Bangalore District Court
Smt. Selvi. S vs Sri. Shekar on 17 April, 2018
IN THE COURT OF XXII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU
NGALURU (C.C.H.No.7).
(C.C.H.No.7).
Dated: This the 17th of April 2018.
Present: Ms.VELA. D.K., B.A., LL.B.(Hons.)
XXII Addl. City Civil & Sessions Judge.
Bengaluru.
O. S. No. 984/
984/ 2013
2013
PLAINTIFF 1 Smt. Selvi. S,
D/O M. Subramnya,
W/o Prabhakar,
Aged about 43 years,
R/at No. 152/32, 5th Main,
8th A Cross, Ganesha Block,
Mahalkshmipura,
Bengaluru.
(By Sri. R. Padmanabha, Advocate)
.Vs.
DEFENDANTS Sri. Shekar,
S/o M. Subramnya,
1
Aged about 41 years,
Sri. Prakash,
S/o M. Subramnya,
Aged about 38 years,
2
D1 and D2 are R/at No. 120,
5th Cross, Sai Baba Nagara,
Srirampuram, Bengaluru.
Sri. Shankar,
3
S/o M. Subramnya,
2 O.S.No. 984/2013
Aged about 40 years,
R/at No. 152/32, 5th Main,
8th A Cross, Ganesha Block,
Mahalkshmipura,
Bengaluru.
D1 and D2 by N. Shamsunder Kamble,
Advcoate
D3 by J. M Rajanna Setty, Advocate.
Date of institution of suit 02.02.2013
Nature of the suit Permanent Injunction
Date of commencement of
28.03.2016
recording of evidence
Date on which Judgment
17.04.2018
was pronounced
Total duration Years Months Days
05 02 15
JUDGMENT
1. This is a suit for Permanent Injunction.
2. The case of the plaintiff is that, the plaintiff and defendants are the children of Subramanya and Smt. Rani. The plaintiff is eldest daughter and her younger brothers are defendants' No. 3 to 5. The father Subramanya is said to be retired employee of Mysuru Electrical Industries Ltd. Yashwanthpura who had acquired title over the house 3 O.S.No. 984/2013 property bearing No. 120, 5th Cross, Srirampuram, Bengaluru by virtue of family partition between her and her brothers. That is said to be the ancestral property wherein the parents and defendants' No. 1 and 2 are said to be residing therein.
3. The father is said to have purchased the suit property by investing his money and thereby, it is his self acquired property. One more site bearing No. 665, 7th cross, MEI layout was said to be freely allotted to the father by Mysuru Electrical Industries Limited (herein after referred as MEIL). That property thereby is said to be also the self acquired property of Subramanya wherein he is said to have constructed 3 floors building.
4. The father is said to have performed the marriage of all his children and the plaintiff's marriage was performed on 5.2.1990 in Bengaluru. The husband of the plaintiff is said to be earning by doing Welding Work. Hence, they were said to be not able to maintain the children and on account of finanancial difficulty, the father of the plaintiff in 1995 is 4 O.S.No. 984/2013 said to have orally donated half portion of the house which a suit property as Arishina-Kumkuma. Over gifted property, three houses were said to be constructed by Subramanya and plaintiff with her plaintiff is said to be residing in one of such house. The other two houses are said to be rented out to the tenants where upon the father is said to be utilizing the rent amount for his livelihood. The father is said to have assured to make equal partition in respect of properties among his four children. All the revenue documents are said to have been mutated in the name of their father.
5. The defendants are said to have no exclusive right or title over the suit schedule property, but, are said to have been interfering with the peaceful possession and enjoyment of the property by the plaintiff by threatening them vacate the suit property. The defendants are said to have been attempting to illegally dispossess the plaintiff from the suit schedule property. In this regard, they are said to have damaged the house of plaintiff by making a hole on the roof, disconnecting water taps, obstructing bathroom 5 O.S.No. 984/2013 pipelines and sanitation. Even though, the plaintiff had approached the jurisdictional police, the police is said to have refused to register the case. The children of the plaintiff are said to be pursuing the studies and except the suit property, said to no other property for the residence. Hence, has filed the above suit.
6. The written statement of defendants' No.1 and 2 has been taken as not filed vide order dated 20.9.2013. Defendant no.3 in the written statement has contended that, the plaintiff not to have local-standi to institute the suit. The relationship, the father to have retired from MEIL, acquisition of the property by the father in the family partition, performing the marriage of the children by the father are all admitted facts.
The father M. Subramanya was said to be only the GPA holder of H.V Rangappa in regard to the suit property whereby the father is said to have sold the suit property in favour of the defendant No.3. The site property bearing 6 O.S.No. 984/2013 No. 665 MEIL layout is said to be the self acquired property of Subramanya.
It was the 3rd defendant who is said to have looked after the day to day necessities of the plaintiff and her children when the husband is said to have neglected to maintain them. The husband infact is said to send the plaintiff and her children to her parental home. After a room was provided by the parents for the residence of the plaintiff and her children, the husband is said to have joined the plaintiff by selling all his immovable properties. The plaintiff and her family were said to be permitted to reside for her welfare only. Now, the 3rd defendant is said to be owner of the suit property and had requested the plaintiff to vacate the premises and to find out alternative premises nearby the suit properties. The plaintiff and her husband are said to have refused to vacate the premises and when the same was questioned, the plaintiff and her husband are said to have assaulted the 3rd defendant whereby the police complaint was said to be lodged on 19.11.2011. All the 7 O.S.No. 984/2013 revenue records are said to be transferred to the name of the 3rd defendant.
The plaintiff is said to be not at all the owner of schedule property, the 3rd defendant is said to be the absolute owner of the schedule property by virtue of the sale deed dated 11.10.2012 and all the revenue documents are said to be mutated to the name of the 3rd defendant. Denying all the averments of the plaint specifically, has sought for the dismissal of the suit.
7. The Court had framed the following:-
ISSUES
1. Whether the plaintiff proves that plaintiff is in lawful possession of the suit schedule property as on the date of suit?
2. Whether the plaintiff proves that defendants are obstructing the plaintiff's peaceful possession and enjoyment of suit schedule property?
3. Whether the plaintiff is entitled to Permanent Injunction as sought for in this suit?
4. To what Order or Decree?8 O.S.No. 984/2013
To prove the case, the plaintiff has got examined the plaintiff has PW.1 got marked Ex.P.1 to Ex.P.11. The 3rd defendant has got examined himself as DW.1 got marked Ex.D1 to D23.
8. Heard the arguments and written arguments has been filed by the counsel for the 3rd defendant.
9. The findings on the above Issues are as under:
Issue No.1 : In the 'Affirmative' Issue No.2 : In the 'Affirmative' Issue No.3 : In the 'Affirmative' Issue Mo.4 : As per final order for the following:
REASONS
10. Issue No.1:-
At the outset, it is necessary to note the description of suit schedule property which is as follows:-
SCHEDULE All that the piece and parcel of the suit schedule house property bearing No. 152/32, 5th Main, 8th 'A' Cross, Ganesha Block, Mahalakshmipura, Bengaluru measuring East to West 9 O.S.No. 984/2013 50 feet and North to South 15 feet and which is bounded as follows:-
East by : Private Property,
West by : Road,
North by : Half portion of the same property
Number and
South by : Site No. 153.
The relationship between the parties is that, the plaintiff and defendants are the children of Subramanya and Smt. Rani. To prove the case of possession claimed by the plaintiff, the electricity and water bills have been produced which are marked as Ex.P.1 to P.11.
11. It is to be noted that, PW.1 in the oral evidence has admitted that, the suit property to be the self acquired property of Subramanya who had constructed a building consisting of three floors and that the plaintiff with the family to be residing in one of the portion.
PW.1 has admitted as follows:-
"It is true that, my father has sold the suit property to the defendant no.3 in the year 2012".10 O.S.No. 984/2013
The father is said to have passed away on 8.3.2013. This admitted fact shows that, it is the 3rd defendant in favour of whom the sale deed has been executed by the father pertaining to the suit property being his self acquired property.
12. On account of the dispute between the parties, there has been criminal case filed bearing SC. No. 1033/2016 by the 3rd defendant against the plaintiff for vacating the portion of the suit property locked by the plaintiff. PW.1 has further stated that, two portions of the suit property to be vacant.
Inspite of electricity and water bills being produced, PW.1 herself has stated that, the 3rd defendant to have got the electricity bill and water bill changed to his name. She has identified the sale deed in the name of herself, her husband executed by K. Gururaj it is marked as Ex.D.1 dated 6.9.2003 and it is pertaining to the property bearing No. 42/5 situated at Laggere Village. Thereby, it is not the schedule property. PW.1 has also admitted that, the father during his life time to allotted the properties to the 11 O.S.No. 984/2013 defendant by stating as follows:- "the property at Mahalakshmipuram was purchased by my father and it is in the name my brother Shakar. It is true that, my father during his life time have allotted the above said properties to defendants". PW.1 is said to be in possession of the property measuring East-West 60 feet and North-South 12.5 feet and this is a admitted fact. The plaintiff has also admitted that Shekar to have filed OS. 521/2017 against her for the possession of 16 X 12.5 feet house.
13. The DW.1 in the oral evidence has produced certified copy of the sale deed dated 11.10.2012 executed in his favour by the GPA holder M. Subramanya of H.V Rangappa and Krishnamurthy. This sale is admitted fact of PW.1 which is above noted and it pertains to the suit schedule property. Specifically it is described as per Ex.D.2 as follows:-
SCHEDULE All the piece and parcel of property bearing New Municipal No. 152/32, (One Hundred Fifty Two Sub Thirty Two) Old PID No. 12-18-32 New PID No. 068-W0043-24, (Previously Property No. 152, Plot No. 1/48, Situated at Jarakabande Kaval Village, Yelahanka Hobli, Bangalore 12 O.S.No. 984/2013 North Taluk) situated at 5th Main, Gangesha Block, Bengaluru, BBMP Ward Old No. 12 New No. 68, and bounded on the :-
East by : Others Property,
West by : Road,
North by : Property No. 151 and
South by : Property No. 153.
Measuring:
East to West 50-0 (Fifty) feet
North to South Road,
Totally 1500 Sq. feet.
The certified copy of the Uddhara patra dated
6.11.2012 is in the name of defendant no.3 as per Ex.D.3.
Holder khata certificated dated 8.11.2012 in the name of defendant no.3 is Ex.D.4. The certified copy of the khata extract is Ex.D.5. Tax paid receipt for the year 2013-14 is Ex.D.6.
Regarding the Criminal case filed, the certified copy of the FIR, mahazar, wound certificate, charge sheet, letter dated 11.2013 addressed to the Commissioner of Police against the plaintiff by the defendant no.3 are marked as Ex.D.7 to D11. The official memorandum Ex.D.12 issued by 13 O.S.No. 984/2013 the BESCOM pertains to the transfer of the installation bearing RR No. N7LG1911, N7LG1912, N7LG1913, N7LG1914 dated 4.3.2013 from M. Subramanya to the name of defendant no.3. Paper publication Ex.D.13 of Prajavani is also produced about public notice of purchase of the property. Electricity bill and water bill are Ex.D.14 and D15. Under Sec. 65B of the Indian Evidence Act, the secondary evidence pertaining to electrical record have been marked as Ex.D.16 to D21 consisting of digital photograph and C.D. The rough sketch of the property is Ex.D.22 and the certified copy of OS. 521/2017 filed by the defendant no.3 against the plaintiff is Ex.D.23 seeking for declaration and possession and it is pertaining to the present suit schedule property.
14. DW.1 in oral evidence has admitted that, the plaintiff to be residing in one portion of the suit schedule property. His father is said to have purchased the property through the GPA. The suit filed by him for ejectment of the plaintiff is said to be dismissed. He is said to have filed the suit as per Ex.D.23. in Ex.D.23, the defendant no.3 has sought for 14 O.S.No. 984/2013 declaration to be the owner of the suit schedule 'A' property and directing the defendant therein who is the plaintiff herein to hand over the vacant possession of the 'B' schedule property to the plaintiff. That 'B' schedule property is the portion of the present suit schedule property measuring East-West 16.67 feet and North-South 12.5 feet with RCC roof.
15. It is admitted fact of PW.1 that, she is in possession of the property measuring East-West 16 feet and North-South 12.5 feet. This admitted fact is to be considered in the light of the evidence of DW.1 who has stated that, the plaintiff to be residing in suit property till date. But, the suit schedule property is described as the extent East-West 50 feet and North-South 15 feet. The boundaries pertaining to the property in possession of PW.1 is not stated in the evidence.
During the course of the hearing, the learned counsel for 3rd defendant has referred the citation reported in AIR 2012, Supreme Court 1727 MARIA MARGARIDA SEQUERIA FERNANDES v/s ERASMO JACK DE SEQUERIA, the 15 O.S.No. 984/2013 benefit of that citation, cannot be availed by the 3rd defendant as there is no contention about the possession as a care taker.
16. The admitted facts before the Court is that, the suit property consists of the three portion and the plaintiff has been residing in one portion. Further that, PW.1 herself has stated that, her father to have sold the suit property to the 3rd defendant in the year 2012. DW.1 himself had admitted that, the plaintiff to be residing in the suit property till date. The fact that, DW.1 has instituted OS No. 521/2017 as per Ex.D.23 seeking for declaration and possession shows that, the defendant is not in possession of the property resided by the plaintiff. Of course, the portion resided by the present plaintiff is the Schedule 'B' property in Ex.D.23. Hence, it manse that, already the defendant has taken recourse pertaining to the property in possession of the plaintiff.
In view of the admitted facts as noted above, it means that the plaintiff is in possession of the portion in the suit schedule property. At the same time, DW.1 himself has 16 O.S.No. 984/2013 stated that, the plaintiff to be residing in one portion of the suit property. It is only by due process of law that, the person who is in unlawful possession of the property is to be erected. He has further stated in the examination in chief affidavit at Para.11 as follows:-
I further submit that in view of the dismissal of the Small Causes suit, having been advised to go for the "comprehensive relief seeking for possession and notwithstanding the ejectment suit, I am being a lawful owner of the property and has allowed the plaintiff being the sister to stay in one portion of the Schedule Property, which is more-fully described in the Schedule hereunder. The plaintiff has no manner of right, title and interest or lawful possession over the schedule property and the plaintiff is not staying in a portion of the schedule property and she had kept the premises under 'lock and key' with an oblique motive to exploit me for extra ordinary consideration and of which, plaintiff is not entitled to".
Therefore, the possession of the plaintiff is limited in nature and that has to be protected by way of Permanent Injunction.
On account of the admitted facts discussed above, the 1st Issue is answered in 'Affirmative'.
17. Issue No.2 :-
17 O.S.No. 984/2013
It is an admitted fact that the plaintiff is in possession of the suit property. There has been also criminal cases between the parties in view of the property dispute. Therefore, it means that, the possession claimed by the plaintiff and admitted by the defendant, that possession is obstructed on account of the contention of the defendant that, the plaintiff is required to vacate the premises. In this regard, already the defendant has filed comprehensive suit which is noted above as per Ex.D.23. Till the law takes its action, the portion in possession of plaintiff cannot be obstructed. Hence, this issue is answered in 'Affirmative'.
18. Issue No.3:
Due to the admitted facts of possession noted above, the plaintiff is entitled for the relief of Permanent Injunction. Moreover, the parties are clear as to the portion which is claimed by the plaintiff and which is admitted by the defendant. Such being the case, this issue is answered in 'Affirmative'.
19. Issue No.4:-
Due to above findings, the following: 18 O.S.No. 984/2013
ORDER The suit of the plaintiff is decreed as follows:
The defendant or his agents are hereby restrained by an order of Permanent Injunction from interfering with peaceful possession and enjoyment of the suit schedule property.
In the circumstances parties to bear their own costs.
Draw decree accordingly.
(Dictated to the Typist and on line, transcribed and computerized print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 17th day of April 2018.) (VELA.D.K.) XXII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 Smt. Selvi. S List of documents exhibited for the plaintiff:
Ex.P1 to Electricity bills P6 Ex.P7 to Water bill P11 19 O.S.No. 984/2013 List of witnesses examined and documents exhibited for defendants:
DW.1: Shankar Ex.D1 Certified copy of the sale deed dated 06.09.2003.
Ex.D2 Certified copy of the sale deed dated 11.10.2012.
Ex.D3 Certified copy of the Uttara Pathra Ex.D4 Holder Khatha Certificates and D5 Ex.D6 Tax paid receipt for the year 2013-14 Ex.D7 Certified copy of the FIR Ex.D8 Certified copy of the complaint Ex.D9 Wound certificate issues by the Apollo Hospital Ex.D10 Charge Sheet Ex.D11 Certified copy of the Complaint to the Commissioner of the Police dated 11.02.2013 Ex.D12 Official Memorandum issued by the BESCOM Ex.D13 Prajavani News Paper dated 30.12.2016 Ex.D14 One Electricity Bill and payment receipt and D15 Ex.D16 Sec. 65B Indian Evidence Act certificate Ex.D17 to Four photographs and one C.D D21 Ex.D22 Certified copy of the rough sketch Ex.D23 Certified copy of the plaint in OS No. 521/2017.
(VELA.D.K.) XXII Addl. City Civil & Sessions Judge, Bengaluru.
20 O.S.No. 984/201321 O.S.No. 984/2013 Judgment passed and pronounced in Open Court.
(vide separate Judgment).
Operative portion thereof reads as under:
The suit of the plaintiff is decreed as follows:
The defendants or their agents are hereby restrained by an order of Permanent Injunction from interfering with peaceful possession and enjoyment of the suit schedule property.
In the circumstances parties to bear their own costs.
Draw decree accordingly.
XXII A.C.C. & S.J., Bengaluru.22 O.S.No. 984/2013 23 O.S.No. 984/2013
Judgment passed and pronounced in Open Court.
(vide separate Judgment). Operative portion thereof reads as under:
ORDER The suit of the plaintiff is decreed as follows:
The defendant or his agents are hereby restrained by an order of
Permanent Injunction from interfering with peaceful possession and enjoyment of the suit schedule property.
In the circumstances parties to bear their own costs.
Draw decree accordingly.
XXII A.C.C. & S.J., Bengaluru.