Bangalore District Court
Smt.Sharadamma vs Sri.Jayaram on 20 January, 2020
IN THE COURT OF XXIV ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.6).
Dated: This the 20th day of January, 2020.
Present:
Smt.Meenaxi M.Bani, B.Com., LL.B.(Spl.)
XXIV Addl. City Civil & Sessions Judge.
Bengaluru.
ORIGINAL SUIT NO.4143 / 2004
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ORIGINAL SUIT NO.2035/ 2006
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ORIGINAL SUIT NO.7646/ 2009
In O.S.4143 /2004
Plaintiff Smt.Sharadamma,
W/o Sri.Venugopal,
Aged about 37 years,
R/at No.18, 6th main road,
Dwarakanagar,
Bangalore-560 085.
By Sri. S.Jayasakthivel, Adv
Vs.
Defendants 1. Sri.Jayaram,
S/o Borayya,
Aged about 40 years,
R/at No.100, Vinayakanagar,
Banashankari I Stage, II Blok,
Bangalore-50.
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2. Smt. B.K.Sharadha,
W/o late Linganna,
Major in age,
Residing at No.1 & 2, 6th main,
Dwarakanagar, Bangalore-85.
By Sri. K.T.Dakappa for D.1, Adv
In O.S. 2035/ 2006
Plaintiff Smt.Sharadamma,
W/o Sri.Venugopal,
Aged about 39 years,
R/at No.18, 6th main road,
Dwarakanagar,
Bangalore-560 085.
By Sri. S.Jayasakthivel, Advocate.
Vs.
Defendants 1. The Commissioner,
Bangalore City Corporation (B.M.P),
Bangalore.
2. Sri.Jayaram,
S/o Boraiah,
Aged about 46 years,
R/at No.100, Vinayakanagara,
Banashankari 1st stage,
Bangalore.
By Sri. K.N.Mohan Rao for D.1,
Sri. K.T.Dakappa for D.2, Adv
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In O.S. 7646/ 2009
Plaintiff Sri. Jayaram
S/o Boraiah,
Aged about 45 years,
R/at No.100, Vinayakanagar,
B.S.K 1st stage, 2nd block
Bangalore-560 050
By Sri. Amit Deshpande, Advocate.
Vs.
Defendant Smt. Sharadamma
W/o Venugopal,
Aged about 43 years,
R/at No.18, 6th main road,
Dwarakanagar, Bangalore-560 085
By Sri. T.S.R, Adv
Date of institution of suit
In O.S.4143/ 2004 16.06.2004
O.S.2035/ 2006 13.03.2006
O.S.7646/ 2009 30.11.2009
Nature of the suit
In O.S.4143/ 2004 Injunction & restitution &
possession
O.S.2035/ 2006 Declaration and Injunction
O.S.7646/ 2009 Injunction
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Date of commencement of 01.12.2009
recording of evidence
Date on which Judgment was 20.01.2020
pronounced
Total duration Days Months Year/s
O.S.No.4143/2004 04 07 15
O.S.No.2035/2006 07 10 13
O.S.No.7646/ 2009 20 01 10
COMMON JUDGMENT
Advocate for plaintiff filed IA No.4 u/s.151 of C.P.C to club
O.S.No.2035/ 2006 and 7646/ 2009 in O.S.4143/ 2004, as the parties
and suit properties involved in these cases are one and the same. IA
No.4 allowed on 06.08.2011 and accordingly O.S.No.2035/ 2006 and
7646/ 2009 are clubbed with O.S.No.4143/ 2004.
1(a): O.S.No.4143/ 2004 filed by plaintiff Smt.Sharadamma
against defendant No.1/ Jayaram (who is plaintiff in O.S.No.7646/
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2009) and Smt.B.K.Sharadha for the relief of permanent injunction and
restitution of the possession of the suit schedule property.
1(b): O.S.No.2035/ 2006 filed by plaintiff Smt.Sharadamma
(plaintiff in O.S.No.4143/ 2004) against the Commissioner, Bangalore
City Corporation, Bangalore and defendant No.2 Jayaram ( defendant
No.1 in O.S.4143/ 2004 declaring that, katha certificate issued by
B.B.M.P is invalid and null and void and Katha certificate dated.
31.12.2001 issued by B.B.M.P in favour of plaintiff is valid etc.
1(c): O.S.No.7646/ 2009 filed by the plaintiff Sri. Jayaram
(who is defendant No.1 in O.S.No.4143/ 2004) against defendant
Smt.Sharadamma (plaintiff in O.S.No.4143/ 2004 and 2035/2006) for
seeking the relief of permanent injunction.
1(d): It is pertinent to note that, on 03.11.2009 the Judgment and
passed in O.S.No.4143/ 2004 by dismissing the plaintiff's case. Hence,
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plaintiff approached the Hon'ble High Court of Karnataka by preferring
R.F.A.No. 1163/ 2009 and the said appeal was allowed by setting aside
the impugned Judgment and remanded the case for disposal. After
affording sufficient opportunity to both the sides, on 06.08.2011 at the
instance of application filed by plaintiff, all these three matters are
clubbed together for recording common evidence in O.S.No.4143/ 2004.
For the sake of convenience, parties in O.S.No.4143/ 2004 are
referred to as plaintiff and defendants hereinafter.
2. Case of plaintiff in O.S.No.4143/ 2004 is as under:-
Plaintiff is the absolute owner in peaceful possession and
enjoyment of the suit schedule property i.e., site Nos. 18 & 19 in Katha
No.86/1, situated at Hosakerehalli, Bangalore South Taluk, Ward No.55
of the City Corporation, measuring east to west : northern side 40 feet,
southern side 40 feet, north to south: eastern side 30 feet and western
side 42 feet as described in schedule.
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2(a) It is averred that, plaintiff is the owner in possession
of suit schedule property as per registered sale deed dated. 19.04.2001
executed by Sri.K.Venugopal in favour of plaintiff. As per sale deed,
Katha certificate issued in her name dated. 31.12.2001 and plaintiff's
vendor paid betterment charges of the suit schedule property to the
Corporation amounting to Rs.15,600/- and plaintiff is in possession and
enjoyment of the suit schedule property and she has paying taxes
regularly. The plaintiff is residing in the suit schedule property in one
square house of A.C.C sheet and she has already put up two shops upon
the vacant land measuring 20 x 30 feet. But to her surprise, the
defendant with his supporters on 10.06.2004 tried to trespass into the
suit schedule property illegally with intention to take forceful
possession over the 2 shops and to dispossess the plaintiff from the
house situated in the suit schedule property. Plaintiff tried to prevent
illegal and unlawful interference with the support of the neighbours.
Defendant is a person of money power and muscle power. Immediately,
the plaintiff's husband went to Girinagar Police Station and lodged
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complaint against the defendant about illegal interference, but police
did not acknowledge the complaint and could not come to help the
plaintiff stating that dispute is civil in nature.
2(b) After amending the plaint, plaintiff sought the relief
of possession of inserting Para No.8(a) contending that, the suit
schedule property forms part of land bearing Sy.No.86/1, situated at
Hosakerehalli village, which was totally measuring 4 acres 18 guntas
and it belonged to one B.T.Kempanna. Said B.T.Kempanna on
11.10.1972 sold the same in favour of his daugther namely
Smt.B.K.Sharada. Said S.K.Sharada after purchasing the property, she
dealt with the same by executing five power of attorneys in respect of
portion of suit schedule property as follows:- on 28.08.1980
Smt.Sharadamma executed power of attorney in favour of
Sri.G.Rangaswamy to the extent of one acre. On 23.10.1980 she
executed power of attorney in favour of G.Rangaswamy to an extent of
35 guntas. On 23.10.1980 she has executed power of attorney in favour
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of Rajanna to an extent of 10 sites, each measuring 30 x 40 feet. On
23.10.1980 she has executed power of attorney in favour to an extent of
5 sites, measuring 30 x 40 feet and on 01.01.1981, she has executed
power of attorney in favour of Shankarappa to an extent of 1 acre 4
guntas. All the five power of attorneys executed by Smt.B.K.Sharada in
favour of G.Rangaswamy, Rajanna, Lankappa and Shankarappa are
registered documents which are coupled with interest. Said
Smt.B.K.Sharada authorized them to deal with the property to an extent
of 3 acres 16 guntas. In the year 1988, Bangalore Development
Authority notified to acquire one acre 22 guntas in Sy.No.86/1 for the
purpose of formation of road. Suit sites Nos.18 and 19 were formed in
the land bearing No.86/1 by Rangaswamy and Shankarappa
respectively. Rangaswamy on 12.08.1992 executed power of attorney
in favour of Venugopal in respect of site No.18, as regards site No.19 is
concerned, it was a site formed by Shankarappa in 1 acre 4 guntas of
land conveyed to him under the power of attorney dated. 05.01.1981 by
Smt.B.K.Sharda. Said Shankarappa on 29.12.1980 sold site No.19 to
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one Smt.Sundaramma by executing sale deed and Katha changed in
the name of Smt.Sundaramma as per M.R.No.28/ 80-81. Said
Smt.Sundaramma on 11.01.1988 executed power of attorney and
agreement in favour of Smt.Jayamma and Smt.Jayamma on the basis of
said document came into possession of site No.9. On 14.02.1994 said
Smt.Jayamma has executed power of attorney in favour of Venugopal
who is husband of plaintiff. Said Venugopal on the basis of General
Power of attorneys dated. 12.08.1992 and 14.02.1994 executed sale
deed in favour of plaintiff on 19.04.2001. On the the day when
Venugopal conveyed the suit property in favour of plaintiff, the Khatha
in respect of site Nos.18 and 19 stood in his name as the Katha holder.
Said Venugopal on 11.12.1997 has remitted a sum of Rs.15,600/- as
betterment charges to the City Corporation authorities. Thereafter,
Sri.Venugopal sold the property in favour of plaintiff under registered
sale deed dated. 19.04.2001. Accordingly, B.B.M.P have entered the
Khata in respect of suit schedule property in the name of plaintiff. The
plaintiff has been in lawful possession of the suit schedule property.
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2(c) Said Sri.Venugopal after obtaining power of
attorneys from Sri.Rangaswamy and Smt.Jayamma entered upon the
property and constructed two shops on the front side and a residential
unit on the hind side and he has let out a shop to one Smt.Rajeshwari to
run a hotel and kept other shop for his business to sell cement. In the
hind portion he has stored jelly, bricks, sand and other building
materials and he has license to deal with the cement in the suit schedule
property. After 19.04.2001, plaintiff has been in lawful possession and
enjoyment of the suit schedule property and Katha entered in her name
and plaintiff taken water connection to the suit schedule property. It is
further averred that, on 03.11.2009 this court by its Judgment and
decree dismissed the suit on a technical ground. As against the same,
the plaintiff has filed a R.F.A.No. 1163/ 2009 before Hon'ble High
Court of Karnataka and said RFA allowed by Hon'ble High Court of
Karnataka by remanding the matter to this court. When things stood
thus, subsequent to Judgment and Decree dated 03.11.2009, defendant
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No.1 filed separate suit against plaintiff before this court in respect of
site Nos.18 and 19, BBMP No.31, Old Municipal No.86/1, measuring
east to west 40 feet and north to south 30' + 40/ feet situated at VI
Main, Dwaraka Nagara, Hosakerehalli, Banashankari II stage,
Bengaluru contending that he has purchased the suit property from
Smt.B.K.Sharada, d/o B.T.Kempanna under sale deed dated.
23.04.2004. Said Smt.B.K.Sharada acquired title to land bearing
Sy.No.86/1, measuring 4 acres 18 guntas under a registered sale deed
dated. 11.10.1972 and as per said sale deed, Katha changed in his name
and he was in possession of the suit schedule property. He has also
taken contention that, suit filed by the plaintiff in O.S.No.4143/ 2004
came to be dismissed on 03.11.2009 despite the fact plaintiff is
interfering with his possession and enjoyment of the suit schedule
property by contending that defendant has approached this court for an
order of perpetual injunction. On 01.12.2009 ex-parte temporary
injunction order granted against the plaintiff. On the basis of interim
order passed by this court, defendant with the help of more than 300
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hired goondas and also by taking the police help, trespassed into the
suit schedule property and dispossessed the plaintiff, threw away all the
articles and materials stored by the plaintiff in the suit schedule
property and demolished the building existed in the suit schedule
property. Though the plaintiff tried to explain the police, but they
helped the defendant stating that there is a court order. Even though law
does not permit to take possession of property without due process of
law. Defendants dispossessed the plaintiff from the suit schedule
property and demolished the structures existed on the same by using
men and muscle power on the basis of interim order. Under these
circumstances, plaintiff entitled for restoration of possession of the suit
schedule property. Hence, prayed to decree the suit.
3. On 26.10.2017 by filing application by the plaintiff got
impleaded Smt.B.K.Sharada as defendant No.2 by amending the plaint.
In pursuance of the suit summons, defendants Nos.1 and 2 have appeared
before the Court through their respective counsels.
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3(a) Defendant No.1 filed written statement by denying the
plaint avernments in Toto. It is denied that, plaintiff is in possession of
suit schedule property and she purchased the suit schedule property under
registered sale deed executed by Sri. K.Venugopal etc., contending that
Sri. K.Venugopal is no way gave any right, title or interest to sell the suit
schedule property. It is denied that, plaintiff is in possession of suit
schedule property and put two shops measuring 20 x 30 feet etc., and also
denied the alleged interference. It is contended that, earlier occasion, the
plaintiff got filed suit through the very same advocate against one
Smt.B.K.Sharada on the same allegation in O.S.No.6795/ 2003 and this
court has issued emergent notice and there afterwards, defendant
B.K.Sharadamma appeared and filed written statement and after the said
date, the very same plaintiff filed a memo for dismissal and accordingly,
the case was dismissed. The plaintiff without disclosing filing of the said
suit, got filed the present suit on the same ground which shows that,
plaintiff has approached the court with unclean hands. But the plaintiff
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through out silent how her vendor derived right to the suit schedule
property. On perusal of the copy of the sale deed which goes to show that,
sale deed relied upon by the plaintiff is a forged and fabricated
document. The sale deed by its reading goes to show that, the plaintiff's
husband was the power of attorney holder of Rangaswamy and
Smt.Jayamma. But, no such power of attorney is produced before this
court. Further from reading of the sale deed, the said special power of
attorney was registered before the Sub-Registrar, Basavanagudi, but the
property never included within the limits of Basavanagudi Sub-Registrar.
The sale deed further goes to show that one Smt.Sundaramma given the
site to Smt.Jayamma and Smt.Jayamma given her power of attorney to
Venugopal, but how the said peoples derives title is silent. It is clear that,
power of attorney holder cannot execute the one more power of attorney.
The power of attorney given to K.Venugopal is void and any document
executed by K.Venugopal is ab-initio void and one without any authority.
The plaintiff who claims right from K.Venugopal under the document
dated. 19.04.2001 will not give any right, title or interest over the suit
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schedule property. Said Sri.Venugopal himself had no right or authority
over the suit schedule property in question so also the said Rangaswamy
and Smt.Jayamma. The plaintiff who is none other than wife of
Sri.Venugopal. Further, said Rangaswamy who claims to be the power of
attorney holder of B.K.Sharada lost his legal battle. Wherein they have no
power Smt.Jayamma or Smt.Sundaramma are utter strangers to the
schedule property. The plaintiff is in possession of the suit schedule
property, so the question of defendant causing illegal and unlawful
activities does not arise.
3(b) It is further contended that by defendant No.1 that, one
Smt.B.K.Sharada w/o of Sri.R.Linganna was the owner of site Nos.18
and 19 in Sy.No.86/1 of Hosakerehalli village. The defendant after
verifying the documents and after taking encumbrance, got purchased site
Nos.18 and 19 from Smt.B.K.Sharada, the real owner of property in
question on 23.04.2004. Smt.B.K.Sharada who was in possession of the
property, delivered taken possession to the defendant and the defendant
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continuous to be in possession of the property and he approached
corporation of Bangalore City by paying betterment charges, taxes etc., to
the Bangalore City Corporation and got assessed the property for tax and
paid taxes and obtained Katha in his name. Defendant is in possession of
the suit schedule property. The plaintiff is nothing to do with the property
in question. The plaintiff in collusion and conspired with the 2 nd
defendant got fabricated the document and registered the alleged sale
deed in favour of his wife, the plaintiff. The alleged sale deed in no way
create right, title and interest or possession to the plaintiff. Hence, prayed
to dismiss the suit.
3(c) After amending the plaint, defendant No.1 filed
additional written statement denying Para No.8(a) of the plaint. The
allegations that Smt.B.K.Sharada executed General Power of Attorney on
28.08.1980 in the name of G.Rangaswamy in respect of 1 acre of land
and also on 23.10.1980 she executed General Power of Attorney in favour
of G.Rangaswamy to the extent of 35 guntas and on 23.10.1980 she
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executed General Power of Attorney in respect of 10 sites each measuring
30 x 40 feet and on 23.10.1980 she executed General Power of Attorney
in respect of 5 sites each measuring 30 x 40 feet and on 05.01.1981 she
further executed General Power of Attorney in favour of Shankarappa to
an extent of 1 acre 4 guntas etc., are all denied. The said power of
attorneys coupled with consideration and Smt.B.K.Sharada authorized
them to deal with the property to an extent of 3 acres 16 guntas etc.,
denied by the plaintiff. It is also denied that, suit sites Nos.18 and 19
were formed in the land in Sy.No.86/1 by Rangaswamy and Shankarappa
and said Rangaswamy executed General Power of Attorney in favour of
Sri.Venugopal on 12.08.1992 in respect of site No.18 and in respect of
site No.19 there was no sites formed by Shankarappa measuring 1 acre 4
guntas of land alleged to be conveyed to him under the power of attorney
dated. 05.01.1981 by Smt.B.K.Sharada and B.K.Sharada sold the site
No.19 to Smt.Sundaramma etc., are all denied. Smt.B.K.Sharadamma has
no right to sell the said site to Smt.Sundaramma does not arise under
M.R. No was made in the name of Sundaramma. Further, it is denied
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that, Smt.Sundaramma executed power of attorney in favour of
Smt.Jayamma on 11.01.1988 and Smt.Jayamma executed General Power
of Attorney on 14.02.1994 in favour of Sri.Venugopal and on the basis of
General Power of Attorneys dated. 12.08.1992 and 14.02.1994 Venugopal
executed sale deed in favour of plaintiff who is his wife on 19.04.2001
are all specifically denied. Defendant No.1 also denied the alleged
interference and Venugopal after the alleged attorney entered the property
and constructed two shops and residential units on the hind sides and let
out a shop to one Smt.Rajeshwari to run a hotel and has kept the other
shop for his cement business are all specifically denied.
3(d) It is the contention of defendant No.1 that, on
03.11.2009 defendant No.1 filed separate suit against plaintiff in respect
of site Nos.18 and 19 on the ground that, he has purchased the property
on 23.04.2004 and in pursuance of the purchase, the B.B.M.P made katha
in his name and he was in possession and enjoyment of the suit schedule
property from the date of purchase. It is further contended that, in spite of
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dismissal of suit, the plaintiff along with rowdy elements made fraudulent
attempt to interfere with the possession of the first defendant. It is
admitted that, ex-parte temporary injunction was granted in favour of
defendant No.1. Further allegations that, plaintiff with the help of more
than 300 goondas as well as police trespassed the suit schedule property
and to dispossess the plaintiff by threw away all the articles and materials
in the suit schedule property and demolished the building existing on the
suit schedule property are denied. The prayer of possession is not
maintainable and court fee paid is not proper. The alleged possession of
the plaintiff, acquisition of title by plaintiff and his husband are denied.
The allegations of plaintiff that defendant is in possession and enjoyment
of the suit schedule property as absolute owner, at no point of time
plaintiff was in possession of any portion of the suit schedule property.
Hence, plaintiff is not entitled for relief of restoration of possession of the
suit schedule property.
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4. The case of the plaintiff in O.S.No.2035/ 2006 is that, she
has filed suit against defendant i.e., Commissioner, Bangalore City
Corporation, Bangalore for declaration declaring that, katha certificate
dated. 20.05.2004 issued by Bangalore Mahanagara Palike is invalid and
null and void and Katha certificate dated. 31.12.2001 issued in favour of
plaintiff as valid etc.
4(a) It is averred in the plaint that, plaintiff is the absolute
owner in peaceful possession and enjoyment of the suit schedule
property as per registered sale deed executed by Sri.K.Venugopal on
19.04.2001. Since the date of said sale deed, the plaintiff along with her
family members residing in the suit schedule property on which the
plaintiff has constructed two commercial shops with one sheet house.
The defendant corporation had issued notice under Section 143 of
K.M.C. Act, 1976, on 10.05.1999. The plaintiff's husband
Sri.Venugopal who was General Power of Attorney holder of one
G.Rangaswamy in respect of site No.18. After purchase of suit site
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No.18 under registered sale deed by the plaintiff from her vendor, the
Corporation has issued Khatha certificate dated. 31.12.2001. The
plaintiff's vendor Venugopal paid betterment charges of Rs.15,600/- on
11.12.1997. The defendant Corporation has collected the taxes from
the plaintiff and from his vendor since 1995 to 2001 up to date. The
plaintiff's husband running a cement shop in the premises of the site
and other one premises has been let out. The plaintiff and her family
members are in possession and enjoyment of the suit schedule property.
4(b) One Sri.Jayaram s/o Boraiah has unlawfully
interfered with plaintiff's possession and enjoyment of the suit
schedule property on 10.06.2004 and tried to dispossess the plaintiff
from the suit schedule property. Therefore, plaintiff has filed suit in
O.S.No.4143/2004 against this defendant No.2 - Jayaram. In the said
suit, said Jayaram has produced list of documents against the
ownership upon the plaintiff's schedule property. Thereafter, the
plaintiff came to know about the illegal and unlawful documents
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obtained from the defendant which will cause serious injury and
irreparable loss if the documents are outstanding against the ownership
of the plaintiff in respect of suit schedule property which has not
questioned or challenged against the authority specifically against the
defendant. The defendant has issued alleged documents produced by
Jayaram i.e., Special notice for assessment issued by BBMP dated.
18.05.2004, Katha certificate dated. 20.05.2004, assessment extract,
receipt for having paid betterment charges dated. 17.05.2004 issued by
BBMP in respect of suit schedule property, tax paid receipts for the
years 2004-05 and 2005-06. The said documents obtained by defendant
Jayaram in respect of suit schedule property is a great fraud against the
lawful ownership of the plaintiff's suit schedule property. The
defendant has illegally mentioned in the tax assessment record as
Corporation Property No.31, in favour of Jayaram for the same suit
schedule property Nos.18 and 19. The defendant has deleted the main
road as 7th and 6th and also mentioned as 6th main road. The documents
connected with the plaintiff's property site Nos.18 and 19 in favour of
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Jayaram who does not have any right, title or interest against the
plaintiff's title towards suit schedule property. The alleged documents
are illegal, created and manufactured documents.
4(c) It is further contended that, defendant has stated as two
different corporation numbers for the same suit schedule property and
defendant shall not create and manipulate the duplicity of the title
deeds in favour of third party Jayaram for the suit schedule property
against the original owner. The defendant has acted unlawfully by
issuing the revenue records in favour of one Jayaram for the suit
schedule property which has caused legal injury and hardship to the
plaintiff's ownership. Hence, plaintiff got issued notice dated.
20.08.2004 against defendant and A.R.O, Bangalore. The defendant by
way of issuing revenue records for two persons for the single property
which will not create any rights to two owners for the single property
which cause irreparable loss to the lawful owners. The cause of action
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arose on 20.05.2004 and tax paid receipts for the years 2004-05 and
2005-06 and other dates. Hence, prayed to decree the suit.
5. Inspite of service of suit summons, defendant No.1 has
appeared before the court through its counsel, During pendency of the
suit, IA No.3 filed by the plaintiff under order 1 Rule 10 of C.P.C to
impleaded proposed defendant Sri. Jayaram as defendant No.2 to the
suit and said application allowed on 06.08.2011 and defendant No.2
filed written statement.
5(a) Defendant No.2 has filed written statement by denying
plaint allegations contending that, suit is not maintainable either in law
or on facts, the plaintiff has no cause of action to file the present suit.
The one alleged is outside the purview of the civil law or the
jurisdiction of this court, as much as there was special statute created
for the purpose and on this ground the suit is liable to be dismissed.
Hence, prays to dismiss the suit.
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6. O.S.No.7646/ 2009 are as follows:- Plaintiff (defendant
No.1 in O.S.No.4143/ 2004 and defendant No.2 in O.S.No.2035/ 2006)
filed case against defendant Smt.Sharadamma (plaintiff in
O.S.No.4143/ 2004 and 2035/2006) seeking for the relief of permanent
injunction restraining the defendant or anybody claiming through or
under her from in anyway interfering with the demolition work of
existing shed and construction of new house in its place as per
sanctioned plan and possession and enjoyment of the suit schedule
property and other reliefs.
6(a) Plaint avernments are as follows:-
The suit schedule properties are bearing Nos.18 and 19 bearing
Khatha No. 86/1/18-19 situated at Hosakerehalli village in ward No.55
which is described in the plaint schedule. Originally suit schedule
property belongs to Sri.B.T.Kempanna. Smt.B.K.Sharada vendor of the
plaintiff purchased the suit schedule property from B.T.Kempanna
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under registered sale deed dt. 11.10.1972 and she was put in
possession and enjoyment of the suit schedule property. Thereafter,
B.K.Sharada sold the suit schedule property to the plaintiff under
registered sale deed dt. 23.04.2004. In pursuance of execution of sale
deed, the plaintiff was put in possession and enjoyment of the suit
schedule property. Since the date of purchase, the plaintiff has been in
lawful possession and enjoyment of the suit schedule property as a
exclusive owner. The suit schedule property was included within the
limits of B.B.M.P an Katha transferred in his name and B.B.M.P
assessed the property by receiving the necessary development and other
charges and taxes. The B.B.M.P while assessing the suit schedule
property, gave the Khata number as 31 and also gave the property
identification number as 55-257-037. The old number of suit schedule
property was 86/1/18 & 19 as suit schedule property was part of land
bearing Sy.No.86/1 of Hosakerehalli village. All these facts are reveals
in Khata certificate and extract. The plaintiff has paid taxes of the suit
schedule property and other charges. The defendant has no manner of
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right, title or interest over the suit schedule property and never in
possession of the suit schedule property. Defendant instituted a false
suit against the vendor of the plaintiff and others in O.S.No.6795/ 2003
for permanent injunction and the said suit dismissed as withdrawn. The
defendant made another futile effort to disturb the peaceful possession
and enjoyment of the suit schedule property by the plaintiff by
instituting the suit for permanent injunction in O.S.No.4143/ 2004. In
the said suit, defendant appeared and contested the matter by filing
detailed written statement and objections to IA No.1 and said suit came
to be dismissed on 03.11.2009. Defendant has no manner of right, title
or interest over the suit schedule property and she has never been in
possession of suit schedule property. When things stood thus, the
plaintiff obtained sanction plan from Assistant Director Town Planning
B.B.M.P, Bangalore for the construction of residential building in the
suit schedule property by demolishing the old two temporary sheds and
plaintiff has stored the cement jelly stones and other building materials
in the suit schedule property. When plaintiff started to demolish work
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of the sheds standing in the suit schedule property, defendant without
any right, title or interest interfered with the demolition an construction
work. The plaintiff being the lawful legitimate rightful absolute owner
of the suit schedule property has every right to enjoy the same without
any obstruction or interference. The defendant unnecessarily without
any right, title or interest in suit schedule property and with a view to
harass the plaintiff in demolition work and construction work. The
plaintiff resisted the illegal act of the defendant with the help of his
friends, but defendant and her men went back claiming that they would
come again to the suit schedule property and they would see that the
plaintiff would not be successful in demolition and construction work.
Hence cause of action arose subsequently on 29.11.2009 when
defendant and her henchmen obstructed the plaintiff in demolition of
construction work. Hence, prayed to decree the suit.
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7. After service of suit summons, defendant appeared
through her counsel and filed detailed written statement by denying
allegations of plaintiff contending that, suit filed by the plaintiff is not
maintainable. It is contended that, plaintiff has purchased the suit
schedule property from Smt.B.K.Sharada, d/o B.T.Kempanna under a
sale deed dated. 23.04.2004 and Katha changed in his name and
plaintiff is in possession of the suit schedule property and alleged
obstruction etc., are all denied. It is contended that, Sy.No.86/1,
measuring 4 acres 18 guntas situated at Hosakerehalli village was the
property of B.T.Kempanna who sold said property in favour of his
daughter by name Smt.B.K.Sharada on 11.10.1972 and she became
absolute owner in possession of the suit schedule property. Said
Smt.B.K.Sharada on 28.08.1980 executed power of attorney in favour
of Sri.G.Rangaswamy to an extent of one acre in Sy.No.86/1 and again
on 23.10.1980 she executed another registered power of attorney in
favour of very G.Ranswamy in respect of 35 guntas of land in land
bearing Sy.No.86/1 of Hosakerehalli. On 05.01.1981 said
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Smt.B.K.Sharada executed power of attorney in favour of Shankarappa
in respect of 1 acre 4 guntas in suit survey. By executing these powers
of attorney Smt.B.K.Sharada has authorized G.Rangaswamy and
Shankarappa to deal with 2 acres 39 guntas of land in Sy.No.86/1. In
the year 1981, one acre 22 guntas in Sy.No.86/1 was acquired by the
Bangalore Development Authority for formation of ring road. In the
year 1981 an extent measuring 17,009 sq. ft. was taken over by the
Government by holding proceedings under the Urban Land Ceiling
Act. When such being the case, she was not holding even an inch of
land in Sy.No.86/1 on 23.04.2004 to sell the same in favour of plaintiff
and plaintiff did not acquire any right, title or interest over the suit
schedule property on the basis of sale deed dated. 23.04.2004 and
alleged sale deed is hallow, shallow and non-est in law.
7(a) It is further contended that, Smt.B.K.Sharada the
vendor of plaintiff had sold 15 sites so formed in Sy.No.86/1 in the year
1981 in favour of Rajanna and Lankappa. So Smt.B.K.Sharada was not
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holding even an inch of land in Sy.No.86/1 as on 23.04.2004. Despite
of that, she executed sale deed in the name of plaintiff in respect of site
Nos.18 and 19, as such said sale deed does in any way create or confer
title on the plaintiff in respect of suit schedule property. Defendant
claims to have acquired right to the property on the basis of sale deed
dated. 19.04.2001 executed by Venugopal who was G.P.A holder of
G.Rangaswamy and Smt.Jayamma. G.Rangawamy was erstwhile
General Power of Attorney holder of Smt.B.K.Sharada in respect of 1
acre 35 guntas of land in Sy.No.86/1 and accordingly, the defendant is
the absolute owner of site Nos.18 and 19 formed in Sy.No.86/1.
G.Rangaswamy after taking two power of attorneys dated. 28.08.1980
and 23.10.1980 from Smt.B.K.Sharada has formed a layout in 1 acre 35
guntas of land in Sy.No.86/1, site No.18 was one such site carved out in
one acre 35 guntas of land in Sy.No.86/1 and put him possession of the
same. Sri.Venugopal on 19.04.2001 on the basis of G.P.A executed sale
deed in respect of site No.18 in favour of defendant. With regard to site
No.18 is concerned, on 05.01.1981 Smt.B.K.Sharada has executed
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General Power of Attorney in favour of Shanakarappa in respect of one
acre 4 guntas of land in Sy.No.86/1. Earlier to 05.01.1981
Sri.Shankarappa had entered into an arrangement with Smt.Sharada to
purchase one acre 4 guntas of land in Sy.No.86/1. On 20.12.1980
Sri.Shankarappa sold site No.19 formed in Sy.No.86/1 in favour of
Smt.Sundaramma. On the basis of sale deed, name of Smt.Sundaramma
mutated in the revenue records and said Smt.Sundaramma came in
possession of site No.19. On 05.01.1981, Smt.B.K.Sharada had
executed G.P.A in favour of Shankarappa, as such sale transaction
dated. 29.12.1980 is protected under Section 43 of the Transfer of
Property Act. Smt.sundaramma on 11.01.1988 executed General Power
of Attorney and agreement of sale in favour of Smt.Jayamma in respect
of site No.19 formed in Sy.No.86/1 and accordingly she came in
possession of site No.19. On 14.02.1994, Smt.Jayamma executed G.P.A
and affidavit in favour of Venugopal by conveying the property in
favour of defendant. On 19.04.2001 on the basis of sale deed,
defendant came into possession of suit survey Nos.18 and 19 and
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collected betterment charges and she has paid taxes and defendant is in
lawful possession of the suit schedule property. B.B.M.P entered name
of defendant on the basis of sale deed dated. 23.04.2004 and
Corporation has committed a mischief in entering the khata of the
property both in the names of plaintiff and the defendant in respect of
the same property.
7(b) It is further contended by defendant No.1 that, the
plaintiff in collusion with City Corporation authorities have obtained
fraudulent khata in his name and Khatha being not a document of title.
In the year 2003, City Corporation Authorities sanctioned the plan in
favour of defendant in respect of property and issued licence to put up
construction on the same. After dismissal of O.S.No.4143/2004, the
defendant filed appeal before Hon'ble High Court of Karnataka in
R.F.A.No. 1161/ 2009 and it is pending for adjudication. The
defendant has constructed two shops on the front side and a residential
unit on the hind side of the suit schedule property and one shop let out
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to a lady by name Smt.Rajeshwari to run a hotel and another shop is
being used by defendant in which she was dealing with cement. The
tenant was paying rent of Rs.3,850/- per month to the defendant. On the
basis of interim order dated. 03.12.2009, the plaintiff and his supporters
with the help of police have physically driven out the defendant and her
tenant from the shops and removed all the articles which were kept in
the shops and the godown on the hind side of the shops. From
03.12.2009, the defendant is on the street, it is because of the interim
order granted on 01.12.2009. The defendant has taken electricity and
water connections to the suit schedule property and also telephone
connection and a licence to deal with cement business by her husband
in the suit schedule property. Hence suit is not maintainable. There is
no cause of action arose for plaintiff. Hence, prays to dismiss the suit.
8. On the basis of above pleadings, my learned predecessor
in-office had framed the following:
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: ISSUES in O.S.4143/ 2004:
1. Does plaintiff prove that she was in lawful
possession of suit schedule property as owner on
the date of suit?
2. Is the alleged interference true?
3. What Decree or Order?
Additional Issues framed on 16.01.2017
1. Whether the plaintiff is entitled for the relief of
permanent injunction as prayed?
2. Whether plaintiff is entitled for restitution as
prayed?
: ISSUES in O.S.2035/ 2006:
1. Whether the plaintiff proves that the Khatha
certificate dated. 20.05.2004 issued by the 1st
defendant in respect of suit schedule property is
invalid, null and void?
2. Whether the suit is not maintainable for not
issuing mandatory notice as required under
Karnataka Municipal Corporation Act?
3. Whether the plaintiff is entitled for the relief
claimed?
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4. What decree or order?
: ISSUES in O.S.7646/ 2009:
1. Whether the plaintiff proves that he was in lawful
possession and enjoyment of suit schedule
property as on the date of suit?
2. Whether the plaintiff further proves that, alleged
interference made by the defendants?
3. Whether the plaintiff is entitled for the relief of
permanent injunction as sought for?
4. What Decree or Order?
9. In order to prove the case, Power of attorney holder of
plaintiff who is her husband Sri.Venugopal examined as Pw.1 and got
marked 89 documents at Exs.P.1 to 89. In spite of providing sufficient
opportunity, Pw.1 has not been cross-examined.
On 16.10.2009, advocate for defendant produced copy of
retirement memo along with postal acknowledgment etc. Inspite of
service of notice, defendant has not chosen to appear before the court
and proceed with the matter. Retirement memo filed by the defendant is
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accepted No oral and documentary evidence adduced on behalf of
defendants side.
10. Heard arguments of learned counsel for plaintiff.
11. My findings on the above Issues are as under:
In O.S.4143/ 2004
Issue No.1 - In the Negative
Issue No.2 - In the Negative
Issue No.3 - As per final order for the following
Additional Issue No.1 - In the Negative
Additional Issue No.2 - In the Negative
In O.S.2035/ 2006
Issue No.1 - In the Negative
Issue No.2 - In the Negative
Issue No.3 - In the Negative
Issue No.4 - As per final order for the following
In O.S.7646/ 2009
Issue No.1 - In the Negative
Issue No.2 - In the Negative
Issue No.3 - In the Negative
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Issue No.4 - As per final order for the following
REASONS
Issue No.1 in all the cases:
12. Since these issues are inter-linked with each other, hence
in order to avoid repetition of facts, I would like to deal with these
issues together for common discussion.
In order to prove plaintiff's case, Power of Attorney holder of
plaintiff in O.S.No.4143/ 2004 and O.S.No.2035/ 2006 who is her
husband Sri.Venugopal examined as Pw.1. Suit property in
O.S.No.4143/ 2004 as shown in the schedule is site Nos.18 and 19 in
Katha No.86/1, situated at Hosakerehalli, Bangalore South Taluk, Ward
No.55, measuring east to west : northern side 40 feet, southern side 40
feet, north to south eastern side 30 feet and western side 42 feet, totally
measuring 1440 sq. feet. Defendant No.1 filed suit in O.S.No.7646/
2009 against plaintiff on 03.11.2009 in respect of same suit properties,.
The boundaries and measurement mentioned in both the suits are one
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and the same. O.S.No.2035/ 2006 filed by plaintiff Smt.Sharadamma
for declartion declaring that, katha certificate issued by B.B.M.P is
invalid and null and void and Katha certificate dated. 31.12.2001 issued
by B.B.M.P in favour of plaintiff is valid.
13. After remand of the matter, Pw.1 filed fresh examination-
in-chief on 22.03.2017. In his examination-in-chief, Pw.1 stated that,
plaintiff is his wife. She is suffering from spondalities of neck and
lower back ache and also with other ailments and unable to come to the
court to give evidence personally, accordingly, on 29.08.2012 she has
executed General Power of Attorney in his favour at Ex.P.65. Pw.1
stated that, he is the absolute owner of suit schedule property.
Originally Sy.No.86/1 of Hosakerehalli village was totally measures 4
acres 18 guntas belonged to one B.T.Kempanna. He sold the same in
favour of his daughter Smt.B.K.Sharada on 11.10.192. Said
Smt.B.K.Sharada after purchase of the property, she dealt with several
power of attorneys i.e., on 28.08.1980 she has executed power of
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attorney in favour of G.Rangaswamy to an extent of one acre, on
23.10.1980 she has executed power of attorney in favour of
G.Rangaswamy to an extent of 35 guntas, on 23.10.1980 she has
executed power of attorney in favour of Rajanna to an extent of 10
sites, each measuring east to west 30 feet and north to south 40 feet, on
23.10.1980 she has executed power of attorney in favour of Lankappa
to an extent of 5 sites, each measuring east to west 30 feet and north to
south 40 feet and on 05.01.1981 she has executed power of attorney in
favour of Shankarappa for an extent of 1 acre 4 guntas. The said five
power of attorneys executed by her are registered documents which are
coupled with interest and she has authorized the above mentioned
persons to deal with the property. In the year 1988, the Bangalore
Development Authority had notified to acquire one acre 22 guntas of
land in Sy.No.86/1, for the purpose of formation of ring road. Site
Nos.18 and 19 formed in land bearing Sy.No.86/1 by Sri.Rangaswamy
and Sri.Shankarappa and they are situated by the side of road. After
taking General Power of Attorneys from Smt.B.K.Sharada,
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Sri.Rangaswamy and Sri. Shankarappa jointed their hands together and
formed a single layout and assigned new numbers to the sites as Nos.18
and 19. Sri.Rangaswamy executed General Power of Attorney on
12.08.1992 in respect of site No.18 and on 29.12.1980 Sri.Shankarappa
sold site No.19 to one Smt.Sundaramma by executing sale deed. On the
basis of sale deed, revenue authorities accepted the Katha in the name
of Smt.Sundaramma and on 11.01.1988 Smt.Sundaramma executed
G.P.A and agreement of sale in favour of Smt.Jayamma and said Smt.
Jayamma on the said document came in possession of site No.19 and
on 14.02.1994 she executed G.P.A in his favour. On the basis of said
G.P.As, dated. 12.08.1992, 14.02.1994 he sold both suit properties in
favour of his wife / plaintiff that is Smt.Sharadamma. Earlier Katha
was standing in his name and after remitted betterment charges he sold
the property in favour of plaintiff and Katha has changed in the name
of plaintiff and she is in lawful possession of suit schedule property etc.
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14. Pw.1 further stated that, at the time of execution of sale
deed dated. 29.12.1980 by Shankarappa in favour of
Smt.H.D.Sundaramma, site bearing No.19 measuring east to west 40
feet and north to south 30 feet. In the year 1988-1989 ring road was
widened and in the process of widening site No.20 in its entirety and a
portion of site No.19 had gone widening of the road, accordingly the
measurement of site No.19 diminished and he executed sale deed in
respect of site Nos.18 and 19 together measuring 40 x 30 feet to 32 +
34/2 feet and North to south 12 feet totally measures 1440 square feet.
Further, Pw.1 stated that, on the date of execution of G.P.A dated.
12.08.1992, by Rangaswamy in favour of Venugopal site No.18
measuring 40 x 30 feet. While executing the G.P.A dated. 12.08.1992,
by mistake he has mentioned the northern boundary of site No.18 as
100 feet road instead of site No.19, measuring east to west 32 + 34/2
and north to south 12 feet etc. It is noticed that, these facts are not
pleaded by plaintiff in plaint. So whatever stated by Pw.1 in his
examination-in-chief without pleading cannot be considered.
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15. Plaintiff is claiming title over the suit schedule property
through sale deed executed by her husband Sri. Venugopal on the basis
of power of attorneys executed to him by Sri. Rangaswamy on
12.08.1992 and Smt.Jayamma on 14.02.1994. Sri.Rangaswamy and
Smt.Jayamma are said to be power of attorney holders of
Smt.B.K.Sharada and Smt.Sundaramma, alleged to have executed
power of attorney on 28.08.1980. The question arises as to whether
power of attornies can execute power of attorney in favour of Pw.1 /
Venugopal who in turn said to be sold alleged plots Nos.18 and 19 in
favour of her wife i.e., plaintiff and whether suit is maintainable etc.
However evidence is adduced and main arguments were heard, said
points can be considered later.
16. It is to be noted that, Pw.1 in his examination-in-chief
affidavit filed on 22.03.2017 i.e., after remanding the matter by Hon'ble
High Court of Karnataka in para-7, he stated that, portion of site
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No.19 had gone for widening of the road and measurement of site
No.19 diminished from 40 x 30 feet to 32 + 34/2 feet and north to south
12 feet. In the year 2000, once again the road widening process had
taken place and major portion of the property has been taken for
widening of the road and only left out small piece of the property
which measures east to west 34 feet on its southern side and north to
south 12 feet on the western side. Upon consideration of the fact on
19.04.2001, he executed sale deed in respect of site Nos.18 and 19
together measuring east to west 40 feet and north to south 30 + 42/2
feet totally measuring 1440 sq.feet in favour of his wife
Smt.Sharadamma. At the time of execution of G.P.A by Rangaswamy
on 12.08.1992 in favour of Venugopal, site bearing No.18 measuring
east to west 40 feet and north to south 30 feet. While executing G.P.A
by Sri.Rangaswamy dated. 12.08.1992 by mistake it is mentioned as
northern boundary of site No.18 as 100 feet road instead of site No.19.
The northern side of site No.18, there exists site No.19 measuring east
to west 32 + 34/2 and north to south 12 feet, but not 100 feet road and
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to the north of site No.18, there exists site No.19 and not 100 feet road
etc. But these facts are not stated in the plaint avernments. Pw.1 in his
examination-in-chief for the fist time stated these facts. No-doubt, in
this case Pw.1 has not been cross-examined by the defendants' side,
since entire burden of proving his case is upon the plaintiff who
approached the court seeking discretionary and equitable relief of
injunction and possession.
17. On going through the documents produced by the plaintiff
which are marked at Exs.P.31 to P.37, which are said to be certified
copy of General Power of Attorney dated. 28.08.1980 said to have
executed by Smt.B.K.Sharadamma d/o late B.T.Kempanna in favour of
Sri.Rangaswamy in respect of Sy.No.86/1, measuring 1 acre and
Ex.P.32 is certified copy of General Power of Attorney dated.
23.10.1980 executed by B.K.Sharadamma in favour of Rangaswamy in
respect of Sy.No.86/1, measuring 35 guntas and Ex.P.35 is certified
copy of Genral Power of Attorney dated. 05.01.1981 executed by
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Smt.B.K.Sharadamma in favour of Sri.Shankarappa in respect of
Sy.No.86/1 to the extent of 1 acre and 4 guntas and Ex.P.36 is sale deed
executed by Shankarappa in favour of Smt.H.D.Sundaramma in respect
of Sy.No.86/1 i.e., suit plot No.19 and Ex.P.37 is certified copy of
General Power of Attorney executed by Sri.G.Rangaswamy in favour
of plaintiff in respect of site plot No.18 and Ex.P.40 is certified copy of
General Power of Attorney and dated.14.02.1994 executed by
Smt.Jayamma in favour of Sri.K.Venugopal in respect of site No.19 etc.
I have perused the above said documents.
18. On going trough the certified copies of the same, it is
noticed that, power of attorneys at Exs.P.30 and 31 is registered. On
going through the Exs.P.31 and P.32, power of attorneys executed by
Smt. B.K.Sharada in favour of Sri.Rangaswamy. There is reference
about the power of attorney is executed in respect of one acre and as
per Ex.P.32 to the extent of 35 guntas. Ex.P.35 is said to be power of
attorney executed by Smt.Sharadamma in favour of Sri.Shankarappa in
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respect of 1 acre of land etc. Though plaintiff stated that, both
Shankarappa and Venugopal formed layout in respect of lands and suit
plot No.19 is falls within the site No.18 etc. Plaintiff has not produced
any materials in this regard. No-doubt plaintiff has produced many
documents i.e., Katha extracts, Katha certificates, tax paid receipts,
water bills etc. since plaintiff's title is clouded on suspicious. These
documents not helpful to the plaintiff's case. Further in Ex.P.37 which
is material document i.e., General Power of Attorney alleged to have
executed by K.Venugopal, who is G.P.A holder of Smt.B.K.Sharada
dated. 12.08.1992, the said document said to have been registered in
Basavanagudi Sub-Registrar. In the written statement, the defendant
taken contention that the property not comes within the limits of
Basavanagudi Sub-Registrar. Plaintiff has not adduced any oral and
documentary evidence to prove that said property comes within
Basavanagudi Sub-Registrar. Further, in this document there is
boundaries towards northern is mentioned in 100 feet road. Therefore,
the case of the plaintiff is that, towards north there is a plot No.19 and
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in the process of road widening, it is diminished etc., doubtful to
accept. Further, Ex.P.67 is power of attorney executed by
Smt.sundaramma in favour of Smt.Jayamma on 11.01.1988 in respect
of Sy.No.86/1 measuring 40 x 30 feet. The plaintiff himself produced
and General Power of Attorney at Ex.P.40 executed by Smt.Jayamma in
favour of Sri.Venugopal / Pw.1 dated. 14.02.1994 in respect of site
No.19, Sy.No.86/1 and the measurement is mentioned as east to west
32 + 34 ½ feet/ 2 and north to south 12 feet. Southern boundary is
shown at site No.18, but in the power of attorney executed by
Sri.Rangaswamy in favour of Pw.2. The northern boundary is shown as
100 feet etc. On the basis of these power of attorneys, plaintiff
executed sale deed in respect of his wife in respect of site Nos.18 and
19 together contending that, some portion of site No.19 acquired by
forming the ring road and its measurement diminished etc. Except the
evidence of affidavit of Pw.1, no further documents produced. Further
more whatever stated in the affidavit are not pleaded in the plaint, so it
cannot be looked into. Further in this case the plaintiff has not
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examined, but Power of attorney Holder got examined as Pw.1. Ex.P.2
alleged sale deed dated. 19.04.2001 said to have executed by Pw.1 in
favour of plaintiff which is registered in sub-registrar office, Kengeri
and there is reference about the alleged power of attorney dated.
12.08.1992 executed by Sri.Rangaswamy which is registered in
Basavanagudi sub-registrar office etc. The measurement mentioned is
40 x 30 feet and with regard to plot No. 19 on the basis of power of
attorney executed by Smt.Jayamma on 14.02.1994 in respect of
measuring east to west 32 + 34 ½ /2 and north to south 12 feet etc and
total extent is 14440 square feet, but there is no base to. Further more,
property is not comes within the limits of Basavanagudi sub-registrar
office. The alleged power of attorney registered in the Sub-Registrar
cannot be looked into. No-doubt plaintiff produced number of
documents which are electricity bills, katha certificates, tax paid
receipts, betterment charges, katha extracts, telephone bills, water bills
etc., same cannot be considered and there is a cloud in the title of the
plaintiff. Further more, the defendant is claiming title over the property.
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He purchased the suit schedule property from Smt.Jayamma executed
by Smt.B.K.Sharadamma under registered sale deed dated. 23.4.2004,
but both the plaintiffs and defendants are claiming the suit schedule
property which are belongs to them. When plaintiff fails to prove that
plot No.18, Sri.Venugopal and and Sharadamma together formed layout
and plot No.18 comes within Sy.No.86/1 and acquired for widening of
road etc., Further the boundaries mentioned in the alleged power of
attorney goes to show that, they mentioned 100 feet road for widening
of plot site No.19.
19. Advocate for plaintiff vehemently argued submitting that, Pw.1
has not been cross-examined. Hence, considering the documents
produced by the plaintiff which are Katha certifies etc, the plaintiff
proves her case etc. But it is pertinent to note that it is for the plaintiff
to prove her case to the satisfaction of the court, plaintiff cannot take
advantage of the same. Further in case of Suraj Lamp & Industries Pvt
Ltd v/s State of Haryana and another reported in 2011 SAR (Civil)
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Hon'ble Apex Court dealt with legality and validity of transactions
under G.P.A held that they does not convey any title or create any
interest in immovable property. Further, it is held that power of
attorney is creating of an agency, whereby the grantee do the acts on
behalf of grantor, even an irrevocable attorney does not have the title
of transferring title to the grantee etc. Considering the facts and
circumstances of the case and in the light of the above decisions I fee,
there is no much discussion needs on this issue. Hence, I answer issue
No.1 in O.S.4143/2004 to be answered in the Negative. The plaintiff in
O.S.No.4143/2004 (who is defendant No.1 in this case) claimed that he
is in lawful possession of suit property as per registered sale deed
dated. 23.04.2004 etc. Inspite of granting opportunity, plaintiff not
examined in this case. In order to prove his case, plaintiffs in the said
case has not placed any oral or documentary evidence.
20. Further Pw.1 has stated that Katha certificate dated.
25.12.2001 issued by 1st defendant in respect of suit schedule property
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is null and void etc. The plaintiff unable to prove title over the suit
schedule property i.e., suit site Nos.18 and 19. On the other hand,
defendant in written statement specifically taken contention that,
defendant purchased the suit schedule property under registered sale
deed from Smt.B.K.Sharadamma d/o late K.T.Kempanna on
23.04.2004 and on the basis of application filed by the defendant No.2,
Katha certificate produced etc. Plaintiff is not entitled for the relief in
this manner, since the relief sought is not comes within the purview of
Section 9 of C.P.C. Further, more absolutely no materials are placed by
the plaintiff. Hence, I am of the opinion that plaintiff in O.S.No.2035/
2006 and O.S.No.7646/ 2009 not proved that issues. Therefore, I am of
the opinion that, issue No.1 in all the cases are to be answered in
Negative and accordingly, same is answered.
21. Additional Issue Nos.1 and 2 in O.S.4143/ 2004:
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Since these issues are inter-linked with each other, hence in order
to avoid repetition of facts, I would like to deal with these issues
together for common discussion.
Plaintiff sought for the relief of restitution of the possession by
amending the plaint inserting para No.8(c). It is averred in para 8(c)
that, Sri. Venugopal/ Pw.1 power of attorney holder of Rangaswamy
constructed two shops on the front side and let out one shop to
Smt.Rajeshwari to run a hotel and kept one shop for his cement
business and plaintiff is in lawful possession etc. After dismissal of suit
on 03.11.2009 on technical grounds, defendant No.1 filed suit in
O.S.No.7646/ 2009 in respect of site Nos.18 and 19 measuring east to
west 40 feet and north to south 30 ' +40 feet under registered sale deed
executed by Smt.B.K.Sharada d/o late B.T.Kempanna dated.
23.04.2004 and obtained ex-parte temporary injunction. On the basis of
order of interim order passed by this court, defendant with the help of
more than 300 hired goondas and also by taking police help,
dispossessed the plaintiff, removed all the articles and materials stored
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by the plaintiff in the suit schedule property and dispossessed the
plaintiff without due process of law and then demolished the building
existing structures by using men and muscle power. Hence, prays for
restitution of suit from the plaintiff etc.
22. Pw.1 in his examination-in-chief stated the same. But
while discussing earlier, it is held that, plaintiff unable top rove title
and possession of suit schedule property. Advocate for plaintiff in
support of his case relied the decisions reported in (1) ILR 1999 KAR
1942, (2) 2003(8) SCC Page 648 and (3) 1997(3) Mah.L.J. Page 437
etc. I have gone through the above cited decisions relied by thethey
does not convey any title or create any interest in immovable property.
Further, it is held that power of attorney is creating of an agency,
whereby the grantee do the acts on behalf of grantor, even an
irrevocable attorney does not have the title of transferring title to the
grantee etc. plaintiff. But same are not applicable to the facts of the
present case on hand.
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23. As could be seen from documents produced by plaintiff,
there is a different between the measurement as mentioned in G.P.A
and sale deed. The defendant No.1 is specifically denied alleged sale
deed of plaintiff by taking various contentions in the written statement.
It is pertinent to note that, the plaintiff has not sought declaratory relief,
but he sought for the relief of permanent injunction and for possession
etc. In the decision of Hon'ble Supreme Court in case of Anathula
Sudhakar v/s P.Buchi Reddy (dead) by legal representatives and others
reported in AIR 2008 SC 2033, held that: "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. As a suit for injunction simplicitor is concerned
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only with possession, normally the issue of title will not be directly and
substantially in issue. The prayer for injunction will be decided with
reference to the finding of the possession. But in cases where de jure
possession has to be established on the basis of title to the property, as
in the case of vacant sites, the issue of title may directly and
substantially arise for consideration, as without a finding thereon, it
will not be possible to decide the issue of possession. But in case where
de jure possession has to be established on the basis of title of the
property, as in the case of vacant sites, issue of title may directly or
substantially arise for consideration, as without a finding thereon, it
will not be possible to decide issue of possession. The plaintiff ought to
have sought the relief of comprehensive suit for declaration of title".
The said decision is aptly applicable in this case, since defendants have
denied plaintiff's title over the suit schedule property. Hence prayer for
injunction will be decided with regard to the finding on possession. In
cases where de jure possession has to be established on the basis of title
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of the property. The principles enunciated in the above said decision is
aptly applicable to the present case on hand.
24. The plaintiff produced certified copy of deposition of
Smt.B.K.Sharada in O.S.No.7028/ 1996 filed by one Sri.T.Narayana
against Smt.Vijayamma and others and also Judgment and decree in the
said case at Exs.P.85 and 86, wherein erstwhile owner
Smt.B.K.Sharada examined as Pw.1 and in her examination-in-chief
she stated that, she has not executed power of attorney in favour of
Sri.Shankarappa and she did not go to Basavanagudi Sub-Registrar's
office etc. The G.P.A alleged to have executed in favour of
Sri.Rangaswamy and Sri.Shankarappa to the extent of land remains,
but as stated that plaintiff has not placed any authenticated documents
to show that Rangaswamy and Shankarappa formed layout together and
plot No.18 comes within the land of Rangaswamy and plot No.19
comes within the land of Shankarappa and some portions of plot No.19
acquired for formation of widening of road, its size diminish etc.
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Further case of plaintiff's is that, after obtaining power of attorney
plaintiffs have constructed two shops on the front side and let out one
shop to Smt.Rajeshwari to run a hotel etc. But plaintiff has not
examined said tenant i.e., Smt.Rajeshwari and further she produced
some documents for taken the electricity and water connections etc and
also tax paid receipts. The said documents not helpful to the plaintiff's
case since plaintiff has not established title and possession over the
suit schedule property. It is admitted by plaintiff in O.S.No.2035/ 2006
that, Katha changed in the name of defendant No.1. Considering over
all materials and documentary evidence available on record, I am of the
opinion that plaintiff unable to prove defendant forcibly taken
possession etc., Hence plaintiff is not entitled the relief of restitution of
possession of the suit schedule property. Therefore, issues under
consideration are answered in the Negative and accordingly, additional
issue Nos.1 and 2 are answered in the Negative.
25. Issue Nos.2 and 3 in O.S.No.2035/ 2006:- The plaintiff
has filed suit for the relief of declaration of Katha certificate issued by
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B.B.M.P is invalid and null and void and Katha certificate dated.
31.12.2001 issued by B.B.M.P in favour of plaintiff is valid etc. The
relief prayed by plaintiff are not granted by this court. Further more
prior to filing of suit plaintiff not issued legal notice. Therefore, suit is
not maintainable. Hence no discussions is needed in this regard.
Hence, I answer these issues in the Negative.
26. Issue No.2 in O.S.4143/ 2004 and issue Nos.2 and 3 in
O.S.No.7646/ 2009:-
While discussing earlier issues, it is held that, plaintiff in
O.S.No.4143/ 2004 not able to prove his case by negativing all issues.
Plaintiff in O.S.No.7646/ 2009 and defendant in O.S.No.4143/2004
though afford sufficient opportunity has not come forward to prove her
case and not placed any cogent oral and documentary evidence. Hence,
I answer these issues in the Negative and accordingly issues are
answered in the Negative.
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27. Issue No.3 in O.S.4143/ 2004 and issue Nos.4 in
O.S.No.2035/ 2006 and O.S.No.7646/ 2009:- As per above
discussions made supra, plaintiffs in all the cases are not entitled for the
relief sought for. In the result, I proceed to pass the following:
ORDER
Suit filed by the plaintiff in O.S.No.4143/2004 for the relief of permanent injunction and restitution of the possession of the suit schedule property is hereby dismissed.
Suit filed by the plaintiff in O.S.No.2035/ 2006 for declaration is hereby dismissed.
Suit filed by the plaintiff in O.S.No.7646/ 2009 for the relief of permanent injunction is hereby dismissed.
Keep the original copy of this common Judgment in O.S.No.4143/ 2004 and copies thereon kept in O.S.No.2035/ 2006 and O.S.7646/ 2009.
(Dictated to the Judgment Writer transcribed and typed by her and after corrections pronounced by me in Open Court on this the 20th day of January, 2020) 62 O.S.4143/ 2004 C/w O.S.2035/ 2006 C/w O.S.7646/ 2009 (Meenaxi M.Bani) XXIV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
Pw.1 Venugopal List of documents exhibited for the plaintiff:
Ex.P.1 Power of attorney Ex.P.2 Sale deed dated.19.4.2001 Ex.P.3 Notice issued by BBMP Ex.P.4 Khata certificate Exs.P.5,6 Tax paid receipts Ex.P.7 Betterment charges receipt Ex.P.8 Possession certificate Ex.P.9 Electricity bill Ex.P.10 Approved plan Ex.P.11 Encumbrance certificate Ex.P.12 Endorsement Ex.P.13 Bank statement Exs.P.14 to Electricity bills 17 Exs.P.18 to Water bills 21 Exs.P.22 to Photographs 27 Ex.P.28 C.D 63 O.S.4143/ 2004 C/w O.S.2035/ 2006 C/w O.S.7646/ 2009 Exs.P.29, 30 Voter I.D.cards Ex.P.31 C/c of GPA dt. 20.8.1980 Exs.P.32 to C/c of GPA's 35 Ex.P.36 Sale deed dt.29.12.1996 Ex.P.37 GPA Ex.P.38 Mutation extract Ex.P.39 Tax paid receipt Ex.P.40 G.P.A Ex.P.41 Acknowledgment issued by BBMP Ex.P.42 Khata certificate Ex.P.43 Sanctioned plan Ex.P.44 Tax paid receipt Exs.P.45, 46 License Ex.P.47 Office copy of letter Ex.P.48 Khata certificate Ex.P.49 Khata extract Ex.P.50 Work order Ex.P.51 Receipt Ex.P.52 Endorsement issued by KPTCL Ex.P.53 to 56 Electricity bills Ex.P.57 Application filed before BWSSB Ex.P.58 Water bills Ex.P.59 Registration card Ex.P.60 Three telephone bills Ex.P.61 16 bills towards material purchase Ex.P.62 to 64 Tax paid receipts Ex.P.65 Power of attorney Ex.P.66 Medical certificate Ex.P.67 GPA Ex.P.68 Bank statement Ex.P.69 Notice dated. 19.10.2010 Ex.P.70,71 Encumbrance certificates 64 O.S.4143/ 2004 C/w O.S.2035/ 2006 C/w O.S.7646/ 2009 Ex.P.72 to 84 Tax paid receipts Ex.P.85 Certified copy of deposition of B.K.Sharada in O.S.7028/ 1996 Ex.P.86 C/c of Judgment and decree dated. 7.1.2017 in O.S.2842/ 1999 Ex.P.87 to 89 Certified copies of three sale deeds Exs.P.87(a) Typed copies of the same to 89(a) (Meenaxi M.Bani) XXIV Addl. City Civil & Sessions Judge, Bengaluru.