Bangalore District Court
Sri.Darshan D Reddy vs Smt. Chandini Venkatesh on 17 February, 2023
1
O.S.No.7974/2017
KABC010287402017
IN THE COURT OF THE LX ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH 61)
:Present :
Sri. Narashimsa M.V. B.Com., LL.B.,
LX Addl. City Civil & Sessions Judge,
Bengaluru
Dated: This the 17 th day of February, 2023
: O.S.No.7974/2017:
PLAINTIFFS:- Sri.Darshan D Reddy,
Aged about 28 years,
S/o Damodar P. Reddy,
Presently residing at No. 39,
19th Cross, 7th Main Road,
N.S. Palya, B T M 2nd Stage,
Bengaluru - 560 076
(Rep. By Sri. A G V-, Advocate)
Vs.
DEFENDANTS:- 1. Smt. Chandini Venkatesh,
W/o Venkatesh Ranga,
Aged about 50 years,
Residing at Flat No. 102,
Sitara Apartments,
Near Novel Business Center,
B.T.M. 1st Stage,
Bangalore - 560 068,
2. Sri. D. Omprakash,
S/o Late Dattatreyaswamy,
Aged about 53 years,
2
O.S.No.7974/2017
R/at No. 100, 2nd Main,
3rd Cross, New Extension,
Madiwala, Bangalore - 560 068.
(Rep. By Sri.M N K -, Advocate)
Date of institution of the suit : 23/11/2017
Nature of the suit : Injunction suit
Date of commencement of : 13/01/2020
recording of the evidence
Date on which the Judgment : 17/02/2023
was pronounced.
: Year/s Month/s Day/s
Total duration
05 02 24
JUDGMENT
Plaintiff has filed this suit for grant of permanent injunction restraining the defendants, their agents, servants or anybody acting under them from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property along with his tenants together with costs.
2. The plaint averments in brief are as under;
Plaintiff is the absolute owner in peaceful possession and enjoyment of property bearing No. 76, Old No. 35, Katha No. 251, Bommanahalli C.M.C Katha No. 407/35/76, the then BBMP Katha No. 407/407/407/35/76 old PID No. 407/35/74 situated at Garvebhavi Palya, Begur Hobli, Bangalore South Taluk, presently 3 O.S.No.7974/2017 comes under the BBMP limits, Bengaluru, now situated in 7 th Cross, 6th Main, Hosur Main Road, Garvebhavi Palya, Bengaluru measuring 30 x 45 feet as mentioned in schedule.
3. Plaintiff's mother Smt. D. Nagarathnamma during her life time had purchased the suit schedule property through registered sale deed dated 12.3.1985 vide Registered document No. 7637/1984-85 of Book-I, Volume No. 2282 pages 8 - 51, in the office of the Sub registrar, Bangalore and was in lawful possession and enjoyment of suit schedule property, said Nagarathnamma has bequeathed the suit schedule property by executing a registered Will in favour of her only son /plaintiff herein on 10.1.2013, she died on 1.2.2013, thereafter, Will came into force and plaintiff became the absolute owner of suit schedule property and got transferred the Katha to his name.
4. It is further averred that 1 st and 2nd defendants are the own sister and brother of plaintiff's mother Smt. Nagarathnamma, after the demise of plaintiff's mother, due to preoccupation, in the year 2014 plaintiff has given a unregistered GPA in favour of first defendant to look after, supervise and mange the suit schedule property and handed over the original registered sale deed, Will, 4 O.S.No.7974/2017 Katha certificate to the custody of first defendant. Subsequently, first defendant by colluding with second defendant let out back portion of 16 x 30 feet AC sheet shed to M/s Micro Spark Tech, rep by Mr. B.G.Eranna by collecting the rents, thereafter on 18.7.2017 plaintiff cancelled/ revoked the said unregistered GPA by issuing a letter dated 18.7.2017 by paper publication and called upon defendants to return all the original documents, even till date, defendants did not choose to return the said original documents.
5. Thereafter plaintiff let out front portion of the suit schedule property to one Zaheer Ahmed owner of M/s Shaans Car Accessories, measuring 10 x 12 feet of A.C. Sheet roofed shed under rental agreement dated 25.6.2017. Plaintiff got issued legal notice dated 18.11.2017 to the back portion tenant i.e., M/s Micro Spark Tech to quit, vacate and hand over the vacant possession of the said portion of suit schedule property to plaintiff through RPAD. Plaintiff once again got issued legal notice dated 22.11.2017 calling upon first defendant to return original documents, but on 8.11.2017 defendants came near the suit schedule property along with their henchmen and tried to interfere and obstruct the plaintiff and his tenants from doing business, at that time plaintiff with the help of his tenants resisted the illegal acts of defendants and lodged 5 O.S.No.7974/2017 a complaint before Bommanahalli Police. Thereafter, plaintiff having no other alternative approached this court seeking the relief of permanent injunction, restraining the defendants.
6. Upon registration of this suit, summons were issued to defendants through Court, Sri. MNK advocate filed Vakalath for defendant Nos.1 and 2. Defendant No.1 and 2 filed Written statement.
7. In written statement defendants No.1 and 2 have stated that suit filed by plaintiff is not maintainable, they admit the averment that plaintiff's mother Smt. Nagarathnamma was in possession and enjoyment of suit schedule property and Smt. D Nagarathnamma has bequeathed the suit schedule property in favour of plaintiff by executing registered Will dated 10.1.2013. Defendant No.1 and 2 have stated that under the advice and instruction defendants agreed to put up construction on the suit schedule property, plaintiff raised hand loans from the defendants in order to put up construction, plaintiff had executed rental agreement in favour of first defendant and her mother Jayalakshmi in respect of two shop premises and it was an oral agreement between them regarding payment of loan amount for 20 years, but suppressing all the facts 6 O.S.No.7974/2017 plaintiff has filed the above case for a permanent injunction against the defendants.
8. It is further stated that defendants are ready to hand over the original registered sale deed and other original documents to custody of plaintiff provided entire construction loan amount is paid. Plaintiff in order to avoid paying court fee by suppressing the true facts filed this above case instead of filing a suit for recovery of possession or ejectment suit. With regard to para No.9, the subject matter of suit is of cash transaction and dispute of the property and the same can be resolved in the suit for recovery and not this suit. Defendants deny the averments made in paragraph No. 10, 11, 12 and 13 of plaint . Since defendants are in physical possession of the suit schedule property by virtue of Rental Agreement executed by plaintiff and original title deeds were deposited with the first defendant towards security for amount spent on construction of the premises on the schedule property. Hence prayed to dismissal of the suit.
9. Along with suit IA-1 u/O XXXIX Rules 1 and 2 praying for an exparte order of temporary injunction was filed, vide orders dated 5.12.2017 emergent notice was issued for IA-1, defendants No.1 7 O.S.No.7974/2017 and 2 were served, they filed their written statement and objection to IA-1. Defendants with written statement filed five documents, issues were framed on 22.9.2018, counsel for plaintiff submitted that IA-1 be dispose along with this suit.
10. Plaintiff filed examination-in-chief on 13.1.2020 reiterating on oath entire averments made in the plaint. Case was posted for cross-examination of PW1 to 18.2.2020, 9.7.2020, 21.8.2020, 9.10.2020, 5.1.2020, defendants remained absent, Court notice was issued to defendants, even thereafter defendants remained absent. For cross examination of PW1, case was once again adjourned to 23.1.2021, 3.3.2021, 6.4.2021, 28.6.2021, 16.8.2021, 22.10.2021, 22.12.2021, 4.3.2022, 18.4.2022 and 16.6.2022, counsel for defendant on 16.6.2022 prayed time for cross examination of PW1 by imposing cost of Rs.300/-, it was adjourned to 12.7.2022, defendant and counsel remained absent, cross-examination of PW1 was taken as nil. Case was posted for defendants evidence to 18.7.2022 and 20.8.2022. Plaintiff filed application to lead further evidence, defendant did not file objection to IA-5 to 8, on 19.11.2022 objections were taken as not filed, thus IA-5 to 8 were allowed. Ex.P36 to P5 were marked, defendant and counsel remained absent, cross-examination was taken as nil.
8
O.S.No.7974/2017
11. Case stood posted for defendants evidence to 13.12.2022 and 10.1.2023, defendant and counsel remained absent, evidence of defendants was taken as nil. Plaintiff filed written argument on 16.1.2023, on 23.1.2023 arguments of defendants was taken as nil.
12. Based on the pleadings of parties, on 22.9.2018, my learned predecessor has framed the following issues:
ISSUES
1) Whether the plaintiff proves that he is in lawful possession and enjoyment of suit property as on the date of the suit?
2) Whether the plaintiff proves the illegal interference of defendants over suit property?
3) Whether the suit is not maintainable in the present form?
4) Whether the plaintiff proves that he is entitled for relief claimed ?
5) What order or decree?9
O.S.No.7974/2017
13. Heard the arguments of learned counsel for plaintiff. After going through the pleadings of the parties exhibits marked on behalf of plaintiff, documents produced by defendants along with written statement, after perusing the written arguments filed by plaintiff, I proceed to answer the above issues as under:
Issue No.1 : In the affirmative Issue No.2 : In the affirmative Issue No.3 : In the Negative.
Issue No.4 : In the affirmative Issue No.5 : As per final order for the following:
14. Issue No.1: Contention of plaintiff is that, he is the absolute owner of the suit schedule property, having acquired the same. It is the contention of plaintiff that his mother Smt. D. Nagarathnamma became absolute owner of suit schedule property vide sale deed dated 12.3.1985, certified copy of the same has been marked as Ex.P1. Ex.P2 is the certified copy of Will dated 10.1.2013 executed by D. Nagarathnamma in favour of her son (plaintiff), it is admitted by defendant No.1 and 2, who are sister and brother of D. Nagarathnamma that the suit schedule property was 10 O.S.No.7974/2017 belonging to D. Nagarathnamma, later on she has executed Will in favour of plaintiff.
15. Suit schedule property as described in the plaint discloses that it is a commercial premises having A.C. sheet roofed 3 portions with all civic amenities. Ex.P3 and P4 is the Khata extract and certificate pertaining to the year 2017-18, it discloses that plaintiff is owner of the same.
16. Ex.P5 is tax paid receipt, Ex.P7 is the water bill issued by BWSSB, dated 3.10.2017, in which name of plaintiff is shown as consumer. Further, plaintiff has produced Ex.P8 tax paid receipt for the year 2018-19, which discloses that schedule property is being used for non residential purpose. Ex.P9 to P14 are electricity and water bills, which show the name of plaintiff as consumer. These documents clearly establish that plaintiff being the owner is paying taxes to the concerned authorities, water and electricity connection provided to the schedule property stands in the name of plaintiff.
17. It is necessary to note here that PW1/plaintiff has not cross-examined by learned counsel for defendants No.1 and 2 nor have defendants led evidence. Though defendant No.1 and 2 have filed written statement in the absence of evidence being led by them, 11 O.S.No.7974/2017 as PW1 has not been cross-examined by them, the defence set up in written statement pales into insignificance.
18. It is necessary to note that defendants in their written statement have contended that the original documents of suit schedule property are in their possession, it is the contention of defendants that plaintiff depositing title deeds with defendants No.1 and 2 as defendant No.1 and 2 put up construction in the suit schedule property, it is the contention of defendant No.1 and 2 that mother of defendant No.2 is residing in the hind portion of suit schedule property, plaintiff is not at all in possession or enjoyment of suit schedule property, court fee paid by plaintiff is inadequate, it is contended that plaintiff is not entitled to any relief.
19. In a suit for injunction, it is necessary for the plaintiff to demonstrate that as on the date of filing of suit, he is in lawful possession and enjoyment of the suit schedule property. This suit has been filed on 23.11.2017. At this juncture, it is relevant to note that on 18.7.2017, plaintiff has issued a legal notice, wherein, the General Power of Attorney executed by him in favour of defendant No.1 has been revoked. In the said notice, it is stated that paper publication is taken in newspaper as well, said newspaper is produced at Ex.P17 an 18.
12
O.S.No.7974/2017
20. Ex.P24 is the legal notice issued by plaintiff to M/s Micro Spark Tech represented by Sri. B. G. Eranna, in the said notice it is clearly averred that defendant No.1 as power of attorney holder of plaintiff executed a rental agreement in favour of Micro Spark Tech Ltd., . Under Ex.P24, the tenancy of M/s Micro Spark Tech has been terminated by plaintiff. At this juncture, it is necessary to note that plaintiff had filed Small Causes Case No.17/2018 on the file of 24 th Additional Small Causes Judge and 22 nd ACMM (SCCH-26) suit for the relief of ejectment. Said suit has been decreed vide Judgment dated 31.8.2018, plaintiff has filed Execution Petition No. 1727/2018 to enforce the decree passed in SC No. 17/2018, Ex.P31 is the order sheet in Execution Petition No. 1727/2018 which discloses that on 19.1.2019, possession of portion of suit schedule property in occupation of M/s Micro Spark Tech Ltd., has been handed over to plaintiff.
21. This aspect clearly discloses that during the pendency of this suit, plaintiff secured possession from tenant. Contention of defendants in written statement cannot be considered for the reason that they have not cross-examined P.W-1 nor have led evidence. For the sake of argument, if it were to be construed that defendants put up construction in the suit schedule property and let out the 13 O.S.No.7974/2017 premises to tenants, nothing prevented defendants No.1 and 2 to initiate necessary proceedings against plaintiff for recovery of amount or to file application in Execution Petition No. 1727/2018 u/O XXI Rule 97 of Cr.P.C. or any other provision. These aspects disclose that plaintiff is absolute owner of suit schedule property and he being in possession and enjoyment of the same has let out the premises to different tenants. At this juncture, it is necessary to refer to Ex.P37, which is the MoU executed by Palani in favour of Darshan Reddy/plaintiff, Ex.P38, the rental agreement dated 29.6.2017, executed by plaintiff in favour of Zaheer Ahmed in respect of one of the unit/portion situated in suit schedule property. Ex.P40 is the Bank statement of plaintiff it discloses that on 9.8.2017, Sri. Zaheer Ahmed tenant in Ex.P38 has paid rent to plaintiff, Bank statement further discloses that Zaheer Ahmed has piad rents to plaintiff on 9.8.2017, 17.10.2017, 9.11.2017, 14.12.2017, Sri. Palani has made payment on 6.10.2017, majority of these dates are prior to filing of the suit, which demonstrate that Zaheer and Palani are tenants under the plaintiff. Ex.P41 to P54 are the photographs of the suit schedule property, which discloses that there are commercial establishments in the suit schedule property.
14
O.S.No.7974/2017
22. Combined reading of pleadings and documents produced by plaintiff amply demonstrate that plaintiff is in peaceful possession and enjoyment of the suit schedule property and has let out the same to his tenants. Hence, I answer issue No.1 in the affirmative.
23. Issue No.2 and 3: According to the plaintiff, defendant No.1 and 2 tried to interfere with his peaceful possession and enjoyment on 18.11.2017 with their henchmen, plaintiff was able to resist illegal acts of defendants, defendants held out threat of dispossession, plaintiff has approached jurisdictional Bommana Halli Police Station for taking necessary action against defendants vide NCR No. 2761/2017.
24. At this juncture, it is necessary to note that prior to 8.11.2017, plaintiff had issued Ex.P15 legal notice under which the General Power of Attorney in favour of defendant No.1 was revoked and defendant No.1 was called upon to return original documents of suit schedule property, paper publication has been taken in newspaper, the tenant M/s Micro Spark Tech Ltd., inducted by defendant No.1 as GPA holder was issued notice on 18.11.2017. These aspects demonstrates that defendants No.1 and 2 have attempted to interfere with the peaceful possession and enjoyment of suit schedule property by plaintiff. Thus, plaintiff has filed this suit 15 O.S.No.7974/2017 for permanent injunction, suit as filed by plaintiff is maintainable as the relief claimed is for injunction simpliciter. Plaintiff has to protect his possession and also to prevent further interference by defendants. Remedy available to plaintiff is to file a suit for injunction simpliciter which has been done by way of filing this suit. Further the claim made by plaintiff has remained unchallenged in any manner, thus I answer issue Nos. 2 and 3 in the affirmative.
25. Issue No.4: In view of the findings on issue Nos. 1 to 3, plaintiff being the owner in possession of the suit schedule property, plaintiff having let out the suit schedule property in favour of his tenants, is entitled to the relief claimed in the suit. Hence, I answer issue No.4 in the affirmative.
26. Issue No.5: In view of the findings on issue No.1 to 4, I proceed to pass the following:
ORDER Suit of the plaintiff is decreed. By way of permanent injunction, defendants No.1 and 2, their agent, servants or anybody acting under them are hereby restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property along with his tenants. 16
O.S.No.7974/2017 Parties to bear their own costs. Draw decree accordingly.
(Dictated to Stenographer, transcribed by him, corrected and pronounced by me in the open court on this the 17 th day of February, 2023) (Narashimsa M.V.) LX Addl. City Civil & Sessions Judge, Bengaluru Annexures
1. List of witnesses examined on behalf of the Plaintiff/s:
PW1 Darshan D Reddy
2. List of witnesses examined on behalf of the Defendant/s:
NIL
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P.1 : Certified copy of the Registered sale deed.
Ex.P.2 : Certified copy of the Will
Ex.P.3 : Certificate issued by the BBMP
Ex.P.4 : Khatha Extract
Ex.P.5 : Tax paid receipt
Ex.P.6 : Encumbrance certificate
Ex.P.7 : Electricity bill
Ex.P.8 : Certified copy of Tax paid receipt
Ex.P.9 : Electricity Bill
Ex.p.10 : Water Bill
Ex.P.11 : Electricity Bill
17
O.S.No.7974/2017
Ex.P.12 : Water Bill
Ex.P.13 : Electricity Bill
Ex.P.14 : Water Bill
Ex.P.15 : Certified copy of the Letter dtd:18.07.2017
Ex.P.16 : Certified copy of the postal receipt
Ex.P.17 : Certified copy of the paper publication
Ex.P.18 : Certified copy of the paper publication
Ex.P.19 : Certified copy of the cash bill
Ex.P.20 : Certified copy of the letter dtd:22.11.2017
Ex.P.21 : Certified copy of the complaint settled reply
Ex.P.22 : Certified copy of the postal tract record
Ex.P.23 : Certified copy of the postal cover
Ex.P.24 : Certified copy of the legal notice
Ex.P.25 : Certified copy of the postal receipt
Ex.P.26 : Certified copy of the postal acknowledgment
Ex.P.27 : Certified copy of the postal card
Ex.P.28 : Certified copy of the Notice dtd:09.01.2018
Ex.P.29 & 30 : Certified copy of the Judgment and Decree of S.C. 17/2018 Ex.P.31 : Certified copy of the order sheet Ex.P.32 : Certified copy of the notice dtd:22.11.2017 Ex.P.33 & 34 : Postal receipts Ex.P.35 : Certified copy of the notice dtd:07.12.2017 Ex.P.36 : Attested Family tree with copy of affidavit Ex.P.37 : MOU dtd: 25.09.2017 Ex.P.38 : Rental agreement dtd: 29.06.2017 Ex.P.39 : Deed of cancellation of GPA dtd: 18.07.2017 Ex.P.40 : Bank statement 18 O.S.No.7974/2017 Ex.P.41 to : 14 Photographs Ex.P.54 Ex.P.55 : C.D.
4. List of documents marked on behalf of the defendant/s:
NIL LX Addl.City Civil & Sessions Judge, Bengaluru.