Bangalore District Court
Sri.V.Thimmegowda vs Sri.Gopal @ Gopalappa on 1 September, 2016
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH No.23.
Dated this the 1st DAY OF SEPTEMBER, 2016
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.3813/2001
PLAINTIFF/S: 1. Sri.V.Thimmegowda,
S/o late Venkate Gowda,
Aged about 63 years,
2. Sri.T.Keshava Murthy,
Aged about 37 years,
S/o Thimmegowda,
Plaintiffs No.1 and 2 are
R/at No.559, 4th cross,
BSK I stage,
Bengaluru -560 050.
(By Sri.KKV, Advocate)
--Vs.---
DEFENDANT/S: 1. Sri.Gopal @ Gopalappa,
Major by age,
S/o Late Chinnappa @ Chinnanna,
2. Smt.Jayamma,
2 O.S.No.3813/2001
Major by age,
W/o Gopalappa @ Gopalappa,
Defendants No.1 and 2 are
R/at near Vijaya Bank layout, IIM
post,
Devarachikkanahalli road,
Bilekahalli village,
Bengaluru Vijaya Bank Employees
Housing Co-operative Society Limited
560 076.
3. Smt.Kamalamma,
Major by age,
W/o Late Seenappa,
4. Sri.Ramakrishna,
Since dead represented by legal
representatives
4(a) Smt.Jayamma,
Since deceased by her Lakshmamma
legal representatives 4(b) to 4(e)
4(b) Sri.R.Harish,
Aged about 21 years,
S/o Late C.Ramakrishna,
4(c) Kum.R.Ammayamma,
Aged about 17 years,
D/o Late Ramakrishna,
4(d) Kum.R.Lakshmi,
Aged about 15 years,
D/o late C.Ramakrishna,
4(e) Master R.Nagesh,
Aged about 13 years,
3 O.S.No.3813/2001
S/o Late c.Ramakrishna
4(c) to 4(e) are all residing
At Sy.No.119/2,
Bilekahalli village,
Devarachikkanahalli post,
Near Vijaya Bank apartments,
Bannerghatta road,
Bengaluru - 560 076.
5. Sri.Ravi,
Major by age,
S/o not known to the plaintiffs,
Prop. Shabari Bakery,
R/at Sy.No.119/2,
Near Vijaya Bank layout,
IIM post, Bilekahalli,
Bengaluru - 560 076.
6. Mr.John,
Major by age,
S/o not known to the plaintiffs,
Prop. Maria Tele Links,
R/at Sy.No.119/2,
Near Vijaya Bank layout,
IIM post, Bilekahalli,
Bengaluru - 560 076.
7. Sri.Gunavantha,
Major by age,
S/o not known to the plaintiffs,
Prop. Dayananda Hotel and
Mahalakshmi Agencies,
R/at Sy.No.119/2,
Near Vijaya Bank layout,
IIM post, Bilekahalli,
Bengaluru - 560 076.
4 O.S.No.3813/2001
(By Sri.MER, TVA., Advocate)
Date of institution of suit: 31.05.2001
Nature of suit: Declaration & Injunction
Date of commencement
of recording of evidence: 16.01.2006
Date on which the judgment
was pronounced: 01.09.2016
Duration of the suit: year/s month/s day/s
15 03 01
* * * * *
JUDGMENT
This is a suit filed by the plaintiff for declaration, mandatory injunction and for such other reliefs.
2. In brief the case of the plaintiffs is as under:
That the plaintiffs submit that one Lakshmamma W/o Late Chinnappa @ Chinnanna, represented to the 5 O.S.No.3813/2001 plaintiffs that she was the absolute owner of 1 acre 1 gunta of land and also karab of 3 guntas land in Sy.No.119/2 of Bilekahalli village, Begur hobli, Bengaluru South Taluk, having purchased the same from her vendor as per sale deed dated 9/6/1971. It is further contended that the said Lakshmamma had also represented to the plaintiffs that, out of the above said lands, 26 guntas was acquired by the Vijaya Bank for the purpose of forming layout and she sold an extent of 8 guntas in the remaining land on 2/4/1996 in favour of Nalini R Shetty and she was in possession of the remaining extent of 7 guntas.
3. It is further contended that the said Lakshmamma had offered to sell 4 guntas of land, out of the remaining guntas in Sy.No.119/2 of Bilekahalli village, for a valuable consideration. Accordingly the plaintiffs have jointly purchased the said 4 guntas of land as per sale deed dated 8/11/2000. It is further contended that in order to avoid any future 6 O.S.No.3813/2001 complication, the two sons of Lakshmamma namely Adiraj and Paparaj also joined hands with her in executing the sale deed and also her daughter C.Padma attested sale deed as consenting witness. It is further contended that the said Lakshmamma and her children have put plaintiffs in actual possession of the suit schedule property as on the date of execution of registered sale deed.
4. It is further contended that the plaintiffs are the agriculturists and in order to cultivate the schedule property, they have purchased the same for a valuable consideration. The encumbrance certificate discloses the sale made by the said Lakshmamma in favour of Nalini R Shetty and the plaintiffs consequent upon the said sale deed, the mutation has been effected in favour of the plaintiffs. It is further contended that the RTC extract issued for the year 1997-2001 contains the entries of the acquisition by the Vijaya Bank and the sale deed made in favour of 7 O.S.No.3813/2001 Nalini R Shetty and also plaintiffs. So it is contended that the suit schedule property owned by the said Lakshmamma came to be disposed off in the manner stated above and she has retained only 13 guntas of land out of 1 acre 1 gunta.
5. It is further contended that immediately after the purchase of the lands they fenced the suit schedule property in order to protect the same from the trespassers and encroachers, as they are residing away from the suit schedule property most of the times. It is further contended that the plaintiffs went to schedule property in the month of February 2001 in order to see that whether the suit schedule property has been encroached by any person. At that point of time, they were surprised to see that certain construction were made in the suit schedule property unauthorisedly and immediately they made enquiries that the persons who were in occupation of the said construction, i.e., defendant No.5 to 7 with regard to 8 O.S.No.3813/2001 the unauthorized construction put up thereof. The said defendants informed the plaintiffs that defendant No.1 to 4 have put them in possession of the said construction stating that, they have put up construction on the suit schedule property. Thereafter, the plaintiffs approached the defendants No.1 to 4 with regard to their illegal construction and trespass made in respect of the suit schedule property. But the defendants No.1 to 4 gave evasive reply and also adamant in their attitude and further they refused to demolish the unauthorized construction put up thereof. As such, the plaintiffs left with no other alternate remedy, lodged police complaint on 6/2/2001, but the police authorities failed to take any action as the dispute is of civil nature and advised them to approach the civil court.
6. It is further contended that the plaintiffs again approached the defendants with neighbours and common friends in order to convince them that the 9 O.S.No.3813/2001 encroachment made by them is highly illegal and the construction put up on the suit schedule property is also unauthorized one and the plaintiffs also showed all the documents pertaining to the suit schedule property purchased by them. The defendants are very adamant in their attitude and any amount of advise yield no fruitful result. It is further contended that the defendants No.1 to 4 have made false attempts to deny the title of the plaintiffs. The defendants No.1 to 4 have no manner of right, title or interest in respect of the suit schedule property, but they are rank trespassers who have illegally put up construction and put the other defendants muchless, defendant No.5 to 7 in possession of the same. It is further contended that the defendants are in the habit of denying the title of the plaintiffs and also squatting on the suit schedule property illegally and high-handedly. So they have come up with the present suit seeking for declaration and for possession of the property. It is further contended that the defendant No.1 to 4 have illegally 10 O.S.No.3813/2001 trespassed into the suit schedule property in the month of December 2000, during the absence of plaintiffs and put up unauthorized construction and put other defendants in possession of the construction so put up in the suit schedule property. So they have come up with the present suit seeking for declaration, mandatory injunction and recovery of possession, etc. On these grounds and among other grounds, they have come up with the present suit and accordingly prays for to decree the suit.
7. The suit summons sent by this court was duly served upon the defendant No.1 to 4 and they have appeared before the court through their counsel. The records shows that during the pendency of the present suit, defendant No.4 reported to be dead. So the legal representatives of defendant No.4 were brought on record. So also the records shows that the defendant No.1 to 3 have filed their detailed written statement by denying all the plaint averments. So also 11 O.S.No.3813/2001 the records shows that neither defendant No.4 during his life time nor his legal representatives, inspite of granting sufficient time, failed to file the written statement. Consequently the written statement of D4 / legal representatives of D4 taken as not filed.
8. The suit summons sent by this court was duly served upon defendant No.5 to 7. Inspite of service of summons, they remained absent. Consequently defendant No.5 to 7 have been placed exparte.
9. The defendant No.1 and 2 in their written statement by denying all the plaint averments contended that the vendors of the plaintiffs have no right to execute and register the sale deed in respect of the suit schedule property. As on the date of execution of sale deed, the vendors were not at all in possession and consequently they have not delivered the possession of the suit schedule property to the 12 O.S.No.3813/2001 plaintiffs. It is further contended that the suit is not valued properly and the court fee paid is not correct. It is further contended that the suit schedule property is not at all agricultural land, the same is coming within the limits of Bommanahalli town municipal counsel. The area in which the suit schedule property is situated is fully developed. It is further contended that the plaintiffs also states that there are buildings in the suit schedule property, unless the suit schedule property is valued properly and court fee paid on the land and buildings, the suit cannot be proceeded with, as the plaintiffs failed to produce the certificate extract of RTC or mutation along with the plaint.
10. It is further contended that the land in Sy.No.119/2 of Bilekahalli was joint schedule property of the said Lakshmamma and others including the 1st defendant. The said Lakshmamma, Adiraj and Paparaj have no right to alienate any portion of the land in the said survey number as the same is the joint family 13 O.S.No.3813/2001 property. It is further contended that the alleged sale deeds executed by said Lakshmamma, Adiraj and Paparaj in favour of the plaintiff and others are illegal, void, inoperative and not binding on the 1st defendant as the 1st defendant is one of the son of late Chinnanna. It is further contended that in respect of the land in Sy.No.119 of Bilakahalli, one Shivakumar and Prasanna Kumar, the grand children of said Lakshmamma have filed the suit for partition and separate possession of their shares in the properties shown in the schedule in O.S.No.1164/1995 and in the said suit Lakshmamma is also a party and there was an order of injunction restraining her from alienating the same and the said suit is pending. It is further contended that apart from that another partition suit is filed by one Narayanaswamy and others against 1st defendant herein against Lakshmamma, Kamalamma and others in O.S.No.6711/2001 and that suit is also in respect of the land in Sy.No.119/2 of Bilekahalli apart from other 14 O.S.No.3813/2001 properties and the said suit in O.S.No.1164/1995 was within the knowledge of the plaintiffs herein.
11. It is further contended that the plaintiffs have falsely contended that defendant No.1 to 4 have illegally trespassed upon the suit schedule property in the month of December 2000 and put up unauthorized construction. It is further contended by the defendant No.1 and 2 that they have constructed residential houses and commercial shops in the land in Sy.No.119/1 of Bilekahalli about 15 years back. It is further stated that defendant No.5 to 7 are the tenants of defendants and the said buildings consists of 9 shops and 8 residential houses, bounded on east by Sy.No.55, west by Vijaya Bank colony, north by remaining property in Sy.No.119/1, south by Devarachikkanahalli road and thereafter Sy.No.119/2. It is further contended that as the defendants are in possession and enjoyment of their property as absolute owners, as such, the plaintiffs have no right over the 15 O.S.No.3813/2001 same and the prayer sought by the plaintiffs against the defendants cannot be granted. It is further contended that if the relief is granted as sought by the plaintiff, taking advantage of the same, they may dispossess the defendants from their property, etc. On these grounds and among other grounds, they sought for the dismissal of the suit.
12. Defendant No.3 also filed written statement by denying all the plaint averments. Upon perusal of the written statement filed by defendant No.3 it shows that she has stated the same facts as stated by defendant No.1 and 2 in their written statement. So on the basis of the contention taken by her in the written statement she sought for the dismissal of the suit.
13. Heard the arguments. The learned counsel for the plaintiffs and defendants also filed their written synopsis.
16 O.S.No.3813/2001
14. The learned counsel for the plaintiff in support of his arguments has relied upon the following decisions reported in :
(1) (1995)4 SCC page 572 (2) AIR 1983 SC page 684 (3) ILR 2000 Kar page 1556 (4) AIR 2006 SC page 1971 (5) 2012(5) SCC page 634 (6) 2014 SCR (Civil) page 266
15. The learned counsel for the defendant No.1 and 2 in support of their arguments has relied upon the decision reported in (1) AIR 2015 Kar 139 (2) Certified copy of Gazette dated 4/12/1998.
16. The learned counsel for the defendant No.3 in support of his arguments has relied upon the decision reported in AIR 2010 J&K page 16. 17 O.S.No.3813/2001
17. On the basis of the above rival pleadings of the parties, my learned Predecessor-in-office has framed the following as many as nine issues :
(1) Whether the plaintiffs prove that they are the owners of the suit schedule property ?
(2) Whether the plaintiffs prove that defendant No.1 to 4 illegally trespassed into the suit schedule property during December 2000 in the absence of plaintiffs and had put up constructions ?
(3) Whether the plaintiffs further
prove that defendant No.1 to
defendant No.4 have put
defendant No.5 to 7 in
unauthorized occupation of the
schedule premise ?
(4) Whether the plaintiffs are entitled for declaration sought for ?
(5) Whether the plaintiffs are entitled for mandatory injunction order 18 O.S.No.3813/2001 directing the defendants to demolish the illegal construction in the suit property ?
(6) Whether the plaintiffs are entitled for possession of suit property from the defendants ?
(7) Whether the defendants prove that the suit property was the joint family property of the defendant No.1 and that Lakshmamma could not have sold the suit property to the plaintiffs ?
(8) Whether the defendants prove that the suit is not properly valued and proper court fee is not paid ?
(9) What order ?
18. The plaintiffs in order to establish their case, the plaintiff No.1 himself got examined as PW1 and got marked as many as 19 documents from Ex.P1 19 O.S.No.3813/2001 to Ex.P19 and also got examined one witness as PW2 and closed their side evidence. The defendants in order to establish their case, defendant No.1 himself got examined as DW1 and defendant No.3 got examined herself as DW4 and the defendants got examined two witnesses in support of their case as DW2 and 3 and got marked as many as 52 documents from Ex.D1 to Ex.D52 and closed their side evidence.
19. My answer to the above said issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : In the Affirmative
Issue No.5 : In the Affirmative
Issue No.6 : In the Affirmative
Issue No.7 : In the Negative
Issue No.8 : In the Affirmative
Issue No.9 : As per the final order
for the following:
20 O.S.No.3813/2001
REASONS
20. Issue No.1 to 3 & 7: All these issues are interconnected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
21. The plaintiffs in order to establish their case, the plaintiff No.1 himself got examined as PW1 and filed his detailed affidavit by way of examination-
in-chief, wherein he reiterated all the averments made in the plaint and further on oath stated before the court that one Lakshmamma W/o Late Chinnappa @ Chinnanna was the absolute owner of 1 acre 1 gunta of land and also 3 guntas karab in Sy.No.119/2 of Bilekahalli village, Begur hobli, Bengaluru south taluk. It is further contended that the said Lakshmamma had purchased the said land from her vendor as per sale deed dated 9/6/1972. It is further contended that Lakshmamma represented to them that out of the 21 O.S.No.3813/2001 above said land, an extent of 26 guntas was acquired by Vijaya Bank for the purpose of formation of layout and she sold an extent of 8 guntas on 2/4/1996 in favour of one Nalini R Shetty and she was in possession of the remaining extent of 7 guntas. He further stated that the said Lakshmamma had offered to sell 4 guntas of land out of remaining 7 guntas in Sy.No.119/2 of Bilekahalli village in their favour and they intended to purchase the same and the 2nd plaintiff and himself have purchased the said 4 gutnas of land under sale deed dated 8/11/2000 executed by Lakshmamma and her sons namely Adiraj and Paparaj. He further stated that one C.Padma D/o said Lakshmamma has attested the sale deed as consenting witness and their vendors have put them in possession of the suit schedule property free from all encumbrance as on the date of execution of the sale deed. He further stated that the very RTC and encumbrance certificate for the period 1972 to 1998 and encumbrance certificate from 1996 to 2001 shows 22 O.S.No.3813/2001 that the said Lakshmamma and her children sold 8 guntas of land in favour of Nalini R Shetty and 4 gutnas of land in their favour. So also he stated that the RTC placed before the court also shows 26 guntas of land in Sy.No.119/2 was acquired by Vijaya Bank.
22. He further stated that the said Lakshmamma and her children have also sold the remaining 3 guntas of land in Sy.No.119/2 of Bilekahalli village in favour of one Megharaj Thelaraj as per sale deed dated 20/4/2002. He further stated that in the sale deed their vendor Lakshmamma and her children have clearly recited the sale made by them in favour of Nalini R Shetty to an extent of 8 guntas and in their favour an extent of 4 guntas of land. So he stated that their vendors have disposed off entire extent of 1 acre 1 gunta of land in Sy.No.119/2 of Bilekahalli village as stated above.
23 O.S.No.3813/2001
23. He further stated that they fenced the land to protect the same from trespassers and encroachers as they reside away from the suit schedule property. In the month of February 2001, when he went to the suit property to see whether the fencing made by them was intact, at that point of time, he was surprised to notice that there was some construction made in the suit schedule property unauthorisedly and illegally. He further stated that on enquiry he came to know that they are defendant No.5 to 7 and he was told by them that defendant No.1 to 4 have put them in possession of the said construction stating that they have put up the same. He further stated that though immediately he approached defendant No.1 to 4 with regard to the illegal construction put by them in the suit schedule property, but they gave evasive reply and though he made efforts to convince defendant No.1 to 4 though neighbours and friends, but all his efforts went in vein. He further stated that the defendant No.1 to 4 went to the extent of denying their title, right 24 O.S.No.3813/2001 and interest in respect of the suit schedule property and they are rank trespassers and put up illegal construction in the suit schedule property and put defendant No.5 to 7 in possession of the suit schedule property. He further stated that the defendant No.1 to 4 have illegally trespassed into the suit schedule property in the month of December 2000 and they have started constructions on 10/12/2000 and completed the same and put up defendant No.5 to 7 in possession of the same.
24. He further stated that the defendant No.1 and 2 have falsely contended that the land in Sy.No.119/2 of Bilekahalli was joint family property of the said Lakshmamma and others including the 1st defendant. He further stated that the sale deed dated 9/6/1972 clearly shows that the land measuring 1 acre 1 gunta in Sy.No.119/2 was the self acquired property of Lakshmamma and she was the absolute owner of the same. He further stated that the suits in 25 O.S.No.3813/2001 O.S.No.6711/2001 and O.S.No.1164/1995 have been filed on false and frivolous grounds in collusion and the same is not binding on them. He further stated that they are agriculturists and the suit schedule property is an agricultural land. He further stated that the RTC and mutation in respect of the suit schedule property have also been produced before the court to show that the suit schedule property is an agricultural land, as such, they valued the suit schedule property as an agricultural land and paid court fee accordingly. He further stated that the construction made by defendant No.1 to 4 is unauthorised and illegal one, as such, the plaint schedule property cannot be called as non-agricultural land. It is further contended that till this date the suit schedule property is an agricultural land, as there is no order of conversion obtained or declared by any authority as suit schedule property is agricultural land. He further stated that the defendant No.1 to 4 have no manner of right, title and interest over the plaint schedule property and they are rank 26 O.S.No.3813/2001 trespassers and put up illegal constructions, as such they are liable to demolish the illegal construction and deliver the vacant possession of the suit schedule property to them. In support of his case, he got marked as many as 19 documents from Ex.P1 to Ex.P19. So in view of his above evidence and documents he prays for to decree the suit.
25. The plaintiff in order to establish his case, got examined one witness as PW2, who is none other than the husband of Nalini R Shetty and also the evidence given by him shows that he was the Secretary of Vijaya Bank Employees Housing Co-operative Society Limited, between 1986 to 2000. Upon perusal of his evidence, it shows that he has totally supported the case of plaintiff and also he has specifically stated that the government has left 15 guntas of land in Sy.No.119/2 in favour of owners. So also he stated that their society has not surrendered 15 guntas of land in Sy.No.119/2 in favour of defendant No.1. So 27 O.S.No.3813/2001 upon perusal of the evidence given by PW2, it shows that he has totally supported the case of plaintiff.
26. The defendants in order to establish their case, defendant No.1 himself got examined as DW1 and filed his detailed affidavit by way of examination- in-chief, wherein he reiterated all the averments made in his written statement and further on oath stated before the court that their father by name Chinnanna had two wives names Ammayamma and Lakshmamma. He further stated that his father married the said Lakshmamma after the death of Ammayamma and he was one of the son of Ammayamma and Lakshmamma is having two sons, namely Adiraj and Paparaj. He further stated that his father passed away on 6/6/1975 and during his life time, he has purchased the land in Sy.No.119/2 in the name of Lakshmamma in the year 1972 out of joint family funds. He further stated that the said Lakshmamma was only house wife and during the life 28 O.S.No.3813/2001 time of their father and after the death of their father, they were in possession and enjoyment of the said land along with other properties. He further stated that the land in Sy.No.119/1 of Bilekahalli is the self acquired property of his father. The land in Sy.No.119/1 and 119/2 of Bilekahalli was acquired on behalf of Vijaya Bank Employees Housing Co-operative Society Limited, Bengaluru. The said society, with their consent, formed the layout in the entire extent of 119/2 of Bilekahalli and left 15 guntas of land in Sy.No.119/1. He further stated that in this regard, Lakshmamma and her sons also hand over a letter to him to file it before the village panchayat. He further stated that on 16/3/1991, the said society also issued letter to village panchayat and issued copy of the same to him. Thereafter he constructed a small house in portion of land in Sy.No.119/1, left by the said society. He further stated that he paid tax in respect of the same and the village panchayat assigned No.635/732 to the same. He further stated that subsequently by 29 O.S.No.3813/2001 demolishing the same, by obtaining plan sanction from the village panchayat, he constructed commercial shops and residential building in the year 1994. He further stated that he obtained electricity and water connection to the buildings. He further stated that as the said buildings are coming within the limits of Bommanahalli CMC, he paid tax in respect of the said buildings. He further stated that Bommanahalli CMC registered khatha in his name and defendant No.5, 6 and others were his tenants and they have vacated and new tenants are in the suit schedule property and he himself receiving rents from them.
27. He further stated that in respect of land in Sy.No.119/1 and 119/2 and other properties, one B.S.Shivakumar and others have filed suit for partition against him, Lakshmamma, her sons, Adiraj and Paparaj and others before this court in O.S.No.1164/95 and the said suit is pending consideration. He further stated that apart from that, 30 O.S.No.3813/2001 one Narayanaswamy and others also filed suit for partition and separate possession of their share in the above said lands and other properties against him, Lakshmamma, Adiraj and Paparaj and others in O.S.No.6711/2001 and the said suit is also pending. He further stated that apart from that, the reference made under section 30 and 31 of the Land Acquisition Act in respect of compensation awarded in respect of the above referred survey number is also pending before this court.
28. He further stated that plaintiffs have falsely contended that the society left 15 guntas in Sy.No.119/2. He further stated that Lakshmamma and her sons have no rights to execute sale deeds in favour of the plaintiffs in respect of the suit schedule property, as the same is joint family property. He further stated that by the year 2000 itself, the property lost its agricultural character as the entire area was developed and the same was coming within the limits 31 O.S.No.3813/2001 of Bommanahalli CMC. He further stated that the plaintiffs and her vendors in collusion have created sale deeds in respect of land in Sy.No.119/2 as well as revenue documents were standing in the name of said Lakshmamma by showing the land in Sy.No.119/1, as the entire extent of Sy.No.119/2, the said society formed layout. Taking advantage of the said created documents the plaintiffs have filed the present suit against them just to cause harassment. In support of his case, he got marked as many as 52 documents from Ex.D1 to Ex.D52.
29. The defendants in order to establish their case, the defendant No.4 herself got examined as DW4. Upon perusal of the evidence of DW4, it shows that she has spoken about the facts of the case as stated by DW1.
30. So also the defendants in order to establish their case, got examined two witnesses as DW2 and 32 O.S.No.3813/2001 DW3. Upon perusal of the evidence of the said two witnesses, it shows that who claims to be tenants under the defendants have given evidence supporting the case of defendants.
31. The learned counsel for the plaintiff, during the course of his arguments contended that the plaintiffs have filed the present suit seeking for declaration, mandatory injunction and for such other reliefs. He further stated that one Lakshmamma, W/o Late Chinnappa, represented to the plaintiffs that she was the absolute owner of 1 acre 1 gunta and also kharab of 3 guntas of land in Sy.No.119/2 of Bilekahalli village. He further stated that the said Lakshmamma had purchased the said land from her vendor as per sale deed dated 9/6/1972. In order to substantiate his above contention, he placed his reliance upon the certified copy of the sale deed produced at Ex.P6. He further stated that the said Lakshmamma represented to the plaintiff that out of 33 O.S.No.3813/2001 the above said land, an extent of 26 guntas was acquired by Vijaya Bank for the purpose of formation of layout and she sold an extent of 8 guntas on 2/4/1996 in favour of one Nalini R Shetty and she was in possession of the remaining extent of 7 guntas. In order to substantiate the said aspect, he placed his reliance upon certified copy of the sale deed at Ex.P19. He further stated that the said Lakshmamma had offered to sell 4 gutnas of land out of 7 guntas of Sy.No.119/2 of Bilekahalli village, Bengaluru south taluk in favour of the plaintiff and accordingly the plaintiffs have purchased 4 guntas of land in Sy.No.119/2 on 8/11/2000 as per Ex.P1 sale deed. He further stated that Ex.P1 sale deed was executed in favour of the plaintiffs by Lakshmamma and her two sons Adiraj and Paparaj and her daughter by name Padma attested Ex.P1 sale deed as a consenting witness. He further stated that the very encumbrance certificate produced by the plaintiffs for the period from 1/4/1996 to 2/3/2003 at Ex.P7 goes to prove the 34 O.S.No.3813/2001 factum of purchase of 4 guntas of land in Sy.No.119/2 by the plaintiffs and also the RTC relating to the said survey number discloses 26 guntas in the said survey number was acquired by Vijaya Bank. He further stated that the said Lakshmamma and her children have sold the remaining 3 guntas of land in Sy.No.119/2 in favour of V.Megharaj Thelaraj under sale deed dated 20/4/2002 as per Ex.P8. So he contended that in the manner as stated above, Lakshmamma being the absolute owner of the suit schedule property, sold remaining 15 guntas of land in Sy.No.119/2 in favour of the persons as stated above under registered sale deeds.
32. He further stated that after the plaintiffs purchasing the suit schedule property they fenced the land to protect the same from trespassers and encroachers and when the plaintiffs in the month of February 2001, went to see whether the fencing made by them was intact, at that point, they noticed there 35 O.S.No.3813/2001 was some construction made in the suit schedule property unauthorisedly and illegally. When they enquired the persons therein who are none other than defendant No.5 to 7 herein, the plaintiffs came to know through them that the defendant No.1 to 4 have put them in possession of the said construction stating that they have put up the same. He further stated that though the plaintiffs immediately approached the defendants No.1 to 4 and made all efforts with the help of neighbours and friends to convince defendant No.1 to 4 that the suit schedule property belongs to them, but all their efforts went in vein. He further stated that the defendant No.1 to 4 even went to the extent of denying the title, right and interest of the plaintiffs over the suit schedule property. He further contended that the plaintiffs in the plaint as well as in their evidence have clearly stated that in the month of December 2000, they came to know the defendant No.1 to 4 have illegally trespassed into the suit schedule property and started construction on 36 O.S.No.3813/2001 10/12/2000 and completed the same and put defendant No.5 to 7 in possession of the same illegally and unauthorisedly.
33. He further stated that the plaintiffs were not at all aware of the alleged construction taken by the defendants with regard to the filing of O.S.No.1164/1995 and O.S.No.6711/2001 and the defendants have falsely contended that even though they informed the plaintiffs with regard to the factum of filing the above said suit and inspite of that, the plaintiffs during the pendency of the said suit, purchased the suit schedule property. What he contended that the plaintiffs were not at all aware of the filing of the above said suits and they were not at all informed by any persons with regard to the filing of the said suits. So what he contended that the very documents placed before the court by the plaintiffs as referred above clearly shows the plaintiffs are the absolute owners of the suit schedule property and the 37 O.S.No.3813/2001 defendants No.1 to 4 illegally trespassed into the suit schedule property during December 2000 and put defendant No.5 to 7 in unauthorized occupation of the suit schedule property.
34. The learned counsel for the plaintiffs further by placing his reliance upon the evidence of PW2, who is none other than the Secretary of Vijaya Bank Employees Housing Co-operative Society Limited, between 1986 to 2000, contended that the government has acquired 26 guntas of land from Sy.No.119/2 and deleted 15 guntas of land from the acquisition. He further stated that PW2 is none other than the husband of Nalini R Shetty, in favour of whom Lakshmamma had sold 8 guntas of land out of remaining 15 guntas of land in Sy.No.119/2. So he contended that the every evidence given by PW2 clearly shows he has supported the case of plaintiff and the very oral and documentary evidence placed before the court clearly shows there is sufficient materials on 38 O.S.No.3813/2001 record to grant the relief as sought by the plaintiffs in the present suit.
35. He further contended that it is the contention of the defendants that the entire extent in Sy.No.119/2 was acquired by the concerned authority and no land left in Sy.No.119/2. He further contended that the defendants by producing Ex.D6 contended that no land left in Sy.No.119/2 and the said document shows that 15 guntas of land left in Sy.No.119/1. So far as the said contention, what he contended that the very evidence given by PW2 clearly shows that though he himself has written Ex.D6 letter, but in his cross-examination, he has stated that he do not remember under what circumstances he has written Ex.D6 and also stated that their society has not surrendered 15 guntas of land in Sy.No.119/1 in favour of defendant No.1. So what he contended that the very above evidence given by PW2 clearly shows 39 O.S.No.3813/2001 that the document produced by the defendants at Ex.D6 would not come to the help of defendants.
36. In order to substantiate his contention that in Sy.No.119/2, only 26 guntas of land was acquired by the authority, he placed his reliance upon Ex.P16 preliminary and final notification issued by the concerned authorities. He further by placing his reliance upon the said documents contended that the very preliminary notification placed before the court shows that in Sy.No.119/2, though it was mentioned entire extent was acquired, but the final notification issued in respect of the said survey number shows that only 26 guntas of land acquired by the authority in Sy.No.119/2 and the remaining extent of 15 guntas is with the owner of the land, i.e., Lakshmamma and subsequently, she disposed remaining 15 guntas of land as stated above. He further in order to substantiate his contention, i.e., to say, only 26 guntas was acquired by the authority in Sy.No.119/2, he 40 O.S.No.3813/2001 placed his reliance upon Ex.P15, i.e., award passed by the Land Acquisition Authority. What he contended that the very order passed by the Acquisition Authority as per Ex.P15, it clearly shows that they have awarded compensation only in respect of 26 guntas of land in Sy.No.119/2. So what he contended that the above said documents clearly goes to show that the vendors of the plaintiffs retained 15 guntas of land and subsequently, she disposed in the manner as stated above and the plaintiffs have also purchased 4 guntas of land from Lakshmamma and her children. So what he contended that the very oral and documentary evidence adduced and produced on behalf of the plaintiffs clearly goes to show that they are the absolute owners of the suit schedule property and the defendants No.1 to 4, illegally trespassed into the suit schedule property, during December 2000 and put up unauthorized construction and put defendant No.5 to 7 in unauthorized occupation of the suit schedule property. So in view of his above arguments, he urged 41 O.S.No.3813/2001 to answer issue No.1 to 3 in the Affirmative and issue No.7 in the Negative.
37. Learned counsel for the defendant, during the course of his arguments, contended that the father of the defendant No.1 had two wives namely Ammayamma and Lakshmamma and defendant No.1 is the son of 1st wife Ammayamma and after her death, Chinnanna married Lakshmamma and she had two sons and a daughter by name Adiraj and Paparaj and Padma. He further contended that the father of defendant No.1 was died in the year 1975 and during his life time, he purchased the land in Sy.No.119/2 in the name of Lakshmamma out of joint family funds in the year 1972. He further contended that the said Lakshmamma is the house wife and during the life time of the father of defendant No.1 and after his death all were in joint possession and enjoyment of the suit schedule property along with other properties. He further contended that the land in Sy.No.119/1 of 42 O.S.No.3813/2001 Bilekahalli is the self acquired property of the father of defendant No.1. He further stated that the land in Sy.No.119/1 and 119/2 of Bilekahalli was acquired on behalf of the Vijaya Bank Employees Housing Co- operative Society Limited, Bengaluru and the said society with the consent of defendants formed a layout in the entire extent of Sy.No.119/2 of Bilekahalli and left 15 guntas of land in Sy.No.119/1. He further contended that in fact Lakshmamma and her sons handed over a letter to defendant No.1 to file it before the village panchayat and the society also issued a letter on 16/3/1991 to the village panchayat wherein the defendant No.1 constructed a small house in a portion of the land in Sy.No.119/1 left by the society. He further contended that the defendant No.1 himself paid tax to the village panchayat and subsequently, by demolishing the same, by obtaining plan sanction from the village panchayat, he constructed commercial shops and residential buildings in the year 1994. He further contended that the defendant No.1 also took 43 O.S.No.3813/2001 electricity and water connection to the said buildings. He further contended that since the said buildings are coming within the limits of Bommanahalli CMC, defendant No.1 paid tax in respect of the said building to the Bommanahalli CMC and the defendant No.5 to 7 were tenants in the building and defendant No.1 was receiving the rents from them.
38. He further contended that in respect of land in Sy.No.119/1 and 119/2 one B.S.Shivakumar and others have filed suit for partition against defendant No.1 Lakshmamma and her sons and others in O.S.No.1164/1995. So also one Narayanaswamy and others filed suit for partition against defendant No.1 Lakshmamma and her sons in O.S.No.6711/2002 and both the suits are pending consideration. So also, he contended that reference made under section 30 and 31 of the Land Acquisition Act in respect of the compensation award in respect of Sy.No.119/1 and Sy.No.119/2 is also pending consideration. So what 44 O.S.No.3813/2001 he contended that Lakshmamma had absolutely no exclusive right over the land in Sy.No.119/2 and she herself and her sons have no right to alienate the property in favour of any third persons. He further contended that the very evidence given by DW1 clearly shows about the factum of Sy.No.119/2 is their joint family property and the father of defendant No.1 Chinnanna purchased the said property in the name of Lakshmamma. He further contended that the evidence given by DW2 and 3, who are the tenants under defendant No.1 also clearly shows the defendant No.1 to 4 are the owners and they are tenants under them. He further contended that infact, defendant No.3 informed the plaintiff before they purchasing the suit property from Lakshmamma with regard to the pending of partition suit in O.S.No.1164/1995 and O.S.No.6711/2001 in respect of suit schedule property and other properties and inspite of that the plaintiffs have purchased the suit property. So he contended that whatever the transaction that had taken place in 45 O.S.No.3813/2001 between the plaintiffs and Lakshmamma is hit by the principles of lis pendens.
39. He further contended that the entire extent of land in Sy.No.119/2 was acquired by the Acquisition Authority which is very evident from the documents produced by the plaintiffs themselves at Ex.P16. So he contended that when the entire extent in the said survey number was acquired by the Acquisition Authority, the contention of the plaintiffs that 15 guntas of land is left in Sy.No.119/2 cannot be accepted. He further contended that the plaintiffs in order to establish their case, got examined one witness as PW2, who is none other than the husband of Nalini R Shetty and also Secretary of Vijaya Bank Employees Housing Co-operative Society Limited between 1986 to 2000. He further contended that the evidence given by PW2 clearly shows that his evidence is more helpful to the case of defendants rather than to the case of plaintiffs. What he contended that, PW2 during the 46 O.S.No.3813/2001 course of his cross examination, admitted that he himself has issued Ex.D6 and upon reading of the said document, it shows that no land left in Sy.No.119/2, muchless 15 guntas of land as claimed by the plaintiff. So what he contended that the plaintiffs by showing the boundaries of land situated in Sy.No.119/1 claiming that it is their property and it would come in Sy.No.119/2. So he contended that absolutely no acceptable evidence has been placed before the court by the plaintiff to accept the case set up by the plaintiffs.
40. He further contended that the plaintiffs have not produced any documents to show that Sy.No.119/2 was purchased on her own and the defendant No.1 in his evidence has stated that Lakshmamma is the house wife. So he contended that when Lakshmamma is not the earning member, the question of she purchasing the land in Sy.No.119/2 on her own, does not arise at all and inference can be 47 O.S.No.3813/2001 drawn that she being the 2nd wife of Chinnanna, he has purchased the said property in her name. So he contended that the said Lakshmamma had absolutely no independent right over the said property and it is the joint family property and in order to substantiate his contention, he placed his reliance upon Ex.D47 and Ex.D48, i.e., the judgment and decree passed in O.S.No.1164/1995. He further contended that the defendant No.1, long back put up construction in the suit schedule property and there were shops and residential buildings and they were given on rental basis to various persons, muchless, defendant No.5 to
7. He further contended that the very documents produced by the defendants clearly shows that the defendant No.1 himself got electricity connections and water connections to the buildings constructed by him. So also he contended that the defendant No.1 was paying tax to the concerned authorities. When things stood like so, the say of the plaintiffs that the defendant No.1 to 4 trespassed into the suit property 48 O.S.No.3813/2001 in the year 2000 and put up construction and they have put defendant No.5 to 7 in unauthorized occupation of the suit schedule property does not arise at all. So he contended that number of documents produced by the defendants coupled with the evidence of DW1 to DW4 clearly goes to show that the defendants have succeeded to establish the defence taken by them in their written statement and the evidence placed before the court by the plaintiff clearly shows that they have failed to prove their stand. So in view of his above arguments, he urged to answer issue No.1 to 3 in the Negative and issue No.7 in the Affirmative.
41. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records, written synopsis and also the decisions as relied upon by the learned counsels for the parties. Admittedly this is a suit filed by the plaintiffs against the defendants seeking the relief of 49 O.S.No.3813/2001 declaration, mandatory injunction and for such other reliefs. Upon hearing the rival contentions, it shows that absolutely there is no much dispute with regard to the factum of Lakshmamma is the 2nd wife of late Chinnanna. So also it is an undisputed fact that defendant No.1 is the son of Chinnanna through his 1st wife. So also, it is an undisputed fact that Lakshmamma, i.e., the 2nd wife of Chinnanna had two sons and a daughter by name Adiraj, Paparaj and Padma. So also, it is an undisputed fact that land in Sy.No.119/1 is the property of Chinnanna.
42. It is the specific contention of the plaintiffs that land in Sy.No.119/2 is the property of Lakshmamma and it contains total extent of 1 acre 1 gunta and also 3 guntas karab. The plaintiffs in order to substantiate the said aspect, they have produced certified copy of the sale deed dated 9/6/1972 at Ex.P6. Upon perusal of the said document, it shows that, no where in the said document, it was mentioned 50 O.S.No.3813/2001 that Sy.No.119/2 was purchased by late Chinnanna in the name of the 2nd wife Lakshmamma and the sale consideration amount was paid by Chinnanna. So it is needless to say that this document, i.e., Ex.P6 goes to falsify the contention of the defendants that Sy.No.119/2 was purchased by Chinnanna in the name of his 2nd wife Lakshmamma. The defendants though contended that Sy.No.119/2 was purchased by Chinnanna in the name of Lakshmamma, but in order to substantiate the said aspect, not a scrape of paper has been placed before the court by them. On the contrary, DW1 during the course of his cross examination, at page No.11, in the middle portion, he has admitted as under:
"There is no document with me to show that the land in Sy.No.119/2 was purchased in the name of Lakshmamma by my father out of joint family funds."
43. Looking into the above evidence given by DW1 in the cross-examination, it can be said that 51 O.S.No.3813/2001 except the oral say of the defendants, no acceptable documentary evidence has been placed before the court in proof of their contention. Under such circumstances, it is needless to say that whatever contention taken by the defendants that Sy.No.119/2 was purchased by the father of defendant No.1 late Chinnanna in the name of Lakshmamma cannot be accepted.
44. It is the contention of the defendants that Lakshmamma and her children have absolutely no right to alienate or transact with the suit property, as the suit property is a joint family property and in respect of the same, one B.S.Shivakumar filed O.S.No.1164/1995 against defendant No.1, Lakshmamma and her children and others and another suit in O.S.No.6711/2001 filed by Narayanaswamy against the 1st defendant, Lakshmamma and her children and others and the said suits are pending consideration. The documents 52 O.S.No.3813/2001 placed before the court shows that O.S.No.1164/1995 was decreed in part. The copy of the judgment and decree passed in the said suit produced by the defendants at Ex.D47 and Ex.D48. No doubt, admittedly the said suit is a partition suit, so also, the property in dispute in the present suit, i.e., Sy.No.119/2 is also one of the property included in the said suit. Upon perusal of Ex.D47 and Ex.D48, it shows that the suit filed by the plaintiff in the said case was dismissed in respect of the land in Sy.No.119/2. The findings given by the court in the said suit also clearly shows that the land in Sy.No.119/2 is not the joint family property and it is the absolute property of Lakshmamma. It is the contention of the defendants that during the pendency of the said suit, Lakshmamma sold the said property in favour of plaintiffs and also it is their specific contention that they have intimated the plaintiffs with regard to the pending of partition suit in respect of the suit schedule property as referred above. The evidence 53 O.S.No.3813/2001 given by DW4 who is defendant No.3 in the present case in her evidence she has stated that she has informed the plaintiff about the factum of pending of above said partition suit in respect of the suit property and inspite of that, the plaintiffs have purchased the same. So the learned counsel for the defendant contended that whatever the transaction that had taken place in between the plaintiff and Lakshmamma is hit by the principles of lis pendense. So far as the said contention taken by the defendants, it can be said that though they have contended like so, i.e., to say, they intimated the plaintiff with regard to the pending of partition suit as referred above, in respect of the suit schedule property, but in order to substantiate the said aspect, no acceptable evidence has been placed before the court. The learned counsel for the defendant during the course of cross-examination of PW1, tried to elicit from the mouth of PW1 that they were informed by them with regard to the pending of partition suit in respect of the suit schedule property, 54 O.S.No.3813/2001 but they failed in their attempts. When that would be the case, and in the absence of acceptable materials, the contention of the defendants that the transaction that had taken place between the plaintiffs and Lakshmamma is hit by the principles of lis pendense cannot be accepted. So looking into the available evidence on record, it can be said that the defendants have failed to prove the suit property was joint family property of defendant No.1 and Lakshmamma had no right to sell the same in favour of the plaintiff.
45. As it is already discussed above, the very document produced by the plaintiffs at Ex.P6, certified copy of the sale deed dated 9/6/1972, executed by Muniyappa in favour of the vendor of plaintiffs, i.e., Lakshmamma, clearly shows that Lakshmamma has got the absolute right over the land in Sy.No.119/2. The other documents produced by the plaintiffs at Ex.P2 to Ex.P5 and Ex.P7, i.e., mutation register extract, RTC and encumbrance certificate respectively 55 O.S.No.3813/2001 also clearly goes to show the right of plaintiffs vendor in respect of the land in Sy.No.119/2.
46. It is the contention of the plaintiffs that the entire extent of land in Sy.No.119/1 and only 26 guntas of land in Sy.No.119/2 acquired by the concerned authority. It is the contention of the plaintiffs that the total extent in Sy.No.119/2 is 1 acre 1 gunta and 3 guntas karab. So total 1 acre 4 guntas. It is the contention of the plaintiffs that after acquiring 26 guntas in Sy.No.119/2, 15 guntas left in the said survey number and the same was with Lakshmamma. The contention of the defendants is that the entire extent in Sy.No.119/2 was acquired and no land left in the said survey number, muchless 15 guntas as claimed by the plaintiff and it is their contention that in Sy.No.119/1, 15 guntas land was left by the acquiring authority wherein they have put up construction, i.e., shops and residential houses and given on rental basis. So also, it is the contention of 56 O.S.No.3813/2001 the defendants that the plaintiffs by giving boundaries relating to Sy.No.119/1, contending that the suit schedule property is comes under Sy.No.119/2.
47. In the light of the above rival contention, upon perusal of the documentary evidence on record, particularly Ex.P16, i.e., gazette notification dated 1/6/1985, wherein preliminary notification issued under section 4(1) and final notification issued under section 6(1) of Land Acquisition Act has been placed before the court. Upon perusal of the said document, it shows that in the preliminary notification, entire extent of land in Sy.No.119/1 and entire extent of land in Sy.No.119/2 was shown as acquired by the Acquiring Authority. Upon perusal of final notification issued under section 6(1) of Land Acquisition Act, wherein it shows that even in the final notification also entire extent of land in Sy.No.119/1 was acquired by the Acquiring Authority, whereas in Sy.No.119/2, it was shown that only 26 guntas acquired by the 57 O.S.No.3813/2001 Acquiring Authority, that means to say, the remaining 15 guntas is vests with the owner of the land only.
48. Admittedly both in preliminary and final notification at Ex.P16, the owner of Sy.No.119/2 shown as Lakshmamma. So, looking into Ex.P16, it can be said that the entire extent of land in Sy.No.119/2 was not acquired by the Acquiring Authority and only 26 guntas was acquired by Vijaya Bank and remaining 15 guntas vests with the original owner, i.e., Lakshmamma. Admittedly the D Notification was not issued by the government. When things stood like so, the say of the defendants that entire extent of land in Sy.No.119/2 acquired by the Acquiring Authority cannot be accepted.
49. Upon perusal of the evidence given by DW1, during the course of his cross examination at page No.11, 6th line, from the top, wherein the evidence given by him clearly shows that Lakshmamma is the 58 O.S.No.3813/2001 absolute owner of the suit schedule property. At this juncture, it would be relevant to quote the said portion of evidence given by DW1, which reads as under:
"The land bearing Sy.No.119/2 was purchased by my aunt Lakshmamma during the year 1972. The khatha and pahani in relation to the land bearing Sy.No.119/2 is standing in the name of said Lakshmamma".
50. The above evidence clearly goes to falsify the contention of the defendants that Lakshmamma is not the owner of the suit schedule property. As it is already stated above, though the defendants contended that the entire extent in Sy.No.119/2 was acquired by the Acquiring Authority, but the documents referred as above, i.e., Ex.P16, clearly shows that in the final notification the Acquiring Authority acquired only 26 guntas of land in Sy.No.119/2. The above said aspect has been clearly admitted by DW1, during the course of his cross 59 O.S.No.3813/2001 examination, at page No.9, last portion, which reads as under:
"It is true that the land to the extent of 1 acre 26 guntas in Sy.No.119/1 was acquired by Vijaya Bank Employees Housing Co- operative Society Limited during the year 1985."
51. So also DW1, during the course of his cross examination, at page No.12, in the middle portion admitted as under:
"Vijaya Bank Employees Housing Co- operative Society Limited had formed a layout on various survey numbers including the land Sy.No.119/2 measuring 1 acre 26 guntas."
52. So also DW1, during the course of his cross examination, at page No.12 in the 1st para, at 1st three lines admitted as under:
"The Land Acquisition Officer had awarded compensation for having acquired the land to the extent of 1 acre 26 guntas 60 O.S.No.3813/2001 including 3 guntas karab land in Sy.No.119/1."
53. So also DW1 during the course of his cross examination at page No. 23 admitted as under:
"My aunt Lakshmamma was having the property in Sy.No.119/2 of Bilekahalli village. The land to the extent of 1 acre 4 guntas was standing in the name of Lakshmamma in the said survey number. It is true that the government had published notification for acquisition of land in Sy.No.119/1 and Sy.No.119/2. The land to the extent of 1 acre 4 guntas of land in Sy.No.119/2 was acquired by the government under the said Notification. It is true that the government had taken possession of the property to the extent of 26 guntas in Sy.No.119/2."
54. Looking into the above evidence given by DW1, during the course of his cross examination, clearly goes to falsify the entire stand taken by the defendants that entire extent of land in Sy.No.119/2 61 O.S.No.3813/2001 was acquired by the Acquiring Authority and not a single inch of land left in the said survey number. Apart from that, the very document produced by the plaintiffs at Ex.P15, i.e., the award passed by the concerned Acquiring Authority shows that the Acquiring Authority awarded compensation in respect of Sy.No.119/1 to the extent of acquired portion of 1 acre 26 guntas and in Sy.No.119/2 to the extent of 26 guntas. The very document produced by the plaintiff at Ex.P15 and 16 clearly goes to falsify the entire case of the defendants. No doubt the defendants have produced number of documents like electricity bills, water bills and tax paid receipts. On the basis of those documents, whatever the stand taken by the defendants cannot be accepted and it is needless to say that those documents would not goes to support the stand taken by the defendants.
55. Another important aspect and also why a doubt may arises to believe the stand taken by the 62 O.S.No.3813/2001 defendants is that the very evidence given by DW1 in the cross-examination shows that wherein he has stated that house bearing No.1 was allotted to him by the Vijaya Bank Employees Housing Co-operative Society Limited. When layout has been made for the employees of Vijaya Bank, it is needless to say that the society would not go to allot site other than the members of the society. The said aspect has been admitted by DW1 during the course of his cross examination at page No.8 2nd para in the middle portion which reads as under:
"I am having document to show that I am residing in the house bearing No.10. My house comes within the limits of Vijaya Bank layout. Vijaya Bank Employees Housing Co- operative Society Limited had allotted the said property to me. The site allotted to me measures east to west 75 feet, north to south 80 feet. The said property was allotted in my favour during the year 1982 earlier to that year, I was residing in the same house bearing No.10. I am in the custody of the allotment letter for having allotted the 63 O.S.No.3813/2001 property by Vijaya Bank Employees Housing Co-operative Society Limited in my favour. There is no sale deed executed by the Vijaya Bank Employees Housing Co-operative Society Limited in my favour. I am not the member of the above said housing society."
56. DW1 again during the course of his cross examination at page No.17 in the middle portion he has admitted as under:
"It is true that the land in Sy.No.119/2, measuring 26 guntas was acquired by the Acquiring Authority and the reference is pending on the file of the court in respect of the said extent only. It is true that the remaining land measuring 15 guntas in Sy.No.119/2 was not acquired by the concerned authority for any purpose."
57. Looking into the above evidence given by DW1 clearly goes to show that the defendants have utterly failed to prove the stand taken by them in their written statement and even the defendants have not 64 O.S.No.3813/2001 produced the so called allotment letter by the Vijaya Bank Employees Housing Co-operative Society Limited as stated by DW1 in his evidence as referred above.
58. The learned counsel for the defendant, during the course of his arguments, much argued upon Ex.D6. Admittedly the said document issued by PW2 herein and he also admitted his signature in the said document. As it is already stated above, PW2 in his cross-examination, he has stated that he is unable to say, under what circumstances, he has issued the said document and also stated that the government has left 15 guntas of land in Sy.No.119/2 in favour of owner. The contention of the learned counsel for the defendants is that the contents of para No.2 of Ex.D6 clearly goes to show that PW2 himself has written Ex.D6, by saying that while making a layout in consent with the concerned authorities, they have left 15 guntas in Sy.No.119/1 instead of Sy.No.119/2. So on the basis of the contents of the said portion, the 65 O.S.No.3813/2001 learned counsel for the defendants contended that 15 guntas of land is not left in Sy.No.119/2. No doubt, upon perusal of Ex.D6 at para No.2, it was stated by PW2, as referred above, and also it is already stated about PW2, in his cross-examination, stated, he is unable to say, under what circumstances, he has issued such a letter. Apart from that, even for a moment assumed that Ex.D6 was written by PW2, like so, but the oral and documentary evidence placed before the court as discussed above, clearly shows the entire extent of land in Sy.No.119/1, i.e., 1 acre 26 guntas was acquired by the Acquiring Authority and though entire extent in Sy.No.119/2 was shown as acquired by the Acquiring Authority, but upon perusal of final notification under section 6(1) of Land Acquisition Act, produced at Ex.P16 which shows that finally the acquiring authority acquired only 26 guntas and even the said fact has been admitted by DW1 during the course of his cross examination as referred above. Under such circumstances, it is needless to say 66 O.S.No.3813/2001 that Ex.D6 would not come to the aid of defendants. Apart from that, another important aspect to be taken note of here is that, even for a moment, assumed that PW2 issued Ex.D6 in such a fashion, on that basis, it cannot be possible to accept the contents of the said document, as because PW2 is not the Acquiring Authority. So by taking into consideration the oral and documentary evidence as discussed above, it can be said that whatever the contentions taken by the defendants cannot be accepted.
59. As it is already discussed above in detail that 15 guntas of land left in Sy.No.119/2 and as admitted by DW1 remaining 15 guntas in Sy.No.119/2 was with Lakshmamma only and subsequently out of 15 guntas, she sold 8 guntas of land in Sy.No.119/2 in favour of Nalini R Shetty, who is none other than the wife of PW2. The plaintiffs in order to substantiate the said aspect, produced certified copy of the sale deed at Ex.P19 dated 2/4/1996. The plaintiffs in order to 67 O.S.No.3813/2001 substantiate their contention that Lakshmamma along with her sons Adiraj and Paparaj sold 4 guntas of land in their favour produced Ex.P1 sale deed dated 8/11/2000 and upon perusal of the said document, it shows that the daughter of Lakshmamma by name Padma put her signature as a consenting witness. So also the plaintiffs in order to prove the factum of remaining 3 guntas of land was disposed off by Lakshmamma, they have produced the certified copy of sale deed at Ex.P8 executed by Lakshmamma, Adiraj and Paparaj in favour of Megharaj Thelraj. So the above documents produced by the plaintiffs clearly shows how Lakshmamma being the absolute owner of remaining 15 guntas in Sy.No.119/2 was disposed off by her. There is sufficient materials on record to show that the plaintiffs by virtue of Ex.P1 sale deed executed by Lakshmamma and her sons, they became the absolute owners and also the evidence on record clearly shows the defendant No.1 to 4 have illegally trespassed into the suit schedule property in the 68 O.S.No.3813/2001 month of 2000 and put up construction, and illegally put defendant No.5 to 7 in the suit property. The defendants in support of their case, got examined two witnesses as DW2 and DW3, who claims to be the tenants under them. Looking into the evidence given by the said two witnesses, it can be said that, their evidence, in no way, it would goes to helpful to the case of defendants. So also, upon perusal of the evidence given by DW4, who is none other than defendant No.3 herein, in no way, it would goes to helpful to their case.
60. On the contrary, the very evidence given by DW4, during the course of her cross examination at page No.12, last portion, she pleaded her ignorance with regard to the factum of Lakshmamma and her sons have sold 4 guntas in Sy.No.119/2 to the plaintiff on 8/11/2000 and that they have sold 3 guntas in Sy.No.119/2 on 20/4/2000 to Megharaj Thelaraj. So, upon perusal of the evidence given by DW4, it can be 69 O.S.No.3813/2001 said that she does not know anything about the truth of the matter. So also, though DW4 in her evidence stated that BDA has left 15 guntas without acquisition in Sy.No.119/1 and have executed documents in her favour, but admittedly, no such document has been placed before the court. Apart from that the above evidence given by PW4 is quite contrary to the evidence given by DW1. So, looking into the oral and documentary evidence on record, this court is of the opinion that the plaintiffs have succeeded to prove issue No.1 to 3 and defendants have failed to prove issue No.7. Accordingly issue No.1 to 3 are answered in the Affirmative and issue No.7 is answered in the Negative.
61. Issue No.8: The defendants in their written statement contended that the suit is not properly valued and court fee paid is insufficient. The learned counsel for the defendants during the course of his arguments contended that the suit schedule property 70 O.S.No.3813/2001 is not at all agricultural land and the same is coming within the limits of Bommanahalli town municipal council. He further contended that the suit schedule property where it is located is fully developed. He further contended that the plaintiffs have admitted that there are buildings in the suit schedule property and also admitted that now the suit schedule property comes within the jurisdiction of BBMP. So he contended that the suit schedule property as on the date of filing the suit is not an agricultural land. When that would be the case, the suit of the plaintiff has to be valued on the basis of the market value as on the date of filing the suit and on the basis of the same, they are required to pay the court fee. He further contended that the evidence given by PW1, during the course of his cross examination, also shows the suit schedule property where it is located is a well developed area and it comes within the purview of BBMP. When that would be the case, and as on the date of the filing the suit, the suit schedule property 71 O.S.No.3813/2001 was not an agricultural land, the plaintiffs are bound to pay the court fee on the basis of the market value of the suit schedule property as on the date of filing the suit.
62. He further contended that it is irrelevant to take note whether any conversion order with regard to the said aspect, when the materials on record shows the suit schedule property is not an agricultural land. In support of his arguments, he has relied upon the decision reported in AIR 2015 Kar page 139.
63. So also, the learned counsel for the defendants in order to substantiate his contention, i.e., to say, as on the date of filing the suit, the suit property is not an agricultural land, he has produced the certified copy of the gazette dated 4/12/1998 and by placing his reliance upon the said document, he submitted that the said document clearly shows the suit schedule property is not an agricultural land and 72 O.S.No.3813/2001 as on the date of issuing the notification dated 4/12/1998, the value of the property per square feet in Bilekahalli was Rs.150/-. So he contended that on the basis of the said rate, the plaintiffs are required to pay the court fee. So he contended that the plaintiffs have not properly valued the suit and the court fee paid by them is insufficient. So in view of his above arguments, decision and gazette notification, he urged to answer issue No.8 in the Affirmative.
64. On the contrary, the learned counsel for the plaintiff, during the course of his arguments, contended that the plaintiffs are agriculturists and the suit schedule property is an agricultural land. He further contended that the RTC and mutation in respect of the suit schedule property also shows that the suit schedule property is an agricultural land. So he contended that the plaintiffs have valued the suit as agricultural land and accordingly paid the required fee. So in view of his above arguments, he urged to reject 73 O.S.No.3813/2001 the contention taken by the learned counsel for the defendants.
65. In the light of the arguments canvassed by the learned counsel for the plaintiffs and defendants, I have gone through the records and also the decision and notification relied upon the learned counsel for the defendants. It is the contention of the plaintiffs that they are agriculturists and suit schedule property is an agricultural land and the very RTC and mutation relating to the suit schedule property shows that the suit schedule property is an agricultural land. It is the contention of the learned counsel for the defendant that the very gazette notification placed before the court which was issued in the year 1998 shows that the suit schedule property is not an agricultural land and the evidence on record also shows the suit schedule property where it is located, is well developed and as on the date of issuance of gazette notification dated 4/12/1998 the rate per square feet in Bilekahalli 74 O.S.No.3813/2001 was Rs.150/-. So he contended that on the basis of the said rate, the plaintiffs are required to pay the court fee in respect of the extent claimed by them.
66. In the light of the above rival contentions, upon perusal of the evidence on record, it shows that PW1, during the course of his cross examination, at page No.12 in the middle portion, though he has denied that the suit schedule property is not an agricultural land, but subsequently she has admitted as under:
"It is true that the roads have been formed in Sy.No.119/2 during the year 2000. I do not know that the said roads were formed by the above society. The persons in whose favour the sites have been allotted in the said survey number have constructed the houses. The suit schedule property and the surrounding area comes within the limits of Bommanahalli City Municipal Council."75 O.S.No.3813/2001
67. Again PW1 during the course of his cross examination at page No.21, last two lines, wherein he has admitted as under:
"It is true to suggest that now the suit property comes within BBMP limits."
So also the evidence given by PW1 during the course of his cross examination it shows that so many buildings have come up in the area where the suit schedule property is located. So when that would be the case, the say of the plaintiffs cannot be accepted that till this date, the suit schedule property is an agricultural land. Absolutely there is no convincing evidence to accept the say of the plaintiffs that the suit schedule property is an agricultural land.
68. The learned counsel for the defendants has produced the certified copy of the gazette notification dated 4/12/1998. Upon perusal of the same, it shows that in the year 1998 itself Bilekahalli notified that it comes within the limits of Bommanahalli CMC. As it is 76 O.S.No.3813/2001 already stated above, even PW1 in her cross- examination admitted the suit schedule property comes within the limits of Bommanahalli CMC. So also upon perusal of the gazette notification, it shows that as on the date of issuing said notification in the year 1998, the rate per square feet in Bilekahalli was shown as Rs.150/-, whereas the present suit is filed in the year 2001. When in the year 1998 itself the very gazette notification issued by the government shows that in the year 1998 itself the suit schedule property where it is located comes within the Bommanahalli CMC, it cannot be possible to say that the suit schedule property is an agricultural land. On the other hand, the very gazette notification issued in the year 1998 itself shows that the suit schedule property is no more an agricultural land. When that would be the case, the plaintiffs are required to pay the court fee on the basis of the market value of the suit schedule property as on the date of filing of the suit. But admittedly the plaintiffs have not paid the court fee on 77 O.S.No.3813/2001 the said basis. The contention of the learned counsel for the plaintiff that the defendants have not produced any order issued by the concerned authorities to show that the suit schedule property where it is located was converted from agricultural to non-agricultural land. So far as the said contention of the learned counsel for the plaintiffs, it can be said that when the materials placed before the court shows that the suit schedule property lost the character of agricultural land, it is immaterial whether there is any conversion order is there or not. In this regard, it would be useful to refer the decision relied upon by the learned counsel for the defendants reported in AIR 2015 Kar 139 between Vijaya Lakshmi Vs. Ugama Bai and another, wherein it was held by their lordships as under:
"Karnataka Court Fees and Suit Valuation Act (16 of 1958) section 7(2)(A), 24(B), 26(C) -Karnataka Land Revenue Act (12 of 1964), section 80, 159 - suit for declaration and injunction - court fee - disputed agricultural land situated 78 O.S.No.3813/2001 within municipal limits - would not be governed by Land Revenue Act - land not assessable to land revenue payable to government - court fees to be computed by applying guide line value prescribed by Karnataka Government Act and not on the basis of Land Revenue Movables."
69. Again there lordship at para No.15 of the above said judgment observed as under:
"In view of the said ruling, it is clear that Land Revenue Act ceases to apply where the agricultural lands are included in the extended Corporation limits irrespective of the fact that agricultural lands are converted into non-agricultural purpose or not".
70. Looking into the dictum laid down by their lordship in the above decision, it can be said that the said decision is directly applicable to the present case in hand. As it is already stated above, PW1 herself in her cross-examination admitted that the suit schedule 79 O.S.No.3813/2001 property comes within Bommanahalli CMC and defendants by trespassing into the suit schedule property and by putting up illegal construction therein have paid tax to the CMC, which is evident from Ex.D10 to Ex.D16. So by considering all these aspects, it can be said that the suit property lost the character of agriculture as on the date of filing of the suit. As it is already stated above, the gazette notification issued by the government in the year 1998, wherein it was shown the rate per square feet in Bilekahalli was Rs.150/-. When that would be the case, the plaintiffs are required to pay the court fee on the basis of the said rate in respect of the property claimed by them. So by considering the over all facts and circumstances of the case and in the light of the dictum laid down by their lordship in the above decision and also the gazette notification issued in the year 1998, this court is of the opinion that the plaintiff has not properly valued the suit and court fee paid by them is insufficient. For the foregoing reasons and 80 O.S.No.3813/2001 discussions issue No.8 for consideration is answered in the Affirmative.
71. Issue No.4, 5 and 6: All these issues are interconnected, therefore they have been taken together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
72. In view of my findings to issue No.1 to 3 and issue No.7, the plaintiffs are entitled for the relief of declaration, mandatory injunction and possession. The defendants are directed to demolish the illegal construction put up by them on the suit property and hand over possession of the same to the plaintiffs, subject to payment of court fee as discussed in issue No.8. Accordingly issue No.4 to 6 are answered in the Affirmative.
73. Issue No.9: In view of my findings to the above issues, the plaintiffs are entitled for the reliefs as 81 O.S.No.3813/2001 sought by them, provided the plaintiffs paid the court fee as discussed in issue No.8. Upon perusal of the records, it shows that after framing of the issues, issue No.8 was not ordered to treat as a preliminary issue. So also, the records shows that the defence counsel has not pressed for treating the said issue as preliminary issue and also to consider the said issue before considering other issues. Section 11 of the Karnataka Court Fees and Suit Valuation Act, 1958, says about the "decision as to proper court fee in courts". In the present case, the records shows that there was no opportunity for the plaintiffs to pay the court fee at the earliest point of time. So it would be just and appropriate to provide an opportunity to the plaintiffs to pay the court fees as ordered in issue No.8, in the interest of justice and equity, otherwise, it would amounts to violation of natural justice. So by considering the over all facts and circumstances of the case, it would be just and appropriate to permit the plaintiffs to pay the court fees at the rate of Rs.150 per 82 O.S.No.3813/2001 square feet in respect of the total extent of the suit schedule property claimed by them as discussed in issue No.8. The office is directed to collect the court fee at the rate of Rs.150 per square feet in respect of the suit schedule property and the plaintiffs have to pay the said amount within 60 days from the date of this order. Failing which, the suit of the plaintiffs is liable to be dismissed. Hence in view of my finding to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby decreed.
The plaintiffs are hereby declared as the absolute owners of the suit schedule property.
Further the defendants are hereby directed by way of mandatory injunction to demolish and remove the illegal construction put up on the suit schedule property and hand over 83 O.S.No.3813/2001 the possession of the same to the plaintiffs within four months from the date of this order. In case the defendants fail to do so, the plaintiffs are at liberty to get demolish the illegal construction put up on the suit schedule property at the cost of defendants.
Further if the plaintiffs fail to pay the court fee as ordered in issue No.8 and 9 within 60 days from the date of this order, the suit of the plaintiffs is liable to be dismissed.
No order as to cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 1st day of September 2016).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.84 O.S.No.3813/2001
ANNEXURE:
Witnesses examined for the plaintiff:
P.W.1 : Thimmegowda P.W.2 : B.Ramakanth Shetty
Witnesses examined for the defendant:
D.W.1 : C.Gopal
D.W.2 : K.Ramesh
D.W.3 : P.Raju
D.W.4 : Kamalamma
Documents marked for the plaintiff:
Ex.P1 : Original sale deed dated 8.11.2000
Ex.P2 : Mutation Register Extract
Ex.P3 : RTC Extract
Ex.P4,5 : Encumbrance certificates
Ex.P6 : Certified copy of sale deed
dated 9.6.1972
Ex.P7 : Encumbrance certificate for the period
from 1.4.1996 to 2.3.2003
Ex.P8 : Certified copy of the sale deed
dated 20.4.2002
85 O.S.No.3813/2001
Ex.P9 : Acknowledgment given by PSI Mico
Layout police station
Ex.P10 : Copy of mutation register extract
Ex.P11-14 : RTC extract
Ex.P15 : Certified copy of the Award passed in
LAC No.62 & 63/85-86
Ex.P16 : Certified copy of gazette notification
dated 1.6.1985
Ex.P17 : Certified copy of survey sketch
Ex.P18 : Certified copy of the order passed in
LAC No.50/1990
Ex.P19 : Certified copy of the sale deed dated
2.4.1996
Documents marked for the defendant:
Ex.D1 : Genealogy
Ex.D2 : Death ceremony invitation
Ex.D3 : Tax paid receipt
Ex.D4,5 : RTC extract
Ex.D6 : Letter issued by Secretary, Vijaya Bank
Employees Housing Co-operative
Society Limited, dated 16.3.1991
Ex.D7 : Approved plan
Ex.D8 : Demand Register Extract
Ex.D9 : Receipt
Ex.D10,11: Assessment extracts
86 O.S.No.3813/2001
Ex.D12-14: Tax paid receipts
Ex.D15,16: Self Assessment Declaration Ex.D17-28: Electric bills Ex.D29-32: Water bills Ex.D33 : Certified copy of issues framed in O.S.No.1164/1995 Ex.D34 : Certified copy of order sheet in O.S.No.1164/1995 Ex.D35 : Certified copy of plaint in O.S.No.1164/1995 Ex.D36,37: Certified copy of written statement in O.S.No.1164/1995 Ex.D38 : Certified copy of plaint in O.S.No.6711/2001 Ex.D39 : Certified copy of order sheet in O.S.No.6711/2001 Ex.D40 : Letter dated 15.3.1991 Ex.D41 : Rent agreement Ex.D42-45: Electricity bills Ex.D46 : Rent agreement Ex.D47,48: certified copy of judgment and decree in O.S.No.1164/1995 Ex.D49 : Certified copy of plaint in O.S.No.6711/2001 Ex.D50 : Plan Ex.D51 : Endorsement issued by BDA 87 O.S.No.3813/2001 Ex.D52 : Remittance challen issued by BDA towards plan copy charges (Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE 88 O.S.No.3813/2001 Judgment pronounced in open court (vide separate detailed order) with the following operative portion:-
ORDER The suit of the plaintiffs is hereby decreed.
The plaintiffs are hereby declared as the absolute owners of the suit schedule property.
Further the defendants are hereby directed by way of mandatory injunction to demolish and remove the illegal construction put up on the suit schedule property and hand over the possession of the same to the plaintiffs within four months from the date of this order. In case the defendants fail to do so, the plaintiffs are at liberty to get demolish the illegal construction put up on the suit schedule property at the cost of defendants.89 O.S.No.3813/2001
Further if the plaintiffs fail to pay the court fee as ordered in issue No.8 and 9 within 60 days from the date of this order, the suit of the plaintiffs is liable to be dismissed.
No order as to cost.
Draw decree accordingly.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.90 O.S.No.3813/2001 91 O.S.No.3813/2001
The defendant No.3 also filed his detailed written statement by denying all the plaint averments. The defendant No.3 in his written statement contended that the vendors of the plaintiff have no right to execute and register the sale deed in respect of the suit schedule property as on the date of execution of sale deed, the vendors were not at all in possession and consequently they have not delivered the possession of the suit schedule property to the plaintiff, because in respect of the suit schedule property one suit was pending before the City Civil Court, Bengaluru in O.S.No.1164/1995 seeking the relief of partition of the suit schedule property and the said suit was decreed.
It is further contended that the suit is not properly valued and the court fee paid is not correct. It is further contended that the suit schedule property is not at all agricultural land and the same is coming within the limits of BBMP. It is further contended that the area in which the suit schedule property is situated is fully developed. It is further contended that 92 O.S.No.3813/2001 the plaintiffs also state that there are buildings in the suit schedule property, unless the suit schedule property is valued properly and court fee is paid on the land and buildings, the suit cannot be proceed with, as the plaintiffs fail to produce original extract of RTC or mutation along with the plaint.
It is further contended that the land in Sy.No.119/2 of Bilekahalli was joint schedule property of the said Lakshmamma and others including the 1st defendant. He further stated that he himself, said Lakshmamma, Adiraj and Paparaj have no right to alienate any portion of the land in the said survey as the same is joint family property. The alleged sale deed executed by Lakshmamma, Adiraj and Paparaj in favour of the plaintiffs and others are illegal, void and inoperative and not binding on the 3rd defendant. It is further contended that in respect of the land in Sy.No.119/2 of Bilekahalli, defendant No.3 and Prasanna Kumar, the grand children of Chinnanna 93 O.S.No.3813/2001 have filed suit for partition and separate possession of their shares in the properties shown in the schedule in O.S.No.1164/1995 and in the said suit Lakshmamma is also a party and there was an order of injunction restraining her from alienating the same and the said suit is decreed. It is further contended that apart from that another partition suit is filed by one Narayanaswamy and others against Lakshmamma, the 1st defendant and others in O.S.No.6711/2001 and the said suit is also in respect of the land in Sy.No.119/2 of Bilekahalli apart from other properties. The suit in O.S.No.1164/1995 was within the knowledge of plaintiffs herein.
It is further contended that the plaintiffs falsely contended that they are agriculturists and they purchased the property in order to cultivate the same.
It is further contended that the defendant No.1 to 4 are in peaceful possession and enjoyment of the suit schedule property and they have not delivered physical 94 O.S.No.3813/2001 possession of the suit schedule property to the plaintiffs, as such, the question of interfering with the peaceful possession of the plaintiff does not arise at all.
It is further contended that the suit schedule property originally belongs to one Lakshmamma W/o Chinnanna and the said suit schedule property is the joint family property and all the joint family members are entitled for equal shares, i.e., Gopal, Seenappa, Ramakrishnappa, Adiraj and Paparaj and their sons.
It is further contended that the sons of defendants have filed a suit in respect of the suit schedule property and other joint family property for partition before the City Civil Court in O.S.No.1164/1995 and the same was decreed in favour of the plaintiffs. It is further contended that the said fact personally informed to the plaintiffs about the pendency of the said suit, but the plaintiffs did not care the words of defendant No.3's sons. It is further contended that even though the suit is pending before the above said court and though the information dropped by the 3rd 95 O.S.No.3813/2001 defendant, son of plaintiff, they have intentionally purchased the suit schedule property. So the alleged sale deed is not binding on 3rd defendant and even possession not handed over to the plaintiffs, till today the 3rd defendant is in physical actual possession and enjoyment of the suit schedule property. It is further contended that even from the year 1952, one Chinnanna is in actual possession and enjoyment of the suit schedule property who is none other than the defendants father-in-law, the plaintiff never in possession and enjoyment of the suit schedule property.
It is further contended that the defendants have constructed the residential houses and commercial shops in land in Sy.No.119 of Bilekahalli about 15 years back and defendant No.5 to 7 are the tenants. It is further contended that the said buildings consists of 9 shops and residential houses, bounded on the east by Sy.No.55, west by Vijaya Bank colony, north by 96 O.S.No.3813/2001 remaining property in Sy.No.19/1, south by Devarachikkanahalli road. It is further contended that the defendants are in possession and enjoyment of their property as absolute owners, as such the plaintiffs have no manner of right and the relief sought by them cannot be granted, etc. On these grounds and among other grounds, the 3rd defendant prays for to dismiss the suit. __________________x