Bangalore District Court
Mr.K.Prathap Reddy vs Sri.R.Ramaswamy on 10 November, 2022
1
KABC010202492020
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-64) AT BENGALURU.
Dated this the 10th day of November 2022
: PRESENT :
Sri.A.V.Patil, B.Com., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
O.S. NO.5669/2020
C/W
O.S. NO.5732/2020
IN OS NO.5669/2020
Plaintiff : Mr.K.Prathap Reddy
S/o K.Narasimha Reddy,
Aged about 48 years,
Residing at No.278,
M.S.Ramaiah City, 5th Main,
J.P.Nagar, 8th Phase,
Bengaluru - 560 078.
(By Sri.Ravishankar.K., Advocate)
// Vs.//
Defendants : 1. Sri.R.Ramaswamy
S/o Late.Pillappa,
2 OS No.5669/2020
& OS No.5732/2020
Aged about 65 years,
2. Smt.R.Laxshmamma
W/o R.Ramaswamy,
Aged about 56 years,
3. Sri.R.Praveen
S/o R.Ramaswamy,
Aged about 38 years,
All are residing at Adoor village,
Indalwadi Post, Kasaba Hobli,
Anekal Taluk, Bengaluru.
And also residing at No.3,
Sai Siddhi Enclave Apartment,
1st Cross, J.P.Nagar 1st Phase,
Bengaluru South, Bengaluru.
(D.1 & 2 by Sri.T.K.Rajagopala,
Advocate
D.3 by Sri.D.G.M, Advocate)
Date of institution of the suit : 13.11.2020
Nature of the suit : Permanent Injunction
Date of commencement of 11.11.2021
recording of evidence :
Date on which Judgment was 10.11.2022
pronounced :
Years Months Days
Total Duration : 01 11 27
3 OS No.5669/2020
& OS No.5732/2020
IN OS NO.5732/2020
Plaintiffs: 1. Sri.P.Ramaswamy
S/o Late.Pillappa,
Aged about 67 years,
2. Smt.Lakshmamma
S/o P.Ramaswamy,
Aged about 56 years,
Both residing at No.407, 4th Floor,
"Marvel", Thippasandra village,
Uttarahalli Hobli, Bengaluru South
Taluk, Bengaluru - 560 075.
(By Sri.T.K.Rajagopala, Advocate)
// Vs.//
Defendants : 1. Sri.K.Prathap Reddy
S/o Narasimha Reddy,
Aged about 50 years,
Residing at No.278, 5th Cross,
Ramaiah City Layout,
J.P.Nagar, 7th Phase,
Bengaluru - 560 078.
2. Sri.R.Praveen
S/o R.Ramaswamy,
Aged about 39 years,
Residing at No.3,
Sri Sai Siddhi Apartment,
1st Cross, 1st Main, V.R.Layout,
J.P.Nagar 1st Phase,
Bengaluru - 560 078.
4 OS No.5669/2020
& OS No.5732/2020
(D.1 by Sri.Pradeep H.S., Advocate
D.2 - Exparte)
Date of institution of the suit : 18.11.2020
Permanent Injunction
Nature of the suit :
Date of commencement of 11.11.2021
recording of evidence :
Date on which Judgment was 10.11.2022
pronounced :
Years Months Days
Total Duration : 01 11 29
JUDGMENT
Both OS No.5669/2020 and OS No.5732/2020 are filed for the relief of permanent injunction restraining the respective defendants not to interfere with the possession in respect of suit A and B schedule property.
2. In view of the order passed in OS No.5669/2020 dated 31.07.2021, OS No.5732/2020 is clubbed with OS No.5669/2020 for common disposal. In both the suits the suit Schedule 'B' property is Flat No.407, situated in 4 th floor of 'Marvel Apartments', measuring 2292 sq.ft., of super built-up area with 541 sq.ft., of undivided share of 5 OS No.5669/2020 & OS No.5732/2020 interest described in Schedule 'A' property. For the sake of convenience hereinafter referred as "suit flat".
3. Plaintiff in OS No.5669/2020 is the defendant No.1 in OS No.5732/2020, defendant No.1 and 2 in OS No.5669/2020 are the plaintiffs in OS No.5732/2020. Defendant No.3 in OS No.5669/2020 is the defendant No.2 in OS No.5732/2020.
4. The brief facts of OS No.5669/2020 are as follows;
Defendant No.3 is the owner of the suit flat. It is acquired by defendant No.3 by virtue of a Sharing Agreement dated 24.11.2018 made between the family members. Defendant No.1 and 2 are the father and mother of defendant No.3. The family of the defendants entered into a Partition Deed dated 27.09.2019, wherein the suit Flat given to the defendant No.3 has not been allotted to any one as the same is given to defendant No.3.
5. The plaintiff is the registered Sale Agreement holder dated 16.03.2019 of a suit Flat for total consideration of Rs.30 lakhs. In pursuance of the said Agreement, the plaintiff has paid an amount of Rs.20 lakhs to the 6 OS No.5669/2020 & OS No.5732/2020 defendant and Rs.10 lakhs is required to be paid at the time of registration and time fixed for conclusion of the contract is 3 months from the date of agreement dated 16.03.2019. At the time of Agreement, the suit Flat was in unfinished stage. On 22.04.2019, plaintiff has further paid a sum of Rs.8 lakhs, which is duly endorsed on the backside of the Agreement and a sum of Rs.1 lakh paid on 19.11.2019. In all, the plaintiff has already paid Rs.29 lakhs. The Agreement of Sale is also entered and reflected in the Encumbrance Certificate for a period from 01.04.2018 to 16.03.2019. The plaintiff has shown his readiness and willingness to get register the Sale Deed by paying balance sale consideration of Rs.1 lakh to the defendant No.3. Though the defendant No.3 was having received the substantial amount, has not come forward to execute the Sale Deed in favor of the plaintiff and was evaded to conclude the contract for one or the other pretext. Ultimately, the plaintiff got issued a legal notice on 17.03.2020 to the defendant calling upon him to perform his part of contract and get register the Sale Deed in favor of the plaintiff. After issuance of the legal notice, defendant No.3 in response to the same, came forward and has negotiated with the plaintiff and 7 OS No.5669/2020 & OS No.5732/2020 ultimately agreed to hand-over the possession of the suit flat as he has received substantial amount of Rs.29 lakhs and has executed the GPA dated 18.09.2020 in favor of the plaintiff and also agreed to get the registered Sale Deed during the third week of December-2020 in favor of the plaintiff. The plaintiff has taken the photographs evidencing the handing over of key to the plaintiff by defendant No.3. After taking the possession of the suit flat by the plaintiff, he started to reside in the said residential flat.
6. The plaintiff learnt that a family dispute cropped up between the family members of the defendants regarding sharing of property, more particularly, the suit flat after entering into a Partition Deed dated 27.09.2019. Due to internal dispute between the family members, they are trying to interfere with the peaceful possession and enjoyment of the suit flat of plaintiff. The defendants being the members belonging to Schedule Caste and having political influence, having contact of goonda elements, started to interfere with the peaceful possession of the plaintiff. On 10.11.2020 at about 11.00 a.m., defendant No.1 and 2 came along with 5 to 7 persons who appears to be goonda elements, tried to 8 OS No.5669/2020 & OS No.5732/2020 dispossess the plaintiff from the suit flat on the ground that the defendant No.3 has no manner of right, title, interest to enter the Sale Agreement with the plaintiff. All the defendants colluding together demand more money from the plaintiff. Hence, the plaintiff approached the Thalaghattapura Police Station and submitted complaint on 10.11.2020. However, the Police have not received complaint on the ground that the matter is civil in nature. Hence, the plaintiff has filed this suit against the defendants for the relief of permanent injunction restraining the defendants or anybody on their behalf not to dispossess the plaintiff from the suit flat.
7. In pursuance of service of summons, defendant No.1 to 3 appeared through their Advocates. Defendant No.1 and 2 together engaged one Advocate and defendant No.3 engaged another independent Advocate. Even after granting sufficient opportunities, defendant No.3 has not filed the written statement and therefore, the written statement of defendant No.3 is taken as not filed.
8. Defendant No.1 filed the written statement in detail and the defendant No.2 adopted the written statement filed by defendant No.1 by filing Memo.
9 OS No.5669/2020& OS No.5732/2020
9. Defendant No.1 in his written statement admitted the description of the suit flat and denied rest of the plaint allegations in toto and called upon the plaintiff to strict proof of the same. According to him, defendant No.1 and 2 are in possession of the suit flat and plaintiff is a stranger to the suit flat. Defendant No.1 and 2 are not parties to the alleged Sale Agreement dated 16.03.2019 and therefore, they are not aware of the recitals of the said agreement. Defendant No.1 and 2 have not made any sale transaction with the plaintiff and they are in possession of the suit flat, but the plaintiff has been attempting to cause interference to their peaceful possession and enjoyment of the suit flat. The suit flat belongs to them and it is a valuable property with four bed room and fully furnished by defendant No.1 and 2 and all their belongings are inside the suit property.
10. Further according to the defendant No.1 the plaintiff earned the nickname as 'fraud builders' in the area and he is known for knocking the properties of others. The plaintiff being the stranger to the suit property and has not got any iota of document to show his title to the suit flat, but trying to prevent them from enjoying the 10 OS No.5669/2020 & OS No.5732/2020 possession of the suit flat peacefully. The plaintiff indulged in attacking defendant No.1 and 2 with the miscreant elements and tried to prevent them from staying in the suit flat and therefore, the defendant No.1 lodged the Police complaint against the plaintiff. The plaintiff has been denied anticipatory bail in Crl.Mis.1697/2020. The suit filed by the plaintiff is merit-less and hence prayed to dismiss the suit with cost.
11. Based on the aforesaid pleadings, the following of issues were framed by my predecessor in office:-
1. Whether the plaintiff proves that he is in lawful possession & enjoyment of the suit 'B' schedule property as on the date of filing this 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 against the defendants?
4. What order or decree?
12. The brief facts in OS No.5732/2020 are as follows;
The plaintiff No.1 and 2 are husband and wife and defendant No.2 is their son. Plaintiffs and defendant No.2 11 OS No.5669/2020 & OS No.5732/2020 constitute a joint family. The plaintiffs and defendant No.2 are the parties to the Joint Development Agreement dated 31.10.2014 entered into between the plaintiffs, defendant No.2 and one B.R.Mohan Kumar. As per the said Joint Development Agreement, the land described in 'A' schedule totally measuring 10,890 sq.ft., plaintiffs and defendant No.2 got their share and the residential flat described in the 'B' Schedule is duly registered in the Sub-Registrar office and got the Schedule 'B' flat under the registered Amalgamation Deed dated 02.06.2014 and took possession of the same. The dispute between the parties to the suit is schedule 'B' property and hence, hereinafter referred as "suit flat". The plaintiffs and defendant No.2 are in possession of the said suit flat. Defendant No.2 on his own came forward and relinquished his 1/3rd share voluntarily without there being any compulsion either from the plaintiffs or from any other person. Accordingly, registered Release Deed came to be executed by defendant No.2 in favor of the plaintiffs on 09.10.2019 and it was duly registered. In view of the execution of registered Release Deed by defendant No.2, the plaintiffs have become the absolute owners of the suit flat and accordingly the plaintiffs are 12 OS No.5669/2020 & OS No.5732/2020 in possession of the said flat. Due to some technicalities, the name of the plaintiffs not entered into the Khatha of the suit flat. To the shock of the plaintiffs, the defendant No.1 by inducing the defendant No.2 and intoxicating him with drinks and taking advantage of other vices of the defendant No.2, has managed to get registered Sale Agreement dated 16.03.2019 without possession. The alleged agreement executed by defendant No.2 is due to inducement caused to the defendant No.2 by defendant No.1. The sale consideration shown in the alleged agreement is Rs.30 lakhs. The existing market value of the said flat cannot be less than Rs.1,50,00,000/-, which alone shows the said agreement is the outcome of the 1 st defendant inducing defendant No.2 by various inducements, drugs and intoxicating with drinks and taking advantage of other vices of defendant No.2 has managed to get the registered sale agreement date 16.03.2019 without possession. Defendant No.2 has no right over the suit flat as he has relinquished his 1/3 rd share in favor of the plaintiffs. Defendant No.1 by playing fraud used to get executes agreements and cheats several persons including the defendant No.2. Defendant No.1 in order to gain, made an entry from the back door of the 13 OS No.5669/2020 & OS No.5732/2020 suit flat in the terrace and opened the door and got inside the premises and by manipulation get lock of the main door of the suit flat, but he could not succeed in his illegal attempts. According to him defendant No.2 must have brought locksmith and got main door and padlock removed and he has succeeded partially in getting one of the door locks unlocked and the rest he could not do. In view of such attempts made by the defendant No.1, the plaintiffs have filed this suit for the relief of permanent injunction against defendant No.1 or anybody on his behalf not to dispossess and interfere with the plaintiff's peaceful possession of enjoyment of the suit flat.
13. In spite of service of summons, defendant No.2 not appeared and therefore, defendant No.2 placed ex-parte. In pursuance of service of summons, defendant No.1 appeared through his Advocate and filed written statement. He resisted the suit filed by the plaintiffs by filing the written statement. He denied all the allegations made in the plaint by the plaintiffs in toto and called upon them to strict proof of the same except the description of the suit flat. According to him, plaintiffs have approached the Court by suppressing all the material facts and have not approached with clean 14 OS No.5669/2020 & OS No.5732/2020 hands. The plaintiffs and defendant No.2 have colluded together in order to knock off the valuable property which is in possession of the defendant No.1 and filed the false suit against the defendant No.1 for the relief of injunction even though the plaintiffs are not in possession of the suit flat. The plaintiffs have got created the Release Deed dated 09.10.2019 alleged to have been executed by defendant No.2 is a sham, concocted and cooked-up document in order to nullify the legal title and interest of defendant No.1. He has specifically denied the possession of the plaintiffs in respect of the suit flat. According to him, he is in possession and enjoyment of the suit property and plaintiffs are not in possession of the suit flat. He specifically pleaded that on issuance of a legal notice to defendant No.2 dated 17.03.2020, on 18.09.2020 he handed-over possession of the suit flat to the plaintiffs and since then he is in possession and enjoyment of the said flat. This defendant has also filed OS No.5670 on 13.11.2020 against the plaintiffs and defendant No.2 for the relief of permanent injunction. The plaintiffs and defendant No.2 are guilty of 'suppression very and suggestio falsie'. There is no gain of truth 15 OS No.5669/2020 & OS No.5732/2020 whatsoever in the averment of the plaint. Hence, the plaintiffs are not entitled for equitable relief of injunction.
14. The suit flat granted to the plaintiffs granted under the depressed class for free of cost as per the Grant Order dated 31.10.1961. Initially, the said land was alienated in favor of one Sri.Nagaraj, through a registered Sale Deed dated 15.02.1989 and 2nd plaintiff being the owner filed an application for resumption for the violation of the grant conditions. The Asst. Commissioner, Bengaluru South, by an order dated 06.06.2003 has resumed the land in favor of the plaintiff No.2. Further it is contended that plaintiff No.2 used to sell the land and thereafter taking undue advantage of the law, is in habit of filing the petition for resumption. As per the Development Agreement, the suit flat was allotted to the share of defendant No.2. Thereafter, defendant No.1 entered into Sale Agreement with defendant No.1 on 16.03.2019 for sale consideration of Rs.30 lakhs and received Rs.20 lakhs on the date of Agreement. Further, orally agreed that all the interiors and other fixtures will have to be borne by defendant No.1 at his own cost and in pursuance of the same defendant No.1 has carried out the interior works at his cost. The defendant No.1 has 16 OS No.5669/2020 & OS No.5732/2020 also credited an amount of Rs.63,10,000/- to the account of defendant No.2 and paid an amount of Rs.19,90,000/- through cash to the defendant No.2 on various dates. In all, the defendant No.2 has received Rs.83 lakhs. The details of the payment made and all the dates have been narrated in Page No.9 and 10 of the written statement. The defendant No.1 paid the said amount by borrowing loan from the Tata Capital by pledging his property. He is paying EMI of Rs.1,43,471/-. Defendant No.2 by playing fraud and in collusion with the plaintiffs, in order to knock off the valuable property, impersonated defendant No.1 and made forged, concocted and a got up document on 03.10.2019 and got cancelled the Agreement on 16.03.2019 by presenting some other person as the defendant No.1 before the Jayanagara Sub-Registrar Office. In this connection, he approached the Police Station, but they did not heed the defendant No.1, therefore the copy of the complaint is sent to the jurisdictional Superintendent of Police through registered post. Plaintiff No.1 and defendant No.2 are in the habit of making forged documents and making illegal gain themselves.
17 OS No.5669/2020& OS No.5732/2020
15. The plaintiff No.1 is facing criminal cases. Flat bearing No.203, in Marvel Apartments, in which defendant No.2 is the owner as per the Sharing Agreement dated 24.11.2018 has entered into registered Agreement of Sale on 04.01.2019 with one Manjunath V.G., and the same has been cancelled by impersonating the said Manjunath through Cancellation Deed dated 17.09.2020. The said matter was reported to the Police Station and thereafter the plaintiffs and defendant No.2 got registered the Sale Deed in favor of said Manjunath on 15.10.2020. Defendant No.2 has also entered into Agreement of Sale dated 20.09.2018 in respect of Flat No.301 with one Ramachandra and subsequently the same has been sold to the defendant No.1 through registered Sale Deed dated 28.01.2018 without cancelling the same. The very same person also sold Flat No.105 of the said Marvel Apartments through Agreement to defendant No.1 on 27.04.2019 without disclosing the true facts. After the Cancellation of Agreement of Sale dated 16.03.2019 through a forged and concocted document, plaintiffs have entered into a registered Partition Deed dated 27.09.2019. The plaintiffs are guilty of suppression of material facts and therefore, are not 18 OS No.5669/2020 & OS No.5732/2020 entitled for any relief of injunction that too the defendant No.1 is in possession of the flat. Therefore, defendant No.1 has sought for dismissal of the suit with the cost.
16. Based on the aforesaid pleadings, the following of issues were framed by my predecessor in office:-
1. Whether the plaintiffs prove that they are in lawful possession & enjoyment of the suit 'B' schedule property as on the date of filing this suit?
2. Whether the plaintiffs prove alleged interference by the defendants?
3. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed against the defendants?
4. What order or decree?
17. As noted supra, in view of the order passed in OS No.5669/2020 dated 31.07.2021, OS No.5732/2020 is clubbed with OS No.5669/2020 for common disposal. The plaintiff in OS No.5669/2020 and defendant No.1 in OS No.5732/2020 examined as PW1 and got marked Ex.P1 to 32. Defendant No.1/R.Ramaswamy in OS No.5669/2020 and plaintiff No.1 in OS No.5732/2020 examined as DW1 and got marked Ex.P1 to 15.
19 OS No.5669/2020& OS No.5732/2020
18. Heard the arguments of the learned Counsels appeared for both sides. Perused the records and written arguments filed by both side.
19. My findings on the issues in OS No.5669/2020 are as under:-
Issue No.1 to 3 : In the negative Issue No.4 : As per final order, for the following:
20. My findings on the issues in OS No.5732/2020 are as under:-
Issue No.1 : In the affirmative
Issue No.2 & 3: In the negative
Issue No.4 : As per final order,
for the following:
REASONS
21. In order to prove the case, plaintiff in OS No.5669/ 2020 and defendant No.1 in OS No.5732/2020 has filed affidavit in lieu of examination in chief and got examined as PW1 on oath. He has reiterated the allegations made in the plaint of OS.No.5669/2020 and defence taken in OS No.5732/2020 got marked 32 documents as Ex.P1 to
32. Ex.P1 is the General Power of Attorney dated 18.09.2020, Ex.P2 and 3 are the Gas Agency Bills, Ex.P4 to 7 are the Newspaper Bills, Ex.P8 is the Internet bill, 20 OS No.5669/2020 & OS No.5732/2020 Ex.P9 is the Cable connection bill, Ex.P10 is the ICICI Bank statement, Ex.P11 to 18 are the photos, Ex.P19 is the CD, Ex.P20 is the receipt, Ex.P21 is the postal cover, Ex.P22 is the complaint in PCR No.58/2021, Ex.P23 is the copy of FIR, Ex.P24 is the complaint in PCR No.423/2019, Ex.P25 is the copy of FIR, Ex.P26 is the copy of Sale Agreement dated 16.03.2019, Ex.P27 is the legal notice dated 17.03.2020, Ex.P28 and 29 are the postal receipts, Ex.P30 is the Partition Deed dated 27.09.2019, Ex.P31 is the Form No.15, Ex.P32 is the copy of the complaint.
22. In order to prove the case, defendant No.1 in OS No.5669/2020 and plaintiff No.1 in OS No.5732/ 2020 has filed affidavit in lieu of examination in chief and got examined as DW1 on oath. He has reiterated the defence taken in the written statement of OS No.5669/2020 and allegations made in plaint of OS No.5732/2020 and got marked 15 documents as Ex.D1 to 15. Ex.D1 is the Partition Deed dated 18.10.2010, Ex.D2 is the Amalgamation Deed dated 02.06.2014, Ex.D3 is the Joint Development Agreement dated 31.10.2014, Ex.D4 is the Sale Agreement without possession dated 16.03.2019, Ex.D5 is the Partition Deed dated 27.09.2019, Ex.D6 is 21 OS No.5669/2020 & OS No.5732/2020 the Release Deed dated 09.10.2019, Ex.D7 is the Form-B Property Register extract, Ex.D8 is the Tax invoice, Ex.D9 is the absolute Sale Deed dated 28.03.2019, Ex.D10 to 14 are the photos, Ex.D15 is the CD.
23. The defendant No.1 and 2 in OS No.5669/2020 and plaintiffs in OS No.5732/2020 have preferred an appeal against the order passed on IA's dated 21.04.2021 in MFA No. 2642/2021 C/W MFA No.2644/2021(CPC). The Hon'ble High Court of Karnataka appointed Sri.Skanda, Advocate as Court Commissioner. The said Court Commissioner visited the suit flat and submitted his report. Sri.Skanda, Court Commissioner examined as CW1 and marked Ex.C1, 2 and MO1.
24. Ex.C1 is the copy of the order passed in MFA No.2642/2021 C/W MFA No.2644/2021, Ex.C2 is the report submitted by Court Commissioner, Ex.C2(a) is the signature of the witness, Ex.C2(b) is the CD and MO1 is the keys and bag.
This is all the oral and documentary evidence placed on record by the parties to the suits in support of their respective contentions.
22 OS No.5669/2020& OS No.5732/2020
25. Advocate for plaintiff in OS No.5669/2020 and defendant No.1 in OS No.5732/2020 argued that both the suits are filed for the relief of permanent injunction. The plaintiff of OS No.5669/2020 has filed the suit on the basis of the possession over the suit property. On 24.11.2018, Sharing Agreement was entered into between defendants No.1 to 3 and present suit property fallen to the share of defendant No.3, therefore, it was not included in the Sharing Agreement. On 16.03.2019, defendant No.3 was entered into an agreement of sale in respect of suit property with the plaintiff and as per the terms of agreement plaintiff had paid Rs.29 lakhs out of total consideration of Rs.30 Lakhs. Even thereafter defendant No.3 fails to execute the sale deed, plaintiff got issued legal notice on 17.03.2020. Thereafter, on 18.09.2020, the defendant No.3 executed the irrevocable GPA in favor of the plaintiff and handed over the possession of the suit property to the plaintiff. Accordingly, the plaintiff is in possession and enjoyment of the suit property. After filing of the suit by the plaintiff, the defendants No.1 and 2 have filed OS No.5732/2020 for the relief of permanent injunction in respect of the very same suit schedule property. In that suit, they have 23 OS No.5669/2020 & OS No.5732/2020 claimed that on 19.10.2019 their son by name Praveen executed the Release Deed in respect of the suit schedule property. Accordingly, they are in possession of the said suit property. On service of summons in OS No.5732/2020, this plaintiff (defendant No.1 in OS No.5732/2020) appeared, filed the written statement and narrated the particulars of the payment made to Praveen to the tune of Rs.89 lakhs, the said Praveen and his parents by impersonation got registered the cancellation of Ex.P1/Agreement of Sale. In that connection, complaint is filed before the Police and after investigation charge-sheet has been filed. The plaintiffs of OS No.5732/2020 have not approached the Court with clean hands and therefore, they are not entitled for equitable relief of permanent injunction. Plaintiff of OS No.5669/2020 examined as PW1 and got marked Ex.P1 to P32 documents. To show the possession, the plaintiff has produced the receipts issued by Gas Agency, Paper Agency, internet bill, cable bill, Bank document, photographs taken at the time of handing over the key by defendant No.2/Praveen to the plaintiff and power of attorney. The documents produced by the plaintiff clearly establish that the plaintiff is in possession and enjoyment 24 OS No.5669/2020 & OS No.5732/2020 of the suit property. The evidence of the Court Commissioner and his Report has no relevance in the present case as the suits are filed for the relief permanent injunction. In catena of decisions Hon'ble Supreme Court and Hon'ble High Court of Karnataka have held that the Commissioner's Report and his evidence cannot be taken into consideration, it amounts to collection of evidence. The injunction suit cannot be decided upon on the basis of the Court Commissioners' Report or his evidence but the same has to be established on the other evidence which is placed on records. The oral evidence and documentary evidence produced by the plaintiff are sufficient to prove that he is in possession and enjoyment of the suit property. The defendants No.1 and 2 (plaintiff No.1 and 2 OS No.5732/2020) have placed entire reliance on the revenue documents. Praveen, who executed the Ex.26/Agreement of Sale and Ex.P1/Power of Attorney, has not challenged the oral and documentary evidence of PW1. The plaintiff has filed a comprehensive suit for specific performance of contract of Ex.P26/agreement of sale in OS No.2952/2022, which is pending on the file of City Civil and Sessions Judge (CCH-9). As per Sec.85 of Evidence Act, Ex.P1/Power of Attorney has got 25 OS No.5669/2020 & OS No.5732/2020 presumptive value. Revenue documents are not sufficient to prove the possession. DW1 has cheated the several persons. Apart from filing of complaint by the plaintiff, another criminal complaint has also been filed against him before the Anekal Court. The plaintiffs of OS No.5732/2020 have filed the suit by suppressing material facts and approached the Court with unclean hands. Therefore, they are not entitled for the relief of permanent injunction. Hence, he prayed to decree the OS No.5669/2020 and to dismiss OS No.5732/2020 with cost. In support of his arguments, has placed reliance on the following judgments:-
1. (2008) 4 SCC 182 (Thimmaiah Vs Shabira & Others)
2. 2015(3) KLJ 75 (M. Krishnappa Vs. K.T. Srinivas and Others.
3. (2008) 11 SCC 1 (Mandali Ranganna and Others Vs. T. Ramachandra and Others)
4. (2005) 11 SCC 109 (Kanchusthabam Satyanarayan & other Vs. Namuduri Atchutaramayya & Others)
5. (2000) 6 SCC 566 ( Ajaib Singh & other Vs. Tulsi Devi)
6. (2013) 3 KLJ 661 (Sri Harishraj Urs Vs. Sri Vinayraj Urs)
7. (2012) 11 SCC 574 (Badami (deceased) by her LR Vs. Bhali )
8. (2013) 2 SCC 398 (Kishore Samrite Vs. State of Uttar Pradesh and others) 26 OS No.5669/2020 & OS No.5732/2020
9. (2019) 3 SCC 191 ( Bhimabai Mahadeo Kambekar (dead) through legal representatives Vs. Arthur Import and Export Company & Others)
10. ILR 2001 KAR 488 (T. Siddeshi Vs. The Deputy Commissioner and Others)
11. 2015 SCC Online Kar 623 (Rajkumar Menon Vs. Venktesh and others)
12. (2004) 6 SCC 756 (Gupte Cardiac Care Centre and Hospital Vs. Olympic Pharma Care (P) LTD.,)
13. RSA.No.100791/2019 (Kar HC)( Sri Mohamad gouse Vs Abhiman Housing Society)
14. ILR 1996 Kar 1443 (Manmohan Service Station Vs Mohammed Haroon Japanwala)
15. ILR 2004 Kar 325 (Rock Line Constructions Vs Trupthi K. Patel)
26. Per contra, the learned Counsel for defendant Nos.1 and 2 in OS No.5669/2020 and plaintiffs in OS No.5732/2020 argued that their son Praveen has executed the Release Deed in their favor on 09.10.2019 in respect of suit schedule property and therefore, the defendant No.1 is the owner and in possession of the suit schedule property. The plaintiffs claims the right over the suit property on the basis of the Ex.P26/Agreement of Sale dated 16.03.2019 and Ex.P1/GPA, alleged to have executed by Praveen. According to him, Ex.P1/GPA is a concocted document. Though in the first page of that document is shown as 18.09.2022, in the last page of that document Notary admitted the execution before him 27 OS No.5669/2020 & OS No.5732/2020 by putting seal and signature on 02.11.2020, that too in the Ramanagara District. As the said Praveen executed Ex.D6/registered Release Deed in favor of DW1 on 09.10.2019, he has no right to execute the alleged Ex.P6/ GPA in favor of anybody in respect of the suit schedule property. Even otherwise for the sake of argument Ex.P1/ GPA is accepted, the possession of the plaintiff is as a Power of Attorney Holder i.e., as an agent and not as purchaser. The photographs produced by defendant No.1 at Ex.D10 to D14 are dated 16.05.2019. The said photographs clearly disclose that the DW1 was performing the pooja in the suit schedule property. The Court Commissioner visited the suit property as per the direction of Hon'ble High Court of Karnataka and submitted the Report as per Ex.C2. In the said Report, he has clearly mentioned about the damage caused to the terrace door, the items found in the suit property belong to the defendants. All the cupboard keys handed over by the family member of DW1. In cause title of OS No.5669/2020 and on verification affidavit filed by the plaintiff in that suit, address of the plaintiff shown as No.278, M.S.Ramaiah City, 5th Main, J.P.Nagar, 8 th Phase, Bengaluru and not shown the address of the suit 28 OS No.5669/2020 & OS No.5732/2020 property. Whereas, DW1 has shown in the cause title of OS No.5732/2020 and in verification affidavit his address as suit flat. The documents on which the plaintiff placed reliance, are created for the purpose of this suit which are subsequent to the date of the filing of the suit.
Therefore, the said documents are no way helpful to the plaintiff to prove the plaintiff was in possession of the suit property as on the date of the filing of the suit. However, the documents produced by DW1 clearly disclose that as on the date of the filing of the suit, he and his family members are in possession and enjoyment of the suit schedule property. Therefore, he prayed to dismiss OS No.5669/2020 and decree the OS No.5732/2020 and restrain the PW1 from interfering with the peaceful possession and enjoyment of the suit schedule property. In support of his arguments, has placed reliance on the following judgments:-
1. 1980 AIR (S C) 52 (Supdt. And Rememberancer of Legal Affairs, West Bengal Vs anil Kumar Bhunja and others)
2. 2010 AIR SCW 7091 (Ramjas Foundation & another Vs Union of India and Ors).
3. 1989 AIR (S C) 1269 (Smt. Chandrakantaben Vs Vadilal Bapalal Modi) 29 OS No.5669/2020 & OS No.5732/2020
27. I have gone through the judgments relied on by both side and kept in mind the views taken in the said judgments while appreciating the evidence and coming to the conclusion. I respectfully agree with the views taken the said judgments.
28. At outset is necessary to note that Plaintiff in OS No.5669/2020 is the defendant No.1 in OS No.5732/2020, defendant No.1 and 2 in OS No.5669/2020 are the plaintiffs in OS No.5732/2020.
Defendant No.3 in OS No.5669/2020 is the defendant No.2 in OS No.5732/2020, in both the cases this defendant has not appeared and not contested the case. In other words, the defendant No.3 in OS No.5669/2020 is the defendant No.2 in OS No.5732/2020, has not contested the case. Both the suits are filed for the relief of bare injunction in respect of the "suit flat". There is rival claim with regard to the possession of the suit flat.
29. It is also necessary to note that the defendant No.1 and 2 in OS No.5669/2020 and plaintiffs in OS No.5732/2020 have preferred MFA No. 2642/2021 C/W MFA No.2644/2021(CPC) before Hon'ble High Court of Karnataka against the order passed on IA's dated 21.04.2021. In that case, CW1/Sri.Skanda, Advocate 30 OS No.5669/2020 & OS No.5732/2020 appointed as Court Commissioner, he visited the suit flat and submitted Ex.C2/Report, Ex.C2(b)/CD and MO1/keys and bag.
30. Plaintiff in OS No.5669/2020 claims the possession over the suit flat as a purchaser and based the claim on Ex.P26/Agreement dated 16.03.2019, Ex.P1 to 10/ documents, Ex.P11 to 18/photos, Ex.P19/CD. The plaintiffs in OS No.5732/2020 claim the possession over the suit flat on the basis of the ownership and based the claim on the documents and photographs produced at Ex.D1 to 15.
31. Both side relied on several judgments rendered by Hon'ble Apex Court and Hon'ble High Courts. From the judgments relied on by the learned Counsel for plaintiff in OS No.5669/2020 and defendant No.1 is OS No.5732/2020 emerges settled law that in suit for permanent injunction, the plaintiff has to establish that he is in possession in order to entitle to a decree for permanent injunction. The grant of discretionary relief such as injunction being in the nature of equitable relief must be granted inter-alia on considerations of equity and justice, and the person who is himself guilty of inequitable conduct cannot claim such relief. Person 31 OS No.5669/2020 & OS No.5732/2020 making averments as per convenience without regard for truth and such conduct would be precluded from getting equitable relief. Granting or refusing of injunctions is a matter resting in the sound discretion of the Court and consequently no injunction will be granted whenever it will operate oppressively or inequitably or contrary to the real justice of the case. Parties must come before the Court with clean hands. Person filing suit based on falsehood and concealment of vital Documents to gain advantage, guilty of playing fraud on Court as well as on the opposite party. The revenue records or mutation entries neither create nor extinguish title over property. Mutation entries do not have any presumptive value of title. A presumption is available in regard to the execution of the power of attorney u/s 85 of the Evidence Act. In a suit for bare injunction, there cannot be any delegation to Commissioner to ascertain as to who is in possession of the suit property and if permitted, it amounts to collection of evidence, which is impermissible in a bare suit for injunction. The Commissioner cannot be appointed to find out as to who is in possession of the property. In a suit for injunction, the question as to who is in possession of the property, is a matter to be decided 32 OS No.5669/2020 & OS No.5732/2020 by the Court on the basis of the evidence, either oral or documentary, to be adduced by the parties. That function cannot be delegated to the Commissioner who cannot find out as to who is in possession of the property.
32. The learned Counsel for defendant No.1 and 2 in OS No.5669/2020 and plaintiffs in OS No.5732/2020 on 3 citations of Hon'ble Apex Court. In 1st citation discussed about meaning of the word "possession" with reference to Section 29(b) of Arms Act 1959. In 2nd citation, it has held that a person who does not come to the Court with clean hands is not entitled to be heard on the merits of his grievance and in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32, 226 and 136 of the Constitution but also to the cases instituted in other Courts and Judicial Forums. The object underlying the principle is that every Court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by resorting to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of the issue(s) arising in the case. In 3rd 33 OS No.5669/2020 & OS No.5732/2020 citation, it has held that the possession of the agent is the possession of the principal.
33. When a suit filed for perpetual injunction on the basis of the possession the primary duty of the Court would be to verify as to who among parties were in possession of the property as on the date of filing of the suit. The relief of permanent injunction can only be granted to person who is in possession of property. A relief of injunction is a discretionary relief and the discretion is meant to be exercised judicially and not capriciously. The suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. A party is required to disclose all material facts which may one way or the other, affect the decision. A person deliberately concealing material facts from Court is not entitled to any discretionary relief. The Court can refuse to hear such person on merits. A person seeking relief of injunction is required to make honest disclosure of all relevant statements of facts otherwise it would amount to an abuse of the process of the Court. It is well settled that if the plaintiff comes to Court with a material averment that turns to be false, the Court would be slow in exercise of its power to grant the discretionary 34 OS No.5669/2020 & OS No.5732/2020 relief of injunction in favor of such a plaintiff. If the plaintiff has come to Court with unclean hands, he would not be entitled to relief of injunction against the defendant.
34. It is also settled law that the plaintiff must succeed or fails on his own case and cannot take advantage of the weakness of the defendant's case to secure a decree. Whenever, a party approaches the Court for the relief, based on the pleadings and issues, has to prove his case. A suit has to be decide on the merits and demerits of the party who approaches the Court. Weakness of the defendant cannot be considered as a trump card for the plaintiff. In this regard, a reference may be made by a decision reported in 1998 SAR (Civil) 390 (Punjab Urban Planning and Dev. Authority V. M/s Shiva Saraswati Iron and Steel Re-rolling mills) and the decision relied on by the defendants reported in 2004(1) KCCR 662 (K. Gopala Reddy (deceased) by LRs Vs. Suryanarayana and others). As per rule of evidence a party who asserts the affirmative of an issue, the burden of proof lies on him to prove that fact. In both suits the plaintiff/s claims that they are in possession of the property described as suit flat. Therefore, the entire burden is on the respective 35 OS No.5669/2020 & OS No.5732/2020 plaintiff/s to prove that he/they are in possession of the flat as on the date of the filing of the suit. If the answer is in affirmative then only the question of considering the other issues like obstruction by the defendant/s and what relief entitled for arises for consideration. If the answer is in negative, then the question of considering other issues does not arise for consideration and suit will have to be dismissed.
35. Before considering the merits of the case, it is necessary to record finding, with regard to the evidence and report of Court Commissioner. The learned Counsel for defendants in OS No.5669/2020 and plaintiffs in OS No.5732/2020 focused much on the report submitted by the Court Commissioner and on the evidence of CW1. According to him, the Report of the Court Commissioner and the evidence of CW1 clearly disclose that the DW1 and his family members are in possession of the suit property. Per contra, according to the learned Counsel for plaintiff in OS No.5669/2020 and defendant No.1 in OS No.5732/2020 in bare injunction suit, appointment of Court Commissioner to ascertain who is possession of the suit property is prohibited and therefore, according to him the Report of Court Commissioner or his evidence 36 OS No.5669/2020 & OS No.5732/2020 has no consequence and therefore, it cannot be looked into.
36. In this case, the Court Commissioner was appointed by Hon'ble High Court of Karnataka in MFA.No. 2642/2021 and 2644/2021. In para No.4 of its judgment, the Hon'ble High Court of Karnataka clearly observed that Sri.Skanda, Officer of the Court appointed as Court Commissioner to ascertain the status of said property and submitted his Report. It is necessary to note that the Hon'ble High Court of Karnataka has not appointed the Court Commissioner to ascertain who is in possession of the suit property.
37. As it could be seen from the views taken by Hon'ble High Court of Karnataka in a judgment relied on by learned Counsel for plaintiff, it is very much clear that the Court Commissioner cannot be appointed to find out as to who is in possession of the property in a suit filed for bare injunction. In bare injunction suit, the question as to who is in possession of the property is a matter to be decided on the basis of the evidence placed on record of the parties to the suit. At any cost such function cannot be delegated to the Court Commissioner.
37 OS No.5669/2020& OS No.5732/2020
38. With this background let me appreciate the evidence on record. OS No.5669/2020 has been filed on 12.11.2020 and OS No.5732/2020 has been filed on 17.11.2020. The Court Commissioner visited the suit flat on 06.07.2021 between 2.40 to 3.45 P.M.. It means the Court Commissioner visited the suit flat after lapse of almost 8 months from the date of filing of the suit. In view of the fact that both the suits filed claiming the relief of bare injunction on the basis of the possession, the Court is to ascertain whether the plaintiff of respective suits are able to prove their possession over the suit flat as on 12.11.2020 in OS No.5669/2020 and as on 17.11.2020 in OS No.5732/2020. Firstly, the Court Commissioner visited the suit property on 06.07.2021 and therefore, the Report submitted by the Court Commissioner is no way helpful to ascertain who was in possession of the suit on the date of the filing of the suit as on 12.11.2020 and as on 17.11.2020. Secondly, as it could be seen from the ratio laid down by Hon'ble High Court, it is the duty of the Court to ascertain who was in possession of the suit flat as on the date of the filing of the suit from the material placed before the Court by respective parties and Court cannot delegate such power 38 OS No.5669/2020 & OS No.5732/2020 to the Court Commissioner. Lastly, even for the sake of argument if we consider Ex.C2/Report of the Court Commissioner, in that case also it is not possible to determine who was in possession of the suit flat as on the date of the filing of the suits. In Para No.16 the Court Commissioner has given his opinion with regard to the possession of the property. For the sake of convenience the para No.16 of Ex.C2/Report is extracted and reproduced here:-
"16. Hence, I have refrained myself from concluding as to who is in possession of the Apartment."
39. It is evident from the above reproduced portion of the Report that he refrained himself from concluding as to who is in possession of the apartment. It means the overall opinion expressed by the Court Commissioner is that he cannot give any opinion as to who is in possession of the suit property as on the date of his visit. It has come in the evidence of CW1/Court Commissioner has not collected any material or documents to ascertain the movables found in the said flat belongs to whom. The cumulative effect of oral and documentary evidence coupled with the Report submitted by the Court Commissioner, it could be said that the evidence of CW1/ 39 OS No.5669/2020 & OS No.5732/2020 Court Commissioner cannot be looked into at all to ascertain who is in possession of suit flat. For the reasons discussed above, I do not find any substance in the arguments submitted by learned Counsel for defendants in OS No.5669/2020 and plaintiffs in OS No.5732/2020 and the possession of the suit flat is to be ascertained by excluding the evidence of CW1/Court Commissioner and Ex.P2/Court Commissioner Report.
In the light of the evidence placed on record by the parties to the suit, submissions made by both the side and in the light of settled law, let me consider the issues of the cases.
40. Issue No.1 in OS No.5669/2020:- It is the definite case of the plaintiffs that defendant No.3 acquired the suit property by virtue of the Sharing Agreement dated 24.11.2018 in between his family members. Defendant No.3 entered into Ex.P1/Agreement without possession with plaintiff on 16.03.2019 and agreed to sell suit flat for Rs.30,00,000/- and collected around Rs.29,00,000/- on different dates but fails to execute the sale deed as per the terms of the agreement. Hence, plaintiff got issued Ex.P27/notice to the defendants. Thereafter, the defendant No.3 has come forward and has executed 40 OS No.5669/2020 & OS No.5732/2020 Ex.P1/GPA dated 18.09.2020 and agreed to get execute the sale deed during the 3rd week of December 2020 and handed over the possession of the suit flat. Since then, the plaintiff is in possession of the suit flat. Such being the facts, on 10.11.2020 at about 11.00 a.m., the defendant and his associates attempted to interfere with the possession of the plaintiff over the suit property. Therefore, the plaintiff has filed the suit for permanent injunction restraining the defendants from interfering with his peaceful possession. In order to prove the plaint allegations with regard to the possession, plaintiff examined himself as PW1 and has reiterated the plaint allegation and got marked Ex.P1 to P32.
41. In order to prove the possession of the suit property, plaintiff mainly placed reliance on Ex.P26/Agreement of Sale dated 16.03.2019, Ex.P31/Form No.15 issued by Sub-Registrar, J.P.Nagar, Bengaluru, Ex.P1/GPA dated 18.09.2020, Exs.P2 to 10, 20, 21/gas receipts, paper bills, internet receipts, DTH connection receipts, bank account extract, maintenance receipt, postal cover and Exs.P11 to P18/photographs. On these documents, PW1 claims that he is in possession of the property as on the date of the filing of the suit.
41 OS No.5669/2020& OS No.5732/2020
42. According to the plaintiff, the suit flat has been fallen to the share of defendant No.3 pursuant to the sharing agreement dated 24.11.2018. Admittedly, the alleged Sharing Agreement is not produced in this case. No doubt it is true that DW1 in his evidence admitted about entering of sharing agreement and plaintiffs and defendant No.2 are parties to the said document. In the absence of any primary evidence, mere admission given by DW1 about entering of sharing agreement itself is not sufficient to presume that the suit flat fallen to the share of defendant No.2. No clear evidence produced by the plaintiff to prove that the defendant No.2 was the owner of the suit flat as on the date of execution of Ex.P26/agreement of sale. Therefore, I do not find any substance in the arguments of learned Counsel for plaintiff.
43. As far as possession of suit flat is concerned in the cross-examination, PW1 has stated he is law graduate and doing building contract business. Further he has stated as under:-
"ಜಿ.ಪಿ.ಎ.ದ ಅಧಾರದಲ್ಲಿ ದಾವಾ ಆಸ್ತಿಯ ಸ್ವಾಧೀನವನ್ನು ನನಗೆ ಕೊಟ್ಟಿದ್ದ ರು. ಜಿ.ಪಿ.ಎ. ಮೂಲಕ ಸ್ವಾದೀನ ಕೊಟ್ಟಿಲ್ಲ ದಿದ್ದ ರೆ, ಆ ಆಸ್ತಿಗೆ ನಾನು ಸ್ವಾಧೀನ ಹೊಂದಲು ಆಗುತ್ತಿರಲಿಲ್ಲ ಎಂದರೆ ಸಠಿ ಆ ಜಿ.ಪಿ.ಎ.ದ ಆಧಾರದಲ್ಲಿಯೇ ನಾನೀಗ ಆ ಆಸ್ತಿಯ ಸ್ವಾ ಧೀನದಲ್ಲಿದ್ದೇನೆ."42 OS No.5669/2020
& OS No.5732/2020
44. It is evident from the above reproduced evidence of PW1 he was given possession of the suit property on the basis of GPA. If the GPA was not given, it would not have possible for him to get the possession of the suit property and he is possession of the property as a power of attorney holder.
45. Per contra, in the present case, DW1 claims that his son defendant No.3/Praveen executed Ex.D6/Registered Release Deed and by giving up his right handed over the possession of the suit property to him on 09.10.2019. On the basis of the said registered Release Deed, the name of DW1 and his wife entered into in the revenue records and their name is entered in the owner and occupier column. Further according to DW1, in view of execution of Release Deed on 09.10.2019, defendant No.3 was no right to execute the GPA on 18.09.2020. Even otherwise also the alleged GPA surrounded with suspicious and therefore the alleged GPA has no consequence.
46. In the light of submissions of both side, now the question is whether the plaintiff is able to prove the possession over the suit flat. The prime document on 43 OS No.5669/2020 & OS No.5732/2020 which the plaintiff placed reliance is Ex.P1/Power of Attorney. On perusal of the Ex.P1/GPA, it is noticed that at the title page of GPA, the date of execution is mentioned as 18.09.2020. At page No.9 of Ex.P1/GPA, the Notary Public admitted the execution of GPA on 02.11.2020. As per Sec.85 of the Indian Evidence Act, the Court shall presume that every document purporting to be a Power of Attorney. At the same time it is very interesting to note that the parties to the GPA i.e., plaintiff and defendant No.3 are resident of Bengaluru and the property in respect of which the GPA has executed is also situated at Bengaluru. However, the Power of Attorney was notarized by public notary at Ramanagara. Absolutely, no explanation offered by the plaintiff as to why the Ex.P1/GPA was notarized by the Ramanagara District Notary Public. PW1 is the law graduate and doing building contract business. In other words, PW1 is not an ordinary man he is having legal knowledge. Such being the facts, at least he would have explained the special reasons as to why the GPA was notarized by Notary Public at Ramanagara District. Even neither in the pleadings nor in his oral evidence has whisper that the Ex.P1/GPA was notarized on 44 OS No.5669/2020 & OS No.5732/2020 02.11.2020 at Ramanagar District. In the plaint as well as in the evidence, the plaintiff has stated that defendant No.3 executed Ex.P1/GPA on 18.09.2020. Nowhere the plaintiff whispered that defendant No.3 executed Ex.P1/ GPA on 02.11.2020. No doubt it is true that Ex.P1/GPA the title sheet of the said document is dated 18.09.2020, but it was presented before Notary on 02.11.2020 before the Notary Public of Ramanagara District and he admits the execution of the Power of Attorney on 02.11.2020. Till Notary puts the seal and signature about admitting of execution said document, it has no legal sanctity. The plaintiff has suppressed the admitting the execution of the Power of Attorney on 02.11.2020 at Ramanagar District has been suppressed and not disclosed the said fact.
47. The evidence placed on record clearly discloses that as on 20.01.2020 his son Praveen/defendant No.3 has no right to execute GPA in respect of suit flat and to hand over the possession of the same because he has executed Ex.D6/registered Release Deed on 09.10.2019 and given up his right over the suit flat and therefore, he has no right to execute the GPA on 18.09.2020. On the basis of the Ex.D6/Release Deed the name of DW1 and his wife 45 OS No.5669/2020 & OS No.5732/2020 entered into revenue records in respect of the suit schedule flat. The claim of the DW1 is based on registered document and the claim of Plaintiff is based on unregistered document. In view of execution of Ex.D6/registered Release Deed dated 09.10.2019, defendant No.3 has no right to execute the GPA on 18.09.2020 as claimed by the plaintiff. In other words, Ex.P1/Power of Attorney was executed subsequent to the execution of the Ex.D6/Release Deed, the arguments of Advocate for plaintiff cannot be accepted. Therefore, without expressing any opinion in respect of Ex.P26/Sale Agreement in the considered view of this Court Ex.P1/Power of Attorney is no way helpful to prove the possession of the plaintiff over the suit schedule property.
48. If we exclude Ex.P1/GPA, the documents remain for consideration are Ex.P2 to P21. Now the question is whether Ex.P2 to P21 documents are sufficient to prove that plaintiff was in possession of the suit flat as on the date of the filing of the suit. As noted supra, the plaintiff has filed the suit on 12.10.2020. Exs.P2 and P3/gas agents receipts, Exs.P5 to P7/paper bills, Ex.P8/internet connection receipt, Ex.P9/receipt issued in connection 46 OS No.5669/2020 & OS No.5732/2020 with DTH service, Ex.P10/ICICI bank account extract and Ex.P21/postal cover are the documents pertains to the dates subsequent to the filing of the suit. Those documents are come into existence subsequent to the date of filing of the suit i.e., 12.10.2020 and therefore, those documents are no way helpful to the plaintiff to prove that he was in possession of the suit flat as on the date of filing of the suit. Ex.P20 is the receipt issued by Murbles Facilities Apartment dated 10.11.2020 for having received the maintenance amount. In the said receipt there is no mention about the suit flat. Therefore, it cannot be said that the said receipt is in respect of suit flat. Among Exs.P11 to P18/photographs, date found on Exs.P12 to P14 as 08.12.2020 and on rest of the photographs no date found. Firstly, nothing has been produced to demonstrate that the alleged photographs are in respect of suit flat. Secondly, said photographs are subsequent to the date of filing of the suit and therefore, said photographs are not sufficient to prove the plaintiff was in possession of the suit as on the date of the filing of the suit i.e., 12.11.2020. Ex.P4/paper bill is the only document dated 05.11.2020 prior to the date of filing of the suit. In the absence of any other admissible evidence, 47 OS No.5669/2020 & OS No.5732/2020 Ex.P4/paper bill itself is not sufficient to prove that the plaintiff is in possession of the suit property as on 12.11.2020, the date on which the suit was filed.
49. As per Rule of Evidence, the entire burden is on the plaintiff to prove that he is in possession of the suit property as on the date of filing of the suit. On appreciation of oral and documentary evidence produced by the plaintiff, it is noticed that the except the interested oral testimony of PW1, absolutely nothing has been produced by the plaintiff to prove the possession over the suit flat as on the date of filing of the suit i.e., 12.11.2020.
50. As discussed in above paragraphs, the Report submitted by the Court Commissioner cannot be taken into consideration to prove who are in possession suit flat. Therefore, the evidence of CW1/Court Commissioner to effect that the PW1 and his family member were there inside the house when he visited the house on 06.11.2021 is not helpful to prove that the plaintiff was in possession of the suit property as on 06.07.2021.
51. As noted supra, it is settled law that the person who approaches the Court for the relief of permanent injunction stating that he is possession of the property, 48 OS No.5669/2020 & OS No.5732/2020 the entire burden on that person to prove his possession over the property as on the date of the filing of the suit. Person making averments as per convenience without regard for truth and such conduct would be precluded from getting equitable relief. Parties must come before the Court with clean hands. Person filing suit based on falsehood and concealment of vital documents to gain advantage, guilty of playing fraud on opposite party. In a suit for injunction, the question as to who is in possession of the property, is a matter to be decided by the Court on the basis of the evidence, either oral or documentary, to be placed before the Court. In the instant case, on the appreciation of oral and documentary evidence by the plaintiff, in the considered opinion of this Court, plaintiff basically failed to prove his possession of the suit property as on the date of filing of the suit.
52. During the course of arguments the learned Counsel for plaintiff first time submits that he has filed comprehensive suit for specific performance of contract of an agreement on Ex.P26/Agreement of Sale dated 16.03.2019 in OS No.2952/2022, pending on the file of City Civil and Sessions Judge (CCH-9). In that suit, 49 OS No.5669/2020 & OS No.5732/2020 plaintiff has sought prayer with regard to the cancellation of Deed and Ex.D6/Release deed. The plaintiff has to get settle his rights over the suit flat and whether the defendant No.3 has any right to execute the Ex.P1/GPA either as on 18.09.2020 or on 02.11.2020 in OS No.2952/2022. This suit being the bare injunction suit, it is not just and proper to ascertain the correctness or genuineness of Ex.D6/Release deed, Ex.P26/Agreement and Ex.P1/GPA. The material available on record disclose that the plaintiff has not approached the Court with clean hands and is claiming the possession of the suit flat on the basis Ex.P1/Power of attorney executed subsequent to the execution of Ex.D6/registered Release Deed and projected that the said GPA was executed by Praveen on 18.09.2020 as against the fact that the Notary Public admitted the execution GPA on 02.11.2020. For the reasons discussed above, the case of the plaintiff fails for more than one ground and fails to prove his possession over the suit flat as on the date of filing of the suit. That apart, plaintiff has also not approached the Court with clean hands and filed the suit by suppressing the material facts. The assertion of plaintiff that he is in possession of the suit flat as on the 50 OS No.5669/2020 & OS No.5732/2020 date of filing of the suit remains intact without any proof. Under these circumstances, in the opinion of this Court, the plaintiff has failed to prove that he is in possession of the suit flat as pleaded in the plaint. Hence, I answer this issue in the negative.
53. Issue No.1 in OS No.5732/2020:- The plaintiffs have filed suit against the defendants for the relief of permanent injunction. The plaintiff and defendant No.3 of OS No.5669/2020 are defendant Nos.1 and 2 in this case. According to the plaintiffs, the defendant No.2 being their son executed registered Release Deed on 09.10.2019 and on the basis of the said registered Release Deed, the names of plaintiffs entered in the revenue records in respect of the suit schedule property. In pursuance of the said Release Deed, the plaintiffs are in possession and enjoyment of the suit schedule property. It is necessary to note that this suit is clubbed with OS No.5669/2020. To substantiate the assertions made in the plaint of OS No.5732/2020, plaintiff No.1 examined as DW1 and has reiterated the allegations made in the plaint of OS No.5732/2020. In support of his contention has produced 15 documents at Ex.D1 to D15. Ex.D1 to D3 and 5 are the Deeds and Agreements 51 OS No.5669/2020 & OS No.5732/2020 entered into between the plaintiffs and their family and builder. It is not in dispute that the suit flat belongs to the family of plaintiffs consisting of plaintiffs, defendant No.2 and daughters of plaintiffs. DW1 produced photographs at Exs.D10 to D14. Among the said photographs, Ex.D10 is the only photograph which bears the date as 16.05.2020. The said Ex.D10/photograph is in respect of the entire 'Marvel' Apartment. The said photograph is no way helpful to prove his possession over the suit schedule property. As far as Ex.D11 to D14/photographs are concerned, those photographs does not bear any date. Nothing has been produced by the defendants to show on which date said photographs were taken. Basing on Ex.D10/photograph, which bears the date as 16.05.2019, it cannot be said that Exs.D11 to D14/photographs are also taken on 16.05.2019. In the absence any other admissible evidence, in the opinion of this Court, Exs.D11 to D14/photographs are no way helpful to the plaintiffs to prove that they are in possession of the suit flat. Ex.D6 is the registered Release Deed, through which the defendant No.2/Praveen released his rights, title, share and interest in respect of the suit flat in favor of plaintiffs. As per Clause-6 of the 52 OS No.5669/2020 & OS No.5732/2020 said Release Deed, the physical possession and enjoyment of the suit schedule property was with the plaintiff themselves. On the basis of the said Release Deed, the plaintiffs have got also entered their names in revenue records as per Ex.D7. On perusal of Ex.D6/Release Deed, it is a registered document and therefore, it has got presumptive value. During the course of discussion of issue No.1 in OS No.5669/2020, it has been observed that the defendant No.1 of this case has filed the comprehensive suit for specific performance of contract on the basis of Ex.P26/agreement of sale. Since, Ex.D6/Release Deed is registered document, unless and until the said deed is set aside by the proper Civil Court, it has got presumptive value. The oral evidence of DW1 coupled with the Ex.D6/registered Release Deed and Ex.D7/Property Register is sufficient to prove that plaintiffs are in possession of the suit property as on the date of filing of the suit. Even though, the PW1 is subjected to cross-examination, nothing has been elicited to prove that the plaintiffs are not in possession of the suit schedule property. The suggestion made to PW1 to the effect that they are not in possession of the suit property and PW1 was in possession of the suit 53 OS No.5669/2020 & OS No.5732/2020 property has been denied. It is settle law that mere suggestion made to the witness in the cross-examination and denied is no evidence at all. No doubt, it is true that the revenue records or mutation entries does not create or extinguish title over the property, nor revenue entries have any presumptive value of title. The plaintiffs have claimed the possession over the suit property on the basis of the registered document coupled with the revenue entries. On appreciation of evidence on record, in the opinion of this Court, the plaintiffs of OS No.5732/2020 have successfully established their possession over the suit flat as on the date of filing of the suit basing on Ex.D6/registered Release Deed and Ex.D7/Property Extract. For the reasons discussed above, I answer this issue in the affirmative.
54. Issue No.2 and 3 in OS No.5669/2020:- In view of my finding on issue No.1, the plaintiff has miserably fails to prove his possession of the suit flat. Since the plaintiffs failed to prove the possession over the suit flat as on the date of filing of the suit, the question of proving alleged interference by the defendants does not arise at all. Consequently, the plaintiffs are not entitled for the relief of permanent injunction as prayed against the 54 OS No.5669/2020 & OS No.5732/2020 defendants. Hence, I answer both the issues in the negative.
55. Issue No.2 in OS No.5732/2020:- It is the specific case of the plaintiff that on 09.11.2020, defendant No.1 made an attempt to interfere with the possession of the plaintiffs over the suit flat by breaking opens the door when the plaintiffs were in their daughter's house and on the interference of neighbours, the attempt of defendant No.1 fails. The neighbours of the plaintiffs informed the about the mischief alleged have been done by the defendant No.1. Though the said fact has been reiterated by the DW1 in his oral evidence, nothing has been produced to demonstrate that the defendant No.1 made such an attempt to interfere with the possession and enjoyment of the suit flat by defendant No.1. In the plaint, the plaintiff specifically pleaded that the neighbors of the suit flat witnessed about the alleged interference made by the defendant No.1, but the plaintiffs have not made any efforts to examine the neighbors of the suit flat. They are the best witnesses to speak about the case of plaintiffs that who were in possession of the suit property and who interfered with the peaceful possession and enjoyment of the suit property. That apart, if really, such 55 OS No.5669/2020 & OS No.5732/2020 interference was made by the defendant No.1, at least, the plaintiffs would have filed Police complaint and if Police fails to receive complaint, in that case, would have filed a private complaint before the Court. No evidence produced by the plaintiffs about filing of complaint of private complaint against the defendant No.1 for the alleged interference on 09.11.2020. Except the interested testimony of DW1, absolutely nothing has been produced to prove the alleged interference by the defendant No.1. Non-examination of neighbours and non-initiating legal action are fatal to the case of the plaintiffs. For the reasons discussed above, this Court has considered opinion that though the plaintiffs have successfully proved their possession over the suit property, they miserably failed to prove the interference by defendant No.1 alleged in the plaint. The said assertion remains intact without any proof. Hence, I answer this issue in the negative.
56. Issue No.3 in OS No.5732/2020:- The plaintiffs have filed the suit against the defendants for the relief of perpetual injunction. As noted supra, the relief of injunction is a discretionary relief and the discretion is to be exercised judicially and not capriciously. The 56 OS No.5669/2020 & OS No.5732/2020 suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. The person who is himself guilty of inequitable conduct cannot claim such relief. Plaintiffs who making averments as per their convenience without regard for truth and such conduct would be precluded from getting equitable relief. Plaintiffs must approach the Court with clean hands. In the instant case, according to the plaintiffs, defendant No.1 intoxicating drinks, drug and various other things capable of inducing in the mind of defendant No.2, has managed to get registered Ex.P26/Sale Agreement dated 16.03.2019 without possession. Per contra, it is the contention of defendant No.1, that the plaintiffs in collusion with defendant No.2 and Sub-Registrar of Jayanagara behind back of defendant No.1, defendant No.2 by playing fraud in order to knock off the valuable property, has impersonated the defendant No.1 and made forged concocted and got up document on 03.10.2019 and got cancelled the agreement by presenting some other person as defendant No.1. Soon after, coming to the knowledge of the said fact, defendant No.1 lodged the complaint before the Thalagattapura Police Station, but Police have failed to 57 OS No.5669/2020 & OS No.5732/2020 take action. Therefore, he filed Ex.P22/Private complaint. On the basis of the said complaint, Ex.P23/FIR was registered. In Page No.11 of evidence, DW1 has admitted about the filing of charge-sheet by the Thalagattapura Police. In that charge sheet, DW1 is shown as accused No.2 and he has obtained the bail in that case. The plaintiffs have not at all whispered about filing of Ex.P22/complaint, registering of Ex.P23/FIR and filing of charge-sheet either at the time of filing of the suit or in at the time of giving examination in chief. During the course of cross examination for the first time, he admitted about the filing of charge-sheet by the Thalagattapura Police. The said criminal case is related to the suit flat. No explanation is offered by the plaintiffs as to why the said fact has not been disclosed by the plaintiffs. The evidence placed on record clearly discloses that the plaintiffs have not approached the Court with clean hands and filed the suit by suppressing the material facts. No doubt the plaintiffs have proved that they are in possession of the suit property as on the date of filing of the suit, but mere possession of suit flat itself is not sufficient to grant the relief of possession. To grant relief of injunction, the plaintiffs have to approach the Court with clean hands 58 OS No.5669/2020 & OS No.5732/2020 and disclose all the facts related to the suit flat. In the instant case, the plaintiffs have not approached the Court with clean hands and therefore, in the considered opinion of this Court, the plaintiffs are not entitled for the discretionary relief of permanent injunction. For the reason discussed above, I answer this issue in the negative.
57. Before parting with the judgment as per the direction of the Hon'ble High Court of Karnataka given in MFA No.2642/2021 C/W MFA No.2644/2021(CPC) the trial Court shall pass necessary orders with regard to the keys of the schedule 'B' property. In view of my findings on issue No.1 to 3 in both the cases, the plaintiff/s in both the suits are not entitled for the relief of permanent injunction. Under such circumstances, in the considered opinion of this Court, it is just and proper to hand-over the keys to the party from whom the Court Commissioner has collected.
58. The Court Commissioner has submitted the Report as per Ex.C2. After Para-18 in the said Report, the Court Commissioner has clearly mentioned as under;
59 OS No.5669/2020& OS No.5732/2020 "In the presence of all the parties, the door was locked and the keys have been handed-over to me by the respondent."
59. It is evident from the above reproduced portion of the Court Commissioner Report, that the keys have been handed-over to Court Commissioner by respondent i.e., Sri.K.Prathap Reddy/plaintiff in OS No.5669/2020 and defendant No.1 in OS No.5732/2020.
60. It is also necessary to note that in this case the Court Commissioner has been examined as CW1. In his oral evidence, has stated that he has collected the MO1/keys from Sri.Ramaswamy.P, i.e., the defendant No.1 in OS No.5669/2020 and plaintiff No.1 in OS No. 5732/2020. The evidence given by CW1 is contrary to his own Ex.C2/Report. The Court Commissioner's Report is the primary evidence and the evidence given by CW1 is contrary to the Ex.C1/Report. It is settled principle of law that the documentary evidence prevails over the oral evidence. As per Ex.C1/Report, the Court Commissioner collected the MO1/keys from K.Prathap Reddy. Therefore, in the opinion of this Court, Sri.K.Prathap Reddy/plaintiff in OS No.5669/2020 and 60 OS No.5669/2020 & OS No.5732/2020 defendant No.1 in OS No.5732/2020, is entitled for the possession of the keys which are marked as MO1.
61. Issue No.4 in OS No.5669/2020 and OS No.5732/2020:- In view of my findings on issue No.1 to 3 in OS No.5669/2020, the plaintiff has miserably fails to prove his possession of the suit flat, alleged interference by the defendants and therefore plaintiff is not entitled for the relief of permanent injunction.
62. In view of my findings on issue No.1 to 3 in OS No.5732/2020, the plaintiffs though prove their possession over the suit flat, have miserably fails to prove the alleged interference by the defendants and approached the Court without disclosing all relevant true facts in respect of suit flat therefore, plaintiffs are not entitled for the relief of permanent injunction. Accordingly, I proceed to pass the following.
ORDER The suit of the plaintiff filed in OS No.5669/2020 and suit of the plaintiffs filed in OS No.5732/2020 are hereby dismissed with cost.
61 OS No.5669/2020& OS No.5732/2020 Draw decree accordingly in both the suits. Office is directed to hand-over the keys to Sri.K.Prathap Reddy/ plaintiff in OS No. 5669/2020 and defendant No.1 in OS No.5732/2020, on proper identification and acknowledgment, after the appeal period is over.
Keep the original judgment in OS No.5669/2020 and a copy of this Judgment in OS No.5732/2020.
(Typed by the Judgment Writer on my dictation, the transcript revised and then pronounced by me on this the 10th day of November 2022).
(A.V.PATIL) LXIII ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-64), BENGALURU CITY.
ANNEXURE
1. List of witnesses examined for the plaintiff:
PW1 - Prathap Reddy
2. List of witnesses examined for the defendant:
DW1 - P.Ramaswamy
3. List of documents marked for the plaintiff:
62 OS No.5669/2020& OS No.5732/2020 Ex.P1 General Power of Attorney Ex.P2 & 3 Two Gas Agency receipts Ex.P4 to 7 4 Paper Agency Bills Ex.P8 Internet Bill Ex.P9 Cable Bill Ex.P10 ICICI Bank extract Ex.P11 to 18 Photos Ex.P19 CD Ex.P20 Receipt Ex.P21 Postal cover Ex.P22 C/C of Complaint in PCR No.58/2021 Ex.P23 C/C of FIR copy Ex.P24 C/C of Complaint in PCR No.423 /2019 Ex.P25 C/C of FIR copy Ex.P26 C/C of Sale Agreement dated 16.03.2019 Ex.P27 Legal notice dated 17.03.2020 Ex.P28 & 29 Two Postal receipts Ex.P30 C/C of Partition Deed dated 27.09.2019 Ex.P31 C/C of Form No.15 Ex.P32 Copy of the Complaint
4. List of documents marked for the defendant:
Ex.D1 C/C of Partition Deed dated
18.10.2010
63 OS No.5669/2020
& OS No.5732/2020
Ex.D2 C/C of Amalgamation Deed dated
02.06.2014
Ex.D3 C/C of Joint Development
Agreement dtd 31.10.2014
Ex.D4 C/C of Sale Agreement dated
16.03.2019
Ex.D5 C/C of Partition Deed dated
27.09.2019
Ex.D6 Copy of the Release Deed dated
09.10.2019
Ex.D7 Form-B Property Register extract
Ex.D8 Tax invoice
Ex.D9 C/C of Absolute Sale Deed dated
28.03.2019
Ex.D10 to 14 Photos
Ex.D15 CD
2. List of witnesses examined for the Court:
CW1 - Skanda, Advocate
3. List of documents marked for the Court :
Ex.C1 Order in MFA No.2642/2021
Ex.C2 Court Commissioner Report
Ex.C2(a) Signature of witness
Ex.C2(b) CD
64 OS No.5669/2020
& OS No.5732/2020
4. List of material objects marked :
MO1 Keys and bag
(A.V.PATIL)
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, (CCH-64), BENGALURU CITY.