Bangalore District Court
Sri. R. Muniswamy @ Papanna vs Sri.K.Balaraj on 7 October, 2020
IN THE COURT OF THE XXX ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY
DATED THIS THE 7 th DAY OF OCTOBER 2020
-: PRESENT:-
SRI. MAANU K.S., B.Sc., LLB.
XXX Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.NO.8848/2006.
PLAINTIFFS : Sri. R. Muniswamy @ Papanna,
S/o Late S.Muniyappa @ Ramappa,
Aged about 52 years,
R/a No.196/47,
1st Cross, 8th Main Road,
Byrasandra, Jayanagar 1st Block East,
Bengaluru -560 011.
(By Pleader Sri.G.T.Thippeswamy,
Advocate)
/VS/
DEFENDANTS: Sri.K.Balaraj,
S/o Kaverappa,
Aged about 38 years,
R/a No.13, 8th Main Road,
Byrasandra, 2nd Cross,
Jayanagar 1st Block East,
Bengaluru -560 011.
(By Pleader Sri.M.S./T.P.M, Advocate)
DATE OF INSTITUTION 09-10-2006
NATURE OF THE SUIT (Suit on Suit for
Pronote, Suit for declaration and declaration
Possession, Suit for injunction, etc.) possession &
permanent
injunction.
2 O.S.No.8848/2006.
DATE OF THE COMMENCEMENT 08-12-2017
OF RECORDING OF THE EVIDENCE
DATE ON WHICH THE JUDGMENT 07-10-2020
WAS PRONOUNCED
TOTAL YEAR/S MONTH/S DAY/S
DURATION
13 11 29
(MAANU K.S)
XXX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
3 O.S.No.8848/2006.
JUDGEMENT
1. This is a suit for the relief of declaration to declare that the plaintiff is the absolute owner of the suit schedule property, mandatory injunction directing the defendant to demolish the illegal constructions made over the suit schedule property, to deliver the vacant possession of the suit schedule property and for permanent injunction.
2. This case was originally made over to CCH-19, thereafter, it was withdrawn from CCH-19 and made over to this Court as per Notification No.ADM- I(A)615/18 dtd.1-12-2018 for disposal according to law.
3. The brief facts of the case of the plaintiff are as follows:
(a). It is the case of the plaintiff that the property bearing Sy.No. 4/A1 (wrongly described as 4/1A) measuring to an extent of 3 acres 10 guntas situated at Byrasandra, Jayanagar 1st Block Bengaluru originally belonged to his grandmother late Smt.Eramma who had purchased the same through a registered sale deed dtd.28-09-1931 from one S.Muniswamappa and ever since the said date of purchase, she was in possession and enjoyment of the same and in the year 1948, the BDA has acquired an extent of 2 acres 18 guntas of land out of the said 3 acres 10 guntas vide its notification dtd.1-09-1948 4 O.S.No.8848/2006. and left out 19 guntas of land in favour of his grandmother late Smt.Eramma as per the endorsement issued by it and the suit schedule property falls within the said unacquired portion of 19 guntas of land in Sy.No. 4/A1. That during the lifetime of his grandmother, she along with her son S.Ramappa and grand children R.Nagaraj, Jayaram, R.Venkatesh and Smt.Femalamma have executed a release deed dtd.11-05-1989 releasing their rights over the suit schedule property in his favour and ever since the said date, he along with his grandmother and father is in possession and enjoyment of the same. That, when such is the case, on 30-08-2006, the defendant being a total stranger having no right, title, interest or possession over the schedule property unnecessarily tried to interfere with his peaceful possession and enjoyment over the schedule property by trespassing into the same, which has been resisted with the help of neighbours and since the defendant threatened him with dire consequence and that he will illegally dispossess him from suit schedule property at the time of leaving the schedule property, he lodged a complaint before the jurisdictional police, who refused to help him and as such, left with no other option he has come up with this suit seeking for the relief of permanent injunction at the initial stage.
(b). Thereafter, during the pendency of this suit, the plaintiff got the suit converted to declaratory suit with consequential reliefs by way of amendment 5 O.S.No.8848/2006. and further contended that during the pendency of the above suit in the Summer Vacation of Civil Courts on 17-05-2011, the defendant illegally entered into the suit schedule property along with his henchmen and forcibly dispossessed him from the suit schedule property and illegally constructed two shops, one RCC roofed house, one asbestos sheet roofed house, one house over the two shops and ground+2 floors house over the suit schedule property and thereby altered the nature of the suit schedule property though he had no manner of right, title or interest over the same and he could not resist the defendant as the defendant had the support of antisocial elements and later since some of the elders tried to negotiate for amicable settlement which went on till the last month of 2016 and as such, he has sought for additional relief of declaration, possession and mandatory injunction declaring that he is the absolute owner of the suit schedule property, directing the defendant to demolish the illegal construction over the same and that the cause of action for the relief of declaration, possession and mandatory injunction arose in the year 2011 and therefore, prayed to decree the suit.
4. After service of summons, the defendant made his appearance and filed his written statement and also filed the additional written statement after 6 O.S.No.8848/2006. amendment of the plaint, the brief facts of which are as follows:
(a). The defendant while denying the existence of the suit schedule property contended that there is no such property bearing Sy.No. 4/1A measuring 3 acres 10 guntas and that the said Eramma, the alleged grandmother of the plaintiff had purchased the property bearing Sy.No. 4 which was subsequently re-
phoded as 4/A1. While admitting the averments that the said land bearing Sy.No. 4/A1 was acquired by BDA, he denied that the suit schedule property falls within the said unacquired portion of land measuring 19 guntas in Sy.No. 4/A1.
(b). While denying the averments that late Eramma and others have executed an unregistered release deed dtd.11-05-1989 in favour of plaintiff pertaining to schedule property as false and incorrect, he further contended that the plaintiff has created the alleged unregistered release deed and the said unregistered release deed cannot be considered for any purpose as the same is required to be compulsorily registered and therefore, the plaintiff cannot claim any title under the said document. While denying that the plaintiff and his grandmother were in possession and enjoyment of the suit schedule property and that after the execution of the release deed, he continued to be in possession of the same, he contended that neither the plaintiff nor his 7 O.S.No.8848/2006. grandmother were in possession of the suit schedule property at any time and that he is in actual physical possession and enjoyment of the same.
(c). He further contended that the plaintiff is in the habit of filing suits one after the other by describing himself in different names and describing the schedule property with different measurements and boundaries and in this suit also he has changed the measurement of the schedule property two times by way of amendment. That the plaintiff has already filed a suit in O.S.No.7310/2003 describing himself as Papanna @ R.Muniswamy against him and his brothers stating that he is in possession and enjoyment of a vacant site bearing Corporation No.8, Division No.57 measuring 120 ft. x 100 ft. which also fell within the unacquired portion of Sy.No. 4/A1, Byrasandra, 1st Block Jayanagar, Bengaluru for the relief of permanent injunction making similar false allegations and also claimed that he has constructed a small shed over the same and has produced the very same documents which are now produced in this suit. He further contended that the plaintiff has shown the suit schedule property as a vacant land with different description even though there is no such property as described therein and that the said suit is still pending on the file of CCH-16 and now suppressing the pendency of the said suit, the plaintiff has filed the present suit which is barred under the provisions of Order II Rule 2 of C.P.C.
8 O.S.No.8848/2006.(d). He further contended that after the land bearing Sy.No.4/A1 was acquired by CITB in the year 1948 along with land bearing Sy.No. 2/6 belonged to Eramma, it appears that she has sold the land in Sy.No. 4/A1 and Sy.No. 2/6 in favour of Kodanda Ram Modaliar and Seenappa who formed sites and sold Sites No.10, 11 and 12 as per the decree passed in O.S.No.505/1945-46. He further contended that Sites No.11 and 12 measuring east to west 110 ft. and north to south 50 ft. were purchased by his father from Eramma and her son B.Muniyappa under a registered sale deed 26-02-1951 which was subsequently assigned with Corporation No.18, Division No.57 of Byrasandra, I Block, Jayanagar East. He further contended that similarly Seenappa who had purchased the site from Eramma and her son under a registered sale deed dtd.25-09-1950 in Sy.No.4/A1 sold the said property in favour of his father Kaverappa through a sale deed dtd. 07-12-1950 which was measuring east to west 105 ft. and north to south 50ft. With Kaneshumari No. 168 along with a tiled roof house and after purchasing the same, his father got the khatha in respect of both the properties transferred to his name and a new number was assigned as 13/1 in respect of both the properties and he along with his brothers are in possession and enjoyment of the said property after the demise of his father Kaverappa.
9 O.S.No.8848/2006.(e). He further contended that late Eramma and Muniyappa had filed a suit in O.S.No.2367/1984 before the 12th Addl. City Civil Judge Court for declaration, possession and for permanent injunction in respect of the vacant site measuring 120 ft. x 100 ft. situated at Sy.No. 4/A1 of Byrasandra, I Block East, Jayanagar, Bengaluru against Chinnappa, Venkatappa, Venkatesh, the junior uncle of himself and Smt.Kannamma, the grand daughter of Kodanda Ram Modaliar claiming that they are the owners of the said property and the said suit was contested by his uncle stating that the said property is the very same property purchased by his father late Kaverappa under two registered sale deeds dtd.7-12-1950 and 26-2-1951 and that the said Eramma and her son were not the owners and were never in possession of the same and after contest, the said suit came to be dismissed by judgment and decree dtd.25-03-2003 and as such, the present suit filed by the plaintiff claiming through them over the suit schedule property which is the very same property that was claimed by them in O.S.No.2367/1984 is barred by principles of res-judicata and principles of estoppel.
(f). He further contended that the plaintiff has intentionally not made BDA as party to this suit in order to avoid the truth coming out and that suit is bad for non-joinder of BDA as necessary party. He further contended that he having inherited the property left by his father, late Kaverappa along with 10 O.S.No.8848/2006. his brother are in possession and enjoyment of the suit schedule property and as a matter of fact, there is a RCC building, a tiled roof house which was in existence at the time of purchase, a shed constructed by him and his brother long back and the plaintiff by suppressing all these facts has come up with this false and frivolous suit. He further contended that the relief of declaration claimed by way of amendment is barred by limitation and there is no cause of action for the plaintiff to file this suit and therefore, with much more averments, he has sought for dismissal of the suit.
5. On the basis of the rival contentions taken up by the respective parties, the following issues have been framed by the predecessor in office:
ISSUES
1. Whether the plaintiff proves that he is in lawful possession over the suit schedule property as on the date of suit?
2. Whether the plaintiff proves the alleged illegal interference of defendant?
3. Whether defendant proves that the suit is barred by principle of res-judicata?
4. Whether the plaintiff is entitled for relief claimed?
5. What decree or order ?
Addl.Issues:
1. Whether plaintiff proves that he is absolute owner of suit schedule property?11 O.S.No.8848/2006.
2. Whether plaintiff proves that defendant has put up illegal construction in the suit schedule property as alleged?
3. Whether the defendant proves that the suit of plaintiff is barred by limitation?
4.Whether plaintiff proves that he is entitled for the relief of declaration as sought?
5. Whether plaintiff proves that he is entitled for possession of suit schedule property as sought?
6. In order to substantiate his case, the plaintiff got examined himself as P.W.1 and got marked 43 documents as per Exs.P.1 to 43(a). To rebut the case of the plaintiff, the defendant got examined himself as D.W. 1 and got marked 19 documents as per Exs.D.1 to 19. Thereafter, the matter was posted for arguments.
7. Heard the arguments of both the counsels for plaintiff and defendant. I have perused the materials placed on record.
8. My findings on the above issues are as follows:
Issue No.1 : In the negative, Issue No.2 : Deleted as does not survive for consideration.
Issue No.3 : In the negative.
Issue No.4 : In the negative.12 O.S.No.8848/2006.
Addl. Issue No.1 : In the negative.
Addl. Issue No.2 : In the negative.
Addl. Issue No.3 : In the negative.
Addl. Issue No.4 : In the negative.
Addl. Issue No.5 : In the negative.
Issue No.5 : As per the final order for the following REASONS
9. ISSUE NO.1 & ADDL.ISSUE NO.1:- It is the an admitted fact that the land bearing Sy.No. 4/A1 (wrongly mentioned as Sy.No. 4/1A) measuring to an extent of 2.37 guntas and Sy.No. 2/6 measuring to an extent of 1 acre 38 guntas situated at Byrasandra, Bengaluru South Taluk originally belonged to one S.Muniyappa, the great grandfather of defendant as per Ex.P. 13 from whom, late Smt.Eramma had purchased the same under a sale deed dtd.28-09-
1931 as per Ex.P. 5 along with other properties. It is also not in dispute that an extent of 2 acres 18 guntas in land bearing Sy.No. 4/A1 and 1 acre 30 guntas in Sy.No. 2/6 were acquired by BDA as per Ex.P. 12 & P.13 Final Notification and Award and an extent of 19 guntas in Sy.No. 4/A1 and 8 guntas in Sy.No. 2/6 were left out from acquisition as per Ex.P. 14 and P.15 as there existed some houses and buildings over the same. Ex.P.16 the list of lands of Byrasandra village of which possession was handed over to the surveyor of 13 O.S.No.8848/2006. DPW Section of then CITB Bengaluru also shows that possession of the said 2 acres 18 guntas in Sy.No. 4/A1 and 1 acre 30 guntas in Sy.No. 2/6 was taken by the then CITB.
10. It is the specific case of the plaintiff that said 19 guntas of land in Sy.No. 4/A1 which was left out of acquisition was retained by the said Eramma who happened to be his grandmother and she has also obtained NOC from BDA for recording khatha in respect of the said 19 guntas in Sy.No. 4/A1 along with 8 guntas of land in Sy.No. 2/6 as per Ex.P. 22 and P.23 and has also paid the betterment charges as per Ex.P. 21 based on the intimation issued by BDA as per Ex.P. 20 calling upon her to pay the betterment charges and ever since the date of BDA leaving the said 19 guntas in Sy.No. 4/A1 and 8 guntas in Sy.No. 2/6 from acquisition, she has been in possession and enjoyment of the same along with his father late S.Ramappa and since the BDA tried to interfere with their possession over the same, his grandmother and father had filed a suit in O.S.No.3410/1982 against BDA for the relief of permanent injunction in respect of the said 27 guntas in total which came to be decreed as per Ex.P. 17 and P.18. It is the further case of the plaintiff that the suit schedule property falls within the said unacquired portion of land measuring 19 guntas in Sy.No. 4/A1 and his grandmother and his father were in peaceful 14 O.S.No.8848/2006. possession and enjoyment of the same till their death and after their death, he is in possession and enjoyment of the same. To prove the above said fact, the plaintiff by examining himself as P.W. 1 has reiterated the said averments and got marked several documents as per Ex.P. 1 to P.43(a).
11. On the other hand, it is the specific defence of the defendant that there is no property situated at Byrasandra, Jayanagar I block, Bengaluru with the description as made by the plaintiff within the boundaries mentioned in the schedule and that the plaintiff is not in possession of the same as claimed by him. He has further contended that the BDA has taken possession of the entire land and at no time, the grandmother and father of the plaintiff were in possession of any property muchless the suit schedule property.
12. He further contended that the suit schedule property is the property of his father late Kaverappa which is being inherited by him and his brother in which only a portion is vacant and in the other area, a tiled roof house which was in existence at the time of purchasing the same by his father, a RCC roofed building consisting of 2 shops and 2 floors house and a shed constructed by him which are enclosed with barbered wire fencing and he along with his brother are in possession and enjoyment of the said property 15 O.S.No.8848/2006. purchased by his father. He further contended that earlier to the acquisition of the said lands bearing Sy.No. 4/A1 and Sy.No. 2/6, the grandmother of plaintiff had sold the said lands bearing Sy.No. 4/A1 and Sy.No. 2/6 to one Kodanda Ram Modaliar and Seenappa, who have formed sites and in the said sites, the said Kodanda Ram Modaliar had conveyed site No.10 in favour of his father and pursuant to the compromise decree passed in O.S.No.505/1945-46 filed by his grandfather against Eramma, the said Eramma and her son have executed sale deed in respect of sites No.11 and 12 in favour of his father M.Kaverappa under a registered sale deed 26-02-1951 and put his father in possession of said sites No.10, 11 and 12 measuring east to west 110 and north to south 100 ft. and the said sites No.10, 11 and 12 purchased by his father from the above said persons have now been given with Corporation No.13/1 and Old No.18 in Division No.57 and it is in respect of the very same property, the grandmother and father of plaintiff had filed the above said suit in O.S.No.2367/1984 which came to be dismissed and it is in respect of the very same property the plaintiff has also filed a suit in O.S.No.7310/2003 against him and 4 others which came to be dismissed as the plaintiff withdrew the said suit and as such, the suit of the plaintiff is hit by principles of resjudicata and also by principles of estoppel and to prove the defence set up by him, the defendant examined himself as 16 O.S.No.8848/2006. D.W. 1 and got marked 19 documents as Ex.D. 1 to D.19.
13. As already discussed, Ex.P. 1 to P.15 which relates to the previous ownership of one S.Muniyappa and Eramma over land bearing Sy.No. 4/A1 and Sy.No. 2/6 and also the acquisition of the said properties have not been disputed. The rests of the documents from Ex.P. 16 to P.24 which relates to the left out properties from acquisition are to some extent disputed contending that there were no lands that were left out from acquisition and that the plaintiff in collusion with some BDA officials have cooked up some documents even though no property was left out from acquisition. Passing of judgment and decree against BDA as per Ex.P. 17 and P.18 has also been disputed by the defendant on the ground that since he is not a party to the said suit, the same is not binding on him and that he is not aware of the passing of the said judgment and decree.
14. Ex.P.24 photograph and Ex.P.25 C.D. does not disclose as to whom the said property displayed in Ex.P. 24 belonged and who has constructed the said building. From the pleadings and the evidence, it appears that it is the building which has been constructed by the defendant in the suit schedule property. Ex.P.26 is the sketch prepared and filed by ADLR appointed as a Court Commissioner in O.S. 17 O.S.No.8848/2006. No.3428/1997 on 28-10-2011 in respect of the entire area of Byrasandra, Jayanagar, I Cross Road, where several properties situated over the land bearing Sy.No. 2/6 and Sy.No. 4/A1 have been demarcated by him. The plaintiff has got marked a specific portion of a site which has been demarcated as CTS No.224 by the Court Commissioner as Ex.P. 26(a) and contended that said portion marked as Ex.P. 26(a) is the present suit schedule property which is capable of being identified and as such, he has proved the existence and also identity of the said property. However, there are no references made by the Court Commissioner in the said case as to whether the said property bearing CTS No.224 itself is the suit schedule property and what is the measurement of the suit schedule property and to whom it belonged. As such, the said Ex.P. 26 is not helpful for the plaintiff to prove the existence and identity of the suit schedule property.
15. Though the plaintiff has relied on several documents from Ex.P. 27 to P.43, none of the said documents relied by the plaintiff do establish the existence and identity of the suit schedule property. Though the plaintiff has proved that 19 guntas of land in Sy.No. 4/A1 was left out from acquisition by BDA, he has thoroughly failed to establish that the suit schedule property with the description as described in the plaint schedule fell within the said 19 guntas of left out property and that the same is in existence, 18 O.S.No.8848/2006. capable of being identified with the specific boundaries as described in plaint schedule. At lease the plaintiff could have secured the City Survey Sketch pertaining to the suit schedule property to prove its existence and identity. Though he has relied on Ex.P. 26, sketch prepared by ADLR in some other suit, which discloses that CTS number have been assigned to different properties situated in the said locality, he has failed to produce the said City Survey Sketch which has got been identified by him with CTS No.224 as the suit schedule property. If really the suit schedule property has been assigned with CTS No.224, nothing prevented him to describe the same number in the plaint schedule and to produce the said City Survey Sketch pertaining to the suit schedule property before this Court. The description made in the plaint schedule also does not disclose as to what is the corporation number that has been assigned to the suit schedule property and whether the khatha has been assigned to the said property. He has not even produced any khatha certificate or tax paid receipts pertaining to the suit schedule property.
16. Apart from that, he has not even produced the survey sketch prepared by the CITB which left the said 19 guntas in Sy.No. 4/A1 out of acquisition. Certified copies of various proceedings produced by the plaintiff discloses that several suits have been filed by him and his grandmother and father with various descriptions.
19 O.S.No.8848/2006.In Ex.P. 30, the plaint of O.S.No.7310/2003, the plaintiff describes the schedule property of the said suit as part of Sy.No. 4/A1 measuring 120 ft. x 100 ft. with Corporation No.8, formed in unacquired portion of said Sy.No. 4/A1. Whereas in Ex.P.32, certified copy of amended plaint in O.S.No.5183/2005 filed against one Venkateshappa and others, he describes the suit schedule property with different dimensions measuring east to west 50 ft. and north to south 23 ft. with almost the same pleadings similar to the present suit which is also alleged to be formed and situated in the said unacquired portion of Sy.No. 4/A1. So also is the situation in Ex.P. 34 which is the certified copy of memorandum of appeal in RFA No.956/2003 filed by the grandmother and father of plaintiff in respect of the same property which is described in Ex.P. 30 and the said appeal was preferred against the dismissal of O.S.No.2367/1984 filed by the grandmother of the plaintiff seeking for declaration against the paternal uncle of the defendant and others.
17. Though it has been elicited during the cross- examination of both P.W. 1 and D.W. 1 that the said properties described in the said suits are different and the property described in the present suit schedule is different, the same appears to be a stray admission and absolutely no materials have been placed by the plaintiff to show the exact location of the so called left 20 O.S.No.8848/2006. out 19 guntas of land in Sy.No. 4/A1. Though he has relied on Ex.P. 21 receipt issued by BDA towards collection of betterment charges, the plaintiff has not placed any material before this Court to show that khatha has been recorded in respect of the said unacquired portion in favour of his grandmother, father or himself. No layout plan has been produced to show that out of the said 19 guntas which remained unacquired, the plaintiff and his grandmother have formed a layout and in the said layout, the suit schedule property is situated having been assigned with a specific number so as to identify the same.
18. That apart, though it has been elicited that the suit schedule property and the subject matter of O.S.No.2367/1984 filed by the grandmother and father of the plaintiff against the uncle of the defendant and others are different properties, during the course of arguments, the counsel for the plaintiff has argued that it is in respect of the very same property, the defendant is claiming right under the Corporation Khatha No.13/1 and the plaintiff is claiming the right in respect of the very same property as an agricultural land and that the same has not yet been developed. However, on perusal of Ex.P. 19 endorsement issued by the Asst. Revenue Officer, Bengaluru City Corporation discloses that no detailed layout plan identifying the bit of lands in Sy.No. 2/6 21 O.S.No.8848/2006. and Sy.No. 4/A1 which were left from acquisition has been produced by the plaintiff to identify the said left out properties and as per the said endorsement, the said area has been developed long back and the BDA had handed over the said area to the Corporation of Bengaluru with effect from 01-01-1985 and no possession certificate has been issued in respect of the said bit of lands more particularly in respect of land bearing Sy.No. 4/A1 measuring 19 guntas. As such, from the documents produced by the plaintiff himself, it is seen that the land bearing Sy.No.4/A1 itself is not capable of being identified. When the identity of bit of land measuring 19 guntas in Sy.No.4/A1 left out from acquisition itself is not established, it can be safely held that the very existence of the suit schedule property in the said 19 guntas of left out land in Sy.No.4/A1 has also not been proved by the plaintiff by placing cogent material on record. Merely by obtaining an injunction decree against the BDA in O.S.No.3410/1982 to which the defendant is not a party, it cannot be said that the plaintiff has established the existence and identity of the said 19 guntas of land and the suit schedule property and that the said judgment and decree as per Ex.P. 17 and 18 is binding on the defendant.
19. It appears from the records that much earlier to the BDA acquiring the lands bearing Sy.No. 4/A1 and Sy.No. 2/6, the grandmother of the plaintiff Eramma 22 O.S.No.8848/2006. had sold the said properties to one Kodanda Ram Modaliar through a sale deed dtd.02-06-1947 as per Ex.D. 3 and the said Kodanda Ram Modaliar by forming a lay out had sold the various sites in favour of different persons and one such site bearing No.10 measuring 60 ft. x 40 ft. was sold by him through a registered sale deed dtd.22-04-1948 in favour of the father of the defendant herein named Kaverappa as per Ex.D. 4. Similarly as per the compromise entered under Ex.P. 29 by the grandmother and father of the plaintiff herein with the grand parents of the defendant to execute sale deed in respect of 6 guntas of land in Sy.No. 4/A1, the grandmother and father of plaintiff have executed sale deed dtd.26-02-1951 in favour of father of the defendant herein in respect of the sites No.11 and 12 which have been formed in Sy.No. 4/A1 measuring east to west 110 and north to south 50 ft. in the said layout formed by the said Kodanda Ram Modaliar as could be seen from the recitals found in Ex.D. 7 and Ex.P. 29.
20. It is further revealed from the record that thereafter, the said lands bearing Sy.No. 4/A1 and Sy.No. 2/6 have been acquired and since the above said three properties bearing sites No.10, 11 and 12 were developed and there were residential house and constructed building, the said properties have been left out from acquisition as per the findings made by the Spl. LAO while passing the award as per Ex.P. 13.
23 O.S.No.8848/2006.Since it is the plaintiff who has come before this Court seeking for declaratory relief to declare him as an absolute owner of the suit schedule property, the plaintiff has to establish the existence and identity of the suit schedule property apart from proving his ownership and possession over the same without relying upon the weakness of the defendant. In this regard, it is just and necessary to quote the decision of the Hon'ble Supreme Court of India relied by the counsel for the defendant reported in AIR 2014 SC 937 in the matter between Union of India & others Vs. Vasavi Housing Co-operative Society Ltd. & Others, wherein the Hon'ble Supreme Court of India has clearly held as follows:
(A) Specific Relief Act (47 of 1963), S.34 - Suit for declaration of title -Onus to prove his title is on plaintiff - He cannot succeed on weakness of defendant's case.
The plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited.
21. The above decision relied by the counsel for the defendant clearly applies to the case on hand. On the other hand, the counsel for the plaintiff during the course of his arguments has argued that if the defendant claims possession and title over the suit schedule property as against the title of the plaintiff, 24 O.S.No.8848/2006. he is duty bound to make a counter claim and if no counter claim is made, the Court cannot give an affirmative finding in favour of the defendant and in support of the said contentions, he relied on the decision of the Hon'ble High Court of Karnataka rendered on 12-02-2020 in RSA No1175/2005 in the matter between Mallanagouda Vs. Basanagouda. The said arguments canvassed by the counsel for the plaintiff cannot be accepted and the decision relied by him is also not applicable to the case on hand for the simple reason that in the said case, the issue No.3 was framed by the Trial Court casting burden of proving the same on the defendants to prove their ownership over the CB No.5 measuring 7 acres 7 guntas and answered the said issue in affirmative and in the second appeal before the Hon'ble High Court of Karnataka, the Hon'ble High Court of Karnataka was pleased to observe that since the defendants have contended that the plaintiffs have encroached 25 guntas of land and claimed ownership over the same without claiming the relief of possession in respect of the said 25 guntas by maintaining a counter claim, there cannot be any affirmative findings in favour of the defendants. But, in the present suit, no issue casting the burden of proving the ownership by the defendant over the suit schedule property has been framed and the facts and circumstances of the present case are entirely different from the facts and circumstances of the said case and as such, the above 25 O.S.No.8848/2006. said decision relied by the counsel for the plaintiff is not applicable to the case on hand. Moreover, as per the law of precedents, the decision of the Hon'ble Supreme Court of India being the law of land needs to be followed by this Court as the decision of the Hon'ble Supreme Court of India relied by the counsel for the defendant squarely applies to the facts of the present case.
22. As such, this Court is of the opinion that the plaintiff himself has failed to prove the existence and identity of the suit schedule property and also his title and possession over the same within the boundaries as described in the plaint schedule as on the date of filing the suit. Therefore, based on the above said decision relied by the counsel for the defendant there is no necessity for this Court to look into the defence set up by the defendant and also the documents relied by him. Despite the said fact if the defendant's evidence, both oral and documentary are taken into consideration, it is seen that the defendant and his father along with his paternal uncles were in possession and enjoyment of the suit schedule property for decades together and the Corporation has assigned the No.13/1 to the said property as already discussed above. The documents produced by the defendant further goes to show that the family members of the defendant including his grandmother and paternal uncles have partitioned their joint family 26 O.S.No.8848/2006. properties including the property bearing Corporation No.13/1 measuring 110 ft. x 50 ft. as per Ex.D.10 which according to the defendant is the suit schedule property in respect of which the plaintiff has filed this suit. The plaintiff tried to contend before this Court that the said property bearing 13/1 has been bequeathed by the father of the defendant under Ex.P.40 Will dtd.31-10-1969 in favour of his brothers and as such, the question of defendant claiming the same property does not arise and that the property which is in possession of the defendant is the suit schedule property which has been trespassed into by the defendant in the year 2011.
23. The said contentions raised by the plaintiff cannot be accepted as it is not forthcoming from the evidence on record as to whether paternal uncles of defendant have acted upon the said Will and whether the said Will has been proved in accordance with the provisions of Sec.68 of Evidence Act before any Court of law and whether both the property mentioned in the said Will and the property described in the partition deed as per Ex.D.10 are one and the same. The plaintiff also tried to contend before this Court that the grandfather of the defendant had filed a suit against his grandmother and father and had also entered into a compromise petition as per Ex.P.27 to P.29, but the grandfather of the defendant failed to get the sale deed executed in respect of the said 6 guntas 27 O.S.No.8848/2006. of land in respect of which the compromise was entered by paying the balance sale consideration amount. The said contention raised by the plaintiff cannot be accepted in view of the recitals found in Ex.D.7 Sale Deed dtd.26-02-1951 which was executed by the grandmother and father of the plaintiff in respect of Sites No.11 and 12 formed in Sy.No.4/A1 of Byrasandra Village, which clearly demonstrates that as per the compromise entered in O.S.No.505/1945- 46, they have executed the sale deed in favour of the father of the defendant by receiving the balance sale consideration of Rs.50/-. It is based on the said sale deed Ex.D.10 partition deed and rectification of partition deed as per Ex.D.11 have been entered between the family members of the defendant, where under the defendant has been allotted with the property measuring east to west 27.5 ft. and north to south 45 ft. Whereas, the plaintiff himself is not sure about the measurement and boundaries of the suit schedule property as he got changed the measurement and the boundaries of the suit schedule property by way of amendment. Initially, he had describe the measurement of the suit schedule property as 60 ft. x 30 ft., later he got changed the measurement as 105 ft. x 30 ft. Thereafter, again got the measurement changed to east to west 70 ft. and north to south 30 ft. He also got the boundaries of the property amended once. All these acts and omission on the part of the plaintiff clearly 28 O.S.No.8848/2006. demonstrates that the plaintiff has thoroughly failed to prove the existence and identity of the suit schedule property as described in the plaint schedule and that he has also failed to prove his title and possession over the same as on the date of filing the suit. As such, there is no hesitation for this Court to answer issue No.1 and additional issue No.1 in the negative. Accordingly, I answer issue No.1 and additional issue No.1 in the negative.
24. ISSUE NO.2:- This Court has already answered issue No.1 and additional issue No.1 in the negative holding that the plaintiff has thoroughly failed to prove the existence and identity of the suit schedule property and also his lawful ownership and possession over the same. Hence, the question of plaintiff proving the alleged interference of the defendant over the same does not arise at all. As such, issue No.2 does not survive for consideration. Moreover, after filing of the suit, during the pendency of this suit, the plaintiff by amending the plaint has sought for declaration of ownership and possession along with the relief of mandatory injunction by alleging that during the Summer Vacation in 2011, the defendant taking advantage of the Summer Vacation of Civil Courts has entered into the possession of the suit schedule property and has put up illegal construction over the same and therefore, sought for the above said reliefs. In view of the plaintiff converting this permanent 29 O.S.No.8848/2006. injunction suit into the declaration and possession suit, issue No.2 did not survive for consideration. Accordingly, issue No.2 is hereby deleted as did not survive for consideration.
25. ADDL.ISSUE NO.2:- As discussed above while dealing with issue No.2 during the pendency of this suit, the plaintiff has got the plaint amended by alleging that during the Summer Vacation of Civil Courts in 2011, the defendant entered upon the suit schedule property illegally and took possession of the same and thereby put up illegal construction of two shops, one RCC roofed house, one Asbestos sheet house, one house over the two shops and ground + 2 floors house over the suit schedule property and thereby the defendant has altered the nature of the suit schedule property without having any manner of right, title or interest over the same and he could not resist the same because of the support of antisocial elements to the defendant and thereby raised a cloud of doubt with regard to ownership of the suit schedule property, as such, he has come up with this additional prayer of declaration, possession and mandatory injunction.
26. Per contra, the defendant in the course of his additional written statement has contended that the said allegations made by the plaintiff in additional paragraphs in 13 and 14 are contrary to the 30 O.S.No.8848/2006. averments of the written statement wherein he had stated that the suit schedule property consists of residential houses and shops and that a Mangalore tile roofed house was in existence since 1952 the date of purchase of the property by his father Kaverappa and he had also constructed the RCC building and the shed which was in existence long prior to the filing of this suit and therefore, by denying the averments that he entered into the illegal possession of the suit schedule property during May 2011 and made construction of the said building over the suit schedule property, he contended that the suit of the plaintiff is highly barred by limitation. Though the plaintiff has contended that during the month of May 2011, the defendant entered into the suit schedule property illegally and made construction over the same, absolutely no materials have been placed by him to show that during the pendency of this case that too during the month of May 2011, the defendant illegally entered into the suit schedule property and constructed the aforesaid buildings over the same except his oral evidence.
27. On the other hand, as rightly contended by the defendant in his written statement itself which was filed long back, he has specifically contended that his father had long back constructed shops, RCC building which consists of ground and first floor and that there was a Mangalore tile roofed house which was in 31 O.S.No.8848/2006. existence at the time of his father purchasing the same. He has reaffirmed the same during the course of his evidence. Absolutely, nothing has been elicited even during the course of cross-examination of D.W. 1 to the effect that the defendant made such illegal construction over the suit schedule property during the pendency of this suit. As such, this Court is of the opinion that the plaintiff has thoroughly failed to prove before this Court that during the pendency of this suit, the defendant has illegally entered into the suit schedule property and made illegal construction over the same. Accordingly, I answer additional issue No.2 in the negative.
28. ISSUE NO.3:- The defendant has specifically contended that the plaintiff is in the habit of filing civil suits one after the other by changing his name and also the description of the same suit schedule property. He has further contended that the plaintiff had filed one more suit in O.S.No.7310/2003 against him and his brothers claiming that he is in possession and enjoyment of a vacant site measuring 120 ft. x 100 ft. situated at Sy.No. 4/A1, Byrasandra I Block, Jayanagar with Corporation No.8 situated in Division No.57 for the relief of permanent injunction and he withdrew the said suit subsequently. He has further contended that his grandmother and father named Muniyappa @ Ramappa had filed a suit in O.S.No.2367/1983 in the Court of 12th Addl. City Civil 32 O.S.No.8848/2006. Judge for declaration, possession and for permanent injunction in respect of the vacant site measuring 120 ft. x 100 ft. in the same Sy.No. 4/A1 against Chinnappa and others, wherein his uncle was also arrayed as defendant and the said suit after contest by his Junior uncle came to be dismissed on merit and as such, the suit of the plaintiff is barred by principle of resjudicata and also by principle of estoppel under the provisions of Order II Rule 2 of C.P.C. as it is the very same property in respect of which the present suit is also filed.
29. On the other hand, the plaintiff has contended that the suit schedule property and the subject matter of the said suit in O.S.No.7310/2003 and O.S.No.2367/1984 are different properties and moreover as against the dismissal of the said suit in O.S.No.2367/1984, an appeal in RFA No.956/2003 is pending before the Hon'ble High Court of Karnataka and it is in respect of the very same property, the suit in O.S.No.7310/2003 was filed as the defendants of the said suit tried to interfere with his possession taking advantage of the dismissal of the said suit and he withdrew the said suit after filing the above said appeal and since both the properties are different properties, the present suit is not hit by the principle of resjudicata. No doubt, the said suit in O.S.No.2367/1984 was filed by the grandmother and father of the plaintiff against the defendant's uncle 33 O.S.No.8848/2006. and others and since the plaintiff and the defendant are claiming title through them, the decision in the said case definitely binds the plaintiff and the defendant, provided that the other requisite ingredients of principle of resjudicata are satisfied. A perusal of the description of the property described in O.S.No.2367/1984 and the description of the present suit schedule property discloses that the measurements and the boundaries does not tally with each other though there are some resemblance in the description of both properties and also in the boundaries. That apart, during the course of cross- examination of D.W. 1, the counsel for the plaintiff has elicited that the said suits in O.S.No.2367/1984 and O.S.No.7310/2003 were filed in respect of a different property and that the said suits have got nothing to do with the present suit schedule property.
30. More over, though the said suit in O.S.No.2367/1984 has been dismissed on merit after contest, since the said decision has not yet attained finality and since an appeal in RFA No.956/2003 is still pending, it cannot be held that the present suit is barred by principle of resjudicata as the main ingredients to attract the principles of resjudicata are absent. Hence, this Court is of the opinion that the defendant has failed to prove that the suit is barred by principles of resjudicata. Accordingly, I answer issue No.3 in the negative.
34 O.S.No.8848/2006.31. ADDL.ISSUE NO.3:- The defendant has contended that the suit of the plaintiff is highly barred by limitation more specifically the amended relief of declaration of ownership and possession which has been sought for after long lapse of more than 11 years from the date of suit as this Court while allowing the amendment application seeking to incorporate declaratory relief has passed a specific order that the amendment shall not relate back to the date of filing of the suit, but the same shall be deemed to be claimed from the date of filing the application. On the other hand, it is the specific case of the plaintiff that the defendant during the pendency of the suit, in Summer Vacation in May 2011 has illegally taken possession of the suit schedule property and for the first time he has raised a cloud of doubt about his title over the suit schedule property and as such, he has sought for the relief of declaration by way of amendment and even though, this Court has made a specific observation that the amendment shall not relate back to the date of filing the suit and that the relief of declaration shall be deemed to have been claimed from the date of application, then also since the relief of declaration and possession has been claimed well within 12 years from the date of defendant raising a cloud of doubt on his ownership and possession and as such, the suit for declaration and possession filed by him is well within limitation.
35 O.S.No.8848/2006.32. It is to be seen that the suit is of the year 2006 and the defendant during the course of his written statement filed on 02-01-2007 itself has stated that he is in possession of the suit schedule property and his father M.Kaverappa was in possession of the same right from the date of purchase of the same in the year 1950 and 1952. If the said averments made by the defendant is taken into consideration, the defendant has raised a cloud of doubt over the title and possession of the plaintiff in the year 2007 itself and the same was well within the knowledge of the plaintiff. But, the relief of declaration and possession was sought by him by way of amendment in the year 2013 i.e. on 22-11-2013 which is after lapse of more than 3 years. However, since the relief sought by way of amendment was for declaration and possession on the ground of alleged dispossession in the year 2011 and since the amendment application is filed well within 12 years from the date of the defendant filing the written statement, the limitation applicable to the present case is 12 years and not 3 years as per Articles 64 and 65 in Schedule I of the Limitation Act, 1963 and therefore, the suit of the plaintiff is not barred by limitation. As such, this Court has no hesitation to answer Addl. Issue No.3 in the negative.
33. ISSUE NO.4 & ADDL.ISSUES NOS.4 & 5:- Since the plaintiff has thoroughly failed to prove that he is 36 O.S.No.8848/2006. the absolute owner of the suit schedule property and was in lawful possession over the same as on the date of filing the suit and that during the pendency of the suit, the defendant has illegally entered into the suit schedule property and made illegal construction over the same and since this Court has answered the additional issues No.1 and 2 and issue No.1 in the negative, the plaintiff is not entitled for any relief from the hands of this Court, much less the relief of declaration, possession and mandatory injunction or for the relief of permanent injunction. As such, without much discussion, this Court answers the additional issues No.4, 5 and issue No.4 in the negative.
34. ISSUE NO.5:-In view of the discussion made above and my findings on the above issues and additional issues, the suit of the plaintiff is liable to be dismissed with costs. Accordingly, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed thereof, corrected, signed and then pronounced by me in the open Court on this THE 7 th DAY OF OCTOBER 2020).
(MAANU K.S) XXX ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
37 O.S.No.8848/2006.ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF/S:
P.W.1 : Sri.R.Muniswamy @ Papanna.
WITNESSES EXAMINED FOR THE DEFENDANTS/S:
D.W.1 : Sri.K.Balaraj.
DOCUMENTS MARKED FOR THE PLAINTIFF/S:
Ex.P.1 : Certified copy of sale deed dtd.02-02-1907 executed by Muniyappa and Patel Puttanna in favour of Saval Muniyappa S/o Dyane Bhovi.
Ex.P.1(a) : Typed copy of Ex.P.1. Ex.P.2 : Form No.15. Ex.P.3 : Certified copy of sale deed dtd.28-05-1908
executed by Dodda Thimmanna Bhoyi S/o Gujjanna Bhoyi in favour of Saval Muniyappa.
Ex.P.3(a) : Typed copy of Ex.P.3. Ex.P.4 : Form No.15. Ex.P.5 : Certified copy of sale deed dtd.28-09-1931
executed by Munishyamappa S/o Saval Muniyappa in favour of Eramma D/o Kenchappa.
Ex.P.5(a) : Typed copy of Ex.P.5.
Ex.P.6 : Form No.15.
Ex.P.7 : Certified copy of Revenue Khata.
Ex.P.8 : Akarband.
Ex.P.9 : Certified copy of Tippani.
Ex.P.10 : 28 RTC extracts in respect of Sy.No. 2/6.
Ex.P.11 : 28 RTC extracts in respect of Sy.No. 4/1A.
Ex.P.12 : Certified copy of the Gazette
Notification dtd.1-09-1948.
Ex.P.13 : Certified copy of the LAC Award.
Ex.P.14 : Certified copy of the endorsement
issued by Spl.LAO.
Ex.P.15 : LAC Register extract.
Ex.P.16 : Certified copy of the Court
proceedings in O.S.No.290/1969.
Ex.P.17 18 : Certified copy of the judgment & decree in O.S.NO.3410/1982.
Ex.P.19 : Certified copy of the endorsement issued by Corporation.
Ex.P.20 : Certified copy of the intimation issued by BDA.38 O.S.No.8848/2006.
Ex.P.21 : Receipt issued by BDA.
Ex.P.22 : Form No.5 issued by BDA.
Ex.P.23 : Endorsement issued by Spl.LAO.
Ex.P.24 : Photograph.
Ex.P.25 : CD.
Ex.P.26 : Certified copy of the sketch
issued by ADLR.
Ex.P.27 to 29 : Certified copies of plaint, written statement & Compromise petition in O.S.No.505/1945-46. Ex.P.30 & 31 : Certified copies of plaint & order sheet in O.S.No.7310/2003.
Ex.P.32 : Certified copy of Amended plaint in O.S.No.5183/2005.
Ex.P.33 & 34 : Certified copies of order sheet & memorandum of appeal in RFA No.956/2003.
Ex.P.35 & 36 : Certified copies of plaint & order sheet in O.S.No.858/1989.
Ex.P.37 & 38 : Certified copies of order sheet and plaint in O.S.No.2521/1989.
Ex.P.39 : Certified copy of order sheet in O.S.No.2367/1984.
Ex.P.40 : Certified copy of the Will.
Ex.P.41 : Certified copy of order sheet in RFA No.903/2016.
Ex.P.42 : Certified copy of Orders passed in Writ Appeals
No.1237/1994 & 1803 to 1807/1994.
Ex.P.43 : Certified copy of Release Deed.
Ex.P.43(a) : Certified copy of typed copy of Ex.P.43.
DOCUMENTS MARKED FOR THE DEFENDANTS/S:
Ex.D.1 & 2 : Certified copy of the judgment and decree in O.S.No.5183/2005.
Ex.D.3 : Certified copy of sale deed dtd.02-06-1947 executed by Smt.Eramma and her son B.M. Muniyappa in favour of V.K.Kodandarama.
Ex.D.3(a) : Typed copy of Ex.D.3. Ex.D.4 : Certified copy of sale deed dtd.22-04-1948
executed by Sri.V.K.Kodandarama in favour of Kaverappa.
Ex.D.4(a) : Typed copy of Ex.D.4.
Ex.D.5 : Form No.15.
Ex.D.6 : Form No.16.
Ex.D.7 : Certified copy of sale deed dtd.26-02-1951
executed by Smt.Eramma and her son B.
Muniyappa in favour of M.Kaverappa.
39 O.S.No.8848/2006.
Ex.D.7(a) : Typed copy of Ex.D.7.
Ex.D.8 : Form No.16.
Ex.D.9 : Form No.15.
Ex.D.10 : Partition Deed dtd.13-08-2003.
Ex.D.11 : Rectification Deed dtd.16-11-2017.
Ex.D.12 to 15 : Form No.15.
Ex.D.16 : Tax paid receipt.
Ex.D.17 : Khatha Certificate.
Ex.D.18 : Khatha Extract.
Ex.D.19 : Certified copy of the orders in Writ
petition No.578/1989.
(MAANU K.S)
XXX ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.