Bangalore District Court
M.Raja Rao vs S.M.Muniraju on 26 April, 2019
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 26th day of April, 2019.
O.S.No.8735/2004
Plaintiff:- M.Raja Rao,
S/o.late Madhu Rao,
Hindu, aged 43 years,
R/at No.34, Bandiappa Garden,
II Main Road, Narayanappa building,
Yeshwanthapur, Bangalore - 22.
(By Adv. T.C.Sathishkumar)
v.
Defendant:- S.M.Muniraju,
S/o.S.M.Mallaiah,
Hindu, aged 34 years,
R/at No.213, RHCS Extension,
5th Cross, III Main Road,
Annapurneshwari Nagar,
Bangalore -91.
(By Adv. K.M.Madaiah)
Date of institution of the suit : 27.11.2004
Nature of the suit : Permanent Injunction
Date of commencement of : 17.09.2009
Recording of the evidence
Date on which the Judgment : 26.04.2019
was pronounced
Judgement
2 O.S.No.8735/2004
Total Duration : Years Months Days
14 04 29
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
JUDGEMENT
The plaintiff has filed the above suit for permanent injunction and costs.
2. The plaintiff's case in brief as under:-
The plaintiff is the absolute owner and in possession of the suit schedule property. The plaintiff had purchased the suit schedule property vide., registered Sale Deed dated 04.10.2004 from Smt.Christinal and Smt.Amruthamma through their GPA Holder i.e., Smt.Ramabai. The plaintiff was put in physical possession of the suit schedule property as per the said Sale Deed. Smt.Christinal and Smt.Amruthamma had executed GPA dated 11.11.1987 in favour of Smt.Ramabai and on the strength of said GPA, said Smt.Ramabai got khatha of the suit schedule property mutated in her name and paid taxes of the suit schedule property to Peenya Group Panchayath and also obtained electricity supply to the suit schedule property. Subsequently, the suit schedule property came within the limits of T.Dasarahalli City Municipal Council and khatha was mutated in the name of said Judgement 3 O.S.No.8735/2004 Smt.Ramabai and she was paying taxes of the suit property to the said CMC. The defendant without any title over the suit property, started interfering with plaintiff's possession and harassed the plaintiff and tried to extract money from the plaintiff. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, the defendant has appeared before the court through his counsel and filed the written statement before this court. In the written statement, the defendant has denied plaintiffs' title and possession over the suit schedule property and also the interference alleged in the plaint. The defendant has contended that he has purchased the suit schedule property vide., registered Sale Deed 14.06.2004 from Smt.Christinal and he is the absolute owner and in possession of the suit schedule property. The khatha of the suit property is mutated in the name of the defendant and paid taxes to Dasarahalli Municipal Council. The original owner namely, Smt.Christinal has not executed any GPA in favour of Smt.Ramabai and said GPA is a fabricated document. The plaintiff is the son of Smt.Ramabai and both of them have fabricated the said GPA in order to usurp defendant's property. The plaintiff is not the bonafide purchaser of the suit property and plaintiff is not in possession of the suit schedule property. There is no cause of Judgement 4 O.S.No.8735/2004 action to file the above suit. Hence, prayed that suit may be dismissed with costs.
4. During the pendency of the above suit, the disputed and admitted thumb impressions of Smt.Christinal and Smt.Amruthamma was referred to Truth Labs, Forensic Services, Bengaluru for examination of thumb impressions and Expert's Report is received by this court.
5. On the basis of above pleadings, below mentioned issues arise for consideration:-
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6. To prove the case of the plaintiff, plaintiff examined himself as PW-1 and got marked Ex.P1 and plaintiff's mother is examined as PW-2. The defendant examined himself as DW-1 and got marked Ex.D1 to D9 and examined one witness as DW-2.
Judgement 5 O.S.No.8735/2004
7. Heard arguments. The learned counsel for the defendant has relied upon the following citations:-
1. (2008) 4 Supreme Court Cases 594, in the case of Anthula Sudhakar v. P.Buchi Reddy (Dead) by LRs. and others.
2. (2008) 4 Supreme Court Cases 530, in the case of Thiruvengadam Pillai v.
Navaneethammal and another.
3. (2012) 1 Supreme Court Cases 656, in the case of Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana and another.
4. AIR 2014 Supreme Court 937, in the case of Union of India v. Vasavi Co-op.
Housing Society Ltd and others.
8. My findings on the above said issues are as follows:-
Issue No.1 :- In the Affirmative
Issue No.2 :- In the Affirmative.
Issue No.3 :- As per final order.
for the following:-
REASONS
9. Issue Nos.1 and 2:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
It is not in dispute that plaintiff is the son of Smt.Ramabai. PWs.1 and 2 in their evidence have stated that suit schedule Judgement 6 O.S.No.8735/2004 property originally belonged to Smt.Christinal and Smt.Amruthamma. Said Smt.Christinal and Smt.Amruthamma executed GPA dated 11.11.1987 in favour of Smt.Ramabai in respect of suit schedule property and had put Smt.Ramabai in possession of the suit property. Said GPA Holder got khatha of the suit schedule property mutated in her name in the records of the then Peenya Group Panchayath and paid taxes to the said Panchayath and thereafter, T.Dasarahalli CMC was constituted and khatha of the suit property was mutated in the name of Smt.Ramabai and she paid taxes of the suit property upto 2004. Based on the said GPA, Smt.Ramabai executed Sale Deed in respect of the suit schedule property in favour of plaintiff and had put the plaintiff in possession of the suit schedule property and plaintiff is in possession and enjoyment of the said property. Per contra, DWs.1 and 2 in their evidence have stated that Smt.Christinal and Smt.Amruthamma have not executed any GPA in favour of Smt.Ramabai and said GPA is a fabricated document and Smt.Christinal has sold suit schedule property in favour of the defendant and defendant is in possession of the suit schedule property. In order to the prove that Smt.Christinal and Smt.Amruthamma executed GPA and Affidavit both dated 11.11.1987 in favour of Smt.Ramabai, the plaintiff has produced said GPA and Affidavit both dated 11.11.1987 at Ex.P2 and P10.
Judgement 7 O.S.No.8735/2004 PWs.1 and 2 in their evidence have categorically stated that said GPA and Affidavit was executed by Smt.Christinal and Smt.Amruthamma and as per the Affidavit, Rs.14,000/- was paid as sale consideration amount to Smt.Christinal and Smt.Amruthamma and GPA Holder Smt.Ramabai was put in possession of the suit schedule property. DWs.1 and 2 have denied the execution GPA and Affidavit hence, this court had referred the disputed and admitted thumb impressions to the Expert and obtained Expert's Report. Advocate for defendant has filed objections to the said Expert's Report but, failed to take steps to cross-examine the Expert. Therefore, objection filed by the defendant to the Expert's Report is set aside. This court can rely upon Expert's Report. As per Expert's Report, the disputed left thumb impressions marked as D5, D6 and D7 against the name said to be of Christinal are identical with the admitted left thumb impressions marked as A1, A3, A4 to A9, A11 to A16 against the name Christinal and the disputed left thumb impressions marked as Q1 to Q7 against the name Amruthamma are identical with the admitted left thumb impressions marked as B2 against the name Amruthamma. From the Expert's Report, it clearly demonstrates that GPA and Affidavit are executed by Smt.Christinal and Smt.Amruthamma in favour of Smt.Ramabai. Therefore, this court can rely upon said GPA and Affidavit. From Judgement 8 O.S.No.8735/2004 the said GPA and Affidavit, it reveals that in the year 1987 itself Smt.Christinal and Smt.Amruthamma have alienated the suit schedule property for valuable consideration in favour of Smt.Ramabai and executed GPA and Affidavit i.e., Ex.P2 and P10 and had put Smt.Ramabai in possession of the suit schedule property and authorized Smt.Ramabai to manage and alienate the suit schedule property on their behalf. The plaintiff has also produced khatha issued by Secretary, Peenya Panchayath standing in the name of Smt.Ramabai at Ex.P3, taxes paid by Smt.Ramabai at Ex.P4, No Objection Certificate issued by K.E.B. at Ex.P5 and tax paid receipts at Ex.P6 to P9. From Ex.P3 to P9, it reveals that subsequent to execution of GPA in favour of Smt.Ramabai, Smt.Ramabai got khatha mutated in her name and paying taxes to the concerned authority upto 2004. From Ex.P5, it reveals that Smt.Ramabai has obtained electricity supply to the suit schedule property in the year 1988 itself. From the said document, it clearly goes to show that Smt.Ramabai was put in possession of the suit schedule property. It is pertinent to note that, Smt.Christinal and Smt.Amruthamma have not produced any document before this court to show that they have cancelled GPA executed in favour of Smt.Ramabai. Ex.P2 i.e., GPA executed in favour of Smt.Ramabai is a irrevocable GPA and coupled with interest and said GPA is still in force. Based on the Judgement 9 O.S.No.8735/2004 said GPA, Smt.Ramabai has alienated the suit schedule property in favour of the plaintiff and executed registered Sale Deed i.e., Ex.P1 and plaintiff is put in possession of the suit schedule property. The plaintiff has produced sufficient material evidence to prove his possession over the suit schedule property. The defendant has contended that he has purchased the suit schedule property and he is in possession of the suit schedule property. In support of said contention, the defendant has produced Sale Deed dated 14.06.2004, Rectification Deed dated 22.07.2004, Encumbrance Certificate and tax paid receipts at Ex.D1 to D9. Admittedly, defendant is claiming title and possession through his vendor namely, Smt.Christinal. It is pertinent to note that, said Smt.Christinal and Smt.Amruthamma in the year 1987 itself have alienated the suit schedule property for valuable consideration and executed GPA and Affidavit in favour of Smt.Ramabai. In the year 1987 itself defendant's vendor namely, Smt.Christinal and Smt.Amruthamma have put Smt.Ramabai in possession of the suit schedule property. Therefore, contention of the defendant that his vendor namely, Smt.Christinal has delivered possession of the suit property in the year 2004 under the Sale Deed to him cannot be accepted. The tax paid receipts produced by the defendant have come into existence just prior to filing of the above suit and some of the tax paid receipts has come into Judgement 10 O.S.No.8735/2004 existence during the pendency of the suit. Therefore, said tax paid receipts produced by the defendant cannot be accepted. The defendant has not examined any independent witnesses to prove his possession over the suit schedule property. Therefore, contention of the defendant that he is in possession of the suit schedule property cannot be accepted. PW-1 in his evidence has categorically stated that defendant interfered with his possession. It is pertinent to note that, the defendant in his written statement has denied plaintiff's title and possession over the suit schedule property. Mere denial of plaintiff's title and possession by the defendant amounts to interference. Advocate for the defendant argued that the defendant has denied plaintiff's title and asserts title over the suit schedule property therefore, bare suit for injunction is not maintainable.
10. In (2008) 4 Supreme Court Cases 594, in the case of Anathula Sudhakar v. P.Buchi Reddy (Dead) by LRS. and others, the Hon'ble Supreme Court has held that:-
(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful Judgement 11 O.S.No.8735/2004 possession or threat of dispossession it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue.
The prayer for injunction will be decided with reference to the finding on possession. But in case where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
Judgement 12 O.S.No.8735/2004
(d) Where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
In the present case, the defendant has denied plaintiff's title and asserts title over the suit schedule property on the strength of Sale Deed dated 14.06.2004. Therefore, plaintiff's title is under a cloud and plaintiff ought to have sought for declaration. In the present case, the plaintiff has not sought the relief of declaration therefore, suit for bare injunction is not maintainable. Hence, plaintiff is not entitle for any relief. The citations relied upon by the learned counsel for the defendant i.e., (2008) 4 Supreme Court Cases 530, (2012) 1 Supreme Court Cases 656 and Judgement 13 O.S.No.8735/2004 AIR 2014 Supreme Court 937 are not applicable to the facts and circumstances of the present case. In the light of the above discussion, I answer Issue Nos.1 and 2 in the Affirmative.
11. Issue No.3:-
In view of my above discussion, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 26th day of April, 2019) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.M.Raja Rao PW.2 - Smt.Ramabai
(b) Defendant's side:
DW.1 - Sri.S.M.Muniraju DW.2 - Smt.Christinal Judgement 14 O.S.No.8735/2004 II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Original Registered Sale Deed
dated 04.10.2004
Ex.P1(a) : LTM of Smt.Ramabai
Ex.P1(b) : Signature of PW-1
Ex.P2 : Original General Power of Attorney
Ex.P3 : Demand Register Extract
Ex.P4 : Kandayam Receipt
Ex.P5 : No Objection Certificate
Ex.P6 : Assessment Register Extract
Ex.P7 to 9 : Kandayam Receipts
Ex.P10 : Affidavit
(a) Defendants' side:
Ex.D1 : Record of Rights
Ex.D2 : Original Sale Deed dated
14.06.2004
Ex.D3 : Original Rectification Deed dated
22.07.2004
Ex.D4 : Form No.15
Ex.D5 : Assessment Register Extract
Ex.D6 to 9 : Tax Paid Receipts
XLII ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
Digitally signed by
SRINIVASA
DN:
cn=SRINIVASA,ou=
HIGH COURT OF
SRINIVASA KARNATAKA,o=GOV
ERNMENT OF
KARNATAKA,st=Kar
nataka,c=IN
Date: 2019.04.29
15:27:53 IST
Judgement