Bangalore District Court
Sri. Bhogesh vs Smt. Munivenkatamma on 2 January, 2023
KABC010251752016
Presented on : 26-10-2016
Registered on : 26-10-2016
Decided on : 02-01-2023
Duration : 6 years, 2 months,
7 days
IN THE COURT OF LXIV ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU CITY
Dated this 2 nd day of January 2023
-: P R E S E N T :-
Smt. Kalpana M.S.,
B.Sc., LL.M.,PGD-CLCF.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
O. S. No.7527/2016
PLAINTIFF: : Sri. Bhogesh,
S/o. N.Vishwanathaiah,
Aged about 52 years,
R/at. No.77, 4th Main Road,
1st Phase, 1st Stage,
Manjunathnagar,
Chord Road West,
Bengaluru-560 010.
(By Sri. S.G.Venkatachalapathy,
Advocate)
/Vs/
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O.S.No.7527/2016
DEFENDANTS: 1. Smt. Munivenkatamma,
W/o. Late b.T. Ramaiah Naidu,
Aged about 70 years,
R/at Ballala Samudra Village,
Srirampura Hobli,
Hosadurga Taluk,
Chitradurga District.
(Dead)
2. R.Gangadhar Naidu,
S/o.Late B.T. Ramaiah,
Aged about 60 years,
R/at No.621, 2nd Main
2nd Cross, Medahalli New Extn.,
Bengaluru-49.
(By Sri. Mahabaleshwara G.C.,
Advocate)
1. Date of institution of the : 26.10.2016
suit
2. Nature of the suit : Injunction Suit
3. Date of commencement of : 21.01.2019
recording of evidence
4. Date on which the : 02.01.2023
judgment
was pronounced
5. Duration : Years months days
6 2 7
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O.S.No.7527/2016
JU DG MEN T
This suit is filed by the plaintiff against the
defendants for the relief of permanent injunction by
restraining the defendants or P.A. holder, Assignees,
Agents or workers anybody acting on behalf of the
defendants from interfering into the peaceful
possession of the plaintiff in respect of the suit
schedule property with costs.
2. The factual matrix leads to file this suit is as
follows;
The plaintiff is the absolute owner in possession
of the property No.8, Municipal No.123, in
Sy.No.141/2B, Ward No.15, PID No.15-44-123
measuring East West and northern side 20 ft., and
towards southern side 30 ft and towards North to
South 45 ft., situated at Manjunath Nagar, 1st Phase,
1st Stage, WOC Road, Rajajinagar, Bengaluru
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O.S.No.7527/2016
(hereinafter referred as suit schedule property), having
acquired by virtue of registered Sale Deed dated
06.07.2002 for valuable sale consideration executed
by Munivenkatamma and R. Gangadhara, who are the
defendants in this case. Subsequent to sale deed, the
plaintiff was put into the physical possession of the
suit schedule property. He got transferred katha in his
name in the office of BBMP and paying property taxes
to the concerned authority. He has put up car shed in
the suit schedule property and parking his vehicles. It
is further averred that, originally suit schedule
property was belongs to one K. Nanjappa, who has
executed Will dated 24.05.1993 in favour of
defendants. By virtue of the Will and other documents,
after death of K.Nanjappa, defendants have became
absolute owner in respect of the suit schedule
property. Thereafter, defendants offered to sell the
property in favour of the plaintiff and executed Sale
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O.S.No.7527/2016
Agreement dated 19.10.2001 and thereafter, executed
Sale Deed dated 06.07.2002 in favour of plaintiff. After
execution of the Sale Deed, dated 06.07.2002, the
defendants have lost their right in respect of the suit
schedule property. However, they came near the suit
schedule property on 24.10.2016 along with their
henchmen and antisocial elements and attempted to
interfere into the peaceful possession of the plaintiff
and tried to dismantle the valuable things in the suit
schedule property. The plaintiff has resisted the illegal
attempt of the defendants with the help of neighbours
and well wishers. The jurisdictional police refused to
take any action, since the dispute is civil in nature. It
is averred that, left with no other option, plaintiff
approached this court for the relief of permanent
injunction against interference of the defendants.
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O.S.No.7527/2016
3. In pursuance of the summons, defendants
No.1 and 2 appeared through their counsel. Defendant
No.2 filed written statement and defendant No.1 filed
memo adopting the said written statement, which may
be summarized as under;
This defendant denied the plaint averments and
contend that, K.Nanjappa was the absolute owner of
the self-acquaired suit schedule property. He
executed a Will dated 24.05.1993 in favour of the
defendants by creating life interest in favour the
defendant No.1 and thereafter, absolute interest in
favour of defendant No.2. Said K.Nanjappa expired on
20.05.1998. Therefore, Will has come into force by
confirming the entitlement of the defendant No.1 with
respect to schedule property. Defendant No.1 is still
alive. Under these circumstances as on date,
defendant No.2 is not having or confirmed with
absolute right, title, interest and possession over the
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O.S.No.7527/2016
suit schedule property. None of the defendants are the
absolute owners of the suit schedule property as on
the date of the Sale Deed, as per the Will dated
24.05.1993 executed by Mr.K.Nanjappa. The plaintiff
under the guise of execution of registered Power of
Attorney, without knowledge of the defendants,
surreptitiously got registered the Sale Deed in his
favour, which otherwise is sham, bogus and void ab-
initio. When the defendants do not have right to
register the Sale Deed, plaintiff cannot acquire any
right and title upon the same. When Sale Deed itself is
void ab-initio and not sustainable in the eye of law, the
possession cannot ever be claimed by the plaintiff.
Even today, the defendants are in possession of the
suit schedule property, which has only a small shed.
The defendants are parking their vehicles therein and
all the nearby residents are also using the said
property with the concurrence of the defendants. When
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O.S.No.7527/2016
the facts stood thus after lapse of 14 years, from the
date of alleged Sale Deed, plaintiff is seeking an order
of injunction restraining the defendants and their men
from interfering with the peaceful possession of the
schedule property. In case plaintiff had bonafide
intention to purchase the suit schedule property, he
ought to have verify the flow of title and make sure
about the absolute ownership of the defendants upon
suit schedule property. The plaintiff is intended to
encash the innocence of the defendants and thereby
made them to execute the Sale Deed dated 06.07.2002.
Plaintiff is close relative of the defendants. Therefore,
he clandestinely made use of the knowledge he had
about the schedule property and surreptitiously
attempted to swallow the same. He has not
approached the court with clean hands. He has not
made out prima facie case and balance of convenience
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O.S.No.7527/2016
tilts in favour of defendants. On all these contentions,
defendants prayed for dismissal of the suit.
4. Considering the averments made in the
plaint and denials made in the written statement, this
court has framed the following;
ISSUES
1. Whether plaintiff proves that he is in
peaceful possession and enjoyment of the
suit property ?
2. Whether plaintiff proves the alleged
interference/obstruction by the defendants?
3. Whether the plaintiff is entitled for the relief
of permanent injunction?
4. What Order or Decree?
5. In order to prove his case, plaintiff examined
himself as Pw.1 and got marked 4 documents at Ex.P.1
to Ex.P.4. Defendant No.2 examined himself as Dw.1
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O.S.No.7527/2016
and got exhibited 4 documents at Ex.D.1 to Ex.D.4
and closed their respective side evidence.
6. Heard arguments. Perused materials on
record. During pendency of suit, defendant No.1 died
and suit is abated against her.
7. On appreciation of oral and documentary
evidence and on hearing both sides, my findings on the
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:
REASONS
8. ISSUES NO.1 & 2:-Since both issues are
inter-related, I would like to take up these issues
together for discussions in order to avoid repetition of
facts and evidence.
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O.S.No.7527/2016
This is a suit filed by the plaintiff against the
defendants seeking the relief of permanent injunction
simplicitor. The plaintiff based his title and possession
on the registered Sale Deed dated 06.07.2002 executed
by the defendants in his favour in respect of the suit
schedule property. He contends that, the defendants
have parted with possession of schedule property in
favour of the plaintiff under the above said registered
Sale Deed. Since from the date of Sale Deed, plaintiff
has been in peaceful possession and enjoyment of the
suit schedule property. Such being the case, the
defendants have tried to dismantle the valuable things
in the suit schedule property with the help of anti-
social elements and attempted to interfere with the
peaceful possession of the suit schedule property,
which is the reason and cause of action to file this
suit.
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O.S.No.7527/2016
9. Per contra, the defendants admits that,
K.Nanjappa was the original owner of the suit schedule
property and he executed Will dated 24.05.1993
creating life interest in the suit property in favour of
defendant No.1 and thereafter, absolute interest in
favour of the defendant No.2. After the death of
K.Nanjappa, defendant No.1 had only life interest
wherein defendant No.2 had not acquired any title,
right and interest over the property. However, under
the guise of execution of General Power of Attorney,
plaintiff has got executed Sale Deed dated 06.07.2002
without knowledge of the defendants and attempted to
swallow the valuable property. Defendants are in
continuous peaceful possession and enjoyment of the
suit property. The alleged Sale Deed does not create
any right, title and interest much less possession in
favour of the defendants. On these grounds,
defendants opposed the claim of the plaintiff.
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O.S.No.7527/2016
10. In order to prove his claim, plaintiff got
examined himself as Pw.1 and reiterated plaint
averments in his affidavit filed in lieu of examination-
in-chief. Further, he has produced and relied on the
documents from Ex.P.1 to Ex.P.4. Ex.P.1 is the
registered Sale Deed dated 06.07.2002 executed by the
defendants No.1 and 2 in favour of the plaintiff in
respect of the suit schedule property. The recitals of
the Sale Deed provides that, on the date of execution of
the registered Sale Deed, plaintiff was put in
possession of the suit schedule property by the
defendants and also handed over the original Will and
other documents pertaining to the suit schedule
property. Ex.P.2 is katha certificate and Ex.P.3 is
Holder katha extract of the schedule property standing
in the name of the plaintiff. Ex.P.4 is the evidence
affidavit of defendant No.2 herein adduced in
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O.S.No.7527/2016
O.S.No.2751/2017 and marked through confrontation
in the cross-examination of Dw.1.
11. In the cross-examination of the plaintiff, it
has been elicited that, plaintiff is Master Degree
holder and defendant No.1 is his paternal aunt.
Defendant No.2 is his sister's husband. He is aware of
the family affairs of the defendants. However, this
witness expressed ignorance regarding the suggestion
to the effect that, under the Will dated 24.05.1993
executed by K.Nanjappa, defendant No.1 has got life
interest and thereafter, defendant No.2 acquires
absolute interest upon the suit schedule property.
This witness further denied the suggestion that,
defendant No.2 is in possession of the suit schedule
property. He reasserts that, on 06.07.2002 both
defendants No.1 and 2 were the absolute owners of the
suit schedule property. During further cross-
examination, it has been elicited that, according to the
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O.S.No.7527/2016
recitals of the Will, defendant No.1-Smt.
Munivenkatamma is not empowered to sell the suit
schedule property. She was alive on 06.07.2002.
Defendant No.2- Gangadhar Naidu has got interest
over the suit property only after the death of defendant
No.1. He denied the suggestion that, plaintiff has got
executed Power of Attorney from the defendant No.1 on
16.11.1995 and also denied further suggestion that,
plaintiff has taken advantage of the innocence of the
defendants and got executed Sale Deed claimed by
him.
12. On the other hand, defendant No.2
examined himself as Dw.1 and reiterated the written
statement averments in his affidavit filed in lieu of
examination-in-chief and relied on the documents from
Ex.D.1 to Ex.D.4. Ex.D.1 is the photo-state copy of
the Will marked through confrontation in the cross-
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O.S.No.7527/2016
examination of Pw.1. Ex.D.2 is death certificate of
Nanjappa, executant of the Will, Ex.D.3 is the orders
passed in Writ Petition No.4686/2021, wherein the
Hon'ble High Court of Karnataka has permitted the
plaintiff to produce the certified copy of the Will
instead of original. Ex.D.4 is the certified copy of the
Will dated 24.05.1993.
13. In the course of cross-examination, Dw.1
has admitted the certified copy of his evidence adduced
in O.S.2751/2017 and hence, said document was
marked as Ex.P.4 with consent. It has been elicited
that, suit property is situated next to the house of
plaintiff. It was suggested that, plaintiff has been in
continuous peaceful and enjoyment of the suit
property from the date of execution of Sale Deed by the
defendants No.1 and 2 in the year 2002.
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O.S.No.7527/2016
14. Relying on the pleadings and evidence on
record, learned counsel for the plaintiff vehemently
argued that, plaintiff has placed cogent and
acceptable evidence to show his lawful title and
possession upon the suit property. He has placed
registered Sale Deed dated 06.07.2022 registered in
the office Sub-Registrar, Rajajinagar, Bengaluru
executed by defendants to establish acquisition of title
upon suit schedule property having purchased the
same for valuable consideration. Subsequent to the
Sale Deed, he has been put into physical possession of
the schedule property. Accordingly, revenue
documents are transferred in the name of the plaintiff.
To establish the same, he has produced katha
certificate and katha extract, which shows that, as on
the date of the suit, said property stands in the name
of the plaintiff. It is further argued that, the conduct of
the defendants in disputing the lawful title and
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O.S.No.7527/2016
possession of the plaintiff upon the suit property itself
establishes the interference attributable to the
defendants. On establishing the factum of possession
and interference by the defendants to the said
possession of the plaintiff upon the suit property,
plaintiff is entitled for the relief of permanent
injunction as sought for. With this line of arguments,
learned counsel prays for decretal of the suit.
15. On the other hand, learned counsel for the
defendants strenuously argued that, suit property was
originally belongs to the father of the defendant No.1
by name K.Nanjappa. During his life time, he has
bequeathed the suit property by creating the life
interest in favour of the defendant No.1 and thereafter
absolute interest upon the suit property in favour of
the defendant No.2. Such being the case, during the
life time of the defendant No.1, neither defendant
No.1 nor defendant No.2 have got absolute right upon
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O.S.No.7527/2016
the suit property to execute Sale Deed in favour of
any persons much less the plaintiff. Taking undue
advantage of the innocence and illiteracy of the
defendants, the plaintiff in the guise of execution of
General Power of Attorney for the purpose of obtaining
katha of the suit property in the name of the defendant
No.1, got concocted the alleged Sale Deed and
claiming title and possession upon the suit property. It
is further contention of the defendants that, till this
day, the defendants are in peaceful possession and
enjoyment of the suit property. The alleged Sale Deed
does not convey any semblance of right, title, interest
and possession of the suit property in favour of the
plaintiff. The suit is not maintainable in law and
deserves dismissal.
16. In the back drop of the rival submissions, this
court has given anxious consideration to the pleadings,
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O.S.No.7527/2016
oral and documentary evidence as well as admissions
elicited in the course of cross-examination of plaintiff and
defendants. As rightly argued on behalf of the plaintiff, the
oral testimony of the Pw.1 is in consonance with the
pleadings i.e., plaint averments. Further, he has produced
registered Sale Deed, the schedule of which tallies with
the suit schedule property. Further, from the date of Sale
Deed, the revenue documents mutated in the name of the
plaintiff, which is very much apparent from Ex.P.2-katha
certificate and Ex.P.3- katha extract. Moreover, the
recitals of the Ex.P.1-registered Sale Deed reads that, as
on the date of execution of the Sale Deed, plaintiff has
been put in possession of the suit property by the
defendants. Above all, Dw.1 has unequivocally admitted
in his evidence given in O.S.No.2751/2017 as per Ex.P.4
marked by way of confrontation regarding possession of
plaintiff. It is needless to say that, the document marked
through confrontation as party admits the same in his
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O.S.No.7527/2016
evidence, carries more evidentiary value. In the said
document, at page No.14 para No.3, defendant No.2
herein has given clear admissions that, till this day, he
has not paid kandayam to the suit schedule property and
also not received any notice from the revenue authority
directing him to pay the kandayam. It is further
admissions attributed to the defendant No.1 is that, suit
schedule property is in possession of the plaintiff since
2002. he along with defendant No.1-Munivenkatamma
have executed Sale Deed in respect of the suit property.
Since 2002, plaintiff /Bhogesh is utilizing the property to
park his vehicle. For better appreciation, the relevant
portion of the evidence of defendant No.1 in Ex.P.4
herein is culled out as under;
"ಇಇದನವರರಗಗ ದದವದಸಸತತನ ಬಗರಗ ಕಇದದಯ ಪದವತಸರರವವದಲಲ.
ದದವದಸಸತತನ ಕಇದದಯವನರನ ಯದರರ ಪದವತಸರತತದದದರರ ಎಇದರ
ವಚದರಸದದದರದ ಎಇದರರ ಇಲಲ. ದದವದಸಸತತನ ಕಇದದಯ ಪದವತಸಲರ
ನನಗರ ನರಗದಟದಸರ ಬಇದರರವವದಲಲ. ದದವದಸಸತರತ ಪಪತವದದ
ಭರಗದಗರದಶರವರ ಸದಸಧದನದಲಲದರ. 2002 ರಇದ ಪಪತವದದ
ಭರಗದಗರದಶರವರರ ದದವದಸಸತತನ ಸದಸಧದನದಲಲದದದರರ. 2002 ನರದಯ
ಇಸವಯಲಲ ಪಪತವದದ ಭರಗದಗರದಶರವರ ಹರಸರಗರ ನದನರ ಮತರತ ನನನ
22
O.S.No.7527/2016
ತದಯ ಮರನವರಇಕಟಮಮ ದದವದಸಸತತನ ಬದಬರತ ಕಪಯಪತಪ
ಬರರಯಸಕರಗಟಟರರತರತದವರ. ನದನರ 1978 ರಇದ ಹಳರಯ ಮದದಪಸಸ
ರಸರತಯ ಕರ.ಆರಸ. ಪವರಇ ಬಳಯ ಮದಡಹಳಳಯಲಲ ವದಸವದರದದನರ. 2002
ನರದಯ ಇಸವಯಇದ ಪಪತವದದ ಭರಗದಗರದಶರವರರ ದದವದಸಸತತನಲಲ ಅವರ
ವದಹನ ನಲರಗಡರ ಮದಡರತತದದದರರ ಎಇದರರ ನಜ."
From this part of evidence, it is crystal clear that,
defendants have unequivocally admitted execution of
the Sale Deed in respect of the suit property in favour
of the plaintiff for valuable consideration and also
admitted his possession over the said properties since
from the date of Sale Deed, in judicial proceedings
before the competent court of law. There is absolutely
nothing on record to disbelieve or dislodge the material
admissions of the defendant No.2.
17. In a suit for injunction simplicitor only two
basic points arises for consideration of the court.
Firstly, the possession of the plaintiff upon the suit
property as on the date of the suit and the alleged
interference by the defendants to said possession.
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O.S.No.7527/2016
From the discussions made supra, it is evident that,
plaintiff has established both said factums with cogent
and acceptable evidence. Per contra, defendants are
not successful in demolishing the case of the plaintiff.
The contents of the defendants regarding their
marketable title upon the suit property need not
requires detail consideration of this court for effective
adjudication of this suit for permanent injunction. In
that view of the matter, this court not inclined to go
in detail into the aspect of title of the plaintiff upon the
suit property, which is not at all warranted. The
conduct of the defendants in disputing the plaintiff's
title and possession of the suit schedule property after
lapse of 14 years from the date of Sale Deed, itself
establishes the alleged interference by the defendants
to the plaintiff's possession of the suit property. Hence,
Issue No.1 and 2 under consideration are answered in
the Affirmative.
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O.S.No.7527/2016
18. ISSUE NO.3: This suit is filed by the
plaintiff against the defendants for the relief of
permanent injunction restraining the defendants or
P.A. holder, Assignees, Agents or workers anybody
acting on behalf of the defendants from interfering
into the peaceful possession of the plaintiff in respect
of the suit schedule property. To establish his case,
plaintiff has placed oral testimony and documents
supporting the claim. He has also placed reliance on
the admitted material document at Ex.P.4, wherein
defendant No.2 has given unequivocal admissions
regarding execution of the Sale Deed in respect of the
suit property in favour of the plaintiff and his
uninterrupted possession from the date of Sale Deed.
Consequently, this court has no hesitation to held
that, plaintiff has proved his possession of the suit
schedule property as on the date of the suit. The
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O.S.No.7527/2016
conduct of the defendants in disputing the sale deed
and possession of plaintif, itself establishes the
interference. Hence, plaintif is entitled for the relief of
permanent injunction as sought for. Accordingly, this
Issue No.3 under consideration is answered in the
Affirmative.
19. ISSUE NO.4:- In view of reasons assigned
in Issues No.1 to 3, this court has arrived at an
irresistible conclusion that, plaintiff is entitled for the
relief of permanent injunction against interference by
the defendants. Having regard to the relationship of
the parties and the nature of the suit, both parties are
directed to bear their respective costs. Hence, this
court proceed to pass the following;
ORDER
Suit of the plaintiff is decreed.
The defendant No.2 or P.A. holder, Assignees, Agents or workers or 26 O.S.No.7527/2016 anybody acting on behalf of the defendants are hereby restrained by way of permanent injunction from interfering with the peaceful possession of the plaintiff in respect of the suit schedule property.
Suit against defendant No.1 is abated.
Parties shall bear their costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, script typed by her, corrected and then pronounced by me in open court on this the 2nd day of January 2023).
(KALPANA M.S.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.
27O.S.No.7527/2016 SCHEDULE PROPERTY All that piece and parcel of the property No.8, Municipal No.123, in Kethamaranahalli Sy.No.141/2B, Ward No.15, PID No.15-44-123, measuring East West and northern side 20 ft, towards southern Manjunath Nagar, 1st Phase, 1st Stage, WOC Road, Rajajinagar, Bengaluru-10, and bounded on:
East by : Property belongs to Deveramma, West by : Property belongs to plaintiff, North by : 4th Main Road, South by : Remaining property.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF:
Pw.1 Bhogesh WITNESSES EXAMINED FOR THE DEFENDANTS:
Dw.1 R.Gangadhar Naidu DOCUMENTS MARKED FOR THE PLAINTIFF:
Ex.P.1 Certified copy of Sale Deed dated 06.07.2002 Ex.P.2 Katha Certificate Ex.P.3 Holder Khatha Extract Ex.P.4 Certified copy of evidence of Dw.1 in O.S.2751/2017.28
O.S.No.7527/2016 DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D.1 Certified copy of Will dated 24.05.1993 executed by K.Nanjappa Ex.D.2 Certified copy of the death certificate of K.Nanjappa Ex.D.3 Certified copy of the orders passed in W.P.No.4686/2021 Ex.D.4 Certified copy of the Will dated 24.05.1993.
(KALPANA M.S.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.
29 O.S.No.7527/2016 30 O.S.No.7527/2016 Judgment pronounced in open court, vide separate Judgment ORDER Suit of the plaintiff is decreed.
The defendant No.2 or P.A. holder, Assignees, Agents or workers or anybody acting on behalf of the defendants are hereby restrained by way of permanent injunction from interfering with the peaceful possession of the plaintiff in respect of the suit schedule property.
Suit against defendant No.1 is abated.
Parties shall bear their costs.
Draw decree accordingly.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65) BENGALURU CITY.