Bangalore District Court
Sri.K.Chalabandha Raju vs The Commissioner on 1 February, 2020
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS THE 1st DAY OF FEBRUARY 2020
Present: Sri.Manjunatha.G.A., B.A.L.,L.L.B.,
XXXV Addl.CC & SS Judge, Bengaluru.
O.S.No.4430/2013
Plaintiff : Sri.K.Chalabandha Raju,
S/o.Late Sri.Kondaiah,
Aged about 36 years,
R/o.House NO.164,
Belimatada Road, Bhakshi Garden,
Bangalore-560 053.
(By Sri.K.B.O., Advocate)
-Vs-
Defendants : 1. The Commissioner,
Bruhat Bangalore Mahanagara Palike,
Corporation Office,
Narasimaraja Square,
Bangalore-560 002.
2. Revenue Officer,
Chamarajpet Division,
Office of the Revenue Inspector
BBMP, Dr.T.C.M. Rayan Road,
Bangalore-560 053.
3. Asst.Revenue Officer,
BBMP Office, Chamarajpet Range,
2
Dr.T.C.M., Rayan Road,
Bangalore-53.
4. Joint Commissioner, West,
BBMP, Opp Mantri Mall,
Sampige Road, Malleshwaram,
Bangalore.
5. Sri.M.Venkatesh,
S/o.H.T.Muniyappa,
Aged about 60 years,
R/o.No.510, 2nd Main Road,
Bakshi Garden, Belimath Road,
Bangalore-560 053.
(Sri.P, Advocate for defendant Nos.
1 to 4, Sri.N.S.R./RAK, Advocate for
defendant No.5)
Date of institution of the suit : 20-6-2013
Nature of the suit : Injunction
Date of commencement of
recording of the evidence : 07-10-2017
Date on which the judgment was : 01-02-2020
pronounced
Total duration : Years/s Month/s Day/s
06 05 11
(MANJUNATHA.G.A.)
XXXV Addl.City Civil & Sessions
Judge, Bengaluru.
3
JUDGMENT
The Plaintiff has filed this suit against defendants for the relief of Permanent Injunction in respect of property bearing No.164.
2. In brief, case of the plaintiff is as follows:-
Plaintiff is the owner in possession of the house property bearing No.164, RCC built house measuring east to west 20ft and north to south 15ft consisting of three floors situated at Bhakshi Garden, Bengaluru. Plaintiff has purchased the said property from his vendor Sri.Jayaram on 25-4-2012. Consequently, Katha is mutated in the name of plaintiff. Plaintiff is paying tax. He is in possession of the suit property. The BBMP had allotted the said property in favour of the vendor of plaintiff. The vendor of plaintiff has paid a sum of Rs.5,600/- to BBMP. The fourth defendant has executed Sale Deed in the name of the vendor of plaintiff on 13-12-2011. Accordingly Katha was mutated in the name of the vendor of plaintiff. Accordingly the vendor of plaintiff was in possession of suit property. Though there is a pakka house in the suit property in the BBMP records, it is shown as a vacant property. Taking 4 advantage of the said situation, defendant No.5 filed Writ Petition before the Hon'ble High Court without making plaintiff and his vendor as parties. Defendant No.5 misrepresented that he is in possession of property No.164. Accordingly, the Hon'ble High Court directed allotment of property No.164 in favour of defendant No.5. Plaintiff and his vendor have questioned the same by filing Writ Appeal No.8390-94/2002(LB- BMP). Where under the Hon'ble High Court directed the BBMP authorities to proceed as per law after hearing plaintiff and his vendor.
Plaintiff is a bonafide purchaser. Defendant Nos.1 to 4 are trying to dispossess plaintiff from the suit schedule property. Defendant No.5 is also interfering with possession of plaintiff. On 18-6-2013, the 5th defendant again interfered with the possession of plaintiff and he tried to lock the door of the house. Therefore, pleading cause of action at Para No.12 of the suit, it is prayed to decree the suit for Permanent Injunction.
3. Defendant Nos.1 to 4 have appeared through their Advocate and filed Written Statement contending that the suit of plaintiff is not maintainable for want of notice under Section 482. Plaintiff is the owner 5 in possession of property bearing No.164, it consists of three floors is denied. Plaintiff has purchased the suit schedule property from Jayaram is denied. BBMP executed an Absolute Sale Deed on 13-10-2011 in favour of Sri.Jayaram, but subject to the condition that Jayaram shall not alienate the property for a period of 10 years from the date of registration. Said Jayaram has violated the condition. Hence, the Sale Deed of plaintiff is a voidable contract. Plaintiff is not a bonafide purchaser. Plaintiff is not in possession. At para No.5 of the Written Statement, there is a reference with regard to Orders passed in W.P.No.27463/2011 and Writ Appeal No.8390 - 8394/2012 (LB BMP). Rest of the plaint averments are denied. Cause of action pleaded to the suit is denied. It is contended that plaintiff has not approached the Court with clean hands. Therefore, it is prayed to dismiss the suit with cost.
4. Defendant No.5 has appeared through his Advocate and filed Written Statement. Plaintiff is the owner in possession of property bearing No.164 is denied. Plaintiff has purchased the said property from Sri.Jayaram on 25-4-2012 is denied. Jayaram was the owner in 6 possession of property bearing No.164 is denied. BBMP had allotted the suit property in favour of Jayaram is not within the knowledge of defendant No.5. 4th defendant has executed Sale Deed in favour of Jayaram on 14-10-2011 is not within the knowledge of defendant No.5. He has filed a false Writ Petition before the Hon'ble High Court is denied. He do not know the Order passed by the Hon'ble High Court in the Writ Appeal. Plaintiff is not a bonafide purchaser. He is not in possession of suit property. Defendant No.5 tried to interfere with possession of plaintiff is denied.
5. Defendant No.5 approached defendant No.1 for allotment of site bearing No.164 i.e., the suit property. The name of defendant No.5 finds a place at Sl.No.23 in the allotment letter. Defendant No.3 had intimated through a letter dated 3-7-2009 that property No.164 is vacant. But the same was not allotted to defendant No.5. Therefore, he filed W.P.No.27463/2011 for allotment of site No.164. It appears an undertaking was given by Smt.H.R.Shivamma, the Assistant Revenue Officer that site No.164 which has been allotted to Jayaram who has 7 taken another site and action will be initiated to cancel the Sale Deed of Jayaram and accordingly, they allot the site in favour of defendant No.5. During the pendency of the said Writ Petition, defendant Nos.1 to 4 have created Sale deeds dated 13-12-2011 and 25-04-2012. Therefore, plaintiff is not in lawful possession of the suit schedule property. Suit schedule property has to be allotted in his name. The suit of plaintiff for Permanent Injunction without seeking declaration of title is not maintainable. The Sale Deed of plaintiff is not binding on defendant No.5. Accordingly, it is prayed to dismiss the suit with cost.
6. Based on the pleadings of the parties, the following issues are framed:-
1. Whether the plaintiff proves his lawful possession of suit property?
2. Whether defendant Nos.1 to 4 proves that plaintiff was not complied the Proviso Sec.482 of the KMC Act?
3. Whether the plaintiff proves the interference of defendant in suit property?8
4. Whether the defendant proves that plaintiff is not bonafide purchasers of the suit schedule property?
5. Whether the plaintiff is entitled for the relief sought for?
6. What order or decree?
7. Plaintiff is examined as P.W.1 and got marked Exs.P.1 to P.24.
Defendant No.5 is examined as D.W.1 and got marked Exs.D.1 to D.4. Revenue officer, Chamarajpet Division, BBMP is examined as D.W.2 on behalf of defendant Nos.1 to 5 and got marked Exs.D.5 to D.8.
8. Heard.
9. My findings to the above issues are as follows:-
Issue No.1 : In the affirmative
Issue No.2 : Does not survive for
consideration
Issue No.3 : In the affirmative
Issue No.4 : Not correctly framed
Issue No.5 : In the affirmative
9
Issue No.6 : As per final order for the following:-
REASONS
10. Issue No.2:- As could be seen from the first day order sheet dated 21-6-2013, my Predecessor in office passed a detailed Order dispensing notice under Section 80 CPC and under Section 482 of KMC Act. Accordingly, this issue does not survive for consideration.
11. Issue No.4:- Whether plaintiff is a bonafide purchaser or not will not fall for question in a proceeding like this. Question of considering the issue of bonafide purchaser will arise only in case of contract and in case of partition suits. This issue has been mistakenly framed. Accordingly, the issue No.4 is answered as not correctly framed.
12. Issue No.1:- The parties to the suit must aware that the suit of plaintiff is only for Permanent Injunction in respect of property bearing No.164. It is an admitted fact that 504 sites were formed for slum dwellers in Bhakshi Garden, Bengaluru. It is an admitted fact that at the first instance, 289 sites were allotted during 1976. 101 sites were 10 allotted during 1978. 23 sites were alloted for the 3 rd time during 1979. According to the plaintiff, during second phase of allotment of sites, property No.164 was allotted in favour of Sri.Jayaram. According to plaintiff, Sri.Jayaram has paid a sum of Rs.5,600/- the value of the site to BBMP. It is the case of plaintiff that after the allotment in the name of Sri.Jayaram, BBMP has executed a Sale Deed in his name on 13-12-2011. The said Sale Deed is marked at Ex.P.3. It is an original Sale Deed executed by defendant No.3 herein in favour of Jayaram in respect of property No.164. According to plaintiff, Sri.Jayaram sold the very same property in his favour on 25-04-2012 and the original Sale Deed is marked at Ex.P.1. The recitals at page No.2 of the Sale Deed reads like this:-
"ನವವವಶನ ಸಸಖವಖ 164 ಪಪ ಪಶಶಮ 20-0
ಅಡಗಳಳ, ಉತತರ ದಕಕಣ 15-0 ಅಡಗಳ
ಅಳತವಯಳಳಳ ನವವವಶನ ಮತಳತ ಇದರಲಲ ಕಟಟರಳವ
ಮನವಯ ಸಹತವವದ ಸಸರ ಸಸತತನ"
As on the date of purchase by plaintiff there was a pakka constructed house over property No.164. Accordingly, plaintiff has paid a sum of Rs.8,00,000/- towards sale consideration. There is a clear 11 recital in Ex.P.1 that possession is handed over by Jayaram in favour of plaintiff. The photographs showing existence of pakka building over property No.164 are produced at Exs.P.4 and P.5. The said photographs have not been disputed by defendant Nos.1 to 5. Based on Ex.P.1 - Sale Deed, Katha is mutated in the name of plaintiff on 22-6-2012. The sale in favour of plaintiff is reflected in the encumbrance certificate produced along with Ex.P.2 at column No.6. Katha extract and Katha certificate are mutated in the name of plaintiff as per Exs.P.6 & P.7. Exs.P.6 & P.7 are for the year 2017. Ex.P.8 is for the year 2013. In this document also, the name of plaintiff is appearing in respect of suit property. Exs.P.9 & P.10 are the Katha certificate and Katha extract pertaining to suit property in the name of plaintiff for the year 2015. Exs.P.11 to P.15 are the tax paid receipts paid by plaintiff continuously from the date of purchase till date. The main grievance of defendant Nos.1 to 4 is that there is a non alienation condition in Ex.P.3 - Sale Deed. Therefore, the sale in favour of plaintiff is void. Ex.P.3 is dated 13-12-2011. This Sale Deed is executed by defendant No.3 in favour of Sri.Jayaram. At page 12 No.2, condition No.1 reads like this:-
"1. ಶಳದದ ಕಕಯ ಪತಕವನಳನ ನವಡಳವವಗ, ಕಕಯಪತಕ ನವನಸದವಯಸದ ದನವಸಕದಸದ ಸಸತತನಳನ ಹತಳತ ವಷ ಅವಧಯವರವಗವ ಮವರವಟ ಮವಡಬವರದವಸಬ ಅಸಶವನಳನ ಕಕಯಪತಕದಲಲ ಅಳವಡಸತಕಕದಳದ."
It is only a direction (guideline) to impose a condition in the Sale Deed. But as per this condition, Sri.Jayaram was not restrained from alienating property for a period of 10 years. In this regard, the Learned Counsel for plaintiff invited the attention of Court to Ex.P.16, wherein a decision was taken by the Government to directly execute the Sale Deed in favour of the allotees. Earlier to this Order, vide Ex.P.16 a Lease cum Sale Agreement used to be executed for a period of 10 years and later, a Regular Sale Deed used to be executed. As per Ex.P.16, the said restriction was relaxed. It is thereafter, Ex.P.3 - Sale Deed is executed. Therefore, in a strict sense, there is no non-alienation condition in Ex.P.3. Even otherwise, the present suit is filed for the relief of Permanent Injunction. As per Ex.P.3, possession of suit property is delivered in favour of Jayaram by BBMP. As per Ex.P.1 Sri.Jayaram delivered possession in favour of plaintiff. The very BBMP authorities have 13 effected Katha in the name of plaintiff as per Exs.P.6 to P.10. The very defendant Nos.1 to 4 have collected tax from plaintiff as per Exs.P.11 to P.15.
13. D.W.2 who is examined on behalf of defendant Nos.1 to 4 at para No.5 in the first two lines of second Para has deposed like this:-
"The structure found in Ex.P.4 is the suit schedule property. It is true to suggest that we have issued Katha as per Exs.P.6 to P.9. D.W.1 has further deposed like this:-
"It is true to suggest that plaintiff is paying tax. It is true to suggest that BBMP has executed a Sale Deed in respect of site No.164 in favour of Jayaram as per Ex.P.3 on 13-12-2011. It is true to suggest that in Ex.P.3, there is a resolution dated 18-2-1978 to allot property in favour of Jayaram. It is true to suggest that there is also a Government Order on 3-4-1980".
This goes to show that plaintiff is in settled possession of suit property.
14. D.W. 1 that is defendant No.5 at page No.6 of his cross- 14 examination has deposed that earlier he was residing at property No.475. He has stated that he was in unauthorised possession and he had put up a house over the said property. He admits that the said property belongs to Corporation. At page No.7 in the first line, D.W.1 has deposed like this:-
"It is true to suggest that plaintiff is in possession of Ex.P.4 - house".
But in the next line, he has deposed like this:-
"Later witness says, he do not know".
It is not the case of defendant No.5 that suit property is allotted in his favour. It is not the case of defendant No.5 that BBMP has executed a Sale deed in his favour in respect of suit property. The very D.W.1 has deposed like this:-
"BBMP has not allotted any site in my favour till date".
Therefore, defendant No.5 has no semblance of right, interest over suit property. He is unnecessarily interfering with the possession of 15 plaintiff. As discussed earlier, he had put up construction over property bearing No.475.
15. D.W.1 in his cross-examination admits Ex.C.1 when confronted. After marking of the said document, D.W.1 has gone to the extent of saying that he has doubt about his signature. This is the attitude of defendant No.5. As per Ex.C.1, defendant No.5 had put a house in property bearing No.475. But he had entered into settlement with one Ganganna for a sum of Rs.75,000/-. As per this Ex.C.1, he has received a sum of Rs.30,000/-. But this witness denied to have filed any suit with regard to property bearing No.475. Plaintiff has produced Ex.P.21 which is the certified copy of the plaint in O.S.No.4865/1995. Defendant No.5 had filed the said suit against the Commissioner, the Assistant Revenue Officer and Sri.Ganganna the person who is referred in Ex.C.1 document. The said suit was in respect of property bearing No.475 only. Defendant No.5 had filed I.A.No.2 under Order 39 Rule 1 and 2 in the said suit and the same is marked at Ex.P.22. In the said suit, defendant No.5 filed objection to one of the I.A and the same is marked at Ex.P.23. Therefore, 16 defendant No.5 all along was fighting for property bearing No.475. But, accordingly, he filed a suit as per Exs.P.21 to P.23. But as per Ex.C.1, there is a settlement between defendant No.5 and Ganganna. Now, the said suit is dismissed for non prosecution.
16. Defendant No.5 is mainly relying upon the Orders passed by the Hon'ble High Court in Ex.D.1, i.e., in W.P.No.27463/2011 on 3-10- 2012. Defendant No.5 has produced the Order passed in the said Writ Petition. As per Page No.2 of the said Writ Petition, the Writ Petition was filed to direct respondents wherein to issue Katha in respect of site No.475. In the said Writ Petition, plaintiff nor his vendor are parties. But the Learned Counsel representing respondents orally submitted before the Hon'ble High Court that site No.164 is vacant and the same will be allotted in favour of defendant No.5. Petitioner has produced Ex.P.20 - Writ Petition copy filed in the said proceedings. The prayer column of the said Ex.P.20 discloses that defendant No.1 herein had filed the same to direct respondents therein to issue Katha in respect of site No.475. But the schedule shown in the said petition is property bearing No.164. This 17 goes to show that defendant No.5 is greedy. At one stretch, he is claiming
475. He also wants property No.164. Plaintiff also produced an endorsement issued by defendants as per Ex.P.18 dated 17-11-2014. As per this endorsement, BBMP had decided to allot sites to 146 beneficiaries. Along with the endorsement, plaintiff has also produced the list of beneficiaries at Ex.P.19. The first name in the list is defendant No.5 in respect of site No.412. This is the deposition of D.W.1 at page No.8 of his cross-examination.
It is false to suggest that site No.412 is allotted in my name If the said site is allotted by BBMP, I have no objection to take the same.
D.W.1 is aware about Exs.P.18 & P.19. At page No.8 D.W.1 - defendant No.5 has deposed like this:-
"It is true to suggest that the house of plaintiff is more than 15 years old".
This is a clear admission admitting possession of plaintiff over suit property. Defendant No.5 is banking upon the Orders passed upon Ex.D.1. But as per Ex.D.2 itself, there is a modification to the Order passed under Ex.D.1. It is thereafter, defendants have selected defendant 18 No.5 as a beneficiary as per Ex.P.19. Therefore, defendant No.5 has no right or interest over the suit schedule property. Plaintiff has established his possession over the suit property as on the date of this suit. Accordingly, his possession has to be protected. In the result, issue No.1 is answered in the affirmative.
17. Issue No.3: - The tenor of cross-examination by defendant No.5 and defendant Nos.1 to 4 goes to show that there is a interference by them in respect of suit schedule property. Defendant Nos.1 to 4 are denying the very sale in favour of plaintiff. Defendant Nos.1 to 4 are not whole heartedly accepting Ex.P.3 - Sale Deed. Defendant No.5 who is not a allottee is also trying to interfere with the possession of plaintiff. Plaintiff has pleaded with regard to cause of action. The same is proved by oral evidence. Accordingly, issue No.3 is answered in the affirmative.
18. Issue No.5:- In view of findings on other issues, plaintiff is entitled for Permanent Injunction. Accordingly, issue No.5 is answered 19 in the affirmative.
19. Issue No.6:- In view of findings on issue Nos.1 to 5, I proceed to pass the following:-
ORDER Suit of the plaintiff is decreed with cost. Defendant Nos.1 to 5 are restrained from interfering with possession of plaintiff over suit property permanently.
Draw Decree Accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 1st day of February 2020) (MANJUNATHA.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru 20 ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : Sri.Chalabandha Raju Witnesses examined on behalf of the defendants.
D.W.1 : Sri.M.Venkatesh
D.W.2 : Smt.Varalakshmamma
Documents marked on behalf of the plaintiff.
Ex.P.1 : Original Registered Sale deed
dated 25-4-2012
Ex.P.2 : Mutation Extract
Ex.P.3 : Original Registered Sale Deed
dated 13-12-2011
Ex.P.4 : Photograph
Ex.P.5 : Photograph
Exs.P.6 : Katha Certificates (5)
to P.10
Exs.P.11 : Tax paid receipts (5)
to P.15
21
Ex.P.16 : Resolution Deed dated 7-2-2009
Ex.P.17 : Copy of circular dated 5-5-2009
Ex.P.18 : Endorsement dated 17-11-2014
Ex.P.19 : List of beneficiary
Ex.P.20 : Copy of Writ Petition
Ex.P.21 : Certified copy of O.S.No.4865/1995
Ex.P.22 : Certified copy of I.A.No.2 in
O.S.No.4865/1995
Ex.P.23 : Signature
Ex.P.24 : Death Certificate
Documents marked on behalf of the defendant.
Ex.D.1 : Certified copy of the Order
passed in W.P.No.27463/2011
Ex.D.2 : Certified copy of the Writ Appeal
Nos.8390 -8394/2012
Ex.D.3 : Certified copy of the Order passed
in C.C.No.660/2014
Ex.D.4 : Certified copy of the Lease cum Sale
Agreements
22
Ex.D.5 : Certified copy of the Sale Deed
dated 13-1-2011
Ex.D.6 : Lease cum Sale Agreement
dated 5-4-2006
Exs.D.7 : Orders passed in W.A.No.8390 - 8394 & D.8 of 2012 Ex.C.1 : Settlement Agreement (MANJUNATHA.G.A.) XXXV Addl.City Civil & Sessions Judge, Bengaluru 23