Bangalore District Court
Sri. B. Kishore Kumar S/O Sri. G. ... vs Sri. Narayanappa S/O Late ... on 22 September, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.17466/2004
Dated this the 22nd day of September 2021
Plaintiff 1. Sri. B. Kishore Kumar S/o Sri. G. Balakrishnan,
Aged about 31 years,
R/at No.41, 10th Main, 6th Cross,
Nandanam Colony, Horamavu Road,
Dodda Banaswadi, Bangalore-560 043.
(Rep by Sri.A.R Advocate)
V/S
Defendants 1. Sri. Narayanappa S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 50 years,
2. Sri. Nagaraj S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 45 years,
2(a) Since deceased represented by his LR.
Smt. Shashikala W/o Late C. Nagarajappa,
Aged about 47 years,
Residing at Horamavu Village & Post,
Near Mariyamma Temple Street,
K.R Puram Hobli, Bangalore East Taluk,
Bangalore-560 043.
3. Sri. Jayaram S/o Late Venkataswamapppa
@ Chikka Abbaiah, Aged about 40 years,
1 to 3 residing at: Horamavu Village,
K.R Puram Hobli, Bangalore-560 043.
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Judgment OS.No.17466/2004
4. Smt. Madireddy Sripadmavathi W/o Jagadish,
Aged about 36 years, R/o No.5,
Scientist Hostel, C.V. Raman Nagar,
DRDO Township, Bangalore-560 093.
5. Sri. Y.N. Konda Reddy S/o Narayana Reddy,
Aged about 42 years, R/o No.83,
Yerandahalli, Hennagara Post,
Anekal Taluk, Bangalore-562106.
(Rep by defs No.1 to 3 Sri.PSN, Advocate,
def No.4-Exparte, def No.5 rep by Sri.MRS Advocate)
Date of Institution of the suit 18/12/2004
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.)
Permanent injunction
Date of the commencement of recording of the Evidence 11/10/2006
Date on which the Judgment was pronounced. 22/09/2021
Years Month/s Day/s
Total duration 16 09 03
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
:JUDGMENT:
The plaintiff filed suit against the defendants for permanent injunction.
2) The brief facts of plaint averments is as under:
The plaintiff submits that he is absolute owner of the suit schedule property mentioned below:- 3
Judgment OS.No.17466/2004
:SUIT SCHEDULE PROPERTY:
All that piece and parcel of property bearing Northern portion of Site No.4, Sites No.5, 6 & 7, Khatha No.135/4 situated at Jayanthi Nagar Horamavu village, K.R.Pura Hobli, Bangalore East Taluk, Bangalore Taluk measuring Site No.4- 15 X 26 feet = 390 Square feet, Site No.5- (26 +
30)/2X 30 feet = 840 Square feet, Site No.6, 30 X 40 feet = 900 Square feet and Site No.7, 30 X 20 feet=600 square feet in all 2730 square feet bounded by East: Road, West: Private Property (Jayanthi Gram), North: Private Property, South:
Southern portion of Site No.4.
3. The plaintiff further submits that he purchased suit schedule property from his vendor the Karnataka Nair Service Society under registered sale deed on 29/01/2004.
His vendor purchased suit schedule property from defendants No.1 to 3, who were original owners of sites in suit schedule property. After purchase of suit schedule 4 Judgment OS.No.17466/2004 property, he changed khatha of property in his name in Horamavu Gram Panchayat revenue records and from No.19 is in his name and he paid taxes of suit properties. The plaintiff further submits that he got plan sanctioned from Horamavu Panchayat to construct his house in suit property and started construction and construction is under process.
4. The plaintiff further submits that defendants No.1 to 3 were original owners of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, during the year 1991, they formed layout of house sites in northern portion of their land in Sy.No.81/2 to an extent of 1 Acre 24 Gunata with total number of 47 sites in said layout. The defendants No.1 to 3 executed general power of attorney in favour of defendant No.4 in respect of layout and authorised defendant No.4 to transact with site purchasers and also got House List Khatha numbers allotted to sites formed in layout. The defendants No.1 to 4 have sold all the site so formed in said layout to various purchasers and plaintiff's vendor during the year 1992-1993 under registered sale deeds and purchasers of 5 Judgment OS.No.17466/2004 sites constructed houses and were in peaceful possession and enjoyment of respective sites purchased by them ever since the year 1992.
5. The plaintiff further submits that northern portion of survey No.81/2 to an extent of 1 acre 24 guntas defendants formed the residential layout with 47 sites bounded by North: land in Sy.No.81/1 belongs to Yamanna, East: land in Sy.No.84 belongs to Balyki Dasappa, West: Jayanthi grama, hamlet of Horamavu Village, South: land (sold) belongs to defendant No.4 Padmavathi in the same Sy.No.81/2. He and many others purchased sites in layout under registered sale deed from defendants No.1 to 3. All the 47 sites were thus sold to different purchasers during the year 1992. The defendants No.1 to 3 did not retain any right or title over northern portion of land in Sy.No.81/2 wherein the sites were formed. Thus since 1992 defendants No.1 to 3 ceased to be the owners of land wherein the said layout was formed. That for the past 13 years there was no agricultural operation in the land in Sy.No.81/2 where the layout is formed and it is 6 Judgment OS.No.17466/2004 fully developed residential layout, and Horamavu Layout by issuing House List numbers and house building licenses to the site owners.
6. The plaintiff submits that on 21/10/2004 defendant No.5 appeared in the layout with strange and equally untenable clam that he has purchased the land wherein the layout was formed by the defendants No.1 to 3 about 13 years ago and had sold sites to plaintiff and others and put them in physical possession and enjoyment under registered sale deeds. The defendant No.5 claims that he has purchased the land wherein the layout is formed under registered sale deed on 01/03/2004 to an extent of 1 acre 7 guntas agricultural land from defendants No.1 to 3 and their children. The defendant No.5 has appeared in the layout on 21/10/2004 with his gang and henchmen and threatened the plaintiff and other owners of sites and houses in the layout to give up their properties or they will be forcibly evicted from their properties. 7
Judgment OS.No.17466/2004
7. The plaintiff further submits that he and other owners of the sites are tried to contact the defendants No.1 to 3 and the defendant No.4 on this untenable claim of the defendant No.5, but they are avoiding to answer him and other site owners in the layout. It has become clear that the defendants No.1 to 5 in collusion with each other fraudulently registered the sale deed now claimed by the defendant No.5 to illegally knock off and grab the plaintiff's and other site owners properties in the layout and for making unlawful gain for themselves. That after the formation of the said layout in their land in Sy.No.81/2 and sale of the sites under registered sale deeds to the purchasers and after putting the purchasers in possession of their respective sites, the defendants No.1 to 3 had no more rights, title or interest remaining with them in respect of the land wherein the layout were formed to convey to the defendant No.5 under the sale deed dated 01/03/2004. That the alleged sale deed of the defendant No.5 in respect of the same land wherein the layout as formed is a fraudulent instrument and it does not confer any title to the defendant 8 Judgment OS.No.17466/2004 No.5 in respect of land wherein the layout was formed and the said sale deed claimed by the defendant No.5 is a nullity and it does not affect in any manner the lawful title, rights and interest of the plaintiff on the suit schedule property.
8. The plaintiff further submits that defendant No.5 and his henchmen came to layout on 21/10/2004 and threatened the plaintiff and other owners of forceful interference and eviction. The plaintiff and other site owners filed police complaint in the Ramamurthy Nagar Police Station against the threats of the defendants. The suit property situated within the jurisdiction of Bengaluru Metropolitan Limits, within the jurisdiction of this Court. He and other site owners in the layout are living under the threat of forceful eviction by the defendant No.5 and his supporter. The plaintiff further submits that, he is in peaceful possession and enjoyment of suit schedule property, but defendants No.1 to 5 creating fraudulent sale deed and manipulated revenue records on the strength of fraudulent title deeds and trying to interfering in his peaceful possession and enjoyment over the suit schedule property. 9
Judgment OS.No.17466/2004
9. The plaintiff further submits the cause of action for suit arose on 21/10/2004 when the defendant No.5 came to his property and threatened to interfere with his peaceful possession and enjoyment of suit property. The plaintiff prays to pass decree to the suit for permanent injunction restraining the defendants their heirs, successors, agents or any one claiming under them from interfering in any manner with the peaceful possession and enjoyment over the suit schedule property.
10. The defendants No.1 to 3 have filed written statement. The defendants No.1 to 3 denied entire plaint allegations and denied ownership of plaintiff over suit schedule property. The defendants No.1 to 3 submit that suit of plaintiff for relief of bare injunction without seeking declaratory is not maintainable either in law or on facts. The suit filed by plaintiff is frivolous, vexatious, mischievous in nature and plaintiff had suppressed material facts and misrepresented the facts. The defendants No.1 to 3 submit there is no cause of action to file suit, court fee paid is in sufficient. 10
Judgment OS.No.17466/2004
11. The defendants No.1 to 3 alleged suit schedule property is not at all in existence as it is described in schedule to plaint. The defendants No.1 to 3 submits that out of total extent of 3 acre 17 guntas of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk presently Bangalore East Taluk, they have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma W/o Dasappa and another extent of 30 guntas of land in favour of Padmavathi Madareddy/defendant No.4 and retained 1 Acre 7 Guntas of land in said Sy.No.81/2 of Horamavu Village. The defendants No.1 to 3 were title holders in possession and enjoyment of extent of 1 Acre 7guntas of land Sy.No.81/2 of Horamavu Village and they have sold the said extent of the land in favour of Y.N. Kondareddy/defendant No.5 under registered sale deed dated 01/03/2004, and rectification deed dated 29/03/2004. Ever since date of sale of land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 of Horamavu Village, the defendant No.5 is in possession and enjoyment of said extent of land. 11
Judgment OS.No.17466/2004 The defendants No.1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu Village, in favour of Padmavathi Madareddy i.e. defendant No.4 and they have not entered in to any other transaction with defendant No.4 except for the sale deed referred to above, which has been executed by the defendants No.1 to 3. That no sites have been formed in the land measuring an extent of 1 Acre 7 Guntas, which has been sold in favour of defendant No.5.
12. The defendants No.1 to 3 denied allegations of plaint paras No.2 to 13. The defendants No.1 to 3 denied that plaintiff is owner of suit schedule property and purchased same under registered sale deed dated 29/01/2004 from his vendor the Karnataka Nair Society as it is not within their knowledge. The defendant No.1 to 3 denied that plaintiff's vendor purchased suit schedule property from defendants No.1 to 3. The defendants No.1 to 3 admits that they were original owners of land bearing Sy.No.81/2 of Horamavu village. The defendants No.1 to 3 submits there is no cause 12 Judgment OS.No.17466/2004 of action to file the suit and one alleged is not correct. The defendants No.1 to 3 prays to dismiss the suit with cost.
13. The defendant No.4 not appeared in spite of service of summons and placed exparte. The defendant No.5 has filed his written statement. The defendant No.5 denied entire plaint allegations. The defendant No.5 submits that suit filed by the plaintiff's for relief of permanent injunction in respect of the alleged non existence of suit schedule property is not sustainable either in law of on facts. Without seeking declaratory relief of title and consequential reliefs the suit filed for bare injunction is not maintainable. The defendant No.5 submits that description of the property, its extent and the boundaries mentioned in the schedule to the plaint are not correct. The plaintiff is making an attempts to lay claim for a portion in the land measuring an extent of 1-07 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, (Previously Bangalore South Taluk) under the guise of having purchased site bearing house list No.122/2 under the registered sale deed. There cannot be site 13 Judgment OS.No.17466/2004 bearing house list number in agricultural land. The house list number 122/2 indicates that property is Gramatana property. However plaintiff is trying to lay claim for portion in the land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2, of Horamavu Village, K.R Puram Hobli, Bangalore South taluk and presently Bangalore East Taluk. The plaintiff has to establish that there is sites bearing house list number with its extent & boundaries as mentioned in the sale deed & the said sites is within the Gramatana limits & then only plaintiff can claim right over the suit schedule property.
14. The defendant No.5 alleged that plaintiff is not having title & possession to the property as it is described in schedule to plaint. The court paid is insufficient. There is no cause of action for the suit and hence the plaintiff is not entitle for relief of permanent injunction for want of cause of action. The defendants No.1 to 3 were title holders and in possession and enjoyment of the land measuring an extent of land 3 Acre 17 Guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk and they have sold 14 Judgment OS.No.17466/2004 an extent of 1 Acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour of Padmavathi Madareddy/defendant No.4 and they have retained land measuring 1 Acre 07 guntas, they were in possession and enjoyment of said extent 1 Acre 07 guntas of land as absolute owners. The defendants No.1 to 3 have sold said extent of 1 Acre 07 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk in favour of defendant No.4 under registered sale deed dated 03/01/2004 and by rectification deed dated 29/03/2004. Since from date of purchase 01/03/2004 possession of land has been delivered to defendant No.5 and he is in possession of the said extent of 1 Acre 07 guntas of land in Sy.no.81/2 of Horamavu Village, K.R Puram, Bangalore East Taluk as an absolute owner and khata of property mutated in his name as per M.R No.48/03-04 and entered his name in the pahanies in respect of aforesaid land. Then he approached survey department and said land in Sy.No.81/2 of Horamavu village, being surveyed and phoded, the land measuring an extent of 15 Judgment OS.No.17466/2004 1-07 guntas has been assigned with new Sy.No.81/3. The aforesaid extent of 1Acre 7 guntas in new Sy.No.81/3 (old Sy.no.81/2) of Horamavu Village, has not been converted for non-agricultural residential purposes and it remains as an agricultural land.
15. The defendant No.5 denied the allegations of plaint paras No.2 to 13. The defendant No.5 submits that document upon which plaintiff is relying in support of his title and possession the schedule property do not in any manner relate to the land in Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, hence the plaintiff can't claim any right of possession over any portion of the land in Sy.No.81/3 (Old No.81/2) of Horamavu Village, K.R Puram Hobli. The defendant No.5 prays dismiss the suit of plaintiff with costs.
16. On the basis of above pleadings Issues framed as under:
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Judgment OS.No.17466/2004
:ISSUES:
(1) Whether the plaintiff proves his lawful possession and enjoyment over the suit schedule property as on the date of the suit? (2) Whether the plaintiff proves the alleged obstructions?
(3) Whether the plaintiff is entitled to the reliefs claimed?
(4) What order ?
17. The plaintiff examined as PW.1 and marked ExP1 to ExP16. The defendant No.1 examined as DW.1. The defendant No.5 examined as DW.2 and marked ExD1 to ExD32.
18. The plaintiff counsel argued. The defendants No.1 to 3 counsel argued. The defendant No.5 counsel argued and filed memo with citations.
19. My findings to above Issues are as under
Issue No.1) In Negative Issue No.2) In Negative Issue No.3) In Negative Issue No.4) See final order for following: 17
Judgment OS.No.17466/2004
:REASONS:
20. Issues No.1 to 3:
The plaintiff B.Kishorekumar S/o G.Balakrishnan filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that he is absolute owner in possession and enjoyment of the schedule property. He has filed this suit against the interference of the defendant No.5 in his peaceful possession and enjoyment of his suit schedule property. He purchased schedule property from his vendor the Karnataka Nair Service Society under registered sale deed on 29/01/2004. His vendor purchased schedule property from defendants No.1 to 3, the original owners of sites, in which schedule property falls. During the year 1991 defendants No.1 to 3 formed layout of 47 sites in the northern portion of their land in Sy.No.81/2 to an extent of 1 acre 24 guntas in Horamavu village, KR Puram Hobli, Bangalore South Taluk (presently Bangalore East 18 Judgment OS.No.17466/2004 Taluk) as per layout plan furnished to his and other plaintiffs and they also obtained House List Numbers and Khatha from local Horamavu Panchayat. The defendants No.1 to 3 also executed GPA in favour of defendant No.4 authorizing defendant No.4 to transact with purchasers of sites thus formed in the layout. The defendants No.1 to 4 sold all sites formed in said layout to various purchasers and his vendor during the year 19921993 under registered sale deeds and purchasers were in peaceful possession and enjoyment of the respective sites purchased by them ever since the year 1992 many of the site owners by spending their hard earned money and also by availing bank loans have already completed the construction of their houses with licence and sanctioned plan from the village panchayat.
He also constructed the foundation of his house his site No.4 in the schedule site.
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21. The PW.1 further deposed evidence that northern portion of the Sy.No.81/2 to an extent of 1 acre 24 guntas wherein the defendants 1 to 4 formed the layout as per the layout plan with 47 sites was bounded by North: land in Sy.No.81/1 belonging to Yammanna, West:Jayanthigrama, East: land belonging to Baluki Dasappa, South: land sold to defendant No.4 in the same Sy.No.81/2. The defendants No.1 to 3 did not retain any right, title over the northern portion of the land in Sy.No.81/2 wherein the layout was formed and sites sold to purchasers. Thus since 1992 defendants No.1 to 3 ceased to be owners of land wherein the layout was formed. He and other purchasers of sites have been, and continue to be in peaceful possession and enjoyment of their respective sites. For the past thirteen years there was no agricultural operation on the land in Sy.No.81/2 wherein the layout is formed and it is fully developed residential layout, and 20 Judgment OS.No.17466/2004 Horamavu village authorities have approved the residential layout issuing house list khatha numbers and house building license to the site owners. On 21/10/2004 the defendant No.5 appeared in layout claiming that he has purchased the agricultural land from defendants No.1 to 3 and their children under registered sale deed, where the layout was formed thirteen years ago defendants No.1 to 3 were sold suit site to him. The defendant No.5 threatened to dispossess his and other site owners of their properties. The defendant No.5 and his gang tried to remove boundary stones and fencing put up in schedule sites. He also tried to stop and interfere with ongoing construction of his house in his site he and other owners resisted the illegal act of defendant No.5 and his men. A police complaint was lodged by site owners with Ramamurthy Nagar Police Station. He and other owners of sites tried to contact defendants No.1 to 3 21 Judgment OS.No.17466/2004 and defendant No.4 about this untenable claim of defendant No.5. But they are avoiding to face his and other site owners in the layout. So it has become clear that defendants No.1 to 5 in collusion with each other fraudulently engineered and registered the sale deed now claimed by defendant No.5 to illegally knock off and grab his and other site owners properties in the layout and for making unlawful gain for themselves. That after formation of layout to an extent of 1 acre 24 guntas with 47 sites in northern portion of land in Sy.No.81/2 of Horamavu village by defendants No.1 to 3 and after selling all the sites to different purchasers, including schedule site to him, the above said land wherein layout was formed during the year 1991 to sell again to defendant No.5 under the sale deed dated 01/03/2004. The alleged sale deed of agricultural land dated 01/03/2004 in favour of defendant No.5 in respect of very same land where the layout was 22 Judgment OS.No.17466/2004 formed by defendants No.1 to 3 in 1991 does not confer any title to the defendant No.5 and said sale deed dated 01/03/2004 is illegal and said sale deed dated 01/03/2004 is illegal and null and void and the same is a fraudulent one. The northern portion Sy.No.81/2 in Horamavu village wherein defendants No.1 to 3 formed layout of sites was not an agricultural land since 1992. The said fraudulent sale deed dated 01/03/2004 claimed by defendant No.5 is in respect of property which has already been transferred to his and other site owners. He has legal right to peaceful possession and enjoyment of suit schedule property. The defendants No.1 to 3 by creating fraudulent sale deed dated 01/03/2004 in favour of defendant No.5 and bogus title documents are trying to interfere with peaceful possession and enjoyment of his suit schedule property as well as that of other site owners, defendant No.5 came to layout on 21/10/2004 with his gang and 23 Judgment OS.No.17466/2004 tried to interfere with the suit schedule properties and attempted to remove the boundary stones and fencing to make it appear as agricultural land defendant No.5 has not acquired any valid title under the sale deed claimed by him to enter upon the suit properties or to interfere with the lawful possession of his suit schedule property. The PW.1 prays to decree the suit as prayed in plaint. In support of oral evidence PW.1 marked documents ExP1 to ExP16.
22. The defendant No.1 Narayanappa S/o Venkataswamappa @ Chikkabbaiah filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that plaintiff filed suit for permanent injunction in respect of non exist alleged suit schedule properties, description of properties, boundaries, measurements in the plaint schedule is imaginary and not in existence. The land bearing Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South Taluk, (Presently Bangalore East Taluk), totally measuring 3 acres 24 Judgment OS.No.17466/2004 17 Guntas originally belongs to their grandmother Venkatamma, she executed Registered Will dated 13/06/1988 in their favour him and his two brothers namely Nagaraja, Jayaram and his sister Pullamma. Their grandmother sold 1 acre 20 guntas in favour of Munivenkatamma of Southern Portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title, interest and possession as per her last will executed in their favor. They became the absolute owners of land measuring 1 acre 37 guntas including kharab of 0.06 Guntas in the said Survey number, which is bounded by East land of Baluki Dasappa, West Jayanthi Village, North land of Yamanna and South remaining portion in Sy.No.81/2 sold to Munivenkatamma. That he and defendants No.2 & 3 sold Southern portion of Sy.No.81/2 measuring 30 guntas in favour of Padmavathi Madi Reddy and retained 1 acre 13 Guntas including 6 guntas of kharab, which is Northern portion of Sy.No.81/2.
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23. The DW.1 further deposed that they (defendants No.1 to 3) are agriculturist doing agriculture for their livelihood in the said land retained by them, in order to meet their urgent family necessities they have sold the said land measuring 1 acre 13 guntas including 6 guntas kharab in Sy.No.81/2 of Horamavu Village in favour of defendant No.5 Y.N.Kondareddy in the year 2004, due to mistake crypt in mentioning on boundaries under the afore said sale deed, they have executed rectification deed immediately. After the purchase Y.N.Kondareddy became the absolute owner in possession of said land and same is bounded by East: land of Baluki Dasappa, West: Jayanthi Village, North:land of Yamanna and South: land of Padamavathi Madireddy. Further the said land the same sub phoded as Sy.No.81/3 measuring 1 acre 7 Guntas, the mutation and RTC entered in the name of defendant No.5. The defendants No.1 to 3 apart from selling the said land Y.N. Kondareddy never sold to anybody and never parted its possession till they sold in favour of Y.N.Kondareddty. The defendants No.1 to 3 are 26 Judgment OS.No.17466/2004 educated and not acquainted with worldly affairs, they know only put signature in Kannada not knowing reading and writing any of the languages. That false allegation of the plaintiffs that they executed GPA in respect of alleged sites No.4 to 7 in Katha No.135/4 properties in favour of defendant No.4/Padmavathi Madireddy and in turn she representing them sold alleged Sites No.4 to 7 alleged house list Katha No.134/2 at Jayanthi Grama, Horamavu village, K.R.Puram Hobli measuring 30 X 40 feet in favour of Karnataka Nair Service Society in the year 1993 and they in turn sold to plaintiff during the year 2004 is false. They have no such Katha property or sites at the alleged Horamavu village limits, the allegations of plaintiffs that layout of sites formed in their land in Sy.No.81/2 of Horamavu village out of 1 acre 24 Guntas is false, after alienation they have not possessed 1 acre 24 Guntas either to form alleged layout of sites, in fact they never approached Horamavu village Panchayath for obtaining Katha in their names, the alleged Katha bearing No.135/4 at Jayanthi Grama, Horamavu 27 Judgment OS.No.17466/2004 village, K.R.Puram Hobli are bogus, fictitious Katha number, fraudulently concocted and created by the plaintiffs to suit their false convenience and attribute claims in their alienated agricultural land in Sy.No.81/2.
24. The DW.1 further deposed that plaintiffs have concocted and got up documents styled as sale deeds in respect of non existent property, by misusing the bogus and concocted documents, the plaintiffs attempted to gain, interest in their alienated properties belongs to Y.N. Kondareddy by imaginary cause filed the above suit. That till they sold land measuring 1 acre 7 Guntas in Sy.No.81/2 in favour of Y.N. Kondareddy, the said land continued to be revenue assessed land entered in the RTC records maintained by the revenue department and continued to be agricultural cultivable lands, they never obtained any conversion for non agricultural residential purposes and never formed any illegal layout in the said land, They have not sold any piece or inch to anybody. In the alleged sale deed of plaintiff survey number not reflected, in which the alleged sites are 28 Judgment OS.No.17466/2004 formed. That after alienating our land in Sy.No.81/2 measuring 1 acre 7 Guntas in favour of Y.N.Kondareddy they have no interest in the said land, the alleged cause of action is false and imaginary. The DW.1 prays to dismiss the suit of the plaintiff with exemplary cost.
25. The defendant No.5 Y.N. Kondareddy S/o Narayana Reddy filed his affidavit in lieu of examination in chief as DW.2 and deposed evidence that the plaintiff filed the above suit against the defendants herein for the reliefs of permanent injunction in respect of residential premises bearing site No.36 formed in the northern portion of land in Sy.No.81/2 of Horamavu Village, in house list katha No.135/4, K.R.Puram Hobli, Bangalore South Taluk measuring East to West : 30 feet and North to South : 40 with boundaries i.e., the suit schedule property. That the suit filed by the plaintiff for the reliefs of permanent injunction in respect of the alleged non existence of suit schedule property is not sustainable either in law or on facts and as such suit has to be dismissed. That without seeking for the declaratory relief of 29 Judgment OS.No.17466/2004 title mere suit for bare injunction is not maintainable in law and hence the plaintiffs not entitle for the relief's of permanent injunction. That he is bonafide purchaser of agricultural land bearing old Sy.No.81/2 and New No.81/3 measuring 1 acre 7 guntas of Horamavu village for valuable consideration from rightful owners namely the defendants No.1 to 3 after enquiry and verifying the title of his vendor and comes to the conclusion that the vendors having a marketable title to alienate the said property and purchased under registered sale deed on 01/03/2004 for valuable consideration. Therefore his right, title interest and possession have to be protected under law. The description of the plaint schedule property extent and boundaries mentioned in the plaint schedule is not at all correct. The boundaries and extent and property as stated in the plaint and the schedule as not at all pertaining to old Sy.No.81/2 and New No.81/3 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk and as such suit has to be dismissed. That the plaintiff is making attempts to lay claim in portion 30 Judgment OS.No.17466/2004 of land measuring to an extent of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village K.R.Puram Hobli, Bangalore East Taluk under the guise of having purchased site bearing house list number the registered sale deed. The suit schedule property is nothing to do with the land bearing old Sy.No.81/2 and New Sy.No.81/3 of Horamavu village, and the alleged description of the plaint schedule, its boundaries and the sale deed referred to in the plaint is in respect of the property situated in the gramatana of Horamavu and not at all pertaining to the agricultural land.
26. The DW.2 further deposed that there cannot be site bearing House list number in the agricultural land. The house list number indicates that the property is a gramatana property. However the plaintiff is trying to lay to claim for the portion in the land bearing an extent of 1 acre 7 guntas in old survey No.81/2 of Horamavu village, K.R.Puram Hobli, Bangalore South Taluk, and presently Bangalore East Taluk and contentions taken by the plaintiff in the pleadings and in the evidence affidavit the documents relayed upon by him 31 Judgment OS.No.17466/2004 are different to each other and therefore the plaintiff is not entitled for any relief as sought for in the plaint claiming the suit property in the portion of the land in Sy.No.81/2 of Horamavu village. That the plaintiff has establish that there is site bearing house list No. with its extent and boundaries as mentioned in the sale deed and the said site is within the gramatana limits and then only the plaintiff can claim right over the suit schedule property. The plaintiff failed to establish the property mentioned in the sale deed and also in the plaint schedule and as such suit has to be dismissed. The plaintiff is not having tile and possession to the property described in the plaint schedule and as such the plaintiff cannot value site at Rs.1000/- under section 26(C) of KCF and SV Act 1956. The plaintiff has to value the suit on the market value of the suit property. That the vendor of the plaintiff has no manner of right title interest or possession over the suit schedule property and as such the plaintiff does not derive any right, title or possession. That the documents produced by plaintiff are all concocted, created and got up 32 Judgment OS.No.17466/2004 documents. The documents are not at all existence in the Horamavu village panchayath. The vendors of plaintiff also does not find place in the Horamavu village Panchayath. On the strength of the created and concocted documents false suit came to be filed against him on the non existence of the suit schedule property. There is no cause of action for the suit and the plaintiff is not entitle for permanent injunction for want of cause of action. That the defendant 1 to 3 are the title holders and in possession and enjoyment of land measuring to an extent of 3 acres 17 guntas in Sy.No.81/2 of Horamavu Vilalge, K.R Puram Hobli, Bengalore South Taluk having sold to an extent of 1 acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour defendant No.4 Padmavathi Madireddy and having retained the land measuring 1 acre 7 guntas and they were in possession and enjoyment of 1 acre 7 guntas of land as absolute owners. The defendants No.1 to 3 and their children have sold the said 1 acre 7 guntas in Sy.No. 81/2 of Horamvu Village in his favour under registered sale deed dated 33 Judgment OS.No.17466/2004 01/03/2004 for valuable consideration. The vendors have noticed that there is some discrepancy in the boundaries and therefore they have executed registered rectification deed dated 29/03/2004. That ever since the date of purchase he has been in possession and enjoyment of 1 acre 7 guntas of land in Sy.No.81/2 of Horamavu Village by exercising his right of ownership and possession. That on the basis of his lawful ownership and possession the concerned revenue authorities have lawfully effected mutation in M.R No.48/2003-2004 and his name has been entered in RTC and pahanies in respect of the said property. Since the date of purchase he is paying Kandayam in respect of the said property. That after purchase he approached the survey department to measure and fixed the boundaries in respect of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu Village. The survey authorities surveyed and fixed the boundaries in respect of the said property to an extent of 1 acre 7 guntas and assigned with new Sy.No.81/3. That aforesaid extent of 1 acre 7 guntas in New Sy.No.81/3 (old Sy.No.81/2 of 34 Judgment OS.No.17466/2004 Horamavu Village) has not been converted for non agricultural residential purposes and it remains as on agricultural land. Further his vendors have not at all formed any sites in the said land and sold it to any persons including the plaintiff at any point of time and remained as an agricultural land and revenue authorities lawfully entered his name in the revenue documents.
27. The DW.2 further deposed that averments made in para No.3 of the plaint that under the registered sale dated 20/02/2002, the site No.36 alleged formed in Sy.No.81/2 of Horamavu village has been purchased by the plaintiff from his vendor Padmavathi Madireddy GPA Holder from the defendants No.1 to 3 is false. The alleged layout plan and documents of sale deeds and GPA are got up, concocted and created for the purpose of filing this suit. The DW.2 denied the allegations of plaint paras No.2 to 12 of the plaint.
28. The DW.2 further deposed that document upon which the plaintiff is relying in support of his title and possession 35 Judgment OS.No.17466/2004 the schedule property do not in any manner relate to the land in Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, hence the plaintiff can't claim any right of possession over any portion of said property. The DW.2 further deposed that the defendants 1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu village in favour of Padmavathi Madireddy. The defendants No.1 to 3 have not entered into any other transactions with the defendant No.4 except the sale deed referred to above which has been executed by defendants No.1 to 3. That the defendants No.1 to 3 have not at all executed GPA in favour of defendant No.4. No power has been confirmed upon the defendant No.4 under the alleged GPA. After sale by the defendants No.1 to 3 in his favour, defendants No.1 to 3 did not own and possess any land. The alleged layout plan is a got up and concocted one. In the sale deed as well as schedule given in the plaint there is no mention that the suit schedule property is the portion of Sy.No.81/2 of Horamavu village. There are no records to 36 Judgment OS.No.17466/2004 show that the suit schedule property comes within the jurisdiction of Horamavu village panchayath. The suit schedule property is not at all in existence. The documents produced are all village panchayath records are not at all pertaining to Sy.No.81/2 or 81/3 of Horamavu village, he applied before the Right to information officer under the RTI Act to furnish the documents received by the plaintiff before the village panchayath authorities, BBMP authorities, Tahsildar, and other authorities. They have sent the information stating that the documents applied by him are not at all available in the said offices. The plaintiff trespassed into the portion of land bearing (Old Sy.No.81/2) measuring 1 acre 7 guntas and New No.81/3 of Horamavu village and got constructed the building. In that regard he filed suit in OS.No.3483/2005 on the file of this court for the reliefs of declaration, mandatory injunction, possession and other reliefs. The said suit is filed not only against the plaintiffs but also others. The said suit is pending. The other allegations which are contrary to and inconsistence with the written 37 Judgment OS.No.17466/2004 statement are false and baseless. The DW.2 prays to dismiss the suit with exemplary costs. In support of oral evidence DW.1 marked ExD1 to ExD32.
29. The defendant No.5 counsel while arguing relied upon the decisions reported in 1) ILR 2005 KAR 884 2) AIR 1979 Cal 50, 3) AIR 1999 SC 1441, 4) AIR 1962 Madras 149, 5) ILR 2010 KAR 2996, 6) ILR 1998 KAR 1, 7) AIR 1990 Orissa 124, 8) AIR 2004 Karnataka 444, 9) (1998) 9 SCC 719, 10) AIR 1998 KAR 321, 11) ILR 2007 KAR 339. The relevant citations are discussed below.
ILR 2005 KAR 884
T.L.Nagendra Babu V/s Manohar Rao Pawar
Suit for Declaration and Injunction
requirement of evidence - Duty of the Court - Held - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.
38
Judgment OS.No.17466/2004 ILR 2007 KAR 339 Aralappa V/s Jagannath and others Specific Relief Act 1963-Section 34- Declaration of status or right-Discretion of Court-Held, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property
-When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable- Court below was justified in dismissing the suit as not maintainable-Appeals are dismissed.
30. The burden is on plaintiff to prove that he is absolute owner and in lawful possession and enjoyment of suit property as on the date of suit and defendant caused interference to his possession and enjoyment over the suit 39 Judgment OS.No.17466/2004 schedule property. The contention of the plaintiff that he has purchased the suit schedule property under registered sale deed on 29/01/2004 from the Karnataka Nair Service Society. His vendor purchased the suit property from defendants No.1 to 3. The further contention of the plaintiff that defendants No.1 to 3 were the original owners of Sy.No.81/2 of Horamavu village, K.R. Puram hobli and in the year 1991 they are formed layout of sites in the northern portion of the said land to the extent of 1 acre 24 guntas and formed total number of 47 sites and got house list khatha allotted to the said sites and offer to sell the said sites to the intending purchasers through their power of attorney i.e. defendant No.4. The northern portion of the Sy.No.81/2 to an extent of 1 Acre 24 Gunta wherein the defendants No.1 to 4 formed the layout as per layout plan 47 sites was bounded by North: land in Sy.No.81/2 of Horamavu village, East: land in Sy.No.84 of Baluki Dasappa, West: Jayanthi grama and hamlet of Horamavu village, South: land now sold belonging to the defendant No.4, the same Sy.No.81/2. Hence 40 Judgment OS.No.17466/2004 defendants No.1 to 3 did not remain any right title over the northern portion of land in Sy.No.81/2. He and other purchasers of the sites from defendants No.1 to 3 have also constructed the house in their property and the entire land bearing Sy.No.81/2 was developed. Such being the state of affairs the defendant No.5 with his gang and henchmen came to the schedule property on 21/10/2004 stat that he has purchased the land wherein the lay out was formed by defendants No.1 to 3 about 13 years back and sold the site to him and other purchasers. The defendant No.5 contending that he has purchased the land to the extent of 1 acre 7 guntas from defendants No.1 to 3 and their children on 01/03/2004 and defendant No.5 with his gang and henchmen threatened him and other owners of the sites and houses in the lay out to hand over the properties otherwise they will be possible evicted from the properties. Hence defendant No.5 causing interference with his possession and enjoyment over suit schedule properties colluding with other defendants and defendants No.1 to 5 have created fraudulent documents of 41 Judgment OS.No.17466/2004 title deeds and manipulated the revenue records and trying to interfere with his possession and enjoyment over the suit schedule property. The plaintiff examined as PW.1 as discussed above. In support of oral evidence the plaintiff/PW.1 marked ExP1 to ExP16.
31. The ExP1 is original sale deed dt.29/01/2004 executed by the Karnataka Nair Service Society represented by its secretary E.K.Gopinatha Panicker in favour of plaintiff B.Kishorkumar S/o G.Balakrishnan in respect of northern portion of Site No.4 and site No.5, 6, 7, Khata No.135/4 situated at Janyanthi Gram, Horamanu village, Krishnarajpura Hobli, Bangalore East Taluk, Bangalore i.e., suit schedule property mentioned in the plaint. The ExP2 is encumbrance certificate from the period 01/06/1989 to 31/03/2004, wherein there is entry regarding sale of sites No.2, 3, 4, 5, 7 of Janyantigram, Horamavu village, K.R.Puram Hobli, Bangalore East by defendants No.1 to 3 through their GPA holder Madireddy Sripadmavati in favour of Karnataka Nair Service Society Bengaluru on 04/06/1993 42 Judgment OS.No.17466/2004 and in turn Karnataka Nair Service Society Bengaluru through its secretary sold northern portion of Site No.4, site No.5, 6, 7, Khata No.135/4 of Hormavu village to present plaintiff B. Kishorekumar on 29/01/2004. The ExP3 is encumbrance certificate for the period from 01/04/2004 to 03/11/2004. The ExP4 construction permission and ExP15 is sanction plan issued by President, Horamavu Gram Panchayat to plaintiff for construction of house in northern portion of site No.4 and sites No.5, 6, 7, khata No.135/4 of Hormavu village. The ExP5 and ExP6 are tax paid receipts. The ExP7 to ExP12 photos are marked as they belongs to suit property. The ExP13 is certified copy of sale deed executed by defendants No.1 to 3 through their GPA holder Madireddy Sripadmavati in favour of Karnataka Nair Service Society Bengaluru in respect of sites No.2, 3, 4, 5, 7 of Janyantigram, Horamavu village, K.R.Puram Hobli, Bangalore East. The ExP14 is copy of layout of the properties. The ExP15 is Sanction plan issued by Horamavu Gram Panchayat to plaintiff for construction of building in 43 Judgment OS.No.17466/2004 site No.4, 5, 6, & 7, Katha No.135/4 of Jayanthi Grama, Horamavu village, Krishnarajapura Hobli, Bangalore East Taluk. The ExP16 is complaint filed by the plaintiff to the Sub-Inspector of Ramamurthy Nagar police station alleging harassment to the residents by some miscreants.
32. On the contrary the defendant No.1 examined as DW.1 as discussed above and he denied the allegation of the plaintiff that plaintiff is the owner of the suit schedule property and defendant No.1 contention that there is no existence of suit schedule property, the description of the property boundaries measurement mentioned in the plaint schedule is imaginary. The defendant No.1 contention that the land bearing Sy.No.81/2 of Horamavu village, K.R. Puram Hobli, Bengaluru South taluk (presently Bengaluru East Taluk) totally measuring 3 acres 17 guntas belongs to his grandmother Venkatamma and she was executed Registered Will dated 13/06/1988 in his favour and his two brothers Nagaraja, Jayaram and sister Pullamma. His grandmother sold 1 acre 0.20 guntas in favour of 44 Judgment OS.No.17466/2004 Munivenkatamma on the southern portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title and possession of said portion as per the last Will executed in their favour and they became the absolute owners of the land measuring 1 acre 37 Guntas including kharab of 6 guntas in said survey number, which is bounded on East: land of Baluki Dasappa, West: Jayanthigram,, North: land of Yamanna and South: the remaining portion in Sy.No.81/2 sold to Munivenkatamma. The defendants No.1 to 3 are agriculturists and for their livelihood they have sold 1 acre 13 guntas including 6 guntas of kharab in Sy.No.81/2 of Horamavu village in favour of defendant No.5 Y.N. Kondareddy in the year 2004, due to mistake crypt in mentioning in boundaries under the sale deed, they have executed rectification deed immediately, after purchase Y.N. Konda Reddy became the absolute owner in possession of land sold by them and same was bounded by East : Land of Baluki Dasappa, West: Jayanthi village, North: land of Yamanna and South: land of Padmavahi Madireddy. In 45 Judgment OS.No.17466/2004 pursuance of the registered sale deed in favour of Y.N. Kondareddy he continued in possession of the said land and afterwards the said land was sub phoded as Sy.No.81/3 and the said Kondareddy has not sold the property until now he is in possession and enjoyment of the said land and his name is appearing in revenue records as owner in possession.
33. The defendant No.5 said Y.N. Kondareddy examined as DW.2 and he has also deposed the evidence as contended by defendant No.1 as discussed above as he purchased the land bearing Sy.No.81/2 measuring 1 acre 7 Guntas of Horamavu village from defendants No.1 to 3 afterwards it is given new number as Sy.No.81/3 of Horamavu village. The defendant No.5 also denied the ownership, title and possession of the plaintiff over the suit schedule property and also submits there is no existence of the suit schedule property within the boundaries as contended by the plaintiff. The defendant No.5 contention that the plaintiff trespassed in the possession of the land bearing Sy.No.81/2 measuring 1 acre 7 guntas and new Sy.No.81/3 of Horamavu and got constructed the 46 Judgment OS.No.17466/2004 building and in this regard he filed the suit in OS.No.3483/2005 on the file of this court for the relief of declaration and mandatory injunction, possession and other reliefs.
34. The defendant No.5/DW.2 in support of oral evidence marked ExD1 to ExD32. The ExD1 is certified copy of plaint in OS.No.3483/2005 and ExD2 is certified copy of the written statement in OS.No.3483/2005 which is filed by present defendant No.5 Y.N. Kondareddy against the defendant No.1 Narayanappa and others. The ExD3 is certified copy of plaint and ExD4 is certified copy of written statement in OS.No.16322/2005 pending on the file of this court, which is filed by Renuka Vijayakumar & others against Narayanappa and others. The ExD5 is certified copy of sale deed dated 01/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 in respect of land measuring 1 Acres 17 Guntas including 6 Guntas Kharab in Sy.No.81/2 of Horamavu Village, K.R.Puram Hobli, Bangalore. The ExD6 47 Judgment OS.No.17466/2004 is certified copy of rectification deed dated:29/03/2004 defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 rectifying about boundaries mentioned in the sale deed dated.01/03/2003 towards West: Jayanti Grama, Gomala land instead of land of Baluki Dasappa, towards North:Vemanna's land instead of land of Padmavati's land, towards South: Padmavathi's land instead of Baluki Dasappa's land. The ExD7 is Mutation Register No.48 regarding change of khatha of Sy.No.81/2 measuring from 1 acre 07 guntas from defendant No.1 Narayanappa in favour of defendant No.5 Y.N. Konda Reddy. The ExD8 is certified copy of the record of right of land bearing Sy.No.81/2 to the extent of 1 Acre 7 Guntas of Horamavu village in the name of defendant No.5. The ExD9 is certified copy of Atlas map of Sy.No.81/2, ExD10 is certified copy of Hissa tippani of Sy.No.81/2. The ExD11 is certified copy of form No.5 relating to Sy.No.81/2 of Horamavu village. The ExD12 is certified copy of the Karnataka revision settlement Aakaar bandh relating to 48 Judgment OS.No.17466/2004 Sy.No.81/2. In ExD13 four certified copies of record of rights relating to Sy.No.81/2 of Horamavu village are marked which are standing in the name of defendant No.5 Y.N.Kondareddy. The ExD14 is certified copy of encumbrance certificate for the period from 01/06/1989 to 06/06/2004 wherein there are entries regarding sale of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village by Narayanappa and others to Y.N. Kondareddy. The ExD15 is certified copy of the endorsement issued by Horamavu Grama Panchayath on 15/12/2004 mentioning that relating to khatha No.122/1, 122/2, 129/3, 135/4 of Sy.No.81/2 and 81/3 there are no records standing in the name of Narayanappa, Nagaraju and Jayarama in their records.
35. The ExD16 is marked in evidence as certified copy of the sale deed dated 15/04/1972, but in the said document were mentioned are not properly seen and unable to read the document. Hence the said document is not discussed. In ExD17 thirteen certified copies of endorsements issued by BBMP are marked as ExD17(1) to ExD17(9) those are 49 Judgment OS.No.17466/2004 issued by BBMP, Bengaluru on the application filed by Y.N. Kondareddy under RTI Act relating to information called in respect of house list Nos.122/1, 122/2, 135/4, 129/2, 129/3, site Nos.28, 29, 27, 26, 21, 41, 38, 39, 45, 6, 7, 36, 44, 45 and 42 and the BBMP informed that relating to said sites in Sy.No.81/2, New No.81/3 of Hormavu village, there are no records in their office relating to lay out plan, sanctioned plan in their office. In ExD18 three mutation registers are marked as ExD18 (1) to ExD18(3) relating to transfer of Sy.No.81/2 measuring 1 acre 7 guntas from Narayanappa to Y.N. Kondareddy. The ExD19 is certified copy of the Atlas relating to Sy.No.81/2. The ExD20 is certified copy of the endorsement issued by K.R.M.Nagar police station on the application of Y.N. Kondareddy. The ExD21 is certified copy of the information furnished by the Sub-Registrar, Banaswadi to Y.N. Kondareddy called under RTI Act. The ExD22 is certified copy of endorsement issued by the Deputy Commissioner, Bengaluru to Y.N. Kondareddy to the information called by Y.N. Kondareddy about conversion 50 Judgment OS.No.17466/2004 of land bearing Sy.No.81/2 of Horamavu village for non- agricultural purpose and Deputy Commission furnished information that there are no records in their office relating to the information called by Y.N. Kondareddy.
36. The ExD23 is certified copy of endorsement issued by Tahsildar, Bengaluru East Taluk informing that the land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village, K.R. Puram Hobli, Bengaluru there is no order of conversion for non agriculture. In ExD24 two certified copies of tax paid receipts are marked. The ExD25 is certified copy of the application given by the Tahsildar to Y.N.Kondareddy for surveying the land and making phode in Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village. The ExD26 certified copy of sale deed dt.17/07/1991 discloses that Narayanappa S/o late Chikka Abbaiah, Nagaraj S/o late Chikka Abbaiah and Jayaram S/o late Chikka Abbaiaha i.e. defendants No.1 to 3 have sold 30 Gunatas in Sy.No.81/2 of Hormavu village, K.R.Puram Hobli, Bangalore South Taluk in favour of defendant No.4 51 Judgment OS.No.17466/2004 Madireddy Sripadmavathi W/o Jagadish. The ExD27 is certified copy of order sheet in OS.No.1208/04 of Prl. Civil Judge(Jr.Dn) Bengaluru Rural filed by Lazarus K against Kondareddy Y.N. and ExD28 is certified copy of order on I.A.1 in the said suit. The ExD29 is certified copy of survey sketch and ExD30 is certified copy of mahazar relating to Sy.No.81/3 of Horamavu village. The ExD31 is certified copy of endorsement issued by Assistant Commissioner, Bengaluru north taluk to Y.N. Kondareddy informing about non-filing of any case for purchase of land in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village in violation of Section 79 (a) and (b) of Karnataka Land Reforms Act. The ExD32 is information furnished by Assistant Revenue Officer, BBMP, Horamavu Sub Division Mahadevapur Division Bengaluru to Y.N.Kondareddy, as said Y.N.Kondareddy called information to furnish details in which survey number site No.4, 5, 6 & 7, house list No135/4 situated at Horamavu village as per sale deed dated 07/09/2002 of Kishorekumar is situated and also called 52 Judgment OS.No.17466/2004 documents survey sketch map, layout plan, and authenticated document to show where exactly said site is situated, the Assistant Revenue officer, BBMP, Horamavu Sub Division given information that the property is revenue extension and not entered in assessment book and survey sketch, layout plan relating to said site is not available in the office and site is unauthorized extension and not entered in the assessment record of their office.
37. The contention of plaintiff that he has purchased suit schedule property from the Karnataka Nair Service Society under registered sale deed on 29/01/2004. The plaintiff has produced and marked ExP1 to ExP16, out of those documents the ExP1 is Sale deed regarding purchase of suit schedule by plaintiff from the Karnataka Nair Service Society, ExP2 and ExP3 are encumbrance certificates, ExP4 is construction permission obtained by plaintiff. The plaintiff has not produced the katha extract and katha certificate issued by BBMP to show that his name is appeared in the revenue records of BBMP. Further as per the plaintiff 53 Judgment OS.No.17466/2004 defendant No.1 to 3 are the owners of Sy.No. 81/2 of Horamavu village measuring to an extent of 1 acre 24 guntas of Horamavu village and they have formed 47 sites in the said land and offer to sell the said sites to the intending purchasers to their Power of Attorney holder i.e. defendant No.4. Accordingly as per ExP13 defendants No.1 to 3 through their GPA holder Madireddy Sripadmavati executed sale deed in favour of Karnataka Nair Service Society Bengaluru in respect of sites No.2, 3, 4, 5, 7 of Janyantigram, Horamavu village, K.R.Puram Hobli, Bangalore East. He has purchased suit schedule property from Karnataka Nair Service Society Bengaluru on 29/01/2004. The defendant No.1 examined as DW.1 denied the execution of Power of Attorney in favour of defendant No.4 Madireddy Sripadmavathy and also denied regarding formation of 47 sites in 1 Acre 24 guntas in Sy.No.81/2 of Horamavu village and sold the sites to different purchasers. The defendant No.1 to 3 contention that they have sold 1 54 Judgment OS.No.17466/2004 acre 7 guntas + 6 guntas pot kharab land to the defendant No.5 Y.N. Kondareddy on 01/03/2004.
38. The defendant No.5 examined as DW.2 deposed that he has purchased the land 1 acre 7 guntas + 6 Guntas pot kharab land in Sy.No.81/2 of Horamavu village from defendant No.1 to 3 Narayanappa and others and since then he possession and enjoyement of said agricultural land. The defendant No.5 denied regarding formation of 47 site in Sy.No.81/2 measuring 1 Acre 24 Guntas of Hormavur. In support of his oral contention the DW.2 marked ExD5 certified copy of the sale deed dated 01/03/2004 regarding purchase of 1 Acre 13 Gunta in Sy.No.81/2 of Horamavu village by him from the defendants No.1 to 3 and also produced rectification deed about rectification of boundaries towards west, north, south in sale deed as per ExD6. Further as per ExD7 mutation register katha of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village transferred in the name of defendant No.5 from defendants No.1 to 3. Further as per ExD8 name of defendant No.5 is appeared in the record of 55 Judgment OS.No.17466/2004 rights of the land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village for the year 2004-05. The DW.2 has marked ExD9 Atlas, ExD10 Tippani, ExD11 form No.5, ExD12 Karnataka Revision Settlement Akaar Bandh relating to Sy.No.81/2 of Horamavu village and afterwards new number was given as Sy.No. 81/3. Further the ExD13 (1) to ExD13(4) are records of rights of the Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village in the year 2004-2005 till 2009-2010 discloses the name of defendant No.5 Y.N. Kondareddy as owner and cultivator of the said land. Under the circumstances the burden is on the plaintiff to prove that the said land bearing Sy.No. 81/2 to an extent of 1 acre 24 guntas of Horamavu village the defendants No.1 to 3 formed 47 sites and sold to the different purchasers through their GPA holder defendant No.4. But to prove said fact the plaintiff has not produced the conversion order copy of said land measuring 1 acre 24 guntas in Sy.No.81/2 of Horamavu village for non-agricultural purpose issued by the concerned authority along with layout plan, sketch of the said land and 56 Judgment OS.No.17466/2004 also house list numbers given to the said 47 sites by the concerned revenue authority. The plaintiff contended that to the suit property house list katha No.135/4 of Horamavu village was given. But to prove said fact there is no specific document produced by the plaintiff.
39. Further the plaintiff examined as PW.1 in his cross- examination deposed evidence that "I do not know the total extent of Sy.No.81/2. I do not know who are the persons had right and interest in Sy.No.81/2 in 2004. I have got sale deed and title deeds so I have filed suit. One society has sold me, I was not present at the time of purchase by my vendor. At the time of purchase I have seen copy of sale deed of my vendor. I do not know date and year of the sale deed. I do not know from whom Karnataka Nayar Society purchased it. I have not verified conversion order of original Sy.No, the Sy.No.81/2 was already developed area I do not know who has made layout. I have not taken legal opinion for purchase of site. 57
Judgment OS.No.17466/2004 I do not know who are the original owners of Sy.No.81/2".
40. Therefore the evidence of PW.1 discloses that he is not aware about original owners of Sy.No.81/2 and he do not know who made layout and he has not verified conversion order of original Sy.No.81/2. Where as in the plaint he contended that in Sy.No.81/2 of Horamavu village suit property is formed. To prove said contention the plaintiff has not produced any documents. Further the plaintiff has not produced the sale deed of his vendor's vendor or title deeds standing in the name of vendor's vendor relating to suit schedule property. Further the plaintiff has not produced the khata extract and khata certificate of suit schedule property standing in his name in the BBMP records as on date of filing suit. The documents produced by the plaintiff not sufficient to come to conclusion that the plaintiff is the lawful owner and in possession of the suit schedule property as on date of suit. The defendants No.1 to 3 have denied the formation of sites in Sy.No.81/2 of Horamavu village and 58 Judgment OS.No.17466/2004 also title of the plaintiff over the suit schedule property. Under the circumstances the suit of the plaintiff for bare injunction is not maintainable.
41. The DW 2 marked ExD17(1) endorsement discloses that house list No.122/1, 122/2, 135/4, 129/2, 129/3 relating to Sy.No.81/2 New Sy.81/3 of Horamavu village, the documents verified in office, but the said documents are not found in the revenue records in the name of Naryanapappa, Nagaraju and Jayaram. Further ExD17(2) endorsement discloses that no sanction plan or layout plan relating to Site No.20, 29, 27, 28, 26, 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45, 42 of Sy.No.81/2 new Sy.No.81/3 of Horamavu village are found in their records, and such documents are not in the name of Nagaraja, Narayanappa and Jayarama in their office records. In ExD17(3) the defendant No.5 called information regarding furnishing copies of khatas of Sites No.20, 29, 28, 27, 26, 37, 21, 41, 38, 4, 5, 6, 7, 36, 44 and 45, 42, 23 in katha Nos.122/2, 122/1, 135/4 of Horamavu village and the Revenue Officer furnished the information that Namuna 59 Judgment OS.No.17466/2004 No.9 and 10 of the said properties are not in the name of Nagaraju, Narayanappa and Jayarama. Further the ExD23 is endorsement issued by the Tahsildar, Bengaluru East Taluk mentioning in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village there is no conversion of land. Therefore from these exhibits discussed above it is clear that the land bearing Sy.No.81/2 (new No.81/3) measuring an extent of 1 acre 07 guntas of Horamavu village not converted for agricultural purpose and no sites were formed in the said land. Further records of rights for the years 2004-2005 till 2009-2010 marked by DW.2 at ExD8, ExD13(1) to ExD13(4) discloses the land measuring 1 acre 7 guntas in Sy.No.81/2 of Horamavu village in the name of defendant No.5 Y.N. Kondareddy is an agricultural land, hence at the time of filing suit by plaintiff in the year 2004 said land is agricultural land. That in the citation reported in ILR 2005 Karnataka 884 relied by the defendant No.5 counsel it is held that "Unless the Court is satisfied with regard to material details in the light of the material evidence with 60 Judgment OS.No.17466/2004 regard to the identification of the property, no declaration and injunction can be granted." Further in the another citation reported in ILR 2007 Karnataka 339 relied by the defendant No.5 counsel it is held that "In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit- Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property -When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable- Appeals are dismissed". The both citation discussed above applies to the present case in hand, as in the present suit the plaintiff failed to prove his lawful ownership, possession and 61 Judgment OS.No.17466/2004 enjoyment over the suit schedule property as on date of suit, hence question of interference by the defendants in the said property does not arise. Hence plaintiff is not entitle for relief of permanent injunction against the defendants. The plaintiff failed to prove Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative.
42. Issue No.4:
In view of above discussion I proceed to pass following :ORDER:
The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the stenographer, typed by him. Then corrected online and taken print out, corrected, signed and pronounced by me in the open court on this 22nd day of September 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
:ANNEXURE:62
Judgment OS.No.17466/2004 WITNESSES EXAMINED FOR THE PLAINTIFF: PW.1: Kishorekumar S/o G.Balakrishnan DOCUMENTS MARKED FOR THE PLAINTIFF ExP1 : Sale deed ExP2 & 3: Encumbrance certificates ExP4 : Building construction Licence ExP5 & 6: Tax paid receipts ExP7 to 12: Photos ExP13 : Certified copy of sale deed ExP14 : Layout plan copy ExP15 : Sanctioned plan ExP16 :Copy of police complaint WITNESSES EXAMINED FOR THE DEFENDANTS DW.1: Narayanapa S/o Venkataswamappa @ Chikkabbaiah DW.2: Y.N. Kondareddy S/o Narayana Reddy DOCUMENTS MARKED FOR THE DEFENDANTS
ExD1: Certified copy of plaint in OS.No.3483/2005 ExD2: Certified copy of Written Statement in OS.No.3483/2005 ExD3: Certified copy of plaint in OS.No.16322/2005 ExD4: Certified copy of Written Statement in OS.No.16322/2005 ExD5: Certified copy of sale deed dated 01/03/2004 ExD6: Certified copy of Rectification deed ExD7: Certified copy of Mutation ExD8: Certified copy of RTC ExD9: Certified copy of Allot copy ExD10: Certified copy of Hissa Tippani ExD11: Certified copy of Form No.5 ExD12: Certified copy of Akhar Bandh 63 Judgment OS.No.17466/2004 ExD13(1) to (4): Certified copies of RTC ExD14: Certified copy of Encumbrance Certificate ExD15: Certified copy of Endorsement by Horamavu G.P ExD16: Certified copy of Sale deed dated 15/04/1972 ExD17 (1) to ExD17(a): Certified copy of BBMP endorsement ExD18(1) to (3): Certified copy of Mutation Register extract ExD19: Certified copy of Allot copy ExD20: Certified copy of Police endorsement ExD21: Certified copy of RTI information by Sub-Registrar, Banaswadi ExD22: Certified copy of Endorsement of Deputy Commissioner ExD23: Certified copy of Endorsement by Tahasildar ExD24(1) & (2): Certified copies tax paid receipts ExD25: Certified copy of Application to Tahasildar ExD26: Certified copy of Sale deed dated 17/07/1991 ExD27: Certified copy of Order sheet in OS.No.1208/2004 ExD28: Certified copy of Order on IA No.1 in OS.No.1208/2004 ExD29: Certified copy of Survey Sketch ExD30: Certified copy of Mahazar ExD31: Certified copy of endorsement ExD32: Certified copy of RTI information by Assistant Revenue Office, Horamavu BBMP.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.