Bangalore District Court
J.Vasudeva vs J.V.Venkatesh on 21 February, 2022
1
OS.No.3025/2011
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 21st February 2022
PRESENT
Sri.NAGARAJAPPA. A.K., B.Com., LL.M.
XVIII Addl.City Civil Judge.
O.S.No.3025/2011
Plaintiffs: 1. J.Vasudeva,
S/o Late V. Janardhan Naidu,
Aged about 50years,
R/at No.14, Gandudi Kichaiah Lane
Rangaswamy Temple Street,
Bangalore -53.
2. Smt.Bhuvaneshwari,
W/o Late J.Murthy,
Aged about 46 years,
R/at No.47, Beereshwaraswamy
Krupa Building,
Marappa Layout, Ideal Home,
1st Cross, Doddivatara,
Rajarajeshwari Nagar,
Bangalore - 98
[By Sri.C.R.G., Advocate]
/VS/
Defendants: 1.J.V.Venkatesh,
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OS.No.3025/2011
S/o V.Janardhan Naidu,
Aged about 62 years,
R/at No.70, 3rd Cross, 2nd Stage,
Okalipuram, Bangalore - 21
(SINCE DEAD BY Lrs)
(a) Kamalraj,
S/o Late J.V. Venkatesh Major,
R/at No.70, 3rd Cross, 2nd Stage,
Okalipuram, Bangalore - 21
[PLACED EXPARTE]
2. Smt.K.R. Prabhavathi,
W/o V. Venkatesh,
Aged about 59 years,
R/at No.70, 3rd Cross, 2nd Stage,
Okalipuram, Bangalore - 21
[PLACED EXPARTE]
3. A.J. Prathap
S/o Late K.Janardhan
Aged about 59 years,
R/at No.37, Thirumalai Avenue,
South Mada Street,
Thiruvotriyur, Chennai - 600 019.
4. Smt.Puttalakshmi,
D/o Late B.Rajanna,
W/o N.Sathyanarayana,
Aged about 41 years,
R/at No.470, 59/4, 6th A Cross,
Triveni Road, K.N.Extention,
Yeshwanthpura, Bangalore - 22
(SINCE DEAD BY Lrs)
(a) Sathyanarayana,
S/o Late D.P.Narasaiah,.
Husband of Late Puttalakshmi,
Aged about 63 years,
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OS.No.3025/2011
(b) Smt. S. Pallavi,
D/o Late Puttalakshmi,
Aged about 29 years,
(c) S.Pramod,
S/o Late Puttalakshmi,
Aged about 26 years,
All are R/at No.470, 59/4,
6th A Cross, Triveni Road,
K.N.Extension, Yeshwanthpura,
Bangalore - 22.
[By Sri.B.R.N., Adv for
D3,Sri.P.T.H., Adv. For D4(a) to (c)
D1 & 2 are placed exparte]
Date of institution of 21.04.2011
suit
Nature of the suit Declaration, permanent injunction
(Suit on pronote, suit
for declaration and
possession suit for
injunction, etc.
Date of the 27.10.2017
commencement of
recording of the
evidence.
Date on which the 21.02.2022
Judgment was
pronounced.
Year/s Month/s day/s
Total duration: 10 10 00
(NAGARAJAPPA. A.K.)
XVIII Addl.City Civil Judge, Bangalore.
4
OS.No.3025/2011
J UD GME N T
The plaintiffs have filed this suit against the
defendants for the relief of declaration to declare that
plaintiffs are the absolute owners of the suit schedule
property by way of adverse possession. Further they have
sought for permanent injunction restraining the
defendants, their agents, henchmen, servants, officials
etc., from interfering with the peaceful possession and
enjoyment of the suit schedule property by the plaintiff
and by way of amendment sought to declare the
judgment and decree passed in OS.No.3786/2011
dtd.1.7.2011 by the Addl.City Civil Judge, Bangalore
(CCH-26) is void and not binding on the plaintiffs.
2. The nutshell case of the plaintiff are as follows:
The suit schedule property bearing No.14, & 33
situated at Gandudi Kichaiah Lane, Rangaswamy Temple
Street Bangalore measuring east-west 33 feet and north-
south 30 feet originally belongs to one Potham
Ramamurthy who acquired the same under registered
Gift deed dtd.14.6.1956 from his mother. The said
Potham Ramamurthy died intestate leaving behind his
sister A.J.Parvathy Devi. She inherited the same and
had been in absolute possession and enjoyment. After
the death of her husband Janardhana, she professes
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OS.No.3025/2011
some religious rituals and lived as a saint and the people
treated the said property as Mutt. The revenue records
were mutated as Mutt, despite occupied and enjoyed by
Parvathy Devi. Later she renounced the religious work
and started leading social life and lived with her son 3 rd
defendant. She was residing in the suit schedule
property for a short period and started living in Madras
till her death by abandoning the suit schedule property
Since from the birth the plaintiff No.1 and his brothers
residing in the suit schedule property and plaintiff No.1
& husband of 2nd plaintiff had occupied the said property
as there was no objection from Parvathi Devi. They
allowed the plaintiffs to occupy the suit schedule
property without any objection, as the value of the
property is not much at that time. Plaintiffs were in
possession and enjoyment of the suit schedule property
since 1980 and husband of 2 nd plaintiff started a service
station and garage of motor bikes and scooter in the
name and style Komal Auto Centre in the suit schedule
property. The documents were standing in the name of
Smt.Parvathy Devi till 1988. Plaintiffs have been in
continuous possession and enjoyment of the suit
schedule property without any interruption till recently.
Since 1986 Smt.Parvathi Devi did not claim any right or
any benefit, but allowed the plaintiff to enjoy the
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OS.No.3025/2011
property. At the time of shifting her residence from
Bangalore to Madras, plaintiffs had financially assisted
her. The property has been occupied with complete
knowledge of Parvathy Devi. For the last 30years,
plaintiffs have been in possession and enjoyment of the
suit schedule property along with J.Murthy till his death
and thereafter the plaintiff No.1 and his younger
brother's wife ie., 2nd plaintiff along with her children.
3. The plaintiffs have further pleaded that the 1 st
defendant being the elder brother of plaintiff No.1 had
created a Will purported to be executed by Late Parvathi
Devi bequeathing the suit schedule property in his favour
and by virtue of the concocted Will he has executed a
Gift deed in favour of his wife 2 nd defendant. When they
brought the fraud played by the defendant No.1 & 2, CCB
Police have registered a Criminal Case against the
defendants. In the enquiry it was revealed that there was
no such will executed by Smt.Parvathi Devi. The
defendant No.1& 2 have now instigated the 3 rd defendant
to interfere and disturb the peaceful possession and
enjoyment of the suit schedule property by the plaintiffs
and their family members without any reasonable
ground. Defendant No.1 to 3 colluded together are
making hectic attempts to dispossess the plaintiffs from
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OS.No.3025/2011
the suit schedule property. The defendant No.3
demanding huge amount in the form of compensation.
The defendant No.3 started to interfere only about 2
years back in the month of December 2009. Plaintiffs are
in possession and enjoyment of the suit schedule
property for the last 28 years, Smt.Parvathi Devi as well
as her son 3rd defendant adverse to their interest without
any interference by him. Since Parvathi Devi shifted her
residence from Bangalore to Madras, abandoned her
rights over the suit schedule property, as the plaintiffs
are well wishers and belong to her caste. The 3 rd
defendant nor any body else have claimed right till
December 2009. Hence, plaintiffs are seeking the relief
of adverse possession.
4. The plaintiffs have further pleaded that the CCB
Police have filed charge sheet alleging that 2 nd defendant
and son of 1st defendant ie., defendant No.1(a) fabricated
the Will in order to knock of the suit schedule property.
The defendant No.4 and 2 are hand in glove and filed the
suit in OS.No.3786/2011 before CCH -26 where both
parties got referred the matter to the mediation and by
filing a compromise petition and settled the dispute
between them and obtained a collusive decree to deprive
the right of the plaintiffs. The said collusive decree is not
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OS.No.3025/2011
binding on the plaintiffs and it does not convey any right
or title in favour of defendant No.4, as the defendant no.1
& 2 had no manner of right over the suit schedule
property to convey the same in favour of 4 th defendant.
The transaction between the defendant No.1 to 4 is a
sham transaction. Hence, prayed to decree the suit.
5. In spite of service of summons defendant No.1 & 2
remained absent and they were placed exparte. After
service of summons the defendant No.3 & 4 appeared
through their counsel and filed their written statements.
6. In the written statement the 3rd defendant has
pleaded that suit schedule property originally belongs to
Smt. Tholasiamma, she had gifted the same in favour of
Pothum Ramamurthy through registered gift deed
dtd.14.6.1956, said Pothum Ramamurthy died intestate
on 21.11.1961 leaving surviving sister Smt.A.J.Parvathi
Devi as his only legal heir. The said Pothum Ramamurthy
was not married. Katha of the suit property standing in
her name and she has been paying taxes regularly. She
has executed the registered GPA in favour of 3 rd defendant
as her son on 4.2.1991 authorising him to deal with the
schedule property. Subsequently A.J.Parvathy Devi
executed the Will dtd.5.10.1994 bequeathing the suit
schedule property in favour of 3 rd defendant and after her
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OS.No.3025/2011
death on 26.12.1995, the 3 rd defendants succeeded to the
suit schedule property and became absolute owner.
7. The 3rd defendant further pleaded that one Mr.
Janardhana was the tenant in the suit schedule property
and his mother was collecting rents from him till her death
and thereafter 3rd defendant used to collect the rents.
During the life time of said Janardhana he had driven his
son Venkatesh - 1st defendant out of the house. After the
death of Janardhana, his 3rd son J.Murthy was in
possession as a tenant running scooter garage in a portion
of the schedule property by paying rents to the 3 rd
defendant. After his death, his wife 2 nd plaintiff was paying
rents and the remaining portion of the schedule property
is in the possession of the 3 rd defendant. 1St plaintiff is not
in possession and enjoyment of the suit schedule property.
The 3rd defendant after came to know from the Asst.
Revenue Office, Corporation of City of Bangalore that the
2nd defendant had applied for charge of katha in her name;
He also informed the said 1 st defendant has produced a
Will dtd.27.5.1960 alleged to have been executed in favour
of A.J.Parvathy Devi by Late Tholasamma. He has also
produced a Will dtd.18.2.1984 alleged to have been
executed by Smt.Parvathy Devi in his favour. The said
J.Venkatesh, husband of 2nd defendant is no way related to
the family of 3rd defendant. He is falsely claiming that he is
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OS.No.3025/2011
the grand son of Smt.Parvathy Devi who is the mother of
3rd defendant. In the alleged Will Tholasamma signed in
Kannada language, in fact said Tholasamma was not
knowing Kannada language. It is further pleaded that
J.Venkatesh has created certain documents and trying to
grab the property illegally, through a deed of gift
dtd.23.1.2004 executed in favour of his wife. The 3 rd
defendant has lodged police complaint with CCB and they
have submitted the report. Meanwhile the defendant No.2
colluding with defendant No.4 have filed
OS.No.3786/2007 on the file of city civil court
dtd.28.5.2011 and deliberately they have not made him as
a party to the said suit though the suit schedule property
standing in the name of his mother Smt. Parvathy Devi till
date. The 2nd defendant is colluding with 4th defendant
entered in to a memorandum of agreement before
mediation and obtained a collusive compromise decree in
OS.No.3786/2011 and on the basis of the same she had
filed Ex.No.1671/2011. The plaintiff who is none other
than the brother-in -law of 2nd defendant colluding with
each other had filed the present suit. Same is not
maintainable. The father of the plaintiff and 1 st defendant
and father in law of 2nd defendant Mr.Janardhan was a
tenant under the mother of 3rd defendant and was paying
rent and he has also written many letters to his mother
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OS.No.3025/2011
with regard to payment of rents. The tenancy was
continued by the husband of 2nd plaintiff and used to pay
rents till his death. After his death the plaintiff No.1 & 2
colluding with defendant No.1 & 2 have filed the present
suit to harass the 3rd defendant and to knock off the
valuable property. The plaintiffs were never in possession
of the suit schedule property as adverse to the 3 rd
defendant.
8. The 3rd defendant has further pleaded that the
2nd defendant and her husband have created the Will
alleged to have been executed by his mother by forging the
signature. Police have registered FIR no.114/2008 against
the 2nd defendant and her husband J.Venkatesh and their
son Kamal Raj for the offences punishable u/s 468,
471,420 r/w Sec.34 of IPC and also filed the charge sheet.
The defendant No.2 colluding with defendant No.4 has
created some documents stating that the schedule
property is the ancestral property of defendant No.4, those
documents are no way related to the schedule property
and they are not in possession of the same. On the above
grounds, prayed to dismiss the suit.
9. In the written statement the 4 th defendant has
denied entire plaint averments and contended that the
suit property was one of the co-parcenery properties of
12
OS.No.3025/2011
family of Sakkare Mandi Thammanna. He and his brothers
were co-owners and in lawful possession and enjoyment of
the suit schedule property along with other co-parceners
as members of Hindu Undivided Family. One of the
brother of Sakkare Mandi Thammanna file OS.No.11/1926
for partition and separate possession of their entire co-
parcenery properties including the suit schedule property
the said suit has been decreed. One Smt.Muniyamma the
only daughter in the HUF of Sakkare Mandi Thammanna,
was a widow as she lost her husband in an early age,
there was only one dependent son Rajanna. Therefore
Sakkare Mandi Thammanna and is brothers with a
bonafide intention to settle her widowed daughter the suit
property was registered in the name of Smt.Muniyamma
under registered settled deed dtd.25.2.1948. After the
death of Smt.Muniyamma, her son Rajanna succeeded the
said property. The said Rajanna also subsequently died,
leaving behind his only daughter Puttalakshmi - 4 th
defendant. The title of the suit property is traced to the
decree passed by the competent civil court in
OS.NO.11/1926. The 4th defendant claims that she had
been the absolute owner and in lawful possession and
enjoyment of the suit schedule property
10. The 4th defendant further pleaded that as the 2 nd
defendant trespassed into the suit schedule property, she
13
OS.No.3025/2011
had filed OS.No.3786/2011 for declaration and possession
and the same was compromised on 30.6.2011. In the said
suit, Smt.K.R. Prabhavathi the sole defendant failed to
deliver possession in terms of the decree, 4 th defendant
filed Ex.No.1671/2011 to execute the decree
dtd.30.6.2011.
11. The 4th defendant further pleaded that the 3rd
defendant filed application under Order 21 rule 97 CPC in
Ex.No1671/2011 to object the delivery of possession and
the said application was dismissed in view of pendency of
the above suit. The 2nd defendant herein had admitted the
title of the 4th defendant in OS.No.3786/2011 and he has
no claim in respect of the suit schedule property as
against the 4th defendant. Further defendant No.3 is
claiming himself as the alleged legal representative an
alleged legatee of Smt.Parvathi Devi, therefore plaintiffs
have no claim whatsoever against the defendant No.4.
Thulasamma was not the owner or possession of the suit
schedule property at any point of time. The 3 rd defendant
did not derive any right, title or interest over the suit
schedule property as the said Thulasamma herself did not
have any title to execute the alleged gift deed. The
plaintiffs and defendant No.1 to 3 are claiming the suit
schedule property in OS.No.3786/201 as suit property in
OS.NO.3025/2011 by describing the northern side
14
OS.No.3025/2011
boundary erroneously showing as belongs to one
Smt.Kamalamma. The defendant No.4 further pleaded that
her title is traced to the coparcener property which was
subject to a civil court decree in OS.NO.11/1926 for
partition determining the shares of he coparceners and
ultimately 4th defendant. She has valid and absolute title
and she is entitled for possession as per the decree passed
in OS.NO.3786/2011. Hence, prayed to dismiss the suit.
12. After the death of defendant No.4, the defendant
No.4(c) has also filed additional written statement
contending that the plaintiffs have filed the above suit to
declare them as absolute owners of the suit schedule
property by way of adverse possession which is
impermissible in law as the plaintiffs have not complied
with the requisition of the principles nec vi nec clam nec
precario. Under the said sole ground the suit is liable to
be dismissed.
13. On the basis of the above pleadings the
predecessor in office has framed the following issues:
1.Deleted as per order dtd.2.2.2021
2. Reframed as Addl.Issue No.1 as per order dtd.1.12.2021
3. Whether the plaintiffs further prove that they were in possession and enjoyment of the suit schedule property as on the date of the suit?
4. Whether the plaintiffs further prove the alleged 15 OS.No.3025/2011 interference by the defendants?
5. Whether the defendant No.3 proves that he become the owner of the suit schedule property by virtue of the Will dated 5.10.1994 executed by his mother in his favour?
6. Whether the defendant No.3 further proves that the plaintiffs and defendant No.1 and father in law of defendant No.2 were tenants under the mother of defendant No.3?
7. Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as prayed?
8. What decree or order?
Addl. Issues framed on 1.12.2021
1. Whether the plaintiffs prove that they have perfected their title by way of adverse possession openly, continuously, uninterruptedly and hostile to the knowledge of the defendant?
2. Whether the defendant No.4 proves that she is the absolute owner of the suit schedule property?
3. Whether the plaintiffs prove that the judgment and decree passed in OS.No.3786/2011 is not binding on them?
14. Plaintiffs got examined 1st plaintiff as PW1, got marked the documents at Ex.P1 to P20 and closed their side. The Defendants got examined defendant No.3 & 4(c) as DW1 & 2, got marked the documents at Ex.D1 to 52 and closed their side.
15. Heard, the arguments of both sides. The learned counsel for the plaintiffs has relied on the decisions 16 OS.No.3025/2011 reported in AIR 2019 SC 3827 - Ravinder Kaur Grewal and Ors. Vs. Manjit Kaur & Ors and (2019) 14 SCC 224
-T.K.Mohammed Abubucker (dead) through Lrs. And others Vs. PSM Ahmed Abdul Khader & others . Per contra, the learned counsel for the defendant No.4 has relied on the decisions reported AIR 2003 SC 718 - Abdul Rahman Vs.Prasony Bai & others. I have also considered the arguments of both parties counsels and citations with utmost reverence.
16. My findings on the above issues are as under:
Issue No.3 : In partly affirmative
Issue No.4 : In the affirmative
Issue No.5 : In the affirmative
Issue No.6 : In the affirmative
Issue No.7 : In partly affirmative
Addl.Issue No.1: In the negative
Addl.Issue No.2: In the negative
Addl.Issue No.3: In the affirmative
Issue No.8 : As per final order,
For the following:
REA S ON S
17. Issue No.3, 6 and Addl.Issue No.1:- Since
these issues are interlinked with each other, they are taken up together for consideration to avoid repetition.
18. In this case, it is an admitted fact that the plaintiff No.1, husband of 2nd plaintiff, and defendant 17 OS.No.3025/2011 No.1 are brothers and they are the sons of V.Janardhan. It is also an undisputed fact that 3rd defendant is the son of Smt.A.J.Parvathy Devi. Admittedly, plaintiffs have filed this suit against the defendant No.1 to 3 claiming that they are the absolute owners of the suit schedule property by way of adverse possession and also sought for permanent injunction. Subsequently, Defendant No.4 was impleaded in the above suit claiming that she is the owner of the suit schedule property. The specific and foremost contention of the plaintiffs is that originally the suit schedule property belongs to one Potham Ramamurthy who had acquired the said property through registered gift deed dtd.14.6.1956 from his mother. After the demise of Potham Ramamurthy, his sister by name Smt.A.J.Parvathy Devi inherited the property as Potham Ramamurthy died intestate and she was the absolute owner in possession of the suit schedule property. After the demise of her husband V.Janardhana, she professes some religious rituals and lived as a saint for some time and some people have treated the suit schedule property as a Mutt. Suit property revenue records were mutated in the name of Smt.Parvathy Devi and even till today revenue documents standing in her name and subsequently, she started residing at Madras along with her son ie., 3rd defendant. Plaintiff No.1 and his brother 18 OS.No.3025/2011 J.Murthy occupied the suit schedule property as there was no objection from Parvathy Devi as they were neighbours and belonging to same community and therefore they have started residing since 1980 and started garage of motor bike in the name and style of Komal Motor Center. Though they were running the said garage till 1990, thereafter 1st plaintiff joined Government service in the RTO Department. The brother of plaintiff No.1 by name J.Murthy looked after the said garage but he died on 12.10.2008, the plaintiffs continued in possession of the property without anybodies interference uninterruptedly since more than 30 years and therefore they are the absolute owners of the property by way of adverse possession.
19. It is also the case of the plaintiffs that another of brother of 1st plaintiff ie., defendant No.1 has created a Will alleged to had been executed by Smt.Parvathy Devi relating to the suit schedule property in his favour and then he has executed the Gift Deed in favour of his wife Smt.K.R.Prabhavathy ie., 2nd defendant and thereafter police complaint was registered against them, consequently the CCB police have registered a criminal case against them. Now the 3rd defendant colluded with defendant No.1 & 2 making hectic efforts to dispossess the plaintiffs from the suit schedule property without any 19 OS.No.3025/2011 locus standi or right to disturb the possession of the plaintiffs as 3rd defendant is the son of Smt.Parvathy Devi.
20. Whereas the defendant No.1 & 2 have been placed exparte and they have not appeared before court. But, 3rd defendant has taken specific contention that though the suit schedule property belongs to his mother, Smt. Parvathy Devi and Smt. Parvathy Devi has executed a Will in his favour on 5.10.1994 bequeathing the suit schedule property and his mother died on 26.12.1995. After the death of his mother, 3rd defendant succeeded to the suit schedule property. One Janardhana was the tenant in respect of suit schedule property and mother of 3rd defendant was collecting rents from him till her death. Subsequently 3rd defendant used to collect the rents. But Janardhana died in the year 1997. During his life time he had driven his son Venkatesh - 1 st defendant out of the house in view of his way wardly life and subsequent to the death of Janardhana, his 3 rd son J.Murthy was a tenant and running the scooter garage in the portion of the suit schedule property and used to pay rent to the 3rd defendant and after his demise the 2nd plaintiff is running the garage paying rents and remaining portion is in possession of the 3 rd defendant. Further he has taken specific contention that he is the absolute owner of the suit property. 1St plaintiff is working in RTO 20 OS.No.3025/2011 and he is not in possession of the property. When 2 nd defendant applied for change of katha in her name and came to know that said J.Venkatesh has produced the Will dtd. 27.5.1960 alleged to be executed in favour of AJ.Parvathy Devi by late Tholasamma and also produced the alleged Will dtd. 18.2.1984 alleged to be executed by Smt.Parvathy Devi in his favour to grab the property illegally and then executed the gift deed in favour of 2 nd defendant and therefore 3rd defendant has filed complaint against them and police have registered case. But at the same time 2nd defendant colluded with Smt.Puttalakshmi appeared to have been filed OS.No.3786/2011 and on 28.5.2011 entered into compromise by way of memorandum of agreement before the Mediation. On the basis of the said mediation report OS.No.3786/2011 was decreed. On the basis of the collusive compromise petition, defendant No.4 filed Ex.No.1671/2011 in fact they have no right over the suit schedule property and the said Execution Petition is pending. Even the CCB police have charge sheeted against them, now they are trying to grab the property of 3rd defendant colluding with defendant No.4 etc.
21. Whereas the 4th defendant has taken specific contention that originally the suit schedule property belongs to one Sakkare Mandi Thammanna and his 21 OS.No.3025/2011 brothers were co-owners. Thereafter they had filed suit in OS.No.11/1926 for partition and as per partition, that suit came to be decreed and one Smt.Muniyamma only daughter. Smt. Muniyamma was a widow and she lost her husband in an early age and therefore for her maintenance they have given the property in favour of Muniyamma under Settlement Deed dtd.25.2.1948. The said Muniyamma died leaving his only son Rajanna and Rajanna succeeded the property and said Rajanna died leaving behind his only daughter Smt.Puttalakshmi ie., 4 th defendant. It is further taken contention that the 2 nd defendant trespassed into the suit schedule property and hence she had filed the suit in OS.No.3786/2011 for declaration and possession and ultimately, the said suit ended in compromise before mediation on 30.6.2011 and as per the compromise the 2nd defendant failed to deliver the possession of the property and hence 4th defendant had filed Ex.No.1671/2011 wherein, present suit plaintiffs and 3rd defendant have filed application under order 21 rule 97 CPC to implead them as objectors. In view of the pendency of this suit, the said application was dismissed and therefore, plaintiffs have no manner of right over the suit schedule property and 3 rd defendant is not having any right, title and interest over the suit schedule property, the 4th defendant is the absolute owner 22 OS.No.3025/2011 of the property and plaintiffs failed to prove the ingredients of Art.64 & 65 of the Limitation Act. The plaintiffs have not complied with the requisition of the principles nec vi nec clam nec precario etc. and hence she pray for dismiss the suit.
22. In view of the admitted and disputed facts whether the suit schedule property belongs to Smt.Parvathy Devi or it is belongs to Smt.Puttalakshmi, whether the plaintiffs are absolute over the suit property by virtue of adverse possession are all important points for consideration.
23. It is true as per the claim of the plaintiffs, suit schedule property is bearing No.14(old No.8) and 33 situated at Gandudi Kichaiah Lane, Rangaswamy Temple Street, Bangalore -53 measuring east to west 33 feet and north to south 30 feet consists of Mangalore Tiled house thereon and same is bounded on east by road, west by Pattaibai Girls School, north by Kamalamma's property and south by Thukkuse's property. As per the claim of the defendant No.4, they are claiming the property by filing the suit in OS.No.3786/2011 ie., property bearing site Old No.201/1-15, New No.14 and No.33 situated at Gandudi Kichaiah Lane, Rangaswamy Temple Street, 23 OS.No.3025/2011 Bangalore -53 including all rights, previleges and appurtenances thereto and measuring east to west 33 feet and north to south 30 feet total areas 990 square feet bounded on east by Gandudi Kichaiah Lane, west by Pattatbibai Girls School, north by Puttathayamma property and south by Thokkoose property. So on perusal of the suit schedule property shown in the present suit as well as the suit property shown in OS.No.3786/2011 are seems to be different properties because the present suit property is bearing No.14(old No.8 & 33 consisting of Mangalore Tiled House. Whereas in OS.No.3786/2011 it is a site property bearing No.201/1-15 New No.14 & 33 and hence both properties numbers and boundaries are not tallied.
24. It is well settle principle of law that the person who come before court, has to prove his case on the merits and demerits of the case, but he cannot make use of the weakness of the defendant as a trump card. In order to substantiate the contention of the plaintiffs they are the absolute owner of the suit property by adverse possession and they are in possession of suit property they have produced some documents those are the property register extract card as per Ex.P1 wherein the name of AJ.Parvathy Devi appeared relating to the property No.8/14, City Sy.No.6409 with sketch wherein, 24 OS.No.3025/2011 the Municipal number is shown as 8/14. Ex.P2 is the Town Evaluation Slip wherein possessor name is shown as Mutt and in Col.No.6 & 12 name of Parvathy Devi is appearing. Ex.P3 is the Garage opening card in the suit schedule property with name Kamal Auto Centre by J.V.Venkatesh, J.Vasudev and J.Murthy. Ex.P4 is the endorsement issued by Bangalore Mahanagara Palike dtd.15.6.1988 regarding payment of tax relating to the suit schedule property. Ex.P5 is the death certificate of J.Murthy. Ex.P6 is the electoral card wherein name of 1 st defendant and name of husband of 2 nd plaintiff J.Murthy and family members are appeared. Ex.P7 is the LPG gas connection letter. Ex.P8 is the endorsement issued by Revenue Department of Bangalore Mahanagara Palike. Wherein it is mentioned that when J.Vasudeva and J.Murthy filed application for change of katha, the concerned authority insisted them to produce the title deeds within 7 days. Ex.P9 is another endorsement issued by BBMP wherein A.J.Prathab s/o Parvathy Devi filed application for change of katha, they have instructed him to produce the title deeds. Ex.P10 & 11 are the APL Ration Card and Electoral ID card standing in the name of plaintiff No.1 wherein address of the suit schedule property is appeared. Ex.P12 is the copy of the complaint filed by 3rd defendant against J.Venkatesh -1 st defendant, 25 OS.No.3025/2011 defendant No.2.K.R.Prabhavathy and Kamalraj relating to forgery of title deeds standing in the name of his mother relating to property No.14 ie., suit schedule property. On the basis of the Ex.P12 police registered FIR as per Ex.P13 and filed the charge sheet as per Ex.P14 against them. Ex.P15 to 18 are the certified copies of the plaint, order sheet and memorandum of agreement filed before mediation centre in OS.No.3786/2011 said to have filed by defendant No.4 against 2nd defendant relating to property No.201/1-15 New No.14 and No.33 as described in the plaint schedule. Ex.P19 is the certified copy of the execution petition in Ex.No.1671/11. Ex.P20 is the order passed in the above said execution petition wherein present plaintiffs and 3rd defendant have impleaded as objectors. Wherein the executive court passed an order that the objector No.1 to 3 proved their possession over the suit schedule property and what ever decree passed in OS.No.3786/2011 is not binding upon the objectors and decree holder in the said petition are not entitled to proceed against the objectors relating to the said property. In view of the said document at this stage once it is crystal clear that suit schedule property katha standing in the name of Smt.A.J.Parvathy Devi till today, but there is no documentary evidence produced by the plaintiffs to show that the property standing in their name to claim 26 OS.No.3025/2011 title.
25. Further the defendant No.3 has also produced number of documents to prove that suit property originally belongs to his mother Smt.A.J.Parvathy Devi and after death of his mother, he become owner/landlord of the suit property, the plaintiffs are in possession as tenant but no title over the suit property in any manner. Ex.D1 to 40 are marked through DW1. Out of them Ex.D1 to 4 are the photographs confronted through PW1 to show the existence of suit property. Ex.D5 to 7 are the letters written by father of plaintiff No.1, defendant no.1 and father in-law of 2nd plaintiff by name Janardhan to the mother of 3rd defendant in Tamil language. The English translation were also produced and marked as Ex.D5(a) to D7(a) wherein it is mentioned that the father of plaintiff paid monthly rents to Smt.Parvathiammal. Ex.D8 to 10 are the letters written in English to Parvathiammal relating to the rent and Ex.D11 to 19are the M.O.receipts with regard to receipt of rent from Janardhana by Smt. Parvathy Devi. Ex.D20 is the certified copy of the gift deed alleged to be executed by Gulla Tholasamma infavour of Potham Ramamurthy on 14.6.1956 relating to the suit schedule property. Ex.D21 is the death certificate of Potham Ramamurthy who died on 12.11.1961. Ex.D22 is the legal heir certificate issued 27 OS.No.3025/2011 by Tahsildar, Fort-Tondiarpet Taluk, Madras wherein Smt.Parvathy Devi is shown as sister of deceased Potham Ramamurthy. Ex.D23 is the copy of the enquiry notice issued by Survey Department wherein suit schedule property number is also mentioned and address of Smt. Parvathy Devi. Ex.D24 is the sketch-form No.9 relating to the suit schedule property is also standing in the name of Parvathy Devi. Ex.D26 is the certified copy of the special notice issued u/s.145 of Corporation Act, wherein the name of Parvathy Devi appeared as owner of property bearing Municipal old No.8 and new No.14 address is mentioned in the said document is tallying with the suit schedule property. Ex.D27 is the special notice issued u/s.145 of Corporation Act 1949 to Smt.AJ.Parvathy Devi in the suit schedule property address. Ex.D28 to 31 are the certified copies of the tax paid receipts. Ex.D32 is the certified coy of the GPA executed by Smt.Parvathy Devi in favour of her son 3rd defendant relating to the suit schedule property and also produced certified copy of the registered Will executed by AJ.Parvathy Devi in favour of her son Prathap/ 3rd defendant dtd.5.10.1994 relating to the suit schedule property. Ex.D34 is the death certificate of AJ.Parvathy Devi, she died on 16.12.1995. It is evident from the above documents that the father of plaintiff No.1 Janardhan was a tenant under the mother of 3 rd 28 OS.No.3025/2011 defendant. After death of Janardhan, the plaintiffs though they have continued in portion of the suit property, as a tenant but no title over the property. Whereas 3 rd defendant being the son of Smt.Parvathy Devi succeeded the property by virtue of the Will as well as GPA holder etc.
26. Further the 3rd defendant has also produced some more documents to show that after he came to know about defendant No.1 and 2 created some documents relating to suit property and hence, he has initiated criminal action against them those are Ex.D35 is the certified copy of the complaint filed by 3 rd defendant against the defendant No.1 & 2. Ex.D37 is the certified copy of FIR in consequence of Ex.D35. Ex.D38 is the certified copy of the alleged Will executed by AJ.Parvathy Devi in favour of 1st defendant J.Venkatesh. Ex.D39 is another certified copy of the gift deed alleged to be executed by 1st defendant infavour of 2nd defendant relating to suit property. But said documents are strongly denied and disputed by the 3rd defendant and in order to prove the alleged Will and Gift deed neither defendant No.1 nor defendant No.2 contest the suit, but both are placed exparte. Ex.40 is the certified copy of the order passed in Ex.No.1671/2011 wherein the findings of the executing court as per documents placed by the objectors 29 OS.No.3025/2011 ie., present plaintiffs and 3rd defendant have proved that they are in possession of the suit schedule property and whatever findings in OS.No.3786/2011 is not binding upon them and whatever findings in OS.No.3025/2011 will bind upon both parties and till disposal of this suit, DHR/ present defendant No.4 cannot execute the decree passed in OS.No.3786/2011.
27. It is true 4th defendant has also produced some documents to show that she is the absolute owner of the suit property and those documents are marked Ex.D41 to
52. Out of them Ex.D41 is a rental agreement dtd.5.1.1955 executed by one K.V.Raghavendra Rao s/o K.N.Venkatarao in favour of Muniyamma and her son Mallaiah relating to property No.201, New No.59 measuring 33 X 10 feet bounded on towards east- Gandudi Kichaiahna Galli, west- Bhavasarakshriya PM.Lakshman Rao house, north - 184-185 houses and towards south- Ramakrishna Mutt. So the said property is no way connected to the suit property. Ex.D42 to 46 are all tax paid receipts standing in the name of K.V.Raghavan but how the said receipts are relating to the suit property itself not explained by Defendant No.4 and moreover the said K.V.Raghavan is not a party to the suit. Ex.D47 is the certified copy of field book of maping entries it is in the name of Muniyamma. The Ex.D47 also is no 30 OS.No.3025/2011 way connected to the suit property considering the boundaries, measurement as well as property number. Ex.D48 is the certified copy of the deposition recorded in Ex.No.1671/2011 given by one Bhuvaneshwari who is plaintiff No.2 in the present suit. Wherein she has deposed that there was no specific name for mutt situated in the suit property and she do not know how much amount was paid by her husband and his brother to Parvathy Devi in 1960 and also admitted that the boundaries shown in Ex.O1 and boundaries mentioned in the decree of OS.No.3786/2011 are different. She has not produced any documents to show that her husband was residing in the schedule property. Her husband and his brothers never paid rent to Potham Ramamurthy. Further she has volunteered that Parvathy Devi gave the property and there is no any document executed by Parvathy Devi in their favour. So in view of the specific evidence of present 2nd plaintiff in that proceedings, once it is crystal clear that she has no where stated that they are not tenants under the Parvathy Devi. Though she has deposed that they have not paid rents to Potham Ramamurthy, but she has admitted that Parvathy Devi gave the property to them. When things stand thus, whether they are in possession of the property as a tenant or as a permissive possession is to be looked in to.
31OS.No.3025/2011 The Ex.D49 is the main document relied by defendant No.4 about her title over the property. The said document is an alleged settlement deed dtd.25.2.1948 alleged to be executed by Chikkananvara Kumara Kamanna and other family members jointly infavour of Muniyamma D/o Basappa relating to property No.7, situated at Bangalore City Rangaswamy Temple Street, Gandudi Kichaiana Galli, bounded by east - Gandudi Kichaiahna Galli, west- Bhavasarakshriya PM.Lakshman Rao house, north - 184- 185 houses and towards south- Ramakrishna Mutt. Ex.D50 is the property card standing in the name of Mallaiah and Rajanna who are sons of Muniyamma. Ex.D51 is the survey sketch standing in the name of Muniyamma relating to Corporation No.201/1-15. So in view of the said documents, it is evident that whatever the property claimed by 4th defendant through the said documents belongs to Muniyamma given by her ancestors for her residence and no title given to her to alienate etc. Further the 4th defendant is none other than the daughter of Rajanna and said Rajanna is son of said Muniyamma. but said property is no way connected to the suit property. In spite of that the 4 th defendant and defendant No.1 & 2 entered into compromise in OS.No.3786/2011 before mediation and claiming the present suit schedule property without any title.
32OS.No.3025/2011
28. When I gone through the Ex.D33 & 49, wherein suit schedule property is shown as Door No.14, Gandudi Kirchaiah Gulli, Rangaswamy Temple Street, Bangalore 53, comprised in Sy.No.Chickpet No.257, and 81A noted as 8/14, sub No.6409, measuring on the north 9.65 metre, on the south 10.2 metre, on the east 9.5 metre and west 10.2 metre in all measuring 96.3 sq. metre and bounded on North - Muniyakkaji's plot, South - Giriyappa's House, East - Gandudi Kichhayya Galli and West- Lakshmana Rao's House. Whereas in the present case also 3rd defendant has contended that plaintiffs are in possession of portion of the suit schedule property and in remaining portion he is in possession. Whereas in Ex.D49 the description of the property is mentioned as house Municipal door No.7 of Gandudi Kichayya Galli bounded on east by Gandudi Kichayya galli, west by Bavasara Kshythriya Lakshman Rao and others house, north by property No.184-185 belongs to their family and south by Ramakrishna mutt measuring east-west 33 feet and north-south 10 feet. So, on the face of the documents itself clearly goes to shows that the property claimed by the defendant No.4 and 3rd defendant are not tally with each other as admitted by DW2 also. Further the DW2 in his cross examination has admitted the said fact recorded on 23.3.2021 reads as follows:
It is true to suggest that the suit schedule 33 OS.No.3025/2011 property number, measurement, boundaries and Ex.D49 property number, measurement, boundaries are different. Witness volunteers that subsequently, partition has taken place. I have not mentioned the measurement of the property we have acquired in my written statement.
29. Though the defendants 1 & 2 claiming title over the suit schedule property on the basis of the alleged Will alleged to be executed by Parvathy Devi in favour of 1 st defendant as Ex.P38 and in turn J.Venkatesh executed the gift deed in favour of 2 nd defendant as per Ex.P39, but both are placed exparte and not adduced any evidence to prove their title on the basis of Ex.D38 & 39 over the suit schedule property and hence it cannot be said that neither the 1st defendant nor 2nd defendant having any manner of right, title over the suit schedule property. Admittedly, as per the documents produced by the plaintiffs and defendant No.3, already criminal case registered against defendant No.1 & 2 as discussed supra.
30. Now whether the plaintiffs are in possession of the suit schedule property as a tenants / permissive possession or perfected their title by way of adverse possession is to be looked into. Where as in the present case on hand as per the contention of the 3 rd defendant, plaintiff No.1's father V.Janardhan was a tenant under the mother of 3rd defendant by name Parvathy Devi and 34 OS.No.3025/2011 he used to pay rents till his death and subsequently J.Murthy the husband of 2nd plaintiff was in possession of the suit schedule property as tenant and used to pay rent to the 3rd defendant. To that effect, 3 rd defendant has produced the letters written by Janardhana and J.Murthy as per Ex.D5 to D19 and money order receipts as discussed supra. These documents are not disputed by the plaintiffs by producing any cogent documentary evidence and no rebuttal evidence to that effect. The said letter correspondence between the father of plaintiff No.1 and Smt. Parvathy Devi were taken place in an undisputed point of time. In view of the documents itself clear that there was a relationship between father of plaintiff No.1 and Smt. Parvathy Devi as landlord and tenant. After death of V.Janardhan his children plaintiff and his brother continued in the portion of the suit property. When things stand thus, whether plaintiffs can claim plea of adverse possession against the 3 rd defendant is to be looked in to.
31. Whereas in the examination in chief plaintiff No.1/PW1 has deposed that in fact Smt.Parvathy Devi and 3rd defendant allowed him to occupy the same without any objection as the value of the property was not much as on that day as they are neighbors and they belongs to same caste and then the husband of 2nd 35 OS.No.3025/2011 plaintiff had started service station garage of motor bike in the suit schedule property. The very pleadings and evidence of PW1 itself clearly goes to show that because of 3rd defendant mother allowed the plaintiffs, they are in occupation of the suit schedule property that amounts to a permissive possession as per the contention of the plaintiffs. But 3rd defendant contended that plaintiffs are tenants in the portion of the suit schedule property. Once the plaintiffs are continued in possession of the suit property as tenant or permissive possession they cannot claim plea of adverse possession. It is true the learned counsel for the plaintiff has cited a decision reported in AIR 2019 SC 3827 -Ravinder Kaur Grewal and others Vs. Manjit Kaur & Ors wherein their lordships observed as follows:
Limitation Act, Art 64, 65 & 27 - Adverse possession - Suit for declaration of title and for restoration of possession - Person perfecting title by virtue of adverse possession can maintain suit under Article.65.
Relating to the same the learned counsel for the plaintiff has cited a decision reported in (2009) 14 SCC 224
- T.K.Mohammed Abubucker (Dead) through Lrs., & Another Vs. P.S.M. Ahamed Abdul Khader & Ors wherein their lordships observed as follows:
Limitation Act, Art 64 & 65 - Adverse possession - Minimum period to trace back title - held, tracing of title to a point beyond a period of 36 OS.No.3025/2011 minimum 12 years before filing of suit necessary to establish title when plaintiff neither in possession nor having any revenue entries.
However, tracing shall be from such
transfer/grant,if grant or transfer is by
government or statutory development authority - plaintiff purchased suit property in 1982 from vendor who got title in 1981 - Neither vendor nor his ancestors acquired suit property under any deed of conveyance-Hence, held, it is necessary for plaintiff to establish vendor's title to suit property for a continuous period of 12 years- Since title traced barely for 3 years, the title deeds of 1982 and partition deed of 1981, held, did not establish title where suit for declaration of title filed in 1984- Specific Relief Act, 1963- Ss.34 &
6.
When I gone through the said decisions in detail the facts of the said decisions and present facts of the case on hand are entirely different. Because plaintiffs have failed to prove that they have perfected their title over the suit schedule property by way of adverse possession against Parvathy Devi or defendants. In the result, plaintiffs cannot take shelter under the above said decisions.
32. In this aspect it is relevant to rely the decision reported in 2004 SAR (Civil) 535(SC) Karnataka Board of Wakf Vs. Government of India and others. Where as in the above decision lordships have observed as follows:
(c) Adverse possession - Party claiming-
Requirement to be established by - In eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion- Non- use or property by its owner even for a long time wont affect his title - position will, however, be 37 OS.No.3025/2011 altered when another person takes possession of the property and asserts a right over it - adverse possession is a hostile possession by clearly asserting hostile title n denial of title of the owner - Person claiming adverse possession has to show (a) on what date he came into possession,
(b) what was nature of his possession, (c) whether factum of possession was known to other party,
(d) how long his possession has continued, and (e) his possession was open and undisturbed - such possession must start with a wrongful dispossession of rightful owner and be actual,visible, exclusive, hostile and continued over the statutory period. Person pleading adverse possession has no equities in his favour- sine he is trying to defeat rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
(d) Adverse possession -Projection of plea of adverse possession - Inherent in such plea is that someone else was the owner of the property- Adverse possession per-supposes possession of rightful owner- pleas on title and adverse possession are mutually inconsistent and mutually exclusive - Plea of adverse possession does not begin to operate until that of title is renounced.
(e) Title suit - Origin of title over the property plaintiffs should be very clear about - He must specifically plead it.
So in view of the relief of adverse possession, to claim adverse possession against the true owner, basically they have to prove first hostile, actual, open and notorious, exclusive and continuous possession of the plaintiff with worldly knowledge of the plaintiff over the suit schedule property that the plaintiff is in possession more than 12 years of the suit schedule property.
38OS.No.3025/2011 Further as per the observation of the Hon'ble Apex Court in the decision reported in SM. Karim Vs. Mst. Bibi Sakina reported in AIR 1964 SC 1254 referred by the 3rd defendant has held as follows:
It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario'. That is peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. And more so, it must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
33. Whereas in the present case on hand also on what date plaintiffs came into possession, secondly what was nature of their possession, thirdly whether factum of possession known to other party, fourthly how long their possession has continued and lastly their possession was open and undisturbed itself not specifically pleaded and proved by the plaintiffs. It is true as per the claim of the plaintiffs, 3rd defendant's mother was the absolute owner of the suit schedule property and till to day the property katha stands in the name of Smt.Parvathy Devi the mother of 3rd defendant. It is also not in dispute that 3 rd defendant is the son of Smt.Parvathy Devi. When the plaintiffs are claiming adverse possession against the true owner, it is bounden duty of the plaintiffs to show when their possession has become adverse to the owner of the 39 OS.No.3025/2011 suit schedule property as discussed supra. But in the plaint, plaintiffs have pleaded that since from 1986 they are in possession of the suit schedule property and it is also pleaded that for the last 30 years plaintiffs have been in possession and enjoyment of the property along with J.Murthy till his death and thereafter plaintiff No.1 and his younger brother's wife 2nd plaintiff are in possession and enjoyment of the suit schedule property. But whereas in the plaint para 6 plaintiffs have pleaded that since 28 years they are in possession of the suit schedule property. Admittedly 1st plaintiff is a retired Government employee who was working in RTO Department. Same is admitted in his evidence. In his cross examination he has deposed that from 2003-04 he has served at Belgaum and he served in different places at Bangalore and also he has deposed in his evidence that from 1990-2018 he has served in RTO Department and he was retired in the year 2018. Further he has admitted that since from 1997 he is residing in the address ie., the address shown in the PAN card RMV Extension II Stage, Sanjaynagar, Bengaluru and the house is located in the said address is standing in the name of his wife. PW1 has further deposed that said house purchased in the year 1992 and he is staying in the house from the year 1997. He has further admitted that gas connection as per Ex.P7 is still in existence in his 40 OS.No.3025/2011 name. At present cylinder is being supplied to his new address and the said gas connection address is changed from 1997 to the new address. That itself shows that from 1997 itself, he is not in possession of the suit schedule property. He has further categorically admitted that he has no any documentary evidence issued by BBMP about katha of the suit schedule property standing in his name and he has not paid tax either in the year 1986 or prior or later to it. But his name and his brothers name is appearing in power connection to the said suit building. He has further deposed that when he joined the service, Ex.P3 garage was being looked after by his brother J.Murthy. The trade license was transferred in the name of J.Murthy. He has also admitted that J.Murthy was looking after the business in the garage. As per Ex.P4 Parvathy Devi was called upon to appear before the Assistant Revenue Officer, Thulsithota, Bengaluru. He has admitted in Ex.P2 heir ship of Smt.Parvathy Devi is noted. He has also admitted Ex.P2. Further he has admitted in his cross examination recorded on 28.8.2018 reads as follows:
At present no one is residing at the suit schedule property.
Ex.D1 to 4 are photographs pertaining to the suit schedule property. He had obtained PAN card about 10- 15 years ago. So in view of the admission of PW1, once it 41 OS.No.3025/2011 is crystal clear that at present no one is residing in the suit schedule property but they are claiming 2 nd plaintiff running garage in the suit property. When PW1 joined service in the year 1990, in RTO office, question of he is continued in the possession of the suit schedule property continuously with the knowledge of the 3rd defendant without anybody interference by way of adverse possession does not arise. Unless and until plaintiffs prove the ingredients of the said adverse possession they cannot claim adverse possession.
34. Whereas plaintiff No.2 is the wife of J.Murthy. She has not entered the witness box and not given evidence. When 1stplaintiff is residing in some other place from the date of entering into his service to RTO office since 1990 till 2018, who is in continuous possession of the suit schedule property is to be proved by the plaintiffs, same is not proved by the plaintiffs by examining 2nd plaintiff. It is true 3rd defendant has contended that wife of J.Murthy was running garage in the suit schedule property after the demise of J.Murthy as a tenant, though the Plaintiffs are claiming adverse possession but same is not proved by the plaintiffs in view of the above discussion.
42OS.No.3025/2011
35. According to the defendant No.3, plaintiffs are in possession of the suit schedule property as a tenants. To that effect he has already produced number of documents, letter correspondences between the father of plaintiff No.1 & 1st defendant and father in law of 2 nd plaintiff by name V.Janardhara and Parvathy Devi and also produced money order receipts and are marked as Ex.D5 to 19 as discussed supra. Further to show that he is the absolute owner of the suit schedule property, he has produced Ex.D2 executed by Smt.Tholasiamma in favour of Potham Ramamurthy who is the brother of Smt. Parvathy Devi and also he has produced Ex.D21 death certificate of Potham Ramamurthy and legal heirship certificate Ex.D22 wherein the name of mother of 3 rd defendant, Parvathy Devi is shown as legal heir of Ramamurthy. Ex.D23 to 31 are standing in the name of Parvathy Devi relating to the suit schedule property ie., property No.8/14. Further in Ex.D26 it is specifically mentioned it is issued on 6.1.2012 that Parvathy Devi is the owner of the property old No.8 and new No.14 ie., suit schedule property. Ex.D32 is the GPA executed by AJ.Parvathy Devi in favour of 3 rd defendant relating to the suit schedule property to look the same and Ex.D33 is the certified copy of the registered Will executed by AJ.Parvathy Devi in favour of 3 rd defendant relating to the 43 OS.No.3025/2011 suit schedule property same is not disputed by plaintiffs. Even Ex.D34 is the death certificate of AJ.Parvathy Devi. When plaintiffs have admitted that suit schedule property belongs to AJ.Parvathy Devi and AJ.Parvathy Devi executed the GPA as well as the Will in favour of defendant No.3, and he is claiming that he is the landlord after the death of his mother and used to collect the rents from the plaintiffs, the same is not disproved by the plaintiffs.
36. Although defendants 1 & 2 and 4 have obtained a compromise decree in OS.No.3786/2011, but in view of the findings on Ex.D40 whatever the decree obtained by defendant No.1, 2 & 4 is not binding upon the present plaintiff and defendant No.3. Because they are not parties to the said suit. Even in the execution petition there was a specific findings that present plaintiffs and 3 rd defendant are in possession of the suit schedule property and the findings in OS.No.3786/2011 is not binding upon the plaintiffs and defendant No.3 in view of answering to the point No.2 in Ex.No.1671/2011. Moreover 3 rd defendant already initiated criminal proceedings against defendant No.1 & 2 by filing complaint, wherein police have registered FIR as per Ex.D37 and even plaintiffs have also filed certified copy of the charges sheet registered against the defendants 1 & 2 and others for the 44 OS.No.3025/2011 offence punishable u/s.468, 471, 420 r/w Sec.34 of IPC as per Ex.P14. In this aspect the learned counsel for the plaintiffs has specifically argued that after obtaining FSL report from the handwriting experts, police have submitted the charge sheet alleging that defendants 1 & 2 have forged the signature of the Parvathy Devi and created the Will alleged to be executed by AJ.Parvathy Devi as discussed supra. The said Criminal Case is also pending for adjudication. In view of the documentary evidence, once it is crystal clear that suit schedule property involved in the present suit and the property claimed by the 4th defendant are not one and the same and both altogether different. In addition to that DW2 has admitted that Ex.D43 to 46 are relating to property No.15. Further DW2 has deposed that as per Ex.D49 they have acquired property bearing Municipal Door No.7 situated at Gandudi Kichayya Galli road, measuring east- west 33 feet and north-south 40 feet. But the present suit schedule property is entirely different as per the documents produced by the plaintiffs and 3 rd defendant as discussed supra. When 3rd defendant has admitted that plaintiffs are in possession and enjoyment of the suit schedule property as a tenants even though 1 st plaintiff is not residing in the suit schedule property at present as discussed supra, but considering the facts and 45 OS.No.3025/2011 circumstances of the case and the considering the documentary evidence, it is proved that plaintiffs are in possession of the suit schedule property as on the date of suit. Further plaintiffs have failed to prove that they have perfected their title by way of adverse possession openly continuously, uninterruptedly and hostile to the knowledge of the defendants. Further they have not complied with the requisition of the principles nec vi nec clam nec precario . In the result, I answer issue No.3 in partly affirmative, additional Issue No.1 in the negative and Issue No.6 in the affirmative.
37. Issue no.5 and Addl. Issue No.2: According to the defendant No.4, she is the absolute owner of the suit schedule property but the property involved in the present suit is still standing in the name of Smt.Parvathy Devi and to show that suit schedule property is succeeded by 4th defendant by virtue of the decree passed in OS.No.11/1926, there is no documentary evidence. What ever the property claimed by the 4th defendant and the property involved in the present suit are altogether different as discussed supra. When 3 rd defendant has succeeded the property after the demise of his mother and even now also, the property standing in the name of Smt.Parvathy Devi, unless and until the Will executed by 46 OS.No.3025/2011 Parvathy Devi in favour of 3 rd defendant is declared as null and void or created document, it cannot be said that he is not the owner of the suit schedule property. Suppose if the 3rd defendant is not the son of Smt.Parvathy Devi then the question could have arisen after proving the Will only, he become the owner of the suit schedule property etc. Whereas in the present case on hand, the alleged Will claimed by the defendant No.1 is already disputed by the 3rd defendant and as per police report as contended by the 3rd defendant, it is by forging the signature of Smt. Parvathy Devi. Hence, at this stage, it can be said that 3rd defendant is the owner of the suit schedule property because even as per GPA executed by his mother also 3rd defendant having right to collect the rents from the tenants and to maintain the property. As per Rent Act the person who is and can collect the rent on behalf of the original owner also becomes landlord of the property. Wherein the present case also after demise of father of plaintiff No.1 & 1st defendant and father in law of 2nd plaintiff, the 3rd defendant used to collect the rents from the plaintiffs. Hence I am of the considered opinion that 3rd defendant is the owner of the suit schedule property and not the 4th defendant. Hence the decision cited by the learned counsel for the 4 th defendant reported in AIR 2003 SC 718-Abdul Rahman Vs. Prasony Bai & Ors 47 OS.No.3025/2011 Wherein their lordships have observed as follows:
"The appellant himself was the tenant of Mangal Singh, he could not have raised the plea of adverse possession. As a tenant he could not have questioned the title of Mangal Singh. "
When I gone through the said decision in detail, the facts of the said decision is not helpful to the case of the 4th defendant since she failed to prove that she is owner of the suit property. But the said decision is helpful to the case of the 3rd defendant. Because he has proved that he is the landlord of the suit property. Whereas in the present case on hand also, plaintiffs being tenants of the suit property they cannot question the title of the owner/landlord and same is not permissible under law. Further being a tenant cannot claim plea of adverse possession as observed by the Hon'ble Apex Court in the above said decision. In the result, it is helpful to the case of the 3rd defendant.
38. Whereas in the evidence of DW1 he has specifically admitted in his cross examination recorded on 8.3.2019 that his mother had received rents from the father of 1st plaintiff till 1990 thereafter he has not paid. Merely as per DW1, the father of plaintiff No.1 has not paid rents from 1990, it is not mean that the status of the plaintiffs will be changed a owner of the property by way of adverse possession. Because once they entered into the 48 OS.No.3025/2011 suit schedule property as a tenant or permissive possession of the suit property, their status will be continued the same till they vacate the suit schedule property but they cannot claim title by way of adverse possession. Further DW1 has deposed that after 2001 till 2008 the brother of Venkatesh by name J.Murthy was paying rents. The said Murthy is the husband of 2 nd plaintiff. After the death of J.Murthy plaintiff No.2 had told that she is unable to pay rents and she will reside in the suit schedule property and if some amount is settled she will vacate the property etc and till today he has not settled any amount to 2nd plaintiff and she has not vacated. Even 4th defendant has not subjected cross examination of DW1 to disprove the contention of 3 rd defendant or to prove that 4th defendant is the owner of the suit schedule property. Even though counsel for 4 th defendant cross examined DW1, but not taken any admission from the mouth of DW1 that suit schedule property belongs to 4th defendant. Further PW1 has deposed that since the suit schedule property got damaged 4 years ago at the time of construction process of adjacent two buildings, due to dumping of debris by them, no one is residing in the suit schedule property. Further PW1 has categorically admitted during the course of cross examination on 16.12.2019 that "It is correct to suggest that in connection to the suit schedule property I do 49 OS.No.3025/2011 not have any title deed in my name." Further PW1 has deposed that originally the suit schedule property belongs to Thulasiamma and he has denied the suggestion of 4 th defendant counsel and denied that suit schedule property belongs to joint family property of Sakkare Mandi Thammanna. When plaintiffs and 3rd defendant have denied the title of 4th defendant, but 4th defendant has failed to prove that she is the owner of the suit property. On the other hand 3rd defendant has proved that he is the owner of the suit property as discussed supra. In the result I answer Issue No.5 is in the affirmative and Addl.Issue No.2 in the negative.
39. Issue No.4: In view findings on above issues, plaintiffs have proved their possession over the suit schedule property as on the date of suit. The defence taken by the defendants itself shows that they are interfering with the possession of plaintiff and 3 rd defendant is trying to evict the plaintiffs without due process of law. When defendant No.1, 2 and the 4 th defendant have no manner of right title and interest over the suit property and unless and until the 3rd defendant take possession of the suit schedule property by due process of law they cannot be evicted from the suit schedule property. Hence considering the oral and 50 OS.No.3025/2011 documentary evidence I am of the considered opinion that plaintiffs have proved the interference by the defendants. Hence, I answer the above issue No.4 in the affirmative
40. Issue No.7 and Addl.issue No.3: In view of findings on the above issues, plaintiffs have failed to prove that they are the owners of the suit schedule property by way of adverse possession. But they have proved that they are in possession and enjoyment of the property as on the date of filing of the suit since 3 rd defendant himself has admitted that plaintiffs are in possession of suit property as tenant. Further plaintiffs have admitted that 3rd defendant's mother is the absolute owner of the property and now 3 rd defendant is the legal heir of deceased Smt.Parvathy Devi. When 3 rd defendant having the GPA as well as the registered Will executed by his mother and same is not challenged by any body and 3rd defendant inherited his mother property after death of Smt.Parvathy Devi, the 4th defendant has failed to prove that she is having any title over the suit schedule property. Under these circumstances the 3 rd defendant is entitled for possession of the suit schedule property from the plaintiffs, but he cannot evict them without due process of law. In the result possession of the plaintiffs is entitled to be protected till they are evicted with due process of law. Further defendant 1 and 2 have failed to 51 OS.No.3025/2011 prove that they are having any right and title over the suit property as discussed supra. When plaintiffs and defendant no.3 are not the parties to the suit OS 3786/2011 and finding on point No.2 in Ex.No.1671/2011 the judgment and decree passed in OS.No.3786/2011 is not binding upon the plaintiffs and defendant No.3. Hence considering the oral and documentary evidence, I am of the considered view that plaintiffs are entitled for the relief of permanent injunction but not the relief of declaration to declare them as absolute owners by way of adverse possession. Hence I answer Issue No.7 partly affirmative and Addl. Issue No.3 is in the affirmative.
41.Issue No.8: For the foregoing reasons and discussion and considering the facts and circumstances of the case and considering the findings on the above issues, the suit of the plaintiff is deserved to be decreed in part without costs. Under the above circumstances, accordingly I proceed to pass the following:
O RDE R Suit of the plaintiffs is party decreed. The relief of declaration claimed by the plaintiffs to declare them as absolute owners of the suit schedule property by way of adverse 52 OS.No.3025/2011 possession is hereby dismissed.
The defendants, their agents, henchmen, servants, officials etc., are hereby restrained permanently from interfering with the peaceful possession and enjoyment of the suit schedule property in any manner without due process of law to take possession.
Further the judgment and decree passed in OS.No.3786/2011 dtd.1.7.2011 by the Addl.City Civil Judge, Bangalore (CCH-26) is not binding on the plaintiffs.
No order as to costs.
Draw decree accordingly.
[Dictated to the Judgment Writer, computerised, and print out taken by him, corrected and then pronounced by me, this day the 21st February2022.
(NAGARAJAPPA. A.K.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU AN N E XU RE
1. No.of witnesses examined on behalf of plaintiff/s :
PW1 : Vasudev
2. No.of documents marked on behalf of plaintiff/s :
Ex.P1 : Property registration card extract Ex.P2 : Town Evaluation Sheet 53 OS.No.3025/2011 Ex.P3 : Garage Opening Invitation card Ex.P4 : Endorsement issued by Chikpet Revenue Officer Ex.P5 : True copy of death certificate Ex.P6 : Electrol Card Ex.P7 : LPG Gas Connection transfer advice Ex.P8 & 9: Endorsements issued by BBMP Ex.P10 : Ration card of plaintiff No.1 Ex.P11 : Election ID card of plaintiff No.1 Ex.P12 : CC of police complaint Ex.P13 : CC of FIR Ex.P14 : CC of charge sheet Ex.P15 : CC of plaint in OS.NO.3786/2011 Ex.P16 : CC of order sheet in OS.No.3786/2011 Ex.P17 : CC of memorandum of agreement filed in OS.No.3786/2011 Ex.P18 : CC of decree in OS.No.3786/2011 Ex.P19 : CC of petition in Ex.No.1671/2011 Ex.P20 : CC of Order passed in Ex.No.1671/2011.
3. No. of witnesses examined on behalf of defendant/s :
DW1 : A.J.Prathap DW2 : S.Pramod
4. No. of documents marked on behalf of defendant/s :
Ex.D1 to 4: Photographs Ex.D5 to 7: Letters in Tamil language Ex.D5(a) to 7(a): Translated versions of Ex.D5 to 7 Ex.D8 to10: 3 letters in english language Ex.D11 to 19: Money order receipts Ex.D20 : CC of Gift deed Ex.D21 : CC of death certificate Ex.D22 : CC of legal heir certificate Ex.D23 : CC of enquiry notice Ex.D24 : CC of Form No.9 54 OS.No.3025/2011 Ex.D25 : CC of survey sketch -3 sheets Ex.D26 : CC of katha extract Ex.D27 : CC of special notice dtd.30.8.1972 Ex.D28 to 31: CC of Tax paid receipts Ex.D32 : CC of GPA Ex.D33 : CC of the Will Ex.D34 : CC of death certificate of A.J.Parvathidevi Ex.D35 : CC of complaint dtd.7.5.2004 Ex.D36 : CC of complaint dtd.8.9.2008 Ex.D37 : CC of the FIR Ex.D38 : CC of the Will dtd.18.2.1984 Ex.D39 : CC of Gift Deed dtd.23.1.2004 Ex.D40 : CC of orders in Ex.No.1671/2011 Ex.D41 : Original rental agreement dtd.5.1.1955 Ex.D41(a) : Typed copy of Ex.D41 Ex.D42 to 46: Receipts for having paid rent to Smt.Muniyamma Ex.D47 : CC of entries in Field Book Ex.D48 : CC of deposition of Smt.Bhuvaneshwari in Ex.No.1671/2011 Ex.D49, 49(a): CC of Gift deed dtd.28.2.1948 and its typed copy Ex.D50 : CC of property card land record Ex.D51 : CC of City Surveyor sketch Ex.D52 : CC of survey report dtd.27.6.1972 XVIII Addl. City Civil Judge Bangalore City.
55 OS.No.3025/2011 Judgment pronounced in the open court vide separate judgment. The operative portion of judgment reads thus:
O R DE R Suit of the plaintiffs is party decreed. The relief of declaration claimed by the plaintiffs to declare them as absolute owners of the suit schedule property by way of adverse possession is hereby dismissed.
The defendants, their agents, henchmen, servants, officials etc., are hereby restrained permanently from interfering with the peaceful possession and enjoyment of the suit schedule property in any manner without due process of law to take possession.
Further the judgment and decree passed in OS.No.3786/2011 dtd.1.7.2011 by the Addl.City Civil Judge, Bangalore (CCH-26) is not binding on the plaintiffs.
No order as to costs.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore