Bangalore District Court
Sri N. Krishnamurthy Yadav vs Bangalore Mahanagara Palike on 4 December, 2015
C.R.P. 67) Govt. Of Karnataka
Form
No.9(Civil)
Title sheet
for
Judgment
in Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF XVI ADDL. CITY CIVIL AND SESSIONS
JUDGE, BANGALORE CITY.
(CCH.NO.12)
PRESENT : SRI MANJUNATH NAYAK,
B.A.L.,LL.B.,
XVI ADDL. CITY CIVIL &
SESSIONS JUDGE,
BANGALORE CITY.
DATED: 4th DECEMBER, 2015.
ORIGINAL SUIT NO. 1803/2000
****
PLAINTIFF : Sri N. Krishnamurthy Yadav,
S/o Sri Narasimhaiah,
Major, R/a No.14-15,
Narasimhaiah Layout
Kadugondanahalli,
Bangalore -560 045.
(By Sri M.S.Purushothama Rao Advocate)
- Vs -
DEFENDANTS: 1. Bangalore Mahanagara Palike,
N.R. Square, Bangalore-560 002,
Represented by its Commissioner.
2 O.S.No.1803/2000
2. The Assistant Executive Engineer,
Hebbal Division,
Bangalore Mahanagara Palike,
Queens Road, Bangalore-560 001.
3. The Estate Officer,
Bangalore Mahanagara Palike,
N.R. Square, Bangalore-560 002,
4. The Chief Engineer,
Bangalore Mahanagara Palike,
N.R. Square, Bangalore-560 002,
5. The Assistant Revenue Officer,
Hebbal, Bangalore Mahanagara Palike,
Queens Road, Bangalore-560 001.
(By Sri N.R.Jagadeeshwara, Advocate)
****
Date of institution of the suit 13-03-2000
Nature of the suit: PERMANENT INJUNCTION
Date of the commencement 22-10-2009
of recording of evidence:
Date on which the Judgment 04-12-2015
was pronounced
Total duration Year/s Month/s Day/s
15 08 21
*******
JUDGMENT
The plaintiff filed this suit claiming the decree for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit property.
3 O.S.No.1803/2000
2. The case of the plaintiff, as made out in the plaint, is as follows:
The suit property described in the plaint schedule is a premises bearing old Katha No.1106-1108, Ward No.94, Hebbal Division, Bangalore, measuring 68' x 260'. The plaintiff is the owner in possession of the suit property. The plaintiff's father by name Narasimhaiah has purchased the Gramatana land in Kadugondanahalli, vide Sale Deed dated 09-09-1963 from one Smt. Subbammal W/o Dharmalingam and her children. The plaintiff's vendor had purchased the said property from one Shamanna on 31-03-1947. Since from the date of purchase, plaintiff's father has been in possession and enjoyment of the suit property. The portion of the suit property is a rocky land. The property purchased by the plaintiff's father was recognized by Kadugondanahalli village Panchayath as an urban property and his name was mutated in the katha extract and he was paying tax to the Grama Panchayath. The portion of the rocky land was quarried with the permission of the department of Mines and Geology. After the death of his father, plaintiff has been in possession and enjoyment of the suit property by paying tax. After the suit property was included within the area of Bruhuth Bangalore Mahanagara Palike (BBMP), property 4 O.S.No.1803/2000 came to be treated within the purview of Hebbal Division of Bangalore Mahanagara Palike. After the inclusion of the area within the purview of BBMP, plaintiff made an application for change of katha. Since the property was assessed by Kadugondanahalli Grama Panchayat, all that was required is only to note the same in the books of Bangalore Mahanagara Palike and levy the assessment and collect the tax. The ownership will have to be automatically recognized by the Bangalore Mahanagara Palike, as the plaintiff's father was treated as owner of the suit property by the Kadugondanahalli Grama Panchayath. On account of some rival claim by some local people, who are enemical towards the plaintiff, there was some allegation that the plaintiff attempted to put up some construction and it was stopped half way by the rival claimants. There was no dispute between the plaintiff and Bangalore Mahanagara Palike for recognizing the claim of the plaintiff. The Inter se dispute between the plaintiff and third parties has nothing to do with Bangalore Mahanagara Palike. During the year 1997, plaintiff made an application for change of katha in his name. The Assistant Revenue Inspector has given an endorsement calling upon the plaintiff to furnish the records. 5 O.S.No.1803/2000 The plaintiff produced the death certificate of his father and genealogical tree. In spite of repeated request and demand, plaintiff has not received any communication. The plaintiff has been in possession and enjoyment of the suit property and when he gone to the suit property, he came to know that some of the officials of the defendant are trying to measure the property. The plaintiff learnt that the defendant is making arrangement to take possession of the suit property. The defendants have no right, title and interest over the suit property. In spite of the same, they are trying to interfere with the plaintiff's possession and enjoyment of the suit property. On all these grounds, plaintiff claimed a decree for permanent injunction against the defendants in the above terms.
3. In response to the summons issued by this Court, defendants appeared through their counsel and filed the written statement and specifically contended that the suit is not maintainable in law or on facts. According to the defendants, plaintiff not complied Sec.482 of K.M.C. Act and on this ground alone, suit is liable to be dismissed. The defendant denied the other plaint averments regarding plaintiff's title, ownership and possession over the suit property. According to the defendant, 6 O.S.No.1803/2000 neither the plaintiff or his vendor have any right, title and interest over the suit property. The Bangalore Urban District Commissioner has ordered that the sale transaction in favour of the plaintiff's father on 09-09-1963 is in respect of a Government land and said transaction has not taken place. The Tahsildar and BDO has not recognized the title of the purchaser. The physical possession of the property had not taken by them. The Kadugondanahalli Grama Panchayath has no authority to issue katha and collect tax. The documents in possession of the plaintiff are all created for the purpose of this suit. Neither the plaintiff nor his father has been in possession of the suit property at any point of time. The verification of the documents shows that the suit property comes within the jurisdiction of Devarajeevanahalli notified area and assigned as property No.2/2 and it does not tally with the property bearing katha No.1053-1108. The defendant Corporation never recognized the claim of the plaintiff. The Corporation has duty to safeguard the Government land. There are several objections from the people, including the local Corporator, by alleging that plaintiff has concocted the documents to grab the government land. The suit for bare injunction, without seeking 7 O.S.No.1803/2000 the relief of declaration, is not maintainable. On all these grounds, defendants prayed for dismissal of the suit with costs.
4. On the basis of the above pleadings of both the parties, following issues were framed:
1. Whether the plaintiff proves the alleged lawful possession, use and enjoyment of the suit schedule property as on the date of the suit?
2. Whether the plaintiff further proves the alleged obstructions by the defendants?
3. Whether the plaintiff is entitled to the suit relief sought against the defendants?
4. What order or decree?
5. To prove the above issues and to substantiate their contentions, plaintiff examined before this Court as PW-1 and two witnesses on his behalf as PW-.2 and 3 and got marked Ex.P-1 to 21 documents. On the other hand, defendants examined its official before the Court as DW.1 and got marked Ex.D-1 to D-10 documents.
6. I have heard the arguments of both the parties.
7. By considering the pleadings, oral and documentary evidence of both the parties and also the arguments canvassed by them, I answer the above issues in the following, because of my below-discussed reasons:8 O.S.No.1803/2000
ISSUE NO.1 : IN THE NEGATIVE.
ISSUE NO.2 : IN THE NEGATIVE.
ISSUE NO.3 : IN THE NEGATIVE.
ISSUE NO.4 : AS PER FINAL ORDER.
REASONS
ISSUE NO.1:-
8. The plaintiff, who was examined before this Court as PW-1, has reiterated the plaint averments in his examination in-chief affidavit and deposed about his father owning the suit property and having katha in his name, when the suit property was within the limits of Kadugondahalli Grama Panchayath.
PW.1 further deposed that after the death of his father, he has been in possession and enjoyment of the suit property and katha was changed in his name. PW-1 further deposed that after the suit property came within the limits of Bangalore Municipal Corporation, he has applied for the change of katha. But, Municipal Corporation has not obliged for his request. PW- 1 further deposed that some persons, who are in enmity with him, are trying to instigate the defendants and on the basis of their instigation, defendants have interfered with their possession and enjoyment of the suit property. 9 O.S.No.1803/2000
9. The plaintiff produced the copy of the Sale Deed dated 09-09-1963 as per Ex.P-1. The copy of Sale Deed dated 13- 03-1947 is marked as per Ex.P-2. The receipts dated 04-01- 1979 and 03-06-1979 were marked as per Exs.P-3 & P-4. The encumbrance certificates for the period from 01-04-1963 to 07- 03-1998 were marked as per Ex.P-5. Exs.P-6 to P-11 are the tax paid receipts. The approved plan is marked as per Ex.P-12. Ex.P-13 is the building license obtained by the plaintiff. Ex.P- 14 is the katha of the suit property. Ex.P-15 is the demand register extract. Ex.P-16 is the judgment and decree passed in R.A.No.55/1973. Ex.P-17 is the acknowledgment issued by the Executive Officer of the Taluka Development Board. The Form No.J is marked as per Ex.P-18. Copy of the legal notice issued by the plaintiff is marked as per Ex.P-19. Exs.P-20 & 21 are the tax paid receipts relating to the suit property.
10. The plaintiff examined one M.Nanjappa, S/o Muthappa as PW.2 and he deposed that the plaintiff and his father were in possession and enjoyment of the suit property and they have put up 5 shops, which were half constructed and not completed. PW.2 further deposed that the plaintiff's father Narasimhaiah has purchased this property during the year 1963 10 O.S.No.1803/2000 from one Sathyamurthy and his mother and brothers and they were in continuous and undisturbed possession of the suit property.
11. The plaintiff examined one Purushotham S/o Venugopal as PW.3 and he deposed that he is the resident of Kadugondanahalli and he has seen the suit property and it is originally belong to plaintiffs father Narasimhaiah. PW.3 further deposed that during his life time, plaintiff's father has been in possession and enjoyment of the suit property and there were five half constructed shops in the suit property and Nursery in another portion of the suit property.
12. The defendants examined their Asst. Revenue Officer as DW-1 and he deposed that Kadugondanahalli village is a jodi inam village and by virtue of Inam Abolition Act, entire village was vested with the Government on 01-02-1959 and the Government has not granted any occupancy right in favour of anybody. DW.1 further deposed that Inamdar has no right to convey the property to anybody, much less to the plaintiff's father. The transaction in favour of the plaintiff's father was taken place subsequent to the vesting of the land with the Government. DW.1 further deposed that as per the 11 O.S.No.1803/2000 documents, Tahsildar and BDO has not recognized the plaintiff's father as the owner of the suit property. As such, the plaintiff has not derived any right, title, interest over the suit property. DW.1 further deposed that, it is defendant No.1, who is in possession and enjoyment of the suit property.
13. Two documents each were marked as per Ex.D.2 to
5. The photos confronted to PW.1 during the course of cross- examination were marked as Ex.D.2 to 5. Again during the course of evidence of DW.1, again some other documents were marked as Ex.D.2 to D.10. The photos marked as per Ex.D.2 to 5 were considered as Ex.D.2 (a) to D.5(a). The defendants produced the copy of representation given by the plaintiff is marked as per Ex.D-1. Ex.D-2 is the property register extract. The plan of the property is marked as per Ex.D-3. The photographs are marked as per Exs.D-4 to 9 and C.D. is marked as per Ex.D-10.
14. From the rival pleadings and the evidence of both the parties, it appears that there is serious dispute between them regarding the title and ownership of the plaintiff over the suit schedule property. The defendants not only denied the plaintiff's title, ownership and possession over the suit 12 O.S.No.1803/2000 property, but also contended that the suit property belonged to them and it is the government land they are the owners of the same and it is proposed to be used as civic amenity site by them. The defendants are the statutory bodies and they claim that the suit schedule property belonged to them and it is in their ownership. The defendants, apart from denying the plaintiff's title over the suit schedule property and claiming the ownership over the suit schedule property, also disputed the maintainability of this suit for bare injunction, without seeking the relief of declaration of title by the plaintiff. A specific pleading in this regard can be found in para 10 of the written statement of defendants. In spite of the specific denial of his title over the suit schedule property and defendants' setting up title in themselves and also specifically disputed maintainability of the suit for injunction simplicitor, without seeking the relief of declaration, plaintiff has not made any attempt to amend the plaint and seek the relief of declaration or to convert this suit for independent and comprehensive suit for declaration of title.
15. Regarding the maintainability of the suit for bare injunction, without seeking the relief of declaration, when there 13 O.S.No.1803/2000 is serious dispute as to the title, learned counsel for defendants in support of his arguments, has relied upon the decision of Hon'ble Supreme Court reported in (2008)4 SUPREME COURT CASES 594 (Anathula Sudhakar V/s. P. Buchi Reddy (dead) by LRs and others). The Hon'ble Supreme Court, in the above decision, discussed in length as to the maintainability of the suit for bare injunction, without seeking the relief of declaration, when there is serious dispute as to the title over the immovable property. The Hon'ble Supreme Court, in para 21 of the said judgment, has summarized the position regarding the maintainability of the suit for injunction relating to immovable property. As per the legal position laid down by the Hon'ble Supreme Court, when there is serious dispute regarding title over the immovable property and when the plaintiff claims possession on the basis of title, that too in respect of the vacant site, a suit for injunction simplicitor, without seeking the relief of declaration is not maintainable. According to the Hon'ble Supreme Court, when a finding regarding the possession cannot be decided, without giving a finding regarding the title, a suit for injunction simplicitor is not maintainable. By relying upon the above decision of the Hon'ble 14 O.S.No.1803/2000 Supreme Court, Hon'ble High Court of Karnataka, in another decision reported in ILR 2010 KARNATAKA 2996 (Smt. Siriyala and others V/s. B.N. Ramesh) has also laid down the same principle and held that when there is serious dispute as to the title and ownership over the immovable property and there is a rival claim of title over the property, a suit for bare injunction, without seeking the relief of declaration of title is not maintainable. Keeping in mind the ratio laid down in both two decisions, Now I have to consider as to whether this suit for injunction simplicitor filed by the plaintiff, without seeking the relief of declaration of title, is maintainable or not.
16. The plaintiff claims title over the suit schedule property on the basis of the sale deed dated 09-09-1963 executed in favour of his father by one Smt. Subbammal. The plaintiff has produced certified copy of the sale deed as per Ex.P-1. The plaintiff has produced certified copy of another sale deed as per Ex.P-2, through which the plaintiff's father's vendor has purchased the suit schedule property. The suit schedule property was within the limits of Kadugondanahalli Grama Panchayath and after the extension of BBMP, it came within the limits of BBMP. According to defendants, suit property was a 15 O.S.No.1803/2000 Grama Panchayath land and after it came within the limits of BBMP, it became their property and it is being used as Civic Amenity Site. Hence, neither the plaintiff nor his father was having title, ownership and possession over the suit schedule property.
17. Of course, plaintiff has produced the sale deed of his father, sale deed of his father's vendor, tax paid receipts and demand register extracts standing in the name of his father. All these documents produced by the plaintiff were the certified copies and they are for the period up to the year 1908. But, absolutely no documents were produced to show that the suit property was standing in the name of the plaintiff or his father, after the suit property came within the limits of BBMP. Admittedly, the suit property came within the limits of BBMP long back during the year 1995. Ex.D-1 is the representation given by the plaintiff to the BBMP during the year 1999. Through the said representation, the plaintiff requested defendants to change Khatha in his name, as it belongs to his father and Khatha of the same was standing in the name of his father, when the suit property was within the limits of Kadugondanahalli. The page 2 of Ex.D1 also shows that the 16 O.S.No.1803/2000 suit property was standing in the name of Grama Panchayath and it was shown as Grama Panchayath Property. Ex.D-2 is the book relating to the assessment maintained by the Taluk Development Board, Bangalore. Even in Ex.D-2(a) the suit property was shown as Grama Panchayath land. So, though the plaintiff produced the assessment extract shown in the name of his father, subsequent document maintained by the Taluk Board and grama panchayath shows that it was shown as Grama Panchayath Property. Accordingly, when the suit property came within the limits of BBMP, it became the property of BBMP. Now, defendants claim that it is their property.
18. Ex.D-4 to Ex.D-10 are the photos with C.D. relating to the suit property. Admittedly, suit property is covered with rocky lands as shown in those photos. A board is also put in the suit property to show that it is the property belonging to BBMP, as evident from Ex.D-6 and D-7. Since the khatha of the suit property was not standing in the name of the plaintiff and his father, as per the BBMP records, the plaintiff would have filed a suit for declaration of his title, rather than filing the suit for bare injunction.
17 O.S.No.1803/2000
19. Now, it is relevant to refer one of the statements given by the platinff/PW-1 during the course of his cross examination. In para 12 of the cross examination of PW-1, he specifically deposed that he filed the suit only on account of non changing the khatha by defendant corporation and there was no any other reasons for him to file this suit. Ex.D.-1 representation given by the plaintiff is also to enter the katha in his name. So, main allegation of the plaintiff is that the defendant Corporation has not entered his name in the khatha extract of the suit schedule property. So as to direct defendant corporation to enter khatha in the name of the plaintiff, plaintiff's title over the suit schedule property has to be established. For establishment of his title and ownership over the suit schedule property, plaintiff's title has to be declared by this court. On this score also, plaintiff would have filed a comprehensive and independent suit for declaration of title.
20. Admittedly the suit property is a vacant land. Even though there was some attempts by the plaintiff to construct a building in the suit schedule property, when it was within the limits of Kadugondanahalli Grama Panchayath, said attempt was not materialized. Thereby the suit property remained as a 18 O.S.No.1803/2000 vacant land. Even though in the plaint schedule the plaintiff described the suit property as premises, there is no such building or structures in the suit property. As admitted by the plaintiff and his witness, as shown in the admitted photos, major portion of the suit site is covered by rocks. Even though one of the witnesses examined for the plaintiff as PW-2 said that the plaintiff is using the suit property as a nursery, neither any pleadings nor there is any evidence to prove and establish the same. Therefore, one can safely say that the suit property is a vacant land.
21. In case of a vacant land, possession presumed to be with its owner. As held by the Hon'ble Supreme Court in the above referred decision in Anathulla Sudharkar's case, where de jure possession is to be established on the basis of title to the property, as in case of vacant site, issue of title may directly and substantially arise for consideration. Therefore, without finding regarding the title, it will not be possible to decide issue of possession in the case like that. This rule is aptly applicable to the present case. Since the suit property is a vacant land, without a finding regarding the title, no finding regarding the possession can be given in the suit like this. 19 O.S.No.1803/2000 Because of this reasons also, plaintiff would have filed a comprehensive and independent suit for declaration of title.
22. Apart from this suit, there were series of litigations in respect of the suit schedule property and some of those litigations were still pending before other judicial forums. The plaintiff himself produced the judgments passed in RA No.55/1973 as per Ex.P-16. The Plaintiff's father has filed a suit against one Kuppuswamy and others, in O.S.No.279/1969 claiming the relief of declaration and injunction. Even though said suit was dismissed by the trial court, the plaintiff succeeded in the appeal, as evident from Ex.P-16 judgment. The plaintiff has no benefit of the said judgment so far as this suit is concerned, because defendants are not the parties to the said suit. The defendants themselves claim that they are owners of the suit schedule property. Under such circumstances, said judgment would not help the plaintiff's case in establishing his title and possession over the suit schedule property against these defendants.
23. Even though there were series of litigations in respect of the suit schedule property, the plaintiff has never pleaded about the same in the plaint. The plaintiff, who was 20 O.S.No.1803/2000 examined before this court as PW-1, admitted during the course of his cross examination regarding all those litigations in respect of the suit schedule property. The plaintiff has admitted that appeal is pending before the Hon'ble High Court of Karnataka in challenging the judgment passed in O.S.No.4997/1986. The plaintiff/PW-1 also admitted that he has filed the said suit, which was dismissed and appeal is now pending before the Hon'ble High Court of Karnataka. The plaintiff/PW-1, in page 14 of his cross examination, also admitted that one Muniyappa has filed the suit against him and now the appeal is pending before the Hon'ble High Court of Karnataka. The plaintiff/PW-1 also admitted that one Gopalappa has filed a suit in O.S.No.9012/1980 and the said suit is dismissed. Even though there were series of litigations in respect of the suit property and some of them were disposed off and the appeal is pending, plaintiff has not whispered anything about the same in the plaint or during the course of his evidence, which clearly indicate that he has not come to the court with clean hands, to get the equitable and discretionary relief of injunction. In spite of the same, when there are series of litigations and rival claim of title, plaintiff would have filed a 21 O.S.No.1803/2000 comprehensive suit for declaration of title against this defendant, rather than fighting the litigation by filing this suit for bare injunction.
24. The defendants tried to impress upon this court that the Kadugondanahalli village was Jodi Inam village and by virtue of the Inam Abolition Act, entire village was vested with the Government. Therefore, neither the Inamdar nor the plaintiff's father has any right over the suit schedule property, as they have not filed any application for re-grant of the Inam land. The defendant also contended that the Tahsildar and taluka board has not recognized the plaintiff as the owner of the suit property. As a reply to this contention of the defendants, learned counsel for the plaintiff, by drawing the attention of this court to section 9 of the Mysore Inam Abolition Act, has contended that since the suit property is urban property, after the introduction of the Inam Abolition Act, it automatically vest with the owner and there is no question of re grant. Again, whether re-grant of property is necessary or not, in view of the introduction of Inam Abolition Act, or not, is a serious question of law and fact, which cannot be decided in a suit for injunction. On these score also, I have to say that the 22 O.S.No.1803/2000 plaintiff would have filed the suit for declaration of title, rather than filing the suit for injunction. Hence, in view of the ratio laid down by the Hon'ble Supreme Court and our High Court in the above referred decisions, I have to say that the suit for injunction simplicitor, without seeking the relief of declaration, is not maintainable.
25. Now let me proceed with my discussion by accepting that the suit for injunction is maintainable. For his success in this suit, plaintiff has to prove that he has been possession and enjoyment of the suit property. If this court draws its attention to the documents produced by the plaintiff, all those documents were of the year 1963 to 1980, when the suit property were within the limits of Kadugondanahalli Grama Panchayath. There are no documents standing in the name of the plaintiff or his father, after the suit property came within the limits of BBMP. There is no evidence before this court to show the plaintiff doing some positive acts in respect of the suit property, including the payment of tax and assessment, after the year 1980 and after suit property come within the limits of BBMP. Therefore, those documents would not help the plaintiff's case to prove his actual possession and enjoyment of the suit 23 O.S.No.1803/2000 schedule property, on the date of filing this suit during the year 2000.
26. Ex.P-1 sale deed executed in favor of the plaintiff's father, though shows the measurement and boundaries of the suit property, there is no reference regarding the survey number or property number in the said sale deed to say that it is relating to the suit schedule property. Even in Ex.P.2 sale deed there is no reference of the survey number and property number. The boundaries in the said sale deed do not tally with the boundaries of the suit schedule property shown in the plaint. Though the plaintiff says that Ex.P-16 judgment is relating to the suit schedule property, again the boundaries of the property referred in the said judgment do not tally with the suit schedule property. Therefore, all those documents do not inspire confidence to say that the plaintiff is still in actual physical possession of the suit schedule property. There is no cogent and convincing evidence on record to show that actual and physical possession of the suit schedule property still with the plaintiff, even after the suit property came within the limits of BBMP. The oral testimony of PW-1 to 3 also do not inspire confidence because of the inconsistent and contradictory 24 O.S.No.1803/2000 statement given by them regarding the actual use of schedule property by the plaintiff. As I said earlier, without there being pleadings and evidence, PW-2 went on to say that the suit property was being used by the plaintiff as a nursery. Therefore, oral testimony of PW-2 and 3 is not helpful to the case of the plaintiff to prove that he has been in possession and enjoyment of the suit schedule property.
27. Considering all these aspects, I say that the plaintiff's possession and enjoyment of the suit schedule property as an owner of the same is not proved before the court. The plaintiff can be said as in possession and enjoyment of the suit schedule property, provided he proves his title and ownership over the suit schedule property. Since it is a vacant land, without establishment of the plaintiff's title over the suit property, he cannot be said that he has been in actual and physical possession of the suit schedule property. The plaintiff even prima-facie not established his title over the suit schedule property, to say that he has been in possession of the suit property. Therefore, I answer issue No.1 in the negative. 25 O.S.No.1803/2000
ISSUE NO.2:-
28. This issue is regarding the alleged obstruction caused by the defendants for the plaintiff's possession and enjoyment of the suit property. In view of my finding on issue No.1, plaintiff's possession and enjoyment of the suit schedule property is not proved. Under such circumstances, question of the defendants interfering with the plaintiff's possession and enjoyment of the suit property would not arise. In spite of the same, if this court considers the evidence on record, there is no cogent evidence to show that defendants have actually interfered with the plaintiff's alleged possession and enjoyment of the suit schedule property. The plaintiff, who was examined before this court as PW-1, in page 12 of his cross examination specifically deposed that when he applied for change of Khatha to the defendants during the year 1998, they did not change the Khatha. Therefore, he filed the present suit. PW-1 has further deposed that he filed the suit only on account of not changing the Khatha by the defendant Corporation and not for any other reasons. This would demonstrate that there is no such interference and obstruction caused by the defendant. Not changing the Khatha would not amount to interference so 26 O.S.No.1803/2000 as to claim the relief of injunction. It may be a cause of action for the plaintiff to file the suit for declaration of title and for mandatory injunction directing defendants to change the Khatha. But, such relief is not claimed by the plaintiff in this suit. Therefore, I hold that the plaintiff has not proved the alleged interference and obstruction, caused by the defendants, for the alleged possession of the plaintiff over the suit property. Accordingly, I answer issue No.2 in the negative.
ISSUE No.3:-
29. In view of my finding on the above issues, the plaintiff has not proved his possession and enjoyment of the suit schedule property and the alleged interference. In view of my finding on issue No.1 the suit for injunction without seeking the relief of declaration is not maintainable. Therefore the plaintiff is not entitled for the relief of injunction as claimed in the suit. Accordingly, I answer this issue in the negative.
ISSUE No.4:-
30. In view of my finding on the above issues, the suit filed by the plaintiff is liable to be dismissed with costs. Before parting with my discussion, I shall make it very clear that the dismissal of this suit would not come in the way of the plaintiff in filing an independent and comprehensive suit for declaration 27 O.S.No.1803/2000 of title with any other consequential relief. With this observation, I proceed to pass the following order:
ORDER The suit filed by the plaintiff is dismissed with costs.
***** (Dictated to the Judgment Writer, transcribed by her, the transcript corrected by me, signed and then pronounced by me in open Court on this the 4th day of December, 2015).
(MANJUNATH NAYAK) XVI ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
()()()()()()() ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:-
PW.1 N. Krishnamurthy Yadav
PW.2 M. Nanjappa
PW.3 V. Purushotham
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:-
Ex.P-1 Copy of Sale Deed dt: 9-9-1963
Ex.P-2 Copy of Sale Deed dt: 13-3-1947
Ex.P-3 & 4 Receipts dt: 4-1-79 & 3-6-79
Ex.P-5 Encumbrance certificates
Ex.P-6 to 11 Tax paid receipts.
Ex.P-12 Approved plan
Ex.P-13 Building license.
Ex.P-14 Katha
Ex.P-15 Demand register extract
Ex.P-16 Judgment and decree passed in RA 55/73
Ex.P-17 Acknowledgment.
28 O.S.No.1803/2000
Ex.P-18 Form No.J
Ex.P-19 Copy of legal notice.
Ex.P-20 & 21 Tax paid receipts.
LIST OF WITNESSES EXAMINED FOR DEFENDANTS:-
DW.1 G. Linganna
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:-
Ex.D-1 Copy of representation.
Ex.D.2(a) to Photos.
5(a)
Ex.D-2 Property register extract.
Ex.D-3 Plan of the property
Ex.D-4 to 9 Photographs
Ex.D-10 C.D.
(MANJUNATH NAYAK)
XVI ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE.
29 O.S.No.1803/2000
(Judgment pronounced in open
Court vide separate order).
ORDER
The suit filed by the plaintiff
is dismissed with costs.
(MANJUNATH NAYAK)
XVI ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE.
30 O.S.No.1803/2000