Bangalore District Court
Sri.Krishnappa S/O Late Rangadasappa vs The Commissioner on 22 November, 2019
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S.No.15040/2003
C/w
O.S. No.10115/2005
Dated this 22nd day of November 2019
Plaintiffs 1. Sri.Krishnappa S/o Late Rangadasappa,
[In OS No. Aged about 63 years,
15040/2003]
R/at No.28, 2nd Cross Road,
Valmikinagar, Chamarajpete,
Mysore Road, Bangalore-560018.
V/s. (by Sri S. Shiva Prasad, Advocate)
Defendants 1. The Commissioner,
[In OS No. Bangalore Mahanagara Pallike,
15040/2003]
Bangalore.
2. The Deputy Commissioner,
Jayanagar West, Bangalore
Mahanagara Pallike, Bangalore.
3. Smt. Rahamath Khatoon
W/o Yousaf Khan,Aged about 45 years,
R/at No.23/1, 1st Main Road, 4th Cross,
Valmikinagar, Bangalore-18.
(By Smt. N.T.- Advocate for Defendant Nos.1 and 2)
(By S.S. Padmaraj-Advocate for Defendant No.3)
2
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
Plaintiff Smt. Rahamath Khatoon,
[In OS No. W/o Yousaf Khan,
10115/2005]
Aged about 45 years,
R/at No.23/1,
1st Main Road, 4th Cross,
Valmikinagar, Bangalore-18.
V/s. (By SAS-Advocate)
Defendant Sri.Krishnappa S/o Late Rangadasappa,
[In OS No. Aged about 63 years,
10115/2005]
R/at No.28, 2nd Cross Road,
Valmikinagar, Chamarajpete,
Mysore Road, Bangalore-560018.
(Rep by Sri S. Shiva Prasad, Advocate)
O.S.No. O.S.No.
15040/2003 10115/2005
Date of Institution of the suit 09/01/2003 16/12/2005
Nature of the (Suit or pro-note, suit for Declaration Declaration &
declaration and possession, suit for & Permanent delivery of
injunction, etc.) Injunction possession
Date of the commencement of
recording of the Evidence.
16/11/2010 30/09/2013
Date on which the Judgment
22/11/2019
was pronounced
Year Month Days
O.S. No.15040/2003 16 10 13
O.S.No. 10115/2005 13 11 06
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
.
3
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
:C O M M O N J U D G M E N T:
The plaintiff in OS No.15040/2003 Krishnappa filed
suit against the defendant Nos.1 to 3 for declaration and
permanent injunction.
The plaintiff in OS No.10115/2005 Rahamath
Khatoon filed suit against the defendant for relief of
declaration, possession and damages.
The plaintiff Krishnappa in OS No.15040/2003 is the
defendant in OS No.10115/2005 and defendant No.3 of OS
No.15040/2003 Rahamath Khatoon is the plaintiff in OS
No.10115/2005. The parties in both suits and the facts are
similar in nature. Therefore both the suits are clubbed for
common Judgment.
2. The Brief facts of plaint averments of O.S.
No.15040/2003 is as under :-
4
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
The plaintiff Krishnappa submits that he is the
absolute owner of the suit schedule property mentioned
below:-
SCHEDULE
Premises being Old No.235, New
No.28, situated at 2nd Cross Road,
Valmikinagar, Mysore Road, Bangalore-
18. Measuring East to West 30 feet, North
to South 60 feet Bounded on the East by
Private property West by Private property
North by 2nd Cross Road South by 3rd
Cross Road.
The plaintiff further submits that he has acquired suit
schedule property from his ancestors, since date of
acquisition he is in absolute possession and enjoyment of
the suit schedule property. He has approached to the
Corporation Authority for registration of Katha accordingly,
the Corporation Authorities have registered the Khatha in
favour of holder instead of plaintiff's name, since the entire
5
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
area comes under the Government. He has paid taxes in
respect of the suit schedule property from the date of
acquisition till today. The schedule property is free from all
encumbrances. The Corporation Authorities have issued
endorsement stating that the Old No.235 and New No.28 are
one and the same of the suit schedule property. He is in
absolute possession and enjoyment of the suit schedule
property, ever since from 1952 till today and the voter list
and the Ration Card clearly show that he is in absolute
possession and enjoyment of the suit schedule property.
Such being the case the defendant No.3 is the stranger and
fabricated some documents and colluded with the 1 st and 2nd
defendant are trying to take the possession of the suit
schedule property from him even though the defendant No.2
have no manner of right, title and interest over the suit
schedule property. On 04/01/2003 the defendant and their
officers and Engineers along with defendant No.3 came
6
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
near the suit schedule property and trying to demolish the
suit schedule premises without any valid reasons and at the
intervention of the well wishers and elders they went away
stating that they will demolish and take the suit schedule
property at any time. The defendant Nos.1 and 2 have not
given any statutory notice for demolishing the suit schedule
property. Hence, he approached the jurisdiction police to
take necessary action against the defendant, but inspite of
that defendants are trying to demolish the suit schedule
property. Hence he constrained to file the suit for
permanent injunction. The plaintiff prays for decree of
permanent injunction restraining the defendants or their
officers, agents, servants or any one acting on behalf of
them for demolishing and interfering in respect of the suit
schedule property. The plaintiff thereafter got the plaint
amended seeking the relief of declaration and prays to
declare him as absolute owner in possession and enjoyment
7
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
of the suit schedule property to the extent of 40 x 30 feet out
of 30 x 60 feet as described in the suit schedule property.
The plaintiff prays to award the costs of the suit.
3. The defendant No.1 and 2 in O.S.No.15040/2003
though appeared through their counsel on 13/02/2003, but
not filed written statement.
4. The defendant No.3 Smt. Rahamath Khatoon in
O.S.No.15040/2003 filed her written statement denying the
averments made by the plaintiff in para 2 and further
contended that the schedule property mentioned in the plaint
is totally incorrect as the property bearing old No.235,
situated at Valmikinagar, Mysore Road, Bangalore 560 018
does not measure 30 Ft. East to West 60 Ft. North to South
but it measures East to west 30 feet, North to south 40 feet.
The property No.235 was never given number 28. On
02/02/2000 she [defendant No.3] has purchased portion of
8
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
property bearing Old No.235, measuring East to West 30
feet and North to South 20 feet from Sri Sathyanarayana, Sri
Munirathna, Sri B.S. Raja Shekar, residents of No.94/15, 1 st
Main, 2nd cross, Valmikinagar, Mysore Road, Bangalore 560
026 and the boundary of the property are East by passage
and then private property, West by private property, North
by Corporation Road and South by remaining portion of the
same property and the property purchased by her is
numbered as 27/1 and the same is assessed by Municipal
Corporation Authorities and measurements of the property
done by Survey Department. The defendant No.3 submits
that she has filed police complaint after the plaintiff
trespassed into her property and the same is pending in
C.C.No.15474/2003 on the file of I Addl. CMM, Bangalore.
She has also filed suit for declaration and possession and for
damages against the plaintiff in respect to her property
bearing No.27/1, which is portion of the property bearing
9
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
old No.235 in OS No.10115/2005 which is pending on the
file of Addl. City Civil Judge (CCH-27), Bangalore. The
plaintiff has earlier filed the suit for permanent injunction
and hereafter sought declaration of title. She [defendant
No.3] was illegally dispossessed by the plaintiff. The
plaintiff has not disputed her title at the time of filing of the
suit. The defendant No.3 contends that old No.235 and New
No.28 do not refer to the property in question. She is the
lawful and absolute owner of the property No.27/1, being
portion of old No.235, 2nd Cross Road, Valmikinagar,
Bangalore 560 018. The defendant No.3 denied the
averments made in para 6 of the plaint and submits that the
plaintiff has not made out any case against her [defendant
No.3]. There is no cause of action necessitating the filing of
the present suit against her.. No cause of action or
infringement of the rights of the plaintiff by her [defendant
No.3] is disclosed or pleaded. The suit in O.S.No.
10
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
15040/2003 filed by the plaintiff is not maintainable under
law since defendant No.3 has filed O.S.No. 10115/2005
seeking appropriate relief against the plaintiff and the same
is adjudicated by the competent court. The valuation of the
suit schedule property is not in accordance with law and the
court fee paid is insufficient. The defendant No.3 prays to
dismiss the suit with costs.
5. The Brief facts of plaint averments of OS
No.10115/2005 is as under:-
The plaintiff Smt. Rahmath Khatoon submits that she
is the absolute owner of the suit schedule property as he
purchased suit schedule property under registered deed of
sale from Sri Sathyanarayana and others on 02/02/2000.
SCHEDULE PROPERTY [OS 10115/2005]
All that piece and parcel of land being a
vacant site bearing No.27/1, measuring
North to South 20 feet and East to West
11
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
30 feet and it is situated at 2nd Cross,
Valmiki Nagar, Ward No.45, Bangalore
and bounded on the East by passage and
vacant land, west by property of 3rd party,
North by road, South by Passage and
portion in defendant's occupation.
The plaintiff submits that she is in possession of the suit
schedule property from the date of purchase and Khatha
issued by the BMP and she is paying taxes and the Survey
Department has conducted survey and furnished
endorsement showing measurement of the suit schedule
property. The defendant [Sri. Krishnappa] is in the Southern
hind portion of the suit schedule property has illegally
trespassed and occupied the suit schedule property and he is
not allowing her to put up any structure on her property.
She has lodged complaint against defendants which is
registered in C.C.No.15474/2003 for an offences U/S 447,
420 and 506(B) R/w. Sec. 34 of IPC and the same is pending
12
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
trial before I Addl. CMM Court, Bangalore. The defendant
has also filed suit for bare injunction against the plaintiff
and others in O.S.No.15040/2003, which is pending. The
defendant has no right, title or interest over the schedule
property of the plaintiff and has been in unlawful possession
and the same is continuing. Hence the plaintiff has filed this
suit for declaration and possession of the suit schedule
property and also damages for illegal occupation at
Rs.1,000/- per month from 20/03/2003. The cause of action
for the suit arose on 02/02/2000 and subsequently on
20/03/2003 when the defendant and his henchmen illegally
trespassed into the suit schedule property and remained in
unlawful possession of the same. The plaintiff prays to pass
judgment and decree in her favour and against defendant
declaring that the plaintiff is the absolute owner of the suit
schedule property and the defendants have no right, title or
interest over the same, direct the defendant to quit and
13
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
deliver vacant possession of the suit schedule property to the
plaintiff, direct the defendant to pay a sum of Rs.32,000/-
towards damages for the illegal use and occupation of the
suit schedule property from 20/03/2003 onwards till the date
of filing the suit and award future damages at Rs.1,000/- per
month from the date of filing the suit till the date of actual
delivery of possession of the suit schedule property by the
defendant to the plaintiff.
6. The defendant Sri Krishnappa in O.S.No.
10115/2005 filed written statement submitting that suit of
the plaintiff is not maintainable in law and facts and hence
the same is liable to be dismissed in limine. He denied
plaint averments at para 3 that plaintiff is owner of the suit
schedule property. The alleged vendor of the plaintiff
Sri. Sathyanarayana has no manner of right, title and interest
over the suit schedule property for executing the sale deed in
favour of the plaintiff, since he is not at all owner of the
14
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
property. The alleged sale deed of the plaintiff is concocted
and other documents produced by the plaintiff are all forged
in collusion with revenue officials. The defendant admits
averments in para 4 of the plaint that defendant is the owner
of southern side of the suit schedule property including the
suit schedule property. But he denied that he has illegally
trespassed the schedule property and not allowing the
plaintiff for putting up structure on the schedule property.
Since the plaintiff is not owner of the suit schedule property
the question of putting up structure on the schedule property
does not arise. The plaintiff has filed false case against the
defendant to knock off the schedule property from the
defendant. Since the defendant is owner of the property for
the last several years and hence the suit of the plaintiff is not
maintainable and the same is liable to be dismissed. He
denied averments made in para 5 of the plaint that he is in
unlawful possession of the suit schedule property. He also
15
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
denied that he is liable to pay damages of Rs.1,000/- per
month, since he is the absolute owner of the schedule
property and he is in possession of the property. There is no
cause of action for the suit and court fee paid by the plaintiff
is not sufficient. The defendant further submits that he is the
absolute owner of the schedule property bearing premises
No.28, situated at 2nd cross Road, Valmikinagar, Bangalore
26. The defendant has acquired the property from his
ancestors. Since date of acquisition he is in absolute
possession and enjoyment of the suit schedule property. He
has approached to the Corporation Authority for registration
of Katha accordingly, the Corporation Authorities have
registered the Khatha in favour of holder instead of
defendant's name, since the entire area comes under the
Government. He has paid taxes in respect of the suit
schedule property from the date of acquisition till today.
The defendant further submits that the schedule property is
16
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
free from all encumbrances. The Corporation Authorities
have issued endorsement stating that the Old No.235 and
New No.28 are one and the same of the property. The
defendant submits that he is in absolute possession and
enjoyment of the suit schedule property, ever since from
1952 till today and the voter list and the Ration Card clearly
show that the defendant is in absolute possession and
enjoyment of the suit schedule property. Such being the
case the plaintiff who is the stranger and fabricated some
documents trying to take the possession of the suit schedule
property from the hands of the defendant, even though the
plaintiff has no manner of right, title and interest over the
suit schedule property. Hence the defendant has filed suit
for injunction and declaration against the plaintiff and the
said suit pending consideration. The plaintiff has suppressed
the real facts and filed the suit without any valid reasons and
the plaintiff is not at all owner and in possession of the
17
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
schedule property at any point of time and the documents
produced by him are all concocted documents and hence the
suit of the plaintiff is liable to be dismissed. The defendant
is not liable to pay any damages to the plaintiff as claimed.
Hence the defendant prays to dismiss the suit of the plaintiff
with exemplary costs.
7. On the basis of the above pleadings following
Issues are framed:-
:ISSUES:
(OS No.15040/2003)
(1) Whether plaintiff proves that he is the
absolute owner in possession of the suit
schedule property?
(2) Whether the plaintiff proves that
interference by the defendants with his
possession of the suit schedule property?
(3) Whether there is no cause of action for
the suit?
(4) Whether the plaintiff is entitled for the
declaration sought for/
18
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
(5) Whether the plaintiff is entitled for the
relief of permanent injunction as sought
for?
(6) What decree or order?
:ISSUES:
(OS No.10115/2005)
(1) Whether the plaintiff proves that he is
the absolute owner of the suit schedule
property?
(2) Whether the plaintiff proves that he is
entitled to possession of suit schedule
property?
(3) Whether the plaintiff is entitled for
damages?
(4) Whether the plaintiff is entitled for the
declaration and reliefs sought for?
(5) What order or decree?
8. In view of memo filed by the counsel for plaintiff in
O.S.No.15040/2003 the suit in O.S.No.10115/2005 is
clubbed with O.S.No.15040/2003 on 28/06/2010. The
plaintiff in O.S.No.15040/2003 Sri Krishnappa got
examined himself as PW.1 and also examined his neighbour
19
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
Smt. Girijamma as PW.3 in support of his case and marked
documents ExP1 to ExP27 [The affidavit evidence of
plaintiff Sri M. Krishnappa, as PW.2 is discarded as per
orders dated 29/01/2013]. On the other hand the defendant
No.3 in O.S.No.15040/2003 got examined her husband and
General Power of Attorney Holder Sri Yousuff Khan as
DW1 and got marked documents ExD1 to ExD12.
9. The plaintiff and defendant side in both the suits
argued and they have also filed their respective written
arguments. Perused the records.
10. My finding on the above issues are:-
O.S.No.15040/2003
Issue No.1) In Negative
Issue No.2) In Negative
Issue No.3) In Negative
Issue No.4) In Negative
Issue No.5) In Negative
20
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
Issue No.6) See final orders for following:
O.S.No.10115/2005
Issue No.1) In Affirmative
Issue No.2) In Affirmative
Issue No.3) In Affirmative
Issue No.4) In Affirmative
Issue No.5) See final orders for following:
:REASONS:
11. Issue No.1 to 5 in O.S.No.15040/2003 and Issue
No.1 to 4 in O.S.No.10115/2005:-
The plaintiff in O.S.No.15040/2003 Sri Krishnappa
has filed his affidavit evidence by way of examination in
chief, wherein he has deposed that he is the defendant in
O.S.No.10115/2005. He has filed the suit for declaration
and injunction against defendants in respect of the suit
schedule property bearing premises No.28, situated at 2 nd
Cross Road, Valmikinagar, Bangalore-18. He has acquired
21
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
the same from his ancestors and he is in possession and
enjoyment of the same. He has approached Corporation
Authority for registration of Khatha and accordingly the
Corporation Authority have registered Khatha in his favour
as holder instead of his name, since the entire area comes
under the Government. He is paying taxes in respect of the
suit schedule property. The suit schedule property is free
from all encumbrances. The Corporation authorities hae
issued endorsement stating that the old number 235 and
New No.28 are one and the same in respect of suit schedule
property. He is in possession and enjoyment of the suit
schedule property ever since from 1952 till today. The 3 rd
defendant is a stranger and fabricated some documents
colluded with the 1st and 2nd defendant and trying to take
possession of the suit schedule property from his hands even
though the defendant has no manner of right, title and
interest over the suit schedule property. On 04/01/2003 the
22
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
defendant and their officers and engineers along with 3 rd
defendant came near the suit schedule property and trying to
demolish the suit schedule property. Defendants 1 and 2
have not given statutory notice for demolishing the suit
schedule property. He has approached jurisdictional police
but they informed him to approach the court. After filing of
the suit in O.S.No. 15040/2003 the defendant No.2 filed suit
in O.S.No. 10115/2005 making false allegations against him
and also produced concocted and created documents. The
3rd defendant is not owner of the suit schedule property and
hence putting up structure on the suit schedule property does
not arise. The 3rd defendant who is the plaintiff in O.S.No.
10115/2005 has suppressed the real facts and filed the suit
without any valid reasons and plaintiff [3 rd defendant] is not
at all owner in possession of the suit schedule property at
any point of time. He is not liable to pay any damages to 3 rd
defendant as claimed by him in O.S.No. 101115/2005 since
23
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
he is the absolute owner in possession of the suit schedule
property. PW1 prays to pass judgment and decree as prayed
in O.S.No. 15040/2003 and dismiss the suit in O.S.No.
10115/2005 with exemplary costs. In support of his claim
PW1 has got marked documents ExP1 to ExP27.
12. The plaintiff in O.S.No.15040/2003 also examined
his neighbour Smt. Girijamma as PW3 in support of his
case, wherein she has deposed that the plaintiff
Sri Krishnappa is her neighbour and he is the owner of the
suit schedule property. Till today the family members of Sri
Krishnappa are residing in the suit schedule property since
from the last several years. She further deposed that
defendant No.3 Smt. Rahamath Khatoon is not in possession
of the suit schedule property and she is trying to dispossess
the plaintiff.
24
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
13. The burden is on the plaintiff [in O.S.No.
15040/2003] to prove that he is the absolute owner of the
suit schedule property bearing Old No.235, New No.28,
situated at 2nd Cross Road, Valmikinagar, Mysore Road,
Bangalore-18, Measuring East to West 30 feet, North to
South 60 feet and he obtained the same from his ancestors
and he has approached to the Corporation Authority for
registration of Katha in his name and accordingly, the
Corporation Authorities have registered the Khatha in
favour of holder instead of plaintiff's name and he has paid
up to date tax of the suit schedule property and he is in
possession and enjoyment of the suit schedule property
since 1952 till today and the voter list and the Ration Card
clearly show that he is in absolute possession and enjoyment
of the suit schedule property and the defendant No.3 is a
stranger and fabricated some documents and colluded with
the 1st and 2nd defendant are trying to take the possession of
25
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
the suit schedule property from him even though the
defendant No.2 have no manner of right, title and interest
over the suit schedule property. That after filing of the suit
by him, defendant No.3 has filed suit in O.S.No.
10115/2005 without any valid grounds suppressing the
material facts and the said defendant No.2 is not at all in
possession of the suit schedule property at any point of time.
The plaintiff in O.S.No. 15040/2003 Sri Krishnappa in
support of his oral evidence marked several documents at
ExP1 to ExP27.
14. The ExP1 is original sale deed dated 17/12/1952
executed by by one Sri Krishnappa, aged 14 years, minor
represented by Smt. Puttamma in favour of Munigangappa
S/o. Muniyappa in respect of property bearing Municipal
No.235, Rajiv Nagar, Bangalore City, The ExP2 is
assessment register extract in respect of property bearing
New No.28, 2nd cross, Valmikinagar measuring 20' x30' in
26
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
which name of Sri Krishnappa [plaintiff in O.S.No.
15040/2003] is shown as owner of the property, The ExP3 is
tax paid receipt in the name of the plaintiff [O.S.No.
15040/2003] in respect of property No.28, 2 nd cross,
Valmikinagar, dated 03/12/2005. The ExP4 is tax paid
receipt in respect of property No.28, 2 nd cross, Valmikinagar
in the name of Sri Krishnappa dated 02/12/2009. The ExP5
is tax paid receipt in the name of R. Krishnappa in respect of
property No.28, 2nd cross, Valmikinagar, Azad Nagar. The
ExP6 is tax paid receipt in the name of R. Krishnappa in
respect of property No.28, 2nd cross, Valmikinagar, Azad
Nagar. The ExP7 is rough sketch of suit schedule property,
The ExP8 is Death Certificate of Puttamma, The ExP9 and
ExP10 are voters list, the ExP11 is the Khatha endorsement,
ExP12 is tax paid receipt, the ExP13 is Khatha certificate,
ExP14 is Khatha exracts in respect of property No.28, 2 nd
cross, Valmikinagar, Azad Nagar, The ExP15 is
27
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
encumbrance certificate for the period from 01/04/1943 to
31/03/1957 in respect of property No.235, Doddapalya,
ExP16 is the encumbrance certificate for the period
01/04/1952 to 28/02/1959 in respect of property No.235
measuring 30 x 20. The ExP17 is encumbrance certificate
for the period 31/03/1958 to 31/03/2005 in respect of
property No.235, Valmikinagar, Bangalore, The ExP18 is
the encumbrance certificate for the period from 01*/04/2008
to 31/03/2009 in respect of property No.235, New
Municipal O.28, 2nd cross, Valmikinagar, Bangalore
measuring 30 x 20 ft. ExP19 to ExP22 are photographs
and negatives are at ExP19(a) to ExP22(a). The ExP23 is
Khatha extract issued by Bangalore Mahanagarapalike for
the period 01/04/1996 to 10/07/2000 in respect of property
No.28, 2nd cross Valmikinagar wherein name of the owner is
shown as 'Holder', ExP24 is two tax paid receipts dated
11/01/2000 and 12/01/2000 in respect of property No.28, 2 nd
28
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
cross road, Valmikinagar wherein name of owner is shown
as 'Holder', ExP25 is nil encumbrance certificate for the
period from 01/04/1980 to 25/09/1996 in respect of property
N.235 presently called No.28, 2nd cross road, Valmikinagar,
Mysore Road, Bangalore, ExP26 is the endorsement issued
by Asst Revenue Officer, Ex.P27 is the copy of voters list.
15. On the contrary the defendant No.3 in O.S.No.
15040/2003 and plaintiff in O.S.No. 10115/2005 contends
that the plaintiff Sri Krishnappa in O.S.No. 15040/2003 has
filed the suit against her and other defendants for mandatory
injunction. Thereafter the plaintiff amended the plaint for
the relief of declaration and permanent injunction in respect
of the suit schedule property mentioned in O.S.No.
15040/2003. She has filed O.S.No. 10115/2005 for
declaration and possession of the plaint schedule property
being a vacant site bearing No.27/1, measuring North to
South 20 feet and East to West 30 feet and it is situated at 2 nd
29
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
Cross, Valmiki Nagar, Ward No.45, Bangalore having
purchased the same under registered sale deed from Sri
Sathyanarayana and others on 02/02/2000 and since then she
has become absolute owner of the suit schedule property
and Khatha of the suit schedule property standing in her
name. The Survey Department has conducted survey and
furnished endorsement showing measurement of the suit
schedule property. The plaintiff in O.S.No.15040/2003 Sri.
Krishnappa who is defendant in O.S.No.10115/2005 is in
the Southern hind portion of the suit schedule property has
illegally trespassed and occupied the suit schedule property
and he is not allowing her to put up any structure on her
property. She has lodged complaint against the defendant
Sri Krishnappa, which is registered in C.C.No. 15474/2003
for offences u/s. 447, 420 and 506(B) R/w. Sec. 34 of IPC
and the same is pending for trial before I Addl. CMM Court,
Bangalore. After amendment of plaint in O.S.No.
30
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
15040/2003 the plaintiff Sri Krishnappa, sought declaration
of title and and prior to that the suit in O.S.No.15040/2003
was confined only to grant of permanent injunction. The
contention of defendant No.3 in O.S.No.15040/2003
[plaintiff in O.S.No.10115/2005] is that the suit schedule
property bearing No.28 is not given Khatha No.235.
Whereas the contention of the plaintiff in 15040/2003 is that
the Corporation Authorities have issued endorsement stating
that the Old No.235 and New No.28 are one and the same of
the suit schedule property and to that effect the Corporation
has issued endorsement.
16. Smt. Rahamath Khatoon, defendant No.3 in
O.S.No. 15040/2003 got examined her husband and General
Power of Attorney holder Sri Housuff Khan S/o. Late Abdul
Khuddus Khan, as DW1 and in the affidavit evidence by
way of examination in chief, he has deposed that Sri
Krisnappa [plaintiff in O.S.No. 15040/2003] had initially
31
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
filed a suit for mandatory injunction against the defendant
No.1 to 3 in O.S.No. 15040/2003 in respect of the schedule
property. Thereafter the plaintiff amended the plaint and
sought for relief of declaration and permanent injunction in
respect of the schedule property in O.S.No.15040/2003,
which included the property of his wife Smt. Rahamath
Khatoon. His wife Smt. Rahamath Khatoon has filed
O.S.No.10115/2005 for declaration and possession of
schedule property bearing No.27/1 (old No.235), 2 nd cross,
Valmiki Nagar, Ward No.45, Bangalore, measuring East to
West 30 feet and North to South 20 Feet and bounded by
East by Passage and vacant land, West by property of third
party, North by Road and South by passage and remaining
portion of same property, against Krishnappa who is the
plaintiff in O.S.No.15040/2003 and defendant in the suit
filed by his wife Smt. Rahamath Khatoon in
O.S.No.10115/2005. He has further deposed that his wife
32
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
Smt. Rahamath Khatoon had filed Misc Petition No.98/2008
before the Principal City Civil and Sessions Judge,
Bangalore for transfer of both the cases to one court for
common trial. In view of orders dated 21/03/2009
O.S.No.10115/2005 pending on the file of Addl. City Civil
Judge (CCH 27) Bangalore, transferred to this court to have
common trial along with O.S.No.15040/2003 pending on
the file of this court. He further deposed that his wife Smt.
Rahamath Khatoon is the absolute owner of all the part and
parcel of vacant site bearing No.27/1, 2nd cross, Valmiki
Nagar, Ward No.45, Bangalore, measuring Eat to West 30
feet and North to South 20 feet and bounded by east by
passage and vacant land, west by property of third party,
North by Road and south by passage and remaining portion
of the same property, having bought the same under a
registered sale deed executed in her favour by
Sri Sathyanarayana and others on 02/02/2000. Ever since
33
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
the date of purchase his wife Smt. Rahamath Khatoon was
in lawful possession and enjoyment of the same. The
Bruhat Bengaluru Mahanagara Palike has issued Khatha and
his wife is paying taxes. He further deposed that Sri
Krishnappa [plaintiff in O.S.No.15040/2003], who is in
southern hind portion of the suit schedule property has
illegally trespassed and has illegally occupied the suit
schedule property and has not been allowing her to put up
any structure on her property. Therefore he was compelled
to take criminal action against Krishnappa [plaintiff in
O.S.No.15040/2003] and others and case has been lodged in
C.C.No.15474/2003 for offences u/s. 447, 420, 506(B) R/w.
Sec. 34 of IPC. The plaintiff has got amended the plaint in
O.S.No. 15040/2003 and sought for declaration of title and
no relief was claimed against his wife. His wife Smt.
Rahamath Khatoon had filed O.S.No.10115/2005 seeking
appropriate relief agianst Sri Krishnappa [plaintiff in
34
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
O.S.No.15040/2003]. The measurement and identity of the
property as mentioned in the schedule and prayer for
declaration by Sri Krishnappa [plaintiff in
O.S.No.15040/2003]are totally contrary and ambiguous.
Hence the suit of Krishnappa is liable to be dismissed. He
further deposed that Sri Krishnappa [plaintiff in
O.S.No.15040/2003] has absolutely no right, title or interest
over the suit schedule property mentioned in
O.S.No.10115/2005 and he is in unlawful possession and the
same is continuing wrong. Hence, the plaintiff in O.S.No.
10115/2005 has filed the suit for declaration and possession
of the suit schedule property in O.S.No. 10115/2005 and
also for damages for illegal occupation at Rs.1,000/- per
month, from 20/03/2003 onwards, till the date of actual
delivery of possession of the suit schedule property. DW1
prays for dismissal of O.S.No. 15040/2003 filed by Sri
Krishnappa plaintiff in O.S.No. 15040/2003 against his
35
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
[DW1] wife Smt. Rahamath Khatoon and other defendants
with costs and also pass decree in her favour and against
Krishnapa declaring that Smt. Rahamath Khatoon is the
absolute owner of the suit schedule property in
O.S.No.10115/2005 and that Krishnappa [plaintiff in
O.S.No.15040/2003] has no right, title or interest over the
same; direct Krishnappa [plaintiff in O.S.No.15040/2003] to
quit and deliver vacant possession of the suit schedule
property in O.S.No. 10115/2005 to Smt. Rahamath Khatoon
direct Sri Krishnapppa liable to pay a sum of Rs.32,000/-
towards damages for the illegal use and occupation of the
suit schedule property in O.S.No.10115/2005 from
20/03/2003 onwards till the date of filing the suit and award
future damages at Rs.1,000/- per month from the date of
filing the suit till the date of actual delivery of possession of
the suit schedule property in O.S.No.10115/2005 by
36
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
Krishnappa to Smt. Rahamath Khatoon. In support of his
contention DW1 has got marked documents ExD1 to D12.
17. The ExD1 is General Power of Attorney executed
by plaintiff in O.S.No.10115/2005 in favour of her husband
to represent her in the proceedings of the suit. The ExD2 is
the original sale deed dated 02/02/2000 executed by Sri M.
Sathyanarayana, Sri B.S.Munirathna and Sri B.S.
Rajashekar in favour of Smt. Rahamath Khatoon [plaintiff
in O.S.No.10115/2005]. The ExD3 is the certificate issued
by Bangalore Mahanagara Palike in the name of Smt.
Rahamath Khatoon, in respect of property No.27/1,
Valmikinagar, 2nd cross road. The ExD4 is tax paid receipt
dated 28/5/2005. The ExD5 is the copy of property register
card issued by the office of Land Records in which name of
Smt. Rahamath Khatoon W/o. Sri Yousuf Khan is shown as
holding 30 x 20 Ft. property under sale deed. The ExD6(1)
is the encumbrance certificate in respect of property No.235
37
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
at Doddapalya, for the period from 01/04/1943 to
31/03/1957. The ExD6(2) is encumbrance certificate in
respect of property No.27/1, measuring 30 x 20 Ft. The
ExD7(1) to ExD7(10) are tax paid receipts in respect of
property bearing No.27/1, 2nd cross, Valmikinagar for the
period from 2000-2001 to 2012-2013 in the name of Smt.
Rahamath Khatoon. The ExD8 is Uttara Pathra issued by
Bangalore Mahanagara Palike in respect of property
No.27/1, Valmikinagar, 2nd cross, in respect of transfer of
Khatha in the name of Rahamath Khatoon [plaintiff in
O.S.No. 10115/2005. The ExD9 is notice of change of
Rights issued by the office of Asst. Director of Land
Records wherein name of Smt. Rahamath Khatoon is shown
as holder of property in Valmikinagar, CTS No.672
measuring 30' x 20' Ft. The ExD10 is certificate issued by
the office of Asst. Director of Land Records in respect of
CTS.No. 672 of Valmikinagar, Bangalore wherein name of
38
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
one Sri Munigangappa is shown as holder of property. The
ExD11 is provisional order passed u/s. 321(1) of KMC act
by the Jagajeevanram Nagar Sub Division of Bangalore
Mahanagara Palike and the same addressed to
Smt. Rahamath Khatoon, No.27/1, 2 nd cross, Valmikinagar.
The ExD12 is notice u/s. 321(2) of KMC Act issued to
Smt. Rahamat Khatoon, that she has constructed building
unauthorizedly.
18. That as per ExP1 original registered sale deed dated
17/12/1952 executed by Munigangappa S/o. Muniyappa in
favour of Sri Krishnappa, aged 14 years, minor represented
by Smt. Puttamma, discloses that the property bearing
Municipal No.235, Rajiv Nagar, Bangalore City, measuring
East to West 40 Ft. and North to south 20 Ft. has been sold
in favour of Sri Krishnappa. The said document is
registered as document No.3381 in volume No.1242, page
57-59 on 17/12/1952. ExP2 is the assessment register
39
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
extract for the year 2005-2006 in respect of property bearing
New No.28, 2nd cross, Valmikinagar measuring 20' x30' in
the name of Sri Krishnappa [plaintiff in O.S.No.
15040/2003] shown as holder of the property to the extent of
300 Sq. Ft. AC sheet shed. But, the plaintiff Sri Krishnappa
in O.S.No. 15040/2003 in his plaint has mentioned schedule
property as premises being Old No.235, New No.28,
situated at 2nd Cross Road, Valmikinagar, Mysore Road,
Bangalore-18. Measuring East to West 30 feet, North to
South 60 feet, wherein he has claimed declaration of the
suit schedule property to the extent of 40 x 30 feet out of 30
x 60 feet, as owner in possession of the said extent of
property.
19. But, the plaintiff has not produced any specific
documents to show that the premises bearing Old No.235,
New No.28, situated at 2nd Cross Road, Valmikinagar,
Mysore Road, Bangalore-18. Measuring East to West 30
40
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
feet, North to South 60 feet. The property shown in ExP1
original registered sale deed under which only municipal
number is shown as property No. 235 situated at Rajiv
Nagar, Bangalore City. But, the property shown in ExP2
bearing No.28 is situated at Valmikinagar, 2 nd cross,
Bangalore. Hence, both ExP1 and P2 are not connected to
each other. The plaintiff has not produced any documents
to show that the property mentioned in Ex.P1 and Ex.P2 are
one and the same properties.
20. Further the plaintiff Sri Krishnappa in his plaint in
O.S.No.15040/2003 contended that the Corporation
Authorities have issued endorsement stating that the Old
No.235 and New No.28 are one and the same of the suit
schedule property. But, to prove the said fact, the plaintiff
has not produced the said documents issued by the
Corporation Authority. Further in ExP3 and ExP4 tax paid
receipts, wherein the property number is mentioned as
41
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
No.28, 2nd cross, Valmikinagar and in tax paid receipts at
ExP5 and ExP6 the prpoerty number is mentioned as No.28,
2nd cross, Valmikinagar, Azad Nagar. ExP8 is the death
certificate of Puttamma and the ExP9 is voters list, wherein
the name of Puttamma, Krishnappa, Venkatamma, are
mentioned as residing in 1st cross, Valmikinagar and house
number is mentioned as 28. ExP10 is also the voter list
wherein the name of Krishnappa,Venkatamma,
Rangaswamy, Gowrama, Sadashivaiah, Chandramma,
Narayana, are mentioned as residing in 2 nd cross,
Valmikinagar and house number is mentioned as No.28.
ExP11 is the Uttara Pathra issued by B.B.M.P. Bangalore, as
per which on the basis of application of R. Krishnappa
property No.28, situated at 2nd cross, Valmikinagar, ward
No.45, Jagajivanaram Nagar, Bangalore, transferred in the
name of Sri R. Krishnappa, wherein also there is no
reference about old Khatha No.235. ExP13 and ExP14 are
42
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
Khatha certificate and Khatha extracts, respectively issued
to the plaintiff R. Krishnappa relating to the property
bearing No.28, wherein the old number is kept blank. If at
all old number of property bearing No.28 is 235, the same
ought to have mentioned in the Khatha certificate in the
column old number. But the same is kept blank and new
number is mentioned.
21. The plaintiff in O.S.No.15040/2003 Sri Krishnappa
has got marked ExP15 encumbrance certificate for the
period from 01/04/1943 to 31/03/1957 in respect of property
No.235, Doddapalya, as per which there is an endorsement
that Smt. Puttamma, Ramaiah has sold property bearing
No.235, measuring 30 x 40 ft. to Sri Munigangappa on
13/10/1945 under registered sale deed and thereafter on
17/12/1952 Sri Munigangappa sold property bearing
NO.235 measuring 30 x 20 Ft. to Sri Krishnappa, minor
guardian represented by Smt. Puttamma on 17/12/1952.
43
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
The ExP16 is encumbrance certificate for the period
01/04/1952 to 28/02/1959 in respect of property No.235
measuring 30 x 20. In respect of purchase of property by
the plaintiff Sri Krishnappa he has marked ExP1 registered
sale deed and also encumbrance certificates ExP15 and
ExP16 as discussed above. But there is no specific
document to show that the property bearing new No.28 had
old number 235.
22. On the contrary the contention of the defendant
No.3 of O.S.No.15040/2003 and plaintiff in
O.S.No.10115/2005 is that the plaintiff Sri Krishnappa has
illegally trespassed in to her property vacant site bearing
No.27/1, measuring North to South 20 feet and East to West
30 feet and it is situated at 2 nd Cross, Valmiki Nagar, Ward
No.45, Bangalore and he is not allowing her to put up
construction.
44
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
23. Sri Yousuff Khan, GPA holder of the defendant
No.3 [Smt. Rahamath Khatoon] is examined as DW1, who
got marked documents ExD1 to ExD12. ExD2 is the
Original sale deed dated 02/02/2000 executed by Sri M.
Sathyanarayana, Sri B.S.Munirathna and Sri B.S.
Rajashekar in favour of Smt. Rahamath Khatoon [plaintiff
in O.S.No. 101152005] in respect of property bearing
No.27/1, situated at 2nd Cross Road, Valmiki Nagar, Ward
No.45, Bangalore, measuring East to West 30 feet and
North to South 20 feet. ExD3 is the Certificate dated
19/03/2002 issued by Asst. Revenue Officer, Bangalore
Mahanagara Palike stating that the property No.27/1,
Valmikinagar, 2nd Cross Road, is standing in the name of
Smt. Rahamath Khatoon. ExD4 is the tax paid receipt of the
said property. ExD5 is the property register card issued by
the office of Land Records, which discloses regarding
transfer of suit schedule property in the name of
45
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
Smt. Rahamath Khatoon W/o. Sri Yousuf Khan as holding
30 x 20 Ft. property under sale deed and there is also an
entry in ExD5 that original owner of property
Munigangappa died leaving behind his sons G. Muniyappa,
B. M. Shatrugna, M. Shantharaju. The said (1) Muniyappa
has a son Sri Sathyanaranaya, the said (2) Sri Shatrugna has
a son B.S. Munirathnam and the said (3) Sri M. Shantharaju
has a son Sri B.S. Rajashekar. The Lrs of the said Sri
Munigangappa, as mentioned above, have sold property
measuring 30 Ft. x 20 Ft. in CTS No.672 of Valmikinagar,
in favour of Smt. Rahamath Khatoon W/o. Sri Yousuf Khan.
Therefore, the plaintiff in O.S.No.10115/2005 Smt.
Rahamath Khatoon has purchased the property measuring
30 Ft x 20 Ft in CTSNo. 672. Further, in ExD6(2) there is
entry about sale of 30 Ft. x 20 Ft. area by the said Sri M.
Sathyanrayana, Sri. S. Munirathna and Sri B.S. Rajashekar
in favour of Rahamath Khatoon on 03/02/2000, wherein at
46
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
the top of ExD6(2) there is mention of old No.235, present
No.27/1, 2nd cross, Valmikinagar, Bangalore, measuring 30 x
20. In ExD6(2) in column No.9 the said entry is made as
per the reference of registration No.4682/1999-2000 in
respect of the sale transaction.
24. Further, in ExD9 in column No.5 there is reference
regarding CTS 672 standing in the name of Sri
Munigangappa and he died on 06/02/1964 leaving behind
his sons (1) Muniyappa (2) Shatrugna (3) M. Shantharaju
and they are also died leaving behind their children (1) M.
Sathyanarayana (2) B.S. Munirathnam (3) B.S. Rajashekar
and they have sold an area to the extent of 30' x 20' in CTS
No. 672 under S.R.No.4682/99-2000 dated 02/02/2002 in
faovur of the defendant herein Smt. Rahamath Khatoon wife
of Yousuf Khan. Therefore, ExD9 notice issued by the
ADLR Office, Bangalore u/s. 90 of Karnataka Land
Revenue Act, for filing objections by any one in relation to
47
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
mutation of the property mentioned in the name of said
Rahamath Khatoon, wife of Yousuff Khan. Hence in SR
4682/99-2000 the property shown in ExD6(2) bearing old
No.235 new No.27/1, 2nd cross, Valmikinagar, Bangalore
measuring 30 x 20. Further, as per ExD11 notice issued by
the Asst. Executive Engineer, Jagajeevanram Nagar Sub-
Division, Bangalore, addressed to Smt. Rahamath Khatoon,
u/s. 321(1) of KMC Act, he has stated the owner of the
building has put up unauthorised construction at No.27/1,
2nd cross, Valmikinagar, Ward 45 and he has directed her to
remove the unauthorized construction.
25. Further, ExD7, nine tax paid receipts are marked
and those are tax paid receipts of prperty No.27/1, 2 nd cross,
Valmikinagar, Bangalore, in the name of defendant No.3
Smt. Rahamath Khatoon. Further, ExD8 is the Uttara Pathra
issued by the Revenue Officer, Bangalore Mahanagara
Palike informing that the khatha of property No.27/1,
48
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
situated in 2nd Cross Road, Valmikinagar, Ward No.45,
Jagajivanram Nagar Division is transferred in the name of
Smt. Rahamath Khatoon in the revenue records. Therefore
these documents at ExD1 to ExD12 disclose that defendant
No.3 of O.S.No.15040/2003 and plaintiff of
O.S.No.10115/2005 is the exclusive owner in possession
and enjoyment of the suit schedule property mentioned in
O.S.No.10115/2005 to the extent of 20 Ft. x 30 Ft.
26. To the contrary, as discussed above, the plaintiff Sri
Krishnappa in O.S.No.15040/2003 and defendant in
O.S.No.10115/2005 failed to show that the property shown
at ExP1 original sale deed dated 17/12/1952 bearing
Municipal No.235, Rajiv Nagar, Bangalore City is the same
property bearing Old No.235 situated at 2nd Cross Road,
Valmikinagar, Mysore Road, Bangalore-18. Measuring East
to West 30 feet, North to South 60 feet and the same is
assigned with new No.28.
49
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
27. Further, in this suit, the Court Commissioner was
appointed as per the orders on application filed by the
defendant under Order 26 Rule 9 by the defendant
appointing the ADLR for spot inspection and to submit the
report. The said orders was passed on 21/11/2015.
Thereafter the said orders was challenged by the plaintiff Sri
Krishnappa before Hon'ble High Court of Karnataka in
W.P.No.274/2016 and the plaintiff counsel produced copy of
the orders dated 6/8/2018 dismissing the writ petition filed
by the plaintiff holding that it is not a fit case to warrant
interference under the supervisory jurisdiction of the court
under article 227 of the Constitution of India. Thereafter,
the Court Commissioner submitted the report.
28. The plaintiff in O.S.No.15040/2003 Sri Krishnappa
filed objections to the Court Commissioner Report
submitting that the Court Commissioner has not acted as per
the instructions from the counsel for the plaintiff and hence
50
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
the said report is one sided. The spot mahazar conducted by
the Court Commissioner in the absence of the plaintiff and
his counsel. He has not received any notice from the Court
Commissioner. The witnesses signed the mahazar are
supporting the defendant and the plaintiff has no knowledge
about the mahazar of the Court Commissioner. The sketch
submitted by the Court Commissioner is one sided and
cannot be taken into consideration. The measurement taken
by the Court Commissioner is not as per the records of the
plaintiff and hence the measurements of the Court
Commissioner report cannot be considered. The Court
Commissioner has not verified the records of the plaintiff to
show that the plaintiff is in possession and enjoyment of the
suit schedule property since 1952. Hence, the plaintiff
Sri Krishnappa prayed to reject the Commissioner report.
The defendants in O.S.No. 15040/2003, have not filed
objections to the Court Commissioner report inspite of
51
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
opportunity given to them. Thereafter the counsel for the
plaintiff in O.S.No.15040/2003 submitted on 10/06/2019
that he intends to lead evidence of Court Commissioner and
he has paid process for issue of summons to the Court
Commissioner on 19/06/2019, then summons to Court
Commissioner was issued and the same was served as per
order sheet dated 10/07/2019, but Court Commissioner was
absent, hence NBW issued to Court Commissioner and case
posted to 18/07/2019. On 18/07/2019 the ADLR, Bangalore
South, who is the Court Commissioner appeared before the
court and on that day the plaintiff counsel prays time and
time was granted and the case posted to 22/07/2019. On
22/07/2019 the Court Commissioner, ADLR, Bangalore
South was present before the court and the counsel for the
plaintiff in O.S.No. 15040/2003 submitted that he has
objected the Court Commissioner report and hence he wants
to cross examine the Court Commissioner. The counsel for
52
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
defendant No.1 and 2 submitted no objections to the Court
Commissioner report. On that day, it was ordered that the
Court Commissioner has not filed affidavit in lieu of
examination in chief as required under Order 18 Rule 4 of
CPC and the Court Commissioner filed memo praying to
consult Government Pleader and the time granted. The
plaintiff counsel in O.S.No.15040/2003 submitted before the
court on that day that the Court Commissioner may be
examined as Court witness. The Court passed orders that the
Court Commissioner is not called as Court witness and as
per process Memo filed by plaintiff side summons issued to
Court Commissioner on 19/06/2019. Hence it is not proper
to examine Court Commissioner as Court witness.
Thereafter the case again posted for evidence of Court
Commissioner. But later on 21/08/2019 the Court
Commissioner was absent and the plaintiff counsel has not
taken any steps to lead evidence of Court Commissioner.
53
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
Hence evidence of Court Commissioner is taken as nil.
Therefore the Court Commissioner is not examined by the
plaintiff in O.S.No.15040/2003.
29. The Court Commissioner along with the report has
produced copy of property card relating to Sy.No.672 and
665, sketch of the property CTS No.665 and CTS No.672,
photographs, xerox copy of sale deed executed in favour of
Smt. Rahamath Khatoon W/o Sri Yousuf Khan dated
02/02/2000. Further the Court Commissioner has also
prepared sketch of the disputed property relating to both the
suits. The Court Commissioner has also produced notice
issued by him to the plaintiff Sri Krishnappa and the
defendant Smt. Rahamath Khatoon and on the said notice
the plaintiff Sri Krishnappa has signed and also it is written
on the said notice that he has received the notice on behalf
of his counsel also. Further, the defendant Smt. Rahamath
Khatoon has also been received the notice and she has
54
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
signed on the said notice both on behalf of herself and also
on behalf of her advocate she received notice. In the said
notice the date was fixed on 28/12/2018 at 11.00 a.m., for
conducting spot inspection and mahazar of the suit schedule
property in both the suits. Further there is another one
document statement dated 28/12/2018 produced along with
the Court Commissioner report by the Court Commissioner,
wherein also the defendant Smt. Rahamath Khatoon and her
advocate and also two witnesses have signed and in place of
plaintiff some one have signed by writing 'objections to
subject'. Therefore, it is well within the knowledge of the
plaintiff about the date fixed by the Court Commissioner for
conducting spot inspection of the suit schedule property in
both the suits on 28/12/2018 at 11.00 a.m. and the plaintiff
signed on the said notice. Hence the contention of the
plaintiff Sri Krishnappa that he is not intimated by the Court
Commissioner about fixing the date and time of spot
55
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
inspection and mahazar of suit schedule property is not
proper to accept. Hence, there is no merit in the objections
raised by the plaintiff Sri Kempanna to the Court
Commissioner Report.
30. As per the Court Commissioner sketch, land in
CTS No.672 originally belonged to Sri Munigangappa [land
marked as ABCDEHIA in the sketch] and out of which the
land measuring 30 x 20 square feet [shown in red and green
colour in the sketch] transferred in the name of Smt.
Rahamath Khatoon. It is further mentioned in the report
that the property at CTS 665 belongs to Sri Krishnappa
[plaintiff in O.S.No.15040/2003]. Further, in the property
card of CTS 672 there is averment about sale of 30 x 20 ft.
in favour of Smt. Rahamath Khatoon W/o Sri Yousuf Khan
and original owner of property Munigangappa died leaving
behind his sons G. Muniyappa, B. M. Shatrugna, M.
Shantharaju. The said (1) Muniyappa has a son Sri
56
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C/w O.S.No. 10115/2005
Sathyanaranaya, the said (2) Sri Shatrugna has a son B.S.
Munirathnam and the said (3) Sri M. Shantharaju has a son
Sri B.S. Rajashekar. The LRs of the said Sri Munigangappa,
as mentioned above, have sold property measuring 30 Ft. x
20 Ft. in CTS No.672 of Valmikinagar, in favour of Smt.
Rahamath Khatoon under SR No.4682/1999-2000. Further
the property card of CTS No.665 discloses name of Sri.
Krishnappa and his name is mentioned as purchaser of the
property. Further, the Court Commissioner has produced
documents titled as ನಗರ ಮಮಪನ ವಚಮರಣಮ ವಹ relating to
CTS 665, wherein name of Sri Krishnappa is mentioned in
respect of property No.28 which comes within CTS 665.
The plaintiff in O.S.No.15040/2003 Krishnappa has not
produced any specific documents to show situation of
property No.28. Therefore plaintiff in O.S.No.15040/2003
and defendant in O.S.No.10115/2005 Sri Krishnappa failed
to prove that he is the absolute owner of property to an
57
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
extent of 40 x 30 feet out of 30 x 60 feet in premises bearing
old No.235 and new No.28, situated at 2nd cross Road,
Valmiki Nagar, Mysore Road, Bangalore. Whereas the
documents produced by the plaintiff as discussed above
discloses that he is the owner to the extent of 30 x 20 feet in
the suit schedule property No.28 of Valmikinagar, 2 nd Cross
Road, Bangalore and the Court Commissioner report and the
documents discloses that property No.28 comes within CTS
665. Therefore the plaintiff in O.S.No.15040/2003 Sri
Krishnappa is not entitled for declaration as absolute owner
of 40 x 30 Ft. area in property No.28, 2nd cross,
Valmikinagar, Bangalore as claimed and also not entitled for
permanent injunction as claimed in his plaint since he has
failed to prove that he is in exclusive possession and
enjoyment of 40 x 30 ft area as claimed in the plaint. To the
contrary the plaintiff of O.S.No.10115/2005 and defendant
of O.S.No.15040/2003 Smt. Rahamath Khatoon proved that
58
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
she has purchased vacant site bearing No.27/1, measuring
North to South 20 feet and East to West 30 feet and it is
situated at 2nd Cross, Valmiki Nagar, Ward No.45, both by
way of oral and documentary evidence.
31. Further, in the sketch prepared by the Court
Commissioner, he has marked the portion of property in
CTS No.672 of Valmikinagar in both red and green colour
stating that the same is the suit schedule property in O.S.No.
10115/2005 belongs to Smt. Rahamath Khatoon, as per the
sale deed. The plaintiff Sri Krishnapa has constructed a shed
house marked in red colour portion shown in the sketch and
the plaintiff Krishnappa is also in possession of the
adjoining portion marked in green colour. Therefore, it is
clear from the report of the Court Commissioner and also
the sketch prepared by the Court Commissioner that the area
marked in both red and green in colour belongs to Smt.
Rahamath Khatoon, which is the suit schedule property in
59
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
O.S.No. 10115/2005 which comes within CTS No.672 and
the plaintiff Sri Krisnappa has constructed a sheet shed in a
portion of property of Smt. Rahamath Khatoon and also he
is in possession of some open space belonging to Smt.
Rahamath Khatoon. The said Smt. Rahamath Khatoon
contended that the plaintiff Sri Krishnappa has illegally
obtained possession of her property as per the schedule in
O.S.No.10115/2005 and constructed shed in her property.
Hence, Smt. Rahamath Khatoon prays for declaration that
she is the absolute owner of the suit schedule property in
O.S.No.10115/2005 and also direct the defendant to quit and
deliver vacant possession of the suit schedule property to the
plaintiff Smt. Rahamath Khatoon and direct the defendant
Sri Krishnappa to pay a sum of Rs.32,000/- towards
damages for the illegal use and occupation of the suit
schedule property from 20/03/2003 onwards till the date of
filing the suit and award future damages at Rs.1,000/- per
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O.S.No. 15040/2003
C/w O.S.No. 10115/2005
month from the date of suit till the date of actual delivery of
possession of the suit schedule property by the defendant Sri
Krishnappa to the plaintiff Smt. Rahamath Khatoon.
Therefore, from the Court Commissioner report, it is clear
that Sri Krishnappa, is in unauthorized possession of the suit
schedule property in O.S.No. 10115/2005 belonging to Smt.
Rahamath Khatoon. Hence, the plaintiff in O.S.No.
10115/2005 proved that she is the absolute owner of the suit
schedule property in O.S.No. 10115/2005 and she is entitled
to possession of the suit schedule property from the
defendant Sri Krishnappa and also entitled to claim damages
as prayed by her. Hence the plaintiff in O.S.No. 15040/2003
failed to prove Issues No.1 to 5. Hence I answer Issues No.1
to 5 in Negative in O.S.No.15040/2003. The plaintiff in
O.S.No.10115/2005 has proved Issues No. 1 to 4. Hence I
answer Issues No. 1 to 4 in Affirmative in O.S.No.
10115/2005.
61
O.S.No. 15040/2003
C/w O.S.No. 10115/2005
32. Issue No.6 in O.S.No. 15040/2003 and Issue No.5
in O.S.No. 10115/2005 :-
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff in O.S.No.15040/2003 is hereby dismissed.
The suit of the plaintiff in O.S.No.10115/2005 is hereby decreed with costs. It is ordered and decreed that the plaintiff Smt. Rahamath Khatoon, is the absolute owner of the suit schedule property in O.S.No.10115/2005 and the defendant Sri Krishnappa in O.S.No.10115/2005 is directed to quit and deliver vacant possession of the suit schedule property to the plaintiff Smt. Rahamath Khatoon and also to pay a 62 O.S.No. 15040/2003 C/w O.S.No. 10115/2005 sum of Rs.32,000/- towards damages for the illegal use and occupation of the suit schedule property from 20/03/2003 onwards till the date of filing the suit and also to pay damages at Rs.1,000/- per month from the date of filing the suit till the date of actual delivery of possession of the suit schedule property by the defendant to the plaintiff.
Draw decree accordingly Keep original of the common judgment in O.S.No.15040/2003 and a copy in O.S.No.10115/2005 for reference.
(Dictated to the Judgment Writer, transcript thereof corrected and then pronounced by me in the open court on this 22nd day of November, 2019).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE 63 O.S.No. 15040/2003 C/w O.S.No. 10115/2005 :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW1 Sri Krishnappa PW2 Sri Krishnappa [The affidavit evidence of
plaintiff Sri M. Krishnappa, as PW2 is discarded as per orders dated 29/01/2013] PW3 Smt. Girijamma DOCUMENTS MARKED FOR THE PLAINTIFF:
ExP1 Original sale deed dated 17/12/1952 executed by one Sri Krishnappa, aged 14 years, minor represented by Smt. Puttamma in favour of Munigangappa S/o. Muniyappa in respect of property bearing Municipal No.235, Rajiv Nagar, Bangalore City ExP2 Assessment register extract in respect of property bearing New No.28, 2nd cross, Valmikinagar measuring 20' x30' in which name of Sri Krishnappa [plaintiff in O.S.No. 15040/2003] is shown as owner of the property, ExP3 Tax paid receipt in the name of the plaintiff [O.S.No. 15040/2003] in respect of property No.28, 2nd cross, Valmikinagar, dated 03/12/2005.
ExP4 Tax paid receipt in respect of property No.28, 2nd cross, Valmikinagar in the name of Sri Krishnappa dated 02/12/2009.64
O.S.No. 15040/2003 C/w O.S.No. 10115/2005 ExP5 Tax paid receipt in the name of R. Krishnappa in respect of property No.28, 2nd cross, Valmikinagar, Azad Nagar.
ExP6 Tax paid receipt in the name of R. Krishnappa in respect of property No.28, 2nd cross, Valmikinagar, Azad Nagar.
ExP7 Rough sketch of suit schedule property, ExP8 Death Certificate of Puttamma ExP9 and ExP10 are voters list ExP11 Khatha endorsement ExP12 Tax paid receipt ExP13 Khatha certificate ExP14 Khatha exacts in respect of property No.28, 2 nd cross, Valmikinagar, Azad Nagar ExP15 Encumbrance certificate for the period from 01/04/1943 to 31/03/1957 in respect of property No.235, Doddapalya ExP16 Encumbrance certificate for the period 01/04/1952 to 28/02/1959 in respect of property No.235 measuring 30 x 20.
ExP17 Encumbrance certificate for the period 31/03/1958 to 31/03/2005 in respect of property No.235, Valmikinagar, Bangalore ExP18 Encumbrance certificate for the period from 01/04/2008 to 31/03/2009 in respect of property 65 O.S.No. 15040/2003 C/w O.S.No. 10115/2005 No.235, New Municipal O.28, 2nd cross, Valmikinagar, Bangalore measuring 30 x 20 ft. ExP19 to ExP22 photographs ExP19(a) to ExP22(a) negatives ExP23 Khatha extract issued by Bangalore Mahanagarapalike for the period 01/04/1996 to 10/07/2000 in respect of property No.28 2nd cross Valmikinagar wherein name of the owner is shown as 'Holder' ExP24 Two tax paid receipts dated 11/01/2000 and 12/01/2000 in respect of property No.28, 2 nd cross road, Valmikinagar wherein name of owner is shown as 'Holder' ExP25 Encumbrance certificate for the period from 01/04/1980 to 25/09/1996 in respect of property N.235 presently called No.28, 2nd cross road, Valmikinagar, Mysore Road, Bangalore ExP26 Endorsement issued by Asst Revenue Officer Ex.P27 Copy of voters list WITNESSES EXAMINED FOR THE DEFENDANT/S:
DW1 Sri Yousuff Khan S/o. Late Abdul Khuddus Khan DOCUMENTS MARKED FOR THE DEFENDANT/S: ExD1 General Power of Attorney executed by plaintiff in O.S.No. 10115/2005 in favour of her husband to represent her in the proceedings of the suit.66
O.S.No. 15040/2003 C/w O.S.No. 10115/2005 ExD2 Original sale deed dated 02/02/2000 executed by Sri M. Sathyanarayana, Sri B.S.Munirathna and Sri B.S. Rajashekar in favour of Smt. Rahamath Khatoon [plaintiff in O.S.No. 101152005].
ExD3 Certificate issued by Bangalore Mahanagara Palike in the name of Smt. Rahamath Khatoon, in respect of property No.27/1, Valmikinagar, 2nd cross road. ExD4 Tax paid receipt dated 28/5/2005. ExD5 Copy of property register card issued by the office of Land Records in which name of Smt. Rahamath Khatoon W/o. Sri Yousuf Khan is shown as holding 30 x 20 Ft. property under sale deed.
ExD6(1) Encumbrance certificate in respect of property No.235 at Doddapalya, for the period from 01/04/1943 to 31/03/1957.
ExD6(2) Encumbrance certificate in respect of property No.27/1, measuring 30 x 20 Ft.
ExD7(1) to ExD7(10) are tax paid receipts in respect of property bearing No.27/1, 2nd cross, Valmikinagar for the period from 2000-2001 to 2012-2013 in the name of Smt. Rahamath Khatoon.
ExD8 Uttara Pathra issued by Bangalore Mahanagara Palike in respect of property No.27/1, Valmikinagar, 2nd cross, in respect of transfer of Khatha in the name of Rahamath Khatoon [plaintiff in O.S.No. 10115/2005.67
O.S.No. 15040/2003 C/w O.S.No. 10115/2005 ExD9 Notice of change of Rights issued by the office of Asst. Director of Land Records wherein name of Smt. Rahamath Khatoon is shown as holder of property in Valmikinagar, CTS No.672 measuring 30' x 20' Ft. ExD10 Certificate issued by the office of Asst.
Director of Land Records in respect of Sy.No. 672 of Valmikinagar, Bangalore wherein name of one Sri Munigangappa is shown as holder of property.
ExD11 Provisional order passed u/s. 321(1) of KMC act by the Jagajeevanram Nagar Sub Division of Bangalore Mahanagara Palike and the same addressed to Smt. Rahamath Khatoon, No27/1, 2nd cross, Valmikinagar. ExD12 Notice u/s. 321(2) of KMC Act issued to Smt. Rahamat Khatoon, that she has constructed building unauthorizedly XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
68O.S.No. 15040/2003 C/w O.S.No. 10115/2005 22/11/2019 OS 15040/2003 Plf - CSP D 1 & 2 - NJ D3 - SAS for Judgment OS 10115/2005 Plf - SAS Def - SS for Judgment Common Judgment pronounced in the open court (Vide separate detailed Common Judgment) The suit of the plaintiff in O.S.No.15040/2003 is hereby dismissed.
The suit of the plaintiff in O.S.No.10115/2005 is hereby decreed with costs. It is ordered and decreed that the plaintiff Smt. Rahamath Khatoon, is the 69 O.S.No. 15040/2003 C/w O.S.No. 10115/2005 absolute owner of the suit schedule property in O.S.No.10115/2005 and the defendant Sri Krishnappa in O.S.No.10115/2005 is directed to quit and deliver vacant possession of the suit schedule property to the plaintiff Smt. Rahamath Khatoon and also to pay a sum of Rs.32,000/- towards damages for the illegal use and occupation of the suit schedule property from 20/03/2003 onwards till the date of filing the suit and also to pay damages at Rs.1,000/- per month from the date of filing the suit till the date of actual delivery of possession of the suit schedule property by the defendant to the plaintiff.
Draw decree accordingly Keep original of the common judgment in O.S.No.15040/2003 and a copy in O.S.No.10115/2005 for reference.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE