Bangalore District Court
T.H. Siddalingappa S/O Late ... vs M. Manjunath S/O Late Mariyappa on 10 November, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.25165/2009
Dated this 10th day of November 2021
Plaintiff:- 1. T.H. Siddalingappa S/o Late Honnashettappa,
Aged about 66 years, R/at Thaverekere Village,
Thavarekere Hobli, Bengaluru South Taluk,
Rep: by his GPA Holder,
V. Maddaiah S/o Late Venkateswamappa,
Aged about 65 years, R/at Arehalli Village,
Uttarahalli Hobli, Subramanyapura Post,
Bengaluru South Taluk.
(Rep by Sri. HVPG., Advocate)
V/S
Defendant/s: 1. M. Manjunath S/o Late Mariyappa,
Aged about 32 years, R/at Arehalli Village,
Uttarahalli Hobli, Subramanyapura Post,
Bengaluru South Taluk.
(Rep by Sri. KTD., Advocate)
Date of Institution of the suit 27/01/2009
Nature of the (Suit or pro-note, suit
Mandatory & Permanent
for declaration and possession, suit
for injunction, etc.)
Injunction
Date of the commencement of
recording of the Evidence.
11/04/2016
2
Judgment OS.No.25165/2009
Date on which the Judgment was 10/11/2021
pronounced.
Total duration Year/s Month/s Day/s
12 09 13
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:JUDGMENT:
The plaintiff filed suit against defendant for mandatory & permanent Injunction.
2. The brief facts of plaint averments is as under:
The GPA Holder of plaintiff submits that one Ananth is owner in possession and enjoyment of the suit schedule 'A' property mentioned below:
:SUIT SCHEDULE 'A' PROPERTY:
All that piece and parcel of the property bearing Kaneshumari No.8 and 10 totally measuring East to West 35 feet and North to South 30 feet situated at 3 Judgment OS.No.25165/2009 Arehalli Village, Uttarahalli Hobli, Bengaluru South Taluk bounded by East:Road, West:Property including road belong to Thimmakka, North: Foot path, South: Kaneshmari No.11.
3. The GPA holder of plaintiff further submits that Ananth sold suit schedule property to plaintiff under registered sale deed on 23/03/1994, since then plaintiff is in possession and enjoyment of the suit schedule property as absolute owner and also katha of suit schedule property mutated in the name of the plaintiff in Uttarahalli Grama Panchayath and plaintiff is paying tax of the suit schedule property. Further Uttarahalli Grama Panchayatth is included in BBMP and plaintiff name entered in the revenue records of BBMP records in respect of suit schedule property and BBMP issued katha certificate of suit schedule property in the name of the plaintiff. When such being the case the defendant along with his men and materials came near the suit schedule property on 20/01/2009 and made attempt to put up construction 4 Judgment OS.No.25165/2009 in the suit schedule property, then the plaintiff and Power of Attorney Holder of the plaintiff stopped the illegal act of the defendant. Then the defendant left the spot proclaiming that he will come again and forcibly take possession of the suit schedule property. Then he approached the jurisdictional police station and police received the complaint and given the endorsement directing the plaintiff to approach the Civil Court as the dispute involved is civil in nature.
4. The GPA holder of the plaintiff further submits that the alleged predecessor of title of defendant namely Nallappa, his wife Chinnamma and Mahalakshmi neither the owners nor in possession or having title in respect of the alleged property, wherein katha No.3/2-5, katha No.6, property No.3/3 and as such the numbers, extent, boundaries and property described therein in the written statement and the alleged records and documents relied upon by the defendant is all false, created, fictitious, imaginary and fraudulent document. The defendant is claiming 5 Judgment OS.No.25165/2009 the suit schedule property belonging to him, on which the defendant has no right, title and interest. That the defendant without having right, title, interest, much less possession over the suit property illegally and forcibly and unauthorizedly in violation of injunction order trespassed and encroached to an extent of East to West 35 feet and North to South 16' towards southern side of suit schedule property and constructed 5' height and 30' length cement hallow block compound wall on 12/10/2011 and 13/10/2011 when the power of attorney holder of the plaintiff went to the spot, by that time said acts was already completed and he questioned the defendant on which defendant abused and threatened him with dire consequences and hence the complaint is lodged in Subramanyapura Police Station who instead of registering the FIR or initiating action against the defendant issued endorsement on 27/10/2011 to approach the civil court as the matter is of civil nature. The defendant has no license, permission or sanction to put up compound and said 6 Judgment OS.No.25165/2009 encroached portion in the schedule property described as schedule 'B' property mentioned below:
:SUIT SCHEDULE 'B' PROPERTY:
All the piece and parcel of the property bearing Kaneshumari No.8 and 10 measuring East to West 35 feet and North to South 15 feet with 5 feet height, 30 feet length cement hollow block compound wall situated at Arehalli Village, Uttarahalli Hobli, Bengaluru South Taluk out of the aforesaid property. The defendant has to deliver the possession of the 'B' schedule property by removing the compound wall at his expenses.
5. The GPA holder of plaintiff further submits that cause of action to file the suit arose on 20/01/2009 when the defendant along with his men and material came near the suit schedule property and attempted to put up the construction. The plaintiff prays to decree the suit for mandatory injunction directing the 7 Judgment OS.No.25165/2009 defendant to deliver the vacant possession of the suit schedule 'B' property after demolishing the compound wall therein at his cost and in the alternative allow the plaintiff to demolish the compound wall at the cost of the defendant. The plaintiff further prays to decree the suit for permanent injunction restraining the defendant, his agents, followers, assigns, etc., or anybody claiming under or through him from interfering with the peaceful possession and enjoyment in the suit schedule property. The plaintiff prays to award costs of the suit.
6. The defendant filed written statement submitting that the suit of the plaintiff is not maintainable and suit is hit by Order 2 Rule 3 of CPC in as much as the power of attorney holder has no semblance of right to file the present suit or to prosecute the same. The defendant denied the ownership of the plaintiff over the suit schedule property and also denied the entire plaint allegations. The defendant further submits that he is owner in possession of the premises bearing Khatha No.6, House List 8 Judgment OS.No.25165/2009 No.3/2 situated at Arehalli Village measuring East to West 22 feet and North to South 40 feet bounded by East: 6 feet passage, West: Gummaiah's land i.e., property of brother of the power of attorney holder of the plaintiff, North: Road, South: Passage. The defendant having constructed 4 squares A.C. Sheet house on the said property. The defendant having put in possession by his vendor and is in peaceful possession and enjoyment of the same from the date of purchase, earlier to that defendant vendor was in possession. The defendant in order to identify his property is producing the documents, as such the adjacent properties which may kindly be looked into. Thereby the property of defendant is identifiable and which is now falsely claimed by the power of attorney holder of the plaintiff as schedule property. That one Ananth was owner in possession of the house property No.8 and 10 measuring 35 feet X 30 feet with tile roofed house as alleged in para-3 of the plaint is false. The said Ananth sold property to plaintiff and the plaintiff has been in possession is false and 9 Judgment OS.No.25165/2009 incorrect, when there is no such property, the allegations are false and imaginary. There is no property as described in the schedule to the plaint. That Gramapanchayath assessed the property, collecting the tax is again based on concocted false documents the same cannot be relayed upon for any of the purposes. The certificate issued by the BBMP is again based on concocted documents got prepared by the power of the attorney of the plaintiff in conveyance with the some erred officers on the basis of the imaginary sale deed dated 23/03/1994. The said documents are neither record the title nor the possession and the same cannot be looked into. The plaintiff removed any alleged construction and property remained as vacant site which is the schedule property is false. The allegation that on 20/01/2009 defendant came near property and attempted to put up construction on schedule property is false and incorrect. The construction on the property of defendant is in existence from 2005. There is no semblance of truth in the allegation of attempted to make any 10 Judgment OS.No.25165/2009 construction on the non-existing schedule property. The alleged endorsement alleged to be issued by the police is again one more criminal act of the power of attorney holder of the plaintiff. The allegation that defendant has no manner of right, title and interest or possession in the schedule property is false.
7. The defendant further submits that one Nallappa was owner of huge property including property bearing khatha No.3/2-5 and also khatha No.6, property No.3/3. The said Nallappa died leaving behind his wife Chinnamma, who succeeded to said properties. Chinnamma sold khatha No.3/2-5 in favour of Mahalakshmi on 11/04/2001. The said Mahalakshmi in turn sold said property to defendant on l1/10/2004. The defendant also purchased khatha No.6, property No.3/3 from Chinnamma under registered sale deed dated 06/06/2003. The defendant has been in possession and enjoyment of the said two properties from the date of purchase as absolute owners by transferring the khatha into his name. The plaintiff power of attorney holder who was not happy 11 Judgment OS.No.25165/2009 with the defendant having purchased the said properties, has started giving pinpricks in one way or the other in order to harass the defendant. The present suit is one such attempt by the plaintiff. The defendant is within boundaries and measurement of property purchased by him. He never indulged in any act of trespass or interference with any other property let alone the alleged property of the plaintiff. The court fee paid by plaintiff is insufficient and suit is not properly valued and there is no cause of action to file the suit and alleged cause of action is false. The defendant prays to dismiss the suit.
8. The plaintiff amended the plaint and inserted para No.4(a) and (b) in his plaint which is already discussed above. Thereafter the defendant filed additional written statement that the amended prayer is unmeaning and not in any way maintainable both on law and on facts. The amended prayer is barred by law of limitation. The valuation made and court fee paid are not proper an issue may kindly be raised on the point of valuation and Court 12 Judgment OS.No.25165/2009 Fee in regard to amended prayer. There is no existence of suit 'A' schedule property as described in schedule to the plaint so also schedule 'B' property as alleged in the plaint. There are no properties as described in the schedule to plaint, suit is liable to be rejected U/o 7 Rule 11(d) of CPC. Without Prejudice to above the suit as brought is not maintainable in as much as suit is hit by non joinder and miss joinder of necessary parties and cause of action, on this ground also the suit is liable to be dismissed.
9. The defendant further submits that the allegation made in para No.4(a) of plaint that the defendants vendor viz., Nallappa, his wife Chinnamma and their granddaughter Mahalakshmi had no title or possession over katha No.3/2-5 or Katha No.6, property No.3/3 is false. The said persons had every right, title and interest on the said properties. The further allegation that numbers, extent boundaries of property as described in the Written Statement as well as in the records are not in existence are false. On the contrary that very plaint schedule property is 13 Judgment OS.No.25165/2009 imaginary, non-existing and based on concocted documents, concocted by Plaintiff and his GPA Holder, V. Maddaiah, who was chronic litigant and litigating on the property of defendant from 2005 by filing false and frivolous suits in his name and in the name of third parties by creating concocted documents. The documents relayed upon by defendant are all genuine and valid one. On the contrary plaintiff at the instigation of GPA Holder filed this false case based on created, fictitious, imaginary and concocted fraudulent documents by misusing the concocted records in order to harass the defendant and somehow to knock off the valuable property of defendant. It is false that plaintiff is owner of suit schedule property.
10. The defendant further submits that the allegation made in para 4(b) of the plaint that knowingly fully well about the alleged title and possession of the plaintiff as well as injunction order forcibly by violation of injunction order trespassed and encroached on an extent of East to West: 35 feet and North to 14 Judgment OS.No.25165/2009 South 15 feet towards Southern side of suit schedule property on 12/10/2011 and 13/10/2011 is false. The alleged GPA holder went to spot at that time, the act of putting up compound wall was already completed is false. The endorsement issued by police is not within his knowledge. The question of license, permission and sanction are nothing to do with the plaintiff and allegation of encroachment is false. The alleged 'B' Schedule Property is again an imaginary property. There was no property, there was no encroachment, question of declaration of delivery o possession of 'B' Schedule property does not arise. The prayer of declaration of possession by way of mandatory injunction is unmeaning. The defendant not bound to demolish compound. The defendant who is owner of katha No.3/2-5 having purchased the same from Smt. Mahalakshmi as early as on 11/10/2004 along with property bearing khatha No.6 on 06/06/2003 and compounded the property and also constructed an AC sheet house also take power connection as early as in the year 2005. It is the GPA holder of 15 Judgment OS.No.25165/2009 the plaintiff who made attempt to demolish the compound and house in the year 2009, which act was resisted by the defendant and on such, resistance the GPA holder man handled and beaten the defendant and caused head injury. The defendant prays to dismiss the suit with costs.
11. On the basis of above pleadings following Issues and Additional Issues are framed:-
:ISSUES:
(1) Whether plaintiff proves that he is in lawful possession and enjoyment of suit schedule property as on date of suit?
(2) Whether plaintiff proves interference in to his possession by defendant?
(3) Whether plaintiff is entitled to decree of Permanent Injunction as sought? (4) What order or decree?16
Judgment OS.No.25165/2009
:ADDITIONAL ISSUES:
1) Whether the plaintiff proves that the defendant in utter violation of Injunction Order trespassed and encroached to an extent of East to West 35 feet. North to South 15 feet towards Southern side in the suit schedule property and constructed 5 feet height 30 feet length cement hallow block compound wall on 12/10/2011 and 13/10/2011?
2) Whether the plaintiff proves that he is entitled to the relief of Mandatory injunction directing the defendant to deliver vacant possession of suit schedule 'B' property be demolishing the compound wall?
12. The GPA Holder of the plaintiff examined as PW.1 and marked documents at ExP1 to ExP18. The defendant examined as DW.1 and marked the documents ExD1 to ExD54.
13. The plaintiff counsel and defendants counsel argued. Perused the records.
14. My findings to the above Issues are as under:- 17
Judgment OS.No.25165/2009
Issue No.1: In Negative
Issue No.2: In Negative
Issue No.3: In Negative
Addl. Issue No.1 : Negative
Addl. Issue No.2 : Negative
Issue No.4: See final order for following:
:REASONS:
15. Issues No.1 to 3 & Addl. Issue No1 & 2 :
The GPA holder of plaintiff M. Prakash S/o Late Maddaiah filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that he has filed the above suit against the defendant for Permanent Injunction. One R. Ananth being owner in possession enjoyment of the House property bearing Kaneshmari No.8 being the owner in possession and property bearing Kaneshmari No.8 and 10 totally measuring East to West 35 Feet and North to South 30 Feet with collapsed tile roofed house situated at Arehalli Village, Uttarahalli Hobli, Bangalore 18 Judgment OS.No.25165/2009 South Taluk had sold in favour of plaintiff under Registered Sale Deed dated 23/03/1994. Ever since the date of purchase he has been in possession and enjoyment and exercising the rights of full and absolute ownership in and over the said property. Based on the sale deed, purchase, ownership, possession and enjoyment, the then Uttarahalli Grama Panchayath assessed the said property for the purpose of collecting Tax and effected Revenue Records in his name. Plaintiff has been paying tax to the said Authority. In view of the amalgamation, now the Uttarahalli Grama Panchayath is abolished and its area including the said property has vested with the B.B.M.P. The B.B.M.P. issued certificate certifying that plaintiff name is entered in the Revenue Records and the said property comes within the BBMP jurisdiction and Khatha Certificate will be issued after the orders of the Government. However the B.B.M.P. has also been collecting the taxes from him. The plaintiff had removed the said construction and the said property was remained as vacant site which was 19 Judgment OS.No.25165/2009 described as the Schedule Property on the date of institution of the suit. When such is the actuality and factuality, the defendant along with his men and materials came near the schedule property on 20/01/2009 and made an attempt to put up construction in the schedule property and at which the plaintiff, his father and himself who were there at the spot stopped their illegal acts. Thereby they left the spot proclaiming that they would come again within week and take forcible possession and put up construction. The plaintiff through them immediately approached the police who though received the said complaint but issued an endorsement directing to approach the Civil Court as the dispute involved is Civil in nature. That the alleged predecessor in title of the defendant namely Nallappa, his wife Chinnamma and Mahalakshmi neither the owners nor in possession or having title in respect of the alleged property bearing Khatha No.3/2 5, Khatha No.6, Property No.3/3 and as such the numbers, extent, boundaries and property 20 Judgment OS.No.25165/2009 described in the written statement and the alleged records and documents relied upon by the defendant is all false, created, fictitious, imaginary, unconcerned, collusive, fraudulent, misrepresented, misused, without any basis and based on such records and documents, the defendant is claiming in respect of the suit schedule property which absolutely belong to the plaintiff. Hence defendant neither the owner nor in possession or having title in respect of his alleged property or to the suit schedule property. The defendant without having any manner of right, title, interest, much less possession in and over the schedule property and knowingly fully well with regard to the injunction order but illegally and forcibly, unauthorizedly and in utter violation of the injunction order tress passed and encroached an extent of East-West 35 Feet and North-South 15 Feet towards Southern side in the suit schedule property and constructed a 5 Feet height 30 Feet Length cement hollow block compound wall on 12/10/2011 and on 13/10/2011 when his father and himself 21 Judgment OS.No.25165/2009 went to the spot but by that time said act was already completed and his father and himself questioned the defendant and at which the defendant abused him and his father threatened with dire consequences and thereby lodged complaint in Subramanyapura Police who instead of registering a F.I.R. or initiating any action against the defendant have issued an endorsement on 21/10/2011 stating that the said complaint registered in C.Mis and called upon the defendant to the Police Station and enquired him and the dispute is civil in nature directed to sort out the remedy before the Civil Court. The defendant has no licence, permission or sanction to put up compound. The said encroached area is described as the 'B' Schedule Property. The defendant in addition to undergo punishment for violation of the injunction order is also liable to deliver the possession of the 'B' Schedule Property by removing the said compound wall at his expenses. That in view of the said encroachment subsequent to filing of the above case, the Plaintiff has no other option except to seek for declaration by way of 22 Judgment OS.No.25165/2009 Mandatory Injunction directing the defendant to demolish the compound wall and to deliver the possession of the 'B' Schedule Property to the Plaintiff. That the defendant has no manner of right, title, interest, much less possession in and over the schedule property. The plaintiff is having prima-facie materials like sale deed, Khatha and tax paid receipts which clearly evidences that the plaintiff is the owner in possession of the schedule property. The PW.1 prays to decree suit as prayed in the plaint. In support of oral evidence PW.1 marked ExP1 to ExP18.
16. The defendant M. Manjunath S/o Late Mariyappa filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that there is no property measuring East to West 35 feet and North to South 30 feet with Kanreshmari No.8 & 10 in Arehalli Village. The boundaries of the suit schedule property and its existence are imaginary. That T.H. Siddalingappa was the owner of schedule property and that T.H. Siddalilngappa executed GPA to V. Maddaiah are false. He had not seen T.H. 23 Judgment OS.No.25165/2009 Siddalingaiah at any point of time. There is no person like T.H. Siddalingaiah, resident of Tavarakere Village. The say of plaintiff that R. Ananth was owner of Kaneshmuari No.8 & 10 with the measurement as stated in para No.3 of the plaint are incorrect. R. Ananth was not owning any land in Arehalli Village, Uttarahalli Hobli. The sale deed is concocted one, created by V. Maddaia.
17. The DW.1 further deposed the evidence that T.H. Siddalingaiah is not real person, the GPA in favour of V. Maddaiah and his son are created by V. Maddaiah and his son/PW.1. The say of plaintiff that they were in possession of any property sold as Kaneshuinari No.8 &10 is false. The further say of the plaintiff that on 20/01/2009, he made attempt to put up construction in the imaginary schedule property is false. There was no any proclamation or forcible possession as alleged. The say of plaintiff that Nallappa, Chinnnamma and Mahalakshmi are not the owners, and they were not in possession of khata No.3/-3, Katha No.6, property No.3/3 is false. They are absolute owners of 24 Judgment OS.No.25165/2009 the above said numbers and measurements. There is no suit property as such, he is cannot claim is not correct. The compound was constructed much before the date of suit within the boundaries and measurement of his property and not in any other imaginary property of plaintiff. The say of plaintiff that he put up compound wall on 12/10/2011, on 13/10/2011 over suit schedule property is false. The alleged threat as alleged is also false. The endorsement is not known to him. The plaintiffs are not in possession. The relief sought for are unmeaning. The plaintiffs were and are not in possession of any property at Arehalli village. Hence the plaintiffs are not entitle for any relief. That he is owner of property bearing Katha No.6 House List No.3/3 of Arehalli Village measuring East to West 22 feet and North to South 40 feet bounded by East:6 feet passage, West:Gummaiah's land, North:
Road, South: Passage.
18. The DW.1 further deposed evidence that said property having 4 Squares AC Sheet House. He is in peaceful possession 25 Judgment OS.No.25165/2009 and enjoyment of the said property. That, the very same Power of Attorney holder of plaintiff filed two more suits ie, OS.No.111/2005 and OS.No.9012/2007 for similar relief and again he filed suit as power of attorney holder to the same property. The very object of the Power of Attorney holder of plaintiff is to harass him and to extract money or to grab his property. There was no any property as shown in the schedule to the plaint. The say of plaintiff that he forcibly encroached on portion of property after filing of this suit is false. There was no property, hence he encroached the property is false. The DW.1 prays to dismiss the suit. In support of oral evidence DW.1 marked ExD1 to ExD54.
19. The defendant counsel while arguing relied upon the decisions reported in AIR 2006 Supreme Court 1971 Anil Rishi V/s. Gurubaksh Singh 26 Judgment OS.No.25165/2009 (A) Evidence Act (1 of 1872), Ss. 101, 102, 111 - Burden of proof - Suit for declaration that sale deed was forged, fabricated- Defendant disputing allegations - Reframing issue as to whether deed is valid and thereby putting burden of proof on defendant - Not proper in absence of proof of fiduciary relationship.
AIR 2008 Supreme Court 2033 Ananthula Sudhakar V/s. Budhi Reddy (Dead) by Lrs and others.
(A) Specific Relief Act (47 of 1963), S.38- Prohibitory injunction relating to immovable property - suit for - scope of.
AIR 2009 Supreme Court 2966 T.K. Mohammed Abubucker (D) Thr. L. Rs. And others V/S P.S.M Ahmed Abdul Khader and others (B) Specific Relief Act (47 of 1963), S.6- Limitation Act (36 of 1963), Arts.64, 65 -
Suit for declaration of title - Sale deed and partition deed executed hardly three 27 Judgment OS.No.25165/2009 years prior to suit - Not sufficient to establish title.
C) Evidence Act (1 of 1872), S.101 - Suit for declaration of title and possession -
Burden of proof is on plaintiff to make out his title and entitlement to possession
-He cannot succeed on any alleged weakness in title or possession of defendant.
20. The burden is on plaintiff to prove that he is lawful owner and in peaceful possession and enjoyment of the suit schedule property as on the date of suit and defendant is interfering in his possession and enjoyment in the suit schedule property and also after filing of this suit the defendant by violating the injunction order trespassed and encroached to an extent of East to West 35 feet and North to South 15' towards southern side of the suit schedule property and constructed 5 feet height and 30 feet length wall on 13/10/2011 and he is entitled for recovery of said 'B' 28 Judgment OS.No.25165/2009 schedule property from the defendants by demolishing the wall constructed in the said property.
21. The plaintiff examined as PW.1 and deposed the evidence as discussed above and in support of oral evidence marked the documents ExP1 to ExP18. The ExP1 is original registered sale deed dated 23/03/1994 executed by R. Ananth S/o S. Ramanathan in favour of T.H. Siddalingappa S/o Honnashettappa i.e., plaintiff relating to the properties bearing Khaneshumari No.8 and 10 measuring East-West 35 feet and North-South 30 feet of Arehalli Village, Uttarahalli Hobli,. Bangalore North Taluk, wherein there is dilapidated tiled house measuring one square. The ExP2 is DCB register extract of the Khaneshumari No.8 & 10 standing in the name of Ananth S/o S. Ramanathan for the year 1995-96. The ExP3 is Confirmation Letter issued by Assistant Revenue Officer, Subramanyapura Sub Division, BBMP, Bengaluru stating that site No.8, property No.8 & 10 katha No.10/8 of Arehalli Village in the name of T.H. Siddalingaplpa is comes within the jurisdiction of 29 Judgment OS.No.25165/2009 BBMP. The ExP4 to ExP10 are tax paid receipts by plaintiff relating to said katha No.10. The ExP11 is encumbrance certificate for the period from 01/06/1989 to 03/06/2003 wherein there is entry regarding sale of Khaneshumari No.8 & 10 by R. Ananth in favour of plaintiff T.H. Siddalingappa on 23/03/1994. The ExP12 is endorsement given by Subramanyapura Police Station on the complaint of plaintiff P.H. Siddalingappa against Manjunatha S/o Mariyappa illegally constructing in Kanesumari No.8 & 10 and the police endorsed that the matter is civil in nature and same, they may be approached before the Court. The ExP13 is notarised Special Power of Attorney executed by plaintiff Siddalingappa S/o Honnashettappa and his wife Rudranamma and daughter T.S. Pushpavathamma in favour of E. Muddaiah relating to the suit schedule property. The ExP14 is certified copy of the Judgement in CC.No.13072/2009 of II ACMM Court, Bengaluru which is registered by Subramanyapura Police Station against Muddaiah and others for the offence 30 Judgment OS.No.25165/2009 punishable U/s 323, 236, 427, 504, 506 R/w Sec.149 of IPC on the complaint of present defendant Manjunatha and in the said case the said accused were acquitted. In ExP15 three photographs are marked as they belongs to the suit schedule property and ExP16 is CD of the said photographs. The ExP17 is endorsement given by Subramanyapura Police Station on the complaint of Muddaiah stating that the matter is of Civil in nature and approach the Court. The ExP18 is Special Power of Attorney executed by the T.H. Siddalingappa S/o Honnashettappa and his wife Rudranamma and T.S. Pushpavathamma in favour of Prakash M S/o Late Muddaiah relating to the suit schedule property on 12/11/2014.
22. The defendant No.1 examined as DW.1 and deposed evidence as discussed above and marked ExD1 to ExD54. The ExD1 and ExD2 photographs marked by confrontation to PW.1 as they belongs to suit schedule property. The ExD3 is original sale deed dated 06/06/2003 regarding sale of property bearing Katha 31 Judgment OS.No.25165/2009 No.6 property No.3/3 of Arehalli Village, Uttarahalli Hobli, Bangalore South Taluk measuring East to West 22 feet and North to South 40 feet by Chinnamma W/o Nallappa in favour of defendant M. Manjunath S/o Mariyappa. The ExD4 & ExD5 are the certificates issued by BBMP Bengaluru, wherein name of the defendant entered to the properties No.3/3 of Arehalli Village. The ExD6 & ExD7 are the DCB Register Extract relating to the No.3/3 of Arehalli Village property wherein name of defendant appeared as owner of the said property. The ExD8 to ExD12 are tax paid receipts and ExD13 & ExD14 are tax assessment registers of the property No.313 of Arehalli Village for the year 2003-04 and 1981-1982. The ExD15 & ExD16 are tax paid receipts. The ExD17 is copy of complaint given by defendant in ISRO Layout Police Station against stolen of Electricity Meter relating to the RR.No.BS5LG50679. The ExD18 is bill regarding purchase of the electric meter. The ExD19 to ExD21 are two electricity bills and one receipt and ExD22 is Gas Cylinder 32 Judgment OS.No.25165/2009 receipt. The ExD23 is copy of complaint given by the defendant against Muddaiah, Gummayya, Chandra, Prakash, Srinivasa, Suresh and Shekar for alleging about assault and life threatenment in Subramanyapura Police Station, Bengaluru. The ExD24 to 27, ExD31 are photographs and Bill and Ex.D30 is C.D marked as the said photographs taken while assault made by persons Muddaiah, Gummayya, Chandra, Prakash, Srinivasa, Suresh and Shekar on him. The ExD32 to 34 are photographs marked as they belongs to suit schedule property. The Ex.D35 to ExD37 are the electricity bills and receipts. The ExD38 is certified copy of the sale deed dated 04/11/1992 regarding sale of old property No.6, 7 & 8 and new No.5 & 6 of Uttarahalli Village, Bengaluru South Taluk. The ExD39 is certified copy of the partition deed dated 06/09/1931 taken place between Vankatappa and Nallappa relating to khaneshumari No.6, 7 & 8 and other properties of their family. The ExD40 is complaint given by Maddaiah against the defendant in Subramanyapura 33 Judgment OS.No.25165/2009 Police Station for assaulting and also illegally trespassing in the property belonging to him. The ExD41 is statement of defendant Manjunatha recorded by the Police. The ExD42 is tax paid receipt by Chinnamma. The ExD43 is Encumbrance Certificate for the period from 01/06/1989 to 31/03/2004, wherein there is entry regarding sale of site No.3/3 khata No.6 by Chinnamma in favour of Manjunatha. The ExD44 to ExD49 are certified copies of order sheet, certified copy of the plaint and written statement, certified copy of the order on I.A and certified copy of IANo.5 its objection. The ExD50 is endorsement issued by Assistant Revenue Officer, Uttarahalli Sub Division, BBMP, Bengaluru on application of M. Manjunatha. The ExD51 is copy of application given by defendant to the Assistant Revenue Officer, Uttarahalli, Bengaluru for endorsing seal on the tax paid receipt. The ExD52 to ExD54 are the tax paid receipts by defendant relating to property No.3/3 of Arehalli Village, Bengaluru. 34
Judgment OS.No.25165/2009
23. The GPA holder of plaintiff contention that plaintff is the owner of the suit schedule property and he purchased the suit schedule property from Ananth and he is in possession and enjoyment of the suit schedule property. The P.W-1 produced and marked ExP1 registered sale deed dated 23/03/1994 executed by R. Ananth S/o S. Ramanathan in favour of plaintiff in respect of the plaint schedule property. The P.W-1 produced and marked ExP2 DCB Register Extract to show that the name of Ananth was rounded off and name of plaintiff is appeared in the said register. But the plaintiff has not produced the document of the suit schedule property standing in the name of his vendor R. Ananth S/o S. Ramanathan relating to the suit schedule property. Further the plaintiff has not clarified how R. Ananth S/o S. Ramanathan obtained the suit schedule property. Further the plaintiff has not produced the katha extract and katha certificate issued by the BBMP to show that his name is appeared in the concerned revenue records. Further the plaintff allegation that, the defendant 35 Judgment OS.No.25165/2009 has encroached the portion of the suit schedule property and constructed 13 feet height 30 feet length cement hollow block compound wall on 12/10/2011 and 13/10/2011 during the pendency of the suit, that portion is suit schedule 'B' property. But to prove the said alleged encroachment by the defendant, the plaintiff has not produced any specific documents. Further the plaintiff has not made any effort to get measure the suit schedule property to prove the alleged encroachment by the defendant. On this aspect the defendant counsel cross-examined the PW.1, wherein the PW.1 deposed evidence that "In order to substantiate my contention that, defendant had encroached the suit schedule property, I will lead evidence of my witnesses." But the GPA holder of plaintiff has not examined any witnesses and also not marked any documents to prove the alleged encroachment by the defendant. On the contrary the defendant examined as DW.1 and deposed the evidence as discussed above and marked the documents and denied the 36 Judgment OS.No.25165/2009 allegations of the plaintiff that the plaintiff purchased the suit schedule property from R. Ananth and in possession and enjoyment of the said property. Further there is no property measuring East to West 35' and North to South 30' with Kanesumari No.8 and 10 of Arehalli Village and boundaries of the schedule property and its existence are imaginary. The defendant contention that he is the owner of the katha bearing No.6 house No.3/3 of Arehalli Village measuring East to West 22' and North to South 40' and in possession and enjoyment of the schedule property.
24. The DW1 marked the document ExD3 sale deed dated 06/06/2003 executed by Chinnamma W/o Nallappa in favour of defendant in respect of khatha No.6 property No.3/3 measuring East to West 22' and North to South 40' of Arehalli Village and ExD4 is certificate issued by BBMP mentioned that the said property is in the name of defendant. Further the DW.1 marked The ExD14 DCB Register Extract for the year 1981-1982 37 Judgment OS.No.25165/2009 wherein there is entry regarding name of defendant vendor Nallappa and others and his wife Chinnamma relating to katha No.6 of Arehalli Village. Further the ExD39 is certified copy of the partition deed dated 06/09/1931 regarding partition between defendant vendor Nallappa and his brothers relating to their family properties No.6, 7 & 8 of Arehalli village and other properties. Therefore the defendant proved by way of documentary evidence regarding title of his vendor in the property bearing kahta No.6 of Arehalli Village since he purchased said property from Chinnamma W/o Nallappa under the registered sale deed as per ExD3. On the contrary the plaintiff failed to prove by way of documentary evidence regarding title of his vendor over the suit schedule property bearing Khaneshumari No.8 & 10 of Arrehalli Village and also failed to prove the alleged encroachment by the defendant in the suit schedule property, the portion shown as 'B' schedule property in the plaint. Further the plaintiff taken contention that the defendant created 38 Judgment OS.No.25165/2009 the document relating to the property bearing khata No.3/2-5 khata No.6, 3/3 of Arehalli Village, but to prove the said contention the plaintiff has not led any oral evidence and not marked any documents. Hence the citations referred by the defendant counsel reported in AIR 2006 SC 1971 as discussed above applies to the present suit in hand. Further the other citation referred by the defendant counsel in AIR 2009 SC 2966 applies to the present suit in hand as the burden of proof is on the plaintiff to prove his case and he cannot succeed on the alleged weakness and title in possession of the defendant. Further another citation referred by the defendant counsel reported in ILR 2008 SC 2033 applies to the present case in hand. That initial burden is on the plaintiff to prove his lawful possession and enjoyment in the suit schedule property. But in the present suit except sale deed ExP1 the GPA holder of plaintiff has not produced any cogent documentary evidence to prove the title and ownership of plaintiff over the suit schedule property and also not produced 39 Judgment OS.No.25165/2009 khata extract and khata certificate of the suit schedule property standing in the name of plaintiff in the BBMP records as on the date of the suit to prove his ownership and possession over the suit schedule property. Therefore, the plaintiff failed to prove his lawful possession and enjoyment in suit schedule property and alleged interference by the defendant and also alleged encroachment of 'B' schedule property by the defendant. Hence the plaintiff is not entitled for the relief of Permanent Injunction and Mandatory Injunction as prayed. The plaintiff failed to prove Issues No.1 to 3 and Additional Issues No.1 & 2. Therefore I answer Issue Nos.1 to 3 and Addl. Issue No.1 & 2 in Negative.
25. Issue No.4 :-
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff is hereby dismissed with costs.40
Judgment OS.No.25165/2009
Draw decree accordingly.
(Dictated to the Stenographer, typed by him. Corrected online, taken printout, then corrected, signed and pronounced by me in the open court on this 10th day of November 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW1 : M. Prakash S/o Late Maddaiah
DOCUMENTS MARKED FOR THE PLAINTIFF:
ExP1 : Registered Sale Deed
ExP2 : Demand Register Extract
ExP3 : Endorsement issued by BBMP
ExP4 to10 : Tax paid receipts
ExP11 : Encumbrance Certificate
ExP12 : Endorsement issued by Subramanyapura P.S
ExP13 : Special Power of Attorney
ExP14 : Certified copy of Judgement in
CC.No.13072/2009
ExP15 : 3 Photographs
ExP16 : CD
41
Judgment OS.No.25165/2009
ExP17 : Endorsement issued by Subramanyapura PS.
WITNESSES EXAMINED FOR THE DEFENDANTS:
DW1 : M. Manjunath S/o Late Mariyappa
DOCUMENTS MARKED FOR THE DEFENDANT/S:
ExD1&2 : Photographs
ExD3 : Sale Deed dated 06/06/2003
ExD4&5 : Two Katha Certificates
ExD6&7 : Two Katha Extracts
ExD8 to12 : Kandayam Paid Receipts
ExD13&14 : Two Tax Assessments
ExD15&16: Two Kandayam Paid Receipts
ExD17 : Copy of the complaint given to the Police
ExD18 : Receipt regarding purchase of electric meter
ExD19&21: Two Electricity Bills
ExD22 : Gas Cylinder Receipt
ExD23 : Complaint given to the Police Station
ExD24 to29: Photographs
ExD30 : CD
ExD31 : Receipt of photographs
ExD32 to 34: Photographs
ExD35 & 36: Electricity Bills
ExD37 : One Receipt
42
Judgment OS.No.25165/2009
ExD38 : Copy of the sale deed dated 04/11/1992
ExD39 : Copy of Partition Deed dated 06/09/1931
ExD40&41: Two complaints given to the Police Station
ExD42 : Kandayam paid receipt
ExD43 : Encumbrance Certificate
ExD44 : Copy of order sheet in OS.No.111/2005
ExD45 : Copy of Plaint in OS.No.111/2005
ExD46 : Copy of W.S in OS.No.111/2005
ExD47 : Copy of order on I.A.No.5 in OS.No.111/2005
ExD48 : Copy of application in I.A.No.5 in OS.No.111/2005
ExD49 : Copy of objection in I.A.No.5 in OS.No.111/2005
ExD50 : Endorsement issued by BBMP
ExD51 : Copy of application issued by Assistant Revenue
Officer, Uttarahalli, Bengaluru
ExD52 to54: Kandayam paid receipts
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT : BANGALORE.