Bangalore District Court
Mrs. Renuka Vijayakumar W/O Vijaykumar vs Sri. Narayanappa S/O Late ... on 22 September, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.17465/2004
Dated this the 22nd day of September 2021
Plaintiff 1. Mrs. Renuka Vijayakumar W/o Vijaykumar,
Aged about 41 years, R/at No.12/53 (FF),
Udani Layout, Cambridge Road,
Ulsoor, Bangalore-560008.
2. Mrs. Shylaja Viswanatha W/o Vishwanatha,
Aged about 19 years, No.12/53 (GF)
Udani Layout, Cambridge Road,
Ulsoor, Bangalore-560008.
3. Mrs. V.M. Raveendran S/o K.K. Nair,
Aged about 46 years, R/o No.40,
Liyods Road, Cooke Town,
Bangalore-560005.
4. Mr. V.M. Hareendran S/o K.K. Nair,
Aged about 46 years, R/o No. 40,
Liyods Road, Cooke Town,
Bangalore-560 005.
(Represented by his Special Power of Attorney
Holder) Sri. V.M. Raveendran (No. 3 above)
(Rep by Sri.A.R Advocate)
V/S
Defendants 1. Sri. Narayanappa S/o Late Venkataswamappa,
2
Judgment O.S.No.17465/2004
@ Chikka Abbaiah, Aged about 50 years,
2. Sri. Nagaraj S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 45 years,
2(a) Since deceased represented by his LR.
Smt. Shashikala W/o Late C. Nagarajappa,
Aged about 47 years,
Residing at Horamavu Village & Post,
Near Mariyamma Temple Street,
K.R Puram Hobli, Bangalore East Taluk,
Bangalore-560 043.
3. Sri. Jayaram S/o Late Venkataswamapppa
@ Chikka Abbaiah, Aged about 40 years,
1 to 3 residing at: Horamavu Village,
K.R Puram Hobli, Bangalore-560 043.
4. Sri. Y.N. Konda Reddy S/o Narayana Reddy,
Aged about 42 years, R/o No.83,
Yerandahalli, Hennagara Post,
Anekal Taluk, Bangalore-562106.
(Rep by defs No.1 to 3 Sri.PSN, Advocate,
def No.4-Exparte, def No.5 rep by Sri.MRS Advocate)
Date of Institution of the suit 18/12/2004
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.)
Permanent Injunction
Date of the commencement of recording of the Evidence. 13/11/2006
Date on which the Judgment was pronounced. 22/09/2021
Year/s Month/s Day/s
Total duration 16 09 03
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
3
Judgment O.S.No.17465/2004
:JUDGMENT:
The plaintiffs filed suit against the defendants for permanent injunction.
2. The brief facts of plaint averments is as under:
The plaintiffs submits that defendants No.1 to 3 formed layout of site in Northern portion of their land in Sy.No.81/2 to an extent of 1 acre 24 gutnas in Horamavu Village K.R Puram Hobli, Bangalore South Taluk, (Presently Bangalore East Taluk) during the year 1991. The defendants No.1 to 3 obtained House List Numbers and khata from local Horamavu Panchayat. The defendants No.1 to 3 formed total number of 47 sites in the said layout as per the layout plan furnished to the plaintiffs and other site purchasers.
3. The plaintiff No.1 purchased suit schedule 'A' property site No.29 mentioned below under registered sale deed on 29/12/1991 and it was assigned House list No.122/1 in the 4 Judgment O.S.No.17465/2004 Village Panchayat Records, Katha Extract in form No.10 in the name of plaintiff No.1.
:SUIT SCHEDULE 'A' PROPERTY:
All that piece and parcel of residential site bearing No.29 in portion of house list katha No.122/1 of Horamavu Village K.R Puram Hobli, Bangalore South Taluk, measuring East to West 40 feet, North to South 40 feet total area 1200 sq.ft bounded by East: Site No.34, West: 25 ft. road, North: House No.28, South:
House No.30.
The plaintiff No.2 purchased suit schedule 'B' property site No.28 mentioned below under registered sale deed from defendants No.1 to 3 on 18/12/1991 and it was assigned House list No.122/1 in the Village Panchayat Records, Katha Extract in form No.10 in the name of plaintiff No.2.
:SUIT SCHEDULE "B" PROPERTY:5
Judgment O.S.No.17465/2004 All that piece and parcel of residential site bearing No.28 in a portion of house list katha No.135/4, of Horamavu Village K.R Puram Hobli, Bangalore South Taluk, measuring East to West 40 feet, North to South 30 feet total area 1200 SFT, and bounded on the East by site No.35, West by 25 ft. road, North by House No.27, South by House No.29.
The plaintiff No.3 purchased suit schedule 'C' property site No.27 mentioned below under registered sale deed from defendants No.1 to 3 on 13/01/1992 and it was assigned House list No.122/1 in the Village Panchayat Records, Katha Extract in form No.10 in the name of plaintiff No.3.
:SUIT SCHEDULE "C" PROPERTY:
All that piece and parcel of residential site bearing No.27 in a portion of house list katha No.122/1, of Horamavu Village K.R Puram Hobli, Bangalore South Taluk, measuring East to West 40 feet, North to South 6 Judgment O.S.No.17465/2004 30 feet total area 1200 Sft , and bounded on the East by site No.35, West by 25 ft. road, North by House No.26, South by House No.28.
The plaintiff No.4 purchased suit schedule 'D' property site No.26 mentioned below under registered sale deed from defendasnts No.1 to 3 on 13/01/1992 and it was assigned House list No.122/1 in the Village Panchayat Records, Katha Extract in form No.10 in the name of the plaintiff No.4.
:SUIT SCHEDULE "D" PROPERTY:
All that piece and parcel of residential site bearing No.26 in a portion of house list katha No.122/2, of Horamavu Village K.R Puram Hobli, Bangalore South Taluk, measuring East to West 40 feet, North to South 30 feet total area 1200 Sft, and bounded on the East:
site No.37, West:25 ft. road, North : House No.25, South :House No.27.7
Judgment O.S.No.17465/2004
3. The plaintiffs submit that they and other purchasers are in peaceful possession and enjoyment of the suit schedule properties ever since they purchased the sites from defendants No.1 to 3 thirteen years ago. The defendants No.1 to 3 had formed layout in northern portion of their land in Sy.No.81/2 to an extent of 1 acres 24 Guntas and has sold all the 47 sites formed in layout to various purchasers including them. Many purchasers have already constructed their house in their respective site in the layout purchased from defendants No.1 to 3 after obtaining building license from the local Horamavu Panchayat.
4. The plaintiffs submit that such being the state of affairs on 21/10/2004 the defendant No.4 appeared in the layout on claiming that he has purchased the land in the year 2004, where the layout was formed thirteen years ago by defendants No.1 to 3 and suit schedule sites sold to the plaintiffs. The defendant No.4 claims that he has purchased the agricultural 8 Judgment O.S.No.17465/2004 land to an extent of 1 acre 7 guntas with 6 guntas Kharab land from defendants No.1 to 3 and their children under registered sale deed on 01/03/2004 and the said defendant claiming under said sale deed is threatening to dispossess the plaintiffs from their suit properties. The defendant No.4 and his gang tried to remove the boundary stones and fencing put up in the sites.
The plaintiff and other site owners resisted the illegal acts of the defendant No.4 and his men. A police complaint was lodged by the sites owners with the Ramamurthy Nagar police station. That after formation of layout to an extent of 1 acre 24 guntas with 47 sites in northern portion of the land in Sy.No.81/2 of Horamavu Village by defendants No.1 to 3 and sold all sites to different purchasers including to him, under different registered sale deed, the defendants No.1 to 3 had no more rights, title or interest in respect of the above said land wherein the layout was formed during the year 1991 to sell to the defendant No.4 under the sale deed dated 01/03/2004. That the alleged sale deed of agricultural land dated 01/03/2004 in 9 Judgment O.S.No.17465/2004 favour of defendant No.4 in respect of very same land where the layout was formed by defendants No.1 to 3 in 1991 does not confer any title to the defendant No.4 and the said sale deed dated 01/03/2004 registered in the office of the Sub- Registrar, K.R Puram, Bangalore is illegal, null and void. The Northern portion of Sy.No.81/2 in Horamavu village, wherein defendants No. 1 to 3 formed layout was not an agricultural land since 1992. The said fraudulent sale deed dated 01/03/2004 claimed by the defendant no.5 is fraudulent one and it is in respect of property which has already been transferred earlier to him and other site owners.
5. The plaintiffs submit that defendant No.4 has filed Caveat Petition against few of site owners in the layout before the Court of the Civil Judge (Jr.Dn) Bangalore which is not the jurisdictional court for the area where suit properties are situated. The description of the property in the schedule to the caveat petition go to show that agricultural land allegedly 10 Judgment O.S.No.17465/2004 purchased under the sale deed dated 01/03/2004 is the same land (para 3 of the Caveat Petition) wherein the defendants No.1 to 3 formed layout of sites including suit schedule properties in 1991. The plaintiffs submit that in northern portion of Sy.No.81/2 of Horamavu Village wherein defendants No.1 to 3 formed layout. They have got legal right to peaceful possession and enjoyment of their suit schedule properties. The defendants No.1 to 3 by creating fraudulent sale deed dated 01/03/2004 in favour of defendant No.4 and with bogus title documents are trying to interfere with peaceful possession and enjoyment of their suit schedule properties of plaintiffs.
6. The plaintiffs further submits that on 21/10/2004 the defendant No.4 and his gangmen came to the suit properties and tried to interfere with suit properties and attempted to remove the boundary stones and fencing to make it appear that it is agricultural land. The defendant No.4 has acquired no 11 Judgment O.S.No.17465/2004 valid title under the sale deed claimed by him to enter upon the suit sites or to interfere with their lawful possession. Hence cause of action for suit arose on 21/10/2004. The plaintiffs prays to pass decree to the suit for permanent injunction restraining the defendants their heirs, successors, agents or any one claiming under them from interfering in any manner with their peaceful possession and enjoyment over the suit schedule properties.
7. The defendants No.1 to 3 have filed written statement. The defendants No.1 to 3 denied entire plaint allegations and also denied ownership of the plaintiffs over the suit schedule property. The defendants No.1 to 3 submit that the suit of plaintiffs for relief of bare injunction without seeking the declaratory is not maintainable either in law or on facts. The suit filed by plaintiff is frivolous, vexatious, mischievous in nature and the plaintiff had suppressed material facts and misrepresented the facts. The defendants No.1 to 3 submit 12 Judgment O.S.No.17465/2004 there is no cause of action to file suit, court fee paid is in sufficient.
8. The defendants No.1 to 3 alleged suit schedule properties are not at all in existence as it is described in schedule of plaint. The defendants No.1 to 3 out of total extent of 3 acre 17 guntas of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk presently Bangalore East Taluk, have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma W/o Dasappa and another extent of 30 guntas of land in favour of defendant No.4/Padmavathi Madareddy and retained 1Acre 7 Guntas of land in said Sy.No.81/2 of Horamavu Village. The defendants No.1 to 3 were title holders in possession and enjoyment of extent of 1 Acre 7 Guntas of land Sy.No.81/2 of Horamavu Village and they have sold the said extent of the land in favour of Y.N. Kondareddy i.e. the defendant No.4 under registered sale deed on 01/03/2004 and rectification deed dated 29/03/2004. That 13 Judgment O.S.No.17465/2004 ever since the date of sale of land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 of Horamavu Village, the defendant No.5 is in possession and enjoyment of said extent of land. The defendants No.1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu Village in favour of Padmavathi Madareddy and have not entered in to any other transaction with Padmavathi except for sale deed referred to above, which has been executed by defendants No.1 to 3. That no sites have been formed in land measuring an extent of 1 Acre 7 Guntas, which has been sold in favour of defendant No.4.
9. The defendants No.1 to 3 denied the plaint para No.2 that plaintiffs are absolute owners in possession and enjoyment of their respective schedule sites. The defendants No.1 to 3 denied allegations of plaint paras No.3 to 13. The defendants No.1 to 3 prays to dismiss the suit with cost.
14
Judgment O.S.No.17465/2004
10. The defendant No.4 has filed his written statement. The defendant No.4 denied entire plaint allegations. The defendant No.4 submits that suit filed by plaintiff for relief of permanent injunction in respect of alleged non existence of suit schedule property is not sustainable either in law of on facts. That without seeking declaratory relief of title and consequential reliefs, the suit filed for bare injunction is not maintainable. The defendant No.4 submits that description of the property, its extent and the boundaries mentioned in the schedule to the plaint are not correct. The plaintiffs making an attempts to lay claim for portion in the land measuring an extent of 1 Acre 7 Guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, (Previously Bangalore South Taluk) under the guise of having purchased site bearing list No.122/2 under the registered sale deed. That there cannot be site bearing house list No.122/2 in agricultural land. The house list No.122/2 indicates that the property is Gramatana property. However the plaintiff is trying to lay claim for portion in the 15 Judgment O.S.No.17465/2004 land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South taluk and presently Bangalore East Taluk. The plaintiff has to establish that there are sites bearing the house list number with its extent & boundaries as mentioned in the sale deed & that said sites are within the Gramatana limits & then only plaintiff can claim right over the suit schedule property.
11. The defendant No.4 alleged that plaintiff is not having title & possession to the property as it is described in the schedule of plaint. The court paid is insufficient. There is no cause of action for the suit and hence plaintiff is not entitle for relief of permanent injunction for want of cause of action. That Narayanappa, Jayaram and Nagraj are title holders and in possession and enjoyment of land measuring an extent of land 3 Acre 17 Guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk and they have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma and 16 Judgment O.S.No.17465/2004 an extent of 30 guntas in favour of Padmavathi Madareddy. They have retained land measuring 1 Acre 07 guntas and they were in possession and enjoyment of said extent 1 Acre 07 guntas of land as absolute owners thereof. The said Narayanappa, Jayaram and Nagaraj have sold said extent of 1 Acre 07 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk in his favour under registered sale deed dated 01/03/2004 and by rectification deed dated 29/03/2004. Ever since from date of purchase 01/03/2004 possession of land has been delivered to him (defendant No.4), he is in possession of said extent of 1 Acre 07 guntas of land in Sy.No.81/2 of Horamavu Village, K.R Puram, Bangalore East Taluk as an absolute owner and khata of property mutated in his name as per M.R No.48/03-04 and entered his name in the pahanies in respect of aforesaid land. Then he approached survey department and said land in Sy.No.81/2 of Horamavu village being surveyed and phoded land measuring an extent of 1-07 guntas has been assigned 17 Judgment O.S.No.17465/2004 with new Sy.No.81/3. The aforesaid extent of 1 Acre 7 guntas in new Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village has not been converted for non-agricultural residential purposes and it remains as an agricultural land. The defendant No.4 denied entire allegations of plaint paras No.2 to 10. The defendant No.4 denied that plaintiffs No.1 purchased suit schedule 'A' property under registered sale deed on 29/12/1991. The defendant No.4 denied that plaintiffs No.2 purchased suit schedule 'B' property under registered sale deed on 18/12/1991.The defendant No.4 denied that plaintiffs No.3 purchased suit schedule 'C' property under registered sale deed on 13/01/1992. The defendant No.4 denied that the plaintiffs No.4 purchased suit schedule 'D' property under registered sale deed on 13/01/1992. The defendant No.4 denied entire allegations of plaint para No.2 to 10.
12. The defendant No.4 further submits that the document upon which the plaintiff is relying in support of his title and 18 Judgment O.S.No.17465/2004 possession the schedule property do not in any manner relate to the land in Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, hence the plaintiff can't claim any right of possession over any portion of the land in Sy.No.81/3 (Old No.81/2) of Horamavu Village, K.R Puram Hobli. The defendant No.4 prays to dismiss the suit of plaintiff with costs.
13. On the basis of above pleadings Issues framed in both suits as under
:ISSUES:
(1) Whether the plaintiff proves his lawful possession and enjoyment over the suit schedule property as on the date of the suit? (2) Whether the plaintiff proves the alleged obstructions?
(3) Whether the plaintiff is entitled to the reliefs claimed?
(4) What order?19
Judgment O.S.No.17465/2004
14. The plaintiff examined as PW.1 and marked ExP1 to ExP29. The defendant No.1 examined as DW.1, defendant No.4 examined as DW.2 and marked ExD1 to ExD35.
15. The plaintiff counsel argued. The defendants No.1 to 3 counsel argued. The defendant No.4 counsel argued and filed written arguments with citations.
16. My findings to above Issues are as under Issue No.1) In Negative Issue No.2) In Negative Issue No.3) In Negative Issue No.4) See final order for following:
:REASONS:
17. Issues No.1 to 3:
The plaintiff No.3 V.M Raveendran S/o K.K. Nair has filed his affidavit in lieu of examination in chief as PW.1 and 20 Judgment O.S.No.17465/2004 deposed evidence that he and other plaintiffs are absolute owners in possession and enjoyment of their respective suit schedule sites. During the year 1991 defendants No.1 to 3 formed layout of sites in northern portion of their land in Sy.No.81/2 to an extent of 1 acre 24 guntas in Horamavu Village, K.R Puram Hobli, Bangalore South Taluk (Presently Bangalore East Taluk) as per layout plan furnished to him and other plaintiffs and they also obtained house list numbers and khatha from local Horamavu Panchayat. The PW.1 further deposed that he had purchased site No.27 as described in schedule-C under registered sale deed dated 13/01/1992, he and other plaintiffs are in peaceful possession and enjoyment of the their schedule properties ever since they have purchased the sites from defendants No.1 to 3 about 13 years ago. He and other plaintiffs have paid property taxes in respect of the schedule sites to local Horamavu Panchayat. The entire layout of sites have become well settled layout with many houses constructed in sites in this layout with licence issued by the 21 Judgment O.S.No.17465/2004 Horamavu Panchayat. On 21/10/2004 defendant No.4 appeared in layout claiming that he has purchased agricultural land to an extent of 1 acre 7 guntas with 6 guntas Kharab land from defendants No.1 to 3 and their children under registered sale deed dated 01/03/2004, wherein the layout was formed 13 years ago by defendants No.1 to 3 and suit sites were sold to him and other plaintiffs. The defendant No.4 threatened to dispossess him and other plaintiffs of their suit properties. The defendant No.4 and his gang tried to remove boundary stones and fencing put up in the schedule sites. He and other plaintiffs and other owners of sites resisted illegal act of defendant No.4 and his men. Hence the police complaint was lodged by site owners with Ramamurthy Nagar Police station.
18. The PW.1 further deposed evidence that after formation of layout to an extent of 1 acre 24 guntas with 47 sites in the Northern portion of land in Sy.No.81/2 of Horamavu Village by defendants No.1 to 3 and after selling all those sites to different 22 Judgment O.S.No.17465/2004 purchasers including schedule-C to him, the defendants No.1 to 3 had no more rights, title or interest in respect of the above said land wherein the layout was formed during the year 1991 to sell again to defendant No.4 under sale deed dated 01/03/2004.
19. The PW.1 further deposed that alleged sale deed of agricultural land dated 01/03/2004 in favour of defendant No.4 in respect of very same land where the layout was formed by defendants No.1 to 3 in 1991 does not confer any title to the defendant No.4 and said sale deed dated 01/03/2004 is illegal and null and void and same is fraudulent one. The northern portion of Sy.No.81/2 in Horamavu Village wherein the defendants formed sites was not an agricultural land since 1992. The said fraudulent sale deed dated 01/03/2004 claimed by defendant No.4 is in respect of property which has already been transferred earlier to him and other site owners. The defendant No.4 has filed caveat Petition against few of site 23 Judgment O.S.No.17465/2004 owners in layout before the court of the Civil Judge (Jr.Dn) Bangalore which is not the jurisdictional court for the area where suit properties are situated. The description of property in the schedule to the caveat petition to show that agricultural land allegedly purchased under the sale deed dated 01/03/2004 is the same land (para 3 of the Caveat Petition) wherein the defendants No.1 to 3 formed layout of sites including his schedule-C property and other suit schedule properties in 1991.
The PW.1 further deposed evidence that he has legal right to peaceful possession and enjoyment of his suit schedule-C property. The defendants No.1 to 3 by creating fraudulent sale deed dated 01/03/2004 in favour of defendant No.4 and with bogus title documents are trying to interfere with peaceful possession and enjoyment of his suit schedule-C property as well as that of other plaintiffs. The defendant No.4 came to the layout on 21/10/2004 with his gang and tried to interfere with the suit schedule properties and attempted to remove boundary stones and fencing to make it appear as agricultural land. The 24 Judgment O.S.No.17465/2004 defendant No.4 has not acquired any valid title under the sale deed claimed by him to enter upon the suit properties or to interfere with the peaceful possession of their properties. Therefore the PW.1 prays to decree the suit. In support of oral evidence PW.1 marked the documents ExP1 to ExP29.
20. The plaintiff No.2 Shylaja Viswanatha W/o Viswanath filed her affidavit in lieu of examination in chief as PW.2 on 07/07/2006 and further examined and identified ExP7 to ExP12 are relates to her property. But PW.2 not subjected for cross examination. Hence her evidence is not considered.
21. The defendant No.1 Narayanappa S/o Venkataswamappa @ Chikkabbaiah filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that plaintiff filed above suit for permanent injunction in respect of non existed alleged suit schedule properties, description of properties, boundaries, measurements in plaint schedule is imaginary and not in existence. The land bearing Sy.No.81/2 of Horamavu Village, 25 Judgment O.S.No.17465/2004 K.R Puram Hobli, Bangalore South Taluk, (Presently Bangalore East Taluk), totally measuring 3 acres 17 Guntas originally belongs to their grandmother Venkatamma, she executed registered WILL dated 13/06/1988 in favour of him and his two brothers namely Nagaraja, Jayaram and his sister Pullamma. The DW.1 further deposed evidence that their grandmother sold 1 acre 20 guntas in favour of Munivenkatamma of Southern Portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title, interest and possession as per her last will executed in their favor. Thet became absolute owners of land measuring 1 acre 37 guntas including kharab of 6 Guntas in said Survey number, which is bounded by East:land of Baluki Dasappa, West:Jayanthi Village, North: land of Yamanna, South: remaining portion in Sy.No.81/2 sold to Munivenkatamma. The DW.1 further deposed evidence that he and defendants No.2 & 3 sold southern portion of Sy.No.81/2 measuring 30 guntas in favour of PadmavathiMadi Reddy and retained 1 Acre 13 Guntas including 6 guntas of kharab, which 26 Judgment O.S.No.17465/2004 is northern portion of Sy.No.81/2. The DW.1 further deposed evidence that defendants No.1 to 3 are agriculturist doing agriculture for their livelihood in the said land retained by them, in order to meet their urgent family necessities they have sold the said land measuring 1 acre 13 Guntas including 6 guntas kharab in Sy.No.81/2 of Horamavu Village in favour of defendant No.4/Y.N.Kondareddy in the year 2004, due to mistake crypt in mentioning on boundaries under afore said sale deed, they have executed rectification deed immediately. After the purchase Y.N.Kondareddy became absolute owner in possession of said land and said land is bounded by East:land of Baluki Dasappa, West: Jayanthi Village, North: land of Yamanna, South: land of Padamavathi Madireddy. Further the said land sub phoded as Sy.No.81/3 measuring 1 acre 7 Guntas, the mutation and RTC entered in the name of defendant No.4. The defendants No.1 to 3 apart from selling the said land Y.N. Kondareddy never sold to anybody and never parted its possession till they sold in favour of Y.N.Kondareddty. The 27 Judgment O.S.No.17465/2004 defendants No.1 to 3 are not benefited with education and not acquainted with worldly affairs, they know only put signature in Kannada not knowing reading and writing any of the languages. That false allegation of plaintiffs that in the year 1991 they have sold alleged sites bearing No.26, 27, 29 in Khata No.122/1 alleged site No.28 house list katha No.135/4 in favour of plaintiffs is false. They have no such Katha property or sites at the alleged Horamavu village limits, the allegations of plaintiffs that layout of sites formed in their land in Sy.No.81/2 of Horamavu village out of 1 acre 24 Guntas is false, after alienation they have not possessed 1 acre 24 Guntas either to form alleged layout of sites, in fact they never approached Horamavu village Panchayath for obtaining Katha in their names, alleged Katha bearing No.122/1 and 135/4 are bogus, fictitious Katha number, fraudulently concocted and created by the plaintiffs to suit their false convenience and attribute claims in their alienated agricultural land in Sy.No.81/2.
28
Judgment O.S.No.17465/2004
22. The DW.1 further deposed that plaintiffs have concocted and got up documents styled as sale deeds in respect of non existed property by misusing bogus and concocted documents, the plaintiffs attempted to gain, interest in their alienated properties belongs to Y.N.Konda Reddy by imaginary cause filed the above suit. That till they sold land measuring 1 acre 7 Guntas in Sy.No.81/2 in favour of Y.N.KondaReddy, the said land continued to be revenue assessed land entered in RTC records maintained by revenue department and continued to be agricultural cultivable lands, they never obtained any conversion for non agricultural residential purposes and never formed any illegal layout in the said land, They have not sold any piece or inch to anybody. The alleged sale deed of plaintiffs not reflect Survey number in which the alleged sites are formed, That after alienating our land in Sy.No.81/2 measuring 1 acre 7 Guntas in favour of Y.N.KondaReddy they have no interest in said land, the alleged cause of action is false 29 Judgment O.S.No.17465/2004 and imaginary. The DW.1 prays to dismiss suit of the plaintiff with exemplary cost.
23. The defendant No.4 Y.N.Kondareddy S/o Narayana Reddy filed his affidavit in lieu of examination in chief as DW.2 and deposed evidence that plaintiff filed suit against defendants for the reliefs of permanent injunction in respect of residential premises bearing site No.29, 28, 27, 26 formed in northern portion of land in Sy.No.81/2 of Horamavu Village, in house list katha No.122/2, K.R.Puram Hobli, Bangalore South Taluk measuring all four sites East to West : 30 feet and North to South: 40 respectively with boundaries i.e., the suit schedule properties. The suit filed by plaintiff for relief of permanent injunction in respect of the alleged non existed of suit schedule property is not sustainable either in law or on facts and as such suit has to be dismissed. Without seeking for declaratory relief of title mere suit for bare injunction is not maintainable in law and hence the plaintiffs not entitle for relief of permanent 30 Judgment O.S.No.17465/2004 injunction. The description of plaint schedule property extent and boundaries mentioned in plaint schedule is not at all correct. The boundaries and extent and property as stated in plaint and schedule is not at all pertaining to old Sy.No.81/2 and new No.81/3 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk. He is bonafide purchaser of agricultural land bearing old Sy.No.81/2 and New No.81/3 measuring 1 acre 7 Guntas of Horamavu village for valuable consideration from rightful owners namely the defendants No.1 to 3 after enquiry and verifying title of his vendor and comes to conclusion that the vendors having marketable title to alienate said property and purchased under registered sale deed on 01/03/2004 for valuable consideration. Therefore his right, title interest and possession have to be protected under law. The plaintiffs are making attempts to lay claim in portion of land measuring to an extent of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village K.R.Puram Hobli, Bangalore East Taluk under the guise of having purchased site bearing house list 31 Judgment O.S.No.17465/2004 number the registered sale deed. The suit schedule properties are nothing to do with land bearing old Sy.No.81/2 and New Sy.No.81/3 of Horamavu village, and alleged description of the plaint schedule, its boundaries and sale deed referred to in plaint is in respect of property situated in gramatana of Horamavu and not at all pertaining to the agricultural land.
24. The DW.2 further deposed that there cannot be site bearing House list number in agricultural land. The house list number indicates that property is gramatana property. However plaintiff is trying to lay claim for portion in the land bearing an extent of 1 acre 7 guntas in old survey No.81/2 of Horamavu village, K.R.Puram Hobli, Bangalore South Taluk, and presently Bangalore East Taluk and contentions taken by plaintiff in pleadings and in evidence affidavit the documents relayed upon by him are different to each other and therefore plaintiff is not entitle for any relief as sought for in the plaint claiming the suit property in the portion of land in Sy.No.81/2 32 Judgment O.S.No.17465/2004 of Horamavu village. That the plaintiff has establish that there is a site bearing house list No. with its extent and boundaries as mentioned in the sale deed and the said site is within the gramatana limits and then only the plaintiff can claim right over the suit schedule property. The plaintiff failed to establish property mentioned in sale deed and also in the plaint schedule and as such suit has to be dismissed. The plaintiff is not having tile and possession to the property described in the plaint schedule and as such the plaintiff cannot value the site at Rs.1000/- under section 26(C) of KCF and SV Act 1956. The plaintiff has to value suit on market value of suit property. That the vendor of plaintiff has no manner of right title interest or possession over the suit schedule property and as such plaintiff does not derive any right, title or possession. The documents produced by plaintiff are all concocted, created and got up documents. The documents are not at all existence in the Horamavu village panchayath. The vendor of plaintiffs also does not find place in Horamavu village Panchayath. On the 33 Judgment O.S.No.17465/2004 strength of created and concocted documents false suit came to be filed against him on the non existence of the suit schedule property. There is no cause of action for suit and plaintiff is not entitle for permanent injunction for want of cause of action. The defendants No.1 to 3 are title holders and in possession and enjoyment of land measuring to an extent of 3 acres 17 guntas in Sy.No.81/2 of Horamavu Vilalge, K.R Puram Hobli, Bengalore South Taluk and they have sold to an extent of 1 acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour defendant No.4/Padmavathi Madireddy and having retained the land measuring 1 acre 7 guntas and they were in possession and enjoyment of 1 acre 7 guntas of land as absolute owners. The defendants No.1 to 3 and their children have sold said 1 acre 7 guntas in Sy.No. 81/2 of Horamvu Village in his favour under registered sale deed dated 01/03/2004 for valuable consideration. The vendors have noticed that there is some discrepancy in boundaries and therefore they have executed rectification deed dated 34 Judgment O.S.No.17465/2004 29/03/2004. That ever since date of purchase he is in possession and enjoyment of 1 acre 7 guntas of land in Sy.No.81/2 of Horamavu Village by exercising his right of ownership and possession. That on the basis of his lawful ownership and possession the concerned revenue authorities have lawfully effected mutation in M.R No.48/2003-2004 and his name has been entered in RTC and pahanies in respect of the said property. Since the date of purchase he is paying Kandayam in respect of said property. That after purchase he approached survey department to measure and fixed boundaries in respect of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu Village. The survey authorities surveyed and fixed boundaries in respect of said property to an extent of 1 acre 7 guntas and assigned with new Sy.No.81/3. That aforesaid extent of 1 acre 7 guntas in New Sy.No.81/3 (old Sy.No.81/2 of Horamavu Village has not been converted for non agricultural residential purposes and it remains as on agricultural land. Further his vendors have not at all formed 35 Judgment O.S.No.17465/2004 any sites in the said land and sold it to any persons including plaintiff at any point of time and remained as an agricultural land and revenue authorities lawfully entered his name in the revenue documents.
25. The DW.2 further deposed that averments made in para No.2 of plaint that plaintiffs are absolute owner in possession and enjoyment of their respective schedule sites. The DW.2 denied that defendants No.1 to 3 have formed layout of sites in northern portion of their land in Sy.No.81/2 of Horamavu village during the year 1991 and obtained house list numbers and katha from local Horamavu Panchayat. The DW.2 further denied entire allegations of plaint paras No.2 to 9. The DW.2 further deposed that the documents upon which the plaintiff is relying in support of his title and possession of the schedule property do not in any manner relayed to the land in Sy.No.81/3 (Old Sy.No.81/2) of Horamavu, K.R.Puram Hobli, Bangalore East Taluk and as such the plaintiff cannot claim 36 Judgment O.S.No.17465/2004 any right or possession over portion of the land in Sy.No.81/3(Old Sy.No.81/2) of Horamavu village, K.R.Puram Hobli Bangalore East Taluk. The defendants No.1 to 3 have sold only an extent of 30 Guntas of land in Sy.No.81/2 of Hormavu village in favour of Padmavathi Madireddy. The defendants No.1 to 3 have not entered in to any other transactions with defendant No.4 except the sale deed referred above which has been executed by defendants No.1 to 3. The defendants No.1 to 3 have not at all executed GPA in favour of defendant No.4 under alleged GPA. After sale by defendants No.1 to 3 in his favour, defendants No.1 to 3 did not retain and possess any land. In the sale deed as well as schedule given in the plaint there is no mention that the suit schedule property is portion of Sy.No.81/2 of Horamavu village. There are no records to show that suit schedule property is not at all in existence. The plaintiff has produced number of documents before this court. The documents produced are all village panchayath records are not at all pertaining to Sy.No.81/2 or 37 Judgment O.S.No.17465/2004 i1/3 of Horamavu village. He applied before Right to Information under RTI Act to furnish the documents received by the plaintiff before the village panchayath authorities, BBMP authorities, Tahasildar, and other authorities. They have sent information stating that documents applied by him are not at all available in the said offices. This itself goes to show that suit schedule property is not at all in existence in the village panchayath records or before any other authorities. The plaintiff trespassed into the portion of land bearing (Old Sy.No.81/2) measuring 1 acre 7 Guntas and New No.81/3 of Horamavu village and got constructed the building. In that regard he filed suit in OS.No.3483/2005 on the file of this court for the reliefs of declaration, mandatory injunction, possession and other reliefs. The said suit is filed not only against the plaintiff's but also others. The said suit is pending. The DW.2 prays to dismiss the suit with exemplary costs. In support of oral evidence DW.1 marked ExD1 to ExD32. 38
Judgment O.S.No.17465/2004
26. The defendant No.5 counsel while arguing relied upon the decisions reported in 1) ILR 2005 KAR 884 2) AIR 1979 CaL 50, 3) AIR 1999 SC 1441, 4) AIR 1962 Madras 149, 5) ILR 2010 KAR 2996, 6) ILR 1998 KAR 1, 7) AIR 1990 Orissa 124, 8) AIR 2004 Karnataka 444, 9) (1998) 9 SCC 719,
10) AIR 1998 KAR 321, 11) ILR 2007 KAR 339. The relevant citations are discussed below.
ILR 2005 KAR 884 T.L.Nagendra Babu V/s Manohar Rao Pawar Suit for Declaration and Injunction requirement of evidence - Duty of the Court - Held - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.
39
Judgment O.S.No.17465/2004
ILR 2007 KAR 339
Aralappa V/s Jagannath and others
Specific Relief Act 1963-Section 34-Declaration of status or right-Discretion of Court-Held, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property -When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable- Appeals are dismissed.
40
Judgment O.S.No.17465/2004
27. The burden is on plaintiffs to prove that they are absolute owner and in lawful possession and enjoyment of the suit schedule 'A' to 'D' properties respectively as on the date of suit and defendants caused interference to his possession and enjoyment over suit schedule property. The contention of the plaintiffs that plaintiff No.1 purchased schedule 'A' property under registered sale deed from defendants No.1 to 3 on 29/12/1991, plaintiff No.2 purchased schedule 'B' property under registered sale deed from defendants No.1 to 3 on 18/12/1991, plaintiff No.3 purchased schedule 'C' property under registered sale deed from defendants No.1 to 3 on 13/01/1992, plaintiff No.4 purchased schedule 'D' property under registered sale deed from defendants No.1 to 3 on 13/01/1992. Their properties are assigned with house list No.122/2, 122/1 & 135/4. They are in peaceful possession and enjoyment of suit schedule properties ever since they purchased the sites from defendants No.1 to 3 thirteen years ago. The defendants No.1 to 3 had formed layout in northern 41 Judgment O.S.No.17465/2004 portion of their land in Sy.No.81/2 to an extent of 1 Acre 24 Guntas and has sold all the 47 sites formed in the layout to various purchasers including them. Many purchasers have already constructed their house in their respective site in the layout purchased from defendants No.1 to 3 after obtaining building license from local Horamavu Panchayat. Such being the state of affairs on 21/10/2004 defendant No.4 appeared in the layout on claiming that he has purchased land in the year 2004, where the layout was formed thirteen years ago by defendants No.1 to 3 and suit schedule sites sold to plaintiffs and said defendant claiming under the said sale deed is threatening to dispossess the plaintiffs of their suit properties. The defendant No.4 has acquired no valid title under the sale deed claimed by him to enter upon the suit sites or to interfere with their lawful possession. The plaintiff examined as PW.1 as discussed above. In support of oral evidence PW.1 marked ExP1 to ExP29.
42
Judgment O.S.No.17465/2004
28. The ExP1 is original sale deed dt.29/12/1991 regarding purchase of suit schedule 'A' property site bearing No.29 in portion of house list katha No.122/1 measuring East to West 40 feet, North to South 40 feet of Horamavu Village K.R Puram Hobli, Bangalore South Taluk by plaintiff No.1 Renuka Vijayakumar from defendants No.1 to 3. The ExP2 is demand register of katha No.122/2 in the plaintiff of plaintiff No.1. The ExP3 and ExP4 are tax paid receipt in the name of plaintiff No.1. The ExP5 is encumbrance certificate for the period from 01/06/1989 to 31/03/2004, wherein there are entries regarding sale of site No.29, khatha No.122/1 of Horamavu village by defendant No.1 to 3 to in favour of Ranuka Vijayakumar on 29/12/1991. The ExP6 is encumbrance certificate for the period from 01/04/2004 to 20/11/2004 in the name of plaintiff No.1 in respect of site No.29, portion of Katha No.122/1 of Horamavu village.
43
Judgment O.S.No.17465/2004
29. The ExP7 is original sale deed dt.18/12/1991 regarding purchase of suit schedule 'B' property site bearing No.28 in a portion of house list katha No.135/4 measuring East to West 40 feet, North to South 30 feet of Horamavu Village K.R Puram Hobli, Bangalore South Taluk by plaintiff No.2 Shylaja Vishwanath from defendants No.1 to 3. The ExP8 is demand register of katha No.135/4 in the plaintiff of plaintiff No.2. The ExP9 and ExP10 are tax paid receipt in the name of plaintiff No.2. The ExP11 is encumbrance certificate for the period from 01/06/1989 to 31/03/2004, wherein there are entries regarding sale of site No.28, khatha No.135/4 of Horamavu village by defendant No.1 to 3 to in favour of Shylaja Vishwanatha on 18/12/1991. The ExP12 is encumbrance certificate for the period from 01/04/2004 to 20/11/2004 in the name of plaintiff No.2 in respect of site No.28, portion of Katha No.135/4 of Horamavu village.
44
Judgment O.S.No.17465/2004
30. The ExP13 is original sale deed dt.13/01/1992 regarding purchase of suit schedule 'C' property site bearing No.27 in a portion of house list katha No.122/1 measuring East to West 40 feet, North to South 30 feet of Horamavu Village K.R Puram Hobli, Bangalore South Taluk by plaintiff No.3 V.M.Raveendran from defendants No.1 to 3. The ExP14 is demand register of katha No.122/1 in the plaintiff of plaintiff No.3. The ExP15 and ExP16 are tax paid receipt in the name of plaintiff No.1. The ExP17 is encumbrance certificate for the period from 01/06/1989 to 31/03/2004, wherein there are entries regarding sale of site No.27, khatha No.122/1 of Horamavu village by defendant No.1 to 3 to in favour of V.M.Raveendran on 13/01/1992. The ExP18 is encumbrance certificate for the period from 01/04/2004 to 20/11/2004 in the name of plaintiff No.3 in respect of site No.27, portion of Katha No.122/1 of Horamavu village. The ExP19 is original sale deed dt.13/01/1992 regarding purchase of suit schedule 'D' property site bearing No.26 in a portion of house list katha 45 Judgment O.S.No.17465/2004 No.122/2 measuring East to West 40 feet, North to South 30 feet of Horamavu Village K.R Puram Hobli, Bangalore South Taluk by plaintiff No.4 V.M.Hareendran from defendants No.1 to 3. The ExP21 and ExP22 are tax paid receipt in the name of plaintiff No.4. The ExP23 is encumbrance certificate for the period from 18/06/1998 to 31/03/2004 in the name of plaintiff No.4 in respect of site No.24, portion of Katha No.122/2 of Horamavu village. The ExP24 is unregistered General Power of Atorney executed by plaintiff No.34 V.M.Hareendran in favour of his brother Raveendran for conducting this suit. The ExP25 is layout of the properties. The ExP26 to ExP29 are photographs marked as they belong to suit schedule properties.
31. On the contrary the defendant No.1 examined as DW.1 as discussed above and he denied the allegation of the plaintiffs that plaintiffs are owners of the suit schedule 'A' to 'D' properties respectively and defendant No.1 contention that there is no existence of suit schedule property, the description 46 Judgment O.S.No.17465/2004 of the property boundaries measurement mentioned in plaint schedule is imaginary. The defendant No.1 contention that land bearing Sy.No.81/2 of Horamavu village, K.R. Puram hobli, Bengaluru South taluk (presently Bengaluru East Taluk) totally measuring 3 acres 17 guntas belongs to his grandmother Venkatamma and she was executed Registered Will dated 13/06/1988 in his favour and his two brothers Nagaraja, Jayaram and sister Pullamma. His grandmother sold 1 acre 20 guntas in favour of Munivenkatamma on southern portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title and possession of said portion as per the last Will executed in their favour and they became absolute owners of land measuring 1 acre 37 guntas including kharab of 6 guntas in said survey number, which is bounded by East:
land of Baluki Dasappa, West: Jayanthi village, North: land of Yamanna, South: remaining portion in Sy.No.81/2 sold to Munivenkatamma. The defendants No.1 to 3 are agriculturists and for their livelihood they have sold 1 acre 13 guntas 47 Judgment O.S.No.17465/2004 including 6 guntas of kharab in Sy.No.81/2 of Horamavu village in favour of defendant No.5 Y.N. Kondareddy in the year 2004, due to mistake crypt in mentioning in boundaries under sale deed, they have executed rectification deed immediately, after purchase Y.N.Konda Reddy became absolute owner in possession of land sold by them and same was bounded by East: Land of Baluki Dasappa, West: Jayanthi village, North: land of Yamanna and South: land of Padmavahi Madireddy. In pursuance of registered sale deed in favour of Y.N. Kondareddy he continued in possession of said land and afterwards the said land was sub phoded as Sy.No.81/3 and the said Kondareddy has not sold property until now he is in possession and enjoyment of said land and his name is appearing in revenue records as owners in possession.
32. The defendant No.4 Y.N. Kondareddy examined as DW.2 and he has also deposed the evidence as contended by defendant No.1 as discussed above as he purchased land 48 Judgment O.S.No.17465/2004 bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village from defendants No.1 to 3 afterwards it is given new number as Sy.No.81/3 of Horamavu village. The defendant No.5 also denied the ownership, title and possession of plaintiff over suit schedule property and also submits there is no existence of suit schedule property within the boundaries as contended by plaintiff. The defendant No.4 contention that plaintiffs trespassed into the possession of the land bearing Sy.No.81/2 measuring 1 acre 7 guntas and new Sy.No.81/3 of Horamavu and got constructed building and in this regard he filed the suit in OS No.3483/2005 on the file of this court for the relief of declaration and mandatory injunction, possession and other reliefs. The defendant No.4/DW.2 in support of oral evidence marked ExD1 to ExD32.
33. The ExD1 is certified copy of plaint in OS No.3483/2005 and ExD2 is certified copy of written statement in OS No.3483/2005 which is filed by present defendant No.5 Y.N. 49 Judgment O.S.No.17465/2004 Kondareddy against defendant No.1 Narayanappa and others.
The ExD3 is certified copy of plaint and ExD4 is certified copy of written statement in OS.No.16322/2005 pending on the file of this court, which is filed by Renuka Vijayakumar & others against Narayanappa and others. The ExD5 is certified copy of sale deed dated 01/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 in respect of land measuring 1 Acres 17 Guntas including 6 Guntas Kharab in Sy.No.81/2 of Horamavu Village, K.R.Puram Hobli, Bangalore. The ExD6 is certified copy of rectification deed dated:29/03/2004 defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 rectifying about boundaries mentioned in the sale deed dated.01/03/2003 towards West:
Jayanti Grama, Gomala land instead of land of Baluki Dasappa, towards North:Vemanna's land instead of land of Padmavati's land, towards South: Padmavathi's land instead of Baluki Dasappa's land. The ExD7 is Mutation Register No.48 50 Judgment O.S.No.17465/2004 regarding change of khatha of Sy.No.81/2 measuring from 1 acre 07 guntas from defendant No.1 Narayanappa in favour of defendant No.5 Y.N. Konda Reddy. The ExD8 is certified copy of record of right of land bearing Sy.No.81/2 to the extent of 1.07 acres of Horamavu village in the name of defendant No.5.
The ExD9 is certified copy of Atlas map of Sy.No.81/2, ExD10 is certified copy of Hissa tippani of Sy.No.81/2. The ExD11 is certified copy of form No.5 relating to Sy.No.81/2 of Horamavu village. The ExD12 is certified copy of the Karnataka revision settlement Aakaar bandh relating to Sy.No.81/2. In ExD13 four certified copies of record of rights relating to Sy.No.81/2 of Horamavu village are marked which are standing in the name of defendant No.5 Y.N. Kondareddy. The ExD14 is certified copy of encumbrance certificate for the period from 01/06/1989 to 06/06/2004, wherein there are entries regarding sale of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village by Narayanappa and others to Y.N. Kondareddy. The ExD15 is certified copy of endorsement 51 Judgment O.S.No.17465/2004 issued by Horamavu Grama Panchayath on 15/12/2004 mentioning that relating to khatha No.122/1, 122/2, 129/3, 135/4 of Sy.No.81/2 and 81/3 there are no records standing in the name of Narayanappa, Nagaraju and Jayarama in their records. The ExD16 is marked in evidence as certified copy of the sale deed dated 15/04/1972, but in the said document were mentioned are not properly seen and unable to read the document. Hence the said document is not discussed. In ExD17 fifteen certified copies of endorsements issued by BBMP are marked as ExD17(1) to ExD17(15) those are issued by BBMP, Bengaluru on the application filed by Y.N. Kondareddy under RTI Act relating to information called in respect of house list Nos.122/1, 122/2, 135/4, 129/2, 129/3, site Nos..20, 28, 29, 27, 26, 21, 41, 38, 39, 4 5, 6, 7, 36, 44, 45 and 42, 23 and the BBMP informed that relating to said sites in Sy.No.81/2, New No.81/3 of Hormavu village, there are no records in their office relating to lay out plan, sanctioned plan in their office. In ExD18 three mutation registers are marked as 52 Judgment O.S.No.17465/2004 ExD18 (1) to ExD18 (3) relating to transfer of Sy.No.81/2 measuring 1 acre 7 guntas from Narayanappa to Y.N. Kondareddy.
34. The ExD19 is certified copy of Atlas relating to Sy.No.81/2. The ExD20 is certified copy of the endorsement issued by K.R.M. Nagar police station on the application of Y.N. Kondareddy. The ExD21 is certified copy of the information furnished by the Sub-Registrar, Banaswadi to Y.N. Kondareddy called under RTI Act. The ExD22 is certified copy of endorsement issued by the Deputy Commissioner, Bengaluru to Y.N. Kondareddy to the information called by Y.N. Kondareddy about conversion of land bearing Sy.No.81/2 of Horamavu village for non-agricultural purpose and Deputy Commission furnished information that there are no records in their office relating to the information called by Y.N. Kondareddy. The ExD23 is certified copy of endorsement issued by Tahsildar, Bengaluru East Taluk informing that the 53 Judgment O.S.No.17465/2004 land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village, K.R. Puram Hobli, Bengaluru there is no order of conversion for non agriculture. In ExD24 two certified copies of tax paid receipts are marked. The ExD25 is certified copy of application given by the Tahsildar to Y.N. Kondareddy for surveying the land and making phode in Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village.
35. The ExD26 certified copy of sale deed dt.17/07/1991 discloses that Narayanappa S/o late Venkataswamappa, Nagaraj S/o late Venkataswamappa, and Jayaram S/o late Venkataswamappa i.e. defendants No.1 to 3 have sold 30 Gunatas in Sy.No.81/2 of Hormavu village, K.R.Puram Hobli, Bangalore South Taluk in favour of defendant No.4 Madireddy Sripadmavathi W/o Jagadish. The ExD27 is certified copy of order sheet in OS.No.1208/04 of Prl. Civil Judge (Jr.Dn) Bengaluru Rural filed by Lazarus K against Kondareddy Y.N. and ExD28 is certified copy of order on I.A.1 in the said suit. 54
Judgment O.S.No.17465/2004 The ExD29 is certified copy of the survey sketch and ExD30 is certified copy of the mahazar relating to Sy.No.81/3 of Horamavu village. The ExD31 is certified copy of endorsement issued by Assistant Commissioner, Bengaluru North taluk to Y.N. Kondareddy informing about non-filing of any case for purchase of land in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village in violation of Section 79 (a) and
(b) of Karnataka Land Reforms Act. The ExD32 is information furnished by Assistant Revenue Officer, BBMP, Horamavu Sub Division Mahadevapur Division Bengaluru to Y.N. Kondareddy, as said Y.N.Kondareddy called information to furnish details in which survey number Site No.26, house list No122/4 situated at Horamavu village as per sale deed dated 18/06/1991 of Gopalkrishna is situated and also called documents survey sketch map, layout plan, and authenticated document to show where exactly said site is situated, the Assistant Revenue officer, BBMP, Horamavu Sub Division given information that the property is revenue extension and 55 Judgment O.S.No.17465/2004 not entered in assessment book and survey sketch, layout plan relating to said site is not available in the office and site is unauthorized extension and not entered in the assessment record of their office.
36. The contention of the plaintiffs that plaintiff No.1 purchased suit schedule 'A' property site No.29 under registered sale deed on 29/12/1991 from defedants No.1 to 3. The plaintiff No.2 purchased suit schedule 'B' property site No.28 under registered sale deed on 18/12/1991 from defendants No.1 to 3. The plaintiff No.3 purchased suit schedule 'C' property site No.27 under registered sale deed on 13/01/1992 from defendants No.1 to 3. The plaintiff No.4 purchased suit schedule 'D' property site No.26 under registered sale deed on 13/01/1992 from defendants No.1 to The plaintiffs produced and marked ExP1 to ExP29, out of those documents the ExP1 original sale deed regarding purchase of suit schedule 'A' property by plaintiff No.1, the 56 Judgment O.S.No.17465/2004 ExP7 original sale deed regarding purchase of suit schedule 'B' property by plaintiff No.2, the ExP13 original sale deed regarding purchase of suit schedule 'C' property by plaintiff No.3, the ExP19 original sale deed regarding purchase of suit schedule 'D' property by plaintiff No.4. The plaintiffs have not produced katha extract and katha certificate of schedule properties issued by BBMP to show that his name is appeared in the revenue records of BBMP. Further as per the plaintiffs defendant No.1 to 3 are owners of Sy.No.81/2 measuring to an extent of 1 acre 24 guntas of Horamavu village and they have formed 47 sites in the said land and offer to sell the said sites to the intending purchasers, they have purchased the their respective suit schedule properties. The defendant No.1 examined as DW.1 denied regarding formation of 47 sites in 1 Acre 24 guntas in Sy.No.81/2 of Horamavu village and sold schedule sites to plaintiffs. The defendant No.1 to 3 contention that they have sold 1 acre 7 guntas + 6 guntas pot kharab land to the defendant No.5 Y.N. Kondareddy on 01/03/2004. 57
Judgment O.S.No.17465/2004
37. The defendant No.5 examined as DW.2 deposed that he has purchased the land 1 acre 7 guntas + 6 Guntas pot kharab land in Sy.No.81/2 of Horamavu village from defendant No.1 to 3 Narayanappa and others and since then he possession and enjoyment of said agricultural land. The defendant No.5 denied regarding formation of 47 site in Sy.No.82/1 measuring 1 Acre 24 Guntas of Hormavu. In support of his oral contention the DW.2 marked ExD5 certified copy of the sale deed dated 01/03/2004 regarding purchase of 1 Acre 13 Gunta in Sy.No.81/2 of Horamavu village by him from the defendants No.1 to 3 and also produced rectification deed about rectification of boundaries towards west, north, south in sale deed as per ExD6. Further as per ExD7 mutation register katha of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village transferred in the name of defendant No.5 from defendants No.1 to 3. Further as per ExD8 name of defendant No.5 is appeared in the record of rights of the land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village for the year 58 Judgment O.S.No.17465/2004 2004-05. The DW.2 has marked ExD9 Atlas, ExD10 Tippani, ExD11 form No.5, ExD12 Karnataka Revision Settlement Akaar Bandh relating to Sy.No.81/2 of Horamavu village and afterwards new number was given as Sy.No. 81/3. Further the ExD13 (1) to ExD13(4) are records of rights of the Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village in the year 2004-2005 till 2009-2010 discloses the name of defendant No.5 Y.N. Kondareddy as owner and cultivator of the said land. Under the circumstances the burden is on the plaintiff to prove that the said land bearing Sy.No. 81/2 to an extent of 1 acre 24 guntas of Horamavu village the defendants No.1 to 3 formed 47 sites and sold to the different purchasers through their GPA holder defendant No.4. But to prove said fact the plaintiff has not produced the conversion order copy of said land measuring 1 acre 24 guntas in Sy.No.81/2 of Horamavu village for non-agricultural purpose issued by the concerned authority along with layout plan, sketch of the said land and 59 Judgment O.S.No.17465/2004 also house list numbers given to the said 47 sites by the concerned revenue authority.
38. The plaintiffs contended that to suit property 'A" property house list katha No.122/1, suit schedule 'B' property khata No.135/4, suit schedule 'C' property khata No.122/1 and suit schedule 'D' property khata No.122/2 of Horamavu village was given. But to prove said fact there is no specific document produced by the plaintiff. Further the plaintiff examined as PW.1 in his cross examination deposed evidence that "In my sale deed Sy.No.81/2 is not shown. I do not know how many properties stood in the name of defendants No.1 to 3. Government has not approved any layout plan. There is no document to show that my katha number is made in Sy.No. Sy.No.81/2. Till today RTC is continued in respect of Sy.No.81/2. I do not know that Sy.No.81/2 is agricultural land and continued in revenue records. I do not know where is Sy.No.81/2 is situated. I do not know what is the 60 Judgment O.S.No.17465/2004 distance of Sy.No.81/2 from Horamavu village. There is no conversion order in respect of Sy.No.81/2". The PW.1 further deposed evidence in his cross examination that "There is no document in grama panchayat showing that my katha number is in Sy.No.81/2". The PW.1 further deposed evidence in his cross examination that "There is no any records in Horamavu panchayath to show that suit property is part of Sy.No.81/2". The PW.1 further deposed evidence in his cross examination that "I have not produced any survey sketch for making 1 acre 24 guntas as sites in Sy.No.81/2". Therefore the evidence of PW.1 discloses that there are no records to show that suit schedule properties are part of Sy.No.81/2 of Horamavu village. Where as in the plaint he contended that in Sy.No.81/2 of Horamavu village suit property is formed. To prove said contention the plaintiff has not produced any documents.
61
Judgment O.S.No.17465/2004
39. Further as per plaint averments plaintiff No.2 is purchaser of suit schedule 'B' property. The plaintiff No.2 filed her affidavit in lieu of examination in chief as PW.2 and she also identified ExP7 to ExP12 (marked in the evidence of PW.1) are belongs to her property, but she has not appeared before court to face cross examination, hence her examination in chief evidence is not considered. Hence plaintiff No.2 failed to prove that she is the purchaser of suit schedule 'B' property. Further as per plaint averments plaintiff No.3 is purchaser of suit schedule 'C' property and plaintiff No.4 is purchaser of suit schedule 'D; property, but they not appeared before court to depose evidence to prove that they are owners in possession of their respective schedule 'C' & 'D' properties, hence they have not proved they are purchasers of suit schedule 'C' and 'D' properties. The defendants No.1 to 3 have denied the formation of sites in Sy.No.81/2 of Horamavu village and also title of the plaintiffs over the suit schedule 'A' to 'D' properties 62 Judgment O.S.No.17465/2004 respectively. Under the circumstances the suit of the plaintiffs for bare injunction is not maintainable.
40. The DW 2 marked ExD17(1) endorsement discloses that house list No.122/1, 122/2, 135/4, 129/2, 129/3 relating to Sy.No.81/2 New Sy.81/3 of Horamavu village, the documents verified in office, but the said documents are not found in the revenue records in the name of Naryanapappa, Nagaraju and Jayaram. Further ExD17(2) endorsement discloses that no sanction plan or layout plan relating to Site No.20, 29, 27, 28, 26, 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45, 42 of Sy.No.81/2 new Sy.No.81/3 of Horamavu village are found in their records, and such documents are not in the name of Nagaraja, Narayanappa and Jayarama in their office records. In ExD17(3) the defendant No.5 called information regarding furnishing copies of khatas of Sites No.20, 29, 28, 27, 26, 37, 21, 41, 38, 4, 5, 6, 7, 36, 44, 45, 42, 23 in katha Nos.122/2, 122/1, 135/4 of Horamavu village and the Revenue Officer furnished the 63 Judgment O.S.No.17465/2004 information that Namuna No.9 and 10 of the said properties are not in the name of Nagaraju, Narayanappa and Jayarama. Further the ExD23 is endorsement issued by the Tahsildar, Bengaluru East Taluk mentioning in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village there is no conversion of land. Therefore from these exhibits discussed above it is clear that the land bearing Sy.No.81/2 measuring an extent of 1 acre 07 guntas of Horamavu village not converted for agricultural purpose and no sites were formed in the said land. Further records of rights for the years 2004-2005 till 2009-2010 marked by DW.2 at ExD8, ExD13 (1) to ExD13 (4) discloses the land measuring 1 acre 7 guntas in Sy.No.81/2 of Horamavu village in the name of defendant No.5 Y.N. Kondareddy is an agricultural land, hence at the time of filing suit by plaintiff in the year 2004 said land is agricultural land. That in the citation reported in ILR 2005 Karnataka 884 relied by the defendant No.5 counsel it is held that "Unless the Court is satisfied with regard to material details in the light of the material 64 Judgment O.S.No.17465/2004 evidence with regard to the identification of the property, no declaration and injunction can be granted." Further in the another citation reported in ILR 2007 Karnataka 339 relied by the defendant No.5 counsel it is held that "In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property -When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable-Appeals are dismissed". The both citation discussed above applies to the present case in hand, as in the present suit the plaintiffs failed to prove his valid 65 Judgment O.S.No.17465/2004 ownership possession and enjoyment over the suit schedule properties as on date of suit, hence question of interference by the defendants in the said properties does not arise. Hence plaintiffs are not entitle for relief of permanent injunction against the defendants. The plaintiff failed to prove Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative.
41. Issue No.4:
In view of above discussion I proceed to pass following :ORDER:
The suit of the plaintiff is here by dismissed with costs.
Draw decree accordingly.
(Dictated to the stenographer, typed by him, then taken print out, corrected, signed and pronounced by me in the open court on this 22 nd day of September 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.66
Judgment O.S.No.17465/2004
:ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : V.M Raveendran S/o K.K. Nair
DOCUMENTS MARKED FOR THE PLAINTIFF
ExP1: Sale deed related to Schedule-A property
ExP2: Demand registers extract related schedule-A
ExP3: Schedule-A Property tax paid receipt
ExP4: Schedule-A property tax paid receipt
ExP5: Encumbrance certificate of schedule-A property
ExP6: Encumbrance Certificate of schedule-A property
ExP7: Original Sale deed of schedule-B property,
ExP8: Demand Register Extract respect of schedule-B property ExP9: Tax paid receipts in respect of the schedule-B property ExP10: Tax paid receipt in respect of the schedule -B property ExP11: Encumbrance Certificate of schedule-B property ExP12: Encumbrance Certificate of schedule-B property ExP13: Original Sale Deed in respect of Schedule-C property ExP14: Demand Register extract of Schedule-C property ExP15: Tax paid receipt of schedule-C property ExP16: Tax paid receipt of schedule-C property ExP17: Encumbrance Certificate of schedule-C property ExP18: Encumbrance Certificate of schedule-C property 67 Judgment O.S.No.17465/2004 ExP19: Original sale deed of schedule-D property ExP20: Demand register extract of schedule-D property ExP21: Tax paid receipt of schedule-D property ExP22: Tax paid receipt of schedule-D property ExP23: Encumbrance Certificate of schedule-D property ExP24: Special power of attorney ExP25: Layout plan ExP26 to 29: Photographs WITNESSES EXAMINED FOR THE DEFENDANTS DW.1: Narayanappa S/o Venkataswamappa @ Chikkabbaiah DW.2: Y.N.Kondareddy S/o Narayana Reddy DOCUMENTS MARKED FOR THE DEFENDANTS ExD1: Certified copy of plaint in O.S.No.3483/2005 ExD2: Certified copy of Written Statement in OS.No.3483/05 ExD3: Certified copy of plaint in O.S.No.16322/2005 ExD4: Certified copy of Written Statement in OS.No.16322/05 ExD5: Certified copy of sale deed dated 01/03/2004 ExD6: Certified copy of Rectification deed ExD7: Certified copy of Mutation ExD8: Certified copy of RTC ExD9: Certified copy of Atlas copy ExD10: Certified copy of Hissa Tippani copy ExD11: Certified copy of Form No.5 ExD12: Certified copy of the Karnataka Revision Settlement Akhar Bandh ExD13(1) to (4): Certified copy of RTC ExD14: Certified copy of Encumbrance Certificate ExD15: Certified copy of Endorsement 68 Judgment O.S.No.17465/2004 ExD16: Certified copy of Sale deed dated 15/04/1972 ExD17(1) to (16): Certified copy of endorsement issued by BBMP ExD18(1) to (3): Certified copy of Mutation Register extract ExD19: Certified copy of Atlas copy ExD20: Certified copy of endorsement issued by police station ExD21: Certified copy of RTI information by Sub-Registrar Banaswadi ExD22: Certified copy of Endorsement ExD23: Certified copy of Endorsement ExD24(1) to (2): Certified copy of tax paid receipt ExD25: Certified copy of Application given to Tahasildar ExD26: Certified copy of Sale deed dated 17/07/1991 ExD27: Certified copy of Order sheet in O.S.No.1208/2004 ExD28: Certified copy of Order on IA No.1 in OS.No.1208/2004 ExD29: Certified copy of Survey Sketch ExD30: Certified copy of Mahazar ExD31: Certified copy of endorsement by Assistant Commissioner, Bangalore North XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.