Bangalore District Court
Sri.Vijay Bagare vs Smt.Chikkamuninanjamma on 12 April, 2019
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 12th day of April, 2019.
Present
SRI.DINESH HEGDE, B.A.LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.5902/2015
PLAINTIFF : Sri.Vijay Bagare,
s/o Narasing Bagare,
aged about 35 years,
r/at No.21, 3rd Cross, 8th Main,
Hoysala Nagar, Bangalore-16.
( By Sri.H.V.Shyame Gowda, Advocate)
-VS-
DEFENDANTS : 1. Smt.Chikkamuninanjamma,
w/o M.Muniraju,
aged about 56 years,
r/at No.189, B.Channasandra,
Kalyananagar Post, Bangalore-43.
2. Sri.M.Muniraju
s/o Munithimmaiah
(D.No.2 deleted as suit against
defendant No.2 is dismissed as per
Order dtd:30/1/2017)
3. Sri.Praveen Kumar.M,
s/o M.Muniraju,
aged about 35 years,
r/at No.189, Channasandra,
Kalyananagar Post, Bangalore-43.
4. Smt.Muniyamma,
w/o late Pillappa,
2 O.S.No.5902/2015
aged about 71 years,
r/at Bachanna Layout,
B.Channasandra,
Banasawadi Post, Bangalore-33.
(D.1 - By Sri.SBM, Advocate)
(D.2 - Suit dismissed as per order
Dtd:30/1/2017)
(D.3 - By Sri.GPR, Advocate)
(D.4 - By Sri.SCK, Advocate)
Date of Institution of the suit : 6/7/2015
Nature of the Suit : Injunction Suit
Date of commencement of recording
of evidence : 23/10/2017
Date on which the Judgment was
pronounced : 12/4/2019
Year/s Month/s Day/s
Total Duration : 03 09 06
(Dinesh Hegde)
XIX Addl.City Civil & Sessions Judge,
Bangalore City.
JUDGMENT
The plaintiff has filed this suit against defendants for the relief of permanent injunction restraining them from interfering 3 O.S.No.5902/2015 with his peaceful possession and enjoyment of the schedule property and for such other reliefs.
2. The case of plaintiff in nutshell is that:-
The plaintiff is the absolute owner in possession and enjoyment of residential house property No.21 formed out of land in Sy.No.91 (Old Sy.No.30/2), House list Khatha No.108/2, New Khatha No.279 measuring East to West 30 ft and North to South 43 ft situated at Horamavu Village, K.R.Pura Hobli, Bangalore, presently called as Hoysalanagar, 3rd Cross, 8th Main, Bangalore-16. Subbaiah was the propositus of defendants' family and owner of several properties out of which he is also owner of Sy.No.91 situated at Horamavu village, K.R.Pura Hobli, Bangalore East Taluk. In the year 1939 said Subbaiah had borrowed certain loan from one Peddaiah and for security purpose he had executed a nominal sale deed in favour of Peddaiah and after discharging the said loan within a year, he got back the same in the year 1940 under Registered Sale deed which was formally registered in the name of his wife Smt.Chikka Akkayammma, but the said Subbaiah being the manager/sole owner and kartha of the family he continued to be in possession and personally 4 O.S.No.5902/2015 cultivating the said land in addition to other lands. The said Subbaiah and Chikka Akkayamma had two daughters namely Smt.Muniyamma and Yellamma. The said Yellamma died leaving behind the 2nd defendant as her son. In the year 1964 the said Subbaiah and Chikka Akkayamma in the family arrangement allotted their family properties to the defendant No.2 & 4 and accordingly, the land in Sy.No.91 old Sy.No.30/2 which is now renumbered as Sy.No.91/3 measuring 1 acre 27 guntas situated at Horamavu village assigned to the share of Muniyamma defendant No.4 which was then valued at Rs.500/- and the remaining properties then valued at Rs.1,000/- which are house property, 02 guntas in Sy.No.99,
03 guntas in Sy.No.56 and other properties situated at B.Channasandra allotted to the share of the said Muniraju (defendant No.2) who being the son of their daughter late Yellamma. As per the said oral partition, the said Muniyamma and Muniraju were continued to be in separate possession and enjoyment of their respective shares. For better confirmation of the said oral partition, the said Subbaiah and Chikka Akkayamma got executed a Will in the year 1965 in favour of defendant No.2 & 4. However, on the basis of oral partition, the mutations got effected in the names of Muniyamma and 5 O.S.No.5902/2015 Muniraju, but the revenue authorities inadvertently referred the said Will also while effecting the mutation since the mother of the defendant No.4 pursued to get the said mutation entries.
3. It is further averred in the plaint that from the date of partition, the defendant No.4 continued to be in exclusive possession and enjoyment of the land Sy.No.91/3 measuring 1 acre 27 guntas as absolute owner by paying the taxes regularly, thereafter in the year 1989-90 the said Muniyamma the defendant No.4 has formed a revenue residential layout in the entire 1 acre 27 guntas (which is now called as Hoysala Nagar) and sold the sites to different people and similarly she sold site No.21, House list Khatha No.108/2, new Khatha No.279 measuring East to West 30 ft and North South 43 ft including 1½ sq.house in favour of one T.S.Mohan under a registered sale deed dtd:29/11/1990. The said Mohan sold the said property in favour of one Smt.Gouthami under Regd.Sale deed dtd:17/8/2004 who in turn sold the said property in favour of Sudhakar Shetty K.B. under a Regd.Sale deed dtd:17/5/2006 and said Sudhakar Shetty being the owner in possession and enjoyment of the said site has sold the same in favour of plaintiff herein under a Regd.Sale deed 6 O.S.No.5902/2015 dtd:9/7/2010. The khatha and other documents have also registered in the name of plaintiff and the plaintiff being the absolute owner in possession and enjoyment of the suit schedule property.
4. It is further averred in the plaint that after the demise of the said Subbaiah in the year 1974, his wife Smt.Chikka Akkayamma became sick and her health deteriorated from year to year 1981, she suffered from paralysis and totally bedridden. The defendant No.4 being her daughter, she took the entire care and hospitality of Chikka Akkayamma and she only provided food, shelter and medical assistance etc. Further, in the year 2006, the said Chikka Akkayamma lost her mental conscious and became unsound state of mind and was unable to identify and understand the things and she had became dependent in all respects. Such being the case, defendant No.1 to 3 by colluding with each other forcibly carried Chikka Akkayamma when the defendant No.4 was not at home and got revoked the Will of the year 1965 and created other bogus Will pertaining to land Sy.No.91/3 in the names of defendant No.1 to 3. The defendant No.1 is none other than wife of defendant No.2 and defendant No.3 is their son. The defendant No.4 by suspecting about the attitudes of defendant 7 O.S.No.5902/2015 No.1 to 3 in the year 2007 she questioned the defendant No.1 to 3 about their acts.
5. It is further averred in the plaint that the defendant No.1 to 3 recently in the 1st week of May 2015 came near the suit schedule property and openly proclaimed that they are the owners of the entire area and if the matter is not settled amicably with them, they will come with large force and dispossess the plaintiff from the suit schedule property. Further, on 21/6/2015, the defendants along with 4-5 goonda elements came near the suit schedule property and again warned the plaintiff and tried to trespass in to the plaintiff's house and at that time, the plaintiff and the neighbours have resisted the defendants' illegal acts and immediately, rushed to the jurisdictional police station and complained about the illegal acts of defendant No.1 to 3 and their henchmen, but the police informed the plaintiff to approach the civil court for proper remedy as the dispute is civil in nature. Hence, plaintiff was constrained to file this suit for the relief of injunction and prays to decree the suit.
6. After service of suit summons, defendant No.1 & 3 appeared through their counsel and filed their detailed written 8 O.S.No.5902/2015 statement by contending that plaintiff is neither having ownership nor in lawful possession over the suit schedule property. His claim for injunctive relief is based on incorrect averments and false allegations and in the absence of an element of legal right, the plaintiff is not entitled for any legal remedy much less for permanent injunction as claimed in the suit. The description of the schedule property, its measurement and boundaries as stated in the body of the plaint as well as in the schedule are not correct. The plaintiff is laying a false claim over a portion of land bearing Sy.No.91/3 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk measuring 01 acre 27 guntas absolutely belonging to the defendant No.1. The said property was earlier owned and possessed by late Chikka Akkayamma and she herself had instituted a suit O.S.No.3198/2007 against her daughter Smt.Muniyamma, the defendant No.4 herein seeking injunctive relief in respect of the land measuring 1 acre 27 guntas in Sy.No.91/3 of Horamavu village. She died while suit was pending leaving behind her Regd.Will dtd:24/1/2007 bequeathing the subject- matter of the said suit in favour of defendant No.1 who continued the said suit as LR of deceased Chikka Akkayamma and got the plaint amended by incorporating additional facts 9 O.S.No.5902/2015 and a prayer for declaration of her ownership. The defendant No.4 herein had seriously contested the said suit. The Court of 8th Addl.City Civil Judge, Bangalore (CCH.No.15) decreed the said suit on merits by granting decree for ownership and also for permanent injunction on 29/10/2011. Now the plaintiff has filed the above suit in collusion with the defendant No.4 & 5.
7. The defendant No.1 & 3 have further contended that Smt.Chikka Akkayamma made a Regd.Will at the first instance in favour of her daughter Muniyamma, the defendant No.4 herein in respect of a portion of the said land. Subsequent to execution of the said Will, the defendant No.4 Smt.Muniyamma had acted detrimental to the interest of her mother Chikka Akkayamma. After coming to know of illegal acts of Muniyamma (defendant No.4 herein), the said Chikka Akkayamma had revoked the Will made in favour of defendant No.4 by Regd.Cancellation Deed. Subsequently, she bequeathed her land measuring 01 acre 27 guntas in Sy.No.91/3 of Horamavu village in favour of defendant No.1 under Regd.Will dtd:24/1/2007. Smt.Chikka Akkayamma died on 27/11/2008. Thus, the defendant No.1 has acquired ownership and possession in respect of the said land under the 10 O.S.No.5902/2015 said Will consequent upon death of the testator Smt.Chikka Akkayamma. Due execution of the said Regd.Will dtd:24/1/2007 was established in O.S.No.3198/2007. The Hon'ble Court had rightly accepted the case of the defendant No.1 and declared her as absolute owner and in lawful possession of the said land by granting injunction against the defendant No.4 vide judgment and decree dtd:27/10/2011.
8. The defendant No.1 & 3 have denied the averments of the plaint that in the year 1964, the said Subbaiah and Chikka Akkayamma had allotted their family properties to the defendant No.2 & 4 in alleged family arrangement and accordingly, the land bearing Sy.No.91 (old Sy.No.30/2), new Sy.No.91/3, measuring 1 acre 27 guntas situated at Horamavu Village assigned to the share of Muniyamma, the defendant No.4 herein and the remaining properties were allotted to the share of defendant No.2 are all false. The defendants have denied the alleged family arrangement and oral partition referred in para 4 of the plaint are false and the same are created for the purpose of this case. The plaintiff has also not properly valued the above suit and court fee paid on the plaint is not in accordance with law. Hence, the above suit is also 11 O.S.No.5902/2015 liable to be dismissed for improper valuation and payment of insufficient court fee. Hence, prays to dismiss the suit with exemplary costs.
9. Defendant No.4 filed her detailed written statement by contending that she was the sole owner of the entire land Sy.No.91/3 measuring 1 acre 27 guntas and she sold the entire area long back about 20-25 years ago by forming the revenue layout sites. She admits that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property and she undertakes that either herself or her children will not interfere with the plaintiff's possession and enjoyment of the suit schedule property. She has no objection to decree the suit in favour of the plaintiff in the interest of justice and equity.
10. In view of the Memo filed by the Advocate for the plaintiff that he is not pressing suit against defendant No.2, suit against defendant No.2 is dismissed as per the Order dtd:30/1/2017.
11. Based on the above pleadings, the following issues were framed:-
12 O.S.No.5902/2015
ISSUES
1. Whether plaintiff proves that he has perfected his title and possession by way of adverse possession with the knowledge of the previous owner since many years and also he is in lawful possession and enjoyment of suit schedule property as on the date of filing of the suit?
(Issue No.1 is deleted as per the orders dtd:4/12/2018)
2. Whether plaintiff proves the alleged interference from defendants over the schedule property?
3. Whether the suit is hit by principles of Res-judicata?
4. Whether plaintiff is entitled for the relief of permanent injunction as prayed in the plaint?
5. What order or decree?
ADDITIONAL ISSUE
1. Whether the plaintiff proves that he is in lawful possession of the schedule property by virtue of the sale deed dtd:9/7/2010?
12. On behalf of plaintiff, plaintiff himself examined as P.W.1 and marked Ex.P.1 to Ex.P.6. On behalf of the defendants, defendant No.1 himself got examined as D.W.1 and marked Ex.D.1 to Ex.D.10.
13 O.S.No.5902/2015
13. Heard the arguments and perused the records.
14. My findings on the above issues are as follows:-
Issue No.1:- Deleted as per Order dtd:4/12/18; Issue No.2:- In the Affirmative;
Issue No.3:- In the Negative;
Issue No.4:- In the Affirmative;
Addl.Issue No.1:- In the Affirmative; Issue No.5:- As per the final order for the following:-
REASONS
15. ADDL.ISSUE No.1 & ISSUE No.2:- These issues are taken up together as they require common discussion.
16. It is the specific case of plaintiff that by virtue of the sale deed dtd:9/7/2010 he becomes the owner in possession of the suit schedule property, khatha is also changed in to his name. On the other hand, it is the case of the defendants that they are the absolute owners in possession of the suit schedule property. With these rival contentions both the parties to the suit adduced oral as well as documentary evidence.
17. In order to prove his claim plaintiff himself examined as P.W.1 and marked Ex.P.1 to Ex.P.6.
14 O.S.No.5902/2015
18. Ex.P.1 is the certified copy of the sale deed dtd:9/7/2010 reveal that the plaintiff purchased the immovable property Site No.21 from House List khatha No.108/2, new khatha No.279 situated at Horamavu village, K.R.Puram Hobli, Bangalore East Taluk comes under the BBMP limits measuring East to West - 30 ft , North to South - 43 ft, in all measuring 1290 sq.ft. bounded with East by property No.22, West by property No.20, North by Road and South by private property.
19. On perusal of the plaint schedule, the property described in Ex.P.1 sale deed tallies with it. The plaintiff purchased the suit schedule property from his vendor Mr.Sudharakar Shetty K.B for the sale consideration amount of Rs.6,45,000/-. The vendor of the plaintiff had purchased this property from his previous owner under the Regd.Sale deed dtd:15/2/2006. Based on the Regd.Sale deed, khatha has been changed in to the name of plaintiff under Ex.P.2 and Form-B Property Register khatha extract reveal that on 6/7/2011 the BBMP issued the khatha in the name of plaintiff with respect of the same suit schedule property.
20. Ex.P.3 is the Nil Encumbrance certificate reveal the sale transaction held in the respect of the suit schedule 15 O.S.No.5902/2015 property. It also reveals the previous sale transaction as well as plaintiff's sale deed executed by his vendor. Ex.P.4 is the tax receipt issued by BBMP reveals that plaintiff has paid property tax to the suit schedule property. Ex.P.5 is the photograph reveals the existence of the suit schedule property. Ex.P.6 is the electricity bill reveals that plaintiff has paid electricity charges with respect of electricity connection obtained by him to the suit schedule property.
21. In order to rebut the claim of plaintiff, defendant No.1 is examined as D.W.1 and marked Ex.D.1 to Ex.D.10.
22. Ex.D.1 is the certified copy of the sale deed dtd:17/7/1940 reveals that Subbaiah sold the land in Sy.No.91 of Hormavu in favour of Peddaiah in the year 1939. Peddaiah sold the same in favour of Chikka Akkayamma w/o Subbaiah. No doubt, Chikka Akkayamma is the w/o Subbaiah. Muniyamma and Yellamma are the 2 daughters of Subbaiah and Chikka Akkayamma. The said Muniyamma is none other than defendant No.4 herein. The defendant No.2 is none other than the son of defendant No.4. According to the defendants, in an oral partition between Subbaiah and Akkayamma, Sy.No.91 old Sy.No.30/2, New Sy.No.91/3 measuring 1 acre 27 16 O.S.No.5902/2015 guntas fell in to the share of defendant No.4. The land in Sy.No.99 measuring 2 guntas fell in to the share of defendant No.2. Likewise the land in Sy.No.56 to an extent of 3 guntas also fell in to the share of defendant No.2. With these contentions the defendants would contend that they have perfected their title to the suit schedule property.
23. Ex.D.2 is the certified copy of the Revocation/Cancellation of the Will dtd:3/11/2006 reveals that Smt.Chikka Akkayamma executed a Revocation/Cancellation of Will on 3/11/2006 stating that on 5/5/1965 she had executed a Will bequeathing her properties to others.
24. Under Ex.D.3 she has bequeathed her properties in favour of her daughters Yellamma and Muniyamma as well as her grand-son Muniraju. Based on the Will, mutation has been effected in the name of Chikka Akkayamma to an extent of 1 acre 27 guntas in Sy.No.91/3. Ex.D.4 is the RTC extract with respect of the land in Sy.No.91/3 reveal the name of M.Muniyappa, H.Muninanjappa, M.Nanjappa, M.Shivashankar, M.Shankaranarayana as well as Chikka Akkyamma. Ex.D.5 is the mutation register extract that 1 acre 27 guntas of land stands in the name of Chikka Akkayamma. However, Ex.D.3 17 O.S.No.5902/2015 & Ex.D.5 are one and the same, but, issued on different dates. Ex.D.6 is the RTC extract also reveals the name of M.Muniyappa, H.Muninanjappa, M.Nanjappa, M.Shivashankar, M.Shankaranarayana as well as Chikka Akkyamma as mentioned in Ex.D.4.
25. Ex.D.7 is the certified copy of the Regd.Will dtd:24/1/2007 reveals that Smt.Chikka Akkayamma w/o late Subbaiah executed a Will in favour of Chikka Muninanjamma who is none other than defendant No.1. Based on the Will, the defendant No.1 claims title over the land in Sy.No.91/3 to an extent of 1 acre 27 guntas. Land in Sy.No.69 measuring 25 ft x 65 ft situated at Dodda Banasawadi B.Channasandra, the land in 56/22 to an extent of 3 guntas situated at B Channasandra. Ex.D.8 is the Encumbrance certificate on 17/7/1940 Chikka Akkyamma purchased 1 acre 20 guntas of land in Sy.No.91 from Peddanna for a sale consideration amount of Rs.300/-.
26. Ex.D.9 is the certified copy of the judgment and decree dtd:29/10/2011 in O.S.No.3198/2007 wherein Chikka Akkayamma, Chikka Muninanjamma filed a suit against Smt.Muniyamma for the relief of declaration of title and 18 O.S.No.5902/2015 injunction. The plaintiff Chikka Muninanjamma in O.S.No.3198/2007 is none other than the defendant No.1 herein and the defendant in O.S.No.3198/2007 is the defendant No.4 in the present suit. The said suit came to be declared declaring that plaintiff Chikka Akkyamma represented by Chikka Muninanjamma was the absolute owner of the suit schedule property bearing Sy.No.91/3 measuring 1 acre 27 guntas and accordingly, the defendant No.4 herein was restrained from interfering with the said property.
27. Ex.D.10 is the certified copy of the judgment and decree dated 15/12/2017 in O.S.No.1061/2014 reveal that Umashankar filed a suit against Chikka Muninanjamma who is none other than defendant No.1 herein for the relief of injunction with respect of the land in Site No.25, House List Khatha No.186/1 situated at Horamavu Village, K.R.Puram Hobli.
28. P.W.1 in his cross-examination has stated that the Sy.No.91/3 mentioned in the schedule property totally measures 1 acre 27 guntas and it was owned by Chikka Akkayamma. He came to know that Chikka Akkayamma had filed a suit against defendant No.4 in respect of the same 19 O.S.No.5902/2015 property. But, he do not know the said suit came to be decreed in her favour. Execution of the Will by Chikka Akkayamma bequeathing Sy.No.91/3 came to his knowledge only after filing of this suit. He do not know as to whether Chikka Akkyamma had executed a Will in favour of defendant No.4 and later it was revoked and subsequently, she executed Will in favour of defendant No.1.
29. P.W.1 has further stated that he has not produced document to show that what right Muniyamma had to sell the property in favour of T.S.Mohan. He denied the suggestion that Muniyamma had no legal right to sell the property to T.S.Mohan. Therefore, it is clear that the defendant is claiming the title over the suit schedule property when the plaintiff is in possession of the suit schedule property by virtue of his sale deed dtd:9/7/2010.
30. D.W.1 is none other than defendant No.1. In her cross-examination, she has stated that the land in Sy.No.91/3 situated at Horamavu totally measuring 1 acre 27 guntas. She has not produced documents to show that still today the said property remains as agricultural land. She has further stated that the land in Sy.No.91/3 of Horamavu falls within the limits 20 O.S.No.5902/2015 of BBMP and the said area is named as Hoysala Nagara. She denied the suggestion that several people constructed residential houses in different sites and residing therein. She denied the suggestion that the land in Sy.No.91/3 remains a developed layout. She has further stated that, it may be true that MR.No.73/1977-78 is effected in the name of defendant No.4 with respect of the land in Sy.No.91/3. She has not questioned or filed appeal for cancellation of the said mutation. In the year 2006 khatha got effected in the name of Chikka Akkayamma by deleting the name of defendant No.4.
31. On perusal of the evidence of D.W.1, it is clear that though the defendant No.1 claiming title over the suit schedule property by virtue of the decree in O.S.No.3198/2007, the evidence on record reveal that the plaintiff was put in possession of the suit schedule property by virtue of his sale deed dtd:9/7/2010.
32. On perusal of the evidence adduced by both the sides, it is crystal clear that based on the Regd.Sale deed dtd:9/7/2010, the plaintiff was put in possession of the suit schedule property. The khatha has been changed in to his name based on the sale deed dtd:9/7/2010. Ex.P.1 to Ex.P.6 21 O.S.No.5902/2015 produced by the plaintiff clearly establishes that plaintiff is in possession of the suit schedule property. No doubt, the defendants claim their title to the suit schedule property based on the decree in O.S.No.3198/2007. It is pertinent to note that the suit filed by the plaintiff is not for the relief of declaration of title with respect of the suit schedule property, but for injunction. Even though the possession of the plaintiff over the suit schedule property is illegal, he cannot be ousted from the suit schedule property without due process of law. It is for the defendant No.1 to oust the plaintiff from the schedule property in accordance with law if she has valid title over the suit schedule property. The title dispute as well as the tenor of the defence put forward by the defendants itself reveal that based on the judgment in a title suit i.e., O.S.No.3198/2007 the defendants are trying to dispossess the plaintiff from the suit schedule property. Therefore, the plaintiff has proved that he is in possession over the suit schedule property by virtue of the sale deed dtd:9/7/2010. He also proved that defendants are interfering with his possession over the suit schedule property. Hence, I answer Addl.Issue No.1 & Issue No.2 in the Affirmative.
22 O.S.No.5902/2015
33. ISSUE No.3:- The defendant No.1 in her written statement contended that the land in Sy.No.91/3 of Horamavu village measuring 1 acre 27 guntas absolutely belonging to her. According to her, the said property was earlier belongs to Chikka Akkayamma. She instituted suit in O.S.No.3198/2007 against the defendant No.4 for injunctive relief. She died during the pendency of the suit by bequeathing the property under a Regd.Will dtd:24/1/2007 in favour of the defendant No.1. The defendant No.1 continued the said suit as legal representative of deceased Chikka Akkayamma and got the plaint amended by incorporating additional facts and prayer for declaration of her ownership. The said suit came to be decreed in favour of the defendant No.1 herein. Hence, the defendant No.1 has contended that the suit of the plaintiff is hit by the Law of Res-judicata.
34. Under Section 11 of the Code of Civil Procedure 1908, "no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a Court competent to 23 O.S.No.5902/2015 try subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."
35. No doubt, in O.S.No.3198/2007 the defendant No.1 herein declared as absolute owner of the land in Sy.No.91/3 measuring 1 acre 27 guntas of Horamavu village. Admittedly, the plaintiff is not a party to the said suit. The O.S.No.3198/2007 filed by the defendant No.1 herein for the relief of title and injunction against defendant No.4 herein. The issue raised in the said suit as to whether the defendant No.1 herein was the absolute owner of the suit schedule property. The said issue came to be answered in the Affirmative holding the defendant No.1 herein is the owner of the said property. It also held that she is in possession and enjoyment of the schedule property.
36. Admittedly, the judgment and decree in O.S.No.3198/2007 has not attained finality since the decree was challenged before the Hon'ble High Court of Karnataka in RFA. Therefore, the suit of the plaintiff is not hit by the principles of Res- judicata. Hence, I answer issue No.3 in the Negative. 24 O.S.No.5902/2015
37. ISSUE No.4:- The plaintiff has proved that he is in possession and enjoyment of the suit schedule property by virtue of the sale deed dtd:9/7/2010. The plaintiff has also proved that the defendant is interfering with the suit schedule property. The sale deed of the plaintiff and his vendors with respect of suit schedule property is so far not cancelled by a decree by the court of competent jurisdiction. The khatha is also stands in the name of plaintiff.
38. In view of the Memo filed by the Advocate for the plaintiff that he is not pressing suit against defendant No.2, suit against defendant No.2 is dismissed as per the Order dtd:30/1/2017.
39. Therefore, the plaintiff is entitled for relief of permanent injunction against defendant No.1, 3 & 4 as prayed for. Hence, I answer issue No.4 in the Affirmative.
40. ISSUE No.5:- In view of findings on issue No.1 to 4, I pass the following:-
ORDER Suit of the plaintiff is decreed with costs against defendant No.1, 3 & 4.
25 O.S.No.5902/2015
The defendant No.1, 3 & 4 are permanently restrained from interfering with the suit schedule property of the plaintiff without due process of law.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 12th day of April, 2019).
(Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Vijay Bagare
b) Defendants' side :
D.W.1 - M.Chikka Muninanjamma II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of the sale deed
dtd:9/7/2003.
Ex.P.2 Property register extract issued by
BBMP.
Ex.P.3 Property tax receipt issued by BBMP
Ex.P.4 Ex.P.4 is the tax receipt issued by
BBMP
Ex.P.5 Photograph
Ex.P.6 Electricity Bill
26 O.S.No.5902/2015
(b) Defendants' side : -
Ex.D.1 Certified copy of the sale deed
dtd:17/7/1940.
Ex.D.2 Certified copy of the Revocation Deed
dtd:3/11/2006.
Ex.D.3 Certified copy of the Mutation
Ex.D.4 Certified copy of the RTC
Ex.D.5 Computerized mutation
Ex.D.6 Computerized RTC
Ex.D.7 Certified copy of the Will
dtd:24/1/2007
Ex.D.8 4 certified copies of Encumbrance
certificates
Ex.D.9 Certified copy of the judgment and
decree dtd:29/10/2011 in
O.S.No.3198/2007
Ex.D.10 Certified copy of the judgment and
decree dated 15/12/2017 in
O.S.No.1051/2014.
(Dinesh Hegde)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
GVU/-
27 O.S.No.5902/2015
Judgment pronounced in open court vide
separate detailed judgment with the
following operative portion:-
ORDER
Suit of the plaintiff is decreed with
costs against defendant No.1, 3 & 4.
The defendant No.1, 3 & 4 are
permanently restrained from
interfering with the suit schedule
property of the plaintiff without due
process of law.
Draw decree accordingly.
(Dinesh Hegde)
XIX ADDL.CITY CIVIL &
SESSIONS JUDGE,
BANGALORE CITY.