Bangalore District Court
) Smt. Musunnuru Kaladhar vs ) Smt. Muniyamma W/O Late Yerrappa on 19 August, 2020
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S.No.15834/2006
Dated this the 19th day of August 2020
Plaintiff:- 1) Smt. Musunnuru Kaladhar
W/o Shri. Srinivasa Reddy,
Aged about 25 years, No:397,
West Trimble Road, Building 2,
San Jose, Ca 95131,USA
And herein represented by
her duly constituted attorney
Mr. M. Srinivasa Reddy.
(Rep by Sri Sreevatsa Associates, Advocates)
V/S
Defendant/s:- 1) Smt. Muniyamma W/o Late Yerrappa,
Aged about 80 years,
2) Sri. D.Y. Srinivas S/o Late Yerrappa,
Aged about 50 years,
3) Sri. D.Y. Ganeshappa S/o Late Yerrappa,
Aged about 47 years,
4) Sri. D.Y. Krishnappa S/o Late Yerrappa,
Aged about 44 years,
5) Sri. D.Y. Nagaraj S/o Late Yerrappa,
Aged about 36 years,
2
Judgment O.S.No.15834/2006
6) Sri. D.Y. Narayanaswamy S/o Late Yerrappa,
Aged about 43 years,
All residing at : Vigneshwara Nilaya,
Vivekananda Road, Gokula Layout,
Devasandra, K.R.Puram, Bangalore-560 036
7) Sri Subhan Sab S/o Sri Ali Sab,
Aged about 33 years
8) Sri K.N. Nagaraju S/o. Late Sri B.K.
Narayanappa,
Aged about 28 years,
9) Sri Balaraju S/o Sri. A.Joseph,
Aged about 25 years,
All are residing at Kalkere village,
Horamavu Post, Bangalore 560 043.
Defendant No.1 to 6 by Sri AMSR, Advocate
Defendant No.7 & 9 by Exp. Def-8 Sri. NV, Advocate
Date of Institution of the suit 29/05/2006
Nature of the (Suit or pro-note, suit for declaration and
possession, suit for injunction, etc.)
Permanent injunction
Date of the commencement of recording of the Evidence 29/05/2012
Date on which the Judgment was pronounced. 19/08/2020
Year/s Month/s Day/s
Total duration 14 02 20
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit : Bangalore
.
3
Judgment O.S.No.15834/2006
:JUDGMENT:
The plaintiffs filed suit against the defendants for permanent injunction.
2) The Brief facts of plaint averments is as under:
The plaintiffs submits that she has purchased the suit schedule property mentioned below under registered deed of sale dated 23/02/2004 registered as document No.24864/2003-04 in the office of Sub-Registrar, K.R. Puram, Bangalore.
:SUIT SCHEDULE PROPERTY:
All that piece and parcel of the property bearing Sites No.83 & 84, property No.50/5, Khata No.50/5/1 in the layout formed in Sy.No.50/5 at Hoodi, Krishnarajapuram Hobli, Bangalore East Taluk, (formerly Bangalore South Taluk). This property comes under jurisdiction of Mahadevapura C.M.C and measures East to West: 80 feet and North 4 Judgment O.S.No.15834/2006 to South: 64 feet in total 5120 square feet bounded by East:Site No.85, West:Site No.82, North: Road, South: Private Property. The plaintiff further submits that the suit schedule property is part of a larger layout consisting of many other sites formed out of Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore South Taluk. The plaintiff submits that defendants No.1 to 9 claiming to be owners of 3 acres 30 guntas of land in Sy.No.50/5 of Hoodi Village, K.R. Puram Hobli, Bangalore East Taluk (formerly Bangalore South Taluk) had entered into an agreement of sale with defendants No.7 to 9 and one Madesha, on 22/01/2003 whereby they had agreed to sell the entire 3 acres 30 guntas to defendants No.7 to 9 and another for total sale consideration of Rs.1,27,50,000/. On 25/11/2003 defendants No.1 to 5 executed General Power of attorney in favour of Nisarga Developers and Builders represented by its partners, defendants No.7 to 9 to deal with the entire property bearing 5 Judgment O.S.No.15834/2006 3 acres 30 guntas in Sy.No.50/5 of Hoodi village, K.R. Puram Hobli, Bangalore East Taluk, (formerly Bangalore South Taluk). In 3 acres 30 guntas of land comprised in Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore Roads were laid and sites were formed by the defendants.
On 12/12/2003 defendants No.1 to 5 represented by defendants No.7 to 9 executed an absolute deed of sale in favour of the plaintiff in respect of the suit schedule property which comprises two sites in the entire extent of 3 acres and 30 guntas of Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore in the private lay out formed. The defendant No.6 name was missing in the sale deed and he has signed as consenting witness to the sale deed. The plaintiff further submits that the husband of defendant No.1 Yerrappa passed away on 11/05/2003 and consequently the name of his wife Muniyamma/defendant No.1 finds place in the General Power of Attorney executed in favour of Nisarga Developers and Builders and in the sale deed 6 Judgment O.S.No.15834/2006 executed in favour of the plaintiff. On execution and registration of the sale deed possession of plaint schedule property being site was given to her and she has been in exclusive possession and enjoyment of the same right from that date. The plaintiff has not alienated or encumbered the plaint schedule property in any manner. The defendants are now making attempt to encroach upon the plaint schedule property and other properties and on 14/05/2006 defendants No.1 to 6 attacked them and in this connection Police complaint is lodged by brother of I. Rajeshwari one of the site owners in the lay out and also filed a suit for injunction. The defendants threatened that they would illegally occupy the suit schedule property and other sites already sold by them. The cause of action for the suit arose on 14/05/2006 when defendants attempted to illegally dispossess the plaintiff. The plaintiff prays to decree of permanent injunction against defendants restraining defendants from interfering with her possession and enjoyment over the suit 7 Judgment O.S.No.15834/2006 schedule property. The plaintiff also prays to award costs of the suit.
3) The defendants No.1 to 6 have filed written statement submitting that the suit of the plaintiff is not maintainable either in law or on facts. The plaintiff has filed false suit with an intention to harass defendants. The plaintiff has suppressed the material facts. The defendants No.1 to 6 with their respective children are absolute owners in possession and enjoyment of the lands bearing Sy.No.50/5 situated at Hoodi village, Krishnarajapuram Hobli, Bangalore East Taluk, measuring 3 acres 30 guntas and bounded on East by Thippaiah's land, West by Chikka Muniyamma's property, North by Gangappa's property and South by Kasim Sab's land. The said land was purchased by Muniyappa alias Pillaiah under a sale deed dated 06/05/1937 registered as document No.3597/1936-37, Book I volume No.391, in the office of the Sub-Registrar, Bangalore South 8 Judgment O.S.No.15834/2006 Taluk. After the death of Muniyappa alias Pillaiah, defendants along with their father Yerrappa, Rathnamma and Shanthamma have succeeded the estate of the said Muniyappa alias Pillaiah. These defendants treated the property as joint family property and till date there is no partition among the members of the joint family. The defendants along with their respective children are in possession and enjoyment of the lands. Since Yerrappa was the eldest male member of the joint family, the revenue records were standing in the name of Yerrappa and after his demise the revenue records are standing in the name of Muniyamma W/o late Yerrappa as per M.R.No.7/2003-04. Till date the said lands are agricultural lands and the same has not been changed to any other purpose as required under law. The defendants No.1 to 6 along with their children are the sole and absolute owners of the land bearing Sy.No.50/5 measuring 3 acres 30 guntas of land and they are in possession and enjoyment of the same. The defendants No.1 9 Judgment O.S.No.15834/2006 to 6 deny that the plaintiff acquired the property bearing site No.83 & 84, property bearing No.50/5, Khatha No.50/5/1 of Hoodi village, Krishnarajapuram Hobli, Bangalore South Taluk and also denied that the suit schedule property is part of large layout consisting of many other sites formed out of Sy.No.50/5 of Hoodi village, K.R. Puram Hobli, Bangalore South Taluk. The documents produced by the plaintiff are created for the purpose of the suit. The defendants No.1 to 6 submit that no sites are formed in lands bearing Sy.No.50/5 situated at Hoodi village, Krishnarajapuram Hobli, Bangalore East taluk, measuring 3 acres 30 guntas as alleged in the plaint and the description of the property shown in the schedule do not exist. The identity of the schedule propriety is disputed and more so in the light of the fact that the said land is agricultural property.
4) The defendants No.1 to 6 further denied the averments of the plaint that they have entered into an 10 Judgment O.S.No.15834/2006 agreement of sale with defendants No.7 to 9 and one Madesh. The defendants No.1 to 6 submit that defendants No.7 to 9 do not have or had any kind of right, title, interest or possession over the said lands to any extent whatsoever, as such the alleged claim of the plaintiff is without any basis. The defendants No.1 to 6 submit that defendants No.2 to 6 along with their father Yerrappa had agreed to sell lands in the said property in favour of Madhesh, K.N. Nagaraj, Subhan Sab and Balaraju at that point of time said persons availed the signatures of these defendants on several stamp papers. The facts being thus it appears that said persons have created the said agreement and the document does not bind the right, title, interest and possession of the said lands to any extent whatsoever. The defendants are not in custody of the original or the agreement of sale.
5) The defendants No.1 to 6 further submit that since defendants had agreed to sell 30 guntas of lands in the above 11 Judgment O.S.No.15834/2006 said property as per the request of the said persons defendants No.1 to 5 have executed general power of attorney dated 25/11/2003 in respect of lands in Sy.No.50/5 of Hoodi Village, K.R. Puram Hobli, Bangalore East Taluk measuring 30 guntas only, which is registered as document No. BNG (U)KRP/284/2003-04 in the office of the Sub Registrar, K.R.Puram, Bangalore. The defendants No.1 to 6 submit that defendant No.6 has not executed the said power of attorney in favour of the said persons. The defendants No.1 to 6 denied the averment of the plaint that on 25/11/2003 defendants No.1 to 5 executed a General Power of Attorney in favour of Nisarga Developers and Builders, represented by its partners, defendants No.7 to 9 to deal with the entire property being 3 acre 30 guntas in Sy.No.50/5 of Hoodi Village, K.R.Puram Hobli, Bangalore East Taluk. Apart from the General Power of Attorney dated 25/11/2003 in respect of lands in Sy.No.50/5 of Hoodi Village, K.R. Puram Hobli, Bnalgaore East Taluk, measuring 30 guntas 12 Judgment O.S.No.15834/2006 only which is registered as document No.BNG(U) KRP/284/2003-04 in the office of the Sub Registrar, K.R.Puram, Bangalore, these defendants have not executed any other document in favour of any person much less defendants No.7 to 9 to any extent whatsoever. The defendants No.1 to 6 further submit that the General Power of Attorney in favour of Nisarga Developers and builders represented by its partners, defendants No.7 to 9 to deal with the entire property being 3 acres 30 guntas in Sy.No.50/5 of Hoodi village, K.R. Puram Hobli, Bangalore East Taluk, bearing document No.283/2003-04 is forged and created and the same does not bind these defendants in any manner. The defendants No.1 to 6 further submit that the General Power of Attorney dated 24/11/2003 registered as document No.283/2003-2004 in the office of the Sub Registrar, K.R. Puram, Bangalore is executed by Kirit Mehta S/o Mansuklal Mehta in favour of B.M. Karunesh S/o late B.M. Madaiah in respect of property bearing Khatha No.790 situated at 13 Judgment O.S.No.15834/2006 Kaggadasapura village, K.R.Puram Hobli, Bangalore East Taluk.
6) The defendants No.1 to 6 further submit that the alleged General Power of attorney under which the plaintiff has secured the suit schedule property does not pertain to defendants No.1 to 5 and as such the alleged power of attorney holder i.e., defendants No.7 to 9 did not and never had any kind of right to deal in respect of the lands measuring 3 acres 30 guntas in Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore East Taluk under the alleged power of attorney as such the alleged deeds executed by defendants No.7 to 9 does not bind the right title and interest and possession of defendants No.1 to 6 and their family members to any extent whatsoever. Therefore the alleged sale deed on which the plaintiff is claiming title over the suit schedule property is one without any kind of authority and as such there cannot be any claim made under the said 14 Judgment O.S.No.15834/2006 documents to any extent whatsoever. The defendants No.1 to 6 further submit that defendants No.7 to 9 in connivance with the plaintiff and others have created documents with an intention to knock off the lands of these defendants. The defendants No.7 to 9 have created the alleged power of attorney with the sole purpose of making wrongful gain. The defendants No.1 to 6 further deny that roads were laid and sites are formed by defendants in Sy.No.50/5 of Hoodi village, K.R. Puram Hobli, Bangalore. The plaintiff is alien to these defendants and defendants are not in custody of alleged original documents. The defendants No.1 to 6 denied the plaint averments that defendants No.1 to 5 represented by defendants No.7 to 9 executed absolute deed of sale in favour of plaintiffs in respect of schedule property comprising of two sites as false and baseless. The defendants No.1 to 6 have not executed any power of attorney in favour of other defendants to the entire extent of 3 acres 30 guntas of land in Sy.No.50/5. The claim of 15 Judgment O.S.No.15834/2006 plaintiff having purchased the suit schedule property under the alleged power of attorney does not give any kind of right, title, interest and possession over the said lands to any extent. The alleged sale deed is created and no title has passed on to the plaintiff under the said document to any extent. The defendants No.1 to 6 further submit that Yerrappa is husband of defendant No.1 and father of defendants No.2 to 6 and that he expired on 11/05/2003 and they further submit that they have never furnished any documents to the plaintiff much less family tree and hence no reliance can be placed on the said documents created for the purpose of filing the suit. The defendants No.1 to 6 further submit that when they never executed the alleged power of attorney in favour of defendants No.7 to 9 nor defendants had put any persons in possession of lands being 3 acres 30 guntas in Sy.No.50/5 of Hoodi village, K.R. Puram Hobli, Bangalore East Taluk, the question of delivery of possession to any portion of the property by any person 16 Judgment O.S.No.15834/2006 much less defendants No.7 to 9 to the plaintiff is unfounded and baseless.
7) The defendants No.1 to 6 denied the allegations of the plaintiff that defendants are attempting to encroach the suit schedule property and other properties and on 14/05/2006 when the plaintiff met defendants No.1 to 6 they were attacked and a police complaint is lodged by brother of I. Rajeshwari are all false. The defendants No.1 to 6 submit that they along with family members are in possession and enjoyment of the above said lands and further they are exercising acts of ownership over the same. The lodging of complaint as alleged is only with a sole purpose of filing a false suit. The defendants No.1 to 6 further denied the allegations of the plaintiff that they threatened plaintiff to illegally occupy the plaint schedule property and also other sites already sold by them. The defendants No.1 to 6 submit that they are in possession and enjoyment of lands in 17 Judgment O.S.No.15834/2006 Sy.No.50/5 of Hoodi Village, K.R.Puram Hobli, Bangalore East Taluk measuring 3 acres 30 guntas, as such the claim of plaintiff is unfounded and baseless. The defendants further deny the allegations of the plaintiff that they threatened plaintiff with illegal dispossession from the plaint schedule property. They submit that plaintiff is not in possession of any portion of lands measuring 3 acres 30 guntas in Sy.No.50/5 of Hoodi village, K.R. Puram Hobli, Bangalore East Taluk and as such the alleged possession of the plaintiff is unfounded and untenable. The alleged sale deed is disputed and no right, title and interest or possession of any portion of the above said lands is transferred through the alleged deed. The alleged title deed do not make a reference regarding Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore East Taluk. The lands in Sy.No.50/5 of Hoodi village, K.R. Puram Hobli, Bangalore East Taluk, measuring 3 acres 30 guntas being agricultural land cannot be used for any other purpose without permission from the appropriate 18 Judgment O.S.No.15834/2006 authority and the lands have not lost the characteristics of agricultural nature. There is no cause of action for the suit and the one alleged is created for the purpose of the suit.
8) The defendants No.1 to 6 further submit that it is settled principle of law that injunction cannot be granted when the case is based upon a disputed document. The plaintiff has not filed the suit for declaration of title and possession over the suit schedule property and as such the suit is not maintainable and is liable to be dismissed. The defendants learnt about creation of the alleged documents and lodged complaint against defendants No.7 to 9 and another before K.R.Puram Police Station. The defendants No.1 to 6 submit that defendants No.7 to 9 have failed to comply the terms of the understanding and hence the agreement has stood cancelled as such the same is unenforceable in the eye of law. The plaintiff has undervalued the suit and has not paid proper court fee. The 19 Judgment O.S.No.15834/2006 defendants No.1 to 6 prays to dismiss the suit of the plaintiff with exemplary costs.
9) The defendants No.7 & 9 have not appeared and placed exparte. The defendant No.8 has filed written statement submitting that the plaintiffs have filed the suit suppressing the facts. There is no cause of action for the suit and the cause of action alleged is imaginary and illusionary. The defendant No.8 admits the averment made by the plaintiff in para 3 of the plaint that under deed of sale dated 12/12/2003 the plaintiff purchased the property No.50/5, Khatha No.50/5/1 situated at Hoodi village, Krishnarajapuram Hobli, Bangalore South Taluk as true. He also admits averments made in para 4 of the plaint that suit schedule property is part of larger lay out consisting of many other sites formed out of Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore South Taluk as true. The defendant No.8 further admits the averments made in para 5 20 Judgment O.S.No.15834/2006 of the plaint that defendants No.1 to 9 claims to be owners of 3 acres of 30 guntas of land in Sy.No.50/5 of Hoodi village, K.R. Puram Hobli, Bangalore East Taluk, had entered into agreement of sale on 22/01/2003 with defendants and one Madesha and thereby they had agreed to sell the entire 3 acres 30 guntas to defendants No.7 to 9 as true. The defendant No.8 also admit averments made in para 6 of the plaint that on 25/11/2003 defendants No.1 to 5 executed General Power of attorney in favour of Nisarga Developers and builders represented by its partners and defendants No.7 to 9 to deal with the entire property being 3 acres 30 guntas in Sy.No.50/5 of Hoodi village, K.R. Puram Hobli, Bangalore East Taluk and the said GPA is registered is also true. The defendant No.8 further admit the averments made in para 7 of the plaint that Roads were laid in the sites formed by defendants. The defendant No.8 admits para 9 and 10 of plaint and submits no knowledge of para 11 to 13 of plaint. The defendant No.8 further submit that defendants 21 Judgment O.S.No.15834/2006 1 to 6 being the absolute owners of the land bearing Sy.No.50/5 of Hoodi village, Krishnarajapuram Hobli, Bangalore East Taluk, measuring 3 acres 30 guntas had entered into an agreement of sale on 22/01/2003 with defendants No.7 to 9 and one Madesha wherein the defendants No.1 to 6 had agreed to sell the entire 3 acres 30 guntas of land in favour of the defendants No.7 to 9. On 25/11/2003 defendants No.1 to 5 have executed registered General Power of Attorney in favour of Nisarga Developers and builders represented by its partners i.e., the defendants No.7 to 9. The said General Power Attorney is registered in BNG (U) KRP /283/2003-04. Later defendants formed layout and have sold the sites to different persons on the strength of registered General Power of Attorney given by defendants No.1 to 6. The defendants No.1 to 6 being aware of the lay out being formed in Sy.No.50/5 not only supported the defendants No.7 to 9 to form the layout but also have come forward to execute the sale deeds. One 22 Judgment O.S.No.15834/2006 Narayanawamy has attested as consenting witness and remaining owners have attested their signature as witnesses to the said sale deeds and possession of the site is within the purchasers. The defendant No.8 further submit that defendants No.7 to 9 were given powers by way of registered general power of attorney by defendants No.1 to 5 to form layout in Sy.No.50/5 to get the sanctioned plan from the concerned authority and to sell the same. As per GPA the defendants No.7 to 9 have formed sites and have sold the respective sites. The defendants No.8 denied plaint paras No.14 and 16 of the plaint as false. The defendant No.8 prays to dismiss suit of the plaintiff with costs.
10) On the basis of above pleadings following Issues are framed:-
:ISSUES:
(1) Whether the plaintiff proves her lawful possession and enjoyment of suit schedule property as on the date of suit? 23
Judgment O.S.No.15834/2006 (2) Whether the plaintiff proves alleged interference by the defendants?
(3) Whether the plaintiff is entitled for the relief sought for?
(4) What decree or order?
11) The General Power of Attorney holder of plaintiff examined as PW.1 and marked documents at ExP1 to ExP4 and closed the plaintiff side evidence. The General Power of Attorney of defendant No.1 to 6 examined as DW.1 and marked ExD1 to ExD21(e). The defendant No.8 has not examined and not marked documents.
12) The plaintiff counsel argued and filed written argument and memo with citations. The defendants No.1 to 6 counsel argued and filed written argument and memo with citations. The defendant No.8 counsel not argued. Perused the records.
13) My findings to the above Issues are as under:- 24
Judgment O.S.No.15834/2006
Issue No.1) In Negative
Issue No.2) In Negative
Issue No.3) In Negative
Issue No.4) See final order for following:
:REASONS:
14) Issues No.1 to 3:
The General Power of Attorney holder of plaintiff R.Madhusudan Reddy S/o Ventakarama Reddy filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that the plaintiff purchased the property bearing sites No.83 & 84, property bearing No.50/5, Khata No.50/5/1 of Hoodi village, Krishnarajapuram Hobli, Bangalore South taluk under registered sale deed document No.24864/2003-04 at the office of Sub-Registrar, K.R.Puram, Bangalore on 23/02/2003. The defendants are not in possession of the schedule property. The schedule property is part of larger layout consisting of many other sites formed out of Sy.No.50/5 of Hoodi village, K.R.Puram 25 Judgment O.S.No.15834/2006 Hobli, Bangalore South Taluk. The defendants No.1 to 9 claiming to be the owner of Sy.No.50/5 measuring 3Acres 30 Guntas situated at Hoodi village K.R.Puram Hobli, Bengaluru East taluk (formerly Bangalore South Taluk) had on 22/01/2003 entered into an agreement of sale with defendants No.7 to 9 and another for total sale consideration of Rs.1,27,50,000/-. The original agreement of sale is in the custody of the defendants. That on 25/11/2003 the defendants No.1 to 5 executed General Power of Attorney in favour of Nisarga Developers and Builders represented by its partners defendants No. 7 to 9 to deal with the entire property being 3 Acres 30 Guntas in Sy.No.50/5 of Hoodi village K.R.Puram Hobli, Bangalore East Taluk (formerly Bangalore South Taluk). The power of attorney has been registered as document No.283/2003-04 in Book No.IV at the office of the Head quarters, Sub-Registrar, K.R.Puram Bangalore. The Original General Power of attorney is in the custody of the defendants No.7 to 9. That in 3 Acres 30 26 Judgment O.S.No.15834/2006 Guntas of land comprised in Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore roads were laid and sites were formed by the defendants. That on 12/12/2003 the defendants No.1 to5 represented by the defendants No.7 to 9 executed an absolute sale deed in his favour in respect of the schedule property which comprises two sites in the entire extent of 3Acres and 30 Guntas in Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore in the private layout formed. That the defendant No.6 name was missing in the sale deed and he signed as a consenting witness to the sale deed. That Yerappa the husband of defendant No.1 passed away on 11/05/2003 and consequently the name of his wife Muniyamma/defendant No.1 finds place in the General Power of Attorney executed in favour of Nisarga Developers and Builders and in the sale deed executed in his favour.
That on execution and registration of the sale deed possession of plaint schedule property being the site referred to above was given to the plaintiff and she has been in 27 Judgment O.S.No.15834/2006 exclusive possession and enjoyment of the same right from the date of purchase. He has not alienated or encumbered the schedule property in any manner. The defendants are now attempting to encroach upon the schedule property and other properties and in fact on 14/05/2006 when his representative and other purchasers had gone to meet the defendants No.1 to 6 in order to prevent continual problem, they were attacked and in this connection a police complaint had been lodged by the brother of I. Rajeswari, one of the site owners in the layout and who has filed suit for injunction. The defendants have threatened that they would illegally occupy the schedule property and other sites already sold by them and they had enough muscle power to do so and he could do nothing about it. The defendants No.1 to 6 in their written statement admitted the fact that the plaintiff is in possession of the schedule property and have made false allegations that only certain portion of the entire extent of land was agreed to be sold. That as the prices have 28 Judgment O.S.No.15834/2006 gone up, the defendants are trying to deny the execution of the General Power of Attorney and are trying to interfere with suit schedule property with the help of the masculine power and influence. If he has illegally dispossessed by the defendants or nature of the schedule property is changed, it would be violation of her legal rights and irreparable loss and injury will be cause to her and it would also result in multiplicity of legal proceeding. The PW.1 prays to decree the suit as prayed in the plaint. In support of oral evidence PW.1 marked the documents ExP1 to ExP4.
15) The General Power of Attorney holder of defendants No.1 to 6 D.S. Venkateshmurthy S/o D.Y.Srinivas @ Srinivasiah filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that the defendants No.1 to 6 have executed power of attorney to him on 27/07/2018 to conduct the suit as he is having personal knowledge regarding the subject matter of the suit. 29
Judgment O.S.No.15834/2006 The written statement filed by defendants No.1 to 6 is part and parcel of his affidavit. Further he is the son of defendant No.1 and he is personal knowledge regarding land bearing Sy.No.50/5 measuring 3 Acre 30 Guntas situated at Hoodi village, K.R.Puram Hobli, Bengaluru East Taluk. The defendants along with their family members including him are the absolute owners in possession and enjoyment of land bearing Sy.No.50/5 measuring 3Acres 30 Guntas situated at Hoodi village, K.R.Puram Hobli, Bengaluru East Taluk bounded by East: Thippaiah's land, West:
Chikkamuniyamma's property, North: Gangappa's property and South: Kasimsab's land. That Muniyappa @ Pillaiah had acquired the land bearing Sy.No.50/5 measuring 3 Acres 30 Guntas under sale deed dated 06/05/1937. After the death of said Muniyappa @ Pilliaiah his son Yarrappa has succeeded to the said property. The said property was treated as joint family property and being enjoyed till date by the family member and there is no partition among the 30 Judgment O.S.No.15834/2006 members of joint family. That during the life time of Yerrappa the revenue records were standing in his name and after his death the revenue records are standing in the name of Muniyamma as per MR No.7/2003-04. The land bearing Sy.No.50/5 is till date is an agricultural land and same is in exclusive possession and enjoyment of the family members of defendants No.1 to 6. That no sites are in the land bearing Sy.No.50/5 measuring 3Acres 30 Guntas situated at Hoodi village, K.R.Puram Hobli, Bngaluru East taluk The alleged claim of plaintiff regarding suit schedule property is one without any kind of basis and unidentifiable. The identity of alleged schedule property to the plaint is disputed. The alleged claim of plaintiff that defendants No.1 to 6 have entered into agreement of sale with defendants No.7 to 9 and one Madesh agreeing to sell 3 Acres 30 Guntas is false. The defendants No.2 to 6 had intended to sale 30 guntas of land to one Madesh and others, at that point of times the defendants No.7 to 9 took the signatures 31 Judgment O.S.No.15834/2006 of defendants No.2 to 6 on blank stamp paper and based on said bank papers they have created agreement and other documents. The defendants No.1 to 6 have executed General Power of Attorney on 25/11/2003 in respect of 30 Guntas in Sy.No.50/5 situated at Hoodi village, K.R.Puram Hobli, Bengaluru East Taluk, which document is registered as document No.BNG(U) KRP/284/2003-04 in the office of Sub-Registrar, K.R.Puram, Bengaluru. The alleged claim of plaintiff that on 25/11/2003 defendants No.1 to 5 have executed General Power of Attorney in favour of M/s Nisarga Developers and Builders as per document bearing no.283/2003-04 is false and baseless. The alleged power of attorney dated 24/11/2003 as document No.283/2003-04 in the office of Sub-Registrar, K.R.Puram is executed by Keerthi Mehtha in favour of B.M. Karunesh in respect of property, Katha No.790 situated at Kaggadasaspura village, K.R.Puram Hobli, Bengaluru Taluk. The defendants No. 7 to 9 in connivance with plaintiff and others have created 32 Judgment O.S.No.15834/2006 various documents and are trying to dispossess them from the land bearing Sy.No.50/5 measuring 3Acres 30 Guntas situated at Hoodi village, K.R.Puram Hobli, Bengaluru East Taluk. They have never delivered the possession of land Sy.No.50/5 measuring 3Acres 30 Guntas to anybody much less to defendants No.7 to 9 at any point of time. The alleged claim of the plaintiff regarding existence of suit schedule property is disputed, more so there is no reference number with regard to survey number in the alleged title deed on the basis of which plaintiff is claiming right over the suit schedule property. There is no cause of action for the suit. The plaintiff is not in possession and enjoyment of any portion of land bearing Sy.No.50/5 measuring 3Acres 30 Guntas situated at Hoodi village K.R. Puram Hobli, Bengaluru East Taluk. The defendants No.1 to 6 and respective family members including him are in exclusive possession and enjoyment of the aforesaid land. The defendants No.2 to 5 have lodged complaint against 33 Judgment O.S.No.15834/2006 defendants No.7 to 9 and another before K.R.Puram Police Station to take action against them for creating documents.
The plaintiff is neither owner of any portion of the land bearing Sy.No.50/5 measuring 3 Acres 30 Guntas nor is in possession of any portion of the same to any extent whatsoever. The plaintiff on the basis of alleged created documents without any right, title, interest or possession has filed the present suit with oblique motive. The DW.1 prays to dismiss the suit with exemplary costs. In support of oral evidence the DW.1 marked documents ExD17 to ExD20.
16) That in the cross examination of PW.1 the defendants No.1 to 6 counsel confronted documents and same are marked as ExD1 to ExD16. Further in the cross examination of DW.1 by the plaintiff counsel signatures on written statement of defendants No.1 to 6 were confronted, hence written statement of defendants No.1 to 6 was marked 34 Judgment O.S.No.15834/2006 as ExD21 and signatures of defendants No.2 to 6 marked as ExD21 (a) to ExD21(e).
17) The burden is on the plaintiff to prove that she is the absolute owner and in peaceful possession and enjoyment of the suit schedule property as on date of suit. The PW.1 marked ExP1 to ExP3. The ExP1 is General Power of Attorney dt.01/02/2011 executed by plaintiff Musunuru Kaladhar infavour of Madhusudan Reddy for conducting this suit. The ExP2 is absolute sale deed dt.23/02/2004 executed by defendants No.1 to 5 through their General Power of Attorney holders defendants No.7 to 9 in favour of plaintiff Musunnuru Kaladhar represeneted by his Special Power of Attorney M.Shrinivasa Reddy S/o Late Subba Rami Reddy respect of property bearing No.83 & 84, property No.50/5, Khata No.50/5/1 situated at Hoodi, Krishnarajapuram Hobli, Bangalore East Taluk, formerly Bangalore South Taluk and this property comes under 35 Judgment O.S.No.15834/2006 jurisdiction of Mahadevpura CMC measuring East to West:80 feet and North to South:64 feet in total 5120 square feet bounded by East: Site No.85, West Site No.82, North:
Road, South: Private Property. In ExP3 two encumbrance certificates are marked one for the period from 01/04/2005 to 17/05/2006 in respect of the schedule property and another one for the period from 01/04/2003 to 31/03/2005 wherein there are entry regarding purchase of suit schedule property by plaintiff from defendants No.7 to 9 General Powr of Attorney holders of the defendants No.1 to 5. The ExP4 is General Power of Attorney dt.04/06/2018 executed by plaintiff Musunuru Kaladhar in favour of his father M.Srinivasa Reddy.
18) On the contrary in the cross examination of PW.1 the defendants No.1 to 6 counsel confronted documents and marked as ExD1 to ExD16. The ExD1 is General Power of Attorney dt.25/11/2003 executed by defendants No.1 to 5 in 36 Judgment O.S.No.15834/2006 favour of defendants No.7 to 9 in respect of property bearing Sy.No.50/5 situated at Hoodi village, Krishnarajapuram Hobli Bangalore East Taluq totally measuring - Acres 30 Gunats bounded by East: Thippaiah's land, West: Remaining land of vendors, North: Gangapp's property, South: Kasim Sab's land.
19) The ExD3 is MR No.7/2003-2004 Pouti 07/10/2003, as per it the name of Yarrappa S/o Muniyappa @ Pillayya is rounded off as dead and name of his wife Muniyamma is mentioned to Sy.No.50/5 measuring 3 Acres 30 Guntas situated at Hoodi village, K.R.Puram Hobli, Bangalore East Taluk as legal heir. The ExD4 is sketch of Sy.No.50/5 measuring 30 Gunats of Hoodi village.
20) The ExD5 is Record of Right of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2001- 2002, where in there is entry of name of Yarrappa S/o 37 Judgment O.S.No.15834/2006 Muniyappa @ Pillayya as owner and occupant and way of possession mentioned in column No.10 as per IHC No.8/84-85. The ExD6 is Record of Right of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2002- 2003, where in there is entry of name of Yarrappa S/o Muniyappa @ Pillayya as owner and occupant and way of possession mentioned in column No.10 as per IHC No.8/84-85.
21) The ExD7 is Record of Right of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2003- 2004, where in there is entry of name of defendant No.1 as owner and occupant and way of possession mentioned in column No.10 as per MR No.7/2003-2004 Pouti 07/10/2003.
38
Judgment O.S.No.15834/2006 22) The ExD2 & ExD8 are same Record of Right of
Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2004-2005, where in there is entry of name of defendant No.1 as owner and occupant and way of possession mentioned in column No.10 as per MR No.7/2003-2004 Pouti 07/10/2003.
23) The ExD9 is Record of Right of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2005- 2006, where in there is entry of name of defendant No.1 as owner and occupant and way of possession mentioned in column No.10 as per MR No.7/2003-2004 Pouti 07/10/2003.
24) The ExD10 is Record of Right of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2006- 39
Judgment O.S.No.15834/2006 2007, where in there is entry of name of defendant No.1 as owner and occupant and way of possession mentioned in column No.10 as per MR No.7/2003-2004 Pouti 07/10/2003.
25) The ExD11 is Record of Right of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2007- 2008, where in there is entry of name of defendant No.1 as owner and occupant and way of possession mentioned in column No.10 as per MR No.7/2003-2004 Pouti 07/10/2003. The ExD12 is Record of Right of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2008- 2009, where in there is entry of name of defendant No.1 as owner and occupant and way of possession mentioned in column No.10 as per MR No.7/2003-2004 Pouti 07/10/2003.
40
Judgment O.S.No.15834/2006 26) The ExD13 is Record of Right of Sy.No.50/5
measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2009- 2010, where in there is entry of name of defendant No.1 as owner and occupant and way of possession mentioned in column No.10 as per MR No.7/2003-2004 Pouti 07/10/2003. The ExD14 is Record of Right of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2010- 2011, where in there is entry of name of defendant No.1 as owner and occupant and way of possession mentioned in column No.10 as per MR No.7/2003-2004 Pouti 07/10/2003.
27) The ExD15 is Record of Right of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2011- 2012, where in there is entry of name of defendant No.1 as 41 Judgment O.S.No.15834/2006 owner and occupant and way of possession mentioned in column No.10 as per MR No.7/2003-2004 Pouti 07/10/2003. The ExD16 is Record of Right of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoody village, K.R.Puram Hobli, Bangalore East Taluk for the year 2012- 2013, where in there is entry of name of defendant No.1 as owner and occupant and way of possession mentioned in column No.10 as per MR No.7/2003-2004 Pouti 07/10/2003.
28) The DW.1 in his examination in chief marked ExD17 to ExD20. The ExD17 is General Power of Attorney executed by defendants No.1 to 5 in favour of D.S. Venkatesh Murthy S/o D.Y.Srinivas @ Srinivasaiah on 27/07/2018 to conduct this suit. The ExD18 is General Power of Attorney executed by Kirit Mehta S/o Mansuklal Mehta in favour of B.M.Karunesh S/o late B.M.Madaiah partner of M/s Adarsh Developers on 24/11/2003. 42
Judgment O.S.No.15834/2006 29) The ExD19 is complaint copy given by defendants
No.1 to 5 against defendants No.7 to 9 in K.R.Puram Police Station and ExD20 is acknowledgement given by the police. Further in the cross examination of DW.1 signatures of defendants No.1 to 5 on written statement confronted and written statement marked as ExD21 and signatures of defendants No. 1to 6 identified by DW.1 are marked as ExD21(a) to ExD21(e).
30) The burden is on the plaintiff to prove her lawful possession and enjoyment of suit schedule property as on the date of suit and the defendants are causing obstructions to her possession and enjoyment over the suit schedule property. The plaintiff contention that defendants 1 to 5 have executed G.P.A. in favour of Nisarga Developers and Builders represented by its partners, defendants No.7 to 9 to deal with the entire property bearing 3 acres 30 guntas in Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore East Taluk, (formerly Bangalore South Taluk) The power of attorney has been registered as 43 Judgment O.S.No.15834/2006 document No.283/2003-04 in book IV at the office of the Head Quarters, Sub Registrar, K.R.Puram, Bangalore. The plaintiff further contention that on 12/12/2003 defendants No.1 to 5 represented by defendants No.7 to 9 executed an absolute deed of sale in her favour in respect of the suit schedule property and defendant No.6 was consenting witness to the sale deed. The plaintiff is not examined personally and her power of attorney R. Madhusudhan Reddy S/o Venkatarama Reddy examined as PW1. The ExP2 is absolute sale deed dt.23/02/2004 regarding purchase of suit schedule property by the plaintiff as stated above. The ExP2 discloses that defendants No.1 to 5 through their General Power of Attorney holder defendants No.7 to 9 sold the suit schedule property in favour of plaintiff Musunnuru Kaladhar. In the sale deed the schedule the property it is mentioned as Sites No.83 and 84 property No.50/5, Khata No.50/5/1 situated at Hoodi, Krishnarajapuram Hobli, Bangalore East Taluk, Bangalore South Taluk and this property comes under jurisdiction of Mahadevpura CMC measuring East to West:80 feet and North to South:64 feet in total 5,120 square 44 Judgment O.S.No.15834/2006 feet bounded by East: Site No.85, West Site No.82, North: Road, South: Private Property.
31) The defendants No.1 to 6 have filed written statement as discussed above. But none of the defendants have appeared personally before the court and deposed evidence, whereas the General Power of Attorney holder of defendants No.1 to 5 examined as DW.1. As per DW.1 he is son of defendant No.2 and he know about the land bearing Sy.No.50/5 measuring 3 Acre 30 Guntas situated at Hoodi village, K.R.Puram Hobli, Bengaluru East Taluk and the said land is in possession and enjoyment of family members of defendants No.1 to 6. The said land was acquired by Muniyappa alias Pillaiah under sale deed dated 06/05/1937 and after the death of said Muniyappa @ Pilliaiah his son Yarrappa has succeeded to the said property and after the death of Yarrappa the revenue records are standing in the name of his wife Muniyamma as per MR No.7/2003-04. The said land bearing Sy.No.50/5 is till date is an agricultural land and same is in exclusive possession and enjoyment of the family members of the defendants No.1 to 6. The DW.1 denied 45 Judgment O.S.No.15834/2006 that defendants No.1 to 6 entered into agreement of sale with defendant No.7 to 9 and one Madesh agreeing to sell 3 acres 30 guntas of land. The defendants No.2 to 6 had intended to sale 30 guntas of land to one Madesh and others, at that point of times the defendants No.7 to 9 took the signatures of defendants No.2 to 6 on blank stamp pages and based on said blank papers they have created agreement and other documents. The contention of DW.1 that defendants No.1 to 6 have executed General Power of Attorney on 25/11/2003 in respect of 30 Guntas in Sy.No.50/5 situated at Hoodi village, K.R.Puram Hobli, Bengaluru East Taluk, which document is registered as document No.BNG (U) KRP/284/2003-04 in the office of Sub-Registrar, K.R.Puram, Bengaluru. The alleged claim of plaintiff that on 25/11/2003 defendants No.1 to 5 have executed General Power of Attorney in favour of M/s Nisarga Developers and Builders as per document bearing No.283/2003-04 is false and baseless. The defendants No.1 to 5 have never delivered the possession of land Sy.No.50/5 measuring 3 Acres 30 Guntas to anybody much less to defendants No.7 to 9 at any point of time. Therefore 46 Judgment O.S.No.15834/2006 contention of defendant No.1 to 5 is that land bearing Sy.No.50/5 measuring 3 Acres 30 Guntas situated at Hoodi village K.R. Puram Hobli, Bengaluru East Taluk is still agricultural land.
32) Then the burden lies upon the plaintiff to prove that the suit schedule property is part of larger layout consisting of many other sites formed out of Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore South Taluk measuring 3 acres 30 gunas and the said land has been converted into non agricultural purposes and sites were formed and the plaintiff has purchased the suit schedule property among the sites formed in the said land. That the plaintiff has not produced documents to show that the land in Sy.No.50/5 at Hoodi, Krishnarajapuram Hobli, Bangalore East Taluk, (formerly Bangalore South Taluk) has been converted to non agricultural purposes and a lay out has been formed and property bearing Site No.83 & 84, property No.50/5, Khata No.50/5/1 [suit schedule property] is purchased by him by producing order copy of Deputy Commissioner in respect of conversion of land and layout plan issued by 47 Judgment O.S.No.15834/2006 competent authority wherein the site numbers are shown. But the plaintiff has not produced any documents. Whereas the PW.1 in the cross examination deposed evidence that " I have no any documents to show the possession of defendants 7 to 9 in Sy.No.50/5 to the extent of 3 Acre 30 Guntas. I am not an agriculturist. DC has not approved NA order in respect of Sy.No.50/5." Hence it is clear from the evidence of PW.1 that there is no order of deputy commissioner for conversion of land bearing Sy.No.50/5 of Hoodi village for non agriculture purpose.
33) The ExD3 MR No.7/2003-2004 discloses that after the death of Yarrappa S/o Muniyappa @ pillayya, the name of his wife Muniyamma [defendant No.1 herein] is shown in respect of Sy.No.50/5 measuring 3 Acres 30 Guntas situated at Hoody village, K.R.Puram Hobli, Bangalore East Taluk as legal heir. The defendants No.2 to 6 are children of Muniyamma W/o Late Yerrappa. Further ExD2, ExD7 to ExD16 are record of Rights of Sy.No.50/5 measuring 3 Acres 30 Guntas situated as Hoodi 48 Judgment O.S.No.15834/2006 village, K.R.Puram Hobli, Bangalore East Taluk for the period from 2003-2004 to 2011-2012 discloses name of Yerrappa S/o Muniyappa and after his death name of Muniyamma W/o late Yerrappa is shown as owner of the said land.
34) Further as per the plaintiff defendants No.1 to 5 executed General Power of Attorney in favour of Nisarga Developers and Builders represented by its partners, defendants No.7 to 9 to deal with the entire property bearing 3 acres 30 guntas in Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore East Taluk, (formerly Bangalore South Taluk). But the plaintiff has not produced copy of the General Power of Attorney. Whereas DW.1 marked ExD18 General Power of Attorney registered as document No.283/2003-2004 in the office of the Sub Registrar, K.R. Puram, Bangalore executed by Kirit Mehta S/o Mansuklal Mehta in favour of B.M.Karunesh S/o late B.M.Madaiah partner of M/s Adarsh Developers on 24/11/2003. But the document number mentioned in ExD18 is dated 24/11/2003 and the document of GPA referred by the plaintiff is dated 25/11/2003 as discussed above are similar. Then the 49 Judgment O.S.No.15834/2006 burden is on the plaintiff to prove regarding execution of General Power of Attorney by defendants No.1 to 5 in favour of Nisarga Developers and Builders represented by its partners, defendants No.7 to 9 to deal with the entire property bearing 3 acres 30 guntas in Sy.No.50/5 of Hoodi village, K.R.Puram Hobli, Bangalore East Taluk, (formerly Bangalore South Taluk). To prove said contention the plaintiff has not produced any documents whereas DW.1 marked document ExD1 General Power of Attorney dt.25/11/2003 registered as document No.284/2003-2004 in the office of Head Quarter Sub Registrar, K.R. Puram, Bangalore executed by defendants No.1 to 5 in favour of Nisarga Developers and Builders represented by defendants No.7 to 9 in respect of property bearing Sy.No.50/5 situated at Hoodi village, Krishnarajapuram Hobli Bangalore East Taluq totally measuring - Acres 30 Gunats. Hence from ExD1 it is clear that defendants No.1 to 5 have executed power of attorney only to the extent of 30 guntas in Sy.No.50/5 situated at Hoodi village, Krishnarajapuram Hobli Bangalore East Taluk 50 Judgment O.S.No.15834/2006 in favour of Nisarga Developers and builders and not for entire land measuring 3 acres 30 guntas.
35) As per the plaintiff she has purchased the suit schedule property from defendants No.7 to 9 as General Power of Attorney holders of defendants No.1 to 5. But defendants No.7 and 9 not appeared and they were placed exparte and only defendant No.8 appeared through his counsel and filed written statement, but he has not led any oral evidence and not marked any documents to prove that defendants No.1 to 5 executed GPA in favour of Nisarga Developers and Builders represented by defendants No.7 to 9 in respect of entire property bearing Sy.No.50/5 situated at Hoodi village, Krishnarajapuram Hobli Bangalore East Taluk totally measuring 3 Acres 30 Gunats. The defendant No.8 admits in his written statement the allegations made by the plaintiff in his plaint. Then the burden is on the defendant No.8 to prove the contention taken in the written statement. But defendant No.8 has not examined himself and also not marked any documents.
51
Judgment O.S.No.15834/2006 36) The plaintiff counsel filed written argument in length
and filed two citations, one relevant citation is referred here. The plaintiff counsel argument that that Power of Attorney (ExD17) had to be proved like any other document by examining the witnesses to the same.
R.F.A. No.105/1978 "M/s. Electric Construction and Equipment Co Ltd., V. M/s. Jagjit Electric Works]
1) Evidence Act, S. 85: What are the conditions to be satisfied for raising a presumption about the execution of a power of attorney? Firstly, it must be executed before Notary Public and Secondly, it must be authenticated by a Notary public.
37) The defendant No.1 to 6 counsel filed written argument and orally argued that the alleged ownership, possession over suit schedule property is denied by the defendants No.1 to 6, hence the suit filed without relief of declaration the suit for permanent injunction is not maintainable The defendants No.1 to 6 counsel while arguing relied upon decisions reported in 52 Judgment O.S.No.15834/2006 AIR 2008 SC 2033 Anathulla Sudhakar V/s. P Buchi Reddy (dead) by LR's and Ors, A) Specific Relief Act (47 of 1963) S. 38 Prohibitory Injunction relating to immovable property-Suit for- Scope of.
B) Specific Relief Act( 47 of 1963) Se.34, S.38- Suit for injunction simpliciter- Maintainability-plaintiffs claim for possession purely based on title through 'R' Who claimed to be owner in pursuance of oral gift in year 1961 without property being mutated in her name-Whereas defendant claimed title from original owner who was registered as owner in revenue records- Complicated questions of title involved- Could be examined only in a title suit, for declaration and consequential relief, and not in a suit for injunction simpliciter.
38) The plaintiff has to prove his case on his own leg, and plaintiff cannot take the weakness of defendants. Initially the plaintiff has to prove the provisions of Order 6 Rule CPC for presentation of plaint. But the averments of plaint disclose that the suit is filed by Musunnuru Kaladhar through his General 53 Judgment O.S.No.15834/2006 Power of Attorney M.Srinivasa Reddy. But GPA is not produced. Further plaint is signed by GPA M.Srinivas Reddy One R. Madhusudhan Reddy General Power of Attorney holder of the plaintiff examined as PW.1 on 29/05/2012. But ExP1 General Power of Attorney said to have been executed by plaintiff on 01/02/2011. Hence as on the date of filing the suit the R. Madhusudhan Reddy was not General Power of Attorney holder. That the ExP4 GPA is executed by plaintiff to M.Srinivas Reddy 04/06/2018 after completion of chief examination and cross examination of PW.1, but non production GPA executed by the plaintiff at the time of filing suit is not properly explained. Hence arguments of plaintiff counsel that plaintiff ratified same at the latter stage by executing General Power of Attorney ExP4 is not proper to accept. Hence the citations referred by the plaintiff counsel as discussed above does not applies to the stand taken by them.
39) That already discussed above the plaintiff has failed to prove that the suit schedule property bearing Sites No.83 & 84, property No.50/5, Khata No.50/5/1 is formed in the layout 54 Judgment O.S.No.15834/2006 formed in Sy.No.50/5 at Hoodi, Krishnarajapuram Hobli, Bangalore East Taluk, (formerly Bangalore South Taluk) since the plaintiff has not produced necessary documents regarding conversion of land from agricultural purpose to non agricultural purposes and also formation of lay out in the said land. The plaintiff has also not produced any layout plan. Further the suit is filed in the year 2006, but it is not clarified by the plaintiff that even though ExP2 stated to have been registered on 23/02/2004 why the Khatha of the suit schedule property is not transferred in her name. The plaintiff has not produced Khatha extract or Khatha certificate regarding transfer of Khatha in respect of the suit schedule property. The plaintiff has also not produced tax paid receipts of the suit schedule property. Therefore the plaintiff has failed to prove by way of documentary evidence that he is the absolute owner in possession and enjoyment of the suit schedule property as on the date of the suit. Hence the question of interference by the defendant does not arise. The plaintiff failed to prove Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative. 55
Judgment O.S.No.15834/2006 40) Issue No.4. :-
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed by him, then corrected and signed and pronounced on this 19th day of August 2020).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF: PW.1 : R.Madhusudan Reddy S/o Ventakarama Reddy DOCUMENTS MARKED FOR THE PLAINTIFF:
ExP1 : General Power of Attorney dt.01/02/2011
ExP2 : Absolute sale deed dt.23/02/2004
ExP3 : Two encumbrance certificates
ExP4 : General Power of Attorney dt.04/06/2018
56
Judgment O.S.No.15834/2006
WITNESSES EXAMINED FOR THE DEFENDANTS:
DW1 : D.S.Venkateshmurthy
S/o D.Y.Srinivas @ Srinivasiah
DOCUMENTS MARKED FOR THE DEFENDANTS:
ExD1 : General Power of Attorney dt.25/11/2003
ExD2 : Record of Rights
ExD3 : MR No.7/2003-2004
ExD4 : Sketch
ExD5 to 16 : Record of Rights
ExD17 : GPA dated 27/07/2018
ExD18 : GPA dated 24/11/2003
ExD19 : Complaint copy
ExD20 : Acknowledgement
ExD21 : Written Statement
ExD21(a) to ExD21(e) : Signatures of defendants No. 1 to 6 XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.