Bangalore District Court
Loganathan vs Benjimen Francies on 13 January, 2021
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 13th day of January, 2021.
PRESENT:
Sri MALLANAGOUDA, B.Com.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.6811/2017
PLAINTIFF : Loganathan,
Aged about 41 years,
S/o. Late Challamuthu,
Residing at No.6,
Nallaswamy Lay-out,
Hennur Bande,
Bengaluru - 43.
(By Sri L. Subramani, Advocate)
-VERSUS-
DEFENDANTS : 1. Benjimen Francies,
Aged about 47 years,
S/o. Late Francis;
2. Neerup Francies,
Aged about 40 years,
S/o. Late Francis;
3. Smt. Sujatha Balaraj,
Aged about 36 years,
D/o. Late Francis.
Defendants 1 to 3 are
residing at No.1, Gethsmen
Garden, Front of Manthri
Appartment, Hennur Main
Road, Hennur, Bengaluru -
43.
-2- O.S. No.6811/2017
(Defendants 1 and 3 by
Sri Y.S. Prakash, Advocate)
(Defendant No.2 by
Sri S. Gangadhara Aithal, Advocate)
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Date of Institution of the Suit : 07-10-2017
Nature of the Suit (Suit on : Injunction suit.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 30-08-2018
of recording of the evidence
Date on which the Judgment : 13-01-2021
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 3 years, 3 months, 6 days.
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(MALLANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENT
This suit is filed by the plaintiff seeking permanent injunction to restrain the defendants from interfering with his possession over the suit schedule property - site Nos.25 and 26, old Byatarayanapura CMC Khata No.286/26/26, new BBMP Khata No.2286/25/26 situated at Hennur village, Kasba hobli, Cont'd..
-3- O.S. No.6811/2017 Bengaluru North taluk, now coming within the
jurisdiction of Ward No.24, HBR Lay-out, Hennur, Bengaluru measuring East-West: 20 feet North-South:
12½ feet - totally measuring 9000 square feet.
2. The brief facts of the plaintiff's case are as under -
Plaintiff is the owner of site Nos.25 and 26, old Byatarayanapura CMC Khata No.286/26/26, new BBMP Khata No.2286/25/26 situated at Hennur village, Kasba hobli, Bengaluru North taluk measuring 160 + 120 x 80 feet - totally measuring 9,670 square feet - which is described as suit schedule property. Plaintiff has acquired the suit property from his grandfather and father. He is in possession of the suit property from the last 50 years. He is running jelly crusher and has constructed 10 small sheet houses for stay of labours. Defendants are strangers to the suit property. They have no right, title or interest over the same. In spite of it, they are interfering with plaintiff's possession over the suit property. On 18.8.2017 when plaintiff was out of the suit property, defendants and Cont'd..
-4- O.S. No.6811/2017 their henchmen came near the suit property and threatened to acquire the same. At that time, when plaintiff came back and questioned the illegal activities of the defendants, the neighbouring property owners and labours supported the plaintiff to stop the illegal activities of the defendants. At that time, defendants have threatened stating that they will come again on 20.9.2017 with more force and demolish the shed wall and acquire the suit property illegally. Hence, plaintiff had approached the jurisdictional police. At that time, police informed the plaintiff to approach the Civil Court. Therefore, plaintiff is constrained to file the present suit seeking permanent injunction.
3. After their appearance, defendants 1 to 3 have filed their written statement and contested the matter. Defendants 1 and 3 filed their written statement as under -
Suit of the plaintiff is not maintainable either in law or on facts and hence, the same is liable to be dismissed with exemplary costs. Averments of Paras 1 and 2 do not require any comments. Averments of Para Cont'd..
-5- O.S. No.6811/2017 3 of the plaint that plaintiff is the absolute owner in possession of the suit schedule property, running crusher and constructed asbestos cement sheet sheds in the same, are all false and denied. In fact, plaintiff has created Khata in his name. Averments of Para 3 of the plaint that plaintiff obtained the suit property from his grandfather and father; he is in possession of the same from 50 years, are all false and denied. In fact, defendants are in possession and enjoyment of the suit property. Averments of Paras 4 to 7 of the plaint are also false and denied.
In fact, father of the defendants viz., Francis had filed O.S. No.2696/1998 seeking declaration in respect of Survey No.30 of Hennur village measuring 1 acre 20 guntas and 00-32 guntas against the Block Development Officer and other persons. The said suit came to be decreed on 25.2.2010. In the said suit, plaintiff's father was defendant No.5. Since his father has lost the case, with an intention to take revenge and harass the defendants, plaintiff has filed the present suit. Execution petition filed by the defendants in Cont'd..
-6- O.S. No.6811/2017 Execution Case No.2598/2010 for execution of the decree obtained by their father, is pending. Plaintiff has got knowledge of the said original suit and Execution Petition. In spite of it, he filed the present suit only to harass the defendants. In fact, plaintiff's father himself was never in possession of the suit property. Hence, question of plaintiff continuing in possession of the suit property does not arise. Since already decree is passed in favour of the defendants' father, plaintiff has no right to file the present suit for the relief of permanent injunction against the true owners. Court fee paid by the plaintiff is not sufficient. Hence, suit of the plaintiff is liable to be dismissed.
4. Defendant No.2 filed written statement as under
-
Suit of the plaintiff is not maintainable either in law or on facts and hence, the same is liable to be dismissed in limine. Description of the suit property itself is wrong. In fact, no such property is in existence. Suit is filed only with an intention to harass the defendants and knock off the property belonging to Cont'd..
-7- O.S. No.6811/2017 them. Plaintiff is not the owner of the suit property nor is he in possession of the same. In fact, plaintiff has filed the suit with an intention to obtain decree and interfere with possession of the defendants over the land granted by the Government to the father of the defendants. In fact, plaintiff has to seek declaratory decree in respect of the suit property with proper identification. Court fee paid by the plaintiff is not sufficient and the said fact has to be tried as a 'Preliminary Issue'. Plaintiff being the legal representative of late Chellamuthu - who was the party in O.S. No.2696/1998. He is the judgment-debtor in Execution No.2598/2010. Plaintiff has not disclosed anything about the Execution Petition - though the same is pending. Plaintiff has created municipal records in collusion with the officials of the municipal authority without any basis or valid title. When entire Survey No.30 measuring 5-00 acres had been granted to the defendants' father - late Francis and possession was delivered to him, the Government has no right to pass any other order in respect of the said property. In fact, second defendant is the owner of the suit property Cont'd..
-8- O.S. No.6811/2017
- which is portion of the land granted to his father. Same is standing in the name of the second defendant. First defendant had filed O.S. No.2696/1998 against the persons who had unauthorisedly trespassed in his property. Plaintiff's father was a party to the said suit and the said suit came to be decreed holding that the present plaintiff has no manner of right, title or interest in the suit property. Even the plaintiff kept quiet for all these years. Hence, the present suit is barred by limitation. Delivery warrant was issued in Execution Petition long back in July, 2012, - but the sme has been returned unexecuted. Averments of Paras 4 to 7 of the plaint are nothing but created story. Hence, the same are denied. As already O.S. No.2696/1998 filed by the father of the second defendant has been decreed, the present suit is not maintainable. Hence, the same is liable to be dismissed. Further, similar suits were also filed by other unauthorised occupants of the property belonging to the defendants. They have given up their claim and even applications filed by them under Order XXI, Rule 97 of the Code of Civil Procedure in Execution Petition No.2598/2010 are also dismissed Cont'd..
-9- O.S. No.6811/2017 as withdrawn. Plaintiff - being a party to the Execution Petition - has to be non-suited. Plaint itself is liable to be rejected under Order VII, Rule 11(a) of the Code of Civil Procedure. Hence, defendant No.2 also requested for dismissal of the suit.
5. On the basis of the above facts, the following Issues have been framed -
ISSUES
1. Whether plaintiff proves he is in lawful possession over the suit schedule property as on the date of suit?
2. Whether plaintiff proves alleged interference of defendants over the suit schedule property?
3. Whether plaintiff is entitled for the relief of permanent injunction as sought?
4. What decree or order?
Cont'd..
- 10 - O.S. No.6811/2017
6. In support of his case, plaintiff examined himself as P.W.1 and got marked documents as per Exs.P.1 to P.16 on behalf of the plaintiff.
7. On the other hand, defendant No.2 examined himself as D.W.1 and got marked documents as per Exs.D.1 to D.23 on behalf of the defendants.
8. Heard arguments. Perused records.
9. My findings on the above Issues are as under -
ISSUE No.1 - Negative;
ISSUE No.2 - Negative;
ISSUE No.3 - Negative;
ISSUE No.4 - As per final order, for the following -
REASONS
10. ISSUE NOs.1 TO 3 : Since all these Issues are inter-related with each other, they are being taken up together for discussion at a stretch in order to avoid repetitive discussion of facts.
Cont'd..
- 11 - O.S. No.6811/2017
11. It is the case of the plaintiff that he is absolute owner of the property - site bearing Nos.25 and 26, old Byatarayanapura CMC Khata No.286/25-26 situated at Hennur village; he got the same from his grandfather and father; he is in possession of the said property from 50 years; now, defendants - who have no right, title and interest over the suit schedule property - are interfering with his possession over the same.
12. On the other hand, defendants are claiming that the property described as suit schedule property is not in existence at all; in fact, entire Survey No.30 measuring 5-00 acres of Hennur village was granted to the father of the defendants viz., Francis; possession was handed over to said Francis; when some persons had unauthorisedly trespassed into the said land, their father had filed O.S. No.2696/1998 and after trial, the said suit came to be decreed against all the defendants; therefore, the said judgment in the said suit is binding on the plaintiff also and hence, suit of the plaintiff is liable to be dismissed.
Cont'd..
- 12 - O.S. No.6811/2017
13. During evidence, though plaintiff filed his affidavit as examination-in-chief reiterating 5he facts alleged in the plaint, in the cross-examination, he has admitted about the suit filed by defendants' father in O.S. No.2096/1998 against his grandfather and he has also admitted that the photographs produced in this suit were produced in Execution Petition No.2598/2010. He further deposed that as of now, suit schedule property is a vacant land and he is not residing in the suit schedule property at present.
14. Plaintiff has produced documents like self- declaration form filed for payment of tax, Khata extract, Khata certificate, assessment register extract, copy of the complaint filed by one C. Ganesh against the present defendants, electricity bills and receipts.
15. On the other hand, defendant No.2 has been examined as D.W.1 and defendants have produced as many as 23 documents.
16. On perusal of the entire evidence of both the parties to the suit and the documents produced by Cont'd..
- 13 - O.S. No.6811/2017 them, it appears that firstly as the suit schedule property is the vacant land, as held by the Hon'ble Supreme Court of India in the judgment reported in (2008) 4 Supreme Court Cases 594 [Anathula Sudhakar - versus- P. Buchi Reddy (Dead) by legal representatives and others], since the suit is in respect of a vacant land
- and defendants are denying title of the plaintiff over the property, even they are disputing the existence of the suit schedule property itself, he ought to have filed a suit for declaration of title and a mere suit for injunction is not maintainable.
17. Further more, as rightly contended by the learned Counsel for the defendants, except some self- assessment tax paid forms and Khata extracts issued by the Municipal authorities, plaintiff has not produced any title documents in respect of the property described in the plaint schedule regarding his ownership over the suit schedule property. Therefore, as held by the Hon'ble Supreme Court of India in the judgment reported in AIR 1997 SUPREME COURT 2181 [State of Himachal Pradesh -versus- Keshav Ram and others], as Cont'd..
- 14 - O.S. No.6811/2017 per Section 114 of the Evidence Act, mere entry in the revenue record is not sufficient to prove title of a person over certain property. Therefore, when plaintiff himself has deposed that as of now he is not in possession of the suit schedule property, he is not residing in the same and he is not running crusher in the suit schedule property as contended in the plaint and there is no documents regarding the plaintiff's title over the suit schedule property, and there is nothing to show that the plaintiff is in possession of the suit schedule property. Further more, the defendants have produced documents marked at Exs.D.22 and D.23 - which are the decree passed in O.S. No.2696/1988 and the order sheet in Execution 2598/2010 - which is filed for execution of the decree passed in O.S. No.2696/1998 - which go to show that the defendants' father viz., Francis had filed the said suit. Even the plaintiff's father viz., Chellamuthu was one of the defendants in the said suit and in the said suit, the Court has declared that the plaintiff in the said suit viz., Francis is the owner of Survey No.30, new Survey Nos.112 and Cont'd..
- 15 - O.S. No.6811/2017 113 measuring 1 acre 20 guntas and 00-32 guntas and directed the defendants in the said suit to remove unauthorised construction, sheds and structures put up by them and to remove the crushers from the suit schedule property and directed the defendants to deliver vacant possession of the suit property in the said suit to the plaintiff and now, Execution is pending for executing the said decree, and during pendency of the said Execution Petition, plaintiff has filed the present suit - which clearly goes to show that with an intention to create obstruction for executing the said decree, the plaintiff has filed the present suit. Therefore, it appears that when already Civil Court has come to the conclusion that the defendants' father viz., Francis is the owner of old Survey No.30, new Survey Nos.112 and 113, and there is a decree passed directing the defendants in the said suit to remove all the construction made by them and handover vacant possession of the land, now once again plaintiff cannot claim to be in settled possession of the suit schedule property - which is part and parcel of the said land.
Cont'd..
- 16 - O.S. No.6811/2017
18. Even if plaintiff's Counsel has argued that D.W.1 has admitted about the fact that the suit property and the defendants' property are different, as rightly pointed out by the defendants' Counsel, the said admission of D.W.1 is a stray admission and hence, the said admission cannot be picked up for holding against the defendants. Further more, as the plaintiff has approached this Court claiming to be in possession of the suit schedule property and interference of the defendants in his possession, it is the plaintiff who has to prove his case independently and he cannot claim decree on the basis of weakness in the defence of the defendants.
19. Therefore, when plaintiff has failed to produce sufficient evidence to show about existence of the suit schedule property and his title over the suit schedule property, he cannot claim any possession over the suit schedule property. Hence, the question of defendants' interfering with his possession over the suit schedule property does not arise at all and plaintiff is not entitled Cont'd..
- 17 - O.S. No.6811/2017 for permanent injunction as claimed. Therefore, Points 1 to 3 are answered in negative.
20. ISSUE No.4 : For my reasons and discussion on the above Issues, I proceed to pass the following -
ORDER Suit of the plaintiff is dismissed with cost.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 13th day of January, 2021.) (MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..
- 18 - O.S. No.6811/2017
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFF:
Examined on:
P.W.1 : Loganathan C. 30-08-2018
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Exs.P.1 to : Self-assessment property tax paid forms.
P.5
Ex.P.6 : Utthara Pathra.
Ex.P.7 : Khata certificate.
Ex.P.8 : Extract of register of houses and vacant
sites.
Ex.P.9 : Office copy of the complaint.
Exs.P.10 to: Electricity bills and receipts.
P.12 O.S. No.6132/2017.
Exs.P.13 : Receipts issued by Bangalore-One.
and P.14 Exs.P15 : Two photographs. and P.16
3. WITNESS EXAMINED FOR THE DEFENDANTS:
D.W.1 : Nirup Francis 07-09-2019
4.DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
Exs.D.1 : Endorsements.
and D.2
Ex.D.3 : Certified copy of the Grant order.
Ex.D.4 : Certified copy of the loan clearance letter.
Ex.D.5 : Certified copy of Official Memorandum.
Ex.D.6 : Certified copy of the letter of the Divisional
Commissioner.
Ex.D.7 : Certified copy of the letter of the Planning
Authority.
Cont'd..
- 19 - O.S. No.6811/2017
Ex.D.8 : Certified copy of the letter requesting for
concession in payment of fees at the time of conversion of land.
Ex.D.9 : Certified copy of the order granting permission for construction of Factory. Ex.D.10 : Certified copy of the Podi extract. Ex.D.11 : Certified copy of Aakaarband. Ex.D.12 : Five R.T.C. extracts (marked together). Ex.D.13 : Mutation register extract. Ex.D.14 : Three tax paid receipts (marked together). Ex.D.15 : Certified copy of the letter of the BDA. Ex.D.16 : Two Khata certificates (marked together). Ex.D.17 : Extract of the register of houses and vacant sites.
Ex.D.18 : Two development tax paid receipts (marked together).
Ex.D.19 : B.B.M.P. tax paid receipt. Ex.D.20 : Electricity bill.
Ex.D.21 : Survey report of the Assistant Commissioner.
Ex.D.22 : Certified copy of the decree drawn in O.S. No.2696/1998.
Ex.D.23 : Certified copy of the order sheet in Execution 2598/2010.
(MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..