Bangalore District Court
Poornaprajna House Building vs Mr.M. Nagaraj on 12 December, 2017
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-26).
Dated this the 12th day of December, 2017.
Present
Sri MARUTHI S. BAGADE, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.2390/2012
Plaintiff: Poornaprajna House Building
Co-operative Society Ltd.
Having its Office situated at
No.390, 9th Main Road
Sri Kumaraswamy Temple Road
Hanumanthanagar
Bengaluru-560 019
Represented by its Secretary/
Manager, Nanjappa s/o
N.Lakshmaiah.
(By Sri B.N. Prakash, Adv.)
Vs.
Defendant: Mr.M. Nagaraj
s/o Late Muniramappa
# 33/115/1, Behind
Poornaprajna Layout
Kathariguppe
Banashankari III Stage
3rd Phase, Bengaluru-85.
(By Sri T.V. Harinarayana, Adv.)
Date of institution of the suit 31.03.2012
Nature of the suit For permanent
injunction
Date of the commencement 04.12.2013
of recording of evidence
2 O.S.No.2390/2012
Date on which the judgment 12.12.2017
Pronounced
Total duration Years Months Days
05 08 12
JUDGMENT
This suit is filed by plaintiff-Society for permanent injunction restraining the defendant, his agent or servant or anybody claiming through him from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property in any manner.
2. The brief facts of the plaintiff's case are as under:-
That the plaintiff, being a House Building Co- operative Society constituted and registered under the provisions of Karnataka Co-operative Societies Act, has acquired land bearing Sy.No.115/1 measuring 1 acre situated at Kathriguppa Village, Uttarahalli Hobli, Bengaluru South Taluk under sale deed dated 31.03.1969 from its previous owners. Thereafter the land was converted on 22.07.1969 for non-agricultural purposes. The plaintiff- Society has obtained permission from the concerned authority for formation of residential layout.3 O.S.No.2390/2012
Further case of the plaintiff- Society is that site No.122 & 123 are carved out in the layout. On the eastern side of site No.122,123 & 124, there was an excess land till boundary of the land bearing Sy.No.115/1 measuring 90+91.5/2' x 47.3+4/2 feet (i.e., marginal land), which is suit schedule property. The suit schedule property was allotted to the purchaser of site No.122, which is adjacent to site Nos.123 & 124. The marginal land situated adjacent to site No.123 & 124 remained as it is. The marginal land is reserved for future development and not allotted to the adjacent site owners.
This being so, the defendant, claiming to be the owner of land adjacent to the layout, is trying to encroach upon the marginal land. In this regard, plaintiff- Society has filed O.S.No.1864/1988 against the defendant. Thereafter by keeping quiet for some time again on 02.09.2011 the defendant made an attempt. The plaintiff- Society again issued legal notice on 10.10.2011 in this behalf, which was replied by defendant on 15.10.2011. Thereafter very oftenly defendant tried to make an encroachment of the suit 4 O.S.No.2390/2012 schedule property and to dispossess the plaintiff- Society. Left with no alternative, the plaintiff- Society has been constrained to file this suit.
3. After service of summons, defendant appeared through the counsel and filed written statement, denying the case of the plaintiff- Society in toto and contended that an extent of 2 acres 15 guntas of land exists in land bearing Sy.No.115/1; out of which, defendant's father sold 1 acre to Narasappa and Muniswamappa and another 1 acre to Mariyappa through registered sale deeds dated 04.07.1963 and 16.01.1963; after selling 2 acres, 15 guntas is existing in the name of father of defendant, who is in possession and enjoyment of the same as owner; after his death, defendant and his family members are in possession and enjoyment of the same as absolute owners; the plaintiff-Society has illegally trespassed into the property of the defendant and created sham documents in collusion with third parties; plaintiff- Society sold excess land in site No.122, 122-A & 122-B to an extent of 5 ¼ guntas of land in Sy.No.115/1; site No.122-A & 122-B are existing in remaining land of defendant; plaintiff- Society has no 5 O.S.No.2390/2012 manner of right, title and interest over it; hence suit of the plaintiff- Society is liable to be dismissed.
4. On the basis of the above pleadings of parties, my predecessor in the office has framed following issues:-
1) Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of suit?
2) Whether the plaintiff proves the alleged interference?
3) Whether the plaintiff is entitled for the relief claimed?
4) What decree or order?
5. In order to establish the case, Secretary of the plaintiff examined as P.W.1 and got the documents marked as per Ex.P.1 to Ex.P.14. Thereafter defendant examined himself as D.W.1 and got the documents marked as per Ex.D.1 to Ex.D.10.
6. Heard arguments. Perused the oral and documentary evidence on record and written argument submitted by defendant's counsel.
7. My findings on the above issues are as follows:-
1) In the affirmative;6 O.S.No.2390/2012
2) In the affirmative;
3) In the affirmative;
4) As per final order, for the following:-
REASONS
8. ISSUE No.1:- During the course of argument, learned plaintiff's counsel has contended that the plaintiff is a Co-operative Housing Society; it had purchased 1 acre of land in Sy.No.115/1 through sale deed dated 31.03.1969 from its previous owner for the purpose of formation of residential layout along with other lands purchased by the Society abutting to the said land; a layout plan was approved by CITB; more than 100 sites were formed in the layout; among them site No.122, 123 & 124 were having some marginal excess land abutting to the sites; after this marginal land remaining land in Sy.No.115/1 is situated; plaintiff- Society retained the marginal land for future development.
9. It was further contended that marginal land available adjacent to the site bearing No.122 was subsequently allotted to its purchaser; however marginal land attached to site No.122 & 123 remained as it is and reserved for future development; therefore it is evident 7 O.S.No.2390/2012 that the marginal land, which is a suit property is in possession and enjoyment of the plaintiff- Society; inspite of that defendant is taking false contention that it is in his possession; in fact in the notices issued by the defendant it has been clearly stated that the plaintiff- Society has encroached upon the suit schedule property, which is part and parcel of remaining 15 guntas of land; the very admission given by the defendant in the notices and written statement clearly establish that the suit schedule property is in possession of the plaintiff- Society.
10. On the other hand, contention of the learned defence counsel is that the land bearing Sy.No.115/1 was totally measuring 2 acres 15 guntas; out of which father of the defendant has sold 1 acre of land to Narasappa and Muniswamappa and another 1 acre of land was sold to plaintiff- Society in the year 1969 and thereafter retained 15 guntas of land by the father of the defendant in his possession and enjoyment and still it is in possession and enjoyment of the defendant's family; the plaintiff- Society has got created bogus layout plan showing the marginal land abutting site No.122, 123 & 8 O.S.No.2390/2012 124; plaintiff- Society has falsely created site No.122-A & 122-B and allotted to adjacent owners only in order to dupe 15 guntas of land of defendant; in fact plaintiff- Society has sold excess 5 ¼ guntas of land in Sy.No.115/1 i.e. to say in 15 guntas of land; whatever the marginal land shown by the plaintiff- Society is part and parcel of 15 guntas of land, which is in possession and enjoyment of defendant; therefore plaintiff's contention that suit schedule property is in possession and enjoyment of the plaintiff- Society is totally false one.
11. I have carefully examined the facts and circumstances of the case, oral and documentary evidence on record. Since it is a civil case, we have to give more importance to documentary evidence than oral evidence. What is important in a suit for injunction is proof of possession of the suit schedule property as well as the identity. Since there is no any strong dispute regarding identity of the property, it is not necessary to go into deep discussion of the identity of the property.
12. It is undisputed fact that in land bearing Sy.No.115/1, defendant's father sold 1 acre of land to 9 O.S.No.2390/2012 the plaintiff- Society and another 1 acre of land to other persons. We are not concerned about the sale of 1 acre of land to other persons. We are concerned about 1 acre of land purchased by the plaintiff- Society. Ex.P.1 is a defendant, which was executed by the father of the defendant in favour of plaintiff- Society in connection with sale of 1 acre of land. This sale deed clearly demonstrates the boundaries of 1 acre of land sold to plaintiff- Society. Therefore it is the defendant who has to show that the layout plan created by the plaintiff- Society as per Ex.P.2 or Ex.P.14 is exceeding the boundary limits mentioned in the sale deed. Defendant not produced any evidence to show that the plaintiff has crossed the boundary limits. On perusal of layout plan marked at Ex.P.2 & Ex.P.14, it is obvious that some corner portion have been reserved for future development and the corner portion comes within the last boundary of the land, after this remaining portion of land in Sy.No.115/1 comes, therefore it is obvious that defendant has to place some reliable evidence to discredit the evidence placed by the plaintiff- Society. 10 O.S.No.2390/2012
13. Here the specific contention of the defendant is that land bearing Sy.No.115/1 was measuring 2 acre 15 guntas, out of which 1 acre was sold to plaintiff- Society and another 1 acre of land was sold to other persons and thereafter 15 guntas of land was retained by the defendant's father. If that being the case, nothing prevented the defendant to produce record of right to show retention of 15 guntas of land by defendant's father. Ex.D.10- record of right produced by the defendant shows in all 4 acres 15 guntas of land in Sy.No.115/1. Out of which 6 guntas of land was shown as kharab land, thereafter 4 acres 9 guntas of land was shown to be fit for agriculture purpose. Out of this land, 2 acres of land was fallen to the share of Thangavelu and another 2 acres of land was given to Muniramaiah i.e., father of defendant. In the 4 acres 9 guntas of land, 4 acres was sold out, thereafter only 9 guntas of land must remain in possession but question arises in whose possession it is. Not a piece of paper has been produced by the defendant to show that in whose possession this 9 guntas of land is situated. No record of right has been produced by the defendant to show out of 2 acres 15 11 O.S.No.2390/2012 guntas of land, father of defendant sold only 2 acres of land and retained 15 guntas of land in his name. If that was the fact, after effecting the mutations of sold out land, 15 guntas of land would have been continued in the name of defendant's father, if not, at least in the name of defendant, but no such continuation is seen in the revenue records. Therefore it is obvious that the plaintiff- Society's marginal land is part and parcel of 1 acre of land purchased by it. When marginal land was shown to be part and parcel of layout plan as per Ex.P.2 & Ex.P.14, then obviously it is in possession of plaintiff- Society. That apart the defendant in his notice/reply notice marked at Ex.P.7 has clearly stated that plaintiff- Society has made encroachment upon his land. If this admission taken into consideration coupled with plaintiff's documentary evidence produced in the case, I have no other go except to hold that plaintiff- Society is in possession and enjoyment of the suit schedule property.
14. It is true that plaintiff- Society in its notice has contended that the defendant made an encroachment upon property of the plaintiff- Society and in order to prevent continuation of interference, a suit bearing 12 O.S.No.2390/2012 O.S.No.1864/1998 was filed and it was not continued as the defendant stopped the interference. This fact has been clearly denied by the defendant. When defendant contended that he not encroached upon the suit property, then on the basis of a sentence narrated by the plaintiff in the notice that defendant had dumped materials on the suit schedule property, the suit schedule property cannot be presumed to be in possession of the defendant. Dumping waste materials or garbage on any property may amount to an interference, but not taking of physical possession. Therefore I see no any force in the defendant's contention that the plaintiff is out of possession of suit schedule property and therefore not entitled for permanent injunction.
15. It is in this back ground, I am of the opinion that the suit schedule property is found in possession and enjoyment of the plaintiff- Society from the date of purchase of 1 acre of land and even to this date. If at all the defendant's property has been really encroached upon by the plaintiff- Society, then in view of the admission that it is in possession of plaintiff- Society, defendant has to seek the possession of the property, 13 O.S.No.2390/2012 but till then defendant cannot interfere in the possession and enjoyment of the plaintiff- Society over the suit schedule property. Hence, issue No.1 under discussion is answered in affirmative.
16. ISSUE No.2 & 3:- As these issues are interlinked to each other, they are taken up together for discussion to avoid repetition.
17. In view of affirmative finding on issue No.1 and looking into the nature of dispute raised by the defendant as well as earlier litigations, it is obvious that there is interference by the defendant in possession of plaintiff- Society and also apprehension of interference, since the plaintiff- Society has proved its possession over the suit schedule property as well as illegal interference caused by the defendant, therefore plaintiff- Society is entitled for perpetual injunction. Accordingly, issue No.2 & 3 under discussion are answered in affirmative.
18. ISSUE No.4:- In view of my findings on above issues, I proceed to pass the following:-
ORDER Suit of the plaintiff- Society is decreed as under:-14 O.S.No.2390/2012
The defendant, his agent or servant or anybody claiming through him are hereby permanently restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property in any manner.
No costs awarded.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him on Computer, printout taken, corrected and then pronounced in the Open Court on this the 12th day of December, 2017).
(MARUTHI S. BAGADE) X Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : L. Nanjappa List of documents exhibited for plaintiff:
Ex.P1 : Certified copy of sale deed dt:31.03.1969 Ex.P2 : Layout plan Ex.P3 : Conversion sanction certificate Ex.P4 : Copy of resolution dt:31.01.2012 Ex.P5 : Letter dt:10.10.2011 written by M. Nagaraj Ex.P6 : Postal acknowledgement Ex.P7 : Notice dt:15.10.2011 issued by defendant 15 O.S.No.2390/2012 Ex.P8 : Postal cover Ex.P9 : Reply dt:10.11.2011 Ex.P10: Postal receipt Ex.P11: Notice issued by defendant Ex.P12: Postal cover Ex.P13: Authorisation letter Ex.P14: Rough sketch List of witnesses examined for defendant:
D.W.1 : M. Nagaraj List of documents exhibited for defendant: Ex.D1: Certified copy of sale deed dt:4.1.1963 Ex.D2: Certified copy of sale deed dt:16.1.1963 Ex.D3: Certified copy of sale deed dt:16.1.1963 Ex.D4: Certified copy of sale deed dt:10.11.1982 Ex.D5: Certified copy of sale deed dt:22.1.2000 Ex.D6: Letter dt:10.10.2011 issued by plaintiff Ex.D7: Information dt:14.2.2013 issued by BDA Ex.D8: Reply notice dt:10.11.2011 Ex.D9: Copy of notice dt:15.10.2011 Ex.D10: Pahani of Sy.No.151/1 X Addl. City Civil & Sessions Judge, Bangalore.