Bangalore District Court
Manipal Centre Apartment vs Dr.V.A.Pinto on 18 January, 2017
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 18th January 2017
PRESENT
SRI MUSTAFA HUSSAIN.S.A., B.A., LL.M.
XVIII Addl.City Civil Judge.
O.S.No.2017/2004
Plaintiffs 1. Manipal Centre Apartment
Owners Association,
A society registered under the
Karnataka Societies Registration Act,
1960 having its registered office at
No.S 723, Manipal Center,
47, Dickenson Road,
Bangalore - 560 042.
Reptd by its Honorary Secretary
Smt.Gayathri Nayak.
2. M/s. ICDS Ltd.,
A company registered under the
Companies Act, 1956 having its
registered office at Syndicate House,
Upendra Nagar, Manipal - 576 119
And its branch office at:
No.SG-01, Manipal Centre,
No.47, Dickenson Road,
Bangalore - 560 042,
2 O.S.No.2017/2004
Reptd by its GPA Holder
P.Bharadwaja Aithal.
[By Sri.H.S.H./B.G., Advocates]
/VS/
Defendants: 1. Dr.V.A.Pinto,
S/o B.Pinto
Aged about 65 years,
Residing / having his place of
business at : Pinto Towers,
No.31, Residency Road,
Bangalore - 560 025.
2. Dr.(Mrs.) P.Pinto,
W/o Dr.V.A.Pinto,
Aged about 60 years,
Residing / having her place of
business at : Pinto Towers,
No.31, Residency Road,
Bangalore - 560 025.
[By Sri.S.K., Advocate]
Date of institution of 17.03.2004
suit
Nature of the suit Permanent Injunction
(Suit on pronote, suit
for declaration and
possession suit for
injunction, etc.
Date of the 3.7.2010
commencement of
recording of the
3 O.S.No.2017/2004
evidence.
Date on which the 18.01.2017
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 12 10 01
(MUSTAFA HUSSAIN.S.A.)
XVIII Addl.City Civil Judge, Bangalore.
JUDGMENT
The plaintiffs have filed this suit against the defendants for the relief of permanent injunction with costs.
2. The brief and relevant facts as alleged in the plaint are as follows:
The plaintiffs have come up with the suit in respect of property bearing City Survey No.360, measuring on the northern side 173+205 feet bounded by private property city survey No.361, on the southern side 467 feet bounded by private property city survey No.359, on the eastern side 270 feet bounded by private property and on the western side 317 + 46 feet bounded by Dickenson road which is the subject matter of the suit hereinafter referred to as suit property for the purpose of brevity and convenience.4 O.S.No.2017/2004
3. The plaintiffs have alleged that 1st plaintiff is a society registered under the Karnataka Societies Registration Act, 1960 and the objectives inter alia of promoting the welfare of the owners of the apartments in the building known as Manipal Center constructed in the suit property. It is further alleged that 2nd plaintiff is a registered company purchased the suit property for a valuable consideration of Rs.12 Lakhs through court auction in final decree proceedings arising out of OS.No.111/1971 and OS.No.112/1971 on the file of Civil Judge, Civil Station, Bangalore. It is further alleged that the said sale was confirmed on 21.8.1973 and the sale deed was also executed on 8.3.1974 in favour of 2nd plaintiff.
4. It is further alleged that 2nd plaintiff constructed the building known as Manipal Center upon the suit property which apart from common area consisting of a building with 365 apartments which were sold and transferred to different persons. It is further alleged that all the owners of the apartments and the 2nd plaintiff are the members of the 1st plaintiff association.
5. It is further alleged that katha of the suit property was also transferred in to the name of 2nd plaintiff. It is further contended that the city survey records reveals that the property bearing city Sy.No.360 is under the ownership and 5 O.S.No.2017/2004 possession of 2nd plaintiff and the 1st plaintiff and its members enjoys the ownership and possession with the 2nd plaintiff. It is further alleged that the then members of the 1st plaintiff association are the absolute owners of the suit property and have been in continuously and peaceful possession and enjoyment of the entire suit property. It is further alleged that the common area in the suit property adjacent to the building Manipal Center are utilized by the plaintiff for providing parking and other common facilities to the apartment owners and that the plaintiffs have spent consideration amount for maintaining and developing the suit property.
6. It is further alleged that on 20.1.2004, plaintiffs received a communication from the Joint Director of Land Records, Bangalore Division, wherein it was intimated that defendants have sought for revision of city survey records pertaining to city Sy.No.360. It is further alleged that the defendants falsely contended that they are the owners of a portion of the suit property measuring 46 feet north - south and 173 feet east - west on the ground that they are also auction purchasers of the said property through court auction by virtue of decree in OS.No.111/1971. It is further alleged that the claim of the defendant is false and fraudulent and the property being claimed by the defendants is belonging to them.
6 O.S.No.2017/2004It is further alleged that the sale certificate of the defendant is dated 15.10.1973 which was subsequent to the sale in favour of plaintiffs. It is further alleged that the said property was already sold in favour of 2nd plaintiff and that being so, the defendants have no right or interest over the suit property.
7. It is further alleged that on 15.3.2004 the defendants came along with their henchmen and attempted to interfere in their possession and enjoyment by parking their vehicles in the portion of suit property. It is further alleged that the building Manipal Center is a commercial building and if the apartment owners and their clients are prevented from parking in the common area, they will be put to hardship and inconvenience. Hence the suit.
8. The defendants have resisted the suit by filing their written statement interalia contending as under:
Defendants have denied the alleged title and possession of the plaintiffs over suit property. It is further contended that plaintiffs have not placed any material to prove that city survey No.360 bears the same schedule as directed in the plaint. It is further contended that the entire case of he plaintiff is doubtful and according to them the property of the plaintiff as shown in the sale certificate dtd.8.3.1974 and the 7 O.S.No.2017/2004 property of the defendants' vendor under sale certificate dtd.16.1.1974 are totally different and individual properties. It is further contended that there is a permanent compound wall which demarcates the property of the plaintiff and the defendants with a gate to the property of the defendants from Dickenson road and hence question of plaintiff's being in possession of the property of the defendants does not arise. Defendants have also denied that the plaintiff is using the adjoining area for parking and other common facilities to its members. It is further contended that there has been an office error made in the entries of the city survey records although plaintiff and defendants are owners of distinct properties and the plaintiffs in order to knock off the valuable property of the defendants have filed this false suit based on alleged city Sy.No.360 with imaginary boundaries.
9. It is further contended that the claim of the plaintiffs that sale confirmed in their favour relates to the land measuring 317+46 feet on Dickenson Road and 205 + 173 feet on the northern side is incorrect and according to the defendants their property is in a portion of the measurement shown in the plaint.
10. It is further contended that their predecessor in title purchased the property No.4 new No.46 with specific 8 O.S.No.2017/2004 boundary as north by private property, east by premises No.47, south by private property and west by Dickenson road measuring north-south 46 feet and east-west 173 feet with a total site area of 8058 feet and thereafter their vendor sold entire property in their favour under registered sale deed dtd. 29.1.1981 for a valuable consideration of Rs.1,60,000/- and put them in possession and enjoyment of the said property. It is further contended that subsequently their was a deed of rectification in respect of typographical error showing the measurement in square meters which has been rectified. It is further contended that subsequently there was a partition within the family and the property purchased from their vendor D. Syed Yonus was fallen to the share of the 1st defendant and his wife. It is further contended that the name of their vendor was also entered in the encumbrance certificate and later katha was transferred in the name of the defendants.
11. It is further contended that the property purchased by the defendants was a tenanted property and one such tenant was the Karnataka State Handicrafts Development Corporation Limited and the said tenant has made correspondence with the original auction purchaser D. Syed Younus and have issued payment receipts. It is further contended that the said tenant applied to the Special Deputy 9 O.S.No.2017/2004 Commissioner on 29.1.1980 requesting to purchase the property in its office and Urban Land Ceiling Authority issued an endorsement dtd.19.2.1980 exercising first option for acquiring the said property for the purpose of usage by Karnataka State Handicrafts Development Corporation Limited and thereafter on 14.5.1980 Special Deputy Commissioner, Urban Land Ceiling directed the auction purchaser D. Syed Younus to execute sale deed in favour of Karnataka State Handicrafts Development Corporation Limited and to complete the sale transaction on or before 18.5.1980. It is further contended that the Karnataka State Handicrafts Development Corporation Limited failed to purchase the said property within the stipulated period of time and hence the auction purchaser D.Syed Younus later sold the suit property in favour of defendants. It is further contended that subsequently a petition was filed for eviction in HRC.NO.10080/1982 which was later compromised and the tenant vacated the property in favour of defendants. It is further contended that subsequently the structure in the said property collapsed and the tenant Karnataka State Handicrafts Development Corporation Limited also informed the defendants that it did not require the premises.
10 O.S.No.2017/200412. It is further contended that another tenant by name Chandra Prakash who was in occupation of the another portion of property No.46 offered to vacate his portion on 21.12.1982 and after receiving a sum of Rs.25,000/- delivered possession of the said portion in favour of 1st defendant. It is further contended that defendants later applied for a sanctioned plan and the Director of Town Planning issued an endorsement to that effect.
13. It is further contended that some third persons without permission of the defendants put up 3 huge hoardings on the foot path in front of entrance to the property No.46 and a complaint was lodged on 5.4.1993 to the Assistant Revenue Officer and another complaint with Deputy Commissioner on 20.11.1993 and these documents shows that the defendants exercised their right of ownership over the said property. It is further contended that defendants also filed a suit for permanent injunction in OS.NO.13/1994 and subsequently the corporation authorities removed the said hoardings.
14. It is further contended that defendants within their property No.46 have engaged the service of M/s. Serve and Volley, Advertising Agents and they have put a hoarding lawfully in side the property No.46 and the 1st defendant has also obtained electricity connection for the purpose of the 11 O.S.No.2017/2004 hoardings. It is further contended that later the corporation authorities interfered with the hoarding and hence the 1st defendant filed W.P.No.22012/2012 and obtained stay order from Hon'ble High Court of Karnataka. It is further contended that one B.R.Lakshmipathi had instituted a suit for specific performance against the auction purchaser D.Syed Younus in OS.No.1940/1981 and the said suit was contested and later the court refused to grant relief of specific performance and directed for refund of the money in favour of the agreement holder.
15. Defendants through their amendment to the written statement have also contended that the plaintiff has falsely pleaded that the City Survey records shows old, incorrect, unrevised and un-rectified Chalta No.360 to be under the ownership and possession of 2nd plaintiff. It is further contended that plaintiffs themselves through their letter dtd. 6.11.2003 and 22.12.2003 addressed to the BBMP clearly acknowledged the ownership of the defendants over the property No.46. It is further contended that the plaintiffs have deliberately pleaded chalta Number in the suit schedule even though there is specific number allotted in the sale deed of the plaintiffs. It is further contended that the title of the property purchased was passed on to M/s. ICDS through court sale 12 O.S.No.2017/2004 deed which was later transferred in favour of the plaintiffs. It is further contended that the sale deed of the plaintiff and the defendants reveal that plaintiff's property was bearing old No.3 new No.47 and the defendant's property is bearing old No.4, new No.46 of the Dickenson Road, Bangalore. It is further contended that defendants' property towards north has a definite rectangular shape.
16. It is further contended that the 2nd plaintiff in the proceedings in WP.No.34208-10/1995 filed a reply statement to the Hon'ble High Court of Karnataka on 13.1.1997 which reveals clear admission of the 2nd plaintiff about the property of the defendants and the said statement made by the 2nd plaintiff before the Hon'ble High Court of Karnataka binds the plaintiffs. It is further contended that the defendants have also produced the inspection report dtd. 19.6.1998 along with sketch which reveals the existence of the defendants' property and the plaintiffs have filed their reply to the inspection report on 30.7.1998 and the observations made in the inspection report reveals that the defendants property was not part of the plaintiff's property and even objection filed by the plaintiff has against the commissioner report dtd. 20.3.2002 also confirming the existence of defendant's property and the commissioner report also identifies the defendant's property.
13 O.S.No.2017/2004It is further contended that there is a clear discrepancy in the boundaries shown in the suit schedule with document No.5 produced by the plaintiffs and the defendants have been in possession and enjoyment of their property. The alleged interference on their part is also denied. It is further contended that plaintiffs ought to have sought for declaration of their title and therefore on all these grounds defendants have sought for dismissal of the suit.
17. On the basis of the rival pleadings and contentions, my learned predecessor has framed the following issues:
(1) Do plaintiffs prove their lawful possession over the suit schedule property as on the date of the suit?
(2) Do plaintiffs prove alleged interference?
(3) What order or decree the parties are entitled to?
18. Plaintiffs got examined their PA Holder as PW1 and got marked Ex.P1 to P14 and closed their side. The defendant No.1 & 2 got examined their PA Holder as DW1 and got marked Ex.D1 to D118 and closed their side.
14 O.S.No.2017/200419. At the stage of argument the learned counsel for the defendants filed application u/s.340 Cr.P.C., to initiate criminal action against the plaintiffs and their representatives alleging that the plaintiffs knowingly and deliberately filed false present suit claiming ownership and possession over CTS No.360 by including two properties ie., premises No.3 belongs to the plaintiffs and premises No.4 belongs to the defendants. It is further contended that even PW1 has lead evidence by swearing false facts and reiterating plaint averments and have also falsely denied the right, title and possession of he defendants over their property. It is also alleged that the plaintiffs have created the documents in order to lay false claim over the property of the defendants and thereby they have committed the offence u/s.209, 193, 199 of IPC r/w Sec.340 of Cr.P.C. and has sought for lodging complaint against the plaintiff before the jurisdictional Magistrate.
20. The plaintiffs have resisted the application by filing their objection by way of counter affidavits denying all the allegations made in the application and have contended that the various documents produced by them establishes their right and possession over the suit property and the plaintiffs have not mislead this court nor have lead any false evidence.
15 O.S.No.2017/2004Much reliance is also placed on various documents produced by the plaintiff as well as the defendants and have contended that the application is devoid of merits. Therefore have sought for dismissal of the application.
21. Argument was head on the suit as well as the application and the application is also taken up for discussion along with the suit.
22. During the course of arguments the learned counsel for the plaintiffs vehemently argued that the 2nd plaintiff purchased the suit property in a court auction for consideration of Rs.12 Lakhs and the sale in favour of 2nd plaintiff was also confirmed by the court. It was further argued that subsequently 2nd plaintiff obtained necessary approval for construction of building in the name of Manipal Center up on the suit property. It was further argued that later apartment building was constructed by the 2nd plaintiff. It was further argued that plaintiffs are using the common area for the purpose of parking and other activities for the benefits of apartment owners and occupants. It was further argued that Ex.P3 is the sale certificate issued by the court on 21.8.1973 which establishes the purchase of the suit property by the 2nd 16 O.S.No.2017/2004 plaintiff. Much reliance was also placed on the boundaries shown in Ex.P3 and it was argued that the property within the boundaries mentioned in Ex.P3 was sold in favour of 2nd plaintiff and the possession was also delivered and the boundaries shown in the suit schedule are on par with the boundaries shown in Ex.P3. It was further argued that subsequently 2nd plaintiff sold an area measuring 1,19,524 Sq. Feet in favour of 1st plaintiff and retained the remaining portion. It was further argued that the sale confirmation in respect of the said property was made in the name of the plaintiff earlier to the sale confirmation in favour of defendants. Much reliance was also placed on the cross examination of DW1 and it was argued that DW1 has also admitted the purchase of suit property by 2nd plaintiff in court auction. It was further argued that under Ex.D3 age of the vendor of defendants by name Syed Younus is only shown as minor. It was further argued that the sale deeds executed in favour of plaintiffs and defendants have to be considered to ascertain the factual position. It was further argued that Ex.D62 & 67 are the same documents wherein no bifurcation is shown and in the sale deed relating to the defendants, name of the Commissioner is not mentioned and there is no reference that a portion of the suit property was sold in favour 17 O.S.No.2017/2004 of vendor of the defendants. It was further argued that the measurement shown in the suit is on par with the measurement shown in Ex.D7. It was further argued that entire material placed on record reveal that entire property in CTS No.360 was sold in favour of plaintiff No.2 and Ex.P12 also reveals that CTS Number was assigned on 8.7.1976. It was further argued that even the boundaries pleaded in their application filed u/s.340 Cr.P.C. are on par with the boundaries shown in the suit schedule and DW1 himself has admitted the existence of CTS No.360 as well as sale confirmation in favour of 2nd plaintiff. It was further argued that the 2nd plaintiff is the purchaser of the entire property as shown in the suit schedule and there was no property available for court auction in favour of vendor of defendants and hence the defendants are laying a claim on the property which is within the boundary of the plaintiff's property.
23. It was further argued that entire suit of the plaintiff is based on the title documents which were executed by the court and there is no false claim made by the plaintiffs nor they have lead any false evidence before the court. It was further argued that various documents produced by the plaintiff and the admission of DW1 clinchingly establishes that 18 O.S.No.2017/2004 the claim of the plaintiff is based on title deed executed by the court and now defendants have falsely come up with the application u/s.340 Cr.P.C., for initiating criminal action against them without any substance in their contention. It was further argued that 1st plaintiff has constructed the apartment building and is in possession of the entire suit property ever since from the date of execution of Ex.P8 and hence possession of the plaintiffs have to be protected by the court.
24. In support of his argument the learned counsel for the plaintiff relied on the decisions reported in :
1.MANU /KA/0118/1977 - Veerappa Shivappa Horadi VS.
Krishna Triyambak Deshpande
2. MANU/SC/0687/1999 - M.S.Ahiawat Vs. State of Haryana & Another.
3. MANU/KA/0168/1972 - The State of Mysore Vs. Nagappa Sannigappa Sannakki & Others
4. AIR 1995 SC 1484 -U.P.State Sugar Corpn.Ltd. Vs. U.P.State Sugar Corpn. Karamchari Assocn. & others.
5. AIR 1973 SC 2190 - Santokh Singh Vs- Izhar Hussain & Anr.
19 O.S.No.2017/200425. Repelling the said arguments, the learned counsel appearing for the defendants argued at equal vehemence stating that the description of the suit property is incorrect. According to him, the office raised its objection at the time of inception of the suit and till date plaintiffs have not complied the office objection. It was further argued that plaintiffs have deliberately not shown the property number in the suit schedule and have only restricted the description of the suit property as CTS.No.360. The learned counsel also drew the attention of the court to plaint para 7 and argued that the plaintiff themselves have pleaded about the existence of the defendants' property. He also relied on Ex.P3 and argued that the property No.46 belonging to the defendants is shown on the northern side and plaintiffs own document at Ex.P3 falsifies their entire case. It was further argued that under Ex.D66 CTS Number is shown as 360 and property numbers are also shown as 3 & 4 and 2nd plaintiff purchased only property No.3 and hence cannot claim any right or possession over the property No.4. He also relied on Ex.D69 and argued that this survey sketch also establishes the existence of property No.3 & 4 independently. It was further argued that defendants filed the application for correction of Ex.D66 before city surveyor and the application came to be rejected and 20 O.S.No.2017/2004 thereafter under Ex.D72 at para 2 an order was passed directing to delete the property No.4 from the City Survey records. It was further argued that plaintiffs have not challenged the order nor Ex.D72 and same has attained finality. Much reliance was also placed on Ex.D69 and it was argued that this document also falsifies entire case of the plaintiffs. It was further argued that Ex.D1 is original sanctioned plan of the defendants' property and the measurement is also shown in Ex.D1 which also falsifies the case of the plaintiffs. It was further argued that defendants purchased property No.4 under Ex.D3 and Orders under Ex.D72 was also implemented and separate numbers were assigned as CTS No.360 for the plaintiff's property and CTS No.360/1 to the defendants' property. It was further argued that all the documents and evidence placed on record clinchingly establishes that the plaintiffs are falsely claiming their right and possession over the property of the defendants and even have abused the process of the court. It was further argued that plaintiffs have produced false evidence and have sworn to false affidavits only for the purpose of knocking off the property of the defendants and hence they are liable for prosecution u/s.340 of Cr.P.C. It was further argued that plaintiffs attempted to defeat the truth based on false suit and 21 O.S.No.2017/2004 hence learned counsel for the defendants sought for dismissal of the suit as well as for initiating criminal action against the plaintiffs.
26. In support of his written argument he has also relied on the decisions reported in :
1. (2008) 4 SCC 594 - Anathula Sudhakar Vs. P.Buchireddy
2. AIR 2002 KAR 326 - Venkataswamy Vs. Narayana A & Ors.
3. ILR 1998 KAR 554 - Narasimha Shastry Vs. Mangesh Devaru
4. AIR 1963 MAD 147 - Dharmakanny Nadar Siviseshamuthu Vs. Mahalingam Nadar
5. AIR 1948 PC 207 - The Palestine Kupat AM Bank Co-Op Society Ltd., Vs. Govt. of Palestine
6. (2013) 9 SCC 199 - Moti Lal Songara Vs. Prem Prakash.
7. MANU/DE/0154/2016 - H.S.Bedi Vs. National Highway Authority of India.
8. 2012(6) SCC 430 - A.Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripoalanai Sangam & others.
9. 2010 (2) SCC 114 - Dalip Singh Vs. State of UP & Ors.22 O.S.No.2017/2004
10. AIR 2004 SCW 1842 - Shipping Corporation of India, Ltd., Vs. Machado Brothers & Ors.
27. Having regards to the materials placed on record and arguments heard, my findings on the above issues are as under:
Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : As per final order,
for the following:
REASONS
28. Issue No.1: The plaintiffs have asserted that they are in peaceful possession and enjoyment of the suit property. Per contra, defendants have come up with a specific defense that their vendor was the auction purchaser of the property old No.4 and new No.46 abutting the property of the plaintiff bearing old No.3 and new No.47 and thereby they have denied the alleged possession and enjoyment of the suit property by the plaintiffs. With these rival pleadings and contentions the parties of lead oral and documentary evidence on their behalf.
29. The plaintiffs got examined their GPA Holder as PW1 and PW1 has sworn to affidavit by way of his examination in chief which is on par with the allegations made in the plaint 23 O.S.No.2017/2004 about the right and possession of the plaintiffs over the suit property. In support of his evidence PW1 has got marked various documents as per Ex.P1 to P14. Ex.P1 & 2 are the Power of Attorneys, Ex.P3 is the Certified copy of sale certificate issued by court in favour of 2nd plaintiff, Ex.P4 is the registration certificate of society, Ex.P5 is the memorandum of association of plaintiffs, Ex.P6 is the Rules & regulations of society, Ex.P7 is the letter issued by Lord Krishna Bank, Ex.P8 is the sale deed executed by ICDS, Ex.P9 is the letter issued by BMP, Ex.10 is the tax paid receipt, Ex.P11 is the endorsement issued by DC., Ex.P12 is the City Survey record, Ex.P13 is the notice issued by Joint Director of Land Records and Ex.P14 is the Petition copy of Joint Director of Land records. In the cross examination directed to PW1 an attempt is made to establish that the GPAs at Ex.P1 & P2 are created by him and that he has no authority to depose on behalf of the plaintiffs. But nothing worth is elicited from his mouth. At para 3 of the cross examination PW1 has pleads ignorance about the production of occupancy certificate and katha certificate as stated by him at para 5 of his chief examination. He admits that Ex.P3 is a sale certificate issued in favour of 2nd plaintiff in pursuance of the public auction of the property by court in OS.NO.111 & 112 of 1971. He also 24 O.S.No.2017/2004 admits that the subject matter of Ex.P3 is old property No.3 and new No.47 of Dickenson Road, Bangalore. He further admits that the present suit is filed in respect of the aforesaid property and the relevant portion reads as under:
It is correct the subject matter of Ex.P3 is site (old) No.3, New No.47 of Dickenson Road, Bengaluru. It is correct this is the property in respect of which the present has been filed.
He further admits that in suit schedule, site number as mentioned in Ex.P3 is not shown. He further admits that CTS No.360 as mentioned in the suit schedule refers to the property shown in Ex.P3 and also admits that under Ex.P3 property new No.46 is shown on the northern site. He also admits that the northern boundary shown in the suit schedule as private property refers to the property bearing new No.46 as mentioned in Ex.P3. But however he denies that he is aware that the new property No.46 corresponds to the CTS No.360/1. It is elicited from his mouth that he has not produced any documents to show that the northern boundary of the suit property is bounded by CTS.No.361. An attempt is made to establish that the northern boundary is deliberately 25 O.S.No.2017/2004 shown as CTS NO.361 which he has denied. Further an attempt is made to establish that plaintiffs have deliberately suppressed the old and new property numbers in the suit schedule which he has denied. He admits that plaintiffs were in possession of Ex.P3 as on the date of filing of the suit. He pleads ignorance about the letter written by 2nd plaintiff to BBMP on 6.11.2003 stating that the property No.46 is situated on the northern side of the suit property. He also pleads ignorance that the said letter was signed by one Sri.Aithal.
30. He further admits that 1st defendant had filed revision petition before Joint Director of City Survey in respect of CTS No.360. He denied the rejection of the revision petition filed by defendants. According to him the revision petition was allowed and the plaintiff challenged the said orders before Hon'ble High Court of Karnataka. Later he admits that 1st defendant challenged the orders passed in revision petition before Hon'ble High Court of Karnataka in W.P.NO.12701/2005. But denies that in the said revision petition, the Joint Director upheld the possession of 1st defendant over old site No.46. He denies that as on the date of filing of the suit, CTS NO.360 was consisting of property No.3 & 4 with new No.46 & 47. He denied the admission made 26 O.S.No.2017/2004 before Hon'ble High Court of Karnataka stating that property No.3 belongs to the plaintiff and property No.4 is belongs to the defendants. A question is put to him stating that despite Orders of Hon'ble High Court of Karnataka, plaintiffs have not amended the plaint till date and he has answered that plaintiffs have not accepted the finding given by Hon'ble High Court of Karnataka and are challenging the same. He further denied that CTS No.360 is later bifurcated in presence of 1st defendant and one Sri.Aithal who has signed the plaint. He denies that after bifurcation, the property of the defendants was assigned with CTS No.360/1. But admits that plaintiffs challenged the orders of city surveyor before the Hon'ble High Court of Karnataka, wherein the Hon'ble High Court of Karnataka directed them to approach civil court. He also admits that a separate suit in OS.NO.7949/2008 is filed and the same is pending before learned CCH-9. He also admits that the relief of declaration of title is not sought in the suit and further admits that in OS.NO.7949/2008, they have sought to restrain the defendants from developing the property bearing CTS NO.360/1. PW1 has further deposed that under Ex.P3 plaintiffs purchased an area measuring 1,25,800 sq. feet. An attempt is made to establish that the said measurement is shown as approximate which he has denied.
27 O.S.No.2017/2004He admits that the 2nd plaintiff executed sale deed as per Ex.P8 in favour of 1st plaintiff to the extent of an area measuring 1,19,524 sq. feet and thereby sold entire property which he has denied. At page 12 of the cross examination he admits that plaintiffs have not paid any tax in respect of property New No.46 and old No.4. He also admits that Ex.P9 to 11 are not pertaining to property No.46. At page 13 of the cross examination he admits that as per the direction of the Hon'ble High Court of Karnataka in Writ Petition, the officials of BBMP and others visited the property on 20.3.2002. He also admits that himself and aforesaid Aithal were present at the time of inspection. He pleads ignorance about the objections filed by the plaintiff against the said inspection. A specific question is put to him as to whether he has any documents to show that the property No.360/1 old No.3, new No.47 is in his possession for which he has answered that the plaintiffs are contending that the property bearing CTS No.360 is their property and they are in possession without accepting the bifurcation. Sanctioned plan was confronted and marked as Ex.D1 and he denied that as per Ex.D1 an area measuring 1,19,524 sq. feet was sold in favour of 1st plaintiff.
28 O.S.No.2017/200431. The defendants got examined their son and GPA Holder as DW1 and DW1 has sworn to his marathon affidavit by way of his chief examination, wherein he has corroborated the contentions taken by the defendants in their written statement. In particular, it is the evidence of DW1 that the property purchased by the plaintiffs though comes under CTS.No.360 but it was bearing old No.3 new No.47 and the property purchased by the vendor of the defendants was old No.4 and new No.46. Therefore according to him, plaintiffs are falsely claiming their alleged right and possession over the suit property. It is also evidence of DW1 that there were tenants in their property who were paying rents to the vendor of the defendants and there are various correspondence which establishes that the vendor of the defendants was in possession of his property as absolute owner thereof and subsequently the building existing in their property collapsed and the tenants vacated their premises and handed over possession back to the land lord. Therefore it is the evidence of DW1 that various documents produced by him supports the defense set up by the defendants and in support of his evidence DW1 has got marked Ex.D2 to D118. Ex.D1 sanctioned plan which was marked by confronting to PW1. Ex.D1 is the sanctioned plan, Ex.D2 is the Special power of 29 O.S.No.2017/2004 attorney, Ex.D3is the certified copy of sale certificate issued in favour of Syed Younus, Ex.D4 is the certified copy of Sale deeds dated 29.01.1981, Ex.D5 is the certified copy of Sale deeds dated 30.03.1981, Ex.D6 & D7 are the 2 Encumbrance certificates, Ex.D8 is the letter issued by Karnataka Bank, Ex.D9 & D10 are the certified copies of orders passed by Special Dy. Commissioner , ULC Authority, Ex.D11 are the Two cheques issued in favour of Syed Younus by Karnataka State Handicrafts Development Corporation, Ex.D12 & D13are Two letters issued by Manager, Karnataka State Handicrafts Development Corporation, Ex.D14 is the copy of letter addressed by Syed Younus to the Managing Director, Karnataka State Handicrafts Development Corporation, Ex.D15 & D16 are the two letters written by Chief Development Manager, Karnataka State Handicrafts Development Corporation, Ex.D17 is the Envelop, Ex.D18 & D19 are the certified copy of advancement application, compromise petition filed in HRC 10086/1987, Ex.D20 is the Letter addressed by Chandra Prakash with envelop, Ex.D21 & D22 are the letters written by Chandra Prakash with receipt of Rs. 20,000/-, Ex.D23 is the letter addressed by the defendant to Asst. Revenue Officer, BBMP., Ex.D24 is the letter dated 21.11.1983 written by defendant No. 1 to the Dy.
30 O.S.No.2017/2004Commissioner, BBMP, Ex.D25 is the letter written by Asst. Revenue Officer, Bangalore City Corporation, Ex.D26 is the certified copy of order sheet in O.S. 13/1994, Ex.D27 is the certified copy of IA under Order 39 Rule 1 and 2 CPC, Ex.D28 to D30 are three letters written by defendant to the Deputy Commissioner, Bangalore City Corporation, Ex.D31 is six photographs with negative, Ex.D32is the letter written by defendant No.1 to BBMP, Ex.D33 is the receipt paid towards advertisement, Ex.D34 is the Letter addressed by Commissioner, BBMP, Ex.D35 is the certified copy of order sheet of Writ Petition No. 22012/2002, Ex.D36 is the Certified copy of orders passed in Writ Petition No. 22012/2002, Ex.D37 is the renewal license issued by BBMP, Ex.D38 & D39 are the two Letters of Serve & Volley, Ex.D40is the Letter issued by Serve & Volley for having paid rent, Ex.D41 is the certified copy of order sheet in O.S. 25640/2007, Ex.D42 is the certified copy of IA filed under Order 39 Rule 1 and 2 CPC, Ex.D43 is the Letter issued by Serve & volley in respect of payment of rent, Ex.D44 is the three Electricity Bills and receipts, Ex.D45 is the Letter given by Sunil Kriplani, Ex.D46 are 19 photographs with negatives, Ex.D47 are 5 encumbrance certificates, Ex.D48 are three Assessment extracts, Ex.D49 are 5 tax paid receipts, Ex.D50 is the 31 O.S.No.2017/2004 Endorsement issued by revenue officer, BBMP, Ex.D51 are 3 khata certificates, Ex.D52 is the Khata extract, Ex.D53 & D54 are the certified copy of judgment and decree passed in O.S. 1940/81, Ex.D55 & D56 are the certified copy of order and decree passed in RFA 312/2000 and 19/2000, Ex.D57 & D58 are the certified copies of letters issued by plaintiff to the Commissioner, BBMP, Ex.D59 is the sanctioned plan, Ex.D60 is the Enquiry register extract, Ex.D61 is the certified copy of property card, Ex.D62 is the map issued by ADLR, K.R. Circle, Ex.D63 is the City Survey 360 sketch, Ex.D64 & D65 are the certified copy of Revision petition (CTC) 33/2003-2004 and objections, Ex.D66 is the certified copy of enquiry register extract, Ex.D67 is the certified copy of field book extract, Ex.D68 is the certified copy of Mahazar, Ex.D69 is the certified copy of survey sketch, Ex.D70 is the certified copy of order passed in Revision petition of 33/2003-2004, Ex.D71 is the certified copy of modified order in Revision petition No. 33/2003-04, Ex.D72 is the certified copy of Writ Petition 12701/2005, Ex.D73 is the Letter submitted by the defendant to the enquiry officer, City survey, Ex.D74 is the Letter given by the City Survey officer, Ex.D75 is the statement of objections filed by the plaintiff, Ex.D76 is the orders passed by Enquiry Officer, City Survey, Ex.D77 is the Enquiry Register 32 O.S.No.2017/2004 extract, Ex.D78 is the Property card, Ex.D79 is the PT sheet sketch, Ex.D80 is the Field Book Sketch, Ex.D81 is the Enquiry register of plaintiff, Ex.D82 is the Property card of plaintiff, Ex.D83 is the Field Book sketch of plaintiff, Ex.D84 is the PT sketch of the plaintiff, Ex.D85 is the Combined PT sketch, Ex.D86 is the Letter given by the defendant to the BBMP, Ex.D87 is the Letter addressed by Joint Director, BBMP, Ex.D88 are 4 RTI applications filed by the defendant, Ex.D89 is the objections filed by the respondent No.10 in Writ Petition 25142-25148/1990, Ex.D90 is the reply to the objections filed by the plaintiff in W.P. 25142-25148/1990, Ex.D91 is the Inspector report along with sketch submitted by Engineer of BBMP, Ex.D92 is the reply to the report by the plaintiff, Ex.D93 is the report along with sketch submitted by Commissioner, BBMP, Ex.D94 is the certified copy of objections filed by the plaintiff to the commissioner's report, Ex.D95 is the notice issued by the BBMP to the defendant, Ex.D96 are 2 maps issued by Asst. Commissioner, BBMP in respect of property of defendant, Ex.D97 is the Map issued by Asst. Commissioner in respect of plaintiff's property, Ex.D98 is the certified copy of plaint filed in O.S. 7949/2008, Ex.D99 & D100 are 2 RTI applications filed before the Survey Department, Ex.D101 is the Endorsement issued by ADLR, 33 O.S.No.2017/2004 K.R. Circle, Ex.D102 is the certified copy of partition deed dated 12.06.1991, Ex.D103 is the hand sketch, Ex.D104 is the CD, Ex.D105 is the Enquiry register extract of City Survey No. 361, Ex.D106 is the Property card of City Survey No. 361, Ex.D107 is the Field book extract of City Survey No. 361, Ex.D108 is the Enquiry register extract of City Survey No. 359, Ex.D109 is the Property card of City Survey No. 359, Ex.D110 is the Filed book extract of City Survey No. 359, Ex.D111is the certified copy of sale agreement dated 08.09.1978 executed by D. Syed Younus, Ex.D112 is the certified copy of sale agreement dated 04.04.1980 executed by D. Syed Younus, Ex.D113 is the certified copy of sale deed dated 07.07.1981 executed by D. Syed Younus, Ex.D114 is the certified copy of agreement of sale dated 15.11.1978 executed by D. Syed Younus, Ex.D115 is the certified copy of orders passed in Writ Petitions 25142 to 25148/1990, Ex.D116 is the certified copy of interim orders passed in WA 6430/1997, Ex.D117 is the certified copy of interim orders passed in WA 6386/1997 and 6430/1997 dated 03.04.2002, Ex.D118 is the certified copy of orders passed in WA 6430/1997 and 349-350/1998 clubbed with WA 6386/1997 dated 21.09.2005.
32. In the cross examination directed to him, it is brought on record that he is aware of the court auction that 34 O.S.No.2017/2004 was confirmed on 21.8.1973 and has volunteered that the property bearing No.3 was auctioned in favour of plaintiffs. He admits that suit property bears CTS.No.360. He admits that he sought for revision of city survey records pertaining to CTS.No.360. He further admits that the sale in favour of the vendor of the defendants was confirmed on 15.10.1973 and an attempt is made to establish that the sale was confirmed in favour of 2nd plaintiff much earlier to the confirmation in favour of defendants' vendor which he has denied. He reiterates that the vendor of defendants purchased old No.4 and new No.47 through court auction. An attempt is made to establish that the total area in CTS No.360 was measuring 1,25,800 sq feet and the same was sold in court auction in favour of 2nd plaintiff which he has denied. But however he admits that the 1st plaintiff purchased an area measuring 1,19,525 sq. feet from the 2nd plaintiff. At page 53 of the cross examination, it is suggested to him that Ex.D4 was executed by defendants on 29.1.1981 in favour of his father Dr.VA.Pinto and paternal uncle J.T.Pinto and he also deposes that there was error in the father's name of vendor and the same was rectified under Ex.D5. It is further brought on record that Ex.D62 & 67 are one and the same and an attempt is made to establish that the entire area as per Exs.D62 & 67 was 35 O.S.No.2017/2004 purchased by 2nd plaintiff in court auction. But according to him, Exs.D62 & 67 are for un-rectified CTS.No.360 which consists of two properties bearing old No.3 & 4. But admit that Exs.D62 & 67 does not disclose bifurcation. He reiterates that defendants are in possession and enjoyment of the property bearing old No.4 and new No.46 and has denied the boundaries shown in the suit schedule. An attempt is made to establish that the measurement shown in the plaint schedule tallies the measurement shown in Ex.D7. But according to him, property number in Ex.D7 does not tally with the property number shown in the suit schedule. But admit that two items of properties shown in Ex.D7 belonging to the plaintiffs. He also admits the contents of Ex.D7. In his further cross examination he admits that Ex.D105 to 110, 113 & 114 are not pertaining to the suit property. He further admits that Ex.D105 to 118 does not convey any title. Rest of the cross examination directed is by way of suggestions which he has denied. This is all the oral and documentary evidence placed on record.
33. Before adverting to the other aspects it is necessary to mention some of the admitted facts. It is an admitted fact that 2nd plaintiff purchased the property in CTS.No.360 36 O.S.No.2017/2004 through court auction in Final Decree Proceedings of OS.NO.111 & 112/1971. It is an admitted fact that the sale was confirmed in favour of 2nd plaintiff on 21.8.1973 and the sale deed was also executed on 8.3.1974. It is further an undisputed fact that the 2nd plaintiff sold an area measuring 1,19,524 sq. feet in favour of 1st plaintiff and the 1st plaintiff has constructed residential apartment under the name Manipal Center. It is further an undisputed fact that one Sri.D.Syed Younus vendor of the defendants was also auction purchaser of property in CTS.NO.360 through court action in the aforesaid proceedings. It is further an admitted fact that defendants preferred Revision Petition before Joint Director of Land Records under Ex.P14 for setting aside the entries made in CTS. No.360 to the extent of property bearing No.4. It is an admitted fact that the said Revision Petition was came to be dismissed as against the said orders, defendants preferred Writ Petition before Hon'ble High Court of Karnataka under Ex.D72 and the Hon'ble High Court of Karnataka was pleased to allow the Writ Petition directing the City Survey Officer to delete the property No.4 from Col.No.2 of P.T.Sheet No.934 of CTS.No.360. It is further an admitted fact that the Orders under Ex.D72 has not been challenged by the plaintiffs and same has attained finality. It is further an undisputed fact 37 O.S.No.2017/2004 that D.Syed Younus sold the property purchased by him in court auction in favour of defendant No.1 and his brother Mr.J.T.Pinto under a registered sale deed dtd. 29.1.1981. It is further an undisputed fact that a rectification deed dtd. 13.3.1981 was also executed by the said vendor for error in the measurement of the property. It is further an undisputed fact that subsequently there was a partition between 1st defendant and his brother under a partition deed dtd.12.6.1991 and the property was allotted to the share of 1st defendant. The fact that subsequently name of defendants 1 & 2 was mutated in the revenue records is concerned same is also not disputed by the plaintiffs.
34. But now according to the plaintiffs, they are the owners in possession and enjoyment of the suit schedule property. It is the case of the plaintiffs that there was no property available for D.Syed Younus in CTS.No.360 and the entire property in CTS.No.360 is in their possession and enjoyment. Defendants have also come up with a specific defense that old property No.3, new No.47 in CTS.NO.360 was sold in court auction in favour of plaintiffs and the property bearing old No.4, new No.46 was purchased by their vendor D.Syed Younus and these two properties are distinct 38 O.S.No.2017/2004 properties. But as the plaintiffs have come up with the suit claiming their absolute possession and enjoyment of the suit schedule property, therefore initial burden lies on them to establish their case in accordance with law. And the onus will shift on the defendants only after plaintiffs successfully established their possession and enjoyment.
35. The plaintiffs in order to establish their possession and enjoyment over suit property have based their case on the basis of the oral evidence of PW1 and various documents at Ex.P1 to P14. So far as the oral evidence is concerned PW1 being GPA holder of plaintiffs though has sworn to affidavit by way of his chief examination reiterating the allegations made in the plaint about the alleged possession and enjoyment of the plaintiffs over the suit property. But interestingly in his cross examination, he has pleaded so many ignorance's. P.W.1 at page 5 of the cross examination admits that the subject matter of Ex.P3 is property bearing old No.3 and new No.47. At page 6 of the cross examination he has admitted that the CTS NO.360 as shown in the suit schedule is pertaining to the property involved in Ex.P3. At page 11 of the cross examination he has reiterated that an area measuring 1,25,800 sq. feet was purchased by the plaintiff No.2.
39 O.S.No.2017/2004Therefore, the evidence of PW1 in his chief examination and the aforesaid cross examination makes it clear that the plaintiffs are claiming their possession over the property measuring 1,25,800 sq.feet which according to them is subject matter of the suit. At this juncture, if the description of the suit property as shown in the suit schedule is perused, plaintiffs have only pleaded the property bearing CTS.No.360 with its measurement on all four directions which reads as follows:
All that piece and parcel of land bearing City Survey No.360, measuring and bounded as follows:
On the northern side: 173 + 205 feet bounded by private property City Survey No.361. On the southern side: 467 feet bounded by private property City Survey No.359. On the eastern side : 270 feet bounded by private property.
On the western side: 317 + 46 feet, bounded by Dickenson Road.
36. The bare perusal of the description of the suit schedule property as pleaded by the plaintiffs reveals that 40 O.S.No.2017/2004 except pleading CTS.No.360, they have not come forward with the property number. At this juncture, it is necessary to mention that the entire case of the plaintiffs is based on Ex.P3 which is a sale certificate issued by the court and at page 2 of this Ex.P3 the description of the property that was sold through court auction and confirmed in favour of 2nd plaintiff is shown as under:
Schedule premises old No.3(new No.47)
Dickenson Road, Civil Station, Bangalore,
bounded on the North by Premises New No.46,
Dickenson Road and the private property, South by private property, east by private property and on west by Dickenson Road. Site area about 1,25,800 sq.ft.
37. The perusal of the above description of the property under Ex.P3 would reveal that the property bearing old No.3 and new No.47 in CTS.NO.36 was sold in favour of plaintiff No.2 through court auction. But interestingly the plaintiffs though claims that the property shown in the suit schedule was purchased by them under Ex.P3, but for the reasons best known to them, have not pleaded all these details of the property as reflected in Ex.P3. There is no mention in Ex.P3 41 O.S.No.2017/2004 that the entire property in CTS.No.360 is sold in favour of 2nd plaintiff. It is only old property NO.3 and new No.47 that was sold and what prevented the plaintiffs from mentioning all these details in the suit schedule is not made clear. In this connection the learned counsel for the defendants has relied on a decision reported in ILR 1988 KAR.PAGE 554 wherein it is held as under :
It has been held that where the sale deed mentioned the boundaries specifically and clearly to identify the property, the actual extent of the land not being clear, the recitals as to boundaries should prevail.
On perusal of the plaint it is noticed that the plaintiffs have shown the existence of CTS.No.361 on the northern side of the suit schedule property. But the property that was sold in favour of 2nd plaintiff under Ex.P3 is bounded on north by the new premises No.46 and Ex.P3 does not disclose the existence of CTS.No.361 on the northern side of the suit property as pleaded by the plaintiffs. Their own document at Ex.P3 establishes the existence of new property No.46 on the northern side and the boundaries shown in the suit schedule and property on the northern side of suit schedule property is 42 O.S.No.2017/2004 contrary to this Ex.P3. Even other wise plaintiffs have not placed any material before court to establish the existence of CTS.No.361 on the northern side of suit property. As stated supra, plaintiffs are claiming their possession over suit property on the basis of Ex.P3 and rely on this document for the purpose of establishing their right. Therefore when once the plaintiffs rely on this Ex.P3, they are expected to rely in its entirety and not to suit their convenience. The principles laid down in the above authority also applicable to the case on hand and the boundaries shown in Ex.P3 prevail over the boundaries pleaded in the plaint. Therefore the very description of the suit schedule property as pleaded by the plaintiffs is totally misleading and hence it cannot be the basis for determining their possession and enjoyment over suit property. This is one aspect of the case.
38. This apart it is further pertinent to note that Ex.P3 is only pertaining to old property No.3 and new No.47 and this fact is also evident from Ex.P7 which is the letter of Lord Krishna Bank Limited as well as the original sale deed at Ex.P8, wherein in the first schedule is old property No.3 and new No.47. The plaintiffs have also produced Ex.P11 wherein similar description is shown. Therefore the plaintiffs' own 43 O.S.No.2017/2004 document itself establishes that 2nd plaintiff purchased old property No.3 and new No.47 under Ex.P3. As stated supra, PW1 in his cross examination also admitted these facts. But even after clear admission, plaintiffs want this court to believe that they are the purchasers of the property in CTS.No.360 without specifying the property number. Therefore the admitted evidence placed on record by the plaintiffs itself establish that the plaintiffs have suppressed actual property number that was sold in favour of 2nd plaintiff in the present suit. This part it is further pertinent to note that PW1 in his cross examination at para 3 has pleaded ignorance about the production of the occupancy and katha certificates relating to the property referred in para 5 of his chief examination. But admittedly no such documents are produced before court. The plaintiffs have failed to produce the katha certificate and katha extract to establish that their names were entered in the revenue records to the extent of suit property as pleaded by them. Even Plaintiffs for the reasons best known to them, have not made clear before this court as to the transfer of katha of the suit property in their names. This apart, the plaintiffs have produced Ex.P9 to 11 in support of their claim and PW1 in his cross examination categorically admits that these documents are nothing to do with the suit property. Therefore Ex.P9 to 11 44 O.S.No.2017/2004 are also inconsequential to the case of the plaintiffs. Interestingly PW1 at para 7 of the cross examination has also gone to the extent of admitting that plaintiffs have not paid any property tax in respect of property bearing old No.4 and new No.46. If really the plaintiffs are possessors of the entire suit property, they ought to have got katha transferred in their names and ought to have paid property taxes for all these years. Admittedly the sale was confirmed in favour of 2nd plaintiff under Ex.P3 in 1973 and even after lapse of more than four decades, plaintiffs have not produced any tax paid receipts before court to establish that they have been paying taxes regularly to the Government. Therefore the conduct of the plaintiffs in not producing the katha extract as well as tax paid receipts also gives room for drawing adverse inference against them and the entire material placed on record falsifies the case of the plaintiffs about their possession and enjoyment of the suit property.
39. On the other hand, defendants have got examined DW1 and this DW1 in his evidence has through maintained that the vendor of the defendants by name D.Syed Younus purchased old property No.4 and new property No.46 in the court auction and a sale certificate was also executed in his 45 O.S.No.2017/2004 favour under Ex.D3. It is also evidence of DW1 that an old building was existing in the property No.46 and soon after purchase, the tenants started paying rents to D. Syed Younus and followed by payment of rents to the defendants. DW1 has also spoken that one of the tenant Karnataka State Handicrafts Development Corporation Limited and the Government also exercised its first option to purchase the tenanted premises which was later failed due to non- exercising of the right by the Government. It is also the evidence of DW1 that the old structure existing in the property No.46 collapsed and all the tenants vacated their respective tenanted portions in favour of D.Syed Younus. It is further the evidence of DW1 that defendants filed Revision Petition before Joint Director of Land Records for deletion of their property number from P.T.Sheet of the plaintiff's property and the said revision petition was dismissed and as against the said orders defendants preferred Writ Petition before Hon'ble High Court of Karnataka, which came to be allowed and a direction was issued to bifurcate the property of the plaintiffs and defendants. In support of his oral evidence DW1 has also got marked all the relevant documents before court. But interestingly, there is no effective cross examination directed to DW1 disputing the above portion of his chief examination as 46 O.S.No.2017/2004 well as various documents got marked by him. The perusal of Ex.D3 reveals that D.Syed Younus purchased the old property No.4 and new No.46 in the court auction. Ex.D4 is the certified copy of sale deed and Ex.D5 is the rectification deed executed by D.Syed Younus in favour of 1st defendant and his brother. Ex.D6 is the encumbrance certificate for the period from 1.1.1970 to 31.12.1975 wherein the name of D.Syed Younus is shown as against property No.46. These Ex.D3 to D6 are not contraverted in the cross examination directed to DW1 and therefore these documents have remained unchallenged. Ex.D9 is the letter of Spl.Deputy Commissioner wherein the government exercised first option for purchase of tenanted premises and this letter is addressed to D.Syed Younus on 19.2.1980. Admittedly D.Syed Younus also purchased the property No.46 in 1973 and Ex.D9 confirms the case of the defendants that the tenants in respect of the old premises also accepted D.Syed Younus as their landlord. Ex.D10 is the Order of Spl.Deputy Commissioner wherein D.Syed Younus was directed to execute sale deed in respect of tenanted premises in favour of Karnataka State Handicrafts Development Corporation Ltd., and the document at Ex.D11 to D13 also establishes that the rents were paid to D.Syed Younus by the tenants. Subsequently D.Syed Younus sold the 47 O.S.No.2017/2004 property in favour of 1st defendant and his brother and intimated this fact to the Managing Director of Karnataka State Handicrafts Development Corporation Ltd., and one Mr. Kholi under Ex.D14 and through this Ex.D14 there was an attornment of tenancy in favour of purchaser. As stated supra, old building existing in the property No.46 was collapsed and DW1 has also spoken that the tenants through their letters handed over the possession in favour of 1st defendant and has also got marked Ex.D15 & 16 which reveals that the possession of the tenanted premises was handed over to 1st defendant. Interestingly there is no cross examination directed on these important aspects on behalf of the plaintiffs. The factum of existing of old building as well as tenancy under D.Syed Younus and the subsequent attornment of tenancy in favour of 1st defendant and his brother has also remained unchallenged and uncontraverted. This apart, DW1 has also spoken that some unknown persons had put up three huge hoardings on the foot path covering the property of defendants and complaint was lodged to that effect and also got marked the complaint at Ex.D23 & 24 and subsequent orders passed by revenue officer. DW1 has also produced other letters and photographs which supports the case of the defendants about the action taken by them for removal of the hoardings.
48 O.S.No.2017/200440. It is further pertinent to note that DW1 in his evidence has also spoken that a suit was filed in OS.No.1940/1981 against D.Syed Younus, 1st defendant and his brother for specific performance of contract on the basis of the agreement executed by D.Syed Younus in favour of one B.R.Lakshmipathi in respect of property No.46. According to DW1 the said suit was came to be dismissed under Ex.D53 and confirmed by Hon'ble High Court of Karnataka under Ex.D55 and these documents are also not disputed on behalf of the plaintiffs. It is further pertinent to note that plaintiffs themselves have got marked Ex.P11, which is the copy of the revision petition filed by 1st defendant before Joint Director of Land Records for correction of entries. DW1 has spoken that the said revision petition was dismissed and the defendants have also got marked the copy of the revision petition at Ex.D64 and the Orders of Joint Director of Land Records under Ex.D70. It is also the case of the defendants that subsequently they challenged the Orders of Joint Director of Land Records by preferring Writ Petition before Hon'ble High Court of Karnataka which came to be allowed under Ex.D72 with a direction to the City Surveyor to delete property No.4 from the P.T.Sheet No.934 of CTS No.360. Therefore the Hon'ble High Court of Karnataka was also pleased to accept 49 O.S.No.2017/2004 the property No.3 purchased by 2nd plaintiff and the property No.4 purchased by D.Syed Younus as different properties and as such the Hon'ble High Court of Karnataka was pleased to direct for correction of entries in the records. At this juncture if the cross examination of PW1 is perused, a specific question is put to him that even after the Orders under Ex.D72, plaintiffs have not amended their plaint and this PW1 has gone to the extent of deposing that plaintiffs have not accepted the findings of the Hon'ble High Court of Karnataka and they are challenging the same. Interestingly plaintiffs for the reasons best known to them, have not produced any material before court to show that this Order of Hon'ble High Court of Karnataka under Ex.D72 was subsequently modified or set aside. Therefore this Ex.D72 also attained finality which supports the case of the defendants and falsifies the claim of the plaintiffs. Defendants have also produced other documents before this court which are not challenged by the plaintiffs. No doubt DW1 admitted that the documents at Ex.D105 to 110 are not pertaining to the suit but except to that extent, there is no serious denial of other documents. Therefore entire material placed on record by the parties to the suit clinchingly establish that property No.4 was sold in favour of D.Syed Younus under Ex.D3 and the said purchaser also exercised 50 O.S.No.2017/2004 his right as landlord over tenants and received rents from them and even after sale, attorned tenancy in favour of 1st defendant and his brother and this fact clinchingly establish that the property purchased by the plaintiffs under Ex.P3 and the property purchased by D.Syed Younus under Ex.D3 are different properties and plaintiffs deliberately have shown the CTS.No.361 on the northern side of their property by suppressing the factum of existence of property No.4 belongs to the defendants. The entire material placed on record not only falsifies the case of the plaintiffs about their possession and enjoyment of the suit property, but also probabilises the defense taken by the defendants and hence I have no hesitation to hold that the plaintiffs have utterly failed to establish their possession and enjoyment of suit property and according I record my findings on this issue in the negative.
41. Issue No.2: Plaintiffs have asserted that the defendants are attempting to interfere with their possession and enjoyment of suit property. The plaintiffs have failed to establish their possession and enjoyment of the suit property and hence the question of interference by the defendants does not arise. Hence I record my finding on this issue in the Negative.
51 O.S.No.2017/200442. Issue No.3: The plaintiffs have sought for the relief of permanent injunction. Injunctive relief is equitable relief and one who seeks the equitable relief must approach the court with clean hands but in the instant case plaintiffs have taken inconsistent stand in the pleadings as well as in the evidence about the alleged possession and enjoyment of suit property. The admitted evidence placed on record reveals that the 2nd plaintiff was the purchaser of the old property No.3 and new No.47 under Ex.P3 which is part of CTS No.360. But surprisingly plaintiffs have maintained the suit in respect of CTS.No.360 without pleading the property number which is mentioned in Ex.P3. Therefore by put forthing their claim over property CTS.No.360, plaintiffs have made futile attempt to claim entire property in CTS.No.360. Further Ex.P3 also reveals the existence of old property No.4 and new No.47 on the northern side of the property sold in favour of 2nd plaintiff. But plaintiffs have pleaded existence of CTS.No.361 on the northern side which appears to be with an intention to lay their false claim over the property of the defendants. Therefore the entire evidence placed on record by the plaintiffs clinchingly establish that they have not only approached the court with unclean hands but also abused the process of the court. This apart, it is further pertinent to note that 52 O.S.No.2017/2004 defendants have also seriously disputed the title of the plaintiffs over the entire CTS.No.360 and even the Hon'ble High Court of Karnataka under Ex.D72 directed the city surveyor to bifurcate the property of the plaintiffs and defendants and even after the said Orders of Hon'ble High Court of Karnataka, plaintiffs have not chosen to amend their plaint and to show the actual description of the property that was purchased under Ex.P3. PW1 has gone to the extent of deposing that plaintiffs have not accepted the findings of Hon'ble High Court of Karnataka. Therefore the conduct of the plaintiffs also clearly establish that they have not approached the court with clean hands and inview of serious dispute raised by the defendants about the title of the plaintiffs over entire CTS.No.360, plaintiffs ought to have amended their plaint and sought for the relief of declaration of their title which they have not chosen to do so. Therefore the entire material placed on record clinchingly establishes that plaintiffs without any basis have prosecuted the suit against the defendants and hence they are not entitled for the relief of permanent injunction as prayed.
43. Before parting with the case, it is necessary to mention that the defendants during the stage of arguments 53 O.S.No.2017/2004 have filed an application u/s.340 Cr.P.C., with a prayer to make complaint against the plaintiffs for the offences punishable u/s.279, 193 & 199 r/w Sec.34 of IPC. In support of the application the GPA Holder of the defendants has sworn to affidavit stating that the plaintiffs knowingly and deliberately filed false suit claiming their ownership and possession over CTS.No.360 and according to Ex.D66 & D67 the property of plaintiffs and defendants are different and hence have committed the offence u/s.209 of IPC. It is further stated that PW1 knowingly has given false evidence before court on oath by swearing to the false affidavit and on the contrary admitting the purchase of property by 2nd plaintiff under Ex.P3 and has also falsely denied the existence of two properties belonging to the plaintiffs and defendants and also Order of Hon'ble High Court of Karnataka and the orders passed by Surveyor. It is now the case pleaded by the defendants the aforesaid statement made by PW1 in his evidence amounts to giving of false evidence which are also amounts to commission of offence u/s.193 & 199 of IPC.
44. Plaintiffs have resisted the application by filing their objections by way of counter affidavit. Wherein the GPA Holder of the 2nd plaintiff has denied all the allegations made against 54 O.S.No.2017/2004 the plaintiff and has contended that the entire case of the plaintiffs is based on Ex.P3 in which 2nd plaintiff purchased the property bearing CTS.No.360 and he has also referred to the evidence of DW1 on this aspect. Therefore according to him, there is no intentional and deliberate attempt on the part of the plaintiffs in commission of the offences alleged nor any false evidence is lead on their behalf.
45. During the course of argument the learned counsel for the defendants relying on various portions of evidence of PW1 including his affidavit filed in lieu of chief examination vehemently argued that plaintiffs are guilty of offences and liable to be prosecuted. In support of his argument the learned counsel relied on the decision of Hon'ble High Court of Delhi in RFA.NO.784/2010 H.S.Bedi Vs. National Highway Authority of India, reported in MANU/DE/0154/2016 and 2012(6) SCC 430 - A.Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripoalanai Sangam & others.
46. Repelling the said argument the learned counsel for the plaintiffs also argued at equal vehemence stating that the plaintiffs have based their case on the basis of Ex.P3 and claimed their possession over entire suit schedule property. It 55 O.S.No.2017/2004 was further argued that plaintiffs have not produced any fabricated documents and PW1 has also spoken on par with the case of the plaintiffs and therefore there is no intention on the part of the plaintiffs to lead false evidence before the court. In support of his argument the learned counsel for the plaintiffs has relied on the decisions reported in :
1.MANU /KA/0118/1977 - Veerappa Shivappa Horadi VS.
Krishna Triyambak Deshpande
2. MANU/SC/0687/1999 - M.S.Ahiawat Vs. State of Haryana & Another.
3. MANU/KA/0168/1972 - The State of Mysore Vs. Nagappa Sannigappa Sannakki & Others
4. AIR 1995 SC 1484 -U.P.State Sugar Corpn.Ltd. Vs. U.P.State Sugar Corpn. Karamchari Assocn. & others.
5. AIR 1973 SC 2190 - Santokh Singh Vs- Izhar Hussain & Anr.
47. I have scrupulously perused entire material placed on record. So far as the principles laid in the above authorities is concerned, there is no dispute. It is an admitted fact that 2nd plaintiff purchased old property No.3 and new No.47 in CTS.NO.360 under Ex.P3. Defendants are also able to 56 O.S.No.2017/2004 establish before court that the vendor of the 1st defendant purchased old property No.4 and new No.46 which is part of CTS.No.360 under Ex.D3. Both sides have lead oral as well as documentary evidence. Plaintiffs have examined PW1 and this PW1 has also sworn to affidavit wherein he has corroborated their assertion made in the plaint about the possession of the plaintiffs over the suit property and in his cross examination he admits that 2nd plaintiff purchased the property bearing No.3 and new No.47 as shown in Ex.P3. PW1 has also deposed that the plaintiffs have not accepted the findings recorded by Hon'ble High Court of Karnataka under Ex.D72 and has also denied the subsequent order passed by the surveyor for demarcation of both properties. On careful perusal of entire material placed on record it is noticed that plaintiffs have not produced any fabricated documents before court. They have come up with the suit for bare injunction and they have not sought for declaration of their title in the present suit. Therefore there is no basis for the defendants to contend that the plaintiffs have claimed their ownership over the suit property. This apart it is further pertinent to note that PW1 has given evidence before court through his affidavit in lieu of chief examination as well as cross examination. No doubt Defendants are able to elicit from the mouth of PW1 that 2nd 57 O.S.No.2017/2004 plaintiff purchased the property as shown in Ex.P3 and that itself is not sufficient to hold that there was a deliberate attempt on the part of PW1 to give false evidence before this court. This apart it is further pertinent to note that plaintiffs have filed suit for injunction simplicitor claiming their possession and enjoyment over CTS.No.360 and the very filing of the suit cannot be held as false simply because, plaintiffs are not able to establish their possession. It is further pertinent to note that PW1 in his evidence though has deposed that plaintiffs have not accepted the finding of the Hon'ble High Court of Karnataka under Ex.D72, but he has not denied the said orders with an intention to give false evidence. Hence on this ground also it cannot be held that PW1 has given false evidence before court. No doubt there are some inconsistent statements made by the PW1 in his evidence before the court about the alleged possession of the plaintiffs over the suit property as well as denial of possession of the defendants over their property. But considering the nature of the suit, the statement made by PW1 also cannot be held as false statement made with an intention to give false evidence before court. Therefore in the considered opinion of this court, the material placed on record by the defendants does not disclose prima-facie ingredients of the offences alleged and it is not a fit 58 O.S.No.2017/2004 case to file complaint against the plaintiffs for institution of criminal proceedings against them. Therefore the application filed u/s.340 of Cr.P.C. by the defendants is hereby dismissed.
48. For the foregoing discussion and reasons stated therein, suit of the plaintiff fails and liable to be dismissed with costs. In the result I pass the following:
ORDER Suit of the plaintiffs is hereby dismissed with costs of Rs.1,00,000/-. Out of which Rs.50,000/- is payable to the defendants and Rs.50,000/- is payable to the District Legal Services Authority, Bangalore Urban.
Draw decree accordingly.
[Dictated to the Judgment Writer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 18th January 2017].
(MUSTAFA HUSSAIN.S.A.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU 59 O.S.No.2017/2004 ANNEXURE
1. No.of witnesses examined on behalf of plaintiff/s:
PW1 : P.Vasu
2. No.of documents marked on behalf of plaintiff/s:
Ex.P1 & 2: Power of Attorneys Ex.P3 :CC of sale certificate issued by court to 2nd plaintiff.
Ex.P4 :Registration certificate of society Ex.P5 :Memorandum of association of plaintiffs Ex.P6 :Rules & regulations of society Ex.P7 : Letter issued by Lord Krishna Bank Ex.P8 : Sale deed executed by ICDS Ex.P9 :Letter issued by BMP Ex.10 :Tax paid receipt Ex.P11 :Endorsement issued by DC. Ex.P12 :City Survey record Ex.P13 : Notice issued by Joint Director of Land Records Ex.P14 : Petition copy of Joint Director of Land records
3. No. of witnesses examined on behalf of defendant/s:
DW1 : Rohan B.Pinto
4. No. of documents marked on behalf of defendant/s:
Ex.D1 :Sanctioned plan
Ex.D2 :Special power of attorney
Ex.D3 :CC of sale certificate issued to Syed Younus
Ex.D4 : Certified copy of Sale deeds dated 29.01.1981
60 O.S.No.2017/2004
Ex.D5 :Certified copy of Sale deeds dated 30.03.1981
Ex.D6 & D7: Two Encumbrance certificates
Ex.D8 :Letter issued by Karnataka Bank
Ex.D9 & D10:CC of orders passed by Special Dy.
Commissioner, ULC Authority Ex.D11 : Two cheques issued in favour of Syed Unnisa by Karnataka State Handicrafts Development Corpn Ex.D12 & D13: Two letters issued by Manager, Karnataka State Handicrafts Development Corporation Ex.D14 : Copy of letter wirtten by Syed Younus to Managing Director, Karnataka State Handicrafts Development Corporation Ex.D15 & D16:Two letters written by Chief Development Manager, Karnataka State Handicrafts Development Corporation Ex.D17 :Envelop Ex.D18 & D19:Certified copy of advancement application, compromise petition filed in HRC 10086/1987 Ex.D20 :Letter addressed by Chandra Prakash with envelop Ex.D21 & D22: Letter written by Chandra Prakash with receipt of Rs. 20,000/-.
Ex.D23 :Letter addressed by the defendant to Asst. Revenue Officer, BBMP.
Ex.D24 :Letter dated 21.11.1983 written by 1st defendant to the Dy. Commissioner, BBMP Ex.D25 : Letter written by Asst. Revenue Officer, Bangalore City Corporation Ex.D26 : Certified copy of order sheet in O.S. 13/1994 Ex.D27 : Certified copy of IA under Order 39 Rule 1 & 2 CPC Ex.D28 to D30: 3 Letters written by defendant to the Dy.
Commissioner, Bangalore City Corporation Ex.D31 : Six photographs with negative Ex.D32 : Letter written by defendant No. 1 to BBMP Ex.D33 : Receipt paid towards advertisement Ex.D34 : Letter addressed by Commissioner, BBMP Ex.D35 : CC of order sheet of Writ Petition No. 22012/2002 61 O.S.No.2017/2004 Ex.D36 : CC of orders passed in Writ Petition No. 22012/2002 Ex.D37 : Renewal license issued by BBMP Ex.D38 & D39: Two Letters of Serve & Volley Ex.D40 :Letter issued by Serve & Volley for having paid rent Ex.D41 :Certified copy of order sheet in O.S. 25640/2007 Ex.D42 :CC of IA filed under Order 39 Rule 1 & 2 CPC Ex.D43 :Letter issued by Serve & volley in respect of payment of rent Ex.D44 :3 Electricity Bills and receipts Ex.D45 :Letter given by Sunil Kriplani Ex.D46 :19 photographs with negatives Ex.D47 :5 encumbrance certificates Ex.D48 :3 Assessment extracts Ex.D49 :5 tax paid receipts Ex.D50 :Endorsement issued by revenue officer, BBMP Ex.D51 :3 khata certificates Ex.D52 :Khata extract Ex.D53 & D54: CC of judgment and decree passed in O.S.1940/81 Ex.D55 & D56: CCof order and decree passed in RFA 12 & 19/2000 Ex.D57 & D58: Certified copies of letters issued by plaintiff to the Commissioner, BBMP Ex.D59 :Sanctioned plan Ex.D60 :Enquiry register extract Ex.D61 :Certified copy of property card Ex.D62 :The map issued by ADLR, K.R. Circle Ex.D63 :City Survey 360 sketch Ex.D64 & D65: Certified copy of Revision petition (CTC) 33/2003-2004 and objections Ex.D66 :Certified copy of enquiry register extract Ex.D67 :Certified copy of field book extract Ex.D68 :Certified copy of Mahazar Ex.D69 :Certified copy of survey sketch Ex.D70 :CC of order passed in Revision petition of 33/2003-04 Ex.D71 :CC of modified order in Revision petn No.33/2003-04 Ex.D72 :Certified copy of Writ Petition 12701/2005 62 O.S.No.2017/2004 Ex.D73 :Letter submitted by the defendant to the enquiry officer, City survey Ex.D74 :Letter given by the City Survey officer Ex.D75 :Statement of objections filed by the plaintiff Ex.D76 :The orders passed by Enquiry Officer, City Survey Ex.D77 :Enquiry Register extract Ex.D78 :Property card Ex.D79 :PT sheet sketch Ex.D80 :Field Book Sketch Ex.D81 :Enquiry register of plaintiff Ex.D82 :Property card of plaintiff Ex.D83 :Field Book sketch of plaintiff Ex.D84 :PT sketch of the plaintiff Ex.D85 :Combined PT sketch Ex.D86 :Letter given by the defendant to the BBMP Ex.D87 :Letter addressed by Joint Director, BBMP Ex.D88 :4 RTI applications filed by the defendant Ex.D89 :Objections filed by the respondent No. 10 in Writ Petition 25142-25148/1990 Ex.D90 :Reply to the objections filed by the plaintiff in W.P. 25142-25148/1990 Ex.D91 :Inspector report along with sketch submitted by Engineer of BBMP Ex.D92 :Reply to the report by the plaintiff Ex.D93 :Report along with sketch submitted by Commissioner, BBMP Ex.D94 :Certified copy of objections filed by the plaintiff to the commissioner's report Ex.D95 :Notice issued by the BBMP to the defendant Ex.D96 :2 maps issued by Asst. Commissioner, BBMP in respect of property of defendant Ex.D97 :Map issued by Asst. Commissioner in respect of plaintiff's property Ex.D98 :Certified copy of plaint filed in O.S. 7949/2008 Ex.D99 & D100: 2 RTI applications filed before Survey Dept 63 O.S.No.2017/2004 Ex.D101 :Endorsement issued by ADLR, K.R. Circle Ex.D102 :Certified copy of partition deed dated 12.06.1991 Ex.D103 :Hand sketch Ex.D104 :CD Ex.D105 :Enquiry register extract of City Survey No. 361 Ex.D106 :Property card of City Survey No. 361 Ex.D107 :Field book extract of City Survey No. 361 Ex.D108 :Enquiry register extract of City Survey No. 359 Ex.D109 :Property card of City Survey No. 359 Ex.D110 :Filed book extract of City Survey No. 359 Ex.D111 :Certified copy of sale agreement dated 08.09.1978 executed by D. Syed Younus Ex.D112 :Certified copy of sale agreement dated 04.04.1980 executed by D. Syed Younus Ex.D113 :Certified copy of sale deed dated 07.07.1981 executed by D. Syed Younus Ex.D114 :Certified copy of agreement of sale dated 15.11.1978 Ex.D115 :Certified copy of orders passed in Writ Petitions 25142 to 25148/1990 Ex.D116 :Cc of interim orders passed in WA 6430/1997 Ex.D117 :Certified copy of interim orders passed in WA 6386/1997 and 6430/1997 dated 03.04.2002 Ex.D118 :Certified copy of orders passed in WA 6430/1997 and 349-350/1998 clubbed with WA 6386/1997 dated 21.09.2005 XVIII Addl. City Civil Judge Bangalore City.
64 O.S.No.2017/2004
Judgment pronounced in the
open court vide separate
judgment. The operative portion
of judgment reads thus:
ORDER
Suit of the plaintiffs is
hereby dismissed with costs of
Rs.1,00,000/-. Out of which
Rs.50,000/- is payable to the
defendants and Rs.50,000/- is
payable to the District Legal
Services Authority, Bangalore
Urban.
Draw decree accordingly.
XVIII Addl.C.C. & S.J.,
Bangalore