Bangalore District Court
Sri. Manjunath vs Sri. Yathin .D. Setty on 21 December, 2020
IN THE COURT OF THE IV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH-21)
Dated this 21st December 2020.
PRESENT:
SRI. MOHAMMED MUJEER ULla C.G. B.A. LL.B.
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
(Concurrent charges)
ORIGINAL SUIT NO. 25304/2010
PLAINTIFF: 1 SRI. MANJUNATH
Aged about 33 years
S/o Late Sri. Munikrishnappa
R/at No.26, Dasappa Layout
Kowdenahalli Village
Ramamurthynagara
Bengaluru East Taluk.
(REP BY SRI. G. VIJAY KUMAR)
V/s
DEFENDANTS: 1 SRI. YATHIN .D. SETTY
S/o K.D. Setty
Aged about 31 years
R/at No.5, 9thMain Road
Shop Road, 2nd Block
Jayanagar
Bangalore-560 011.
2
OS.25304/2010
2 SMT. SHOBHANA
D/o Sreedharan
R/at No.24, Sai Layout
1st Block,Channasandra
Uttarahalli
Bengaluru-61.
Date of Institution of the suit 22/02/2010
Nature of the Suit (Suit on pro-note, suit for
declaration and possession, suit for injunction, INJUNCTION
etc.)
Date of the commencement of recording of the
25/01/2011
Evidence.
Date of pronouncement of Judgment 21/12/2020
Year/s Month/ Day/s
Total duration
s
10 09 30
JUDGMENT
Plaintiff has filed the instant suit for the relief of perpetual prohibitory injunction restraining the defendants from interfering with his peaceful possession & enjoyment of the suit property and cost.
3
OS.25304/2010 FACTS OF THE CASE:
2. Plaintiff is the owner and in possession of the suit property. He purchased the suit property under the Registered Sale Deed dated:09/11/2006. The suit property is a residential house constructed in the site measuring 30 X 40 feet. Since the date of purchase, the plaintiff has been in possession & enjoyment of the said property. On the basis of sale deed his name was entered in the katha of the suit property in Town Municipal Council, K.R.Puram. He obtained electricity connection to the suit property. Plaintiff contends that, now the suit property comes within the limits of Bruhat Bengaluru Mahanagara Palike (BBMP). Therefore the katha of the suit property was effected in his name in BBMP. He contends that, defendants have no manner of any right, title, interest or possession in or over the suit property or any portion thereof.
Nevertheless, on 29/01/2010 & on 20/02/2010 they came near the suit property and made attempts to interfere with his possession 4 OS.25304/2010 & enjoyment of the suit property and also to illegally dispossess him from the said property. Plaintiff contends that, he given complaint against defendants in the jurisdictional police station. The police advised him to approach Civil Court. He contends that, 1st defendant is the member of Jai Karnataka Party. He is having men and money. He and 2 nd defendant using their political infuence, muscle & money power can illegally dispossess him from the suit property at any time. The aforesaid acts of the defendants and their men are to be restrained by granting the relief of injunction. On these and other grounds stated in the plaint, plaintiff prays to decree the suit and to grant the relief of perpetual prohibitory injunction as prayed for.
3. Defendants resisted the suit by filing separate written statement. Though they filed separate written statements, the contentions taken by them are one and the same. They denied the plaint averments in toto. They contend that, the suit property 5 OS.25304/2010 formerly belonged to one Krishnappa. Under the Registered Sale Deed dated:19/08/1996, he sold the said property in favor of Smt.Kamala, Smt.Bharathi & Sri.Chandra Bose. Since the date of purchase, the above named 3 persons had been in possession & enjoyment of the suit property. 2 Nd defendant is the daughter of Smt.Bharathi & sister of Sri.Chandra Bose, the joint owners of suit property. After the death of Smt.Kamala one of the joint owners of suit property, the said property had been in possession of 2nd defendant & her family members. 2Nd defendant by taking power of attorney of other co-owners of the suit property executed sale deed dated:18/12/2009 in favor of 1st defendant. Since the date of purchase, 1st defendant has been in possession & enjoyment of the suit property. Defendants contend that, plaintiff and one Srinivas colluding with each other created and concocted sale deed dated:09/11/2006 in respect of the suit property and on the strength of the said sale deed, they started to interfere with 1st defendant's peaceful possession & enjoyment of 6 OS.25304/2010 the suit property. Therefore he filed OS.No.3672/2010 in CCH-38 against plaintiff and his vendor seeking the relief of declaration to declare that, the sale deed dated:09/11/2006 made in favor of plaintiff is null and void and not binding on him and consequential relief of permanent injunction. Defendants contend that, plaintiff or his vendor were never in possession of the suit property. Therefore the question of defendants interfering with plaintiff's possession & enjoyment of the suit property would not arise. Defendants contend that, the cause of action alleged in the plaint is false & imaginary. On these and other grounds stated in the written statement, defendants pray to dismiss the suit.
4. On the basis of the aforesaid pleadings, on 18.11.2010 the then presiding officer has formulated the following: 7
OS.25304/2010 ISSUES
1. Whether the plaintiff was in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves alleged interference?
3. What decree or order?
5. Plaintiff examined himself as PW1 and produced documents marked at Ex.P.1 to 28.
6. 1st Defendant examined himself as DW1 and produced documents marked at Ex.D. 1 to 12. 2 nd defendant has neither lead oral evidence nor produced documents.
7. Heard the arguments on both side and perused record.
8. My findings on the above Issues are as under:
Issue No.1: In the Affirmative. 8
OS.25304/2010 Issue No.2: In the Affirmative. Issue No.3: As per the final order for the following:
REASONS
9. ISSUE NO.1: Plaintiff to prove his possession over the suit property examined himself as PW1 & produced documents marked at Ex.P.1 to P.28. Plaintiff who was examined as PW1 has reiterated & reaffirmed the plaint averments. He produced Ex.P.1 Original Sale Deed dated:08/11/2006, Ex.P.2 to 7 and Ex.P.26 Tax paid receipts, Ex.P.8, 10 & 25 Electricity Bills & receipts, Ex.P.11 Endorsement issue by BESCOM, Ex.P.12 B- Register Extract, Ex.P.13 to 16 & 28 Encumbrance Certificate, Ex.P.17 Copy of complaint to the police, Ex.P.18 & 19 copy of acknowledgment issued by the police, Ex.P.20 GPA dated:24/05/2001, Ex.P.21 Absolute sale deed dated:19/08/1996, Ex.P.22 Certified copy of judgment & decree in OS.No.3672/2010, 9 OS.25304/2010 Ex.P.23 Certified copy of judgment & decree dated:14/12/2015 in OS.No.6682/2008, Ex.P.24 BWSSB Bills, Ex.Ex.P.27 Gas bills.
10. 1st defendant examined himself as DW1. He reiterated & reaffirmed the averments of the written statement. He produced Ex.D.1 Sale Deed dated:18/12/2009, Ex.D.2, 3, 10 & 11 Encumbrance Certificates, Ex.D.4, 7 & 8 Tax paid receipts, Ex.D.5 & 6 katha certificates, Ex.D.9 Electricity Bills, Ex.D.12 copy of complaint.
11. From the facts stated by PW1 & DW1 and from the documents produced by them, it is evident that, the suit property originally belonged to Krishnappa, S/o.Basappa. A perusal of Ex.P.21 Sale Deed dated:19/08/1996 would show that, under the said sale deed, Krishnappa sold the suit property in favor of Smt.Kamala, W/o.Govinda Swamy.K, Chandra Bose S/o.N.Sreedharan & Bharathi W/o.Sreedharan. Plaintiff and defendants admitted Ex.P.21 Sale Deed. Ex.P.20 is the Power of 10 OS.25304/2010 Attorney dated:24/05/2009 executed by Smt.Kamala, Sri.Chandra Bose & Smt.Bharathi the joint owners of the suit property in favor of Srinivas. A perusal of Ex.P.20 Power of Attorney would show that, under the said Power of Attorney, the above named 3 joint owners of the suit property inter-alia authorized their attorney holder to execute the sale deed of the suit property. A perusal of Ex.P.1 Sale Deed dated:08/11/2006 would show that, Srinivas as attorney holder of the joint owners of the suit property namely Smt.Kamala, Sri.Chandra Bose & Smt.Bharathi executed the said sale deed in favor of plaintiff. A perusal of Ex.P.2 would show that, on the basis of Ex.P.1 sale deed, the katha of the suit property was effected in the name of plaintiff in Town Municipal Council, K.R.Puram. Plaintiff has stated that, now the suit property comes within the limits of BBMP, therefore he effected katha of the suit property in BBMP. Ex.P.3 to 7 and Ex.P.28 are the tax paid receipts & Ex.P.12 is the B- Register Extract of suit property. A perusal of the same would 11 OS.25304/2010 show that, after the suit property comes within the limits BBMP, the katha of the suit property was made in the name of plaintiff and he paid tax to the BBMP. Ex.P.10 & Ex.P.24(1 to 3) are the water bill paid receipts. Ex.P.11 is the endorsement issued by BESCOM. A perusal of the same would show that, the electricity connection taken to the suit property in the name of B.Krishnappa, the original owner of the suit property was transferred in the name of plaintiff. A perusal of Ex.P.8, 9, 25 Electricity bills and paid receipts would show that, plaintiff has paid electricity charges of the suit property. Thus the above documents would support the testimony of plaintiff that, he purchased the suit property under Ex.P.1 Sale Deed dated:09/11/2006 executed by Srinivas, the attorney holder of the joint owners of the suit property namely Smt.Kamala, Sri.Chandra Bose & Smt.Bharathi, on the basis of the said sale deed his name was entered in the katha of the suit property in Town Municipal Council, K.R.Puram & BBMP, Electricity 12 OS.25304/2010 connection was also changed in his name and he has been paying tax and water bills in respect of suit property. In the cross examination of PW1, except putting suggestion that, he colluding with Srinivas created Ex.P.1 Sale Deed, which was denied by PW1 nothing has been elicited to disbelieve his testimony that, since the date of purchase of the suit property under Ex.P.1 Sale Dee, he is in possession & enjoyment of the suit property. Thus plaintiff by examining himself as PW1 & by producing the above documents discharged the initial burden of proving his case that, as on the date of suit, he is in possession of the suit property.
12. 1st defendant to prove his case that, he is the owner and in possession of the suit property has produced Ex.D.1 Sale Deed dated:18/12/2009. A perusal of the said sale deed would show that, 2nd defendant has executed the said sale deed in favor of 1st defendant in her capacity as attorney holder of Smt.Kamala & Sri.Chandra Bose. In Ex.D.1 it is stated that, 13 OS.25304/2010 Smt.Kamala & Chandra Bose executed power of attorney dated:16/01/2009 in favor of 2 nd defendant. Defendants in their written statement have not stated about execution of Ex.D.1 Sale Deed in favor of 1st defendant by 2nd defendant as attorney holder of Smt.Kamala & Sri.Chandra Bose. Defendants have not produced the said power of attorney. DW1 in the cross examination has stated that, he do not know on which date the joint owners of the suit property namely Smt.Kamala & Sri.Chandra Bose executed power of attorney in favor of 2 nd defendant. Further he stated that, after execution of Ex.D.1 Sale Deed, 2nd defendant has not handed over the original power of attorney to him. He stated that, he is having photocopy of the said power of attorney and he has no objection to produce it to the Court. For the reasons best known, 1 st defendant has not produced the said power of attorney to the Court. Thus defendants have not produced any document to support their contention that, 2nd defendant was having an authority to 14 OS.25304/2010 execute Ex.D.1 Sale Deed in favor of 1 st defendant. From Ex.P.1 Sale Deed & Ex.D.20 Power of Attorney would show that, Srinivas as attorney holder of 3 joint owners of the suit property namely Smt.Kamala, Sri.Chandra Bose & Smt.Bharathi sold the suit property in favor of plaintiff under Ex.P.1 Sale Deed dated:09/11/2006. After execution of the said sale deed, the joint owners of the suit property namely Smt.Kamala & Sri.Chandra Bose have no authority to execute power of attorney in favor of 2nd defendant on 16/01/2009 to deal with the suit property. A perusal of Ex.P.23 Judgment in OS.No.6682/2008 would show that, plaintiff has filed the said suit against 2 nd defendant for the relief of injunction in respect of suit property. 2 Nd defendant contested the said suit. After trial, the said suit was decreed granting perpetual prohibitory injunction in favor of plaintiff and against 2nd defendant. Thus there is already a decree of injunction in favor of plaintiff and against 2 nd defendant restraining her from interfering with plaintiff's possession & 15 OS.25304/2010 enjoyment of the suit property. In the instant case, 2 nd defendant though appeared through counsel and filed written statement, has not entered into witness box. DW1 in the cross examination has stated that, he will try to examine his vendor, the 2 nd defendant to prove his case. For the reasons best known, 2 nd defendant has not entered into witness box. There is no evidence on record to show that, 2nd defendant challenged Ex.P.23 judgment and decree passed in OS.No.6682/2008. Therefore the decree passed in the said suit which reached finality binds on 2 nd defendant, the vendor of 1st defendant. A perusal of Ex.P.22 Judgment & Decree passed in OS.No.3672/2010 would show that, after Ex.D.1 Sale Deed, 1st defendant filed the said suit against plaintiff and his vendor Srinivas for the relief of declaration and injunction. After trial the said suit was dismissed. In Ex.P.23 Judgment it has been held that, 1 st defendant failed to prove his title and possession over the suit property. 1 St defendant has stated that, he filed appeal against Ex.P.22 Judgment and it 16 OS.25304/2010 is pending for consideration. But as I have already stated above, the finding recorded in Ex..23 Judgment regarding plaintiff's possession in the suit property is binding on 2 nd defendant, the vendor of 1st defendant. In view of 1st defendant claiming right, title & possession over the suit property from 2 nd defendant, the said judgment will also binds on 1st defendant.
13. 1st defendant has produced Ex.P.2, 3, 10 & 11 Encumbrance certificates, Ex.P. 5 & 6 katha certificates, Ex.P.7 & 8 Tax paid receipts. There is no dispute that, under Ex.P.21 sale deed, Smt.Kamala, Sri.Chandra Bose & Smt.Bharathi jointly purchased the suit property. Therefore the BBMP records standing in the name of Smt.Kamala, Sri.Chandra Bose & Smt.Bharathi are of no assistance to 1st defendant to prove his possession over the suit property. In view of 1 st defendant failed to prove that, as on the date of execution of Ex.D.1 Sale Deed dated:18/11/2009, 2nd defendant was having valid authority to execute the said sale 17 OS.25304/2010 deed, the katha of the suit property effected in the name of 1 st defendant on the basis of Ex.D.1 Sale Deed will not in any way help him to prove his possession over the suit property.
14. DW1 in the cross examination has stated that, he has given the house existing in the suit property on rent. He stated that, his employees namely Theerthaprasad & Sanmith are in possession of the house existing in the suit property. He produced rent agreements, but for the reasons best known the said rent agreements were not marked as exhibits. In the cross examination DW1 has stated that, he can produce video showing that, his tenants Theerthaprasad & Sanmith were in possession of the suit property. For the reasons best known, he did not produce the said video. Thus the oral & documentary evidence produced by 1st defendant would not help him to prove that, his vendor the 2nd defendant was having authority to execute Ex.D.1 Sale deed and under the said sale deed, she handed over the 18 OS.25304/2010 possession of the suit property to him. As rightly contended by the learned counsel for the plaintiff that, when the joint owners of the suit property namely Smt.Kamala, Sri.Chandra Bose & Smt.Bharathi executed Ex.P.1 sale deed dated: 08/11/2006 in favor of plaintiff through their attorney holder Srinivas, in the year 2009 would have no right to execute power of attorney in favor of 2nd defendant authorizing her to sell the suit property. Therefore the sale deed and other documents produced by 1 st defendant will not help him to prove that, he is in possession of the suit property. On the other hand, the documentary evidence produced by plaintiff would support his testimony that, on the date of suit, he is in possession of the suit property. In view of the above, I hold that, plaintiff by examining himself as PW1 & by producing the documents marked at Ex.P.1 to Ex.P.28 has proved his possession over the suit property as on the date of suit. Accordingly, I answer Issue No.1 in the AFFIRMATIVE. 19
OS.25304/2010
15. ISSUE NO.2: PW1 on oath has stated that, on 29/01/2010 & on 20/02/2020 defendants came near the suit property and made attempts to dispossess him from the said property. In this regard, he has given complaint to the jurisdictional police station. Ex.P.17 & 19 are the copy of complaint given by plaintiff to the jurisdictional police on 29/01/2010 & 20/02/2010 alleging interference by defendants. In the instant case, defendants contend that, 1 st defendant is the owner and in possession of the suit property. From the very contention taken by defendants it is clear that, on the basis of Ex.D.1 Sale Deed dated:18/12/2009 executed by 2 nd defendant in favor of 1st defendant, 1st defendant by claiming right, title, interest and possession over the suit property is interfering with plaintiff's possession over the suit property. Thus plaintiff proved interference by defendants with his possession & enjoyment of the suit property. Accordingly, I answer Issue No.2 in the AFFIRMATIVE.
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OS.25304/2010
16. ISSUE NO.3: While answering Issue No.1 I have held that, plaintiff proved his possession over the suit property & while answering Issue No.2 I have held that, plaintiff proved interference by defendants with his possession & enjoyment of the suit property. In view of my said findings and having regard to the contentions put forth by defendants, the Court is of the opinion that, to protect the plaintiff's possession over the suit property, the defendants are to be restrained from interfering with plaintiff's possession & enjoyment of the suit property. In view of the above, I hold that, plaintiff is entitled for the relief of perpetual prohibitory injunction as prayed for. In view of the above & in view of my reasons & findings on Issue No.1 & 2, I pass the following:
ORDER Plaintiff's suit is decreed with costs.
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OS.25304/2010
Defendants, their men, agents or
whomsover on their behalf are
permanently restrained from interfering with plaintiff's possession & enjoyment of the suit property.
****** (Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 21 st day of December 2020) (MOHAMMED MUJEER ULLA C.G.) C/C. IV Addl. City Civil & Sessions Judge, Mayohall Unit, City Civil Court, Bengaluru. (CCH - 21) ANNEXURES:-
LIST OF WITNESS EXAMINED FOR THE PLAINTIFFS:
PW1 MANJUNATH LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1 Original sale deed dated:08/11/2006
22
OS.25304/2010
Ex.P.2 to 7 The tax receipts
Ex .P.8 & 10 Electricity bills and receipts
Ex.P.11 Endorsement issued by BESCOM
Ex.P.12 Extract of property tax register
Ex.P.13 to 16 Encumbrance certificate
Ex.P.17 Copy of the complaint to the police
Ex.P.18 Acknowledgement issued by the police
Ex.P. 19 Another copy of the complaint to the police
Ex.P. 20 GPA executed by my vendors in favor of
Sreenivasa
Ex.P. 21 Absolute sale deed dated:19-08-1996
Ex.P. 22 Certified copy of judgment and decree in
OS.No.3672/2010
Ex.P. 23 Certified copy of judgment and decree
dated:14/12/2015 in O.S.No.6682/2008
Ex.P. 24 (1 to 4) BWSSB bills
Ex.P. 25 Electricity bill
Ex.P. 26 Tax paid receipt
Ex.P. 27 Three gas bills
Ex.P. 28 Encumbrance certificate
LIST OF WITNESS EXAMINED FOR THE DEFENDANTS DW1 YATEEN D.SHETTY 23 OS.25304/2010 LIST OF DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D. 1 Sale Deed dated:18/12/2009
Ex.D. 2 & 3 Encumbrance certificate
Ex.D.4 Tax paid receipts
Ex.D.5 & 6 Khatha Certificates
Ex.D. 7 & 8 Tax paid receipts
Ex.D. 9 Electricity bills
Ex.D. 10 & 11 Encumbrance certificate
Ex.D. 12 Complaint Copy
(MOHAMMED MUJEER ULLA C.G.)
C/C. IV Addl. City Civil & Sessions Judge,
Mayohall Unit, City Civil Court,
Bengaluru. (CCH - 21)