Bangalore District Court
Sri. T.N. Narayanan Unni S/O Late T. ... 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.
O.S No.17070/2004
Dated this the 22nd day of September 2021
Plaintiff 1. Sri. T.N. Narayanan Unni S/o late T. Narayan Kurup,
Aged about 57 years, R/o No.21, 2nd Cross,
Jayanthi Nagar, Horamavu Village,
K.R Puram Hobli, 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) 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.
2
Judgment O.S.No.17070/2004
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 19/11/2004
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Permanent Injunction
injunction, etc.)
Date of the commencement of recording
13/11/2006
of the Evidence.
Date on which the Judgment was
22/09/2021
pronounced.
Year/s Month/s Day/s
Total duration 16 10 03
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
:JUDGMENT:
The plaintiff filed suit against the defendants for permanent injunction.
3
Judgment O.S.No.17070/2004
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:-
:SUIT SCHEDULE PROPERTY:
All that piece and parcel of residential premises bearing Site No.21 formed in the Northern portion of land in Sy.No.81/2 of Horamavu Village in house list katha No.0122/2, K.R Puram Hobli, Bangalore South Taluk (presently Bangalore East Taluk) measuring East to West 30 feet, North to South 40 feet total area 1200 Sq.ft bounded by East: House No.20, West: House No.22, North: House No.10, South: Layout Road. The Plaintiff further submits that he has purchased schedule property from defendants No.1 to 3 on 20/02/1992 under registered sale deed. The 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 1990-91 defendants No.1 to 3 formed 4 Judgment O.S.No.17070/2004 layout of house sites in northern portion of their land in Sy.No.81/2 with total number of 47 sites and offered to sell to intending purchasers of the sites thus formed. The defendants No.1 to 3 also appointed defendant No.4 as Power of Attorney Holder to transact with the site purchasers. The plan of sites and road in the layout formed by defendants No.1 to 3 in northern portion of Sy.No.81/2 and it was furnished to the plaintiff and other intending purchasers by defendants No.1 to 3 and they got house list khatha numbers allotted to the sites formed in this layout by the Horamavu Village Panchayat. The schedule property in site No.21 was assigned with House list No.122/2. The said 47 sites was bounded by North: land in Sy.No.81/1 belongs to Yamanna, East: land in Sy.No.84 belongs to Baluki Dasappa, West: Jayanthi grama, hamlet of Horamavu Village, South : land (sold) belongs to defendant No.4 Padmavathi in the same Sy.No.81/2. The defendants No.1 to 3 did not retain any right or title over northern portion of the land in Sy.No.81/2 5 Judgment O.S.No.17070/2004 wherein the sites were formed. Thus since 1992 defendants No.1 to 3 ceased to be the owners of the land wherein the said layout was formed. The plaintiff submits that in the year 1996 he constructed residential building on the schedule site No.21 after obtaining the building licence from the Horamavu Village Panchayat authorities and ever since the plaintiff along with his family members is peaceful possession and enjoyment of the schedule property. He and many others had purchased sites as stated above from defendants No.1 to 3 constructed their houses in their respective sites by spending their hard earned money and also by availing house construction loans from banks and financial institutions. That from the past thirteen years there was no agricultural operation on the land in Sy.No.81/2 where the layout is formed and it is fully developed residential layout, and Horamavu Panchayat Authority has approved the residential layout by issuing House list numbers and House building licence to the site owners.6
Judgment O.S.No.17070/2004
3. The plaintiff further submits that such being state of affairs on 21/10/2004 the defendant No.5 appeared in the layout with untenable claim that he has purchased the land, under registered sale deed on 01/03/2004 to extent of 1 acre 7 guntas agricultural land from defendants No.1 to 3 and their children, wherein the layout was formed by defendants No.1 to 3 and had sold sites to him and others and put them in physical possession and enjoyment under registered sale deeds. The defendant No.5 has appeared in the layout on 21/10/2004 with his gang and henchmen and threatened him and other owners of sites and houses in the layout to give up their properties or they will be forcibly evicted from their properties. 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 7 Judgment O.S.No.17070/2004 now claimed by the 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.
4. The plaintiff further submits that the alleged sale deed of the defendant No.5 in respect of the same land wherein the layout as formed is fraudulent instrument and it does not confer any title to the defendant No.5 in respect of land wherein the layout was formed and the said sale deed claimed by the defendant No.5 is nullity and it does not affect in any manner the lawful title, rights and interest of the plaintiff on the suit schedule property. The defendant No.5 and his henchmen came to the layout on 21/10/2004 and threatened him 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 defendant No.5 also lodged caveat in Civil Judge Jr. Division court, Bangalore, which court has no jurisdiction over the area, against this plaintiff and few 8 Judgment O.S.No.17070/2004 other owners. He and other site owners in the layout are living under the threat of forceful eviction by the defendant No.5 and his supporters. The plaintiff submits that he has got legal right to peaceful possession and enjoyment of the suit property. The defendants No.1 to 5 by creating fraudulent title deeds and with manipulated revenue records made on the strength of such fraudulent title deeds are trying to interfere with his peaceful possession and enjoyment of the schedule property. The defendant No.5 with his men and money power is physically interfering and threatening to dispossess him from his property.
5. The plaintiff further submits that cause of action for this suit arose on 21/10/2004 when the defendant No.5 came and threatened to interfere with the his peaceful possession and enjoyment of the suit property. The plaintiff prays to decree the suit for permanent injunction restraining the defendants, their heirs, successors, agent from interfering with his peaceful 9 Judgment O.S.No.17070/2004 possession and enjoyment of the suit schedule property and award costs of suit.
6. The defendants No.1 to 3 have filed written statement. The defendants No.1 to 3 denied entire plaint allegations and also denied ownership of the plaintiff over the suit schedule property.
The defendants No.1 to 3 submit that the suit of the plaintiff for the relief of bare injunction without seeking the 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. Hence the suit is liable to be dismissed.
7. The defendants No.1 to 3 alleged suit schedule property is not at all in existence as it is described in the schedule to plaint. The defendants No.1 to 3 further submits that out of total extent 10 Judgment O.S.No.17070/2004 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 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 the title holders in possession and enjoyment of the extent of 1 Acre 7 guntas of land Sy.No.81/2 of Horamavu Village and they had sold said extent of land in favour of defendant No.5 Y.N. Kondareddy under registered sale deed dated 01/03/2004 and rectification deed dated 29/03/2004, since then defendant No.5 is in possession of said land. 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/defendant No.4 and have not entered in to any other transaction with the defendant No.4 except for the sale deed referred to above, which has been executed by the 11 Judgment O.S.No.17070/2004 defendants No.1 to 3. That no sites have been formed in land measuring an extent of 1 Acre 7 Guntas, which has been sold in favour of defendant No.5.
8. The defendants No.1 to 3 denied that the alleged site No.21 formed in Sy.No.81/2 of Horamavu Village has been purchased by plaintiff under registered sale deed on 22/02/1992 from defendant No.4 GPA holder of defendants No.1 to 3. The defendant No.1 to 3 submits that alleged GPA said to have been executed by defendants No.1 to 3 in favour of defendant No.4 which has been obtained by defendant No.4 from defendants No.1 to 3 by misrepresentation and playing fraud upon defendants No.1 to 3. Thus no power has been confirmed upon defendant No.4 under alleged General Power of Attorney. In fact the defendants No.1 to 3 did not own and possess suit schedule site and hence the question of executing General Power of Attorney in favour of defendant No.4 does not arise. The alleged layout plan said to have been furnished by the defendants No.1 to 12 Judgment O.S.No.17070/2004 4 to plaintiff at the time of entering in alleged sale agreement is got up and concocted layout plan. The defendants No.1 to 3 denied the allegations of plaint para Nos.2 to 12. The defendants No.1 to 3 submits there is no cause of action arose to the suit and alleged cause of action is false and plaintiff is not entitle for the relief claimed. The defendants No.1 to 3 prays to dismiss the suit with cost.
9. 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 plaintiff for relief of permanent injunction in respect of 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 boundaries mentioned in the schedule to plaint are not correct. The plaintiff is making an attempt to lay claim for portion in the 13 Judgment O.S.No.17070/2004 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 list No. under registered sale deed. There cannot be site bearing house list No in agricultural land. The house list number indicates that property is Gramatana property. However the 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 the house list number with its extent & boundaries as mentioned in the sale deed & that the said sites is within the Gramatana limits & the only plaintiff can claim right over suit schedule property.
10. The defendant No.5 further submits that plaintiff is not having title & possession to the property as it is described in the schedule to plaint. The court paid is insufficient. There is no 14 Judgment O.S.No.17070/2004 cause of action for the suit and hence plaintiff is not entitle for the 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 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 having sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour of Padmavathi Madareddy i.e. 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 thereof. 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 his favour under registered sale deed on 03/01/2004 and by rectification deed on 29/03/2004. That ever since 01/03/2004 date on which possession of the land has been delivered to him, he is in possession of said extent of 1 Acre 07 Guntas of land in 15 Judgment O.S.No.17070/2004 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 the aforesaid land. Then he approached the survey department and said land in Sy.No.81/2 of Horamavu village being surveyed and phoded, the land measuring an extent of 1 Acre 7 Guntas has been assigned with New Sy.No.81/3. The aforesaid extent of 1 Acre 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.
11. The defendant No.5 denied allegations of plaint paras No.2 to 12 as false. The defendant No.5 further submits that the document upon which the 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 plaintiff can't 16 Judgment O.S.No.17070/2004 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 to dismiss suit of plaintiff with costs.
12. On the basis of above pleadings following Issues are framed:
: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 from defendant?
(3) Whether the plaintiff is entitled to the reliefs claimed?
(4) What decree or order?
17
Judgment O.S.No.17070/2004
13. The plaintiff examined as PW.1 and marked ExP1 to ExP18. The defendant No.1 examined as DW.1. The defendant No.5 examined as DW.2 and marked ExD1 to ExD31.
14. The plaintiff counsel argued. The defendants No.1 to 3 counsel argued. The defendant No.5 counsel argued and written arguments with citations. Perused records.
15. 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:
:REASONS:
16. Issues No.1 to 3:
The plaintiff T.N.Narayanan Unni S/o T. Narayana Kurup filed his affidavit in lieu of examination in chief as PW.1 18 Judgment O.S.No.17070/2004 and deposed evidence that he is absolute owner in possession and enjoyment of suit schedule property. He has purchased site No.21 schedule property from defendants No.1 to 3 through their GPA holder defendant No.4 for under registered sale deed on 20/02/1992. The defendants No.1 to 3 were earlier original owners of schedule site No.21 and through their power of attorney holder defendant No.4 sold the schedule site to him. After purchase of site No.21 from his vendors, he got khata changed in his name in the village panchayat. That he has constructed house in schedule site as per the plan and he is residing there along with his family since the year 1996. The 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 sites in northern portion of their land in Sy.No.81/2 to an extent of 1 acres 24 Guntas with total number of 47 sites and got House list Khatha allotted to sites and offered to sell to intending purchasers through their power of Attorney 19 Judgment O.S.No.17070/2004 holder defendant No.4. The schedule site was allotted with house list No.122/2. These sites were bounded by North: land in Sy.No.81/1 belonging to Yamanna, East: land in Sy.No.84 belonging to Baluki Dasappa, West: Jayanthi grama, hamlet of Horamavu Village, South: the land (now sold) belonging to defendant No.4 in the same Sy.No.81/2.
17. The PW.1 further deposed that in the year 1996 he has constructed residential building on his site No.21 after obtaining building licence from Horamavu village Panchayat Authorities and ever since he and his family members are staying in said house. Like him, many others have purchasers of sites as from defendants No.1 to 3 constructed their houses in their respective sites by spending our hard earned money as well as by availing house construction loans from banks and financial institutions.
He and other purchasers are in peaceful possession of respective sites with the houses on them. That for past thirteen years there was no agricultural operation on the land in Sy.No.81/2 where 20 Judgment O.S.No.17070/2004 layout is formed and fully developed residential layout, Horamavu Panchayat Authority has approved residential layout by issuing House list numbers and House building licence to site owners. Such being the state of the affairs in this well settled residential layout. On 21/10/2004 the defendant No.4 with his gang and henchmen appeared in layout with untenable claim that he has purchased land as agricultural land, wherein the layout was formed by the defendants No.1 to 3 about 13 years ago and sold the said sites to me and other purchasers. The defendant No.5 claims that he has purchased land under registered sale deed dated 01/03/2004 to an extent of 1 Acre 7 Guntas agricultural land from defendants No.1 to 3 and their children wherein the layout was formed. The defendant No.5 on 21/10/2004 along with gang and henchmen threatened him and other owners of sites and houses in the layout to give up their properties or else they would be forcibly evicted from their properties. Against this forceful threatened interference and eviction by the defendant No.5, he 21 Judgment O.S.No.17070/2004 and other site owners have filed police complaint in the Ramamurthy Nagar Police Station. He along with site owners tried to contact defendants No.1 to 4 to find out about the untenable claim of the defendant No.5 over their properties. But defendants No.1 to 4 were avoiding to answer his queries and other purchasers. It has become clear to him and other owners of the sites in the layout 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 properties and properties of others in the layout and for making unlawful gain for themselves. That after formation of sites in their land in Sy.No.81/2 and sale of sites under registered sale deeds to him and other purchasers for valuable consideration and putting purchasers in possession of properties, defendants No.1 to 3 had no more rights, title or interest remaining with them in respect of land to convey to defendant No.5 under sale deed on 01/03/2004. It is fraudulent instrument and same does not confer 22 Judgment O.S.No.17070/2004 any title to defendant No.5 in respect of same land wherein layout was formed. The sale deed claimed by defendant No.5 is nullity and it does not affect in any manner his lawful title, right and interest on suit schedule property. The defendant No.5 also lodged caveat in Civil Judge Jr. Division court, Bangalore, which court has no jurisdiction over the area, against him and other site owners when the property in question is situation with in Bangalore Metropolitan limits within the jurisdiction of this court.
18. The PW.1 further deposed that he and other site owners in the layout are living under threat of forceful eviction by defendant No.5 and his supporters, who with his money and muscle power physically interfering and threatening to dispossess him from his property. The defendants No.1 to 5 by creating fraudulent title deeds and with manipulated revenue records made on the strength of fraudulent title deeds are trying to interfere with his peaceful possession and enjoyment of schedule property. 23
Judgment O.S.No.17070/2004 The PW.1 prays to decree the suit as prayed in plaint. In support of oral evidence PW.1 marked documents ExP1 to ExP18.
19. 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 the plaintiff filed above suit for permanent injunction in respect of non existed alleged suit schedule property, the 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 17 Guntas originally belongs to their grandmother Venkatamma, she executed registered Will dated 13/06/1988 in 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 24 Judgment O.S.No.17070/2004 and possession as per her last will executed in their favor. The DW.1 further deposed evidence that they became absolute owners of land measuring 1 acre 37 guntas including kharab of 6 Guntas in 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.
20. The DW.1 further deposed evidence 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 1Acre 13 Guntas including 6 guntas of kharab, which is Northern portion of Sy.No.81/2. He and defendants No.2 and 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 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 25 Judgment O.S.No.17070/2004 crypt in mentioning on boundaries under the aforesaid sale deed, they have executed rectification deed immediately. After the purchase Y.N. KondaReddy became 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. In pursuant of registered sale deed in favour of Y.N.Kondareddy, he continued in lawful possession and enjoyment of said land and said land 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 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 not benefited with education and not acquainted with worldly affairs, they know only put signature in Kannada not known reading and writing of languages. That false allegation of plaintiffs that they executed GPA in respect of alleged Katha No.122/1, 122/2, 129/2, 26 Judgment O.S.No.17070/2004 129/3 and 135/4 properties in favour of defendant No.4 and in turn she representing them sold alleged Site No.21 alleged house list Katha No.122/2 measuring 30 X 40 feet in favour of plaintiff during year 1992 is false. They have no such Katha property or sites at alleged Horamavu village limits, the allegations of plaintiff 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.122/2 at Horamavu village, K.R.Puram Hobli are bogus, fictitious Katha number fraudulently concocted and created by plaintiffs to suit their false convenience and attribute claims in their alienated agricultural land in Sy.No.81/2.
21. The DW.1 further deposed that plaintiffs have concocted and got up documents styled as sale deeds in respect of non existed property, by misusing the bogus and concocted 27 Judgment O.S.No.17070/2004 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.Konda Reddy, 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 said land. They have not sold any piece or inch to anybody. The alleged sale deed of plaintiff does not reflect survey number in which the alleged sites are formed. That after alienating their land in Sy.No.81/2 measuring 1 acre 7 Guntas in favour of Y.N.Konda Reddy, they have no interest in said land, alleged cause of action is false and imaginary. The DW.1 prays to dismiss the suit of plaintiff with exemplary cost.
28
Judgment O.S.No.17070/2004
22. The defendant No.5 Y.N.Konda Reddy S/o.Narayana Reddy filed his affidavit in lieu of examination in chief as DW.2 and deposed evidence that plaintiff filed suit against defendants for the reliefs of permanent injunction in respect of residential premises bearing site No.21 formed in northern portion of land in Sy.No.81/2 of Horamavu Village, in house list katha No.122/2, 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. The suit filed by plaintiff for the reliefs of permanent injunction in respect of alleged non existence of suit schedule property is not sustainable either in law or on facts. That without seeking for the declaratory relief of title mere suit for bare injunction is not maintainable in law and hence plaintiff not entitle for relief of permanent injunction. 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 29 Judgment O.S.No.17070/2004 defendants No.1 to 3 after enquiry and verifying title of his vendor and comes to the conclusion that vendors having 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 plaint schedule property extent and boundaries mentioned in plaint schedule is not at all correct. The boundaries and extent and property as stated in the plaint and 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. The plaintiff is making attempts to lay claim in portion 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 under registered sale deed. The suit schedule property is nothing to do with land bearing old Sy.No.81/2 and New Sy.No.81/3 of Horamavu 30 Judgment O.S.No.17070/2004 village, and the alleged description of the plaint schedule, its boundaries and sale deed referred in plaint is in respect of property situated in gramatana of Horamavu and not at pertaining to the agricultural land.
23. The DW.2 further deposed that there cannot be site bearing House list number in agricultural land. The house list number indicates that property is Gramatana property. However the plaintiff is trying to lay to claim for 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 pleadings and in evidence affidavit the documents relayed upon by him are different to each other and therefore plaintiff is not entitle for any relief as sought for in plaint claiming the suit property in the portion of land in Sy.No.81/2 of Horamavu village. The plaintiff has to establish that there is site bearing house list No. with its extent and boundaries as mentioned in sale 31 Judgment O.S.No.17070/2004 deed and said site is within the Gramatana limits and then only plaintiff can claim right over suit schedule property. The plaintiff failed to establish 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 title and possession to property described in the plaint schedule and as such plaintiff cannot value the site at Rs.1000/- under section 26(C) of KCF and SV Act 1956. The plaintiff has to value the suit on market value of suit property. The vendor of plaintiff has no manner of right title interest or possession over suit schedule property and as such plaintiff does not derive any right, title or possession. The document produced by the plaintiff are all concocted, created and got up documents. The documents are not at all existence in the Horamavu village panchayath. The vendor of plaintiff also does not find place in the Horamavu village Panchayath. On the strength of created and concocted documents false suit came to be filed against him on non existence of suit schedule property. There is no cause of 32 Judgment O.S.No.17070/2004 action for the suit and plaintiff is not entitle for permanent injunction for want of cause of action. The defendants No.1 to 3 are 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 and they have 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 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 said 1 acre 7 guntas in Sy.No.81/2 of Horamvu Village in his favour under registered sale deed dated 01/03/2004 for valuable consideration. The vendors have noticed that there is some discrepancy in boundaries and therefore they have executed rectification deed on 29/03/2004. That ever since 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 33 Judgment O.S.No.17070/2004 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 said property. Since the date of purchase he is paying Kandayam in respect of the said property. That after purchase he approached 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 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 34 Judgment O.S.No.17070/2004 of time and remained as an agricultural land and revenue authorities lawfully entered his name in the revenue documents.
24. The DW.2 further deposed that averments made in para No.2 of the plaint that under registered sale dated 20/02/2002, the site No.21 alleged formed in Sy.No.81/2 of Horamavu village has been purchased by 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 that the allegations of plaint paras No.3 to 13 as false. The alleged building licence and sanction plan are got up and concocted documents. That no sites have been formed in the land bearing old Sy.No.81/2 and New No.81/3 and as such the alleged sale deed are not at all valid one and the purchasers are not at all in possession of their respective sites. It is false that defendants No.1 to 3 had no right to convey land to him under sale deed on 01/03/2004. Further averment that sale deed 35 Judgment O.S.No.17070/2004 executed in his favour is fraudulent instrument and it does not confer any title in his favour is fraudulent instrument and it does not confer any title in his favour is false. Further averment that alleged layout was formed and his sale deed is nullity it does not affect alleged title of plaintiff in respect of suit property is false.
25. The DW.2 further deposed that averments made in paras No.10 to 13 of the plaint is false. He and his men came to the alleged layout on 21/10/2004 and threatened the plaintiff and other owners of interference and eviction and police complaint is lodged is false and baseless. No such complaint has been lodged against him. The alleged complaint produced by the plaintiff is a created and got up complaint. The documents upon which the plaintiff is relying in support of his title and possession of the schedule property do not in any manner relayed to the land in Sy.No.81/3 (Old sy.No.81/2) of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk and as such the plaintiff cannot claim any right or possession over any portion of the land in 36 Judgment O.S.No.17070/2004 Sy.No.81/3 (Old Sy.No.81/2) of Horamavu village, K.R.Puram Hobli.
26. The DW.2 further deposed evidence that 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 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 the 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 defendant No.4 under the alleged GPA. After sale by defendants No.1 to 3 in his favour, they did not own and possess any land. The alleged layout plan is 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 show that suit schedule property comes within jurisdiction of Horamavu village panchayath. The 37 Judgment O.S.No.17070/2004 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 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 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 statement are false and baseless. The DW.2 prays to dismiss the suit with exemplary 38 Judgment O.S.No.17070/2004 costs. In support of oral evidence the DW.1 marked ExD1 to ExD31.
27. 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.
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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.
28. The burden is on plaintiff to prove that he is absolute owner and in lawful possession and enjoyment of suit property as on date of suit and defendant caused interference to his 40 Judgment O.S.No.17070/2004 possession and enjoyment over the suit schedule property. The 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 sites in the Northern portion of their land in Sy.No.81/2 to an extent of 1 acres 24 Guntas with a total number of 47 sites and got House list Khatha allotted to sites and offered to sell to intending purchasers through their power of Attorney holder defendant No.4. The schedule site was allotted with house list No.122/2. He has purchased Site No.21 schedule property from defendants No.1 to 3 through their GPA holder defendant No.4 under registered sale deed on 20/02/1992 and since then he is in peaceful possession and enjoyment of suit property. That he has constructed house in the schedule site as per plan and he is residing there along with his family since the year 1996. That for past thirteen years there was no agricultural operation on the land in Sy.No.81/2 where layout is formed and fully developed residential layout, Horamavu Panchayat Authority has approved 41 Judgment O.S.No.17070/2004 residential layout by issuing House list numbers and House building licence to the site owners. Now the defendants are causing obstruction to his possession and enjoyment over the suit schedule property.
29. The plaintiff examined as PW.1 as discussed above. In support of oral evidence plaintiff/PW.1 marked ExP1 to ExP18. The ExP1 is original sale deed dated 20/02/1992 executed by executed by defendants No.1 to 3 through their GPA holder defendant No.4 in favour of present plaintiff T.N.Narayanan Unni respect of suit schedule property bearing Site No.21 in portion of House List No.122/2 situated at Horamau village, K.R.Pura Hobli, Bangalore South Taluk measuring East to west 30 feet and North to South 40 feet. The ExP2 is encumbrance certificate for the period from 01/06/1989 to 31/03/2004, wherein there are entries regarding sale of site No.21, khatha No.122/2 of Horamavu villlage by defendant No.1 to 3 through their GPA Sripadmavathi in favour of plaintiff T.N.Narayana Unni on 42 Judgment O.S.No.17070/2004 20/02/1992. The ExP3 is unregistered agreement of sale of site No.21 khatha of Horamavu village executed by defendant No.1 to 3 through their GPA Sripadmavathi in favour of plaintiff T.N.Narayana Unni on 05/10/1991. The ExP4 is copy of layout map. The ExP5 is demand register of site No.21 for the year 1992-1993, wherein name of plaintiff is appeared as owner and occupant of the property kahata No.122/2. The ExP6 and ExP7 are tax paid receipts. The ExP8 is construction permission and ExP9 is sanctioned plan issued by village panchayath, Horamavu village for construction of building in Site No.21 of Horamavu village, K.R.Puram Hobli to present plaintiff T.N.Narayanan Unni and ExP10 receipt. The ExP11 to ExP14 are are photographs marked as they belongs to suit schedule property. The ExP15 and ExP16 are tax paid receipts. The ExP17 is complaint given by plaintiff to Sub-Inspector of Ramamurthy Nagar police station alleging harassment to residents by some miscreants. In ExP18 three tax paid receipts are marked.
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30. On the contrary the defendant No.1 examined as DW.1 as discussed above and he denied the allegation of plaintiff that plaintiff is owner of the suit schedule property and defendant No.1 contention that there is no existence of suit schedule property, description of property boundaries measurement mentioned in the plaint schedule is imaginary. The defendant No.1 contention that 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 20 guntas in favour of Munivenkatamma on 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 absolute owners of the land measuring 1 44 Judgment O.S.No.17070/2004 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 Gram, 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 absolute owner in possession of land sold by them and same was bounded by East:Land of Baluki Dasappa, West:
Jayanthi Gram, North: Land of Yamanna and South: land of Padmavahi Madireddy. In pursuance of registered sale deed in favour of Y.N. Kondareddy he continued in possession of said land and afterwards said land was sub phoded as Sy.No.81/3 and 45 Judgment O.S.No.17070/2004 said Kondareddy is in possession and enjoyment of said land and his name is appearing in revenue records as owner in possession.
31. The defendant No.5 said Y.N. Kondareddy examined as DW.1 and he has also deposed 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 suit schedule property and also submits there is no existence of suit schedule property within boundaries as contended by plaintiff. The defendant No.5 contention that plaintiff trespassed into the possession of land bearing Sy.No.81/2 measuring 1 acre 7 guntas and new Sy.No.81/3 of Horamavu and got constructed building and in this regard he filed suit in OS.No.3483/2005 on the file of this court for the relief of declaration and mandatory injunction, possession and other reliefs.
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32. The defendant No.5/DW.2 in support of oral evidence marked ExD1 to ExD31. The ExD1 is certified copy of plaint and ExD2 is certified copy of written statement in O.S.No.3483/2005 which is filed by present defendant No.5 Y.N. Kondareddy against defendant No.1 Narayanappa and others. The ExD3 is certified copy of plaint and ExD4 is certified copy of written statement in O.S.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 portion of agricultural dry land bearing Sy.No.81/2 measuring 1 Acre 7 Guntas + 6 Guntas Kharab situated at Horamavu village, K.R.Puram Hobli, Bangalore bounded by East, West, South: Baluki Dasappa's land, North: Padmavati's land. The ExD6 is certified copy of rectification deed dt.29/03/2004 executed by defendants No.1 and his wife and 47 Judgment O.S.No.17070/2004 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 record of right of land bearing Sy.No.81/2 to the extent of 1 Acres 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 Karnataka revision settlement Aakaar bandh relating to Sy.No.81/2. In ExD13 four certified copies of record 48 Judgment O.S.No.17070/2004 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, but said document is not in reading conditions, as only written matter of half page is in readable condition and another half written matter is not in readable condition, hence said document is not discussed.
33. The ExD15 is certified copy of 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. The ExD16 is typed in evidence and marked as certified copy of 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 fourteen certified copies of endorsements issued by BBMP are marked as 49 Judgment O.S.No.17070/2004 ExD17(1) to ExD17(14) 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, 4, 5, 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 layout 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 Atlas relating to Sy.No.81/2. The ExD20 is certified copy of endorsement issued by Ramamurthy Nagar police station on the application of Y.N. Konda Reddy. 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 the endorsement issued by the Deputy Commissioner, Bengaluru to 50 Judgment O.S.No.17070/2004 Y.N. Kondareddy to the information called by Y.N. Kondareddy about conversion 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.
34. 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 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 Abbaiah, i.e. defendants No.1 to 3 have sold 30 Gunatas in Sy.No.81/2 of 51 Judgment O.S.No.17070/2004 Hormavu village, K.R.Puram Hobli, Bangalore South Taluk in favour of defendant No.4 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 IA.1 in the said suit. The ExD29 is certified copy of the 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.
35. The contention of plaintiff that he has purchased the suit schedule property possession of site No.21 from defendants No.1 to 3 through their GPA holder defendant No.4 under registered sale deed on 20/02/1992. The plaintiff has produced and marked 52 Judgment O.S.No.17070/2004 ExP1 to ExP13, out of those documents the ExP1 is sale deed dated 20/02/1992 regarding purchase of suit schedule property by plaintiff from the defendants No.1 to 3 through their GPA holder defendant No.4, ExP2 is encumbrance certificate, ExP3 DCB register, ExP6 & 7 are tax paid receipt, ExP8 is sanctioned plan. Further the plaintiff has not produced katha extract and katha certificate issued by BBMP to show that his name is appeared in the revenue records of BBMP. Further as per plaintiff the 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 said land and offer to sell said sites to the intending purchasers to their Power of Attorney holder i.e. defendant No.4. Accordingly he purchased the suit schedule property from General Power of Attorney of defendants No.1 to 3 by name Madireddy Sripadmavathi/defendant No.4 on 20/02/1992. The defendant No.1 examined as DW.1 denied execution of Power of Attorney in favour of defendant No.4 53 Judgment O.S.No.17070/2004 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 sites to different purchasers. The defendant No.1 to 3 contention that they have sold 1 acre 7 guntas + 6 guntas pot kharab land to defendant No.5 Y.N. Kondareddy on 01/03/2004.
36. 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 is possession and enjoyment of said agricultural land. The defendant No.5 denied regarding formation of 47 sites in Sy.No.82/1 measuring 1 Acre 24 Guntas of Hormavu. In support of his oral contention the DW.2 marked ExD5 certified copy of 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 54 Judgment O.S.No.17070/2004 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 record of rights of 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 Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village in the year 2004-2005 till 2009-2010 discloses name of defendant No.5 Y.N. Kondareddy as owner and cultivator of said land. Under the circumstances burden is on plaintiff to prove that the said land bearing Sy.No. 81/2 to an extent of 1 acre 24 guntas of Horamavu village defendants No.1 to 3 formed 47 sites and sold to different purchasers through their GPA holder defendant No.4. But to 55 Judgment O.S.No.17070/2004 prove said fact the plaintiff has not produced 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 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.122/2 of Horamavu village was given. But to prove said fact there is no specific document produced by the plaintiff.
37. The plaintiff/PW.1 in his cross examination deposed evidence that "Sy.No.81/2 was 3 Acres 23 Guntas. Narayanappa, Nagaraj and Shivaraj are owners. They got it under Will. Will is executed Smt. Venkatamma on June 1986. I have produced copy of Will. Mode of title of my vendors is not shown in sale deed. It is not DC converted. We have not got permission to purchase revenue land. In panchayat it is mentioned that sites are made in Sy.No.81/2. I have no 56 Judgment O.S.No.17070/2004 documents of order of grama panchayat permitting the owners of Sy.No.81/2 for making sites. I do not have documents to show that khata No.122/2 is created out of Sy.No.81/2. No approal is there to layout sketch. The PW.1 further deposed evidence in his cross examination "There is no description of khata No.122/2 in ExP4. I have no any other document to show that Khata No.122/2 pertains to any particular Sy.No or any particular site in he Sy.No.81/2. Site number and khata number is described in sale deed". The PW.1 further deposed evidence that "My site is recognized by BBMP, but khata certificate not issued by BBMP, but issued B-khata, but he had not produced B-khata". The PW.1 further deposed evidence that "My site No.21 is the schedule property. This site is within Sy.No.82/1 of Horamavu village. I have read recitals in my sale deed. In my sale deed Sy.No.81/2 is not described". The PW.1 further deposed evidence that "It is true to suggest that Sy.No.81/2 is not stated in my sale deed, 57 Judgment O.S.No.17070/2004 there is no conversion order to Sy.No.81/2. There is no layout plan by approved by competent authority in Sy.No.81/2". Therefore the evidence of PW.1 discloses that there is no conversion of land bearing Sy.No.81/2 Hormavu village and there is no document regarding conversion. 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 plaintiff deposed there is no mention of Sy.No.81/2 in his sale deed. The documents produced by the plaintiff DCB register sanctioned plan and encumbrance certificate are not sufficient to come to conclusion that the plaintiff is the 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 also title of the plaintiff over suit schedule property. Under the circumstances the suit of plaintiff for bare injunction is not maintainable.
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38. 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 said documents are not found in 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 No.9 and 10 of the said properties are not in the name of Nagaraju, Narayanappa and Jayarama. Further the ExD23 is endorsement 59 Judgment O.S.No.17070/2004 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 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 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 regard to the identification of the property, no declaration and injunction can be granted." Further in the another citation reported in ILR 60 Judgment O.S.No.17070/2004 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 enjoyment over the suit schedule property as on date of suit, hence question of interference by the defendants in 61 Judgment O.S.No.17070/2004 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.
39. Issue No.4:
In view of above discussion I proceed to pass the following :ORDER:
The suit of the plaintiff is here by dismissed with costs.
Draw decree accordingly.
(Dictated to the stenographer on computer, typed by her. Then corrected on line in computer 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.62
Judgment O.S.No.17070/2004
:ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : T.N.Narayanan Unni S/o T. Narayana Kurup
DOCUMENTS MARKED FOR THE PLAINTIFF
ExP1 : Sale deed dated 20/02/1982,
ExP2 : Encumbrance certificate
ExP3 : Sale Agreement dated 05/10/1991,
ExP4 : Layout plan copy,
ExP5 : Demand Register extract,
ExP6 & ExP7: Tax paid receipts
ExP8 : Building License,
ExP9 : Sanctioned plan
ExP10 : Receipt of Horamavu G.P
ExP11 to ExP14: Photos
ExP15 & ExP16: Tax paid receipts
ExP17 : Police complaint copy,
ExP18 : Three tax paid receipts.
WITNESSES EXAMINED FOR THE DEFENDANTS
DW.1 :Narayanappa S/o Venkataswamppa
DW.2 :Y.N.Kondareddy S/o Narayan Reddy
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DOCUMENTS MARKED FOR THE DEFENDANTS
ExD1: Certified copy of plaint in O.S.No.3483/2005 ExD2: Certified copy of Written Statement in O.S.No.3483/2005 ExD3: Certified copy of plaint in O.S.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 ExD13(1) to Ex.D13(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(14): Certified copy of endorsement BBMP ExD18(1) to ExD18(3): Certified copy of Mutation Registers ExD19: Certified copy of Allot copy ExD20: Certified copy of Police endorsement ExD21: Certified copy of RTI information by Sub-Registrar Banaswadi 64 Judgment O.S.No.17070/2004 ExD22: Certified copy of Endorsement of Deputy Commissioner ExD23: Certified copy of Endorsement by Tahasildar ExD24(1) to Ex.D24(2): Certified copy of 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 by Assistant Commissioner XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.