Bangalore District Court
O.S./7285/2006 on 12 February, 2021
/1/
O.S.7285/2006
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
[CCH-40], BANGALORE CITY.
Dated on this the 12th day of February, 2021.
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.7285/2006
Plaintiffs :-
1) Velakaturi Jayarama Naidu S/o. Late
V.Lakshmaiah Naidu, 63 Years.
2) V.Balaji Naidu S/o. Velakaturi Jayarama
Naidu, 32 Years.
Both are R/o.No.15/C, 6th Cross, I Main
Road, Anugraha Layout, Near Holi
Vision School, B-Narayanapura
Extension, Bengaluru - 16.
[By Sri. N.S., Advocate]
/ VERSUS /
Defendants :-
1. N.Nagaraj S/o.Late Lakshminarayana
Reddy, 30 Years.
2. Smt.N.Geethamma D/o.Late Lakshmi
Narayana Reddy, 34 Years.
/2/
O.S.7285/2006
3. Smt.N.Shantha D/o.Late Lakshmi
Narayana Reddy, 30 YearsD/o.Late
Lakshminarayan Reddy, 32 Years.
4. Smt.N.Shylaja D/o.Late Lakshmi
Narayan Reddy, 29 Years.
All are R/o.Kundalahalli Village,
K.R.Puram Hobli, Bangalore East
Taluk.
[By Sri.J.P., Advocate]
¯¯¯¯¯
Date of Institution of the
: 12.08.2006
suit
Suit for direction,
Nature of suit : permanent and
mandatory injunctions
Date of commencement
of evidence : 15.02.2008
Date on which the
judgment is pronounced : 12.02.2021
Duration taken for Years Months Days
: 14 06 00
disposal
***
JUDGMENT
This suit is filed by the plaintiffs against the defendants for the relief of permanent injunction restraining the defendants, their agents, servants or any /3/ O.S.7285/2006 body acting under or through them from interfering with their peaceful possession and enjoyment over the suit schedule properties and the relief of mandatory injunction directing the defendants to rectify the property number of the B schedule property in the registered sale deed dated 19.1.2004 by substituting the words "Sy.No.14/2A" in place of "Property No.15/2" by executing necessary rectification deed before the Sub- Registrar.
2. The defendants made counter claim for the relief of mandatory injunction directing the plaintiffs to remove the compound and sheds constructed on the portion of Sy.No.14/2A of Kundalahalli Village.
3. It is the case of plaintiffs that, plaintiff No.1 is the father of plaintiff No.2 and they together residing along with their family members. The plaintiffs have purchased the property bearing Sy.No.14/2A of /4/ O.S.7285/2006 Kundalahalli Village, K.R.Puram Hobli, Bengaluru East Taluk, measuring 4 ½ guntas on 19.1.2004 from one Kanthamma W/o. Aswathanarayana Reddy i.e., suit schedule 'A' property. On the same day the plaintiffs have purchased portion of Sy.No.14/2A measuring East - West 82 + 81 ½ /2, North - South 12.60 Feet from the the defendants for valid consideration i.e., suit schedule 'B' property. The suit schedule 'A' and 'B' properties now come under Mahadevapura City Municipal Council. As per sale deeds, the names of the plaintiffs have been mutated in the municipal records and presently khathas are standing in the names of plaintiffs. Suit schedule 'A' and 'B' properties are situated in juxt-position. The plaintiffs have paid tax to the concerned authorities. Since 19.1.2004 the plaintiffs are in peaceful possession and enjoyment of the suit schedule properties. The plaintiffs have fenced the suit schedule properties with stone pillars. The suit schedule properties are the part /5/ O.S.7285/2006 and parcel of the land measuring 1 acre 12 guntas in Sy.No.14/2, New No.14/2A of Kundalahalli Village. The said property was fallen to the share of one Laxminarayana Reddy i.e., father of defendants. The said Laxminarayana Reddy has acquired the property through a registered partition deed dated 17.4.1972. As per said partition deed, the the land measuring 1 acre 16 ½ guntas was also fallen to the share of said Laxminarayana Reddy and the said land is situated on the eastern boundary line of the land bearing Sy.No.14/2A. As per said partition deed, the said Laxminarayana Reddy had been enjoying all the properties fallen to his share as absolute owner.
4. It is further averred that, the said Laxminarayana Reddy for his legal necessity sold the portion of land bearing Sy.No.14/2A i.e., suit schedule 'A' property to one Smt.Kanthamma W/o.Ashwatha /6/ O.S.7285/2006 Narayana Reddy on 15.4.1994 for a valid consideration. The said Kanthamma sold the suit schedule 'A' property to the plaintiffs. The legal heirs of Laxminarayana Reddy have sold the suit schedule 'B' properties to the plaintiffs for their legal necessity. On purchase of both the properties the plaintiffs have become absolute owners in possession of suit schedule properties. Except the plaintiffs, no one has got any manner of right, title or interest over the suit schedule properties.
5. The sale deed dated 19.1.2004 executed by Smt.Kanthamma in respect of suit schedule 'A' property instead of using the words " Sy.No." by oversight it was typed as "property No." both in the schedule as in the body of the sale deed and after noticing the same, the plaintiffs requested the said Smt.Kanthamma for rectification of sale deed.
6. That, during the month of April 2006 one /7/ O.S.7285/2006 Vinod S/o.Venkatesh Reddy the owner of the property situated on the western boundary line of the suit schedule properties applied for survey of his property. At that time, the plaintiffs came to know that in their sale deeds the Sy.No.15/2 has been mentioned instead of Sy.No.14/2A. On coming to know of the said mistake, the plaintiffs and said Kanthamma approached the defendants and requested them to correct the same by executing the necessary rectification deed. Though in the beginning the defendants have agreed to execute the rectification deed, but have demanded Rs.10 Lakhs from the plaintiffs to execute the rectification deed on the ground that their father sold the suit schedule 'A' property for lesser value. Ultimately after the negotiations the defendants have agreed to execute the necessary documents by receiving Rs.5 Lakhs to the A schedule property and Rs.2,50,000/- to the B schedule property. The plaintiffs have arranged Rs.5 Lakh and /8/ O.S.7285/2006 requested the defendants to execute the rectification deed in respect of suit schedule 'A' property. Accordingly, after receiving the said Rs.5 Lakhs, the defendants have executed GPA in respect of suit schedule 'A' property in favour of Ashwathanarayana Reddy i.e., husband of Kanthamma. On the basis of GPA dated 12.5.2006, the said Ashwathanarayana Reddy has executed registered rectification deed on 15.6.2006 in favour of Kanthamma. On the same day, said Kanthamma has executed rectification deed in favour of plaintiffs in respect of suit schedule 'A' property.
7. It is further pleaded that in the last week of 2006, the plaintiffs after arranging an amount of Rs.2,50,000/- approached the defendants in order to get the rectification deed in respect of B schedule property. At that time, the defendants denied to execute the rectification deed and demanded to sell the suit /9/ O.S.7285/2006 schedule properties to them by quoting some paltry consideration or to enter into JDA with them to construct apartments. Since the demand of the defendants are totally unreasonable and the plaintiffs who do not want to enter into any joint development agreement in respect of suit schedule properties, they refused to do so. When the plaintiffs have refused to yield to their illegal demands, the defendants gone to the extent of threatening the plaintiffs. The persuasion made by the plaintiffs to get the rectification deed in respect of the sale deed dated 19.1.2004 i.e., in respect of suit schedule 'B' property from the defendants went in vain.
8. It is further pleaded that, the defendants in order to blackmail the plaintiffs to yield their illegal demands got issued frivolous notice dated 8.7.2006 contending that they have not executed GPA dated 15.6.2006 in favour of Ashwathanarayana Reddy / 10 / O.S.7285/2006 authorising him to execute any sale deed and the said GPA is concocted and fraudulent one. The plaintiffs got issued the reply to the said notice. Apart from issuing the said notice, the defendants tried to put up compound around the suit schedule properties by removing the stone pillars erected by the plaintiffs. The plaintiffs resisted the illegal acts of the defendants.
9. The plaintiffs further contended in their rejoinder that the defendants have no right, title, interest or possession over the suit schedule properties even then they have claimed counter claim for removing the construction made on the suit schedule properties. The defendants have deliberately not disclosed the extent of land in Sy.No.14/2A was fallen to the share of their father Laxminarayana Reddy in the Partition Deed dated 17.4.1972. The father of defendants and the defendants have alienated the entire Sy.No.14/2A and / 11 / O.S.7285/2006 15/2 of Kundalahalli Village, they have not retained any portion, even then they are making false claim. That, even after the death of their father, the defendants have created one Partition Deed dated 29.4.2005 as if they have retained certain lands in Sy.No.14/2A of Kundalahalli Village. The defendants with an oblique motive to engulf the property have made a counter claim. Hence, prayed for decreeing the suit and dismissal of the counter claim.
10. The suit summons were issued to the defendants, defendants appeared through their counsel and filed their written statement along with the counter claim for the relief of mandatory injunction for removal of constructions and sheds put up on Sy.No.14/2 of Kundalahalli Village. The defendants have denied the claim of the plaintiffs and further contended that the property purchased by the plaintiffs are situated in / 12 / O.S.7285/2006 Sy.No.15/2 and not in Sy.No. 14/2A of Kundalahalli Village. The 2 sale deeds produced by the plaintiffs in support of their case also describes in the schedule the respective properties purchased by the plaintiffs are situated in Sy.No.15/2 of Kundalahalli Village. The plaintiffs themselves produced the khathas in respect of the properties purchased by them. The said khathas were made in favour of the plaintiffs not in respect of suit schedule properties, but in respect of portion of Sy.No.15/2. The plaintiffs are falsely claiming that they have constructed the compound by using stone pillars. The stone pillars and fencing is done by the defendants of their property situated in Sy.No.14/2 of Kundalahalli Village. The father of defendants was allotted lands bearing Sy.No.14/2 and 15/2 under the Partition Deed dated 17.4.1972. The property sold to Kanthamma is situated in Sy.No.15/2 and not in Sy.No.14/2A. Merely because the father of defendants was allotted lands in / 13 / O.S.7285/2006 the portion of Sy.No.14/2 it cannot be the base for plaintiffs to claim that what was purchased by the plaintiffs is in that of Sy.No.14/2. The plaintiffs are no way concerned with Sy.No.15/2 of Kundalahalli Village. The defendants further contended that they are the owners of Sy.No.14/2A. The defendants have denied the GPA allegedly executed by them in favour of Ashwathanarayana Reddy in respect of suit schedule 'A' property. The plaintiffs have created the said GPA and got executed the rectification deed. There is no cause of action to file the present suit. The defendants further contended that the plaintiffs have filed the present suit only with an intention to engulf the properties and further contended that after filing the suit the plaintiffs got succeeded in getting the interim order. On the basis of said interim order, have constructed the compound over the suit schedule properties by illegal means. Hence, prayed for dismissal of suit and for allowing the / 14 / O.S.7285/2006 counter claim.
11. On the basis of the pleadings and documents of the parties, the following issues and additional issue have been framed :
(1) ವವದಯರರ ದವವವ ಎ ಮತರತ ಬ ಷಷಡಡಡಲಲ ಆಸತಗಳಲಲ ದವವವ ದನವನಕದನದರ ಕವನಡನರ ಬದದ ಸವಸಧಧನವನರಭವದಲಲ ಇದದರಷನದರ ವವದಯರರ ರರಜರವವತರ ಪರಡಸರತವತರಯಧ ?
(2) ದವವವ ಪಷಪಡಡಡಲಲಆಸತಯ ಸನಬನಧ ಪಪತವವದಯರರ ವವದಯರ ಪರವವಗ ದದ19.1.2004 ರನದರ ಬರಷದರ ನಷಡಧನದವಯಸಕಷಡಟಟ ಕಪಯ ಪತಪದಲಲ ಸವಷರ ನನ.14ದ2(ಎ) ಬದಲವಗ ಸವಷರ ನನ.15ದ2 ಎನದರ ತಪವಪಗ ನಮಡದವಗದಷಯನದರ ವವದಯರರ ರರಜರವವತರ ಪಡಸರತವತರಷಯಧ ?
(3) ದವವವ ಪಷಪಡಡಡಲಲ ಆಸತಗಳಲಲ ವವದಯರ ಶವನತಯರತ ಸವಸಧಧನವನರಭವಕಷಕ ಪಪತವವದಯರರ ಅಡಡ ಪಡಸದವದರಷನದರ ವವದಯರರ ರರಜರವವತರ ಪಡಸರತವತರಷಯಷಧ ?
(4) ದವವವ ಶಡಡಡಲಲಆಸತಗಳಲಲ ವವದಯರರ ಆವರಣ ಗಷಡಧಡಷ ಮತರತ ಶಡಲ ನರರಸದರದ ಅನಧಕಕತವಷನದರ ಪಪವವದಯರರ ರರಜರವವತರ ಪಡಸರತವತರಷಯಧ ?
(5) ಯವವ ತಧಪರರ , ಯವವ ಡಕಪ ?
Additional Issue framed on 25.1.2021 :
/ 15 / O.S.7285/2006 (1) Whether the defendants are entitled for the possession of suit schedule property as prayed in the counter claim ?
12. In order to prove their case, plaintiff No.1 examined himself as P.W.1 and got marked documents as Exs.P.1 and P.68. The counsel for defendants cross- examined P.W.1 in part. Subsequently the counsel for plaintiffs filed I.A.Nos.24 and 25 stating that plaintiff No.1 is suffering from alzimar disease, hence, plaintiff No.2 may be permitted to adduce fresh evidence. The said applications came to be allowed on 6.4.2017. The plaintiff No.2 was permitted to adduce fresh evidence as P.W.2. Accordingly, plaintiff No.2 has been examined as P.W.2 and got marked the documents - Exs.P.69 to 86. While cross-examining the witness, the counsel for defendants confronted 8 photographs, witness admitted the said photographs, same were marked as Exs.D.1 to D.8. In order to establish their defence, the defendant / 16 / O.S.7285/2006 No.1 has been examined as D.W.1.
13. Heard the arguments and perused the written arguments filed by the counsel for plaintiffs.
14. My findings on the above issues are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : In the affirmative.
Issue No.3 : In the affirmative.
Issue No.4 : In the negative.
Addl.Issue : In the negative.
Issue No.5 : As per final order, for the
following :-
REASONS
15. Issue No.1 :- The plaintiffs have filed the
present suit against the defendants for the relief of permanent injunction restraining the defendants, their agents, servants or any body acting under or through them from interfering with their peaceful possession and enjoyment over the suit schedule properties and the relief of mandatory injunction directing the defendants / 17 / O.S.7285/2006 to rectify the property number of the B schedule property in the registered sale deed dated 19.1.2004 by substituting the words "Sy.No.14/2A" in place of "Property No.15/2" by executing necessary rectification deed before the Sub-Registrar.
16. The admitted facts in this case are that, one Laxminarayana Reddy was the owner of adjoining lands bearing Sy.No.14/2 and 15/2 of Kundalahalli Village. The said Laxminarayana Reddy has formed the residential layout in both the lands and has sold the said sites to various persons including the plaintiffs and one Kanthamma. The defendants have admitted the fact that the said Laxminarayana Reddy has sold 4 ½ guntas of land to one Smt.Kanthamma as per Ex.P.6 on 15.4.1994. It is an admitted fact that, the said Laxminarayana Reddy and the defendants have sold khatha No.123 measuring East - West and northern side / 18 / O.S.7285/2006 82 Feet and southern side 81 ½ Feet, North - South 12/60 Feet, in all measuring 1,030 Sq.Ft. to plaintiffs on 19.1.2004 as per Ex.P.10. It is an admitted fact that, in turn the said Smt.Kanthamma has sold the said 4½ guntas of land to plaintiffs on 19.1.2004 as per Ex.P.8. The plaintiffs claim that the suit schedule properties are situated in Sy.No.14/2A, but in the sale deed it is wrongly mentioned as Property No.15/2. The defendants denied the claim of the plaintiffs and contended that the properties alienated to the plaintiffs and Kanthamma are situated in Sy.No.15/2 only.
17. In order to substantiate their case, the plaintiff No.1 has been examined as P.W.1 and got marked the documents Exs.P.1 to P.68. The counsel for defendants cross-examined P.W.1 in part. In the meanwhile, the counsel for plaintiffs filed I.A.No.24 and 25 under Section 151 C.P.C. seeking permission to lead fresh evidence of / 19 / O.S.7285/2006 plaintiff No.2 on the ground that the plaintiff No.1 (P.W.1) is suffering from Alzheimer disease. The said applications came to be allowed on 6.4.2017. The plaintiff No.2 has been permitted to adduce fresh evidence as P.W.2 and further, passed an order that the evidence of P.W.1 recorded so far shall remain in tact and the defendants shall be at liberty to rely on any admission elicited in the cross-examination of P.W.1 . At the same time no adverse inference shall be drawn against the plaintiffs for non-tendering of P.W.1 for cross- examination. After passing the order on said I.A.Nos.24 and 25, the plaintiff No.2 has been examined as P.W.2 and got marked the documents as Exs.P.69 to P.86. The examination-in-chief of P.Ws.1 and 2 are nothing but replica of plaint averments. P.Ws.1 and 2 in their examination-in-chief deposed that, one Laxminarayana Reddy i.e., the father of defendants was the owner of 30 guntas of land in Sy.No.14, New No.14/2A and land / 20 / O.S.7285/2006 measuring 1 acre 12 guntas in Sy.No.15, New No.15/2 situated at Kundalahalli Village. The said lands have been acquired by the said Laxminarayana Reddy under the registered partition deed dated 30.12.1965 as per Ex.P.1. Subsequently, the said Laxminarayana Reddy and his father got divided the joint family properties by means of registered partition deed dated 15.4.1972 i.e., Ex.P.2. In the said partition deed the Laxminarayana Reddy has acquired the above said two lands. Exs.P.3 to P.5 are the Survey Sketch, Hissa Tippani pertains to said Sy.No.14/2A and 15/2. Both said two lands are adjacent to each other. The said Laxminarayana Reddy has alienated 4 ½ guntas of land to one Smt.Kanthamma on 15.4.1994 as per Ex.P.6. Ex.P.7 is the certified copy of the encumbrance certificate. After purchasing the said 4 ½ guntas of land i.e., suit schedule 'A' property said Smt.Kanthamma alienated the same to the plaintiffs on 19.1.2004 as per Ex.P.8. Ex.P.9 is the certified copy of / 21 / O.S.7285/2006 the encumbrance certificate. After alienating the said 4 ½ guntas of land said Laxminarayana Reddy died. The said Laxminarayana Reddy and his sons i.e., defendants No.1 to 4 have alienated the property bearing property No.123 measuring East - West on the southern side 81 ½ Feet and northern side 82 Feet, North - South 12.60 Feet i.e., suit schedule 'B' property to them on 19.1.2004 as per Ex.P.10. The property mentioned in Ex.P.10 - Sale Deed is situated on the northern side of the property mentioned in Exs.P.6 and 9. P.W.1 further deposed that in the year 1994 i.e., while executing the registered sale deed as per Ex.P.6 in favour of Smt.Kanthamma there was a prohibition from the Government to sell the revenue sites. Therefore, in the sale deeds survey number has been shown as property number.
18. P.Ws.1 and 2 further deposed that the adjacent site owner namely Vinod got surveyed his site / 22 / O.S.7285/2006 in the year 2006. At that time they came to know that the suit schedule sites are situated in Sy.No.14/2, New No.14/2A and not in Sy.No.15/2. Immediately they approached the defendants and requested for executing the rectification deed for which the defendants have demanded Rs.10 Lakhs from the plaintiffs, on the ground that their father Laxminarayana Reddy has executed the sale deed for lesser value even though the value of the properties are more. After negotiations, the defendants have agreed to execute the rectification Deed to the sale deed i.e., Ex.P.6 by receiving Rs.5 Lakh and to the sale deed Ex.P.10 by receiving Rs.2,50,000/-. After receiving Rs. 5 Lakh, the defendants have executed GPA in favour of Ashwathanarayana Reddy i.e., husband of Smt.Kanthamma as per Ex.P.20 on 12.5.2006. On the basis of said GPA, the said Ashwatha Narayana Reddy has executed registered rectification deed in respect of suit schedule 'A' property as per Ex.P.21 in the name of / 23 / O.S.7285/2006 Smt.Kanthamma. On the same day the said Smt.Kanthamma has executed rectification deed in favour of plaintiffs as per Ex.P.22 in respect of suit schedule 'A' property. Subsequently they approached the defendants and requested for execution of rectification deed in respect of suit schedule 'B' property, but the defendants have refused to execute the rectification deed and made a demand for entering into joint development agreement in respect of suit schedule properties. The defendants in order to engulf the properties are trying to interfere with the plaintiffs' peaceful possession and enjoyment over the suit schedule properties and making false claim over the suit schedule properties. Therefore, a complaint has been lodged against the defendants as per Ex.P.37. Exs.P.39 to P.44 are the photographs pertains to the suit schedule properties and Ex.P.45 is the negative pertains to Exs.P.39 to P.44.
/ 24 / O.S.7285/2006
19. P.W.2 further deposed that after the death of Laxminarayan the defendants who are children of said Laxminarayan started blackmailing the purchasers of the sites and started demanding money from them on the ground that their father sold the sites for lesser value and now the value of the sites increased. Exs.P.46 to 49 are the sale deeds pertaining to the adjoining site owners. If any of the purchasers refused to pay the amount as demanded by them, they were started interfering with their possession and enjoyment and also by filing frivolous suits. Ex.P.69 to 73 are the certified copies of the plaint, written statement, Judgment and Decree and Order Sheet in O.S. No.453/2005, Exs.P.74 to 76 are the certified copies of the Decree, Memo and Issues framed in O.S.No. 2170/2007. Though the defendants denied the possession of the plaintiffs over the suit schedule / 25 / O.S.7285/2006 properties and the counsel for defendants cross- examined P.W.1 in part and P.W.2 in length, but, there is no denial as regards to the plaintiffs' possession over the suit schedule properties. The counsel for defendants much cross-examined P.W.1 on the residential address of the plaintiffs. The counsel for defendants made a suggestion to P.W.2 that in Ex.P.6 Sy.No.15/2 has been mentioned and property mentioned in Exs.P.6 and P.8 are one and the same. Witness admitted the said suggestions. Further made a suggestion to the witness that tax has been paid in respect of Sy.No.15/2 and Exs.D.1 to D.8 - Photographs pertains to Sy.No.14/A. Witness admitted the said suggestion also.
20. In order to establish their defence, defendant No.1 has been examined as D.W.1. D.W.1 denied the claim of the plaintiffs and further contended that they have alienated the sites carved in Sy.No.15/2 to the / 26 / O.S.7285/2006 plaintiffs and Kanthamma and not the sites carved in Sy.No.14/2. Though D.W.1 denied the claim of the plaintiffs over the suit schedule properties, but in his cross-examination at page No.24 admitted that his father has formed the residential layout in entire Sy.No.14/2A and 15/2. After forming the sites, his father has alienated the said sites to different persons. D.W.1 further admitted that, "¸ÀzÀj JgÀqÀÄ d«ÄãÀÄUÀ¼À°è ¤ªÀiÁðt ªÀiÁqÀ¯ÁzÀAvÀºÀ ¸ÉÊlÄUÀ¼À°è zÁªÁ ±ÉqÀÆå¯ï£À°è £ÀªÀÄÆ¢¸À¯ÁzÀ «¹ÛÃtð ªÀÄvÀÄÛ ZÀPÀÄ̧A¢ªÀżÀî MAzÉà ¸ÉÊlÄ EvÀÄÛ ªÀÄvÀÄÛ EzÉà vÀgÀ ¨ÉÃgÀÉ AiÀiÁªÀÅzÉà ¸ÉÊlÄ EgÀ°®è." D.W.1 further admitted in his cross-examination at page No.25 that, the plaintiffs are in possession of suit schedule properties. They have constructed the compound over the suit schedule properties. D.W.1 unequivocally admitted the plaintiff's possession over the suit schedule properties.
21. As per Section 58 of Indian Evidence Act / 27 / O.S.7285/2006 admitted facts need not be proved. That, in a decision reported in (2012) 8 SCC 516 [Ahmed Saheb (dead) by L.Rs. Vs. Sayed Ismail, wherein the Hon'ble Apex Court held that, "Ss. 17, 18 and 58 - Admission made in their pleadings or orally - Is the best evidence - Needs no further corroboration." The above said decision is aptly applicable to the case in hand.
22. Though the defendants have denied the execution of GPA and rectification Deed as per Exs.P.20 and P.21, but D.W.1 in his cross-examination at page No.25 clearly admitted the signatures pertains to himself and remaining defendants. That, as per Section 91 of the Evidence Act the documentary evidence prevails over the oral evidence. That, on perusal of Exs.P.20, it reveals that the defendants have executed GPA to one Ashwathanarayana Reddy in respect of suit schedule 'A' property. On the basis of said GPA, the said Ashwatha / 28 / O.S.7285/2006 Narayana Reddy has executed the rectification Deed in favour of Smt.Kanthamma as per Ex.P.21. In turn, the said Smt.Kanthamma has executed rectification Deed in favour of plaintiffs as per Ex.P.22. All these documents clearly goes to show that the plaintiffs are in possession of the suit schedule properties. It is not the case of the defendants that though the plaintiffs have purchased the suit schedule 'A' property through registered sale deed and the recital there in shows the delivery of possession, they have not delivered the possession of suit schedule 'A' property to Smt.Kanthamma and themselves retained it and later the plaintiffs have entered into possession forcibly and illegally. Except the oral testimony of D.W.1 there is no material on record to show that the defendants are in possession of the property. That, as regards to suit schedule 'B' property D.W.1 himself admitted in his cross-examination at page No.28 that they have alienated one property to plaintiffs and / 29 / O.S.7285/2006 defendants have no rights over the said property. The admission made D.W.1 clearly goes to show that the plaintiffs are in possession of suit schedule properties.
23. Though the defendants disputed the title and possession of the plaintiffs over the suit schedule properties, but nothing worth has been elicited from the mouth of P.Ws 1 and 2 to show that the plaintiffs are not in possession of suit schedule properties.
24. That, in a suit for permanent injunction the plaintiffs are required to prove that they are in peaceful possession over the suit schedule properties. In this case P.W.1 and 2 have clearly deposed that they are in possession of the suit schedule properties and D.W.1 also in his cross-examination clearly admitted that the plaintiffs are in possession of the suit schedule properties. That, in a decision reported (2018) 12 SCC 647 [Sunkamma (Dead) by L.Rs Vs. S.Pushparaj (dead) / 30 / O.S.7285/2006 by L.Rs], in which the Hon'ble Apex Court held that :
"The plaintiff's suit was only for permanent injunction in which the plaintiff is only required to prove that he is in lawful possession of the property. The touch-stone upon which such suit has to be decided is "lawful possession"
and not "ownership". The said decision is aptly applicable to the case in hand.
25. By considering the oral and documentary evidence it clearly goes to show that the plaintiffs are in possession of the suit schedule properties. Accordingly, I answer Issue No.1 in the affirmative.
26. Issues No.2 and 4 : - These issues are interlinked with each other. Hence, in order to avoid repetition of facts and evidence, they are taken up together for common discussion.
27. In the plaint, the plaintiffs have pleaded that / 31 / O.S.7285/2006 they are in possession and enjoyment of the property, pursuant to the sale deed, however, they came to know, about the wrong mentioning of the survey number of the land in sale deed only in the month of April 2006 and demanded the defendants to execute a rectification deeds. The defendants have executed rectification deed in respect of suit schedule 'A' property. However, the defendants failed to execute the rectification deed in respect of suit schedule 'B' property and have attempted to trespass into the property.
28. The defendants have admitted the execution of the sale deeds, but denied the ownership of plaintiffs over suit schedule properties. Had the sale deed been obtained under threat and coercion or undue influence against the will of the defendants, they could have filed a suit for the cancellation of the sale deeds on the said ground. But no such suit was filed by the defendants / 32 / O.S.7285/2006 against the plaintiffs for cancellation of the sale deeds. The plaintiffs are in possession and enjoyment of the property pursuant to the sale deed dated 19-01-2004. The defendants are estopped from raising a defence that they had not executed the sale deed in respect of suit schedule properties.
29. The defendants have contended that they have not executed the sale deed in respect of suit schedule properties. The plaintiffs have specifically stated that they came to know that the survey number was wrongly stated in the sale deed and they approached the defendants to execute a rectification deed in respect of suit schedule 'B' property. As they were not inclined to execute the rectification deed, the plaintiffs filed the suit seeking mandatory injunction directing the defendants to execute a rectification deed in order to correct survey No.14/2A in the place of / 33 / O.S.7285/2006 property No.15/2 in the schedule of property of the sale deed dated 19-01-2004. In such circumstances, the defendants cannot raise the plea against the relief sought for, after having executing the sale deed for consideration. There is no bar for seeking rectification of sale deed on the base of the error crept in the sale deed with the survey number, in the absence of a plea of defendants that some other property having the same number was sold by them to the plaintiffs. Similarly there is no dispute with regard to the extent of the land or description of the properties sold by the defendants.
30. The plaintiffs have produced Ex.P.10 - registered sale deed dated 19.1.2004 in respect of suit schedule 'B' property executed by father of defendants and defendants herein. The execution of said sale deed has been admitted by D.W.1 in his cross-examination at page No.26. The defendants who have sold the said / 34 / O.S.7285/2006 property, they cannot dispute the measurement and boundaries mentioned in Ex.P.10 - sale deed. On perusal of Ex.P.10 - sale deed executed by the defendants and their father, the boundaries mentioned in the said sale deed clearly tally with the plaint schedule. Hence, the defendants cannot deny the claim of the plaintiffs over the suit schedule properties. D.W. 1 in his cross-examination clearly admitted that his father Laxminarayana Reddy has not formed similar sites one in Sy.No.14/2A and another one in Sy.No.15/2A and he formed only one site as mentioned in plaint schedule. As per D.W.1 himself if his father has formed only one site as mentioned in plaint schedules in both the survey number and no other similar sites were formed in Sy.No.14/2A and 15/2. Obviously same were sold to the plaintiffs. Hence, questions of retaining another similar site for them in Sy.No.14/2A does not arise at all.
31. Though the defendants contended that they / 35 / O.S.7285/2006 are the owners of suit schedule properties and have not alienated the suit schedule properties, but D.W.1 in his cross-examination at page No.25 clearly admitted that they have partitioned their family properties as per Ex.P.36 and further admitted that there is no recital in Ex.P.36 - partition deed regarding the suit schedule properties. That, on perusal of Ex.P.36 - Partition Deed which is the registered deed entered by the defendants wherein they have divided their family properties in which there is no recital regarding the suit schedule properties. If at all the suit schedule properties have not been let out, definitely it will be mentioned in the partition deed Ex.P.36. Defendants own document speaks that suit schedule properties are no way concerned with the defendants.
32. Evidence of P.Ws.1 and 2, Exs.P.6, 8, 10, 20, 21, 22 and P.36 and evidence of D.W.1 clearly goes to / 36 / O.S.7285/2006 show that suit schedule properties are situated in Sy.No.14/2A of Kundalahalli Village and the plaintiffs are the owners of suit schedule properties.
33. As discussed supra, as per Section 26 of the Specific Relief Act, 1963 "Where through fraud or mutual mistake of the parties, an instrument in writing does not express the real intention, then the parties may apply for rectification of the deed". It is well settled law that oral evidence may be led in order to prove a mistake without claiming rectification.
34. Thus plaintiffs have to show that the properties were referred to in the sale deed by a wrong property number. Where a plaint alleges a mutual mistake of fact extrinsic evidence of such mistake is admissible. The burden of proof lies heavily on the person seeking rectification. In a suit for rectification of deed, it is not necessary to have evidence of a binding / 37 / O.S.7285/2006 contract antecedent to the instrument which is sought to be rectified and it is enough if the plaintiff proves beyond reasonable doubt the concurrent intention of the parties at the moment of executing the instrument and the instrument fails to give effect to that concurrent intention. In Joseph John Peter Sandy V/s. Veronica Thomas Rajkumar & Anr., reported in AIR 2013 SC 2028, wherein Hon'ble Apex Court held that, "Section 26 is attracted in limited cases - It is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties, the real intention of the parties is not expressed in instrument - Such rectification is permissible only by parties to instrument and none else".
35. The principles underlying the rectification of instruments are governed by Section 26 of the Specific Relief Act. Generally a party to a written instrument is / 38 / O.S.7285/2006 not allowed to contradict the instrument, but where it is contended that the instrument does not reflect the real intention because of fraud or mutual mistake, party may get the instrument rectified under Section 26 of the Specific Relief Act.
36. The defendants, who sold the properties in favour of the plaintiffs after handing over the possession to the plaintiffs as per the averments of the sale deed Ex.P.1 is estopped from raising a contradictory plea. In the absence of a specific pleadings and evidence in support of the pleadings, the defendants are not entitled to claim possession after the sale merely on the ground of stating a wrong plot in the sale deed executed by them in favour of the plaintiffs.
37. Considering the evidence available on record, and also the argument advanced by both the learned counsels, I am of the view, that execution of properties / 39 / O.S.7285/2006 documents is a complex process. Often, an error occurs in the process of execution of documents. It is always advisable to get these mistakes rectified at the earliest. The mistakes may be of various types. For example, the area of the property, its dimensions, location or the survey number may be wrong. These may be typographical errors or because of improper comparison with the property documents like the transfer deed.
38. The plaintiffs themselves have examined as P.Ws 1 and 2 and have produced several documents in support of their pleadings. Ex.P.8 and 10 are the Sale Deeds by which the plaintiffs had purchased suit schedule properties. The boundaries of Exs.P-8 and P.10 are similar to the boundaries of the plaint schedules. In the sale deeds the property No.15/2 has been mentioned in place of 14/2A. The plaintiffs have made demand for getting the said mistake corrected, but the / 40 / O.S.7285/2006 defendants have denied the claim of the plaintiffs. It is well settled that for transfer of land and identification of the land. Survey number normally has no importance for identity of the land. In the present case in hand, the plaintiffs by producing Ex.P.10 - sale deed, they have proved that they have purchased the suit schedule 'B' property from the defendants. The evidence of P.Ws 1, 2, D.W.1 and documents produced by both the parties, it clearly goes to show that suit schedule properties have been carved in Sy.No.14/2A and the defendants have alienated the said properties. The documents produced by the plaintiffs clearly show that on the date of execution of the sale deed, defendants had the intention to sell and transfer the land bearing Sy.No. 14/2A for which they were the owners. Though the Sale Deed contains the property No. 15/2, yet it should have been for correct survey number 14/2A. After purchase the plaintiffs have constructed compound and shed in their / 41 / O.S.7285/2006 property. The defendants have utterly failed to prove that the said shed and compound have been constructed illegally. In my considered opinion, this is nothing but a curable mistake which the defendants should have done by executing a Deed of Rectification. Section 32 of Specific Relief Act empowers the executing party to rectify a deed and mistakes thereupon. From the documents produced by the plaintiffs and from the un- rebutted evidence, I am of the opinion that defendants were the owners of land bearing to Sy.No.14/2A and they put the property No.15/2 in Ex.P.10 - Sale Deed is nothing but a mistake on the part of the defendants and they are liable to correct the same by way of rectification deed. In view of above, plaintiffs are entitled for getting the rectification Sale Deed by getting the survey number corrected from property No.15/2 to Sy.No.14/2A. The defendants have utterly failed to establish their title over the suit schedule properties.
/ 42 / O.S.7285/2006 Accordingly, I answer Issue No.2 in the affirmative and Issue No.4 in the negative.
39. Issue No.3 : - The plaintiffs claim that they are in possession of the suit schedule properties and the defendants are obstructing their possession. P.Ws.1 and 2 have also deposed that the defendants are obstructing their peaceful possession and enjoyment over the suit schedule properties. Though the defendants have denied the claim of the plaintiffs over the suit schedule properties, but D.W.1 in his cross-examination at page No.32 and 33 deposed that, " ದದ 24.9.2006 ರನದರ ವವದ ದವವವ ಸಸತತನ ಹತತರದನದ ತನತ ಬಷಧಲಯ ದರರಸತ ಕವಯರವನರನ ಕಷಕಗಷಡನಡವಗ ನವನರ ಸಡಯರಪಪಕವಶಲ ಎನಬರವರನರನ ಕರಷದರಕಷಡನಡರ ದವವವ ಸಸತತನ ಹತತರ ಹಷಡಧಗದಷದನರ ಎನರನವರದರ ನಜ. ಸದರ ಕವಲಕಷಕ ಸಡಯರಪಪಕವಶಲ ಸ.ನನ. 14-2 ನರನ ನವರನವನದ ಖರಧದಸರರವರದವಗ ಮತರತ ಸದರ ಸಸತತನಲಲ ಯವವರದಷಧ ರಧತಯರ ಕವಯರ ಕಷಕಗಷಡಳಳಬವರದಷನದರ ವವದಯರಗಷ ತಳಸದದರರ ಎನರನವರದರ ನಜ." The evidence of D.W.1 clearly goes to show that they have / 43 / O.S.7285/2006 obstructed the peaceful possession and enjoyment of the plaintiffs over the suit schedule properties.
40. In the decision reported in 2014 (1) KCCR 391 (Smt.Narasamma and others Vs. D.S.Narasi Reddy and another.) in which the Hon'ble High Court of Karnataka held that, "Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction." The above said decision is aptly applicable to the case in hand.
41. The plaintiffs have proved that they are in peaceful possession and enjoyment of the suit schedule properties as on the date of filing the suit. The defendants have categorically denied the possession and enjoyment of the plaintiffs over the suit schedule properties. Hence, I answer Issue No.3 in the affirmative.
/ 44 / O.S.7285/2006
42. Additional Issue framed on 25.1.2021 : -
Since the defendants failed to prove that the plaintiffs have illegally constructed compound wall and shed in the suit schedule property and further failed to prove that they have got rights over the suit schedule property, hence, the defendants are not entitled for counter claim as prayed for. Accordingly I answer additional issue in the negative.
43. Issue No.5 :- For the foregoing reasons I proceed to pass the following:
ORDER Suit filed by the plaintiffs is hereby decreed with costs.
Counter claim of the defendants is hereby dismissed.
Defendants are hereby directed to rectify the Property Number in respect of suit schedule property in the registered Sale Deed dated 19.1.2004 by substituting the / 45 / O.S.7285/2006 words "Sy.No.14/2A" in place of "15/2"
within 3 months from the date of this order.
Defendants, their agents, servants or any body acting under them or through them are hereby permanently restrained from interfering with the plaintiffs' peaceful possession and enjoyment over the suit schedule 'A' and 'B' properties.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 12th day of February, 2021.) (KHADARSAB) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Velakaturi Jayaram Naidu
P.W.2 : Velakaturi Balaji
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2. List of documents exhibited for plaintiffs:
Ex.P.1 : C/c of partition deed. Ex.P.1(a) : Typed copy of Ex.P.1 Ex.P.2 : Original deed of partition Ex.P.2(a) : Typed copy of Ex.P.2 Ex.P.3 to 5 : C/c of Survey records, sketch and hissa tippany.
Ex.P.6 : Original Sale Deed dated 15.4.94 by Laxminarayana Reddy in favour of Smt.Kanthamma.
Ex.P.7 : Encumbrance Certificate
Ex.P.8 : Original Sale Deed dated 19.1.2004
executed by Smt. Kanthamma in
favour of plaintiff.
Ex.P.9 : Form No.15 pertaining Ex.P.8
Ex.P.10 : Original Sale Deed dated 19.1.2004
executed by defendants in favour of plaintiff in respect of 'B' suit property.
Ex.P.11 : Form No.16
Ex.P.12 to 19: Tax Paid Receipts
Ex.P.20 : Original GPA the 16.5.2006
Ex.P.21 : Original deed of rectification and
modification.
Ex.P.22 : Original registered rectification deed.
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Ex.P.23 : Form No.16
Ex.P.24 : Assessment Extract of suit property. Ex.P.25 to 31: Photographs. Ex.P.32 : Negatives.
Ex.P.33 : Copy of legal notice issued by defendants.
Ex.P.34 : O/copy of Reply notice issued by plaintiffs to defendants Ex.P.35 : Postal acknowledgement Ex.P.36 : C/c of partition deed dated 26.10.2006 Ex.P.37 : Rought sketch on the basis of Ex.P.36 Ex.P.37 : C/c of police complaint Ex.P.38 : C/c of sale deed between Nagaraj and Suryaprakash.
Ex.P.39 to 44: Photographs. Ex.P.45 : Negatives.
Ex.P.46 : C/c of sale deed between K.A.Dass and Aruna Chakravarthy.
Ex.P.47 : C/c of sale deed between smt. Aruna Chakravarthy and Gnanamurthy. Ex.P.48 : C/c of sale deed dated 6.3.2003 by Gnanamurthy in favour of Channaiah. Ex.P.49 : C/c of sale deed between Channaiah and Vinodha.
Ex.P.50 : C/c of Sale Deed dated 16.10.91 sold by Lakshminarayana Reddy to Raju.
/ 48 / O.S.7285/2006 Ex.P.51 : C/c of Sale Deed dated 16.10.91 sold by Lakshminarayana Reddy to Dhayalan.
Ex.P.52 : C/c of Sale Deed dated 16.10.91 sold by Lakshminarayana Reddy to Smt.Bhagyamma.
Ex.P.53 : C/c of Sale Deed dated 16.10.91 sold by Lakshminarayana Reddy to Smt.Nagarathnamma.
Ex.P.54 : C/c of Sale Deed dated 16.10.91 sold by Lakshminarayana Reddy to Smt.Indrani.
Ex.P.55 : C/c of Sale Deed dated 16.10.91 sold by Lakshminarayana Reddy to Smt.Radhamma @ Jyashree.
Ex.P.56 : C/c of Sale Deed dated 21.10.91 sold by Lakshminarayana Reddy to Munireddy Ex.P.57 : C/c of Sale Deed dated 25.10.91 sold by Lakshminarayana Reddy to Namitha Sarkar.
Ex.P.58 : C/c of Sale Deed dated 27.12.91 sold by Lakshminarayana Reddy to Govardhana Baliga.
Ex.P.59 : C/c of Sale Deed dated 28.11.94 sold by Lakshminarayana Reddy to Krishnappa.
Ex.P.60 : C/c of Sale Deed dated 13.7.94 sold by Lakshminarayana Reddy to Ananda and Raja.
/ 49 / O.S.7285/2006 Ex.P.61 : C/c of Sale Deed dated 1.10.94 sold by Lakshminarayana Reddy to Smt.Chinnathayamma.
Ex.P.62 : C/c of Sale Deed dated 1.10.94 sold by Lakshminarayana Reddy to M.Narayanappa Ex.P.63 to 66: 4 Tax Paid Receipts Ex.P.67 : Rough sketch prepared on the basis of partition deed dated 29.4.2005 Ex.P.67(a) : Signature of P.W.1 Ex.P.68 : Rough sketch showing situation of A and B schedule properties Ex.P.68(a) : Signature of P.W.1 Exs.P.69 to 73: C/c of Order, written statement, Judgment, decree and Order Sheet in O.S.No.453/2005.
Ex.P.74 to 76: C/c of Decree, Memo and written statement, in O.S.No.2170/2007 Ex.P.77 : Gazette Notification dated 16.1.2002 Ex.P.78 : Notification of City Corporation Ex.P.79 : Endorsement issued by BBMP Ex.P.80 : Notification of Government Karnataka dated 29.1.1993 Ex.P.81 : Notification of Government Karnataka dated 22.1.1995 Ex.P.82 : Sketch in respect of Kundarahalli. Ex.P.83 : Endorsement issued by police.
/ 50 / O.S.7285/2006 Ex.P.84 : C/c of sale deed dated 15.2.2013 Ex.P.85 : C/c of Sale Deed dated 15.2.2013 Ex.P.86 : 11 computerised tax paid receipts Ex.P.20(a) to (d ) : Signature of D.W.1 Ex.P.20(e) to (h) : Signatures of defendant No.2
3. List of witnesses examined for the defendant :
D.W.1 : N.Nagraj
4. List of documents exhibited by the
defendants :
Ex.D.1 to 8 : Photographs.
(KHADARSAB),
XXXIX Additional City Civil &
Sessions Judge, Bangalore City.
***
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25/01/2021
P : NS
R : JP
For orders :
Both the counsels present. On perusal of entire material available on record it reveals that the plaintiffs have filed the present suit for permanent and mandatory injunctions against the defendants. The defendants have made counter claim for delivery of possession. Though the defendants have made counter claim, but there is no issue regarding the counter claim. Hence, it is just and proper to frame additional issue on counter claim. Accordingly, following additional issue has been framed :
"Whether the defendants are entitled for the possession of suit schedule properties as prayed in the counter claim ?"
XXXIX A.C.C. & S. Judge, Bangalore City.
/ 53 / O.S.7285/2006 Judgment pronounced in the Open Court [vide separate Judgment]:
ORDER Suit filed by the plaintiffs is hereby decreed with costs.
Counter claim of the defendants is hereby dismissed.
Defendants are hereby directed to rectify the Property Number in respect of suit schedule property in the registered Sale Deed dated 19.1.2004 by substituting the words "Sy.No.14/2A" in place of "15/2" within 3 months from the date of this order.
Defendants, their agents, servants or any body acting under them or through them are hereby permanently restrained from interfering with the plaintiffs' peaceful possession and enjoyment over the suit schedule 'A' and 'B' properties.
/ 54 / O.S.7285/2006 Draw decree accordingly.
(KHADARSAB) XXXIX A.C.C.& S.Judge, Bangalore City.