Bangalore District Court
Sri.B.Satish Kumar vs Sri.Ashok Kumar Agarwal on 1 October, 2015
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU (C.C.H.No.7).
Dated: This the 1st Day of October 2015.
Present: Sri. M.S.Patil, B.Sc., LL.B.
XXII Addl.City Civil & Sessions Judge.
Bengaluru.
O. S. No. 4 7 8 8 / 2014
Plaintiffs: 1. Sri.B.Satish Kumar,
Aged about 41 years,
s/o.Late Sri.B.Basavaraj,
2. Sri.B.Ashok Kumar,
Aged about 42 years,
s/o.Late Sri.B.Basavaraj,
Both are residing at No.23/4, 13th Main,
R.K.Layout, Padmanabhanagar,
Bengaluru-560070.
By Sri.M.S.Manjunath, Advocate.
Vs.
Defendants: 1. Sri.Ashok Kumar Agarwal,
Aged about 63 years,
s/o.late Sri.K.C.Agarwal.
2. Smt.Geetha Agarwal,
Aged about 56 years.
w/o.Sri.Ashok Kumar Agarwal.
Both residing at no.541, 22nd Cross,
14th Main, Banashankari 2nd Stage,
Bengaluru-560070.
D1, D2 - Exparte.
2 O.S.No.4788/2014
Date of institution of suit 27-06-2014
Nature of the suit Permanent injunction and
Mandatory injunction
Date of commencement of 28-08-2015
recording of evidence
Date on which Judgment 01-10-2015
was pronounced
Total duration Days Months Year
04 09 01
JUDGMENT
This suit filed by the plaintiffs 1 and 2 against the above named defendants for grant of permanent injunction, restraining defendants 1 and 2 from interfering with plaintiffs' peaceful possession and enjoyment over suit property or from trespassing or meddling with the suit schedule property held by the plaintiffs and for directing defendants by way of mandatory injunction, to remove the unauthorized construction, in the suit schedule property done by the defendant and for costs and such other reliefs, which the Court deems fit, in the circumstances of this case.
2. The brief facts of the plaint averments are that, the suit item No.1 and B properties are joint absolute properties of plaintiffs 1 and 2 as they have purchased the same from their vendors by name G.Rajkumar and others under registered sale deed dated 24-4-2006 and since then, they are in possession of suit schedule item No.1 and 2 3 O.S.No.4788/2014 properties and that, the suit item No.1 and 2 properties, which are carved from 2 acres was originally belonging to M.Ramaiah, who was absolute owner of 2 acres of land and in family partition between said Ramaiah and his sons. Said 2 acres of land fell to the share of sons of Ramaiah and thus, they became absolute owners of said 2 acres and out of that, these sons of Ramaiah, by name Govindaraj, Tukaram, Lakshminarayan and Prakash, have sold suit item No.1 and 2 properties under registered sale deed dated 7-2-2004 in favour of P.Shankar and K.Venkatesh and later, P.Shankar and K.Venkatesh sold the suit item No.1 and 2 properties under registered sale deed dated 23-7-2004 in favour of G.RajKumar and others, who in turn have sold suit item No.1 and 2 properties in favour of the plaintiffs, by name Satish Kumar and Ashok Kumar under registered sale deed dated 24-4-2006 and since then, the plaintiffs have become absolute owners of suit property and that, the plaintiffs had deposited the title deeds of suit schedule property with Sir M.Visweswaraya Co-operative Bank Ltd. under registered document dated 15-6-2006 and later, Sir M.Visweswaraya Co-operative Bank Ltd. has discharged the deposit of title deeds, in favour of plaintiffs, vide registered discharge deed dated 12-2-2013 and since then, the plaintiffs are in lawful possession and enjoyment of suit schedule properties and further, it is contended that, 4 O.S.No.4788/2014 defendants being adjoining site owners, have constructed their structures by trespassing into the suit property belonging to plaintiffs and on dated 14-6-2014 and on 15-6-2014 these defendants have, with the help of their henchmen, attempted to dispossess and trespass into the suit land and thus, the defendants attempted to interfere with the peaceful possession and enjoyment over the suit property held by the plaintiffs and hence, this suit for permanent injunction restraining defendants 1 and 2 from interfering with plaintiffs' peaceful possession and enjoyment over suit property and for mandatory injunction for directing defendants to remove the unauthorized construction done by the defendants into the suit property of plaintiffs, together with costs and such other reliefs, which Court deems fit in the circumstances of this case.
3. The defendants did not appear before this Court, when the summons is served to them through paper publication. Hence, these defendants are placed Ex-Parte.
4. The following Points arise for my consideration:
1. Whether plaintiffs prove that, they are in lawful possession of suit Item Nos.1 and 2 properties?5 O.S.No.4788/2014
2. Whether plaintiffs prove that, defendants are obstructing their peaceful possession and enjoyment over suit Item Nos.1 and 2 properties?
3. Whether the plaintiffs prove that, they are entitled to permanent injunction and mandatory injunction as prayed for in this suit?
4. What Decree or Order?
5. The plaintiffs, to prove their case, examined 1st plaintiff as P.W.1 and relied upon 6 documents marked as Exs.P1 to P6 and closed their side.
6. Heard the arguments of Learned Counsel for the plaintiffs.
7. My answer to the above Points are as under:
Point No.1 - in the Affirmative; Point No.2 - in the Affirmative; Point No.3 - in the Affirmative as far as permanent injunction is concerned and in the Negative as far as mandatory injunction is concerned;
Point No.4 - as per Final Order below; for the following:6 O.S.No.4788/2014
Reasons
8. Point No1. : The plaintiffs contend that, they are absolute owners of suit property as they have purchased the suit property from their vendor G.Rajkumar and others, through registered sale deed dated 24-4-2006 and further, they contend that, originally M.Ramaiah was absolute owner of 2 acres of land in family partition between himself and his sons, the said 2 acres had fallen to the share of his sons by names Govindaraj, Tukaram, Lakshminarayan and Prakash and these sons of Ramaiah have sold suit item No.1 and 2 properties under registered sale deed dated 7-2-2004 in favour of P.Shankar and K.Venkatesh, who in turn, sold the suit item No.1 and 2 properties, in favour of G.Rajkumar and others under registered sale deed dated 23-7-2004 and that, said G.Rajkuamr and others, have in turn sold suit property under registered sale deed dated 24-4-2006 in favour of plaintiffs by name Satish Kumar and Ashok Kumar and that, these plaintiffs, after purchase of suit property under registered sale deed dated 24-4-2006, have deposited title deeds with Sir M.Visweswaraya Co-operative Bank Ltd. and obtained loan and thereafter, they repaid the loan and got the title deeds discharged from Sir M.Visweswaraya Co-operative Bank Ltd. under document dated 12-2-2013 and since then, plaintiffs 7 O.S.No.4788/2014 are in joint absolute ownership and possession of suit item No.1 and 2 properties.
9. In order to substantiate their contention, the plaintiffs examined 1st plaintiff as P.W.1, who has reiterated the same facts in his evidence as P.W.1.
Further, he has relied upon 6 documents marked as Exs.P1 to P6. Exs.P1 to P6 are: Ex.P1- sale deed dated 24-4-2006 executed by G.Rajkumar and others in favour of plaintiffs, Ex.P2-sale deed dated 23-7-2004 executed by P.Shankar and K.Venkatesh in favour of G.Rajkumar and others, Exs.P3 & P4-khatha certificate and khatha extract in the names of plaintiffs, Ex.P5-copy of Discharge Deed executed by Sir M.Vishweswaraya Co-operative Bank ltd. dated 12-2-2013, Ex.P6-copy of sale deed dated 7-2-2004 executed by M.R.Govindaraju and 3 others in favour of P.Shankar and K.Venkatesh.
10. On going through the oral evidence of P.W.1, which is fully corroborated by documents marked as Exs.P1 to P6 and in the absence of any evidence produced by defendants to rebut oral evidence of P.W.1 and to disprove Exs.P1 to P6, I hold the plaintiffs have proved Point No.1. Accordingly, Point No.1 is held in the Affirmative.
8 O.S.No.4788/201411. Point No. 2 : The plaintiffs contend that the defendants have obstructed their peaceful possession and enjoyment over suit property on 14-6-2014 at 10 a.m. and on 15-6-2014, through their henchmen. In order to substantiate this contention, the plaintiffs have examined 1st plaintiff as P.W.1, who has reiterated the same facts in his evidence. Evidence of P.W.1 remained unchallenged and in view of the fact that, defendants remained exparte to the suit and in view of evidence of 1st plaintiff as P.W.1, I hold that plaintiffs have proved Point No.2. Accordingly, Point No.2 is held in the Affirmative.
12. Point No. 3 : The plaintiffs contend that, the defendants have attempted to trespass into the suit land, through henchmen on dated 14-06-20015 and 15-06-2014 and on this ground, they pray for permanent injunction restraining defendants 1 and 2 from interfering with peaceful possession and enjoyment over suit property held by plaintiffs jointly.
In view of my answer to Point No.1 and 2, I hold Point No.3 partly in the Affirmative, by holding that, the plaintiffs are jointly entitled to grant of permanent injunction in their favour, against defendants, for directing defendants not to trespass into suit land or not to dispossess the plaintiffs from the suit land or not to interfere with peaceful 9 O.S.No.4788/2014 possession and enjoyment over property held by the plaintiffs jointly.
However, having regard to the facts that, the plaintiffs have not proved through evidence, as to, how much area of suit item No.1 and 2 property is trespassed into by defendants, by constructing structure over it, I hold that, the plaintiffs have failed to prove the fact of grant of mandatory injunction in their favour against defendants. Therefore, point No.3 is held partly in the Affirmative, so far as grant of permanent injunction is concerned and partly in the Negative, so far as grant of mandatory injunction is concerned.
13. Point No. 4. : In view of the foregoing reasons and in the result, I proceed to pass the following:
ORDER The Suit of the plaintiffs is decreed in part.
The plaintiffs are entitled to grant of permanent injunction for restraining defendants 1 and 2 from trespassing into the suit item No.1 and 2 properties and from meddling with item No.1 and 2 suit property held by the plaintiffs jointly.10 O.S.No.4788/2014
The suit of the plaintiffs for
mandatory injunction for directing
defendants to remove unauthorized
construction done by them into the suit property, is dismissed.
Parties are directed to bear their own costs.
Draw Decree accordingly.
(Dictated to the Judgment Writer, computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 1st day of October 2015.) (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, *sb Bengaluru.11 O.S.No.4788/2014
ANNEXURE List of witnesses examined for the plaintiffs:
P.W.1 B.Satish Kumar List of documents exhibited for the plaintiffs:
Ex.P1- sale deed dated 24-4-2006 executed by G.Rajkumar and others in favour of plaintiffs Ex.P2 - sale deed dated 23-7-2004 executed by P.Shankar and K.Venkatesh in favour of G.Rajkumar and others Exs.P3 & P4 - BBMP khatha certificate and khatha extract in the names of plaintiffs Ex.P5 - copy of Discharge Deed executed by Sir M.Vishweswaraya Co-operative Bank ltd. dated 12-2-2013 Ex.P6 - copy of sale deed dated 7-2-2004 executed by M.R.Govindaraju and 3 others in favour of P.Shankar and K.Venkatesh.
List of witnesses examined and documents marked for defendants:
Nil (M.S.PATIL) XXII Addl. City Civil & Sessions Judge, Bengaluru.12 O.S.No.4788/2014
01-09-2015 Judgment passed and pronounced in Open Court. (vide separate Judgment). Operative portion thereof reads as under:
The Suit of the plaintiffs is decreed in part.
The plaintiffs are entitled to grant of permanent injunction for restraining defendants 1 and 2 from trespassing into the suit item No.1 and 2 properties and from meddling with item No.1 and 2 suit property held by the plaintiffs jointly.
The suit of the plaintiffs for mandatory injunction for directing defendants to remove unauthorized construction done by them into the suit property, is dismissed.
Parties are directed to bear their own costs.
Draw Decree accordingly.
XXII A.C.C. & S.J., Bengaluru.