Bangalore District Court
Sri.Althaf Basha vs Smt.Jayamma on 30 October, 2019
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU
(CCH74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge
Dated this the 30th day of October, 2019.
O.S. No.16189/2006
Plaintiff: Sri.Althaf Basha, S/o.Sri.Shafi
Ebrahim, aged about 35 yrs,
R/at.No.10, Ambedkar Nagar,
Vijinapura, Doorvaninagar,
Bengaluru560016.
(By Sri.R.Jagadish Prasad - Adv.)
V/S
Defendants: 1. Smt.Jayamma, W/o.Sri.Raju,
aged about 62 yrs,
Since deceased by her LR's
1(a). Sri.Shiva, S/o.Sri.Raju,
aged about 35 yrs,
2 O.S. No.16189/2006
1(b). Smt.Bhuvaneshwari @
Bhuvana, D/o.Sri.Raju,
aged about 32 yrs,
1(c). Sri.Thilak Raju,
S/o.Sri.Raju, aged about
30 yrs,
All are R/at.C/o.Savithri
Varadaraj, No.11,
Ambedkarnagar, Vijinapura,
Doorvaninagar, Bengaluru16.
2. Sri.Raju, aged about 51 yrs,
R/at.C/o.Savithri Varadaraj,
No.11, Ambedkarnagar,
Vijinapura, Doorvaninagar,
Bengaluru16.
(By Sri.S.Muniraju - Adv for defts.No.1(a) & 2)
(Defts.No.1(b) &(c)Exparte)
Date of Institution of the suit 11.07.2006
Nature of the (Suit or pro
note, suit for declaration and
INJUNCTION SUIT
possession, suit for injunction,
etc.)
Date of the commencement of
15.02.2010
recording of the Evidence.
Date on which the Judgment was
30.10.2019
pronounced.
3 O.S. No.16189/2006
Year/s Month/s Day/s
Total duration 13 03 19
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH74)
JUDGMENT
The plaintiff has filed this suit against the defendants, restraining them from interfering with plaintiff's construction work over the suit schedule property.
2. Brief facts of the plaintiffs' case:
It is the case of the plaintiff that plaintiff is the absolute owner and in possession and enjoyment of the suit property by virtue of registered sale deed dated 01.8.2002. The vendor of the plaintiff has acquired the suit schedule property through registered Will, executed by her father Muniyappa. Further it is the case of the plaintiff that her vendor Smt.Nagarathna, after acquisition of the suit property from her father, has formed sites and sold to different purchasers and to the plaintiff. After 4 O.S. No.16189/2006 purchase the plaintiff is in actual physical possession of the suit property as a true owner. Thereafter, revenue records have been changed in the name of plaintiff in respect of suit schedule property and plaintiff is paying tax to the competent authority in respect of suit schedule property. Such being the fact, the plaintiff, with a intention to construct residential construction over the suit property, has obtained sanctioned plan and started to demolish existing old building structure. When plaintiff started to demolish existing old structure, at that time the defendants, without having any right, interest and title over the suit property, had objected construction work and made attempt to interfere with the construction work. Not only this, on 9.7.2006 the defendants with their supporters came near the suit schedule property and tried to interfere in the construction work, the plaintiff went to the jurisdictional police to lodge the complaint against the defendants, but police authority instead of registering the case against the defendants, have advised to approach the civil 5 O.S. No.16189/2006 court as the dispute between the plaintiff and defendants is civil in nature. Hence, the plaintiff, in order to prevent the illegal act of defendants, had filed this suit for necessary relief sought in the plaint.
3. On the other hand, the defendants No.1 and 2 appeared through their counsel and filed common written statement contending that the plaintiff has no right, interest, title over the suit property. The plaintiff has fabricated, created forged document for the purpose of this suit. On the basis of such document the plaintiff has filed this frivolous, vexatious suit which amounts to abuse of process of court as the plaintiff is not entitled for the relief sought in the plaint as there is no cause of action to file this suit. With this the defendants sought for dismissal of the suit.
4. Further defendants contended in their written statement that suit of the plaintiff suffers from nonjoinder, misjoinder of necessary parties, no suit property exist, there is serious dispute with regard to identity of the suit property. The plaintiff had no right over full extent of the suit property Sy.No.42 of Vijinipura Village, which belongs to Govt., now comes within the jurisdiction 6 O.S. No.16189/2006 of CMC, KR Puram, Bengaluru. The defendants are in peaceful possession of the half Western portion of suit schedule property for more than 35 years. Thus defendants have perfected their title over the half Western portion of suit property by adverse possession. Further contended that plaintiff's vendor formed layout in Sy.No.60 not in Sy.No.42 of the land. The suit property is not in Sy.No.60, it is in portion of Sy.No.42, plaintiff is not in possession of suit schedule property at any point of time. The defendants have denied the entire case of the plaintiff and sought for dismissal of the suit.
4(A). Initially this suit is filed before the CCH21, in view of the Notification No.ADMI (A) 205/2019, dated 30.3.2019, this case has been transferred to this court as per order dated 6.6.2019 from CCH21. And suit was called out in this court for the first time on 11.6.2019.
5. On basis of the pleadings and documents of the parties my learned Predecessor has framed following: 7 O.S. No.16189/2006 ISSUES
1. Whether the plaintiff is in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference?
3. What order or decree?
6. The power of attorney holder of plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.12 and plaintiff got examined P.W.2, in order to prove his case. P.W.1 and 2 were cross examined by the learned counsel for the defendants. On the other hand, defendant No.2 is examined as D.W.1 and got marked Ex.D.1 to D.20. The defendants got examined D.W.2 in support of their case. D.W.1 and 2 were crossexamined by the learned counsel for the plaintiff. The Court Commissioner is examined as C.W.1 and got marked Ex.C.1 to C.3 and was crossexamined by the learned counsel for the parties. Heard argument of learned counsel for the plaintiff, the argument of the learned counsel for 8 O.S. No.16189/2006 the defendants was taken as heard after giving sufficient opportunity.
7. My answer to 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
8. ISSUE No.1: In order to prove his case the PA holder of the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.12, P.W.1 is examined by filing affidavit in lieu of examination in chief, reiterating the averments of the plaint. It is the case of the plaintiff that he is the absolute owner and in possession of the suit property by virtue of registered sale deed dated 1.8.2002, which is fallen in Sy.No.60 of Vijinipura Village. The plaintiff's vendor was the absolute owner and was in possession with a transferable title of suit schedule property at the time of sale to the plaintiff. After purchase the revenue records of the suit schedule property are 9 O.S. No.16189/2006 changed in the name of plaintiff, hence plaintiff is in possession and enjoyment of the suit schedule property by virtue of registered sale deed.
9. In support of his oral evidence plaintiff got examined P.W.2. P.W.2 is the vendor of the plaintiff and deposed that the plaintiff has purchased site No.32, measuring 44 x 30 of Vijinapura Village, which comes in Sy.No.60 of Vijinapura Village through registered sale deed, hence plaintiff is in possession of the suit schedule property.
10. In support of oral evidence plaintiff has produced 12 documents which have been marked at Ex.P.1 to P.12. Ex.P.1 is the power of attorney executed by plaintiff authorising the P.W.1 to depose the evidence in the suit and prosecute the suit on his behalf. Ex.P.2 is the original registered sale deed dated 1.8.2002. I have perused the Ex.P.2. Ex.P.2 reflects, at recital that the vendor of the plaintiff; i.e., Smt.Nagarathnamma was in possession and enjoyment of the suit property at the time of sale 10 O.S. No.16189/2006 to the plaintiff. Further it is reflects that the vendor of the plaintiff has acquired the suit property under registered Will dated 11.3.1981, executed by her father and after Will came into existence the vendor of the plaintiff got changed khatha certificate in her name. It is also clear from the Ex.P.2 that the plaintiff has paid the consideration amount of Rs.1,92,000/ to his vendor.
11. Ex.P.3 is the tax paid receipt. Ex.P.4 is a sanction letter issued by the CMC, Krishnarajapura, Bengaluru, for construction of building over the suit schedule property. I have perused the Ex.P.4 it reflects the name of the plaintiff who applied for the permission to construct the building over the suit schedule property. Further it reflects the number and date of issuance of permission and the number of site. As per Ex.P.4 the CMC has issued sanction plan for construction over the suit schedule property bearing No.231/60/32 and the plaintiff has paid permission fee of Rs.1,426/.
11 O.S. No.16189/2006
12. Ex.P.5 is the occupation certificate issued by the CMC. I have perused Ex.P.5 which reflects the name of plaintiff in the column of the name of owner and site No. as 32, Sy.No. as 60 of Vijinapura and the measurement of suit schedule property as 30 x
44. Ex.P.6 is the assessment register of Income Tax for the year 200506. I have perused the Ex.P.6, which reflects the name of the plaintiff as a owner and suit schedule property site No.32, khatha No.231, Sy.No.60, measurement as 30 x 44.
13. Ex.P.7 is the Encumbrance Certificate issued by the SubRegistrar of Krishnarajapura, in respect of suit schedule property. I have perused Ex.P.7, which reflects the suit schedule property, as site No.32, khatha No.231 and its measurement as 30 x 44 feet. So, on perusal of the Ex.P.7 it is clear that the transaction of plaintiff with his vendor has entered in the Encumbrance Certificate. Ex.P.8 is the EC for the period from 1.6.1989 to 31.3.2005, which reflects the name of the vendor as M.Nagarathnamma and name of the plaintiff as a purchaser and 12 O.S. No.16189/2006 consideration amount of Rs.1,92,000/, the site No. as 32, khatha No. as 231 and property No.60, measurement 30 x 44. Ex.P.9 to P.11 are the taxpaid receipts in respect of site No.32, situated at Sy.No.60, in khatha No.231 stands in the name of plaintiff. Ex.P.12 is the sanctioned plan issued by the CMC, Krishnarajapuram in respect of suit schedule property in the name of plaintiff for construction over the suit schedule property.
14. I have perused oral and documentary evidence led by the plaintiff, it is clear that the plaintiff is in possession and enjoyment of the suit schedule property by virtue of registered sale deed dated 1.8.2002.
15. Ex.P.2 is the registered sale deed executed by its owner in favour of the plaintiff. Section 17 of the Registration Act provides that any document purports or operates to create, declare, assign, limit or extinguish whether in present or in future any right, title or interest whether vested or contingent of the value of Rs.100/ and upwards to or in immovable property shall 13 O.S. No.16189/2006 be registered. The registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and fraud in regard to transactions and execution of documents. The registration of documents provides information to people who may deal with a property, as to the nature and extent of rights which person may have, affecting that property. In other words, it enables the people to find out whether any particular property with which, they are concerned, has been subjected to any legal obligation or liability and who is or are the persons presently having right, title and interest in the property. Further provides solemnity of form and perpetuate document which are of legal importance or relevance by recording them, where people may see the records and enquire and ascertain that the particulars are and as far as land is concerned what obligations exist with regard to them. Further it ensures that every person dealing with immovable 14 O.S. No.16189/2006 property can rely with confidence upon the statements contained in the registers as a full and complete account of all transactions by which the title to the property may be affected and secure extracts duly certified. The registration of documents makes the process of verification and certification of title easier and simpler. And it reduces disputes and litigations to a large extent. Under such circumstances, when Ex.P.2 is a registered sale deed, under which, the plaintiff is in possession and enjoyment of the suit schedule property.
16. I have perused cross of P.W.1 and P.W.2, nothing is elicited from the crossexamination of P.W.1 and P.W.2 to disbelieve the case of the plaintiff. It is an admitted fact that the defendants are residing in Sy.No.42, which is belongs to the government and they have no documents to show their possession and title over the property in which they are residing. Further it is admitted that the government has initiated the action against the defendants and others for illegal occupation of land bearing 15 O.S. No.16189/2006 Sy.No.42 of Vijinapura Village. It is also not in dispute by both the parties that said Sy.No.42 is belongs to the Government. The defence of the defendants is that plaintiff had encroached over Sy.No.42, which is belongs to government and suit property of the plaintiff is fallen in Sy.No.42. In order to ascertain as to whether the suit property comes in Sy.No.42 or 60 of Vijinapura Village, the defendant has filed application for appointment of Court Commissioner. This court has appointed the Court Commissioner and Court Commissioner has submitted his report which are marked at Ex.C.1 to C.3 and Court Commissioner is examined. The Court Commissioner deposed before the court that he has measured the Sy.No.60 and prepared a sketch of Sy.No.60. But, Court Commissioner has not measured the extent of Sy.No.42. It is the argument of the learned counsel for the defendant that the Court Commissioner is appointed for ascertaining as to whether suit property falls in Sy.No.42 or Sy.No.60. Further he argued that Court Commissioner has not done his work in accordance 16 O.S. No.16189/2006 with the order of this court, because the Court Commissioner has not measured the extent of Sy.No.42. Hence, the Commissioner report is not complete. Under such circumstances, it is difficult for ascertaining the suit schedule property as to whether suit schedule property comes in Sy.No.42 or Sy.No.60. I have perused the Court Commissioner report with sketch. It is clear that the Court Commissioner has measured the extent of Sy.No.60 and submitted that suit schedule property falls in Sy.No.60. The purpose of appointment of Court Commissioner is as to whether suit schedule property comes in Sy.No.42 or in Sy.No.60. According to Court Commissioner, on measurement of Sy.No.60, it is found that suit schedule property falls in Sy.No.60. Under such circumstances, though he has measured both Sy.No.42 and 60, but in the sketch he has mentioned the measurement of Sy.No.42 in his report. I have perused Ex.C.1 to C.3, it is clear that Court Commissioner has done his work in the presence of both parties and presence of learned counsel for the plaintiff. It is also clear that Court 17 O.S. No.16189/2006 Commissioner has issued prior notice to the parties as well as their respective counsel. The objection of the learned counsel for the defendant to the Court Commissioner report is that the Commissioner has not mentioned the measurement of Sy.No.42, in the absence of measurement of Sy.No.42 it cannot be ascertained as to whether suit property falls in Sy.No.60 or 42 of Vijinapura Village. The purpose of appointment of Court Commissioner is to ascertain the suit schedule property and whether it falls in Sy.No.60 or 42. It is specifically mentioned in Commissioner report that suit schedule property falls in Sy.No.60. When Commissioner has mentioned so, then the question of measurement of Sy.No.42 is not necessary, because on measurement of Sy.No.60 the suit property found in Sy.No.60. Under such circumstances, simply nonmentioning of measurement of Sy.No.42, in Commissioner report, would not come in the way of ascertaining the suit schedule property. That apart, defendant No.2 is examined as D.W.1 and was cross 18 O.S. No.16189/2006 examined by the learned counsel for the plaintiff. Defendant No.2 has clearly admitted in his crossexamination at page18, which reads thus:
ವವದಯಯ ಅವನಗಗ ಸಸಬಸದಪಟಟ ಸಗಸಟನಲಲ ಕಟಟಡ ಕಟಟಲಯ ನನಗಗ ಯವವವದಗದ ಅಭಭಸತರವಲಲ ಅನಯನವವದಯ ನಜ. ವವದಯ ಸಗಸಟ ನಸ.32 ರ ಮದಲಗ ನಮಗಗ ಯವವವದಗದ ಹಕಯಕ ಮತಯತ ಹತವಸಕತ ಇಲಲ ಅನಯನವವದಯ ನಜ. ಸದರ ಸಗಸಟ ನಸ.32 ಇವತತಗಗ ಕಗಡ ವವದಯ ಸವಸಧದನದಲಲಯದ ಇದಗ ಅದಯ ಅನಯನವವದಯ ನಜ. Defendants have examined D.W.2 who is resident of Vijinapura Village. In the crossexamination of D.W.2, he deposed that Sy.No.60 is belongs to one Thoti Muniyappa. The relevant portion of cross of D.W.2 at page8 reads thus:
ತಗಗದಟ ಮಯನಯಪಪ ಇವರ ಜಮದನ ಸವಗದರ ನಸ.60 ಇರಯತತದಗ. ನಮಮ ಮನಗ ಇರತಕಕಸತಹ ಜಮದನನಯನ ಅಳಗಯಯವ ಕವಲಕಗಕ ಸವಗದರ ಇಲವಖಗಯ ಅಧಕವರಯವರಯ ಸದರ ತಗಗದಟ ಮಯನಯಪಪನವರ ಜಮದನನ ಸವಗದರ ನಸ.60 ಇರಯತತದಗ ಅಸತ ನನಗಗ ಹಗದಳದರಯ. ನವಗರತನ/ಪ.ಡಬಗಲಬ2 ಇವಳಳ ತಗಗದಟ ಮಯನಯಪಪನ ಮಗಳಳ ಅಸತ ನನಗಗ ನಸತರ ಗಗಗತವತಗದಗ. ಸದತಮಮ ಅನಯನವವಳಳ ತಗಗದಟ ಮಯನಯಪಪನ 2 ನಗದ ಹಗಸಡತ ಇರಯತವತಳ ಗ. ನವಗರತನ ಸದತಮಮಳ ಮಗಳಲಲ, ಆಕಗ ತಗಗದಟ ಮಯನಯಪಪನ 1 ನಗದ ಹಗಸಡತ ಮಯನಪಳಳಮಮ ಅನಯನವವಳ ಮಗಳರಯತವತಳ ಗ.19 O.S. No.16189/2006
On perusal of the oral and documentary evidence led by both the parties it is clear that the plaintiff is in possession and enjoyment of the suit schedule property, which comes in Sy.No.60 of Vijinapura Village. Defendant No.2 is examined as D.W.1 and deposed before the court that the plaintiff has no right over the Sy.No.42 of Vijinapura Village and said Sy.No.42 is belongs to government and defendants and others are in possession and enjoyment of the portion of Sy.No.42 for the last more than 45 years. This evidence clearly shows that the defendants are illegal occupants of government land; i.e., Sy.No.42. Even the defendants have no document to show in which portion of Sy.No.42 the defendants are residing. And it is also admitted by the defendants that they have no documents to show their title and possession of the Sy.No.42. On the admitted fact it is clear that defendants without having any rights, title over Sy.No.42, taking advantage of illegal possession of Sy.No.42, has interfered in the possession of the plaintiff who had registered sale deed in 20 O.S. No.16189/2006 respect of suit schedule property. Without having any rights or interest over the Sy.No.42 the defendants have obstructing the possession of suit schedule property of the plaintiff who had title deeds in respect of suit schedule property. I have perused Ex.D.5 to D.10 photo of the schedule property and Ex.D.12 to D.20. Ex.D.11 & 12, are the endorsements issued by the CMC, Krishnarajapura. I have perused Ex.D.11 and 12, which reflects that the defendants have applied for the supply of documents relating to site No.32. I have perused Ex.D.13, D.14 & D.15. Ex.D.13 is the complaint lodged by the vendor of the plaintiff against the illegal occupants of Sy.No.42 of Vijinapura and Ex.D.14 is the letter submitted to the Police Station, Ramamurthy Nagar, by the illegal occupants of Sy.No.42 of Vijinapura Village contending that the vendor of the plaintiff has encroached the Sy.No.42. This letter clearly establish that the defendants and others are in illegal occupation of Sy.No.42 and further clear that being the illegal occupants of Sy.No.42 the defendants have 21 O.S. No.16189/2006 started obstruction to the residents of Sy.No.60. And tried to protect their illegal possession of Sy.No.42.
17. Ex.D.16 is the letter submitted to the concerned Thahsildhar by the illegal occupants of Sy.No.42, alleging that the vendor of the plaintiff had encroached over Sy.No.42. Now the question is as to whether the defendants are entitled to protect their illegal possession as admittedly, the Sy.No.42 is belongs to government. On considering the admitted fact that the Sy.No.42 is belongs to government, government has already initiated action against the defendants for illegal occupation of government land Sy.No.42, the defence taken by the defendants is not sustainable. Ex.D.17 to 20 are the applications filed by one Jayamma under the provisions of the Right to Information Act, 2005, which are not relevant to the fact in issue. On careful perusal of the material placed before the court it is clear that the defendants have illegally occupied the land Sy.No.42, which is belongs to government admittedly, have started obstruction to the neighbouring owners 22 O.S. No.16189/2006 of Sy.No.60. The defendants are not entitled to take such a defence that the plaintiff is encroaching government land Sy.No.42, admittedly defendants themselves have encroached over Sy.No.42 and in illegal possession of Sy.No.42.
18. I have perused Ex.P.3 tax paid receipt, Ex.P.4 license issued by the CMC, Krishnarajapura, to the plaintiff for construction over the suit schedule property and Ex.P.5 to P.11 are the revenue records, Ex.P.12 is the sanctioned plan. On perusal of these revenue records, it is clear that the plaintiff is in possession and enjoyment of the suit schedule property, which falls in Sy.No.60 of Vijinapura.
19. These revenue entries are the entries, in respect of suit property, made by the public servants, while discharging their duty as public servants. Those entries have evidentiary value under the provisions of Section 35 of the Evidence Act, which reads thus:
35.Relevancy of entry in public [record or an electronic record] made 23 O.S. No.16189/2006 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.
On perusal of the contents of Ex.P.2, clearly shows that the vendors of the plaintiff had transferable valid title and possession over the suit property to transfer the same in favour of the plaintiff. To know the effects and consequences of valid transfer of immovable property, it is relevant extract provisions of Section 8 of the T.P. Act which reads thus:
24 O.S. No.16189/2006
8. Operation of transfer.Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.
Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth;
and, where the property is machinery attached to the earth, the moveable parts thereof;
and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith;
and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer;
25 O.S. No.16189/2006
and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect. So, on careful perusal of the facts and contents of the Ex.P.2, with reference to provision of law referred above, it can be safely held that the plaintiff is in possession and enjoyment of the suit property as owner at the time of filing of this suit. With the reasons assigned above and relying on the decisions referred above, I hold that plaintiffs have proved this issue with cogent evidence. Hence, I answer this issue in the Affirmative.
20. ISSUE No.2: It is the case of the plaintiff that he has purchased the suit property under the registered sale deed from the lawful owner for valuable consideration of Rs.1,92,000/, after receiving the said consideration amount, the plaintiff being put in possession of the suit property by his vendor, since then plaintiff is in peaceful possession and enjoyment of the suit schedule property. Further it is case of the plaintiff that admittedly, the defendants are not owners of the property Sy.No.42 and they have 26 O.S. No.16189/2006 no documents to show that they are the occupants of a particular portion of Sy.No.42. The defendants have admitted that they are illegal occupants of Sy.No.42 and government has initiated action against them for illegal occupation of Sy.No.42 of Vijinapura Village. Without showing their possession of the property Sy.No.42, the defendants have started obstruction to the plaintiff's peaceful possession and enjoyment of the suit schedule property and defendants have interfered with the construction work of plaintiff who has started construction work after obtaining necessary sanction and permission from the competent authority.
21. I have perused Ex.D.15 lodged by one Jayalakshmi and Savithri of Vijinapura Village before the Tahsildhar, alleging that the present plaintiff and others are obstructing their possession in Sy.No.42, which is belongs to government, and sought for necessary action against the plaintiff and other residents of Sy.No.60 of Vijinapura Village. I have perused Ex.D.15 it is clear that though the defendants are not a owners of Sy.No.42 and their 27 O.S. No.16189/2006 possession itself is illegal, admittedly, the Government has set law in motion against the persons who are in occupation of Sy.No.42 illegally, under such circumstances, it is clear that the act of defendants is illegal and they have made interference in peaceful possession and enjoyment of the suit schedule property of the plaintiff.
22. Further I have perused Ex.D.16, the request letter of illegal occupants of Sy.No.42, filed before the concerned Thahsildhar, contending that they are residing in Sy.No.42, which is belongs to Government, further it is alleged by the illegal occupants of Sy.No.42 that present plaintiff and his vendor who are the residents of Sy.No.60, are obstructing the possession of illegal occupants of Sy.No.42. So, on perusal of the documents produced by the defendants, it is clear that though they have no right over the property Sy.No.42 and they are illegally occupied Sy.No.42 and started lodging complaint against the site owners of Sy.No.60. So, this act of defendants clearly established that 28 O.S. No.16189/2006 defendants have interfered in peaceful possession and enjoyment of the plaintiff. So, when plaintiff proved his possession and interference, with documentary evidence, under such circumstances, I am of the opinion that the plaintiff is entitled for the relief sought in the plaint. In support of my opinion I relied on the decision reported in (2008) 4 SCC 594 in case of Anathulla Sudhakar v/s P.Buchi Reddy (dead) by LRs and others.
The lordship 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.
So, in the case on hand the plaintiff has, even proved his title by producing the original sale deed in respect of suit property, which have been marked at Ex.P.2. To over look the registered sale deed of plaintiff, no documents have been produced by the defendants. Simply denial of title and production of irrelevant 29 O.S. No.16189/2006 documents would not creates any cloud over the title of the plaintiff.
23. On the material placed before the court it is very much clear that the relief sought in the plaint is only on basis of registered sale deed, by virtue of which the plaintiff is in possession and enjoyment of the suit property. The case of the defendants is that they are the illegal occupants of Government land Sy. No.42. Under the facts and circumstances of the case and on admitted fact, it is clear that, the defendants without having any rights, title over the property in which, they are residing illegally, has interfered in the possession of the plaintiff.
On perusal of the contents of the pleading, oral and documentary evidence, led by the parties, it is clear that plaintiff has independently proved his possession and interference, by producing documentary evidence.
24. On perusal of the documents produced by the defendants it is clear that the defendants have interfered in the 30 O.S. No.16189/2006 peaceful possession and enjoyment of the property. On perusal of the oral and documentary evidence and pleading in the written statement, I am of the opinion that plaintiff had proved the interference of the defendants. With this observation, I answer this issue in the Affirmative.
25. ISSUE No.3: Inview of the discussion made on Issue Nos.1 & 2, I proceed to pass the following:
ORDER The suit filed by the plaintiff is hereby decreed. Consequently, defendants, their agents, henchmen, or any person claiming through defendants, are hereby restrained, by order of permanent injunction, from interfering with the plaintiff's construction work, lawful possession 31 O.S. No.16189/2006 and enjoyment of the suit schedule property.
No order as to Costs.
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 October, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) SUIT SCHEDULE PROPERTY All that piece and parcel of residential site bearing No.32, carved out of Survey No.60, katha No.231, situated at Vijinapura Village, Krishnarajapuram Hobli, Bengaluru East Taluk, now comes under the jurisdiction of C.M.C., Krishnarajapuram, Bengaluru and measuring East to West: 30 feet, North to South: 44 feet, measuring in all 1320 square feet and bounded on the:
East by: Site No.33;
32 O.S. No.16189/2006
West by: Site No.31;
North by: House belonging to Aktharunnissa; and on
South by: Road.
(Yamanappa Bammanagi)
LXXIII Addl. CC & SJ, M.H. Unit,
Bengaluru. (CCH74)
ANNEXURES
List of witnesses examined for the plaintiff's side:
P.W.1 Smt.Aktherunnisa P.W.2 Smt.Nagarathnamma
List of documents exhibited for the plaintiff's side:
Ex.P.1 GPA executed by the plaintiff
Ex.P.2 Sale deed dated 1.8.2002 executed by
Nagrathanamma
Ex.P.3 Taxreciept
Ex.P.4 Licence
Ex.P.5 Holder khatha
Ex.P.6 Taxreceipt
Ex.P.7 & 8 Encumbrance Certificates
Ex.P.9 to 11 Taxreceipts
Ex.P.12 Sanctioned plan
33 O.S. No.16189/2006
List of witnesses examined for the defendants' side:
D.W.1 Sri.S.Raju D.W.2 Smt.Mahaboobhi
List of documents exhibited for the defendants' side:
Ex.D.1 C/C of written statement in O.S.1424/92 Ex.D.2 & 3 C/C of compromise petition and decree Ex.D.4 to 10 Colour photos Ex.D.4(a) to 10(a) Negatives Ex.D.11 Original Endorsement No.REV/14/200607, 13.09.2006 issued by City Municipal Council, K.R.Puram, Bengaluru.
Ex.D.12 Original Endorsement No.Kattadadha para/Mahithi/200607, dated 14.09.2006 issued by City Municipal Council, K.R.Puram, Bengaluru.
Ex.D.13 & 14 Copies of complaints
Ex.D.15 Copy of letter dated 07.10.2002
Ex.D.16 Copy of letter dated 22.10.2002
Ex.D.17 & 18 Applications for Information/Document under
the Right to Information Act2005
Ex.D.19 & 20 Endorsements
List of witness examined for the Court Commissioner's side:
C.W.1 Court Commissioner List of documents exhibited for the Court Commissioner's side: 34 O.S. No.16189/2006
Ex.C.1 & 2 Two mahazars Ex.C.3 Commissioner report (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru.(CCH74) 35 O.S. No.16189/2006 36 O.S. No.16189/2006