Bangalore District Court
Sri Ayyappa Seva Samithi vs ) Sri Muniyappa on 8 April, 2015
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 8th day of April, 2015.
Present
Sri G.M. KUMBAR, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.6823/2010
Plaintiff: Sri Ayyappa Seva Samithi
No.85, 4th Cross, Kathriguppe
Banashankari 3rd Stage
Bangalore-560 085
Represented by its Dharmadhikari
Sri D.M. Swamy @ Makeup Swamy
s/o Doreswamy.
(By Sri R.S. Umesh, Adv.)
Vs.
Defendants: 1) Sri Muniyappa, major
2) Sri Gangadhar, major
3) Smt.K. Subbalakshmi
w/o Late Kandan, major
4) Smt.S. Mageshwari w/o V. Saravana
d/o Late Kandan, major
5) Smt.Jaishree w/o Chandramohan
d/o Late Kandan, major.
D.1 & 2 are r/at No.11, 2nd Cross
Guruji Layout, Padmanabhanagar
Bangalore.
D.3 to 5 are r/at No.92/3, Opp: Big
Bazaar, BSK 3rd Stage, 3rd Phase
Kathriguppe Main Road
Bangalore-560 085.
(By Sri N. Naresh, Adv. For D.1 and
D.2 to 4- placed exparte)
Date of institution of the suit 25.09.2010
Nature of the suit For permanent injunction
2 O.S.No.6823/2010
Date of the commencement 11.11.2011
of recording of evidence
Date on which the judgment 08.04.2015
Pronounced
Total duration Years Months Days
04 06 13
JUDGMENT
This suit is filed for permanent injunction restraining the defendant from interfering with plaintiff's possession & enjoyment of the suit schedule property. The suit property is vacant immovable property bearing BBMP No.3 of Sy.No.92, situated at Kathriguppe Village, 1st Cross, Banashankari 3rd Stage, Bangalore measuring eastern side 96 feet, western side 101 feet, northern side 15 feet and southern side 55 feet as shown in plaint schedule.
2. The brief facts of the plaintiff's case are that:-
The plaintiff is an Institution for religious and charitable purpose being managed by its Dharmadhikari viz., D.M. Swamy @ Makeup Swamy and plaintiff is owner of schedule property and earlier one T. Ramaswamy Chettiyar was the owner of said property along with other properties and after death of Ramaswamy, his children got partitioned his properties 3 O.S.No.6823/2010 through Court in O.S.No.566/1980 on the file of City Civil Judge, Bangalore and as per terms of said decree, Sri R. Kandan became owner of suit property and he was in possession & enjoyment till the plaintiff was put in possession on 22.05.2003. The said Kandan was devotee of Sri Ayyappa Swamy and he was donating liberally to the Temple for its development and in the year 2003 he gave suit schedule property to the plaintiff by executing registered WILL DEED dated 22.05.2003 and the plaintiff was put in possession on the same day and since then the plaintiff is in lawful possession of the suit property. The said Kandan died on 24.05.2009 and consequently, the plaintiff has become absolute owner of suit property and that the defendants have no right, title or interest in the property. The plaintiff has constructed building in portion of the suit property and paying corporation taxes and that the defendants 1 & 2 are totally strangers to the plaintiff and suit property and that third defendant is wife and defendants 4 & 5 are daughters of late Kandan. The Dharmadhikari of plaintiff is permanent devotee of Lord Ayyappa and during 2010, he went to Shabarimalai and taking advantage of absence of Dharmadhikari, the 4 O.S.No.6823/2010 defendants made illegal attempt to occupy the vacant portion of the suit property and on 17.09.2010 the defendants tried to demolish the compound wall and that the defendants 1 & 2 are illegally claiming their right over the suit property and if the defendants are not restrained by an order of permanent injunction, they are likely to encroach upon the suit property. Hence, it is prayed to decree the suit.
3. The defendants 2 to 5 remained exparte. The first defendant appeared and filed written statement as follows:-
The plaintiff has not produced documents to prove that it is Registered Charitable Trust and plaintiff is Dharmadhikari of the plaintiff. The plaintiff is making efforts to knock off the schedule property by projecting a false story. The entire story of plaintiff is highly imaginary and unknown to law and the plaintiff has claimed that one Kandan donated the suit property and thereby it has become owner. But the plaintiff has failed to produce the documents of title to suit property. The alleged WILL cannot come into existence during the life time of Kandan and therefore, the contention of plaintiff 5 O.S.No.6823/2010 that immediately after execution of WILL, he was put in possession is false. The plaintiff is illegally making attempts to interfere with defendant's possession over the suit site and the plaintiff has made false allegations regarding the interference, encroachment, demolition of wall, etc. The suit schedule property is grant land and the defendants 1 & 2 are in peaceful possession of the same ever since the land was granted. Hence, the suit of plaintiff is liable to be dismissed.
4. In view of the above pleadings, the following issues are framed:-
1) Whether the plaintiff proves that plaintiff is in lawful possession of the suit schedule property as on the date of suit?
2) Whether the plaintiff proves the alleged interference?
3) What decree or order?
5. During the course of evidence, the plaintiff examined P.W.1 and got marked documents Ex.P.1 to Ex.P.7 and closed side. The first defendant examined D.W.1 and got marked documents Ex.D.1 to Ex.D.6 and closed side.
6 O.S.No.6823/2010
6. Heard arguments.
7. My answer to the above issues is as follows:-
1) In the affirmative;
2) In the affirmative;
3) As per final order, for the following:-
REASONS
8. ISSUE No.1:- The plaintiff filed the above suit for permanent injunction against the defendants contending that the suit property bearing BBMP No.3, situated in Sy.No.92 of Kathriguppa village is owned and possessed by the plaintiff- Samithi and one R. Kandan gave the suit property to the plaintiff by executing registered WILL DEED in 2003 and since then plaintiff is in possession of suit property and after death of Kandan in 2009, the plaintiff has become owner of suit property. It is further contended that the defendant is illegally causing interference into the possession of plaintiff over the suit property with intention to encroach upon the suit property and that the plaintiff is in lawful possession of suit property since 2003. Whereas the first defendant has denied the ownership and possession of plaintiff over the suit property and further denied the alleged execution of WILL DEED by Kandan in favour of the plaintiff. The 7 O.S.No.6823/2010 defendants 1 & 2 further contended that the suit property is granted to them and they are in lawful possession of suit schedule property.
9. In order to prove lawful possession of plaintiff over the suit property as on the date of suit, Dharmadhikari of the plaintiff entered the witness box as P.W.1. The P.W.1 filed the sworn affidavit in the form of chief-examination and deposed that plaintiff is in lawful possession of suit property since from the date of WILL DEED and that the property was given by the previous owner- one Kandan by executing registered WILL DEED dated 22.05.2003. The oral evidence of P.W1 is supported by the documents Ex.P.1 to Ex.P.7. The Ex.P.1 is original registered WILL DEED executed by R. Kandan in favour of the plaintiff. As per said document, the suit property is bequeathed by R. Kandan and possession of the said land was handed over on the date of execution of WILL deed i.e., 22.05.2003. The ownership of R. Kandan over the land Sy.No.92 is not in dispute. It is argued by learned counsel for first defendant that the document of WILL will always come into force after death of testator and therefore, the contention of plaintiff that 8 O.S.No.6823/2010 it was put in possession from the date of WILL DEED itself is not believable. But on perusal of the recitals of Ex.P.1, it is clearly stated in the said document that the possession of suit property is handed over to Dharmadhikari (P.W.1) on the date of execution of WILL with immediate effect. Though the plaintiff has become owner of the suit property after death of testator in 2009, the possession was already handed over to the plaintiff in 2003 itself. There is nothing wrong in handing over possession of the property on the date of WILL DEED itself, though ownership will vest in favour of beneficiary after death of testator. The first defendant has no right to deny the Ex.P.1, which is registered document. Neither R. Kandan nor his legal heirs have disputed the said document at any point of time. The defendants have not denied the previous ownership of R. Kandan over the suit property at the time of execution of WILL DEED.
10. The plaintiff has produced tax paid receipts marked as Ex.P.1 to Ex.P.4. The death certificate of Kandan is marked as Ex.P.5. The photographs regarding existence of the Temple and open space adjoining to the 9 O.S.No.6823/2010 said Temple of the plaintiff are marked as Ex.P.6 & Ex.P.7. The name of P.W.1 is noted in the tax paid receipts as representative of the plaintiff- Temple. The first defendant has disputed the power of the P.W.1 to file the above suit. The first defendant has no concern with Ayyappa Seva Samithi. It is not the case of the first defendant that no such Seva Samithi is in existence. Except the first defendant, nobody has disputed the authority of the plaintiff to file the suit for injunction. The present suit is not for declaration of title, but it is only simple suit for permanent injunction. In order to protect the property of the plaintiff from illegal encroachment by others, he being the main archak of the Temple has filed this suit for injunction. None of the devotees have disputed the power of the plaintiff to approach the Court. The Ex.P.1- WILL DEED is also signed by the P.W.1.
11. During the course of cross-examination of P.W.1, the first defendant asked several questions regarding the genuineness of the WILL- Ex.P.1. No doubt the P.W.1 has deposed that he was very much present in the Sub Registrar at the time of execution of Ex.P.1 by R. Kandan. The WILL DEED is attested by 2 independent 10 O.S.No.6823/2010 witnesses and it is registered document. Therefore, question of exercising undue influence by the P.W.1 on executor of the WILL DEED does not arise. That apart, it is not a suit for title. In a suit for permanent injunction, the plaintiff has to prove lawful possession over the property as on the date of filing the suit. Therefore, the Court need not go in detail about the validity of WILL DEED. The oral evidence of P.W.1 coupled with documents- Ex.P.1 to Ex.P.4, Ex.P.6 & Ex.P.7 are sufficient to prove the lawful possession of plaintiff on the date of suit. The first defendant has no right to dispute the WILL executed by R. Kandan.
12. On the other hand, the first defendant has entered the witness box as D.W.1 and deposed that the story of the plaintiff is imaginary and plaintiff has not produced documents to show the ownership and possession and that plaintiff is not in possession of suit schedule property and that the plaintiff has not obtained any succession certificate from competent authority to claim the property under registered WILL DEED. He has further deposed that himself and second defendant are in peaceful possession of the suit property on the basis of 11 O.S.No.6823/2010 Ex.D.1- document. The Ex.D.1 is in the form of certificate typed on 2 stamp papers of Rs.100/- each on 23.08.2009. As per this document, R. Kandan has declared that the vacant land measuring east-west 118½ feet towards southern side, 126½ feet in northern side and north-south eastern side 100 feet and western 37½ feet is in possession of first defendant- Muniyappa. But the exact location of the said property is not stated in Ex.D.1 and there is no any separate sketch map enclosed with said document to show the existence of the property. It is not made clear from the first defendant as to how the said Kandan executed such document on stamp paper without any registration. The Ex.D.1 is unregistered document and no title or possession is transferred under said document in favour of first defendant by its vendor. The said document prima facie appears to be fabricated by he defendants for the purpose of this case. Because the stamp vendor put the seal on back page of stamp paper and stamp paper was said to have been purchased by a different person and later the name of the purchaser is erased with the help of whitener. It appears that somebody was in possession of 12 O.S.No.6823/2010 said stamp paper and the first defendant took the said stamp paper for the purpose of creating- Ex.D.1. There are no recitals in the said document that the owner- Kandan has transferred the said property in favour of first defendant or his family members. Therefore, the said document is not helpful to the defendant to prove his right, interest or possession over the suit property.
13. The Ex.D.2 & Ex.D.3 are tax paid receipt and mutation extract in the name of one Bhyrappa s/o Muniyappa. The first defendant has not produced any document to show the relationship with said Bhyrappa. The Ex.D.4 is the map of Sy.No.92, marked subject to objection at the time of evidence. But, this document is a private document of the plaintiff but not issued by any public office. The Ex.D.5 & Ex.D.6 are certified copy of order of Hon'ble High Court and order sheet in W.P.No.27786/96 and other cases. It appears that one Hanumanthappa, first defendant and others filed several writ petitions before Hon'ble High Court for quashing the order of Asst. Commissioner in respect of Sy.No.91 of Kathriguppa village. But the said writ proceedings are not in respect of Sy.No.92 in which the suit schedule 13 O.S.No.6823/2010 property is situated. More over the said writ petitions were dismissed as not pressed by filing a memo reporting the settlement out side the Court. There are no records regarding the alleged settlement between the parties. The plaintiff is not party to the said proceedings nor the said documents are relevant to the suit property.
14. During the course of cross-examination, the D.W.1 has deposed that Kandan has given 5000 square feet area as per settlement. But he has not produced such document to claim possession over the area of 5000 square feet in Sy.No.92. In the cross-examination, he deposed that in the year 2010, the plaintiff- Samithi demolished his house. But he did not file any complaint before Police. If the first defendant was in possession of any portion of the suit schedule property by constructing house, he would have filed complaint before Police or at least would have filed a separate suit for recovery of possession. The statement of D.W.1 in cross-examination that after obtaining injunction order, the plaintiff dispossessed him from the suit property is totally baseless. Because after granting temporary injunction order, the first defendant appeared and filed written 14 O.S.No.6823/2010 statement. But, no such contention is taken by the defendant in his written statement regarding dispossession from the suit property. This statement of D.W.1 again goes to show that the plaintiff is in lawful possession of the suit schedule property. On the other hand, the first defendant has failed to lead any satisfactory evidence to disbelieve the case of the plaintiff and to disbelieve lawful possession over the suit property as on the date of suit. On perusal of oral and documentary evidence adduced by both the parties, it is seen that the possession of plaintiff is based upon registered document and the plaintiff has got strong case to prove his lawful possession. On the other hand, the first defendant has failed to rebut the plaintiff's evidence by adducing any material. Hence, I answer issue No.1 in affirmative.
15. ISSUE No.2:- It is alleged by the plaintiff that during 2010 when P.W.1 was out of station, the defendants tried to interfere and trespass into the suit schedule property and the defendants continued their illegal obstruction into the plaintiff's possession. Though the first defendant has denied the allegation of 15 O.S.No.6823/2010 interference by filing written statement, the contention taken by first defendant clearly supports the allegation of plaintiff regarding illegal interference. The first defendant has denied the ownership as well as lawful possession of plaintiff over the suit property. The D.W.1 has further made allegation regarding his dispossession from suit schedule property after granting exparte temporary injunction order by this Court. The conduct of first defendant and defence taken by him is sufficient to prove the illegal interference of first defendant. The defendants 2 to 5 have remained exparte. As such, they have not disputed the allegation of plaintiff regarding illegal interference. Hence, I answer issue No.2 in affirmative.
16. ISSUE No.3:- In view of my findings on issue No.1 & 2 and for the reasons stated above, I proceed to pass the following:-
ORDER Suit of the plaintiff is decreed with cost.
The defendants, their agents, servants or anybody on their behalf are hereby restrained by an order of permanent injunction from causing illegal 16 O.S.No.6823/2010 interference with plaintiff's peaceful possession over the suit schedule property.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him on computer, printout taken, corrected and then pronounced by me in the Open Court on this the 8th day of April, 2015).
(G.M. KUMBAR) X Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : D.M. Swamy @ Makeup Swamy List of documents exhibited for plaintiff:
Ex.P1 : WILL dated 22.05.2003 Ex.P2 to 4 : Tax paid receipts Ex.P5 : Death certificate of husband of D.3 Ex.P6,7 : Photos
List of witnesses examined for defendants:
D.W.1 : Muniyappa List of documents exhibited for defendants:
Ex.D1: Document confronted to P.W.1
Ex.D1(a) to (c): Signatures of Kandan
Ex.D2: Tax paid receipt
Ex.D3: Mutation register extract
Ex.D4: Map in relation to Sy.No.92
Ex.D5: Certified copy of Order in W.P.No.27786/96 &
W.P.No.27825 to 827/96
Ex.D6: Certified copy of Order sheet in W.P.
No.27786/96 & W.P.No.27825 to 827/96
(G.M. KUMBAR)
X Addl. City Civil & Sessions Judge,
Bangalore.
17 O.S.No.6823/2010
8.4.2015
Judgment pronounced in open Court.
Operative portion thereof reads as
under:-
Suit of the plaintiff is decreed with
cost.
The defendants, their agents,
servants or anybody on their behalf are hereby restrained by an order of permanent injunction from causing illegal interference with plaintiff's peaceful possession over the suit schedule property.
Draw decree accordingly.
(G.M. KUMBAR) X A.C.C. & S.J., Bangalore.