Bangalore District Court
J.Ramesh vs C.H.Haribabu on 22 April, 2016
IN THE COURT OF THE VII.ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH.No.19)
Dated: This the 22nd Day of April 2016
Present: Sri. V.K.Badiger, B.Com., LL.B.,(Spl.,)
VII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.995/2007
Plaintiff: J.Ramesh, S/o D.Jagadeshwar,
Aged about 33 years, Residing at
No.135, 3rd Cross, Jayanthinagar,
Horamavu Post, Bangalore - 560
043.
(By Sri.S.V.Venugopal, Advocate)
Vs.
Defendant: C.H.Haribabu, S/o C.H.Gandhi,
Aged about 28 years, R/at No.33,
2nd Block, Dasappa Layout,
Ramamurthynagar, Bangalore -
560 016.
(By Sri.V.S.K., Advocate)
Date of institution of suit 03.02.2007
Nature of the suit Permanent injunction
Date of commencement of 29.10.2009
recording of evidence
Date on which Judgment 22-04-2016
was pronounced
Total duration Days Months Years
19 02 09
2 O.S.No.995/2007
/ JUDGMENT /
This is a suit filed by the plaintiff against the
defendant for permanent injunction.
2. The plaintiff's case, in brief, is as follows:-
The plaintiff is the absolute owner in
possession and enjoyment of the residential site No.10
formed in property No.402, house list No.185/249/1
situated at Kalkere village, Bangalore East,
measurement east west 40' north south 30'.
3. Originally, the suit schedule property belongs
to one K.S.Shankarappa, S/o late Siddappa. The said
K.S.Shankarappa had executed registered general
power of attorney dated:22.8.1994 in favour of
R.Shanmugam, S/o late Ramachandrappa. The said
Shanmugam as the general power of attorney holder of
K.S.Shankarappa executed registered sale deed dated:
24.2.1996 in favour of S.Chandrashekar. The said
S.Chandrashekar as absolute owner of the property had
3 O.S.No.995/2007
executed a registered sale deed dated: 27.7.2006 in
favour of S.Narayanaswamy. S.Narayanaswamy in turn
executed registered sale deed dated: 11.9.2006 in
favour of plaintiff. So, the plaintiff derived valid right, title
and interest on the suit schedule property.
4. In the registered sale deed dated: 27.7.2006
executed by S.Chandrashekar in favour of
S.Narayanaswamy and in the registered sale deed
dated: 11.9.2006 executed by S.Narayanaswamy in
favour of the plaintiff instead of mentioning the property
number as 402 has been mentioned 439. The said
mistake crept in two sale deeds has been rectified by
executing rectification deeds dated: 30.11.2009 by
rectifying the property No.402.
5. From the date of sale deed, plaintiff is in
possession and enjoyment of the schedule property.
The khatha stands in the name of the plaintiff, he is
paying the tax since from the date of sale deed and he
is exercising all rights on the suit schedule property.
4 O.S.No.995/2007
6. The defendant has no right, title or interest
over the schedule property on 1.2.2007 attempted to
interfere over the schedule property and tried to
dispossess the plaintiff from the schedule property with
the help of his family members and neighbours resisted
the defendant. But, the defendant gave threat saying
that he will come once again with a large number of
supporters to dispossess the plaintiff. Defendant is
influential person, cause of action arose on 1.2.2007.
Hence, for all these reasons, it is prayed to decree the
suit.
7. In response to the suit summons, the
defendant appeared and filed written statement
contending that the suit is not maintainable. The
averments of para - 2 and 3 are incorrect and para - 4
of the plaint are specifically denied. Para - 5 of the
plaint are false and incorrect. The plaintiff is put to strict
proof of the same. There is no cause of action.
5 O.S.No.995/2007
8. The true facts of the case is that the plaintiff
alleges to be the owner of property site No.10 formed in
property No.439, khatha No.185/249/1 Kalkere,
Bangalore and measurement stated. Upon which
property this defendant has no interest, but, this
defendant is the sole and absolute owner in possession
and enjoyment of the property bearing site No.10
formed in property No.402, khatha 126/1 of the said
village measuring east west 40' north south 30'
boundaries east site No.9, west site No.11, north private
property, south road. The defendant purchased the said
property from Rathnamma, W/o late Shankarappa,
Puttaraju, Shivaraju, Nagaraju. Since, from the date of
purchase for valuable consideration, the defendant is in
peaceful possession and enjoyment of the said property,
khatha mutated in his name, tax paid, the right, title,
interest and possession is with the defendant.
9. The plaintiff is the owner of the suit schedule
property allegedly bearing No.10 which is formed in
6 O.S.No.995/2007
property No.439, khatha No.185/249/1, the property in
which the plaintiff is claiming totally different than the
property of the defendant, the property of this defendant
bears site No.10, property No.402, khatha No.126/1 of
Kalkere village. The property of plaintiff and defendant
are different and distinct and there is no relationship.
The plaintiff is attempting to claim the property of
defendant when actually the property of the plaintiff lies
elsewhere. This defendant does not know as to where
is the property of the plaintiff. The defendant is in
peaceful possession and enjoyment of the site No.10 of
the said survey number. The plaintiff is attempting to
squat on the property of defendant. Hence, for all these
reasons, it is prayed to dismiss the suit.
10. On the basis of the above pleadings of the
parties, the following issues have been framed:
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§zÀÞ ¸Áé¢üãÁ£ÀĨsª
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¥Àr¸ÀÄvÁÛ£ÉAiÉÄà ?
7 O.S.No.995/2007
2. zÁªÁ µÉqÀÆå¯ï D¹ÛAiÀÄ°è ¥ÀæwªÁ¢AiÀÄgÀÄ ªÁ¢AiÀÄ ±ÀÁAwAiÀÄÄvÀ
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À PÀ ÉÌ CrØ ¥Àr¹zÁÝgÉAzÀÄ ªÁ¢AiÀÄÄ
gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛ£ÉAiÉÄÃ?
3. AiÀiÁªÀ wÃ¥ÀÅð , AiÀiÁªÀ rQæ ?
11. In support of the case of the plaintiff, the
plaintiff is examined as PW.1 and one witness is
examined as P.W.2 and got documents marked at
Exs.P1 to P10. On the other hand, the defendant is
examined as D.W.1 and one witness is examined as
D.W.2 and documents and got marked documents at
Exs.D1 to D19(a).
12. Heard argument. Both Counsels have filed
written synopsis and plaintiff's Counsel relied on
decisions reported in AIR 1963 Orissa, page 136, AIR
1973 Mysore page 276, ILR 2003 Karnataka 3042. On
the other hand, the Learned Counsel for the defendant
relied on AIR 2008 SC 2033.
13. My findings on the above issues are as
under:-
Issue No.1 : In the negative
8 O.S.No.995/2007
Issue No.2 : In the negative
Issue No.3 : As per the final order
for the following:
REASONS
14. Issue No.1:- For this issue, the contention
of the plaintiff is that he is in lawful possession and
enjoyment of the schedule property as on the date of
suit. To substantiate this aspect, the oral evidence of
P.W.1 reveals that it is nothing but reiteration of the
plaint averments. The sum and substance is that since
from the date of sale deed he is in possession and
enjoyment of the schedule property. Khatha of the suit
schedule property standing in his name and tax is
paying and he has exercised all rights on the schedule
property. The property No.439 instead of 402 has been
rectified by his vendor by executing two registered
rectification deeds much less on 30.11.2009 and
15.2.2002. The plaintiff also relied on documents
much less original sale deed, absolute sale deed dated:
27.7.2006, sale deed dated:11.9.2006, demand register
9 O.S.No.995/2007
extract, original tax paid receipt, form No.15, deed of
rectifications, another sale deed, general power of
attorney at Exs.P1 to P10. During the course of cross-
examination, the P.W.1 stated that " £Á£ÀÄ F zÁªÉAiÀÄ£ÀÄß
ºÁQzÀÄÝ ¸ÀªÉð £ÀA. 402, ¸Éåmï £ÀA. 10PÉÌ EgÀÄvÀÛzÉ. £Á£ÀÄ zÁªÉ
ºÁQzÀÄÝ ¸Éåmï £ÀA. 10. ¥Áæ¥Ànð £ÀA. 439 C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî."
And also asked regarding measurement of the room
constructed by the plaintiff in the schedule property.
This witness has been suggested regarding the
rectification deeds and also suggested plaintiff is not in
possession of the schedule property, but, admitted that
before purchasing the schedule property he has not
made any enquiry as to in which survey number the
schedule property is situated and also admitted that
after filing the suit he has got changed the survey
number of the schedule property. Further, it is admitted
that except photos he has not produced any documents
to show his possession much less map of the schedule
property etc.
10 O.S.No.995/2007
15. Accordingly, P.W.2 who knows the plaintiff
has deposed that site No.10 carved out of survey
No.402 of Kalkere village, K.R.Puram Hobli, Bangalore
East Taluk belongs to the plaintiff. The plaintiff
constructed a small house and compound wall around
the site recently and plaintiff is in possession and
enjoyment of the schedule property. The plaintiff had
purchased the site from previous owner on 11.9.2006.
But, P.W.2 during the course of cross-examination
denied the suggestion that the defendant purchased site
No.10 much earlier to the plaintiff and this witness
denied the suggestion that only with an intention to help
the plaintiff he is giving false evidence.
17. On the other hand, the defendant is
examined as D.W.1 and reiterated the written statement
averments and relied on documents much less Exs.D1
to D19. The sum and substance is that he is in peaceful
possession and enjoyment of the site No.10. Earlier it
was coming under the Horamavu panchayath and he
11 O.S.No.995/2007
was paying tax, now it is fallen within the limits of
B.B.M.P., He has paid up to date tax and he has
constructed shed measuring 10 x 10' sq.ft. his
employees are residing, he has got constructed
compound wall. The property purchased by the plaintiff
is totally different from the property purchased by him.
The plaintiff is unlawfully trying to dispossess the
defendant forcefully. It is also deposed that he has
purchased the property from the wife and sons of late
K.S.Shankarappa, who was the owner of the property
and who in turn acquired the property from his
ancestors, on the other hand, the predecessors in
interest of the plaintiff have purchased the property
purchased by the plaintiff through the alleged general
power of attorney holder Sri.R.Shanmugam. Therefore,
the plaintiff has no manner of right, title and interest on
the property purchased by the defendant. Whereas,
D.W.1 during the course of cross-examination, it is
admitted that this suit has been filed for site No.10 in
12 O.S.No.995/2007
survey No.402 of Kalkere village and also admitted that
earlier the schedule property was belonging to
Shankarappa. After his death, the schedule property
has been purchased from the legal heirs of deceased
Shankarappa. This witness denied the suggestion that
at the time of purchase of the said property it was not
standing in the name of Rathnamma. This witness
denied the suggestion that the schedule site is
belonging to the plaintiff and he is never in possession
of the schedule property. Further, it has been
suggested that C.Chandrashekar executed registered
sale deed in favour of Narayanaswamy and
Narayanaswamy in turn sold the same to the plaintiff
under registered sale deed.
19. The defendant adduced evidence of one
witness who is examined as D.W.2. He has deposed
that his mother Rathnamma and her brother
K.S.Shivaraju, K.S.Nagaraju and herself sold site No.10
formed in survey No.402 Kalkere village, Horamavu
13 O.S.No.995/2007
post, Bangalore to the defendant under registered sale
deed dated: 5.4.2006. The said property belongs to his
father late K.S.Shankarappa. During his life time, his
father was in possession of the said property, after his
death, they were in possession of the schedule property
till it was sold to the defendant. Now, the defendant is in
possession of the property ever since the date of sale in
his favour and also deposed that they never sold
schedule property in favour of the plaintiff.
20. The Learned Counsel for the plaintiff argued
that the land survey No.402 of Kalkere village was
measuring to an extent of one acre was belonging to
Shankarappa, S/o Siddappa by virtue of IHR No.21/88-
89 the said K.S.Shankarappa formed lay out in survey
No.402. He has executed general power of attorney in
favour of one R.Shanmugam. The schedule property
bearing site No.10 carved out survey No.402 of Kalkere
village was sold by R.Shanmugam the general power of
attorney holder of Shankarappa in favour of
14 O.S.No.995/2007
C.Chandrashekar on 24.2.1996. The said
C.Chandrashekar after purchasing the site No.10 he has
executed registered sale deed in favour of
S.Narayanaswamy dated: 27.7.2006. The schedule
property has been purchased by the plaintiff from
S.Narayanaswamy, the registered sale deed dated:
11.9.2006. But instead of mentioning the property
number as 402 it has been mentioned as 439. The said
mistake crept in the two sale deeds has been rectified
by executing another two rectification deeds dated:
30.11.2009. Khatha was made in the name of the
plaintiff by the said panchayath Horamavu, paid tax, the
registered sale deed has been executed by
R.Shanmugam, the general power of attorney holder of
Shankarappa in favour of Smt.Bharathi in respect of site
No.9 towards eastern side of site No.10. The schedule
property is not vacant site it consists of one sq. A.C.
sheet roof house with compound wall and also argued
that the defendant had obtained a collusive sale deed
15 O.S.No.995/2007
from the legal heirs of late Shankarappa. Hence, it is
prayed to answer issue No.1 in the affirmative.
21. On the other hand, the Learned Counsel for
the defendant argued that suit was filed on 3.2.2007. At
the time of said suit, the schedule property was site
bearing No.10 formed in the property No.439 house list
khatha No.185/491 situated at Kalkere village,
Bangalore. The defendant appeared and filed written
statement contending that he is in possession of the site
bearing No.10 formed in property No.402 of Kalkere
village, Bangalore Taluk, having purchased from
Rathnamma and her sons under registered sale deed
dated: 5.4.2006. The plaintiff purchased his property on
11.9.2006 executed in his favour by one
Narayanaswamy, the plaintiff's vendor Narayanaswamy
purchased the said site from Chandrashekar, the
Chandrashekar purchased the said site from
Shankarappa through general power of attorney holder
16 O.S.No.995/2007
R.Shanmugam vide registered sale deed dated:
24.2.1996.
22. Further, it is argued that the plaintiff on
30.11.2009 surprisingly got a rectification deed executed
to rectify the property number as 402 in the place of
schedule No.439. Another rectification deed was
executed on 27.7.2006, thereafter, amendment
application was filed to incorporate site No.402 in place
of 439, the said application was allowed. Thereafter,
two rectification deeds were produced. It is an act done
by the plaintiff during the pendency of the suit which
affects the rights of the defendant. The mother deed ie.,
sale deed dated: 24.2.1996 produced at Ex.P1 is not
rectified. But, rectification made during the pendency of
the suit is untenable, plaintiff cannot claim any right, the
doctrine of lispendens applicable. The plaintiff is trying
to snatch the property of the defendant by getting the
property number changed to 402 from 439. The
schedule property is in possession of the defendant
17 O.S.No.995/2007
which is a vacant site with small shed in it. The plaintiff
ought to have filed comprehensive suit seeking for
declaration of his title. The defendant has produced
khatha issued by the B.B.M.P., tax paid receipts to show
his possession on the schedule property. Hence, for all
these reasons, it is prayed to answer issue No.1 in the
negative.
23. In the light of the arguments advanced
from both sides and having perusal of entire oral and
documentary evidence of both sides, the plaintiff come
up with case that originally the suit schedule property
belongs to K.S.Shankarappa, S/o Siddappa.
K.S.Shankarappa executed registered general power of
attorney in favour of R.Shanmugam, who executed a
registered sale deed dated: 24.2.1996 in favour of
C.Chandrashekar. The said C.Chandrashekar executed
registered sale deed in favour of S.Narayanaswamy.
S.Narayanaswamy executed in turn registered sale
deed on 11.9.2006 in favour of the plaintiff. The sale
18 O.S.No.995/2007
deeds dated: 27.7.2006 executed by C.Chandrashekar
in favour of S.Narayanaswamy and in the registered
sale deed dated: 11.9.2006 executed by
S.Narayanaswamy in favour of the plaintiff were
mentioned property number wrongly, for that reason two
sale deeds have been rectified by mentioning the
correct property number as 402 instead of 439. By
virtue of the sale deeds and rectification sale deeds the
plaintiff got mutated his name to the schedule property
and paying tax and became the owner of the schedule
property and he is in possession of the suit schedule
property. But, on perusal of the entire oral and
documentary evidence of plaintiff placed on record not
free from doubts and clouds, the cloud castes on the
title of the plaintiff. The very identity of the schedule
property is under dispute. The very title of the schedule
property is seriously disputed by defendant. The
version of P.W.2 not corroborates with the version of
P.W.1. The sale deed dated: 24.2.1996 is not rectified.
19 O.S.No.995/2007
The plaintiff and defendant both are claiming same
property. The sale deed of the plaintiff is dated:
11.9.2006, whereas, the defendant also claims title and
possession of the schedule property by virtue of the
registered sale deed dated: 5.4.2006. Looking to the
facts, circumstances and nature of the suit, the plaintiff
failed to prove his possession on the schedule property,
there is serious dispute of title. Under such
circumstances and on the foregoing reasons, this Court
come to the conclusion and answer issue No.1 in the
negative.
24. Issue No.2:- For this issue, the evidence
of P.W.1 reveals that the defendant having no right, title
interest on the schedule property on 1.2.2007 attempted
to interfere with the peaceful possession and enjoyment
of the plaintiff and tried to dispossess the plaintiff.
However, the plaintiff resisted the illegal acts of the
defendant. To substantiate these aspects except his
oral say nothing is on record to show that the
20 O.S.No.995/2007
defendants interfered with the possession of the plaintiff.
The plaintiff at least not filed any complaint to show on
that day the defendants interfered with the peaceful
possession of the plaintiff. More over, the plaintiff failed
to prove the lawful possession as on the date of suit on
the schedule property and there is a serious dispute of
title. In the absence of the satisfactory evidence with
regard to the interference this issue is answered in the
negative.
25. Issue No.3:- On the foregoing reasons, I
proceed to pass the following:
ORDER
The suit of the plaintiff is dismissed. No cost.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in open Court today the 22nd day of April 2016).
(V.K.Badiger) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY.
21 O.S.No.995/2007/ANNEXURE/ Witnesses examined on behalf of Plaintiff/s:
PW-1 : J.Ramesh P.W.2 : N.Muniraju
Witness examined on behalf of Defendants:
DW-1 : C.H.Haribabu D.W.2 : K.S.Puttaraju
Documents marked on behalf of Plaintiffs:
Ex.P1 : Original sale deed Ex.P2 : Absolute Sale deed dated:27.7.2006 Ex.P3 : Sale deed dated:11.9.2006 Ex.P4 : Demand register extract Ex.P5 : Original tax receipt Ex.P6 : Form No.15 Ex.P7 : Original registered deed of rectification Ex.P8 : Another deed of rectification Ex.P9 : Certified copy of deed of absolute sale Ex.P10 : Certified copy of registered GPA dated:22.8.1994.
Documents marked on behalf of Defendants:
Ex.D1 : Photo
Ex.D2 : Sale deed dated:5.4.2006
Ex.D3 : Demand register extract
Ex.D4 : Form B
22 O.S.No.995/2007
Ex.D5 : Panchayath tax paid receipt
Exs.D6 to D11 : 6 B.B.M.P., Tax paid receipts
Exs.D12 to D14 : 3 encumbrance certificates
Exs.D15 & 16 : 2 RTC extracts
Ex.D17 : Mutation extract
Exs.D18 & 19 : 2 Photos
Exs.D18(a) & : Negatives
19(a)
VII.ADDL.CITY CIVIL JUDGE (CCH.No.19) BANGALORE.23 O.S.No.995/2007
22.04.2016 P - S.V.V. D - V.S.K. (Judgment pronounced in the open Court (vide separate) and the order portion of the Judgment is as under:-
The suit of the plaintiff is dismissed. No cost.
Draw decree accordingly.
(V.K.Badiger) VII.ADDL.CITY CIVIL JUDGE.
BANGALORE CITY