Bangalore District Court
P.Shreyas vs Smt. Rajeshwari on 11 October, 2017
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge.
Dated this the 11th day of October 2017
PLAINTIFFS: 1 P.SHREYAS
S/o K.Purushotham,
Aged about 20 years,
Residing at No.33, 1st Floor,
S.M.Layout, Cottonpet,
Bangalore-560 053.
2. SRI K. PURUSHOTHAM
S/o Late B.T. Ramanna,
Aged about 47 years,
Residing at 1st and 2nd Floor,
No.12/1A, S.M.Lane,
Akkipet, Bangalore-560 053.
Discharged as per order
dated 21/4/2017
[By Sri B.Srinivas, Advocate]
/v e r s u s/
DEFENDANTS: 1. SMT. RAJESHWARI
W/o Late R.Narayan,
Aged about 48 years,
No.10, Shanbogue,
Venkatappa Galli,
Mill Road, Cotton Pet,
Bangalore-560 053.
2. MANJUNATH.K.
S/o N.Krishnappa,
2 CT0028_O.S._3082_2010_Judgment_
Aged about 30 years,
No.232, 3rd Stage,
2nd Block, West of Chord Road,
Basaveshwara Nagar,
Bangalore-560 079.
3. THE BRUHAT BANGALORE
MAHANAGARA PALIKE,
N.R.Square, Bangalore-560 002,
Represented by its
Commissioner.
4. THE ASSISTANT REVENUE
OFFICER,
Chickpet Range,
Bruhat Bangalore Mahanagara
Palike, Bangalore-560 053.
D1- By Sri ANK, Advocate
D2- By Sri MSH, Advocate
D3 and D4 - By Sri MRV, Advocate
Date of institution of the : 3/5/2010
suit
Nature of the suit : For declaration and
injunction
Date of commencement of : 7/8/2013
recording of the evidence
Date on which the : 11/10/2017
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
7 5 8
(S.H. Hosagoudar)
XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against the defendants for
the relief of injunction and declaration to declare that the
3 CT0028_O.S._3082_2010_Judgment_
plaintiff is the owner of the 'B' schedule property; and to
declare that the act of the defendant no.1 in conveying
the portion of 'A' schedule property to the extent of 22' 6"
feet East to West and North to South 29-6 feet under
Deed of Sale dated 21/4/2010 in favour of the send
defendant as being illegal and without authority; and for
the relief of permanent injunction restraining the second
defendant, his agents, supporters etc., or anybody else
claiming through him or seeking to act on his behalf from
in any manner interfering with the plaintiff's possession
and enjoyment of the 'B' schedule property or from
demolishing any portion thereof; and for the relief of
permanent injunction retraining the third and fourth
defendants, their officers, subordinates from making out
katha in favour of the second defendant or anybody else
in respect of the eastern portion of the 'A' schedule
property.
2. In brief, the plaintiff's case is as under:
Plaintiff submits that the property bearing No.8
Bhuvaneshwari Nagar, Mariyappanapalya, Bangalore,
BBMP Ward No.120, measuring East to West 34 feet and
North to South 29-6 feet belonged to one Smt.
4 CT0028_O.S._3082_2010_Judgment_
Kempamma, wife of Late B.T.Ramanna, who has 3 sons
by name (1) R.Narayana; (2) K. Balaram;
(3) K.Purushotham. Above said property is described as
'A' schedule property and the 'A' schedule property
consists of A.C. sheet roofing house and 3 shops in the
front.
Plaintiff further submits that under the Will dated
13/2/2003 executed by Smt. Kempamma and registered
in the office of the Sub Registrar, Basavanagudi,
Bangalore, she had bequeathed the portion of the 'A'
schedule property on the western side comprising of one
shop measuring East to West 8 ¼ feet and North to
South : 29 ½ feet as per the Will in favour of the plaintiff
herein being her grandson. Similarly under the same Will
Smt. Kempamma is said to have bequeathed in favour of
Smt.Rajeswari, Wife of Late R.Narayan, the portion of 'A'
schedule property on the Eastern side comprising of 2
shops measuring East to West : 19 ¼ feet and North to
South : 29 ½ feet. That Smt. Kempamma having passed
away at Bangalore on 10/6/2005, under the bequest
made in his favour the portion of the 'A' schedule
property on the western side now belongs to the plaintiff
5 CT0028_O.S._3082_2010_Judgment_
and he is now in possession and enjoyment of the same.
That the fact of execution of the Will bequeathing the
aforesaid portion of 'A' schedule property which is
morefully described in the Schedule "B" hereunder to the
plaintiff became known during June/July 2007. Apart
from the plaintiff nobody else can be said to have any
manner of right claim to the Schedule -B property.
Plaintiff further submits that in the portion of the 'A'
schedule property said to have been bequeathed in
favour of the first defendant herein, the Two Shops
therein since from the time of Smt.Kempamma were let
out to Sri Krishnappa who is running a Wine Shop
therein, byname Shanthala Wines. That, it has not
became known that even as per the bequest made in the
Will dated 13/2/2003, the portion of 'A' schedule
property left to Smt.Rajeshwari, the first defendant is
shown as East to West : 19 ¼ feet and North to South :
29 ½ feet, the first defendant by showing the common
passage in the eastern portion of the 'A' schedule
property as the boundary of the property fallen to her to
an extent of 2' 6" has executed the Deed of Sale in
respect of her portion of the property in favour of the
6 CT0028_O.S._3082_2010_Judgment_
second defendant herein to the extent of 22'6" feet East
to West and North to South : 296 feet vide Deed of Sale
dated 21/4/2010 executed in the office of the Sub-
Registrar, Srirampuram, Bangalore, registered as
Document No.156 of Book-I, Volume 6, Pages 10-11, that
though the first defendant could not have conveyed the
portion of her property to the extent of 22-6 feet on the
eastern side of 'A' schedule property the second
defendant now is trying to interfere with the plaintiff's
possession and enjoyment of the Schedule 'B' and is
seeking to demolish the wall on the western side of the
Schedule 'B' property so as to illegally occupy a portion of
the same. That the second defendant being a powerful
person along with his henchmen had on 28/4/2010
sought to interfere with the plaintiff's possession and
enjoyment of the 'B' schedule property and to demolish
the wall on the western side separating the two portions
and it was with great difficulty that the said illegal acts
were resisted and it is likely that the second defendant
would seek to carry out his illegal acts in which even it
would not be possible for the plaintiff to resist their illegal
7 CT0028_O.S._3082_2010_Judgment_
acts without the aid and interference from this Hon'ble
Court. Hence this suit.
3. In response to the suit summons issued by the
court, defendants 1 to 4 appeared through their
respective counsel and defendant no.1 and 2 filed
separate written statement and defendant no.3 and 4
filed joint written statement.
4. In brief, contents of the written statement and
additional written statement filed by the defendant no.1
are as under:
The suit of the plaintiff is not maintainable either in
law or on facts and same is liable to be dismissed. There
is no prayer sought for against defendant no.1. The
allegations made in para no.3 of the plaint that property
bearing no.8 Bhuvaneshwari Nagar, Mariyappana Palya,
Bangalore belonged to one Smt. Kempamma wife of late
B.T. Ramanna who has three sons by name R.Narayana,
R.Balaram and R.Purushotham is correct. The allegations
made in para no.4 of the plaint that under Will dated
13.2.2003 executed by Kempanna and registered in the
office of Sub Registrar, Basavanagudi, Bangalore and she
had bequeathed portion of 'A' schedule property on the
8 CT0028_O.S._3082_2010_Judgment_
western side comprising of one shop measuring East to
West 8 ¼ feet, North to South 29 ½ feet in favour of
plaintiff being her grandson is a matter of record. It is
true that Kempamma passed away on 10.6.2005 at
Bangalore. Defendant no.1 submits that plaintiff is not at
all in possession of 'B' schedule property. The transfer
made by defendant no.1 in favour of defendant no.2 vide
sale deed dated 21/4/2010 is valid and lawful. The
defendant no.1 sold property which is in her occupation.
The defendant no.2 is in possession and enjoyment of the
property purchased under registered sale deed dated
21/4/2010. The description of 'B' schedule property is
wrong. There is no cause of action for the suit. The
plaintiff has filed false suit.
Defendant no.1 in his additional written statement
contended that plaintiff has no authority to question the
sale made by defendant no.1 in favour of defendant no.2.
The defendant no.1 being the absolute owner and was in
possession of the same has legally transferred the same
in favour of defendant no.2. The plaintiff is not entitled
for any relief. Hence, defendant no.1 prayed for dismissal
of the suit.
9 CT0028_O.S._3082_2010_Judgment_
5. In brief the contents of the written statement
and additional written statement filed by defendant no.2
are as under:
The suit filed by the defendant no.2 is not
maintainable either in law or on facts. The plaintiff is not
in possession of the 'B' schedule property. The transfer of
property by the first defendant in favour of second
defendant vide sale deed dated 21/4/2010 is lawful and
there is a transfer of marketable right, title and interest.
Plaintiff was never in possession of 'B' schedule property.
The second defendant is in possession of property
conveyed as per sale deed dated 21/4/2010. The second
defendant is entitled to transfer of katha. The description
of 'B' schedule property is incorrect.
Defendant no.2 in his additional written statement
contended that plaintiff does not having any existing
right, title and interest in the 'B' schedule property and
plaintiff cannot seek relief of declaration to declare
execution of sale deed by the first defendant in favour of
second defendant as illegal since such relief is not
available in law. On these grounds, defendant no.2 prays
for dismissal of the suit.
10 CT0028_O.S._3082_2010_Judgment_
6. In brief the written statement filed by
defendant no.3 and 4 are as under:
The suit filed by the plaintiff is not maintainable
either in law or on facts. The averments made in para
no.3 to 5 of the plaint are may be true and plaintiff is put
to strict proof of the same. This defendant has no
knowledge about the Will. This defendant has not
transferred the katha of the suit schedule property in
respect of any contesting defendants. The Will is disputed
by the plaintiff. Hence no action is taken till this Court
gives its finding. On these grounds, defendants 3 and 4
prays for dismissal of the suit.
7. On the basis of the pleadings of the parties, my
predecessor in the office has framed following issues and
additional issues:
(1) Whether plaintiff proves his lawful
possession and enjoyment of the
suit schedule 'B' property as
described in the plaint?
(2) Whether the plaintiff further
proves the alleged interference into
his peaceful possession and
enjoyment of the suit schedule 'B'
property and attempt of its
11 CT0028_O.S._3082_2010_Judgment_
demolition by the defendants as
alleged?
(3) Whether the plaintiff further
proves that defendants 3 and 4 are
making attempts to change the
kata in respect of the suit schedule
'A' property in favour of second
defendant as alleged in the plaint?
(4) Whether the plaintiff is entitled for
the injunctive reliefs as claimed
against defendants?
(5) What decree or order?
ADDITIONAL ISSUES:
(1) Whether plaintiff proves that he is
the absolute owner of 'B' schedule
property as alleged in the plaint?
(2) If so, whether the plaintiff further
proves that there is illegal
conveyance of portion of 'A'
schedule property to the extent of
22.6 feet east to west and north to
south 29.6 feet under registered
sale deed dated 21/4/2010 in
favour of the second defendant
and the said document is illegal
and without any authority?
12 CT0028_O.S._3082_2010_Judgment_
8. In this case plaintiff in order to prove his case,
his father and himself are examined as PWs. 1 and 2
respectively and got marked in all 4 documents which are
marked as Ex.P1 to Ex.P4 and closed his side of
evidence. On the other hand, though defendant no.2 is
examined as DW.1 but he did not appear for cross-
examination and hence his part of evidence is discarded
by this court.
9. Heard the arguments on both sides and
perused the entire records of the case. At the time of
argument, advocate for defendant no.2 filed his written
argument.
10. My findings on the above issues and additional
issues are as under:
Issue No. 1) ............ In the affirmative;
Issue No. 2) ............ In the negative;
Issue No. 3) ............ In the negative;
Issue No. 4) ............ In the negative;
Issue No. 5) ............ As per final order for
the following:
Addl.Issue No. 1) ............ In the negative;
Addl.Issue No. 2) ............ In the negative;
13 CT0028_O.S._3082_2010_Judgment_
11. ISSUE NO.1 AND ADDITIONAL ISSUE NO.1
AND 2: Now I will consider these issues together for the
sake of brevity and convenience as evidence is also
common.
12. It is the case of the plaintiff that he is the
absolute owner of 'B' schedule property by virtue of Will
deed 13/2/2003 executed by Smt.Kempamma and he is
in lawful possession and enjoyment of the 'B' schedule
property.
13. Further it is the case of the plaintiff that under
the Will, Smt. Kempamma is said to have bequeathed in
favour of Smt.Rajeshwari, wife of Late.Narayana, the
portion of 'A' schedule property on the eastern side
comprising of two shops measuring East to West 19 ¼
feet and North to South 29 ½ feet and said Kempamma
passed away at Bangalore on 10/6/2005.
14. Further it is the case of the plaintiff that under
the Will made in his favour, the portion of 'A' schedule
property on the western side now belongs to plaintiff and
he is in possession and enjoyment of the same. Further it
14 CT0028_O.S._3082_2010_Judgment_
is the case of the plaintiff that in the portion of 'A'
schedule property said to have been bequeathed in
favour of first defendant herein the two shops therein and
since from the time of Kempamma were let out to one
Krishnappa who is running a Wine Store therein by name
Shantala Wines and it has not became known that as per
bequeath made in the Will dated 13/2/2003 the portion
of 'A' schedule property left to Rajeshwari the first
defendant is shown as East to West 19 ¼ feet and North
to South 29 ½ feet and first defendant by showing the
common passage in the eastern portion of 'A' schedule
property as the boundary of the property fallen to her an
extent of 2 feet 6 inches has executed deed of sale in
respect of her portion of the property in favour of second
defendant vide sale deed dated 21/4/2010 and first
defendant could not have conveyed portion of her
property to the extent of 22. 6 feet on the eastern side of
'A' schedule property. Now second defendant is trying to
interfere with the plaintiff's possession and enjoyment of
'B' schedule property and seeking to demolish wall of the
western side of the 'B' schedule property so as to illegally
occupy portion of the same.
15 CT0028_O.S._3082_2010_Judgment_
15. In this case defendant no.1 and 2 appeared
through their counsel and filed separate written
statement denying the case of the plaintiff. Defendant
no.1 in her written statement contended that plaintiff is
not at all in possession of 'B' schedule property and
transfer made by defendant no.1 in favour of defendant
no.2 vide sale deed dated 21/4/2010 is valid and lawful
and defendant no.1 sold property which she is in her
occupation. The defendant no.2 is in possession and
enjoyment of the property purchased under registered
sale deed dated 21/4/2010. The description of the 'B'
schedule property is wrong.
16. Defendant no.2 filed his written statement
contending that the plaintiff was never in possession of
'B' schedule property. The second defendant is in
possession of the property conveyed as per sale deed
dated 21/4/2010. The defendant has filed false suit.
17. In this case, the father of the plaintiff
examined himself as PW.1. He filed affidavit evidence in
lieu of his examination in chief. He produced in all 4
documents which are marked as Ex.P1 to Ex.P4. In the
cross-examination, he admitted that he is not in
16 CT0028_O.S._3082_2010_Judgment_
possession of 'A' schedule property. He admitted that the
measurement mentioned in 'B' schedule property is the
same measurement mentioned in Ex.P4. He admitted
that in Ex.D4 towards eastern side there are two shops of
Rajeshwari and he has not mentioned proper boundaries
to the 'B' schedule property. He admitted that towards
northern side of 'A' schedule property he has not
mentioned the property of Rajeshwari. He admitted that
Rajeshwari has sold her property in favor of defendant
no.2.
18. In this case, plaintiff after attaining majority,
himself examined as PW.2. He filed affidavit evidence in
lieu of his examination in chief. In his examination in
chief, he reiterated the plaint averments. In the cross-
examination he admitted that 'A' schedule property
originally belong to his grandmother Kempamma. He
further admitted that 'B' schedule property which is the
portion of 'A' schedule property has given to him by his
grandmother by way of Will. He further admitted that
except 'B' schedule property, his grandmother has not
given other portion of 'A' schedule property. He further
admitted that defendant no.1 has not sold 'B' schedule
17 CT0028_O.S._3082_2010_Judgment_
property or portion of 'B' schedule property in favour of
second defendant. He further admitted that except 'B'
schedule property, he has no other right over the
remaining portion of 'A' schedule property.
19. In this case, defendant no.2 partly examined
himself as DW.1, but he did not appear for cross-
examination. Hence the part of evidence of DW.1 was
discarded by this court by order dated 31/1/2007 since
he failed to appear before the court for cross-
examination. Hence, in this case absolutely there is no
evidence for defendants.
20. I have perused entire evidence on record. As
per issue no.1 and additional issue no.1 and 2 heavy
burden lies on the plaintiff to prove the said issues. In
this case, plaintiff claiming his ownership over the 'B'
schedule property on the basis of Will executed by his
grandmother Kempamma. In this case, plaintiff has
produced certified copy of the Will dated 13/2/2013
which is marked as Ex.P4. In this case, plaintiff is
claiming his ownership on the basis of this Ex.P4. But
plaintiff has not produced original Will before the court.
Further, plaintiff has not examined anyone of the
18 CT0028_O.S._3082_2010_Judgment_
attesting witness to prove the execution of Will as
required under Section 68 of the Indian Evidence Act
and under Section 63 of Indian Succession Act. In this
case eventhough there is no serious dispute with regard
to the ownership of plaintiff over 'B' schedule property,
but when plaintiff is claiming his ownership over the 'B'
schedule property on the basis of Will, then it is the duty
of the plaintiff to prove the Will in accordance with law.
The plaintiff has to examine atleast one of the attesting
witness to the said Will to prove the execution of the Will.
In this case, plaintiff has not produced original Will
before the court and has not chosen to examine anyone
of the attesting witnesses to the Will as required under
provisions of law. It is pertinent to note that, it is held in
a decision reported in ILR 2008 (KAR) 1840 that
document is required by law to be attested, it shall not be
used as evidence until one attesting witness atleast has
been called for the purpose of proving its execution if
there be an attesting witness alive and subject to the
process of court and capable of giving evidence. Further,
in the said decision it is also held that in so far as proof
of Will is concerned even registration and non-denial of
19 CT0028_O.S._3082_2010_Judgment_
execution would not prove the Will ipsofacto and it has to
be proved by examining the attesting witness. If attesting
witness are not alive, then Section 67 of the Indian
Evidence Act is attracted. It is pertinent to note that, in
this case attesting witness to the Will is not examined. As
per Section 68 of the Indian Evidence Act the Will is
required to be attested and atleast one of the attesting
witness has to be examined for prove its execution and if
attesting witness are not alive, then Section 67 of the
Indian Evidence Act is attracted. In this case, defendant
no.1 and 2 have not seriously denied Will i.e, Ex.P4
executed by Kempamma. It is important to note that even
though defendants 1 and 2 have not seriously denied the
execution of Will but under the provisons of Section 68 of
Indian Evidence Act and under Section 63 of the Indian
Succession Act, it is for the propounder of Will to prove
the Will in accordance with law by examining atleast one
of the attesting witness to the Will. In this case
admittedly plaintiff has not examined any one of the
attesting witness to the Will.
21. It is also important to note that, from the
above referred decision it is also much clear that in so far
20 CT0028_O.S._3082_2010_Judgment_
as proof of Will is concerned, even registration and non-
denial of execution would not prove the Will ipsofacto.
Even if said Will is registered under the provisions of
Indian Registration Act, whether execution of the Will is
admitted or denied, it is necessary to call for attesting
witness in proof of execution of the said Will. Under no
circumstances, proof of execution of Will is dispensed
with. Hence it has to be proved by examining attesting
witnesses. If attesting witnesses are not alive, then
Section 67 of the Indian Evidence Act is attracted. In this
case admittedly plaintiff has not examined any one of the
attesting witness to prove the Will. Even though Will is
registered and defendant no.1 and 2 have not seriously
denied the due execution of Will but it would not prove
the Will ipsofacto unless atleast one of the attesting
witness is examined to prove the execution and
attestation of the Will. As already stated in this case
plaintiff has not examined any one of the attesting
witness to prove the execution of Will. Hence plaintiff has
not properly proved due execution of Will in accordance
with law. Hence, plaintiff has failed to prove his
ownership over the 'B' schedule property.
21 CT0028_O.S._3082_2010_Judgment_
22. It is an admitted fact that originally
Kempamma was the owner of property bearing no.8,
Bhuvaneshwari Nagar, Mariyappanapalya, Bangalore
measuring East to West 34 feet and North to South 29.6
feet. In this case defendants have not denied that
Kempamma was executed Will dated 13/2/2003 in
respect of 'B' schedule property in favour of plaintiff who
is her grandson. Hence, evidence on record clearly shows
that plaintiff is in possession of the 'B' schedule property.
23. In this case plaintiff claiming that he is the
absolute owner of 'B' schedule property on the basis of
Will, but plaintiff has not proved the said Will in
accordance with law. It is also important to note that,
PW.1 who is father of plaintiff in his cross-examination
clearly admitted that he has not mentioned proper
boundaries to the 'B' schedule property. It shows that
plaintiff has not furnished proper boundaries to the 'B'
schedule property. Under such circumstances, it cannot
be said that plaintiff is the absolute owner of 'B' schedule
property since admittedly plaintiff has not mentioned
proper boundaries to the 'B' schedule property.
22 CT0028_O.S._3082_2010_Judgment_
24. PW.1 in his cross-examination admitted that
he is not in possession of any portion of 'A' schedule
property. He further admitted that in Ex.P4, towards
eastern side, there are two shops of Rajeshwari and has
not mentioned the property of Rajeshwari in the plaint. It
is pertinent to note that, the said Rajeshwari is none
other than the defendant no.1 in this suit. The evidence
on record clearly shows that towards eastern side of 'B'
schedule property, there is a property of defendant no.1.
But, in the plaint, admittedly boundaries are not properly
mentioned. Under such circumstances, it cannot be said
that plaintiff is the absolute owner of 'B' schedule
property. PW.1 admitted that Rajeshwari has sold her
property in favour of defendant no.2. PW.2 also in his
cross-examination admitted that 'B' schedule property
which is portion of 'A' schedule property has given to him
by his grandmother by way of Will and except 'B'
schedule property, his grandmother has not given other
portion of 'A' schedule property. He admitted that
defendant no.1 has not sold 'B' schedule property or
portion of 'B' schedule property in favour of second
defendant and except 'B' schedule property, he has no
23 CT0028_O.S._3082_2010_Judgment_
other right over remaining portion of 'A' schedule
property. From the evidence of PW.2, it is much clear
that 'B' schedule property is belongs to plaintiff even
though he has wrongly mentioned boundaries to the 'B'
schedule property and except 'B' schedule property, he
has no right over remaining portion of 'A' schedule
property. Further evidence on record, clearly shows that
Kempamma has also bequeathed the property by way of
Will in favour of defendant no.1 and defendant no.1 has
sold her property in favour of defendant no.2 under
registered sale deed dated 21/4/2010 and by virtue of
the said sale deed, defendant no.2 became the owner of
the said property and she is in possession and enjoyment
of the said property.
25. The evidence on record clearly shows that
defendant no.1 being the absolute owner and was in
possession of the same, has legally transferred the
property which was in her occupation in favour of
defendant no.2 under registered sale deed dated
21/4/2010 and admittedly plaintiff has no right over the
said property except 'B' schedule property. When plaintiff
does not have any right, title and interest in the
24 CT0028_O.S._3082_2010_Judgment_
remaining portion of 'A' schedule property as admitted by
plaintiff he cannot maintain the suit against the
defendants. Even for the sake of argument, if it is
admitted that 2.6 feet as alleged by the plaintiff belongs
to him, there should be an existing right of the plaintiff in
the remaining portion of 'B' schedule property.
Admittedly, except 'B' schedule property, plaintiff does
not have any right over remaining portion of 'A' schedule
property. When plaintiff himself admits that he does not
have any right, title and interest, he cannot compel to
declare a right in the property which is not in existence.
26. In this case there is no pleading of
easementary right in any manner. The property of the
plaintiff is only 'B' schedule property. Even in 'B'
schedule property, there is no mention of any common
passage. The Will i.e., Ex.P4 is not challenged by any of
the parties. But, when plaintiff has claiming hi ownership
on the basis of the Will, he has to prove the execution of
Will in accordance with law. But, he failed to prove due
execution of Will in accordance with law. However, in this
case, defendants have not disputed the possession of
plaintiff over 'B' schedule property even though
25 CT0028_O.S._3082_2010_Judgment_
boundaries of 'B' schedule property is wrongly
mentioned.
27. PW.1 in his cross-examination clearly admitted
that plaintiff is not in possession of any portion of 'A'
schedule property. It is also admitted that measurement
shown in 'B' schedule property is the same as in Ex.P4.
PW.2 also in his cross-examination has admitted that
defendant no.1 has not sold any portion of 'B' schedule
property to defendant no.2. Further, it is also admitted
that except 'B' schedule property plaintiff does not have
any right over remaining portion of 'A' schedule property.
28. It is also important to note that, Ex.P4 does
not give any right in any other portion of 'A' schedule
property to the plaintiff except 'B' schedule property.
However in this case plaintiff has proved possession over
'B' schedule property, but he failed to prove his
ownership over the 'B' schedule property in accordance
with law. Further plaintiff also failed to prove that there
is an illegal conveyance of portion of 'A' schedule property
to the extent of 22.6 feet East to West and 29.6 feet North
to South under sale deed dated 21/4/2010 in favour of
second defendant. The evidence on record clearly shows
26 CT0028_O.S._3082_2010_Judgment_
that defendant no.1 has acquired property by virtue of
Will executed by Kempamma and she was in possession
of the said property and she has sold the said property in
favour of defendant no.2 under registered sale deed dated
21/4/2010. The plaintiff has no right to question made
by defendant no.1 in favour of defendant no.2. The
transfer made by defendant no.1 in favour of defendant
no.2 is legal and valid and plaintiff has no right over the
said property. Plaintiff has proved issue no.1 and failed to
prove additional issues 1 and 2. Accordingly, I answer
issue no.1 in the affirmative and additional issue no.1
and 2 in the negative.
29. ISSUE NO.2: Plaintiff contended that
defendant no.2 is causing interference in her peaceful
possession and enjoyment over the suit schedule
property. While answering additional issue no.1, it is held
that plaintiff has failed to prove his ownership over the 'B'
schedule property. Further, while answering additional
issue no.2, it is held that plaintiff has failed to prove that
there is illegal conveyance of portion of 'A' schedule
property to the extent of 22.6 feet East to West and 29.6
feet North to South under registered sale deed dated
27 CT0028_O.S._3082_2010_Judgment_
21/4/2010. The evidence on record clearly shows that
by virtue of the Will executed by Kempamma defendant
no.1 became the owner of the property in question and
she has sold the same in favour of defendant no.2 under
registered sale deed dated 21/4/2010. The said sale deed
is legal and valid and defendant no.2 is in possession of
the property purchased by him from defendant no.1. The
plaintiff is having only right over 'B' schedule property
and he has no over remaining portion of 'A' schedule
property. Now plaintiff is claiming right over remaining
portion of 'A' schedule property. Admittedly, plaintiff has
no right over 'A' schedule property except 'B' schedule
property. Under such circumstances, it cannot be said
that defendant no.2 is trying to interfere with the
plaintiff's peaceful possession and enjoyment over the 'B'
schedule property. Plaintiff failed to prove issue no.2.
Accordingly, I answer issue no.2 in the negative.
30. ISSUE NO.3: Plaintiff contended that now
defendants 3 and 4 are making attempts to change katha
in respect of 'A' schedule property in favour of second
defendant. It is pertinent to note that, defendant no.3 is
the Statutory body and defendant no.4 is the Officer of
28 CT0028_O.S._3082_2010_Judgment_
defendant no.3. The plaintiff has no right to seek relief of
declaration against defendant no.3 and 4. The plaintiff is
not the owner 'A' schedule property. The evidence on
record clearly shows that defendant no.2 is the owner of
portion of suit schedule property and he is entitled to
katha on the basis of registered sale deed dated
21/4/2010. The change of katha is the official act and
statutory powers conferred on BBMP and change of
katha is also pertain to provisions covered under KMC
Act. Further, in this case there is no cogent evidence on
record to show that defendants 3 and 4 are illegally
making change of katha in respect of 'A' schedule
property in favour of second defendant. Plaintiff failed to
prove issue No.3. Accordingly, I answer issue no.3 in the
negative.
31. ISSUE NO.4: In this case plaintiff sought for
the relief of declaration that he is the owner of 'B'
schedule property and also sought for the relief of
declaration that act of defendant no.1 in conveying the
portion of 'A' schedule property to an extent of 22.6 feet
East to West and 29.6 feet towards North to South under
registered sale deed dated 21/4/2010 in favour of second
29 CT0028_O.S._3082_2010_Judgment_
defendant is illegal and also sought for permanent
injunction against defendant no.2 and also sought for the
relief of permanent injunction against defendant no.3
and 4 restraining them from making katha in favour of
second defendant in respect of eastern portion of 'A'
schedule property.
32. While answering additional issue no.1, plaintiff
has failed to prove their ownership over 'B' schedule
property in accordance with law. Plaintiff also failed to
prove additional issue no.2 that there is an illegal
conveyance of portion of 'A' schedule property to an
extent of 22.6 feet East to West and 29.6 feet North to
South under registered sale deed dated 21.4.2010 in
favour of second defendant. In this case plaintiff also
failed to prove alleged interference by defendant no.2.
Further, plaintiff also failed to prove that defendant no.3
and 4 are illegally making to change katha of portion of
'A' schedule property in favour of second defendant.
33. In this case plaintiff has failed to prove his
ownership over 'B' schedule property. Therefore, he is not
entitled for the relief of declaration as sought for. Further
in this case plaintiff has failed to prove that defendant
30 CT0028_O.S._3082_2010_Judgment_
no.1 has conveyed portion of 'A' schedule property to an
extent of 22.6 feet East to West and 29.6 feet towards
North to South under registered sale deed dated
21.4.2010 in favour of second defendant. The evidence on
record clearly shows that defendant no.1 has acquired
the said property by virtue of Will executed by
Kempamma and she has sold the same in favour of
defendant no.2 under registered sale deed dated
21.4.2010 and by virtue of the said sale deed, defendant
no.2 became owner in possession and enjoyment of the
said property. The sale transaction took place between
defendant no.1 and 2 is legal and valid. Therefore,
plaintiff is not entitled for the relief of declaration as
sought for in respect of the sale deed dated 21.4.2010
executed by first defendant in favour of second
defendant.
34. In this case, plaintiff has sought for permanent
injunction against defendant no.2 restraining him from
interfering with his peaceful possession and enjoyment
over 'B' schedule property.
35. In this case plaintiff has failed to prove alleged
interference against defendant no.2. The defendant no.2
31 CT0028_O.S._3082_2010_Judgment_
is in possession and enjoyment of the property purchased
by him from defendant no.1. There is no cogent evidence
on record to show that defendant no.2 has caused
interference over the property of plaintiff. Hence plaintiff
is not entitled for relief of permanent injunction as
sought for against defendant no.2.
36. In this case plaintiff sought for the relief of
permanent injunction restraining the defendant no.3 and
4 from making katha in favour of second defendant in
respect of eastern portion of 'A' schedule property. The
plaintiff has failed to prove that he is the owner of
eastern portion of 'A' schedule property. The evidence on
record clearly shows that defendant no.2 has purchased
the above said property from defendant no.1 under
registered sale deed dated 21/4/2010. As per said sale
deed, defendant no.2 is legally entitled katha in respect of
her property from BBMP as per provisions of KMC Act.
Admittedly, plaintiff has no right over 'A' schedule
property except 'B' schedule property. Hence, plaintiff is
not entitled for the relief of permanent injunction as
sought for against defendant no.3 and 4. In this case
32 CT0028_O.S._3082_2010_Judgment_
plaintiff is not entitled for any reliefs. Accordingly, I
answer issue no.4 in the negative.
37. ISSUE NO.5: From my above discussions
and reasoning, the suit of the plaintiff is liable to be
dismissed. In the result, I pass the following:
The suit of the plaintiff is hereby
dismissed.
Under the facts and circumstances of
the case, there is no order as to costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 11th day of October 2017.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 K.Purushotham
PW.2 P.Shreyas
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 Manjunath.K. - Discarded 33 CT0028_O.S._3082_2010_Judgment_
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Certified copy of the sale deed Ex.P 2 SSLC Transfer certificate Ex.P 3 Copy of Sale deed Ex.P 4 Copy of the Will dated 13/2/2003
4. List of the documents marked for the defendants:
NIL.
[S.H. HOSAGOUDAR] XXVII Additional City Civil Judge, BANGALORE.
34 CT0028_O.S._3082_2010_Judgment_ 11/10/2017 Plaintiff-BS D1-ANK D2-MSH For Judgement...
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is hereby dismissed.
35 CT0028_O.S._3082_2010_Judgment_
Under the facts and
circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[S.H.HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
36 CT0028_O.S._3082_2010_Judgment_ 37 CT0028_O.S._3082_2010_Judgment_ fdfdf