Bangalore District Court
Sri. P. Ajayan S/O Sri. T. Appukuttan vs Sri. Narayanappa S/O Late on 22 September, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.17069/2004
Dated this the 22nd day of September 2021
Plaintiff 1. Sri. P. Ajayan S/o Sri. T. Appukuttan
Nair,
Aged about 35 years, R/o No.20,
2nd Cross, Jayanthi Nagar,
Horamavu Village, K.R Puram Hobli,
Bangalore560 043.
(Rep by Sri.A.R.Advocate)
V/S
Defendants 1. Sri. Narayanappa S/o Late
Venkataswamappa,
@ Chikka Abbaiah, Aged about 50 years,
2. Sri. Nagaraj S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 45 years,
Since deceased represented by his LR.
2(a) Smt. Shashikala W/o Late C. Nagarajappa,
Aged about 47 years,
Residing at Horamavu Village & Post,
Near Mariyamma Temple Street,
K.R Puram Hobli, Bangalore East Taluk,
Bangalore560 043.
2
Judgment O.S.No.17069/2004
3. Sri. Jayaram S/o Late Venkataswamapppa
@ Chikka Abbaiah, Aged about 40 year
1 to 3 residing at: Horamavu Village,
K.R Puram Hobli, Bangalore560 043.
4. Smt. Madireddy Sripadmavathi W/o
Jagadish, Aged about 36 years, R/o.No.7,
Scientist Hotel, C.V.Raman Nagar,
DRO township, Bangalore560 093.
5. Sri. Y.N. Konda Reddy S/o Narayana
Reddy,
Aged about 42 years, R/o No.83,
Yerandahalli,
Hennagara Post, Anekal Taluk,
Bangalore562106.
(Rep by Defendant No.1 to 3 Sri.PSN Advocate,
Defendant No.5-Sri. MRS Advocate, Defendant No.4-Exparte)
Date of Institution of the suit 17/12/2004
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Permanent Injunction
injunction, etc.)
Date of the commencement of recording
of the Evidence
11/10/2006
Date on which the Judgment was
22/09/2021
pronounce
Year/s Month/s Day/s
Total duration 16 09 04
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
3
Judgment O.S.No.17069/2004
:JUDGMENT:
The plaintiff filed suit against the defendants for permanent injunction.
2. The brief facts of plaint averments is as under:
The plaintiff submits that he is absolute owner of the suit schedule property mentioned below: :SUIT SCHEDULE PROPERTY:
All that piece and parcel of residential premises bearing Site No.20 formed in the Northern portion of land in Sy.No.81/2 of Horamavu Village, in house list katha No.0122/2, K.R Puram Hobli, Bangalore South Taluk(presently Bangalore East Taluk), measuring East to West 40 feet, North to South 30 feet, total area 1200 SFT, and bounded on the East by Road, West by Site No.11, North by Site No.21 belongs to Unni, South by Site No.19. 4
Judgment O.S.No.17069/2004
3. The Plaintiff further submits that he suit schedule for valuable consideration from one C.K.Manoharan Nambirar under registered sale deed on 13/02/2002. The defendants No.1 to 3 were the original owners of the schedule Site No.20. The defendants No.1 to 3 through their power of attorney holder Madireddy S Padmavathy/ defendant No.4 herein sold the schedule property in site No.20 to his vendor C.K.Manoharan Nambirar under registered sale deed on 25/05/1992 for sale consideration as stated in the said sale deed in respect of site No.20. The plaintiff further submits after purchase of suit property, he got changed khata in his name in the Horamavu Village Panchayat and afterward he applied to the Horamavu Village Panchayat for building license and obtained plan sanctioned for construction of his house in the suit property.5
Judgment O.S.No.17069/2004
4. The plaintiff further submits that the defendants No.1 to 3 were original owners of the land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, during the year 1991, defendants No.1 to 3 formed layout of house sites in the Northern portion of their land in Sy.No.81/2 with total number of 47 sites and offered to sell to intending purchasers of the sites thus formed. The defendants No.1 to
3 appointed defendant No.4 as Power of Attorney Holder to transact with the site purchasers and also got House List Khatha numbers allotted to the sites formed in this layout by the Horamavu Village Panchayat. The schedule property in site No.20 was assigned with House list No.122/2.
5. The plaintiff further submits that the Northern portion of the survey No.81/2 to an extent of 1 acre 24 guntas wherein the defendants formed the residential layout with 47 sites was bounded by North: land in Sy.No.81/1 belongs 6 Judgment O.S.No.17069/2004 to Yamanna, East: land in Sy.No.84 belongs to Sri. Baluki Dasappa, West: Jayanthi grama, hamlet of Horamavu Village, South: land (sold) belongs to defendant No.4 Padmavathi in the same Sy.No.81/2. He and many others purchased sites in the layout under registered sale deed from defendants No.1 to 3, all the 47 sites were thus sold to different purchasers during the year 1992. The defendants No.1 to 3 did not retain any right or title over the Northern portion of the land in Sy.No.81/2 wherein the sites were formed. Thus since 1992 defendants No.1 to 3 ceased to be the owners of the land wherein the said layout was formed.
6. The plaintiff submits that in the year 2003 he constructed residential building on the schedule site No.20 after obtaining the building licence from the Horamavu Village Panchayat authorities and ever since the plaintiff along with his family members is peaceful possession and 7 Judgment O.S.No.17069/2004 enjoyment of the schedule property. The plaintiff further submits that his vendor and many others had purchased sites as stated above from defendants No.1 to 3 constructed their houses in their respective sites by spending their hard earned money and also by availing house construction loans from banks and financial institutions. He and other purchasers of sites have been in peaceful and enjoyment of their respective sites. That for the past thirteen years there was no agricultural operation on the land in Sy.No.81/2 where the layout is formed and fully developed residential layout, and Horamavu Layout Panchayat Authorites have approved the residential layout by issuing House list numbers and House building licence to the site owners.
7. The plaintiff further submits that such being the state of affairs on 21/10/2004 the defendant No.5 appeared in the layout with strange claim that he has purchased the land 8 Judgment O.S.No.17069/2004 wherein the layout was formed by the defendants No.1 to 3 about 13 years ago and had sold sites to him and others and put them in physical possession and enjoyment under registered sale deeds. The defendant No.5 claims that he has purchased the land wherein the layout is formed under registered sale deed on 01/03/2004 to extent of 1 to an extent of 1 acre 7 guntas agricultural land from defendants No.1 to 3 and their children. The defendant No.5 has appeared in the layout on 21/10/2004 with his gang and henchmen and threatened the plaintiff and other owners of sites and houses in the layout to give up their properties or they will be forcibly evicted from their properties.
8. The plaintiff further submits that he and other owners of the sites are tried to contact the defendants No.1 to 3 and the defendant No.4 on this untenable claim of the defendant No.5, but they are avoiding to answer him and other site 9 Judgment O.S.No.17069/2004 owners in the layout. It has become clear that the defendants No.1 to 5 in collusion with each other fraudulently registered the sale deed now claimed by the defendant No.5 to illegally knock off and grab his and other site owners of properties in the layout and for making unlawful gain for themselves. That the alleged sale deed of the defendant No.5 in respect of the same land wherein the layout as formed is a fraudulent instrument and it does not confer any title to the defendant No.5 in respect of land wherein the layout was formed and the said sale deed claimed by the defendant No.5 is nullity and it does not affect in any manner the lawful title, rights and interest of the plaintiff on the suit schedule property. That on 21/10/2004 defendant No.5 and his henchmen came to layout and threatened the plaintiff and other owners of forceful interference and eviction. He and other site owners filed police complaint in the Ramamurthy Nagar Police 10 Judgment O.S.No.17069/2004 Station against the threats of the defendants. The defendant No.5 also lodged caveat in Civil Judge (Jr.Dn) court, Bangalore, which court has no jurisdiction over the area against him and few other owners. He and other site owners in the layout are living under the threat of forceful eviction by the defendant No.5 and his supporters. He has got legal right to peaceful possession and enjoyment of the suit property. The defendants No.1 to 5 by creating fraudulent title deeds and with manipulated revenue records made on the strength of such fraudulent title deeds are trying to interfere with his peaceful possession and enjoyment of the schedule property and the defendant No.5 and with his men and money power is physically interfering and threatening to dispossess him from the suit property.
9. The plaintiff further submits that the cause of action for this suit arose on 21/10/2004 the defendant No.5 came 11 Judgment O.S.No.17069/2004 to his property and threatened to interfere with his peaceful possession and enjoyment of the suit property. The plaintiff prays to decree the suit for permanent injunction restraining the defendants, their heirs, successors, agent from interfering with the peaceful possession and enjoyment of the suit schedule property and award costs of this proceedings.
10. The defendants No.1 to 3 filed written statement. The defendants No.1 to 3 denied entire plaint allegations and also denied ownership of the plaintiff over the suit schedule property. The defendants No.1 to 3 further submits that suit of plaintiff for the relief of bare injunction without seeking declaratory is not maintainable either in law or on facts. The suit filed by plaintiff is frivolous, vexatious, mischievous in nature and plaintiff had suppressed material facts and misrepresented the facts. The defendants No.1 to 3 submit 12 Judgment O.S.No.17069/2004 there is no cause of action to file suit, court fee paid is in sufficient.
11. The defendants No.1 to 3 further submits that the alleged suit schedule property is not at all in existence as it is described in the schedule to the plaint. The defendants No.1 to 3 further submits out of total extent of 3 acre 17 guntas of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk presently Bangalore East Taluk, they have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma W/o Dasappa and another extent of 30 guntas of land in favour of Padmavathi Madareddy/ defendant No.4 and retained 1 Acre 7 Guntas of land in said Sy.No.81/2 of Horamavu Village. The defendants No.1 to 3 further submits that they were title holders and in possession and enjoyment of the extent of 1 Acre 7 guntas of land in Sy.No.81/2 of Horamavu Village 13 Judgment O.S.No.17069/2004 and they have sold said extent of the land in favour of Y.N. Kondareddy. i.e the defendant No.5 under registered sale deed dated 01/03/2004, since then the defendant No.5 is in possession and enjoyment of said extent of the land. The defendants No.1 to 3 further submits that they have sold only an extent of 30 guntas of land, in Sy.No.81/2 of Horamavu Village in favour of Padmavathi Madareddy/defendant No.4 and have not entered in to any other transaction with the defendant No.4 except for the sale deed referred to above, which has been executed by the defendants No.1 to 3. That no sites have been formed in the land measuring an extent of 1 Acre 7 Guntas, which has been sold in favour of defendant No.5.
12. The defendants No.1 to 3 denied the alleged site No.20 which is said to have been purchased by the plaintiff under the registered sale deed dated 01/08/2001 has been 14 Judgment O.S.No.17069/2004 formed in Sy.No.81/2 of Horamavu Village from its vendor C.K.Manoharan Nambirar, who had purchased the same from the defendant No.4 as alleged GPA holder of the defendants No.1 to 3. The defendant No.1 to 3 submits that alleged GPA said to have been executed by them in favour of defendant No.4 which has been obtained by the defendant No.4 from them by misrepresentation and by playing fraud upon them. Thus no power has been confirmed upon the defendant No.4 under the alleged General Power of Attorney. In fact they did not own and possess the suit schedule site and hence the question of executing General Power of Attorney in favour of the defendant No.4 does not arise at all. The alleged layout plan said to have been furnished by the defendants No.1 to 4 to the plaintiff at the time of entering in the alleged sale agreement is got up and concocted layout plan. The defendants No.1 to 3 denied allegations of plaint para No.3 15 Judgment O.S.No.17069/2004 to 14. The defendants No.1 to 3 submits that they have sold land measuring an extent of 1 Acre 7 Guntas in favour of defendant No.5 under registered sale deed dated 01/03/2004. The defendants No.1 to 3 prays to dismiss the suit with cost.
13. That inspite of service of summons the defendant No.4 not appeared and placed exparte. The defendant No.5 appeared and filed his written statement. The defendant No.5 denied entire plaint allegations. The defendant No.5 submits that the suit filed by plaintiff for relief of permanent injunction in respect of the alleged non existence of suit schedule property is not sustainable either in law of on facts. That without seeking declaratory relief of title and consequential reliefs, the suit filed for bare injunction is not maintainable. The defendant No.5 submits that description of the property, its extent and the boundaries mentioned in 16 Judgment O.S.No.17069/2004 the schedule to the plaint are not correct. That the plaintiffs is making an attempts to lay claim for portion in the land measuring an extent of 1Acre 7 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, (Previously Bangalore South Taluk) under the guise of having purchased site bearing list No. under the registered sale deed. There cannot be site bearing house list number in agricultural land. The house list number indicates that property is Gramatana property. However plaintiff is trying to lay claim for portion in the land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South taluk and presently Bangalore East Taluk. The plaintiff has to establish that there is sites bearing the house list number with its extent & boundaries as mentioned in the sale deed & that the said sites is within the Gramatana limits & then only the plaintiff 17 Judgment O.S.No.17069/2004 can claiming a right over the suit schedule property failing which the suit is liable to be dismissed.
14. The defendant No.5 further submits that plaintiff is not having title & possession to the property as it is described in the schedule to the plaint. The court paid is insufficient. There is no cause of action for the suit and hence plaintiff is not entitle for the relief of permanent injunction for want of cause of action. The defendants No.1 to 3 are title holders and in possession and enjoyment of land measuring an extent of land 3 Acre 17 Guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk and they have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour of Padmavathi Madareddy/defendant No.4, they have retained the land measuring 1 Acre 7 guntas, they were in possession and enjoyment of said 18 Judgment O.S.No.17069/2004 extent 1 Acre 7 Guntas of land as absolute owners thereof. The defendants No.1 to 3 have sold said extent of 1 Acre 07 Guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk in his favour under the registered sale deed on 01/03/2004 and rectification deed dated 29/03/2004. Since from the date of purchase 01/03/2004 possession of land has been delivered to him, he is in possession of said extent of 1 Acre 07 guntas of land in Sy.No.81/2 of Horamavu Village, K.R Puram, Bangalore East Taluk as an absolute owner and khata of property mutated in his name as per M.R No.48/0304 and entered his name in the pahanies in respect of the aforesaid land. Then he approached the survey department and said land in Sy.No.81/2 of Horamavu village, being surveyed and phoded, land measuring an extent of 107 guntas has been assigned with new Sy.No.81/3. That the aforesaid extent of 1Acre 7 guntas in new Sy.No.81/3 (old Sy.No.81/2) of 19 Judgment O.S.No.17069/2004 Horamavu Village has not been converted for non agricultural residential purposes and it remains as an agricultural land. The defendant No.5 denied allegations or plaint para No.2 to 14.
15. The defendant No.5 further submits that the document upon which the plaintiff is relying in support of his title and possession the schedule property do not in any manner relate to the land in Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, hence the plaintiff can not claim any right of possession over any portion of the land in Sy.No.81/3 (Old No.81/2) of Horamavu Village, K.R Puram Hobli. The defendant No.5 prays to dismiss the suit of plaintiff with costs.
16. On the basis of above pleadings following Issues are framed:
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Judgment O.S.No.17069/2004
:ISSUES:
(1) Whether the plaintiff proves that his lawful possession and enjoyment over the suit schedule property as on the date of the suit?
(2) Whether the plaintiff proves the alleged obstructions?
(3) Whether the plaintiff is entitled to the reliefs claimed?
(4) What order ?
17. The plaintiff examined as PW.1 and marked ExP1 to ExP19. The defendant No.1 examined as DW.1. The defendant No.5 examined as DW.2 and marked ExD31.
18. The plaintiff counsel argued. The defendants No.1 to 3 counsel argued. The defendant No.5 counsel argued and filed written arguments with citations. Perused records.
19. My findings to above Issues are as under
Issue No.1) In Negative 21 Judgment O.S.No.17069/2004 Issue No.2) In Negative Issue No.3) In Negative Issue No.4) See final order for following:
:REASONS:
20. Issues No.1 to 3:
The plaintiff P.Ajayan S/o T.Appukuttan Nair filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that he is absolute owner in possession and enjoyment of suit schedule property. He has purchased Site No.20 in the schedule property from C.K.Manoharan Nambiar for valuable consideration under registered sale deed on 13/02/1992. The defendants No.1 to 3 were earlier original owners of schedule site No.20 and through their power of attorney holder defendant No.4 sold schedule site his vendor him on 25/05/1992 under registered sale deed. 22
Judgment O.S.No.17069/2004 After purchase of the site No.20 from his vendor, he got khata changed in to his name in the village panchayat. That he has constructed house in schedule site as per the plan and he is residing there along with his family since the year 2002. The defendants No.1 to 3 were original owners of the land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, during the year 1991, they formed layout of sites in the Northern portion of their land in Sy.No.81/2 to an extent of 1 acres 24 Guntas with a total number of 47 sites and got House list Khatha allotted to the sites and offered to sell to intending purchasers through their power of Attorney holder defendant No.4. The schedule site was allotted with house list No.122/2. These sites were bounded North: Land in Sy.No.81/1 belonging to Yamanna, East: land in Sy.No.84 belonging to Baluki Dasappa, West: Jayanthi grama, hamlet of Horamavu Village, South: the land (now sold) belonging to defendant No.4 in same Sy.No.81/2. 23
Judgment O.S.No.17069/2004
21. The PW.1 further deposed that like him many others have purchasers of sites as from defendants No.1 to 3 constructed their houses in their respective sites by spending their hard earned money as well as by availing house construction loans from banks and financial institutions. He and other purchasers are in peaceful possession of respective sites with the houses on them. That for the past thirteen years there was no agricultural operation on the land in Sy.No.81/2 where the layout is formed and fully developed residential layout, Horamavu Panchayat Authority has approved the residential layout by issuing House list numbers and House building licence to the site owners. Such being the state of the affairs on 21/10/2004 the defendant No.5 with his gang and henchmen appeared in the layout with untenable claim that he has purchased the land, wherein the layout was formed by the defendants No.1 to 3 about 13 years ago and sold the said sites to him 24 Judgment O.S.No.17069/2004 and other purchasers. The defendant No.5 claims that he has purchased the land wherein the layout was formed under registered sale deed dated 01/03/2004 to an extent of 1 Acre 7 Guntas agricultural land from defendants No.1 to 3 and their children. On 21/10/2004 the defendant No.5 along with gang and henchmen threatened me and other owners of sites and houses in the layout to give up their properties or else they would be forcibly evicted from our properties. Against this forceful threatened interference and eviction by the defendant No.5, he and other site owners have filed police complaint in the Ramamurthy Nagar Police Station. He along with site owners tried to contact defendants No.1 to 4 to find out about the untenable claim of the defendant No.5 over their properties. But defendants No.1 to 4 were avoiding to answer his queries and other purchasers. It has become clear to him and other owners of the sites in the layout that defendants No.1 to 5 in collusion 25 Judgment O.S.No.17069/2004 with each other fraudulently engineered and registered the sale deed now claimed by the defendant No.5 to illegally knock off and grab my properties and properties of others in the layout and for making unlawful gain for themselves.
That after formation of sites in their land in Sy.No.81/2 and sale of sites under registered sale deeds to him and other purchasers for valuable consideration and putting the purchasers in possession of the properties, defendants No.1 to 3 had no more rights, title or interest remaining with them in respect of the land to convey to the defendant No.5 under the sale deed on 01/03/2004. It is fraudulent instrument and the same does not confer any title to the defendant No.5 in respect of the very same land wherein the layout was formed. The sale deed claimed by the defendant No.5 is a nullity and it does not affect in any manner his lawful title, right and interest on the suit schedule property. The defendant No.5 also lodged caveat in Civil Judge Jr.Dn 26 Judgment O.S.No.17069/2004 court, Bangalore, which court has no jurisdiction over the area, against him and other site owners when the property in question is situation with in Bangalore Metropolitan limits within jurisdiction of this court.
22. The PW.1 further deposed that he and other site owners in the layout are living under the threat of forceful eviction by the defendant No.5 and his supporters, who with his money and muscle power physically interfering and threatening the plaintiff of dispossession of his property. The defendants No.1 to 5 by creating fraudulent title deeds and with manipulated revenue records made on the strength of such fraudulent title deeds are trying to interfere with his peaceful possession and enjoyment of schedule property. The PW.1 prays to decree the suit as prayed in the plaint. In support of oral evidence PW.1 marked the documents ExP1 to ExP19.
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Judgment O.S.No.17069/2004 23. The defendant No.1 Narayanappa S/o
Venkataswamappa @ Chikkabbaiah filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that the plaintiff filed above suit for permanent injunction in respect of non exist alleged suit schedule properties, the description of the properties, boundaries, measurements in the plaint schedule is imaginary and not in existence. That the land bearing Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South Taluk, (Presently Bangalore East Taluk) totally measuring 3 acres 17 Guntas originally belongs to their grandmother Venkatamma, she executed registered Will dated 13/06/1988 in favour of him and his two brothers namely Nagaraja, Jayaram and his sister Pullamma. Their grandmother sold 1 acre 20 guntas in favour of Munivenkatamma on Southern Portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title, interest and possession as per her 28 Judgment O.S.No.17069/2004 last WILL executed in their favor. They became the absolute owners of land measuring 1 acre 37 guntas including kharab of 0.06 Guntas in the said Survey number, which is bounded by East: land of Baluki Dasappa, West: Jayanthi Village, North: land of Yamanna and South: remaining portion in Sy.No.81/2 sold to Munivenkatamma. He further deposed evidence that he and defendants No.2 & 3 sold Southern portion of Sy.No.81/2 measuring 30 guntas in favour of Padmavathi Madireddy and retained 1 acre 13 Guntas including 6 guntas of kharab, which is Northern portion of Sy.No.81/2. The defendants No.1 to 3 are agriculturist doing agriculture for their livelihood in the said land retained by them, in order to meet their urgent family necessities they have sold the said land measuring 1 acre 13 guntas including 6 guntas kharab in Sy.No.81/2 of Horamavu Village in favour of defendant No.5 Y.N.Kondareddy in the year 2004, due to mistake crypt in 29 Judgment O.S.No.17069/2004 mentioning on boundaries under the aforesaid sale deed, they have executed rectification deed immediately. After the purchase Y.N.Kondareddy became absolute owner in possession of said land and same is bounded by East: land of Baluki Dasappa, West: Jayanthi Village, North: land of Yamanna and South: land of Padamavathi Madireddy. Further the said land sub phoded as Sy.No.81/3 measuring 1 acre 7 Guntas, the mutation and RTC entered in the name of defendant No.5. The defendants No.1 to 3 apart from selling the said land Y.N. Kondareddy never sold to anybody and never parted its possession till they sold in favour of Y.N.Kondareddty. The defendants No.1 to 3 are not benefited with education and not acquainted with worldly affairs, they know only put signature in Kannada not knowing reading and writing any of the languages. That false allegation of the plaintiffs that they executed GPA in respect of alleged Katha No.122/1, 122/2, 129/2, 129/3 30 Judgment O.S.No.17069/2004 and 135/4 properties in favour of defendant No.4 and in turn she representing them sold alleged site No.20 alleged house list Katha No.122/2 measuring 30 X 40 feet in favour of plaintiff during the year 1992 is false. They have no such Katha property or sites at the alleged Horamavu village limits, the allegations of plaintiffs that layout of sites formed in their land in Sy.No.81/2 of Horamavu village out of 1 acre 24 Guntas is false, after alienation they have not possessed 1 acre 24 Guntas either to form alleged layout of sites, in fact they never approached Horamavu village Panchayath for obtaining Katha in their names, the alleged Katha bearing No.122/2 at Horamavu village, K.R.Puram Hobli are bogus, fictitious Katha number, fraudulently concocted and created by the plaintiffs to suit their false convenience and attribute claims in their alienated agricultural land in Sy.No.81/2.
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Judgment O.S.No.17069/2004
24. The DW.1 further deposed that plaintiff has concocted and got up documents styled as sale deed in respect of non existed property by misusing the bogus and concocted documents, the plaintiffs attempted to gain, interest in their alienated properties belongs to Y.N.Kondareddy by imaginary cause filed the above suit. That till they sold land measuring 1 acre 7 Guntas in Sy.No.81/2 in favour of Y.N.Kondareddy, the said land continued to be revenue assessed land entered in the RTC records maintained by the revenue department and continued to be agricultural cultivable lands, they never obtained any conversion for non agricultural residential purposes and never formed any illegal layout in the said land, They have not sold any piece or inch to anybody. The alleged sale deed of plaintiffs not reflect Survey number in which the alleged sites are formed, That after alienating our land in Sy.No.81/2 measuring 1 acre 7 Guntas in favour of Y.N. Kondareddy, they have no 32 Judgment O.S.No.17069/2004 interest in the said land, the alleged cause of action is false and imaginary. The DW.1 prays to dismiss the suit of the plaintiff with exemplary cost.
25. The defendant No.5 Y.N.Kondareddy S/o Narayana Reddy filed his affidavit in lieu of examination in chief as DW.2 and deposed evidence that the plaintiff filed the above suit against the defendants herein for the reliefs of permanent injunction in respect of residential premises bearing site No.20 formed in the northern portion of land in Sy.No.81/2 of Horamavu Village in house list katha No.122/2, K.R.Puram Hobli, Bangalore South Taluk measuring East to West : 30 feet and North to South:40 feet with boundaries i.e., the suit schedule property. That the suit of plaintiff for Permanent Injunction in respect of the alleged non existed suit schedule property not sustainable either in law or on facts and as such suit has to be 33 Judgment O.S.No.17069/2004 dismissed. That without seeking for the declaratory relief of title mere suit for bare injunction is not maintainable in law and hence the plaintiffs not entitle for the relief's of permanent injunction. He is bonafide purchaser of agricultural land bearing old Sy.No.81/2 and New No.81/3 measuring 1 acre 7 guntas of Horamavu village for valuable consideration from rightful owners namely the defendants No.1 to 3 after enquiry and verifying the title of his vendor and comes to the conclusion that the vendors having marketable title to alienate the said property and purchased under registered sale deed on 01/03/2004 for valuable consideration. Therefore his right, title interest and possession have to be protected under law. The description of the plaint schedule property extent and boundaries mentioned in the plaint schedule is not at all correct. The boundaries and extent and property as stated in the plaint and the schedule as not at all pertaining to old Sy.No.81/2 34 Judgment O.S.No.17069/2004 and New No.81/3 of Horamavu village, K.R. Puram Hobli, Bangalore East Taluk and as such suit has to be dismissed. That the plaintiff is making attempts to lay claim in portion of land measuring to an extent of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village K.R.Puram Hobli, Bangalore East Taluk under the guise of having purchased a site bearing house list number the registered sale deed. The suit schedule property is nothing to do with the land bearing old Sy.No.81/2 and New Sy.No.81/3 of Horamavu village, and the alleged description of the plaint schedule, its boundaries and the sale deed referred to in the plaint is in respect of the property situated in the Gramatana of Horamavu and not at all pertaining to the agricultural land.
26. The DW.2 further deposed that there cannot be site bearing House list number in the agricultural land. The house list number indicates that the property is Gramatana 35 Judgment O.S.No.17069/2004 property. However the plaintiff is trying to lay to claim for the portion in the land bearing an extent of 1 acre 7 guntas in old survey No.81/2 of Horamavu village, K.R.Puram Hobli, Bangalore South Taluk, and presently Bangalore East Taluk and contentions taken by the plaintiff in the pleadings and in the evidence affidavit the documents relayed upon by him are different to each other and therefore the plaintiff is not entitled for any relief as sought for in the plaint claiming the suit property in the portion of the land in Sy.No.81/2 of Horamavu village. That the plaintiff has establish that there is site bearing house list No. with its extent and boundaries as mentioned in the sale deed and the said site is within the gramatana limits and then only the plaintiff can claim right over the suit schedule property. The plaintiff failed to establish the property mentioned in the sale deed and also in the plaint schedule and as such suit has to be dismissed. The plaintiff is not having tile and 36 Judgment O.S.No.17069/2004 possession to the property described in the plaint schedule and as such the plaintiff cannot value the site at Rs.1000/ under section 26(C) of KCF and SV Act 1956. The plaintiff has to value the suit on the market value of the suit property. That the vendor of the plaintiff has no manner of right title interest or possession over the suit schedule property and as such the plaintiff does not derive any right, title or possession. The document produced by the plaintiff are all concocted, created and got up documents. The documents are not at all existence in Horamavu village panchayath. The vendors of plaintiff also does not find place in the Horamavu village Panchayath. On the strength of the created and concocted documents false suit came to be filed against him on the non existence of the suit schedule property. There is no cause of action for the suit and the plaintiff is not entitle for permanent injunction for want of cause of action. That the defendant No.1 to 3 are 37 Judgment O.S.No.17069/2004 the title holders and in possession and enjoyment of land measuring to an extent of 3 acres 17 guntas in Sy.No.81/2 of Horamavu Vilalge, K.R Puram Hobli, Bengalore South Taluk having sold to an extent of 1 acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour defendant No.4/Padmavathi Madireddy and having retained the land measuring 1 acre 7 guntas and they were in possession and enjoyment of 1 acre 7 guntas of land as absolute owners. That the defendants No.1 to 3 and their children have sold the said 1 acre 7 guntas in Sy.No.81/2 of Horamavu Village in his favour under registered sale deed dated 01/03/2004 for valuable consideration. The vendors have noticed that there is some discrepancy in the boundaries and therefore they have executed rectification deed dated 29/03/2004. That ever since the date of purchase he has been in possession and enjoyment of 1 acre 7 guntas of land in Sy.No.81/2 of Horamavu Village, by 38 Judgment O.S.No.17069/2004 exercising his right of ownership and possession. That on the basis of his lawful ownership and possession the concerned revenue authorities have lawfully effected mutation in M.R No.48/20032004 and his name has been entered in RTC and pahanies in respect of the said property. Since the date of purchase he is paying Kandayam in respect of the said property. That after purchase he approached survey department to measure and fixed the boundaries in respect of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu Village. The survey authorities surveyed and fixed the boundaries in respect of the said property to an extent of 1 acre 7 guntas and assigned with new Sy.No.81/3. That aforesaid extent of 1 acre 7 guntas in New Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village has not been converted for non agricultural residential purposes and it remains as on agricultural land. Further his vendors have not at all formed any sites in the said land and sold it to any 39 Judgment O.S.No.17069/2004 persons including the plaintiff at any point of time and remained as an agricultural land and revenue authorities lawfully entered his name in revenue documents.
27. The DW.2 further deposed that averments made in para No.2 of the plaint that under the registered sale dated 13/02/2002, the site No.20 alleged formed in Sy.No.81/2 of Horamavu village has been purchased by the plaintiff from his vendor C.K.Manoharan nambiar under registered sale deed on 25/02/1992 is false. The alleged layout plan and documents of sale deeds and GPA are got up, concocted and created for the purpose of filing this suit. The DW.2 denied averments made in para No.3 to 13 of the plaint as false. That no sites have been formed in the land bearing old Sy.No.81/2 and New No.81/3 and as such the alleged sale deed are not at all valid one and the purchasers are not at all in possession of their respective sites. The DW.2 denied 40 Judgment O.S.No.17069/2004 the allegation of plaintiff that he and his men came to the alleged layout on 21/10/2004 and threatened the plaintiff and other owners of interference and eviction and police complaint is lodged as false and baseless. No such complaint has been lodged against him. The alleged complaint produced by the plaintiff is created and got up complaint. The documents upon which the plaintiff is relaying in support of his title and possession of the schedule property do not in any manner relayed to the land in Sy.No.81/3 (Old Sy.No.81/2) of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk and as such the plaintiff cannot claim any right or possession over any portion of land.
28. The DW.2 further deposed that defendants No.1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu village in favour of Padmavathi Madireddy. The defendants No.1 to 3 have not entered into any other 41 Judgment O.S.No.17069/2004 transactions with the defendant No.4 except the sale deed referred to above which has been executed by the defendants No.1 to 3. That the defendants No.1 to 3 have not at all executed GPA in favour of defendant No.4. No power has been confirmed upon the defendant No.4 under the alleged GPA. After sale by the defendants No.1 to 3 in his favour, defendants No.1 to 3 did not own and possess any land. The alleged layout plan is a got up and concocted one. In the sale deed as well as schedule given in the plaint there is no mention that the suit schedule property is the portion of Sy.No.81/2 of Horamavu village. There are no records to show that the suit schedule property comes within the jurisdiction of Horamavu village panchayath. The suit schedule property is not at all in existence. The documents produced are all village panchayath records are not at all pertaining to Sy.No.81/2 or 81/3 of Horamavu village, he applied before the Right to information officer 42 Judgment O.S.No.17069/2004 under the RTI Act to furnish the documents received by the plaintiff before the village panchayath authorities, BBMP authorities, Tahsildar, and other authorities. They have sent the information stating that the documents applied by him are not at all available in the said offices. The plaintiff trespassed into the portion of land bearing (Old Sy.No.81/2) measuring 1 acre 7 guntas and New No.81/3 of Horamavu village and got constructed the building. In that regard he filed suit in OS.No.3483/2005 on the file of this court for the reliefs of declaration, mandatory injunction, possession and other reliefs. The said suit is filed not only against the plaintiffs but also others. The said suit is pending. The DW.2 prays to dismiss the suit with exemplary costs. In support of oral evidence DW.1 marked ExD1 to ExD31.
43
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29. The defendant No.5 counsel while arguing relied upon the decisions reported in 1) ILR 2005 KAR 884 2) AIR 1979 CAL 50, 3) AIR 1999 SC 1441, 4) AIR 1962 Madras 149, 5) ILR 2010 KAR 2996, 6) ILR 1998 KAR 1, 7) AIR 1990 Orissa 124, 8) AIR 2004 Karnataka 444, 9) (1998) 9 SCC 719, 10) AIR 1998 KAR 321, 11) ILR 2007 KAR 339. The relevant citations are discussed below.
ILR 2005 KAR 884
T.L.Nagendra Babu V/s Manohar Rao Pawar
Suit for Declaration and Injunction
requirement of evidence - Duty of the Court - Held - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.
ILR 2007 KAR 339
Aralappa V/s Jagannath and others
44
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Specific Relief Act 1963Section 34Declaration of status or rightDiscretion of CourtHeld, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suitFurther held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief The appropriate relief consequential to declaration of ownership would be recovery of possession of the property When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainableCourt below was justified in dismissing the suit as not maintainableAppeals are dismissed.
30. The burden is on the plaintiff to prove that he is the absolute owner and in lawful possession and enjoyment of the suit property as on the date of suit and defendant 45 Judgment O.S.No.17069/2004 caused interference to his possession and enjoyment over the suit schedule property. The contention of the plaintiff that he has purchased the suit schedule property under registered sale deed dated 13/02/2020 from C.K.Manoharan. That earlier defendant Nos.1 to 3 were owners of the site No.20, their power of attorney defendant No.4 Madireddy S. Padmavathi sold the said site to his vendor under registered sale deed dated 25/05/1992 and he has purchased site No.20 from his vendor and got mutated khatha in his name from the village panchayath and Horamavu village panchayath issued khatha extract in from No.10 and he has also constructed the house as per the plan in the schedule site and residing in the suit schedule property along with his family members.
31. The further contention of the plaintiff that defendants No.1 to 3 were original owners of Sy.No.81/2 of Horamavu 46 Judgment O.S.No.17069/2004 village, K.R. Puram hobli and in the year 1991 they are formed layout of sites in the northern portion of the said land to the extent of 1 acre 24 guntas and formed total number of 47 sites and got house list khatha allotted to the said sites and offer to sell the said sites to the intending purchasers through their power of attorney i.e. defendant No.4. The schedule site was allotted with house list No.122/2. The northern portion of the Sy.No.81/2 to an extent of 1 Acre 24 Guntas wherein the defendants formed the residential layout with 47 sites was bounded on North:
land in Sy.No.81/1 of Horamavu village and East by land in Sy.No.84 of Baluki Dasappa, West by Jayanthi grama and hamlet of Horamavu village and South the land now sold belonging to the defendant No.4 the same Sy.No.81/2 and all 47 sites were sold to different purchasers including him in the year 1992. Hence defendants No.1 to 3 did not remain any right title over the northern portion of land in 47 Judgment O.S.No.17069/2004 Sy.No.81/2. Like him other purchasers of the sites from defendants No.1 to 3 have also constructed the house in their property and the entire land bearing Sy.No.81/2 was developed. Such being the state of affairs the defendant No.5 with his gang and henchmen came to the schedule property on 21/10/2004 stat that he has purchased the land wherein the lay out was formed by defendants No.1 to 3 about 13 years back and sold the site to him and other purchasers. The defendant No.5 contending that he has purchased the land to the extent of 1 acre 7 guntas from defendants No.1 to 3 and their children on 01/03/2004 and defendant No.5 with his gang and henchmen threatened him and other owners of the sites and houses in the lay out to hand over the properties otherwise they will be possible evicted from the properties. Hence defendant No.5 causing interference with his possession and enjoyment over suit schedule properties colluding with other defendants and 48 Judgment O.S.No.17069/2004 defendants No.1 to 5 have created fraudulent documents of title deeds and manipulated the revenue records and trying to interfere with his possession and enjoyment over the suit schedule property. The plaintiff examined as PW.1 as discussed above. In support of oral evidence the plaintiff/PW.1 marked ExP1 to ExP8. The ExP1 is certified copy of certified copy of sale deed dated 13/02/2002 executed by C.K.Manoharan S/o P.V.Bhaskaran Nambiar in favour of plaintiff P.Ajayan in respect of suit schedule property bearing Site No.20, Khata No.122/2 situated at Horamau village, K.R.Puram Hobli, Bangalore East Taluk bearing East to west 40 feet and North to South 30 feet. The ExP2 is certified copy of sale deed dt.05/05/1992 executed by defendants No.1 to 3 through their GPA holder defendant No.4 in favour of C.K.Manoharan S/o P.V.Bhaskaran Nambiar in respect of suit schedule property.
The ExP3 is copy of layout map. The ExP4 is encumbrance 49 Judgment O.S.No.17069/2004 certificate for the period from 01/06/1989 to 31/09/2003, wherein there are entries regarding sale of site No.20 khatha No.122/2 by defendant No.1 to C.K. Manoharan on 25/05/1992 and in turn by said C.K. Manoharan to plaintiff P.Ajayan on 13/02/2002. The ExP5 is demand register of site No.20 for the year 20012002, wherein name of plaintiff is appeared as owner and occupant of the property. The ExP6 is tax paid receipt. The ExP7 is construction permission and ExP8 is sanctioned plan issued by village panchayath, Horamavu village for construction of building in site No.20 of Horamavu village, K.R.Puram Hobli to present plaintiff P. Ajayan. The ExP9 is endorsement given by Secretary, Hormamavu Gram Panchayat stating that in Site No.20, Katha No.122/2 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk P.Ajayan S/o T.Appukuttan constructing house and it come within jurisdiction of Horamavu Gram Panchayat. The ExP10 to 50 Judgment O.S.No.17069/2004 ExP12 are tax paid receipts. The ExP13 is encumbrance certificate for the period from 30/09/2003 to 31/03/2004 relating to site No.20, khatha No.122/2, Property No.81/2 of Horamavu village. The ExP14 is encumbrance certificate for the period from 01/04/2004 to 25/10/2004 relating to site No.20 khatha No.122/2, Property No.81/2 of Horamavu village. The ExP15 to ExP18 are photographs marked as they belong to suit schedule property. The ExP19 is the complaint filed by the plaintiff to the SubInspector of Ramamurthy Nagar police station alleging harassment to the residents by some miscreants.
32. On the contrary the defendant No.1 examined as DW.1 as discussed above and he denied the allegation of the plaintiff that plaintiff is the owner of the suit schedule property and defendant No.1 contention that there is no existence of suit schedule property, the description of the 51 Judgment O.S.No.17069/2004 property boundaries measurement mentioned in the plaint schedule is imaginary. The defendant No.1 contention that the land bearing Sy.No.81/2 of Horamavu village, K.R. Puram hobli, Bengaluru South Taluk (presently Bengaluru East Taluk) totally measuring 3 acres 0.17 guntas belonged to his grandmother Venkatamma and she was executed Registered Will dated 13/06/1988 in his favour and his two brothers Nagaraja, Jayaram and sister Pullamma. His grandmother sold 1 acre 0.20 guntas in favour of Munivenkatamma on the southern portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title and possession of said portion as per the last Will executed in their favour and they became the absolute owners of the land measuring 1 acre 37 guntas including kharab of 0.06 guntas in the said survey number, which is bounded on East: land of Baluki Dasappa, West: Jayanthi village, North: land of Yamanna and South: remaining 52 Judgment O.S.No.17069/2004 portion in Sy.No.81/2 sold to Munivenkatamma. The defendants No.1 to 3 are agriculturists and for their livelihood they have sold 1 acre 13 guntas including 6 guntas of kharab in Sy.No.81/2 of Horamavu village in favour of defendant No.5 Y.N. Kondareddy in the year 2004, due to mistake crypt in mentioning in boundaries under the sale deed, they have executed rectification deed immediately, after purchase Y.N. KondaReddy became the absolute owner in possession of land sold by them and same was bounded by East: Land of Baluki Dasappa, West:
Jayanthi village, North: land of Yamanna and South by land of Padmavahi Madireddy. In pursuance of registered sale deed in favour of Y.N. Kondareddy he continued in possession of the said land and afterwards the said land was sub phoded as Sy.No.81/3 and the said Kondareddy is in possession and enjoyment of the said land and his name is 53 Judgment O.S.No.17069/2004 appearing in the revenue records i.e., RTC as owner in possession.
33. The defendant No.5 said Y.N. Kondareddy examined as DW.1 and he has also deposed the evidence as contended by defendant No.1 as discussed above as he purchased the land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village from defendants No.1 to 3 afterwards it is given new number as Sy.No.81/3 of Horamavu village. The defendant No.5 also denied the ownership, title and possession of the plaintiff over the suit schedule property and also submits there is no existence of the suit schedule property within the boundaries as contended by the plaintiff. The defendant No.5 contention that the plaintiff trespassed in to the possession of the land bearing Sy.No.81/2 measuring 1 acre 7 guntas and new Sy.No.81/3 of Horamavu and constructed the building and in this regard he filed the suit in 54 Judgment O.S.No.17069/2004 OS.No.3483/2005 on the file of this court for the relief of declaration and mandatory injunction, possession and other reliefs.
34. The defendant No.5/DW.2 in support of oral evidence marked ExD1 to ExD31. The ExD1 is certified copy of plaint in OS.No.3483/2005 and ExD2 is certified copy of the written statement in OS.No.3483/2005 which is filed by present defendant No.5/ Y.N.Kondareddy against the defendant No.1 Narayanappa and others. The ExD3 is certified copy of the plaint and ExD4 is certified copy of written statement in OS.No.16322/2005 pending on the file of this court, which is filed by Renuka Vijayakumar & others against Narayanappa and others. The ExD5 is certified copy of the sale deed dated 01/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 in respect of land measuring 1 Acres 17 Guntas 55 Judgment O.S.No.17069/2004 including 6 Guntas Kharab in Sy.No.81/2 of Horamavu Village, K.R.Puram Hobli, Bangalore. The ExD6 is certified copy of rectification deed dated:29/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 rectifying about boundaries mentioned in the sale deed dated:01/03/2003 towards West: Jayanti Grama, Gomala land instead of land of Baluki Dasappa, towards North:Vemanna's land instead of land of Padmavati's land, towards South:
Padmavathi's land instead of Baluki Dasappa's land. The ExD7 is Mutation Register No.48 regarding change of khatha of Sy.No.81/2 measuring from 1 acre 07 guntas from defendant No.1 Narayanappa in favour of defendant No.5 Y.N. Konda Reddy. The ExD8 is certified copy of record of right of land bearing Sy.No.81/2 to the extent of 1 Acre 7 Guntas of Horamavu village in the name of defendant No.5. 56
Judgment O.S.No.17069/2004
35. The ExD9 is certified copy of the Atlas map of Sy.No.81/2. The ExD10 is certified copy of Hissa tippani of Sy.No.81/2. The ExD11 is certified copy of form No.5 relating to Sy.No.81/2 of Horamavu village. The ExD12 is certified copy of the Karnataka revision settlement Aakaar bandh relating to Sy.No.81/2. In ExD13 four certified copies of record of rights relating to Sy.No.81/2 of Horamavu village are marked which are standing in the name of defendant No.5 Y.N. Kondareddy. The ExD14 is certified copy of encumbrance certificate for the period from 01/06/1989 to 06/06/2004 wherein there are entries regarding sale of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village by Narayanappa and others to Y.N. Kondareddy. The ExD15 is certified copy of the endorsement issued by Horamavu Grama Panchayath on 15/12/2004 mentioning that relating to khatha No.122/1, 122/2, 129/3, 135/4 of Sy.No.81/2 and 81/3 there are no 57 Judgment O.S.No.17069/2004 records standing in the name of Narayanappa, Nagaraju and Jayarama in their records. The ExD16 is marked in evidence as certified copy of the sale deed dt.15/04/1972, but in the said document written document subject matter is are not properly seen and unable to read the document, hence the said document is not discussed.
36. In ExD17 fourteen certified copies of endorsements issued by BBMP are marked as ExD17(1) to ExD17(14) those are issued by BBMP, Bengaluru on the application filed by Y.N. Kondareddy under RTI Act relating to information called in respect of house list Nos.122/1, 122/2, 135/4, 129/2, 129/3, site Nos.20, 28, 29, 27, 26, 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45 and 42 and the BBMP informed that relating to said sites in Sy.No.81/2, New Sy.No.81/3 of Hormavu village, there are no records i.e. lay out plan, sanctioned plan in their office records.. In ExD18 58 Judgment O.S.No.17069/2004 three mutation registers are marked as ExD18 (1) to ExD18(3) relating to transfer of Sy.No.81/3 measuring 1 acre 7 guntas Horamavu village from Narayanappa to Y.N. Kondareddy. The ExD19 is certified copy of the Atlas relating to Sy.No.81/3. The ExD20 is certified copy of the endorsement issued by K.R.Nagar police station on the application of Y.N. Kondareddy. The ExD21 is certified copy of the information furnished by the Sub Registrar, Banaswadi to Y.N. Kondareddy called under RTI Act. The ExD22 is the certified copy of the endorsement issued by the Deputy Commissioner, Bengaluru to Y.N. Kondareddy to the information called by Y.N. Kondareddy about conversion of land bearing Sy.No.81/2 of Horamavu village for non agricultural purpose and Deputy Commission furnished information that there are no records in their office relating to the information called by Y.N. Kondareddy. The ExD23 is certified copy of the endorsement issued by Tahsildar, 59 Judgment O.S.No.17069/2004 Bengaluru East Taluk informing that the land bearing Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village, K.R. Puram Hobli, Bengaluru there is no order of conversion for non agriculture purpose. In ExD24 two certified copies of tax paid receipts are marked. The ExD25 is certified copy of the application given by Y.N. Kondareddy to Tahasildar, Bangalore East Taluk for surveying the land and making phode in Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village. The ExD26 certified copy of sale deed dt.17/07/1991 discloses that Narayanappa S/o late Chikka Abbaiah, Nagaraj S/o late Chikka Abbaiah, and Jayaram S/o late Chikka Abbaiah i.e. defendants No.1 to 3 have sold 30 Gunatas in Sy.No.81/2 of Hormavu village, K.R.Puram Hobli, Bangalore South Taluk in favour of defendant No.4 Madireddy Sripadmavathi W/o Jagadish.60
Judgment O.S.No.17069/2004
37. The ExD27 is certified copy of order sheet in OS.No.1208/04 of Prl. Civil Judge(Jr.Dn) Bengaluru Rural filed by Lazarus K against Kondareddy Y.N. and ExD28 is certified copy of order on I.A.1 in the said suit. The ExD29 is certified copy of the survey sketch and ExD30 is certified copy of the mahazar relating to Sy.No.81/3 of Horamavu village. The ExD31 is certified copy of endorsement issued by Assistant Commissioner, Bengaluru north taluk to Y.N. Kondareddy informing about nonfiling of any case for purchase of land in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village in violation of Section 79 (a) and (b) of Karnataka Land Reforms Act.
38. The contention of plaintiff that he has purchased the suit schedule property bearing site No.20 from C.K. Manoharan Nambiar for valuable consideration under registered sale deed on 13/02/2002. The plaintiff has 61 Judgment O.S.No.17069/2004 produced and marked ExP1 to ExP19. The ExP1 is certified copy of the sale deed dated 13/02/2002 regarding purchase of suit schedule property by plaintiff from C.K. Manoharan.
The ExP2 certified copy of the sale deed dated 05/05/1992 executed by defendant No.1 to defendant No.3 through their General Power of Attorney holder defendant No.4 in favour of C.K. Manoharan S/o T. Bhaskaran Nambiyar in respect of the suit schedule property. Further the plaintiff PW.1 marked ExP7 and ExP8 construction permission and sanctioned plan obtained for construction of building in the suit schedule property. The ExP13 and ExP14 are encumbrance certificates of suit property. The ExP15 and ExP18 marked as photographs stating that they belongs to suit schedule property. The plaintiff relying on the documents produced and marked by him contended that he is the owner of the suit schedule property and after purchase of the suit schedule property by him from his 62 Judgment O.S.No.17069/2004 previous owner constructed building in the suit schedule property and residing therein along with his family members.
39. On the contrary the defendant No.1 examined as DW.1 in his evidence denied regarding execution of Power of Attorney in favour of defendant No.4 in respect of the suit schedule property. The defendant No.1/DW.1 in is evidence denied that sites were formed in Sy.No.81/2 of Horamavu village and out of 47 sites formed the defendant No.4 as General Power of Attorney of defendant No.1 to 3 sold the suit schedule property site bearing No.20 to plaintiff. The contention of DW.1 that in Sy.No.81/2 of Horamavu village K.R.Puram Hobli, Bengaluru South taluk (presently Bengaluru East taluk) totally measuring 3 acres 17 guntas and originally it belongs to their grand mother Venkatamma and she executed registered Will on 63 Judgment O.S.No.17069/2004 13/06/1988 in favour of him and his two brothers Nagaraja, Jayaram and sister Pullamma. That their grand mother sold 1 acre 20 guntas in favour of Munivenkatamma on southern portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, interest, title over the said portion of land as per last will executed in their favour. Hence they become the owners of land measuring 1 acre 37 guntas including 6 guntas kharab land in Sy.No.81/2 of Horamavu Further he and defendants No.2 and 3 have sold 30 guntas in Sy.No.81/2 of Horamavu village towards southern portion to defendant No.4 Sripadmavathi Madireddy and retained 1 acre 13 guntas including 6 guntas of kharab land which is in northern portion of Sy.No.81/2 and they were doing agriculture in the said land for their livelihood and thereafter for their family necessity they have sold 1 acre 13 guntas including 6 guntas of kharab land in Sy.No.81/2 of 64 Judgment O.S.No.17069/2004 Horamavu village in favour of defendant No.5 Y.N. Kondareddy in the year 2004, that mistake crept in mentioning the boundary of land in the sale deed, hence they have executed rectification deed rectifying immediately and afterwards Y.N. Kondareddy become the owner of the said property and he got mutated the said land and he is in possession and enjoyment of the said property.
40. The said defendant No.5 Y.N. Kondareddy examined as DW.2 in his evidence deposed the same set of evidence deposed by DW.1 in his evidence as discussed above. The contention of DW.2 that he purchased to an extent of 1 acre 7 gunas+ 6 guntas of kharab land in old Sy.No.81/2 and new Sy.No.81/3 of Horamavu village after verifying the record on 01/03/2004 and become the owner of the said land and he is possession and enjoyment of the said land. There are no sites formed in Sy.No.81/2 of Horamavu 65 Judgment O.S.No.17069/2004 village. The suit property is one of the site formed in Sy.No.81/2 of Horamavu as alleged by the plaintiff is false.
41. The DW.2 in support of oral evidence the marked ExD1 to ExD31. The ExD5 is certified copy of the sale deed dated 01/03/2004 regarding purchase of 1 acre 13 guntas in Sy.No.81/2 of Horamavu village by defendant No.5 from defendants No.1 to 3 and ExD6 is certified copy of the Rectification deed of the said sale deed regarding rectification of boundaries of the property towards west, south and north. Further as per ExD7 mutation register 1 acre 7 guntas in Sy.No.81/2 of Horamavu village transferred from defendants No.1 to 3 to defendant No.5. Further ExD8 is certified copy of the record of rights of land bearing Sy.No.81/2 to an extent of 1 acre 7 guntas of Horamavu village, K.R. Puram Hobli, Bengaluru East taluk for the year 20042005, where in the column No.9, the 66 Judgment O.S.No.17069/2004 name of defendant No.5 Y.N.Kondareddy appeared as owner and cultivator of the land in column No.10 and way of possession mentioned as purchase vide MR No.48/2003 2004. Further the ExD9 is Atlas map, ExD10 is Hissa Tippani and ExD11 is Form no.5 and ExD12 is Karnataka Revision Settlement Akaar bandh are relating to Sy.No.81/2 measuring 1 acre 07 guntas of Horamavu village in the name of defendant No.5. Further the ExD13(1) to ExD13(4) the record of rights of land measuring 1 acre 7 guntas in Sy.No.81/2 of Horamavu village discloses name of defendant No.5 Y.N. Kondareddy as owner and cultivator of the land for the years from 20042005 till 20092010. Under the circumstances the burden is on the plaintiff to prove that in land bearing Sy.No.81/2 to an extent of 1 acre 24 guntas of Horamavu village, the defendants No.1 to 3 have formed 47 sites and sold to different purchasers through their GPA holder defendant No.4. But to prove said 67 Judgment O.S.No.17069/2004 fact the plaintiff has not produced the conversion order copy of said land measuring 1 acre 24 guntas in Sy.No.81/2 of Horamavu village for non agriculture purpose issued by the competent authority along with layout plan, sketch of the said land and also house list numbers given to said 47 sites by the competent authority. The plaintiff contended that to the suit schedule property house list katha No.122/2 was given. But to prove said fact the plaintiff has not produced any documents.
42. Further the plaintiff examined as PW.1 in his cross examination deposed the evidence that his vendor purchased from Narayanappa, Nagaraja and others and he do not know the name of other vendors, he has to check his documents as to which document he has verified. The P.W 1 further deposed the evidence in his cross examination that he has not verified the title of Narayanappa and others. He 68 Judgment O.S.No.17069/2004 don't know the survey number of the property owned by Narayanappa and he do not remember the survey number of the property owned by Narayanappa and others. The P.W1 further deposed the evidence in his crossexamination he do not remember in which survey number the site is situated and the total extent of the survey number owned by Narayanapa and others. The PW.1 further deposed in the cross examination it is the Sy.No.81/2 in which the schedule site is situated, survey number is not mentioned in his sale deed. The PW.1 further deposed in his cross examination that he purchased site No.20. He has not produced any document that site No.20 is carved out of Sy.No.81/2 and he do not know the total extent of Sy.No.81/2 and do not remember boundaries of the entire land Sy.No.81/2 and he has not verified revenue documents of Narayanappa and others. The PW.1 further deposed in his cross examination that he do not know the defendant No.1 to 3 have sold 30 69 Judgment O.S.No.17069/2004 Gunats out of the said land to defendant No.4. He don't know the situation of 30 Guntas of land purchased by defendant No.4. He do not know if even on this date the RTC of Sy.No.81/2 shows the name of defendant No.5 for 1 acre 07 guntas and defendant No.4 for 30 guntas. The PW.1 further deposed evidence in his cross examination that "It is true in ExP1 and ExP2 there is no reference to Sy.No.81/2. I do not know if site No.20 owned by me is not part and parcel of Sy.No.81/2. It is true ExP3 is the zerox copy of layout plan. It is true that it does not bear seal of any authority. It is true to suggest that there is mention of Sy.No in ExP3". Therefore the PW.1 admits in his evidence as discussed above that he has not produced document that of site No.20 carved in Sy.No.81/2.
43. As discussed above the plaintiff has not produced the lay out plan regarding formation of 47 sites by defendant 70 Judgment O.S.No.17069/2004 No.1 to 3 in Sy.No.81/2 measuring 1 acre 24 guntas of Horamavu village and also not produced conversion order of said land if any issued by competent authority. Further in ExP1 sale deed in the schedule there is no mention that in Sy.No.81/2 of Horamavu village the suit schedule property bearing site No.20 is formed.
44. The DW.2 marked ExD17(1) discloses that house list number 122/1, 122/2, 135/4, 124/2, 129/3 relating to Sy.No.81/2 new Sy.No.81/3 of Horamavu village, The documents are verified in the office but said documents are not found in the revenue records in the name of Narayanappa, Nagaraja and Jayaram. Further ExD17(2) endorsement discloses that no sanction plan or lay out plan relating to site No.20, 29, 27, 28, 26, 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45 and 42 of Sy.No.81/2 new Sy.No.81/3 of Horamavu village are not found in their records and such 71 Judgment O.S.No.17069/2004 documents are not in the name of Narayanappa, Nagaraja and Jayaram in office records. In ExD17(3) the defendant No.5 called information regarding furnishing copies of kathas of site No.20, 29, 28 27, 26, 37, 21, 41, 38, 4, 5, 6, 7, 36, 34, 44, 45, 42, 23 in katha No.122/2, 122/1, 135/4 of Horamavu village and Revenue Officer furnished information that Namuna Nos.9 and 10 of the said property are not in the name of Nagaraju, Narayanappa and Jayaram. Further ExD23 endorsement issued by Tahsildar, Bengaluru East Taluk mentioning that in Sy.No.81/3 measuring 1 acre 17 guntas of Horamavu village there is no conversion of land. Therefore ExP23 it is clear that relating to said land Sy.No.81/2 new Sy.No.81/3 to an extent of 1 acre 24 guntas of Horamavu village, there is no order of conversion of land for agriculture purpose. Therefore from these documents produced and marked by DW.2 as discussed above, it is clear that the land measuring an 72 Judgment O.S.No.17069/2004 extent of 1 acre 7 guntas purchased by the defendant No.5 from defendant No.1 to 3, there is no order of conversion of the said land for non agriculture purpose and further the records of rights marked by DW2 at ExD8, ExD13(1) to ExD13(4) discloses that the land measuring 1 acre 7 guntas in Sy.No.81/2 of Horamavu village in the name of defendant No.5 Y.N. Kondareddy is agricultural land, hence at the time of filing suit by plaintiff in the year 2004 said land is agricultural land. That in the citation reported in ILR 2005 Karnataka 884 relied by the defendant No.5 counsel it is held that "Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted." Further in the another citation reported in ILR 2007 Karnataka 339 relied by the defendant No.5 counsel it is held that "In a suit for declaration of ownership and permanent 73 Judgment O.S.No.17069/2004 injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suitFurther held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential reliefThe appropriate relief consequential to declaration of ownership would be recovery of possession of the property When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainableCourt below was justified in dismissing the suit as not maintainableAppeals are dismissed". The both citation discussed above applies to the present case in hand, as in the present suit the plaintiff failed to prove her lawful ownership possession and enjoyment over the suit schedule property as on date of suit, hence question of interference by the defendants in the said property does not 74 Judgment O.S.No.17069/2004 arise. Hence plaintiff is not entitle for relief of permanent injunction against the defendants. The plaintiff failed to prove Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative.
45. Issue No.4:
In view of above discussion I proceed to pass the following :ORDER:
The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the stenographer, typed by him, then taken print out, corrected, signed and pronounced by me in the open court on this 22nd day of September 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
:ANNEXURE:75
Judgment O.S.No.17069/2004
WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 P. Ajayan S/o Sri. T. Appukuttan Nair
DOCUMENTS MARKED FOR PLAINTIFF
ExP1 : Certified copy of sale deed
ExP2 : Certified copy of sale deed
ExP3 : Copy of layout map.
ExP4 : Encumbrance certificate
ExP5 : Demand register
ExP6: Tax paid receipt.
ExP7 : Construction permission
ExP8 : Sanctioned plan
ExP9 : Endorsement
ExP10 to 12 : Tax paid receipts.
ExP13: Encumbrance certificate
ExP14: Encumbrance certificate
ExP15 to ExP18: Photographs
ExP19: Copy of Complaint
WITNESSES EXAMINED FOR THE DEFENDANTS
76
Judgment O.S.No.17069/2004
DW.1 : Narayanappa S/o Late Venkataswamappa,
DW.2 : Y.N.Kondareddy S/o Narayanareddy
DOCUMENTS MARKED FOR THE DEFENDANTS
ExD1: Certified copy of plaint in OS No.3483/2005
ExD2: Certified copy of W.S in OS No.3483/2005
ExD3: Certified copy of plaint in OS No.16322/2005
ExD4: Certified copy of W.S in OS No.16322/2005
ExD5: Certified copy of sale deed
ExD6: Certified copy of Rectification deed
ExD7: Certified copy of Mutation
ExD8: Certified copy of RTC
ExD9: Certified copy of Atlas
Ex.D10: Certified copy of Hissa Tippani copy ExD11: Certified copy of Form No.5 ExD12: Certified copy of the Karnataka Revision Settlement Akhar Bandh, ExD13(1 to 4) Certified copies of RTC ExD14: Certified copy of Encumbrance Certificate ExD15: Certified copy of Endorsement ExD16: Certified copy of Sale deed ExD17(1 to 16) Certified copies of Endorsements 77 Judgment O.S.No.17069/2004 ExD18(1 to 3) Certified copies of Mutations Register extracts ExD19: Certified copy of Atlas ExD20: Certified copy of Endorsement Ex.D21: Certified copy of RTI information by Sub Registrar, Banaswadi.
ExD22: Certified copy of Endorsement
ExD23: Certified copy of Endorsement
ExD24(1 & 2) Certified copies of Receipts
ExD25: Certified copy of Application given to Tahasildar
ExD26: Certified copy of Sale deed
ExD27: Certified copy of Order sheet in OS No.1208/2004
ExD28: Certified copy of Order on IA in OS No.1208/2004
ExD29: Certified copy of Survey Sketch
ExD30: Certified copy of Mahazar
ExD31: Certified copy of endorsement
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE.