Bangalore District Court
Lakshmi A vs Madaiah on 29 November, 2024
1 O.S.No.4757/2017
KABC010172072017
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XLIV ADDL. CITY CIVIL JUDGE,
AT BENGALURU (CCH-45)
Dated this the 29th day of November, 2024
PRESENT: SRI. DODDEGOWDA.K, B.A.,L.L.B.,
XLIV ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU.
O.S.No.4757/2017
PLAINTIFF : Smt. A. Lakshmi
aged about 53 years,
W/o Sri.A. Anjanappa,
R/at No.48/1, III rd Cross,
Srinivasa Colony, Arehalli
Subramamyapura Post,
Uttarahalli Hobli,
Bengaluru-560061.
(By Sri.P.K., Advocate)
DEFENDANTS : 1. Sri. Madaiah
aged about 75 years
S/o Late Putte Gowda,
2. Smt. Devamma
2 O.S.No.4757/2017
aged about 62 years
W/o Sri. Madaiah
3. Sri.M. Chandra
aged about 44 years,
S/o Sri. Madaiah
4. Sri. M. Seena
aged about 42 years,
S/o Sri. Madaiah
5. Sri.M. Nagesh
aged about 40 years
S/o Sri. Madiah,
All are residing at No.40,
Srinivasa colony
Arehalli Village,
Uttarahalli Hobli
Subramanayapura Post,
Bengaluru-560061.
D.1,2,4, 5- N.S.R., Advocate
Date of Institution of the : 13-07-2017
suit
Nature of the suit : Injunction suit
Date of commencement of : 11-07-2019
recording of the evidence
Date on which the : 29-11-2024
Judgment was pronounced
Total Duration Years Months Days
07 04 16
(DODDEGOWDA.K)
XLIV ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
3 O.S.No.4757/2017
JUDGMENT
This suit is filed for the relief of permanent injunction against the defendant in respect of the suit schedule property.
2. The case of the plaintiff in nutshell is that, the Plaintiff is the co-owner and in possession of portion of Property bearing gramatana, Kaneshmari No. 22, situated at Arehalli Village, Uttarahalli Hobli, Bengaluru South Taluk, presently comes under the limits of BBMP, Bengaluru measuring East to West: 40 feet and North to South: 18 feet 1 inches, in all totally measuring 724 square feet, together with watchman shed and the description of the property is more fully described in the schedule and hereinafter called "Schedule Property". The Plaintiff and her cousin brother Late Puttaraju got absolute right, title, interest as well as possession over the schedule property under a registered Release Deed dated: 17/02/2016 executed by Smt. Savithramma D/o. Late Muni Thimmaiah and the said Release deed has been duly registered in the office of Sub-Registrar, Basavanagudi.
4 O.S.No.4757/2017
3. The schedule property comes within the administrative limits of BBMP, Bengaluru and accordingly the Plaintiff and Sri. Puttaraju approached the BBMP for transfer of katha in to their names. The BBMP has issued Property register extract in the joint names of Plaintiff and the said Sri Putta Raju. Earlier the suit schedule property was a vacant land and after acquisition of the property by the plaintiff and his cousin brother Late. Putta Raju , they have constructed watchman shed in a portion of the schedule property. On and after the Release deed and obtaining Katha from the BBMP, the said Puttaraju died on 27/06/2016, accordingly the Plaintiff alone continued to be in possession of the schedule property.
4. It is submitted that, originally the portion of Property bearing Gramatana Kaneshmari No.22 of Arehalli Village Uttarahalli Hobli, Bengaluru South Taluk measures 30 ft. X40 ft., which was owned and possessed by Sri. Muni Thimmaih. The said Sri. Muni Thimmaiah enjoyed the said property as absolute owner and then sold part of the said property measuring to an extent of East to West: 17 feet 5 O.S.No.4757/2017 and North and South: 28-0 feet totally ad-measuring 476 square feet in favour of Defendant No.1 under a registered Sale Deed dated: 21/08/1975.
5. It is submitted that, Sri. Muni Thimmaiah sold only an extent of 476 square feet in favour of defendant No.1 under a registered sale deed dated 21/08/1975. On the very same day Sri. Madaiah i.e., defendant No.1 purchased another piece of land in Gramatana Kaneshmari No.22 of Arehalli Village, measuring to an extent of East to West: 33 feet and North to South: 7 feet, totally ad- measuring 231 square feet from Sri. Venkataswamappa under a registered Sale Deed dated: 21/08/1975. The said 231 square feet is nothing to do with Sri. Muni Thimmaiah or any of his family members including the Plaintiff.
6. It is submitted that, Sri. Muni Thimmaiah died on 05/02/2001. After his death, the Plaintiff and other family members succeeded the schedule property with specific boundaries and enjoyed the same as absolute owners without any let or hindrance from anybody including the defendants. However, the daughter of Late Muni 6 O.S.No.4757/2017 Thimmaiah namely Smt. Savithramma out of love and affection towards the plaintiff and deceased Putta Raju, relinquished her right, title and interest over the schedule property by virtue of aforesaid release deed dated:
17/02/2016 and put the Plaintiff and the said Sri.Putta Raju in exclusive possession of the schedule property. Accordingly, both of them continued to be in possession and enjoyment of the schedule property without any let or hindrance. In view of the death of Putta Raju, the Plaintiff is in exclusive possession and enjoyment of the schedule property. The aforesaid documents produced by the Plaintiff proves that the Plaintiff and Putta Raju are the full and absolute owners and in un-interrupted possession of the schedule property.
7. The Plaintiff submits that, though the defendant No.1 purchased only an extent of East to West:17 feet and North to South: 28 feet ad-measuring 476 Square feet in Gramatana Kaneshmari No.22 of Arehalli Village from Sri. Muni Thimmaiah, wrongly executed Gift Deed on 16/07/2015 in favour of defendant No.2 to 5, who are none 7 O.S.No.4757/2017 other than the wife and children of defendant No.1 by mentioning the measurement East to West: 40 feet and North to South: 30 feet ad-measuring 1200 square feet. But none of the defendants have been in possession of such extent of area at any point of time. When the defendant No.1 purchased only an extent of East to West 17 Feet and North to South: 28 feet totally measuring 476 Square feet, how he can execute the gift deed in favour of Defendant No.2 to 5 to an extent of East to West: 40 feet and South:
30 feet ad-measuring 1200 Square feet. Thus it is clear that though the defendant No.1 is not the owner of 1200 Square feet nor in possession, in collusion with the defendant No. 2 to 5, got created the alleged Gift deed dated 16/07/2015, with a malafide intention to knock on the property of the Plaintiff. The said document is a void and sham document and therefore, no, right, title and interest, would be conferred on the defendants on the basis of alleged gift deed dated: 16/07/2015.
8. Though the Plaintiff is in un-interrupted peaceful possession and enjoyment of the schedule property, the 8 O.S.No.4757/2017 defendants without there being any manner of right, title, interest much less possession over the schedule property taking advantage of the alleged gift deed dated:
16/07/2015, to the utter shock and surprise all of a sudden, on 08/07/2017 came near the schedule property along with their henchmen, started interfere with the peaceful possession and enjoyment of the property by the plaintiff and tried to dispossess the Plaintiff from the schedule property contending that they are having right over the suit schedule property. However, the said interference of the defendants was resisted by the plaintiff with the help of neighbors and well-wishers,and they left the place threatening with the dire consequences. The Plaintiff immediately rushed to the jurisdictional Police and lodged complaint against the defendants, to that effect. They refused to initiate action against the defendants on the ground that the matter is civil in nature and advised the Plaintiff to approach the civil court for necessary reliefs. Hence, the present suit for the relief of permanent injunction.9 O.S.No.4757/2017
9. The defendants have appeared through their counsel and defendant No.3 has filed detailed written statement and the defendant No.1, 2, 4 and 5 have filed memo adopting the said written statement on their behalf. The defendant No.3 has filed his written statement denying the averments of the plaint as under;
10. The suit of the Plaintiff is not maintainable either in law or on the facts and the same is liable to be dismissed in limine. The suit is false, frivolous and vexatious and without any cause of action as such, the same is liable to be dismissed. The Averments made in Para No.2 of the paint to the effect that the Plaintiff is the co-owner and in possession of portion of Property bearing Gramatana Kaneshmari No.22, situated at Arehalli Village, presently under the limits of BBMP, Bengaluru measuring East to West: 40 Feet and North to South 19 Feet 1 inches in all totally measuring 724 square feet, together with watchman shed is false and denied.
11. The Averments made in Para No.3 of the plaint are denied as false. The Averments made in Para No.4 of 10 O.S.No.4757/2017 the plaint to the effect that the Plaintiff and one Sri. Puttaraju approached the BBMP for transfer of Khatha and considering their request, the BBMP has transferred the katha in to their joint names etc are denied as false. The Further averments that, the Plaintiff and his vendor has paid periodical taxes to the concerned authority and plaintiff has constructed a watchman shed in a portion of the schedule property is totally false and denied. The further averments in the said paragraph about/Release Deed and the said Puttaraju died on 27.06.2016 is not within the knowledge of the defendants. The averments with regard to the alleged possession and enjoyment of the plaintiff over the suit schedule property is totally false and denied the same. The Averments made in Para No.5 of the plaint with regard to the ownership and measurement and the execution of the sale deed dated 21/08/1975 is false and denied.
12. The Averments made in Para No.6 of the plaint to the effect that Sri. Muni Thimmaiah had sold only an extent of 476 Square Feet in favour of defendant No.1 11 O.S.No.4757/2017 under a registered Sale Deed dated 21/08/1975 is false and denied. The further averments that on the very same day the defendant No.1 has purchased another piece of Gramatana Kaneshmari No.22 of Arehalli Village, measuring East to West: 33 Feet and North to South: 7 Feet, ad-measuring 231 square feet under a registered Sale Deed dated: 21/08/1975 is false and denied. The said 231 square feet is nothing to do with Sri. Muni Thimmaiah or any of his family members including the Plaintiff is also false and denied.
13. The Averments made in Para No.7 of the plaint are denied as false. The Averments made in Para No.8 of the plaint are totally false and denied. The Averments made in Para No.9 of the plaint are also denied as false and the plaintiff is put to strict proof of the same. The Averments made in Para No.10 of the plaint to the effect that, the Plaintiff is in un-interrupted peaceful possession and enjoyment of the schedule property, the defendants without there being any manner of right, title, interest much less possession over the schedule property taking 12 O.S.No.4757/2017 advantage of the alleged Gift Deed dated: 16.07.2015 started to interfere with the peaceful possession and enjoyment of the schedule property of the plaintiff etc are all denied as false and the plaintiff is put to strict proof of the same. The further averments in the said paragraph No.10 are false and therefore, the plaintiff is put to strict proof of the same. The Averments made in Para No.11 of the plaint as to the alleged interference and lodging complaint with jurisdictional police etc is false and denied. The Averments made in Para No.13 is totally false and denied and there is no cause of action to file this suit.
14. The defendant No.3 submits his case as under;
The defendant Nos. 1 and 2 are the husband and wife by relationship. The defendant Nos. 3 to 5 are the sons of defendant Nos. 1 and 2 and all the defendants are the members of one and the same family. The defendant No.1 is the owner of the Property bearing Gramatana Kaneshmari No.22, V.P. Khata No.17/15, Property No.20/17/15 and Property bearing Gramatana Kaneshmari 13 O.S.No.4757/2017 No.22 V.P. Khata No. 18/15, Property No.21/18/16 totally measuring to an extent of East to West 40 Feet and North to South: 30 Feet situated at Arehalli Village, now coming under the limits of BBMP, Ward No.184, which is more fully described in the Schedule to the written statement and herein after called as "Written Statement Schedule Property". The defendant No.1 and his family members are in peaceful possession and enjoyment of the Written Statement Schedule property and they are constructed a small house and the same is let out for rent.
15. It is submitted that, the defendant No.1 has acquired the Written Statement Schedule property from one Munithimmaiah and Venkataswamappa under registered Sale Deeds dated: 21.08.1975. After purchasing the Written Statement Schedule property, the Khata was mutated in the name of the defendant No.1 and he is in peaceful possession and enjoyment of the Written Statement Schedule property. The defendant No.1 has acquired the Written Statement Schedule property through two registered Sale Deeds dated 21.08.1975. The said 14 O.S.No.4757/2017 property was acquired from Venkataswamappa an extent of 33x27 but by oversight it is mentioned as 33x7 in the sale deed dated 21/08/1975 however, the defendant No.1 is in possession of the written statement schedule property from the date of the purchase of the property measuring 33x27 feet. After noticing the said defect in the sale deed, the defendant No.1 has tried to rectify the said defects but he could not trace whereabouts of the vendor. The remaining property was acquired by the defendant No.1 from one Munithimmaiah to an extent of 17 x 28 feet thus the defendant No.1 and his family members are in possession of the property to an extent of 1200 square feet. The Plaintiff is claiming her right that she is the grand child of Munithimmaiah and the said Munithimmaiah alleged to have been purchased the property measuring 30 x 40, out of the said property, the said Munithimmaiah has sold to an extent of 17 x 28 to the defendant No.1. The said Munithimmaiah has acquired the above said property from one Bachappa S/o. Muniyappa through registered Sale Deed dated: 13.09.1950. The said 15 O.S.No.4757/2017 Munithimmaiah had acquired the property from said Bachappa only to an extent of 17 x 28 feet, the very same property was sold by the said Munithimmaiah to the defendant No.1. thus no property in Khanesumari No.22 was retained by the said Munithimmaiah.
16. The Plaintiff claiming the suit schedule property based on the alleged Release Deed dated: 17.02.2016, which was created by one Savithramma, Puttaraju and the Plaintiff herein by colluding with each other. The alleged Release Deed is created in respect of the suit schedule property only in the year 2016. Before creating the said alleged Release Deed no document was existing in respect of suit schedule property in the name of Savithramma. The Savithramma had no right, title and interest over the suit schedule property to execute the Release Deed in favour of the Plaintiff as the property was not in the name of said Savithramma. The Release Deed is created and fabricated document. Based on the alleged release deed, the plaintiff has created the B Property Registrar Extract only for the purpose of filing this suit for non-existing property. 16 O.S.No.4757/2017
17. The defendant No.1 is the absolute owner of the Written Statement Schedule Property, he has acquired the said property by paying valuable sale consideration through two registered Sale Deeds dated: 21.08.1975 and he is in peaceful possession and enjoyment of the property from the date of the purchase along with his family members. All the documents in respect of Written Statement Schedule Property stands in the name of the defendant No. 1. With love and affection, the defendant No.1 has executed a registered Gift Deed on 16.07.2015, in favour of defendant Nos.2 to 5 and accordingly based on the said Gift Deed, katha has been changed in the name of defendant Nos.2 to 5 who are in possession and enjoyment of the Written Statement Schedule Property.
18. The Plaintiff is not in possession of the suit schedule property. After creating the alleged Release Deed, the Plaintiff has tried to interfere with the possession of the defendants with Written Statement Schedule Property and therefore complaint was lodged with the Jurisdictional Police against the Plaintiff. The Plaintiff has not approached 17 O.S.No.4757/2017 this Court with clean hands. Accordingly, the defendants sought to dismiss the suit.
19. Based on the rival pleadings of the parties , this court has framed the following issues :-
1. Whether the plaintiff proves her possession over the suit property?
2. Whether she further proves the interference of the defendants over the suit property?
3. Whether plaintiff is entitled for the relief of permanent injunction as prayed for?
4. To what decree or order?
20. In order to prove the case of the plaintiff, the GPA holder of the plaintiff has been examined as PW.1 and got marked Ex.P.1 to 40 documents. One witness by name V. Ramaiah has been examined as PW.2 but no documents are marked through him. Earlier the defendant No.3 was examined as DW.1 and got marked Ex.D.1 to Ex.D.53 documents. Since the said witness died before the cross examination, his evidence was discarded vide order dated 17/06/2023. Later on, the defendant No.5 has been examined as DW.2 who adopted on his behalf the chief 18 O.S.No.4757/2017 examination evidence of DW.1 and the documents. One Honurappa has stepped into the witness box and filed affidavit in lieu of his chief examination and examined as DW.3 but no documents are marked through him.
21. Heard the arguments and perused the records. Both the parties have submitted their written arguments. Meticulously perused the written arguments. Now the findings of this court to the aforesaid issues are as under:-
Issue No.1: As negative Issue No.2: As negative Issue No.3: As negative Issue No.4: As per the final order, for the following;-
REASONS
22. Issue No.1 and 2: Since these two issues are intrinsically interconnected and required to be discussed together, they are taken up together for discussion in order to avoid the repetition of the law and the alleged facts.
The case of the plaintiff in brief is that the Property bearing gramatana, Kaneshmari No.22, measuring East to West: 40 feet and North to South: 18 feet 1 inches, totally 19 O.S.No.4757/2017 measuring 724 square feet, with watchman shed is owned and possessed by the plaintiff. Originally, the said property was owned and possessed by one Muni Thimmaiah who is none other than the grand father of plaintiff. The said Muni Thimmaiah sold the property measuring 17X28 feet to the defendant NO.1 under registered sale deed dated 21/08/1975 (476 Sqft). Similarly, one Venkataswamappa has sold the property measuring 33X7 ft to the defendant NO.1 under the registered sale deed dated 21/08/1975. It is the further case of the plaintiff that subsequent to the death of Muni Thimmaiah, his daughter Savitramma executed the release deed dated: 17/02/2016 infavor of the Plaintiff and his cousin Puttaraju. The said Puttaraju died on 27/06/2016 and accordingly, the plaintiff herein continued to be in possession of the suit schedule property. Such being the case, the defendants based on the created gift deed dated 16/07/2015 executed by defendant No.1 infavor of defendant No.2 to 5 claiming right over the property measuring 40X30 feet ad-measuring 1200 Sqft though the defendants are not in possession of the said 20 O.S.No.4757/2017 property. Hence, the present suit.
23. Ex.P.2 is the certified copy of the release deed dated 17/02/2016 executed by Smt. Savitramma D/o Late Sri. Muni Thimmaiah, infavor of Puttaraju and the plaintiff herein in respect of the Gramatana Khanesumari No.22, measuring East to West: 40 feet and North to South: 18 feet 1 inches, in all totally measuring 724 square feet. Ex.P.3 is the Form-B property Register extract depicts the name of the Savitramma. Ex.P.4 to 11 are the Tax paid receipts discloses the name of deceased Puttaraju and the plaintiff and payment of tax by them. Ex.P.12 is the encumbrance certificate discloses the execution of the release deed by Savitramma infavor of the plaintiff and one Puttaraju. Ex.P.18 is the certified copy of the sale deed dated 21/08/1975 executed by deceased Muni Thimmaiah, infavor of the defendant No.1 Madaiah under which the said Muni Thimmaiah has sold the property bearing Khanesumari No.22, measuring East to West:17 feet and North to South: 28 feet. Ex.P.19 is the certified copy of the sale deed dated 21/08/1975 executed by one 21 O.S.No.4757/2017 Venkatswamappa infavor of defendant No.1 under which the property measuring East to West: 33 feet and North to South:7 feet in Khanesumari No.22 was sold to the defendant No.1. Ex.P.20 is the certified copy of the gift deed executed by the defendant No.1 infavor of his wife and children in respect of the property measuring East to West: 40 feet and North to South: 30 feet in all totally measuring 1200 square feet in respect of Gramatana Khanesumari No.22, situated at Arehalli village of Bangalore South Taluk. The plaintiff has also produced the electricity bills and tax paid receipts and contended that he has obtained electricity connection to the shed existing in the suit schedule property. The photographs depicts the existence of the shed and electricity connection.
24. According to the plaintiff, originally the property bearing Gramatana Khanesumari No.22 of Arehalli Village measuring 30X40 was owned and possessed by Sri. MuniTimmiaiah and who was enjoying the suit schedule property as absolute owner thereof and sold a portion of the property measuring to an extent of East to West: 17 22 O.S.No.4757/2017 feet and North to South: 28 feet ad-measuring 426 Sqft infavor of defendant No.1 under registered sale deed dated 21/08/1975 and retained the remaining land in the name of late MuniTimmaiah and the said retained property is the subject matter of the release deed executed by his daughter Savitramma infavor of the plaintiff and deceased Puttaraju thus the plaintiff herein is in possession and enjoyment of property which is acquired under registered release deed marked at Ex.P.2.
25. No doubt, in a suit for injunction though the question of title need not be gone into in the absence of an issue with regard to the title, incidentally, the court can discuss about the flow of title. The plaintiff has not produced the sale deed executed infavor of Muni Timmiah. The defendant has produced the said sale deed which is marked at Ex.D.4. On careful perusal of the Ex.D.4 the sale deed, it is crystal clear that one Bachappa has sold the property bearing Khanesumari No.22, measuring East to West: 17 feet and North to South: 28 feet infavor of Muni Timmaiah. Ex.D.2 the sale deed discloses that in turn the 23 O.S.No.4757/2017 said Muni Timmaiah has sold the said property infavor of defendant No.1. Combined reading of Ex.D.3 and 4 the sale deeds, makes it clear that whatever the property purchased by deceased Muni Timmaiah under registered sale deed dated 13/09/1950 was transferred to defendant No.1 under the sale deed marked at Ex.D.2. The counsel for the defendant has vehemently argued that when Muni Timmaiah has sold the entire property purchased by him infavor of the defendant No.1 under registered sale deed dated 21/08/1975, the question of he retaining land in the name of Muni Timmaiah and in turn his daughter Savitramma executing the release deed infavor of the plaintiff and one Puttaraju does not arise as no property was retained in the name of either Muni Timmaiah or his daughter Savitramma. As rightly contended by the counsel for the defendant, whatever the property purchased by deceased Muni Timmaiah has been transferred to the defendant No.1 by virtue of the registered sale deed dated 21/08/1975 marked at Ex.D.2.
24 O.S.No.4757/2017
26. According to the plaintiff, the suit schedule property is a part of the written statement schedule property. In other words, both the parties to the suit are claiming rights in respect of one and the same property. The counsel for the plaintiff has placed reliance on the release deed dated 17/02/2016 marked at Ex.P.2. The said release deed is of the year 2016. As could be seen from the Ex.P.2 the release deed, there is a recital to the effect that deceased Muni Timmaiah was full and absolute owner of the property bearing Gramatana Khanesumari No.22 measuring 30X40 feet. Ex.D.4 the sale deed runs contrary to the recitals in the release deed. The defendants have produced the sale deed executed infavor of deceased Muni Timmaiah under which he purchased the gramtana site No.22 measuring 17X28 feet and the said property has been transferred to the defendant NO.1.
27. The plaintiff cannot take advantage of the weakness of the defendant's case. In other words, the burden of proof lies on the plaintiff. Admittedly the suit schedule property is vacant site. In the course of cross 25 O.S.No.4757/2017 examination, PW.1 admits the suggestion that the property bearing Khanesumari No.22 was originally belonging to one Bachappa and who sold it to Muni Timmaiah under registered sale deed dated 13/09/1950. It is also not disputed by the plaintiff that the property transferred under sale deed dated 13/09/1950 has been sold to the defendant No.1 under registered sale deed dated 21/08/1975 marked at Ex.D.2.
28. It is suffice to discuss here that the defendant No.1 has also purchased the property Khanesumari No.22 measuring 33x7 feet under registered sale deed marked at Ex.D.3. It is the case of the defendants that infact they have purchased the property measuring 33X27 feet from Venkataswamappa, however by oversight the dimension of property is mentioned as 33X7 and no efforts are made by them to rectify the said mistake. Even Ex.D.3 discloses that the defendant No.1 has purchased another bit of land from one Venkataswamappa. Admittedly, the said Venkataswamappa is neither the family member of the plaintiff nor related to them. In other words, the plaintiffs 26 O.S.No.4757/2017 are claiming their right as legal representatives of Muni Timmaiah. When such being the case, it is for the plaintiffs to prove that the said Muni Timmaiah had owned and possessed the property sold to defendant No.1 and as well as the property being claimed by the plaintiffs. As discussed herein above, on careful perusal of Ex.D.4, it is crystal clear that Muni Timmaiah had owned and possessed only the property measuring 17X28 feet in Khanesumari No.22 and the said property was sold to the defendant No.1. The said fact is admitted by PW.1. The release deed cannot be treated on par with the title deed/conveyance. Ex.P.2 is of the year 2016. No document is forthcoming to show the long and continuous possession of the plaintiff over the suit schedule property. No doubt, so far Indian Law is concerned even a trespasser in settled possession can maintain suit for injunction and he is entitled to the decree provided his possession is long and continuous and the same is established by preponderance of probabilities. In the instant case, there is serious cloud over the title and the measurement of the properties. The plaintiff has not 27 O.S.No.4757/2017 questioned or challenged the sale deeds marked at Ex.D.2 and 3 and the gift deed dated 16/07/2015 executed by defendant No.1 infavor of his wife and children, defendant No.2 to 5. The registered sale deeds carries presumption in law that the said documents are duly and validly executed. The Hon'ble Supreme Court in a ruling reported in AIR 2008 SC 2033 in the case of Anathula Sudhakar V/s P. Buchi Reddy (Dead) By Lrs & Ors at paragraph No.11 it is held as under;
11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled.
We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of 28 O.S.No.4757/2017 possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
29. On careful reading of the ruling cited supra, the law is clear that when there is serious dispute as to the title or cloud over the title a mere suit for injunction simpliciter is not the remedy and the plaintiff has to seek the relief of declaration of title, which is not done in the case on hand.
30. The photographs produced by the plaintiffs are self serving documents. The electricity bills and payment receipts pertains to the date immediately prior to filling of the suit. Even the said electricity bills does not reflect the long and continuous possession of the plaintiff. No doubt, DW.1 in the course of cross examination admits that he 29 O.S.No.4757/2017 has purchased only the property measuring 33X7 feet under registered sale deed marked Ex.D.3. According to DW.1 the said dimension is wrongly mentioned as 33x7 instead of 33X27. Be that as it may, the plaintiff cannot take the advantage of the weakness of the defendants case. He has to stand on his own legs. In other words, the issues casts burden on the plaintiff to prove his case by preponderance of probabilities. The registered gift deed marked at Ex.D.1 carries presumption in law that it is validly and duly executed. Similarly, the sale deed marked at Ex.D.2 is a registered document. Admittedly, the suit schedule property is a vacant site, the rule that possession follows title can be applied in the case on hand. The tax paid receipts produced by the defendants discloses the payment of tax by them. Ex.D.42 and 43 the mutation register extract further strengthens the case of the defendants. Ex.D.44 is of the year 1997-98 discloses the name of the defendant No.1 and his vendor. Ex.D.45 the tax assessment list for the year 1997-98 discloses the name of the defendant No.1 and his vendor 30 O.S.No.4757/2017 late Muni Timmaiah. Ex.D.46 discloses that BBMP has issued an endorsement to the effect that no 'B' katha extract was issued to the plaintiff.
31. The counsel for the plaintiff has placed reliance on the ruling of Hon'ble Supreme Court reported in AIR 1997 SC 2311 in the case of Bhoomireddy Chenna Reddy & Anr vs Bhoospalli Pedda Verrappa (Dead) by LR's and another. He also placed reliance on yet another ruling reported in AIR 2003 Punjab and Hariyana 245 in the case of Parkasho Devi And Ors. V/s Tarsem Lal And Anr. Further the plaintiff has placed reliance on the ruling reported in AIR 2001 ANDHRA PRADESH 400, in the case of Avula Sathaiah V/s Avula Lingaiah And Others. The plaintiff has also placed reliance on the ruling reported in ILR 2008 KAR 672 in the case of Smt. Mariam George vs Smt. S. Jeswina W/O Sri Sathya Murty. This court has meticulously perused the rulings cited supra. The facts and circumstances of this case is totally different from the facts and circumstances stated therein is totally different from the facts and circumstances of the case on hand. 31 O.S.No.4757/2017 The plaintiff has failed to prove that deceased Muni Timmaiah had owned and possessed the land and subsequent to his death, the plaintiff being the legal representative of the deceased succeeded the property left behind the deceased. Ex.D.4 the sale deed discloses that deceased Muni Timmaiah had purchased the property bearing Khanesumari No.22 measuring 17X28 feet and the said property was transferred in the name of defendant No.1 and no property has retained in the name of said Muni Timmaiah. The plaintiff has not produced documents to show his alleged possession and enjoyment of the suit schedule property. Both the parties to the suit are claiming rights in respect of one and the same property. There is a serious cloud and dispute over the title. When there is a serious dispute over the title and measurement of property, a mere suit for injunction simpliciter is not the remedy. Hence, assessed from any angle, this court is of the considered opinion that the plaintiff has failed to prove his possession as on the date of the suit and the interference by the defendants. 32 O.S.No.4757/2017 Hence, issue No.1 and 2 are answered as negative.
32. Issue No.3:- Since the plaintiff has not proved her possession over the suit schedule property as on the date of the suit and the alleged interference and also in view of the foregoing discussion on issue No.1 and 2, she is not entitled to the relief of injunction. Accordingly, issue No.3 is answered as negative.
33. Issue No.4:- In view of the foregoing discussion on issue No.1 to 3 and findings thereon, this court proceeds to pass the following;
ORDER The suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 29th day of November, 2024.) (DODDEGOWDA.K) XLIV ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 33 O.S.No.4757/2017 ANNEXURE I. List of witnesses examined on behalf of:
(a)Plaintiff's side :
PW.1 A. Anjanappa
PW.2 V. Ramaiah
(b)Defendant's side :
DW.1 M. Chandra
List of documents exhibited on behalf of :
(a)Plaintiff's side :
Ex.P.1 GPA
Ex.P.2 Certified copy of the release deed
dated 17/02/2016
Ex.P.3 Form-B property Register extract
Ex.P.4 to 11 Tax paid receipts
Ex.P.12 & 13 Certified copies of encumbrance
certificate
Ex.P.14 to 16 Two photographs with CD
Ex.P.17 Death certificate of Puttraju
Ex.P.18 Certified copy of the sale deed dated
21/08/1975
Ex.P.19 certified copy of the sale deed dated
21/08/1975
Ex.P.20 certified copy of the gift deed
executed by the defendant No.1
Ex.P.21 Tax invoice dated 30/05/2018
34 O.S.No.4757/2017
Ex.P.22 to 37 Electricity bills
Ex.P.38 and 39 Photos
Ex.P.40 CD
Defendants' side :
Ex.D.1 Registered gift deed dated 16/7/2015
Ex.D.2 Registered sale deed dated 21/8/1975
Ex.D.3 Registered sale deed dated 21/8/1975
Ex.D.4 Certified copy of the sale deed dated
13/9/1950
Ex.D.5 to D.41 37 tax paid receipts
Ex.D.42 & D.43 Two extracts of mutation register
Ex.D.44 & D.45 Two extracts of house tax assessment
register
Ex.D.46 Endorsement issued by BBMP
Ex.D.47 Notice dated 10/7/2018
Ex.D.48 Certified copy of the affidavit
Ex.D.49 Tax paid receipt
Ex.D.50 B Khatha extract
Ex.D.51 Letter dated 2/8/2018 issued by
KPTCL
Ex.D.52 &D.53 Two police endorsements
XLIV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.