Bangalore District Court
Smt. Usha Gupta vs M/S. Niranjan Developers on 27 November, 2019
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 27th day of November, 2019.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.6146/2010
PLAINTIFF : Smt. Usha Gupta
W/o Sri M.V. Subbarama Gupta
Aged about 50 years
R/at No.2930/E,
East of Chord Road,
Vijayanagar,
Bengaluru-560 040
(By Sri K.N.Mohan, Adv.
VS.
DEFENDANT : M/s. Niranjan Developers,
#41/5, Chikkabegur Gate
Hosur Main Road,
Bengaluru-560 068
Represented by its Proprietor
(By Sri K.T.D. Adv.
2 O.S.No.6146/2010
Date of Institution of the suit : 30.08.2010
Nature of the suit : Suit for Permanent
Injunction
Date of commencement of : 21.03.2017
recording of the evidence
Date on which the Judgment was : 27.11.2019
pronounced
Total Duration Years Months Days
09 02 27
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
Plaintiff has filed this suit for the relief of perpetual injunction restraining the defendant, his agents, workmen, labourers or any person claiming under the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property and for an order of mandatory injunction against the defendant directing the defendant to forthwith demolish the entire construction put up on the suit and also to leave a set back of 10 feet on his property in accordance with FAR, to grant such other reliefs along with cost of the suit. 3 O.S.No.6146/2010
2. The case of the plaintiff is that, plaintiff is absolute owner in possession of site bearing No.11A formed out of VP khatha No.1031/5/3, house list No.5/3/11A situated at Arakere Gramathana, Begur Hobli, Bengaluru South Taluk measuring East to West 70+75/2 feet and North to South 40 feet which is suit schedule property. The plaintiff has purchased the suit schedule property under a registered sale deed vide document No.6325/1993-94 dated 29.03.1994 executed by Muniyellappa and Hutchyellappa represented by their GPA holder Zabiulla Baig, executed before the Sub-Registrar, Bengaluru South Taluk. Khatha of the suit schedule property is in the name of the plaintiff in Hulimavu Village Panchayath vide khatha No.1031/5/3. The suit schedule property is assessed in the name of the plaintiff and plaintiff has paid tax from 2008-09 to Bommanahalli City Municipal Corporation and later the suit schedule property is come under the BBMP limits and she has paid tax to the BBMP.
It is further submitted that plaintiff is house wife and her husband is engineer by profession working at Dehra, Dubai since 4-5 years and plaintiff and her husband are living at Dubai for the 4 O.S.No.6146/2010 past 5 years. Plaintiff is having one male and female child and they are residing in Bengaluru. On 11.08.2010 the plaintiff and her husband returned to Bengaluru and they are fully engaged in their family activities with very little spare time. On 19.08.2010 the plaintiff and her husband visited the suit schedule property and they were very much shocked to see construction activities being put up on the suit schedule property by unknown persons. The plaintiff enquired in the vicinity regarding the earth work carried out on the suit schedule property of the plaintiff and it was revealed by the neighbours that the construction is managed by the defendant company which is engaged in land developing and building activity. The plaintiff confronted the defendant company representative Mr. Ashrath and demanded an explanation for the construction activity, the defendant company representative silently moved out without assigning any explanation and removed himself from the scene. The masons and construction workers who are apparently from the State of Andhra Pradesh and who can only converse in Telugu language gave no information regarding the unlawful and illegal activities. 5 O.S.No.6146/2010 She attempted to invoke the intervention of the jurisdictional police, the Hulimavu police station and also lodged complaint on 21.08.2010. But the police expressed their helplessness in the matter involving a civil nature. No amount of argument that the act of the defendant is also a criminal in nature, could move the adamancy of the police in ignoring the case as civil one.
The plaintiff further submits that, they are continuously visiting the suit schedule property, but are unable to prevent or stop the unauthorised construction activity undertaken on the suit schedule property belonging to the plaintiff. They could only muster the information regarding the illegal activity that the defendant company and their representatives are behind the illegal construction and that the company has backing of the powerful political elements in the locality and the defendant's representative are presently supervising the construction of the suit schedule property belonging to the plaintiff. The defendants have put a flex board hoarding with regard to the apartment complex that is going to come up on the suit schedule property belonging to the plaintiff of which the plaintiff were till very 6 O.S.No.6146/2010 recently in possession and enjoyment of the suit schedule property. The plaintiff has also found that none of the construction workers are locals and all the labourers are from outer State. The plaintiff has exhausted all the possible remedies under her control in further preventing the illegal activities of the defendant.
The plaintiff further submits that, this Hon'ble Court has pleased to grant an order of status quo on 02.09.2010, since the defendant had started digging foundation in the suit schedule property belonging to the plaintiff and the same has been evidenced by the photos produced. Thereafter the defendant committed contempt of the Court order in erecting the pillars on the suit schedule property belonging to the plaintiff. In view of the same, plaintiff were constrained to file an application on account of the defendant committing contempt of the Court orders and sought for appropriate orders against the defendant herein for contempt of the Court proceedings. Thereafter she was compelled to go to her native in the first week of March 2011 onwards and when the plaintiff returned from her native about 7 O.S.No.6146/2010 couple of days back, to her shock and dismay, the plaintiff came to know that defendant taking advantage of the absence of the plaintiff, has put up illegal and unauthorised construction on the suit schedule property by encroaching into almost entire suit schedule property leaving hardly an extent of 4x40 feet on the western side of the suit schedule property. Immediately the plaintiff rushed to the jurisdictional police and brought to their notice the illegal and contemptuous acts played by the defendant and requested them to take immediate action, but the police have refused to take any action against the defendant on the ground that the matter is subjudice before the Hon'ble Court. The defendant has committed continuous contempt of the Court order and in respect of the contempt committed by the defendant is already pending consideration before the Court. The defendant has no right to construct apartment complex by encroaching into the suit schedule property or any portion thereof. Therefore the construction put up on the substantial portion of the suit schedule property is liable to be demolished forthwith by passing 8 O.S.No.6146/2010 appropriate orders of mandatory injunction. With these grounds the plaintiff seeks to decree the suit.
3. After service of summons, defendant has appeared before Court and has filed written statement disputing and denying the plaint averments wherein defendant has contended that, the suit as brought is not maintainable both on law and on facts. The present suit is hit by Order 30 of CPC in as much as the suit is filed in the name of wrong person. There is no proprietary concern as Niranjan Developers. The suit is liable to be rejected on this ground. However, M/s. Niranjan Developers is a partnership firm begs to submit the following written statement.
The suit for injunction is not maintainable, as the plaintiff property as alleged in the plaint is not available within Arakere Gramathana, Begur Village and Hobli. The property described in the schedule is an imaginary one and there is no property as described in the schedule to the plaint. It is also contended that, plaintiff is not the owner of the imaginary property bearing village panchayath khatha No.1031/15/3 or house list No.5/3/11-A of 9 O.S.No.6146/2010 Arakere Gramathana with measurement as alleged in para 2 of the plaint. It is also denied that plaintiff has purchased the suit schedule property from Muniyellappa and Hutchyellappa through GPA holder. It is also specifically denied that, Niranjan Developers owns property bearing khatha No1031/5/3. The allegation that the suit schedule property as alleged by Bommanahalli CMC is false. The khatha was issued on the basis of the alleged sale deed in respect of non-existing property. The payment of taxes is also to the same effect. Hence none of the document confirms any right, title or possession in favour of the plaintiff. They contended that the defendant is not knowing about the profession of plaintiff or her husband or their living at Dubai. So also their family details as alleged in para 4 of the plaint. It is not known to the defendant that when the plaintiff and her husband returned to Bengaluru and what way they are engaging. It is also submitted that, the defendant is not know about plaintiff's visit to the suit schedule property and they were shocked to see the construction going on the property. It is also denied that, on revelation by the neighbours, plaintiff has came 10 O.S.No.6146/2010 to know about the construction by the defendant. It is also contended that the plaintiff never met any of the representatives of the defendant, the question of confirmation by the plaintiff does not arise. They have also denied with regard to lodging police complaint and it is contended that suit of the plaintiff is not maintainable and the suit is barred by limitation.
It is further submitted that, M/s. Niranjan Developers is a registered partnership firm engaged in the business of construction and development of property. The partnership firm entered into a joint development agreement with Smt.Lakshmamma and others in respect of the property bearing BBMP khatha No.158/151/136/1/5/2 situated at Arakere in converted Sy.No.5/2. The khatha certificate, conversion order, demand register extract maintained by BBMP is also produced. The plaintiff now making illegal claim against the above said property contending that it is khatha No.11-A. The property in which M/s. Niranjan Developers developing is with the measurement of 18560 sq.ft. with the boundaries: East by Road, West by Land of Lankappa, North by remaining portion of 11 O.S.No.6146/2010 Sy.No.5/2 and South by Property of Gullamma. The property claimed by the plaintiff is nothing to do with the property which is now under construction and the property of the plaintiff is entirely different where construction is being carried out by Niranjan Developers and the defendant has already put up construction of ground floor, first floor and construction is under progress for further floors as per the sanctioned plan. Further there are third party interest is also created on the property for which the Developer entered into sale agreement for selling the flats in favour of the third parties. The defendant will be put to greater hardship and inconvenience, if any order is passed. The defendant has already in possession by putting construction and invested several lakhs of rupees on construction, plan, payment of license fees, etc. The defendant has also engaged contractors, laborers, engineers and in the event there being stoppage of construction, the defendant is answerable for damages to the said parties. There is no merit on the suit and the admitted facts goes to show the suit in the present form is not maintainable and 12 O.S.No.6146/2010 infructuous. With these and other grounds defendant seeks to dismiss the suit.
4. On the basis of the above pleadings, my predecessor has framed the following issues on 01.12.2016:-
1. Whether the plaintiff proves that she is in lawful possession of the suit property as on the date of suit?
2. Whether the plaintiff further proves any sort of interference to her possession of the suit schedule property?
3. Whether the plaintiff proves that the defendant was put up the construction un-
lawfully in the suit schedule property?
4. Whether the plaintiff is entitled for mandatory injunction as per the prayer (b) made in the plaint?
5. What order or decree?
5. To prove the plaint averments, plaintiff examined herself as P.W.1 and filed chief examination affidavit reiterating the plaint averments and Ex.P.1 to P.34 are marked. Ex.P.1 is the sale deed dated 29.03.1994, Ex.P.2 is assessment register extract, Ex.P.3 is self assessment tax extract, Ex.P.4 to P.15 are 13 O.S.No.6146/2010 tax paid receipts, Ex.P.16 to P.23 and P.25 to P.28 are photos and Ex.P.24 and P.28 are CD, Ex.P.30 to P.33 are tax paid receipts and Ex.P.34 is encumbrance certificate.
On behalf of the defendant, one Mr. Ashrith is examined D.W.1 and Ex.D.1 to D.9 are marked. Ex.D.1 is joint development agreement dated 21.11.2008, Ex.D.2 is registered GPA dated 26.11.2008, Ex.D.3 is certified copy of partition deed dated 13.12.2004, Ex.D.4 is reply letter issued by BBMP Ex.D.5 is certificate issued by BBMP, Ex.D.6 is building licence, Ex.D.7 is blueprint, Ex.D.8 is letter issued by the bank dated 15.10.2018, Ex.D.9 is true copy of the reconstitution deed dated 28.06.2013.
6. Learned counsel for plaintiff filed written arguments. Learned counsel for defendant submitted his arguments contending that suit filed by the plaintiff against the defendant is not correct and it is barred under Order 30 of CPC since defendant is partnership concern and in the plaint it has been shown as proprietory concern. He further argued except the sale deed, plaintiff has not produced any other documents to show the 14 O.S.No.6146/2010 title and plaintiff has also not produced documents to show the vendors of the plaintiff were owners of the suit schedule property and Ex.P.1 which is sale deed executed by GPA holder of the vendors and the GPA is not produced before Court. After the amendment of the suit, plaintiff has sought for mandatory injunction only. But plaintiff has not sought for any sort of declaration and possession of the suit schedule property and when there is cloud over the title of the property, the plaintiff should have file suit for declaration and possession and mandatory injunction. Apart from that, he has also contended that, suit schedule property and the property of the defendant are entirely different and the plaintiff having document of some property is seeking the property of the defendant and defendant is only a developer of the land and original owners of the land are not made as parties and in the absence of the original owners the suit is not maintainable. He has also contended that plaintiff has clearly admitted after the amendment that she is not in possession of the suit property. Hence mere suit for injunction is not maintainable. With these grounds and other grounds, he 15 O.S.No.6146/2010 seeks to dismiss the suit. Along with his arguments he has also relied upon the following decisions:
1. AIR 1964 SC 581
2. AIR 1990 Rajasthan 49
3. AIR 2008 SC 2033
4. ILR 2006 KAR 3122
5. 2017 (4) KCCR 3144
6. AIR 2006 SC 1971
7. ILR 2008 KAR 672.
7. Having heard the arguments and perused the records my answer to the above issues are:-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the negative Issue No.5: As per final order, for the following:-
REASONS
8. Issue No.1:- Initially suit was filed by the plaintiff for the relief of permanent injunction against the defendant, his 16 O.S.No.6146/2010 agents, workmen or any person claiming under him from interfering with the peaceful possession and enjoyment of the suit schedule property and also for an order of mandatory injunction directing the defendant not to put up any illegal construction on the suit schedule property. Later on the plaintiff made amendment to the plaint as per I.A.No.3 and after the amendment, plaintiff has inserted para 8(a) and the relief of mandatory injunction to direct the defendant to demolish the entire construction put up on the suit schedule property by leaving a set back of 10 feet on his property in accordance with FAR.
9. On appreciation of the entire pleadings, it is very much clear that the plaintiff is claiming the property on the basis of the sale deed produced at Ex.P.1. The said sale deed is said to have been executed by one Mr.Zabiulla Baig on 29.03.1994 as a GPA holder of Muniyellappa and Hutchyellppa in respect of site No.11A out of V.P. Khatha No.1031/5/3, house list No.5/3/11A measuring 70 + 75/2 feet x 40 feet bounded east by property of Hutchyellappa, west by road, north by Muniyellappa's property 17 O.S.No.6146/2010 and south by site No.10A. As rightly contended by the learned counsel for defendant, plaintiff has only produced Ex.P.1 and plaintiff has not at all produced the GPA of Mr. Zebiulla Baig, upon which he has executed the sale deed. Other documents i.e., Ex.P.2 to P.15 and P.33 and P.34 are the revenue documents, which will not show title of the plaintiff. It is well established principle of law that revenue documents are not the title documents and that cannot be basis for the formation of opinion with respect to the title. In this case except producing the sale deed, plaintiff has not produced any other records to show that her vendors Muniyellappa and Hutchyellappa were owners of the suit property and even she has not produced the GPA copy of the GPA holder Mr. Zabiulla Baig.
10. Since there is allegation of encroachment by the defendant, it is necessary to compare the boundaries of the joint development agreement dated 21.11.2008, which is produced at Ex.D.1 which is entered into by Smt. Lakshmamma, Murthy and Chandramma with the defendant in respect of the property bearing Sy.No.5/2, Corporation old No.158, New 18 O.S.No.6146/2010 No.151/136/1/5/2 measuring 248 feet x 75 feet bounded with east by road, west by Lankappa's property, north by remaining portion of the same property and south by 'A' schedule property. The said persons have acquired the property under the partition deed dated 13.02.2004 which is produced at Ex.P.3. The said partition was entered between Smt.Gulamma and Ramappa. The said Gullamma is none other than wife of Hutchyellappa. Said Lakshmamma, Murthy and Chandramma are legal heirs of said Ramappa. On comparison of the property covered under joint development agreement and Ex.P.1, both are not situating adjacent.
11. Apart from that, since it is an injunction suit, plaintiff must prove the possession of the property as on the date of filing the suit. During cross-examination, P.W.1 has clearly admitted at para No.19, page 7 that:
"It is true to suggest that the structure of the building found in Ex.P.26, photograph was completed before filing the suit."19 O.S.No.6146/2010
The clear cut case of the plaintiff is that, defendant has encroached upon the suit schedule property. This clear cut admission reveals that as on the date of fling the suit, she was not in possession of the property. Even otherwise, the plaintiff herself by making necessary application for amendment has made amendment to the plaint by inserting para 8(a) wherein she has categorically stated that:
"When the plaintiff returned from her native about a couple of days back, to her shock and dismay, the plaintiff came to know that, the defendant taking advantage of the absence of the plaintiff, has put up illegal and unauthorised construction on the schedule property by encroaching into almost entire suit schedule property leaving hardly an extent of 4x40 feet only on the western side of the suit schedule property."
This admission coupled by oral admission and photographs, it is clear that plaintiff was not at all in possession of the property as on the date of filing the suit.
12. Apart from this, defendant claims the suit schedule property is belonged to Lakshmamma, Murthy and Chandramma, 20 O.S.No.6146/2010 which they acquired under the partition deed dated 13.02.2004, which is produced at Ex.D.3. But whereas P.W.1 in her cross- examination has admitted at page No.5 that:
"Till this date, I do not have any document showing that suit site No.11A was belonging to Muniyellppa and Hutchyellappa."
When the plaintiff claims she is owner of the property and by virtue of the same she is in possession of the property, it is bounden duty of the plaintiff to produce the documents to prove her title and possession over the suit property. But in this case there is clear cut dispute between the plaintiff and defendant with respect to the title and without any doubt property is in possession of defendant, which has been constructed by the defendant, plaintiff should have file the suit for declaration to clear the cloud over her title and for possession of the disputed property, since she only admits that defendant has constructed the building, then she should have ask for mandatory injunction for demolition of the building stated to have been constructed in the disputed property. But the plaintiff without taking the risk 21 O.S.No.6146/2010 just has come before the Court only for the relief of permanent injunction and later on she has sought for mandatory injunction without the relief of declaration and possession. I am of the opinion that plaintiff has miserably failed to prove her lawful possession over the suit property as on the date of filing the suit. Hence issue No.1 is held in the 'negative'.
13. Issue No.2:- When issue No.1 is held in negative against the plaintiff for the simple reason, plaintiff has failed to prove her lawful possession over the suit property, the question of interference does not arise. Hence issue No.2 is held in the 'negative'.
14. Issue No.3:- While answering issue No.1, this Court has already considered that the plaintiff has produced Ex.P.1 to prove her title over the suit property. Even without producing the title document of her previous vendors and the important document, i.e., GPA of Zubiulla Khan, who is stated to be GPA holder of Muniyellappa and Hutchyellappa. But on the other hand, the defendant has produced Ex.P.3 which is partition deed 22 O.S.No.6146/2010 and under the said partition deed 'B' schedule property which is covered under Ex.D.3 was allotted to the share of Ramappa and the legal heirs of Ramappa have entered into joint development agreement with the defendant, which is produced at Ex.D.1 and Ex.D.6 which is building licence issued by the concerned authority for construction and Ex.D.7 is blue print. When the plaintiff has failed to prove the property covered under Ex.P.1 and Ex.D.1 are one and the same and when the plaintiff has not proved the encroachment and when there is clear cut cloud over the title of the plaintiff, it cannot be held that the construction carried out by the defendant is unlawful. Hence issue No.3 is held in the 'negative'.
15. Issue No.4:- As I have already stated, when there is clear cut cloud over the title of the plaintiff and since plaintiff has not produced the title documents of her vendors and the GPA of Zabiulla and her admission during cross-examination that she has no title document to show that her vendors are the owners of the suit property and when the plaintiff has failed to prove that the defendant has encroached and construction made over the 23 O.S.No.6146/2010 property is unlawful and more particularly when the plaintiff has filed bare injunction suit when there is clear cut cloud over title, without seeking the relief of declaration and possession, the plaintiff is not entitled for mandatory injunction. Hence issue No.4 is held in the 'negative'.
16. The decision relied upon by the learned counsel for defendant reported in AIR 2008 Supreme Court 2033 (Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. and ors) is aptly applicable to the facts of the case, when the plaintiff has not sought for the relief of declaration and possession.
Another decision reported in ILR 2006 KAR 3122 (G.Venkataramaiah and another vs. C. Kempaiah since dead by L.Rs. and others) is aptly applicable to the facts of the case, as plaintiff has not sought for declaration and possession.
Another decision reported in 2017 (4) KCCR 3144 (Smt. Sathyamma vs. Smt. Kempamma) is also in the same line of 24 O.S.No.6146/2010 the above decisions and has also come to the aid of the defendant.
17. Issue No.5:- In view of my findings on the above issues, I proceed to pass the following:-
ORDER The suit of the plaintiff is dismissed.
No order as to cost.
Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 27th day of November, 2019.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY SCHEDULE All that piece and parcel of site property bearing House site No.11A formed out of V.P. Khatha No.1031/5/3, House List No.5/2/11A situate at Arakere Gramathana Begur Hobli, 25 O.S.No.6146/2010 Bengaluru South Taluk, measuring East to West by (70 '+75')/2 and North to South by 40 feet, and bounded on:
East by: Hucheyellappas' remaining portion property West by: Road North by: Muniyallappa's property South by: Site No.10A The built area is one square with A/C roof house ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Smt. Usha Gupta
(b) Defendant's side :
D.W.1: Ashrith B.R.
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Sale deed
Ex.P.2 to Tax paid receipts
P.15:
Ex.P.16 to 8 photographs
P.23:
Ex.P.24: CD
Ex.P.25 to Photographs
P.28:
Ex.P.29: CD
26 O.S.No.6146/2010
Ex.P.30 to Tax challans
P.32:
Ex.P.33: 6 tax paid receipts
Ex.34: Encumbrance certificate
(b) Defendants side :
Ex.D.1: Joint development agreement dated
21.11.2008
Ex.D.2: Registered GPA dated 26.11.2008
Ex.D.3: Certified copy of partition deed dated
13.12.2004
Ex.D.4: Reply letter issued by BBMP dated
29.05.2008
Ex.D.5: Certificate issued by BBMP dated
29.05.2008
Ex.D.6: Building licence issued by BBMP dated
07.11.2008
Ex.D.7: Blue print
Ex.D.8: Letter issued by the bank dated
15.10.2018
Ex.D.9: True copy of the reconstitution deed dated
28.06.2013
XII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.