Bangalore District Court
Smt.Shanta Kumari vs Sri.Ramakrishna Dutta Trust on 22 March, 2018
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. G.A. MULIMANI.,M.A. LL.B. (Spl.)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 22ND day of March, 2018
O.S.No.8050/2008
Plaintiffs : 1. Smt.Shanta Kumari,
W/o late Dr.D.E.Krishna Murthy,
aged about 62 years,
2. Sri.Lakshminarayana,
S/o Dr.D.E.Krishnamurthy,
Aged about 41 years,
3. Sri.Ravishankar,
S/o Dr.D.E.Krishnamurthy,
Aged about 42 years,
4. Smt.Madhavi,
D/o Late Dr.D.E.Krishnamurthy,
5. Smt.Eshwari,
D/o late Dr.D.E.Krishnamurthy
Aged about 38 years,
All residents of No.69,
BTM Layout II stage,
Ist phase, I cross,
3rd main Opp: Sri.Ganesha Temple,
Dollars Layout,
N.S.Palya, Bannerghatta Road,
Bangalore-560 075.
(By Sri.M.N.Seshagiri,
Advocate)
2 O.S.8050/2008
- Vs -
Defendant : Sri.Ramakrishna Dutta Trust,
No.11, in Sy.No.284,
Siddapura village,
Kasaba Hobli,
Bangalore North Taluk,
R/by its Managing Trustee,
a) Sri.Ramakrishna Dutt,
S/o Late Sri.P.S.Radhakrishna setty,
Aged about 38 years,
R/at No.2, Govindappa Gardens,
5th cross, 1st block, Jayanagar,
Bangalore-560 011.
(By Sri.S.B., Advocate)
Date of institution
of the suit : 20.11.2008
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Declaration, possession
and for future damages
Date of the commencement
of recording of the evidence: 22.09.2010
Date on which the
Judgment was pronounced : 22.03.2018
Year/s Month/s Day/s
Total Duration 09 04 02
3 O.S.8050/2008
JUDGMENT
This suit is filed by the plaintiffs against the defendant trust for the relief of declaration, possession, mesne profits and other reliefs.
2. The brief facts of the plaintiffs case are that, the husband of the 1st plaintiff and father of other plaintiff Dr.D.E.Krishna Murthy had purchased suit schedule property from its previous owner under the registered sale deed dated: 14.11.1968 and from the date of purchase Dr.D.E.Krishna Murthy was put in possession of the suit schedule property and continued to be in possession. Thereafter, the present defendant was filed O.S.No.7478/1995 through the then managing trustee late Sri.P.S.Radhakrishna Setty, against Dr.D.E.Krishnamurthy for the relief of declaration and injunction. The said P.S.Radhakrishna Setty, was the brother in law of late Dr.D.E.Krishna Murthy. According to late P.S.Radhakrishna Setty, a registered Trust dated: 01.08.1976 was formed on 01.08.1076 by him and his wife Smt. P.R.Sundaralakshmamma under the name and style "Sri.Ramakrishna Dutta Trust" and its office was located in site No.12, 1st block, Jayanagar, Bangalore-560 011 and the site No.12 is adjoining the plaint schedule property and forms northern boundary 4 O.S.8050/2008
3. Further contended that on an allegation that the defendant trust represented by its Managing Trustee Sri.P.S.Radhakrishna Setty had entered into an oral agreement of sale with Dr.D.E.Krishnamurthy during the year 1978, and had paid a sum of Rs.11,000/- as the sale consideration on three different dates, the last installment of Rs.5,000/- being paid on 5.8.1984 and the trust was put in possession of the suit schedule property, Sri.Rmaakrishna Dutta Trust, filed suit against Dr.D.E.Krishna Murthy in O.S.7478/1995. The said suit was filed on 9.11.1995 wherein the trust also alternately took up a contention in the said suit that it had perfected its title by adverse possession. In the suit Dr.D.E.krishnamurthy had filed his written statement denying the oral agreement of sale and also receipt of sale consideration and contended that he is in possession of the suit property ever since from 14.11.1968, the date of sale in his favour. He has also contended that schedule property is in exclusive possession of defendant in that suit. During the pendency of the said suit Managing Trustee Sri.P.S.Radhakrishna Setty died on 8.11.1996. His wife Smt.Sundaralakshmamma made an application to come on record as successor to her husband, which was not entertained by court. Later on his son Sri.Ramakrishna Dutt was brought on record as Managing Trustee of the 5 O.S.8050/2008 plaintiff Trust in that suit after lapse of nearly 8 years of the death of P.S.Radhakrishna Setty. Dr.D.E.Krishnamurthy, the defendant in the suit also died on 5.7.2007 during the pendency of O.S.7478/1995 and his wife and children's who are plaintiffs were brought on record as his legal representatives. After contest the suit was partly decreed restraining the defendants (plaintiffs in this case) from interfering with the plaintiffs (defendant in this case) possession of the suit property till he evicted in due process of law, the claim of the plaintiff in the said suit that it is the owner of the property by adverse possession was not accepted. The parties to the O.S.7478/1995 adduced respective evidence and arguments and the portion of the evidence and observation made in the judgment is narrated in this plaint which is not relevant to incorporate once again.
4. Further has contended that no possession was given to the defendant trust at any point of time, through out when the previous proceedings was pending, it is the plaintiffs father Dr.Krishna Murthy, who was in physical possession till his death, and after his death his legal representative who are the plaintiffs in this suit continued in possession till the date of judgment in the previous suit, that is 19.9.2008. Merely on the averments made in the plaint in O.S.7478/1995 that the trust had put up the 6 O.S.8050/2008 building over the suit schedule property and the defendant has not stated anything about the existence of structure in the written statement, the previous suit was decreed holing that the trust has been in possession of the suit property since 1984, alleged though no material or proof had been produced in evidence to prove that it has put up any structure on the suit property and the existence of oral agreement of negatived, in that suit, it can be said that the trust was put in possession of the suit property during the year 1984, when the last alleged payment was made. In fact no documents have been produced by the Trust to prove that any payment was made as alleged in the plaint in that suit and the alleged plaintiff trust was formed in the year 1976, the defendant was a boy of about 7 or 8 years and he could not have any personal knowledge about the suit property. By way of compulsion, the plaintiffs who are the legal heirs of the deceased Dr.D.E.Krishna Murthy have filed this suit against the defendant trust, for declaration of title and for possession of suit schedule property, as they are restrained by permanent injunction not to interfere with the defendants possession of the suit schedule property till it is evidence by due course of law, the defendant trust is in possession of the suit property, it cannot be said to be in lawful possession, even according to the judgment in the previous suit, the defendant has not perfected its title by 7 O.S.8050/2008 adverse possession. In such an event, the plaintiffs are entitled to get back the possession from the defendant, who is in unauthorized possession, hence is liable to pay the damages at least a sum of Rs.10,000/- per month to the plaintiff for his illegal occupation. Hence they prayed for decree the suit.
5. In pursuance of suit summons the defendant appeared and filed written statement denying all the allegations leveled against them as false by admitting the paragraph No.3, 4, 14 of the plaint, and suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed in limine. Further has contended that defendant is registered trust formed in the year 1976, it was established by Mr.P.S.Radhakrishna Setty and his wife Smt.Sunderalakshmamma, the object being mainly to establish charitable institutions, such as free educational institutions, hostels, hospitals etc, to the deserving poor, irrespective of caste creed or community, the deceased Dr.D.E.Krishna Murthy, the husband of the 1st plaintiff and the father of the 2nd to 5th plaintiffs, are the absolute owner of the property bearing No.11, formed in Sy.No.No.284 of Siddapura village measuring east to west on the northern side 48 feet and on the southern side 47.5 feet and north to south 40 feet vide registered sale deed dated 14.11.1968. the said layout comprising of residential sites was formed in 8 O.S.8050/2008 Sy.No.No.28/4. the defendant had purchased site Nos, 5, 8, 9, 10 and 12 and the suit schedule property site No.11 was in between site No.10 and site No.12. the deceased Dr.D.E.Krishnamurthy orally agreed to sell the property in favour of the defendant in the year 1978 and in lieu of the agreement the appellant was put in possession of the aforesaid property.
6. Further has contended that from 1978 the defendant has been in continuous enjoyment of the aforesaid property. The defendant constructed a building for the purpose of yoga class, prayers and got installed electricity and water supply to the building. It was installed by the defendant trust in the year 1979 and 1991. however the authorities endorsed the installation in the name of founder trustee Mr.Radhakrishna Setty and not in the name of the trust. It was in the year 1995 the deceased Dr.D.E.Krishna Murthy started interfering with the possession of the defendant and the defendant was constrained to file a suit in O.S.7478/1995 before the 5th Additional. City Civil Judge, Bengaluru for declaration that the trust is the absolute owner of the aforesaid property and for permanent injunction restraining Dr.D.E.Krishnamurthy from interfering with peaceful possession and enjoyment of the aforesaid property and 9 O.S.8050/2008 consequential relief. Mr.P.Radhakrishna Setty passed away on 8.11.1996. thereafter a resolution was passed taking his son Sri.Ramakrishna Dutt was Trustee and also appointed him as Managing Trustee. During course of proceedings in O.S.7478/1995 Dr.D.E.Krishna Murthy passed away on 7.05.2007 and his legal representatives, the plaintiffs were brought on record.
7. Further has contended that, on 19.09.2008 the court below was pleased to partly decree the suit restraining the plaintiffs from interfering with the defendants possession of the suit property till evicted by due process of law. The suit of the appellant for the relief of declaration in respect of the suit property came to be dismissed. Aggrieved by the judgment and decree dated 19.09.2008 in O.S.No.7478/1995 the appellants have preferred a Regular Appeal 403/2009 before Hon'ble High Court of Karnataka. The appeal is pending adjudication. The plaintiffs have also preferred an appeal RFA 109/2007 before this court being aggrieved by the judgment and decree dated 19.09.2008 in O.S.No.7478/1995 and hence this defendant trust is the absolute owner of suit property by way of adverse possession. The plaintiffs are not entitled any reliefs. Hence, prayed for dismiss the suit.
10 O.S.8050/20088. On the basis of the above pleadings, materials and documents, my predecessor in office has framed the following issues:
ISSUES
1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property?
2. Whether the plaintiffs prove that they are entitle for possession of the suit property?
3. Whether the plaintiffs prove that they are entitle for future mesne profits as prayed?
4. Whether the defendants prove that they have perfected their title by adverse possession?
5. Whether the court fee paid is proper?
6. What order or decree?
9. In order to prove the case of the plaintiffs, the plaintiff No.2 is examined as P.W.1 and got marked documents Ex.P1 to 15 and close his side. On the other hand the managing trust of the defendant is examined as D.W.1 and got marked documents Ex.D1 to 46 and closed his side.
9. Heard the arguments of both the sides and the learned counsel for the plaintiffs has relied the following decisions;
1. 2008 AIR (Kant) 157 11 O.S.8050/2008
2. 2013-1-KCR-207
3. 2013-ILR-4357-KAR]
4. 2015-ILR-2335-KAR
5. 2014-1-KLJ-532
6. 2008-AIR (SCC)-5682
7. 2008-AIR (SC)-2212
8. 2008-AIR(SC)-346
9. 2016 AIR (SCW)2250
10. My answers on the above issues are as follows :
Issue No.1 : Answer Accordingly, Issue No.2 : In the negative, Issue No.3 : In the negative, Issue No.4 : In the negative, Issue No.5 : In the negative, Issue No.6 : As per final order for the following:
REASONS
11. ISSUE No.1 TO 5: These issues are interlinked, hence, to avoid the repetition of the same facts, I have discussed these issues simultaneously for my common consideration.
12 O.S.8050/200812. It is the case of the plaintiffs is that, the husband of the 1st plaintiff and father of other plaintiff Dr.D.E.Krishna Murthy had purchased suit schedule property from its previous owner under the registered sale deed dated: 14.11.1968 and from the date of purchase Dr.D.E.Krishna Murthy was put in possession of the suit schedule property and continued to be in possession. Thereafter, the present defendant was filed O.S.No.7478/1995 through the then managing trustee late Sri.P.S.Radhakrishna Setty, against Dr.D.E.Krishnamurthy for the relief of declaration and injunction. The said P.S.Radhakrishna Setty, was the brother in law of late Dr.D.E.Krishna Murthy. According to late P.S.Radhakrishna Setty, a registered Trust dated: 01.08.1976 was formed on 01.08.1076 by him and his wife Smt. P.R.Sundaralakshmamma under the name and style "Sri.Ramakrishna Dutta Trust" and its office was located in site No.12, 1st block, Jayanagar, Bangalore-560 011 and the site No.12 is adjoining the plaint schedule property and forms northern boundary.
13. Further it is the case of the plaintiff is that, on an allegation that the defendant trust represented by its Managing Trustee Sri.P.S.Radhakrishna Setty had entered into an oral agreement of sale with Dr.D.E.Krishnamurthy 13 O.S.8050/2008 during the year 1978, and had paid a sum of Rs.11,000/- as the sale consideration on three different dates, the last installment of Rs.5,000/- being paid on 5.8.1984 and the trust was put in possession of the suit schedule property, Sri.Rmaakrishna Dutta Trust, filed suit against Dr.D.E.Krishna Murthy in O.S.7478/1995. The said suit was filed on 9.11.1995 wherein the trust also alternately took up a contention in the said suit that it had perfected its title by adverse possession. In the suit Dr.D.E.krishnamurthy had filed his written statement denying the oral agreement of sale and also receipt of sale consideration and contended that he is in possession of the suit property ever since from 14.11.1968, the date of sale in his favour. He has also contended that schedule property is in exclusive possession of defendant in that suit. During the pendency of the said suit Managing Trustee Sri.P.S.Radhakrishna Setty died on 8.11.1996. His wife Smt.Sundaralakshmamma made an application to come on record as successor to her husband, which was not entertained by court. Later on his son Sri.Ramakrishna Dutt was brought on record as Managing Trustee of the plaintiff Trust in that suit after lapse of nearly 8 years of the death of P.S.Radhakrishna Setty. Dr.D.E.Krishnamurthy, the defendant in the suit also died on 5.7.2007 during the pendency of O.S.7478/1995 and his wife and children's who 14 O.S.8050/2008 are plaintiffs were brought on record as his legal representatives. After contest the suit was partly decreed restraining the defendants (plaintiffs in this case) from interfering with the plaintiffs (defendant in this case) possession of the suit property till he evicted in due process of law, the claim of the plaintiff in the said suit that it is the owner of the property by adverse possession was not accepted. The parties to the O.S.7478/1995 adduced respective evidence and arguments and the portion of the evidence and observation made in the judgment is narrated in this plaint which is not relevant to incorporate once again.
14. It is further case of the plaintiff that no possession was given to the defendant trust at any point of time, through out when the previous proceedings was pending, it is the plaintiffs father Dr.Krishna Murthy, who was in physical possession till his death, and after his death his legal representative who are the plaintiffs in this suit continued in possession till the date of judgment in the previous suit, that is 19.9.2008. Merely on the averments made in the plaint in O.S.7478/1995 that the trust had put up the building over the suit schedule property and the defendant has not stated anything about the existence of structure in the written statement, the previous suit was decreed holing that the trust has been in possession of the 15 O.S.8050/2008 suit property since 1984, alleged though no material or proof had been produced in evidence to prove that it has put up any structure on the suit property and the existence of oral agreement of negatived, in that suit, it can be said that the trust was put in possession of the suit property during the year 1984, when the last alleged payment was made. In fact no documents have been produced by the Trust to prove that any payment was made as alleged in the plaint in that suit and the alleged plaintiff trust was formed in the year 1976, the defendant was a boy of about 7 or 8 years and he could not have any personal knowledge about the suit property. By way of compulsion, the plaintiffs who are the legal heirs of the deceased Dr.D.E.Krishna Murthy have filed this suit against the defendant trust, for declaration of title and for possession of suit schedule property, as they are restrained by permanent injunction not to interfere with the defendants possession of the suit schedule property till it is evidence by due course of law, the defendant trust is in possession of the suit property, it cannot be said to be in lawful possession, even according to the judgment in the previous suit, the defendant has not perfected its title by adverse possession.
15. It is specific case of the defendants is that, that, he has admitted the paragraph No.3, 4, 14 of the plaint, 16 O.S.8050/2008 and suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed in limine. Further has contended that defendant is registered trust formed in the year 1976, it was established by Mr.P.S.Radhakrishna Setty and his wife Smt.Sunderalakshmamma, the object being mainly to establish charitable institutions, such as free educational institutions, hostels, hospitals etc, to the deserving poor, irrespective of caste creed or community, the deceased Dr.D.E.Krishna Murthy, the husband of the 1st plaintiff and the father of the 2nd to 5th plaintiffs, are the absolute owner of the property bearing No.11, formed in Sy.No.No.284 of Siddapura village measuring east to west on the northern side 48 feet and on the southern side 47.5 feet and north to south 40 feet vide registered sale deed dated 14.11.1968. The said layout comprising of residential sites was formed in Sy.No.No.28/4. the defendant had purchased site Nos, 5, 8, 9, 10 and 12 and the suit schedule property site No.11 was in between site No.10 and site No.12. The deceased Dr.D.E.Krishnamurthy orally agreed to sell the property in favour of the defendant in the year 1978 and in lieu of the agreement the appellant was put in possession of the aforesaid property.
16. It is the further case of the defendant that, from 1978 the defendant has been in continuous enjoyment of 17 O.S.8050/2008 the aforesaid property. The defendant constructed a building for the purpose of yoga class, prayers and got installed electricity and water supply to the building. It was installed by the defendant trust in the year 1979 and 1991. However the authorities endorsed the installation in the name of founder trustee Mr.Radhakrishna Setty and not in the name of the trust. It was in the year 1995 the deceased Dr.D.E.Krishna Murthy started interfering with the possession of the defendant and the defendant was constrained to file a suit in O.S.7478/1995 before the 5th Additional. City Civil Judge, Bengaluru for declaration that the trust is the absolute owner of the aforesaid property and for permanent injunction restraining Dr.D.E.Krishnamurthy from interfering with peaceful possession and enjoyment of the aforesaid property and consequential relief. Mr.P.Radhakrishna Setty passed away on 8.11.1996. thereafter a resolution was passed taking his son Sri.Ramakrishna Dutt was Trustee and also appointed him as Managing Trustee. During course of proceedings in O.S.7478/1995 Dr.D.E.Krishna Murthy passed away on 7.05.2007 and his legal representatives, the plaintiffs were brought on record.
17. It is further case of the defendant is that, on 19.09.2008 the court below was pleased to partly decree 18 O.S.8050/2008 the suit restraining the plaintiffs from interfering with the defendants possession of the suit property till evicted by due process of law. The suit of the appellant for the relief of declaration in respect of the suit property came to be dismissed. Aggrieved by the judgment and decree dated 19.09.2008 in O.S.No.7478/1995 the appellants have preferred a Regular Appeal 403/2009 before Hon'ble High Court of Karnataka. The appeal is pending adjudication. The plaintiffs have also preferred an appeal RFA 109/2007 before this court being aggrieved by the judgment and decree dated 19.09.2008 in O.S.No.7478/1995 and hence this defendant trust is the absolute owner of suit property by way of adverse possession.
18. In order to prove the case of the plaintiff, the plaintiff No.2 has filed his sworn affidavit in lieu of chief examination as P.W.1, wherein he has reiterate the same contents which he has narrated in the plaint, hence to avoid the repeation of same facts, I have not discussed once again. In support of his oral evidence has produced 15 documents as Ex.P1 to P15, for the sake of convenience I have summarized these documents as Ex.P.1 is the certified copy of judgment and decree in OS.7478/95, Ex.P2 is certified copy of decree, Ex.P3 is the sale deed, Ex.P4 is the certified copy of mutation, Ex.P5 is the certified copy of 19 O.S.8050/2008 layout plan, Ex.P6 is the E.C., Ex.P7 and 8 are two tax paid receipts, Ex.P9 is the copy of endorsement, Ex.P10 is the trust deed, Ex.P11 is the Hiduvali certificate, Ex.P12 to 14 are tax paid receipts, Ex.P15 is the will
19. On the other hand in order to prove the case of the defendant and disprove the case of plaintiff, the defendant trustee has filed his sworn affidavit in lieu of chief examination as D.W.1, wherein he has reiterate the same contents which he has narrated in the written statement, hence to avoid the repetition of same facts, I have not discussed once again. In support of his oral evidence has produced 46 documents as Ex.D1 to D46 for the sake of convenience I have summarized these documents, Ex.D.1 is the trust deed, Ex.D2 is the building plan, Ex.D3 to 9 are seven electricity bill, Ex.D10 to 13 electricity receipt, Ex.D14 to 20 are photographs, Ex.D21 to 23 are two RTCs, Ex.D24 to 32 are nine tax paid receipts, Ex.D32 to 38 are 6 electricity bills, Ex.D39 to 44 are six electricity receipts, Ex.D45 is trust resolution, Ex.D46 c/c copy of judgment in OS 7478/1995 20 O.S.8050/2008
20. During the cross examination of P.W.1 has stated that it is true that his father late Dr.D.E.Krishnamurthy purchased the suit property when it was a site. Sri.Radhakrishna Shetty was managing trustee of defendant trust was brother in-law of his father. It is true that defendant trust had filed suit in O.S.7478/1995 against his father for the relief of declaration and injunction. It is true that during the pendency of the suit his father died, his father executed unregistered will in favour of his mother. Further has stated that defendant is in possession of suit schedule property, it is true that in the decree bearing O.S.7478/95 it is held that defendant is in possession of sit schedule property, it is true that he challenged the said judgment in RFA.No109/2009 and defendant also filed appeal in RFA No.403/2009 challenging the said judgment and decree in O.S.7478/1995 and both RFAs are pending before the Hon'ble High Court of Karnataka. The managing trustee of the defendant trust Ramakrishna Dutta is his maternal uncle's son, the activities of the said defendant trust have been in the name of "Ramakrishna Dutta Trust"
At present i.e. from 2008 the defendant trust is only in the possession of the suit schedule property.21 O.S.8050/2008
21. Further, has stated that he was aware of Ex.P15 i.e. Will, which was executed in respect of self acquired properties of his father. The suit schedule property is not specifically included in Ex.P15. the witness to the will by name K.P.Kumar and Vinay are not related to him, it is false that his father not executed will and same has fabricated. It is true that defendant has been paid electricity bill, witness stated that this is because they have been granted possession by the court, and the defendants owns several other properties thereby put up common compound wall to all his property including the suit schedule property, witness stated that they have separate entrance to the suit property, and it is false that the defendant is in possession of the suit schedule property from 1978. It is false that he is not aware of the discretion of the suit schedule property. It is false that the defendant has constructed building in the suit schedule property for charitable purpose.
22. During the cross examination of D.W.1 has stated that the husband of first plaintiff is his maternal uncle, he is managing trustee of the defendant trust, there are two trustees including him, and trust registered in the year 1976. He was 8years old as on 1978, it is false that he has 22 O.S.8050/2008 no documents to show that he paid Rs.11,000/- as sale consideration of suit schedule property in the year 1978, to Dr.Krishnamurthy. It is false that he has no personal knowledge of the said transaction of 1978, as he was a minor, witness voluntarily states that he knows the said facts as his father was sharing with him in the family affairs. It is true that apart from the suit schedule property another 5 more sites are in the name of trust and another 3 sites are situated surrounding the suit schedule property in the name of his parents. The extent of all the sites are not similar, he cannot say the extent of all the sits, and all the sites purchased by his parents, it is false that all the sites are situated in the same row.
23. Further has stated that, it is true to suggest that the suit schedule property is stands in the name of Dr.Krishnamurthy from 1968 to till today. It is false that Dr.Krishnamurthy paid khata and kandaym as per Ex.P6, 7 and 8. it is true that the name of Shantakumari appeared in Ex.P12 to P14, it is false that he has no right over the suit schedule property. It is true that Ex.P2 is the certified copy of judgment in O.S.7478/1995. It is false that in the said judgment and decree held that Dr.Krishnamurthy is the owner of the suit property. He do not remember the exact date when his father was entered into oral agreement with 23 O.S.8050/2008 Dr.Krishnamurthy to the suit property. It is false that no oral agreement was entered between Dr.Krishnamurthy and his father and Krishnamurthy never agreed to sell the property. He do not know Krishnamurthy was a medical practicener at Hyderabad and intended to purchase site to settled here.
24. The learned counsel for the plaintiff has posed a question that the oral agreement was negativated in O.S.No.7478/95, witness answered it is matter of record, it is false that when the oral agreement was negativated the trust was no right over the suit schedule property. Ex.D3 to 13, 33 to 37 and 41 to 44 pertaining to property bearing No.12, witness voluntarily stated that it also pertains to property No.11, and it is not disclosed in Ex.D41 to 44 about property No.11, he has not filed specific performance of contract on the basis of alleged oral agreement of 1978, witness voluntarily stated that since the deceased Dr.Krishnamurthy was his maternal uncle.
25. Further has stated that plot No.13 stands in the name of his mother Sundarlakshmamma, now she is no more, and his wife Prachidutta are the trustee of the defendant trust, and defendant trust is a charitable trust, his mother and sisters were not the trustees to the 24 O.S.8050/2008 defendant trust now, the site No.5 and 6 are not belonging to him, he has to check the records whether the site No.5 and 6 earlier was belonging to him. He cannot say how many sites are belonged to him in the said row other than the site No.11. it is false that, Krishnamurthy paid up to date tax from 1968 till his death, thereafter the plaintiffs are paid the same till today in respect of the suit property. It is false that he has no right over the suit property. It is false that his possession if any is illegal possession over the suit property, he is liable to pay mesne profit, he do not know the approximate value of the suit property i.e. 3 to 3.5 crores as on today. It is false to say that his father was a money lender along with his profession as charted accountant.
26. These are all oral evidence placed before the court by the plaintiffs and defendants in order to prove the case of the plaintiff who has produced 15 exhibits more particularly Ex.P1 which is the certified copy of the O.S.7478/1995 wherein the present defendant was filed a suit against the present plaintiffs for the relief of declaration, declaring that he is the owner of the suit schedule property and also for permanent injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property 25 O.S.8050/2008 bearing No.11 formed in Sy.No.28/4 of Siddapura village measuring East to West on the northern side 48.5 ft on the southern side 4/5 feet and north-south 40 feet. Admittedly, the said suit was partly decreed on 19.9.2008 restraining the defendant from interfering with plaintiff' possession of the suit schedule property till he is evicted by due process of law. So far suit in respect of declaration of title is dismissed.
27. It is pertinent to note that, in the said judgment it was held in para -19 "that is not the case of the defendant subsequent to filing of the suit, the plaintiff tress pass into the suit property as per evidence placed before this court as on the date of the suit the plaintiff is in possession of the suit property, the possession of the plaintiff has to be protected until he is evicted by due process of law". Further, it is held in the said judgment paragraph 12 in page 10 that "Ex.P9 and 10 are for the years 1991-92-93. before that they were not found suit property in the name of plaintiff. The plaintiff has produced tax paid receipts as per Ex.P11 to P18 and Ex.P11 and 12 it is mentioned site No.11. In Ex.P11 there are two receipts, one dated 10.10.1995 and another dated 11.11.1976 and Ex.P12 is dated 10.10.1975. These three receipts are in respect of site No.11. as per the case of the plaintiffs it is clear that 26 O.S.8050/2008 the defendant agreed to sell the suit property in the oral agreement 1978.
28. The learned counsel for the plaintiff while arguing has raised the point that the suit schedule property was purchased by one Dr.D.E.Krishnamurthy was husband of the first plaintiff and father of the other plaintiffs through the sale deed, dated: 14.11.1968, from the date of purchase he was in possession of the suit schedule property, thereafter the defendant trust was filed a suit bearing O.S.7478/1995 wherein the suit came to be partly decree, and ordered that the defendant is in possession of the suit schedule property. Hence, his possession is to be protected and evict the defendant with due process of law. By virtue of the said judgment and decree in O.S.7478/1995 the plaintiffs have filed this suit against the defendant. Therefore the defendant is liable to vacate from the suit schedule property.
29. The learned counsel for the defendant vehemently argued that plaintiff and defendants are close relatives and the plaintiff was not residing at Karnataka at the relevant point of time, and the plaintiff purchased the suit schedule property on 14.11.1968 through the registered sale deed, and has executed oral agreement with the defendant trust 27 O.S.8050/2008 in the year 1978, and in performance of the said agreement the defendant was paid a part sale consideration of Rs.5000/- per month on 5.8.1974 and Rs.1,000/- on 1.8.1982 and Rs.5,0000/- on 20.11.1981 by way of installment towards total sale consideration of suit schedule property. The same was admitted by defendant in earlier suit, and further argued that the revenue documents are stands in the name of defendant since from the date of the oral agreement who is in possession of the suit schedule property, and as per the plan submitted at the time of inspection of electricity board officials while shifted the meter, which shows that there is separate entrance to the suit schedule property to the plaintiff, since the plaintiffs and defendants are close relatives , and the defendant is in possession of the suit schedule property with the knowledge of the plaintiff, the same is accepted by the plaintiffs in respect of the possession of the property by the defendant, and all the revenue records, electricity bills, photographs are clearly establishes that the defendant is in possession of the suit schedule property till today.
30. It is pertinent to note that, both the parties have admitted that O.S.7478/1995 filed by the defendant trust against the plaintiffs which came to be partly decreed. In the said judgment it was held that, defendant trust is in 28 O.S.8050/2008 possession of the suit schedule property. There is no dispute that Dr.D.E.Krishnamuthy had purchased the suit schedule property through the registered sale deed and also it is also admitted fact that the defendant trust is in possession of the suit schedule property from 1978 till today. The claim of the plaintiff is that by virtue of the judgment and decree passed in O.S.7478/1995 the defendant is in possession of the suit schedule property, and the plaintiff is at liberty to dispossess the defendant trust with due process of law.
31. Further it is held in the said judgment that the possession of the plaintiff is not unauthorised possession or illegal possession, as the defendant is not tress passed or illegally interfere in the suit schedule property after filing the suit and alleged the revenue documents as admitted by the defendant are stands in the name of the plaintiffs and the plaintiffs are in possession of the suit schedule property that he has construct the compound wall including his properties and there is no separate entrance to the defendant as claimed.
32. It is well settled proposition of law that the relief of declaration is a highly discretionary relief. Further it is well settled established of law that, when a persons sought 29 O.S.8050/2008 the relief of declaration has not suppressed the material facts. In this case the plaintiff has filed this suit against the defendant for the relief of declaration, declaring that the plaintiffs are the absolute owner of the suit schedule property and sought the relief of declaration, possession and other reliefs. As admitted by both parties in a suit bearing O.S.7478/1995 it was held in respect of the title and ownership of the property and more over already the matter was adjudicated on this point. Therefore, this court cannot give any other findings on the findings given in O.S.7478/1995.
33. Since the plaintiff has not whispered in his plaint at the time of filing of the suit or after filing of the suit, or he has not brought to the notice of this court, regarding filing of the RFA against the judgment and decree passed in O.S.7478/1995 either by him or by the defendant. The said fact was elicited from the mouth of P.W.1 during the cross examination conducted by the learned counsel for the defendant wherein P.W.1 has categorically admitted that, it is true that they have challenged the decree in appeal in RFA 109/2009, it is true that the defendant also preferred appeal in RFA 403/2009 challenging the judgment and decree passed in O.S.7478/1995. Further it is true both RFAs are pending consideration before Hon'ble High Court 30 O.S.8050/2008 of Karnataka. This fact was not brought to the notice of this court by the plaintiff, regarding the pendency of the said RFAs.
34. It is pertinent to note that plaintiff has filed the suit against the defendant for seeking relief of declaration and possession, and other reliefs, on the basis of the judgment and decree passed in O.S.7478/1995. Since the RFA No.109/2009 and 403/2009 were still pending before the Hon'ble High Court of Karnataka. Therefore, it cannot be said that, the claim of the defendant regarding oral agreement was negativated in judgment in O.S.7478/1995. Since both the parties were challenged the said judgment and decree passed in O.S.7478/1995, under different RFAs pending before the Hon'ble High Court of Karnataka, Bangalore and therefore findings given in O.S.7478/1995 are not yet reached finality, as said RFAs are pending before the Hon'ble High Court of Karnataka in the R.F.A. No.109/2009 and 403/2009.
35. When the said judgment and decree in OS.7478/1995 is pending before the Hon'ble High Court of Karnataka in RFA No.109/2009 and 403/2009, then it cannot be consider in this stage that, plaintiff are entitled to get the relief of possession of the suit schedule property.
31 O.S.8050/2008As the plaintiff is claiming the possession of the suit schedule property by virtue of judgment and decree in OS.7478/1995 which is still pending for adjudication, it means the judgment and decree in O.S.7478/1995 is yet not reached the finality. Therefore, I have carefully gone through the decisions reported in by the learned counsel for the plaintiffs i.e. 1. 2008 AIR (Kant) 157 2. 2013-1-KCR-
207. 3. 2013-ILR-4357-[KAR]. 4.2015-ILR-2335-KAR. 5. 2014-1-KLJ-532. 6. 2008-AIR (SCC)-5682. 7. 2008-AIR (SC)-2212. 8. 2008-AIR(SC)-346, 9. 2016 AIR (SCW)2250, since the facts and circumstances involved in this case, and the principles laid down in the supra decisions are different from each other, hence with due respect to the above said citations which are not applicable to the present case in hand. Therefore, in view of the pendency of the RFA No.109/2009 and 403/2009 before the Hon'ble High Court of Karnataka, Bengaluru, issue No.1 does not survive for consideration. And in view of detailed discussions and foregoing reasons I am of the opinion that the plaintiff is not entitled to the relief of possession of the suit schedule property, and also not entitled the relief of future mesne profits.
36. So far as adverse possession over the suit schedule property is concerned, the fact on issue was already discussed and findings given in the 32 O.S.8050/2008 O.S.No.7478/1995 and the defendant also not claimed any counter claim regarding adverse possession, as such the defendant has failed to establish that he will be perfected his title by way of adverse possession. So far as court fee is concerned the defendant has denied that the court fee paid by the plaintiff is not correct, but not pleaded how it is not correct. On the basis of the plaint averments and valuation slip, the plaintiff has paid the proper court fee. Hence, I answer issue No.1 accordingly, issue No.2 to 5 are in the negative.
37. Issue No.6:- In the result, I proceed to pass the following:
Order:
The suit of the plaintiffs is dismissed with cost.
Draw decree accordingly.
(Dictated to the judgment writer, transcribed and computerized by him, corrected and pronounced by me in the open court, on this 22nd day of March, 2018) (G.A.MULIMANI) XIV Addl. City Civil Judge Bangalore.33 O.S.8050/2008
ANNEXURE List of witnesses examined on behalf of plaintiffs:
P.W.1 : D.K.Lakshmi Narayana List of documents exhibited on behalf of plaintiffs:
Ex.P1 C/c of judgment and decree in OS.7478/95
Ex.P2 C/c of Decree
Ex.P3 C/c of sale deed, dated: 14.11.1968
Ex.P4 C/c of mutation register
Ex.P5 C/c of Layout plan
Ex.P6 C/c of E.C.
Ex.P7&8 Two Tax paid receipts
Ex.P9 C/c of Endorsement issued by Village
Accountant
Ex.P10 C/c of Trust Deed
Ex.P11 C/c of Hiduvali certificate
Ex.P12 to Three tax paid receipts.
14
Ex.P15 Will
List of witnesses examined on behalf of defendant:
D.W.1 : Ramakrishna Dutta List of documents exhibited on behalf of defendant:
Ex.D1 C/c of the trust deed, dated: 01.08.1976
Ex.D2 C/c of the building plan
Ex.D3 to 9 C/c of the seven electricity bill
34 O.S.8050/2008
Ex.D10 to 13 C/c of the electricity receipt 4 nos Ex.D14 to 20 C/c of the photographs (subject to objn) 7 in nos Ex.D21 to 23 C/c of two RTCs Ex.D24 to 32 C/c of the nine tax paid receipts Ex.D33 to 38 6 Electricity bills Ex.D39 to 44 Six Electricity receipts Ex.D45 C/c of the trust resolution Ex.D46 C/c of the judgment in OS 7478/1995 XIV ADDL.CITY CIVIL JUDGE BANGALORE