Bangalore District Court
; K.R.Ashok Kumar vs Shivaramaiah on 24 November, 2015
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 24th November, 2015
PRESENT
SRI K.AMARANARAYANA B.Com., LL.M.
XVIII Addl.City Civil & Sessions Judge.
O.S.No.4535/2007
Plaintiff ; K.R.Ashok Kumar,
S/o Kuncham Radhakrishnaiah,
Aged about 45 years,
R/at No.18/4, 19th A Main
Muneshwara Block,
BANGALORE - 26.
[Rep.By.Sri.V.B.S., Advocate)
--V/s--
Defendants : 1. Shivaramaiah,
S/o Late Mallappa,
Aged about 58 years,
R/at No.24/2, 2nd main,
Lalji Nagar, Lakkasandra,
BANGALORE.
2. Ramesh,
S/o R.T.Kondappa,
Aged about 30 years,
R/at No.517, 8th Main,
Pragathipura,
2 OS.No.4535/2007
Banashankari - Kanakapura
Main Road,
BANGALORE.
3. Chandrashekar,
S/o Late Rajashekaraiah,
Major in age,
4. Udayashankar,
S/o Late Rajashekaraiah,
Major in age,
5. Subramanya,
S/o Late Rajashekaraiah,
Major in age,
6. Shivaprakash,
S/o Late Rajashekaraiah,
Major in age,
7. Maheshwara,
S/o Late Rajashekaraiah,
Major in age,
8. Jagadish,
S/o Late Rajashekaraiah,
Major in age,
9. Umashankar
S/o Late Rajashekaraiah,
Major in age,
Defendant Nos.3 to 9 are
R/at Hosakerehalli village,
Uttarahalli Hobli,
Bangalore South Taluk.
10. Rangaswamy,
3 OS.No.4535/2007
S/o Muniyappa
Major in age,
R/at Dwarakanagar,
Hosakerehalli village,
7th Cross, BSK III - Stage,
BANGALORE - 85.
11. Y.Nagaraj,
S/o Yerappa,
Major in age,
R/at Sarakki village,
Sarakki,
BANGALORE - 69.
(PLACED EXPARTE)
[Rep.By.Sri.V.R.R., Adv., for D1,
Sri.A.V.N., Adv., for D3 to 9,
Sri.S.J., Adv., for D10.]
Date of institution of suit ; 13.06.2007
Nature of the Suit (Pronote ; Declaration,
( Suit for declaration and Permanent Injunction.
Possession, Suit for and Possession.
Injunction, etc.)
Date of the commencement of ; 18.07.2008.
recording of the evidence.
Date on which the Judgment ; 24.11.2015
was pronounced.
Year/s Month/s day/s
Total duration: 08 05 11
[K.AMARANARAYANA]
XVIII Addl.City Civil Judge, Bangalore.
4 OS.No.4535/2007
JUDGMENT
The plaintiff filed this suit against the defendants 1 to 11 prays to pass judgment and decree of declaration, to declare him as an absolute owner and in possession of suit schedule property under registered gift deed dtd. 27.11.1980, and in the alternative if the court coming to the conclusion that he is not in possession of the property, direct the defendants to hand over possession of the schedule property to him and for perpetual injunction restraining the defendants, their agents, person or persons representing through or under them from interfering, dispossessing or taking forcible possession of the suit schedule property and from illegally or unlawfully trespassing the suit schedule property or excavate or put up any permanent construction on the schedule property and for costs.
2. Case of the plaintiff in brief is as follows:
The plaintiff is the absolute owner in possession and enjoyment of the suit schedule property by virtue of gift deed dtd.27.11.1980 through 10th defendant being the GPA holder of his vendor Rajashekaraiah. Pursuant to the same, all the revenue records mutated in his name. After the death his vendor Rajashekaraiah, in the month of December 2006 defendants 3 to 9 attempted to interfere and dispossess him from the suit schedule property. The defendants 2 to 11 in collusion filed a suit in OS.No.4952/2003 and attempted to commit the acts of 5 OS.No.4535/2007 dispossession. The plaintiff had also filed suit in OS.No.11058/2006 for a relief of alienating the suit schedule property. The defendants 3 to 7 all of a sudden on 28.5.2007 filed a memo stating that they have sold the property in favour of defendant No.1 & 2. He came to know that the defendant No.3 to 9 have played fraud in executing the sale deed in favour of defendant No.1 & 2. The defendant No.3 to 9 in the said suit admitted that they are aware of the registered document conveying title in his name. The sale deed obtained by the defendants 1 & 2 is a fraudulent sale deed obtained by fraud in order to deprive, deceive and dispossess his possession over the suit schedule property based on the said document. It is further contended that the defendants are suffered a decree in OS.No.11058/2006 dated 4.8.2010, restraining them from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property as an absolute owner there of and the said decree had attained finality. The sale deed executed in favour of defendant No.1 & 2 in respect of suit schedule property is a fraudulent document. The plaintiff is not a party to the fraudulent sale deed, he as sought for declaring his title and possession of the suit schedule property. The purchase made by defendant 1 & 2 during the pendency of the suit in OS.No.11058/2006 is a lis-pendence. The allegations that the defendants break open the gate and taken photographs have been purported to have been done by them to show that they are in possession and enjoyment when they are not in possession of the 6 OS.No.4535/2007 suit schedule property. Hence, the suit is filed for the above reliefs..
3. The defendant No.11 remained absent and he was placed exparte. The defendants 1 & 2 in their written statement denied all the plaint averments besides contending that plaintiff has not acquired any right, title or interest in the suit schedule property and the document relied by him is a factitious, cooked up and concocted document. The plaintiff has filed another suit in OS.No.11058/2006 against the defendants on the same cause of action, the present suit is hit by principles of resjudicata. The suit is not maintainable since the possession of defendant No.1 & 2 is admitted by the plaintiff. They have purchased the suit schedule property from defendant No.3 to 9 after satisfying the right, title, interest and possession over the property. They have also constructed a dwelling house. The suit of the plaintiff is nothing but to make unlawful gain. On the above grounds prayed to dismiss the suit.
4. Based on the above pleadings the predecessor in office has framed the following issues:
1. Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of institution of suit?
2. Whether the plaintiff proves the alleged interference of the defendants ?7 OS.No.4535/2007
3. What order or decree the parties are entitled to?
Addl.Issues framed on 26.8.2015:
1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property by virtue of the gift deed dated 27.11.1980?
2. Whether the plaintiff is entitled for alternative relief of possession of the suit schedule property as prayed?
5. The plaintiff to prove his case examined himself as PW1, got marked Ex.P1 to P41 and closed his side. The defendants have not adduced their evidence despite granting sufficient opportunity.
6. Heard the arguments of learned counsel Sri.V.B.S., appearing for plaintiff. The learned counsels, appearing for defendants have not submitted arguments. The learned counsel appearing for the plaintiff also relied upon the decisions reported in
1) 2006(9) SCC 235 ( VENKATAPPA -VS- ABDUL JABBAR)
2)(2006) 5 SCC 353 (PREM SINGH & OTHERS -VS-
BIRBAL AND OTHERS) 8 OS.No.4535/2007
3) AIR 1968 SC 1165 ( NAIR SERVICE SOCIETY LTD -VS- K.C.ALEXANDER & OTHERS)
4) AIR 2007 SC 900 (RAMJI RAI AND ANOTHER -
VS-JAGDISH MALLAH (DEAD) THROUGH LRS., & ANOTHER)
5)A84 2004 SC 4609 (RAMEGOWDA (D) BY LRS. -
VS- M.VARADAPPA NAIDU(D) BY LRS., & ANOTHER)
6) AIR 1977 SC 619 (RAM RATTAN & OTHERS -
VS- STATE OF U.P.)
7)(2008) 4 SCC 594 ( ANATHULA SUDHAKAR -VS-
P.BUCHIREDDY(DEAD) BY LRS., & OTHERS)
8) AIR 2005 SC 1243 ( SUDHIR JAGGI & ANR. -VS-
SUNIL AKASH SINHA CHKOUDHARY & OTHERS).
7. My answer to the above issues are as follows:
Issue No.1 : Negative.
Issue No.2 : Negative.
Addl.Issue No.1 : Affirmative
Addl.Issue No.2 : Affirmative
Issue No.3 : As per final order
For the following reasons:
REASONS
8. Issue Nos.1 to 3 & Addl.Issue Nos.1 & 2: To avoid repetition all these issues taken together for my consideration.
9 OS.No.4535/2007Initially the suit is filed for the relief of permanent injunction against the defendants 1 to 11. According to the plaintiff he is in possession and enjoyment of the suit schedule property as on the date of suit and the defendants 3 to 9 attempted to interfere with his possession over suit schedule property stating that they succeeded to the estate of their father Late Rajashekaraiah. The subject matter of the suit is the part and parcel of site No.40, situated in Sy.No.85 of Hosakerehalli village, Utharahalli Hobli, BSK III- stage , measuring East - West 40 feet, North - South: 30 feet and the same is bounded on East by: Site No.23, West by : Road, North by: Site No.39, and South by : Road. The defendants 3 to 9 have not filed written statement and not contested the suit. The contesting defendants are defendant No.1 & 2. The pleadings on record disclose that the defendants 1 & 2 are subsequent purchasers of suit schedule property from defendant No.3 to 9. Admittedly defendants 3 to 9 are the sons of Late Rajashekaraiah. The land in Sy.No.85 of Hosakerehalli village was belongs to Late Rajashekaraiah is not in dispute. It is not in dispute that the number of sites were formed in Sy.No.85 and sold to different persons. Admittedly the suit schedule property is carved out of Sy.No.85. According to plaintiff the suit schedule property was gifted to him by late Rajashekaraiah through his GPA Holder G.Rangaswamy who is arrayed as defendant No.10 in this suit under gift deed dtd.27.11.1980. The defendants 1 & 2 denied the plaintiff's title and possession over the suit schedule property.
10 OS.No.4535/2007Inview of that matter it is for the plaintiff to establish his title and possession over suit schedule property.
9. It is seen from the plaint averments, the plaintiff filed a suit in OS.No.11058/2006 against the defendants 3 to 11 for the relief of permanent injunction. The defendants 3 to 9 appeared in OS.No.11058/2006 and filed written statement denying the plaintiff's title and possession over suit schedule property. The plaintiff adduced evidence in the said suit and got the decree on 4.8.2010. Ex.P16 to 19 are the certified copies of plaint, written statement, memo and order sheet of OS.No.11058/2006. The defendant No.10 in the instant case arrayed as defendant No.8 therein and filed written statement supporting the case of the plaintiff therein. Ex.P37 is the certified copy of judgment and decree passed in OS.No.11058/2006 dated 4.8.2010. Ex.P37 confirms the plaintiff's possession over suit schedule property as on the date of institution of suit. Ex.P20 to 22 evident that the defendants 3 to 9 herein filed a suit in OS.No.4952/2003 against the defendant No.10 & 11 herein for a judgment and decree of permanent injunction. The defendant No.10 & 11 contested the said suit by filing written statement. Ex.P22 is the entire order sheet of OS.No.4952/2003 indicates that the evidence was recorded in the said suit. The order sheet Ex.P22 discloses the proceedings of OS.No.4952/2003 up to 16.7.2008. The subsequent proceedings of the said suit is not forthcoming.
11 OS.No.4535/200710. The plaintiff amended the plaint by inserting para 8(a) & (b). As per amendment of para 8 (a) & (b) disclose that the plaintiff lost his possession over the suit schedule property subsequent to the passing of decree in OS.No.11058/2006. It is important to mention here that the suit in OS.No.11058/2006 was decreed on 4.8.2010. Thus the plaintiff sought alternative relief of recovery of possession of suit schedule property from the defendants 1 & 2. Therefore the issue framed in respect of possession and alleged interfere does not arise at all. The defendants 1& 2 contended that the plaintiff cannot maintain this suit as the same is hit by principles of resjudicata inview of the judgment and decree passed in OS.No.11058/2006. The suit in OS.No.11058/2006 was filed for the relief of permanent injunction. It is well settled that any number of suits can be filed on recurring cause of action for the relief of injunction. It is to be noted that the plaintiff amended the plaint and sought relief of declaration and possession of suit schedule property. Therefore the contention raised by defendant No.1 & 3 that the suit is hit by principles of resjudicata cannot be accepted.
11. Ex.P1 is the certified copy of the Gift Deed and Ex.P2 is the registered GPA. Ex.P3 is the sale deed said to have been executed by defendant No.3 to 9 infavour of defendant No.1 & 2. Ex.P1 evident that the suit schedule property was gifted by Late Rajashekaraiah on 27.11.1980 through his GPA holder G.Rangaswamy in favour of plaintiff. The plaint & the written 12 OS.No.4535/2007 statement of OS.No.11058/2006 is marked as Ex.P16. In the written statement the defendants 3 to 9 of present case who are defendants 1 to 7 admits that Rajashekaraiah was died on 7.11.1993. In the written statement - Ex.P16 at para 7 these defendants admits that GPA executed by their father Rajashekaraiah in favour of G.Rangaswamy the defendant No.10 in the present case, has cancelled the same on 11.3.1988 by deed of revocation. Looking to the revocation of GPA by the Late Rajashekaraiaha, the execution of GPA by Late Rajashekaraiah in favour of defendant No.10 herein stands proved. Looking to the date of revocation of GPA, the gift deed executed by Rangaswamy in favour of plaintiff on 27.11.1980 is during the subsistence of GPA executed by Late Rajashekaraiah. Therefore the gift deed Ex.P1 is valid under the law. Ex.P32 to 36 the sale deeds executed by the GPA holders of Rajashekaraiah supports the case of the plaintiff in respect of GPA executed infavour of defendant No.10. Thus the contention of the defendants 1 & 2 that the GPA executed by Rajashekaraiah in favour of defendant No.10 herein is not valid cannot be accepted. .
12. Ex.P5 & 6 the encumbrance certificates evident the transfer of ownership from Rajashekaraiah to the plaintiff. Ex.P9, 10 & 11 evident that the plaintiff approached the BBMP in the year 1996 and in the year 2007 to transfer katha to his name. Ex.P10 the endorsement issued by BBMP disclose that the transfer of katha in respect of revenue sites was stopped as per Government 13 OS.No.4535/2007 order. Reading the contents of Ex.P10 probably the katha of suit schedule property was not made in the name of plaintiff in view of prohibition by the Government order in respect non-converted sites. Therefore non-transferring of katha of suit schedule property to the plaintiff's name will not take away his right and possession over suit schedule property in the year 2007. It is seen from Ex.P14 endorsement issued by BBMP dtd.28.9.2007 evident that there is no entry in the documents in respect of transfer of katha to the name of Smt.Sivagami @ Sivamma. There is nothing on record placed by the defendants 1 & 2 to show that Ex.P14 is created by the plaintiff for the purpose of this case. Therefore it could be said that Ex.P14 shown to be in the name of Smt. Sivagami @ Sivamma is a fraudulent one. Ex.P38 to 41 the documents obtained by the plaintiff under RTI, disclose that there was no entry in respect of transfer of katha in the name of defendants 3 to 9 by BBMP.
13. Ex.P23 to 27 disclose that the plaintiff engaged a watchman to lookafter the suit schedule property and paid wages at Rs.650/- permonth. Ex.P28 the blue print of the layout plan discloses the existence of suit schedule property. A perusal of boundaries mentioned in Ex.P1 tallies with the boundaries as shown in Ex.P28. Ex.P3 is the sale deed came in to existence on 14.5.2007 infavour of defendant No.1 & 2. Ex.P1 clearly go to show that late Rajashekaraiah have not left behind the suit schedule property to the defendant No.3 to 9 to alienate the same. Late Rajashekaraiah gifted the suit schedule property during his 14 OS.No.4535/2007 life time to the plaintiff under Ex.P1. Therefore defendant No.3 to 9 had no right and title to alienate the suit schedule property in favour of defendant No.1 & 2. Therefore Ex.P3 do not confirm any right and title to the defendants 1 & 2. Thus any alienation made by defendants 1 & 2 in favour of 3rd parties do not binds the plaintiff. Looking to the oral evidence of PW1 together with Ex.P1 & P2 proves the plaintiff's title over suit schedule property. As per the plaint averments plaintiff lost possession during the pendency of this suit.
14. Therefore inview of foregoing reasons and circumstances, it is held that the plaintiff proved his title over the suit schedule property by virtue of gift deed dtd.27.11.1980. The plaintiff lost possession during the pendency of this suit. Thus the plaintiff is entitled for recovery of possession from the defendants 1 to 9. Thus the plaintiff is entitled for a decree of declaration and possession as prayed. Hence I answered above issues accordingly and proceed to pass the following:
ORDER The suit filed by the plaintiff is decreed. It is declared that the plaintiff is the absolute owner of suit schedule property by virtue of gift deed dtd.27.11.1980. The defendants 1 to 9 are hereby directed to hand over possession of the suit schedule property to the plaintiff forthwith. Failing which the 15 OS.No.4535/2007 plaintiff can take possession of the suit schedule property as per law.
Under the circumstances no order as to costs.
Draw decree accordingly.
[Dictated to the Judgment Writer on computer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 24th November 2015].
(K. AMARANARAYANA) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE A N N E X U R E S:
No. of witnesses examined on behalf of the plaintiff:
PW1 ; K.R.Ashok Kumar.
No. of documents marked on behalf of plaintiff/s:
Ex.P1 : Certified copy of gift deed.
Ex.P2 : Certified copy of GPA
Ex.P3 : Certified copy of sale deed
Ex.P4 : Office copy of application filed by PW1
Ex.P5 & 6 : Encumbrance certificates
Ex.P7& 8 : Certified copy of sale deeds
Ex.P9 : Acknowledgement issued by BBMP
Ex.P10 : Endorsement issued by BBMP
Ex.P11 : Copy of application.
Ex.P12 : Copy of police complaint
Ex.P13 : Endorsement
Ex.P14 : Endorsement issued by BMP
16 OS.No.4535/2007
Ex.P15 : Copy of letter given by BMP
Ex.P16 to 19: Certified copy of written statement,memo
and order sheet in OS.No.11058/2003
Ex.P20 to 22: Certified copy of order sheet in OS.4952/03
Ex.P23 to 26: Receipt issued by Watchman
Ex.P27 : Receipt issued by contractor
Ex.P28 : Layout plan
Ex.P29 to 31: Acknowledgement issued by BMP
Ex.P32 to 36: Certified copies of sale deeds
Ex.P37 : Certified copy of judgment & decree passed in
OS.No.11058/2006.
Ex.P38 &39: Endorsements issued by BBMP
Ex.P40 & 41: Endorsements issued under RTI.
No. of witnesses examined on behalf of defendant/s:
- Nil -
No. of documents marked on behalf of defendant/s:
- Nil -
XVIII Addl. City Civil & Sessions Judge, Bangalore 17 OS.No.4535/2007 Judgment pronounced in the open court as per separate judgment. Operative portion of judgment is as follows:
ORDER The suit filed by the plaintiff is decreed. It is declared that the plaintiff is the absolute owner of suit schedule property by virtue of gift deed dtd.27.11.1980. The defendants 1 to 9 are hereby directed to hand over possession of the suit schedule property to the plaintiff forthwith. Failing which the plaintiff can take possession of the suit schedule property as per law.
Under the circumstances no order as to costs.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore