Bangalore District Court
Dashratha Reddy vs Munireddy on 23 September, 2017
IN THE COURT OF THE VII.ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH.No.19)
Dated: This the 23rd Day of September 2017
Present: Smt.Saraswati.V.Kosandar, B.Com., LL.M.,
VII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.146/2004
Plaintiffs: 1. Dashratha Reddy, S/o
late Chinnappa, Aged
about 52 years.
2. Kodandarama Reddy,
S/o late Chinnappa, Aged
about 48 years.
3. Nagesh Reddy,S/o late
Chinnappa, Aged about
46 years.
4. Rajendra, S/o late
Chinnappa, Aged about
43 years.
5. Gopal Reddy, S/o late
Muniyappa, aged about
54 years.
6. Munireddy, S/o late
Muniyappa, aged about
52 years.
7. Prakash, S/o late
Muniyappa, aged about
48 years.
2 O.S.No.146/2004
8. Smt.Vanamala, W/o late
Vijayendra, Aged about
30 years.
All are residing at
Devarabeesanahalli
Village, Varthur Hobli,
Bangalore East Taluk.
(By Sri.V.L., Advocate)
Vs.
Defendants: 1. Munireddy, Since died by his
L.Rs.,
1(a) Rukamma, W/o Late Muni
Reddy, Major.
1(b) Srinivas, S/o Late Muni
Reddy, Major.
1© Shamanna, S/o Late Muni
Reddy, Major.
1(d) Dayananda, S/o Late Muni
Reddy, Major.
1(e) Abbayya, S/o Late Muni
Reddy, Major.
All are residing at
Devarabeesanahalli, Bellandur
Post, Varthur Hobli, Bangalore -
37.
1(f) Rama (Ammi), W/o
S.A.Babu Reddy, No.7, 7th
Cross, 35th Main Road,
S.P.A.R.Layout, B.T.M. 1st
Stage, Bangalore - 68.
3 O.S.No.146/2004
2. Krishna Reddy, S/o late Sidda
Reddy, Aged about 70 years.
3. Ramaiah Reddy, Since died
by his L.Rs.,
3(a) Rathnamma, W/o late
Ramaiah Reddy, Aged about 65
years.
3(b) Srinivasa Reddy, S/o late
Ramaiah Reddy, Aged about 38
years, 3(a) and 3(b) are R/at
Devarabeesanahalli, Bellandur
Post, Bangalore - 560 037.
3(c ) Smt.Shakunthala, W/o
Nagaraj, D/o Late Ramaiah
Reddy, Aged about 44 years,
R/at Govinda Shetty Palya Road,
Electronic City Post,
Bangalore - 560 100.
3(d) Smt.Sulochana, W/o
Thagaraj, D/o late Ramaiah
Reddy, Aged about 42 years,
R/at Govinda Shetty Palya,
Electronic City Post,
Bangalore - 560 100.
3(e) Smt.Shashikala, W/o Babu
Reddy, D/o late Ramaiah Reddy,
Aged about 40 years, R/at
Govinda Shetty Palya, Electronic
City Post, Bangalore - 560 100.
4 O.S.No.146/2004
3(f) Smt.Rani, W/o Prabhakara,
D/o late Ramaiah Reddy, Aged
about 36 years, R/at Govinda
Shetty Palya, Electronic City
Post, Bangalore - 560 100.
4. Muniswami Reddy, S/o late
Sidda Reddy, Aged about 52
years.
The defendants No.1 to 4 are
R/a Devarabeesanahalli
village, Varthur Hobli,
Bangalore East Taluk.
5. B.A.Krishna Reddy, S/o late
Abbaiah Reddy, Aged about
75 years, R/a Marathahalli
village, Bangalore - 560 037.
6. Gopal Reddy, S/o late
Abbaiah Reddy, Aged about
60 years, R/a New
Thippasandrta, Bangalore.
7. Jayarama Reddy, S/o late
Abbaiah Reddy, Aged about
58 years, R/a Munekolala
Extn., Varthur Hobli,
Bangalore East Taluk.
8. Ramaswamy Reddy, S/o late
B.G.Hanuma Reddy, Aged
about 55 years.
5 O.S.No.146/2004
9. Lakshmana Reddy, S/o late
B.G.Hanuma Reddy, Aged
about 65 years.
10.Guruva Reddy, S/o late
B.G.Narayana Reddy, Aged
about 65 years.
11.Venkatesh Reddy, S/o late
B.G.Narayana Reddy, Aged
about 51 years.
The defendants 8 to 11 are
R/a Devarabessanahalli
Village, Varthur Hobli,
Bangalore East Taluk.
(Sri.H.T.K., Advocate for
D2,6,7,10,11, Sri.N.N., for
D3(a)(b)Sri.C.N.S., for D12
& 13, Sri.J.N. for D8)
Date of institution 05.01.2004
of suit
Nature of the suit Declaration & Injunction
Date of 04.11.2009
commencement of
recording of
evidence
Date on which 23.09.2017
Judgment was
pronounced
Total duration Days Months Years
18 08 13
6 O.S.No.146/2004
/ JUDGMENT /
The present suit is filed by the plaintiffs seeking
the relief of declaration that they are the owners of suit
schedule properties and to grant permanent injunction
restraining defendants from interfering with plaintiffs
possession over the suit schedule properties and to
grant such other reliefs as this Court deems fit under
the circumstances of the case.
2. In brief, the case of the plaintiff's reads as
under:-
SCHEDULE
1. The land bearing Sy.No.6/11 measuring 1
gunta situated at Devarabeesanahalli, Varthur Hobli,
Bangalore East Taluk bounded on the:
East by : Road
West by : Road
North by: Krishna Reddy's property
South by: Main Road
7 O.S.No.146/2004
2. The land bearing Sy.No.6/12 measuring 3
guntas, situated at Devarabeesanahalli, Varthur Hobli,
Bangalore East Taluk bounded on the:
East by : Road
West by : Lakshman Reddy's property
North by: Lakshman Reddy's properties
South by: Main Road
3. That the plaintiffs are the members of
Hindu undivided Joint family and they are in joint
possession of above suit properties bearing survey
No.6/11 measuring 1 gunta and survey No.6/12
measuring 3 guntas situated at Devarabesanahalli,
Varthur Hobli, Bangalore East Taluk. It is the specific
case of the plaintiffs that they have acquired suit
schedule properties by way of inheritance and the
name of their father are entered in the RTC extract
pertaining to suit properties. The plaintiffs grandfather
8 O.S.No.146/2004
Chancha Reddy had acquired the suit schedule
properties from his ancestors and his name was
mutated in the Revenue records. After the death of
Chancha Reddy the revenue records were mutated in
the name of father of plaintiff No.1 to 4 by name
Chinnappa and father of plaintiffs 5 to 7 late
Muniyappa. Chinnappa and Muniyappa were in actual
possession and enjoyment of suit schedule property.
After the death of the plaintiffs are in peaceful
possession and enjoyment of suit schedule properties
as owners. The plaintiffs have not partitioned the suit
properties. The land in sy.no.6/11 and 6/12 are
adjoining to each other. That the plaintiffs have left
space measuring 12 feet on the eastern side of the
land bearing sy. No.6/11 for way to reach the lands of
the adjoining owners on the northern side . The
owners of land on the northern side of suit schedule
properties are using said 12 feet road to reach their
properties. The plaintiffs have not suppressed any
9 O.S.No.146/2004
material facts before this court. The defendants have
no manner of right, title and interest over the suit
schedule properties. It is alleged that on 1.11.2003
and on 2.11.2003 the defendants came near the suit
schedule properties and tried to lay foundation on the
southern side of the suit schedule properties. The
plaintiffs resisted the illegal acts of the defendants and
approached the jurisdictional police seeking protection.
The police declined togive protection on the ground
that the case is purely of civil in nature and advised the
plaintiffs to approach this Court. In this connection the
plaintiffs have filed O.S.657/03 and O.S.No.659/03
before II Addl. Prl. Judge (Jr.Dn.) Rural at Bangalore.
On 7.11.2003 the defendants actively colluding with
each other again tried to put up construction in the suit
schedule properties. Therefore the plaintiffs
approached this court with above suit and
accordingly, prayed to allow the suit. Hence, this suit.
10 O.S.No.146/2004
4. After service of suit summons, the
defendants have appeared through their respective
Counsels. During pendency of the suit defendant
No.1and 3 are reported dead and their Lrs are brought
on record. Defendants No.3(a) and 3(b), defendant
No.8 and defendant NO.12 and 13 have filed their
separate written statements.
5. The defendants No.3(a) and (b) have filed
written statement contending that the suit of the
plaintiff is not maintainable. It is contended that the
plaintiffs have filed this suit by suppressing material
facts and with a created story with an intention to knock
of the valuable properties belonging to these
defendants. It is contented that there are no properties
at all as described by the plaintiffs in and around the
properties of these defendants. The schedule and
boundaries furnished to the item No.1 property is
imaginary. The suit of the plaintiffs in respect of item
No.1 of the suit schedule is hopelessly barred by law of
11 O.S.No.146/2004
limitation. It is denied that plaintiffs are in joint
possession of the land bearing sy.No.6/11 measuring 1
gunta and sy.No.6/12 measuring 3 gunta. The
plaintiffs are not at all residing at Devarabisanahally
village at any point of time. The plaintiffs are
permanent resident of Marathahalli village and they are
residing there for the last 40 years. It is denied that
grand father of plaintiffs by name Chanchareddy was
the owner and his name was mutated in the revenue
records and after his death all the revenue records
mutated in the name of plaintiffs father and they were
in joint possession and enjoyment of said property. It
is denied that till today plaintiffs are in joint possession
and enjoyment of the suit properties. The alleged
tippani and pahani copies produced by the plaintiffs are
created and fabricated documents for the purpose of
filing this suit. It is also denied that plaintiffs have left
the 12 feet space on the eastern side of the land
12 O.S.No.146/2004
bearing sy.No.6/11 for the purpose of way to reach the
lands of adjoining owners.
6. It is submitted that the plaintiffs by giving
wrong numbers, wrong measurement and wrong
boundaries are indirectly claiming the rights over the
properties of these defendants in sy.No.6/11. It is
denied that these defendants on 2.11.2003 attempted
to lay foundation in the suit property and plaintiffs
resisted the illegal acts of these defendants. There is
no cause of action to file the suit, the court fee paid on
the plaint is insufficient and therefore suit of the plaintiff
is liable to be dismissed.
7. It is submitted by defendants No.3(a) and
3(b) that they are the sole and absolute owners and in
lawful possession and enjoyment of the suit item No.1
of the suit schedule properties. The ancestors of the
plaintiff have already sold the item No.1 and other
properties to the grand father of these defendants
13 O.S.No.146/2004
through a registered sale deed dtd:17.4.1926. These
defendants have already constructed building in their
properties and permanently residing there since their
fore-fathers. These defendants have left front portion
vacant and have planted several coconut trees now
aged about 40 years. These defendants have dug a
bore-well in the vacant space in the year 2001 itself.
The plaintiffs taking advantage of the said vacant
space of these defendants are making illegal activities
to knock of the property. These defendants have also
allowed the government to install a bore-well and put
up a water tank in item No.1 property belonging to
them. The documents produced by the plaintiffs will
not confirm any title to them. The suit filed by plaintiff
No.1 in O.S.7270/03 before CCH-13 in respect of
alleged property bearing sy.No.6/7 measuring 1 gunta
of Devarabisanahalli against some of the defendants
came to be dismissed by holding that plaintiffs are not
in possession of alleged property. Accordingly among
14 O.S.No.146/2004
these and other grounds they have prayed to dismiss
the suit of the plaintiffs.
8. Defendant No.8 has filed separate written
statement contending that suit of the plaintiff is not
maintainable either in law or on facts. He has denied
that plaintiffs are the owners and joint possession of
the suit schedule properties. It is contented that suit
item No.1 belongs to defendants No.1 to 7 and item
No.2 belong to 8th defendant. Item No.2 of the suit
schedule property originally belonged to one
P.G.Hanumareddy which was his ancestral property
The sy. Number of said property is 6/14 and now it is
given gramatana house list number 11. Sri. B.G.
Hanumareddy executed a registered will dtd:3.3.1987
infavour of the daughter of the 8th defendant by name
Soujanya. After the death of B.G.Hanumareddy, the
defendant No.8 and his family members are in peaceful
possession and enjoyment of item No.2 property as
absolute owners. They are entitled to protect their
15 O.S.No.146/2004
properties in respect of which the plaintiffs are laying
false claim. The suit is bad for non-joinder of
necessary and proper parties. The Court fee paid on
the plaint is insufficient and incorrect. Accordingly,
among these and other grounds, defendant No.8 has
prayed to dismiss the suit.
9. defendants No.12 and 13 have filed written
statement contending that suit of the plaintiffs is not
maintainable and submitted that the plaintiffs have filed
the above suit by suppressing real facts and with an
intention to knock of the properties belonging to these
defendants. It is stated that these defendants No.12
and 13 are in lawful possession and enjoyment of the
suit schedule properties which they have inherited from
Kathra Reddy, it is denied that plaintiffs are in joint
possession and enjoyment of suit schedule properties
as owners. The plaintiffs have got created the
documents by colluding with Revenue officials. That is
no cause of action to file the suit and one alleged is
16 O.S.No.146/2004
only for filing the suit with ulterior motive. Court fee
paid is not sufficient and accordingly among these and
other grounds they have prayed to dismiss the suit.
10. On the basis of the above pleadings, my
Learned Predecessor has framed the following issues:
1. ªÁ¢AiÀÄgÀÄ zÁªÁ µÉqÀÆå¯ï D¹ÛAiÀÄ°è ªÁgÀ¸ÀÄzÁgÀgÁV
PÁ£ÀÆ£ÀÄ §zÀÞ ªÀiÁ°PÀvÀé ºÉÆA¢zÀÝgÉAzÀÄ ªÁ¢AiÀÄgÀÄ
gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄà ?
2. zÁªÁ µÉqÀÆå¯ï D¹ÛAiÀÄ°è ªÁ¢AiÀÄgÀ ±ÀÁAwAiÀÄÄvÀ
¸Áé¢Ãü £Á£ÀĨsª
À ÀPÉÌ ¥ÀæwªÁ¢AiÀÄgÀÄ CrØ ¥Àr¹zÁÝgÉAzÀÄ
ªÁ¢AiÀÄgÀÄ gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄÃ?
3. ªÁ¢AiÀÄgÀÄ zÁªÀzÀ°è PÉýzÀ ¥ÀjºÁgÀPÉÌ CºÀðgÉà ?
4. zÁªÀªÀÅ ¥ÀPÀëPÁgÀgÀ vÀ¥ÀÅà ¸ÉÃ¥ÀðqɬÄAzÀ ¸ÉÆÃgÀUÀÄwÛzÉAiÉÄà ?
5. AiÀiÁªÀ wÃ¥ÀÅð , AiÀiÁªÀ rQæ ?
Addl. Issues framed on 19.7.2010
1. Whether suit is undervalued and Court
fee paid is incorrect?
2. Whether suit is barred by limitation?
3. Whether defendants No.12 & 13 prove
their title and possession as alleged in
para 7 of their written statement?
17 O.S.No.146/2004
11. In support of their case, the plaintiff No.1
examined himself as P.W.1 and got marked documents
as per Exs.P1 to P31 and closed their side of evidence.
On the side of defendants defendant No.8 examined
himself as D.W.1 and got marked documents as per
Ex.D1 to 13. Defendant No.3(b) examined himself as
D.W.2 and got marked documents as per Ex.D14 to
32. Defendant No.13 examined himself as D.W.3, no
documents are marked by D.W.3 and closed their side
evidence.
12. Heard the arguments of Learned Counsel
for plaintiffs and defendants and perused the records.
13. On careful consideration of the pleadings,
the oral and documentary evidence on record and the
points urged during the course of arguments, I answer
the above issues as under
Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : In the negative
18 O.S.No.146/2004
Issue No.4 : In the affirmative
Issue No.5 : As per final order
for the following:
Additional issues framed on 19.7.2010
Addl.Issue No.1 : In the affirmative
Addl.Issue No.2 : In the negative
Addl.Issue No.3 : In the negative
REASONS
14. Issues No.1 & 2 :- Since these issues
are interconnected to each other, they are taken up
together for consideration to avoid repetition.
Issues No.1 and 2 are framed casting burden
on the plaintiffs to prove that they are the owners and
in peaceful possession and enjoyment of the suit
properties.
15. It is the case of plaintiffs that they are the
members of Hindu undivided joint family and are in
joint possession and enjoyment of suit properties
19 O.S.No.146/2004
bearing survey No.6/11 measuring 1 gunta and survey
No.6/12 measuring 3 guntas situated at
Devarabesanahalli, Varthur Hobli, Bangalore East
Taluk. It is the specific case of the plaintiffs that they
have acquired suit schedule properties by way of
inheritance and the name of their father are entered in
the RTC extract pertaining to suit properties. The
defendants are strangers and tried to put up foundation
in the suit schedule property without having any right,
title over the same. When the plaintiffs questioned the
illegal acts of the defendants, they denied the title of
the plaintiffs over the suit schedule properties.
Therefore, the plaintiffs are constrained to file the suit
seeking the relief of declaration of title and for
permanent injunction and accordingly, prayed to allow
the suit.
16. The defendants 3a and 3b and defendant
Nos.8, 11 and 12, who have filed written statement
have denied that the plaintiffs are owners and in actual
20 O.S.No.146/2004
possession of the suit properties and contended that
they are owners and in possession of properties
claimed by the plaintiffs.
17. The plaintiffs in order to prove their claim
have examined plaintiff No.1 as Pw.1 and produced the
RTC extracts and tippani copy along with survey
sketch pertaining to suit properties. 1st plaintiff who is
examined as Pw.1 in his evidence has reiterated the
plaint averments and specifically deposed that earlier
his grand father Chancha Reddy was the owner of the
suit schedule properties and his name was mutated in
the revenue records. After the death of Chancha
Reddy the revenue records were mutated in the name
of his father Chinnappa. During their life time, his
grand father and father were in actual possession and
enjoyment of the suit property and after their death the
plaintiffs are in joint possession and enjoyment of suit
schedule properties as owners thereof and accordingly,
he has prayed to decree the suit.
21 O.S.No.146/2004
18. In support of his oral evidence, Pw.1 got
marked the atlas sketch as per Ex.P1. He got marked
RTC extracts for the year 1998-99 to 2008-09
pertaining to survey No.6/11 and 6/12 as per Exs.P2 to
P6 and 10 to 25 respectively. He got marked two
photographs with negatives as per Exs.P7 and 8 and
Exs.P7a and 8a respectively and receipt issued by
photo studio as per Ex.P9. He got marked sketch
issued by ADLR., as per Ex.P27 and certified copies of
hissa tippani as per Exs.P28 to P30 respectively.
19. During cross-examination, he states that his
grand father had two sons and a daughter by name
Akkayyamma. His father has 4 sons and one
daughter. His sister is alive and there is no partition
between them. He also states that his younger uncle
Muniyappa has died leaving behind him 4 sons and
two daughters. He does not know how his grand
father acquired suit properties. He states that many
22 O.S.No.146/2004
houses have come up around the suit item Nos.1 and 2
and those lands have lost character of agriculture. The
Bellandur Grampanchayath has laid sewerage pipeline
in survey No.6/12. He admits that his family is owning
lands in survey No.6/1, 6/9a and 6/15 and another
land. They have filed separate suits in respect of other
survey number properties, but denied that said suits
have been dismissed. He admits that he is residing in
Marathahalli for over 20 years. He admitted that to the
North of suit property there is a clinic but he do not
know in which survey number said clinic is situated.
He also admitted that there are four coconut trees
towards the north of this clinic by the road side. But,
he has never planted those coconut trees.
20. He admits that the in Exs.P7 and P8
photographs produced by him a water tank is visible in
land in survey No.6/11 and same has been put up by
the Government for the use of public. There are no
agricultural activities in and around the properties for
23 O.S.No.146/2004
over 30 years. He has not made any application for
transfer of khatha in his name. He denied that they
have got created RTC extract and survey sketch
produced by them by colluding with revenue authorities
and the suit property as claimed by them does not
exist.
21. As noted above defendants while denying
the case of the plaintiffs, have contended that they are
owners and in possession of suit properties. In support
of his contentions, the defendant No.8 has appeared
before the Court and examined himself as Dw.1,
wherein he has reiterated his written statement
contentions and specifically deposed that the
boundaries shown in the item No.2, is in respect of
land in survey No.6/14. He states that the property in
survey No.6/14 originally belonged to his father
B.G.Hanumareddy. His father has executed a
registered will dated:3.3.1987 in favour his daughter
Soujanya. By virtue of this will, himself and his family
24 O.S.No.146/2004
members are in possession and enjoyment of suit item
No.2 property and paying taxes to the concerned
authority. Earlier, there was a water tank in the suit
schedule property and Ballundar Grampanchayath has
formed a road to reach the suit schedule property and
also has laid water sewerage system. The plaintiffs
are not in possession of any of the properties and
accordingly prayed to dismiss the suit.
22. In support of his oral evidence, Dw.1 got
marked the will dated: 3.3.1987 as per Ex.D1, tax paid
receipt as per Exs.D2 to 6, RTC extracts as per Exs.D7
to D10, tax demand register extract as per Exs.D11
and 12 and certified copy of sale deed dated:
29.6.1946 as per Ex.D13. During cross-examination,
he pleads ignorance about the total measurement of
land in survey No.6 of Devaranabisanahalli. He states
that survey No.6/14 is in existence since the life time of
his father. He do not know whether survey No.6/11
and 6/12 are in existence. He states that these survey
25 O.S.No.146/2004
numbers are not adjacent to survey No.6/14. There is
a car shed in survey No.6/14. He cannot say the
measurement of survey No.6/14. He admitted that as
per photos marked at Exs.D30 and 31 the suit
schedule properties are vacant land. He denied that
suit schedule properties and the property in survey
No.6/14 are different.
23. The defendant No.3a has also appeared
before the Court and examined himself as Dw.2,
wherein he has reiterated his written statement
contentions and specifically deposed that they are the
absolute owners and in physical and lawful possession
and enjoyment of suit item No.1 property. He has
deposed that his grand father has purchased suit item
No.1 property through a registered sale deed
dtd:17.4.1926 from the ancestors of the plaintiffs and in
actual possession of said property. Earlier the plaintiffs
had filed another suit in O.S.No.7270/03 before this
court in respect of property in sy.no.6/7 and said suit
26 O.S.No.146/2004
came to be dismissed by holding that they are not in
possession of alleged property. They have planted
several coconut trees and have dug a borewell in suit
item No.1 property and have allowed the Government
to install a borewell and water tank in the said property.
On 9.12.1967 his father and brothers have partitioned
their respective joint family properties under a
registered partition deed wherein suit item No.1 was
fallen to the share of his family. The plaintiffs have
also already partitioned their respective properties
through partition deed dtd:24.4.2004 and 03.08.2005
wherein there is no mention about these suit schedule
properties. The plaintiffs have filed the above suit by
furnishing wrong measurement and wrong boundaries
and intending to knock of the properties belonging to
these defendants. Accordingly prayed to dismiss the
suit.
24. In support of his oral evidence D.W.2 got
marked certified copy of sale deed dtd:14.7.1927 and
27 O.S.No.146/2004
26.04.1926 as per Ex.D14 and 15 respectively. He got
marked certified copy of partition deed dtd:9.12.1967 ,
14.7.1922 and rectified partition deed dtd:24.4.2004
and 03.08.2005 as per Ex.D16, 17, 19 and 20
respectively. He also got marked one bill issued by
Sundaram Borewell as per Ex.D21, water tax bills,
lease deeds, photos and C.D. as per Ex.D22 to 32
respectively.
25. During cross examination DW2 admitted
that he has not produced any documents to show that
land in sy.no.6/11 and 6/12 are entered in the name of
himself or his father. He pleads ignorance regarding
the total extent of land in sy. No.6 and admitted that he
is claiming ownership in respect of sy.no.6/4. He
admitted that he has not produced any survey sketch
regarding sy.No.6/4. He admits that there are buildings
in sy.no.6/4 and as per photos marked at Ex.D30 and
31 the suit property is vacant land. However he denied
28 O.S.No.146/2004
that he has no right or possession with respect to suit
property.
26. The defendant No.12 by name Munireddy
has also appeared and examined himself as D.W.3
wherein he has categorically stated that the suit
properties bearing sy. No.6/11 and 6/12 are ancestral
properties of his family and plaintiffs nor defendants
No.1 to 11 have any right title or interest over the suit
schedule properties. During cross examination he has
admitted that he has not produced any documents to
show that suit schedule properties are entered in the
name of his ancestors but denied that they have no
any semblance of right over the suit schedule
properties.
27. The learned Counsel for plaintiffs relied upon
the decisions reported in AIR 1976 SC 1485, AIR 1976
between Vishwa vijaya bharathi Vs Fakhrul Hassai
and others., 2016(5) KCCR 509 between Subhash
29 O.S.No.146/2004
Chandra and another Vs. Land Tribual Dharwar and
others., LAWS (KAR) 2014 2 11 between Shankar
Bhatt Vs. State of Karnataka ., AIR 2015 SC 1236
between Zarif Ahamed (D)thr LRs and another Vs.
Mohammed Farooq., LAWS (KAR) 2007 1 27
between Gangappa Bankappa Angadi Vs. Basappa
Bankappa Sannakoodala., LAWS (KAR) 2010 12 29
between K.Jagadheshwar Vs. Sharadha., ILR 1985
KAR 3872 between Stumpp schedule and Somappa
Pvt. Ltd. Vs. Chandrappa and relevant provisions of
Karnataka Land Revenue Act 1964 and Rule 46 of The
Land Revenue Rules 1966 and argued that though the
plaintiffs have filed the above suit for the relief of
declaration on the basis of revenue records, same is
maintainable and the plaintiffs are entitled for the relief
of declaration and injunction on the basis of possession
over the suit schedule properties.
28. Per contra the learned Counsel for defendant
No.3a and 3b relied upon the decisions reported in
30 O.S.No.146/2004
2016(5) KCCR 1233, between Annappa Vs. Lakshmi
Devi Devar temple and Nulichandayya Devasthana
committee and others, ILR 2012 KAR 4958 between
Hullappa Vs. The state of Karnataka through Deputy
Commissioner , Bidar and others., 2014 (2) Supreme
Court cases 269 between Union of India and others Vs.
Vasavi Co-operative Housing Society Ltd., and others.,
ILR 2005 KAR 884 between T.L.Nagendrababu Vs.
Manohar Rao Pawar., AIR 2009 Supreme Court
cases 2966 between T.K.Mohammed Abubucker(D)thr.
LRs and others., Vs P.S.M.Ahamed Abdul Khader and
others. 2004(1) KCCR 662 between K.Gopalareddy
(deceased) by LRs Vs. Suryanarayana and others.,
and 1996(6) SCC page 223 between Sawarni(Smt.)
Vs. Inder kour(Smt.) and others., 1989(3) SCC 612
between Corporation of the City of Bangalore Vs.
M.Papaiah and another and argued that the suit of
plaintiff seeking declaration of title on the basis of
revenue entries is not maintainable. It was argued that
31 O.S.No.146/2004
plaintiffs are not at all in possession of suit property as
described in the plaint and therefore if the decree of
permanent injunction as prayed is granted much
injustice will cause to the defendants. It is also argued
that weakness in the case of defendants is not a
ground to decree the suit of the plaintiffs. The plaintiffs
have not produced cogent material to show that they
are the owners of the suit schedule property therefore
prayed to dismiss the suit.
29. I have perused the pleadings both oral and
documentary evidence and the principles laid down in
the decision relied by the Learned Counsels appearing
for the parties. In the decision cited by the Learned
Counsel for plaintiff, it is held that suit for declaration of
title and consequential rectification of entries in the
record of rights is maintainable and it is one of the
remedies provided under the Karnataka Land Revenue
Act 1964. It is also held that entries in the revenue
record ought, generally, to be accepted at their face
32 O.S.No.146/2004
value and Courts should not embark upon an appellate
enquiry into their correctness. But the presumption of
correctness can apply only to genuine, not forged or
fraudulent entries. The entries made pursuant to an
order and long standing entries in revenue records
gives rise to presumption as to their validity.
30. In the decisions cited by the Learned
Counsel for defendant No.3a and 3b it is held that in a
suit for declaration of title and permanent injunction
burden lies on the plaintiff and any weakness of the
defendant is not a ground to grant relief solely based
on mutation and other revenue entries. It is held that in
a suit for declaration of title, unless the plaintiff
produces the document of title, the civil Court cannot
grant declaration on the basis of the record of rights,
tax paid receipts or some communication or letters. A
revenue record is not a document of title. Therefore,
the mutation entries and the records evidencing the
same are not documents of title. If the mutation entry
33 O.S.No.146/2004
is made in accordance with law there is a presumption
in favour of the person in whose name the mutation
entry stands to the effect that he is in possession of the
said property. That by itself is not sufficient to hold that
he is the owner of the property. It is not proof of title.
Therefore, the civil courts cannot declare title in a
person on the basis of entries in the revenue records.
31. In the above decisions it is also held that
unless the Court is satisfied with regard to material
details in the light of the material evidence with regard
to identification of the property, no declaration and
injunction can be granted. It is observed that grant of
injunction is serious in nature. It affects the rights of
the parties; therefore, the Court must be very careful in
evaluating the pleadings and evidence in the matter of
injunction.
32. In this case, the plaintiffs are claiming
declaration of title as well as the relief of permanent
34 O.S.No.146/2004
injunction for the land measuring 1 gunta in survey
No.6/11 and 3 guntas in survey No.6/12. It is true that
the documents produced by defendant No.3a and 3b
and defendants No.8,shows that they are claiming
ownership and possession over the land in survey
No.6/7 and 6/14 and they were not able to tell the exact
measurement and boundaries of their respective
properties. It is also true that except title deeds, they
have not produced any cogent material to show that
they are in actual possession and enjoyment of extent
of properties in survey No.6/7, 6/14 or to show that
their properties are within the boundaries mentioned in
the plaint schedule. However, since the plaintiffs have
approached the Court seeking relief of declaration and
permanent injunction, the absolute burden is on them
to prove their title and possession over the suit
property.
33. As held in the above decisions in a suit for
declaration of title and injunction the plaintiffs have to
35 O.S.No.146/2004
prove not only title but must establish the identity of the
property. It is clearly held that whenever a party
approaches the Court for a relief based on the
pleadings and issues, he has to prove his case. A suit
has to be decided based on merits and de-merits of the
party who approaches the Court and weakness of the
defendant cannot be considered as a trump card for
the plaintiff. Hence, in order to claim the relief of
declaration and permanent injunction, the plaintiff must
establish his title and possession over the suit property
as described in the plaint. As rightly argued by the
Learned Counsel for plaintiffs the entries in the
revenue records ought to be accepted at their face
value as defendants have not placed any material to
show that the entries made in the name of plaintiff's
father are fraudulent and therefore, the Court can
extend the presumption as to the validity of entries in
the name of plaintiff's father. But in order to get remedy
36 O.S.No.146/2004
the plaintiff must show that the property over which he
is calcimining title and possession exits.
34. It is observed in the decision cited by the
Learned Counsel for plaintiffs that if there are
continuous entries depicting ownership of the
predecessors of the plaintiffs, they can claim ownership
over such property on the basis of continuous
possession and entries in the name of their ancestors.
In this case, the plaintiffs have described suit property
by giving survey numbers and boundaries and
therefore, there cannot be any difficulty to pass order of
declaration and permanent injunction. However, in
order to claim relief of declaration and permanent
injunction the plaintiffs not only describe the suit
schedule properties with survey number and
boundaries, but must also show that there is flow of
title in them by way of continuous entries in the name
of their ancestors and in their name, for sufficient
period of time by paying tax for several years. In this
37 O.S.No.146/2004
case except RTC extracts in the name of their father,
plaintiffs have not produced any documents to show
that they are enjoining the property for several years by
paying tax.
35. Admittedly, suit properties are agricultural
lands. Therefore, existence and identification of
property before grant of any relief is must. As admitted
by Pw.1 suit properties have lost the nature of
agricultural land and there are coconut trees and house
buildings around the suit property. Defendants claim
that the buildings constructed by them and trees grown
are within the boundaries mentioned in the plaint.
When the existence and identification of suit properties
are seriously in dispute, it is incumbent upon the
plaintiffs to prove the same by placing satisfactory and
cogent evidence.
38 O.S.No.146/2004
36. Ex.P1 produced by the plaintiffs ie.,
tippani copy shows that survey No.6 of
Devarabeesanahalli is divided into 15 parts and survey
No.6/12 and 6/11 are situated on the Southern side
and bifurcated by a road. Exs.P2 to P6 and P10 to 28
RTC extracts shows that the name of one Chinnappa
and Muniyappa ie., the father of plaintiffs No.1 to 4 and
5 to 7 are appearing in the RTC pertaining to
Sy.No.6/11 and 6/12 from the year 1998-1999 to 2008-
2009. But as noted above except these RTC extracts
and tippani extract, the plaintiffs have not produced any
material to show that they are in actual possession and
enjoyment of suit property as owners. The plaintiffs
have not produced any tax paid receipts and other
documents of title to show that they are in possession
and enjoying the suit properties as owners. The
plaintiffs have not applied for change of khatha in their
favour and as admitted by them they are also not
paying any tax in respect of suit properties. No doubt,
39 O.S.No.146/2004
the documents placed by the defendant No.3a and
defendant No.8 shows that they are owning land in
survey No.6 in different parts and they have also not
placed any sufficient material to identify their property
in survey No.6. But, it is the absolute burden of the
plaintiffs to prove their actual possession over the suit
properties. Though, in Exs.D30 and 31 photos there
appears a vacant land and Dw.2 during his cross-
examination admitted that it is a suit property but said
photos should tally with the description of the property
in the plaint. Plaintiff states that survey No.6/11 and
6/12 are adjacent to each other and they have left 12'
road in between these two properties. But, except their
oral say there is nothing on record to show that such
kind of property is in existence.
37. The case of the plaintiff that they are in
possession and enjoyment of suit schedule property as
described in the plaint cannot be accepted for the
40 O.S.No.146/2004
another reason that during the pendency of the suit
and after closer of their evidence,they have filed
application in I.A.No.13 U/o.6 rule 17 seeking
permission to amend the plaint schedule of item No.2
property in order to change the boundaries. In the
affidavit filed in support of this application the plaintiff
No.2 has stated that they have furnished incomplete
boundaries in the plaint schedule in respect of item
No.2 property. It is relevant to note here that this Court
rejected said application by holding that the plaintiffs
have not placed any material to show that inspite of
their due diligence they could not raise this matter
before commencement of trail. As pointed out by the
Learned counsels for defendants the plaintiffs have
not challenged said order and proceeded with
incomplete boundaries in the schedule to the plaint.
Under these circumstances, looking to the principles
laid down in the above decisions and the facts and
circumstances, I am of the opinion that the plaintiffs
41 O.S.No.146/2004
have failed to place cogent and sufficient material to
show that they are owners and in joint possession of
suit properties as claimed. In the result, I answer
issues No.1 and 2 in the negative.
38. Issue No.4:- Issue No.4 is framed by the
Court as to whether suit of the plaintiff is suffering from
non-joinder of necessary and proper parties.
39. In this case, the defendant No.8 in para 10 of
his written statement has taken a specific contention
that the suit is bad for non-joinder of necessary and
proper parties, as all the children of Chanchareddy
through whom the plaintiffs are claiming title have not
been made as parties. As noted above, Pw.1 during
his cross-examination has admitted that Chinchareddy
had one daughter by name Smt.Akkayyamma and he
has a sister and there is no division of family properties
between them. He has also admitted that his uncle
Muniyappa has left behind him 4 sons and two
daughters and they have also not impleaded the son of
42 O.S.No.146/2004
plaintiff No.8 as party to this suit. Admittedly, the
above suit is filed by the plaintiffs not only for
permanent injunction but for declaration of title to the
properties which they are claiming as their ancestral
property.
40. On perusal of cause title of the plaint and
evidence of Pw.1, it is clear that they have not
impleaded the daughter of late Chinchareddy and the
daughters of Chinnappa and Muniyappa in whose
name the records of rights are mutated. In spite of
contention raised by the defendants, the plaintiffs have
not impleaded the above daughters and son of one
Vijayan as parties to this suit and therefore, suit of the
plaintiff is suffering from non-joinder of necessary and
proper parties. Therefore, I answer this issue in the
affirmative.
41. Addl. Issue No.1:- Additional issue No.1
is framed regarding valuation of Court Fee paid by the
43 O.S.No.146/2004
plaintiff on the plaint. The defendants in their written
statement have contended that the valuation made and
Court fee paid by the plaintiffs is in correct. However,
except taking this contention in their written statement
none of the defendants have placed any evidence
either oral or documentary to show that the valuation
made and Court Fee paid by the plaintiffs is incorrect.
42. On perusal of the plaint averments and
valuation slip filed by the plaintiffs, it is seen that the
plaintiffs have valued and paid Court fee U/s.24(B) of
Karnataka Court Fees and Suit Valuation Act. They
have calculated court fee U/s.7(a) of the Act as the suit
schedule properties are agricultural properties and
have paid court fee on the basis of revenue
assessment. Looking to the nature of suit and nature
of suit schedule properties I accept the valuation slip
and held that defendants have failed to establish that
the suit is undervalued and the Court fee paid is
44 O.S.No.146/2004
incorrect. In the result, I answer additional issue No.1
in the affirmative.
43. Addl. Issue No.2:- Additional issue No.2 is
framed regarding limitation. The defendants in their
written statement have also contended that the suit of
the plaintiff is barred by limitation. However, as noted
above, except taking this contention in their written
statement, they have not placed any oral or
documentary evidence to show that the suit of the
plaintiffs is barred by limitation. On perusal of plaint
avverments and material on record, it is seen that
according to the plaintiffs on 1.11.2003 defendants
came near to the suit schedule properties and tried to
put up construction over the suit property. The
defendants have not denied that defendant No.8 tried
to construct building in the suit property on the alleged
date. Under these circumstances, looking to the cause
of action pleaded in the plaint, I am of the view that the
45 O.S.No.146/2004
suit of the plaintiff is within the period of limitation.
Hence, I answer addl. Issue No.2 also in the negative.
44. Addl. Issue No.3:- Additional issue No.3 is
framed casting burden on the defendants No.12 and 13
to prove their title and possession over the suit
property as alleged in para - 7 of their written
statement.
45. In para - 7 of their written statement,
defendants No.12 and 13 have contended that the suit
schedule properties are the ancestral properties of
these defendants and they are in lawful possession
and enjoyment of suit properties from time immemorial.
46. In support of their written statement
contentions on the side of these defendants, though
defendant No.12 appeared and examined himself as
Dw.3 but except his oral testimony he has not placed
any documents to support his claim over the suit
properties. Under these circumstances, it cannot be
46 O.S.No.146/2004
said that the defendants No.12 and 13 are the absolute
owners and in possession of suit properties as
contended by them. Therefore, I answer additional
issue No.3 in the negative.
47. Issue No.3:- The plaintiffs are claiming the
relief of declaration of title and permanent injunction
against the defendants. In view of my detail
discussion and findings on above issues No.1 and 2
plaintiffs have failed to prove their title to the suit
properties or actual possession and enjoyment of suit
properties by them. Therefore, they are not entitled for
any relief of declaration or injunction. Hence, I answer
issue No.3 in the negative.
48. Issue No.5:- In view of my discussions and
findings on the above issues, I proceed to pass the
following:
ORDER
The suit of the plaintiffs is dismissed.
47 O.S.No.146/2004There is no order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer through computer, and print out taken by her, revised, corrected and then pronounced by me in open Court today the 23rd day of September 2017).
(Saraswati.V.Kosandar) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY.
/ANNEXURE/ Witnesses examined on behalf of Plaintiff/s:
PW-1 : Dasharatha Reddy Witness examined on behalf of Defendants:
Dw.1 Ramaswamy Redy Dw.2 D.R.Srinivasa Reddy Dw.3 Muni Reddy
Documents marked on behalf of Plaintiffs:
Ex.P1 : Atlas sketch Exs.P2 to 6 : RTC extracts Ex.P7 and 8 : Photographs
Ex.P7 (a) & 8(a) : Negatives 48 O.S.No.146/2004 Ex.P9 : The receipt issued by photo studio Exs.P10 to P25 : RTC extracts Ex.P26 : Form No.16 Ex.P27 : Sketch issued by ADLR for suit property Exs.P28 to 30 : Certified copies of Hissa tippany Ex.P31 : Photo copy of the complaint Documents marked on behalf of Defendants:
Ex.D1 Will dated:3.3.1987 Exs.D2 To D5 Copies of tax paid receipts Ex.D6 Tax paid receipt Exs.D7 To D10 4 RTC extracts Exs.D11 & 12 Two tax demand register extracts Ex.D13 Certified copy of sale deed dated:29.6.1946 Ex.D14 Certified copy of sale deed dated:14.7.1927 Ex.D15 Certified copy of sale deed dated:
26.4.1926 Ex.D16 Certified copy of partition deed dated:9.12.1967 Ex.D17 Registered partition deed dated:28.5.2007 Ex.D18 Certified copy of sale deed dated:14.7.1922 Ex.D19 Certified copy of partition deed dated:24.4.2004 Ex.D20 Rectification partition deed dated:3.8.2005 Ex.D21 Sundaram Borewells bill dated:18.8.2001 Exs.D22 To D24 Water Bills Exs.D25 To D29 Rent agreements 49 O.S.No.146/2004 Exs.D30 & D31 2 photographs Ex.D32 C.D. VII.ADDL.CITY CIVIL JUDGE (CCH.No.19) BANGALORE.50 O.S.No.146/2004
23.09.2017 P - V.L. D1,5,9 - Absent D2,6,7,10, 11 - H.T.K. D3(a)(b) - N.N. D12, 13 - C.N.S. D8 - J.N. (Judgment pronounced in the open Court vide separate) The suit of the plaintiffs is dismissed.
There is no order as to costs.
Draw decree accordingly.
(Saraswati.V.Kosandar) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY 51 O.S.No.146/2004