Bangalore District Court
G. Ramamurthy vs Smt. Anuradha. H on 17 March, 2020
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE, MAYO HALL UNIT,
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 17th day of March, 2020.
O.S.No.25946/2012
Plaintiff: G. Ramamurthy,
S/o R. Govinda Swamy,
Aged about 58 years,
R/at No.13, K.K Lane,
7th Cross, Cotton Pet,
Bangalore560053.
[By M/s Jose Sabastian &
AssociatesAdvocate]
V/s
Defendant: Smt. Anuradha. H,
W/o Nagaraj J.N,
Aged about 37 years,
R/at No.74, Kilari Road,
Bangalore560053.
[By Sri. K.V. Shyamaprasada- Adv]
2 OS No.25946/2012
Date of Institution of the suit 21.05.2012
Nature of the (Suit or pronote,
suit for declaration and
possession, suit for injunction, Injunction Suit
etc.)
Date of the commencement of
recording of the Evidence. 04.10.2018
Date on which the Judgment
17.03.2020
was pronounced.
Year/s Month/s Day/s
Total duration 07 09 26
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
3 OS No.25946/2012
JUDGMENT
This suit is filed by the Plaintiff initially for the relief of Permanent Injunction, subsequently got amended and sought for the relief of Permanent Injunction inrespect of Plaint Schedule A Property and for the relief of Mandatory Injunction inrespect of Plaint Schedule B Property.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, the property bearing No.13, situate at 7 th Cross, K.K.Lane, Cottonpet, Bengaluru53, measuring East to West: 53 ½ Feet and North to South: 16 1/4th Feet, originally belongs to B. Chennappa. A Partition took place among the children of B. Chennappa after his death and in the said Partition, the said property was allotted B.C.Sridhar. Since B.C. Sridhar decided to 4 OS No.25946/2012 settle in USA, he got executed the General Power of Attorney infavour of his brotherinlaw K.R.Thimmaraju, who is the husband of his sister Savithramma, on 28.05.1973. On the basis of the said General Power of Attorney K.R.Thimmaraju executed an absolute Sale Deed infavour of the Plaintiff on 28.12.1977.
It is further contended that, initially the father of the Plaintiff had taken the said premises on rent from B. Chennappa, wherein he was running a hotel. Subsequently, prior to its purchase, Plaintiff was running a hotel in it under the name and style as "Naidu Hotel". Plaintiff has obtained hotel license from the Health Department and it is renewed from time to time. Plaintiff was paying necessary taxes of the said premises. On purchasing the said premises, since the building was quite old, Plaintiff decided to put up additional constructions in the existing building, leaving the out house portion and accordingly on obtaining the building construction license has constructed the building.5 OS No.25946/2012
On 25.06.2009, inorder to perform the marriage of his eldest daughter, the Plaintiff had pledged the title deeds of the said property. The Plaintiff could not able to discharge the liability and at that stage, the financier made an offer to purchase the said property, for which the Plaintiff has first agreed, but since he noticed the difference in actual measurements and the measurements available in the title deeds, the sale was not materialized and the Plaintiff by approaching his vendor got rectified the said measurements, by getting executed the Registered Rectification Deed. The Plaintiff is paying the taxes inrespect of the said premises and he is in actual Possession of the said premises, he has availed electricity power supply, water supply, telephone connection facility in his name, in the said premises and he is paying necessary electricity bills, water bills and telephone bills.
It is further contended that, Defendant is totally a stranger and she is not having any property attached to the property of the Plaintiff, especially on the eastern side, she alongwith her supporters while 6 OS No.25946/2012 dismantling the structure, claimed to have been purchased by her, made an attempt to encroach upon the portion of the Plaintiff's property on the eastern side and cause damages to the outhouse portion, especially the bathroom and the toilet, for which the Plaintiff has lodged a complaint against her with the SHO Kengeri on 13.04.2012. But the same was not materialized. Hence, the Plaintiff was constrained to file the present suit for the relief of Injunction.
3. Suit summons were issued to the Defendant. Defendant appeared through her Counsel on 24.05.2012 and filed her Written Statement and objections to IA No.1 on 26.05.2012.
4. The Defendant in her Written Statement has denied all the contentions taken up by the Plaintiff in the Suit Plaint. It is specifically contended by the Defendant that, the Plaintiff has wrongfully described the Suit Schedule Property as bounded to the east by 7th Cross, KK Lane and West by Private 7 OS No.25946/2012 property claimed to have been purchased by the Defendant. It is further denied that, the property shown as the Suit Schedule Property belongs to B Channappa. So also, the flow of title to the Plaintiff from said B Channappa, through B C Sridhar is also denied. It is specifically contended by the Defendant that, she is the owner of the property bearing Municipal No.15 (Old No.64), situate at 6 th Cross, K.K.Lane, Cottonpet, BBMP, Gandhinagar Ward, No.27, Corresponding PID NO.274815, measuring East to West: 25feet and North to South: 26 ½ feet, which is bounded by to the East: Kanthina Krishnappa Lane; to the West: private property (Defendant 's property and portion of private property); to the North: private property; and to the South: private property belonged to Umapathy. It is further contended that, she has purchased the said property from Mohammed Ayaz S/o Kalandarsab, under the Registered Sale Deed dtd.31.05.2010. She and her husband have contributed their hard earned money and savings to purchase the said property. Her name is mutated in the records of the 8 OS No.25946/2012 said property on the basis of the said Sale Deed and she is paying property tax to the BBMP.
Initially the Defendant was residing at No.74, Killari Road, Bengaluru53, since they suffered an eviction decree in O.S.No.7321/1999, dtd.20.02.2012, they had to vacate the said premises, so she had applied for building construction license to construct a building in the purchased property. On obtaining the same, she demolished the old dilapidated house and started constructing the building in the purchased property. Initially, the Plaintiff was very kind enough to provide water facility to her, at the time of demolition of old building, from his overhead tank. But subsequently, he turned hostile when the Defendant started construction in her property. He started creating problems, he prevented her from removing the western wall of the Defendant's property, as a result she was constrained to erect pillars to an extent of an area measuring East to West:23feet, though the extent of her property is 25feet. The Defendant erected pillars to an extent of an area 9 OS No.25946/2012 measuring East to West:about 18feet thereby leaving 6 ½ feet space with an intention to put up construction subsequently. The Defendant and her husband requested the Plaintiff personally, not to cause any disturbance, but the Plaintiff did not heed to the said request.
It is further contended that, after demolition of building by the Defendant, the Plaintiff got rectified the measurements available in his Sale Deed, by virtue of Rectification Deed, thereby showing more measurements, without being in Possession of the same. So also said K.R.Thimmaraju, claiming to be the General Power of Attorney Holder of B.C. Sridhar, either he or his principal, though not having any right over an area shown with excess measurements of the property, has executed the said Rectification Deed. On the basis of the said imaginary measurements, the Plaintiff got filed this present suit. Further it is contended that, if an order of Injunction is granted to the Plaintiff, as claimed by him, it will be the Defendant who will be put to 10 OS No.25946/2012 heavy and irreparable loss. Hence, prayed to dismiss the suit of the Plaintiff.
5. The Plaintiff got amended his Suit Plaint, with regard to the boundaries in the Suit Schedule Property, wherein he got rectified the same contending that, towards East of the Suit Schedule Property, there exist a conservancy lane and private property and to the West of the Suit Schedule Property, 7th Cross, Kantina Krishnappa Lane is situated. And the Plaintiff also got amended his suit for the relief of Mandatory Injunction contending that, the Defendant has encroached over an area measuring East to West: 7 ½ feet and North to South:
4 ½ feet. Thus, prayed to grant Mandatory Injunction alongwith Permanent Injunction.
6. The Defendant has filed her additional Written Statement on 17.07.2012 contending that, the contentions raised by the Plaintiff in Para No.8(a) of the amended Suit Plaint, dealing with the allegations of alleged encroachment and claim of Mandatory Injunction, are denied. It is specifically 11 OS No.25946/2012 contended that, the Defendant is constructing within the area of the property purchased by her and she has not encroached, as contended by the Plaintiff. Further it is contended that the Plaintiff has already constructed his building within the area, said to have been purchased by him and no any space is left towards the eastern side of his property, which will fall towards the western side of the property of the Defendant. Question of encroachment by the Defendant does arise at all.
It is specifically contended that, the Plaintiff is running a hotel in the ground floor of his property and he was having a kitchen facility in the adjacent property, which he had taken on rent. The said adjacent property owner got vacated the Plaintiff from it, and now the Plaintiff with an intention to shift kitchen of his hotel, in the hind portion of his property, more specifically in the property of this Defendant, which is adjacent to the property of the Plaintiff towards its eastern side, has found out the theory of alleged encroachment and to lay a claim over the property, belonging to the Defendant. Thus, 12 OS No.25946/2012 prayed to dismiss the additional claim made by the Plaintiff in the form of Mandatory Injunction.
7. On the basis of the above said pleadings, this Court has framed the following issues on 04.09.2018, as under:
ISSUES
1. Whether the Plaintiff proves that, he is the owner in possession of the Suit Schedule Property?
2. Whether the Plaintiff proves the Defendant alongwith her supporter while dismantling the structure claim to have been purchased by them have encroached upon the portion of the Plaintiff's property towards its Eastern side and caused damages to the outhouse portion especially the bathrooom and the toilet as alleged in para No.8 and 8(a) of the Suit Plaint?
3. Whether the Defendant proves that she has purchased the property measuring East to West 25 feet and North to South 26 ½ feet by virtue of Registered Saledeed dtd.30.05.2010 and has put up construction of building on her property measuring 25 x 26 ½ feet?13 OS No.25946/2012
4. Whether the relief claimed by the Plaintiff on amending the Suit Plaint is barred by law of limitation?
5. Whether the Plaintiff is entitled for reliefs of Permanent Injunction as well as Mandatory Injunction as claimed by him in the Suit Plaint?
6. What decree or order?
8. The Plaintiff inorder to prove his case, got examined himself as PW1 and got marked 55 documents as Ex.P.1 to Ex.P.55. PW1 is cross examined on behalf of the Defendant on 24.11.2018, 28.05.2019 & 02.08.2019.
Per contra, the Defendant got examined her General Power of Attorney Holder/husband as DW.1 and has got marked 28documents as Ex.D.1 to Ex.D.28. DW1 was cross examined on behalf of the Plaintiff on 09.12.2019. Ex.P.56 and 57 photographs were marked on confrontation to DW.1.
14 OS No.25946/20129. The suit was initially allotted to CCH21. The said matter was transferred to this Court on 04.09.2018 by virtue of a notification No ADMI(A) 413/2018 dated 31.07.2018 of the Principal City Civil and Sessions Judge, Bangalore.
10. Heard the Arguments of the Learned Counsels for the Plaintiff and the Defendant and when the matter was posted for the reply arguments of the Plaintiff, the Plaintiff filed application seeking amendment to the Suit Plaint, withregard to the description of the Suit Schedule Property. On hearing both the sides, the said application was allowed. The Plaintiff carried out the necessary amendment to the Suit Plaint and filed amended Suit Plaint, for which the Defendant has filed her Additional Written Statement on 29.02.2020 contending that, the Suit Schedule Properties described by the Plaintiff by way of amended Suit Plaint is not in consonance with the pleadings taken up by him, in the plaint. The Plaintiff is trying to claim her property without 15 OS No.25946/2012 any valid documents and by creating false documents. Plaintiff is not in Possession of the property shown as the Suit Schedule Properties, with the alleged measurements. So the Plaintiff is neither entitled for the relief of Permanent Injunction nor for the relief of Mandatory Injunction.
On the basis of the Additional pleadings of both the parties, this Court has framed Additional Issue No.1 on 29.02.2020 as under:
ADDITIONAL ISSUE
1. Whether the Plaintiff proves that the Defendants has encroached the Suit Schedule "B" Property, as contended in para No.8(a) of the Suit Plaint?
On framing additional issue, the Learned Counsel for the Plaintiff submitted that, Plaintiff has no further evidence on additional issue framed and endorsed accordingly on the Ordersheet. So Plaintiff side evidence was taken as 'Closed'.
Likewise, the Learned Counsel for the Defendant submitted that, the Defendant has no 16 OS No.25946/2012 further evidence, on additional issue framed and endorsed accordingly on the Ordersheet. So Defendant side evidence was also taken as 'Closed".
Heard the Arguments of the Learned Counsels for the Plaintiff and the Defendant, respectively.
11. My findings on the above said issues are as under:
Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : In the Affirmative;
Issue No.4 : In the Negative;
Issue No.5 : In the Negative;
Addl. Issue No.1 : In the Negative;
Issue No.6 : As per final order for
the following
:R E A S O N S:
12. ISSUE Nos.1, 2 AND ADDITIONAL ISSUE NO.1:
These three issues are taken for common discussion, as they are interlinked with each other. If they are taken separately for discussion, there will be repeatations in the discussions.17 OS No.25946/2012
The Plaintiff contends that he and his father were and are running a hotel business in the Suit Schedule Property as tenant under B. Channappa. Subsequently, the Plaintiff got purchased the said property from B.C.Sridhar through his General Power of Attorney Holder K.R.Thimmaraju, by virtue of a Registered Sale Deed dtd.28.12.1977 and since then, he is in Possession of the Suit Schedule Property, now shown as Suit Schedule A Property, as owner thereof.
It is further contended by the Plaintiff that originally the said property was belonging to B. Channappa. He died on 27.06.1963 and after his death, a Partition was effected inrespect of the properties left by him, including the present Suit Schedule A Property and in the said property, Suit Schedule A Property has fallen to the share of B.C. Sridhar S/o B. Channappa. Since B.C.Sridhar was settled in USA, he had executed registered General Power of Attorney infavour of his brotherinlaw K.R.Thimmaraju, on the basis of which, the said K.R.Thimmaraju has executed Sale Deed infavour of the Plaintiff, inrespect of the Suit Schedule A Property.18 OS No.25946/2012
As per the Plaintiff, Suit Schedule A Property consists of five storied construction as well as a outhouse room measuring East to West: 7 ½ feet and North to South: 16 1/4th feet, in all the entire property measures East to West: 53 ½ feet and North to South:
16 1/4th feet, and the same is bounded to the East by:
Conservancy Lane, to the West by: 7 th Cross, Kanthina Krishnappa Lane; to the North by: premises No.12 belonging to Bhaskar and to the South by: Premises No.14 belonging to Veeranna as well as the portion of property under the occupation of the Plaintiff, which is used as a kitchen room.
13. The Plaintiff has produced the certified copy of the Partition Deed dtd.23.03.1970 at Ex.P.1. On careful perusal of this document, it is seen that, B. Channappa, has died on 27.06.1963 and Partition inbetween his sons B.C.Seetharam; C. Alingappa; B.C.Sridhar; his son's wife Savithrichandra W/o B.C.Chandra, and his daughter Savithri W/o K.R.Thimmaraju, has taken place and in the said Partition, the property shown as Suit Schedule A 19 OS No.25946/2012 Property in this suit, is shown as Item No.3 of Schedule IV has fallen to the share of B.C.Sridhara, the said property is described as under:
Item No.3: Property situate at 7th Cross, K.K. Lane, bearing Door No.13, purchased by late B. Channappa, bounded on the East: by Mohan's property; West: by K.K.Lane, 7th Cross; North: by Muninagappa's property; and South: by Veeranna's property, measuring North to South : 16 ¼ th feet, East to West: 23 ½ feet.
14. The Plaintiff has produced the certified copy of the registered General Power of Attorney dtd.28.05.1973 at Ex.P.2. As per this document, B.C.Sridhar has authorized K.R.Thimmaraju to manage the properties fallen to his share, under the Partition Deed dtd.23.03.1970 and even to sell the said property by receiving sale consideration amount.
15. The Plaintiff has produced original Registered Sale Deed dtd. 28.12.1977 at Ex.P.3. As per this document, it is seen that the Plaintiff has purchased the property bearing No.13, situate at 7 th Cross, K.K. Lane, 20 OS No.25946/2012 within the boundaries to the East: property of Mohan; to the West: Kanthina Krishnappa Lane, 7th Cross; to the North: House of Munirangappa; and to the South:
Property No.10 fallen to the share of B.C.Seethram, within the measurements 16.01Meters X 4.09Meters, consisting of site, Old storied house with jungle wood door, in the said site with outhouse.
16. As per these documents, it can be said that, the Plaintiff has purchased the property within the measurements East to West: 53 ½ feet and North to South:16 1/4th feet, from B.C Shridhar through his Power of Attorney Holder K.R Thimmaraju, who inturn had received the said property under the Partition Deed dtd.23.03.1970 Ex.P1.
17. The Plaintiff contends that, the said property is bounded towards the East by a conservancy lane and thereafter the property belonging to Mohan. Further in Plaint Para No.8 of the Suit Plaint, he contends that, Defendant is a total stranger and she is not having any property attached to his property, especially on the Eastern side.
21 OS No.25946/2012Per contra, the Defendant contends that, towards Western side of her property, the property of the Plaintiff is located. It means that, towards the Eastern side of the property of the Plaintiff, property of the Defendant is located.
Coming to the ocular evidence, more specifically, cross examination of PW.1, at Page No.8, Para No.2, Line Nos.1 and 2, which read as under: "It is true to suggest, towards eastern side of my building, house belonging to the Defendant is situated. ..."
As per this evidence, the Plaintiff admits that, house belonging to the Defendant is situated towards the eastern side of his building.
So, it is clear on the basis of the oral evidence, more specifically on the admission of the Plaintiff that, the property of the Defendant is located towards the eastern side of the property of the Plaintiff or in other words, the property of the Plaintiff is located towards the western side of the property of the Defendant.
22 OS No.25946/201218. As per the Plaintiff towards northern side of his property, property of Muninagappa is located and towards southern side property of Veeranna is located.
Coming to the ocular evidence, on this point, more specifically, as per the cross examination of DW.1, at Page No.12, Para Nos.3 and 4, which reads as under: "I do not know whether Ashok Kumar, the legal heir of Veeranna is in possession of the property situated towards the southern side of the Suit Schedule Property."
"I do not know whether Baskar is in possession of the property which was in possession of Muninagappa, which is located towards the northern side of the Suit Schedule Property."
As per these evidence, DW.1 pleads ignorance that one Ashok Kumar, the legal heir of Veeranna is in Possession of the property situated towards the southern side of the Suit Schedule Property and one Bhaskar is in Possession of the property, which was in Possession of Muninagappa, which is located towards the northern side of the Suit Schedule Property.
23 OS No.25946/201219. The dispute inbetween the Plaintiff and the Defendant pertains to the eastern side of the property of the Plaintiff and to the western side of the property of the Defendant.
20. The Plaintiff contends that, since the actual measurements of his property is more, than the one mentioned in the Sale Deed dtd.28.12.1977Ex.P.3, so a registered rectification deed was got executed by him from his vendor as per Ex.P.5.
On the contrary, the Defendant would contend that, when she demolish the old building located in the property purchased by her, the Plaintiff has got rectified the measurements, by showing more measurements, inorder to claim the portion of the property belonging to her.
21. Coming to the ocular evidence, on this point, more specifically, as per the cross examination of PW.1, at Page No.13, Para No.3, which reads as under: "It is false to suggest that I am not the owner of the property with 24 OS No.25946/2012 the measurements mentioned in Ex.P.5".
As per these evidence, a suggestion was posed to the Plaintiff that he is not the owner of the property with the measurements as shown in Ex.P.5Rectification Deed, which is denied by the Plaintiff.
22. As per Sec.101 of Indian Evidence Act, it is for the Plaintiff to prove that, the property purchased by him measures, the measurement shown by him in the Rectification Deed dtd.12.10.2010, produced at Ex.P.5. On careful perusal of Ex.P.5Rectification Deed dtd.12.10.2010, it is seen that the said Rectification Deed pertains to rectification of measurements i.e., 16.01Meters to 16.30Meters and 4.09Meters to 4.95 Meters. But this deed also speaks about the measurements of the said property as 53 ½ feet and 16 ¼ feet. So even as per this document, the Plaintiff contends that, his property measures East to West:53 ½ feet and North to South: 16 ¼ feet.
25 OS No.25946/201223. As per the ocular evidence more specifically, as per the cross examination of PW.1, at Page No.7, Para No.1, Line Nos.1 to 4, which reads as under: "I am residing in the Address shown in the Suit Plaint since from 70 years. The measurement of the residential house in which I am residing has not changed since from from 70years. ......".
As per these evidence, Plaintiff contends that, he is residing in the Suit Schedule Property since from 70 years and the measurements of the residential house was not changed for 70years.
Further as per the cross examination of PW.1, at Page No.9, Para No.3, which reads as under: "It is true to suggest that after the property was dismantled by the defendant, we have got rectified our original sale deed dt. 28.12.1977 by virtue of rectification deed dt.
12.10.2010 Ex.P5. The said
rectification is with regard to
measurements of our property. It is true to suggest that in my original sale deed dt. 28.12.1977, the measurement of my property is shown as East to West 16.01 mtrs. And North to South 4.09 mtrs, totally measuring 65.48 sq.mtrs. It 26 OS No.25946/2012 is true to suggest that as per Ex.P5 rectification deed we have got rectified the measurements of our property as East to West 16.30 mtrs and North to South 4.95 mtrs, totally measuring 80.68 sq.mtrs. I have filed the present suit not only on the basis of Ex.P5 rectification deed but also registered sale deed dt. 28.12.1977 Ex.P3. It is true to suggest that I have made construction over the entire measurements, shown in Ex.P3 sale deed dt. 28.12.1977. It is true to suggest that the property which I have purchased by virtue of Ex.P3 sale deed dt. 28.12.1977, the entire property is in my possession. It is true to suggest that I am not in possession of the property with the measurements shown as per Ex.P5 - rectification deed. Witness volunteers that the defendant has encroached over the hind portion of the said property. The said encroachment measures East to West 7½ ft, North to South 4½ ft."
As per this evidence, Plaintiff admits that he has got done rectification withregard to measurements in the original Sale Deed, as per the Rectification Deed, after the Defendant dismantled her property. The said rectification is withregard to measurements of his 27 OS No.25946/2012 property. In the original Sale Deed dtd.28.12.1977 his property was shown to have measurements East to West: 16.01Meters and North to South: 4.09Meters, totally measuring 65.48Sq. Meters and as per Ex.P.5, the said measurements have got rectified as East to West: 16.30Meters and North to South: 4.95Meters, totally measuring 80.68Sq. Meters. The Plaintiff contends that, he has filed the present suit not only on the basis of the Rectification Deed, but also on the basis of Registered Sale Deed. The Plaintiff admits that he has made construction over the entire measurements shown in Ex.P.3 Sale Deed dtd.28.12.1977, of which he is in Possession. Further the Plaintiff admits that, he is not in Possession of the property with the measurements shown as per Ex.P.5Rectification Deed, he further contends that, the hind portion of his property measures East to West: 7 ½ feet and North to South: 4 ½ feet, is encroached by the Defendant.
Further as per the cross examination of DW.1, at Page No.13, Para Nos.4 and 5 (Q & A ), which reads as under: "Que: Is it, due to some rectification in the boundaries shown in the 28 OS No.25946/2012 registered Sale Deed dt. 28.12.1977, the said Thimmarayappa has executed a Rectification Deed dt. 12.10..2010, rectifying the boundaries and measurements pertaining to property No.13 ?
Ans: Rectification Deed is got created by the Plaintiff incollusion with Thimmarayappa after the purchase of our property No.15, 6th Cross, K.K.Lane, Cottonpet, Bengaluru53."
As per this evidence, the DW.1 contends that, Rectification Deed is got created by the Plaintiff in collusion with Thimmarayappa, after the purchase of their property.
As per the cross examination of PW.1, at Page No.11, Para No.2, which reads as under: "It is false to suggest that apart from Ex.P5 Rectification Deed dt. 12.10.2010, I do not have any to show that my property measures, East to West 16.30 mtrs. and North to South 4.95 mtrs, totally measuring 80.68 sq.mtrs. I have not got rectified the measurements pertaining to my property in the Records of the BBMP authorities on the basis of the Rectification Deed -Ex.P5. It is false to suggest that on physical verification of 29 OS No.25946/2012 my property, the said property does not measure East to West 16.30 mtrs, North to South 4.95 mtrs totally measuring 80.68 sq. mtrs."
As per these evidence, Plaintiff denies the suggestion made to him that, he is not having any documents apart from the Rectification Deed to show that his property measures East to West: 16.30Meters and North to South: 4.95Meters, totally measuring 80.68Sq. Meters. Further the Plaintiff admits that he has not got rectified the measurements pertaining to his property in the records of the BBMP authorities, on the basis of the said Rectification Deed. Further the Plaintiff denies that, on physical verification of his property, the said property is not having the measurements East to West: 16.30Meters and North to South: 4.95Meters, totally measuring 80.68Sq. Meters.
24. On careful perusal of the documentary evidence produced by the Plaintiff more specifically, the certified copy of the Partition Deed dtd. 23.03.1970 Ex.P.1, from which the vendor of the Plaintiff has received the said property, as per this document the 30 OS No.25946/2012 property purchased by the Plaintiff measures East to West: 53 ½ feet and North to South: 16 ¼ feet.
25. Though the suit filed by the Plaintiff is one for the relief of Permanent Injunction, since the Plaintiff is claiming the relief of Mandatory Injunction and claiming to be the owner of the Suit Schedule A Property, with outhouse, so Issue No.1 is framed, which includes the title portion of the Suit Schedule Property. Inorder to ascertain the Possession of the Plaintiff over the Suit Schedule Property, to the limited extent, probe is conducted withregard to title of the Plaintiff over the said property. Inorder to ascertain the Possession of the Plaintiff over the property shown in the Sale Deed of which measurements have been got rectified, as per the Rectification DeedEx.P.5, it is necessary to ascertain whether his vendor was possessing the property with such measurements. As per Ex.P.1, the vendor of the Plaintiff has received the property measuring East to West: 53 ½ feet and North to South: 16 ¼ feet. So the vendor of the Plaintiff cannot transfer the property more area than, what he has. As per Sec.8 of the Transfer of 31 OS No.25946/2012 Property Act, which deals with the maxim and the principle"Nemo dat quod, non habet", which says that "no person shall transfer than what he himself has". Inotherwords, a person cannot transfer a better title, if he does not possess the same.
26. Further the Plaintiff contends that, the property purchased by him consists of a outhouse and further contends that the Defendant at the time of dismantling her property, has caused damages to the said outhouse. The said contentions have been denied by the Defendant.
Coming to the ocular evidence on this point more specifically, as per the cross examination of PW.1, at Page No.12, Para No.4, which reads as under: "It is false to suggest that the defendant has never damage any portion of your property, more specifically the outhouse as contended in para No.8 of the suit plaint. It is false to suggest that the outhouse as contended by me in para No.8 of suit plaint is not in existence as I have constructed building in the entire property purchased by me."
32 OS No.25946/2012As per this evidence, Plaintiff denies the suggestion that the Defendant has never damaged any portion of his property more specifically, the outhouse as contended by him in Para No.8 of the Suit Plaint, so also it is denied by the Plaintiff that the outhouse is not in existence, as he has constructed building in the entire property purchased by him.
As per the cross examination of PW.1, at Page No.8, Para No.1, Line Nos.2 to 18, which reads as under: "It is true to suggest that at the time of our purchase of our residential house, there was already constructed building towards the eastern side of the our property. We have purchased old constructed building. There is no any open space available inbetween the building purchased by us and the building situated towards the eastern side of the said building. We have purchased the residential building with the existing measurement on 28.12.1977, wherein we were residing as a tenant. On the basis of measurement mentioned in the sale deed dt. 28.12.1977 we have got approved the building construction plain as per Ex.P4. The said Ex.P4 plan 33 OS No.25946/2012 pertains to the construction of ground level floor and the 1st level floor. On the basis of Ex.P4 we have got constructed 5 storied building, including the ground floor. It is true to suggest that apart from the ground level floor and 1 st level floor we have been constructed floors un authorizedly."
As per this evidence, Plaintiff admits that, at the time of his purchase of a residential house, there was already a constructed building towards the eastern side of his property. He has purchased old constructed building. Further admits that there is no any open space available inbetween the building purchased by him and the building situated towards the eastern side of his property. He has purchased the residential building with the existing measurements on 28.12.1977, wherein he was a tenant. On the basis of the measurements in the Sale Deed dtd.28.12.1977, he got approved the building construction plan as per Ex.P.4. Ex.P.4 plan pertains to construction of ground level floor and the first level floor. He has constructed five storied building, including the ground floor, on the basis of Ex.P.4Plan. Further the Plaintiff admits that, apart from 34 OS No.25946/2012 ground level floor and the first level floor, he has constructed other floors unauthorizedly.
The Plaintiff has produced building construction approved plan at Ex.P.4. As per this document, it is seen that, a building construction permission was obtained by the Plaintiff to construct a building consisting of ground floor and first floor. On careful perusal of this document, it is seen that the sital area shown in the plan is 65.48Sq. Meters, the ground floor area is shown as 36.64Sq. Meters and the first floor area is shown as 24.29Sq. Meters. On careful perusal of this document, it is further seen that, on the ground floor towards the eastern side, some area is shown as the open space i.e., after locating WC and bathroom. But the Plaintiff has admitted in his cross examination that he has constructed his building in the entire area purchased by him under the Sale Deed dtd. 28.12.1977 Ex.P.3. As per Ex.P.3, the purchased area shown is 65.48Sq. Meters, which is also shown in Ex.P.4, but as per Ex.P.5Rectification Deed, the purchased area is shown as 80.68Sq. Meters.
35 OS No.25946/2012Further as per the cross examination of PW.1, at Page No.16, Para No.1, Line Nos.1 to 5, which reads as under: "It is true to suggest that none of the documents produced by me, suggest that suit property consist of a outhouse. Witness volunteers that the documents which I have produced suggest that there is an open space."
As per this evidence, Plaintiff admits that none of the documents produced by him suggest that, Suit Property consists of a house, but contends that the documents produced by him suggest that, there is an open space.
Thus, the Plaintiff has failed to show that, there exist a outhouse in the property purchased by him or constructed the building excluding the outhouse, which is shown as part and parcel of Suit Schedule A Property. So, the Plaintiff has failed to prove the identity of the Suit Schedule A Property. When the Plaintiff has failed to establish the identity of the Suit Schedule A Property, then the Plaintiff is not entitle for the relief of Injunction. I find force to my above view, as per the decision of the Hon'ble High Court of Karnataka in the case of K. 36 OS No.25946/2012 Gopala Reddy, deceased, by Lrs., V/s Suryanarayana & Others, reported in 2014 (1) KCCR 662, wherein it is held that;
"When the Plaintiff has failed to prove his title and to establish the identity of the property, question of granting Injunction in his favour, does not arise at all."
27. The Plaintiff got amended the Suit Plaint and contended that, the Defendant has damaged the outhouse and has encroached upon his property, which is denied by the Defendant.
28. Coming to the ocular evidence on this point more specifically, as per the cross examination of PW.1, at Page No.12, Para No.1, which reads as under: "It is false to suggest that defendant has never encroached in my property to the extent of East to West 7½ ft and North to South 16.25 ft as contended by me in the suit plaint."
As per this evidence, Plaintiff denied the suggestion made to him that Defendant has not encroached in his property to the extent of East to West:
37 OS No.25946/20127 ½ feet and North to South: 16.25 feet, as contended in the Suit Plaint.
Further as per the cross examination of PW.1, at Page No.16, Para Nos.2 and 3 (Q & A), which reads as under: "Que: Defendant has constructed a building in her property bearing No.15, measuring East to West 25 ft and North to South 26ft 6 inches?
Ans: Defendant has encroached in my property to the extent measuring East to West 7½ ft and North to South 4½ ft."
As per this evidence, Plaintiff contends that Defendant has constructed a building in her property bearing No.15, measuring East to West: 25feet and North to South: 26 ½ feet, by encroaching in his property to the extent of an area measuring East to West: 7 ½ feet and North to South: 4 ½ feet.
As per the cross examination of PW.1, at Page No.9, Para No.2, which reads as under: "I have not verified the correctness of the measurement of the defendant's property. It is true to suggest that initially old building was purchased by the defendant and after dismantling the 38 OS No.25946/2012 said old building she has constructed a new building over it."
As per this evidence, Plaintiff contends that he has not verified the correctness of the measurements of the property of the Defendant, but Plaintiff admits that initially an old building was purchased by the Defendant and after dismantling the said old building, she has constructed a new building, over it.
Further, as per the cross examination of DW.1, at Page No.19, Para No.2, which reads as under: " It is true to suggest that we have constructed the building measuring East to West 23 feet and North to South 18 feet. It is false to suggest that we have encroached the property belonging to the Plaintiff, in the out house portion measuring East to West 7 ½ fee and North to South 4 ½ feet. It is false to suggest that such encroachment is done by us during the pendancy of this suit. It is false to suggest that since Exparte orders were not obtained and with force we have encroached the property of the Plaintiff."
As per this evidence, DW.1 admits that they have constructed the building measuring East to West: 23 feet 39 OS No.25946/2012 and North to South: 18feet, but denies that they have encroached the property belonging to the Plaintiff, in the outhouse portion measuring East to West: 7 ½ feet and North to South: 4 ½ feet and such encroachment is done, with force, during the pendency of this suit, as exparte orders were not obtained.
Further as per the cross examination of DW.1, at Page No.19, Para No.4, Line Nos.3 onwards, which reads as under: "It is false to suggest that towards western side of property belonging to one Veeranna is situated and not the property belonging to the Plaintiff. It is false to suggest that on erecting the pillars, I have demolished the property belonging to the Plaintiff and I am in illegal possession of the property belonging to the Plaintiff. It is false to suggest that I have demolished the existing bathroom and toilet and other rooms belonging to the Plaintiff."
As per this evidence, DW.1 denies that on erecting the pillars they have demolished the property belonging to the Plaintiff and are in illegal Possession of the property belonging to him. It is further denied by DW.1 40 OS No.25946/2012 that they have demolished the existing bathroom and toilet and other belongings of the Plaintiff.
As per the cross examination of DW.1, at Page No.18, Para Nos.5 and 6, which reads as under: "Now a positive Photograph produced by the Plaintiff is shown to the witness and questioned, whether the building shown in the said Photographs belong to the Plaintiff. Witness replies in the affirmative. On confrontation and admission the said document is marked as Ex.P56."
"Now a positive Photograph produced by the Plaintiff is shown to the witness and questioned, whether the walls with green colour belongs to your property?. Witness replies in the affirmative. On confrontation and admission the said document is marked as Ex.P57."
As per these evidence, DW.1 admits the positive photograph confronted to him, wherein the building of the Plaintiff is seen. The said photograph is marked as Ex.P.56. Likewise, DW.1 admits the positive photograph confronted to him, wherein the walls with green colours belonging to his property is seen. The said photographs is marked as Ex.P.57. On the basis of this evidence, the 41 OS No.25946/2012 position seen in Ex.P.56 and Ex.P.57 is the admitted position inbetween the Plaintiff and the Defendant, as the said photographs were confronted to DW.1 on behalf of the Plaintiff, which has been admitted by DW.1.
On careful perusal of the photographs produced by the Plaintiff at Ex.P.37 to Ex.P.46, when compared with Ex.P.56 and Ex.P.57, the admitted photographs, it can be seen that a pillar abutting the green colour wall, is raised by the Plaintiff while carrying out the construction of his house, which is situated towards the eastern side of his property. When the pillar is located by the Plaintiff at the end of his property, then question of leaving open space by the Plaintiff in his property towards its eastern side, does not arise at all. The pillars seen in Ex.P.37 to Ex.P.45, is located in the southeast corner of his property. The Plaintiff himself has admitted that, he has constructed a building in the complete area shown in the Sale Deed dtd. 28.12.1977 Ex.P.3, then where will be the question of existence of a outhouse and the open space, as contended by the Plaintiff.
Thus, the Plaintiff has failed to prove that:
42 OS No.25946/2012(a) Suit Schedule A Property measures East to West: 53 ½ feet and North to South: 16 ¼ feet, consisting of a outhouse room measuring East to West: 7 ½ feet and North to South: 16 ¼ feet;
(b) Suit Schedule A Property consists of a outhouse, or Plaintiff has constructed a building excluding the outhouse;
(c) Plaintiff is in Possession of the Suit Schedule A Property, including the outhouse;
(d ) The outhouse claimed by the Plaintiff measures East to West: 7 ½ feet and North to South: 16 ¼ feet;
(e) Defendant has made constructions in her property by encroaching upon his property, muchtheless towards southeast corner of his property, to the extent of an area measuring East to West: 7 ½ feet and North to South: 4 ½ feet.
When the Plaintiff has failed to prove that he is in actual Possession of the property shown by him, as the Suit Schedule A Property, Injunction cannot be granted infavour of the Plaintiff. I find force to my above view as per the decision of the Hon'ble High Court of Karnataka in the case of Narayan Mukund Shet 43 OS No.25946/2012 V/s Narayan Nagesh Shet, reported in ILR 1988 Kar 3035, wherein it is held that;
"Injunction cannot be granted infavour of the Plaintiff, who is not in Possession of the property".
Thus, I am constrained to answer ISSUE NO.1 IN THE NEGATIVE, ISSUE NO.2 IN THE NEGATIVE AND ADDITIONAL ISSUE NO.1 IN THE NEGATIVE.
29. ISSUE NO.3:
Since the suit filed by the Plaintiff is one for the relief of Mandatory Injunction and the Defendant contends that she has purchased the property measuring East to West: 25 feet and North to South: 26 ½ feet, and has taken up construction in the said area without making any encroachment in the property of the Plaintiff, so under Section 106 of Evidence Act, present issue is framed, of which burden is casted on the Defendant to prove the special facts, within her knowledge.44 OS No.25946/2012
Coming to the ocular evidence on this point more specifically, as per the cross examination of DW.1, at Page No.19, Para No.3, which reads as under: "It is false to suggest that we are having an area measuring East to West 23 feet and North to South 13 feet. We have exceeded the construction of our building beyond, our area by encroaching upon the property of the Plaintiff."
As per this evidence, DW.1 denies the suggestion made to him that, they are having an area measuring East to West: 23 feet and North to South: 13 feet, and they have exceeded the construction of their building beyond the said area by encroaching upon the property of the Plaintiff.
The Defendant has produced the certified copy of the Partition Deed dtd.08.04.1971 at Ex.D.3. On careful perusal of this document, it is seen that a Partition has taken place after the death of Sabjansab S/o Mohammed Rasool Saheb, on 24.12.1970, inbetween his wife Zainab Bi @ Safoora Bi; his son Mohammed Safi Hussain and his daughter Zainubunnissa W/o Basheer Ahmed. Further this document also evidences the fact 45 OS No.25946/2012 that a settlement in the family was taken place as per the Settlement Deed dtd.13.08.1956, wherein the property purchased by the present Defendant was given to Mohammed Rasool, grandson of Sabjansab, who is the minor son of Rahmath Bi D/o Sabjansab. Further this document also evidences that, the said Settlement Deed dtd.13.08.1956 came to be cancelled by the said Sabjansab by virtue of Cancellation Deed dtd.26.09.1967, as the physical Possession of the said property was not delivered to the minorMohammed Rasool. On cancellation of this Settlement Deed, the said Sabjansab died on 24.12.1970. As on the date of death of said Sabjansab, he was the owner of the said property, so the said property was subjected to Partition inbetween his heirs and in the said Partition, the said property has fallen to the share of Zainabunnisa W/o Basheer Ahmed, who is the daughter of Sabjansab.
Further the Defendant has produced the certified copy of the Exchange Deed dtd.08.04.1971, at Ex.D.4. As per this document, it is seen that, the said Zainabunnisa W/o Basheer Ahmed, who is the daughter of Sabjansab, has exchanged the property fallen to her 46 OS No.25946/2012 share in the Partition Deed with the property fallen to the share of her mother Zainab Bi @ Safoora Bi. In the consequences, the property claimed to have been purchased by the Defendant has come to the said Zainab Bi @ Safoora Bi in the said Exchange Deed.
Further the Learned Counsel for the Defendant would contend that, the said Zainab Bi @ Safoora Bi W/o Sabjansab, made an oral declarationHiba dtd.28.02.1980 infavour of Mohammed Rasool S/o Abdul Karim, being the son of her daughter Rahamath Bi. The said Mohammed Rasool has become the owner and has sold the said property to Mohammed Ayaz S/o Kalandarsab, by virtue of the Registered Sale Deed dtd.18.07.2006. The Plaintiff has produced the certified copy of the Registered Sale Deed dtd.18.07.2006 at Ex.D.5. As per this document, it is seen that Mr. Mohammed Rasool S/o Abdul Karim Sab has sold the property bearing No. 15, East to West: 25feet and North to South: 26.6feet, to Mr. Mohammed Ayaz S/o Kalandarsab, for the valuable consideration of Rs.9,63,300/. There is a recital in the said document that, the vendor Mohammed Rasool has received the 47 OS No.25946/2012 said property from his maternal grandmother Zainab Bi @ Safoora Bi, by virtue of Hiba dtd.28.02.1980. This document also evidences that the purchaser has been put into actual Possession of the purchased property on the day of its purchase.
The Defendant has produced Ex.D.26 Encumbrance Certificate, which evidences the transaction of Settlement Deed made by Sabjansab S/o Mohammed Rasool Saheb dtd.13.08.1956.
The Defendant has produced Ex.D.28 encumbrance Certificate which evidences the transaction of sale taken place inbetween Mohammed Rasool S/o Abdul Karim and Mohammed Ayaz S/o Kalandarsab on 18.07.2006.
Further the Defendant has produced the certified copy of the Registered Sale Deed dtd.31.05.2010 at Ex.D.6. As per this document, it is seen that, Mohammed Ayaz S/o Kalandarsab has sold the property purchased by him from Mohammed Rasool S/o Abdul Karim to the Defendant for the valuable consideration of Rs.10,00,000/. This document also evidences that the 48 OS No.25946/2012 purchaser has been put into actual Possession of the purchased property on the day of its purchase.
As per the above said documentary evidence, it can be seen that the property which has fallen to the share of Jainabunnissa under the Partition Deed dtd.08.04.1971Ex.D.3, measures East to West: 25feet and North to South: 26 ½ feet. The said property has come to the ownership of Zainab Bi @ Safoora Bi, under the Exchange DeedEx.D.4. Further the said property has been sold by Mohammed Rasool S/o Abdul Karim to Mohammed Ayaz S/o Kalandarsab, which he had received the said property from his maternal grandmother Zainab Bi @ Safoora Bi, under the Registered Sale Deed dtd.18.07.2006Ex.D.5. Inturn the said purchaser Mohammed Ayaz S/o Kalandarsab sold the said property to the Defendant under the Registered Sale Deed dtd.31.05.2010Ex.D.6. So, the property purchased by the Defendant measures East to West: 25 feet and North to South: 26 ½ feet, and not the property of the measurement, measuring East to West: 23feet and North to South: 13feet, as contended by the Plaintiff.
49 OS No.25946/2012The Defendant has also produced the building construction plan with approved blue print at Ex.D.9 and Ex.D.10. As per Ex.D.10, Defendant is permitted to carry out the construction of a building of her property within the measurements East to West: 25 feet and North to South: 26feet.
So the Plaintiff has proved that she has purchased the property having measurements East to West: 25feet and North to South: 26 ½ feet and has taken up the construction in her property, as per the sanctioned approved plan Ex.D.10.
Hence, I am constrained to answer ISSUE NO. 3 IN THE AFFIRMATIVE.
30. ISSUE NO.4:
The Defendant contends that, the relief of Mandatory Injunction, claimed by the Plaintiff is barred by Law of Limitation.
The Learned Counsel for the Defendant would contend that, initially the present suit is filed by the Plaintiff for the relief of Permanent Injunction on 21.05.2012. Thereafter the Plaintiff got his suit 50 OS No.25946/2012 amended by incorporating the contentions withregard to mandatory injunction and by claiming the relief of Mandatory Injunction on 26.07.2017.
Since the Plaintiff has contended in Para No.8(a) of the amended Suit Plaint that the Defendant taking the absence of the restraint order has installed pillars during the first week of June 2012 and the said amendment was carried out as per the Orders dtd.10.07.2012, so the relief of Mandatory Injunction claimed by the Plaintiff is well within the time and the same is not barred by Law of Limitation. Hence, I answer ISSUE NO.4 IN THE NEGATIVE.
31. ISSUE NO.5:
When the Plaintiff has failed to prove that he is in Possession of the Suit Schedule A Property including the outhouse, then he is not entitle for the relief of Injunction.
Secondly, when the Plaintiff has failed to prove that, the Defendant has encroached over SouthEast corner of his property, to the extent of East to West: 7 ½ 51 OS No.25946/2012 feet and North to South: 4 ½ feet, then the Plaintiff will not be entitle for the relief of Mandatory Injunction.
32. As per the decision of the Hon'ble Apex Court in the case of Anathulla Sudhakar V/s P. Buchi Reddy (dead) and others reported in AIR 2008 SCC 2033, wherein it is held that, "Suit for injunction simplicitor is maintainable, when there is interference in the peaceful enjoyment and possession of the Plaintiff and when clouds of title have not been raised in other words, title of the Plaintiff is not challenged, with cogent evidence".
Further held at para No.21(a) to (d) as under;
"(a) Where a cloud is raised over the Plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the Plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Whether there is merely an interference with the Plaintiff's lawful possession or threat of 52 OS No.25946/2012 dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property as in the case of Vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Whether the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will 53 OS No.25946/2012 relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration; merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. the court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the Plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case".
(Underline is mine, to lay emphasize) Applying the above principles of law to the instant case, it can be said that, though the present suit is one for the relief of Permanent Injunction, 54 OS No.25946/2012 question of title cannot be gone into, to decide the question of Possession, since in a suit for Permanent Injunction, question of adjudication of title, is foreign. But when the Plaintiff claims that he was having an open space towards the eastern side of his property alongwith the outhouse, which is dismantled by the Defendant by encroaching over it. Under such circumstances, the question of de jure possession over it has to be seen, then the de jure Possession over the Suit Schedule Property is to be established on the basis of title, to the said property. Under such circumstances, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
33. When the Plaintiff has failed to establish the identity of the Suit Schedule A Property and when he has failed to show that, he is in actual Possession of the said property, then question of interference does not arise at all.
55 OS No.25946/2012The Plaintiff has to prove the interference of the Defendant over the property shown as Suit Schedule A Property and the said interference must be such that either, it should be an attempt to trespass or to cause damages to the property, belonging to the Plaintiff, which should be coupled with the intention of the Defendant, to cause so. Thus, apprehension of injury or belief on the part of the Plaintiff, coupled with the Intention of the Defendant to do certain act, which harms the Plaintiff, amounts to interference by the Defendant, since the Plaintiff has failed to prove the said act apprehended by him, alleged to have intended by the Defendant, no foundation for the exercise of jurisdiction, is shown by the Plaintiff. Thus, the act alleged by the Plaintiff in Para No.8 of the Suit Plaint, will not amount to interference. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka reported in ILR 1978 Page 1560; in the case of Gopal M Hegde & Ors Vs U F M Narasimha Ganap Bhat & Ors, wherein it is held that, 56 OS No.25946/2012 "when the Plaintiff proves the intention on the part of the defendants, to do an act or existence of the act, which in the opinion of the Court, if completed, give ground of action, there is foundation for the exercise of jurisdiction".
34. Further as per the decision of the Hon'ble High Court of Karnataka, in the case of R.G.Janthakal V/s Bharat Parik and Co., reported in AIR 1981 Kar. 208, wherein it is held that;
"Injunction can be issued only on proof of actual interference or threat of interference and not in the absence of it".
Thus, the Plaintiff has failed to prove, proof of interference. Viewing from any angle, the Plaintiff is not entitle for the relief of Permanent Injunction. Hence, I answer ISSUE NO.5 in the NEGATIVE.
35. ISSUE NO.6:
57 OS No.25946/2012 In view of my findings on Issue Nos. 1,2,4, 5, 6and Addl. Issue No.1 in the Negative and Issue No.3 in the Affirmative, I proceed to pass the following:
ORDER Suit of the Plaintiff is hereby Dismissed.
No order as to costs.
Draw Decree Accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 17th day of March, 2020) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 58 OS No.25946/2012 SCHEDULE - A:
All the piece and parcel of the property bearing No.13, situated at 7th Cross, K.K. Lane, Cottonpet, Bangalore53, comprising of five storied constructions as well as outhouse room measuring East to West 7 ½' North to South 16 ¼' in all measuring East to West 53 ½' North to South 16 ¼' and bounded on the: East by: Conservancy Lane and private property.
West by: 7th Cross Kanthina Krishnappa Lane. North by: Premises No.12 belonging to Bhaskar. South by: Premises No.14 belonging to Veeranna as well as the portion of property under the occupation of the Plaintiff, which is used as a kitchen room.
SCHEDULE - B:
All the piece and parcel of the encroached portion of the Schedule 'A' property measuring North to South 4.5 feet and East to West 7.5 feet situated on the South 59 OS No.25946/2012 Eastern Portion of the Schedule A Property and bounded on the:
East by: Conservancy Lane and Mohan's Property.
West by: Remaining portion of the plaint A Schedule property.
North by: Remaining portion of the plaint A Schedule property.
South by: Portion of the property claimed to have been purchased by Defendant.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Ramamurthy.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1: Certified copy of registered Partition deed dtd.23.03.1970.
Ex.P.2: Certified copy of General Power of Attorney dtd.28.05.1973.
Ex.P3: Registered Saledeed dtd.28.12.1977. Ex.P4: Approved construction plan. Ex.P5: Registered Rectification deed dtd.12.10.2012. Ex.P6: Khatha extract.
Ex.P7: Khatha certificate.
Ex.P8 to 17: 10 receipts respectively. Ex.P18 to 20: 3 Challan.60 OS No.25946/2012
Ex.P21: Property extract for the year 201819. Ex.P22: Certified copy of license for Hotel Restaurant Provisional stores.
Ex.P23: Certificate issued by Health department of BBMP.
Ex.P24 & 25: Two trade license renewal certificates issued by BBMP.
Ex.P26: Receipt.
Ex.P27: 19 electricity requisitions and receipts. Ex.P28: 8 requisitions issued by Bengaluru Water Supply and sewerage board.
Ex.P29: Encumbrance certificate. Ex.P.39 to Ex.P.47: Positive photographs and C.D. Ex.P.48 to Ex.P.54: Five positive photographs with C.D. Ex.P.55 & P.55(A): Original tress sketch with blue print map.
Ex.P.56: On confrontation and admission of photograph.
Ex.P.57: On confrontation and admission of photograph.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT: DW.1: Sri. J.N. Nagaraj.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D1: Special Power of Attorney dtd.23.08.2019. Ex.D2: Certified copy of Registered Cancellation Deed of Settlement dtd.26.09.1967. Ex.D3: Certified copy of Registered Partition deed dtd.08.04.1971.61 OS No.25946/2012
Ex.D4: Certified copy of Registered Exchange Deed. Ex.D5: Certified copy of Registered Saledeed dtd.18.07.2006.
Ex.D6: Certified copy of Registered Saledeed dtd.30.05.2010.
Ex.D7 & 8: Khata certificate and Khata extract. Ex.D9 & 10: Building construction permission with approved blue print map.
Ex.D11: Certificate issued by the Somavamsha Sahasrarjuna Kshatriya Cooperative Society Ltd., dtd.17.09.2019.
Ex.D12: Certified copy of the registered memorandum of deposit of title deeds dtd.05.06.2012. Ex.D13 to 17: Five tax paid receipts. Ex.D18: Uttar patra.
Ex.D19 & 20: Khata certificate and Khata extract. Ex.D21 & 22: Two tax paid receipt. Ex.D23: Uttar patra dtd.24.09.2004. Ex.D24: Khatha certificate dtd.15.07.2006. Ex.D25: Khata extract.
Ex.D26 to 28: Three Encumbrance certificates.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 62 OS No.25946/2012