Bangalore District Court
Smt. S. Tanga Rani W/O Siddangangaiah vs Sri. Narayanappa S/O Late ... on 22 September, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S No.17127/2004
Dated this the 22nd day of September 2021
Plaintiff 1. Smt. S. Tanga Rani W/o Siddangangaiah,
Aged about 35 years, Resident of No.41,
3rd Cross, Jayanthi Nagar,
Horamavu Village, K.R Puram Hobli,
Bangalore-560 043.
(Rep by Sri.A.R Advocate)
V/S
Defendants 1. Sri. Narayanappa S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 50 years,
2. Sri. Nagaraj S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 45 years,
Since deceased represented by his LR.
2(a) Smt. Shashikala W/o Late C. Nagarajappa,
Aged about 47 years,
Residing at Horamavu Village & Post,
Near Mariyamma Temple Street,
K.R Puram Hobli, Bangalore East Taluk,
Bangalore-560 043.
3. Sri. Jayaram S/o Late Venkataswamapppa
@ Chikka Abbaiah, Aged about 40 years,
1 to 3 residing at: Horamavu Village,
K.R Puram Hobli, Bangalore-560 043.
2
Judgment O.S.No.17127/2004
4. Smt. Madireddy Sripadmavathi
W/o Sri. Jagadish, Aged about 36 years,
R/o No.7, Scientist Hostel,
C.V. Raman Nagar, DRDO Township,
Bangalore-560 093.
5. Sri. Y.N. Konda Reddy S/o Narayana Reddy,
Aged about 42 years, R/o No.83,
Yerandahalli, Hennagara Post,
Anekal Taluk, Bangalore-562106.
(Rep by defs No.1 to 3 Sri.PSN, Advocate,
Def No.4-Exparte, def No.5 rep by Sri.MRS Advocate)
Date of Institution of the suit 22/11/2004
Nature of the (Suit or pro-note, suit for declaration and Suit for permanent
possession, suit for injunction, etc.) injunction
Date of the commencement of recording of the Evidence. 13/11/2006
Date on which the Judgment was pronounced. 22/09/2021
Year/s Month/s Day/s
Total duration 16 11 00
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
:JUDGMENT:
The plaintiff filed suit against the defendants for permanent injunction.
2. The brief facts of plaint averments is as under:
The plaintiff submits that she is absolute owner of the suit schedule property mentioned below:-3
Judgment O.S.No.17127/2004
:SUIT SCHEDULE PROPERTY:
All that piece and parcel of the Eastern Portion of House+ property bearing No.41, House List Khatha No.135/4 formed in portion of the land in Sy.No.81/2 in Horamavu Village, K.R.Pura Hobli, Bangalore South Taluk, (presently Bangalore East Taluk) measuring East to West 15 feet, North to South 36+36.6/2 feet, measuring in all 543.75 Sq.ft bounded by East:Site No.40, West: Remaining Portion of Site No.41 belongs to R.Gangadharan, North: Road, South:
Private property.
The plaintiff submits that she purchased site No.41 schedule property for valuable consideration from T.V.K.Krishnakumari under registered sale deed on 01/08/2001. Her her vendor T.V.K. Krishnakumari purchased eastern portion of site No.41 from defendants No.1 to 3 under registered sale deed on 13/01/1992, defendant No.4 is registered power of attorney holder of defendants No.1 to 3 who helped the defendants No.1 to 3 in formation of the layout in land in Sy.No.81/2 of Horamavu 4 Judgment O.S.No.17127/2004 Village and negotiated and transacted with site purchasers on behalf of the defendants No.1 to 3. She has purchased Eastern half portion of site No.41 from her vendor and got khatha in village panchayat registered in her name. She has constructed her house on the suit schedule site as per the plan and she is residing therein along with her family members. That she has been in peaceful possession and enjoyment of her suit schedule house ever since it was constructed in the year 2002.
3. The plaintiff further submits that at defendants No.1 to 3 were the original owners of the land in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli. During the year 1991 defendants No.1 to 3 formed layout of house sites in the Northern portion of their land in Sy.No.81/2 with total number of 47 sites and offered to sell to intending purchasers of sites thus formed. The defendants No.1 to 3 also appointed defendant No.4 as Power of Attorney Holder to transact with site purchasers. The defendants No.1 to 3 also got House List Khata numbers allotted to the sites formed in this layout by Horamavu Village Panchayat. The schedule property Site No.41 was assigned with House list 5 Judgment O.S.No.17127/2004 No.135/4. The Northern portion of survey No.81/2 to an extent of acre 24 guntas, wherein defendants formed residential layout with 47 sites was bounded by North: land in Sy.No.81/1 belongs to Yamanna, End: land in Sy.No.84 belongs to Baluki Dasappa, West: Jayanthi gram hamlet of Horamavu Village, South: land (sold) belongs to defendant No.4 Padmavathi in the same Sy.No.81/2.
4. The plaintiff submits that she and many others purchased sites in layout under registered sale deeds from defendants No.1 to 3. All the 47 sites were thus sold to different purchasers during the year 1992. The defendants No.1 to 3 did not retain any right or title over northern portion of the land in Sy.No.81/2 wherein the sites were formed. Thus since 1992 defendants No.1 to 3 ceased to be owners of land, wherein the said layout was formed. The plaintiff submits that in the year 2003 she constructed residential building on schedule site after obtaining building license from Horamavu Village Panchayat authorities and ever since she along with her family members is peaceful possession and enjoyment of the schedule property. That her 6 Judgment O.S.No.17127/2004 vendor and many others who have purchased sites as stated above from defendants No.1 to 3 constructed their houses in their respective sited by spending their hard earned money and also by availing house construction loans from banks and financial institutions. She and all other purchasers of sites have been in peaceful possession and enjoyment of their respective sites. That from the past 13 years there was no agricultural operation on the land in Sy.No.81/2 where in layout is formed and it is developed residential layout, and Horamavu Village authorities have approved residential layout by issuing house list numbers and house building licenses to site owners.
5. The plaintiff further submits that on 21/10/2004 defendant No.5 has appeared in the layout with strange claim that he has purchased the land wherein the layout was formed by the defendants No.1 to 3 about 13 years ago and had sold sites to her and others and put them in physical possession and enjoyment under registered sale deeds. The defendant No.5 claims that he has purchased land wherein the layout is formed under registered sale deed on 01/03/2004 to an extent of 1 acre 7 guntas 7 Judgment O.S.No.17127/2004 agricultural land from defendants No.1 to 3 and their children. The defendant No.5 has appeared in layout on 21/10/2004 with his gang and henchmen and threatened her and other owners of sites and houses in the layout to give up their properties or they will be forcibly evicted from their properties.
6. The plaintiff further submits that she and other owners of the sites are tried to contact defendants No.1 to 3 and defendant No.4 on this untenable claim of defendant No.5, but they are avoiding to answer him and other site owners in the layout. It has become clear that the defendants No.1 to 5 in collusion with each other fraudulently engineered and registered the sale deed now claimed by the defendant No.5 to illegally knock off and grab his property and other site owners properties in the layout and for making unlawful gain for themselves. That after formation of said layout in their land in question in Sy.No.81/2 and sale of sites under registered sale deeds to purchasers and after putting purchasers in possession of their respective sites, the defendants No.1 to 3 had no more rights, title or interest remaining with them in respect of land wherein the layout was 8 Judgment O.S.No.17127/2004 formed to convey to defendant No.5 under sale deed dated 01/03/2004. The alleged sale deed of defendant No.5 in respect of said land wherein layout formed is fraudulent instrument and it does not confer any title to defendant No.5 in respect of land wherein the layout was formed and said sale deed claimed by defendant No.5 is nullity and it does not affect in any manner the lawful title, rights and interest on her suit schedule property.
7. The plaintiff further submits that on 21/10/2004 defendant No.5 and his henchmen came to the layout on and threatened her and other owners of forceful interference and eviction. That she and other site owners filed police complaint in the Ramamurthy Nagar Police Station against the threats of the defendants. The suit property is situated with Bengaluru Metropolitan Limits. She and other site owners in the layout are living under the threat of forceful eviction by the defendant No.5 and his supporters.
8. The plaintiff further submits that she has got legal right to peaceful possession and enjoyment of the suit property. The 9 Judgment O.S.No.17127/2004 defendants No.1 to 5 by creating fraudulent titled deeds and with manipulated revenue records made on the strength of such fraudulent title deed are trying to interfere with the peaceful possession and enjoyment of the schedule property by the plaintiff. The defendant No.5 with his men and money power is physically interfering and threatening and dispossessing her from the property.
9. The plaintiff further submits that the cause of action for suit arose on 21/10/2004 when the defendant No.5 came to plaintiff's property and threatened to interfere with his peaceful possession and enjoyment of the suit property. The plaintiff prays to pass decree to the suit for permanent injunction restraining the defendants their heirs, successors, agents or any one claiming under them from interfering in any manner with her peaceful possession and enjoyment over the suit schedule property.
10. The defendants No.1 to 3 have filed written statement. The defendants No.1 to 3 denied entire plaint allegations and 10 Judgment O.S.No.17127/2004 also denied ownership of the plaintiff over the suit schedule property. The defendants No.1 to 3 submit that suit of plaintiff for relief of bare injunction without seeking declaratory relief is not maintainable either in law or on facts. The suit filed by plaintiff is frivolous, vexatious, mischievous, in nature and plaintiff had suppressed material facts and misrepresented the facts. The defendants No.1 to 3 submit that there is no cause of action to file suit, court fee paid is in sufficient.
11. The defendants No.1 to 3 alleged that suit schedule property is not at all in existence as described in schedule of the plaint. The defendants No.1 to 3 out of total extent of 3 acre 17 guntas of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk presently Bangalore East Taluk sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma W/o Dasappa and another extent of 30 guntas of land in favour of Padmavathi Madareddy/defendant No.4 and retained 1 Acre 7 Guntas of land in the said Sy.No.81/2 of Horamavu Village. The defendants No.1 to 3 were title holders in possession and enjoyment of the extent of 1 Acre 7 guntas of 11 Judgment O.S.No.17127/2004 land Sy.No.81/2 of Horamavu Village and they have sold said extent of the land in favour of Y.N. Kondareddy/ defendant No.5 under registered sale deed on 01/03/2004 and rectification deed dated 29/03/2004, since then defendant No.5 is in possession and enjoyment of the said extent of the land. That the defendants No.1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu Village in favour of Padmavathi Madareddy i.e. defendant No.4 and have not entered in to any other transaction with the defendant No.4 except for the sale deed referred to above, which has been executed by the defendants No.1 to 3. That no sites have been formed in the land measuring an extent of 1 Acre 7 Guntas, which has been sold in favour of the defendant No.5.
12. The defendants No.1 to have denied the allegations of plaint paras No.2 to 13 and also denied cause of action file suit. The defendants No.1 to 3 denied the alleged site No.41 which is said to have been purchased by the plaintiff under the registered sale deed dated 01/08/2001 has been formed in Sy.No.81/2 of Horamavu Village from its vendor T.V.K. Krishnakumari, who 12 Judgment O.S.No.17127/2004 had purchased the same from the defendant No.4 as the alleged GPA holder of the defendants No.1 to 3. The defendant No.1 to 3 submits that the alleged GPA said to have been executed by the defendants No.1 to 3 in favour of the defendant No.4 which has been obtained by the defendant No.4 from the defendants No.1 to 3 by misrepresentation and by playing fraud upon the defendants No.1 to 3. Thus no power has been confirmed upon the defendant No.4 under the alleged General Power of Attorney. In fact the defendants No.1 to 3 did not own and possess the suit schedule site and hence the question of executing General Power of Attorney in favour of the defendant No.4 dies not arise at all. The alleged layout plan said to have been furnished by the defendants No.1 to 4 to the plaintiff at the time of entering in alleged sale agreement is got up and concocted layout plan. The defendants No.1 to 3 submits they have sold land measuring an extent of 1 Acre 7 Guntas in favour of the defendant No.5 under registered sale deed dated 01/03/2004. The defendants No.1 to 3 prays to dismiss the suit with cost.
13
Judgment O.S.No.17127/2004
13. The defendant No.4 not appeared inspite of service of suit summons and placed exparte. The defendant No.5 has filed his written statement. The defendant No.5 denied entire plaint allegations. The defendant No.5 submits that suit of plaintiff for relief of permanent injunction in respect of alleged non existed suit schedule property is not sustainable either in law of on facts. Without seeking the declaratory relief of title and consequential reliefs , the suit filed for bare injunction is not maintainable. The defendant No.5 submits that description of the property, its extent and boundaries mentioned in the schedule of plaint are not correct. The plaintiff is making an attempts to lay claim for portion in land measuring an extent of 1Acre 7 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, (Previously Bangalore South Taluk) under the guise of having purchased site bearing list No. under registered sale deed. There cannot be site bearing house list number in agricultural land. The house list number indicates that the property is Gramatana property. However plaintiff is trying to lay claim for portion in land measuring an extent of 1 Acre 7 14 Judgment O.S.No.17127/2004 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South taluk and presently Bangalore East Taluk. The plaintiff has to first establish that there is sites bearing the house list number with its extent & boundaries as mentioned in the sale deed & that the said sites is within the Gramatana limits, then only plaintiff can claiming a right over suit schedule property.
14. The defendant No.5 further submits that plaintiff is not having title & possession to the property as described in schedule of plaint. The court paid is insufficient. There is no cause of action for suit, hence plaintiff is not entitle for relief of permanent injunction. The defendants No.1 to 3 are title holders and in possession and enjoyment of land measuring an extent of land 3 Acre 17 Guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, they sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour of Padmavathi Madareddy/defendant No.4 and they have retained the land measuring 1 Acre 07 guntas, and they were in possession and enjoyment of the said land as absolute owners and they have sold said land in favour of 15 Judgment O.S.No.17127/2004 defendant No.5 under registered sale deed dated 01/03/2004 and by rectification deed dated 29/03/2004, since from the date of purchase 01/03/2004 possession of said land has been delivered to the defendant No.5, he is possession of the said extent of land as absolute owner and khata of property mutated in his name as per M.R No.48/03-04 and entered his name in the pahanies in respect of said land. Then he approached survey department and said land in Sy.No.81/2 of Horamavu village being surveyed and phoded, land measuring an extent of 1-07 guntas has been assigned with new Sy.No.81/3. The aforesaid extent of 1 Acre 7 guntas in new Sy.No.81/3 (old Sy.no.81/2) of Horamavu Village has not been converted for non-agricultural residential purposes and it remains as an agricultural land.
15. The defendant No.5 denied allegations of plaint paras No.2 to 13. The defendant No.5 submits that document upon which plaintiff is relying in support of his title and possession of schedule property do not in any manner relate to the land in Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, hence the plaintiff can't claim any 16 Judgment O.S.No.17127/2004 right of possession over any portion of land in Sy.No.81/3 (Old No.81/2) of Horamavu Village, K.R Puram Hobli. The defendant No.5 prays to dismiss the suit of plaintiff with costs.
16. On the basis of above pleadings following Issues are framed.
:ISSUES:
(1) Whether the plaintiff proves that his lawful possession and enjoyment over the suit schedule property as on the date of the suit?
(2) Whether the plaintiff proves the alleged obstructions?
(3) Whether the plaintiff is entitled to the reliefs claimed?
(4) What order?
17. The plaintiff examined as PW.1 and marked ExP1 to ExP8. The defendant No.1 examined as DW.1. The defendant No.5 examined as DW.2 and marked ExD1 to ExD31. 17
Judgment O.S.No.17127/2004
18. The plaintiff counsel argued. The defendants No.1 to 3 counsel argued. The defendant No.5 counsel argued and filed written argument with citations. Perused the records.
19. My findings to above Issues are as under
Issue No.1) In Negative Issue No.2) In Negative Issue No.3) In Negative Issue No.4) See final order for following:
:REASONS:
20. Issues No.1 to 3:
The plaintiff S. Tanga Rani W/o Siddangangaiah filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that she is absolute owner in possession and enjoyment of the house property described in the schedule. She has purchased Eastern half portion of site No-41 in schedule property from T.V.K. Krishnakumari for valuable sale consideration under registered sale deed on 01/08/2001. The said T.V.K. Krishnakumari 18 Judgment O.S.No.17127/2004 purchased schedule site from defendants No.1 to 3 through their GPA holder/defendant No.4 for valuable consideration under registered sale deed on 13/01/1992. The defendants No.1 to 3 were earlier original owners of schedule Site No-41, who through their Power of Attorney holder MadiReddy. S. Padmavathy/defendant No.4 sold schedule site to her vendor. After purchase of portion of site No.41 from her vendor, she got khatha in village panchayath changed in her name. In the year 2003 she has constructed her house in schedule site as per sanctioned plan and she is residing there along with her family. She has been continued peaceful possession and enjoyment her suit schedule house ever since it was constructed in the year 2003. The defendants No.1 to 3 were original owners of the land in Sy.No.81/2 of Horamavu village, K.R. Puram Hobli, and in the year 1991 they formed layout of sites in northern portion of their land in Sy.No.81/2 to an extent of 1 acre 24 Guntas with total number of 47 sites and got House List Khtha allotted to sites and offered to sell the sites to intending purchasers through their power of attorney holder/ defendant No.4. The schedule site was allotted with House List No.122/2. These sites were bounded by North: land in Sy.No.81/1 belonging to Yamanna, 19 Judgment O.S.No.17127/2004 East: land in Sy.No.84 belonging to Baluki Dasappa, West:
Jayanthi Grama, a hamlet of Horamavu village, South:land (now sold) belonging to defendant No.4 in the same Sy.No.81/2. All the 47 sites were thus sold to different purchasers including her in the year 1992. The defendants No.1 to 3 did no retain any right or title over northern portion of land in Sy.No.81/2, wherein sites were formed and defendants No.1 to 3 ceased to be owners of land wherein said layout was formed. In the year 2003 she has constructed residential building on her schedule site after obtaining building licence from Horamavu Village Panchayat Authorities and ever since she and her family members are staying there in the house. Like her many of the other purchasers of sites from defendants No.1 to 3 have constructed their houses in their respective sites by spending their hard earned money as well as by availing house construction loans from banks and financial institutions. She and other purchasers are in peaceful possession of the respective sites with the houses on them. That for the past 13 years there was no agricultural operation on the land in Sy.No.81/2 where layout is formed. It is fully developed residential layout and Horamavu 20 Judgment O.S.No.17127/2004 village panchayat authority approved residential layout by issuing house list numbers and house building license to site owners. That being the state of affairs on 21/10/2004 defendant No.5 with his gang and henchmen has appeared in layout with strange and equally untenable claim that he has purchased land, wherein layout was formed by defendants No.1 to 3 about 13 years ago, and sold said sites to her and other purchasers. The defendant No.5 claims that he has purchased land wherein layout was formed under registered sale deed on 01/03/2004 to an extent of 1 acre 7 guntas agricultural land from defendants No.1 to 3 and their children.
21. The PW.1 further deposed evidence that on 21/10/2004 the defendant No.5 along with gang and henchmen threatened her and other owners of sites and houses in layout to give up their properties or else they would be forcibly evicted from their properties. Against this forceful threatened interference and eviction by defendant No.5, she and other site owners have filed Police complaint in Rarnarnurthy Nagar Police Station. She along with site owners tried to contact defendants No.1 to 4 to find out about untenable claim of defendant No5 over their properties. But defendants No.1 to 4 were 21 Judgment O.S.No.17127/2004 avoiding to answer their queries and other purchasers. It has become clear to her and other owners of sites in layout that defendants No.1 to 5 in collusion with each other fraudulently engineered and registered the sale deed now claimed by defendant No.5 to illegally knock off and grab her property and properties of others in layout and for making unlawful gain for themselves. That after formation of sites in their land in Sy.No.81/2 and sale of sites under registered sale deeds to her and other purchasers for valuable consideration and putting the purchasers in possession of the properties, defendants No.1 to 3 had no more rights, title or interest remaining with them in respect of land to convey to the defendant No.5 under sale deed on 01/03/2004. It is fraudulent instrument and same does not confer any title to defendant No.5 is nullity and it does not affect in any manner her lawful title right and interest on suit schedule property. She and other site owners in layout are living under threat of forceful eviction by defendant No.5 and his supporters, who with his money and muscle power is physically interfering and threatening her of dispossession of her property defendant No.1 to 5 by creating fraudulent title deeds and with 22 Judgment O.S.No.17127/2004 manipulated revenue records made on the strength of such fraudulent title deeds are trying to interfering with her peaceful possession and ,1 enjoyment of schedule property. She has got legal right to peaceful possession and enjoyment of suit property. The PW.1 prays to decree the suit as prayed in plaint. In support of oral evidence PW.1 marked documents ExP1 to ExP8.
22. The defendant No.1 Narayanappa S/o Venkataswamappa @ Chikkabbaiah filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that plaintiff filed suit for permanent injunction in respect of non existed alleged suit schedule property, description of the property, boundaries, measurement in the plaint schedule is imaginary and not in existence. The land bearing Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South Taluk, (Presently Bangalore East Taluk), totally measuring 3 acres 17 Guntas originally belongs to their grandmother Venkatamma, she executed registered WILL dated 13/06/1988 in favour of him and his two brothers namely Nagaraja, Jayaram and his sister Pullamma. Their grandmother sold 1 acre 20 guntas in favour of 23 Judgment O.S.No.17127/2004 Munivenkatamma of Southern Portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title, interest and possession as per her last will executed in their favor. That he became absolute owners of land measuring 1 acre 37 guntas including kharab of 6 Guntas in the said survey number, which is bounded by East: land of Baluki Dasappa, West: Jayanthi Village, North: land of Yamanna, South:
remaining portion in Sy.No.81/2 sold to Munivenkatamma. The DW.1 further deposed that he and defendants No.2 & 3 sold Southern portion of Sy.No.81/2 measuring 30 Guntas in favour of Padmavathi MadiReddy and retained 1 acre 13 Guntas including 6 guntas of kharab, which is northern portion of Sy.No.81/2. The defendants No.1 to 3 are agriculturist doing agriculture for their livelihood in the said land retained by them and in order to meet their urgent family necessities they have sold said land measuring 1 acre 13 guntas including 6 guntas kharab in Sy.No.81/2 of Horamavu Village in favour of defendant No.5 Y.N. Kondareddy in the year 2004, due to mistake crypt in mentioning on boundaries under said sale deed, 24 Judgment O.S.No.17127/2004 they have executed rectification deed immediately. After the purchase Y.N.KondaReddy became absolute owner in possession of said land and said land is bounded by East: land of Baluki Dasappa, West: Jayanthi Village, North:land of Yamanna, South:land of Padamavathi Madireddy. Further the said land sub phoded as Sy.No.81/3 measuring 1 acre 7 Guntas, the mutation and RTC entered in the name of defendant No.5. The defendants No.1 to 3 apart from selling said land Y.N. Konda Reddy never sold to anybody and never parted its possession till they sold in favour of Y.N. Konda Reddy. The defendants No.1 to 3 are not benefited with education and not acquainted with worldly affairs, they know only put signature in Kannada not knowing reading and writing any of the languages. That false allegation of plaintiffs that they have sold site No.41 in respect of alleged Katha No.135/4 property in favour of T.V.K Krishna Kuari and in turn she sold alleged site No.41 alleged house list Katha No.122/2 measuring 36.6 X 40 feet in favour of plaintiff during the year 1991 is false. They have no such Katha property or sites at the alleged Horamavu village limits, the allegations of 25 Judgment O.S.No.17127/2004 plaintiffs that layout of sites formed in their land in Sy.No.81/2 of Horamavu village out of 1 acre 24 Guntas is false, after alienation they have not possessed 1 acre 24 Guntas either to form alleged layout of sites, in fact they never approached Horamavu village Panchayath for obtaining Katha in their names, alleged Katha bearing No.134/4 at Horamavu village, K.R.Puram Hobli are bogus, fictitious Katha number, fraudulently concocted and created by plaintiffs to suit their false convenience and attribute claims in their alienated agricultural land in Sy.No.81/2.
23. The DW.1 further deposed evidence that plaintiffs have concocted and got up documents styled as sale deeds in respect of non existed property by misusing bogus and concocted documents, plaintiffs attempted to gain, interest in their alienated property belongs to Y.N.Konda Reddy by imaginary cause filed the above suit. That till they sold land measuring 1 acre 7 Guntas in Sy.No.81/2 in favour of Y.N.Konda Reddy, said land continued to be revenue assessed land entered in RTC records maintained by revenue department and continued to be 26 Judgment O.S.No.17127/2004 agricultural cultivable lands, they never obtained any conversion for non agricultural residential purposes and never formed any illegal layout in the said land, They have not sold any piece or inch to anybody. The alleged sale deed of plaintiffs not reflect Survey number in which the alleged sites are formed, That after alienating thier land in Sy.No.81/2 measuring 1 acre 7 Guntas in favour of Y.N. Konda Reddy, they have no interest in the said land, the alleged cause of action is false and imaginary. The DW.1 prays to dismiss the suit of plaintiff with exemplary cost.
24. The defendant No.5 Y.N.Kondareddy S/o Narayana Reddy filed his affidavit in lieu of examination in chief as DW.2 and deposed evidence that plaintiff filed above suit against the defendants for the reliefs of permanent injunction in respect of residential premises bearing site No.41 formed in northern portion of land in Sy.No.81/2 of Horamavu Village, in house list katha No.122/2, K.R.Puram Hobli, Bangalore South Taluk measuring East to West : 30 feet and North to South : 40 with boundaries i.e., the suit schedule property. The suit filed by plaintiff for relief of permanent injunction in respect of the 27 Judgment O.S.No.17127/2004 alleged non existed suit schedule property is not sustainable either in law or on facts and as such suit has to be dismissed.
That without seeking declaratory relief of title mere suit for bare injunction is not maintainable in law and hence plaintiff is not entitle for relief of permanent injunction. He is bonafide purchaser of agricultural land bearing old Sy.No.81/2 and New No.81/3 measuring 1 acre 7 guntas of Horamavu village for valuable consideration from defendants No.1 to 3 after enquiry and verifying title of his vendor and comes to conclusion that vendors having marketable title to alienate said property and purchased under registered sale deed on 01/03/2004 for valuable consideration. Therefore his right, title interest and possession have to be protected under law. The description of plaint schedule property extent and boundaries mentioned in plaint schedule is not at all correct. The boundaries and extent and property as stated in plaint and schedule as not at all pertaining to old Sy.No.81/2 and New No.81/3 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk and as such suit has to be dismissed. The plaintiff is making attempts to lay claim in 28 Judgment O.S.No.17127/2004 portion of land measuring to an extent of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village K.R.Puram Hobli, Bangalore East Taluk under the guise of having purchased site bearing house list number under registered sale deed. The suit schedule property is nothing to do with land bearing old Sy.No.81/2 and New Sy.No.81/3 of Horamavu village, and alleged description of plaint schedule, its boundaries and sale deed referred to in plaint is in respect of property situated in gramatana of Horamavu and not at all pertaining to agricultural land.
25. The DW.2 further deposed evidence that there cannot be site bearing House list number in agricultural land. The house list number indicates that property is Gramatana property. However plaintiff is trying to lay to claim for portion in land bearing an extent of 1 acre 7 guntas in old survey No.81/2 of Horamavu village, K.R.Puram Hobli, Bangalore South Taluk, and presently Bangalore East Taluk and contentions taken by plaintiff in pleadings and in evidence affidavit, documents relayed upon by him are different to each other and therefore plaintiff is not entitle for any relief as sought for in plaint 29 Judgment O.S.No.17127/2004 claiming suit property in portion of land in Sy.No.81/2 of Horamavu village. The plaintiff has to establish that there is site bearing house list No. with its extent and boundaries as mentioned in sale deed and the said site is within Gramatana limits and then only plaintiff can claim right over suit schedule property. The plaintiff failed to establish property mentioned in sale deed and also in plaint schedule and as such suit has to be dismissed. The plaintiff is not having title and possession to property described in plaint schedule and as such plaintiff cannot value site at Rs.1000/- under section 26(C) of KCF and SV Act 1956. The plaintiff has to value suit on the market value of the suit property. The vendor of plaintiff has no manner of right, title interest or possession over suit schedule property and as such plaintiff does not derive any right, title or possession. That documents produced by plaintiff are all concocted, created and got up documents. The documents are not at all existence in Horamavu village panchayath at all. The vendors of plaintiff also does not find place in Horamavu village Panchayath. On the strength of created and concocted documents false suit came 30 Judgment O.S.No.17127/2004 to be filed against him on non existed suit schedule property. There is no cause of action for the suit and plaintiff is not entitle for permanent injunction for want of cause of action. That the defendants No. 1 to 3 are title holders and in possession and enjoyment of land measuring to an extent of 3 acres 17 guntas in Sy.No.81/2 of Horamavu Vilalge, K.R Puram Hobli, Bengalore South Taluk and they have sold to an extent of 1 acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour defendant No.4/ Padmavathi Madireddy and they have retained land measuring 1 acre 7 guntas and they were in possession and enjoyment of 1 acre 7 guntas of land as absolute owners. The defendants No.1 to 3 and their children have sold said 1 acre 7 guntas in Sy.No.81/2 of Horamvu Village in his favour under registered sale deed on 01/03/2004 for valuable consideration. The vendors have noticed that there is some discrepancy in boundaries and therefore they have executed rectification deed on 29/03/2004. That ever since the date of purchase she has been in possession and enjoyment of 1 acre 7 guntas of land in Sy.No.81/2 of Horamavu Village by exercising 31 Judgment O.S.No.17127/2004 his right of ownership and possession. That on the basis of his lawful ownership and possession the concerned revenue authorities have lawfully effected mutation in M.R No.48/2003- 2004 and his name has been entered in RTC and pahanies in respect of said property. Since the date of purchase he is paying Kandayam in respect of said property. That after purchase he approached survey department to measure and fixed boundaries in respect of Sy.No.81/2 measuring 1 acre 7 Guntas of Horamavu Village. The survey authorities surveyed and fixed boundaries in respect of said property to an extent of 1 acre 7 Guntas and assigned with new Sy.No.81/3. That aforesaid extent of 1 acre 7 Guntas in New Sy.No.81/3 (old Sy.No.81/2 of Horamavu Village has not been converted for non agricultural residential purposes and it remains as on agricultural land. Further his vendors have not at all formed any sites in said land and sold it to any persons including plaintiff at any point of time and remained as an agricultural land and revenue authorities lawfully entered his name in the revenue documents. 32
Judgment O.S.No.17127/2004
26. The DW.2 further deposed that averments made in para No.2 of the plaint that under registered sale dated 20/02/2002 the site No.41 alleged formed in Sy.No.81/2 of Horamavu village has been purchased by plaintiff from her vendor T.V.K. Krishnakumari and her vendor purchased from defendants No.1 to 3 is false. The alleged layout plan and documents of sale deeds and GPA are got up, concocted and created for the purpose of filing this suit. The DW.2 denied the allegations of plaint paras No.3 to 13 are false. The documents upon which the plaintiff is relaying in support of his title and possession of schedule property do not in any manner relayed to land in Sy.No.81/3 (Old sy.No.81/2) of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk and as such plaintiff can't claim any right or possession over any portion of land in Sy.No.81/3 (Old Sy.No.81/2) of Horamavu village, K.R.Puram Hobli.
27. The DW.2 further deposed evidence that defendants No.1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu village in favour of Padmavathi Madireddy. The defendants No.1 to 3 have not entered into any other transactions 33 Judgment O.S.No.17127/2004 with defendant No.4 except sale deed referred to above which has been executed by defendants No.1 to 3. The defendants No.1 to 3 have not at all executed GPA in favour of defendant No.4. No power has been confirmed upon defendant No.4 under alleged GPA. After sale by defendants No.1 to 3 in his favour, defendants No.1 to 3 did not own and possess any land. The alleged layout plan is got up and concocted one. In the sale deed as well as schedule given in plaint there is no mention that suit schedule property is portion of Sy.No.81/2 of Horamavu village. There are no records to show that suit schedule property comes within jurisdiction of Horamavu village panchayath. The suit schedule property is not at all in existence. The documents produced are all village panchayath records are not at all pertaining to Sy.No.81/2 or 81/3 of Horamavu village, he applied before Right to information officer under the RTI Act to furnish the documents. They have sent the information stating that the documents applied by him are not at all available in the said offices. The plaintiff trespassed into the portion of land bearing (Old Sy.No.81/2) measuring 1 acre 7 guntas and New 34 Judgment O.S.No.17127/2004 No.81/3 of Horamavu village and got constructed the building. In that regard he filed suit in OS.No.3483/2005 on the file of this court for the reliefs of declaration, mandatory injunction, possession and other reliefs. The said suit is filed not only against the plaintiffs but also others. The said suit is pending. The DW.2 prays to dismiss the suit with exemplary costs. In support of oral evidence DW.1 marked ExD1 to ExD31.
28. The defendant No.5 counsel while arguing relied upon the decisions reported in 1) ILR 2005 KAR 884 2) AIR 1979 CaL 50, 3) AIR 1999 SC 1441, 4) AIR 1962 Madras 149, 5) ILR 2010 KAR 2996, 6) ILR 1998 KAR 1, 7) AIR 1990 Orissa 124,
8) ILR 1988 KAR 215, 9) ILR 2007 KAR 339. The relevant citations are discussed below.
ILR 2005 KAR 884 T.L.Nagendra Babu V/s Manohar Rao Pawar Suit for Declaration and Injunction requirement of evidence - Duty of the Court - Held - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the 35 Judgment O.S.No.17127/2004 identification of the property, no declaration and injunction can be granted.
ILR 2007 KAR 339 Aralappa V/s Jagannath and others Specific Relief Act 1963-Section 34-Declaration of status or right-Discretion of Court-Held, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property -When the plaintiff is not in possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable- Appeals are dismissed.
29. The burden is on plaintiff to prove that he is absolute owner and in lawful possession and enjoyment of suit property as on the date of suit and defendant caused interference to her 36 Judgment O.S.No.17127/2004 possession and enjoyment over the suit schedule property. The defendants No.1 to 3 were original owners of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, during the year 1991 they formed layout of sites in northern portion of their land in Sy.No.81/2 to an extent of 1 acres 24 Guntas with total number of 47 sites and got House list Khatha allotted to sites and offered to sell to intending purchasers through their power of Attorney holder defendant No.4. The schedule site No.41 was allotted with house list No.135/4. She has purchased site No.41 in schedule property from her vendor under registered sale deed on 01/08/2001 and since then she is in peaceful possession and enjoyment of suit property. She has constructed house in schedule site as per the plan and she is residing there along with her family since the year 2003. That for the past thirteen years there was no agricultural operation on the land in Sy.No.81/2 where layout is formed and fully developed residential layout, Horamavu Panchayat Authority has approved the residential layout by issuing House list numbers and House building licence 37 Judgment O.S.No.17127/2004 to the site owners. Now the defendants are causing obstruction to his possession and enjoyment over the suit schedule property.
30. The plaintiff examined as PW.1 as discussed above. In support of oral evidence PW.1 marked ExP1 to ExP8. The ExP1 is encumbrance certificate for the period from 01/06/1989 to 31/03/2004, wherein there are entries regarding sale of Site No.41, khatha No.135/4 of Horamavu village by defendants No.1 to 3 through their GPA Sripadmavathi in favour of vendor of plaintiff T.V.Krishnakumari and then from said vendor to plaintiff. The ExP2 is demand register of site No.41 for the year 2004-2005, wherein name of plaintiff is appeared as owner and occupant of the property. The ExP3 is receipt and ExP4 is sanctioned plan issued by village Panchayath, Horamavu village for construction of building in Site No.41 of Horamavu village, K.R.Puram Hobli to present plaintiff. The ExP5 and ExP6 are photographs marked as they belong to suit schedule property. The ExP7 is copy of layout map. The ExP8 is complaint copy filed by the plaintiff to the Sub-Inspector of Ramamurthy Nagar 38 Judgment O.S.No.17127/2004 police station alleging harassment to the residents by some miscreants.
31. On the contrary the defendant No.1 examined as DW.1 as discussed above and he denied the allegation of the plaintiff that plaintiff is the owner of the suit schedule property and defendant No.1 contention that there is no existence of suit schedule property, description of the property boundaries measurement mentioned in plaint schedule is imaginary. The defendant No.1 contention that land bearing Sy.No.81/2 of Horamavu village, K.R. Puram Hobli, Bengaluru South taluk (presently Bengaluru East Taluk) totally measuring 3 acres 17 guntas belongs to his grandmother Venkatamma and she was executed Registered Will dated 13/06/1988 in his favour and his two brothers Nagaraja, Jayaram and sister Pullamma. His grandmother sold 1 acre 20 guntas in favour of Munivenkatamma on the southern portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title and possession of said portion as per the last Will executed in their favour and they became absolute owners of the land measuring 1 acre 37 guntas including kharab of 6 39 Judgment O.S.No.17127/2004 guntas in the said survey number, which is bounded by East:
land of Baluki Dasappa, West: Jayanthi Gram, North: land of Yamanna and South: the remaining portion in Sy.No.81/2 sold to Munivenkatamma. The defendants No.1 to 3 are agriculturists and for their livelihood they have sold 1 acre 13 guntas including 6 guntas of kharab in Sy.No.81/2 of Horamavu village in favour of defendant No.5 Y.N. Kondareddy in the year 2004, due to mistake crypt in mentioning in boundaries under the sale deed, they have executed rectification deed immediately, after purchase Y.N. Kondareddy became the absolute owner in possession of land sold by them and same was bounded by East:
Land of Baluki Dasappa, West: Jayanthi Gram, North: Land of Yamanna and South: land of Padmavahi Madireddy. In pursuance of the registered sale deed in favour of Y.N. Kondareddy continued in possession of the said land and afterwards said land was sub phoded as Sy.No.81/3 and said Kondareddy is in possession and enjoyment of the said land and his name is appearing in the revenue records i.e. RTC records maintained by the revenue department.40
Judgment O.S.No.17127/2004
32. The defendant No.5 said Y.N. Kondareddy examined as DW.1 and he has also deposed the evidence as contended by defendant No.1 as discussed above as he purchased land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village from defendants No.1 to 3 afterwards it is given new number as Sy.No.81/3 of Horamavu village. The defendant No.5 denied ownership, title and possession of plaintiff over suit schedule property and also submits there is no existence of suit schedule property within the boundaries as contended by plaintiff. The defendant No.5 contention that plaintiff trespassed into possession of land bearing Sy.No.81/2 measuring 1 acre 7 guntas and new Sy.No.81/3 of Horamavu and got constructed building and in this regard he filed the suit in OS.No.3483/2005 on the file of this court for the relief of declaration and mandatory injunction, possession and other reliefs.
33. The defendant No.5/DW.2 in support of oral evidence marked ExD1 to ExD31. The ExD1 is certified copy of plaint and ExD2 is certified copy of written statement in OS.No.3483/2005 which is filed by present defendant No.5 Y.N. 41 Judgment O.S.No.17127/2004 Kondareddy against defendant No.1 Narayanappa and others.
The ExD3 is certified copy of plaint and ExD4 is certified copy of written statement in OS.No.16322/2005, which is filed by Renuka Vijayakumar & others against Narayanappa and others. The ExD5 is certified copy of sale deed dated 01/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 in respect of portion of agricultural dry land bearing Sy.No.81/2 measuring 1 Acre 7 Guntas + 6 Guntas Kharab situated at Horamavu village, K.R.Puram Hobli, Bangalore bounded by East, West, South:
Baluki Dasappa's land, North: Padmavati's land. The ExD6 is certified copy of rectification deed dated:29/03/2004 executedby defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 rectifying about boundaries mentioned in sale deed dated.01/03/2003 towards West: Jayanti Grama, Gomala land instead of land of Baluki Dasappa, towards North:Vemanna's land instead of land of Padmavati's land, towards South: Padmavathi's land instead of Baluki Dasappa's land. The ExD7 is Mutation Register No.48 regarding change of 42 Judgment O.S.No.17127/2004 khatha of Sy.No.81/2 measuring from 1 acre 07 guntas from defendant No.1 Narayanappa in favour of defendant No.5 Y.N. Konda Reddy. The ExD8 is certified copy of record of right of land bearing Sy.No.81/2 to the extent of 1 Acres 7 Guntas of Horamavu village in the name of defendant No.5. The ExD9 is certified copy of Atlas map of Sy.No.81/2, ExD10 is certified copy of Hissa Tippani of Sy.No.81/2. The ExD11 is certified copy of form No.5 relating to Sy.No.81/2 of Horamavu village.
The ExD12 is certified copy of Karnataka revision settlement Aakaar bandh relating to Sy.No.81/2. In ExD13 four certified copies of record of rights relating to Sy.No.81/2 of Horamavu village are marked which are standing in the name of defendant No.5 Y.N.Kondareddy. The ExD14 is certified copy of encumbrance certificate for the period from 01/06/1989 to 06/06/2004, wherein there is entry regarding sale transaction of 1A-07Gs + 6 Guntas Kharab land between defendants No.1 to 3 to defendant No.5.
34. The ExD15 is certified copy of endorsement issued by Horamavu Grama Panchayath on 15/12/2004 mentioning that 43 Judgment O.S.No.17127/2004 relating to khatha No.122/1, 122/2, 129/3, 135/4 of Sy.No.81/2 and 81/3 there are no records standing in the name of Narayanappa, Nagaraju and Jayarama in their records. The ExD16 is typed in evidence and marked as certified copy of the sale deed dated 15/04/1972, but matter in the document is not properly seen and cannot read the document. Hence the said document is not discussed. In ExD17 twelve certified copies of endorsements issued by BBMP are marked as ExD17(1) to ExD17(12) those are issued by BBMP, Bengaluru on the application filed by Y.N. Kondareddy under RTI Act relating to information called in respect of house list Nos.122/1, 122/2, 135/4, 129/2, 129/3, site Nos.28, 29, 27, 26, 21, 41, 38, 39, 45, 6, 7, 36, 44, 45 and 42 and the BBMP informed that relating to said sites in Sy.No.81/2, New No.81/3 of Hormavu village, there are no records in their office relating to layout plan, sanctioned plan in their office and for construction of building in Site No.41, HLK-135/4 sanction paln, and permission not given either by Panchayat or by BBMP to S. Tangarani W/o Siddalingayya for construction is made in the said property. In ExD18 three 44 Judgment O.S.No.17127/2004 mutation registers are marked as ExD18 (1) to ExD18 (3) relating to transfer of Sy.No.81/2 measuring 1 acre 7 guntas from Narayanappa to Y.N. Kondareddy. The ExD19 is certified copy of Atlas relating to Sy.No.81/2, which is also not in readable condition. The ExD20 is certified copy of endorsement issued by RamamurthyNagar police station on the application of Y.N. Konda Reddy. The ExD21 is certified copy of information furnished by the Sub-Registrar, Banaswadi to Y.N.Kondareddy called under RTI Act. The ExD22 is the certified copy of endorsement issued by the Deputy Commissioner, Bengaluru to Y.N. Kondareddy to the information called by Y.N.Kondareddy about conversion of land bearing Sy.No.81/2 of Horamavu village for non-agricultural purpose and Deputy Commission furnished information that there are no records in their office relating to the information called by Y.N. Kondareddy.
35. The ExD23 is certified copy of endorsement issued by Tahsildar, Bengaluru East Taluk informing that relating to the land bearing Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village, K.R. Puram hobli, Bengaluru there is no order of 45 Judgment O.S.No.17127/2004 conversion for non agriculture. The ExD24(1) and ExD24(2) are certified copies of tax paid receipts. The ExD25 is certified copy of application given to the Tahsildar by Y.N.Kondareddy for surveying the land and making phode in Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village. The ExD26 certified copy of sale deed dated:17/07/1991 discloses that Narayanappa S/o late Chikka Abbaiah, Nagaraj S/o late Chikka Abbaiah and Jayaram S/o late Chikka Abbaiah i.e., defendants No.1 to 3 have sold 30 Gunatas in Sy.No.81/2 of Hormavu village, K.R.Puram Hobli, Bangalore South Taluk in favour of defendant No.4 Madireddy Sripadmavathi W/o Jagadish. The ExD27 is certified copy of order sheet in OS.No.1208/04 of Prl. Civil Judge (Jr.Dn) Bengaluru Rural filed by Lazarus K against Kondareddy Y.N. and ExD28 is certified copy of order on I.A.1 in the said suit. The ExD29 is certified copy of survey sketch and ExD30 is certified copy of mahazar relating to Sy.No.81/3 of Horamavu village. The ExD31 is certified copy of endorsement issued by Assistant Commissioner, Bengaluru North taluk to Y.N. Kondareddy informing about non-filing of any case for purchase 46 Judgment O.S.No.17127/2004 of land in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village in violation of Section 79 (a) and (b) of Karnataka Land Reforms Act.
36. The contention of plaintiff that she has purchased suit schedule property Site No.41 from Krishnakumari on 01/08/2021 and her vendor purchased suit property from defendants No.1 to 3 through their GPA holder defendant No.4 under registered sale deed on 13/01/1992. The plaintiff has produced and marked ExP1 to ExP8, out of those documents The ExP1 is encumbrance certificate for the period from 01/06/1989 to 31/03/2004, wherein there are entries regarding sale of Site No.41, khatha No.122/2 of Horamavu villlage by defendants No.1 to 3 in favour of vendor of plaintiff T.V.Krishnakumari and then from said vendor to plaintiff. The ExP2 DCB register, ExP3 is tax paid receipt, ExP4 is sanctioned plan. ExP7 layout plan, which is not signed and sealed by concerned authority. The plaintiff has not produced sale deed regarding purchase of suit property by her from T.V. Krishnakurmari and sale deed of her vendor purchased suit 47 Judgment O.S.No.17127/2004 property from defendants No.1 to 3 through their GPA Sripadmavathi. Further the plaintiff has not produced the katha extract and katha certificate issued by BBMP to show that his name is appeared in the revenue records of BBMP. Further as per plaintiff the defendant No.1 to 3 are owners of Sy.No.81/2 of Horamavu village measuring to an extent of 1 acre 24 guntas of Horamavu village and they have formed 47 sites in said land and offer to sell said sites to the intending purchasers to their Power of Attorney holder i.e. defendant No.4. Accordingly her vendor purchased suit schedule property from General Power of Attorney of defendants No.1 to 3 by name Madireddy Sripadmavathi/defendant No.4 on 13/01/1992 and in turn she purchased suit property from his vendor on 01/08/2001.
37. The defendant No.1 examined as DW.1 denied execution of Power of Attorney in favour of defendant No.4 Madireddy Sripadmavathy and also denied regarding formation of 47 sites in 1 Acre 24 guntas in Sy.No.81/2 of Horamavu village and sold sites to different purchasers. The defendant No.1 to 3 contention 48 Judgment O.S.No.17127/2004 that they have sold 1 acre 7 guntas + 6 guntas pot kharab land to the defendant No.5 Y.N. Kondareddy on 01/03/2004.
38. The defendant No.5 examined as DW.2 deposed that he has purchased the land 1 acre 7 guntas + 6 Guntas pot kharab land in Sy.No.81/2 of Horamavu village from defendant No.1 to 3 Narayanappa and others and since then he is possession and enjoyment of said agricultural land. The defendant No.5 denied regarding formation of 47 sites in Sy.No.82/1 measuring 1 Acre 24 Guntas of Hormavu. In support of his oral contention the DW.2 marked ExD5 certified copy of sale deed dated 01/03/2004 regarding purchase of 1 Acre 13 Gunta in Sy.No.81/2 of Horamavu village by him from defendants No.1 to 3 and also produced rectification deed about rectification of boundaries towards west, north, south in sale deed as per ExD6. Further as per ExD7 mutation register katha of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village transferred in the name of defendant No.5 from defendants No.1 to 3. Further as per ExD8 name of defendant No.5 is appeared in the record of rights of land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu 49 Judgment O.S.No.17127/2004 village for the year 2004-05. The DW.2 has marked ExD9 Atlas, ExD10 Tippani, ExD11 form No.5, ExD12 Karnataka Revision Settlement Akaar Bandh relating to Sy.No.81/2 of Horamavu village and afterwards new number was given as Sy.No.81/3. Further the ExD13 (1) to ExD13(4) are records of rights of the Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village in the year 2004-2005 till 2009-2010 discloses name of defendant No.5 Y.N. Kondareddy as owner and cultivator of said land. Under the circumstances the burden is on plaintiff to prove that in the said land bearing Sy.No.81/2 to an extent of 1 acre 24 guntas of Horamavu village the defendants No.1 to 3 formed 47 sites and sold to different purchasers through their GPA holder defendant No.4. But to prove said fact the plaintiff has not produced conversion order copy of said land measuring 1 acre 24 guntas in Sy.No.81/2 of Horamavu village for non- agricultural purpose issued by the competent authority along with layout plan, sketch of said land and also house list numbers given to said 47 sites by concerned revenue authority. The plaintiff contended that to the suit property house list katha 50 Judgment O.S.No.17127/2004 No.135/4 of Horamavu village was given. But to prove said fact the plaintiff has not produced any documents. Further the plaintiff/PW.1 in his cross examination deposed evidence that "I do not know the property belonging to defendant No.1 to 3. I do not know to whom defendants 1 to 3 to sold their properties. I have not produced sale deed. Earlier Krishnakumari was to known to me. 1St time I saw her at the time of she executing sale deed to me. I do not know how Krishnakumari got the property. She has not informed me regarding from whom she has purchased it. I have taken the title documents of Krishnakumari. Khata number was 135/4. It was in the name of Krishnakumari. I have varified it in panchayat office. I have not taken records from gramapanchayat. I do not know in which survey number khata number 135/4 situates. I have seen documents of Sy.No.81/2 of Horamavu. It was in the name of Krishnakumari.
39. The PW.1 further deposed evidence that "I do not know that Sy.No.81/2 is 3 acre 17 guntas belonging to defendants 51 Judgment O.S.No.17127/2004 No.1 to 3. I do not know that defendant 1 to 3 sold 1 acre 20 gunta in Sy.No.81/2 in favour of Munivenkatamma. I do not know who is Madireddy Padmavati. I do not know where is her property. I do not know that defendants No.1 to 3 have sold 1 acre 30 Guntas in favour of M Padmavati. I do not know that defendant 1 to 3 retained 1 acre 7 gunta and sold it to defendant No.5. I do not know that 5 th defendant is in possession of 1 acre 7 gunta in Sy.No.81/2. I have not stated anything about Madireddy Padmavati in my plaint and evidence". The PW.1 further deposed evidence that "I do not know in which property defendants No.1 to 3 made sites. I do not know in which property sites No.1 to 47 are made. My site No.41. I have not verified survey records of site No.41. Therefore the evidence of PW.1 discloses that there she is not aware in which survey number suit property is formed and she has not verified panchayat records. Where as in the plaint he contended that in Sy.No.81/2 of Horamavu village suit property is formed. To prove said contention the plaintiff has not produced any documents. Further PW.1 deposed that she don't 52 Judgment O.S.No.17127/2004 know that in 1 acre 07 guntas of Sy.No.81/2 defendant No.5 is in possession. Further the plaintiff has not produced the title documents of her vendor and her vendor's vendor and also not produced her sale deed regarding purchase of suit property from her vendor. Further plaintiff has not produced khata extract and khata certificate of suit property issued by BBMP standing in her name. Hence the documents produced by plaintiff DCB register sanctioned plan and encumbrance certificate are not sufficient to come to conclusion that the plaintiff is owner and in lawful possession of the suit schedule property as on date of suit. The defendants No.1 to 3 have denied the formation of sites in Sy.No.81/2 of Horamavu village and also title of the plaintiff over the suit schedule property. Under the circumstances the suit of the plaintiff for bare injunction is not maintainable.
40. The DW 2 marked ExD17(1) endorsement discloses that house list No.122/1, 122/2, 135/4, 129/2, 129/3 relating to Sy.No.81/2 New Sy.81/3 of Horamavu village, the documents verified in office, but the said documents are not found in the revenue records in the name of Naryanapappa, Nagaraju and 53 Judgment O.S.No.17127/2004 Jayaram. Further ExD17(2) endorsement discloses that no sanction plan or layout plan relating to Site No.20, 29, 27, 28, 26, 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45, 42 of Sy.No.81/2 new Sy.No.81/3 of Horamavu village are found in their records, and such documents are not in the name of Nagaraja, Narayanappa and Jayarama in their office records. In ExD17(3) the defendant No.5 called information regarding furnishing copies of khatas of Sites No.20, 29, 28, 27, 26, 37, 21, 41, 38, 4, 5, 6, 7, 36, 44 and 45, 42, 23 in katha Nos.122/2, 122/1, 135/4 of Horamavu village and the Revenue Officer furnished the information that Namuna No.9 and 10 of the said properties are not in the name of Nagaraju, Narayanappa and Jayarama. Further the ExD23 is endorsement issued by the Tahsildar, Bengaluru East Taluk mentioning in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village there is no conversion of land. Therefore from these exhibits as discussed above it is clear that the land bearing Sy.No.81/2 measuring an extent of 1 acre 07 guntas of Horamavu village not converted for agricultural purpose and no sites were formed in the said land. Further records of rights for 54 Judgment O.S.No.17127/2004 the years 2004-2005 till 2009-2010 marked by DW.2 as ExD8, ExD13(1) to ExD13(4) discloses land measuring 1 acre 7 guntas in Sy.No.81/2 of Horamavu village in the name of defendant No.5 Y.N. Kondareddy is an agricultural land, hence at the time of filing suit by plaintiff in the year 2004 said land is agricultural land. That in the citation reported in ILR 2005 Karnataka 884 relied by the defendant No.5 counsel it is held that "Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted." Further in the another citation reported in ILR 2007 Karnataka 339 relied by the defendant No.5 counsel it is held that "In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery 55 Judgment O.S.No.17127/2004 of possession of the property -When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable- Court below was justified in dismissing the suit as not maintainable-Appeals are dismissed". The both citation discussed above applies to the present case in hand, as in the present suit the plaintiff failed to prove her lawful ownership possession and enjoyment over the suit schedule property as on date of suit, hence question of interference by the defendants in the said property does not arise. Hence plaintiff is not entitle for relief of permanent injunction against the defendants. The plaintiff failed to prove Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative.
41. Issue No.4:
In view of above discussion I proceed to following :ORDER:56
Judgment O.S.No.17127/2004
The suit of the plaintiff is here by dismissed
with costs.
Draw decree accordingly.
(Dictated to the stenographer, typed by him. Then corrected online and taken print out, corrected, signed and pronounced by me in the open court on this 22nd day of September 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: S. Tangarani W/o Sidda Gangaiah DOCUMENTS MARKED FOR THE PLAINTIFF ExP1: Encumbrance Certificate ExP2: Demand Register Extract ExP3: Tax paid receipt ExP4: Sanction plan ExP5 & 6: Photographs ExP7: Copy of layout plan ExP8: Copy of complaint WITNESSES EXAMINED FOR THE DEFENDANTS DW.1: Narayanappa S/o Venkataswamappa @ Chikkabbaiah 57 Judgment O.S.No.17127/2004 DW.2: Y.N.Kondareddy S/o Narayana Reddy DOCUMENTS MARKED FOR THE DEFENDANTS ExD1: Certified copy of plaint in OS No.3483/2005 ExD2: Certified copy of W.S in OS No.3483/2005 ExD3: Certified copy of plaint in OS No.16322/2005 ExD4: Certified copy of W.S in OS No.16322/2005 ExD5: Certified copy of sale deed dated 01/03/2004 ExD6: Certified copy of Rectification deed ExD7: Certified copy of Mutation, ExD8: Certified copy of RTC ExD9: Certified copy of Atlas copy ExD10: Certified copy of Hissa Tippani copy ExD11: Certified copy of Form No.5 ExD12: Certified copy of the Karnataka Revision Settlement Akhar Bandh ExD13(1) to ExD13(4): Certified copies of RTC ExD14: Certified copy of Encumbrance Certificate ExD15: Certified copy of Endorsement by Horamavu Grama Panchayath ExD16: Certified copy of Sale deed dated 15/04/1972 ExD17(1) to (16): Certified copy of endorsements ExD18(1) to (3): Certified copy of mutation Register extracts ExD19: Certified copy of Atlas copy ExD20: Certified copy of endorsement 58 Judgment O.S.No.17127/2004 ExD21: Certified copy of RTI information by Sub-Registrar, Banaswadi ExD22: Certified copy of Endorsement issued by Deputy Commissioner, ExD23: Certified copy of Endorsement by Tahasildar ExD24(1) to ExD24(2): Certified copies tax paid receipts ExD25: Certified copy of Application given to Tahasildar ExD26: Certified copy of Sale deed dated 17/07/1991 ExD27: Certified copy of Order sheet in O.S.No.1208/2004 ExD28: Certified copy of Order on IA in OS No.1208/2004 ExD29: Certified copy of Survey Sketch ExD30: Certified copy of Mahazar ExD31: Certified copy of endorsement by Assistant Commissioner, Bangalore North, XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.