Bangalore District Court
Lakshmi Bai vs Dinesh Kumar on 7 April, 2021
IN THE COURT OF XLIV ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-45)
Dated this the 7th day of April, 2021
PRESENT: Smt.Sudha Seturam Onkar,
B.Com. LLM.,
XLIV Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.9147/2014
PLAINTIFFS : 1. Lakshmi Bai
W/o. Late. Venkatusa,
Major,
2. D.V.Govinda Raju
S/o. Late. Venkatusa,
Major,
3. D.V. Govardhan
S/o. Venkatusa,
Major,
4. D.V. Sunitha
D/o. Venkatusa,
Major,
5. D.V. Kamal
S/o. Venkatusa,
Major,
All are R/at. No.98/1,
Ramanjaneya Road,
Hanumanthanagar,
Bengaluru - 560019.
(By Sri.Sreekant Rao L. Advocate)
2 O.S.No.9147/2014
Vs.
DEFENDANTS : 1. Dinesh Kumar
S/o. Bhawarlal,
Major
(Abated)
2. Anitha Devi
W/o. Dinesh Kumar,
Major,
R/at. No.6/1, 8th Cross,
Mariyappanapalya,
Magadi Road,
Bangalore - 560 023.
(D.2 By Sri.S.V.Manjunatha, Advocate)
***
Date of Institution of suit : 26.11.2014
Nature of suit : Injunction Suit.
Date of recording of evidence: 27.05.2019
Date of Judgment : 07.04.2021
Total Duration : Year/s Month/s Day/s.
6 4 11
J UD GM E N T
This suit is filed for permanent injunction.
2. The facts of plaintiffs case in brief are as under;
The plaintiffs are absolute owners in possession and
enjoyment of suit schedule property. The husband of
3 O.S.No.9147/2014
plaintiff No.1 and father of plaintiff Nos.2 to 5 by name
Venkatusa was absolute owner in possession and
enjoyment of suit schedule property. Sri. Venkatusa
purchased site under registered sale deed dated
20.12.1963 and constructed shed therein. The same shed
is described in suit schedule. During his lifetime,
Venkatusa was in possession and enjoyment of suit
schedule property along with his family. The Bengaluru
City Corporation did not effect khata in the name of
Venkatusa in respect of suit shed. For this reason, he filed
suit in O.S.No.6866/1992 before City Civil Court against
Bengaluru City Corporation, praying the court to direct
Bengaluru City Corporation to effect khata in respect of
suit schedule shed. During pendency of this suit,
Venkatusa died leaving behind him plaintiffs as his legal
heirs. The plaintiffs were brought on record in the said
suit. The suit in O.S.No.6866/1992 decreed as prayed and
Bengaluru City Corporation complied with the decree and
effected khata in respect of suit shed in the name of
plaintiff No.1 with consent of other plaintiffs. Since then,
the plaintiffs have been paying tax in respect of suit shed
4 O.S.No.9147/2014
regularly to the BBMP. These being the facts, on
10.11.2014, the plaintiffs were cleaning the suit schedule
property with intention to develop their property. At that
time, the defendants came and interfered with plaintiffs
peaceful possession and enjoyment of suit schedule
property. The defendants have no manner of right, title,
interest over suit shed. In spite of it, the defendants are
illegally interfering with plaintiffs possession and
enjoyment of suit shed. Hence, this suit. The plaintiffs
have prayed to grant permanent injunction against
defendants restraining them from interfering with plaintiffs
peaceful possession and enjoyment of suit schedule
property.
3. After service of summons, the defendants have
appeared before this court through their advocate and filed
written statement. The facts pleaded by defendants in
written statement are as under;
The suit is not maintainable. The averments of the
plaint are all false. The suit schedule property is not in
existence. The suit filed for injunction simplicitor is not
5 O.S.No.9147/2014
sustainable without seeking relief of declaration. It is false
to say that the husband of plaintiff No.1 and father of
plaintiff Nos.2 to 5 purchased site through registered sale
deed dated 20.12.1963 and he constructed suit shed
therein. Neither plaintiffs nor their predecessors in title
were in possession and enjoyment of suit schedule
property at any point of time. The suit filed against
Bengaluru City Corporation was a collusive suit. The
defendants are absolute owners in possession and
enjoyment of immovable property bearing new Municipal
No.5, PID No.32-22-5 situated at 15th Cross Road,,
Bhuvaneshwari Nagar, BBMP Ward No.32, measuring East
to West 50 Feet and North to South 40 feet. The
defendants purchased this property from legal heirs of one
K.N.Purushotham for valuable consideration through
registered sale deed dated 9.9.2011. Since then the
defendants are absolute owners in peaceful possession and
enjoyment of suit schedule property and the defendants
have described the property purchased under sale deed
dated 9.9.2011 in their written statement schedule. The
plaintiffs have no manner of right, title, interest over
6 O.S.No.9147/2014
written statement schedule property. The plaintiffs are
illegally claiming that they are in possession of suit
schedule property. In fact, the suit schedule property is
not in existence. The property being claimed by plaintiffs
is written statement schedule property owned and
possessed by defendants. The defendants are absolute
owners in peaceful possession and enjoyment of written
statement schedule property and have been paying tax to
BBMP regularly. In fact, the written statement property
was situating on the northern side of site No.2 situated
near Jodi Kempapura Agrahara, Kasaba Hobli, Bangalore
Taluk. Site No.2 was owned by one Mariyappa. The said
Mariyappa sold site No.2 and the adjacent northern
property under two separate sale deeds in favour of one
Munirathnam Naidu on 14.11.1959 and 28.8.1969
respectively. Thereafter, legal heirs of Munirathnam Naidu
sold these two sites in favour of one Sri.
B.Hanumantharayappa. Thereafter, Sri.B.Hanumantharayappa
sold both sites in favour of one K.V. Narayanappa who was
ancestor of vendors of defendant. Thereafter, the written
statement schedule property was fallen to the share of
7 O.S.No.9147/2014
K.N.Purushotham, who was the husband of first vendor
and father of other vendors of defendants. Therefore, the
defendants acquired valid title to the written statement
schedule property through registered sale deed. Now, the
plaintiffs with intention to grab written statement schedule
property have filed this false suit. The suit schedule
property is not in existence and it is not in possession and
enjoyment of plaintiffs. The alleged interference is false.
On these grounds, the defendants have prayed to dismiss
the suit.
4. On the basis of above pleadings, the following
issues were framed.
I SSU E S
1. Whether the plaintiffs prove their lawful
possession over the suit schedule property
as on the date suit?
2. Whether the plaintiffs prove that the
defendants have attempted to interfere with
their peaceful possession and enjoyment of
the suit schedule property as pleaded?
3. Whether the plaintiff is entitle for the relief
as prayed for?
4. What Order or decree?
8 O.S.No.9147/2014
5. During pendency of this suit, defendant No.1
died. Therefore, suit against defendant No.1 is abated.
6. To prove their case, plaintiff No.3 deposed
before this court as PW.1 and got marked Ex.P.1 to 7.
Naresh Kumar, Special Power of Attorney holder of
defendant No.2 deposed before the court as DW.1 and got
marked Ex.D.1 to D.19.
7. The plaintiffs have filed written arguments.
Heard arguments of both sides. Perused materials
available on record.
8. For the reasons stated below, the above issues
are answered as under ;
Issue No.1: In Negative.
Issue No.2 : In Negative.
Issue No.3 : In Negative.
Issue No.4 : As per final order,
for the following;
R E A S ON S
9. Issue Nos.1 to 3: To avoid repetition in
discussion, these issues are taken up together for
consideration.
9 O.S.No.9147/2014
This suit is filed for permanent injunction on the
ground that the plaintiffs are absolute owners in peaceful
possession and enjoyment of shed described in suit
schedule. The plaintiffs have pleaded that the husband of
plaintiff No.1 and father of plaintiff Nos.2 to 5 by name
Venkatusa purchased site under registered sale deed dated
20.12.1963 and put up suit shed therein. The shed
constructed by Venkatusa is described in suit schedule.
The khata of suit schedule property is standing in the
name of plaintiffs and they have been paying taxes in
respect of suit shed to BBMP regularly. The plaintiffs have
alleged that the defendants are interfering with plaintiffs
possession and enjoyment of suit schedule property
without right, title, interest over suit schedule property.
10. The defendants have denied case of plaintiffs
and contended that suit shed is not in existence. The
plaintiffs are claiming property bearing New Municipal
No.5, PID No.32-22-5 situated at 15 th Cross Road,
Bhuvaneshwari Nagar, BBMP Ward No.32, measuring East
to West 50 feet, North to South 40 feet, bounded by East -
10 O.S.No.9147/2014
15th Cross Road, West-Conservancy, North-Property of one
Sri.Chandrakantha, South-Property of one Varalakshmi.
This property is owned and possessed by defendants. The
plaintiff described the defendants property in suit schedule
by mentioning wrong khata number and description.
11. To prove their case, plaintiff No.3 deposed
before this court as PW.1 in support of plaint averments
and got marked original sale deed dated 20.12.1963
executed in the name of his father Vankatusa and also
produced khata extract and tax paid receipts of suit
schedule property.
12. This suit is filed for permanent injunction.
Therefore, the plaintiffs require to establish their peaceful
possession over suit schedule property as on date of suit.
In this case, the defendants not only denied the possession
of plaintiffs over suit schedule property but also denied
existence of suit schedule property. Therefore, the
plaintiffs require to prove existence of suit schedule
property and also prove their possession of suit schedule
property.
11 O.S.No.9147/2014
13. The plaintiffs have pleaded that the suit
property as shed bearing No.6, situated at 15 th Cross Road,
Bhuvaneshwari Nagar, Bengaluru measuring East to West
15 feet, North to South 20 feet with PID No.32-22-6
bounded by East - 8th Cross Magadi Road, West- Private
Property, South - Property of Munirathnam Naidu, North -
Private property. Careful perusal of Ex.P.1 shows that the
site covered under Ex.P.1 is described as site measuring
East to West 15 feet, North to South 20 feet which is part
of land situating on West of Magadi Road 8 th Cross situated
at Kempapura Agrahara bounded by East - Magadi Road
8th Cross, West - Residential house owned by vendor, North
- Road, South - property of Munirathnam Naidu.
14. Careful perusal of boundaries of the property
covered under sale deed dated 20.12.1963 shows that
same do not match with the boundaries pleaded by
plaintiffs in suit schedule. It is the specific case of plaintiffs
that Sri. Vankatusa constructed suit shed in the property
purchased by him under registered sale deed dated
20.12.1963. Whereas, the plaintiffs have not mentioned
12 O.S.No.9147/2014
the boundaries shown in Ex.P.1 in their suit schedule.
From this, it is clear that there is discrepancies in oral and
documentary evidence in respect of identification of suit
properties.
15. Apart from above, PW.1 in his cross-
examination deposed that "I do not know in which cross
the property was situated when my father had purchased
the suit property. When I saw the property at first time, it
was in 8th cross. Today also it is situated in 8 th Cross."
From this portion of oral evidence of PW.1, it is clear that
the property of plaintiffs i.e., the property purchased by
Venkatusa is existing at 8th Cross of Bhuvaneshwari Nagar.
Whereas, the plaintiffs have pleaded in their plaint that the
suit shed is situating at 15th Cross Road of Bhuvaneshwari
Nagar, Bengaluru. From this it is clear that the plaintiffs
are not firm where exactly their property is situating.
Therefore, it is opined that the plaintiffs have failed to
prove existence of suit shed and also failed to prove
possession of plaintiffs over suit shed.
13 O.S.No.9147/2014
16. On the other hand, to prove their case, the
defendants have produced the sale deed executed in their
favour in respect of written statement schedule property
and also produced sale deeds of their predecessors in title.
It is clear from perusal of these sale deeds that the
property purchased by defendants described in written
statement schedule is situating on northern side of site
No.2 owned by original owner of site No.2 by name
Mariyappa. It is further clear from perusal of their sale
deeds that the said Mariyappa sold both site No.2 and
northern adjacent site to one Munirathnam Naidu.
Thereafter, both sites came to Munirathnam Naidu and he
in turn sold same to one Hanumantharayappa and
thereafter, these properties came to the defendants. PW.1
in his cross-examination admitted that the property of
defendants is situating on adjacent to the suit shed. But it
is clear from perusal of pleadings of the plaintiffs that they
have not disclosed this fact in their plaint. However,
careful perusal of Ex.P.1 sale deed shows that the property
of one Munirathnam Naidu was situating on south of
property purchased by father of PW.1 Venkatusa, but the
14 O.S.No.9147/2014
plaintiffs have not disclosed these facts in their plaint for
the reasons best known to them.
17. From above circumstances, it appears that the
defendants are owners of property situating adjacent to
suit property. But the plaintiffs have suppressed this fact.
The defendants have taken contention that the suit
schedule property is not in existence and the plaintiffs are
claiming title and possession over property owned by
defendants described in written statement schedule. From
this it is clear that the defendants have raised genuine
dispute in respect of title of the plaintiffs over suit
schedule property. It is well settled principles of law that,
when the defendants raise genuine dispute in respect of
title of plaintiffs over suit schedule property, then no
permanent injunction can be issued. In this case,
identification of suit shed is in dispute. The plaintiffs
failed to establish identification of suit property and their
possession over same. The plaintiffs have not pleaded
material facts. Under these circumstances, the suit for
bare injunction is not maintainable and the plaintiffs are
15 O.S.No.9147/2014
required to file a comprehensive suit for declaration of their
title. Therefore, it is opined that the suit filed by the
plaintiffs for injunction simplicitor is not maintainable.
18. For the reasons, stated above, it is opined that
the plaintiffs have failed to prove their possession over suit
schedule property within the boundaries described by
them in suit schedule property. Further, the plaintiffs
have also failed to prove interference from defendants. The
genuine dispute raised by defendants being adjacent
owners of property as admitted by PW.1 in cross-
examination cannot be termed as interference. The
defendants have successfully raised cloud on the title of
the plaintiffs. Therefore, it is opined that the suit of the
plaintiffs is not maintainable. Hence, plaintiffs are not
entitled for reliefs claimed. For these reasons, Issue Nos.1
to 3 are answered in Negative.
19. Issue No.4: I pass following;
16 O.S.No.9147/2014
ORDER
Suit is dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerised by her, the same is corrected and then pronounced in the open court on this the 7th day of April, 2021).
(Smt. Sudha Seturam Onkar) XLIV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PLAINTIFF/S:
PW.1 : D.V.Govardhan
2. LIST OF WITNESSES EXAMINED FOR DEFENDANT/S DW.1 : Naresh Kumar.
3. LIST OF DOCUMENTS MARKED FOR OF PLAINTIFF/S. Ex.P.1 : Original registered sale deed Ex.P.2, 3 : C/c. Of Judgment and decree in O.S.6866/1992 Ex.P.4-7 : Khata Certificate, Khata Extract & Tax Paid Receipts.
4. LIST OF DOCUMENTS MARKED FOR DEFENDANT/S. Ex.D.1 : Special Power of Attoney. Ex.D.2 : Registered original sale deed dated 17.11.54.
Ex.D.3 : Original sale deed dated 14.11.1959. Ex.D.4 : Original sale deed dated 28.8.1969. Ex.D.5 : Original sale deed dated 24.1.1972. Ex.D.6 : Original sale deed dated 24.11.1984 17 O.S.No.9147/2014 Ex.D.7 : Original registered Will dt.4.4.1994. Ex.D.8 : Original Sale deed dated 9.9.2011 Ex.D.9 : Extract Mutation Register dated 24.10.1998. Ex.D.10 : Extract of property tax register. Ex.D.11-14 : C/c. Of encumbrance certificates from 1953 to 2010-11 Ex.D.15 : Khata Extract Ex.D.16 : Khata Certificate. Ex.D.17 : Receipt for payment of revenue.
Ex.D.18 : Khata Extract. Ex.D.19 : Tax paid Receipt.
XLIV Addl. City Civil & Sessions Judge, Bengaluru.
*pst/-