Bangalore District Court
S.Suresh S/O C.Sunder Raj vs ) Smt.Anitha W/O Late on 19 November, 2019
IN THE COURT OF LX ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
(CCH.NO 61)
Present :
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.7144/2017
Dated this the 19th day of November, 2019
Plaintiff: S.Suresh S/o C.Sunder Raj,
Aged about 40 years, R/at
No38, III Floor, I main road,
Ramachandrapuram,
Bengaluru.
-Vs-
[By Sri A.M.Surya Prakash, Adv.]
Defendant: 1) Smt.Anitha W/o late
Rajasekhar, Aged about 52
years.
2) Kum.R.Hemavathi D/o
late Rajasekar, Aged about
23 years.
3) Kum.R.Revathi D/o Late
Rajasekhar, Aged about 21
years,
All are residing at No104, III
Cross, Old Thippasandra,
Bengaluru.
( D1 to D3: Exparte)
2 O.S.No.7144/2017
Date of Institution 23-10-2017
Nature of the suit Injunction Suit.
Date of recording 01/01/2019
of evidence
Date of Judgment 19/11/2019
Total Duration Days Months Years
26 00 02
JUDGMENT
The plaintiff has filed this suit against defendants, seeking relief of Mandatory injunction, directing the defendants to execute the rectification deed to showing the measurement of the property instead of 35 x 13 feet to the correct measurement as showing the rectification deed dt:21/3/2012 showing the correct measurement as 30 x 12 feet.
2. Brief facts of plaintiff's case are as follows:
The plaintiff contended that, he has purchased the suit schedule property from the defendants for valuable sale consideration under the registered sale deed dt:28/10/2011. It is further submitted that, the measurement of the schedule property shown in the 3 O.S.No.7144/2017 schedule to the sale deed is east to west 35 feet and North to South 13 feet. After the purchase of the suit schedule property, the plaintiff applied to the BBMP for transferring the khata of the schedule property to his name and also to collect the property taxes from him for the schedule property. The BBMP has transferred the katha of the schedule property in the name of the plaintiff and also collected the taxes for the schedule property. The measurement shown in the katha by BBMP is East to West 35 feet and North to South 13 feet. It is further contended that, plaintiff has approached the defendants and requested them to rectify the schedule by removing the measurement East to West 35 feet and to as 30 feet since the measurement of the schedule property is only East to West 30 feet only but not 35 feet as mentioned in the sale deed which was executed by the defendants. But inspite of several requests made by the plaintiff on several months, the defendants went on postponing for the execution of rectification deed to 4 O.S.No.7144/2017 correct the measurement of the schedule property whereas on 20/11/2014 the defendants have delivered the rectification deed which was made between the defendant No.1 and her brother in diving the property and in that deed the suit schedule property has come to the share of defendant No.1.
3. It is further stated that, as per schedule B property, the rectification deed, the suit schedule property was allotted to the defendant No.1, whereas the rectification deed is clearly proved that the measurement of schedule property is east to west 30 feet and North to South 13 feet. Thus, once it has come to the knowledge of the defendants, they should have executed the rectification deed in the name of the plaintiff. Recently the plaintiff approached the bank for a loan on the basis of the schedule property. The bank officials have come and measured the schedule property and came to know that, the measurement is only 30 x 13 feet and not 35 x 13 feet. Hence, unless rectification deed is done, they 5 O.S.No.7144/2017 refused to sanction the loan. Inspite of demanding the defendants to execute the rectification deed, they are not coming forward to do so. Hence, the plaintiff decided to file the suit for getting the rectification deed of the suit schedule property in his name from 35 x 13 feet to 30 x 13 feet. The cause of action for the suit arose on the date of sale deed executed by the defendant to the plaintiff on 28/10/2011 in which the measurement is shown as 35 x 13 feet. Hence, plaintiff constrained to file this suit for Mandatory injunction.
4. After filing of this suit, summons duly served on the defendants. But the defendants remained absent before court and accordingly they are placed exparte.
5. In support of his case, plaintiff examined himself as PW1 and got marked documents as per Ex.P1 to 5.
6. Heard the arguments of learned counsel for plaintiff.
6 O.S.No.7144/2017
7. The following points arise for my determination:-
1) Whether the plaintiff is entitled for the relief as sought for?
2) What order or decree?
8. My findings on the above points are as under:
Point No.1: In the Negative
Point No.2: As per final order
9. Point No. 1: Perused the contents of plaint, evidence of PW1 and the contents of Ex.P.1 to 5. It is the specific case of the plaintiff he has purchased the suit schedule property from the defendants for valuable sale consideration under the registered sale deed dt:28/10/2011. It is further submitted that, the measurement of the schedule property shown in the schedule to the sale deed is east to west 35 feet and North to South 13 feet. After the purchase of the suit schedule property, the plaintiff applied to the BBMP for transferring the khata of the schedule property to his 7 O.S.No.7144/2017 name and also to collect the property taxes from him for the schedule property. The BBMP has transferred the katha of the schedule property in the name of the plaintiff and also collected the taxes for the schedule property. The measurement shown in the katha by BBMP is East to West 35 feet and North to South 13 feet. It is further contended that, plaintiff has approached the defendants and requested them to rectify the schedule by removing the measurement East to West 35 feet and to as 30 feet since the measurement of the schedule property is only East to West 30 feet only but not 35 feet as mentioned in the sale deed which was executed by the defendants. But inspite of several requests made by the plaintiff on several months, the defendants went on postponing for the execution of rectification deed to correct the measurement of the schedule property whereas on 20/11/2014 the defendants have delivered the rectification deed which was made between the defendant No.1 and her brother in diving the property 8 O.S.No.7144/2017 and in that deed the suit schedule property has come to the share of defendant No.1.
10. It is further stated that, as per schedule B property, the rectification deed, the suit schedule property was allotted to the defendant No.1, whereas the rectification deed is clearly proved that the measurement of schedule property is east to west 30 feet and North to South 13 feet. Thus, once it has come to the knowledge of the defendants, they should have executed the rectification deed in the name of the plaintiff. Recently the plaintiff approached the bank for a loan on the basis of the schedule property. The bank officials have come and measured the schedule property and came to know that, the measurement is only 30 x 13 feet and not 35 x 13 feet. Hence, unless rectification deed is done, they refused to sanction the loan. Inspite of demanding the defendants to execute the rectification deed, they are not coming forward to do so. Hence, the plaintiff decided to 9 O.S.No.7144/2017 file the suit for getting the rectification deed of the suit schedule property in his name from 35 x 13 feet to 30 x 13 feet.
11. It is relevant to note that, in the present case on hand the plaintiff has sought relief of mandatory injunction seeking direction to execute the rectification deed to showing the measurement of the property instead of 35 x 13 feet to the correct measurement as shown in the rectification deed dt:21/3/2012 showing the correct measurement as 30 x 13 feet. It important to note that, a rectification deed should be executed after mutual consent of all the parties to the main deed. In case some of the parties to the agreement do not agree to such an amendment or rectification of the executed documents, the other party may file a suit before a court under Section 26 of Specific Relief Act 1963. It is also held in Munilal Das v/s Putoli Bala Das, RSA 124/2005, by the Hon'ble Gauhati High Court. Therefore, in the above circumstances, the remedy available to the plaintiff 10 O.S.No.7144/2017 is that, if the defendants have not agreed to execute the rectification deed, the plaintiff has to file a suit u/Sec.26 of Specific Relief Act. In the above circumstances, the suit filed by the plaintiff seeking relief of Mandatory Injunction is not maintainable. Hence, I answer point No.1 in Negative.
12. POINT NO:2:- In view of my findings on point No.1, the suit of the plaintiff is liable to be dismissed as not maintainable and in the result I proceed to pass the following:-
ORDER Suit of the plaintiff is hereby dismissed. No cost.
Draw decree accordingly.
*** (Directly dictated to the stenographer on computer and then corrected and pronounced by me in the open court on this the 19th day of November, 2019) (Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru 11 O.S.No.7144/2017 ANNEXURES
1. List of witnesses examined on behalf of the Plaintiff/s:
PW1 : S.Suresh
2. List of witnesses examined on behalf of the
Defendant/s:
:NIL:
3. List of documents marked on behalf of the
Plaintiff/s:
Ex.P.1 : Absolute sale deed
Ex.P.2 : Rectification deed dt:21.3.2012
Ex.P.3 : Khatha extract
Ex.P.4 : Khatha Certificate.
Ex.P.5 : Encumbrance certificate
4. List of documents marked on behalf of the
defendant/s:
:NIL:
LX Addl.City Civil & Sessions Judge, Bengaluru 12 O.S.No.7144/2017 Judgment pronounced in the open court. Vide separately ORDER Suit of the plaintiff is hereby dismissed.
No cost.
Draw decree accordingly.
(Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru