Bangalore District Court
Smt.Janaki.P vs The Hindu Charitable And on 27 September, 2019
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL&
SESSIONS JUDGE,MAYOHALL UNIT, BENGALURU
(CCH74)
Present: Sri.Yamanappa Bammanagi,
B.A., LL.B., (SPl.,)
LXXIII Addl.City Civil & Sessions Judge
Dated this the 27th day of September, 2019.
OS NO. 25661/ 2013
Plaintiff: Smt.Janaki.P.,
W/o.Sri.R.Nataraja,
Major, R/o.No.146/16,
7th Cross, Thayappa Garden,
Coconut Avenue Road,
Malleshwaram, Bengaluru.
(By Sri.C.N.Venugopal Adv.)
V/s
Defendant: THE HINDU CHARITABLE AND
ENDOWMENT COMMITTEE,
Alur Venkatarao Street,
Chamarajpet,
Bengaluru560018.
Represented by
The Deputy Commissioner
Muzrai Properties,
Charitable and Endowment
Committee, Bengaluru.
(By Sri.Venkatesh.G. - Adv.)
2 O.S.No.25661/2013
Date of Institution of the suit 19.04.2013
Nature of the (Suit or pronote, suit
for declaration and possession, suit Injunction Suit
for injunction, etc.)
Date of the commencement of
17.07.2019
recording of the Evidence.
Date on which the Judgment was
27.09.2019
pronounced.
Year/s Month/s Day/s
Total duration 06 05 08
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH74)
JUDGMENT
The plaintiff has filed this suit for permanent injunction, restraining the Defendant, its representative, administrators, executors or authorized person, from interfering with the Plaintiff's peaceful possession and enjoyment of the suit schedule property.
2. Brief facts of the plaintiff's case:
It is the case of the Plaintiff that one Thayappa was cultivating the land measuring 1acres 3gunta which belongs to the endowment of Sri.Kodi Anjaneya Swamy 3 O.S.No.25661/2013 Temple at Sheshadri Puram, Bengaluru, as a lessee, after demise of said Thayappa his eldest son by name Muniswamappa, being head of the joint family, become tenant of the said property, they have been cultivating the said land for the past more than 30 years, so T.Muniswamappa was a registered tenant, he used to pay Panchashala Gutta of the property to authority.
3. Further contended in the plaint that, after abolition of minor DevaDaya Temple Inams, said T.Muniswamappa had filed application before the Special Deputy Commissioner for Abolition of Inams, Bengaluru, for registration of occupancy rights was in respect of property mentioned in the schedule. The said authority had passed the order in case No.AIMS37/7273, dated 30041974, by the said order the occupancy rights of 1acre 30gunta land bearing No.29 of Jakkasandra Village, Bengaluru North Taluk, in favour of T.Muniswamappa.
4 O.S.No.25661/2013
4. However, in view of the the settlement arrived between the parties in the said case, the Special Deputy Commissioner for Abolition of Inams, had passed order on settlement agreement between T.Muniswamappa and authority of Kodi Anjaneya Swamy Temple.
5. As per the said compromise, it ordered that 26 ¼ guntas land, out of 1acre 3gunta, is registered in the name of temple and the remaining land of 16 ¾ guntas is ordered to be registered in the name of T.Muniswamappa.
6. Thus the T.Muniswamappa became the registered occupant, owner in respect of 16 ¾ guntas land in Sy.No.29 of Jakkasandra Village, Bengaluru North Taluk, now included in division No.7, numbered as 146/2 coconut avenue road, 7th Cross, Malleshwaram, Bengaluru03.
7. Thereafter said T.Muniswamappa and his family members have entered into registered family partition dated 31071974. Thereafter, Smt.Muniyamma has sold 5 O.S.No.25661/2013 the suit property to one Gangappa Naidu under registered sale deed and said Gangappa Naidu has sold the suit property to one Sri.Kannamma and said Kannamma had sold the suit property to the plaintiff under registered sale deed dated 15.05.1995. So, present Plaintiff got changed her name in the revenue records of suit schedule property and Plaintiff is paying taxes in respect of suit schedule property to competent authority.
8. Such being the fact, on 21122012 the Defendant and other 45 persons, from the office of Defendant, had come to the suit property and informed that Defendants are taking measurement of suit property to know the extent of land under the occupation of Plaintiff and 22 others without issuing any notice to the Plaintiff. Not only this the Defendant had issued notice to Plaintiff on 20032013 under Rule 39 of the Karnataka Hindu Charitable and Endowments Rules, stating that property bearing Sy.No.29 of Jakkasandra 6 O.S.No.25661/2013 Village, is belongs to Sri Kodi Anjaneya Temple and Plaintiff had encroached of the said land. On receiving the said notice from Defendant the Plaintiff had replied to the Defendant notice, but the Defendant even after receiving reply did not stopped his interference in the suit schedule property. Hence, the Plaintiff had filed this suit for necessary relief sought in the Plaint.
9. In pursuance of the suit summons the Defendant had appeared through his counsel filed written statement. The Defendant had denied the case of the Plaintiff as false and frivolous, vexatious. The Defendant had denied case of the Plaintiff parawise reiterating the averments of the Plaint and denied the same. Further contended in the written statement that, there is no partition among the family members of T.Muniswamappa, there is no order of Deputy Commissioner, the family of T.Muniswamappa never was in possession of the suit property and they are not a owners the they have not sold the suit property. And 7 O.S.No.25661/2013 Smt.Muniyamma has not sold the suit property to one Gangappa Naidu under registered sale deed and said Gangappa Naidu has not sold the suit property to one Sri.Kannamma and said Kannamma has not sold the suit property to the plaintiff under registered sale deed dated 15.05.1995. [
10. Further stated that the Plaintiff has constructed house over the suit schedule property illegally and un authorizedly. Further contended that the Survey conducted by the Defendant on 21122012, was legal, same is within the right of Defendant and Sy.No.29 of Jakkasandra Village, the vendors of Plaintiff never in possession of the suit property and the Deputy Commissioner never passed any order in respect of suit property, whatsoever, hence, no right is acquired by the Plaintiff's father. With this, the Defendant prayer for dismissal of the suit.
8 O.S.No.25661/2013
11. On the pleading of the parties my learned Predecessor framed the following:
ISSUES
1. Whether the plaintiffs prove that she is in possession of the plaint schedule property?
2. Whether the plaintiffs further prove that the defendants are interfering with the peaceful possession and enjoyment of the suit schedule properties?
3. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?
4. What order or decree?
12. In order to prove her case the Plaintiff is examined as PW.1 and got marked Ex.P1 to P17 and closed her side evidence. Defendant has filed written statement and denied the case of the Plaintiff. But Defendant did not choose to cross examined PW.1 and did not choose to lead his evidence to prove his defence 9 O.S.No.25661/2013 taken in the written statement. After filing written statement and Defendant and his counsel remained absent. The learned counsel for the Plaintiff has filed his written argument. When suit was posted for argument on Defendant side Defendant and his counsel absent. Hence, argument on Defendant side is taken as heard and posted for judgment. I have perused oral and documentary evidence and pleadings of the parties and considered the argument of the learned counsel for the parties.
13. My answer to above Issues are as follows:
Issue No.1 : In the Affirmative. Issue No.2 : In the Affirmative. Issue No.3 : In the Affirmative. Issue No.4 : As per the final order, for the following:
REASONS
14. Issue No.1: In order to prove her case the Plaintiff is examined as PW.1 and got marked Ex.P1 to P17. PW.1 filed her affidavit in lieu of examination in 10 O.S.No.25661/2013 chief, reiterating the averments of the plaint. It is the case of the Plaintiff that, plaintiff had purchased the suit property under registered sale deed from her vendor, who was absolute owner and in possession of the suit schedule property. After purchase, the plaintiff had constructed house over the suit schedule property. So, by virtue of registered sale deed, the plaintiff is in possession and enjoyment of the suit schedule property. In support of her oral evidence, Plaintiff has produced documents which have been marked at Ex.P1 to P17.
15. Ex.P1 is the copy of reply notice dated 7.5.2013. Ex.P.2 is the registered sale deed, I have perused the Ex.P2 it is seen that, the plaintiff has purchased the suit property from her vendor. Ex.P.3 to P.8 are the certified copies of sale deeds of vendors of the plaintiff and the vendors of the Plaintiff had transferable title over the suit property. Ex.P9 is the original khatha extract, Ex.P.10 is the khatha certificate and Ex.P.11 to 11 (a) to (c) are the original taxpaid receipts and Ex.P.12 to P.12(a) to (q) are 11 O.S.No.25661/2013 the original electricity bills. Ex.P.13 to P.13 (a) to (i) are the original electricity receipts. Ex.P.14 to 14 (a) to (e) are the water bills. Ex.P.15 to 15( a) to (h) are the water receipts. Ex.P.16 is the photo of the suit property and Ex.P.17 is the CD.
16. I have perused Ex.P3 to P8, on perusal of the same it is clear that vendors of the Plaintiff had valid title and were in possession of the suit schedule property at the time of sale to the Plaintiff and Plaintiff is in possession of the suit schedule property at the time of the filing of the suit.
17. Ex.P9 is the khatha extract and Ex.P10 is the khatha certificate stands in the name of the Plaintiff. Ex.P11 to P.15 are the taxpaid receipts, electricity bills, and electricity receipts and water bills. And Ex.P.16 is the photo and P.17 is the CD.
18. I have perused Ex.P2 to P8, which are registered sale deeds in respect of suit schedule property and Ex.P.9 to 15 are the revenue records, which stands in the 12 O.S.No.25661/2013 name of Plaintiff. On perusal of the same, it is seen that, the Plaintiff had purchased the suit schedule property under registered sale deed and vendor of the Plaintiff have title and possession over the suit property at the time of the sale.
19. On perusal of the sale deeds and mother deeds, it is clear that, the Plaintiff has proved her legal possession and enjoyment of the suit property by virtue of registered sale deed, at the time of the filing of the suit. Under such circumstances, I am of the opinion that, Plaintiff is entitle for the relief sought in the Plaint as Plaintiff has proved her possession. In support of my opinion I relied on the decision reported in AIR 2008 SC 2033 in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
The lordship have held in the decision thus:
Where Plaintiff is in lawful or peaceful possession of a property and such possession is interfered 13 O.S.No.25661/2013 or threatened by the Defendant a suit for an injunction simpliciter will lie.
20. I have perused Ex.P9 to P15, are the revenue records and Ex.P.16 is the photo and Ex.P.17 is the CD. On perusal of the same, it is clear that Plaintiff is in possession and enjoyment of the suit schedule property, at the time of filing of the suit. So, the Plaintiff has produced title deeds and revenue records and established her possession by producing the Ex.P1 to P17.
21. Though Defendant has appeared through his counsel and filed written statement and denied the case of the Plaintiff. But Defendant did not choose to cross examined PW.1 and did not choose to lead his evidence to prove his defence taken by him in the written statement. So, the oral and documentary evidence led by the Plaintiff are remained unchallenged. under such circumstances, I am of the firm opinion that, Plaintiff has proved this issue with cogent evidence. hence, I hold 14 O.S.No.25661/2013 that Plaintiff is in possession and enjoyment of the property. With this, I answer this issue in the Affirmative.
22. Issue No.2: The case of the Plaintiff is that, the Plaintiff had purchased the suit schedule property under registered sale deed, dated 15051995, she has constructed house over the suit property, she is in possession and enjoyment of the suit property as a absolute owner.
23. Such being the fact, during the year 2013 Defendant authority had issued a notice calling upon Plaintiff to produce the title deeds of the suit property. In the said notice Defendant has denied the ownership and possession of the Plaintiff. The Plaintiff had replied to the notice. In the notice Defendant has clearly denied the possession of the Plaintiff and send its officials for measurement of suit property without prior notice to the Plaintiff, contending that suit schedule property is belongs to Sri Kodi Anjaneya Temple. So act of issuing 15 O.S.No.25661/2013 notice to the Plaintiff challenging the possession and enjoyment of the suit property is clearly shows that Defendant has interfered in the possession of the Plaintiff. So on basis of oral evidence of the Plaintiff it is clear that the Defendant has interfered in the peaceful possession and enjoyment of the suit property. Hence, I hold that the Plaintiff has proved the interference of the Defendant. With these reasons, I answer this issue in the Affirmative.
24. Issue No.3: The case of the Plaintiff is that she is in possession and enjoyment of the suit property as absolute owner. She has produced the certified copy of the sale deed and certified copy of the mother deeds and the revenue records Ex.P1 to P17.
25. On perusal of the Ex.P1 to P17, it is clear that, Plaintiff is in possession and enjoyment of the suit schedule property at the time of filing of the suit. Ex.P9 and P10 khatha extract and certificate. All these revenue records stand in the name of the Plaintiff. On 16 O.S.No.25661/2013 perusal of the revenue records it clearly establishes that the Plaintiff is in possession and enjoyment of the suit property at the time of filing of the suit. The entries in revenue records has got presumptive value under the law of evidence. As per Sec.35 of the Indian Evidence Act, which reads thus:
35.Relevancy of entry in public [record or an electronic record] made in performance of duty.__ An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact. 17 O.S.No.25661/2013
Editor's Note._The words "Fact", "Facts in issue" and 'Relevant"
are defined in Section 3 of this Act.
26. In support of my opinion I relied on the decision reported in ILR 2004 KAR.1074 in case of Naganna Vs. Shivanna. The lordship have held at Head note B. thus:
REBUTTAL EVIDENCE - entries in the ROR carries presumptive value in law - if there is no convincing evidence to rebutt the legal presumption, lessor relief of injunction can be granted. But the declaration title cannot be granted.
27. Further relied on decision reported in AIR 2008 SC 901 in case of Gurunath Manohar Pavaskar and 18 O.S.No.25661/2013 others Vs. Nagesh Siddappa Navalgund and Others. The lordship have held at Head note B. reads thus:
Evidence Act, (1 of 1872), Ss.
35, 114 revenue records not document of title it merely raises presumption of possession.
The lordship have discussed at Para 12 of the judgment, which reads thus:
A revenue record is not a
document of title. It merely
raises a presumption in regard to
possession. Presumption of
possession and/or continuity
thereof both forward and
backward can also be raised under
Section 110 of the the Indian
Evidence Act. The Courts below,
were, therefore, required to
appreciate the evidence keeping
19 O.S.No.25661/2013
in view the correct legal
principles in mind.
28. On perusal of the oral and documentary evidence it is clearly established that Plaintiff has proved her possession of the suit property at the time of the filing of the suit and Plaintiff has proved the interference of the Defendant in peaceful possession and enjoyment of the suit property of the Plaintiff. With this reasons and relying on the decision referred above, I hold that the Plaintiff is entitle for the relief sought in the Plaint.
Hence, I answer this issue in the Affirmative.
29. Issue No.4 : Inview of the discussion made on Issue No.1 to 3, I proceed to pass the following:
ORDER The suit filed by the plaintiff is hereby decreed. Consequently, Defendant, its representative, 20 O.S.No.25661/2013 administrators, executors or any authorized person, are hereby restrained from interfering with Plaintiff's peaceful possession and enjoyment of the suit schedule property, by decree of permanent injunction.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 27th day of September, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) SUIT SCHEDULE PROPERTY All the piece and parcel of the residential portion of property bearing No.146/16, (old No.146/2), Old No.7, situated at 7th Cross Road, Thayappa Garden, near Coconut Avenue Road, 21 O.S.No.25661/2013 Malleshwaram, Bengaluru, measuring East to West:
22 feet, and North to South: 10 feet, together with existing residential, bounded on the:
East by: Property No.8;
West by: Property No.6;
North by: Property No.9; and on South by: Road.
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) ANNEXURE List of witness examined for the plaintiff's side:
PW1: Smt.Janaki.P. List of documents exhibited for the plaintiff's side:
Ex.P.1 : Office copy of reply notice dated 7.5.13 Ex.P.2 : C/C of sale deed dated 15.05.1995 [ Ex.P.3 : C/C of sale deed dated 24.7.1995 Ex.P.4 : C/C of sale deed dated 25.05.1979 Ex.P.5 : C/C of sale deed dated 10.02.1975 Ex.P.6 : C/C of sale deed dated 29.01.1982 Ex.P.7 : C/C of sale deed dated 03.08.1974 Ex.P.8 : C/C of sale deed dated 31.07.1974 Ex.P.9 : Original khatha extract dated 04.01.2019 22 O.S.No.25661/2013 Ex.P.10: Original khatha certificate dated 04.1.19 Ex.P.11, 11(a) to
(c) : 4 Original taxpaid receipts Ex.P.12, 12(a) to
(q) : 18 Original electricity bills Ex.P.13, 13(a) to
(i) : 10 Original electricity receipts Ex.P.14, 14(a) to
(e) : 06 Water bills Ex.P.15, 15(a) to
(h) : 09 Water receipts Ex.P.16: One photo Ex.P.17: One CD List of witness examined for the defendant's side :
Nil. List of document exhibited for the defendant's side:
Nil. (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru.(CCH74) 23 O.S.No.25661/2013 24 O.S.No.25661/2013