Bangalore District Court
Smt. K. Lakshmikanthamma vs Sri. Rmachandra on 27 June, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 27th day of June 2015.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.6905/2001
Plaintiff: 1. Smt. K. Lakshmikanthamma
W/o Dr. Kuchela Reddy, Major,
R/a 8651, NOrthsore Drive,
Jonesboro, Ga-30236, USA
Rptdk. By G.P.A Holder,
Sri K.S.Jaiprakash Reddy,
S/o Late A. Krishna Reddy,
R/a No.32, 10th cross,
2nd Block, Jayanagar,
Bangalore 560 011.
2. M/s North-East Infrastructures,
A Partnership firm, having its
registered office at No.483, 6th
cross, HMT Layout, R.T.Nagar,
Bangalore 560 032.
Rptd by its partners
Mr. R. Sridhar,
Mr. N.Nagaraju.
(By Sri B.P, Advocate for P.1 and
Sri.A.R. advocate for Plaintiff-2 )
: Vs :
Defendant/s: 1. Sri. Rmachandra,
s/o late Sri. D.H.Krishna Reddy,
aged about 55 years,
R/o Gupta Layout,
Ulsoor, Bangalore
D.1dead represented by D.4
2 O.S No.6905/2001
2. Sri. R.Vinodh,
S/o Sri. Ramachandra,
aged about 28 years,
Residing at No.7,
Gurumurthy street,
Ulsoor, Bangalore.
3. Sri. R.Naveen Chandra,
S/o Sri. K.Ramachandra,
aged about 55 years,
Residing at Gupta Layout,
Ulsoor, Bangalore.
4. Sri. Satish Chandra,
S/o Sri. Ramachandra,
aged about 28 years,
Residing at Gupta Layout,
Ulsoor, Bangalore.
5. Sri. B.Praveen Kumar,
s/o Sri. K.Balakrishna,
aged about 55 years,
Residing at No.24,
R.K.Mutt Road,
Bangalore
(D.1-dead
D.2-G.P, advocate,
D.3,D.4-HVN, advocate,
D.5- Exparte)
Date of the institution of suit: 4.9.2001
Nature of the suit : Permanent injunction
Date of the commencement of 14.11.2005
recording of the evidence :
3 O.S No.6905/2001
Date on which the judgment 27.06.2015
Was pronounced :
Total duration Year/s Month/s Days
13 09 23
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
This is the suit filed by the plaintiffs against defendant No.1 to 5 seeking the relief of permanent injunction in respect of suit schedule property as described in the plaint schedule and also plaintiff prayed for restraining the defendants from interfering with plaintiffs' peaceful possession and enjoyment of the schedule property except to have access all along the western side of the plaintiffs property and restraining the defendants from putting up any construction on the schedule property and for such other relief in the interest of justice and equity.
2. The brief facts of the plaintiffs case are as under:-
Initially, 1st plaintiff Smt. K.Lakshmikanthamma, wife of Dr.Kuchela Reddy had filed this suit against defendants through her GPA holder namely one Sri. K.S.Jaiprakash Reddy , son of Late A.Krishana Reddy for the relief of permanent injunction alleging that the 1st 4 O.S No.6905/2001 plaintiff is the absolute owner of the property bearing Old No.1-C, present No.20 situated at Pottery Road, Cooke Town, Corporation division, New No.86, Bangalore Civil Station measuring East by 108 ft., West by 76 ft.,, North by 77 ft., and South by 105-6 ft., bounded on the east by property bearing No.1/1 belonging to Sri. Fatechand, West by corporation drain, North by Property bearing No.18 and south by Pottery Road and this property described in the plaint schedule is herein after referred to as schedule property for the sake of brevity. It is the case of the 1st plaintiff that he has purchased the schedule property under registered sale deed executed by Smt. V.Kalyani dated23.1.1992 registered s document No.3744 of 91-92 at page No.39 to 47, volume No.323 in Book No.1 before the Shivaji Nagar Sub Registrar, Bangalore and katha of the schedule property stands in the name of 1st plaintiff and plaintiff has paid up to date tax in respect of schedule property. 2nd plaintiff, who claims to be the purchaser of the schedule property from 1st plaintiff during pendency of the suit, wherein 2nd plaintiff filed interim application in I.A.No.4 filed under Order 1 Rule 10 of CPC on 18.3.2006 and got impleaded as plaintiff No.2 in the above suit. When plaintiff No.2 after impleading itself in the suit alleged that plaintiff No.2 is registered partnership firm registered under the Partnership Act 1932 having its registered office situated at No.483, 6th cross, HMT Layout, R.T.Nagar,Bangalore -3. It is the case of the plaintiff No.2 that 1st plaintiff being the absolute owner of the suit 5 O.S No.6905/2001 property executed absolute sale deed dated 17.11.2005 in respect of suit schedule property in favour of plaintiff No.2 under an Indenture of absolute sale deed, which is also duly registered before the Sub Registrar, Shivajinagar, Bangalore as document No.SHV-1-03736- 2005-2006 stored in C.D.No.SHVD 52 before the Sub Registrar , Shivajinagar, Bangalore and plaintiff No.2 has paid the entire sale consideration amount to the 1st plaintiff. 1st plaintiff has delivered the possession of the schedule property in favour of 2nd plaintiff on 17.11.2005 i.e., on the date of execution of sale deed and ever since the date of sale deed, 2nd plaintiff is in possession and enjoyment of the schedule property and in pursuance of the registered sale deed daed17.11.2005, 2nd plaintiff made an application to the BBMP to transfer the records by change of the katha in the name of partnership firm in respect of schedule property. Accordingly, BBMP by its endorsement No.DA 86/KTR-351/2005-2006 dated 21.11.2005 after verifying the records has mutated/transferred the katha of the schedule property in the name of plaintiff No.2. The BBMP has issued katha certificate and katha extract in respect of schedule property in the name of plaintiff No.2 and on perusal of katha extract and katha certificate, it makes very clear that schedule property now stands in the name of plaintiff No.2. Thus plaintiff No.2 is the attesting witness in lawful possession and enjoyment of the schedule property and 2nd plaintiff has been regularly paying the tax to the concerned 6 O.S No.6905/2001 authorities . Plaintiff No.2 further alleged that from the above stated facts and circumstances, it is evident that plaintiff No.2 is bonafide purchaser, pendente lite transferee under registered sale deed and as such, plaintiff No.2 is the absolute owner in possession and enjoyment of the schedule property and thus, 2nd plaintiff acquired right, title and interest derived from 1st plaintiff over the schedule property and as such, plaintiff No.2 stands into the shoes of plaintiff No.2 and therefore, the interest of the plaintiff No.2 in the schedule property is to be protected and it is the case of the plaintiff that the vendor of 1st plaintiff Smt. V.Kalyani had succeeded to the said property on the death of Sri. D.H.Narayana Reddy @ D.H.Sathyanarayana got title to the said property under a registered partnership deed dated 11.07.1949 registered as document No.92/49-50 in Book No.1 Volume NO.713, page No.48 to 55 registered before the Sub Registrar, Bangalore Civil Station, and plaintiffs have produced the copy of the registered partnership deed dated 11.7.1949 and according to the said registered partnership deed, there was partition between Sri. D.H.Krishna Reddy , the brother of Sathyanarayana, Sri. Sathyanarayana and Smt. Papamma @ Bormma. The property described in Schedule-D to the said partnership deed was allotted to the share of D.H.Krishna Reddy and item No.1 of schedule-D situated at Pottery Road, Cooke Town, Civil Sttion, Bangalore. The property described in schedule-C of the registered partnership deed was allotted to Sri. 7 O.S No.6905/2001 D.H.Sathyanarayana and item No.2 thereof was the property No.1-C at Pottery Road, Cooke Town, Civil Station, Bangalore. The plaintiff No.2 further alleged that in the partition deed dated 11.09.1949 it was stated as follows-
"The above said property situated at Pottery Road, namely 1-C and 1-D consisting of two bungalows are situated in a single plot covered by a single compound and through the property allotted to minor Satyanarayana namely the bungalow at 1-C has to be used by Sri D.H.Krishnareddy to reach his bungalow at 1-D and hence the way leading to schedule D property and the use of water in the well shall be jointly enjoyed by both"
Hence, from the above recitals in the registered partnership deed dated 11.07.1949 it is clear that the property of D.H.Satyanarayana and D.H.Krishnareddy presently bearing No.19 and 20 respectively was situated in the same compound and D.H.Krishnareddy had right to pass through in the property of D.H.Sathyanarayana to reach his property. The defendants of the persons are claiming rights with then schedule D property of the partnership deed dated 11.07.1949 and presently bearing No. 19 who have right of approach through the schedule property of the plaintiffs. The property of defendants is situated on the northern side of plaintiffs' property. The approach has been given all along from the western side of the property and plaintiffs have relied upon rough sketch 8 O.S No.6905/2001 of the properties which is enclosed as annexure to the plaint and description of the properties as shown in the rough sketch is to be treated as part and parcel of the plaint. The hatched portion in the annexed sketch is the approach to reach property No.1-D present No.19. It is further alleged that by the plaintiff No.2 that the defendants who are claiming rights under Sri D.H.Krishnareddy with respect to property bearing No. 19 all of a sudden on 31.08.2001 tried to rise the height of the wall on the western side of the plaintiffs' property and they also made attempts to put up temporary structure towards the south-west corner of the plaintiffs' property and plaintiff No.2 submits that the forced illegal attempts made by the defendants in putting up construction on the wall of the western side of the plaintiffs' property and also attempting to construct a temporary structure towards the south-western corner of the schedule property, which affects the right, title and interest of plaintiff No.2. The invasion rights of the plaintiffs' is persistent and continuous. Hence the aforesaid acts and misdeeds on the part of the defendants in interfering with peaceful possession and enjoyment of the schedule property is without right, title and interest and without any manner of right on the part of defendants in respect of schedule property. The plaintiff has given police complaint aginst defendants and plaintiffs have lodged a complaint before the Corporation authority of city of Bangalore. Hence, defendants have no manner right, title and interest with 9 O.S No.6905/2001 respect to property bearing No.20 except right to pass through the property on the western edge to which their property, but defendants are forcibly trying to put up construction on the portion of plaintiffs property present No.20 and alter the compound on the west and north and defendants are trying to close the well which is meant for joint use of both parties and defendants also trying to raise the wall separating the property of the plaintiffs and defendants situated on the northern side of plaintiffs' property. Hence, these acts of defendants is amounting to interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule property. The defendants who are moneyed people from substantial influence and inspite of complaint lodged before the concerned Police Station and also before the corporation authority, the said authority did not come to the rescue of the plaintiffs and there is no help from both the authorities and plaintiff is not able to protect their possession and illegal activities of defendants and as such plaintiffs alleging cause of action constrained to file the suit for the relief of permanent injunction against defendants and accordingly, plaintiffs have filed this suit and 2nd plaintiff got impleaded during the pendency of the suit as plaintiff No.2 had purchased the suit schedule property from 1st plaintiff under sale deed dated 17.11.2005.
3. The 2nd defendant appeared and filed written statement and defendant No.1, 3 and 4 have adopted the 10 O.S No.6905/2001 written statement filed by defendant No.2 by filing memo dated 19.12.2001 and whereas defendant No.5 placed exparte and defendant No.2 only contested the suit. Defendant No.1 died during pendency of the suit on 17.1.2001 vide memo filed by the 2nd defendant in the above suit dated 24.1.2011 and counsel for 2nd plaintiff filed memo stating that the L.Rs of 1st defendant are already on record i.e., defendant No.2 to 4 are the only Lrs of deceased 1st defendant and this memo is file don 23.2.2011.
Defendant No.2 in his written statement contended that suit filed by the plaintiffs is not maintainable either in law or on facts and the same is liable to be dismissed in limine. Defendant No.2 has no comments for the averments made in para No.1 and 2of the plaint. Defendant No.2 denied the averments made in para No.3 of the plaint and defendant No.2 contended that the real fact is that the 2nd defendant filed partition suit against the plaintiff and others in O.S. No.10858/1993 and the said suit was posted on 12.06.2001 for plaintiffs' evidence (2nd defendant evidence in that suit). On that day defendant No.2 was suffering from viral fever he was under medical treatment and due to that reason 2nd defendant could not able to attend the court and 2nd defendant's counsel was not represented when the case was called and since no one represented in the suit before the Court, wherein the said case was called out pending before CCH29 and 11 O.S No.6905/2001 accordingly, suit came to be dismissed for default of the plaintiffs (defendant No.2 herein). Immediately after recovering from the illness 2nd defendant contacted his counsel and learnt that his suit filed for partition came to be dismissed for default and accordingly, 2nd defendant filed C.M.P.No.15139/2001 for restoration original suit and to dispose of the suit on merits. 2nd defendant stated that he has produced xerox copy of the plaint in O.S. No.10858/1993 and xerox copies of C.M.P.No.15139/2001, which is pending before CCH 21, Mayohall Court, Bangalore. Under the above circumstances the claiming of ownership by the plaintiff over the schedule property does not arises. The litigation is pending before the competent civil court. Hence, defendant No.2 denied the alleged title and possession claimed by plaintiff No.2. Regarding para 4 of the plaint defendant No.2 contended that he is not within the knowledge of these averments and he further contended that when the matter is pending before the court, the transaction pertaining to the subject matter of the disputed suit property is not valid and binding on the parties and as such the alleged sale transaction 17.11.2005 is void transaction and 1st plaintiff without disclosing the court matters sold property in favour of plaintiff No.2 and plaintiff No.2 obtained khata from BBMP which is not an authenticated document. Defendant No.2 denied the averments made in para No.5 of the plaint and called upon the plaintiff to prove these averments by strict proof and defendant No.2 in respect to para No.6 of 12 O.S No.6905/2001 pleadings stated that the subject matter of the suit is pending in miscellaneous petition filed before CCH 21 Mayo Hall court, Bangalore and 2nd defendant filed the suit against plaintiff and others for partition in O.S. No.10858/1993 which came to be dismissed for default on 12.06.2001 and against the said order Civil miscellaneous petition is filed and the same is pending. The defendant No.2 denied the averments made in para No.7 of the plaint and he further contended that the schedule property (disputed) was allotted to 2nd defendant's grand father as per oral partition dated 08.04.1949 and also the other supporting documents dated 20.04.1952 and 02.10.1980 and copies of the same are herewith produced as document No.3 to 5 for kind perusal of the court and 2nd defendant contended that the vendor of the 1st plaintiff namely V.Kalyani does not have any right, title and interest over the disputed suit schedule property and as such the property purchased by the 1st plaintiff through her vendor V. Kalyani under sale deed dated 23.01.1992 is null and void transaction and 1st plaintiff cannot seek any relief under void sale transaction. Regarding para No.8 of the plant 2nd defendant admits that the properties are situated at Pottery Road, namely 1-C (new No.20) and 1-D (new No.19) consisting of two bungalows, but situated in different plots with separate entrance from the Pottery Road. Hence, defendant No.2 denied the other allegations made para No.8 of the plaint and defendant No.2 further denied the averments made in para No.9 and 10 and he 13 O.S No.6905/2001 contended that the real facts in respect of that property 1- D (old) new No.19 with an independent separate approach main entrance with the existing compound wall that is passage area 30 ft. Width 200 ft. Running in length of existing compound wall from the Pottery Road, ever since 1949 absolutely belongs to the defendant No.1 to 4 with peaceful enjoyment and possession and to prove the same, 2nd defendant producing the sanctioned plan bearing LP No.1822 issued by the Bangalore City Corporation, Bangalore. The defendant No.2 contended that the averments made in para 11 of the plaint are baseless wherein defendant No.2 contended that himself along with defendant No.1, 3 and 4 are absolute owners in possession and having peaceful enjoyment of property old No.1-D corresponding to new No.19 with an independent approach i.e separate passage from the main Pottery Road, and further 2nd defendant contended that they have intended/tried to increase the height of the existing compound wall covering barbed fencing of their own property i.e. new No.19 Pottery Road, to avoid the burglaries, dacoits etc., and also to install the main gate at the entrance of the Pottery Road. The plaintiff has nothing to do with disputed property which is exclusively belongs to defendant and also the space open to sky all around the bungalow with in the compound walls of the property No.19, Pottery Road, Cooke Town, Bangalore and defendant No.2 has produced copy of the plan along with written statement. Defendant No.2 admits that plaintiff 14 O.S No.6905/2001 have given complaint before the jurisdictional Police Station and also before the Corporation authority wherein the said authorities have visited the spot and advised the plaintiffs' not to interfere with the peaceful possession and enjoyment of the suit schedule property by the defendants after verifying the documents. Defendant no.2 denied the averments made in para No.13 of the plaint contending that the facts stated in para No.13 are concocted and created one wherein defendant No.1 to 4 are absolute owners in actual possession and enjoyment of the property bearing old No.1-D, New No.19 Pottery Road, Bangalore with passage and also open space within the compound wall as mentioned in the aforesaid paragraphs. Hence, defendant No.2 denied rest other allegations of the pleadings and defendant No.2 also denied cause of action as relied by the plaintiff in para 15 of the plaint and further contended that suit is liable to be dismissed with exemplary costs.
4. defendant No.2 filed additional statement on 23.02.2011 after plaintiff No.2 got impleaded it in the suit and defendant No.2 in his additional written statement contended that the suit filed by the alleged GPA holder of plaintiff namely Sri Jayaprakash Reddy is not maintainable either in law or on facts and the alleged GPA holder has no authority to file the suit on behalf of 1st plaintiff and the GPA produced in this case is not pertaining to the schedule property and the alleged sale transaction exists between 1st 15 O.S No.6905/2001 plaintiff and 2nd plaintiff and the alleged GPA holder of 1st plaintiff is null and void. The GPA holder of 1st plaintiff without any valid authority sold the property and he has filed the suit against defendants. Defendant No.2 denied the averments made in para No.4 of the plaint stating that he has no knowledge about these facts. He denied the averments made in para No.4-B of the pleadings and Ex.P.1 produced by the alleged GPA of 1st plaintiff is very clear that authorization given by the 1st plaintiff is only to deal with the property belongs to her. The suit schedule property does not belongs to 1st plaintiffs father i.e., late A.Krishana Reddy . Hence, the question of seeking of any relief against defendants does not arise. The alleged GPA holder has filed this false suit and also sale transaction between GPA holder and 2nd plaintiff is illegal and the same is not binding on the defendants. Defendant No.2 denied the averments made in para No.4-c and para No.4-D and he further contended that 2nd plaintiff is not bonafide purchaser and on the contrary, 2nd plaintiff is aware of various suits and before different courts pertaining to suit schedule property. Hence, the alleged GPA holder of 1st plaintiff has no legal right or title to execute sale deed in favour of 2nd plaintiff. The documents produced by the 2nd plaintiff pertaining to the schedule property are all bogus documents created for the purpose of the suit and plaintiff No.1 and 2 have not approached this court with clean hands and defendant No.2 denied the averments made in para No.11-A of the plaint and defendant No.2 also denied 16 O.S No.6905/2001 the cause of action continuous for 2nd plaintiff and 2nd plaintiff has no right to seek any relief in the suit. Hence, defendant No.2 on this defence filed additional written statement on 23.2.2011 and resisted the suit filed by the plaintiff No.2.
5. Based upon these pleadings, the following issues are framed for trial of the suit on 8.1.2003 :-
1. Whether the plaintiff proves that she is in lawful possession of suit schedule property on the date of suit?
2. Whether she further proves that the defendants are interfering with her possession of the suit schedule property?
3. Whether she is entitled to the injunction prayed for?
4. What Order or Decree ?
6. In order to prove the above issues, the parties to the suit have adduced their effective oral and documentary evidence, wherein originally GPA holder of 1st plaintiff is examined as PW.1 and got marked Ex.p.1 to P.10 and after impleading of 2nd plaintiff, one of the partner of the 2nd plaintiff is examined as P.W.2 and got marked Ex.P.1 to P.10 and with this evidence, plaintiff side evidence is closed. Defendants have not adduced any rebuttal evidence in this suit and thereafter after taken as defendants evidence not adduced, the matter is posted for arguments.
17 O.S No.6905/20016. Heard the arguments of counsel for plaintiff and defendants side arguments taken as heard. Hence, the suit is posted for judgment.
7. On appreciation of the pleadings filed in the above suit and on appreciation of oral and documentary evidence placed on record and considering the arguments contentions, I answer the above issues are as follows:-
Issue No.1 and 2: In affirmative;
Issue No.3: Plaintiff No.2 is entitled for the
relief of permanent injunction;
Issue No.4: The suit filed by the plaintiff
No.2 deserves to be decreed
with costs against defendants
for the following reasons:-
REASONS
8. Issue No.1 and 2: Initially, the suit filed by the 1st plaintiff through her brother as GPA holder against defendant No1. to 5, wherein defendant No.1 to 4 appeared in the suit and contested the suit filed by the 1st plaintiff , wherein 2nd defendant filed written statement and defendant No.1, 3 and 4 have adopted the written statement filed by defendant No.2 and on the basis of the pleadings, this court has framed Issue No.1 and 2, wherein 1st plaintiff had filed a suit for permanent injunction in 18 O.S No.6905/2001 respect of suit schedule property as described in the plaint schedule i.e., property bearing Old No.1-C, present No.20 situated at Pottery Road, Cooke Town, Corporation Division, New No.86, Bangalore Civil Station, measuring East- 108 ft., West -70 ft., North 77 ft., and South -105 .6 inches within the boundaries as shown in the plaint schedule and it is the case of the 2nd plaintiff that 2nd plaintiff had purchased the property from 1st plaintiff under registered sale deed dated 17.11.2005 and 2nd plaintiff got impeladed in this suit by filing I.A.No.4 during pendency of the suit on 18.3.2006 stating that 1st plaintiff has sold the schedule property in favour of 2nd plaintiff partnership firm and 2nd plaintiff came on record as I.A.No.4 filed by the 2nd plaintiff came to be allowed and 2nd plaintiff continued this suit originally 1st plaintiff's GPA holder namely Sri. K.S.Jyaprakash Reddy has given evidence in the suit as he written statement examined s P.W.1 and through P.W.1 Ex.P.1 to P.10 are came to be marked and cross-examination of P.W.1 was deferred at the request of counsel for defendant No.1 to 4. Subsequently during pendency of the suit, 1st plaintiff sold the schedule property in favour of 2nd plaintiff under sale deed dated 17.11.2005 and plaintiff No.2 got impleaded in the above suit as co-plaintiff No.2 and continued the suit against defendants and this court on 18.3.2006 discarded the evidence of P.W.1 and this court has taken that evidence of P.W.1 closed and counsel for plaintiff No.1 filed memo of retirement and after hearing the counsel for 19 O.S No.6905/2001 plaintiff, this court permitted the counsel for plaintiff No.1 to retire by accepting the memo file don 18.3.2006 and I.A.No.4 was filed for 2nd plaintiff and accordingly, it was ordered to issue show cause notice of interim application to the proposed plaintiff No.2 and I.A.No.4 filed by the plaintiff No.2 came to be allowed on 22.7.2006 and accordingly, 2nd plaintiff was ordered to be impeladed in the above suit and accordingly, plaint was amended and plaintiff No.2 continued this suit against defendants and thereafter, one of the partners of the 2nd plaintiff namely Sri. Sreedhar, son of Sri.Ramraj has been examined as P.W.2, who has filed affidavit evidence on behalf of Plaintiff No.2 filed under Order 18 Rule 4 of CPC, wherein on perusal of the evidence of P.W.2, wherein 2nd plaintiff claims that it has purchased the schedule property from 1st plaintiff's GPA holder under registered sale deed dated 17.11.2005 and on the basis of this registered sale deed, registered before the Sub Registrar , Shivajinagar, Bangalore. The 2nd plaintiff partnership firm had acquired right, title and interest by virtue of the sale deed dated 17.11.2005 and accordingly, on the basis of sale deed, katha has been transferred in respect of suit schedule property in the name of partnership of 2nd plaintiff and 2nd plaintiff is paying tax to the property and hence, P.W. 2 claims that 2nd plaintiff being the partnership firm was bonafide purchaser of the schedule property of 1st defendant and 2nd plaintiff came in lawful possession of the schedule property, wherein 1st plaintiff had derived title 20 O.S No.6905/2001 originally from her vendor Smt. V.Kalyani as 1st plaintiff had purchased the schedule property under sale deeds dated 23.1.1992 and 30.1.1992 and P.W.2 also stated that Smt. V.Kalyani the vendor of 1st plaintiff succeeded to the schedule property on the death of Sri. D.H.Narayana Reddy @ D.H.Sathyanarayana and P.W.2 also deposed that Sri. D.H.Narayana Reddy @ D.H.Sathyanarayana in trust got title to the said property under registered partnership deed dtred11.7.1949 registered before the Sub Registrar , Bangalore Civil Station and the said partition was between D.H.Krishna Reddy , brother of the Sathyanarayana and Smt. Papamma @ Boramma and property described in Schedule-D in the said partition deed was allotted to one D.H.Krishna Reddy and item No.1 of schedule -D at Pottery Road, Cooke Town, Civil Station, Bangalore and P.W.2 also stated that property of Sathyanarayana and Sri. S.H.Krishna Reddy presently bearing No.19 and 20 respectively were situated in the same compound and D.H.Krishna Reddy had right to pass through the property of Sathyanarayana to reach his property and defendants are the persons claiming rights with then schedule-D property of the partition deed dated 11.7.1949, presently property bearing No.19 and they have right of approach through the schedule property of plaintiff No.1, wherein the property of the defendants is situated on the northern side of plaintiff's property. The approach has been given all along the western side of the property and P.W.2 also stated that defendants, who are 21 O.S No.6905/2001 claiming rights under D.H.Krishan Reddy with respect to property bearing No. 19 all of a sudden on 31.8.2001 tried to raise height of the wall of the western side of plaintiff's property and also made attempt to put up temporary structure towards south-west corner of plaintiff No.2 property and P.W.2 stated that if defendants raises the height of the wall on the western side, it causes hardship for the plaintiff and also it affects the right, title and interest of plaintiff No.2 and defendants are trying to interfere with the peaceful possession and enjoyment of the schedule property without any manner of right, title and interest and P.W. No.2 also deposed that plaintiff No.2 has given police complaint and also complaint before Municipal Corporation of Bangalore. Hence, P.W.2 being one of the partner of 2nd plaintiff partnership firm has deposed in his affidavit evidence by reiterating the facts as stated in the plaint pleadings and P.W.2 got marked documents through his evidence, they are Ex.P.2 is the certified copy of sale deed dated 23.1.1992 and Ex.P.3 is the certified copy of sale deed dated 30.1.1992 and katha certificate is at Ex.P.4, tax paid receipt is as per Ex.,P.5 and certified copy of judgment in O.S. No.269/1980 are marked t Ex.P.7 and order copy of SLP No.7117/1999 is marked at Ex.P.8 and certified copy of partition deed is dated 11.7.1949 is marked at Ex.P.9 and sketch map pertaining to the suit schedule property is marked at Ex.P.10. Hence, P.W.2 by his evidence deposed in the suit 22 O.S No.6905/2001 and coupled with these documents prays to grant a decree for permanent injunction against defendants.
9. The learned counsel appearing for defendant No.2 to 4 cross examined P.W.2, wherein P.W.2 admits that he has graduate in B.Sc., and he can read and write English language and he has verified GPA produced in the suit by the 1st plaintiff and P.W.2 denied that Original plaintiff had not given any authority in favour of GPA holder as per Ex.P.1 and P.W.2 admits that 1st plaintiff Smt. K.Lakshmikanthamma is now residing in USA and P.W.2 admits that 1st plaintiff's GPA holder had executed sale deed in favour of plaintiff No.2 on the strength of Ex.P.1 and P.W.2 denied that the said GPA holder of 1st plaintiff had no right to execute any sale deed on the basis of Ex.P.1 and as such sale deed relied by plaintiff No.2 is null and void and P.W.2 admits that the 2nd defendant had filed a suit in O.S.No.10858/1993 for partition and separate possession against plaintiff herein and others, in which plaintiff No.2 is also arrayed as party and P.W.2 denied that plaintiff No.2 had purchased the suit schedule property during pendency of suit filed by defendant No.2 for partition and P.W.2 admits that plaintiff No.2 subsequently came on record in the suit and P.W.2 admits that he has not transferred and verified the title deeds of the schedule property and on the contrary, P.W.2 voluntarily stated that his lawyer has verified the title deeds in respect of suit schedule property and P.W.2 do 23 O.S No.6905/2001 not know about the boundaries of suit schedule property as shown in suit filed by defendant No.2 in O.S.10858/1993 and the boundaries shown in the sale deed and he denied that the boundaries shown in the plaint in O.S. No.10858/1993 by defendant No.2 and boundaries in the sale deed of plaintiff No.2 are not tallying with each other and P.W.2 denied that 1st plaintiff has not given any authorization in favour of Sri.K.S.Jayaprakash Reddy and as such Ex.P.1 is not valid executed by 1st plaintiff and as such, K.S.Jayaprakash Reddy , the alleged GPA holder had no authority to execute sale deed and P.W.2 again cross examined by defendants counsel on 5.8.2014 , wherein P.W.2 denied his knowledge regarding the schedule annexed to the partition deed dated 11.7.1949 and there is no specific measurement of the property was shown in the schedule annexed to the partition deed. P.W.2 admits that in the single bungalow, there are properties bearing old No.1-C, present No.1-C, which is adjoining property bearing present property No.19 is in existence and P.W.2 admits that on the western side of property No.1-C and property No.19 there existed passage and P.W.2 denied that in order to reach the property of defendants, the way which is depicted in Ex.P.10 is the only way and P.W.2 denied the suggestion that the well is in existence in between plaintiff's property and that of property bearing new No. 19 and it is used in common and P.W.2 denied that plaintiff No.2 had purchased the schedule property 24 O.S No.6905/2001 during the pendency of the partition suit from GPA holder of plaintiff had no authority to sell the schedule property and P.W.2 also denied the suggestion that as per the partition deed dated 11-7-1949, the way on the western side and the compound of the property are to be owned by defendants and P.W.2 denied that defendants are using the passage as per the court order and P.W.2 denied that plaintiff No.2 has no right in the property and plaintiff No.2 got impleaded in the suit only with an intention to harass the defendants.
10. The defendant No.2 filed written statement, wherein defendant No.1 died during pendency of the suit and defendant No.2 to 4 are his L.Rs as per memo filed by counsel for plaintiff No.2, wherein defendant No.2 filed additional written statement after impleading of 2nd plaintiff, but defendant No.2 nor other defendants have given rebuttal evidence to that of the evidence led by P.W.2 i.e., the evidence of P.W.2 in this case. The Plaintiff No1., who had purchased the property originally from V.Kalyani under sale deeds dated 23.1.1992 and the sale deeds dated 30.1.1992 and thereafter, 1st plaintiff, who was residing in USA, she executed GPA as per Ex.P.1 in favour of her younger brother K.S Jayaprakash Reddy, son of A.Krishna Reddy and this Ex.P.1 is the GPA duly executed by 1st plaintiff in favour of her brother to deal with the schedule property, which was purchased by the 1st plaintiff and 1st plaintiff was the absolute owner of the 25 O.S No.6905/2001 schedule property purchased by her under two sale deeds dated 23.1.1992/30.1.1992 from its original owner Smt. V.Kalyani and subsequently 1st plaintiff sold the schedule property in favour of 2nd plaintiff under sale deed dated 17.11.2005. On perusal of Ex.P.6 the judgment copy in O.S. No.269/1980 (old No. O.S. No. 571/1971), wherein the suit was filed by K. Balakrishna son of late D.M.Krishna Reddy against H.Krishna Reddyt deceased by his L.Rs and others for partition, injunction and possession before 1st Additional City Civil and Sessions Judge, Mayo Hall Court, Bangalore and after contest, this suit came to be decreed partly by judgment dated 13.8.1993, wherein the suit filed for partition came to be decreed partly and in this judgment, Issue No.1 framed was in reference registered partition deed dated 11.7.1949, wherein the plaintiff K.Balakrishna had contended that the registered partition deed dated 11.7.1949 was a nominal deed and not acted upon, but after trial of suit, the Civil Court has given finding on Issue No.1 by recording negative findings giving reasons that the plaintiff of O.S. No.269/1980 failed to prove Issue No.1 and on the contrary, the findings arrived in this judgment, wherein defendant No.2 Smt. V.Kalyani , the vendor of 1st plaintiff, who had contested the suit O.S. No.269/1980 had appeared and filed her written statement relying upon registered partition deed dated 11.7.1949, wherein the Item No.1 and 2 were allotted to the share of Narayana Reddy and he also received Item No.4 of the property in 26 O.S No.6905/2001 that suit as a donee from his mother Papamma under registered gift deed dated 16.12.1956 and after demise of Narayana Reddy, Smt. V.Kalyani, who was the only daughter of late Narayana Reddy had become absolute owner of suit Item No.1, 2 and 4 in that suit. Hence by perusal of the findings in the judgment of O.S. No.269/1980, wherein the partition deed set up and marked as Ex.P.1, wherein the court has given findings in that suit holding that partition deed was proved and it was acted upon by the parties including Papamma and Krishna Reddy and Narayana Reddy , wherein Smt. V.Kalyani had become absolute owner of suit Item No.1, 2 and 4 and suit Item No.3 and 5 are available for partition in O.S. No.269/1980 and accordingly, suit O.S. No.269/1980 decreed partly by awarding share of partition in favour of K.Balakrishna only in suit Item No.3 and 5 and as such, the first appeal preferred against judgment and decree in O.S. No.269/1980 i.e., RFA No.457/1993 came to be dismissed before Hon'ble High Court on 26.5.1999 and SLP also came to be dismissed filed before Hon'ble Apex Court on 7.1.2000. Hence, the judgment and decree passed in O.S. No.269/1980 has attained finality and as such, it is proved on record by plaintiff No.1 that she was the absolute owner of suit schedule property under two sale deeds dated 23.1.1992/30.1.1992 purchased from V.Kalyani and subsequently 1st plaintiff through her GPA holder sold the schedule property in favour of 2nd plaintiff is sale deed dated 17.11.2005 . Hence, 2nd plaintiff had 27 O.S No.6905/2001 acquired right, title and interest derived from 1st plaintiff in respect of suit schedule property by virtue of registered sale deed and P.W.2 stated that on the basis of sale deed, katha has been changed in the name of 2nd plaintiff in respect of the property purchased under sale deed dated 17.11.2005 and as per Ex.P.10 , it depicts the suit of the property i.e., present property bearing No. 19 and 20 old No.1-D, 1-C, wherein there exists well in between property No.1-D(old) and 1-C (old) and there also exists passage on western side to reach the property 1-D and in view of evidence placed on record, wherein P.W.2 has proved this sketch map marked at Ex.P.10. The defendant No.2 to 4 have not led any rebuttal evidence and also not denied the alleged interference made by them to the plaintiff No.2 and hence, there is no rebuttal evidence on the part of defendants and on the contrary, 2nd plaintiff purchased the schedule property on 17.11.2005 from 1st plaintiff and 2nd plaintiff derived title and possession through a registered document i.e., sale deed dated 17.11.2005. Defendant No.2 contended that he has filed partition deed and the said suit was pending, but defendant No.2 has not produced any documentary evidence in this suit nor led any oral evidence by way of rebuttal evidence in denying the case of the plaintiff No.2 and hence, plaintiff No.2 has proved its possession in respect of schedule property by virtue of sale deed and also defendants are interfering in the possession of 2nd plaintiff and defendants are trying to raise the height of the wall, which definitely 28 O.S No.6905/2001 affects the rights of plaintiff No.2 and hence, plaintiff No.2 proved Issue No.1 and 2 and also on 5.6.2002 there is status-quo order passed in the above suit in view of the undertaking given by defendants and accordingly, this court has disposed of I.A.No.1 by recording the undertaking given by defendant No.1 to 4 on 5.6.2002 restraining the defendants not to put up any construction during pendency of the suit and there is prohibitory order of status-1uo passed against the defendants, which is subsisting during pendency of the suit vide order dated 5.6.2002. Hence, P.W.2 has proved that there is interference and obstruction by the defendants in their possession and enjoyment of the schedule property. Accordingly, I answer Issue no.1 and 2 in affirmative in favour of plaintiff No.2.
11. Issue No.3: Initially 1st plaintiff has filed this suit through her brother, who stated to be GPA holder of 1st plaintiff has filed the suit for permanent injunction against defendant No.1 to 5 and during pendency of ther suit, 1st plaintiff has sold the schedule premises in favour of 2nd plaintiff under sale deed dated 17.11.2005 and 2nd plaintiff got impleaded in this suit by filing I.A.No.4 filed on 18.3.20096 and 2nd plaintiff continued the suit and initially the GPA holder of 1st plaintiff has been examined as P.W.1 and got marked documents and thereafter, the partner of plaintiff No.2 got examined its witness as P.W.2 and Ex.P.1 to P.10 are came to be marked and P.W.2 is 29 O.S No.6905/2001 cross examined by counsel for defendant No.2, wherein on perusal of the cross-examination of P.W.1, nothing is elicited to disbelieve the testimony of P.W.2. The plaintiff No.2 claims title and possession in pursuance of registered sale deed dated 17.11.2005 executed by GPA holder of 1st plaintiff and 1st plaintiff has produced G.P.A executed by her in favour of her brother as per Ex.P.1 and though counsel for defendant No.2 cross examined to P.W.1 and 2 much in respect of the alleged G.P.A executed by 1st plaintiff dated 27.6.1991, but defendant No.2 failed to prove that 1st plaintiff was not the owner of the suit schedule property involved in this case. On the contrary, 1st plaintiff had purchased the schedule premises under sale deed dated 23.1.1992 and 30.1.1992 and she has already acquired title and possession in respect of suit schedule property as the vendor of 1st plaintiff had acquired clear title and possession in respect of suit schedule property fallen to her share in a partition dated 11.7.1949 and that partition has already been acted upon and as such, 1st plaintiff's vendor namely V.Kalyanee was the absolute owner and having title and possessary right over the schedule property conveyed the schedule property in favour of 1st plaintiff and thereafter 1st plaintiff transferred her right, title and interest in favour of 2nd plaintiff during pendency of the suit and already the validity of registered partition deed dated 11.7.1949 is decided by the competent Civil Court in O.S.No. 71/1971(old) and corresponding to New O.S.No.269/1980 30 O.S No.6905/2001 decided on the file of 1st Additional City Civil and Sessions Judge, Mayo Hall Unit. In that suit and RFA preferred against judgment and decree passed in O.S.No.269/1980 also dismissed before the Hon'ble High Court in RFA No.457/1993 dated 26.5.1999 and also SLP filed before the Hon'ble Apex Court against the order in RFA also came to be dismissed in SLP No.7117/1999 and thus the finding on Issue No.1 regarding partition deed dated 11.7.1949 has attained finality and accordingly, the sale deeds executed by 1st plaintiff in favour of 2nd plaintiff is valid and 2nd plaintiff has acquired right, title and possession under sale deed dated 17.11.2005 and defendant No.2 and other defendants have not challenged the sale deed dated 17.11.2005 and as such, P.W.2 has proved the title and possession of 2nd plaintiff since the date of sale deed and prior to that, 1st plaintiff was in lawful possession and enjoyment of the schedule property and as there is no rebuttal evidence adduced by the defendants and also not denied the cause of action as stated in the plaint and hence, the plaintiff is entitled for the relief of permanent injunction as prayed in the suit against defendants and as such, 2nd plaintiff is entitled for the suit relief of permanent injunction against defendants and there is apprehension of raising the wall height by the defendant on the western side of plaintiff's property and hence, the plaintiff is entitled for the relief of permanent injunction as prayed for in this suit against defendant No.1 to 5. Accordingly, Issue No.3 is answered in affirmative.
31 O.S No.6905/200112. Issue No.6: In view of my findings on Issue No.1 to 3, the suit filed by the plaintiffs deserves to be decreed with costs against defendants. Hence, I proceed to pass the following:-
OR D E R The suit filed by the plaintiffs is decreed with costs against defendants.
It is further decreed and ordered that the defendants are restrained by grant of permanent injunction restraining the defendants, their agents, servants or anybody acting under them from interfering with the 2nd plaintiff's peaceful possession and enjoyment of the suit schedule property except to have access all along western side of the plaintiff's property and defendants are restrained from putting up any construction on the schedule property belonging to the plaintiff.
Accordingly, it is ordered to issue permanent injunction as prayed in the suit against defendants in respect of suit schedule property.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 27th day of June , 2015.} (S.V.KULKARNI) XI ADDL.CITY CIVIL JUDGE BANGALORE CITY.32 O.S No.6905/2001
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.K.S. Jaiprakash Reddy P.W.2 Sri. Sridhar
List of documents exhibited for plaintiff:-
Ex.P.1 G.P.A. executed by plaintiff in favour P.W.1 Ex.P.2 & 3 Certified copies of sale deeds Ex.P.4 Khata certificate issued by BBMP dated 20.12.2003 in favour of 1st plaintiff Ex.P.5 Tax paid Receipt dated 19.5.2003 Ex.P.6 Certified copy of judgment passed in O.S.No.269/1980 Ex.P.7 Certified copy of judgment passed in RFA No.457/1993 Ex.P.8 Certified copy of order passed in SLP Ex.P.9 Certified copy partition deed dated 11.7.1949 Ex.P.10 Rough Sketch Map List of witnesses examined and documents marked for defendant :
...Nil..
XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 33 O.S No.6905/2001 34 O.S No.6905/2001 35 O.S No.6905/2001 36 O.S No.6905/2001 37 O.S No.6905/2001