The said document was registered by the second defendant along with the family members in favour of the first defendant and the same will be produced at the appropriate time. As the things stood thus, on 31.7.2010, the plaintiff along with others came near 22 OS No.5682/2010-Judgment the property belonging to these defendants and attempted to encroach and obstruct for putting up the compound wall and also threatened these defendants with dire consequences. By that time one Sri. M. Sridhar has filed a complaint before the jurisdictional police against the plaintiff's husband and others. By that time, the plaintiff along with one Sri. Jayaram Naidu and his sons produced the documents pertaining to the property of these defendants which were created for the purpose of the suit. On verification of the said documents, these defendants came to know that one Shambhappa and others had given GPA in favour of one Jayarama Naidu in respect of the property bearing Sy.No. 34 as per the registered GPA dated 24.2.1993. On the basis of the said GPA which was obtained by Jayaram Naidu for property bearing site No.1 formed out of Sy. No.34 of Sarakki Kere village, the said Jayaram Naidu had created the documents by way of two sale deeds dated 27.1.2003 of the property bearing No. 25 katha No.25 into the name of his own sons by names Sri. B. Shivaram and B. Srinivas. Copies of the alleged sale deeds are already produced by the plaintiff herself as 23 OS No.5682/2010-Judgment Documents No. 1 and 2 respectively. The recital of the said sale deeds clearly demonstrate that sy. No. 25 of Sarakki Kere village is not at all mentioned in the sale deeds. The sons of Jayarama Naidu - B Shivaram and B Srinivas had filed suits before the City Civil Judge in O.S. No. 7231/2004 and 7232/2004 against their vendors and wherein, by colluding each other, they filed compromise petition and they have mentioned that as if they have confirmed rights in respect of the property bearing sy. No. 25 of Sarakki Kere village. From these concocted and created documents, the vendors of the plaintiff have created one more sale deed in favour of the plaintiff which has been produced by the plaintiff as document No.6, wherein also it is mentioned in the schedule of document No.6 produced by the plaintiff that the property No. 25 katha No.25 of Sarakki village, Uttarahalli Hobli, Bangalore South Taluk. Admittedly, Sarakki village and Sarakki Kere village are totally different. Sarakki village is situated within the limits of J.P. Nagar I Phase and Sarakki Kere village is situated within the limits of Phase No.5 and 7 of J.P. Nagar, Bangalore. Therefore, the plaintiff has obtained 24 OS No.5682/2010-Judgment sale deed in respect of the property situated at Sarakki Village and she is claiming the rights on the property bearing sy. No. 25 of Sarakki Kere Village knowing fully well that the property bearing Sy. No. 25 measuring 1 acre 30 guntas of land in Sarakki Kere village belongs to these defendants. When things stood thus, the plaintiff as well as her vendors along with her husband colluding each other created the documents in respect of the property belonging to these defendants and on the basis of the created documents by playing fraud on the defendants attempted to harass these defendants only with a malafide intention to blackmail these defendants and extract illegally from these defendants to have wrongful gain for herself. Hence, the suit is liable to be dismissed with exemplary cost.
28) It is further contended that the averments in para 11 of the plaint that the schedule property is part of property No.25 and the plaintiff after purchasing the property on 9.8.2010, started to construct compound over the entire schedule property and at the time of construction of the compound, the defendants Nos. 1 to 3 herein along with their 25 OS No.5682/2010-Judgment henchmen interfered with the peaceful possession and enjoyment of the plaintiff's property and also tried to dispossess the plaintiff from the suit schedule property with the intention of knocking of the plaintiff's valuable property, the plaintiff with the help of her husband and well-wishers, who were present near the schedule property resisted the attempt of defendants No. 1 to 3, however, the defendant Nos.1 to 3 have vowed to come back with more men and muscle power and dispossess the plaintiff and encroach upon the plaintiff's schedule property etc. are all created story by the plaintiff and cooked up story without any basis. When the plaintiff is not at all having any possession in respect of sy. No. 25 of Sarakki Kere village and when the plaintiff is relying upon her own sale deed dated 9.8.2010, in the schedule to the said sale deed, it is mentioned as property No. 25 katha No. 25 of Sarakki village. Taking shelter under the said sale deed, the plaintiff has been attempting to interfere with the property of these defendants. That apart the photographs produced at documents No. 9 and 10 pertain to the property of these defendants, but, it does not relate to the property of 26 OS No.5682/2010-Judgment the plaintiff or her vendors. Hence, the averments made at para 11 of the plaint are denied in toto and the plaintiff is put to strict proof of the same.
29) It is contended that the averments in para 12 that after the aforesaid attempts made by defendant Nos. 1 to 3, the plaintiff made inquiries and was shocked to know that the defendant No.2 by creating bogus documents has executed a sale deed in respect of property bearing Sy. No. 25, Sarakki Kere village, Uttarahalli Hobli, Bangalore South Taluk to defendant No.1 on 23.7.2010 is also created story of the plaintiff. It is contended that when the second defendant is the absolute owner of the property along with his family members and he is having right, title, interest and ownership in respect of the property bearing sy. No. 25 of Sarakki Kere village, which was re-granted in the name of his father late Dodda Vajrappa, the question of creating documents by these defendants does not arise at all. The plaintiff knowing fully well that the land was re-granted in the name of Dodda Vajrappa, by colluding with her vendors created the documents in respect of the property belonging to these 27 OS No.5682/2010-Judgment defendants. It is submitted that the third defendant has nothing to do with the property belonging to these defendants and the plaintiff does not have any right, title much less interest in respect of the said property. The second defendant and his family members are having right, title and interest on the property by virtue of the sale deed dated 23.7.2010 as per their earlier agreement. Therefore, the question of plaintiff putting into shock does not arise at all. The averments stated in this para are all false, created, concocted and fabricated for the purpose of the suit. Hence, the entire averments and allegations are baseless and created for the purpose of the suit.
30) It is contended that the averments made in para 13 of the plaint that the purported sale deed dated 23.7.2010 under which, the defendant No.2 has sold to defendant No.1 has been kept pending for registration and the same has been referred to the District Registrar for payment of proper valuation and the stamp duty and the further averments are all created and document produced at No.11 by the plaintiff is for the purpose of the suit. It is in between the first 28 OS No.5682/2010-Judgment defendant and the District Registrar to pay the stamp duty. But, the plaintiff has nothing to do with the same. When the plaintiff has no semblance of right, title in respect of sy. No. 25 of Sarakki Kere village, she has no locus standi to challenge the same. Hence, the averments made in para 13 are created for the purpose of the suit and the same are baseless and the plaintiff is put to strict proof of the same.
31) It is contended that the averments in para 14 of the plaint that if the fourth defendant orders for registration of the pending document referred to him by the fifth defendant, then the defendants No.1 to 3 based on the registered sale deed and as per their claims made on 9.8.2010, the defendants No. 1 to 3 may take law in their own hands and forcibly dispossess and encroach upon the plaintiff schedule properties, the defendant No. 1 to 3 and their henchmen are harassing the plaintiff without having any manner of right, title or interest over the suit schedule property are all created by the plaintiff. When the plaintiff is not at all having any right, title or interest over the property of these defendants, the plaintiff is attempting to lock the 29 OS No.5682/2010-Judgment hands of the statutory authorities from discharging their duties and therefore, the attitude of the plaintiff completely demonstrates an attempt of blackmailing the statutory authorities also. The further averments of the same para are all created for the purpose of the suit and the same are denied as false.
32) It is further contended that the averments in para 15 of the plaint are all created for the purpose of the suit and to obtain mercy from the hands of this Hon'ble Court. The entire averments are hereby denied in toto. It is contended that when the plaintiff is not at all in possession of sy. No. 25 of Sarakki Kere village, the question of putting hardship to the plaintiff by these defendants does not arise at all. These defendants have got prima facie case and balance of convenience lies in their favour.
33) It is contended that the plaintiff and her alleged predecessor in the title have colluded and fabricated several documents and wrongly identified the land measuring 1 acre 30 guntas in Sy. No. 25 of Sarakkikere village, inherited by the defendant No.2 from his father Doddavajrappa who in 30 OS No.5682/2010-Judgment turn acquired the same as per the order of re-grant dated 30.12.1985 by the Tahsildar, Bangalore South Taluk and provisions of the Karnataka Land Revenue Act and the defendant No.2 sold the entire extent in favour of the defendant No.1 under the Sale Deed dated 23.07.2010 and thus, the defendant No.1 is in peaceful possession and enjoyment of the entire extent of 1 acre 30 guntas in Sy. No. 25 of Sarakkikere village. The plaintiff herein under the guise of fabricated document as also the order passed in I.A. No. 2 and 3 dated 21.1.2013, trespassed/entered upon the said schedule property which forms part of 1 acre 30 guntas in Sy. No. 25 of Sarakkikere village and put illegal construction pursuant to the temporary injunction passed and she had put up Western side compound wall and temporary shed in the suit schedule property measuring 1 1/2 to 2 squares and same is made clear in the order passed in MFA No. 1152/2013 dated 27.3.2013. As the possession of plaintiff over schedule property being subsequent to filing of the suit and order passed on I.A. No. 2 and 3 dated 21.3.2013 and put up construction on 25.1.2013, therefore, it is just and 31 OS No.5682/2010-Judgment proper for defendants No.1 and 2 to seek for recovery of possession by way of counter-claim as the cause of action for the counter-claim arose after filing of the suit more particularly on 21.1.2013 and 25.1.2013 respectively. The said act of the plaintiff being subsequent to filing of the suit and after filing of written statement by these defendants. Therefore, to avoid multiplicity of proceedings, these defendants have made a counter claim for possession in this suit as an abundant caution under Order VIII Rule 6(A) and 6(B) of CPC. In the order passed in MFA No. 1152/2013, it has been made clear that the suit property is held to be the property of defendants No.1 and 2 and the Trial Court shall pass necessary order to direct the plaintiff to deliver vacant possession of the same to the defendants No. 1 and 2. There is no cause of action for the suit. Hence, the averments made in para 16 with regard to the cause of action is also created for the purpose of the suit and hence, the entire averments of para 16 are totally false and are hereby denied and prayed to dismiss the suit with exemplary costs and to allow the counter claim.
32 OS No.5682/2010-Judgment
34) The plaintiff has filed rejoinder to the amended written statement filed by the defendants No.1 and 2, contending that the plaintiff has filed the above suit for permanent injunction restraining the defendants etc., from interfering with the suit schedule property. The Defendants 1 & 2 being the contesting defendants have appeared and contested the suit by filing the Written Statement. This Hon'ble Court has considered the Interim Application and passed the Interim Order of Temporary Injunction against the defendants. It is further submitted that thereafter the appeal was preferred before the Hon'ble High Court of Karnataka and there, the Orders passed by this court was modified. Subsequently after consuming years of time, the defendants 1 & 2 have come up with the amendment application seeking amendment of the Written Statement which came to be allowed by this Court and subsequently, the Amended Written Statement has been filed by the defendants 1 & 2 herein. Now countering the Amended Written Statement, the plaintiff is filing the Rejoinder to the Amended Written Statement.
33 OS No.5682/2010-Judgment
35) It is contended that the amended written statement filed by the defendants 1 & 2 and its averments which are incorporated as Para No: 19 (a) to 19 (c) of the Amended Written Statement are not at all maintainable either under law or on facts and hence the same is liable to be rejected and the same cannot be considered at all. The averments in Para No: 19 (a) of the Amended Written Statement that the plaintiff and her alleged predecessor in title have colluded and fabricated several documents and wrongly identified the land measuring 1 Acre 30 Guntas in Survey No: 25 of Sarakkikere Village, inherited by the defendant No. 2 from his father Doddavajrappa who in turn acquired the same as per the order of re-grant dated 30-12-1985 by the Tahsildar, Bangalore South Taluk and provisions of the Karnataka Land Revenue Act and the defendant No.2 sold the entire extent in favour of the defendant No. 1 under the Sale Deed dated 23-07-2010 and thus the defendant No.1 is in peaceful possession and enjoyment of the entire extent of 1 Acre 30 Guntas in Sy. No. 25 of Sarakkikere Village are all denied as false and the 34 OS No.5682/2010-Judgment defendants 1 & 2 are put to strict proof of the same. It is further submitted that as already admitted in his further statement that the plaintiff is in possession of the schedule property and when such is the fact, the question of accepting the above version is not possible. It is further contended that it could be seen from the averments of the plaint that the plaintiff is the first owner of the suit schedule property and the defendant No. 2 is claiming the alleged rights over the survey number by virtue of the created and fabricated documents which cannot be accepted at all. It could be seen in para No.3 of the plaint that Mr. B. Shivaram has already purchased the suit schedule property on 27-01-2003 through the Registered Sale Deed from its original owner Sri. Shambappa. The plaintiff has purchased the suit schedule property form Sri. B. Shivaram vide its registered Sale Deed dated 20-02-2010 which is also through registered conveyance. Any deed which is created thereafter in the name of the defendant No. 2 in invalid under law and the same is unlawful document which does not connect to the suit schedule property. When the ownership of the Suit 35 OS No.5682/2010-Judgment schedule property starts to flow from 2003 in the name of the predecessor in title of the plaintiff, any rights claimed by the defendant No. 2 through the alleged deed dated 23-07-2010 cannot be considered. So, entire averments made in para No.19 (a) are denied as false and the defendants 1 & 2 are put to strict proof of the same.
36) The averments in para No. 19 (b) of the Amended Written Statement that the plaintiff under the guise of fabricated document and also order passed in I.A. Nos. 2 & 3 dated 21-01-2013, trespassed/entered upon the said schedule property which forms part of 1 Acre 30 Guntas in Sy.No. 25 of Sarakkikere Village and put illegal construction pursuant to the temporary injunction passed and she had put up compound wall and temporary shed in South Western side and suit schedule property measuring 1 ½ to 2 squares and same is made clear in the order passed in MFA No. 1152/2013 dated 27-03-2013 are all denied as false. It is already pleaded that the plaintiff is the registered owner of the suit schedule property and she is in physical possession over the same exercising her right of ownership and the shed 36 OS No.5682/2010-Judgment was already in existence and it is her own property. But the claim of the defendants 1 & 2 pertaining to the suit schedule property is an afterthought and baseless.
37) It is contended that the averments in Para No.19
(c) of the amended written statement that the possession of the plaintiff over the schedule property being subsequent to filing of the suit and order passed on I.A. No.2 & 3 dated 21-03-2013 and put up construction on 25-01-2013 and therefore, it is just and proper for the defendants 1 & 2 to seek for recovery of possession by way of Counter-claim arose after filing of the suit more particularly on 21- 01-2013 and 25-01-2013 respectively and the said act of the plaintiff being subsequent to the filing of the suit and after filling of the written statement by these defendants and therefore to avoid the multiplicity of proceedings, these defendants have made the counter claim for possession in this Suit with an abundant caution and in the order passed in MFA No:
1152/2013, it has been made clear that the suit property is held to be property of the defendants 1 & 2 and the Trial Court shall pass necessary order to direct the Plaintiff to 37 OS No.5682/2010-Judgment deliver vacant possession of the same to the defendant Nos.1 & 2, are all baseless allegations which require strict proof and in total the same are denied as false. It is submitted that already it is pleaded in the plaint that she is in physical possession and the question of constructing the shed after the orders are passed as alleged in this para are hereby denied as false. In fact, it is the defendants 1 & 2 who are trying to encroach the suit schedule property on the wrong identity and wrong pretext in order to knock off the same thereby taking advantage of the fact that the plaintiff is a lady who is also not from Karnataka and came from Andhra Pradesh.
38) It is contended that much earlier to the purchase of the suit schedule property, there were other owners to the same and admittedly there is no relief claimed by the defendants 1 & 2 in their Counter Claim and unless the reliefs are claimed from them, the question of considering the Counter Statement cannot be considered at all. Without admitting the rights of the defendants 1 & 2, it is submitted that in order to recover the possession from the party, the 38 OS No.5682/2010-Judgment defendants 1 & 2 have to value their Counter Claim as per Section 29 of the Karnataka Court Fees and Suits Valuation Act and the defendants 1 & 2 have to pay the Court Fee as per the Guidance Value which comes to lakhs of rupees and the 1 & 2 have not valued the Suit as per the correct valuation and even the Court fee is not paid in accordance with the present guidance value. The Counter Claim is claimed on the wrong person because of the sole reason that the defendants 1 & 2 are not at all entitled to the same. Their alleged Counter Claim needs to be rejected on the sole ground of Non-joinder of proper and necessary parties and with this regard also, it is prayed to frame the Issue and decide the same on merits.
39) The plaintiff submits that without admitting any sort of rights of the defendants 1 & 2 over the suit schedule property, it is submitted that in order to claim the alleged Counter claim of alleged possession, the defendants 1 & 2 have not challenged the declaratory rights either seeking cancellation of Sale Deed of the Plaintiff nor her predecessors and the question of granting the alleged possession without 39 OS No.5682/2010-Judgment declaration is bad under law and the defendants 1 & 2 in order to avoid the Court Fee, have claimed the wrong reliefs.
40) Admittedly the documents which are relied by the plaintiff in the above suit are not touched by the defendants 1 & 2 and without the adjudication on the validity of the documents, the question of granting the possession to the defendants 1 & 2 barely on the simple version is impermissible under law. Hence, prayed to reject the counter claim.
41) On the above pleadings of the parties, my learned predecessor has framed the following Issues and Additional Issues :
Issue No 1: Whether the plaintiff proves her lawful possession over the suit schedule property on the date of the suit?
Issue No 2 : Whether the plaintiff further proves the alleged interference and obstructions to such of her possession and enjoyment of the suit property by the defendants 1 to 3 and their men and also the attempt 40 OS No.5682/2010-Judgment of illegal dispossession of the plaintiff from the suit property?
Issue No 3 : Whether the suit as brought against defendants 4 and 5 is not maintainable for non issuance of statutory notice under Section 80 of CPC?
Issue No 4 : Whether the plaintiff is entitled for the relief of permanent injunction as prayed?
Issue No 5 : What order or decree?
ADDITIONAL ISSUES dated 19-02-2013 Addl. Issue No 1 :Whether the suit is bad for non-
joinder of necessary parties and mis-joinder of unnecessary parties?
Addl. Issue No 2 : Whether the suit is not maintainable without seeking of the relief of declaration?
ADDITIONAL ISSUES dated 19-02-2013: Addl. Issue : 1 : Whether the defendant No.1 and 2 prove that the plaintiff and her predecessor in title have colluded and fabricated documents in respect of suit schedule property?41 OS No.5682/2010-Judgment
Addl. Issue No 2 : Whether the defendants
No.1 and 2 prove that they are
the owners of suit schedule
property?
Addl.Issue No 3 :Whether the defendants No.1 and 2 prove that under the guise of fabricated documents and order passed on IA Nos.2 and 3, dated 21.01.2013, the plaintiff trespassed into the suit schedule property and put up illegal construction of compound wall?
Addl. Issue No 4 :Whether the defendant No.1 and 2 are entitled for possession of suit schedule property as prayed in counter claim?
ADDITIONAL ISSUES dated 04-09-2023:
Addl.Issue No 5 : Whether the plaintiff proves that the counter claim for recovery of possession barred by limitation?
Addl.Issue No 6 : Whether plaintiff further proves that the defendants have not valued the court fee properly regarding the counter claim and not paid correct court fee?42 OS No.5682/2010-Judgment
42) To prove her case plaintiff herself entered into witness box as PW1 and Exs.P.1 to Ex.P.28 are got marked.
To disprove the case of the plaintiff and to defend their side, the defendant No.1 is examined as DW1 on behalf of himself and defendant No.2 and produced certain documents in the form of certified copies which were marked as Ex.D.1 to Ex.D.19. But these documents were not found subsequently and hence, on 22-06-2022 they were reconstructed with presence of the counsels of both the sides and with their acceptance for reconstruction of the same as per circular of Hon'ble High Court of Karnataka No 11/2020 dated 16-10- 2020 by further marking of the copies of the same produced by the learned counsel for plaintiff as they already obtained the certified copies of the same by considering that while initially marking of Exs.D.1 to Ex.D.19, there were no original documents only the certified copies were marked as exhibits.
43) Though the learned ADGP Sri Suresh filed memo of appearance on behalf of defendant Nos.4 and 5, but did not file their written statement, neither cross examined either PW1 or DW1 nor lead their evidence. On the other 43 OS No.5682/2010-Judgment hand, the learned counsel for the plaintiff and the learned counsel for defendant Nos.1 and 3 cross examined PW1 and DW1 each other.
44) On 01-09-2010, Sri A.S., Advocate filed vakalath for defendant Nos.1 and 3 and filed memo of undertaking to file vakalath for defendant No.2. Later, on 09-09-2010 he has filed vakalath on behalf of defendant No.2.
45) Heard the arguments, but learned counsel for the plaintiff has not taken any pain to come forward to address further arguments though provided sufficient opportunities. Perused materials placed on record.
46) The findings of this Court on the above issues are as under: -
ISSUE NO.1 : In the Negative;
ISSUE NO.2 : In the Negative;
ISSUE NO.3 : In the Affirmative;
ISSUE No.4 : In the Negative,
ISSUE No.5 : As per final order,
Addl. Issues dated 19-02-2013:
Addl.Issue No 1 : In the Affirmative;
44 OS No.5682/2010-Judgment
Addl.Issue No 2 : In the Affirmative;
Addl. Issues dated 29-01-2019:
Addl.Issue No 1 : In the Negative;
Addl.Issue No 2 : In the Negative;
Addl.Issue No 3 : In the Negative;
Addl.Issue No 4 : In the Negative;
Addl. Issues dated 04-09-2023:
Addl.Issue No 5 : In the Affirmative;
Addl.Issue No 6 : In the Affirmative;
For the following;
REASONS
47) ISSUE Nos.1 and 2, Additional Issue No 2
dated 19-02-2013 :
These three issues are inter-connected to each other, hence to avoid repeated discussions, they are taken up together here under;
48) As narrated above, admittedly, this suit is filed for the relief of permanent injunction against defendant Nos.1 to 3, their legal heirs, agents, servants, attorneys, henchmen, 45 OS No.5682/2010-Judgment executors or any person/s claiming through or under them etc., from interfering with the peaceful possession and enjoyment of the suit schedule property by plaintiff and dispossessing the plaintiff in any manner whatsoever from the suit schedule property.
49) On the other hand, on 31-08-2018, the written statement of defendant Nos.1 and 2 was amended, through which, counter claim with prayer for judgment and decree for recovery of possession against the plaintiff in respect of the suit schedule property was prayed.
50) Firstly, this Court gone through the pleadings of both sides in plaint and written statement. According to the plaintiff, as per paragraph 7 of the plaint, she has purchased the North Eastern portion of property bearing Site No.25, formed out of property No.25, Sarakki Kere Village, Uttarahalli Hobli, Bangalore South Taluk measuring East to West 50 feet and North to South 60 feet in all measuring 3000 sq.ft., through a registered Sale Deed dated 20-02-2010. She has produced the original of Sale Deed dated 20-02-2010 which is marked as Ex.P.4 which shows 46 OS No.5682/2010-Judgment that the plaintiff has purchased property from Sri. Shivaram for the sale consideration amount of Rs.24,00,000/-. In the schedule in Ex.P. 4, the property which is purchased by the plaintiff is shown as;
"All that piece and parcel of North Eastern por- tion of (Eastern Half portion of) the Property bearing Site No.1, CMC Kahta No.25, situated at Sarakki Village, Uttarahalli Hobli, Bangalore South, measuring East to West 50 Feet and North to South 60 Feet in all measuring 3000 Square Feet, and bounded on;
EAST BY : Road
WEST BY: Property belonging to B.Srinivas
NORTHY BY : Road
SOUTH BY : Remaining portion of same prop-
erty belonging to VENDOR Shivaram"
51) Though in paragraph 7 of the plaint, it is shown as 'Site No 25', but in the plaint schedule, it is shown as 'Site No
1.' But surprising point is in original plaint where, in its schedule, the village of suit schedule property is shown as "Sarakki Village" but later on 15-03-2011, it was amended as "Sarakki Kere Village." But Ex.P.4 shows the village name as "Sarakki Village." Then question that arises in the mind of 47 OS No.5682/2010-Judgment the Court is if the plaintiff had purchased the property in "Sarakki Village" as per Ex.P.4, then why she has amended it in the plaint as "Sarakkikere Village" after nearly one year from the filing of this suit which is filed on the basis of Ex.P. 4.
52) In paragraphs 3 to 6 of the plaint, she has narrated about the flow of transaction of the suit schedule property prior to purchase by the plaintiff. In the entire Site No.1 of property No.25, khatha No.25, situated at Sarakki Kere Village, Uttarahalli Hobli, the Eastern half portion was purchased by B. Shivaram vide Sale Deed dated 27-01-2003.
In support of the same, the plaintiff has produced the Certified Copy of Sale Ddeed dated 27-01-2003 which is marked as Ex.P. 1 through which Sri Shambappa along with Venkatesh alias Vajrappa, Muniyellapa, Venkatesh and Ramakrishna sold the document schedule property to B. Shivaram through their GPA holder B. Jayarama Naidu. In the array of sellers, Venkatesh alias Vajrappa, Muniyellapa, Venkatesh and Ramakrishna are mentioned as sons of Shambappa. But there is mention about name of Venkatesh 48 OS No.5682/2010-Judgment as Venkatesh alias Vajrappa and Venkatesh as sons of Shambappa. But there is no recital about whether both are same persons or separate persons, since it is difficult to accept that two persons of same name are sons of one Shambappa. The schedule property in Ex.P 1 is show as;
"All that piece and parcel of Eastern Half portion of property bearing Site No.1/Katha No.25, situ- ated at Sarakkikere Village, Uttarahalli Hobli, Bangalore South Taluk, measuring East to West 50'-0" feet, North to South 133-0 feet on Eastern side and 127-5 feet on Western side, and bounded as follows:
On the East by : Road;
On the West by: Remaining portion of the
same property today sold to Sri. B. Srinivas;
On the North by : Road;
On the South by: Private Property."
53) The elder brother of B. Shivaram namely B. Srini-
vasa had purchased the Western half portion of above prop- erty vide sale deed dated 27-01-2003. The said sale deed is marked as Ex.P.2. The vendors and GPA holder of vendors are same as in Ex.P.1. The schedule property in Ex.P.2 men- tioned as;49 OS No.5682/2010-Judgment
"All that piece and parcel of Western Half por- tion of property bearing Site No.1/Katha No.25, situated at Sarakkikere Village, Uttarahalli Hobli, Bangalore South Taluk, measuring East to West 50'-0" feet, North to South 133-0 feet on Eastern side and 127-5 feet on Western side, and bounded as follows:
On the East by : Remaining portion of the same property today sold to Sri. B. Shivaram On the West by : Road On the North by : Road On the South by : Private Property.
Important to note that in this sale deed, the village in which the property situated is mentioned as 'Sarakkikere vil- lage.'
54) In paragraph 5 of the plaint, it is stated that after execution of above two sale deeds, the children of predeces-
sor in title that is children of Late Shambappa interfered with the above referred properties and due to the same B. Srini- vas and B. Shivaram filed O. S. No.7231/2004 and O.S. No. 7232/2004 against Munyiyellappa and others and the said suit came to be compromised on 08-06-2009 in CCH-7. But there are no documents produced pertaining to these two 50 OS No.5682/2010-Judgment cases. But it is stated by the plaintiff that as per settlement among Muniyellappa along with other family members, a Registered Confirmation Deed dated 05-08-2009 was exe- cuted by ratifying the acts and confirming the ownership of Sri B. Srinivas and Sri B. Shivram. It is marked as Ex.P 3.
55) This court gone through the said Confirmation Deed dated 03-08-2009 that is Ex.P. 3. In this document, the first parties that is the confirming parties are 18 in number such as 1) Smt.Lakshmamma W/o. Gopala, 2) Smt.Kan- thamma, W/o. Venkataswamy, 3) Smt.Susheelamma, W/o. Late Venkatesh @ Vajrappa, 4) Smt.V. Renukamma, W/o. Suresh. 5) Sri.V.Mohan, S/o. late Venkatesh @ Vajrappa, 6) Sri.V.Manjunath, S/o. Venkatesh @ Vajrappa, 7) Sri. M.Rame- sha, S/o. S.Muniyellappa, 8) Smt.Ballamma, W/o. late Sham- bappa, 9) Sri.S.Muniyellappa, S/o. Shambappa, 10) Sri.S. Venkatesh, S/o. Shambappa, 11) Smt.V. Renuka, W/o. Nataraj, 12) Smt.V.Prema, D/o. Venkatesh 13) Sri.V,Shiva, S/ o. Venkatesh, 14) Srt.Ramakrishna, S/o. late Shambappa, 15) Smt.Nethravathi, D/o. Ramakrishna 16) Smt.Deepa, D/o. Ra- makrishna, 17) Sri.Manikantha, S/o. Ramakrishna and 18). 51 OS No.5682/2010-Judgment Narayanamma D/o. Muniyellappa. They executed the said Confirmation deed in favour of B. Srinivas and B. Shivaram. On comparing the same with Ex.P 1, Ex.P. 2 and Ex.P.4, the following points emerge in connection to the present issues in this case, In Ex.P.1 and Ex.P.2, Shambappa and his four children executed a GPA in favour of one B. Jayarama Naidu, S/o. Gurappa Naidu. Nowhere in Ex.P.1 and Ex.P.2, the date of execution of GPA is mentioned. Moreover the document of said GPA has not been produced. The purchasers in Ex.P.1 and Ex.P.2 were B. Shivaram and B. Srinivasa respectively who were none other than one of the sons of GPA holder B. Jayarama Naidu.
In Ex.P.3 the said Confirmation deed executed by above 18 members in favour of B. Srinivas and B. Shivaram. In page No.3 of Ex.P.3 it is mentioned as Sri Shambappa along with his four children had executed a registered GPA in favour of Sri B. Jayaram Naidu S/o. Gurappa Naidu registered as Document No 1054/1992-93 dated 24-02- 1993 in respect of suit schedule property. But in Ex.P.1 and Ex.P.2, there are no recitals about the details of GPA. Next to that in page No.5 of Ex.P.3 in paragraph 3, it is stated as, "Whereas the First Parties herein admit and acknowledge that all the acts done by some of the First Parties General Power of Attorney holder Sri Jayaram 52 OS No.5682/2010-Judgment Naidu are hereby ratified and the same has been done with full consent and concurrence of the First Parties. The G.P.A., executed by some of the First Parties in favour of Sri Jayaram Naidu is still subsisting." But the document of said GPA and the title deeds of plaintiff's vendor's vendor that is Shambappa and his family has not been produced by the plaintiff before this Court.
In page No.5 of Ex.P.3, in paragraph 1, it is stated that the said Jayaram Naidu has sold the schedule property in two portions under registered sale deeds registered as Doc. No. 22774/2002-03 and Doc.No. 22727/2002-03 dated 04-02-2003. But as per Ex.P.1 and Ex.P.2, the date of execution of both the sale deeds is 27-01-2003 and in the seal of registered office in the said documents also reflects the date as 27-01-2003 and not the date 04-02-2003. In plaint paragraph 3 and 4 also the date of said sale deeds is mentioned as 27-01-2003.
Surprising point in Ex.P.3 is the schedule of the property is mentioned as the whole property in site No.1 and not given the schedule of Ex.P.1 and Ex.P.2. The schedule in Ex.P 3 is;
"All that piece and parcel of property bearing Site No.1 formed out of Property No.25, Katha No.25, situated at Sarakki Kere Village, Uttarahalli Hobli, Bangalore South Talk, Measuring East to West 105 feet, North to South 133 + 122/2 Feet and bounded on;53 OS No.5682/2010-Judgment
East by : Road;
West by : Road;
North by : Road;
South by : Private property."
But there are no documents produced to show that the plaintiff's vendor's vendor Shambappa had the ancestral property which is mentioned in Ex.P 3. Further, in this Ex.P.3, it is stated that the Confirmation Deed pertaining to Sale Deeds dated 04-02-2003 and GPA dated 24-02-1993 and not the sale deeds dated 27-01-2003. In plaint paragraph 6, the Deed of Confirmation is dated as 05-08-2009, but in Ex.P.3, the date of Deed of Confirma- tion and date of its registration is shown as 03-08-2009. Though the plaintiff has subsequently amended the name of village in plaint schedule as "Sarakki Kere", but no pain is taken for amendment of the dates of deeds which creates cloud of doubts in the mind of the court. Now, this Court perused Ex.P 4 which is the latter trans- action after execution of Exs.P.1, Ex.P.2 and Ex.P.3. This Ex.P.4 is the title deed of the plaintiff. As per this docu- ment. it is alleged that the plaintiff has purchased the suit schedule property from B. Shivaram. It is the North Eastern Portion of the property in Ex.P.1. But in this doc- ument, the village is mentioned as "Sarakki Village". But no document of rectification deed is produced and 54 OS No.5682/2010-Judgment marked, but the plaintiff amended the schedule in the plaint by entering the name of village as "Sarakki Kere village" in the place of "Sarakki village."
56) Though, this court may presume it as the said name of village entered erroneously, but as the suit is for permanent injunction against the defendants, wherein, the plaintiff mainly has to prove her lawful possession over the suit schedule property and unlawful interference of defen- dants over her lawful possession over the suit schedule prop- erty which is clearly described with guidelines by Hon'ble Supreme Court of India in the case of Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors on 25 March, 2008 CASE NO.: Appeal (civil) 6191 of 2001 as;
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential in-
junction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an 55 OS No.5682/2010-Judgment interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substan- tially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [ei- ther specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding ti- tle are absent in a plaint and where there is no is- sue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are neces- sary pleadings and issue, if the matter involves complicated questions of fact and law relating to ti- tle, the court will relegate the parties to the rem- edy by way of comprehensive suit for declaration of 56 OS No.5682/2010-Judgment title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may de- cide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be de- cided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cum- bersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his prop- erty. The court should use its discretion carefully to identify cases where it will inquire into title and cases where it will refer to plaintiff to a more com- prehensive declaratory suit, depending upon the facts of the case."
57) In this case, the plaintiff has prayed for the relief of permanent injunction by stating that she is in actual and physical possession of the suit schedule property from the date of purchase of suit schedule property as stated in paragraph 9 of the plaint. In paragraphs 9 to 11 of the plaint, 57 OS No.5682/2010-Judgment it is narrated about plaintiff's physical possession after her purchase of suit schedule property and about the interference of defendant Nos.1 to 3 over her possession of the suit schedule property as;
"9) The plaintiff submits from the date of purchase of schedule property, the plaintiff has been in actual physical possession of the schedule property exercising thereon all rights of absolute ownership.
10) The Plaintiff submits that this being the actual facts, the Defendant Nos.1 to 3 herein who are strangers to the Suit Schedule Property have created documents and are claiming ownership of the Schedule Property and the entire extent of land in Sy.No.25 of Sarakki Kere Village, Uttarahalli Hobli, Bangalore South Taluk, measuring 1 Acre 30 Guntas, which was originally in the name of Shambappa.
11) The Plaintiff submits that the Schedule Property is part of property No.25 and the Plaintiff after purchasing the property on 09-08-2010 started to construct compound over the entire Schedule Property. At the time of construction of the compound, the Defendant Nos.1 to 3 herein along with their henchmen interfered with the peaceful possession and enjoyment of the Plaintiffs 58 OS No.5682/2010-Judgment property and also tried to dispossess the Plaintiff from the Suit Schedule Property with the intention of knocking of the Plaintiff's valuable property, the Plaintiff with the help of her husband and well-wishers, who were present near the Schedule Property resisted the Defendant No. 1 to 3 attempt.
However the Defendant No. 1 to 3 have vowed to come back with more men and muscle power and dispossess the Plaintiff and encroach upon the Plaintiff's schedule property."
58. Though the plaintiff has stated that she has pro- duced the photographs to show such interference of defen- dants No.1 to 3, but no such photographs are produced and marked as exhibits. There are no documents produced by the plaintiff to show her physical possession, such as electricity bills, water bills, ration card and documents of telephone con- nection and LPG gas connections etc.
59. The plaintiff herein prays for the relief of perma- nent injunction on the basis of her title, but there is no prayer by the plaintiff to declare her absolute ownership over the suit schedule property.
59 OS No.5682/2010-Judgment
60. Other documents produced by the plaintiff are; Ex.P.5 is the receipt of rent paid by the plaintiff for the year 2010 and 2011 dated 16-06-2010. Ex.P.6 is the Form B ex- tract for the year 2010-2011 issued on 21-06-2010 which shows the name the plaintiff as the owner and occupier in re- spect of property No.25/1 in 3rd main, Astalakshmi Layout of Ward No.186 of Jaraganahalli, Sarakki kere Village. But the address of the plaintiff in the cause title of the plaint is shown as Residing at No 15-204, K. N. Road, Puttur, Andrapradesh now having come to Bangalore. Then plaintiff in her pleading itself made contra on her own possession over the suit schedule property. Plaintiff miserably failed in proving the contents of paragraph 9 of the plaint that 'from the date of purchase of schedule property, the plaintiff has been in ac- tual physical possession of the schedule property exercising thereon all rights of absolute ownership."
61. Ex.P 7 is the copy of letter dated 10-08-2010 writ- ten by plaintiff to the District Registrar seeking to reject the pending registration of document vide No 3449/2010-11, dated 23-07-2010 referred to his office by Sub Registrar, J P 60 OS No.5682/2010-Judgment Nagar Bangalore in respect of property bearing No.25 of Sarakki Kere village. In paragraph 6 of Ex.P.7 it is noted that the said document is the document of sale deed of Ashwath and Muniyellappa that is defendant Nos.1 and 2 herein by contending as "she (plaintiff) came to know from reliable sources that these defendant Nos.1 and 2 by creating bogus document and by representing that the entire land of Sy.No. 25 of Sarakki Kere village is agricultural land and have sub- mitted the document for registration and the said document has been kept pending for registration."
62. In paragraph 12 to 13 of the plaint, there is a nar- ration regarding the above as;
"12). The Plaintiff submits that after the aforesaid attempts made by defendant No.1 to 3, the pPlain-
tiff made inquiries and was shocked to know that the defendant No.2 by creating bogus documents has executed a Sale Deed in respect of Property bearing Sy.No.25. Sarakki Kere Village, Uttarahalli Hobli, Bangalore South Taluk to defendant No.1 on 23-07-2010 in the office of the Sub-Registrar, J.P.- Nagar, Bangalore Pending Doc.No.3449/2010-11. The Plaintiff was further shocked to see that though independent houses have been constructed in the 61 OS No.5682/2010-Judgment entire Sy.No.25, measuring 1 Acre 30 Guntas, the defendant No.1 has sold the property bearing Sy.No.25 claiming it as Agricultural land, when the entire area has come within the limits of BBMP, erstwhile Bommanahalli CMC in the year 1999. The Municipal authorities have put cement roads and have given water connection and other amenities to the entire property.
13) The Plaintiff submits that the purported Sale Deed dated 23-07-2010 under which, the defen- dant No.2 has sold to defendant No.1 has been kept pending for registration and the same has been referred to the District Registrar. The plaintiff after coming to know the above said facts on 10-08-2010 has given a representation to the District Registrar i.e. the Fourth Defendant herein, to reject the Pending Registration Document re- ferred to him by the Fifth Defendant in respect of property bearing Sy.No.25, Sarakki Kere Village, Bangalore, measuring 1 Acre 30 Guntas."
63. The above pleadings of the plaintiff run contrary to the pleading made by herself in paragraph 9 of the plaint about her physical possession. In paragraph 11 of the plaint, she has stated that she is in physical possession over the suit schedule property from the date of her purchase. But in para- 62 OS No.5682/2010-Judgment graph 12, she has stated that she was shocked to see that the independent houses have been constructed in the entire Sy.No 25 measuring 1 acre 30 guntas. Then where her house lies in Sy.No.25 as claimed by her is not disclosed by her. If she is in physical possession from the date of sale deed in suit schedule property that is portion of site No.1 in the suit schedule property, then how she would come to know about such a number of independent houses in her surroundings only after alleged interference of defendant Nos.1 to 3. Though she wrote a letter to defendant No.4 to reject the registration of the sale deeds of defendant Nos.1 and 2 in Ex.P.7, but there is no such prayer in this plaint though she made the District Registrar and the Sub Registrar as parties to this suit as defendant Nos.4 and 5.
64. Exs.P.8 to 10 are the tax paid receipts by the plaintiff pertaining to suit schedule property, but it is well- known that they are not the conclusive proof for possession and title over the property.
65. Ex.P 11 is the acknowledgment by J P Nagar Police Station regarding complaint lodged by the plaintiff against 63 OS No.5682/2010-Judgment Gurudev (defendant No.3 herein), Sridhar( not party to this suit) and Ashwath (defendant No.1 herein), but the plaintiff has not produced any documents to show such interference by the defendant Nos.1 and 3.
66. Ex.P.12 is the certified copy of plaint in O.S.No. 9056/2011 which is filed by M. Sridhara S/o. K. Muniyappa and Srinvasa S/. Vekatesh against 17 defendants pertaining to Site No.1 formed out of Sy.No.25 situated at Sarakki kere village with total measurement of 10868 sq.ft., in the said suit, Sri Muniyallappa (defendant No.2 herein), B. Jayaram Naidu (alleged GPA holder herein) B. Srinvas ( the purchaser in Ex.P.2 herein), B. Shivaram (vendor of the plaintiff herein) L. Revathi (plaintiff herein) are made as defendant Nos.1, 8 to 11 respectively. In that case, it is prayed for direction to defendant Nos.1 to 7 to execute the registered absolute sale deed by accepting balance sale consideration amount in terms of the registered sale agreement dated 26-04-2006. In the second prayer, it is prayed to declare the documents are being created by defendant No 1 to 16 and as concocted and void documents, that means the documents produced here in 64 OS No.5682/2010-Judgment this case by the plaintiff and defendant No.1 are in controversy as they are created documents. It is also noted that this case is filed in the year 2010 and that case is filed in 2011. If we compare the schedule in Ex.P.3, the Confirmation Deed and plaint schedule property in Ex.P.12 are pertaining to whole site No.1 in Sy.No/Property No.25 of Sarakki Kere Village. Though we cannot conclude the case on the basis of Ex.P.12 as it is just a plaint of that case in O.S.No.9056/2011 wherein its documents of evidence or judgment of that case has not been produced. But it is marked through confronta- tion to DW 1 as he agreed about filing of that case in his cross examination. In the said suit, the plaintiff and defen- dant No.2 herein are the defendant No.1 and defendant No.11 respectively. The children of defendant No.2 herein and B. Jayaram Naidu (GPA holder in this case), B. Srinivas and B. Shivaram ( vendor of plaintiff in this case) are also de- fendants. The plaint schedule property in Ex.P. 12 is;
"All that piece and parcel of the property Site No.1, formed out of Sy.No.25 situated at Sarakkikere, Uttarahalli Hobli, Puttenahalli Main road, J.P.Nagar 6th Phase, Bangalore-78 measur- 65 OS No.5682/2010-Judgment ing East to West 105 feet on the Northern Side and 103 feet on the Southern Side and North to South 119 feet on the Eastern Side and 90 feet on the Western Side totally measuring 10868 sq.ft and is bounded on :
East by : Road;
West by : Road and Puttenahalli main road; North by : Puttenahalli Main road; South by : Remaining portion of Sy.No 25."
67. Though the plaintiff has not produced any docu- ments to show her possession over the suit schedule prop- erty. but she has produced certified copies of different sale deeds pertaining to different property No.in Sy.No 25 of Sarakki Kere village which are marked as Exs.P.12 to Ex.P.28.
68. The previously discussed Ex.P.12 ie., the certified copy of plaint in OS No.9056/2011 is marked through con- frontation to DW1 1 in his cross examination. By oversight Es.P.12 is marked twice to different documents. The Sale Deed is also marked as Ex.P.12.
69. Exs.P.12 to Ex.P.28 are the certified copies of sale deeds pertaining to different sites in Sy.No.25 of Sarakki Kere village. In these documents, Ex.P.12 Sale Deed dated 06-04- 66 OS No.5682/2010-Judgment 1998, Ex.P.13 Sale Deed dated 15-04-1998, Ex.P.14 Sale Deed dated 13-12-1999, Ex.P.16 Sale Deed dated 22-09- 2000, Ex.P.17 Sale Deed dated 05-10-2000, Ex.P.18 Sale Deed dated 13-10-2000, Ex.P.20 Sale Deed dated 26-12- 2001, Ex.P.21 Sale Deed dated 19-04-2002, Ex.P.22 Sale Deed dated 19-04-2002, Ex.P.25 Sale Deed dated 25-07- 2003, Ex.P. Sale Deed dated 11-02-2000 and Ex.P 28 Sale Deed dated 19-09-2002 are executed by Smt. Bellamma and others who are the wife and children of Late Shambappa. But the said sale deeds are executed without GPA. Ex.P 15 is the Sale Deed dated 28-01-2000 and Ex.P 24 is the Sale deed dated 25-09-2002 executed by some of the children of Shambappa. Ex.P.26 is executed by one M. R. Lingaraju, S/o. Ramaraju. In Ex.P.23, the Sale Deed dated 25-09-2002, it was executed by GPA holder of Shambappa namely C. R. Sampathkumari. But GPA is not furnished. In this document, in its page No. 3, it is noted as the ownership attained by its vendor through judgment and decree in OS No 2783/1997. In Ex.P.19, the sale deed executed by S. Venkatesh, S/o. Late Shambappa, in this document there is 67 OS No.5682/2010-Judgment a mention of WILL executed by Shambappa in favour of its vendor.
70. But these sale deeds will not lend support to the plaintiff as discussed supra that plaintiff has not produced the GPA executed to Jayarama Naidu by Shambappa and title deed of Shambappa, the vendor's vendor. There is no en- cumbrance certificate produced by the plaintiff to show the flow of transaction showing the ownership and possession of Shambappa till her sale deed dated 20-02-2010 that is Ex.P. 4.
71. Moreover, though plaintiff has stated that from the date of her sale deed, she is in physical possession of property, but she has not produced a single document to establish her possession over the suit schedule property. Moreover, in the cause title of the plaint, she has given the address of Andra Pradesh and mentioned as "now having come to Bangalore", but there is no address of residence in Bangalore mentioned.
72. Regarding interference of the defendants over the suit schedule property is concerned, the plaintiff has 68 OS No.5682/2010-Judgment produced copy of Acknowledgment dated 30-06-2013 issued by J. P. Nagar Police station in which the complaint is lodged by the plaintiff against Gurudev, Sridhar and others about the threat by coming to site No.1 in Sy.No.25. But the said Sridhar is not a defendant in this case. As per Ex.P.11, the date of complaint is 30-06-2013. But as per paragraph No.16 of the plaint, the cause of action arose on 09-08-2010, alleg- ing that defendant Nos.1 to 3 tried to interfere and dispossess the plaintiff from suit schedule property. But no documents are produced by the plaintiff to show the cause of action of this case. Though Ex.P.11 shows the name of trespasser Sridhar, but plaintiff has not made him as party to the suit.
73. Moreover, in paragraph 11 of the plaint, she has stated that she started construction of compound wall to the entire suit schedule property on 09-08-2010, but she has not produced any documents or photographs of such construction of compound wall.
74. When the plaintiff is claiming possession by way of title ,when she is not in physical possession of property 69 OS No.5682/2010-Judgment and if she has relied upon her title deed that is Ex.P.4 without producing the document pertaining to her possession over the suit schedule property, then she has to pray for the declaration of her ownership and title as per above mentioned Anathula Sudhakar vs Buchchi Reddy case. But plaintiff failed to do so. She has not taken the date of her sale deed as cause of action and did not pray for declaration of her ownership and it is a bare suit for permanent injunction, wherein she utterly failed to prove her possession and enjoyment of suit schedule property and failed to prove the interference of defendants Nos.1 to 3 over the suit schedule property.
75. Now, this Court gone through the cross examina- tion of PW 1 in which there is a contra elicited against her case. In page No.16, paragraph 2, she has stated that, "ಶಾಂಬಪ್ಪ ರವರು ಜಯರಾಮನಾಯ್ಡು ರವರಿಗೆ ಜಿಪಿಎ ಮಾಡಿಕೊಟ್ಟಿದ್ದಾರೆ. ಆ ಜಿಪಿಎ ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಹಾಜರುಪಡಿಸಿಲ್ಲ . ಸದರಿ ಶಾಂಬಪ್ಪ ರವರು ಜಯರಾಂನಾಯ್ಡು ರವರಿಗೆ ಸರ್ವೆ ನಂ.25 ಕ್ಕೆ ಸಂಬಂಧಪಟ್ಟಂತೆ ಯಾವುದೇ ಜಿಪಿಎ ಬರೆದುಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ , ಸದರಿ ಶಾಂಬಪ್ಪ ರವರಿಗೆ ಮತ್ತು ಸರ್ವೆ ನಂ. 25 ಕ್ಕೂ ಯಾವುದೇ ಸಂಬಂಧ ಇಲ್ಲ ಹಾಗಾಗಿ 70 OS No.5682/2010-Judgment ಅವರು ಆ ಪತ್ರ ಬರೆದುಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ ." As already discussed above there is no such GPA produced by the plaintiff.
76. Further, in page No.23 the PW1 stated as"ನಿಪಿ1 ರಲ್ಲಿ ಹೇಳಿರುವ ಜಯರಾಮನಾಯ್ಡು ರವರಿಗೆ ಕೊಟ್ಟಂತಹ ಜಿಪಿಎ ದಾಖಲೆಯು ನನ್ನ ಲ್ಲಿ ಇದೆ. ದರಿ ಜಿಪಿಎ ದಾಖಲೆಯನ್ನು ನಾನು ನ್ಯಾಯಾಲಯಕ್ಕೆ ಸಲ್ಲಿಸಿಲ್ಲ . ಜಿಪಿಎ ಯನ್ನು ಶಂಭಪ್ಪ ಅವರು ಜಯರಾಮ ನಾಯ್ಡು ರವರಿಗೆ ಕೊಟ್ಟಿರುವುದು ಸರ್ವೆ ನಂ.34 ಕ್ಕೆ ಎಂದರೆ ಸಾಕ್ಷಿಯು ಸರ್ವೆ ನಂ. 25 ಕ್ಕೆ ಕೊಟ್ಟಿದ್ದಾರೆ ಎನ್ನು ತ್ತಾರೆ. ಜಿಪಿಎ ಯಲ್ಲಿ ಸರ್ವೆ ನಂ. 34 ಎಂದು ಇರುವುದರಿಂದ ಉದ್ದೇಶಪೂರ್ವಕವಾಗಿ ಸದರಿ ಜಿಪಿಎ ಯನ್ನು ನ್ಯಾಯಾಲಯಕ್ಕೆ ನಾನು ಕೊಟ್ಟಿಲ್ಲ ಎಂದರೆ ನಮ್ಮ ವಕೀಲರು ಕೇಳಲಿಲ್ಲ ಅದಕ್ಕೆ ನಾನು ಕೊಡಲಿಲ್ಲ ಎನ್ನು ತ್ತಾರೆ."
77. Next to that in page 24, paragraph No.4, she has stated as; " ದಾವಾ ಸ್ವ ತ್ತಿನ ಸಂಖ್ಯೆ ಸೈಟ್ ನಂಬರ್ 1, ಸರ್ವೆ ನಂಬರ್ 25. ಸೈಟ್ ನಂಬರ್ 1 ಕ್ಕೆ ಸಂಬಂಧಿಸಿದ ಸಾಂಕ್ಷನ್ ಪ್ಲಾನ್ ನನ್ನ ಲ್ಲಿ ಇದೆ. ಸದರಿ ಪ್ಲಾನನ್ನು ನಾನು ನ್ಯಾಯಾಲಯಕ್ಕೆ ಕೊಟ್ಟಿಲ್ಲ . ಪ್ಲಾನನ್ನು ಕೊಡಲು ಏನಾದರೂ ಕಾರಣ ಇತ್ತೇ ಎಂದರೆ ನನ್ನ ನ್ನು ಯಾರೂ ಕೇಳಲಿಲ್ಲ . ಸದರಿ ಪ್ಲಾನನ್ನು ನ್ಯಾಯಾಲಯಕ್ಕೆ ಈಗ ಕೊಡಬಹುದೇ ಎಂದರೆ ಕೊಡುತ್ತೕೆನೆ. ಅಂತಹ ಪ್ಲಾನ್ ಮಾಡಿಯೇ ಇಲ್ಲ ಹಾಗಾಗಿ ನ್ಯಾಯಾಲಯಕ್ಕೆ ಸುಳ್ಳು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ." but she has not produced such plan. Therefore, as per the facts ad circumstances of the case and above discussions, the plaintiff has failed to prove 71 OS No.5682/2010-Judgment her physical possession and enjoyment over the suit sched- ule property.
78. Hence this Court answers Issue Nos. 1 and 2 in the NEGATIVE and additional Issue No.2 dated 19-02- 2013 in the AFFIRMATIVE.
79. Issue No 3 and Addl.Issue No.1 dated 19-02- 2013 :
These two issues are interlinked to each other, hence taken up together for discussion.
80. There is no prayer against defendant Nos.4 and 5 who are the government authorities. In paragraphs 12 and 13 of the plaint, it is stated and alleged that by creating bogus documents, the defendant No.2 sold the suit schedule property to defendant No.1 on 23-07-2010 and the purported Sale Deed dated 23-07-2010 under which, the Defendant No.2 has sold to Defendant No.1 has been kept pending for registration and the same has been referred to the District Registrar. The Plaintiff after coming to know the about the said facts on 10-08-2010, has given a representation to the District Registrar i.e. the Fourth Defendant herein, to reject 72 OS No.5682/2010-Judgment the Pending Registration Document referred to him by the Fifth Defendant in respect of property bearing Sy.No.25, Sarakki Kere Village, Bangalore, measuring 1 Acre 30 Guntas. Though the copy of said representation/letter dated 10-08-2010 sent by this plaintiff to 5 th defendant and marked as Ex.P.7, but there is no prayer regarding the same in the plaint.
81. Without any prayer and claim against defendant Nos.4 and 5, this plaintiff unnecessarily made them as parties to this suit though they are not necessary and proper parties to this suit which will cause hindrance to their official work and wasting of time of such government officials. More- over, plaintiff has not sent 60 days prior notice to these defendants under Section 80 of CPC and no such documents regarding issuance statutory notice to defendant Nos.4 and 5 is produced. As per materials on record, the plaintiff has filed IA No.1 under Section 80(2) of CPC seeking dispensation of issuance of prior notice to defendant Nos.4 and 5. But, the 'NIL' prayer against these defendants in the plaint shows that there is no such urgency to the plaintiff to file this case 73 OS No.5682/2010-Judgment against them without prior notice. Hence, definitely, this plaintiff is in default to comply mandatory Section 80 of CPC while filing the suit against Government authorities. Hence, this suit is not maintainable against defendant Nos.4 and 5.
82. In page No.17 paragraph 4 of her cross examina- tion PW 1 stated that, "ಸದರಿ ಪ್ರತಿವಾದಿ 4 ಮತ್ತು 5 ರವರು ಒಂದನೇ ಪ್ರತಿವಾದಿಯ ಹೆಸರಿನಲ್ಲೇ ದಾಖಲೆಗಳನ್ನು ಫೋರ್ಜರಿ ಮಾಡಿದ್ದ ರಿಂದ ಅವರನ್ನು ಪಕ್ಷಗಾರರಾಗಿ ಮಾಡಿದ್ದೕೆನೆ. ಸದರಿ ಪ್ರತಿವಾದಿ 4 ಮತ್ತು 5 ರವರು ಯಾವುದೇ ದಾಖಲೆಗಳನ್ನು ಫೋರ್ಜರಿ ಮಾಡಿಲ್ಲ ."
83. Moreover, as discussed in Issue Nos.1, 2 and Addi- tional issue No 2 dated 19-02-2013, though there is the name of one Sridhar as trespasser to suit schedule property, though the said Ex.P.11 is subsequent event as per date of acknowledgment, but the said person has not been made as party to this suit. Further, as per Ex.D.15, the said Vajrappa the vendor No.4 in Ex.D.1 is the complainant regarding cause of action to counter claim, but the defendant Nos.1 and 2 have not made him as party to the suit and both the sides did not take any pain to bring the necessary parties to this suit, who are connected to suit schedule property who are 74 OS No.5682/2010-Judgment parties in Ex.P.12. Though defendant Nos.4 and 5 are not necessary and proper parties to this suit, but they are mis-joined to this case hence, the case of the plaintiff is bad for non-joinder of necessary party and mis-joinder of unnecessary parties, accordingly, this Court answers Issue No.3 in the Affirmative and Addl. Issue No.1 dated 19- 02-2013 in the Affirmative.
84. Addl. Issue Nos.1 to 4 dated 29-01-2019 :
These four issues are interlinked to each other hence taken up together for discussion as here under; While filing of written statement by defendant Nos.1 and 2, there was no counter claim against the plaintiff, but on 31-08-2018, the amendment in the written statement was carried out and inserted paragraph No.19(a) to (c) and counter claim with prayer that to pass a judgment and decree for recovery of possession against the plaintiff in re- spect of suit schedule property by allowing the counter claim, was prayed.
85. First of all, as per negative answer to Issue Nos.1 and 2, the plaintiff has failed to prove her possession over 75 OS No.5682/2010-Judgment the suit schedule property. On the basis of the same, this counter claim becomes infructuous as the possession of plaintiff over the suit schedule property is not proved by her. Then handing over the possession of suit schedule property to these defendants by her does not arise. Further, there is no other property mentioned in the counter claim than that of the schedule property mentioned in the plaint.
86. Moreover, though in the verifying affidavit to this written statement and counter claim as per paragraph 1 of the affidavit it is stated as "I submit that I am the 1st defendant in the above case and I am fully conversant with the facts of the case and Defendant No.2 being my vendor has autho- rized me to swear to the contents of this affidavit and hence, I am swearing to the contents of this affidavit on my behalf and also on behalf of the 2 nd defendant as I am authorized to do so."
But though vakalath filed for both the defendants No 1 and 2 and in the written statement verification it is stated as;
76 OS No.5682/2010-Judgment
"We, (1) M.Ashwath and (2) Muniyellappa, the defendants No. and 2 in the above case, do hereby state and declare that what is stated supra in para- graphs 1 to 22 are true to the best of our knowledge, belief and information."
But only defendant No.1 has put his signature to written statement and additional written statement.
87. Though in verifying affidavit, the defendant No.1 affirmed as above that the defendant No.2 gave authority to him to prosecute the case and in his sworn affidavit in examination in chief, he has sworn on behalf of himself and on behalf defendant No.2 and reiterated all the contentions of latter amended written statement, but he has not produced any document of authority executed by defendant No.2 in favour of defendant No.1 to prosecute this case. There are several documents produced by him to disprove plaintiff's case and defend them which are marked as Exs.D.1 to Ex.D.19, but there is no such power of authority/Power of attorney executed by defendant No.2 to defendant No.1 has been produced and marked.
77 OS No.5682/2010-Judgment
88. To avoid multiplicity of proceedings by dismissing counter-claim on the above technical ground, this Court gone through the documentary and oral evidence of defendant No.1 as DW 1.
89. All the documentary evidence produced by him are certified copies. There are no original documents marked prior to reconstruction of mis-placed exhibits as discussed supra.
90. Ex.D.1 is the certified copy of sale deed dated 23-07-2010 executed by Muniyellappa S/o. Doddavajrappa, his wife Sadamma and son Ramakrishna, Vajrappa, Venkatesh, Muniraju, Manjappa, Nagamma, Narayanamma, Jayamma, Yellamma and Varalakshmi along with one Praveen Kumar who is noted as 3(a) in favour of defendant No.1 in respect of property in Sy.No.25 of Sarakki Kere village measuring 30 guntas out of total extent of 1 acre 30 guntas and measuring 1 acre out of the total extent of 1 acre 30 guntas in Sy.No.25 of Sarakki Kere Village. In the same sale deed to defendant No.1, the total extent of 1 acre 30 guntas in Sy.No 25 alleged to be sold by making them in separate 78 OS No.5682/2010-Judgment schedules. Surprising point of this document is vendor/seller No.1 is Muniyellappa S/o. Late Dodda Vajrappa. The vendor No.3 is Ramakrishna mentioned as S/o. Late Muniyellappa. Vendors No.4 to 7 are mentioned as sons of Late Muniyel- lappa. At the end of the name of 1 st parties, the vendors it is mentioned as "Sl.Nos.8 to 12 are the daughters of Muniyellappa. Though the said Muniyellappa is made as 'Ven- dor No.1' but in the address of his sons, his name is shown as "Late Muniyallappa." That means he was deceased at the time of execution of said sale deed. Then how a registered document of sale deed made by a dead person. In page No.7 of Ex.D.1, it is mentioned about the death of Doddavajrappa on 21/05/1987, but there is no recital about death of Muniyallappa the vendor No.1. There is no signature of said Muniyellappa in Ex.D.1 and there found a thumb impression identified as it is of Muniyellappa. Next to that, the 'vendor No. 3' is mentioned as Ramakrishna S/o. Late Muniyellappa and next to him one vendor, his number is mentioned as "3(a)" named Praveen Kumar S/o. Ramakrishna. Then question that will arise is as to why only the son of this 79 OS No.5682/2010-Judgment Ramakrishna is made as one of the vendors without making the other grand children of said Muniyellappa as the vendors. Another most important point is that there is family tree of deceased Dodda Vajrappa, which is produced. No document of Partition Deed or Will of Dodda Vajrappa is produced. But surprising point is in Ex.D1 which is executed after the death of Dodda Vajrappa as his successors. But there is no recital that the said Muniyellappa is the only son of Dodda Vajrappa and without family tree, it will create cloud of doubts in the mind of the Court about the said title deed, but it is not required to prove the said document in this case as already concluded in Issue Nos.1 and 2 that the plaintiff is not in possession suit schedule property.
91. Ex.D.2 is the certified copy of Encumbrance Certificate in Form No 15 for the period of 01-04-2013 to 19-04-2021 which shows entry of Ex.D.1, but defendant has not produced any EC showing the flow of transaction in respect of suit schedule property prior to his alleged Sale Deed that is Ex.D1.
80 OS No.5682/2010-Judgment
92. Further, he has produced the certified copy of Order in RA (S) No.418/2012-13 pronounced by the Court of the Assistant Commissioner Bangalore dated 24-02-2014 filed by Gavaskar Babu Kankanala and 4 others against the Tahasildar, Bangalore South Taluk and others in respect of suit schedule property herein, which is narrated supra in the pleadings in the written statement. In the said order, it is ordered as;
"As already held by me that, the parties shall work out their remedy in a competent court of law and some of the appellants and respondents have already approached the civil court and the revenue authorities have to wait for the verdict of the civil court so as to change the mutation entries and however, the other ap- pellants are at liberty to agitate their rights be- fore the competent civil court and thereafter seek for change of mutation to their names.
Having considered the rival claims of the parties and also the documents produces by them, I am of the opinion that, the appeal is li- able to be dismissed and accordingly, the Ap- peal is dismissed."81 OS No.5682/2010-Judgment
93. It is true that in the said order, there is suggestion to get remedy through competent civil court. But here in the counter claim the defendant No 1 and 2 prayed for handing over the possession of suit schedule property by the plaintiff without prayer for declaration of their ownership and title over the suit schedule property which is not tenable under law.
94. Moreover, Ex.P.12 is the certified copy of plaint in OS No.9056/2011 which is marked through confrontation to DW 1 in his cross examination shows that there is a suit for specific performance of execution of sale deed in respect of Site No.1 in Sy.No.25 of Sarakkikere village filed by M. Sridhara and another against the vendors of this defen- dant No.1 herein whose name is mentioned Ex.D1 as some of the defendants. The other defendants of that case are the vendors of plaintiff herein, the alleged GPA holder of plaintiff's vendor's vendor here in, plaintiff herein and the said Gavaskar Babu Kanakanala with few others. There is no judgment and decree of said case filed by either of the parties in this case which gives presumption that the said 82 OS No.5682/2010-Judgment suit is still pending which leads to inference that the title of defendant Nos.1 and 2 over the suit schedule property is in cloud.
95. Exs.D.4 and 5 are the the judgments in RFA No.1151/2013 dated 20-02-2013 and in RFA No. 1152/2013 dated 27-03-2013 which are filed by defendant Nos.1 and 2 passed in respect of order on IA No.2 and 3 of this case. As per guidelines given in paragraph 8 of Ex.D.5, the documents are summoned from the office of the Deputy Commissioner which are marked as Exs.C.1 to Ex.C.4.
96. Ex.C.1 is the Authorisation Letter given to CW1 Sheshagiri by the Tahasildar of Bangalore South as the documents pertaining to the suit schedule property are in his custody. Ex.C.2 is the document pertaining to Inam regrant in the name of 21 persons in Sy.No 13, 19, 23 and 25 as thoti neeraganti in Sarakkikere village. In the said document, 0.06 guntas in Sy.No 25 was granted in the name of Doddavajrappa, 0.08 in the name of Arekerappa, separate 0.04 of lands separately in the name of Muniyappa, Rama, Muniyellappa, Munivenkatappa, Muniyella, Munikaveramma 83 OS No.5682/2010-Judgment and Doddathimmaiah. Ex.C.4 is the file of documents pertaing to sy.No.13, 19 and 25 as "Kacheri Tippani." In the said document it is mentioned as, "ಪೊಲಿಸ್ ಸಬ್ ಇನ್ಸ್ಪೆಪೆಕ್ಟ ರ್ ಜೆ ಪಿ ನಗರ ಪೋಲಿಸ್ ಠಾಣೆ ರವರ ಪತ್ರದಲ್ಲಿ ಶ್ರೀ ವಜ್ರಪ್ಪ ಬಿನ್ ಮುನಿಯಲ್ಲ ಪ್ಪ ಎಂಬುವವರು ನೀಡಿರುವ ದೂರಿನಂತೆ ಸಾರಕ್ಕಿ ಕೆರೆ ಗ್ರಾಮದ ಸರ್ವೆ ನಂ.25 ರಲ್ಲಿ 1-30 ಗುಂಟೆ ಜಮಿಾನು ನಮ್ಮ ತಾತ ದೊಡ್ಡ ವಜ್ರಪ್ಪ ನವರಿಗೆ ತೋಟಿ ಇನಾಂ ಅಡಿಲೀ ಗ್ರಾಂಟ್ ಆಗಿ ಬಂದ ಜಮಿಾನಾಗಿರುತ್ತದೆ. ಇವರು ಮೃತರಾಗಿದ್ದು , ಈ ಜಾಗಾವನ್ನು ನೀವು ಶ್ರೀದರ್ ಎಂಬವವರಿಗೆ ಮಾರಾಟ ಮಾಡಲು ನಿರ್ಧರಿಸಿ ಅಗ್ರಿಮೆಂಟ್ ಮಾಡಿದ್ದು ಜಯರಾಂ ನಾಯ್ಡು ಮತ್ತು ಇತರರು ಸದರಿ ನಮ್ಮ ಜಾಗಾಕ್ಕೆ ಕೆಲಸ ಮಾಡಲು ಬಂದಿದ್ದು ಅದರ ಮೂಲಕ ಪರಭಾರೆ ಆಗಿರುವುದು ಕಂಡುಬಂದಿರುತ್ತದೆ. ಇವರು ಈ ದಾಖಲಾತಿಗಳನ್ನು ಸೃಷ್ಟಿ,ಸಿಕೊಂಡಿರುತ್ತಾರೆ. ಈ ಬಗ್ಗೆ ಕ್ರಮ ಜರುಗಿಸುವಂತೆ ಮಾನ್ಯ 5 ನೇ ಎಸಿಎಂಎಂ ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಪಿಸಿಆರ್ ನಂ.33615-10 ರಲ್ಲಿ ನೀಡಿದ ದೂರಿನ ಮೇರೆಗೆ ಘನ ನ್ಯಾಯಾಲಯ ಆದೇಶದಂತೆ ಮೇಲ್ಕಂಡ ಪ್ರಕರಣ ದಾಖಲು ಮಾಡಿರುತ್ತದೆ." Next to that it is noted as, "ಪರಿಶೀಲಿಸಲಾಗಿ ಇವರ ತಾತ ದಿವಂಗತ ದೊಡ್ಡ ವಜ್ರಪ್ಪ ನವರಿಗೆ ತೋಟಿನೀರಾಗಂಟಿ ಇನಾಂ ಮೂಲಕ ಸಾರಕ್ಕಿ ಕೆರೆ ಸರ್ವೆ ನಂ. 25 ರಲ್ಲಿ 1-30 ಗುಂಟೆ ಜಮಿಾನು ರೀಗ್ರಾಂಟ್ಆಗಿರುತ್ತದೆ. ಈ ರೀಗ್ರಾಂಟ್ಅದೇಶವು ಒಟ್ಟು 21 ಜನರಿಗೆ ಆಗಿದ್ದು , ಅದರಲ್ಲಿ ದೊಡ್ಡ ವಜ್ರಪ್ಪ ನವರಿಗೂ ರೀಗ್ರಾಂಟ್ ಆಗಿರುವುದು ಕಂಡಬಂದಿರುತ್ತದೆ. ಇದರಲ್ಲಿ ಶಂಭಪ್ಪ ಎಂಬುವವರಿಗೆ ಸರ್ವೆ ನಂ. 13 ರಲ್ಲಿ 12 ಗುಂಟೆ ಜಮಿಾನು ರೀ ಗ್ರಾಂಟ್ ಆಗಿರುವುದು ಕಂಡುಬರುತ್ತದೆ. ಆದರೆ ಇದೇ ಶಂಭಪ್ಪ ರವರು ಬಿ ಜಯರಾಮನಾಯ್ಡು ರವರಿಗೆ ತನಗೆ ಬಂದ ಪಿತ್ರಾರ್ಜಿತ ಆಸ್ತಿಯೆಂದು ಸರ್ವೆ ನಂ.25 ರಲ್ಲಿ ಸೈಟನ್ನು ಜಿಪಿಎ 84 OS No.5682/2010-Judgment ಮೂಲಕ ನೀಡಿರುತ್ತಾರೆ. ಆದರೆ ಶೆಡ್ಯೂ ಲ್ ನಲ್ಲಿ ಸರ್ವೆ ನಂ 34 ಎಂದು ನಮೂದಿಸಿರುತ್ತಾರೆ. ನಂತರ ಸೇಲ್ ಡೀಡ್ ಮಾಡಿಕೊಟ್ಟಿದ್ದು ಅದರಲ್ಲಿ ಸೈಟ್ ನಂ. 1 ಸಿಎಂಸಿ ಖಾತಾ ನಂ.25 ಎಂದು ನಮೂದಿಸಿರುತ್ತಾರೆ." In serial No.3, page No.189 of said document, it is noted as," ಈ ಎಲ್ಲಾ ಅಂಶಗಳನ್ನು ತಮ್ಮ ಅವಗಾಹನೆಗೆ ಸಲ್ಲಿಸಿದೆ. ಹಾಗೂ ಕಛೇರಿಯಲ್ಲಿ ಲಭ್ಯ ವಿರುವ ಮೂಲ ರೀ ಗ್ರಾಂಟ್ ಕಡತವನ್ನು ಪರಿಶೀಲನೆಗೆ ಮಂಡಿಸಿದೆ. ಹಾಗೂ ರೀಗ್ರಾಂಟ್ ಆದೇಶಕ್ಕೆ (ಹಸಿರು ಭಾವುಟ ಹಾಕಿದೆ) ಆದೇಶವನ್ನು ಪರಿಶೀಲಿಸಲಾಗಿ, ಮೂಲ ರೀ ಗ್ರಾಂಟ್ ದಿನಾಂಕ 30-12-85 ರಲ್ಲಿ ಆದೇಶದಲ್ಲಿ ಶಂಭಪ್ಪ ರವರಿಗೆ ಸ.ನಂ.13 ರಲ್ಲಿ 0-12 ಗುಂಟೆ ಜಮಿಾನು ಮಂಜೂರಾಗಿರುವುದಾಗಿ ಪೋಲಿಸ್ಇನ್ಸ್ಪೆಕ್ಟ ರ್ರವರು ಕಳುಹಿಸಿರುವ ಒಂದು ರೀಗ್ರಾಂಟ್ ಆದೇಶದಲ್ಲಿ ತಾಲೂಕ ಕಛೇರಿಯಲ್ಲಿ ಪ್ರತಿ ನೀಡಿರುವುದು ಎಂದು ದೃಢೀಕರಿಸಿರುವ ಪ್ರತಿ ಮೂಲ ಪತ್ರದಂತೆಯೇ ಇರುತ್ತದೆ." and in Serial No 4 it is mentioned as, ".....ಇನ್ನೊಂದು ನಕಲು ಪ್ರತಿಗೆ ಶಂಭಪ್ಪ ಎಂಬುವರ ಹೆಸರಿನ ಮುಂದೆ ಸರ್ವೆ ನಂ.13 ಪಕ್ಕ ದಲ್ಲಿ 25 ಎಂದು ತಿದ್ದಿರುತ್ತದೆ." Then the property granted to Shambappa who was the vendor's vendor of plaintiff here in is not in Sy.No 25 and it is in Sy.No 34. As the documents clearly say about the properties then identification of property in respect of plaintiff's claim herein does not arise by appointment of Court Commissioner as the plaintiff herself 85 OS No.5682/2010-Judgment failed to prove her possession of property by evidence as discussed supra.
97. But these defendant Nos.1 and 2 also failed to prove the identification of their property as there are numerous grants in Sy.No 25 and as discussed above, the title of the defendant Nos.1 and 2 is in cloud. Moreover, there is no prayer for declaration of their title and ownership over the suit schedule property.
98. Here, defendant No.2 is Muniyellappa S/o. Doddavajrappa. As stated above in Ex.D.1, he was mentioned as "Late Muniyallappa." And in original written statement and amended written statement, there is no signature of Muniyellappa. One of his son Ramakrishna is shown as predeceased by making his son as one of the party to Ex.D.1. Therefore, there is a doubt created in the mind of the court that whether this suit is filed against one of dead person, whether Ex.D1 executed in the name of dead person. But the defendant Nos.1 and 2 have not come forward to prove the same.
86 OS No.5682/2010-Judgment
99. While comparing Ex.D.3 and Ex.P.12 it is found that this defendant Nos.1 and 2 were aware about getting remedy through competent civil court, but did not take any pain to pray the relief of declaration of ownership and merely prayed in counter claim for possession of suit schedule property specifically against the plaintiff herein. But Ex.P.12 shows that the title of the vendor of defendant No.1 that is the title of defendant No.2 itself is in cloud and there is civil suit O. S. No. 9056/2011 pending as per Ex.P.12.
100. Ex.D.6 is the Order dated 22-10-2013 issued by the District Registrar who is defendant No.4 herein, in which the Sub-Registrar that is the defendant No.5 herein made claim regarding registration of sale deed dated 23-07-2010 which is Ex.D.1. In the said document, there is narration about objection filed by the plaintiff herein. Further, there is also mention about this case OS No.5682/2010. In the said order, it is stated that the property in question that is 1 acre 30 guntas in Sarakki Kere village was spot inspected in the presence of the representative of defendant. And he has opined in page No 3 of Ex.D.6 as; " ಪ್ರತಿವಾದಿಯು ಸಲ್ಲಿಸಿರುವ ಮನವಿ 87 OS No.5682/2010-Judgment ಹಾಗೂ ಲಭ್ಯ ವಿರುವ ದಾಖಲೆಗಳಲ್ಲಿ ನಮೂದಿಸಿರುವ ವಿವರಗಳನ್ನು ಸ್ಧ ಳ ಪರಿವೀಕ್ಷಣಾ ಸಂದರ್ಭದಲ್ಲಿ ಕೂಲಂಕುಷವಾಗಿ ಪರಿಶೀಲಿಸಲಾಯಿತು. ಸ್ಧ ಳ ಪರಿವೀಕ್ಷಣಾ ಸಂದರ್ಭದಲ್ಲಿ ಪ್ರತಿವಾದಿಯ ಹೇಳಿಕೆಯಲ್ಲಿನ ಕೆಲವಾರು ಅಂಶಗಳಲ್ಲಿ ಸತ್ಯಾಂಶವಿರುವುದನ್ನು ಮನಗಾಣಿಸಲಾಯಿತು. ಲಭ್ಯ ವಿರುವ ಮಾರ್ಗಸೂಚಿ ಮಾರುಕಟ್ಟೆ ದರಪಟ್ಟಿಯನ್ನು ಪರಿಶೀಸಲಿಸಲಾಗಿ, ಸಾರಕ್ಕಿ ಕೆರೆ ಗ್ರಾಮದ ವ್ಯಾಪ್ತಿಯಲ್ಲಿನ ಜಮಿಾನುಗಳಿಗೆ ಸೂಚ್ಯಂಕ ಬೆಲೆ ನಮೂದಾಗಿರುವುದಿಲ್ಲ . ಇದೇ ಕಾರಣದಿಂದಾಗಿ ಜೆ.ಪಿ.ನಗರ ಉಪನೊಂದಣಾಧಿಕಾರಿಗಳು ಕ್ರಯಪತ್ರದ ನೊಂದಣಿಯನ್ನು ಅಮಾನತಿನಲ್ಲಿಟ್ಟು ಆಸ್ತಿಯ ಮೌಲ್ಯ ನಿರ್ಧಾರಕ್ಕಾಗಿ ಈ ಪ್ರಾಧಿಕಾರಕ್ಕೆ ಸಲ್ಲಿಸಿರುತ್ತಾರೆ." and directed to register the same by or- der stating that; ಪ್ರಶ್ನಿತ ಸ್ವ ತ್ತು ಜಮಿಾನಾಗಿದ್ದು , ಮೂಲ ಕೃಷಿ ರೂಪದಲ್ಲೇ ಉಳಿದಿರುವಿಕೆ, ಕೆರೆಯ ದಂಡಿನ ತಗ್ಗು ಪ್ರದೇಶದಲ್ಲಿರುವ ಜಮಿಾನಾಗಿರುವಿಕೆ, ರಸ್ತೆಯ ಮಟ್ಟ ಕ್ಕಿಂತ 12 ಅಡಿ ತಗ್ಗಿನಲ್ಲಿನ ಸಮತಟ್ಟಿನಿಂದ ಕೂಡಿಲ್ಲ ದ ಜಮಿಾನಾಗಿರುವಿಕೆ, ಕನಕಪುರ ರಸ್ತೆಯಿಂದ 3 ಕಿಮಿ ಒಳಭಾಗದಲ್ಲಿದ್ದ ರುಾ ಅಭಿವೃದ್ದಿ ಹೊಂದಿ ವಾಸದ ಪ್ರದೇಶವಾಗಿರುವ ಪುಟ್ಟೇನಹಳ್ಳಿ ಪ್ರದೇಶಕ್ಕೆ ಹೊಂದಿಕೊಂಡಿರುವ ಜಮಿಾನಾಗಿರುವಿಕೆ, ಅಕ್ಕ ಪಕ್ಕ ದಲ್ಲಿ ವಸತಿ ಕಟ್ಟ ಡಗಳು ನಿರ್ಮಾಣವಾಗಿದ್ದು ಇಡೀ ಸುತ್ತಮುತ್ತಲಿನ ಪ್ರದೇಶ ವಸತಿ ಪ್ರದೇಶವಾಗಿರುವುದು ದೃಢಪಟ್ಟಿರುವಿಕೆ, ಜಮಿಾನನ್ನು ಚಟುವಟಿಕೆ ಬಳಸಿಕೊಳ್ಳ ಲು ಅನುಕೂಲಕರ ವಾತಾವಾರಣವಿರುವಿಕೆ, ಜಮಿಾನನ್ನು ಉಪಯೋಗಿಸುವ ಮುನ್ನ ಸಮತಟ್ಟು ಗೊಳಿಸುವುದು ಅತ್ಯ ವಶ್ಯ ಕವಾಗಿದ್ದು ಇದಕ್ಕಾಗಿ ಪ್ರತಿವಾದಿಯು ಅಪಾರ ಸಮಯ, ಶ್ರಮ ಹಾಗೂ ಬಂಡವಾಳ ವ್ಯ ಯಮಾಡಬೇಕಾಗಿ ಬರುವಿಕೆ, ಜಮಿಾನು ಇರುವ ಸ್ಧ ಳದಿಂದ ಸುತ್ತಮುತ್ತಲಿನ ಪ್ರದೇಶಗಳಲ್ಲಿರುವ ಜಮಿಾನು ಹಾಗೂ ನಿವೇಶನಗಳ ಸೂಚ್ಯಂಕ ಬೆಲೆಗಳ ವಿವರ ಮತ್ತು ಅಲ್ಲಿನ ಸೌಲಭ್ಯ ಗಳ ವಿವರ, ಹಾಲಿ ಮಾರ್ಗಸೂಚಿ ಮಾರುಕಟ್ಟೆ ದರಪಟ್ಟಿಯಲ್ಲಿ ಸ್ವ ತ್ತು ಇರುವ 88 OS No.5682/2010-Judgment ಪ್ರದೇಶದ ಜಮಿಾನುಗಳ ಸೂಚ್ಯಂಕ ಬೆಲೆ ನಮೂದಾಗಿಲ್ಲ ದಿರುವಿಕೆ, ಸ್ಧ ಳೀಯ ವಿಚಾರಣೆ ವೇಳೆ ತಿಳಿದುಬಂದ ಈ ಪ್ರದೇಶದ ಜಮಿಾನುಗಳ ಮಾರಾಟ ಬೆಲೆಗಳ ವಿವರ, ಈ ಕಛೇರಿಯಲ್ಲಿ ಲಭ್ಯ ವಿರುವ ಉಪಯುಕ್ತ ಅಂಕಿ ಅಂಶಗಳು, ಇವೇ ಮುಂತಾದ ಕ್ರೂ ಢೀಕರಿಸಿದ ಅಂಕಿ ಅಂಶಗಳ ಆಧಾರದ ಮೇಲೆ ಆಸ್ತಿಯ ಮಾರುಕಟ್ಟೆ ಬೆಲೆಯನ್ನು ಈ ಕೆಳಕಂಡಂತೆ ನಿರ್ಧರಿಸಲಾಗಿದೆ........ Exs.P.7 to 13 are revenue records such as 11-E Sketch, RTCs and document of mutation entry which shows the name of defendant No.1 is entered pertain- ing to Sy.No. 25/3. But these documents and above recitals in Ex.D 6 show it as agricultural land.
101. However, the suit schedule property as per plaint is site No.1 in Sy.No 25 of Sarakki Kere village. It is true that the plaintiff herein has not produced any documents to show that the property in Sy.No.25 of Sarakki Kere village was formed as layout and sites. But it is also true that this defendant Nos.1 and 2 has not made the schedule property in Ex.D.1 as their counter claim property. There is no prayer about the declaration of their ownership. Though Ex.D.16 and Ex.D. 17 the notice dated 16-04-2008 issued by the Division officer Bangalore South show that in Column No.9 of RTCs stated as the name of Shambappa is entered unauthorisedly, 89 OS No.5682/2010-Judgment but on the basis of such revenue records, this Court cannot conclude the ownership of defendant No.1 over the property in Ex.D.1 as it is under cloud as per Ex.P.12. Ex.D.18 is the certified copy of grant order which is already discussed above in discussion on Ex.C.1 to Ex.C.4.
102. Ex.D.15 is the copy of FIR dated 10-09-2010 filed by Mr.Vajrappa S/. Muniyellappa as complainant against B. Jayarama Naidu and his sons who are the GPA holder and vendor of plaintiffs. The date of complaint is shown as 10-09-2010. The date of offence is shown as 30-12-1985 to 09-09-2010. But here in this case, it will not lend support the defendants as in counter claim as there is no prayer against said Jayaram Naidu and his sons.
103. Therefore, as per above discussions and facts and circumstances of the case by documentary evidence itself, the defendant Nos.1 and 2 failed to prove their side as per discussion on Ex.D.1 and importantly, there is no prayer in counter claim about the property mentioned in Ex.D.1. In the Counter Claim, it is prayed for recovery of possession against the plaintiff over the suit schedule property. The suit 90 OS No.5682/2010-Judgment schedule property in plaint schedule is the site No.1 in khata No.25 of Sarakkikere village. The property in Ex.D 1 is measuring 1 acre 30 guntas of land in Sy.No 25 of Sarakki Kere village. But both the sides have not produced the docu- ments pertaining to conversion of agriculture land which is mentioned in Ex.D 6 and there are no documents to show that the property in Ex.D 1 is converted to non agricultural purpose and layout sanction plan and no the documents pertaining to formation of site are produced.
104. It is well-known principle of law that, the docu- mentary evidence prevail over the oral evidence. When both the sides failed to prove their respective prayers/claims, then mere oral evidence will not give any support to them and be- comes insignifacant.
105. There is an elucidation from PW 1 in paragrapgh 4 of his cross examination that the defendant Nos.4 and 5 made as party to the suit as they forged the documents in the name of 1st defendant. As discussed supra on Ex.D.1, it gives inference that how the said sale deed executed through deceased person. In page No.9, paragraph 6 of the 91 OS No.5682/2010-Judgment cross examination of DW.1, it is elicited that "6. ನಿ.ಡಿ.7 ನಾನೇ ಅರ್ಜಿ ಸಲ್ಲಿಸಿ ಪಡೆದಿದ್ದೆ. ಸದರಿ ನಕಾಶೆಗಿಂತ ಮೊದಲು ಬೇರೆ ಯಾವುದೇ ದಾಖಲೆ ಇಲ್ಲ . ಆ ಅರ್ಜಿ ಜೊತೆ ರೈತರ ದಾಖಲೆ ಕೊಟ್ಟಿದ್ದೆ. ಆರ್ಟಿಸಿ, ಮ್ಯು ಟೕೆಶನ್, ಎಂಆರ್ 5 ದಾಖಲೆ ಕೊಟ್ಟಿದ್ದೆ. ಆ ರೀತಿ ರೈತರಿಗೆ ಸಂಬಂಧಪಟ್ಟ ದಾಖಲೆಗಳು ನನ್ನ ಬಳಿ ಇಲ್ಲ . ಸದರಿ ಆಸ್ತಿಯ ಮೂಲ ಮಾಲೀಕರ ಎಲ್ಲಾ ದಾಖಲೆಗಳನ್ನು ಕೊಟ್ಟಿದ್ದೇನೆ. ಈಗ ತೋರಿಸಿದ ದಾಖಲೆಗಳು ಮೂಲ ಮಾಲೀಕರಿಂದ ಪಡದಂತಹ ದಾಖಲೆಗಳು ಎಂದು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಾನೆ. ನಿಡಿ 7 ರಿಂದ 13/2013 ರಲ್ಲಿ ನನ್ನ ಹೆಸರಲ್ಲೇ ನೊಂದಾಯಿತ ಪತ್ರ ಎಂದು ಹೇಳುವ ದಾಖಲೆಗಳು ಎಂದು ಹೇಳುತ್ತಾರೆ. ನಿಡಿ13 ರಲ್ಲಿ ಶಾಂಭಪ್ಪ ನ ಹೆಸರು ಇದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ಸದರಿ ನಿಡಿ13 ರಲ್ಲಿ ಶಾಂಭಪ್ಪ ನಿಂದ ದೊಡ್ಡ ವಜ್ರಪ್ಪ ನ ಹೆಸರಲ್ಲೇ ಆಗಿದೆ ಎಂದು ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಹೌದು. ಆ ಬದಲಾವಣೆ ದಿನಾಂಕ 15-01-1997 ಆರ್ ಆರ್ ಟಿ ಸಿ ಆರ್ ನಂಬರ್144/96-97 ಪ್ರಕಾರ ಆಗಿದೆ ಎಂದು ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಹೌದು. 1978 ರಿಂದ 1997 ರವರೆಗೆ ಸರ್ವೆ ನಂಬರ್ 25 ರಲ್ಲಿ 1 ಎಕರೆ 30 ಗುಂಟೆ ದೊಡ್ಡ ವಜ್ರಪ್ಪ ನ ಹೆಸರಿಗೆ ಸೇರಿತ್ತು ಎಂದು ತೋರಿಸಲು ಯಾವುದೇ ದಾಖಲೆ ಹಾಜರುಪಡಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ . ಸದರಿ ಸಾಕ್ಷಿಗೆ ಇನ್ನೊಂದು ಆರ್ ಆರ್ ಟಿ ಸಿ ಆರ್ ನಂಬರ್ 144/96-97 ಮುನಿವೆಂಕಟಮ್ಮ ನಿಂದ ಮುನಿ ಕಾವೇರಮ್ಮ ಹೆಸರಿಗೆ 4 ಗುಂಟೆ ಖಾತೆಯಾಗಿದೆ ಎಂದು ಬರೆಯಲಾಗಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ . ಅದೇ ರೀತಿ 1997 ರಿಂದ 2010 ರವರೆಗೆ ದೊಡ್ಡ ವಜ್ರಪ್ಪ ನ ಹೆಸರಿಗೆ ಆರ್ ಟಿ ಸಿ ಯಾಗಲೀ ಮ್ಯು ಟೇಶನ್ ಆಗಲೀ ಇಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ . ನಿಡಿ13 ರಲ್ಲಿ ದೊಡ್ಡ ವಜ್ರಪ್ಪ ನಿಂದ ನನ್ನ ಹೆಸರಲ್ಲೇ ಖಾತೆಯಾಗಿದೆ ಎಂದು ತೋರಿಸಲಾಗಿದೆ ಎಂದರೆ ಹೌದು. ದೊಡ್ಡ ವಜ್ರಪ್ಪ ನ ಹೆಸರಿನಿಂದ ನಾನು ಆಸ್ತಿಯನ್ನು ಖರೀದಿ ಮಾಡುವ ಕಾಲಕ್ಕೆ ಆತನ ಹೆಸರಿನಲ್ಲಿ ಯಾವುದೇ ಆರ್ ಟಿ ಸಿ ಎಂಆರ್ ಮತ್ತು ಗ್ರಾಂಟ್ 92 OS No.5682/2010-Judgment ಅಗಲೀ ಆತನ ಹೆಸರಲ್ಲಿ ಇಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ ಇತ್ತು ಎಂದು ಹೇಳುತ್ತಾನೆ. ನಿಡಿ18 ಹೆಚ್ ಒಎಸಿಆರ್ 60/83-84 30.12.1985 ರಲ್ಲಿ ಆದಂತಹ ಆದೇಶ ಒಂದೇನ ಎಂದರೆ ಹೌದು." and there is nothing elicited in favour of these defen- dants.
106. Therefore as per facts and circumstances of the case and above discussions this court is of the considered opinion that, there is a prayer for recovery of possession of suit schedule property from the plaintiff to defendant No.1 and 2. But the property in suit schedule is not corresponding with property schedule in Ex.D.1. There is no other property schedule mentioned in counter claim other than plaint schedule property. Moreover, these defendants prayed for possession of the suit schedule property without prayer for declaration of their ownership. Originally, while filing of written statement there was no counter claim, but it is added on 31-08-2018 after the date of order in Ex.D 6.
107. The documentary evidence before this court regarding flow of legal proceedings against suit schedule property are, firstly the plaintiff filed this suit on 13-08-2010 for the relief of permanent injunction against defendant 93 OS No.5682/2010-Judgment Nos.1 to 3 without prayer for declaration of title and without any prayer against defendant Nos.4 and 5 who are main parties in Exs.D 3 and Ex.D 6. As per Ex.P.3, Sri Gavaskar Babu Kankanala and 4 others filed R A (S) No 418/2012-13 before the Assistant Commissioner of Bangalore South Sub- Division against the Tahasildar Bangalore South Taluk and others. The said appeal was filed under Section 136(2) of Kar- nataka Land Revenue Act to call for connected original mutation records in MR No 4/2006-07 dated 8-6-2007 and MR No T-2/2012-13 dated 16-07-2012 and set aside the same and the relevant revenue entries in respect of the property bearing Sy.No 25/1(old Sy.No 25) measuring 1 acre 30 guntas, situated at Sarakki Kere village. In this document there is narration about present case and about MFA No. 1152/2013. In the order in Ex.D 3, it is stated as parties shall work out their remedy in a competent court of law and dis- missed the said appeal on 24-02-2014. As per Ex.P 12 the plaint in OS No.9056/2011, there is a case filed by M. Srid- hara and Srinivas against Defendant No.2 herein (the ven- dors of defendant No.1 herein as per Ex.D 1, namely Muniyel- 94 OS No.5682/2010-Judgment lappa and others), the GPA holder of vendor of plaintiff herein (B. Jayarama Naidu), the vendor of plaintiff herein ( B. Shivaram), the plaintiff herein (L. Revathi)and Gavaskar Babu Kanankanala and others. In that case, the suit schedule property was site No.1 of Sarakki Kere Village measuring 10868 sq ft. But as discussed above on Ex.D.1 the title itself in cloud.
108. The Hon'ble High Court of Karnataka opined in the order in MFA No 1151/2013(CPC) the order of temporary in- junction restraining of registration of pending document No.3449/2010-11 dated 23-07-2010 referred by the defen- dant No 5 is set aside, but opines that if the plaintiff files a petition before the registering authority protesting not to register, the same shall be considered in accordance with law. Vide Order in MFA No.1152/2013 (CPC) the Hon'ble High Court directed not to go ahead with further construction for converting the shed to permanent building by putting RCC roof and plaintiff shall not be entitled to seek water connection sewage connection or any further improvement to the suit schedule property until disposal of the suit. As 95 OS No.5682/2010-Judgment discussed above, this Court summoned the documents from the office of Tahsildar as per guidelines in paragraph 8 of the said order as it is affirmed by the said office as the documents pertaining to Sy.No.25 is in the custody of their office. In Ex.D.3, the office of Assistant Commissioners has already discussed about grant and re-grant of land in Sy.No
25.
109. As through her evidence, the plaintiff failed to establish her title and possession, hence this court deems that there is no necessity to appoint Court Commissioner for spot inspection either regarding "possession" or "position" of suit schedule property. Moreover, though there is a counter claim for recovery of possession, the defendant Nos.1 and 2 have not come forward for appointment of Court Commissioner as they objected to the IA filed by the plaintiff for appointment of court commissioner.
110. Technically speaking this defendant No.1 filed written statement without signature of defendant No.2 and no power of attorney of defendant No 2 in favour of defen- dant No 1 has been produced. Surprisingly, Ex.D.1 creates 96 OS No.5682/2010-Judgment cloud of doubts about the existence of person Muniyellappa (2nd defendant herein) and one Ramakrishna vendor No.3 (as his son is added in Ex.D.1 as vendor 3(a)). In paragraph 8 of Ex.D.3, the document produced by defendant No 1 and 2 clearly says that "the respondent No 4 is reported to be dead on 12-09-2011 and the respondents' counsel filed memo on 28-05-2013 along with copy of death certificate of Mr. Ramakrishna, the 4th respondent herein. The said Ramakrishna, the 4th respondent appears to be one of the sons of respondent No 2." Not only so, but also the said defendant No 2 has not put his signature to written statement, amended written statements, verification for written statement and defendant No.1 has not produced any power of attorney executed by defendant No 2 in his favour.
111. As discussed supra, though in Ex.D.6 in his order, the District Registrar, the defendant No.4 herein, opined that, the information given by defendant has some true facts and ordered for registration with registration fee of Rs.31,97,200/-. But it is not conclusive proof for this court. The defendant Nos.1 and 2 have not taken any pain to 97 OS No.5682/2010-Judgment summon this defendant No.4 as a witness before this court to give his evidence to prove what are the true circumstances he found in his spot investigation as stated in page No.3 of his order in Ex.D 6.
112. As already discussed above, the revenue entries itself are the big question of controversy here in this case, hence, Exs.D.8 to 12 do not come to the help of defendants No.1 and 2 in this case as they have not proved their title in Ex.D.1 beyond ambiguity.
113. As defendants No.1 and 2 have not summoned any witnesses from the revenue office to prove the mutation entries etc., though the Ex.C. series says that the property in Sy.No 34 is granted to Shambappa and in Sy.No 25 the land is granted to Doddavajrappa as elaborately discussed above, but, as stated above, the property in Sy.No.25 granted to number of other persons along with Dodda Vajrappa and the extent of land granted to him do not totally tally with the property mentioned in Ex.D 1. The defendant Nos.1 and 2 have not taken any steps for identification of property. As per his oral evidence, they have also failed to identify the posi- 98 OS No.5682/2010-Judgment tion of either suit schedule property or the property in Ex.D.1. As in this case the main prayer in plaint and prayer in counter claim is only for "Possession" and not for "Declaration of Title". As per general principle of law, in such circumstances the parties to the suit has to prove their case by their evidences produced before the court and in some exceptional circumstances only, the Court Commissioner shall be appointed for identification of property. Here, in this case, the plaintiff failed to prove her title and possession as per Issue Nos.1 and 2, the defendants failed to prove Ex.D 1 without cloud, then there is no necessity of identifying of properties.
114. Moreover, these defendants have produced the FIR dated 10-09-2010 which is marked as Ex.D 15, in which complainant is one Mr.Vajrappa, S/o. Muniyellappa. Muniyellappa is defendant No.2 herein. But, the said Vajrappa is not the party to this case. The said complaint was lodged against Jayaram Naidu, Srinivasa and plaintiff. In the said document, the date of occurrence of offence is noted as "30-12-1985 to 09-09-2010. Then question will arise that why 99 OS No.5682/2010-Judgment the defendants kept mum from 30-12-1985 till 09-09-2010 without taking any action against the plaintiff and other persons who are the GPA holder of vendor of the plaintiff and vendor of the plaintiff. Specifically in Ex.D 15 it is recited as, "ಈ ಕೇಸಿನ ಸಾರಾಂಶವೇನೆಂದರೆ, ಫಿರ್ಯಾದುದಾರರು ಸಾರಕ್ಕಿ ಕೆರೆ ಗ್ರಾಮದ ಸರ್ವೆ ನಂ.25 ರಲ್ಲಿ ನ 1 ಎಕ್ಕ ರೆ 30 ಗುಂಟೆ ಜಮಿಾನಿನ ವಾರಸುದಾರರಾಗಿದ್ದು ಇದು ಇತರ ತಾತ ದಿವಂಗತ ದೊಡ್ಡ ವಜ್ರಪ್ಪ ರವರಿಂದ ಬಂದ ಪಿತ್ತಾರ್ಜಿತ ಆಸ್ತಿಯಾಗಿದ್ದು , ಸರ್ಕಾರದಿಂದ ಗ್ರಾಂಟ್ ಮೂಲಕ ಬಂದದ್ದಾಗಿರುತ್ತದೆ. ಇದನ್ನು ಫಿರ್ಯಾದುದಾರರು ಮಾರಾಟ ಮಾಡಿರುತ್ತಾರೆ. ಆದರೆ ಆರೋಪಿಗಳು ಅಕ್ರಮವಾಗಿ ಲಾಭ ಗಳಿಸುವ ಉದ್ದೇಶದಿಂದ ದಿನಾಂಕ 24.02.1993 ರಂದು ಮಾಡಿಕೊಟ್ಟಂತೆ ಜಿಪಿಎ ಅನ್ನು ಸೃಷ್ಟಿಸಿಕೊಂಡು ಅದರ ಮೂಲಕ ನೊಂದಣೆ ಮಾಡಿಕೊಂಡು ಸಂಚುಮಾಡಿ ಮೋಸ ಮಾಡಿರುತ್ತಾರೆ. ಈ ಜಾಗಾದಲ್ಲಿ ಇದನ್ನು ಕೊಂಡುಕೊಂಡಿದ್ದ ಶ್ರೀಧರ್ ರವರು ಕೆಲಸ ಮಾಡುತ್ತಿರಬೇಕಾದರೆ, ಆರೋಪಿಗಳು ಜಾಗಕ್ಕೆ ಹೋಗಿ ಪ್ರಾಣಬೆದರಿಕೆ ಹಾಕಿರುತ್ತಾರೆ ಎಂದು ಮಾನ್ಯ 5 ನೇ ಎಸಿಎಂಎಂ ನ್ಯಾಯಾಲಯದಲ್ಲಿ ಪಿಸಿಆರ್ ನಂ. 33615-10 ರಲ್ಲಿ ನೀಡಿರುವ ದೂರು ಇತ್ಯಾದಿ." One of the sons of defendant No 2, the vendor No.4 in Ex.D.1 admitted in this document that they have sold 1 acre 30 guntas in Sy.No 25 to one Mr.Sridhar. When there is no contra oral evidence in this regard and this document pro- duced by defendant Nos.1 and 2 [the defendant No 1 is pur- chaser under Ex.D 1 and the defendant No 2 is one of the 100 OS No.5682/2010-Judgment sellers (vendor No 1) in Ex.D 1 and father of complainant who is vendor No 4 in Ex.D .] then it gives inference that they ad- mitted the sale of property in Ex.D 1 to Mr.Shridhar.
115. Therefore, as per facts and circumstances of the case and above discussions the defendant No 1 utterly failed to prove the validity of Ex.D.1 which is the title deed of defendant No 1. When, they themselves failed to prove their own title deed, then it is clear that they failed to establish the question of law and facts in respect of additional Issue No.1 to 4 dated 29-01-2019. Hence, this court answers additional Issue No 1 to 4 dated 29-01-2019 in the Negative.
116. Additional Issues Nos.5 and 6 dated 04-09- 2023 :
At the time of filing of written statement on 09-09-2010, the defendant Nos.1 and 2 have not prayed the counter claim. On 31-08-2018 nearly 8 years from the date of filing of suit and after filing their written statement, they amended their written statement by inserting counter claim and paragraph 19(a) to (c). In respect of the base and cause of action to counter claim shown in paragraph 19(a) to 19(c), in 101 OS No.5682/2010-Judgment para 19(a), they have stated that, the plaintiff and her alleged predecessors in the title have colluded and fabricated several documents and wrongly identified the land measur- ing 1 acre 30 guntas in Sy.No 25 Sarakkikere village, inher- ited by defendant No.2 from his father Doddavajrappa and narrated about grant on 30-12-1985 and about Ex.D.1. If there are such facts and circumstances, then these defendants were aware of the same at the time of service of suit summons to them about the same and even at the time of filing of their written statement. But after order on IA Nos.1 and 2 and after order in MFA No. 1152/2013, these defendants amended their written statement by mentioning the same in paragraph No.19(b) and 19(c). Be that as it may, their documentary evidence that is Ex.D.15 shows that the cause of action arose from 30-12-1985 to 09-09-2010 and as on 10-09-2010 (the date of filing of Ex.D 15), these defen- dants were aware about the selling of property in Ex.D.1 to Mr.Sridhar. Then this court compared the same with Ex.P.12 the plaint in OS No.9065/2011 filed by said Sridhar in which the date of sale agreement goes back to 26-04-2006. Then it 102 OS No.5682/2010-Judgment is clear that definitely these defendants were aware about the facts and circumstances from the year 2006 and this counter claim is filed beyond the period of limitation for re- covery of possession. -
117. Next to that, regarding insufficient court fee per- taining to counter claim, there is no wispher about payment of court fee on counter claim the additional written statement and it is not attached with valuation slip. The same is men- tioned in paragraph 7 of rejoinder by plaintiff to counter claim. In page No 27 paragraph 25 of cross examination of DW 1 it is stated by him as, "25. ನಾನು ಒಂದು ಎಕರೆ 30 ಗುಂಟೆಗೆ ಕೌಂಟರ್ ಕ್ಲೇಮ್ ಮಾಡಿದ್ದು ಅದಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ ಒಂದು ಎಕರೆ 30 ಗುಂಟೆಯ ಮೌಲ್ಯ ದಷ್ಟು ಕೋರ್ಟ್ ಫೀ ಕಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ . ವಾದಪತ್ರದಲ್ಲಿ ತೋರಿಸಿರುವ ದಾವಾ ಸ್ಧ ಳದ ವಿಸ್ತೀರ್ಣಕ್ಕೆ ಅನ್ವ ಯವಾಗಿ ನಾನು ಕೋರ್ಟ್ ಫೀ ಕಟ್ಟಿದ್ದೇನೆ ಹಾಗೂ ನನ್ನ ಎದುರು ದಾವೆಯಂತೆ ಕಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ ." But, there after this cross examination also defendant No 1 and 2 has not taken any pain to pay either court fee or deficit court fee. Moreover, this counter claim is made for recovery of possession without prayer for declaration.
103 OS No.5682/2010-Judgment
118. Therefore, this court is of the opinion that this counter claim is made after lapse of period of limitation and court fee has not paid properly, hence this Court answers ad- ditional issues No 5 and 6 dated 04-09-2023 in the Affirmative.
119. Issue No 4 : As per facts and circumstances of the case and above discussions and as per negative answer to Issue No 1 and 2, this court is of the considered opinion that the plaintiff has failed to prove her possession over the suit schedule property and accordingly she has failed to prove the interference of the defendants over suit schedule property, hence, this court answers Issue No 4 in the Negative.
120. Issue No 5 : As per the above discussions and mainly as per negative answer to Issue No.4 and Additional Issue No 4 dated 29-01-2019, this court is hereby adjudicate that the plaintiff and defendant No 1 and 2 have failed to prove their respective case in the plaint and counter-claim, therefore both the suit and counter-claim are liable to be dis- missed and accordingly, proceed to pass the following; 104 OS No.5682/2010-Judgment
ORDER The suit of the plaintiff is hereby dismissed. The Counter-claim of defendants No.1 and 2 is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Sr.Sheristedar on Computer, typed by him, corrected, signed and then pronounced by me in open Court on this the 5th day of July 2024.
(SMT. JYOTHSNA D.,) XVI Addl. City Civil & Sessions Judge, Bangalore SCHEDULE All that piece and parcel of North Eastern Portion of (Eastern Half portion of) the property bearing Site No.1, CMC Katha No.25, situated at Sarakki Kere Village, Uttarahalli Hobli, Bangalore South, measuring East to West 50 feet and North to South 60 feet, in all measuring 3000 square feet, and bounded on:
East by: Road West by : Property belonging to B.Srinivas North by: Road South by : Remaining portion of same property belonging to Shivaram.105 OS No.5682/2010-Judgment
ANNEXURE List of witnesses examined for the plaintiff. PW 1 - Smt. L. Revathi List of witnesses examined for the defendants. DW 1 - M. Ashwath List of documents marked for the plaintiff. Ex.P.1 & 2 Certified copies of 2 sale deeds registered on 27.01.2003 Ex.P.3 Certified copy of the Sale Deed dated 03.08.2009 Ex.P.4 Original Sale Deed dated 20.02.2010 Ex.P.5 Receipt Dated 16.6.2010 for having paid tax Ex.P.6 Property Extract issued by Corporation in Form B Ex.P.7 Copy of the Letter dated 10.08.2010 written by plaintiff to the District Registrar Ex.P.8 to 10 3 Tax Paid Receipts Ex.P.11 Acknowledgment issued by J.P.Nagar Police on 30.06.2013 for having received the complaint Ex.P.12 Certified copy of the Sale Deed dated 6.4.1998 Ex.P.13 Certified copy of the Sale Deed dated 15.04.1998 106 OS No.5682/2010-Judgment Ex.P.14 Certified copy of the Sale Deed dated 13.12.1999 Ex.P.15 Certified copy of the Sale Deed dated 28.01.2000 Ex.P.16 Certified copy of the Sale Deed dated 22.9.2000 Ex.P.17 Certified copy of the Sale Deed dated 28.01.2000 Ex.P.18 Certified copy of the Sale Deed dated 13.10.2000 Ex.P.19 Certified copy of the Sale Deed dated 06.12.2001 Ex.P.20 Certified copy of the Sale Deed dated 26.12.2001 Ex.P.21 Certified copy of the Sale Deed dated 19.04.2002 Ex.P.22 Certified copy of the Sale Deed dated 19.04.2002 Ex.P.23 Certified copy of the Sale Deed dated 25.09.2002 Ex.P.24 Certified copy of the Sale Deed dated 25.09.2002 Ex.P.25 Certified copy of the Sale Deed dated 25.07.2003 Ex.P.26 Certified copy of the Sale Deed dated 27.11.2003 Ex.P.27 Certified copy of the Sale Deed dated 11.02.2000 Ex.P.28 Certified copy of the Sale Deed dated 19.09.2002 List of documents marked for the defendants.
Ex.D.1 Certified copy of the Sale Deed dated 23.07.2010 Ex.D.2 Certified copy of the Encumbrance Certificate for the period 01.04.2013 to 19.04.2021 Ex.D.3 Certified copy of the Order passed by the Asst.
Commissioner Ex.D.4 & 5 Certified copy of the Order passed in MFA No.1151/2013 and 1152/2013 Ex.D.6 Certified copy of the Order passed by the District Registrar on 22.10.2013 107 OS No.5682/2010-Judgment Ex.D.7 Certified copy of Survey Sketch Ex.D.8 to 12 5 Pahani Extracts Ex.D.13 Certified copy of MR Extract Ex.D.14 Certified copy of the application filed through RTI Ex.D.15 Certified copy of FIR Ex.D.16 Endorsement issued by the Tahsildar Ex.D.17 Endorsement issued by the Asst. Commissioner Ex.D.18 Certified copy of the Regrant Order Ex.D.19 Certified copy of Check List (SMT. JYOTHSNA D.,) XVI Addl. City Civil & Sessions Judge, Bangalore