Bangalore District Court
Sri.G.Lakshman Singh vs Mr.H.Dwarakanath on 11 February, 2022
KABC010152062015
IN THE COURT OF THE XI ADDL., CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY (CCH-8).
PRESENT: Smt. PREETHI K.P,
B.A.L., LL.M.,
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this the 11th day of February, 2022.
O.S.No.5846/2015
Plaintiff:- Sri.G.Lakshman Singh,
Aged about 75 years,
S/o.late Gangaram Singh,
Residing at No.7/1,
Nandanavana 'G' Street,
Jogupalya, Ulsoor,
Division No.51,
Bangalore - 560 008.
(By Adv. Shyamprasanth)
Vs.
Defendants:- 1. Mr.H.Dwarakanath,
2 O.S.No.5846/2015
Aged about 62 years,
S/o. late Krishnamurthy,
2. Smt.Sandhya.D.
Aged about 29 years,
D/o.H.Dwarakanath,
Both are residing at
No.231, 2nd Cross,
Cambridge Layout,
Ulsoor,
Bangalore - 560 008.
(D1 & D2 by Adv. Mohan Bhat)
Date of institution of the suit : 04.07.2015
Nature of the suit : Permanent Injunction
Date of commencement of : 27.11.2017
Recording of the evidence
Date on which the Judgment : 11.02.2022
was pronounced
Total Duration : Years Months Days
06 07 07
(PREETHI.K.P)
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
3 O.S.No.5846/2015
JUDGMENT
The present suit is filed by the plaintiff against the defendants for the relief of permanent injunction, restraining the defendants or their agents or anybody claiming under them from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property and such other reliefs.
2. The case of the plaintiff is that, plaintiff's wife Smt.Janaki Bai was the absolute owner and in possession and enjoyment of suit schedule property bearing No.7/1, being portion of Old No.7, Property ID No.75-57-7/1, situated at Nandanavanam 'G' Street, Jogupalya, Ulsoor, Bangalore, measuring East to West:20 feet and North to South:25 feet, totally measuring 500 square feet, having acquired the same through registered sale deed dated 09.03.1994 executed by Sri.G.Lok Mohan Singh. Said Sri.G.Lok Mohan Singh acquired the same through registered sale deed dated 20.11.1978. Khatha of the suit schedule property stand in the name of Smt.Janaki Bai till today. Smt.Janaki Bai died on 06.07.2014 and after her death, plaintiff continued in peaceful possession and enjoyment of the suit schedule property. Due to old age and bad health condition, the plaintiff has not approached the BBMP for transfer of khatha of the suit schedule property in his name till date. The defendants without any right, title and interest over the suit schedule property, tried to illegally dispossess the plaintiff from the suit schedule property and with great difficulty, plaintiff resisted the same. Plaintiff is the absolute owner and is in lawful 4 O.S.No.5846/2015 possession and enjoyment of suit schedule property. The defendants threatened the plaintiff, hence the plaintiff approached the jurisdictional police, but they advised the plaintiff to approach the Civil Court. Hence, Hence the plaintiff has filed the present suit and prays to decree the suit.
3. In response to the suit summons, defendant Nos.1 and 2 appeared through their counsel and filed the written statement. In the written statement, defendants contend that plaintiff's son Lohith Singh i.e., husband of defendant No.2 filed M.C.No.754/2007 for dissolution of marriage against defendant No.2 and on the contrary, defendant No.2 filed M.C.No.1770/2007 for restitution of conjugal rights and she also filed C.Misc.470/2006 for maintenance and PCR.No.179/2007 in Crime No.193/2007 and also filed a complaint before Halasoor Gate Mahila Police in Crime No.10/2006 for the offences punishable under Section 498A and 506(B) read with Section 34 of IPC and after investigation, Investigation Officer filed charge sheet in C.C.No.95/2007. Thereafter, defendant No.2's daughter Neha @ Rakshita filed Ex.Case No.125/2015 represented by her mother i.e., defendant No.2 as she was a minor. Eventually, all the matters were referred to Mediation Centre for settlement and as per the covenants of the Settlement Agreement (Memorandum of Settlement) Smt.Janaki Bai had agreed to gift the schedule property in favour of defendant No.2's daughter Neha @ Rakshita and accordingly, she executed a Gift Deed dated 19.08.2008. As per the Settlement 5 O.S.No.5846/2015 Agreement, it was agreed by the parties that, Smt.Janaki Bai is entitled to be in possession of the schedule property till her death and in the event of Smt.Janaki Bai pre-deceased her husband, her husband has a right to stay in the house for a period of one year from the date of death of Smt.Janaki Bai and Smt.Janaki died on 06.07.2014. As per Memorandum of Settlement, plaintiff along with his son could stay in the suit schedule property till 05.07.2015. The plaintiff deliberately failed to adhere to the terms and conditions of Settlement Agreement. Hence defendant No.2's daughter filed I.A. under Order XXI Rule 95 read with Section 151 of CPC, for delivery of vacant possession of the schedule property in her favour in Ex.Case No.125/2015. Hon'ble II Additioanl Principal Family Judge by an order dated 16.12.2015 allowed the said application. Plaintiff and his son have dishonoured the order passed by the court. Hence, defendant No.2's daughter filed another I.A. under Order XXI Rule 95 of CPC to break open the lock of the schedule property with police protection. Court Ameen along with Ulsoor Police went to the schedule property on 21.01.2016 and broke open the lock of the schedule property, accordingly mahazar was also drawn and possession of the schedule property was given to defendant No.2's daughter. The plaintiff has filed W.P.No.3449/2016 before the Hon'ble High Court and plaintiff took the contention that plaintiff was not made as a party neither in M.C. petitions nor in the Memorandum of Settlement. Plaintiff could not be made as a party in M.C. petition 6 O.S.No.5846/2015 because M.C. petition is a matrimonial case between husband and wife. Plaintiff gone to the extent of deliberately making his son as one of the respondents in writ petition. He might have done this act despite knowing the fact that Gift Deed was duly executed by his late wife as per memorandum of settlement and encumbrance certificate reflects the name of his grand daughter. Defendants specifically denied all other allegations made by the plaintiff in the plaint. Hence, prays to dismiss the suit with exemplary costs.
4. On the basis of the above pleadings, my learned predecessor at office has framed the following issues:-
ISSUES
1. Whether plaintiff proves that he is in actual possession and enjoyment of the suit schedule property as described in the plaint schedule as on the date of suit?
2. Whether plaintiff proves the alleged interference by the defendants?
3. Whether plaintiff is entitle for the relief claimed?
4. What order or decree?
5. To prove the case of the plaintiff, plaintiff examined himself as PW-1 and got marked Ex.P1 to P8. Ex.D1 to D3 were confronted to PW-1. GPA Holder of defendants examined as DW-2 and got marked Ex.D4 to D11.7 O.S.No.5846/2015
6. Learned counsel appearing for defendants addressed arguments. Learned counsel appearing for plaintiff filed written submission.
7. My answers to the above issues are as follows:-
Issue No.1: In the affirmative;
Issue No.2: In the negative;
Issue No.3: In the negative;
Issue No.4: As per final order
for the following reasons:
REASONS
8. Issue Nos.1 to 3:- All these issues are interlinked with each other hence, I answer in common for all these issues to avoid repetition of facts.
9. Plaintiff was examined as PW-1, who has filed examination-
in-chief by way of affidavit by reiterating the plaint averments and got marked Ex.P1 to P8. It is the case of the plaintiff that, his wife Smt.Janaki Bai was the absolute owner and in possession and enjoyment of the suit schedule property bearing No.7/1, being portion of Old No.7, Property ID No.75-57-7/1, situated at Nandanavanam 'G' Street, Jogupalya, Ulsoor, Bangalore, having acquired the same through a registered sale deed dated 23.03.1994. Said Smt Janaki Bai died intestate on 06.07.2014.
8 O.S.No.5846/2015Therefore, he became the absolute owner of the suit schedule property and he has been in possession of the same. On the other hand, defendant No.2 was the daughter-in-law of plaintiff and defendant No.1 is the father of defendant No.2. It is the contention of defendant No.2 that she was married to the son of plaintiff and there was a matrimonial dispute between them, consequently in M.C.No.754/2007 c/w C.Misc.No.470/2006 & c/w M.C.No.1770/2007 compromise was entered between the parties. In the compromise, it was agreed that Smt.Janaki Bai i.e., wife of plaintiff shall give the suit schedule property to daughter of defendant No.2 who is the grand daughter of plaintiff. Accordingly, Smt.Jaanki Bai wife of plaintiff got gifted the suit schedule property by way of registered Gift Deed dated 19.08.2008 in favour of her grand daughter i.e., daughter of defendant No.2. But plaintiff has not delivered the possession, hence defendant No.2 being a mother and natural guardian of her minor daughter, filed execution petition before the Family Court at Bengaluru. In execution proceedings, on the application filed by defendant No.2 under Order XXI Rule 95 of CPC, to break open the lock of the suit schedule property with police police protection, the Court Ameen along with Ulsoor Police went to the suit schedule property on 21.01.2016 and broke open the lock of suit schedule property, accordingly mahazar was also drawn and possession of the suit schedule property was also given to the daughter of defendant No.2 on 21.01.2016. But plaintiff had filed W.P.No.3449/2016 before the Hon'ble High Court of Karnataka.
9 O.S.No.5846/201510. It is not in dispute that, the wife of plaintiff was originally the owner of the suit schedule property, she has purchased the same through a registered sale deed dated 23.03.1994. It is not in dispute that there was a matrimonial dispute between plaintiff's son and defendant No.2, therefore litigation reached the court in M.C.No.754/2007 c/w C.Misc.No.470/2006 & c/w M.C.No.1770/2007. Parties have filed memorandum of settlement in M.C.No.754/2007 c/w C.Misc.No.470/2006 & c/w M.C.No.1770/2007. Late Smt.Janaki Bai i.e., wife of the plaintiff agreed to execute registered Gift Deed in respect of suit schedule property in the name of her grand daughter Neha @ Rakshita i.e., daughter of defendant No.2. It is also not in dispute that consequent upon the terms of compromise petition, Smt.Janaki Bai executed registered Gift Deed dated 19.08.2008 in favour of minor daughter of defendant No.2 in respect of suit schedule property and the said registered Gift Deed has not been challenged so far by the plaintiff. It is true that in the cross-examination of PW-1, it was elicited that plaintiff is in possession of the suit schedule property. At this juncture, it is relevant to reproduce para 10 of Ex.D3 memorandum of settlement hereunder:
"10. The mother of the petitioner smt.Janaki Bai is the sole owner of House property bearing No.7/1 situated at Nandavanam 'G' Street, Jogupalya, Ulsoor, Division No.51, Bangalore on site measuring East to West:20 feet and North to South: 25 feet with 10 O.S.No.5846/2015 a dwelling house thereon, in which the parents of the petitioner are currently living. The mother of the petitioner has agreed to gift the said property to the above named child Neha @ Rakshita her grand child out of her own free will, following proper legal procedure and documentation to be executed by her within five weeks from today by means of conditional gift deed which shall provide for the donor the petitioner's mother, to live in the said house undisturbed during her life time. In the event the petitioner's mother predeceases the petitioner's father, the petitioner's father shall have the right to stay in the house for a period of one year from the date of deat of the donor, after which, the said house would pass on to the child Neha @ Rakshita. As Neha @ Rakshita is a minor the mother i.e., the respondent will act as her natural guardian and act in such a way the minor's interest is not prejudiced i.e., she will not sell or encumber on the property till Neha @ Rakshita attains majority."
11. In compliance of compromise petition, registered gift deed was also executed by the mother-in-law of defendant No.2 on 19.08.2008. At this juncture, it is relevant to reproduce para No.2 of page No.5 of registered gift deed dated 19.08.2008 as hereunder:
11 O.S.No.5846/2015"The donor thus hereby reserves the right by way of right of residence during her life time in the schedule property and also reserves the right of residence in favour of her huband during her life time and for extended period of 1 year after the date of death of the donor in the even of the donor predeceasing her husband Sri.Lakshman Singh."
12. Therefore, it is clear that registered Gift Deed was executed in pursuance of the compromise terms in favour of minor child of defendant No.2 i.e., Neha @ Rakshita and as per the recitals of registered Gift Deed at Ex.D7, if Smt.Janaki Bai plaintiff's wife predeceased her husband than the husband has to vacate the suit schedule property within one year from the date of death of her wife. The evidence on record clearly points out that, the title in respect of the suit schedule property has already been transferred in the name of minor child Neha @ Rakshita i.e., daughter of defendant No.2 by virtue of registered Gift Deed dated 19.08.2008. The transfer of title in respect of the suit schedule property in favour of daughter of defendant No.2 neither disputed nor challenged by the plaintiff. Therefore, it is clear that though plaintiff is in possession of the suit schedule property, the title is with the minor child of defendant No.2. The title transferred in the name of daughter of defendant No.2 is also through compromise petition entered between the parties in the court and therefore, the title is validly 12 O.S.No.5846/2015 transferred by plaintiff's wife in favour of her grand daughter Neha @ Rakshita i.e., daughter of defendant No.2 by the virtue of registered Gift Deed dated 19.08.2008.
13. The next issue that required to be considered is, whether plaintiff is entitle for an order of injunction against the defendants on the basis of possession of the plaintiff in respect of the suit schedule property. The relief of injunction is purely a discretionary and equitable relief. Therefore, while granting an order of injunction, the court is expected to see the conduct of the parties and also consequences for grant of injunction. Apart from this, the court is required to consider whether the interference alleged is illegal interference. In the present suit, plaintiff's wife late Smt.Janaki Bai executed registered Gift Deed dated 19.08.2008 in favour of minor daughter of defendant No.2 and plaintiff should have delivered the possession of the suit schedule property in favour of his grand daughter within 1 year after the death of Smt.Janaki Bai. Admittedly Smt.Janaki Bai died on 06.07.2014 and during her life time, she has executed a registered Gift Deed and transferred the title in respect of suit schedule property in favour of her minor grand daughter Neha @ Rakshita. The defendant No.2 is a mother and natural guardian of her minor child Neha @ Rakshita. As per the terms of the compromise petition in M.C.No.754/2007 c/w C.Misc.No.470/2006 & c/w M.C.No.1770/2007 defendant No.2 shall act in the best interest of her minor child Neha @ Rakshita all the times in respect of the suit schedule property. Though defendants 13 O.S.No.5846/2015 can interfere with the possession of the suit schedule property only in accordance with law, there is nothing wrong on the defendants to insist the plaintiff to deliver the possession. Therefore, insistence of defendants to deliver the possession cannot be treated as illegal interference over the suit schedule property when the plaintiff is fully aware of the terms of the compromise entered by the parties before the court and also execution of registered gift deed dated 19.08.2008 in favour of minor child Neha @ Rakshita grand daughter of plaintiff. He was expected to give effect to registered Gift Deed dated 19.08.2008 executed by the owner of the suit schedule property. But the plaintiff is illegally squatting over the suit schedule property to deprive the right of minor child. The plaintiff has not only disobeyed the order of the compromise entered between the parties, but also acting against the will of the donor of the suit schedule property who has executed a registered gift deed during her life time in favour of her grand daughter Neha @ Rakshita. Therefore, evidence clearly shows that plaintiff has not approached the court with clean hands. Hence, conduct of the plaintiff is totally against the rule of law as well as the interest of the minor and other parties. Since the gift deed dated 19.08.2008 was executed in favour of minor, therefore any decree passed in favour of plaintiff will seriously effect the right of the minor who is not even made as a party in the present suit. Whenever rights of minor is involved the court is expected to take extra caution to protect the interest of the minor. The court is expected to deliver the judgment on the basis of judicial 14 O.S.No.5846/2015 principles, equity, justice and good conscience which are required to be taken into consideration while deciding the disputed issue. The claim of the plaintiff is against equity, justice and good conscience. Therefore, merely because plaintiff is in possession of the suit schedule property, the discretionary and equitable relief cannot be granted in favour of the plaintiff. In view of the above discussions, the court is of the opinion that plaintiff is not entitled for the relief as claimed. Hence, I record my answer on Issue No.1 in affirmative and Issue Nos.2 and 3 in the negative.
14. Issue No.4: In view of my discussions made above and also my findings on the above issues Nos.1 to 3, I proceed to pass the following:-
ORDER Suit is dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, typed by her, corrected and then pronounced by me in open court on this the 11th day of February, 2022) (PREETHI.K.P) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.15 O.S.No.5846/2015
ANNEXURE List of witnesses examined for plaintiff:
PW.1 - Sri.G.Lakshman Singh
List of documents exhibited for plaintiff:
Ex.P1 : Original Sale Deed dated 09.03.1994
Ex.P2 : Original Sale Deed dated 20.11.1978
Ex.P3 : Khata Extract
Ex.P4 : Khata Certificate
Ex.P5 : Death Certificate of Janaki Bai
Ex.P6 : Encumbrance Certificate
Ex.P7 : Khata Certificate
Ex.P8 : Katha Extract
List of witnesses examined for defendants:
DW.1 - Sri.B.A.Vasudeva
DW.2 - Sri.B.A.Vasudeva
List of documents exhibited for defendants:
Ex.D1 : Certified copy of Order Sheet on the file of M.C.No.754/2007 Ex.D2 : Certified copy of Decree on the file of M.C.No.754/2007 Ex.D3 : Certified copy of Memorandum of Settlement on the file of M.C.No.754/2007 C/w C.Misc.No.470/2006 & C/w M.C.No.1770/2007 16 O.S.No.5846/2015 Ex.D4 : Special Power of Attorney Ex.D5 : Certified copy of Petition on the file of Ex.
Case No.125/2015
Ex.D6 : Certified copy of Order Sheet on the file of
Ex. Case No.125/2015
Ex.D7 : Certified copy of Gift Deed dated
19.08.2008
Ex.D8 : Certified copy of Bailiff's Report on the file
of Ex. Case No.125/2015
Ex.D9 : Certified copy of Vakalath on the file of Ex.
Case No.125/2015
Ex.D10 : Certified copy of Spot Mahazar on the file of Ex. Case No.125/2015 Ex.D11 : Certified copy of Encumbrance Certificate XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.