Bangalore District Court
Sri. U.H.Munireddy vs Sri. B.Prakash Bhat on 29 October, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY (CCH No.8)
Dated this the 29th day of October 2015.
PRESENT:
S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.640 of 2002
PLAINTIFF: Sri. U.H.Munireddy,
S/o Hanumantha Reddy,
Aged about 65 years,
R/at Kottaullimangala,
Denkanikote Taluk, Dharmapuri.
(By Smt. Shylavathi A.N. advocate)
: Vs :
DEFENDANTS: 1. Sri. B.Prakash Bhat,
S/o Late B.K.Bhat,
Aged about 45 years,
R/at No.1082, 35th 'B' Cross,
Jayanagar, 9th Block,
Bangalore - 41.
2. Smt. Sathyavathi,
W/o Aswathnarayana Reddy,
Aged about 44 years,
R/at No.1, Sy.No.5/9, Babu
Reddy Road, N.G.R. Layout,
Roopena Agrahara, Madiwala
Post, Bangalore - 560 068.
(By Sri.S.N.A.R advocate for D.1,
D.2-Exparte)
2 O.S.No.640/2002
Date of the institution of suit: 28.1.2002
Nature of the suit : Permanent injunction
Date of the commencement of 21.10.2009
recording of the evidence :
Date on which the judgment 29.10.2015
was pronounced :
Total duration: Year Months Days
13 09 01
XI Addl.City Civil Judge,
B'lore city.
JDGMENT
The plaintiff has filed this suit against defendants No.1 and
2 seeking the relief of permanent injunction restraining the
defendants from interfering with plaintiff's peaceful possession
and enjoyment of the suit schedule property and for grant of
other reliefs including cost of the suit.
2. The case of the plaintiff as averred in the plaint briefly
stated as follows:-
The subject mater of the suit one stated in the plaint
schedule is in respect of site No.7 in Sy.No.5/3 and plaintiff
has described the suit schedule property in the plaint schedule
which reads as follows:
3 O.S.No.640/2002
All the piece and parcel of the site bearing No.7in
Sy.No.5/3 situated at Roopena Agrahara, Begur
hobli, Bangalore South Taluk, measuring east to
west 40 feet and north to south 30 feet and
bounded by:
East by: Boda Reddy's House
West by: 20 feet road,
North by: Ramakrishnappa's house
South by: Venkataramanappa's house,
12 x 10 sheet roofed house with compound.
It is the case of the plaintiff that he is the absolute owner
of suit schedule property ie., site No.7 carved out of Sy.No.5/3
situated at Roopena Agrahara village, Bangalore-68 and he
further pleaded that suit schedule property was purchased by
him under oral agreement dated: 18/11/1987 from
1) Late Annaiah, S/o late Thimmaiah, 2) Sri. Babu Reddy, S/o
late Annaiah, 3) Smt. Sathyavathi, W/o Late Ashwath Reddy by
paying valuable consideration and plaintiff was put in
possession of suit schedule site by its vendors on 18/11/1987
and since the date of formation of sites in Sy.No.5/3 of
Roopena Agrahara village, the plaintiff was having lawful
possession and enjoyment of the said site No. 7 as purchaser
since 18/11/1987. Plaintiff also further stated that in
Sy.No. 5/3 there are about 9 sites were formed and among 9
4 O.S.No.640/2002
sites, site No.1 and 2 are retained by Smt. Sathyavathi
(defendant No.2) original owner of the property, site No.3 was
sold to defendant herein, site No.4 to 3rd party, Site No.5 and 6
to Sri. Bharath Bhat, brother of defendant No.7 and site No.8
to one Sri. Rajanna and 9 is with one Sri. Venkataramappa,
wherein all these sites as formed in Sy.No.5/3 were measuring
30 X 40 feet and all 9 sites formed therein are adjacent to each
other. Plaintiff further stated that since for the past 14 years,
he is in lawful possession by constructing a shed measuring 10
X 12 feet with compound wall of the suit schedule property and
enjoying the same without any interference of anybody and
now first defendant who is owner of site No.3 is attempting to
dispossess the plaintiff from the schedule property and also
making attempts to remove the wall of built by plaintiff
between his site No.7 and site No.6 which belongs to
defendant's brother namely Bharath Bhat . The defendant nor
his brother Bharath Bhat is not concerned with suit site No.7,
which is in exclusive possession and occupation of the plaintiff.
Plaintiff also pleaded further that Smt. Sathyavathi along with
her father-in-law late Annaiah and brother-in-law late Babu
Rao had previously executed a G.P.A by receiving valuable
consideration in favour of plaintiff with regard to the schedule
property as there was no sale and registration of revenue sites
during that period and accordingly put the plaintiff in
possession of site No.7 and now plaintiff and his vendors are
5 O.S.No.640/2002
likely to enter into the schedule deed. Wherein, defendant is
also not having absolute sale deed in respect of site No.3. The
plaintiff has paid betterment charges and other taxes towards
suit schedule property and obtained Anubhavadhar khatha
issued to the person in possession by CMC, Bommanahally,
Bangalore-68. Plaintiff further stated that he was put in
possession of schedule site No.7 and owner thereof. But,
defendants are interfering with his peaceful possession in
respect of site No.7 wherein defendants have no right, title or
interest in the suit schedule property and they did not heed to
the request made by him not to interfere in his possession, but,
defendant did not heed to the request of plaintiff and they bent
upon to cause interference and obstruction in the possession of
the plaintiff, wherein defendant himself has approached CMC
office at Bommanahalli village with regard to suit schedule
property and authorities assured plaintiff and defendant No.1
and also warned defendant No.1 not to interfere with plaintiff's
possession and enjoyment over the suit schedule property, but,
defendant continued to cause interference over the suit
schedule property and also making open threats and defendant
No.1 is making illegal acts to dispossess the plaintiff from the
suit schedule site, wherein plaintiff approached local police
station and complained about illegal act of the defendant. But,
they directed the plaintiff to approach civil court for the relief.
Hence, plaintiff urged cause of action for the suit arose on
6 O.S.No.640/2002
11/11/2001 and subsequently, cause of action subsisted as
defendant threatened the plaintiff to dispossess from the suit
schedule property. Hence alleging these facts, plaintiff has
filed this suit for the relief of permanent injunction against
defendant No.1, wherein defendant No.2 is subsequently added
in this case by the plaintiff.
3. The defendant No.1 appeared through counsel and
filed written statement. Wherein defendant No.2 inspite of
service of summons, remained absent and accordingly,
defendant No.2 is placed exparte on 25/6/2015. Defendant
No.1 filed written statement inter-alia contended that suit filed
by the plaintiff is false, frivolous and vexatious and same
deserves to be dismissed in limine. Defendant No.1 contended
that land bearing Sy.No.5/9 is self-acquired property of one
Sri. Annayappa, S/o Sri., Thimma Reddy and it does not
belong to Sri. Babu Reddy or Smt. Sathyavathi and schedule
site bearing No.7 actually belongs to one Sri. Bharath Bhat
who is brother of defendant ad same has been acquired
through registered sale deed. Plaintiff has filed frivolous and
vexatious claim against defendant No.1 by way of suit for bare
injunction. Defendant No.1 denied the plaint allegations that
plaintiff is the owner of site No.7 carved out in Sy.No.5/9
situated at Roopena Agrahara village and on the contrary,
Sy.No. 5/9 is self-acquired property of one Sri. Annaiah and
7 O.S.No.640/2002
defendant No.1 also denied plaintiff's alleged possession in
respect of site No.7 and defendant No.1 contended that earlier
xx site No.7 along with site No.6 belongs to Bharath Bhat who
is xx of defendant No.1 wherein Bharath Bhat had acquired
site No.6 and 7 through registered sale deed and hence, plea
regarding purchase of site No.7 through oral agreement is
absolutely false and it is self-serving plea only to commence a
frivolous litigation by the plaintiff without any basis of records
or evidence. Hence, he is not in possession of the property in
question and the allegation that defendant No.1 attempted to
interfere with his possession and enjoyment is absolutely false.
Defendant No.1 further contended that site No.6 and 7 are
belong to his brother Bharath Bhat and in respect of the same,
there is BDA notification dated: 27/4/1987 that Sy.No. 5/9 of
Roopena Agrahara belongs to Sri. Annaiah, S/o Thimma
Reddy. Hence, defendant No.1 denied the allegations as
pleaded by the plaintiff in further paragraphs 5 to 7 and also
denied the allegations of plaintiff in respect of site No.7 and
defendant No.1 denied the cause of action as alleged in the
plaint. Hence, plaintiff is not entitled for the reliefs claimed
and suit is liable to be dismissed with costs. Defendant further
contended that, this is suit is filed on no tangible evidence. On
the contrary, defendant and his brother who are the absolute
owners of the property described above are facing harassment
in the hands of plaintiff, who even after filing the above suit is
8 O.S.No.640/2002
trying to interfere with the possession of the defendant. Hence,
defendant pleaded that he reserves his right to seek
appropriate legal remedy against the plaintiff. Hence, with this
defence, first defendant filed his written statement on
20/3/2002.
4. Defendant No.1 also filed additional written statement
on 23/7/2002 wherein defendant No.1 in para-2 of the
additional written statement stated that plaintiff is claiming
schedule site No.7, whereas defendant is the owner of site
No.8 which he acquired from one Sri. Annaiah, S/o Thimma
Reddy for a sale consideration on 15/4/1988 and since that
day, first defendant has been in possession of site No.8. At the
time of selling the sites in the year 1988 the said Sri. Annaiah
executed sale deeds and sale agreements with affidavits along
with his son one Sri. Babu Reddy and Smt. Sathyavathi, who is
the widow daughter in law of his elder son Late
Ashwathanaraya Reddy. The schedule site No.7 actually
belongs to one Sri. Bharath Bhat who is the brother of
defendant herein and same is on the northern side of site No.8.
The layout was formed by one Sri. Annaiah consisting of 1
acre 30 guntas at Roopena Agrahara village bearing Sy.No. 5/9
and is divided into 30"X40" sites in all 29, wherein
Sri. Annaiah had formed layout numbering each site from site
No.1 to 29. Wherein site No.1 to 3 are in possession of
9 O.S.No.640/2002
Smt. Sathyavathi, who is the daughter-in-law of Sri. Annaiah.
Defendant No.1 further contended site No.1 and 2 are in
possession of Smt. Sathyavathi and whereas she is in actual
possession of three sites which are sites bearing Nos1, 2 and 3
and site No.4 is purchased and is in the possession of
Smt. Jyothi Bhat wife of defendant and not site No.3 as stated
by plaintiff and she is running a paying guest accommodation
in her individual capacity. Site No.5 is in the occupation of
one Sri. Peer Sahib who is a retired Sub-Inspector of Police, site
No.6 and 7 are interest he possession of Sri. Bharath Bhat
who is elder brother of defendant No.1 and site No.8 is
purchased by defendant No.1 and he is in possession of the
same and there is misconception in the mind of plaintiff that
Smt. Sathyavathi is in the occupation of only two sites bearing
site No.1 and 2, whereas Smt. Sathyavathi is in occupation of
three sites bearing sites No.1, 2 and 3. The plaintiff without
verifying where exactly the sites are Located in the layout plan
has gone and entered into some kind of a transaction with
Smt. Sathyavathi for the purchase of site No.7 and also now
trying to occupy site No.8 of defendant No.1 thinking that it is
site No.7 and to safeguard his transaction with
Smt. Sathyavathi, he is trying desperately to make some sham
documents in connivance with Smt. Sathyavathi and
fraudulently claim site No.8 of defendant No.1 as site No.7as if
he purchased the site No.8. The root of this dispute is created
10 O.S.No.640/2002
by Smt. Sathyavathi and if this court summons
Smt. Sathyavathi as a necessary and proper party and enquire
with her as to how many sites are in her possession and also
make her to produce the original layout plan which is with her
before this court the facts can be clearly brought out for the
complete and correct adjudication of this dispute. Defendant
No.1 also got xerox copy of the layout with signatures of
Sri. Annaiah, Sri. Babu Reddy and Smt. Sathyavathi. It is
further contended that, after the death of Sri. Annaiah and
Sri. Babu Reddy, the daughter-in-law Smt. Sathyavathi has
gone and illegally changed the entry in the RTC from Sy.No.5/9
to Sy.No. 5/3 and same is invalid and incorrect. The property
comes under Bommanahalli CMC and presently, under the
Bruhat Bengaluru Mahanagara Palike. Smt. Sathyavathi and
her sons one Sridhar and Sri. Mahesh are also fighting a
partition suit against S. Susheela, who is the wife of second
son of late Annaiah over the property bearing Sy.No. 5/9 of late
Annaiah in O.S.No.6278/2004 before the court of City Civil
Judge at Bangalore and same is still is pending. Whereas
plaintiff has colluded with Smt. Sathyavathi and plaintiff
falsely claiming the site No.8 of the defendant by stating that
he has entered into an oral agreement with late Annaiah for
site No.7, which is in lawful possession of Sri. Bharath Bhat
and also claims that property is situated in Sy.No.5/3 instead
of Sy.No.5/9. It is further contended that, plaintiff also claims
11 O.S.No.640/2002
that there are only nine sites in the entire layout consisting of 1
acre 30 guntas where there are 29 sites and if at all plaintiff
has any claim as under site No.7, he should file a suit against
Sri. Bharath Bhat and make him as defendant and as such
suit till not lie against defendant No.1, who is owner of site
No.8 and plaintiff does not have any cause of action and
defendant further contended that, on 8/11/2000 one Mr.
Ramakrishna , S/o U.H. Munireddy who is the plaintiff in this
suit attempted to trespass and take possession of site No.8
belonging to this defendant by claiming site No.8 as site No.7
and police complaint was filed against him at the Madivala
Police Station, Bangalore and thereafter, plaintiff once again
forcefully broke open the lock of the gate of defendant at site
No.8 and attempted to take possession on 21/5/2004 along
with some goonda elements and once again a police complaint
was filed with Madivala Police station, Bangalore and the police
made a detailed enquiry at the site and issued notice to both
parties ie., plaintiff U.H.Munireddy and defendant Sri.
B.Prakash Bhat under section 160 of Cr.P.C and thereafter
booked a case against plaintiff's son Sri. Ramakrishna and
others under sections 448, 427 r/w 34 of I.P.C. Defendant
No.1 further stated that Smt. Sathyavathi who is amongst
original executors of site No.8 also trying false claim over site
No.8, wherein this defendant has filed an injunction suit in the
court of Prl. City Civil and Sessions Judge, Bangalore in
12 O.S.No.640/2002
O.S.No.5692/2005 and obtained an order of status quo until
further orders. Hence, defendant No.2 does not have any right,
title or interest over the suit schedule property as the partition
suit filed by her against Smt. Susheela and other daughter-in-
law of late Annaiah is still pending before the City Civil Court
in O.S.No.6278/2004. Therefore, plaintiff could not have
obtained any valid title over the suit schedule property as his
vendor herself does not have any valid title to convey the suit
schedule property. Hence, defendant No.1 denied the entire
case pleaded by the plaintiff and also contended that this suit
is false, frivolous and vexatious, wherein suit for bare
injunction without seeking any possession is not maintainable
and defendant No.1reiterated that site No. 7 has been in
possession of his brother ever since the date of purchase of
property and there is also BDA notification dated:27/4/1987
ie., Sy.No. 5/9 of Roopena Agrahara belongs to Annaiah, S/o
Thimma Reddy at Sl.No.14 of notification and real fact is that
plaintiff is resident of Kottuala Mangala, Denkanikotte Taluk,
Dharmapuri District, Tamil Nadu and was never in possession
of suit schedule property. Wherein defendant along with his
brother was all along in the possession of the suit schedule
property having purchased the same vide a registered sale
deed and hence, plaintiff has no legal possession over the suit
schedule site and accordingly defendant No.1 denied the claim
of plaintiff in respect of site No.7 and also cause of action and
13 O.S.No.640/2002
as such defendant No.1 prayed for dismissal of the suit with
costs in the interest of justice and equity.
4. Based upon these pleadings of the parties, the
following issues are framed :-
1. Whether the plaintiff proves that he is in
lawful possession of the suit schedule
property as on the date of the suit?
2. Whether he further proves that the
defendant is interfering with his possession
over the suit schedule property?
3. Whether the plaintiff is entitled for the
injunction as prayed for ?
4. What order or decree?
5. In order to prove the above issues, the plaintiff is
examined as P.W.1 and got marked documents Ex.P.1 to P19
and with this evidence, plaintiff side evidence is closed.
Thereafter, first defendant himself is examined as D.W.1 and
got marked documents as Ex.D1 to 21 and with this evidence
first defendant closed his side and thereafter, this suit is
posted for arguments.
6. Heard the arguments of the counsel appearing for the
plaintiff and counsel for defendant. Learned Counsel for the
plaintiff has submitted written arguments and learned counsel
14 O.S.No.640/2002
for defendant No.1 has also submitted written arguments and
relied upon following decisions;
In support of his case, the learned counsel for
defendants has filed the following decisions:-
1. 2006(5) SCC 282 (Seema Arshad Zaheer & Ors V
Municipal Corporation of Greater Mumbai)
2. MANU/KA/0872/2012(Sampangi Vrs
N.Premalatha)
3. 1994 (1) SCC 1(S.P.Chengalvaraya
Naidu(dead)By Lrs Vrs Jagannath(Dead) by
Lrs and others.)
4. (1994) 1 SCC 6(Central Board of Secondary
Education Vrs Vineeta Mahajan(Ms) and
another)
5. (2010) 2 SCC 114(Dilip Singh Vrs State of Uttar
Pradesh and others)
6. (2010) 10 SCC 512 (Man Kaur(Dead) By Lrs Vrs
Hartar Singh Sangha).
7. AIR 1977 SC1724(Thiru John(In C.A.Nos.1895-
1896 of 1974) V Subramhamanya (In
C.A.No.1907 of 1974) Vrs The Returning Officer
and others.
8. AIR 2009 SC2463(Seth Ramdayal Jat Vrs Laxmi
Prasad)
7. On perusal of the pleadings filed by the parties and
on appreciation of the evidence of PW.1 and documents
15 O.S.No.640/2002
marked for plaintiff Ex.P.1 to P.19 and that of D.W.1 and
Ex.D.1 to D.21 and after considering the argument contention
submitted before this court, I answer the above issues are as
follows:-
Issue No.1 to 3: In the negative;
Issue No.4: The suit filed by the plaintiff
for the relief of permanent
injunction deserves to be
dismissed holding that plaintiff
shall have to file comprehensive
suit for declaration of title
based upon alleged sale deed
dated 21.4.2007 for the
following reasons:-
REASONS
8. Issue No.1 and 2: It is the specific case of the
plaintiff that he is in lawful possession and enjoyment of the
suit schedule property described in the schedule annexed to
the plaint in respect of site bearing No.7 said to have been
located in Sy.No.5/3 situated at Roopena Agrahara Village,
Begur Hobli, Bengaluru South Taluk measuring east-west
40 ft., and n 30 ft., within the boundaries as stated in the
plaint schedule, wherein plaintiff alleged that schedule site
belongs to defendant No.1 and 2, wherein defendant No.2 has
executed sale deed in favour of plaintiff on 21.4.2007 and as
16 O.S.No.640/2002
such, plaintiff alleged that he is in lawful possession and
enjoyment of the suit schedule property i.e., site No.7 situated
in Sy.No.5/3 and plaintiff claims that he has purchased the
suit schedule property i.e., site No.7 by oral agreement dated
18.11.1987 from its previous owner late Annaiah,
Thimmaiah, Babu Reddy and Sathyavathi by paying valuable
consideration and plaintiff was put in possession of site No.7
by its vendors on the date of alleged oral agreement dated
18.11.1987 and since 18.11.1987 plaintiff claims to have in
possession and enjoyment of site No.7 carved out in
Sy.No.5/3 and among 9 sites, site No.1 and 2 are retained by
Smt. Sathyavathi, defendant No.2 who was original owner of
site No.1 and 2 and site No.3 was sold to defendant No.1,
wherein site No.2 sold to 3rd party and site No.5 and 6 were
sold to one Bharath Bhat , who is the brother of 1st defendant
and site No.7 is in possession of plaintiff and site No.8 was
sold to one Rajanna and site No.9 is with one
Venkataramanappa and all these sites formed in Sy.No.5.3
were measuring 40 X 30 respectively, which are situated
adjacent to each other. Hence, plaintiff claims to be in
possession and enjoyment of site No.7 in Sy.No.5/3 of
Roopena Agrahara Village,, wherein defendant No.1 started to
interfere in the possession of the plaintiff in respect of site
No.7 and also tried to dispossess the plaintiff from site No.7.
Hence, plaintiff alleging cause of action has pleaded in para
17 O.S.No.640/2002
No.9 of the plaint has filed this suit for bare injunction relief
against defendant No.1 initially and subsequently defendant
No.2 has been added by impleading 2nd defendant by the
plaintiff and accordingly, defendant No.2 is arrayed in this
case. The plaintiff has filed I.A.No.4 under Order 1 Rule 10 of
CPC seeking impleading of Smt. Sathyavathi wife of
Aswathanarayana Reddy as party defendant No.2 and
accordingly, I.A.No.4 filed by the plaintiff came to be allowed
and defendant No.2 is added in this suit. Defendant No.1
filed written statement and contested the suit filed by the
plaintiff, wherein defendant No.1 denied the alleged
possession of the plaintiff in respect of site No.7 in Sy.No.5/3
and also denied alleged oral agreement in respect of
purchase of site No.7 of the plaintiff with Smt.Sathyavathi
and other owners of site No.7 of late Annaiah and his
brother Baby Reddy and on the contrary, 1st defendant has
taken specific defense that defendant No.2 was allotted site
No.1 to 3 in a partition held amongst defendant No.3 and
other sharers vide registered partition deed dated 17.6.1999,
wherein site No. 1to 3 are allotted to the share of
Smt. Sathyavathi, who was the wife of late Aswathnarayana
Reddy and as per registered partition, site No.1 to 3 are
retained by Smt. Sathyavathi and hence, question of
defendant No.1 alienating site No.7 in favour of plaintiff
either on 18.11.1987 or on 21.4.2007 does not arises and
18 O.S.No.640/2002
also defendant No.1 denied the possession of plaintiff since
18.11.1987 in respect of site No.7, but on the contrary,
defendant No.1 specifically contended that site No.7 belong
to his brother B.Bharath Bhat, who has purchased site No.7
in Sy.No.5/9 which is corresponding to Sy.No.5/3 and there
was layout plan formed in respect of laying of sites in
Sy.No.5/9 , wherein the said land measuring 1 acre 30
guntas and in all 29 sites have been formed therein and as
such, defendant No.1 contended that his brother Babu
Reddy is the owner and in possession of site No.7 and
defendant No.1 being the owner of site No.8 and hence,
defendant No.1 denied the alleged possession of plaintiff in
respect of site No.7 and it is specifically contended that the
plaintiff has no cause of action to file the suit and also suit is
filed after delay of more than one year and cause of action is
imaginary and no prudent person shall approach the court of
law for restraining his wrong doer after one year of alleged
cause of action. Hence, the alleged possession is based on
contradictory pleadings and oral evidence and at one breath,
plaintiff alleges his possession under oral agreement and
another breath, his contention is in possession of site No.7
under GPA, wherein no GPA is produced by the plaintiff and
Ex.P.1 relied by the plaintiff does not speak about any
agreement orally and written. Hence, plaintiff is not the
owner nor in possession of suit schedule property and as per
19 O.S.No.640/2002
the partition( registered partition deed dated 17.6.1999) other
than site No.1, 2 and 3 as per the said partition deed. The
2nd defendant does not have any right, title and interest and
therefore, question of plaintiff purchasing the suit schedule
property from 2nd defendant does not arises and alleged sale
deed Ex.P.1 dated 21.7.2004 is subsequent document after
filing of the suit. Hence, plaintiff failed to prove his possession
under Ex.P.1 sale deed cannot be looked into and suit filed
by the plaintiff is not maintainable and site No.7 belongs one
Sri. B.Bharath Bhat, who is the brother of 1st defendant and
the same is on the northern side of 1st defendant site and site
No.7 belongs to B.Bharath Bhat was subsequently
fragmented into two portion and one portion was sold to
Mr.G.Stanley on 3.12.2007 and another portion was sold to
Smt. Hanumakka on 3.12.2007 and the purchasers of site
No.7 after effecting two divisions are not made as party in
this case, whereas the suit is filed against 1st defendant in
order to grab the suit schedule property. Hence, plaintiff has
not produced any tangible or cogent evidence either oral
documentary to prove his lawful possession in respect of site
No.7 as on the date of suit. Hence, 1st defendant resisted the
suit and pray for dismissal of the suit.
20 O.S.No.640/2002
9. Defendant No.2 though served with summons, but she
remained absent in this suit and accordingly, defendant No.2
is placed exparte.
10. In order to prove their respective cases, the parties
to the suit have adduced their respective oral and
documentary evidence , wherein plaintiff himself is examined
as P.W.1 and got marked Ex.P.1 to P.19 and P.W.1 deposed
his oral evidence through affidavit filed in lieu of examination-
in-chief and on perusal of the evidence of P.W.1, wherein he
has deposed that as per the oral agreement, he purchased
site No.7 in Sy.No.5/3 of Roopena Agrahara Village, on
18.11.1987 for valuable consideration and he was put in
possession of site No.7 as described in the plaint schedule
within the boundaries shown in the pc site measuring 40 X
30 ft., Hence, P.W.1 deposed that defendant No.2 has
executed sale deed in his favour on 21.7.2004 and he has
paid betterment charges and also paying tax to the schedule
property and he has obtained Anubhavdar katha issued in
respect of site No.7 by C.M.C and hence, P.W.1 deposed in
his oral evidence by reiterating the plaint contents through
oral evidence and also got marked Ex.P.1 to P.19 in his oral
evidence consisting of following documents marked in the
evidence of P.W.1 are as follows:-
21 O.S.No.640/2002
Ex.P.1 is the sale deed dated 21.7.2004, Ex.P.2 to P.7
are the tax paid receipts, Ex.P.8 is the assessment list for
the year 1998-1999, Ex.P.9 is extract of building and
house sites allotted by BBMP for the year 2008-2009,
Ex.P.10 is the katha certificate and Ex.P.11 to P.13 are
the three photograph of suit schedule property, Ex.P.11(a)
to P.13(a) are the negatives of photos, Ex.P.14 is the
endorsement given by Madiwala Police Station dated
11.11.2007, Ex.P.15 I the S.P.A dated 6.6.2014 executed
by plaintiff in favour of Ramakrishna , Ex.P.16 is the
property tax dated 28.2.2012, Ex.P.17 is the property tax
receipt dated 4.7.2013, Ex.P.18 is the property tax receipt
dated 4.7.2013 and Ex.P.19 is the power sanction letter
by electricity corporation.
Hence, P.W.1 relying upon his oral evidence coupled with
Ex.P.1 to P.19, pray for grant of decree for permanent
injunction against defendant No.1 and 2.
11. The counsel appearing for defendant No.1 cross
examined to P.W.1 on 26.11.2009, wherein P.W.1 denied that
his contention of purchase of schedule site under oral
agreement dated 18.11.1987 is not legally tenable in law and
P.W.1 denied that he is not in possession of suit schedule site
and he denied his knowledge that in Sy.No.5/3, totally 28
sites have been formed in the said land and he further denied
22 O.S.No.640/2002
that 2nd defendant had retained three site in her name a site
No.1, 2 and 3 and P.W.1 denied that 1st defendant is
residing in site No.3 by deposing false evidence and P.W.1
denied his knowledge that wife of 1st defendant by purchasing
site No.4 is residing by constructing house and further
P.W.1 denied that site No.5 was purchased by one Peersab
and residing by constructing house in site No.5 and he denied
that site No.6 and 7 are purchased by B.Bharath Bhat , who
is the brother of 1st defendant herein and P.W.1 denied that
on 3.12.2007 site No.7 was effected into two divisions as
northern and southern portion measuring 40 X 15 ft., by
one Smt. Vidya Bharath Bhat in favour of Mr.G.Stanley and
northern portion measuring 40 X 15 ft., in site No.7 was sold
in favour of one Smt. Hanumakka and P.W.1 denied that 1st
defendant had purchased site No.8 in the year 1987 from
late Annaiah, his brother Babu Reddy and defendant No.2
Smt. Sathyavathi and he is in possession of site No.8 and
P.W.1 denied his knowledge that 1st defendant had filed the
suit against defendant No.2 in O.S. No. 5692/2005 in respect
of site No.8 and had obtained status-quo order in that suit
and P.W.1 denied that he has no right, title and interest in
respect of site No.7 and P.W.1 stated that in respect of site
No. 2 and 8, 1st defendant alleging interference to his
possession has filed complaint before Madiwala Police
Station, which is registered in C.C.No. 22035/2007 and
23 O.S.No.640/2002
P.W.1 stated that the said criminal case is lodged on false
facts and P.W.1 denied the suggestion that 1st defendant
had filed another criminal case against his son Babu Reddy
in respect of site No.8 on the allegations that his son has
caused interference on 27.5.2004 and P.W.1 denied the
pendency of C.C.No.14616/2006 against his son namely
Babu Reddy. P.W.1 denied that he is not in possession of
suit schedule property when the suit was filed and he further
denied that he has no right, title and interest in respect of
site No.7 and he has filed this false case against 1st defendant
and P.W.1 denied that he has created revenue documents for
the purpose of the suit and he further denied that 2nd
defendant has no authority to execute Ex.P.1 in respect of
site No.7 and he denied that 2nd defendant was allotted site
No.1, 2 and 3 in the registered partition and P.W.1 also
denied that Sy.No.5/9 and 5/3 of Roopena Agrahara Village,
Begur Hobli are one and the same properties and P.W.1
denied that he has filed a false case against defendant No.1
and P.W.1 admits that towards south of site No.7 one
Venkataramanappa was in possession and thereafter, one
Rajanna came in possession of the southern property and
P.W.1 denied that in site No.8 1st defendant has erected shed
and P.W.1 denied that he is falsely claiming the share
belongs to defendant No.1 in existence in site No.8 and
P.W.1 denied that as per Ex.P.9, site No.7 shown as vacant
24 O.S.No.640/2002
site and P.W.1 further denied that he got created revenue
documents as one Gopal was working in C.M.C,
Bommanahalli and revenue documents have been created by
his influence.
12. P.W.1 further cross-examined on 19.12.2009,
wherein P.W.1 admits that there is no power connection to
the schedule property and likewise no water connection to the
schedule property and P.W.1 denied that after demise of
Annaiah, he has filed this false suit in collusion with
defendant No.2, who is related to him and P.W.1 denied that
2nd defendant had filed a suit alleging that 1st defendant had
demolished the northern compound wall in respect of site
No.8 and lodged criminal case and P.W.1 denied that he has
filed this false suit only in order to harass defendant No.1 and
he further denied that site No.8 belong to 1st defendant.
13. P.W.1 further got examined on 8.4.2010 and got
marked Ex.P.11 to P.13 3 photographs and their negatives as
per Ex.P.11 to P.13 and police endorsement dated 11.11.2001
is marked at Ex.P.14 and again defendant counsel cross
examined P.W.1 on 4.6.2010, wherein P.W.1 admits that he
has not given office copy of complaint pertaining to Ex.P.14
and he denied that he has created Ex.P.14 for the purpose of
this case and he admits that Ex.P.11 to P.13 in these
25 O.S.No.640/2002
photographs only shed erected by putting sheets is shown
and there is no house property shown in these photographs
and P.W.1 denied that 1st defendant has filed a suit against
defendant No2. in O.S. No.5692/2005 and had obtained
injunction order and he also denied his knowledge about
pendency of interim application filed under Order 39 Rule 2A
and he denied that Ex.P.11 to P.13 are pertaining to site No.8
and not belonging to site No.7 and P.W.1 admits that there
was no sale deed, when the suit was filed in his favour, but
P.W.1 stated that in the year 1987, there was GPA document
came to be executed , but he admits that he has not
produced the alleged GPA and he admits that the shed has
visible in Ex.P.11 to P.13 is constructed of cement block.
14. P.W.1 further cross-examined on 15.12.2011 and got
marked certain documents by producing three tax paid
receipts as per Ex.P.16 to P.18 and also electricity
connection given by KPTCL authority i.e., estimation bill
issued by KPTCL is marked at Ex.P.19.
15. The counsel for defendant No.1 further cross-
examined P.W.1 on 28.7.2015, wherein P.W.1 admit that he
is deposing on behalf of original plaintiff on the strength of
power of attorney executed in his favour and P.W.1 also
26 O.S.No.640/2002
further admits that plaintiff is residing at Kotaa
Hulimangalam in State of Tamilnadu , wherein the on of
plaintiff is residing at Bengaluru and P.W.1 stated that he
do not know the boundaries of the schedule property at
present and he has produced at Ex.P.16 to P.18 in order to
show that plaintiff has paid tax to the corporation for the year
2012-2013 and plaintiff is having custody of other tax paid
receipts for the previous year also and P.W.1 admits that
Ex.P.16 to P.18 produced on record are pertaining to site No.7
and he further admits Ex.P.17 and P.18 are the tax paid
receipt paid 4.7.2013 respectively and P.W.1 denied that after
the year 2002 till payment of tax as on 4.7.2013, the plaintiff
has not paid tax to the corporation and P.W.1 admits that in
Ex.P.19, this document is in respect of site No.7 issued by
BESCOM authority. P.W.1 denied that site No.7 belongs to
some other person. Hence, question of defendant No.1
causing any obstruction to the plaintiff's alleged possession
does not arises and P.W.1 voluntarily stated that site No.7
belongs to plaintiff herein and he denied the suggestion that
suit site No.7 not belonging to plaintiff and witness/P.W.1
denied his knowledge about bifurcation of site No.7 as it was
divided into two portions and in one portion purchaser Smt.
Hanumakka is residing, in another portion one
Mr.G.Stanley is residing and he do not know whether
BERSCOM authority sanctioned electric meter(RR number)
27 O.S.No.640/2002
of site No.7 by retaining of the copy of the sale deed
furnished by Mr.G.Stanley and P.W.1 denied the
suggestion that he has filed false suit against wrong person
16. First defendant has given rebuttal evidence as he has
filed affidavit evidence filed in lieu of examination-in-chief
under Order 18 Rule 4 of CPC , wherein on perusal of the
evidence of D.W.1, wherein this witness has stated that 2nd
defendant i.e., Smt. Sathyavathi was retained site No.1, 2
and 3 as allotted to her as per registered partition deed dated
17.6.1999 and other than site No.,1, 2 and 3, 2nd defendant
was not having any right, title and interest over any other
sites formed in Sy.No.5/3 of Roopena Agrahara Village, Begur
Hobli, Bengaluru South Taluk as the layout was formed by
Babu Reddy and sale deed relied by the plaintiff dated
21.7.2004 as per Ex.P.1 is subsequent to the filing of the
suit and as such, the said document cannot be looked into
and katha extract, tax paid receipt and other documents
relied by the plaintiff are not admissible piece of evidence as
per Ex.P.1 has no sanctity or validity and 2nd defendant
was never having any right, title and interest over site No.7
and D.W.1 denied the possession of claim of title over site
No.7 by the plaintiff and on the contrary, D.W.1 deposed that
site No.7 actually belongs to his brother B.Bharath Bhat and
the same is on the northern side of site No.8 and site No.7
28 O.S.No.640/2002
belongs to his brother ha been sold by division of site No.7
into two portions, wherein one portion I sold in favour of
Smt. Hanumakka by virtue of sale deed dated 3.12.2007
respectively and D.W.1 further stated that Sy.No.5/9 and
5/3 belong to one and the same property and pertaining to
the original owners namely deceased Sri.Annaiah, Babu
Reddy and deceased husband of 2nd defendant and D.W.1
further deposed that in entire extent of 1 acre 30 guntas ,
late Sri.Annaiah had formed layout in Sy.No.5/9 of
measurement 30 X 40 ft., by forming 29 sites and site No. 1
to 29 were formed in an area measuring 1 acre 30 guntas
and site No.1, 2 and 3 are in the possession of
Smt. Sathyavathi i.e., defendant No.2, who is daughter-in-
law of late Sri.Annaiah and D.W.1 relied upon a registered
partition deed dated 17.6.1999 and also he has relied upon
original sketch in respect of formation of sites in Sy.No.5/9.
Hence, D.W.1 stated that site No. 6 and 7 are in the
possession of his brother B.Bharath Bhat and site No.8 is
purchased by defendant No.1 and it is in his possession and
D.W.1 further deposed that the property previously comes
under Bommanahalli C.M.C jurisdiction and now presently
site No.7 is coming under the jurisdiction of BBMP and D.W.1
deposed that Smt. Sathyavathi and her sons one Sreedhar
and Mahesh are also fighting partition deed filed against
Smt. Susheela, wife of Late Babu Reddy , who is the 2nd son
29 O.S.No.640/2002
of late Sri.Annaiah over property bearing Sy.No.5/9 of late
Sri.Annaiah in O.S. No. 6278/2004 before the City Civil
Judge at Bengaluru and the said partition suit is pending
and D.W.1 stated that if plaintiff has got any claim in
respect of site No.7, he should file suit against his brother
namely B.Bharath Bhat and make him a defendant and not
against 1st defendant, whereas 1st defendant is the owner of
site No.8 in Sy.No.5/9. Hence, on perusal of the affidavit
evidence filed by 1st defendant, wherein he has denied the
entire case pleaded by the plaintiff and also denied alleged
interference and alleged dispossession of the plaintiff from the
schedule property and P.W.1 further deposed that defendant
No.2, who is amongst the original executors of site No.8 as
she is trying to laying false claim over site No.8 and as such,
he has filed the suit for injunction in the court of Additional
Civil Judge, Bengaluru in O.S. No.5692/2005 and obtained
interim order of status-quo and D.W.1 also made reference
regarding defendant No.2 threatened his possession over site
No.8 on 21.5.2004 and in this regard police complaint was
lodged before Madiwala Police Station, Bengaluru and police
authorities have made detailed enquiry by issuing notice to
plaintiff herein and himself and also filed a case under Sec.
160 of Cr.P.C and thereafter registered case against plaintiff'
s on Ramakrishna for the office punishable under Sec. 448,
427 read with Sec.34 of IPC. Hence, it clearly shows that
30 O.S.No.640/2002
plaintiff has not approached this court with clean hands and
hence, D.W.1 in his rebuttal evidence denied the case of the
plaintiff and also denied his possession over the suit site
No.7. Hence, D.W.1 further examined and got marked Ex.D.1
to D.21 and D.W.1 relied upon documents Ex.D.1 to D.21,
which are extracted as below:-
Ex.D.1 is the tax paid receipt dated 16.8.2009, Ex.D.2
to Ex.D.4 are the three demand notices sent by BWSSB,
Ex.D.5 is the tax paid receipt of BBMP dated 2.3.2008,
Ex.D.6 is the office copy of application given to BBMP, Ex.D.7
I the receipt given by C.M.C, Bommanahalli, dated 12.4.2008,
Ex.D.8 is the certified copy of partition deed dated
17.6.1999, Ex.D.9 is the certified copy of sale deed dated
30.8.2006, Ex.D.10 is the certified copy of sale deed dated
3.12.2007, Ex.D.11 is the certified copy of sale deed dated
3.10.2007, Ex.D.12 is the certified copy of order sheet in O.S.
No.5692/2005, Ex.D.13 is the layout map of Sy.No.5/9,
Ex.D.14 is the certified copy of judgment in O.S. No.
6278/2004 dated 4.3.2013, Ex.D.15 and Ex.D.16 are the
memorandum of settlement and decree in O.S. No.5692/2005
of CCH No.16, Ex.D.17 is the certified copy of FIR registered
before Madiwala Police Station in Cr.No.451/2007 and other
concerned certified copy papers, Ex.D.18 is the certified
copy of mahazar dated 9.8.2007, Ex.D.19 is the deed of
confirmation dated 16.4.2012, Ex.D.20 is the katha extract
31 O.S.No.640/2002
issued by BBMP, Ex.D.21 is the two tax paid receipt dated
27.2.2012.
Hence, D.W.1 by hi oral evidence coupled with Ex.D.1 to
Ex.D.21 pray for dismissal of the suit filed by the plaintiff.
17. The counsel appearing for the plaintiff cross
examined D.W.1 initially on 19.11.2010, wherein D.W.1
admits that in Sy.No.5/3 himself, his wife and his brother
B.Bharath Bhat have purchased 3 sites separately and sale
deed was executed in the year 1988 in his favour , but he do
not remember the sale deeds registered in his wife's name
and also in the name of his brother and D.W.1 stated that
the sale deed executed in his favour is not yet registered and
D.W.1 denied that the alleged sale agreement or alleged
sale deed or GPA do not reveals about handing over of
possession and D.W.1 denied that himself, his wife and his
brother have not yet handed over possession in respect of
property purchased out of Sy.No.5/3 and D.W.1 stated that
the GPA and affidavit are executed by Sri.Annaiah, Babu
Reddy and defendant No.2 and he admits that Sri.Annaiah
and Babu Reddy have died long years ago as Sri.Annaiah
died prior to 1999 and Babu Reddy died after Ex.D.8
partition deed and D.W.1 admits that neither Sri.Annaiah
nor Babu Reddy and defendant No.2 so far have not executed
32 O.S.No.640/2002
sale deed in favour of his wife and his brother and D.W.1
admits that he has not filed any suit for prima facie case and
D.W.1 further stated that his wife Smt. Jyothi Bhat is the
owner of site No.4 whereas his brother B.Bharath Bhat is the
owner of site No.6 and 7 and he is the owner of site No.8
and D.W.1 deposed that these sites, which were sold to him,
his wife and his brother are revenue sites and as such, there
are no sale deeds registered in respect of site No.4, 6, 7 and
8 and D.W.1 admits that Smt. Vidya Bharat Bhat is related
to him and D.W.1 further admit that the brother of Smt.
Vidya Bharat Bhat had given two sites by execution of
registered sale deed and D.W.1 admits that he is practicing
advocate and he ha verified documents of sites, but he do not
remember his brother, whether he has verified documents of
title in respect of site and D.W.1 admits that he has prepared
GPA one executed by his relatives Smt. Vidya Bharat Bhat in
favour of his wife and D.W.1 stated that Ex.D.10 and Ex.D.
11 are not prepared by him and D.W.1 further stated that his
wife is educated and she need no instructions from anybody
and D.W.1 partly admits that Babu Reddy and his relative
one Sri.Annaiah have died prior to execution of sale deed in
favour of his brother and his wife and D.W.1 admits about
boundaries in respect of site No.8 towards east the site of
Pillareddy, towards west road, towards north site of
B.Bharath Bhat' site No.7 and towards south site of one
33 O.S.No.640/2002
Rajanna and in respect of site No.4, the boundaries given by
this witness is towards east the land of others, west road,
north site of Smt. Sathyavathi and towards south site of
Peersab and D.W.1 admits that Roopena Agrahara Village,
and Kodichikkanahalli these two villages are different each
other as shown in Ex.D.3 and Ex.D.4 and D.W.1 admits that
as per Ex.D.8 partition deed Smt. Sathyavathi allotted site
No.1, 2 and 3 and he is not in possession of site No.7, but he
denied the suggestion that site No.7 belong to plaintiff herein,
site No.4 belong to his wife Smt. Jyothi Bhat and site No.3 is
in possession of defendant No.2 and he admits that he has
no right, title and interest nor possession in respect of site
No.7 , but he denied that hi brother and his wife do not have
any interest in respect of site No.7 and he denied that his
brother and his wife did not have pod site No.7 from its
previous owners and D.W.1 confronted with photographs
containing the photographs of himself and his wife and
witness admits the said photographs and it is marked at
Ex.D.14 and D.W.1 denied the suggestion that previous
owners of schedule site No.7 namely Babu Reddy and
Sri.Annaiah nor defendant No.2 have not executed any sale
deed either in his favour, his brother nor his wife in respect of
site No.7 and another photograph is confronted to witness
D.W.1 stating that it refers to site No.7, but witness D.W.1
stated that this photographs is in respect of site No.8 and it
34 O.S.No.640/2002
is marked at Ex.D.15 and D.W.1 denied that site No.8 is in
the possession of one Rajanna and D.W.1 voluntarily stated
that he is in possession of site No.8 and D.W.1 also admits
that in respect of site No.8, he has not produced sale deed
as there is no registration of sale deed in his name and D.W.1
denied the remaining cross-examination directed to the
witness.
18. D.W.1 filed additional chief examination affidavit
and got marked Ex.D.14 to Ex.D.21 in respect of O.S. No.
6278/2004 i.e., judgment copy dated 4.3.2013 and also
memorandum of settlement in O.S. No.5692/2005 and decree
copy of CCH No.16 and certified copy of FIR registered before
Madiwala Police Station in Cr.No.451/2007 and other
connected documents like copy of mahazar dated 9.8.2007 and
deed of confirmation dated 16.4.2012 marked at Ex.D.19 and
katha extract issued by BBMP and tax paid receipts( two in
number) dated 27.2.2012 are marked at Ex.D.20 and Ex.D.21
regarding marking of two photographs marked as per Ex.D.14
and Ex.D.15 in the cross-examination of D.W.1, wherein
Ex.D.14 and Ex.D.15 are marked in the examination chief of
D.W.1. Hence there is some discrepancy appearing in marking
of Ex.D.14 and Ex.D.15.
35 O.S.No.640/2002
19. The counsel for the plaintiff further cross-examined
to D.W.1, wherein he denied that Ex.D.14 is no way concerned
to the schedule property of this case and also plaintiff is not
party to O.S. No. 6278/2004 and he denied that Ex.D.15 the
present plaintiff is not party to the suit and alleged
settlement is no way concerned to the plaintiff. However,
D.W.1 admits that in O.S. No. 6278/2004 and in O.S.
No.5692/2005 the present plaintiff is not arrayed as party and
D.W.1 stated that he do not know whether Ex.D.17 produced
by him is no way concerned to the plaintiff and he admits that
Ex.D.18 there is no reference of site No.7 and also name of the
plaintiff is not appearing in Ex.D.18 and he admits that
Ex.D.17 and 18 i.e., FIR and mahazar documents are not
concerned to the plaintiff and Ex.D.19 produced by him is
pertaining to site No.8 and not pertaining to site No.7 and he
admits that in Ex.D.19 as per Clause No. 4 there is reference in
respect of plaintiff of the suit and site No.7 and further Clause
No.4 of Ex.D.19 is unregistered document and he denied that
Ex.D.20 is not a genuine document issued by BBMP authority
and he admits that he has paid tax to site No.8 to BBMP and
he also admits that the documents produced by him in the suit
are not pertaining to site No.7, whereas these documents are
pertaining to site No.8 and he also admits that document
produced by him in this suit on 16.8.2013 are pertaining to
36 O.S.No.640/2002
site No.7 and now documents filed by him on 9.1.2014 are
also pertaining to site No.8.
20. After appreciation of the oral evidence placed on
record by P.W.1 initially and that of his son Ramakrishna
deposed on the strength of S.P.A produced as per Ex.P.15 and
considering the evidence of D.W.1 and documentary evidence
marked through D.W.1, wherein the plaintiff has relied upon
Ex.P.1 in order to lay claim of title and possession in respect of
suit site No.7 said to have been formed in Sy.No.5/3,
Bommanahalli, Nagarasabha Katha No.172/5/3/7 situated at
Roopena Agrahara Village,, Begur Hobli, Bengaluru South
Taluk measuring 40 X 30 ft., in all measuring 1200 square
feet, but this document Ex.P.1 is obtained by plaintiff through
defendant No.2 and her two sons Sreedhar and Mahesh
respectively during pendency of the suit on 21.7.2004 and
plaintiff got marked documents produced and marked as per
Ex.P.2 to P.10 which are documents maintained in the office of
C.M.C, Bommanahalli and plaintiff has produced katha
certificate, Ex.P.16 for the year 2008 and on the contrary, by
perusal of documents produced by D.W.1, wherein defendant
No.1 is the owner of site No.8 and Ex.D.8 is the certified copy
of registered partition deed held between defendant No.2 i.e.,
Smt. Sathyavathi , who was party No.1, who is daughter-in-law
of late Sri.Annaiah and as per this registered partition deed
37 O.S.No.640/2002
held on 17.6.1999, wherein defendant No.2 i.e.,
Smt. Sathyavathi was allotted with site No.1, 2 and 3 formed
in Sy.No.5/3 of Roopena Agrahara Village, and further
document Ex.D.9 a sale deed executed by defendant No.2
along with her sons in respect of site No.18 executed in favour
of Smt. R.Vijayamma wife of R.Gopala Naidu, wherein
defendant No.2 along with her sons executed the sale deed in
respect of site No.18 dated 30.8.2006 and Ex.D.10 and
Ex.D.11 are sale deeds in respect of one Smt. Hanumakka
executed by Smt. Vidya Bharat Bhat through her GPA holder
Smt. Jyothi Bhat and Ex.D.11 is in respect of portion of site
No.7 executed by Smt. Vidya Bharat Bhat in favour of
Mr.G.Stanley, wherein these two documents shows that 7
divided into two divisions as southern portion and Ex.D.10
and Ex.D.11 is in respect of sale of property by two parts of 7
by southern and northern portion measuring 40 X 15 ft.,,
respectively on 3.12.2007 and Ex.D.12 is the certified copy of
order sheet, wherein defendant No.1 had filed the suit against
defendant No.2 for injunction in O.S. No.5692/2005 on the file
of City Civil Judge, Bengaluru and there is order of status-quo
passed on 2.8.2005 and further interim order was extended in
the said suit from time to time, Ex.D.13 is the sketch
regarding formation of sites in Sy.No.5/9 of Roopena Agrahara
Village. However this sketch has been marked subject to
objections of plaintiff, but plaintiff has not produced any
38 O.S.No.640/2002
rebuttal sketch to show that in Sy.No.5/9 or in Sy.No.5/3,
there are only 9 sites formed by the owners of the said land.
Hence, there is available sketch produced by defendant No.1 to
show that there are 28 sites formed in Sy.No.5/3 or 5/9 by the
erstwhile owners namely Sri.Annaiah, Babu Reddy and
husband of defendant No.2 by forming revenue sites, wherein
defendant No.2 sold site No.18 as per Ex.D.9, the sale deed in
favour of Smt.Vijayamma in respect of site No.18 . Hence, this
sketch relied by D.W.1 though it is not approved sketch map,
but un view of Ex.D.9 sale deed, it can be safely held that
there are about 28 sites have been formed in Sy.No.5/3
corresponding to Sy.No.5/9 of Roopena Agrahara Village,
Begur Hobli, Bengaluru South Taluk and Ex.D.14 is the
certified copy of judgment in O.S. No. 6278/2004, wherein it is
the suit filed by sons of defendant No.2 against Smt. Susheela
wife of late Babu Reddy and others for the relief of partition
and separate possession and in this Ex.D.14, the partition
relief sought by the sons of defendant No.2 is dismissed by the
1st Additional City Civil Judge, Bengaluru by upholding the
registered partition deed dated 17.6.1999, wherein the said
partition deed (certified copy) produced as per Ex.D.14 was
marked at Ex.D.1 and the said Ex.D.1 dated 17.6.1999,
wherein there was registered partition between
Smt. Sathyavathi i.e., defendant No.2 herein and one Babu
Reddy i.e., husband of 1st defendant and Smt. Susheelamma.
39 O.S.No.640/2002
Hence, Ex.D.8 was proved in the previous litigation, wherein
defendant No.2 was allotted with site No.1, 2 and 3 formed in
Sy.No.5/3 corresponding to Sy.No.5/9 and a. defendant No.2
was not having any right, title and interest over any other sites
formed in Sy.No.5/3 other than site No.1, 2 and 3. Hence, the
claim of plaintiff relied in this case that he has purchased site
No.7 from defendant No.2 under oral agreement and also
under Ex.P.1 is not admissible claim, wherein as per
registered partition deed Ex.D.8 only site No.1, 2 and 3 are
fallen to the share of Smt. Sathyavathi , who is defendant No.2
in this case and as per Ex.D.19 relied by D.W.1, wherein, this
is deed of confirmation, wherein defendant No.2 and her sons
are party to this document, wherein as per Clause No.5 of this
Ex.D.19, it is clearly stated that the plaintiff of this suit is not
in possession of either site No.7 or site No.8 in the above
mentioned layout and though it is registered document, but
plaintiff has not objected for marking of Ex.D.19. Hence, a per
Ex.D.8 i.e., certified copy of registered partition deed dated
17.6.1999, wherein it is amply proved that defendant No.2 was
holding only 3 sites in her name i.e., site No.1, 2 and 3 and as
such, the claim of plaintiff relying title and possession in
respect of site No.7, wherein defendant No.2 herself was not
having title and possession in respect of site No.7 and hence,
defendant No.2 and her sons executing sale deed as per Ex.P.1
does not arises and as such, Ex.P.1 relied by the plaintiff is
40 O.S.No.640/2002
after filing of the suit and also during pendency of the partition
suit filed by sons of defendant No.2 and as such, Ex.P.1 is
the subsequent sale deed got produced by the plaintiff from
defendant No.2 and her sons, who are having no right, title and
interest to execute the sale deed and on the contrary,
defendant No.1 is the owner of site No.8 and his brother
B.Bharath Bhat is the owner of site No.6 and 7 and already
site No.7 was sold by effecting two divisions in favour of
Smt.Hanumakka and Mr.G.Stanley by sale deed dated
3.12.2007 and hence, the present suit brought by the plaintiff
for the relief of bare injunction is not maintainable and as
such, plaintiff failed to prove his possession in respect of site
No.7 as on the date of suit or subsequent to the date of suit.
Hence, Ex.P.1 is not reliable document to establish title of the
plaintiff in respect of site No.7. On the contrary, the suit filed
by the plaintiff appears to be on created and imaginary cause
of action and hence, plaintiff utterly failed to prove Issue No.1
and 2 as against defendant No.1 and in view of documentary
evidence produced by D.W.1, but in Ex.D.8, Ex.D.10 and
Ex.D.11 and Ex.D.19, wherein the case of the plaintiff for bare
injunction relief is not maintainable and as such, plaintiff
failed to prove his possession in respect of site No.7 and on the
contrary, as per Ex.D.10, and Ex.D.11 the purchasers are in
possession of site No.7 formed in Sy.No.5/3. Hence, Issue No.1
and 2 are answered in negative against plaintiff.
41 O.S.No.640/2002
21. Issue No.3: In view of my findings on Issue No.1
and 2, the plaintiff is not entitled for the relief of permanent
injunction and suit filed by the plaintiff in the present form is
not maintainable and plaintiff also approached this court after
lapse of more than one year on the alleged date of cause of
action. Hence, plaintiff failed to prove alleged interference in
respect of suit schedule property by defendant No.1.
Accordingly, Issue No.3 is answered in negative.
22. Issue No.4: In view of my findings on Issue No.1 to
3, the suit filed by the plaintiff deserves to be dismissed.
Hence, I proceed to pass the following:-
ORDER
The suit filed by the plaintiff is dismissed. However, in the facts and circumstances, there is no order as to costs.
Draw decree accordingly.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 29th day of October, 2015.} (S.V.Kulkarni) XI Addl.City Civil Judge Bangalore city.
42 O.S.No.640/2002ANNEXURE List of witnesses examined for plaintiff:-
P.W.1 Sri. U.H.Muni Reddy List of documents exhibited for plaintiff:-
Ex.P.1 Sale deed dated:21/7/2004 Ex.P.2 to 6 Tax paid receipts Ex.P.7 Self assessment declaration form dated 30.5.2007 Ex.P.8: Extract of building and land as per assessment dated 11.8.2004 Ex.P.9: Extract of building and open sites for the year 2008-2009 dated 29.8.2008 Ex.P.10 Certificate issued by ARO, Bruhat Bengaluru Mahanagara Palike dated 29.8.2008 Ex.P.11 to P.13 Photos Ex.P.14: Endorsement given by Madiwala Police Station dated 11.11.2007 Ex.P.15: S.P.A dated 6.6.2014 executed by plaintiff in favour of his son Ramakrishna Ex.P.16: Property tax receipt dated 28.2.2012 Ex.P.17: Property tax receipt dated 4.7.2013 Ex.P.18: Property tax receipt dated 4.7.2013 43 O.S.No.640/2002 Ex.P.19: Power sanction letter by electricity authority.
List of witnesses examined for defendant:
D.W.1 Sri. B.Prakah Bhat List of documents exhibited for defendant:-
Ex.D1 Tax paid receipt dated 16./8.2009 Ex.D.2 to 4 Three demand notices sent by BWSSB Ex.D5 Tax paid receipt of BBMP dated
2.3.2008 Ex.D6 Office copy of application given to BBMP Ex.D7 Receipt issued by CMC, Bommanahalli, dated:12/4/2008 Ex.D8 Certified copy of partition deed dated:17/6/1990 Ex.D9 Certified copy of sale deed dated:
30/8/2006 Ex.D10 Sale deed dated:3/12/2007 Ex.D11 Sale deed dated: 3/12/2007 Ex.D12 Certified copy of order sheet in O.S.No. 5692/2005 Ex.D13 Layout sketch in respect of Sy.No. 5/9 Ex.D.14 Certified copy of judgment in O.S. No. 6278/2004 dated 4.3.2013 44 O.S.No.640/2002 Ex.D.15 & 16: Memorandum of settlement and decree in O.S. No.5290/2005 of CCH No.16 Ex.D.17: Certified copy of FIR registered before the Madiwala Police Station in Cr.No.451/2007 and other concerned papers.
Ex.D.18 Certified copy of mahazar dated 9.8.2007 Ex.D.19 Deed of confirmation dated 16.4.2012 Ex.D.20 Katha extract issued by BBMP Ex.D.21: Two tax paid receipt dated 28.2.2012.
(S.V.Kulkarni) XI Addl.City Civil Judge Bangalore city.
45 O.S.No.640/2002 46 O.S.No.640/2002 47 O.S.No.640/2002