Bangalore District Court
Smt Dakshayani Reddy vs Sri.D.Venaktesh @ on 30 June, 2020
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O.S.No.2580/2012
C.R.P.67 Govt.of Karnataka
Form No.9(civil)
Title sheet for
Judgment in suits TITLE SHEET FOR JUDGMENTS IN SUITS
(R.P.91)
IN THE COURT OF THE XII ADDL CITY CIVIL AND
SESSIONS JUDGE AT BENGALRURU
Dated 30th June, 2020
PRESENT: SRI. SATHISHA.L.P., B.A., LL.B.,
XII ADDL CITY CIVIL AND SESSIONS JUDGE (CCH.No.27)
BENGALURU
O.S.No.2580/2012
PLAINTIFF Smt Dakshayani Reddy
w/o Sri R.H.Narasimha reddy
aged about 35 years
R/at No.47/9,
Chinnappa layout
Kempapura Hebbal
Bangalore- 560 092
(By Sri D.S.Jayaraj. Advocate)
V/S
DEFENDANT/S 1. Sri.D.Venaktesh @
Venkateshappa.
S/o Sri Dyavappa
Major
No.275/1, Ram mandir road
Kodihalli, Sahakara nagar post,
Bangalore- 560 092.
2. Sri. Chandrashekar reddy
Major
Father name not known
1st block, 3rd main,
Near Vivekananda school
Sahakaranagara
Bangalore
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O.S.No.2580/2012
Date of institution of suit 7/04/2012
Nature of suit Permanent injunction
Date of commencement of recording 2/2/2016
evidence
Date on which the judgment was 30/6/2020
pronounced
Total duration Years Months Days
8 2 23
(SATHISHA.L.P.)
XII ADDL CITY CIVIL AND SESSIONS JUDGE
BENGALURU CITY
-:JUDGMENT:-
The plaintiff has filed the present suit against the defendant for the reliefs of
permanent injunction to restrain the defendants and their agents servants
administrators henchmen or any other person claiming under or through them from
interfering with the peaceful possession and enjoyment of the schedule property by
the plaintiff for cost and such other relieves.
2. The gist of the plaintiff's is case that the plaintiff is the absolute owner
in possession and enjoyment of the suit schedule A & B property. The plaintiff has
purchased the suit A schedule property under the registered sale deed dated 13/2/2007
executed by Smt C.R.Leela through her GPA holder Sri Jayappa reddy. And suit B
schedule property was acquired by the plaintiff and her husband under a registered
sale deed dated 8/3/2007 executed by Durjati Gopal Krishna s/o D.Jayarama rao.
Inview of the untimely death of her husband plaintiff succeeded to the property.
Accordingly The plaintiff has been in possession and enjoyment of the schedule
properties as absolute owner thereof.
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O.S.No.2580/2012
3. While purchasing the schedule property the same was within the
purview of Bytarayanapura city municipal council Bangalore and the same now is
within the purview of BBMP accordingly the plaintiff has taken necessary steps to get
the Khatha transferred in his favor from BBMP. The schedule property is intact and
the same is an vacant land. Except the plaintiff no one has got any right, title or
interest whatsoever over the schedule property. The schedule property is the absolute
property of the plaintiff and the plaintiff is entitled to enjoy the same without any
impediment or whatsoever nature. All these documents clearly show that the plaintiff
has been in possession and enjoyment of the schedule property as absolute owner
thereof.
4. The fact that schedule property is carved out of the land bearing survey
number 210/2 situated at Kodigehalli Yelahanka Hobli Bangalore north taluk is not
in dispute. The defendant No. 1 had executed an agreement of sale and registered
power of attorney in respect of the land in question in favour of one Mr
Jayappareddy, r/o Cholanayakanahalli, RT Nagar Bangalore. The power of attorney
executed by the defendant No.1 in favour of the said Jayappa Reddy is inclusive of
power of alienation which is registered one. In turn the said Jayappareddy has sold
the land in question in favour of Smt. C.R. Leela under a sale deed dated 17/3/1995,
who in turn executed a registered power of attorney dated 24/8/1996 in favour of
C.K. Venkata Swami Naidu registered as document. No. 412/19/96-97 before the sub
registrar Yelahanka Bangalore. In pursuance of the same the said K Venkata Swami
Naidu has formed a full-fledged layout of different dimensions in the land in
question. The suit property is carved out of the said land in question and conveyed in
favour of the plaintiff under the sale deed referred to above.
5. Absolutely there is no dispute between the plaintiff and his vendor.
When once the plaintiff has acquired the suit property in the manner referred to supra
the plaintiff is entitled to enjoy the same without any impediment of whatsoever
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O.S.No.2580/2012
nature. The plaintiff has acquired the suit said property out of his hard on money. The
fact that the land in question is converted from agricultural to residential purpose and
a full fledged layout is formed is very well within the knowledge of the defendant
No. 1, The defendant No.1 is also very well aware of the fact that the sites are carved
out and conveyed the sites in favour of various persons inclusive of the plaintiff here
in. In fact major portion of the land in question is developed and purchasers of the
sites or residing there in by constructing houses. In view of the development of the
layout in the land in question all the amenities that is water electricity sanitary etc.,
are provided. The plaintiff has not taken up construction in the property in question
but has put up compound wall. The plaintiff has availed loan by mortgaging the
social property from State bank of India Richards town, Branch Bangalore.
It is relevant to note here that, the defendant No. 1 had instituted a suit in O.S.
No. 7550/2001 before the city civil Judge Bangalore against the predecessors in title
of the plaintiff here in. Initially the said suit was confined only for the relief of
injunction from interfering and alienating the land in question. The claim of the
defendant No.1 in the said suit was disputed by the predecessor in title of the plaintiff
herein. thereafter the defendant No.1 got amended the suit seeking declaration and
possession by filing an application. This itself suffice to show this suit was initially
filed for injunction and subsequently the same came to be amended seeking
declaration and possession. There is no dispute with regard to the claim laid down by
the defendant No.1 seeking relief of possession as the same is apparent from the
claim made by the made by himself in the said suit. In view of the same it is not open
for the defendant No.1 now to claim that the defendant No.1 is in possession of the
suit property. Assuming but not considering if the defendant No.1 is in possession of
the property in question it was not open for the defendant No. 1 to seek relief of
possession. This fact makes it crystal clear that it is a categorical stand on the part of
the defendant No.1 that he is not in possession of the suit property and sought for
possession of the same. The Aforesaid suit came to be dismissed by the judgement
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O.S.No.2580/2012
and decree dated 21/3/2006. Aggrieved by the same the defendant No.1 had for
preferred an appeal before the Hon'ble High Court of Karnataka in
RFA.No.1530/2006. The said appeal came to be allowed thereby setting aside the
judgement and decree passed in the aforesaid suit. it is the finding of the court in the
appeal that "considering the possession of vacant land is that possession follows
title". Further it is the finding of the court that sale deed executed by Jayappareddy in
favour of Smt C.R. Leela dated 15/5/1995 is illegal. It is declared that defendant No.1
is in possession of the suit property. In toto it is the finding of the court that the
aforesaid land is vacant land and nature of the land is not changed. In fact and in
reality it is not a vacant land but major portion of the land is developed except 8 sites
inclusive of the plaintiffs site. The aforesaid fact is neither considered nor looked into
by the court in the aforesaid appeal. Aggrieved by the same the predecessors in title
of the plaintiff herein preferred a petition before the Hon'ble Supreme Court of India
in SLP.No.4828/2012 and the same is pending for consideration. In the aforesaid
petition the hon'ble court has been pleased to issue notice to the defendant No.1. The
judgement and decree passed in the aforesaid appeal has to be adjudicated by the
hon'ble Supreme Court of India in accordance with the law.
6. Admittedly the plaintiff is not a party to the proceedings either before
the lower court or before the appellate court. It is not only the plaintiff but others who
have purchased and developed the site are also not parties to the aforesaid
proceedings. In fact the development taken place in the land in question was very
well within the knowledge of the defendant No.1. It is also not in dispute that the
development of sites in the land in question was not completed in a day or two or
couple of months but the same spread over for years together. when such a
development is taken place and sites were conveyed not only by the predecessor in
title of the plaintiff but also other parties it is the casted upon the defendant number 1
to implead the plaintiff and other respective persons who own and possessed sites.
The fact that defendant No.1 is not blind and his vision is very clear. It is the duty
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O.S.No.2580/2012
casted upon the defendant No.1 to take necessary steps seeking necessary orders from
the court from altering the nature of the property or altering the land in question.
Contrary to the same the defendant No.1 has allowed development of major portion
of the land and as such the defendant. No.1 is a acquiesced with the same. This fact is
suppressed not only before the lower court but also before the appellate court.
Admittedly the factum of institution of the suit is not disclosed either to the plaintiff
or other purchasers who are similarly situated.
It is further submitted that the suit of the defendant No.1 was initially for
permanent injunction as the same was confined against the predecessors in title of the
plaintiff. In such circumstances it was not necessary for the defendant No.1 to
implead the plaintiff as party to the suit as the grievance confined only with regard to
the interference between the parties concerned in the aforesaid suit. When once the
defendant No.1 got amended the plaint seeking relief of declaration and possession it
is not open for the defendant No.1 to confine the suit only against predecessor in title
of the plaintiff but implead all necessary parties who acquired the title in the land in
question and seek necessary relief. contrary to the same although the defendant No.1
had knowledge of the development taken place in the land in question the defendant
No.1 did not take necessary steps. when once the defendant No.1 has not confined the
suit only for injunction but also relief of declaration, the suit ought to have been not
only against the parties concerned but the persons who own and possess sites. Such
being the case whatever the judgement and decree passed in the aforesaid suit is not
binding on the plaintiff.
7. It is settled principle that the defendant No.1 had knowledge of
possession and enjoyment of the suit property by the plaintiff and other persons
concerned over the suits in the land in question he has to take necessary steps to
implead them. Otherwise the right of the parties concerned is going to be prejudiced
and the same will of any consequences. The judgement and decree passed in the
aforesaid suit is in no way concerned with the plaintiff and the plaintiff is not a party
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O.S.No.2580/2012
to the aforesaid suit virtually the plaintiff is going to be affected and aggrieved
parties who were not impleaded were not pre-predecessors in title but the plaintiff
and others who are similarly situated. In the aforesaid circumstances if any judgement
and decree of the same is not only nonest but also of any consequences. In view of
the same it is not necessary for the plaintiff is to seek declaration declaring the
judgement and decree dated 21/10/2011 passed by the Hon'ble High Court of
Karnataka in RFA 1530/2006 as not binding on the plaintiff however, in the event the
situation warrants the plaintiff reserves his right to seek declaration.
8. Admittedly the suit property is not the land as the same lost its character
since a full-fledged layout is formed. Under the circumstances the finding of the court
that the aforesaid land is vacant land and nature of the land is not changed does not
arise. Moreover the defendant No.1 himself as sought for the relief of possession.
There is no decree as such as claimed by the defendant No.1 in the appeal. Moreover
the validity of the same is also challenged by the parties concerned. Admittedly it is
the specific case that the defendant No.1 is not in possession of the land as such the
question of meddling with the possession and agreement of the property by the
defendant No.1 does not arise. The aforesaid decree is also not executable as there is
no executable decree. It is also not in dispute that the plaintiff and others who are
similarly situated are not parties to the same and as such the validity of the decree is
nonest as far as the plaintiff is concerned. The claim of the defendant No.1 is subject
to the outcome of SLP.4828/2012. In the aforesaid circumstances it is not open for the
defendant.No.1 to meddle or interfere with the possession of the suit property. The
sole intention of the defendant No.1 is to lay claim over the land in question under the
guise of decree for extraneous consideration. Now the defendant No.1 has set up the
defendant No. 2 to meddle with the suit property.
9. As already stated there is no dispute between the plaintiff and his vendor
in respect of the suit property and the suit property absolutely belongs to the plaintiff.
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O.S.No.2580/2012
Except the plaintiff no one has got any right title or interest whatsoever over the
schedule property. The plaintiff is entitled to enjoy the suit property without any
impediment of whatsoever nature. Absolutely there was no dispute nor any
obstruction by anyone much less the defendants herein. Contrary to the same, the
defendants herein tried to interfere with the peaceful possession of the suit property
on 10 March 2012. in view of the resistance by the defendant and his neighbors the
defendants failed in their attempt. The defendants and their henchmen are making
illegal and high-handed attempts to meddle with the property in a high-handed
manner only for extraneous consideration but not otherwise. Admittedly the matter
with regard to the property in question is pending before the Apex court and the same
has to be adjudicated in accordance with the law. So also the judgement and decree
on which the defendant No.1 is trying to lay claim is not binding on the plaintiff or
the suit property as the plaintiff is not a party to the proceedings. The said fact is very
well within the knowledge of the defendant No.1 in spite of it the defendant No.1 has
set up the defendant No.2 and making illegal attempts in a high-handed manner. In
view of the same the plaintiff approached the jurisdictional police to take necessary
action but they failed to entertain the complaint. This fact clearly shows that
jurisdictional police are also hand in glove with the defendants.
10. The act of the defendant is not only illegal but also high-handed with the
help of goonda elements. The sole intention of the defendants in meddling with the
possession and enjoyment of the suit property by the plaintiff is for otherwise reason
for otherwise consideration. It is modus operandi on part of the defendants only to
create problems for bargaining but not otherwise. When once the schedule property
absolutely belong to the plaintiff, the plaintiff alone is entitled to enjoy the same
without any impediment of whatsoever nature. The defendants are not entitled to
interfere with the possession and enjoyment of the same. When the judgement and
decree is not binding on the plaintiff and suit property, is not open for the defendant
to interfere with the possession and enjoyment of the schedule property under the
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O.S.No.2580/2012
guise of aforesaid judgement and decree. It is only the plaintiff is entitled to enjoy the
property without any interruption or any interference of whatsoever nature. The
documents produced clearly show that the plaintiff has been in possession and
enjoyment of the schedule property. That be so, it is not open for the defendants to
interfere with possession and enjoyment of the schedule property by the plaintiff but
the defendants are not of such a nature.
It is further submitted that, as already stated supra the jurisdictional police
failed to entertain the complaint of the plaintiff herein. taking undue advantage of
the same the defendants herein once again tried to interfere with the possession and
enjoyment of the schedule property by the plaintiff on 16/3/2012 at about 4:30 PM.
The defendants came to the schedule property with the help of goonda and antisocial
elements and tried to take possession of the schedule property illegally and high
handedly. Fortunately the plaintiff resisted the illegal and high-handed activities of
the defendants with the help of his neighbors. As such the defendants failed in their
attempt of taking illegal possession of the schedule property from the plaintiff. It is
relevant to note here that plaintiff brought to the notice of the defendants that the
schedule property absolutely belongs to him and questioned about the right of the
defendants but there was no proper response from the defendants with regard to the
basis for claiming right over the schedule property. The illegal and high handed
interference of the defendants is not only in respect of the plaintiff site but also other
persons who are similarly situated in the locality.
11. The defendants are powerful and backed up by goonda and antisocial
elements. The plaintiff failed to understand the reasons and basis for interference of
the defendants. The sole intention of the defendants is to knock off the property
which absolutely belongs to the plaintiff. As already stated the defendants have no
right to interfere with the peaceful possession and enjoyment of the schedule property
by the plaintiff. Moreover the defendants are also not entitled to question the
enjoyment of the plaintiff over the schedule property. Unfortunately the defendants
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are not allowing the plaintiff to enjoy the schedule property without any right title or
interest.
12. The defendants are not only interfering with the possession and
enjoyment of the schedule property but also trying to take possession of the property
illegally and a high handedly. The defendants have no respect/regard for law.
Moreover the defendants may go to any extent for grabbing the schedule property.
The plaintiff is a law-abiding citizen having respect / regard for law. Moreover the
plaintiff is not in a possession to resist the illegal and high-handed activities of the
defendant. The plaintiff apprehending that the desperate defendants may once again
try to interfere with the peaceful possession and enjoyment of the schedule property
having no other option approaching this hon'ble court for an order of injunction
against the defendants from interfering with the peaceful possession and enjoyment
of the suit property by the plaintiff. With these facts the plaintiff is before the court
for the above said relieves and seeks to decree the suit.
13. After service of summons the defendant No.1 has appeared before the
court and has filed the written statement by disputing and denying the plaint
averments, where he has contended that the suit of the plaintiff is not maintainable
either in law or facts of the case and the same may be dismissed in limine. It is
further submitted by the defendant No.1, that he has executed the GPA for the
purpose of formation of residential layout by dividing into site the land bearing
survey number 210 /2 measuring to an extent of 1 acre 23 guntas after getting
conversion order from the deputy commissioner. The said GPA was executed as
defendant No.1 was not keeping good health and was finding difficult to manage the
property. The said GPA holder did not discharge his duties in formation of the layout
and the defendant No.1 continue to cultivate the said property. The said GPA dated
4/6/994 has been revoked by the defendant No.1 under a registered a revocation date
dated 31/3/1997,thereafter the defendant No.1 came to know that GPA holder Shri
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Jayappareddy had executed a sale deed in favor of C.R. Leela and the defendant No.1
had filed a suit before the civil court in O.S No. 7550/2001 for the relief of
declaration to declare the sale deed as null and void and as a sham document and the
agreement is not binding on him. The said suit was dismissed by the trial court vide
judgement dated 21/3/2006. The defendant No.1 being aggrieved by the said
judgement and decree passed by the trial court filed an appeal before the Hon'ble
High Court of Karnataka in RFA .No. 1530/2006. The said appeal was allowed by the
hon'ble High Court vide Judgment dated 21/10/2011 and set aside the judgement
passed by the trial court and allowed the suit filed by the defendant No.1 declaring
the sale deed dated 15/5/1995 executed in favour of Jayappareddy and agreement of
sale executed by Smt. C.R..Leela in favour of VenkataSwamy Naidu as illegal and
has further declared that the plaintiff therein is in possession of the property. By
virtue of the judgement passed in R.A all subsequent Sale transactions are void. It is
not required for the defendant No. 1 to implead the plaintiffs as party to the suit filed
by the defendant No.1 herein. As per section 52 of the transfer property act and any
transfer of property during the pendency of any case in any court established by law
in which any right of immovable property is directly and specifically in question, the
property cannot be transferred or otherwise dealt with by any other party to the suit or
proceedings so as to affect the rights of any other party thereto under any decree or
order which may be made therein. Here in the Instant case admittedly the said
transaction took place during the pendency of the suit which was subject matter of the
suit and the plaintiff has purchased a site out of the suit schedule property in O.S
No. 7550/2001. Hence the question of getting the valid title to the plaintiff does not
arise. The plaintiff by virtue of the fraudulent transfer is now claiming rights over the
said property to defeat the valuable rights of the defendant No.1 which is nothing but
abuse of process of law, hence the plaintiff is not entitled for any relief from this
hon'ble court. The plaintiff is claiming his title through the sale deed dated
17/5/1995. when the same having declared as illegal the plaintiff will not get better
title than his predecessor and the title of the plaintiff will step into the shoes of his
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vendor and as stated above the plaintiff cannot seek declaration of the judgement
passed in RFA number 1530 / 2006 as not binding on him. Decree passed by the
hon'ble High Court of Karnataka in RFA. No. 1530 / 2006 is an executable decree
against the defendants therein and against others who claim rights through the
defendants. The judgment passed by the Hon'ble High court is based on the evidence
available on record. The plaintiff cannot say that the judgment is nonest since the
judgement is passed by following the principles as laid down by the hon'ble Supreme
Court. If at all the plaintiff is aggrieved by the judgement passed by the Hon'ble High
Court that he can approach the Hon'ble Supreme court by filing special leave petition
to challenge the judgement passed by the hon'ble High Court. The plaintiff has come
up before this hon'ble court with a concocted and created story in order to get a
favorable order. It is submitted that the plaintiff has purchased the suit schedule
property during the pendency of the suit and judgement passed by the High Court is
binding on them. The plaintiff was never in possession of the future the property,
hence he cannot claim that it is the owner and in possession of the suit property. The
present suit filed by the plaintiff is it frivolous in order to knock off the valuable
property belonging to the defendant No.1. The defendant No.1 never interfered with
the possession of the plaintiff as stated above, in fact it is the plaintiff wanted to enter
into the suit property to defeat the valuable rights of the defendant No.1 and at the
point of time defendant No.1 has resisted the illegal acts of the plaintiffs. The
defendant No.1 is the owner of the property bearing survey number 210/2 and the
suit property is part of same and hence the plaintiff it cannot claim that he is the
owner of the property. In fact the plaintiff has no right title and interest over the suit
property. The plaintiff is the land grabbers and with the intention to knock off the suit
property has filed with present suit. The defendant No.1 is a law-abiding citizen and
has obtained a judgment from the Hon'ble High Court declaring that he is the owner
of the property bearing survey number 210/2. Apart from that defendant No.1 has
also contended that the suit of the plaintiff is filed only imaginary cause of action and
there is no cause of action and alleged cause of action is far from truth. Further he has
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O.S.No.2580/2012
contended that the court fee paid by the plaintiff is not correct and he should pay the
court fee under section 26(a) of Karnataka court fee and suit valuation act. The
defendant has also taken contention that the plaintiff is not entitled for any relief as
claimed in the plaint. The suit filed by the plaintiff is a frivolous suit in collusion with
the real estate mafia. As admitted by the plaintiff the suit schedule property is a
vacant site and as such the possession follows title and there is declared by the
hon'ble High Court that the plaintiff is owner in possession of the property in survey
number 210/2. The hon'ble High court has already declared that the sale deed dated
17/5/1995 as illegal and has also declared that the defendant No.1 is in possession of
the property bearing survey number 210/2 and the suit schedule property is part of the
above said survey number. The plaintiff cannot seek injunction against the true
owner. If at all the plaintiff is aggrieved by the judgement of the Hon'ble High Court
he has to approach the Hon'ble Supreme court for necessary relief. The plaintiff
having purchased the suit schedule property during the pendency of the suit in
O.S.No.7550/2001. As per the section 52 of TP act the plaintiff cannot claim nor he
derive any right or title by virtue of the registered sale deed. The plaintiff has filed
this frivolous suit in order to knock off the valuable property belonging to the
defendant No.1. The suit as such filed by the plaintiff is devoid of merit and as such
not maintainable and is liable to be dismissed with exemplary cost. The plaintiff has
not come to the court with clean hands and is not entitled for any further relief. With
these contentions he seeks to dismiss the suit.
14. The defendant number two though served with summons remained
absent hence he placed exparte.
15. On the basis of the above pleadings, the following issues are framed:-
1. Whether the plaintiff proves her lawful possession over the suit schedule
property as on the date of the suit?
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2. Whether the plaintiff proves the alleged interference of the defendants
over the suit property, for her peaceful possession and enjoyment of the
same?
3. Whether the plaintiff is entitled for relief sought for?
4. What order or decree?
16. The plaintiff No.1 got examined herself as P.W.1 and got marked and Ex
P1 to 19.
Ex.P.1 Certified copy of the sale deed dated 13/2/2007, Ex.P.2 is sale deed
dated 8/3/2007. Ex Ex.P.3 and 4 is Demand register extract, and Ex P 5 & 6 are tax
paid receipts , Ex.P. 7 & 8 are encumbrance certificate, Ex P 9 is certified copy of
the judgement passed in O.S.No.7550/2001, Ex.P.10 is certified copy of the decree
passed in O.S.No.7550/2001, Ex.P.11 is a certified copy of the judgement passed in
RFA 1530/2006 dated 21-10-2011, Ex.P.12 is certified copy of the decree passed in
RFA.530/2006. Ex P 13 is certified copy of the agreement of sale dated 21 April
1993, Ex P14 is general power of attorney dated 4/6/1994, Ex P 15 is certified copy
of the judgement passed in RFA 1530 of 2006 dated 20 July 2015, Ex.P.16 to 18 are
photographs, Ex.P.19 is CD.
17. To substantiate the defence of the defendant No.1 himself examined as
D.W.1 and got marked Ex.D1 to 30. Ex D1 is certified copy of the petition FDP
3422/90, Ex D 2 is certified copy of the plaint in O.S.No 8333/1995, Ex D 3 is
judgement passed in RFA 1530 of 2006, Ex D4 is certified copy of the judgement
and decree in OS number 9206/2004, Ex D5 is certified copy of the sale deed dated
20/2/1950, Ex D 6 is certified copy of the sale deed dated 19/6/1919, Ex D 7 is
certified copy of the sale deed dated 2/6/1926, and Ex D 8 certified copy of the sale
deed dated 20/2/1950 and Ex D 9 is certified copy of the sale deed dated 21/5/1923.
and Ex D 10 is RTC, and Ex D 11 to 13 is MR, Ex D 14 is tax paid receipts, Ex D
15 is conversion order dated 10/11/1997, Ex D 16 is certified copy of the EC, Ex D
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O.S.No.2580/2012
17 is judgement in C.C.No.9896/2012, Ex D 18 is RTC, and Ex D 19 is Bescom
document, Ex D 20 is work order, Ex D 21 tax invoice, Ex D 22 & 23 tax paid
receipt, Ex D 24 to 26 are BESCOM document, Ex D 27 is RTC, Ex D 28 is MR,
Ex D 29 is encumbrance certificate.
18. Heard the arguments and perused the records.
19. My findings on the above issues are:-
Issue No.1: In the AFFIRMATIVE
Issue No.2: In the AFFIRMATIVE
Issue No.3: In the AFFIRMATIVE
Issue No.4: As per the final order, for the following;
REASONS
20. Issue No.1, 2 and 3:- Since this suit is for permanent injunction issue
No.1, 2 and 3 are taken common discussion as all the issues are interlinked.
The plaintiff is before the court for the relief of permanent injunction to
restrain the defendants, their agents, servants, administrators, henchmen or anybody
claiming under or through them from interfering with the peaceful possession and
enjoyment of the suit schedule property by the plaintiff and for such other reliefs.
21. The definite case of the plaintiff is that, she is the absolute owner in
possession and enjoyment of the suit property and defendants having no manner of
right, title, interest over the suit property is trying to meddle with the peaceful
possession and enjoyment of the plaintiffs. On the other hand the defendant No.1 who
filed the written statement contesting the suit has contended that, he is the owner in
possession and enjoyment of the property and the plaintiff is not in possession of the
same and he seeks to dismiss the suit. This is the suit for permanent injunction and in
this suit the plaintiff has to establish his lawful possession and enjoyment of the suit
property and interference by the defendants.
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22. Before going into the merits of the case let me consider some admitted
facts of the case. There is no any dispute that the suit schedule property is carved out
of the land in Sy.No.210/2 of Kodigehalli village, Yelahanka Hobli, Bangalore North
Taluk. Because the defendant No.1 in his written statement para No.4 has
categorically admitted "the averments stated in para No.5 of the plaint that the
schedule property is carved out of Sy.No.210/2 situated at Kodigehalli village,
Yelahanka Hobli, Bangalore North Taluk are hereby admitted as partly true and
correct". And further he has also admitted that he has executed the GPA to one
Mr.Jayappa Reddy to the said Survey Number for the purpose of forming the
residential layout in the said survey number. From these it is very much clear that,
originally the property was belonged to the family of the defendants.
23. The definite case of the plaintiff is that, on the basis the GPA dated 4-6-
1994 executed by the defendant No.1, one Mr Jayappa Reddy, has sold the suit
schedule property to one Smt.C.R.Leela under the registered sale deed dated 17-5-
1995 and the said Leela has executed GPA in favor Mr.Venkataswamy Naidu. And
the said venkataswamy naidu on the strength of the GPA has sold the suit schedule A
property to plaintiff under a registered sale deed dated 13/2/2007 which is marked at
Ex-P-1. And through Ex D 2 sale deed dated 8/3/2007 herself and her husband have
purchased the suit B schedule property. The khatha and EC also reflects plaintiff's
name in respect of suit schedule property. The defendant who has filed the written
statement by admitting the execution of GPA in favour of Jayappa Reddy, has
categorically stated in his written statement that, he has cancelled the GPA executed
in favour of Jayappa Reddy under a Revocation deed dated 31-3-1997. At this
juncture we have to consider that, before cancellation of the GPA under the
Revocation deed dated 31-3-1997 the Jayappa Reddy was already executed the sale
deed in favour of Leela on 17-5-1995 and very interestingly though the defendant
No.1 has stated that, he has revoked the GPA executed in favour of Jayappa Reddy,
he has not at all produced said documents before the court. In this circumstances this
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O.S.No.2580/2012
court has no other option but to draw adverse interference against the defendant No.1
for non-production of the said Revocation deed. Apart from all these the defendant
No.1 specifically contends that, he is in possession of the property on the strength of
the judgment rendered by the Hon'ble High Court of Karnataka dated 21-10-2011 in
RFA 1530/2006, which was preferred by the defendant No.1 himself against the
judgment and decree passed in O.S.No.7550/2001. The said suit was filed by the
defendant No.1 against Jayappa Reddy, Leela and Venkataswamy Naidu for the relief
of declaration and for possession and enjoyment and the same was dismissed by the
trial court, against which he preferred in RFA to the Hon'ble High Court and there the
Hon'ble High Court while reversing the findings of the trial court has given that
finding. On the basis of said finding the defendant No.1 claims he is the owner of
possession and enjoyment of the property but the same cannot be accepted for the
simple reason that against the finding given by the Hon'ble High Court of Karnataka
in RFA 1530/06 dated 21-10-2011, the aggrieved parties approached the Hon'ble
Supreme Court by filing the SLP and matter was remanded back and after remand the
Hon'ble High Court of Karnataka again considered the appeal and on 20-07-2015
while confirming the judgment of the trial court, has dismissed the appeal filed by
the defendant No.1 herein. When the judgement of the trail court is upheld by the
Hon'ble High Court on 20-07-2015, the defendant No.1 cannot contend that he is the
owner in possession and enjoyment of the property because he was already executed
the GPA in favour of Jayappa Reddy and said Jayappa Reddy on the strength of GPA
has sold the property and there are subsequent transaction and on the basis of Ex.P.1
& 2 the possession and title is passed on to the plaintiff. The relief sought by the
defendant No.1 himself in O.S.No.7550/2001 for possession and declaration clearly
goes to show that, he has parted with possession and title of the suit property. When
he has parted with possession and title he cannot claim that, he is in possession and
owner of the suit property and his contention is estopped under Section 115 of Indian
Evidence Act. Though the defendants has produced voluminous record but none of
the documents are helpful to the defendant to establish his title and possession, in
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view of the clear finding by the Hon'ble High Court in RFA No.1530/2006 dated 20-
07-2015 while confirming the judgment and decree passed in O.S.No.7550/2001.
And when the plaintiff is able to establish the passing of title and possession through
the registered documents through the procedure known to law, the defendant No.1
cannot claim that he is the owner in possession and enjoyment of the property.
Claiming the possession and enjoyment of the property contrary to the registered
instrument and also against the findings of Hon'ble High Court in RFA.1530/2006 is
nothing but interference and moreover the suit property admittedly is vacant site
under these circumstances definitely possession follows the title. Hence I am of the
opinion that, the plaintiff is able to establish the issue No.1, 2 and 3. Hence issue
No.1, 2 and 3 answered in affirmative. In view of above reasons on I proceed to pass
the following order.
24. Issue No.4 :- in view of my findings on the above issues, I proceed to
pass the following;
ORDER
The suit of the plaintiff is decreed with cost. The defendants, their agents or servants or anybody claiming through them are hereby restrained by way of permanent injunction from interfering in the peaceful possession and enjoyment of the suit property by the plaintiff.
Draw decree accordingly.
( Dictated to the stenographer, transcript thereof corrected, signed and then pronounced by me, in open court on this 30th day of June 2020) SRI. SATHISHA.L.P., BA., LL.B., XII ADDL CITY CIVIL AND SESSIONS JUDGE 19 O.S.No.2580/2012 (CCH-27) BENGALURU SCHEDULE 'A' All that piece and parcel of site bearing No.5, khatha No.1357/210, formed out of converted land bearing Sy.No.210/2, converted for non-agricultural residential purpose vide official memorandum No.DIS/ALN.SR/(N.A.)170/1997-1998 dated 10/11/1997, situated at Kodigehalli, Yelahanka hobli, Bangalore north taluk, Measuring East to West 17 ft and North to South 54.6 ft, total measuring 926 sq.ft. and Bounded on :
East by:- 25 feet wide road West by:- site No.6 North by:- 30 ft road South by :- Private property SCHEDULE 'B' All that piece and parcel of site bearing No.34, khatha No.1310/1357/210-34, formed out of converted land bearing Sy.No.210/2, converted for non-agricultural residential purpose vide official memorandum No.DIS/ALN.SR/(N.A.)170/1997- 1998 dated 10/11/1997, situated at Kodigehalli, Yelahanka hobli, Bangalore north taluk, Measuring East to West 50 ft and North to South 36 ft, total measuring 1800 sq.ft. and Bounded on :
East by:- 25 feet wide road West by:- Private property North by:- private property South by :- site No.35 and 37.
ANNEXURE 20 O.S.No.2580/2012 I. List of witnesses examined on behalf of :
(a) plaintiff's side:-
PW-1: Chandrashekar B.D.
(b) defendant's side:
DW-1: D.Venkatesha.
II. List of documents Exhibited on behalf of :
(a) plaintiffs side:
Ex.P.1- Certified copy of the sale deed dated 26/6/2008, Ex.P.2 - Demand register extract. Ex.P.3 - tax paid receipts, Ex.P.4 - EC Ex.P.5 - certified copy of the judgement passed in O.S.No.7550/2001, Ex.P.6 - certified copy of the decree passed in O.S.No.7550/ 2001, Ex.P.7 - certified copy of the judgement passed in RFA 1530/2006 dated 21-10- 2011, Ex.P.8 - certified copy of the decree passed in RFA.530/2006. Ex P 9 - certified copy of the agreement of sale dated 21 April 1993, Ex P10 - general power of attorney dated 4/6/1994, Ex P 11 - certified copy of the judgement passed in RFA 1530 of 2006 dated 20 July 2015, Ex.P.12 to14 - photographs, Ex.P.15- CD
(b) defendant side:-
Ex D1 - certified copy of the petition FDP.No 3422 of 1990, Ex D 2 - judgement and decree passed in O.S No.8333 of 1995 dated 27 November 2006.
Ex D3 - certified copy of the judgement passed in RFA 1530 of 2006, 21 O.S.No.2580/2012 Ex D4 - certified copy of the judgement and decree in OS number 9206/2004, Ex D5 - certified copy of the sale deed dated 24/11/1996, Ex D6 - certified copy of the sale deed dated 20/2/950, Ex D7 - certified copy of the sale deed dated 17/6/1919, Ex D 8 - certified copy of the sale deed dated 2/6/1926, Ex D 9- certified copy of the sale deed dated 21/5/1923, Ex D 10 - certified copy of the partition deed dated 7/5/ 2010 Ex D 11 - RTC, Ex D 12 - MR, Ex D 13 - tax paid receipts, Ex D 14 - conversion order dated 10/11/1997, Ex D 15 - EC, Ex D16 - certified copy of the Sketch, Ex D17 - certified copy of the judgement in C.C.No.9896/2012, Ex D 18 - certified copy of the complaint, , Ex D 19 - RTC Ex D 20 - MR, Ex D 21 - BESCOM document, Ex D 22 - BESCOM workorder, Ex D 23 - tax paid receipt , Ex D 24 to 25 - tax paid receipt, Ex D 26 - test certificate Ex D 27 to 28 - Bescom bill and receipts, Ex D 29 - RTC Ex D 30 - MR Ex D 31 - encumbrance certificate.22
O.S.No.2580/2012 SRI. SATHISHA.L.P., BA., LL.B., XII ADDL CITY CIVIL AND SESSIONS JUDGE (CCH-27) BENGALURU