Bangalore District Court
Smt. Habeebunnissa vs Modi Shefi S/O. Late. Modi on 22 November, 2019
1
O .S.No.7184/2000
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY: (CCH-56)
: Present :
SRI. K. NARAYANA PRASAD, B.Sc., LL.M.,
LV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
Dated this the 22nd day of November, 2019
O.S. No.7184/2000
PLAINTIFF : Smt. Habeebunnissa,
W/o. Mohammed Nazeeruddin
Ahmed, Aged about 50 years,
No.203, II Block, Black Palli,
Bengaluru Civil Area,
Bengaluru. Represented by
General Power of Attorney
holder Syed Abdul Rehaman,
S/o. Late. Syed Jahangeer,
Aged about 52 years,
No.10/69, Shampura Main
Road, Kadugondanahalli,
Bengaluru-45
(By Sri G.P.R., Adv.)
- VS-
DEFENDANTS : 1. Modi Shefi S/o. Late. Modi
Abdul Khuddus, Major,
Residing at No.13, Ashoka
Road, St. Thomas Town,
Bengaluru-560 084
2. Syed Khaleel, S/o. Late.
Azeez, Major, Modi Road,
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O .S.No.7184/2000
Devarajeevanahalli, Bengaluru-
560 045
(By Sri N.K.G., Advocate.)
Date of Institution of the suit : 24-10-2000
Nature of the Suit : Declaration and
Injunction
Date of commencement of recording
of evidence : 24-05-2004
Date on which the Judgment was
pronounced : 22-11-2019
Year/s Month/s Day/s
19 - 28
JU DG M E NT
This is a suit for Declaration and Injunction.
2. The facts in brief of the case of the plaintiff is
that, she is the absolute owner and in possession of
suit schedule property/site bearing Nos.13 & 20 in
T.P.No.735, present T.P.No.738/1 situated at
gramathana of Devarajeevanahalli, Bengaluru North
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O .S.No.7184/2000
Taluk. It is the case of the plaintiff that, she has
acquired the suit schedule property from Wazeer Khan
under registered sale deed Dated: 02-05-1974 for
valuable consideration. Her vendor Wazeer Khan has
purchased the property from its original owner
Muninanjappa and others under registered sale deed
Dated; 19-03-1974. The said property was originally
part of land situated in old Sy.No.104 and resurvey
No.65 of Devarajeevanahalli which is thoti service inam
land. The said survey numbers are included in
Gramathana of Devarajeevanahalli in the year 1953.
The said purchase was regularized following the re-
grant of property in favour of vendors of plaintiff. The
plaintiff has laid foundation to construct dwelling
house in the property and she could not put up super
structure on the existing foundation. During last week
the plaintiff has collected bricks and other materials
for putting up construction. On 19-10-2000 the
defendants came near the property and objected for
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O .S.No.7184/2000
construction and they have asserted that, suit
schedule property belongs to them. The defendants are
adopted high handed methods to enter into the
schedule property. Hence, the present suit is filed for
Declaration to declare that the plaintiff is the absolute
owner of the suit schedule property and consequential
relief of injunction to restrain the defendants from
invading or in any way interfering with the plaintiff's
peaceful possession of suit property.
3. The 1st defendant has filed written statement
and denied the ownership of plaintiff. According to the
defendants Devarajeevanahalli is Inam Village. The
father of defendant No.1 by name Modi Abdul Khuddus
has purchased the village from its previous Inamdar
under the registered Sale Deed Dated; 25-04-1927. The
property purchased by the said person comprises of
large extent of land including portions of gramathana
and also land in Sy. No.43 of the Village. The father of
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O .S.No.7184/2000
1st defendant after purchase he became the inamdar of
said village. The said village vested in the government
after Inam Abolition Act. The said Inamdar has applied
before Special Deputy Commissioner for Abolition of
name under the provisions of the Act and the Special
Deputy Commissioner after holding an enquiry and
after going into the history and nature of inam has
passed an order on 22-05-1964 in case No.4858/1959
registering the father of 1st defendant is occupant in
respect of lands, which was in his peaceful possession.
Hence, by operation of law the father of 1 st defendant
has become owner of the property in gramathana of
village. An endorsement by Special Deputy
Commissioner was received and father of 1st defendant
died on 28-11-1962 leaving behind the second wife and
children from the first wife and children of second wife.
4. The land situated in Sy.No.43 is a vacant land
and a pit is also situated in gramathana, a portion
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O .S.No.7184/2000
which was in possession and enjoyment of Modi Abdul
Khudus during his life time. After the death of his
father the 1st defendant got the property by virtue of
release deed dated 02-11-1964, wherein the Legal heirs
of the deceased Abdul Kuddus have released their
rights in favour of defendant No.1. The 1st defendant
caused some improvements in the said property and
filled the pit with mud and debris. When the matter
was like that, one N.Muninanjappa @ Undukali and
others tried to interfere with the possession of
defendant No.1. Hence, the defendant No.1 filed a suit
against the Muninanjappa and others in O S
No.879/1973, which is subsequently numbered as O
S No.545/1080. In the meanwhile one Syed Abdul
Rehaman has also filed suit against 1 st defendant for
Permanent Injunction, one Wazeer Khan has also filed
a suit, similarly Syed Hussain has also filed suit for
injunction. All these suits are tried by a single Court.
The 1st defendant has prayed for relief of Mandatory
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O .S.No.7184/2000
Injunction to demolish temporary shed put up in the
property of defendant No.1 by Muninanjappa. The said
suit filed by the defendant No.1 in O S No.545/1980
came to decreed and other suits filed by various
persons in O S No.708 to O.S No.710 came to be
dismissed. The said persons have filed RFA against the
order passed by the City Civil Court and RFA also came
to the dismissed. Muninanjappa and others also
approached the Hon'ble Supreme Court by filing
Special Leave Petition. The said Special Leave Petition
is also dismissed in view of the same. The defendants
states that, the present suit is filed by the predecessors
of the plaintiff through Muninanjappa. Hence, it is hit
by Section 11 of CPC. Res-Judicata. The 1 st defendant
has also stated that, he is in possession and enjoyment
of the suit property and there is no property of plaintiff
in any manner. Sy.No.104 and 65 are not at all in
existence and hence, prays for dismissal of the suit.
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O .S.No.7184/2000
5. In view of the above rival contentions the
following issues are framed:-
IS SU E S
1.Does the plaintiff proves that he is an absolute owner of the suit schedule property ?
2. Is the plaintiff entitled for permanent injunction as prayed for ?
3. Is the present suit barred by principles of res-judicata by virtue of the decision in O S 545/1980, as pleaded in para-14 of the written-statement ?
4. What order ?
6. The GPA holder of plaintiff got himself examined as PW-1 and produced as many as 6 documents, which are marked at Ex.P.1 to Ex.P.6. The 1st defendant got examined as DW-1 and he has produced 59 documents, which are marked at Ex.D.1 to Ex.D.59.
7. The plaintiff and her counsel remained absent and not addressed any arguments even after granting 9 O .S.No.7184/2000 sufficient time. Heard the arguments of learned counsel for defendant No.1. Other defendants have also not addressed any arguments.
8. After going through the records the issues were answered as following..
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative,
Issue No.4 : As per final order for the
following
R E A SON S
9. Issue No.1 :- The plaintiff claims that she has
purchased the property from one Wazeer Khan vide sale deed dated: 02-05-1974 and she further claims that, Sri Wazeer Khan purchased the same from Muninanjappa and others under registered Sale Deed dated: 19-03-1974 and after the purchase she has laid foundation for construction of a building, but the defendants are interfering with her possession and obstructed to put up a building. Hence, she prays for 10 O .S.No.7184/2000 declaration of her title and also for consequential injunction.
10. The cases of respective parties are already described in the above paragraphs. The suit property is described as site Nos. 13 and 20 situated in Ward No.93 of Devarajeevanahalli Village measuring 60 feet x 25 feet. According to the plaintiff, originally this property was situated in Sy.No.104 and resurvey No.65 and it is a Thoti Inam Land. According to the plaintiff the suit property belongs to the ancestors of Muninanjappa @ Gundukali. The plaintiff claims that the property in question inherited by Muninanjappa and Muninanjappa had valid title to convey the the same in favour of Wazeer Khan etc.,
11. On the other hand, the defendant No.1 takes contention that, entire village of Devarajeevanahalli was purchased by his father Modi Abdul Khuddus from its erstwhile Inamdar under sale deed of the year 1927. 11
O .S.No.7184/2000 After purchase of the property, he has sold number of properties to various persons. The present suit property is the property situated adjacent to Sy.No.43 and it is a gramathana property. The defendant also takes contention that, the father of defendant No.1 was running a brick factory and mud were excavated from the said land and there was a huge pit formed. After the death of father of defendant No.1, defendant No.1 filled the said pit with debris and mud and effected development. At this stage, Muninanjappa and others have tried to interfere with possession of defendant No.1 and he has filed suit, which was decreed and confirmed through out, up to Hon'ble Supreme Court.
12. The plaintiff has reiterated the plaint averments in her evidence through her GPA. Similarly, the 1st defendant has reiterated the written-statement averments in his evidence. The plaintiff has produced Ex.P-1 Power of Attorney executed by plaintiff executed 12 O .S.No.7184/2000 by the plaintiff, Ex.P-2 is the copy of Sale Deed dated 02-05-1974 executed by Wazeer Khan in her favour. Ex.P-3 is Tax Demand Register extract showing the name of plaintiff stating that, plaintiff is the owner of property No.738/1. Ex.P-4 is Tax paid receipt dated:
04-6-1991. Ex.P-5 acknowledgement issued by the Bengaluru City Corporation Dated: 11-2-1998 and Ex.P-6 is the certified copy of order Dated: 18-7-1995 passed by the Tahasildar, Bengaluru North in case No/. HOA CR 86/90-91.
13. The defendant has produced as many as 59 documents. They are as follows;
Ex.D-1 - Certified copy of decree in O S No.1120/1974 Dated: 13-01-1978 Ex.D-2 - Certified copy of Order sheet in OS No.545/1980 (Old No.879/1973) Ex.D-3 - Certified copy of the plaint in OS No.545/1980 (Old No.879/1973) Ex.D-4 - Certified copy of the written statement filed in O S No.879/1973.
Ex.D-5 to Ex.D-14 - Certified copies of the depositions 13 O .S.No.7184/2000 of Pws-1 to 5 and DWs-1 to 5 in OS No.545/1980 Ex.D-15 - Certified copy of the Judgment in OS 545/1980 Dated: 24-07-1988.
Ex.D-16 - Certified copy of the Judgment in RFA 659/1998 dated: 29-11-1999 and decree dated: 24-07- 1998 in OS No.545/1980.
Ex.D-17 - Certified copy of the order dated:
10-07-2000 in SLP (Civil) 2796/2000 Ex.D-18 - Certified copy of the approved plan.
Ex.D-19 - Certified copy of the registered sale deed dated: 25-04-1927 executed by Modi Abdul Khuddus.
Ex.D-20 - Certified copy of the order passed by Addl.Spl. DC for Inam Abolition, Bengaluru Dated:
22-8-1964 in Case No.48/1958-59 Ex.D-21 - Certified copy of registered sale deed dated: 24-05-1961.
Ex.D-22 - Certified copy of registered lease deed dated: 21-11-1964.
Ex.D-23 to D-26 Certified copies of tax paid receipts Dated: 18-09-1973 Ex.D-27 & D-28-: Khatha extract of property No. TP No.736 of Devarajeevanahalli. Ex.D-29 & D-30 - Certified copies of plans relating to suit property.
Ex.D-31 - certified copy of Village map 14 O .S.No.7184/2000 Ex.D-32 & Ex.D-33 - Certified copies of the notice dated: 17-7-1971 Ex.D-34 - Endorsement dated 18-09-1973 issued by Town Panchayath.
Ex.D-35 - Certified copy of registered sale deed dated: 10-06-1960.
Ex.D-36 & D-37:: Certified copies of tax paid receipts dated: 25-08-1977 Ex.D-38 - Certified copy of registered partition deed Dated: 05-06-1950.
Ex.D-39 - Certified copy of quit rent register extract. Ex.D-40 - Certified copy of village map of Devarajeevanahalli.
Ex.D-41 to D-43 - Certified copies of registered sale deeds dated: 25-02-1963, 21-02-1973 and 2-2-1963 respectively.
Ex.D-44 - Certified copy of extract of register No.8 pertaining to Sy.Nos. 39, 40, 33 and 7of Devarajeevanahalli.
Ex.D-45 to D-48 :: Encumbrance Certificates for the periods 2-11-1964 to 11-9-1975, 1-4-1975 to 18-2-1999, 1-4-1964 to 31-3-1989 and 1-4-1999 to 14-5-2001 respectively in respect of Sy.No.43 Ex.D-49 - Certified copy of endorsement dated: 21-8-1972 issued by ADLR, Bengaluru. 15
O .S.No.7184/2000 Ex.D-50 - Certified copy of Order dated : 8-2-1982 passed in case No. INA 984/1979-80 and INA No.2192/1979-80 by the Land Tribunal Bengaluru. Ex.D-51 - Certified copy of report given to SHO Kadugondanahalli Police by Modi Ziaulla. Ex.D-52 to D-58 - Photographs of suit schedule property.
Ex.D-59 - C.D. Copy.
Ex.D-52 to D-59 are confronted to the plaintiff in OS No.7085/2000, but the same is referred in this case also.
Even though Ex.D-47 to D-59 are noted as marked in this case, only xerox copies are produced in this case. It can be gathered after going through records on OS 7085/2000 that, the documents referred in Ex.D-47 to D-59 herein are produced in OS 7085/2000. It is relevant to mention here that, the defendants in both suits are one and the same, but the plaintiffs are different. Hence, it appears that, only xerox copies of Ex.D-47 to D-59 are placed in this case. Even at the time of transfer of this case from CCH-VI, an endorsement is made on the index 16 O .S.No.7184/2000 sheet by CCH-VI officials about the non availability of Ex.D-47 to 59. Hence the xerox copies of Ex D47-59 are available in the file. However original photos and CD documents and certified copies other documents related to Ex D 47-59 are intact in O.S 7085/2000.
14. On going through the previous litigations between parties it appears to this court that, the present defendant No.1 has filed a suit against the vendors of plaintiff for the relief of permanent injunction, which is numbered as OS 545/1980. The said suit is filed for the relief of permanent injunction against Muninanjappa and others. Similarly, the purchasers of some of the properties including Mr. Wazeer Khan, who are the purchasers from Muninanjappa have also filed suits against defendants No.1 and others in OS No.708, 709 & 710/1980.
15. On going through the records the main contention of the predecessors in title of the plaintiff is 17 O .S.No.7184/2000 that, the Sy.No.43 is nothing to do with the present suit property. It is further the contention of Muninanjappa and others that, the properties, which are occupied by the present defendant No.1 is Sy.No.65-old Sy.No.104 and it is not the Sy.No.43. The said fact is denied by the defendant No.1 through out the proceedings. According to defendant No.1 the pit situated next to Sy.No.43 is the subject matter of the suit, which was the property belong to his father Modi Abdul Khuddus. The said property was re-granted in favour of his father and his father was in possession and after the death of his father the defendant No.1 is in possession. The defendant No.1 further states that, an attempt was made by Muninanjappa by encroaching the property by putting up a small shed. The said property is washed away and it became a vacant property. Initially O S No.545/1980 was filed for the relief of permanent injunction and also for mandatory injunction. In view of the washing away of 18 O .S.No.7184/2000 the shed, the present defendant No.1 has not pressed the relief of mandatory injunction. However, the court has decreed the suit filed by defendant No.1 and dismissed the suit filed by predecessors-in-title and some of the purchasers of the property from Muninanjappa including the vendor of the plaintiff Mr. Wazeer Khan. An order of injunction by way of permanent injunction is decreed against Muninanjappa in OS No.545/1980. The said judgment and decree was confirmed by the Hon'ble High Court and also Supreme Court.
16. The present plaintiff is admittedly purchaser under Wazeer Khan, who in turn purchased from Muninanjappa and others and if Muninanjappa gets right, then only the plaintiff would get right over the property in question. Hence, we have to verify whether the plaintiff has derived valid title or not.
17. According to the plaintiff Sy.No.104-new 19 O .S.No.7184/2000 Sy.No.65 was re-granted in favour of Muninanjappa. In order to show this fact there is absolutely no evidence or documents available before the court. On the other hand, the defendant has produced Ex.D-50, which is order passed by Land Tribunal in INA 984/1979-80, wherein the request of Muninanjappa was turned down by the Tribunal. On going through the Judgment passed in OS No. 545/1980 and Judgment of Hon'ble High Court in RFA No.659/1998 it is seen that, the Courts have given observation about the possession and ownership of the parties. The Hon'ble High Court has also observed that defendant No.1 is in possession of suit property. Muninanjappa and others have failed to show that, the possession of plaintiff is in respect of Sy.No.104 or in Sy.No.65. The documents, which are produced in OS 545/1980 are also produced before this court in the form of certified copies.
18. It is observed in the previous proceedings and 20 O .S.No.7184/2000 also in the Judgment of Hon'ble High Court and in RFA 659/1998 that, final quit rent register extract, which is produced before this court as Ex.D-39 shows that, Sy.No.104 comprises a total extent of 5 acres 27 guntas only. The said land was given as thoti inam for thoti services in Devarajeevanahalli. The predecessors in title of the plaintiff Muninanjappa and others have claimed ownership over 10 acres 08 guntas land under thoti inam. Ex.D-39 clearly shows that, the claim of the plaintiff's predecessors in title is imaginary. Hence, the question of plaintiff's predecessors in title becoming owners of 10 acres 08 guntas in Sy.No.104 does not arise. In addition to this, village map Ex.D-40 produced before this court clearly shows that there are no survey numbers viz., 104 and 65 in Devarajeevanahalli. The plaintiff has not produced any documents to show that, suit property was granted in favour of her predecessors in title namely Muninanjappa by any authorities under Inam Abolition 21 O .S.No.7184/2000 Act. The document Ex.D-50 clearly shows that, occupancy rights claimed by Muninanjappa was rejected. This document shows that, Muninanjappa had applied for grant of occupancy rights in respect of suit property along with other properties before the Land Tribunal and said application was dismissed. Hence, pleadings of plaintiff before this court that, there was a re-grant of land etc., in favour of her vendor's vendor is without any merits.
19. There is a categorical observation in the Judgment Ex.D-15 and Judgment of Hon'ble High Court in Ex.D-16 that, plaintiff's predecessors in title are not in possession of suit schedule property. The Hon'ble Supreme Court has also confirmed the same as per Ex.D-17, wherein the Special Leave Petition in 2796/2000 came to be dismissed by the Hon'ble Supreme Court on 10-07-2000. Hence, one thing is very clear that, the vendor's vendor of plaintiff were not 22 O .S.No.7184/2000 in possession of suit property. On going through the deposition of both parties the subject matter is situated on the properties filled after the pit with mud and debris. The said place is claimed to be the property of Muninanjappa and the present defendant No.1 claims that it is the property of his father. Ultimately, the Judgments Ex.D-15 to D-17 makes it very clear that, the said properties i.e., suit property is the property of father of defendant No.1 Modi Abdul Khuddus. Even though the suit decided by Hon'ble Courts in earlier occasion are related to injunction suits, but there is a categorical observation that, the father of defendant No.1 is the owner of properties. The documents such as grant certificate, occupancy certificate, tax paid receipts, map, other revenue documents are discussed in detail in the said proceedings. In addition to this, the main dispute in this case is about the identification of property. The plaintiff claims that, the property in question is situated in Sy.No.104 & 65, but the 23 O .S.No.7184/2000 defendant No.1 claims that it is gramathana site situated next to Sy.No.43. The contention of first defendant herein has been confirmed under Ex.D-15 to D-17 and hence, it is not open for this court to again take another view in the matter.
20. The plaintiff has produced number of documents such as, tax demand register extract, sale deed, tax paid receipts and also regularisation order. The order passed under Ex.P-6 regularisation order dated: 18-07-1995 only regularises the sale deed. It is relevant to mention here that, in order to regularise the sale deed, the person who has executed sale deed is required to convey the valid title. When Muninanjappa himself has no title, the question of conveying her title in favour of plaintiff does not arise. Hence, much cannot be attributed to Ex.P-6. Other documents are formal documents, which are tax demand register extract and tax pad receipts. These documents would 24 O .S.No.7184/2000 loose significance in view of judgments passed in Ex.D- 15 to D-17 by the competent courts. The revenue documents never convey the title to the parties. It is only the document for enabling the parties to pay taxes. Hence, much cannot be attributed to the tax paid receipts, tax demand register extract produced by the plaintiff. In addition to all the above, the plaintiff is not at all in possession of the properties. During the course of cross-examination, the plaintiff categorically admits that, now defendants have put up number of houses in the suit schedule property. She has also made an attempt before the court for amending the plaint, but it was rejected by this court. Some of the photographs are confronted to PW-1 during his cross- examination, which are marked at Ex.D-52 to D-58 (Original photographs are marked in OS No.7085/2000 and copies are kept in this case). These documents shows that the properties in question is now a residential area and number of houses are put up. 25
O .S.No.7184/2000 Hence, the plaintiff is not in possession of suit schedule property as on the date of suit and at present.
21. On going through the IA-4 & 5 filed in this case, the plaintiff herself has stated that, the proposed defendants have taken over possession of properties etc., Hence, the plaintiff is not at all in possession of suit property at present. During the course of cross- examination of PW-1 at page-16 it has been stated that, she has not made the persons, who have put up construction as parties to this suit.
22. The cases referred in Ex.D-15 to D-17 falsifies the claim of plaintiff. The plaintiff has failed to show that, the suit property comes within old Sy.No.104
-new Sy.No.65. The observation of the court in OS No.545/1980 at paragraph-17 clearly shows that, the suit property belongs to defendant No.1 herein. There is a specific sentence in para-17 of said Judgment of Ex.D-15, which reads as follows;
26
O .S.No.7184/2000 ".....Therefore, I come to the conclusion that plaintiff is the owner of of he suit property,..."
Hence, the claim of defendant No.1 that Sy.No.43 and the claim of plaintiff in respect of property in Sy.No.104 -new Sy.No.65 are with regard to the same property. Hence, the declaration of title cannot be granted in the absence of valid title and possession.
23. The defendant No.1 has produced Ex.D-20 to show that, Sy.No.43 along with other properties are granted in favor of father of defendant No.1. Ex.D-21 shows that portion of such property was sold to some other persons. Ex.D-22 shows that, the legal heirs of Modi Abdul Khuddus have released right in favour of defendant No.1. In view of these discussions, this court has come to the conclusion that, defendant No.1 is the owner of the suit property and not the predecessor in title of plaintiff. The plaintiff would derive title only if 27 O .S.No.7184/2000 her predecessors had valid title to convey. The plaintiff has failed to show that, her predecessor-in-title Mr. Muninanjappa and others had valid title and property was granted in their favour etc.,. Hence, the plaintiff has not derived the valid title in accordance with law. Hence, Issue No.1 is answered in negative.
24. ISSUE NO-2 :: The plaintiff has prayed that in addition to the relief of declaration that she is the absolute owner of suit schedule property, she has requested for an order of permanent injunction against the defendants. The plaintiff has made allegation in para-5 of the plaint stating that the defendants are laying false claim on the suit schedule property and they are adopting high handed methods to enter into the schedule property and to put up constructions etc., The defendants on the other hand have stated that, the plaintiff is not at all in possession of suit schedule property and the relief of mandatory injunction prayer 28 O .S.No.7184/2000 earlier was not pressed by the plaintiff etc., On going through the records and for the reasons stated under Issue No.1, it is held that, the present plaintiff is not entitled for relief of declaration and the point for consideration under this issue whether the plaintiff is able to show her possession over the suit schedule property as on the date of filing of suit.
25. Admittedly, the plaintiff is not in possession of the suit schedule property. This is evident in view of the application filed before this court in IA-4 & 5 and on going through IA-4 & 5 it has been clearly stated by the plaintiff by filing an affidavit that, the proposed defendants No.4 to 8 are squatting over the property without valid documents and they have taken over possession etc., During the course of cross- examination of plaintiff her GPA has admitted that, he has not made the persons as parties, who have constructed buildings on the property etc., Some of the 29 O .S.No.7184/2000 photographs are confronted during the course of cross- examination of PW-1 they are marked at Ex.D-52 to D- 58 in OS No.7085/2000. On going through the same, now the number of buildings have come up in the said area. Both parties remained absent in this case and they have not produced any subsequent documents. It was orally submitted by learned counsel for the defendant No.1 that, now the properties are sold and number of new purchasers are in possession and number of buildings have come up in the property etc.,
26. Apart from that, Ex.D-15 to D-17 clearly shows that, present plaintiff is not in possession of the property. When the plaintiff herself admits that she is not in possession in the applications filed under IA-4 & 5, the question of granting injunction does not arise. The plaintiff for the reasons best known to her has not addressed any arguments or produced any documents to show that, she is in possession at present. 30
O .S.No.7184/2000 Accordingly, the plaintiff when she is not in possession of suit property, the question of restraining the defendants does not arise. Accordingly, much discussion is not required to answer this issue in negative. Hence, this issue is answered in negative .
27. ISSUE NO-3 :: The defendants have contended that, the present suit filed for the relief of Declaration and Injunction is hit by principles of res- judicata. For clarity and clear understanding Section 11 of CPC is reproduced below;
"No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been sub-sequently raised, and has been heard and finally decided by such Court."31
O .S.No.7184/2000
28. Admittedly, O S No.545/1980 is filed against the predecessor in title of the plaintiff. That O S No.545/1980 is a simple suit for bare injunction. The said suit was filed against Muninanjappa and others by the 1 st defendant herein. The said suit is admittedly decreed in favour of defendant No.1. The present plaintiff claims that, she has purchased the property from Mr. Wazeer Khan, who in turn purchased from Muninanjappa and others by virtue of Ex.P-2 Sale Deed. The suit on hand is for the relief of Declaration and Injunction. Hence, the suit cannot be thrown away on the ground of res-judicata. Because, the main relief prayed is for declaration of title. The earlier suit decided is a suit for injunction simplicitor. Hence, the present suit cannot be dismissed on the ground of res-judicata. Only the title aspect in respect of suit schedule property is required to be adjudicated. When a suit 32 O .S.No.7184/2000 for declaration is filed and when the earlier suits are only suit for bare injunction, for any stretch of imagination the earlier suits cannot be treated as title suits. In a suit for injunction, title is only incidental. Accordingly the reliefs prayed in the earlier suit cannot be equated to the present suit. Hence, this court is of the view that, present suit is not barred by principles of res-judicata. Hence, much discussion is not required to answer this issue as negative. Hence, this issue is answered in negative and proceed to pass the following...
OR D E R The suit of the plaintiff is dismissed with costs.
Draw Decree Accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by me in the open court on this the 22nd day of November 2019).
(K. Narayana Prasad), LV Addl. City Civil & Sessions Judge, Bengaluru.
33
O .S.No.7184/2000 A N NE X U R E LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF ::
PW-1 :: Syed Abdul Rehaman LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENDANTS ::
DW-1 :: Shafee Modi LIST OF DOCUMENTS MARKED ON BEHALF OF PLAINTIFF ::
Ex.P-1 :: Power of Attorney Dated: 20-11-1999 Ex.P-2 :: Registered Sale DEED Dated: 2-05-1974 executed by Wazeer Khan Ex.P-3 :: Demand register extract for the year 1991-92 Ex.P-4 ::Tax paid receipt Ex.P-5 :: Acknowledgement dated:11-2-1998 issued by Bengaluru City Corporation. Ex.P-6 :: Certified copy of the order dated:
18-07-1995 passed by Tahasildar, Bengaluru North Taluk in case No. HOA CR 86/90-91 LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENDANTS ::
Ex.D-1 :: Certified copy of decree in O S No.1120/1974 Dated: 13-01-1978 Ex.D-2 :: Certified copy of Order sheet in OS 34 O .S.No.7184/2000 No.545/1980 (Old No.879/1973) Ex.D-3 :: Certified copy of the plaint in OS No.545/1980 (Old No.879/1973) Ex.D-4 :: Certified copy of the written statement filed in O S No.879/1973.
Ex.D-5 to Ex.D-14 :: Certified copies of the depositions of Pws-
1 to 5 and DWs-1 to 5 in OS No.545/1980 Ex.D-15 :: Certified copy of the Judgment in OS 545/1980 Dated: 24-07-1988.
Ex.D-16 :: Certified copy of the Judgment in RFA 659/1998 dated: 29-11-1999 and decree dated: 24-07-1998 in OS No.545/1980. Ex.D-17 :: Certified copy of the order dated:
10-07-2000 in SLP (Civil) 2796/2000 Ex.D-18 :: Certified copy of the approved plan.
Ex.D-19 :: Certified copy of the registered sale deed dated: 25-04-1927 executed by Modi Abdul Khuddus.
Ex.D-20 :: Certified copy of the order passed by Addl.
Spl. DC for Inam Abolition, Bengaluru Dated: 22-8-1964 in Case No.48/1958-59 Ex.D-21 :: Certified copy of registered sale deed dated: 24-05-1961.
Ex.D-22 :: Certified copy of registered lease deed dated: 21-11-1964.35
O .S.No.7184/2000 Ex.D-23 to Certified copies of tax paid receipts Ex. D-26 :: Dated: 18-09-1973 Ex.D-27 & Ex.D-28 :: Khatha extract of property No. TP No.736 of Devarajeevanahalli.
Ex.D-29 & Ex.D-30 :: Certified copies of plans relating to suit property.
Ex.D-31 - certified copy of Village map Ex.D-32 & Ex.D-33 :: Certified copies of the notice dated:
17-7-1971 Ex.D-34 :: Endorsement dated 18-09-1973 issued by Town Panchayath.
Ex.D-35 :: Certified copy of registered sale deed dated: 10-06-1960.
Ex.D-36 & Ex.D-37 :: Certified copies of tax paid receipts dated:
25-08-1977 Ex.D-38 :: Certified copy of registered partition deed Dated: 05-06-1950 Ex.D-39 :: Certified copy of quit rent register extract. Ex.D-40 :: Certified copy of village map of Devarajeevanahalli.
Ex.D-41 :: Certified copies of registered sale deeds to D-43 dated: 25-02-1963, 21-02-1973 and 36 O .S.No.7184/2000 2-2-1963 respectively.
Ex.D-44 :: Certified copy of extract of register No.8 pertaining to Sy.Nos. 39, 40, 33 and 7of Devarajeevanahalli.
Ex.D-45 :: Encumbrance Certificates for the to D-48 periods 2-11-1964 to 11-9-1975, 1-4-1975 to 18-2-1999, 1-4-1964 to 31-3- 1989 and 1-4-1999 to 14-5-2001 respectively in respect of Sy.No.43 Ex.D-49 :: Certified copy of endorsement dated:
21-8-1972 issued by ADLR, Bengaluru. Ex.D-50 :: Certified copy of Order dated : 8-2-1982 passed in case No. INA 984/1979-80 and INA No.2192/1979-80 by the Land Tribunal Bengaluru.
Ex.D-51 :: Certified copy of report given to SHO Kadugondanahalli Police by Modi Ziaulla. Ex.D-52 :: Photographs of suit schedule property. to D-58 Ex.D-59 :: C.D. Ex.D-52 to Ex.D-59 are kept in O S No.7085/2000 and copies of the same in this case. ( Ex.D-47 to D-59 are xerox copies as per observation made in paragraph 13) (K. Narayana Prasad), LV Addl. City Civil & Sessions Judge, Bengaluru.
37 O .S.No.7184/2000