Bangalore District Court
Somanchi Uma Maheswara Roa vs Narayana Swamy on 4 December, 2024
KABC010087412013
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU (CCH-36)
DATED ON THIS THE 4th DAY OF DECEMBER 2024
Present: Sri.J.V.Kulkarni, B.Sc., L.L.B.,
XXXV Addl. City Civil & Sessions Judge, Bengaluru.
O.S.No.6383/2013
Plaintiffs : 1. Sri.Somanchi Uma Maheswara Rao,
Son of Shri Somanchi Krishna Murthy,
Aged 43 years,
Residing at 8614 Argentine way,
Plano, Texas-75024
USA.
Represented herein by his Power of
Attorney Holder Mrs.Srirangam Radha
Ramani, Age 43 years,
W/o.Dr.S.V.G.Krishna Sastry, Flat
No.14061, Block 14, TIMARU,
Prestige Wellington Park Apartments,
Near Gangamma Circle,
IAF Main Road, Jalahalli,
Bangalore-560 013.
(By Sri/Smt.K.P.A., Advocate)
-Vs-
2
O.S.No.6383.2013
Defendant : Shri Narayana Swamy,
Aged major,
Residing at plot No.14,
Khata No.553/14, Mahadevapura,
K.R.Puram Hobli, Bangalore.
(By Sri/Smt.D.P., Advocate)
Date of institution of the suit : 31-08-2013
Nature of the suit : Possession
Date of commencement of : 27-11-2018
recording of the evidence
Date on which the judgment : 04-12-2024
was pronounced
Total duration : Years/s Month/s Day/s
11 03 03
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
The General Power of Attorney holder of the plaintiff has filed the suit for recovery of possession, mandatory injunction, mesne profits etc., 3 O.S.No.6383.2013
2. In the plaint, the plaintiff stated that he is the absolute owner and possessor of the suit property i.e., house No.14, katha No.153, katha No.553/14, situated at Mahadevapura, K.R.Puram Hobli, Bengaluru South Taluk, measuring East to West 30ft, North to South 40ft, with specific boundaries mentioned in the plaint.
This property is shown as 'A' schedule property in the plaint and it is the case of plaintiff that he has purchased A schedule property by virtue of Sale Deed, dated: 25-06-1994 from Ramaiah. The plaintiff stated that soon after the execution of the Sale Deed, the possession was delivered to him and the revenue records transferred in the name of the plaintiff. The plaintiff got an opportunity to work in Canada, therefore, he went to Canada for employment in the year 2004. Later, in the year 2007, he got an opportunity to work in the United States of America and since then, he is working in United States. The plaintiff claimed that though he is residing in United States of America, he used to visit India and visit the suit property once in two years.
He claimed that when he was in India, he used to visit the suit property at least once in a week. After he shifted to United States, he 4 O.S.No.6383.2013 requested his best friend K.V.R.Seshadri Rao to look after the suit property. His friend was visiting the suit property on routine basis. In the month of January 2013, the plaintiff was shocked and surprised to notice that certain illegal constructions were coming up in the suit property. Despite the efforts of the plaintiff, the defendant was not allowed to enter the suit property, the plaintiff could not initiate the proceedings because his brother was fell ill and died due to illness.
The plaintiff contended that the defendant has encroached the 'B' schedule property measuring East to West 13.8ft on northern side, 17 ft on southern side, North to South 40ft, totally 721 sq.ft. The defendant has no right or title over the suit property illegally trespassed in the suit property forcibly constructed the house by encroaching the 'B' schedule property. Therefore, he is liable to pay mesne profits at the rate of Rs.8,000/- p.m., from January 2013 to till the date of filing of the suit and Rs.64,000/- p.m., as mesne profits from January 2013 to August 2013. The defendant refused to vacate the suit property and handover the vacant possession to the plaintiff he filed suit for recover of 5 O.S.No.6383.2013 possession, mandatory injunction of demolishing the 'B' schedule property and also for mesne profits. He sought to decree the suit.
3. The suit summons issued to the defendant, the defendant appeared through his counsel and filed the written statement by denying the plaint averments in toto. He specifically denied that he has encroached upon 'B' schedule property claimed by the plaintiff. He contended that he is the he absolute owner of site No.14A, Khata No.553/14A, formed in property No.554/1, situated at Mahadevapura, K.R.Puram Hobli, presently in Ward No.81, Bengaluru, measuring East to West 20ft, North to South 40ft, totally 800 sq.ft., bounded on East Private property, West Site No.14, North 20ft road, South Site No.15. He purchased the said property from R.Murthy and others by their GPA holder N.Prithviraju by virtue of Sale Deed, dated 25-01-2012.
The defendant contended that from the date of purchase, he is in peaceful possession and enjoyment of site No.14A, BBMP has issued 'B' katha in the name of the defendant. The defendant has constructed a residential building in his property, he has obtained electricity connection, gas connection to his property. He performed 6 O.S.No.6383.2013 housewarming ceremony. All those documents shows that he is in possession and enjoyment of the property. The plaintiff has not entitled for any relief claimed in the plaint. Therefore, he prays to dismiss the suit.
4. Based on the pleadings, my Predecessor in office has framed the following Issues:-
1 Whether the plaintiff proves that he is the absolute owner of the suit schedule property as contended in the plaint?
2. Whether the plaintiff is entitled for vacant possession of the suit schedule property from defendant?
3. Whether the plaintiff is entitled for mesne profits of Rs.64,000/- at the rate of Rs.8,000/-
per month from 01-01-2015 to 31-08-2013 with interest at the rate of 18% per annum?
4. Whether the plaintiff is entitled for future mesne profits from the date of suit till the date of delivery of possession from the defendant?
5. Whether the defendant proves the plaint schedule property and the property purchased by him are different?
6. What Order or Decree?
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O.S.No.6383.2013
5. The trial commences, plaintiff examined as P.W.1. Exs.P.1 to P.25 were marked on behalf of the plaintiff. Plaintiff was fully cross- examined. The defendant examined as D.W.1. Exs.D.1 to D.12 were on behalf of the defendant. He closed his side.
6. I heard the arguments of learned counsel for the plaintiff and learned counsel for the defendant. Learned Counsel for the plaintiff also filed the written arguments along with the decisions referred in it.
7. My findings to the above issues are as follows:-
Issue No.1 : In affirmative
Issue No.2 : In affirmative
Issue No.3 : In affirmative
Issue No.4 : In affirmative
Issue No.5 : In negative
Issue No.6 : As per final order for the following:-
REASONS
8. Issue Nos.1 & 2:- Since these issues are interlinked with each other based on ownership and illegal possession of the defendant over 8 O.S.No.6383.2013 'B' schedule property. Therefore, in order to avoid the repeated discussions, both issues are taken together for consideration.
9. The plaintiff claimed that he is the owner of site No.14, katha No.553/14, situated at Mahadevapura, K.R.Puram Hobli, Bengaluru South taluk, measuring East to West 30ft, North to South 40ft, bounded on East Private property, West House site No.13, North 20 feet road, South House Site No.15. In order to prove his ownership over 'A' schedule property, the plaintiff has produced Ex.P.1. It is the sale deed, dated 25-06-1994 executed by the father of vendors of defendant at an undisputed point of time. Ex.P.1 shows that the plaintiff purchased the suit schedule 'A' property for consideration of Rs.46,000/-. The boundaries mentioned in Ex.P.1 tallies with the plaint schedule, Ex.P.1 also discloses that there is ½ sq.A.C.C sheet roofed house in the site. Subsequently, the name of plaintiff was duly mutated in the BBMP records as per Ex.P.6.
10. The case of the plaintiff is that in the month of January 2013 to August 2013, the defendant encroached upon 'B' schedule property 9 O.S.No.6383.2013 and constructed house in the 'B' schedule property which is belonging to the plaintiff. Whereas, the case of the defendant is that the sons of Ramaiah have executed Sale Deed in respect of site No.14/A of Mahadevapura Village to him in an area of 800 sq.ft by virtue of Sale Deed dated 25-01-2012. Thus, he became owner and possessor of site No.14/A, katha No.553/14A.
11. The defendant has also produced his Sale Deed, it is marked as Ex.D.1. I have examined Ex.D.1, it is executed on 25-01-2012. Wherein, the vendors of the defendant are R.Murthy S/o.Ramaiah, R.Rajendra, S/o.Ramaiah, R.Satish S/o.Ramaiah and R.Shoba D/o.Ramaiah represented by their GPA N.Prithviraju executed the Sale Deed. This Sale Deed is in respect of site No.14A, katha No.553/14A measuring East to West 20ft North to South ft, in all 800 sq.ft bounded on East Private property, West site No.14, North 20ft road, South site No.15. By production of Ex.D.1, the defendant admitted that towards western side of the alleged site of 14A, there is a site No.14. Therefore, existence of site No.14 is not in dispute, the remaining boundaries mentioned in the Ex.P.1 plaint schedule and Ex.D.1 are one and the 10 O.S.No.6383.2013 same. By production of this document, the defendant contended that he is the owner of site No.14/A, his name is duly mutated in BBMP records. BBMP has also issued 'B' katha extract as per Ex.D.4. He is regularly paying tax to BBMP as per Exs.D.5 to D.9.
12. He contended that he has constructed three storied building over the site No.14A and in this regard, he produced Ex.D.12 the house warming ceremony invitation, the Gruhapravesha was scheduled on 9- 8-2023. Exs.D.8 to Ex.D.11 are the electricity and gas bills produced to show that he is in possession of site No.14A. The possession of defendant over the portion of 'A' schedule property is not in dispute because the plaintiff claims that the defendant encroached upon 'B' schedule property and constructed the house. In view of Ex.D.1, now the burden shifts on the defendant to prove that site No.14A was carved in Sy.No.154/1 of Mahadevapura Village and his vendors have right, title or interest over it to transfer the same in favour of him. Because, in this Ex.D.1, his vendors i.e., R.Murthy and others have stated that their father Ramaiah has acquired the site No.14A by virtue of Gift deed document dated 25-08-1971. The father of vendors of defendant has 11 O.S.No.6383.2013 also executed Sale Deed in respect of site No.14 in favour of the plaintiff as per Ex.P.1. Therefore, the father of the vendors of vendor executed the sale Deed by selling site No.14 with specific measurement and boundaries mentioned in Ex.P.1, how the children of Ramaiah able to execute the Sale Deed as per Ex.D.1. Their father has lost his right in the year 1994.
13. The learned counsel for the plaintiff relied upon Section 48 of T.P.Act and argued that there is a priority of rights created by transfer. According to learned Counsel for the plaintiff, the Sale Deed relied upon by the plaintiff is first in point of time, whereas, the Sale Deed executed by the defendant is subsequent one, dated 25-01-2012. The D.W.1 in his cross-examination unequivocally admitted that he has not produced the layout map and in the cross-examination, he is admitted the layout map confronted to him and marked as Ex.P.24. Ex.P.24 is the layout map which shows that site No.14A is not in existence. Only the site No.14 is in existence. How, the site No.14A was created is not explained by the defendant by producing the cogent documents. 12
O.S.No.6383.2013
14. The defendant contended that he has already constructed the house in site No.14A. D.W.1 in his cross-examination admitted that he has not obtained he construction permission and without obtaining the construction permission, he constructed house over his alleged site No.14A. In Kushal Ram Reddy Vs. BBMP in 2024 Live Law KAR 51 in W.P.No.11261/2023 by referring Section 148 of the BBMP Act, the Hon'ble High Court has issued guidelines to BBMP to demolish the unauthorised constructions and the constructions which are made in violation of the building plan. In this case, the defendant has not at all obtained licence from the BBMP, his construction of house is totally illegal and it is by encroaching he property of the plaintiff. In this case, the Commissioner was also appointed by the Court to ascertain as to whether site No.14A was independent or it is encroached in site No.14. The Commissioner submitted his report and his report is part of the record. As per the report of the Commissioner, A,B,C,D area is the site No.14 as per the layout map produced by the plaintiff, A, E F, D is the area which is in possession of the plaintiff. It is measuring East to West 16'.4" +12'+5", North to South 40'. E, B, C, F is the area which is in 13 O.S.No.6383.2013 possession of he defendant measuring East to West 20ft, North to South 40ft. The site No.14A was not in existence. The Commissioner also opined that both the sites are formed in unauthorised layout, layout is not approved by the competent authorities. The report of the Commissioner was not objected by both the parties. Therefore, it is crystal clear that the defendant has encroached upon the 'B' schedule property belonging to the plaintiff and constructed ground +three storied building over it.
15. The defendant has not obtained any licence before constructing the house. The vendors of defendant have no right to sell the site No.14A, because as per Ex.P.1, their father has already alienated the site No.14 in favour of the plaintiff. Ex.P.15 are the photographs produced to show that the defendant started his construction in the month of January 2013, in all stages, there is obstruction by the plaintiff for construction. In spite of resistance by the plaintiff, the defendant illegally completed the construction. He has not bothered about the consequences and went on constructing the 14 O.S.No.6383.2013 building without any semblance of right. Therefore, the defendant is not entitled for any kind of equities.
16. The learned counsel for the plaintiff in the written argument relied upon the Judgment of Hon'ble Supreme Court in Atla Sidda Reddi Vs Busi Subba Reddy and others, wherein, the Hon'ble Supreme Court accepted that a Sale Deed which is prior in time as more evidentiary revalue than the subsequent Sale Deed. In the evidence of defendant, he has categorically admitted that he has not obtained construction licence and admitted he layout plan wherein, there is no site No.14A. The vendor of the defendant has no right or better title over site No.14A. The defendant has not made reasonable enquiry not followed the maxim the caveat emptor before purchasing he alleged site No.14A. He has not bothered about the legal consequences and without obtaining the licence constructed the building by encroaching 'B' schedule property. Encroachment is proved by the report of the Commissioner. Learned advocate for defendant contended that simple suit for declaration is not maintainable and the plaintiff has not sought declaration of his title, therefore the suit is not maintainable. The plaintiff 15 O.S.No.6383.2013 produced abundant documents to show that he is the owner of A schedule property and B Schedule property is encroached by the defendant. The Hon'ble Supreme Court of India in [2008] 5 S.C.R. 331 ANATHULA SUDHAKAR . v. P. BUCHI REDDY (DEAD) BY LRS. & ORS. It is held as under:
HELD: 1.1 Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. [Para 17] [349-G; 350-A] 1.2 A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses 16 O.S.No.6383.2013 in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration.
(Underlined and emphasis supplied by me) The report of Commissioner forming part of record and has got evidentiary value. Hence, I answer issue Nos.1 & 2 in affirmative.
17. Issue No.3:- The plaintiff has sought mesne profits because from January 2013, the defendant highhandedly and illegally constructed the house by encroaching 'B' schedule property. Therefore, he is liable to pay mesne profits at he rate of Rs.8,000/- p.m. and for 8 months, it comes to Rs.64,000/-. In support of his case, the plaintiff cross-examined the D.W.1, D.W.1 in his cross-examination stated that he has constructed ground + three storied building on the ground floor it may fetch around Rs.40,000/- rent per month. This cross-examination of D.W.1 makes it clear that the plaintiff is entitled for mesne profits at the rate of Rs.8,000/- p.m. Because, it is a reasonable ground derived by the defendant by illegal construction.
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O.S.No.6383.2013
18. The learned counsel for the plaintiff referred the Judgment of Hon'ble Delhi High Court in Rattan Lal Vs.Girdhari Lal AIR 1972 Delhi 11 which discussed about the Judgment of Hon'ble Delhi High Court in Hindustan Motors Ltd., Vs. Seven Seas Leasing Ltd., in 2018 SCC Online Del 11391, wherein, the Hon'ble Delhi High Court recognized the precedential observations of the Courts in matters of granting mesne profits. The defendant is in wrongful possession and caused damage to he plaintiff by encroaching 'B' schedule property. Therefore, the plaintiff is entitled to mesne profits at the rate of Rs.8,000/- p.m. from January 2013 to August 2013.
19. Further, the Hon'ble Supreme Court in AIR 1965 S.C. 1231 in case of Mahant Narayana Dasjee Varu And Ors. vs Board Of Trustees, The Tirupathi, held that mesne profits are to be granted along with the interest. The rate of interest claimed by the plaintiff is proper and sufficient. Accordingly, I answer issue No.3 in the affirmative.
20. Issue No.4:- The plaintiff has also sought future mesne profits from the date of suit to till the date of delivery of possession, it 18 O.S.No.6383.2013 requires separate enquiry under Section 2(12) of CPC, but having regard to the facts and circumstances of the case, the plaintiff is entitled for future mesne profits which is to be enquired in the separate enquiry as contemplated under Section 2(1) of CPC. Accordingly, I answer issue No.4 in the affirmative.
21. Issue No.5:- The defendant in his written statement contended that his property is different from site No.14. Except the Sale Deed and one 'B' extract, the defendant has not produced any layout map how the site No.14A came into existence. As I have already stated, he has not produced the Gift Deed referred in Ex.D.1, he has not examined he GPA holder Prithviraj or his vendors to prove that site No.14A belongs to them and their father Ramaiah. In the absence of the proof, it can be safely inferred that the vendors of he defendant has no better title to convey site No.14A which is not in existence at all. The report of Commissioner is also clear that the 'B' schedule property is encroached by the defendant and house was constructed. The BBMP has also not taken any action against the defendant for demolition of the illegal construction of house by defendant without obtaining the 19 O.S.No.6383.2013 valid licence. Any how, he defendant failed to prove that his site and site No.14 are different. Hence, I answer Issue No.5 in the negative.
22. Issue No.6:- In view of my findings to the issue Nos.1 to 5, I pass the following:-
ORDER Suit of the plaintiff decreed with costs.
The defendant is directed to remove the illegal construction made in 'B' schedule property within three months by demolishing the house and handing over the vacant possession to the plaintiff.
The defendant is directed to pay mesne profits at he rate of Rs.64,000/- along with interest at he rate of 18% p.a. from January 2013 to August 2013.
The plaintiff is also entitled for future mesne profits for which, separate enquiry is necessary. If the defendant fails to deliver the vacant possession of 'B' 20 O.S.No.6383.2013 schedule property, the plaintiff is at liberty to execute the decree.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 4 th day of December 2024) (J.V.KULKARNI) XXXV Addl.City Civil & Sessions Judge, Bengaluru ANNEXURE Witnesses examined on behalf of the plaintiffs.
P.W.1 : Sri.Somanchi Uma Maheshwar Rao Witnesses examined on behalf of the defendants.
D.W.1 : Sri.Narayanaswamy Documents marked on behalf of the plaintiffs.
Ex.P.1 : Original Sale Deed
dated 25-06-1994
Ex.P.2 : Encumbrance Certificates
to P.5
Ex.P.6 : Tax paid receipts
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O.S.No.6383.2013
Ex.P.7 : Photographs (6)
Ex.P.8 : Certified copy of Tippani
Ex.P.9 : Hissa Tippani
Ex.P.10 : Certified copy of the Atlas
Ex.P.11 : Balabagada
Ex.P.12 : Akar-bandh
Ex.P.13 : Pakka-Book
Ex.P.14 : Total station survey document
Ex.P.15 : Photographs with CD
Ex.P.16 : RTCs
Exs.P.17 : Challans
& P.18
Ex.P.19 : Certified copy of Sale Deed
dated 14-03-1995
Ex.P.19(A) : Typed copy of Ex.P.19
Exs.P.20 : Tax paid receipts (3)
to P.22
Ex.P.23 : Private sketch
Ex.P.24 : Xerox copy of the layout plan
Ex.P.25 : Photograph
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O.S.No.6383.2013
Documents marked on behalf of the defendants.
Ex.D.1 : Certified copy of the Sale Deed
Exs.D.2 : E.C.
& D.3
Ex.D.4 : Demand Register Extract
Ex.D.5 : Receipt
Exs.D.6 : Tax paid receipts
to D.9
Ex.D.10 : Gas connection document
Ex.D.11 : Gas Bill
Ex.D.12 : House Warming invitation
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
Digitally signed
by JEEVAN
JEEVAN KULKARNI
KULKARNI Date: 2024.12.07
13:53:50 +0530