Bangalore District Court
Mrs.Usha Rani.R vs Mrs.S.B.Hemavathi on 2 September, 2020
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 2nd day of September, 2020.
Present
SRI.DINESH HEGDE, B.A.LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.1416/2015
PLAINTIFF : Mrs.Usha Rani.R,
w/o V.Srinivasa,
Aged about 48 years,
r/at No.16, 1st Main, 6th Cross,
Vasantha Vallabhanagar,
Subramanyapura Post,
Bengaluru-560 061.
( By Sri.Rajgopal Naidu, Advocate)
-VS-
DEFENDANTS : 1. Mrs.S.B.Hemavathi,
d/o late G.H.Bangera,
w/o Harsihchandra
(D.1 dead. Suit against defendant
No.1 is abated)
2. Mr.B.Chandrashekar,
s/o late G.H.Bangera,
aged about 57 years,
r/at No.12/1, 2nd Main, 9th Cross,
Chamarajpet, Bengaluru-18.
3. Mrs.B.Mangalagowri,
d/o. Late G.H.Bangera,
w/o Raghuram,
aged about 55 years,
r/at No.8/1, 4th Main,
9th Cross,
Ramachandra Agrahara,
2
O.S.No.1416/2015
Chamarajpet,
Bengalauru-18.
4. Mr.Uttam Kumar,
s/o late G.H.Bangera,
aged about 48 years,
r/at No.404, Bilvashrinilaya,
1st Main, 9th Cross,
Panchasheelanagar,
Moodalapalya,
Bengaluru-72.
5. Mrs.Sujatha.B,
d/o late G.H.Bangera,
aged about 46 years,
w/o Kumar,
c/o Tanuja Srinivas,
Doddagubbi village,
Bidarahalli Hobli,
Bengaluru Road,
Bengaluru East Taluk.
6. Mr.N.R.Prasad,
s/o B.Nataraj,
aged about 40 years,
r/at No.1000,
Water Tank Main Road,
4th Phase, BSK 3rd Stage,
Bengaluru-85.
7. Mr.Premanand Kamath,
s/o late Leeladhar,
aged about 46 years,
r/at No.T-5, 4th Floor,
Mangalam Chamber,
No.25, K.H.Road,
Bengaluru-27.
(D.2, 3 & 5 - By Sri.N.R, Advocate)
(D.4 - By Sri.JS, Advocate)
(D.6 - Exparte)
(D.7 - By Sri.NA, Advocate)
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O.S.No.1416/2015
Date of Institution of the suit : 11/2/2015
Nature of the Suit : Injunction Suit
Date of commencement of recording
of evidence : 5/2/2016
Date on which the Judgment was
pronounced : 2/9/2020
Year/s Month/s Day/s
Total Duration : 05 06 21
(Dinesh Hegde)
XIX Addl.City Civil & Sessions Judge,
Bangalore City.
JUDGMENT
The plaintiff has filed this suit against defendants for the relief of permanent injunction restraining the defendants in any way trespassing the schedule property and also for mandatory injunction directing the defendant No.1 to 5 & 6 to erect the compound wall around the schedule property at their costs and on their failure to do, permit the plaintiff to erect and to recover the costs thereof from the defendants.
2. The case of plaintiff in nutshell:-
The plaintiff is the sole and absolute owner in possession and enjoyment of vacant site bearing old 4 O.S.No.1416/2015 No.12/4, New No.14, previous khatha No.102/14 formed in converted Sy.No.67 of Halagevaderahallli village, Kengeri Hobli, Bangalore South Taluk now comes under BBMP limits, Ward No.160, RR Nagar Ward, Giridhama Layout which is described as the schedule property. The khatha of the schedule property is standing in the name of the plaintiff and she has paid the up-to-date taxes. Originally, land measuring 4 acres 24 guntas in Sy.No.67 of Halagevaderahallli Village was belonged to G.H.Bangera i.e., father of defendant No.1 to 5 herein. The said G.H.Bangera had purchased the said land by virtue of the Registered sale deed dtd:5/4/1971. During his life time, out of 4 acres 24 guntas, he has sold 1 acre 10 guntas of land to M.D.Ramakrishnaiah through a Regd.Sale deed dtd:23/9/1996. Further, he has sold 1 acres 4 guntas of land to Ratanshi D Patel under a Regd.sale deed dtd:3/9/1996 and also sold 1 acre 5 guntas of land to one Keshavlal K Patel under a Regd.Sale deed dtd:23/9/1996. The remaining land measuring 1 acre 5 guntas which was converted was 5 O.S.No.1416/2015 sold to Tulasidas M.Patel under a Regd.Sale deed dtd:24/9/1996. Thus, said G.H.Bangera, the previous land owner ceased to be the owner of entire land measuring 4 acres 24 guntas of land.
3. It is further stated in the plaint that Tulasidas M.Patel along with M.D.Ramakrishnaiah have formed the layout demarcating sites of various measurements. Due to his commitments, he was unable to sell the sites and accordingly, he has executed a power of attorney authorizing M.D.Ramakrishnaiah and K.R.Sathyanarayana as his attorneys to deal with the properties. The schedule property site was sold by the power of attorney holder of Tulasidas M.Patel to Smt.Radha.T.M. w/o M.T.Thimmaiah on 3/4/1997 for a valuable sale consideration Subsequently plaintiff has purchased the schedule property from her vendor Smt.T.M.Radha through a Regd.Sale deed dtd:23/1/204. The schedule property is under the BBMP limits and they have made the khatha in the name of the plaintiff. 6
O.S.No.1416/2015
4. It is further stated that when plaintiff had purchased the schedule property, there was a watchman shed of A.C. sheet roof. Subsequently, the plaintiff has erected the compound wall to safeguard her property and has been in physical possession. The plaintiff with an intention to put up construction, has obtained a sanctioned plan and the license. The plaintiff has also dig a bore well in the schedule property and she has demolished the existing watchman shed and she has commenced digging the pits to lay the pillars on 3/2/2015. At that time, 7 th defendant claiming himself as the power of attorney holder of defendant No.1 to 5 came near the schedule property in the absence of the plaintiff and pulled down the compound wall without any right whatsoever. The 6th defendant claiming himself as the power of attorney holder of the defendant No.1 to 5 also joined with the 7th defendant in illegally demolishing the compound wall erected by the plaintiff to the schedule property. In this regard, plaintiff has lodged a police complaint. 7
O.S.No.1416/2015
5. It is further stated that the defendant No.1 to 5 claiming to be the legal heirs of deceased G.H.Bangera are wrongly claiming the ownership for the entire layout. The 7th defendant claiming as the power of attorney holder of defendant No.1 to 5 is also trying to interfere with the construction work of the plaintiff. They are not allowing the plaintiff to carry out the construction activity on the schedule property. The police are not taking action against the defendants as the matter is civil in nature. Hence, without any alternative, plaintiff has filed this suit for the relief of permanent and mandatory injunction against the defendants. Hence, prays to decree the suit.
6. After service of suit summons, defendant No.6 remained absent. Hence, he was placed exparte. Defendant No.1 died during the pendency of the suit. Hence, suit against defendant No.1 stands abated. Remaining defendants appeared through their counsel.
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O.S.No.1416/2015
7. In the written statement of defendant No.1, 2, 3, 5 & 7, they have contended that plaintiff is not the owner of the suit schedule property. They have admitted that originally land measuring 4 acres 24 guntas in Sy.No.67 of Halagevaderhalli village belonged to G.H.Bangera, father of defendant No.1 to 5 and said Bangera had purchased the said land under the Regd. Sale deed dtd:5/4/1971.
8. The defendants have denied the fact that said G.H.Bangera during his life time out of 4 acres 24 guntas, had sold 1 acre 10 guntas of land to M.D.Ramakrishnaiah through a Regd.Sale deed dtd:23/9/1996, 1 acre 4 guntas of land to Ratanshi D Patel through a Regd. Sale deed dtd:23/9/1996. They have further denied that remaining land measuring 1 acre 5 guntas was converted and sold to Tulasidas M.Patel through a Regd.Sale deed dtd:24/9/1996. The defendants have further denied that said Tulasidas M Patel along with M.D.Ramakrishnaiah have formed the layout demarcating sites of various 9 O.S.No.1416/2015 measurements and due to his commitments was unable to sell the sites and accordingly, has executed a power of attorney authorizing said M.D.Ramakrsihaniah and K.R.Sathyanarayana as his attorneys to deal with his properties.
9. They have further contended that their father acquired the entire property measuring an extent of 4 acres 24 guntas in Sy.No.67 of Halagevaderahalli Village through a Regd. Sale deed dtd:5/4/1971. Subsequently, mutation was effected in the name of late G.H.Bangera and he was in peaceful possession and enjoyment of the schedule property during his life time. The said property being acquired by late G.H.Bangera out of the income derived from joint- family. Hence, the said property is deem to be a joint- family property of defendant No.1 to 5.
10. They have further contended that since the father of the defendant No.1 to 5 was not in a position to move and he was bed ridden, taking advantage of the same, on a single day several sale deeds were 10 O.S.No.1416/2015 created by one M.R.Ramakrishnaiah, Tulasidas M.Patel and Ratanshi D Patel and one Keshavalal for different dimensions. At any point of time, the father of defendants executed sale deeds in favour of aforesaid persons. Even if it is assumed that the father of the defendant No.1 to 5 executed the sale deed, it is void under the law since the said entire extent in Sy.No.67 is a joint-family property of the defendants. Hence, the sale deeds created are null and void and they are challenged by the defendants before this court in O.S.No.377/2013, O.S.No.371/2013, O.S.No.386/2013 & O.S.No. 9295/2013.
11. They have further contended that the site which is claimed by the plaintiff through her previous vendor M.Tualsidas M.Patel has not been converted from agriculture to residential purpose. By showing the forged conversion order the sites being formed, sold the site in favour of the plaintiff by the land grabbers.
12. They have further contended that in fact, the plaintiff never in possession and enjoyment of the 11 O.S.No.1416/2015 schedule property as alleged int eh plaint. In fact, she ought to have verify the document before purchasing the schedule property. In fact, no such schedule property is existing.The said Ramakrishnaiah and K.R.Sathyanarayana have illegally formed almost 132 sites in Sy.No.67 of Halagevaderahalli Village by encroaching other adjacent properties. The plaintiff has filed this suit seeking mandatory injunction without seeking the relief of declaration of her title. Hence, the suit is not maintainable. These defendants have not interfered with the possession of the plaintiff and demolished any structure as alleged by the plaintiff. Hence, prays to dismiss the suit with exemplary costs.
[
13. On the above pleadings, the following issues were framed:-
ISSUES
1. Whether plaintiff proves that she is in lawful possession and enjoyment of suit schedule property within given boundaries as on the date of the suit?
2. Whether plaintiff proves the alleged interference from defendants? 12
O.S.No.1416/2015
3. Whether plaintiff is entitled for the relief of permanent injunction as prayed in the plaint?
4. Whether plaintiff is entitled for the relief of mandatory injunction as prayed in the plaint?
5. Whether defendant No.1 to 3 and 5 to 7 prove that suit is not maintainable as pleaded in para No.1 of the written statement?
6. What order or decree?
14. On behalf of plaintiff, her husband/power of attorney holder is examined as P.W.1 and marked Ex.P.1 to Ex.P.43. On behalf of the defendants, defendant No.7 & 5 are examined as D.W.1 & D.W.2 and marked Ex.D.1 to Ex.D.16.
15. Heard the arguments, perused the written arguments and the records.
16. My findings on the 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:- In the Negative; Issue No.5:- In the Negative; Issue No.6:- As per the final order for the following:-13
O.S.No.1416/2015 REASONS
17. ISSUE No.1 & 2:- These issues are taken up together for common discussion as they are inter- related to each other.
18. It is the specific case of the plaintiff that she is the absolute owner in possession of the suit schedule property by virtue of the sale deed dtd:23/1/2004. Based on the sale deed, khatha has been changed in to her name. The defendants No.1 to 5 claiming to be the Lrs of deceased G.H.Bangera laid the claim of ownership over the suit schedule property and defendant No.6 & 7 are claiming to be the power of attorney holders of the defendant No.1 to 5. Hence, the plaintiff filed this suit for permanent and mandatory injunction against the defendants.
19. According to the defendant No.1 to 5, even if their father had executed 3 sale deeds dtd:23/9/1996 and another sale deed dtd:24/9/1996 and alienated the entire extent of 4 acres 24 guntas in Sy.No.67 of Halagevaderahallli and those sale deeds are void 14 O.S.No.1416/2015 under law since the entire land in Sy.No.67 is their joint-family property.
20. To prove the case of the plaintiff, the power of attorney holder of the plaintiff i.e., the husband of the plaintiff has been examined as P.W.1 and he has relied upon Ex.P.1 to Ex.P.41. In his evidence, P.W.1 has reiterated the averments made in the plaint. Ex.P.9 is the special power of attorney dtd:25/1/2016 reveal that the plaintiff authorized the P.W.1 to give evidence in the present suit on behalf of her. Based on the power of attorney, P.W.1 has stepped in to the witness box and adduced his evidence.
21. Ex.P.1 is the certified copy of the sale deed dtd:5/4/1971 reveal that Sri.G.H.Bangera had purchased the land measuring 4 acres 24 guntas in Sy.No.67 of Halagevaderahalli village, Kengeri Hobli, Bangalore South Taluk from his vendor along with other survey number properties for valuable sale consideration amount. G.H.Bangera is none other than father of defendant No.1 to 5. Therefore, it is 15 O.S.No.1416/2015 clear that ownership with respect of the land in Sy.No.62 to 67 of Halagevaderahalli was vested with deceased G.H.Bangera.
22. Ex.P.2 to 5 are 4 the certified copy of the 4 sale deeds dtd:23/9/1996 and dtd:24/9/1996 reveal that father of the defendants had alienated the entire extent of the land in Sy.No.67 in favour of M.D.Ramakrishnaiah, Mr.Rathanshi D.Patel, Mr.Keshavalal K.Patel and Mr.Thulasidas M.Patel for valuable sale consideration amount. The portion of land alienated under these sale deeds in Sy.No.67 is 1 acre 10 guntas, 1 acre 04 guntas, 1 acre 05 guntas and another extent of 1 acre 05 guntas respectively.
23. Therefore, Ex.P.2 to Ex.P.5 reveal that G.H.Bangera ceased to be the owner of the land measuring 4 acres 24 guntas. The sale deed dtd:24/9/1996 referred above reveal that G.H.Bangera had alienated the converted land in favour of Thulasidas M.Patel referred above. 16
O.S.No.1416/2015
24. Ex.P.6 is the certified copy of the sale deed dtd:3/4/1997 reveal that Mr.Thulasidas M.Patel represented by her general power of attorney holder M.D.Ramakrishnaiah had alienated the property covered under Ex.P.5 in favour of Smt.Radha T.M for valuable sale consideration amount.
25. Ex.P.7 is the BBMP approved plan reveal that the plaintiff obtained approved plan from the BBMP for construction of the building in the suit schedule property. She has also obtained a license under Ex.P.11 issued by BBMP for construction of a building in the suit schedule property. Ex.P.12 is the khatha certificate dtd:16/2/2015 issued by BBMP in favour of the plaintiff reveal that khatha certificate has been issued in favour of the plaintiff with respect of the property No.14, 102 in Sy.No.67/69. Ex.P.13 is the house and vacant land register extract issued by the BBMP in favour of the plaintiff reveal her name.
26. Ex.P.14 is the encumbrance certificate for 15 years commencing from 1/6/1989 to 31/3/2004 17 O.S.No.1416/2015 reflects all the sale transactions of G.H.Bangera with respect of the land in Sy.No.67. Ex.P.12 referred above being the khatha extract reflects the name of plaintiff and that itself shows that plaintiff is in possession of the property old No.12/4, new No.14, previous khatha No.102/14 formed in converted Sy.No.67 of Halagevaderahalli village, Kengeri Hobli. The plaintiff has also paid property tax to BBMP as reflected in tax-paid receipts marked at Ex.P.10 & Ex.P.13.
27. To prove the interference of the defendants over the suit schedule property, the plaintiff has relied upon Ex.P.8 the police complaint that shows on 6/2/2015 the plaintiff lodged complaint to the jurisdictional police regarding demolition of stone pillars and fencing made to her property by Premananda Kamath with the help of rowdy elements by bringing bulldozers. Said Premananda Kamath is the defendant No.7 herein. After receiving the complaint, the jurisdictional police issued a receipt. 18
O.S.No.1416/2015
28. Ex.P.16 is the letter dtd:21/3/2016 said to have been issued by Balaji Bankers stating that the plaintiff had executed a mortgage dtd:28/2/2015 and deposited original sale deed dtd:23/1/2004 and sale deed dtd:3/4/1997 in respect of the property No.12/4, new No.14, khatha No.102/14 formed in Sy.No.67 of Halagevaderahalli village, Kengeri Hobli, Bangalore South Taluk. This document is produced by the plaintiff to show that he is unable to produce the original title deeds since it was deposited with Balaji Bankers.
29. Ex.P.18 is the certified copy of the sale deed dtd:23/1/2004 reveal that the plaintiff herein had purchased the suit schedule property from Smt.Radha.T.M for valuable sale consideration amount of Rs.1,60,000/-. Plaintiff has also produced a valuation report of the schedule property marked at Ex.P.19 that shows H.Jayasurya & Associates have valuated the property belongs to the plaintiff for State Bank of India, Kumaraswamy Layout Branch. Under 19 O.S.No.1416/2015
30. Ex.P.19 the valuer has reported that fair market value of this property is Rs.11,40,000/-. Ex.P.20 is an endorsement dtd:8/2/2006 issued by Revenue Officer, Rajarajeshwari Municipal City Corporation, reporting payment of development fee of Rs.13,334/- by T.M.Radha who is the vendor of the plaintiff. Ex.P.21 is the loan documents issued by the State Bank of India in favour of the plaintiff. Ex.P.22 is a letter dtd:21/2/2011 issued by the State Bank of India , PBB Jayanagara Branch, B'lore reveal that mortgage loan with respect of the schedule property availed by the husband of the plaintiff has been closed with up-to- date interest.
31. Ex.P.23 is an endorsement issued by the Commissioner of City Corporation, Rajarajeshwari Nagar dtd:17/1/2006 reveal the name of plaintiff with respect of the suit schedule property. Ex.P.24 to Ex.P.27 are the tax-paid challan forms reveal that plaintiff has remitted self-assessment of property tax. Ex.P.28 to Ex.P.34 are the property-tax paid receipts 20 O.S.No.1416/2015 reveal that plaintiff had remitted the property tax with respect of the suit schedule property from 2008 to 2014. Ex.P.35 is the receipt issued by Rajarajeshwari Bore wells that shows a receipt was issued in favour of the plaintiff for digging of a bore well. Ex.P.36 to Ex.P.39 are the photographs. Ex.P.40 is the receipt and Ex.P.41 is the CD shows the existence of suit schedule property.
32. Ex.P.42 is the certified copy of the registered cancellation of the GPA reveal that on 6/1/2016 the defendant No.1 to 5 canceled the GPA dtd:27/6/2013 executed in favour of Premananda Kamath who is none other than defendant No.7 herein. Under Ex.P.42, there were many properties are mentioned in the schedule including Site No.67 i.e., the plaint schedule property.
33. Ex.P.43 is the certified copy of the Regd.Deed of Confirmation reveal that defendant No.1 to 5 and their family members executed a confirmation deed in favour of Smt.Shanthamma. Under Ex.P.43, the 21 O.S.No.1416/2015 defendant No.1 to 5 and their family members have stated G.H.Bangera for his legal necessities of the family, had conveyed the portion of the land bearing Sy.No.67 situated at Halagevaderahalli , Kengeri Hobli, to an extent of 1 acre 5 guntas for valuable sale consideration in favour of Thulasidas N.Patel through a sale deed dtd:24/9/1996.
34. Later, Thulasidas N.Patel has executed a power of attonrey dtd:5/12/1996 in favour of M.D.Ramakrishnaiah & K.Sathyanarayana authorizing and empowering them to deal with the properties. Mr.Ramakrsihnaiah and K.Sathyanarayana developed the land bearing Sy.No.67 and formed sites and sold one of such site bearing No.14,carved in Sy.No.67 in favour of Smt.Shanthamma under the sale deed dtd:31/1/1997. Under the deed of confirmation, the defendant No.1 to 5 and their family members confirmed the sale deed dtd:31/1/1997 executed in favour of Smt.Shanthamma and received the consideration amount for having executed confirmation deed.
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O.S.No.1416/2015
35. To rebut the evidence adduced by plaintiff, the defendant No.7 and 5 have stepped in to the witness box and examined as D.W.1 & D.W.2. They have reiterated the facts stated in the written statement and also relied upon Ex.D.1 to Ex.D.16.
36. Ex.D.1 is the certified copy of the official memorandum of the Deputy Commissioner, Bangalore District dtd:18/10/1991 reveal that the learned Deputy Commissioner sanctioned to alienation of 1 acre 10 guntas of land in Sy.No.67 of Halagevaderahalli village for non-agricultural residential purpose in favour of G.H.Bangera who is father of defendant No.1 to 5 herein. Ex.D.1(a) is Genealogical Tree reveal that defendant No.1 to 5 are the children of deceased G.H.Bangera and his wife M.Indra.
37. Ex.D.2 is the encumbrance certificate for 15 years from 1/6/1989 to 31/3/2004 reveal NIL encumbrance with respect of land in Sy.No.66/1, 2 acres 4 guntas. However, the plaintiff contended that his plaint schedule property is part and parcel of the 23 O.S.No.1416/2015 land in Sy.No.67 of Halagevaderahalli village. Ex.D.3 to Ex.D.7 are the RTC extracts pertaining to the land in Sy.No.66/1. Ex.D.3 reflects the name of defendant No.1 to 5 and Ex.D.4 reflects the name of defendant No.4 and Ex.D.5 to Ex.D.7 reflects the name of father of defendant No.1 to 5 with respect of the land in Sy.No.66/1. All these revenue records are not pertaining to land in Sy.No.67.
38. Ex.D.8 is the mutation register extract reveal the name of defendant No.1 to 5 with respect of the land in Sy.No.66/1, 67, 68 and 68/3. Ex.D.9 to Ex.D.11 are the mutation extracts also reveal the name of defendant No.1 to 5 with respect of various survey numbers. Ex.D.12 is the copy of the survey sketch pertaining to land in Sy.No.66.
39. Ex.D.13 is the certified copy of the order sheet in O.S.No.5442/2009 reveal that the defendant No.1 herein and others filed a suit for partition and separate possession with respect of Sy.No.98/3, 98/1, 67 and 66/1 against defendant Sujatha.B and others. 24
O.S.No.1416/2015 Said Smt.Sujatha.B is none other than the defendant No.5 in the present suit. The said suit was instituted on 18/8/2009. However, the plaintiff purchased the plaint schedule property under the sale deed dtd:23/1/2004 i.e., prior to institution of O.S.No.5442/2009. Moreover, the plaintiff is not a party to the suit. In the said suit, the parties have entered in to a settlement under Ex.D.16 and a decree was drawn by dividing the properties in various survey numbers including the land measures 4 acres 24 guntas in Sy.No.67. Ex.D.16(a) to Ex.D.16(d) are the schedule annexed to the compromise petition. Admittedly, the plaintiff is not a party to the said compromise and this compromise was entered after 6 years from the date of plaintiff purchased the plaint schedule property.
40. The title deeds and the revenue records clearly establishes that plaintiff is in possession and enjoyment of the suit schedule property. The defendants claiming as the legal heirs of deceased G.H.Bangera are claiming title over the suit schedule 25 O.S.No.1416/2015 property. Admittedly, the present suit is filed by the plaintiff for the relief of injunction. Since the plaintiff is in settled possession based on his title deeds, he cannot be dispossessed.
41. Coming to the oral evidence of P.W.1, in his cross-examination, nothing is elicited to show that he is not in possession of the suit schedule property. On the other hand, in the cross-examination of D.W.1, he has stated that he is the general power of attorney holder of defendant No.1 to 5, but he has not produced the GPA. Therefore, his evidence has to be restricted to him only. He has stated that he is not in actual physical possession of the suit schedule property, but the defendant No.1 to 5 are in possession. He has further stated that no documents are produced by defendant No.1 to 5 to show that they are in actual possession. He do not know that GPA executed by defendant No.1 to 5 not in force as on 6/11/2015 when he filed written statement on behalf of defendant No.1 to 5. He do not know the 26 O.S.No.1416/2015 date of revocation of the GPA executed by defendant No.1 to 5, but subsequently, he came to know revocation of the GPA.
42. On perusal of the Ex.P.42, it is clear that on 6/1/2016 the defendant No.1 to 5 canceled the GPA executed in favour of D.W.1. He has further stated that no documents are produced to show that suit schedule property is covered under Sy.No.66/1.
43. D.W.2 in his cross-examination has stated that he constructed a shed in the schedule property and he is in occupation of the same. But, no electricity connection is provided. He has stated that no public record was secured to show the existence of the shed. He has further stated that he has seen the khatha extract existing in the name of the plaintiff and so also, the tax-paid receipts pertaining to the schedule site. He has stated that both the khatha and tax-paid receipts standing in the name of plaintiff has not been challenged before appropriate forum. He has also seen the construction plan issued by BBMP in respect 27 O.S.No.1416/2015 of the schedule property, but, it was with respect of the land in Sy.No.66/1. He has admitted that till today, they have not filed suit against the plaintiff claiming possession, title over the schedule property. He has admitted that no documents produced to show that they are in possession of the land comprised in Sy.No.67 and he is not able to say the exact measurement and boundaries of the land in Sy.No.67.
44. On perusal of the documentary evidence produced by both the sides and their oral evidence, clearly establishes that plaintiff is in possession of the suit schedule property and the defendants are interfering her possession. Therefore, I answer Issue No.1 & 2 in the Affirmative.
45. ISSUE No.5:- In the written statement, in para No.1, the defendants have contended that the suit of the plaintiff seeking permanent injunction and mandatory injunction is not at all maintainable either in law or on facts. However, the defendants have not adduced any evidence to show that how the suit is not 28 O.S.No.1416/2015 maintainable for the relief of injunction.
46. Further, this court while answering the issue No.1 & 2 held that plaintiff is in possession of the suit schedule property and defendants are interfering with the suit schedule property. Therefore, the contention raised by the defendants that the suit is not sustainable. Hence, I answer Issue No.5 in the Negative.
47. ISSUE No.3 & 4:- These issues are taken up together for common discussion as they are inter- related to each other.
48. It is the case of the plaintiff that she is in possession and enjoyment of the suit schedule property. It is also the case of the plaintiff that defendants came near the schedule property during the absence of the plaintiff and pulled down the compound wall and hence, she has sought for the relief of mandatory injunction directing the defendants to erect the compound wall around the schedule property at their costs and on their failure to 29 O.S.No.1416/2015 do so, permit the plaintiff to erect and recover the costs from the defendants.
49. Absolutely, there is no evidence that the defendant No.1 to 5 & 7 destroyed the compound wall erected by the plaintiff. Under Section 39 of the Specific Reliefs Act, 1963, "mandatory injunction can be granted to prevent the breach of an obligation and it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complied of and also to compel performance of the requisite acts." It is the duty of the plaintiff to show that actual mischief caused by the defendants. In the absence of evidence, the plaintiff is not entitled for the relief of mandatory injunction.
50. Under Section 38 of the Specific Reliefs Act, 1963, "perpetual injunction can be granted to prevent the breach of an obligation existing in his favour. When the defendant invades or threatens to invade 30 O.S.No.1416/2015 the plaintiff's right or enjoyment of a property, the court may grant a perpetual injunction particularly when the invasion is such that compensation in money would not afford adequate relief."
51. The plaintiff has proved that she is in possession and enjoyment of the suit schedule property. Therefore, the defendants have no rights whatsoever to interfere with her possession. Therefore, the plaintiff is entitled for the relief of permanent injunction against the defendants. But, she is not entitled for the relief of mandatory injunction. For these reasons, I answer Issue No.3 in the Affirmative and Issue No.4 in the Negative.
52. ISSUE No.6:- In view of findings on Issue No.1 to 5, I pass the following:-
ORDER Suit of the plaintiff is partly decreed with costs.
The defendant No.2 to 7 are hereby
permanently restrained from
interfering with the suit schedule
property.
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Suit of the plaintiff for the relief of mandatory injunction is hereby dismissed.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 2 nd day of September, 2020.) (Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - V.Srinivasa
b) Defendants' side :
D.W.1 - Premanand Kamath D.W.2 - B.Sujatha II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of the sale deed
dtd:5/4/1971
Ex.P.2 to Certified copies of 4 sale deeds
Ex.P.5 each dtd:23/9/1996
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O.S.No.1416/2015
Ex.P.6 Certified copy of the sale deed
dtd:3/4/1997
Ex.P.7 Approved plan
Ex.P.8 Police endorsement dtd:6/2/2015
Ex.P.9 Spl.Power of attorney
Ex.P.10 Tax-paid receipt
Ex.P.11 License issued by BBMP
Ex.P.12 Khatha certificate
Ex.P.13 Khatha extract
Ex.P.14 Certified copy of the
encumbrance certificate
Ex.P.15 Tax-paid receipt
Ex.P.16 Letter dtd:21/3/2016 issued by
Balalji Bankers
Ex.P.17 & Certified copies of sale deeds
Ex.P.18 dt:3/4/1997 & 23/1/2004
Ex.P.19 Valuation Report
Ex.P.20 Endorsement
Ex.P.21 Loan documents
Ex.P.22 Endorsement issued by Bank
Ex.P.23 Another endorsement
dtd:17/1/2006 issued by
Rajarjaeshwari Nagar CMC
Ex.P.24 to 4 bank challans pertaining to Ex.P.27 self-assessment of property tax Ex.P.28 One more tax-paid receipt Ex.P.29 to 6 tax-paid receipts Ex.P.34 Ex.P.35 Bill issued by Rajarajeshwari Borewell 33 O.S.No.1416/2015 Ex.P.36 to 4 photographs Ex.P.40 Ex.P.41 CD Ex.P.42 Deed of cancellation of GPA Ex.P.43 Confirmation Deed
(b) Defendants' side : -
Ex.D.1 Genealogical Tree of G.H.Bangera Ex.D.2 NIL Encumbrance certificate pertaining to Sy.No.66/1 for the period from 1/6/1989 to 31/3/2004 Ex.D.3 to 4 RTCs pertaining to Sy.No.66/1 Ex.D.6 Ex.D.7 RTC pertaining to Sy.No.98/1 Ex.D.8 to 4 mutation register extracts Ex.D.11 Ex.D.12 Survey sketch pertaining to Sy.No.66 Ex.D.13 to Joint Memo and Memorandum of Ex.D.16 Settlement in O.S.No.5442/2009 Ex.D.16(a) 4 sketches to (d) (Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
GVU/-34
O.S.No.1416/2015 Judgment pronounced in open court vide separate detailed judgment with the following operative portion:-
ORDER Suit of the plaintiff is partly decreed with costs.
The defendant No.2 to 7 are
hereby permanently restrained
from interfering with the suit
schedule property.
Suit of the plaintiff for the relief of mandatory injunction is hereby dismissed.
Draw decree accordingly.
(Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.