Bangalore District Court
Sri K.R. Rajanna vs Sri D. Venkatesh @ Venkateshappa on 24 February, 2020
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 24th day of February, 2019.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.6215/2012
PLAINTIFF : Sri K.R. Rajanna,
S/o Late G. Ramaiah,
Aged about 57 years
No.1293, Kodigehalli,
Bengaluru 560 092
VS.
DEFENDANT : Sri D. Venkatesh @ Venkateshappa,
S/o Late Dyavappa,
Majoro.275/1, Ram Mandir Road,
Kodihalli, Sahakara Nagar Post,
Bengaluru 560 092
Date of Institution of the suit : 29-8-2012
Nature of the suit : Suit for Declaration and
Injunction
2 O.S.No.6215/2012
Date of commencement of : 19-10-2016
recording of the evidence
Date on which the Judgment was : 24-2-2020
pronounced
Total Duration Years Months Days
7 5 25
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
The suit is filed by the plaintiff against the defendant for the relief of declaration to declare the judgment and decree passed on 27-11-2006 in O.S.No.8333/1995 passed by the City Civil Judge, Bangalore is not in respect of suit schedule property and not binding the same, for permanent injunction restraining the defendants and their agents, servants, administrators, henchmen or any other person claiming under or through them from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff, cost and such other relief.
2. The case of the plaintiff is that, the plaintiff is the absolute owner in possession and enjoyment of the land bearing Sy.No.210/18 situated at Kodigehalli, Yelahanka Hobli, Bangalore North Taluk, Bangalore, measuring 2 acres. The plaintiff has 3 O.S.No.6215/2012 acquired the said land in terms of partition deed dated 05.01.1998 entered into between himself and his brothers. In pursuance of the same, the possession of the said land was delivered in favour of the plaintiff. Accordingly, the plaintiff was in possession and enjoyment of the same as absolute owner thereof. The mutation and phahani entries in respect of the said land stood in the name of the plaintiff herein. The said land consists of two parts one measures 1 acre 20 guntas and another portion measures 20 guntas and the same is shown in the sketch, which is herewith produced along with plaint. The plaintiff has retained only an extent of 29 ½ guntas and remaining extent is sold by the plaintiff in favour of various purchasers.
3. The plaintiff is residing in portion of the property retained by him along with his family members. The plaintiff has also constructed a school in the extent retained by him in the name and style of Prestige Public School. The plaintiff has also constructed 12 houses in the area retained by him and let out the same in favour of tenants. In the remaining area the plaintiff has maintained garden which is in front of the school. The plaintiff has sold the remaining extent of the land in favour of various purchasers. The plaintiff herein has formed a layout and sites of different dimensions. The purchasers of the sites have already constructed houses and residing therein. Out of the 12 sites formed by the purchaser have constructed 8 houses and 4 sites 4 O.S.No.6215/2012 are vacant. Infact the layout was formed about 10 to 12 years back. Immediately after purchasing of the sites by the purchasers they constructed houses. There is no dispute with regard to the land owned and possessed by the plaintiff herein.
4. It is the case of the plaintiff that now he has retained only an extent of 29½ guntas in the said land. It is pertinent to note here that, there is no dispute between the plaintiff and defendant with regard to the land owned and possessed by the plaintiff. It seems the defendant herein is not at all laying any claim or right over the land owned and possessed by the plaintiff herein. It seems the defendant herein is not at all laying any claim or right over the land owned and possessed by the plaintiff herein. That be so, it is not open for the defendant to lay any claim or right over the land possessed by the plaintiff that is land bearing Sy.No.210/18 situated at Kodigehalli, Yelahanka Hobli, Bangalore North Taluk, Bangalore, measuring 2 acres morefully described in the schedule here in under.
5. Admittedly it is the claim of the defendant that the land bearing Sy.No.210/2 situated at Kodigehalli, Yelahanka Hobli, Bangalore North Taluk, Bangalore, measuring 1 acre 23 guntas owned and possessed by him. It is claimed by the defendant that the same was acquired in terms of the judgment and decree passed in O.S.No.3424/1990. The boundaries mentioned in the respect of the said land East by Ramaiah's property, West by 5 O.S.No.6215/2012 Marappas's property, North by Narayanappa's property, South by Rajanna's property moreover if any land retained by the defendant the same has to be restricted by the defendant. Infact the defendant has not at all retained the land owned by him but conveyed the same in favour of one Smt.C.R.Leela under registered sale deed dated 15-5-1995. The fact the entire extent of land which was allotted in favor of the defendant conveyed in favour of the said Smt.C.R.Leela. The plaintiff has produced the said sale deed. Consequently necessary records also stood in the name of the said Smt.C.R.Leela. In turn the said Smt.C.R.Leela has conveyed the land by forming the layout in favour of various purchasers. The said land got converted from agricultural to residential. In pursuance of the same, the purchasers of the sites have developed the land in toto and residing therein along with their family members.
6. Inspite of it, the defendant is laying false and frivolous claim disputing the said alienation and the matter is now pending before the Apex Court for adjudication. The defendant is a champion of creating litigations and laying false and frivolous claim. The sole intention of the defendant is only to harass the people for extraneous consideration with malafide intention. The modus operandi on part of the defendant is to set up frivolous claim and thereafter bargain the same in terms of money. The documents referred to supra make it crystal clear that the 6 O.S.No.6215/2012 defendant neither possess the land which was allotted to him in favor of partition referred to supra. Under the said circumstance, it is not open for the defendant to lay or assert any right over the suit schedule property.
7. The fact that the plaintiff is no more holding any right over the land in question and the same is apparent from the documents produced herein above. Inspite of it, the defendant has instituted a suit in O.S.No.8333/1995 before the City Civil Judge, Bangalore against the defendant for the relief of mandatory injunction to remove the encroachment by demolishing the structure in area of 40X850 comprised in land bearing Sy.No.210/2 situated at Kodigehalli, Yelahanka Hobli, Bangalore North Taluk and deliver the vacant possession. The said suit came to the decreed by judgment and decree dated 27-11-2006 directing the plaintiff to remove the encroachment by demolishing the structure as stated supra. The plaintiff herewith produced the copies of the plaint and the judgment and decree passed in the said suit is Exparte decree wherein the plaintiff failed to put his appearance the said suit is came to be decree.
8. it is the claim of the defendant therein that the encroachment is in the land bearing Sy.No.210/2 situated at Kodigehalli, Yelahanka Hobli, Bangalore North Taluk, Bangalore, measuring 850x40 ft i.e., 34,000 sq.ft. The claim of the defendant therein that the plaintiff is the owner of the land bearing 7 O.S.No.6215/2012 Sy.No.210/4 who has not manner of right, title or interest over the defendant's land i.e., Sy.No.210/2 has illegally encroached upon an extent of 40x805 ft and constructed shed and compound wall in his property without any authority. The complaint lodged by the defendant meets with blank response. Since the claim lodged by the defendant made in the aforesaid suit remain uncontroverted and the defendant who was the plaintiff in the said suit was also not been cross examined. The Hon'ble Court was pleased to decree the suit. As already stated supra, the plaintiff who has no knowledge of the suit or the decree and as such, there was no occasion for the plaintiff to put his appearance. The plaintiff herein came to know about the same through the site owners only when the defendant tried to meddle with the sites which are in possession of the purchasers which is a portion of the schedule property during October 2010. Immediately thereafter, the owners of the sites have instituted suit for permanent injunction restraining the defendant herein from interfering with their peaceful possession and enjoyment of their respective sites. In the said suit the defendant have received notices and put his appearance and the same are pending for adjudication. The defendant herein who is asserting his claim that there is encroachment as contented in the suit filed by him against the plaintiff over the schedule property. The claim of the defendant is not only frivolous but without any substance. Moreover, the claim of the defendant is not sustainable. The 8 O.S.No.6215/2012 defendant is very well aware of the same but laying false and frivolous suit over the suit schedule property.
9. The plaintiff herein has learnt that the defendant has not put up the decree into execution. Moreover, the reason in non-initiating any action to put the judgment and decree into execution is unsustainable. Is there is any encroachment as such the same is liable to be executed in terms of the decree. Contrary to the same, the defendant who is trying to meddled with the suit property without any manner of right. Moreover, the defendant is also laying claim over the plaintiffs property which is retained by him under the guise of the decree passed in the said and meddled with the same during 3rd week of July 2012. At this juncture, the plaintiff has verified the documents pertaining to the claim of the defendant therein. On perusal of the same the plaintiff came to know that the suit though instituted against the plaintiff but not in respect of land bearing Sy.No.210/4 claiming to be the encroached by the plaintiff herein. The judgment and decree is nothing to do with the land owned and possessed by the plaintiff herein. The plaintiff herein is the owner of possession and enjoyment of the suit schedule property and the extent now retained by him. Moreover, the defendant is not owning and possessing the land as claimed in the said suit. The claim lay down by the defendant in the said suit and the judgment and decree obtained is on suppression and misconceived of facts. The 9 O.S.No.6215/2012 claim of defendant in toto misconceived without any right, title or interest over the same. Unfortunately, the said suit came to be decree as there was no appearance nor representation by the plaintiff. Even otherwise, the said decree is nothing to do with the suit schedule property and the plaintiff herein. Hence, it is not open for the defendant to lay any claim over the suit schedule property against the plaintiff herein.
10. It is the specific case of the plaintiff that the land bearing Sy.No.210/4 belongs to one Sri.Nanje Gowda which measures 05 guntas. The defendant is not the owner in possession and enjoyment of the land bearing Sy.No.210/4. The extent and measurement claimed in the said suit filed by the defendant exceeds the land available in land bearing Sy.No.210/4. The RTC of 210/4 which discloses that the land owned and possessed by him and the extent. Under the circumstances, it is ruled out to claim that if there is any encroachment as such in respect of Sy.No.210/4 which is not at all owned by the plaintiff is unbelievable. This itself suffice to show that the defendant herein is laying false and frivolous claim even with regard to the encroachment by the owner of the land bearing Sy.No.210/4. Even if there is any encroachment as such as claimed by the defendant in Sy.No.210/4 the defendant ought to have instituted a suit against Sri.Nanjundappa who is owning and possessing the same. Contrary of the same, the aforesaid suit is instituted 10 O.S.No.6215/2012 against the plaintiff who is neither owning nor possessing the land bearing Sy.No.210/4. Under the circumstances, it is ruled out to claim that the plaintiff has encroached the extent as claimed in the suit in land bearing Sy.No.210/4. The relief claimed in the aforesaid suit is in respect of the land which is nothing to do with the plaintiff herein. As such, it is false and frivolous claim made by the plaintiff. That be so, the said decree is obtained in a fraudulent manner to lay claim over the suit property. Admittedly the suit property is the suit property which is not at the subject matter of the aforesaid suit. That be so, it is not open for the defendant to proceed against the suit property in any manner. The judgment and decree passed in the aforesaid suit is not binding on the suit property and the defendant is not entitled to claim that there is encroachment such. In order to ascertain the factual truth in the suit filed by the defendant there should be survey but the Hon'ble court was pleased to proceed only on the version of the defendant herein. Taking undue advantage of the same, the defendant is laying claim over the schedule property which is nothing to do with the judgment and decree passed in the said suit.
11. Since the defendant is the owner in possession and enjoyment of the suit property and the suit property is not the subject matter of the suit the defendant is not entitled to claim any encroachment as such or assert any claim over the same. The 11 O.S.No.6215/2012 judgment and decree passed in the aforesaid suit is in any way concerned with the suit property. There is no decree as such over the schedule property and the said decree is not liable to be neither proceeded nor binding. The defendant is no more holding any right, title or interest over the land that tool which is in the possession of the various purchasers who have purchased the sites from the rightful owner. Even in such circumstances, the defendant is not entitled to claim right over the suit property. In fact the defendant who has knowledge of the land owned by the plaintiff but the plaintiff was made party in that suit, but the land is altogether different. Hence, the judgment and decree passed in the said suit is nothing to do with the neither suit property nor binding. Inspite of it, the defendant is laying false and frivolous claim without any basis and substance. Since the defendant is laying claim over the suit property under the guise of the aforesaid judgment and decree the suit property under the guise of the aforesaid judgment and decree the plaintiff is seeking declaration that the judgment and decree passed dated 27-11- 2006 passed in O.S.No.8333/1995 passed by the City Civil Judge, Bangalore is not binding on the plaintiff herein.
12. Admittedly, the plaintiff had no knowledge of the suit or the judgment and decree and decree passed in the said suit referred to supra. The plaintiff came to know the said fact only very recently through the site owners. Till then the plaintiff was 12 O.S.No.6215/2012 not aware of the same and the judgment and decree obtained in the said suit is exparte one. As already stated supra, the judgment and decree on which the defendant is asserting the claim over the suit schedule property is nothing to do with the suit property nor binding on the plaintiff. The suit property and the property as claimed by the defendant is altogether different properties. The said fact is also very well within the knowledge of the defendant herein. Inspite of it, the defendant has made the plaintiff as party to the said suit under the guise of encroachment of altogether a different property and was able to obtain exparte judgment and decree. The intention of the defendant in instituting the suit the defendant obtained Exparte judgment and decree with otherwise intention for extraneous consideration. Moreover the defendant has not to put up the said decree into execution. This itself suffice to establish the motive of defendant in instituting the suit on suppression and misrepresentation of the facts and obtaining the exparte decree. Aforesaid the judgment and decree passed in the aforesaid suit is not binging on the plaintiff
13. The suit property is not the property as claimed by the defendant in the aforesaid suit. In the aforesaid circumstances it is not open for the defendant to meddle or interfere with the schedule property. The sole intention of the defendant is to lay claim over the land in question under the guise 13 O.S.No.6215/2012 of the aforesaid decree for extraneous consideration. Absolutely there was no dispute or any obstruction by any one much less the defendant herein. Contrary to the same the defendant herein tried to interfere with the peaceful possession and enjoyment of the suit property on 4-8-12. In view of the resistance by the plaintiff the defendant failed in his attempt. The defendant and his henchmen making illegal and high handed attempts to meddle with the property in a high handed manner only for extraneous consideration but not otherwise. Admittedly, the matter with regard to the property in question is pending before the Apex court and the same has to be adjudicated in accordance with law. So also the judgment and decree on which the defendant is trying to lay claim is not binding on the plaintiff or the suit property. The said fact is very well within the knowledge of defendant inspite of it, the defendant is making illegal attempts in high handed manner. In view of the same, the plaintiff approached the jurisdictional police to take necessary action. But the jurisdictional police failed to entertain the complaint. This fact clearly shows that the jurisdictional police are also hand in glove with the defendant.
14. The act of the defendant is not only illegal but also high handed with the help of goonda elements. The sole intention of the defendant in meddling with the possession and enjoyment of the suit property is for otherwise reason for extraneous 14 O.S.No.6215/2012 consideration. It is modus operand on part of the defendant only to create problems for bargaining in terms. When once the aforesaid judgment and decree is not binding on the plaintiff it is not open for the defendant to meddle or interfere with the suit property in any manner under the guise of the aforesaid judgment and decree. It is only the plaintiff and his purchasers are entitled to enjoy the property without any interruption or any interference of whatsoever nature. The documents produced clearly show that the aforesaid judgment and decree is nothing to do with the neither plaintiff nor binding. That be so, it is not open for the defendant to interfere with the possession and enjoyment of the schedule property. But the defendant is not of such a nature.
15. The jurisdictional police failed to entertain the complaint of the plaintiff herein. Taking undue advantage of the same, the defendant herein once again tried to interfere with the possession and enjoyment of the schedule property on 13-8-2012 at about 4-30 p.m. the defendant came to the schedule property with the help of goonda and anti social elements and tried to take possession of the schedule property illegally and high handedly. Fortunately, the plaintiff resisted the illegal high handed activities of the defendant with the help of. As such, the defendant failed in his attempt taking illegal possession of the suit schedule property. It is relevant to note here that the plaintiff brought to the notice 15 O.S.No.6215/2012 of the defendant that the aforesaid judgment and decree on which the defendant is asserting claim over the schedule property is not binding is asserting claim over the plaintiff. But the defendant failed to consider the same but gave evasive replies.
16. Defendant is powerful and backed by goonda and anti social elements. The sole intention of the defendants is to knock off the property under the guise of the said decree. As already stated supra, the defendant has no right to interfere with the peaceful possession and enjoyment of the schedule property. Moreover, the defendant is also not entitled to question the enjoyment of the same under the guise of the judgment and decree.
17. Defendant is not only interfering with the possession and enjoyment of the schedule property but also trying to take possession of the property illegally and high handedly. The defendant has not respect or regard for law. The defendant may go to any extent for grabbing the schedule property. The plaintiff is a law abiding citizen having respect or regard for law. The plaintiff is not in a position to resist the illegal and high handed activities of the defendant. The plaintiff apprehending that the desperate defendant may once again try to interfere with the peaceful possession and enjoyment of the schedule property having no other option approaching this Hon'ble Court for an order of injunction against the defendants from interfering with 16 O.S.No.6215/2012 the peaceful possession and enjoyment of the schedule property. With these grounds plaintiff seeks to decree the suit.
18. The defendant who has appeared before the court in pursuance of the summons has filed written statement denying and disputing the plaint averments, where in he has contended that the defendant is an absolute owner in peaceful possession and enjoyment of the property, in Sy.No.210/2 measuring 1 acres 23 guntas situated at Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk, and the plaintiff is the utter stranger to the Sy.No.210/2 and therefore he has no locus standi to file the suit against the defendant.
19. The defendant submit that the suit is filed by the plaintiff as to dismiss for non-joinder of parties and also the suit barred by limitation and the defendant further submit that the plaintiff suppressed the Sy.No.210/3, 210/18 on actual measurement of the property on this ground the suit is liable to be dismissed.
20. The defendant submits that the plaintiff has no manner of right, title, and interest over the said suit schedule property. further the plaintiff mislead this Hon'ble court filed the frivolous suit against the defendant, the plaintiff produced the documents did not concerned the property in Sy.No.210/2, 17 O.S.No.6215/2012 measuring 1 acres 23 guntas the defendant was in possession of the suit schedule property.
21. The defendant submit that the Sy.No.210/2, in peaceful possession and enjoyment of the said property and it is further submit that the above original documents which clearly go to show that the plaintiff is an utter stranger to the suit schedule property and therefore he has no locus standi to file this suit against the defendant, further submit that the Hon'ble High Court of Karnataka has passed the order in R.F.A.No.1530/2006 on 21st day of October 2011 in favor of the defendant, hence the defendant is an the absolute owner and lawful possession of the Sy.No.210/2 and the Hon'ble Court declare the defendant was a absolute owner in possession.
22. The defendant submit that the suit schedule property is not in possession of the plaintiff, further the defendant in lawful possession and enjoyment of the suit schedule property, hence the suit is liable to be dismissed with cost and further the suit schedule property is not the Sy.No.210/3, and Sy.No.210/18 in question the plaintiff suppressed the correct survey number the plaintiff filed the written statement in O.S.No.8333/1995 the Sy.No.210/3 to extent of 1 acres 38 guntas is the absolute owner admitted by the plaintiff and further submit that the plaintiff sold an extent land 23 guntas in Sy.No.210/3 in favor of M.Murthy executed registered sale deed on 7-8-1985 and further submit 18 O.S.No.6215/2012 that the plaintiff filed the suit in item No.1 and 2 Sy.No.210/18 the plaintiff is not the owner of the property and the plaintiff filed suit suppressed the documents and sold the property in favor of 3rd parties and plaintiff without any manner of right title and interest over the property and filed a frivolous suit against the defendant further submit that the suit schedule item No 1 and 2 mentioned the boundaries, ownership, measurements is totally disputed by the defendant and further the defendant specifically denied by the alleged partition deed dated 5-1-1988 between the plaintiff and his brothers is created without any manner of right, title and interest the property further the document was created in other documents filed by the plaintiff is also concocted and fabricated and created documents for the purpose of only filing this case.
23. The court fee paid on the plaint is not proper as stated in the above suit schedule property therefore the suit is not properly valued and the court fee paid on the plaint is not sufficient on this ground the suit is liable to be dismiss with cost.
24. The plaintiff suppressing the material facts of case. It clearly shows that the plaintiffs have no legal right, title or interest over the suit schedule property and the purchasers are all necessary and proper parties in the said suit and also plaintiff without possession the above suit property itself not maintainable.
19 O.S.No.6215/201225. The defendant submits that all other allegations of the above case the defendant here by denied and false and concocted story of the plaintiff.
26. The suit is filed and suppressing above material facts and filed this frivolous suit. Since the plaintiff is guilty of suppressing material facts and since he have not approached this Hon'ble court with clean hands. With these contentions defendant seeks to dismiss the suit.
27. Based on the above pleadings my predecessor has framed the following issues;
1. Whether the judgment and decree passed in O.S.No.8333/1995 dated 27.11.2006 is not in respect of the suit schedule properties and not binding on him?
2. Whether the plaintiff further proves that he is in possession of suit schedule properties?
3. Whether the plaintiff proves the interference to his possession of suit schedule properties by the defendant?
4. Whether the suit is bad for non-joinder of necessary parties?
5. What order or decree?
28. To prove the plaint averments plaintiff himself examined as P.W.1, and got marked Ex.P.1 to 44, Ex.P.1 is 20 O.S.No.6215/2012 mutation registration extract, Ex.P.2 is survey sketch, Ex.P.3 is certified copy of the plaint in O.S.8333/1995, Ex.P.4 and P5 is certified copy of the judgment in O.S.8333/95, Ex.P.6 is certified copy of the decree in O.S.8333/1995, Ex.P.7 is sketch, Ex.P.8 is Akarbandh uthar, Ex.P.9 to Ex.P.40 RTCs, Ex.P.41 MR, Ex.P.42 application for survey, Ex.P.43 revenue surveyor notice, Ex.P.44 is survey report.
29. To prove the defence the defendant himself examined as D.W.1 and Ex.D.1 to 58 are marked. Ex.D.1 is certified copy of the FDP, Ex.D.2 is certified copy of the partition deed dated 07/05/2010, Ex.D.3 to Ex.D.24 is RTC, Ex.D.25 & 26 are MR, Ex.D.27 to Ex.D.45 are tax paid receipts, Ex.D.46 to Ex.D.54 are encumbrance certificates, Ex.D.55 is certified copy of the judgment and decree in O.S.8333/1995, Ex.D.56 is certified copy of the judgment and decree in O.S.9012/2013, Ex.D.57 is certified copy judgment in RFA 1530/2006, Ex.D.58 is certified copy of the judgment in RFA 1530/2006. Apart from these documents chief examination of K.R.Rajanna in O.S.7083/2010 which is confronted during cross examination is also marked as Ex.D.1, and chief examination of K.R.Rajanna in O.S.7420/2010 which is confronted during cross examination is also marked as Ex.D.2.
30. Heard the arguments and perused the records.
21 O.S.No.6215/201231. My finding on the above issues are:-
Issue No.1: In the affirmative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In partly affirmative Issue No.5: As per final order, For the following:-
REASONS
32. Issue Nos.1:- The plaintiff has filed this suit against the defendant for the relief of declaration to declare the judgment and decree passed in O.S.8333/1995 by the city civil judge, Bangalore is not in respect of suit schedule property and not binding on the same, and for permanent injunction restraining defendants and their agents, servants, administrators, henchmen or any other person claiming under or through them from interfering with the peaceful possession and enjoyment of the schedule property, cost and such other reliefs.
33. Hence it very much necessary to consider the parties and properties involved in the both suits. O.S.8333/1995 is filed by the defendant-Venkatesh-herein who is plaintiff in that case, against the Rajanna.K.R-plaintiff herein for the relief of mandatory injunction directing the defendant therein to demolish the unauthorised shed and compound wall put up in the land of the 22 O.S.No.6215/2012 Plaintiff by encroaching upon land of the plaintiff to the extent of 40x850 fts, to vacate and deliver vacant possession of the encroached land of the plaintiff to an extent of 40x850 fts in Sy No 210/2 of kodigehalli which is described in schedule-B to the plaint, etc., Schedule-A of the plaint is " all that piece and parcel of agricultural land bearing Sy No.210/2, measuring 1 acre 23 guntas, situated in kodigehalli village, yelahanka hobli, Bangalore north taluk, bounded on the East:- land of Ramaiah, West:- Land of Marappa and others, North:- land of Narayanappa, south:-
Land of Rajanna, Schedule B, all that piece and parcel of encroached land in Sy.No.210/4, of kodigenahalli village, Yelahanka hobli, Bangalore north taluk, measuring to an extent of 850 ft x 40 ft and bounded on; East:- Ramaiah's land, west:- Land of Marappa and others, North:- Remaining land in Sy.No.210/2 belongs to plaintiff(Venkatesh), south:- land of the defendant in Sy No. 210/4. Certified copy of the plaint in O.S.8333/1995 is produced at Ex-P-3.
34. The judgment of the O.S.8333/1995 is produced at Ex-P-4, in the said judgment it is ordered that "suit is decreed, defendant is directed by an order of mandatory injunction to remove the encroachment by demolishing the structure in an area of 40x850 fts, comprised in Sy No.210/2 of kodigehalli village, Yelahanka Hobli, Bangalore north Taluk, and deliver vacant possession of such property to plaintiff, defendant is further 23 O.S.No.6215/2012 directed by an order of permanent injunction not to interfere with plaintiff's lawful possession of suit property either by himself or through his men, agents etc.,". In the said suit plaintiff herein is the defendant has appeared and filed the written statement also but has not chosen to adduce any evidence either oral or documentary.
35. Now the present suit is filed by the plaintiff herein who is the defendant in that case against the defendant who is the plaintiff in that case, to declare the judgment and decree passed in O.S.8333/1995 by the city civil judge, Bangalore is not in respect of suit schedule property and not binding on the same, and for permanent injunction restraining defendants and their agents, servants, administrators, henchmen or any other person claiming under or through them from interfering with the peaceful possession and enjoyment of the schedule property, cost and such other reliefs.
36. Hence let's consider the suit schedule property of this case, i.e., Item No 1 all that piece and parcel of land bearing Sy No 210/18, situated at Kodigehalli, Yelahanka hobli, Bangalore north taluk, measuring 1 acre 20 guntas bounded on; East:- Sri Muthurayappa's land, west:- Aswathappa's land, North:- Sri Muniraju's land, south:- Sri Shivanna's land, Item No-2, all that piece and parcel of the land bearing Sy No 210/18 , situated at 24 O.S.No.6215/2012 Kodigehalli, Yelahanka hobli, Bangalore north taluk, measuring 20 guntas bounded on; East:- Road, west:- Sri Muthurayappa's land, North:- Sri Muthurayappa's land, south:- Sri Shivanna's land. Initially it was Sy No was mentioned as 210/3 later it is amended as 210/18.
37. This suit is filed by the plaintiff against the above said reliefs on the ground that defendant is laying claim on the suit schedule property under the guise of judgment and decree dated 27/11/2006 passed in O.S.8333/1995.
38. The plaintiff claims that the judgment and decree passed in O.S.8333/1995 is not binding on him. It is admitted fact that the judgment and decree passed in O.S.8333/1995 is not challenged in appeal and no execution is filed. When the judgment is not set aside or not modified by the appellate court the same is binding on the defendant/JDR in so far as the suit property of that case is concerned. In this case the definite contention of the plaintiff is that the defendant who is the plaintiff in O.S.8333/1995 has obtained the decree to an extent of 40x850 fts in Sy No 210/2 of kodigehalli, is claiming right over the Item No 1 all that piece and parcel of land bearing Sy No 210/18, situated at Kodigehalli, Yelahanka hobli, Bangalore north taluk, measuring 1 acre 20 guntas bounded on; East:- Sri Muthurayappa's land, west:- Aswathappa's land, North:- Sri 25 O.S.No.6215/2012 Muniraju's land, south:- Sri Shivanna's land, Item No-2, all that piece and parcel of the land bearing Sy No 210/18 , situated at Kodigehalli, Yelahanka hobli, Bangalore north taluk, measuring 20 guntas bounded on; East:- Road, west:- Sri Muthurayappa's land, North:- Sri Muthurayappa's land, south:- Sri Shivanna's land - the present suit schedule property.
39. On comparison of the both survey Numbers and properties in both suits it is clear that O.S. 8333/1995 is with respect to Sy No 210/2 measuring 1 acre 23 guntas and 'B' schedule Sy No 210/4, whereas the present suit schedule property is Sy No.210/3(new No 210/18) in two items. The boundaries of all the suit schedule property is entirely different and judgment and decree in O.S.8333/1995 is for demolition of construction in in an area of 40x850 fts, comprised in Sy No.210/2 of kodigehalli village, Yelahanka hobli, Bangalore north taluk. Hence it is very much clear that the properties are in both suits are entirely different and defendant cannot claim suit property on the basis of the judgment and decree passed in O.S.8333/1995, hence the issue No 1 is held in affirmative.
40. Issue Nos.2 and 3:- Issue No.2 and 3 are taken together for common discussion since both issues are inter woven. These issues are framed with regard to possession and interference of the plaintiff over the suit schedule property. It is 26 O.S.No.6215/2012 the burden of the plaintiff to establish the possession of the suit schedule properties and also interference by the defendant. The plaintiff has filed the suit in respect of all suit schedule properties which are in 2 items measuring 2 acres. During the cross- examination the plaintiff has categorically admitted in page No.5 para No.10 "out of 1 acre 20 guntas in suit item No.1 property, I am the owner for only for 30 guntas. In respect of the remaining 30 guntas in suit item No.1 property I am neither the owner nor in possession of the same. In the remaining said 30 guntas, for which I am not owner of 10 guntas was used for road and remaining 20 guntas sold as sites". In para No.11 he has admitted that, "it is true to suggest that the boundaries shown in respect of item No.1 of suit schedule property are not relating to only 30 guntas of land owned by me". Para No.12 "in suit item No.1 property, I have sold 6 sites measuring 30ftX50ft and this sites measuring 40ftX30ft other than the cross road, I have road measuring 25ftX240ft touching the said sites, all the said 12 sites sold showing in Sy.No.210/3". In para No.13 " the owners of the said 12 sites constructed houses and residing therein". In para No.24 "I was never in possession of 1 acre 23 guntas in Sy.No.210/2 I am not affected by the judgment and decree passed in O.S.No.8333/1995". In para No.31 "I am not the owner of suit schedule item No.2 property". In para No.32 "it is true to suggest that I was not the owner of the suit schedule item No.2 property as on the date of filing this suit. It is true to suggest that 27 O.S.No.6215/2012 I was/am not in possession of suit item No.2 property". In the para No.33 "suit item No.2 property is owned by different persons, who have constructed their residential building". In para No.34 "before filing this suit I had sold suit item No.2 property to Murthy. I can produce sale deed executed in favour of Murthy". In page No.11 para No.2 "I have executed about 10 sale deeds in respect of sites". In page No.13 at para No.15 "it is true to suggest that 5 purchasers out of the said 12 purchasers filed different suits against me. I have given evidence in the said 5 suits". Para No.44 in page No.18 "it is true to suggest that all the 15 purchasers to whom I have executed the registered sale deeds are in possession and enjoyment of this suit schedule properties". In para No.47 "for suggesting that on 3rd week of July 2012, the defendant had not interfered with the possession of your property, the witness answers that the defendants threatened the persons to whom I sold the sites". In para No.50 page No.19 "I am in possession of only 30 guntas of land in both suit schedule properties". Para No.53 "on 4-8-2012, the defendant had not interfered with the possession of my property". In para No.54 "it is true that the defendant never interfered with the property in my possession". All these admissions clearly goes to show that though the plaintiff has filed suits for 2 acres of land is not in possession of entire 2 acres of land and though the suit schedule properties are 2 different items in the same Sy.No. The boundaries are different but the plaintiff has shown boundaries of 28 O.S.No.6215/2012 1 acre 20 guntas of item No.1 property though he is only owner for 30 guntas of land. The relief of injunction can be granted only where there is plaintiff is in possession and his right is invaded by the defendant but here in this case the plaintiff has categorically admitted that he is not in possession of entire 2 acre of land and he has sold the property by forming sites to various sites it means to show that he is not the owner of entire 2 acres of land of the suit schedule property nor he is in possession of entire 2 acres of land, admittedly he has sold several sites and the owners who have purchased the said sites are in possession of the property and he has categorically admitted that, on 4-8-2012 the defendant has not tried to interfere in his possession when the facts discloses that the plaintiff is not owner of entire 2 acre of land and not in possession of entire 2 acre of land and there is no interference of claim by defendant on 4-8-2012. The issue No.2 and 3 are held in negative since the plaintiff is failed to prove the possession interference and ownership of suit schedule properties except 30 guntas. Hence issue No.2 and 3 held in negative.
41. Issue Nos.4:- admittedly during the cross examination the P.W.1 has categorically admitted that, he has sold 12 sites in the suit property and the purchasers are constructed the houses and residing therein and they have also filed the suit against him.
When the plaintiff has sold the suit property by forming sites 29 O.S.No.6215/2012 except 30 guntas he cannot claim the relief of injunction so far as entire 2 acre of land is concerned. In the absence of the purchasers the plaintiff is not entitle for the relief of permanent injunction for non-joinder of necessary parties. Hence issue No.4 is held partly affirmative.
42. Issue Nos.5:- In view of my findings on the above issues, I proceed to pass the following:-
ORDER Suit of the plaintiff is decreed partly, it is declared that the judgment and decree passed in O.S.8333/1995 is not binding on the present suit schedule property. So far as relief of permanent injunction is concerned suit of the plaintiff is dismissed.
No order as to costs, Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 24th day of February, 2019.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY 30 O.S.No.6215/2012 SCHEDULE PROPERTY Item No.1 All that piece and parcel of the land bearing Sy.No.210/18, situated at Kodigehalli, Yelahanka Hobli, Bengaluru North Taluk, measuring 1 acre 20 guntas bounded on the:
East by: Sri Mutharayappa's land West by: Sri Aswathappa's land North by: Sri Muniraju's land South by: Sri Shivanna's land Item No.2
All that piece and parcel of the land bearing Sy.No.210/18, situated at Kodigehalli, Yelahanka Hobli, Bengaluru North Taluk, measuring 20 guntas bounded on the:
East by: Road
West by: Sri Muthurayappa's land
North by: Sri Muthurayappa's land
South by: Sri Shivanna's land
ANNEXURE
I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Sri Rajanna
(b) Defendant's side :
D.W.1: D. Venkatesh
31 O.S.No.6215/2012
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Certified copy of mutation registration extract Ex.P.2: Certified copy of sketch Ex.P.3: Certified copy of plaint in O.S.No.8333/1995 Ex.P.4 and Certified copy of the judgment in P.5: O.S.8333/95 Ex.P.6: Certified copy of the decree in O.S.8333/1995 Ex.P.7: Certified copy of survey sketch Ex.P.8: Certified copy of Akarband Ex.P.9 to RTCs P40:
Ex.P.41: Mutation register extract Ex.P.42: application for survey Ex.P.43: revenue surveyor notice Ex.P.44: Survey report
(b) Defendants side :
Ex.D.1: Certified copy of final decree in
O.S.No.3424/1990
Ex.D.2: Certified copy of partition deed dated
07.05.2010
Ex.D.3 to 17 certified copies of RTCs
D.19:
Ex.D.20 to 5 certified copies of RTCs
D.24:
Ex.D.25 & Two MR extracts
D.26:
Ex.D.27 to 19 certified copy of tax paid receipts D.45:32 O.S.No.6215/2012
Ex.D.46 to 9 certified copies of encumbrance D.54: certificates Ex.D.55: Certified copy of judgment and decree passed in O.S.No.8333/1995 Ex.D.56: Certified copy of judgment and decree passed in O.S.No.9012/2013 Ex.D.57: Certified copy of judgment and decree passed in RFA No.1530/2006 dated 21.10.2011 Ex.D.58: Certified copy of judgment and decree passed in R.F.A.No.1530/2006 dated 20.07.2018 Apart from these documents chief examination of K.R.Rajanna in O.S.7083/2010 which is confronted during cross examination is also marked as Ex.D.1, and chief examination of K.R.Rajanna in O.S.7420/2010 which is confronted during cross examination is also marked as Ex.D.2.
XII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.