Bangalore District Court
Mrs. Shakira Begum vs Sri. Venkatesh on 4 January, 2016
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
XVII Addl. City Civil & Sessions Judge.
Dated this 4th Day of January 2016
OS.No. 1429/2008 & OS.No.2295/2010
OS.No.1429/2008
Plaintiffs : 1. Mrs. Shakira Begum
D/o late H.Ahmed Ali Khan,
W/.o Mr. Samiulla Shariff,
Aged about 56 years,
R/at No.20, Sindhi Colony,
2nd Cross, Wheelers Road
Bengaluru - 5.
2. Mr. Rahamatulla Khan
S/o late H.Ahmed Ali Khan,
Aged about 53 years,
R/at No.50, Millers Road,
2nd Cross, Benson Town
Bengaluru - 45.
3. Mr. Shafiulla Khan
S/o late H.Ahmed Ali Khan,
Aged about 51 years,
R/at Post Box No.102,
PIN 120, Quiyat, Muscat,
Sultanate of Oman,
Rep. by G.P.A. Holder,
Mrs. Shakira Begum [Plaintiff No.1]
4. Mrs. Shahina Begum Khan
D/o late H.Ahmed Ali Khan,
W/o late Raifq Ahmed,
Aged about 49 years,
R/at No.43, Lazar Road Cross,
Frazer Town, Bengaluru.
2 O.S.No.1429/2008 & 2295/2010
5. Mrs. Shamshad Begum
D/o late H.Ahmed Ali Khan,
W/o Abdul Jabbar,
Aged about 47 years,
R/at No.8, Annipura Main Road,
Sudhamanagar
Bengaluru - 27.
6. Mr. Naseerulla Khan
S/o late H.Ahmed Ali Khan,
Aged about 44 years,
R/at No.9/2, 2nd Cross,
Lalbagh Fort Road, Doddamavalli,
Bengaluru - 4.
7. Mrs. Irfana Begum
D/o late H.Ahmed Ali Khan,
W/o Mr. Liyakath Ali Baig,
Aged about 44 years,
R/at No.6, Thimmaiah Road,
Shivajinagar, Bengaluru.
8. Mrs. Farah Afzal
D/o late H.Ahmed Ali Khan,
W/o Afzal Ahmed
Aged about 43 years,
R/at No.10, 1st Main I.T.I. Layout
Benson Town, Bengaluru - 46.
9. Mr. Fasiulla Khan
S/o late H.Ahmed Ali Khan,
Aged about 41 years,
R/at No.17, Rayappa Road,
Frazer Town, Bengaluru - 5.
10. Mrs. Nazima Begum
D/o late H.Ahmed Ali Khan,
W/o Mukaram Pasha
Aged about 39 years,
R/at No.17, Rayappa Road,
Frazer Town, Bengaluru - 5.
3 O.S.No.1429/2008 & 2295/2010
11. Mr. Naveedulla Khan
S/o late H.Ahmed Ali Khan,
Aged about 53 years,
R/at No.91, Charles Cambell Road,
Cox Town, Bengaluru.
12. Mrs. Nahid Taranum Ahmed
D/o late H.Ahmed Ali Khan,
W/o Mohammed Munawar Ahmed
Aged about 34 years,
R/at C/o Singapore Air Lines,
P.O. Box No.25422,
Safat - 13115, Kuwait
Rep. by Power of attorney holder
Mrs. Shakira Begum - plaintiff No.1
[By Sri. H.V.Subramanya - Adv.]
-Vs-
Defendant : Sri. Venkatesh
S/o Byalappa
Aged Major,
R/at Shettihalli Village,
Janatha Colony, Jalahalli West,
Bengaluru - 15
[By Sri.M.S.G., Adv.]
Date of institution of the suit 20.02.2008
Nature of the suit Permanent injunction
Date of commencement of 03.09.2011
recording the evidence
Date on which the judgment 04.01.2016
was pronounced
Total duration Years Months Days
07 10 15
4 O.S.No.1429/2008 & 2295/2010
OS.No.2295/2010
Plaintiffs : 1. Anjinappa
S/o late Bylappa,
Aged about 50 years,
2. Venkatesh
S/o late Bylappa,
Aged about 40 years,
3. Srinivas
S/o late Ganga Venkatappa,
Aged about 31 years,
4. Bylanjinappa
S/o late Ganga Venkatappa,
Aged about 29 years,
5. Manjunath
S/o late Ganga Venkatappa,
Aged about 26 years,
All are R/at Shettyhalli Village,
Janatha Colony, Jalahalli West Post,
Bengaluru - 15.
[By Sri. C.M.Govinda Reddy - Adv.]
-Vs-
Defendants : 1. Mr. Rahamatulla Khan
S/o late H.Ahmed Ali Khan,
Aged about 56 years,
R/at No.50, Millers Road,
2nd Cross, Benson Town
Bengaluru - 46.
2. Mrs. Shakira Begum
D/o late H.Ahmed Ali Khan,
W/o Mr. Samiulla Shariff,
Aged about 58 years,
5 O.S.No.1429/2008 & 2295/2010
3. Mr. Shafiulla Khan
S/o late H.Ahmed Ali Khan,
Aged about 54 years,
D-2 & 3 are R/at No.20,
Sindhi Colony, 2nd Cross,
Wheelers Road
Bengaluru - 5.
4. Mrs. Shahina Begum Khan
D/o late H.Ahmed Ali Khan,
W/o late Raifq Ahmed,
Aged about 50 years,
R/at No.43, Lazar Road Cross,
Frazer Town, Bengaluru.
5. Mrs. Shamshad Begum
D/o late H.Ahmed Ali Khan,
W/o Abdul Jabbar,
Aged about 49 years,
R/at No.8, Annipura Main Road,
Sudhamanagar
Bengaluru - 27.
6. Mr. Naseerulla Khan
S/o late H.Ahmed Ali Khan,
Aged about 46 years,
R/at No.9/2, 2nd Cross,
Lalbagh Fort Road, Doddamavalli,
Bengaluru - 4.
7. Mrs. Irfana Begum
D/o late H.Ahmed Ali Khan,
W/o Mr. Liyakath Ali Baig,
Aged about 45 years,
R/at No.6, Thimmaiah Road,
Shivajinagar, Bengaluru.
8. Mrs. Farah Afzal
D/o late H.Ahmed Ali Khan,
W/o Afzal Ahmed
Aged about 44 years,
R/at No.10, 1st Main I.T.I. Layout
6 O.S.No.1429/2008 & 2295/2010
Benson Town, Bengaluru - 46.
9. Mr. Fasiulla Khan
S/o late H.Ahmed Ali Khan,
Aged about 43 years,
10. Mrs. Nazima Begum
D/o late H.Ahmed Ali Khan,
W/o Mukaram Pasha
Aged about 41 years,
D-9 & 10 are R/at No.17,
Rayappa Road, Frazer Town,
Bengaluru - 5.
11. Mr. Naveedulla Khan
S/o late H.Ahmed Ali Khan,
Aged about 55 years,
R/at No.91, Charles Cambell Road,
Cox Town, Bengaluru.
12. Mrs. Nahid Taranum Ahmed
D/o late H.Ahmed Ali Khan,
W/o Mohammed Munawar Ahmed
Aged about 37 years,
C/o Smt.Shakira Begum
R/at No.20, Sindhi Colony,
2nd Cross, Wheelers Road
Bengaluru - 5.
13. M/s GM Infinite Dwelling Pvt. Ltd.,
A Company Incorporated under
the Companies Act, 1956
No.6, G.M. Pearl, BTM Layout,
1st Stage, 1st Phase,
Bengaluru - 68,
Rep. By its Managing Director
Mr. Gulam Mustafa
[By Sri.H.V.Subramanya, Adv.]
7 O.S.No.1429/2008 & 2295/2010
Date of institution of the suit 03.04.2010
Nature of the suit Declaration & injunction
Date of commencement of 03.09.2011
recording the evidence
Date on which the judgment 04.01.2016
was pronounced
Total duration Years Months Days
05 09 01
(Ravindra Hegde),
XVII Addl. City Civil & Sessions Judge.
COMMON JUDGMENT
OS.No.1429/2008 is filed by the plaintiffs 1 to 12 against
the defendant Sri.Venkatesh S/o Bylappa for permanent
injunction restraining him from interfering in peaceful
possession of the suit property by the plaintiffs.
OS.No.2295/2010 is filed by the plaintiffs 1 to 5
including Venkatesh S/o Bylappa against the defendants 1 to
13 for a declaration that the plaintiffs have got absolute right
and title over the suit property and for permanent injunction
restraining the defendants from interfering with the plaintiffs'
peaceful possession and enjoyment of the suit property and for
mandatory injunction and also praying to direct the defendants
8 O.S.No.1429/2008 & 2295/2010
to deliver vacant possession of the western portion of the suit
property by removing the permanent structure.
2. The plaintiffs in OS.1429/08 who are the defendants
1 to 12 in OS.2295/10 have filed OS.1429/08 for permanent
injunction. The case of the plaintiffs is that the plaintiffs are the
absolute owners and are in possession and enjoyment of the
suit property in Sy.No.83/1 and 83/2 erstwhile Sy.No.8,
situated at Jodi Mallasandra village, Yeshwanthpura Hobli,
Bengaluru, measuring in all 4 acres 13 guntas described in the
schedule. The grandfather of the plaintiffs M.A.Hafeez Khan had
purchased this property by two registered sale deeds dated
28.1.1952 and 19.5.1954 and he was in possession and
enjoyment of 3 acres 38 guntas including 15 guntas of kharab.
He got portion of the property converted form agriculture to
non-agricultural purpose. After coming into force of Mysore
[Personal & miscellaneous] Inam Abolition Act, 1954,
M.A.Hafeez Khan applied for grant of occupancy rights and the
Special Deputy Commissioner for Inams Abolition has initiated
proceedings in Case No.86/1959-60 and passed an order on
9.7.1961 registering the applicant as permanent tenant to an
extent of 3 acres 38 guntas of land in Sy.No.8 which is
9 O.S.No.1429/2008 & 2295/2010
renumbered as Sy.No.83 of Jodi Mallasandra village. M.A.Hafeez
Khan died in 1963 leaving behind his wife, two daughters and
two sons. Wife and two daughters have sold their 5/12th share
in the property to the two sons of M.A.Hafeez Khan by name
H.Ahmed Ali Khan and H.Azeez Khan by registered sale deed
dated 23.10.1967. Thereby two sons of M.A.Hafeez Khan have
become the absolute owners to the suit property. Subsequently,
H.Ahmed Ali Khan sold his half undivided share in fvaour of his
wife Smt.Sayeeda Banu @ Mushtari Begum by sale deed dated
30.3.1972. His brother AzeezKhan released his half undivided
share in favour of H.Ahmed Ali Khan by release deed dated
1.9.1973 which was later rectified by rectification deed dated
5.6.1974. Smt.Sayeeda Banu @ Mushtari Begum has gifted 31
guntas on 9.5.2002 in favour of plaintiff No.2 out of her half
share by oral gift. H.Ahmed Ali Khan and Sayeeda Banu who
have become absolute owners to the property have died in the
year 1978 and 2003 respectively and their children who are
plaintiffs 1 to 12 have succeeded to the property excluding 31
guntas which was gifted to plaintiff No.2 and khatha is also
changed in their names as per mutation MR.No.5/2005-06.
After phodi, the revenue authorities renumbered the said land
10 O.S.No.1429/2008 & 2295/2010
as Sy.No.83/1 and 83/2. The plaintiffs have got partitioned the
schedule properties by metes and bounds by partition deed
dated 18.3.2006. The plaintiffs are in joint possession and
enjoyment of the suit properties. The plaintiffs with an intention
to put up residential apartment opted for getting the land
converted by paying requisite fee. The defendant has no right,
title and interest in the suit property and he has been trying to
interfere in plaintiffs' possession and enjoyment of the suit
property. In 2005, the defendant has moved an application to
the Special Tahsildar seeking transfer of khatha to his name in
respect of Sy.No.83 to an extent of 8 acres 31 guntas. The
plaintiffs contested the matter. The Special Tahsildar has
rejected the case filed by the defendant by its order dated
18.12.2006. Subsequently, the defendant made continuous
attempts to trespass over the suit property and complaint is
also given to the police. Since the defendant is interfering in
plaintiffs' possession and enjoyment of the suit property, the
plaintiffs have filed OS.No.1429/08 seeking permanent
injunction.
3. The defendant in OS.No.1429/08 has appeared and
filed the written statement in the said suit. This defendant and
11 O.S.No.1429/2008 & 2295/2010
he along with other 4 persons, filed OS.No.2295/10 against dfs
1 to 12 who are the plaintiffs in OS.No.1429/08. Subsequently
defendant No.13 is impleaded in OS.2295/10. The contentions
of these plaintiffs and the defendant in OS.No.1429/08 is that
the suit property in OS.2295/10 is situated in Sy.No.83
presently shown as Sy.No.83/1 and 83/2 measuring 7 acres 15
guntas is belonging to their family. The plaintiffs 1 and 2 and
Ganga Venkatappa were the children of Bylappa S/o Venkata of
Mallasandra village and Ganga Venkatappa died and his
children are the plaintiffs 3 to 5 in OS.2295/10. The plaintiffs of
the said suit constitute Hindu undivided joint family and they
are in joint possession and enjoyment of 7 acres 15 guntas.
Sy.No.83 measuring 8 acre 31 guntas, Sy.No.5/1 measuring 3
acres 26 guntas and Sy.No.80/1 measuring 1 acre 20 guntas
situated in Jodi Mallasandra village was belonging to Dandu
Muniya S/o Thimma and he sold it to one Kaniya S/o Muni
Nanjunda by registered sale deed dated 11.7.1916. Son of
Kaniya by name Venkata, his son Byla @ Bylappa was in
possession and enjoyment of the properties. Bylappa sold
Sy.No.5/1 measuring 3 acres 26 guntas to Narasimhaiah by
registered sale deed dated 4.8.1949 and he retained the two
12 O.S.No.1429/2008 & 2295/2010
items which were acquired by his grandfather in Sy.No.83
measuring 8 acres 31 guntas and 80/1 measuring 1 acre 20
guntas. Ganga Venkatappa during his life time has orally
permitted the third parties to occupy a portion of the suit
property on its southern side and houses have come up on the
southern side to an extent of nearly 30 guntas and on the
western side, the government has occupied an extent of 15
guntas for drawing High Tension wire for electricity supply.
Therefore, 7 acres 15 guntas in Sy.No.83 is remaining with the
plaintiffs. Bylappa during his life time, due to his illiteracy, has
not pursued the matter before the revenue authorities for
mutation of his name in the revenue records. But the
possession continued with the plaintiffs. The 2nd plaintiff made
an application to the Special Tahsildar to enter their names to
the property and when the proceedings were pending, the
defendants 1, 2, 3 and 10 have got mutated their names in the
RTC. Against the order of the Special Tahsildar refusing the
enter the names of the plaintiffs, appeal is filed before the
Assistant Commissioner and interim stay was obtained. When
enquiry was in progress, the defendants 1 to 12 have filed
OS.No.1429/08 and sought for permanent injunction stating
13 O.S.No.1429/2008 & 2295/2010
that they are the owners of land in Sy.No.83. The allegation that
the property was purchased by M.A.Hafeez Khan by sale deed
etc., are all false. It is contended that M.A. Hafeez Khan applied
for grant of occupancy right and he was declared as permanent
tenant to an extent of 3 acres 38 guntas in Sy.No.8 and that
survey number is renumbered as Sy.No.83, are false and the
contentions of the defendants about the relinquishment deed,
sale deeds etc., are also not genuine. The defendants have
obtained a statusquo order in OS.1429/08 by making false
representation. The entire sale transaction alleged by the
defendants are relating to the land in Sy.No.8 and not in respect
of Sy.No.83. There is no grant order pertaining to Sy.No.8 or 83
of Mallasandra village. The alleged grant is purposely created for
wrongful gain and there was no proceedings for renumbering
Sy.No.8 into Sy.No.83. The alleged sub-division of Sy.No.83 into
83/1 and 83/2 are made behind the back of the plaintiffs. The
sale deeds of M.A.Hafeez Khan of the year 1952 and 1954 are in
respect of property in Sy.No.8 measuring 3 acres 28 guntas
without any kharab land. The boundaries are clearly identifiable
with survey numbers and on the western side, water supply
road and on the eastern side land retained by the vendors of the
14 O.S.No.1429/2008 & 2295/2010
same Survey number is shown in the sale deeds. Therefore, the
claim of the defendants that they are the owners of 3 acres 38
guntas together with kharab is false and it falsifies the case of
the defendants. Sy.No.8 is totally different from Sy.No.83. If the
entire land in Sy.No.83 is surveyed with the ADLR, the exact
extent and its identity can be established. It is stated that the
mutation proceedings in favour of the defendants will not take
away the right, title and interest of the plaintiffs in the suit
property. During the pendency of the stay order, the defendants
have filed OS.No.1429/08 and obtained statusquo order. It is
stated that in the 2nd week of October 2010, the defendants
tried to interfere with the plaintiffs' possession and enjoyment of
the suit property, they tried to excavate in the western portion
of the suit land and then the plaintiffs filed application to vacate
the interim order granted in OS.1429/08 and the defendants
went on taking time to file objections and have put up a
temporary sheds in the portion of the land high handedly. It is
stated that the complaints are also given against the defendants
before the jurisdictional police. It is stated that on 29.3.2010
again the defendants made forcible attempts with machineries
and earth moving equipments to trespass into the suit property.
15 O.S.No.1429/2008 & 2295/2010
It is stated that during the pendency of the suit, after disposal
of the injunction application, the defendants entered into joint
development agreement with the 13th defendant and all the
defendants with the help of unlawful elements have started put
up permanent structure in the western portion of the suit
property to an extent of 4 acres 13 guntas without obtaining
any order from the court for making construction and by
flouting the ad interim order of statusquo passed in
OS.1429/08. Therefore, the plaintiffs have sought for the relief
of mandatory injunction for vacant possession of the property
by removing the permanent structure. With these averments,
the suit in OS.2295/10 is filed. Similar contentions are taken in
the written statement filed in OS.1429/08 by the defendant and
it is also stated that the court fee paid is not proper and there
should be separate schedule as to property is stated to have
been partitioned between the plaintiffs.
4. The defendants in OS.No.2295/10 have filed the
written statement reiterating their stand taken in the plaint in
OS.1429/08. Apart from the similar contentions taken by them
in the said suit, they have also contended that the court fee
paid is not proper and the suit is not maintainable and as on
16 O.S.No.1429/2008 & 2295/2010
the date of filing of the suit, the plaintiffs had no title to the
property. It is also stated that the property is within the limits of
BBMP and it is converted from agricultural to non-agricultural
purpose and requisite court fee is not paid. In the additional
written statement filed, the contentions taken by the plaintiffs
by amending the plaint are denied. The defendants have stated
that the joint development agreement entered into by the
defendants with the defendant No.13 which is much earlier to
filing of the present suit and as per the J.D.A., the defendants
through their developer have put up construction of four blocks
i.e., I-block up to 15 floors, II and III block up to 8 floors and IV
block is at the foundation stage, by obtaining proper and valid
license and plan approval from the competent authorities. It is
stated that the defendants are in actual possession of the suit
property and question of dispossession of the plaintiffs by the
defendants does not arise. On all these grounds, the suit in
OS.2295/10 is prayed to be dismissed.
The plaintiffs in OS.1429/08 are the defendants 1 to 12 in
OS.2295/10. The defendant in OS.1429/08 is the plaintiff No.2
in OS.2295/10. The suit properties in both the suits are in
same survey numbers. Therefore, both the suits are clubbed for
17 O.S.No.1429/2008 & 2295/2010
common evidence and common judgment and the common
evidence is recorded in OS.1429/08. For the sake of
convenience, hereinafter the plaintiffs in OS.No.1429/08 and
defendants in OS.2295/10 are referred to as plaintiffs and the
defendant in OS.No.1429/08 and the plaintiffs in
OS.No.2295/10 are referred to as the defendants unless they
are referred separately.
5. On these pleadings, my learned predecessor has
framed the following issues and additional issues:-
Issues in OS.No.1429/2008:
1) Whether the plaintiffs prove their joint
possession and enjoyment of the suit
schedule lands as on the date of the suit?
2) Whether the plaintiffs prove the
interference as alleged?
3) Whether the suit in the present form is not
maintainable?
4) Whether the suit without the relief of
declaration is not maintainable?
5) Whether the court fee paid is not proper ?
6) Whether the plaintiffs are entitled for reliefs
of permanent injunction as prayed for?
7) What order or decree?
18 O.S.No.1429/2008 & 2295/2010
Issues in OS.No.2295/2010:
1) Whether plaintiff proves that they are in
peaceful possession and enjoyment of the
suit property as absolute owners?
2) Whether plaintiffs prove that the
defendants have put up temporary super
structure/sheds on suit property illegally?
3) Whether plaintiffs prove that the
defendants are illegally interfering in their
peaceful possession and enjoyment of the
suit property?
4) Whether plaintiffs prove that the
defendants are liable to remove the said
super structure/sheds from suit property?
5) Whether defendants prove that the court
fee paid is not proper?
6) Whether the suit is barred by limitation?
7) Whether plaintiffs are entitled for reliefs
sought for?
8) What order or decree?
Additional Issues in OS.2295/10:
1) Whether the plaintiffs prove that during the
pendency of suit and M.F.A., the
defendants have illegally dispossessed him
in respect of 4 acres 13 guntas of land and
started put up construction over it?
2) Whether the plaintiffs prove that since the
defendants have put up construction over 4
acres and 13 guntas of land during the
pendency of suit, they are entitled to
19 O.S.No.1429/2008 & 2295/2010
recover the possession of that land after
removal of the alleged construction over it?
3) Whether the defendant No.1 proves that the
suit property is a converted land to non-
agricultural purpose and thereby the
plaintiffs shall pay the additional court fee
on the market value for the additional
reliefs prayed?
4) Whether the plaintiffs are entitled for
mandatory injunction for removal of
structure constructed by defendant No.1 on
the 4 acres 13 guntas of land and for
recovery of possession of that land?
6. In support of the plaintiff's case, the plaintiff No.2 of
OS.1429/08 is examined as P.W.1 and documents are marked
at Ex.P1 to P96. The defendant of OS.1429/08 has given
evidence as DW.1 and documents for the defendants are
marked at Ex.D1 to D28.
7. Heard the arguments. Counsel for the plaintiffs in
OS.1429/08 has filed written arguments also.
8. My answer to the above issues are as under:-
In OS.No.1429/08:
Issue No.1: In the Affirmative
Issue No.2: In the Affirmative
Issue No.3: In the Negative
Issue No.4: In the Negative
20 O.S.No.1429/2008 & 2295/2010
Issue No.5: In the Negative
Issue No.6: In the Affirmative
Issue No.7: As per final order
In OS.No.2295/10:
Issue No.1: In the Negative
Issue No.2: In the Negative
Issue No.3: In the Negative
Issue No.4: In the Negative
Issue No.5: In the Negative
Issue No.6: In the Negative
Issue No.7: In the Negative
Addl. Issue No.1: In the Negative
Addl. Issue No.2: In the Negative
Addl. Issue No.3: In the Negative
Addl. Issue No.4: In the Negative
Issue No.8: As per final order, for the following:
REASONS
9. Issue Nos.1 and 2 in OS.1429/08 and Issue No.1
to 3 in OS.2295/10:- As all these issues are inter linked with
each other, they are taken together for discussion to avoid
repetition.
10. The case of the plaintiffs in OS.1429/08 and the
defendants in OS.2295/10 is that the suit property measuring 4
acres 13 guntas is belonged to the plaintiffs in OS.1429/08 and
21 O.S.No.1429/2008 & 2295/2010
they are in possession and enjoyment of the same and the
defendant is interfering in such possession. The suit in
OS.1429/08 is one for permanent injunction. The defendants in
OS.1429/08 along with his brother and children of his deceased
brother, has filed OS.No.2295/10 for declaration of title and for
possession and permanent injunction in respect of Sy.No.83
[present Sy.No.83/1 and 83/2] measuring 7 acres 15 guntas
out of 8 acres 31 guntas of Mallasandra village on the ground
that the property measuring 8 acres 31 guntas in Sy.No.83 is
their ancestral property and it has been purchased by their
ancestors by sale deed of the year 1916 and they are the owners
and are in possession of the property and the defendants are
interfering in such possession and during the pendency of the
suit, they have even made permanent structure in the suit
property.
11. The plaintiff No.2 in OS.1429/08 has given evidence
as P.W.1. In his chief evidence, he has stated the contentions of
the plaint in OS.1429/08 and the contentions of the defendants
in OS.2295/10. In the cross-examinatiion, the witness has
stated that Hafeez Khan is his grandfather and he purchased
the landed properties in Sy.No.8. He has stated that the land
22 O.S.No.1429/2008 & 2295/2010
Sy.No.8 was given new survey number as 83 by a gazette in the
year 1959. He has stated that originals of Ex.P40, 41 and 45 are
deposited in the bank and he has produced the certified copies.
He has stated that the rectification deed was executed to show
new Sy.No.83 in place of old Sy.No.8. He has admitted that RRT
proceedings were pending before the Tahsildar when the suit in
OS.1429/08 was filed. He has stated that he is not aware
whether there was any stay order. He has admitted that from
the year 2004, the defendant is claiming that he is the owner of
the property in Sy.No.83 on the strength of old documents
pertaining to his ancestors. He has stated that as on the date of
suit in OS.1429/08, the suit property was not a vacant land
and there was shed and it was a permanent structure. He has
admitted that statusquo order passed in OS.1429/08 is still in
force. He has stated that he has not filed any application for
cancellation of the statusquo order or to permit him to proceed
with the construction. He has stated that he has obtained
sanctioned plan and license from the BBMP for construction. He
has admitted that a notice was given by the BBMP as to why the
license and plan should not be cancelled and it is stated that
the notice was given on the objection filed by the defendant. He
23 O.S.No.1429/2008 & 2295/2010
has stated that the construction of the building is started
through joint venture from the beginning. He has admitted that
the contractors of the joint venture is also aware of the
pendency of this suit. He has stated that on the western side of
the property, there is Hesaraghatta road and on the northern
side, it is Chikksandra village and in the sale deed it is
mentioned as pipeline road and he has stated that the pipeline
is parallel to Hesaraghatta road and therefore, it is called as
pipeline road. He has admitted that eastern side of Sy.No.8 is
mentioned as property in Sy.No.7 and in the plaint, eastern
boundary is shown as Sy.No.84. It is stated that Sy.No.7 has
become Sy.No.84 after the regrant. He has denied that created
documents are produced. He has admitted that for the property
purchased by his grandfather measuring 3 ½ acres, the eastern
boundary was the remaining property of the vendors and has
stated that survey number assigned for the property retained by
the vendor is Sy.No.84. He has admitted that the plaintiffs in
OS.2295/10 have sought the relief in respect of Sy.No.83, but
has stated that the boundaries mentioned by the plaintiffs in
the suit is false and the schedule is true and correct. He has
stated that eastern boundary in Sy.NO.83 is Hesaraghatta road.
24 O.S.No.1429/2008 & 2295/2010
He has admitted that the forefathers of the plaintiffs in
OS.2295/10 have purchased Sy.No.83, 5/1 and 80/1 of
Mallasandra village by registered sale deed of 1916. He has
denied that the plaintiffs have retained Sy.No.83. He has stated
that Sy.No.83 is now given number as Sy.No.77 and it is having
extent as 3 acres. He has denied that Sy.No.83 was existing
from the beginning and it is existing as it is and he has also
denied that Sy.No.8 is not given number as 83 as contended.
12. The plaintiffs have produced voluminous documents
at Ex.P1 to P96. The notice for conversion of the land and
challan for payment of the amount for conversion of the land in
the year 1955 in respect of portion of Sy.No.8 by grandfather of
the plaintiffs are produced as Ex.P1 and P2. The certified copy
of the order of the Special Deputy Commissioner for Inam
Abolition is produced as Ex.P3 in which it is stated that
occupancy right in respect of 3 acres 38 guntas in Sy.No.83 has
is granted to M.A.Hafeez Khan. The revenue documents, survey
sketch in respect of Sy.No.83 and Sy.No.83/1 and 83/2 are all
produced as Ex.P4 to P7. The RTC of Sy.No.83 for 3 acres 38
guntas from the year 1977-78 till 2010-11 are produced as
Ex.P8 to 18. Sy.No.83 is subsequently phoded as Sy.No.83/1
25 O.S.No.1429/2008 & 2295/2010
and 83/2 and RTC of Sy.No.83/1 and 83/2 standing in the
names of the plaintiffs is also produced by the plaintiffs. The
partition deed between the plaintiffs dated 18.3.2006 is
produced as Ex.P19. The tax paid receipts in respect of
Sy.No.83 are produced as Ex.P20 to P22. The letter of Bangalore
Development Authority and notice of Bangalore Development
Authority to pay the amount for conversion of the land given in
2006 and copy of the challan are produced as Ex.P23 to 25. The
copy of the complaint and charge sheet filed and FIR are
produced as Ex.P26 to P28. the certificate issued by the BMP in
respect of Khatha No.2 in favour of the plaintiffs is marked as
Ex.P29. Copy of the house and vacant site registered
maintained by BMP is produced as Ex.P30. These documents
are produced to show that the suit property is non-agricultural
land and it is standing in the name of the plaintiffs. The order of
the Special Tahsildar on the application of the defendant and
order of the Assistant Commissioner in the appeal, order of the
Special Deputy Commissioner in the revision petition are all
produced as Ex.P31 to P33. By these orders, the request of the
defendant to enter his name to Sy.No.83 has been rejected and
that has been up held in appeal and revision. The property tax
26 O.S.No.1429/2008 & 2295/2010
receipts in respect of sy.No.83/1 and 83/2 paid by Shakira
Begum and other is produced as Ex.P34. Some photographs
and C.D. showing the construction in the suit property taken in
2011 are produced as Ex.P35 to 39. The sanction plan for
construction of the building in this property is marked as
Ex.P40. Ex.P41 and 42 are the sale deeds by which the
grandfather of the plaintiffs has purchased the property
Sy.No.8. Ex.P43 to 46 are the subsequent documents in respect
of these properties by which the subsequent alienation have
been made. The genealogical tree is produced as Ex.P47. The
certified copy of the MR.No.5/2005-06 and RTC are produced as
Ex.P48 to P54. Copy of the application given by Bylappa S/o
Venkata i.e., the father of the defendant under Inam Abolition
Act seeking occupancy right in respect of 1 acre 33 guntas in
Sy.No.5, 30 guntas in Sy.No.80 and 4 acres 15 ½ guntas in
Sy.No.83 is produced as Ex.P55. In this document, on the back
page, there is endorsement showing as to what is the present
Survey number given to this Sy.No.5, 80 and 83 and new survey
numbers are 79/1, 79/3, 77, 80/1 and 80/3. The order passed
by the Special Deputy Commissioner of Inam Abolition on the
application of father of the defendant Bylappa S/o Venkata is
27 O.S.No.1429/2008 & 2295/2010
produced as Ex.P56, in which the property in Sy.No.79/1, 79/3,
77, 80/1, 78/7 and 80/3 are given occupancy right to this
Bylappa S/o Venkata who is father of the defendant. The extent
of the property granted is also mentioned therein. The phodi
sketch of Sy.No.83/1 and 83/2 are produced as Ex.P57 to 59.
Ex.P60 to P70 are the documents showing that the suit was
filed by one Dadappanavara Muneppa against the children of
Kaniyara Honna in OS.90/1939-40 for recovery and in the said
suit, the decree has been passed and amount is recovered by
sale of half of hypothecated properties including Sy.No.83
measuring 8 acres 31 guntas. These documents produced to
show that out of 8 acres 31 guntas in Sy.No.83, half of the
property has been sold in execution in the said suit which was
filed against the sons of Kaniyara Honna including grandfather
of the defendant. The plaintiffs have also produced the copy of
the Form No.8 given under Inam Abolition Act, in which the
property granted to Bylappa S/o Venkata in Sy.No. 79/1, 79/3,
77, 80/1, 78/7 and 80/3, is appearing. In the same document,
the grant of Sy.No.83 to M.A.Hafeez Khan measuring 3 acres 38
guntas is also shown. This is the copy of register No.8
maintained under section 11. The certified copy of the sale deed
28 O.S.No.1429/2008 & 2295/2010
in respect of portion of the property in Sy.No.80/1 and 80/3 are
produced as Ex.P72 to 74. This is produced to show that the
family of the defendant had sold the property in respect of
which occupancy rights has been granted under Inam Abolition
Act. The RTC of Sy.No.80/1 are produced as Ex.P75 to P84
which show that the property granted to the father of the
defendant in Sy.No.80/1 has been sold by them and the
purchasers' name is entered. The copy of the sale deeds dated
21.3.2001 in respect of Sy.No.80/1 are produced as Ex.P85 to
P87. The copy of the order passed under Inam Abolition Act is
produced as Ex.P89. The endorsement is marked as Ex.P90 and
the village map is marked as Ex.P91. Tippani copy of Sy.No.83
dated 8.2.1958 is produced as Ex.P92 and that of Sy.No.8 is
produced as Ex.P93 and Sy.No.5 is produced as Ex.P94 and
Sy.No.80 is produced as Ex.P95 and Sy.No.83 of Byla S/o
Venkata is produced as Ex.P96.
13. The defendant in OS.No.1429/08 who is plaintiff
No.2 in OS.2295/10 has given evidence as DW.1 and stated his
contentions that, his forefathers have purchased 8 acres 31
guntas in Sy.No.83 along with other properties and the suit
property belongs to them. In the cross-examination, he has
29 O.S.No.1429/2008 & 2295/2010
admitted that Jodi-Mallasandra village is a jodi village and also
admitted that the suit property is standing in the name of the
plaintiffs. He has stated that to the property purchased by his
grandfather on the eastern side there is Sy.No.84 and on the
western side, Hesaraghatta main road, on northern side
Chikkasandra and on the southern side Sy.No.82. He has
admitted that Sy.No.83/1 and 83/2 are together having an
extent of 4 acres 13 guntas and it is now converted land and
comes under BBMP. He has denied that in respect of remaining
4 acres 18 guntas, he has not produced any documents. He has
admitted that his great grandfather Kaniyappa had a son by
name Venkatappa. He has stated that after the death of his
great grandfather, his father had not filed any application for
regrant of the land. He has denied the filing of the case for
recovery against his grandfather and his brothers in
OS.No.90/1939-40 and has denied that in respect of Sy.No.83,
order has been passed in the said suit. He has also denied that
half of Sy.No.83 has been sold in execution of the decree passed
in the said suit. He has denied that to Sy.No.5/1 and 80/1, new
survey numbers have been given after regrant. He has denied
that after Sy.No.83 has been given number as 80/1A and
30 O.S.No.1429/2008 & 2295/2010
80/1C and out of that Bylappa has sold 20 guntas to
Basavarajappa and Sy.No.80/1A and 80/1C have been sold to
Rangaswamy and Narayana and the purchasers have
constructed Janapriya Apartment. He has denied that half of
the property in Sy.No.83 has been sold in auction in execution
of the decree and remaining property has been sold by their
ancestors and there is no property left in Sy.No.83 belonging to
the defendant. He has admitted that the cases filed before the
Tahsildar, Special Deputy Commissioner and before the Hon'ble
High Court have been dismissed. He has denied that Sy.No.83
has been given new number as 80/1 and 80/2 and they have
sold the said property and there is no property left to them. He
has admitted that in 4 acres 13 guntas, the plaintiffs are
constructing the apartment. He has denied that he has not
produced any documents to show his possession of 7 acres 15
guntas of land. He has denied that Sy.No.5/1 and Sy.No.80
have been regranted to his father. He has denied that regrant is
not questioned by the defendants.
14. The defendants have produced the documents at
Ex.D1 to D28. The certified copy of the order passed in writ
petition filed by the defendants is marked as Ex.D1. The
31 O.S.No.1429/2008 & 2295/2010
certified copy of the sale deed and certified copy of the mortgage
deed are produced as Ex.D2 and 3. By Ex.D2 sale deed, the
forefathers of the defendant have purchased the Sy.No.83 along
with other properties. The certified copy of the order sheet of the
revenue appeal, endorsement issued by the Tahsildar, RTC of
Sy.No.80/1, 83/1 and 83/2 are produced as Ex.D4 to 8. The
copy of the joint development agreement, encumbrance
certificate are produced as Ex.D9 and D10. The certified copy of
the sale deeds of the year 1940, 1941 and 1943 which are
earlier sale deeds of vendors of the plaintiffs, are produced as
Ex.D11 to 13. The certified copy of the order in OS.6422/14 and
order sheet in the said suit and copy of the writ petition are
marked as Ex.D14 to D21. Photographs along with CD are
marked as Ex.D22 to 26. The application given under RTI and
endorsement given stating that Sy.No.8 is not changed as
Sy.No.83 in the original records is produced as Ex.D27 and
D28.
15. On looking to the pleadings, evidence and the
documents produced by the parties, the suit of the plaintiffs in
OS.1429/08 is one for permanent injunction on the ground that
the plaintiffs are in possession and enjoyment of the suit
32 O.S.No.1429/2008 & 2295/2010
property and the defendant is interfering in such possession.
The suit property in OS.No.1429/08 is measuring 3 acres 38
guntas and 15 guntas kharab, in total comes to 4 acres 13
guntas and stated to be situated in Sy.No.83/1 and 83/2. It is
also stated that this property was earlier having number as
Sy.No.8 and it was purchased by the grandfather of the
plaintiffs by name M.A.Hafeez Khan by two sale deeds dated
28.1.1952 and 10.5.1954 copy of which are produced as Ex.P41
and 42. In Ex.P41 and 42, the property purchased by Hafeez
Khan is mentioned as Sy.No.8. In the sale deed of 1954 at
Ex.P42, 20 guntas has been sold and in the sale deed of 1952, 3
acres 08 guntas has been sold. Therefore, by Ex.P41 and P42
sale deeds, Hafeez Khan has purchased 3 acres 28 guntas. After
the death of Hafeez Khan, the property came to his wife and
children and wife and daughters of Hafeez Khan have sold their
share in favour of two sons by executing sale deed as per
Ex.P43 and the one son of Hafeez Khan has even executed a
sale deed in respect of his half share in favour of his wife and
his another brother has executed release deed in his favour and
that has been rectified by another rectification deed of 1974. All
these documents showing the Sy.No.8 measuring 3 acres 28
33 O.S.No.1429/2008 & 2295/2010
guntas in Jodi Mallasandra village was purchased by the
grandfather of the plaintiffs of OS.1429/08 and then after his
death, it came to his heirs through various registered
documents. The property came to the parents of the plaintiffs
and these documents are at Ex.P41 to 46. Ex.P47 is the
genealogical tree which show the relationship of the plaintiffs
and Hafeez Khan. After the death of their parents, the plaintiffs
have got partitioned the property and partition deed is also
executed on 18.3.2006 and the partition deed is marked as
Ex.P19. 31 guntas is said to have been given by oral gift to the
plaintiff No.2 by his mother. In short, the documents produced
by the plaintiffs which are the certified copy of various sale
deeds, release deed, rectification deed, partition deed etc., show
that Sy.No.8 measuring 3 acres 28 guntas was purchased by
M.A.Hafeez Khan and by virtue of various documents referred
above, it came to the plaintiffs.
16. According to the plaintiffs, this Sy.no.8 is changed
as Sy.No.83 while granting occupancy right on the application
given by M.A.Hafeez Khan to the Special Deputy Commissioner
for Inam Abolition. The said order is produced as Ex.P3. In this
order, it is mentioned that occupancy right in respect of 3 acres
34 O.S.No.1429/2008 & 2295/2010
38 guntas in Sy.No.83 has been given to M.A.Hafeez Khan and
this is dated 9.7.1961 and Case number is mentioned as
86/1959-60. This document is seriously disputed by the
defendants who are the plaintiffs in OS.2295/10. For the first
time, the Sy.No.83 is entered in the name of M.A.Hafeez Khan in
Ex.P3. P.W.1 in his cross-examination has stated that Ex.P3 is
not a complete document and there was an endorsement which
is missing. However, the subsequent revenue documents
produced at Ex.P4 to P7 and the RTC at Ex.P8 to P18 show that
Sy.No.83 of Mallasandra village is standing in the name of
Hafeez Khan and his heirs from 1977-78 and the documents
also show that this has been phoded as Sy.No.83/1 and 83/2
and Sy.No.83/1 is given extent as 2 acres 8 guntas and
Sy.No.83/2 is given extent as 2 acres 5 guntas. Some tax paid
receipts in respect of Sy.No.83 paid by H.Ahmed Ali Khan and
Sayeeda Banu is produced as Ex.P20. This tax paid receipt is of
the year 1995 and tax is paid in respect of Sy.No.83. Again in
respect of Sy.No.83/1 and 83/2, tax paid receipts which are of
the year 2004 are produced as Ex.P21 and that of the year 2005
is produced as Ex.P22. The plaintiffs have even produced the
copy of the letter given by B.D.A. for payment of conversion
35 O.S.No.1429/2008 & 2295/2010
charges on the application of the plaintiffs given on 6.1.2005.
The plaintiffs were asked to pay Rs.3,27,710/- in Ex.P25 letter
and the plaintiffs have paid this amount in Ex.P23 challan. This
is of the year 2005. These documents are produced with regard
to the plaintiffs' possession and enjoyment of the suit property
measuring 3 acres 38 guntas. The documents produced show
that Sy.No.8 measuring 3 acres 28 guntas was purchased by
Hafeez Khan and after his death, his heirs have succeeded to
the property and even during his life time, Hafeez Khan had
applied for conversion of portion of the land measuring 5 guntas
and that has been accepted on payment of amount and the
notice of conversion and the challan for paying the amount is
also produced as Ex.P1 and P2.
17. Now, the only question as far as title of the plaintiffs
to the property is whether Sy.No.8 is renumbered as Sy.No.83.
The description of the suit property in both the suits is not in
dispute. The defendant who is also the plaintiff in OS.2295/10
along with his brothers and brother's children is not disputing
the identity of the property. According to them, the property
within the boundaries mentioned in the plaint of OS.1429/08 is
in Sy.No.83 and it is not belonging to the plaintiffs. The
36 O.S.No.1429/2008 & 2295/2010
documents produced by the plaintiffs and the admissions of
DW.1 in the cross-examination, clearly show that the plaintiffs
are in possession of the said property which is now in
Sy.No.83/1 and 83/2. Several orders passed in the RRT
proceedings produced by the parties at Ex.p31 to P33 also show
that the property is in possession of the plaintiffs. Some
photographs are also produced to show that the construction is
undertaken in the property and apartments are also coming up
there. Similarly, even DW.1 who is the defendant in
OS.1429/08 has admitted in his cross-examination that the
suit property is now standing in the name of Shakira Begum
and others i.e., plaintiffs. He has even admitted that this
property is now converted land and is given number as
Sy.No.83/1 and 83/2 and its total extent is 4 acres 13 guntas
and it comes under BBMP. It is even admitted by DW.1 in his
cross-examination that the plaintiffs are constructing the
apartment in 4 acres 13 guntas in Sy.No.83/1 and 83/2.
Therefore, the construction undertaken by the plaintiffs in 4
acres 13 guntas of land which is the suit property of
OS.No.1429/08 is even admitted by the defendant. Even the
defendants by amending their plaint in OS.2295/10 have
37 O.S.No.1429/2008 & 2295/2010
sought for the relief of vacant possession. Though the plaintiffs
have stated that during the pendency of the suit, the defendants
have started to make construction in the property by violating
the statusquo order passed in OS.1429/08, the possession of
the suit property with the plaintiffs is even appearing from the
revenue records.
18. The suit in OS.No.2295/10 is one for declaration of
ownership and for other reliefs like permanent injunction,
vacant possession etc. Among two suits, OS.2295/10 is for a
greater relief of declaration of title and OS.1429/08 is for
limited relief of permanent injunction. As the suit in
OS.2295/10 is one for declaration of title, it is an exhaustive
suit deciding the rights of the defendants who are the plaintiffs
in OS.No.2295/10. Therefore, the defendants must establish
their title to the suit property in OS.2295/10, as they have
claimed the relief of declaration of their title to the property. It is
pertinent to note that, in OS.2295/10 the relief is not only in
respect of 4 acres 13 guntas which is claimed by the plaintiffs in
OS.1429/08, but the relief claimed by the plaintiffs in
OS.2295/10 is in respect of 7 acres 15 guntas of land in
Sy.No.83, now renumbered as Sy.No.83/1 and 83/2. In the
38 O.S.No.1429/2008 & 2295/2010
plaint schedule, the description is given as Sy.No.83 present
Sy.No.83/1 and 83/2 measuring 7 acres 15 guntas out of 8
acres 31 guntas situated at Mallasandra village within the
boundaries mentioned therein. Therefore, the defendants who
are the plaintiffs in OS.No.2295/10 are seeking the relief in
respect of 7 acres 15 guntas in Sy.No.83 which is out of 8 acres
31 guntas according to them.
19. The plaintiffs claim in OS.No.1429/08 is restricted
only for 4 acres 13 guntas. The RTC produced by the plaintiffs
at Ex.P13 to 18 show that Sy.No.83/1 is measuring 2 acres 8
guntas and Sy.No.83/2 is measuring 2 acres 5 guntas, the total
of these two phoded lands would come to 4 acres 13 guntas
only. Whereas, the claim of the ownership by the plaintiffs in
OS.2295/10 is for 7 acres 15 guntas and that too out of 8 acres
31 guntas in Sy.No.83. In this connection, to establish their
ownership, this defendant along with his brothers and brother's
children, has relied on the sale deed of his great grandfather
which is dated 11.2.1916, copy of the sale deed is marked as
Ex.D2. In Ex.D2, the great grandfather of the defendant i.e.,
plaintiffs in OS.No.2295/10 by name Kaniyappa has purchased
3 acres 26 guntas in Sy.No.5/1, 1 acre 26 guntas in Sy.No.80/1
39 O.S.No.1429/2008 & 2295/2010
and 8 acres 31 guntas in Sy.No.83. Ex.D3 is the copy of the
mortgage deed. This mortgage deed was executed by
grandfather of the defendant by name Venkata and others on
10.9.1924 in favour of Mudda Hanumappa by mortgaging the
property including this Sy.No.83. This document is produced to
show that the property is enjoyed by the family by ownership
right over the property.
20. The defendant has also produced the copy of the
proceedings before the Assistant Commissioner and an
endorsement of the year 2010 and the RTC of Sy.No.80/1
measuring 3 acres 11 guntas as Ex.D6 and recent RTC of
Sy.No.83/1 and 83/2 which are marked as Ex.D7 and D8. He
has produced development agreement, encumbrance certificate
which are between the plaintiffs and the earlier title deeds of the
vendors of forefathers of the plaintiffs which are marked at
Ex.D11 to D13. The other documents produced by the
defendant are the subsequent documents to show that the
builder i.e., defendant No.13 of OS.2295/10 has even filed a
Writ petition and filed some suits against the BBMP etc., which
are subsequent events.
40 O.S.No.1429/2008 & 2295/2010
21. On considering the documents produced by the
defendant who is seeking the relief of declaration of title in
OS.2295/10 to the property measuring 7 acres 15 guntas in
Sy.No.83 Ex.D2 sale deed of his great grandfather of the year
1916 and mortgage deed executed by his grandfather in the
year 1924 are only two document connected to title to the
property. Absolutely, no other materials are produced by the
defendant to show that his forefathers had enjoyed this property
in Sy.No.83 measuring 8 acres 31 guntas and property has
come to the grandfather and then to father and then to the
plaintiffs as contended in OS.2295/10. Ex.D2 sale deed of the
year 1916 show that Sy.No.83 is measuring 8 acres 31 guntas.
According to the plaintiffs in OS.2295/10, out of 8 acres 31
guntas, 30 guntas has been given by his brother to some third
parties for construction of the houses. It is also stated in the
plaint in OS.2295/10 that the government has acquired about
15 guntas of land for drawing High Tension wire for electricity
supply on its western side. But there are no documents
produced to show that 30 guntas has been given by brother of
the defendant to third parties and 15 guntas has been acquired
by the government for drawing high tension wire for electricity
41 O.S.No.1429/2008 & 2295/2010
supply and that 7 acres 15 guntas has remained to the
defendant, as contended. Absolutely, no materials are produced
to show that Sy.No.83 is having an extent of 8 acres 31 guntas
or 7 acres 15 guntas as contended by the defendant. Only on
the basis of Ex.D2 sale deed and on the basis of mortgage deed
Ex.D3 which are of the year 1916 and 1924 respectively, the
ownership to 8 acres 31 guntas by the forefathers of the
defendant and then the ownership of the defendant and his
continuous enjoyment and subsequent alienation of 30 guntas
to the third parties, acquisition of 15 guntas by the government
in this property and the possession and enjoyment and
ownership of the defendant and his family members to an
extent of 7 acres 15 guntas does not get established.
22. The entire document produced by the defendants are
to find fault in the case of the plaintiffs. But the case of the
plaintiffs in OS.1429/08 is for a limited relief of permanent
injunction. Their possession of the suit property as on today is
even admitted by DW.1 in his cross-examination and he has
even produced the joint development agreement. Even the
documents produced by the plaintiffs like RTC show that from
1977-78 name of the plaintiffs and their ancestors is appearing
42 O.S.No.1429/2008 & 2295/2010
in the RTC in respect of 4 acres 13 guntas. Absolutely, no
documents are before the court to show that Sy.No.83 is having
either the extent of 8 acres 31 guntas or 7 acres 15 guntas as
contended by the defendant Venkatesh and his brothers in
OS.2295/10.
23. The defendant's case is only denial of the plaintiffs'
case in OS.No.1429/08. Though this defendant has filed the
comprehensive suit for declaration and injunction and
possession in OS.2295/10, the documents produced at Ex.D1
to D28 does not show the passing of title and possession to the
plaintiffs of OS.2295/10 subsequent to 1924. DW.1 in his
cross-examination, has stated that his grandfather had not
given any application for grant of occupancy right under Inam
Abolition Act. The plaintiffs in OS.1429/08 have produced
several documents to show that survey numbers in Jodi
Mallasandra village have been renumbered while granting the
lands as per the provisions of Mysore [Personnel and
Miscellaneous] Inam Abolition Act. The plaintiffs have
contended that though the Sy.No.83 was purchased by
Kaniyappa, the great grandfather of the defendant in 1916 as
per Ex.D2 sale deed, subsequently, there was a suit filed
43 O.S.No.1429/2008 & 2295/2010
against the grandfather of the defendant and his brothers for
recovery of amount in OS.90/1939-40 and half portion of the
property purchased by Kaniyappa have been sold in court
auction. The copy of the order sheet of OS.90/1939-40 and the
plaint, judgment and the execution petition in Ex.771/1942-43
and the sale certificate, notice, receipt etc., are produced at
Ex.P60 to P70. These documents prima facie show that the suit
was filed against Poojiga, Mota @ Hanumantha and Venkata
sons of Kaniyara Honna for recovery by sale of hypothecated
properties. The hypothecated properties include Sy.No.83
measuring 8 acres 31 guntas. The defendant No.3 Venkata in
the said suit is the grandfather of the defendant in OS.1429/08.
In the said suit and the E.P. half share has been sold to one
M.S.Ramachandra Rao. Though the defendant in his evidence
when confronted with the documents, has denied the sale of
half of Sy.No.83 measuring 8 acres 31 guntas in execution
petition, the documents at Ex.P60 to P70 clearly show that the
property was sold as per the decree passed in the court and the
property was sold in Ex.771/1942-43 and one
M.S.Ramachandra has purchased the half of the property. In
Ex.P68 it is clearly stated that sale is confirmed. One
44 O.S.No.1429/2008 & 2295/2010
M.S.Ramachandra has purchased the half share in item Nos.1
to 3 property in which item No.3 is 8 acres 31 guntas of
Sy.No.83. This was done in 1944.
24. Though the defendant who is claiming the relief of
declaration of title has not produced any documents of suit
property subsequent to 1924, Ex.P60 to P70 produced by the
plaintiff clearly show that out of 8 acres 31 guntas in Sy.No.83,
half of the property has been sold in court auction in execution
petition. Though the defendant disputes these documents, there
is no such evidence placed by the defendant to substantiate his
contentions and his case is based only on Ex.D2 sale deed of
the year 1916 and it is not supported by any other subsequent
documents except Ex.D3 which is again of the year 1924.
25. The plaintiffs are even contending that in this half
portion which remained in Sy.No.83 and other survey numbers,
under the Mysore [Personnel and Miscellaneous] Inam Abolition
Act, application was given by Byla i.e., father of the defendant
seeking occupancy right by showing 4 acres 15 ½ guntas in
Sy.No.83, 30 guntas in Sy.No.80 and 1 acre 33 guntas in
Sy.No.5/1. This document is produced at Ex.P55. This Ex.P55
45 O.S.No.1429/2008 & 2295/2010
is the application for grant of occupancy right under Mysore
[Personnel and Miscellaneous] Inam Abolition Act. On the basis
of Ex.P55, it an be considered that though 8 acres 31 guntas
was purchased by great grandfather of the defendant namely
Kaniya by Ex.D2 sale deed, half of the property in Sy.Nos.5/1,
80 and 83 have gone in court auction as per Ex.P60 to P70. Out
of 3 acres 26 guntas in Sy.No.5/1 and out of 1 acre 20 guntas
in Sy.No.80 and out of 8 acres 31 guntas in Sy.No.83, half
portion appears to have gone in court auction and only half
portion remained to the family of the forefathers of the
defendant and therefore, it appears that in Ex.P55, application
is filed for this half portion in Sy.No.5/1 which comes to 1 acre
33 guntas and half portion in Sy.No.80 which comes to 30
guntas and half portion in Sy.No.83 which comes to 4 acres 15
½ guntas seeking occupancy right by grandfather of the present
defendant by name Bylappa S/o Venkata. This Ex.P55 along
with Ex.P60 to P70 makes it clear that half of the property
purchased in 1916 sale deed has gone in court auction and in
respect of remaining half portion in Case No.43/59-60, an
application was given for grant of occupancy right by Bylappa
S/o Venkata. The defendant is either not aware of these facts or
46 O.S.No.1429/2008 & 2295/2010
has suppressed the facts, as in his cross-examination, he has
denied the giving of any application for grant. This application
Ex.P55 is given in 1952 and on the back side of it, it is
mentioned that survey numbers as per the application is 5, 80
and 83, but new survey numbers are Sy.No.79/1, 79/3, 77,
80/1 and 80/3.
26. The order in Case No.43/59-60 is also produced as
Ex.P56 which clearly show that as per Ex.P55 though
application was given for grant of occupancy right in respect of
sy.No.5, 80, and 83, the occupancy right has been given in
respect of new Sy.No.79/1 to the extent of 20 guntas,
Sy.No.79/3 to an extent of 36 guntas, Sy.No.77 to an extent of
30 guntas, Sy.No.80/1 to an extent of 3 acres 11 guntas,
Sy.No.78/7 to an extent of 12 guntas and Sy.No.80/3 to an
extent of 5 guntas. Though the forefathers of the defendant had
applied for grant of occupancy rights in respect of Sy.No.5, 80
and 83 as per Ex.P55, the occupancy right has been granted in
new survey numbers shown as Sy.Nos. 79/1, 79/3, 77, 80/1,
78/7 and 80/3 as per Ex.P56. Corresponding to this, in Form
No.8 of section 11, the register showing the details of
assessment payable to government by kadim, permanent,
47 O.S.No.1429/2008 & 2295/2010
quasi-permanent and Minor Inamdar etc., in No.43, name of
Bylappa S/o Venkata i.e., grandfather of the defendant is shown
to the property which is even appearing in Ex.P56. Therefore, by
Ex.P55, 56 and P71, it is clear that Sy.No.83 measuring 4 acres
15 guntas was remaining with the defendant's family and for
that application was given for grant of occupancy right. But the
occupancy right was granted in Sy.No.80/1 and 80/3 and even
Sy.No.5 and 80 have been changed as Sy.No.79/1 and 79/3
and 77. In Ex.P71 even the grant of 3 acres 38 guntas in
Sy.No.83 to M.A.Hafeez Khan is appearing. Therefore, though
Ex.P3 has been disputed seriously by the defendant, Ex.P71
tallies with Ex.P3. Even Ex.P55 and P56 and also Ex.P60 to P70
if considered along with Ex.P71 and P3, makes it clear that
while granting occupancy right as per the provisions of Mysore
[Personnel & Miscellaneous] Inam Abolition Act, survey
numbers have been changed and M.A.Hafeez Khan is given
property in Sy.No.83 and the defendant's grandfather Bylappa
was given occupancy right in respect of Sy.Nos.79/1, 79/3, 77,
80/1, 78/7 and 80/3.
27. The defendant has produced the RTC of Sy.No.80/1
for 3 acres 11 guntas at Ex.D6 in which name of Bylappa S/o
48 O.S.No.1429/2008 & 2295/2010
Venkata i.e., father of the defendant is appearing. This is for the
year 1965-66. As per Ex.D2 sale deed, in Sy.No.80/1 great
grandfather of the defendant Kaniyappa had purchased only 1
acre 20 guntas. As per Ex.P60 to P70, out of this 1 acre 20
guntas, half portion has gone in auction sale, so remaining
extent in Sy.No.80/1 is only 30 guntas. But in Ex.D6 produced
by the defendant, the extent of Sy.No.80/1 is shown as 3 acres
11 guntas and it is standing in the name of father of the
defendant for the year 1965-66. Therefore, the contention of the
defendant that Sy.No.80/1 was belonging to the family of the
defendant on the basis of Ex.D2 sale deed and Sy.No.83 is not
given number as Sy.No.80/1, cannot be accepted, as in Ex.D2
the property purchased by great grandfather of defendant is 1
acre 20 guntas and out of that 30 guntas has gone in auction
sale and only remaining is 30 guntas, but in Ex.D6, the extent
is shown as 3 acres 11 guntas and that tallies with Ex.P56.
Therefore, Ex.P55 and P56, Ex.P3, Ex.D6 and Ex.P60 to P70
and also Ex.P71, makes it very clear that though Sy.No.83 was
purchased by great grandfather of the defendant and was
measuring 8 acres 31 guntas, out of that half has gone in court
auction sale and in the remaining half, he had applied for grant
49 O.S.No.1429/2008 & 2295/2010
of occupancy right under Mysore [Personnel & Miscellaneous]
Inam Abolition Act, as per Ex.P55 and the authorities have
given occupancy right in the resurvey number as per which
Sy.No.83 is not given to the father of the defendant, but he was
given Sy.No.80/1 and 80/3 along with Sy.No.79/1, 79/3, 77
and 78/7 and the land measuring 3 acres 11 guntas in
Sy.No.80/1 is entered in the name of Bylappa as per Ex.D6 RTC
and even they have sold this Sy.No.80/1 property by different
sale deeds at Ex.P72 to P74 in the year 1972 and the name of
the purchasers is also entered to this property as seen in
Ex.P75 to P84 and even there are subsequent sale deeds at
Ex.P85 to 87.
28. Though the defendant has disputed all these
documents which are produced by the plaintiffs, the case of the
defendant is not established by any other documents. When the
parties have given evidence and produced the documents and
when there are clear documents produced by the plaintiffs to
show that Sy.No.8 has become Sy.No.83 on grant of occupancy
right under the Mysore [Personnel & Miscellaneous] Inam
Abolition Act, and Sy.No.83 is given number as 83/1 and 83/2
and even the name of the forefathers of the plaintiffs was
50 O.S.No.1429/2008 & 2295/2010
entered in the RTC and other revenue records and when there
are no documents produced by the defendant to dispute all the
public records produced by the plaintiffs in this case, the
contention of the defendant that Sy.No.83 remained as it is and
they are the owners of Sy.No.83 measuring 8 acres 31 guntas
and that 7 acres 15 guntas is still in their ownership and
possession, is absolutely baseless. None of the documents
produced by the defendant show such ownership continued
with the defendant in respect of Sy.No.83 as on today.
29. The counsel for the defendant has drawn my
attention to the decision reported in AIR 1997 SC 2719
(Balwant singh and another Vs. Dawlath Singh dead by LRs.)
in which the Hon'ble Supreme Court has held that the entries in
revenue records do not convey or extinguish any title. In
another decision, reported in AIR 2007 S.C. 2577
[Ramachandra Tukaram Mahajan Vs. Damodar Triambak
Tunksale) in which on different facts, the Honb'el Supreme
Court has held that the title could not be decided by survey
records only. In the present case, the plaintiff's claim is not
based only on revenue records. The plaintiffs have even
produced title deeds, order granting the property to the
51 O.S.No.1429/2008 & 2295/2010
forefathers of the plaintiffs etc. Moreover, the plaintiffs' suit is
one for permanent injunction. The defendant who has claimed
right on the basis of the title deed of 1916, has failed to
establish his title and also possession. Hence, these decisions
do not help the defendant.
30. To sum up, materials produced show that by Ex.D2
sale deed great grandfather of the defendant has purchased 8
acres 31 guntas in Sy.No.83, his son had mortgaged the said
property by Ex.D3 mortgage deed and thereby exercised his
right over the property. Subsequently, by proceedings in Ex.P60
to P70, half portion of these properties purchased by Ex.D2 sale
deed, have been sold in auction by court and in respect of
remaining half portion of the property, the father of the
defendant had given application for grant of occupancy right as
per Ex.P55. Though application was given for grant of
occupancy right in respect of the property in Sy.No.5/1 to an
extent of 1 acre 33 guntas, in Sy.No.80 to an extent of 30
guntas and in Sy.No.83 to an extent of 4 acres 15 ½ guntas,
while granting the occupancy right, the Special Deputy
Commissioner for Inam Abolition, has passed an order as per
Ex.P56 and occupancy right is given to a total extent of 5 acres
52 O.S.No.1429/2008 & 2295/2010
34 guntas coming in Sy.No.79/1, 79/3, 77, 80/1, 78/7 and
80/3. Therefore, though occupancy right was sought in respect
of 6 acres 38 ½ guntas by Ex.P55, the occupancy right is
granted as per Ex.P56 for 5 acres 34 guntas and survey
numbers have been completely changed. Though Sy.No.80 is
appearing in the grant of occupancy rights also, the extent is 3
acres 11 guntas. Whereas, the application was only for 30
guntas and even in Ex.D6, 3 acres 11 guntas is standing in the
name of father of the defendant and they have even sold the
property by different sale deeds mentioned above. Hence, as per
the grant of occupancy right by Special Deputy Commissioner
for Inam Abolition as per Ex.P56, the defendant and his family
members have enjoyed the properties and with this order of the
Special Deputy Commissioner for Inam Abolition, the ownership
of the defendant's family to Sy.No.83 has come to an end.
Though there are no gazette notification is produced by the
plaintiffs to show that survey numbers have been changed and
new survey numbers have been given etc., the document at
Ex.P55 and other documents referred above, makes it very clear
that ownership of the defendant to Sy.No.83 is not continued
subsequent to grant of occupancy right and claim of occupancy
53 O.S.No.1429/2008 & 2295/2010
right in respect of Sy.No.83 has been considered, but the father
of the defendant has been granted property in different survey
numbers than what he had applied for. The defendant has not
made any efforts to dispute these documents except producing
an endorsement as per Ex.D5 stating that there is no INA
86/59-60 and an endorsement at Ex.D28 to the effect that as
per their records, Sy.No.8 has not changed in to Sy.No.83.
31. The learned counsel for the plaintiffs has drawn my
attention to the decision of the Hon'ble High Court reported in
2006(6) AIR Kar R 204 - P.Ramaiah Setty and others, in
which the Hon'ble High Court has held that:
"Order granting registration of occupancy rights when
attained finality under the said Act, cannot be re-agitated or
reopened before Civil Court as Inams Abolition Act is a self
contained code by itself."
When forefathers of the defendant have purchased only 1
acre 20 guntas in Sy.No.80/1 and they claim ownership of 3
acres 11 guntas as per Ex.D6, such claim is to be established
by the defendants and this claim can be made only on the basis
of the grant of occupancy right as per Ex.P56. Therefore, the
defendant cannot dispute the grant of 3 acres 11 guntas,
54 O.S.No.1429/2008 & 2295/2010
because even they have sold that property by subsequent sale
deeds in the year 1972. Even it is submitted by DW.1 in his
cross-examination that, in the portion sold by them in
Sy.No.80/1A and 80/1C, about 15 to 20 years back, Janapriya
Apartment has been constructed. The defendant has not
produced any materials to show that the grant of occupancy
right is not valid or the grant of occupancy right to this property
has been challenged by the family of the defendant etc. Under
such circumstances, the documents produced by the plaintiffs
clearly establish the claim of the plaintiffs that Sy.No.8 which
was purchased by M.A.Hafeez Khan was given number as 83 at
the time of grant of occupancy right as per Ex.P3 and Ex.P57
and extent is also shown as 3 acres 38 guntas and accordingly,
the revenue records are also changed in the name of the family
members of the plaintiffs and from various documents executed
in their family and also the partition deed, the suit property has
come to the plaintiffs of OS.1429/08. The documents produced
by the plaintiffs also show that they are in possession and
enjoyment of the said property. It is even seen in photographs
produced that apartments are come up in this property and
even DW.1 has admitted that construction has come up in
55 O.S.No.1429/2008 & 2295/2010
2010. Therefore, even possession of the plaintiffs of OS.1429/08
in the suit property is clearly admitted and established.
In a decision reported in ILR 1987 Kar 1466 -
Krishnamurthy Vs. Hemannna, it is held that:
"Adjudication by authorities under the Inams Abolition
Act, the civil court has no jurisdiction to entertain suit for
declaration of title and possession of lands vested to
government."
On coming into force of Inams Abolition Act, the entire
land vest with the government and only on grant of occupancy
right, the person can claim right over the property. Therefore,
the defendant cannot claim ownership to Sy.No.83, as according
to DW.1, his father has not applied for grant of occupancy right.
When the land is vested with the government, the defendant
cannot claim ownership over the property.
32. Though it is argued that it is the land excluded from
Inam Abolition Act, there are no such materials produced to
show that this land is excluded from application of Inam
Abolition Act. The documents produced by the plaintiffs in
OS.1429/08 clearly show that Sy.No.8 was purchased and then
portion of it was converted by Hafeez Khan and he had applied
56 O.S.No.1429/2008 & 2295/2010
for grant of occupancy right and the Special Deputy
Commissioner has granted occupancy right in respect of 3 acres
38 guntas in new Sy.No.83 and after the death of Hafeez Khan,
his LRs have succeeded to the property and then several
registered documents have been got executed and finally the
property has come to the plaintiffs by partition deed. The RTC is
standing in the name of the forefathers of the plaintiffs from
1977-78 and all the revenue records are existing in their names.
Therefore, by producing all these documents, the plaintiffs have
clearly established their joint possession and enjoyment of the
suit property as on the date of the suit and even subsequently.
The defendant in OS.No.1429/08 has claimed title to the
property on the basis of the sale deed of the year 1916, but the
documents produced by the plaintiffs and the evidence clearly
establish that Sy.No.83 of the year 1916 is not existing and it
has been given number as Sy.No.80/1 and 80/3 in the grant of
occupancy right by the Special Deputy Commissioner for Inam
Abolition as per Ex.P56. Therefore, the defendant without
having any right, title to the property has been interfering in
plaintiffs' possession and enjoyment of the suit property
measuring 3 acres 38 guntas in Sy.No.83/1 and 83/2.
57 O.S.No.1429/2008 & 2295/2010
33. The claim of the defendant is in ignorance of several
documents which are produced by the plaintiffs. The defendants
in OS.No.1429/08 who have filed OS.No.2295/10 for
declaration of their ownership to the property measuring 7
acres 15 guntas in Sy.No.83, have utterly failed to prove the
existence of the property measuring 7 acres 15 guntas in
Sy.No.83 at present and have not produced any documents to
show that this property totally measuring 8 acres 31 guntas is
existing and that 30 guntas has been given to third parties and
15 guntas is acquired by the government and 7 acres 15 guntas
is remaining under the ownership and possession of the
defendant and also his brothers and children of his brother who
are the plaintiffs in OS.2295/10. Thus, the defendant along
with other who are the plaintiffs in OS.2295/10 have utterly
failed to prove their possession and enjoyment of the suit
property as absolute owners and have also failed to prove that
the defendants have put up permanent structure illegally and
that the defendants in OS.No.2295/10 who are the plaintiffs in
OS.1429/08 are illegally interfering in peaceful possession and
enjoyment of the suit property measuring 7 acres 15 guntas as
contended. Accordingly, Issue No.1 and 2 in OS.No.1429/08 are
58 O.S.No.1429/2008 & 2295/2010
answered in the affirmative and Issue No.1 to 3 in
OS.No.2295/10 are answered in the negative.
34. Issue Nos.3 and 5 in OS.1429/08:- Both these
issues are taken together for discussion to avoid repetition.
35. The defendant in OS.1429/08 has contended that
the suit in the present form is not maintainable. It is also
contended that the court fee paid is not proper. The plaintiffs
have contended that they have partitioned the property, but
have jointly sought the relief of permanent injunction in the
present suit. It is contended in the written statement that, as
the plaintiffs are claims to have partitioned the property, they
have to seek the relief separately. RTC produced show that the
property is not sub-divided, it is existing in Sy.No.83/1 and
83/2 though different extent is mentioned for each plaintiffs.
The plaintiffs are jointly seeking the relief in respect of
Sy.No.83/1 and 83/2. Therefore, it cannot be held that the suit
in the present form is not maintainable. As the suit is one for
permanent injunction by the plaintiffs against the defendant
who is interfering in their possession of the suit property, the
suit jointly filed by the plaintiffs for permanent injunction in
59 O.S.No.1429/2008 & 2295/2010
respect of the entire property with common boundaries is very
well maintainable. Similarly, as the plaintiffs have sought the
relief of permanent injunction jointly, the court fee paid is also
proper. As the suit is one for permanent injunction jointly filed
by the plaintiffs in respect of the entire property as one
schedule and as the property is not shown separately, the suit
as filed for permanent injunction jointly by the plaintiffs is
maintainable for permanent injunction and the court fee paid
under section 26(c) of KCF & SV Act, is proper. Accordingly,
these issues 3 and 5 are answered in the negative.
36. Issue No.4 in OS.No.1429/08:- The defendants
have contended that the suit for permanent injunction without
the relief of declaration is not maintainable. The learned counsel
for the defendant has drawn my attention to the cross-
examination of P.W.1, in which he has admitted that from the
year 2004, the defendant has been claiming that he is the
owner of the property in Sy.No.83 and the defendant started
claiming the right over the Sy.No.83 on the strength of the old
documents pertaining to his ancestors. On this admission, it is
contended that as the title of the plaintiffs to the suit property
has been disputed seriously by the defendant even from 2004,
60 O.S.No.1429/2008 & 2295/2010
the proper relief that would have been sought by the plaintiffs is
for declaration and injunction and not the relief of permanent
injunction and as such the suit without the relief of declaration
is not maintainable.
37. In this connection, the learned counsel has drawn
my attention to the decision of the Hon'ble Supreme Court
reported in AIR 2008 S.C. 2033 - Anathulla Sudhakar Vs.
P.Buchi Reddy [dead] by LRs. and others, in which the
Hon'ble Supreme Court has discussed the provisions of Specific
Relief Act with regard to the suit for injunction and the relief of
declaration and in para-11, it has clearly stated the nature of
suit to be filed for a particular specific relief. It is held in this
decision that:
"Where plaintiff is in lawful possession of a property and
such possession is interfered or threatened by the
defendant, a suit for an injunction simpliciter will lie. A
person has a right to protect his possession against any
person who does not prove a better title by seeking a
prohibitory injunction. But a person in wrongful possession
is not entitled to an injunction against the rightful owners."
It is also held that:
"Where the plaintiff is in possession, but his title to the
property is in dispute, or under a cloud, or where the
61 O.S.No.1429/2008 & 2295/2010
defendant asserts title thereto and there is also a threat of
dispossession from defendant, the plaintiff will have to sue
for declaration of title and the consequential relief of
injunction. Where the title of plaintiff is under a cloud or in
dispute and he is not in possession or not able to establish
possession, necessarily the plaintiff will have to file a suit
for declaration, possession and injunction. "
Therefore, as per the decision, when the title of the plaintiff is
under cloud, it is necessary for the plaintiff to seek the relief of
declaration and injunction. It is also explained in para-12 that:
"A cloud is said to raise over a person's title, when some
apparent defect in his title to a property, or when some
prima facie right of a third party over it, is made out or
shown. An action for declaration is the remedy to remove the
cloud on the title to the property. On the other hand, where
the plaintiff has clear title supported by documents, if a
trespasser without any claim to title or an interloper without
any apparent title, merely denies the plaintiff's title, it does
not amount to raising a cloud over the title of the plaintiff
and it will not be necessary for the plaintiff to sue for
declaration and a suit for injunction may be sufficient.
On the basis of this decision and admission of P.W.1 that
the defendant has denied the title form the year 2004, the
learned counsel for the defendant submitted that the suit for
simple injunction is not maintainable.
62 O.S.No.1429/2008 & 2295/2010
38. In the present case, as discussed above, the
defendant has filed a subsequent suit for title. The defendant
has utterly failed to establish his title to the suit property. Both
the suits are clubbed and tried together. The defendant who has
claimed title to the property, has completely failed to establish
the same. As far as, the plaintiffs are concerned, their case is
supported by the documentary evidence, like the grant of
occupancy right, registered title deeds, RTC and is also based
on their possession to the property. Under such circumstances,
as the defendant has claimed title to the property in a separate
suit which is tried together with this suit and has utterly failed
to establish the same, the present suit cannot be held as not
maintainable. When the defendant has failed to establish his
title and admittedly, the defendant is not in possession of the
property, the claim for injunction by the plaintiff cannot be held
as not maintainable. Moreover, in spite of the order of the
Special Deputy Commissioner for Inams Abolition, as early as in
the year 1961, the defendant is claiming right, title to the
property and disputing the plaintiffs' right to the property. That
cannot be considered as either a serious defect in the title of the
plaintiffs or a prima facie right or title of the defendant over the
63 O.S.No.1429/2008 & 2295/2010
property. Hence, the suit for permanent injunction cannot be
held as not maintainable. Accordingly, issue No.4 is answered
in the negative.
39. Issue No.6 in OS.No.1429/08:- As discussed on
issue No.1 and 2, the plaintiffs have established their
possession and enjoyment of the suit property in OS.1429/08.
The claim of the plaintiffs of OS.2295/10 for ownership of the
property measuring 7 acres 15 guntas in Sy.No.83 including
suit property in OS.1429/08, has failed. As the plaintiffs have
proved their possession and enjoyment of the suit property and
have also established the alleged interference caused by the
defendant, the plaintiffs are entitled for the relief of permanent
injunction prayed in OS.No.1429/08. Accordingly, this issue
No.6 is answered in the affirmative.
40. Issue No.5 and 6 and Additional issue No.3 in
OS.No.2295/10 :- All these issues are taken together for
discussion to avoid repetition.
41. The defendants of OS.2295/10, in the written
statement have contended that the court fee paid is not proper
and the suit is barred by limitation. Even in the additional
64 O.S.No.1429/2008 & 2295/2010
written statement, the defendant No.1 has stated that the suit
property has been converted for non-agricultural purpose and
thereby the plaintiffs have to pay the additional court fee on the
market value on the additional relief prayed. On looking to the
plaint, the plaintiffs' suit is one for declaration that they are the
owners of the suit property and for permanent injunction and
mandatory injunction. They have contended that the suit
property is agricultural property bearing Sy.No.83 and now
Sy.No.83/1 and 83/2 and measuring 7 acres 15 guntas. As the
suit property is stated as agricultural property and the plaintiffs
have disputed the claim of the defendants to Sy.No.83 itself and
have also disputed the alleged conversion of land in Sy.No.83 on
the ground that the property of the defendants is Sy.No.8 and
not Sy.No.83, the suit for declaration and injunction as filed by
the plaintiffs by considering the suit property as agricultural
property, cannot be considered as not proper. As the suit
property is shown as agricultural property and notional
valuation has been made by the plaintiffs, the court fee paid
under section 24(b) of KCF & SV Act by valuing the suit
property as agricultural property can be considered as proper.
65 O.S.No.1429/2008 & 2295/2010
42. As regards the additional relief prayed by the
plaintiffs of OS.2295/10, these reliefs are based on the
subsequent events of constructions made by the defendants in
the suit property. It is stated in the plaint that after filing of the
suit, the defendants have put up permanent structure. As such,
on the additional reliefs claimed by the plaintiffs, they cannot be
asked to pay the additional court fee, as stated by the
defendants in the written statement. Hence, the court fee paid
by the plaintiffs in OS.No.2295/10 cannot be considered as
improper. On looking to the contentions taken by the plaintiffs
in the suit, as the suit property is stated as agricultural
property, the court fee paid is proper.
43. The defendants in OS.2295/10 have also contended
that the suit is barred by limitation. The plaintiffs have claimed
that they are in possession of the suit property and the
application given by them to enter their names in the RTC of the
suit property has been rejected and appeal has been preferred
and when there was a stay order, the defendants in
OS.1429/08 have filed the suit. Thereafter, the plaintiffs have
filed this suit for declaration of title and for other reliefs in
2010. It is argued that the suit ought to have been filed within 3
66 O.S.No.1429/2008 & 2295/2010
years, as the defendants have denied their title to the property.
The suit in OS.2295/2010 is for declaration and also for
possession. As per Article 65 of Limitation Act, for possession of
immovable property based on title, limitation is 12 years. Even
for this reason, the suit cannot be held as barred by limitation,
Therefore, the suit cannot be held as not maintainable and
barred by limitation. Accordingly, the above issues are
answered.
44. Additional Issue No.1 and 2 in OS.No.2295/10:-
The plaintiffs have contended that during the pendency of the
suit and the MFA, the defendants have illegally dispossessed
them from the suit property and started putting up construction
and that the defendants have put up construction over 4 acres
13 guntas of the suit property during the pendency of the suit.
The defendants have established by producing the documents
that by taking conversion order, approved plan and license, they
have been making construction in the suit property and alleged
title to the suit property by the plaintiffs of OS.2295/10 and the
possession to the suit property are not established in this case.
As such, the construction of the defendants of OS.2295/10 in
the suit property of Os.1429/0 cannot be considered as illegal
67 O.S.No.1429/2008 & 2295/2010
and the plaintiffs in OS.2295/10 have failed to establish any
illegal construction made by the defendants in 4 acres 13
guntas during the pendecy of the suit.
45. As discussed above, the defendants 1 to 12 in
OS.2295/10 are in possession of the suit property of
OS.1429/08 and they have entered into joint development
agreement with defendant No.13 and by obtaining valid
permission, approved plan etc., they have started construction.
Though it is suggested and admitted by P.W.1 that the license
granted by the BBMP has been cancelled and notice has been
given and even thereafter, the construction has proceeded etc.,
any such construction made even after cancellation of the
license by the BBMP, is different cause of action and that
cannot be decided in the present suit. As regards the present
suit, the plaintiffs have failed to establish their ownership and
also possession to the suit property. The alleged construction
made by the defendants by obtaining valid permission and
approval from the BBMP cannot be considered as illegal.
Accordingly, additional issue No.1 and 2 are answered in the
negative.
68 O.S.No.1429/2008 & 2295/2010
46. Issue No.4 and 7 and additional issue No.4 in
OS.2295/10 :- As discussed on the above issues, the plaintiffs
have failed to establish their ownership and possession over the
suit property in OS.No.2295/10. The plaintiffs in
OS.No.1429/08 have made out their possession to the suit
property and also established that they are making construction
in the suit property by obtaining valid permission and license
from the competent authority. Therefore, the plaintiffs in
OS.2295/10 who have not established the title and possession
and also the alleged interference by the defendants, are not
entitled for any reliefs prayed in the suit. Similarly, even the
relief of mandatory injunction for removal of the permanent
structure constructed for recovery of possession etc., the
plaintiffs are not entitled. The plaintiffs in OS.2295/10 are not
entitled for any reliefs. Accordingly, the above issues are
answered in the negative.
47. Issue No.7 in OS.1429/08 and Issue No.8 in
OS.2295/10 :- For the discussion made on the above issues,
the suit in OS.No.2295/10 is to be dismissed with costs and
OS.No.1429/08 is to be decreed with costs. Accordingly,
following order is passed:-
69 O.S.No.1429/2008 & 2295/2010
ORDER
OS.No.1429/08 filed by the plaintiffs is decreed with costs.
OS.No.2295/10 filed by the plaintiffs is dismissed with costs.
By a decree of permanent injunction in OS.No.1429/08, the defendant is restrained from interfering in plaintiffs' peaceful possession and enjoyment of the suit property.
Draw decree accordingly.
Original of this judgment shall be kept in OS.No.2295/10 and that of copy in OS.1429/08.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 4th day of January, 2016).
(Ravindra Hegde), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 Rahamathulla Khan List of documents exhibited for plaintiff:
Ex.P1 Notice dtd.21.4.1955 70 O.S.No.1429/2008 & 2295/2010 Ex.P2 Challan Ex.P3 Order of Spl. D.C. Ex.P4 & 5 Certified copy of Hissa survey tippani Ex.P6 & 7 Resurvey pakka copies Ex.P8 to 18 RTC extracts Ex.P19 Certified copy of partition deed Ex.P20 to 22 Tax paid recipts Ex.P23 Challan Ex.P24 & 25 Letters of B.D.A. Ex.P26 Certified copy of FIR Ex.P27 Certified copy of complaint Ex.P28 Last page of Charge sheet Ex.P29 Khatha certificate Ex.P30 Assessment extract Ex.P31 Order of Tahsildar Ex.P32 Order of Assistant Commissioner Ex.P33 Order of Spl. D.C. Ex.P34 Tax paid receipt Ex.P35 to 39 C.D. and photographs Ex.P40 Original sale deed Ex.P41 to 44 Certified copies of sale deeds Ex.P45 Certified copy of release deed Ex.P46 Certified copy of rectification deed Ex.P47 Genealogical tree Ex.P48 Certified copy of M.R.No.5/06 Ex.P49 to 54 RTCs Ex.P55 Certified copy of Application 71 O.S.No.1429/2008 & 2295/2010 Ex.P56 Certified copy of order passed by Spl. D.C Ex.P57 to 59 Certified copy of akar bandh, Kardha and tippani copy Ex.P60 to 63 Certified copy of order sheet, plaint and decree in OS.90/39-40 Ex.P64 Certified copy of order sheet in Ex.771/42-43 Ex.P65 to 69 Certified copy of execution petition, verified statement, documents in respect of properties auctioned and sale certificate Ex.P70 Report submitted by DHr. Ex.P71 Certified copy of register extract of Form No.8 Ex.P72 to 74 Certified copies of sale deeds Ex.P75 to 84 RTC extracts Ex.P85 to 87 Certified copies of sale deeds Ex.P88 Certified copy of application Ex.P89 & 90 Certified copy of order passed by D.C. Ex.P91 Certified copy of Jodimallasandra village map Ex.P92 Certified copy of Kardha Ex.P93 Sketch in respect of Sy.No.8 Ex.P94 Sketch in respect of Sy.No.5 Ex.P95 & 95 Sketch in respect of Sy.No.80 & 83.
List of witnesses examined for defendants:
DW.1 Venkatesh List of documents exhibited for defendants:
Ex.D1 Certified copy of order in WP.42485- 42497/2014 72 O.S.No.1429/2008 & 2295/2010 Ex.D2 Certified copy of sale deed Ex.D3 Certified copy of mortgage deed Ex.D4 Certified copy of order sheet in RRT proceedings Ex.D5 Endofrsement Ex.D6 Certified copy of RTC Ex.D7 & 8 RTC extracts Ex.D9 Certified copy of J.D.A. Ex.D10 Certified copy of encumbrance certificate Ex.D11 to 13 Certified copies of sale deeds Ex.D11(a) to Typed copies of sale deeds 13(a) Ex.D14 to 16 Certified copy of plaint, order sheet and application in OS.6422/2014 Ex.D17 to 19 Certified copy of plaint, order sheet and Vakalath in OS.26341/2014 Ex.D20 & 21 Certified copy of petition and order sheet in WP.42485-497/2014 Ex.D22 to 26 Photographs along with C.D. Ex.D27 Application filed under RTI Act Ex.D28 Endorsement issued by survey dept.
XVII Addl. City Civil & Sessions Judge, Bengaluru.73 O.S.No.1429/2008 & 2295/2010
(Order pronounced in open court vide separate judgment) ORDER OS.No.1429/08 filed by the plaintiffs is decreed with costs.
OS.No.2295/10 filed by the plaintiffs is dismissed with costs.
By a decree of permanent injunction in OS.No.1429/08, the defendant is restrained from interfering in plaintiffs' peaceful possession and enjoyment of the suit property.
Draw decree accordingly.
Original of this judgment shall be kept in OS.No.2295/10 and that of copy in OS.1429/08.
XVII Addl. City Civil & Sessions Judge, Bengaluru.74 O.S.No.1429/2008 & 2295/2010