Bangalore District Court
Smt.Snehalatha Kholay vs Sri.K.Nagaraj on 13 December, 2019
1
O.S. No. 25872/2014
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH74)
Present: Sri.YAMANAPPA BAMMANAGI,
B.A., LL.B., (Spl.,)
LXXIII ADDL.CITY CIVIL & SESSIONS JUDGE.
Dated this the 13th day of December, 2019.
O.S. No.25872/2014
Plaintiff: Smt.Snehalatha Kholay,
W/o.Sri.H.C.Kholay, aged about
68 yrs, R/at.No.53, 27th Main
Road, I Cross, BTM I Stage,
Bengaluru560068.
(By Sri.Anil Kumar Shetty - Adv.)
V/S
Defendants: 1. Sri.K.Nagaraj,
S/o.Sri.Krishnappa, aged about
52 yrs,
2. Sri.K.Ramaiah,
S/o.Sri.Krishnappa, aged about
55 yrs,
3. Sri.K.Ashwath,
S/o.Sri.Krishnappa, aged about
48 yrs,
All are R/at.K.Channasandra
Village, K.R.Puram Hobli,
Bengaluru South Taluk.
2
O.S. No. 25872/2014
(By Sri.N.R.Raghavendra - Adv.)
Date of institution of the suit 19.06.2014
Nature of the (Suit or pronote, suit
for declaration and possession, suit Injunction Suit
for injunction, etc.,)
Date of commencement of
10.10.2017
recording of the Evidence
Date on which the Judgment was
13.12.2019
pronounced
Year/s Month/s Day/s
Total duration 05 05 25
(Yamanappa Bammanagi)
LXXIII Addl. CC & SJ, M.H. Unit,
Bengaluru. (CCH74)
JUDGMENT
The plaintiff has filed this suit against the defendants restraining them, their agents or anybody claiming under them from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property.
2. Brief facts of the plaintiff's case:
The plaintiff contended in the plaint that he is the absolute owner in possession of the suit schedule property by virtue of registered sale deed dated: 17.07.1995 which comes within the 3 O.S. No. 25872/2014 administrative Jurisdiction of BBMP. Khata stands in the name of the plaintiff , plaintiff paying property tax as per the assessment. Such being the facts, the defendant without having any right, title over the suit schedule property, started illegal interference , gave threat to dispossess or in the alternative encroach upon the portion of the schedule property with an intention to make unlawful gain. The defendants have taken law into their own hands and repeatedly threatening to interfere with the peaceful possession and enjoyment of the suit schedule property. Hence, plaintiff has filed this suit for necessary reliefs sought in the plaint.
3. In pursuance of the service of summons, defendants appeared through their counsel and filed their written statement. The defendants have denied the averments of plaint specifically, prayed for dismissal of the suit. Further contended in the written statement that plaintiff has falsely stated in the plaint that property situated at Sy.No. 100/1, 100/2, 100/3, aggregately to 10.16 guntas, situated at Channasandra Village, conveyed by defendant No.1, in favour of plaintiff by registered sale deed dated 4 O.S. No. 25872/2014 17.07.1995 and further it is false to aver that property situated at Sy.No. 100/1, 100/2, 100/3, aggregately to 10.16 guntas situated at Channasandra Village conveyed by defendant No.2, infavour of plaintiff by registered sale deed dated 17.07.1995, further denied the possession of the suit property and contents of Para No.6 and 7 are specifically denied by the defendants; further contended that, the defendants have taken law into their own hands and are repeatedly threatening to interfere with plaintiff's possession and enjoyment of the suit property, defendant had attempted on 17.06.2014 to interfere illegally with plaintiff's possession and enjoyment of the suit property are all false and denied specifically and stated this case.
4. True facts of the defendant as per written statement :
It is the case of the defendants that the defendant Nos. 1 and 2 have purchased the property Sy.No. 100/1, 100/2, 100/3, from one Kempamma, Kaverappa, Munianjinappa and others, through the registered sale deeds dated 22.10.1980, to an extent of 1 acre 10 guntas of K. Channasandra Village. Due to mistake crept in the sale deed dated 22.10.1980, the vendors of the 5 O.S. No. 25872/2014 defendant Nos. 1 and 2, I.e., Kempamma, Kaverappa and Munianjinappa have executed the rectification deed to correct the mistake appeared in the sale deed through registered amended sale deed dated 03.01.1994. As per rectified sale deed dated 03.01.1994, the extent of the 1st defendant is shown as 10 guntas in Sy.No. 100/1 and extent of 2nd defendant shown as 10 guntas of K. Channasandra Village, same has been entered in the R.T.C. since from the date of purchase, the defendant Nos.1 and 2 are in possession and enjoyment of the suit property.
Further it is the case of the defendant Nos. 1 and 2 that on 17.07.1995, the defendant Nos.1 and 2 have jointly sold their land to the extent of 9 guntas out of 20 gntas in favour of one Motappa in Sy.No. 100/1 of K. Channasandra Village. Again on the same day i.e., on 17.07.1995, the defendant No.1 has sold 4 guntas in favour of the plaintiff in Sy.No. 100/1 of K. Channasandra Village and defendant No.2 on 17.07.1995, has sold to an extent of 4 guntas in favour of plaintiff in respect of Sy.No. 100/1 of the K. Channasandra Village. So, in all, the defendant Nos.1 and 2 have sold to an extent of 17 guntas out of 20 guntas in Sy.No. 100/1. 6
O.S. No. 25872/2014 So, remaining 3 guntas on Southern side is retained by the defendant Nos.1 and 2 and both the defendant Nos.1 and 2 are in possession of 1 ½ guntas each in Sy.No. 100/1 of K. Channasandra Village, the defendant Nos. 1 and 2 here retained 3 guntas out of 20 guntas which is shown in the written statement schedule.
5. Further defendant Nos. 1 and 2 contended that their names appeared in the R.T.C. in respect of 3 guntas in Sy. No. 100/1 of K. Channasandra Village upto 19992000, but in the year 2001, the names of the defendant Nos. 1 and 2 were not appearing in the RTC, they filed representation before concerned Thahisildar, same was allowed. But, Revenue Officer has not carried out the order of the Thahisildar, again the defendants have preferred an appeal before the concerned Asst. Commissioner, same was allowed, directed the Thahisildar to correct the RTC, same was carried out, the name of the defendant Nos. 1 and 2 were entered in the RTC in respect of 3 guntas in Sy.No. 100/1 of K. Channasandra Village as per M.R. No. H.1/201314, dated 06.08.2013, as such the defendant Nos. 1 and 2 are in possession 7 O.S. No. 25872/2014 and enjoyment of 1 ½ guntas each. So, the plaintiff has filed this false suit, and plaintiff has given false boundaries to the schedule property. With this, defendants prayed for dismissal of the suit.
6. Initially this suit is filed before the CCH22, in view of the Notification No.ADMI(A)413/2018, dated 31.07.2018, this case has been transferred to this court as per order dated 09.8.2018 from CCH22. And suit was called out in this court for the first time on 27.08.2018.
7. On basis of pleadings of parties my learned Predecessor had framed following: ISSUES
1. Whether the plaintiff proves that she was in lawful possession and enjoyment of the suit schedule property as on the date of filing this suit?
2. Whether the plaintiff proves the alleged interference by the defendants over the suit schedule property ?
3. Whether the plaintiff proves that she is entitled to relief's as sought for in the plaint ?
4. What order or decree?
8
O.S. No. 25872/2014
8. In order to prove her case, the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.8. Though defendants appeared through their counsels, filed common written statement, But defendants did not choose to crossexamine Pw1 and did not choose to lead their evidence to substantiate their defence taken in the written statement, even after sufficient opportunity has been provided. Heard arguments of learned counsel for plaintiff and the arguments of defendants was taken as heard since the defendants and their counsel remained absent when case was posted for their arguments.
9. My answer to above issues are as follows: Issue No.1: In the Affirmative, Issue No.2: In the Affirmative, Issue No.3: In the Affirmative, Issue No.4: As per the final order, for the following: REASONS
10. ISSUE No.1: In order to prove her case the plaintiff is examined as P.W.1 by filing affidavit, reiterating the averments of 9 O.S. No. 25872/2014 the plaint. It is the case of the plaintiff that the properties bearing Sy.Nos. 100/1, 100/2, 100/3, in all, to the extent of 10.16 guntas is situated at K. Channasandra Village, are conveyed by the defendant No.1 in favour of the plaintiff through registered sale deed dated 17.07.1998 and Sy.Nos. 100/1, 100/2 and 100/3 in all to extent of 10.16 guntas, were convened by the defendant No.2, through registered sale deed dated 17.07.1995. On 17.07.1995 one Motappa conveyed the land measuring 6 guntas in Sy.No. 100/1, 6 guntas in Sy.No. 100/2, 6 guntas in Sy.No. 100/3 and 6 guntas in Sy.No. 107/2, in all 24 guntas situated at K. Channasandra Village, in favour of the plaintiff.
However, present dispute is pertaining to only a portion of property in Sy.No. 100/1, which is shown as suit schedule property, which comes under the BBMP jurisdiction. So, without having any right or possession, the defendant obstructed the plaintiff's possession.
11. In support of oral evidence, the plaintiff has produced as many as 10 documents, Ex.P.1 is the Certified copy of the sale deed dated 17.07.1995 and Ex.P.1(a) and Ex.P.1(b) are the 10 O.S. No. 25872/2014 registered sale deed dated 17.07.1995. Ex.P.2 is the conversion order. Ex.P.3 is the certificate dated 13.06.2014 issued by the BBMP in the name of the plaintiff. Ex.P.4 is the extract of register kept for the year 201415 for the list of houses and vacant sites of ward No. 26, K. Channasandra Village. Ex.P.5 is the receipt. Ex.P.6 is the encumbrance certificate for the period from 01.04.1990 to 31.03.2004. Ex.P.7 is the second page of Ex.P.6 and Ex.P.8 is the encumbrance certificate which is third page of Ex.P.6.
I have perused Ex.P.1 and Ex.P.1 (a) to Ex.P.1 (b) are the certified copy of sale deeds in respect of properties of plaintiff. But dispute is with regard to portion of the property bearing Sy.No. 100/1. Ex.P.2 is the conversion order. I have perused Ex.P.2 which contains five pages. On perusal of Ex.P.2, it is clear that suit property shown at sketch attached to Ex.P.2 conversion order. Further it clearly shows that in Sy.No. 100/1, 14 guntas have been converted as per the application of plaintiff. Ex.P.3 is the certificate issued by the BBMP. I have perused Ex.P.3, certificate issued by the BBMP, clearly shows that property bearing 11 O.S. No. 25872/2014 Sy.No. 98/2, 99/1, 99/2, 100/1, 100/3 and 107/2 stands int he name of plaintiff. Ex.P.4 is the register extract which is maintained by BBMP for the year 201415, maintained the entries of houses and vacant sites in respect of Ward No. 26 of K. Channasandra Village. Further it clearly shows the name of the plaintiffs, possession over the suit schedule property. Ex.P.5 is the receipt for having paid for obtaining the Khata certificate and Khata extract. Ex.P.6 to Ex.P.8 are the encumbrance certificates. On careful scrutiny of Ex.P.6 to Ex.P.8, it is clear that suit schedule property originally stands in the name of Kempamma, Kaverappa, Munianjinappa, Mariamma, Motappa thereafter, K. Nagaraju defendants, then transferred to the plaintiffs as Ex.P.7 and 8 clearly reflects the name of the plaintiff as owner in possession. On careful perusal of the Ex.P.1(a) to Ex.P.1(c) and Ex.P.2 to 8 Revenue record clearly shows that the plaintiff is owner and in possession of the suit property at the time of filing of the suit. On careful scrutiny of Ex.P.2 and 8, Revenue record clearly establishes the possession of the suit property of the plaintiff. The 12 O.S. No. 25872/2014 Revenue record having its evidentiary value under the law as per Sec. 35 of the Indian Evidence Act which reads thus :
35.Relevancy of entry in public [record or an electronic record] made in performance of duty.__ An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.
Editor's Note._The words "Fact", "Facts in issue" and 'Relevant" are defined in Section 3 of this Act.
Off course Revenue record cant be looked into for the purpose of the title of the immovable property. But can be relied on, for the purpose of possession of the properties. In support of 13 O.S. No. 25872/2014 my opinion I relied on the decision reported in ILR 2004 KAR.1074 in case of Naganna Vs. Shivanna. The lordship have held at Head note B. thus:
REBUTTAL EVIDENCE - entries in the ROR carries presumptive value in law - if there is no convincing evidence to rebutt the legal presumption, lessor relief of injunction can be granted. But the declaration title cannot be granted.
12. Further relied on decision reported in AIR 2008 SC 901 in case of Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and Others. The lordship have held at Head note B. reads thus:
Evidence Act, (1 of 1872), Ss. 35, 114 revenue records not document of title it merely raises presumption of possession.
The lordship have discussed at Para 12 of the judgment, which reads thus:
14
O.S. No. 25872/2014 A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the the Indian Evidence Act. The Courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind.
Hence, I answer this issue in the affirmative.
13. ISSUE No.2: It is the case of the plaintiff that she is the owner and in possession of the suit schedule property by virtue of registered sale deed and she has converted the suit schedule property and in possession and enjoyment of the suit schedule property. Further it is the case of the plaintiff that the defendants without having any right over the suit property tried to interfere with the plaintiffs peaceful possession and enjoyment of the plaintiff. On the other hand the defendants appeared through their counsel, filed written statement contending that the 15 O.S. No. 25872/2014 defendant Nos. 1 and 2 have purchased the property by Sy.No. 100/1, 100/2, 100/3, from one Kempamma, Kaverappa, Munianjinappa and others through the registered sale deeds dated 22.10.1980 to an extent of 1 acre 10 guntas of K. Channasandra Village. Due to mistake crept in the sale deed dated 22.10.1980, the vendors of the defendant Nos. 1 and 2, I.e., Kempamma, Kaverappa and Munianjinappa have executed the rectification deed to correct the mistake appeared in the sale deed through registered amended sale deed dated 03.01.1994. As per rectified sale deed, dated 03.01.1994, the extent of the 1st defendant is shown as 10 guntas in Sy.No. 100/1 and extent of 2 nd defendant shown as 10 guntas of K. Channasandra Village, same has been entered in the R.T.C. since from the date of purchase, the defendant Nos.1 and 2 are in possession and enjoyment of the suit property.
Further it is the case of the defendant Nos. 1 and 2 that on 17.07.1995, the defendant Nos.1 and 2 have jointly sold their land to the extent of 9 guntas, out of 20 guntas, in favour of one Motappa in Sy.No. 100/1 of K. Channasandra Village. Again on 16 O.S. No. 25872/2014 the same day i.e., on 17.07.1995, the defendant No.1 has sold 4 guntas in favour of the plaintiff in Sy.No. 100/1 of K. Channasandra Village and defendant No.2 on 17.07.1995, has sold to an extent of 4 guntas in favour of plaintiff in respect of Sy.No. 100/1 of the K. Channasandra Village. So, in all, the defendant Nos.1 and 2 have sold to an extent of 17 guntas out of 20 guntas in Sy.No. 100/1. So, remaining 3 guntas on Southern side is retained by the defendant Nos.1 and 2 and both the defendant Nos.1 and 2, are in possession of 1 ½ guntas each, in Sy.No. 100/1 of K. Channasandra Village, the defendant Nos. 1 and 2 here retained 3 guntas out of 20 guntas which is shown in the written statement schedule.
14. Further defendant Nos. 1 and 2 contended that their names appeared in the R.T.C. in respect of 3 guntas in Sy. No. 100/1 of K. Channasandra Village upto 19992000, but in the year 2001, the names of the defendant Nos. 1 and 2 were not appearing in the RTC, they filed representation before concerned Thahisildar, same was allowed. But, Revenue Officer has not carried out the order of the Thahisildar, again the defendants have 17 O.S. No. 25872/2014 preferred an appeal before the concerned Asst. Commissioner, same was allowed, directed the Thahisildar to correct the RTC, same was carried out, the name of the defendant Nos. 1 and 2 were entered in the RTC in respect of 3 guntas in Sy.No. 100/1 of K. Channasandra Village as per M.R. No. H.1/201314, dated 06.08.2013, as such the defendant Nos. 1 and 2 are in possession and enjoyment of 1 ½ guntas each. So, the plaintiff has filed this false suit, and plaintiff has given false boundaries to the schedule property. With this, defendants prayed for dismissal of the suit.
But defendants did not choose to crossexamine the Pw1 and did not choose to lead their evidence to prove their defence taken in the written statement. Hence the oral and documentary evidence led by the plaintiff remained unchallenged. Off course, the plaintiff has not produced any documentary evidence to prove the fact of interference of the defendants. But, oral evidence led by the plaintiff is not challenged by the defendants and oral evidence of the plaintiff corroborates with the documentary evidence. That apart, the provision section 59 and 60 of the 18 O.S. No. 25872/2014 Indian Evidence Act deals with the proof of facts by oral evidence, Section 59 of the Indian Evidence Act, which reads thus :
Section 59 Proof of the facts by oral evidence All facts, except the [contents of documents or electronic records], may be proved by oral evidence.
The evidence of plaintiff remained unchallenged. The defendants have filed their written statement and denied the title and possession of he plaintiff. But failed to prove their defence. Looking to the fact and circumstances of the case, I am of the opinion that the plaintiff has proved the facts of interference by oral evidence. When facts of possession and interference are proved, under such circumstances plaintiff is entitled for the relief of Injunction. In support of my opinion I relied on the decision reported in AIR 2008 SC 2033 in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
The lordship have held in the decision thus:
Where Plaintiff is in lawful or peaceful possession of a property 19 O.S. No. 25872/2014 and such possession is interfered or threatened by the Defendant a suit for an injunction simpliciter will lie. With the above observation and reasons and relying on the decision referred above. I answer this issue in the affirmative.
15. ISSUE No.3: It is the case of the plaintiff that she is the owner and in possession of the suit property by virtue of registered sale deed and produced the relevant documents and conversion order. On appreciation of Ex.P.1 to Ex.P.8, it is clear that the plaintiff has proved her possession and interference of the defendants. But defendants failed to prove their case by leading oral or the documentary evidence and the oral and documentary evidence led by the plaintiff remained unchallenged. Under such circumstances, I hold that the plaintiff is entitled for the relief as sought for in the suit. With this, I answer this issue in the affirmative.
15. ISSUE No.4: In view of the discussion made on issue Nos.1 to 3, I proceed to pass the following: ORDER 20 O.S. No. 25872/2014 The suit filed by the plaintiff is hereby decreed. Consequently, the defendants are hereby restrained, by the order of permanent injunction, from interfering with the plaintiff's peaceful possession and enjoyment of the suit property.
No order as to Costs.
Draw decree accordingly.
(Dictated to the Typist directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 13th day of December, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) SUIT SCHEDULE PROPERTY All that piece and parcel of the Sy.No. 100/1, measuring 14 guntas situated at K. Channasandra Village, K.R. Puram Hobli, Bangalore South Taluk, bounded on the:
East by: Land in Sy.No.107/2; West by: Land in Sy. No.100/2 ;
North by: Remaining portion of land in Sy.No.100/1;
and on
21
O.S. No. 25872/2014
South by: Land in Sy.No.101.
(Yamanappa Bammanagi)
LXXIII Addl. CC & SJ, M.H. Unit,
Bengaluru. (CCH74)
ANNEXURES
List of witness examined for the plaintiff's side:
P.W.1 Smt. Snehalatha Kholay List of documents exhibited for the plaintiff's side:
Ex.P.1, 1 (a 3 C/C's of the sale deeds
to c)
Ex.P.2 Endorsement [conversion order] issued by
Deputy Commissioner
Ex.P.3 Certificate issued by BBMP
Ex.P.4 Property Extract
Ex.P.5 Tax paid receipt
Ex.P.6 to 8 3 Encumbrance Certificates
List of witness examined for the defendants' side :
NIL List of document exhibited for the defendants' side:
NIL 22 O.S. No. 25872/2014 (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 23 O.S. No. 25872/2014 24 O.S. No. 25872/2014