Bangalore District Court
M.S.Ambuja Bai vs S.N.Raju on 18 January, 2016
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BENGALURU CITY (CCH-6)
This the 18th day of January, 2016.
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
24th Addl. City Civil & Sessions Judge,
Bengaluru City.
O. S. No.6963/2008
PLAINTIFF: M.S.Ambuja Bai,
D/o. M.Sridhara Rao,
Aged about 60 years,
No.33, 9th Cross, N.R.Colony,
Bengaluru-19.
Rep. by her GPA Holder,
Sri.P.S.Appu Rao.
(By Sri.S.Srinivasa Murthy, Adv.)
Vs.
DEFENDANT: S.N.Raju,
S/o. Smt.Munirathnamma @ Chinnamma
@ Rathnamm,
Aged about 55 years,
Ex. Bus Conductor, BMTC,
R/at Somasundara Palya,
Beguru Hobli, Bengaluru South Taluk.
(By.Sri.N.Hanumantha Reddy, Adv.)
Date of institution of the suit: 17.10.2008.
Nature of the suit: Injunction suit.
Date of commencement of 15.09.2010.
recording of evidence:
2 O.S.6963/2008
Date on which Judgment was 18.01.2016.
pronounced:
Duration Days Months Years
01 03 07
JUDGMENT
The instant suit filed by the plaintiff against the defendant is one for permanent injunction against the defendant, his agents, workers, employees and any other persons claiming through or under him restraining them from interfering, disturbing etc., with the plaintiff's peaceful possession and enjoyment of the property or encroaching the schedule property in whatsoever manner and for permanent injunction against the defendant, his agents etc., restraining them from alienating or creating charge or creating any third party interests in the schedule property and for mandatory injunction against the defendant directing him to re-erect the compound wall on the southern portion and on western portion shown by letters AB and AD in the annexed plan and also to direct the defendant to install an iron gate in between 3 O.S.6963/2008 B and C, which was existed earlier and also for costs and such other reliefs.
2. a) The plaintiff has stated that she is the absolute owner of the property bearing No.963 of Singasandra Village, Hongasandra Village Panchayath, Begur Hobli, Bengaluru South Taluk. Later numbered as 33/16/1/14 Singasandra Village, City Municipal Counsel, Bommanahalli and now numbered as Khatha No.30/30/33/16/1/14 of Singasandra Village, Bommanahalli Range, BBMP, Bengaluru.
b) The plaintiff further stated that the defendant is the grand son of one Venkatappa so also son of Munirathnamma @ Chinnamma @ Rathnamma. The defendant is the witness to the sale agreement entered into between the plaintiff and Venkatappa son of Late Chinnaiah, Munirathnamma @ Chinnamma @ Rathnamma.
c) The plaintiff further stated that the property bearing Sy.No.No.16/1 of Singasandra Village 4 O.S.6963/2008 originally belongs to one Sri.Venkatappa S/o Late Chinnaiah and Smt.Munithayamma @ Ammaiah and Smt.Munirathnamma @ Chinnamma @ Rathnamma D/o Venkatappa residents of Somasundara Palya, Begur Hobli, Bengaluru South Taluk. The said owners formed a layout comprising of 30 sites of different dimension as per the plan in the property bearing Sy.No.No.16/1 of Singasandra Village, near Hosur Road, Bengaluru. During 1990, the said owners sold the sites formed in Sy.No.No.16/1 of Singasandra Village to various persons and one such site bearing No.14 was sold to Sri.P.S.Appu Rao S/o Late Sri.P.Siddoji Rao for a sale consideration of Rs.37,500/- and accordingly, the said owners executed a sale agreement on 19.9.1990 and confirmed the receipt of Rs.37,500/-. She further stated that on account of certain restrictions imposed by the State Government, the vendor did not execute the sale deed and the vendors executed an affidavit to confirm the delivery of possession of site bearing No.14 formed in Sy.No.16/1, Singasandra Village, 5 O.S.6963/2008 Begur Hobli, Bengaluru South Taluk. The said sale agreement and affidavit are also produced.
d) The plaintiff further stated that, the owners also executed GPA on the same day in favour of P.S.Appu Rao authorizing him to exercise the rights of ownership including the power to convey the same. Said Appu Rao, as GPA Holder so also an agreement holder executed a registered sale deed on 17.05.1991 in favour of Smt.Ambuja Bai, which was registered on 7.6.1991.
e) The plaintiff further stated that upon the sale of the property in favour of the plaintiff, the khatha in respect of the said property was mutated in the name of the plaintiff, separate khata number was assigned as per Form No.10 issued by the Village Panchayath, Hongasandra Village, Begur Hobli and accordingly collected the taxes from the plaintiff.
f) The plaintiff further stated that she has constructed a compound wall with hollow bricks 6 O.S.6963/2008 around the schedule property and kept an iron gate during December 1991. The compound wall was erected on all sides i.e., AB, BC, CD, DA with an iron gate on the eastern side between BC and the property measures 30x50 feet and the said gate was kept on eastern side of the property. The entire schedule property is delineated by letters ABCD, which is enclosed with the plaint.
g) According to the plaintiff few years thereafter, properties coming under Hongasandra Village Panchayath were transferred to City Municipal Council, Bommanahalli upon establishment of the same. Accordingly the said property was assessed by the local planning authority i.e., CMC, Bommanahalli. She further stated that BBMP was established and all the properties, which were coming under the jurisdiction of CMC, Bommanahalli now have been transferred to BBMP for administration and maintenance. In para-10 of the plaint, the plaintiff also stated with regard to issuing of 14 documents by 7 O.S.6963/2008 Hongasandra Village Panchayath, CMC, Bommanahalli and BBMP, Bengaluru as per item Nos.1 to 14. In addition to that the plaintiff also produced additional documents to substantiate his ownership, right along with a separate list. She further stated that she has been enjoying the suit schedule property right from 1991 i.e., since 17 years along with her husband.
h) According to the plaintiff CMC, Bommanahalli assigned new No.33/16/1/14 in respect of the property purchased by her and collected the taxes from time to time and also collected betterment charges of Rs.16,667/-. She has stated that BBMP also assigned property No.30/30/33/16/1/14 of Singasandra Village, Bommanahalli Range, Bengaluru to the property purchased by the plaintiff and assessed by the CMC, Bommanahalli, Bengaluru. BBMP also collected the taxes for the years 2000- 2001 to 2006-2007. BBMP also issued documents evidencing the ownership rights of plaintiff and thus, the plaintiff is the absolute owner of the property bearing No.30/30/33/16/1/14.
8 O.S.6963/2008
i) In para-14 of the plaint, she pleaded the inference of the defendant by stating that the defendant has removed the compound wall situated on the southern side and also western side of the suit schedule property and removed the iron gate, which was so installed on the eastern side of the suit schedule property. She further stated that the defendant removed the whole compound wall situated on the northern side and either sides of the iron gate on the eastern side and re-erected the compound wall on the northern side and on the eastern side so as to appear as if there was no construction earlier and whatever construction has been made is only a recent one.
j) In paras-15 and 16 she also pleaded the alleged interference of the defendant and also stated that the defendant attempted to encroach upon the property to defeat the right of the plaintiff and also stated that the defendant has to re-erect the compound wall on the southern side and also northern 9 O.S.6963/2008 side of the schedule property and portion is marked with letters AB and AD.
k) The plaintiff further stated that she is entitled for mandatory injunction and permanent injunction and also stated that the defendant has no business to alienate or creating charge or creating third party interest in the suit property. In para-21 of the plaint the plaintiff pleaded the cause of action. Thus, the plaintiff prays this Court to decree the suit as prayed.
3. The plaint schedule reads as follows:
All that piece and parcel of the property bearing No.14, formed in Sy.No.16/1 and having Khatha No.963 of Singasandra Villag,e Hongasandra Village Panchayath, Begur Hobli, Bengaluru South Taluk later numbered as 33/16/1/14, Singasandra Village, City Municipal Council, Bommanahalli now numbered as Khatha No.30/30/33/16/1/14 of Singasandra Village, Bommanahalli Range, BBMP, Bengaluru, delineated by letters ABCD in the annexed plan, measurements and boundaries are as follows:
East to West : 30 feet
North to south : 50 feet.
In all measuring 1500 sq. feet.
10 O.S.6963/2008
On the East by : 25´ Road,
West by : Property No.19,
North by : Property No.15,
South by : Property No.13.
4. a) The defendant filed written statement
denying all the plaint averments and contended that it is true that the defendant is the grand son of Venkatappa. It is false to say that he is the son of Munirathnamma @ Chinnamma @ Rathnamma. He also denied that he is the witness to the sale agreement entered into between the plaintiff and Venkatappa S/o Late Chinnaiah, Munirathnamma @ Chinnamma @ Rathnamma.
b) The defendant further contended that, the land bearing Sy.No.16/1 of Singasandra Village is a dry agricultural land owned and possessed by Venkatappa S/o Late Chinnaiah. But it is false to say that the said land was owned by Munithayamma @ Ammaiah, Munirathnamma @ Chinnamma @ Rathnamma. He also denied the fact that the owners of the said land formed layout comprising of 30 sites of different dimension in Sy.No.16/1 of Singasandra 11 O.S.6963/2008 Village. He also denied the fact that during 1990 the owners sold the sites formed in Sy.No.16/1 to various persons and denied the fact that one such site bearing No.14 was sold to P.S.Appu Rao for a sale consideration of Rs.37,500/-. He also denied the fact that the said owners executed a sale agreement on 19.9.1990 by receiving sale consideration of Rs.37,500/-. He also further contended that it is also false to state that on account of certain restrictions imposed by the State Government, the vendor did not execute the sale deed and also denied the fact that the vendors have executed an affidavit to confirm the delivery of possession of site bearing Sy.No.14 formed in Sy.No.16/1 of Singasandra Village and also denied the execution of GPA on the same day in favour of P.S.Appu Rao authorizing him to exercise the right of ownership including the power to convey the property. He also contended that all the documents referred to by the plaintiff are fabricated documents. He also contended that the sale deed executed by Appu Rao in favour of the plaintiff on 12 O.S.6963/2008 17.5.1991 is also a created document in collusion with Appu Rao. He also stated that the said GPA, agreement of sale and sale deed are not binding on the defendant.
c) The defendant further contended that the Khatha documents which are referred to by the plaintiff in the plaint are all created and fabricated documents and also further contended that the said land at that point of time was not converted for residential purpose and hence, the Village Panchayath have no right to issue form No.10 and to collect the tax from the plaintiff.
d) The defendant in para-6 of the written statement also denied the fact that, he has demolished the compound wall and iron gate during December 1991 and also denied the fact that the plaintiff has put up a compound wall in December 1991. He also denied the fact that, the said property measures 30x50 feet. He further contended that it is not true that the entire schedule property is delimited 13 O.S.6963/2008 by letters ABCD. He also further contended that, Sy.No.16/1 was an agricultural dry land and there was no scope to assess the tax as Gramatana property by the Village Panchayath or by the CMC, Bommanahalli or by the BBMP, Bommanahalli. He also contended that all those averments are far from truth based on the false and fabricated documents by the plaintiff and also stated that the plaintiff will not get right, title or interest and claim possession on the alleged suit schedule property. He also contended that, the alleged suit schedule property does not exist in Sy.No.16/1 of Singasandra Village.
e) According to the defendant, the plaintiff and her husband are strangers to Sy.No.16/1. The said alleged site is not demarcated in the said Sy.No.16/1 and also contended that the plaintiff is not in possession from 1991 as alleged by them. He also disputed the very authority of the Panchayath and BBMP in collecting the tax from the plaintiff in respect of the suit property and further contended that, they 14 O.S.6963/2008 have no right to assign new number over the property on the basis of the alleged sale deed and to collect the betterment charges.
f) He also further contended that the schedule given to the plaint is totally false. There is no site bifurcated in Sy.No.16/1 measuring 30x50 feet with boundaries described there under in the plaint. He also contended that the sketch furnished along with the pliant is fabricated just to file this suit by the plaintiff.
g) The specific defence of the defendant finds place in para-10 of the written statement, wherein he has contended that, Sy.No.16/1 of Singasandra Village was the absolute property of Venkatappa @ Chinnaiah measuring 1-20 acres. During his life time, said Venkatappa was in lawful possession and enjoyment of the same. Said Venkatappa died on 16.05.1995 leaving behind the properties and Will dated 8.3.1968 creating interest to succeed in favour of his daughters and the defendant in this case. Said 15 O.S.6963/2008 Venkatappa or his daughters or the defendant have not formed layout as alleged by the plaintiff. He further contended that he is in lawful possession and enjoyment of 0-30 Guntas of land in Sy.No.16/1 of Singasandra Village. Out of which, 0-25 Guntas of land was converted into non-agricultural purpose. He further stated that, he also put up the compound around the said property by providing a gate and also stated with regard to he putting up the borewell and obtained electricity facility and putting up of 10 residential units and also with regard to putting up 'A' type AC sheet high roof shed measuring about 80x100 feet apart from putting up a vehicle service station in the same survey number by the defendant. He further stated that he let out the same to a tenant and the tenant is in occupation since November 2007.
h) According to the defendant, the plaintiff is a stranger to the said Sy.No.16/1. The defendant also further contended that, said Sy.No.16/1 totally measures 3-00 Acres. Out of which, 1-20 Acres was 16 O.S.6963/2008 owned and possessed by late Venkatappa. To the extent of said land, Venkatappa created a registered Will dated 8.3.1968 in favour of the defendant and his daughters. In pursuance of the same, the revenue records were transferred in the name of the defendant after the death of Venkatappa by the consent of the daughters of Venkatappa by virtue of Will. Venkatappa died on 16.5.1995. The daughter of Venkatappa i.e., the mother of the defendant Smt.Ammayamma died on 4.3.1999. Thus, the defendant acquired the said extent of land and became the absolute owner in possession and enjoyment of the said land.
i) He also further contended that, out of 1-20 acres of land, 0-20 Guntas of land was sold in favour of one Sone Gowda in 2002. Said Sone Gowda converted the said extent of land from agricultural purpose to non-agricultural purpose and in turn, he sold the said extent of 0-20 guntas of land in favour of M/s.Shambhav Trade Links and two others. As 17 O.S.6963/2008 joint co-owners, they entered into joint development with N.D. Developers for construction of apartment and the project is in the stage of completion. He further stated that in about 0-10 guntas of land in the said survey number, 80 feet road was formed by HAL House Building Co-operative Society from the Hosur Road. In the remaining extent of 0-30 guntas, the defendant converted the said land from agricultural to non-agricultural purpose of about 0-25 Guntas as per the conversion order No.BDS:ALN:SR(S):639:2004- 05 dated 19.2.2005. As per the orders passed by the Spl. Deputy Commissioner, Bengaluru District and thus, the entire extent of 1-20 acres is used accordingly. He also stated that there was no land to form the sites, since the total extent of land is being utilized and the nature of the land is also changed. As claimed by the plaintiff, no layout was formed to sell the site in favour of the plaintiff.
j) In paras-12 and 13 of the written
statement, the defendant specifically denied his
18 O.S.6963/2008
alleged interference as stated by the plaintiff in the plaint and further stated that to the total extent of land retained by him, about 0-30 guntas is totally delineated by constructing compound and gate very long back and the total property is in lawful possession and enjoyment of the defendant. There was no site belongs to the plaintiff as stated in the plaint. He also stated that the plaintiff is not in possession of the site in the land bearing Sy.No.16/1 of Singasandra Village. The alleged site was not at all formed as such the question of removing the compound wall and the gate by the defendant does not arise. The defendant also contended that the suit is not properly valued and the Court fee paid is insufficient and he also resisted the suit on several other grounds and prays for dismissal of the suit.
5. Based on the above pleadings of the parties, my learned predecessors have framed the following issues:
19 O.S.6963/2008
1. Whether plaintiff proves that she is in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference of defendant?
3. Whether the plaintiff is entitled for the relief of Mandatory Injunction as sought for?
4. Whether plaintiff is entitled for the relief of Permanent Injunction as sought for?
5. What order or decree?
6. In support of the case of the plaintiff, the Power of Attorney Holder of the plaintiff is examined as PW.1 and got marked Ex.P.1 to Ex.P.30. Ex.P.19 to Ex.P.27, Ex.P.1(a) and Ex.P.3(a) are marked in the cross-examination of PW.1 by confronting the same.
7. The defendant is examined as DW.1 and got marked Ex.D.1 to D.56 and Ex.D.56(a) and closed his side.
8. Heard both sides and perused the records. In addition to that, the learned counsel for the plaintiff so also the learned counsel for the defendant filed their respective written arguments. The learned 20 O.S.6963/2008 counsel for the plaintiff relied upon the following decisions.
1. Manu/DE/1690/2012 - Shri Ramesh Chand Vs Suresh Chand and another.
2. MANU/SC/1222/2011 - Suraj Lamp and Industries Pvt. Ltd. Vs State of Haryana and another.
3. In the Supreme Court of India -
Ananthulu Sudhakar Vs P.Buchi Reddy (Dead) by LRs and Ors.
9. The learned counsel for the defendant also relied upon the following decisions.
1. AIR 2013 Karnataka Page 52 - Miss Sandra Lasley Anna Bartels Vs Miss.P.Gunavathy.
2. AIR 2012 Supreme Court Page 206- Suraj Lamp and Industries Pvt. Ltd. Vs State of Haryana and another.
3. ILR 2014 KAR page 998- Sri.K.Vishwanathan, since deceased by his legal heirs., Vs Smt.Anusuyamma.
4. AIR 2014 P & H 24 - Kirpal Singh (deceased) through LRs Vs Karnail Ram and others.
10. Perused the decisions and also perused the written arguments filed by both the sides. 21 O.S.6963/2008
11. My findings on the above issues are:
Issue No.1: Partly in the affirmative, Issue No.2: Partly in the affirmative, Issue No.3: Negative, Issue No.4: Partly in the affirmative, Issue No.5: As per the final order for the following;
REASONS
12. Issue No.1: Record discloses that, this suit filed by the plaintiff against the defendant is one for permanent injunction restraining the defendant, his agents, workers, employees or any other persons from interfering, disturbing etc., with the plaintiff's peaceful possession and enjoyment of the suit schedule property or by encroaching the schedule property in whatsoever manner and also restraining them from alienating or creating charge or creating any third party interests in the schedule property and for mandatory injunction.
13. Since, this is only a suit for permanent injunction, the scope of this suit is very limited. The plaintiff has to establish that, he is in lawful 22 O.S.6963/2008 possession of the plaint schedule property as on the date of the suit and the alleged interference of the defendant. The title with regard to the suit schedule property can be looked into incidentally and the plaintiff must also establish that, his vendor has got right to convey the schedule property in her favour.
14. In support of the case of the plaintiff, she relied upon the documents Ex.P.1 to Ex.P.30.
15. Ex.P.1 is the unregistered sale agreement dated 19.9.1990 said to have been executed by Sri.Venkatappa and daughters Smt.Munithayamma and Smt.Munirathnamma in favour of one P.S.Appu Rao S/o. Siddoji Rao. This agreement of sale was executed by the alleged vendors in respect of the site bearing No.14 i.e., the plaint schedule property carved out of Sy.No.16/1 of Singasandra Village for a sale consideration of Rs.37,500/-. It is worth to mention at this stage itself that, on perusal of Ex.P.1 at page No.1 there was a overwritten at the place where the name of the said Appu Rao is mentioned 23 O.S.6963/2008 and it appears to have been retyped by putting white mark and there is no explanation from the plaintiff as to why such an insertion was made in Ex.P.1. The possession of the property is shown to have been delivered in favour of said P.S.Appu Rao. There is also a reference in Ex.P.1 with regard to an irrevocable GPA said to have been executed by the alleged vendors in Ex.P.1 in favour of the purchaser P.S.Appu Rao. Though, the said irrevocable GPA was executed on 20.9.1990, but the recital on Ex.P.1 shows as if the said irrevocable GPA was executed on the same day i.e., on 19.9.1990. Ex.P.1(a) is the alleged signature of the present defendant in this case and is shown to have one of the attestor to the said agreement of sale deed. The defendant in his written statement categorically denied his signature as per Ex.P.1(a). It is worth to mention that, the property described in the schedule of Ex.P.1 is none other than the property shown in the plaint schedule. There is no reference in Ex.P.1 with regard to the conversion order of the land, if any, in respect of Sy.No.16/1. 24 O.S.6963/2008
16. Ex.P.2 is an affidavit sworn to by the very same vendors i.e., Sri.Venkatappa, Smt.Munithayamma @ Ammayya and Smt.Munirathnamma @ Chinnamma @ Rathnamma, wherein, they have sworn to in the affidavit to the effect that, they have already sold the property i.e., site No.14 formed in Sy.No.16/1 in favour of said Appu Rao under the agreement of sale and also stated that, they have received the full sale consideration amount and further stating that, the possession of the property was delivered along with the relevant records. The said three persons also agreed to execute the registered sale deed whenever demanded by the purchaser without anticipating any further amount from the purchaser. In this affidavit also, there is a reference with regard to the executant executing an irrevocable GPA on the same day i.e., on 20.9.1990.
17. Ex.P.3 is an alleged irrevocable GPA said to have executed by said Venkatappa, Munithayamma and Munirathnamma in favour of P.S.Appu Rao, which is 25 O.S.6963/2008 also in respect of site No.14 carved out of Sy.No.16/1, wherein, the executants have authorised the GPA holder to do all deeds and things shown in Ex.P.3 and further authorised to the GPA holder to sell, transfer the schedule site, mortgage, lease, release etc., of the suit schedule property and also to present the document before the Registration Authority and to sign in all the registration books whenever necessary. The particulars of the property shown in the schedule Ex.P.3 clearly tallies with the particulars of the property shown in the schedule of Ex.P.1, so also, the plaint schedule.
18. Ex.P.4 is the registered sale deed dated 17.5.1991 executed by said Appu Rao as GPA holder of Venkatappa, Munithayamma and Munirathnamma in favour of one Ambuja Bai, the plaintiff in this case. (The purchaser under Ex.P.4 appears to be the wife of the Power of Attorney Holder). But in the plaint and also in the sale deed, Ambuja Bai is shown as the daughter of M.Sridhara Rao, but the name of her 26 O.S.6963/2008 husband is not mentioned. This sale deed Ex.P.4 was executed by the vendor in favour of the plaintiff in respect of the plaint schedule property bearing site No.14, but for the first time, the khatha number is shown as 963 in the Gramatana Limits of Singasandra Village. The particulars of the property shown in the schedule of Ex.P.4 clearly tallies with the particulars shown in the schedule of Ex.P.1, Ex.P.3, so also, in the plaint schedule. This sale deed was for a sale consideration of Rs.38,000/- and the possession of the property is shown to have delivered in favour of the plaintiff acting in pursuance of Ex.P.4. The time gap between Ex.P.1 to Ex.P.3 and Ex.P.4 is hardly eight months. However, there is no mention in the schedule of Ex.P.4 as to in which survey number, the said site was carved out. But on the other hand, the khatha No.963 comes within the Gramatana Limits.
19. Ex.P.5 and Ex.P.6 are the certified copies of the demand register extract issued from Hongasandra Grama Panchayath, which reveals that, the plaintiff is 27 O.S.6963/2008 shown to be the owner/anubhavdhar of the property bearing site No.14 under the assessment No.963. In this document, the name of the vendor of the plaintiff Appu Rao does not find place nor shown the names of Venkatappa and others.
20. Ex.P.7 to Ex.P.9 are all tax paid receipts paid by the plaintiff in this case on 18.11.1991, 20.2.1994, 17.9.1993 in respect of the property bearing No.963/14 and 963/1298 for the assessment years 1991-92, 1992-93 and 1993-94 respectively.
21. Ex.P.10, Ex.P.14 and Ex.P.15 are all tax paid receipts paid by the plaintiff to Bommanahalli CMC in respect of the property i.e., Anubhavdhar Khatha No.33/16/1/14 and tax has been paid on 11.3.1998, 22.7.199, 8.10.2007 for the assessment years 1997- 98 to 2007-08.
22. Ex.P.11 is the certified copy of the assessment extract issued from Nagarasabha, Bommanahalli, which also reveals that, the plaintiff is the owner and 28 O.S.6963/2008 occupier of site bearing No.16/1/14 measuring 50x30 feet, a vacant site at Singasandra.
23. Ex.P.12 is the receipt (patta) book issued for the assessment year 1998-99 in respect of the property bearing No.33/16/1/14.
24. Ex.P.13 is the receipt, wherein, the betterment charges have been paid by the plaintiff to Singasandra Grama Panchayath on 11.3.1998 in respect of the property bearing Sy.No.16/1/14.
25. Ex.P.16 is the receipt issued to the plaintiff for having paid the amount to obtain the Khatha Extract in respect of the property bearing No.30/30/33/16/1 issued from BBMP.
26. Ex.P.17 is the Khatha Certificate issued from BBMP for the relevant year 2007-08, wherein, the plaintiff is shown to be the person in whose favour the Khatha was recorded in respect of the property bearing Sy.No.30/30/33/16/1/14. Ex.P18 is the Khatha Certificate issued from BBMP, which is also for 29 O.S.6963/2008 the assessment year 2007-08, wherein, the plaintiff is shown to be the owner of site No.30/30/33/16/1/14 measuring 50 feet x 30 feet.
27. Ex.P.19 is the certified copy of the plaint in O.S.No.9241/01 filed by one P.R.Ravindran against Munithayamma, Munirathnamma and the defendant in this case, which is in respect of site No.3, Khatha No.963 carved out of Sy.No.16/1 measuring 40 x 30 feet. Ex.P.20 is the written statement filed by the 3rd defendant therein, who is also the defendant in this case.
28. Ex.P.21 is the certified copy of the plaint in O.S.No.9239/01 filed by one A.R.Ananthan against the very same persons in respect of site No.1, Khatha No.963. Ex.P.22 is the written statement field by the third defendant therein.
29. Ex.P.23 is the certified copy of the plaint in O.S.No.9242/01 filed by one N.V.Lohithakshan against the very same defendants in respect of site 30 O.S.6963/2008 No.4, Khatha No.963. Ex.P.24 is the certified copy of the written statement filed by the third defendant therein.
30. On careful perusal of the written statement filed by the third defendant therein in para 3, he goes to the extent of saying that, he is the absolute owner and he is in lawful possession and enjoyment by exercising all kinds of right over the entire Sy.No.16/1 of Singasandra Village and further stated that, the documents of title are made out in his name and he has put up the compound wall and further by stating that, he is the absolute owner of Sy.No.16/1 of Singasandra, wherein, no layout was formed. However, in the written statement filed by the defendant in this case, he claims that, he is the owner in possession of 0-30 guntas of land in the very same Sy.No.16/1.
31. Ex.P.25 is the certified copy of the Nil Encumbrance Certificate in respect of site No.14 of the plaint schedule property formed in Sy.No.16/1, 31 O.S.6963/2008 which shows that, the said property was not encumbered in favour of any person from 1.4.2006 to 21.6.2011. Ex.P.26 is the similar Encumbrance Certificate for the same period in respect of the adjacent site No.13 carved out in the same survey No.16/1, which also reveals that, the property was not encumbered in favour of any person. Ex.P.27 is the similar Encumbrance Certificate in respect of the adjacent site No.12 carved out of the same Sy.No.16/1 issued for the same period, which shows that, the said property was not encumbered in favour of any person from 1.4.2008 to 27.6.2011.
32. Ex.P.28 is the certified copy of the order sheet in O.S.No.9240/01 filed by Ravunni.P.R. against Munithayamma and others, which came to be dismissed for non-prosecution on 14.11.2003. Ex.P.29 is the certified copy of the plaint in O.S.No.9240/01 filed by P.R.Ravunni against Munithayamma, Munirathnamma and the defendant in this case S.N.Raju in respect of Sy.No.2, Khatha 32 O.S.6963/2008 No.963 formed in the very same Sy.No.16/1 of Singasandra Village and that suit is also filed for the relief of permanent injunction. Ex.P.30 is the copy of the written statement filed by the 3rd defendant therein.
33. The defendant relied upon the documentary evidence as per Ex.D.1 to Ex.D.56 and Ex.D.56(a). Ex.D.1 is the death certificate of one Venkatappa, who is said to be the grand father of the defendant, who died on 16.05.1995 at Singasandra Village. Ex.D.2 is the death certificate of Ammayamma @ Munithayamma, who died on 04.03.1999 at Somasundarapalya.
34. Ex.D.3 is an important document relied much by the defendant, which is the certified copy of the alleged Will said to have executed by Venkatappa, the grand father of the defendant on 8.3.1968, wherein, he has bequeathed several properties including the land in question i.e., Sy.No.16/1 in favour of his two daughters i.e., Smt.Munithayamma @ Ammayyamma 33 O.S.6963/2008 and Smt.Munirathnamma @ Chinnamma. For the reasons best known to the defendant, he has not produced the original Will before this Court. As per Ex.D.1 death certificate, Venkatappa died on 16.5.1995. This Will Ex.D.3 was executed on 8.3.1968. This clearly establishes the fact that, Venkatappa was alive as on the date of execution of Ex.P.1 to Ex.P.3, which came to be existence on 19.9.1990, 20.9.1990 and he was alive as on the date of Ex.P.4 Sale Deed, which is dated 17.5.1991. The defendant failed to place any material before the Court to show that, Ex.P.3 GPA was cancelled by the said Venkatappa during his lifetime. On the other hand, Ex.P.3 is an irrevocable GPA dated 20.9.1990. In addition to all these, Ex.D.3 Will is not proved by the defendant as required to be proved under Sec.68 of the Indian Evidence Act.
35. It is also worth to mention at this stage itself that, said Venkatappa bequeathed his property only in favour of his two daughters as stated earlier and 34 O.S.6963/2008 there was no bequeath of any of the properties in favour of the defendant, whose name is shown as Gureddy in Ex.D.3. Even under Ex.D.3 Will, the properties of Venkatappa have been jointly bequeathed in favour of his daughters and there was no mention of separate shares to each of his daughter. Except referring the names of his grand sons, said Venkatappa has not bequeathed any of the properties in favour of his grand sons under Ex.D.3. But, inspite of that, the defendant in this case claims 0-30 guntas of land. How and what basis, he claims 0-30 guntas of land has not been satisfactorily explained by the defendant in his written statement nor in his chief-examination affidavit. It is also worth to mention that, Sy.No.16/1 measuring 1-20 Guntas was bequeathed by Venkatappa in favour of his daughters, in addition to bequeathing other properties as shown in Ex.D.3.
36. Ex.D.4 is the RTC in respect of Sy.No.16/1, wherein, the extent of land is shown as 3-00 acres for 35 O.S.6963/2008 the assessment years 1997-98 to 2000-01 and column No.12(2) is left blank and one A.Krishna Reddy is shown to be the Khathedar of land to an extent of 1-20 guntas. Similarly, defendant Gureddy @ Raju S/o. Narayana Reddy is shown as Khathedar of 1-20 guntas. On what basis and how the name of the defendant has been entered in column No.9 has not been explained by the defendant since no property was bequeathed in his favour by his grand father under Ex.D.3.
37. Ex.D.5 and Ex.D.6 both are RTCs in respect of Sy.No.16/1 measuring 3-00 acres, wherein, defendant Gureddy @ Raju and A.Krishna Reddy are shown to be the cultivators and they are also shown as Khathedars. It appears that, as there was no conversion order of Sy.No.16/1 in 1991, Sy.No.16/1 continued as an agricultural land and said Venkatappa and his daughters sold the revenue sites in favour of the prospective purchasers.
36 O.S.6963/2008
38. Ex.D.7 to Ex.D.9 are the RTCs in respect of Sy.No.16/1, which discloses as if the defendant is the cultivator and khathedar to an extent of 1-00 acre and said A.Krishna Reddy is shown to be the cultivator and khathedar to an extent of 0-01¼ Guntas and one Sonne Gowda is shown as cultivator and khathedar to an extent of 0-20 guntas by virtue of the sale deed dated 26.07.2002.
39. Ex.D.10 to Ex.D.15 are all RTC Extracts in respect of Sy.No.16/1, wherein, the extent of land is shown as 3-00 acres for the assessment years 2005- 06 to 2010-11. A.Krishna Reddy, defendant Gureddy @ Raju and Sonne Gowda are shown to be the cultivators and their names also finds a place in column No.9 as khathedars to an extent shown against their names in ExD.10 to Ex.D.15. In addition to that, an extent of 00-25 guntas is shown as converted for non-agricultural purpose in the name of the defendant Gureddy @ Raju as per M.R.No.21/2005-06.
37 O.S.6963/2008
40. Ex.D.16 is the certified copy of the mutation, wherein, the mutation has been accepted in the name of the defendant to an extent of 1-20 guntas in Sy.No.16/1 as per the Will Ex.D.3. But as per the Will Ex.D.3, no property was bequeathed to the defendant by his grand father Venkatappa.
41. Ex.D.17 is the certified copy of the mutation in MR No.101/2004-05 and this document shown as if C.Sonne Gowda converted 0-20 guntas of land in Sy.No.16/1 for non-agricultural purpose as per the orders passed in proceedings bearing No.ALN/SR/(S) 603/04-05 dated 22.01.2005.
42. Ex.D.18 is the certified copy of the mutation in MR.No.21/2005-06, wherein, the defendant also converted Sy.No.16/1 measuring 0-25 guntas for non-agricultural purpose as per the orders passed by the Spl. Deputy Commissioner bearing No.BDis/ALN/ SR/639/04-05 dated 19.02.2005 permitting the defendant to convert Sy.No.16/1 measuring 0-25 guntas for non-agricultural purpose. Ex.D.19 is the 38 O.S.6963/2008 certified copy of the conversion order dated 19.02.2005 permitting the defendant to convert Sy.No.16/1 measuring 0-25 guntas for non- agricultural purpose.
43. Ex.D.20 is the certified copy of the Nil encumbrance Certificate from 1.4.1985 to 1.10.2001, which shows Sy.No.16/1 is not encumbered in favour of any person for the said period. The total extent of land is shown as 3-00 acres. Ex.D.21 is the certified copy of the Nil encumbrance certificate, which depicts the sale transaction between the defendant and Sonne Gowda on 30.04.2002, which is subsequent to issuance of Nil encumbrance certificate as per Ex.D.20.
44. Ex.D.22 is the certified copy of the mutation, which depicts the sale transaction between Sonne Gowda and M/s.Sambhavi Trade Links as per the sale transaction dated 11.2.2005 and also discloses that, one Chinnamma @ Munirathnamma and Narayana Reddy have consented for the same on 23.06.2005 39 O.S.6963/2008 and also discloses that, the joint development agreement entered into between M/s.Sambhav Trade Links and M/s.N.D.Developers Pvt. Ltd.
45. Ex.P.23 is a Nil encumbrance certificate in respect of Sy.No.16/1 measuring 1-00 acre from 3.8.2008 to 21.6.2011, which shows that, the property was not encumbered for the said period and this document is not in respect of the entire extent of 3-00 acres in Sy.No.16/1 nor in respect of 1-20 guntas of land, which is now claimed by the defendant.
46. Ex.D.24 is an endorsement issued by the office of the Tahsildar on 16.03.2011 stating that, Sy.No.16/1 measuring 3-00 acres, out of which, 1-05 guntas was converted for non-agricultural purpose and accordingly, Khatha was made out in the name of C.Sonne Gowda and Gureddy. It also discloses that, as per the RTCs, the name of A.Krishna Reddy was recorded to an extent of 0-01¼ guntas and the name of Gureddy was recorded to an extent 40 O.S.6963/2008 of 0-15 guntas of land. It further discloses that, no information is available in their office in respect of Khatha No.963. This document was issued from the office of the Tahsildar, but not from the office of BBMP or CMC, Bommanahalli nor Singasandra Grama Panchayath.
47. Ex.D.25 to Ex.D.27 are all tax paid receipts paid by the defendant in respect of Sy.No.16/1 on 30.5.2005, 8.10.2006, 20.11.2009 for the assessment years 2004-05, 2005-06 and 2009-10 respectively.
48. Ex.D.28 and Ex.D.29 are the receipts for having paid the amount towards katha registration fee in respect of Sy.No.16/1.
49. Ex.D.30 and Ex.D.31 are the tax paid receipts paid by the defendant on 5.12.2009 in respect of the property bearing khatha No.712/16/1 for the assessment years 2003-04 to 2007-08 and 2009-10. 41 O.S.6963/2008
50. Ex.D.32 to Ex.D.34 are all tax paid receipts paid by the defendant on 20.11.2009, 30.7.2011 in respect of Sy.No.16/1 for the assessment years 2008-09, 2010-11 and 2011-12.
51. Ex.D.35 is an endorsement issued by BBMP dated 3.12.2009 calling upon the defendant to pay the tax in respect of Sy.No.16/1 and municipal number is shown as 712/16/1. Though, the defendant in his written statement taken a defence contending that, BBMP has no right to issue katha certificate in favour of the plaintiff, but he himself has produced Ex.D.35, which is issued by the very same BBMP calling upon him to pay the taxes.
52. Ex.D.36 is the certified copy of the khatha certificate issued from BBMP for the assessment year 2009-10, wherein, the defendant is shown to be the owner of the property bearing No.712/16/1 measuring 27,225 sq. feet and constructed area is shown as 5,000/- sq. feet.
42 O.S.6963/2008
53. Ex.D.37 is the certified copy of the katha certificate. Katha was recorded in the name of the defendant in respect of the property bearing No.712/Sy.No.16/1.
54. Ex.D.38 to Ex.D.48 are all photographs showing the existing state of affairs at the spot and also shows the existence of a shed. Ex.D.49 is a compact disk of the said photos.
55. Ex.D.50 is the certified copy of the order sheet in O.S.No.9239/01 filed by one Ananthan A.R. against Munithayamma and others, wherein, the present defendant appears to be the 3rd defendant and that suit came to be dismissed for non-prosecution on 27.2.2007. Ex.D.51 is the certified copy of the order sheet in O.S.No.9241/2001 filed by one P.R.Ravindran against Munithayamma and others, wherein also, the present defendant is the 3rd defendant and that suit also came to be dismissed for non-prosecution on 20.07.2007. Ex.D.52 is the certified copy of the order sheet in O.S.No.9242/01 filed by Lohithakshan N.V. 43 O.S.6963/2008 against Munithayamma and others, wherein, the present defendant appears to be the 3rd defendant and that suit also came to be dismissed for non- prosecution on 14.06.2007.
56. So from this, it is crystal clear that, all the said three suits came to be dismissed for non-prosecution. But inspite of that, the defendant in his written arguments projected his case as if all the said three suits came to be dismissed after contest, which appears to be not correct.
57. Ex.D.53 is the certified copy of the sale deed dated 18.4.2002 executed by the defendant in this case in favour of C.Sonne Gowda in respect of the land bearing Sy.No.16/1 measuring 0-20 guntas, wherein, he has given the specific boundaries for 0-20 guntas of land that was sold in favour of Sonne Gowda in the schedule of Ex.P.53.
58. Ex.D.54 is the certified copy of the another sale deed dated 11.2.2005 executed by C.Sonne Gowda in 44 O.S.6963/2008 favour of M/s.Sambhav Trade Links, which is also in respect of very same Sy.No.16/1 measuring 0-20 guntas. The purchaser under Ex.D.53 sold the very same property that he purchased in favour of M/s.Sambhav Trade Links after conversion of said 0-20 guntas of land and that property was sold in favour of M/s.Sambhav Trade Links is shown as 21780 sq. feet.
59. Ex.D.55 is the certified copy of the Joint Development Agreement entered into between the builders i.e., M/s.Sambhav Trade Links with M/s.N.D.Developers Pvt. Ltd., which is also in respect of the very same property that was sold under Ex.D.54.
60. Ex.D.56 is the written statement filed by the defendant in this case and Ex.D.56(a) is the signature of the defendant.
61. The GPA holder of the plaintiff, who is examined in this case as PW.1 has reiterated the plaint averments.
45 O.S.6963/2008
62. PW.1 in his cross-examination denied the suggestion that, under Ex.P.1 to Ex.P.3 the site was not sold in his favour and also denied the suggestion that, the possession of the property was not at all delivered in his favour under Ex.P.1 to Ex.P.3. He also denied the suggestion that, no layout was formed in the said Sy.No.16/1. It is worth to mention that, from the RTC Extract that was produced discloses that, Sy.No.16/1 is an agricultural land, but it appears that, a revenue layout was formed in Sy.No.16/1 by the original owners Venkatappa and his daughters and sold the several sites in favour of the prospective purchasers.
63. PW.1 in the cross-examination admitted that, as on the date of Ex.P.1 to Ex.P.3, the plaint schedule property is a revenue property. He also admitted in his cross-examination that, the property shown in Ex.P.1 to Ex.P.3 pertains to Sy.No.16/1 of Singasandra Village. He denied the suggestion that, there was no nexus between the properties shown in 46 O.S.6963/2008 Ex.P.1 to Ex.P.3 and the property bearing Katha No.963. He also denied the suggestion that, the executants of Ex.P.1 to Ex.P.3 have not affixed their signatures before the notary by confirming the execution of Ex.P.1 to Ex.P.3. He also admitted in the cross-examination that, even in 1991, the property is a revenue site similar to one, which was in 1990. He also stated in his cross-examination that, the schedule property is carved out of Sy.No.16/1 of Singasandra Village. He also denied the suggestion that, Venkatappa has not formed any layout in Sy.No.16/1 and none of the sites have been sold. In my opinion, there is no basis for the defendant to suggest all these for the simple reason that, several site purchasers filed the suit against the vendors including the defendant in this case as per the documents produced by the defendant as per Ex.D.50 to Ex.D.52. He also admitted in his cross-examination that, he does not know when the schedule property comes within the jurisdiction of Bommanahalli CMC. If really, Venkatappa and his daughters have not 47 O.S.6963/2008 executed Ex.P.1 to Ex.P.3 in favour of the alleged vendor of the plaintiff, then there was no impediment for the defendant atleast to issue notice to the concerned denying the execution of Ex.P.1 to Ex.P.3 by the original owner Venkatappa and his daughters. A strange suggestion made in the cross-examination of PW.1 by suggesting that, the property that was registered in the name of PW.1 is not at all in existence in Sy.No.16/1 of Singasandra Village and this suggestion is denied by PW.1 in the cross- examination.
64. The defendant on the other hand filed an affidavit by way of chief-examination affidavit, wherein, he has reiterated the averments of the written statement. He goes to an extent of saying in his chief-examination affidavit that, his grand father Venkatappa during his life time executed a registered Will dated 8.3.1968 in favour of himself and his daughters, who are none other than his mother and step-mother and both are sisters. No such defence is 48 O.S.6963/2008 taken by the defendant in his written statement stating that, the daughters of Venkatappa are the mother and step-mother of DW.1. As discussed earlier, Ex.D.3 Will was executed by Venkatappa on 8.3.1968 only in favour of his two daughters. He goes to an extent of mentioning in his chief- examination affidavit stating that, said Venkatappa as vendor did not execute any agreement of sale nor affidavit to confirm the delivery of possession of the alleged site No.14 carved out of Sy.No.16/1 of Singasandra Village nor executed GPA in favour of P.S.Appu Rao. In my opinion, it is for the owners of the land i.e., Venkatappa and his daughters, who are the competent persons to question Ex.P.1 to Ex.P.3 and it appears that, one of the daughter of Venkatappa is though alive, she has not taken any legal action against P.S.Appu Rao nor the present plaintiff questioning the legality, validity or otherwise of Ex.P.1 to Ex.P.4.
65. DW.1 in his cross-examination for the first time stated that, Venkatappa got 1.20 guntas of land as 49 O.S.6963/2008 per the Court decision, but also stated that, he has no documents with him. He also admitted that, after the partition, Sy.No.16/1 was not phoded. DW.1 in his cross-examination goes to an extent of saying that, the other purchasers of the site in Sy.No.16/1 have not filed any suit against him, but the documents produced by the plaintiff as per Ex.P.19 to Ex.P.24 and Ex.D.50 to Ex.D.52 clearly indicate the fact that, the other purchasers of site in Sy.No.16/1 also filed the suit against the vendors including the present defendant by showing him as the 3rd defendant in the said cases.
66. He specifically admitted in his cross-examination that, out of 3-20 guntas of land in Sy.No.16/1, his grand father has got 1-20 guntas of land (the contents of the alleged Will Ex.D.3 also reveals this aspect). He also admitted that, the remaining land in Sy.No.16/1 was allotted to the share of the younger brother of his grand father, who sold that property in favour of Krishna Reddy. He also admitted that, since 50 O.S.6963/2008 1990 till the death of his grand father, his grand father has paid the tax, but he has no receipts with him. However, DW.1 in the cross-examination admitted that, the husband of the present plaintiff as GPA holder has sold the schedule property in favour of the plaintiff in 1991, but also stated that, he came to know this aspect only after he appeared before the Court. He also admitted in his cross-examination that, khatha was transferred in his name as per the application filed by the defendant dated 18.11.2009.
67. DW.1 in his cross-examination admitted that, Munirathnamma is still alive. Inspite of that, the defendant has not made any efforts to examine said Munirathnamma to show that, with the consent of Munirathnamma only khatha has been transferred in the name of the defendant to an extent of 1-20 guntas of land in Sy.No.16/1. He also admitted in his cross-examination that, he has not verified with the concerned authority about the documents produced by the plaintiff with regard to the correctness or 51 O.S.6963/2008 otherwise of Ex.P.7 to Ex.P.18. But inspite of that, DW.1 goes to an extent of saying that, all those documents are created and concocted. He specifically admitted in his cross-examination that, by imposing condition, khatha was made out in the name of the defendant as per Ex.D.37 and also denied the fact that, he has put up a compound wall in the said survey number including the property of the plaintiff.
68. On perusal of the material available on record, the defendant has not questioned the legality, validity or otherwise of the documents produced by the plaintiff as per Ex.P.1 to Ex.P.4. Admittedly, Ex.P.3 is an irrevocable GPA. The recital of Ex.P.1 agreement of sale dated 19.9.1990 clearly indicate the fact that, the possession of the property was delivered in favour of one P.S.Appu Rao on the same day acting in pursuance of Ex.P.1.
69. It appears that, Venkatappa and his daughters formed the revenue layouts and accordingly, sold the revenue sites to the prospective purchasers without 52 O.S.6963/2008 getting the approved plan from the competent authority and that is the only reason why Sy.No.16/1 continued as an agricultural land in RTCs that are produced. The conversion order has not been obtained by the said Venkatappa and his daughters before selling the said sites in favour of the prospective purchasers.
70. When the defendant denied the very existence of the plaint schedule property in Sy.No.16/1, the burden lies heavily on the plaintiff to establish the same. In my opinion, the plaintiff successfully proved by producing the documents with regard to the existence of plaint schedule property in Sy.No.16/1 of Singasandra Village and also proved the identification of the plaint schedule property by producing the documents. The measurement, description and boundaries shown in the schedule of Ex.P.1 and Ex.P.3 tallies with the particulars of the property shown in the schedule of Ex.P.4 the sale deed. 53 O.S.6963/2008
71. Admittedly, the plaintiff is not examined and her power of attorney holder is examined.
72. Admittedly, the defendant in this case has not questioned the khatha that was made out in the name of the plaintiff before the competent authority particularly the entries in Ex.P.5, Ex.P.6, Ex.P.17 and Ex.P.18.
73. It is worth to mention the conduct of the defendant in this case also. The defendant in the written statement admitted that, he is the grand son of Venkatappa and denied the fact that, he is the son of Munirathnamma @ Chinnamma @ Rathnamma, but he never disclosed in his written statement, the name of his mother.
74. In the written statement filed by the defendant in other cases, he claims the entire extent of 1.20 guntas of land in Sy.No.16/1, but in this case, he claims only 0-30 guntas of land in the very same Sy.No.16/1. In the written statement at para No.10, 54 O.S.6963/2008 he also taken a defence contending that, he has got 0.30 guntas of land and he is in lawful possession and enjoyment of 0-30 guntas of land. Out of which, 0-25 guntas of land is converted for non-agricultural purpose.
75. On perusal of Ex.D.3 Will, Venkatappa bequeathed Sy.No.16/1 measuring 1-20 guntas of land to his both daughters jointly and separate shares were not allotted in favour of his daughters by Venkatappa under Ex.D.3 Will. In Ex.D.3 Will, Venkatappa has got land only to an extent of 1-20 guntas in Sy.No.16/1. Even assuming for a moment that, 0-30 guntas of land was allotted to the mother of the defendant, the Aunt of the defendant has got to her share 0-30 guntas of land in the same Sy.No.16/1. The mother of the defendant is no more. Even assuming that, the defendant succeeded the estate of his mother, it should be for 0-30 guntas of land only, but not for entire 1-20 guntas of land in Sy.No.16/1. The defendant, out of 0-30 guntas of 55 O.S.6963/2008 land, sold 0-20 guntas in the same Sy.No.16/1 in favour of Sonne Gowda as per Ex.D.53 and 0-10 guntas was acquired in the same survey number for formation of road and the RTC entries reveals the said aspect.
76. Very strangely, the defendant got the conversion order in respect of 0-25 guntas in the said Sy.No.16/1 under Ex.D.19. How and when the defendant got said 0-25 guntas of land for the purpose of conversion has not been satisfactorily explained by the defendant in view of the said discussion. So, all these indicate the fact that, the defendant filed the written statement by suppressing the material facts. But inspite of that, the defendant goes to an extent of denying the very existence of the plaint schedule property and also goes to an extent of denying the plaintiff is not in possession of the plaint schedule property.
77. The certified copies of the order sheets of other cases that are produced indicate that, the family 56 O.S.6963/2008 members of the defendant are in the habit of selling the revenue sites and started litigating with the purchasers and accordingly many suits came to be filed against the family members of the defendant including the defendant. The certified copies of the order sheets that are produced in other cases discloses that, those cases came to be dismissed for non-prosecution, but not on merits. The defendant being a the alleged witness to Ex.P.1 and Ex.P.3 goes to an extent of saying that, he has not affixed his signature in Ex.P.1 and Ex.P.3. When such being the case, there was no impediment for the defendant to request this Court to refer the matter to the handwriting expert for comparison of his disputed signatures found in Ex.P.1 and Ex.P.3 with that of his admitted signature found in the written statement Ex.D.56.
78. On careful perusal of the material available on record, the plaintiff was able to establish before the Court only to an extent of her lawful possession of the 57 O.S.6963/2008 plaint schedule property as on the date of the suit, but failed to establish that, she has put up compound wall around the schedule property before filing of the suit and also failed to prove that, the defendant attempted to alienate the plaint schedule property in favour of the third parties.
79. As such, the plaintiff is entitled for the relief of permanent injunction only to an extent of restraining the defendant, his agents and servants from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property.
80. Perused the decision relied upon by the learned counsel for the plaintiff. The ratio and the principles laid down in the decision reported in
1. Special Leave Petition (C) No.13917/2009 decided on 11.10.2011 (AIR 2012 SCC page 206).
2. Civil Appeal No.6191 of 2001 decided on 25.3.2008 (AIR 2008 SC 2033) in the case of Anathula Sudhakar Vs P.Buchi Reddy (Dead) by LRs and others are applicable to the case on hand.
58 O.S.6963/2008
81. The learned counsel for the defendant also relied upon the very same decision reported in AIR 2012 Supreme Court page 206 in the case of Suraj Lamp and Industries Pvt. Ltd., Vs State of Haryana and another.
82. Admittedly, the defendant is not a third party. He claims to be the grand son of Venkatappa, who is the vendor of P.S.Appu Rao, who is the holder of Ex.P.1 to Ex.P.3. When the plaintiff was put in possession of the plaint schedule property by virtue of Ex.P.1, he can make use of Ex.P.1 as a shield to protract his possession. There is no dispute with regard to the settled position of law that, transfer of an immovable property by way of sale can only be by a deed of conveyance i.e., sale deed and in the absence of the deed of conveyance, no right, title or interest in an immovable property can be transferred.
83. By virtue of the GPA and agreement of sale, the said P.S.Appu Rao executed the sale deed in favour of the plaintiff as per Ex.P.4 and by virtue of the sale 59 O.S.6963/2008 deed, the plaintiff put in possession of the plaint schedule property. Ex.P.3 is an irrevocable GPA. No material is placed by the defendant to show that, Ex.P.3 GPA was in fact revoked. In addition to all these, the Hon'ble Supreme Court at para 13 held as follows;
....................... Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee."
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
84. Similarly, the Hon'ble Supreme Court in the said decision at para Nos.17 and 18 held as follows; 60 O.S.6963/2008
17. It has been submitted that making declaration that GPA sales and SA/GPA/WILL transfers are not legally valid modes of transfer is likely to create hardship to a large number of persons who have entered into such transactions and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance. It is also submitted that this decision should be made applicable prospectively to avoid hardship.
18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not 'transfers' or ' sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said 'SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under Section 53A of TP Act."
85. So, in view of the ratio and principles laid down by the Hon'ble Supreme Court in the said decision, the said decision in my humble view will not help the defendant in any way since this is only a suit for permanent injunction and the plaintiff has sought the 61 O.S.6963/2008 assistance of this Court to restrain the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property.
86. Also perused other decisions relied upon by the learned counsel for the defendant and the same, in my humble view will not help the defendant in any way.
87. Hence, on perusal of the material on record, the plaintiff successfully proved that, she is in lawful possession and enjoyment of the plaint schedule property and accordingly, I answer issue No.1 'partly in the affirmative'.
88. Issue No.2: The very nature of the defence of the defendant and the claim of the defendant that, he is the owner of 0-30 guntas of land in Sy.No.16/1 clearly establishes the alleged interference of the defendant and accordingly, I answer issue No.2 'partly in the affirmative'.
62 O.S.6963/2008
89. Issue No.3: The plaintiff failed to place any material before the Court to show that, she has put up compound wall around the plaint schedule property either on purchase of the suit schedule property or at the time before she filing this suit and as such, she is not entitled for the relief of mandatory injunction as prayed for and accordingly, I answer issue No.3 in the 'negative'.
90. Issue No.4: On perusal of the material available on record, the plaintiff proved that, she is in lawful possession of the plaint schedule property as on the date of filing of the suit and proved the alleged interference of the defendant and she is entitled for permanent injunction. Accordingly, I answer issue No.4 'partly in the affirmative'.
91. Issue No.5: In view of my findings on issue Nos.1 to 4, I proceed to pass the following;
ORDER The instant suit filed by the plaintiff against the defendant is partly decreed. No costs.
63 O.S.6963/2008
Permanent injunction is granted in favour of the plaintiff and against the defendant restraining the defendant, his agents, servants or anybody acting on his behalf from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property or making any encroachment of the plaint schedule property as prayed for.
(Dictated to the Stenographer, computerized by her, then corrected, signed and pronounced by me in the Open Court on this the 18th day of January, 2016).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BENGALURU CITY.
ANNEXURE List of witnesses examined for the plaintiffs:
P.W.1: P.S.Appu Rao.
List of documents marked for the plaintiffs:
Ex.P.1: Unregistered Sale agreement dt. 19.9.1990.
Ex.P.1(a): Signature.
Ex.P.2: Affidavit.
Ex.P.3: Irrevocable GPA.
Ex.P.3(a): Signature.
Ex.P.4: Original sale deed dated 17.5.1991.
Ex.P.5: Demand Register Extract.
Ex.P.6: Demand Extract.
Ex.P.7 to Receipts.
Ex.P.10:
Ex.P.11: Assessment extract issued from
Nagarasabha, Bommanahalli
64 O.S.6963/2008
Ex.P.12: Receipt (patta) Book.
Ex.P.13: Betterment charges paid receipt.
Ex.P.14 & Tax paid receipts.
Ex.P.15:
Ex.P.16: Receipt.
Ex.P.17: Khatha Certificate.
Ex.P.18: Khatha Certificate.
Ex.P.19: Certified copy of the plaint in O.S.9241/01
Ex.P.20: Certified copy of the written statement filed
by D3.
Ex.P.21: Certified copy of the plaint in O.S.9239/01
filed by one A.R.Ananthan.
Ex.P.22: Certified copy of the written statement filed
by the D3.
Ex.P.23: Certified copy of the plaint in O.S.9242/01 filed
by one N.V.Lohithakshan.
Ex.P.24: Certified copy of the written statement filed
by the third defendant therein.
Ex.P.25: Certified copy of the NIL Encumbrance
Certificate in respect of site No.14. Ex.P.26: Encumbrance Certificate in respect of site No.13.
Ex.P.27: Encumbrance Certificate in respect of site No.12.
Ex.P.28: Certified copy of the order sheet in O.S.9240/01 filed by Ravunni P.R. against Munithayamma and others.
Ex.P.29: Certified copy of the plaint in O.S.9240/01 filed by P.R.Ravunni.
Ex.P.30: Certified copy of the written statement filed by D3.
List of witnesses examined for the defendants:
DW.1 S.N.Raju.
List of documents marked for the plaintiff:
Ex.D.1 & Death certificates.
Ex.D.2:
Ex.D.3: Registered Will dated 8.3.1968.
Ex.D.4-15: RTCs.
Ex.D.16 to Copies of Mutation.
D.18:
65 O.S.6963/2008
Ex.D.19: Copy of the order of Dist. Commissioner.
Ex.D.20 & Nil encumbrance certificates.
21:
Ex.D.22: Certified copy of the mutation.
Ex.D.23: Nil encumbrance certificate.
Ex.D.24: Endorsement issued by Tahsildar.
Ex.D.25 to Tax paid receipts.
D.34:
Ex.D.35 Khatha Registration certificate.
Ex.D.36 Khatha certificate.
Ex.D.37 Khatha certificate issued by BBMP.
Ex.D.38 to Photos.
D.48
Ex.D.49 CD.
Ex.D.50 Certified copy of the order sheet in
complaint No.9239/2001.
Ex.D.51 Certified copy of the order sheet in
complaint No.9241/2001.
Ex.D.52 Certified copy of the order sheet in
O.S.No.9242/2001.
Ex.D.53 Certified copy of the sale deed dated
18.4.2002.
Ex.D.54 Certified copy of the sale deed dated
11.2.2005.
Ex.D.55 Certified copy of the Joint Development
Agreement.
Ex.D.56 Written Statement.
Ex.D.56(a) Signature of the defendant.
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BENGALURU CITY.