Bangalore District Court
Sri.Y.Nagaraj S/O Sri.N.Yellareddy vs Smt.Muniyamma W/O Govinda Reddy on 18 November, 2020
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS.No.15140/2005
Dated this 18th day of November 2020
Plaintiff:- Sri.Y.Nagaraj S/o Sri.N.YellaReddy,
Aged about 48 years, R/at No.84,
20th Main, 4th "A" Cross,
B.T.M.1st Stage, Bangalore-560 079.
(Rep by Sri.RAD Advo)
V/S
Defendant:- Smt.Muniyamma W/o Govinda Reddy,
Major, R/at.No.37(new No.2) 19th Cross,
29th Main Road, Madivala Village,
Begur Hobli, Bangalore.
(Rep by Sri.ANL Advo )
Date of Institution of the suit 15/01/2005
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.)
Permanent Injunction
Date of the commencement of recording of the Evidence. 28/01/2009
Date on which the Judgment was pronounced. 18/11/2020
Year/s Month/s Day/s
Total duration 15 10 03
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
.
Mayohall Unit: Bengaluru
2
Judgment O.S.No. 15140/2005
:JUDGMENT:
The plaintiff filed suit against the defendant for permanent injunction.
2. The brief facts of plaint averments is as under:
The plaintiffs submit that Sy.No.77/3 (New) Old No.77 measuring 2 acres 5 guntas situated at Madivala Village, Begur Hobli, Bangalore-South Taluk originally belongs Krishnappa and others. The said erstwhile owners on sold the said property on 27/03/1969 in favour of defendant No.1 R.N.Subramnya by executing registered sale deed bearing document No.5916/68-69 in the office of the Sub-Registrar, Bangalore-South Taluk and placed him in actual possession of the same. The defendant No.1 R.N.Subramanya herein having had purchased as aforesaid the entire extent of Sy.No.77/3(New), Old No.77, in order to form a residential layout in the name and style of "Raghavendra Layout" formed 47 sites with two rows of 3 Judgment O.S.No. 15140/2005 sites eachon one side and a single row of sites on the other by leaving 25 feet width road running from West to East in between them, so as to sell the same to the interested person. The said proposed lay-out plan showing the location and details of each site was got approved as required to under law with the Administrator, Madivala Grama Panchayat, Bangalore-South and the said Authority has sanctioned the same in No.VPC 52/92-93. The defendant No.1 R.N. Subramanya having got the plan sanctioned as per document No.1 on 14/06/1980 executed an agreement of sell site bearing No.31 measuring East to West 26.5 feet and North to South 50 feet comprised in Sy.No.77/3(New), Old No.77 in favour of Devaraj Reddy S/o Malla Reddy by receiving consideration amount of Rs.16,500/- and placed him in possession of the same and said property is bounded by East: Remaining property of the vendor, West:Site No.30, North:Vacant space, South:Road.4
Judgment O.S.No. 15140/2005
3. The plaintiff further submits that on the day of execution of of agreement of sale the defendant No.1 R.N.Subramanya herein executed General Power of Attorney in respect of the very property by assigning various powers to be exercisable by the said prospective purchaser. The defendant No.1 R.N.Subramanya herein also hands over an affidavit duly sworn to regarding confirmation of sale and receipt of total sale consideration and thereby the defendant No.1 R.N.Subramanya thus conveyed right and interest over the aforesaid property in favour of the said Devaraj. The said M. Devaraj (agreement holder) with an intention to take out construction of site No.31 and which property comes within the jurisdiction of Madivala Grama Panchayat then obtained licence on 22/03/1984 and no-due certificate from the said Panchayat on 22/03/1994 and No-objection certificate for the purpose of obtaining water supply and electricity and the sanctioned plan. The said M.Devaraj before obtaining necessary 5 Judgment O.S.No. 15140/2005 permission for construction of house got mutated mutated in his name in the Madival Gram Panchayat. The defendant No.2 R.N.Subramanya on 19/04/2003 executed registered sale deed through said Devaraj in favour of Poornima K W/o K.N.Bhimesha for valuable sale consideration under registered sale deed registered in the office the Sub-
Registrar, Bangalore -South Taluk and placed the said purchaser in the possession of Site No.31. To the said Sale Deed the defendant No.2 R.N.Subramanya affixed signature as consenting witness. The said Poornima sold said property in favour of A Govindaraj S/o V Appaiah on 17/03/2004 by executing a registered sale deed in the office of the Sub- Registrar, Jayanagar, Bangalore and placed him in possession of the same.
4. The plaintiff further submits that the said A.Govindaraj sold the site No.31 in favour of defendant No.2 on 20/06/2004 by executing registered sale deed before the 6 Judgment O.S.No. 15140/2005 Sub-Registrar, Jayanagar, Bangalore City and placed in the said plaintiff in possession of site No.31 together with 2 squares of A.C.C. roofing have constructed with hollow bricks. In view of mistake having being crept in the sale deed dated 20/06/2004 regarding description of the property instead of No.31 it has been described wrongly as No.13 on Page No.2 of the registered deed and hence, a rectification deed came to the executed by his vendor on 23/02/2005 and same has been registered in the office of the Sub-Registrar, Jayanagar, Bangalore City as document bearing No.6590 on 23/02/2005.
5. The plaintiff further submits that after purchase and having come into the possession taken out construction of 1½ squares construction of asbestos roofing and he is in possession of the same. That defendant No.2 has been in possessory enjoyment of the schedule property being in his own right as a lawful owner deriving lawful right, title and 7 Judgment O.S.No. 15140/2005 interest and apart from him there is no other person who have any semblance of right, title and interest. The defendant is a person who have semblance of right, title and interest filed a false suit in O.S.No.14179/2004 before the Additional City Civil Judge at Mayohall, at Bangalore (CCH-22) against one R.N.Subramanya claiming a decree for permanent injunction in respect of site No.37 by giving the boundary of schedule property on the ground that the said R.N.Subramanya is a defendant is trying to interfere with the possession of the house property built on schedule property and by suppression of facts obtained on ex-parte order of temporary injunction on 17/12/2004 even though, said R.N.Subramanya the defendant herein is nothing to do either with Site No.37 or that the schedule property. On the basis of the said order of injunction the defendant is building pressures upon the police to see that the plaintiff is unlawfully dispossessed from the schedule property. He reported the matter to the S.H.O, Mico Layout Police 8 Judgment O.S.No. 15140/2005 station, BTM layout, Bangalore on 20/12/2004 and police refused to give aid to him on the ground that the same matter is of civil nature and also the defendant has obtained an ex-parte order of injunction in O.S.No.17419/2004. Hence he constrained to file this suit.
6. The plaintiff further submits the cause of action to file the suit arose on 17/12/2004 when the defendant filed false suit in O.S.No.17419/2004 against R.N.Subramanya before the City Civil Judge, at Mayohall at Bangalore and also on 20/10/2004 when he has given complaint to the jurisdiction police against defendant herein for her illegal interference. The plaintiff prays to decree the suit for permanent injunction restraining the defendant or her men or any body else on her behalf from causing interference with regard to peaceable and possessory enjoyment of the suit schedule property by her. The plaintiff prays to award 9 Judgment O.S.No. 15140/2005 costs of the suit. The plaintiff the narrated the suit schedule property in the schedule as under.
:Suit Schedule Property:
All the part and parcel of the site bearing No.31 old katha No.77/3, New No.31/77/3, new Katha No.270, situated at Madivala Village, Begur Hobble, Bangalore-South Taluk, which comes under Bangalore Mahanagara Palike Ward No.65, Bangalore measuring East to West 24 ft and North to South 50 ft bounded by East: Remaining property of Sy.No.77/3, West:Site No.30, North:
Vacant space and temple, South:25 ft Road.
7. The defendant has filed written statement submitting that the suit of the plaintiff is not maintainable either in law or on facts. The defendant submits there is no need to comment on paras No.1 and 2 of plaint. The defendant 10 Judgment O.S.No. 15140/2005 submits para No.3 of plaint may be true. The defendant denied the plaint para No.4 that Kannaiah Naidu, G.P.A. holder of R.N. Subramanya has formed Raghavendra layout and totally formed 47 sites and same was approved by the Madiwala Grama Panchayath, Bengaluru. The defendant denied plaint para No.5 and 6 that R.N. Subramanya has got plan sanctioned on 14.6.1980 and execute the site No.31 measuring East to West 26.5 feet and North to South 50 feet comprised in new Sy.No.77/3, old Sy.No.77 for Rs.16,500/- infavour of Devaraj Reddy S/o Mallareddy has put in possession of the said property The defendant denied the plaint para No.7 to 9 of the plaint that before getting sale deed in the name of Devaraj has obtained power and electricity in the suit property. The original sale deed executed on 19/04/2003 by R.N. Subramanya through power of attorney holder Devaraj in favour of Poornima. On the other hand said R.N. Subramanya had executed the sale deed in favour of defendant Muniyamma on 11 Judgment O.S.No. 15140/2005 18/04/2002. the boundaries of the plaintiff and defendant in the suit are not tallying. Further the Court Commissioner has to be appointed for investigation of the alleged plan produced as document in the above suit. R.N. Subramanya entered agreement of sale on 14/06/1980, executed GPA on 14/06/1990, sale deed dated 19/04/2003 agreement and GPA is 10 years gap, agreement and sale deed 23 years gap. It is admitted fact that R.N.Subramanya filed original suit against BDA on 27/06/1983 and it was decreed on 04/08/1983 and in the said suit R.N. Subramanya has executed the GPA in favour of Kannaiah Naidu and said Kannaiah Naidu deposed evidence on behalf of the R.N. Subramanya. Hence nothing prevented to R.N. Subramanya could have given GPA and conducted the case on behalf of R.N. Subramanya. Hence the sale deed dated 19/042003, 17/03/2004, 30/06/2004 are not binding on the defendant. Neither Devaraj nor poornima, A. Govindaraj present, plaintiff is/was not in possession and enjoyment of the suit 12 Judgment O.S.No. 15140/2005 property up to 18/04/2002, after execution of sale deed by R.N. Subramany in favour of the defendant, she is in lawful and peaceful possession and enjoyment of the suit schedule property.
8. The defendant denied the plaint paras No.10 to 13. The averments of para 14 of the plaint that the defendant filed suit in O.S.No.14179/2004 before this court against R.N. Subramanya claiming decree for permanent injunction in respect of site No.37 by giving boundary and schedule property as 37 is true, but the plaintiff is showing some other boundary and dispossess the defendant from the suit schedule property on 24/12/2004, and based on the influence made by Devaraj, R.N. Subramanya, Shivaramaiah, Sub-Inspector of Mico layout police are all dispossessed the defendant and her family from the suit schedule property by taking law into their own hands. Against Devaraj and R.N. Subramanya CC.No.241/2004 is 13 Judgment O.S.No. 15140/2005 pending before the Additional City Civil Judge Bengaluru CCH No.17. The defendant has given the boundary of the plaintiff and defendant. The date of execution of sale deed that the property of the plaintiff is Site No.31, old katha No.77/3, new property No.31/77/3, New katha No.270 measuring East to West: 24 feet North to South - 50 feet building measurement AC sheet roofing house, constructed with brick and mud walls, mud flooring, doors and windows made out of jungle wood, with All civic amenities. Date of execution of sale deed dated 19/04/2003, 17/03/2004 and 30/06/2004 and the said property is bounded by East:
remaining portion of the same property, West: site No.30, North to South: Vacant space, suit road. The property of the defendant is No.37 (New No.2) katha No.77/3 measuring East to West: 25 feet and north to south: 52 feet, 1 ½ square A.C. Sheet roof house built thereon consrtucted with mud and bricks, jungle wood doors and windows, mud flooring and there is no civil amenities and the sale deed 14 Judgment O.S.No. 15140/2005 executed on 18/04/2002 and property is bounded by East:property belongs to Vendor and Mamatha, West:
property belongs to Prakash, North:remaining portion of same property now in possession of Ramanath, South: Road.
9. The defendants submits that the suit of the plaintiff is non-joinder and mis-joinder of necessary parties, Devaraj and R.N. Subramanya are the necessary parties in the suit. The suit filed against the vendor R.N.Subramanya in O.S.No.17419/2004 and as such the suit is pending for consideration. It is admitted fact that R.N.Subramanya filed injunction suit against the BDA in O.S.No.1805/1983 and same was decreed. Nothing is prevented to conduct the suit to Devaraj in view of agreement to sell dated 14/06/1980. It is admitted fact that the time is for enforcement of the agreement of sale is three years but in the above case 23 years gap to execute the sale deed in favour of K. Poornima. 15
Judgment O.S.No. 15140/2005 R.N. Subramanya has taken out the paper publication in the year 2003-04 nowhere it is mentioned the name of G.P.A. holder from Devaraju. R.N. Subramanya filed injunction suit against Ckannaiah Naidu in O.S. No. 8199/97 before the Addl. City Civil Judge bengaluru and in the said suit Kannaiah Naidu filed the written statement. Even in the said suit nothing prevented Devaraj could have appeared in the case as a GPA holder of the said R.N. Subramanya. Both R.N. Subramnya, Devaraj and A. Papanna have given representation to the Madiwala Revenue Officer stating that all the three persons are absolute owners of some sites. The defendants submits that they have no school existence in Sy.No.77/3 as alleged in the plan. Hence plaintiff has to implead Subramanya and Devaraj as necessary parties to this suit and plaintiff has produce the sale deeds, GPA's agreements etc., The suit of the plaintiff is highly vexatious, mischievous and suppress the material facts and furnished the boundaries of site No.37 in order to obtain an order of 16 Judgment O.S.No. 15140/2005 relief. In the month of March/April 2002 R.N. Subramanya lodged complaint against Jagannath @ Jaggu, Raju and Ananth resident of Sampangiram Nagar, Gurappana Palya and Shanthinagar alleging that they obtained forcible signature on certain documents etc., are all these alleged facts and circumstances Govindareddy was the eye witness. There is no cause of action for the suit and documents produced by the plaintiff are all created. The plaintiff is entitle for the relief. The defendant prays to dismiss the suit of the plaintiff with exemplary costs.
10. The plaintiff amended the plaint and added para No.11 (A). Thereafter the defendant filed additional written statement on 07/06/2013 submitting that the averment made in para No.11(A) that in view of mistake having been crept in the sale deed dated 20/06/2004 regarding the description of the property instead of No.31, it has been described wrongly as No.13 on para No.2 of the registered sale deed, 17 Judgment O.S.No. 15140/2005 hence a rectification deed came to be executed by vendor of the plaintiff on 23/02/2005 and same has been registered as document No.6590 on 23/02/2005 is false. In order to make wrongful gain the said document is created for the purpose of this suit. The defendant prays to dismiss the suit of the plaintiff with costs.
11. On the basis of above pleadings following Issues are framed.
:ISSUES:
(1) Whether the plaintiff proves his lawful possession over the schedule property as on date of the suit?
(2) Whether the plaintiff proves alleged obstructions?
(3) Whether plaintiff is entitled to the relief claimed?
(4) What order?18
Judgment O.S.No. 15140/2005
12. The plaintiff is examined as PW1 and marked documents at ExP1 to ExP19 and closed the plaintiff side evidence. The GPA holder of defendant examined as DW.1 and marked ExD1 to ExD18 and closed defendant side evidence.
13. The plaintiff counsel argued and filed memo with citations. The defendant counsel argued and filed written arguments. Perused the records.
14. My findings to the above issues are as under:-
Issue No.1) In Negative Issue No.2) In Negative Issue No.3) In Negative Issue No.4) See final order for following :REASONS:
15. Issues No.1 to 3:19
Judgment O.S.No. 15140/2005 The plaintiff Y. Nagaraj S/o N.Yellaredy filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that Sy.No.77/3 (New) Old No.77 measuring 2 acres 5 guntas situated at Madivala Village, Begur Hobli, Bangalore-South Taluk originally belongs Krishnappa and others. That on 27/03/1969 by executing sale deed they conveyed the said property in favour of one R.N.Subramnya and placed him in actual possession. The said R.N.Subramanya after purchase formed layout called Raghavendra Layout by forming 47 sites with two rows of sites by leaving 25 feet width road between rows from West to East. The PW.1 further deposed that the said proposed lay-out plan was approved by the Madivala Grama Panchayat, Bangalore-South taluk and sanctioned the same in No.VPC 52/92-93. The PW.1 further deposed evidence that on 14/06/1980 the said R.N.Subramanya by executing an agreement to sell a site bearing No.31 East to West 26.5 feet and North to South 50 feet and by receiving Rs.16,500/- 20
Judgment O.S.No. 15140/2005 being the total consideration in favour of Devaraj Reddy S/o Malla Reddy and placed him in possession and the said property is bounded by East: Remaining property of the same Survey number, West:Site No.20, North:Vacant space, South:Road. The PW.1 further deposed that on the day of sale itself he was placed in possession of suit schedule property and later taken out construction of 1½ squares of asbesteous roofing. The PW.1 further deposed evidence that he has been in posseessory enjoyment of said property. He has leased two portions of the house property in favour of one Sampoornamma and anthoer one Udaykumar on monthly rental basis and he has been collecting rents from them and there is a vacant space in its front which is lying vacant. The PW.1 further deposed evidence that the defendant herein has also filed suit in O.S.No.14179/2004 before the Additional City Civil Judge at Mayohall at Bangalore (CCH-22) against one R.N.Subramanya claiming decree for permanent injunction in respect of site No.37 by 21 Judgment O.S.No. 15140/2005 giving the boundary of site No.31 and obtained an order of exparte ad-interim injunction and later, said interim order was modified into an order of status-quo. In the said suit of lately she has been impleaded as a party as defendant No.2.
The PW.1 further deposed evidence that the defence filed by the defendant contending that she is the absolute owner of the suit schedule property in possession on the basis of sale deed executed by one R.N.Subramanya on 18/04/2002 is false and the said sale deed relates to site bearing No.37 measuring East to West 25 feet North to South 25 feet. The PW.1 further deposed that when the defendant as a plaintiff having obtained an injunction in the said suit tried to interfere with possession and he lodged a complaint with the Mico-layout police on 20/12/2004 and who refused to protect on the ground that the matter is in civil nature. The PW.1 further deposed that in view of filing of the above suit by the defendant on 17/12/2004 and interference on 20/12/2004 was cause of action for him to file this suit. The 22 Judgment O.S.No. 15140/2005 PW.1 further deposed that the defendant has no manner of right, tittle and interest over the schedule property and part from himself, non-else has the right and interest over the same. The PW.1 prays to decree the suit as prayed. In support of oral evidence PW.1 marked the documents ExP1 to ExP15.
16. There after on 03/04/2018 the plaintiff/PW.1 filed his affidavit in lieu of additional evidence as examination in chief and deposed evidence that the said M.D.Devaraj Reddy transferred the schedule property in favour of Poornima W/o K.M.Bheemesha on 19/04/2003 through said M. Deveraj and vest the possession of the same to her. That on 17/03/2004 said Poornima re transfered the schedule property in favour of Govindaraj S/o V. Appaiah through registered document of sale and transferred the possession along with right, title and interest. The said Govindaraj on 20/06/2004 transferred the schedule property in his favour 23 Judgment O.S.No. 15140/2005 along with 2 squares ACC Roof construction and put him in possession of the property. In view of mistake having been crept in the sale deed executed by A.Govindaraj in his favour regarding mis-description of property number as 13 instead of 31, a rectification deed was executed by his vendor on 23/02/2005 to correct the mistake. That the suit filed by the defendant in OS.No.17140/2004 against him and R.N. Subramanya for decree of permanent injunction in respect of site bearing No.37 suffered an order of dismissal for default as the present defendant who is plaintiff in the said suit did not lead evidence on main. That Miscellaneous petition No. 25090/2011 filed to seek set-aside the dismissal of the suit in OS.No.17140/2004, the said Miscellaneous petition after conduct came to be dismissed on merits during the month of December 2017. The PW.1 prays to decree the suit as prayed in the plaint. 24
Judgment O.S.No. 15140/2005
17. The General Power of Attorney holder of defendant Govinda Reddy S/o Lakshman Reddy filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that defendant is his wife and she is suffering from Asthma since more than 15 years and she under regular medication and is unable to attend the case and depose. Hence she has executed General Power of Attorney in his favour to conduct this suit and give evidence. The DW.1 further deposed that R.N.Subramanya, being the absolute owner of the property bearing Sy.No.77/3 has formed sites and sold the sites to prospective purchasers, among them his wife is also one of the purchasers of the site/property site No.37, New No.2, a portion of old site No.1/1, 19 th cross, 29th Main Road, Madiwala Village, Begur Hobli, Bangalore South Taluk, Bangalore District under the registered sale deed dated 18/04/2002 which is registered as Document No.77/2002-03, stored in CD No.73/2002-03 for valid consideration and put his wife in physical possession of the 25 Judgment O.S.No. 15140/2005 said property in favour of his wife, her vendor R.N. Subramanya has assured that he has not entered into any agreement or GPA with any third party and thus, he has put the defendant herein in actual, physical, lawful possession of the said property described in the schedule given hereunder with existing 1 ½ squares AC roofed structure. There upon a small ACC roofed house for storing material was also put up. The said site is situated on 9th cross, 29th main road, Madiwala Village, begur Hobli, Bangalore South Taluk, now called as BTM Layout II Stage. The Dw.1 further deposed that himself, his wife and his family members have been in peaceful, lawful, physical possession and enjoyment by actually residing therein from the date of the sale deed dated 18/04/2002. However the said P.N Sumramanya along with the plaintiff in the above case whose identify we not at all aware at that time and other anti social elements came near the suit schedule property on 11/12/2004 and tried to interfere with their lawful possession and enjoyment 26 Judgment O.S.No. 15140/2005 of the property. Immediately, his wife and he approached the jurisdictional BTM Layout police, who advised us to approach the Civil Court. Having no alternative remedy, they have filed a suit in O.S No.17419/2004 before this court and this court was pleased to grant an interim order of temporary injunction on 17/12/2004. Despite granting the said interim order of injunction by this court, the said R.N. Subramanya along with the plaintiff herein the their supporters and anti-social elements tried to dispossess us illegally. He and his wife, the defendant herein, have approached the MICO layout police on 20/12/2004 along with the interim order of this court in O.S No.17419/2014 and the said Police Authority have given endorsement while receiving the said complaint. Again on the same day evening i.e. 20/12/2004 at about 4.30 to 4.45 pm the said R.N. Subramanya along with the plaintiff in the above case backed by goonda and anti social elements in the presence of police authorities have thrown out all their belongings, 27 Judgment O.S.No. 15140/2005 household articles to the road, the above said persons manhandled them besides abusing them with unparliamentary language, when questioned by his eldest son Manjunath by showing interim order passed by this court, but the aforesaid persons with the active support of the police official Shivaramaiah have illegally and in high handed manner physically thrown them to the street by throwing all out household articles and belongings. Thereafter on 22/12/2004 on their grievances to the Inspector of Police, the said Madiwala Circle Inspector of Police included him, his wife and his family members into the house existing on the schedule property. However again on 24/12/2004 at 3.30 PM, Shivaramaiah, Sub-Inspect of Police of MICO Layout Police Station along with his (PW.1) wife's vendor R.N.Subramanaya, the plaintiff herein and their henchmen have again dispossessed them besides a stolen all their belonging worth Rs.20,000/- and they immediately approached the Commissioner of Police by 28 Judgment O.S.No. 15140/2005 filing a complaint and seeking Redressal of their grievance, the Commissioner of Police has referred their complaint to the Assistant Commissioner of Police, Madiwala. However, the said authority have not protected them and his family members and their property. Hence she has filed an application before this court in OS.No.17149/2004 seeking for appointment of commissioner, this court directed the Madiwala Police to look into the complainant dated 24/12/2004 and given by his wife being the plaintiff in the said suit in OS.No.17419/2004 and to seek that the ex-parte interim order of injunction granted on 17/12/2004 is complied with and adjourned the matter to 17/03/2005. There after the matter being adjourned from time to time. However on 09/02/2005 the Assistant Commissioner of Police, Madiwala has submitted a report to this court in the said suit regarding inspection particulars made by him on the spot. Based on the said report this court has modified the earlier order by directing both the parties to maintain 29 Judgment O.S.No. 15140/2005 status quo till disposal of IA No.1 on merit. The said order was passed on 09/02/2005. The entire order sheet in O.S.No. 17419/2004 and also certified copy of the inspection report made by the Assistant and confronted to PW.1 and marked as ExD1. He further deposed that the said dispossession was taken place on the strength of the interim order fraudulently obtained by the plaintiff herein suppressing the material facts regarding interim order of injunction already granted by this court in the suit filed by my wife in OS.No. 17419/2004 on the strength of the created cause of action, the plaintiff has filed the above suit by suppressing the material fact of operation of the interim order in the said suit filed by his wife, the plaintiff has deliberately misled this court by suppression of fact and obtained interim order of injunction. There after immediately invaded into the schedule property give hereunder by R.N. Subramanya and M. Devaraju and the plaintiff in the above suit along with their henchmen and goonda and antisocial elements in active 30 Judgment O.S.No. 15140/2005 support of Shivaramaiah, the Sub-inspector of Police, Madiwala Police Station. Since the plaintiff R.N. Subramaanya, M. Davaraju have illegally dispossessed them from the schedule property, hence they are constrained to file an application seeking mandatory injunction to restore possession in the said suit came to be dismissed for non- prosecution on 08/04/2011. Immediately they have filed a miscellaneous petition in Misc.No.25090/2011 and the said petition is still pending.
18. The DW.1 further deposed that the plaintiff in the above case has no right, title, interest or possession in respect of the property described in the schedule given hereunder. However on the strength of the spurious and fabricated GPA, Agreement of sale created by the said R.N. Subramanya in collusion with M. Devaraju have further executed the sale deed dated 19/04/2003 in favour of K. Poornima, which is as ExP10 in the above suit. The 31 Judgment O.S.No. 15140/2005 description shown in the schedule to the said document and also description shown in the schedule to the above suit in respect of non-existing property and based on the said description, the plaintiff herein is claiming the schedule property given here under which is absolutely belongs to his wife. The said R.N Subramanya and M. Devaraju have created spurious agreement of sale dated 14/06/1980 GPA and affidavit. The said documents are ante dated documents created by R.N Subramanya and M. Devaraju only to knock off the valuable property belongs to his wife and assessment extract produced at ExP8 and ExP9 are all spurious documents created for the above suit. Thus, the documents produced at ExP1 to ExP9 are all concocted and fabricated by R.N. Subramanya in collusion with M. Devaraju and the plaintiff herein. On the strength of the said spurious and fabricated document came into existence at the instance of R.N. Subramanya who is his Wife's vendor in collusion with M. Devaraju. Thus, the sale deed dated 19/04/2003 came 32 Judgment O.S.No. 15140/2005 into existence as per Ex.P10 in favour of K. Poornima, who in turn executed the sale deed dated 17/03/2004 on favour of A. Govinda Raju, the said, A. Govindaraju in turn executed the sale deed in favour of the plaintiff within the span of three months. Thus all the documents have been created by the aforesaid persons including the plaintiff herein only to defeat, deceive and defraud the legitimate right, title, interest and possession of his wife over the suit schedule property given hereunder.
19. The DW.1 further deposed that R.N. Subramanya is the man known for playing fraud and cheating people. He has filed suit against the Bangalore Development Authority in O.S No.1805/1983 seeking the decree for permanent injunction in respect of the entire land measuring 2 acres 15 guntas of Madiwala Village in Sy.No.77/3 of Madiwala Village. The said suit was on contest decreed by this court on merits by judgment and decree dated 04/08/1983. In the 33 Judgment O.S.No. 15140/2005 said suit, no where in the plaint or in the judgment, it was referred that the said R.N. Subramanya formed a layout or nothing has been whispered regarding execution of the affidavit, GPA and Agreement of sale dated 14/06/1980 in favour of M. Devaraju and any persons in respect of the alleged site bearing No.31 measuring East to West 26.5 feet and North to South 50 feet stated to be formed in Sy.No.77/3 of Madiwala Village, which is described in the schedule of the above plaint. As on the date of the said suit there was no layout formed by R.N. Subramanya in Sy.No.77/3. Thus the theory of plaintiff that said R.N. Subramanya had executed an Agreement of sale dated 14/06/1980 coupled with affidavit and GPA in favour of M. Devaraju in respect of the aforesaid suit schedule property are all created version and concocted stories only to defeat, deceive and defraud the legitimate right, title, interest and possession of his wife, the defendant herein, over the property described in the schedule given hereunder. There is 34 Judgment O.S.No. 15140/2005 no such property is in existence as described in the schedule of the above suit.
20. The DW.1 further deposed that the east of the property purchased by his wife, which is described in the schedule given hereunder, there exist the property of Mamatha which bears site No.1. The said R.N.Subramanya through its Attorney has executed the sale deed dated 26/10/1996 in favour of K. Mamatha in respect of the said site. In the said sale deed it is clearly described to the West, the property of R.N. Subramanya is shown, which is a portion subsequently sold to his wife by describing the same as given in the schedule given hereunder. To the west of THEIR property I.e property described in the schedule given hereunder there exists property of N.S Prakash. To the West of the said site of N.S. Prakash, the site belongs to J. Srinivasa is existing. After selling the schedule property given hereunder to his wife there is no property at all owned and possessed or retained by R.N. Subramanya as described in the above suit, 35 Judgment O.S.No. 15140/2005 to create encumbrance in favour of Poornima K. In order to knock of the valuable property belonging to his wife the said Subramanya executed sale deed dated 19/04/2003 by describing the same as site No.31, New property No.31/77/3. No such property existing in between the property of Mamtha and N.S Prakash except property of his wife which is described in the schedule given hereunder. The said site bearing No.31 was sold by the Power of Attorney holder of R.N.Subramanya in favour of one Saraswathi under the sale deed dated 14/03/1995 registered as document No.9665/1994-95. To the West of the site No.31, the very R.N. Subramanya through his Power of Attorney sold the site bearing No.30 to one Dhanabhagyam. There was a rectification deed rectifying the measurement executed by R.N. Subramanya in favour of Dhanabhaghyam under the document dated 20/11/2013, for which the said alleged GPA holder of R.N. Subramanya by name M. Devaraju has subscribed his signature as a witness. This 36 Judgment O.S.No. 15140/2005 clearly established the gravity of the fraud played by R.N. Subramanya in collusion with M. Devaraju in creating the spurious and fabricated GPA, Agreement of sale dated 14/06/1980. Thus the claim of the plaintiff is in respect of non-existing property made only to make wrongful gain in respect of the property belongs to his wife. Thus the claim of the plaintiff is frivolous and vexatious. There is no electricity or any civil amenities to the schedule property given hereunder. Earlier at the time of purchase there exist only 1 1/2 square AC sheet roof house and there after on out permission out neighbor Mamatha's husband constructed another shed for storing cement and building material for construction of house/building on the Eastern side of the suit schedule property. There is no property existing as described in the schedule to the above suit. On the strength of the spurious documents and subsequent sale deeds created by R.N.Subramanya and M. Devaraju, the plaintiff has approached this court with unclean hands with malafide 37 Judgment O.S.No. 15140/2005 intention to make wrongful gain. Thus, the plaintiff herein with aforesaid R. Subramanya, M. Davaraju and their henchmen and antisocial elements have dispossessed him, his wife, the defendant herein and his family members from the suit schedule property given hereunder illegally. Neither M. Devaraju nor purchasers under the sale deeds dated 19/04/2003 by name K. Poornima, A. Govindaraju the alleged purchaser under the sale deed dated 17/03/2004 and the plaintiff herein who is claiming under the spurious sale deed dated 30/06/2004 were ever in possession and enjoyment of the alleged suit schedule property described in the above suit.
21. The DW.1 further deposed that it was only after dispossessing him, his wife the defendant herein and his other family members from the schedule property described hereunder by the plaintiff in support of the above said persons and anti social elements on 20/12/2004, the plaintiff 38 Judgment O.S.No. 15140/2005 has been squatting over THER property illegally. The plaintiff or his vendors or his vendor's vendor have no right, title or interest much less possession over the property described in the schedule given hereunder earlier to the aforesaid date. Hence, there is no cause of action for the above suit at all. On the strength of the interim order of injunction granted by this court in the aforesaid suit, the plaintiff has illegally dispossessed us. Under the circumstances the plaintiff not entitle to seek the decree for permanent injunction. That great injustice, irreparable injury and loss beyond redemption has been caused to his wife the defendant herein and their family members due to the illegal and high handed act of the plaintiff and his supporters. The DW.1 prays to dismiss the suit with exemplary costs.
22. The contention of the plaintiff is that Sy.No.77/3 (New) old No.77 measuring 2 acres 05 guntas situatd at Madiwala village, Begur hobli,Bengaluru South taluk an it was originally belongs to Krishnappa and others and they 39 Judgment O.S.No. 15140/2005 sold the said property in favour of defendant No.1 R.N. Subramanya and he is in possession of the said suit schedule property. The defendant No.1 R.N.Subramanya formed residential lay-out byname 'Raghavendra lay-out' by forming 47 sites in the said land bearing Sy.No.77/3 New, old No.77 of Madiwala village. The suit schedule property is one of the site formed in the said land bearing Sy.No.77/3 new, and old No.77. The plaintiff further submits that on 14-06-1980 the defendant No.1 R.N. Subramanya obtained sancioned plan and he has executed the agreement of sale of the said suit schedule property bearing Sy.No.77 in favour of Devaraj Rddy S/o Malla Reddy and put in possession of the said property. Further the said defendant No.1 R.N. Subramanya also executed the G.P.A. in favour of Devaraj Reddy relating to the said suit schedule property and said Devaraj Reddy on the basis of said GPA executed the sale deed of said suit schedule property infavour of one Smt. Poornima K W/o K.N. Bhimesha on 19/04/2003 and in turn 40 Judgment O.S.No. 15140/2005 the said Poornima sold the suit schedule property to A. Govindaraj s/o V. Appaiah on 17/03/2004. Further the contention of the plaintiff that he has purchased the suit schedule property from A. Govindaraj on 17.6.2004 and he is in peaceful possession and enjoyment of the said property. But the defendant is causing interference to his possession and enjoyment over the said suit schedule property. The plaintiff examined as PW.1 and deposed the evidence as discussed above in support of oral evidence the plaintiff/PW.1 marked the documents ExP1 to ExP15. The ExP1 is unregistered agreement of sale dated 14/06/1980 executed by K.N. Subramanyam S/o Narayanaswamy Naidu in favour of M. Devaraj son of N.G. Malla Reddy in respect of the suit schedule property mentioned in the plaint. Further ExP2 is unregistered GPA executed by R.N. Subramanyam son of Narayanaswamy Naidu infavour of M. Devaraj S/o M. Mallareddy in respect of the suit schedule property. The ExP3 is the affidavit sworned by K.N. 41 Judgment O.S.No. 15140/2005 Subramanya S/o Narayanaswamy Naidu, wherein it was contained execution of agreement of sale in favour of M. Devaraj in respect of the site bearing No.31, formed in Sy.No.77/3. The ExP4 is license issued by Madiwala Grama Panchayath to M. Devaraj for construction of house in site No.77/3, site No.31 of Madiwala village. The ExP5 is No objection certificate issued by Grama Panchayath Madiwala. The ExP6 is Certificate issued by Grama Panchayath, Madiwala stating that there is no Government dues relating to site No.31 in Sy.No.77/3 which comes under the jurisdiction of Madiwala Grama Panchayath. ExP.7 is the proposed construction sanctioned plan in site No.31, old Sy.No.77, new Sy.No.77/3 of Raghavendra Layout, Madiwala village, Begur hobli, Bengaluru issued by Madiwala grama panchayath. The ExP8 is Demand Register extract for the year 1993-94 relating to property No.31 assessment No. 77/3 of Madiwala village wherein the entry of one Devaraj as owner and possessor. The ExP9 42 Judgment O.S.No. 15140/2005 house/land tax assessment document in Form No.9 for the year 1993-94 relating to property No.77/3/31 of Madiwala village wherein the name of possessor of the property mentioned as M. Devaraj.
23. The ExP10 is registered sale deed dated 19/04/2003 executed by R.N. Subramanyam S/o Narayanaswamy Naidu to M. Devaraj S/o Mallarddy, power of attorney holder of Poornima K W/o K.N. Bhimesha relating to the suit schedule property for Rs.3,64,000/- The ExP11 is registered sale deed dated 17/03/2004 executed by Poornima W/o K.N. Bhimesha infavour of one A. Govindaraju S/o V. Appaiah in respect of the suit schedule property. The ExP12 is registered sale dated 30/06/2004 executed by Govindaraj S/o V. Appaiah infavour of present plaintiff Y. Nagaraj S/o N. Yella Reddy in respect of the suit schedule property for sale consideration of Rs.4,06,000/-. In ExP13 two Encumbrance Certificates for the periods from 01/04/2003 to 05/07/2004 and 01/04/1991 to 31/03/2004 respectively 43 Judgment O.S.No. 15140/2005 are marked, wherein there is entry regarding sale and purchaser of suit schedule property by Poornima to Govindaraju and Govindaraju to Nagaraja, wherein there is entry regarding sale of suit property by Poornima to Govindaraju on 17/03/2004. In ExP14 three photographs are marked by the plaintiff as they belongs to suit schedule property. The ExP15 is registered rectification deed dated 23/02/2005 executed by Govindaraju S/o V. Appaiah in favour of plaintiff Y. Nagaraj S/o N. Yellareddy stating that in the sale deed in page No.2 property number wrongly mentioned as 13 instead of property bearing No.31. The ExP15 to ExP19 are the photograph marked by the plaintiff as they belongs to suit schedule property.
24. On the contrary the defendant denied the entire paint averments and denied the title of the plaintiff to the suit schedule property. The defendant contention that her property is bearing No.37 (new No.2) katha No.77 measuring East to West 25 feet and north to south 52 feet of 44 Judgment O.S.No. 15140/2005 Madiwala village and she purchased the said property from R.N. Subramanya. Plaintiff further submits that the boundaries of the plaintiff and defendant's property are not tallies to each other. The defendant further contends the plaintiff narrated boundaries of her property to the property mentioned in the plaint, plaintiff and his vendor were never in possession of the suit schedule property. Her vendor R.N. Subramanya was in possession, occupation and enjoyment of the suit schedule property up to 18/04/2002 and after execution of sale deed R.N. Subramanya in her favour, she is in lawful, peaceful possession and enjoyment of the suit schedule property. The GPA of defendant deposed evidence as DW.1 as discussed above and in support of oral evidence the DW.1 marked the document at ExD1 to ExD18. The ExD1 is certified copy of the order sheet in O.S.No.17419/2004 of Principal City Civil Court, Bengaluru filed by the present defendant Muniyamma against R.N.Subramanya for permanent injunction. The 45 Judgment O.S.No. 15140/2005 ExD2 is unregistered General Power of Attorney executed by defendant Muniyamma infavour of Govinda Reddy S/o Late Lakshmana Reddy for conducting the suit. The ExD3 is a registered original sale deed dated 18/04/2002 executed by R.N. Subramanyam S/o late Narayanaswamy Naidu in favour of the present defendant Muniyamma W/o Govinda Reddy in respect of property bearing site No.37 (New No.2), Katha No.77/3 bounded on the East to West: 25 feet and North to South : 52 feet situated at Madiwala village, Begur hobli, Bengaluru South Taluk along with 1 ½ square A.C. Sheet roof house built therein constructed with mud and bricks, jungle wood doors and windows, mud flooring and there is no civil amenities in the schedule property. 25 The ExD4 is request letter by Assistant Police Commissioner, Madiwala Sub-division submitted to the Court in O.S. No.17419/2005. The ExD5 is certified copy of the plaint in O.S.No. 1805/1983 of City Civil Court, Bengaluru filed by Subramani Naidu S/o Narayanaswamy 46 Judgment O.S.No. 15140/2005 against B.D.A. Bengaluru for injunction. The ExD6 is certified copy of the sale deed dated 26/10/1996 executed by Kannaiah Naidu S/o late Kitchamanaidu through by G.P.A. holder R.N. Subramanyam S/o late Narayanaswamy Naidu in favour of A. Mamatha in respect of property bearing corporation No.77/3 situated at Madiwala village. The ExD7 is Certified copy of the registered sale deed dated 05/06/2000 executed by R.N.Subramanya S/o late Narayanaswamy Naidu against N.S. Prakash S/o late Narayanappa in respect of property bearing house list No.2,Katha No.77/3 situated at Madiwala village, Begur Hobli, Bengaluru South taluk, and measuring East to West:
24+26 / 2 feet, south: 50 feet at Begur Hobli, Bengaluru South Taluk. The ExD8 Certified copy of the registered sal deed dated 05/06/2000 executed by R.N.Subramanya S/o late Narayanaswamy Naidu infavour of J. Srinivas S/o V. Jayaramappa in respect of property bearing Houslist No.3, katha No.77/3, measuring East to West: 24 + 26 / 2 and 47 Judgment O.S.No. 15140/2005 North to South 50 feet situated at Madiwala village, Begur Hobli, Bengaluru South Taluk. The ExD9 is certified copy of registered sale deed dated 15/04/1998 executed by R.N.Subramanyam S/o Late Narayana Swamy Naidu through GPA holder C. Kannaiah Naidu S/o late Kitchama Naidu in favour of K. Anitha W/o P. Nagarah and daughter of late R. Krishna in respect of property bearing house list No.4, Kath No.77/3 situated at Madiwala village, Begur Hobli, Bengaluru South Taluk measuring East to West 40 feet and North to South 55 feet. The ExD10 is the certified copy of the Confirming Deed executed by R.N. Subramanyam S/o late Narayanaswamy Naidu in favour of K. Padma W/o late R. Krishna in respect of the property bearing House list No.5, Katha No.77/3, measuring East to West 20 feet and North to South 50 feet situated at Madiwala village, Begur Hobli, Bengaluru south Taluk. The ExD11 is certified copy of the registered sale deed dated 05/06/2000 executed by the R.N. Subramanyam S/o late 48 Judgment O.S.No. 15140/2005 Narayanaswamy Naidu infavour of K. Anitha daughter of late R. Krishna in respect of property bearing house list No.4, katha No.77/3 measuring East to West: 20 feet and North to South: 50 feet situated at Madiwala village, begur Hobli, Bengaluru South taluk.
26. The ExD12 is certified copy of sale deed dt.15/03/1995 executed by Krishnappa S/o Late Channappa in favour of Saraswati W/o Vijayadev in respect of property bearing VP No.560/68/31 of Madival village Begur Hobli Bangalore South Taluk. The ExD13 is Certified copy of the registered sale deed dated 27/12/2002 executed by R.N. Subramani S/o Narayanaswamy represented by his GPA holder Ansar Ali Baig S/o Mahaboob Ali Baig infavour of Dhanabhagyam S/o J. Gunashekaran in respect of property bearing site No.31 in Old No.77/3, situated at Madiwala village, Old Division No.58, Present ward No.65 of Bengaluru City Corporation measuring East to West : 30 feet and North to 49 Judgment O.S.No. 15140/2005 South: 40 feet. The ExD14 is certified copy of registered rectification deed dated 20/11/2003 executed by R.N. Subramani S/o Narayanaswamy in favour of Dhanabhagyam W/o J. Gunashekaran stating that in the sale deed dated 27/12/2002 site No.31 is wrongly mentioned instead of site No.30. The ExD15 is certified copy of sale deed dt.29/10/1995 executed by P.V.Ramanath S/olate Venkataramaiah and others in favour of R.N.Subramanya S/o late Narayanswamy in respect of property Corporation No.77/3-10 of Madival village measuring East-West 50 feet, North-South-17 feet. The ExD16 is sketch map and it is marked subject to proof. The ExD16 does not bears the seal and signature of the issuing authority. The DW.1 has not proved the same by producing the document which bears the seal and signature of the concerned department. Hence ExD16 is not taken into consideration. The ExD17 is complaint given by defendant in the Mico Layout Police Station, Bengaluru against R.N. Subramanyam S/o Late 50 Judgment O.S.No. 15140/2005 Narayanaswamy Naidu on 20/12/2004 stating that the said R.N. Subramanyam is causing obstruction over possession and enjoyment of property bearing site No.37 new No.77/3 of Madiwala village. The ExD18 is endorsement given by the police inspector wherein which is ended that the disputed is in civil nature and the defendant may approach the civil court.
27. The plaintiff counsel while arguing relied upon the decisions reported in (2018) 8 Supreme Court Cases 67 Eureka Builders and others Vs. Gulabchand, S/o Veljee Dand since deceased by Legal represenatives and others A. Transfer of property Act 1882 - SS.8, 7 and 54 - Nemo dat quod non habet - Person is competent to transfer any property only if he has subsisting right, title or interest in it - If on 51 Judgment O.S.No. 15140/2005 date of transfer, right, title or interest of transferor stood extinguished (in this case under S.27 of Limitation Act, 1963 by operation of law of adverse possession) transfer would be illegal and void - Right once extinguished by operation of law can not be revived unless law itself provides therefor.
B. Limitation Act 1963-S.27 and Art.65 -
Adverse possession - Extinguishment of property rights of original lessors/owners re- granted by statute, by virtue of adverse possession of permanent lesses of original lessors/owners.
ILR 2015 KAR 5767 Mahadevappa, Since deceased through his L.Rs Vs. Uday Kumar.
TRANSFER OF PROPERTY ACT 1882 -
SECTION 48: No Man can convey a title better than what he himself possesses - transfer of suit property by the defendant No.2 in favour of 52 Judgment O.S.No. 15140/2005 defendant No.1 in the year 1998 - Sale of the same property by defendant No.2 in favour of plaintiff in the year 2000 - Legality of subsequent transfer made by defendant No.2 in favour of plaintiff - HELD, Section 48 of th Transfer of property Act determines the priority, when there are successive transfers. The provision contains important principle that no man can convey a title better than what he himself possesses. If a person effects a transfer of property, in law, he cannot, thereafter, deal with the same property, already transferred by him, ignoring the rights already created by the earlier transfer effected.
(2011) 12 Supreme Court Cases 220 Rangammal Vs. Kuppuswamy and another.
D. Evidence Act, 1872 - S. 101 - Burden lies on plaintiff to prove his case on basis of material available - he cannot rely on weakness or absence of defence of defendant to discharge the onus- If plaintiff claims title to property, he must prove his title - Property Law -
Ownership and Title - Burden of proof -
53
Judgment O.S.No. 15140/2005 Specific Relief Act 1963-S.34 - Transfer of Property Act 1882 Sections.7 and 8.
E. Evidence Act 1872 - S.101 - Misplacing burden of proof on a particular party and recording findings on that basis by court vitiates its judgment - Practice and Procedure -Burden of proof -
(2000) 3 Supreme Court Cases 312 Subhra Mukherjee and another Vs Bharat Coking Coal Ltd. And others.
B. Evidence Act 1872 - S.101 - Burden of proof - Sham and bogus transaction - party that makes allegation must prove it, but held, where the question before the court (after remand in this case) was "whether the transaction in question was a bonafide and genuine one' the party relying on the transaction had to prove its genuineness first - Only thereafter would the defendant be required to dislodge such proof and prove that the transaction was sham and fictitious.
2004 (1) KCCR 662 54 Judgment O.S.No. 15140/2005 K.Gopala Reddy (deceased) by Lrs V/s Suryanarayana and others A. Specific relief Act, 1963 - Section 34 and 36 - Suit for declaration of title and permanent injunction - Plaintiff's claim based on a oral gift made to his mother by her father - Though sale deed in favour of his maternal grand father and gift deed in favour of his mother were in his possession, not produced - Preferred to establish title on the basis of entries made in Revenue Records - Extracts from Tax Demand Register, Tax Receipts and building licence - Extracts from Tax Demand Register and Tax Receipts in the name of maternal grand mother and no-explanation as to how building licence was issued in favour of his mother.
B. Pleadings and Proof - Whenever a party approaches the Court for a relief, based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party who approaches the court. Weakness of the defendant cannot be considered as a trump card for the plaintiff. 55
Judgment O.S.No. 15140/2005 C. Evidence Act 1872 - Section 114 -
Adverse inference - Where the plaintiff in a suit for declaration of title and consequential relief of injunction, through in possession of documents of title, withheld to produce the same, court can drawn an adverse inference. D. Evidence Act 1872 - Section 114- Presumption as to Entries in Revenue Records
- Mere entries in the Revenue Records cannot be a basis to declare title of a person in respect of any immovable property.
AIR 1968 Supreme Court 1413 Gopal Krishnaji Ketkar V/s Mohamed Haji Latif and others A. Evidence Act (1 of 1872): Sec 114(g), Sec 103 - A party in possession of best evidence which would throw light on the issue in controversy withholding it - court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him -Party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it.
(2008) 8 Supreme Court cases 557 56 Judgment O.S.No. 15140/2005 Hardip Singh V/s State of Punjab B. Evidence Act 1872 - Sections 64, 61 and 62 - Document - Genuineness - Held, a document can be created-falsely by obtaining signatures of some persons - The document must therefore stand test of genuineness when produced in evidence.
(2017) 7 Supreme Court Cases 694 Agnigundala Venkata Ranga Rao V/S Indukuru Ramachandra Reddy (Dead) By Legal Representatives and others A. Specific Relief Act 1963 - Sections 38 and 41(g) -Suit for permanent injunction to restrain interference with possession of land - One of the conditions for grant of such injunction is that possession of plaintiff over the land must be lawful.
ILR 2014 KAR 1311 Smt.Sumitra Bai V/s P.Siddesh and Another Code of Civil Procedure 1908 - Section 100- Regular Second Appeal- Suit for declaration of title and for permanent injunction - Burden heavily rests on the plaintiff to prove his title - 57
Judgment O.S.No. 15140/2005 Need to produce convincing and cogent evidence to the satisfaction of the Court to establish the title to the property in dispute - Claim of the plaintiff was based on the grant made by the Mandal Panchayath - Production of Hakkupatra by the plaintiff - Absence of evidence to show that how the Mandal Panchayath acquired the ownership of suit property - Admission of the defendants is not material, plaintiff to prove his case independently to the satisfaction of the Court with convincing, cogent and legal evidence - Appellant Court deciding the issue by taking the evidence of the defendants as admissions to grant decree in favour of the plaintiff - HELD, The first Appellant Court has committed an error in taking the evidence of the defendants case would not strengthen plaintiff's case. The plaintiff has to prove his case to the satisfaction of the Court be means of convincing and cogent evidence not been divided into 56/1-A, 1-B and 1-C with specific measurements.
58
Judgment O.S.No. 15140/2005
28. The defendant counsel filed the written arguments submitting that the plaintiff has marked ExP1 and ExP3 documents and ExP1 to ExP13 establishes that the entire documents are created and fabricated. In the plaint Eastern boundary was shown as property No.30 contrary to the same in his affidavit evidence. The Eastern boundary shown as site No.30. Further it can be seen from ExP2 alleged G.P.A. and ExP3 alleged affidavit dated 14/06/1980 and those documents are filed on 14/06/1990. Hence it is clear that the said documents were not executed on the said date as contended in the plaint. Thus these documents clearly establishes that are fabricated and created for the purpose of the suit. The ExP4 and ExP5 issued by the Madiwala village panchayath bears the date 22/03/1994. Surprisingly said M. Devaraju showing the registered owner of any registered sale deed in his favour and even katha was not tendered in his name but as per the said document he was the agreement holder, but it was unknown how license and no objection 59 Judgment O.S.No. 15140/2005 certificate issued in his favour. Hence all those documents are created. Further ExP6 dated 28/03/1994 is also a fabricated document. The contention of the defendant that the plaintiff is not the absolute owner and in possession of the suit schedule property. The contention of the defendant that the documents are created. In the written argument filed the defendant's counsel mentioned citations. But the detailed citations are not furnished by the defendant counsel.
29. The burden is on the plaintiff to prove his lawful possession and enjoyment over the suit schedule property as on date of suit and defendant caused interference to his possession and enjoyment over the suit schedule property. Hence he constrained to file the suit for permanent injunction against the defendant. As discussed above the contention of the plaintiff that the original owner of the property bearing Sy.No.77/3 under the old Sy.No.77 measuring 2 acres 05 guntas of Madiwala village, Begur 60 Judgment O.S.No. 15140/2005 hobli, Bengaluru South Taluk was Krishnappa and others and they have executed the sale deed of said property in favour of R.N. Subramanyam and the said R.N. Subramanyam had formed the layout in the name and style of Raghavendra layout and formed 47 sites in the said land and suit schedule property is one of the site formed in the said land. But the plaintiff has not produced the documents of the land bearing Sy.No.77/3 old Sy.No.77 measuring 2 acres 05 gunts situated at Madiwala village, Begur Hobli hobli, Bengaluru South Taluk standing in the name of Krishnappa and others and also not produced the sale deed executed by said Krishnappa and others in respect of the said land in favour of R.N. Subramanya. Further the plaintiff has not produced the conversion order of said lands bearing Sy.No.77/3 new, old Sy.No.77 of Madiwala village for non- agricultural purpose for permission of sites issued by competent authority in favour of R.N. Subramanya. The plaintiff has also not produced the lay out plan of 61 Judgment O.S.No. 15140/2005 Raghavendra residential layout. Further the plaintiff has not produced the document to show that the katha of the land bearing new Sy.No.77/3, Old Sy.No.77 of Madiwala village was transferred in the name of R.N.Subramanya, after purchase of the same by him from Krishnappa and others. The plaintiff marked ExP1 unregistered agreement of sale executed by K.N. Subramanya in favour of M. Devaraju S/o N.G. Malla Reddy in respect of site No.31 formed in Sy.No.77/3 of Madiwala village as cited in the said agreement of sale. Further the plaintiff marked ExP2 GPA said to have been executed by R.N. Subramanyam S/o Narayanaswamy Naidu in favour of M. Devaraju S/o N.G. Mallareddy in respect of suit property mentioned in the plaint. In ExP1 K.N. Subramanya name is mentioned where as in ExP2 R.N. Subramanyam is mentioned and further in ExP3 affidavit of K.N. Subramanya is mentioned regarding change of initial in the name there is no explanation by the plaintiff in his plaint as well as in his oral evidence. As per 62 Judgment O.S.No. 15140/2005 ExP1 to ExP3 said R.N. Subramanyam said to have been transferred the suit schedule property. But there is no registered document regarding transfer of suit schedule property by R.N. Subramanya in favour of M. Devaraju. That as per Section 17 of Registration Act the property value more than Rs.100/- shall be compulsorily register. But the suit schedule property cited as site and it is a immovable property and there is no registered document regarding transfer of said property by R.N. Subramanya infavour of M. Devaraju. The plaintiff/PW.1 is cross-examined by the defendant's counsel, wherein he deposed the evidence that ExP1 is given by Subramanya to Devaraj Reddy. Those two persons are alive. Therefore as on date of deposing the evidence of PW.1 the so called earlier owners of suit schedule property Subramanya and Devaraju were alive. But the plaintiff has not led their evidence, who are material witnesses to depose evidence on those documents. The plaintiff has not examined the previous vendors of the suit 63 Judgment O.S.No. 15140/2005 schedule property to prove the material documents produced by him at ExP1 to ExP12. As per ExP12 the plaintiff has purchased the suit schedule property from Govindaraju wherein two witnesses are signed but the plaintiff has not examined those two witnesses signed in ExP12 sale deed. As per ExP12 plaintiff purchased the suit schedule property on 30/06/2004 and the plaintiff has filed the present suit on 15/01/2005 nearly after six months the plaintiff has filed the present suit, but why of the suit schedule property not get transferred in his name is not explained by the plaintiff in his plaint as well as in his oral evidence. Further the plaintiff has also not produced the katha certificate and katha extract of the suit schedule property standing in his name in the concerned revenue records. Hence mere sale deed in the name of plaintiff is not sufficient to accept that he is in lawful owner and in lawful possession of the suit schedule property, since the plaintiff has failed to prove by way of documentary evidence that suit schedule property is part of 64 Judgment O.S.No. 15140/2005 Sy.No.77/3 old Sy.No.77 of Madiwala village and in the said land suit schedule property was formed. Further the suit property is not transferred in the name of M. Devaraju S/o N.G. MallaReddy from R.N. Subramanya in due procedure of law, since there is no registered document in the name of M. Devaraju in respect of suit schedule property. Hence he has no right to transfer or alienate the said property to others. Further the citations referred by plaintiff counsel reported in 2004 (1) KCCR 662 is relates to plea of adverse possession, since the plaintiff has not taken any plea of adverse possession in his plaint, hence said citation and also other citations referred by the plaintiff does not applies to the case in hand. As discussed above the plaintiff has failed to prove by way of oral or documentary evidence that he is the lawful owner and in lawful possession and enjoyment of the suit schedule property as on date of suit, hence question of interference by the defendant does not arise. Hence the plaintiff failed to prove 65 Judgment O.S.No. 15140/2005 Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative.
30. Issue No.4 :-
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by her. There are several corrections, hence same are corrected directly on line in computer by me, then taken print out and again corrected, signed and pronounced by me in the open court on this 18th day of November 2020).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 : Y.Nagaraj S/o N.YellaReddy
66
Judgment O.S.No. 15140/2005
DOCUMENTS MARKED FOR THE PLAINTIFFS:
ExP1: Sale agreement
ExP2: Copy of GPA
ExP3: Affidavit
ExP4: License for construction of house
ExP5: NOC issued by Madival Gram Panchayat ExP6: No due certificate issued by Madival Gram Panchayat ExP7: Sketch of property ExP8: Demand register extract ExP9: Tax assessment register extract ExP10 to ExP12: Certified copies of sale deeds ExP13: 2 Encumbrance certificates ExP14: 3 photographs ExP15: Rectification deed ExP16 to ExP19 : 4 Photographs WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1:Govinda Reddy S/o Lakshman Reddy 67 Judgment O.S.No. 15140/2005 DOCUMENTS MARKED FOR THE DEFENDANT: ExD1: Certified copy of order sheet in OS.No.17149/2004 ExD2: GPA ExD3: Sale deed ExD4: Certified copy of police report in OS.No.17149/2004 ExD5: Certified copy of Plaint in OS.No.17149/2004. ExD6: Certified copy of sale deed. ExD7: Certified copy of sale deed. ExD8: Certified copy of sale deed. ExD9: Certified copy of sale deed. ExD10: Certified confirming deed ExD11: Certified confirming deed ExD12: Certified copy of sale deed ExD13: Certified copy of sale deed ExD14: Certified copy of rectification deed ExD10: Certified copy of sale deed ExD16: Hand Sketch ExD17: Complaint Copy ExD18: Endorsement issued by office of police commissioner.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT : BANGALORE.68
Judgment O.S.No. 15140/2005
Judgment pronounced in the open court
(Vide separate detailed Judgment)
:ORDER:
The suit of the plaintiff is hereby
dismissed with costs.
Draw Decree accordingly.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE