Bangalore District Court
Smt.Manjula vs The Hindu Charitable And on 24 September, 2019
1
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL&
SESSIONS JUDGE,MAYOHALL UNIT, BENGALURU
(CCH74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (SPl.,)
LXXIII Addl.City Civil & Sessions Judge
Dated this the 24th day of September, 2019.
OS.NO. 25624/ 2013
Plaintiff: Smt.Manjula,
Aged about 48 years,
W/o Sri.Lakshman,,
R/at No.146/11, 7th Cross,
Thayappa Garden,
Coconut Avenue Road,
Malleshwaram. Bengaluru.
(By Suresh Law Associates Adv.)
V/s
Defendant: THE HINDU CHARITABLE AND
ENDOWMENT COMMITTEE,
Alur venkatarao Street,
Chamarajpet,
Bengaluru560018.
Represented by
The Deputy commissioner
Muzrai properties,
Charitable and Endowment
Committee, Bengaluru.
(By N.Shankaranarayana Bhat - Adv.)
2 O.S.No.25624/2013
Date of Institution of the suit 10.04.2013
Nature of the (Suit or pronote, suit
for declaration and possession, suit Injunction Suit
for injunction, etc.)
Date of the commencement of recording
04.09.2014
of the Evidence.
Date on which the Judgment was
24.09.2019
pronounced.
Year/s Month/s Day/s
Total duration 06 05 14
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH74)
JUDGMENT
The plaintiff has filed this suit for permanent injunction, restraining the Defendant, its representative, administrators, executors or assigns or any authorized persons etc., from interfering with the Plaintiff's peaceful possession and enjoyment of the suit schedule property.
2. Brief facts of the plaintiff's case:
It is the case of the Plaintiff that one Thayappa was cultivating the land measuring 1acres 3gunta which belongs to the 3 O.S.No.25624/2013 endowment of Sri.Kodi Anjaneya Swamy Temple at Sheshadri Puram, Bengaluru, as a lessee, after demise of said Thayappa his eldest son by name Muniswamppa, being head of the joint family become tenant of the said property, they have been cultivating the said land for the past more than 30 years, so T.Muniswamappa was a registered tenant, he used to pay Panchashala Gutta of the property to authority.
3. Further contended in the plaint that, after abolition of minor DevaDaya Temple Inams, said T.Muniswappa had filed application before the special deputy commissioner for abolition of Inams, Bengaluru, for registration of occupancy rights in respect of property mentioned in the schedule. The said authority had passed the order in case No.AIMS37/7273, dated 30041974, by the said order the occupancy rights of 1acre 30gunta land bearing No.29 of Jakkasandra Village, Bengaluru North Taluk, in favour of T.muniswamappa .
4. However, in view of the the settlement arrived between the parties in the said case, the special deputy commissioner for 4 O.S.No.25624/2013 abolition of Inams, had passed order on settlement agreement between T.Muniswamppa and authority of Kodi Anjaneya Swamy Temple.
5. As per the said compromise, it ordered that 26 ¼ guntas land, out of 1acre 3gunta, is registered in the name of temple and the remaining land of 16 ¾ guntas is ordered to be registered in the name of T.Muniswamppa.
6. Thus the T.Muniswamppa became the registered occupant, owner in respect of 16 ¼ guntas land in Sy.No.29 of Jakkasandra Village, Bengaluru North Taluk, now included in division No.7, numbered as 146/2 coconut avenue, 7 th Cross, Malleshwaram, Bengaluru03.
7. Thereafter said T.Muniswamppa and Smt. K.Muniyamma and his family members have entered into registered family partition dated 31071974. Thereafter Smt.K.Muniyamma had sold the suit property to the present plaintiff under registered sale deed dated 14121995, present Plaintiff got entered his name in the revenue records of suit schedule property and Plaintiff is 5 O.S.No.25624/2013 paying taxes in respect of suit schedule property to competent authority.
8. Such being the fact, on 21122012 the Defendant and other 45 persons, from the office of Defendant, had come to the suit property and informed that Defendants are taking measurement of suit property to know the extant of land under the occupation of Plaintiff and 22 others without issuing any notice to the Plaintiff. Not only this the Defendant had issued notice to Plaintiff on 20032013 under rule 39 of the Karnataka Hindu Charitable and endowments rules, stating that property bearing Sy.No.29 of Jakkasandra Village, is belongs Sri Kodi Anjaneya Temple and Plaintiff had encroached of the said land. On receiving the said notice from Defendant the Plaintiff had replied to the Defendant's notice, but the Defendant even after receiving reply, did not stopped his interference in the suit schedule property. Hence, the Plaintiff had filed this suit for necessary relief sought in the Plaint.
6 O.S.No.25624/2013
9. In pursuance of the suit summons the Defendant had appeared through his counsel filed written statement. The Defendant had denied the case of the Plaintiff as false and frivolous, vexatious. The Defendant had denied case of the Plaintiff parawise reiterating the averments of the Plaint and denied the same. Further contended in the written statement that, there is no partition among the family members of T.Muniswamppa, there is no order of Deputy Commissioner, the family of T.Muniswamppa never in possession of the suit property and K.Muniyamma is not a owners, they have not sold the suit property to the Plaintiff.
10. Further, the Plaintiff constructed house over the suit schedule property illegally and unauthorizedly. Further contended that the Survey conducted by the Defendant on 2112 2012 was legal, same is within the right of Defendant and Sy.No.29 of Jakkasandra Village, never in possession of the vendors of the Plaintiff and the Deputy Commissioner never passed any order in respect of suit property, whatsoever, hence, 7 O.S.No.25624/2013 no right is acquired by the Plaintiff. With this, the Defendant prayed for the dismissal of the suit.
11. On the pleading of the parties my learned predecessor framed the following:
ISSUES
1. Whether Plaintiff proves that, she was in lawful possession and enjoyment of the suit schedule property, as on the date of suit?
2. Whether Plaintiff proves alleged interference?
3. Whether Plaintiff is entitled for relief of Permanent injunction?
4. What order or decree?
12. In order to prove his case the Plaintiff is examined as PW.1 and got marked Ex.P1 to P15 and closed his side evidence. Defendant has field written statement and denied the case of the Plaintiff. But Defendant did not choose to cross examined PW.1 and did not choose to lead his evidence to prove his defence taken in the written statement. After filing written statement and 8 O.S.No.25624/2013 Defendant and his counsel remained absent. The learned counsel for the Plaintiff has filed his written argument. When suit was posted for argument on Defendant side, Defendant and his counsel absent. Hence, argument on Defendant side is taken as heard and posted for judgment. I have perused oral and documentary evidence and pleadings of the parties and consider the argument of the learned counsel for the parties.
13. My answer to above Issues are as follows:
Issue No.1 : In the Affirmative. Issue No.2 : In the Affirmative. Issue No.3 : In the Affirmative. Issue No.4 : As per the final order, for the following:
REASONS
14. Issue No.1: In order to prove his case the Plaintiff is examined as PW.1 and got marked Ex.P1 to P15. PW.1 filed his affidavit in lieu of examination in chief, reiterating the averments of the plaint. It is the case of the Plaintiff that, plaintiff has purchased the suit property under registered sale from her vendor who was absolute owner and in possession of the suit schedule 9 O.S.No.25624/2013 property. The plaintiff had purchased the suit schedule property with existing residential building. The Plaintiff is in possession and enjoyment of the suit schedule property. In support of his oral evidence Plaintiff has produced documents which have been marked at Ex.P1 to P15.
15. Ex.P1 is the Certified copy of sale deed, I have perused the Ex.P1 it is seen that, plaintiff is residing in the suit schedule property after purchasing it for valuable consideration from his vendors. Ex.P2 is the Certified copy of partition deed, Ex.P3 is the Khatha certificate and Ex.P4 is the Khatha extract.
16. Ex.P5 is the tax paid receipt, Ex.P6 original khatha certificate dated 05122018. Ex.P7 is the Original Khatha extract dated 05122018, Ex.P8 Computerized tax paid receipt dated 13 072018, Ex.P9 is the water bills, Ex.P10 is the 2 water receipts, Ex.P11 is the 3 electricity bills, Ex.P12 is the 2 electricity receipts, Ex.P13 is the 3 digital photos, Ex. P14 is the Acknowledgement of reply notice dated 30032013 and Ex.P15 is the CD. 10 O.S.No.25624/2013
17. I have perused Ex.P1 and P2 are the Certified copy of the sale deed and partition clearly established that plaintiff is owner of the suit schedule property, Ex.P3 to P14, are revenue entries and water and electricity bills paid by the plaintiff in respect of suit schedule property. Same are stands in the name of plaintiff and further all the documents reflects the residential address of the plaintiff, which established the possession of the plaintiff. The revenue records stands in the name of plaintiff in respect of suit schedule property same are having evidential value as per section 35 of Indian Evidence Act.
18. On perusal of the Ex.P1 to P14 and P15, it is clear that, the Plaintiff has proved his legal possession and enjoyment of the suit property as a owner of the suit property. Under such circumstances, I am of the opinion that, Plaintiff is entitle for the relief sought in the Plaint as Plaintiff has proved his possession. In support of my opinion, I relied on the decision reported in AIR 2008 SC 2033 in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
11 O.S.No.25624/2013
The lordship have held in the decision thus:
Where Plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant a suit for an injunction simpliciter will lie.
19. I have perused Ex.P1 to P14, Ex.P15 is CD, the revenue records and electricity and water bills, photos and CD. On perusal of the same, it is clear that Plaintiff is owner and in possession and enjoyment of the suit schedule property at the time of filing of the suit.
20. Though Defendant has appeared through his counsel, filed written statement and denied the case of the Plaintiff. But Defendant did not choose to cross examined PW.1 and did not choose to lead his evidence to prove defence taken by him in the written statement. So, the oral and documentary evidence led by the Plaintiff are remained unchallenged. Under such circumstances, I am of the firm opinion that, Plaintiff has proved this issue with cogent evidence. Hence, I hold that Plaintiff is in 12 O.S.No.25624/2013 possession and enjoyment of the property. With this, I answer this issue in the Affirmative.
21. Issue No.2: The case of the Plaintiff is that, the Plaintiff had purchased the suit schedule property under registered sale deed, dated 12121985, he was constructed house over the suit property, he is in possession and enjoyment of the suit property as a absolute owner.
22. Such being the fact, during the year 2012 Defendant authority had issued a notice calling upon Plaintiff to produce the title deeds of the suit property. In the said notice Defendant has denied the ownership and possession of the Plaintiff. The Plaintiff replied to the notice. Defendant has clearly denied the possession of the Plaintiff and send its officials for measurement of suit property without prior notice to the Plaintiff, contending that suit schedule property is belongs to Sri Kodi Anjaneya Temple. So, act of issuing notice to the Plaintiff challenging the possession and enjoyment of the suit property is clearly shows that Defendant has interfered in the possession of the Plaintiff. So, the Defendant 13 O.S.No.25624/2013 has interfered in the peaceful possession and enjoyment of the suit property. Hence, I hold that the Plaintiff has proved the interference of the Defendant. With these reasons, I answer this issue in the Affirmative.
23. Issue No.3: The case of the Plaintiff is that he is in possession and enjoyment of the suit property as absolute owner. He has produced Ex.P1 to P14 to show that he is in possession and enjoyment of the suit schedule property at the time of the filing of the suit.
24. On perusal of the Ex.P1 to P14, it is clear that, Plaintiff is in possession and enjoyment of the suit schedule property at the time of filing of the suit. Ex.P7 and P6 khatha extract and certificate and P8 is the tax paid receipts Ex.P9 to 14 are the electricity bills and water bills stands in the name of plaintiff in respect of suit schedule property. All these revenue records stand in the name of the Plaintiff. On perusal of the revenue records it clearly establishes that the Plaintiff is in possession and enjoyment of the suit property at the time of filing of the suit. The entries in 14 O.S.No.25624/2013 revenue records has got presumptive value under the law of evidence. As per Sec.35 of the Indian Evidence Act, which reads thus:
35.Relevancy of entry in public [record or an electronic record] made in performance of duty.__ An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.
Editor's Note._The words "Fact", "Facts in issue" and 'Relevant" are defined in Section 3 of this Act.15 O.S.No.25624/2013
In support of my opinion I relied on the decision reported in ILR 2004 KAR.1074 in case of Naganna Vs. Shivanna. The lordship have held at Head note B. thus:
REBUTTAL EVIDENCE - entries in the ROR carries presumptive value in law
- if there is no convincing evidence to rebut the legal presumption, lessor relief of injunction can be granted. But the declaration title cannot be granted.
Further relied on decision reported in AIR 2008 SC 901 in case of Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and Others. The lordship have held at Head note B. reads thus:
Evidence Act, (1 of 1872), Ss. 35, 114 revenue records not document of title it merely raises presumption of possession.
The lordship have discussed at Para 12 of the judgment, which reads thus:16 O.S.No.25624/2013
A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the the Indian Evidence Act. The Courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind.
25. On perusal of the oral and documentary evidence it is clearly established that Plaintiff has proved his possession of the suit property at the time of the filing of the suit and Plaintiff has proved the interference of the Defendant in peaceful possession and enjoyment of the suit property of the Plaintiff. With this reasons and relying on the decision referred above, I hold that the Plaintiff is entitle for the relief sought in the Plaint. Hence, I answer this issue in the Affirmative.
26. Issue No.4 : Inview of the discussion made on Issue No.1 to 3, I proceed to pass the following:17 O.S.No.25624/2013
ORDER The suit filed by the plaintiff is hereby decreed. Consequently, Defendants, its representative, administrators, executors or any authorized person, are hereby restrained by order of permanent injunction from interfering with Plaintiff's peaceful possession and enjoyment of the suit schedule property.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 24th day of September, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) SUIT SCHEDULE PROPERTY All that part and parcel of the Residential Property bearing No.146/11, (old No.146/2), situated at 7 th Cross Road, Thayappa Garden, near Coconut Avenue Road, Malleshwaram, Bengaluru, Measuring East to West 26 feet, and North to 18 O.S.No.25624/2013 South 20 feet, together with existing Residential building bounded on the East by : House No.146/12 West by : House No.146/10 North by: Remaining Portion of Property bearing No.146/11, South by: 7th Cross Road.
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) ANNEXURE List of witnesses examined for the plaintiff's side:
PW1: Smt.Manjula, List of documents exhibited for the plaintiff's side:
Ex.P.1 : C/C of sale deed Ex.P.2 : C/C of partition deed Ex.P.3 : Khata Certificate Ex.P.4 : Khata extract Ex.P.5 : Tax paid receipt Ex.P.6 : Original Khatha Certificate dated 05122018 Ex.P.7 : Original Khatha extract dated 05122018 Ex.P.8 : Computerized tax paid receipt dated 13072018 Ex.P.9 : 2 Water bills Ex.P.10: 2 water receipts Ex.P.11: 3 Electricity bills Ex.P.12: 2 Electricity receipts Ex.P.13: 3 digital photos 19 O.S.No.25624/2013 Ex.P.14: Acknowledgement of reply notice dated 30032013 Ex.P.15: CD List of witness examined for the defendant side :
Nil. List of documents exhibited for the defendant's side:
Nil. (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru.(CCH74) 20 O.S.No.25624/2013