Bangalore District Court
S.S.Sankar vs K.B.Subramanian on 23 November, 2017
IN THE COURT OF THE VII.ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH.No.19)
Dated: This the 23rd Day of November 2017
Present: Smt. Saraswati.V.Kosandar, B.Com., LL.M.,
VII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.NO.1242/1998
Plaintiff: S.S.Sankar, S/o Sankaran
Chettiar, Major, residing at
Keelakotai Village, Chinnalpatti
Taluk, Dindigal District, Tamil
Nadu.
(Since deceased by L.Rs.,)
1a ) Smt.S.Mallamma, W/o late
Sri.S.S.Sankar, Aged about 60
years, R/at Keelakotai Village,
Chinnalpatti Taluk, Dindigal District,
Tamil Nadu.
2a) Smt.J.Sulochana, W/o
Jagannath, Aged about 38 years,
R/at Keelakotai Village, Chinnalpatti
Taluk, Dindigal District, Tamil Nadu.
(By Sri.V.B.S., Advocate)
Vs.
Defendants: 1. K.B.Subramanian, S/o
K.S.Gopalakrishnan, Major,
R/at No.103, West Park
2 O.S.No.1242/1998
Apartments, 14-A Cross, 11th
Main, Malleshwaram,
Bangalore - 560 003.
2. K.B.Lakshminarayanan, S/o
K.S.Gopalakrishnan, Major,
R/at No.103, West Park
Apartments, 14-A Cross, 11th
Main, Malleshwaram,
Bangalore - 560 003.
3. Mrs.Deepa Swaminathan,D/o
Swaminathan, Major, R/at
No.1933, 30th Cross, 9th Main,
Banashankari 2nd Stage,
Bangalore - 560 070.
4. Sri.A.Chinnappa Reddy, S/o
Appayana Reddy, Major,
Chairman, T.E.S.Institution,
Vijaya Bank Road, Outer Ring
Road, R.M.Nagar Main Road,
Doddabanaswadi, Bangalore -
560 043.
(Sri.Y.S.R., Advocate for D1 to
D4)
Date of institution of suit 07.02.1998
Nature of the suit Declaration & Permanent
Injunction
Date of commencement 20.08.2009
of recording of evidence
Date on which Judgment 23.11.2017
was pronounced
Total duration Days Months Years
16 09 19
3 O.S.No.1242/1998
/ JUDGMENT /
The above suit is filed by the plaintiff seeking the
relief of declaration to declare that the plaintiff is the
absolute owner in possession of the entire extent of 10
guntas excluding public road in survey No.113/1 of
Horamavu village, Krishnaraja Puram Hobli, Bangalore
South, restraining the defendants, their men, agents,
servants etc., from interfering with plaintiff's peaceful
possession and enjoyment of suit schedule property by
means of permanent injunction and to grant such other
relief and cost of the suit.
2. In brief, the case of the plaintiff reads as
under:-
Schedule of the suit property
All the piece and parcel of property measuring
10 guntas excluding public road out of Sy. No. 113/1,
situated at Horamavu Village, Krishnarajapuram Hobli,
Bangalore South Taluk bounded on the:
4 O.S.No.1242/1998
East by : Rajakaluve and ring road.
West by : Chikkathayamma's property.
North by : Appannareddy's property.
South by : Bodanna Muniswamy's Property.
That the plaintiff is the absolute owner in
possession and enjoyment of above suit property having
purchased the same under sale deed dated: 17.7.1996
from Smt.Chikkathayamma, and her four sons through
their General Power of Attorney holder Babureddy, son
of Chikkavenkatappareddy. That the vendors of the
plaintiff have acquired right and title in respect of the
property through partition deed dated: 4.2.1958 among
the husband of Chikkathayamma and his brother. In
pursuance to the registered sale deed dated:17.7.1996.,
the khatha of suit property has been mutated in the
name of plaintiff. The plaintiff has also put up a small
shed in the suit schedule property after obtaining
necessary permission from the competent authorities.
That the plaintiff is in uninterrupted possession of the
5 O.S.No.1242/1998
suit property. That the 10 guntas of land ad-measures
5321 sq.ft. towards South, bounded on the East by
Government Kaluve, West 20' road, North 20' road and
on South private property, measuring East-West 50'
North-South 105' consisting construction in one side put
up by the plaintiff and another extent of land measuring
3617.88 sq. ft. East - West 43' and 20' on the Southern
side, East-West 25' on the Northern side and North -
South on the Eastern side 76' and North-South on
Western side 90' consisting constructions made by the
plaintiff are in his possession and enjoyment. The
plaintiff has inducted a tenant in one portion of the
property on the basis of rent agreement
dated:20.12.1999.
3. Plaintiff submits that there are compound wall
constructed on both the portions of the property on 3
sides. Since, there is a Kaluve on the Eastern side a
compound wall could not be constructed. However, it
has been protected by the plaintiff. Likewise, on the
6 O.S.No.1242/1998
other portion measuring 3617.88 sq.ft. wall has been
constructed and a portion has been left vacant. The
plaintiff is putting up construction of a compound wall
and providing gate facing Eastern side of the property
towards the service road. Such being the state of
affairs, the defendants No.1 to 3 who have no manner of
right, title, interest or possession in respect of the
schedule property are trying to interfere with the
peaceful possession and enjoyment of suit schedule
property by the plaintiff. That on 13.1.1996, the
defendants along with their henchmen came near the
suit schedule property and started interfering with the
plaintiff's peaceful possession and enjoyment of the suit
schedule property. They also tried to dispossess the
plaintiff from the suit schedule property. The plaintiff
resisted the high handed and illegal acts of the
defendants with the help of neighbourers. He also
lodged a police complaint before the concerned police,
but the police informed the plaintiff to approach Civil
7 O.S.No.1242/1998
Court for necessary relief. Therefore, he is constrained
to file the above suit for the relief of declaration and
permanent injunction.
4. After the receipt of suit summons, the
defendants No.1 to 3 have appeared through their
Counsel and filed the written statement contending that
suit of the plaintiff is not maintainable in law. It is
contended that the General Power of Attorney said to
have been executed in favour of Babureddy by Smt.
Chikkathayamma and her four sons is concocted.
Under the alleged General Power of Attorney
Babureddy did not get any right, title or interest whether
absolute or limited in respect of property lawfully owned
and enjoyed by these defendants. The property
possessed, owned and enjoyed by these defendants are
shown in the schedule to the written statement as 'A' 'B'
'C' respectively. It is submitted by the defendants that
under the guise of fraudulent General Power of Attorney
Sri.Babureddy is said to have sold the plaint schedule
8 O.S.No.1242/1998
property in favour of the plaintiff. When the General
Power of Attorney holder did not had any interest in any
of the portion of the property bearing survey No.113/1,
the question of alienating any of the portion of the same
has no sanctity of law and under the alleged sale deed
dated: 17.7.1996 no manner of right, title and interest
what so ever is vested in favour of the plaintiff. It is
submitted that the alleged power of attorney dated:
4.3.1985 and the alleged sale deed dated: 11.7.1996
has neither affected the lawful and absolute right in
respect of the written statement schedule properties nor
the said documents have acted against the legal status
of these defendants. That the schedule mentioned in
the plaint is absolutely wrong and improper. From the
description found in the plaint schedule the property said
to have been acquired, cannot be made out as the same
is unidentifiable. In the absence of the proper
identification of the property the suit has no legs to stand
in the eye of law. It is submitted that under the guise
9 O.S.No.1242/1998
of frivolous sale deed dated: 17.7.1996 some
documents like RTC., khatha, tax paid receipts are
created by the plaintiff and said documents would not
vest any right, title or interest in favour of the plaintiff.
5. It is submitted that the defendants 1 to 3 are
the owners of written statement A, B and C schedule
properties respectively. The vendors of these
defendants ie., Smt.Chikkathayamma and her four sons
through their General Power of Attorney holder
Sri.G.Krishnareddy, son of Sri.Jagama Reddy, sold 'A'
to 'C' schedule properties in favour of defendants No.1
to 3 under the sale deed dated: 11.7.1988. That from
the date of purchase of A, B and C schedule properties,
the defendants are in uninterrupted absolute physical
possession and enjoyment of the same. That adjacent
to the property owned by the 3rd defendant, the property
retained by General Power of Attorney holder
Sri.J.Krishnareddy is situated and that he has agreed to
10 O.S.No.1242/1998
sell his portion of the property in favour of 3rd defendant.
That the defendants No.1 to 3 are closely related to
each other and all of them joined together and have put
up the common compound wall including the property
owned by Sri.J.Krishnareddy in a portion of 'C' schedule
property. A small shed has also been put up by them
for the use of the watchman to safeguard and protect
the entire property.
6. The defendants submitted that as on the
date of the purchase of the property owned by them it
was converted for residential purpose under the
conversion order dated: 9.1.1971 passed by the
Tashildar, Bangalore South and the residential lay out in
respect of the entire property bearing survey No.113/1
was formed with the approval and sanction made by the
administrator to Horamavu village panchayath,
Bangalore South Taluk dated: 27.2.1983. That the
plaintiff or any person claiming through him has no
semblance of right, title or interest in respect of the
11 O.S.No.1242/1998
property which is in the lawful possession and
enjoyment of these defendants. The claim of the
plaintiff that he has put up the shed and compound is
absolutely false. It is denied that on 13.1.1998 these
defendants threatened and tried to interfere with
plaintiff's possession over the suit property. Per contra,
it is a fact that the plaintiff, his General Power of
Attorney holder along with their henchmen tried illegally
usurp and transgress to the lawful possession and
enjoyment of the property held by these defendants.
Said excessive act of the plaintiff and his men were
successfully prevented by these defendants and in this
connection, they had also lodged a complaint before
Ramamurthynagar police station, Bangalore. There is
absolutely no cause of action for the plaintiff to file the
above suit. The suit filed by the plaintiff for the relief of
permanent injunction in the absence of declaratory and
possessory reliefs is also not maintainable and
sustainable in law. Accordingly, among these and other
12 O.S.No.1242/1998
grounds, defendants No.1 to 3 have prayed to dismiss
the suit with exemplary costs.
7. On perusal of records it is seen that originally
plaintiff filed this suit for the relief of permanent
injunction and during the pendency of the suit he got
converted the suit for the relief of declaration of title and
injunction. After the amended plaint filed by the plaintiff,
the defendants No.1 and 2 filed additional written
statement contending that the suit of the plaintiff is not
maintainable, as the relief sought by the plaintiff is
declaratory relief and they should have sought the said
declaratory relief within 3 years from the date of right to
sue accrues as required under Article 58 of the
Limitation Act. The plaintiff has filed amendment
application after the lapse of limitation period and
therefore, suit is liable to be dismissed, as time barred.
It is denied that the plaintiff is absolute owner in
possession of entire extent of 10 guntas of land
excluding public road in survey No.113/1. It is
13 O.S.No.1242/1998
contended that the plaintiff was never in possession of
the property in question and these defendants have
purchased the property earlier to the plaintiff. The
present market value of the suit schedule property is
Rs.1,500/- per sq.ft. and suit is not properly valued. The
Court fee paid by the plaintiff is insufficient and on this
ground also suit of the plaintiff is liable to be dismissed
and accordingly, defendants have prayed to dismiss the
suit.
8. Originally plaintiff filed the above suit against
defendants 1 to 3. During the pendency of the suit, the
plaintiff filed application to implead the defendant No.4
as party to this suit and said application came to be
allowed and he has been impleaded. Thereafter, the
defendant No.4 filed written statement contending that
the suit of the plaintiff is not maintainable either in law or
on facts. The defendant No.4 submits that originally the
land bearing survey No.113/1 of Horamavu village
measuring 4 acres 5 gunta belonged to one
14 O.S.No.1242/1998
Ramaswamy Reddy of Banaswadi village, subsequent
to his death his wife Chikkathayamma and his sons viz.,
Nagaraja Reddy, Raja Reddy, Chandra Reddy and
Venkatesh Reddy have filed an application before the
Deputy Commissioner, Bangalore District, for
conversion of the said land from agriculture purpose to
non-agriculture purpose. The Deputy Commissioner,
Bangalore District by his order dated: 2.12.1970 directed
the office of the Tashildar, Bangalore South Taluk to
issue conversion certificate by receiving the amounts
towards the conversion charges. Accordingly, the
conversion charges have been paid and the Tashildar
Bangalore South Taluk issued the conversion certificate
dated: 9.1.1971 covering the land in survey No.113/1 for
an extent of 4 acres 5 guntas from agricultural purpose
to non agricultural purpose. After the conversion of the
said land, the original owners have formed the layout
consisting of 95 sites and they themselves have sold 50
sites in favour of different persons and retained 5 sites
15 O.S.No.1242/1998
for their personal use and in respect of rest of the 40
sites they have executed the General Power of Attorney
in favour of Dayalu, Krishnareddy etc., authorizing them
to sell the said sites. Dayalu sold site Nos.46, 47 and
48 measuring East West 50' and North South 100' in
favour of Ryneer Peter Pinto and his wife Smt.Mary
Pinto and put them in possession of the said sites. The
Ryneer Peter Pinto and Mary Pinto left India and settled
at Dubai. They have executed a General Power of
Attorney in favour of this defendant authorizing him to
manage the said property. Accordingly, this defendant
is in possession of the property. That one Krishna
Reddy of Channasandra village obtained a power of
attorney from the original owner in respect of site
Nos.42, 43, 44 and 45 and in turn he executed a
registered sale deed in favour of defendant No.1 in
respect of site No.45 measuring East to West 55' North
to South 35' and 1st defendant is in possession of said
property. So also he sold site bearing No.44 measuring
16 O.S.No.1242/1998
East West 55' and North South 30' in favour of 2nd
defendant and 2nd defendant is in possession of site
No.44. So also Krishnareddy sold site No.43 measuring
East to West 55' North South 30' in favour of defendant
No.3 and he is in possession of the same. Site No.42 is
in possession of Krishnareddy who is not party to this
proceeding. Hence, the suit is liable to be dismissed on
the ground of non-joinder of necessary parties.
9. It is stated that the original owner have
executed a power of attorney in respect of site Nos.49
and 50 measuring 60' x 50' in favour of one Narona and
in turn Narona executed a sale deed in favour of Haji
Bilal Ahamed and Smt.Bulkis Begaum @ Lalu and
subsequently the said Bilal Ahamed and Lalu sold in
favour of one Usha. Said Usha in turn sold the same in
favour of Ramachandra and in turn Ramachandra sold
the same in favour of Balakrishna Reddy. Balakrishna
Reddy is in possession of said sites and plaintiffs have
not made him as a party. That the boundaries
17 O.S.No.1242/1998
mentioned in the plaint schedule covers 29 guntas
including site Nos.42 to 53 and 25' road which is not in
possession of the plaintiffs. Though, the suit schedule
property is not in existence, the plaintiff has filed false
suit. Plaintiffs are not the bonafide purchasers, as they
have purchased this property after lapse of 10 years
from the earlier sale. The plaintiffs have filed a suit in
O.S.No.2171/2004 against this defendant and one
Krishnareddy which came to be dismissed on merit on
28.1.2008. Hence, the present suit is barred by res-
judicata. The suit of the plaintiff is also hit by Article 58
of Limitation Act and liable to be dismissed as time
barred. The suit of the plaintiff without seeking relief of
possession of the property is not maintainable.
Accordingly, among these and other grounds, defendant
No.4 has also prayed to dismiss the suit.
10. From the above pleadings of the parties, my
Learned Predecessor in office has framed the following
issues:
18 O.S.No.1242/1998
1. Whether the plaintiff proves that he was
in lawful possession of the suit schedule
property as on the date of filing the suit?
2. Whether the plaintiff proves alleged
interference by the defendants?
3. Whether the plaintiff is entitled to the
relief of permanent injunction as prayed
for?
4. What decree or order?
ADDL ISSUES FRAMED ON 28.02.2006
1. Whether plaintiff proves that he is
entitled for Declaration that he is owner
of suit schedule property?
2. Whether defendants prove that prayer of
Declaration is barred by limitation?
Additional issues no. 3 to 5 framed on
05.06.2012
3. Whether the defendant No. 4 proves that
the suit is barred by res-judicata as
contended in para-9 of the written
statement?
4. Whether the suit is properly valued and
court fee paid is Sufficient?
5. Whether the defendant No. 4 proves that
suit is not maintainable against him as
plaintiffs have not sought any relief
against him?
19 O.S.No.1242/1998
Additional issues framed on 03.11.2015
1. Whether the plaintiff proves that the suit
is maintainable on the ground of non-
joinder and mis-joinder of necessary
parties?
2. Whether the plaintiff proves that the suit
for mere seeking relief of declaration is
maintainable without seeking a relief of
possession?
11. During pendency of the suit original plaintiff
died and his wife and daughter are brought on record as
plaintiffs No.1(a) & 2(a). In order to prove their case, the
plaintiff No.2 (a) is examined herself as P.W.1 and got
marked documents as per Exs.P1 to P58 and closed
their side of evidence. On behalf of the defendants,
defendant No.4 got examined himself as DW-1 and got
marked documents as per Exs.D-1 D-38. Defendant
No.2 got examined himself as DW-2 and examined one
witness as DW-3 and closed their side of evidence.
12. Heard the arguments on both sides and
perused the records.
20 O.S.No.1242/1998
13. On careful consideration of the pleadings, the
oral and documentary evidence on record and the points
urged during the course of arguments, I answer the
above issues as under:-
Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : In the negative
Issue No.4 : As per final order
for the following:
Addl. Issues framed on 28.2.2006
Issue No.1 : In the negative
Issue No.2 : In the negative
Addl. Issues 3 to 5 framed on 5.6.2012
Issue No.3 : In the negative
Issue No.4 : In the affirmative
Issue No.5 : In the negative
Addl. Issues framed on 3.11.2015
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
21 O.S.No.1242/1998
REASONS
14. Issue No.1 and Addl.issue No.1
dated:28.2.2006:- These two issues are taken up
together for consideration as they are interlinked with
each other.
The above issues are framed casting burden on
the plaintiff to prove that he is owner and in lawful
possession of the suit schedule property as on the date
of the suit.
15. It is the case of the plaintiff that he is
absolute owner and in possession of suit property
measuring 10 guntas out of survey No.113/1 of
Horamavu village, K.R.Puram Hobli, Bangalore South,
having purchased the same under the sale deed dated:
17.7.1996 from one Babureddy, son of
Chikkavenkatappareddy - the General Power of
Attorney holder of Smt.Chikkathayamma and her sons.
22 O.S.No.1242/1998
16. The defendants No.1 to 3 have denied that
the plaintiff is owner and in possession of suit property
as described in the plaint and specifically contended that
the defendants No.1 to 3 are owners and in possession
of written statement schedule 'A' to 'C' site properties
formed out of survey No.113/1 of Horamavu village and
thereby denied the case of the plaintiff. The defendant
No.4 has also claimed possession and enjoyment of
sites No. 46, 47 & 48 formed in survey No.113/1 and
thereby denied the claim of the plaintiff.
17. In order to prove their claim on the side of
plaintiff, plaintiff No.2(a) the daughter of original plaintiff
appeared before the Court and filed her testimonial
affidavit as Pw.1. In her evidence, she has reiterated
the plaint averments and specifically deposed that her
father was the absolute owner and in continuous
possession of property to an extent of 10 guntas
Including public road in survey No.113/1 and after the
23 O.S.No.1242/1998
death of her father they have become owners & in
possession of suit property.
18. In support of her oral evidence, Pw.1 got
marked the certified copy of General Power of Attorney
executed by her father in favour of her husband
Jaganathan as per Ex.P1. She got marked certified
copy of sale deed dated 17.07.1996 in respect of suit
property as per Ex.P2 and death certificate of her father
Shankaran and its English version as per Exs.P3 and
P4 respectively. She also got marked mutation extract,
RTC extracts, encumbrance certificates, khatha
certificate and khatha extract as per Exs.P5 to P12 and
tax paid receipts as per Exs.P13 to P17. She got
marked orders passed by BESCOM in respect of
electricity connection in the name of plaintiff as per
Exs.P18 and P19. She got marked certified copy of
tippani, revenue sketch as per Exs.P20 and P21,
endorsement issued by Commissioner, Bangalore North
as per Ex.P22, settlement Akar band extract as per
24 O.S.No.1242/1998
Ex.P23, KEB bills and receipts as per Exs.P24 to P33.
She also got marked permission letter issued by Indian
Oil Corporation Limited in her favour to run the petrol
bunk as per Ex.P34, endorsement issued by BDA.,
dated: 14.10.2005 as per Ex.P35. Lastly, she got
marked photographs along with negatives as per
Exs.P36 to P39 and 36a to 39a and certified copy of
complaint lodged against defendants as per Ex.P40.
19. Subsequently, Pw.1 produced and got marked
another 11 documents i.e., General Power of Attorney
dated:4.3.1985 executed by Chikkathayamma and her
sons in favour of their vendor-Babureddy as per Ex.P41,
the endorsement issued by Tashildar dated: 14.9.1998
in favour of Guruthayamma stating that land was not
converted for non agricultural purpose as per Ex.P42,
telephone bill, water bill and receipts as per Exs.P43 to
P46 respectively. She also got marked photographs of
suit property including that of petrol bunk as per
Exs.P47 to 52 and C.D., pertaining to said photos as per
25 O.S.No.1242/1998
Ex.P53. She got marked lay out plan of survey
No.113/1 as per Ex.P54 and endorsement
dated:2.12.2009 as per Ex.P55, certified copy of order
sheet, plaint and memo in O.S.No.7657/2002 as per
Exs.P56 to P58.
20. During cross-examination, PW1 pleads
ignorance that children of Chikkathayamma formed lay
out in survey No.113/1 during the year 1986-87, but she
denied that having formed layout, they had sold 50 sites
and 25 sites were given to General Power of Attorney
holder by name Krishnareddy and another 25 sites in
favour of another General Power of Attorney holder by
name Dayalu. When she is questioned that, sites
No.43, 44 and 45 were sold to defendants No.1 to 3 she
states that there are no such sites formed by owners of
survey No.113/1 and therefore, she does not know
which sites have been sold. She also gave same
answer when it is questioned that another General
Power of Attorney holder by name Dayalu sold sites
26 O.S.No.1242/1998
No.46 to 48 in favour of one Ryneer Peter Pinto and
Smt.Mary Pinto. She denied that from the date of their
respective purchase the above persons are in physical
possession and enjoyment of said sites. She denied
that to the East of suit property there is a petrol bunk in
survey No.111. She states that petrol bunk is situated
in portion of survey No.111 and the suit property. She
denied that photographs produced by her as per
Exs.P47 to P52 and electricity bills are pertaining to
survey No.111. Lastly, she denied that they are
claiming suit property which does not exists in survey
No.113/1 but exists in survey No.111.
21. Plaintiffs have examined the General Power
of Attorney holder of their vendor Babureddy as Pw.2, In
his evidence PW2 has stated that
Smt.Chikkathayamma, and her children by name
Sri.Nagaraja Reddy, Sri.Raja Reddy, Sri.Chandra
Reddy and Sri. Venkatesh Reddy executed power of
attorney in his favour to execute an absolute registered
27 O.S.No.1242/1998
sale deed pertaining to an area measuring 10 gunta in
survey No.113/1 of Horamavu village, K.R.Puram Hobli,
Bangalore South Taluk. He states that the power of
attorney is coupled with interest for consideration and he
had paid entire sale consideration amount to the owners
of the property to enable them to empower him to
convey right, title and interest in the property in favour of
any person interested in purchase of said property. The
plaintiff Sri.S.S.Shankar approached him through his
son-in-law Jagannath to purchase the property. After
negotiations the amount of consideration was fixed and
accordingly, he sold the said property to
Sri.S.S.Shankar. Under the said sale deed possession
was handed over to S.S.Shankar. Thereafter, khatha in
respect of property was entered into the name of
S.S.Shankar on the basis of no objection letter given by
him, which he obtained from earlier owners. After the
death of S.S.Shankar, the earlier owners of the property
have executed a no objection letter and the khatha of
28 O.S.No.1242/1998
property stood transferred into the name of
Smt.Mallamma and her daughter ie., wife and daughter
of late S.S.Shankar. He identified Ex.P41 as the
General Power of Attorney executed by
Chikkathayamma and her sons in his favour.
22. During cross-examination, PW2 has denied
that one Ramaswamy Reddy got converted land in
survey No.113/1 and thereafter, his wife and children
formed 95 sites therein. However, he pleads ignorance
that General Power of Attorney holder of
Chikkathayamma and her children by name Krishna
Reddy and N.Dayalu have sold site Nos.43 to 45 in
favour of defendants No.1 to 3 and sites Nos.46, 47 and
48 in favour of one Ryneer Peter Pinto and Mrs.Mary
Rayneer Peter Pinto. He denied that on the basis of this
sale transaction, Rayneer Peter Pinto and his wife have
built compound around this property. But, he pleads
ignorance that the purchasers of sites No.49 and 50
29 O.S.No.1242/1998
have constructed 3 storied building in site Nos.49 and
50 and said property is part and parcel of suit property.
He denied that himself and his Aunt Chikkathayamma
and her children got created General Power of Attorney
and sold 10 guntas of land to S.S.Shankar and thereby
cheated him.
23. As noted above, the defendants have denied
the ownership as well as the possession of the plaintiff
over the suit property as described in the plaint and
contended that they are owners and in possession of
written statement schedule 'A' 'B' and 'C' properties. In
order to prove their contentions, at the first instance the
defendant No.4 has appeared before the Court and
examined himself as Dw.1, wherein he has stated that
the plaintiff was never in possession of the property in
Sy.No. 113/1 as described as these defendants have
purchased the property in survey No.113/1 earlier to the
30 O.S.No.1242/1998
purchase by the plaintiffs. Accordingly, he has prayed
to dismiss the suit with exemplary costs.
24. In support of his oral evidence, D.W.1 got
marked the original registered sale deed dated:
1.7.1988 executed by J. Krishna Reddy in favour of
defendant No. 1 as per Ex.D1, demand register extracts
as per Exs.D2 to D4, the registered sale deed dated:
11.7.1988 executed by J. Krishna Reddy in favour of
defendant No.2 as per Ex.D5, tax paid receipts as per
Exs.D6 to D8, demand register extract as per Exs.D9
and D10, copy of the complaint as per Ex.D11,
acknowledgement issued by police as per Ex.D11a, tax
paid receipts as per Exs.D12 to D14. He also got
marked the original registered sale deed dated:
11.7.1988 executed J. Krishna Reddy in favour of
defendant No. 3 as per Ex.D15, demand register extract
as per Exs.D16 to D18, tax paid receipts as per Exs.D19
to D21. He produced certified copy of sale deed dated:
17.8.1988 executed as per Ex.D22, tax paid receipt as
31 O.S.No.1242/1998
per Exs.D23 and D24, demand register extract as per
Exs.D25 and D26, RTC extract as per Ex.D27. He got
marked photograph to show the topography of the
property with C.D. as per Exs.D28 and D29. He also
got marked the certified copy of the lay out plan as per
Ex.D30. Subsequently, he produced 3 photographs
with C.D., to show that there is a construction in site
Nos.49 and 50 in survey No.113/1 as per Exs.D31 and
32. He got marked certified copy General Power of
Attorney dated 04.04.1998 as per Ex.D33, certified
copy of sale deed dated: 19.2.2003 executed by
Smt.Usha in favour of one Ramachandran as per
Ex.D34, certified copy of sale deed sale dated
22.02.2004 executed by Ramachandran in favour of
Balakrishnareddy in respect of site Nos.49 and 50 as
per Ex.D35 and states that Babureddy is a consenting
witness in Ex.D35 sale deed. He also got marked
certified copy of the sale deed dated 17.02.1993 in
respect of site Nos.49 and 50 as per Ex.D36 and
32 O.S.No.1242/1998
certified copy of sale deed dated: 18.1.1989 as per
Ex.D37. He also got marked the original General Power
of Attorney dated: 8.8.1988 executed by
Chikkathayamma and others in favour of Dayalu in
respect of site Nos.46, 47 and 48 as per Ex.D38.
25. During cross-examination DW1 denied that
plaintiff S.S.Shankar is the owner of 10 guntas of land,
but pleads ignorance that Ex.P2 sale deed is executed
in the name of S.S.Shankar. He denied that plaintiff
Sulochana is running petrol bunk in the suit property.
He states that said petrol bunk is in survey No.111. He
admitted that he has not objected for change of khatha
in respect of survey No.113 in the name of plaintiff and
pleads ignorance that plaintiffs are paying tax in respect
of suit property regularly. He denied that Horamavu
Gramapanchayath has issued endorsement as per
Ex.P42 stating that no lay out plan is formed in survey
No.113. He pleads ignorance as to who is possessing
original lay out plan.
33 O.S.No.1242/1998
26. The defendant No.2 has also appeared and
filed his testimonial affidavit as Dw.2, wherein, he states
that he is the absolute owner of written statement 'B'
schedule property bearing site No.44 formed out of
survey No.113/1 of Horamavu village and defendants
No.1 and 3 are absolute owners of site Nos.45 and 43 in
the same survey number and they are in peaceful
possession and enjoyment of their respective properties
by constructing common compound. He identified
Ex.D15 as the sale deed executed by J.Krishna Reddy
in his favour and stated that Exs.D16 to D21 are the tax
paid receipts and assessment register extract
pertaining to his property. He also identified Exs.D1 to
D14, as the sale deed and revenue documents
pertaining to property of defendants No.1 and 3 and
Ex.D11 as the copy of complaint lodged by them.
27. During cross-examination, DW2 pleads
ignorance that Chikkathayamma and others had
retained 10 guntas of land in their possession. But,
34 O.S.No.1242/1998
denied that the said 10 guntas of land was sold by them
in favour of plaintiff S.S.Shankar. He pleads ignorance
that S.S.Shankar was put in possession of 10 guntas of
land on 17.7.1996. He denied that there is a petrol
bunk located in the above said 10 guntas of land. He
states that there is no petrol bunk in survey No.113/1.
He admits that some of the sites were taken away
during road widening but denied that their sites are not
in existence in survey No.113/1.
28. The defendants have examined the General
Power of Attorney holder of Chikkathayamma and her
children by name J.Krishna Reddy as Dw.3 who in his
evidence has stated that Smt.Chikkathayamma and her
children have executed General Power of Attorney
dated: 4.7.1988 in respect of site Nos.42, 43, 44 and 45
in Sy. No. 113/1 in his favour and in turn he has sold site
Nos.45, 44 and 43 in favour of defendants No.1 to 3 by
executing sale deed as per exhibit D1,D5, and D15 and
put them in possession of their respective sites. He has
35 O.S.No.1242/1998
retained site No.42 and in peaceful possession and
enjoyment of the same. He identified Ex.D33 as the
General Power of Attorney executed by
Chikkathayamma and her children in his favour.
29. During cross-examination, Dw3 states that
he has no documents in respect of approved lay out
plan and the conversion order in respect of property
measuring 4 acre 5 gunta in survey No.113/1. But,
denied that property in survey No.113/1 was not
converted. He denied that signature of
Chikkathayamma was obtained on a blank paper and
subsequently, same has been created as General
Power of Attorney marked at Ex.D33. He admitted that
Pw.1 Sulochana is running a petrol bunk. But, denied
that said petrol bunk is situated in survey No.113/1. He
admits that they have not challenged mutation entries in
the name of plaintiff or Pw.1 Sulochana. He denied that
he has executed false sale deeds without there being
any khatha in respect of alleged sites. He also denied
36 O.S.No.1242/1998
that the sites sold by him in favour of defendants No.1 to
3 does not exists in 10 guntas of property in survey
No.113/1.
30. The Learned Counsel for plaintiff relied
upon decisions reported in (2016)1 SCC 530 between
Vasanth Balu Patil and others Vs. Mohan Hirachand
Shah and others, AIR 2001 Supreme Court 623
between Manoji Rao Vs. T.Krishna and others, AIR
1967 Supreme Court 436 between Vemareddi
Ramaraghava Reddy and others Vs. Konduru Sheshu
Reddy and others and argued that the plaintiffs have
established their case and prayed to decree the suit.
31. The Learned Counsel for defendants at the
outset vehemently argued that the property as described
in the plaint schedule is not in existence and therefore
plaintiffs are not entitled for the relief of declaration and
injunction. It is argued that defendants are in
possession and enjoyment of their site in sy.no.113/1 by
37 O.S.No.1242/1998
putting certain constructions. Plaintiff is claiming
existence of shed and petrol bunk in the suit property
without any pleadings to that effect in their plaint. It is
argued that if the General Power of Attorney produced
by the plaintiffs is considered the age of the General
Power of Attorney holder as on that date would come to
16 years and hence, it shows that said document is
created one. It is also argued that Pw.1 in her evidence
has admitted that the petrol bunk is in survey No.111,
whereas, property claimed by them is in survey No.113
and therefore, it is clear that plaintiffs are not having
clear idea about existence of their property. It was
also argued that the endorsement issued by the
Tashildar during 2016 stating that no lay out was formed
in survey No.113/1 cannot be believed in the absence of
his evidence before the Court. The plaintiffs have not
taken any steps for appointment of court commissioner
to identify the suit property. The property was no more
an agriculture property and the revenue records will not
38 O.S.No.1242/1998
confirm any title infavour of plaintiffs. The plaintiffs have
not at all established identity of the suit property and
therefore, they are not entitled for the relief of
declaration or injunction as sought. Accordingly, prayed
to dismiss the suit.
32. I have perused the decisions and the
principles laid down therein and considered the
arguments of learned counsels for plaintiffs and
defendants. In the decisions cited by the Learned
Counsel for plaintiff it is held that plaintiff basing his
claim on letter of allotment and possession certificate
issued by development authority in respect of suit
premises and on the contrary if defendant admitting title
of the plaintiff, plaintiff has possessory right over
property and a declaration to that effect has to be given.
It is held that Section 42 of Specific Relief Act is not
exhaustive of the case in which declaratory decree may
be made and the Courts have power to grant such a
decree independently of the requirement of the section.
39 O.S.No.1242/1998
It is held that whether the further relief claimed in a
particular case as a consequential upon a declaration is
adequate always, depend upon the facts and
circumstances of each case.
33. In this case, on perusal of pleadings, both
oral and documentary evidence and also the grounds
urged by the Learned Counsels appearing for the
parties, it is seen that originally property measuring 4
acre 5 gunta in survey No.113/1, was belonged to
Chikkathayamma and her children. The plaintiff is
claiming to be the owner and in possession of 10 guntas
of land out of survey No.113/1 on the basis of sale deed
marked at Ex.P2. Ex.P2 sale deed dated:17.7.1996
shows that the General Power of Attorney holder of
Chikkathayamma and her children by name Babureddy
has sold property measuring 10 guntas excluding public
road in survey No.113/1 situated at Horamavu village,
K.R.Puram Hobli, Bangalore in favour of S.Shankar.
40 O.S.No.1242/1998
Ex.P4 shows that original plaintiff S.S.Shankar died and
the plaintiff on record are his legal heirs.
34. As per Ex.P5 M.R.No.7/96-97 the name of
plaintiff S.S.Shankar was ordered to be entered for 10
guntas of land in survey No.113/1 subject to
measurement. Exs.P6 and P7 shows that land
measuring 4 acres 5 gunta in survey No.113/1 was
entered in the name of Chikkathayamma and her
children for the year 1993-1994 and 1995-1996. Ex.P8
RTC extract for the year 1997-1998 shows that the
name of plaintiff S.S.Shankar is entered in the RTC
extract of survey No.113/1 for 10 guntas as per
M.R.No.7/96-97. As per Exs.P9 and 10 the name of
plaintiff is also entered in the encumbrance certificate for
10 guntas in survey No.113/1.
35. Exs.P11 and P12 shows that the name of
plaintiff No.2(a) Smt.Sulochana is entered in the khatha
41 O.S.No.1242/1998
pertaining to land bearing Municipal New No.6 service
road, ring road Banaswadi, Bangalore, with PID No.88-
364-6. Exs.P13 to P17 shows that the plaintiffs have
paid tax in respect of Property ID No.88/364/6.
Exs.P18 and 19 shows that plaintiff obtained electricity
connection in respect of property at Doddabanaswadi,
Bangalore and has been paying electricity charges as
per Exs.P25 to P33. Exs.P20 and P21 are Atlas copies
show the bifurcation of property of survey No.113 as
113/1 and 113/2. Ex.P22 endorsement issued by
Assistant Commissioner indicates that there are no
cases in respect of sale in violation of Section 79 (a) and
(b) of Karnataka Land Reforms Act in respect of land in
survey No.113/1. Ex.P23 settlement Aakar band
issued on 11.2.2003 shows the total extent of land in
survey No.113/1 as 4 acres 5 gunta. Exs.P36 to 39
and P40 copy of the complaint shows that plaintiff had
lodged complaint against one Chinnappareddy and
Krishnareddy and others alleging interference by them
42 O.S.No.1242/1998
in respect of land in survey No.113/1 measuring 10890
sq.ft. at Doddabanaswadi, K.R.Puram Hobli, Bangalore
South Taluk.
36. Ex.P41 shows that Smt.Chikkathayamma
and her sons have executed General Power of Attorney
in favour of Babureddy aged about 18 years in respect
of property measuring 10 guntas in survey No.113/1 of
Horamavu village on 4.3.1985. Exs.P42 and P55
endorsement indicates that the land in survey No.113/1
was not converted and there is no approved lay out plan
pertaining to said property. Lastly, Exs.P56, 57 and 58
shows that one Lakshmamma had filed suit against one
Nagaraja reddy and others and subsequently, same has
been withdrawn by her.
37. On perusal of the documents produced by
defendants, it is seen that the defendants No.1 to 3
have purchased site Nos.45, 44 and 47 in survey
No.113/1 of Horamavu village, K.R.Puram Hobli,
43 O.S.No.1242/1998
Bangalore South Taluk, from one J.Krishna Reddy, the
General Power of Attorney holder of Chikkathayamma
and her sons. The defendants have also produced
demand register extract for the year 1996-1997,
wherein, their names are entered for the sites
purchased by them. As per Exs.D6 to 8, 12 to 14 and
19 to 21 the defendants No.1 to 3 have paid taxes
before the Horamavu village panchayath from the year
1988-1989 to 1997 - 1998. The defendants have also
produced certified copy of lay out plan as per Ex.D30
which shows that a private lay out has been formed in
survey No.113/1 in the land measuring 4 acres 5 gunta
of Horamavu village, Bangalore South Taluk.
Defendants have also produced the photographs to
show that there is construction in the property
purchased and possessed by them.
38. The Learned Counsel for plaintiffs argued
that the RTC extracts, Khatha entries in the name of
plaintiffs and the contents of sale deed clearly
44 O.S.No.1242/1998
establishes the title and possession of plaintiffs over the
suit property. Defendants herein have not challenged
the mutation proceedings before revenue authorities
and therefore a presumption U/s 128, 129 and 133 of
Karnataka Land Revenue Act and Section 114 A of
Karnataka Municipal Corporation Act has to be drawn in
favour of plaintiffs. It is also argued that the defendants
have not produced any original lay out plan nor
examined the owners of suit schedule property in order
to prove their sale deeds. The Learned Counsel for
plaintiffs argued that under Section 110 of Indian
Evidence Act the burden of proving that plaintiff is not
the owner is on the person who affirms that he is not the
owner. The learned counsel for plaintiff relying upon the
decision reported in AR 2003 SC 1805 between
General Conservator of Forests, Govt. of A.P. V/s
Collector submitted that possession of the property
furnishes prima facie proof of ownership of possessor
and casts burden of proof on the party who denies his
45 O.S.No.1242/1998
ownership and accordingly relying upon said ratio
prayed to decree the suit of the plaintiffs.
39. I have perused the decision cited by the
learned counsel for plaintiff and considered the grounds
urged by the learned counsels appearing for the parties.
It is relevant to note here the decision of the Hon'ble
High Court of Karnataka reported in 2016 (5) KCCR
1233 between Annappa Vs. Lakshmi Devi Devara
Temple and Nulichandayya Devasthan Committee
and others, wherein it is held that in a suit for
declaration of title and for permanent injunction burden
lies on the plaintiffs and the relief of declaration and
permanent injunction cannot be granted solely based
on mutation and other revenue entries as the revenue
entries are relevant only for purpose of paying land
revenue and has nothing to do with the ownership. It is
also relevant to note here the decision of Hon'ble
Supreme Court of India, reported in (2014) 2 Supreme
Cases 269 between Union of India and others
46 O.S.No.1242/1998
Vs.Vasavi Co-operative Housing Society Limited
and others, wherein it is held that in a suit for
declaration of title and possession burden of proof is on
the plaintiffs to establish its case, irrespective of whether
defendants prove their case or not. In the absence of
establishment of its own title, the plaintiff must be non
suited, even if title set up by defendants is found against
them. It is also relevant to note here the decision
reported in ILR 2005 Karnataka 884 between
T.L.Nagendra Babu Vs. Manohar Rao Pawar wherein
it is held that in a suit for declaration and injunction
unless the Court is satisfied with regard to material
details in the light of the material evidence with regard to
the identification of the property no declaration and
injunction can be granted.
40. In this case, as noted above, the plaintiff is
claiming ownership as well as possession over the suit
property measuring 10 guntas in survey No.113/1 on
47 O.S.No.1242/1998
the basis of not only the revenue entries but also on the
basis of registered sale deed. As discussed above,
though originally the plaintiff filed above suit seeking the
relief of permanent injunction, during the pendency of
the suit he got converted suit one into suit for
declaration and included para - 3a wherein they gave
further description of the suit property. In the said para
plaintiff stated that in the 10 guntas of land admeasuring
5321 sq.ft. there is a construction and in another extent
measuring 3617.88 sq.ft. there is a construction put up
by them and they have inducted a tenant on the basis of
rent agreement dated: 20.12.1999. Though a specific
suggestion is made to Dw 1 to Dw 3 that plaintiffs are
running a petrol bunk in suit property, nothing is
mentioned about the same either in the pleadings or
chief examination evidence of PW1. However during
cross examination PW1 denied that to the east of suit
property there is petrol bunk in Sy. No. 111 and states
that petrol bunk is situated in portion of Sy. No.111 and
48 O.S.No.1242/1998
suit property. Hence it is clear that plaintiffs are claiming
some constructions and existence of part of petrol bunk
with in the suit property. No doubt during cross
examination DW1 to DW3 have admitted that plaintiffs
Sulochana is running petrol bunk, but they have
categorically denied that said petrol bunk is situated in
suit property bearing. Sy. No.113/1 and specifically
stated that same is in sy. NO.111. They also claim
possession and enjoyment of sites within the property in
sy. No. 113/1. Hence it is clear that defendants have
disputed the identity of suit property.
41. It is relevant to note here that during cross
examination defendants have admitted that they have
not objected or challenged the revenue entries made in
favour of plaintiffs in respect of 10 guntas of land in sy.
No. 113/1. As rightly argued by the Learned counsel of
plaintiffs possession can be considered as prima facie
evidence of ownership and in this case sale deed and
49 O.S.No.1242/1998
revenue records shows that plaintiff has purchased
property measuring 10 gunta in sy. NO.113/1, but in the
light of rival contentions and registered sale deed in
favour of plaintiff and defendants in respect of property
in very same sy.No., it is incumbent upon the plaintiff to
prove the existence and identity of suit property as
described in the plaint. As discussed above, in this
case as per Ex.P2 the plaintiff has purchased 10 guntas
of land in survey No.113/1 with boundaries towards East
Rajakaluve and ring road, towards West
Chikkathayamma's property, towards North
Appannareddy's property and towards South Bodanna
Muniswamy's property. In the plaint schedule plaintiff
has described the suit property as mentioned in the sale
deed. Admittedly no boundaries are mentioned if the
khatha extract, electricity and tax paid receipts. As per
Ex.P5 mutation order the plaintiffs name is ordered to be
entered for 10 guntas of land in sy. NO.113/1 subject to
measurement. Nothing is placed by the plaintiffs to
50 O.S.No.1242/1998
show that suit property was surveyed and measured at
the time of sale deed or at the time of effecting khatha in
their favour. Further in the encumbrance certificates
marked at Exs.P9 and P10 though the name of the
plaintiff is entered in respect of 10 guntas of land in
survey No.113/1 of Horamavu village, the boundaries
are shown as remaining property of survey No.113/1
towards East, West, North and South which is not in
consonance with the boundaries shown in the sale
deed. Sale deed shows that plaintiffs have purchased
10 guntas of land in sy. NO.113/1 with certain specific
boundaries showing the properties of some third
persons towards north and south, whereas
encumbrance certificate indicates that the plaintiffs have
purchased middle portion of property in sy. NO.113/1 as
it shows boundaries on all the sides as property in sy.
NO.113/1. Hence, there is discrepancy in the
boundaries to the suit property one from the sale deed
to the revenue documents.
51 O.S.No.1242/1998
42. As argued by the Learned counsel for
plaintiff defendants have not examined the original
owners of suit property and they have not challenged
the revenue entries in the name of plaintiffs. However
the issue before the Court is not whether defendants are
owners of suit property. No such issue is framed
therefore plaintiffs must prove that they are owners and
in possession of suit property as described in plaint.
However from the reading of both oral and documentary
evidence it is clear that there are infirmities with regard
to identity of suit property. From the evidence on record
it is not possible to say that plaintiffs are in actual
possession and enjoyment of suit property along with
certain construction and petrol bunk as claimed in the
suit. Plaintiffs have failed to establish that there are
constructions and petrol bunk within the boundaries
shown in the schedule. There is no either hand sketch
or survey report to show that the plaintiffs are in
possession and enjoyment of suit property as described
52 O.S.No.1242/1998
in the schedule. There is no clear and cogent evidence
with regard to existence and actual possession of
property in their possession. Therefore, it cannot be
said that the plaintiffs are the owners and in possession
of suit property as claimed. Hence I am of the opininon
that the plaintiffs have failed to establish issue No.1 and
addl.issue No.1 dated: 28.2.2006. Hence, I answer
Issue NO.1and addl.issue No.1 dated: 28.2.2006 in the
negative.
43. Addl. Issue No.3 dated:5.6.2012:- Addl.
Issue No.3 is framed casting burden on the defendant
No.4 to prove that the suit of the plaintiff is barred by
res-judicata.
In para - 9 of his written statement defendant
No.4 has contended that the plaintiffs have filed a suit in
O.S.No.2171/2004 against this defendant and one
Krishna Reddy for permanent injunction in respect of
the very same property, wherein this defendant and
Krishna Reddy have filed their written statement denying
53 O.S.No.1242/1998
the rights of the plaintiffs. Subsequently, said suit came
to be dismissed on merits on 28.1.2008. Hence, the
suit of the plaintiffs is barred by res-judicata and
accordingly, prayed to dismiss the same. However,
during his evidence, defendant No.4 has not stated
anything regarding this aspect of the matter.
44. The Learned Counsel for defendants
vehemently argued that as admitted by Pw.1, the suit
filed by her seeking the relief of permanent injunction in
respect of very same property is dismissed on merits
and therefore, the present suit is hit by principles of res-
judicata and not maintainable.
45. The Learned Counsel for plaintiff relied
upon decision reported in AIR 2008, Supreme Court
2212 between Williams Vs. Loudersamy and another
and AIR 2000 Supreme Court 3272 between
Gramapanchayath of village Naulakaha Vs. V.Ujaga
Singh and others and argued that though the suit filed
54 O.S.No.1242/1998
by the plaintiff in O.S.No.2171/2004 is dismissed the
appeal preferred against said judgment and decree is
pending. It is also argued that the findings recorded in
earlier suit for permanent injunction does not operate as
res-judicata in a subsequent suit for declaration and
prayed to reject the contention of the defendants.
46. I have perused the pleadings, documents
and evidence in respect of the earlier suit filed by the
plaintiffs. It is relevant to note here, that Pw.1 during her
cross-examination has admitted that herself and her
mother had filed O.S.No.2171/2004 against the
defendant No.4 herein and one Krishna Reddy and said
suit came to be dismissed on merits. When the
judgment and decree and deposition of in
O.S.No.2171/2004 are confronted to P.W.1, she has
admitted the same and the said documents are marked
as per confronted documents Ex.D1 to D3. On perusal
of Exs.D1 to D3 marked as confronted documents it is
clear that the suit filed by Pw.1 and her mother against
55 O.S.No.1242/1998
the defendant No.4 and one Krishna Reddy in respect of
the very same property is dismissed on merits. It is
relevant to note here that in the judgment marked at
Ex.D1, the suit of the plaintiffs has been dismissed by
holding that they have failed to establish possession
over the suit property.
47. In the decision relied upon by the Learned
Counsel for plaintiff noted above reported in AIR 2008
SC 2212 it is held that in a suit for permanent injunction
if there is finding as to possession of plaintiff it does not
bar suit for declaration of title and recovery of
possession. It is held that it is one thing to say that
person is in possession of land in suit and it is another
thing to say that he has a right to possess. In another
decision cited above reported in AIR 2000 S.C.No.3272
it is held that if the earlier decree is collusive it cannot
operate as res-judicata and filing of separate suit for
declaration that decree was collusive is not a condition
precedent for raising such plea. It is also observed that
56 O.S.No.1242/1998
even if in an earlier suit for injunction there is an
incidental finding on title the same will not be binding in
a later suit or proceeding where title directly in question,
unless it is established that it was necessary in the
earlier suit to decide the question of title for granting or
refusing injunction and that the relief of injunction was
found or based on the finding of title.
48. In this admittedly, the defendant Nos.1 to 3
herein were not party to O.S.No.2171/2004 and said suit
was filed only for the relief of permanent injunction .
There was no finding regarding title. Therefore, the
judgment and decree passed therein will not operate as
res-judicata in this case. Hence I hold that defendant
No.4 has failed to establish additional issue No.3. In the
result, I answer additional issue No.3 in the negative.
49. Addl.Issue No.2 dated:28.2.2006:-
Additional issue No.2 is framed casting burden on the
57 O.S.No.1242/1998
defendants to prove that the prayer of the declaration is
barred by limitation.
50. The defendants in their additional written
statement filed after the amendment of the plaint have
contended that the plaintiffs has filed amendment
application seeking amendment of pleadings in the
plaint as well as prayer for declaratory relief on
28.10.2002. The right to sue accrued on 19.2.1998
when the defendants denied right of plaintiff over the
suit schedule property and therefore, the claim of the
plaintiff for declaration of title is barred by limitation.
51. The Learned Counsel for plaintiff relied
upon decision reported in AIR 1961 Supreme Court 808
between C.Mohammad Yunus Vs. Syed Unnissa and
others and decision reported in (2016) 1 SCC 530
between Vasant Balu Patil and others Vs. Mohan
Hirachand Shah and others and argued that under
Article 120 of Limitation Act a suit for a declaration of
58 O.S.No.1242/1998
right and an injunction restraining the defendants from
interfering with the exercise of that right is governed by
Article 120. Under the Article there can be no right to
sue until there is an accrual of the right asserted in the
suit and its infringement or at least a clear and
unequivocal threat to infringe that right.
52. I have perused the above decisions in the
second cited decision the Hon'ble Supreme Court held
that so far as the plea of limitation is concerned there
can be no manner of doubt that the amendment of the
plaint to incorporate the relief of declaration of title has
necessarily to relate back to the date of filing of the suit.
Once, the said amendments were allowed and were not
challenged by the defendants, the issue with regard to
limitation has to be decided in favour of the plaintiffs.
53. In this case, though the plaintiff originally
filed suit for permanent injunction, he got converted the
59 O.S.No.1242/1998
same into a suit for declaration of title by filing
application for amendment on 28.10.2002. If the
contention of the defendants that right to sue accrued to
the plaintiff on 19.2.1998 is taken in to consideration the
suit of the plaintiff is within the period of limitation, as
the amendment goes to the date of filing of the suit.
This suit is filed on 7.2.1998. Therefore, suit of the
plaintiff is within the period of limitation. Hence, I
answer the above issue in the negative.
54. Addl. Issue No.4 dated:5.6.2012:- The
defendants in their written statement have contended
that the suit of the plaintiff is not properly valued and the
Court fee paid is insufficient. Except, taking this
contention in their written statement, defendants have
not placed any material to show that the market value of
the suit schedule property is Rs.1500/- per sq.ft. as
contended in their written statement. Hence in the
absence of any contrary material I accept the valuation
60 O.S.No.1242/1998
slip filed by the plaintiff and answer the issue in the
affirmative.
55. Addl.Issue No.5 dated:5.6.2012:-
Additional issue No.5 is framed casting burden on the
defendant No.4 to prove that the suit is not maintainable
against him, as plaintiff have not sought any relief
against him. As discussed above, originally, the suit
was filed by the plaintiff against defendants No.1 to 3
only seeking the relief of permanent injunction. During
the pendency of the suit, plaintiff filed application to
implead defendant No.4 on the ground that he is trying
to interfere with the plaintiff's possession over the suit
property and said application was allowed and he has
been impleaded. When the defendant No.4 has been
impleaded by necessary amendment, and when he has
filed written statement denying the case of the plaintiff,
his contention that suit against him is not maintainable
61 O.S.No.1242/1998
cannot be accepted. Therefore, I answer additional
issue No.5 in the negative.
56. Addl. Issue No.1 dated: 3.11.2015:-
The defendant No.4 in his written statement has
contended that one Balakrishna Reddy is in possession
and enjoyment of site Nos.49 and 50 situated in survey
No.113/1 and therefore, suit of the plaintiff for not
impleading him as a party is not maintainable. It is also
contended that one Ryneer Peter Pinto and Mary Pinto
are the owners of site Nos.46, 47 and 48 in sy.
NO.113/1 which they have purchased from one Dayalu.
The plaintiff has also not impleaded said Ryneer Peter
Pinto and his wife Smt.Mary Pinto as party to this suit
and therefore, suit of the plaintiff is not maintainable for
non-joinder of necessary parties.
57. During evidence, though Dw.1 produced
sale deed in respect of site Nos.46, 47, 48 and in
respect of site Nos.49 and 50, the plaintiffs have not
62 O.S.No.1242/1998
impleaded them as party to this suit. It is relevant to
note here, that defendant No.4 claims to be in
possession and management of property in site Nos.46,
47 and 48 as a General Power of Attorney holder of
Ryneer Peter Pinto and his wife Smt.Mary Pinto. It is
also relevant to note here that plaintiff has impleaded
defendant No.4 as a party to this suit on the allegation of
interference to their possession over the suit property.
Hence looking to the facts and circumstances and
nature of allegations made against the defendants it
cannot be said that the suit of the plaintiff is bad for non-
joinder of necessary parties. Hence, I answer
additional issue No.1 in the affirmative.
58. Addl.Issue No.2 dated: 3.11.2015:-
Additional issue No.2 is framed casting burden on
the plaintiff to prove that suit for declaration is not
maintainable without seeking the relief of possession.
As discussed above, plaintiffs have filed suit for
63 O.S.No.1242/1998
declaration and permanent injunction on the ground
that they are in possession of suit property on the basis
of registered sale deed. Except taking the above
contention in their written statement defendants have
not placed any material to substantiate the same.
Therefore, I answer additional issue No.2 in the
affirmative.
59. Issue No.2:- Issue No.2 is framed with
regard to alleged interference by the defendants. In
view of my detail discussion and findings on above issue
No.1 and additional issue No.1 dated: 28.2.2006 it is
held that plaintiffs have failed to establish title as well as
possession in respect of suit schedule property as
described in the schedule. It is also observed that
plaintiffs have failed to prove the identity of suit property
as claimed in the plaint schedule. Under these
circumstances, the allegation of the plaintiff that
defendants interfered with their possession over the suit
64 O.S.No.1242/1998
property cannot be accepted. Therefore, I answer issue
No.2 in the negative.
60. Issue No.3:- Plaintiff is claiming the
relief of declaration and permanent injunction. In view of
my discussion and findings on above issues, plaintiff is
not entitled for the relief of declaration or injunction.
Therefore, I answer issue No.3 in the negative.
61. Issue No.4:- In view of my discussion and
findings on the above issues, I proceed t o pass the
following:
ORDER
The suit of the plaintiff is dismissed. No order as to cost.
Draw decree accordingly. (Dictated to the Judgment Writer, transcribed, computerized and print out taken by her, revised, corrected and then pronounced by me in open Court today the 23rd day of November 2017).
(Saraswati.V.Kosandar) VII.ADDL.CITY CIVIL JUDG,.
BANGALORE CITY.
65 O.S.No.1242/1998ANNEXURE/ Witnesses examined on behalf of Plaintiff/s:
P.W.1 : J.Sulochana Pw.2 : Babu Reddy
Witness examined on behalf of Defendants:
D.W.1 Chinnappa Reddy D.W.2 K.G.Lakshminarayanan D.W.3 J.Krishna Reddy Documents marked on behalf of Plaintiffs:
Ex.P1 Certified copy of GPA Dated 26.12.1997 Ex.P2 Certified copy of Sale dead Dated Dated: 17.7.1996 Ex.P3 Certified copy of the death Certificate Ex.P4 Translated copy of Ex.P3 Ex.P5 Certified copy of Mutation Extract ExsP6 To 8 RTCs ExsP 9 &10 Encumbrance Certificates Ex.P 11 Khata Certificate Ex.P12 Khata Extract Exs.P13 To 17 Tax Paid receipts Exs.P18 & 19 Orders passed by BESCOM in respect of Electricity connection. Ex.P 20 Certified copy of Tippani Ex.P 21 Revenue Sketch Ex.P22 Endorsement issued by asst. Commissioner, Bangalore North-Sub-Division Ex.P23 Survey Settlement Akar Bandh 66 O.S.No.1242/1998 Ex.P24 KEB Bill Exs.P25 To 31 Electricity Receipts Ex.P 32 & 33 KEB Bills Ex.P34 Certified copy of letter Dated 22.12.2003 Ex.P 35 Endorsement Dated 4.10.2005 issued by BDA Exs.P36 To 39 Photographs Ex.P 36 (a) To 39 (a) Negatives Ex. P40 Certified copy of the police complaint Dated 18.03.2004 Ex.P41 G.P.A Dated 04.03.1985 Ex.P42 Endorsement Dated 14.09.1998 issued by Tahisdar Ex.P43 Telephone Bill Ex.P44 Receipt for having paid telephone Bill Ex.P45 Water Bill Ex.P46 Receipt for having paid water Bill Exs.P47 To 52 Photographs Ex.P53 Compact Disk Ex. P 54 Copy of application for layout plan Ex. P55 Endorsements Dated 02.12.2009 Ex.P56 Certified copy of order sheet in O.S 7675/2002 Ex.P57 Certified copy of plaint in O.S 7657/2002 Ex.P58 Certified copy of Memo filed in O.S 7657/2002 Documents marked on behalf of Defendants:
Ex.D1 Certified copy of Judgment in O.S 2171/2004 67 O.S.No.1242/1998 Ex.D2 Certified copy of Decree in O.S 2171/2004 Ex.D3 certified copy of deposition of pw1 in O.S 2171/2004 (Exs.D1 to D3 marked through Pw.1 by confrontation) Ex.D1 Sale deed dated: 01.07.1988 Ex.D2 to 4 Demand register extracts Ex.D5 Sale deed dated 11.07.1988 Ex.D6 to 8 Tax paid receipts Ex.D9 & 10 Demand register extracts Ex.D11 Copy of the police complaint Ex.D 12 to 14 Tax paid receipts Ex.D15 Sale deed dated: 11.07.1988 Ex.D16 To 18 Demand register extracts Exs.D19 To 21 Tax paid receipts Ex.D22 Certified copy of the sale deed dated:
17.8.1988 Exs.D23 & 24 Tax paid receipts Exs.D25 & 26 Demand register extracts Ex.D27 RTC extract Ex.D28 Six photographs Ex.D29 Compact Disc Ex.D30 Layout plan Ex.D31 Three photographs Ex.D32 Compact disk Ex.D33 Certified copy of General Power of Attorney dated:4.7.1988 Ex.D34 Certified copy of sale deed dated:19.2.2003 Ex.D35 Certified copy of the sale deed 68 O.S.No.1242/1998 dated:23.2.2004 Ex.D36 Certified copy of the sale deed dated:
17.2.1993 Ex.D37 Certified copy of the sale deed dated:
18.1.1989 Ex.D38 General Power of Attorney dated: 8.8.1988 VII.ADDL.CITY CIVIL JUDGE (CCH.No.19) BANGALORE.69 O.S.No.1242/1998
23.11.2017 P - V.B.S. D 1 to 4 - Y.S.R. (Judgment pronounced in the open Court (vide separate) The suit of the plaintiff is dismissed.
No order as to cost.
Draw decree accordingly.
(Saraswati.V.Kosandar) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY 70 O.S.No.1242/1998