Bangalore District Court
Sri. H.B.Chandrashekar vs ) Sri. R.K. Murthy on 19 November, 2015
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY
Dated on this the 19th day of November 2015
Present: Smt. Hemavathi, BBM,LL.B,
XXXIX Additional City Civil & Judge,
Bangalore City.
IN O.S.NO.9332/2007
Plaintiffs:
Sri. H.B.Chandrashekar
Since dead by his L.Rs.,
1) Smt. C.B. Jayamma
W/o late Chandrashekar
Aged about 59 years
2) Smt. H.C. Mamatha
D/o late Chandrashekar
Aged about 33 years
3) Sri. H.C. Sudhakar
S/o late Chandrashekar
Aged about 32 years
4) Smt. H.C. Shubha
D/o late Chandrashekar
Aged about 30 years
All are R/at No.612/2,
Shivakrupa Nilaya, Doorvaninaga
B. Channasandra
Bangalore -560 043.
[By Sri. AB, Advocate]
V/s.
2 O.S.No.9332/2007 & 5634/2008
Defendants:
1) Sri. R.K. Murthy
S/o late G. Ramaswamy
Aged about 35 years
R/at No.902, 31st Cross,
28th Main, Tilak Nagar,
Bangalore -560 041.
2) Sri. A. Kodhanda Reddy
S/o Abbaiah Reddy
Aged about 60 years
3) Sri. K. Mahesh
S/o A. Kodanda Reddy
Aged about 38 years
4) Sri. K. Ramesh
S/o A. Kodanda Reddy
Aged about 35 years
Defendants No.2 to 4 are
R/at No.536, Arakere Village,
Bannerghatta Road
Bangalore -560 076.
[By Sri.NSR, Advocate]
Date of Institution of the suit : 04.12.2007
Nature of suit : Injunction suit
Date of commencement of
: 08.01.2010
evidence
Date on which the judgment
: 19.11.2015
is pronounced
Years Months Days
Duration taken for disposal :
07 11 15
3 O.S.No.9332/2007 & 5634/2008
IN O.S.NO.5634/2008
Plaintiff:
Sri. R.K. Murthy
S/o late Ramaswamy
Aged about 35 years
R/at No.902, 31st Cross,
28th Main, Tilak Nagar,
Bangalore -560 041.
[By Sri. AB, Advocate]
V/s.
Defendants:
1) Sri. H.B.Chandrashekar
S/o H.B. Basavegowda
Since deceased by his L.Rs.,
1(a) Smt. C.B. Jayamma
W/o late Chandrashekar
Aged about 54 years
1(b) Smt. H.C. Mamatha
D/o late Chandrashekar
Aged about 33 years
1) Sri. H.C. Sudhakar
S/o late Chandrashekar
Aged about 32 years
2) Smt. H.C. Shubha
D/o late Chandrashekar
Aged about 30 years
All are R/at No.618
Omkarnagar
Bangalore -560 076.
[By Sri.NSR, Advocate]
4 O.S.No.9332/2007 & 5634/2008
Date of Institution of the suit : 13.08.2008
Nature of suit : Injunction suit
Date of commencement of
: 08.01.2010
evidence
Date on which the judgment is
: 19.11.2015
pronounced
Years Months Days
Duration taken for disposal :
07 03 06
COMMON JUDGMENT
The plaintiff in O.S.No.9332/2007 is the defendant in
O.S.No.5634/2008 and plaintiff in O.S.No.5634/2008 is the
defendant in O.S.No.9332/2007. During the pendency of the
suit, this defendant dead and his Lrs., are the defendant brought
on record.
2. The suit in O.S.No.9332/2007 is initially filed for the
relief of permanent injunction to restrain the defendant, his
agents, servants or anybody claiming under them from interfering
with the plaintiff's peaceful possession and enjoyment of the suit
schedule property. During the pendency of the suit, the plaintiff
got amended the plaint claiming for the relief of declaration to
declare that the plaintiff is the absolute owner of the suit schedule
5 O.S.No.9332/2007 & 5634/2008
property and to declare that the sale deed dated 07.05.2003
alleged to have been executed by the defendants No.2 to 4 in
favour of the defendant is null and void and not binding on the
plaintiffs right over the suit schedule property.
3. The plaintiff in O.S.No.5634/2008 filed a suit for the
relief of permanent injunction to restrain the defendant and to
declare that the plaintiff is the absolute owner of the suit schedule
property by virtue of sale deed dated 07.05.2003 obtained by him
from A. Kodanda Reddy and his children and for the relief of
permanent injunction to restrain the defendant, his men or
anybody claiming under him from causing interference to the
plaintiffs peaceful possession and enjoyment of the suit schedule
property and such other reliefs with cost.
4. The brief facts of the plaintiffs case in
O.S.No.9332/2007 is that one A. Kodanda Reddy S/o Abbaiah
Reddy of Arakere Village was the absolute owner of the property
bearing Sy.No. 95 & 96, he formed a residential sites as per plan
and site No.30, Khatha No.436/2, House List No.459/2 situated at
Arakere Villager, Hulimavu measuring 40 X 35 feet was sold in
favour of this plaintiff through registered sale deed dated
6 O.S.No.9332/2007 & 5634/2008
06.02.1992 by Kodanad Reddy and since then the plaintiff has
been peaceful possession and enjoyment of the said property and
the defendant utter stranger to the suit schedule property he has
no right, title or interest over the suit schedule property. Inspite
of that on 30.11.2007 at about 10.00 p.m. when the plaintiff along
with his family members came near the suit schedule property to
erect the building on the suit schedule property, the defendant
along with his henchmen came near there trespassed the suit
schedule property, assaulted the plaintiff to carryout his legal
work and picked up quarrel with him. though, the plaintiff resisted
the illegal act of the defendant with great difficulty, the defendant
while going back threatened that he will come again and
dispossessed him from the possession of the suit schedule
property hence, filed the suit for permanent injunction.
5. During the pendency of the suit, the plaintiff got
amended the plaint claiming the relief of the declaration and
inserted a para-3(a) stating that he is the absolute owner in
possession of the suit schedule property. The defendant has filed
written statement on 26.03.2008 and subsequently filed the in
O.S.No.5634/2008 and taken a contention that the proposed
defendants No.2 to 4 alleged to have been executed a sale deed
7 O.S.No.9332/2007 & 5634/2008
dated 07.05.2003 and this aspect has not been stated in the
written statement. The defendants No.2 to 4 have created a
fraudulent sale deed and said sale deed is fabricated and forged
document and void document and it is not binding on the plaintiff.
6. The defendant No.1 has filed written statement
denying the averments made in the plaint and contended that the
Sy.No.95 & 96/3 along with other agricultural properties came to
the share of one Abbaiah Reddy in the family partition deed dated
02.04.1972 and said Abbaiah Reddy formed a residential layout
in the said survey numbers. On 06.05.1991 said Abbaiah Reddy
had executed a GPA in favour of his son Kodanda Reddy in
respect of sites formed in Sy.No.95 & 96/3 including the suit
schedule site No.30 believing that his son Kodanda Reddy would
hold the power on his behalf truly to represent his interest. But
later Kodanda Reddy acted adversarly to the Abbaiah Reddy,
considering improper behavior of Kodanda Reddy revoked the
GPA granted in favour of Kodanda Reddy by executing a deed of
revocation on 08.05.1991 within 3 days from the date of execution
and informed the same to Kodanda Reddy regarding the same.
Earlier to execution of the sale deed by Kodanda Reddy and his
sons in favour of defendant, there was an agreement entered into
8 O.S.No.9332/2007 & 5634/2008
regarding the sale of the schedule property in order to bind the
terms and conditions and Kodanda Reddy has no independent
right, title and interest over the entire or part of Sy.No.95 & 96/3
situated at Arakere Village. Hence, Kodanda Reddy cannot deal
with the said property. In the sale deed, the said property
purchased by the defendant has been described as site
No.230/21 instead of site No.30 and other aspects like
measurements and the boundaries existing on that day it is
bonafide mistake. By virtue of family settlement entered between
Abbaiah Reddy with his children and grand children dated
18.02.2002, the property bearing Sy.No.230/21 felt to the share of
Kodanda Reddy and his children. Subsequently, khatha was
mutated in the name of Kodanda Reddy. Hence, Kodanda Reddy
and his children became the absolute owner of the said
properties. Said Kodanda Reddy along with his two sons
executed an absolute sale deed in favour of the defendant for
valuable consideration. This defendant has purchased the said
property and got changed the khatha in his name. Since, the
GPA executed by Abbaiah Reddy in favour of Kodanda Reddy
was revoked on 08.05.1991. Kodanda Reddy had no right to
execute the sale deed in favour of the plaintiff, said sale deed had
no legal value. Hence, prayed to dismiss the suit with cost.
9 O.S.No.9332/2007 & 5634/2008
7. The defendants No.3 and 4 have filed written
statement denying the averments of the plaint and contended that
the Sy.No.95 & 96/3 situated at Arekere Village along with other
properties were inherited by Abbaiah Reddy who is the paternal
grand father of these defendants in family partition deed dated
02.04.1972 and he had formed a residential layout on
06.05.1991. Abbaiah Reddy executed a GPA in favour of
defendant No.2 in respect of Sy.No.95 & 96/3 including suit
schedule property to represent him truly but said Kodanda Reddy
began to act adversely on 08.05.1991 hence Abbaiah Reddy
revoked the GPA and intimated the same to the defendant No.2.
There was an agreement entered into prior to sale in favour of the
defendant No.1 by defendants No.2 to 4 and in view of revocation
of GPA the defendant No.2 has lost interest to represent Abbaiah
Reddy therefore, defendant No.2 had no exclusive right, title and
interest over Sy.No.95 & 96/3 and by virtue of family settlement
between Abbaiah Reddy and his children and grand children
dated 18.02.2002 the properties bearing Sy.No.95 & 96/3 felt to
the share of the defendant No.2 and his children therefore, khatha
was mutated in their names and they became the co-owners of
the property and khatha effected in their names and defendant
No.2 had no right to execute a registered sale deed in favour of
10 O.S.No.9332/2007 & 5634/2008
plaintiff and therefore, the sale deed executed the defendant No.2
is legal barred. The defendants No.2 to 4 who had competency
to sell the properties in question rightfully and legally conveyed
the same in favour of the defendant No.1 by executing a proper
deed of conveyance on 20.03.2003 for valuable consideration
hence, the plaintiff cannot claim right on the basis of fraudulent
document. Therefore, prayed to dismiss the suit with cost.
8. The defendant No.2 has not filed written statement.
9. The defendant No.1 filed additional written statement
denying the averments made in para-3(a) of the plaint.
10. On the basis of the pleadings of the parties, this court
has framed the following issues and Additional issues:
ISSUES
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11 O.S.No.9332/2007 & 5634/2008
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ºÉÆAzÀ®Ä CºÀðgÉÃ?
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Addl. Issues:-
1) Whether the plaintiff proves that the sale
deed dated 07.05.2003 executed by
defendants No.2 to 4 in favour of the 1st
defendant is not binding on him?
2) Whether the plaintiff is entitled for the relief
of declaration as prayed?
11. The brief facts of the plaintiff case in
O.S.No.5634/2008 is that in Sy.No. 95 & 96/3 along with other
items felt to the share of Abbaiah Reddy through family partition
deed dated 02.04.1972 and Abbaiah Reddy formed sites in the
said properties by forming a layout. Said Abbaiah Reddy
executed a GPA in favour of Kodanda Reddy in respect of sites
formed in Sy.No.95 & 96/3 to represent him but said Kodanda
Reddy acted adversely hence, Abbaiah Reddy revoked the GPA
on 08.05.1991. Thereafter, Abbaiah Reddy along with his
children and grand children effected family settlement on
18.02.2002 in which khatha No.233/12 measuring 40 X 35 feet
formed out of Sy.No.95 of Arakere Village, which is suit schedule
property felt to the share of Kodanda Reddy. Subsequently,
12 O.S.No.9332/2007 & 5634/2008
khatha was changed in his name on 20.02.2003. Said Kodanda
Reddy along with his children entered into contract to sell the
property in favour of the plaintiff agreeing for Rs.1,75,000/- and
received advance amount of Rs.75,000/- and executed a sale
deed on 07.05.2003 by receiving balance of sale consideration in
favour of the plaintiff, since then handed over the vacant
possession of the schedule property to the plaintiff, khata was in
the name of the plaintiff he had right, title and interest over the
property inspite of that defendant obtained an alleged sale deed
on 06.02.1992 from A.Kodanda Reddy alone who acted as GPA
on behalf of Abbaiah Reddy in respect of the suit schedule
property. Therefore, the defendant did not derive any right, title
and interest in respect of the schedule property. Inspite of that
the defendant filed suit in O.S.No.9332/2007 claiming the relief of
permanent injunction in respect of the suit schedule property and
attempting to interfere with the plaintiff's possession of the
schedule property. The defendant is not in possession of the suit
schedule property either on 06.02.1992 or subsequently and on
03.08.2008 the defendant attempted to take out the construction
in the suit schedule property. Though, the plaintiff foiled his
attempt the defendant while going away from the suit schedule
13 O.S.No.9332/2007 & 5634/2008
property to declared that he would come again to disturb the
possession of the schedule property. Hence, filed this suit.
12. The defendant has filed written statement contending
that the suit is filed to harass the defendant and alleged deed of
revocation regarding the revocation of power of attorney dated
06.05.1991 executed by Abbaiah Reddy in favour of Kodanda
Reddy is false and it is created by the plaintiff to make a false
claim over the schedule property and Abbaiah Reddy and his
children and grand children have no right to effect the family
settlement on 18.02.2002 and the alleged agreement dated
20.02.2003 said to have been executed by Kodanda Reddy are
concocted and fraudulent documents. Further contended that
Kodanda Reddy is the absolute owner of the property bearing
Sy.No.95 & 96 formed a residential sites as per the plan and in
the sites so formed, Site No.30, khatha No.436/2, House List
No.450/3 situated at Arakere Village, measuring 40 X 35 feet sold
in favour of the defendant through registered sale deed dated
06.02.1991 and put in possession of the suit schedule property
since then he is in possession and enjoyment of the suit schedule
property. This defendant is the absolute owner in possession
and enjoyment of the suit schedule property and on 30.11.2007
14 O.S.No.9332/2007 & 5634/2008
the plaintiff tried to interfere with the peaceful possession and
enjoyment of the suit schedule property hence, filed a suit in
O.S.No.9332/2007 for injunction and the plaintiff never in
possession and enjoyment of the suit schedule property. Hence,
prayed to dismiss the suit with cost.
13. On the basis of the pleadings of the parties, this court
has framed the following issues and additional issues:
ISSUES
1) Whether the plaintiff proves his ownership
over the suit schedule property?
2) Whether the plaintiff further proves illegal
interference and obstruction by the
defendant in his possession over the suit
schedule property?
3) Whether the plaintiff is entitled for the relief
sought for?
4) What order or decree?
Addl. Issue:-
1) Does the plaintiff prove that Sri. V. Abbaiah
Reddy has revoked the General power of
attorney in favour of Sri. A. Kodanda Reddy
on the basis of revocation deed dated
08.05.1991?
15 O.S.No.9332/2007 & 5634/2008
14. As per order dated 14.09.2011 in O.S.No.5634/2008
is clubbed with O.S.No.9332/2007. Hence, common evidence
has been recorded.
15. The plaintiff in OS.5634/2008 examined him as PW1
and got marked in all Ex.P1 to P9. Defendant who is plaintiff in
O.S.No.9332/2007 examined as DW1 and got marked documents
as Ex.D1 to D18.
16. In view of the clubbing of the O.S.No.5643/2008 with
O.S.No.9332/2007 to avoid contention I hereby refer the plaintiff
in O.S.No.9332/2007 who is the defendant No.1 and
O.S.No.5634/2008 as a plaintiff and the defendant No.1 in
O.S.No.9332/2007 who is the plaintiff in O.S.No.5634/2008 as a
defendant No.1 and the other defendants in O.S.No.9332/2007
as defendants No.2 to 4. The schedule property in
OS.No.9332/2007 is referred as schedule No.1 and schedule
property in OS.No.5634/2008 is herby referred as schedule No.2.
17. Heard advocate for the plaintiff and defendant.
18. My findings on the above issues are as follows:
16 O.S.No.9332/2007 & 5634/2008
In O.S.No.9332/2007
Issue No.1 - Affirmative,
Issue No.2 - Affirmative
Issue No.3 - Affirmative,
Issue No.4 - As per final order, for the
following:
Addl. Issue No.1 - Affirmative
Addl. Issue No.2 - Affirmative
In O.S.No.5634/2008
Issue No.1 - Negative
Issue No.2 - Negative
Issue No.3 - Negative
Issue No.4 - As per final order, for the
following:
Addl. Issue No.1 - Negative
REASONS
19. Issue No.1 & Addl. Issue No.1 in O.S.No.9332/2007
and Issue No.1 & Addl. Issue No.1 in O.S.No.5634/2008 :-
In this case the fact that the property bearing Sy.No.95 &
96/3 situated at Arakere village, Begur Hobli, Bangalore fell to the
share of Abbaiah Reddy S/o Venkatappa in a family partition
deed dated 02.04.1972 and said Abbaiah Reddy executed a
power of attorney in favour of his son Kodanda Reddy on
06.05.1991 and there was a family settlement between Abbaiah
17 O.S.No.9332/2007 & 5634/2008
Reddy along with his children and grand children on 18.02.2002
are all admitted fact. The case of the plaintiff is that one Kodanda
Reddy sold the suit schedule site No.30 formed in Sy.No.95/96
which is suit schedule property on 06.02.1992 and he was put
into possession of the property since from the date of purchase
he is in possession and enjoyment of the suit schedule property
as an absolute owner.
20. The defendant No.1 contends that though the
Abbaiah Reddy executed a GPA on 06.05.1991 in favour of his
son Kodanda Reddy in respect of site Sy.No.95 & 96/3 as the
attitude of the Kodanda Reddy was adverse to the interest of
Abbaiah Reddy considering the said behavior of his son Kodanda
Reddy. Abbaiah Reddy revoked the GPA by executing a power
of attorney on 08.05.1991. Hence, the sale deed executed by
Kodanda Reddy in favour of the plaintiff is without any authority
and under any right, title. Later on 18.02.2002 Abbaiah Reddy
with his children and grand children effected a family settlement
and that settlement suit schedule site formed in Sy.No.95 of
Arakere village felt to the share of Kodanda Reddy and his family
and khatha was in the name of Kodanda Reddy. On 20.03.2003
Kodanda Reddy and his two children entered into contract to sell
18 O.S.No.9332/2007 & 5634/2008
the schedule property in favour of defendant No.1 and executed a
sale deed on 07.05.2003 in favour of the defendant No.1 since
then the defendant No.1 is the absolute owner in possession and
enjoyment of the suit schedule property.
21. PW1 who is the defendant No.1 in his cross-
examination admitted that Abbaiah Reddy had dispersed all the
sites in favour of his 3 children by executing a GPA on
06.05.1991 but he denied that on 06.02.1992 the plaintiff
purchased the suit schedule property under registered sale deed
from Kodanda Reddy and he is in possession and enjoyment of
the same. He deposed that sons of Kodanda Reddy given
Ex.P13 to him he does not know whether Abbaiah Reddy had
issued a legal notice to Kodanda Reddy before cancellation of
GPA executed by him in favour of defendant No.2 and also
whether there was a paper publication for cancellation of GPA
and he has not enquired with the son of Kodanda Reddy about
receipt of the legal notice or issuance of paper publication in
respect of cancellation of GPA in favour of their father.
22. So this evidence of PW1/defendant No.1 falsifies the
contention of the defendant that Abbaiah Reddy had notified the
19 O.S.No.9332/2007 & 5634/2008
revocation of the GPA dated 06.05.1991 to his son Kodanda
Reddy.
23. Ex.P1 is the sale agreement dated 20.03.2003
executed by Kodanda Reddy and his children in favour of PW1 in
respect of site No.30, property No.230/21, Arakere Villagre, Begur
Hobli, South taluk measuring 40 X 35 feet bounded by East -
Road, West - Venu Gopal's site No.29, North - Raghunanda
Reddy's site No.31 and South - BTS Extension. Ex.P2 is the
sale deed dated 07.05.2003 executed by Kodanda Reddy and his
children in favour of the defendant No.1 in respect of the property
in respect of site No.230/21, Khatha No.233/12, situated at
Arakere Village, measuring East-West : 40 feet and North-South :
35 feet bounded by East - Road, West - Venugopal Reddy's
property, North - Raghunanda Reddy's property and South -
BTS layout. On going through Ex.P1 and P2 it is very clear that
the property sold under Ex.P1 is not the property sold to the
Ex.P2. Though the boundaries and measurements are shown in
both documents are one and the same. Ex.P3 to 5 and 11 are
the self assessment tax declaration receipts in respect of site
No.230/21, Khatha No.233/12 which is the property shown in
Ex.P2. Ex.P12 is the RTC in respect of Sy.No.95 measuring
20 O.S.No.9332/2007 & 5634/2008
3.27 guntas which stands in the name of Abbaiah Reddy,
Venugopal Reddy and Raghunanda Reddy. Ex.P13 is the deed
of revocation dated 08.05.1991 said to have been executed by
Abbaiah Reddy revoking the GPA dated 06.05.1991 executed in
favour of Kodanda Reddy to show that the revocation of GPA
dated 06.05.1991 executed in favour of Kodanda Reddy by
Abbaiah Reddy was brought to the knowledge of the Kodanda
Reddy. The plaintiff has not produced any material before the
Court. If is the case that Abbaiah Reddy had revoked the GPA on
06.05.1991 executed in favour of the Kodanda Reddy is true he
would have examined the witness who signed Ex.P13 which is
the deed of revocation of the GPA but he has not examined any
witnesses. Further as I already discussed above PW1 admitted
that he does not know whether Abbaiah Reddy had issued a legal
notice to the Kodanda Reddy or given paper publication about
cancellation or revocation of GPA dated 06.05.1991 executed in
favour of Kodanda Reddy by Abbaiah Reddy. Therefore, the
contention of the plaintiff that Abbaiah Reddy cancelled the GPA
executed in favour of Kodanda Reddy cannot be accepted.
24. The plaintiff examined as DW1. Inspite of opportunity
given to the defendant to cross-examine the DW1/plaintiff, the
21 O.S.No.9332/2007 & 5634/2008
defendant did not cross-examine the plaintiff/ DW1. The plaintiff
has produced Ex.D1 sale deed dated 06.02.1992 executed by
Kodanda Reddy in favour of plaintiff herein where it is recited in
para-1 that Kodanda Reddy is the absolute owner of the suit
schedule property. Nowhere in this document it is recited that he
had executed a sale deed as GPA holder of his father. This sale
deed in respect of site No.30, Khatha No.436/2, House List
No.450/3 situated at Arakere Village, Hulimavu Grama
Panchayath, Begur Hobli, bounded East - Road, West - property
No.29, North - property No.31 and South - private property. On
perusal of Ex.D1 and Ex.P1 and P2 it is very clear that the
property shown in these documents are entirely different though
the boundaries tallys with one and the other.
25. ExD5 is the endorsement issued by Commissioner,
Nagarasabe, Bommanahalli for change of khatha in respect of
property shown in Ex.D2. Ex.D4 is the tax assessment register
extract issued by Commissioner, Nagarasabe, Bommanahalli
where name of the plaintiff is shown in respect of the property
bearing Khatha No.436/2 Site No.30. Ex.D6 and D7 are the tax
receipts in relation to the property shown in Ex.D2. Ex.D8 is the
tax paid receipt of the year 2009 in respect of the property shown
22 O.S.No.9332/2007 & 5634/2008
in Ex.D2. Ex.D9 is also relating to the suit schedule property.
Ex.D10 is the Encumbrance certificate is also relating to the suit
schedule property. Ex.D13 to D15 are the certified copy of the
sale deed dated 06.02.1992 executed by Kodanda Reddy in
favour of one M.R.Suresh, B.G.Raghavendra Prasad and Hariyoji
Rao. So it is very clear that on the date of execution of Ex.D1
said Kodanda Reddy had also executed a sale deed in favour of
other purchasers in Ex.D13 to D15 in respect of sites formed in
the property situated in Arakere Villager, Begur Hobli. As already
discussed above, ExD1 it does not reveal that Kodanda Reddy
had executed a sale deed as GPA holder of his father Abbaiah
Reddy. So, the contention of the defendant that Kodanda Reddy
executed a sale deed in favour of the defendant as GPA holder of
the Abbaiah Reddy cannot be accepted. The defendant No.1
has not produced any document to show that on 18.02.2002 there
was a family settlement between Abbaiah Reddy and his children
including the Kodanda Reddy. In Ex.P1 and P2 nowhere it is
stated that Kodanda Reddy and his children have acquired right
over the property under alleged family settlement. In the sale
deed Ex.P2 it is stated that said property is the ancestral property.
So, the contention of the plaintiff that the property sold to him
under Ex.P2 is the property acquired by Kodanda Reddy and his
23 O.S.No.9332/2007 & 5634/2008
children through family settlement dated 18.02.2002 cannot be
accepted.
26. Herein O.S.No.9332/2007 the plaintiff has impleaded
Kodanda Reddy and his two children as defendants No.2 to 4 but
the plaintiff in O.S.No.5634/2008 has not impleaded the said
Kodanda Reddy and children as a party, though, he contended
that Kodanda Reddy had no right to execute the sale deed in
favour of plaintiff Chandrashekar. Further in O.S.No.9332/2007
defendants No.3 and 4 who are the sons of Kodanda Reddy
though filed a written statement supporting the case of the
defendant No.1, defendants No.3 and 4 have not entered into the
witness box, so adverse inference is to be drawn against the
contention of the defendant. On going through the entire
material placed before the Court it is very clear that Kodanda
Reddy had executed a sale deed in favour of the plaintiff in
respect of the schedule property No.1 and the sale deed
executed by Kodanda Reddy and his children in respect of
schedule property No.2 is not the property in respect of schedule
property No.1. The defendant has not produced any document to
show that the property sold in Ex.P2 is the property sold under
Ex.D1 by Kodanda Reddy. When the sale deed of the plaintiff is
24 O.S.No.9332/2007 & 5634/2008
much prior to the sale deed of the defendant and there is no
material before the Court by the defendant to show that either
Abbaiah Reddy had executed the GPA in favour of Kodanda
Reddy or that Kodanda Reddy acquired the schedule property
No.1 or property sold in favour of the defendant under Ex.P2
through family settlement dated 18.02.2002 and none of the
family members of Abbaiah Reddy including Abbaiah Reddy and
children of Kodanda Reddy had challenged the sale deed of the
plaintiff herein. I hold that the sale deed executed in favour of
the plaintiff as per Ex.D1 is having the legal sanctity and it is a
legal document. The plaintiff had acquired the right, title and
interest over the schedule property No.1 as an absolute owner
and he is in possession and enjoyment of the same based on the
sale deed. The defendant has failed to prove he is the absolute
owner of the suit schedule property based on the sale deed as
per Ex.P2. Therefore, the sale deed executed by defendants
No.2 to 4 in favour of defendant No.1 is not binding on the
plaintiff. In view of these discussions, I answer the above Issue
No.1 and Addl. Issue No.1 in O.S.No.5634/2008 in the negative
and Issue No.1 and Addl. Issue No.1 in O.S.No.9332/2007 in the
affirmative.
25 O.S.No.9332/2007 & 5634/2008
27. Issue No.2 in both cases:- When the defendant
No.1 has failed to prove his ownership and possession of the suit
schedule property the question of interference by with the
plaintiff's possession and enjoyment over the suit schedule No.2
property does not arise.
28. It is the contention of the plaintiff that on 30.11.2007
about 10.00 p.m., the plaintiff was in the suit schedule property
and cleaning the same at that time the defendant No.1 along with
his henchmen came near there trespassed the suit schedule
property assaulted the plaintiff to carryout his legal work and
when he questioned the defendant he threatened that he will
dispossess the plaintiff from the suit schedule property.
Thereafter, the plaintiff has lodged a complaint before MICO
layout police station.
29. The plaintiff has produced Ex.P2 which is the copy of
the complaint lodged before MICO layout police station and
Ex.D2 NCR issued by 30.11.2007 to disprove these facts there is
no cross-examination by the defendant No.1 or produced any
documentary evidence. So it is very clear that the defendant is in
possession and enjoyment of the suit schedule property. Hence,
26 O.S.No.9332/2007 & 5634/2008
I hold that the plaintiff has proved the interference by the
defendant No.1 to his possession of the suit schedule property.
Hence, I answer above Issue No.2 in O.S.No.9332/2007 in the
affirmative and issue No.2 in O.S.No.5634/2008 in the negative.
30. Issue No.3 in both cases & Addl. Issue No.2 in
O.S.No.9332/2007:- When the plaintiff in O.S.No.5634/2008 has
failed to prove that he is the absolute owner in possession of the
suit schedule property and the alleged interference and
obstruction by the defendant in that suit. I hold that the plaintiff in
that suit is not entitled any relief.
31. The plaintiff in O.S.No.9332/2007 has proved that he
is the absolute owner in possession and there is an interference
by the plaintiff's possession and enjoyment over the suit schedule
property. Therefore, I hold that the plaintiff is entitled for the
relief of declaration and permanent injunction as prayed. Hence, I
answer the above issue No.3 in O.S.No.5634/2008 in the
negative and issue No.3 & Addl. Issue No.2 in O.S.No.9332/2007
in the affirmative.
27 O.S.No.9332/2007 & 5634/2008
32. Issue No.4:- For the reasons discussed above, I
proceed to pass the following:
ORDER
Suit filed by the plaintiffs in O.S.No.9332/2007 is hereby decreed.
Suit filed by the plaintiff in O.S.No.5634/2008 is hereby dismissed.
Considering the facts and circumstances of the case there is no order as to cost in both suit.
It is hereby declared that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property and defendant, his agents, servants or anybody claiming under them are hereby restrained by an order of permanent injunction from interfering with the plaintiffs peaceful possession and enjoyment over the suit schedule property in O.S.No.9332/2007.
Office is directed to keep the original Judgment in O.S.No.9332/2007 and copy in O.S.No.5634/2008.
Draw Decree Accordingly.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court, this the 19th day of November 2015) (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
28 O.S.No.9332/2007 & 5634/2008ANNEXURE
1. List of witnesses examined for plaintiff:-
PW1 : Sri. R.K. Murthy
2. List of documents exhibited for plaintiff:-
Ex.P1 : Sale agreement dated 20.02.2003 Ex.P2 : Sale deed dated 07.05.2003 Ex.P3 to 5 : Tax declaration forms Ex.P6 to 8 : 3 Tax paid challans Ex.P9 to 11 : 3 Tax paid challans Ex.P12 : Record of rights Ex.P13 : Deed of revocation Ex.P14 & 15 : 2 Photos Ex.P16 : Negative Ex.P17 : Photos cash receipt Ex.P18 : Certified copy of plaint in O.S.No.9332/2007 Ex.P19 : Certified copy of written statement in O.S.No.9332/2007
3. List of witnesses examined for defendants:-
DW1 : Sri. H.C. Sudhakar
4. List of documents exhibited for defendants:-
Ex.D1 : Original sale deed dated 6.2.92 Ex.D2 : Police complaint Ex.D3 : Endorsement 29 O.S.No.9332/2007 & 5634/2008 Ex.D4 Extract issued by CMC Bommanahalli Ex.D5 Endorsement given CMC Bommanahalli Ex.D6 Tax paid receipt Ex.D7 Receipt about of Rs.659 to BBMP Ex.D8 Tax paid receipt Ex.D9 3 Tax paid receipts Ex.D10 Encumbrance certificate Ex.D11 & 12 2 Photos Ex.D11(a) & 12(a) Negatives Ex.D13 Certified copy of sale deed dated 06.02.1992 Ex.D13(a) Typed copy of Ex.D13 Ex.D14 Certified copy of sale deed dated 06.02.1992 Ex.D14(a) Typed copy of Ex.D14 Ex.D15 Certified copy of sale deed dated 08.05.1991 Ex.D15(a) Typed copy of Ex.D15 Ex.D16 Encumbrance certificate Ex.D17 & 18 2 Tax paid receipts XXXIX Additional City Civil & Sessions Judge, Bangalore City.30 O.S.No.9332/2007 & 5634/2008
19/11/2015 Judgment pronounced in the open Court (vide separate Judgment) with the following operative portion:
ORDER Suit filed by the plaintiffs in O.S.No.9332/2007 is hereby decreed.
Suit filed by the plaintiff in O.S.No.5634/2008 is hereby dismissed.
Considering the facts and circumstances of the case there is no order as to cost.
It is hereby declared that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property and defendant, his agents, servants or anybody claiming under them are hereby restrained by an order of permanent injunction from interfering with the plaintiffs peaceful possession and enjoyment over the suit schedule property in O.S.No.9332/2007.
Office is directed to keep the original Judgment in O.S.No.9332/2007 and copy in O.S.No.5634/2008.
Draw Decree Accordingly.
XXXIX Additional City Civil & Sessions Judge, Bangalore City.