Bangalore District Court
Mrs. V.K Sarala W/O C. Vishnu Mohan 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.
O.S No.17512/2004
Dated this the 22nd day of September 2021
Plaintiff 1. Mrs. V.K Sarala W/o C. Vishnu Mohan,
Aged Major, R/o No.23, Mosque Road,
Frazer Town, Bangalore-560 005.
(Rep by Sri 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 Jagadish,
Aged about 36 years, R/o.No.7,
Scientist Hotel, C.V.Raman Nagar,
DRO township, Bangalore-560 093.
2
Judgment O.S.No.17512/2004
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:
The plaintiff submits that she is absolute owner in possession and enjoyment of suit schedule property mentioned below:-3
Judgment O.S.No.17512/2004
:SUIT SCHEDULE PROPERTY:
All that piece and parcel of residential site bearing No.45 in a portion of house list katha 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 1200 Sft bounded by East: 25 feet existing road, West: House No.28, North: House No.36, South: House No.34.
3. The plaintiff further submits that defendants 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 Banglaore East Taluk) during the year 1991. The defendants No.1 to 3 obtained House List numbers and khatha from local Horamavu Panchayat. The defendants No.1 to 3 formed total number of 47 sites in the said layout as per the layout plan furnished to her and other site purchasers. The plaintiff submits she has purchased site No.35 in Schedule hereunder from defendants No.1 to 3 under registered sale deed on 18/12/1991. The jurisdictional village panchayat 4 Judgment O.S.No.17512/2004 has assessed the schedule property as residential site and has issued Khatha Extract under form No.10 in her name in respect of Schedule property and has collected up to date tax on the schedule property.
4. The plaintiff further submits that defendants No.1 to 3 furnished layout plan to her and other purchasers. With reference to the layout plan, she 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 who has helped the defendants No.1 to 3 to form the above said layout and canvassed site purchasers to buy sites in the above said layout.
5. The plaintiff further submits that she and many other persons purchased sites in the 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 purchasers including her and they put in actual possession and enjoyment of sites purchased by them. The plaintiff submits that she and other purchasers are in 5 Judgment O.S.No.17512/2004 peaceful possession and enjoyment of suit schedule property ever since they purchased sites from defendants No.1 to 3 thirteen years ago and all have constructed houses in their respective sites by obtaining license from Hormavu Panchayat.
6. The plaintiff further submits that such being the state of affairs on 21/10/2004 defendant No.5 appeared in the layout claiming that he has purchased land in the year 2004, where layout was formed thirteen years ago by defendants No.1 to 3 and suit schedule sites sold to her. The defendant No.5 claims that he has purchased agricultural land to an extent of 1 acre 7 guntas with 6 guntas Kharab land from defendants No.1 to 3 and their children under registered sale deed on 01/03/2004 and said defendant No.5 and his gang men threatened to dispossess her plaintiff from suit property and remove the boundary stones and fencing put up in the sites. The she and other site owners resisted illegal acts of the defendant No.5 and his men, police complaint was lodged by sites owners with the Ramamurthy Nagar police 6 Judgment O.S.No.17512/2004 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 defendants No.1 to 3 and sold all sites to different purchasers including her under different registered sale deed, defendants No.1 to 3 had no more rights, title or interest in respect of above said land wherein layout was formed during the year 1991 to sell to defendant No.5 under sale deed dated 01/03/2004. The alleged sale deed of agricultural land dated 01/03/2004 in favour of defendant No.5 in respect of very same land where the layout was formed by defendants No.1 to 3 in 1991 does not confer any title to defendant No.5 and said sale deed and same is illegal and null and void. The northern portion of Sy.No.81/2 in Horamavu village, wherein defendants No.1 to 3 formed layout was not an agricultural land since 1992.
The said fraudulent sale deed dated 01/03/2004 claimed by the defendant No.5 is fraudulent one and it is in respect of property which has already been transferred earlier to him and other site owners.
7
Judgment O.S.No.17512/2004
7. The plaintiff submits that she has legal right to peaceful possession and enjoyment of suit propery. The defendants No.1 to 3 by creating fraudulent title deed on 01/03/2004 in favour of defendant No.5 and bogus title documents are trying to interfere with peaceful possession and enjoyment of her suit property.
8. The plaintiff further submits that cause of action for this suit arose on 21/10/2004. The plaintiff prays to decree the suit for permanent injunction restraining the defendants, their heirs, successors, agent from interfering with the peaceful possession and enjoyment of the suit schedule property and award costs of this proceedings.
9. The defendant No.1 filed his written statement submitting that suit of plaintiff seeking declaration and other reliefs is not maintainable in law of on facts. The plaintiff and others have already filed suit in OS.No.16322/2005 on the file of this court against these defendants and others for the reliefs of declaration and other reliefs in respect of suit schedule property. Therefore present suit for injunction is 8 Judgment O.S.No.17512/2004 not maintainable in law and same is liable to be dismissed. The defendant No.5 also filed suit in OS No.3483/2005 against these defendants, plaintiff and others in respect of property in question and said suit is also pending in this court and there is no cause of action for the plaintiff to file this suit. The alleged cause of action is created and imaginary one. The plaintiff has no title to alleged suit schedule property. The alleged suit schedule property is not at all in existence as described in schedule to the plaint.
10. The defendant No.1 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, defendants No.1 to 3 have sold an extent of 1 acre 20 guntas of land in favour of Padmavathi Madireddy/defendant No.4 and retained 1 acre 7 guntas of land in said Sy.No.81/2 of Horamavu Village. 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 averments made in para 2 of the plaint 9 Judgment O.S.No.17512/2004 that the plaintiff is absolute owner in possession of the suit schedule property and defendants No.1 to 3 formed layout of sites in Northern portion of land in Sy.No.81/2 to an extent of 1 acre 24 guntas in Horamavu village, during the year 1991 and defendants No.1 to 3 obtained house list numbers and katha numbers from Horamavu Panchayat and defendants No.1 to 3 formed total number of 47 sites in the said layout as per the layout plan furnished to the plaintiff and other site purchasers is false and baseless.
11. The defendant No.1 denied the allegations of plaint paras No.3 to 9. The defendant No.1 submits that village Panchayat has no right to issue katha, form No.10 and there is no existence of said property at all in village panchayat records and it is not village panchayat property. The defendants have not furnished any layout plan to plaintiff. When they have not formed any layout plan, question of giving copy of layout plan does not arise. The defendants No.1 to 3 have not executed any GPA in favour of defendant No.4. They have not formed layout to an extent of 1 acre 24 10 Judgment O.S.No.17512/2004 guntas with 47 sites in the Northern portion of the land in Sy.No.81/2 and sale deed is not fraudulent one. The defendant No.1 prays to dismiss suit with exemplary costs.
12. That inspite of service of summons the defendant No.4 not appeared and placed exparte. The defendant No.5 appeared and filed his written statement. 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. Without seeking declaratory relief of title and consequential reliefs, the suit filed for bare injunction is not maintainable. The defendant No.5 submits that description of the property, its extent and boundaries mentioned in the schedule to plaint are not correct. The plaintiffs 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 having purchased site bearing house list No.1354/2 under the registered sale deed. 11
Judgment O.S.No.17512/2004 There cannot be site bearing house list number in agricultural land. The house list number indicates that roperty is Gramatana property. However 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 the sale deed & that said sites is within the Gramatana limits & then only plaintiff can claim right over suit schedule property.
13. The defendant No.5 further submits that plaintiff has no title and possession to the property as it is described in the schedule to the plaint. Hence plaintiff cannot value the site at Rs.1000/- U/S 26(c) of K.C.F & S.V. Act 1956. The plaintiff has to value suit at half of market value of suit schedule property and accordingly court fee has to be paid U/s 26(A) of K.C.F. and S.V. Act. If the plaintiff is failed to pay the court fee accordingly the plaint may be rejected. 12
Judgment O.S.No.17512/2004 There is no cause of action for the suit and hence plaintiff is not entitle for the relief of permanent injunction for want of cause of action.
14. The defendant No.5 denied allegations of plaint Paras No.2 to 10 as false. The defendant No.5 further submits that Narayanappa, Jayaram and Nagraj were title holders in possession and enjoyment of the 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 Padmavathi Madareddy, they have retained 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 said Narayanappa, Jayaram and Nagaraj have sold the said extent of 1 Acre 07 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk in his favour under registered sale deed on 03/01/2004 and by rectification deed dated 29/03/2004. Since from date of 13 Judgment O.S.No.17512/2004 purchase possession of land has been delivered, he is in possession of the said extent of land as an absolute owner and khata of property mutated in his name as per M.R No.48/03-04 and entered his name in the pahanies in respect of the aforesaid land. Then he approached survey department and said land in Sy.No.81/2 of Horamavu village, being surveyed and phoded, the land measuring an extent of 1-07 guntas 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 has not been converted for non-agricultural residential purposes and it remains as an agricultural land.
15. The defendant No.5 further submits that document upon which plaintiff is relying in support of his title and possession schedule property do not in any manner relate to the land in Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, hence the plaintiff can't claim any right of possession over any portion of land in Sy.No.81/3 (Old No.81/2) of Horamavu Village, 14 Judgment O.S.No.17512/2004 K.R Puram Hobli. The defendant No.5 prays to dismiss the suit of plaintiff with costs.
16. 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 from defendants?
(3) Whether the plaintiff is entitled to the reliefs claimed?
(4) What decree or order ?
17. 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.2 and marked ExD1 to ExD31.
18. The plaintiff counsel argued. The defendants No.1 to 3 counsel argued. The defendant No.5 counsel argued and filed written argument with citations.
15
Judgment O.S.No.17512/2004
19. 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:
20. Issues No.1 to 3:
The plaintiff V.K.Sarala W/o C.Vishnu Mohan filed her affidavit in lieu of examination in chief as PW.1 and deposed evidence that she is absolute owner and in possession and enjoyment of suit schedule property. She has purchased the same on 18/12/1991 from defendants No.1 to 3 under registered sale deed. During year 1991-1992 the defendants No.1 to 3 formed layout of residential sites with total number of 47 sites in northern portion of their land in Sy.No.81/2 of Horamavu village, K.R.Puram Hobli to an extent of 1 Acre 24 Guntas and sold said sites to different purchasers. She has purchased the site No.35 schedule 16 Judgment O.S.No.17512/2004 property from defendants No.1 to 3 and got changed khata in her name in the Horamavu Panchayat and she paid tax up to date to the Hormavu Panchayat and since then she is in peaceful possession and enjoyment of the suit schedule property.
21. The PW.1 further deposed evidence that defendants No.1 to 3 furnished layout plan to her and other purchasers. She purchased schedule property after identifying the Site No.35 from layout plan provided to her. She was put in actual physical possession and enjoyment of suit schedule site even since she purchased it about 15 years ago from the defendants No.1 to 3. Many other purchasers have already constructed their houses in their respective sites in layout purchased from the defendants No.1 to 3 after obtaining building licence from Horamavu Village Panchayat. On 21/10/2004 the defendant No.5 appeared in the layout with strange and equally untenable claim that he has purchased the land as agricultural land from the defendants No.1 to 3 and their children under sale deed on 01/03/2004, wherein 17 Judgment O.S.No.17512/2004 the layout was formed by the defendants No.1 to 3 during 1991-1992. The defendant No.5 threatened to dispossess her and other owners of sites, other owners lodged complaint in Ramamurty Nagar Police Station.
22. The PW.1 further deposed evidence that defendant No.5 is threatening to forcibly interfere with her and other site owners peaceful possession and enjoyment of their properties and the defendants are sending strangers to the lay out who claims to be the security persons of the defendants and those people are threatening to dispossess her from the suit schedule property and other site owners from their properties. These persons are also intruding to the privacy of the houses in the layout. The defendant No.5 has not acquired valid title, right or interest over the land in which the above said layout is formed and the sites were sold to different purchasers including her. The sale deed dated:01/03/2004 is fraudulent document and same is illegal, null and void and it does not confer any valid title on the defendant No.5 in respect of the land in Sy.No.81/2 18 Judgment O.S.No.17512/2004 Horamavu village. She has got legal right and peaceful possession and enjoyment over suit schedule property. The sale deed dated:01/03/2004 claimed by defendant does not affect her right and title to schedule property. She is entitle to protect possession of her suit schedule property. The PW.1 prays to decree the suit as prayed in plaint. In support of oral evidence PW.1 marked documents ExP1 to ExP7.
23. 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 the plaintiff filed suit for permanent injunction in respect of non exist 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 of him and his two brothers 19 Judgment O.S.No.17512/2004 namely Nagaraja, Jayaram and his sister Pullamma. The DW.1 further deposed evidence that their grandmother sold 1 acre 20 guntas in favour of Munivenkatamma of Southern Portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title, interest and possession as per her last will executed in their favor. They became the absolute owners of 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 and South remaining portion in Sy.No.81/2 sold to Munivenkatamma. That 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. The defendants No.1 to 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 20 Judgment O.S.No.17512/2004 defendant No.4 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 purchase Y.N.KondaReddy became the absolute owner in possession of said land and said land is bounded by East: land of Baluki Dasappa, West: Jayanthi Village, North: land of Yamanna, South: land of Padamavathi Madireddy. 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 in the year 1991 they have sold alleged site No.35 in alleged house list Katha No.135/4 of Horamavu village, K.R.Puram Hobli measuring 30 X 40 feet in favour of plaintiff false. 21
Judgment O.S.No.17512/2004 They have no such Katha property or sites at the alleged Horamavu village limits, the allegations of 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 and 135/4 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.
24. 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 22 Judgment O.S.No.17512/2004 Sy.No.81/2 in favour of Y.N. Kondareddy, the said land continued to be revenue assessed land entered in the RTC records maintained by 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 said land. They have not sold any piece or inch to anybody. The alleged sale deed of plaintiffs not reflect Survey number in which alleged sites are formed, That after alienating their 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.
25. 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 the defendants for relief of permanent injunction in respect of residential premises bearing site No.35 formed in northern portion of land in Sy.No.81/2 of Horamavu Village, 23 Judgment O.S.No.17512/2004 in house list katha No.135/4, K.R.Puram Hobli, Bangalore South Taluk measuring East to West : 30 feet and North to South : 40 with boundaries i.e., the suit schedule property. The suit filed by plaintiff for relief of permanent injunction in respect of alleged non existed suit schedule property is not sustainable either in law or on facts. Without seeking for declaratory relief of title mere suit for bare injunction is not maintainable in law and hence 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 defendants No.1 to 3 after enquiry and verifying the title of his vendor and comes to 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 has to be protected under law. The description of plaint schedule property extent 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 24 Judgment O.S.No.17512/2004 all pertaining to old Sy.No.81/2 and New No.81/3 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk. 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 plaint schedule, its boundaries and sale deed referred to in plaint is in respect of property situated in gramatana of Horamavu and not at all pertaining to agricultural land.
26. The DW.2 further deposed that there cannot be site bearing House list number in agricultural land. The house 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 25 Judgment O.S.No.17512/2004 South Taluk, and presently Bangalore East Taluk and contentions taken by plaintiff in pleadings and in evidence affidavit, documents relayed upon by him are different to each other and therefore the plaintiff is not entitled for any relief as sought for in plaint claiming suit property in portion of the land in Sy.No.81/2 of Horamavu village. That the plaintiff has to establish that there is site bearing house list No. with its extent and boundaries as mentioned in the sale deed and the said site is within the gramatana limits and then only plaintiff can claim right over the suit schedule property. The plaintiff failed to establish the property mentioned in the sale deed and also in the plaint schedule and as such suit has to be dismissed. The plaintiff is not having title and possession to the property described in the plaint schedule and as such plaintiff cannot value site at Rs.1000/- under section 26(C) of KCF and SV Act 1956. The plaintiff has to value suit on market value of 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. 26
Judgment O.S.No.17512/2004 The document produced by plaintiff are all concocted, created and got up documents. The documents are not at all existence in the Horamavu village panchayath. The vendor of plaintiff does not find place in the Horamavu village Panchayath. On the strength of created and concocted documents false suit filed against him on non existed 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. The defendant No.1 to 3 are 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 have sold to an extent of 1 acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour defendant No.4 Padmavathi Madireddy and they retained land measuring 1 acre 7 guntas and they were in possession and enjoyment of 1 acre 7 guntas of land as absolute owners. That the defendants No.1 to 3 and their children have sold the said 1 acre 7 guntas in Sy.No.81/2 of Horamvu Village in his favour under registered sale deed dated 27 Judgment O.S.No.17512/2004 01/03/2004 for valuable consideration. The vendors have noticed that there is some discrepancy in the boundaries and therefore they have executed registered 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. Since the date of purchase he is paying Kandayam in respect of the said property. That after purchase he approached the survey department to measure and fix boundaries in respect of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu Village. The survey authorities surveyed and fixed boundaries in respect of 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 vendor has not at all formed 28 Judgment O.S.No.17512/2004 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.
27. The DW.2 further deposed that averments made in para No.2 of the plaint that 47 sites have been formed in the land with boundaries therein is denied as false and baseless. Further averment that the defendants No.1 to 3 did not retain any right ant title over the northern portion of land in Sy.N.82/2 and the sites were formed therein is false. Further averments that since 1991 the defendants No.1 to 3 seized to be the owners of the land where in the alleged lay out was formed is denied as false and baseless. The DW.2 further deposed that averments made in para No.3 of the plaint that under the registered sale dated 20/02/2002 the Site No.35 alleged formed in Sy.No.81/2 of Horamavu village has been purchased by the plaintiff from his vendors Narayanappa, Nagaraj, Jayaram is false. The alleged layout plan and 29 Judgment O.S.No.17512/2004 documents of sale deeds and GPA are got up, concocted and created for the purpose of filing this suit.
28. The DW.2 denied the allegations of plaint paras No.4 to 10. 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, 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. That 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 Madireddy. The defendants No.1 to 3 have not entered into any other transactions with the defendant No.4 except the sale deed refer to above which has been executed by the defendants No.1 to 3. The defendants No.1 to 3 have not at all executed GPA in favour of the defendant No.4. No 30 Judgment O.S.No.17512/2004 power has been confirmed upon defendant No.4 under alleged GPA. After sale by defendants No.1 to 3 in his favour, defendants No.1 to 3 did not own and posses and 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 suit schedule property is portion of Sy.No.81/2 of Horamavu village. There are 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 plaintiff has produced number of documents. The documents produced are all village panchayath records are not all pertaining to Sy.No.81/2 or 81/3 of Horamavu village. He applied before the Right to information under the RTI Act. They have sent the information stating that the documents applied by him are not at all available in the said offices. The DW.2 further deposed evidence that plaintiff trespassed into the portion of land bearing (Old Sy.No.81/2) measuring 1 acre 7 guntas and New No. 81/3 of Horamavu village and got constructed the building. In that regard he filed suit OS No. 3483/2005 31 Judgment O.S.No.17512/2004 on the file of this court for the reliefs of declaration, mandatory injunction, possession and other reliefs. The said suit is filed not only against the plaintiff's 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 ExD31.
29. 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 1988 KAR 215, 7) ILR 1998 KAR 1, 8) AIR 1990 ORISSA 124, 9) AIR 2004 Karnataka 444, 10) (1998) 9 SCC 719, 11) AIR 1998 KAR 321, 12) 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 32 Judgment O.S.No.17512/2004 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 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.
33
Judgment O.S.No.17512/2004
30. The burden is on plaintiff to prove that she is absolute owner and in lawful possession and enjoyment of suit property as on date of suit and defendants caused interference to her possession and enjoyment over the suit schedule property. The contention of plaintiff that she purchased suit schedule property on 18/12/1991 from defendants No.1 to 3 under registered sale deed. During year 1991-1992 defendants No.1 to 3 formed layout of residential sites with total number of 47 sites in northern portion of their land in Sy.No.81/2 of Horamavu village, K.R.Puram Hobli to an extent of 1 Acre 24 Guntas and sold said sites to different purchasers. She has purchased site No.35 schedule property from defendants No.1 to 3 and got changed khata in her name in Horamavu Panchayat since then she is in peaceful possession and enjoyment of suit schedule property. On 21/10/2004 defendant No.5 with his gang and henchmen appeared in layout with untenable claim that he has purchased land as agricultural land, wherein the layout was formed by defendants No.1 to 3 about 13 years ago and sold the said sites to her and other purchasers. The 34 Judgment O.S.No.17512/2004 defendant No.5 claims that he has purchased land under registered sale deed on 01/03/2004 to an extent of 1 Acre 7 Guntas agricultural land from defendants 1 to 3 and their children, wherein the layout was formed. The defendant No.5 threatened her and other owners of sites and houses in the layout to give up their properties or else they would be forcibly evicted from our properties and defendant No.5 is interfering with her possession and enjoyment over the suit schedule property. The plaintiff examined as PW.1 as discussed above. In support of oral evidence the plaintiff/PW.1 marked ExP1 to ExP7.
31. The ExP1 is original sale deed dated 18/12/1991 executed by defendants No.1 to 3 in favour of plaintiff V.K.Sarala in respect of suit schedule property bearing Site No.35, Khata No.135/4 situated at Horamau village, K.R.Puram Hobli, Bangalore South Taluk bearing East to west 40 feet and North to South 30 feet. The ExP2 is demand register of Khata No.135/4 for the year 1991-93. The ExP3 to ExP5 are tax paid receipts. The ExP6 is 35 Judgment O.S.No.17512/2004 complaint given by plaintiff to Sub Inspector of Ramamurthy Nagar police station alleging about harassment to the residents by some miscreants. The ExP7 is layout of properties.
32. On the contrary the defendant No.1 examined as DW.1 as discussed above and he denied the allegation of the plaintiff that plaintiff is the owner of the suit schedule property and 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 Taluk (presently Bengaluru East Taluk) totally measuring 3 acres 17 guntas belongs 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 infavour of Munivenkatamma on the southern portion of Sy.No.81/2 and retained the remaining 36 Judgment O.S.No.17512/2004 land, on her death they acquired right, title and possession of said portion as per the last Will executed in their favour and they became the absolute owners of the land measuring 1 acre 37 guntas including kharab of 0.06 guntas in th said survey number, which is bounded on East by land of Baluki Dasappa, West by Jayanthi village, North by land of Yamanna and South by the 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. Konda Reddy became absolute owner in possession of land sold by them and same was bounded by East : Land of Balki Dasappa, West:by Jayanthi village, North:By land of Yamanna and South by land of Padmavahi Madireddy. In pursuance of the regisered sale deed in favour of Y.N. 37 Judgment O.S.No.17512/2004 Kondareddy he continued in possession of the said land and afterwards the said land was sub phoded as Sy.No.81/3.
33. The defendant No.5 said Y.N. Kondareddy examined as DW.1 and he deposed evidence as contended by defendant No.1 as discussed above as he purchased the 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 the ownership, title and possession of the plaintiff over the suit schedule property and also submits there is no existence of the suit schedule property within the boundaries as contended by the plaintiff. The defendant No.5 contention that plaintiff trespassed in the possession of the land bearing Sy.No.81/2 measuring 1 acre 7 guntas and new Sy.No.81/3 of Horamavu and got constructed the building and in this regard he filed the suit in OS.No.3483/2005 on the file of this court for the relief of declaration and mandatory injunction, possession and other 38 Judgment O.S.No.17512/2004 reliefs. The defendant No.5/DW.2 in support of oral evidence marked ExD1 to ExD31.
34. 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 OS.No.16322/2005 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, his wife and children, defendant No.2, defendant No.3, and his children in favour of defendant No.5 in respect of land measuring 1 Acre 07 plus 6 guntas kharab land in Sy.No.82/1 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 39 Judgment O.S.No.17512/2004 towards West: Jayanti Grama, Gomala land instead of land of Baluki Dasappa, towards 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 from 1 acre 07 guntas from defendants No.1 to 3 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 acre 7 Guntas of Horamavu village. 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. 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 as owner and cultivator of said land from the year 2004-2005 till 2009-2010. The ExD14 is certified copy of encumbrance certificate for the 40 Judgment O.S.No.17512/2004 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 Jayaramu in their records. The ExD16 is marked as certified copy of the sale deed dated 15/04/1972 in the evidence, but said document is not in readable condition. Hence the said document is not discussed. In ExD17 ten certified copies of endorsements issued by BBMP are marked as ExD17(1) to ExD17(10) 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 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 41 Judgment O.S.No.17512/2004 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 marked as certified copy of the Atlas relating to Sy.No.81/3, but same is not in readable condition. The ExD20 is certified copy of the endorsement issued by K.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 the 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. Kondareddy. 42
Judgment O.S.No.17512/2004
35. The ExD23 is certified copy of endorsement issued by Tahsildar, Bengaluru East Taluk informing that the land bearing Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village, K.R. Puram hobli, Bengaluru there is no order of conversion for non agriculture. In ExD24 two certified copies of tax paid receipts are marked. The ExD25 is certified copy of the application given by the Tahsildar by 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, 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 Kondareddy Y.N. and ExD28 is certified copy of order on IA.1 in the said suit. The ExD29 is certified copy of survey 43 Judgment O.S.No.17512/2004 sketch and ExD30 is certified copy of 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.
36. The contention of the plaintiff that she has purchased Site No.35 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 the ExP1 is original registered sale deed regarding purchase of Site No.35 by plaintiff from the defendants No.1 to 3. But in the plaint schedule the plaintiff contended the suit property as site bearing No.45 in a portion of house list katha No.135/4 of Horamavu Village K.R Puram Hobli, Bangalore South Taluk. Hence there is contradiction relating to site number. Further ExP2 DCB register, wherein Site number is not mentioned, ExP3 to ExP5 ares tax paid receipts. The 44 Judgment O.S.No.17512/2004 plaintiff has not produced katha extract and katha certificate of suit schedule property issued by BBMP to show that her name is appeared in the revenue records of BBMP. Further as per the 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 they have formed 47 sites in the said land and offer to sell the said sites, she has purchased the 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 sold the sites to different purchasers and sale of 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.
37. 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 45 Judgment O.S.No.17512/2004 he possession and enjoyment of said agricultural land. The defendant No.5 denied regarding formation of 47 sites in Sy.No.82/1 measuring 1 Acre 24 Guntas of Hormavur. In support of his oral contention the DW.2 marked ExD5 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 2004-2005. The DW.2 has 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 the ExD13(1) to ExD13(4) are records of rights of Sy.No.81/2 46 Judgment O.S.No.17512/2004 measuring 1 acre 7 guntas of Horamavu village in the year 2004-2005 till 2009-2010 discloses the name of defendant No.5 Y.N. Kondareddy as owner and cultivator of the said land. Under the circumstances 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. 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 the concerned authority along with layout plan, sketch of the said land and also house list numbers given to the said 47 sites by the concerned revenue authority. The plaintiff contended that to the suit property house list katha No.135/4 of Horamavu village was given. But to prove said fact there is no specific document produced by the plaintiff. Further PW.1 in her cross examination deposed evidence that "I know what is NA. Sy.No.81/2 is made NA. I can not say who has passed order for conversion of the land. I have not produced 47 Judgment O.S.No.17512/2004 layout plan. I have produced my sale deed, survey number is not shown in sale deed. There is map to show that katha No.135/4 is situated in Sy.No.81/2". The PW.1 further deposed evidence that "I have purchased gramathana property. Now I see my sale deed. I know the contents of sale deed. In the sale deed the schedule property is in respect of gramathana. Remaining all documents marked by me as ExP2 to P7 are in respect of gramathana property. It is true to suggest that all ExP1 to P7 do not disclosed that property is purchased in Sy.No.81/2".
38. Therefore the evidence of PW.1 discloses that there is no conversion order of land, and in her sale deed there is no mention about survey number. 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. In ExP1 sale deed there is no mention that in which survey number suit site is formed. The documents produced by the plaintiff are not suffiient to 48 Judgment O.S.No.17512/2004 come to conclusion that plaintiff is lawful owner and in possession 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.
39. 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 49 Judgment O.S.No.17512/2004 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 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 50 Judgment O.S.No.17512/2004 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 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 51 Judgment O.S.No.17512/2004 applies to the present case in hand, as in the present suit the plaintiff failed to prove her lawful 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 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.
40. 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.52
Judgment O.S.No.17512/2004
:ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: V.K.Sarala W/o C.Vishnu Mohan
DOCUMENTS MARKED FOR THE PLAINTIFF
ExP1: Original Sale deed
ExP2: DCB Register extract
EXP3 to 5: Tax paid receipts
ExP6: Copy of complaint
ExP7: Copy of layout plan
WITNESSES EXAMINED FOR THE DEFENDANTS
DW.1: Narayanappa S/o Venkataswamappa @ Chikkabbaiah DW.2: Y.N.Kondareddy S/o Narayana Reddy DOCUMENTS MARKED FOR THE DEFENDANTS ExD1: Certified copy of plaint in OS.No.3483/2005 ExD2: Certified copy of W.S in OS.No.3483/2005 ExD3: Certified copy of plaint in OS.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 53 Judgment O.S.No.17512/2004 ExD13(1) to (4) Certified copies of RTC ExD14: Certified copy of Encumbrance Certificate ExD15: Certified copy of Endorsement by Horamavu Grama Panchayath ExD16: Certified copy of Sale deed dated ExD17 (1) to (16) Certified copy of endorsement ExD18(1) to 18(3) Certified copy of Mutation Register extracts ExD19: Certified copy of Atlas copy ExD20: Certified copy of endorsement ExD21: Certified copy of RTI information by Sub-Registrar, Banaswadi ExD22: Certified copy of Endorsement ExD23: Certified copy of Endorsement ExD24(1) & 24(2) Certified copies of Receipts ExD25: Certified copy of Application given to Tahasildar ExD26: Certified copy of Sale deed dated 17/07/1991 ExD27: Certified copy of Order sheet in OS.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 XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.