Bangalore District Court
Sri.Ananda Rao.M vs Sri.G.Jayananda Raju on 23 June, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 23rd DAY OF JUNE 2015
O.S.No.5024/2010
Plaintiff: Sri.Ananda Rao.M
Aged about 41 years
s/o.V.Munoji Rao,
residing at No.19,
20th Main Road,
19th cross, 5th Phase,
J.P.Nagar,
Bangalore-560070.
(By M/s.K.T.Dakappa &
Associates- Advocates)
-vs-
Defendant: Sri.G.Jayananda Raju
Major in age,
Father's name not
known to plaintiff
Residing at Khatha
No. 501,
Khaneshumari
No.95/2, Gramathana
of Puttenahalli village,
2 O.S.No.5024/2010
Uttarahalli Hobli,
Bangalore South Taluk.
(By Sri. R.N.Narasimha-
Advocate)
Date of Institution of the suit : 21/07/2010
Nature of the suit : Declaration & possession
Date of commencement of
recording of the evidence : 13/07/20111
Date on which the Judgment was
pronounced : 23/06/2015
Total Duration Years Months Days
: 04 09 02
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
J U D G M E N T
This suit is filed by the plaintiff for declaration that the defendant's possession on the suit schedule property is unauthorised and to pass a decree to deliver back the possession of the schedule property to the plaintiff by putting the plaintiff in possession of the same by removing 3 O.S.No.5024/2010 the unauthorised construction and also to direct to pay damages at the rate of Rs.3000/- p.m. from the date of suit, to the date of delivery of possession of the suit schedule property.
2. The case of the plaintiff is that the plaintiff is the absolute owner of the property No.501, Khaneshumari No.95/2, situated at Gramathana of Puttenahalli village, Uttarahalli Hobli, Bengaluru South Taluk now within the limits of BBMP Puttenahalli, measuring East to West: 40 ft. and North to South: 30 ft. which is fully described in the schedule annexed to the plaint. The plaintiff purchased the suit schedule property from his previous owner Smt.Sudha under a registered Sale Deed dated.13.12.2004. The vendor of the plaintiff purchased the suit schedule property from one Smt.Ammayamma under a registered Sale Deed dated.16.2.1983. During the period of purchase, portion of property measuring 10 x 10 feet was under the unauthorised occupation of the defendant. The defendant who encroached the 4 O.S.No.5024/2010 said portion had agreed to vacate and deliver vacant possession of the plaintiff. The defendant however after the purchase, taking advantage of the plaintiff being at a distance, encroached the remaining portion and put up unauthorised construction during the later part of 2008 and squatting on the suit property inspite of order of injunction against the defendant in a suit filed by the vendor of the defendant. The plaintiff on coming to know of the said unauthorised construction questioned the defendant in the presence of well wisher, at that time the defendant promised to remove the unauthorised construction by making alternate arrangement and provided some time is given. In the month of January 2009 the plaintiff with such promise waited for all these time, the defendant to vacate and handover the vacant possession but the defendant inspite of sufficient time, failed to deliver the possession to the plaintiff.
3. The plaintiff further submitted that the defendant has no right, title or interest over the suit property. The 5 O.S.No.5024/2010 defendant is a mere trespasser and having trespassed on the suit schedule property, put up AC sheet house on the suit schedule property without the permission and authority of the plaintiff. During 1995, the defendant made such an attempt on the schedule property and accordingly plaintiff's vendor filed a suit against the defendant . when the suit was pending the defendant encroached 10 x 10 ft. and constructed AC sheet shed for which the plaintiff's vendor sought for mandatory injunction in O.S.No.8224/1995 which was decreed, declaring that the plaintiff's vendor was the owner and further granted the permanent injunction against the defendant not to interfere with the peaceful possession and enjoyment of the suit schedule property. The said decree is still binding on the defendant. Thus the defendant has to remove the unauthorised and deliver back the suit schedule property to the plaintiff. The defendant is liable to pay damages at the rate of Rs.3000/- p.m. Hence the 6 O.S.No.5024/2010 plaintiff has constrained to file the suit for declaration, possession and damages.
4. In response to the suit summons, the defendant has appeared through his learned counsel and resisted the claim of the plaintiff by filing his written statement. The defendant has denied each and every allegation made in the plaint as false. It is specifically denied that the plaintiff is the absolute owner of the property as described in the schedule as he purchased the same through his vendor- Sudha for sale consideration through Sale Deed dated.13.4.2004. It is also denied during the period of purchase the defendant was in unauthorised occupation of the property measuring 10 x 10 ft. and agreed to vacate the same and deliver the vacant possession to the plaintiff and the defendant taking undue advantage of the fact that the plaintiff is residing at distance encroached the remaining portion and put up unauthorised construction during the later part of 2008 etc., It is also denied that the plaintiff questioned the defendant 7 O.S.No.5024/2010 regarding unauthorised construction in the presence of well- wishers and the defendant promised to remove the unauthorised construction by making alternative arrangements etc., but the defendant without having any right, title or interest having trespassed the schedule property, put up unauthorised construction. The vendor of the plaintiff filed suit against the defendant. It is further denied that during the year 1985, the defendant made such an attempt on the schedule property and the plaintiff's vendor filed a suit against the defendant and when the suit was pending, the defendant encroached upon the said portion and constructed unauthorised building and the said suit in O.S.No.8224/95 is decreed etc. The defendant also denied that he is liable to pay damages in a sum of Rs.3000/- p.m. to the plaintiff.
5. The defendant has further pleaded that as a matter of fact, he is the absolute owner in possession and enjoyment of the property bearing Khaneshumari No.95/2, Puttenahalli Village, 8 O.S.No.5024/2010 Uttarahalli Hobli, Bengaluru South Taluk as described in the schedule to the plaint. The defendant has purchased the suit property from his vendor under the Agreement dated.19.10.1993 after paying advance of Rs.35,000/- on the date of the Agreement and the balance sale consideration of Rs.70,000/- was paid on 26.10.1993 totally a sum of Rs.1,05,000/-. The vendor of the defendant after reviving the entire sale consideration of Rs.1, 05,000/- has also executed an affidavit by acknowledging the receipt of a sum of Rs.1,05,000/- and handed over the vacant possession of the suit schedule property. Besides, the deceased vendor of the defendant has also executed a GPA dated.26.10.1993 in respect of the schedule property in favour of the defendant. The defendant has already paid the entire sale consideration to his vendor and nothing has to be paid towards the sale consideration. Since 26.10.1993 the defendant is in lawful possession and enjoyment of the schedule property as full and absolute owner thereon after putting up the residential 9 O.S.No.5024/2010 constructions and getting the connection from KEB. There is no cause of action to file the suit. The suit is bad for non-joinder of necessary parties. There is no merit in the suit. Therefore, it is prayed to dismiss the suit with exemplory costs.
6. On the basis of the pleadings of both the parties, issues came to be framed on 17.2.2011. Thereafter the issues have been recasted on 14.8.2014 as reproduced below:-
ISSUES
1. Whether the plaintiff proves the possession of the defendant over the suit property is unauthorised?
2. Whether the plaintiff is entitled to recover the possession of the suit property from the defendant by removing the unauthorised construction made thereon?
3. Whether the plaintiff is entitled to recover damages at the rate of Rs.3000/- p.m. from the date of suit, to the date of delivery of possession of suit property?10 O.S.No.5024/2010
4. Whether the suit of the plaintiff is maintainable in the present form?
5. What order or decree?
7. The plaintiff in order to substantiate his claim, has got examined himself as P.W.1 and one supporting witness as P.W.2 and adduced documentary evidence from Ex.P1 to P.W.23. Meanwhile the defendant is examined as D.W.1 and got marked Ex.D1 to D18. I have heard the counsel for both parties. Besides, the counsel for the defendant has submitted synopsis in support of his arguments.
8. My findings on the above said issues are as under:
Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: In the Negative Issue No.4: In the Affirmative Issue No.5: As per final order for the following:-
/REASONS/
9. Issue No.1:- The plaintiff being the absolute owner is field this suit for declaration that the possession of the 11 O.S.No.5024/2010 defendant over the suit schedule property is unauthorised and consequently directing the defendant to deliver back the possession of the suit schedule property with damages @ Rs.3000/- p.m. from the date of suit, till delivery of possession of the suit schedule property to the plaintiff. The defendant has not only denied the ownership of the plaintiff over the suit property, but also pleaded that he is the absolute owner in peaceful possession and enjoyment of the suit schedule property. The plaintiff is relying on oral evidence of P.W.1 coupled with documentary evidence on record in support of his claim.
10. P.W.1 has reiterated the averments made in the plaint during course of his examination-in-chief. It is evident from the cross-examination of P.W.1 that the plaintiff came into contact with his vendor Smt.Sudha one year prior to purchase of property through agents Mr.Anand, Nataraj and N.Shankar. The plaintiff has verified all the records prior to purchase of the property i.e., the Sale Deed executed by Mr.Thammaiah in favour of his vendor. 12 O.S.No.5024/2010 But he does not know in which Survey Number the suit property was situated and how Mr.Thammaiah acquired the property. It is also not known to plaintiff that the suit property is part and parcel of Sy.No.52/3 of Puttenahalli village and if an area of 1 Acre 36 Guntas in Sy.No.52/3 was earlier owned by Mr.Kodandarama Reddy who sold the said land on 16.2.1970 in favour of Lingappa. P.W.1 has also shown his ignorance about the fact that Lingappa sold the said land in favour of Subbaraju on 12.3.1981 and that Subbaraju formed a layout and sold a site measuring 60x40 ft. in favour of Syed Amdulla Azeez on 21.11.1983 and in view of prohibition of sale of revenue sites, Subbaraju described the sites sold in favour of Syed Amdulla Azeez as khaneshumari No.95/2 and ultimately, the said Syed Amdulla Azeez sold the said site in favour of Mr.Dayananda Raju on 11.10.1990. Even then, P.W.1 has denied that on 26.10.1993, the said Dayananda Raju sold the said site in favour of defendant through sale Agreement having received the entire sale 13 O.S.No.5024/2010 consideration amount. P.W.1 has shown his ignorance about the GPA and affidavit executed by Mr.Dayananda Raju in favour of the defendant. Admittedly P.W.1 during his spot visit came to know that the defendant is residing in the suit property by constructed a house. The plaintiff has not enquired with anybody regarding pendency of suit in respect of suit schedule property except his vendor. P.W.1 does not know whether the defendant has obtained a decree in an injunction suit against Mr.Dayananda Raju. Though P.W.1 has verified the plaint, written statement, Judgment & Decree passed in O.S.No.8224/1995, yet he does not know whether the said decree is an exparte decree. The plaintiff did not make enquiry whether the present defendant had field petition for setting aside exparte decree at the time of his purchase and Misc.Case No.905/2005 filed by the defendants against his vendor was allowed and O.S.No.8224/1995 was restored and subsequently it was dismissed for non-prosecution. 14 O.S.No.5024/2010
It is evident from the further cross-examination of P.W.1 that one Jayaraju executed Sale Deed at Ex.P20 in favour of Vishwanath Badiger in respect of site No.72, but P.W.1 cannot say the Survey Number in which the said site is situated. Even then it is denied that Sy.No.52/2B of Puttenahalli is now within the limits of J.P.Nagar, Bengaluru. Infact, P.W.1 is not certain about the correctness of the Survey Number mentioned in Ex.P20. According to P.W.1, the suit property is in Sy.No.52/A of Puttenahalli. P.W.1 does not know whether the suit property is in Sy.No.52/3 as suggested to him by the counsel for the defendant. Likewise, one Thammaiah executed Sale Deed as per Ex.P21 in favour of one Jeevarathna in respect of Khaneshumari No.93/7 but he does not know survey number in which Khaneshumari No.93/7 is situated and previous owner of the same. The Sale deed at Ex.P.22 is executed by one Ambujamma in favour of Srivalli Yogesh in respect of Site No.73 and 74 but, he does not know the owner of site No74 which is situated in 3rd main, 15 O.S.No.5024/2010 J.P.Ngaar. The Gift Deed at Ex.P23 is executed by Purushotham Raju in favour of V.R.Mukunda in respect of khatha No1148. P.W.1 does not know who was the original owner of Sy.No.52/2A and how that Purushotham acquired that property.
11. P.W.2 Shankar one of the agents has been introduced to the plaintiff to Smt. Sudha. As deposed by P.W.2, he has shown the schedule property to P.W.1 at his request. On that day, portion measuring 10x10 ft. was under the unauthorised occupation. The plaintiff approached the defendant along with him and others and enquired about the possession of the defendant and also intimated about his intention to purchase of the schedule property. The defendant had agreed to deliver back the possession if time is granted. Whereas it is established from the cross-examination of P.W.2 that he is doing real estate business since 2000. Prior to it, he was residing in J.P.Nagar 5th phase. The schedule property is at the distance of half a kilometer from his residence. He knows the defendant since 16 O.S.No.5024/2010 2004 and he came to know the plaintiff since 2001. The plaintiff was introduced by his friend Mr.Babu. Smt.Sudha was the erstwhile owner of the schedule property. One Mr.Anjanappa had told P.W.2 that Smt.Sudha would be selling the site and he introduced her to him in the year 2004. She had given only the Sale Deed to P.W.2 for verification, but he does not know how Smt.Sudha acquired the property mentioned in her Sale Deed. P.W.2 has not verified about survey number of the property of Smt.Sudha. Even P.W.2 does not know how Smt.Sudha acquired the property mentioned in her sale deed. P.W.2 has not verified about Sy.Number in which the property of Smt.Sudha was situated. Even P.W.2 does not know in which Sy.Number the suit property is situated either in Sy.No.52/3 or otherwise. P.W.2 also shown his ignorance about Sy.No.52/3 measuring 1 acre 36 guntas and it was owned by Kodandarama Reddy who sold it to Lingappa on 16.2.1970, who in turn sold it in favour of Subbraju on 12.3.1981 and that Mr.Subbraju sold an area of 2400 Sq.ft. in 17 O.S.No.5024/2010 favour of Syed Amadulla Aziz on 24.11.1983. It is also not known to P.W.2 whether Syed Amadulla Aziz sold the same by putting Khaneshumari No.95/2 in favour of Dayananda Raju on 11.10.1990 and then the said site was sold by Dayananda Raju in favour of the defendant on 26.10.1993 by executing General Power of Attorney and sale agreement and received entire sale consideration amount. According to P.W.2, property of Smt.Sudha and suit property are one and the same. The defendant and his family members were in occupation of the above small house when Smt.Sudha had shown it to him.
12. On the other hand, the defendant is relying on his own oral testimony with documentary evidence on record in support of his defence. D.W.1 has reproduced the written statement in the course of his examination-in-chief by way of an affidavit. . It is elicited from the cross-examination of D.W.1 that he knows the suit property and it bears khaneshumari No.92/2 in Sy.No.53/3 of Puttenahalli. The Suit property is not registered in his name, but 18 O.S.No.5024/2010 he has been paying the taxes. The khatha or mutation has not been done in his name. He has got a sale agreement for an extent of 60 X 40 ft. and the suit has been filed for an extent of 30 X 40 ft. A suit was filed in respect of remaining 30 X 40 ft by somebody and it has been decreed in his favour. According to D.W.1, he has obtained stay from the Hon'ble High Court but he does not remember the case number pending in High Court. Even then, D.W.1 has denied that in the above remaining area of 30 X 40 ft, house has been constructed. Further D.W.1 has not issued any notice against his vendor for execution of the sale deed as his vendor has executed general power of attorney in his favour. The vendor of the defendant died in the year 1990 and thus no sale deed was executed. The sale agreement was prepared on the basis of the sale deed standing in the name of Mr.Dayananda Raju. But he does not remember when the balance amount of Rs.70,000/- was to be paid. At the time of execution of general power of attorney, the original title deeds were taken. The original of 19 O.S.No.5024/2010 Ex.D.1 to Ex.D4 are in the High Court but he does not know from where he has obtained certified copies of Ex.D2 to Ex.D4. D.W.1 has admitted that he has filed O.S.No.2252/1995 against Mr. Sayed Amdul Azeez and Mr.Dayananda Raju in respect of the suit schedule property and the remaining area. D.W.1 has denied that the said suit came to be dismissed. Infact, D.W.1 does not know about the suit in between his vendor and vendor's vendor. D.W.1 on confrontation of Ex.D.2 has admitted the signatures of Mr.R.Dayananda Raju marked as Ex.D.2(a) and Ex.D.2(b). D.W.1 has not only denied that Ex.D.2(a) and Ex.D.2(b) are not the signatures of Mr.R.Dayananda Raju but also that Ex.D.3 and Ex.D.4 do not bear the signatures of Mr.R.Dayananda Raju.
13. It is evident from further cross-examination of D.W.1 that, he does not know the boundaries of the agreement property which is situated in Sy.No.52/3 of Puttenahalli village. The boundaries as shown in Ex.D2 are correct. D.W.1 does not know whether site Nos. 180, 182 etc., are not formed in the said survey 20 O.S.No.5024/2010 No.52/3. But the vendor of the defendant had purchased the property from Mr.Sayed Amdul Azeez. D.W.1 does not know whether Mr.Sayed Amdul Azeez had filed O.S.No.6421/1995 against him and others for rectification of site number and declaration. D.W.1 has also shown his ignorance about the fact of cancellation of sale deed dt.17.01.1991 was executed between his vendor and his vendor's vendor i.e., Mr.Sayed Amdul Azeez after receiving entire consideration amount. However, D.W.1 has denied that the property claimed by him is not in existence either in Sy.No.52/3 or in Sy.No.52/B.
14. It reveals from further cross-examination of D.W.1 that, Mr. Subbaraju obtained general power of attorney from Mr. Lingappa in respect of 1Acre 36 Guntas in Sy.No.52/3 and converted it into residential sites. There is no mention of survey number in Ex.D.2 to Ex.D.4. D.W.1 does not know the residential address of Smt.Sudha and the number of site purchased by Smt. Sudha. The said O.S.No.8224/1995 was dismissed for default. It 21 O.S.No.5024/2010 is also not known to D.W.1 whether Smt. Sudha had sold the property when he filed Miscellaneous No.903/2004 and when it was restored. However it is admitted that, Ex.D.2 to Ex.D.4 do not disclose site No.71 and 72. Though D.W.1 has got a map to show that site Nos. 71 and 72 are assigned khaneshumari No.95/2, yet he has not produced that piece of documentary evidence. Even then, it is denied that he and Mr.Dayananda Raju are unconnected with site Nos. 71 and 72. According to D.W.1, he has constructed a sheet roofed house in an area of 30 X 40 ft. Property of Ambujamma i.e., RCC building is situated towards south of the said property. As deposed by D.W.1, the site numbers of suit properties are 71 and 72 at present, but he does not know the numbers of sites bounded by the property in his occupation. Even D.W.1 has failed to narrate the boundaries of the suit property alleged to be in his possession. The defendant is admittedly the Agreement holder of the property sold by Subbaraju under Ex.D.18. The site number is 22 O.S.No.5024/2010 surrounded by site No.72 to the suit property as described in the suit schedule by the plaintiff. Though one Ambujamma is in possession of site No.24 yet, he does not know whether the said Ambujamma purchased that site from Vishwanath Badiger.
15. On analysing the evidence adduced by both the parties on record, it is established that the plaintiff has purchased the vacant site bearing khaneshumari No.95/2, situated at gramathana of Puttenahalli village, Uttarahalli Hobli, Bengaluru South Taluk, within the limits of Bengaluru City Municipal Council measuring East to West: 40ft. and North to South: 30 ft. bounded by East: site No.96/2, West by: 25 ft. wide road, North by: site No.93-7 and South by: site No.72 from the erstwhile owner Smt.Sudha w/o. Sri.Padmarajaiah through registered Sale Deed dated.13.12.2004 at Ex.P1. There is no reference in the schedule regarding the A.C. sheet roofed shed in the Sale Deed as described in the schedule annexed to the plaint. Whereas the plaintiff has claimed the suit schedule 23 O.S.No.5024/2010 property under the said registered Sale Deed. Ex.P2-the registered Sale Deed dated.16.2.1983 denotes that the vendors of the plaintiff Smt.Sudha purchased the same property from Sri.Thammaiah. Besides, the Encumbrance Certificates for the period from 1.4.1984 to 3.2.2007 disclose the sale transactions between Thammaiah and Smt.Sudha and also between Sudha and plaintiff in respect of the same site as described in the suit schedule as it is evident from Ex.P3 to Ex.P9. Ex.P10 the extract of tax demand register discloses that the vendor of the plaintiff was owner/occupant of property No.95/2 measuring 30x40ft. open site as per Ex.P11 to Ex.P18. Ex.P19 the certified copy of Judgment & Decree passed in O.S.No.8224/1995 discloses that the vendor of the plaintiff field the said suit for permanent injunction against defendant G.Jayanandaraju s/o. Late Gopalaraju and his vendor R.Dayanandaraju s/o. late K.Ramaraju on 6.12.1995 in respect of the suit schedule property herein. As observed in the Judgment, defendants 1 and 2 could not appear inspite of 24 O.S.No.5024/2010 substitute service. The said suit came to be decreed partly exparte thereby the said defendants were restrained by an order of perpetual injunction restraining them from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property. But the relief of mandatory injunction as sought against defendants was rejected.
16. The plaintiff has exhibited the certified copies of the Sale Deeds to show location of the suit schedule property as described in the schedule annexed to the plaint. As per Ex.P20, the certified copy of the registered Sale Deed dated.30.3.1981, one Jayaraju s/o. late Venkataswamy sold the site No.72 formed in Sy.No.52/2B of Puttenahalli village within the following boundaries:
East by: property No.40 West by: Road/passage North by: property No.71 South by: site No.73 in favour of Vishwanath Badiger. The certified copy of the registered Sale Deed dated.16.2.1983 at Ex.P21 denotes that the 25 O.S.No.5024/2010 said Thammaiah s/o. Muni Hanumaiah sold khaneshumari No.93- 7 situated at Gramathana of Puttenahalli village, Uttarahalli Hobli, Bengaluru South Taluk measuring East to West:40 ft. and North to South: 30 ft. bounded by East site No.96-1, West by: 25 ft. road, North by site No.69 and south by site No. 95-2 i.e., the suit schedule property to Smt.Jeevan Rathna. Ex.P22 the certified copy of the absolute Sale Deed dated.15.2.2002 shows that Smt.Ambujamma sold residential site bearing No.74 CMC, Khatha No.388, situated at Puttenahalli, measuring East to West:
40 ft. and North to South: 60ft. bounded by East: site No.42, West by: 25ft. width road, North by site No.72 and South presently private property in favour of Smt.Srivalli yogesh.
17. On the other hand, the defendant has been basing his claim only on the sale Agreement dated.19.10.1993, GPA dated.26.10.1993 and an affidavit of R.Dayananda Raju dated.26.10.1993 as per Ex.D2 to Ex.D4. Accordingly, the defendant has entered into sale Agreement with the said 26 O.S.No.5024/2010 R.Dayananda Raju in respect of property khaneshumari No.95/2 situated at Gramathana of Puttenahalli, Bengaluru South Taluk measuring East to West:40 ft. and North to South: 60 ft. together with 1 Square A.C. sheet house and bounded on East by:
property No.184, West by : 25 ft. road, North by: Property No.180 and South by: Property No.182 for sale consideration of Rs.1,05,000/-. The defendant was said to have paid earnest money of Rs.35,000/- as on the date of execution of Agreement of sale and agreed to pay balance of Rs.70,000/- on 26.10.1993.
The GPA at Ex.D3 discloses that as the executant was not in a position to look after the affairs of schedule property due to his personal problems authorised the defendant as his power of attorney and sell the schedule property and other acts as stated therein in respect of the said property. Besides, the said R.Dayananda Raju not only affirmed the sale transaction, but also acknowledged the receipt of entire sale consideration of Rs.1,05,000/- on 26.10.1993 as per affidavit at Ex.D4.27 O.S.No.5024/2010
18. The certified copy of Sale Deed dated.11.10.1990 discloses that the said Smt.Syeda Amtul Azeez w/o. M.Syed Akramulla sold the property bearing khaneshumari No.95/2 as claimed by the defendant herein in favour of R.Dayananda Raju s/o. late K.Ramaraju as per Ex.D1. The defendant has exhibited the certified copy of the voters' list for the year 1995 at Ex.D5 to show his residence. But the number of the residential house of Jayananda Raju as mentioned in the voters' list is no way concerned to either the suit schedule property or the property as claimed by the defendant. Ex.D6 the certified copy of the Ration card discloses that G.Jayananda Raju is residing at No.95/2, 4th cross, 2nd Main, B.O.B. colony, P.H.Main Road, J.P.Nagar 7th phase, South Range. Ex.D7 the certificate issued by the Asst. Executive Engineer (Electrical), BESCOM dated.11.3.2008 shows that the installations as shown therein are standing in the name of the defendant but does not disclose either the residential address or the property number of the residential house of the said person 28 O.S.No.5024/2010 during the relevant period. Ex.D8 to Ex.D11 the Encumbrance Certificates disclose the sale transactions between V.Subbaraju and Syed Amtul Azeez and between Syed Amtul Azeez and R.Dayanada Raju in respect of khaneshumari No.95/2 measuring 40 x 60 ft. within the boundaries as asserted by the defendant in his written statement.
19. Ex.D12 - Consumer Status Active issued by BESCOM discloses that the defendant got the electricity connection at the address old No.95/2, new No.71 and 72, 3rd main, Bank of Baroda colony, Puttenahalli, J.P.Nagar 7th Phase, Bengaluru -78. Ex.D13 the certified copy of the Judgment dated.8.3.2002 passed in O.S.No.2252/1995 goes to show that the alleged vendor of the defendant by name R.Dayananda Raju filed the said suit against V.Subba Raju and S.Babu for permanent injunction in respect of the property as claimed by the defendant. The said suit came to be decreed as the defendants did not contest the claim by filing the written statement. Ex.D14 the certified copy 29 O.S.No.5024/2010 of order sheet in Misc. No.905/2004 was filed by the defendant against the vendor of the plaintiff and others for setting aside the exparte Judgment & Decree dated.3.6.2003 passed in O.S.No.8224/1995. The said petition came to be allowed and restored the said suit as per order dated.2.1.2010. Ex.D15 the certified copy of the order sheet in O.S.No.8224/1995 discloses that after restoration of the said suit, notices were issued to both the parties and counsel. The defendant appeared through his counsel. Inspite of repeated issue of notice, the defendant did not turn up. As per the report of the Process Server, the plaintiff left address as shown in the cause title. Under such circumstances, as the present address of the plaintiff was not known, suit of the plaintiff came to be dismissed for default on 25.6.2010.
20. It is also evident from certified copy of registered GPA dated.12.3.1981 at Ex.D16 that the said Lingappa s/o. Mallaiah appointed Sri.V.Subbaraju s/o. late Chinnappa as his 30 O.S.No.5024/2010 power of attorney holder to do all the acts recited therein in respect of the land baring Sy.No. 52/3 measuring 1 Acre 32 Guntas bounded to the East by: Narasappa's & Mallakka's land, West by:Doddappa's land, North by: Doddappa's land and South by: Gramatana. Ex.D17 the certified copy of the registered Sale Deed dated.16.2.1970 discloses that the said Lingappa purchased the land Sy.No.52/3 measuring 1 Acre 36 Guntas assessed at Rs.280/- from D.R.Kodandaramaraju. Ex.D18 the certified copy of registered Sale Deed dated.21.4.1983 denotes that Smt.Syeda Amtul Azeez w/o. Syed Akramulla purchased the schedule property as claimed by the defendant herein from V.Subbaraju.
21. As discussed supra, it is proved from the Sale Deeds Ex.P20 to Ex.P23 that the suit schedule property as claimed by the plaintiff is part and parcel of Sy.No. 52/2B. The plaintiff has acquired the suit schedule property through registered Sale Deed from the erstwhile owner. Whereas it is proved from Ex.D16 to Ex.D18 that the original owner D.R.Kodandarama Raju was owner 31 O.S.No.5024/2010 of land Sy.No. 52/3 measuring 1 Acre 36 Guntas who sold it to one Lingappa through registered Sale Deed dated.16.2.1970. The said Lingappa executed registered GPA in favour of V.Subbaraju in respect of the said land Sy.No.52/3 measuring 1 Acre 32 Guntas as described in Ex.D16. One Smt.Syeda Amtul Azeez purchased the same from the said GPA holder- V.Subbaraju, the property as claimed by the defendant herein on 21.04.1983. Thereafter the vendor of the defendant was purchased the same property from Smt.Syeda Amtul Azeez through registered Sale Deed dated.11.10.1990. There was no impediment to the vendor of the defendant to execute the registered Sale Deed immediately on receipt of entire sale consideration of Rs.1,05,000/- in favour of defendant. The plaintiff got executed GPA, sale Agreement and affidavit regarding purchase of the said property for consideration. It is an admitted fact that the vendor of the defendant is no more. As such, the GPA at Ex.D3 came to an end. Looking from any angle, the alleged GPA dated.26.10.1993 is not 32 O.S.No.5024/2010 at all acted upon. Besides, the defendant did not care to take appropriate steps for enforcing Agreement of sale dated.19.10.1993 within reasonable time. As such, the right if any created through such sale Agreement in favour of defendant in respect of the alleged property has also extinguished. Under these circumstances, the defendant has no locus-standi either to assert any sort of right, title or interest over the disputed site under unenforceable sale Agreement dated.19.10.1993 at Ex.D2 or deny the right of plaintiff over the suit property.
22. The suit filed by the vendor of the plaintiff decreed exparte against the defendant herein in respect of the suit schedule property, has become infructuous on account of dismissal of the same for non-prosecution. The defendant cannot take shelter under dismissal of the said suit of the vendor of the plaintiff in respect of the suit schedule property against him. It is proved from the preponderance of evidence with all probabilities that the plaintiff has got right, title or interest over 33 O.S.No.5024/2010 the suit schedule property through registered Sale Deed. But the defendant though a stranger has occupied portion of the schedule property measuring 10x10 ft. by erecting shed just at the time of plaintiff purchasing the suit property from his vendor and subsequently occupied the entire schedule property measuring East to West:40 ft. and North to South:30 ft. as described in the schedule annexed to the plaint. When the defendant has failed to prove either any sort of right over the property purchased by the plaintiff or the property as claimed by him, and then the defendant has become stranger to the suit schedule property and the possession of the defendant over the property of the plaintiff. As such his possession is not only unauthorised, but also illegal. Hence without much discussion, I answer Issue No.1 in the Affirmative.
23. Issue Nos. 2 to 4:- In view of my findings on Issue No.1 and reasons stated therein, when the defendant is in unauthorised possession of the suit schedule property by erecting 34 O.S.No.5024/2010 temporary shed and then the defendant is not only liable to remove the unauthorised construction made on the suit schedule property, but also bound to handover possession of the suit property to the defendant. Mere claim of defendant over the suit property under ownership of the plaintiff does not raise cloud over the plaintiff's title. As such, plaintiff need not file suit for declaration, as the plaintiff is wanted possession. Therefore, the suit for mere possession is maintainable. Looking to the nature of possession of the defendant over the suit schedule property, in the absence of cogent and convincing evidence, the plaintiff is not entitled to claim damages at any rate from the defendant. Hence without much discussion, I answer Issue Nos.2 and 4 in the Affirmative and Issue No.3 in the Negative.
24. Issue No.4:- In view of my findings on the issues No.1 to 4 and the reasons stated therein, in the result, I proceed to pass the following:-
35 O.S.No.5024/2010
ORDER The suit of the plaintiff is decreed partly with costs as under:-
It is declared that the possession of the defendant over the suit schedule property is unauthorised. Consequently, the defendant is hereby directed to deliver back the possession of the suit schedule property to the plaintiff within three months from the date of this order.
The suit of the plaintiff for damages as claimed against the defendant in respect of the suit schedule property is dismissed.
Draw up a decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 23rd day of June 2015.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore 36 O.S.No.5024/2010 A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Sri.Ananda Rao
P.W.2: Sri.Shankar
(b)Defendant's side :
D.W.1: Sri.Sri.Jayananda Raju
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Absolute sale deed dt.13.12.2004 executed by Smt.Sudha Ex.P2: Absolute sale deed dt.16.02.1983 executed by Thammaiah in favour of Smt.Sudha Encumbrance certificate from 1.6.1989 to Ex.P3: 18.11.1995 Encumbrance certificate from 1.4.1984 to Ex.P4: 31.05.1989 Encumbrance certificate from 2.3.1982 to Ex.P5: 01.04.1985 Encumbrance certificate from 1.6.1989 to Ex.P6: 31.03.2004 Encumbrance certificate from 1.4.2004 to Ex.P7: 11.07.2007 Encumbrance certificate from 1.4.2004 to Ex.P8: 03.02.2007 Encumbrance certificate from 1.4.2005 to Ex.P9: 25.04.2006 Demand register extract Ex.P10: Tax payment receipt Ex.P11: Self assessment of tax 37 O.S.No.5024/2010 Ex.P12: Tax payment receipt Ex.P13: Self assessment of tax Ex.P14: Tax payment receipt Ex.P15: Self assessment of tax Ex.P16: Tax payment receipt Ex.P17: Self assessment of tax Ex.P18: Certified copy of Judgment & Decree Ex.P19: passed in O.S.No.8224/1995 Ex.P20: Certified copy of Sale Deed dtd.30.3.1981 Ex.P21: Sale Deed dated.16.2.1983 Ex.P22: Sale Deed dated.15.2.2002 Ex.P23: Registered Gift Deed dated.8.10.2009.
(b) For defendant's side:-
Ex.D1: Certified copy of the sale deed
dt.11.10.1990 executed by Smt. Sayeda
Amtul Azeez in favour of R.Dayananda
Raju.
Ex.D2: Certified copy of sale agreement
dt.19.10.1993 entered into between R.
Dayananda Raju and G.Jayanandaraju.
Ex.D3: Certified copy of general power of
attorney executed by R. Dayananda
Raju in my favour.
Ex.D4: Certified copy of affidavit of R.
Dayananda Raju.
Ex.D5: Certified copy of voter's list.
Ex.D6: Certified copy of ration card.
Ex.D7: Certified copy of letter dt.11.03.2008
issued by BESCOM and service
certificate.
Ex.D8: Encumbrance certificate from
22.04.1983 to 31.05.1989.
Ex.D9: Encumbrance certificate from
01.06.1989 to 31.03.1997.
Ex.D10: Encumbrance certificate from
38 O.S.No.5024/2010
01.04.1997 to 30.03.2004.
Ex.D11: Encumbrance certificate from
01.04.2004 to 24.10.2011.
Ex.D12: Revenue report as on 31.08.2010 issued
by BESCOM,
Ex.D13: Certified copy of judgment and decree
passed in O.S.No.2252/1995,
Ex.D14: Certified copy of order sheet in Misc.
No.905/2004
Ex.D15: Certified copy of order sheet in
O.S.No.8224/1995
Ex.D16: Certified copy of GPA executed by
Lingappa in favour of Subbaraju
Ex.d16(a): Typed copy of Ex.P16
Ex.D17: Certified copy of Sale Deed
dated.16.2.1970
Ex.D17(a): Typed copy of Ex.P17
Ex.D18: Certified copy of Sale Deed
dated.21.4.1983
Ex.D18(a): Typed copy of Ex.D18
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
39 O.S.No.5024/2010
(Judgment pronounced in open court)
The suit of the plaintiff is
decreed partly with costs as under:-
It is declared that the
possession of the defendant over the
suit schedule property is unauthorised.
Consequently, the defendant is hereby
directed to deliver back the possession
of the suit schedule property to the
plaintiff within three months from the
date of this order.
The suit of the plaintiff for
damages as claimed against the
defendant in respect of the suit
schedule property is dismissed.
Draw up a decree accordingly
vide Judgment passed.
XII ACCJ;Bangalore