Bangalore District Court
Sri.B.R.Prakash vs Sri. K.Raghavendra on 13 February, 2020
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IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 13 th DAY OF FEBRUARY, 2020.
PRESIDING OFFICER
PRESENT : Sri.Sadananda M.Doddamani,
B.A., L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.1190/2012
PLAINTIFF/S: Sri.B.R.Prakash,
S/o B.N.Ramu,
Aged about 35 years,
R/at No.77/21, 7 th cross,
17 th main, J.C.Nagar,
Bengaluru - 560 086.
(By Sri.VBS, Advocate)
Vs.
DEFENDANT/S: 1. Sri. K.Raghavendra,
S/o Sri.Krishnappa,
Aged about 42 years,
R/at No.56, 9 th Main road,
Kempegowdanagar,
Laggere,
2
Bengaluru - 560 058.
2. Smt.S.B.Indiramma,
W/o Sri.Shivalingaiah,
Aged about 36 years,
R/at No. 24,
Pipe Line road,
'B' cross, J.C.Nagar,
Bengaluru - 560 086.
(By Sri.CHS, Advocate)
* * * * *
Date of institution of suit : 09.02.2012
Nature of suit : Declaration &
possession
Date of commencement
of recording of evidence : 05.08.2013
Date on which the judgment
was pronounced : 13.02.2020
Duration of the suit :Year/s Month/s Day/s
08 00 04
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JUDGMENT
1. This is a suit filed by the plaintiff seeking the relief of declaration, possession, permanent injunction and damages.
2. In brief the case of the plaintiff is as under:
That the plaintiff is the absolute owner of the suit schedule property as detailed in the plaint schedule and he has purchased the same under registered sale deed dated 20.11.2004 from Ramakka W/o Eshwarappa. The said registered sale deed conveying right, title, interest together with possession under the above referred sale deed and the plaintiff has been inducted in possession of the entire extent exercising his title and possession over the property. It is further contended that the plaintiff's vendor Ramakka acquired 4 title in respect of the schedule immovable property under registered sale deed dated 19.7.1980 executed by Huchaiah to the extent of 1 acre 1 gunta of land with the similar boundaries as indicated in the schedule therein of Ramakka title and possession relates back to the registered sale deed of the year 1980 and she has been in uninterrupted continuous possession without there being any disturbance. It is further contended that there has been civil disputes pertaining to the property and those disputes are pending adjudication before the City Civil Court, Bengaluru city, pertaining to land, Sy.No. 37 and 38/1 of Laggere village which is numbered as Sy.No. 37/1 and 37/2 and 38/1A, 38/1B, which is the document notified in the mutation, akarbandh, durast pertaining to the sub-division of the property. Thereafter on cancellation to Hissa Tippani 5 book pertaining to Sy.No.37 of Laggere village, Yeshwanthpura hobli, title is indefeasible title.
3. It is further contended that the vendor of the plaintiff Ramakka has been in possession of the property until she conveyed title and possession of the suit schedule property to the plaintiff. It is further contended that Hutcha Hanumaiah stated to be a person who litigated upon the property and he initiated original suits in O.S.No.3360/1989, O.S.No.7032/1992 and O.S.No.3537/1995 and the said Hutcha Hanumaiah died on 1.6.2002. Despite there were several litigations that cropped in pertaining to the immovable property, because of the properties that are described have been developed and thereafter when its development took place, the properties have now been undertaken for the purpose of layout being formed and 6 possession having been delivered. It is further contended that by virtue of the several litigations, the plaintiff in accompanying suit as referred to above, wrote to the Commissioner, BBMP not to effect Khatha or sanction plan to put up construction in the entire extent of land Sy.No. 37/2 and 38/1B of Laggere village, Yeshwanthpura hobli, now within J.C.Nagar. It is further contended that in view of the Khatha not being made, defendants took illegal, unlawful act of dispossessing the plaintiff's possession in respect of the property. In order to dispossess the plaintiff the defendants have filed caveat. That itself evidences the illegal, unlawful act of the dispossession, high- handedly undertaken by the defendants. It is further contended that the said illegal, high-handed dispossession having taken, construction being 7 undertaken without getting the sanction plan and unauthorised construction and thereafter dispossessing the plaintiff. Each of the defendants have divided the property into two parts, eastern and western, filed separate caveats and made act of dispossession. Under the circumstances the plaintiff left with no alternative is seeking restoration of possession in respect of the suit schedule immovable property dispossessed the plaintiff on 16.11.2011. So the plaintiff has come up with the present suit. In view of his above contentions and other contentions taken in the plaint he prays for to decree the suit.
4. The suit summons sent by this court was duly served upon the defendant No. 1 and 2 and they have appeared before the court through their counsel and 8 filed their detailed written statement by denying all the plaint averments.
5. The defendants in the written statement contended that the suit filed by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine. They further contended that on 8.11.2011 the 1 st defendant herein purchased the residential vacant site bearing No. 14 (western portion) measuring to an extent of east to west 15 feet and north to south 40 feet situated at BBMP, ward No. 75, J.C. Nagar, 22 nd main road, earlier suit property was part and parcel of Sy.No. 211 and 212 (old) 37/2 and 38/1B (new) later layout is formed and 2 nd defendant herein purchased the eastern portion of the site bearing No. 14 on 3.6.2011 with the boundaries mentioned therein. It is further contended 9 that the defendants after verification of the earlier documents of title pertaining to the properties and after knowing that their vendors having good and marketable title over the same have executed registered sale deeds. It is further contended that as per the scrutiny of the documents of title the defendants came to know that the original land bearing Sy.No. 37/2, 38/1B and 39 belongs to one Hutcha Hanumappa @ Hutcha Hanumaiah who was resident of Shivanahalli, Bengaluru. He acquired the above said properties in the year 1950-52. It is further contended that Hutcha Hanumappa passed away in the year 2002 leaving behind his only son H.Krishnappa to succeed his estate. It is further contended that during the life time of Hutcha Hanumaiah he formed revenue layout in the land bearing Sy.No. 211 and 212 (old) 37/2 and 38/1B 10 (new) after his death his son H.Krishnappa on 22.3.2007 sold the residential property bearing No. 14 in favour of Nazeema Sultan D/o Fakruddin measuring east to west 30 feet, north to south 40 feet with boundaries mentioned therein.
6. It is further contended that the said Nazeema Sultan on 3.6.2011 sold eastern portion of the property bearing site No.14 measuring east to west 15 feet north to south 40 feet with boundaries mentioned there in favour of S.B.Indramma, the 2 nd defendant herein. It is further contended that on 3.6.2011 on the same day Nazeema Sultan sold remaining eastern portion in property No. 14 in favour of Syed Nayeem. The above said Syed Nayeem in turn on 8.11.2011 sold his property in favour of 1 st defendant herein. The revenue documents pertaining to property purchased by 11 these documents have transferred into their names and they are in peaceful possession and enjoyment of the same. It is further contended that the 2 nd defendant after purchasing the above said property has put up ACC roofed residential building in her property and got electricity connection. The 1 st defendant has put up RCC roofed residential building in the portion which he has purchased. The plaintiff do not have any right, title or ownership over the properties of these defendants. The defendants have purchased the properties as referred above after verification of documents of title over the said properties. It is further contended that the vendors of the defendant as on the date of sale deed were having good marketable title over the properties which they have sold in favour of the defendants. It is further contended that the 12 plaintiff has not properly valued the suit and the court fee paid by the plaintiff is insufficient. In view of their above contentions and other contentions taken in the written statement they prays for to dismiss the suit.
7. The learned counsel for the plaintiff and the learned counsel for the defendant filed their written arguments.
8. The learned counsel for the plaintiff in support of his arguments has relied upon the following decisions:
(1) AIR 1973 Kar page 276 (2) (2003) ILR Kar page 3042 13
9. On the basis of the above rival pleadings of the parties this court has framed the following as many as 6 issues.
(1)Whether the plaintiff proves that he is the owner of the suit property ?
(2)Whether plaintiff proves that he was illegally dispossessed from the suit site by the defendants ?
(3)Whether plaintiff proves that
defendants are liable to pay
damages ?
(4)Whether suit is not properly valued and court fee paid is insufficient ?
(5)Whether plaintiff is entitled to the reliefs sought for ?
(6)What order or decree ?
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10. The plaintiff in order to establish his case he himself got examined as PW1 and got marked 40 documents from Ex.P1 to Ex.P40 and also got examined one witness as PW2 and closed his side evidence. The defendants in order to establish their case the defendant No. 1 himself got examined as DW1 and got marked 5 documents from Ex.D1 to Ex.D5. The defendant No. 2 on her behalf examined her General Power of Attorney holder as DW2 and got marked two documents as Ex.D6 and Ex.D7.
11.. My findings to the above issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
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Issue No.6 : As per the final order
for the following:
REASONS
12. Issue No.1 & 2: Since both these issues are
inter-connected as such they are taken up together for common consideration and discussions in order to avoid repetition of facts and also for the sake of convenience.
13. The plaintiff in order to establish his case he himself got examined as PW1 and filed his affidavit evidence by way of examination-in-chief. The perusal of the affidavit evidence of PW1 would show that it is nothing but repetition of plaint averments, as such there is no need to again state the said facts herein. The plaintiff in support of his case got marked 40 documents from Ex.P1 to Ex.P40. In view of his oral 16 and documentary evidence he prays for to decree the suit.
14. The plaintiff in order to establish his case also got examined one witness as PW2. The perusal of the evidence of this PW2 would show that he claims to be the owner of site No. 49, old Khatha No. 213 and present Khatha No. 39 in site No. 8. The perusal of the evidence of PW2 would show that he has supported the case of plaintiff.
15. The defendant No. 1 in order to establish his case he himself got examined as DW1 and filed his affidavit evidence by way of examination-in-chief. The perusal of the affidavit evidence of DW1 would show that it is nothing but replica of his written statement averments, as such there is no need to again repeat the 17 same facts herein. The defendant No. 1 in support of his case got marked five documents from Ex.D1 to Ex.D5. In view of his oral and documentary evidence he prays for to dismiss the suit .
16. The defendant No. 2 in order to establish her case the General Power of Attorney holder of her got examined as DW2 and filed his affidavit evidence by way of examination-in-chief. The perusal of affidavit evidence of DW2 would show that it is nothing but repetition of his written statement averments, as such there is no need to repeat the same facts again herein. DW2 in support of his case got marked two documents as Ex.D6 and Ex.D7. In view of his oral and documentary evidence he prays for to dismiss the suit. 18
17. The learned counsel for the plaintiff in his written arguments contended that the plaintiff has filed the present suit seeking the relief of declaration, possession, perpetual injunction and damages. He further contended that the plaintiff is the absolute owner of site No. 50, Khatha No. 39, assessment No.39 situated at Laggere village, Yeshwanthpur hobli, Bangalore north taluk, measuring east to west 30 feet and north to south 40 feet. He further contended that the plaintiff has purchased the suit schedule property from Ramakka under registered sale deed dated 20.11.2004. In order to substantiate his contention he placed his reliance upon Ex.P1. He further contended that the vendor of the plaintiff Ramakka executed General Power of Attorney and original affidavit in favour of one Ravi and on the strength of the same the 19 said General Power of Attorney holder of Ramakka executed Ex.P1 sale deed in respect of the suit schedule property in favour of plaintiff. In order to substantiate his contention he placed his reliance upon Ex.P2 General Power of Attorney and Ex.P3 original affidavit of Ramakka. He further contended that the vendor of the plaintiff Ramakka acquired the suit schedule property under registered sale deed dated 19.7.1980 executed by one Hutchaiah to the extent of 1 acre 1 gunta of land. In order to substantiate his contention he placed his reliance upon Ex.P4 certified copy of the above referred registered sale deed. In order to substantiate his contention the property belongs to Ramakka and she has sold the same in favour of plaintiff through her General Power of Attorney holder the learned counsel for the plaintiff 20 has placed his reliance upon Ex.P5 and Ex.P6 which are the encumbrance certificates. He further contended that the very certified copy of the sale deeds produced at Ex.P7, Ex.P8, Ex.P10 and gift deed at Ex.P11 would show that they are the properties located in the area where the suit schedule property is located.
18. He further contended that there has been civil disputes pertaining to the property and those disputes are pending adjudication before the City Civil Court, Bengaluru city pertaining to land bearing Sy.No. 37 and 38/1 of Laggere village, which is numbered as Sy.No. 37/1, 37/2, 38/1A and 38/1B, which is the documents notified in the mutation, akarbandh, durast, pertaining to the sub-division of the property. Thereafter on cancellation of Hissa Tippani book, Sy.No. 37, Laggere village, Yeshwanthpura hobli, 21 Bengaluru north taluk. He further contended that Ramakka who is the vendor of the plaintiff has been in possession of the suit schedule property only she conveyed title and possession of the property to the plaintiff. He further contended that Hutcha Hanumaiah stated to be the person who has continued litigation in respect of the property and he filed O.S.No.3360/1989, O.S.No.7032/1992 and O.S.No.3537/1995. He further contended that the said Hutcha Hanumaiah died on 1.6.2002 leaving behind him the litigations and thereafter proceedings have now been undertaken for the purpose of layout being formed and possession has been delivered. He further contended that for the purpose of construction high-handed dispossession being undertaken without got sanction plan put up unauthorised construction and thereafter dispossessing 22 the plaintiff. Each of the defendants have divided the property into two parts eastern and western filed separate caveats and made the acts of dispossession. So the plaintiff left with no alternative is seeking restoration in respect of the schedule immovable property dispossessed on 16.11.2011.
19. He further contended that the plaintiff has produced Ex.P7, i.e., certified copy of the sale deed executed by Parvathamma in favour of K.Nagaraj in respect of site No. 8, situated towards eastern side of the suit schedule property, i.e., in favour of PW2, who has been examined as witness on behalf of the plaintiff. He further contended that in respect of the said site there was litigation between the parties in O.S.No.9383/2007 and the said suit was decreed. In order to substantiate his contention he placed his 23 reliance upon Ex.P39 the judgment passed in the above referred suit. So what he contended that the above said judgment passed in the above referred original suit would clearly indicates that his property is located nearby the suit schedule property and the said Nagaraj has been examined as PW2 in the present suit and he has totally supported the case of the plaintiff. What he contended that the evidence given by PW2 would show that he has stated before the court that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property. He further contended that the plaintiff has also produced certified copy of the sale deed dated 8.11.1950 at Ex.P15. The same was executed by Venkatamma in favour of Hutcha Hanumaiah in respect of Sy.No. 39 of Laggere village, Bengaluru north taluk with the boundaries mentioned 24 therein. So what he contended that the said document itself would clearly goes to show that the vendor's vendor of plaintiff was having absolute right in respect of Sy.No. 39 and then in turn he has sold the same in favour of Ramakka under registered sale deed dated 19.7.1980 to the extent of 1 acre 1 gunta as per Ex.P4 and then the said Ramakka executed sale deed in respect of suit schedule site No. 50 in favour of plaintiff under Ex.P1 registered sale deed. So what he contended that the above said judgment passed in the above referred original suit would clearly indicates that his property is located nearby the suit schedule property and the said Nagaraj has been examined as PW2 in the present suit and he has totally supported the case of the plaintiff. What he contended that the evidence given by PW2 would show that he has stated 25 before the court that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property. He further contended that the above document as referred above coupled with Ex.P12 to Ex.P14 encumbrance certificates and also coupled with the evidence of PW2 would clearly shows that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property. Inspite of the same the defendants without having any manner of right and possession in respect of the suit schedule property dispossessed the plaintiff from the suit schedule property on 16.11.2011 and without obtaining licence or permission from the concerned authorities put up construction in the eastern and western portion of the suit schedule property by got dividing equally the suit schedule property.
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20. He further contended that Ex.P16 is the order passed by the DDLR in Appeal No. 4/1989-90, Ex.P17 is the certified copy of the order passed in Revision Petition No. 32/1998-99, Ex.P18 is the certified copy of the order passed in Appeal No. 2/2007-2008 and Ex.P19 is the certified copy of the layout plan. By placing his reliance upon the above referred documents what he contended that if the above said documents read cumulatively would show that the property of the plaintiff is identifiable and is entitled for the relief as sought in the present suit. He further contended that the defendant No. 1 and 2 have mainly relied upon Ex.D1 sale deed dated 22.3.2007 and Ex.D2 sale deed dated 3.6.2011 relating to the eastern and western portion of site No. 14 respectively. Ex.D3 is the certified copy of the sale deed dated 8.11.2011 27 executed by Syed Nayeem in favour of K.Raghavendra, i.e., 1 st defendant. The schedule of the property would indicate that this property goes with the title and the defendants got title from 22.3.2007 as a flow of title. He further contended that in the above referred documents of the defendants it is mentioned as old Sy.No. 211 and 212 and present Sy.No. 37/2 and 38/1B. If the said two survey numbers are taken into consideration and if the said documents are read along with Ex.P16 dated 30.9.1998, i.e., the order of DDLR would show that the authorities in Ex.P16 order hold that Sy.No. 211 and 212 are not in existence at all. As such the documents of the defendants as referred above, i.e., Ex.D1 and Ex.D2 does not confer any right in respect of the property claimed by them. So also the said order passed at Ex.P16 to Ex.P18 would show 28 that the claim of the defendants rendered is not available for dispossessing the plaintiff and thereafter proceeding to put up construction during the pendency of the present suit. He further mainly contended that the very Ex.P19 certified copy of the layout plan would clearly shows that the property claimed by the plaintiff in the present suit is identifiable, as such the plaintiff is entitled for the reliefs as sought by him.
21. The learned counsel for the plaintiff further contended that the gamete of the whole case of the plaintiff is on the basis of the analysis of the documents placed before the court. What he contended that the careful analysis of the documents placed before the court by the plaintiff indicates that the identification of the suit schedule property cannot be disputed. He further contended that the identification 29 of the suit schedule property can be examined from the proceedings in Ex.P16, wherein one Basavarajaiah and D.R.Rajashekar approached the appropriate authority and the order went against Hutcha Hanumaiah. He further contended that the operative portion of the order indicates that the said order was questioned before the Director of Survey settlement and land records, Karnataka in case No. RVN 32/98-99 as per Ex.P17. The careful perusal of the order would indicate that the implementation will have to be undertaken in regard to the contentions raised. He further contended that Ex.P18 is the order in Appeal No. 2/2007-2008 and the perusal of the said order would clearly shows that there is confirmation of the properties and that identification of the property is appropriate to be identified in Ex.P19, i.e., layout sketch. He further 30 contended that the layout sketch and the property of plaintiff in terms of Ex.P1 and the schedule referred therein consistent in schedule of Ex.P2 to Ex.P4, Ex.P7 and Ex.P8 would indicate the property purchased by the defendant and defendant himself has miserably failed, i.e., defendant No. 1 who was in revenue proceedings unable to identify his property, made forcible entry and forcible possession of the property. He further contended that the judgment and decree passed in Ex.P39 pertaining to site No. 8 and on the western side of the said property is Ramakka namely plaintiff properties, eastern side site No. 8 is effectively decided by the court. He further contended that the judgment rendered in Ex.P40 case holds that Hutcha Hanumaiah has no right or interest in the properties involved in the said suit. He further contended that 31 the very photographs and negatives produced by the plaintiff at Ex.P20 to Ex.P37 would clearly shows forcible dispossession of the plaintiff from the suit schedule property and proceedings with the construction, the defendants are impatient of being un- successful in identification of his property under the registered sale deed referred to in the defendants documents and thereafter contesting the case. He further contended that the alleged sale deed of the defendants are of the subsequent sale deeds, whereas the plaintiff sale deed is of 2004, i.e., to say earlier to the sale deed of the defendant No. 1 and 2. When that would be the case subsequent sale do not confer title or possession, priority of title and possession of property are paramout. In support of his contention he placed his reliance upon the following decisions: 32
(1) AIR 1973 Kar page 276 between Azeezulla Sheriff and others Vs. Bhabhutimul.
(2) 2003 ILR (Kar) page 3042 between Veerabhadrappa and another Vs. Jagadishgouda and others.
22. So by relying upon the above decisions what he contended that the defendants on the basis of the alleged subsequent sale deeds would not get valid title. He further contended that the defendants are trying to hold the property to the effect that the plaintiff is a poor person, plaintiff has no muscle power or money power forcible dispossession and the construction will protect his property in the eye of law. He further contended that the defendants in the written statement not pleaded neither equity nor investment is pleaded except admitted that they have put up construction and 33 the said construction is unauthorised one, as the same was done without sanction plan from any appropriate authority or authorities. So he contended that the over all oral and documentary evidence and also in the light of the dictum laid down in the above referred decisions the plaintiff is entitled for the reliefs as sought by him. He further contended that justice, equity and good conscious are the three pillars rendering justice and justice may be done to the plaintiff in getting back his property. So in view of his above arguments and decisions he urged to answer issue No. 1 and 2 in the Affirmative.
23. The learned counsel for the defendants in his written arguments contended that the plaintiff has filed the present suit seeking the relief of declaration, possession and other reliefs in respect of site bearing 34 No. 50, Khatha No. 39, assessment No. 39 situated at Laggere village, Yeshwanthapura hobli, Bengaluru north taluk, measuring east to west 30 feet and north to south 40 feet. He further contended that the plaintiff claims that he has purchased the suit schedule property from one Ramakka under registered sale deed dated 20.11.2004 and in turn Ramakka purchased the suit schedule property from Hutcha Hanumaiah under registered sale deed dated 19.7.1980. He further contended that the plaintiff claims that he is in possession of the property and further he is contending that several litigations pending adjudication pertaining to the land bearing Sy.No. 37, 38/1 of Laggere village which is numbered as Sy.No. 37/1, 37/2, 38/1A and 38/1B. So the plaintiff contending that he has not applied for Khatha and also requested the BBMP 35 authorities not to effect Khatha in respect of the above referred property and also not to sanction any plan to put up construction in the entire extent of land in Sy.No. 37/2 and 38/1B of Laggere village. He further contended that the defendants in their written statement contending that the land bearing Sy.No. 211 and 212, new Sy.No. 37/2 and 38/1B measuring to an extent of 32 guntas and 10 guntas situated at Laggere village, Yeshwanthpura hobli, Bengaluru north taluk, originally belongs to one Hutcha Hanumaiah @ Hucha Hanumappa and the same is acquired from one Ankappa under registered sale deed dated 15.9.1952. He further contended that Hutcha Hanumappa @ Hucha Hanumaiah has also acquired Sy.No. 213, new Sy.No. 39 measuring to an extent of 4 acres 2 guntas from one Venkatamma under registered sale deed dated 36 8.11.1950. Thereafter all the revenue documents were changed in the name of Hutcha Hanumaiah and later he has formed layout in the above said survey numbers. It is further contended that on 22.3.2007 after the death of Hutcha Hanumappa @ Hucha Hanumaiah his son by name Krishnappa executed registered sale deed in favour of one Nazeema Sultan D/o Fakruddin in respect of property bearing No. 14 in old Sy.No. 211 and 212, new Sy.No. 37/2 and 38/1B, measuring east to west 30 feet and north to south 40 feet. In order to substantiate his contention he placed his reliance upon Ex.D1 certified copy of the above referred sale deed. He further contended that subsequently on 3.6.2011 Nazeema Sultan executed sale deed in favour of one Syed Nayeem in respect of western portion of property bearing No. 14 measuring 37 east to west 15 feet and north to south 40 feet. Subsequently the said Syed Nayeem executed absolute sale deed. The property purchased by him as referred above in favour of 1 st defendant under registered sale deed dated 8.11.2011. In order to substantiate his contention he placed his reliance upon Ex.D3 certified copy of the above referred sale deed. He further contended that from the date of purchase till this date the 1 st defendant was / is in possession and enjoyment of the western portion of the property bearing No. 14 in Sy.No. 37/2 and 38/1B. He further contended that the 1 st defendant has mortgaged the western portion of the schedule property as referred above to Bharath Credit Co-operative Society Limited for a sum of Rs.10,00,000/- and after receiving the loan amount the 1 st defendant has put up three floor RCC roof building 38 in the western portion of suit schedule property and the same is let out to tenants. In order to substantiate his contention the 1 st defendant has mortgaged the above referred western property to the above referred co-operative society, the learned counsel for the defendant placed his reliance upon Ex.D4, certified copy of the mortgage deed dated 17.4.2012.
24. He further contended that Nazeema Sultan has executed absolute sale deed dated 3.6.2011 in favour of 2 nd defendant in respect of eastern portion of property bearing No. 14, measuring east to west 15 feet and north to south 40 feet. The 2 nd defendant from that day onwards was / is in possession of eastern portion of property bearing No. 14 in Sy.No. 37/2 and 38/1B of Laggere village and she has put up ACC roof building in the eastern portion of suit schedule 39 property and she is residing therein. In order to substantiate his contention he placed his reliance upon Ex.D2, i.e., certified copy of the above referred sale deed. He further contended that the plaintiff in order to establish his case he himself got examined as PW1 and got marked 40 documents and also got examined one witness as PW2. The defendant No. 1 himself got examined as DW1 and got marked five documents from Ex.D1 to Ex.D5 and the General Power of Attorney holder of defendant No. 2 himself got examined as DW2 and got marked two documents as Ex.D6 and Ex.D7. He further contended that the plaintiff has relied upon the alleged Ex.P1 sale deed executed by one C.Ravi the General Power of Attorney holder of Ramakka in his favour. He further contended that in Ex.P1 the schedule site number is mentioned as 50, 40 assessment No. 39, Khatha No. 39 of Laggere village, Yeshwanthapura hobli. He further contended that Ex.P2, i.e., General Power of Attorney and Ex.P3 affidavit executed by Ramakka in favour of Ravi both dated 30.3.1990. He further contended that in Ex.P2 schedule also it is mentioned as out of Sy.No. 39 measuring 1 acre 1 gunta site No. 50. So also in Ex.P2 in the schedule i.e., to say in the boundaries there is some correction and insertion in different typing words. So also in Ex.P3 at page No. 1 there is correction. In correction part of both above referred documents no signature obtained from the concerned party. So what he contended that Ex.P2 and Ex.P3 documents are created documents for the purpose of filing the present suit and for the convenience sake of 41 plaintiff in order to knock of the suit schedule property which belongs to the defendants.
25. The learned counsel for the defendants in his written arguments contended that Ex.P4 is the sale deed dated 26.3.1980 executed by Hutcha Hanumaiah in favour of one Ramakka. In Ex.P4 in the schedule it is mentioned as Sy.No. 39 measurement is mentioned as 1 acre 1 gunta and in the said sale deed site number is not mentioned. So what he contended that Ex.P4 document is in respect of Sy.No. 39, but not in respect of Sy.No. 37/2 and 38/1B of Laggere village. He further contended that in the above referred document at page No.1, 7 th line date is mentioned as 8.1.1959. But admittedly the plaintiff has not produced the said document before the court. He further contended that the plaintiff has relied upon 42 Ex.P15, which is the certified copy of the sale deed dated 8.11.1950 and the said document would not support the stand taken by the plaintiff. He further contended that the plaintiff has produced the copy of the sketch and the same is marked as Ex.P19. He further contended that the said Ex.P19 is not approved layout sketch / plan and there is no seal and signature of the concerned issuing authority. He further contended that even for a moment sketch is taken into consideration, wherein it is taken into consideration towards eastern side site No. 49, western side site No. 51 and southern side site No. 57 and northern side road is mentioned, but admittedly the plaintiff has not produced any single document pertaining to site No. 49, 51 and 57 before this court. The plaintiff has produced Ex.P7, i.e., certified copy of the sale deed 43 and the said document is pertaining to Sy.No. 39 and property No. 8. Ex.P8 is also certified copy of the sale deed wherein the survey number is mentioned as 39 and measurement of the said property is mentioned as 1 acre 1 gunta and there is no property number. So also Ex.P10 is the certified copy of the sale deed wherein the survey number is mentioned as 39 and measurement of the said property is mentioned as 1.1 gunta and even in the said document also there is no property number. He further contended that even Ex.P11 certified copy of the gift deed wherein it is mentioned as Sy.No. 39 and property No. 5. So what he contended that Ex.P7, Ex.P8, Ex.P10 and Ex.P11 are not related to Sy.No. 37/2 and 38/1B of Laggere village, Yeshwanthapura hobli, Bengaluru north taluk. So he contended that the identity of the suit schedule 44 property is completely is in dispute and the property No. 50, i.e., site No. 50 claimed by the plaintiff is no where situated either in Sy.No. 37/2, 36/1B and 39 of Laggere village and the above referred document would not tally with Ex.P19, sketch / plan. He further contended that the plaintiff has produced so many other documents at 'P' series, but those documents are not related to the suit schedule property and admittedly the suit schedule property belongs to the defendants. He further contended that the suit schedule property is situated in old Sy.No. 211, 212, new Sy.No. 37/2 and 38/1B of Laggere village. The suit schedule property is not at all situated in old Sy.No. 213, new Sy.No. 39 of Laggere village. He further contended that the plaintiff claims that he purchased the suit schedule property through registered 45 sale deed dated 20.11.2004 as per Ex.P1, but he has not produced Khatha and tax receipt pertaining to the suit schedule property. He further contended that the plaintiff has not produced single document to show that he has applied for Khatha in respect of the suit schedule property in his name. Even the plaintiff has also not produced the previous vendors Khatha, tax paid receipts and other documents pertaining to the suit schedule property and he has not produced layout plan. So what he contended that when there is no Khatha in respect of the suit schedule property in the name of plaintiff, the question of plaintiff is / was in possession of the suit schedule property does not arise at all, as because Khatha reflects possession. He further contended that the plaintiff in support of his case got examined one witness as PW2. Even the 46 evidence of the said witness would show that in no way it would goes to helpful to the case of plaintiff, i.e., to say he is the owner of the suit schedule property and he was illegally dispossessed by the defendants. Even PW1 in his cross-examination admits that he has not produced relevant documents in support of his case. So what he contended that the plaintiff has utterly failed to prove his case. Per contra the defendants being the absolute owners of the suit schedule property are in peaceful possession and enjoyment of the same and the documents produced by the defendants at Ex.D1 to Ex.D7 would clearly supports the stand taken by them in the written statement. So in view of his above arguments he urged to answer issue No. 1 and 2 in the Negative. 47
26. In the light of the written arguments submitted by the respective counsels for the parties I have gone through the records and also the decisions relied upon by the learned counsel representing the plaintiff. Admittedly this is a suit filed by the plaintiff seeking the relief of declaration, possession, perpetual injunction and for damages.
27. The plaintiff has filed the present suit to declare him as the absolute owner of the suit schedule property bearing Sy.No. 50, Khatha No. 39, assessment No. 39, situated at Laggere village, Yeshwanthapura hobli, Bengaluru north taluk, measuring east to west 30 feet and north to south 40 feet with the boundaries mentioned therein. The plaintiff claims that he has acquired the suit schedule property under Ex.P1 registered sale deed dated 48 20.2.2004 from Ramakka. It is the contention of the plaintiff that his vendor Ramakka acquired the suit schedule property from one Hutcha Hanumaiah under registered sale deed dated 19.7.1980 as per Ex.P4. It is the contention of the plaintiff that his vendor Ramakka executed General Power of Attorney and affidavit in favour of one C.Ravi. The said person on the strength of Ex.P2, General Power of Attorney and Ex.P3 affidavit executed Ex.P1 sale deed in respect of the suit property in favour of the plaintiff. It is the contention of the plaintiff that several litigations pertaining to the land bearing Sy.No. 37 and 38/1 of Laggere village which is numbered as Sy.No. 37/1, 37/2, 38/1A and 38/1B are pending adjudication before the City Civil Court. So the plaintiff has not applied for Khatha and also intimated the concerned 49 authorities, i.e., to say the BBMP not to effect Khatha in respect of the above sites and also sanction plan to put up construction, i.e., to say in the entire extent of land in Sy.No. 37/2 and 38/1B of Laggere village. It is the contention of the plaintiff that the vendor's vendor of plaintiff, i.e., Hutcha Hanumaiah died on 1.6.2002 leaving behind him the litigation and his son by name Krishnappa. It is the contention of the plaintiff that since he has informed the BBMP authorities not to enter Khatha pertaining to the property as referred above and also issued any sanction plan to put up construction, the defendants high-handedly dispossessed him from the suit schedule property and undertaken construction work without getting sanction plan and the defendant No. 1 and 2 divided the property into two parts, i.e., eastern and western portion. So he 50 contended that the defendants dispossessed him from the suit schedule property on 16.11.2011. So the plaintiff has come up with the present suit seeking the relief of declaration to declare him as the absolute owner of the suit schedule property and to direct the defendant to handover the possession of the suit schedule property and such other consequential reliefs.
28. The learned counsel for the plaintiff contended that the gamete of the whole case of the plaintiff is on the basis of the analysis of the documents placed before the court. The learned counsel for the plaintiff mainly high-lighted on the documents produced at Ex.P16, i.e., the certified copy of the order passed by DDLR, Ex.P17 certified copy of order passed in Revision Petition No.32/98-99, Ex.P18, certified copy of the order passed in Appeal No. 41/2001-2002 and also 51 relied upon the certified copy of the layout plan produced at Ex.P19. The learned counsel for the plaintiff has also focused his attention on Ex.P7, Ex.P8, Ex.P10 those are certified copies of the sale deed relating to some other site numbers and Ex.P11 certified copy of the gift deed which is relating to site No. 5. The learned counsel for the plaintiff by placing his reliance upon the above referred documents contended that Sy.No. 211 and 212 are not at all in existence. When such would be the case the question of giving new survey number to the said old survey number, i.e., Sy.No. 37/2 and 38/1B does not arise at all. He further contended that the very order passed in Appeal No. 2/0708 at Ex.P18 would show that the case set up by the defendants cannot be accepted and the very order passed by DDLR as per Ex.P16 would 52 show that Sy.No. 211 and 212 are not at all in existence. Per contra the very documents produced by the plaintiff, i.e., to say the certified copy of the sale deed and the certified copy of the gift deed as referred above would show that they are located nearby the suit schedule property. The learned counsel for the plaintiff further contended that the plaintiff in support of his case examined one witness as PW2 who is the owner of old site No. 49, old Khatha No. 213 and present Khatha No. 39 and new site No. 8. What he contended that PW2 is the adjacent owner of the suit schedule site No. 50. So he contended that the above referred document and the evidence of PW2 would clearly shows that the plaintiff being the absolute owner is / was in possession of the suit schedule property and he was dispossessed from the suit 53 schedule property on 16.11.2011 by the defendants. He further contended that the very documents produced by the plaintiff at Ex.P20 to 37, i.e., the photos and negatives would show the illegal construction undertaken by the defendants after dispossessing him from the suit schedule property on 16.11.2011. He further contended that the plaintiffs have produced the judgment rendered in O.S.No.9383/2007 at Ex.P39 and also the judgment rendered in O.S.No.3360/1999 at Ex.P40. He further contended that the perusal of the judgment and decree passed in the above referred suit would clearly shows that the same are going to falsify the stand taken by the defendants. So he contended that the evidence on record would show that the plaintiff is entitled for the reliefs as sought by him in the present suit.
54
29. In the light of the above contention taken by the learned counsel for the plaintiff, I have gone through the records and also in the beginning itself it is stated that the plaintiff has filed the present suit in respect of the property bearing site No. 50 as detailed in the plaint schedule. So also the plaint schedule would show that it comes in Sy.No. 39. The very sale deed relied upon by the plaintiff at Ex.P1 would show that and also the sale deed of the vendor of the plaintiff, i.e., Ramakka would show that wherein survey number is mentioned as 39 and even in the said sale deed site number is not mentioned. So also the perusal of Ex.P2 General Power of Attorney executed by Ramakka in favour of C.Ravi and affidavit executed by her in favour of C.Ravi would show that wherein the survey number of the property is mentioned as 39. 55 As it is already stated above the plaintiff in support of his case has produced certified copy of the sale deed at Ex.P7, Ex.P8, Ex.P10 and certified copy of the gift deed at Ex.P11. Even the perusal of the said documents would show that wherein the survey number is mentioned as 39. The perusal of Ex.P7 it would show that it is pertaining to site No. 8, Ex.P8 certified copy of the sale deed would show that wherein survey number is mentioned as 39, but the site number is not mentioned. Even in Ex.P10 the survey number is mentioned as 39, there is no property number and in Ex.P11 certified copy of the gift deed wherein Sy.No. mentioned as 39 and site number mentioned as 5. So the point to be taken note of here is that the plaintiff claims site No. 50 comes in Sy.No.
39. But admittedly to prove the said aspect no 56 acceptable evidence has been placed before the court. The plaintiff has not produced the certified copy of the sale deeds which are located nearby the suit schedule property, i.e., to say the sale deed of the persons mentioned in the plaint schedule. The learned counsel for the plaintiff much relied upon Ex.P19, i.e., layout plan / sketch and that itself would clearly goes to identify the suit schedule property. I have gone through Ex.P19 certified copy of the plan / sketch. The perusal of the said document as rightly pointed out by the learned counsel for the defendants it does not bear the signature and seal of concerned issuing authority. So also the perusal of the said document would show that on the basis of the said document it would not be possible to identify where exactly the property claimed by the plaintiff, muchless the site No. 57 50 is located. When that would be the case it can be said that basically the evidence placed before the court by the plaintiff would clearly goes to show that he failed to identify where exactly his property is located.
30. Now coming to the contention taken by the learned counsel for the plaintiff with regard to the orders passed by the Revenue Authorities at Ex.P16 to Ex.P18. It is the contention of the learned counsel for the plaintiff that the very order as per Ex.P16 would show that Sy.No. 211 and 212 are not at all in existence and the order passed as per Ex.P18 would show that the cancellation of phods in Sy.No. 37. So he contended that Hutcha Hanumaiah has absolutely no right in respect of Sy.No. 211 and 212. What he contended that basically the said survey numbers are not at all in existence as per Ex.P16 order passed by 58 the Revenue authorities. When that would be the case the question of assigning new survey number, i.e., Sy.No. 37/2 and 38/1B to the above said survey numbers does not arise at all. He further contended that the defendants claims that on 22.3.2007 after the death of Hutcha Hanumappa @ Hucha Hanumaiah his son H.Krishnappa executed registered sale deed in favour of Nazeema Sultan D/o Fakruddin in respect of property bearing No. 14 in old Sy.No. 211 and 212, new Sy.No. 37/2 and 38/1B measuring east to west 30 feet and north to south 40 feet. So far as the said contention of the defendants is concerned what he contended that when there is already finding by the Revenue Authorities as per Ex.P16 there is no existence of Sy.No.211 and 212, the above contention of the defendants cannot be accepted and the said Nazeema 59 Sultan would not get any valid right in respect of the above said property and even the subsequent purchaser from her also would not get any valid title in respect of the suit schedule property. It is the contention of the learned counsel for the plaintiff that the sale deed of the plaintiff as per Ex.P1 is dated 20.11.2004 whereas the sale deed of defendant No. 1 and 2 as per Ex.D3 and Ex.D2 respectively are of the year 2011. What he contended that the sale deed of the plaintiff is an earlier one and the sale deed of the defendants are of the subsequent year. When there is already a registered document of sale subsequent sale do not confer any title or possession. In support of his contention he has relied upon two decisions reported in (1) AIR 1973 Kar page 276 and another decision reported in (2) (2003) ILR (Kar) page 3042. So he 60 contended that the defendants would not get any valid right in respect of the suit schedule property and the property of the plaintiff, i.e., site number 50 itself shown as site No. 14 by the son of Hutcha Hanumappa @ Hucha Hanumaiah and executed Ex.D1 sale deed in favour of Nazeema Sultan under Ex.D1 sale deed dated 22.3.2007.
31. So far as the above contention of the learned counsel for the plaintiff is concerned it can be said that though in Ex.P16 order passed by the Revenue Authorities according to him there is no existence of Sy.No. 211 and 212 and also the very order passed by the concerned Revenue Authorities as per Ex.P18 would show that the phods in Sy.No. 37 cancelled, but the point to be taken note of here is that Ex.P16 order was passed on 18.9.1998 and Ex.P18 order was passed on 61 15.11.2007. Inspite of Ex.P16 order was passed on 18.9.1998 the plaintiff after having acquired the suit schedule property under Ex.P1 sale deed has not made any attempt to get Khatha in his name in respect of the suit schedule property. Even perusal of the order passed by the Revenue Authorities as per Ex.P18 would show that though they have cancelled phod in Sy.No.37, but it was ordered to distribute Sy.No.37 in proportionate to respondent No. 2 of the said case. Admittedly the respondent No. 2 in the said case is Krishnappa, S/o Hutcha Hanumappa @ Hucha Hanumaiah, when that would be the case the contention of the learned counsel for the plaintiff that the legal heirs of deceased Hutcha Hanumappa @ Hucha Hanumaiah have absolutely no right in respect of Sy.No. 37 cannot be accepted. As it is already 62 stated above Ex.P18, order was passed on 15.11.2007. Even after passing of the said order in the year 2007, the plaintiff herein has not made any efforts to get change Khatha in his name in respect of the suit schedule property though he has purchased the property in the year 2004. Another important aspect to be taken note of here is that the plaintiff has not produced Khatha standing in the name of his vendor Ramakka or her vendor Hutcha Hanumappa @ Hucha Hanumaiah in respect of the suit schedule property claimed by him. Even except Ex.P1 sale deed he has not paid the tax in respect of the suit schedule property. So also PW1 has not produced any documents to show that his vendor or his vendor's vendor have paid tax in respect of the suit schedule property. Absolutely there is no explanation by the 63 plaintiff though there was an order by the concerned revenue authorities in the year 1998 that there is no existence of Sy.No. 211 and 212 and though he has purchased the property in the year 2004 why he has not made any attempts to get change Khatha in his name in respect of the suit schedule property. So also the very documents produced by the plaintiff at Ex.P18 the order passed by the Revenue Authorities would show that he has cancelled the phods in Sy.No.37 and thereafter also there is no explanation by the plaintiff why he has not made any attempts to get Khatha in his name in respect of the suit schedule property.
32. Another important aspect to be taken note of here is that the plaintiff has produced the certified copy of the sale deed dated Ex.P15 dated 8.11.1950. The perusal of the said document would show that the 64 same was executed by Venkatamma in favour of Hutcha Hanumappa @ Hucha Hanumaiah and wherein survey number of the property mentioned as 213 of Laggere village. So it can be said that the said document is not relating to Sy.No. 211 and 212. It is the specific contention of the defendants that Hutcha Hanumappa @ Hucha Hanumaiah has purchased property bearing old Sy.No.211 and 212, new Sy.No. 37/2 and 38/1B of Laggere village from Ankappa under registered sale deed dated 5.9.1952. It is the contention of the defendants that after the demise of Hutcha Hanumappa @ Hucha Hanumaiah his son Krishnappa executed sale deed as per Ex.D1 in favour of Nazeema Sultan in respect of site No. 14 in old Sy.No. 211 and 212, new Sy.No. 37/2 and 38/1B. With regard to the above said aspect the learned counsel for the defendants have put 65 questions to PW1 during the course of his cross- examination at page No. 11, 1 st para wherein he has stated as under:
" ಸರರರ ನನಬರರ 39 ರ ಒಟರಟ ವಸಸಸರರ ಗರಗತಸಲಲ . ಸರರರ ನನಬರರ 39 ಹರಚಚಹನರಮಯಯನಗರ ಸರಸರದರದ 1952 ರಲಲ ಹರಚಚಹನರಮಯಯ ಆ ಆಸಸಯನರನ ಖರಸದಸದದ ಅದನರನ ನನನರ ನರಗಸಡದರದಸನರ . ಆ ಬಗರಗ ನಶನನರ ಪ.15 ನರನ ಹನಜರರಪಡಸದರದಸನರ . ಹರಚಚಹನರಮಯಯ ಆ ಆಸಸಯನರನ ಅನಕಪಪನನದ ಖರಸದಸದದನರ . ಅದರಸ ರರಸಳರ ಹರಚಚಹನರಮಯಯ ಸರರರ ನನಬರರ 37/2, 38/1 ಬ ಆಸಸಯನರನ ಖರಸದಸದದರರ ಎನರನವವದರ ಗರಗತಸಲಲ . 1952 ರಲಲ ಹರಚಚಹನರಮಯಯ ಅನಕಪಪನನದ ಖರಸದಸದ ಆಸಸ 37/2, 38/1 ಬ ಎನರನವವದರ ನಜ . ಹರಚಚಹನರಮಯಯ ಹನಗಗ ಅನಕಪಪನ ನಡರರರ ಆಗರರವ ಕಕಯಪತಕವನರನ ನನನರ ಈ ದನರರಯಲಲ ಹನಜರರಪಡಸಲಲ ಎನರನವವದರ ನಜ ."
33. The above evidence given by PW1 in his cross- examination would clearly shows that he has admitted that Hutcha Hanumaiah purchased Sy.No. 37/2 and 66 38/1B in the year 1952 from Ankappa, but admittedly the said sale deed is not placed before the court. PW1 in his evidence as referred above stated that he has produced Ex.P50, as it is already stated above the said document is relating to Sy.No. 213 of Laggere village in old Sy.No. 211, 212, new Sy.No. 37/2 and 38/1B. When such would be the case whatever contention taken by the plaintiff that the defendants would not get any valid right and title in respect of the property purchased by them, muchless site No. 14, i.e., eastern and western portion cannot be accepted.
34. As it is already stated above the very plaint schedule would show that the plaintiff is claiming to be the absolute owner of site No. 50 in Sy.No. 39. But admittedly in Ex.P1 sale deed of the plaintiff, Ex.P2 General Power of Attorney and Ex.P3 affidavit 67 there is no mentioning of site number, only survey number mentioned as 39. Apart from that the perusal of Ex.P2 General Power of Attorney and Ex.P3 affidavit would show that there is some corrections made in the said two documents. Though the learned counsel for the defendants put question with regard to the said aspect to PW1, though he has denied the same, but the perusal of the said documents would clearly goes to show that in both Ex.P2 and Ex.P3 some corrections has been made by putting whitener and no signature have been obtained for having made correction in the said two documents. So far as the said aspect is concerned absolutely no acceptable explanation by the plaintiff. The plaintiff claims to be the absolute owner of site No. 50 in Sy.No. 39. The defendants contended that the site No. 14 comes in old Sy.No. 211 and 212, 68 new No. 37/2 and 38/1B. So also the defendants contended that Hutcha Hanumappa @ Hucha Hanumaiah has purchased the above referred survey number from Ankappa under sale deed dated 15.9.1952. Inspite of the said contention taken by the defendants and inspite of the defendants counsel putting question with regard to the said aspect to PW1 no effort has been made by the plaintiff to direct the defendants to produce the said document to prove the stand taken by him. So from the above said aspect it can be said that the plaintiff claims site No. 50, i.e., suit schedule site number which according to him is in Sy.No.39, whereas the defendants claim half portion each in Sy.No. 14, i.e., eastern and western portion which comes in old Sy.No. 211 and 212, new No. 37 and 38/1B. Though the plaintiff claims that the son of 69 Hutcha Hanumappa @ Hucha Hanumaiah by name Krishnappa by showing site No. 50, i.e., suit schedule property itself as site No. 14 sold to Nazeema Sultan as per Ex.D1 sale deed, but to prove the said aspect, i.e., to say the site No. 14 claimed by the defendants is itself site No. 50 absolutely no acceptable document has been placed before the court. So far as the contention of the learned counsel for the plaintiff defendant that the plaintiff sale deed is of the year 2004, whereas the sale deed of the defendants is of the year 2011 and subsequent sale deed would not confer any title to the purchaser and in support of his case he has relied upon two decisions as referred above. I have gone through the said decisions. The point to be taken note of here is that the claim of plaintiff is in respect of site No. 50, which comes according to him 70 in Sy.No. 39, whereas it is the specific stand of the defendants that their site No. is 14 which is in old Sy.No. 211 and 212, new Sy.No. 37/2 and 38/1B. When that would be the case and when there is serious dispute about the identification of the property, when absolutely there is no acceptable evidence to show where exactly the property of the plaintiff is located, the dictum laid down in the decisions relied upon by the learned counsel for the plaintiff cannot be made applicable to the present case in hand.
35. The plaintiff contended that the very documents produced by him at Ex.P20 to Ex.P37, i.e., photos and negatives would show that the defendants without obtaining any plan and licence from the concerned authorities by dispossessing him on 16.11.2011 proceeded with the construction work. So far as the 71 said contention of the plaintiff is concerned though the plaintiff contended that right from the date of acquiring the suit schedule property under Ex.P1 sale deed he was in possession of the suit schedule property, but to prove the said aspect not a scrap of paper has been placed before the court except Ex.P1 sale deed. As it is already stated above though the Revenue Authorities passed order as per Ex.P16 in the year 1998 and Ex.P18 order was passed in the year 2007, but even then also the plaintiff has not made any attempts to get change Khatha in his name in respect of the suit schedule property and paid taxes in respect of the same. On the basis of Ex.P20 to Ex.P37 photos it cannot be possible to say that much earlier to that the plaintiff was in possession of the property claimed by him and he was dispossessed by the 72 defendants on 16.11.2011. No doubt in this case also the defendants except producing the sale deeds at Ex.D2 and Ex.D3 to show that they have purchased half portion each in Sy.No. 14 under sale deed dated 3.6.2011 and 8.11.2011 respectively they have not produced neither sanction plan or licence or Khatha or tax paid receipts. But the point to be taken note of here the plaintiff himself in his plaint as well as in his evidence stated that since several disputes pertaining to Sy.No. 37 and 38 of Laggere village which is numbered as Sy.No. 37/1 and 37/2, 38/1A and 38/1B are pending in the City Civil Court, Bengaluru, as such he informed the BBMP authorities not to enter Khatha in respect of the disputed properties and not to issue any licence or sanction plan to put up construction. Under such circumstances it can be said that the defendants have 73 not obtained plan and licence from the concerned authorities and even they have not paid taxes. Per contra it is a fact that defendant No. 1 and 2 after having purchased site No. 14 under Ex.D2 and Ex.D3 both have put up construction in the suit schedule properties and even the said fact has been admitted by PW1 in his cross-examination. The very documents produced by defendant No. 1 at Ex.D4 certified copy of the mortgage deed dated 17.4.2012 would show that he has obtained loan of Rs.10,00,000/- from Bharath Credit Co-operative Society Limited. When that would be the case and when the defendant No. 1 and 2 have already staying in the properties purchased by them by putting up construction whatever the contention taken by the plaintiff that the defendants by dispossessing him from the suit schedule property on 16.11.2011 the 74 defendants started to put up construction in the suit schedule property cannot be accepted. As it is already stated above except Ex.P1 sale deed the plaintiff has not produced a scrap of paper before the court to show right from the date of purchasing the suit schedule property till the alleged date of dispossession he was in possession of the suit schedule property. So also there is absolutely no acceptable evidence has been placed before the court by the plaintiff that the defendants dispossessed the plaintiff illegally from the suit schedule property on the date as referred above.
36. Now coming to the judgments relied upon by the learned counsel for the plaintiff in the case referred at Ex.P39 and at Ex.P40. I have gone through Ex.P39 judgment and the said suit was filed by K.Nagaraj against the son and wife of Hutcha 75 Hanumappa @ Hucha Hanumaiah. The perusal of the said judgment would show that it is in respect of site No. 8, new No. 39, old Khatha No. 213. As it is already stated above the claim of the plaintiff is in respect of site No. 50 in Sy.No. 39, whereas the claim of the defendants is in respect of site No. 14 in old Sy.No. 211 and 212, new No. 37/2 and 38/1B. When that would be the case it is needless to say that the said judgment is not helpful to the case of plaintiff. Now coming to Ex.P40 judgment, and the perusal of the same would show that four matters are clubbed together and common judgment is passed. The perusal of the said judgment in O.S.No.3360/1989 would show that the legal heirs of Hutcha Hanumappa @ Hucha Hanumaiah are the plaintiffs. The perusal of the said judgment would show that the legal heirs of Hutcha 76 Hanumappa @ Hucha Hanumaiah filed the said suit in respect of Sy.No. 37/2 and 38/1B measuring 32 guntas and 10 guntas situated at Laggere village. The findings given in the said suit on issue No. 1 would show that the same was answered partly in the Affirmative. So it can be said that even in the said suit it is not denied that the Hutcha Hanumappa @ Hucha Hanumaiah and after his demise his legal heirs are absolutely not having any right in Sy.No. 37/2 and 38/1B. When that would be the case the contention of the learned counsel for the plaintiff that the son of Hutcha Hanumappa @ Hucha Hanumaiah by name Krishnappa has absolutely no right to sell site No. 14 under Ex.D1 in favour of Nazeema Sultan cannot be accepted. Under such circumstances on the basis of Ex.P40 judgment also the contention of the plaintiff that he is 77 the absolute owner of the suit schedule property and he has been dispossessed from the same by the defendants cannot be accepted. As it is already stated above basically there is serious dispute with regard to the identification of the suit schedule property claimed by the plaintiff. The evidence on record would show that absolutely there is no neither acceptable oral nor documentary evidence placed before the court where exactly the suit schedule property muchless the site No. 50 is located. So also absolutely there is no acceptable evidence placed before the court by the plaintiff the site No. 14 claimed by the defendants itself is site No. 50 as claimed by him. So also absolutely there is no acceptable evidence placed before the court to show right from the date of acquiring the suit schedule property, i.e., site No. 50, the plaintiff was in 78 possession of the suit schedule property till his dispossession on 16.11.2011. So also absolutely there is no acceptable neither oral nor documentary evidence to show that the defendants illegally dispossessed the plaintiff from the suit schedule property. When such would be the case the plaintiff is not entitled to the relief of declaration to declare him as the absolute owner of the suit schedule property. When absolutely there is no acceptable evidence to show that he was dispossessed illegally by the defendants, the question of directing the defendants to put him in possession of the suit schedule property does not arise. So by considering the over all oral and documentary evidence on record it can be said that the plaintiff has failed to prove issue No. 1 and 2. Accordingly issue No. 1 and 2 are answered in the Negative.
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37. Issue No. 3: The plaintiff contending that the defendants are in illegal possession of the suit schedule property, after dispossessing him from the suit schedule property on 16.11.2011. As it is already discussed in detail in issue No. 1 and 2 absolutely there is no acceptable evidence to show plaintiff is the absolute owner of the suit schedule property and he was in possession of the suit schedule property right from the date of purchasing the same under Ex.P1 sale deed till he was alleged to be dispossessed by the defendants on 16.11.2011. When that would be the case the contention of the plaintiff that the defendants are liable to pay damages does not arise at all. Accordingly issue No. 3 is answered in the Negative.
38. Issue No. 4: The defendants in the written statement contended that the plaintiff has not properly 80 valued the suit and the court fee paid by the plaintiff is insufficient. Though the defendants have contended like so in the written statement, but upon perusal of the written statement it would show that no where they have stated what is the required court fee to be paid by the plaintiff. Admittedly the plaintiff in the present suit sought for the relief of declaration, possession, injunction and damages. On the basis of the said reliefs sought by the plaintiff he has paid total court fee amount of Rs.39,425/- under section 24(a) and (b) and under section 26(c) of the Karnataka Court Fees and Suit Valuation Act, 1958, which is very evident from the valuation slip enclosed to the plaint. When such would be the case whatever the bald contention taken by the defendants cannot be accepted. Accordingly issue No. 4 is answered in the Negative. 81
39. Issue No. 5: In view of my findings to the above issues the plaintiff is not entitled for any reliefs muchless the reliefs as sought by him. Accordingly issue No. 5 is answered in the Negative.
40. Issue No.6: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 13th day of February 2020.) (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.82
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - B.R.Prakash PW2 - K.Nagaraj
Witness examined for the defendant/s :
DW1 - K.Raghavendra DW2 - Shivalingaiah
Documents marked for the plaintiff/s :
Ex.P1 - Registered sale deed
Ex.P2 - General Power of Attorney deed
Ex.P3 - Original affidavit of Ramakka
Ex.P4 - Registered sale deed
Ex.P5 - Encumbrance certificate
Ex.P6 - Encumbrance certificate
Ex.P7 - certified copy of sale deed
Ex.P8 - certified copy of sale deed
Ex.P9 - Copy of application to Public
Information office, BESCOM
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Ex.P10 - certified copy of sale deed
Ex.P11 - certified copy of gift deed
Ex.P12 - certified copy of encumbrance
certificates
Ex.P13 - certified copy of encumbrance
certificates
Ex.P14 - Report of BESCOM
Ex.P15 - certified copy of sale deed
Ex.P16 - certified copy of order of DDLR
Ex.P17 - certified copy of order in Revision
Petition No. 32/1998-1999
Ex.P18 - certified copy of order of DDLR
Ex.P19 - certified copy of layout plan
Ex.P20-23 - Four photos
Ex.P24-27- Four Negatives
Ex.P28-34 - Seven photos
Ex.P35-37 - Negatives
Ex.P38 - certified copy of encumbrance certificate
Ex.P39 - certified copy of judgment and decree in
O.S.No.9383/2007
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Ex.P40 - certified copy of judgment and decree in
O.S.No.3360/1999
Documents marked for the defendant/s :
Ex.D1 - certified copy of sale deed dated 22.3.2007 Ex.D2 - certified copy of sale deed dated 3.6.2011 Ex.D3 - certified copy of sale deed dated 8.11.2011 Ex.D4 - certified copy of mortgage deed dated 17.4.2012 Ex.D5 - encumbrance certificate Ex.D6 - General Power of Attorney Ex.D7 - certified copy of sale deed dated 3.6.2011 (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
85 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly.
86 XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
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