Bangalore District Court
Smt.Rathnamma vs Sri.Nagaraj on 27 October, 2016
[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 27th day of October 2016
O.S.No.7768/2008
Plaintiff : Smt.Rathnamma,
w/o. Sri.Sanjeevappa,
Reptd. By her GPA Holder,
Sri.Lakshmikanth,
s/o. Sanjeevappa,
aged about 30 years,
r/at Agara village,
H.S.R. Layout,
Bangalore-560102.
(By Sri.S.I., Advocate)
- Vs -
Defendant : 1. Sri.Nagaraj,
s/o. Chikka Thimmarayappa,
aged about 45 years
2. Sri.Venkateshappa,
s/o. Chikka Thimmarayappa,
aged about 47 years
Both are r/at Agara village,
Begur Hobli,
Bangalore South Taluk,
Bangalore.
2 O.S.NO.7768/2008
(By Sri.S.G. Advocate)
Date of institution
of the suit : 20.10.2008
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Mandatory Injunction and
Permanent Injunction
Date of the commencement
of recording of the evidence: 12.01.2012
Date on which the
Judgment was pronounced : 27.10.2016
Year/s Month/s Day/s
Total Duration -08- -00- -07-
JUDGMENT
This is a suit for Mandatory Injunction and Permanent Injunction.
2. The case of the plaintiff is that the plaintiff is the absolute owner and in possession of the suit schedule property that was originally owned by Muthakka who executed Settlement Deed in favour of Munishamappa on 30.01.1927. Thereafter son of Muniswamappa's son Chikka Appanna sold the schedule property to one Chikka Govindappa on 22.05.1965. Again said Chikka Govindappa sold the schedule property to Chikka Muniyappa on 3 O.S.NO.7768/2008 05.04.1967. Subsequently on 24.04.1980 said Chikka Muniyappa sold the schedule property in favour of the plaintiff. There were said to be certain mistakes and inaccuracies crept in at the time of execution of the registration of the sale deed in favour of the plaintiff that was subsequently rectified by executing Rectification Deed dated 27.05.2003. Subsequent to the purchase to the schedule property, the plaintiff and his family are said to be in peaceful possession and enjoyment of the schedule property.
3. The City Municipal Council, Bommanahalli is said to have entered in the name of the plaintiff in the revenue records and issued the khatha extract after collecting the necessary tax payable in respect of the schedule property. The residential building is said to be constructed in an area of 9 squares on the Eastern side leaving 5 feet passage on the Northern side so as to gain access to the remaining portion of the schedule property i.e., vacant site situated on the Western side and from the date of the purchase, the plaintiff is said to be in its peaceful possession and enjoyment of the schedule property without any interference from any person. The defendants are said to be the neighbours of the portion of the Southern side of the 4 O.S.NO.7768/2008 schedule property. They are said to have encroached portion on the schedule property measuring East to West 18 feet and North to South 5 feet and the 3rd defendant is said to have encroached the portion of vacant site on the Northern side of the schedule property measuring East - West 21 feet and North - South 7 feet. The plaintiff is said to have an access to the vacant site on the Western side without any interference.
4. The 3rd defendant is said to be obstructing the plaintiff from gaining access to the vacant site from 5 feet passage situated on the Northern side of the schedule property by not allowing the plaintiff to enjoy the vacant site situated on the Western side peacefully. The act of the defendant is said to be high handed and illegal and several complaints are said to have been lodged before the jurisdictional police, but there has been no action taken by the police. The defendants are said to have illegally encroached upon the portion on the schedule properties and the defendants are to be dispossessed from their respective encroached portion since their encroachment is said to be illegal and without any right. The said illegal encroachment of the defendants cannot be set right by the plaintiff without the aid of the court.
5 O.S.NO.7768/2008The defendants are said to be powerful persons and in the year 2003, the 3rd defendant is said to have obstructed the plaintiff from entering vacant site situated on the Western side through the passage on the Northern side. To stop the said obstruction, the plaintiff is said to have filed a suit in O.S.No.5034/2003 for Permanent Injunction and that ultimately it was dismissed for default. The encroachment shown in the sketch in respect of the schedule property is said to have been made by the defendants No.1 and 2 in the year 2008 inspite of resistance by the plaintiff and her family members. The 3rd defendant during December 2007 is said to have encroached being powerful persons in the locality supported by local politicians. Hence, filed the suit.
5. The defendant No.1 has been placed exparte vide order dated 06.02.2010. The defendant No.3 has been deleted vide order dated 02.11.2009.
The 2nd defendant in the written statement has contended that as per the terms of the sale deeds of the year 1965 and 1967 the property bearing Kh. House list No.156 to measure East - West 24 feet and North - South 29 feet i.e., 24 X 29 = 696 sq. feet and vacant space attached to the same measuring East - West 15 feet and 6 O.S.NO.7768/2008 North - South on eastern side 29 feet, Western side 22 feet i.e., 15 X 25.5 = 383.5 sq. feet. This defendant and his brother 1st defendant are said to be in possession and enjoyment of Kh.No.122, New No.156/150 consisting of the house and vacant space that was purchased by Chikka Thimmarayappa, he is said to have executed Will dated 13.06.1988 bequeathing the aforesaid property and other self acquired properties in favour of the defendant and his brothers viz., 1st defendant Shankarappa and Panduranga. After Chikka Thimmarayappa had passed away, in terms of the Will, the 1st defendant is said to be in possession and enjoyment of Western side of the said property measuring East - West 15 feet and North - South 60 feet consisting of building and vacant space bounded on East by remaining portion of the same property bequeathed to Venkateshappa i.e., 2nd defendant, West by Chowdappa's property, North by Munishamappa's house and vacant space and South by Road. The 2nd defendant is said to be in possession and enjoyment of the aforesaid property measuring East - West 15 feet and North - South 60 feet along with the building and vacant space bounded on the East by House property bearing No.107, West by remaining portion of the same property bequeathed to Nagaraj i.e., the 1st defendant North by Munishamappa's house and vacant space and 7 O.S.NO.7768/2008 South by Road. The defendants are said to have further put up construction consisting of ground and first floor and to be residing in the portion of the same.
6. Chikka Thimmaryappa was said to be in possession and enjoyment of the said property from 1963 along with his family members and also enjoying the vacant space adjacent to the said building. After Chikka Thimmarayappa had passed away the defendants are said to be in possession and enjoyment of the same to the knowledge of the parties to the suit. The husband of the plaintiff had filed a suit in O.S.No.3651/2004 against the defendants and other brothers for Partition and Separate possession and that the suit was dismissed as withdrawn. There is said to no encroachment by the defendants in the property muchless the suit property. The defendants are said to be in possession of the property from the time of their predecessor-in-title. Two floors building was said to be constructed prior to all the old building and the defendants are said to be in possession and enjoyment of the vacant space. In O.S.5034/2003, the application filed by the plaintiff for Temporary injunction was said to be rejected on 22.09.2003 with a direction to the plaintiff to pay the compensation of Rs.8,000/- to the defendants for 8 O.S.NO.7768/2008 wrongfully obtaining the Injunction order by misleading the court. The defendants are said to be in possession of the building that was constructed about a decade ago and prior to the said property, there was said to be an old building and as such question of encroachment as alleged by the plaintiff in March 2008 is said to be highly imaginary.
7. Being in knowledge about the sale deeds in respect of the property in possession of the defendants, therefore the plaintiff is said to have deliberately filed the suit without seeking for declaration of her right in the suit property. From 1963 therefore, the defendants are said to be in possession and enjoyment of the property and exercising the acts of ownership over the same to the knowledge of the plaintiff. The plaintiff is said to be aware of the construction of the building in the aforesaid property and its enjoyment prior to the filing of the suit. The plaintiff had filed an application before the Commissioner for rectification of measurement of property bearing khatha No.506/156 and the 2nd defendant is said to have filed objections to the said application not to alter the measurements in the records. The suit of the plaintiff is said to be barred by limitation. Denying all the other averments of the plaint and therefore sought for the dismissal of the suit.
9 O.S.NO.7768/20088. My predecessor-in-office had framed the following issues :-
1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property as pleaded?
2. If so, whether the plaintiff proves the illegal encroachment by the defendants on the suit schedule property as alleged?
3. Whether the plaintiff is entitled for the possession of the suit schedule property as claimed?
4. Whether the plaintiff is entitled for the relief of Mandatory and Permanent injunction order as claimed?
5. Whether the plaintiff is entitled for the relief sought for?
6. Whether the defendants prove that the Court Feet paid by the plaintiff is insufficient?
7. Whether the defendants prove that the suit filed by the plaintiff is barred by limitation?
8. What order or decree?
9. In order to prove the case, power of attorney holder of the plaintiff has been examined as P.W.1 and one 10 O.S.NO.7768/2008 witness as P.W.2 and got marked Ex.P-1 to Ex.P-9. There is no oral evidence of the defendants, but during confrontation of the plaintiff evidence, Ex.D-1 to Ex.D-14 have been got marked.
10. The finding on the above issues are as follows :
Issue No.1 to 7 : In the Negative
Issue No.8 : As per final order
for the following:-
REASONS
11. ISSUE No.1 TO 4 : The plaintiff has claimed to be the absolute owner of the suit schedule property and that the defendants have illegally encroached the suit schedule property and therefore the plaintiff to be entitled for possession and Mandatory injunction as well as Permanent injunction. These issues being interlinked therefore are discussed and answered together in order to avoid repetition.
As per the plaint, the description of the suit schedule property has been as follows :
SCHEDULE All that piece and parcel of the property bearing Kh.No.74 and House list 11 O.S.NO.7768/2008 No.156, Municipal No.583, situated at Agara village, Raja Road, Bangalore Hobli Bangalore South Taluk, now within the limits of Bruhat Bangalore Mahanagara Palike, Bommanahalli Zone, measuring East
- West 51 feet and North - South 39 feet with a RCC residential building put up thereon measuring 9 ½ squares, bounded on the :
East by Road
West by Property belonging to Ramaiah
North by Dodda Govindappa's House and
South by Narayanaswamy's property."
On account of the various sale deeds taken place subsequently sale deed is said to have been executed in favour of the plaintiff by his vendor Chikka Muniyappa whereby the plaintiff has become the owner and to be in possession of the suit schedule property. In this regard, the General Power of Attorney executed by the original General Power of Attorney holder the plaintiff as P.W.1 has been marked as Ex.P-1. As per the plaint, originally the suit property is said to belong to one Muthakka who had executed the Settlement Deed in favour of Munishamappa 12 O.S.NO.7768/2008 dated 30.01.1927. It is marked as Ex.P-8. Subsequently, son of Muniswamappa viz., Chikka Appanna on 22.05.1965 is said to have sold the schedule property to one Chikka Govindappa. That sale deed has been marked as Ex.P-6. Again Chikka Govindappa is said to have sold the schedule property in favour of Chikka Muniyappa on 05.04.1967 which is marked as Ex.P-7. On 24.04.1980 Chikka Muniyappa is said to have sold the property in favour of the plaintiff which has been marked as Ex.P-9. There were said to be certain mistakes and inaccuracies in the sale deed executed in favour of the plaintiff. Therefore, Rectification Deed dated 27.05.2003 is said to have been executed and it has been marked as Ex.P-4. This document is certified copy and it shows that it has been executed by Chikka Muniyappa son of late Munishamappa in favour of the plaintiff which has the reference of Ex.P-9. By virtue of this Rectification Deed, the exact measurement of the property has been as follows :
"wzÀÄÝ¥Àr µÉqÆ À å¯ï «ªÀgÀ ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, ¨ÉÃUÀÆgÀÄ ºÉÆç½ CUÀgÀ UÁæªÀÄzÀ UÁæªÀÄoÁuÁ SÁ£ÉõÀĪÀiÁj J¸ï ©.74© FV£À ºË¸ï °¸ïÖ 156 (MAzÀÄ£ÀÆgÀ LªÀvÁÛgÀ) £Éà £ÀA§gÀÄ ¥ÀǪÀð - ¥À²ª Ñ ÀÄ 51-0 (LªÀvÉÆÛAzÀÄ) Cr CxÀªÁ 15.54 «ÄÃlgÀÄ ºÁUÀÆ GvÀÛgÀ - zÀQët 39-0 (ªÀÄƪÀvÉÆÛA§vÀÄÛ) Cr CxÀªÁ 11.89 «ÄÃlgÀÄ MlÄÖ 184.77 (MAzÀÄ 13 O.S.NO.7768/2008 £ÀÆgÀ JA¨ÀsvÁß®ÄÌ ¥Á¬ÄAmï K¼ÀÄ K¼ÀÄ ZÀzÀÄgÀ «ÄÃlgÀÄ C¼ÀvÉAiÀÄļÀî SÁ°Ã ¤ªÉñÀ£ÀPÉÌ ZÀPÀÄ̧A¢ B ¥ÀǪÀðPÉÌ UËgÀߪÉÄAmï gÉÆÃqÀÄ ¥À²ª Ñ ÀÄPÉÌ gÁªÀÄAiÀÄå£ÀªÀgÀ ªÀÄ£É GvÀÛgÀPÉÌ zÉÆqÀØUÆ É Ã«AzÀ¥Àà£ÀªÀgÀ ªÀÄ£É zÀQëtPÉÌ £ÁgÁAiÀÄt¸Áé«Ä ªÀÄ£É F ªÀÄzsÉå EgÀĪÀ SÁ° ¸ÉÊlÄ F wzÀÄÝ¥Àr ¥ÀvÀæPÉÆ̼À¥ÀnÖgÀÄvÀz Û É¤ "
Therefore, as per this Rectification Deed it is stated as vacant site whereas in the suit property it is described as consisting of RCC residential building put up in 9 ½ squares and in the Rectification Deed it is mentioned as 184.77 squares vacant site. The boundaries are the same as that of the suit schedule property. Ex.P-2 is the self declared tax for the year 2006-2007 by the plaintiff. This document describes the property as consisting of RCC building and this has been entry from the year 2002-2003 to 2006- 2007. Rough sketch pertaining to the suit property has been marked as Ex.P-3 which has been vehemently disputed by the defendants in the written statement. Ex.P- 5 is the sale deed dated 21.06.1962.
There is no dispute about the earlier litigation between the parties to have been taken place. Ex.D-1 is the certified copy of the plaint of O.S.3651/2004 that was filed 14 O.S.NO.7768/2008 by Sanjeevappa husband of the plaintiff against the present defendants No.1 and 2 along with Shankarappa and Panduranga. That suit was filed for Partition and Separate Possession in respect of various properties, it does not include the present suit schedule property.
12. The counsel has produced the typed copy of Ex.P-8 wherein it is mentioned that the property to be the ancestral property of the husband of the executant Mutthakka. The property is stated as East by Road, West by Goususab Vatara, North by Dodda Giriyappa's Vatara, South by Rangappa's Vatara and this is to consist of one floor house with vacant site. P.W.1 in the oral evidence has admitted the suggestion that :
"It is true that in the sale deeds executed in the years 1965 and 1967 the total measurement of house property bearing Kh.No.74 measuring East to West 24 feet and North to South 29 feet including the vacant space measuring East to West 15 feet and North to South towards North 29 feet and towards South 22 feet.
The defendants 1 and 2 are my junior paternal uncles. It is true that the 15 O.S.NO.7768/2008 defendants are in possession of property bearing Kh.No.122 of Agara Village. It is true that father of defendants 1 and 2 had purchased the property bearing Kh.no.122 of Agara village from one Sri.Dasappa under registered sale deed dated 21.06.1963. It is true that Sri.Chikkathimmarayappa the father of defendants 1 and 2 has executed an unregistered Will dated 13.06.1988 in respect of property bearing Kh.No.122 bequeathing it in favour of all his children."
Specifically he has stated that the measurement of the house in Kh.No.74 residing by them to be East-West 29 feet and North-South 30 feet. The vacant space is said to measure East-West 22 feet and North-South 39 feet. He has admitted that one Chikka Govindappa to have purchased the property bearing Kh.No.74 vide sale deed dated 22.05.1965 from Chikka Appanna and that sale deed has been marked as Ex.P-6. Chikka Govindappa according to him, had purchased Kh.No.74 to the extent of the house property East-West 24 feet and North-South 29 feet along with the vacant space East-West 15 feet and North-South 16 O.S.NO.7768/2008 29 feet on the Eastern side. That Chikka Govindappa has sold the property on 05.04.1967 in favour of Chikka Muniyappa. The measurement of the properties shown in the sale deeds dated 22.05.1965 and 05.04.1967 are admitted to be true and correct. His mother purchased the property from Chikka Muniyappa vide sale deed dated 24.04.1980. The measurement to be East-West 51 feet and North-South 31 feet. The vendor of his mother had purchased house property measuring East-West 24 feet and North-South 29 feet.
13. The defendants are related to P.W.1 as they are said to be his uncles. Their house is identified in the photograph marked as Ex.D-11. The house in Kh.No.122 was said to be constructed in the year 1996-97. His grand father Chikkathimmarayappa purchased the property in Kh.No.122 in 1963 from one Dasappa. His father is said to have been bequeathed some portion of the property by virtue of the Will dated 13.06.1988. He has admitted not to have produced any document to show that there is 5 feet passage towards East of the suit property. The BBMP is said to have measured the property for which the concerned document are not produced before the court.
17 O.S.NO.7768/2008One witness examined as P.W.2 has stated that the suit property to consists of vacant site as well as constructed building.
14. In the entire cross-examination, P.W.1 has admitted the suggestions put forth pertaining to the earlier litigation and thereby the documents on behalf of the defendants were marked from Ex.D-1 to Ex.D-14. Ex.D-1 is the certified copy of plaint filed in O.S.No.3651/2004 by Sanjeevappa i.e., his father against the children of Chikka Thimmarayappa which includes defendant No.1 and 2. The description of the property is as follows :
SCHEDULE
1. All the piece and parcel of the property No.120 measuring 32 X 29 along with two storied RCC roofed building thereon situated at Agara village, Begur Hobli, Bangalore South Taluk, Bangalore and bounded on East by Dasappa's House West by Road North by Narayanamma property South by Road.18 O.S.NO.7768/2008
2. All the piece and parcel of the property bearing khatha No.151 property No.149 and khatha No.152 and property No.150 measuring 29+20/2 X 44 along with two storied RCC Roofed building thereon situated at Agara village, Begur Hobli, Bangalore South Taluk and bounded on :
East by Rajanna's property
West by Kumbara Rajann's House
North by Ratnamma's property
South by Road
3. All the piece and parcel of the
property bearing Sy.No.24 of Agara village, Begur Hobli, Bangalore South Taluk measuring 7 guntas of Wet land."
This property according to P.W.1 is in regard to Kh.No.122 which is specifically not stated in the plaint. That suit was filed for Partition and the certified copy of the Written Statement is Ex.D-2. That suit was dismissed as withdrawn vide Memo dated 23.03.2007 as per Ex.D-3. His mother i.e., the present plaintiff had filed O.S.2392/2010 against one Gangamma who has been deleted as defendant 19 O.S.NO.7768/2008 No.3 in the present suit. The certified copy of the Plaint and Deposition are marked as Ex.D-4 and Ex.D-5. It was a suit for Mandatory Injunction and Permanent Injunction in respect of the present suit schedule property. The certified copy of the written statement filed in the suit and the certified copy of the issues framed in that suit are marked as Ex.D-13 and Ex.D-14. Therefore, these documents show that the present reliefs have been already sought for by the plaintiff in O.S.No.2392/2010.
His mother had filed O.S.No.5034/2003 in respect of the suit property against Smt.Gangamma. The certified copy of the plaint in that suit has been marked as Ex.D-6 and it is pertaining to the present suit property. The certified copy of written statement in that suit is Ex.D-7. I.A. under Order 39 Rule 1 and 2 seeking for ad-interim order of Temporary Injunction was sought for by his mother in this suit. The certified copy of the I.A. has been marked as Ex.D-8 and that application has been dismissed as per the order dated 22.09.2003. The certified copy of that order has been marked as Ex.D-9. That suit has been dismissed for default and the certified copy of the order sheet is Ex.D-10. In the oral evidence P.W.1 has further admitted that the measurements of the property in the sale 20 O.S.NO.7768/2008 deed dated 24.04.1980 pertaining to his mother has been measuring East - West 51 feet and North - South 39 feet. The vendor of his mother purchased the house property measuring East - West 24 feet and North - South 29 feet.
His grand father Chikka Thimmarayappa filed O.S.No.4517/1980 against Mooga Reddy and Seenappa for Permanent Injunction. His grand father had passed away and father and brothers were brought on record. The certified copy of that plaint has been marked as Ex.D-12. The property described in this suit has been as follows :
SCHEDULE All that piece and parcel of an house bearing House list and Kh.No.108 (old No.122) situated in Agara village, Begur Hobli, Bangalore South Taluk, the house measuring East - West 30 feet and North - South 35 feet and vacant land on the Northern side abutting to it measuring East
- West 30 feet and North - South 46 feet, in total measuring East - West 30 feet and North - South 81 feet, together bounded on the :
East by A.S.Muniyappa's property
21 O.S.NO.7768/2008
West by Chowdappa's property
North by Narayanaswamy's property
South by Road."
15. The learned counsel for the plaintiff has filed written arguments. The property of the defendants No.1 and 2 as per the plaint is on the Southern side of the suit property.
Specifically in the plaint, it has been averred that 5 feet passage was left on the Northern side for access to the remaining portion of the suit schedule property at the time of construction of the residential building. As above noted P.W.1, himself has stated not to have produced any documents about this 5 feet passage on the East of the suit schedule property.
In the plaint and in the affidavit for chief examination P.W.1, has specifically stated that there has been encroachment by the defendants measuring East - West 18 feet and North - South 5 feet and one Smt.Gangamma to have encroached the portion of the vacant site on the Northern side measuring East - West 21 feet and North - South 7 feet. In the oral evidence P.W.1 has stated not to have produced the documents about 5 feet passage to have been left towards the East of the suit property whereas in 22 O.S.NO.7768/2008 the averments and affidavit for chief examination, 5 feet passage has been encroached on the Northern side. P.W.1 is said to have got surveyed the portion measuring 21 X 7 feet alleged to have been encroached by the defendants No.1 and 2 in the year 2003 from one Mason. Further it is averred and stated in the affidavit that on account of this obstruction, the plaintiff has been prevented access to the vacant site from the 5 feet passage situated on the Northern side of the suit property. Litigation has taken place already in O.S.No.5034/2003 about encroachment against Gangamma the 3rd defendant, but the 3rd defendant has been deleted in the above case and that suit was dismissed as above noted as per Ex.D-10.
Basically the plaintiff has not produced any documents before about the 5 feet passage to have been left at the time of construction of the residential building. The encroachment has been alleged of this passage North - South 5 feet and East - West 18 feet against defendant No.1 and 2 and 21 X 7 feet on the Northern side by defendant No.3. Regarding this encroachment there are no documents placed before the court.
23 O.S.NO.7768/200816. The sale deed Ex.P-9 (certified copy) dated 24.04.1980 pertains to the suit schedule property. Interestingly the plaintiff has sought for Mandatory Injunction directing defendants No.1 and 2, to quit or vacate and delivery the vacant possession of the Southern portion of schedule property measuring East - West 18 feet and North - South 5 feet and for Permanent Injunction against the defendants in respect of the suit schedule property. Therefore, the extent of the property for Mandatory Injunction sought for by the plaintiff is confined only to East - West 18 feet and North - South 5 feet. This is according to the plaintiff Southern portion of the suit schedule property.
In respect of the documents produced before the Court, Settlement Deed marked as Ex.P-8 does not specify the details of the property and its measurement. It only states the boundaries as per the schedule to the plaint. Ex.P-5 is the sale deed dated 21.06.1962 and this deed states the details of the property as site property "SÁ.£ÀA.71£Éà £ÀA§gÀÄ ¥ÀǪÀðPÉÌ ºÀ£ÀĪÀÄ¥Àà£À ªÀÄ£É, ¥À²ÑªÀÄPÉÌ aPÀÌUÉÆëAzÀ¥Àà£À ªÀÄ£É, GvÀgÛ ÀPÉÌ ªÀÄĤAiÀÄ¥Àà£À ªÀÄ£É ªÀÄvÀÄÛ zÀQëtPÉÌ ªÀÄĤ±ÁªÀi¥Àà£À SÁ° d«ÄãÀÄ. F ªÀÄzÀsåzÀ°è EgÀĪÀ ¥ÀǪÀð - ¥À²ÑªÀÄ 42 Cr GvÀÛgÀ - zÀQët 25 Cr."
24 O.S.NO.7768/2008In Ex.P-6 sale deed dated 21.05.1965 property sold has been stated as bounded by East by Government Road, West by House property, North by vacant site and house of Doddagiriyappa, South by House of Rangappa.
The description is mentioned as Kh.No.74, measuring East-West 24 feet and North - South 29 feet consisting of house built and vacant space measuring East - West 14 feet and North - South 21 feet. Thereby this document states the measurement of both the house and the space. In the sale deed Ex.P-7, the property is shown bounded by East by Government Road, West by House of one Ramaiah, North by house and vacant property of Doddagiriyanna and South by house of Rangappa and this is to be situated in Kh.No.74 measuring East - West 24 feet, North - South 29 feet consisting of the building and the vacant space measuring East - West 15 feet, North - South 21 feet. Basis for the measurement in each of the deeds is not substantiated by any other document. The original settlement deed undoubtedly does not have any measurment. Then on what basis has been specific measurement in the particular deed is not forthcoming in the evidence placed by the plaintiff. Moreover, the very same property has been under litigation for which there are admitted facts by the 25 O.S.NO.7768/2008 defendant. Therefore, merely production of the documents by itself cannot prove the existence of the measurement as stated by the plaintiff. Moreover, only certified copy of the sale deed of Ex.P-9 has been produced. In this Ex.P-9 the measurement of the property has been stated as pertaining to the vacant site bounded on East - West 39 feet or 11.89 mtrs, North - South 51 feet or 15.54 mtrs bounded on East by Government Road, West by House of Ramaiah, North by House of Dodda Govindappa, South by House of Narayanappa.
Taking into consideration the nature of the reliefs sought for by the plaintiff, the admitted facts in the oral evidence, the nature of the description of the property in the documents produced by the plaintiff, there is no case made out by the plaintiff. The requirements for the reliefs of Mandatory Injunction and Permanent injunction being not placed before the Court, thereby the issues No.1 to 4 are answered in the NEGATIVE.
17. ISSUE No.7 : The relief sought for by the plaintiff has been for Mandatory Injunction and Permanent injunction. The cause of action has been described to have arose in the month of December 2007 and March 2008 26 O.S.NO.7768/2008 when the defendant encroached the portion of the schedule property as shown in the sketch and that the 3rd defendant to have been continuously obstructing the plaintiff from gaining access to the vacant portion of the schedule property on the western side and on 15.10.2008 when the 3rd defendant and their family members obstructed, threatened and manhandling the plaintiff and the family members from entering through the passage. The cause of action is a bundle of rights and in view of the nature of the averments of the plaint, the contention of the defendants that the suit to be barred by limitation, therefore is not accepted. In the given facts and circumstances of the case, the point of limitation is a mixed question of fact and law. Hence, this issue is answered in the NEGATIVE.
18. ISSUE No.6 : Office had raised objection about the payment of the Court Fee and then subsequently fresh Valuation Slip and Court Fee was furnished and only then the case has been registered. On 04.11.2009 the office has made a note about excess court fee to have been refunded. Hence, this contention is not tenable and this issue is answered in the NEGATIVE.
27 O.S.NO.7768/200819. ISSUE No.5 : The plaintiff in the above case has been unable to prove to be entitled for the relief as sought for. The nature of the evidence is such that there is no acceptable evidence in regard to the description of the suit property though various source of title deeds have been relied upon by the plaintiff. None of those deeds co-relate with each other regarding the measurements. The admitted facts about non-availability of the documents about leaving 5 feet passage by itself discards the case of the plaintiff. Hence, this issue is answered in the NEGATIVE.
20. ISSUE No.8 : Due to the findings as above, 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 27th day of October 2016) (Ms. VELA.D.K.) XIV Addl. City Civil Judge Bangalore.28 O.S.NO.7768/2008
ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W.1 Lakshmikantha P.W.2 A.N.Nanjundareddy
List of documents exhibited on behalf of plaintiff :
Ex.P.1 Special Power of Attorney Ex.P.2 Property tax Ex.P.3 Rough sketch Ex.P.4 Rectification Deed Ex.P.5 Sale deed dated 21.06.1962 Ex.P.6 Sale deed dated 21.05.1965 Ex.P.7 Sale deed dated 05.04.1967 Ex.P.8 Settlement deed dated 30.01.1977 Ex.P.9 Sale deed dated 24.04.1980
List of witnesses examined on behalf of defendant :
- NIL -
List of documents exhibited on behalf of defendant : Ex.D.1 to Ex.D.3 Certified copy of the plaint, written statement and Memo in O.S.3651/2004 Ex.D.4 & Ex.D.5 Certified copy of the plaint and deposition in O.S.2392/2010 29 O.S.NO.7768/2008 Ex.D.6 Certified copy of the plaint in O.S.5034/2003 Ex.D.7 Certified copy of the deposition in O.S.5034/2003 Ex.D.8 Certified copy of the order on I.A.No.1 in O.S.5034/2003 Ex.D.10 Certified copy of the order in O.S.5034/2003 Ex.D.11 Photograph Ex.D.12 Certified copy of the plaint in O.S.4517/1990 Ex.D.13 & Ex.D.14 Certified copy of the written statement and issues in O.S.2392/2010 XIV ADDL.CITY CIVIL JUDGE BANGALORE