Bangalore District Court
Smt.Elizabeth vs Sri.Prabhu Kumar on 30 August, 2019
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH-74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (SPl.,)
LXXIII ADDL.CITY CIVIL & SESSIONS JUDGE
Dated this the 30th day of August, 2019.
O.S. No.25616/2014
Plaintiff: Smt.Elizabeth,
W/o.Late.Sri.Kamal
Kannan, aged about 70
yrs, R/at.Old No.64 and
New No.168, Rudrappa
Garden, Viveknagar Post,
Bengaluru-560047.
(By Sri.Syed Khaleel Pasha - Adv.)
V/S
Defendants: 1. Sri.Prabhu Kumar,
S/o.Late.Sri.Kamal
Kannan, aged about 48
yrs,
2. Sri.Ramesh Kumar,
S/o.Late.Sri.Kamal
Kannan, aged about 46
yrs,
2 O.S. No.25616/2014
3. Sri.Rajendra Kumar,
S/o.Late.Sri.Kamal
Kannan, aged about 42
yrs,
4. Smt.Beena,
W/o.Sri.Rajendra Kumar,
aged about 35 yrs,
1 to 4 are R/at.Old No.64
and New No.168,
Rudrappa Garden,
Viveknagar Post,
Bengaluru-560047.
(By Sri.Bhaktavachala - Adv. for deft.No.1)
(By Sri.V.Prakash - Adv. for defts.No.2 to 4)
Date of Institution of the suit 19.04.2014
Nature of the (Suit or pro-
note, suit for declaration
Injunction Suit
and possession, suit for
injunction, etc.)
Date of the commencement of
22.03.2018
recording of the Evidence.
Date on which the Judgment
30.08.2019
was pronounced.
Year/s Month/s Day/s
Total duration 05 04 11
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH-74)
3 O.S. No.25616/2014
JUDGMENT
The plaintiff has filed this suit for permanent injunction restraining the defendants and their agents from entering into suit schedule property, from alienating, encumbering, mortgaging or creating any charge over the suit schedule property.
2. Brief facts of the plaintiff's case:
It is the case of the plaintiff that plaintiff's husband was the absolute owner and in possession of the suit property by virtue of registered sale deed.
3. Further contended in the plaint that originally suit property was belongs to one N.C.Dorailingam Pillai, he sold the suit property to Thayanayagi Ammal and Marimuthu Ammal, they acquired their right, title over the suit property by virtue of registered sale deed dated 25.6.1952. On 11.4.1953 Thayanayagi Ammal and Marimuthu Ammal have sold the property in question in favour of B.N.Muniswamy S/o.Narayanaswamy, under registered sale deed dated 4 O.S. No.25616/2014 11.4.1953, the said N.Muniswamy is the father-in-law of plaintiff. The plaintiff's husband is the only son of B.N.Muniswamy who inherited the same from his father and he was absolute owner and in possession of the suit property. Khatha in respect of suit property was entered in the name of plaintiff's husband. On 15.1.1991 the plaintiff's husband died; after his death the plaintiff become absolute owner of the suit property, the plaintiff is paying tax in respect of suit property to the competent authority. On 25.5.1994 the plaintiff has executed a Will in favour of her children in respect of suit schedule property. Further plaintiff contended that she had 9 children, 5 daughters and 4 sons, after death of her husband plaintiff has provided basic amenities to her children and performed their marriage, plaintiff's daughter Kalpana staying with plaintiff in the suit schedule property. Defendants No.1 to 3 are alcoholic, used to come to house and picking up quarrel with plaintiff 5 O.S. No.25616/2014 and gave a threat of dispossession and creating a third party rights over the suit property. Defendant No.1 to 3 are used to harass the plaintiff. On account of which plaintiff had lodged the complaint and filed this suit for necessary relief sought in the plaint.
4. Initially defendants No.1 to 4 are placed exparte, thereafter defendants No.1 and 2 and 4 have filed necessary application for set asiding the exparte order and same was set aside and permitted them to appear and contest the matter. After appearance of defendant No.1, 2 and 4 through their counsel the defendants have not filed any written statement.
5. Plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.13 and closed her side evidence. Cross of P.W.1 by defendants No.2 & 4 taken as Nil and the learned counsel for the defendant No.1 cross-examined P.W.1 and cross of P.W.1 by defendant No.3 was taken as Nil.
6 O.S. No.25616/2014
6. Heard the argument of the learned counsel for the plaintiff. I have perused pleading and oral, documentary evidence. On perusal of the same the points that would arise for my consideration are as follows:-
1. Whether plaintiff proves that she is in possession of the suit schedule property at the time of filing of the suit?
2. Whether plaintiff proves that the defendants have interfered in the peaceful possession and enjoyment of the suit schedule property?
3. Whether the plaintiff is entitled for the relief sought in the plaint?
4. What order or decree?
7. My answer to the above points are as follows:-
Point No.1: In the Affirmative, Point No.2: In the Affirmative, Point No.3: In the Affirmative, Point No.4: As per final order, for the following:-7 O.S. No.25616/2014
REASONS
8. POINT No.1: In order to prove her case plaintiff is examined as PW.1 and got marked Ex.P.1 to P.13. It is the case of the plaintiff that she is the absolute owner and in possession of the suit property after death of her husband. The defendants, though the plaintiff has provided all the necessary amenities to her children and performed their marriage. But, defendants with an intention to harass the plaintiff used to give threat of dispossession and taking quarrel with her by abusing in a filthy language and give a threat to alienate the suit property and creating third party rights over the suit property. On account of which the plaintiff had lodged the complaint against the defendants for preventing them from the interference. In support of her oral evidence plaintiff has produced 13 documents which have been marked at Ex.P.1 to P.13. Ex.P.1 is the registered sale deed of plaintiff's husband's vendor and Ex.P.2 is the 8 O.S. No.25616/2014 registered sale deed executed by the plaintiff vendor in favour of the plaintiff in respect of suit schedule property for valuable consideration and Ex.P.3 is the endorsement issued by the Corporation of the City of Bengaluru to the plaintiff in respect of suit schedule property. Ex.P.4 is the khatha certificate issued by the Corporation of the City of Bengaluru to the plaintiff in respect of suit schedule property and Ex.P.5 is the encumbrance certificate for the period from 1.4.2004 to 28.12.2017 and Ex.P.6 to P.9 are the tax-paid receipts paid by the plaintiff in respect of suit schedule property and Ex.P.10 is the death certificate of Udaya Kumar. Ex.P.11 is the complaint lodged by the plaintiff against the defendants before the Additional Commissioner. Ex.P.12 is the Aadhaar card of plaintiff. Ex.P.13 is the death certificate of Kamala Kannan
9. I have perused Ex.P.1 registered sale deed, which clearly establishes that on the date of purchase 9 O.S. No.25616/2014 of suit schedule property by the plaintiff's husband, his vendor was an absolute owner and in possession of the suit schedule property. And Ex.P.2 is the registered sale deed stands in the name of the husband of plaintiff. I have perused the Ex.P.2 it clearly shows that the plaintiff's husband had purchased the suit property under registered sale deed during his lifetime he was in a peaceful possession and enjoyment of the suit schedule property. After death of her husband plaintiff become owner and possessing and enjoyment of the suit schedule property. Ex.P.3, P.4 and P.5 are the revenue records stands in the name of plaintiff after death of her husband. Ex.P.6 to P.9 are the tax-paid receipts, paid by the plaintiff to the competent authority in respect of suit schedule property. Ex.P.10 is the death certificate of Udaya Kumar who is son of plaintiff. Ex.P.11 is the complaint lodged by the plaintiff against the defendants. I have perused the Ex.P.11 it is seen that 10 O.S. No.25616/2014 the plaintiff has lodged the complaint against the defendants for their harassment and threat. Ex.P.12 is the notarized copy of Aadhaar card of the plaintiff. Ex.P.13 is the death certificate of Kamala Kannan who is husband of plaintiff.
10. Though the defendants No.2 and 4 are appeared through their counsel; but they did not file their written statement and they did not cross- examined P.W.1. Hence, the oral and documentary evidence led by the plaintiff to prove her case remained unchallenged.
11. On perusal of the Ex.P.1 & P.2 original sale deeds and Ex.P.3 to P.13 revenue entries, it is clearly shows that the plaintiff is in possession and enjoyment of the suit schedule property at the time of filing of the suit. Ex.P.3 to Ex.P.13 are the revenue entries which got evidentiary value under Section 35 of the Indian Evidence Act which reads thus:
11 O.S. No.25616/2014
35. Relevancy of entry in public [record or an electronic record] made in performance of duty.__ An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.
Editor's Note._The words "Fact", "Facts in issue" and 'Relevant" are defined in Section 3 of this Act.
12. In support of my opinion I relied on the decision reported in ILR 2004 KAR.1074 in case of Naganna Vs. Shivanna. The lordships have held at Head note B. thus:
12 O.S. No.25616/2014
REBUTTAL EVIDENCE - entries in the ROR carries presumptive value in law - if there is no convincing evidence to rebut the legal presumption, lessor relief of injunction can be granted. But the declaration title cannot be granted.
13. Further relied on decision reported in AIR 2008 SC 901 in case of Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and Others. The lordships have held at Head note B. reads thus:
Evidence Act, (1 of 1872), Ss. 35, 114- revenue records- not document of title- it merely raises presumption of possession. The lordships have discussed at Para 12 of the judgment, which reads thus:
A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of 13 O.S. No.25616/2014 possession and/or continuity thereof both forward and backward can also be raised under Section 114 of the Indian Evidence Act. The Courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind.
The oral and documentary evidence led by the plaintiff remained unchallenged. The defendant No.1 has not filed written statement; but, he has cross-examined P.W.1. On perusal of the deposition of P.W.1 it is admitted that defendants are her son and daughters. It is also admitted that the suit property was purchased by her husband. On this admission it is clear that the defendants are also joint owner of the suit schedule property. Now the question is whether the injunction can be granted against the joint owner of the suit property. Under the facts and circumstances of the case, the plaintiff being old aged 14 O.S. No.25616/2014 mother of defendants and she has clearly deposed before the court that the defendant No.1 are trying to dispossess the plaintiff from the suit schedule property and interfering in peaceful possession and enjoyment of the suit property. Further the plaintiff specifically deposed that the defendants are tried to dispossess the plaintiff from the suit property and tried to ousted the plaintiff from suit schedule property and made her deprived from the use and enjoyment of the suit schedule property. When both plaintiff and defendants have admitted their relationship and it can be safely held on perusal of facts and circumstances of the case that the plaintiff and defendants are joint owners of the suit property. Under such circumstances, the defendants may be restrained from dispossessing the plaintiff and use and enjoyment of the suit schedule property along with joint owners.
14. So, on perusal of the oral and documentary evidence of plaintiff and relying on the decision 15 O.S. No.25616/2014 referred above I am of the firm opinion that plaintiff has proved his possession of the suit schedule property at the time of filing of this suit with a cogent evidence. Hence, I answer this point in the Affirmative.
15. POINT No.2: It is the case of the plaintiff that her husband has purchased the suit schedule property for the valuable consideration amount under registered sale deed and all the revenue records, in respect of suit schedule property have changed in the name of plaintiff and plaintiff is in possession and enjoyment of the suit schedule property by virtue of registered sale deed. Such being the fact the defendants tried to interfere with the plaintiff's possession and enjoyment of the suit property and gave a threat to the plaintiff for dispossessing her from the suit schedule property.
16. It is admitted fact that defendants are the sons of plaintiff and deceased Kamala Kannan and it is 16 O.S. No.25616/2014 also not in dispute that the suit schedule property has been purchased by the deceased husband of plaintiff and father of defendants. But, the case of the plaintiff is that she is in exclusive possession of the suit schedule property after the death of her husband. When plaintiff admitted that defendants are her sons and daughter and it is also admitted fact that the suit property was purchased by the deceased husband of the plaintiff; i.e., father of the defendants. Under such circumstances, it can be safely held that both plaintiff and defendants are joint owners of the suit property and further it is not the case of the plaintiff that the suit property is herself acquired property as it could be seen from the case of the plaintiff; but, still plaintiff is entitled to protect her possession. And it is also clear from the Ex.P.11 which is complaint lodged by the plaintiff before the concerned police authority for necessary action against the defendants for harassing the plaintiff and for giving threat to dispossess the 17 O.S. No.25616/2014 plaintiff from the suit schedule property. When defendants have not filed written statement and they have not denied the threat of dispossession of the plaintiff from the suit schedule property. So under such circumstances injunction can be granted against the defendants for the limited purpose to protect the possession and enjoyment of the suit property. Further defendants are to be restrained from dispossessing the plaintiff. Considering the oral and documentary evidence; i.e., Ex.P.11 it is seen that the defendants have threatened the plaintiff to dispossess her from the suit schedule property. It is also clear that the defendants have interfered in the possession of suit schedule property. When plaintiff is proved the possession and interference and possession is being threatened by the defendant and under such circumstances plaintiff is entitle for the relief of injunction, restraining the defendant from dispossessing the plaintiff.
18 O.S. No.25616/2014
17. The oral evidence of the plaintiff is remained unchallenged and establishes that the defendants have interfered in the possession of the plaintiff and the act of defendants clearly shows that the possession of the plaintiff is under threat by the defendants. And all the documents produced by the plaintiff are clearly shows that plaintiff is in possession and enjoyment of the suit schedule property. Under such circumstances, I am of the opinion that the plaintiff has proved the interference of the defendants in her peaceful possession and enjoyment of the property. Hence, I answer this point in the Affirmative.
18. POINT No.3: It is the case of the plaintiff that she is owner and in possession and enjoyment of the suit schedule property. In support of her case the plaintiff has produced Ex.P.1, which is registered original sale deed, executed by the vendors of the plaintiff's husband in respect of suit schedule property in favour of the plaintiff. Since then plaintiff is in 19 O.S. No.25616/2014 possession and enjoyment of the suit schedule property. Ex.P.3 to Ex.P.12 are the revenue records such as tax-paid receipts, EC, etc. These documents clearly establishes the possession of the plaintiff. When plaintiff is in lawful possession of suit property and said possession is interfered or threatened by the defendants, under such circumstances I am of the opinion that the plaintiff is entitled to protect her possession. On the admitted fact of relationship between plaintiff and defendant it is clear that both plaintiff and defendants are the joint owners but injunction can be granted restraining the defendants from dispossessing the plaintiff from the suit schedule property so under such circumstances ouster is to be protected. In support of my opinion I relied on the judgment passed by the Hon'ble High court of Himachal Pradesh in case of Ashok kapoor Vs. Murthu Devi, on 24-06-2015.
20 O.S. No.25616/2014
Further I relied on the decision reported in AIR 2008 SC 2033 in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
The lordships have held in the decision thus:
Where Plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant a suit for an injunction simpliciter will lie.
19. Looking to the facts and circumstances of the case and relying on the decision referred above I hold that plaintiff has proved her possession and interference with cogent evidence. Plaintiff is entitle for restrain the defendants from dispossessing the suit property. Hence, I answer this point in the Partly Affirmative.
20. POINT No.4: In view of the discussion made on points No.1 to 3, I proceed to following:- 21 O.S. No.25616/2014
ORDER The suit filed by the plaintiff is hereby partly decreed. Consequently, the defendants and their agents are hereby restrained by order of injunction from alienating, encumbering, mortgaging and creating charge over the suit schedule property.
Further defendants and their agents are restrained from dispossessing the plaintiff from suit schedule property. Further it is ordered that defendants are at liberty to agitate their right over the suit property.
No order as to costs.22 O.S. No.25616/2014
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 30th day of August, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH-74) SUIT SCHEDULE PROPERTY All that piece and parcel of the property bearing No.168, 169, 170, 171 and 171/1 in O.R.C. II Main Road, Rudrappa Garden, now known as No.168, 2nd Main Road, Old Race Course Road, Austin Town, Bengaluru, measuring North 56 ¾ ft + 5 ½ ft., South 56 ¾ ft + 5 ½ ft., East 29 ¾ feet and West 19 + 10 ¾ feet and bounded on the:
East by: Road;
West by: Sri.Dorailingam;
North by: Sri.Curley's house; and on South by: Municipal Land.
ANNEXURE List of witness examined for the plaintiff's side:
P.W.1 - Smt.Elizabeth List of documents exhibited for the plaintiff's side:
Ex.P.1 & 2 - 2 Sale deeds
23 O.S. No.25616/2014
Ex.P.3 - Khata endorsement
Ex.P.4 - Notice issued by Bengaluru City
Corporation
Ex.P.5 - Encumbrance certificate
Ex.P.6 to 9 - 4 Challans for having paid tax to BBMP Ex.P.10 - Death certificate of Udaya Kumar Ex.P.11 - Copy of complaint given by plaintiff to the Addl.
Commissioner, Bengaluru.
Ex.P.12 - Attested true copy of Aadhaar Card Ex.P.13 - Original death certificate of plaintiff's husband Kamala Kannan List of witness examined for the defendants' side :
-NIL-
List of document exhibited for the defendants' side:
-NIL-
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru.(CCH-74) 24 O.S. No.25616/2014