Bangalore District Court
Sri.Satish Balaram vs Smt.N.Gayathri on 23 April, 2016
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 23rd day of April 2016.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.26366/2010
Plaintiff: Sri.Satish Balaram, Rep. by GPA
Holder B.Purushotham, aged
about 32 yrs, Flat No.202,
Reliable Residency, Varthur
Hobli, Near HSR Layout,
Bengaluru-560102.
(By Sri.S.Kanagarajan, Advocate)
V/S
Defendant: Smt.N.Gayathri, W/o.Gopal
Reddy, aged about 40 yrs,
R/at.No.81, Venkatapural
Village, Begur Hobli, Bengaluru.
(By Sri.Y.N.Sathyanarayana Rao, Advocate)
Date of institution of the suit 24.08.2010
Nature of the suit (Suit for Pro-note, Suit for Permanent
Suit for Declaration and Possession, Injunction
Suit for Injunction, etc.)
2 O.S. No.26366/2010
Date of commencement of recording 06.11.2013
of the evidence
Date on which the Judgment was 23.04.2016
pronounced
Total duration Year/s Month/s Day/s
05 07 29
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for permanent injunction to restrain the defendant from interfering with the possession of the plaintiff over the suit schedule property and for costs.
2. The description of the suit schedule property as shown in the schedule to the plaint, is as follows:-
All that piece and parcel of the immovable residential site bearing No.161, measuring ½ x 40 x 52 feet in all measuring 1040 Sq.Ft., its katha No.447/649/631/101/5/161, situate at Haralur Village, Varthur Hobli, Bengaluru East Taluk, and bounded on:
East by: Site No.154; West by: Road; North by: Road; and on South by: Site No.160.
3. Case of the plaintiff, in brief, is as below: - 3 O.S. No.26366/2010
The plaintiff is the absolute owner of schedule property; i.e., vacant site, which was purchased through a registered sale deed dated 22.01.2010 and has paid the tax to the concerned authority. The defendant is the owner of the adjacent property bearing site No.160 formed out of converted Sy.No.101/5, katha No.630, situated at Haralur Village, Varthur Hobli, Bengaluru East Taluk, presently comes under BBMP limits measuring East to West: 40 Ft., and North to South: 30 Ft., in all measuring 1200 Sq.Ft. On 28.06.2010 and 16.08.2010 when the defendant raised the pillars and illegal construction was done in full fledge, then the plaintiff went to the spot and stopped the construction and also went to the police station and lodged a police complaint and thereafter filed a suit for injunction in O.S. No.25964/2010 and the same was decreed on 02.08.2010 against the vendor of the defendant. When an enquiry was conducted after lodging the complaint to the police, the plaintiff came to know that the vendor of the defendant has sold the property to the present defendant. Hence, this suit arose.4 O.S. No.26366/2010
4. After issuance of the suit summons and duly served upon her, the defendant appeared through her advocate Sri.Y.N.Sathyanarayana Rao; thereafter the defendant has filed her WS.
5. Case of the defendant, in brief, is as below:-
This defendant contended in her WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. Further it is contended that the plaintiff has not approached this court with clean hands and he has suppressed the material facts. This defendant contended that one S.Manohar was the absolute owner of the land bearing Sy.No.101/5 measuring 0-22 guntas, situated at Haralur Village, Varthur Hobli, Bengaluru South Taluk, now called Bengaluru East Taluk, and the said land was converted for non-agricultural purposes and the said S.Manohar has sold the sites so formed in the converted land in favour of various persons and has sold the site No.160, kahta No.630 measuring East to West: 40 ft., and North to South: 30 feet, situated at Haralur Village in favour of one Anil Bedi under sale deed dated 28.02.2003 for valuable consideration. 5 O.S. No.26366/2010 Further it is contended that the said Anil Bedi has sold the same in favour of C.Pillareddy under sale deed dated 18.10.2004 for valuable consideration. This defendant it is further contended that the said C.Pillareddy out of love and affection executed a gift deed in favour of his son P.Girish on 29.07.2006 and in turn the said P.Girish has sold the same site No.160 in favour of this defendant under the registered sale deed dated 25.04.2008 for valuable consideration and this defendant is in possession and enjoyment of the said site property and the khatha has been transferred in the name of this defendant and she has been paying taxes to the concerned authority and also by obtaining sanctioned plan she has been putting up constructions in the property bearing No.160. This defendant contended that the plaintiff who has no manner of right, title, interest over the site No.160 has filed a false suit as against this defendant. Further it is contended that the plaintiff had filed a false suit against the vendor of this defendant in O.S. No.25964/2010 and also obtained an exparte decree in collusion with the process server and subsequently the plaintiff has filed a suit against this defendant and also filed RFA No.1539/2010 before 6 O.S. No.26366/2010 the Hon'ble High Court of Karnataka and by the order dated 30.09.2010, the Hon'ble High Court of Karnataka was pleased to set aside the judgment and decree passed in the said case on 02.08.2010 and remanded the matter before this court with a direction, directing the said P.Girish to file the written statement in the said case. This defendant contended that the plaintiff has no manner of right, title, interest or possession of any kind over the property belongs to this defendant and the said P.Girish is the donee in respect of the site property bearing No.160 and father of the said P.Girish is the bonafide purchaser in respect of the said site property and likewise, this defendant is the bonafide purchaser in respect of the said site property and accordingly she is in possession and enjoyment of the said site property and she has invested huge amounts towards obtaining plan and licence and also towards constructions over the said site property and the plaintiff in order to harass this defendant has filed a false suit against this defendant by creating and concocting a story. Further it is contended that there is no cause of action for filing the suit and the schedule and the boundaries stated to the plaint are totally incorrect 7 O.S. No.26366/2010 and the suit is bad for mis-joinder and non-joinder of proper and necessary parties. Thus, this defendant prays to dismiss the suit of the plaintiff with heavy costs.
6. From the above said pleadings, following issues have been framed:-
1. Whether the plaintiff proves that he was in lawful possession of the suit schedule property on the date of the suit?
2. Whether plaintiff proves the alleged interference?
3. What decree or order?
7. On behalf of the plaintiff, affidavit evidence of GPA holder of plaintiff has been filed and he has been examined as P.W.1 and Exs.P.1 to P.17 documents have been got marked.
Defendant has not adduced any evidence on her behalf and also not got marked any documents on her behalf in order to disprove the case of plaintiff.
8. Ex.P.1 is a GPA executed by Satish Balaram and Ex.P.2 is a sale deed dated 22.01.2010, Ex.P.3 is nil encumbrance certificate, Ex.P.4 is a tax paid receipt, Ex.P.5 is khatha certificate, 8 O.S. No.26366/2010 Ex.P.6 is khatha extract and also produced the photographs with CD of the suit schedule property as Ex.P.7 to P.14, and Sy. sketch map is produced and got marked as Ex.P.15, Ex.P.16 is a complaint given to the police station and Ex.P.17 is a endorsement given by the police.
9. Heard, the learned advocate for the plaintiff and perused the records. In spite of sufficient time granted to the defendant counsel, she has remained absent and not placed her arguments; hence, arguments on behalf of defendant has been taken as heard.
10. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: In the Affirmative, Issue No.2: In the Affirmative, Issue No.3: As per final order, for the following:-
REASONS.
11. ISSUE No.1: In order to prove the case of plaintiff, the GPA holder of plaintiff got examined as a P.W.1 by reiterating the 9 O.S. No.26366/2010 plaint averments in his chief-examination stated that he is the GPA holder of the plaintiff. His brother is the absolute owner of the immovable property bearing site No.161, old VP khatha No.631, the layout formed in converted Sy. No.101/5 as per the conversion order No.BDA/ALN (E)/VB/7/2002-2003 dated 29.06.2002 issued by the Deputy Commissioner, Bengaluru. Now the said property is coming within the jurisdiction of BBMP with new khatha No.447/649/631/101/5/161 situated at Haralur Village, Varthur Hobli, now it is in Bengaluru East Taluk. The said property was got registered under the registered sale deed on 21.01.2010 which was purchased by his brother and the original sale deed of the suit property is kept in the Sundaram BNP Paribhas Home Finance Limited. P.W.1 further stated that defendant is the owner of the adjacent property site No.160 formed out of converted Sy.No.101/5, khatha No.630 situated at Haralur Village, Varthur Taluk. It is also coming within the Bengaluru East Taluk and BBMP and total measurement of the defendant's property is 1200 Sq.Ft., which is East-West: 40 ft., North-South: 30 Ft. He has been paying the taxes to the concerned authority after purchasing of the 10 O.S. No.26366/2010 said property by his brother and the said suit schedule property is a vacant site and his brother become owner of it and khatha is also issued by the BBMP.
12. Plaintiff GPA holder has produced the GPA executed by Satish Balaram in favour of B.Purushotham. Through the said document authorization is given to the Satish Balaram represented by GPA holder B.Purushotham to proceed with the matters. Ex.P.2 is a sale deed executed by H.S.Ananthapadmanabha Rao in favour of plaintiff on 22.01.2010 in respect of the suit schedule property for a sale consideration of Rs.15,52,557/-. In the said recital of the Ex.P.2 it is mentioned that on the date of registration of the absolute sale deed the possession of the suit schedule property is handed over to the plaintiff. Ex.P.3 is a nil encumbrance certificate for the period of 1st April 2009 to 13th August 2013 in which it is mentioned that the above said suit schedule property is sold out by the Ananthapadmanabha in favour of the plaintiff for sale consideration of Rs.15,52,557/-. Plaintiff has produced the tax paid receipts of dated 21.08.2013 relating to the suit schedule property which is paid by the Satish Balaram, who is represented 11 O.S. No.26366/2010 by GPA holder B.Purushotham to the suit schedule property. Ex.P.5 is a khatha certificate of the suit schedule property issued by the Assistant Revenue Officer, Marathahalli Sub-Division, BBMP, in which the name of plaintiff is mentioned as a khatha holder of the said property. Plaintiff has produced the extract of the constructed house and open space relating to the suit property standing in the name of plaintiff, which is transferred from its original owner H.S.Ananthapadmanabha Rao. The said document is for the year 2013-2014. Plaintiff has produced the photographs of suit schedule property which are at Ex.P.7 to P.13 and CD of the same is at Ex.P.14. In the above said photographs it is appearing that the building construction is undertaken in the suit schedule property. On careful consideration of the above said affidavit evidence of P.W.1 and documentary evidence of plaintiff it is appearing that the plaintiff has placed the necessary records of property khatha, sale deeds and tax paid receipts, etc., which are relating to the year of 2013-2014. In the said documents the name of plaintiff is mentioned as a owner and possessor of the suit schedule property. On the other hand, though the defendant has 12 O.S. No.26366/2010 disputed the possession and ownership of the plaintiff over the suit schedule property neither produced any oral or affidavit evidence and documents to prove his WS contents. It is also pertinent to note in this case that the counsel for the defendant has not chosen to cross-examine the P.W.1 in order to establish his defence against the suit schedule property as contended in WS and to disprove the case of plaintiff as the plaintiff is not in lawful possession of the suit schedule property. Under such circumstances, it is clear that there is no any hurdle to accept the unchallenged version of the plaintiff; i.e., affidavit and documentary evidence in favour of the plaintiff and against the defendant. Therefore, I would like to say that the plaintiff has successfully proved his lawful possession over the suit property as on the date of the suit. Hence, I would like to answer issue No.1 in favour of the plaintiff as a Affirmative.
13. ISSUE No.2: In the affidavit evidence of P.W.1 it is stated that on 28.06.2010 and 16.08.2010 the vendor of the defendant started putting up a illegal construction over the suit schedule property, which is in peaceful possession and enjoyment of the plaintiff. After coming to the knowledge of the plaintiff 13 O.S. No.26366/2010 about the above said illegal act of defendant, then he got to the spot and prevented the obstruction of the defendant. Even in this regard the complaint as per Ex.P.16 is given to the jurisdictional police and the endorsement is given by the police as per Ex.P.17. The above said affidavit evidence of the plaintiff discloses that the obstruction and interference caused by the defendant against the plaintiff in respect of peaceful possession and enjoyment of the plaintiff over the suit schedule property. It is pertinent to note that the suit summons issued upon the defendant and later on he appeared through his advocate and filed the written statement by claiming the right and title over the suit property. But, the defendant neither chosen to enter into witness box to substantiate his WS contents through the affidavit evidence nor placed any documentary evidence. Thus, in this case it is also appearing that nothing is cross-examined to P.W.1 to prove that the defendant has not obstructed and made a interference to the plaintiff peaceful possession and enjoyment of suit schedule property. When being the situation of the plaintiff case regarding the obstruction of the defendant as above discussed and which is not disproved by the 14 O.S. No.26366/2010 defendant there is no any chance to discard the allegations made out by the plaintiff against the defendant regarding interference as alleged in the plaint. For the all above discussed reasons, I came to conclusion that the very not making cross-examination to the P.W.1 regarding the interference and the contention taken in WS against the plaintiff regarding the suit property are clearly disclosing that there is a obstruction and interference caused by the defendant against the plaintiff relating to the peaceful possession and enjoyment of plaintiff over the suit schedule property. Hence, I would like to answer issue No.2 also in favour of the plaintiff as a Affirmative.
14. ISSUE No.3: In view of the findings given to the issue No.1 and 2, I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby decreed without costs.
The defendant or her supporters, heirs, agents or anybody claiming through her or under her are hereby permanently restrained from causing interference with the plaintiff's peaceful 15 O.S. No.26366/2010 possession and enjoyment of suit schedule property.
Advocate fee is fixed at Rs.1,000/-.
Draw the decree accordingly.
(Dictated to the Stenographer on online computer, thereof corrected and then pronounced by me in the open court on this the 23rd day of April, 2016).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witness examined for the plaintiff:
P.W.1 - Sri.B.Purushotham.
List of documents exhibited for the plaintiff:
Ex.P.1 - GPA executed by Satish Balaram
Ex.P.2 - Sale deed dated 22.01.2010
Ex.P.3 - Nil encumbrance certificate
Ex.P.4 - Tax paid receipt
Ex.P.5 - Khatha certificate
Ex.P.6 - Khatha extract
Ex.P.7 to 13 - Photographs
Ex.P.14 - CD
Ex.P.15 - Sy. sketch map
Ex.P.16 - Complaint given to the police station
Ex.P.17 - Endorsement given by the police.
16 O.S. No.26366/2010
List of witness examined for the defendant:
-NIL-
List of document exhibited for the defendant:
-NIL-
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.17 O.S. No.26366/2010