Bangalore District Court
Sri.P.K.Sathyapal @ Sathyavirathan vs Smt.Munithayamma on 23 January, 2018
IN THE COURT OF THE V ADDL. CITY CIVIL JUDGE,
AT BANGALORE CITY.
(CCH-13)
DATED THIS THE 23rd DAY OF JANUARY, 2018
PRESENT
Smt.Nagaveni, B.A.,LL.B.
V ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE
O.S.NO.1287/2014
PLAINTIFF: Sri.P.K.Sathyapal @ Sathyavirathan
S/o Late Kochukrishnan
Aged about 64 years, r/at
No.512, 3rd cross,
9th main, HAL II Stage,
Indiranagar,
Bangalore-560 038.
(By Sri.M.A.Sebastian, Advocate)
/VS/
DEFENDANTS: 1. Smt.Munithayamma
W/o Late Thimmarayappa
Aged about 69 years,
2. Sri.T.Lakshmipathi
S/o Late Thimmarayappa
Aged about 45 years,
3. Sri.Mohan Raj
S/o Late Thimmarayappa
Aged about 41 years,
All are residing at
Sadaramangala village,
Kadugodi Post,
Bangalore-560 067.
(By Sri.N.R.N., Advocate)
2 O.S.No.1287/2014
Date of Institution of the 14-02-2014
suit
Nature of the suit (suit on Injunction
pronote, : suit for declaration
and possession ,suit for
injunction, etc.)
Date of Commencement of 27-09-2016
recording of evidence
Date on which judgment was 23-01-2018
Pronounced
Duration Years Months Days
03 11 09
( NAGAVENI )
V ADDL.CITY CIVIL JUDGE
BANGALORE
*****
JUDGMENT
The plaintiff has filed the suit for permanent injunction and such other reliefs in respect of the suit schedule properties.
.2. The brief facts of the plaint averments are as under:
The description of the suit schedule properties is as under :
SCHEDULE A PROPERTY 3 O.S.No.1287/2014 All that piece and parcel of the northern portion of residential site No.B-24(B-24/1) carved out of converted Sy.No.51, duly converted for residential purposes by order of the Deputy Commissioner, Bangalore District, Bangalore vide official memorandum No.B.Dis.ALN (E)/SR/36/2004-05 dated 04/06/2004 situated at Sadaramangala village, Sadaramangala Kodigehalli road, Krishnarajapura Hobli, Bangalore East Taluk in the layout known as 'Anugraha Township', now comes under the jurisdiction of Bruhath Bangalore Mahanagara Palike, earlier under Mahadevapura CMC, Bangalore, measuring East to West : 40 ft., North to South: 30ft measuring in all 1200 sq.ft. and bounded on the:
East by : 30 ft. road West by : Site No.B-37 North by : 30 ft. road
South by : Remaining portion of the property(B-24/2) With duplex house constructed therein.
SCHEDULE B-PROPERTY All that piece and parcel of the southern portion of residential site No.B-24(B-24/2) carved out of converted Sy.No.51, duly converted for residential purposes by order of the Deputy Commissioner, Bangalore District, Bangalore vide official 4 O.S.No.1287/2014 memorandum No.B.Dis.ALN(E)/SR/36/2004-05 dated 04/06/2004 situated at Sadaramangala village, Sadaramangala Kodigehalli road, Krishnarajapura Hobli, Bangalore East Taluk, in the layout known as 'Anugraha Township', now comes under the jurisdiction of Bruhath Bangalore Mahanagara Palike, earlier under Mahadevapura CMC, Bangalore, measuring East to West : 40 ft., North to South : 30 ft., measuring in all 1200 sq.ft. and bounded on the:
East by : 30 ft. road West by : site No.B-37
North by : Remaining portion of the property(B-24/1) South by : site No.B-23 With the duplex house constructed therein.
One Late Thimmarayappa was the owner of land in Sy.No.51 of Sadramangala village measuring 7 acres 20 guntas including 21 guntas kharab land having acquired the same under a registered sale deed dated 09/05/1960. Sri.Thimmarayappa died intestate on 17/07/1979 leaving behind his two wives Gidamma and Munithayamma and their children to succeed to his estate. In the branch of Gidamma, 5 O.S.No.1287/2014 Thimmarayappa has two daughters, Venkatamma and in the branch of Munithimakka and Smt.Munithayamma had five children i.e., T.Lakshmipathy, T.Mohanraj, T.Kamakshi, T.Thara, T.Gayathri and T.Gagendra. Subsequent to the death of Late Thimmarayappa, the property devolved upon his two wives by names Smt.Munithayamma and Smt.Giddamma and their children. After the death of Thimmarayappa, the khatha was initially mutated in the joint name of two wives in MR No.1/92-92.
Thereafter, the land in Sy.No.51 was divided between the branches of his two wives under an oral partition and the land was mutated as per mutation order MR No.1/94-95 and MR No.2/95-96 and their respective branches acquired 3 acres and 19 ½ guntas of land each. After the death of first wife Smt.Giddamma, she was survived by her daughters Smt.Venkatamma and Smt.Munithimmakka and accordingly 3 acres 19 ½ guntas of land fallen to the share of the branch of 6 O.S.No.1287/2014 Giddamma was mutated in their name. Subsequenty, legal heirs of late Giddamma, Smt.Venkatamma and Smt.Munithimmakka and their children and the surviving wife of Thimmarayappa, Smt.Munithayamma and her children, who are the defendant entered into a registered Partition Deed dated 09/01/2004 dividing the land in Sy.No.51 of Sadramangala village by metes and bounds as per the previous oral partition. The property fallen to the share of Smt.Munithayamma and her children, the defendant described as schedule A to the Partition Deed and schedule B to the Partition Deed was allotted to the branch of Late Giddamma. The plaintiff has got title deeds and possession of the schedule property verified through his advocate and thereafter having satisfied has decided to purchase the respective portions of land allotted to the branch of Smt.Venkatamma and Smt.Munithimmakka and their children. Subsequent to the registered partition of the schedule properties,Smt.Munithayamma and her 7 O.S.No.1287/2014 children i.e., the defendants alongwith others have sold the schedule A property to the Partition Deed in favour of Sri.Gowtham, under a sale deed dated 09/01/2004 for a valuable consideration and put him in the possession of the property. Smt.Venkatamma and Smt.Munithimmakka and their children sold the schedule B property to the Partition Deed fallen in their share under a registered sale deed dated 09/01/2004 in favour of the plaintiff for a valuable consideration and put him in possession of the property. The possession of the entire extent of land in Sy.No.51 is delivered to the plaintiff and Sri.Gowtham alongwith all the original documents and since then the plaintiff and Sri.Gowtham are in possession and enjoyment of the lands. Subsequent to the purchase of the property, Sri.Gowtham and plaintiff got the revenue records of respective land in their favour in MR No.22/2003-04 and MR No.26/2003-04. The plaintiff alongwith Sri.Gowtham being the owners in 8 O.S.No.1287/2014 possession of the composite property have jointly applied for the conversion of 6 acres of land for non- agricultural residential purpose and Special Dy.Commssioner vide official memorandum No.B.Dis.ALN(E)/SR/36/2004-05 dated 04/06/2004 has granted the conversion order on payment of the requisite conversion charges. Plaintiff aongwith Gowtham have developed the entire land in Sy.No.51 into a residential layout alongwith the adjoining land in Sy.No.47 in the name and style of 'Anugraha Township' as per the plan approved by CMC Mahadevapura, put up all around compound wall with one entry gate and provided with facilities like roads, underground sanitary lines, water connections with overhead tanks for the entire layout, power supply lines for entire layout with transformers, leaving areas for amenities and other facilities with security being provided round the clock. The schedule property had been developed into residential layout since the year 9 O.S.No.1287/2014 2005 and plaintiff Nos.1 and 2 have sold most of the sites formed therein to different purchasers and the purchasers alongwith plaintiffs are in peaceful possession and enjoyment of the composite property. The land in Sy.No.51 had been developed into residential layout since the year 2005 with all amenities. The third defendant Sri.Mohan Raj who was a party to the registered Partition Deed dated 01/09/2004, filed O.S.No.2484/2007 before the 2nd Addl.Civil Judge (Sr.Dn), Bangalore Rural District for reliefs of partition and separate possession of land in Sy.No./51 measuring 7 acres 20 guntas against the plaintiff and his vendors who are the party to the registered Partition Deed with an intention to harass plaintiff and failed in his attempt in securing any favourable interim order. Ultimately the Hon'ble Court vide order dated 12/07/2012 directed the office to return the plaint to defendant No.3 to be presented before the proper Court. The land in Sy.No.51 after 10 O.S.No.1287/2014 developing into residential layout, most of the sites formed therein are sold to different purchasers who are in peaceful possession and enjoyment of the same alongwith plaintiff's and many houses are already constructed in the layout. Site owners is a society registered the Karnataka Societies Registration Act vide Registration No.SOR/BLU/DR/41/2008-09 dated 30/06/2009 formed to look after the welfare of the plot owners in the layout known as 'Anugraha Township' and also to protect the interests of the site owners. The sites formed therein were earlier coming under the jurisdiction of Mahadevapura CMC, registered with the CMC khatha and from 2007 the area is brought under the Bruhath Bangalore Mahanagara Palike, who are now receiving the tax on the property, being the jurisdictional authority. Further contends that converted site bearing No.B-24 measuring 2400 sq.ft. formed in the land belonging to Sri.Goutham in 'Anugraha Township' was sold to Mr.N.Sudhakaran 11 O.S.No.1287/2014 S/o Mr.N.Narayanan under a registered sale deed dated 07/02/2005. The Bruhath Bangalore Mahanagara Palike khatha of the property in form N.B plaintiff register is registered in the name of Mr.N.Sudhakaran and was paying the tax on the property. Mr.N.Sudhakaran S/o Mr.N.Narayana being the absolute owner in possession of converted site bearing No.B-24 has sold said site No.B-24 to the plaintiff under two registered sale deeds dated 21/07/2011 in two portions numbered as B-24/1 and B-24/2 measuring 30x40 ft each total measuring 2400 sq.ft., which is more fully and particularly described as suit schedule A and B properties. Since then plaintiff is in the peaceful possession and enjoyment of the suit schedule properties as absolute owner. Plaintiff herein have constructed two duplex houses with a staircase room in the suit schedule properties. The house construction in suit schedule properties are completed and all the fittings and other costly materials are 12 O.S.No.1287/2014 stored in the said house. The third defendant is involved in major criminal cases in the area since the year 2003-04, and had undergone imprisonment in connection with those cases and is having the nexus of the persons having the criminal backgrounds. On 07/10/2013 at about 11.00am the third defendant accompanied by a gang of rowdy elements have tried to trespass into the layout with an intention to threaten the plaintiff and other owners of the sites who are constructing the houses therein claiming that the land belongs to the defendants. The watchman on duty by name Sri.Krishna when tried to resist the illegal acts of defendant No.3 and the people accompanying him, was beaten up and threaten of his life if he tried to resist the illegal acts. Ultimately they have withdrawn after the jurisdictional police intervened in the matter on receiving the complaint given by plaintiff No.2 and warned him of doing any such acts in future. Defendants kept quiet for sometime thereafter. On 13 O.S.No.1287/2014 09/02/2014 third defendant in the afternoon alongwith a gang of rowdy elements trespassed into the layout and watchman on duty Sri.Jagannath when tried to resist the illegal acts of the third defendant and his accomplices was beaten up and threatened of his life if he tries to resist their illegal acts. Fearing of his life at the hands of third defendant and his gang, watchman have withdrawn and informed plaintiff about defendants trespassing into the layout. Third defendant alongwith rowdy elements by using criminal force trespassed into 'Anugraha Township' layout and broke open the main door of the house constructed in site No.B-24/1, suit schedule A property trespassed into the house and through some of his gang members taken away the costly fitting items stored in the building. Plaintiff on reaching the spot by about 4.00pm on knowing about the matter was attempted to be manhandled. The other defendants joined alongwith defendant No.3 thereafter and collectively threatened 14 O.S.No.1287/2014 plaintiff. Defendants claims that they belongs to SC/ST community and threatened plaintiff of implicating in false cases by misusing the provisions of the laws of atrocities against the weaker sections of the society. Plaintiff has lodged a police complaint of house break and other illegal acts committed by the defendants and the jurisdictional Kadugodi police have registered FIR in Cr.No.0041/2014 dated 09/02/2014 against defendant No.3. Plaintiff with the assistance of the jurisdictional police have restored the possession of the house trespassed by the defendants by preparing mahazar. Plaintiff alongwith Gowtham the other land owner who purchased the land from defendants and the site owners association has filed O.S.No.1204/2014 which is pending before CCH-13 against the entire layout formed in Sy.No.51 against the defendants and there are no other suit pending between the plaintiff and defendants in the knowledge of the plaintiffs with respect to the subject matter of 15 O.S.No.1287/2014 the suit. The cause of action for the suit arose on 09/02/2014 when the defendants trespassed into suit schedule A property and broke open the door of one of the building constructed therein belonging to the plaintiff and tried to interfere with the peaceful possession and enjoyment of the suit schedule properties owned by the plaintiff within the jurisdiction of this Court. Hence, plaintiff has sought for permanent injunction restraining defendant, their agents or servants or anybody claiming through or under them from interfering with the possession and enjoyment of the suit schedule properties by the plaintiff and such other reliefs.
3. Inspite of service of summons, the defendant Nos.1 to 3 have appeared and filed his written statement as under:
The entire plaint averments denied as false except the admitted facts. The address of the defendant in the cause title wrongly shown by the plaintiff as they are 16 O.S.No.1287/2014 permanently residing in their own land in a old house which was established by late Thimmarayappa. The land measuring into extent 6 acres 30 guntas with kharab land measuring into extent 21 guntas situated in Sy.No.51 of Sadaramangala village and it is false that there is no any land measuring to extent of 7 acres 20 guntas has been claimed by the plaintiff. It is the land belongs to late Sri.Thimmarayappa purchased under the registered sale deed dated 09/05/1960 and self-acquired property of him. The late Thimmarayappa bequeath the property in favour of these defendants under Will dated 01/01/1978 and other family members of late Thimmarayappa are not having any right, title or the interest over the said land. The said Thimmarayappa died on 17/07/1979 and these defendants are acquired the title to the property. These defendants are filed petition for claiming probate/letter of administration and initiated proceeding in P & SC No.3/2003 and the same has 17 O.S.No.1287/2014 been filed on 03/01/2003 before this Court and got the order of probate on 05/03/2004. Though the late Thimmarayappa having two wives and children born with them but by way of Will acquired the title to the property belongs to these defendant and other family members have not having in right, title to the property in question. The khatha stands in the name of Sri.Thimmarayappa but by virtue of probate these defendants filed application before the Asst.Commissioner, Bangalore South Sub-Division for effect of mutation and appropriate direction and the said matter is still pending consideration. There is no any oral partition between two wives. Though the mutation was effected that in their names but they are not having any right, title to the property measuring into extent 6 acres 39 guntas with kharab 21 guntas of land. Whatever mutation and RTC placed by the plaintiff before this Court are in question before the Asst.Commissioner, Bangalore South Sub-Division 18 O.S.No.1287/2014 Bangalore. As per the provision of law, the second wife Smt.Munitayamma cannot be claimed the succession of the late Sri.Thimmarayappa. The landed property is bequeathed in favour of 1st defendant with other properties because there shall not be dispute arose between other family members. The registered Partition Deed was alleged have been took place on 09/01/2004 is denied because this partition took place during pendency of proceedings P & SC No.3/2003. The defendants are well aware that the other family members are not having right to execute the partition in respect of the said property , but still on force of other family members the registered partition took place and immediately the sale deeds were also took place subsequently on the same day. The defendants were obstructed for execution of registered documents of partition and sale deed and there is continuous dispute among the family members. Since other family members were made a 19 O.S.No.1287/2014 dispute regarding the Will and avail the probate from this Court, even the partition and sale deeds took place in violation of revenue rules because there is not any mutation in respect of land in question of parties to the documents. The alleged A and B schedule properties shown under partition is not admitted but the documents are created which are not binding when the title or interest is transferred in the name of all the family members. The allotment shown by the plaintiff of A and B schedule properties in favour of Smt.Munitayamma and late Giddama in the Partition Deed but till today, the defendants are not handedover the possession and vacated the land in question. Since these defendants are having continuous possession of the landed property and possession is also confirmed by this Court. Due to dispute regarding title of the property, there is no any sale consideration paid by the plaintiff and another Gowtham who are claiming right through the sale deed. Since the 20 O.S.No.1287/2014 plaintiff and Gowtham neither agriculturist nor they are having any agricultural land in their name as on the date of 09/01/2004. Hence, the alleged sale deeds are in violation of Karnataka Land Reforms Act and Karnataka Revenue Act. The mutation which is claimed by plaintiff and Gowtham are the subject matter of the appeal before the Asst.Commissioner, Bangalore South Sub-Division, Bangalore. The plaintiff and Gowtham are not having possession but taking undue advantage of illiteracy created document behind back these defendants during pendency of probate proceedings and those documents of conversion and payment made by the said Gowtham cannot believe and those documents are not binding on these defendants. When the plaintiff is not having conversion order or possession of landed property he cannot extend to form the layout alongwith said Gowtham. It is surprise that the plaintiff claiming one Gowtham form the layout in Sy.No.51 with the 21 O.S.No.1287/2014 adjoining land in Sy.No.41 under the name and style Anugraha Township with the approval of the then CMC Mahadevapura. There is a total clear violation to form the layout by virtue of terms and conditions imposed by the authorities. The CMC Mahadevapura is not having right to approve the layout plan. When these defendants are protested for illegal interference in the land in question, the 3rd defendant filed a suit in O.S.No.2484/2007 before the II Addl.Civil Judge (Sr.Dn.), Bangalore Rural District, but the said suit directed the 3rd defendant to present before the jurisdictional Court and the suit has been filed in O.S.No.68/2013 which is still pending against the plaintiff and Gowtham in respect of entire land. Whatever developed alleged to have been made by the said Gowtham does not mean that he is having right over the property. That the same time the Gowtham is having claimed a right in respect of 3 acres alongwith kharab land does not mean that entire land in 22 O.S.No.1287/2014 converted and form the layout. The specific identification is not available in respect of the schedule property claimed by the plaintiff. when the layout plan is not approved in accordance with condition laid down in the conversion order the question does not arise the Gowtham are the plaintiff is having right over the property. When the plaintiff himself admitted about the pendency of the proceeding and during litigation all the documents are created among themselves is not create right over the alleged schedule property. The plaintiff claimed that the sites bearing No.B-24 was sold by Gowtham in favour of N.Sudhakaran under the registered sale deed dated 07/02/2005. The said sale deed has been executed by Gowtham during the pendency of the suit before this Court. The documents created by Gowtham in favour of N.Sudhakaran is not binding on the defendants. The plaintiff is very much aware there is dispute regarding title to the property but still creating document among themselves during 23 O.S.No.1287/2014 pendency of the proceedings. The two portion claimed by the plaintiff purchased under two different registered sale deeds dated 21/07/2011 which was B24/1 and B24/2 are not part and parcel of layout formed in sy.No.51 of Sadaramangala village. The schedule property claimed by the plaintiff and put up construction two duplex houses on those properties and the plaintiff have to prove that there is a litigation regarding title to the property. The plaintiff claiming that right over the property it is still under construction but without sanction plan. The plaintiff has placed any documentary evidence to show that he is having license or sanction plan in his favour to put up construction. Further contends that whereas the case and counter cases were registered against the plaintiff and Gowtham and several direction was taken from higher authorities. The plaintiff and Gowtham and their inmates trying to dispossess and Galata was took place has result the 1st defendant sustained 24 O.S.No.1287/2014 severe bleeding injuries and filed complaint before all the authorities. The defendants are depressed class people and harassing by plaintiff who having very influence on the authorities. The allegation has been made in the plaint that on 07/10/2013 the 3rd defendant came alongwith rowdy elements and made threat to his watchmen alongwith one Krishna beaten and created nuisance against the watchman and properties. The false complaint has been lodged only with an intention to create evidence against these defendants who are having peaceful possession and enjoyment of the property. Since the defendants are having peaceful possession and enjoyment of the land question and the plaintiff and his henchmen trying to dispossess from them and creating evidence with false allegation. Only intention behind to make allegation one or the other reason the plaintiff and his henchmen were dispose them from peaceful possession. The criminal cases are already registered against the 25 O.S.No.1287/2014 plaintiff and by the surprising the facts bringing with false and frivolous allegations. The plaintiff is not law abiding citizen because the plaintiff is illegally putting up construction without having license or sanction plan and only with an intention to get the order and to put up construction by trespassing over the landed property belongs to the defendant. There is no any order in favour of Gowtham or the site holders when they have filed the suit against these defendants. There is no any cause of action arose for the suits on 09/02/2014 and these defendants are not trespassed over A schedule property and broke open door of the building belongs to the plaintiff and try to interfere in peaceful possession and enjoyment of the suit schedule property. The prayer sought by the plaintiff seeking permanent injunction restraining that these defendant from interfering with possession and enjoyment of the schedule properties is not maintainable. When the defendants are not handed 26 O.S.No.1287/2014 over any portion of the property in favour of plaintiff is Gowtham the question does not arise. The plaintiff is not entitled to relief sought by him. When the plaintiff is not approached with clean hands and surprise the fact and brought the suit against the true owner of the entire land by virtue of will and acquired the title on death of Sri.Thimarayappa. The suit has been brought only with an intention to get the injunction order by creating documents and trying to dispossess these defendants. The schedule A and B properties brought in the suit is not properly described and these properties are not subject matter of approval layout or formed with the permission of planning authorities. Hence, the schedule properties are not formed in the land belongs to the defendants. The defendants are in peaceful possession and enjoyment of the land in Sy.No.51 of measuring into extent 6 acres 39 guntas with 21 guntas of kharab land acquired the title through the Will dated 01/01/1978 and the probate 27 O.S.No.1287/2014 granted on 05/03/2004 and till today the defendants are having peaceful possession and enjoyment of the said land. Hence, it is necessary to grant permanent injunction restraining the plaintiff from interfering the said land by way of counter claim and necessary court fee has been paid. Hence, prayed to dismiss the suit of the plaintiff and decree the suit by grant of permanent injunction restraining the plaintiff from putting up illegal construction on the agriculture the land measuring into extent 6 acres 39 guntas with 21 guntas kharab and formed house situated in said land and bounded on East by Sambappa property, West by government property, North by Sambappa property and South by property bearing Sy.No.52 in the interest of justice.
4. The plaintiff counsel filed rejoinder to the counterclaim. The plaintiff has averred and reiterated the plaint averments in the rejoinder statement. Apart from that, oral partition admitted in page No.6 para 28 O.S.No.1287/2014 unnumbered (1) of the registered Partition Deed dated 09/01/2004. Subsequent to the registered Partition Deed dated 09/01/2004 and dividing land in Sy.No.51 of Sadramangala village measuring 6 acres 39 guntas by metes and bounds the branch of Smt.Munithayamma and her children, the defendants herein have alienated the land fallen to their share to one Sri.Gowtham under a sale deed dated 09/01/2004 for a valuable consideration and put him in the possession of the same. Branch of Smt.Venkatamma and Smt.Munithimmakka and their children sold the schedule B property to the Partition Deed fallen in their share under a registered sale deed dated 09/01/2004 in favour of plaintiff for a valuable consideration and put him in possession of the same. The plaintiff and Gowtham came to know about the defendants securing the probate order in P&SC No.03/2003 was given to the police station, when the defendant No.3 was summoned to the jurisdictional 29 O.S.No.1287/2014 Kadugodi police station in the FIR in Cr.No.41/2014 dated 09/02/2014 registered against defendant No.3. On 14/02/2014 plaintiff applied for the certified copy of the of the case records in P &SC No.3/2003 and came to know about the fraud played by the defendants in securing order of probate annexed with the copy of Will under the seal of this Court dated 29/01/2013 from this Court. The Will dated 01/01/1978 alleged to have been made by Thimmarayappa is a concocted document. The alleged Will dated 01/01/1978 is written on stamp papers bearing the seal of District Treasury, Tumkur District dated 10/01/1978 alleged to have been issued on 13/01/1978. By misusing the order of probate annexed with the copy of the Will under the seal of this Court dated 29/01/2013 issued by this Court, the defendant tried to change the revenue records which was rejected by the Tahsildhar. Against the said order defendant filed RA No.(BE) 344/202-13 before the 30 O.S.No.1287/2014 Asst.Commissioner, Bangalore North by making plaintiff and Gowtham as respondent. Plaintiff and Gowtham are contesting the said appeal. Having failed to secure any favourable order from the civil Court and revenue Court, defendants are tryingt o take law in their hand by using rowdy is trespassing over the property owned by the plaintiff and other site owners. Another case in O.S.No.1406/2014 filed by owner of 1 acre converted land in Sy.No.51 filed against defendants is also pending before this Court. The plaintiff alongwith Gowtham has already preferred petition under Sec.263(b) & (d) of The Indian Succession Act, 1925 in P&SC No.61/2014 before the Court of Succession which granted the probate order in P &SC No.3/2003 for revocation/annulment of the order of probate annexed with the copy of the Will dated 01/01/1978 issued under the seal of this Court dated 29/01/2013, as per the order of this Court dated 19/01/2013 in favour of the defendants and 31 O.S.No.1287/2014 also for directing the defendants to surrender the order of probate annexed with the copy of the Will dated 01/01/1978 issued under the seal of this Court dated 29/01/2013. The Hon'ble Court after hearing the I.A. for stay filed in P & SC No.61/2014 vide order dated 21/02/2014 stayed the operation of the order of probate. All other written statement averments specifically denied by the plaintiff. The defendants are not in possession of the any portion of the land in Sy.No.51 of Sadramangala village and defendant has not paid the proper court fee on the counter claim. Hence, prayed that dismiss the counterclaim sought by the defendants in their written statement against the plaintiff with exemplary costs and decree the suit as prayed in the suit of plaintiff.
5. On the basis of the above pleadings, the following issues are framed ;
1) Whether the plaintiff proves that he is the absolute owner in possession of the suit schedule properties ?
32 O.S.No.1287/2014
2) Whether the plaintiff proves the alleged interference by defendants with his possession over the suit schedule property ?
3) Whether valuation of the suit property and payment of court fee is proper ?
4) Whether the defendant proves that they are entitled for the counter claim as sought for ?
5) Whether the plaintiff is entitled for suit reliefs sought for ?
6) What order or decree?
Addl. Issue:
1) Whether plaintiff proves that he is in lawful possession and enjoyment of the suit schedule properties ?
6. In order to prove the case, plaintiff himself has examined as P.W-1 and got marked Ex.P.1 to Ex.P.41 and closed his side. The defendant No.3 himself examined as D.W-1 and got marked Ex.D.1 to Ex.D.46 and closed their side.
7. Heard the arguments and written arguments filed on both the sides.
8. My findings on the above issues are as follows:
33 O.S.No.1287/2014
Issue No. 1: Deleted Issue No. 2 : In the Affirmative Issue No. 3 : In the Affirmative Issue No. 4 : In the Negative Issue No. 5 : In the Affirmative Addl.Issue No.1 : In the Affirmative Issue No. 6 : As per final order for the following:
REASONS
9. Issue No.3: According to defendants, the plaintiff has paid the insufficient court fee. It is pertinent to note that plaintiff has filed suit for permanent injunction against the defendant in respect of A and B schedule properties. The plaintiff has paid court fee under Sec.26(c) of Karnataka Court Fees and Suit Valuation Act. The court fee paid is Rs.50/-. Hence, plaintiff has correctly valued under Sec.26(c) of Karnataka Court Fees and Suit Valuation Act and paid court fee of Rs.50/- because the plaintiff has filed the suit for only permanent injunction. Hence, plaintiff proves that court fee paid by the plaintiff is correct. 34 O.S.No.1287/2014 The defendant fails to prove that court fee paid by the plaintiff is insufficient. Accordingly, I answer issue No.3 in the Affirmative.
10. Issue Nos.2,4 and Addl.Issue No.1: In order prove the case, the plaintiff himself examined as P.W-1 by name P.K.Sathyapal @ Sathyavirathan and in his affidavit evidence, reiterated the plaint averments. To support his affidavit evidence, he has produced Ex.P.1, certified copy of the sale deed dated 09/05/1990, Ex.P.2 is the certified copy of the order in MR No.1/1994-95, Ex.P.3 is the certified copy of the mutation register extract, Ex.P.4 is the certified copy of the order in MR No.2/1995-96, Ex.P.5 is the certified copy of the two RTCs, Ex.P.6 is the certified copy of the Partition Deed, Ex.P.7 and 8 are the certified copies of the sale deeds dated 09/01/2004, Ex.P.9 is the certified copy of the mutation register extract, Ex.P.10 is the certified copy of the notice dated 02/06/2004, Ex.P.11 is the certified copy of the challan, Ex.P.12 is 35 O.S.No.1287/2014 the certified copy of the conversion order dated 04/06/2004, Ex.P.13 is the certified copy of the mutation register extract, Ex.P.14 is the certified copy of the right RTCs, Ex.P.15 is the certified copy of the layout plan, Ex.P.16 is the certified copy of the official memorandum dated 30/10/2006, Ex.P.17 is the certified copy of the seven transformer test certificate, Ex.P.18 is the certified copy of the three guarantee certificates, Ex.P.19 is the certified copy of the plaint in O.S.No.2484/2007, Ex.P.20 is the sale deed dated 07/02/2005, Ex.P.21 is the property register extract, Ex.P.22 is the three tax paid receipts, Ex.P.23 and 24 are the sale deeds dated 21/07/2011, Ex.P.25 is the nine photographs, Ex.P.25(a) is the CD, Ex.P.26 is the certified copy of the ordersheet in P & SC No.61/14, Ex.P.27 is the certified copy of the judgment in MFA No.6773/2014, certified copy of the orders on I.A. No.3 in O.S.No.68/2013, Ex.P.29 is the certified copy of the decree in O.S.No.68/2013, Ex.P.30 is the five 36 O.S.No.1287/2014 photographs, Ex.P.30(a) is the studio receipt, Ex.P.30(b) is the CD, Ex.P.31 is the two property register extracts, Ex.P.32 is the ten tax paid receipts, Ex.P.33 is the two power sanction letter, Ex.P.34 is the two electricity bill, Ex.P.34(a) is two receipts, Ex.P.35 is KIADB endorsement dated 22/10/1997, Ex.P.36 is the endorsement dated 10/09/1991 issued by Tahasildhar, Ex.P.37 is the endorsement dated 21/03/1991 issued by Bangalore Development Authority, Ex.P.38 is the endorsement dated 06/05/2002 issued by Bangalore Development Authority, Ex.P.39 is the endorsement dated 24/05/2002 issued by KHB, Ex.P.40 is the endorsement dated 19/11/2002 issued by Tahasildhar, Ex.P.41 is the survey sketch.
11. According to plaintiff, one late Thimmarayappa was the owner of the land in Sy.No.51 of Sadaramangala village measuring 7 acres 20 guntas including 21 guntas kharab land having acquired the 37 O.S.No.1287/2014 same under a registered sale deed dated 09/05/1960. The said Thimmarayappa died intestate on 17/07/1979 leaving behind his two wives Smt.Gidamma and Smt.Munithayamma and their children to succeed to his estate. After death of Thimmarayappa, the khatha was initially mutated in the joint name of two wives in MR No.1/91-92. Thereafter, the land in Sy.No.5 was divided between the branches of his two wives under an oral partition and the land was mutated as per mutation order MR No.1/94-95 and MR No.2/95-96 and the respective branches acquired 3 acres and 19 ½ guntas of land each. After the death of the first wife Smt.Giddamma, she was survived by her daughters Smt.Venkatamma and Smt.Munithimakka and accordingly 3 acres 19 ½ guntas of land fallen to the share of the branch of Giddamma was mutated in their name. Thereafter, legal heirs of late Giddamma i.e., Smt.Venkatamma and Smt.Munithimakka and their children and the 38 O.S.No.1287/2014 surviving wife of Thimmarayappa, Smt.Munithayamma and her children, who are the defendants and others entered into a registered Partition Deed dated 09/01/2004 dividing the land in Sy.No.51 of Sadramangala village by metes and bounds as per the previous oral partition. The property fallen to the share of Smt.Munithayamma and her children the defendant is described as schedule A inhe Partition Deed and the property described in schedule B inhe Partition Deed was allotted to the branch of late Giddamma. The said Munithayamma and her children i.e., the defendants alongwith others have sold the schedule A property to the Partition Deed in favour of Sri.Gowtham under a sale deed dated 09/01/2004 for a valuable consideration and put him in the possession of the property. Smt.Venkaamma and Smt.Munithimmakka and their children sold the schedule B property to the Partition Deed fallen in their share under a registered sale deed dated 09/01/2004 in favour of plaintiff for 39 O.S.No.1287/2014 valuable consideration and put him in possession of the property. Since the purchase the plaintiff and said Gowtham are in possession and enjoyment of the suit schedule property and also revenue records stands in the name of plaintiff and Gowtham in respect of lands in MR No.22/2003-04 and MR No.26/2003-04. thereafter, and Gowtham being the owners in possession of the composite property of 7 acres 20 guntas in sy.No.51 have jointly applied for the conversion of 6 acres of land for non-agricultural residential purpose and Special Dy.Commissioner vide official memorandum No.B.Dis.ALN (E)/SR/36/2004- 05 dated 04/06/2004 has granted the conversion order on payment of the requisite conversion charges. The plaintiff and Gowtham have developed the entire land in Sy.No.51 into a residential layout alongwith the adjoining land in Sy.No.47 as a gated community in the name and style of Anugraha township as per the plan approved by the jurisdictional authorities, put up 40 O.S.No.1287/2014 all around compound wall with one entry gate and provided with facilities like road, underground, sanitary lines, water connections with overhead tanks for the entire layout, power supply lines for entire layout with transformers leaving areas for amenities and other facilities with security being provided round the clock. The land in Sy.No.51 had been developed into residential layout since the year 2005 and Gowtham have sold most of the sites formed therein to different purchasers and the purchasers alongwith him and Gowtham are in peaceful possession and enjoyment of the composite property. The site owners got registered 'Anugraha Township Plot Owners Association' under Karnataka societies Registration Act vide Registration No.SOR/BLU/DR/41/2008-09 dated 30/06/2009 to collectively look after and manage the affairs of the layout known as Anugraha Township and also to protect the interests of the site owners. One N.Sudhakaran S/o N.Narayanan being the 41 O.S.No.1287/2014 absolute owner in possession of the converted site bearing No.B-24 has sold said site No.B-24 under two registered sale deeds dated 21/07/2011 in two portions numbered as B-24/1 and B-24/2 measuring 30x40 ft each total measuring 2400 sq.ft. which is described as suit schedule A and B properties for a valuable consideration and put him in possession of the property. Since then he is in possession and enjoyment of the suit schedule A and B properties as absolute owner. He has constructed two duplex houses with a staircase room on the terrace in the suit schedule A and B properties. The house construction in suit schedule properties are completed and the houses are provided with the amenities such as electricity by Bescom. The Bruhath Bangalore Mahanagara Palike khatha of the schedule A and B properties stand in the name of plaintiff. On 07/10/2013 at about 11.am the third defendant accompanied by a gang of rowdy elements have tried to 42 O.S.No.1287/2014 trespass into the layout with an intention to threaten him and other owners of the sites who are constructing the houses claiming that the land belongs to them. The watchman on duty by name Sri.Krishna when tried to resist the illegal acts of defendant No.3 and the people accompanying him was beaten up and threatened of his life if he tried to resist their illegal acts. Thereafter, he lodged complaint before the concerned police station. On 09/02/2014 third defendant in the afternoon alongwith a gang of rowdy elements trespassed into the layout and watchman on duty Sri.Jagannath when tried to resist the illegal acts of the third defendant and his accomplices were beaten up and threatened of his life if he tries to resist their illegal acts. The third defendant alongwith rowdy elements by using criminal force trespassed into Anugrapha Township layout and broke open the main door of the house constructed in site No.B-24/1, suit schedule A property, trespassed into the house and 43 O.S.No.1287/2014 through some of his gang members taken away the costly fitting items stored in the building. Thereafter, he lodged a police complaint of house break and other illegal acts committed by the defendants and jurisdictional Kadugodi police have registered FIR in Cr.No.41/2014 dated 09/02/2014 against defendant No.3. The defendant was never in possession of the suit schedule property after purchase of suit schedule property by plaintiff and previous owners. The defendants are interfering with his peaceful possession and enjoyment of the suit schedule property. The defendants have no right, title and interest over the suit schedule property.
12. Per contra, it is the case of the defendant that no such partition in between two wives of Thimmarayappa and defendants have not executed any sale deed any point of time in favour of the plaintiff and others. The defendants are residing in land bearing Sy.No.51 belonging to them and they are the 44 O.S.No.1287/2014 owners in possession and had rights, title and interferes upto displaced by the plaintiff with the help of police from the dwelling house in land bearing Sy.No.51 belongs to defendants. In Deed No.20550/03-04 and in Deed nO.20501/2013-14 the names mentioned as T.Lakshmipathy, T.Mohanraj, T.Gajendra, but not mentioned son of in the two deeds. The said sale deeds are created by Sathyapal Gowtham at single time, the said sale deeds are bogus documents and it is created by Sathyapal and Gowtham. P & SC No.61/2014 is still pending with regard to title deeds. Before filing of O.S.No.1287/2014 and O.S.No.1406/2014, the defendants were residing in dwelling house from birth in land bearing Sy.No.51 of Sadaramangala village. The defendants have not signed the sale deeds such as No.20500/2003-04, 20501/2003-04 and 23101/2003-
04. The photos shows that defendants were in possession of the suit schedule property. With 45 O.S.No.1287/2014 malafide intention, the plaintiff has dispossessed the defendants in the suit schedule property. To support the contention, the defendants have produced Ex.D.1 to 3, certified copy of the electricity bills, Ex.D.4 is the certified copy of the invoice dated 22/01/2004, Ex.D.5 is the certified copy of the delivery challan, Ex.D.6 and 7 are the certified copies of certificates of Prabha and Maruthi.M, Ex.D.8 is the certified copy of the endorsement dated 18/06/2012, Ex.D.9 is the certified copy of the FIR dated 13/02/2014, Ex.D.10 is the certified copy of the registered Partition Deed dated 09/01/2004, Ex.D.11 is the certified copy of the insurance cover note, Ex.D.12 is the certified copy of the registered absolute sale deed dated 09/01/2004, Ex.D.13 is the certified copy of the SB pass book, Ex.D.14 is the certified copy of the income tax returns form, Ex.D.15 is the certified copy of the release general insurance copy, Ex.D.16 to Ex.D.23 is the certified copy of the RTC extract, Ex.D.24 is the 46 O.S.No.1287/2014 certified copy of the Encumbrance Certificate, Ex.D.25 is the certified copy of the RTC extract, Ex.D.26 is the certified copy of the orders in O.S.No.1406/2014 alongwith the postal receipts, Ex.D.27 is the certified copy of the joint memo in Cr.No.21/2014, Ex.D.28 is the certified copy of the FIR dated 05/03/2014 alongwith complaint copies and documents, Ex.D.29 is the certified copy of the notice copy in O.S.No.1406/2014, Ex.D.30 is the certified copy of the I.A. under Order XXXIX Rule 2A of Code of Civil Procedure in O.S.No.1406/2014, Ex.D.31 and 32 are the certified copies of the RTC extract, Ex.D.33 is the certified copy of the form No.15, Ex.D.34 is the certified copy of the order in Writ Petition No.56811/2014, Ex.D.35 and Ex.D.36 are the certified copy of the plaint, ordersheet in O.S.No.8718/2015, Ex.D.37 is the certified copy of the endorsement issued by Bruhath Bangalore Mahanagara Palike dated 02/06/2015 alongwith sketch, Ex.D.38 is the certified 47 O.S.No.1287/2014 copy of the endorsement given by Sub-Registrar, K.R.Puram dated 23/04/2016 alongwith document, Ex.D.39 is the certified copy of the photos, Ex.D.40 is the election ID card of Prema, Ex.D.41 is the election card of A.S.Karpagavalli, Ex.D.42 is the election card of Radha, Ex.D.43 is the election card of Geetha,, Ex.D.44 is the election card of Venkatamma, Ex.D.45 is the certificate under Sec.65B of Indian Evidence Act, and Ex.D.46 is the CD.
13. In this case, plaintiff has filed suit for permanent injunction and after appearance defendant has also sought permanent injunction against plaintiff by way of counterclaim in respect of the suit schedule property. Both are claiming that they are in peaceful possession of the suit schedule property. It is the specific case of the plaintiff that defendants are interference with his peaceful possession and enjoyment of the suit schedule property. Before filing of the suit, the defendants have trespassed into the 48 O.S.No.1287/2014 suit schedule property and after lodging the complaint they were dispossessed from the suit schedule property. Again defendants have interference with his peaceful possession and enjoyment of the suit schedule property. On the other hand, it is the specific case of the defendants that plaintiff has interference with their peaceful possession and enjoyment of the suit schedule property. The defendants have taken specific contention at para No.7 at page No.4 that "defendants are not handedover possession and vacated the land in question. Since these defendants are having continuous possession of landed property and possession is also confirmed by this Court." Further, the defendants in their written statement at para No.11 at page No.9 has taken specific contention that "since the defendants are having peaceful possession and enjoyment of the land question and the plaintiff and his henchmen trying to disposses from them and creating evidence with false allegation." 49 O.S.No.1287/2014 Further at para No.12 at page No.9 of the written statement has stated that "plaintiff is not law abiding citizen because the plaintiff is illegally putting up construction without having license or sanction plan and only with an intention to get the order and to put up construction by trespassing over the landed property belongs to the defendant." Further at page No.11 at para No.17 taken specific contention in their written statement that "defendants are in peaceful possession and enjoyment of the land in Sy.No.51 of measuring into extent 6 acres 39 guntas with 21 guntas of kharab land acquired the title through the Will dated 01/01/1978 and probate granted on 05/03/2004 and till today the defendants are having peaceful possession and enjoyment of the said land." Further, at page No.12 of their written statement in prayer column taken specific contention that "decree the suit by grant of permanent injunction restraining the plaintiff from putting up illegal construction on the 50 O.S.No.1287/2014 agriculture the land measuring into extent 6 acres 39 guntas with 21 guntas kharab and formed house situated in said land and bounded on East by Sambappa property, West by government property, North by Sambappa property and South by property bearing No.52". But D.W-1 in his chief evidence at para No.23 has deposed that "on misguidance, the plaintiff made layout, upto displacement, the defendant inside the land bearing Sy.No.51, the plaintiff with the help of police and rowdy elements thrown out from the Sy.No.51." Further at page No.24 at page No.9 of the evidence of D.W-1, he deposed that "one bad day by the support of rowdy elements and on misguidance to the police, the plaintiff demolished the dwelling house and taken forcible possession from the model houses built by the plaintiff in land bearing sy.No.51." Further at para No.25, it is deposed that before filing of O.S.No.1287/2014 and O.S.No.1406/2014, the defendants and their children 51 O.S.No.1287/2014 were residing in dwelling house from birth in land bearing Sy.No.51 of the Sadaramangala village. Further at para No.26 deposed that "P.K.Sathyapal was built model houses, the keys all in the houses of defendant No.3 i.e., the possession of model houses with them, one bad day with the help of rowdies and police vacated the place by the Sathyapal." Further at para No.30 at page No.12 it is deposed by D.W-1 that at any point of time P.S.Sathyapal, the plaintiff in the possession in land bearing Sy.No.51. At para 32, page 12 , D.W-1 in his evidence deposed that actual possession of build model houses was in possession of the defendants, but the plaintiff with a malafide intention, possession captured, now his family not in Sy.No.51. Further at page No.13 in para No.34, D.W-1 deposed that they are the owners in physical possession and enjoyment having rights, titles, interest upto displaced by the plaintiff with the help of rowdy elements.
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14. In the cross-examination of D.W-1 admitted that in the year 2013, plaintiff has constructed two houses in the suit schedule property and same were completed in the year 2014. Further, admitted that as shown in Ex.P.25 i.e., 9 photos, plaintiffs have constructed the houses in property bearing No.B-24/1 and B-24/2. further D.W-1 in his cross-examination admitted that complaint lodged against him before the Kadugodi police station. The defendant counsel in his written arguments stated that plaintiff alongwith his friend Gowtham had approached to develop the defendants' land bearing Sy.No.51 is situated at Sadaramagala village, to develop the land on the basis of joint venture as such model houses were constructed on the consent of defendants, the defendants were in possession of model duplex houses alongwith entire land bearing Sy.No.51 situated at Sadaramangala village, but the plaintiff by misguiding the police with the help of rowdy gangs made atrocity 53 O.S.No.1287/2014 and displaced the defendants from the model houses and entire land on 15/04/2016, no consideration received by the defendants, no sale deeds executed by the defendants in land bearing Sy.No.51 is situated at Sadaramangala, the plaintiff has created so called possessed sale deeds on 09/01/2004. The plaintiff's title under dispute in P & SC.61/2014 which is pending, at any point of time the plaintiff is not in possession of the suit schedule property, the possession of the duplex houses with the defendants wherein possession upto displacement made by the plaintiff on 15/04/2016, no Partition Deed came into an existence on 09/01/2014.
15. The defendants in their written statement, written arguments and also deposition of D.W-1 taken different versions with respect to possession of the suit schedule property. D.W-1 himself admitted that plaintiffs have constructed the house in the suit schedule property in the year 2013 and dwelling 54 O.S.No.1287/2014 houses were completed in the year 2014. Further admitted that plaintiffs have constructed the house No.B-24/1 and B-24/2 in respect of the suit schedule property. But documents produced by the plaintiff with respect to Ex.P.7 and Ex.P.8, it reveals that plaintiff and Gowtham have purchased the land in Sy.No.51 measuring 7 acres 20 guntas from different two sale deeds dated 09/01/2004 and thereafter revenue records were mutated in their names and converted as per Ex.P.9 to Ex.P.12. The RTC of land in Sy.No.51 of Sadaramangala reflects the name of its owner by name plaintiff and Gowtham since 2004-05 as per Ex.P.14 i.e., 8 RTC extracts, Ex.P.15 is approved plan, it reveals that obtaining the permission from Government of Karnataka, Electrical Inspectorate formed layout vide official memorandum No.EI(East)1634-37/2006-07 dated 30/10/2006 as per Ex.P.16. The photos produced by the plaintiff shows that Anugraha township residential layout is 55 O.S.No.1287/2014 fully developed residential layout developed as a gated community with all around compound wall with one entry gate. The defendants in their written statement and also affidavit evidence denied the sale deeds dated 09/01/2004. But they have not challenged the said sale deeds in this case. Only the defendants have sought permanent injunction against the plaintiffs. But defendant himself admitted that they dispossessed from suit schedule property before filing of the suit. But it is admitted fact that land in Sy.No.51 of Sadaramangala was acquired by Sri.Thimmarayappa under registered sale deed dated 09/05/1960 as per Ex.P.1. But the defendants have denied MR No.1/94- 95 and MR No.2/95-96. According to defendants, they have challenged the said order before the competent authority. The Ex.P.3, Ex.P.2 and Ex.P.4 reveals that 3 acres 19 ½ guntas of land in Sy.No.51 had mutated in the branch of Giddamma who was the wife of Thimmarayappa. The defendants have denied the 56 O.S.No.1287/2014 relationship of Giddamma with Thimmrayappa. But they have not challenged the Partition Deed in this case by way of seeking declaration relief with regard to the Partition Deed as null and void. The documents produced by the plaintiff as per Ex.P.35 to 41 reveals that alienation was made by the defendant after securing the documents from the office of KIADB, Tahasildhar, Bangalore South Taluk, Land Acquisition Officer, Bangalore Development Authority pertaining to Sy.No.51 of Sadaramangala village. According to plaintiff, converted site bearing No.B24 measuring 2400 sq.ft. formed in the converted land in Sy.No.51 belonged to Gowtham and Anugraha Township was sold to N.Sudhakaran under a registered sale deed dated 07/02/2005. The said Sudhakar being the absolute owner in possession converted the site No.B24 and has sold the said converted site No.24 to plaintiff and the same has been sold to the plaintiff under two registered sale deed dated 21/07/2011 57 O.S.No.1287/2014 numbered as B-24/1 and B-24/2 measuring 30x40 ft. each total measuring 2400 sq.ft., i.e., the suit schedule property for a valuable consideration and put in possession of the property. In this case, defendant No.3 who is examined as D.W-1 himself admitted that plaintiff has constructed the house in suit schedule property. But the defendants have not produced any materials to show that while constructing the houses in the suit schedule properties by the plaintiff why he has not questioned the same by way of filing the suit nor lodged complaint before the concerned station. No materials produced by the defendants to show that what steps they have taken at the time of constructing the house in respect of suit schedule property by plaintiff. According to defendants, the plaintiff and one Gowtham were created and developed the area, but there is no materials produced by the defendants, to show that whether agreement was made in between the plaintiff and Gowtham and defendants in respect of 58 O.S.No.1287/2014 the suit schedule property. Further, the defendants have not specifically denied Ex.P.22, Ex.P.24 with regard to sale deed dated 07/02/2005 property register extract, tax paid receipts, sale deeds dated 21/07/2011. I have already stated that D.W-1 himself admitted that plaintiff started construction of the house in schedule property in the year 2012 and completed the construction of the houses in the year 2014. It reveals that plaintiff is in possession and enjoyment of the suit schedule property before filing of the suit and as on the date of the institution of the suit. It is admitted fact that defendants have instituted the suit in O.S.No.2484/2007. In the said plaint averments, the present defendants have questioned the sale deed in the said suit. The documents produced by the plaintiff reveals that in respect of Sy.No.51 of Sadaramangala village, the Partition Deed made in between the family members of the defendants and alienating the property. The 59 O.S.No.1287/2014 plaintiff counsel in his written arguments taken contention that principle of estoppel applicable in this case, because the defendants have alienated the suit schedule property, again they challenged the said sale deeds. But according to defendants, the said sale deeds are created one. With respect to said documents, suits are pending in other Courts. It is pertinent to note that in this case, the plaintiff and defendants have sought permanent injunction in respect of the suit schedule property. Further, the plaintiff in his written arguments stated that O.S.No.68/2013 filed by defendant No.3 seeking for declaration in respect of the land in Sy.No.51 of Sadaramangala village measuring 7 acres, 20 guntas is covered under Sec.34 of Specific Relief Act and in said suit defendant Nos.1 and 2 are defendant Nos.1 and 2 in O.S.No.1287/2014 and said suit was rejected as barred by law as per the detail order at Ex.P.28 and Ex.P.29. But in this case defendants have not seeking 60 O.S.No.1287/2014 declaration relief and only seeking permanent injunction against the present plaintiff. Hence, Sec.35 of Specific Relief Act is not applicable in this case. The plaintiff has not produced any materials to show that before filing of counter claim, the present defendants have sought permanent injunction against him. The documents produced by the plaintiff are supporting with respect to possession of the plaintiff in respect of the suit schedule property. On the other hand, the documents produced by the defendant have not support their case, because D.W-1 himself admitted that defendants were dispossessed from the suit schedule property. But in written statement, taken specific contention that they are in possession and enjoyment of the suit schedule property. In this regard defendants have not produced any materials to show that they are in possession and enjoyment of the suit schedule property. In this case, the defendants have specifically denied the sale deeds. But without seeking 61 O.S.No.1287/2014 declaration relief, the defendants could not question the sale deed executed by the legal representatives of Giddamma and also the defendants. Further claiming of kharab land by the defendants, it can be questioned before the proper Court, but not in this case. Further, defendants in their written statement disputed the identification of the suit schedule property. But no materials produced by the defendants with respect to said contention. Further, defendants have not produced any sufficient materials to show that documents are created by plaintiff in collusion with Gowtham in respect of the suit schedule property and documents produced by the defendants are not supporting their case. With respect to the Will, it is admitted fact that P & SC No.61/2014 is pending. The documents produced by the defendants are not support their counterclaim with respect to possession of the suit schedule property and interference by the suit schedule property by plaintiffs. The defendants 62 O.S.No.1287/2014 have not produced any materials to show that they have obtained electricity connection to the suit schedule property. Mere filing the two electrical bills, no materials produced by the defendants to show that they have obtained the electricity connection to the suit schedule property. On the basis of the photos as per Ex.D.39 and Ex.D.46, it cannot say that defendants are in peaceful possession and enjoyment of the suit schedule property. Hence, defendants have failed to prove that they are in possession and enjoyment of the suit schedule property and plaintiffs have put up illegal construction on the agricultural land to the extent of 6 acres 39 guntas with 21 guntas kharab land and formed houses situated in land bounded on East by Sambappa property, West by government property, North by Sambappa property and South by property bearing Sy.No.52. On the otherhand, the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule 63 O.S.No.1287/2014 property and defendants are trying to trespass into the suit schedule property. Further, it is the specific contention of the plaintiffs that on 07/10/2013, the defendant No.3 accompanied by gang of rowdy elements have tried to trespass into the layout with an intention to threaten the plaintiff and other owners of the site, then jurisdictional police intervened in the matter and received the complaint by the plaintiff and warned the defendants. Again on 09/02/2014, the defendant No.3 alongwith rowdy elements trespassed into the layout and beaten up the duty watchman by name Jagannath when he tried to resist the illegal act of 3rd defendant and also using criminal force, trespassed into Anugraha Township and broke open the main door of the house constructed in the suit schedule properties. Thereafter, the plaintiff has lodged the police complaint against the defendants before the Kadugodi police and they have registered FIR in Cr.No.41/2014 dated 09/02/2014. In this 64 O.S.No.1287/2014 regard D.W-1 in his cross-examination admitted that complaint lodged before the Kadugodi police station against him, Ex.P.43 reveals that plaintiff lodged a complaint against defendant No.3 and others. Hence, plaintiff proves that defendants have interference with his peaceful possession and enjoyment of the suit schedule property. When defendants have not proved their possession with respect to suit schedule property, the question of interference by the plaintiff does not arise at all. Accordingly, I answer issue No.2 and additional issue No.1 in the Affirmative, issue No.4 in the Negative.
16. Issue No.5: In view of my findings to issue Nos.2 to 4 and additional issue No.1, the plaintiff is entitled for permanent injunction against the defendants as sought for. Accordingly, I answer issue No.5 in the Affirmative.
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17. Issue No.6 : In view of my answers to issue Nos.2 to 5 and additional issue No.1, I pass the following :
ORDER The suit of the plaintiff is hereby decreed with costs.
Permanent injunction granted against the defendants restraining them, their agents or servants or anybody claiming through or under them from interfering with possession and enjoyment of the suit schedule property by the plaintiff in respect of A and B schedule property.
The counterclaim sought by the defendant is herewith rejected.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this the 23rd day of January, 2018.).
( NAGAVENI ) V ADDL.CITY CIVIL JUDGE, BANGALORE.
**** ANNEXURE List of witnesses examined for the plaintiff :
P.W.1 P.K.Sathyapal 66 O.S.No.1287/2014 List of witnesses examined for the defendants :
D.W.1 T.Mohanraj List of documents marked for the plaintiff :
Ex.P.1 Certified copy of the sale deed dated 09/05/1960 Ex.P.2 Certified copy of the order in MR No.1/1994-95 Ex.P.3 Certified copy of the Mutation Register extract Ex.P.4 Certified copy of the order in M No.2/1995-96 Ex.P.5 Certified copy of the two RTC Ex.P.6 Certified copy of the Partition Deed Ex.P.7 Certified copy of the sale deed dated 09/01/2004 Ex.P.8 Certified copy of the sale deed dated 09/01/2004 Ex.P.9 Certified copy of the Mutation Register Extract Ex.P.10 Certified copy of the notice dated 02/06/2004 Ex.P.11 Certified copy of the challan Ex.P.12 Certified copy of the conversion order dated 04/06/2004 Ex.P.13 Certified copy of the Mutation Register Extract Ex.P.14 Certified copy of the Eight RTCs Ex.P.15 Certified copy of the layout plan Ex.P.16 Certified copy of the official memorandum dated 30/10/2006 Ex.P.17 Certified copy of the seven transformer test certificate Ex.P.18 Certified copy of the three guarantee certificates Ex.P.19 Certified copy of the plaint in O.S.No.2484/07, written statement and ordersheet Ex.P.20 Sale deed dated 07/02/2005 Ex.P.21 Property register extract Ex.P.22 Three tax paid receipts Ex.P.23 Sale deed dated 21/07/2011 Ex.P.24 Sale deed dated 21/07/2011 Ex.P.25 Nine photographs Ex.P.25(a) CD Ex.P.26 Certified copy of the ordersheet in P&SC No.61/14, I.A. Ex.P.27 Certified copy of the judgment in MFA No.6773/2014 Ex.P.28 Certified copy of the orders on I.A. No.3 in O.S.No.68/13 Ex.P.29 Certified copy of the Decree in O.S.No.68/13 Ex.P.30 Five photographs 67 O.S.No.1287/2014 Ex.P.30(a) Studio receipt Ex.P.30(b) CD Ex.P.31 Two property register extracts Ex.P.32 Ten tax paid receipts Ex.P.33 Two power sanction letter Ex.P.34 Two electricity bill Ex.P.34(a) Two receipts Ex.P.35 KIADB endorsement dated 22/10/1997 Ex.P.36 Endorsement dated 10/09/1991 issued by Tahasildar Ex.P.37 Endorsement dated 21/0/1991 issued by Bangalore Development Authority' Ex.P.38 Endorsement dated 06/05/2002 issued by Bangalore Development Authority Ex.P.39 Endorsement dated 24/05/2002 issued by KHB Ex.P.40 Endorsement dated 19/11/2002 issued by Tahasildar Ex.P.41 Survey sketch List of documents marked for the defendants : NIl Ex.D.1 to 3 Certified copy of the 3 electricity bills Ex.D.4 Certified copy of the invoice dated 22/01/2004 Ex.D.5 Certified copy of the delivery challan Ex.D.6 Certified copy of the bonafide a certificate belongs to Prabha.M Ex.D.7 Certified copy of the bonafide a certificate belongs to Maruthi.M Ex.D.8 Certified copy of the endorsement dated 18/06/2012 Ex.D.9 Certified copy of the FIR dated 13/02/2014 Ex.D.10 Certified copy of the registered Partition Deed dated 09/01/2004 Ex.D.11 Certified copy of the Insurance cover note Ex.D.12 Certified copy of the registered absolute sale deed 09/01/2004 Ex.D.13 Certified copy of the SB pass book Ex.D.14 Certified copy of the Income Tax return form Ex.D.15 Certified copy of the 3 release general insurance copy Ex.D.16-23 Certified copies of the RTC extracts (8 in nos.) Ex.D.24 Certified copy of the Encumbrance Certificate Ex.D.25 Certified copy of the RTC extract Ex.D.26 Certified copy of the orders in O.S.No.1406/2014 68 O.S.No.1287/2014 alongwith postal receipts Ex.D.27 Certified copy of the joint memo in Cr.No.21/2014 Ex.D.28 Certified copy of the FIR dated 05/03/2014 Ex.D.29 Certified copy of the notice copy in O.S.No.1406/2014 (6 Nos.) Ex.D.30 Certified copy of the I.A. u/O XXXIX Rule 2A CPC in O.S.No.1406/2014 Ex.D.31, 32 Certified copy of the RTC extract (2 nos.) Ex.D.33 Certified copy of the form No.15 (2 nos.) Ex.D.34 Certified copy of the order in Writ Petition No.56811/14 Ex.D.35, 36 Certified copy of the plaint, ordersheet in O.S.No.8718/2015 Ex.D.37 Certified copy of the endorsement issued by Bruhath Bangalore Mahanagara Palike dated 02/06/2015 alongwith sketch Ex.D.38 Certified copy of the endorsement given by Sub-
Registrar, KR Puram dated 23/04/2016 alongwith document Ex.D.39 Certified copy of the photos (11 pages) Ex.D.40 Election card belongs to Prema Ex.D.41 Election card belongs to A.S.Karpagavalli Ex.D.42 Election card of Radha Ex.D.43 Election card of Geetha Ex.D.44 Election card of Venkatamma Ex.D.45 Certificate u/S.65B of Indian Evidence Act Ex.D.46 One CD ( NAGAVENI ) V ADDL.CITY CIVIL JUDGE BANGALORE **** 69 O.S.No.1287/2014