Bangalore District Court
Sri. Srihari S/O T. Anantha Ramaiah vs Unknown on 6 February, 2017
THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY
Dated on this the 6th day of February 2017
-: Present :-
Smt. Hemavahi, BBM, LL.B,
XXXIX Additional City Civil & Judge,
Bangalore City.
ORIGINAL SUIT NO. 8043/2008
Plaintiff:-
Sri. Srihari S/o T. Anantha Ramaiah, 45
years, No.9, Basavanapura Village, K.R.
Puram Hobli, Bengaluru.
[By Sri. R.S., Advocate]
/ Versus /
Defendants :-
1. Sri.K.M. Rajendran S/o M. Krishna
Murthy, 48 years, R/at No.60,
Yellenahalli Village, Begur hobli,
Bengaluru South Taluk.
[By Sri. R.D.S., Advocate]
2. Smt.Vedavathi D/o.Shambaiah, 22
years, R/at No.1625, E Block, 2nd
Main, AECS Layout, Kundarahalli Post,
Bengaluru-37.
[By Sri.M.A.K, Advocate ]
Date of Institution of the : 05.12.2008
suit
Nature of suit : Suit for permanent
injunction
Date of commencement of : 18.06.2011
evidence
Date on which the judgment : 06.02.2017
is pronounced
Years Months Days
Duration taken for disposal :
08 01 29
***
JUDGMENT
This is a suit initially filed by the plaintiff against the defendants for the relief of permanent injunction to restrain the defendants from interfering with his peaceful possession and enjoyment over the suit property over the suit property and such other reliefs with costs. During the pendency of the suit the plaintiff got amended the plaint and sought for direction to the defendants to deliver the vacant possession of the suit 'B' schedule property to the plaintiff.
2. The brief facts of the plaintiff's case are that he is the owner in possession and enjoyment of the suit schedule property having purchased the same under registered Sale Deed dated 8.8.1988 and property in Sy.No.18/10 of Basavanapura Village, K.R.Puram Hobli, Bangalore South Taluk originally belonged to C.Panamma and others and they have executed GPA on 9.5.1988 in favour of one Selvaraj and exercising the said power, said attorney C.P.Selvaraj has got converted the said land into non-agricultural purposes and formed the layout in Sy.No.18 and 19 including the land belonging to the plaintiff's vendor. The suit schedule property now included in the limit of BBMP, BBMP has assessed the schedule property to the tax and plaintiff has been paying tax. But, BBMP has not been registering in the khatha. The plaintiff has been in peaceful possession and enjoyment same as an absolute owner. The defendants are the strangers and they have no right, title or interest over the suit property. In spite of that on 30.11.2010 they along with their henchmen tried to trespass into the suit property. When he approached the jurisdictional police, they have not taken any action and directed him to approach the Civil Court. Hence, filed the suit.
3. During the pendency of the suit, the plaintiff amended the plaint by inserting para 8(a), alleging that there is a construction of 5 Sq. on South end of the schedule which is the 'B' schedule property and remaining area is vacant. There is nobody residing in the 'B' schedule property. Even the defendants are also not residing there. The defendants have managed to obtain electricity connection to the suit property. Hence, he sought for possession of the 'B' schedule property as an abandoned caution.
4. The defendant No.1 filed written statement denying the averments made in the plaint, and contended that one J.Mariyappa, Devaraj, J.Rayappa along with R. Anthony Raj and R. Lurth Swamy sons of J.Rayappa with daughters of Late C.Papamma, namely C. Salina Mery @ Lilli, Smt. Sangay Mary @ Shanthi and three other sons of Late Smt.Papamma, namely C.Anthony Nivas, Bernad @ Babu and C.Chinnappa @ Prabhakar executed sale deed on 18.1.2005 which was registered on 20.1.2005 in respect of 21 guntas in Sy.No.18/9, 1 acre 1 guntas in Sy.No. 18/10, 24 guntas in Sy.No. 19/6 in favour of this defendant and he was put into the possession of said property. Thereafter, khatha changed in his name and one Chowramma had purchased the said land and was the owner as on 9.11.1972 and she died on 1974 and her legal heirs Smt.Papamma, Mariyappa, Smt.Theresamma and J.Rayappa inherited the property and became owners since 1986-87 and no conversion of these lands has taken place, no layouts are formed, lands are still agricultural land, and suit schedule property is not in existence and C.P.Selvaraj who was influential person colluded with others, trespassed into the property of this defendant on 25.9.2006. Hence, he filed the suit in O.S.No.9087/2006 for declaration and injunction and as no ex-parte injunction was granted, taking advantages of the same, said Selvaraj along with this plaintiff and others has trespassed into the substantial portion of this defendant's property and some of them have put up construction and dispossessed this defendant during the pendency of the suit. Plaintiff is neither owner nor in possession of the suit property. Hence, prayed to dismiss the suit with costs.
5. Defendant No.2 filed written statement denying the averments made in the plaint and contended that Sy.No.18/10 has not been converted for residential purposes by any order of Deputy Commissioner and the conversion order stated in the sale deed and as claimed by the plaintiff is bogus order, created to grab the land and the endorsement issued by the Tahasildar, Bengaluru East Taluk dated 21.3.2008 confirms that no such order has been passed and the alleged power of attorney is a forged document and the averments in the plaint that the property came to be converted on 18.7.1972 itself falsifies as per averments that alleged GPA was executed on 9.5.1988 and the plaintiff has suppressed the real facts and filed this suit, though there is no cause of action. Further contended that she is the owner of site No.12, measuring 50 x 30 ft bearing khatha No.103 of Basavanapura Village, K.R.Puram hobli, Bengaluru South Taluk, having purchased under registered Sale Deed dated 12.4.2006 from the first defendant and she was put into possession of the said land, khatha changed in her name by CMC, she is in possession of the said site and constructed a small house with single bedroom and obtained electricity and the plaintiff is trying to knock off the property of this defendant. Hence, prayed to dismiss the suit with exemplary costs of Rs.10,000/-.
6. The defendant No.2 also filed additional written statement for the amended portion of the plaint, contending that by inserting para 8(a), the plaintiff admitted that there is a house constructed by this defendant and she had obtained electricity to the said house and she is in possession of the entire property on which the plaintiff is claiming right and the plaintiff has created a story to knock the property of this plaintiff.
7. On the basis of the pleadings of the parties, following issues and additional issues have been framed by this Court :
ISSUES (1) Whether the plaintiff proves that he is in lawful possession of plaint schedule property as contended ?
(2) Whether the plaintiff prove that the
defendants are interfering with the
plaintiff's possession and enjoyment
over the plaint schedule property, as
alleged ?
(3) Whether the plaintiff is entitled for the relief of permanent injunction as prayed?
(4) What order or decree ?
ADDITIONAL ISSUES
(1) Whether the plaintiff proves that he is
entitled for the possession of 'B'
schedule property from the
defendants?
(2) Is the suit not maintainable as
contended by the defendants in their
written statement ?
8. Plaintiff examined him as P.W.1 and got marked 11 documents as per Exs.P.1 to P.11. The defendant examined K.M.Rajendra as D.W.1 and got marked 16 documents as per Exs.D.1 to D.16. But subsequently he did not turn up for cross-examination. Hence, his evidence has been expunged as per order dated 30.7.2014. The second defendant examined her father as well as general power of attorney holder S.Shambaiah as D.W.2, got marked Ex.D.17 to D.24. She also examined one Lokesh as D.W.3.
9. Heard both sides. Written arguments filed by the learned advocate for plaintiff.
10. My findings on the above issues are as follows:
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Addl.Issue No.1 : In the negative.
Addl.Issue No.2 : In the affirmative.
Issue No.4 : As per final order, for the
following:
REASONS
11. Issue No.1 and Additional Issue No.1 :- As these issues are interlinked, to avoid repletion of facts and evidence, they are taken up together for discussion.
12. Herein, the fact that Sy.No.18/10 of Basavanapura Village, K.R.Puram Hobli, Bengaluru South Taluk is originally belonged to C.Papamma and others is an admitted fact. It is the case of the plaintiff that said C.Papamma and others have executed GPA on 9.5.1988 in favour of one C.P.Selvaraj and thereafter said Selvaraj got converted the land into non-agricultural purpose and formed layout in Sy.No.18 and 19 including the land belonging to C.Papamma and others and under registered Sale Deed dated 8.8.1988 this plaintiff purchased the property from the general power of attorney holder of C.Papamma and others and he has been in possession of the property as an absolute owner since the date of purchase.
13. Per contra, it is the contention of the defendant No.1 that Sy.No. 18/10 along with the other properties originally belonged to one Chowramma having purchased the same on 9.11.1972 and she died in the year 1974 and her legal heirs Papamma, Mariyappa, Devaraj, Rayappa, Theresamma along with their children executed registered sale deed on 20.1.2005 in respect of 1 acre 1 guntas in Sy.No.18/10 and 21 guntas in Sy.No. 18/9 and 24 guntas in Sy.No. 19/6 and khatha changed in his name and he has been in possession and enjoyment of the said property and second defendant contended that she purchased site No.12 measuring 50 x 30 ft, khatha No.103 of Basavanapura Village, K.R.Puram Hobli, Bengaluru South Taluk, under registered Sale Deed dated 12.4.2006 from the first defendant and she had put up small house, obtained electricity connection and she has been in possession and enjoyment of the same.
14. Plaintiff has produced original Sale Deed dated 8.8.1988 which reveals that one C.P.Selvaraj as a general power of attorney holder of Papamma, Mariyappa, Theresamma, R.Jayappa, executed sale deed in favour of this plaintiff and the aforesaid persons have executed GPA in favour of C.P.Selvaraj on 9.5.1988 and Sy.No. 18/10 of Basavanapura Village, K.R.Puram Hobli, Bengaluru South Taluk originally belonged to Chowramma under Sale Deed dated 17.12.1955 and 9.11.1972 and the vendors have converted the whole property as per the permission of the Deputy Commissioner dated 28.5.1972 bearing N o.IB/DIS/ALN/SR/5855 and obtained Conversion Certificate bearing No.ALN/SR/2024/72/73 dated 18.7.1972 issued by the Tahasildar, Bengaluru South Taluk. This recital falsifies the averments in the plaint that after GPA dated 9.5.1988, C.P.Selvaraj got converted the land for residential purposes.
15. Ex.P.2 is zerox copy of the Conversion Certificate bearing No.ALN/SR/2024/72/73 dated 18.7.1972 issued by the Tahasildar, Bengaluru South Taluk reveal that the Tahasildar had accorded permission to convert total 8 acres 7 guntas of Sy.No.18/10, 19/6, 18/8, 19/5, 18/9 and 19/4 of Basavanapura Village, K.R.Puram Hobli, Bengaluru South Taluk for non-agricultural purpose in favour of C.Papamma, J.Mariyappa, Theresamma, J.Rayappa, children of Chowramma. Ex.P.5 is the certified copy of the GPA dated 9.5.1988 executed by C.Papamma, J.Mariyappa, Theresamma, J.Rayappa, children of Chowramma and one Pathiraj in favour of C.P.Selvaraj where it is stated that on 17.2.1955 Chowramma purchased the property and after her death, they became the absolute owners. In the schedule property bearing No.18/7, 18/8 to 18/10 and 19/4 to 19/6 of Basavanapura Village totally measuring 9 acre 14 guntas is shown. Nowhere in this document it is mentioned whether this property is agricultural land or converted for non- agricultural purpose. When as per Ex.P.2, these properties were converted on 18.7.1972, it could not be a agricultural land on 9.5.1988. As discussed above in Ex.P.1, it is stated that Chowramma acquired the property under registered Sale Deed dated 9.11.1972, if that is so, how her legal heirs could have got converted the property on 19.7.1972 ? There is no explanation on the part of the plaintiff.
16. Defendant No.2 produced Ex.D.19 certified copy of the sale deed dated 12.4.2006 executed by first defendant in her favour. Ex.D. 20 - Encumbrance certificate. Ex.D.21
- Property Tax Register extract in respect of site No.12 measuring 50 x 30 ft of Basavanapura Village. Defendant No.1 though marked Exs.D.1 to D.14, as he did not subject him for cross-examination and his evidence has been expunged, no reliance can be placed on these documents.
17. P.W.1 in his cross-examination deposed that original of Ex.P.2 is in his custody, but it is not explained why he withhold the original of Ex.P.2. Even if the original of the said document is produced, it no way help him, because the contents of Ex.P.2 itself falsifies his averments in the plaint that C.P.Selvaraj got converted the land. Further, when original owner of Sy.No.18/10 had not acquired right as on 18.7.1972 even if there is a order as per Ex.P.2, it is obtained without title over the property. When as on the date of Ex.P.2 original owner had no right, this itself is sufficient to suspect the genuineness of this document. Further, it is very pertinent to note that nowhere in the plaint schedule he stated that there exists a house, but during the pendency of the suit he stated that there is house of 5 Sq.Ft. on the southern side of suit schedule, but it is not stated who constructed it. He deposed that he has not taken sanctioned plan to construct the building over the suit schedule site and also not produced any document that he did construction. This itself is sufficient to say that he has not constructed the alleged 5 Sq.Ft. building. He further deposed that one Vedavathi is in possession of 'A' schedule property. But, he nowhere stated either in the plaint or in the chief affidavit since when second defendant is in possession of the schedule property. In spite of that, in the plaint he stated that 'B' schedule property which is the constructed portion, nobody is residing and even the defendant is not residing. He further deposed that he does not remember when he was dispossessed from the suit property. This itself is sufficient to say that he was not in possession of the property. The plaintiff has produced Ex.P.10 which is the certified copy of the Judgment and Decree in O.S.No. 7973/2008 which reveals that one Sudha filed suit against defendants herein for the relief of permanent injunction and it was decreed and in Ex.P.11 which is the Decree of said suit reveals that Site No.9 is situated towards the south of Site No.10, which is the subject matter of the said suit. As deposed by the plaintiff and as per the description of the plaintiff shown in the plaint in Ex.P.10 and P.11, the plaintiff in that suit is the sister of plaintiff herein, but this document no way help the plaintiff to say that he is in possession of the suit property. It is the plaintiff who has to prove independently that he is in possession of the suit property.
18. P.W.1 further deposed that he does not know when the defendant put up construction on the 'B' schedule property. So, this also falsifies his case that nobody is residing in the 'B' schedule property. The defendant No.2 produced electricity connection order dated 6.8.2008, which is marked as Ex.D.22. The plaintiff himself admitted that the defendant obtained electricity connection. It proves that defendant is in possession of the property.
19. D.W.2 in his cross-examination deposed that when defendant No.1 purchased the property it was an agricultural land, he did not convert it, he formed sites in agricultural land and out of that, his daughter purchased one site. At that time, agricultural operation was not going on, but roads were formed, few houses were under construction and after purchase first defendant formed the road. He further deposed that he has said layout plan, but he does not know whether said layout plan was approved or not and when his daughter purchased the property, it was in the limit of ITI grampanchayat and it was ITI notified area and further deposed that, prior to 2005, in the property purchased by first defendant, there was road and few houses constructed and it was occupied. If this evidence is considered, it can be said that without conversion, first defendant had formed the layout and carved the sites and even prior to sale deed as per Ex.D.1 in favour of first defendant, there was a road and few houses in the property purchased by first defendant and it was occupied by the respective owners.
20. D.W.2 further deposed that when they purchased the site, there was small shed measuring 10 x 15 ft, they have demolished said shed and he does not know whether the distance of said shed is shown in the sale deed. On perusal of the sale deed as per Ex.D.19 dated 12.4.2006, there is no recital about the existence of the shed in the property purchased by the second defendant. He further deposed that first defendant filed a suit claiming Sy.No.18/10 as agricultural land and he also sought for declaration of his title over the said survey number. He admitted that except the constructed area, remaining area is vacant. He also deposed that towards the North of the site No.12 there is a road. He does not know that site No.10 is situated towards North of Site No.9 and towards East and South of the property there is a road and Site No.9 measures East to West 50 feet and North to South 40 feet. He denied that they have constructed a house in the property belonging to the plaintiff and after filing of the suit, they have taken possession of the suit schedule property by illegal means and the house where they are residing is situated in Site No.9 belonging to the plaintiff and there is no Site No.12 and he does not know that plaintiff is the owner of Site No.12 and since the date of purchase, plaintiff is in possession of the property. He admitted that Exs.P.6 to 9 relates to the suit property and the compound found in Ex.P.6 is the only compound and except the area where second defendant is residing, remaining area is vacant area and he does not know that one Sudha filed suit in O.S.No.7973/2008 against the defendant and his daughter has not challenged the said Judgment and Decree. Ofcourse, on going through the this evidence, there is no doubt to show that the property found in Exs.P.6 to P.9 are the suit properties. But until and unless the plaintiff proves that Papamma and others have sold the said property through Selvaraj and it was confronted by C.P.Selvaraj after the alleged GPA as per Ex.P.5 was executed in his favour and Ex.P.2 is the said Conversion Order and thereafter, his vendor had formed the layout and carved sites mentioned in the plaint schedule. The aforesaid evidence of D.W.1 that Exs.P.6 to P.9 relate to the suit property, no way help the plaintiff to prove that he is the owner of the suit property. Further, the plaintiff has not sought for the relief of declaration of his title even after amendment. He has only fought for the relief of possession. This suit is not filed based on his earlier possession, but it is filed based on his alleged ownership and possession over the suit property.
21. Ofcourse, D.W.3 in his cross-examination deposed that the suit property is a corner site and there is a compound wall in and around the suit property and he had seen the suit property. This evidence does not help the plaintiff to say that he is in the owner of the suit property.
22. The plaintiff stated that C.P.Selvaraj formed the residential layout, but no document has been produced about formation of the layout. Except sale deed there is no document to show that the property of the plaintiff is situated in Sy.No. 18/10 belonged to C.Papamma and others. The plaintiff in his cross-examination deposed that, his site is corner site, but to show that except Ex.P.1, he has not produced any document. He further admitted that there are two conversion order referred in Ex.P.1, one is dated 28.7.1972 and another one is dated 18.7.1972. But as discussed above, these are all prior to the acquisition of the property by Chowramma. Further, as per Section 95 of the Karnataka Land Revenue Act only Deputy Commissioner is empowered to accord permission for conversion of land, Tahasildar has no power. In view of this also, the authenticity of Ex.P.2 is doubtful.
23. When the plaintiff himself admitted the defendant No.2 is in possession of the 'A' schedule property, he deposed that he do not remember when he was dispossessed from the suit property, this itself is sufficient to say that he was not in possession and enjoyment of the suit property as on the date of the suit.
24. When he has not stated in the plaint that there exists a house in the 'A' schedule property and in the cross- examination he deposed that he does not know when defendant No.2 constructed building on the 'B' schedule property and there is no material on his part to show that the said building is situated in his property, I opine that, unless and until the plaintiff prove that 'B' schedule property is the portion of 'A' schedule property, he is not entitled for the possession of the suit property. Further, when the plaintiff has deposed that Vedavathi who is in possession of the suit schedule property and he has stated that he does not know when he was dispossessed and when the defendant No.2 constructed the building, it is sufficient to say even as on the date of suit the plaintiff was not in lawful possession and enjoyment of the 'A' schedule property. But, he has not sought for the possession of the 'A' schedule property. As already disussed above, this sit is not based on the earlier possession of the suit property, but based on the alleged ownership and possession of the suit property. Therefore, until and unless the plaintiff proves his ownership over the suit property, he is not entitled for the relief of possession. In view of that, I answer Issue No.1 and Additional Issue No.1 in the negative.
25. Issue No.2 : - When the plaintiff has failed to prove Issues No.1, this issue does not survive for consideration. Hence, I answer this issue in the negative.
26. Additional Issue No.2 : - Defendant No.2 in his written statement contended that without seeking the relief of declaration of title, the suit for the relief of possession is not maintainable. As already discussed in additional issue No.1, the suit of the plaintiff for the recovery of possession by way of amended relief is not based on his earlier possession, but it is based on his alleged ownership and possession over the suit property. Hence, I hold that the suit for the relief of possession of 'B' schedule property is not maintainable. Hence, I answer this issue in the affirmative.
27. Issue No.3 : - In view of my findings to Issue No.1 and 2 and Additional Issue Nos. 1 and 2, I hold that the plaintiff is not entitled for the relief of permanent injunction as prayed for in the suit. Hence, I answer this point in the negative.
28. Issue No.4:- In view of the above discussions, I proceed to pass the following:
ORDER Suit filed by the plaintiff against the defendants is hereby dismissed. Considering the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, script corrected, signed and then pronounced by me in the open court, this the 6th day of February, 2017.) (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Srihari
2. List of documents exhibited for plaintiffs:
Ex.P.1 : Sale Deed dated 8.8.1988 Exs.P.2 : Conversion Certificate Exs.P.3 : Tax paid Receipt. Exs.P.4 : Tax paid receipt. Exs.P.5 : GPA Ex.P.6 to 9 : 4 Photographs
Ex.P.10 & 11 : Certified Copies of Judgment & Decree in O.S.No.7973/08
3. List of witnesses examined for defendants:
D.W.1 : K.M.Rajendra
D.W.2 : S. Shambaiah
D.W.3 : Lokesh
4. List of documents exhibited for defendants:
Ex.D.1 : C/c of Sale Deed dated 18.1.2005. Ex.D.2 : C/c of Order Sheet in C.C.No.22455/11.
Ex.D.3 : Death Certificate.
Ex.D.4 & 5 : 2 RTCs.
Ex.D.6 & 7 : Copy of Mutations
Ex.D.8 : Order passed in R.A. No.169/2007-08
Ex.D.9 : Endorsement by Tahasildar dated
17.2.2011.
Ex.D.10 : Endorsement dated 5.1.2011 by D.C.
Ex.D.11 : Proceedings on Leave Petition
Ex.D.12 : Order Sheet in C.C.No.5/10
Ex.D.13 : Copy of application U/o.12 R.8 C.P.C. in
O.S.No.952/09.
Ex.D.14 : Objections along with affidavit of
defendants No.4 to 11 in O.S.No.952/09.
Ex.D.15,16 : Endorsement by BBMP dated 11.4.2011 & 18.10.10.
Ex.D. 17 : Special power of attorney of defendant No.2.
Ex.D.18 : RTC in respect of Sy.No.18/10
Ex.D.19 : C/c of Sale Deed dated 12.4.06
Ex.D.20 : Form No.15
Ex.D.21 : Form No.3
Ex.D.22 : Copy of official memorandum issued by
A.E.
Ex.D.23 : Rental agreement dated 15.7.2008 Ex.D.24 : C/c of Plaint in O.S.No.800/12.
(Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** Md/-