Bangalore District Court
Sri.A.Venkatalingaiah vs Madesha on 26 November, 2015
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Ms.VELA.D.K., B.A.L., LL.B., (Hon's)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 26th day of November, 2015
O.S.No.6750/2002
Plaintiff/s : Sri.A.Venkatalingaiah,
s/o. late A.Rangaiah,
aged about 47 years,
r/at No.341/24/1, 8th cross,
Wilson Garden,
Bangalore-560027.
(By Sri.K.S.Nandish Babu,
Advocate)
- Vs -
Defendant/s : 1. Madesha, s/o. late Krishnappa,
32 years, r/at Garvebhavipalya,
Begur Hobli,
Bangalore South Taluk.
2. Manjunatha,
s/o. late Krishnappa, 25 years,
r/at Garvebhavipalya,
Begur Hobli,
Bangalore South Taluk.
3. Mungaiah, s/o. late Krishnappa,
22 years, r/at Garvebhavipalya,
Begur Hobli,
2 O.S.No.6750/2002
Bangalore South Taluk.
4. Kamalamma,
w/o. late Krishnappa, 50 years,
r/at Garvebhavipalya,
Begur Hobli,
Bangalore South Taluk.
5. T.Neelakantappa,
s/o. late Bayappa, 50 years,
r/at No.403, 4th floor,
Prosper Lakeshore Apartment,
No.550, 35th Main Road,
4th cross, BTM Layout,
Bangalore-560076.
6. Smt.Yashodamma,
Daughter-in-law of
Chikkabidappa,
w/o. late Chinnappa, 60 years
7. Sri.Venkataswamappa,
s/o. Chikkabidapa, 56 years
8. Narayanappa,
s/o. Chikkabiddappa, 56 years.
9. Sri.Ramappa,
s/o. Chikkabiddappa, 56 years
Sl.No.6 to 9 are r/at
Garvebhavipalya village,
Hongasandra Dhakle,
Begur Hobli,
Bangalore South Taluk.
(By Sri.Manjunatha,
Advocate)
3 O.S.No.6750/2002
Date of institution
of the suit : 05-10-2002
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Declaration, Possession
and Permanent Injunction
Date of the commencement
of recording of the evidence: 21-04-2009
Date on which the
Judgment was pronounced : 26-11-2015
Year/s Month/s Day/s
Total Duration -13- -01- -21-
JUDGMENT
This is a suit for Declaration, Possession and Consequential relief of Permanent Injunction.
2. The case of the plaintiff is that he is the absolute owner of the Gramatana property which is the suit property. He is said to be a business man in edible oil and thereby frequently to be out of station. Out of his life time savings, the plaintiff was said to be able to purchase the suit property from his vendors Yashodamma, Venkataswamappa, Narayanappa, Krishnappa and Ramappa vide sale deed dated 02-03-1995. The suit schedule 'A' property is said to be in the name of plaintiff till date and 4 O.S.No.6750/2002 the defendants are said to be sons and wife respectively of one of the vendor late Krishnappa. The vendors of the plaintiff is said to have absolute authority to transfer the suit schedule property by way of sale in favour of the plaintiff. In pursuance of the sale deed, the plaintiff was said to have been put in physical possession of the schedule property by his vendors. After the registration of the sale deed, the plaintiff is said to have approached the revenue authorities to enter his name in regard to the suit schedule property. The plaintiff is said to have stored empty oil can and gunny bags in the small house existed in the portion of the schedule property. He was said to be in lawful possession over the suit schedule property. In November 2001, the plaintiff was said to be shocked to see that the defendants to have trespassed the portion in the schedule 'A' property and wrongfully altered earlier existed one floor building. Further to have unauthorisedly constructed the house in the place of old house covering an area measuring 25 X 15 feet. This is said to have been by taking advantage of the absence of the plaintiff. Thereby the defendant is said to be in unauthorized premises i.e., suit schedule 'B' property. The plaintiff was said to be constrained to approach the police authorities for the trespass of the defendants, but the police authorities are said to have 5 O.S.No.6750/2002 opined that the matter to be of civil in nature. The defendants are said to have committed trespass in the property of the plaintiff and to be in unlawful possession and to have no right to remain in the possession of the portion of the property i.e., 'B' schedule property. The defendants are said to have indulged in all sorts of illegal acts and threatened the plaintiff with dire consequences. The plaintiff is said to have apprehended that the defendants to even encroach the portion left in the schedule 'A' property. Hence, filed the suit.
3. In the written statement the specific contention of defendants No.1 to 4 is that late Krishnappa i.e., father of defendants No.1 to 3 and husband of defendant No.4 not to own the property bearing Gramatana site No.27/1A. The property was said to not exist with Krishnappa in the khatha No.108. The vendors of the plaintiff is said to have never enjoyed the suit schedule property and the boundaries mentioned in the suit schedule property is said to have never been existed at any point of time. The vendors of the plaintiff were said to be not in possession and enjoyment of the suit schedule property. The plaintiff is said to be stranger to the defendants and therefore defendants are said to have never trespassed the property 6 O.S.No.6750/2002 of the plaintiff. Late Krishnappa is said to have constructed cow shed in the property bearing Sy.No.42/1 of Garvebhavipalya of western side roughly about 6 square sheeted house. The said house is said to be at a distance of 1 kilometer from the Garvebhavipalya and now the defendants are said to be residing in the cow shed from 1997-98. They are said to have taken electrical connection from the K.E.B. to dig the well for water and the remaining portion of the land towards eastern site they are said to have banana plantation and also grown vegetables from the date of partition cum will executed by the father of late Krishnappa. This is said to be in terms of the partition cum will dated 06-12-0976. After the demise of late Krishnappa, defendants No.1 to 4 are said to be the joint owners of the property bearing Sy.No.42/1 to an extent of 16guntas which is said to be the ancestral property. The father of defendants No.1 to 3, late Krishnappa is said to have passed away on 14-03-2002 and after his demise, the defendants are said to be peacefully enjoying the entire property of Sy.No.42/1 and residing in the house constructed in the said survey number without any interruption. Their grand father Munivenkatappa @ Chikkagiddappa is said to have made partition of the entire property and himself executed the will dated 06-12-1976 in 7 O.S.No.6750/2002 favour of his 5 sons including the father of the defendant. Late Krishnappa is said to have got 'D' schedule property including Sy.No.42 which is said to have now changed as 42/1 measuring 16 guntas of Garvebhavipalya bounded on East by Bande, West by Tank bund, North by portion given to Narayanappa and South by portion given to Ramappa. After the demise of their grand father, late Krishnappa was said to have enjoyed the Sy.No.42/1 to an extent of 16 guntas along with other properties and to have got his name entered in the revenue records and thereby paying tax to the concerned panchayath. In 1989, on account of ill-health Krishnappa is said to have made partition among the four sons and daughters in the presence of panchayathdars and executed partition deed dated 08-12- 1989. Even after the partition, defendants No.1 to 3 are said to be residing jointly on advise of elders and looked after their daughter Krishnappa. Till today, the defendants No.1 to 3 are said to reside jointly along with the defendant No.4 and enjoying their respective shares peacefully. They are said to have applied for the changing the khatha in their name as per the partition of their late father Krishnappa. The defendants and late Krishnappa are said to have never formed any site in the Sy.No.42/1 and further the alleged site bearing No.27/1A, khatha No.108 with boundaries 8 O.S.No.6750/2002 mentioned in the schedule was said to have never existed in Sy.No.42 and also the father of defendants is said to have not owned that type of property at any point of time. The suit schedule property is said to have been not covered in the will executed by late grand father Chikkabiddappa. The sale deed executed by the vendor of the plaintiff was said to be created documents and therefore not binding on the defendants No.1 to 4 because that type of property was said to have never existed.
Sy.No.42/1 is said to be situated nearly one kilometer from the village and it is said to be still in survey number. Therefore, the defendants are said to have constructed cow shed towards western side of the property and residing from 1997-98. The house is said to be bounded East by remaining land, West by Tank Bund and passage, North by portion of Narayanappa's property, South by Ramaiah's property and the defendants are said to have not constructed house in Gramatana which is said to be purely revenue land. The land is said to be non encumbered or sold to anybody. The defendants are said to have never encroached that property. The property is said to have never existed in Sy.No.42/1. The plaintiff is said to be strangers to the defendants and therefore suit is said to be 9 O.S.No.6750/2002 bad for non joinder of parties. The suit of the plaintiff is said to be based on existing Gramatana site No.27/1A. There are said to be no previous records in respect of said sites except the created sale deed executed by the vendor towards non existing property. Therefore, suit is said to be not maintainable and the description and identity of the property has been very much disputed. Hence, sought for dismissal of the suit.
4. The defendants No.8 and 9 in the written statement have contended that the father of defendants No.1 and 2 to have passed away long back. The Gramatana site bearing 27/1A in khatha No.108, situated at Garvebhavipalya village was said to be never in existence. They are said to have never executed any General Power of Attorney in favour of anybody. There are said to be no documents either in their name or in the name of their father and the measurement of the property was said to be never in existence. There was said to be no execution of any sale deed in respect of the suit schedule property in favour of the plaintiff and also not executed General Power of Attorney to anybody and further the suit schedule property to be not in their name and not to have received any consideration. The brother late Krishnappa is said to have 10 O.S.No.6750/2002 not owned the suit schedule property and thereby not executed any General Power of Attorney. The plaintiff is said to be unknown to the defendants and was said to be not enjoying suit schedule 'A' and 'B' properties. The power of attorney was said to be never executed including the father of defendants No.1 and 2 and the defendants No.6 and 7.
Sy.No.42/1 of Garvebhavipalya village measuring 2 acre is said to be agricultural land and the same was partitioned among the brothers including defendants No.6 and 7, the father of defendants No.1 and 2 G.C.Krishnappa. It was said to be effected on 06-12-1976 by registered partition cum will. Each of them are said to have been allotted 16 guntas. Except the father of defendants No.1 and 2, these defendants are said to have sold their share to the third party and further defendants No.1 to 4 are said to have cultivated their share of 16 guntas. All the revenue documents are said to have stood in the name of 4th defendant i.e., widow of late Krishnappa.
The defendants No.1 to 4 are said to be in peaceful possession and enjoyment of their shares 16 guntas in Sy.No.42/1 till today. Late Krishnappa is said to have 11 O.S.No.6750/2002 constructed farm house nearly 6 to 8 squares in his life time and has taken electricity and water connection from the concerned authorities. It is said to be not converted from non agricultural land and thereby there is said to be no formation of any layout or sold to any third parties. The defendants No.1 to 4 are said to have paid upto date tax to the concerned authorities and the revenue are said to stand in the name of the 4th defendant. Sy.No.42/1 is said to be situated nearly one kilometer from the village and the defendants No.1 to 4 are said to have constructed compound and residing in the farm house of their late father Krishnappa without any interruption of anybody. Therefore, they are said to be absolute owners and in peaceful enjoyment of the property. The plaintiff is said to be a stranger and to have never enjoyed any inch of the land in Sy.No.42/1 measuring 16 guntas which is said to belong to defendants No.1 to 4.
The other defendants are said to have sold their share to one developer in Sy.No.42/1 and they are said to have constructed apartments and villas in their share and further to have sold their share in Sy.No.42/1 individually to the third parties because the partition was said to be effected among them in the year 1976 itself. The plaintiff is said to 12 O.S.No.6750/2002 have made these defendants as unnecessary parties to the above suit. The schedule property is said to be never in existence and only on the basis of false gramatana number as well as khatha number with false boundaries. The suit property is said to have been shown in the plaint. There is said to have been shown in the plaint. There is said to be no identity of the property. Denying all the other averments of the plaint and therefore sought for the dismissal of the suit.
5. The defendant No.5 has been placed exparte vide order dated 05-03-2007. The suit against defendants No.6 and 7 has been abated vide order dated 28-10-2011.
6. My predecessor-in-office had framed the following issues :
1. Whether the plaintiff proves that he is the owner of the plaint 'B' schedule property?
2. Whether the suit for declaration is maintainable in the present form?
3. Whether the plaintiff proves that defendants have put up un-authorised construction in plaint 'B' schedule property and liable to demolish the same?13 O.S.No.6750/2002
4. Whether the plaintiff is entitled for relief of injunction as prayed?
5. Whether the plaintiff is entitled for possession of plaint 'B' schedule property?
6. Whether the plaintiff proves that Court fee paid is sufficient?
7. Whether the defendant proves that suit is bad for non-joinder of necessary parties?
8. What order or decree?
7. In order to prove the case, the plaintiff has got himself examined as P.W.1, one witness as P.W.2 and got marked Ex.P-1 to Ex.P-17. The defendants to prove the case have got examined 2nd defendant as D.W.1 and one witness as D.W.2 and got marked Ex.D-1 to Ex.D-34.
8. The findings on the above issues are as follows :
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Affirmative
Issue No.7 : In the Negative
14 O.S.No.6750/2002
Issue No.8 : As per final order
REASONS
9. ISSUE Nos.1 TO 5 : The plaintiff has claimed to be the owner of the 'B' schedule property and sought for Declaration to that effect as well as Injunction. The defendants are said to put up unauthorized construction in the plaint 'B' schedule property and it is said to be liable to be demolished and the plaintiff to be entitled for its Possession. These issues being interlinked therefore are discussed and answered together in order to avoid repetition.
As per the plaint description of the suit schedule property has been as follows :
SCHEDULE 'A' PROPERTY "All that piece and parcel of the composite Gramatana property bearing house list No.27/1A, khatha No.108, situated at Garuvebhavipalya village, Hongasandra Dhakle, Begur Hobli, Bangalore South Taluk, Bangalore measuring east to west 60 feet and north to south 25 feet along with schedule 'B' property and bounded on East by Property No.2 15 O.S.No.6750/2002 West by Road North by Portion of same property South by Private property SCHEDULE 'B' PROPERTY "All that piece and parcel of the unauthorisedly constructed premises measuring east to west 25 feet, north to south 15 feet in schedule 'A' property and bounded on East by Remaining portion of 'A' schedule property West by Remaining portion of 'A' schedule property North by Remaining portion of 'A' schedule property South by Private property"
Therefore, this suit schedule 'A' property is said to be basically gramatana property. The plaintiff has claimed to be the owner of the gramatana property on account of the sale deed dated 02-03-1995 said to have been executed in his favour from the vendors. In order to show this aspect the plaintiff has produced that sale deed marked as Ex.P-9 which is executed in favour of the plaintiff by the General Power of Attorney holder of the vendor Yashodamma, 16 O.S.No.6750/2002 Venkataswamappa, Narayanappa, Krishnappa, Ramappa. The property described in this sale deed has been as follows:
SCHEDULE
"All that piece and parcel of the
Gramatana Property bearing House List
No.27/1A, khatha No.108, situated at
Garuvebhavipalya village, Hongasandra
Dhakle, Begur Hobli, Bangalore South Taluk, Bangalore measuring East to west 60 feet, North to South 25 feet and bounded as follows :
East by Property No.2
West by Road
North by Portion of same property
South by Private property
Along with one square Mangalore tile
roofed house built in thereon, constructed with Mud and bricks, the Doors and Windows are made out with Jungle wood and there is no civic amenities in the schedule property and the present Market Value of the Schedule property is Rs.85,000/- only."17 O.S.No.6750/2002
10. This is suit schedule 'A' property. The perusal of the written statement filed by the defendants goes to show that there has been denial of the existence of the suit schedule property only. No doubt, this Ex.P-9 has been executed by the General Power of Attorney. In this sale deed, it is mentioned that the property sold to be ancestral property of the vendors. The revenue records are said to stand in the name of the vendors. The plaintiff has also produced encumbrance certificate for the period 01-04-1994 to 13- 08-2002 which has reference of Ex.P-9. General Power of Attorney executed by the vendors has been marked as Ex.P-12. But the property described in this General Power of Attorney which is dated 25-02-1995 has been as follows:
SCHEDULE "Site bearing site No.1 and 5, formed in Sy.No.42, of Garvebhavipalya village, Hongasandra Dhakle, Begur Hobli, Bangalore South Taluk, bounded on :
for site No.5 for site No.1
East by Private property Site No.2
West by Owner's Road
property
North by Road Road
South by Private property Private property
And East to West 50 60 feet
18 O.S.No.6750/2002
measuring feet
North to South 50 feet
52 feet
It is significant to note the suit property is house list No.27/1A whereas in this General Power of Attorney it is shown as site No.1 and 5 formed in Sy.No.42. In the entire plaint, there is no reference of any survey number with respect to the schedule 'A' property. Ofcourse, the schedule 'B' property is said to be part of schedule 'A' property which is said to be trespassed by the defendants.
11. The photographs, Ex.P-13 to Ex.P-17 are said to be pertaining to the suit schedule property and the negatives are marked as Ex.P-13(a) to Ex.P-17(a). There appears to be also criminal case to have arose between the parties for which the complaint has been filed before the Madivala Police Station and the endorsement has been Ex.P-11 dated 23-11-2001. It states the matter to be civil in nature.
12. It is only in the oral evidence, the plaintiff has stated about the earlier litigation of O.S.4639/2007, O.S.16587/2004 and O.S.17627/2005. Infact, the documents pertaining to those cases have been marked as Ex.P-1 to Ex.P-8. Ex.P-4 is the certified copy of the plaint 19 O.S.No.6750/2002 in O.S.16587/2004 filed by Seetha Mahendra, Rajendra against the present defendants No.1, 2 and one Ramappa, son of late Krishnappa. This suit was filed for Permanent Injunction and the property described in this suit as follows:
SCHEDULE "All that piece and parcel of A.C. Sheet house built on khatha No.104, Assessment No.8, House list No.61, situated at Hongasandra Gramatana, Begur Hobli, (Garvebhavi Palya), Bangalore South Taluk, and bounded on :
East by Vendor's Property
West by Vendor's Property
North by Road
South by Munireddy and Ramareddy's property
And measuring East to West 53 feet and
North to South 50 feet."
Therefore, in Ex.P-4 the property is house list No.61 with khatha No.104 whereas in the present case it is house list No.27/1A with khatha No.108. Ex.P-5 is the certified copy of the I.A. filed under Order 39 Rule 1 and 2 of C.P.C. seeking for an ad-interim order of Temporary Injunction. The defendants have produced the certified copy of the 20 O.S.No.6750/2002 Judgment of this suit marked as Ex.D-5. The suit has been dismissed on 27-01-2010. The certified copy of the decree of this suit is marked as Ex.D-6.
The certified copy of the plaint in O.S.No.17267/2005 filed by one Padma against the same defendants of Ex.P-4 has been marked as Ex.P-7. This suit was filed for bare Injunction and the description of the property has been as follows :
SCHEDULE "All that piece and parcel of land together with construction standing thereon of A.C. Sheet House built on site No.4, kahtha No.104, Assessment No.8, House List No.61, situated at Hongasandra Gramatana (Garvebhavi Palya), Begur Hobli, Bangalore South Taluk, Bangalore, measuring East to West 53 feet and North to South 50 feet bounded on :
East by Owner's Property
West by Subramani and other Property
North by Road
South by Munireddy and Ramareddy's property
21 O.S.No.6750/2002
The certified copy of I.A. has filed under Order 39 Rule 1 and 2 of C.P.C. in that suit has been marked as Ex.P-8.
The certified copy of the order sheet of that suit is Ex.P-6 which shows that the ad-interim injunction was granted on 19-11-2005. The defendants have produced certified copy of the Judgment in that suit which are marked as Ex.D-31 which shows that the suit was decreed. Ex.D-32 is the certified copy of the decree in that suit. Therefore, this Ex.P-7 pertains to the house list No.61, khatha No.104 which is the same property in Ex.D-5 except western boundary.
Ex.P-1 is the certified copy of the order sheet in O.S.4639/2007 that has been filed by one Nanjappa against defendant No.1, 2, 4 and one Kumar for Permanent Injunction. That order sheet is till the date 16-08-2007. The certified copy of the plaint is Ex.P-2 and the description of the property has been as follows :
SCHEDULE "All that piece and parcel of the property bearing House list No.27/1, khatha No.108, formed out of Sy.No.42, situated at Garvebhovipalya village, Hongasandra- Dakala, Begur Hobli, Bangalore South Taluk, 22 O.S.No.6750/2002 Bangalore measuring East to West 60 feet and North to South 25 feet and bounded as follows :
East by Property No.2
West by Road
North by Road
South by Portion of the same property
Along with ½ square Mangalore tile roofed house built in thereon."
Ex.P-3 is the certified copy of the I.A. under Order 39 Rule 1 and 2 of C.P.C. seeking for Temporary Injunction in that suit. Again the defendants have produced order sheet pertaining to this suit marked as Ex.D-7 and it shows that on 03-03-2011 was dismissed as not pressed. The description of the property shows that suit is pertaining to the house list No.27/1, khatha No.108. The present suit property house list No.27/1A measurement and the boundaries are different from the present suit schedule property.
13. The defendants have produced Ex.D-1 which is the RTC for the year 2005-2006 of the Sy.No.42/1 Block and the basis for the entry is said to be order No.42/1/56-57 of 23 O.S.No.6750/2002 the D.C. Ex.D-2 is the M.R. No.46/2005-2006 in regard to the same Sy.No.42/1 Block that his name of Krishnappa, son of Chikkabiddappa to the extent of 16 guntas to have been given to Kamalamma, wife of late Krishnappa. Ex.D-3 is the RTC of Sy.No.121 for 2013-2014 when it is in the entry of the order No.42/1/56-57 of the D.C. Ex.D-1 and Ex.D-3 contains the entry of Kamalamma also to the extent of 16 guntas vide mutation entry as per Ex.D-2. This Kamalamma is the 4th defendant in the present suit. Ex.D- 4 is the M.R.No.63/2004-2005 pertaining to again Sy.No.42/1 Block and on account of the decree in the court, there is entry in the name of Krishnappa to the extent of 16 guntas.
At this juncture, it is necessary to note that name of the 4th defendant to appear in the revenue documents has been in fact admitted by P.W.1 and therefore these documents Ex.D-1 to Ex.D-4 have been marked through P.W.1 only. Ex.D-12 is the certified copy of the M.R.46/2005-2006 that has been marked as Ex.D-2. Ex.D- 8 is the certified copy of the memo filed in O.S.4639/2007 that the plaintiff to have withdrawn the suit has not pressed for which the concerned order sheet already noted above is Ex.D-7. Ex.D-9 is the tax paid receipt that contains the 24 O.S.No.6750/2002 name of Kamalamma for the year 2012-2013 in reference to the khatha No.121. Ex.D-10 is the certified copy of the RTC of Sy.No.121 for the year 2008-2009. Ex.D-11 is the certified copy of the Sy.No.42/1 Block for the year 2005- 2006 that has the name of the entry of 4th defendant vide Ex.D-2. Of course, defendant No.10 pertains to Sy.No.121. Ex.D-13 and Ex.D-14 are the copies of the voters I.D. card of defendants No.2 and 4. The receipt Ex.D-15 issued by Sriraksha Gas Agency has been in the name of defendant No.2 and the electricity bill Ex.D-16 to Ex.D-20 in the name of Manjunath defendant No.2.
14. The encumbrance certificate as per Ex.D-21 is from 01-04-1995 to 16-11-2000 in respect of Sy.No.42/1 measuring 16 guntas that his name of Krishnappa i.e., the husband of 4th defendant to the extent of 16 guntas bounded on East by private property, West by Road, North by Narayanappa's land and South by Ramappa's land. Ex.D-22 is the RTC for the year 2001 of Sy.No.42/1 that as the name of Krishnappa to the extent of 16 guntas on account of the Order No.42/1/56-57 by the D.C. Ex.D-23 is the RTC of Sy.No.42/1 for the year 1999-2000 to the extent of 2 acre that has the name of Krishnappa and Munivenkatappa. The concerned M.R. No.43/1998-99 25 O.S.No.6750/2002 referred to Ex.D-23 has been marked as Ex.D-24 that pertains to the entry of the name to the extent of 16 guntas of Krishnapa. The death certificate of this Krishnappa Ex.D- 25 shows that he has passed away on 14-03-2002 the relationship is not disputed. Therefore, genealogical tree as per Ex.D-26 issued by the Village Accountant is a formal document. The tax paid receipt in the name of Krishnappa Ex.D-27 and Ex.D-28 and the photograph is Ex.D-29 with the negative Ex.D-30. The certified copy of the rough sketch of Sy.No.42/1 and new No.121 has been Ex.D-32. The inspection notice issued by Spl. D.D. dated 26-10-1991 is Ex.D-33 and Ex.D-34 is the certified copy of the lease deed dated 01-07-2006 executed by defendant No.4 and her son defendant No.2. The property described in this document has been as follows :
"µÉqÀÆå¯ï «ªÀgÀ ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, ¨ÉÃUÀÆgÀÄ ºÉÆç½, ºÉÆAUÀ¸ÀAzÀæ zÁR¯É, §AqÉÃ¥Á¼Àå UÁæªÀÄPÉÌ ¸ÉÃjzÀ ¸ÀªÉð £ÀA.42B1 gÀ°è EgÀĪÀ SÁ°Ã eÁUÀ CAzÀgÉ ¥ÀǪÀð ¥À²ÑªÀÄ B 30-0 CrUÀ¼ÀÄ, GvÀÛgÀ zÀQët 40-0 CrUÀ¼ÀÄ ªÀżÀî C¼ÀvÉAiÀÄ SÁ°Ã eÁUÀzÀ°è F PÀgÁgÀÄ ¥ÀvÀæPÉÌ M¼À¥ÀnlgÀÄvÀÛzÉ. CzÀPÉÌ ZÀPÀÄ̧A¢ B ¥ÀǪÀðPÉÌ §AqÉ ¥À²ª Ñ ÀÄPÉÌ PÀªÀÄ®ªÀÄä£ÀªÀgÀ ¸ÀévÀÄÛ 26 O.S.No.6750/2002 GvÀÛgÀPÉÌ ¥Áå¸ÉÃeï ªÀÄvÀÄÛ ªÀįÉèñÀgÉrØ ¸ÀévÀÄÛ zÀQëtPÉÌ gÁªÀÄ¥Àà ¸ÀévÀÄÛ"
15. It is only in the oral evidence that P.W.1 has stated that the legal heirs of defendant No.6 to 8 to have not brought on record in the present suit. He has admitted clearly the nature of the suit property as gramatana site property. He has admitted not to have obtained any original documents to show that his vendors to have clear title in regard to that property. He has also not obtained any revenue documents appearing in the name of sons of Giddappa. The suit property is said to be situated at Garvebhavipalya. In order to show about the gramatana property he is said to have not produced any documents. He has stated as follows :
"£Á£ÀÄ FUÀ ºÁdgÀÄ ¥Àr¹gÀĪÀ zÁR¯ÉUÀ¼À£ÀÄß ©lÄÖ ¥ÀAZÁ¬ÄÛ¬ÄAzÀ ¥ÀqÉzÀÄ ¨ÉÃgÉ zÁR¯ÉUÀ¼À£ÀÄß ºÁdgÀÄ ¥Àr¹®è."
Apart from the encumbrance certificate and the sale deed, he is said to have no documents about the suit schedule property.
16. P.W.1 has admitted that Garvebhavipalya village to be in the limits of Hongasandra Gramapanchayath limits. But, 27 O.S.No.6750/2002 he has not filed the application for the change of the khatha to the Hongasandra Grama Panchayath. The admitted suggestion to this witness has been as follows :
"UÁæªÀÄoÁuÁ ¤ªÉñÀ£À JAzÀgÉ CzÀÄ UÁæªÀÄ £ÀPÉëAiÀÄ°è £ÀªÀÄÆzÁVgÀÄvÀÛzÉ JAzÀgÉ ¸Àj."
The defendants have vehemently disputed the source of the title of the vendor and to substantiate title of the vendor and this witness has unfortunately sated not to have any documents in that regard by stating as follows :
"£Á£ÀÄ Rjâ¹zÀÝ ¤ªÉñÀ£ÀzÀ ªÀÄÆ® zÁR¯É ¥ÀvÀæUÀ¼À£ÀÄß £À£Àß ªÀÄÆ® ªÀiÁ°ÃPÀgÀÄ £À£ÀUÉ ºÀ¸ÁÛAvÀj¹gÀ°®è. £À£Àß ªÀÄÆ® ªÀiÁ°ÃPÀgÀ ºÉ¸Àj£À°è ªÀiÁ°ÃPÀvÀé CxÀªÁ PÀAzÁAiÀÄzÀ zÁR¯ÉUÀ¼ÀÄ EgÀĪÀ §UÉÎ £Á£ÀÄ AiÀiÁªÀÅzÉà zÁR¯ÉUÀ¼À£ÀÄß ¥ÀqÉzÀÄPÉÆAr®è."
He has also stated not to have the documents about obtaining the water and electricity connection to his property by stating as follows :
"zÁªÁ µÉqÀÆå¯ï J ¸ÀéwÛ£À°è ªÀÄ£É CxÀªÁ PÉÆÃuÉ EzÀÄÝzgÀ À ¨UÉÎ ºÁUÀÆ CzÀPÉÌ «zÀÄåvï ¸ÀA¥ÀPÀð CxÀªÁ ¤Ãj£À ¸ÀA¥ÀPÀð ¥ÀqÉzÀÄPÉÆAqÀ §UÉÎ £Á£ÀÄ AiÀiÁªÀÅzÉà zÁR¯ÉUÀ¼À£Àß £ÁåAiÀiÁ®AiÀÄPÉÌ ¸À°è¹®è."
He has admitted that the defendants to be in possession by stating as follows :
28 O.S.No.6750/2002"¥ÀæwªÁ¢UÀ¼É®ègÀÆ ¸ÀzÀj 16 UÀÄAmÉ «¹ÛÃtðzÀ ¸Áé¢üãÀzÀ°èzÁÝgÉ JAzÀgÉ ¸ÁQëAiÀÄÄ zÁªÁ ¸ÀévÀÛ£ÀÄß £Á£ÀÄ Rjâ¹zÁUÀ CªÀgÀÄ ¸Áé¢üãÀzÀ°ègÀ°®è DzÀgÉ FUÀ ¸Áé¢üãÀzÀ°èzÁÝgÉ JAzÀÄ GvÀÛj¸ÀÄvÁÛgÉ. ¸ÀzÀj 16 UÀÄAmÉ d«ÄãÀÄ PÀȶ ¨ÀsÆ«Ä DVvÀÄÛ JAzÀgÉ ¸Àj. £À£Àß ªÀÄÆ® PÀæAiÀÄ¥ÀvÀæzÀ°è UÁæªÀÄoÁuÁ ¸ÀévÀÄÛ JAzÀÄ £ÀªÀÄÆ¢¸À¯ÁVgÀÄvÀÛzÉ DzÀgÉ UÁgÉèsÁ«¥Á¼ÀåzÀ ¸À.£ÀA.42-1 JAzÀÄ £ÀªÀÄÆ¢¹®è JAzÀgÉ ¸Àj."
He has admitted that the defendant to be in possession of 16 guntas by constructing compound to that property. He is said to have not obtained khatha documents of his vendor. Though the suit property has been described as the house list No.27/1, khatha No.108, but he himself has stated not to have produced any documents, but it is situated within Sy.No.42/1 by stating as follows :
"£Á£ÀÄ Rjâ¹gÀĪÀ ¸ÀévÀÄÛ UÁgÉèsÁ« ¥Á¼ÀåzÀ ¸À.£ÀA.42-1 gÀ°è §gÀÄvÀÛzÉ JAzÀgÉ vÉÆÃj¸À®Ä £ÁªÀÅ AiÀiÁªÀÅzÉà zÁR¯ÉUÀ¼À£ÀÄß ¸À°è¹®è JAzÀgÉ ¸Àj."
Therefore, from his evidence it is admitted fact that the suit property is a gramatana property. The nature of the suggestion putforth to this witness as follows :
"¥ÀæwªÁ¢AiÀÄgÀÄ ¸Áé¢üãÀzÀ°ègÄÀ ªÀ ¸À.£ÀA.42-1 gÀ 16 UÀÄAmÉ «¹ÛÃtð ¥ÀæwªÁ¢¬ÄAzÀ ªÀiÁ°ÃPÀvÀé ªÀÄvÀÄÛ ¸Áé¢üãÀzÀ°èzÀÄÝ ¸ÀzÀj ¸ÀévÀ£Û ÀÄß PÀ§½¸À®Ä 29 O.S.No.6750/2002 ¥ÀæwªÁ¢AiÀÄgÀ ¸ÀévÉÛà £À£Àß PÀæAiÀÄ¥ÀvÀæzÀ°ègÀĪÀ ¸ÀévÀÄÛ JAzÀÄ ¸ÀļÀÄî zÁ¨É ¸À°è¹ ¸ÀļÀÄî ¸ÁQët ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è."
He is said to have no other document apart from the sale deed in regard to his name appearing to the suit property. He has admitted that the site no.1 and 5 to have been formed in Sy.No.42 of Garvebhavipalya village and to be revenue sites and not to have been converted for non agricultural purpose. He has stated Nanjappa not to have executed General Power of Attorney in his name. He himself has admitted not to have produced the document to show that the property in Sy.No.42 has belonged to Yashodamma, Venkatswamappa, Narayanappa, Krishnappa and Ramappa. Layout plan pertaining to Sy.No.42 has not produced. Ex.-9 which is the sale deed does not contain that P.W.1 to have purchased half portion of the site No.1 which is admitted by this P.W.1 by stating as follows :
"It is true that in Ex.P-9 it is not mentioned that I have purchased the half portion of the site No.1."
It is interesting to note that this witness has admitted about the earlier litigation, but the same has not been offered in the plaint. He has admitted as follows :
30 O.S.No.6750/2002"It is true that the sites were not in accordance with the layout plan. It is true that we cannot identify he sites and their exact location." He has also admitted that without license he is said to have constructed the house in the suit schedule property and also not to have obtained khatha in his name in regard to the suit property. He has stated not to have obtained any documents from Neelakantappa at the time of execution of the sale deed i.e., Ex.P-9. The witness P.W.2 has stated that there is no reference number of the notary register in the General Power of Attorney Ex.P-12 which is in consonance with the evidence of P.W.1. He has stated to be in possession of the original documents of Sy.No.42 which is said to be in his possession.
17. The 2nd defendant examined as D.W.1 in the oral evidence has stated that he, defendants No.1, 3 to be children of Krishnappa whose name appears in the revenue documents noted above. The 4th defendant is stated to be their mother. D.W.2 has admitted that defendant No.4 to have let out the suit schedule property in favour of the tenant one Khan.
31 O.S.No.6750/2002During the course of the arguments of the learned counsel for the defendant has referred to the citation in 2004 (1) KCCR page 662 (K.Gopala Reddy (deceased) by LRs - Vs - Suryanarayana and others) "B. PLEADINGS AND PROOF -
Whenever a party approaches the Court for a relief, based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party who approaches the Court. Weakness of the defendant cannot be considered as a trump card for the plaintiff.
D. EVIDENCE ACT, 1872 - Section 114 - Presumption as to Entries in Revenue Records - Mere entries in the Revenue Records cannot be a basis to declare title of a person in respect of any immovable property."
ILR 2005 Karnataka page 884 (T.L.Nagendra babu - Vs
- Manohar Rao Pawar) "SUIT FOR DECLARATION AND INJUNCTION - REQUIREMENT OF EVIDENCE
- DUTY OF THE COURT - HELD - Unless the 32 O.S.No.6750/2002 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."
18. In the facts and circumstances of the case, the plaintiff has claimed about the ownership of 'B' schedule property which is said to have been encroached by the defendants that has been described as 'B' schedule property. The nature of the documents produced by the plaintiff in the present case and read along with the admitted facts goes to show that the plaintiff himself does not have any documents about the source of documents of the vendors. Basically, the suit property is admittedly gramatana property. Such being the case, there has to be allotment of that property. The situation of the suit property as stated in the plaint when compared with the oral evidence goes to show that there is variance between the description as per the plaint and in the oral evidence that emphasis to Sy.No.42/1 Block. To show that the suit property to be in Sy.No.42/1 and further that is only the property claimed by the plaintiff, there is no evidence produced before the court. In view of the discussed citation 33 O.S.No.6750/2002 it means that there is no clarity in regard to the identity of the suit property. Invariably the plaintiff has failed to prove his case and not entitled for the relief as sought for. The nature of the declaration sought for by the plaintiff is not supported by any documents of title. Hence, issue Nos.1 to 5 are answered in the NEGATIVE.
19. ISSUE No.6 : The plaintiff in the present case has sought for the relief of Declaration of ownership of 'B' schedule property, vacant possession and Permanent Injunction. As per the order sheet, there is no objection about the payment of the Court Fee. It is only in the written statement, the defendants have raised this contention. As per the Valuation Slip, Court Fee has been paid under section 24(a) and 26(c). The payment of the Court Fee is towards unauthorized construction i.e., 'B' schedule property. By virtue of the 2015 (4) KCCR page 3327 (Allabaksh - Vs - Imam Hussain) "KARNATAKA COURT-FEES AND SUITS VALUATION ACT, 1958 - Section 24(a) -
Suit for declaration and possession - Order of Court considering nature of property attaining finality - Valuation made in terms 34 O.S.No.6750/2002 of clause(a) - Is in terms of law - No interference warranted."
Hence, issue No.6 is answered in the AFFIRMATIVE.
20. ISSUE No.7 : It is the contention of the defendants that the plaintiff to be stranger to the defendants and therefore suit to be bad for non-joinder of necessary parties. The plaintiff has filed the suit before the Court and it incumbent upon the plaintiff to prove the case. How this suit is bad for non-joinder of necessary parties is not explained by the defendant and therefore this issue is answered in the NEGATIVE.
21. ISSUE No.8 : Due to forgoing reasons the following:
ORDER The suit of the plaintiff is hereby dismissed.
Parties to bear their own costs.
Draw decree accordingly.
[Dictated to the Judgment Writer, the transcript thereof is corrected and then pronounced by me in Open Court, this the 26th day of November 2015) (Ms. VELA.D.K.) XIV Addl. City Civil Judge Bangalore.35 O.S.No.6750/2002
ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W.1 Sri.A.Venkatalingaiah P.W.2 Sri.T.Neelakantappa
List of documents exhibited on behalf of plaintiff :
Ex.P.1 Certified copy of the order sheet in O.S.4639/2007 Ex.P.2 Certified copy of the plaint in O.S.4639/2007 Ex.P.3 Certified copy of I.A.-I in O.S.4639/2007 Ex.P.4 Certified copy of plaint in O.S.16587/2004 Ex.P.5 Certified copy of I.A.-I in O.S.16587/2004 Ex.P.6 Certified copy of order sheet in O.S.17627/2005 Ex.P.7 Certified copy of plaint in O.S.17627/2005 Ex.P.8 Certified copy of I.A.-I in O.S.17627/2005 Ex.P.9 Sale deed dated 02-03-1995 Ex.P.10 Encumbrance certificate Ex.P.11 Endorsement Ex.P.12 General Power of Attorney dated 25-02-1995 Ex.P.13 to Ex.P.17 Photographs Ex.P.13(a) to Ex.P.17(a) Negatives 36 O.S.No.6750/2002 List of witnesses examined on behalf of defendant :
D.W.1 Sri.G.K.Manjunath D.W.2 Sri.G.R.Govinda
List of documents exhibited on behalf of defendant :
Ex.D.1 Record of rights
Ex.D.2 Mutation register extract
Ex.D.3 Record of rights
Ex.D.4 Mutation register extract
Ex.D.5 Certified copy of the judgment in
O.S.16587/2004
Ex.D.6 Certified copy of the decree in O.S.16587/2004
Ex.D.7 Certified copy of the order sheet in
O.S.4639/2007
Ex.D.8 Certified copy of memo in O.S.4639/2007
Ex.D.9 Tax paid receipt
Ex.D.10 &
Ex.D.11 Certified copy of the RTC extracts
Ex.D.12 Certified copy of the mutation register extract
Ex.D.13 &
Ex.D.14 Voter's I.D. card
Ex.D.15 Bill issued by Shreeraksha Gas Agency
Ex.D.16 to
Ex.D.20 Electricity bills
Ex.D.21 Encumbrance certificate
37 O.S.No.6750/2002
Ex.D.22 &
Ex.D.23 RTC extracts
Ex.D.24 Mutation Register extract
Ex.D.25 Death certificate
Ex.D.26 Genealogical tree
Ex.D.27 &
Ex.D.28 Tax paid receipts
Ex.D.29 Photograph
Ex.D.30 Negative
Ex.D.31 Certified copy of the Judgment and Decree
in O.S.17627/2005
Ex.D.32 Rough sketch
Ex.D.33 Certified copy of the notice issued by Spl. D.C.
Ex.D.34 Certified copy of the rent agreement
[Ex.D-32 was given two documents viz., Decree of O.S.17627/2005 and the rough sketch. Hence, number given to the decree is cancelled] XIV ADDL.CITY CIVIL JUDGE BANGALORE