Bangalore District Court
Smt.K.Chandrakala vs Sri.Narasimhamurthy on 6 June, 2019
IN THE COURT OF THE XX ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-32), BENGALURU CITY
Dated this the 6th day of June, 2019
Present:
Sri.Ningouda B.Patil, B.Sc., LL.M.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.3592/2014
Plaintiff: Smt.K.Chandrakala,
W/o.Jayaramaraju,
Aged about 32 years,
Residing at No.23,
Bhuvaneshwaranagar,
Dasarahalli,
Arabic College Post,
Bangalore-560 045.
(By Sri N.Thimme Gowda,
Advocate.)
/VS/
Defendants: 1. Sri.Narasimhamurthy,
S/o.S.V.Muninarayanaiah,
Aged about 58 years,
Residing at No.7/1,
Venkateshwara Nilaya,
Byatarayanapura,
Amruthahalli Road,
Yelahanka Hobli,
Bengaluru-560 092.
2. Sri.M.Krishnan,
S/o.late Muniraju,
Aged about 63 years,
Residing at No.106,
4th Cross, Saibaba Nagar,
Srirampuram,
Bengaluru-560 092.
2 O.S.No.3592/2014
3. Sri.Ganapathi Joshi,
S/o.Narayanashivaram Joshi,
Aged about 56 years,
R/at No.34, Shettappa
Compound, Near Jyothi Tiles
Factory, Ashwathanagar,
Bengaluru-560 094.
4. Sri.Seetharam Bhat,
S/o.Satyanarayana Bhat,
Aged about 57 years,
R/at: Kendriya Vidyalaya,
MIG Center, Shivanna
Shetty Garden,
Bengaluru-560 042.
5. Smt.Jaya Shekar,
W/o.N.C.Shekar,
Aged about 67 years,
R/at No.53, J.Shiva Layout,
New BEL Road,
RMV Extn. Stage-II,
Bengaluru-560 054.
6. Smt.Vijaya Priya Kumar,
W/o.M.Priya Kumar,
Aged about 65 years,
R/at: No.19, "Prema Priya",
2nd Cross, 8th 'A' Main Road,
Rajmahal Vilas Extn.,
Sadashivanagar,
Bengaluru-560 080.
7. Sri.V.G.Hari,
S/o.M.Vishnu Bhat,
No.5, Narayan Rao Building,
Bellary Road, Hebbal,
Bengaluru-560 024.
8. Sri.R.Ravichandra,
S/o.Rajgopal,
Aged about 55 years,
R/at: No.23, Seppings Road
Cross, 4th Street,
Bengaluru.
3 O.S.No.3592/2014
9. Sri.Kuppa Srinivas Karthik,
S/o.K.V. Shastri,
Aged about 45 years;
10.Sri.Kuppa Subramanya
Srikanth, S/o.K.V.Shastri,
Aged about 47 years,
Sl.No.9 and 10 are R/at:
Type 11/2 Quarters,
FTI Campus, Tumkur Road,
Bengaluru-560 022.
11.Sri.K.S.Chacko,
S/o.Samuel,
Aged about 53 years;
12.Smt.Ramani Chacko,
W/o.K.S.Chacko,
Aged about 51 years,
Sl.No.11 and 12 are R/at:
No.17, Cauvery Oil Mill Road,
Ramaswamy Palya,
Maruthi Seva Nagar,
Bengaluru-560 033.
13.Sri.Aravinda Anantha Rao
Deshpande,
S/o.Anantha Rao B.Deshpande,
Major,
R/at No.12, AGS Colony,
Anandnagar, Hebbal,
Bengaluru-560 024.
14.Sri.Abdul Khader,
S/o.Abdul Majeed,
Aged about 60 years,
R/at No.1366,
Austin Town Layout,
Austin Town,
Bengaluru-560 047.
4 O.S.No.3592/2014
15.Ms.Prasuna M.,
D/o.M.R.Reddy,
Aged about 42 years,
R/at No.13/32, 2nd 'E' Main
Road, Sanjayanagar Post
Bengaluru-560 094.
16.Sri.S.N.Murthy,
S/o.Ramana Rao,
Aged about 51 years,
R/at No.30, Mission Road,
Balram Building,
Bengaluru-560 027.
17.Sri.C.K.George,
S/o.C.V.Kuriyan,
Aged about 69 years,
R/at No.B-609,
New Housing Colony,
IISC, Bengaluru-560 012.
18.Sri.Srikanta Rao,
S/o.G.K.Jagannath Rao,
Aged about 52 years,
C/o.Larsen & Toubro,
Bellary Road,
Byatarayanapura,
Bengaluru-560 092.
19.Sri.S.Vishwanath,
S/o.P.R.Somashekariah,
Aged about 58 years,
R/at No.9/4, 2nd Cross,
2nd Main, Dinnur,
R.T.Nagar,
Bengaluru-560 032.
(Deft.5: By Sri.Prasad B., Advocate.)
Deft.6: By Sri.Nagaraja S., Advocate.
Deft.17: By Smt.Clara George, Advocate.)
Deft.1 to 4 & 7 to 16 .... Dismissed.
5 O.S.No.3592/2014
Date of Institution
of the suit: 08.05.2014
Nature of suit : Injunction suit.
Date of commencement of
recording of evidence : 15.02.2017
Date on which Judgment
pronounced : 06.06.2019
Total Duration : Years Months Days
05 00 28
JUDGMENT
Plaintiff instituted this suit against the defendants for the reliefs of declaration and perpetual injunction with respect to her ownership and possession over the subject matter of the suit.
2. The subject matter of the suit (hereinafter called as 'suit property') is all that piece and parcel of immovable property bearing Sy.No.29/3, measuring 27 guntas situated at Dasarahalli Dhakale, K.R.Puram Hobli, Bengaluru East Taluk and having definite boundaries.
3. The case of the plaintiff is that, she is the absolute owner in possession of suit property; she acquired the ownership over the said property through a registered Sale Deed dated 22.02.2006.
4. Plaintiff pleaded that, one Narasimhaiah and others were the owners of Sy.No.29/2 totally measuring 9 acres 28 guntas including Kharab land situated at Dasarahalli village in Bengaluru east Taluk; out of the said 6 O.S.No.3592/2014 property, the said Narasimhaiah and others sold two acres 27 guntas to one K.Gangappa by executing a registered agreement of sale and a GPA dated 23.1.1993 and also through an endorsement thereon on 11.10.1993; the said Narasimhaiah put K.Gangappa in possession of the said 2 acres 27 guntas by delivering physical possession of the property; the GPA executed by Narasimhaiah and others was coupled with an interest; thereafter, the said Gangappa out of 2 acres 27 guntas sold suit property to the plaintiff on 22.2.2006; accordingly, plaintiff acquired the ownership over suit property and had been put in possession of the same; the name of plaintiff has been mutated to the property extract of suit property; plaintiff is paid property tax upto date; accordingly, plaintiff exercising her rights of ownership over the suit schedule property and she is in peaceful possession and enjoyment of the same.
5. Plaintiff further pleaded that, one Doddamuniyappa and others were tried to interfere with the possession and enjoyment of plaintiff and others and therefore, plaintiff and others were instituted suit O.S.No.9730/2006 against the said Doddamuniyappa and others and the said suit was decreed on 10.6.2010.
6. The plaintiff further also pleaded that, after her purchase, the suit property was surveyed and renumbered as Sy.No.29/3 measuring 27 guntas; she also encumbered the said suit property; she pleaded that, the revenue and survey documents clearly establishes her right, title and interest and also possession over suit property.
7 O.S.No.3592/20147. The plaintiff furthermore pleaded that, defendants are nothing to do with any portion of suit schedule property; they disputing the identification of suit property and without having any right, title or interest over the suit property, they illegally trying to interfere with possession and enjoyment of plaintiff over it; they are making efforts to put up constructions in the vacant land of suit property; defendants on 30.4.2014 tried to interfere with possession of plaintiff over suit property; plaintiff resisted the illegal acts of defendant on 30.4.2014 and by that time, defendants threatened the plaintiff that they will come again with large number of their supporters and they will put up the constructions on the land of suit property; hence, she lodged police complaint against defendants; but, as the matter is of civil nature, police have not entertained the complaint and suggested to approach the civil court; the defendants are influential persons and it is impossible for the plaintiff to resist the illegal acts of defendants and their supporters; therefore, without alternative, plaintiff is before this court with the suit.
8. The plaintiff further more also stated that, the cause of action for the suit arose on 30.04.2014 and when defendants were attempted to interfere with the possession and enjoyment of plaintiff over suit property by trespassing upon it and also when they threatened the plaintiff. Plaintiff further also pleaded that the cause of action arose and location of suit property are within the jurisdiction of this Hon'ble Court and therefore this Court has got jurisdiction 8 O.S.No.3592/2014 to try and entertain the suit. Accordingly, plaintiff prayed to decree the suit.
9. This court issued the summons to the defendants and accordingly, the summons were served on defendant No.5, 6 and 17. Plaintiff not taken steps against defendant No.1 to 4 and 7 to 16 and hence, this court on 27.1.2016 passed an order dismissing the suit against defendant No.1 to 4 and 7 to 16.
10. Defendant No.5, 6 and 17 made their appearance through their respective counsels and filed their independent written statements.
11. Defendant No.5 defended the suit by contending inter-alia that, the suit of plaintiff is most frivolous, not maintainable and based on the concocted documents; plaintiff not approached the court with clean hands.
12. Defendant No.5 contended that, it is false to state that plaintiff is the absolute owner in possession of suit property; it is false to state that, plaintiff acquired the ownership over the same through registered sale deed. Defendant No.5 denied that Narasimhaiah and others agreed to sell a land measuring 2 acres 27 guntas to Gangappa on 23.1.1993 and further also denied the execution of registered agreement of sale with endorsement and GPA coupled with interest dated 23.1.1993. Defendant No.5 further denied the delivery of physical possession of 2 acres 27 guntas in favour of K.Gangappa.
9 O.S.No.3592/201413. Defendant No.5 further contended that, it is false to state that K.Gangappa on 22.2.2006 sold the suit property out of 2 acres 27 guntas in favour of plaintiff and put the plaintiff in possession of the same; it is false to state that, after the sale, the name of the plaintiff was mutated to the revenue records and the RTC entries of suit property are standing in the name of plaintiff; it is not within his knowledge that, plaintiff paid the property tax upto date; it is false to state that plaintiff exercising ownership rights over suit schedule property and accordingly, she is in possession and enjoying the same; it is false to state that Doddamuniyappa and others tried to interfere with peaceful possession and enjoyment of plaintiff over suit schedule property.
14. Defendant No.5 further also contended that it is false to state that the suit property was surveyed by the survey department and renumbered as 29/3; there was no any survey work in the suit property; it is false to state that plaintiff encumbered the suit schedule property; it is false to state that defendants are disputing the identification of suit property and they and their followers illegally trying to interfere with the peaceful possession and enjoyment over suit property; it is false to state that defendants are not having any right, title or interest over suit schedule property; it is false to state that defendants are trying to put up constructions on the land of suit property and for the said purpose, they on 30.4.2014 trespassed the suit property and threatened the plaintiff; it is false to state that plaintiff lodged police complaint against the defendants; it 10 O.S.No.3592/2014 is false to state that defendants are influential persons and attempted to interfere with peaceful possession and enjoyment of plaintiff over suit property; there is no any cause of action for the suit and hence, plaintiff is not entitled for any relief prayed.
15. Defendant No.5 submitted that, K.Gangappa, was the father of plaintiff and he was a greedy and professional land grabber who involved in fraudulent activities. Several criminal cases were pending against him in connection with land grabbing around Bangalore.
16. Defendant No.5 further submitted that, the original owner of Sy.No.29/2 measuring 9 acres 28 guntas was one K.V.Byregowda and he sold the said property to one Doddasallappa by executing registered sale deed dated 30.1.1945; after his death, his legal heirs succeeded the said property; thereafter, the family of Doddasallappa and Chikkasallappa decided to form a layout in the western portion of the land of Sy.No.29/2 measuring 02 acres and 27 guntas and accordingly, executed GPA in favour of other family members viz. M.Narasimha, Chikkanarasimha and S.Narasimha, who thereafter developed the land and sold sites to different purchasers; accordingly, defendant No.5 in the year 1992 purchased the site No.41; therefore, Khatha of the said property transferred in the name of defendant No.5; likewise other defendants purchased other sites and accordingly, they are in possession and enjoying the site that they purchased; K.Gangappa, the father of plaintiff was witness to all the sale deeds; in fact, he assisted the original owners to form layout and sites and in their 11 O.S.No.3592/2014 alienations; he having acquaintance of paper work of developing lands and hence, created false sale agreement of sale and GPA alleged to be executed by original owners and by taking misuse of the same on 04.04.2009 he appeared with 30-40 goondamen and claimed that he purchased the land and claimed that he had an order of permanent injunction from the court; he further also demanded all the residents to vacate and hand over the possession of the property to him; by that time all the residents approached the jurisdictional police and the police called the Gangappa and directed him not to disturb the peaceful possession and enjoyment of residents of the layout; the said Gangappa undertook before police to that effect; without learning a lesson, the said Gangappa again started to claim the property through his wife, sons and daughter and filed a false and bogus suit O.S.No.9730/2006 against the original owners; the original owners lost their interest in the property as they sold the property to defendant No.5 and others and hence, they not appeared in O.S.No.9730/2006 and hence, court passed an ex-parte judgment; taking undue advantage of the said decree, Gangappa again tried to interfere with the possession of defendant No.5 and others; again all the residents of layout approached the Commissioner of Police and narrated detailed facts; the Commissioner of Police after hearing, directed the jurisdictional police to initiate a criminal proceedings under Section 420 of IPC; thus, Gangappa and his family members troubling the defendants by one or other way; either the plaintiff or her father or her family members are not having any right, title or interest in the suit property, 12 O.S.No.3592/2014 plaintiff is not a bonafide purchaser of the suit property; she suppressed the fact that already layout in the suit property has been formed and sites have been sold to the different purchasers and the purchasers constructed the houses and residing peacefully therein; the sale deed and GPA of plaintiff are all created and forged; defendant No.5 and other purchaser have not signed the said sale deed and GPA and hence, the said are not binding on them; hence, plaintiff is not entitle for any relief. Accordingly, defendant No.5 prayed to dismiss the suit.
17. However, defendant No5 admitted that, Narasimhaiah and others were the owners of the suit property and O.S.No.9730/2005 was decreed.
18. Defendant No.6 also defended the suit by filing her written statement contending inter-alia that, the suit of plaintiff is frivolous and replete with misstatements and suppression of material facts which is not sustainable under the eyes of law and hence, the same is not maintainable.
19. Defendant No.6 contended that, she is the owner of site No.44 formed in Sy.No.29/2; by taking the financial help of her family members; accordingly, she is in possession and enjoyment of the property; she purchased the same on 24.03.1992 through a registered sale deed from its original owners through their GPA holders M.Narasimha and S.Narasimha for a valuable consideration; she invested her hard earned money and also borrowing from family members; the revenue records of property purchased are all standing in the name of 13 O.S.No.3592/2014 defendant No.6; she is also paying the property tax; hence, she is a bonafide purchaser; therefore, suit of the plaintiff is a baseless not invites any interference and the same is not maintainable against her.
20. Defendant No.6 further contended that, it is false to state that, plaintiff acquired the ownership over the suit property through a registered sale deed dated 22.02.2006; it is not true to say that, Narasimha and others executed GPA and Agreement of Sale in favour of Gangappa regarding land measuring 2 acres 27 guntas in Sy.No.29/2; the said GPA and Agreement of Sale are created and concocted for the suit; in fact, the said Narasimha and others have no right to execute such documents as they on 24.03.1991 itself executed the sale deed of site lNo.44 in favour of defendant No.6; hence, the subsequent sale deed dated 22.02.2006 of plaintiff has not any legal sanctity.
21. Defendant No.6 further contended that, she had no knowledge about O.S.No.9730/2006; the survey work and phodi of Sy.No.29/3 are also not within her knowledge; her purchased property is not a part and parcel of suit property; plaintiff is not in possession of property purchased by the defendant No.6; the purchased property of defendant No.6 will not fall within the boundaries of suit property; defendant No.6 neither interfered with possession of plaintiff over suit property nor threatened her, hence, suit of the plaintiff is not maintainable against defendant No.6. Accordingly, defendant No.6 prayed to dismiss the suit.
14 O.S.No.3592/201422. Defendant No.17 defended the suit by filing written statement contending inter alia that, the suit filed by the plaintiff is not maintainable; plaintiff in the absence of prayer for possession, she is not entitled to the relief of declaration; plaintiff not paid required court fees; plaintiff also not entitled for the relief of permanent injunction; the suit of the plaintiff is barred by limitation; and also the same is not maintainable for mis-joinder of necessary parties and there is no any cause of action for the suit.
23. Defendant No17 contended that, plaintiff not approached the court with clean hands and she is guilty of suppressing material facts; suit of the plaintiff is based on fabricated and concocted documents; it is false to state that, plaintiff purchased the suit properety on 22.02.2006 and she is the absolute owner of the same; it is false to state that original owners, Narasimha and others agreed to sell the suit property and they executed the agreement of sale and GPA in favour of Gangappa, the father of plaintiff in respect of land to an extent of 2 acres 27 guntas in Sy.No.29/2; it is false to state that, the father of plaintiff sold the land an extent of 01 acre 27 guntas in favour of plaintiff on 22.02.2006; it is false to state that the name of the plaintiff was mutated; it is false to state that, plaintiff exercising her ownership rights over the suit property and she is in possession of the same; it is false to state that plaintiff filed suit O.S.No.9730/2006 in respect of suit property and the same is decreed; the said decree is an ex- parte decree and hence, the same is not binding on defendant No17.
15 O.S.No.3592/201424. Defendant No17 further contended that, it is false to state that, the suit property was resurveyed as Sy.No.29/3; it is false to state that, plaintiff is continuously in possession and enjoying the suit property; it is false to state that, plaintiff is an innocent person; and the defendants are unlawful parsons; there is no cause of action for the suit and one stated is an imaginary one.
25. Defendant No17 submitted that, K.Gangappa was the father of plaintiff and he was a greedy and professional land grabber who involved in fraudulent activities. Several criminal cases were pending against him in connection with land grabbing around Bengaluru; it is false to state that plaintiff derived valid title to the suit property; it is false to state that, defendant not derived and not having valid documents and they relying on fraudulent documents; it is not true to say that, defendants are trying to interfere with the possession and enjoyment of the plaintiff; it is false to state that, defendants are trying to construct illegal constructions in the suit property; it is false to state that, on 30.04.2014 defendants threatened the plaintiff.
26. Defendant No.17 submitted that, Doddasallappa was the original owner of Sy.No.29/2 and after his death, his legal representative developed the land in the said survey number and defendant No.17 purchased the one site bearing No.49 from the legal representatives of Doddasallappa through their GPA Holders; accordingly, he is in possession and enjoyment of the property purchased without any interruption; revenue records of property 16 O.S.No.3592/2014 purchased are all standing in the name of defendant No.17; he is also paying the property tax; hence, he is a bonafide purchaser. He further also contended that, he bequeathed the property site purchased by him in favour of his daughter, namely Reena George. Hence, the said Reena George is also a necessary party to the suit. Therefore, suit of the plaintiff is a baseless not invites any interference, hence, the same is not maintainable against him.
27. Plaintiff not taken steps against defendant No.1 to 4 and 7 to 16. Hence, this court on 27.1.2016 dismissed the suit of the plaintiff against defendant No.1 to 4 and 7 to
16.
28. In the light of the above said rival pleadings of plaintiff and defendant No.5, 6 and 17, my learned predecessor framed the following issues:
1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property by virtue of the Sale Deed Dt:22-
02-2006?
2. Whether the plaintiff further proves that she is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?
3. Whether there is a cause of action?
4. Whether the plaintiff is entitled for the reliefs sought for?
5. What order or decree?
17 O.S.No.3592/201429. My predecessor also framed additional issues on 17.12.2016 as under:
1. Whether court fee paid is sufficient?
2. Whether suit is barred by limitation?
3. Whether suit is bad for non-joinder of necessary parties?
30. The burden of proving of Issue No.1 and 2 is on plaintiff. In order to discharge the burden of proving issue No.1 and 2 plaintiff resorted for both oral evidence and documentary evidence. Plaintiff adduced the oral evidence by examining herself as P.W.1 and produced the documentary evidence at Ex.P.1 to P.6. Defendants not cross-examined the evidence of PW1 even after providing sufficient opportunities. Hence, cross-examination of P.W.1 is taken as Nil.
31. Defendants also not adduced any oral evidence and also not produced any documentary evidence even providing sufficient opportunities.
32. Perused carefully the pleadings of plaintiff and defendant No.5, 6 and 17, the documents available on record and the evidence led in the case. Heard the learned counsels appearing for plaintiff and defendant No.5, 6 and
17.
33. My answers and findings to the above issues are as follows:
Issue No.1- In the Affirmative;18 O.S.No.3592/2014
Issue No.2- In the affirmative; Issue No.3- In the affirmative; Addl. Issue No.1- In the Negative; Addl. Issue No.2- In the Negative; Addl. Issue No.3-In the Negative; Issue No.4- Partly in Affirmative; Issue No.5- As per the order passed for the following:
REASONINGS
34. ISSUE NO.1: It is the case of the plaintiff that she is the absolute owner in possession of suit property.
Plaintiff pleaded in her plaint para No.3 pleaded that, she acquired the ownership over the suit property through a registered Sale deed dated 22.02.2006. She further pleaded that based on said sale deed, her name was mutated to the property extract of suit property. She further also pleaded in her plaint that, the khatha of the suit property was transferred in her name and she is going to pay the tax on suit property. Plaintiff further also pleaded that, she is in possession of suit property.
35. Plaintiff produced the documentary evidence at Ex.P.1. The said document is a certified copy of registered sale deed dated 22.2.2006. The original owners of suit property sold the same to one Gangappa through their power of attorney. Plaintiff also produced another documentary evidence at Ex.P.5. The said document is RTC of Sy.No.29/3. According to plaintiff, her purchased property in Sy.No.29/2 was renumbered as Sy.No.29/3 by effecting Phodi. Plaintiff also produced the documentary evidence at 19 O.S.No.3592/2014 Ex.P.2 and P.3. Ex.P.2 and P.3 are Tippani extracts (map) of Sy.No.29. According to which new hissa No.3 has been created in Sy.No.29.
36. Plaintiff also adduced oral evidence by examining herself and P.W.1 and she in her examination-in-chief clearly and categorically stated that she acquired the ownership over suit property, through a sale deed dated 22.2.2006 and accordingly, she is in peaceful possession and enjoyment of the said property.
37. Defendant No.5, 6 and 17 though defended the suit by filing their independent written statements, but, they not chosen to challenge the evidence led by the plaintiff. In other words defendant No.5, 6 and 17 not cross-examined the oral evidence of P.W.1 and also not tried to cross-check the documentary evidence produced by the plaintiff. Thus, the evidence led by the plaintiff is unchallenged. The oral evidence of P.W.1 corroborates with documentary evidence produced by plaintiff. Thus, plaintiff by producing documentary evidence Ex.P.1 to 3 and 5 and also by adducing the oral evidence proved that she is the owner of suit property. Accordingly, my answer to issue No.1 is in Affirmative.
38. Issue No.2: Plaintiff in her plaint Para No.3 pleaded that she is in peaceful possession and enjoying the suit property. She produced the documentary evidence at Ex.P.5. The said documentary evidence substantiates her possession over the suit property. Ex.P.5 is a RTC of suit 20 O.S.No.3592/2014 property i.e. Sy.No.29/3. On careful perusal of Ex.P.5, it is found that the name of plaintiff is appearing in owner's column and cultivator's column. Thus, Ex.P.5 shows that plaintiff is cultivating the property in Sy.No.29/3.
39. Defendant No.5, 6 and 17 contended in their written statement that Sy.No.29/2 was converted into a layout by its original owner and sites have been formed prior to the year 1992. They further contended that, they purchased site No.41, 44 and 49 respectively from the original owners through registered sale deeds in the year 1992. But, defendant No.5, 6 and 17 not produced any document to show that the landed property in Sy.No.29/2 including the suit property was converted into a layout. They also not produced any genuine documents to show that, they purchased site Nos. 41, 44 and 49 respectively in the converted land of Sy.No.29/2. On the other hand, plaintiff produced Ex.P.5 which is a revenue document infers a presumption as stated in Section 133 of Karnataka Land Revenue Act, 1964. The said documentary piece of evidence was also not disputed by the defendants. Hence, plaintiff by producing Ex.P.5 proved that as on the date of suit, she is in possession of suit property. Accordingly my answer to Issue No.2 is in Affirmative.
40. ISSUE NO.3: Defendant No.6 in his written statement para No.6 contended that, there is no cause of action for the plaintiff to institute the suit. Plaintiff in her plaint para No.13 stated that, the cause of action for the suit arose on 30.4.2014 and subsequently when defendants 21 O.S.No.3592/2014 attempted to trespass the suit schedule property and threatened her to squat on the property. Thus, plaintiff mentioned the cause of action for the suit in plaint para No.13. On plain reading of plaint para No.13, it reveals that, suit of the plaintiff is having definite cause of action. It is settled principle of law that to ascertain whether a suit is having cause of action or not, only plaint averments are to be seen. In this case, plaintiff clearly mentioned the cause of action for the suit in plaint para No.13. Hence, the contention of defendant No.6 that plaintiff is not having cause of action for the suit is not acceptable. Accordingly my answer to Issue No.3 is in Affirmative.
41.ADDITIONAL ISSUE NO.1: This issue arose in view of the defence put by defendant No.17 in para No.2 of his written statement. Plaintiff sought a relief of declaration regarding declaration of her ownership over suit property and she further sought relief of permanent injunction against defendants restraining them from interfering with her peaceful possession and enjoyment over suit property.
42. For the relief of declaration, plaintiff valued her suit claim under Section 24(b) of Karnataka Court Fees and Suits Valuation Act, 1958 and accordingly, she paid a court fee of Rs.25/-. Plaintiff paid the said court fee by assessing the market value of suit property as per Section 7(2) of Karnataka Court Fees and Suits Valuation Act. 1958. The said provision provides that, 22 O.S.No.3592/2014 (2) The market value of land in suits falling under sections 24(a), 24(6), 26(a), 27, 28, 29, 31, 35(1), 35(2), 35(3), 36, 38, 39 or 45 shall be deemed to be,-
(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Deputy Commissioner's register as separately assessed with such revenue, and such revenue is permanently settled- twenty-five times the revenue so payable:
(b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid, and such revenue is settled, but not permanently-twelve and a half times the revenue so payable:
(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue-fifteen times the net profits if any from the land during the year next before the date of presenting the plaint or thirty times the revenue payable on the same extent of similar land in the neighbourhood, whichever is lower;
(d) where the land forms part of an estate paying revenue to Government, but is not a 23 O.S.No.3592/2014 definite share of such estate and is not separately assessed as above mentioned or the land is a garden or the land is a house site whether assessed to full revenue or not, or is land not falling within the foregoing description-
the market value of the land.
Thus, as per Section 7 of Karnataka Court Fees and Suits Valuation Act, 1958, for assessing of the market value of the property, the revenue payable on the property is to be considered. In this case, the revenue payable on the suit property is Rs.0.78 and plaintiff sought ancillary relief of permanent injunction. Hence, plaintiff had to pay the court fee computable under Section 24(b) of Karnataka Court Fees and Suits Valuation Act, 1958 and the calculation comes to 25 x 0.78 / ½ = 9.75, which is less than Rs.1,000/-. Hence, plaintiff is under obligation of payment of Rs.25/- as court fee on the relief of declaration. But, plaintiff paid Rs.75/- as court fee on relief of declaration. Plaintiff paid an excess amount of Rs.50/- as court fee on the relief of declaration.
43. For the relief of permanent injunction, plaintiff computed the court fee under Section 26(c) of Karnataka Court Fees and Suits Valuation Act, 1958, which is a proper one.
44. Thus, there is no any deficiency in the court fee paid by the plaintiff. Hence, there is no any worth in the allegation of defendant No.17 regarding payment of court 24 O.S.No.3592/2014 fee. Accordingly my answer to Additional Issue No.1 is in Negative.
45. ADDITIONAL ISSUE NO.2: Defendant No.17 in his plaint para No.3 took a contention that the suit of the plaintiff is barred by limitation. In view of the said contention, additional issue No.2 is framed. It is settled principle of law that the question of limitation is a mixed question of law and facts. To know the facts of the case, evidence with trial is necessary. In this case, only plaintiff adduced oral evidence and also produced documentary evidence. The oral evidence adduced and documentary produced by the plaintiff does not discloses the fact that her suit is barred by limitation. Defendants not led any evidence to show that suit of the plaintiff is barred by limitation. Thus, under the absence of sufficient materials, it cannot be held that, suit of the plaintiff is barred by limitation.
46. Further on careful perusal of plaint averments, it reveals that the cause of action for the suit arose on 30.4.2014 and plaintiff instituted the suit on 8.5.2014. The suit of the plaintiff is in time. Hence, there is no any meaning in the contention of defendant No.17 that suit is barred by limitation. Hence, my answer to Additional Issue No.1 is in Negative.
47. ADDITIONAL ISSUE NO.3: Defendant No.17 in his plaint para No.3 took a contention that the suit of the plaintiff is bad for non-joining of necessary party. In view of the said contention, additional issue No.3 has been framed.
25 O.S.No.3592/2014It is the case of the defendant No.17 that he purchased site No.49 and bequeathed the same to his daughter by name Reena C.George by executing registered Gift Deed dated 15.12.2012 and by virtue of the said Gift Deed, Reena C.George became owner of site No.49. Therefore, according to defendant No.17, the said Reena is a proper and necessary party to the suit.
48. Plaintiff seeking relief of declaration and permanent injunction with respect to suit property. The suit property is an agricultural landed property bearing Sy.No.29/3 measuring 27 guntas. The stand of defendant No.17 is that site No.49 is a part and parcel of Sy.No.29/3. But, he not produced any document to show that site No.49 is a piece and parcel of Sy.No.29/3. When there is no iota of evidence to show that site No.49 is a piece of land in Sy.No.29/3, it cannot be held that the owner of site No.49 is a necessary and proper party to the suit. It is the principle of law that a necessary party is one, without his presence, disposal of case is not possible. In this case, when defendant No.17 failed in furnishing the evidence to show that site No.49 is a part of Sy.No.29/3, his daughter is not a necessary party to the suit. Hence, suit is not bad for non- joining of necessary party. Therefore, my answer to Additional Issue No.3 is in Negative.
49. ISSUE No.4: Plaintiff seeking relief of declaration of ownership over suit schedule property. She also seeking relief of permanent injunction against defendants restraining them from interfering with her peaceful possession and 26 O.S.No.3592/2014 enjoyment over suit schedule property. The suit schedule property is an agricultural landed property bearing Sy.No.29/3 measuring 27 acres. Plaintiff pleaded that she acquired ownership over suit schedule property through a registered sale deed dated 22.02.2006 executed by the general power of attorney holder of original owners. Defendant No.5, 6 and17 contended that, the general power of attorney holder is none but, the father of plaintiff. According to them, the general power of attorney dated 23.1.1993 hold by the father of plaintiff i.e. K.Gangappa, is an illegal document. Defendant No.5, 6 and 17 further contended that, they purchased the sites in the year 1992 formed in Sy.No.29/2 by the original owners. Their sale deeds are prior to GPA dated 23.1.1993. Hence, the GPA executed by the original owners in favour of K.Gangappa i.e. the father of plaintiff holds no good. But, defendant No.5, 6 and 17 not produced a single piece of document to show that they purchased sites in Sy.No.29/2. Defendant No.5, 6 and 17 also not adduced their oral evidence to substantiate their defence. On the other hand, plaintiff adduced oral evidence and also produced documentary evidence at Ex.P.1 to 6. Ex.P.1 is a certified copy of registered sale deed dated 22.2.2006 through which she derived title to the suit schedule property. Ex.P.2 and P.3 are the survey records, which establishes that there was a fragmentation in survey No.29/2 and as per that fragmentation Sy.No.29/3 with respect to suit property was created. Ex.P.4 and P.5 are the revenue documents which creates a presumption of ownership and possession of plaintiff over suit property. Ex.P.6 is a certified copy of judgment and decree passed in 27 O.S.No.3592/2014 O.S.No.9730/2006 against the original owners of Sy.No.29/2.
50. Further, plaintiff and others instituted the said suit for the relief of permanent injunction against the original owners of suit property. The Civil Court decreed the suit and granted the relief of permanent injunction in favour of plaintiff and others. No doubt, defendants are not parties to the said suit, but the judgment and decree passed therein i.e. the judgment and decree under Ex.P.6 presupposes that plaintiff is in possession of suit property. It is pertinent to note that, defendant No.5, 6 and 17 not challenged the documentary evidence produced by the plaintiff. It is cardinal principle of law of evidence that, a fact may be proved either by adducing oral evidence or by producing documentary evidence. Plaintiff in this case by adducing oral evidence and also producing documentary evidence at Ex.P.1 to 6 and the said evidence proved that she is the owner of suit schedule property and she is in possession of the same. When plaintiff proved her ownership and possession over a suit schedule property, she is entitled for the relief of declaration of ownership and relief of injunction to protect her possession.
51. This court on 27.1.2016 dismissed the suit against defendant No.1 to 4 and 7 to 16 as plaintiff not taken steps against them. Plaintiff also not taken steps against defendant No.18 and 19 and hence, suit of the plaintiff is liable for dismissal against defendant No.18 and 28 O.S.No.3592/2014
19. Accordingly, my answer to Issue No.4 is Partly in Affirmative.
52. ISSUE NO.5: In view of my observations/ answers to the issue No.1 to 4 and additional issue No.1 to 3, I proceed to pass the following ORDER Suit of the plaintiff is decreed in part.
It is decreed and declared that plaintiff is the owner of schedule property.
Defendant No.5, 6 and 17 or anybody on their behalf are hereby restrained by an order of perpetual Injunction not to interfere with the peaceful possession and enjoyment of plaintiff over suit property in any manner whatsoever.
Suit of the plaintiff against defendant No.1 to 4 and 7 to 16, 18 and 19 is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, computerised by her, corrected and then pronounced by me in open court on the 6th day of June, 2019.) (Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
29 O.S.No.3592/2014ANNEXURE List of witnesses examined for the Plaintiff:
P.W.1:Smt.Chandrakala List of documents marked for the Plaintiff:
Ex.P.1 Ex.P.1 is a certified copy of registered sale deed dated 22.2.2006 Ex.P.2 & 3 Two Sketches.
Ex.P.4 Mutation Register extract.
Ex.P.5 RTC.
Ex.P.6 Certified copy of judgment and decree
passed in O.S.No.9730/2006
List of Witnesses examined for the defendants:
Nil.
List of documents marked for defendansts:
Nil.
(Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.30 O.S.No.3592/2014
ORDRS ON I.A.NO.XI Defendant No.3 filed this application under Order IX Rule 7 r/w. Section 151 of CPC recalling exparte order passed against him and thereby permitting him to take part in the proceedings.
On perusal it is found that, this court on 27.1.2016 dismissed the suit against defendant No.3. Hence, the application filed by the defendant No.3 is not maintainable. Accordingly, the same is hereby dismissed.31 O.S.No.3592/2014
Judgment pronounced in the open court (vide separate judgment).
ORDER Suit of the plaintiff is decreed in part.
It is decreed and declared that
plaintiff is the owner of schedule
property.
Defendant No.5, 6 and 17 or
anybody on their behalf are hereby
restrained by an order of perpetual
Injunction not to interfere with the
peaceful possession and enjoyment of
plaintiff over suit property in any
manner whatsoever.
Suit of the plaintiff against
defendant No.1 to 4 and 7 to 16, 18 and
19 is hereby dismissed.
No order as to costs.
Draw decree accordingly.
XX Addl.C.C. & S.J.,
Bengaluru.
32 O.S.No.3592/2014
33 O.S.No.3592/2014