Bangalore District Court
In O.S.No.2364/2009 vs In O.S.No.2364 To 2365/2009 on 21 February, 2017
THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY
Dated on this the 21st day of February 2017
-: Present :-
Smt. Hemavahi, BBM, LL.B,
XXXIX Additional City Civil & Judge,
Bangalore City.
ORIGINAL SUIT NO. 2364 TO 2366, 2467 AND
3131/2009
Plaintiffs in O.S.No.2364/2009
and 2366/2009 :-
1. Mr.John Baptist Serrao, 62 Years,
S/o. Late Martin Serrao.
2. Smt.Kristin Ida Serrao W/o.John
Baptist Serrao, 49 Years,
Both are R/o.No. 15/1(39) Hutchins
Road, 2nd Cross, Thomas Town,
Bengaluru - 560 084.
Plaintiff in O.S.No.2365/2009 : -
D.Basavaraja S/o.D.Siddappa, 34
Years, R/o.No.144/4, Shivaprasad
Nilaya, Near Kaveri Water Tank,
A.Narayanapura Dooravani Nagar,
K.R.Puram, Bengaluru-16.
[By Sri.N.Sukumar Jain, Advocate]
/ Versus /
Defendant in O.S.No.2364 to 2365/2009:-
Mr.K.Muniraju S/o. Late Koorlappa, 45
Years, No.159, Mesthri Kooralappa
Road, Chokkasandra, T.Dasarahalli
Post, Bengaluru - 560 057.
[By Sri. C.R., Advocate]
Parties in O.S.No.3131/2009
Plaintiff : -
Smt.Umamaheshwari
W/o.N.S.Raghuraman, 29 Years,
R/o.No.58, 2nd Floor, Sadashiva
Temple Street, 6th Cross, R.S.Palya,
Kammanahalli, Bengaluru-560 033.
[By Sri.D.P.Shivaprasad, Advocate]
/ Versus /
Defendants :-
1. K.Muniraju S/o.Late Kurlappa, 45
Years, No.159, Mesthri Koorlappa
Main Road, Chokkasandra,
T.Dasarahalli Post, Bengaluru
District.
2. Doddagopal S/o. Late Muniyappa
@ Gullappa, 43 Years.
3. Chikkagopal S/o. Late Muniyappa
@ Gullappa, 34 Years.
D-2 & D-3 are R/o.No.Chokkasandra
Village, Nagasandra Post,
Yeshavanthapura Hobli, Bangalore
North Taluk.
[Sri.C.R., Advocate for defendant
No.1.
Defendants No.2 and 3 - Ex-parte.]
Parties in O.S.No.2467/2009
Plaintiff : -
Sri.K.Muniraju S/o.Koorlappa, 45
Years, No.159, Mesthri Kooralappa
Main Road, Chokkasandra,
T.Dasarahalli Post, Bengaluru - 57.
[By Sri.C.R., advocate]
/ Versus /
Defendants :-
1. Sri.John Baptist Serrao, 61 Years,
S/o. Late Martin Serrao.
2. Smt.Kristin Ida Serrao W/o.John
Baptist Serrao, 49 Years.
Both are R/o.No. 15/1(39) Huchins
Road, 2nd Cross, Thomas Town,
Bengaluru - 560 084.
3. Smt.P.Arul Moli W/o. G. Pandian,
48 Years, R/o.No.45, 6th Temple
Road, 15th Cross, Malleshwaram,
Bengaluru-3.
4. Sri.D.Basavaraju S/o.D.Siddappa,
36 Years, R/o.Benakanahalli
Village, Ujjani Post, Koodligi Taluk,
Ballari District.
[By Sri.D.P.Shivaprasad, Advocate]
Date of Institution of the suit : 03.04.2009
in O.S.No.2364 to 2366/2009
Nature of suit : Suit for permanent
injunction
Date of commencement of : 17.01.2011
evidence
Date on which the judgment is : 21.02.2017
pronounced
Years Months Days
Duration taken for disposal :
07 10 08
O.S.No.2467/2009
Date of Institution of the suit : 08.04.2009
Nature of suit : Suit for permanent
injunction
Date of commencement of : 22.07.2012
evidence
Date on which the judgment is : 21.02.2017
pronounced
Years Months Days
Duration taken for disposal :
07 10 13
O.S.NO.3131/2009
Date of Institution of the suit : 18.05.2009
in O.S.No.2364 to 2366/2009
Nature of suit : Suit for permanent
injunction
Date of commencement of : 10.08.2011
evidence
Date on which the judgment is : 21.02.2017
pronounced
Years Months Days
Duration taken for disposal :
07 09 03
***
JUDGMENT
The plaintiff in O.S.No.2364/2009, O.S.No.2365/2009, O.S.No.2366/2009 and O.S.No.3131/2009 are though different, the defendant in these suits who is also plaintiff in O.S.No.2467/2009 is common, the contention of the parties, documents relied upon by them, issues framed by this Court and facts of cross-examination of both the parties are identical. Hence, to avoid repetition of the facts and evidence and appreciation of material placed by both the parties and to avoid the conflict of Judgment, confusion in appreciation of evidence and also to save the precious time of the Court, I have taken up all these suits for Common Judgment.
2. Suits in O.S.No.2364/2009, O.S.No.2366/2009, O.S.No.2365/2009 and O.S.No.3131/2009 are filed by the respective plaintiffs against the defendant in those suits for the relief of permanent injunction to restrain the said defendant, his men, agents or anybody on behalf of the defendant from interfering with the respective plaintiffs' peaceful possession and enjoyment over the respective suit schedule properties and such other reliefs with costs.
3. The suit in O.S.No.2467/2009 is filed by the defendant in the aforesaid cases against the plaintiffs in O.S. No.2364/2009, O.S.No.2366/2009 and O.S.No.2365/2009 and one Anil Moli, for the relief of permanent injunction to restrain them from interfering with his possession over the suit schedule property and such other reliefs with costs.
4. Brief facts of the case of the plaintiffs' in O.S.No.2364 to 2366/2009 and 3131/2009 are that -
(1)They are the absolute owners of respective suit schedule sites having purchased the same under the following Sale Deeds : (a) In O.S.No.2364/2009 sale deeds dated 10.3.2004 and 5.3.2004; (b) in O.S.No.2365/2009 Sale Deed dated 10.3.2004; (c) O.S.No.2366/2009 - Sale Deed dated 10.3.2004; (d) In O.S.No.3131/2009 Sale Deed dated 13.2.2004.
5. It is the common contention of the plaintiffs that they have purchased their respective suit properties from defendants No.2 and 3 for valuable consideration and the plaintiffs have been paying necessary tax with respect to the suit schedule sites to M.C. Dasarahalli Panchayath as it was within the jurisdiction of said panchayath and now they have been paying tax to BBMP, they are in possession and enjoyment of the same, the
6. Further, it is the common contention of the plaintiffs in O.S.No.2364/2009, O.S.No.2365/2009, O.S.No.2366/2009, that : (a) They decided to put up fence and gate to the suit schedule site and fencing to the schedule sites and a common gate was installed on 12.3.2009 and respective plaintiffs appointed the Watchman to look after and take care the respective suit schedule sites which are the vacant sites, which are abutting each other. The plaintiffs in O.S.No.2366/2009 and O.S.No.2365/2009 further states that with an intention to construct a small shed in the suit property, they stored the material and started construction on 18.3.2009.
(b) That, on 19.3.2009 few people came to the spot and objected for construction of shed by the plaintiffs in site No.5 and tried to take possession of the schedule property by force. On enquiry, they revealed that the defendant had instructed them to prevent the plaintiffs from putting up construction. And, on 21.3.2009 again the defendant came near the suit property and by force removed the main common gate of the schedule property and later at the repeated requests of the Watchman and due to the intervention of the local people, the defendant brought the main gate and dumped the same in one of the sites, but warned the watchman that he will take possession of the suit schedule sites by force at any time.
7. It is the further case of the Plaintiff in O.S.No.3131/2009 in the fist week of 2009, the first defendant with the support of defendants No.2 and 3 have made an attempt to unlawfully interfere with his possession and enjoyment of the suit property and illegally attempting to dispossess him from the suit property. When the plaintiffs started to construct compound wall, in order to safeguard her property, the defendant started to interfere with the possession of the suit property claiming subsisting right, title or interest over the entire 10 guntas of land in Sy.No.22/3 and threatened the plaintiff with dire consequences.
8. It is further case of the plaintiffs that, they lodged complaint to the local police against the defendant, but instead of taking action, they advised them to approach the Civil Court and they have not even warned the defendant. The defendant is local man with political influence. Plaintiffs cannot protest the defendant. The defendant has no manner of right, title or interest over the suit properties. Defendant tried to take possession by illegal manner taking advantage of the absence of the plaintiffs in the schedule property. Hence, filed the respective suits.
9. The defendant appeared through his Advocate in all the above cases and filed identical written statement denying the averments made in the respective suits and contended that he is the absolute owner in possession and enjoyment of the property bearing Sy.No.22/3 measuring 10 guntas of Chokkasandra Village, Yeshavanthapura Hobli, Bangalore North Taluk having purchased the same under registered Sale Deed dated 8.7.2003 and 11.8.2006 obtained GPA and affidavit from its original owners Gangamma @ Ganganarasamma, G.Gopala and Chikkagopala and this property was acquired his vendor by their ancestors and since the date of sale deed he has been in possession and enjoyment of the same, he obtained khatha and pahani in his name. Earlier it was in the name of his vendor G.Gopala and Gangamma and his vendors never alienated any property in favour of plaintiffs and the alleged suit schedule sites are not in existence and the alleged sale deed is a created document and this suit is filed with an intention to snatch the property of defendant and on 22.3.2009 at about 10.30 a.m. the plaintiffs came near the defendant's property along with 5 to 6 unknown persons seeking possession of the property and threatened the defendant with dire consequences and tried to dispossess the defendant from his property. Though at that stage he maintained the possession of his property with the help of friends, relatives and neighbourers, he filed suit in O.S.No.2467/2009. The plaintiffs have no manner of right, title or interest or possession over the property bearing Sy.No.22/3 measuring 10 guntas situated at Chokkasandra Village, Yeshavanthapura Hobli, Bangalore North Taluk. The property of the defendant is claimed by the respective plaintiffs by false boundary. Hence, prayed to dismiss the suit with costs.
10. Defendants No.2 and 3 in O.S.No.3131/2009 did not appear before the Court. Hence, placed ex-parte.
11. The brief facts of the case of the plaintiff in O.S.No.2467/2009 is that :- it is nothing but repetition of contentions taken in his written statement in all other suits.
12. Defendant No.3 in this suit filed written statement denying the averments made in the plaint and contended that he is the absolute owner of residential Site No.1 in Sy.No.22/3 of Chokkasandra Village, Yeshwanthapura Hobli, Bangalore North Taluk measuring 30 x 40 ft having purchased the same under Sale Deed dated 4.12.2003 from Doddagopal and Chikkagopal and 10 gunas in Sy.No. 22/3 is their ancestral property and based on the sale deed this defendant acquired the right, title and interest over the property and he has been in peaceful possession and enjoyment of the same. Khatha changed in his name and in the first week of March 2009, plaintiff with the supporters of Doddagopal and Chikkagopal has tried to interfere with his peaceful possession and illegal attempted to dispossess him. Though with great difficulty he prevented, they threatened him that they will dispossess him at any cost. Plaintiff is the total stranger to the suit property and G.Gopal @ Doddagopal and Chikkagopal had no right, title or interest over the suit property. When it was already sold in favour of this defendant. Hence, prayed to dismiss the suit with costs.
13. The defendant No.4 in this suit filed written statement and contended that the suit is not maintainable either in law or on facts, denying the plaint averments and he is the absolute owner of site No.9 measuring 30x40 ft situated at Chokkasandra Village, Bengaluru and it is the portion of plaint schedule property which the plaintiff alleges indirectly in the written statement filed in O.S.No.2365/09 and this defendant has purchased the schedule site for valuable consideration from one G.Gopala @ Dodda Gopala and another under registered Sale Deed dated 10.3.2004 and initially it was with the jurisdiction of CMC Dasarahalli and he paid tax to the CMC. At present it is within the jurisdiction of BBMP and he has paid upto date tax and he is in possession and enjoyment of the schedule site. When he decided to put a fence and a shed in the schedule site, on 12.2.2009 he put up the fence and installed gate, and engaged watchman to look after the said site, and he stored materials near the schedule site, started construction work on 18.3.2009, at that instance on 19.3.2009 people came to the spot and objected. On enquiry, it was revealed that this plaintiff had instructed them to interfere with his possession over the suit property. However, he continued the work, but again on 23.1.2009 the plaintiff along with his men came to the spot, by force removed the main gate. When this defendant lodged complaint, police have not taken any action and he was advised to approach the Civil Court. Hence, he filed suit in O.S.No.2365/2009. Hence, prayed to dismiss the suit with costs.
14. The defendants No.1 and 2 in this suit have filed their written statement denying the averments made in the plaint and contended that they have already filed suit in O.S.No.2364/2009 and 2366/2009 and the suit schedule properties therein are the portions of plaint schedule property herein. In this written statement, they have repeated the plaint averments in their case and finally prayed to dismiss the suit with costs.
15. On the basis of the pleadings of the parties, following identical issues have been framed by this Court in all the suits. Issues in O.S.No.3131/2009 and 2467/2009 are framed in English and in other suits are in Kannada. Issues in O.S.No.2364/2009, O.S.No.2365/2009 and O.S.No.2366/2009 (1) zÁªÁ ¢£ÁAPÀzÀAzÀÄ ªÁzÁ D¹ÛAiÀÄ ¸Áé¢üãÁ£ÀĨÀsªÀz° À è EzÀÝgÀÄ JA§ÄzÀ£ÀÄß ªÁ¢UÀ¼ÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÀĪÀgÉÃ? (2) zÁªÁ D¹ÛAiÀÄ vÀªÀÄä ¸Áé¢üãÁ£ÀĨÀª s ÀPÉÌ ¥ÀæwªÁ¢ CrØ DvÀAPÀ ¥Àr¸ÀÄwÛzÁÝgÉ JA§ÄzÀ£ÀÄß ªÁ¢UÀ¼ÀÄ ¸Á©ÃvÀÄ¥Àr¸ÀÀĪÀgÉÃ?
(3) ªÁ¢UÀ¼ÀÄ PÉÆÃjgÀĪÀAvÉ ±Á±ÀévÀ ¥Àæw§AzÀsPÁeÉÕÉAiÀÄ rQæ ºÉÆAzÀ®Ä CºÀðgÉÃ?
(4) AiÀiÁªÀ rQæ CxÀªÁ DzÉñÀ ?
Issues in O.S.No.2467/2009 (1) Whether plaintiff proves that he is in possession and enjoyment of the suit schedule property on the date of instituting the suit ?
(2) Whether plaintiff proves the illegal interference of the defendants?
(3) Is the plaintiff entitled to the relief of permanent injunction as prayed ?
(4) What order or decree ?
Issues in O.S.No.3131/2009 (1) Whether plaintiff proves that she was in lawful possession and enjoyment of the suit schedule property as described in the suit schedule including location, identification, measurement and boundaries on the date of the suit ?
(2) Whether plaintiff proves that defendant interfered in her peaceful possession and enjoyment of the suit schedule property on 2.3.2009 ?
(3) Whether suit for bare injunction is maintainable without plaintiff seeking relief of declaration of title to the suit schedule property ?
(4) What order or decree ?
16. Plaintiffs in O.S.No.2364/2009 examined first plaintiff as P.W.1 and got marked in all 6 documents as per Exs.P.1 to P.6. The defendant examined him as D.W.1 and got marked 8 documents as per Exs.D.1 to D.8.
17. Plaintiffs in O.S.No.2365/2009 examined first plaintiff as P.W.1 and got marked in 3 documents as per Exs.P.1 to P.3. The defendant examined him as D.W.1 and got marked 7 documents as per Exs.D.1 to D.7.
18. Plaintiffs in O.S.No.2366/2009 examined first plaintiff as P.W.1 and got marked in all 3 documents as per Exs.P.1 to P.3. The learned advocate for defendant cross- examined P.W.1 in part and he filed a Memo stating that he adopts the cross-examination in O.S.No.2364/2009 as further cross-examination in this case and it was allowed by this Court. The defendant examined him as D.W.1 and got marked 7 documents as per Exs.D.1 to D.7.
19. Plaintiffs in O.S.No.3131/2009 examined her as P.W.1 and got marked in all 22 documents as per Exs.P.1 to P.22. The defendant examined him as D.W.1 and got marked 6 documents as per Exs.D.1 to D.6.
20. Plaintiff in O.S.No.2467/2009 examined him as P.W.1 and got marked in all 5 documents as per Exs.P.1 to P.5. The learned advocate for defendants No.1, 2 and 4 filed Memo stating that he has not defendant's evidence in this case.
21. To avoid any confusion, hereinafter I refer plaintiff in O.S.No.2364/2009, O.S.No.2365/2009 O.S. No.2366/2009 and O.S.No.3131/2009 as their rank in the respective suits and the plaintiff in O.S.No. 2467/2009 as his rank in O.S.No.2364, 2365, 2366, 3131/2009.
22. Since Exs.D.4 to 7 marked in O.S.No.2364/2009 though marked in all other cases, but there is difference in their ranks. Therefore, to avoid confusion, I hereinafterwards refer these documents as per their ranks i.e., Exs.D.4 to D.7 in O.S.No.2364/2009.
23. Heard both sides.
24. My findings on the Issues in all the suits are as follows :
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : As per final order, for the
following reasons.
REASONS
26. Issues No.1 in all the cases :- It is the case of the respective plaintiffs in O.S.No.2364/2009, 2365/09, O.S.No.2366/2009 and 3131/2009 that they have purchased the respective suit schedule sites from one Gopal @ Dodda Gopal and Chikkagopal under different registered Sale Deeds and they have been in peaceful possession and enjoyment over the suit properties since the date of purchase. They have been paying tax to the C.M.C.Dasarahalli and now to the BBMP. The defendants have no manner of right, title or interest over the same and the plaintiffs had put up fence around the suit schedule sites and sites No.5 and 6 which are situated abutting to the suit schedule sites and engaged the watchman to take care of these sites and plaintiff in O.S.No.2365/2009, 2366/2009 and 3131/2009 that they have commenced the construction work on 18.3.2009.
27. Per contra, the defendant (plaintiff in O.S.No.2467/2009) contended that the property in Sy.No.22/3 measuring 10 guntas of Chokkasandra Village, Yeshavanthapura Hobli, Bangalore North Taluk originally belonged to one gullappa @ Muniyappa, his legal heirs by name Ashwathappa and G. Gopala and Chikkagopala have inherited the said property and said Ashwathappa died living behind his wife Smt.Gangamma @ Ganganarasamma and said S.Gopala S/o.Late Gullappa and Gangamma W/o.Late Ashwathappa have sold the property in his favour under registered Sale Deed dated 11.8.2006 and the GPA and affidavit were also executed in his favour on 8.7.2003. Since then he has been in possession and enjoyment of the said property. The plaintiffs have filed this suit in respect of property which is not in existence and they are claiming the property from this defendant by giving false boundaries.
28. Admittedly, except in the plaint in O.S.No.3131/2009 nowhere it is stated in which survey number the respective suit schedule sites are situated. Even except in O.S.No.3131/2009, in all other cases in the plaint schedule the survey numbers of sites are not mentioned.
29. In the course of cross-examination P.W.1 in O.S.No.2364/2009 and O.S.No.2366/2009 deposed that Sy.No.22/3 is an agricultural land, which measures 10 guntas and it is a vacant land and he further deposed that he does not know whether there is formation of site in Sy.No.22/3 and he also deposed that Sy.No.22/3 does not belong to him.
He also deposed that their vendor had shown sites No.5 to 8 in their sale deeds. But, he does not know on the basis of which document they have given site numbers. He also deposed that Chikka Gopala and Dodda Gopala had furnished the boundaries of suit schedule sites, but he does not remember on the basis of which documents they have furnished the said boundaries. If this evidence is taken into consideration, it is very clear that the plaintiffs are not aware in which survey number their property is situated and what are the documents relied upon by their vendor to give the site numbers and also the boundaries to those sites. Further, it is very clear that Sy.No.22/3 measuring 10 guntas is no way related to these plaintiffs.
30. When the P.W.1 deposed that he has not paid any betterment charges in respect of Sy.No.22/3 and Sy.No.22/3 does not belong to him and he does not know whether there is formation of sites in Sy.No.22/3 and even interference he sale deed it is not mentioned in which survey number these sites are situated and when he has not produced any document about the formation of these sites, it is very clear that the property of the plaintiffs is not situated in Sy.No.22/3.
31. In O.S.No.2364/2009 Ex.P.1 is the Sale Deed dated 10.3.2004 in respect of Site Nos. 6 and 7 and Ex.P.4 is the Sale Deed dated 5.3.2004 in respect of Site No.8, in O.S.No.2366/2009 Ex.P.1 is the Sale Deed dated 10.3.2004 in respect of Site No.5. In these documents, nowhere it is stated in which survey number of the property these sites are carved. But, there is a recital in page 2 and also in the schedule of the respective sale deeds that these sites are situated in Khatha No.21, Assessment No.22/3 of Chokkasandra Village, Yeshavanthapura Hobli, Bangalore North Taluk. Admittedly no sketch or plan are registered along with these sale deeds to show the location of the respective sites. So, it is very difficult to identify the suit schedule sites. Further, either in the plaint or in the evidence and also in the sale deeds as per Exs.P.1 and P.4, nowhere it is stated when the sites were formed, who has formed the sites. So, it is the plaintiffs who have to explain in which survey number their sites are situated. Nowhere they have stated about the survey number of the suit schedule sites.
32. In O.S.No.2364/2009 Ex.P.2 is the Form No.3 issued by the Dasarahalli Nagarasabhe in the name of the plaintiffs in respect of sites Nos.6 and 7. Exs.P.3 and P.5 are the tax paid receipts. These documents no way help the plaintiffs to prove the location or identity of the suit properties.
33. P.W.1 in O.S.No.2365/2009 deposed that he purchased the property after verifying the mother deed, encumbrance certificate, but he do not remember in whose name mother deed was there and he has shown the boundaries of the suit property on the basis of the sketch given by his vendor and any authority has not issued the sketch. If this evidence is taken into consideration, it is very clear that there was sketch with respect to the site and its boundary. But, the plaintiff has not produced the said sketch. But, it is not explained why he withhold the said sketch. Ex.P.1 herein is the sale deed dated 10.3.2004 executed by G.Gopal @ Doddagopal and Chikkagopal and no sketch is registered along with this sale deed.
34. He further deposed that he does not know in whose name Sy.No.22/3 of Chokkasandra Village was standing at the time of purchase and he never enquired brothers and sisters of his vendors and he has not verified whether there was partition between G.Gopal and his sisters and brothers and he do not remember whether the name of Ganganarasamma was standing in RTC and he has not taken any document supporting to his sale deed from the relatives of G.Gopal. If this evidence is taken into consideration it is very clear that he has purchased the property without verifying the title of his vendors.
35. He further deposed that he does not know that Sy.No.22/3 is an agricultural land till today and he has not questioned the RTC entries before any authority. He further deposed that in which survey number his site is in existence and he does not know whether there is a khatha as 21 in respect of suit property and he does not know there is no assessment number as 22/3. If this evidence is considered, it is very clear that he does not know in which survey number his site is carved. Though in the plaint or chief affidavit nowhere stated that his site is situated in Sy.No.22/3, for the first time by denying the suggestion put to her that she is not owning any bit of land in Sy.No.22/3 and she is not in possession of any portion of 10 guntas of land, she contends that her site is situated in Sy.No.22/3.
36. Apart from the sale deed she produced Ex.P.2 which is the self declared property tax register extract and Ex.P.3 tax paid receipt. These do no help the plaintiff to say that her site is situated in Sy.No.22/3 and she is in possession of the property situated within the boundaries mentioned sale deed as per Ex.P.1.
37. Plaintiff in O.S.No.3131/2009 deposed in her cross-examination that it is not mentioned in her sale deed that suit schedule site is situated in Sy.No.22/3 and suit schedule site is situated in agricultural land, it is not converted for non-agricultural purpose and no layout plan pertaining to her site was approved by any authority and while purchasing the suit schedule site she had not verified the documents pertaining to the said property and also not confirmed who was the khatha holder of the said property. If this evidence is taken into consideration, it is very clear that without verifying the record she has purchased the property and the property where the site which she is claiming is situated has not been converted for non- agricultural purpose.
38. She further deposed that she does not know that in the year 2004-05 RTC in respect of suit schedule site was in the name of G.Gopal and Gangamma. She admitted that Gangamma had no executed any sale deed in her favour. She also admits that 10 guntas of land in Sy.No.22/3 is vacant land and there is no electricity and drainage facility to the said survey number. This evidence falsifies the contention of the plaintiff in other suits that they have started the construction work in their respective sites.
39. Ex.P.1 is the Sale Deed dated 13.2.2004 executed by Doddagopal and Chikkagopal where nowhere stated in which survey number this site is situated. Ex.P.2 is the self assessed property tax register extract in the name of plaintiff. Exs.P.3 to 9 are the tax paid receipts. Ex.P.10 is the certified copy of the sale deed in favour of one Smt.P.Arun Moli by Doddagopal and Chikkagopal. Exs.P.11 to 15 are the certified copies of the sale deeds relating to the other suits. In this document also, nowhere stated what is the survey number of said site. Ex.P.17 to 22 are the photographs. These documents do not reveal that suit schedule site is situated in Sy.No.22/3. So, these documents no way help the plaintiff to show that her site is situated in Sy.No.22/3 measuring 10 guntas which the defendant (plaintiff in O.S.No.2467/2009) is claiming his property.
40. D.W.1 (P.W.1 in O.S.No.2467/2009) in his cross- examination deposed that 10 guntas of land is situated at Chokkasandra and suit schedule sites are not in existence and after service of summons he has not made any efforts to verify the location of the suit schedule properties, because it is not necessary for him and 10 guntas of land purchased by him is not related to the suit schedule property. Now this 10 guntas of land comes in BBMP, BBMP has not changed khatha in his name. He is not paying tax to BBMP. He denies that suit schedule sites are nothing but 10 guntas of land which he is claiming and the plaintiffs in this case and plaintiff O.S.No.2366/2009 and O.S.No.3131/2009 are in possession of the sites which comes in 10 guntas of land which he is claiming and plaintiffs have purchased the said sites which he is claiming as 10 guntas of land.
41. If this evidence of defendant is taken into consideration, it is very clear that the plaintiffs are shifting the burden on the defendant to prove the location of suit schedule sites and also the plaintiffs are contending that the suit schedule sites are situated in 10 guntas of land said to have been purchased by the defendant in Sy.No.22/3. Though as discussed above it is suggested to the defendant that suit schedule sites are nothing but 10 guntas of land which he is claiming, nowhere they have suggested that it is in Sy.No.22/3. Nothing is elicited from the mouth of D.W.1 to say that the suit schedule sites are situated in Sy.No.22/3 or the defendant is claiming the said sites.
42. Further, it is suggested to D.W.1 that in his written statement he has stated about Sy.No.22/3 measuring 10 guntas of land and he has not stated about the suit schedule property. So, it proves that the defendant is claiming 10 guntas of land in Sy.No.22/3 which is not converted for any other purposes and he is not claiming any sites and even he is not contending that the suit schedule sites are situated in his property. He clearly stated in his written statement and cross-examination that there are no sites in Sy.No.22/3.
43. When the defendant has contended that he is the absolute owner of the property bearing Sy.No.22/3 measuring 10 guntas and the plaintiffs are claiming right over the said property, it is the plaintiffs who have to prove the identity of the properties. But, except producing their sale deeds, there is no document for identification of the suit schedule sites. When such being the fact, it is the respective plaintiffs who have to prove the location of the suit schedule sites and the survey number in which it is situated. Ofcourse, he deposed in his cross-examination that he has no objections to decree the suit except 10 guntas of land in Sy.No.22/3. But, that does not mean that respective plaintiffs have proved the location of respective suit schedule sites and the respective suit schedule sites are situated within the boundaries mentioned therein.
44. D.W.1 produced Ex.D.1, which is the certified copy of the Sale Deed dated 11.8.2006 executed in favour of K.Muniraju by Gangamma @ Ganganarasamma, G.Gopala and Chikkagopala in favour of Sy.No. 22/3 measuring 10 guntas of land. Ex.D.2 is the RTC in respect of Sy.No.22/3 which stands in the name of Muniraju during the year 2008-09 in respect of 10 guntas of land based on the Sale Deed dated 27.12.2006 and change of khatha in M.R.No.2/2006-07. Ex.D.3 is the Mutation Register copy for change of khatha in the name of defendant from the name of Gangamma. Ex.D.4 is the certified copy of the GPA dated 8.7.2003 executed by Gangamma @ Ganganarasamma, G.Gopala and Chikkagopala, Hanumakka, Munirathnamma in favour of the defendant herein in respect of 10 guntas of land in Sy.No.22/3. Ex.D.5 is the Affidavit dated 8.7.2003 executed by the aforesaid five persons stating that they have sold the property of 10 guntas of land in Sy.No.22/3 of Chokkasandra Village, which is their ancestral property in favour of this defendant K.Muniraju for Rs.2 Lakhs and received the amount and handed over the possession to him. Admittedly, sale deeds of respective plaintiffs are executed by G.Gopala and Chikkagopala and Gangamma @ Ganganarasamma has not joined to execute this sale deed. The plaintiffs have not examined their vendor to prove the existence of suit schedule sites. Ofcourse, in sale deed of defendant there is no recital about Exs.D.4 and D.5, but when the plaintiffs are claiming sites, it is the plaintiffs who have to prove the existence of suit schedule properties within the boundaries mentioned therein. Ofcourse, it is well settled and as per Section 47 of the Indian Registration Act, the earlier registered document prevails over the subsequent registered document. But, if it is with respect to the same property. As I have already discussed, it is not clear either in the plaint or in the evidence or in the sale deeds, in which survey number the said sites are situated. So, even if the sale deeds of respective plaintiffs are much prior to the sale deed of defendant, it does not help the plaintiffs to prove the location of the suit schedule properties.
45. The defendant has produced Ex.D.6 which is the Sale Deed dated 16.10.1978 said to have been executed by Muniyappa @ Gullappa in favour of Venkatappa S/o.Chokkappa Chokkasandra in respect of Site No.2 carved in Sy.No. 22/3 of Chokkasandra Village measuring East - West 41.45 Meters and North - South 12.19 Meters bounded by East - Sarakari Halli, West - Site No.1, North - Kempaiah's land and South - Muniyappa's land. Ex.D.7 is the certified copy of the Sale Deed dated 16.10.1978 executed by Muniyappa @ Gullappa in favour of Venkatappa in respect of Site No.1 carved in Sy.No.22/3 of Chokkasandra Village measuring East - West 41.45 Meters and North - South 12.19 Meters bounded by East - Site No.2, West - Rangappa's land, North - Hanumanthappa's land and South
- Kempaiah and Hanumanthappa's land.
46. Ofcourse, as argued by the learned advocate for plaintiffs, based on these sale deeds there is no doubt to say that the sites were in existence in Sy.No.22/3 since long back. But, based on these documents it cannot be said that these sites are situated in Sy.No.22/3 measuring 10 guntas which the defendant is claiming right or the suit schedule sites are situated in this survey number.
47. Ofcourse, respective plaintiffs have produced Form No.3 in respect of Payment of Tax under Self Declared Property Assessment Tax. This document no way helps the plaintiffs to prove that the suit schedule sites are situated in Sy.No.22/3. When the defendant has disputed the location of the suit schedule sites, the plaintiffs have not made any efforts to identify the properties through the process of Court. But, in O.S.No.2467/2009 the learned advocate for defendants (who are the plaintiffs in other suits) have filed an application under Order 26 Rule 9 C.P.C. praying to appoint Court Commissioner to conduct the local inspection of suit schedule property which is 10 guntas of land in Sy.No.22/3, contending that the said plaintiff set up a plea that suit schedule property is an agricultural land totally measuring 10 guntas and it is used for agricultural activities. But, no application is filed by the respective plaintiffs to get identified their respective suit properties though the defendant denied their right over the respective suit properties and also their existence. When the initial burden is on the plaintiffs to prove that the suit schedule sites are in existence and they are situated within the boundaries mentioned in the sale deed, the plaintiffs who have not taken proper steps to get identify the existence of sites. Plaintiffs cannot take any advantages of lacuna either in the written statement or in the evidence of the defendant. Mere production of sale deeds is not sufficient to show that the suit schedule sites are situated within the boundaries mentioned therein or its identification.
48. It is the argument of the learned advocate for plaintiffs that when the suit schedule properties are now within the jurisdiction of BBMP, the revenue land looses its character as agricultural land. Hence, no conversion is required. For which the learned advocate relied upon the decision reported in ILR 2012 KAR 3428 -M.Muninarayana Swamy and another Vs. State of Karnataka.
49. But, it is not the case of the plaintiffs that when the suit schedule sites were carved, the property was within the limits of BBMP. Exs.D.6 and D.7 are of the year 1978-79, at that time Sy.No.22/3 was not within the jurisdiction of BBMP. Further there is no document on the part of the plaintiffs to show that Sy.No.22/3 measures only 10 guntas, not more than that. Ofcourse, the defendant contended that he purchased 10 guntas of land in Sy.No.22/3 of Chokkasandra Village and he has also not stated what is the total extent of Sy.No.22/3. But, it is the plaintiffs who have to prove that Sy.No.22/3 measures only 10 guntas and out of that, the suit schedule sites are formed. When P.W.1 in the respective suits deposed that they do not know whether there is formation of sites in Sy.No.22/3, the learned advocate for plaintiffs cannot argue that the suit schedule sites are situated in Sy.No.22/3 measuring 10 guntas. Therefore, the aforesaid decision no way helps the plaintiffs to prove their possession over the suit schedule properties.
50. It is further argued by the learned advocate for plaintiffs that as per Section 5 of the Transfer of Property Act and Section 54 of the Registration Act and Section 17 of Power of Attorney Act, the transfer of immoveable property can be made by Registered document and cannot be made by general power of attorney or affidavit. The defendant cannot acquire any right over the alleged 10 guntas of land in Sy.No.22/3 under Exs.D.4 and D.5. For which the learned advocate for plaintiffs also relied upon the decision reported in AIR 2012 Supreme Court 206 - suraj Lamp and Industries Pvt. Ltd., Vs. State of Haryana and another.
51. Herein, the defendant claims that he is the absolute owner of the suit schedule property having purchased the same under the Sale Deed dated 11.8.2006 and as per Affidavit and GPA dated 8.7.2003. It is true that either Affidavit or GPA do not create any right over the immoveable property. It is only the registered document which creates right and title over the suit schedule property. So, Exs.D.4 and D.5 do not convey any right or title over the 10 guntas of land in Sy.No.22/3 in favour of defendant. But, he has not only relied upon Exs.D.4 and D.5, but there is a sale deed as per Ex.D.1 in his favour.
52. It is further argument of the learned advocate for plaintiffs that in a suit for injunction, Court need not go into the question of title. For which, the learned advocate for plaintiffs also relied upon the decisions reported in KLJ 1982 (2) 301 - Venkatarayappa.M. & Ors., Vs. B.V.Laxmi Narayana and AIR 2008 Supreme Court 2033 - Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by L.Rs and Ors.
53. It is well settled that in a suit for injunction, the Court need not decide the question of title. But, when the defendant disputes the title of plaintiffs over the suit schedule properties and the very existence of suit schedule properties, the burden lies upon the plaintiffs to prove their title as well as the identity of the suit schedule sites. But, herein the plaintiffs have not sought for declaration of their title and they have also not made any attempt to get identify the suit property through the process of Court. Further, the plaintiffs are not claiming possession based on the sale deeds. When that is the fact, it is the plaintiffs who have to prove that they are in possession of the suit schedule properties within the boundaries mentioned therein. But the plaintiffs have not proved the same. So, these decisions no way help the plaintiffs.
54. The defendant who sought for permanent injunction in O.S.No.2467/2009 (plaintiff) in all other cases contended that he purchased agricultural land in 10 guntas in Sy.No.22/3. As I have already discussed in earlier part of this Judgment on this issue, that neither the plaintiff nor this defendant nowhere stated whether Sy.No.22/3 measures only 10 guntas or it is a portion of the land in said survey number property. In Ex.D. 4 and 5 it is recited that, which reads thus : -
"¸ÀªðÉ £ÀA§gï 22-3 gÀ°ègÀĪÀ d«Ää£À ¥ÉÊQ 10 UÀÄAmÉ d«ÄäUÉ......"
55. So, it is very clear that 10 guntas of land is the portion of Sy.No.22/3. In the RTC produced by the defendant in all the cases in respect of Sy.No.22/3, the name of this defendant found in respect of 10 guntas and even the name of one G.Gopal S/o. Muniyappa @ Gullappa found place. But, against his name, the extent of land is not shown in column No.9. The defendant has not produced any document to show that Sy.No.22/3 do not contain any more land. Further, Ex.D.6 and D.7 which are the sale deeds of the year 1978-79 reveal that the father of his vendor has sold the site in Sy.No.22/3. When such being the fact, how there could be a agricultural land in the year 1995 has not been explained by the defendant. Further, to show that the property which he is claiming is situated within the boundaries mentioned in his sale deed he has not produced any document. Therefore, I hold that the defendant has also failed to prove that 10 guntas of land in Sy.No.22/3 which he is claiming is situated within the boundaries mentioned in his sale deed and as shown in the plaint schedule.
56. When the respective plaintiffs and defendant have failed to prove the identity and location of the properties which they are claiming based on the revenue records which are only the documents for the purpose of receiving the tax, which do not help the respective parties to say that they are in possession and enjoyment of the respective properties.
57. In view of these discussions, I hold that the plaintiffs have failed to prove their possession over their respective suit schedule sites. Hence, I answer this issue in all the negative.
58. Issue No.2 in all the cases : - Plaintiffs in the respective suits have made allegation of interference to their possession over their respective properties. But, when the plaintiffs have failed to prove Issue No.1 in respective suits, this issue do not survive for consideration. Hence, I answer this issue in the negative.
59. Issue No.3 in O.S.Nos.2364/2009, 2365/2009, 2366/2009 and 2467/2009 : - In view of my findings to Issue No.1 and 2, respective plaintiffs is not entitled for the reliefs as prayed for. Hence, I answer this Issue No.3 in these suits in the negative.
60. Issue No.3 in O.S.No.3131/2009: - the defendant in all the suits contended that the suit schedule property is not in existence and the plaintiffs have no right over the respective suit schedule properties. When such being the fact, the suit filed by not only this plaintiff, even by the other plaintiffs without seeking the relief of declaration of title is not maintainable. Hence, I answer this Issue No.3 in the negative.
61. Issue No.4 in all the suits :- In view of the above discussions, I proceed to pass the following:
ORDER All the suits filed by the respective plaintiffs are hereby dismissed.
Considering the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
Original Judgment shall be kept in O.S.No.2364/2009 and copy of the same shall be kept in O.S.Nos.2365/2009, 2366/2009, 2467/2009 and 3131/2009. (Dictated to the Judgment Writer and directly on computer, script corrected, signed and then pronounced by me in the open court, this the 21st day of February, 2017.) (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE O.S.No.2364/2009 List of witnesses examined on behalf of the plaintiffs in:
P.W. 1 : John Baptist Serrao List of documents exhibited for plaintiffs :
Ex.P.1 : Sale Deed dated 10.3.2004
Ex.P.2 : Self-declared property assessment register
extract.
Ex.P.3 : Property Tax Receipt issued by BBMP
Ex.P.4 : Sale Deed dated 5.3.2004
Ex.P.5 : Receipt issued by BBMP
Ex.P. 6 : NCR issued by Peenya Police Station.
List of witnesses examined for defendants:
D.W.1 : Muniraju.
List of documents exhibited for defendants:
Ex.D.1 : C/c of Sale Deed dated 11.8.2006
Ex.D.2 : C/c of RTC
Ex.D.3 : C/c of Mutation Register extract.
Ex.D.4 : C/c of GPA dated 8.7.2003.
Ex.D.5 : C/c of affidavit dated 8.7.2003.
Ex.D.6 & 7 : C/c of 2 sale deeds dated 16.10.78. Ex.D.8 : C/c of Order Sheet in O.S.No. 6331/2015.
O.S.No.2365/2009 List of witnesses examined on behalf of the plaintiff :
P.W. 1 : D.Basavaraja List of documents exhibited for plaintiffs :
Ex.P.1 : Sale Deed dated 10.3.2004
Ex.P.2 : Self-declared property assessment register
extract.
Ex.P.3 : Property Tax Receipt issued by BBMP
List of witnesses examined for defendants:
D.W.1 : Muniraju.
List of documents exhibited for defendants:
Ex.D.1 : C/c of Sale Deed dated 11.8.2006
Ex.D.2 : C/c of RTC
Ex.D.3 : C/c of Mutation Register extract.
Ex.D.4 : C/c of GPA dated 8.7.2003.
Ex.D.5 : C/c of affidavit dated 8.7.2003.
Ex.D.6 & 7 : C/c of 2 sale deeds dated 16.10.78.
O.S.No.2366/2009 List of witnesses examined on behalf of the plaintiffs :
P.W. 1 : John Baptist Serrao List of documents exhibited for plaintiffs :
Ex.P.1 : Sale Deed dated 10.3.2004
Ex.P.2 : Self-declared property assessment register
extract.
Ex.P.3 : Property Tax Receipt issued by BBMP
List of witnesses examined for defendants :
D.W.1 : Muniraju.
List of documents exhibited for defendants:
Ex.D.1 : C/c of Sale Deed dated 11.8.2006
Ex.D.2 : C/c of RTC
Ex.D.3 : C/c of Mutation Register extract.
Ex.D.4 : C/c of GPA dated 8.7.2003.
Ex.D.5 : C/c of affidavit dated 8.7.2003.
Ex.D.6 & 7 : C/c of 2 sale deeds dated 16.10.78.
O.S.No.3131/2009 List of witnesses examined on behalf of the plaintiff:
P.W. 1 : Uma Maheshwari List of documents exhibited for plaintiffs :
Ex.P.1 : Sale Deed dated 13.2.2004
Ex.P.2 : Self-declared property assessment register
extract.
Ex.P.3 to 7 : Challans for payment of tax.
Ex.P.8 : Property Tax Receipt issued by BBMP
Ex.P.9 : Acknowledgment for receipt of tax issued
by BBMP
Ex.P.10 : C/c of Sale Deed dated 4.12.2003.
Ex.P.11 : C/c of Sale Deed dated 16.2.2004
Ex.P.12 : C/c of Sale Deed dated 10.3.2004
Ex.P.13 ; C/c of Sale Deed dated 10.3.2004.
Ex.P.14 : C/c of Sale Deed dated 5.3.2004.
Ex.P.15 : C/c of Sale Deed dated 10.3.2004.
Ex.P.16 : C.D
Ex.P.17 to 22 : Photographs.
List of witnesses examined for defendants:
D.W.1 : Muniraju.
List of documents exhibited for defendants:
Ex.D.1 : RTC in respect of Sy.No.22/3
Ex.D.2 : Mutation Register extract.
Ex.D.3 : Sale Deed dated 11.8.2006.
Ex.D.4 : GPA dated 8.7.2003.
Ex.D.5 & 6 : C/c of 2 sale deeds dated 16.10.78.
O.S.No.2467/2009 List of witnesses examined on behalf of the plaintiff:
P.W. 1 : K.Muniraju List of documents exhibited for plaintiffs :
Ex.P.1 : C/c of Sale Deed dated 11.8.2006
Ex.P.2 : C/c of RTC
Ex.P.3 : C/c of Mutation Register extract.
Ex.P.4 : C/c of GPA dated 8.2.2003.
Ex.P.5 : C/c of affidavit dated 8.2.2003.
(Hemavathi)
XXXIX Additional City Civil & Sessions
Judge, Bangalore City.
***
Md/-