Bangalore District Court
) Smt. Bhuvaneshwari vs Sri Kumaraswamy on 4 January, 2023
KABC010174012010
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26)
Dated this the 4th day of January, 2023
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.6456/2010
Plaintiffs: 1) Smt. Bhuvaneshwari
w/o Late R. Gopi
Aged about 40 years
2) Sri Lakshman
s/o Krishnaswamy
Aged about 38 years
No. 304, 1st Main
Panchasheela Nagar
Moodalapalya
Nagarabhavi Post
Bangalore-560 072.
(By Sri M. Shivaprakash, Adv.)
Vs.
Defendant: Sri Kumaraswamy
s/o Late B. Neelakantappa
Aged about 61 years
r/at No.301, 2nd Main, 7th Cross
Panchasheela Nagar
Moodalapalya
Nagarabhavi post
Bangalore-72.
(By Sri. B.N.M., Adv.)
Date of institution of the suit 14.09.2010
Nature of the suit For permanent and
2 O.S.No.6456/2010
mandatory injunctions
Date of the commencement 15.12.2016
of recording of evidence
Date on which the judgment 04.01.2023
Pronounced
Total duration Years Months Days
12 03 21
(SAVITRI SHIVAPUTRA KUJJI)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiffs against the defendant for the relief of permanent and mandatory injunctions.
2. The brief facts leading to the plaintiffs' case are summarized as under:-
That the subject matter of the suit is detailed in the schedule of the plaint which is said to be an immoveable property bearing site No.304 formed in Sy.No.52 of Malagalu village, Bengaluru North taluk bearing khatha No.99 ad presently called as Panchasheela Nagar, Moodalapalya post, Bengaluru. The plaintiffs claim to be the absolute owner in possession of the suit schedule property. The plaintiff No.1 said to have acquired northern portion of the schedule property under a registered sale deed dated 27.08.2010 and the plaintiff No.2 acquired southern portion under registered sale deed dated 27.08.2010. It is further stated that the originally the State Government on the eve of 25 th year Independence had acquired certain lands in Malagalu village and formed layout in Sy.No.52 consisting of residential sites and 3 O.S.No.6456/2010 distributed the same amongst the beneficiaries who belong to economically weaker section of the society and in the said process the suit site initially allotted to one Smt.Rukminiyamma who was given Hakkupatra dated 12.06.1974. It is further stated that subsequent to the said allotment, she got the khatha changed into her name and jurisdictional panchayath authorities assigned the schedule site with new khatha No.99 and she also said to have constructed a dwelling house by obtaining necessary sanction plan and licence and was in its peaceful possession by paying tax to the concerned authorities. It is stated that in the year 1991 in order to meet her domestic needs the said Rukminiyamma executed a GPA, sale agreement with possession and affidavit in favour of one Krishnaswamy on 18.02.1991 and the said Krishnaswamy who was none other than the father of the plaintiffs, came into possession of the schedule property along with his family members. It is further stated that he was paying tax pertaining to the said property. It is further urged by the plaintiffs that they have renovated the residential house existing on the schedule property earlier which was constructed by Rukminiyamma and as such since past 19 years prior to the filing of the suit, the plaintiffs were said to be in possession of the schedule property. It is further urged that the jurisdictional authority have also issued ration card and voters ID cards to the plaintiffs and they have also obtained water and telephone connection to the schedule property. It is further stated that the father of the plaintiffs Krishnaswamy in the month of August 2010 sold the schedule property in two portions in favour of the plaintiffs by executing two separate registered sale deeds as stated supra and allotted northern portion to the plaintiff No.1 and southern portion to the plaintiff No.2 measuring east-west 45 feet and north-south 15 feets each and ever since the date of said 4 O.S.No.6456/2010 sale deeds the plaintiffs are said to be in peaceful and lawful possession and enjoyment of the schedule property. However it is the allegation of the plaintiffs that the defendant who is a total stranger to the schedule property as well to the plaintiffs, residing in site No.301 illegally created some fraudulent documents with respect to site No.303 which is situated behind the schedule property on the western side. It is stated that the said site No.303 was in fact allotted to one Gowramma from the Tahasildar, but the defendant by creating fraudulent document in order to knock off site No.303, was interfering with the possession of the plaintiffs over the schedule property and the plaintiffs on coming to know about the said mis-deeds of the defendant, approached the Tahasildar and obtained an endorsement dated 09.09.2010. It is further alleged that on 15.08.2010 the defendant tried to put up illegal construction over site No.303 by interfering with the possession of the plaintiffs over the schedule property and tried to trespass over the said property with the help of rowdy elements and also threatened the plaintiffs of dire consequences and hence the plaintiffs approached the police complaining about illegal acts of the defendant. However it is alleged that the Police did not register the complaint nor have taken any action against the defendant. It is further alleged that once again on 22.08.2010 the defendant approached the plaintiffs and tried to interfere with their possession over the schedule property and though the plaintiffs once again lodged a complaint before the Police, but the Police said to have directed them to approach civil Court and hence they have to come up with the present suit seeking the injunctive relief.
3. It is revealed from the records that during pendency of the proceeding the plaintiffs got amended the plaint by incorporating additional pleadings at para-12(a) alleging that 5 O.S.No.6456/2010 subsequent to the filing of this suit and after grant of interim order of temporary injunction, on 18.09.2010 the defendant with the help of his labours illegally trespassed over the schedule 'A' property by encroaching on the western portion despite the plaintiffs making him aware about the interim order granted by this Court, but despite the said fact he illegally put up construction in violation of the interim order as detailed in schedule 'B' of the plaint which was also additionally incorporated by way of amendment. It is alleged in schedule 'B' of the plaint that the western portion of 'A' schedule property measuring 7.8 fts east to west and 30 feets north to south the defendant has encroached upon the said property and hence by way of additional prayer the plaintiffs have sought for mandatory injunction against the defendant seeking direction to the defendant to remove the said illegal construction put up over the 'B' schedule property and to hand over its possession to the plaintiffs.
4. In pursuance of service of suit summons, the defendant entered his appearance through his counsel and filed his written statement denying the entire claim of the plaintiffs. At the very outset it is contended by the defendant that he being the absolute owner of site No.303 in Sy.No.52, the plaintiffs had coerced him to sell the said property which is situated on the western boundary of the plaint schedule property. It is further contended that when his mother was alive the plaintiffs' father had pressurized her to sell the said property to him on the ground that he was in possession of the schedule property and it was convenient for him to purchase her property for which she refused ad therefore out of vengeance the present suit has been filed. The defendant has also questioned the correctness of description of the schedule property and also the alleged Hakkupatra issued to the original owner Rukminiyamma and also the measurement 6 O.S.No.6456/2010 of the said property. It is denied that the father of the plaintiffs had purchased the schedule property under GPA, sale agreement and affidavit from Rukminiyamma and that thereafter he sold the schedule 'A' property in two portions to the present plaintiffs equally, etc., as claimed in the plaint. It is the contention of this defendant that his younger brother Sri. B.N. Mohan Kumar obtained the site measuring east-west 40 feets and north-south 30 feets from the Govt. of Mysore on 12.06.1974 and ever since the date of the said grant he was in possession of the said site as absolute owner and constructed 2.16 square residential house on the said site by obtaining all the amenities to the said building and got the khatha changed to his name and his name was appearing in the panchayath records in the year 1981-82 and the panchayath had assigned number to the said property as 452 and collected tax from him. It is further contended that subsequently when the said site and building thereon were included within the Municipal limits, the said Mohan Kumar got changed the BBMP khatha into his name and started paying tax to the BBMP. He was said to be unmarried and died intestate on 08.12.1998 leaving behind him Smt.Bhagyamma his mother as his sole legal heir and consequently the said site and building devolved upon her as her absolute estate. It is further contended that the said Smt.Bhagyamma gifted the said property along with building in favour of this defendant under a registered gift deed dated 12.09.2007 and since then the defendant became the absolute owner of the said site and building. It is further contended that the defendant's property is bounded towards east by site No.304 i.e., alleged plaint schedule property, west by 2nd Main Road, north by site No.301 and south by site No.305. He has contended that he has not been able to get the khatha of this property into his name from BBMP since the authority has directed him to take steps in 7 O.S.No.6456/2010 that regard after receiving the order from the Government, but notwithstanding the said authority not issuing khatha in his name, he has been in possession of his property exercising his ownership rights over the same and therefore he has legally undertaken the construction work without encroaching upon the neighbouring properties including the schedule property as alleged by the plaintiffs. It is denied that he has manipulated and created fraudulent documents with respect to the said property and that it belonged to one Smt.Gowramma etc., as alleged by the plaintiff. It is contended that the plaintiffs have no legal right to question his title. He has further contended that he has been putting up his construction by confining the same within his property and he has not trespassed over the plaint schedule property. It is his counter allegation that the plaintiffs have falsely alleged that he has interfered with their possession over the plaint schedule property by encroaching thereupon etc., in the plaint and for these reasons the defendant has sought for dismissal of the suit.
5. On the rival contentions of the parties the following issues and addl. Issues have been framed by my predecessor-in- office:-
ISSUES
1) Whether the plaintiffs prove that they are in lawful possession of the plaint schedule property as on the date of suit?
2) Whether the plaintiffs further prove the alleged interference of defendant as stated in the plaint?
3) Whether the plaintiffs are entitled for the relief of permanent injunction as prayed for?8 O.S.No.6456/2010
4) What order or decree?
ADDL. ISSUES
1) Whether the plaintiffs prove that they are the owners of the 'B' schedule property?
2) Whether the plaintiffs prove that the defendant put up illegal construction in the 'B' schedule property?
3) Whether the plaintiffs prove that the site bearing No.304 measuring 45ftx30ft is in 'A' schedule property?
4) Whether the defendant proves that the court fee paid by the plaintiffs is insufficient?
5) Whether the plaintiffs are entitled for the relief of mandatory injunction?
6) What order or decree?
6. To substantiate their claim, the plaintiff No.2 has deposed before the court as PW1 and he has relied on 43 documents marked from Ex.P1 to P43. Per contra, the defendant has deposed before the Court as D.W.1 and he has also relied on 10 documents marked from Ex.D.1 to D.10.
7. Heard arguments.
8. On hearing and on perusal of the materials and evidence on record, my findings on the above issues are as under:
Issue No.1 : In the affirmative
Issue No.2 : In the negative
9 O.S.No.6456/2010
Issue No.3 : In the negative
Addl. Issue No.1 : In the negative
Addl. Issue No.2 : In the negative
Addl. Issue No.3 : In the negative
Addl. Issue No.4 : In the negative
Addl. Issue No.5 : In the negative
Issue No.4 and addnl. Issue No.6: As per final order,
for the following:
-: REASONS :-
9. Issue No.1 and Addl. Issue No 3 :- Since both these issues are interconnected, they are tried together to avoid repetition of facts. It is the specific claim put forth by the plaintiffs that the plaintiff No.1 is the owner in possession of the northern portion of suit schedule property and plaintiff No.2 is the owner of the southern portion of the schedule property by virtue of the registered sale deeds dated 27.08.2010 executed by their father by name Krishnaswamy. It is their case that the State Government on the eve of 25th year Independence had acquired certain lands in Malagalu village and formed residential layout in Sy.No.52 and distributed the same to the beneficiaries who were economically weaker section of the Society and in the said process the schedule site was also initially allotted to one Smt.Rukminiyamma w/o: Gopalakrishna and granted her Hakkupatra dated 12.06.1974 and subsequent to the said grant she started enjoying the said site as an absolute owner by paying tax to the concerned authority and also put up construction of building with the sanctioned plan and licence.
10 O.S.No.6456/201010. It is the further claim of the plaintiffs that on 18.02.1991 Rukminiyamma sold the schedule property in favour of the father of the plaintiffs Krishnaswamy to meet her domestic needs through a GPA, sale agreement and affidavit and since the date of the said transfer the plaintiffs' father came into possession of the schedule property and enjoyed the same as absolute owner and by virtue of the said transfer the plaintiffs renovated the earlier residential house existing on the schedule site and as such since past 19 years they are in lawful possession and enjoyment of the schedule property. They have further stated that in the month of August 2010 their father sold the schedule property in two portions in favour of the plaintiff Nos.1 & 2 through registered sale deed dated 27.08.2010 thereby plaintiff No.1 became the owner of northern portion and the plaintiff No.2 became owner of the southern portion and since then they are in peaceful possession and enjoyment of the schedule property to the extent of their respective portions.
11. However it is the allegation of the plaintiffs that the defendant who is a total stranger to the schedule property and also to the plaintiffs, by creating fraudulent documents, has been interfering with their possession over the schedule property by illegally putting up construction by encroaching upon the schedule property. They have alleged that on 15.08.2010 the defendant by claiming himself to be the owner of adjoining site No.303 tried to trespass over the plaint schedule property which is situated near the said property bearing site No.303 claimed by the defendant. As stated supra, during the pendency of the proceeding they got amended the plaint and incorporated additional pleadings to the effect that during pendency of the proceeding the defendant illegally put up the offending construction by encroaching on 'A' schedule property to the extent as detailed in schedule 'B' of the 11 O.S.No.6456/2010 plaint. This claim of the plaintiffs has been categorically refuted by the defendant who has disputed the very identity and measurement of the plaint schedule property. He has questioned the alleged title and possession of the plaintiffs over 'A' schedule property. On the contrary he has justified his act of putting up construction over his site by contending that he has not encroached upon any portion of the adjoining sites, much less the plaint schedule property as alleged by the plaintiffs.
12. It is the counter allegation of the defendant that since he did not heed to the request of the plaintiffs' father of selling his site No.303 to him, out of the vengeance the present suit has been filed. According to the contention of the defendant, the alleged Hakkupatra granted in the name of Rukminiyamma shows the measurement of the schedule property as 30x45 feets whereas the plaint schedule shows its measurement as 45x30 feets and as such there is serious doubt about the actual measurement of the plaint schedule property. In view of this specific denial by the defendant with regard to the very extent of the plaint schedule property and its ownership by the plaintiffs and in view of the subsequent amendment sought for by the plaintiffs by way of mandatory injunction, heavy burden is cast on them to prove their lawful title and possession over the 'B' schedule property which is according to them, the portion of 'A' schedule property allegedly encroached by the defendant.
13. As stated supra, the plaintiff No.2 has deposed before the Court as P.W.1 and he has relied on as many as 43 documents. As regards Ex.P1. & P.2, they are the original sale deeds executed in the names of plaintiff Nos.1 & 2 respectively by their father as the GPA holder of the original owner Smt.Rukminiyamma with respect to the suit schedule property.
12 O.S.No.6456/2010Ex.P.3 is the original Hakkupatra standing in the name of the said vendor Rukminiyamma and Ex.P.4 is the property register extract and Ex.P.5 & P.6 are the tax demand register extracts standing in her name. To show that she had put up construction of building over the schedule property by obtaining licence, P.W.1 has produced Ex.P.7- licence issued by the concerned panchayath authorities. Ex.P.8 is the plan. As regards Ex.P.9 and 10, they are the original GPA and affidavit executed by the said Rukminiyamma in favour of the father of the plaintiffs thereby transferring the schedule property in his name.
14. P.W.1 has also produced the ration card of their family at Ex.P.11 and the election ID cards of the plaintiff No.1 and himself at Ex.P.12 and the various tax paid receipts standing in the name of the original owner Rukminiyamma which are marked from Ex.P.13 to P.19 to prove their possession over the schedule property. The subsequent tax paid receipts standing in his name are also produced from Ex.P.20 to P.22. To show that he had obtained the water connection, telephone connection to the schedule property, he has produced the receipts at Ex.P.23 to P.26 respectively. As regards Ex.P.27, it is an endorsement issued by the Tahasildar in the name of plaintiff No.1 calling upon her to furnish some documents with respect to site No.303 which is claimed by the present defendant. Ex.P.28 is the copy of complaint lodged by plaintiff No.1 before the Police.
15. The photographs pertaining to schedule property are produced from Ex.P.29 to P.37. P.W.1 has also produced the agreement of sale dated 18.02.1991 executed by Rukminiyamma in favour of his father with respect to suit property. As regards Ex.P.39, it is the copy of Hakkupatra standing in the name of D.W.1 with respect to site No.301. Ex.P.40 to P.42 are the 13 O.S.No.6456/2010 encumbrance certificates pertaining to site No.301. As regards Ex.P.43, it is the certified copy of the gift deed under which the present defendant is shown to have gifted away the house property standing in the site No.301 in favour of his wife Smt.Renuka.
16. As against the oral and documentary evidence placed before the Court by P.W.1, the defendant has also deposed before the Court as D.W.1 and he has also relied on as many as 10 documents of which Ex.D.1 & D.2 are the photographs pertaining to his property. Ex.D.3 & D.4 are the khatha certificate and khatha extract respectively standing in his name with respect to site No.303. He has also produced the copy of original gift deed dated 12.09.2007 under which site No.301 is shown to have been gifted by one Smt.Bhagyamma in his favour. Further Ex.D.6 & 7 are the certified copies of judgment and decree respectively passed in O.S.No.9928/1998 which was filed by the said Bhagyamma against one Smt.Lakshmamma and Puttaraju with respect to site No.303. As regards Ex.D.8 & D.9, they are the khatha certificate and khatha extract respectively pertaining to site No.305 & 306 standing in the names of one Kavitha M and Devika, M respectively and Ex.D.10 is one more khatha extract pertaining to site No.299 standing in the name of one K. Yogesh. In the backdrop of this oral and documentary evidence placed before the Court by both the parties now it is to be seen whether P.W.1 could prove his absolute title and possession over the suit schedule property as on the date of filing of the suit.
17. As already discussed supra, though initially PW1 had filed the present suit for bare injunction, but during the pendency of the proceeding he claimed additional relief of mandatory 14 O.S.No.6456/2010 injunction against the defendant alleging that he has put up the offending construction over his property by encroaching upon the plaint 'A' schedule property belonging to them as detailed in schedule 'B' of the plaint and therefore this Court has to incidentally go into the issue regarding the lawful title and possession of the plaintiffs over the suit schedule property since the same has been seriously disputed by the defendant.
18. The learned counsel for plaintiffs vehemently argued that Ex.P.1 & 2 being the title deeds of both the plaintiffs, they would prima-facie establish their title over the suit schedule property and the same has to be accepted since there is no counter claim put forth by D.W.1 claiming his right over the plaint schedule property. He has also drawn the attention of this Court to para-2 of the written statement wherein according to the counsel, there is admission by D.W.1 with regard to the plaintiffs' property which is suit 'A' schedule of the plaint. He has also argued by referring to the oral testimony of D.W.1 and urged that it is not in consonance with his pleadings.
19. Thus, according to the plaintiffs initially their father had become the absolute owner in possession of the suit 'A' schedule property by virtue of Ex.P.9, P.10 and P.38-GPA, affidavit and sale agreement respectively executed by the original owner Rukminiyamma thereby transferring the 'A' schedule property absolutely in his name in the year 1991 itself and since then he was holding the schedule 'A' property as absolute owner and after his death, the plaintiffs being his legal heirs, have inherited the said property and as such by virtue of the subsequent execution of Ex.P.1 & P.2 sale deeds by their father in their names, the plaintiff No.1 became the owner of northern portion of 'A' schedule property whereas plaintiff No.2 i.e., P.W.1 15 O.S.No.6456/2010 became the absolute owner of the southern portion of 'A' schedule property.
20. Per contra D.W.1 has not specifically disputed the title of the plaintiffs over 'A' schedule property, but it is material to note that he has no claim over this property since it is his definite case that he is the owner in possession of site No.303 measuring 30 X 40 fts. Thus, even according to his defence the suit schedule 'A' site does not belong to him. However, he has contended in his written statement that originally his brother late Mohan Kumar was granted this site No.303 by the government who constructed a 2.16 square residential house on the said site and obtained the basis amenities and as he died as bachelor and issueless and intestate, the said property devolved upon their mother Bhagyamma who in turn, gifted away this property in favour of DW1 under Ex.D5 and since then he has been enjoying this site No.303 as absolute owner.
21. It is equally relevant to note that even the plaintiffs are not claiming any title or possession over site No.303 claimed by DW1 since their claim is only on the schedule A site No.304. However, it is their allegation that this site No.303 was never belonging to the said Mohankumar nor to their mother Bhagyamma, but that this property was the absolute owner of Gowramma, but that the defendant and his mother and brother fraudulently created documents in their names with respect to this site. However, it is relevant to note that though these allegations are made by them with respect to site No.303, but they have also not put forth any rival claim over this property. Moreover, even if it is accepted that DW1 and his family members fraudulently created documents in their names, but it was for the said Gowramma who ought to have challenged the said documents.
16 O.S.No.6456/2010However, till this date no such steps were taken by her nor the plaintiffs have made any efforts to examine her in this regard. Therefore, the claim of the plaintiffs that site No.303 does not belong to DW1, cannot be sustained so long as they have no claim over this property. On the contrary, the burden is on them to prove their lawful title and possession over suit A schedule property.
22. However, DW1 has specifically urged that site No.303 which was originally owned by his brother Mohan Kumar has been subsequently acquired by him from his mother who has executed gift deed in his favour with respect to this property as per Ex.D.5. It is relevant to note that in his chief-examination filed by way of his affidavit there is absolutely no whisper with regard to this site No.303 having been allotted to his brother Mohan Kumar at any point of time and later on it was inherited by his mother Smt.Bhagyamma who in turn, gifted it in his favour under Ex.D.5. On the contrary if we peruse the entire chief-examination of D.W.1, except disputing the title and possession of the plaintiff over the schedule property site No.304 and about the dispute regarding the extent of the schedule property, there are no other statements made by as to how his brother Mohan Kumar acquired site No.303 and how it was later on devolved upon his mother Bhagyamma and she transferred it in his favour under Ex.D.5.
23. What could be gathered from the defene of DW1 is that his chief-examination is not in consonance with his pleadings as those grounds of defence raised in his pleadings are not stated in his oral testimony. However as already discussed supra, neither P.W.1 is claiming any right over site No.303 or 301 which is claimed by D.W1 nor D.W.1 is claiming any right over the suit 17 O.S.No.6456/2010 schedule site No.304. Under such circumstances as rightly pointed out by the plaintiff, now D.W.1 cannot question her title and lawful possession over suit site No.304. Even otherwise in the cross-examination of DW1 he has not specifically denied the suggestion that schedule site No.304 was originally allotted to one Rukminiyamma and that she transferred the same in the name of the plaintiffs' father Krishnaswamy through the SPA, sale agreement and affidavit and that the Government had initially issued Hakkupatra in the name of Rukminiyamma in the year 1974 although he has pleaded mere ignorance about these aspects. It would be relevant to refer these material statements of D.W.1 which are found in his cross-examination dated 10.06.2022 in para-1 to 3. In para-1 he has stated as under:-
"I do not know whether the suit site was allotted to Rukminamma. I do not know whether hakkupatra was issued in her name.
Ex.P3 which is now shown to me might have been issued to Rukminamma. I did not make any efforts to verify as to whom the suit property was allotted to Rukminamma in the year 1974".
24. Even in his further cross-examination in the same paragraph stated above D.W.1 has admitted that he has not questioned Ex.P.3 document which was issued in favour of Rukminamma. Further in para-2 of his cross-examination again he has not denied the fact that Rukminamma transferred the schedule property in favour of the plaintiffs' father Krishnaswamy which reads as under:-
"I came to know that from Rukminamma the schedule property was transferred to Krishnaswamy through GPA, 18 O.S.No.6456/2010 affidavit and sale agreement after appearing in this suit. It is not true to suggest that since 1974 Rukminamma was in possession of the schedule property. It may be true that in the year 1977 she had obtained permission from Panchayath authority to put up construction on the schedule property".
25. The next material statement of D.W.1 which is found in para-3 of his cross-examination run thus:-
"I have produced document pertaining to site no.303. This site belongs to my deceased brother V.N.Mohan Kumar. The government had issued Hakku Patra to him.
I have produced the said government before the court. It is not true to suggest that site no.303 was alloted to Gowramma W/o Shankarappa. It is true to suggest that the Tahasildar has issued endorsement as per Ex.P27 stating that site no.303 was alloted to Gowramma W/o Shankarappa".
26. The above statement of D.W.1 found in para-3 of his cross-examination would indicate that there was no verification either by D.W.1 or his mother and brother with regard to credibility of the allotment of site No.303 in the name of Gowramma. Moreover as already discussed above, though it has been specifically urged by D.W.1 that site No.303 initially belonged to his brother Mohan Kumar, but not a single scrap of paper is finding place in the record to substantiate his contention. Ten documents which are produced by D.W.1 from Ex.D.1 to D.10 are though pertaining to said site No.303, but it is material to 19 O.S.No.6456/2010 note that these documents are standing in his name and not in the name of his brother Mohan Kumar to show as to whether initially his brother Mohan Kumar held this site No.303 as owner.
27. DW1 has also produced the copy of judgment and decree passed in O.S.No.9928/1998 at Ex.D.6 & 7 respectively which was the suit filed by his mother Bhagyamma against one Smt.Lakshmamma and B.S. Puttaraju with respect to site No.303 for permanent injunction and had obtained decree in that suit against them. Again this judgment and decree would not bind the present plaintiffs in any manner for the simple reason firstly, that this suit was filed not with respect to the present suit property bearing site No.304 nor the present plaintiffs were parties to the said suit. However it is significant to note that the very boundaries shown to this site No.303 in this suit would clearly show that towards east of the said site No.303, the present suit site No.304 is situated. Therefore it cannot be said that by virtue of this decree being obtained by his mother, he could assert his right over the present suit schedule site No.304.
28. Even in his cross-examination in para-4 on page-9 D.W.1 has clearly admitted that defendant No.2 Puttaraju in O.S.No.9928/1998 was not having any property adjacent to the schedule property or to site No.303. Therefore what could be gathered from the entire defence put forth by D.W.1 in this case is that although he has claimed his title and possession over site No.301 and has also asserted his rights over site No.303, but nowhere he has specifically asserted that along with these two sites, he is also having any right over the present suit site No.304 claimed by the plaintiffs. The very fact that till this date the possession and enjoyment of the suit schedule property by the plaintiffs and earlier by their father having remained unchallenged 20 O.S.No.6456/2010 by anybody much less by the defendant, itself clearly establishes the fact that at an undisputed point of time the plaintiffs have acquired/inherited the suit schedule site No.304 as claimed by them. Therefore both these issues are accordingly answered in their favour in the affirmative.
29. Additional. issue Nos.1, 2 & 5:- Since all these issues are interconnected, they are tried together to avoid repetition of facts. It is the allegation of the plaintiffs that the defendant without having any right, title or interest over the suit 'A' schedule property have put up illegal construction over portion of the same as detailed in schedule 'B' of the plaint measuring east-west 7.8 feets and north-south 30 feets. Thus according to the plaintiffs' claim they are the absolute owners of this encroached portion as detailed in schedule 'B' of the plaint which is liable to be handed over to them by D.W.1. This allegation of the plaintiffs has been categorically denied by D.W.1 who has disputed the very description, extent and measurement of the property in possession of the plaintiffs.
30. As already discussed supra, since D.W.1 has not claimed any right over the suite site No.304 claimed by the plaintiffs and as it is now proved to be entirely different from site No.301 or 303 claimed by D.W.1, he cannot deny the plaintiffs' title and possession over the schedule 'A' property measuring east-west 45 feets and north-south 30 feets. However despite the plaintiffs establishing their lawful possession over 'A' schedule property, the burden is still on them to prove as to whether the defendant has encroached upon the schedule property to an extent as claimed in schedule 'B' of the plaint. In order to seek the relief of possession of the alleged encroached portion on the allegation of encroachment, at the first instance, the plaintiffs 21 O.S.No.6456/2010 have to prove before the Court as to whether there has been any such encroachment by the defendant as alleged by them to the extent claimed by them.
31. According to the allegation of the plaintiffs though at the time of filing of the suit, the defendants had merely attempted to put up the offending construction over the schedule property by encroaching thereupon, but during the pendency of the proceeding illegally D.W.1 put up the offending construction by encroaching to the said extent and therefore the said encroached portion is liable to be handed over to them. In his evidence P.W.1 has reiterated this aspect. It is relevant to note that in his cross- examination dated 22.07.2021, P.W.1 has specifically stated that he had got measured the encroached area, but no documents are produced in that regard. This material piece of his admission in para-11 runs thus:-
"Since I have purchased the constructed house I have got measured the encroached area. I have not produced any documents to show the said measurement of encroached area. It is not true to suggest that since there is no such encroachment I have no documents to show the same. I have no impediment if the court orders for appointment of court commissioner to measure the encroachment".
32. The above statement of P.W.1 would cast suspicion about his allegation that there has been any such encroachment by D.W.1 to the extent as claimed in the plaint, because unless and until the disputed properties are got measured, one cannot conclusively hold whether there has been such encroachment or not. Even after stating that he has no impediment to get the said encroachment measured through a Court Commissioner, no 22 O.S.No.6456/2010 effort has been made by P.W1 in this regard to seek for appointment of a Court Commissioner or any Surveyor. The evidence of P.W1 was recorded in the month of July 2021 and till the date no attempt has been made by him to file any application for appointment of any Court Commissioner much less any Surveyor in order to prove the alleged encroachment committed by the defendant in the schedule property. Under such circumstances it is unsafe to readily infer as to whether the defendant had in fact encroached upon the schedule property to the extent as alleged by the plaintiffs.
33. It is further pertinent to note that though P.W.1 has alleged that site No.303 belonged to one Gowramma and not to the defendant and that the defendant had encroached upon his property by creating documents, but he had admitted that he had not approached the said Gowramma to enquire about the said encroachment. No effort is also made by the plaintiffs to summon and examine the in this regard. It is further to be noted that no effort is also made by the plaintiffs to seek any police assistance complaining about the alleged encroachment. On the contrary he has stated that he has no impediment if the defendant resides in his own property as per his records without obstructing his property.
34. All the inconsistent statements of P.W1 as narrated supra, would indicate that he has not made out a clear case before this Court so as to consider his allegation of encroachment committed on the schedule property by the defendant. Therefore it cannot be accepted that the plaintiffs could establish their ownership over the alleged encroached portion as detailed in schedule 'B' of the plaint so as to seek for the relief of mandatory injunction. It is relevant to note that there is serious dispute by 23 O.S.No.6456/2010 D.W.1 with regard to the extent of the property owned by the plaintiffs as detailed in schedule 'A' of the plaint and further the alleged extent of encroachment by D.W.1 of their property. Under such circumstances, at the first instance the duty is cast on the plaintiffs to establish the exact extent of the property in their actual possession as on the date of filing of the suit and as to how the portion of the said property has been encroached upon by D.W.1 as claimed in schedule 'B' of the plaint. Therefore in the absence of any cogent evidence in this regard it cannot be said that they could make out a convincing case so as to seek either the relief of mandatory injunction or to establish the ownership of the extent as detailed in schedule 'B' of the plaint.
35. It is further pertinent to note that even P.W.1 in his cross-examination in para-7 has not denied the suggestion that the adjacent sites are of the same measurement as 30x40 feets. However he has pleaded ignorance in that regard. It is further relevant to note that in his further cross-examination he has stated that the building seen in Ex.P.29 to P.31 photographs was constructed by Rukminamma, but even to substantiate this aspect no supporting materials are produced before the Court. No records are also placed before the Court to show as to what was the extent of the property in which the said building in 'A' schedule property was put up by the said Rukminamma so as to ascertain the exact measurement of the said property. It is further to be noted that the entire 'A' schedule property does not belong to P.W.1 even as per his own case, because portion of the same belongs to the plaintiff No.1 who is his sister and it is also relevant to note that in the sale deeds of plaintiff Nos.1 & 2 which are produced at Ex.P.1 and P.2 respectively in the schedule of the property shown to have been transferred by their father in their names, it is shown that the property sold to both of them in 24 O.S.No.6456/2010 schedule 'A' of the plaint in two parts consists of the total extent as 675 sq.fts consisting of an AC sheet residential house of 1 ½ squares to each of the plaintiffs. Therefore if we accept this description of the schedule property which was sold in two portions to both these plaintiffs it is clear that what was transferred to them by their father under these sale deeds was an already constructed house which clearly indicates that even prior to the execution of these sale deeds in favour of the plaintiffs there was only a constructed house existing on the schedule property.
36. However the allegation of the plaintiffs is that on 15.08.2010 the defendant started encroaching upon their property by attempting to put up the offending construction. When as per their own sale deeds it is apparently shown that the property transferred to them was a constructed house on the schedule property then a reasonable suspicion certainly arises as to how the defendant could have encroached upon the said construction portion by attempting to put up the offending construction and how during the pendency of the proceeding he put up the said illegal construction on the schedule property as detailed in schedule 'B' of the plaint. It is also not the allegation of the plaintiffs that the defendant had demolished any portion of their house property and put up the offending construction. Ex.P.1 and P.2- sale deeds also nowhere disclose that apart from said constructed house property there was also vacant space left in the 'A' schedule property which was also retained by their father earlier or by the plaintiffs after execution of Ex.P.1 & P.2. Therefore all these circumstances are sufficient to falsify the allegation of the plaintiffs that D.W.1 had encroached upon 'A' schedule property to an extent as detailed in schedule 'B' of the plaint and put up the alleged illegal construction.
25 O.S.No.6456/201037. Even it is not the case of the plaintiffs that at the time of execution of the sale agreement by Rukminamma in favour of their father, there was an old house along with vacant space in schedule 'A' of the plaint. On the contrary if we peruse Ex.P.9 affidavit it describes the property transferred to their father by Rukminamma as a site consisting of RCC roof house with all amenities, compound and gate which is not the case made out by the plaintiffs nor their plaint schedule discloses this description. Nowhere in the entire pleadings or in the schedule of the plaint we find that apart from a dwelling house there was also a compound wall with gate to 'A' schedule property. This fact is also categorically admitted by P.W.1 in his cross-examination dated 14.03.2019 in para-3 as under:-
"It is true to suggest that the nature of the property mentioned in Ex.P.1 & P.2 is quite contrary to the nature of the property mentioned in Ex.P.9".
38. However the learned counsel for the plaintiffs has sought to rely on a couple of decisions. The first decision cited by him is reported in Chennaru Naghbhusan Rao v/s M. Rama Rao and others in AIR 1992 Orissa 76 wherein it is held that where in a suit for mandatory injunction for demolition of unauthorized construction by the defendant, he raises such construction during the subsistence of interim injunctive order ignoring the order of the Court, such construction is liable to be demolished. With due regards to the principles laid down in this decision, it cannot be said that the same could be applied to the present case for the simple reason that as already discussed supra, at the first instance the plaintiffs herein have utterly failed to prove before the Court as to the alleged extent of the property 26 O.S.No.6456/2010 in their possession as on the date of the suit and the extent of the alleged encroachment by the defendant. On the other hand from their own documents of title we do not find any additional vacant space in 'A' schedule property since they have acquired the property under these documents of title which was a constructed house and except the said house there is no reference about any vacant land retained by their father or by the earlier vendor. Therefore unless and until that initial burden is discharged by the plaintiffs, they cannot rely on the ratio laid down in this decision.
39. The second decision cited by the plaintiffs' counsel is reported in T. Prasad and others v/s P.D. Punnoose and another in AIR 1995 Kerala 157 wherein the Court while dealing with a suit for mandatory injunction observed that where there was interim order restraining the defendants from trespassing upon the schedule property or from destroying its boundaries and where the evidence discloses that such trespass continued and the boundary was destroyed with scant regard to the plaintiff's proprietary right even after institution of the suit, the grant of mandatory injunction was valid. The same principles have been reiterated in the third decision cited by the plaintiffs' counsel which is reported in Venkataraju and others v/s Venkataraju in 2017(5) KCCR SN 331.
40. Again the principles laid down in the above cited two decisions would not help the plaintiffs' case in any manner, because as already held above the plaintiffs have failed to prove the alleged extent of encroachment committed by the defendant as detailed in schedule 'B' of the plaint by getting surveyed the disputed properties as well as the said encroachment through any competent agencies. Unless and until such material aspect is ascertained in accordance with law, it cannot be held that the 27 O.S.No.6456/2010 burden of proving such encroachment stands discharged by the plaintiffs. Therefore the principles laid down in none of these decisions could be extended to the facts on hand.
41. It is a well settled position of law that in order to seek for an injunctive relief on the allegation of encroachment, the party has to necessarily prove at the first instance as to what was the exact extent of the property in his possession before such encroachment is made and what is the extent of encroachment by the opponent. In this regard it would be relevant to refer a decision of the Hon'ble High Court reported in Sri. Lakshmivenkataramana Temple v/s Smt.Usha @ Rukmani Bai in 1990(3) KLJ (Supp.) 427 wherein this position of law has been well settled as under:-
Specific Relief Act Sec.39--Encroachment-- Mandatory injunction--grant of--Court recording a finding as to encroachment but there being no proof of actual extent of encroachment not giving the relief as prayed for--Finding recorded
--held cannot be said to be contrary to the reliefs granted.
HELD: All that the court did was to refuse to give the plaintiff the mandatory injunction or even the injunction ordinarily prayed for in regard to the extent, as the extent of encroachment was not established, because the extent was not determined, the plaintiff was not entitled to the relief which consequently would have followed or her having established the title and encroachment. If understood in that manner, the finding recorded is not contrary to the reliefs granted by the lower 28 O.S.No.6456/2010 appellate court setting aside the judgment of trial court.
42. The principles laid down in the above cited decision could aptly be extended to the present case, since even in the instant case as held above the entire claim of the plaintiffs is based on the allegation of encroachment by D.W.1 in their property to the extent as mentioned in schedule 'B' of the plaint. Under such circumstances unless and until they could place before the Court any concrete materials, particularly any sketch or the survey report to ascertain the exact extent of the property in their possession excluding the constructed portion and the extent of the alleged encroachment by D.W.1, it cannot be said they can maintain their claim of mandatory injunction. Therefore all these issues need to be answered accordingly against the plaintiffs in the negative.
43. Addl. Issue No.6:- The defendant has also contended that the suit of the plaintiffs is not maintainable since no proper court fee has been paid on the suit reliefs. It is relevant to note that except raising this bare contention in the pleading, it has not been substantiated as to how the court fee paid is insufficient. Even otherwise it is relevant to note that in para-16 of the plaint the plaintiffs have stated that they have paid proper court fee as per the valuation report appended to the plaint. It is relevant to note that initially the suit was one for permanent injunction and subsequently by way of amendment they got included additional prayer for mandatory injunction. However on 27.11.2015 the plaintiffs furnished fresh valuation slip by paying additional court fee which is evident from the records. Therefore the objection raised by the defendant for non-payment of sufficient court fee by the plaintiffs cannot be sustained.
29 O.S.No.6456/2010Consequently this issue is answered against the defendant in negative.
44. Issue Nos.2 & 3:- Since both these issues are interconnected, they are tried together to avoid repetition of facts. It is the allegation of the plaintiffs that the defendant has been interfering with their possession over the schedule property. At the first instance it was the mere allegation of the plaintiffs that the defendant attempted to trespass over the schedule property by attempting to put up the offending construction and therefore they had initially sought for the relief of permanent injunction in that regard. However in view of the subsequent amendment additional prayer came to be incorporated in the plaint and additional pleadings were also inserted alleging that during pendency of the proceeding the defendant put up the offending construction over the schedule 'A' property to the extent as mentioned in schedule 'B' of the plaint. In view of the findings rendered on all the preceding issues it is now proved that the case made out by the plaintiffs is not based on any acceptable materials either oral or documentary. As the main allegation was with regard to the alleged encroachment which could not be proved by them, they cannot be held entitled to seek the further consequential relief of permanent injunction. Hence in the given facts and circumstances of the case, it cannot be said that it is a fit case where this Court can exercise its discretion in the grant of permanent injunction as sought for. Consequently even these two issues need to be answered against the plaintiffs in the negative.
45. Issue Nos.4 & addnl. Issue No.6:- Since both these issues are interconnected, they are tried together to avoid repetition of facts. In the light of the findings given on the above issues and the facts and circumstances of the case, the parties to 30 O.S.No.6456/2010 this suit are directed to bear their own cost of litigation. In the result the Court hereby proceeds to pass the following:-
ORDER The suit filed by the plaintiffs against the defendant for the relief of permanent and mandatory injunctions with respect to suit schedule properties is hereby dismissed.
Parties to bear their own cost.
Draw decree accordingly.
The interim order of injunction granted under I.A.No.I hereby stands vacated.
(Part of the judgment typed by me directly on the laptop and continued further dictation to the Judgment Writer, who transcribed the same on Computer, carried out corrections, print out taken and then pronounced in the Open Court on this the 4th day of January, 2023) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs:
PW.1 : Lakshman List of documents exhibited for plaintiffs:
Ex.P1 & 2 : Two registered sale deeds dt.27.8.2010 Ex.P3 : Original hakkupatra Ex.P4 to 6 : Tax paid extracts Ex.P7 : Licence Ex.P8 : Sketch Ex.P9 : Possession certificate dtd:18.02.1991 Ex.P10: Affidavit of Rukminamma dtd:18.2.1991 31 O.S.No.6456/2010 Ex.P11 : Ration card of Krishnaswamy Ex.P12,13: Election ID cards of Bhuvaneshwari & Lakshman Ex.P14 to 19: Tax paid receipts Ex.P20 to 22: Tax paid receipts issued by BBMP Ex.P23 : Deposit receipt Ex.P24 to 26: Telephone bills Ex.P27 : Endorsement issued by Tahasildar Ex.P28 : Copy of police complaint Ex.P29 to 37: Negatives of the photos Ex.P38 : Sale agreement dtd:18.02.1991 Ex.P39 : C/c of hakkupatra Ex.P40 to 42: Encumbrance certificates Ex.P43 : C/c of gift deed List of witnesses examined exhibited for defendant:
D.W1 : Kumaraswamy
List of documents exhibited for defendant:
Ex.D1 & 2: Photographs
(marked through P.W.1)
Ex.D3 : Khatha certificate
Ex.D4 : Khatha extract
Ex.D5 : C/c of gift deed dtd:12.09.2007
Ex.D6 & 7: C/c of judgment and decree in OS 9928/2019 Ex.D7 : Office copy of legal notice dtd:15.11.2011 Ex.D8 to 10: Three khatha extracts X Addl. City Civil & Sessions Judge, Bangalore.