Bangalore District Court
B.S.Srihari vs G.Dinesh Kumar on 16 November, 2015
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH.NO.43).
PRESENT: Sri. LEKKADAPPA JAMBIGI,
B.Com., LL.B.(Spl),
42nd ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE.
Dated this the 16th day of November 2015.
O.S.No.1530/2014
Plaintiff:- B.S.Srihari,
S/o.B.S.Srinivas, 35 years,
R/at No.1276, 11th Cross,
1st Stage, 1st Phase,
Chandra Layout,
Bangalore-72.
(By - Sri.T.A.Karumbaiah, Adv.)
v.
Defendants:- 1. G.Dinesh Kumar,
S/o.B.Govinda Swami,
33 years, R/at No.22/3,
Raghavendra Swami Temple Road,
Chowdappa Thengina Thopu,
Hosakere Halli,
Banashankari III Stage,
Bangalore-85.
2. Kamalamma,
W/o.Siddappa,
R/at No.A, Rudrappa Compound,
Byatterayanapaura,
Mysore Road,
Bangalore-26.
(Defs.1 & 2 - Sri.C.Srinivasa, Adv.)
2 O.S.No.1530/2014
Date of institution of the suit : 22.02.2014
Nature of the suit : Permanent Injunction
Date of commencement of : 28.01.2015
Recording of the evidence
Date on which the Judgment : 16.11.2015
was pronounced
Total Duration : Years Months Days
01 08 24
(LEKKADAPPA JAMBIGI)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
JUDGMENT
This is a suit filed by the plaintiff for the relief of permanent injunction against the defendants, restraining them or anybody on their behalf, from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff with costs.
2. The suit schedule property is the immovable property bearing site Nos.38, 39 and 40 in old Katha No.26, Block No.29, New Katha No.74, situated at Nagadevanahalli 3 O.S.No.1530/2014 Village, Kengeri Hobli, Bangalore South Taluk, presently under the jurisdiction of BBMP, Kengeri Sub Division, Ward No.130, Bangalore, measuring East to West - Northern Side: 80 feet, Southern Side: 91 feet, North to South: 40 feet, totally measuring 3420 square feet with compound wall in 4 sides.
3. The brief facts of the plaintiff's case are as under:-
The grandfather of the plaintiff was a grantee of 4 acres of land in old Sy.No.26 Block No.29, New Sy.No.l73 &
74. Subsequently, Sy.No.26 was numbered as 73 for 2 acres and 74 - 2 acres respectively in Block Nos.23 & 29.
In both the survey numbers after the death of the grantee, his wife and grandmother of the plaintiff namely Muniyamma formed a layout. In Sy.No.74 she has formed Site Nos.1 to 40 and in Sy.No.73 site Nos.41 to 89. The subject matter of this suit 3 sites in site Nos.38, 39 and 40 formed in old Katha No.26, Block No.29, New Katha No.74, situated at Nagadevanahalli Village, measuring North Side:
80 feet, South Side: 91 feet, North to South: 40 feet, totally measuring 3420 square feet. The grandmother of the plaintiff namely Muniyamma died on 05.02.1994. During 4 O.S.No.1530/2014 her lifetime, she had executed a Will dated 01.02.1989 and thereby bequeathed the suit schedule property along with other lands in favour of father of the plaintiff. After coming to know of execution of the Will, father of plaintiff filed P & SC No.2/2005 and obtained Probation and Succession Certificate. Therefore, father of the plaintiff became the absolute owner of the sites formed in Sy.Nos.73 & 74 of Nagadevanahalli Village. The father of the plaintiff has executed a GPA in favour of defendant No.2 on 23.11.1995.
Thereafter, the said GPA has been cancelled by father of the plaintiff under a registered Cancellation Deed dated 10.11.2005. Notice was issued to defendant No.2 regarding cancellation of GPA. Even publication was given in the newspaper. The notice sent to defendant No.2 by registered post has been returned, but notice sent through certificate of posting is served on defendant No.2. Inspite of that, defendant No.2 has got entered into an Agreement of Sale with defendant No.1 on 22.10.2012. The said agreement is without possession. The defendant No.2 has no right to execute the registered Agreement of Sale as GPA given to her has been revoked by father of the plaintiff. 5 O.S.No.1530/2014 The father of the plaintiff has also executed a Gift Deed to the plaintiff on 23.11.2013. The plaintiff becomes the owner and he is in possession of the suit property on the basis of the said Gift Deed. On the basis of the said Gift Deed, katha was changed and the plaintiff has paid the tax to the authority. Hence, the plaintiff is in lawful possession of the suit property. The father of the plaintiff has constructed the compound wall. The defendants without any right, title or interest, are trying to interfere with the possession of the suit property by the plaintiff on the guise of Agreement of Sale and GPA, even though said GPA has been cancelled by father of the plaintiff. The cause of action for the suit arose on 13.01.2014 and 15.01.2014, when the defendants have tried to interfere with the possession of the suit property by the plaintiff. Hence, suit is filed for the relief of injunction.
4. After registering the suit, summons were issued to the defendants. The defendants 1 and 2 have appeared through their counsel and they have filed the written statement. The defendants have has denied the allegations made in the plaint. The defendant No.2 admits that father 6 O.S.No.1530/2014 of the plaintiff is the owner of the suit property and he acquired it by way of succession. Further, it is contended that father of the plaintiff has murdered daughter of defendant No.2 by name Mahalakshmi and in this regard, there is a case and matter was compromised in the presence of one Mr.Ashok Kumar, Inspector, Kengeri Police Station. Thereafter, father of the plaintiff has given the suit property to the minor children of Mahalakshmi. In this regard, Agreement of Sale was effected in their name and he has also executed GPA in favour of defendant No.2. Further, it is stated that defendant No.2 has sold the suit property on the basis of the GPA to defendant No.1. Hence, the suit property is standing in the name of defendant No.1 and he has paid the tax and katha stands in his name. Hence, the plaintiff is not the owner of the suit property. Hence, on these grounds it is prayed to dismiss the suit with costs.
5. On the basis of pleadings above, the issues arisen for consideration are as under:-
7 O.S.No.1530/2014
ISSUES
1. Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference of the defendants?
3. Whether the plaintiff is entitled for the relief of permanent injunction?
4. What order or decree?
6. To prove the case of the plaintiff, the GPA Holder of the plaintiff is examined as PW-1 and marked Ex.P1 to P23. The defendants have not examined any of the witnesses. They have not marked any documents.
7. I have heard the arguments.
8. My findings on the above said 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 final order.
for the following:-
8 O.S.No.1530/2014
REASONS
9. Issue No.1 to 3:-
As these issues are interlinked, I answer them together. As per the contention of the plaintiff, the plaintiff becomes the owner of the suit property on the basis of the Gift Deed executed by his father. The defendants have not disputed regarding flow of title to father of the plaintiff to the suit property. The plaintiff contends that Will has been executed in favour of father of the plaintiff by his grandmother and father of the plaintiff has become the owner. Thereafter, father of the plaintiff has executed Gift Deed in favour of the plaintiff. Hence, this is the mode of title stated by the plaintiff.
10. In the plaint itself, the plaintiff contends that father of the plaintiff has executed a GPA in favour of defendant No.2. The plaintiff has not stated the cause for executing GPA in the plaint. But in the written statement, defendant No.2 has contended that father of the plaintiff has murdered daughter of defendant No.2 by name Mahalakshmi and in this regard, the matter was 9 O.S.No.1530/2014 compromised in the Police Station itself, wherein father of the plaintiff has given suit property to the children of Mahalakshmi. In this regard, he has executed Agreement of Sale in favour of children of Mahalakshmi. Further, it is stated that at the same time, father of the plaintiff has executed GPA in favour of defendant No.2. Further, it is stated that defendant No.2 has sold the property in favour of defendant No.1 for family necessity i.e., for the expenses of marriages of children of Mahalakshmi. These aspects have been stated by defendant No.2 in the written statement. The plaintiff has stated that father of the plaintiff has revoked the GPA executed to defendant No.2. The revocation notice has been sent to defendant No.2 through registered post, the same was not served on defendant No.2. Simultaneously father of the plaintiff has also sent notice by certificate of posting, which has been served on defendant No.2. Further, publication was also given in the newspaper in respect of revocation of GPA. Hence, defendant No.2 has no right to execute Agreement of Sale in favour of defendant No.1 or anybody. Thereafter, father of the plaintiff has executed a Gift Deed in favour of 10 O.S.No.1530/2014 the plaintiff. On the basis of the said Gift Deed, the plaintiff acquired the title. This is the mode of acquiring title to the suit property by the plaintiff. This aspect has been stated by the plaintiff.
11. In this regard, the plaintiff has produced Ex.P1 - SPA executed by the plaintiff in favour of PW-1. Ex.P2 is the GPA executed by father of the plaintiff in favour of defendant No.2. Ex.P3 is the Cancellation Deed of GPA. As per Ex.P2, GPA is executed on 23.11.1995 and as per Ex.P3, GPA at Ex.P2 has been cancelled in the year 2005. Hence, GPA is not in existence. Even the notice has been issued in respect of revocation of GPA. Ex.P4 is the copy of the notice. Ex.P5 is the publication given in the newspaper. Ex.P6 is the Agreement of Sale executed by defendant No.2 in favour of defendant No.1 on 22.10.2012. Ex.P7 is the Gift Deed executed by father of the plaintiff to the plaintiff. Ex.P8 is the tax paid receipt. Ex.P9 is the Katha Extract. Ex.P10 to 15 are the tax paid receipts. Ex.P15 and P16 are the ECs. Ex.P18 is the Judgement passed in SC No.338/1996. Ex.P19 is the sketch. Ex.P20 to P22 are the 11 O.S.No.1530/2014 photos and Ex.P23 is the CD. On the basis of the documents, the plaintiff has filed the suit.
12. The plaintiff has filed the suit for injunction and as such, the duty is cast on the plaintiff to show that he is in lawful possession of the suit property on the date of the suit. To show title of the plaintiff, he contends that it belongs to his father. Even the defendants have taken up the contention in the written statement that father of plaintiff is the owner of the suit property. The father of the plaintiff has inherited the same from his mother, who in turn, succeeded it from her husband. The grandmother of the plaintiff has executed a Will in the name of father of the plaintiff bequeathing the suit property in his favour. Hence, title of the father of the plaintiff to the suit property is admitted by both the parties. The plaintiff contends that father of the plaintiff has executed Gift Deed in his favour. The plaintiff has produced the registered Gift Deed dated 23.11.2013. The certified copy of the Gift Deed is produced at Ex.P7. As per this document, the plaintiff acquires title to the suit property. Even the revenue records are standing in the name of the plaintiff. The plaintiff has paid the tax and 12 O.S.No.1530/2014 tax paid receipts are produced at Ex.P10 to P15. Hence, the plaintiff has shown his title to the suit property. The plaintiff contends that he is in possession of the suit property. The possession of the plaintiff is narrated in the Gift Deed. On the date of Gift Deed possession of the property has been handed over to the plaintiff. The tax paid receipts disclose that the plaintiff is in possession of the property. Even encumbrance certificates have been produced. Hence, these documents disclose title and possession over the suit property by the plaintiff.
13. The SPA Holder of the plaintiff has given evidence reiterating the averments of the plaint. The evidence of PW-1 coupled with documents produced by the plaintiff, disclose that the plaintiff has become the owner of the suit property.
14. The defendants have taken up several contentions. The evidence of PW-1 is not challenged in any way as there is no cross-examination to PW-1. Further, the defendants have not led any rebuttal evidence. Only by filing the written statement the defendants contend that suit 13 O.S.No.1530/2014 may be dismissed. But to substantiate the case of the defendants, the defendants have not produced any documents and led evidence. Hence, evidence of PW-1 discloses title of the plaintiff to the suit property and possession over the same.
15. The defendants in the written statement have taken up the contention that father of the plaintiff has murdered daughter of defendant No.2 by name Mahalakshmi. In this regard, judgement has been produced by the plaintiff at Ex.P16, wherein father of the plaintiff has shown as accused No.1 and all the accused are acquitted. Hence, contention of defendant No.2 that father of the plaintiff has murdered daughter of defendant No.2 is not proved. Further, it is contended in the written statement that there is settlement by parties, wherein father of the plaintiff has executed GPA in favour of defendant No.2 and further he has executed Agreement of Sale in favour of children of Mahalakshmi. But to substantiate this aspect no documents are produced. No doubt, GPA has been produced by the plaintiff only. But the said GPA is at Ex.P2. The said GPA has been revoked by father of the plaintiff. 14 O.S.No.1530/2014 Ex.P3 is the registered revocation deed of GPA. Further, father of the plaintiff has issued legal notice shown his intention to cancel this GPA. The said notice is at Ex.P4. Ex.P5 is the publication, which disclose that father of the plaintiff has cancelled the GPA. Any transaction taken place in view of the said GPA after revocation of the GPA is not having any value. More over, the defendants have not shown any material in respect of execution of Agreement of Sale in favour of children of Mahalakshmi. Hence, this aspect remained without proof.
16. Further, the defendants have taken up the contention that on the basis of the GPA executed by father of the plaintiff, defendant No.2 has sold the property to defendant No.1. Even to substantiate this aspect the defendants have not produced any documents. They have not led any evidence. Hence, whatever the contentions of the defendants taken in the written statement have been remained without proof. At one breath, defendants contend that defendant No.2 has executed registered Sale Deed in favour of defendant No.1. But the plaintiff's document discloses that defendant No.2 has executed Agreement of 15 O.S.No.1530/2014 Sale without possession. Hence, the defendants are not specific in their defence. More over, they have not established their title to the suit property.
17. The plaintiff has produced Ex.P6, which is the Agreement of Sale executed by defendant No.2 in favour of defendant No.1. This document is dated 22.10.2012. But GPA has been revoked in the year 2005 itself as per Ex.P3. Even the document at Ex.P6 discloses it is without possession of the property. Hence, on the basis of this document, the defendants would not get any title to the suit property. Even defendant No.1 has not made any efforts to get Sale Deed registered in view of the Agreement of Sale. Hence, title does not pass from the father of the plaintiff to defendant No.1.
18. The plaintiff has produced the Gift Deed, which is the title deed and his father is title holder earlier to the plaintiff and acquisition of title by father of the plaintiff has been stated and proved by the plaintiff and the plaintiff is able to show that he is having title and possession over the 16 O.S.No.1530/2014 suit property. Hence, this aspect discloses that the plaintiff is in possession of the suit property on the date of the suit.
19. PW-1 has given evidence, wherein he states in respect of obstruction by the defendants. The defendants tried to obstruct for enjoying the suit property. This portion of evidence of PW-1 is not challenged as there is no cross- examination to PW-1. Hence, interference is also proved by the plaintiff. Considering the circumstances, the plaintiff is able to prove his lawful possession and interference on the suit property. Accordingly, he is entitled for an order of injunction. Accordingly, I answer Issue No.1 to 3 in the affirmative.
20. Issue No.4:- In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is decreed with costs. The defendants are permanently restrained from causing obstruction for enjoyment of the suit property by the plaintiff.17 O.S.No.1530/2014
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 16th day of November 2015) (LEKKADAPPA JAMBIGI) 42ND ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.B.S.Srinivasa
(b) Defendants' side: Nil.
II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : SPA
Ex.P2 : Certified Copy of the GPA dated
23-11-1995
Ex.P3 : Certified copy of Cancellation of
GPA dated 10-11-2005
Ex.P4 : Office copy of the legal notice
Ex.P5 : Paper publication
Ex.P6 : Certified copy of Agreement of
Sale dated 22-10-2012.
18 O.S.No.1530/2014
Ex.P7 : Certified copy of Gift deed dated
23-11-2013.
Ex.P8 : Tax paid receipt.
Ex.P9 : B-Khatha
Ex.P10 to 15 : Tax Paid Receipts.
Ex.P16 & 17 : Encumbrance Certificates.
Ex.P18 : Certified Copy of Judgment in SC
338/1996
Ex.P19 Certified Copy of Layout Plan
Ex.P20 to 23 Photos (3 in nos.) along with CD
(b) Defendants' side:
42nd ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE.
19 O.S.No.1530/2014
(Judgement pronounced in the open
Court and order portion of the same
is extracted as under)
ORDER
Suit of the plaintiff is decreed
with costs.
The defendants are
permanently restrained from
causing obstruction for enjoyment of
the suit property by the plaintiff.
Draw decree accordingly.
(LEKKADAPPA JAMBIGI)
nd
42 Addl.CC& SJ, Bangalore.