Bangalore District Court
G. C Venkatesh vs Smt. Gopamma on 10 January, 2023
KABC0A0043862012
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri. P. G Chaluva Murthy,
M. A. L.L.M
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 10th day of January, 2023.
O.S.No.26810/2012 C/w OS No.7032/2016
Plaintiff:- G. C Venkatesh,
S/o Chikka Muniyappa,
Aged about 45 years,
R/at Gunjur Village,
Varthur Hobli,
Bangalore- 560 087.
[By M. Mohan Kumar & Associates- Adv]
V/s
Defendants:- 1. Smt. Gopamma,
W/o Not known to the Plaintiff,
Aged about 35 years,
2 OS No.26810/2012 C/w
OS No.7032/2016
2. Manjunath,
S/o Not known to the Plaintiff,
Aged about 32 years,
3. Shanthamma,
W/o Muttu,
Aged about 45 years,
4. Lilli Madamma,
W/o Venkatesh,
Aged about 40 years,
All are R/at Aswathanagar,
Munekolal,
Marathahalli Post,
Bangalore.
[Defendant No.1- dismissed]
[By Sri. G. A Viswanatha Reddy- Adv for D2
and 4]
[By ANR- Adv for D3]
Date of Institution of the suit 13.09.2012
Nature of the (Suit or pro-note, suit for
Declaration, Possession and
declaration and possession, suit for
Injunction Suit
injunction, etc.)
Date of the commencement of 03.01.2019
recording of the Evidence.
Date on which the Judgment was 10.01.2023
pronounced.
Year/s Month/s Day/s
Total duration 10 04 01
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
3 OS No.26810/2012 C/w
OS No.7032/2016
OS No.7032/2016
Plaintiff:- Sri. Manju,
S/o Late Venkatesh,
Aged about 36 years,
R/at No.161, 8th Cross,
Ashwath Nagara,
Marathalli Post,
Bangalore- 560 037.
[By V. Kumar & Associates- Adv]
V/s
Defendants:- 1. Sri. G. C Venkatesh,
S/o Chikka Muniyappa,
Aged about 45 years,
R/at Gunjur Village,
Varthur Hobli,
Bangalore- 560 087.
2. Sri. Manohar Reddy,
S/o Ashwath Reddy,
R/at Gunjur Village,
Varthur Hobli,
Bangalore East Taluk,
Bangalore.
3. Smt. Madamma,
D/o Ramiah,
Aged about 74 years,
R/at Gunjur Village,
Varthur Hobli,
Bangalore East Taluk,
Bangalore.
[By Sri. E. Venkatarami Reddy - Adv]
4 OS No.26810/2012 C/w
OS No.7032/2016
Date of Institution of the suit 29.09.2016
Nature of the (Suit or pro-note, suit for
Declaration, Possession and
declaration and possession, suit for
Injunction Suit
injunction, etc.)
Date of the commencement of 30.09.2019
recording of the Evidence.
Date on which the Judgment was 10.01.2023
pronounced.
Year/s Month/s Day/s
Total duration 06 03 12
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
The Plaintiff in OS No.26810/2012 is before this court seeking Declaration, declaring that the Plaintiff is the absolute owner of the Suit Schedule Property, for its possession and for other consequential reliefs. Similarly the plaintiff in OS No.7032/2016 is before this court seeking the relief of perpetual injunction against the defendants inrespect of the very same property.
2. For the sake of convenience the parties to the above proceedings will be referred to with their ranking assigned in OS No.26810/2012.
5 OS No.26810/2012 C/wOS No.7032/2016
3. The facts of the case in OS No.26810/2012:-
The Plaintiff is the absolute owner in possession and enjoyment of the Site bearing No.161, measuring East to West 30 feet and North to South 40 feet in all total measuring 1200 sq.ft situated at Aswathnagar, Munekolal Village, Varthur Hobli, Bangalore East Taluk, Bangalore now comes under the limits of BBMP having Khatha No.673/211/161/158, which is more fully described in the Schedule, having purchased the same under the Registered Sale Deed dtd.22.05.2003. Thereafter the Plaintiff got Khata transferred in his name and he has been in peaceful possession and enjoyment of the Suit Schedule Property. Now the grievance of the Plaintiff is that, the Defendants who are totally strangers to the Schedule Property, who have no manner of right, title, interest or possession over the Suit Schedule Property in the month of July 2012 illegally made attempts to trespass over the Suit Schedule Property and attempted to demolish the compound wall and constructed unauthorized structure over the Suit Schedule Property. Inspite of complaint to the 6 OS No.26810/2012 C/w OS No.7032/2016 jurisdictional police, no action has been taken by the police. Though there was an interim order by this court directing both the parties to maintain status- quo, the Defendants had illegally constructed structure in the Schedule Property and let it out to the tenants on rent. The Defendants are bound to demolish the illegal structure constructed on the Schedule Property. Under the circumstances, the Plaintiff approached this court seeking the aforesaid reliefs.
4. Pursuant to summons, the Defendants entered appearance through their respective counsels and filed their Written Statement.
5. The Defendant No.1 while denying the right, title and possession of the Plaintiff over the Suit Schedule Property, it is contended that, the suit is suffering from non-joinder of necessary parties and mis-joinder of the parties. The suit of the Plaintiff is not properly valued and court fee paid is insufficient. According to defendant No.1, the defendants are in possession and enjoyment of the Suit Schedule Property, since last 40 years and as such their 7 OS No.26810/2012 C/w OS No.7032/2016 possession cannot be disturbed. Of-course the Defendant No.1 while disputing the name of defendant No.4 as Lilli Yellamma, it is contended that defendant No.4 name is Madamma.
6. The defendant No.4 filed her written statement and defendant Nos.1 and 3 adopted the same. The Defendant Nos.1, 3 and 4 have disputed right, title and interest of the Plaintiff over the Suit Schedule Property. It is contended that, the Defendant No.4 is the absolute owner in possession and enjoyment of the Suit Schedule Property being granted by the Government of Karnataka vide notification dtd.13.05.1972. The Defendant No.4 after acquiring the Written Statement Schedule Property has put up a shed and she has been in continuous possession and enjoyment of the said property. The Plaintiff is stranger to the Written Statement Schedule Property. The Plaintiff in collusion with the alleged Madamma has created a bogus Sale Deed and got the same registered by showing one Mudamma as the grantee of the Schedule Property for the purpose of cheating. The 8 OS No.26810/2012 C/w OS No.7032/2016 said Sale Deed dtd.22.05.2003 does not bind the Defendant No.4. The Defendant Nos.1 and 2 are the children of Defendant No.4 and Defendant No.3 is friend of Defendant No.4.
7. Pursuant to amendment of plaint, the Defendant Nos.2 and 3 have filed Additional Written Statement wherein it is contended that, the Plaintiff was never in possession of the Suit Schedule Property and concocted a story to mislead this court. The Suit Schedule Property was never a vacant site and in the year 1994 the Government of Karnataka got built a house measuring 10 X 18 feet in the Schedule Property, in which the Defendant Nos.1, 2 and 4 are residing. Therefore the Defendants sought for dismissal of the suit.
8. On the basis of the pleadings and contentions of both the parties, my learned predecessor in Office, has framed the following issues on 23.11.2016:
1. Whether Plaintiff proves that he is the absolute owner in lawful possession and enjoyment of the Suit 9 OS No.26810/2012 C/w OS No.7032/2016 Schedule Property as on the date of the suit?
2.Whether Plaintiff further
proves that the Defendants are
interfering with the Plaintiff's
peaceful possession and enjoyment of the Suit Schedule Property?
3.Whether Plaintiff is entitled for the reliefs claimed in the suit?
4. What order? What decree?
Additional Issues
1. Whether the Plaintiff proves that the Defendants have illegally constructed a structure in the Suit Schedule Property during the pendency of the suit?
2. Whether the Plaintiff is entitled to demolish the alleged illegal structure said to have been constructed by the Defendant in the Suit Schedule Property as contended in plaint Para No.7(b) of the suit plaint?
3. Whether the Plaintiff is entitled for the reliefs sought for in Para No.7(a) and 7(b) for the suit plaint?10 OS No.26810/2012 C/w
OS No.7032/2016 Addl. Issue No.4 framed as per Orders dtd.12.03.2020.
4. Whether the Plaintiff proves that he has properly valued the suit plaint and has paid the required Court Fees, as required U/S 24(a) of the Karnataka Court Fees and Suit Valuation Act, 1958?
9. Facts of the case in OS No.7032/2016:-
The plaintiff is the absolute owner and in possession of property bearing No.161, present BBMP Katha No.673/211/161/168 measuring East to West 30 feet and North to South 40 feet, totally measuring 1200 sq ft alongwith four commercial shops and asbestor sheet roofed residential house situated at Ashwathnagara, Munekolala Village, Marathahalli, Bengaluru East Taluk, herein after called the suit schedule property, having acquired the same under the registered gift deed dtd.07.04.2016 said to have been executed by his mother Smt. Madamma @ Yellamma Madamma W/o Late Venkatesh. From the date of gift deed, the plaintiff is in possession 11 OS No.26810/2012 C/w OS No.7032/2016 and enjoyment of the suit schedule property. The mother of the plaintiff acquired the property byway of grant by the Government of Karnataka under Notification dtd.13.05.1972. Pursuant to grant his mother was in actual possession and enjoyment of the suit schedule property and later in the year 1992 the plaintiff's mother constructed shops in the suit schedule property in addition to residential house.
The further case of the plaintiff is that, the defendant No.2 with a malafide intention of knocking away the schedule property has set up defendant no.1 by concocting fabricated and forged documents and created sale deed dtd.22.05.2003. On the basis of created document, the defendant No.1 had filed OS No.26810/2012 against the plaintiff herein and others. The defendants are highly influential persons having political and local support, arrived at the suit schedule property on 19.09.2016 and attempted to dispossess the plaintiff from the suit schedule property. However the plaintiff was able to resist the illegal act of the defendants. According to plaintiff, the defendants 12 OS No.26810/2012 C/w OS No.7032/2016 obtained the sale deed fraudulently and on the strength of the same interfering with the possession and enjoyment of the suit schedule property by the plaintiff. Therefore the plaintiff filed the above suit for the relief of declaration, declaring the sale deed dtd.22.05.2003 as not binding on the plaintiff and sought for permanent injunction against the defendants from interfering with his possession and enjoyment of the suit schedule property.
10. Pursuant to summons, the defendants entered appearance through their counsel and filed their detailed written statement. The defendants while denying the right, title and possession of the plaintiff over the suit schedule property contended that, the defendant No.1 is the absolute owner of the suit schedule property having purchased the same under the registered sale deed dtd.22.05.2003 from Smt. Madamma, the original grantee of the suit schedule property, as per Hakku Pathra issued by the Government of Karnataka on 05.01.1973. From the date of purchase the defendant No.1 is in possession and enjoyment of 13 OS No.26810/2012 C/w OS No.7032/2016 the suit schedule property. According to defendants, the plaintiff and his wife Vasuda alongwith other third parties, who have no manner of right, title or interest or possession over the suit schedule property tried to trespass upon the suit schedule property, which compelled the defendant No.1 to lodge police complaint. Even thereafter the plaintiff and his henchmen attempted to demolish the compound wall and to put up unauthorized structure, the defendant No.1 filed OS No.26810/2012 in which an interim order of status- quo was granted infavour of defendant No.1. The plaintiff and his henchmen by violating the interim order illegally trespassed into the schedule property and constructed illegal structure, during the pendency of the suit. According to defendants, the alleged Hakku Pathra of Yellamma Madamma is created for the purpose of the case and on the strength of the same a gift deed was created by the plaintiffs to grab the property of defendant No.1.
According to defendants, the defendant No.2 is in no way concerned to the schedule property and the plaintiff intentionally made false allegation 14 OS No.26810/2012 C/w OS No.7032/2016 against the defendant No.2 and therefore the suit of the plaintiff is hit by misjoinder and nonjoinder of necessary and proper parties. It is also contended by the defendants that, the suit is barred by limitation and the court fee paid by the plaintiffs is insufficient. Therefore the defendants sought for dismissal of the suit with costs.
11. Based on the pleadings of the parties, my learned predecessor has framed the following issues:-
1. Whether the plaintiff is the absolute owner of the suit schedule property?
2. Whether the plaintiff was in possession of the suit schedule property as on the date of suit?
3. Whether the alleged interference is true?
4. Whether the registered sale deed dtd.22.05.2003 bearing document No.3403/2003-2004 is not binding on the plaintiff?
5. What order?15 OS No.26810/2012 C/w
OS No.7032/2016
12. Earlier the GPA Holder of the Plaintiff in OS No.26810/2012 got examined as PW1 and got marked 58 documents as Ex.P1 to Ex.P58. Later the Plaintiff himself got examined as PW2 and got marked Ex.P59 to Ex.P63 and closed his side.
13. The plaintiff in OS No.7032/2016 got himself examined as PW1 and got marked 40 documents as Ex.P1 to Ex.P40. The plaintiff also examined one witness as PW2 and closed his side.
14. At that stage, the learned counsel for both the parties filed memo to club both the suits since the parties in both the suits are same and the subject matter of both the suits is one and the same. Accordingly the above two suits have been clubbed together. The parties have adopted their respective evidence in both the cases.
15. Heard the counsel for Plaintiff. The counsel for the plaintiff in the connected suit filed written arguments. Perused the evidence and documents on records.
16 OS No.26810/2012 C/wOS No.7032/2016
16. Now on appreciation of the evidence and documents on record in both the suits, my answers to the issues in OS No.26810/2012 are as under:
Issue No.1: In the Affirmative;
Issue No.2: In the Affirmative;
Issue No.3: In the Affirmative;
Addl.Issue No.1: In the Affirmative; Addl.Issue No.2: In the Affirmative; Addl.Issue No.3: In the Affirmative; Addl.Issue No.4: Does not survive for consideration;
Issue No.4: As per final order for the following
17. Similarly my answers to the issues in the connected suit OS No.7032/2016 are as follows:-
Issue No.1: In the Negative;
Issue No.2: In the Negative;
Issue No.3: In the Negative;
Issue No.4: As per final order for the following :R E A S O N S:
18. Issue No.1 in OS No.26810/2012 and Issue No.1 and 4 in OS No.7032/2016:
Since the above issues are inter related and finding on one issue is having bearing on the other, 17 OS No.26810/2012 C/w OS No.7032/2016 inorder to avoid repetition of facts, the above issues have been taken up together for consideration.
The definite case of the Plaintiff in OS No.26810/2012 is that, he is the absolute owner in possession and enjoyment of the Suit Schedule Property having purchased the same under the Registered Sale Deed dtd.22.05.2003. Now according to Plaintiff, there is interference by the Defendants and indeed during the pendency of the suit, according to Plaintiff, the Defendants have illegally trespassed into the Suit Schedule Property and erected shed over the same. Therefore the Plaintiff sought direction to defendants to demolish the illegal structure said to have been erected by the Defendants.
19. Whereas the plaintiff in the connected suit is tracing his title to the suit schedule property on the strength of the gift deed said to have been executed by one Madamma @ Yellamma Madamma, the mother of the plaintiff dtd.07.04.2016. Since there is similarities in the names of the original grantee, this court has to decide as to who is the actual grantee of 18 OS No.26810/2012 C/w OS No.7032/2016 the suit schedule property. The plaintiffs in both the suits are claiming right over the very same suit schedule property granted by the Government. Therefore the court has to find out the original grantee on the basis of the documents produced by both the parties.
20. It is settled principle of law that, civil cases have to be decided on the basis of preponderance of probabilities. In the case on hand, the court has to decide as to whose case is more probable when compared to the other.
21. The arguments of the Learned Counsel for the Plaintiff is on the aforesaid lines. The Plaintiff in his examination in chief virtually reiterated plaint averments as to his acquisition of the Suit Schedule Property under the Registered Sale Deed dtd.22.05.2003, subsequent transfer of Khatha in his name and his possession and enjoyment of the Suit Schedule Property etc. He relied on 63 documents. Ex.P1 is the General Power of Attorney executed by Plaintiff infavour of PW1. Ex.P2 is the original 19 OS No.26810/2012 C/w OS No.7032/2016 Registered Sale Deed dtd.22.05.2003 executed by Smt. Madamma D/o Ramaiah, situated at Gunjur Village, Varthur Hobli, Bengaluru East Taluk inrespect of Suit Schedule Property for a valuable consideration. Ex.P3 is the katha endorsement, which is standing in the name of the Plaintiff inrespect of the Suit Schedule Property. Ex.P4 to Ex.P8 are the Tax paid receipts, Ex.P9 is the Khatha certificate, Ex.P10 is the Khata extract, Ex.P11 is the Hakku Patra said to have been issued by the Tahsildar, Bangalore South Taluk in the name of Madamma D/o Ramaiah dtd.15.01.1973, Ex.P12 is the Tax demand register extract inrespect of the Suit Schedule Property which is standing in the name of Madamma, Ex.P13 to 16 are the Tax paid receipts which are standing in the name of Madamma, Ex.P17 is the complaint lodged by the Plaintiff against the Defendants and others alleging interference by the defendants with the jurisdictional police dtd.20.07.2017, Ex.P18 is the police report, Ex.P19 is the Assessment list of buildings, Ex.P20 is the complaint filed by the Plaintiff to BBMP dtd.02.03.2015, Ex.P21 is the receipt, Ex.P22 is the 20 OS No.26810/2012 C/w OS No.7032/2016 Katha certificate, Ex.P23 is the Khata extract standing in the name of Plaintiff, Ex.P24 to 30 are the Tax paid receipts, Ex.P31 is the application under RTI, Ex.P32 is an application by Defendant No.2- Manju for regularization of Site No.98, Ex.P33 is an application submitted by one Manju. V (defendant No.2) for regularization of Site No.98, Ex.P34 is report by Revenue Inspector, Ex.P35 is the report by Village Accountant, Ramagondanahalli Village, Ex.P36 to Ex.P38 are the police records, pursuant to complaint by the plaintiff, Ex.P39 to Ex.P57 are the photographs, Ex.P45 and Ex.P58 are the CD's inrespect of the photographs, Ex.P59 is the voters list, Ex.P60 is the Yellamma's identity card, Ex.P61 is the certified copy of Gift Deed executed by one Smt. Madamma W/o Venkatesh infavour of her son- V Manju (defendant No.2), Ex.P62 is the Hakku Patra in the name of Madamma W/o Venkatesh and Ex.P63 is the endorsement issued by the BBMP.
22. On the strength of the above documents, the Plaintiff contended that, the Suit Schedule Property was granted by the Government of Karnataka in the 21 OS No.26810/2012 C/w OS No.7032/2016 name of Smt. Madamma D/o Ramaiah in the year 1973 and he purchased the property in the year 2003 for a valuable consideration and from the date of purchase he has been in possession and enjoyment of the Suit Schedule Property.
23. The PW1 who is GPA holder of the Plaintiff also deposed to the above effect and he also cross examined in brief by the Learned Counsel for the Defendant Nos.2 and 3. Indeed the Plaintiff had filed an application to discard the evidence of PW1. However this court vide order dtd.27.08.2019 rejected the IA No.1/2019 and observed that the neither evidence of PW1 can be discarded nor Ex.P1- Power of Attorney can be returned back to the Plaintiff till the disposal of the suit. Since PW1 was already cross examined in part, this court declined to discard the evidence of PW1. Therefore the evidence of PW1 in the cross examination is also material.
24. In the cross examination, the PW1 admitted that, Defendant No.2 has already filed suit in Os No.7032/2016 on the file of CCH-27 against the witness and the Plaintiff for the relief of declaration 22 OS No.26810/2012 C/w OS No.7032/2016 and injunction inrespect of the very same Suit Schedule Property. Admittedly the witness is contesting the said suit. There is one line suggestion at the end of the cross examination that there is no basis for Ex.P11 and he has no authority to represent the Plaintiff and give evidence in the case. Later the plaintiff himself got examined as PW2 and reiterated the plaint averments. He relied on Ex.P59 to Ex.P63 which are referred to already above.
25. PW2 was cross examined at length by the learned counsel for the defendant Nos.2 and 4. Even in the cross examination the PW2 stated that, he purchased the property from Madamma D/o Ramaiah of Gunjuru and at that time he was also residing at Gunjuru, on the basis of Hakku Pathra issued infavour of Smt. Madamma. In the further cross examination also the witness has stated that as per Ex.P11 Hakku Patra Smt. Madamma D/o Ramaiah acquired the suit schedule property and on its verification he purchased the property in the year 2003. The suggestions that, the witness created the Ex.P11 in collusion with the ill-wishers of the 23 OS No.26810/2012 C/w OS No.7032/2016 defendants has been denied by PW2. Of-course the witness admitted the construction of 2 to 4 shops by the defendant No.2. It is also admitted by the witness that the defendants are collecting rents from the shops.
26. It is the specific grievance of the plaintiffs that, in violation of order of status-quo the defendants had put up construction during the pendency of the suit and therefore the plaintiffs got amended the plaint and sought for possession of the suit schedule property with a direction to defendants to demolish the illegal structures over the suit schedule property. The remaining cross examination are only repetition of earlier cross examination. The PW2 admitted that, it is the defendant No.2 who is collecting rents from the four shops and residing in the residential house.
27. Coming to the evidence of defendants, the defendant No.2 in his examination in chief naturally traced his title on the strength of the gift deed said to have been executed by his mother Smt. Madamma @ Yellamma Madamma W/o Late Venkatesh. According to defendant No.2 the suit schedule property was 24 OS No.26810/2012 C/w OS No.7032/2016 allotted to his mother by the Government of Karnataka in the year 1972. He relied on 40 documents. Ex.P1 is the alleged gift deed dtd.07.04.2016 executed by Smt. Madamma W/o Late Venkatesh infavour of the defendant No.2 herein bequeathing the suit schedule property infavour of defendant No.2. Ex.P2 to 6 are some of the rental agreements entered into between the tenants and the defendant No.2 and Smt. Madamma Yellamma W/o Venkatesh. As stated above the PW1 admitted that the tenants are in occupation of shops and the defendant No.2 is collecting rents.
28. The disputed document is Ex.P7 the Hakku Patra said to have been issued by the Tahsildar Bengaluru South Taluk in the year 1972 infavour of Madamma W/o Venkatesh. Ex.P8 the tax demand register extract is in the name of Smt. Madamma, Ex.P9 is the certified copy of assessment list of buildings and land which indicate that after deleting the name of Madamma the name of plaintiff in OS No.26810/2012 is entered in the records inrespect of the suit schedule property, Ex.P10 is service 25 OS No.26810/2012 C/w OS No.7032/2016 certificate issued by Bescom on 27.02.2017 in the name Smt. Yellamma, Ex.P11 is the election identity card of Yellamma Madamma W/o Venkatesh, Ex.P12 is Aadhar card of Yellamma Madamma W/o Venkateshappa, which is downloaded on 25.05.2019 and generated date is 14.02.2016, Ex.P13 is the gas connection receipt which is in the name of Madamma Yellamma which is of the year 2014, Ex.P14 is the ration card and the name of the mother of the defendant No.2 is mentioned as Yellamma Venkatesh and it could be seen from the said document that the defendant No.2 is collecting ration only from the month of April 2014, Ex.P15 is the gas cylinder passbook which is issued in the month of March 2014 in the name of Madamma Yellamma.
29. Ex.P16 is an application filed by one Chandra the brother of the defendant No.2 seeking regularization of unauthorized occupation of buildings measuring 10 X 20 in Site No.161. Ex.P17 is the RTC inrespect of Sy No.96, totally measuring 6 Acres 24 Guntas which is Gomala Land. The Column No.11 indicate that, the Gomala has been converted 26 OS No.26810/2012 C/w OS No.7032/2016 to residential sites. Ex.P18 is the Mahazar prepared by the Revenue Inspector stating that there is no problem to regularize the construction erected by one Chandra in an extention of 10 X 18 feet. Ex.P19 is the Village Accountant report. Ex.P20 is the report of the Revenue Inspector pursuant to application by the Chandra S/o Venkatesh, Ex.P21 is the order of Deputy Commissioner permitting regularization of unauthorized construction of Chandra S/o Venkatesh, Ex.P22 is the letter of Assistant Commissioner to Deputy Commissioner, Ex.P23 is the report of Revenue Inspector, Ex.P24 is the letter from Tahasildar East Taluk to the Assistant Commissioner stating that since the said site was already allotted by issuing Hakku Patra, the application of the Chandra may be rejected. Similar is the letter of Assistant Commissioner dtd.25.05.2005. Ex.P26 is the order of DC dtd.06.01.2006 rejecting the claim of Chandra S/o Venkatesh to regularize his unauthorized construction on the ground that, since he was given Hakku Patra under Ashraya Scheme, his application was rejected.
27 OS No.26810/2012 C/wOS No.7032/2016
30. Ex.P27 is the certified copy of sale deed of the plaintiff in OS No.26810/2012, Ex.P28 and Ex.P29 are the order sheet and plaint in OS No.26810/2012 which are not in dispute, Ex.P30 to Ex.P37 are the photographs, Ex.P39 is studio bill and Ex.P40 is the CD.
31. On the basis of the aforesaid documents, the defendants are claiming right over the suit schedule property. As aforesaid there is similarity in the names of the allottee and therefore both plaintiff and the defendant No.2 are staking claim over the suit schedule property. Therefore at this stage itself it is necessary to refer the cross examination of PW1 in OS No.7032/2016 (since the above matters are clubbed at the instance of counsel for both the parties, after the evidence of respective plaintiffs in the respective suits, the documents are marked only as 'P' series and the witnesses are referred to as PW's). In the cross examination the witnesses stated that, his father name is Venkatesh and mother name is Madamma @ Yellamma. The burden was on the defendant No.2 to establish that, Yellamma and 28 OS No.26810/2012 C/w OS No.7032/2016 Madamma are one and the same. Admittedly the mother of the defendant No.2 is alive. The burden was heavy on the defendant No.2 to prove that the after the allotment of suit schedule site infavour of his mother, she got the katha transferred in her name and she was paying tax from 1972 till date and she was in possession of the suit schedule property. Though the witness has stated that, his mother name is Madamma @ Yellamma, admittedly in the alleged gift deed dtd.07.04.2016 said to have been executed by his mother, her name is mentioned as only Madamma and not Madamma @ Yellamma. Except Ex.P7 the alleged Hakku Patra, no other documents are produced by the defendant No.2 to establish that after the alleged issuance of Hakku Patra, his mother was in possession and enjoyment of the suit schedule property by changing katha in her name. Except some identity cards of his mother, no Panchayat records are produced by the defendant No.2 to substantiate continuous possession of his mother over the suit schedule property, since 1972. Therefore in the cross examination, it is suggested to the witness that, all the identity cards have been 29 OS No.26810/2012 C/w OS No.7032/2016 fabricated only to execute the gift deed infavour of the witness. Though the said suggestion is denied by the witness, admittedly no other Panchayat records are produced by the witness to establish that Madamma and Yellamma are one and the same. When it was suggested to the witness that, there are no documents to show that prior to 2015 his mother name was mentioned as Madamma Yellamma, the witness though denied the said suggestion not chosen to produce any other material to establish that his mother name was Madamma Yellamma prior to 2015.
32. The witness categorically admitted that, in Ex.P9 the assessment list of buildings and land, the name of the plaintiff G. C Venkatesh is reflected by deleting the name of Madamma. The said document is produced by the witness himself, which indicate that the name of original grantee Smt. Madamma has been deleted and the name of plaintiff is entered in the Panchayat records.
30 OS No.26810/2012 C/wOS No.7032/2016
33. Though the witness has stated that, on the basis of Ex.P7 Hakku Patra, the name of his mother was mutated, absolutely no material is produced before the court. Infact the witness pleaded ignorance regarding production of katha of his mother before the court. The witness categorically admitted that, his mother name is mentioned as Yellamma Madamma in the ration card and in his gift deed it is only mentioned as Madamma. Admittedly the name Yellamma is not reflected in Ex.P7 and similarly in Ex.P10 his mother name is mentioned as Yellamma and not as Madamma. Therefore it is suggested to witness that, the alleged Hakku Patra is created by the witness for the purpose of the case.
34. It is significant to note that, in the further cross examination the witness admitted that, one Chandra his brother had applied for regularization of construction measuring 10 X 20 feet and admittedly in the said application which is available at Ex.P16, the mode of acquisition byway of Hakku Patra by his mother is not reflected. It is also admitted fact that, the Deputy Commissioner rejected the application of 31 OS No.26810/2012 C/w OS No.7032/2016 his brother on the ground that, the said property was already allotted by issuing Hakku Patra. Therefore it is suggested to witness that, since the said site was already allotted to Smt. Madamma D/o Ramaiah of Gunjuru, the application of his brother was rejected by the Deputy Commissioner. Ex.P26 clearly indicate that since the applicant Chandra was already issued with a Hakku Patra under the Ashraya Scheme, and his application was rejected by the Deputy Commissioner in the month of January 2006. It is not the case of the defendants that, the suit schedule property was allotted infavour of his mother under the Ashraya Scheme. As per Ex.P7 the Hakku Patra was issued in commemoration of 25th year of Independence. Therefore it appears that the Deputy Commissioner appears to have rejected the claim of his brother.
35. Admittedly the order of the Deputy Commissioner has reached its finality, since the defendants not chosen to challenge the order of the Deputy Commissioner. The further cross examination is regarding filing of OS No.26810/2012 and passing 32 OS No.26810/2012 C/w OS No.7032/2016 of interim order by this court etc., The said fact is not in dispute. The suggestion that, the defendants in violation of the interm order illegally constructed temporary structure over the property has been denied by the witness. According to witness the building is in existence since 1994.
36. At this itself it is necessary to refer the photographs produced by the plaintiff at Ex.P46 to Ex.P57 which indicate that as on the date of filing of the suit, the suit schedule property is a vacant site and one can seen from the naked eye that, during the pendency of the suit temporary structures have been erected using hallow cement blocks. Absolutely there is no cross examination of PW1 on these photographs produced by the plaintiff. Therefore prima facie it appears that during the pendency of the suit, the defendants appears to have erected temporary sheds over the suit schedule property. Admittedly at that stage, the plaintiff had lodged complaint against the defendants with the jurisdictional police and a charge sheet is already filed against the defendants in CC No.55790/2021 and the said fact is admitted by the 33 OS No.26810/2012 C/w OS No.7032/2016 defendant No.2 in his cross examination. The documents at Ex.P34 to Ex.P38 support the same. The remaining cross examination of this witness is only stock suggestions which have been denied by the defendant No.2, who was examined as PW1 in OS No.7032/2016.
37. The defendants also examined one independent witness as PW2 and in his affidavit filed in lieu of oral evidence, he tried to support the case of the defendants, as to their possession over the suit schedule property. In the cross examination the witness pleaded ignorance of several facts. The witness states that he knew little about the origin of the schedule property and he has not verified any documents pertaining to the suit schedule property. The witness admittedly not given any instruction to his counsel to prepare his affidavit filed in lieu of oral evidence. The witness categorically admitted that, he signed the affidavit got prepared by the plaintiff and his counsel near the court. Admittedly the witness has not seen the alleged gift deed on the basis of which the defendant No.2 is claiming right over the 34 OS No.26810/2012 C/w OS No.7032/2016 suit schedule property. The witness in unambiguous terms admitted that at the instance of the plaintiff he was deposing before the court, though he was not aware of the details of the suit schedule property.
38. The evidence of this witness is not at all helpful to the case of the defendants. Admittedly he was deposing as a mouth piece of defendant No.2 without knowing the facts of the case.
39. The Plaintiff is tracing title to the Suit Schedule Property on the basis of Hakku Patra said to have been issued by the Government of Karnataka in the year 1973 in the name of Smt. Madamma D/o Ramaiah. Ex.P11 is the original Hakku Patra under which Site No.161, measuring 30 X 40 feet was allotted by the Government of Karnataka, situated at Munekolalu Village, Bengaluru South Taluk. Other panchayath records at Ex.P12 to Ex.P19 indicate that the Suit Schedule Property was standing in the name of Smt. Madamma and she was paying taxes to the said property. Later as per Ex.P2, the Plaintiff purchased the Suit Schedule Property for a valuable 35 OS No.26810/2012 C/w OS No.7032/2016 consideration under the Registered Sale Deed. Thereafter he got the Khata transferred in his name which is evident from the Ex.P3 to Ex.P10 and Ex.P22 to Ex.P32. Of-course police complaints have been lodged by the Plaintiff against the Defendants in the year 2018 for the alleged damage caused by the Defendants, inspite of interim order granted by this court etc. However the documents referred to above, which came into existence at an undisputed point of time, clearly establish that the Suit Schedule Property was granted by the Government of Karnataka in the name of Smt. Mudamma D/o Ramaiah. Later the Plaintiff purchased the same under the Registered Sale Deed in the year 2003 and he has been in possession and enjoyment of the Suit Schedule Property.
40. On the other hand, the defendants are tracing title to the property on the strength of gift deed of the year 2016 said to have been executed by the mother of the defendant No.2. Infact the defendant No.4 is the mother of the defendant No.2. Admittedly the defendant No.4 is alive and for the 36 OS No.26810/2012 C/w OS No.7032/2016 reasons best known to the defendant No.2, he has not chosen to examine his mother before the court. Even the defendants not chosen to examine his brother Chandra in support of his case. The evidence of the mother of the defendant No.2 was very material to establish as to whether her name is Madamma or Yelamma or Madamma @ Yellamma or Yellamma @ Madamma. There is no consistency in the name of the mother of the defendant No.2 in any of the documents placed on record. On the other hand, the documents produced by the plaintiff clearly indicate that, the suit schedule property was allotted to Madamma D/o Ramaiah and she sold the property under the registered sale deed in the year 2003 itself infavour of the plaintiff. Whereas the alleged gift deed of the defendant No.2 is in the year 2016. Therefore the evidence of mother of the defendant No.2 was very material to establish the valid execution of the gift deed. Had the defendant No.2 examined his mother before the court, an opportunity would have been available to the plaintiff to cross examine the mother of the defendant No.2 to elicit the truth. As stated supra, except the Hakku Patra, no 37 OS No.26810/2012 C/w OS No.7032/2016 other material is produced by the defendant No.2 from 1972 till execution of gift deed in the year 2016 to establish their continuous possession over the suit schedule property by getting the katha transferred in the names of defendants. Therefore the defendants have with hold the best evidence before the court. Hence adverse inference requires to be drawn against the defendants.
41. As pointed out earlier, the civil cases are to be decided on the preponderance of probabilities. In the case on hand, the documents produced by the plaintiff are from the year 2003 onwards and the plaintiff produced several Panchayat records to establish his title and legal ownership over the suit schedule property. On the contrary, the defendants are tracing their title only on the strength of the gift deed which came into existence only in the year 2016. Under the above circumstances, the case of the plaintiff is more probable rather than the case of defendants. Hence, Issue No.1 in OS No.26810/2012 is answered in the Affirmative 38 OS No.26810/2012 C/w OS No.7032/2016 and Issue No.1 and 4 in OS No.7032/2016 are answered in the Negative.
42. Issue No.2 in OS No.26810/2012:-
Initially the plaintiff contended that, the defendants who are the strangers to the suit schedule property, in the month of July 2012 illegally made attempt and trespassed upon the suit schedule property, and the plaintiff was compelled to lodge complaint with the jurisdictional police etc. Subsequently during the pendency of the suit, the plaintiff got amended the plaint and incorporated couple of paragraphs at 7(a) and (b), wherein the plaintiff contended that, during the pendency of the suit, in violation of the interim order of status-quo, the defendants had constructed illegal structure in the suit schedule property and let out the illegal construction to tenants and collecting rents from the tenants.
43. While considering the other issues this court has already observed that, it is the plaintiff who is absolute owner of the suit schedule property and not the defendants. It is observed by this court that, the 39 OS No.26810/2012 C/w OS No.7032/2016 case of the plaintiff is more probable when compared to the case of the defendants. The plaintiff is claiming right over the property on the strength of the registered sale deed of the year 2003 and whereas the defendant No.2 claiming right on the basis of the gift deed of the year 2016, which came into existence during the pendency of the above suit. Therefore the said transaction is hit by lis pendency. The very defence taken by the defendants in their written statement is suffice to infer the interference by the defendants with the possession of the suit schedule property by the plaintiff. Infact admittedly the defendants have erected temporary structure over the suit schedule property during the pendency of the suit, though there was an order of status-quo. Therefore the plaintiff has been able to establish that the defendants are interfering with his possession and enjoyment of the suit schedule property. Accordingly, Issue No.2 is answered in the Affirmative.
40 OS No.26810/2012 C/wOS No.7032/2016
44. Issue No.3 and Addl. Issue Nos.1 to 3 in OS No.26810/2012 & Issue Nos.2 and 3 in OS No.7032/2016:-
Since the findings on the one issue is having bearing on the other issues, inorder to avoid repetition of facts, the above issues are taken up together for consideration.
The grievance of the Plaintiff is that, the Defendants who have no manner of right, title or interest over the Suit Schedule Property illegally trespassed over the suit schedule property and in violation of interim order passed by this court, the defendants had put up temporary structures over the suit schedule property and therefore the plaintiff sought direction to the defendants to demolish the illegal structures and to hand over the vacant possession of the suit schedule property to the plaintiff.
45. Whereas the defendants contended that, they are in possession of the suit schedule property since 1992 and the building is existing since 1992 41 OS No.26810/2012 C/w OS No.7032/2016 and they never violated any order passed by this court.
46. Therefore this court once again has to refer the photographs produced by the plaintiff at an earliest point of time. Ex.P39 to Ex.P44 are the photographs produced by the plaintiff at the inception of the above suit in the year 2012. the photographs indicate that the suit schedule property is covered with barbed wire fencing. Absolutely there is no cross examination of PW1 on these photographs. Subsequent photographs produced by the plaintiff at Ex.P46 to Ex.P57 indicate the erection of the temporary structures over the suit schedule property by the defendants. Therefore prima facie it appears that the defendants have erected the structure on the suit schedule property during the pendency of this suit. Inorder to establish the existence of structure since 1994 and the possession of the defendants over the suit schedule property, absolutely no material is produced by the defendants. All the documents placed on record are of the year 2014 onwards. That is subsequent to filing of the above suit only.
42 OS No.26810/2012 C/wOS No.7032/2016 Therefore it appears prima facie that, the defendants in violation of the order of status-quo erected temporary sheds over the suit schedule property by using cement blocks. While considering Issue No.1 it is already observed that the plaintiff is the absolute owner of the suit schedule property and as such he is entitled for possession of the suit schedule property. The defendants are to be directed to demolish the illegal structure and hand over the vacant possession of the suit schedule property to the plaintiff. Hence, Issue No.3 and Addl. Issue Nos.1 to 3 in OS No.26810/2012 are answered in the Affirmative & Issue Nos.2 and 3 in OS No.7032/2016 are answered in the Negative.
47. Addl. Issue No.4 in OS No.26810/2012:-
The above issue was tried as preliminary issue and was answered in the Affirmative vide order dtd.08.12.2021, since the plaintiff in the mean time made good the deficit court fee of Rs.2,02,125/- on 07.01.2019. Therefore the above issue does not survive for consideration.43 OS No.26810/2012 C/w
OS No.7032/2016
48. Issue No.4 in OS No.26810/2012 and Issue No.5 in OS No.7032/2016:-
The plaintiff has been able to establish that he is the absolute owner of the suit schedule property having acquired the same under the registered sale deed in the year 2003 and got transferred the katha in his name, after purchase of the property, by producing cogent and convincing evidence before this court. On the other hand, the defendants failed to establish that the suit schedule property was allotted to Smt. Madamma Yellamma W/o Venkatesh and she was in possession and enjoyment of the property, by producing sufficient evidence before this court. As stated supra, the evidence and documents on record produced by the plaintiff is more probable when compared to the evidence and documents produced by the defendants. The material witnesses have not been examined by the defendants. Though the alleged grantee who is the mother of the defendant No.2 is alive, the defendants not chosen to examine his mother before the court. Hence, the suit of the plaintiff in OS No.26810/2012 deserves to be decreed and the suit of the plaintiff in OS 44 OS No.26810/2012 C/w OS No.7032/2016 No.7032/2016 deserves to be dismissed. Accordingly, I proceed to pass the following:
ORDER The suit of the Plaintiff in OS No.26810/2012 is hereby decreed, as prayed for, with costs.
It is hereby declared that the Plaintiff is the absolute owner in lawful possession and enjoyment of the Suit Schedule Property bearing Site No.161, measuring East to West 30 feet and North to South 40 feet in all total measuring 1200 sq.ft situated at Aswathnagar, Munekolal Village, Varthur Hobli, Bangalore East Taluk, Bangalore now comes under the limits of BBMP having Khatha No.673/211/161/158.
The defendants are hereby directed to demolish the illegal structures erected on the suit schedule property and deliver the vacant possession of the suit schedule property to the plaintiff within three months from the date of the above judgment.
The defendants are permanently restrained from the interfering with the peaceful possession and 45 OS No.26810/2012 C/w OS No.7032/2016 enjoyment of the Suit Schedule Property by the Plaintiff.
The suit of the plaintiff in OS No.7032/2016 is hereby dismissed, with costs.
Draw decree accordingly.
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(Dictation given to the Stenographer, typed by her, corrected and then pronounced by me, in the open court on this the 10th day of January, 2023.) [P. G Cheluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) SCHEDULE PROPERTY (OS N.26810/2012) All that piece and parcel of the Site bearing No.161, measuring East to West 30 feet and North to South 40 feet in all total measuring 1200 sq.ft situated at Aswathnagar, Munekolal Village, Varthur Hobli, Bangalore East Taluk, Bangalore now comes under the limits of BBMP having Khatha No.673/211/161/158 and bounded on:
East: Site No.162;
West: Road;
North: Road;
South: Road.46 OS No.26810/2012 C/w
OS No.7032/2016 SCHEDULE PROPERTY (OS N.7032/2016) All that piece and parcel of residential house property No.161, present BBMP Katha No. 673/211/161/158 measuring East to West 30 feet and North to South 40 feet, totally measuring 1200 sq.ft consisting 4 commercial shops and asbestor sheet roofed residential house situated at Aswathnagar, Munekolal Village, Varthur Hobli, Bangalore East Taluk, Bangalore and bounded on:
East: Site No.162;
West: Road;
North: Road;
South: Road.
[P. G Cheluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 47 OS No.26810/2012 C/w OS No.7032/2016 ANNEXURES:-
(in OS No.26810/2012) LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF: PW.1: Sri. G. A Manohar.
PW.2: Sri. G. C Venkatesh.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF: Ex.P1: Original Power of Attorney holder. Ex.P2: Original Registered Sale Deed. Ex.P3: Khatha endorsement. Ex.P4: Receipt.
Ex.P5 & 6: Assessment receipts for the years 2008-09, 2009- 10 & 2010-11.
Ex.P7: Receipt.
Ex.P8: Receipt.
Ex.P9: Certificate issued by the BBMP dtd.16.11.2010. Ex.P10: Extract from the assessment register. Ex.P11: Original Hakku Patra.
Ex.P12: Extract from the assessment Register. Ex.P13 & 14: Two receipts.
Ex.P15: Self assessment challan.
Ex.P16: Assessment extract.
Ex.P17: Complaint dtd.20.07.2012. Ex.P18: Endorsement in Form No.76A. Ex.P19: Extract from the assessment list. Ex.P20: Letter dtd.02.03.2015.
Ex.P21: Receipt.
Ex.P22: Certificate issued by BBMP dtd.18.03.2015. Ex.P23: Property Extract.
Ex.P24 to Ex.P30: 7 property receipts. Ex.P31 to 35: Application made under ITI Act and other documents.
Ex.P36 & 37: Copies of FIR in HAL Crime No.67/2018 and HAL PS Crime 46/2018.
Ex.P38: Copy of complaint dtd.08.02.2018. Ex.P39 to 45: 6 positive photographs and CD. Ex.P46 to 58: 12 positive photographs and CD. Ex.P59: Certified copy of voters list of the year 1989.
48 OS No.26810/2012 C/wOS No.7032/2016 Ex.P60: Identity card.
Ex.P61: Certified copy of the Registered Gift Deed dtd.07.04.2016.
Ex.P62: True copy of Hakku Patra.
Ex.P63: Endorsement issued by the Assistant Revenue Officer dtd.15.06.2017.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS/ PLAINTIFF IN OS NO.7032/2016:-
PW1: Sri. Manju.
PW2: N. Somashekar.
PW3: Manjunath.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS/ PLAINTIFF IN OS NO.7032/2016:-:
Ex.P1: Original gift deed dtd.07.04.2016. Ex.P2: Original rent agreement dtd.27.03.2014. Ex.P3: Original rent agreement dtd.06.11.2014. Ex.P4: Original rent agreement. Ex.P5: Original rent agreement dtd.24.05.2014. Ex.P6: Original rent agreement dtd.15.09.2014. Ex.P7: Original Hakku Pathra. Ex.P8: Certified copy of demand register extract. Ex.P9: Assessment register extract. Ex.P11: Service certificate. Ex.P12: Aadhar card.
Ex.P13: Gas Voucher, Ex.P14: Ration card.
Ex.P15: Gas book.
Ex.P16: Form No.1.
Ex.P17. RTC.
Ex.P18: Mahazar.
Ex.P19: Village accountant report. Ex.P20: RI report.
Ex.P21: Certified copy of recommendation dtd.13.12.2002 by Tahasildar.49 OS No.26810/2012 C/w
OS No.7032/2016 Ex.P22: Certified copy of recommendation dtd.26.05.2003 by Asst. Commissioner.
Ex.P23: Requisition.
Ex.P24: Tahasildar report. Ex.P25: AC report.
Ex.P26: Rejection order dtd.06.01.2006. Ex.P27: Certified copy of sale deed dtd.22.05.2003. Ex.P28: Certified copy of order sheet in OS NO.26810/2012. Ex.P29: Certified copy of plaint in OS NO.26810/2012. Ex.P30 to 38: 9 photographs. Ex.P39: Bill.
Ex.P40: CD.
[P. G Cheluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)