Bangalore District Court
Sri.Shivanna vs Savitha.T on 24 January, 2017
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 24th day of January, 2017.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.407/2015
PLAINTIFF : Sri.Shivanna,
s/o late Subbanna,
aged about 57 years,
r/at No.31, 13th 'C' Cross,
Magadi Road, Dasarahalli,
Bangalore-560 079.
(By Sri.M.R.Muniraju,Advocate)
-VS-
DEFENDANT : Savitha.T.
w/o Lingappa,
aged about 38 years
r/at Sanjeevini Nagara,
Hegganahalli,
New Carmel School Road,
Bangalore-560 091.
(By Sri.S.Munibyre Gowda, Advocate)
Date of Institution of the suit : 9/1/2015
Nature of the Suit : Declaration, Injunction &
Possession
2 O.S.No.407/2015
Date of commencement of recording
of evidence : 17/8/2016
Date on which the Judgment was
pronounced : 24/1/2017
Year/s Month/s Day/s
Total Duration : 02 00 15
JUDGMENT
The plaintiff has filed this suit for the reliefs of declaration that plaintiff is the absolute owner of suit schedule property; for mandatory injunction directing defendant to demolish the structure that she had constructed in the suit schedule property; for possession directing defendant to hand over vacant possession of suit schedule property; for damages directing defendant to pay damages at Rs.1,000/- p.m. from the date of suit till defendant actually hand over vacant possession of suit schedule property; for court costs and such other reliefs.
2. The case of plaintiff in nutshell is that the plaintiff, Huchappa and one Thimmaiah are brothers and they are sons of one Subbanna. Said Huchappa is dead and 3 O.S.No.407/2015 whereabouts of Thimmaiah is not known since 8 years. Subbanna was owner in possession and enjoyment of several immovable properties which are his self-acquired properties acquired through Regd. Sale deed dtd:4/5/1954. During his life time, Subbanna had executed the Will and bequeathed all his properties in favour of his sons including present plaintiff. Under the said Will, Subbanna bequeathed Sy.No.60 measuring 5 acres 36 guntas and Sy.No.63/6 measuring 2 acres 7 guntas situated at Hegganahlli, Yeshwanthapura Hobli, Bangalore North Taluk in favour of plaintiff. On the basis of said Will, mutation was effected in the name of plaintiff in respect of above 2 Survey Numbers and RTCs are also made in the name of plaintiff. Under said Will, Subbanna bequeathed 8 acres 10 guntas in Sy.No.62 of Hegganahalli Village to Thimmaiah - plaintiff's brother, and Sy.No.60 measuring 8 acres 7 guntas to Huchappa - plaintiff's brother. Accordingly, mutation was effected in the name of brothers of plaintiff and RTCs were also standing in their names. Plaintiff formed layout consisting of number of 4 O.S.No.407/2015 residential sites in Sy.No.60. However, it was not converted for non-agricultural purpose and therefore, Corporation Authorities had not effected khatha in respect of revenue sites. Site No.63 is one such sites formed by plaintiff in such layout which measures East to West - 40 feet and North to South - 43 feet. This suit is filed in respect of portion of said site No.63 measuring East to West - 40 feet and North to South - 30 feet and this portion is denoted by letters 'ABCD' in the layout plan. Thus, plaintiff is the absolute owner of suit schedule property. Defendant is stranger to suit schedule property. She has no manner of right, title and interest over the suit schedule property. Even then, about 5-6 years ago, she trespassed into the same and wrongfully occupied the same. The fact that plaintiff is staying away from the suit schedule property is also made convenient for defendant to wrongfully occupy it. Defendant had put up temporary shed in the suit schedule property. Plaintiff being a law abiding person, did not want to use any force to remove and oust the defendant from the suit property. He also 5 O.S.No.407/2015 did not give any police complaint, because, it is only futile exercise as the dispute is civil in nature. On the other hand, plaintiff met defendant personally and informed her that the property over which she is squatting is his absolute property and her occupation is illegal and that she should vacate and deliver vacant possession of suit schedule property to him. Initially defendant was reluctant to pay heed to the request of plaintiff. However, on being shown all the relevant papers and documents, she eventually agreed to hand over possession of suit schedule property to plaintiff. Further she requested some time. Though defendant promised to vacate it, subsequently, she has not handed over possession of suit schedule property to plaintiff over a period of time. Plaintiff realized that defendant is protracting to hand over the vacant possession of suit schedule property. It is to be noted here that defendant inspite of handing over vacant possession, has removed the temporary shed and started putting up Pakka RCC structure on suit schedule property. Thus, plaintiff realized that defendant will not vacate 6 O.S.No.407/2015 without the assistance of this court. Hence, the suit for appropriate reliefs.
3. After service of suit summons, defendant appeared through her counsel and filed her written statement wherein she denied the plaint averments in toto and contended that she does not know about some of those averments. She further pleaded that defendant has purchased the suit schedule property through GPA on 29/1/1992 and at that time, there was no registration of revenue sties and hence purchased through GPA and affidavit. Subsequently, GPA was registered on 2/4/1996 and from the date of purchase, she constructed building and she is residing in the schedule property with her family. She further contended that she does not know whether plaintiff has formed layout and whether he has obtained sanction from Tahsildar, Bangalore North Taluk. Defendant further contended that only to file the suit, plaintiff has created the story to make wrongful gain and to knock of the suit schedule property which is covered by 7 O.S.No.407/2015 a developed area which comes under BBMP. Defendant is paying taxes to BBMP. The layout plan produced by plaintiff is created to knock of the suit schedule property. She further contended that she has purchased the suit schedule property from Thimmaiah on 29/1/1992 and since then, she is in physical possession of suit schedule property by constructing house and residing in it without interference from anybody. She is the bonafide purchaser of suit schedule property and she has got every right, title and interest over it. She never promised plaintiff that she would handover its possession to him and plaintiff never demanded her. She further contended that during the life time of Thimmaiah, he has filed O.S.No.2394/2007 before CCH-13 and it was dismissed on 5/10/2012 for non- prosecution and Thimmaiah had issued legal notice to plaintiff for having purchased land from plaintiff and hence, prayed for dismissal of the suit with costs.
4. From the above facts, the following issues were framed:-
8 O.S.No.407/2015
ISSUES
1. Whether plaintiff proves that he is the absolute owner of the suit schedule property by virtue of Will executed by his father - Subbanna; plaintiff formed layout in Sy.No.60 and suit schedule property is part and parcel of said Survey Number?
2. Whether plaintiff proves that defendant unauthorisedly put up temporary structure in suit schedule property?
3. Whether plaintiff is entitled for relief of declaration as prayed in the plaint?
4. Whether plaintiff is entitled for relief of mandatory injunction as prayed in the plaint?
5. Whether plaintiff is entitled for relief of possession as prayed in the plaint?
6. What order or decree?
5. On behalf of plaintiff, plaintiff's GPA holder is examined as P.W.1, got marked Ex.P.1 to Ex.P.11 and closed his side. On behalf of defendant, defendant is examined as D.W.1, got marked Ex.D.1 to Ex.D.24 and closed her side.
6. Heard arguments of both sides.
9 O.S.No.407/2015
7. Findings of this court on the above issues are:-
Issue No.1:- Partly in Affirmative;
Issue No.2:- In Negative;
Issue No.3:- In Negative;
Issue No.4:- In Negative;
Issue No.5:- In Negative;
Issue No.6:- As per the final order for the following:-
REASONS ISSUE Nos.1 to 3
8. These issues are taken together as they require common discussion.
9. The plaintiff has pleaded in the plaint that his father- Subbanna had purchased several immovable properties through his self-earnings under Regd. Sale deed dtd:4/5/1954. He has bequeathed Sy.No.60 measuring 5 acres 36 guntas and Sy.No.63/6 measuring 2 acres 7 guntas situated at Hegganahlli, Yeshwanthapura Hobli, Bangalore North Taluk in favour of plaintiff. 10 O.S.No.407/2015
10. Plaintiff formed layout consisting of number of residential sites in Sy.No.60. However, it was not converted for non-agricultural purpose and hence, khatha was not effected in respect of revenue sites. Site No.63 is one such sites formed by plaintiff in such layout, which is depicted in the layout plan produced by him and it measures East to West - 40 feet and North to South - 43 feet. The suit schedule property is a portion of said site No.63 measuring East to West - 40 feet and North to South - 30 feet and this portion is denoted by letters 'ABCD' in the layout plan i.e., the suit schedule property.
11. To substantiate that Site No.63 is formed out of Sy.No.60 and this Sy.No.60 belongs to plaintiff and he is the absolute owner of this Sy.No.60, plaintiff has not stepped into the witness box to give evidence. But, his GPA holder has given evidence in this suit. To give evidence, GPA Holder should have personal knowledge about the case.
12. In this regard, this court relied on the following citations:-
11 O.S.No.407/2015
1) Hon'ble Supreme Court of India in Civil Appeal No.147-148/2001 between "Man Kaur(dead) by Lrs & Hartar Singh Sangha", wherein, their lordships held as follows:-
"We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if 12 O.S.No.407/2015 those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequency happens in case of principals carrying on business through authorised managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, 13 O.S.No.407/2015 and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category.
There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to 14 O.S.No.407/2015 accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
In the above said citation, their Lordships held that under what circumstances, the attorney holder can give evidence on behalf of parties to the suit.
2) Judgment of Hon'ble High Court of Karnataka in W.P.No.20298/2014(GM-CPC) between "Nagarathna Murthy & Sri.S.Narayanappa(dead by LRs)", wherein their Lordships held as follows:-
"Thus, in the present case, the learned Judge shall allow GPA to 'act' on behalf of the plaintiff within the parameters as reflected in the aforementioned judgment of the Supreme Court and this court. In other words, it is open to GPA to act on behalf of the plaintiff. He may also examine 15 O.S.No.407/2015 himself as witness like any other witness, if he is so competent in law to testify the existence or non-existence of any fact in issue in the suit or proceedings or such other facts as are declared to be relevant under the provisions of the Indian Evidence Act, if such facts are within his personal knowledge. In any case, he can not appear as a witness in place of principal or as a principal. As observed by the Supreme Court, the learned Judge while allowing the GPA to step into witness box like any other witness shall see to it that his deposition confines only to the acts done by him, in exercise of the power granted to him by virtue of the instrument. He may depose for the plaintiff in respect of such acts but he cannot depose for the principal for the acts done by the principal, and not by him. He cannot depose for the principal in respect of the matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. Keeping all the principles in view, the learned Judge shall allow the GPA to produce power of attorney 16 O.S.No.407/2015 and 'act' on behalf of the plaintiff. Insofar as admissibility of any portion of his deposition, if he steps into the witness box, shall be considered on merits in accordance with law and in the light of the aforesaid judgments and other judgments that will be cited by the parties."
13. In the above said citation, their Lordships held that what would be the evidentiary value attached to the evidence of GPA Holder i.e., the court has to assess the evidence of General Power of Attorney holder after verifying his knowledge about the facts of the case.
14. Relying on the principles noted in the above said citations, this court holds that evidence of GPA Holder could be looked in to. If P.W.1-the GPA Holder has personal knowledge about this suit, otherwise, her evidence could be considered to the extent to which she had personal knowledge.
15. With this background, evidence adduced by P.W.1 is to be looked into. P.W.1 has produced the GPA 17 O.S.No.407/2015 executed by plaintiff in her favour as per Ex.P.1. It is narrated in Ex.P.1 that plaintiff - Shivanna has filed this suit- O.S.No.407/2015 and he appointed Smt.Savithramma D/O Thimmaiah as his lawful attorney. Due to his ill- health, he is unable to appear before this court and to contest the matter on merits and hence, he authorized his brother's daughter as his lawful attorney. It is also stated in this GPA that said Smt.Savithramma is residing with him. According to plaint cause title and Ex.P.1, plaintiff is residing at No.31, 13th 'C' Cross, Magadi Road, Dasarahalli, Bangalore. The same address is mentioned in the affidavit evidence of P.W.1.
16. In the affidavit, P.W.1 has stated that she knows the facts and circumstances of the case. In Para No.25 of her cross-examination, P.W.1 has stated that about 5-6 years back when defendant put up temporary shed in the suit schedule property, they came to know about the sale deed in favour of defendant.
18 O.S.No.407/2015
17. It is the case of plaintiff at Para No.12 in the plaint that defendant is a stranger to the suit schedule property and she has no manner of right, title or interest over the same and about 5-6 years ago, she trespassed in to the same and wrongfully occupied the same and it is further pleaded in the same para the fact that plaintiff is staying away from the suit schedule property came in handi and convenient for the defendant to wrongfully occupy over the suit schedule property and squat over the same.
18. P.W.1 in her cross-examination at para 25 stated that about 5-6 years back when defendant put up temporary shed in the suit schedule property, they came to know about the sale deed in favour of defendant. In the plaint, plaintiff stated that defendant is a stranger whereas P.W.1 deposed that she came to know about the sale deed in favour of defendant. Hence, the above evidence of P.W.1 is little bit contrary to the plaint pleadings. It appears that plaintiff is not having personal knowledge about the suit schedule property on this point. 19 O.S.No.407/2015
19. It is to be noted here that P.W.1 is not the daughter of plaintiff, but she is only daughter of plaintiff's elder brother-Thimmaiah. No document is produced to show that plaintiff is not keeping good health and he cannot attend the court, but simply GPA is executed in favour of P.W.1.
20. In the cross-examination of P.W1, learned counsel for defendant elicited that earlier, the present plaintiff- Shivanna had issued notice to the father of this P.W.1 revoking the GPA executed by Shivanna in favour of Thimmaiah and then, Thimmaiah had filed suit for injunction in O.S.No.2394/2007 against present plaintiff and during pendency of said suit, Thimmaiah had became missed and his whereabouts were not known and hence, his wife and children have filed I.A. under Order I R.10 CPC to implead them as plaintiffs in said suit and said I.A. was allowed and then, present P.W.1 and her mother and sisters were brought on record as plaintiffs in said suit and ultimately, said suit was dismissed for non-prosecution. P.W.1 admitted all these facts in her cross-examination at 20 O.S.No.407/2015 para No.28 & 29 and she also admitted about Ex.D.1 to Ex.D.3.
21. Though P.W.1 has admitted that her father had given reply dtd:18/12/2006 to the notice given by present plaintiff, she failed to identify said reply notice. Hence, it was not marked, but she admitted about notice dtd:6/12/2006 issued by present plaintiff to her father as per Ex.D.1. On perusal of the certified copy of the plaint and order sheet in O.S.No.2394/2007 as per Ex.D.2 and Ex.D.3 marked through P.W.1, this court noticed that the present plaintiff had issued notice to father of P.W.1 on 6/12/2006 pertaining to Sy.No.60 measureing 5 acre 36 guntas and Sy.No.63/6 measuring 2 acres 7 guntas situated at Hegganahalli village, Yeshwanthpur Hobli. It is stated in the said notice that this plaintiff has formed sites in the said property and sold some of the sites in favour of prospective purchasers and retained some sites for his own purpose and further stated as under:-
"you addressee being the elder brother of my client, now my client learnt 21 O.S.No.407/2015 that you are proclaiming in the village that my client had executed alleged General Power of Attorney in favour of you addressee, but my client had not executed any general power of attorney in favour of you addressee in respect of Sy.No.60 and 63/6 measuring 3 acres of Hegganahalli village. My client instructs me to state that you addressee might have created and concocted the alleged general power of attorney dated 1/8/1994 by forging the signature of my client and his wife Rukmani in respect of above said properties to knock away the valuable property of my client." And in this notice it is further stated as follows:-
"Therefore, I hereby call upon you not to act, on the alleged General Power of Attorney dtd:1/8/1994 in respect of Sy.No.60 and 63/6 measuring 3 acres of Hegganahalli village, as my client is hereby revoke the said General Power of Attorney and in spite of receipt of this notice, if you addressee proceed to act on the said General Power of Attorney you will be doing so at your own costs and risk."22 O.S.No.407/2015
22. Thus, in the said notice, though present plaintiff denied the execution of GPA in favour of Thimmaiah in respect of Sy.No.60 and 63/6, at last, he has stated that he has revoked said GPA from the date of issuance of said notice and even after receipt of said notice, if Thimmaiah proceed to act under said GPA, then, he could do so at his own costs and risk. Thus, by revoking the General Power of Attorney, plaintiff, indirectly is admitting the execution of GPA of Thimmaiah.
23. Ex.D.2 is certified copy of plaint in O.S.No.2394/2007 filed by Thimmaiah in respect of Sy.No.60 and 63/6 totally measuring 3 acres situated Hegganahalli village, for the relief of permanent injunction restraining Shivanna and his wife from interfering with his peaceful possession or creating any charge or encumbrance over the suit schedule property and for such other reliefs. In the said suit, it was pleaded by Thimmaiah that he agreed to purchase schedule property and after negotiations, sale consideration was agreed and fixed at Rs.15 Lakhs and he 23 O.S.No.407/2015 paid the entire agreed sale consideration amount by cash to Shivanna and his wife and they acknowledged the receipt of amount and executed the notarized affidavit and GPA dtd:1/8/1994 and they have delivered physical possession of the schedule property to the plaintiff - Thimmaiah. Thus, it is the specific pleading of Thimmaiah in that suit that he had purchased Sy.No.60 and 63/6 measuring 3 acres from present plaintiff.
24. It is to be noted here that after filing of the said suit, in the year 2008, Thimmaiah had became missed and his whereabouts are not known to his family members and thus, they had filed I.A.No.III under Order I R.10 CPC to implead them as plaintiffs in said suit O.S.No.2394/207 and to implead them as defendants in O.S.No.2809/2007 filed by present plaintiff against Thimmaiah for the relief of permanent injunction. The order was passed on said I.A. on 13/1/2012. The said order reveals that the present P.W.1 along with her mother and sisters filed I.A. to come on record as plaintiffs against the same present plaintiff in 24 O.S.No.407/2015 respect of same Sy.No.60 and 63/6 and said I.A. was allowed and she was permitted to come on record as party and accordingly, amendment was also carried out to the plaint. This shows that at one stretch, this P.W.1 admits that her father - Thimmaiah had purchased 3 acres in Sy.No.60 and 63/6 from present plaintiff - Shivanna under GPA and affidavit and formed the layout and sold some sites and came on record to prosecute the suit filed by her father against the same present plaintiff - Shivanna and again, in this suit, she represented the same Shivanna as his GPA holder in respect of a portion of suit schedule property of that suit. This shows evidence of P.W.1. is not trustworthy. Hence, with this background, the evidence of P.W.1 is to be analyzed with great care and caution.
25. P.W.1 has stated in her affidavit evidence that Sy.No.60 measuring 5 acres 36 guntas and other survey numbers were purchased by her grand-father-Subbanna under Regd. Sale deed dtd:4/5/1954 and he had bequeathed the properties through Will to his 3 sons and 25 O.S.No.407/2015 under said Will, plaintiff - her uncle got Sy.No.60 measuring 5 acres 36 guntas and Sy.No.63/6 measuring 2 acres 7 guntas.
26. The present suit is pertaining to only a portion of this Sy.No.60, i.e., site No.63. The total extent of Site No.63 is 40 feet x 43 feet whereas, the suit schedule property is only a portion of it measuring East to West - 40 feet and North to South -30 feet. P.W.1 stated in her affidavit evidence that this schedule property is marked with letters 'ABCD' in the layout plan produced along with the suit. This lay out plan is not marked through the evidence of P.W.1, because, it is only Xerox copy, but marked as Ex.P.10 through cross-examination of D.W.1.
27. To substantiate the above contention of P.W.1, she has produced the certified copy of sale deed dtd:4/5/1954 as per Ex.P.2 stating that its original was misplaced long back. She has produced the mutation register extract pertaining to M.R.No.4/90-91 as per Ex.P.3. It shows that as per M.R.No.4/90-91, as per Will dtd:23/3/1992 26 O.S.No.407/2015 executed by Thimmaiah @ Subbanna, 5 acres 36 guntas in Sy.No.60 and 2 acres 7 guntas in Sy.No.63/6 were mutated into the name of Shivanna - plaintiff. Plaintiff has also produced RTC extract of Sy.No.60 for 2013-14 and in respect of Sy.No.62 for 2013-2014 as per Ex.P.4 and Ex.P.5.
28. Under these documents, 5 acres 30 guntas in Sy.No.60 and 8 acres 7 guntas in Sy.No.60 were mutated into the name of Shivanna and Huchappa respectively; 2 acres 7 guntas in Sy.No.63/6 and Sy.No.62 measuring 7 acres 30 guntas were mutated in to the name of Thimmanna. According to Ex.P.4, even in the year 2013- 14, the entire extent of 5 acres 30 guntas stands in the name of plaintiff. However, plaint averments coupled with the affidavit evidence of P.W.1 reveals that the entire Sy.No.60 is not still an agricultural property and it is already used for non-agricultural purpose. Even according to plaint averments and affidavit evidence of P.W.1, plaintiff has formed the layout consisting of number of 27 O.S.No.407/2015 residential sites. In the cross-examination at para No.23, P.W.1 admitted that several houses are already constructed and third parties are residing in those houses in this Sy.No.60. Under these circumstances, much value cannot be attached to RTCs produced by P.W.1.
29. In the instant case, though plaintiff pleaded about the Will, the Will in question is not produced by plaintiff. Hence, only if plaintiff is able to produce the Will in question, it can be said that plaintiff's father had bequeathed Sy.No.60 to plaintiff and plaintiff is the owner of this entire Sy.No.60. However, in the cross- examination, D.W.1 admitted almost all pleadings of plaintiff regarding his ownership.
30. In the cross-examination, D.W.1 admitted that plaintiff is the younger brother of Thimmaiah; Thimmaiah, Huchappa and Shivanna are brothers and their father is Subbanna; Plaintiff's father had executed unregistered Will deed and bequeathed all his properties to his 3 sons and 28 O.S.No.407/2015 in the said Will, Sy.No.60 was given to plaintiff by his father; suit schedule property comes within Sy.No.60.
31. As defendant categorically admitted the execution of Will in favour of plaintiff and Sy.No.60 was fallen to the share of plaintiff and suit schedule property comes within the purview of Sy.No.60, even in the absence of non- production of Will by plaintiff, as this suit is only against defendant and not against the whole world, this court opines that plaintiff has proved that he is the absolute owner of Sy.No.60 by virtue of the Will executed by his father - Subbanna and suit schedule property comes within the purview of Sy.No.60. However, defendant has not admitted that plaintiff is the absolute owner of suit schedule property and contended that it is purchased by her through General Power of Attorney.
32. At the time of arguments, learned counsel for defendant submitted that 3 acres in Sy.No.60 was purchased by Thimmaiah from plaintiff and he formed layout in said Survey Number and he had sold the suit 29 O.S.No.407/2015 schedule property through GPA and affidavit in favour of defendant, as there was ban for registration of revenue lands.
33. In the written statement, defendant had taken contention that she has purchased suit schedule property through GPA on 29/1/1992 and at that time, there was ban for registration of revenue land and hence, GPA and affidavit were executed. In that para, defendant has stated that who executed this GPA. However, in the subsequent para No.11, she further stated that defendant purchased suit schedule property on 29/1/1992 from Thimmaiah and from said date onwards, she is in actual physical possession and enjoyment of suit schedule property and residing in it. Thus, the coupled reading of para Nos.9 & 11 of written statement reveals that defendant had taken only the plea that she was put in possession of suit schedule property by Thimmaiah who had executed affidavit and GPA in her favour. 30 O.S.No.407/2015
34. Defendant has produced the original GPA dtd:29/1/1992. However, as it was not registered, it was not marked. Defendant has produced the Regd. GPA dtd:2/4/1996 executed by same Thimmaiah in her favour as per Ex.D.4. In this document, Thimmaiah s/o Subbanna has stated that the suit schedule property was his ancestral property and he was the absolute owner of said property and he has handed over its possession to defendant. He has absolutely no objections to use this property in the way defendant intends to use and he has not alienated this property through sale, mortgage, gift or any other mode. All the averments which are required to be narrated in sale deed are narrated in this GPA, but, it was registered only as GPA.
35. Defendant categorically deposed that since from the date of execution of this GPA, she is in possession of suit schedule property and constructed house in it and residing in it.
36. In the cross-examination, defendant has deposed that Thimmaiah might have formed the layout in the year 31 O.S.No.407/2015 1990-91, but she does not know whether the khatha of the suit schedule property was mutated in to the name of Thimmaiah at the time of purchasing it.
37. Defendant admitted that in entire Sy.No.60, layout is formed and she also identified that Site No.63 is formed out of it. In view of her above evidence, though this document was a xerox copy and not admissible in law, it is marked as Ex.P.10.
38. On perusal of Ex.P.10, this court noticed that this document does not bear the seal or signature of anybody. Admittedly, it is not an approved layout plan. It does not reveal that who prepared this layout plan and who is the owner of this property can not be ascertained from this layout plan. It is only mentioned in this layout plan that layout is pertaining to Sy.No.60. Hence, even though defendant admitted this document, it will not prove that plaintiff is the owner of suit schedule property based on this layout plan.
32 O.S.No.407/2015
39. In the plaint, plaintiff contended that about 5-6 years prior to filing of the suit, plaintiff came to know the encroachment of suit schedule property by defendant; Defendant is stranger to suit schedule property; She trespassed into to it and wrongfully occupied it; Plaintiff is staying away from suit schedule property came in handi and convenience for defendant to wrongfully occupy the suit schedule property and squat over the same.
40. Thus, according to plaintiff, only 5-6 prior to filing of the suit i.e., might be during 2009-10, defendant trespassed in to the suit schedule property. Even in the affidavit evidence, P.W.1 reiterated the said fact. P.W.1 or plaintiff does not correctly stated that on which date or month or year, defendant occupied the suit schedule property. But, they came to know about it only 5-6 years prior to filing of the suit. Even in the cross-examination, at para No.25, P.W.1 affirms that about 5-6 years back when defendant put up a temporary shed in the suit schedule property, they came to know about the sale deed 33 O.S.No.407/2015 in favour of defendant. But, immediately, they have not taken any legal action against defendant.
41. In para No.20 of the plaint, it is pleaded that during September 2008, defendant wrongfully occupied the suit schedule property and at that time, cause of action for the suit arose. P.W.1 deposed that said cause of action mentioned in plaint is correct. This suit is filed on 9/1/2015. Thus, according to said cause of action, about 6 years and 4 months after commencement of cause of action, present suit is filed. It was suggested to P.W.1 that her father had executed GPA during 1992 and got it registered on 2/4/1996 in favour of defendant and sold the suit schedule property in favour of defendant and it was denied by her.
42. D.W.1 categorically stated in her affidavit evidence that after execution of GPA in her favour, she constructed building and residing in it. In the cross-examination, D.W.1 denied the suggestion that since from the date of formation of layout, site No.63 was in possession of 34 O.S.No.407/2015 plaintiff. She volunteered that plaintiff never formed layout in Sy.No.60. She denied the suggestion that plaintiff never sold Sy.No.60 to Thimmaiah and Thimmaiah had not formed layout in said survey number and not received Rs.15 Lakhs from Thimmaiah. She denied the suggestion that knowing fully well that plaintiff is the owner of suit schedule property, taking advantage of the fact that he was not in Hegganahalli village, she constructed sheet roofed house in the suit schedule property during 2008. She volunteered that she constructed RCC roofing house in the suit schedule property during 1992-93 immediately after she obtained GPA from Thimmaiah. As suit schedule property comes within revenue site, she had not obtained the approved plan from concerned authorities. She denied the suggestion that even at the time of filing of the suit, there was only sheet roofing house in the suit schedule property. However, she admitted that they altered their house in the year 2015. At that time, she changed the 35 O.S.No.407/2015 plastering because it was deteriorated and constructed one room in the upstairs.
43. According to Ex.P.11 photograph marked in the cross-examination of D.W.1, there is an old house with green Distemper on the ground floor and up stair is being constructed in the said house. Admittedly, D.W.1 made alteration to the suit schedule property during 2015. Hence, it might be correct that she had put up up-stair to suit schedule property during 2015. She has denied the suggestion that Ex.P.6 & Ex.P.7-photographs depict the suit schedule property. Even otherwise, if Ex.P.6 & Ex.P.7 depicts the suit schedule property, that does not mean that it was a temporary structure. Because, only the sheet roofing was removed and one more floor was put up to the house even as per Ex.P.11. There was no alternation on the ground floor of the building, that means, that the building was permanent structure and not temporary structure as alleged by plaintiff in the plaint and deposed by P.W.1 in her evidence.
36 O.S.No.407/2015
44. The above facts made it very clear that the suit schedule property consists of a permanent structure. According to plaintiff, it was put up only in the year 2008, but according to defendant, she was put in possession of suit schedule property during 1992-93 itself and subsequently registered GPA as per Ex.D.4 was executed in her favour in respect of suit schedule property.
45. It is the contention of plaintiff that the person who had executed said GPA has no right whatsoever over the suit schedule property. As per the admission of D.W.1 also, the person who had executed the GPA - Thimmaiah in favour of defendant might not have right over the schedule property. However, rightly or wrongly, defendant was put in possession of suit schedule property and she had constructed a house in it.
46. When defendant has proved that she was put in possession of suit schedule property during 1992 or 1996, plaintiff ought to have filed the suit within 12 years from the date of such dispossession to get back the possession 37 O.S.No.407/2015 of suit schedule property as per Article 65 of the Limitation Act. According to this provision, the period of limitation is 12 years, when possession of defendant become adverse to the plaintiff and plaintiff could file the suit for possession of immovable property based on title.
47. In the instant case, the GPA produced by defendant as per Ex.D.4 is a registered document. Hence, under this document, defendant was put in possession of suit schedule property by Thimmaiah who was not a rightful owner. Even then, as this document is a registered document, it is a notice to the whole world including the plaintiff. Hence, from the date when defendant was put in possession of suit schedule property, her possession started becoming adverse to the real owner i.e., to the plaintiff. Hence, plaintiff ought to have filed this suit within 12 years from execution of Regd. GPA - Ex.D.4 i.e., on or before 2/4/2008. However, this suit is filed in 2015 i.e., 7 years after execution of Ex.D.4. Hence, though there is no issue framed on the point of limitation, this 38 O.S.No.407/2015 court holds that this point being a legal point and has to be decided at the time of passing judgment. Hence, this court holds that the suit of the plaintiff is clearly barred by limitation and the structure put up by the defendant over the suit schedule property was not a temporary structure, but it was a permanent structure.
48. As defendant has not filed the suit, though defendant may not able to establish her absolute title over the suit schedule property, plaintiff is not entitled for the relief of declaration as prayed in the plaint as suit is clearly barred by limitation. Accordingly, issue No.1 is answered partly in affirmative; issue No.2 & 3 are answered in negative.
ISSUE No.4
49. In view of findings on issue Nos.1 to 3, this court holds that plaintiff is not entitled for the relief of mandatory injunction as suit is clearly barred by limitation. Accordingly, issue No.4 is answered in negative. 39 O.S.No.407/2015
ISSUE No.5
50. In view of findings on issue Nos.1 to 4, this court holds that plaintiff is not entitled for the relief of possession as prayed in the plaint. Accordingly, issue No.5 is answered in negative.
ISSUE No.6
51. In view of findings on issue Nos.1 and 5, this court proceeds to pass the following:-
ORDER Suit is dismissed with costs.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 24th day of January, 2016).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Smt.T.Savithramma
b) Defendant's side :
D.W.1 - Smt.T.Savtiha 40 O.S.No.407/2015 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 GPA
Ex.P.2 Certified copy of sale deed
dtd:4/5/1954
Ex.P.3 Certified copy of Mutation Register
Extract pertaining to MR
No.4/1990-91
Ex.P.4 & Ex.P.5 2 RTC Extracts pertaining to Sy.No.60 & 62 Ex.P.6 to 2 photographs with CD Ex.P.9 Ex.P.10 Xerox copy of layout plan of Sy.No.60 Ex.P.11 Photograph of the house constructed in the suit schedule property (Ex.P.10 & Ex.P.11 are marked in the cross-examination of D.W.1)
(b) Defendant's side : -
Ex.D.1 Notice dtd:6/12/2006
Ex.D.2 Certified copy of the plaint in
O.S.No.2394/2007
Ex.D.3 Order on I.A.No.III dtd:13/1/2012
passed in O.S.No.2394/2007
Ex.D.4 Regd. GPA dtd:2/4/1996
Ex.D.5 Certified copy of the sale deed
dtd:4/5/1954
Ex.D.6 B Khatha extract issued by BBMP
Ex.D.7 Encumbrance certificate in Form
No.16
Ex.D.8 to 3 acknowledgments
Ex.D.10
41 O.S.No.407/2015
Ex.D.11 to 3 tax-paid receipts
Ex.D.13
Ex.D.14 to 10 photographs with CD
Ex.D.24
(K.B.GEETHA)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
GVU/-
42 O.S.No.407/2015
Judgment pronounced in open court vide separate detailed judgment with the following operative portion:-
ORDER Suit is dismissed with costs.
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.