Bangalore District Court
Smt.B.S.Nagarathnamma vs Sri.P.V.Narayanakurup on 30 August, 2021
1 O.S.725/2006
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 30 th DAY OF AUGUST, 2021.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.725/2006
PLAINTIFF/S: Smt.B.S.Nagarathnamma,
W/o Dr.N.Chandrashekar,
Aged about years,
R/at No.308, Chennammana Kere
Achukattu, Vidyapeeta road,
BSK III Stage, III Phase,
Bangalore - 560 085.
(By Sri.V.K.R., Advocate)
Vs.
DEFENDANT/S: 1. Sri.P.V.Narayanakurup,
Since dead by LRs
1(a) Smt.Omana T.V.
W/o late Narayana Kurup
2 O.S.725/2006
Aged about 82 years,
1(b) Sri.Jina Raj T.V.
S/o Late Narayana Kurup
Aged about 52 years,
1(c) Smt.Jeeja T.V.
D/o Late Narayana Kurup,
Aged about 49 years,
All are R/at "Devika",
Kadambur, Edakkad,
Kannur district,
Kerala state.
2. Smt.P.V.Ammu Amma
Since dead by legal representatives
2(a) Smt.P.V.Thankamani,
D/o late Ammu Amma,
Aged about 65 years,
2(b) Smt.P.V.Raveendranatham,
S/o late Ammu Amma,
Aged about 63 years,
2(c) Smt.P.V.Shobha,
D/o Late Ammu Amma,
Aged about 61 years,
2(d) Smt.Rajalakshmi,
D/o Late Ammu Amma,
3 O.S.725/2006
Aged about 58 years,
All are R/at "Govind Sadan"
house, Eranholi Desam,
Eranholi village,
Thalassery taluk,
Kannur district,
Kerala state.
3. Smt.P.V.Padmini,
W/o Sri.Shankarn Nambier,
Aged about years,
R/at Govinda Sadanam house,
Ponniam west P.O. Thalassery,
Kerala - 670 642.
Rep. By GPA holder
Sri.Sivilankumar,
S/o P.V.Kumaran,
Aged about years,
R/at No. 1286/V, 14 th cross,
29 th main, II stage,
BTM Layout,
Bangalore - 560 076.
4. Sri.Sivilankumar,
S/o P.V.Kumaran,
Aged about years,
R/at No. 1286/V, 14 th cross,
29 th main, II stage,
BTM Layout,
Bangalore - 560 076.
4 O.S.725/2006
5. Sri.P.Narayan,
S/o Papaiah,
Aged about years,
R/at No.71/1-0,
Hulimavu village, Begur hobli,
Bangalore south taluk.
6. Sri. Sathyanarayana
S/o Late L.V.Krishna Rao,
Aged about years,
R/at No.40, II Main road,
Panduranga layout,
Bannerghatta road,
Bangalore - 560 076.
(LRs of D1 to D3 by P.V.V Associates,
D4 By Smt.Amrudha D Nair, Advocate
D5 By Sri.MI, Advocate,
D6 - Exparte )
* * * * *
Date of institution of suit : 23.01.2006
Nature of suit : Possession
Date of commencement
of recording of evidence : 21.08.2008
Date on which the judgment
was pronounced : 30.08.2021
5 O.S.725/2006
Duration of the suit :Year/s Month/s Day/s
15 07 07
JUDGMENT
1. This is a suit filed by the plaintiff against the defendants under Order 7 Rule 1 of C.P.C. r/w section 6 of the Specific Relief Act praying to restore the vacant possession of the plaintiffs suit schedule property by directing the defendant No. 1 to 5 to remove the illegal structure constructed by them on the schedule site by issuing a mandatory injunction and to direct the defendant No. 1 to 5 to place the plaintiff in vacant possession of the schedule site.
2. The schedule property is the site No. 31 and 32 formed in the land bearing Sy.No. 60/3 of Hulimavu 6 O.S.725/2006 village, house list No. 72/9 of Bommanahalli TMC, Bangalore totally measuring 60' x 80' and bounded as follows: on the easat by road, west by site No. 30, north by road, south by site No. 33 and 34.
3. The plaint averments briefly stated as follows:
One H.B.Thammaiah was the absolute owner of the land bearing Sy.No. 60/3 of Hulimavu village, Begur hobli, Bangalore south taluk, totally measuring 2 acres 35 guntas. The said Thammaiah passed away leaving behind his only son by name T.Ramaiah as his sole surviving heir. Upon the death of Thammaiah his son T.Ramaiah inheritted all his properties including land bearing Sy.No. 60/3. His name entered as Khathedar and entered in RTC. When the Urban Land (Ceiling and Regulation) Act came into force T.Ramaiah 7 O.S.725/2006 filed the declaration to the Urban Land Authority as required under the said Act. Since the lands held by him were within the ceiling limits an endorsement dated 7.4.1988 has been issued by the Urban Land Ceiling Authority. Subsequently the said land bearing Sy.No. 60/3 assessed to tax by Hulimavu village panchayat. T.Ramaiah formed a layout of residential sites in the said land. A layout plan was approved by the administrator of Hulimavu village panchayat. The Hulimavu village panchayat gave certificate to the effect that all the sites formed in the layout totaling to 54 have been assessed to tax by the said panchayat.
T.Ramaiah was in absolute possession and enjoyment of all the 54 sites formed in the land bearing Sy.No. 60/3 of Hulimavu illage. T.Ramaiah and his only son Srinath Babu executed Power of Attorney in favour of 8 O.S.725/2006 L.K.Sathyanarayana, the 6 th defendant herein authorising him to sell site no.31 and 32 formed in the land bearing Sy.No. 60/3. T.Ramaiah and his son Srinath Babu represented by their Power of Attorney holder L.K.Sathyanarayana the 6 th defendant herein sold the suit schedule property bearing site No. 31 and 32 in favour of the plaintiff under two registered sale deeds dated 1.9.2003. On the same day the plaintiff was placed in vacant possession of the said two sites, i.e., suit schedule property. Subsequently a layout referred to above came within the jurisdiction of Bommanahalli town municipal counsel and was assessed to house list No. 72/9, old Khatha No. 552 of Bommanahalli Nagarasabha and site No. 31 and 32 were given Sl.No.106 and 107. After purchase of the suit schedule property the plaintiff has paid tax in 9 O.S.725/2006 respect of sites bearing No. 31 and 32 of Bommasandra TMC under Self Assessment Scheme. The plaintiff is the absolute owner of the suit schedule sites and has been in possession of the same. The plaintiff is residing in Banashankari III Stage, Bangalore and her residence is at a distance of about 10 kms. from the suit schedule property. Both the plaintiff and her husband are practicing doctors and are busy in their profession. They are not able to visit the schedule sites frequently.
4. During the 2 nd week of October 2005 the plaintiff's husband went to the schedule property to take inspection of the same. To his shock and surprise he found that the asbestos sheet roofed shed measuring 10' x 10' has been constructed on the schedule sites and 10 O.S.725/2006 the 5 th defendant herein is occupying the same. He was completely taken by surprise since when he visited the site in July 2005 there was no construction. He made enquiries and learnt that defendant No. 1 to 3 represented by their Power of Attorney holder the 4 th defendant herein have constructed a shed and have let out the same to the 5 th defendant during August 2005. Neither defendant No. 1 to 3 nor the 4 th defendant have any manner of right, title or interest to the schedule property. It is obvious that during the beginning of August 2005 they have trespassed on the schedule property and have constructed the shed. By virtue of such acts they have wrongfully dispossessed the plaintiff from the schedule property. 11 O.S.725/2006
5. The plaintiff has been thus wrongfully dispossessed from the suit schedule property by defendant No. 1 to 5 within six months prior to the date of filing of this suit. The defendant No. 1 to 5 have no manner of right, title or interest to the suit schedule property and they were never in possession of the same. They have occupied the suit schedule property by wrongfully dispossessing the plaintiff, there from which dispossession came to the knowledge of the plaintiff only during October 2005. She had to make enquiries and to ascertain as to who has trespassed into the suit schedule property and who has constructed the shed and thus took sufficient time and she is able to file the present suit only after ascertaining the same. Since the plaintiff has been wrongfully dispossessed from the suit schedule property 12 O.S.725/2006 by defendant No. 1 to 5 she is entitled to get possession of the sites from the defendants under section 6 of the Specific Relief Act since dispossession is within six months from the date of filing of the suit. Hence the plaintiff has filed this present suit under section 6 of the Specific Relief Act seeking possession of the suit schedule property from the defendants after removing all the illegal structure which they have put upon the schedule site. The defendant No. 1 to 5 are bound to remove the illegal structure which they have constructed on the suit schedule property and place the plaintiff in possession of the suit schedule property. Hence on these grounds the plaintiff prayed to decree this suit.
6. Defendant No. 6 remained exparte.
13 O.S.725/2006
7. The defendant No. 1 to 5 entered appearance by engaging their counsel and resisted the claim of the plaintiff by filing their written statement. In this suit during the pendency of the suit defendant No. 1 and 2 were died, hence their legal representatives defendant No.1(a) to (c), defendant No. 2(a) to 2(d) are brought on record. Defendant No. 4 is the General Power of Attorney holder of defendant No. 1 to 3 and defendant No. 5 has filed this written statement which is briefly stated as follows:
The defendants have taken contention that the contention of the plaintiff that one H.P.Thammaiah was the absolute owner of the land bearing Sy.No. 60/3 of Hulimavu village, measuring 2 acres 35 guntas and after his death his son T.Ramaiah inheritted the 14 O.S.725/2006 properties are not within the knowledge of the defendants. Except that the defendants know that Ramaiah was the son of Thammaiah and that T.Ramaiah was the owner of Sy.No. 60/3 of Hulimavu village. The other contention of the plaintiff that Ramaiah filed a declaration to the Urban Land Authorities is not within the knowledge of the defendants. It is admitted that the land bearing Sy.No. 60/3 came within the limits of Hulimavu village. Further averments that it was assessed to tax by Hulimavu Village Panchayat are not within the knowledge of father the defendants. The contention of the plaintiffs that T.Ramaiah formed a layout of residential sites in the said land and that layout plan was approved by the Administrator of Hulimavu Village Panchayat are not within the knowledge of the 15 O.S.725/2006 defendants. It is contended that the Village Panchayat has no authority under the law to approve and sanction a layout and hence document No. 4 has no legal sanctity. The defendant No. 1 to 5 are not aware that T.Ramaiah was in absolute possession and enjoyment of all the sites in Sy.No. 60/3. The defendants are not aware as to whether T.Ramaah and his son Srinath Babu executed Power of Attorney in favour of L.K.Sathyanarayana, 6 th defendant authorising him to sell site No. 31 and 32 formed in Sy.No. 60/3. The plaint averments that T.Ramaiah and his son Srinath Babu represented by their Power of Attorney holder L.K.Sathyanarayana sold to the plaintiff site No. 31 and 32 under two registered sale deeds dated 1.9.2003 and that on the same day the plaintiff was put in possession of the said two sites are not within 16 O.S.725/2006 the knowledge of the defendant No. 1 to 5 and the plaintiff is put to strict proof of the same. The contention of the plaintiff is that the layout came within the jurisdiction of Bommanahalli Town Municipal Council and was assessed to house list No. 72/9, old Khatha No. 552 of Bommanahalli Nagarasabha and site No. 31 and 32 were given Sl.No.106 and 107 are not within the knowledge of defendant No. 1 to 5 and the plaintiff is put to strict proof of the same. The contention of the plaintiff is that in the 2 nd week of October 2005 the plaintiff's husband went to the suit schedule property and found the asbestos sheet with roofed shed measuring 10' x 10' has been constructed on the schedule sites and that the 5 th defendant is occupying the same are denied as false and incorrect. Further averments that in July 2005 17 O.S.725/2006 when he visited the sites there was no construction and that on enquiries he learnt that defendant No. 1 to 3 represented by their General Power of Attorney holder the 4 th defendant has constructed the shed and that he has let out the same to the 5 th defendant are all denied as false. The contention of the plaintiff is that during the beginning of August 2005 the defendant No. 1 to 5 have trespassed on to the schedule property and they have constructed sheds therein and that they have wrongfully dispossessed the plaintiff from the suit schedule property is denied as false. The contention of the plaintiff is that she has been dispossessed from the suit schedule property by defendant No. 1 to 5 within six months prior to filing of this suit and that defendant No. 1 to 5 have no manner of right, title or interest in the suit schedule property and that they 18 O.S.725/2006 were never in possession of the same are denied as false and incorrect.
8. The defendant No. 1 to 5 have taken contention that the property bearing Gramatana House list No.566, site No. 71/1-'O' situated at Hulimavu village, Begur hobli, Bangalore South Taluk, Bangalore and measuring east to west 80 feet and north to south 50 feet together in all measuring 4000 square feet and bounded on the east by road, west by private property, north by road, south by H.L.Khatha No. 71/1-'N' originally belonged to one late P.V.Balan who had purchased the same from one S.A.Padmanabha S/o S.R.Andanappa vide an absolute sale deed dated 3.10.1989. The said S.A.Padmanabha was the General Power of Attorney holder of Sri.T.Ramaiah S/o 19 O.S.725/2006 H.B.Thammaiah. The above said property was a part of the property in Sy.No. 60/3 of Hulimavu village. Thereafter the Khatha of the said property was changed into the name of late P.V.Balan and the tax of the property was also paid in his name. The said P.V.Balan died on 28.5.2004. The defendant No. 1 to 3 herein being the only legal heirs became the absolute owners of the said property as the said Balan was unmarried and both his parents were already dead. The defendant No. 1 is being the brother of late P.V.Balan, defendant No. 2 and 3 are the sisters of late P.V.Balan. Since the legal heirs of late P.V.Balan were residing in Kerala and found it difficult to look after the above said property they entrusted and authorised their General Power of Attorney holder Sri.Sivilan Kumar, defendant No. 4 herein to look after the above 20 O.S.725/2006 said property on their behalf in Bangalore. Since the death of P.V.Balan under the instructions of his legal heirs the defendant No. 4 has been looking after the above said property till this date. In fact the defendant No. 4 got constructed the dwelling unit in the above said property, a sheet roofed one, with one hall, kitchen, attached bath room with a ringed well for water and electricity under the instructions of the legal heirs of late P.V.Balan and the defendant No. 4 even leased the above said premises to defendant No. 5 for a period of two years vide a lease agreement commencing from 20.8.2005. The defendant No. 1 to 4 are in legal possession, enjoyment and ownership of the above mentioned property and has let on lease the above said property to defendant No. 5. It is contended that the suit schedule property described in 21 O.S.725/2006 the plaint and one they possess, enjoy and own is different. Not only there is difference in number, description and location of the properties but also there is difference in dimensions. The suit schedule property measures 4800 square feet in area whereas the property one occupied and possessed and enjoyed by the defendants is 4000 square feet in area. Moreover the suit schedule property consists of two sites whereas the property of the defendant No. 1 to 4 is a single site. The plaintiff states that there is one square sheet building in the suit schedule property whereas the building of the defendants is a residential unit of about 3 squares with one hall, kitchen, attached bathroom with ringed well for water and electricity facility. Moreover the plaintiff could have very well produced photographs of the suit schedule property. 22 O.S.725/2006 Non-production of the same creates doubt on the case of the plaintiff. The defendants have taken contention that they purchased their property in the year 1989 and in the same year the name of the then owner P.V.Valan was entered in form No. 10 of the records of the Hulimavu panchayat. The defendant No. 1 to 5 have paid upto date tax to their property in the name of late P.V.Balan and presently the property is in the jurisdiction of the Bommanahalli CMC and they are paying the taxes to that authority. The defendants are produced copies of tax paid receipts, sale deeds, form No. 10, encumbrance certificate from 1.4.1998 till 27.6.2005 over the property which they owned. If the plaintiff had purchased the defendant's property in the year 2003 then the same would have been reflected in the encumbrance certificate. However there is no such 23 O.S.725/2006 reflection. The defendants had a threat of dispossession from their property from one Srinath Babu mentioned in the present suit as the vendor of the plaintiff. The defendant No. 1 to 4 had filed a complaint to the Commissioner of Police and the Office of the Chief Minister on 19.10.2005 against the said Srinath Babu and they also obtained an interim injunction in O.S.No.17490/2005 pending before the City Civil Judge, CCH-22, Mayohall, Bangalore, restraining the said Srinath Babu from dispossessing the defendants from their property without due process of law and the same is still in force. The defendants do not rule out the probability of the plaintiff in collusion with the said Srinath Babu filing the present suit to revenge obtaining the interim order against him. The defendants are in possession, ownership and 24 O.S.725/2006 enjoyment of their own property and it is nothing to do with the claims of the plaintiff. They are in legal possession and enjoyment of their property having got their rights from the year 1989 onwards. Whereas the alleged claim of the plaintiffs even assuming it is on the defendant's property, starts only in the year 2003. The suit is not properly valued and the court fee paid by the plaintiff is insufficient. The plaintiff is not entitled to any relief and the suit is barred by Limitation. Hence on these grounds the defendant No. 1 to 5 prayed for dismissal of the suit.
9. Based on the pleadings of the parties the following issues are framed in this suit.
(1) Whether the plaintiff proves that she acquires possession over the 25 O.S.725/2006 suit schedule property in pursuance of two sale deeds dated 1.9.2003 ?
(2) Whether the plaintiff proves that the defendant No. 1 to 5 have dispossessed the plaintiff from the suit schedule property about six months prior to the filing of the suit ?
(3) Whether the plaintiff proves that the defendant No. 1 to 5 have put up illegal structures on the suit schedule property ?
(4) Whether the plaintiff is entitled for mandatory injunction as prayed for?
(5) Whether the plaintiff is entitled for recovery of possession of the suit schedule property ?
26 O.S.725/2006 (6) Whether the property described in the schedule to the plaint and the property stated in the written statement of the defendant No. 1 to 5 are one and the same ?
(7) Whether the subject matter of the suit is not properly valued and the court fee paid is insufficient ?
(8) Whether the suit claim is barred by Limitation ?
(9) Whether the plaintiff is entitled for decree as prayed for ?
(10) What order ?
10. In order to prove the case of the plaintiff the plaintiff's husband as a General Power of Attorney holder of the plaintiff examined himself as PW1 and the documents Ex.P1 to Ex.P24 are marked on the 27 O.S.725/2006 side of the plaintiff. Court Commissioner is examined as PW2 and the documents Ex.C1 to Ex.C8 are marked through PW2. Another witness on the side of the plaintiff is examined as PW3. After closure of the evidence on the side of the plaintiff the defendant No. 4 for himself and as a General Power of Attorney holder of defendant No. 1 to 3 examined himself as DW1 and the documents Ex.D1 the Ex.D23 are marked through him.
11. I have heard the arguments on the side of the learned counsel for the plaintiff and the learned counsel for the defendants and perused the entire records.
12.. My findings to the above issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
28 O.S.725/2006
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : Does not survive
for consideration
Issue No.7 : In the Negative
Issue No.8 : In the Affirmative
Issue No.9 : In the Negative
Issue No.10 : As per the final order
for the following:
REASONS
13. Issue No.1 to 3: Since these three issues would
decide the fate of this suit and the whole case of the plaintiff is based on proving of these issues I have taken them simultaneously in order to avoid repetition of facts and evidence.
29 O.S.725/2006
14. PW1 is the Power of Attorney holder of plaintiff and he is the husband of the plaintiff. PW1 in his examination-in-chief affidavit has reiterated the plaint averments. Since examination-in-chief of PW1 is the replica of the plaint averments it need not be reproduced once again as this court already narrated the gist of the plaint.
15. The documents Ex.P1 to Ex.P22 are marked through PW1. Ex.P1 is the Power of Attorney dated 29.8.2007 executed by plaintiff in favour of PW1. Ex.P2 to Ex.P4 are the certified copy of the order sheet, plaint, written statement of O.S.No.17490/2005. The document Ex.P5 to Ex.P13 are the property tax paid receipts and copy of self assessment declaration forms, Ex.P14 is the General Power of Attorney dated 25.3.1994 executed by Ramaiah and Srinath Babu in 30 O.S.725/2006 favour of L.K.Sathyanarayana, Ex.P15 is the certified copy of sale deed dated 1.9.2003 executed by L.K.Sathyanarayana as a General Power of Attorney holder of T.Ramaiah and Srinath Babu in favour of plaintiff in respect of property site No. 31. Ex.P16 is the certified copy of Deed of Confirmation dated 8.10.2007 executed by K.Sharadamma and others in favour of plaintiff. Ex.P17 is the encumbrance certificate, Ex.P18 is the endorsement issued by Tahsildar stating that mutation extract could not be furnished. Ex.P19 to 21 are the RTC extracts. Ex.P22 is the certified copy of the sale deed dated 1.9.2003 executed by L.K.Sathyanarayana as General Power of Attorney holder of T.Ramaiah and Srinath Babu in favour of plaintiff in respect of the property bearing site No. 32, Ex.P23 is the certified copy of order sheet 31 O.S.725/2006 in O.S.No.17490/2005, Ex.P24 is the certified copy of memo filed in O.S.No.17490/2005.
16. During the course of cross-examination of PW1 he admitted the suggestion that the suit schedule property forms the part of layout. He states that the Village Panchayat approved this layout during 1988-89. He states that in October 2005 he came to know that the defendants are in possession of the suit property. He states that he has not got issued legal notice prior to filing of the suit calling upon the defendants to quit and vacate the suit schedule property. He has deposed that the suit property consists of two sites. There is no compound Khatha for these two sites. He has denied the suggestion that the defendant No. 1 to 4 are in possession of the property bearing No. 71/1O house list No. 566 measuring east to west 80 feet, 32 O.S.725/2006 north to south 50 feet of Hulimavu., Begur hobli, Bangalore bounded on the east by road, west by private property, north by road, and south by property bearing HL khatha No. 71/1N. He admitted the suggestion regarding filing of the suit in O.S.No.70490/2005 filed by present defendant No. 1 to 4 against H.R.Srinath Babu in respect of the property bearing No. 71/1-O measuring east to west 80 feet and north to south 50 feet. PW1 has deposed that in October 2005 when he visited the suit property he was alone. He has denied all other suggestions made to him.
17. PW2 is the Court Commissioner who has deposed regarding spot inspection and submitting his report. Ex.C1 to Ex.C8 are marked through him. As 33 O.S.725/2006 Ex.C8 is fully torn out he has produced the sketch which is marked at Ex.C8(a).
18. PW3 is the witness on the side of the plaintiff deposed that he had purchased site No. 33 which is adjacent to site No. 31 and 32. PW3 has deposed that plaintiff's sites are two sites situated after his sites. He states that he and plaintiff's husband visited number of times to look after the sites during August 2005. He along with plaintiff's husband went to the suit schedule property, then they came to know that some people were in unlawful occupation, on enquiry with the people in the locality the plaintiff's husband came to know about the dispossession. He states that before that visit he and Chandrashekar visited sites number of times and nobody has occupied the same. After his visit in August 2005 Sri.Chandrashekar told him that 34 O.S.725/2006 he is going to take legal action for the illegal acts of the defendant. During the course of cross-examination by the defence PW3 admitted the suggestion that plaintiff's husband is his close friend. He states that he came to know about encroachment as he saw construction of compound walls in those sites. At that time he informed the plaintiff and she lodged complaint to the police.
19. Defendant No. 4 who has examined as DW1 in his examination-in-chief reiterated the written statement contentions. The documents Ex.D1 to Ex.D37 are got marked through him. Ex.D1 is the certified copy of sale deed dated 3.10.1989 executed in favour of P.V.Balan. Ex.D2 is the property tax paid receipt of the year 1989. Ex.D3 is the tax paid receipt of the year 1990, Ex.D4 is the tax paid receipt for 1991 to 35 O.S.725/2006 1994. Ex.D5 to 7 are the tax paid receipts of the year 2005. Ex.D8 is the demand register extract standing in the name of P.V.Balan, Ex.D9 is the form No. 10 issued by Hulimavu grama panchayat standing in the name of P.V.Balan. Ex.D10 to 12 are self property assessment extract, Ex.D13 is the encumbrance certificate from the year 1988 to 2004. All these documents Ex.D1 to Ex.D13 are with respect to the property bearing House list No.566 site No. 71/1O situated at Hulimavu village, Begur hobli, Bangalore, measuring east to west 80 feet and north to south 50 feet. Ex.D14 and 16 are the copy of complaint lodged by D4 to the police on 20.7.2007, Ex.D16 to Ex.D20 are the copy of order sheet, copy of application, copy of entire order sheet, copy of court summons, copy of mahazar drawn by the bailiff in O.S.No.17490/2005 36 O.S.725/2006 respectively. Ex.D21 and 22 are the certified copy of the order sheet and complaint in PCR No. 22788/2006. Ex.D23 is the copy of representation given to Sub- Registrar Bommanahalli, Bangalore, Ex.D24 and 25 are the copy of complaint given to the police, Ex.D28 is the copy of representation given to the Land Acquisition Officer on 14.8.1990 , Ex.D29 is the B khatha register extract standing in the name of defendant No. 4. Ex.D30 and 31 are property tax paid receipts, Ex.D32 and 33 are two encumbrance certificates, Ex.D34 tax paid receipt for the year 2002- 2003, Ex.D35 is the self assessment extract for the year 2002-2003. Ex.D36 electricity paid receipt, Ex.D37 electricity bill. The defendants have produced all these documents by contending that they are the absolute owners and in possession of the property bearing 37 O.S.725/2006 gramatana house list No. 566, site No. 71/1O situated at Hulimavu village, Begur hobli, measuring east to west 80 feet and north to south 50 feet. During the course of cross-examination of DW1 he has admitted the signature of Ramaiah and Srinath Babu found on Ex.P14 which are marked at Ex.P14(a) and (b). DW1 has denied the suggestion that they have dispossessed the plaintiff during the 2 nd week of August 2005 from the suit schedule property. He has denied all other suggestions made to him.
20. Prior to proceed further it is relevant to note the provision under section 6 of Specific Relief Act 1963. Section 6 - Suit by person dispossessed of immovable property - (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law he or any person claiming through him 38 O.S.725/2006 may, by suit, recover possession thereof, not withstanding any other title that may be set up in such suit.
(2) No suit under this section shall be prayed (a) After the expiry of six months from the date of dispossession or (b) against the government (3) No appeal shall rely from any order or decree passed in any suit instituted under this section nor shall in review of any such order or decree be allowed. (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
21. On plain reading of provision under section 6 of Specific Relief Act it is very clear that the suit filed under section 6 of Specific Relief Act is summary suit 39 O.S.725/2006 and question of title or better rights of possession does not arise for adjudication in a suit filed under this provision. The learned counsel for defendant No. 4 relied upon the decision of Hon'ble Supreme Court which is reported in 2013(9) SCC 221 wherein the Hon'ble Supreme Court clearly held that a proceeding under section of Specific Relief Act 1963 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by the illegal act of dispossessed. Question of title or better rights of possession does not arise for adjudication in a suit under the said provision where the only issue required to be decided is as to whether the plaintiff was in possession at any time six months prior to the date of filing of suit. The legislative 40 O.S.725/2006 concern underlying section 6 of the said Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants seeking remedy outside the arena of law. The same is evident from section 6(3) of the Act which bars the remedy of an appeal or even a review against the decree passed in such a suit. The learned counsel for the defendant No. 4 also relied upon the decision reported in 2012(5) SCC 370 and also relied upon the judgment of Hon'ble Supreme Court reported in 1998(3) SCC 331. The learned counsel for the defendant No. 1 to 3 relied upon the decision of Hon'ble Supreme Court which is reported in AIR 1968 SC 1165 wherein the Hon'ble Supreme Court discussed about the scope of provision under section 5 and 6 and section 8 and 9 of the Specific Relief Act. The learned counsel for the defendant No. 1 to 3 relied 41 O.S.725/2006 upon the decision of Hon'ble Supreme Court which is reported in AIR 1995 SC 1377. She relied upon the decision reported in AIR 1998 SC 1132 wherein the Hon'ble Supreme Court held that suit for possession filed by the plaintiff beyond six months of dispossession - not maintainable from or when title of defendant was subsisting and not extinguished. The learned counsel for the defendant No. 1 to 3 also relied upon the decision of Hon'ble Supreme Court reported in AIR 1991 SC 395.
22. Since the plaintiff has filed this suit under the provision of section 6 of Specific Relief Act this is a summary suit and in this suit this court cannot decide question regarding the title of the disputed property. Only question to be decided is that whether the plaintiff was in possession of the suit schedule property 42 O.S.725/2006 six months prior to filing of this suit and she was dispossessed from the suit schedule property within six months prior to filing of this suit.
23. The learned counsel for the plaintiff argued that the plaintiff has become the absolute owner of the suit schedule property in view of the sale deeds Ex.P16 and Ex.P22. He argued that the document Ex.P14 is the General Power of Attorney executed by Sri.T.Ramaiah and Srinath Babu in favour of defendant No. 6 L.Sathyanarayana. He argued that defendant No. 6 being the General Power of Attorney holder of Sri.T.Ramaiah and Srinath Babu executed registered sale deed dated 1.9.2003 in favour of the plaintiff by selling the suit schedule property bearing No. 31 and 32 and handed over possession of the same to the 43 O.S.725/2006 plaintiff. He argued that after purchase of the suit schedule property the plaintiff got changed the Khatha in her name and she has paid property tax to the Bommasandra TMC under self assessment scheme. He submitted that the plaintiff has got marked the document Ex.P5 to Ex.P13 to show that she has paid property tax under self assessment scheme to the suit schedule property. He argued that even after the General Power of Attorney holder defendant No. 6 executed the sale deeds in favour of the plaintiff as per Ex.P15 and 22 thereafter the legal heirs of T.Ramaiah including his son H.R.Srinath Babu executed Deed of Confirmation as per Ex.P16 on 8 th October 2007. He argued that the suit schedule property is situated in Sy.No. 60/3 which is originally belongs to Ramaiah. He submitted that the plaintiff was in possession of 44 O.S.725/2006 suit schedule property till August 2005. During 2 nd week of October 2005 plaintiff's husband went to the schedule property to take inspection of the same. At that time he was shocked and surprised to see that the asbestos sheet roofed shed measuring 10 feet x 10 feet has been constructed on the suit schedule property and the defendant No. 5 was occupying the same. He argued that the plaintiff was visited the suit schedule property in the month of July 2005 but at that time there was no any construction. On enquiry the plaintiff learnt that the defendant No. 1 to 3 represented by their Power of Attorney holder 4 th defendant has constructed a shed in the suit schedule property and let out the same to the 5 th defendant during August 2015. He argued that suit in O.S.No.17490/2005 filed by the defendants against 45 O.S.725/2006 Srinath Babu. They have not made present plaintiff as party in that suit. He argued that the plaintiff was wrongfully dispossessed from the suit schedule property by defendant No. 1 to 5 within six months prior to the date of filing of this suit. Hence the plaintiff is entitled for recovery of possession of the suit schedule property from the defendants. He argued that the defendants have taken false claim that they are in possession of the property bearing gramatana house list No. 566, site No. 71/1-O situated at Hulimavu village, measuring east to west 80 feet and north to south 50 feet. He argued that in the document produced by the defendants there is no such mention regarding the Sy.No. 60/3. The description of the property, i.e., boundaries and extent of the property claimed by the defendant No. 1 to 4 is not tallying with the 46 O.S.725/2006 boundaries mentioned in the suit schedule. He argued that taking undue advantage of the absence of the plaintiff as she is residing at the distance of 10 kms. from the suit schedule property i.e., residing in Banashankari III Stage the defendant No. 4 illegally constructed the shed in the suit schedule property in the month of August 2005 and thereby the defendant No. 1 to 5 dispossessed the plaintiff from the suit schedule property illegally. He argued that in this suit the Court Commissioner PW2 who has submitted his report as per Ex.C7 and Ex.C8 clearly identified and demarcated the suit schedule property which is tallies with the sale deeds produced by the plaintiff. He argued that the plaintiff is the absolute owner and was in possession of the suit schedule property and she was dispossessed only in the month of August 2005. 47 O.S.725/2006
24. On the other hand the learned counsel for the defendant No. 1 to 3 argued that since this suit is filed under section 6 of Specific Relief Act the title in respect of the property in dispute cannot be gone through. She argued that the plaintiffs claim to have purchased the suit schedule property from the 6 th defendant as the General Power of Attorney holder but in Ex.P14 General Power of Attorney there is no mention regarding the survey number. She argued that the sale deeds Ex.P15 and 22 are not tallies with the document Ex.P16, confirmation deed and Ex.P14 General Power of Attorney as there is no mention regarding Sy.No. 60/3 in Ex.P16 and Ex.P14. She argued that the suit being summary proceeding question of title is irrelevant. She argued that there is no cause of action to file this suit and the alleged 48 O.S.725/2006 cause of action that during 2 nd week of August the defendant No. 1 to 5 wrongly dispossessed the plaintiff is imaginary one. She submitted that it is the specific contention of the defendant No. 1 to 3 is that they are the joint owners of the land bearing gramataka house list Khatha No. 566, property No. 71/1-O situated at Hulilmavu village, Bangalore south taluk, they being the legal heirs of the original owner late P.V.Balan who purchased the said property under Ex.D1 sale deed dated 3.10.1989. She argued that in the recital of the document Ex.D1 sale deed there is mention regarding existence of 1 square sheet roofed old house in the year 1989 itself which was constructed during 1974. She submitted that the house built there on was in dilapidated condition. The General Power of Attorney dated 22.9.1989 was executed in favour of one 49 O.S.725/2006 A.Padmanabha by the owner of the land, hence as a General Power of Attorney holder A.Padmanabha sold the property bearing No. 71/10 in favour of P.V.Balan. She argued that the defendants have produced the number of documents such as Ex.D2, Ex.D3, Ex.D4 tax paid receipts which was earlier point of time of the year 1989, 1990 upto 1993-94, Ex.D8 and Ex.D9 are the property register extract issued for the year 1988- 89 and 1993-94 in the name of original owner P.V.Balan showing the possession of the said property. She submitted that as per Ex.D28 P.V.Balan was filed objection before the Additional Land Acquisition Officer on 14.8.1990 wherein it is mentioned that there exists 2 ½ square building constructed in the said property and existing the same ever since 1974. She argued that P.V.Balan is continued possession till his death 50 O.S.725/2006 and after his death the defendant No. 1 to 3 being his legal heirs succeeded to the suit schedule property and they have executed General Power of Attorney in favour of defendant No. 4 in order to manage the suit schedule property. She argued that P.V.Balan and the defendant No. 1 to 4 have been in possession of the suit schedule property since 1989. She argued that the plaintiff has failed to establish her possession over the suit schedule property prior to six months before filing of this suit and she has failed to prove that she was dispossessed from the suit schedule property within six months before filing this suit. The learned counsel for the defendant No. 1 to 3 relied upon the decision reported in (1) AIR 1968 SC 1165 (2) AIR 1995 SC 1377 (3) AIR 1998 SC 1132 (4) AIR 1971 Bombay 148 and (5) AIR 1991 SC 395.
51 O.S.725/200625. The learned counsel for the defendant No. 4 also argued in the same line as argued by the learned counsel for the defendant No. 1 to 3. He argued that in order to prove that the disputed property originally belongs to P.V.Balan, the defendants have produced number of documents such as Ex.D1 copy of sale deed dated 3.10.1989, Ex.D2, Ex.D3, Ex.D4, Ex.D5, Ex.D6, Ex.D7 tax paid receipts of the year 1989-90, 94, 2005 respectively. He argued that the defendants have produced the document Ex.D8 demand register extract issued by Hulimavu grama panchayat which was standing in the name of P.V.Balan. Ex.D10 form No. 10 also stands in the name of P.V.Balan. He submitted that the defendants have produced self property assessment extract as per Ex.D10 to Ex.D12, encumbrance certificate from 1.4.1988 to 31.3.2004 as 52 O.S.725/2006 per Ex.D13. He submitted that as Srinath Babu and others have interfered with the peaceful possession and enjoyment of the property belongs to the defendant. Hence defendant No. 4 has lodged complaint to the police. With regarding to the same the defendant has produced the document Ex.D15, Ex.D24 to Ex.D27. He argued that as Srinivas Babu and others were interfered with the defendant No. 1 to 5 peaceful possession and enjoyment of the property, hence they have filed the suit in O.S.No.17490/2005 and obtained exparte order of temporary injunction. He argued that as during the pendency of the suit in O.S.No.17490/2005 plaintiffs of that suit were dispossessed by Srinivas Babu and others, hence they moved application before the Hon'ble court in O.S.No.17490/2005 and as per the order of Hon'ble 53 O.S.725/2006 court the possession was restored by executing the delivery warrant. He argued that P.V.Balan was in possession of the property mentioned in the written statement i.e., house list No. 566, site No. 71/1 O since 1989 and he continued in possession of the same till his death and after his death the defendant No. 1 to 3 being the legal heirs are became the absolute owners and in possession of the said property. Since defendant No. 1 to 3 are residing in Kerala they have executed Power of Attorney in favour of defendant No. 4 to look after the written statement schedule property. The defendant No. 4 being Power of Attorney holder renovated the existing old house situated in the suit schedule property and let out the same to the defendant No. 5 on rental basis. He argued that the plaintiff has failed to prove that she was in possession 54 O.S.725/2006 of the suit schedule property six months prior to filing of the suit. The plaintiff has failed to prove that the defendants have dispossessed her from the suit schedule property within six months from the date of institution of this suit. The learned counsel for the defendant No. 4 relied upon the decisions reported in (1) 1977(4)SCC 476 (2) 2013(9)SCC 221 (3) 2012(5)SCC 370 (4) 1998(3)SCC 331.
26. I have appreciated the rival contentions. I have already mentioned regarding the scope of provision under section 6 of the Specific Relief Transfer of Property Act. Since this suit is being in summary in nature the question of title or better rights of possession does not arise for adjudication in this suit. Since both sides have produced the copies of title 55 O.S.725/2006 deeds, i.e., sale deed and produced the revenue documents these documents can be looked into only to ascertain who was in possession of the suit schedule property six months prior to filing of this suit. According to the plaintiff she was in possession of the suit schedule property till the month of August 2005. But defendant No. 1 to 4 have taken contention that they were in possession of the property measuring 4000 square feet, i.e., east to west 80 feet, north to south 50 feet much prior to six months of instituting this suit. It is the contention of the defendants is that P.V.Balan who was purchased the property measuring east to west 80 feet and north to south 50 feet was in possession of the property since 1989. Since the plaintiff is seeking recovery of possession based on her dispossession anterior of the date of the suit so it is 56 O.S.725/2006 not necessary her to prove her title to the suit schedule property. On the other hand the defendants also need not prove their title over the suit schedule property. Since in this suit there are voluminous documents produced on both sides since this court need not give finding on the ownership of the suit schedule property, the documents produced by the parties and the oral evidence of the parties are verified only in order to ascertain who was in possession of the suit schedule property prior to six months of filing of this suit.
27. PW1 is the SPA holder of plaintiff. He is the husband of the plaintiff. The oral version of PW1 is that he and his wife plaintiff are residing in Banashankari III Stage and they are practicing doctors 57 O.S.725/2006 is not seriously disputed by the defendants in his cross- examination. PW1 in his examination-in-chief affidavit at para No. 11 has deposed that when he visited the spot during July 2005 he did not found any construction on the suit site. However when he and his wife visited the sites during October 2005 to his shock and surprise they found that an asbestos sheet roofed shed measuring 10 x 10 has been constructed on the schedule site and the 5 th defendant was in occupation of the same. On enquiry he came to know that the defendant No. 1 to 3 through their Power of Attorney holder defendant No. 4 constructed a shed and let out the same to defendant No. 5. PW1 in para 14 of his examination-in-chief affidavit has deposed that the defendant in the beginning of August 2005 trespassed on the suit schedule property and illegally 58 O.S.725/2006 dispossessed the plaintiff and illegally constructed the shed. In para 13 of his examination-in-chief affidavit he has deposed that the defendants have taken electricity connection during November 2005 clearly shows that their act is unlawful and illegal. In para 15 of his examination-in-chief affidavit he has deposed that the plaintiff has been wrongfully dispossessed from the suit schedule property by defendant No. 1 to 5 within six months prior to the date of filing of the suit. Thus on looking into examination-in-chief of PW1 according to him he and his wife visited the sites during October 2005 and found that asbestos sheet roofed shed measuring 10 x 10 has been constructed on the sites and on enquiry they came to know that the 5 th defendant is in occupation of the same and also came to know that defendant No. 1 to 3 through 59 O.S.725/2006 defendant No. 4 have constructed a shed and let out the same to defendant No. 5. PW1 by contending that when he was visited the spot during July 2005 he did not found any construction on the site. But when he and his wife visited to the suit schedule property in the month of October 2005 they have found the shed measuring 10 x 10 in the suit schedule property. Thereby the plaintiff has taken contention that she was dispossessed from the suit schedule property in the beginning of August 2005.
28. During the course of cross-examination of PW1 he has deposed that in October 2005 when he visited the suit property he was alone. He states that when he enquired defendant No. 5 he did not allow him inside and he said he does not know anything. PW1 60 O.S.725/2006 has deposed that at that time he had not lodged complaint to the police. He has not got issued legal notice prior to filing of the suit calling upon the defendants to quit and vacate the suit schedule property. When question asked him by the learned counsel for the defendants that how he came to know that in August 2005 plaintiff was dispossessed, then he answered earlier that he had visited his property and there was no structure in the property and so he say that in August 2005 plaintiff was dispossessed. The entire oral evidence of PW1 reveals that he was not personally seen defendant No. 1 to 4 were constructed the shed in the suit schedule property.
29. On the side of the plaintiff one witness is examined as PW3. PW3 in his examination-in-chief 61 O.S.725/2006 affidavit at para 4 has deposed as "himself and plaintiff's husband visited number of times to look after the sites during August 2005. I along with plaintiff's husband namely Chandrashekar went to the suit schedule property. Then we came to know that some people were in occupation. On enquiry with the people in the locality plaintiff's husband came to know about the dispossessed. Before that visit himself and Chandrashaker visited sites number of times and nobody has occupied the same. I am personally aware of the possession and enjoyment of the suit schedule property by the plaintiff. After my visit in August 2005 Mr.Chandrashekar told me that he is going to take legal action for the illegal acts of the defendant." 62 O.S.725/2006
30. On plain reading of the oral version of PW3 in his examination-in-chief he has given evidence quite contrary to the oral version of PW1. According to PW1 his last visit to the suit schedule property was in the month of July 2005. PW1 has deposed that when he visited the spot during July 2005 he did not found any construction in the suit schedule property. But when in the month of October 2005 he and his wife visited the site then he found that asbestos sheet roofed shed measuring 10 x 10 feet in the suit schedule property. PW1 has not deposed anything about the presence of PW3 when he visited the spot during July 2005 or at the time of his visit during October 2005. According to PW1 he was not visited to the suit schedule property in the month of August and September 2005. But quite contrary to the oral version 63 O.S.725/2006 of PW1 witness PW3 has deposed in his examination- in-chief that he and plaintiff's husband visited number of times to look after the site during August 2005. PW3 has also deposed that after his visit in August 2005 Chandrashekar told him that he is going to take legal action for the illegal acts of the defendant. When PW1 in his examination-in-chief itself has deposed that he was not at all visited the suit schedule site after July 2005 till October 2005 and he came to know about the shed only in the month of October 2005 how can PW3 say that he along with PW1 visited the suit schedule site several times in the month of August 2005.
31. The oral evidence of PW1 and 3 are not corroborating with each other with regarding to the 64 O.S.725/2006 alleged construction of shed made by the defendants in the disputed site. PW1 in his examination-in-chief itself has specifically deposed that he was lastly visited the sites during July 2005 and thereafter he again visited the site only in the month of October 2005. According to PW1 he was not at all visited the suit schedule property in the month of August and September 2005. But quite contrary to the oral evidence of PW1 witness PW3 in his examination-in- chief itself has deposed that he and plaintiffs husband visited number of times to look after the sites during August 2005. These inconsistent version of PW1 and 3 creates doubt about their version regarding the alleged dispossession of the plaintiff from the suit schedule property in the month of August 2005.
65 O.S.725/2006
32. PW1 in his examination-in-chief has deposed that in the month of October 2005 he and his wife visited the suit schedule property and found that the asbestos sheet roofed shed measuring 10 feet x 10 feet has been constructed on the schedule sites and the 5 th defendant was in occupation of the same. On enquiry he came to know that the defendant No. 1 to 3 through their Power of Attorney holder defendant No.4 Sivilan Kumar constructed a shed and let out the same to defendant No. 5 Narayanan. During the course of cross-examination of PW1 he has deposed that in October 2005 when he visited the suit property he was alone. At one stretch PW1 has taken contention that he and his wife, i.e., plaintiff were visited the site during October 2005 and to his shock and surprise they found the asbestos sheet roofed shed measuring 10 feet 66 O.S.725/2006 x 10 feet in the suit schedule property but in another stretch PW1 has deposed that he alone was visited the suit schedule property in the month of October 2005. It is pertinent to note that PW1 in his oral evidence has not deposed anything the existence of compound wall in the disputed property. PW3 in his cross- examination has deposed that he came to know about the encroachment as he saw construction of compound walls in the sites. If at all PW1 was actually visited the suit schedule property during the month of October 2005 he would have stated regarding the existence of compound wall in the disputed property. Neither in his examination-in-chief nor in his cross-examination PW1 has deposed regarding the existence of compound wall in the disputed property. PW1 has deposed that when he visited the suit site during October 2005 he 67 O.S.725/2006 found the asbestos sheet roofed shed measuring 10 feet x 10 feet has been constructed on the schedule site and 5 th defendant is in occupation of the same. But PW3 has not deposed anything about the existing or non- existence of asbestos sheet roofed shed in the disputed property. PW3 has deposed that when he along with plaintiff's husband namely Chandrashekar went to the suit schedule property then they came to know that some people were in unlawful occupation. On enquiry with the people in the locality plaintiff's husband came to know about the dispossession. According to PW1 and PW3 they came to know about the dispossession only through some third parties. In this suit the plaintiff has not examined any independent witnesses who have seen the defendant No. 1 to 4 have constructed the shed and compound wall in the suit 68 O.S.725/2006 schedule property. PW1 has deposed that he has not lodged any complaint to the police. But PW3 in his cross-examination has deposed that he informed the plaintiff and she lodged complaint to the police. In this suit there is absolutely no material on the side of the plaintiff to show that she has taken any action by lodging the complaint to the police. PW3 in his cross- examination stated that L.K.Sathyanarayana is his maternal uncle. He states that layout was formed by him and his uncle. In order to substantiate the oral evidence of PW3 that he was purchased site No. 33 the plaintiff has not produced and got marked the copy of sale deed. Since this suit is filed under section 6 of the Specific Relief Act we can look into only regarding the point of possession and not regarding the ownership. The plaintiff has shown the cause of action 69 O.S.725/2006 to file this suit as 2 nd week of August 2005 when the defendant No. 1 to 5 wrongfully dispossessed her from the suit schedule property and in October 2005 when she came aware of the same the plaintiff has paid the court fee under section 28 of Karnataka Court Fee and Suit Valuation Act by contending that this suit is for possession filed under section 6 of Specific Relief Act and court fee shall be computed on one of the market value. Even though the plaintiff has filed this suit under section 6 of the Specific Relief Act but while addressing the arguments by the learned counsel for the plaintiff he has argued as if this suit is filed for the relief of declaration of ownership of the plaintiff and for recovery of possession of the suit schedule property from defendant No. 1 to 5. The arguments addressed by the learned counsel for the plaintiff 70 O.S.725/2006 regarding the ownership of the suit schedule property cannot be decided in this suit as this suit is filed under section 6 of Specific Relief Act.
33. I have gone through the documents produced by the plaintiffs. Ex.P1 is the Power of Attorney executed by the plaintiff in favour of her husband PW1 to prosecute this suit. The document Ex.P1 is not seriously disputed by the defendants. Ex.P2 is the certified copy of the order sheet, Ex.P3 is the certified copy of the plaint, Ex.P4 is the certified copy of the written statement in O.S.No.17490/2005 filed before CCH-22, Mayohall court Bangalore filed by the present defendant No. 4 Sivilan Kumar as the General Power of Attorney holder of P.V.Ammuamma and P.V.Padmini and present defendant No. 5 P.V.Narayana against 71 O.S.725/2006 H.R.Srinath Babu S/o T.Ramaiah for the relief of permanent injunction. The defendants have also produced the certified copy of order sheet, certified copy of delivery warrant and mahazar drawn by the bailiff.
34. On perusal of the orders passed in O.S.No.17490/2005 as per order dated 26.3.2007 it would go to show that I.A. filed under section 151 C.P.C. filed by the plaintiffs in that suit came to be allowed and delivery warrant was issued against the defendant Srinath Babu H.R. and actual possession of the suit property of that suit is ordered to be handed over back to the plaintiff No. 1(a) to 1(c). In view of such order passed by the court in O.S.No.17490/2005 the delivery warrant was executed and the suit 72 O.S.725/2006 property of that suit restored to the possession of the plaintiffs of that suit. On perusal of the plaint schedule property description mention in O.S.No.17490/2005 that property is the property bearing house list No. 566 site No. 71/1-O situated at Hulimavu village, Begur hobli, Bangalore South Taluk, Bangalore, measuring east to west 80 square feet and north to south 50 feet together in all measuring 4000 square feet and the property being bounded on the east by road, west by private property, north by road, south by house list Khatha No. 71/1N together with residential house thereon, sheet roofed with one hall, kitchen, attached bathroom with a ringed wall for water and electricity facility. The plaintiff in O.S.No.17490/2005 filed that suit on 25.10.2005. The plaintiff in the present suit has filed this suit on 73 O.S.725/2006 23.1.2006. That means prior to filing of this suit the defendant No. 1 to 4 of this suit have filed suit in O.S.No.17490/2005 against Srinath Babu H.R. and obtained an exparte order of temporary injunction to restrain him from dispossessing them from the property without due process of law. In the written statement filed by the defendant in O.S.No.17490/2005 he has not taken any such contention that there exists no such property bearing house list No. 566, site No. 71/1-O situated at Hulimavu village, Begur hobli, Bangalore, measuring east to west 80 feet and north to south 50 feet together with a residential house sheet roofed with one hall, kitchen, attached bath room with a ring wall for water and electricity facility. No doubt in the written statement filed by H.R.Srinath Babu in O.S.No. 17490/2005 he has taken contention that 74 O.S.725/2006 B.S.Nagarathnamma has filed the present suit in O.S.No.725/2006. No doubt the present plaintiff was not party in that suit. But fact remains that as per the order of the court in O.S.No.17490/2005 the property measuring east to west 80 feet, north to south 50 feet in all measuring 400 square feet consisting of sheet roofed residential house with one hall, kitchen, attached bathroom was restored to the possession of the plaintiffs in that suit by executing the delivery warrant. The document Ex.P5 to Ex.P13 are the property tax paid receipts for the year 2003-2004 to 2007-2008 paid by the plaintiff under self assessment scheme with respect to the property site No. 31 and
32. The document Ex.P14 is the registered General Power of Attorney dated 25.3.1994 executed by T.Ramaiah and his son Srinath Babu in favour of 75 O.S.725/2006 K.L.Sathyanarayana, i.e., defendant No. 6 in respect of property house list No. 72/9, Khatha No. 552 site No. 31 and 32 measuring east to west 80 feet and north to south 60 feet situated at gramatana, Hulimavu village, Begur hobli, Bangalore south taluk. In Ex.P14 there is no separate mention regarding the measurement of site No. 31 and 32. By mentioning the total extent of site No. 31 and 32 as east to west 80 feet, north to south 60 feet this document was executed by T.Ramaiah and his son Srinath Babu in favour of L.K.Sathya Narayana. During the course of cross-examination of DW1 he has admitted the signatures of T.Ramu and H.R.Srinath Babu, hence these signatures are marked at Ex.P14(a) and Ex.P14(b). Ex.P15 is the certified copy of the registered sale deed dated 1.9.2003 with respect to site No. 31, measuring east to west 40 feet and north to 76 O.S.725/2006 south 60 feet bounded towards east site No. 32, west site No. 30, north by road, south site No. 34. the document Ex.P22 is the certified copy of site No. 32, measuring east to west 40 feet and north to south 60 feet bounded towards east by road, west by site No. 31, north by road, south by site No. 33 belongs to Kum.N.Shwetha. On combined reading of the document Ex.P15, Ex.P22, Ex.P14 and Ex.P15 the boundaries and extent tallies. Since in this suit we cannot go into deep regarding the title of the suit schedule property on the basis of the sale deeds it cannot be held that the plaintiff was in possession of the suit schedule property prior to six months of filing of this suit. The property claimed by defendant No. 1 to 4 also having same boundary towards eastern side and northern side. The defendant No. 1 to 5 have 77 O.S.725/2006 taken contention that P.V.Balan purchased the property on 3.20.1989 from one S.A.Padmanabha who was representing as General Power of Attorney holder of T.Ramaiah, which measures east to west 80 feet and north to south 50 feet bounded on the east by road, west by private property, north by road, south by house list Khatha No. 71/1N. On perusal of the property claimed by the plaintiff as well as the defendant No. 1 to 5 it would go to show that both of them have claimed the corner site to which there exists road towards northern side and eastern side. Only the boundaries towards west and south is differs. The plaintiff has taken contention that towards western side of her suit property there exists site No. 30 and towards southern side of her property there exists site No. 33 and 34. But the defendants have taken 78 O.S.725/2006 contention that towards western side of their property there exists a private property and towards southern side of their property there exists property in H.L. Khatha No. 71/1N. The plaintiff as well as the defendants have not got marked any approved layout plan. No doubt both the plaintiff as well as the defendant No. 4 have produced the xerox copy of layout plan. Since these documents are xerox copies this court cannot rely on these xerox copies of the layout plan.
35. The learned counsel for the plaintiff vehemently argued that PW2 who is the Court Commissioner has measured the property and mentioned the boundaries and extent and encroached area by the defendants in his sketch as per Ex.C8(a). 79 O.S.725/2006 No doubt PW2 Court Commissioner in his report as per Ex.C8(a) prepared sketch with regarding to the property which is in possession of the defendant No. 1 to 5 and also demarcated the remaining area of 10 feet towards southern side. PW2 in his sketch as per Ex.C8(a) mentioned site No. 31 measuring east to west 40 feet and north to south 60 feet and site No. 32 measuring east to west 40 feet and north to south 60 feet in all site No. 31 and 32 measuring east to west 40 + 40 and north to south 60 feet, total measurement of 4,800 square feet. It is demarcated in Ex.C8(a) that out of these 4,800 square feet the defendants are in possession of the property measuring 80 feet x 50 feet towards northern portion. It is also mentioned in Ex.C8(a) report that there exists a house measuring east to west 20 feet and north to south 18 feet in site No. 80 O.S.725/2006
32. It is also mentioned in Ex.D8(a) that the property which is in possession of the defendants measuring east to west 80 feet and north to south 50 feet surrounded by the compound wall. It is pertinent to note that the plaintiff has taken contention that the defendant No. 1 to 5 dispossessed her in the 2 nd week of August 2005 by constructing asbestos sheet shed measuring 10 feet x 10 feet. But the defendant No. 1 to 5 have taken contention that defendant No. 4 got constructed a dwelling unit of a sheet roofed one with 1 hall, kitchen, attached bathroom with a ringed well for water and leased the same to the defendant No. 5 for a period of two years vide a lease agreement commencing from 20.8.2005. In this suit the lease deed produced by the defendant No. 4 has not marked, the same was impounded by this court for insufficiency 81 O.S.725/2006 of the stamp duty. The defendants have not paid deficit stamp duty and penalty as ordered by this court. Hence the lease deed and General Power of Attorney produced by the defendants was impounded. This court can pass an order to send the impounded document to the Deputy Commissioner for collection of duty and penalty from the defendant No. 1 to 5. In this suit it is admitted that as on the date of filing of the suit, the defendant No. 1 o 5 are in possession of the disputed property. The plaintiff has not taken any contention that defendants have encroached only to the extent of 4000 square feet out of 4800 square feet mentioned in the plaint schedule. It is the contention of the plaintiff is that the defendant No. 4 by constructing the asbestos sheet roofed shed measuring 10 x 10 feet dispossessed the plaintiff from the suit 82 O.S.725/2006 schedule property during August 2005. It is not the contention of the plaintiff is that she is in possession of any of the portion of the suit schedule property. But in Ex.C3 report of the Court Commissioner it is mentioned that the plaintiff is in possession of the property measuring east to west 80 feet and north to south 10 feet, i.e., towards southern side of compound wall. According to the Court Commissioner report defendants are in possession of the property measuring east to west 80 feet and north to south 50 feet towards northern portion. The report of the Court Commissioner cannot rely in this suit in order to decide who is the owner of the suit schedule property. Since this suit is filed under section 6 of Specific Relief Act and this is a summary suit, this court cannot rely the Court Commissioner report in order to decide who 83 O.S.725/2006 is the owner of the property which is now in possession of defendant No. 1 to 5 and remaining 80 x 10 feet property mentioned in the Commission report. It is the specific contention of the plaintiff is that defendant had constructed the shed measuring 10 feet x 10 feet. But in the Court Commissioner report the Court Commissioner mentioned the existence of house measuring east to west 20 feet and north to south 18 feet. It is not the contention of the plaintiff is that the defendants after filing this suit expanded the shed to the extent of 20 feet x 18 feet. The Court Commissioner report with regarding to the possession of the property supports the case of the defendants because it is the specific contention of the defendant No. 1 to 5 is that there exists residential unit of about 3 squares with one hall, kitchen, attached bathroom 84 O.S.725/2006 with a ringed well for water. The plaintiff has taken contention that the defendants have obtained electricity for the first time in the month of November 2005. In order to substantiate this contention the plaintiff has not produced any document. It is the specific case of the defendant No. 1 to 5 is that late P.V.Balan purchased the property in the year 1989 wherein there exists old house at that time. The defendants have relied upon the document Ex.D1 certified copy of the sale deed dated 3.10.1989 wherein it is clearly mentioned regarding the existence 1 square sheet roofed old house thereon constructed during 1974. It is not the contention of the plaintiff is that P.V.Balan was in possession of any other property within the vicinity of the land in Sy.No. 60/3. No doubt in Ex.D1 there is no mention regarding the survey number. The 85 O.S.725/2006 defendants have also taken contention that their property also formed in the land in Sy.No. 63/3. The defendants have also taken contention that the land was originally belongs to R.Ramaiah who executed the General Power of Attorney in favour of S.A.Padmanabha. On the strength of General Power of Attorney S.A.Parmanath sold the property bearing gramatana house list No. 566, site No. 71/1-O situated at Hulimavu village, Begur hobli, Bangalore south taluk measuring east to west 80 feet and north to south 50 feet together in all measuring 4000 square feet. On perusal of the Commissioner report as per Ex.C8(a) it would go to show that defendant No. 1 to 5 are in possession of the property measuring east to west 80 feet and north to south 50 feet in all measuring 4000 square feet. The contention taken by the defendants 86 O.S.725/2006 that they were in possession of the property measuring east to west 80 feet and north to south 50 feet in all measuring 4000 square feet even prior to six months of filing of this suit. In order to substantiate this contention the defendants have produced the document Ex.D1 certified copy of the sale deed dated 3.10.1989. In Ex.D1 there is clear mention that there exists sheet roofed old house built thereon constructed during 1974. The defendants have also produced the document Ex.D2 tax paid receipt of the year 1989-90. Ex.D3 tax paid receipt of the year 1990, Ex.D4 tax paid receipt of the year 1991, 1992, 1993, 1994 and also produced the subsequent documents of the year 2003 to 2006 which are marked at Ex.D5 to Ex.D7. It is the specific contention of the defendants is that P.V.Balan was in possession of the property measuring 87 O.S.725/2006 east to west 80 feet and north to south 50 feet till his death in the year 2004. After the death of P.V.Balan the defendant No. 1 to 3 being the legal representatives have continued in possession of the property measuring 4000 square feet and they being resident of Kerala entrusted the defendant No. 4 to look after the property. Hence defendant No. 4 who continued in possession has constructed the dwelling house and leased the same to defendant No. 5. The defendants have produced the document Ex.D8 property register extract of the year 1988-89 which was standing in the name of P.V.Balan. Ex.D9 is the Demand Register Extract of the year 1993-94 in respect of the property bearing No. 71/1-O standing in the name of P.V.Balan. Ex.D10 is the self assessment extract of the year 2003-04 which is standing in the 88 O.S.725/2006 name of P.V.Balan. Ex.D3 is the encumbrance certificate from the year 1988 to 2004 which would go to show that in view of the document executed by S.A.Padmanabha in favour of Hoothan Vithil Balan. The property No. 71/10 entered in the name of P.V.Balan which measures 80 x 50 feet consisting of 1 square house. The defendants have produced the document Ex.D28 copy of letter dated 14.8.1990 given by P.V.Balan to the additional Land Acquisition Officer, Bangalore Development Authority, Kumara Park west, Bangalore, wherein he has clearly stated that T.Ramaiah formed private layout in Sy.No. 60/3 of Hulimavu village and got approved the private layout plan from the Secretary, Hulimavu village panchayat office on 15.6.1988 and formed 15 sites thereon and sold the same. In the said course of time he 89 O.S.725/2006 purchased site No. 71/1-0 (corner site) Khatha No. 566 of Hulimavu village, Begur hobli, by paying sale consideration and constructed 2 ½ square building thereon with ACC sheet and red-oxide flooring and also fenced the entire site measuring east to west 80 feet and north to south 50 feet by barbed wire. It is requested to the Additional Land Acquisition Office, BDA to drop the acquisition proceedings in respect of this property. This document Ex.D28 of the year 1990. The defendants have produced the document Ex.D29 form 'B' property register which would go to show that the property bearing No. 60/3, 566/71/1-O measuring 50 feet x 80 feet standing in the name of Sivilan Kumar i.e., defendant No. 4. As I already observed whether plaintiff is the owner of the suit schedule property or it is the defendants who are the 90 O.S.725/2006 owners of the written statement schedule property cannot be decided in this suit as this suit is filed under section 6 of Specific Relief Act. The plaintiff is claiming the property which is in possession of the defendant No. 1 to 5 claiming that it is her property but defendant No. 1 to 4 have taken contention that the property in which they are in possession are belongs to them and they are the owners and in possession of the same. Since in this suit this court cannot decide regarding the ownership of the property and also cannot decide whether the property which is now in possession of the defendants is property in site No. 31 and 32 or it is the property in house list No. 566, site No. 71/1-O because in order to decide this point the court is to decide regarding this property which is not permissible when we dealing with the suit 91 O.S.725/2006 filed under section 6 of the Specific Relief Act. In view of section 6 of the Specific Relief Act only finding can be given by this court whether the plaintiff was in possession of the suit schedule property about six months prior to filing of this suit and whether the plaintiff proves that the defendant No. 1 to 5 have dispossessed the plaintiff from the suit schedule property within six months prior to filing of this suit. The oral evidence of PW1 to PW3 is not sufficient to hold that the plaintiff was in possession of the suit schedule property prior to six months from the date of filing of this suit. The document produced by the defendants i.e., Ex.D1 to Ex.D37 would go to show that the defendant No. 1 to 4 were in possession of the suit schedule property much prior to six months from the date of filing of this suit. On the basis of the 92 O.S.725/2006 document Ex.P18 and Ex.P22 certified copy of the registered sale deed dated 1.9.2003 and on the basis of the document Ex.P15 and Ex.P16 it cannot be held that the plaintiff was in possession of the suit schedule property prior to six months of the date of filing of this suit. The arguments of the learned counsel for the plaintiff that as the legal heirs of defendant No. 1 and 2 and defendant No. 3 have already cancelled the General Power of Attorney executed in favour of defendant No. 4 entire defence of defendant No. 1 to 5 should be struck of as the written statement was filed only signing by defendant No. 4 is not acceptable because the cancellation of General Power of Attorney are all subsequent events during the pendency of this suit. Though the legal heirs of defendant No. 1 and 2 and defendant No. 3 already cancelled the General 93 O.S.725/2006 Power of Attorney executed in favour of defendant No. 4 that cannot be ground to say that the defendant No. 4 has no authority to continue with the possession of the suit schedule property. It is now settled principle of law is that no person who is in settled possession of the property can dispossess without due process of law as the plaintiff filed this suit for recovery of possession based on her previous possession by contending that she wrongfully dispossessed within six months of filing of this suit only question to be decided in this suit whether the plaintiff was in possession at any time six months prior to the date of filing of the suit. The oral evidence of PW1 which is not corroborating with the oral evidence of PW3 is not sufficient to hold that the plaintiff was in possession of the suit schedule property six months prior to the date of filing of the suit. PW1 94 O.S.725/2006 has deposed that he was lastly visited the suit schedule property during July 2005 and thereafter he was visited to the suit schedule property during October 2005 his deposition is that when he was visited to the suit schedule property during July 2005 there was no construction on the suit site but when he visited in the month of October 2005 he found an asbestos sheet roofed shed measuring 10 feet x 10 feet has been constructed on the suit schedule site. But quite contrary to the oral evidence of PW1 witness PW3 has deposed that he along with PW1 visited number of times to the suit site during August 2005. PW3 has not deposed anything about the construction of 10 x 10 feet shed in the suit schedule property. PW3 in his cross-examination deposed that he came to know about the encroachment as he saw the construction of 95 O.S.725/2006 compound walls in the suit schedule sites. But PW1 has not deposed anything about the construction of compound wall. PW2 Court Commissioner in his report as per Ex.C8(a) mentioned that at the time of he visited the property he found there exists the house measuring 20 feet x 18 feet and the defendants are in possession of the property measuring east to west 80 feet and north to south 50 feet which is surrounded by the compound wall. PW1 in his examination-in-chief has deposed that he and his wife plaintiff visited the sites during October 2005 and then they found the asbestos sheet shed measuring 10 feet x 10 feet has been constructed on the suit schedule sites. It is pertinent to note that in the plaint the plaintiff has mentioned that during 2 nd week of October 2005 her husband went to the suit schedule property to take 96 O.S.725/2006 inspection of the same at that time to his shock and surprise he found that asbestos sheet roofed shed measuring 10 feet x 10 feet has been constructed on the said schedule sites. The oral evidence of PW1 is quite contrary to the plaint averments because in the plaint the plaintiff has stated that her husband alone went to the suit schedule property during the 2 nd week of October 2005 to take inspection of the same then he found asbestos sheet roofed shed measuring 10 feet x 10 feet but PW1 in his examination-in-chief has deposed that he and his wife visited the sites during October 2005 and found asbestos sheet roofed shed measuring 10 feet x 10 feet. The uncorroborated oral version of PW1 to PW3 which is quite contrary to the pleading, i.e., plaint itself creates doubt about the contention taken by the plaintiff that her husband 97 O.S.725/2006 during October 2005 visited the suit schedule property and found the asbestos sheet roofed shed measuring 10 x 10 feet at first time. In the plaint the plaintiff has taken contention that her husband was taken by surprise in the 2 nd week of October 2005 as he found asbestos sheet roofed shed in the suit schedule site since when he visited the site in July 2005 there was no construction. It is not the contention of the plaintiff in the plaint is that she was visited the suit schedule property either in the month of July 2005 or in the month of October 2005. According to her it was her husband who visited the suit schedule property in these two months. PW1 has deposed that in the month of October when he along with his wife visited the sites then they found the asbestos sheet roofed shed measuring 10 feet x 10 feet. He has deposed that 98 O.S.725/2006 when he visited the spot during July 2005 he did not found any construction on the site. According to PW1 he was not at all visited to the suit schedule property during the month of August 2005 and September 2005 but quite contrary to the oral evidence of PW1 witness PW3 has deposed that he and PW1 visited number of times to look after the sites during August 2005. That itself falsifies the contention taken by the plaintiff is that they have found the construction in the suit schedule property only in the month of October 2005. The plaintiff neither in the plaint PW1 in his oral evidence has deposed regarding the date on which he was visited the suit schedule property in the month of July 2005. The plaintiffs have not specifically pleaded regarding the date of dispossession. The uncorroborated oral evidence of PW1 and PW3 is not 99 O.S.725/2006 sufficient to hold that the defendant No. 1 to 5 have wrongly dispossessed the plaintiff in the month of August 2005. On the other hand the oral evidence of DW1 which is supported by the document Ex.D1 to Ex.D37 is sufficient to hold that defendant No. 1 to 4 were in possession of the property even much prior to six months of filing of this suit. The plaintiff has faile dto prove that she acquires the possession of the suit schedule property in pursuance of two sale deeds dated 1.9.2003. The plaintiff has failed to prove that the defendant No. 1 to 5 have dispossessed the plaintiff from the suit schedule property about six months prior to filing of the suit. The plaintiff has failed to prove that the defendant No. 1 to 5 have put up illegal structure on the suit schedule property. Hence I answer issue No. 1 to 3 in the Negative.
100 O.S.725/2006
36. Issue No. 6: Since the plaintiff has filed this suit under section 6 of the Specific Relief Act, the question of deciding the title or ownership of the suit schedule property does not arise. Issue No. 6 is framed that whether the property described in the schedule to the plaint and the property stated in the written statement of the defendant No. 1 to 5 are one and the same. In order to decide this issue this court has to decide regarding the ownership of the properties. Since this suit is filed under section 6 of Specific Relief Act this issue does not survive for consideration. If this court gives any finding on this issue then it will definitely cause injustice to the parties. This suit is not filed for the relief of declaration of ownership and for recovery of possession based on title. Hence this court of the opinion that 101 O.S.725/2006 issue No. 6 does not survive for consideration. Hence I answer this issue accordingly.
37. Issue No. 7: The defendant No. 1 to 5 have taken contention that the subject matter of the suit is not properly valued and court fee paid by the plaintiff is insufficient. Even though the defendants in their written statement have taken contention regarding the insufficiency of court fee but in order to substantiate the contention taken by the defendants regarding the court fee they have not produced any documents to show the actual market value of the disputed property. During the course of cross-examination of PW1 nothing is suggested or elicited that court fee paid by the plaintiff is insufficient. In the valuation slip filed by the plaintiff along with the plaint the plaintiff has 102 O.S.725/2006 valued the suit property at Rs.10,00,000/- and court fee is paid under section 28 of Karnataka Court Fee and Suit Valuation Act and as the suit is for possession filed under section 6 of Specific Relief Act by computing the court fee on one half of the market value, the plaintiff has paid court fee of Rs.33,375/-. DW1 in his examination-in-chief has not deposed anything about how the court fee paid by the plaintiff is insufficient. In the absence of any evidence regarding the market value of the property and court fee this court of the opinion that the court fee paid by the plaintiff is sufficient. Hence I answered issue No. 7 in the Negative.
38. Issue No. 8: The defendant No. 1 to 5 have taken contention that the suit of the plaintiff is barred 103 O.S.725/2006 by period of limitation. The learned counsel for the defendant No. 4 argued that this suit being the suit filed under section 6 of Specific Relief Act should have filed within six months from the date of possession of the defendants. He argued that in this suit the plaintiff never in possession either the plaint schedule property or written statement schedule property. He argued that Sri.P.V.Balan was in possession of the property since 1989 and after his death the defendant No. 1 to 3 being his legal heirs continued in possession and as the defendant No. 1 to 3 authorised the defendant No. 4 to look after the property hence the defendant No. 4 who renovated the house situated in the written statement schedule property was let out the same to the defendant No. 5 for two years. He argued that since the plaintiff has not filed any suit for 104 O.S.725/2006 recovery of possession within six months the suit filed under section 6 of Specific Relief Act is barred by period of limitation. The learned counsel for the defendant No. 1 to 3 also argued that the plaintiff has utterly failed to prove that she was in possession of the suit schedule property within six months prior to the filing of the suit. Since the plaintiff has failed to prove her possession over the suit schedule property prior to six months of filing of the suit, this suit filed under section 6 of Specific Relief Act is barred by period of limitation. The learned counsel for the plaintiff argued that the plaintiff has filed this suit within six months from the date of her dispossession. Hence the suit of plaintiff is not barred by period of limitation.
105 O.S.725/2006
39. I have appreciated the rival contentions. While discussing issue No. 1 to 3 this court held that the plaintiff has failed to prove that she was in possession of the suit schedule property prior to six months from the date of filing of the suit till August 2005 the date on which she claims she dispossessed from the suit schedule property. While discussing issue No. 2 this court held that the plaintiff has failed to prove that the defendant No. 1 to 5 have dispossessed the plaintiff from the suit schedule property about six months prior to filing of this suit by putting up illegal structure. The provision under section 6 of Specific Relief Act is very clear that the suit under section 6 shall file within six months from the date of dispossession. Since in this suit the plaintiff has failed to prove her possession prior to six months of filing of this suit and 106 O.S.725/2006 failed to prove that she has dispossessed from the suit schedule property within six months prior to institution of this suit, this court of the opinion that the suit filed by plaintiff under section 6 of Specific Relief Act is barred by period of limitation as the plaintiff has not filed this suit within six months of the possession of the defendants. No doubt in this suit this court cannot give finding whether the plaintiff is entitled for the relief of declaration of ownership and recovery of possession based on title and previous possession that aspect can be decided only if plaintiff institute suit as provided under section 5 and section 9 of Specific Relief Act. If at all the plaintiff files suit for the relief of declaration of ownership and for recovery of possession, in that event the article 64 and 65 of the Limitation Act can be invoked. But the present suit is 107 O.S.725/2006 filed under section 6 of the Specific Relief Act. The provision under section 6 of Specific Relief Act itself is very clear that no suit under this provision can be filed after the expiry of six months from the date of dispossession. In this suit the plaintiff has failed to prove that she has dispossessed from the suit schedule property within six months prior to instituting this suit. Under such circumstances this court of the opinion that this suit filed under section 6 of the Specific Relief Act is barred by period of Limitation. Hence I answered issue No.8 in the affirmative.
40. Issue No. 4 and 5: In this suit the plaintiff has prayed for recovery of possession of the suit schedule property on the ground that she was wrongfully dispossessed by defendant No. 1 to 5 in the 108 O.S.725/2006 2 nd week of August 2005. The plaintiff prayed for mandatory injunction directing the defendant No. 1 to 5 to remove the illegal structure constructed by them on the suit schedule sites. While discussing issue No. 1 to 3 this court held that the plaintiff has failed to prove that defendant No. 1 to 5 have dispossessed her from the suit schedule property about six months prior to filing of this suit. The plaintiff has also failed to prove that defendant No.1 to 5 have put up illegal structure on the suit schedule property. While discussing issue No. 8 this court held that since the plaintiff has not filed this suit within six months from the date of possession of the disputed property by defendant No. 1 to 5 the suit of the plaintiff is barred by limitation. In view of my finding on issue No. 1 to 3 and issue No. 8 the plaintiff is not entitled for the 109 O.S.725/2006 relief of recovery of possession and for mandatory injunction as prayed in the plaint. Hence I answer issue No. 4 and 5 in the Negative.
41. Issue No. 9: In view of my findings on issue No. 1 to 5, 7 and 8 the plaintiff is not entitled for the relief to direct defendant No. 1 to 5 to remove the structure constructed by them on the suit schedule sites. The plaintiff is also not entitled for the relief of vacant possession of the suit schedule property. In this suit the plaintiff has failed to prove that defendant No. 1 to 5 have wrongfully dispossessed her from the suit schedule property during the 2 nd week of August 2005 by constructing the structure in the suit schedule property. The oral evidence of DW1 and the document Ex.D1 to Ex.D37 and oral evidence of PW1 110 O.S.725/2006 to PW3 would go to show that the defendant No. 1 to 5 are in possession of the suit schedule property much prior to six months from the date of filing of the suit. Hence the plaintiff is not entitled for decree as prayed in the plaint. Hence I answer issue No. 9 in the Negative.
42. Issue No. 10: In view of my findings on the above issue No. 1 to 5, 7 to 9, I proceed to pass the following:
ORDER Suit of the plaintiff is dismissed.
Parties shall bear their own cost.
Draw decree accordingly.111 O.S.725/2006
Office shall send the
impounded document such as
General Power of Attorney and
lease deed produced by the
defendants to the concerned DC for
collection of duty and penalty as
per law.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 30th day of August 2021.) (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - Dr.N.Chandrasekhar PW2 - Rajgopal B.G. PW3 - H.K.Narayana Murthy
Witness examined for the defendant/s :
DW1 - Sivilankumar 112 O.S.725/2006 Documents marked for the plaintiff/s :
Ex.P1 - Power of Attorney Ex.P2-4 - Certified copy of order sheet, plaint and written statement Ex.P5-13 - Property tax paid receipts with copy of self assessment declaration form Ex.P14 - Original register Power of Attorney Ex.P15,16 - certified copy of sale deed and confirmation deed Ex.P17 - Certificate Ex.P18 - Endorsement issued by Tahsildar stating that mutation extracts could not be furnished Ex.P19-21 - 3 RTC extracts Documents marked for the Court Commissioner :
Ex.C1, C2 - Commission work and covering letter with index given by him to the court along with report Ex.C3 - Commission report Ex.C4,5 - Statements 113 O.S.725/2006 Ex.C6 - Notice Ex.C7 - Rough sketch Ex.C8 - Survey sketch Documents marked for the defendant/s :
Ex.D1 - certified copy of registered sale deed
dated 3.10.1989
Ex.D2 - Pavathi dated 23.12.1989 regarding
Hulimavu property No. 71/1-0
Ex.D3 - Tax paid receipt for 1990-1996
Ex.D4 - Tax paid receipt for 1991-1994
Ex.D5 - Tax paid receipt dated 30.6.2005 for
2003-2004
Ex.D6 - Tax paid receipt dated 30.6.2005 for
2004-2005
Ex.D7 - Tax paid receipt dated 30.6.2005 for
2005-2006
Ex.D8 - Tax Demand Register for 1988-89
Ex.D9 - Tax Demand Register for 1993-94
Ex.D10 - Self assessment tax for 2003-04
Ex.D11 - Self assessment tax for 2004-05
114 O.S.725/2006
Ex.D12 - Self assessment tax for 2005-06 Ex.D13 - encumbrance certificate for 1.4.1988 to 31.3.2004 Ex.D14 - Complaint dated 20.7.2007 given to Police Commissioner Ex.D15 - Complaint extract dated 20.7.2007 given to Police Commissioner Ex.D16 - certified copy of order sheet in O.S.No.17490/2005 Ex.D17 - certified copy of plaint in O.S.No.17490/2005 Ex.D18 - certified copy of order sheet in O.S.No.17490/2005 Ex.D19 - certified copy of summons in O.S.No.17490/2005 Ex.D20 - certified copy of mahazar in O.S.No.17490/2005 Ex.D21 - certified copy of order sheet in PCR No.22788/2006 Ex.D22 - certified copy of complaint in PCR No.22788/2006 115 O.S.725/2006 Ex.D23 - certified copy of application dated 20.7.2007 given to Bommanahalli Sub-
Registrar office Ex.D24 - certified copy of complaint dated 2.11.2006 Ex.D25 - Complaint extract dated 24.11.2006 Ex.D26 - Postal receipt Ex.D27 - Postal acknowledgment Ex.D28 - Letter dated 14.8.1990 written to Land Acquisition Officer Ex.D29 - B property register extract Ex.D30,31 - 2 Tax paid receipts Ex.D32,33 - 2 encumbrance certificates Ex.D34 - Tax paid receipt for 2002-03 Ex.D35 - Self assessment of tax for 2002-2003 Ex.D36 - Electricity bill receipt Ex.D37 - Electricity bill (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
116 O.S.725/2006 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER Suit of the plaintiff is dismissed. Parties shall bear their own cost. Draw decree accordingly. Office shall send the impounded document such as General Power of Attorney and lease deed produced by the defendants to the concerned DC for collection of duty and penalty. XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE. 117 O.S.725/2006