Bangalore District Court
Smt. B.G. Sumitha vs Smt. Thimmamma on 1 February, 2016
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 1st day of February, 2016.
PRESENT:
Sri PATIL NAGALINGANAGOUDA, B.A.,LL.B.(Spl.),
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.343/2009
PLAINTIFFS : 1. Smt. B.G. Sumitha,
D/o. S. Gangaiah,
Aged about 23 years;
2. Sagar,
S/o. S. Gangaiah,
S/o. Bhagya,
Aged about 22 years;
3. Smt. Bhagya,
W/o. S. Gangaiah,
D/o. M.R. Thimma Shetty,
Aged about 42 years.
Plaintiffs 1 to 3 are residing
at No.655/19, 4th Cross,
6th Main, Hosahalli Lay-out,
present Vijayanagar,
Bengaluru - 560 040.
(By Sri R.P. Somashekharaiah,
Advocate)
-VERSUS-
DEFENDANTS : 1. Smt. Thimmamma,
W/o. M.R. Thimmashetty,
Aged about 65 years;
2. Smt. Padma,
D/o. M.R. Thimmashetty,
Aged about 38 years.
Defendants 1 and 2 are
residing at No.655/19,
4th Cross, 6th Main,
Hosahalli Lay-out,
-2- O.S. No.343/2009
present Vijayanagar,
Bengaluru - 560 040.
(By Sri H.V.B., Advocate)
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Date of institution : 13-01-2009.
Nature of suit : For permanent injunction.
Date of commence- : 05-02-2010.
ment of recording of
evidence
Date on which the : 01-02-2016.
Judgment was
Pronounced
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Year/s Month/s Day/s
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Total duration 7 years -- 17 days.
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(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge,
Bengaluru.
JUDGMENT
This is a suit filed by the plaintiffs against the defendants 1 and 2 or anybody claiming through them from interfering with the peaceful possession and enjoyment of 'B' schedule property and for the relief of permanent injunction restraining the defendant or anybody claiming through them from alienating 'A' schedule property.
2. The brief facts of the plaint are as under:-
Cont'd..
-3- O.S. No.343/2009 The plaintiffs have contended that the property bearing No.655/19, 4th Cross, 6th Main, Hosahalli Lay- out, present Vijayanagar, measuring East-West : 35 feet and North-South : 51.6 feet was acquired by late M.R. Thimma Shetty - the grand father of the plaintiffs under registered sale deed dated 03-01-1983 executed by B.D.A. registered in the office of the Sub-Registrar, Srirampuram. It is submitted that during the lifetime of late M.R. Thimma Shetty, he has constructed an out- house towards Southern side and towards eastern- western side, he has constructed two houses and dug one bore-well. M.R. Thimma Shetty has executed registered Will in favour of the plaintiffs and defendants under the registered Will dated 07-06-2007 allotted 'A' schedule property in favour of the plaintiffs and 'B' schedule property in favour of the second defendants which is registered on 08-06-2007. Thereafter, M.R. Thimma Shetty has registered codicil Will on 10-01- 2008 by correcting the boundary of the property allotted to 'A' schedule property mentioned in the Will dated 07- 06-2007 in favour of defendant No.2 and accordingly allotted 'B' schedule property mentioned in the Will in favour of the plaintiffs. It is submitted that the plaintiffs' grandfather expired leaving behind plaintiffs and defendants on 24-01-2008. After his death, the first defendant in collusion with the Corporation Authorities got entered her name in the B.B.M.P. records and entered her name in the Khata extracts without disclosing the Will executed by the grandfather of the Cont'd..
-4- O.S. No.343/2009 plaintiffs. On coming to know about the same, the plaintiffs' mother - Smt. Bhagya has lodged a complaint with the Corporation Authorities requesting them to take necessary action for cancellation of the Khata.
It is submitted that when this being the position, defendant No.1 is making hectic efforts to alienate 'B' schedule property of the plaintiffs to some third parties on the basis of the Khata obtained in the name of the first defendant. Corporation Authorities have also not taken any action to rectify the mistake committed by them even though complaint has been lodged long back. Defendants now by colluding with each other making hectic efforts to disturb the possession of the plaintiffs from 'B' schedule property who are residing along with their mother - Smt. Bhagya and their father Gangaiah. Lastly, it is submitted that though the plaintiffs have approached the jurisdictional police, the police after looking to the complaint directed the plaintiffs to approach the competent Civil Court for appropriate reliefs. With this submission, the plaintiffs have prayed to decree the suit.
3. On the other hand, in pursuance of summons, defendants 1 and 2 have appeared through their Counsel and filed their written statement. The brief facts of the written statement of the defendants are as follows:-
Cont'd..
-5- O.S. No.343/2009 The defendants have admitted with regard to execution of Will and codicil referred by the plaintiffs in their suit. The defendants have taken the contention that late M.R. Thimma Shetty has bequeathed the suit schedule property to his daughter, i.e., second defendant and grandchildren, i.e., plaintiffs, but he had created life interest over the suit schedule properties towards his wife - defendant No.1 for her maintenance and for her medical expenses as she is diabetic and also suffering from arthritis. The defendants have denied that by colluding with Corporation Authorities have got entered the name of defendant No.1 in the B.B.M.P. records and Khata extract without disclosing the Will. The defendants denied that they are making hectic efforts to alienate 'B' schedule property and also disturb possession of the plaintiffs from the suit 'B' schedule property.
It is submitted that defendant No.1 is having absolute rights over the suit schedule 'A' and 'B' properties as her life interest which is clearly stated in the Will dated 07-06-2007 which is executed by her husband as his last wish. Now, defendant No.1 is aged more than 65 years and she is suffering from diabetic and arthritis and she is old aged, cannot be able to attend to her routine day-to-day works and she has to depend on others and the defendant No.2 who is her younger daughter is taking care of her mother as she only taken care of her and her late father till his death Cont'd..
-6- O.S. No.343/2009 as stated by her father in his Will dated 07-06-2007. It is submitted that at no point of time, plaintiffs being daughter and grandchildren of late M.R. Thimma Shetty did not bother to give love and affection and to take care at his old age and now, it is repeating towards defendant No.1 and instead of taking care of defendant No.1, the plaintiffs are very much anticipated to harass the defendants in one way or the other as much as possible with their ill acts with the support of father and husband of the plaintiffs respectively. It is submitted that the husband of plaintiff No.3 and father of plaintiffs 1 and 2 by name Gangaiah who is working as a Teacher in Government School is very much interested and spending all his time to give trouble to the defendants by colluding and instigating the plaintiffs. Though many a times they made complaints against the plaintiffs and Gangaiah for their illtreatment and harassment, they never stopped their immoral acts. It is submitted that now defendant No.1 is in need of more financial help as she is suffering from old age, disease like diabetes and arthritis and she is not able to move without the help of others. So, this Court be directed the plaintiffs to vacate schedule 'B' property as they are in illegal possession when defendant No.1 is very much alive. It is submitted that the plaintiffs are not at all having any right, title or interest over the suit schedule 'A' and 'B' properties when defendant No.1 is still alive.
As per the will and wish of late M.R. Thimma Shetty who is the husband of defendant No.1, after death of Cont'd..
-7- O.S. No.343/2009 defendant No.1, plaintiffs and defendant Nos.1 and 2 have the rights over suit schedule properties. With this submission, defendants prayed for dismissal of the suit.
4. On the basis of the above pleadings, this Court had framed the following Issues and Additional Issues -
ISSUES (1) Do the plaintiffs prove their lawful or settled possession over the B schedule property as on the date of the suit?
(2) Do the plaintiffs prove the
alleged interference by the
defendants?
(3) Whether the plaintiffs are
entitled for relief of permanent
injunction as prayed?
(4) What order or decree.
ADDITIONAL ISSUE No.1:
Do the plaintiffs prove invasion of
their right over the suit 'A'
schedule property as on the date
of the suit by the defendants as
alleged?
Cont'd..
-8- O.S. No.343/2009
5. In order to substantiate the plaint averments, plaintiff No.1 himself is examined as P.W.1 and got marked Exs.P.1 to P.6 and closed the side of the plaintiffs.
6. When the case was posted for defendants' evidence, second defendant herself is examined as D.W.1 and no documents got marked.
7. I have heard the arguments advanced from both the sides.
8. My findings on the above issues are as follows:-
ISSUE No.1 - Affirmative;
ISSUE No.2 - Affirmative;
ISSUE No.3 - Affirmative;
ISSUE No.4 - As per final order;
ADDITIONAL ISSUE No.1 - Affirmative, for the following -
REASONS
12. ISSUE No.1 AND ADDITIONAL ISSUE No.1 :
Since both these issued are inter-linked with each other, they are being taken up together for discussion at a stretch in order to avoid repetition of facts.
Cont'd..
-9- O.S. No.343/2009
13. It is the case of the plaintiffs that the grandfather of plaintiff No.3, viz., M.R. Thimma Shetty acquired suit schedule property under registered sale deed dated 03-01-1983. It is also the case of the plaintiff that the said M.R. Thimma Shetty had constructed an out-house towards southern side and eastern side. He has also constructed two houses and one got dug one bore well. It is also the case of the plaintiff that M.R. Thimma Shetty had executed Will in favour of the plaintiff on 07-06-2007 and he has also executed registered codicil Will on 10-01-2008 bequeathing 'A' schedule property in favour of defendant No.2 and bequeathing 'B' schedule property in favour of the plaintiffs. It is the case of the plaintiffs that the defendant No.1 being the mother of plaintiff No.3 as well as defendant No.2 by colluding with defendant No.2 attempting to interfere in the 'B' schedule property and they are trying to alienate 'A' and 'B' schedule properties in favour of third parties. With this submission, plaintiffs prayed for the relief of permanent injunction restraining the defendants or anybody claiming through them from interfering with the peaceful possession and enjoyment of the 'B' schedule property and for the relief of permanent injunction restraining them from alienating 'A' schedule property.
14. On the other hand, Advocate for the defendant has vehemently argued that there is no dispute with regard to acquisition of property by the father of plaintiff Cont'd..
- 10 - O.S. No.343/2009 No.3, defendant No.2 and husband of defendant No.1 and even there is no dispute with regard to execution of the registered Will dated 07-06-2007 and registered codicil dated 10-01-2008. Further, he has argued that the plaintiff No.3 being the daughter and plaintiffs 1 and 2 being grandchildren of M.R. Thimma Shetty did not bother to give love and affection and to take care of M.R. Thimma Shetty they are trying to harass defendant No.1 one or the other way. Further, he has argued that as per the contents of the Will, defendant No.1 is having life interest over entire schedule property therefore, the plaintiff is entitled to claim the relief of permanent injunction as Will operates only after the death of defendant No.1. Further, he has argued that the plaintiff is not in lawful possession over 'B' schedule property and plaintiffs have not proved alleged interference of the defendant over 'B' schedule property.
With this submission, Advocate for defendant prayed to answer Issue No.1 and Additional Issue No.1 as 'negative'.
15. On careful perusal of the pleadings as well as oral evidence of both sides, this Court is of the opinion that the plaintiffs have proved that they are in lawful possession over the 'B' schedule property as on the date of the suit. Plaintiffs have also proved invasion of their right over 'A' schedule property as on the date of the suit by the defendants as alleged. In the present case, there is no dispute with regard to acquisition of the Cont'd..
- 11 - O.S. No.343/2009 entire suit schedule property by late M.R. Thimma Shetty under registered sale deed dated 03-01-1993. Even it is not in dispute with regard to construction of two houses by M.R. Thimma Shetty and got the bore well dug in the suit schedule property. Even it is not in dispute that initially M.R. Thimma Shetty has executed registered Will dated 07-06-2007 bequeathing 'A' schedule property in favour of the plaintiff and 'B' schedule property in favour of the second defendant. It is also not in dispute that thereafter, M.R. Thimma Shetty has registered codicil Will on 10-01-2008 by correcting the boundaries of the properties and bequeathed 'A' schedule property in favour of defendant No.2 and bequeathed 'B' schedule property in favour of the plaintiffs. Even it is not in dispute that M.R. Thimma Shetty being grandfather of plaintiffs 1 and 2 and father of plaintiff No.3 and defendant No.2 husband of defendant No.1 died on 24-01-2008 leaving behind plaintiffs and defendants as his legal representatives.
16. Now, it is the case of the plaintiffs that they are in possession of 'B' schedule property as on the date of the suit. In support of their contention, plaintiffs have relied on the registered Will dated 07-06-2007 marked at Ex.P.1, registered codicil Will dated 10-01- 2008 marked as per Ex.P.2, Khata certificate marked as per Ex.P.3 and Khata extract marked as per Ex.P.4. Admittedly, Exs.P.3 and P.4 are standing in the name of defendant No.1 who is wife of M.R. Thimma Shetty as Cont'd..
- 12 - O.S. No.343/2009 well as mother of plaintiff No.3 and defendant No.2. Admittedly, plaintiffs have not produced any piece of document to show that they are in possession of 'B' schedule property. But the defendants in the written statement at Para No.13 have specifically admitted that the plaintiffs are in possession of 'B' schedule property and the possession of the plaintiffs over 'B' schedule property is an illegal possession. Apart from this in the cross-examination, P.W.1 has specifically deposed that since 30 - 35 years, they are in possession of 'B' schedule property. P.W.1 also deposed that since 30 - 35 years, defendants are in possession of 'A' schedule property. D.W.1 in the cross-examination, has clearly admitted that under the registered Will and codicil Will, one portion of the property was bequeathed to plaintiffs 1 and 2 and another portion of the property was bequeathed in favour of defendant No.2. D.W.1 also admitted that the plaintiffs are in possession of one portion of the property. These are the admission of defendants helpful to the case of the plaintiffs to prove that they are in lawful possession over the suit schedule property as on the date of the suit. It is settled principle of law that even if a trespasser, if he is in settled position of the suit schedule property as on the date of the suit, his possession should be protected and he should not be evicted without due process of law. No doubt the defendants in their written statement have prayed that an order be passed directing the plaintiffs to vacate the 'B' schedule property as they are in illegal Cont'd..
- 13 - O.S. No.343/2009 possession, the defendants have not filed any counter- claim seeking ejectment of plaintiffs from the 'B' schedule property with due process of law. Therefore, I am of the opinion that the plaintiffs have proved that they are in lawful possession over the suit schedule property as on the date of the suit.
17. On perusal of Exs.P.1 and P.2 which are the registered Will and registered codicil, they disclose that the husband of defendant No.1 being the grandfather of plaintiffs 1 and 2 and father of defendant No.2 has bequeathed his self-acquired property in favour of the plaintiffs 1 and 2 and defendant No.2. In the said document, M.R. Thimma Shetty has created life interest over the suit schedule property in favour of defendant No.1. In the said document, it is also mentioned that during her lifetime, defendant No.1 is entitled to enjoy the entire property as owner and she is entitled to receive the income fetches out of the said property. At the out set, plaintiffs and defendant No.2 cannot exercise their right of ownership over 'B' and 'A' schedule property respectively during the lifetime of defendant No.1. They are entitled to exercise their ownership over their respective properties after the death of defendant No.1. It is pertinent to note here that even defendant No.1 is not entitled to alienate entire suit schedule property in favour of third parties during her lifetime. When such being the contents of Exs.P.1 and P.2, I am of the opinion that plaintiffs and Cont'd..
- 14 - O.S. No.343/2009 defendant No.2 are not entitled to exercise their ownership over their respective shares mentioned in the registered Will and codicil during the lifetime of defendant No.1.
18. But the defendants in their written statement have admitted that the plaintiffs are in possession of 'B' schedule property. Possession of the plaintiffs is to be protected by way of a decree of permanent injunction. Though the plaintiffs have not produced any piece of document to show that they are in possession of 'B' schedule property, since the defendants has admitted possession of the plaintiff over 'B' schedule property, without more discussion, I am of the opinion that plaintiffs have proved that they are in lawful possession over the 'B' schedule property as on the date of the suit.
19. Plaintiffs have also sought for relief of permanent injunction restraining the defendants from alienating 'A' schedule property. As I have discussed above, neither the plaintiffs nor the defendants are having any right to alienate 'A' schedule property as per the contents of Exs.P.1 and P.2. In the said document, it has been specifically mentioned that the defendant No.1 is entitled to use the property during her lifetime and she is not entitled to alienate the schedule property. In the cross-examination, D.W.1 has specifically admitted that until defendant No.1 is alive, plaintiffs and rest of the defendants are not having any right, title or interest to alienate the suit schedule property. This Cont'd..
- 15 - O.S. No.343/2009 being the admission of P.W.1, I am of the opinion that plaintiffs have proved invasion of their right over the suit schedule property as on the date of the suit. Hence, my answers to the above issues are in the 'affirmative'.
20. ISSUE No.2 : It is settled principles of law that in order to obtain the relief of permanent injunction, plaintiffs have to establish lawful possession over the suit schedule property as on the date of the suit. Further, plaintiffs have to establish alleged interference of defendants over the suit schedule property.
21. In the present case, in the plaint as well as in the oral evidence, plaintiffs have taken the specific contention that the defendants are making hectic efforts to alienate 'B' schedule property and they are making hectic efforts to disturb possession of the plaintiffs from 'B' schedule property. Though P.W.1 is cross-examined at length, nothing has been brought on record to disbelieve her evidence. On the other hand, in the cross-examination, D.W.1 has clearly admitted that they have demolished the wall and made the existing portion as big one. D.W.1 has also admitted that there is a criminal case pending against them regarding demolition of wall, etc. This being the admission of P.W.1, I am of the opinion that the plaintiffs have proved alleged interference by the defendant over the suit schedule property. Apart from this, plaintiffs have produced copy of the plaint and a copy of the Cont'd..
- 16 - O.S. No.343/2009 representation submitted to the Revenue Officer,
B.B.M.P. which is marked as per Ex.P.6. Contents of the said documents are helpful to the case of the plaintiffs to prove alleged interference of the defendants over the suit schedule property. Hence, my answer to Issue No.2 is in the 'affirmative'.
22. ISSUE No.3 : Since plaintiffs have proved Issue Nos.1 and 2 and the Additional Issue No.1, plaintiffs are entitled for the relief of permanent injunction as prayed. Hence, my answer to Issue No.3 is in the 'affirmative'.
23. ISSUE No.4 : For the above said reasons and discussion on Issues 1 to 3 and Additional Issue No.1, I proceed to pass the following -
ORDER Suit filed by the plaintiffs against the defendants, is hereby decreed with cost.
Defendants or anybody claiming through them are hereby restrained from interfering with the peaceful possession and enjoyment of the 'B' schedule property by way of permanent injunction.
Defendants or anybody claiming through them are hereby restrained from alienating 'A' schedule property in favour of Cont'd..
- 17 - O.S. No.343/2009 any third person during the lifetime of defendant No.1 by way of permanent injunction.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 1st day of February, 2016.) (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
ANNEXURE
1. WITNESSES EXAMINED FOR THE PLAINTIFFS:
Examined on:
P.W.1 : Sagar 05-02-2010
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : Certified copy of the Will dated 7-6-2007. Ex.P.2 : Certified copy of codicil dated 10-01-2008.
Ex.P.3 : Khata certificate. Ex.P.4 : Khata extract. Ex.P.5 : Death certificate. Ex.P.6 : Copy of complaint dated 21-11-2008.
3. WITNESSES EXAMINED FOR THE DEFENDANTS:
D.W.1 : Padma T. 28-02-2014
2.DOCUMENTS MARKED ON BEHALF OF DEFENDANT:
Nil (PATIL NAGALINGANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..