Bangalore District Court
Smt.Vimala Clement vs Sri.K.Sreedhara Reddy on 31 March, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 31ST DAY OF MARCH 2015
O.S.No.7571/2011
Plaintiff:- Smt.Vimala clement,
w/o. Mr.N.Clement Barnabas,
aged about 80 years,
residing at No.49,
Srinath Residence II,
Adalaj 0382421,
Gandhinagar, Gujarat.
Reptd. by its GPA holder
Smt.Mary Kalpana Jostna,
Aged about 49 years,
d/o. N.C.Barnabas,
r/at.no.58, 4th 'A' Cross,
Kanakanagar, R.T.Nagar
Post, Bengaluru.
(By Sri.P.M.Rabhurama Reddy,
Advocate)
-VS-
Defendant:- Sri.K.Sreedhara Reddy,
s/o. Sri.H.Krishna Murthy,
2 O.S.No.7571/2011
aged about 42 years,
residing at No.823,
Hoodi, Rajaplaya,
Mahadevapura Post,
Bengaluru -560048.
(By Sri.N.Mahendranath,
Advocate)
Date of Institution of the suit : 22/10/2011
Nature of the suit : Permanent injunction
Date of commencement of
recording of the evidence : 05/07/2013
Date on which the Judgment was
pronounced : 31/03/2015
Total Duration Years Months Days
: 03 05 09
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
J U D G M E N T
This suit is filed by the plaintiff for permanent injunction restraining the defendant or anyone acting under him from interfering in any manner with the peaceful possession and enjoyment of the suit schedule property of the plaintiff. 3 O.S.No.7571/2011
2. The case of the plaintiff is that the plaintiff is the absolute owner and he is peaceful possession and enjoyment of the site bearing No.9, khatha No.18/4/21/2/9, formed out of the lands in Sy.No.21/2 situated at Basavanapura village, K.R.Puram Hobli, presently within the limits of BBMP Bengaluru East Taluk, Bengaluru measuring East to West: 64 ft. and North to South: 30 ft. totally measuring 1920 Sq.ft. as described in the schedule annexed to the plaint.
3. Originally the lands were the ancestral properties of Smt.H.A.Sundandamma who had filed O.S.No.1/1967 for the relief of partition and separate possession against the defendants therein and that suit came to be decreed as per compromise petition and the land Sy.No.21/2 along with other lands fell to the share of Smt.H.A.Sundandamma. Meanwhile, Smt.H.A.Sundandamma along with her children including the defendant herein were in joint possession and enjoyment of the said lands without any hindrance or interference from any person 4 O.S.No.7571/2011 and they in order to meet their legal and family necessities sold the schedule property free from all encumbrances absolutely in favour of one Sri.C.P.Selvaraj by executing an Agreement of Sale dated.15.4.1988 and upon receipt of the entire sale consideration, the defendants have executed registered power of attorney datd.16.11.1988 authorising the said C.P.Selvaraj to do all acts, deeds and things including the power to form layout of residential sites and to sell the same in favour of prospective purchasers. Pursuant to C.P.Selvaraj having formed residential sites of various measurement and the site bearing No.9 having khatha No.21/2/9 situated at I.T.I Notified area, Bengaluru South Taluk measuring East to West: 64 ft. and North to South:
100 ft. in lands Sy.No.21/2. Subsequently, the said C.P.Selvaraj as attorney holder for and on behalf of Smt.H.A.Sundandamma and her children including the defendant sold the entire property absolutely and unconditionally in favour of the plaintiff by executing registered Sale Deed dated.23.04.1993 and put the 5 O.S.No.7571/2011 plaintiff in actual physical possession and vacant possession of that property. The plaintiff got transferred khatha in her name with the then I.T.I Notified Area Committee and thereafter with the then City Municipal Council, K.R.Pura. Ever since the date of purchase, the plaintiff was in possession and enjoyment of the entire property by paying the outgoings payable in respect of thereof to the authorities concerned. Thereafter the plaintiff had gifted portion of the entire property i.e., the property measuring East to West:55ft. and North to South: 40 ft.
absolutely in favour of her son by executing registered Sale Deed dated.13.12.1999 and on the even date has gifted East to West:
64 ft, and North to South: 30 ft. in favour of her daughter thereby retaining the remaining portion of site bearing No.9, khatha No.18/4/21/2/9 measuring East to West: 64 ft. and North to South: 30 ft. i.e., the suit schedule property herein. The plaintiff is in uninterrupted possession and enjoyment of the same without any hindrance from any person. 6 O.S.No.7571/2011
4. Thereafter the suit schedule property was included in the limits of BBMP. Accordingly the plaintiff had got the khatha and other revenue records transferred into her name. Since then the plaintiff is also paying the tax in respect of the jurisdictional BBMP authorities. The facts being so, the defendant herein who is none other than the predecessor of the plaintiff though has no manner of right, title or interest whatsoever nature over the schedule property along with the henchmen and goods elements tried to interfere with the peaceful possession and enjoyment of the plaintiff over the schedule property and in furtherance of his illegal act on 21.9.2011, the defendant along with his henchmen have dumped the construction materials near the suit schedule property with an intention to encroach upon the schedule property and to put up construction thereon but the said act of the defendant and his henchmen was successfully restrained by the plaintiff with the aid and interference of her family members, neighbours and passerby, upon returning back the 7 O.S.No.7571/2011 defendant asserted that he would come back with more men and materials and dispossess the plaintiff from his possession over the schedule property. Immediately the son-in-law of the plaintiff approached the jurisdictional police and lodged complaint against the defendant and others. The jurisdictional police inspite of issuing acknowledgment for failed to evince any action. The defendant and his followers are land sharks and have eyed the schedule property for grabbing. Pursuant to registering the complaint, the defendants did not made any effort to interfere with the possession of the plaintiff till 19.10.2011, but surprisingly on 19.10.2011. The plaintiff apprehends that the defendant has sinister designs to grab the schedule property and if such an illegal and high handed act of the defendant is not restrained by an order of this court, the plaintiff will be put to great hardship which will not be compensated in monetary terms. Hence the plaintiff has constrained to file the suit for permanent injunction against the defendant.
8 O.S.No.7571/2011
5. In response to the suit summons, the defendant has appeared through his counsel and resisted the claim of the plaintiff by filing his written statement. The defendant has submitted that his mother absolute owner of the property bearing Sy.No.21/2 situated the Basavanapura village, K.R.Puram, Bengaluru East Taluk in total measuring 6 Acres 17 Guntas was executed a registered GPA daed.16.11.1988 along with her children in favour of C.P.Selvaraj only to an extent of 06 acres to do the acts and deeds mentioned therein and she retained 17 Guntas on the western side of the entire land. The said attorney was supposed to account Smt.H.A.Sundandamma the mother of the defendant after sale of the sites formed in Sy.No.21/2 only to an extent of 06 Acres. The said C.P.Selvaraj misused the power conferred on him and till date he has not informed Smt.H.A.Sundandamma nor her children about the acts and deed done by him in respect of 6 Acres of land and so far he has not accounted for the same and hence it became necessary for 9 O.S.No.7571/2011 Smt.H.A.Sundandamma to revoke the registered power of attorney and that power of attorney has been revoked through registered Revocation Deed dted.11.11.2011. The mother of the defendant was in peaceful possession and enjoyment of the tnire land she gifted an extent of 8½ Guntas in favour of the defendant through registered Gift Deed dated.10.06.2005 and the said Gift Deed was followed by Rectification Deed dated.10.08.2009. Both the documents registered in the office of the Sub-Registrar, K.R.Puram, since then, the defendant is in peaceful possession and enjoyment of the said property which goes to show that defendant is in possession of the property conveyed to him through registered Gift Deed.
6. The defendant has further submitted that he has filed the suit O.S.No.7230/2009 on the file of this court against C.P.Selvaraj and others and wherein one Aravind a builder is the 5th defendant. The said C.P.Selvaraj, G.Aravind and G.Gopal Reddy, father of G.Aravind has set up the plaintiff to file the suit 10 O.S.No.7571/2011 as a counter blast to harass the defendant. Further the name of the defendant is spelled as "H.K.Sridhara Reddy".
7. The defendant has denied all the averments made in the plaint as false. It is specifically denied that plaintiff would be absolute owner and in enjoyment of site bearing No.9 as described in the schedule annexed to the plaint. However, the defendant has admitted that originally the lands in Survey Number 21/2 along with other land was the ancestral properties of Smt.H.A.Sundandamma, she with an intention to get share over the ancestral joint family properties filed a suit in O.S.No.1/1967 for the relief of partition and separate possession against the defendant therein, pursuant to initiated the suit, the same was amicably and to that effect a compromise petition was also filed and the lands in Survey Number 21/2 along with other lands fell to the share of Smt.H.A.Sundandamma. The defendant has further denied that Smt.H.A.Sundandamma and her children including the defendant herein sold the schedule property by 11 O.S.No.7571/2011 executing agreement of sale dated 15.04.1988 and registered GPA 16.11.1988, thereby appointing C.P.Selvaraj as their attorney, authorizing him to do all the acts, deeds and things including the powers to form the layout of residential sites and to sell the same in favour of prospective purchaser. It is also denied that C.P.Selvaraj as GPA Holder formed a layout of residential sites of various measurements and sold the entire property absolutely and unconditionally in favour of the plaintiff herein by executing a registered sale deed dated 23.04.1993 for a valid sale consideration and put the plaintiff in actual physical and vacant possession of the same. The defendant in turn submits that clandestinely the plaintiff does not speak about the 17 Guntas of land retained by Smt.H.A.Sundandamma on the western side of the land bearing Survey Number 21/2 was executed only in respect of acres of land in Survey Number 21/2. It was also denied that the plaintiff is in uninterrupted peaceful possession and enjoyment of the said property without any hindrance and 12 O.S.No.7571/2011 paying the taxes payable in respect of the schedule property to the then City Municipal Council, K.R.Puram. The defendant further denied that on 21.09.2011 the defendant along with his henchmen have dumped the construction material over suit schedule property with an intention to encroach upon schedule property and to put up construction thereon, but it was successfully restrained by the plaintiff with the aid of her family members etc.
8. The defendant further pleaded that the defendant or his family have never received any amount alleged to have been paid by the plaintiff and therefore, the said statements have been made only to prejudice the mind of this court. The power of attorney herein has already preferred a suit in O.S.No.6075/2011 against the defendant before this court and clandestinely has not mentioned that facts in the plaint. There is no cause of action to file the suit. Therefore, it is prayed to dismiss the with exemplory costs.
13 O.S.No.7571/2011
9. On the basis of the pleadings the following issues have been formulated:-
ISSUES
1. Does the plaintiff prove that she is in lawful possession of suit property as on the date of suit?
2. Does the plaintiff prove that there is interference by the defendant to her lawful possession over the suit property?
3. Does the plaintiff prove that, she is entitled for the relief of permanent injunction against the defendant?
4. What order or decree?
10. The plaintiff being represented by her daughter - GPA Holder is got examined P.W.1 to 4 and got marked Ex.P1 to P14. In the meanwhile the defendant was examined as D.W.-1 and got marked Ex.D1 to D14. I have heard the counsel for both parties.
11. My findings on 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: As per final order 14 O.S.No.7571/2011 for the following:-
/REASONS/
12. Issues No.1 & 2:- Since both the issues are interlinked with each other, in order to avoid repetition of discussions, are taken up together for consideration.
13. P.W.1 has reiterated the averments made in plaint in the course of her examination-in-chief by way of an affidavit. It is evident from the cross-examination of P.W.1 that the suit site belongs to plaintiff. The plaintiff being aged about 82 years and residing at Ahmadabad is executed GPA in favour of P.W.1. P.W.1 is M.Com., post graduate and working as Upper Division Clerk (UDC) in Dooradarashana. She knows Kannada language both to read and write. P.W.1 saw the defendant of this case for the first time at Mediation centre. P.W.1 has never seen the defendant of this case earlier. Ex.P1-General Power of Attorney is said to have been executed by her mother was given by her lawyer to P.W.1. The said C.P.Selvaraj was given the sketch of the 15 O.S.No.7571/2011 schedule property at Ex.P13 to her mother. P.W.1 has admitted that, advocate who has filed the instant suit has also filed O.S.No.6975/2011 on her behalf. One Vishwajith Rai advocate has filed O.S.818/2012 on behalf of her brother. P.W.1 has filed three cases because her mother had made three divisions in the property one is for P.W.1, another one is for her brother and remaining one is kept with her mother- the plaintiff. P.W.1 has denied that when she failed to get temporary injunction order in earlier case filed the 2nd and 3rd case. As admitted by P.W.1, her mother has not seen the Ex.P1 at the time of purchase of suit property. It also admitted that the mother of defendant had retained the 17 guntas of land in survey No.21/2 of Basavanapura Village. P.W.1 has denied that Ex.P13 is not approved plan because it does not bear number of approval and also date of approval. Admittedly, the advocate of P.W.1 brought to her notice about that agreement of Sale. There is no personal interest of her advocate for filing this suit and residing in the same row where 16 O.S.No.7571/2011 the suit property is situated. At the time of purchase of property by the plaintiff, the southern boundary is shown as vendor's property. The plaintiff had retained southern portion of the entire site. The southern boundary of site purchased by the plaintiff at present is vendor's property. But P.W.1 has shown southern boundary of suit property as private property in the schedule i.e., vendor's property. P.W.1 has not kept Ex.P2-sale deed in any bank at any point of time.
14. P.W.1 further admitted in the course of her cross- examination that there is a recital at Para-7 of the plaint as "That the original sale deed dated 23.4.1994 and other connected documents are in bank". P.W.1 does not know for what purpose the said fact is written and by whom. P.W.1 put her signature after going through the contents of the same but she has not given any instructions to her counsel to prepare the plaint but they simply told to file a case. There is appearance of a shed in the three photos marked a Ex.P5. As voluntarily deposed by P.W.1, the 17 O.S.No.7571/2011 defendant encroached and constructed the shed during the pendency of the case. P.W.1 has further admitted that the defendant had constructed the shed and therefore she filed the case. There is existence of a shed as on the date of filing of the suit.
15. P.W.2 is nothing but son-in-law of plaintiff and husband of P.W.1. P.W.2 has supported the version of P.W.1 in the course of his examination-in-chief. P.W.2 was very well present in the court when the P.W.1 was cross-examined by the counsel for the defendant. P.W.2 knows the PW-3 Gopalareddy since 10 years but he does not know whether Gopalareddy has got any interest in the suit property to give evidence in this case. It is also not known to P.W.2 whether plaintiff assured to Gopalareddy to sell her property in favour of Gopalareddy. P.W.1 and himself decided to call P.Ws.3 and 4 as witnesses to give evidence in this case. P.W.2 does not aware that Advocate of plaintiff produced any documents in respect of filing of complaint by him before the 18 O.S.No.7571/2011 police on 21/10/2011. P.W.2 is not holding any site in the said layout but his wife, mother-in-law, brother-in-law are the members in the association. The said Gopalareddy P.W.3 as a President of said association has also denied that defendant is in possession of the suit schedule property and plaintiff is not in possession of the same.
16. P.Ws.3 and 4 have also supported the oral evidence of P.Ws.1 and 2. In the course of their examination-in-chief, P.W.3 adjacent owner of site No.9 and 10 adjoining to the site of the plaintiff. As admitted by P.W.3, the defendant has filed O.S.7230/2009 against his son G.Aravind. P.W.3 knows the Shelvaraj since 2002 on previous date the Shelvaraj came to Court to give evidence in this case and he was with them but failed to give evidence in this case. According to P.W.3, the said O.S.No.7230/2009 is in between defendant and his son in respect of site No.10. P.W.3 saw the sale deed of plaintiff which was registered in the year 1993. The plaintiff came to his house 19 O.S.No.7571/2011 expressing her intention to sell site No.9 to him. At the time when he purchased site No.10 the General Power of Attorney holder of plaintiff expressed her intention to sell site NO.9, but her mother was not intending to sell site No.9 so they failed to purchase the same. Now P.W.3 is ready to purchase entire site NO.9 after clearance of litigation.
17. On the other hand, P.W. 4 is said to have formed 15 layouts approximately. Though P.W.4 knows the defendant, yet he does not know about filing of the cases by him including O.S.No.7230/2009 pending on the file of this court. P.W.3 is a builder and developer who has purchased sites in the same layout and he took the site owners towards him. P.W.4 was taking site owners to Gopalareddy till 2013. P.W.4 is the person who has formed layout and he come to give evidence at the request of one Victor i.e., the son-in-law of the plaintiff. The advocate Raghuramareddy is also representing Gopalareddy in the said suit. But he does not remember whether the said Advocate is 20 O.S.No.7571/2011 representing him in O.S.7230/2009. There are 5 cases pending against P.W.4. It is evident from further cross-examination of P.W.4 that, he came to Court to give evidence and deposing in support of plaintiff at the request of P.Ws.1 and 2. P.W.4 was not present at the suit property as on 19.10.2011 as alleged. According to P.W.4, the suit property was vacant site.
18. On the other hand, D.W.1 has reiterated the averments made in his written statement in the course of his examination-in-chief by way of an affidavit and also got marked Ex.D1 to Ex.D14. It is elicited from the cross-examination of D.W.1 that, he is doing transportation business. Admittedly, the survey No. 21/2 measuring 6 acres 17 guntas originally owned by one Sunandamma i.e., his mother. The said survey number is situated in Basavanapura village. D.W.1 his mother, sister and another brother executed GPA in favour of C.P.Selvaraj in respect of 6 Acres only on 16.11.1989. D.W.1 again stated that they executed the said GPA on 16.11.1988. The suit schedule 21 O.S.No.7571/2011 property was acquired by his mother as per Judgment & Decree passed in O.S.No.1/1967. D.W.1 has deposed that the layout plan at Ex.P13 is bogus plan. D.W.1 has no original layout plan. D.W.1 has denied that area reflecting in photograph at Ex.D9 with fencing is the site No.9. As deposed by D.W. 1, the 3 storied building in site No.10 is constructed by encroaching the area, so he has filed declaratory suit bearing O.S.7230/2009 pending on the file of this court.
19. D.W.1 has denied that the plaintiff has executed gift deed dated.13/12/1999 in favour of her son measuring East to West: 64 ft and North to South:40 ft. However, it is admitted that the son of the plaintiff has filed O.S.No.818/2012 for the relief of Permanent injunction against him. The daughter of plaintiff has filed a suit against him in O.S.No.6975/2011 for the relief of injunction and there is an amendment application pending for the relief of declaration. The mother of the defendant has executed gift deeds in favour of his brother and himself gifting 22 O.S.No.7571/2011 him property measuring 8½ guntas and 8½ guntas to his younger brother. It is denied that the northern boundary in the Gift Deed is shown as private property and in Rectification Deed at Ex.D5 is shown as Annayyanappa property. The power supply is given to survey No.21/2 as per Ex.D8 to an extent of 8½ guntas owned by him as per gift deed executed by his mother. It is also admitted that, there is no permission letter issued by Bescom in his name in respect of site No.9. D.W.1 has flatly denied that the documents which are produced by the defendant are marked as Ex.D1 to Ex.D9 are created documents for the purpose of this suit. It is also denied that without intimating to C.P.Selvaraj they cancelled the General Power of Attorney on 11.11.2011 which was executed in his favour on 16.11.1989. Even then, the defendant has not produced any documents about issuance of notice to C.P.Selvaraj.
20. The burden is upon the plaintiff to prove that she is in lawful possession of the suit property as on the date of suit and 23 O.S.No.7571/2011 the defendant interfered with her lawful possession over the suit schedule property. It is an admitted fact that the mother of the defendants was the absolute owner of the land Sy.No.21/2 measuring 6 Acres 17 Guntas situated at Basavanapura Hobli, K.R.Puram, Bengaluru East Taluk. The mother of the defendant Smt.H.A.Sundandamma and her children including the defendant herein had jointly executed registered GPA in respect of converted land extending an area of 6 Acres held in Sy.No.21/2 situated at Basavanapura village within the following boundaries:-
East by: Private property
West by: Remaining portion of
vendor
Smt.H.A.Sundandamma
North by: Annayyappa's land
South by: Chalapathy Raju's land
on 16.11.1989 in favour of C.P.Selvaraj as per Ex.P1 and similar copy of GPA is also exhibited by the defendant at Ex.D1. The said C.P.Selvaraj in pursuant to GPA had formed layout in the land Sy.No.21/2 and created sites as per approved modified plan at Ex.P13. Accordingly Sy.No.21/2 was ITI notified area and site 24 O.S.No.7571/2011 No.9 measuring East to West:64 ft. and North to South: 100 ft. is bounded by:
East by: Road
West by: Private property
North by: Site No.10
South by: Remaining property of the
vendor.
21. After forming sites, the said C.P.Selvaraj a GPA holder of Smt.H.A.Sundandamma and her children including the defendant herein executed registered Sale Deed -Ex.P2 dated.23.4.1993 in favour of the plaintiff in respect of site No.9, ITI notified area, khatha No.18/4/21/2/9 measuring East to West: 64ft. and North to South: 100 ft. within the boundaries as described in Ex.P13. In pursuant to the Sale Deed, the khatha in respect of property was changed in the name of plaintiff and it is the plaintiff who has been paying the property tax as per Ex.P3 and Ex.P4. The plaintiff has exhibited that C.D at Ex.P5 and Ex.P6 to show the location of the suit schedule property and its 25 O.S.No.7571/2011 surroundings. The Chief Officer of ITI notified area Committee, K.R.Puram, issued an endorsement as per Ex.P7 regarding the property sold by Smt.H.A.Sundandamma through her power of attorney to the plaintiff wherein the khatha number is mentioned as described in the schedule but the measurement is given as East to West:100 ft. and North to South: 64ft. which is totally contradictory to the approved plan and the registered Sale Deed. This is one of the aspect against the records. Whereas demand register at Ex.P8 denotes the plaintiff is the owner of the said site measuring 100ft. x 64.ft in the year 1985-86. The plaintiff has paid the property tax pertaining to the suit property as per Ex.P9 to Ex.P11 from time to time. The Encumbrance Certificate at Ex.P12 for a period of 23 years from 1.6.1989 to 28.9.2011 reflects the sale transaction between Smt.H.A.Sundandamma and others through their GPA -C.P.Selvaraj and the plaintiff and also Gift Deeds dated.15.12.1999 executed by the plaintiff in favour of her son and daughter in respect of portion of site No.9 26 O.S.No.7571/2011 measuring 64 x 40 ft. and 64x30 ft. thereby the plaintiff has still retained remaining portion measuring 64x30 ft. out of the site No.9 purchased by her. The plaintiff has executed GPA in favour of her daughter-P.W.1 to represent her in this suit in respect of the schedule property bearing site No.9 khatha No.18/4/21/2/9 measuring East to West: 64ft. and North to South: 30 ft. within the following boundaries:
East by: Road
West by: Private property
North by: Property gifted to
Smt.Mary Kalpana
South by: Private property
This fact itself goes to show that the plaintiff has retained the southern portion measuring East to West:64 ft. and North to South: 30 ft. and remaining two portions situated towards North in site No.9 were gifted to her son and daughter through registered Gift Deed.
22. The plaintiff has filed the suit in respect of southern portion of the site bearing No.9 khatha No. 18/4/21/2/10 formed 27 O.S.No.7571/2011 out of the lands in Sy.No.21/2 situated at Basavanapura, K.R.Puram presently within the limits of BBMP measuring East to West: 64 ft. and North to South: 30 ft. totally measuring 1920 Sq.ft together with all rights, appurtenances, whatsoever whether underneath or above the surface and within the following boundaries:-
East by: Road
West by: Private property
North by: Portion of site No.9
gifted to daughter of
plaintiff
South by: Private property
23. The defendant has exhibited certified copy of registered Deed of Cancellation/Revocation of GPA executed by his mother, sisters, brothers and himself on 11.11.2011 thereby the defendant and his mother and others said to have cancelled the GPA executed in favour of C.P.Selvaraj dated.16.11.1988 in respect of the land measuring 6 Acres held under Sy.No.21/2 within the boundaries as described in Ex.D1-GPA. The alleged 28 O.S.No.7571/2011 cancellation deed at Ex.D2 was got executed after 18 years of execution of the Sale Deed in respect of site No.9 in favour of the plaintiff herein by their GPA. As such, the said Revocation of GPA by the defendant and his family members is nothing to do with the sale of suit schedule property in favour of plaintiff by their GPA. It is a fact that the Record of Rights of land Sy.No.21/2 for the period from 2005-06 to 2013-14 disclose that the defendant is shown as owner to the extent of 8½ Guntas and his mother Smt.H.A.Sundandamma is still owner to the extent of 6 Acres 8½ Guntas during the said period but, the column-12(2) of the Record of Rights is kept blank. This fact itself goes to show that neither the mother of the defendant nor the defendant is in possession and enjoyment of the said area as described in column-9 of the Record of Rights as it is evident form Ex.D3. The mother of the defendant was said to have executed registered Gift Deed dated.10.6.2005 at Ex.D4 in favour of the defendant in respect of portion of land in 29 O.S.No.7571/2011 Sy.No.21/2 situated at Basavanapura village measuring 8½ Guntas out of 17 Guntas within the following boundaries:-
East by: Road
West by: High tension electricity
poles
North by: Private property
South by: Remaining portion of same
property
On taking into consideration the location of that portion, the defendant got gifted 8½ Guntas of land in Sy.No.21/2 towards south side of site No.9 purchased by the plaintiff i.e., the suit schedule property. Meanwhile, Smt.H.A.Sundandamma executed Rectification Deed in favour of defendant herein in respect of the said property thereby corrected the schedule of Gift Deed at Ex.D4 to the following effect:-
All that piece and parcel of property bearing Sy.No.21/2, situated at Basavanapura village, K.R.Puram Hobli, Bengaluru East Taluk, Bengaluru measuring 0 acre 08½ Guntas out of 0 Acre 17 Guntas and bounded on:-
East by: Road
30 O.S.No.7571/2011
West by: Property belongs to
Sri.Sriramulu Shetty,
North by: Property belongs to
Sri.Annayappa
South by: Property belongs to
Sri.H.K.Shashibhushana
Reddy
Through the Rectification Deed, the mother of the defendant has confirmed the boundaries of 8½ Guntas gifted to the defendant. Accordingly the suit property is bounded by North to the portion gifted to the defendant. Whereas in the Rectification Deed it is mentioned that property belongs to Sri.Annayyappa. The defendant has not explained the boundaries of the property gifted to him or the location of the suit schedule property under the ownership and possession of the plaintiff. The defendant is said to have taken electricity connection and paying the electricity bills as per Ex.D7 and Ex.D8, but none of these documents disclosed about the location of the property owned by the either plaintiff or the defendant so as to take into consideration. The defendant has exhibited in all 20 photographs with negatives as Ex.D9 to show the location of the disputed 31 O.S.No.7571/2011 property acquired by him. The plaintiff has asserted in the course of cross-examination of D.W.1 that the area shown within the fencing as reflected in Ex.D9- Photographs is the site No.9 in her ownership and 3 storied building is constructed on site No.10 as it reflects in Ex.D9(a) photograph. Whereas D.W.1 has tried to explain that the said building is constructed by encroaching the area so he as filed the declaratory suit bearing O.S.No.7230/2009 in this court. Even D.W.1 has denied that the plaintiff has executed gift deed on 13/12/1999 in favour of her son in site No.9 measuring East to West: 64 ft, North to South:
40 ft. But it is admitted that, the son of the plaintiff has filed O.S.No.818/2012 for the relief of Permanent injunction against him. Though the defendant has denied that the plaintiff had executed Gift Deed in favour of her daughter on 15/12/1999 yet it is admitted that, the daughter of the plaintiff has filed a suit against the defendant in O.S.No.6975/2011 for the relief of injunction and there is an amendment application pending for the 32 O.S.No.7571/2011 relief of declaration. D.W.1 has further admitted that his mother had executed gift deeds in his favour and his brother gifting property measuring 8½ guntas to him and 8½ guntas to his younger brother. Even then, the D.W.1 has denied that the 17 guntas of land was retained by his mother is in between site No.8 and 9, 17 guntas of land as claimed is more than 17 guntas in physical existence. D.W.1 has also admitted that the northern boundaries in the Gift Deed shown as private property instead of site No.9. In Rectification Deed the northern boundary is shown as Annayyappa's property. The defendant has no documents to show that the BESCOM has granted permission for installation of electricity connection.
24. The defendant has produced the certified copy of order sheet, plaint, written statement and issues filed in O.S.No.6975/2011 as well as amendment application as per Ex.d10 to Ex.d14 respectively. Accordingly P.W.1 herein i.e., the daughter of plaintiff filed that suit for injunction against the 33 O.S.No.7571/2011 defendant herein on 24.9.2011 in respect of portion of site bearing No.9 gifted by her mother as described in the schedule to that suit. The defendant had contested the claim of the plaintiff by filing his written statement. The plaintiff in that suit has sought for amendment of plaint in order to incorporate the relief of declaration and vacant possession of the western portion of the schedule property measuring East to West:14ft. and North to South: 18 ft. as the defendant herein being owner of the property bounded by west to the property of plaintiff in that suit had encroached to that extent. The said suit is still pending for adjudication.
25. On taking into consideration the boundaries of the entire land Sy.No.21/2 originally owned by the mother of the plaintiff and out of which, to the extent of 6 Acres transferred to vendor of the plaintiff through registered GPA as well as the layout formed and sites created on that area measuring 6 Acre.
The vendor of the plaintiff had absolute right, title or interest 34 O.S.No.7571/2011 over the various sites including site No.8 at south west and site No.9 and 10 towards north-west. Accordingly the remaining 17 Guntas of land retained by the mother of the defendant is certainly in between the site Nos.8 and 9. When his mother, brothers and sisters jointly executed GPA in favour of the vendor of the plaintiff as per Ex.P1/Ex.D1 as on 16.11.1988 to the extent of 6 Acres of land out of Sy.No.21/2 by retaining remaining 17 Guntas for their mother and then neither the defendant nor anybody is having any sort of right whatsoever over the layout formed by the vendor of the plaintiff and site No.9 purchased by the plaintiff from her vendor about 18 years back. The defendant has kept quite for all these considerable period of more than 18 years and not only encroached upon the portion of land gifted to the P.W.1 herein by the plaintiff, but also tried to interfere with the possession of the plaintiff over the suit schedule property. Except the bald pleadings, nothing is placed on record by the defendant to disbelieve the claim of the plaintiff 35 O.S.No.7571/2011 over the suit schedule property. It is proved from the documentary evidence on record itself that the plaintiff is in lawful possession and enjoyment of the suit schedule property. Whereas it is established from the earlier litigation between the daughter and son of plaintiff and the defendant herein itself in respect of the same subject-matter is sufficient to hold that the defendant herein as son of original owner of the land has not only made encroachment over the portion of plaintiff in O.S.No.6975/2011, but also threatened to interfere with the possession of not only the plaintiff herein, but also her son over the portions of site No.9 belonging to them. Hence without much discussion, I answer both the issues in the Affirmative.
26. Issue No.3:- In view of my findings on Issue Nos.1 and 2 and reasons stated therein, without much discussion I hold that the plaintiff is entitled to safeguard her lawful possession over the suit schedule property from the hands of defendant or anybody claiming under him. Hence without much discussion, I hold 36 O.S.No.7571/2011 that the plaintiff is entitled for the relief of permanent injunction as against the defendant in respect of suit schedule property and I answer Issue No.3 in the Affirmative.
27. Issue No.4:- In view of my findings on the issues No.1 to 3 and the reasons stated therein, in the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is decreed with costs thereby the defendant or anybody claiming under him is restrained from interfering in any manner with the peaceful possession and enjoyment of the suit schedule property by the plaintiff by way of permanent injunction.
Draw up a decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 31st day of March 2015.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore 37 O.S.No.7571/2011 A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Smt.Mary Klapana Jostana
P.W.2: Sri.A.E.Victor
P.W.3: Sri.T.Gopala Reddy
P.W.4: Sri. C.P.Selvaraj
(b) Defendant's side :
D.W.1: Sri.H.K.Sridhara Reddy
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Certified copy of the General Power of Attorney Ex.P2: Original sale deed dated 24/3/1983 Ex.P3&P4: Two tax paid receipts Ex.P5: Three photos Ex.P6: CD same Ex.P7: Endorsement issued by Chief officer ITI Ex.P8: Demand register extract dated 3/5/93 Ex.P9: Tax paid receipt issued from ITI notified area Ex.P10: Two tax paid receipt from CMC K.R.Puram Ex.P11: Five tax paid receipts issued by Bruhat Bangalore Mahanagara Palike Ex.P12: Encumbrance certificate Ex.P13: Layout plan Ex.P14: GPA 38 O.S.No.7571/2011
(b) For defendant's side:-
Ex.D1: Certified copy of the General Power of Attorney Ex.D2: copy of deed of cancellation/revocation of General Power of Attorney Ex.D3: 9 RTC extracts Ex.D4: Certified copy of the gift deed with survey map Ex.D5: Copy of rectification deed Ex.D6: One electricity bill Ex.D7: Receipt of payment Ex.D8: Letter give by Bescom about sanction of power in 2 pages Ex.D9: 20 photos Ex.D9(A): Negatives Ex.D10: Certified copy of the order sheet in O.S.6975/2011 Ex.D11: Certified copy of the plaint copy in above case Ex.D12: Certified copy of the written statement in said suit Ex.D13: Certified copy of the issues framed in said suit Ex.D14: Certified copy of the IA U/o 6 R 17 of CPC with affidavit in the said suit (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore 39 O.S.No.7571/2011 (Judgment pronounced in open court) The suit of the plaintiff is decreed with costs thereby the defendant or anybody claiming under him is restrained from interfering in any manner with the peaceful possession and enjoyment of the suit schedule property by the plaintiff by way of permanent injunction.
Draw up a decree accordingly vide Judgment passed.
XII ACCJ;Bangalore