Bangalore District Court
Rangappa vs Muni Anjanappa on 26 February, 2024
KABC010179362016
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26)
Dated this the 26th day of February, 2024
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.5636/2016
Plaintiff: Sri Rangappa (Dead by LRs)
1(a). Smt.Gangamma
w/o Late Rangappa
Aged about 60 years
1(b). Sri R. Venkatesh
s/o Late Rangappa
Aged about 42 years
Both are r/at No.23, 12th Cross
4th Block, Peenya, Bangalore-58.
(By Sri.K.H. Ramu, Adv.)
v/s
Defendants: Sri Muni Anjanappa (Dead by LRs)
1(a). Smt.Sumithramma
w/o Late Muni Anjanappa
Aged about 60 years
1(b). Sri Ravi Kumar @ Vijay Kumar
s/o Late Muni Anjanappa
Aged about 35 years
1(c). Sri Vajri @ Vajramuni
s/o Late Muni Anjanappa
Aged about 35 years
Lrs of defendant are r/at 13th Cross,
Near Ganapathi Temple, Peenya
4th Stage, Bangalore-58.
(By Sri. S.P., Adv.)
2 O.S.No.5636/2016
Date of institution of the suit 03.08.2016
Nature of the suit For mandatory injunction
Date of the commencement 02.08.2017
of recording of evidence
Date on which the judgment 26.02.2024
pronounced
Total duration Years Months Days
07 06 23
(SAVITRI SHIVAPUTRA KUJJI)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the original plaintiff against the original defendant seeking for the relief of mandatory injunction.
2. The brief facts leading to the plaintiff's case are summarized as under:-
That the subject matter of the suit is detailed in schedule 'A' and 'B' of the plaint. 'A' schedule property is said to be a house property bearing No.23 measuring east-west 15 feets and north- south 28 feets situate in Harijan Colony, Peenya, Bengaluru whereas 'B' schedule property is part and parcel of the 'A' schedule house measuring east-west 7 feets and north-south 28 feets being the portion allegedly encroached by the defendant which is sought to be demolished. The plaintiff has submitted that the schedule property originally belonged to his mother Smt.Muniakkayamma who was in possession of this property and was staying along with her family which was allotted by the Govt. to the site-less persons under an Order dated 07.11.1995. It is stated that the Govt. had issued directions to the Bengaluru City 3 O.S.No.5636/2016 Corporation, the present BBMP to fix the assessment to the schedule property u/s 117 of the KMC Act. It is further stated that the Corporation authorities prepared a sketch of the schedule property wherein the plaintiff's mother and his family members were residing and the said house was given CTS No.1323 and a holder certificate was issued in favour of Muniakkayamma. It is stated that she died and thereafter the Corporation issued holder katha in favour of the present plaintiff being her son and assigned the property identification No. as IPD.112/23 to the schedule property. He claims to have paid tax pertaining to this property. He has further stated that he had filed a suit for permanent injunction against the defendant in O.S.No.395/2011 in which the Court decreed the suit on merits and thereby restrained the defendant from interfering with the possession of the plaintiff over the suit schedule property by its judgment and decree dated 05.02.2016. It is alleged that the defendant has been illegally claiming rights over the suit schedule property without showing his house number and by encroaching upon 'A' schedule property to the extent as detailed in schedule 'B' of the plaint, has put up an asbestos sheet house by encroaching upon 'A' schedule property and hence the same is sought to be demolished. It is further alleged that the defendant without having any right, title or interest over the suit schedule property nor having any records in his name has been falsely claiming right over the said property. It is further alleged that his property is said to be Khaneshumari No.11, New Municipal No.10 measuring 47x24 feets and he had deposed in the earlier suit and got marked documents and during the course of his cross-examination in that suit he had clearly admitted about the issuance of the material documents in favour of the present plaintiff which were marked in that suit from Ex.P.3 to 5 which indicated the right of the plaintiff over the schedule 4 O.S.No.5636/2016 property. The plaintiff has further urged that the suit schedule property and other allotted properties to the respective site-less persons belonging to the weaker sections of the society in Sy.No.46/2 totally measuring 1 acre 30 guntas and the said fact is admitted by the defendant in the earlier suit. However it is alleged that having admitted all these material aspects, the defendant has been falsely claiming his right when the Govt. has not allotted the said property to him and never allotted any property measuring 47x23 feets either to the defendant or to his vendors and hence, the alleged sale deeds are concocted and created by the defendant which are not pertaining to site No.10 or 11 of Sy.No.46/2. It is further alleged that the defendant did not state as to how he purchased this property and from whom it was purchased as per Ex.D.1 to 3 which were produced in the earlier suit, but he had admitted that his property was originally allotted to one Muniyamma by the Govt. but however he had failed to prove his ownership over the said property to the said extent without producing any relevant documents. It is alleged that without obtaining any licence or approved plan, he has been illegally squatting over 'B' schedule property, which exclusively belongs to this plaintiff and therefore he said to have come up with the present suit seeking the relief of mandatory injunction seeking direction to the defendant to demolish the offending structure which has been put up on the 'B' schedule property by encroaching thereupon and to hand over its vacant possession to the plaintiff.
3. In pursuance of service of suit summons, the original defendant entered his appearance through his counsel and filed written statement denying the claim of the plaintiff. In his written statement, the defendant has denied the allegations made against him by the plaintiff. It is contended by the defendant that 5 O.S.No.5636/2016 the plaintiff has suppressed material facts before the Court in filing the present suit. It is the contention of the defendant that the property mentioned in the plaint schedule is not at all in existence in the address which is mentioned in the schedule of the plaint and the boundaries of the suit property also do not tally with the residential building constructed by the defendant in his property bearing old katha No.100, Khaneshumari No.11 and New Municipal No.10 measuring 47x24 feets and therefore there was no occasion for this defendant either to encroach upon the plaintiff's property or to put up any alleged structure as alleged by the plaintiff. It is further contended that the claim of mandatory injunction sought for by the plaintiff is hit by the principles of delay and latches and it is further contended that in the earlier suit the plaintiff had not sought for such relief nor the Court had granted such reliefs in the said earlier suit. It is further contended by the defendant that the boundaries of the schedule property or the structure mentioned in 'B' schedule property are not tallying with the boundaries of the defendant's property. It is denied that the Municipal No.23 measuring 28x15 feets belongs to the plaintiff as claimed by him and it is contended by the defendant that his claim over 'A' schedule property is based on created documents. Though the fact of filing of O.S.No.395/2011 by the plaintiff has been admitted by the defendant, but it is contended that even in that suit the defendant had clearly contended that there is no property available adjacent to his property and as such he had never encroached upon plaintiff's property. It is further denied that the schedule property originally belonged to he plaintiff's mother which was granted to her by the Govt. as claimed by the plaintiff. Again it is contended that in fact no such property is in existence except a wide road in the said area which could be ascertained by appointing of a Court Commissioner. The claim of the plaintiff 6 O.S.No.5636/2016 that he along with his family members are residing in the house situated in 'A' schedule property as claimed by the plaintiff. It is contended by the defendant that even assuming that the Govt. had issued a title deed relating to the suit schedule property without showing the site number, it would be of no use to the plaintiff. It is clearly denied by the defendant that he is attempting to grab portion of the 'A' schedule property without having any right over the same as alleged. The other allegations that by encroaching upon 'A' schedule property he has put up the offending structure as described in 'B' schedule property etc., are also denied by him. It is the specific defence of the defendant that he is the absolute owner in possession of the property bearing old No.100, khaneshumari No.11, new Municipal No.10 measuring east-west 47 feets and north-south 24 feets which was originally belonging to the Govt. It is his further defence that on 05.02.2011, the erstwhile Govt. of Mysore under the rule of Maharaja of Mysore had passed order to reserve the lands bearing Sy.No.46 of Peenya Village totally measuring 1 acre 30 guntas for the benefit of Harijans and called the said area as Harijan Colony and the legal administrator at that time formed sites and distributed the same to the needy persons of the said community. According to the defendant, site No.11 was allotted to one Muniyamma which was purchased by the father of this defendant and in the year 1972 he constructed a building over said site and on 16.12.1974, the defendant and his mother sold the said site along with building to one Muninarasiah. It is his further defence that prior to the said transaction, there were so many transactions taken place with regard to site No.11 in Sy.No.46. He has further contended that the original sale deeds pertaining to site No.11 dated 19.04.1959, 12.04.1959 and 19.09.1976 have been handed over to the said Muninarasiah and again on 21.07.1989 the 7 O.S.No.5636/2016 defendant and his children purchased the said property from the said Muninarasiah under a registered sale deed and thereafter the BBMP authorities issued khatha in favour of this defendant and he started paying property tax to the concerned authorities. It is his contention that he has produced all those relevant documents in O.S.No.395/2011. However it is his allegation that the plaintiff has deliberately tried to misguide this Court by alleging that those sale deeds are not pertaining to site No.10 or 11 of Sy.No.46/2. It is further denied that this defendant has failed to prove his ownership over these properties with cogent documents as alleged by him. It is his further contention that the Court in the earlier suit has not denied the title of these properties in favour of this defendant nor has denied the documents produced by him and never observed that the defendant has not proved his ownership over old site No.100, khaneshumari No.11, new Municipal No.10 of Sy.No.46/2. It is the contention of this defendant that the facts involved in the present suit and in the earlier suit are entirely different. It is contended that the plaintiff and his family members were having a hut constructed by them unauthorizedly in the middle of the road in 13 acres of Harijan Colony and the erstwhile panchayath authorities had issued so many notices to them for removal of the said hut and to vacate the same for formation of road, but the plaintiff and his family members continued to live in the said building and got created documents by colluding with the Corporation officials even though there was no proof that this property was their ancestral property. It is further contended that in pursuance of the Notification issued by the Govt. in the year 1994-95, the Peenya Panchayath got merged with the Bengaluru City Corporation and in the year 2010, the Corporation authorities demolished the said unauthorized construction of building put up by the plaintiff and formed a 8 O.S.No.5636/2016 cement road in the 13th Cross of Harijan Colony and after demolishing the said structure, the plaintiff filed suit against this defendant in O.S.No.395/2011 for injunction which became infructuous and not binding on this defendant and therefore according to his contention once again the present suit filed by the plaintiff is not maintainable. It is further contended that the plaintiff cannot seek for mandatory injunctive relief against this defendant after demolition of the structure by the BBMP in the year 2010 and after forming cement road after lapse of one year and if at all the plaintiff is aggrieved, he had to file suit against the BBMP authorities seeking mandatory injunction for restoration of the said building and for seeking possession of the schedule property and therefore the maintainability of the suit is questioned even for non-joinder of necessary parties to the suit i.e., BBMP authorities. The maintainability of the suit is also questioned for improper valuation of the suit reliefs and improper payment of Court fee on the ground that as the plaintiff is not in possession of the schedule 'B' property mere declaration is not sufficient u/s 34 of the Specific Relief Act without seeking possession of the schedule property and for these reasons, the defendant has sought for dismissal of the suit.
4. On the rival contentions of the parties the following issues have been framed :-
1) Whether plaintiff proves that she is the absolute owner of the suit 'A' schedule property?
2) Whether plaintiff proves that defendant has encroached 7x28 feets out of suit 'A' schedule property ('B' schedule property) as claimed in para-3 of the plaint?
9 O.S.No.5636/2016
3) Whether defendant proves that suit is not
properly valued and court fee paid is
insufficient?
4) Whether plaintiff is entitled for mandatory injunctions as prayed for?
5) What order/decree ?
5. To substantiate his claim, the original plaintiff had deposed before the court as PW1 and produced 25 documents marked from Ex.P1 to P25. He had examined one independent witness as P.W.2 in support of his claim. Per contra, the original defendant also deposed before the Court as D.W.1 and he has also relied on 25 documents marked from Ex.D.1 to D.25 and he had also examined one independent witness as D.W.2.
6. It is revealed from the records that during pendency of the proceeding, both the original plaintiff as well as the original defendant died and their legal heirs were brought on record as plaintiff Nos.1 (a) and (b) and defendant Nos.1 (a) to (c). However after impleadment of the legal heirs of the plaintiff and defendant, no further evidence has been adduced from both sides.
7. Despite according sufficient opportunities, no oral arguments have been canvassed on behalf of both sides. However the learned counsel for the plaintiff has submitted his written arguments.
8. On perusal of the materials and the evidence on record, the findings of this Court on the above issues are as under:
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
10 O.S.No.5636/2016
Issue No.3 : In the negative
Issue No.4 : In the affirmative
Issue No.5 : As per final order, for the following:
-: REASONS :-
9. Issue No.1:- The original deceased plaintiff has claimed his absolute ownership and possession of the suit schedule 'A' property. It is his case that this property originally belonged to his mother Smt.Muniakkayamma to whom the said property inclusive of a house property was allotted by the Govt. by its Order dated 07.11.1995 as the land was reserved for allotment to the site-less persons belonging to the Harijan Community. It is further stated that the Govt. accordingly issued directions to the concerned Corporation authorities to prepare a sketch of the schedule property and accordingly a holder khatha was initially issued in the name of his mother Muniakkayamma and after her death the said khatha was issued in favour of the plaintiff being her son. It is his further claim that while issuing the holder khatha in his name, the property was given new identification number as IPD 112/23 and the BBMP fixed the assessment to the said property by fixing the tax. The plaintiff had further referred to a suit filed by him in O.S.No.395/2011 against the original defendant and the decree passed in that suit restraining the defendant from interfering with his possession over the schedule property.
10. However now it is the specific allegation of the deceased plaintiff that the defendant without having any right over the schedule property, has illegally encroached upon the schedule 'A' property belonging to him to the extent as mentioned in schedule 'B' of the plaint and has put up the illegal structure over the said property which has compelled the plaintiff to file the 11 O.S.No.5636/2016 present suit. The defendant on the other hand, has strongly resisted the claim of the plaintiff by alleging that the plaintiff has sought for relief with respect to a non-existing property since the description of 'A' schedule property given by the plaintiff is totally incorrect and it entirely differs from his property which bears the khathat No.100, Khaneshumari No.11 and New Municipal No.10 though it is also situated in the same area and therefore as both the properties are entirely different, there is no question of his encroaching upon the plaintiff's property as alleged by him. He has also contended that the decree obtained by the deceased plaintiff in that earlier suit has nothing to do with the claim put forth by the plaintiff in the present suit since even in that earlier suit this defendant had already contended that there is no property available adjacent to his property. Thus, according to the defence of the defendant though he has put up the disputed structure, it is put up in his land without encroaching upon the plaintiff's property.
11. In view of the rival contentions of the parties, heavy burden is cast on the plaintiff to prove the alleged encroachment made by the defendant in 'A' schedule property as detailed in schedule 'B' of the plaint and if so, whether he is to be held entitled to the suit reliefs. As already discussed supra, both the plaintiff as well as the defendant died during pendency of the proceeding and their legal heirs have been brought on record. Initially the deceased plaintiff himself had deposed before the Court as P.W.1 by reiterating the plaint averments and he had relied on 25 documents marked from Ex.P.1 to P.25. He had also examined one independent witness as P.W.2. Per contra, the deceased defendant had also deposed before the Court as D.W.1 and he had also relied on as many as 25 documents marked from 12 O.S.No.5636/2016 Ex.D.1 to D.25 and he has also examined one independent witness on his behalf as D.W.2.
12. As regards the documents relied on by P.W.1, Ex.P.1 is the genealogical tree of their family which is not seriously disputed by the defendant. Ex.P.2 is the certified copy of a notice issued by the Municipal authorities in his name in the year 1997 with respect to the assessment of tax to the schedule property. He has also produced Ex.P.3 which is the certified copy of the affidavit which was filed by his mother Muniakkayamma before the Govt. authorities with respect to the schedule property. As regards Ex.P.4, it is the notice issued by the Corporation authorities in the name of P.W.1 with regard to khatha entry. Ex.P.5 is the khatha holder certificate issued in his name. To show that he had paid tax pertaining to the schedule property, P.W.1 has produced the certified copies of four tax paid receipts which are marked from Ex.P.6 to 9. As regards Ex.P.10, it is the certified copy of the property register extract standing in the name of his mother Muniakkayamma. He has also produced Ex.P.11 which is said to be the certified copy of survey report pertaining to the suit schedule property which once again shows the name of his mother as holder of the schedule property. Ex.P.12 is the certified copy of Form No.30 issued in her name with respect to schedule property.
13. P.W.1 has also relied on Ex.P.13 which is the certified copy of the assessment extract and Ex.P.14 the copy of electricity bill to show that he has obtained electricity connection to the schedule property. He has produced the certified copy of a FIR as per Ex.P.15 which he had filed against the present defendant and others with respect to the schedule property alleging their interference to his possession and their trespass over the schedule property. As regards Ex.P.16 to 20, they are 13 O.S.No.5636/2016 the few more BESCOM bills and receipts which are produced to show that he has been paying electricity bill pertaining to the schedule property. He has also produced the certified copy of his caste certificate as per Ex.P.21 to prove that he belongs to SC community. As regards Ex.P.22, it is the certified copies of judgment and decree passed in the earlier suit in O.S.No.395/2011. As regards Ex.P.23 & 24, they are the photographs showing the schedule property along with the CD. He has also produced the certified copy of his deposition as per Ex.P.25 in O.S.No.395/2011.
14. As against the above documentary evidence produced by P.W.1, D.W.1 has also produced 25 documents of which Ex.D.1 is the certified copy of the sale deed dated 26.06.1942 standing in the name of Munivenkata with respect to site No.11 measuring 48x24 feets in Sy.No.43. Ex.D.2 is once again the certified copy of sale deed dated 18.10.1948 standing in the name of Chikkabasavaiah with respect to the very same property. Ex.D.3 is the certified copy of the sale deed dated 11.03.1959 standing in the name of Channarayappa with respect to the said property. Ex.D.4 is the certified copy of the sale deed dated 10.09.1973 under which he said to had purchased the said property bearing site No.11 as stated above.
15. DW1 has also produced the certified copy of the sale deed dated 16.12.1974 standing in the name of one Muninarasaiah under which the present D.W.1 and his mother Smt.Kenchamma had sold property bearing khanushumari No.11 measuring 47x24 feets. As regards Ex.D.6, it is the certified copy of the sale deed dated 13.07.1989 under which the children of D.W.1 i.e., the present defendant No.2 (c) through their minor guardian D.W1 have purchased the said site No.11 from Muninarasaiah. As regards Ex.D.7 & 8, they are the certified 14 O.S.No.5636/2016 copies of encumbrance certificates pertaining to the said property. D.W.1 has also produced a notice issued by the BBMP as per Ex.D.9 in his name with regard to khatha registration. As regards Ex.D.10 & 11, they are the two holder khatha extracts standing in his name with respect to the said site No.11 which was said to have been assigned IPD No.1-74-10. Again Ex.D.12 is the holder khatha certificate with respect to this property standing in his name. To prove that he had paid tax pertaining to this property, D.W.1 has produced various tax paid receipts marked from Ex.D.13 to 18. He has also produced few photographs showing the situation of the said property from Ex.D.19 to 24 along with CD at Ex.D.25.
16. In the backdrop of the above oral and documentary evidence placed before the Court by both the parties, now it is to be seen whether the deceased plaintiff and after his death his legal heirs could prove before the court their lawful title and possession over the suit schedule property since they have also sought for mandatory injunctive relief against the defendant seeking direction to demolish the offending structure put up on 'A' schedule property and therefore necessarily they have to establish their lawful ownership over this 'B' schedule property which is alleged to be the encroached portion.
17. The learned counsel for the plaintiff in his written arguments has reiterated the plaint averments and has urged that the suit schedule property bearing No.23 measuring 15x28 feets as detailed in schedule 'A' of the plaint originally belonged to the deceased plaintiff's mother Muniakkayamma who was residing in the house situated therein along with her family. According to his arguments, the said property was allotted to her by the Govt. vide order dated 07.11.1995 as per Ex.P.2 and since then she was enjoying the said property as the absolute owner and thereafter 15 O.S.No.5636/2016 the Bengaluru City Corporation had assessed the said property to tax and also by preparing a sketch, assigned a CTS No.1323 to the said property and issued holder certificate in her favour as per Ex.P.3. According to his further arguments, after her death the Corporation issued holder khatha in favour of her son P.W.1 as per Ex.P.4 by assigning new IPD No.1-72/23 as per Ex.P.5. He has also reiterated that thereafter he started paying tax regularly with respect to this property which is evident from Ex.P.6 to 9.
18. The learned plaintiffs' counsel has also referred to the subsequent documents with regard to city survey report as per Ex.P.10, Form No.13 issued in the name of the plaintiff's mother as per Ex.P.11 & 12, the various electricity bills standing in the name of P.W.1 as per Ex.P.13, 14, 16 to 20. Thus, according to his arguments, all these documents clearly establish the previous absolute title and possession of the mother of P.W.1 and after her death, the said title and possession continued with the deceased P.W.1. In his further arguments, he has referred to the earlier suit filed by the deceased P.W.1 against deceased D.W.1 in O.S.No.395/2011 and the decree obtained in the said suit against D.W.1 as per Ex.P.22.
19. However it is urged on behalf of the plaintiff that now D.W.1 by encroaching upon this property as detailed in schedule 'B' of the plaint, has put up an illegal structure of a sheet house in an area measuring 7x28 feets over which he has absolutely no right. The learned counsel has also referred to the oral and documentary evidence adduced by D.W.1 and the admission of D.W.1 about the issuance of Ex.P.3 to 5 in favour of the deceased P.W.1 and also the address shown in Ex.P.4 as that of 'A' schedule property standing in the name of P.W.1. It is his further argument that the schedule property in Sy.No. 46/2 was allotted in the name of the mother of deceased P.W.1 16 O.S.No.5636/2016 Akkayamma as they belong to the weaker sections of the society totally measuring 1 acre 30 guntas.
20. It is also urged by the learned plaintiffs' counsel that the defendant therefore could not have laid his hands on the schedule property without there being any allotment of site from the Govt. in his favour much less in favour of his ancestors and such a huge extent of property measuring 47x23 feets as claimed by D.W.1 and therefore it is vehemently urged that even his so- called vendors had no lawful title or possession over the said property since 1959 and as such all these alleged sale deeds are concocted and created under which no valid title and possession has been passed on either to D.W.1 or to his so-called vendors with respect to site No.10 or 11 or any portion in Sy.No.46/2. The learned counsel has also urged that even in the earlier suit D.W.1 had never stated about the fact as to how the schedule property was purchased by him and from whom he had purchased as per Ex.D.1 & 2 and had also not stated about the khatha extracts as per Ex.D.9 showing site No.11, old No.100 and as per Ex.D.10 showing khatha number as site No.10. It is therefore argued that D.W.1 has failed to prove his ownership over the said property site No.10 or 11 measuring 47x23 feets with any cogent documents and therefore the offending structure put up by him in 'B' schedule property is unauthorized and illegal.
21. It is relevant to note that P.W.1 has produced the Ex.P.2 which is the copy of notice issued by the Municipal Corporation to P.W.1 u/s 117 of the KMC Act with respect to the schedule property thereby calling upon him to produce the concerned documents such as the particulars of the property constructed with the boundaries, sketch, the assessment extract and other documents after the death of his mother Muniakkayamma. Ex.P.3 is the Form No.9 issued by the Govt.
17 O.S.No.5636/2016which is once again standing in the name of his mother Muniakkayamma thereby issuing the sketch pertaining to the schedule property and this document was also issued during the lifetime of his mother. Ex.P.4 is the notice issued by the BBMP with regard to khatha transfer in the name of P.W.1 after the death of his mother which is once again dated 27.09.2005.
22. All the above material documents produced by PW1 clearly indicate that the concerned authority had issued all these documents certifying the title and possession of P.W.1 and the earlier title of his mother Muniakkayamma over the suit schedule property with the specific measurement as 15x28 feets. It is material to note that all these documents came into existence at an undisputed point of time thereby affirming the right of the present plaintiff after the death of his mother and even thereafter confirmed the said right in his favour. Moreover the subsequent khatha holder certificate as per Ex.P.5 once again indicates that P.W.1 has been in possession of the schedule property with a changed PID No.1-72-73. As against this khatha certificate admittedly we have no contra material from the defendants to assert their right over the suit schedule property.
23. To further substantiate the lawful possession of P.W.1 over the suit schedule property and even that of his mother, he has once again produced a number of tax paid receipts which are marked from Ex.P.6 to 9 which once again indicate that they have been in possession of the suit schedule property. Further Ex.P.10 property register extract pertaining to the suit schedule property standing in the name of mother of P.W.1 once again establishes her earlier lawful possession over the schedule property and it is also clearly indicated as to the existence of the suit schedule property with its survey number and holder khatha number. It is pertinent to note that there is 18 O.S.No.5636/2016 even an endorsement by the Survey Department with regard to due enquiry held on 16.01.1976 as per the order. Again Ex.P.11, the survey report pertaining to this property once again shows that the mother of P.W.1 was holding the suit schedule property with its changed number.
24. Further Ex.P.12- document which is a notice issued by the land records office which once again shows the possession of Muniakkayamma over the suit schedule property which was also issued on 15.02.1990. Ex.P.13 is the notice issued by the BBMP dated 15.09.2009 addressed to P.W.1 as the khatha holder of this property calling upon him to file the property tax returns of 2008-09 with respect to suit schedule property. To further substantiate his lawful possession P.W.1 has produced an electricity bill as per Ex.P.14 with respect to the suit schedule property. All these revenue records pertaining to the suit schedule property issued by the competent authorities clearly establish the fact that the suit schedule property has been in existence since the date of its allotment in the name of the mother of P.W.1 which consequently falsifies the defence of D.W.1 that this property is not in existence.
25. However D.W.1 has also produced various earlier documents of title pertaining to his property site No.11 which are marked from Ex.D.1 to 6. As per his assertion, he is the owner of the property bearing khaneshumari No.11, old number of which was 100 and new Municipal No.10 measuring 47x24 feets. Even according to his defence, this particular property was belonging to the Govt. and in the year 1911 the then Govt. of Mysore passed an order reserving Sy.No.46 totally measuring 1 acre 30 guntas for the benefit of the Harijan community and consequently the legal administrator formed sites in the said land and allotted the same to the needy persons. According to his defence, his site 19 O.S.No.5636/2016 No.11 was earlier allotted to one Muniyamma from whom his father purchased it and thereafter in the year 1972 he constructed building on the said site and subsequently in the year 1974 he along with his mother sold the said property to one Muninarasaiah as per Ex.D.5 and prior to it there were many transactions with respect to this site No.11. It is his further contention that earlier there were about three sale transactions in between Muninarasaiah and others and again as per Ex.D.6 he along with his children, purchased the very same property from Muninarasaiah.
26. Thus, according to the defence of D.W.1 they are concerned to khaneshumari No.11 formed in Sy.No.46/2 and since his property is entirely different than the property claimed by P.W.1, there is no question of his encroaching upon the plaintiff's property, much less on schedule 'B' property as alleged by the plaintiff. Thus, even according to D.W.1 he is not concerned to the suit schedule property claimed by the plaintiff. Though in the plaint schedule the plaintiff has not referred to Sy.No.46, but in his cross-examination he has also admitted that the property in which he is residing is also formed in Sy.No.46. However as already discussed above, the voluminous documents produced by P.W.1 clearly establish the existence of the suit schedule property in their possession since the time of his mother who was allotted this property way back in the year 1995.
27. Therefore, when as per the defence of D.W.1 he acquired the said site No.11 lastly as per Ex.D.6 in the year 1989, the burden is on him to establish as to how this Khaneshumari No.11 is the very same site claimed by him allegedly formed in Sy.No.46, because if we peruse the schedule site No.11 shown in Ex.D.6, except referring to khaneshumari No.11, there is no reference about any survey number. Even in Ex.D.7 & 8 20 O.S.No.5636/2016 encumbrance certificates pertaining to this site No.11, there is no mention about any survey number, much less Sy.No.46 claimed by him. Even in Ex.D.9 notice issued by the BBMP with regard to khatha registration, there is no reference of anysurvey number except the old property No.100. It is further relevant to note that even in Ex.D.10 and Ex.D.11 holder khatha extract and holder khatha certificate standing in the name of D.W.1 there is no mention about site No.11 except referring to old No.100 and new No.10.
28. Thus, what could be gathered from the documents produced by D.W.1 is that except in Ex.D.2 sale deed of this site No.11 standing in the name of Chikkabasavaiah who is the predecessor-in-title and in the previous sale deed Ex.D.1, in none of the earlier sale deeds we find any reference about the Sy.No.46. Moreover in Ex.D.4, the site No.11 is described as Gramathana khaneshumari No.11 which once again casts suspicion as to whether this site No.11 claimed by D.W.1 is formed in Sy.No.46. Even in Ex.D.2, there is not even mention of this gramathana number as mentioned in Ex.D.4. No doubt it is the plaintiff who has approached this Court with the present suit seeking the reliefs, who has to prove his case independently and he cannot rely on the weakness of the defence of the defendant, but still when as per the own defence of D.W.1 he is claiming right over a different site than the suit property claimed by the plaintiff, then he has to show as to how the suit schedule property bearing 23 claimed by P.W.1 is a non-existing property, because it is an undisputed fact that the lawful possession of the plaintiff over the suit schedule property has been already affirmed by the Court in the earlier proceeding in O.S.No.395/2011 which has not been challenged by the defendant till this date.
21 O.S.No.5636/201629. As rightly urged by the learned counsel for plaintiff in his written argument, the earlier Court in O.S.No.395/2011 as per Ex.P.22- judgment and decree has clearly held that the deceased P.W.1 has been in lawful possession and enjoyment of the suit schedule property. No doubt that was a suit brought for bare injunction by the present PW.1, but even in the said suit he had specifically alleged that the present D.W.1 was making efforts to take possession of the suit schedule property and to damage the suit schedule property and had also alleged that he was attempting to put up the illegal construction over the suit schedule property. The Court after recording the full fledged trial from both sides and after appreciating the oral as well as documentary evidence, has held that the present P.W.1 could sufficiently establish his lawful possession over the suit schedule property and has also negatived the defence of the present defendant that the suit schedule property was a non-existing property. The said judgment and decree remained unchallenged by the defendant or even by the deceased D.W.1 till this date. Under such circumstances when the said observations have attained finality, it is no longer open to the defendants now in the present suit to once again contend that the plaintiffs are claiming right over a non-existing property.
30. It is further relevant to note that P.W.1 has also produced the various photographs showing the existence of the suit schedule property and the house which is put up on the said property as per Ex.P.23 & 24. It is not the defence of D.W.1 or even his legal heir the present defendants that the house property shown in Ex.P.24 and 25 belongs to them nor it is their contention that this house property has been constructed in some other property other than the suit schedule property. It is further relevant to note that in the year 2008 itself i.e., much earlier to 22 O.S.No.5636/2016 filing of O.S.No.395/2011 the present P.W.1 had approached police with a complaint against the present D.W.1 & three others as per Ex.P.15 FIR and complaint alleging that D.W.1 had illegally trespassed over his house No.23 and tried to demolish the same. This document has not been specifically disputed by the defendants. Thereafter P.W.1 filed O.S.No.395/2011 for the relief of injunction and obtained a decree in his favour against D.W.1.
31. As discussed above, all the revenue entries with respect to the suit property are standing in the name of the deceased plaintiff. No revenue authorities would issue any revenue records in favour of the present P.W.1 without ascertaining their lawful possession and title over the property. Moreover the concerned BESCOM as well as BWSSB authorities have been collecting the electricity and water bills from P.W.1 with respect to the very same property. Therefore the contention raised by the defendants that the plaintiffs are claiming right over a non-existing property, cannot be sustained. Therefore it could safely be held that the plaintiff could sufficiently prove his absolute ownership over suit 'A' schedule property. Hence this issue is answered in his favour in the affirmative.
32. Issue Nos.2 & 4:- Since both these issues are interconnected, they are tried together to avoid repetition of facts. It is the specific allegation of the plaintiff that D.W.1 has encroached upon 'A' schedule property to an extent of 7x28 feets as detailed in schedule 'B' of the plaint and therefore he has sought for recovery of possession of the said encroached portion. D.W.1 has specifically contended that since he is the owner of site No.11 which is different than the schedule property, there is no question of encroaching upon 'A' schedule property as alleged by the plaintiff. As already held above, the Court in the earlier 23 O.S.No.5636/2016 proceeding has clearly affirmed the possession of the deceased plaintiff over the suit schedule property to an extent of 28x15 feets which order has not been challenged by D.W.1 or even the present defendant till this date, now they are bound by the said judgment and decree and consequently it is to be held that the plaintiffs are in lawful possession and enjoyment as owners of the suit schedule 'A' property which has been granted in favour of the mother of P.W.1 in the year 1995.
33. Since till this date, no portion of this property has been taken over by any authority or by any other person it is to be held that as on the date of institution of this suit certainly the deceased plaintiff and his family members were holding this extent of property. Therefore, when it is not the defence of D.W.1 that the plaintiffs are claiming right over this property site No.11 and as he has also no rival claim over the suit schedule property bearing No.23, then it is to be held that the structure put up by the defendant over 'A' schedule property is certainly illegal. There is no denial by D.W.1 that they had put up structure as claimed by the plaintiff. When it is now proved that the plaintiffs are the owners in possession of the extent of the property as shown in 'A' schedule of the plaint, then they are certainly entitled to recover that portion of the property as mentioned in schedule 'B' of the plaint which is now proved to be in illegal and unauthorized possession of the defendants.
34. It is further relevant to note that even in the earlier proceeding, the present D.W.1 had nowhere asserted that the plaintiffs were claiming right over khaneshumari No.11 claimed by D.W.1 nor it was his defence in the said suit that the said khaneshumari No.11 is inclusive of the property claimed by P.W.1. It is pertinent to note that as per his deposition in the earlier suit which is produced at Ex.P.25 by P.W.1 in this case, he 24 O.S.No.5636/2016 had not produced the copy of the Govt. order dated 05.02.2011 under which he had claimed that the said land was granted to the landless people and also to the weaker section of the society. It is also pertinent to note that even he had clearly admitted in his further cross-examination in that proceeding that after such Govt. Order the concerned revenue authorities had prepared sketches and plan and distributed sites to the needy persons, but he had not produced such authenticated documents to show that site No.11 was allotted to him by the Govt.
35. Even DW1 could not produce any building licence to show that he had constructed house in the said property. On the contrary in the further cross-examination of D.W.1 in the earlier proceeding as per Ex.P.25 on page-71 he has clearly admitted that in Ex.P.4 which was produced in the suit the address mentioned in No.23, 12th Cross, Harijan Colony, Peenya Grama which is the very same address of the suit schedule property which is shown in the present suit by the plaintiff. All these circumstances clearly establish that at an undisputed point of time suit 'A' schedule property was granted in the name of mother of P.W.1 and after her death P.W.1 along with his legal heirs continued to hold the said land as absolute owner. Since their lawful possession has already been affirmed by the Court in the earlier proceeding which has not been challenged by the defendants and since it is now proved that by asserting their rights over a different property D.W.1 had trespassed over 'A' schedule property belonging to the plaintiffs and have put up the offending structure therein, certainly the plaintiffs are entitled to recover the said portion as prayed for in the suit. Accordingly both these issues are also answered in favour of the plaintiffs in the affirmative.
25 O.S.No.5636/201636. Issue No.3:- D.W.1 has questioned the maintainability of the suit on the ground that the plaintiff has not valued the suit reliefs properly and the court fee paid by him was deficit. In para-14 of his written statement he has contended that the plaintiff has not valued the suit schedule property and the court fee paid by him is insufficient and he has to pay court fee on the market value of the property since he was not in possession of the schedule property. Except raising this contention in the pleadings the deceased defendant never pressed into service this particular issue during the course of proceeding. On the other hand, it is he allowed the matter to be proceeded with.
37. Furthermore, it is material to note that it has been the definite stand taken by the deceased plaintiff that he was in lawful possession of the suit 'A' schedule property and since his possession was interfered with by the defendants he had to file the earlier suit and obtain decree. It is his specific allegation that after obtaining decree in the said suit the present D.W.1 illegally trespassed into 'A' schedule property and has put up the offending structure and therefore he has to seek for the relief of mandatory injunction. Therefore the valuation made by the plaintiff u/s 24(d) of the Court Fees Act cannot be said to be improper or incorrect. Therefore the contention raised by the defendants in this regard certainly holds no substance and accordingly discarded. Accordingly this issue is answered against the defendants in the negative.
38. Issue No.5 :- In the light of the findings given on the above issues and in the facts and circumstances of the case, the parties to this suit are hereby directed to bear their own cost of litigation. Hence, the Court hereby proceeds to pass the following:-
26 O.S.No.5636/2016ORDER The suit filed by the plaintiffs against the defendants for the relief of mandatory injunction is hereby decreed as prayed for.
The defendants are hereby directed by an order of mandatory injunction to demolish the offending structure put up on 'B' schedule property and to hand over the vacant possession of the same within two months from the date of this judgment and on their failure to comply with the same the plaintiffs are at liberty to get it demolished and to recover possession of 'B' schedule property from the defendants in accordance with law.
Parties to bear their own costs.
Draw decree accordingly.
(Dictated to the Stenographer Grade-I, transcribed by him on Computer, carried out corrections, print out taken and then pronounced in the Open Court on this the 26th day of February, 2024) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs:
PW.1 : Rangappa PW.2 : Sampangi List of documents exhibited for plaintiffs: Ex.P1 : C/c of genealogical tree Ex.P2 : C/c of the notice Ex.P3 : C/c of affidavit issued by Govt 27 O.S.No.5636/2016 Ex.P4 & 5: C/c of khatha Ex.P6 to 9:C/c of tax paid receipts Ex.P10 : C/c of AR extract Ex.P11 : C/c of survey report Ex.P12 : C/c of Form No.13 Ex.P13 : C/c of self assessment extract Ex.P14 : C/c of electricity bill Ex.P15 : C/c of FIR Ex.P16 to 20: C/c of BESCOM bill & receipts Ex.P21 : C/c of Form-D (Caste certificate) Ex.P22 : C/c of judgment and decree in OS 395/2011 Ex.P23 & 24: Photographs with CD Ex.P25 : C/c of depositions in OS 395/2011 List of witnesses examined for defendants:
D.W1 : Muni Anjanappa
D.W2 : Prakash J
List of documents exhibited for defendants:
Ex.D1 : C/c of sale deed dtd.26.02.1942
Ex.D1(a): Typed copy
Ex.D2 : C/c of sale deed dtd.18.10.1948
Ex.D2(a): Typed copy
Ex.D3 : C/c of sale deed dtd.11.03.1959
Ex.D3(a): Typed copy
Ex.D4 : C/c of sale deed dtd.10.09.1973
Ex.D4(a): Typed copy
Ex.D5 : C/c of sale deed dtd.16.12.1974
Ex.D5(a): Typed copy
Ex.D6 : C/c of sale deed dtd.13.07.1989
Ex.D6(a): Typed copy
Ex.D7 & 8: C/c of encumbrance certificates
Ex.D9: C/c of tax paid receipt
28 O.S.No.5636/2016
Ex.D10 : C/c of khatha extract
Ex.D11 : Khatha extract
Ex.D12 : Khatha certificate
Ex.D13 to 18: Tax paid receipts
Ex.D19 to 25: 6 photos along with CD
X Addl. City Civil & Sessions Judge,
Bangalore.