Bangalore District Court
Mr. P.Gopalakrishnan S/O ... vs Sri. Narayanappa S/O Late ... on 22 September, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
[
OS No.17467/2004
Dated this the 22nd day of September 2021
Plaintiff 1. Mr. P.Gopalakrishnan S/o Kunhikrishnana Nair,
Aged about 46 years, R/a No.266,
Omana Nivas, Subbannapalya,
Banaswadi Post, Bangalore-560 005.
(Rep by A.R Advocate)
V/S
Defendants 1. Sri. Narayanappa S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 50 years,
2. Sri. Nagaraj S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 45 years,
2(a) Since deceased represented by his LR.
Smt. Shashikala W/o Late C. Nagarajappa,
Aged about 47 years,
Residing at Horamavu Village & Post,
Near Mariyamma Temple Street,
K.R Puram Hobli, Bangalore East Taluk,
Bangalore-560 043.
3. Sri. Jayaram S/o Late Venkataswamapppa
@ Chikka Abbaiah, Aged about 40 years,
1 to 3 residing at: Horamavu Village,
K.R Puram Hobli, Bangalore-560 043.
4. Smt. Madireddy Sripadmavathi,
W/o Sri. Jagadish, Aged about 36 years,
2
Judgment O.S.No.17467/2004
R/o No.7, Scientist Hostel, C.V. Raman Nagar,
DRDO Township, Bangalore-560 093.
5. Sri. Y.N. Konda Reddy S/o Narayana Reddy,
Aged about 42 years, R/o No.83, Yerandahalli,
Hennagara Post, Anekal Taluk,
Bangalore-562106.
(Rep by Defendant No.1 to 3 Sri.PSN Advocate,
Defendant No.5-Sri. MRS Advocate, Defendant No.4-Exparte)
Date of Institution of the suit 18/12/2004
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.)
Permanent Injunction
Date of the commencement of recording of the Evidence 11/10/2006
Date on which the Judgment was pronounce 22/09/2021
Year/s Month/s Day/s
Total duration 16 09 03
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE.
:JUDGMENT:
The plaintiff filed suit against the defendants for permanent injunction.
2. The brief facts of plaint averments is as under: 3
Judgment O.S.No.17467/2004 The plaintiff submits that he is absolute owner of the suit schedule property mentioned below:-
:SUIT SCHEDULE PROPERTY:
All that piece and parcel of residential site bearing No.36 in portion of House List Khatha No.135/4 of Horamavu Village, K.R Puram Hobli, Bangalore South Taluk measuring East to West 40 feet, North to South 30 feet total area 1,200 square feets bounded by East: 25 feet existing Road, West: House No.27, North: House No.37, South: House No.35.
3. The plaintiff further submits that defendant No.1 to 3 formed layout of sites in northern portion of their land in Sy.No.81/2 to an extent of 1 acre 24 guntas in Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk (presently Bangalore East Taluk) during the year 1991. The defendants No.1 to 3 obtained house list numbers and khatha from local Horamavu Panchayat. The defendants 4 Judgment O.S.No.17467/2004 No.1 o 3 formed total number of 47 sites in said layout as per layout plan furnished to him and other site purchasers. The plaintiff further submits that he purchased site No.36 described in schedule from defendants No.1 to 3 under registered sale deed on 18/12/1991. The schedule property is residential site in portion of house list bearing No.135/4 in Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk. The jurisdictional Village Panchayat has assessed the schedule property as residential site and has issued khatha extract under form No.10 in his name in respect of schedule property and has collected up to date tax on the schedule property. The khatha extract in form No.10 in respect of schedule property is in his name. The defendants No.1 to 3 furnished khatha extract in form No.10 and copy of layout plan to him and other purchasers. With reference to the layout plan, he identified schedule property and purchased it from defendants No.1 to 3. The defendant No.4 is registered General Power of Attorney Holder of defendants No.1 to 3 5 Judgment O.S.No.17467/2004 helped defendants No.1 to 3 to form above said layout and canvassed site purchasers to buy sites in above said layout.
4. The plaintiff further submits that he and many other persons purchased sites in above said layout formed by defendants No.1 to 3 under registered sale deeds during the year 1991-92. All the sites in layout were sold to different persons and the purchasers including him were put in actual possession and enjoyment of sites purchased by them. The plaintiff submits that he and other purchasers are in peaceful possession and enjoyment of suit schedule property ever since they purchased the sites from defendants No.1 to 3 thirteen years ago. The defendants No.1 to 3 had formed layout as per layout plan in northern portion of their land in Sy.No.81/2 to an extent of 1 acre 24 guntas and had sold all the 47 sites formed in layout to various purchasers including him. Many purchasers have already constructed their houses in their respective sites in layout purchased from defendants No.1 to 3 after obtaining building license from local Horamavu Panchayat. That being the state of affairs on 6 Judgment O.S.No.17467/2004 21/12/2004 defendant No.5 appeared in layout claiming that he has purchased land in the year 2004 where the layout was formed thirteen years ago by defendants No.1 to 3 and suit schedule sites sold to him. The defendant No.5 claims that he has purchased agricultural land to an extent of 1 acre 7 guntas with 6 guntas kharab from defendants No.1 to 3 and their children under registered sale deed on 01/03/2004 and said defendant claiming under said sale deed is threatening to dispossess him from his suit property. The defendant No.5 and his gang tried to remove boundary stones and fencing put up in the sites. He and other site owners resisted the illegal acts of the defendant No.5 and his men. A police complaint was lodged by the site owners to the Ramamurthy Nagara Police Station. That after formation of layout to an extent of 1 acre 24 guntas with 47 sites in northern portion of the land in Sy.No.81/2 of Horamavu Village by the defendants No.1 to 3 and sold all sites to different purchasers including him under different registered sale deed, the defendants No.1 to 3 had no more rights, title or 7 Judgment O.S.No.17467/2004 interest in respect of the above said land wherein the layout was formed during 1991 to sell to the defendant No.5 under the sale deed dated 01/03/2004.
5. The plaintiff further submits that alleged sale deed of agricultural land dated 01/03/2004 in favour of defendant No.5 in respect of the same and where the layout was formed by defendants No.1 to 3 in 1991 does not confer any title to the defendant No.5. The northern portion of Sy.No.81/2 in Horamavu Village wherein the defendants No.1 to 3 formed layout was not an agricultural land since 1992. The sale deed dated 01/03/2004 claimed by defendant No.5 is fraudulent one and it is in respect of property which was already transferred in favour of plaintiff and other site owners. That he has legal right to peaceful possession and enjoyment of suit property. The defendants No.1 to 3 by creating fraudulent sale deed dated 01/03/2004 in favour of defendant No.5 and bogus title documents are trying to interfere with peaceful possession and enjoyment of suit 8 Judgment O.S.No.17467/2004 property by plaintiff. The defendant No.5 came to layout on 21/10/2004 with his gang and tried to interfere with suit properties and attempted to remove boundary stones and fencing to make it appear that it is agricultural land. The defendant No.5 has not acquired valid title under sale deed claimed by him to enter upon the suit sites or to interfere with his lawful possession.
6. The plaintiff further submits the cause of action for suit arose on 21/10/2004 at Horamavu village. The plaintiff prays to pass decree to the suit for permanent injunction restraining the defendants their heirs, successors, agents or any one claiming under them from interfering in any manner with the peaceful possession and enjoyment over the suit schedule property. The plaintiff prays to award costs of suit.
7. The defendants No.1 to 3 have filed written statement. The defendants No.1 to 3 denied entire plaint allegations and also denied ownership of the plaintiff over the suit schedule property. The defendants No.1 to 3 submit that suit 9 Judgment O.S.No.17467/2004 of plaintiff for relief of bare injunction without seeking declaratory relief is not maintainable either in law or on facts. The suit filed by plaintiff is frivolous, vexatious, mischievous in nature and plaintiff had suppressed material facts and misrepresented the facts. The defendants No.1 to 3 submit there is no cause of action to file suit, court fee paid is in sufficient.
8. The defendants No.1 to 3 alleged suit schedule property is not at all in existence as described in the schedule to the plaint. The defendants further submits that out of total extent of 3 acre 17 guntas of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk presently Bangalore East Taluk, they have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma W/o Dasappa and another extent of 30 guntas of land in favour of Padmavathi Madareddy/ defendant No.4 and retained 1 Acre 7 Guntas of land in said Sy.No.81/2 of Horamavu Village. The defendants No.1 to 3 were title 10 Judgment O.S.No.17467/2004 holders in possession and enjoyment of the extent of 1 Acre 7 guntas of land Sy.No.81/2 of Horamavu Village and they have sold said extent of land in favour of Y.N. Kondareddy/defendant No.5 under registered sale deed dated 01/03/2004 and rectification deed dated 29/03/2004. That ever since date of sale of land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 of Horamavu Village defendant No.5 is in possession and enjoyment of the said extent of the land. The defendants No.1 to 3 have sold only an extent of 30 guntas of land, in Sy.No.81/2 of Horamavu Village in favour of Padmavathi Madareddy/defendant No.4 and have not entered in to any other transaction with defendant No.4 except for sale deed referred to above, which has been executed by the defendants No.1 to 3. That no sites have been formed in land measuring an extent of 1 Acre 7 Guntas, which has been sold in favour of defendant No.5. The defendants No.1 to 3 denied they sold suit property to plaintiff under registered sale deed on 18/12/1991. The defendants No.1 to 3 denied allegations of plaint paras No.2 11 Judgment O.S.No.17467/2004 to 10. The defendants No.1 to 3 prays to dismiss the suit with cost.
9. That inspite of service summons the defendant No.4 not appeared and placed exparte. The defendant No.5 appeared and filed his written statement. The defendant No.5 denied entire plaint allegations. The defendant No.5 submits that suit filed by plaintiff for relief of permanent injunction in respect of alleged non existence of suit schedule property is not sustainable either in law of on facts. That without seeking declaratory relief of title and consequential relief suit filed for bare injunction is not maintainable. The defendant No.5 submits that description of the property, its extent and the boundaries mentioned in the schedule to the plaint are not correct. The plaintiff is making an attempts to lay claim for portion in land measuring an extent of 1-07 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, (Previously Bangalore South Taluk) under the guise of 12 Judgment O.S.No.17467/2004 having purchased site bearing list No.122/2 under the registered sale deed. There cannot be site bearing house list No.122/2 in agricultural land. The house list No.122/2 indicates that the property is Gramatana property. However the plaintiff is trying to lay claim for portion in land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South taluk and presently Bangalore East Taluk. The plaintiff has to first establish that there is sites bearing the house list number with its extent & boundaries as mentioned in sale deed & the said sites is within the Gramatana limits & then only plaintiff can claiming right over suit schedule property.
10. The defendant No.5 alleged that plaintiff is not having title & possession to the property as described in schedule to the plaint. The court paid is insufficient. There is no cause of action for the suit and hence the plaintiff is not entitle for the relief of permanent injunction for want of cause of action. The defendant No.5 submits that defendants No.1 to 3 are 13 Judgment O.S.No.17467/2004 title holders and in possession and enjoyment of land measuring an extent of land 3 Acre 17 Guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk and they have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour of defendant No.4/Padmavathi Madareddy and they have retained the land measuring 1 Acre 07 guntas, they were in possession and enjoyment of the said extent 1 Acre 07 guntas of land as absolute owners thereof. The defendants No.1 to 3 have sold said extent of 1Acre 07 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk in favour of defendant No.4 under registered sale deed dated 03/01/2004 and rectification deed dated 29/03/2004. Since from date of purchase 01/03/2004 possession of land has been delivered to him, he is in possession of said extent of 1 Acre 07 guntas of land in Sy.No.81/2 of Horamavu Village, K.R Puram, Bangalore East Taluk as an absolute owner and khata of property mutated in his name as per M.R No.48/03-04 and 14 Judgment O.S.No.17467/2004 entered his name in pahanies in respect of aforesaid land. Then he approached survey department and said land in Sy.No.81/2 of Horamavu village, being surveyed and phoded land measuring an extent of 1-07 guntas and same has been assigned with new Sy.No.81/3. The aforesaid extent of 1Acre 7 guntas in new Sy.No.81/3 (old Sy.no.81/2) of Horamavu Village not converted for non agricultural residential purposes and it remains as an agricultural land.
11. The defendant No.5 denied allegations of plaint paras No.2 to 10. The defendant No.5 further submits that the documents upon which plaintiff is relying in support of his title and possession of schedule property do not in any manner relate to land in Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, hence plaintiff can't claim any right of possession over any portion of the land in Sy.No.81/3 (Old No.81/2) of Horamavu Village, K.R Puram Hobli. The defendant No.5 prays to dismiss suit of plaintiff with costs. 15
Judgment O.S.No.17467/2004
12. On the basis of above pleadings Issues framed as under
ISSUES:
1. Whether the plaintiff proves his lawful possession and enjoyment over the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged obstructions?
3. Whether the plaintiff is entitled to the reliefs claimed?
4. What order?
13. The plaintiff examined as PW.1 and marked ExP1 to ExP7. The defendant No.1 examined as DW.1. The defendant No.5 examined as DW.1 and marked ExD1 to ExD32.
14. The plaintiff counsel argued. The defendants No.1 to 3 counsel argued. The defendant No.5 counsel argued and filed written arguments with citations. Perused the records. 16
Judgment O.S.No.17467/2004
15. My findings to above Issues are as under
Issue No.1) In Negative Issue No.2) In Negative Issue No.3) In Negative Issue No.4) See final order for following:
:REASONS:
16. Issues No.1 to 3:
The plaintiff P. Gopalkrishnan S/o Kunhikrishnan Nair filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that he is absolute owner of suit schedule property. During the year 1991 the defendant No.1 to 3 formed layout of 47 sites in northern portion of their land in Sy.No.81/2 to an extent of 1 acre 24 guntas in Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk (presently Bangalore East Taluk) and as per layout plan furnished to him and other plaintiffs, they also obtained House List numbers and khatha from the local Horamavu 17 Judgment O.S.No.17467/2004 Panchayat. He purchased site No.36 described in schedule from defendants No.1 to 3 under registered sale deed on 18/12/1991. The schedule property is residential site in portion of house list bearing No.135/4 in Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk. The jurisdictional Village Panchayat has assessed schedule property as residential site and has issued khatha extract under form No.10 in his name in respect of schedule property and has collected up to date tax on the schedule property. The khatha extract in form No.10 in respect of schedule property. The defendants No.1 to 3 furnished khatha extract in form No.10 and copy of layout plan to him and other purchasers. With reference to the layout plan, he identified schedule property and purchased it from defendants No.1 to 3. The defendant No.4 is registered General Power of Attorney Holder of defendants No.1 to 3 helped defendants No.1 to 3 to form above said layout and canvassed site purchasers to buy sites in above said layout. 18
Judgment O.S.No.17467/2004
17. The PW.1 further deposed evidence that he and many other persons purchased sites in above said layout formed by defendants No.1 to 3 under registered sale deeds during the year 1991-92. All sites in layout were sold to different persons and the purchasers including him were put in actual possession and enjoyment of sites purchased by them. He and other purchasers are in peaceful possession and enjoyment of the suit schedule properties ever since they purchased the sites from defendants No.1 to 3 thirteen years ago. Many purchasers have already constructed their houses in their respective sites in layout purchased from defendants No.1 to 3 after obtaining building license from the local Horamavu Panchayat. On 21/10/2004 defendant No.5 appeared in layout claiming that he has purchased the land to an extent of 1 acre 7 guntas with 6 guntas kharab land from defendants and their children under registered sale deed on 01/03/2004, wherein layout was formed thirteen years ago by defendants No.1 to 3 and suit schedule sites sold to him. The defendant No.5 threatened to dispossess 19 Judgment O.S.No.17467/2004 him and other site owners out of their properties. The defendant No.5 and his gang tried to remove the boundary stones and fencing put up in schedule sites. He and other plaintiff and other owners resisted illegal act of the defendant No.5 and his men. A police complaint was lodged by the site owners to the Ramamurthy Nagara Police Station. That after formation of layout to an extent of 1 acre 24 guntas with 47 sites in northern portion of land in Sy.No.81/2 of Horamavu Village by the defendants No.1 to 3 and sold all sites to different purchasers including him under different registered sale deed, the defendants No.1 to 3 had no more rights, title or interest in respect of the above said land wherein layout was formed during 1991 to sell to the defendant No.5 under sale deed dated 01/03/2004.
18. The PW.1 further deposed evidence that alleged sale deed of agricultural land dated 01/03/2004 in favour of defendant No.5 in respect of very same land where layout was formed by defendants No.1 to 3 in 1991 does not confer 20 Judgment O.S.No.17467/2004 any title to defendant No.5 and sale deed dated 01/03/2004 is illegal and null and void and same is fraudulent one. The northern portion of Sy.No.81/2 in Horamavu Village wherein the defendants No.1 to 3 formed layout was not an agricultural land since 1992. The said fraudulent deed dated 01/03/2004 claimed by defendant No.5 is in respect of very same land which has been already transferred in his favour and other site owners. That he has legal right to peaceful possession and enjoyment of suit property. The defendants No.1 to 3 by creating fraudulent sale deed dated 01/03/2004 in favour of defendant No.5 and bogus title documents are trying to interfere with his peaceful possession and enjoyment of the suit properties. That on 21/10/2004 defendant No.5 came to layout with his gang and tried to interfere with the suit properties and attempted to remove the boundary stones and fencing to make it appear that it is agricultural land. The defendant No.5 has not acquired valid title under sale deed claimed by him to enter upon suit sites or to interfere with lawful possession of plaintiff. The PW.1 21 Judgment O.S.No.17467/2004 prays to decree the suit as prayed. In support of oral evidence PW.1 marked ExP1 to ExP7.
19. The defendant No.1 Narayanappa S/o Venkataswamappa @ Chikkabbaiah filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that plaintiff filed suit for permanent injunction in respect of non existed alleged suit schedule properties, description of properties, boundaries, measurements in the plaint schedule is imaginary and not in existence. The land bearing Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South Taluk, (Presently Bangalore East Taluk), totally measuring 3 acres 17 Guntas originally belongs to their grandmother Venkatamma, she executed registered Will dated 13/06/1988 in favour him and his two brothers namely Nagaraja, Jayaram and his sister Pullamma. That their grandmother sold 1 acre 20 guntas in favour of Munivenkatamma on Southern Portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title, interest and 22 Judgment O.S.No.17467/2004 possession as per her last will executed in their favor. He became absolute owners of land measuring 1 acre 37 guntas including kharab of 6 Guntas in the said Survey number, which is bounded by East: land of Baluki Dasappa, West:
Jayanthi Village, North: land of Yamanna and South:remaining portion in Sy.No.81/2 sold to Munivenkatamma. He and defendants No.2 & 3 sold Southern portion of Sy.No.81/2 measuring 30 guntas in favour of Padmavathi Madi Reddy and retained 1 acre 13 Guntas including 6 guntas of kharab, which is Northern portion of Sy.No.81/2. He and defendants No.2 & 3 are agriculturist doing agriculture for their livelihood in the said land retained by them, in order to meet their urgent family necessities they have sold the said land measuring 1 acre 13 guntas including 6 guntas kharab in Sy.No.81/2 of Horamavu Village in favour of defendant No.5 Y.N.Kondareddy in the year 2004, due to mistake crypt in mentioning on boundaries under the afore said sale deed, they have executed rectification deed immediately. After the 23 Judgment O.S.No.17467/2004 purchase Y.N.Kondareddy became the absolute owner in possession of said land and same is bounded by East: land of Baluki Dasappa, West: Jayanthi Village, North: land of Yamanna and South: land of Padamavathi Madireddy and defendant No.5 is in possession of said land. Further the said land sub phoded as Sy.No.81/3 measuring 1 acre 7 Guntas, the mutation and RTC entered in the name of defendant No.5. The defendants No.1 to 3 apart from selling the said land Y.N. KondaReddy never sold to anybody and never parted its possession till they sold in favour of Y.N. Kondareddty. The defendants No.1 to 3 are not benefited with education and not acquainted with worldly affairs, they know only put signature in Kannada not knowing reading and writing any of the languages. That false allegation of the plaintiffs that they sold alleged Site No.36 in house list Khata No.135/4 of Horamavu village, K.R.Puram Hobli, measuring 30 X 40 feet in favour of plaintiff during the year 1991 is false. They have no such Katha property or sites at the alleged Horamavu village limits, the allegations of 24 Judgment O.S.No.17467/2004 plaintiffs that layout of sites formed in their land in Sy.No.81/2 of Horamavu village out of 1 acre 24 Guntas is false, after alienation they have not possessed 1 acre 24 Guntas either to form alleged layout of sites, in fact they never approached Horamavu village Panchayath for obtaining Katha in their names, the alleged Katha bearing No.122/2 at Horamavu village, K.R.Puram Hobli are bogus, fictitious Katha number, fraudulently concocted and created by the plaintiffs to suit their false convenience and attribute claims in their alienated agricultural land in Sy.No.81/2.
20. The DW.1 further deposed that plaintiffs have concocted and got up documents styled as sale deeds in respect of non existed property, by misusing the bogus and concocted documents, the plaintiffs attempted to gain, interest in their alienated properties belongs to Y.N.KondaReddy by imaginary cause filed the above suit.
That till they sold land measuring 1 acre 7 Guntas in Sy.No.81/2 in favour of Y.N.KondaReddy, the said land 25 Judgment O.S.No.17467/2004 continued to be revenue assessed land entered in the RTC records maintained by the revenue department and continued to be agricultural cultivable lands, they never obtained any conversion for non agricultural residential purposes and never formed any illegal layout in the said land, They have not sold any piece or inch to anybody. The alleged sale deed of plaintiffs not reflect Survey number in which the alleged sites are formed, That after alienating our land in Sy.No.81/2 measuring 1 acre 7 Guntas in favour of Y.N.Kondareddy they have no interest in the said land, the alleged cause of action is false and imaginary. The DW.1 prays to dismiss the suit of the plaintiff with exemplary cost.
21. The defendant No.5 Y.N.Kondareddy S/o Narayana Reddy filed his affidavit in lieu of examination in chief as DW.2 and deposed evidence that plaintiff filed suit against defendants for relief of permanent injunction in respect of residential premises bearing site No.36 formed in northern portion of land in Sy.No.81/2 of Horamavu Village in house 26 Judgment O.S.No.17467/2004 list katha No.135/4 measuring East to West : 40 feet and North to South : 30 of K.R.Puram Hobli, Bangalore South Taluk with boundaries i.e., suit schedule property. The suit filed by plaintiff for relief of permanent injunction in respect of alleged non existence of suit schedule property is not sustainable either in law or on facts and as such suit has to be dismissed. That without seeking for the declaratory relief of title mere suit for bare injunction is not maintainable in law and hence the plaintiff is not entitle for relief of permanent injunction. He is bonafide purchaser of agricultural land bearing old Sy.No.81/2 and New No.81/3 measuring 1 acre 7 guntas of Horamavu village for valuable consideration from rightful owners defendants No.1 to 3 after enquiry and verifying the title of his vendor and comes to the conclusion that vendors having marketable title to alienate said property and purchased under registered sale deed on 01/03/2004 for valuable consideration. Therefore his right, title interest and possession have to be protected under law. The description of plaint schedule property extent 27 Judgment O.S.No.17467/2004 and boundaries mentioned in plaint schedule is not at all correct. The boundaries and extent and property as stated in plaint and schedule as not at all pertaining to old Sy.No.81/2 and New No.81/3 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk and as such suit has to be dismissed. The plaintiff is making attempts to lay claim in portion of land measuring to an extent of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village K.R.Puram Hobli, Bangalore East Taluk under the guise of having purchased site bearing house list number registered sale deed. The suit schedule property is nothing to do with land bearing old Sy.No.81/2 and New Sy.No.81/3 of Horamavu village, and alleged description of the plaint schedule, its boundaries and sale deed referred in plaint is in respect of the property situated in the gramatana of Horamavu and not at all pertaining to agricultural land.
22. The DW.2 further deposed that there cannot be site bearing House list number in agricultural land. The house 28 Judgment O.S.No.17467/2004 list number indicates that property is gramatana property. However plaintiff is trying to lay to claim for portion in the land bearing an extent of 1 acre 7 guntas in old survey No.81/2 of Horamavu village, K.R.Puram Hobli, Bangalore South Taluk, and presently Bangalore East Taluk and contentions taken by plaintiff in pleadings and in evidence affidavit the documents relayed upon by him are different to each other and therefore plaintiff is not entitle for any relief as sought for in plaint claiming suit property in portion of land in Sy.No.81/2 of Horamavu village. The plaintiff has to establish that there is site bearing house list No. with its extent and boundaries as mentioned in sale deed and said site is within the gramatana limits and then only plaintiff can claim right over suit schedule property. The plaintiff failed to establish property mentioned in sale deed also in plaint schedule and as such suit has to be dismissed. The plaintiff is not having title and possession to property described in plaint schedule and as such plaintiff cannot value the site at Rs.1000/- under section 26(C) of KCF and SV Act 1956. 29
Judgment O.S.No.17467/2004 The plaintiff has to value suit on the market value of the suit property. The vendor of plaintiff has no manner of right title interest or possession over suit schedule property and as such plaintiff does not derive any right, title or possession. The documents produced by plaintiff are all concocted, created and got up documents. The documents are not at all existence in the Horamavu village panchayath at all. The vendors of plaintiff also does not find place in the Horamavu village Panchayath. On the strength of created and concocted documents false suit filed against him on the non existence of the suit schedule property. There is no cause of action for suit and plaintiff is not entitle for permanent injunction for want of cause of action.
23. The DW.1 further deposed evidence that defendants No. 1 to 3 were title holders and in possession and enjoyment of land measuring to an extent of 3 acres 17 guntas in Sy.No.81/2 of Horamavu Vilalge, K.R Puram Hobli, Bengalore South Taluk and they sold to an extent of 1 30 Judgment O.S.No.17467/2004 acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour defendant No.4 Padmavathi Madireddy and retained the land measuring 1 acre 7 guntas and they were in possession and enjoyment of 1 acre 7 guntas of land as absolute owners. The defendants No.1 to 3 and their children have sold said 1 acre 7 guntas in Sy.No.81/2 of Horamavu Village in his favour under registered sale deed on 01/03/2004 for valuable consideration. The vendors have noticed that there is some discrepancy in boundaries and therefore they have executed rectification deed on 29/03/2004, ever since date of purchase he has been in possession and enjoyment of said land. That on the basis of his lawful ownership and possession the concerned revenue authorities have lawfully effected mutation in M.R No.48/2003-2004 and his name has been entered in RTC and pahanies in respect of the said property and he is paying Kandayam in respect of said property. Afterwards he approached survey department to measure and fixe boundaries in respect of Sy.No.81/2 31 Judgment O.S.No.17467/2004 measuring 1 acre 7 guntas of Horamavu Village. The survey authorities surveyed and fixed boundaries in respect of the said property to an extent of 1 acre 7 guntas and assigned with new Sy.No.81/3. That aforesaid extent of 1 acre 7 guntas in New Sy.No.81/3 (old Sy.No.81/2 of Horamavu Village has not been converted for non agricultural residential purposes and it remains as on agricultural land. Further his vendors have not at all formed any sites in the said land and sold it to any persons including the plaintiff at any point of time and remained as an agricultural land and revenue authorities lawfully entered his name in the revenue documents.
24. The DW.2 further deposed evidence and denied the allegations of plaint paras No.2 to 14. The DW.2 further deposed evidence that the documents upon which the plaintiff is relaying in support of his title and possession of the schedule property do not in any manner relayed to the land in Sy.No.81/3 (Old sy.No.81/2) of Horamavu village, 32 Judgment O.S.No.17467/2004 K.R.Puram Hobli, Bangalore East Taluk and as such the plaintiff cannot claim any right or possession over any portion of the land in Sy.No.81/3 (Old Sy.No.81/2) of Horamavu village, K.R.Puram Hobli. Bangalore East Taluk.
25. The DW.2 further deposed that defendants No.1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu village in favour of Padmavathi Madireddy. The defendants No.1 to 3 have not entered into any other transactions with defendant No.4 except sale deed referred to above which has been executed by defendants No.1 to 3. The defendants No.1 to 3 have not at all executed GPA in favour of defendant No.4. No power has been confirmed upon defendant No.4 under the alleged GPA. After sale by defendants No.1 to 3 in his favour, they did not own and possess any land. The alleged layout plan is got up and concocted one. In the sale deed as well as schedule given in the plaint there is no mention that the suit schedule property is the portion of Sy.No.81/2 of Horamavu village. There are 33 Judgment O.S.No.17467/2004 no records to show that suit schedule property comes within the jurisdiction of Horamavu village panchayath. The suit schedule property is not at all in existence. The documents produced are all village panchayath records are not at all pertaining to Sy.No.81/2 or 81/3 of Horamavu village, he applied before the Right to information officer under the RTI Act to furnish documents. They have sent information stating that the documents applied by him are not at all available in the said offices. The plaintiff trespassed in the portion of land bearing (Old Sy.No.81/2) measuring 1 acre 7 guntas and New No.81/3 of Horamavu village and constructed building. In that regard he filed suit in OS.No.3483/2005 on the file of this court for relief of declaration, mandatory injunction, possession and other reliefs. The said suit is filed not only against the plaintiffs but also others. The said suit is pending. The DW.2 prays to dismiss the suit with exemplary costs. In support of oral evidence DW.1 marked ExD1 to ExD32.
34
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26. The defendant No.5 counsel while arguing relied upon the decisions reported in 1) ILR 2005 KAR 884 2) AIR 1979 CAL 50, 3) AIR 1999 SC 1441, 4) AIR 1962 Madras 149, 5) ILR 2010 KAR 2996, 6) ILR 1998 KAR 1, 7) AIR 1990 Orissa 124, 8) AIR 2004 Karnataka 444, 9) (1998) 9 SCC 719, 10) AIR 1998 KAR 321, 11) ILR 1998 Page 215,
11) ILR 2007 KAR 339. The relevant citations are discussed below.
ILR 2005 KAR 884
T.L.Nagendra Babu V/s Manohar Rao Pawar
Suit for Declaration and Injunction
requirement of evidence - Duty of the Court - Held - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.
ILR 2007 KAR 339
Aralappa V/s Jagannath and others
35
Judgment O.S.No.17467/2004
Specific Relief Act 1963-Section 34-Declaration of status or right-Discretion of Court-Held, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property -When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable-Appeals are dismissed.
27. The burden is on plaintiff to prove that he is absolute owner and in lawful possession and enjoyment of suit property as on the date of suit and defendants caused interference to his possession and enjoyment over suit schedule property. The contention of plaintiff that he has 36 Judgment O.S.No.17467/2004 purchased suit schedule property under registered sale deed dated 18/12/1991 from defendants No.1 to 3. In the year 1991 the defendant No.1 to 3 formed layout of 47 sites in northern portion of their land in Sy.No.81/2 to an extent of 1 acre 24 guntas in Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk (presently Bangalore East Taluk). The defendants No.1 to 3 furnished khatha extract in form No.10 and copy of layout plan to him and other purchasers. He is possession and enjoyment of suit schedule property and constructed building by obtaining from the local Horamavu Panchayat. On 21/10/2004 the defendant No.5 appeared in the layout claiming that he has purchased the land to an extent of 1 acre 7 guntas with 6 guntas kharab land from defendants and their children under registered sale deed on 01/03/2004 the defendant No.5 and his gang tried to remove the boundary stones and fencing put up in the suit property and dispossess him from suit property. Hence he constrained file suit for permanent injunction against the defendants. The plaintiff examined as PW.1 as discussed 37 Judgment O.S.No.17467/2004 above. In support of oral evidence the plaintiff/PW.1 marked ExP1 to ExP8.
28. The ExP1 is zerox true copy of sale deed dated:
18/12/1991 attested by Canara Bank Cunnigham Road Bangalore and sale deed is executed by defendants No.1 to 3 in favour of plaintiff in respect of suit schedule property bearing Site No.36 in portion of House List Khata No.135/4 of Horamavu village, K.R.Puram Hobli, Bangalore South taluk and certified copy of sale deed of same suit property is marked as ExP7. The ExP2 is layout of property. The ExP3 is complaint filed by plaintiff to the Sub-Inspector of Ramamurthy Nagar police station alleging harassment to the residents by some miscreants. The ExP4 is encumbrance certificate for the period from 01/06/1989 to 31/03/2004, wherein there are entries regarding sale of site No.36, khatha No.135/4 by defendant No.1 to 3 to plaintiff P.Gopalkrishnan on 18/12/1991. The ExP5 is demand register of site no41 for the year 1992-1993, wherein name 38 Judgment O.S.No.17467/2004 of plaintiff is appeared as owner and occupant of the property. The ExP6 is tax paid receipt.
29. On the contrary the defendant No.1 examined as DW.1 as discussed above and he denied the allegation of plaintiff that plaintiff is owner of suit schedule property. The defendant No.1 contention that there is no existence of suit schedule property, description of property boundaries measurement mentioned in the plaint schedule is imaginary. The defendant No.1 contention that land bearing Sy.No.81/2 of Horamavu village, K.R. Puram hobli, Bengaluru South aluk (presently Bengaluru East Taluk) totally measuring 3 acres 0.17 guntas belonged to his grandmother Venkatamma and she was executed registered Will dated 13/06/1988 in his favour and his two brothers Nagaraja, Jayaram and sister Pullamma. His grandmother sold 1 acre 20 guntas in favour of Munivenkatamma on southern portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title and possession of said portion as per the last Will 39 Judgment O.S.No.17467/2004 executed in their favour and they became absolute owners of the land measuring 1 acre 37 guntas including kharab of 0.06 guntas in the said survey number, which is bounded by East: Land of Baluki Dasappa, West: Jayanthi village, North: Land of Yamanna, South: Remaining portion in Sy.No.81/2 sold to Munivenkatamma. The defendants No.1 to 3 are agriculturists and for their livelihood they have sold 1 acre 13 guntas including 6 guntas of kharab in Sy.No.81/2 of Horamavu village in favour of defendant No.5 Y.N. Kondareddy in the year 2004, due to mistake crypt in mentioning in boundaries under the sale deed, they have executed rectification deed immediately. After purchase Y.N.Kondareddy became absolute owner in possession of land sold by them and same was bounded by East : Land of Balki Dasappa, West: Jayanthi village, North: Land of Yamanna, South: Land of Padmavahi Madireddy. In pursuance of registered sale deed in favour of Y.N. Kondareddy he continued in possession of the said land and afterwards the said land was sub phoded as Sy.No.81/3. 40
Judgment O.S.No.17467/2004
30. The defendant No.5 said Y.N. Kondareddy examined as DW.1 and he has also deposed the evidence as contended by defendant No.1 as discussed above as he purchased land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village from defendants No.1 to 3 afterwards it is given new number as Sy.No.81/3 of Horamavu village. The defendant No.5 also denied ownership, title and possession of the plaintiff over suit schedule property and also submits there is no existence of suit schedule property within the boundaries as contended by plaintiff. The defendant No.5 contention that plaintiff trespassed in possession of land bearing Sy.No.81/2 measuring 1 acre 7 guntas and new Sy.No.81/3 of Horamavu and constructed building and in this regard he filed suit in OS.No.3483/2005 on the file of this court for the relief of declaration and mandatory injunction, possession and other reliefs. The DW.2 in support of oral evidence marked ExD1 to ExD32. 41
Judgment O.S.No.17467/2004
31. The ExD1 is certified copy of plaint and ExD2 is certified copy of written statement in OS.No.3483/2005, which is filed by present defendant No.5 Y.N.Kondareddy against the defendant No.1 Narayanappa and others. The ExD3 is certified copy of plaint and ExD4 is certified copy of written statement in O.S.No.16322/2005 pending on the file of this court, which is filed by Renuka Vijayakumar & others against Narayanappa and others. The ExD5 is certified copy of sale deed dated 01/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 in respect of land measuring 1 Acres 17 Guntas including 6 Guntas Kharab in Sy.No.81/2 of Horamavu Village, K.R.Puram Hobli, Bangalore. The ExD6 is certified copy of rectification deed dated:29/03/2004 defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 rectifying about boundaries mentioned in the sale deed dated:01/03/2003 towards West: Jayanti Grama, Gomala land instead of land of Baluki Dasappa, towards 42 Judgment O.S.No.17467/2004 North:Vemanna's land instead of land of Padmavati's land, towards South: Padmavathi's land instead of Baluki Dasappa's land. The ExD7 is Mutation Register No.48 regarding change of khatha of Sy.No.81/2 measuring 1 acre 07 guntas from defendant No.1 Narayanappa in favour of defendant No.5 Y.N. Konda Reddy. The ExD8 is certified copy of record of right of land bearing Sy.No.81/2 to the extent of 1.07 acres of Horamavu village in the name of defendant No.5. The ExD9 is certified copy of Atlas Map of Sy.No.81/2, ExD10 is certified copy of Hissa Tippani of Sy.No.81/2. The ExD11 is certified copy of form No.5 relating to Sy.No.81/2 of Horamavu village. The ExD12 is certified copy of Karnataka revision settlement Aakaar bandh relating to Sy.No.81/2.
32. In ExD13 four certified copies of record of rights relating to Sy.No.81/2 of Horamavu village are marked which are standing in the name of defendant No.5 Y.N. Kondareddy. The ExD14 is certified copy of encumbrance 43 Judgment O.S.No.17467/2004 certificate for the period from 01/06/1989 to 06/06/2004 wherein there are entries regarding sale of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village by Narayanappa and others to Y.N. Kondareddy. The ExD15 is certified copy of endorsement issued by Horamavu Grama Panchayath on 15/12/2004 mentioning that relating to khatha No.122/1, 122/2, 129/3, 135/4 of Sy.No.81/2 and 81/3 there are no records standing in the name of Narayanappa, Nagaraju and Jayarama in their records. The ExD16 is marked in evidence as certified copy of the sale deed dated 15/04/1972, but in the said document were mentioned are not properly seen and unable to read the document. Hence the said document is not discussed. In ExD17 thirteen certified copies of endorsements issued by BBMP are marked as ExD17(1) to ExD17(13) those are issued by BBMP, Bengaluru on the application filed by Y.N. Kondareddy under RTI Act relating to information called in respect of house list Nos.122/1, 122/2, 135/4, 129/2, 129/3, site Nos.28, 29, 27, 26, 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45 44 Judgment O.S.No.17467/2004 and 42 and the BBMP informed that relating to said sites in Sy.No.81/2, New No.81/3 of Hormavu village, there are no records in their office relating to lay out plan, sanctioned plan in their office. In ExD18 three mutation registers are marked as ExD18 (1) to ExD18 (3) relating to transfer of Sy.No.81/2 measuring 1 acre 7 guntas from Narayanappa to Y.N. Kondareddy. The ExD19 is certified copy of Atlas relating to Sy.No.81/2. The ExD20 is certified copy of endorsement issued by R.M. Nagar police station on the application of Y.N. Kondareddy. The ExD21 is certified copy of the information furnished by the Sub-Registrar, Banaswadi to Y.N. Kondareddy called under RTI Act. The ExD22 is certified copy of endorsement issued by the Deputy Commissioner, Bengaluru to Y.N. Kondareddy to the information called by Y.N. Kondareddy about conversion of land bearing Sy.No.81/2 of Horamavu village for non-agricultural purpose and Deputy Commission furnished information that there are no records in their office relating to the information called by Y.N. 45 Judgment O.S.No.17467/2004 Kondareddy. The ExD23 is certified copy of endorsement issued by Tahsildar, Bengaluru East Taluk informing that the land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village, K.R. Puram hobli, Bengaluru there is no order of conversion for non agriculture.
33. In ExD24 two certified copies of tax paid receipts are marked. The ExD25 is certified copy of application given by the Tahsildar to Y.N. Kondareddy for surveying the land and making phode in Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village. The ExD26 certified copy of sale deed dt.17/07/1991 discloses that Narayanappa S/o late Chikka Abbaiah, Nagaraj S/o late Chikka Abbaiah, and Jayaram S/o late Chikka Abbaiah i.e. defendants No.1 to 3 have sold 30 Gunatas in Sy.No.81/2 of Hormavu village, K.R.Puram Hobli, Bangalore South Taluk in favour of defendant No.4 Madireddy Sripadmavathi W/o Jagadish. The ExD27 is certified copy of order sheet in OS.No.1208/04 of Prl. Civil Judge (Jr.Dn) Bengaluru Rural filed by Lazarus K against 46 Judgment O.S.No.17467/2004 Kondareddy Y.N. and ExD28 is certified copy of order on I.A.1 in the said suit. The ExD29 is certified copy of survey sketch and ExD30 is certified copy of the mahazar relating to Sy.No.81/3 of Horamavu village. The ExD31 is certified copy of endorsement issued by Assistant Commissioner, Bengaluru North taluk to Y.N. Kondareddy informing about non-filing of any case for purchase of land in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village in violation of Section 79 (a) and (b) of Karnataka Land Reforms Act. The ExD32 is information furnished by Assistant Revenue Officer, BBMP, Horamavu Sub Division Mahadevapur Division Bengaluru to Y.N.Kondareddy, as said Y.N.Kondareddy called information to furnish details in which survey number site No.36, house list No135/4 situated at Horamavu village as per sale deed dated 18/06/1991 of Gopalkrishna is situated and also called documents survey sketch map, layout plan, and authenticated document to show where exactly said site is situated, the Assistant Revenue officer, BBMP, Horamavu 47 Judgment O.S.No.17467/2004 Sub Division given information that the property is revenue extension and not entered in assessment book and survey sketch, layout plan relating to said site is not available in the office and site is unauthorized extension and not entered in the assessment record of their office.
34. The contention of plaintiff that he has purchased suit schedule property possession of site No.36 from defendants No.1 to 3 under registered sale deed on 18/12/1991. The plaintiff has produced and marked ExP1 to ExP7, out of those documents ExP1 copy of sale deed and ExP7 is certified copy of sale deed regarding purchase of suit property by plaintiff, ExP2 is plan, ExP3 is copy of complaint, ExP4 is encumbrance certificate, ExP5 is DCB register Extract, ExP6 is tax paid receipt. The plaintiff has not produced original sale deed of suit schedule property. Further the plaintiff has not produced katha extract and katha certificate issued by BBMP to show that his name is appeared in the revenue records of BBMP. Further as per 48 Judgment O.S.No.17467/2004 plaintiff the defendant No.1 to 3 are owners of Sy.No.81/2 of Horamavu village measuring to an extent of 1 acre 24 guntas of Horamavu village and he has purchased suit schedule property from defendants No.1 to 3 on 18/12/1991. The defendant No.1 examined as DW.1 denied regarding formation of 47 sites in 1 Acre 24 guntas in Sy.No.81/2 of Horamavu village and suit property to plaintiff. The defendant No.1 to 3 contention that they have sold 1 acre 7 guntas + 6 guntas pot kharab land to the defendant No.5 Y.N. Kondareddy on 01/03/2004.
35. The defendant No.5 examined as DW.2 deposed that he has purchased the land 1 acre 7 guntas + 6 Guntas pot kharab land in Sy.No.81/2 of Horamavu village from defendant No.1 to 3 Narayanappa and others and since then he possession and enjoyment of said agricultural land. The defendant No.5 denied regarding formation of 47 site in Sy.No.82/1 measuring 1 Acre 24 Guntas of Hormavur. In support of his oral contention the DW.2 marked ExD5 49 Judgment O.S.No.17467/2004 certified copy of the sale deed dated 01/03/2004 regarding purchase of 1 Acre 13 Gunta in Sy.No.81/2 of Horamavu village by him from the defendants No.1 to 3 and also produced rectification deed about rectification of boundaries towards west, north, south in sale deed as per ExD6. Further as per ExD7 mutation register katha of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village transferred in the name of defendant No.5 from defendants No.1 to 3. Further as per ExD8 name of defendant No.5 is appeared in the record of rights of the land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village for the year 2004-05. The DW.2 marked ExD9 Atlas, ExD10 Tippani, ExD11 form No.5, ExD12 Karnataka Revision Settlement Akaar Bandh relating to Sy.No.81/2 of Horamavu village and afterwards new number was given as Sy.No.81/3. Further ExD13 (1) to 4) are records of rights of the Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village in the year 2004-2005 till 2009- 2010 discloses name of defendant No.5 Y.N. Kondareddy as owner and cultivator of said land. Under the circumstances 50 Judgment O.S.No.17467/2004 the burden is on the plaintiff to prove that the said land bearing Sy.No.81/2 to an extent of 1 acre 24 guntas of Horamavu village the defendants No.1 to 3 formed 47 sites and sold to the different purchasers through their GPA holder defendant No.4. But to prove said fact the plaintiff has not produced the conversion order copy of said land measuring 1 acre 24 guntas in Sy.No.81/2 of Horamavu village for non-agricultural purpose issued by concerned authority along with layout plan, sketch of said land and also house list numbers given to said 47 sites by concerned revenue authority.
36. The plaintiff contended that to the suit property house list katha No.135/4 of Horamavu village was given. But to prove said fact plaintiff has not produced documents. Further plaintiff/PW.1 in his cross-examination deposed evidence that "I am residing in Bangalore since 30 years. I have constructed house at Subbanna palya. I know what documents to be varified for purchase of sites. I 51 Judgment O.S.No.17467/2004 have not seen Sy.No.81/2 of Horamavu village. I do not know what is the total extent of Sy.No.81/2. I do not know its boundaries. The layout is in Sy.No.81/2. I was present at the time of formation of layout. At the time of purchase I have varified title documents of suit property. In my sale deed Sy.No is not shown. In encumbrance certificate there is mention as property no 81/2. But is not shown as Sy.No.81/2. Encumbrance certificate is obtained for khata property. I have not taken encumbrance certificate of Sy.No.81/2. There is not conversion order in respect of S.No.81/2''. The PW.1 further deposed in cross examination that "After verifying my all the documents I have filed my chief examination affidavit. There are no records with me to show that my site is part of Sy.No.81/2 and 81/3. I can't say measurement of each of sites. I have not gone through Government documents to find out 47 sites are made in Sy.No.81/2. It is not true to suggest that there is no layout formed in Sy.No.81/2. The layout plan is not 52 Judgment O.S.No.17467/2004 approved by competent authorities". Therefore the evidence of PW.1 discloses that he has varified title documents of suit property and in his sale deed survey number is not shown and there is not conversion order in respect of S.No.81/2. Where as in the plaint he contended that in Sy.No.81/2 of Horamavu village suit property is formed. To prove said contention the plaintiff has not produced any documents. Further the plaintiff has not produced the sale deed of his vendor's vendor or title deeds standing in the name of vendor's vendor relating to suit schedule property. The documents produced by the plaintiff are not sufficient to come to conclusion that the plaintiff is the lawful owner and in lawful possession and enjoyment of the suit schedule property as on date of suit. The defendants No.1 to 3 have denied the formation of sites in Sy.No.81/2 of Horamavu village and also title of the plaintiff over the suit schedule property. Under the circumstances the suit of the plaintiff for bare injunction is not maintainable. 53
Judgment O.S.No.17467/2004
37. The DW 2 marked ExD17(1) endorsement discloses that house list No.122/1, 122/2, 135/4, 129/2, 129/3 relating to Sy.No.81/2 New Sy.81/3 of Horamavu village, the documents verified in office, but the said documents are not found in the revenue records in the name of Naryanapappa, Nagaraju and Jayaram. Further ExD17(2) endorsement discloses that no sanction plan or layout plan relating to Site No.20, 29, 27, 28, 26, 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45, 42 of Sy.No.81/2 new Sy.No.81/3 of Horamavu village are found in their records, and such documents are not in the name of Nagaraja, Narayanappa and Jayarama in their office records. In ExD17(3) the defendant No.5 called information regarding furnishing copies of khatas of Sites No.20, 29, 28, 27, 26, 37, 21, 41, 38, 4, 5, 6, 7, 36, 44 and 45, 42, 23 in katha Nos.122/2, 122/1, 135/4 of Horamavu village and the Revenue Officer furnished the information that Namuna No.9 and 10 of the said properties are not in the name of Nagaraju, Narayanappa and Jayarama. Further the ExD23 is endorsement issued by the Tahsildar, Bengaluru East Taluk 54 Judgment O.S.No.17467/2004 mentioning in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village there is no conversion of land. Therefore from these exhibits discussed above it is clear that the land bearing Sy.No.81/2 measuring an extent of 1 acre 07 guntas of Horamavu village not converted for agricultural purpose and no sites were formed in the said land. Further records of rights for the years 2004-2005 till 2009-2010 marked by DW.2 at ExD8, ExD13(1) to ExD13(4) discloses the land measuring 1 acre 7 guntas in Sy.No.81/2 of Horamavu village in the name of defendant No.5 Y.N. Kondareddy is an agricultural land, hence at the time of filing suit by plaintiff in the year 2004 said land is agricultural land. That in the citation reported in ILR 2005 Karnataka 884 relied by the defendant No.5 counsel it is held that "Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted." Further in the another citation reported in ILR 2007 Karnataka 339 relied by the 55 Judgment O.S.No.17467/2004 defendant No.5 counsel it is held that "In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit- Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property -When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable- Appeals are dismissed". The both citation discussed above applies to the present case in hand, as in the present suit the plaintiff failed to prove his valid ownership possession and enjoyment over the suit schedule property as on date of suit, hence question of interference by the defendants in the said property does not arise. Hence plaintiff is not entitle for 56 Judgment O.S.No.17467/2004 relief of permanent injunction against the defendants. The plaintiff failed to prove Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative.
38. Issue No.4:
In view of above discussion I proceed to pass the following :ORDER:
The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the stenographer, typed by him, then taken print out, corrected, signed and pronounced by me in the open court on this 22nd day of September 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
:ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF: PW.1: P.Gopalakrishnan S/o Kunhikrishnana Nair 57 Judgment O.S.No.17467/2004 DOCUMENTS MARKED FOR THE PLAINTIFF ExP1 : Copy of sale deed ExP2: Copy of proposed layout plan ExP3: Copy of the complaint ExP4: Encumbrance Certificate ExP5: Demand Register Extract ExP6: Tax paid receipt ExP7: Certified copy of sale deed WITNESSES EXAMINED FOR THE DEFENDANTS DW.1 :Narayanappa S/o Late Venkataswamappa DW.2 : Y.N.Kondareddy S/o Narayanreddy DOCUMENTS MARKED FOR THE DEFENDANTS ExD1: Certified copy of plaint in O.S.No.3483/2005 ExD2: Certified copy of W.S in OS.No.3483/2005 ExD3: Certified copy of plaint in O.S.No.16322/2005 ExD4: Certified copy of W.S in OS.No.16322/2005 ExD5: Certified copy of sale deed ExD6: Certified copy of Rectification deed ExD7: Certified copy of Mutation ExD8: Certified copy of RTC ExD9: Certified copy of Atlas copy ExD10: Certified copy of Hissa Tippani copy ExD11: Certified copy of Form No.5 ExD12: Certified copy of Karnataka Revision Settlement Akhar Bandh, 58 Judgment O.S.No.17467/2004 ExD13(1) to (4): Certified copies of RTC ExD14: Certified copy of Encumbrance Certificate ExD15: Certified copy of Endorsement ExD16: Certified copy of Sale deed dated 15/04/1972 ExD17(1) to ExD17(16): Certified copies of endorsements ExD18(1 to 3): Certified copies of Mutation Register Extracts ExD19: Certified copy of Atlas ExD20: Certified copy of endorsement ExD21: Certified copy of Information by Sub Registrar, Banaswadi ExD22: Certified copy of Endorsement ExD23: Certified copy of Endorsement ExD24(1 & 2: Certified copies of Receipts ExD25: Certified copy of Application given to Tahasildar ExD26: Certified copy of Sale deed ExD27: Certified copy of Order sheet in O.S.No.1208/2004 ExD28: Certified copy of Order on IA in OS.No.1208/2004 ExD29: Certified copy of Survey Sketch ExD30: Certified copy of Mahazar ExD31: Certified copy of Endorsement ExD32: Letter of information by Assistant Revenue Officer, BBMP, Bengaluru.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.