Bangalore District Court
Sri.K.S.Sadashiva Rao vs Smt.Shakunthala on 16 April, 2018
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 16th day of April 2018.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.27228/2009
Plaintiff: Sri.K.S.Sadashiva Rao,
S/o.Late.Suryanarayanappa,
aged about 75 yrs, R/at.No.47,
2nd Main, Chinnanna Layout,
Kavalbyrasandra, R.T.Nagar
Post, Bengaluru-32.
(By Sri.K.S.Nagaraja Rao, Advocate)
V/S
Defendants: 1. Smt.Shakunthala,
W/o.Sri.M.Govindaraju, aged
about 41 yrs,
2. Sri.M.Govindaraju, aged about
48 yrs,
Both are R/at.No.45, 2nd Main,
Chinnanna Layout,
Kavalbyrasandra, R.T.Nagar
Post, Bengaluru-32.
(By Sri.A.Nagaraja Naidu, Advocate)
2 O.S. No.27228/2009
Date of institution of the suit 10.11.2009
Nature of the suit (Suit for Pro-note, Suit for Permanent
Suit for Declaration and Possession, Injunction
Suit for Injunction, etc.)
Date of commencement of recording 04.11.2010
of the evidence
Date on which the Judgment was 16.04.2018
pronounced
Total duration Year/s Month/s Day/s
09 05 06
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for seeking a relief of permanent injunction to restrain the defendants from interfering with the possession of the plaintiff over suit schedule property and also from demolition of the residential building therein including the vacant land left on Eastern side, which is the part of the suit property with a watchman shed therein and for costs.
2. The description of the suit schedule property as shown in the schedule to the plaint is as follows:-
All that piece and parcel of the residential building bearing Corporation No.47, 2nd Main Road, Chinnanna Layout, Kavalbyrasandra, R.T.Nagar Post, Bengaluru-32, (Old Site No.5 formed in Sy.No.72, old Khatha No.819/5 then Khatha No.819/C/5, Kavalbyrasandra, Bengaluru), admeasuring East to 3 O.S. No.27228/2009 West: 38.6 feet and North to South: on East side: 44 feet, West side: 43 feet and totally measuring 1674.75 Sq.Ft., consisting of ground and first floor on the Western side therein and vacant land with a watchman shed on the Eastern side therein, and bounded on:
East by: Road;
West by: Property bearing No.47/1 belongs to S.Umesh
Babu and Smt.Jayalakshmi;
North by: Road; and on
South by: Remaining Southern side portion of same
property No.5 (new No.47).
3. Case of the plaintiff, in brief, is as below: -
The plaintiff is the absolute owner in possession and enjoyment of the suit schedule property having purchased the same from R.Narayanaswamy, S/o.Ramappa under registered sale deed dated 30.04.2004 for a valuable consideration and khatha stands in the name of plaintiff and he is paying the tax to the concerned department regularly. The plaintiff is a senior retired person invested his life savings and constructed ground and first floor in half of the site on its Western side and left the other half portion on Eastern side of the site partially vacant by putting up compound having separate gate with the plantain plants therein and temporary watchman shed by obtaining building plan for the entire site from 4 O.S. No.27228/2009 the BBMP on 21.07.2007 and also obtained the other civic amenities for the schedule property. The plaintiff along with his family members residing in the schedule property. The defendants have no right, title and interest over the suit property. The defendants are making a false claim over the suit property and trying to threaten the plaintiff to extract money by posing threat of dispossession from the suit property and also demolition of the residential house taking advantage of the plaintiff's old age and non-supporting his disabled son. The defendants have suddenly dumped waste flooring materials and a ladder in the vacant site on 23.10.2009. The complaint of the plaintiff to the police against the illegal interference of the defendants is in vain; because the complaint is of civil in nature. Hence, this suit arose.
4. After issuance of the suit summons and duly served upon them, the defendants No.1 and 2 both appeared through their advocate Sri.A.Nagaraja Naidu and defendants No.1 and 2 filed their joint WS.
5. Case of the defendants No.1 & 2, in brief, is as below:- 5 O.S. No.27228/2009
Defendants No.1 & 2 contended in their joint WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. Further it is contended that it cannot be said that, the plaintiff has any manner of right, title or interest over the suit schedule property. No one can purchase the property from the person whose title has been disputed in various proceeding including writ proceedings by the Hon'ble High Court of Karnataka stating that, the plaintiffs vendors original vendor Smt.Sonnamma has no right in Sy.No.72 of Kavalbyrasandra Village. Further it is contended that the plaintiff has conveniently suppressed the previous proceedings of Sonnamma, wherein Sonnamma filed application for re grant of Sy.No.72 basing on her sale deed dated 28.04.1965 before the Asst. Commissioner. The Asst.Commissioner in HOA (N) 8/76-77, dated 16.01.1979 rejected her application on the ground that, Sonnamma got property under sale deed; but not by discharging duties of thoti; hence Sonnamma does not belongs to thoti family and ordered that she should vacate and hand over the possession of land to the Govt. immediately and unauthorized occupant may be evicted as per the 6 O.S. No.27228/2009 provisions of Amendment Act, 1978. Against this order Sonnamma preferred Misc. Appeal before the District Judge, in MA No.16/79 and the same was dismissed on 25.01.1980. Against that order the said Sonnamma preferred Writ Petitions 8456/80 and the same was also dismissed as withdrawn reaching the finality. Suppressing the above facts the said Sonnamma sold portion of Sy.No.72 in favour of one Savitri under registered sale deed dated 14.02.1983, once again the Savitri through her GPA holder Rosy Uttappa sold Northern portion of No.5 in favour of S.Balagopalan on 18.04.2001, the said Balagopalan in turn sold the property in favour of R.Narayanaswamy under registered sale deed on
03.11.2003 and in turn the plaintiff purchased the schedule property on 30.04.2004 from him. The adjoining purchasers of the land in Sy.No.72 have filed Writ Petition No.28973 to 75/2003 and WA 12/2004 challenging the re-grant order dated 14.06.1995. On the basis of the SLP No.6695 and 6696/2004, the division bench of the Hon'ble High Court of Karnataka dismissed the writ appeals preferred by K.V.Surya and Nanjundappa, who are claimants to the adjoining property WA No.8115 and 8116/2003 on 27.01.2005 7 O.S. No.27228/2009 holding that, Sy.No.72 belongs to 2nd defendant's father Thoti Lakshmaiah and others, it was re-granted to them and the plaintiffs vendors original vendor Smt.Sonnamma herself has no right over the property. Therefore, the present plaintiffs and his vendors will not get any title or interest in the subject land. Basing on that the writ appeals are dismissed, and it is applicable to entire Sy.No.72 Kavalbyrasandra measuring to an extent of 1 acre 17 guntas. Ultimately when Sonnamma title has been disputed holding that, she is not owner of the Sy.No.72; subsequent purchasers like plaintiff will not get any right over the property. Further it is contended that upon verification of the Hon'ble High Court and Hon'ble Supreme Court order the plaintiff and his vendor Narayanaswamy approached the defendants and after due negation, the plaintiff has agreed the ownership of the defendants and requested to give 20' x 44' ft vacant site on the Western side of the suit property for which he has agreed to pay a sum of Rs.8,80,000/- out of which Rs.1,00,000/- advance amount has been paid to the defendant by the plaintiff by cash during 20.07.2005 and requested to put up construction only in the half portion and after putting up 8 O.S. No.27228/2009 construction in the year 2006 plaintiff occupied the portion of the building constructed on the Western side and he has given up his right basing upon his sale deed in favour of defendants to an extent of 18.6 x 44 ft., on the Eastern side to defendants adjacent to the property there was vacant space measuring 7 ft x 44 ft left over after formation of road on Eastern side, so the defendant clubbing both the measurements (25' x 44 ft) and putting up compound wall and one room sold the same to M.Munikrishnappa under sale agreement dated 11.10.2006 and GPA, affidavit and handed over physical possession to the agreement holder with the consent of plaintiff and Sri.R.Narayanaswamy. Further it is contended that when the defendants demanded the plaintiff to pay balance amount of Rs.7,80,000/- on the instigation of Jayalakshmi, who is also adjoining litigant has failed and refused to pay the balance amount; subsequently to pack up his lacuna this frivolous suit has been filed. Because of the above settlement the plaintiff has not been made as a party in a suit filed by the defendants for the relief of declaration and recovery of possession in O.S. No.26752/2007. On 9 O.S. No.27228/2009 the above said grounds the defendants No.1 & 2 submitted that the suit of the plaintiff deserved to be dismissed.
6. From the above said pleadings, following issues have been framed:-
1. Whether the plaintiff was in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves alleged interference?
3. Whether the plaintiff proves that the defendants are attempting to demolish the building existing in the suit schedule property?
4. What decree or order?
7. On behalf of the plaintiff, affidavit evidence of plaintiff himself has been filed and he has been examined as P.W.1 and Exs.P.1 to P.24 documents have been got marked.
8. On the other hand, on behalf of the defendants also, affidavit evidence of 2nd defendant, has been filed and he has been examined as DW.1 and affidavit evidence of defendants' witness by name Sri.M.Munikrishnappa as a D.W.2, and also filed a another affidavit evidence of another witness by namely 10 O.S. No.27228/2009 Sri.Narayanaswamy as a D.W.3 and Exs.D.1 to D.27 documents have been got marked.
9. Heard, the learned advocates for the plaintiff and defendants No.1 & 2 and perused the records. Learned advocate for the plaintiff has submitted written arguments also and the same has been considered.
10. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: Affirmative, Issue No.2: Affirmative, Issue No.3: Affirmative, Issue No.4: As per final order, for the following:-
REASONS.
11. ISSUE No.1 to 3: All these three issues are interlinked each other; hence, for avoiding repetition I have taken up all these three issues for discussion at one stretch. In order to prove the case of plaintiff, the plaintiff Sri.K.S.Sadashiva Rao is got examined as 11 O.S. No.27228/2009 a P.W.1 by submitting sworn affidavit evidence, in which he has categorically reiterated the plaint averments. The plaintiff/P.W.1 has stated in his evidence that he is the absolute owner in possession and enjoyment of the suit schedule property having purchased the same from one R.Narayanaswamy, S/o.Ramappa under registered sale deed dated 30.04.2004 for a valuable consideration and khatha stands in the name of plaintiff and he is paying the tax to the concerned department regularly. P.W.1 further stated in his chief-examination that his vendor R.Narayanaswamy purchased the schedule property from S.Balagopalan under registered sale deed dated 03.11.2003 for a valuable consideration. P.W.1 further stated in his affidavit evidence that he is a senior retired person invested his life savings and constructed ground and first floor in half of the site on its Western side and left the other half portion on Eastern side of the site partially vacant by putting up compound having separate gate with the plantain plants therein and temporary watchman shed by obtaining building plan for the entire site from the BBMP on 21.07.2007 and also obtained the other civic amenities for the 12 O.S. No.27228/2009 schedule property. The plaintiff along with his family members residing in the schedule property. P.W.1 further stated in his chief- examination that the defendants have no right, title and interest over the suit property. The defendants are making a false claim over the suit property and trying to threaten him to extract money by posing threat of dispossession from the suit property and also demolition of the residential house taking advantage of his old age and non-supporting his disabled son. P.W.1 further stated in his chief-examination that the defendants have suddenly dumped waste flooring materials and a ladder in the vacant site on 23.10.2009. The complaint of the plaintiff given to the police against the illegal interference of the defendants is in vain; because the complaint is of civil in nature and prays to decree the suit.
12. On the other hand, the 2nd defendant Sri.Govindaraj given his evidence as a D.W.1 by stating that the plaintiff has conveniently suppressed the previous proceedings of Sonnamma, wherein Sonnamma filed application for re grant of Sy.No.72 basing on her sale deed dated 28.04.1965 before the Asst. Commissioner. The Asst.Commissioner in HOA (N) 8/76-77, 13 O.S. No.27228/2009 dated 16.01.1979 rejected her application on the ground that, Sonnamma got property under sale deed; but not by discharging duties of thoti; hence Sonnamma does not belongs to thoti family and ordered that she should vacate and hand over the possession of land to the Govt. immediately and unauthorized occupant may be evicted as per the provisions of Amendment Act, 1978. Against this order Sonnamma preferred Misc. Appeal before the District Judge, in MA No.16/79 and the same was dismissed on 25.01.1980. Against that order the said Sonnamma preferred Writ Petitions 8456/80 and the same was also dismissed as withdrawn reaching the finality. Suppressing the above facts the said Sonnamma sold portion of Sy.No.72 in favour of one Savitri under registered sale deed dated 14.02.1983, once again the Savitri through her GPA holder Rosy Uttappa sold Northern portion of No.5 in favour of S.Balagopalan on 18.04.2001, the said Balagopalan in turn sold the property in favour of R.Narayanaswamy under registered sale deed on 03.11.2003 and in turn the plaintiff purchased the schedule property on 30.04.2004 from him. The adjoining purchasers of the land in Sy.No.72 have 14 O.S. No.27228/2009 filed Writ Petition No.28973 to 75/2003 and WA 12/2004 challenging the re-grant order dated 14.06.1995. On the basis of the order passed in SLP No.6695 and 6696/2004, the division bench of the Hon'ble High Court of Karnataka dismissed the writ appeals preferred by K.V.Surya and Nanjundappa, who are claimants to the adjoining property WA No.8115 and 8116/2003 on 27.01.2005 by holding that, Sy.No.72 belongs to 2nd defendant's father Thoti Lakshmaiah and others, it was re- granted to them and the plaintiffs vendors original vendor Smt.Sonnamma herself has no right over the property. Therefore, the present plaintiffs and his vendors will not get any title or interest in the subject land. Basing on that the writ appeals are dismissed, and it is applicable to entire Sy.No.72 Kavalbyrasandra measuring to an extent of 1 acre 17 guntas. Ultimately when Sonnamma title has been disputed holding that, she is not owner of the Sy.No.72; subsequent purchasers like plaintiff will not get any right over the property. D.W.1 further stated in his chief-examination that upon verification of the Hon'ble High Court and Hon'ble Supreme Court order the plaintiff 15 O.S. No.27228/2009 and his vendor Narayanaswamy approached the defendants and after due negation, the plaintiff has agreed the ownership of the defendants and requested to give 20' x 44' ft vacant site on the Western side of the suit property for which he has agreed to pay a sum of Rs.8,80,000/- out of which Rs.1,00,000/- advance amount has been paid to the defendant by the plaintiff by cash during 20.07.2005 and requested to put up construction only in the half portion and after putting up construction in the year 2006 plaintiff occupied the portion of the building constructed on the Western side and he has given up his right basing upon his sale deed in favour of defendants to an extent of 18.6 x 44 ft., on the Eastern side to defendants adjacent to the property there was vacant space measuring 7 ft x 44 ft left over after formation of road on Eastern side, so the defendant clubbing both the measurements (25' x 44 ft) and putting up compound wall and one room sold the same to M.Munikrishnappa under sale agreement dated 11.10.2006 and GPA, affidavit and handed over physical possession to the agreement holder with the consent of plaintiff and Sri.R.Narayanaswamy. D.W.1 further stated in his chief- 16 O.S. No.27228/2009 examination that when the defendants demanded the plaintiff to pay balance amount of Rs.7,80,000/- on the instigation of Jayalakshmi, who is also adjoining litigant has failed and refused to pay the balance amount; subsequently to pack up his lacuna this frivolous suit has been filed. Because of the above settlement the plaintiff has not been made as a party in a suit filed by the defendants for the relief of declaration and recovery of possession in O.S. No.26752/2007 and prays to dismiss the suit.
13. Further the defendants have got examined the one M.Munikrishnappa on his behalf as a D.W.2; he has specifically stated in his affidavit evidence that he has purchased the property in portion of Sy.No.72, Kavalbyrasandra Village from K.V.Surya and Nanjundappa. Upon verification of the Hon'ble High Court and Hon'ble Supreme Court order, it was confirmed that defendants are the absolute owners of the property and he got settled his matter with them and the plaintiff and his vendor Narayanaswamy also approached defendants and after due negation, the plaintiff has agreed ownership and requested to give 20' x 44' vacant site on the Western side of the suit property and 17 O.S. No.27228/2009 also agreed to pay a sum of Rs.8,80,000/- out of which 1,00,000/- advance amount has been paid by plaintiff to the defendant No.2 in cash on 20.07.2005 and requested to put up construction only in the half portion and after putting up construction in the year 2006 plaintiff occupied the portion of the building constructed on the Western side and he has given up his right basing upon his sale deed in favour of defendant No.2 to an extent of 18.6 x 44 ft., on the Eastern side to defendants adjacent to the property there was vacant space measuring 7 ft x 44 ft left over after formation of road on Eastern side, so the defendant No.2 clubbing both the measurements (25' x 44 ft) and putting up compound wall and one room sold the same to M.Munikrishnappa under sale agreement dated 11.10.2006 and GPA, affidavit and handed over physical possession to the agreement holder with the consent of plaintiff and Sri.R.Narayanaswamy. D.W.2 further stated in his affidavit evidence that the plaintiff has not paid balance amount of Rs.7,80,000/- to the defendant No.2 on the instigation of one Smt.Jayalakshmi. Due to the litigation between plaintiff and defendants he got cancelled his agreement of sale and GPA and 18 O.S. No.27228/2009 returned the possession and documents, who continued in possession of the property till now.
14. Further the defendants have got examined the one Narayanaswamy on his behalf as a D.W.3; he has specifically stated in his affidavit evidence that he has purchased the property from Balagopalan on 03.11.2003 and sold the schedule property to the plaintiff under sale deed dated 30.04.2004. He was informed about the litigation regarding to the dispute title to the schedule property. He personally verified the Hon'ble High Court and Hon'ble Supreme Court orders whereby it was clearly held that Smt.Sonnamma alleged owner of Sy.No.72 did not have title to sell the any part of property in Sy.No.72 as she had no title. Further D.W.3 stated in his affidavit evidence that pursuant to the knowledge he along with plaintiff approached defendants who are the owners of the property and requested to give 20 x 44 ft vacant site on the Western side of the schedule property for a sale consideration of Rs.8,80,000/- and Rs.1,00,000/- was paid to defendants on 20.7.2005 in his presence. It was agreed by the plaintiff that, his right relating to only a Western portion of 19 O.S. No.27228/2009 schedule property subject to payment of Rs.8,80,000/-. On consent given by the defendants, plaintiff was allowed to put construction on the Western side of the schedule property and he was incharge of construction of the house as a contractor. The defendants are true owner of the schedule property.
15. Upon perusal of cross-examination of P.W.1 dated 19.3.2011 in which PW-1 stated that before he purchasing the property he verified the title deeds of his original vendor. It is further stated by the PW-1 that he has seen the sale deeds of Narayanaswamy, Savitri Bai and Balagopalan. Savitri had purchased the property from Sonnamma. It is further answered that suit schedule property is a portion of Sy.No.72; the Sonnamma is the wife of Narasimhaiah, originally Sy.No.72 of Kavalabyrasandra belonging to Narasimhaiah, had purchased from one Lakshmamma Pillappa.
16. P.W.1 it is denied that he does not know whether Sonnamma applied for re-grant of Sy.No.72 of Kavalabyrasandra and it was rejected by the concerned officer. Against the said order there was a appeal filed, and the appeal also was rejected. It is 20 O.S. No.27228/2009 denied that Lakshmamma was not a owner of Sy.No.72 and it is stated that she was the owner of Sy.No.56. P.W.1 denied that Sonnamma had filed a appeal against the rejection order; but it is stated that he does not know whether the said appeal was rejected or not. P.W.1 it is also stated that he does not know whether the Sonnamma had filed a writ appeal against the order of dismissal of misc. appeal and whether she was withdrawn the said petition. P.W.1 denied that he was very well aware about the suit schedule property, never belonging to Sonnamma and in spite of it he purchased the suit schedule property. It is also denied that whether Sy.No.72 measuring 1 acre 17 gunta was re-granted in favour of Lakshmaiah in the year 1995 or not. It is further stated that he does not know whether the order of re-grant passed in favour of the Lakshmaiah has been challenged before the Hon'ble High Court of Karnataka in writ petition and whether the said writ petition was dismissed or not. Further he stated that he does not know whether the writ appeal was filed against the dismissal of the writ petition and the writ appeal is dismissed or not. P.W.1 further denied that he has purchased the suit schedule property on the hope that the 21 O.S. No.27228/2009 parties may succeed before the Hon'ble Supreme Court. It is further stated that he does not know if Lakshmaiah had executed a gift deed in favour of his daughter, who is the 1st defendant in respect of 1 acre 17 guntas land coming in Sy.No.72 on 30.3.2000. P.W.1 further denied that all the revenue records of the above said land is standing in the name of 2nd defendant.
17. P.W.1 stated that he started a construction in the suit schedule property in the year 2005 and it is denied that when he started a construction in the year 2005 in the suit schedule property there was already decision of the Hon'ble Supreme Court of India by holding that Sy.No.72 measuring 1 acre 17 gunta belonging to the father of the 1st defendant. It is further denied that in spite of knowing the decision of the Hon'ble Supreme Court he started a construction. It is stated by the P.W.1 that he completed a construction in the suit schedule property in the year 2007 and constructed a compound for the said property in the year 2005. It is also stated that he obtained the sanctioned plan to put up construction in the year 2007. It is further stated that he started the construction of the 22 O.S. No.27228/2009 building in the schedule property in August 2007. It is denied that he started a construction of building in the year 2005 in half portion of the suit schedule property and he completed a construction in the year 2006 itself.
18. Upon perusal of the further cross-examination of the P.W.1 in page No.11 para No.2 it is stated by the P.W.1 that his vendor Narayanaswamy is a Contractor by profession and he constructed a building in the suit schedule property for plaintiff in half portion of the suit schedule property. It is denied that he agreed with the defendant in the year 2005 that as he would give half portion on the Eastern side and also Rs.8,80,000/- to the defendant and it is also denied that he paid Rs.1,00,000/- to the defendant.
19. Upon perusal of the cross-examination of P.W.1 dated 16.7.11 it is denied by the PW-1 that Sy.No.72 of Kavalabyrasandra is still an agricultural land. It is also stated that he does not know if the same is converted for non-agricultural purpose and who had formed the layout in it. It is straight forward denied that the said land Sy.No.72 is standing in the name of 1st 23 O.S. No.27228/2009 defendant. Looking the Ex.P.19 PW-1 stated that it is his house; but, it is denied that the house appearing in Ex.P.21 is not in the possession of the plaintiff. It is also denied that Eastern portion measuring 20 x 24 is in possession of Munikrishna. It is also denied that he has given the above said Eastern portion in favour of 1st defendant and in turn 1st defendant has sold it to Munikrishna. In total, it is case of the plaintiff that he is in possession of the suit schedule property site No.5 formed in Sy.No.72, Old Khatha No.819/5, then Khatha No.819/C/5 and according to the documents produced by the plaintiff, which are disclosing that the said property is purchased from R.Narayanaswamy under the registered sale deed, which the property was purchased by R.Narayanaswamy from one S.Balagopalan in the year 2003. Accordingly, khatha is also changed in the name of plaintiff and he is paying the tax of the suit schedule property to the BBMP and even EC and other documents also discloses that the plaintiff is being in possession of the suit schedule property and P.W.1 tried to deny the all suggestion of defendants advocate in the cross-examination by 24 O.S. No.27228/2009 affirming that the suit schedule property is belonging to it and he is in possession and enjoyment of the same.
20. In the cross-examination of the D.W.1 who is a GPA holder of the 1st defendant stated that on the Southern side of the suit schedule property there is 2 floor RCC building, which the building is constructed in the year 2006 and plaintiff and his family members are residing in it. It is also stated that plaintiff is not entitled to sell the extent of property mentioned in the agreement. D.W.1 it is admitted that plaintiff has purchased the suit schedule property from one Narayanaswamy situated in Sy.No.72 there is divided in two part and it is stated that Sy.No.72 is now not in a position of land. In the said land, number of houses are constructed. Only to a small extent agricultural land is remained as it is. It is further stated that the said land is falling under the limits of BBMP. D.W.1 it is also stated that he has constructed a house in the same Sy.No. But, not obtained the khatha. It is further stated that Joseph has obtained the construction plan and sanctioned plan according to the compromise held with Joseph Periyar. D.W.1 further stated that the property 25 O.S. No.27228/2009 in which defendants are residing is belonging to the plaintiff property, it is situated in Sy.No.72. It is also stated that in O.S. No.26752/2007 there was sought a relief of declaration and possession of the remaining land out of 1 acre 17 guntas. It is stated that one Jayalakshmi and Umesh Babu are in possession of 44 ft x 84 ft and Kalinga is in possession of 25 ft x 30 ft., Narayana and his children are in 116 ft x 86 ft., out of the above said property. He admits that Sadashiva Rao/plaintiff was not a party to the suit O.S. No.26752/2007 and the above said persons also filed a numbers of suit O.S. No.4861/2010 and 4863/2010 for seeking a declaration about the suit schedule property. It is also admitted that there is being a watchman shed and compound to the suit schedule property. It is denied that watchman shed is constructed by the plaintiff; in turn he stated that it is constructed by him and denied that plaintiff is being in possession of the suit schedule property; in turn he stated that D.W.1 has constructed the watchman shed and it is situated towards the Eastern side of plaintiff property.
26 O.S. No.27228/2009
21. D.W.1 admitted that Eastern side 24 x 44 ft of the suit schedule property is sold to one Munikrishna; he has further stated that he is not having a document to show that plaintiff had agreed for payment of Rs.8,80,000/- to him and Rs.1,00,000/- was given as a advance of sale consideration amount. It is further stated that Narayanaswamy is alive and it is denied that the 1st defendant is in possession of 21 ft x 44 ft and towards Eastern side of it there is a 25 x 44 ft., open space is situated and it is admitted that Sy.No.72 is a Inam land was came to the plaintiff. It is denied that the said document of grant of Inam supplied is not legal one and it is denied that he himself and his brothers were submitted the application for re-grant before the Asst. Commissioner. It is also admitted that suit O.S. No.79/2010 was filed by the brothers of his father-in-law; but it is denied that they are not in possession of the suit schedule property. D.W.2 and D.W.3 are completed MA Degree and obtained the degree certificate and it is also stated that his affidavit evidence is preferred by defendants advocate; accordingly D.W.2 signed to it and he stated that there is no any suit filed against the plaintiff and he stated that only oral compromise is taken place in 27 O.S. No.27228/2009 the year 2005 and D.W.2 admits that the said compromise is taken place in between plaintiff and defendant in the month of October 2005. D.W.2 it is also stated that he is not a witness to the any case filed for suit schedule property. It is further stated he does not know he was a party to the cases which were filed in the Hon'ble High Court of Karnataka and Hon'ble Supreme Court in respect of suit schedule property and he stated that a portion of the suit schedule property is belonging to P.W.1 and it is given to somebody; but, no any documents produced as a proof for the said transaction and he does not know that whether he has signed to the said document or not. D.W.3 stated that he has constructed the building as per the documents of sanction plan etc., issued by the BBMP and approved the same. It is admitted that plaintiff and defendants are residing in a suit schedule property and D.W.3 admits that a owner of the said property Balagopalan, who has sold the property in his favour is not alienated. It is admitted that Balagopalan has sold out the property to D.W.3; in turn he sold it same to the plaintiff and he admits that all the subject matter mentioned in the sale deed and the cases arisen out of the same 28 O.S. No.27228/2009 are pending. It is further stated that there is no written sale deed is taken place; but, no any written agreement is taken place. It is admitted that in para No.3 it is stated that Rs.8,80,000/- amount was given by the plaintiff to the defendant and the said amount is given as a sale consideration. It is further admitted that there is no any acknowledgement receipt obtained relating to the amount received. Defendants have produced the certified copy of the judgment of Writ Appeal No.12/2004, 8115/2003, 8116/2003, which filed by one Muniraju, Nanjundappa and K.V.Surya against the Shakunthala/defendant No.1 with a prayer to set aside the order passed in Writ Petn.
No.28973/2003 to 28975/2003 dated 28.11.2003, wherein questioning the order of the Tahsildhar and Ex.D.5 is also a order of the Writ Petn. No.28974 and 28973/2003 clubbed with Writ Petn. No.28975/2003. The documents were not tallying with one another. Ex.D.5 is a certified copy of the Thahsildhar order which is challenged in the writ as the impugned order. Ex.D.6 is a partition deed dated 30.3.2000 taken place in between Thoti Lakshmaiah and others in between his family members 29 O.S. No.27228/2009 Anjanamma and Chikkathayamma about the suit schedule property. The partition deed schedule-A property measuring 1 acre 6 gunta in dry land situated in Sy.No.41, K.G.Byadarahalli Village, and item No.2 also a dry land situated in Sy.No.72 measuring 1 acre 17 gunta of Kavalabyrasandra allotted to Lakshmaiah and 'B' schedule property was Rs.4,50,000/- only, C-schedule property measuring 16 gunta situated in Sy.No.41 of K.G.Byadarahalli Village allotted to Anjinamma and D-schedule property measuring 15 gunta of the above said land was allotted to the share of Chikka Thayamma. The above said Lakshmaiah executed a gift deed on 30.3.2000 as per Ex.D.7 in respect of suit schedule property in favour of M.L.Shakunthala and Ex.D.10 a mutation order entry No.3/2005-06 copies is speaking about the Sy.No.72 of the suit schedule property, 1 acre 17 gunta was originally in the name of Sonnamma, W/o.Late.Narasimhaiah as per the MR No.87/79-80, her name is deleted relating to the above said land and according to MR No.3/2005-06 the name of the M.L.Shakunthala, W/o.M.Govindaraju is inserted for the above said land measuring 1 acre 17 gunta. Ex.D.11 is a RTC photocopy of the year 2006 it is 30 O.S. No.27228/2009 appearing that the name of Shakunthala is mentioned as she is owner and occupant of 1 acre 17 gunta of Kavalabyrasandra, Kasaba Hobli, Bengaluru North Taluk, and also produced the tax- paid receipts, EC and a RTC of 2010 and 2011 relating to the suit schedule property measuring 1 acre 4 gunta was being in her name.
22. Ex.D.14 MFA No.10482/2006 is produced by the appellants/defendant No.2 and others, who have filed a MFA by challenging the order passed on IA No.I and II dated 27.9.2006 in O.S. No.15604/2005 with a prayer to vacate the TI of the suit schedule property. The said appeal were allowed and impugned order of the trial court is modified and directed to both the parties to maintain the status quo until disposal of the suit for which spent huge amount of 98%. It is also stated that since huge amount has been invested and constructed almost 98%. It is necessary to direct the trial court to dispose the suit within 3 months and directed to maintain status quo. Other documents of the Asst. Commissioner and Revenue documents also produced with colour photographs and sanctioned plan. In the colour photographs it is appearing that a building is erected and they have been residing in the same and 31 O.S. No.27228/2009 ultimately confirmed the order of this court. Other documents are supporting to the above said documents of the defendants. In total, it is a case of the defendants that suit schedule property is a property of the defendant No.1 and plaintiff is not in physical possession and enjoyment of the entire schedule property and further stated that plaintiff constructed a building on the Western side and half portion was in his occupation; thereafter, he sold it to the Munikrishnappa on 11.10.2006 through the agreement and GPA.
23. Upon verification of the Hon'ble High Court and Hon'ble Supreme Court order, the plaintiff and his vendor Narayanaswamy approached to defendant No.1; after the negotiation when the plaintiff agreed their ownership to give 20 x 40 ft being on the Western side of the suit schedule property and agreed to pay Rs.8,80,000/- out of Rs.1,00,000/- advance amount has been paid to the defendant by cash during 20.7.2005. It is also case of the defendants that after the Gruhapravesha at the end of 2006, plaintiff occupied the portion of the building constructed on the Western side and he has given up his right basing upon his sale 32 O.S. No.27228/2009 deed in favour of defendant No.1 to the extent of 18.6 x 44 ft and Eastern side adjacent to the said property there was a vacant space measuring 7 ft x 44 ft left over the formation of road on the Eastern side; therefore, he himself clubbing both the measurements and putting up a compound wall and one room, the same is sold to Munikrishnappa through the agreement dated 11.10.2006 and also GPA. On the basis of the above said documents, it is case of the defendants that defendants have not made efforts to demolish the suit schedule property and never tried to cause any interference by way of dispossession of the property of the plaintiff as alleged in the plaint; therefore, it is a case of the defendants in total that defendants have not given a threaten to the plaintiff to demolish the residential house and it is also case of the defendant that Hon'ble High Court of Karnataka came to conclusion that there is no cause of action left over the plaintiffs and the plaintiff filed the frivolous suit against the defendants. The said defence of the defendants is supported by all D.W.1 to D.W.3 and with the said oral and documentary evidence tried to deny the case of plaintiff by stating that there is no prima facie and balance of convenience in favour of 33 O.S. No.27228/2009 the plaintiff to grant the permanent injunction as prayed for, which is not at all established through the oral and documentary evidence.
24. Upon perusal of the both side evidence of P.W.1 and D.W.1 to D.W.3, which are disclosing that P.W.1 has denied the chief-examination contents of D.W.1 to D.W.3 in his cross- examination. On the other hand, D.W.1 to D.W.3 have denied the very case of plaintiff in their cross-examination. Before coming to conclusion on the point of the possession of the plaintiff, it is necessary to look at the documents of plaintiff and a litigations W.A. No.8115 and 8116/2003 dated 27.01.2005 on the file of the Hon'ble High Court of Karnataka, which the certified copy is marked as a Ex.D.20. In the Ex.D.20 at page No.5 & 6 the lordships of the Hon'ble High Court of Karnataka, wherein the lordships opined that appellants Nanjundappa and K.V.Surya are purchasers of the lands from Sonnamma and her son Srinivas by registered sale deed dated 7.2.1983 and 21.2.1983 respectively. The Sonnamma herself had made an application for re-grant of the land, which was rejected by the Tahsildhar by order dated 16.1.1979. The appeal was preferred by the Sonnamma against the 34 O.S. No.27228/2009 order of the Tahsildar it was dismissed by the appellate authority on 25.1.1980. That the said Sonnamma filed a Writ Petition No.8654/1980, when the writ petition was pending Sonnamma withdrawn the same on 28th November 1980. Thus, Sonnamma and her son tried to assert their right over the land, which was not accepted by the Tahsildhar and the appellate authority, which the orders are become a final, then the appellants could not have any legitimate grievance in terms of the law against the impugned order of the Tahsildhar for a simple reason that the appellant cannot have any better title and interest than what their vendors Sonnamma and her son Srinivas had executed a sale deeds in the year 1983. With the said observation, the above said writ appeals dismissed. According to the defendants documents Ex.D.9, which is a order of the Asst. Commissioner, Bengaluru North passed in RA No.53/2000-01, which the appeal was filed by the A.L.Shakunthala, W/o.Govindaraju/defendant No.1 of this case. In the Ex.D.9 page No.7 para No.2 last 5 lines are very important wherein the Asst. Commissioner clearly discussed that a land Sy.No.72 measuring 1 acre 17 gunta is a Thoti Inam land and 2nd 35 O.S. No.27228/2009 defendant of the RA by name Sonnamma is not a successor of the Thoti Inam family, which is in dispute in the said RA and confirmed the order of the Tahsildar, wherein ordered that the said land is being a Thoti Inam land of Kavalabyrasandra, Kasaba Hobli, Bengaluru North Taluk and cancelled the mutation entry No.87/79-80 dated 7.1.82. Accordingly, a name of the Sonnamma is deleted and the name of the Shakunthala is inserted to the property 1 acre 17 gunta of Sy.No.72/1. These all the above said documents discussed in length relating to defendants are disclosing that the defendant No.1 Shakunthala is established her right and title over the property Sy.No.72 measuring 1 acre 17 gunta of Kavalabyrasandra, Kasaba Hobli, Bengaluru North Taluk.
25. Now it is necessary to come to the documents of the plaintiff to decide that whether the plaintiff is in possession and is in lawful possession and enjoyment of the suit schedule property as on the date of suit. Ex.P.2 is a sale deed executed on 3.11.2003 by the one S.Balagopalan in favour of the Narayanaswamy for a sale consideration of Rs.2,58,000/- in respect of Eastern portion of property bearing site No.5, EP Khata No.819/C/5 situated at 36 O.S. No.27228/2009 Kavalabyrasandra, which the property presently known as No.47, North-East portion, 2nd Main Road, Chinnanna Layout, Kavalabyrasandra Ward No.95, Bengaluru, measuring East-West:
38-06 ft North-South: Eastern side 44 ft, Western side 43 ft., or (44+43)/2 ft total measuring 1674.75 sq ft., which the same property is sold by the Narayanaswamy in favour of the plaintiff on 30th April 2004 for a sale consideration of Rs.2,70,000/- in the page No.6 para No.8 of the sale deed there is a recital that the vendor Narayanaswamy handed over the physical possession of the suit schedule property along with original relevant documents to the purchaser on the date of registration of sale deed. Accordingly, Ex.P.3 to P.5 are came into force by making the entry of the name of plaintiff as a khatha holder and owner and being in possession of the suit schedule property. Accordingly, he paid the tax upto the year 2008-09 and EC also as per Ex.P.12 appearing in the name of plaintiff about the suit schedule property. Ex.P.13 is a sanctioned plan obtained for construction of the house in suit schedule property; Ex.P.19 to P.22 are the photographs disclosing about the construction of the plaintiff building in the suit schedule property. 37 O.S. No.27228/2009 Ex.P.14 to P.17 are the BESCOM and telephone bills relating to the connectivity of the electricity and telephone connection taken to the suit schedule property and the plaintiff is paying the electricity and telephone bills.
26. It is true that in the cross-examination of D.W.1 and D.W.3 it is stated that towards Western side of the suit schedule property there is a RCC building, ground floor and first floor, which is constructed in the year 2006 and in which plaintiff and his family members are residing. It is disputed that the said property is measuring 38.6 x 43 and they have stated that his vendor Narayanaswamy had no right to sell the such extent of the property. It is also admitted that in a suit filed by the defendants the plaintiff Sadashiva Rao is not a party; but, in the said suit a declaration and possession is sought 44 x 84 ft from Jayalakshmi and Umesh Babu, 25 x 30 ft from one Kalinga, 116 x 86 ft from Narayana and his children, 21 x 44 relating to the plaintiff Sadashiva Rao. Later on a impleading petition is filed the same is pending and O.S. No.4861/2010 to 4863/2010 are filed for declaration suit. It is also admitted that there is situated a watchman shed and compound and 38 O.S. No.27228/2009 also gate in the property situated towards the Western side; but, it is denied that the said construction is constructed by the plaintiff. Further it is admitted by the defendants that a Eastern side 24 x 44 ft., property situated towards suit schedule property is sold out to M.Munikrishna and not having any documents that plaintiff has agreed for payment of Rs.8,80,000/- in respect of the suit schedule property Rs.1,00,000/- is given as a advance amount. D.W.3 admitted that he has constructed the plaintiff house, which comes in the BBMP jurisdiction and for the said construction there was obtained approved sanctioned plan by the plaintiff. Now the plaintiff and his family members are residing in the said property. It is further stated that Balagopalan has sold the property in his favour; later on he sold the same to the plaintiff; at that time no any above discussed suits were pending before any courts. He admits that there was no any agreement of sale taken place in between the plaintiff and himself in respect of the suit schedule property a direct sale deed is taken place. In the recitals of the sale deed there is written Rs.8,80,000/- was paid by the plaintiff to the defendant. D.W.3 a Narayanaswamy admits about the Ex.P.1 taken place in 39 O.S. No.27228/2009 between himself and plaintiff and he sold the suit schedule property and also there is a house constructed by obtaining the sanctioned plan from the BBMP. Supporting to the Ex.P.1 plaintiff produced the Ex.P.3 to P.5 khatha certificate and khatha extract issued by the BBMP on 24.1.2007, wherein the name of plaintiff is appearing as he is owner in possession of the suit schedule property, measuring 1674.75 sq ft and a number of tax-paid receipts of the year 2007 to 2009 produced are disclosing that the plaintiff Sadashiva Rao has paid the tax to the BBMP about the suit schedule property and Ex.P.11 and P.12 are the EC disclosing that the Narayanaswamy has sold the suit schedule property on 30.04.2004 for a sale consideration of Rs.2,70,000/- to the plaintiff and telephone bills, electricity bills, colour photos supported by CD's are disclosing that therein constructed a building in the suit schedule property as the plaintiff's/P.W.1 stated in oral evidence. Now by looking the oral evidence of the P.W.1 and above discussed documents of the plaintiff and also a admission given by the D.W.1 and D.W.3; i.e., particularly a vendor of the suit schedule property to the plaintiff admits that the plaintiff and his family members are in possession 40 O.S. No.27228/2009 and enjoyment of the suit schedule property in which there is constructed a residential house. Through the above discussed reasons it is appearing that the plaintiff established that he was in lawful possession of the suit schedule property as on the date of suit. The very WS contention and evidence led by the defendants as a D.W.1 and D.W.2 and also examined to the D.W.3 who is the vendor of the suit schedule property to the plaintiff stated in the chief-examination supporting the case of the defendants and disputing the possession of the plaintiff over the suit schedule property. It itself shows that the defendants of this suit had made a interference and tried to demolish the building of the plaintiff existing in the suit schedule property. Therefore, it is crystal and clear that plaintiff has successfully proved the issue No.1 to 3 against the defendants. In view of that, I would like to answer issue Nos.1 to 3 in favour of the plaintiff as a Affirmative.
27. ISSUE No.4: In view of my findings given to above said issue Nos.1 to 3, I proceed to pass the following:-
ORDER.
Suit of the plaintiff is decreed with costs. 41 O.S. No.27228/2009 Defendants and their agents, servants and anybody working under their directions are hereby permanently restrained from interfering with the plaintiff's possession and enjoyment of entire suit property and also demolishing the residential building therein including the vacant land left on Eastern side, which is the part of the suit property with a watchman shed therein.
Advocate fee is fixed at Rs.1,000/-.
Draw the decree accordingly.
(Dictation computerized by Stenographer, corrected and then pronounced by me in the open court on this, the 16th day of April, 2018).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witness examined for the plaintiff:
P.W.1 - Sri.K.S.Sadashiva Rao.
List of documents exhibited for the plaintiff:
Ex.P.1 - Sale deed dated 30.04.2004 executed by R.Narayanaswamy 42 O.S. No.27228/2009 Ex.P.2 - Sale deed dated 3.11.2003 executed by Balagopalan Ex.P.3 - Khata certificate Ex.P.4 - Khata certificate Ex.P.5 - Khata extract Ex.P.6 to 10 - Tax receipts Ex.P.11 & 12 - Encumbrance certificates Ex.P.13 - Sanctioned plan Ex.P.14 & 15 - Electricity receipt and bill Ex.P.16 - Telephone bill Ex.P.17 - Water bill Ex.P.18 - Copy of complaint to the police Ex.P.19 to 23 - Photographs of plaintiff's house Ex.P.24 - CD of the photographs List of witnesses examined for the defendants:
D.W.1 - Sri.Govindaraj.M.
D.W.2 - Sri.M.Munikrishnappa
D.W.3 - Sri.Narayanaswamy
List of documents exhibited for the defendants:
Ex.D.1 - C/C of orders passed by the Tahsildar
Ex.D.2 - RTC extract
Ex.D.3 - Mutation register extract
Ex.D.4 - C/C of order passed in W.A.12/04,
8015/03, 8016/03
Ex.D.5 - C/C of order passed in W.P.28975/03
and connected cases
Ex.D.6 - C/C of partnership deed dt.30.3.2000
Ex.D.7 - C/C of gift deed dt. 30.3.2000
Ex.D.8 - C/C of encumbrance certificate
Ex.D.9 - C/C of order passed in RA.53/2000-01
Ex.D.10 - C/C of mutation register
Ex.D.11 - C/C of RTC extract
Ex.D.12 - C/C of tax receipt
Ex.D.13 - Mutation register extract
Ex.D.14 - C/C of judgment in MFA.10482/2006
43 O.S. No.27228/2009
Ex.D.15 - C/C of order passed in HCA.(8/76-77)
Ex.D.16 - C/C of order passed in Misc.Appeal
16/79
Ex.D.17 - C/C of order passed in W.P.8654/1980
Ex.D.18 - C/C of sale deed dated 14.2.1983
Ex.D.19 - C/C of sale deed dated 18.4.2001
Ex.D.20 - C/C of judgment in W.A.8115/2003 &
8116/2003
Ex.D.21 - C/C of order passed in R.P.61/2003-04 & connected cases Ex.D.22 - Copy of mutation of Sy.No.72 Ex.D.23 - RTC Ex.D.24 - Village map Ex.D.25 - C/C of survey endorsement dt.8.11.04 Ex.D.26 - C/C of sale deed dt.19.12.1927 Ex.D.27 - C/C of sale deed dt.28.04.1965 (Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.44 O.S. No.27228/2009
45 O.S. No.27228/2009