Bangalore District Court
H.Vijayalakshmi vs P.Veera Ragavalu on 19 November, 2018
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH.25).
Dated: This the 19th day of November 2018
Present: Sri.Ron Vasudev, B.Com. LL.B, (Spl),
III Addl.City Civil & Sessions Judge, Bengaluru.
O.S.2203/2012
Plaintiff: H.Vijayalakshmi, W/o.H.Hanu-
manthappa, aged about 60 years,
R/at No.522/6, 10th Main, 2nd Block,
Rajajinagar, Bengaluru-560010.
(By Sri R.Purushotham, Advocate)
V/S
Defendants: 1. P.Veera Ragavalu, S/o.Pandu-
ranga Naidu, aged about 54
years, R/at No.123, 3rd Main,
Vittalnagar, Near ISRO,
J.P.Nagar, Bengaluru-560078.
2. G.P.Gopi, S/o.late Panchala-
chetty, aged about 40 years,
R/at No.187, 5th Main, Minaz-
nagar, J.P.Nagar, Bengaluru-
560078.
(By Sri KVSP Advocate)
Date of Institution : 27.03.2012
Nature of Suit : For declaration, permanent
and mandatory injunctions
and for possession
Date of commencement of : 10.07.2013
evidence
Date of pronouncement of : 19.11.2018
Judgment
Total Duration : Year/s Month/s Day/s
06 07 23
(RON VASUDEV)
III Addl.City Civil & Sessions Judge,
Bengaluru.
2 O.S.2203/2012
JUDGMENT
This is a suit for declaration, permanent and for mandatory injunctions and for possession.
2. There are two schedules in the plaint. The schedule-A consists of site No.3, house list No.106/3, khata No.116/1, measuring East-West: 60 feet, North-South: 33 feet situating at Arakere village, Hulimavu Group Panchayat, Bengaluru South Taluk, new BBMP No.106/3/3/116/1, Ward No.93 consisting of one square ACC sheet building and bounded by:
East- site No.2 West- site No.4 North- private property South- road Schedule-B is the western portion of Schedule-A, measuring East-West: 25 feet, North-South: 25 feet and bounded by:
East- eastern portion of the same site West- site No.4 North- private property South- road
3. Summary of the plaint averments is that: one Y.Venugopala Reddy was the owner and in possession of property bearing Sy.No.95 of Arakere, Hulimavu Group Panchayat, Bengaluru South Taluk and the said Venugopala Reddy and others executed registered GPA in favour of S.Vishwanatha s/o.Shankarappa on 12.02.1992, to develop 3 O.S.2203/2012 the said land, to form layout and to alienate the sites in favour of prospective purchasers. Accordingly the said S.Vishwanatha s/o.Shankarappa developed that land and having formed the sites, sold schedule-A property to the plaintiff under registered sale deed dated 17.02.1992 and put her in possession. Thus the plaintiff is the absolute owner and was in possession and enjoyment of the said property. That plaintiff has constructed an asbestos sheet house in it long back and has put up compound. That at the time of purchasing the said property it was within the jurisdiction of Bommanahalli CMC as such she filed an application on 28.07.1994 to register her name in the records of the said office. She also paid property taxes regularly and once the said property was included within the jurisdiction of BBMP, she got khata in her name from BBMP and started paying taxes to it. Now the schedule-A property bears khata No.106/3/ 3/116/1. When things stood thus in the first week of August-2011 the defendants being the utter strangers to the said A-schedule property, along with their workers and their henchmen, tried to interfere in her possession by entering into the said property. They also started digging the earth in the portion of it viz in the B-schedule. Immediately after coming to know about the same plaintiff proceeded to the spot along with her husband and sons and she was successful in preventing them from making any construction there. Then having left the spot, again the defendant No.1 came to the schedule property on 03.09.2011 in the absence of plaintiff and her family members and tried to put up construction in the B-schedule property. It was once again 4 O.S.2203/2012 resisted by the plaintiff with her husband and a complaint was filed in the jurisdictional Police Station on the same day. Inspite of it when the plaintiff had been to the schedule property along with her husband on 19.02.2012, she saw that the defendants had put up foundation and pillers in the area measuring 25x25 feet viz the B-schedule property. Her effort to protect the said property through the assistance of jurisdictional police having gone in vain, she is before this court. That cause of action for the suit arose in the month of August-2011 and again on 03.09.2011. Further it arose in the month of February and March-2012 and it is continuing one. Since the defendants have illegally put up the foundation and pillers in the schedule-B property, which is valued at Rs.5 lakhs, the plaintiff seeks for demolition of the said illegal construction and for possession. Wherefore the plaintiff prays for the relief of permanent injunction to restrain the defendants, their agents, contractors, coolies, henchmen or any other person claiming under them from interfering in her peaceful possession and enjoyment of schedule-A property; for an order of prohibitory injunction to restrain the defendants or anybody claiming under them from entering A- schedule property; for an order of permanent injunction to restrain the defendants or anybody claiming through them from putting up construction or to continue to put up construction on the schedule-A property; for an order of mandatory injunction to direct the defendants or anybody claiming through them to remove the illegally put up foundation and pillars on the schedule-B property measuring 25x25 feet or to permit the plaintiff to remove the said illegal 5 O.S.2203/2012 erection at the cost and consequences of the defendants; for possession of the said B-schedule property; for an order of permanent injunction to restrain the defendants or anybody claiming through them from putting up further construction in the A-schedule property and for such other reliefs.
4. The defendants appeared and filed a common written statement and summary of it is that; that originally the land bearing Sy.No.96/3 of Arakere villge, Begur Hobli belonged to the joint family of late Venkatappa; V.Gurappa Reddy, Y.Yellappa Reddy, Mr.Abbaiah Reddy and Rama Reddy s/o.late Doddathayappa Reddy (predeceased son of late Venkatappa). That on 02.04.2007 there was a family partition amongst the members of the said family and in that partition Sy.No.96/3 measuring 37 guntas fell to the share of said Y.Gurappa Reddy s/o.Venkatappa. That the said Gurappa Reddy died leaving behind his wife-Nagamma. Since the said couple had no issues the said Nagamma executed a registered Will on 18.11.1985 bequeathing Sy.No.96/3 measuring 37 guntas and other properties in favour of A. Raghunandana Reddy s/o.Abbaiah Reddy. Thus on the death of said Nagamma, the said Raghunandana Reddy became the absolute owner of that land and he formed a revenue layout there. Amongst the sites he laid there, he sold site No.3 to Reddappa s/o.Mallaiah on 20.08.2003 through a registered sale deed and put him in possession. As there was some mistake in the said sale deed a registered rectification deed was executed by him on 14.09.2011. Thus the said Reddappa s/o.Mallaiah became the absolute owner of site No.3 formed 6 O.S.2203/2012 in that Sy.No.96/3 of Arakere. Subsequently the said Reddappa sold the said site in two pieces to these defendants- 1 and 2. He sold East-West: 30 feet and North-South: 38 feet in favour of defendant No.1 on 15.07.2011 and on the same day he sold similar extent to the defendant No.2 and put them in possession. As there were some discrepancies in the said sale deeds also rectification deeds were executed by said Reddappa on 14.09.2011. Thus the defendant No.1 and 2 became the absolute owners of their respective portions of site No.3. That schedule-A property as claimed by the plaintiff is infact formed in Sy.No.96/3 and not in Sy.No.95. However in order to knock away the properties of these defendants the plaintiff has come up with a false and frivolous suit. The alleged vendor of the plaintiff had no manner of right, title or interest in Sy.No.96/3 of Arakere village so as to alienate the schedule-A property to her. Wherefore there is no question of plaintiff deriving any valid title to the said property nor she came in possession of it. Thus on these grounds and other grounds defendants prayed to dismiss the suit with cost.
5. At the fag end of the trial, the plaintiff filed I.A No.9 under Order VI Rule 17 read with Section 151 of CPC to amend para-4 of her plaint and also seeking permission to add the relief of declaration. The said I.A was contested on its merits and it was allowed vide order dated 02.11.2017. Pursuant to it by getting deleted her contention that the said Y.Venugopala Reddy was the original owner and was in possession of the entire property bearing Sy.No.95 of Arakere, Hulimavu Group Panchayat, Bengaluru South Taluk, in its 7 O.S.2203/2012 place the plaintiff pleaded that the said Venugopala Reddy, Raghunandan Reddy, Rama Reddy and Kodandarama Reddy were the joint owners of lands bearing Sy.No.95, 96/3 and 1/2 of Arakere village, Hulimavu Group Panchayat, Bengaluru South Taluk and on behalf of that joint family the said Venugopala Reddy formed revenue layout in the said survey numbers, as such the said layout was called as Venugopala Reddy Layout and road formed there was called as Gurappa Reddy Road. That the said Venugopala Reddy sold sites to different persons on behalf of the joint family. With this additional pleading the plaintiff prayed to declare that she is the absolute owner of the schedule property by virtue of sale deed dated 17.02.1992 executed in her favour.
6. In view of the said amendment the defendants filed their additional written statement again reiterating that suit is not maintainable either in law or on facts and it is liable to be dismissed in limine. They further submitted that suit is also barred by time. They also contended that court fee paid on the plaint is insufficient and the claim of plaintiff that the said Venugopala Reddy formed layout on behalf of joint family in Sy.No.95, 96/3, 1/2 of Arakere village is a total falsehood. Instead they again contended that it is the Raghunandan Reddy, who acquired the land in Sy.No.96/3 and he formed the layout there. It is also denied that Venugopala Reddy sold the sites allegedly formed by him on behalf of joint family and the said layout is known as Venugopala Reddy Layout. They further contended that all the additional pleadings are false, frivolous and vexatious to 8 O.S.2203/2012 the knowledge of the plaintiff, wherefore they prayed to dismiss the suit once again.
7. Based on the said pleadings following issues and additional issues have been framed.
ISSUES
1) Whether the plaintiff proves that he is the absolute owner of the suit site and house property as claimed?
2) Whether the plaintiff further proves that he has been in lawful possession and enjoyment of the schedule property?
3) Whether the plaintiff further proves that the defendants put up illegal construction over B-
schedule property?
4) Whether the plaintiff is entitled for permanent injunction as prayed for?
5) Whether the plaintiff further proves that he is entitled for mandatory/prohibitory injunction against the defendants over both 'A' and 'B' schedule property?
9 O.S.2203/20126) To what order or decree?
Addl.Issues framed on 03.01.2018
1) Whether the defendants prove that suit is barred by limitation?
2) Whether the defendants further prove that court fee paid on the plaint is insufficient?
8. In support of her case plaintiff examined her son- Harsh Prakash as PW.1 by authorizing him through GPA and she got marked 29 documents. On the other hand, defendant No.1 examined himself as DW.1 and defendant No.2 examined himself as DW.2 and they examined their predecessor in title viz Raghunandan Reddy as DW.3. In all 35 documents are marked on their behalf. I have heard the arguments of Sri RP advocate for plaintiff and Sri KVSP Advocate for defendants. Perused the pleadings, evidence and the decisions made available by them.
9. My findings on the above issues are as under:
Issue No.1: In the affirmative
Issue No.2: In the affirmative
Issue No.3: In the affirmative
Issue No.4: Partly in the affirmative
10 O.S.2203/2012
Issue No.5: Partly in the affirmative
Addl.Issue No.1: In the negative
Addl.Issue No.2: In the negative
Issue No.6: As per final order below,
for the following:
REASONS
10. ISSUE No.1 TO 3: On going through these issues and also the nature of the dispute between the parties I am of the firm opinion that they cannot be discussed in discrete. While arriving at the title of the property court has to look into the previous possession and alleged subsequent dispossession, so in order to maintain brevity I have taken these issues simultaneously.
11. On reading the plaint, written statement and evidence adduced by the parties without any pinch of hesitation I say that it is one more example of mal-adminis- tration by the concerned authorities, who are responsible for healthy growth of a city. From the year 1990 onwards this Bengaluru City started developing throughout its length and breadth without there being any planned development, may be because of the rampant corruption in the concerned departments and also contribution to some extent by the State in controlling the said departments. Added that in order to hoodwink the laws, which banned the sale of agricultural lands in the form of sites in order to save the agrarian lands and also indiscriminate conversion of such agricultural lands 11 O.S.2203/2012 for non-agricultural purposes, the shortest way the land sharks found out was the alienation of agricultural lands by way of General Power of Attorney, whether it is a registered or unregistered one, executing of agreement of sale and affidavit by forming illegal layouts. Mushrooming of such layouts was not taken care by the authorities, who were expected to take care, and that has led to the flooding of cases to the courts in Bengaluru. This dispute is one such instance. It is neither the case of plaintiff nor the defence of the defendants that they have purchased the site which has been carved out in the manner known to law, however that will not deter the court in unraveling the real truth and to find out who is more nearer to the truth. Initially it was the precise case of plaintiff that she purchased the schedule property bearing site No.3, carved in Sy.No.95 of Arakere village by Y.Venugopala Reddy. When trial was about to conclude she modified her version and came with an explanation that the said Y.Venugopala Reddy, Raghunandana Reddy, Rama Reddy and Kodanda- rama Reddy were the original joint owners of lands bearing Sy.No.95, 96/3 and 1/2 of Arakere village, Hulimavu Group Panchayat, Bengaluru and in the said lands a revenue layout was formed by the said Y.Venugopala Reddy, which was named after him and from that layout she purchased site No.3 through the P.A.Holder of the said Y.Venugopala Reddy.
12. Per contra, from the beginning the defendants contended that they purchased two bits of lands from Sy.No.96/3, which belonged to Raghunandana Reddy by way of registered sale deeds and the alleged site referred to by the 12 O.S.2203/2012 plaintiff is not part of Sy.No.95, therefore once the plaintiff modified her version they pounced on her and tried to make mountain out of mole by saying that plaintiff has no case as she has retracted from her previous version and she having filed a suit with bare injunction and for mandatory injunction, her prayer for declaration of title through an amendment after more than five years of filing of the suit up- roots her case altogether. In tune with that contention lot of arguments were canvassed by Sri KVSP Advocate for defendants and he argued that with the changed version of plaintiff she has conceded that she has no case. Thus he prayed to dismiss the suit on that count alone. According to me if such an analogy is accepted and adopted it is nothing but travesty of justice. While deciding a civil dispute it is not the eyes that alone have to be believed, it is the internal eyes that have to be opened and every allegation and document of the parties have to be microscopically examined to know who has real case and cause in the dispute.
13. In this background let me go to the pleadings, evidence and documents of plaintiff as admittedly the issues in hand throw burden on her to prove her versions and to some extent the evidence of defendants also. At the same time I would also remind that in a civil dispute it is the preponderance of probability that clinches a case unlike in a criminal trial, where law presumes that accused is innocent till his guilt is proved beyond all reasonable doubt.
13 O.S.2203/201214. In accordance with her contention that she purchased site No.3 from the P.A.Holder of Y.Venugopala Reddy the plaintiff produced the certified copy of the GPA executed by said Venugopala Reddy, his wife- Lakshmamma and their son-V.Mahendra on 03.02.1992, which was came to be registered on 12.02.1992, at Ex.P.16. It is true that as canvassed by Sri KVSP Advocate there is no recital that the said GPA was executed by the said Venugopala Reddy as a kartha of the joint family consisting of himself and his other brothers and cousins and there existed a joint family, however one has to see that by executing that registered GPA he authorized S.Vishwanath s/o.Shankarappa to develop the lands, construct dwelling houses and alienate them to the prospective powers, to execute a registered sale deed and to receive consideration on their behalf. The schedule to the said GPA shows that it was executed in respect of property bearing No.1, 2 and 3 in khata No.116/1, house list No.106/1 to 3, property No.14 and 15, in khata No.233/8, house list No.230/13-14 etc. It was also stated that all the said properties are situating at Arakere village and they are formed in Sy.No.95 and 96/3 of Arakere, Begur Hobli, Hulimavu Group Panchayat. So from that Ex.P.16 it is evident that the said sites or revenue bits were part of Sy.No.95 and 96/3 of Arakere village. Then pursuant to that GPA the said S.Vishwanath sold the plaint schedule property to the plaintiff under registered sale deed dated 17.02.1992 for Rs.48,000/- as per Ex.P.2 and put her in possession. In the said registered sale deed on page No.2 there is a reference to the registered GPA dated 03.02.1992, but its date is wrongly 14 O.S.2203/2012 mentioned as 12.02.1992 for the reason that it was registered on the latter date. It is significant to note that in the schedule to the said sale deed property has been described with its site number, house list number and khata number, its measurement and the boundaries. As can be seen from the said schedule the said property is measuring East-West:60 feet, North-South: 33 feet and it is bounded by East-property No.2, West-property No.4, North-private property and South- road and it also consisted of one square ACC Sheet building with mud walls, doors and windows. In the cross examination of PW.1 citing the apathy which I explained in the foregoing paragraphs and also the shrewd minds which wanted to sneak under the law and how such sale deeds were got registered was suggested and elicited by the very KVSP Advocate. That can be seen at about 11th line from below on page No.12 of the cross examination of the said witness. There PW.1 admitted that site No.3 was revenue site and in the year 1992 there was no provision to register sale transactions of the said revenue sites so for that reason stating that there is a shed, the sale deed used to be registered and it was also suggested and elicited that in their case also sale deed was got registered in the aforesaid manner. With the said series of suggestions the learned Advocate for defendants conceded the genuinety of the Ex.P.2. Nevertheless it was so done in order to overcome the legal shackles then prevailing, but it cannot be said that said sale deed has no legal relevance. The boundaries shown in Ex.P.2 completely correspond with schedule-A to the plaint.
15 O.S.2203/201215. It is trite of civil dispute that an immovable property would be identified by its boundaries rather than its khata, survey number or house list number, therefore I am not giving prominence whether the said site is part of Sy.No.95 or Sy.No.96/3 of Arakere. There is one more strong reason to make that observation. For that I may suddenly go to the cross examination of DW.3, which is a crucial piece of evidence to decide this whole dispute. There on page no.4 it was elicited that Sy.No.96/3, Sy.No.95, Sy.No.1/2 of Arakere were the ancestral properties of Gurappa Reddy, Yellappa Reddy, Abbaiah Reddy and Venkatappa. It was also elicited that Venugopala Reddy is the son of said Yellappa Reddy and the said DW.3 is the son of Abbaiah Reddy ie, vendor of the plaintiff and alleged predecessor in title of defendants' property are cousins. The DW.3 sources his title to Sy.No.96/3 by way of registered Will executed in his favour by Smt.Nagamma w/o.Gurappa Reddy and he claimed that on the death of said Nagamma he having acquired title to Sy.No.96/3 he formed revenue layout in that land and sold the very plaint schedule property to one Reddappa s/o.Mallaiah and the said Reddappa sold that site in two bits of 30x38 feet to defendant No.1 and 2 under two registered sale deeds dated 15.07.2011, which are marked as Ex.D.4 and D.32. It is also important to note that on page-5 of his cross-examination the said DW.3 squarely admitted that his cousin/Venugopala Reddy formed layout in their ancestral properties for and on behalf of joint family and as it is the revenue layout there is no layout plan for it. However he 16 O.S.2203/2012 denied the further suggestion that his said cousin sold many such revenue sites on behalf of joint family.
16. Be that as it may through the said admissions of DW.3 what emerges is that it is not the Sy.No.95 alone, even Sy.No.96/3 and 1/2 of Arakere village belonged to the ancestors of DW.3 and layout was formed by Venugopala Reddy. The very naming of the layout in the name of that person corroborates the same. Plaintiff has produced the photograph of the said layout and got it exhibited through DW.1 at Ex.P.26. May be because of the clout of that family over that entire area and layout was formed by the Reddy family not only it was named after the Venugopala Reddy, even road leading to that layout was named as Gurappa Reddy Road and that can also be seen in Ex.P.26, the sign board fixed by BBMP in Ward No.144. Therefore if the defendants assert that they derived valid title through that DW.3, they cannot stop by producing their sale deeds of 2011, when the sale deed of plaintiff itself dates back to 1992. If the alleged Will of Smt.Nagamma recites that there was a partition in their family on 02.04.1972 and in that partition Sy.No.96/3 measuring 37 guntas fell to the share of her husband-Gurappa and on the death of her said husband she succeeded to the said land and because she has no issues she is bequeathing the said land and other lands to DW.3, lot of responsibility lies on the shoulders of said DW.3 to prove the partition of 1972. But strangely in their written statement at para-7 and also in their examination-in-chief, which is replica of their written statement, defendants went on alleging 17 O.S.2203/2012 that the said partition took place on 02.04.2007. Having wrongly pleaded about the "year" of partition and producing the certified copy of that Will of Smt.Nagamma at Ex.D.29 and also the effecting of mutation in the name of DW.3 in respect of Sy.No.96/3 and other land at Ex.D.30, they did not take care to produce the said partition deed dated 02.04.1972. Even DW.3 also did not make attempt to produce it. Therefore the story that Sy.No.96/3 fell to the share of Gurappa Reddy and it was succeeded by his wife- Smt.Nagamma, so she bequeathed that land and other properties that had fallen to her husband's share to this DW.3 etc has to be negated. This finding is not an isolated one, rather it is supported by the dominating documentary evidence.
17. It may be noted that based on the sale deed at Ex.P.2 Bommanahalli CMC issued Form No.III and received taxes from her for the year 2005-06 as evidenced by Ex.P.15. It is pertinent to note that the said document is dated 13.09.2005 and it was issued based on the application of plaintiff of even-dated. The said form, which speaks regarding the payment of taxes under self-assessment scheme and the particulars of the taxes show that schedule property then itself was having site No.3, house list No.106/3 and khata No.116/1 and it measured 60x33 feet. In the cross examination of PW.1 nevertheless an attempt was made by the defendants to attack this document and raise dispute about it, but they could not succeed. They were not able to show why such document was issued by CMC, Bommanahalli 18 O.S.2203/2012 in 2005 itself. Added to that, plaintiff has produced one more important piece of document i.e copy of application filed before the competent authority for regularization of unauthorized constructions in the revenue lands. As per the procedure then prevailing this plaintiff submitted an application as per Ex.P.17 in the prescribed form on 28.07.1994 i.e even before issuing of Ex.P.15 and declared that she has constructed ACC sheet shed in site No.3, house list No.106/3 and khata No.116/1 by giving its extent as 60x33 feet. It is material to note that photograph of the said ACC sheet shed was also pasted to the said application along with the passport size photograph of the plaintiff. There is a seal and initial of the competent authority having received that application on 29.07.1994. What it shows is that long back ie, after purchasing the revenue site under Ex.P.2 in order to get it regularized plaintiff approached the competent authority through Ex.P.17. I would come to this Ex.P.17 a bit later when I take up the cross examination of DW.1 and 2 and DW.3 further. At this juncture it is suffice to show that Ex.P.2 is corroborated by Ex.P.17 and P.15.
18. The possession of the plaintiff over schedule property is further established by the BBMP khata extract produced at Ex.P.3 and also tax paid challans and forms filed by this plaintiff under self-assessment scheme to Bommana- halli CMC at Ex.P.4 to P.7. They show that she was continuously paying property taxes to the CMC, Bommana- halli. The Ex.P.8 is another property tax receipt dated 29.03.2009 issued by BBMP and Ex.P.9 and P.10 are the 19 O.S.2203/2012 acknowledgements for having paid the property taxes. There are few more BBMP tax paid receipts at Ex.P.12 to P.14 and they show that plaintiff paid taxes for the years 2009-10 to 2011-12. Intentionally I have referred to all these documents as they are earlier in point of time as compared to Ex.D.4 and D.32, produced and relied by the defendant No.1 and 2. These documents coupled with the admission of DW.3 regarding formation of layout by Y.Venugopala Reddy sufficiently demonstrate that there was an actual flow of title of plaint schedule property from Y.Venugopala Reddy to this plaintiff. I would corroborate this finding by referring to one more important document viz the rough hand sketch produced by the plaintiff at Ex.P.27.
19. It may be noted that during the cross examination of DW.1 by producing the rough hand sketch of the said revenue layout plaintiff confronted that the suit property is situating in the said layout as shown in the sketch. Admitting the location of the site, existence of the East-West road DW.1 conceded that the said rough hand sketch depicts the existing state of affairs there. Likewise in the cross examination of DW.2 also plaintiff elicited that schedule property is situating towards North of the East-West road and towards South of the said road Reddy brothers are possessing their house and other properties. Most crucially the said Ex.P.27 was also admitted by DW.3 in his cross examination and he too agreed that the said rough sketch shows the location of the schedule property. Intentionally I am giving importance to the said document. Nevertheless it is not in 20 O.S.2203/2012 terms of scale and it is not prepared by a competent authority, the reason for of giving emphasis to the said document is that it shows not only the existence of suit site No.3, which is bearing house list No.106/3, it also shows the existence of other two sites viz site No.1 bearing house list No.106/1 and site No.2 bearing house list No.106/2. Both said sites are situating towards eastern side of the schedule property. Apart from that said sketch proves the boundaries of her plaint schedule property and also the person who sold the said site No.1 and 2, to whom and who is in possession of said sites. The plaintiff has produced certified copies of the said sale deeds. I would refer to them one after the other.
20. Ex.P.22 is the certified copy of the sale deed executed by the said Y.Venugopala Reddy through his registered GPA Holder-S.Viswanath in favour of Smt.Savitha @ Chandramma d/o.Chikkamaddaiah on 17.02.1992, the day on which the plaintiff purchased the suit property and it is in respect of site no.1. In the said sale deed towards western side existence of site No.2 and towards southern side existence of East-West road are described. Later the said Savitha @ Chandramma sold that property to Nanjaiah on 10.05.1999 as evidenced by Ex.P.21 through a registered sale deed and in that sale deed also the western boundary is shown as site No.2 and southern boundary as road. So far as site No.2 house list No.106/2 is concerned plaintiff produced certified copy of the sale deed executed by the said Y.Venugopala Reddy through his SPA Holder in favour of D.L.Krishnaveni w/o. K.Hanuman, again on 17.02.1992 for 21 O.S.2203/2012 consideration of Rs.32,000/-, at Ex.P.20, wherein towards west of that property site No.3 is shown i.e the plaint schedule property and towards southern side existence of road is described. Subsequently the said D.L.Krishnaveni executed registered GPA in favour of K.N.Shashishekar on 07.09.1995 as per Ex.P.23 and pursuant to that GPA the said K.N.Shashishekar executed the sale deed in favour of his wife-Smt.Mangala on 02.07.2001 as per Ex.P.24.
21. During his argument referring to the northern boundary shown in that sale deed at Ex.P.24 Sri KVSP Advocate submitted that the said document cannot be relied as it shows existence of road towards northern side of property bearing house list No.106/2. No doubt such an error has occurred in the said document, but the fact remains that in the building plan obtained by her from Hulimavu Group Panchayat, produced at Ex.P.25, one can see the existence of road towards southern side of that site and existence of this schedule property towards western side like in Ex.P.20. Therefore even if some error has crept in the execution of sale deed in favour of Smt.Mangala (Ex.P.24) that will not weaken the plaintiff's case in any manner. Producing of Ex.P.22, P.21, P.20, P.24 and P.25 was inevitable for the plaintiff to prove the boundaries of his plaint schedule property and futher that along with her two more persons purchased site No.1 and 2 on the same day through the P.A.Holder of Y.Venugopala Reddy. Had the suit property was part of an approved layout I do not think that so much pain was required to be taken by the plaintiff. When the 22 O.S.2203/2012 defendants claim that their sites are none other than the plaint schedule property, atleast they should have come up with an approved layout plan, issued by a competent authority, in that event things could have been more easier. Since that is not the case here, even to prove the slightest element, more particularly to prove her title plaintiff has to toil hard and she has did it. Unlike the plaintiff the defendants have not taken pain to produce the rough hand sketch of their alleged property, no matter they may not be having a layout plan like the plaintiff.
22. Having referred to the documents produced by the plaintiff now I turn to the cross examination of PW.1 to find out whether the defendants are able to make any dent so as to reject his evidence altogether. Before that I would also caution that in a suit for declaration of title based on the sale deed oral evidence may not attain lot of importance, like the documents. It is often said that men may lie but not the documents. The bunch of documents produced by the plaintiff and discussion made by me on them would sufficiently show that she has not only proved the right and authority of her vendor to alienate the plaint schedule property, even she proved its boundaries.
23. In his cross exam PW.1 conceded that Sy.No.95 has not been converted into non-agriculture and no layout was formed with approval of the competent authority. However he denied that schedule property is a part of Sy.No.96/3, however in order to prove their suggestion 23 O.S.2203/2012 defendants did not come up with any sketch or survey map. Without producing the copy of the partition deed dated 02.04.1972 a suggestion was made that through that deed the 37 guntas in Sy.No.96/3 fell to the share of Gurappa Reddy and from him his wife-Nagamma inherited and she executed the Will in favour of Raghunandana Reddy. An attempt was also made to attack his evidence by saying that as he was 11 year old boy in 1992 he is not competent to depose as to what transpired then. Regarding which Sri KVSP Advocate also relied upon a decision reported at (2005) 2 SCC 217 in the case of Janki Vashdeo Bhojwani and another /vs/ Indusind Bank Ltd., and others. It is true that in that case Hon'ble Supreme Court held that a P.A Holder cannot depose on behalf of the principal considering the facts and circumstances of that case, but in the case in hand as plaintiff has approached the court for declaration of title and the said declaration being based on title deeds, as observed by me earlier role of oral evidence will be very limited or formal. Therefore the ratio laid down in that case is not applicable to the facts of this case.
24. On the contrary, as submitted by Sri RP Advocate in the decision reported at ILR 2015 KAR 635 in the case of Sajida Banu /vs/ Halema Banu and others referring to very Order III Rule 2 of CPC it is held by our Hon'ble High Court that a plaintiff can be represented by his P.A.Holder. What I mean to say is that every case has to be weighed based on the facts and circumstances it presents. The ratio laid down in a different context cannot be made squarely applicable without 24 O.S.2203/2012 taking note of the distinctive features of another case. Therefore I hold that evidence of PW.1 cannot be brushed aside altogether. As suggested in the cross examination of PW.1 on page No.12, till 2004 Bommanahalli CMC was collecting the development charges and taxes of the revenue sites. In accordance with the said suggestion of the defendants the plaintiff has produced her property tax records at Ex.P.4 to P.7, to which I have already made reference in my earlier discussion. Whereas no such corresponding documents have been produced by the defendants in order to show that their vendor-Reddappa paid taxes to the CMC-Bommanahalli. All along in his cross examination PW.1 replied that these defendants interfered in their property in the year 2011, like pleaded in para-10 of plaint. I would come to this aspect when I take up the rectification deeds executed in favour of said Reddappa and these defendants. At this juncture it is sufficient to hold that cause of action for the plaintiff arose in the month of August- 2011 and thereafter and it prompted her to approach this court through the suit in hand. With this discussion on the oral evidence of PW.1 let me turn to the evidence of the defendants still more deeply.
25. As I said earlier both defendants entered the witness box and in addition to that they also brought their predecessor in title viz Raghunandana Reddy and examined him on their behalf. However upon going through the evidence of the said DW.3/Raghunandana Reddy, to which I have already made reference to some extent, I can straight 25 O.S.2203/2012 away say that DW.3 has totally spoiled the defence and has exposed its hollowness, therefore in my opinion before one looks at the evidence of DW.1 and 2 i.e defendant No.1 and 2 it is necessary to have a glimpse of the evidence of the DW.3, through whom the defendants find their source of title.
26. The gist of evidence of DW.3 is that in their family there was a partition on 02.04.2007 and in that partition Sy.No.96/3 measuring 37 guntas fell to the share of his uncle-V.Gurappa Reddy. With regard to the said partition and the wrong year I have already discussed in the earlier paragraph. It is not the partition of 02.04.2007 but of 02.04.1972. It is interesting that without producing copy of that deed and without stating whether it was a registered one or unregistered, DW.3 went on claiming that on the death of his said uncle-V.Gurappa Reddy his aunt-Smt.Nagamma succeeded to Sy.No.96/3 and through her he got that property under registered Will dated 18.11.1985 by producing the same at Ex.D.29 with its mutation register extract at Ex.D.30 as discussed earlier. At the cost of repetition I would say that when there is no material to show that there was a partition in the family of Y.Venugopala Reddy, V.Gurappa Reddy, Yellappa Reddy and Abbaiah Reddy with a stray document like Ex.D.29, pursuant to it Ex.D.30 was came into existence, one cannot imagine the partition in the family of said Reddys. This has been proved by the very DW.3 by replying that he does not remember when that partition took place and it is not possible for him to say which property has gone to whose share, even after stating that he has the said 26 O.S.2203/2012 partition deed with him. He did not give the copy of the same to the defendants to produce it. Therefore court has no other option except to draw an adverse inference against the defendants in withholding the said crucial document. In the absence of the said partition deed, the Ex.D.29 will have no value, consequently the Ex.D.30.
27. The admission of DW.3 at page No.5 of his cross examination in the unnumbered 2nd paragraph would sufficiently show that it is the Venugopala Reddy who formed layout in all their ancestral properties for and on behalf of the joint family and as it was a revenue layout no layout plan is available with them. When such being the case if at all anything contrary is asserted by the defendants and the DW.3, it was for them to show that how many sites he formed in 37 guntas of Sy.No.96/3 and to whom all he sold those sites. It is material to note that except a lonly sale deed executed in favour of Reddappa s/o.Mallaiah on 20.08.2003 as per Ex.D.2, that too in respect of site No.106/1, new site No.554, khata No.116/1 of property No.96/3 of Bommana- halli CMC bearing No.554/96/3 of Arakere. It is significant to note that the extent of the said site is East-West: 60 feet, North-South: 38 feet and it is bounded by East-site No.116/1 and 106/1, West-Raghu's property No.116/1 and 106/3, North-Srinivas' property, South-road.
28. Intentionally I have given the measurement as well as the boundaries of the alleged property sold by DW.3 in favour of the said Reddappa s/o.Mallaiah. Curiously when 27 O.S.2203/2012 this plaintiff alleges that cause of action arose to her in the month of August-2011 and on 03.09.2011 by setting out the reasons for the same in para-7 of her plaint, having kept quite from 20/08/2003 i.e from the date of execution of Ex.D.2, all of a sudden DW.3 executes registered rectification deed in favour of the said Reddappa on 14.09.2011 as per Ex.D.3 i.e almost 7 years after Ex.D.2 and in that rectification deed he states that due to oversight and typographical error the site number has been mentioned as 106/1 instead of site No.106/3 and in the boundaries towards eastern side site numbers have been mentioned as 116/1 and 106/1 instead of site No.106/2 and 106/1 and on the western side again site numbers have been wrongly mentioned as property No. 116/1 and 106/3 instead of site No.106/4. Therefore rectifying the said boundaries he executed the Ex.D.3. If there was a mistake in the description of the property number sold to Reddappa or there was a mistake in the description one side boundary one could have given over emphasis to such mistakes, but in the case in hand the said mistake was crept not only in mentioning the property number, even in respect of eastern and western boundaries, that too it was noticed by the defendants and DW.3 when the plaintiff protested for construction activities of defendant No.1, who had rushed there on the strength of Ex.D.3 for laying foundation and for erecting of pillers. One cannot lose sight that as on the date of execution of Ex.D.3 already Reddappa had also parted with the said site in two pieces to defendant No.1 and 2 on 15.07.2011 itself as per Ex.D.4 and Ex.D.32. Even these defendants who claim that they purchased the 28 O.S.2203/2012 property from Reddappa did not bother to verify the boundaries and property number. It is not the claim of DW.3 that besides executing Ex.D.3 he also sold other sites formed by him in that Sy.No.96/3, measuring 37 guntas to several other purchasers. So except Ex.D.3 no other copy of sale deed said to have been executed by DW.3 in respect of 37 guntas is made available by the defendants.
29. The only trick that was followed by DW.3 to screen Ex.P.2, Ex.P.22 and Ex.P.20 to vary the extent of site as East- West: 60 feet, North-South:38 feet. It is needless to say that even if one side site extent is changed it may not be possible for the registering authority to locate the transaction of a property. Taking advantage of the same not only by changing the North-South measurement from 33 feet to 38 feet the DW.3 gave some hypothetical property and khata numbers and executed Ex.D.2 and it is still more interesting that the said Reddappa paid the entire consideration of Rs.3,10,000/- to DW.3 in cash so that they can avoid any sign of transaction except the sale deed. These defendants did not examine the said Reddappa to prove the genuinity of sale transaction between him and DW.3.
30. Deliberately I am highlighting and emphasizing on Ex.D.2, because these defendants find their source of title through that document. Except Ex.D.2 there is no other document to show that this Raghunandana Reddy formed layout and sold sites in that 37 guntas of land. I really fail to understand the failure of the defendants even to produce the 29 O.S.2203/2012 rough hand sketch of their so called sites and their layout. So it raises strong doubt in their claim that there was valid transaction between Raghunandana Reddy and Reddappa. In the cross exam of DW.3 plaintiff elicited that except a pahani in respect of Sy.No.96/3 pursuant to Ex.D.30, there is no khata in his name in respect of the sites formed by him. When a precise question was put to him (DW.3) on page No.6 of his cross exam, whether does he know to whom site No.1 and 2 were sold, he expressed his ignorance. Nevertheless he admitted that some persons have occupied them and he do not know their names. He did not deny that Venugopala Reddy sold site No.1 to 3 to Vishwanath through GPA. However by adding that as said sites were belonging to him and when he came to know occupation of the same by some person, he enquired that person and came to know that the said person has purchased from his brother, but he did not enquire who is that brother, who sold those sites to the said person. He further disclosed that till the date of his cross exam he has not filed any suit against the occupants of site No.1 and 2 and he has not questioned the alienations made in their favour. He made a startling revelation on page No.6 itself when he replied that he came to know about the said transaction when he sold the said site under registered sale deed. What it shows is that despite knowing the execution of sale deed in favour of plaintiff he sold that property to Reddeppa. He further replied that he has not filed any suit questioning the alienations made by his brother. He further conceded that he has not produced document to show that site No.1 to 3 are carved in Sy.No.96/3. I think this much of 30 O.S.2203/2012 admissions are more than enough to tear away the weak defence of the defendant No.1 and 2, who too took the rectification deed from their vendor-Reddappa on 14.09.2011 as per Ex.D.5 and D.33 i.e the date on which the Ex.D.3 was executed by DW.3 in favour of Reddappa.
31. That again on page No.7 of cross examination of DW.3 a specific question was put to him that site No.3, house list No.106/3 and khata No.116/1 belongs to the plaintiff. But it was not denied by him. He claimed that Ex.P.17 shows the building constructed by him, but when it was questioned whether does he have any document to prove the said construction, he replied it in the negative. He further replied that he did not submit any application to the Deputy Commissioner to regularize the unauthorized construction made by him in the revenue site, however he admitted that the photographs shown in the Ex.P.17 is in respect of site No.3 and construction made in it. If one compares Ex.D.1 and Ex.P.17 they show that both are in respect of the eastern portion of schedule property for regularization of which the plaintiff filed application to the competent authority as per Ex.P.17. The purpose of referring to the said two documents and making this observation is that absolutely there is no dispute between the parties with regard to the identification of property, therefore in which survey number the said layout is formed makes no much significance, that too when DW.3 himself conceded that as Venugopala Reddy formed layout in their ancestral properties on behalf of joint family.
31 O.S.2203/201232. On page No.8 of his cross exam DW.3 disclosed that partition deed that was entered by their ancestors is a unregistered one, but even during his further cross examination dated 12.04.2017 he did not make an attempt to produce copy of it having faced initial cross examination on that document on16.02.2017. Therefore I seriously doubt the existence of that document again and again. As I said earlier including this DW.3 both the defendants admitted the correctness of Ex.P.27 and it shows the existing state of affairs at the location. The admission of DW.3 to this effect can be seen on page No.9 of his cross examination. So on deep analysis of the evidence of DW.3, which completely corroborates the plaintiff's version and negates the version of defendants there can be no other conclusion except that plaintiff is the absolute owner of plaint-A schedule property and these defendants did not know where their alleged property is situating.
33. I would corroborate this observation by referring to the evidence of DW.1 and 2. As I have already made extensive reference to the evidence of DW.3 I would straight away go to the cross examination of DW.1 and 2, more particularly the cross examination of DW.1 as DW.2 completely shifted his burden of examining the documents of the property to be purchased by him on his brother viz DW.1. Repeatedly DW.2 stated that he is working as mason under defendant No.1 and he did not personally verify any document before he purchased that property and he proceeded to purchase it at the advice of DW.1. For that he 32 O.S.2203/2012 also gave a reason that he is an illiterate and consequently he has no personal knowledge of the antecedents of the alleged property purchased by him. His said admission can be seen at the end of unnumbered 2nd paragraph on page No.9. This takes away the evidence of DW.2 to a large extent. In this background if I focus on the evidence of DW.1, this witness is also no better than DW.2. He was not able to say the boundaries of the property purchased by his vendor nor the boundaries of the bit he purchased from his said vendor. He could not say how many sites were formed in Sy.No.96/3, 95 and Sy.No.1 and he flatly answered that he did not enquire the developer to furnish the sketch of that lay out. When he was confronted whether did he enquire his vendor and predecessor in title (DW.3) who resides just opposite to the schedule property, he flatly answered that as he felt that there is no necessity to make such enquiry he did not do it. According to me it is hight of negligence of a person who claims that he purchased an immovable property for consideration. He gone to the extent of stating that if it is possible for him to produce the documents he would produce them to show to whom all the other sites were sold, but he did not make any attempt to prove the said alienations. He did not deny that the foundation has been laid in site No.3, H.L No.106/3 and khata No.116/1. When eastern and western boundaries of schedule property were suggested, he expressed his total ignorance even after claiming the western portion of the schedule property belonging to this plaintiff.
33 O.S.2203/201234. At this juncture itself I may also point out that in the cross examination of PW.1 in contrast to their case, on page No.10 the defendants suggested that they purchased 30x30 feet from Reddappa and against the contents of their sale deeds that they allegedly purchased 30x38 feet. This shows that they do not know the extent of the property they have purchased and their boundaries. When his own document viz the village map of Arakere shows that Sy.No.96, 95 and Sy.No.1 are adjoining lands and particularly land bearing Sy.No.96 and 95 were marked as Ex.D.31(a), DW.3 expressed his ignorance that the said lands are lying adjoining to each other. Apart from these blatant errors and shortcomings DW.1 admitted that he has not produced any document to show that Sy.No.96/3 belongs to DW.3 nor he has produced any document to show that Nagamma w/o. V.Gurappa Reddy inherited the properties shown in Ex.D.29 so as to execute the Will in favour of DW.3. Therefore the whole defence set up by both defendants crumbles down.
35. Nevertheless DW.1 expressed his ignorance regarding situation of houses of Reddy family members towards South of the East-West road, it was admitted by DW.2 and that proves the Ex.P.27 and its genuinety. On page No.10 of the cross examination of DW.2 when it was suggested that plaintiff's site is different and sites claimed by them are different, even he did not deny that suggestion. On the very same page conceding that Ex.D.1 shows the disputed construction made in the schedule-A property and the Ex.P.17 also shows the same, in order to improvise his case 34 O.S.2203/2012 he stated that shed shown in Ex.D.1 is constructed by him, which is quite contrary to the claim of DW.3 that he built it. If the version of DW.3 is accepted, it ought to have been reflected in Ex.D.32. But in the schedule to Ex.D.32 there is no reference to the existence of shed. This is another remarkable departure to show that documents produced by the defendants have no bearing and have no impact on the defence they have adopted. Therefore I am fully convinced that plaintiff has proved her title to the schedule-A property and also that she was in lawful possession and enjoyment of the said property till the defendant No.1 dispossessed her from the B-schedule property by laying foundation and erecting pillers. Once it is held that she is the absolute owner of schedule-A property certainly the possession of defendant No.1 over B-schedule property, which is the western portion of the A-schedule property is illegal and unauthorized one. Hence for the aforesaid discussion ignoring the gender grammatical error in framing of issues No.1 and 2, I answer all these three issues in the affirmative.
36. ADDL.ISSUE No.1: Once the plaintiff amended her plaint by inserting two more survey numbers and set up the joint family amongst Venugopala Reddy and others and sought additional relief of declaration to declare that she is the absolute owner of the schedule-A property, taking the said opportunity the defendants filed their additional written statement by alleging that the said relief is barred by time. In the light of that pleading this additional issue was framed.
35 O.S.2203/201237. In order to substantiate their contention Sri KVSP Advocate drew my attention to the order passed by this court on I.A No.9 filed under Order VI Rule 17 of CPC for amendment and observation made in it. It is true that while disposing off the said application on 02.11.2017 this court clarified that, in so far as the additional relief of declaration is concerned it shall be deemed that, it was made as on the date of presentation of the said I.A with obvious intention that one should not apply the doctrine of relation back in so far as the relief of declaration is concerned. It is not in dispute that the said I.A No.9 was filed on 14.07.2017. Now the question is, whether on the reason that the relief of declaration of title was made long after filing of this suit can it be said that the said relief is barred by limitation?
38. During his argument referring to the decisions reported at (2016)1 SCC 332 in the case of L.C.Hanu- manthappa (since dead) by L.Rs /vs/ H.B.Shivakumar and (2011)9 SCC 126 in the case of Khatri Hotels Pvt.Ltd., and another /vs/ Union of India and another Sri KVSP Advocate contended that since in their written statement filed on 23.05.2012 itself the defendants stoutly denied the title of plaintiff repeatedly, seeking the relief of declaration by her in the year 2017 by way of amendment is hopelessly barred by time. It was his submission that to seek the relief of declaration, as per Article 58 of the Limitation Act the period of limitation is 3 years from the date of arising of cause of action and when these defendants questioned the title of plaintiff in 2012 itself through their written statement, the 36 O.S.2203/2012 cause of action having been arose to her in that year itself, she ought to have prayed for declaration of her title within 3 years from the date of the said written statement. Thus he argued that suit is barred by limitation.
39. On the other hand, Sri RP Advocate canvassed that no doubt such an observation was made by this court while disposing off I.A No.9 with reference to the relief of declaration, since it is the Article 65 of The Limitation Act that is applicable in this case, as plaintiff is also seeking the relief of recovery of possession of B-schedule property, suit is well within the period of limitation. In support of his said submission he referred to the hosts of decisions, reported at AIR 2000 SC 1099 in the case of State of Maharashtra /vs/ Pravin Jethalal Kamdar (dead) by L.Rs, (2011) 12 SCC 220 in the case of Rangammal /vs/ Kuppuswami and another, (2005) 8 SCC 330 in the case of Saroop Singh /vs/ Banto and others, AIR 1991 KAR 273 in the case of Seshumull.M.Shah /vs/ Sayed Abdul Rashid and others and (2007) 14 SCC 183 in the case of C.Natrajan /vs/ Ashim Bai and another. I have gone through the decisions relied by the learned Advocates and also the pleadings meticulously.
40. At the very outset the submission of defendants that suit is barred by limitation by reference to Article 58 of the Limitation Act is concerned, I would say that it is totally a meritless submission and it cannot be accepted for the simple reason that this is not a suit for bare declaration. It is on the 37 O.S.2203/2012 record that in addition to seeking the relief of declaration through amended prayer-(a), plaintiff has also prayed for the relief of recovery of possession of B-schedule property at amended prayer-(e), wherein admittedly defendant No.1 has laid foundation and has erected pillers. When such being the case, it is the Article 65 of the Limitation Act that is applicable and as per the said Article the period of limitation is 12 years and it would commence when the possession of the defendants become adverse to the plaintiff. In the case in hand undisputedly the defendants deny title of the plaintiff and are setting up their own, so there is no question of they setting up their title or interest in the said property by way of adverse possession so as to calculate the period of limitation from such claim. This very ratio was laid down in the decisions relied by Sri RP Advocate. The decisions relied by Sri KVSP Advocate are in respect of suit for declaration involving Article 58 of Limitation Act, therefore they have no bearing in this case. Hence I answer this issue in the negative.
41. ADDL.ISSUE No.2: While filing their additional written statement the defendants also took up a contention that court fee paid on the plaint is insufficient and in view of that defence this additional issue was framed on 03.01.2018.
42. In order to prove this issue while placing his additional evidence on 31.01.2018, DW.1 stated that schedule property was valued at Rs.30,800/- per sq.mtr., and since the sites claimed by them measure 2280 sq.ft. in all, 38 O.S.2203/2012 market value of the property was Rs.68,06,800/- as on the date of filing of amendment application. DW.1 also calculated the court fee on the said market value and deposed that plaintiff has to pay Rs.2,34,227/-, but she has paid only Rs.1,09,725/-, therefore he submitted that plaintiff is liable to pay the additional court fee. On the other hand, Sri RP Advocate canvassed that nevertheless this plaintiff paid the court fee of Rs.33,475/- along with plaint, later additional court fee of Rs.76,250/- was paid on 28.11.2017 and thereafter with one more valuation slip dated 16.08.2018 assessing the market value of the schedule property at Rs.1403/- per sq.ft., based on the sale deeds of defendant No.1 and 2, the plaintiff has arrived market value of the said property at Rs.27,77,940/- and balance court fee of Rs.29,828/- was paid by him. It was his submission that only for the purpose of limitation the benefit of doctrine of relation back can be denied, but not in respect of court fee. It was his submission that since the plaint was already presented long back and substantial court fee was paid, market value has to be determined based on the price prevailing in the year 2011.
43. In this regard after careful examination of rival submission of the parties, I find that there is a lot of force in the submission of the plaintiff. It is true that while disposing off I.A No.9 this court made an observation that the relief of declaration of title shall be deemed to have been made as on the date of filing of the I.A, but the said observation cannot be extended for the purpose of computation of court fee. At the 39 O.S.2203/2012 most that observation applies only with respect of the point of limitation. Therefore once the principle of relation back applies to the amendment of plaint in so far as court fee is concerned, court has to compute the court fee based on the market value prevailing in the year 2011-12 as calculated by the plaintiff.
44. These defendants allegedly purchased two bits of land on 15.07.2011 for Rs.16 lakhs each as evident from Ex.D.4 and D.32. Both the defendants allegedly purchased 1140 sq.ft., at the said price, it means per square feet price was at Rs.1403.50. This suit was filed on 27.03.2012 i.e in a span of 8 to 9 months from the said Ex.D.4 and Ex.D.32. Therefore assessment of market value of the said property, which was already computed by reference to B-schedule property for possession as on the date of presentation of plaint is just and adequate. So I find no substance in the submission of the defendants that court fee paid on the plaint is insufficient. In the fresh valuation slip dated 16.08.2018 plaintiff has arrived the total court fee of Rs.1,39,553/- which constitute Rs.1,39,453/- under Section 24(a) of the KCF and SV Act for the relief of declaration and Rs.100/- for the relief of mandatory and permanent injunctions. Though the defendants filed their objection statement to the said calculation on 13.12.2017 by showing the market value at Rs.56,66,760/-, which contradicts the additional chief of DW.1 where he deposed that it is valued at Rs.68,06,800/-, in the cross examination he was not able to explain how he arrived at the said value nor the defendants produced any 40 O.S.2203/2012 document to show on what basis they claimed that market value of the schedule property was at Rs.30,800/- per sq.mtr as on that day. Therefore I reject the submission of defendants that court fee paid on the plaint is insufficient and answer this issue in the negative.
45. ISSUE No.4 AND 5: These two issues deal with the reliefs to be granted to the plaintiff, therefore I have taken them simultaneously.
46. During his argument Sri KVSP Advocate strongly canvassed that since the plaintiff has approached the court for declaration without seeking the relief of possession, as per the proviso contained in Section 34 of the S.R.Act plaintiff has to be non-suited. In support of his such argument he referred to the Judgment of the Hon'ble Supreme Court in Civil Appeal No.2342 of 2017 in the case of Executive Officer, Arulmigu Koil Trust, Virudhunagar /vs/ Chandran and others. But after going through the plaint and amended prayer-(e) as well as the insertion of the relief of possession in handwriting at the end of said paragraph on the date of filing of suit, what I feel is that the defendants have not taken notice of the said handwritten insertion. It is not the case of defendants that the said relief of possession of B-schedule property, which is added in handwriting in the said amended e-prayer, is a subsequent act without authority. Even I have also gone through the check slip dated 28.03.2012 prepared by the Registrar, City Civil Court, Bengaluru, wherein at serial no.1 while describing the nature of the suit it is written 41 O.S.2203/2012 that it is for injunction and possession. Therefore the contention of the defendants that in view of the proviso to Section 34 of S.R.Act, plaintiff has to be non-suited is wholesomely rejected.
47. Then he canvassed that plaintiff carried out amendment taking advantage of admission of DW.3. Where- fore the plaintiff cannot be permitted to prove her case based on the weakness of the defendants. It is true that subsequent to the cross examination of DW.3 plaintiff made amendment to her plaint averments and prayer, but it cannot be said that the admission of DW.3 cannot be looked into to prove the plaintiff's case. No doubt it is a trite of civil disputes that weaknesses of the defendant is not a trumpcard for the success of a plaintiff. In the instant case, DW.3 being none other than the family member of the vendor of the plaintiff, his evidence has lot of significance in deciding the case. As held in the decision reported at (2011) 12 SCC 220 (Rangammal /vs/ Kuppuswami and another) relied by Sri RP Advocate it is always for the plaintiff to establish his case and he/she cannot imagine to succeed on the weakness of defendant and once the burden of proof is discharged by such plaintiff, onus would shift to the opposite party. In the case in hand by showing the legality of her documents and illegalities of Ex.D.2, D.3, D.4, D.5, D.32 and D.33 plaintiff has proved the strength of her pleading and evidence, whereas the defendants have failed to make any headway in the evidence placed by their opponent. Therefore I find no impediment in declaring that plaintiff is the absolute owner of 42 O.S.2203/2012 the schedule property and she is entitled for permanent injunction to restrain the defendants or anybody claiming under them from putting up construction or continuing the construction in the schedule-A property and also for mandatory injunction for removal of unauthorized construction made in B-schedule property measuring 25x25 feet. In addition to that she is entitled for recovery of possession of B-schedule property. The defendant No.2 being the alleged purchaser of eastern portion of A-schedule property he having failed to prove his possession and plaintiff having proved her title to the said property as well as possession, except the relief of permanent injunctions to restrain the defendants from interfering in the peaceful possession and enjoyment of schedule-A property as prayed in amended prayer-(b) and (c), as plaintiff herself seeks possession of B-schedule property, I wind up my discussion by answering issue No.4 and 5 partly in the affirmative.
48. ISSUE No.6: In the result I proceed to make the following:
ORDER Suit is partly decreed, with costs.
It is declared that plaintiff is the absolute owner of schedule-A property.
Consequently the defendants are directed to remove the unauthorized construction put up in the B-schedule 43 O.S.2203/2012 property measuring 25x25 feet within three months from the date of this Judgment at their cost and deliver vacant possession of it, failing which plaintiff to get done the same through the process of court at the cost and consequences of the defendants.
Further the defendants are
permanently restrained from putting up
any sort of construction/s in the A-
schedule property.
Draw decree accordingly.
(Dictated to the Stenographer, transcription computerized, then corrected and pronounced by me in open court this the 19th day of November 2018) (RON VASUDEV) III Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witness examined on plaintiff's side:
PW.1 Harshaprakash List of documents exhibited on plaintiff's side:
Ex.P1 General Power of Attorney executed
by plaintiff in favour of PW.1
Ex.P.2 Sale Deed dated 17.02.1992
Ex.P.3 Form No.III
Ex.P.4 to Tax paid receipts
P.9
44 O.S.2203/2012
Ex.P.10, Acknowledgements of BBMP
P.11
Ex.P.12 to Tax paid receipts
P.14
Ex.P.15 Form No.III
Ex.P.16 Certified copy of Registered General
Power of Attorney dated 03.02.1992,
registered on 12.02.1992
Ex.P.17 Certified copy of application of
plaintiff for regularization of property Ex.P.18 Complaint filed by husband of plaintiff at MICO Layout Police Station Ex.P.19 C.D Ex.P.19(a) Affidavit of PW.1 Ex.P.20 Sale Deed dated 17.02.1992, executed by Y.Venugopala Reddy through his GPA Holder-S.Viswanath in favour of Smt. D.L.Krishnaveni Ex.P.20(A) Typed copy of Ex.P.20 Ex.P.21 Sale Deed dated 10.5.1999, executed by Smt.Savitha @ Chandramma in favour of Nanjaiah Ex.P.21(A) Typed copy of Ex.P.21 Ex.P.22 Sale Deed dated 17.02.1992 executed by Y.Venugopala Reddy through his GPA Holder-S.Viswanath in favour of Savitha @ Chandramma Ex.P.22(A) Typed copy of Ex.P.22 Ex.P.23 Certified copy of General Power of Attorney executed by Smt.D.L.Krishna- veni in favour of K.N.Shashishekar 45 O.S.2203/2012 Ex.P.24 Sale Deed dated 02.07.2001, executed by Smt. D.L.Krishnaveni through her GPA Holder- K.N.Shashishekar in favour of Smt.Mangala.H.S Ex.P.25 Certified copy of approved building plan Ex.P.26 Photograph Ex.P.27 Rough hand sketch Ex.P.28, Photographs P.29 List of witnesses examined on defendants' side:
DW.1 P.Veera Ragavalu DW.2 G.P.Gopi DW.3 Raghunandhan Reddy
List of documents exhibited on defendants' side:
Ex.D.1 Photograph
Ex.D.2 Sale Deed dated 20.08.2003,
executed by DW.3 in favour of
Reddappa
Ex.D.3 Rectification Deed dated 14.09.2011,
executed by DW.3 in favour of
Reddappa
Ex.D.4 Sale Deed dated 15.07.2011,
executed by Reddappa in favour of
DW.1
Ex.D.5 Rectification Deed dated 14.09.2011,
executed by Reddappa in favour of
DW.1
Ex.D.6 to Khata extracts
D.11
Ex.D.12 Form-B Property Register extract
46 O.S.2203/2012
Ex.D.13 Tax paid receipt
Ex.D.14 to Encumbrance Certificates
D.17
Ex.D.18 to Tax paid receipts
D.27
Ex.D.28 Acknowledgement of BBMP
Ex.D.29 Certified copy of Will dated
18.11.1985, executed by
Smt.Nagamma
Ex.D.30 Certified copy of Mutation Register
Extract
Ex.D.31 Certified copy of village map
Ex.D.31(a) Relevant portion in Ex.D.31
Ex.D.32 Sale Deed dated 15.07.2011,
executed by Reddappa in favour of
DW.2
Ex.D.33 Rectification Deed dated 14.09.2011,
executed by Reddappa in favour of
DW.2
Ex.D.34, Encumbrance Certificates
D.35
(RON VASUDEV)
III Addl. City Civil & Sessions Judge,
Bengaluru.