Bangalore District Court
Archana P vs Veena S on 30 September, 2024
KABC010073402018
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT : SRI.BHAT MANJUNATH NARAYAN,
B.Com, LL.B.(Spl.)
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 30 TH DAY OF SEPTEMBER 2024
O.S.No.1931/2018
Plaintiff:- Mr.P.Archana,
D/o. Late B.S.Prabhakar,
W/o. B.V.Rakesh
Aged about 31 years,
Residing at No.10/1,
'Jaithra Rama Nilaya',
Narayanappa Compound,
1 st Cross, Arehalli,
Next to V2 Apartment,
3 rd cross, AGS Layout,
Bengaluru -560061.
(By Sri.Rajagopala Naidu-
Advocate)
-VS-
Defendants: 1. Mrs.Veena S.
W/o. V.Jitendra,
2 O.S.No. 1931 of 2018
Aged about 42 years,
Residing at No.344,
2 nd 'B' Cross, 1 st 'B' Main,
VHBCS Layout, Girinagar,
Bengaluru -560085
2. Mr.V.S.Hemadri,
S/o.Srinivasulu Naidu,
Aged about 47 years
Residing at No.69,
Kaverinagar,
Kathriguppe Main Road,
BSK 3 rd Stage,
Bengaluru -560085.
(By Sri.M.Devaraj-
Advocate)
Date of Institution of the suit : 12.03.2018
Nature of the Suit : Permanent injunction
Date of commencement of : 19.11.2020
recording of the evidence
Date on which the Judgment : 30.09.2024
was pronounced
Total Duration : Years Months Days
06 06 18
(BHAT MANJUNATH NARAYAN)
XLIII Addl. City Civil & Sessions Judge,
Bengaluru
3 O.S.No. 1931 of 2018
J U D G M E N T
That, plaintiff has filed this suit seeking relief of perpetual injunction restraining the defendants from interfering with the possession & enjoyment of the suit schedule property by the plaintiff. The schedule property is non-agricultural land described in the schedule as under:-
SCHEDULE All the piece and parcel of house property bearing No.1449 situated at 1 st 'I' Main, Girinagar 2 nd phase, Bengaluru -85, PID No.54-211-1449, Ward No.162, measuring East to West: 20 feet and North to South:
40 feet together with the existing building with amenities and bounded on the:-
East by : Property No.1448 West by : Remaining western portion of the same property No.1449, North by : Road South by : Property No.970 4 O.S.No. 1931 of 2018
2. The facts leading to filing of this suit are stated in brief as under:-
a. The plaintiff submits that she is the absolute owner in possession and enjoyment of the suit schedule property and has purchased the property as per registered Sale Deed, dated 13.08.2012 executed by one Ramanna, S/o. Govindappa. The plaintiff submits that Sale Deed dated 13.08.2012 came to be registered in the Offi ce of the Sub-Registrar, Chamarajpet and in pursuant to Sale Deed, she was put in possession of the schedule property. The plaintiff submits that her vendor Ramanna had constructed a building in the schedule property prior to the execution of the Sale Deed. The plaintiff has further stated that as per the registered Sale Deed, dated 13.08.2012, khatha has been mutated in her name and she is paying taxes to the concerned authorities regularly. 5 O.S.No. 1931 of 2018
b. The plaintiff submits that 1 st defendant claiming herself as owner of site No.1450 came near the schedule property on 07.03.2018 and tried to trespass claiming that schedule property is the portion of her property. The plaintiff submits that she has shown her title deeds, but the 1 st defendant is not at all prepared to give heed to the requests made by the plaintiff. Plaintiff preferred a complaint before the jurisdictional police and however, the plaintiff advised to approach the competent civil court as matter in dispute is civil in nature. The plaintiff submits that 2 nd defendant came along with 1 st defendant on 07.03.2018 and tried to dispossess the plaintiff from the suit property. The plaintiff submits that on 08.03.2018, he has applied for certified copy of the boundaries and measurements of the Sale Deed of the 2 nd defendant which is entirely different and 2 nd defendant without there being any right, title or 6 O.S.No. 1931 of 2018 interest over the suit schedule property, has wrongly claiming property belonging to the plaintiff. The plaintiff submits when she is in physical possession of the suit property and defendants are posing constant threats of trespass and threat of dispossession, plaintiff was constrained to file the suit for perpetual injunction restraining the defendants from interfering with the possession and enjoyment of the suit schedule property by the plaintiff.
3. a. In response to the summons issued, the 2 nd defendant has appeared and filed written statement. In the written statement, defendant No.2 has denied that plaintiff is the owner in possession of the suit schedule property with boundaries mentioned in the plaint. The defendant No.2 contended that plaintiff colluding with Ramanna has created Sale Deed in respect of the property which is not belonging to Ramanna and as such, the plaintiff is not in possession 7 O.S.No. 1931 of 2018 of the suit property. It is submitted by the defendant No.2 that Sy.No.7 to 19, 26, 28,29,30 and 32 of Avalahalli village and property bearing Sy.No.88,99,100 and 102 of Uttarahalli hobli, Bengaluru was acquired and belonged to Vishwa Bharathi Housing Co-Operative Society Ltd., (VHBCS), Bengaluru. The defendant No.2 contended that Society has formulated a scheme to form a residential layout known as Vishwabharathi House Building Co-operative Society, Phase-II, Girinagar by carving residential sites of various measurements for the benefit of its members. The 2 nd defendant submits that he obtained membership from Vishwabharathi House Building Co-operative Society on 15.05.1993 and had applied for allotment of a site in the layout planned and developed by the Vishwabharathi House Building Co-operative Society in phase-II of Girinagar, Bengaluru City by paying requisite amount. The 1 st defendant submits that he 8 O.S.No. 1931 of 2018 was intimated by the Society regarding allotment of site No.1449, measuring 30 ft. x 40 ft. bounded on East by site No.1448, on West by site No.1450, North by road and South by site bearing No.970 and 969 which is described as written statement schedule property. The 2 nd defendant submits that he has paid an amount of ₹.15,000/- as consideration on 25.03.1994 and actual possession of the property was given to him by issuing possession certificate. The defendant submits that since 1994, he was in possession of the site No.1449 allotted to him by Vishwabharathi House Building Co-
operative Society and on 19.01.2018, Sale Deed has been executed in favour of the 2 nd defendant conveying absolute right over the written statement schedule property. It is submitted by the 2 nd defendant that as per Sale Deed dated 19.01.2018, he filed an application to enter his name into the revenue records and same is in process.
9 O.S.No. 1931 of 2018
b. The defendant submits plaintiffs in this case so also his siblings have filed O.S.No.1930/2018 and O.S.No.1932/2018 against the defendants and their father B.S.Prabhakar who was working as a Revenue Inspector in the offi ce of the Girinagar Sub-Division, BBMP in whose revenue jurisdiction the written statement schedule property is situated. The defendant No.2 submits that B.S.Prabhakar along with Narayanappa and Ramanna have hatched a conspiracy to grab the valuable written statement schedule property and site No.1450 which is owned by 1 st defendant herein have created false revenue documents in the name of Ramanna and Narayanappa by fabricating the documents. It is submitted bu defendant that a false document stating that Holder Khatha in the name of Narayanappa for site No.1450 which belonged to 1 st defendant and Holder Khatha in 10 O.S.No. 1931 of 2018 favour of Ramanna in respect of site No.1449 belonging to 2 nd defendant has been created. The defendant No.2 submits that on the basis of fabricated documents, Narayanappa and Ramanna who had no right of whatsoever over the property Nos.1450 and 1449 by bifurcated the said sites into 3 pieces have fraudulently registered in the name of Smt.Ashwini, P.Ganesh and Smt.Archana-plaintiff herein. It is submitted by the defendant No.1 that site No.1449 belonging to 2 nd defendant is shown as 1600 Sq.Ft. and what is conveyed by said Ramanna in favour of plaintiff and Ashwini is only 1200 Sq.Ft. and what happened to the balance 400 square feet is unknown. It is submitted by the defendant No.2 that reading of boundary mentioned in the Sale Deed of plaintiff and Ashwini executed by Ramanna shows that the said Ramanna has not retained any land belonging to him, any side of the said property. When the defendants 11 O.S.No. 1931 of 2018 applied for details of orders so passed by BBMP making khatha in respect of sites No.1449 and 1450, BBMP has issued endorsement that the said file is not available. The defendant contended that plaintiff and others have colluded with each other and have created written statement schedule property and as such, the 2 nd defendant had lodged a complaint against the plaintiff and others, Narayanappa, Ramanna and Prabhakar on 02.09.2018 with Girinagar police and upon receipt of first information report, registered a case in Crime No.242/2018 under Section 468, 465, 420, 419 and 471 r/w. Sec.34 of IPC. The defendant No.2 contended that during the investigation, police have collected information from the Vishwabharathi House Building Co-operative Society regarding allotment of site to the defendants and Sale Deed executed in favour of defendants and in respect of their possession. The defendant submits that entire 12 O.S.No. 1931 of 2018 area including site Nos.1449 and 1450 which is part and parcel of the residential layout formed by Vishwabharathi House Building Co-operative Society, the surrounding sites which also within the area allotted to Vishwabharathi House Building Co-operative Society to its members. It is submitted by the defendant No.2 that plaintiff or their vendor were members of the Vishwabharathi House Building Co- operative Society at any point of time and as such, the plaintiff is not in possession and enjoyment of the suit property. The defendant No.2 contended that plaintiff is neither owner nor in possession of the schedule property and as such, suit for relief of perpetual injunction is not maintainable and liable to be dismissed with costs.
4. On the basis of the pleadings following issues have been framed:-
1. Whether the plaintiff was in lawful 13 O.S.No. 1931 of 2018 possession of the suit schedule property as on the date of filing of the suit?
2. Whether the alleged interference is true?
3. What order?
5. The plaintiff got examined as P.W.1 and 13 documents are marked on behalf of the plaintiff. Defendants have not adduced oral evidence. But Ex-D1 is marked during cross examination of Pw-1.
6. Heard counsel appearing for the plaintiff and defendants. Perused the oral and documentary evidence available on record and my findings on the above are as below:-
Issue No.1: In the negative Issue No.2: Does not arise for consideration Issue No.3: Plaintiff is not entitle for the relief claimed and as per the final order for the following:-14 O.S.No. 1931 of 2018
REASONS
7. Issue No.1:_ This suit is filed for perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Unless and until plaintiff proves his possession over the suit property, suit for injunction is not maintainable.
8. To establish that plaintiff is in possession of the suit property, the plaintiff got himself examined as P.W.1 and produced 13 documents. In 15 O.S.No. 1931 of 2018 order to disprove the case of the plaintiff, the defendants have not adduced oral evidence. The plaintiff has to stand on his own legs and he cannot take the benefit of the weakness of the defendant or Non-appearance of the defendant or failure of defendant to lead evidence, does not automatically prove the case of the plaintiff.
9. That, I have perused documents marked on behalf of the plaintiff in detail. The plaintiff has produced Sale Deed which is marked as Ex.P1. On perusal of Ex.P1, Sale Deed dated 13.08.2012, it is mentioned that Ramanna has sold Corporation property bearing No.1449, situated at 1 st 'I' main, Girinagar 2 nd phase, Ward No.54, new Ward No.162, measuring East to West: 20 feet and North to South: 40 feet to the plaintiff herein. It is mentioned in the Sale Deed that the vendor is the registered khatha holder of the property. It is mentioned in the sale deed that on 16 O.S.No. 1931 of 2018 13.08.2012, revenue authorities have issued khatha in favour of the vendor-Ramanna. The defendants have disputed that Ramanna had right over the suit property and claimed that Vishwabharathi House Building Co- operative Society has sold site No.1450 to Smt.Veena measuring, 30x40 feet, 2 nd phase, Girinagar. The Sale Deed of the defendants are produced by the plaintiff himself at Ex.P6. Ex.P6 shows that site No.1450 has been sold in favour of Smt.Veena/ defendant No.1 herein. The recitals makes it clear that the property is situated in Sy.No.7 to 16, 18, 19,26, 28, 29,30 and 32 of Avalahalli village and Sy.No.88, 99, 100 and 102 of Hosakerehalli village, Uttarahalli. This document shows that Vishwabharathi House Building Co-operative Society has formed residential layout in the above said Survey Number and one of the plot bearing No.1450 has been allotted to 1 st defendant Smt.Veena. Whereas, possession was given to 1 st defendant on 17 O.S.No. 1931 of 2018 25.03.1994 itself when property was allotted to her. Likewise, Ex.P7 the Sale Deed shows that the property bearing site No.1449 has been sold in favour of 2 nd defendant herein which is formed in the same layout abutting to the site of 1 st defendant. So, it is clear that defendants 1 and 2 are the purchasers of site No.1450 and 1449 formed by Vishwabharathi House Building Co- operative Society. Whereas, the plaintiff claims that property bearing No.1450 was belonging to his vendor and he has purchased the property as per Ex.P1- Sale Deed. To establish that property was belonging to his vendor- Ramanna, plaintiff has not produced any document which shows that his vendor Ramanna had right over the suit property. However, the defendant got marked Ex.D1 by way confrontation in cross examination of PW-1 which shows that R.Narayanappa was the holder of the Municipal Property No.1449. Except this document, no other documents are 18 O.S.No. 1931 of 2018 produced to show that Ramanna had acquired right over the suit property. It is stated that property has been granted to Ramanna, but no documents are produced in this regard. It has come out in evidence of PW-1 that father of the plaintiff is a Revenue Offi cer working in the same vicinity. Ramesh under the Sale Deed, had sold two square RCC building with red oxide flooring, cement and bricks are used for construction of wall building also, but no documents are produced to show that when the building was constructed, what is the exact measurement of the house etc.,
10. Ex.P13 is the relied on by the counsel for the plaintiff to say that the same proves the possession of the property. As per Ex.P13- Survey sketch prepared shows that there is site No.1450 and 1449 in Sy.No.89, Hosakerehalli village. The said Survey is conducted on behalf of the plaintiff and no 19 O.S.No. 1931 of 2018 notice was issued to the defendants. Apart from this, the Surveyor is also not examined by the plaintiff. The survey documents prepared by Survey department in the ordinary course of their duty is having presumption. However, if private party applied for survey, the survey is conducted and map produced cannot be considered unless the Surveyor is examined to prove the same. The Surveyor is not a court Commissioner appointed by this court, so that his report can be relied upon without he being examined. Hon'ble High Court of Karnataka in the decision reported in ILR 2008 Kar 1840 ( Parappa And Ors. vs Bhimappa And Anr) has observed as under :-
15. It is also possible that even in civil cases, a party to substantiate his case may rely upon the report of an expert which he has obtained prior to the institution of the suit or even after the institution of the suit. If the party wants to rely on such report and if he produces the said report into Court, the said report would not form part of the record and the report of such expert would not be treated as evidence in the suit by mere 20 O.S.No. 1931 of 2018 production of the same. In such circumstances, it is obligatory on the part of the party who relies on the said expert report to examine him, produce the report through him, get it marked and then subject the said expert for cross-examination of the opposite party. It is only after the examination of such expert, his report would become admissible in evidence. Therefore, it is necessary to bear this distinction in mind while dealing with a report of an expert, who is not a Commissioner.
11. So Ex.P13 is not helpful to the plaintiff to show that she is the lawful owner of the suit schedule property as surveyor is not examined to prove possession nor notice is issued to the defendants at the time of survey. Though there exist a registered Sale Deed in favour of the plaintiff, no documents were produced to prove that the person who has executed the Sale Deed had right as well as possession over the property sold or same was granted to the vendor of the plaintiff. No oral is also adduced to prove the title or possession of the vendor of the plaintiff. This being 21 O.S.No. 1931 of 2018 the case, in my considered view, it cannot be held that the plaintiff has proved that he is in lawful possession of the suit property as on the date of filing of the suit. Therefore, in my considered opinion, though the defendants have not adduced evidence in this suit, the documents produced by the plaintiff herself does not show that vendor of the plaintiff was in possession of the property and plaintiff is in possession of the property as on the date of the filing of the suit. Accordingly, issue No.1 is answered in the 'Negative'.
12. Issue No.2: - While answering Issue No.1, I have concluded that plaintiff has failed to show that she is in possession of the suit property. Once the possession of the property is not proved as on the date of filing of the suit, question of interference by the defendant does not arise for consideration. The defendants are claiming their property as site No.1450 22 O.S.No. 1931 of 2018 and 1499 as per the Sale Deed executed by Vishwabharathi House Building Co-operative Society and as per the Sale Deed only, the possession is with the defendant. So, when the plaintiff is not shown to be in possession of the suit property by cogent, documentary evidence or oral evidence, the question of interference does not arise for consideration. Accordingly, this issue is answered in the Negative.
13. Issue No.3:- This issue is with respect to the relief claimed. While answering issue Nos.1 and 2, I have concluded that the plaintiff is not in possession of the suit schedule property and interference does not arise for consideration. When plaintiff has failed to show the possession, the suit for perpetual injunction is not maintainable. Apart from this, defendants are claiming title as well as possession of the suit schedule property claiming that it is site Nos. 1450 and 1449 and in the plaint, the plaintiff has stated that defendants 23 O.S.No. 1931 of 2018 are claiming that they are the owners of the property belonging to the plaintiff contending that they have purchased the property under Ex.P6 and Ex.P7. So there was a cloud on the title of the plaintiff. The Hon'ble Apex Court in Anathula Sudhakar vs P. Buchi Reddy reported in AIR 2008 SC 2033 has observed as under :
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or 24 O.S.No. 1931 of 2018 when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be suffi cient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
14. It is clear from the observation made by the Hon'ble Apex court that when there is a cloud over the 25 O.S.No. 1931 of 2018 title of the plaintiff, then a suit for injunction simpliciter is not maintainable and plaintiff has to seek the relief of declaration of his title and perpetual injunction. Therefore, in my considered opinion, suit for perpetual injunction without seeking the relief of declaration is also not maintainable as there was cloud over the title of the plaintiff. This being the case, in my considered opinion, there is a bar under law to grant the relief of perpetual injunction. Hence on any count, plaintiff is not entitled for the relief of perpetual injunction as prayed. Therefore, in my considered opinion, the plaintiff is not entitled for any of the relief claimed in the suit. Accordingly, this issue is answered.
15. In view of the discussion and conclusion arrived at Issue No.1 & 2, the suit of the plaintiff is liable to be dismissed. Hence I proceed to pass the following:-
26 O.S.No. 1931 of 2018
ORDER The suit filed by the plaintiff is hereby dismissed.
Parties to bear their own costs.
(Dictated to the Stenographer Grade-I, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 30 th day of September, 2024.) (BHAT MANJUNATH NARAYAN) XLIII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiff:-
P.W.1 Mrs. P Archana
II. List of witnesses examined on behalf of defendants:-
-NIL-
III. List of documents exhibited on behalf of plaintiff:-
Ex.P1: Registered Sale Deed dated
13.08.2012
Ex.P2: Encumbrance certificate
Ex.P3: Khatha certificate
27 O.S.No. 1931 of 2018
Ex.P4: Khatha extract
Ex.P5: Tax paid receipt
Ex.P6&7: Certified copy of registered Sale
Deeds, dated 19.01.2018
Ex.P8: Khatha extract dated
30.04.2019
Ex.P9: Khatha certificate dated
30.04.2019
Ex.P10: Original Driving License of
P.W.1
Ex.P11: Voter I.D. card of P.W.1
Ex.P.12: Original passport of P.W.1
Ex.P.13: Sketch issued by the Surveyor
attached to E.E South BDA,
Bengaluru
IV, List of documents exhibited on behalf of defendants:
Ex.D1: Holder Khatha extract (BHAT MANJUNATH NARAYAN) XLIII Addl.City Civil & Sessions Judge, Bengaluru