Bangalore District Court
Smt. Lakshmamma vs Sri. Hanumantha on 28 January, 2016
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Present: Sri. Ravindra Hegde,
M.A., LL.M.
XVII Addl. City Civil & Sessions Judge.
Dated this 28th Day of January 2016
O.S.No. 5170/2004
Plaintiff : Smt. Lakshmamma
W/o Late Keshavaiah
Aged about 65 years,
R/at Site No.9-A, No.41/3,
Chikkasandra Village,
Yeshwanthpur Hobli,
Bengaluru North Taluk
[By Sri.G.S.Balagangadhar - Adv.]
-Vs-
Defendant : Sri. Hanumantha
S/o late Keshavaiah,
Aged about 34 years,
R/at Site No.9-A,
Formed in Sy.No.41/3,
Chikkasandra Village,
Yeshwanthpura Hobli,
Bengaluru North Taluk.
[By Sri.L.B., Adv.]
Date of institution of the suit 19.07.2004
Nature of the suit Permanent injunction
Date of commencement of 17.08.2006
recording the evidence
Date on which the judgment 28.01.2016
was pronounced
2 O.S.No.5170/2004
Total duration Years Months Days
11 06 09
(Ravindra Hegde),
XVII Addl. City Civil & Sessions Judge.
**********
JUDGMENT
This suit is filed by the plaintiff for permanent injunction praying to restrain the defendant from throwing out the belongings of the plaintiff from the suit house and from dispossessing the plaintiff from the suit house and thereby, interfering with the plaintiff's peaceful possession and enjoyment of the suit property.
2. The brief facts of the plaintiff's case is that, the suit property belongs to the plaintiff and she is in uninterrupted possession and enjoyment of the same. Earlier the plaintiff's husband Keshavaiah got G.P.A. from Smt.Nagalakshmi on 11.2.1999 with regard to the suit property and to deal with the suit property and possession was also handed over to him. It was a vacant site in which plaintiff's husband constructed the house by spending large sum of money out of his earnings. Nagalakshmi had also executed agreement of sale with regard to 3 O.S.No.5170/2004 the suit property. The plaintiff and her husband were in uninterrupted possession and enjoyment of the suit property. Husband of the plaintiff died two years prior to filing of the suit. After his death, the plaintiff continued in possession and enjoyment of the suit property. The electricity connection is also obtained from the BESCOM to the suit property and the plaintiff is paying the electricity bills regularly. The plaintiff is having elder son Govindaraju and defendant is younger her son. The defendant has no right, title and interest in the suit property. He is no way concerned the suit property. The defendant had developed hostile attitude towards the plaintiff and he was attempting to interfere with her peaceful possession and enjoyment and he has instigated the persons who were inimically disposed towards the plaintiff. The defendant is also making hectic attempts to throw out the belongings of the plaintiff out of the suit property. Though the complaint is given and the police have advised the defendant, the defendant has continued his illegal interference. With these averments plaintiff filed the suit for permanent injunction.
3. The defendant appeared and filed the written statement stating that the suit is not maintainable. The 4 O.S.No.5170/2004 defendant has denied various allegations made in the plaint except admitting relationship. He has denied that plaintiff is in possession and enjoinment of the suit property after the death of her husband. He has denied that the husband of the plaintiff constructed the house by investing huge sums. The defendant has stated that the plaintiff is living with her elder son after the death of her husband. He has stated that the defendant is residing in the suit property with his family after the family partition effected during the life time of his father and he has been maintaining the same. The defendant No.1 has stated that he is having good faith, respect towards his mother and as a mother she came to the house many times and now the plaintiff colluding with her elder son created a false story and filed the present suit by suppressing the real facts. It is stated that father Keshavaiah was a Railway employee and during his life time, he owned two properties, one at Srirampura and another at Mahalakshmi layout. During his life time, he has sold the house at Mahalakshmi layout and out of that he has purchased two sites at Chikkabanavara. It is stated that during his life time, oral partition effected and as per the said partition, suit property fell to the share of the defendant and Srirampura 5 O.S.No.5170/2004 property fell to the share of Govindaraju and another site was given to his daughter Vishalakshi. After the partition, they were enjoying their respective properties without any interference. The defendant was living with his family along with his father and mother separately in the suit property by constructing the building in the schedule house by investing his hard earned money. It is stated that after the death of defendant' father, the plaintiff is residing with her elder son Govindaraju. It is stated that Govindaraju is a government employee and he has sold his share for valuable consideration and has purchased the site in Soladevanahalli and now presently residing in a rented house along with his mother i.e., plaintiff. It is stated that the defendant has started to construct 1st floor in the suit property and at that time, the plaintiff came to the house of defendant and requested to accommodate Govindaraju, brother of the defendant, for which the defendant refused. It is stated that if the plaintiff is allowed to remain in the suit property, it would encourage further law and other problems to this defendant. It is stated that the defendant is in possession and enjoyment of the suit property and the plaintiff is not residing in the suit property and she is residing with Govindaraju. It is stated that 6 O.S.No.5170/2004 after the death of his father, he has been regularly paying the revenue, tax to the property and electricity connection was also transferred in his name. On all these grounds, the suit is prayed to be dismissed with costs.
4. On these pleadings, my learned predecessor has framed the following issues:-
1) Whether the plaintiff proves that, he is in lawful possession of the suit schedule property on the date of suit?
2) Whether the plaintiff further proves that the defendants interfering with the peaceful possession and enjoyment of the suit schedule property and try to dispossess the plaintiff?
3) Whether the plaintiff is entitled to the injunction prayed for?
4) What order or decree?
5. In support of the plaintiff's case, PW.1 to 3 are examined. Ex.P1 to P22 are marked. For defendant, the defendant is examined as DW.1. Ex.D1 to D3 are marked.
6. Heard the arguments.
7. My answer to the above issues are as under:-
Issue No.1: In the Negative 7 O.S.No.5170/2004 Issue No.2: In the Negative Issue No.3: In the Negative Issue No.4: As per final order, for the following:
REASONS
8. Issue No.1 to 3:- All these issues are taken together for discussion to avoid repetition.
9. The case of the plaintiff is that the suit property is in her possession and enjoyment and the defendant who is her younger son is interfering in her peaceful possession and enjoyment. The plaintiff has contended that the defendant is making attempts to throw out the belongings of the plaintiff out of the suit house. The defendant has denied the same and contended that as per the oral partition, the suit property has come to his share and the plaintiff is residing with her another son.
10. The plaintiff has given evidence as P.W.1 and has stated her case in her chief evidence. In the cross-examination, she has stated that she is having two sons and one daughter and has stated that her self and her sons are not residing together and stated that her elder son is residing in Srirampura 8 O.S.No.5170/2004 and the defendant is residing in Chikkabanavara. She has further stated that the defendant is residing in the suit property in different portion and also stated that suit property is consisting of single house and defendant is residing in separate portion and is having separate entrance. She has denied that she is not residing in the suit property. She has stated that she has lost her ration card. She has stated that she does not know when house number in Ex.P3 is mentioned as 629/1 and denied that she is residing in 629/1. She has denied that after the death of her husband, the electricity meter is transferred in the name of the defendant.
11. The witness by name R.Manjunath is examined as P.W.2. But he has subsequently died before his cross- examination and therefore, his evidence is not of any help in this suit. The elder son of the plaintiff Govindaraju has given evidence as P.W.3 and he has stated that the plaintiff is in possession of the suit property and he has denied that the suit property is in possession of the defendant and that the suit property has come to the share of the defendant in the partition. In the cross-examination, witness has stated that he is working in the revenue department and the defendant is his younger 9 O.S.No.5170/2004 brother. He has denied that the property at Srirampura is give to his share in the partition by his father.
12. The plaintiff has produced the G.P.A. alleged to have been given by the owner of property No.9-A formed in Sy.No.41/3 to the husband of the plaintiff as Ex.P1. An affidavit given by this owner to the husband of the plaintiff is also produced as Ex.P2. On the basis of these documents, the family of the plaintiff and defendant is stated to have come into possession of the suit property, in which they have made construction of the house. An agreement of sale alleged to have been executed by the owner of the property is also produced at Ex.P5. These documents are produced to show how the property came to the husband of the plaintiff and father of the defendant. The voter's list of Uttarahalli constituency is produced as Ex.P3. In this document in House No.629/1 name of Keshavaiah, Lakshmamma and Govindaraju are appearing. This voter's list is of the year 2000. Copy of the letter given by P.W.3 to the Deputy Commissioner seeking copy of the complaint given by the plaintiff against the defendant and statement of Hanumanth etc., is produced as Ex.P4. Ex.P6 and P7 are two electricity bills standing in the name of Keshavaiah, the husband of the 10 O.S.No.5170/2004 plaintiff which is for the month of March 2004. The mutation copy and RTC of Sy.No.41/3 are produced as Ex.P8 to 22.
13. The defendant has given evidence as DW.1 and has stated his contentions taken in the written statement in his chief evidence. In the cross-examination, he has admitted that the suit property is the ancestral property and in this property, the plaintiff and defendant are having right. He has admitted that this property has not come to his father by sale deed and there is no layout plan. He has denied that the suit property is in possession of the plaintiff and also denied that his mother is paying electricity charges of the suit property. He has admitted that his father had constructed the house in the suit property and admitted that himself and his brother are residing separately. The witness could not say the details of the property existing in Srirampura and Chikkabanavara belonged to the family. He has denied that Ex.D3 is falsely created document. He has stated that his brother is residing in a rented house. The defendant has produced his ration card as Ex.D1 and house tax paid receipt as Ex.D2 and copy of the complaint given to the police on 24.6.2004 as Ex.D3.
11 O.S.No.5170/2004
14. On looking to the pleadings, evidence and documents produced, the admitted facts are that the plaintiff is the mother of the defendant. The plaintiff has two sons and one daughter. The first son Govindaraju is P.W.3 and he is residing in a rented house. It is admitted fact that the suit property was a vacant site which is agreed to be sold by Smt.Nagalakshmi to the husband of the plaintiff and agreement of sale was executed long back on 11.2.1999 and on the same day, the said owner of the site, appears to have even executed the G.P.A. to the husband of the plaintiff as per Ex.P1 and also an affidavit admitting possession of the property. Ex.P1, P2 and P5 are the documents produced to show that the Site No.9-A formed in Sy.No.41/3 by Smt.Nagalakshmi has been handed over to the husband of the plaintiff and the husband of the plaintiff came in possession of this property by virtue of these documents. The copy of the mutation order and the RTC of Sy.No.41/3 are also produced as Ex.P8 to P22, in which the name of Nagalakshmi is appearing.
15. It is an admitted fact that the suit property Site No.9A in Sy.No.41/3 is not standing in the name of the husband of the plaintiff or the plaintiff or the defendant in any 12 O.S.No.5170/2004 of the revenue records. The husband of the plaintiff is stated to have come in possession of this property which is shown as Site No.9A in Sy.No.41/3 by virtue of G.P.A., an affidavit and agreement of sale at Ex.P1, P2 and P5. Both plaintiff and defendant have admitted that the husband of the plaintiff had made construction of the house in this property. DW.1 in his cross-examination, has clearly admitted that, his father had constructed the house. By looking to the evidence of P.W.1 and P.W.3, it is clear that the suit property was a vacant site and it came to the family of the plaintiff and defendant from Nagalakshmi and though their name is not appearing in the property records, the family of the plaintiff and defendant, is in possession of the property and they have constructed the house in this property. After the death of husband of the plaintiff, the dispute appears to have arisen between the parties. The plaintiff has stated that after the death of her husband, she has continued in possession of the suit property. The plaintiff has stated that she is living in the suit house and she has spent large amount for maintenance of the suit house. She has stated that the defendant without having any right in the property, interfering in plaintiff's possession. Since the plaintiff and 13 O.S.No.5170/2004 defendant are contending that this property is acquired by Keshavaiah, the husband of the plaintiff and father of the defendant, the contention of the plaintiff that the defendant has no manner of right, title and interest in the suit property, cannot be accepted.
16. It is not the case of the plaintiff that her husband has executed some documents in her favour in respect of the suit property. Moreover, the khatha of the suit property is not standing in the name of the husband of the plaintiff. The admitted facts between the parties, is only that this property came to their family by Ex.P1, 2 and P5 documens and that the family of the plaintiff and defendant was in possession of the property subsequent to the death of husband of the plaintiff. Though the plaintiff is contending that she is in possession of the property, the contention of the defendant is that during the life time of father, oral partition was effected and the defendant is given the suit property and his brother and sister were given some other properties. It is also the contention of the defendant that though during the life time of his father, plaintiff and her husband were residing with the defendant and after the death of his father, the plaintiff started to reside in her another son's 14 O.S.No.5170/2004 house i.e., P.W.3. Though the plaintiff has stated that the defendant has no manner of right, title and interest in the suit property, there is absolutely no materials placed by the plaintiff to show that this is the exclusive property of the plaintiff. Even in the cross-examination of P.W.1, she has clearly stated that the suit property is consisting of a single house. She has even stated that the defendant is residing in the suit property in a different portion. Therefore, the plaintiff has admitted that the defendant is in possession of the portion of the suit property in her cross-examination.
17. Though she has stated that the defendant is residing in a separate portion and it is having a separate entrance, no materials are placed by the plaintiff to show that the suit property is having two portions and one is occupied by the defendant and another one is occupied by the plaintiff as stated by her in her cross-examination. To show her possession of the suit property, the plaintiff has produced the voter's list of the year 2000, in which her name is appearing. This is marked as Ex.P3. But Ex.P3 appears to be of the different address than that of the suit property. It is with regard to House No.629/1 and name of husband of the plaintiff, plaintiff and her another 15 O.S.No.5170/2004 son Govindaraju with his wife and daughter is appearing in this Ex.P3. The suit property is situated in Chikkabanavara village, Yeshwanthpur Hobli, Bengaluru North Taluk and the Ex.P3 Voter's list is of Harohalli and the name of the defendant is not appearing in this voter's list. The suit property and the address mentioned in Ex.P3 voter's list appears to be different. Ex.P4 is copy of the letter given by P.W.3 to the police seeking copy of the complaint given by his mother and that is not a document to show the possession. The electricity bills of the month of March 2004 are produced as Ex.P6 and P7, but it is standing in the name of husband of the plaintiff and it does not show that this electricity bill has been paid by the plaintiff.
18. The plaintiff has not produced any documents to show that the suit property is in her possession and she is residing there. She has stated that she is having ration card, but it is lost. The only document produced is a voter's list of the year 2000, wherein the name of the plaintiff is appearing to different address and not to the address of the suit property. Even P.W.1 has admitted that the defendant is residing in another portion of the same house. Therefore, the occupation of the suit house by the defendant is even admitted by P.W.1 in 16 O.S.No.5170/2004 her cross-examination. The defendant has produced his ration card which is of Chikkabanavara address as Ex.D1 and also produced the tax paid receipt in respect of the house for the period 2004-05 and copy of the complaint given to the police by wife of the defendant on 24.6.2004 i.e., before filing of this suit, as Ex.D3. In this, it has been clearly mentioned that there was oral partition effected by father of the defendant and the defendant is given the suit property in the said partition. This complaint is given against P.W.3 by alleging that he is interfering in the possession and enjoyment of the property by the defendant and his family members and directing them to vacate the house.
19. On considering the entire case, the only document produced by the plaintiff to show her possession is voter's list, but that appears to be of the defendant address. The house tax paid receipt produced by the defendant at Ex.D2 and copy of the police complaint given in June, 2004, by the wife of the defendant, would show the possibility of defendant being in possession of the suit property. The plaintiff and defendant are mother and son. It is alleged by the defendant that there is an oral partition effected and in that partition, the suit property 17 O.S.No.5170/2004 has come to the share of the defendant. For the purpose of injunction suit in which the plaintiff is seeking injunction against interference by defendant contending that the defendant has no right, title and interest in the property, the plaintiff must establish her exclusive possession of the property. She has not produced any documents to show her exclusive possession of the property. As admitted, the property is belonged to the husband of the plaintiff and father of the defendant in which both the plaintiff and defendant may be having same right. In the cross-examination of DW.1, it is elicited that it is the family property and there is no partition effected. When the partition is not affected between the parties, both will be having undivided right in the property. The materials placed by the plaintiff does not show her exclusive possession of the suit property. When the plaintiff has failed to establish her possession, causing interference in her possession does not arise. Moreover, the plaintiff and defendant are mother and son and it is the property belonged to their father, both of them would be having right in the property and as such, granting injunction against the defendant, is not even permissible.
18 O.S.No.5170/2004
20. The learned counsel for the plaintiff has drawn my attention to the decision reported in AIR 1995 Bombay 210 - Conrad Dias of Bombay Vs. Joseph Dias of Bombay, in which the Hon'ble High Court has held that:
"Suit by owner of house who was in joint possession along with defendant son, for injunction restraining defendant from entering or remaining in house, is perfectly proper, since the defendant had no legal right to continue to stay in the house."
In the present case, contention of the plaintiff that the defendant has no right, title and interest in the suit property is not established and on the other hand, it is even suggested to DW.1 that the property is not partitioned and the plaintiff and defendant are having right in the said property. Therefore, no injunction can be granted as prayed. Accordingly, issue No.1 to 3 are answered.
21. Issue No.4:- For the discussion made on issue No.1 to 3, the suit of the plaintiff is to be dismissed. Accordingly, following order is passed :-
ORDER Suit of the plaintiff is dismissed.19 O.S.No.5170/2004
In the circumstances of the case, there is no order as to costs.
Draw decree.
(Dictated to the judgment writer, transcribed by him, corrected and then pronounced by me in the open court, on this the 28th day of January, 2016).
(Ravindra Hegde), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiff:
P.W.1 Lakshmamma P.W.2 R.Manjunath P.W.3 Govindaraju
List of documents exhibited for plaintiff:
Ex.P1 G.P.A.
Ex.P2 Affidavit
Ex.P3 Voters' list
Ex.P4 Copy of letter
Ex.P5 Agreement of sale dtd.11.2.1999
Ex.P6 & 7 Electricity bills
Ex.P8 Copy of mutation
Ex.P9 to 22 RTC extracts
20 O.S.No.5170/2004
List of witnesses examined for defendant:
DW.1 Hanumatha
List of documents exhibited for defendant:
Ex.D1 Ration card
Ex.D2 House tax paid receipt
Ex.D3 Copy of the police complaint
XVII Addl. City Civil & Sessions
Judge, Bengaluru.
21 O.S.No.5170/2004
(Order pronounced in open court vide separate judgment) ORDER Suit of the plaintiff is dismissed. In the circumstances of the case, there is no order as to costs.
Draw decree.
XVII Addl. City Civil & Sessions Judge, Bengaluru.