Bangalore District Court
Sri.M.Ananda Raju vs Sri.N.K.Matadaiajh @ on 4 August, 2016
IN THE COURT OF THE VII.ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH.No.19)
Dated: This the 4th Day of August 2016
Present: Sri.K.L.Ashok, B.Com., LL.B.,
VII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.NO.3706/1998
Plaintiff: Sri.M.Ananda Raju,
S/o Late Muniswamy Raju,
Aged about 55 years,
R/a New No.51/1,
Old Post Office Road,
Krishnarajapuram,
Bangalore - 560 036.
(By Sri.K.N.H.N., Advocate)
Vs.
Defendants: 1. Sri.N.K.Matadaiajh @
N.K.Mattadappa, S/o Late
Kempanna, Aged about 60
years, R/a No.Old 394, New
No.51 (383/B20), Old Post
Office Road, K.R.Puram,
Bangalore - 560 036.
2. Dr.Sumithra T Gowda, Aged
about 52 years, W/o
Sri.N.M.Theerthe Gowda,
Residing at No. 141/B, 6th
Main, IV Block, Rajajinagar,
Bangalore - 560 010.
2 O.S.No.3706/1998
(By Sri.S.G.P., Advocate)
Date of institution of suit 04.05.1998
Nature of the suit Permanent injunction
Date of commencement of 16.6.2004
recording of evidence
Date on which Judgment 04.08.2016
was pronounced
Total duration Days Months Years
00 03 18
/ JUDGMENT /
Plaintiff has filed this suit against the defendants
for the relief of permanent injunction to restrain the
defendants or any one acting on their behalf from
interfering with plaintiff's rights of ownership, possession
and enjoyment in respect of suit 'B' schedule property
and for costs and such other reliefs that this Court may
deem fit.
2. The brief facts of plaintiff's case are that the
plaintiff is the absolute owner in possession and
enjoyment of suit 'A' schedule property bearing No.51/1,
old post office road, Krishnarajapujram, Bangalore - 560
3 O.S.No.3706/1998
036. That the plaintiff had purchased the same from its
original owner Sri.H.C.Ramachandraiah under a
registered sale deed dated: 19.8.1970. That from the
date of purchase, the plaintiff is in peaceful possession
and enjoyment of the suit 'A' schedule property. That
this defendant had trespassed to a portion of suit 'A'
schedule property and consequently plaintiff had filed
O.S.No.5762/1989 before CCH No.13, seeking the relief
of mandatory injunction with respect to the encroached
portion. Said suit was decreed in favour of the plaintiff
and was executed subsequently. At the time of
executing the decree, while demolishing the illegal
structure put by the defendant, a portion of 'B' schedule
property was damaged to an extent of 10' in length and
4' in height in the western corner.
3. That when the plaintiff made attempts to
repair said wall, the defendant threatened the plaintiff
with dire consequences. Since, the defendant is
interfering with the right and enjoyment of plaintiff over
4 O.S.No.3706/1998
suit 'B' schedule property which is a part of suit 'A'
schedule property, plaintiff has filed this suit.
4. After service of suit summons, the 1st
defendant has appeared through his Counsel and has
contested the suit by filing written statement denying the
plaint averments. The 1st defendant has denied the
right, title and possession of the plaintiff over the suit
schedule properties and denied any kind of interference.
The defendant has contended that since the plaintiff is
not the owner in possession of suit schedule properties,
question of seeking any relief does not arise. That this
defendant is the absolute owner in physical possession
and enjoyment of the house property bearing list
No.198/1F new No.383/B20 measuring east to west 23'
and north to south 41' having acquired under the
registered sale deed dated: 12.12.1973. That having
obtained sanctioned plan, the defendant has
constructed over said property.
5 O.S.No.3706/1998
5. That the plaintiff is the owner of the property
towards north of defendant's property. That the plaintiff
has put up a construction by encroaching 1' towards
south of his property into the property of defendant.
That in order to avoid the removal of encroached
portion, the plaintiff had filed O.S.No.576t2/1989 by
furnishing wrong address of the defendant. That
plaintiff has no documents to establish his case and
accordingly, the suit of the plaintiff is liable to be
dismissed.
6. During pendency of the suit, the defendant
sold his property in favour of 2nd defendant.
Consequently, the 2nd defendant was brought on record.
She has contested the suit by appointing the 1st
defendant as her power of attorney. The defendants in
their additional written statement have stated that the 2nd
defendant is none other than the daughter-in-law of the
1st defendant. That the original written statement filed
by the defendant also hold good for the 2nd defendant.
6 O.S.No.3706/1998
7. Based on above pleadings, following issues
were framed by this Court:
ISSUES
1. Whether the plaintiff proves that he was
in lawful possession of the suit schedule
properties as on the date of filing the
suit?
2. Whether the plaintiff proves the alleged
interference by the defendant?
3. Whether the plaintiff is entitled to the
relief of permanent injunction as prayed
for?
4. What decree or order?
8. In order to prove his case, the plaintiff
examined himself as P.W.1 and marked Exs.P1 to P33.
The defendant side have examined the 1st defendant as
D.W.1 and marked Exs.D1 to D10. During pendency of
the suit, a commission was taken to inspect and
measure the suit schedule property. The Court
Commissioner by name Badresh was examined as
C.W.1 and Exs.C1 to C4 were marked. Thereafter, the
case was posted for arguments. The Learned Counsel
7 O.S.No.3706/1998
for the plaintiff has argued that the plaintiff has proved
his case by adducing oral and documentary evidence
and accordingly, is entitled for a decree. The defendant
side have argued that the plaintiff ought to have filed a
suit to declare his title. That in the absence of prayer
seeking declaration of title and possession the plaintiff is
not entitled for any decree. That the evidence produced
by plaintiff is inconsistent and as such, the suit is liable
to be dismissed. Having heard the arguments and on
considering the materials on record, my findings to
above issues are:
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : As per the final order
for the following:
REASONS
9. Issue No.1:- Plaintiff has claimed that
he is in lawful possession and enjoyment of the suit
schedule property. In support of his case apart from his
8 O.S.No.3706/1998
oral evidence, he has also produced and marked
Exs.P1 to P33. Ex.P1 is the sale deed dated: 20.3.1970
and Ex.P2 is the sale deed dated: 19.8.1970. These
documents reflect the title of the plaintiff over the suit
schedule property. Ex.P3 is the tax assessment
extract and Ex.P4 is the license and Ex.P5 is its renewal
issued by panchayath in favour of plaintiff. Exs.P6 to 8
are the tax paid receipts. Exs.P9 to P17 are the various
complaints given by this plaintiff. Ex.P18 to P20 are the
letters issued by I.T.I., Exs.P21 to 30 are the
photographs while Ex.P31 is the certified copy of the
judgment in O.S.No.5762/1989. Similarly, Ex.P32 is the
copy of the order passed in Misc.No.289/1998. Ex.P33
is the certified copy of sale deed dated: 23.10.2001.
10. As against these documents, the defendant
has produced certified copy his sale deed as Ex.D1.
He has produced the approved plan as Ex.D2 and
revenue records as Exs.D3 and 4. Magazine and
annual report and inland letters were produced as
9 O.S.No.3706/1998
Exs.D5 to D9. The special power of attorney executed
by 2nd defendant was produced and marked as Ex.D10.
11. In order to establish his possession over the
suit schedule property, the plaintiff who examined
himself as P.W.1 has testified that he has acquired the
suit schedule property under Ex.P2 sale deed. Ex.P2
sale deed clearly reflects that this plaintiff has
purchased the suit schedule property measuring east to
west 41' and north to south 23'. At the same time, he
has produced and marked Ex.P31 which is the certified
copy of the judgment and decree in O.S.No.5762/1989.
It is pertinent to note that O.S.No.5762/1989 was filed
by this plaintiff against this defendant. Therefore, it is
also a suit between the same parties with respect to the
same subject matter. Suit schedule property herein
was suit 'A' schedule property in O.S.No.5762/1989.
The plaintiff had sought a declaratory relief with respect
to suit schedule property which was granted by the
Court. Admittedly, the judgment and decree in
10 O.S.No.3706/1998
O.S.No.5762/1989 has not been set aside or modified
till date. Therefore, whether it was an ex-parte
judgment or otherwise, same is binding on the
defendant.
12. In O.S.No.5762/1989, issue No.3 was
framed with respect to the title of the plaintiff with
respect to the suit schedule property. The Court
answered said issue in the affirmative and consequently
declared the plaintiff as the owner of the suit schedule
property. Having suffered a judgment and decree, the
defendant is bound by the same. When a competent
Court of Law in a suit between the very same parties
has declared the plaintiff to be owner of this suit
schedule property, the contention of the defendant that
the plaintiff ought to have sought the relief of declaration
in this suit is devoid of merits.
13. It is settled principle of law, that possession
follows title. The Hon'ble High Court of Karnataka in
the decision reported in 2000(1) Kar.L.J.Sh.N.17
11 O.S.No.3706/1998
between P.Purushothama & Ors. V/s Devappa Kulai
has held that
" If the evidence led by parties is
balanced or is not very clear then such
presumption that person having title over land
or other immovable property is to be presumed
to be in the possession thereof, is applicable
and may be raised. Possession follows title,
until otherwise proved. There is no error of
law committed by Lower Appellate Court in
recording the finding".
The principle laid-down in the above ruling is also aptly
applicable to present case on hand. In this case, a
competent court has already declared that this plaintiff is
the owner of the suit schedule property. Therefore,
there is a presumption that the plaintiff is in settled
possession of suit schedule property. This presumption
is further fortified by Ex.P3 demand register extract,
Ex.P4 license and Ex.P5 renewal.
14. During pendency of the suit, a Court
Commissioner was appointed to inspect the suit
schedule property. The Court Commissioner has also
given a finding regarding the possession of plaintiff in
the suit schedule property. Said report has been
12 O.S.No.3706/1998
objected to by the plaintiff. In Ex.C3 the Court
Commissioner has concentrated only on the built up
area. At the same time, the Commissioner on the basis
of the built up area has testified regarding the
possession of the parties. It is settled principle of law,
that a Commissioner cannot be appointed to find out
who is in possession of suit schedule property.
Therefore, the testimony of C.W.1 regarding the
possession of parties cannot be looked into. Further,
the defendant though has denied the title and
possession of plaintiff has admitted at para 4 of his
affidavit filed in lieu of chief-examination that his
property is situated towards south of said property which
inter-alia means the suit schedule property. When the
evidence of D.W.1 is considered as a oath it clearly
reflects that he has not disputed the actual title and
possession of plaintiff over suit schedule property. At
the same time, there is not even an iota of evidence
capable of rebutting the presumption that possession
13 O.S.No.3706/1998
follows title. Therefore, it is to be held that this plaintiff
has successfully established his possession over the
suit schedule property. Accordingly, issue No.1 is
answered in the affirmative.
15. Issue No.2:- The main grievance of the
plaintiff is that the defendant has obstructed the plaintiff
from carrying on repairs to suit 'B' schedule property.
Su it 'B' schedule property is the southern most
boundary of suit 'A' schedule property. To show the
interference caused by the defendant, the plaintiff has
produced Exs.P9 to P17 which are the series of
communication between the plaintiff and the
jurisdictional police. Though these documents pertain
to the earlier transactions, it appears that the
interference by the defendant has continued. Same is
also evident from the written statement filed by the
defendant wherein, he has denied the title and
possession of plaintiff over the suit schedule property.
Therefore, there is no impediment to accept the
14 O.S.No.3706/1998
testimony of plaintiff that the defendant has interfered
with plaintiff's peaceful possession and enjoyment of the
suit schedule property. Accordingly, issue No.2 is
answered in the affirmative.
16. Issue No.3:- Plaintiff has already obtained a
decree in O.S.No.5762/1989 declaring his title. Inspite
of obtaining such a decree, the defendant has continued
to deny the title of the plaintiff. Further, the defendant
has shown resistance to the plaintiff when the plaintiff
tried to repair suit 'B' schedule property. Plaintiff being
the absoluter owner in possession of suit schedule
property, is entitled to protect his possession. He is
also entitled to carry out the necessary repairs to
maintain his properties. Therefore, it is absolutely
essential that the possession of the plaintiff be protected
from the interference of the defendant. Therefore, the
plaintiff is entitled for the relief of permanent injunction
as prayed for. Accordingly, issue No.3 is answered in
the affirmative.
15 O.S.No.3706/1998
17. Issue No.4:- In the light of the above
discussion, I proceed to pass the following:
ORDER
The suit of the plaintiff is decreed with costs.
The defendants or any one acting on their behalf are hereby restrained from interfering with the rights of ownership, possession and enjoyment of the plaintiff over suit 'B' schedule property in any manner.
Draw decree accordingly.
(Dictated to the Judgment Writer through computer, print out taken by her, corrected and then pronounced by me in open Court today the 4th day of August 2016).
(K.L.Ashok) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY.
16 O.S.No.3706/1998/ANNEXURE/ Witnesses examined on behalf of Plaintiff/s:
PW-1 : M.Aandraju Witness examined on behalf of Defendants:
D.W.1 : N.K.Motadaiah Witness examined on behalf of Commissioner:
C.W.1 Bhadresh Documents marked on behalf of Plaintiffs:
Ex.P1 Sale deed dated:20.03.1970 Ex.P2 Sale deed dated:19.08.1970 Ex.P3 Tax assessment extract Ex.P4 License issued by panchayath Ex.P5 Letter of renewal issued by panchayath Exs.P6 To P8 Tax paid receipts Ex.P9 Office copy of the complaint given to police Ex.P10 Acknowledgement Exs.P11 & 12 Copies of the police complaint Exs.P13 & 14 Acknowledgements Ex.P15 Endorsement issued by police Commissioner Ex.P16 Letter issued by ITI notified area committee Ex.P17 Reply issued from police station Exs.P18 To P20 Letters issued by ITI notified area committee 17 O.S.No.3706/1998 Exs.P21 To 30 Photographs Exs.P21(a) To P30(a) Negatives Ex.P31 Certified copy of judgment in O.S.No.5762/89 Ex.P32 Certified copy of order passed in Misc.No.289/98 Ex.P33 Certified copy of sale deed dated:
23.10.2001 Documents marked on behalf of Defendants:
Ex.D1 Certified copy of sale deed dated:12.12.1973 Ex.D2 Approved plan issued by ITI notified area Ex.D3 Tax assessment extract Ex.D4 Tax paid receipt Ex.D5 Magazine Ex.D6 Annual report Exs.D7 To D9 Inland letters Ex.D10 Special power of attorney dated:21.2.2012 Documents marked on behalf of Commissioner:
Ex.C1 Commission warrant Ex.C2 Memo of instructions Ex.C3 Sketch Ex.C4 Report VII.ADDL.CITY CIVIL JUDGE (CCH.No.19) BANGALORE.18 O.S.No.3706/1998
04.08.2016 P - K.N.H.N. D1,2 - S.G.P. (Judgment pronounced in the open Court vide separate) The suit of the plaintiff is decreed with costs.
The defendants or any one acting on their behalf are hereby restrained from interfering with the rights of ownership, possession and enjoyment of the plaintiff over suit 'B' schedule property in any manner.
Draw decree accordingly.
(K.L.Ashok) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY 19 O.S.No.3706/1998