Bangalore District Court
N.Ashok vs Smt.Susheelamma on 23 October, 2020
IN THE COURT OF THE XLI ADDL. CITY CIVIL JUDGE
AT BENGALURU (CCH No.42)
PRESENT:
Dr. Kasanappa Naik,
M.A., LL.M., Ph.D.
XL Addl. City Civil & Sessions Judge
Dated 23rd October, 2020
OS.No.591/2016
PLAINTIFF/S : N.Ashok
S/o C.Nanjundappa
Aged about 39 years
R/at No.11, R.S.Palya
M.S.Nagar Post
Bangalore560 033
(By Sri.V.Vijayashekara Gowda,
Advocate)
V/s.
DEFENDANT/S : 1. Smt.Susheelamma
W/o Ramachandrachari
D/o Late.Pillamaligachari
Aged about 58 years
2. Smt.Jayalakshmamma
W/o Chennachari
D/o Late.Pillamaligachari
2 OS.591/2016
Aged about 56 years
Both are R/at
Jyothinagara
Horamavu, Agara Post
Bangalore560 043.
3. Smt.Eshwaramma
W/o Nagarajachari
D/o Late.Pillamaligachari
Aged about 50 years
4. Nagarajachari
Husband of Smt.Eshwaramma
Aged about 56 years
Defendants 3 and 4 are
R/at Kowdenahalli Village
Ramaiah Layout
Ramamurthynagar
Bangalore560 016.
(D1 & D2 By
Sri.B.R.Prabhulingamurthy.,
D3 & D4 By Sri.B.M.Venkatesha,
Advocates)
Date of Institution of the Suit 21.01.2016
:
Nature of Suit : Permanent injunction
(Suit on Pronote, suit for
3 OS.591/2016
declaration & possession, suit
for injunction)
Date of commencement of 29.08.2017
recording of evidence :
Date on which, the Judgment 23.10.2020
was pronounced :
Total Duration : Year/s Month/s Day/s
04 09 02
JUDGMENT
The suit is for the relief of permanent injunction restraining the defendants or anybody on their behalf from interfering with the lawful, peaceful, physical possession and enjoyment of the plaintiff over the schedule property, to award costs of the suit and such other reliefs.
2. The facts of the case are as under:
The plaintiff claims to be the owner and in possession of 4 OS.591/2016 the converted property in Sy.No.85/6 (Old Sy.No.85/1) situated at HoramavuAgara Village, K.R.Puram Hobli, Bangalore East Taluk measuring 10 guntas as per the boundaries mentioned in the plaint. (herein after 'suit property' for short).
The plaintiff claimed that he acquired the suit property under gift deed dated 08.01.2015 executed by his father C.Nanjundappa. The khatha of the suit property is standing in the name of the plaintiff and he has paid tax, so also developmental charges of Rs.2,54,300/ to the BBMP. The plaintiff also contends that his father C.Nanjundappa purchased the land measuring 1 acre 2 guntas from one V.Nagarajachari S/o Basappachari under sale deed dated 01.09.1990. After purchase, the mutation was effected in the name of father of the plaintiff in M.R.No.17/199091 and his name was 5 OS.591/2016 appearing in the RTC of the then land bearing Sy.No.85/1. It is contended that one M.Basavachari, who is brother of defendants No.1 to 3 and brotherinlaw of defendant No.4 has sold his share of 5 guntas of land in Sy.No.85/1 of same village in favour of one Mr.Antony Chacko and put him in lawful, peaceful and physical possession of the property mentioned in the sale deed dated 05.06.2004. On the southern side of said 5 guntas of property belonging to Antony Chacko, the suit property is situated.
It is alleged that defendants No.1 to 3 colluding with other family members including the vendor of said Antony Chacko by suppressing the sale of 5 guntas by Basavachari in favour of said Antony Chacko, the defendants No.1 to 3 and other defendants have filed a suit in OS.1594/2005 on the file of 1 st Addl. Senior Civil 6 OS.591/2016 Judge, Bengaluru Rural District for the relief of partition by giving wrong boundaries and with respect to non existing property. The intention of the defendants No.1 to 3 was to deceive the neighbouring land owners including the said Antony Chacko. The boundaries of the property sold in favour of Antony Chacko was, East by remaining portion of land in same Sy.No.85/1, West by road, North by Railway Track and South by the remaining portion of same Sy.No.85/1 i.e. land measuring 1 acre 2 guntas belongs to father of the plaintiff. It is contended that except said 5 guntas of land, there is no inch of land is available for defendants No.1 to 3 and their alleged family members to file suit for partition. The boundaries mentioned in the sale deed dated 01.09.1990 executed by B.Nagarajachari in favour of father of plaintiff itself indicate that by East: lands of 7 OS.591/2016 Peter Samuel, West: by Government Road, North by lands of Pillamaligachari, which are lands measuring 5 guntas sold by Basavachari, who is son of Pillamaligachari in favour of Antony Chacko and South by private property. Thus, it is contended that towards north of 5 guntas of land of Antony Chacko, there is railway tracks and on its southern side, there exists land measuring 1 acre 2 guntas of the father of the plaintiff. The suit property of plaintiff is now said to have been abutting property of Antony Chacko on its northern side and on its southern side, there is remaining property of his father in the old Sy.No.85/1, which is now converted as Sy.No.85/6.
It is further alleged that the defendants No.1 to 3 and their other family members created 11E sketch by forging the signatures of revenue officials of Bengaluru 8 OS.591/2016 East Taluk and obtained a collusive compromise decree and same was registered on 31.08.2008. Based on the final decree arising out of said compromise, the defendants No.1 to 3 approached the Tahsildar, Bengaluru East Taluk with a fake claim to mutate khatha in their favour. Without there being any enquiry, only based on said fake and fraudulent final decree, the Tahsildar mutated khatha in favour of defendants No.1 to
3 as per M.R.No.15/200708, 16/200708 and 17/2007 08 in respect of 6 guntas of land each. In the said 11E sketch, there is mention that defendants No.1 to 3 are having 7 guntas each, but in the RTCs, 6 guntas of land each has been mutated fraudulently, because there is no such land available in the segment of Pillamaligachari at any point of time, in view of 38 guntas of land in said segment has been taken over by Salem Railways for 9 OS.591/2016 formation of Railway Lane about 3 decades back and thereby, no such lands are available except said 5 guntas of land situated in between Railway Lane and schedule property. Said extent of land was possessed by Pillamaligachari before the lands were acquired by the Railways. The fake claim of defendants No.1 to 3 has been depicted in the RTCs for the year 200708, 200809, 201213, 201314, 201415 and 201516 in respect of old Sy.No.85/1 showing the name of purchaser Antony Chacko measuring 5 guntas as well as nonexisting land in favour of defendants No.1 to 3. The father of the plaintiff challenged fake mutation, fake RTCs and 11E sketches before the Deputy Director of Land Records (DDLR) attached to office of Deputy Commissioner, Bengaluru in Appeal No.33/201011 against defendants No.1 to 3, who contested the said appeal and DDLR 10 OS.591/2016 ultimately came to conclusion that defendants No.1 to 3 have got mutated 11E sketches by forging the signatures of Tahsildar, Surveyor and other revenue officials and allowed the appeal filed by the plaintiff by order dated 10.08.2011 and canceled the Tathkal phodi on its records and referring the final decree passed in favour of defendants No.1 to 3. The order passed by DDLR reached its finality as defendants No.1 to 3 have not challenged the said order anywhere. The father of the plaintiff challenged the fraudulent mutation found in above RTCs in respect of old Sy.No.85/1 in MR.No.15, 16 and 17/200708, which are allegedly standing in the name of defendants No.1 to 3, before the Assistant Commissioner, in R.A.(BE)124/201011. Ultimately, the Assistant Commissioner set aside the fraudulent mutations in MR.No.15,16 & 17/200708 and accepted the directions 11 OS.591/2016 issued by DDLR in Appeal No.33/201011 by order dated 25.06.2015. It is contended that defendant No.4 is the kingpin to create all these revenue records by forging and impersonating the signatures of surveyors, Tahsildar and other subordinate officials of Bengaluru East Taluk.
It is contended that defendants No.1 to 3 challenged the order passed by DDLR 10.11.2011 before Deputy Commissioner, Urban District, Bengaluru and the Deputy Commissioner has confirmed the order of DDLR and dismissed the said Revision Petition by order dated 06.09.2012. The RTC of the year 201516 go to show that the name of defendants No.1 to 3 has been removed and the name of said Antony Chacko for having 5 guntas of land has been shown. It is contended that except the persons, who are having khatha as per the RTCs with respect of land bearing Sy.No.85/1, there is no other 12 OS.591/2016 persons having right, title, interest or possession, over the said extent in Sy.No.85/1 including defendants. Since defendants have put forth their bogus claim in the said OS.No.1594/2005 by concealing valid sale made by their brother Basavachari and thereby, said fraudulent acts of the defendants resulted in creating all subsequent revenue documents by forging the signatures of Tahsildar, Suveyor and other revenue officials and said order of DDLR has put an end to all these fraudulent acts.
It is also contended that the father of plaintiff prior to execution of gift deed had obtained conversion order from Deputy Commissioner, which reflect in the RTC in favour of father of plaintiff on an extent of 22 guntas, 10 guntas and another 10 guntas in all forming 1 acre 2 guntas. It is clarified that out of said 1 acre 2 guntas, the northern most portion measuring 10 guntas is the suit 13 OS.591/2016 schedule property, which is converted land covered under the gift deed dated 08.01.2015. The father of the plaintiff after purchase of 1 acre 2 guntas, has protected entire land along with another 5 guntas of land belongs to his vendor B.Nagarajachari and that has been also included in the old mutation order by oversight by the revenue officials. Later, the said mistake has been rectified by passing another mutation order as per MR.No.3/200809. Based on the title and revenue records, Deputy Commissioner granted conversion order in favour of father of the plaintiff. Subsequently, the land in Sy.No.85/1 (new Sy.No.85/6) measuring 1 acre 2 guntas and surrounding areas have now come under jurisdiction of BBMP limits. The plaintiff has obtained valid khatha from the BBMP. Now the suit property has been protected by erecting stone slab compound and 14 OS.591/2016 plaintiff is about to start his construction activities to develop the suit property. After the orders passed by DDLR, Assistant Commissioner and Deputy Commissioner, the Tahsildar, Bengaluru East Taluk has passed further mutation order by removing the names of defendants from RTCs.
It is contended that in the first week of January 2016, the defendants unlawfully assembled nearby the suit property and started abusing the plaintiff and his family members alleging that because of his father, their names have been removed from the RTCs and other revenue records. The plaintiff approached Hennur Police Station with a complaint and when the Police Inspector of Hennur police sent its constables to the spot, the defendants fled away from the spot. It is alleged that again on 16.01.2016, the defendants and their men 15 OS.591/2016 gathered on the western side of the road of the suit property and proclaimed that they will not leave the plaintiff and his property and thus, they tried to trespass in the suit property and attempted to demolish the stone slab compound. Thus, the plaintiff claiming that they are in possession of suit property since two and half decades and apprehending interference at the hands of the defendants, filed this suit for the relief mentioned above on accruing cause of action.
3. The defendants No.1 to 4 have filed their common written statement, wherein, entire plaint claim and allegations have been denied. It is stated that the plaintiff has filed this suit based on created and fabricated documents for the purpose of wrongful gain. The defendants have categorically denied the claim of the 16 OS.591/2016 plaintiff that he is in lawful, peaceful, physical possession and enjoyment of the suit schedule property. It is alleged that without there being property and without there being title, C.Nanjundappa has executed gift deed to create illegal right over the property in favour of his son/plaintiff, who has filed this false suit. They also denied that their brother M.Basavachari put said Antony Chacko in possession of any of the portion of land Sy.No.85/1. They denied specifically that the said 5 guntas of land of Antony Chacko is situated on the northern side of suit property. They contended that sale deed executed by their brother M.Basavachari itself shows that there is no land of plaintiff or his father within boundary of the suit property. The plaintiff by filing suit without any property is trying to help creation of schedule in favour of Antony Chacko. They contended 17 OS.591/2016 that defendants No.1 to 3, Basavachari and others being members of joint family and children of Late. Pillamaligachari, in accordance with law have partitioned the property before the competent Court and the question of collusion between each others would not arise. The transactions done by M.Basavachari is confined to his share and same is not related to the defendants' share of property. They stated that in pursuance to the decree in OS.1594/2005, the defendants have obtained their share to an extent of 6 guntas in Sy.No.85/1 on the basis of sketch annexed to the decree. The said decree has not been challenged by anybody in accordance with law. The said Antony Chacko has to go into the share of M.Basavachari's property, which is still vacant and being enjoyed by his LRs. They have categorically stated that the property purchased by Antony Chacko is neither 18 OS.591/2016 adjacent nor in the share of these defendants' property on an extent of 18 guntas, which they are in physical possession of the same. They contend that the sale deed executed by M.Basavachari in favour of Antony Chacko or 5 guntas of land is not related to defendants 18 guntas of property in Sy.No.85/1. The boundaries of sale deed dated 01.09.1990 shows that north by Pillamaligachari's land and not 5 guntas sold in favour of Antony Chacko from M.Basavachari. The plaintiff and said Antony Chacko are the strangers to the defendants' land and they are trying to create title and boundaries by encroaching defendants' vacant land. It is alleged that father of the plaintiff has obtained conversion order without there being available land and gifted the same in favour of his son/plaintiff. The plaintiff failed to produce the conversion order and supporting documents. The 19 OS.591/2016 defendants have also denied the alleged interference in the suit property and cause of action to the suit. The suit is filed colluding with Antony Chacko, who purchased the land of 5 guntas from M.Basavachari, which is not adjacent to these defendants' property.
The defendants have taken up a defense that, one Lakshmanachari had four sons namely, Pillamaligachari, Sudnanamurthychari, Nanjundachari and Basavachari @ Basappachari. The vendor of the plaintiff is one of the son of said Lakshmanachari. The defendants No.1 to 3 and their brother, M.Basavachari are the daughters and son of Pillamaligachari. It is stated that said Lakshmanachari is the owner and in possession of land measuring 5 acre 7 guntas coupled with 5 guntas of kharab land in Sy.No.85/1 of HoramavuAgara Village. The said 4 sons of Lakshmanachari, have partitioned their 20 OS.591/2016 properties on 25.07.1947 under partition deed, wherein an extent of land measuring 1 acre 2 guntas each was fallen to the share of 3 sons, whereas, to the share of Pillamaligachari to an extent of 2 acres 1 guntas of property coupled with 5 guntas of kharab land was allotted. They have stated that as per the partition deed, the names of respective owners was mutated and they were in possession of land fallen to their share. It is stated that out of 2 acres 6 guntas of land fallen to the share of Pillamalagachari, an extent of 39 guntas of land was acquired by Railway authorities for development of new railway track, the land measuring 1 acre 7 guntas was retained by their father, which they are in joint possession of the same. The said Pillamalagachari died without effecting partition and he died leaving behind his children namely, M.Basavachari, Basavarajachari, 21 OS.591/2016 Savithramma, Susheelamma, Jayalakshmamma, Eshwarachari, Rathnamma and Eswaramma. They have contended that in pursuance to decree, they have obtained mutation entries in their favour with respect to portions allotted to their share and that their portions of property are adjacent to each other. The father of the plaintiff, who has purchased 1 acre 2 guntas of land in Sy.No.85/1 from one B.Narayanachari had obtained illegal entry in his favour to an extent of 1 acre 7 guntas. The same was got rectified at the instance of defendants. As per them, towards northern side of plaintiff's father's property, the property of these defendants is situated. The father of the plaintiff has formed revenue sites on his land measuring 1 acre 2 guntas and sold the same to various persons. The defendants No.1 to 3 have not developed their property and maintained the same as 22 OS.591/2016 vacant place. It is alleged that taking advantage of the fact that the properties of defendants is vacant and adjacent to his property, the father of the plaintiff has illegally obtained an order of conversion of land measuring 10 guntas and to escape from legal actions, he gifted the property in favour of his son/plaintiff. As per them, Antony Chacko is a stranger to the lands of these defendants. Sri. Antony Chacko has agreed to purchase 8 guntas of property from Basavachari as per agreement dated 19.11.1994, but he purchased 5 guntas of land from Basavachari on 05.06.2004 through sale deed. Said Antony Chacko has filed suit for specific performance of contract against one Manjunath, who is the son of said Basavachari in OS.3282/2007, which is pending. Antony Chacko has even filed suit for permanent injunction against defendants No.1 to 3 in OS.1779/2007, which 23 OS.591/2016 was dismissed on 17.11.2008. Antony Chacko has claimed an extent of 5 guntas of land in the portion of defendant No.1's land in OS.1683/2009. He has even claimed an extent of 5 guntas of land from the portion of land of defendant No.2 in OS.1595/2009. Thus, they contended that without there existing any land, the plaintiff's father Sri.Nanjundappa had obtained an order of conversion on an extent of 10 guntas based on bogus documents and gifted the said property in favour of plaintiff, who is trying to establish a boundary in favour of said Antony Chacko. Thus, these among other grounds prayed to dismiss the suit with costs.
4. On the basis of the above pleadings, the following issues have been framed:
1) Whether the plaintiff proves that he is in possession and enjoyment of the 24 OS.591/2016 suit schedule property as on the date of the suit?
2) Whether the plaintiff further proves the alleged interference by the defendants in his possession and enjoyment of the suit schedule property?
3) Whether the plaintiff is entitled to the reliefs sought for?
4) What order or decree?
5. In Support of his claim, the plaintiff examined his special power of attorney holder as PW1 and produced documents as per Ex.P.1 to P.47 in evidence. On the other hand, the defendant No.2 examined herself as DW1 and defendant No.4 examined himself as DW2 and they have produced documents as per Ex.D.1 to D.43.
25 OS.591/2016
6. I have heard the learned counsel for the parties and perused the materials on record.
7. My findings on the above issues are as under
Issue No.1 to 3 : In the Negative Issue No.4 : As per final order, for the following:
REASONS
8. ISSUE NOs.1 TO 3: Since these issues are interconnected with each other, they are taken together for discussion, in order to avoid repetition of facts.
9. The learned counsel for the plaintiff contended that, the plaintiff has produced title deed in support of his plaint claim and there is katha in his name and he has paid tax to government. Such being the case, the plaintiff 26 OS.591/2016 has established his title as well as possession over the suit property, there is no impediment to decree the suit. It is argued that there is ample evidence on record to show that, towards north of suit property, there is land of Antony Chacko and towards south, there is remaining land of the father of the plaintiff, towards west: road and towards east, there is remaining land in Sy. No. 85/1. It is also argued that the defendants have no right in the suit property and unnecessarily interfering in the possession of the plaintiff and thus, prayed to decree the suit
10. On the other hand, the learned counsel for the defendants contended that, the documents produced by the plaintiff are all disputed documents and no documents produced to show that, the land Sy.No.85/1 27 OS.591/2016 was got converted by the father of plaintiff as no conversion order is produced except the gift deed and katha, no other documents produced to prove that the suit property is situated within the boundaries as mentioned in the plaint. Thus, contended that when the plaintiff failed to establish his possession in the suit property, question of granting permanent injunction in his favour would not arise and thus, prayed to dismiss the suit.
11. Based on the rival contentions, I have carefully perused the material on record. As I already narrated, the plaintiff in support of his case examined his elder brother as PW1, who is the Special Power of Attorney Holder and the witness filed his evidence affidavit narrating the materials facts of plaint. He 28 OS.591/2016 deposed categorically that the suit property was gifted to the plaintiff by way gift deed and his name is mutated in the revenue records and he is paying tax. It is also contended that the defendants have illegally interfered in his possession of suit property.
12. PW1 has produced documentary evidence. Ex.P.1 is Special power of attorney dated 28.08.2017 executed by the plaintiff in favour of his elder brother N.Surendra Babu PW1 to conduct his case. Ex.P.2 is certified copy of gift deed dated 08.01.2015 executed by father of the plaintiff namely, C.Nanjundappa in favour of plaintiff gifting the suit property within the boundaries that east by: remaining land in Sy.No.85/1, west by:
Horamavu Agara Main Road, North by: remaining land in same survey number 85/1 and south by: remaining land 29 OS.591/2016 in Sy.No.85/6. Ex.P.3 is Registration of Khatha, wherein the suit property was standing in the name of plaintiff herein. Ex.P.4 is katha certificate with respect to suit property in the name of plaintiff. Ex.P.5 is tax demand extract for the year 201516, wherein, the suit property measuring 10 guntas is standing in the name of plaintiff. Ex.P.6 is tax paid receipt. Ex.P.7 is certified copy of sale deed dated 1.9.1990 executed by one B.Nagarajachari and his sons in favour of father of the plaintiff C.Nanjundappa selling an extent of land measuring 1 acre 2 guntas in Sy.No.85/1 and typed copy of same is Ex.P.7(a). Ex.P.8 to 18 are RTC Extracts. Ex.P.19 is MR Extract. Ex.P.20 to 28 are RTC Extracts with respect to various portions of Sy.No.85. Ex.P.29 is certified copy of the orders passed by the Joint Director of Land Records, Bengaluru in Appeal No.33/201011 dated 10.08.2011 30 OS.591/2016 filed by father of plaintiff Nanjundappa against various persons including the defendants, said Antony Chacko, wherein, the Appeal was allowed and Phodi work and durasthu of land Sy.No.85/1, 85/6, 85/7 and 85/8 passed by 1st respondent Surveyor, Bengaluru East Taluk, K.R.Puram was set aside and matter was remanded with a direction to ascertain the land acquired for Salem Railway in the same survey number and carry out fresh phodi and durasthu based on the documents of both the parties. Ex.P.30 is certified copy of the orders passed by Assistant Commissioner, Bengaluru North Sub Division in RA.(BE).No.124/2011 dated 25.06.2015, which was filed by C.Nanjundappa questioning the MR.15/200708, MR.No.16/200708 and MR.No.17/200708 with respect to land Sy.No.85/1 situated at Horamavu, Agara Village and directed 1 st 31 OS.591/2016 respondent Tahsildar, Bengaluru East Taluk to take necessary steps to mutate the names of respective parties pursuant to directions issued by the DDLR in the Appeal Ex.P.29. Ex.P.31 is certified copy of the orders passed by Deputy Commissioner, Bengaluru District dated 06.09.2012 in Revision Petition No.16/201112 filed by defendants herein, against various persons and said revision petition was dismissed confirming the order passed by DDLR. Ex.P.32 to P.42 are 11 photographs of suit property. Ex.P.43 is CD of photographs and Ex.P.44 is receipt of photographs. Ex.P.45 to P47 are also photographs said to be of suit property.
13. The PW1 was subjected to crossexamination by the counsel for the defendants, wherein he stated that the plaintiff has studied upto degree and he has studied 32 OS.591/2016 upto 7th standard. As per him, the plaintiff is running small software company in Whitefield, Bengaluru, and since the plaintiff is used to go outside and hence, it is not possible for him to depose in the case. He further deposed that he has given instructions to his Advocate to prepare the plaint. This evidence to go show that the plaintiff is not a author of the plaint and there is no sufficient reason for the plaintiff to avoid attending court. The witnesses has given boundaries of suit property as towards east: remaining land of Sy.No 85/1, west: road, north: remaining land of Sy.No.85/1 and south:
Sy.No.85/6. If the boundaries stated by the witness is compared with the plaint schedule, it is clear that he has not given clear and complete boundaries. He has not stated that, there is Horamavu Agara, Main Road to the west and not remainining land of Sy.No.85/1 belonging 33 OS.591/2016 to Antony Chacko, measuring 5 guntas and that south he has not stated that there is remaining land in Sy.No.85/6 belonging to father of plaintiff namely, C.Nanjundappa. This itself creates serious doubt regarding possession of the plaintiff in the suit property.
14. PW1 has denied that they are not in possession of suit property. He deposed that, after purchasing 1 acre 5 guntas, they have constructed compound to it. He has clearly admitted that after compound, there is 1 acre 2 guntas of land, the property of defendants No.1 and 2 is situated. This clearly indicate that the northern boundary to the land of the plaintiff is the property of defendants No.1 and 2. He has given clear admission that the property of defendants No.1 and 2 is situated towards northern side of their 34 OS.591/2016 property. This evidence of plaintiff is clearly falsified, that there is land of Antony Chacko towards northern side of the property of the plaintiff. Thus, it is clear that the plaintiff has furnished incorrect boundaries, which creates doubt about his possession in the suit property. He is unable to say that towards eastern side of the suit property, who has constructed house in Sy.No.85/1. This again creates doubt about the plaintiff being in actual possession of suit property. He has admitted that there is railway track running from eastwest in Sy.No.85/1, which is in the land of defendants No.1 to 4. He has clearly admitted that the property of defendants No.1 to 4 in situated in between the suit property and railway track. It is to be seen that as per the plaint, there is land of Antony Chacko, between the railway track and suit property. But, when the said land belongs to defendants 35 OS.591/2016 No.1 to 4, question of Antony Chacko being in possession of suit property measuring 5 guntas is falsified. He has denied that, the defendants have not interfered in the possession of the plaintiff. Again he deposed that towards northern side of the suit property, the property of Antony Chacko is situated. This again go to show that the plaintiff is changing their version as per his wish. Though he stated that at the time of phodi of Sy.No.85/6 notice was issued to the adjacent owner, but the same is not true as per the orders of revenue authority, which is clear from the documents produced by the plaintiff. Further, he has given evidence that he does not know that towards northern side of 1 acre 2 guntas of land purchased by them, the property of the defendants No.1 to 3 measuring 1 acre 2 guntas is situated, which goes to show that the witness has no knowledge about spot 36 OS.591/2016 position. The evidence of PW1 does not prove the plaint averments and more particularly, the plaintiff has failed to establish his possession of suit property within the boundaries, as mentioned in the plaint. The plaintiff has also failed the establish the boundaries of the suit property. The plaintiff produced the Photographs Ex P.32 to 42, but it is not is case of the plaintiff that there is construction in the suit property.
15. On the other hand, defendant No.2 has filed his evidence affidavit as DW1 narrating the material facts of written statement. She deposed that the father of the plaintiff has formed sites in 1 acre 2 guntas of land entirely and there is no other property left over in the entire layout of 1 acre 2 guntas. There is no other property left over in the land Sy.No.85/1 measuring 1 37 OS.591/2016 acre 2 guntas. She deposed that towards northern side of the plaintiff property, the property belongs to defendants No.1 to 3 is situated and taking advantage of the vacant possession of the defendants' property, the father of the plaintiff has got illegal conversion to the extent of 10 guntas of land in Sy.No.85/1 and gifted the same to the plaintiff. She also deposed that there is civil dispute between Antony Chacko and the defendants and said Antony Chacko has filed injunction suit against the defendants in OS No.1779/2007 and the same was dismissed. She has also deposed that they have filed a suit against the Antony Chacko in OS.No.1595/2009 and her suit is decreed with cost declaring that she is owner of land mentioned in the suit and for permanent injunction against the Antony Chacko and others. 38 OS.591/2016
16. The DW1 was crossexamined by the learned for the plaintiff in detail. She admitted that towards northern side of the property fallen to the share of her father, there are properties of her junior paternal uncle.
She has denied that she has withdrawn OS.No.1595/2009. She admits that towards southern side of the property of her father, there is property of Nagarajachari measuring 1 acre 2 guntas is situated. She admitted that the said 1 acre 2 guntas of land belonging to Nagarajachari was purchased by father of the plaintiff. This suggestion indicate that there is property of defendants towards north of land of the father of the plaintiff measuring 1 acre 2 guntas. This exclude the property of Antony Chacko as claimed by the plaintiff towards north of property of father of the plaintiff measuring 1 acre 2 guntas. She has deposed that there 39 OS.591/2016 was no dispute between the father of the plaintiff and her family members with regard to 1 acres 2 guntas of land purchased by the plaintiff's father. She admits that the land fell to the share of her sisters is converted for non agricultural purpose. She admits that Basavachari sold 5 guntas of land situated on the northern side of plaintiff's land, to Antony Chacko and hence they have filed OS.No.1595/2009 against Antony Chacko. She does not know whether they have produced documents to show that the plaintiff father has encroached 10 guntas of property belonging to defendants. She deposed that the land involved in OS.No.1595/2009 as per ExD1 and the land of Antony Chacko are the same land. She admits that in the said suit Antony Chacko had claimed 5 guntas of property in Sy.No.85/1. When the plaintiff's counsel asked the question that there is land of Antony Chacko 40 OS.591/2016 towards north of land of C.Nanjundappa, the witness stated that they have filed suit regarding said property and same is decreed in their favour. She admits that her brother Basavachari sold 5 guntas of land in favour of said Antony Chacko. She has denied that they have no property towards north of property of C.Nanjundappa. She has even denied that except the land of Antony Chacko, there is no other property towards north of land of C.Nanjundappa.
17. Defendant No.4 has filed his evidence affidavit as DW2 and has narrated the material facts of the written statement. The witness produced Ex.D34 to 43 in evidence. This witness is the husband of defendant No.3 and in fact he has no any independent claim in the suit property. This witness was subjected to a lengthy cross 41 OS.591/2016 examination by the learned counsel for the plaintiff. He admits that there is railway track towards north and land of C.Nanjundappa towards south of land Sy.No.85/1 measuring 1 acre 2 guntas. The suggestion indicate that there is no land of Antony Chacko between Railway Track and land of father of plaintiff Sri.Nanjundappa. He admits that his brotherinlaw Basavachari had filed a suit in OS.8768/2002 before CCH15 against Shankarpillai including his wife and her sisters. He also admits that Shankarpillai had filed OS.1818/2007 on the file of CCH 15 against his wife and two sisters and said Basavachari and his brothers. He admits that the said two suits were clubbed and common evidence was recorded. He does not know whether the suit filed by Basavachari was dismissed and suit filed by Shankarpillai was decreed. He has denied that the property fallen to the share of 42 OS.591/2016 Basavachari S/o Pillamalagachari was sold whatever retained by him. He has denied that Basavachari sold one site in favour of R.Shankarpillai. He has admitted that Basavachari sold 5 guntas of property in favour of Antony Chacko. He has denied that said 5 guntas of land is abutting land of C.Nanjundappa. He admits that there is RTC in the name of Antony Chacko in respect of said 5 guntas of property. He admits that the name of defendants No.1 to 3 was removed from the RTC of land Sy.No.85/1. He has denied that said 5 guntas of land is abutting land of C.Nanjundappa. He admits that there is stone slab compound between the suit property and land of Antony Chacko. He admits that defendants No.1 to 3 have filed suit in OS.No.1595/2009 against Antony Chacko in respect of 5 guntas of land of Antony Chacko. He has denied that defendants No.1 to 3 have no title in 43 OS.591/2016 the suit property. He has denied that the land measuring alleged 6 guntas each is situated towards northern side of land of Antony Chacko, which was sold to him by Basavachari. This suggestion indicate that defendants have property towards land of Antony Chacko. There is suggestion that the defendants No.1 to 3 have constructed building on the portion of land belonging to Antony Chacko, which is encroached by them and said suggestion has been denied by the witness. He admits that there are shops of defendants No.1 to 3 towards north of shed of Shankarpillai. He has further denied that there is no any property of defendants No.1 to 3 towards north of suit property.
18. Defendants produced documentary evidence. Ex.D.1 and D.2 are certified copies of judgment and 44 OS.591/2016 decree in OS.1595/2009 passed by the learned 37 th Addl. City Civil and Sessions Judge (CCH38), Bengaluru City dated 31.10.2017, wherein, the defendant No.2 has filed the said suit against said Antony Chacko for the relief of declaration and permanent injunction with respect to 6 guntas of land in Sy.No.85/1 and the said suit was decreed declaring the defendant No.2 as owner of said property and also granted permanent injunction. The said Antony Chacko has set up counter claim with respect to 5 guntas of land in Sy.No.85/1 and same was dismissed by the Court. A liberty was reserved to said Antony Chacko to file a suit for partition against the legal representatives of M.Basavachari and seek allotment of 5 guntas of land out of 7 guntas allotted to the share of legal heirs of M.Basavachari under the compromise decree in OS.1594/2005. Ex.D.3 is certified copy of 45 OS.591/2016 orders passed by the Deputy Director of Land Records in Appeal No.72/201415 dated 13.07.2016, wherein, the appeal filed by defendants No.1 to 3 against various persons, including C.Nanjundappa and Antony Chacko, challenging the hissa phodi of Sy.No.85/1 as 85/1 and 85/6 by Tahsildar, Bengaluru as per order dated 21.01.2015. Ex.D.4 is records of rights with respect to land bearing Sy.No.81 totally measuring 5 acre 7 guntas excluding kharab of 5 guntas. Ex.D.5 and 6 are two RTC extracts. Ex.D.7 is mutation extract. Ex.D.8 is encumbrance certificate. Ex.D.9 to 17 are 9 tax paid receipts. Ex.D.18 and D.19 are two receipts of BESCOM. Ex.D.20 is BESCOM permission letter. Ex.D.21 to 32 are 12 photographs. Ex.D.33 is CD of Ex.D.21 to 32. Ex.D.34 to D.36 are certified copies of RTCs of land bearing Sy.No.85/1 measuring 5 acre 12 guntas 46 OS.591/2016 excluding kharab of 5 guntas. Ex.D.37 is copy of sketch. Ex.D.38 to D.40 are 3 MR Extracts. Ex.D.41 is RTC of land bearing Sy.No.85/1 for the year 201112, wherein, an extent of 1 acre 2 guntas of land is standing in the name of C.Nanjundappa. Ex.D.42 is certified copy of sketch. Ex.D.43 is certified copy of order sheet in R.P.No.393/201516 of the office of the Deputy Commissioner, Bengaluru, wherein, the defendants No.1 to 3 have questioned the order passed by Assistant Commissioner, North Sub Division, Bengaluru passed in RA(BE)194/201011 dated 25.06.2015 and same was filed against C.Nanjundappa and same is shown pending.
19. A careful perusal of the oral and documentary evidence produced by the parties go to show that the plaintiff claimed to be in possession of suit schedule 47 OS.591/2016 property measuring 10 guntas as per the boundaries mentioned in the plaint. The plaintiff claimed that he acquired the said property from his father under gift deed dated 08.01.2015 Ex.P.2. But, however, a careful perusal of boundaries mentioned in the schedule to the document go to show that the name of the persons, who are in possession of lands towards east, north and south of the property, has not been mentioned. But in the plaint the plaintiff has shown the northern boundary as remaining land in same survey number belongs to Antony Chacko measuring 5 guntas covering under the sale deed dated 05.06.2004. In this case, the defendants have denied the very existence of suit property on the spot and so also the land of Antony Chacko towards north of the suit property. In this regard, it is seen that the plaintiff has not produced the sale deed of Antony Chacko to 48 OS.591/2016 prove that the southern boundary of his land measuring 5 guntas is the land of the plaintiff herein. The plaintiff contends that his father has got converted his land measuring 1 acre 2 guntas and formed sites, except 10 guntas sold in favour of plaintiff. But, it is seen that the plaintiff failed to produce the conversion order in the evidence. When the defendants have denied the possession of the plaintiff over suit property, there is heavy burden upon the plaintiff to prove his lawful possession in the suit property on the basis of oral and documentary evidence. Though the plaintiff has produced the RTCs Ex.P.8 to P.23, but in no RTC his name is entered. On the other hand, there is RTC in the name of his father to an extent of land measuring 1 acre 2 guntas. The plaintiff produced his khatha registration, khatha certificate and khatha extract, which go to show his 49 OS.591/2016 possession over 10 guntas of land, but the oral evidence of plaintiff, as I already discussed, creates serious doubt about his actual possession of the suit property. Though the defendants admit that their brother Basavachari sold 5 guntas of land in favour of Antony Chacko, but as per the defendants there is no land of Antony Chacko on the spot.
20. PW1 in his crossexamination has deposed that northern boundary of suit property as remaining land of Sy.No.85/1 and not the property of Antony Chacko. He deposed that they have formed 12 to 13 sites in 35 guntas of land Sy.No.85/6. It is seen that the father of the plaintiff has purchased 1 acre 2 guntas of property under Ex.P.7 and if the sites are formed on 35 guntas, there remain only 7 guntas of property and when such 50 OS.591/2016 being the case, the father of the plaintiff cannot gift 10 guntas of property in favour of the plaintiff. This goes to show that the father of the plaintiff has executed gift deed with respect to more extent of property then the property actually available on the spot. The plaintiff failed to produce the alienation order in evidence and so also the sketch of the layout, on which his father was permitted to form layout. He has clearly admitted that after the compound to the 1 acre 2 guntas, the property of defendants No.1 and 2 is situated. The admission available at Page No.24 of the deposition of PW1 clearly reveals that there is no land of Antony Chacko towards north of suit property. He has further clarified that property of defendants No.1 and 2 is situated towards northern side of their property. This goes to show that the boundaries mentioned by the plaintiff with respect to 51 OS.591/2016 suit property in the plaint is not correct. This witness does not know who has constructed house towards eastern side of suit property in Sy.No.85/1. This also creates doubt about possession of the plaintiff in the suit property. The witness admits that property of defendants No.1 to 4 is situated in between suit property and railway track. This again exclude the property of Antony Chacko, which is alleged to be situated towards north of suit property. The witness at Page No.27 of deposition has pleaded ignorance by stating that he does not know that towards northern side of 1 acre 2 guntas of land purchased by him, the property of defendants No.1 to 3, which is measuring 1 acre 2 guntas is situated. If at all, there is property of Antony Chacko, the witness ought to have stated the same.
52 OS.591/2016
21. The Hon'ble Supreme Court in AIR 2008 SC 2033 (Anathula v. P.Buchi Reddy dead by LRs and others) has provided guidelines as to the requirements to be complied in the suit for prohibitory injunction relating to immovable property, which are as under:
a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction.
Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and 53 OS.591/2016 substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)].
Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact 54 OS.591/2016 and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it 55 OS.591/2016 will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
22. Thus, even in this case, the plaintiff failed to produce conversion order obtained by his father and so also sketch to establish that in fact there is a land of 10 guntas is in existence on the spot within the boundaries mentioned in the plaint. As I already pointed out, the boundaries mentioned in the plaint schedule and boundaries mentioned in the gift deed does not completely tally. The plaintiff claimed that there is land of Antony Chacko towards north of his property as per his sale deed, but sale deed of Antony Chacko itself is not produced to establish that there is land of plaintiff towards south of his land. The photographs produced by 56 OS.591/2016 plaintiff go to show that there are houses constructed around the open space, but the plaintiff has not mentioned the name of such persons as the adjacent owners of suit property. The counsel for the plaintiff in the crossexamination of DW1 suggested that they have withdrawn OS.1595/2009, but Ex.D.1 falsifies the same as the dispute between the defendant No.2 and Antony Chacko was settled on merits. There is direction in the said suit to Antony Chacko, the defendant therein, to seek allotment of 5 guntas of land out of 7 guntas allotted to the share of legal heirs of M.Basavachari under compromise decree in OS.1594/2005, but it is not clear whether he has taken steps to file such suit.
23. Further, the Hon'ble High Court of Karnataka in 2017(4) KCCR 3144 (Smt. Sathyamma v. Smt. 57 OS.591/2016 Kempamma) has held that, in a suit for permanent injunction, when there is no issue cast upon the defendant and entire issues are cast upon the plaintiff, it is ultimately plaintiff has to succeed or fail on the case madeout by the plaintiff himself/herself. Even there are lapses and lacuna on the part of defendant, the plaintiff cannot rely upon the weakness of the defendant for the purpose of succeeding her case. The weakness or lapses on the part of the defendants cannot be taken as filling up of the blanks or lapses, lacunas in the case of the plaintiff. Therefore, the plaintiff has to stand on her own footing. If once the plaintiff establishes or proves her case with all probabilities, then only the Court has to look into whether the proven case of the plaintiff is disturbed or disproved by the defendants' case by means of preponderance of probabilities. The plaintiff herself 58 OS.591/2016 failed to establish her case, even the defendants weakness in any manner cannot be taken into consideration for the purpose of taking the case of the plaintiff as proved, which is fundamental basic principle.
24. Even in this case, as I already narrated, the defendants have categorically denied that there is property of Antony Chacko towards north of the property of C.Nanjundappa and the defendants claimed that there is their property, then the plaintiff ought to have established the possession of his property with the help of relevant oral and documentary evidence. But, in this case as I find that the plaintiff failed to prove his possession on the suit property within the boundaries mentioned in the plaint. Even as per the PW1 itself, they have formed 12 to 13 sites in an extent of 35 guntas of land and when the 59 OS.591/2016 father of the plaintiff is owner of land measuring 1 acre 2 guntas, there is no land to gift 10 guntas in favour of plaintiff. Thus, the title of the plaintiff itself is doubtful and when such being the case, the plaintiff ought to have filed suit for declaration and suit for mere injunction is not maintainable. As I already pointed out, there is no satisfactory evidence to prove the possession of the plaintiff in the suit property within the boundaries mentioned in the plaint. As I already narrated PW1 himself in his crossexamination has admitted that after purchase of 1 acre 2 guntas, they have constructed compound to said property. They also admits that after the compound to the said 1 acre 2 guntas, the property of defendants No.1 and 2 is situated and he clearly stated that the property of defendants No.1 and 2 is situated towards northern side of their property. These fatal 60 OS.591/2016 admissions of PW1 indicate that there is no property of Antony Chacko towards north of the property of father of plaintiff measuring 1 acre 2 guntas, but there is land of defendants No.1 and 2. But, at page No.25, para No.8 of evidence of PW1, he again said that towards northern side of suit property, the property of Antony Chacko is situated. Thus, there is inconsistency in the evidence of PW1 and such evidence is not sufficient to grant decree of permanent injunction. The Hon'ble High Court of Karnataka, in ILR 1987 KAR P.2883 (Krishnegowda v. Ningegowda) has held as under:
"The burden of adducing evidence is not constant and it shifts as the case continues to develop. When once the entire evidence is adduced and on the entire evidence on record the Court is able to come to the conclusion that the case pleaded by the 61 OS.591/2016 plaintiff is established, it will be a case for holding that the plaintiff has discharged his burden. On the contrary, if the Court is not able to come to a definite conclusion as to which version i.e. either to the plaintiff or of the defendant is true, in such an event, as the burden of proof on the pleading is on the plaintiff, it will be a case where the plaintiff has failed to prove the case pleaded by him and thereby he has failed to discharge the burden of proof."
25. Thus, even in this case, the plaintiff has not produced satisfactory oral and documentary evidence to establish his title and possession over the suit property as per the boundaries mentioned in the plaint. Therefore, I find that the plaintiff has failed to establish his suit claim.
26. In this case, PW1 in the crossexamination has deposed that himself and his brother Ashok/plaintiff and 62 OS.591/2016 one Ramesh, were there on the spot, when the defendants tried to interfere in their possession of suit property on 08.01.2016 and interference of the defendants has been denied by counsel for the defendants.
27. DW2 in the crossexamination has denied that the police had summoned the defendants and warned not to interfere in the possession of the plaintiff in the suit property. If at all, the plaintiff reported to the police that they ought to have produce some documents to show the interference. Thus, the plaintiff has even failed to prove the illegal interference of defendants in the suit property. Thus, consequently, the suit is liable to be dismissed. Hence, Issue No.s 1 to 3 are answered in the negative. 63 OS.591/2016
28. ISSUE NO.4: In view of my findings on above said issues, the suit filed by the plaintiff is liable to be dismissed. Hence, in the result, I proceed to pass the following:
ORDER The suit of the plaintiff is dismissed. No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment writer directly on computer, typed by her, thereafter corrected and then pronounced by me, in the open Court, on this the 23 rd day of October, 2020).
(Dr. KASANAPPA NAIK) XLI ADDL. CITY CIVIL JUDGE BENGALURU.
64 OS.591/2016ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff/s' side:
P.W.1 N.Surendra Babu
b) Defendant/s' side:
D.W.1 Smt.Jayalakshmamma
D.W.2 Nagarajachari
II. List of documents exhibited on behalf of:
a) Plaintiff/s' side:
Ex.P.1 Special power of attorney dated
28.08.2017
Ex.P.2 Certified copy of gift deed dated
08.01.2015
Ex.P.3 Registration of Khatha
Ex.P.4 Katha Certificate
Ex.P.5 Tax demand extract
65 OS.591/2016
Ex.P.6 Tax paid receipt
Ex.P.7 C/c of sale deed dated 01.09.1990
Ex.P.7(a) Typed copy of Ex.P.7
Ex.P.8 to 18 11 RTC Extracts
Ex.P.19 MR Extract
Ex.P.20 to 28 9 RTC Extracts
Ex.P.29 C/c of orders passed by the ADLR dated
10.08.2011
Ex.P.30 C/c of orders passed by Assistant
Commissioner dated 25.06.2015
Ex.P.31 C/c of orders passed by Deputy
Commissioner dated 06.09.2012
Ex.P.32 to 42 11 Photographs
Ex.P.43 CD of Ex.P.32 to P.42
Ex.P.44 Receipt of photography
Ex.P.45 to 47 3 Photographs
66 OS.591/2016
b) Defendant/s' side:
Ex.D.1 & 2 Judgment and decree in OS.1595/2009
Ex.D.3 Certified copy of orders passed by the
Joint Director of Land Records
Ex.D.4 Certified copy of Village Form No. 2
Ex.D.5 & 6 2 RTC Extracts
Ex.D.7 Mutation Extract
Ex.D.8 Encumbrance Certificate
Ex.D.9 to 17 9 Tax paid receipts
Ex.D.18 & 19 Two receipts of BESCOM
Ex.D.20 BESCOM Permission
Ex.D.21 to 32 12 Photographs
Ex.D.33 CD
Ex.D.34 to 36 RTCs
Ex.D.37 Copy of sketch
Ex.D.38 to 40 3 MR Extracts
67 OS.591/2016
Ex.D.41 RTC
Ex.D.42 C/c of sketch
Ex.D.43 C/c of order in RP.393/201516
(Dr. KASANAPPA NAIK)
XLI ADDL. CITY CIVIL JUDGE
BENGALURU.