Bangalore District Court
Smt. K. Shashikala vs Ravikumar on 15 March, 2023
KABC0A0045392012
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri. P. G Chaluva Murthy,
M. A. L.L.M.
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 15th day March, 2023.
O.S.No.26963/2012
Plaintiff:- Smt. K. Shashikala
W/o. Ramdas,
Aged about 52 years,
R/at No. 70,
Guddadahalli,
R.T. Nagar post,
Bangalore-560032.
[By Sri. Y. R Sadasiv Reddy &
Associates -Adv]
OS No.26963/2012
2
V/s
Defendants:- 1. Ravikumar,
S/o. R. Doraiswamy,
Aged about 42 years,
R/at No. E-1201,
Mantri Elegance, N.S. Palya,
Bannerghatta Road,
Bangalore-560076.
2. M. Devaraj.
S/o G.C. Munikrishnappa,
Aged about 32 years,
R/at Chikkamunivenkatappa Layout
1st Main Road, Guddadahalli,
R.T Nagar,
Bangalore-560032.
[By Sri. Nagendra C. S -Adv. for D1,
Sri. T. R Ramesh -Adv. for D2]
Date of Institution of the suit 05.10.2012
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Injunction Suit
for injunction, etc.)
Date of the commencement of
10.11.2021
recording of the Evidence.
Date on which the Judgment was 15.03.2023
pronounced.
Year/s Month/s Day/s
Total duration 10 05 10
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
OS No.26963/2012
3
JUDGMENT
This suit is by the plaintiff for the relief of perpetual injunction against the defendants restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff and for other consequential reliefs.
2. Expose of facts:-
The plaintiff is the absolute owner in possession and enjoyment of the property bearing No.35, Assessment No.20/3A, situated at Guddadahalli Village, Kasaba Hobli, Bangalore North Taluk, now comes under BBMP limits situated at Chikka Munivenkatappa Layout, Hebbal, Old Ward No.96, New BBMP Ward No.21, Bengaluru, measuring east to west 30 feet and north to south 42 feet with 3 sqare AC sheet roofed, red oxide floored house, having purchased the same under the registered sale deed dtd.07.06.2012 executed by one Savithri. From the date of purchase, the plaintiff is paying taxes to the concerned authorities inrespect of the suit schedule property. That being the position, the OS No.26963/2012 4 defendants who have no manner of right, title or interest over the suit schedule property came near the suit schedule property on 24.09.2012 and tried to put up compound wall around the suit schedule property and thereby tried to dispossess the plaintiff. Therefore the plaintiff approached this court for the relief of permanent injunction.
3. Pursuant to summons, the defendants entered appearance through their counsel and filed their detailed written statement. The defendant No.1 while denying right, title, ownership and possession of the plaintiff over the suit schedule property, it is stated that the plaintiff has filed the above suit at the instance of one Smt. Varalakshmi, who is defendant No.1 in OS No.26857/2010 filed by the defendants for the relief of permanent injunction inrespect of property involved in the said suit. According to defendants, the GPA referred to by the plaintiff in her pleadings has no legal sanctity and the vendor of the plaintiff had no absolute right to execute the sale deed infavour of the plaintiff. Therefore the OS No.26963/2012 5 defendant No.1 sought for dismissal of the suit with costs.
4. Similarly the defendant No.2 also while denying the right, title, interest and possession of the plaintiff over the suit schedule property contended that, the father of defendant No.2 never executed any GPA infavour of vendor of the plaintiff and the vendor of the plaintiff had no authority to execute the sale deed infavour of the plaintiff. The defendant No.1 while narrating in detail couple of suits instituted by defendant No.1 and Smt. Varalakshmi, contended that, at the instigation of Smt. Varalakshmi, the plaintiff has filed the above suit against the defendants. The defendant No.2 specifically pleaded that there is no such site No.35 existing in the above land, at any point of time. The vendor of the plaintiff played fraud on the defendant No.2's father in collusion with the Munikrishnappa and Varalakshmi and created the documents. Therefore the defendant No.2 also sought for dismissal of the suit.
OS No.26963/2012 6
5. Based on the pleadings of the parties, my learned Predecessor-in-office has framed the following issues:
1. Whether the Plaintiff proves that she is in lawful possession and enjoyment over the suit schedule property as on the date of suit?
2. Whether the Plaintiff proves that the defendants are causing interference to the plaintiffs possession and enjoyment over the suit property without having any right or interest over the suit schedule property?
3. Whether the plaintiff proves that he is entitled for the relief claimed in the suit?
4. What order or decree?
6. The plaintiff got herself examined as PW1 and got marked 15 documents as Ex.P.1 to 15. Plaintiff has examined three witnesses as PW2 to PW4 and closed her side.
The defendants, inspite of sufficient opportunity not chosen to lead evidence from their side. But Ex.D1 and 2 were marked in the cross-examination of PW4.
OS No.26963/2012 7
7. Heard the counsel for both the parties. Perused the evidence and documents on record.
8. On appreciation of the evidence, oral and documentary, my answer to 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: As per final order for
-the following:
REASONS
9. Issue Nos.1 to 3:-
Since the above issues are inter related and finding on one issue is having bearing on the other, inorder to avoid repetition of facts, the above issues have been taken up together for consideration.
At the outset it is made clear that the above suit is for the relief of bare injunction simplicitor, based on the possession. The learned counsel for the plaintiff vehemently argued that the documents placed on record by the plaintiff clearly indicate her acquisition of the property under the registered sale deed and her possession over the same. The defendants have not chosen to lead evidence from their side and as OS No.26963/2012 8 such the adverse inference requires to be drawn against the defendants. The plaintiff has been able to establish her possession over the suit schedule property. Nowhere in the cross-examination of PW1, the possession of the plaintiff is disputed by the defendants. The plaintiff has been able to prove the interference by the defendants, which is evident from their defence itself. Therefore the learned counsel for the plaintiff sought for decree as prayed for.
10. The learned counsel for the defendant No.2 contended that, the plaintiff has not produced the alleged GPA executed by the father of the defendant No.2- Munikrishnappa infavour of one Savithri. The plaintiff also not examined Savithri before this court. No documents are produced which were in the name of Savithri- the vendor of the plaintiff. No layout plan is produced by the plaintiff. Therefore the alleged GPA said to have been executed by Munikrishnappa was invalid, since the GPA died with the executor Munikrishnappa, since as on the date of sale deed, Munikrishnappa was no more. According to learned counsel, identity of the suit schedule property is not OS No.26963/2012 9 established and possession is also not proved by the plaintiff. Therefore the counsel for defendant No.2 sought for dismissal of the suit.
11. Bearing in mind the rival contentions, let me appreciate the evidence on record. The plaintiff in her affidavit filed in lieu of oral evidence reiterated plaint averments regarding her acquisition of the suit schedule property under the registered sale deed dtd.07.06.2012 and the GPA executed by Munikrishnappa infavour of one Savithri before the District and Sessions Judge, Karnataka Appellate Tribunal, Bangalore and said Savithri alienating the property infavour of plaintiff etc and relied on 15 documents. Ex.P1 to 4 are the tax paid receipts inrespect of Site No.35 of Chikka Munivenkatappa Layout by the plaintiff for the year 2013-14 to 2016- 17, Ex.P5 is the Form B property register extract inrespect of Site No.35 which is standing in the name of plaintiff and same is issued by Assistant Revenue Officer, JC Nagar, Sub-division, Ex.P6 is the original agreement of sale dtd.14.10.1987 executed by C Munikrishnappa infavour of one Smt. Savithri, OS No.26963/2012 10 coupled with the affidavit at Ex.P7 sworn to before the District and Sessions Judge, Karnataka Appellate Tribunal, Bangalore on the same date. The reason for executing the affidavit is that there was Fragmentation Act in force and as such he was unable to execute the sale deed at that point of time. Therefore C Munikrishnappa appears to have executed agreement of sale with an affidavit.
Ex.P8 is irrevocable POA dtd.14.10.1987 executed infavour of Savithri inrespect of Site No.35. The above documents have come into existence in the year 1987. There is reference to formation of sites in the property bearing No.20/3A, Ex.P9 is the sale deed of the plaintiff, under which the plaintiff herein purchased the suit schedule site from Savithri. Ex.P10 to 14 are the tax paid receipts by the plaintiff inrespect of Site No.35 of Chikka Munivenktappa Layout, Ex.P15 is the encumbrance certificate.
12. The aforesaid documents clearly indicate the flow of title inrespect of the suit schedule property from Munikrishnappa to the plaintiff herein. As aforesaid the defendants not chosen to lead evidence OS No.26963/2012 11 from their side to disprove the documents placed on record by the plaintiff. The PW1 was cross examined at length by the learned counsel for the defendants. From the line of cross-examination it could be seen that the PW1 has withstood the rigor of cross- examination and maintained the evidence given in examination in chief regarding execution of GPA by Munikrishnappa infavour of Savithri and her purchasing the property for a valuable consideration etc. Of-course in the further cross-examination the witness stated that she has not taken electricity supply to the shed situated in the suit schedule property. According to witness no door number is given by the local authorities to the shed situated in the suit schedule property. The PW1 categorically stated that she got transferred her name about 10 years back inrespect of suit schedule property. The documents would support the contention of the PW1. The BBMP records clearly indicate that the suit schedule property is standing in the name of plaintiff. Of-course the plaintiff has not produced any other documents to show the name of her vendor in any of the BBMP records. But the fact stated by the PW1 is OS No.26963/2012 12 that there are vacant sites adjacent to the suit schedule property and according to witness a temple is situated towards hind portion of the suit schedule property. This portion of evidence remains intact. Nowhere it is suggested to the PW1 that, no such sites are formed in the property bearing Sy No.20/3. There is a suggestion to PW1 that nobody is residing in the site bearing No.34, which is shown to be in existence towards the eastern side of the suit schedule property. At Page No.14, there is suggestion to witness that, Site No.1 is having corresponding katha No.534/A, measuring east to west 182 feet and north to south 46 feet is allotted to one Anasuyamma and she sold the same to one Prashanth Kumar etc., By suggesting so, the defendant impliedly admitted formation of sites in the said Sy No.20/3. Time and again it is suggested that Site No.35, Assessment No.20/3A is not in existence. Inorder to establish that the property of the defendants is still an agricultural land and no sites were formed and the defendants are in possession of the larger extent of the property, no material worth its name is produced by the defendants.
OS No.26963/2012 13
13. The evidence of PW1 is further strengthened by the evidence of PW2 to PW4, who are the neighbours of the suit schedule property, who deposed regarding ownership of the plaintiff over the Site No.35 etc. A brief cross-examination was directed against PW2, who is claiming to be the owner of Site No.36. The witness stated that the suit schedule property is vacant site and he acquired the Site No.36 from his mother and also deposed regarding his mother filing civil suit in OS No.26857/2012 against the defendant No.2. There is a suggestion to this witness that, the said suit is dismissed for non-prosecution and it is also a suggestion that the mother of the witness had initiated criminal case against the defendant No.2 in Crl. Case No.12089/2013 etc., From these suggestions, it could be gathered that the defendants are fighting litigation inrespect of several sites in the locality. The PW2 categorically stated that his father had purchased the Site No.36 and transferred it to his mother.
OS No.26963/2012 14
14. Similarly in the cross-examination of PW3, who is claiming to be the owner of Site No.39, it is suggested that one Prema Bai had filed suit against the witness in OS No.16583/2007 and the witness filing suit against the defendant No.2 and his uncle Mariyappa in OS No.17300/2004 inrespect of Site No.39. Admittedly the suit filed by the witness was dismissed on 06.09.2018 and he preferred appeal in RFA No.2031/2018 and 2032/2018 before the Hon'ble High Court of Karnataka. It is significant to note that nowhere it is suggested to PW2 and 3 that no such site No.36 or 39 are existing in the Sy No.20/3.
15. Coming to the cross-examination of PW4, who is non other than husband of plaintiff, repeatedly it is suggested that as on the date of the sale deed, Munikrishnappa was no more. It is repeatedly argued by the learned counsel for the defendant No.2 that, Munikrishnappa was no more at the time of sale deed of the plaintiff and as such the GPA executed by the Munikrishnappa died with the death of Munikrishnappa and therefore Savithri had OS No.26963/2012 15 no right to execute the sale deed. As stated above, this suit is not for the relief of declaration of title over the suit schedule property. This suit is for bare injunction based on the possession. Whether plaintiff is in legal possession or trespasser is immaterial in the present case. The court has to see whether the plaintiff is in possession of the suit schedule property as on the date of the suit. Even otherwise the GPA said to have been executed by Munikrishnapa is irrevocable. The GPA is coupled with the interest and affidavit is sworn to before the District and Sessions Judge, Karnataka Appellate Tribunal, Bangalore. Therefore prima facie the evidence of PW1 to 4 coupled with the documents at Ex.P1 to 15 clearly establish that as on the date of the suit, it is the plaintiff who is in possession of the suit schedule property.
16. As aforesaid inorder to establish that there is no such sites formed in the property bearing Sy No.20/3, no material is produced by the defendants. Had the defendants entered the witness box an opportunity would have been available to the plaintiff OS No.26963/2012 16 to cross examine the defendants witnesses. Therefore as rightly contended by the learned counsel for the plaintiff adverse inference requires to be drawn against the defendants.
17. Though the PW1 to 4 were cross examined at length by the learned counsel for the defendants, there is no searching cross-examination of PW1 to 4 on the documents placed on record at Ex.P1 to 15. All those documents came into existence at an undisputed point of time and all the documents are public documents. The plaintiff has been paying taxes regularly inrespect of Site No.35 of Chikka Munivenkatappa Layout, Hebbal. Therefore in the absence of cross-examination of PW1 to 4 on the documents produced by the plaintiff, the defendants cannot be permitted to contend that there is no such site No.35 in existence. Thus looking from any angle, the evidence of PW1 to 4 coupled with the documents placed on record clearly establish that the plaintiff is in possession of the suit schedule property having purchased the same for a valuable consideration in OS No.26963/2012 17 the year 2012 and she has been paying taxes to the concerned authorities regularly.
18. Of-course the learned counsel for the defendant No.2 relied on following rulings; 1) (2008) 4 SCC 594 (Anathula Sudhakar V/s P. Buchi Reddy (Dead) by Lrs); 2) ILR 2010 KAR 2996 (Smt. Siriyala and Ors V/s B. N Ramesh); 3) (1994) 5 SCC 547 ((Premji Ratansey Shah and Ors V/s Union of Indian and Ors); and 4) (2008) 1 KLJ 524 (R. Sandhyarani V/s M. Mylarappa).
19. I have gone through the principle laid down by the Honb'le Apex Court and Hon'ble High Court of Karnataka and I am in respectful agreement with the principle laid down by the Hon'ble Courts. As aforesaid this suit is for bare injunction based on the possession and this court is not deciding the title of the plaintiff on the basis of the documents placed on record. This court has to find out whether the plaintiff is in possession as on the date of the suit. There is no contra evidence or materials on record to discard and disbelieve the evidence of PW1 to 4 and to doubt the genuineness of the documents placed on OS No.26963/2012 18 record. Had the defendants entered into witness box, an opportunity would have been available to the plaintiff to elicit the truth from the mouth of defendants. For obvious reasons, the defendants not stepped into witness box. The very defence taken in their written statement is suffice to infer interference by the defendants with the possession and enjoyment of the suit schedule property by the plaintiff. The evidence of PW1 to 4 regarding interference by the defendants remains unimpeached. Absolutely there is no cross-examination on the said aspect. Under the above circumstances the plaintiff has been able to prove that she is in possession and enjoyment of the suit schedule property as on the date of the suit. The plaintiff also able to establish there is interference by the defendants with her possession and enjoyment of the suit schedule property. Therefore the plaintiff is entitled for the reliefs claimed in the above suit. Accordingly Issue Nos.1 to 3 are answered in the Affirmative.
OS No.26963/2012 19
20. Issue No.4:-
In view of findings on the above Issues, the suit of the plaintiff deserves to be decreed. Accordingly, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed, as prayed for.
The defendants, their agents, henchmen, supporters or any person/ s acting on behalf of the defendants or through them are permanently restrained from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.
Parties to bear their own costs.
Draw decree accordingly.
----
(Dictation given to the Judgment Writer, transcribed by him, after correction, signed and pronounced by me in the open court on this the 15th day of March, 2023.) Digitally signed PG by P G CHALUVA CHALUVA MURTHY MURTHY Date: 2023.03.24 17:13:26 +0530 [P. G Chaluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) OS No.26963/2012 20 Schedule All the piece and parcel of the property bearing No.35, Assessment No. 20/3A, situated at Guddadahalli village, Kasba hobli, Bangalore North Taluk, now comes under BBMP limits situated at Chikka Munivenkatappa Layout, Hebbal, Old Ward No. 96, new BBMP Ward No.21, Bangalore, measuring East-West : 30 feet and North-South: 42 feet - totally measuring 1260 square feet along with 3 square A.C. sheet roofed, red-oxide floored house, wall constructed with cement and brick, door and windows prepared by Home wood with all civic amenities and bounded on the:
East by: Site No. 34, belongs to Saraswathi Hebbar West by: Site No. 36 North by: Harijan Colony South by: 20 Road.
Digitally signed by P P G CHALUVA G CHALUVA MURTHY MURTHY Date: 2023.03.24 17:13:32 +0530 [P. G Chaluva Murthy] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) OS No.26963/2012 21 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: K. Shashikala PW.2: Nandish. M PW.3: Raju.M. PW.4: V.P. Ramadass
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P1 to 4: Property Tax paid receipts Ex.P5: Form B property registrar Extract Ex.P6: Original agreement of sale dt. 14.10.1987.
Ex.P7: Affidavit dt. 14.10.198. Ex.P8: General Power of Attorney dt.14.10.1987. Ex.P9: Registered Sale Deed dt. 07.06.2012.
Ex.P10 to Ex.P14: 5 property tax receipts Ex.P15: Encumbrance certificate.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
Nil LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D1: Death certificate of Munivenkatappa. Ex.D2: Death certificate of Munikrishnappa.Digitally signed
PG by P G CHALUVA
CHALUVA MURTHY
MURTHY Date: 2023.03.24
17:13:39 +0530
[P. G Chaluva Murthy]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73)