Bangalore District Court
V.Chandra vs Anjinappa on 11 September, 2018
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 11th day of September 2018
O.S.No.1059/2015
PLAINTIFF : V.Chandra
Aged about 39 years
S/o G.Venkateshappa
R/at No.15, Maheshwari Nagar
Whitefield Road
Mahadevapura Post
Bangalore-560 048.
(By Sri.A.G.G., Advocate)
V/s.
DEFENDANT : Anjinappa
Aged about 37 years
S/o Late Thimmaiah
R/at Maheshwari Nagar
Mahadevapura
Mahadevapura Post
Bangalore-560 048
(By Sri.K.P., Advocate)
Date of Institution of the Suit: 02.02.2015
Nature of the suit
(Suit on Pronote, suit for Permanent injunction
declaration & possession, suit
2 OS No.1059/2015
for injunction)
Date of commencement of 01.03.2016
recording of evidence:
Date on which the Judgment 11.09.2018
was pronounced:
Total Duration: Year/s Month/s Day/s
03 07 09
JUDGMENT
The plaintiff filed this suit for permanent injunction restraining the defendant or representatives or power of attorney holders or agents, servants, henchmen or any persons and anybody claiming on behalf of him from interfering with peaceful possession and enjoyment of the suit schedule property by him and to pass such other reliefs.
2. The suit schedule property as described in the plaint is as under:-
SCHEDULE All that piece and parcel of property bearing northern portion of vacant site No.63, Khatha No.63/58, property No.58 presently BBMP Form-B property register extract 3 OS No.1059/2015 Sl.No.1132 situated at Maheshwari Nagar, Mahadevapura, K.R.Puram Hobli, Bangalore East Taluk presently comes under BBMP measuring east to west: 30 feet and north to south: 20 feet totally measuring 600 sq.ft. and bounded on:
East by : Private property
West by : 25 feet Road
North by : Site No.64
South by : Remaining southern portion of
site No.63
3. The plaint averments in brief is as under:
The plaintiff is the absolute owner of the suit schedule property and he has purchased the same under registered sale deed dated 4.9.2014 and since then he has been in possession and enjoyment of the same. BBMP khatha of the schedule property stands in the name of plaintiff and he has paid tax to the concerned authority for the period from 2008- 09 to 2014-15.
The schedule property originally belongs to one Ramakka W/o Kempanna, who acquired the same vide Form 4 OS No.1059/2015 No.18 of A schedule property by way of registered partition deed dated 02.07.2012.
For the entire suit schedule property the boundaries have been fixed, even though the defendant without manner of right, title and interest over the suit schedule property is trying to interfere with the peaceful possession and enjoyment of the suit schedule property on the basis of some created documents a rectification and sale deed had been created and in the said rectification the measurements have rectified against to principal deed.
On 23.12.2014 the defendant came near the suit schedule property along with some other persons and tried to interfere with the peaceful possession and enjoyment of him. Hence prays to decree the suit.
4. Upon service of summons, the defendant appeared before the court through his counsel and filed written statement contending that the defendant is the absolute owner of southern portion of Site No.64, BBMP 5 OS No.1059/2015 Khatha No.461, Old No.446/64/58, Mahadevapura CMC Holder Khatha Endorsement No.158/2000-01, Old Khatha No.302 Later Mahadevapura CMC Khatha No.446, New No.158 carved out of the erstwhile property No.58 situated at Mahadevapura, K.R.Puram Hobli, Bangalore East Taluk, Bangalore earlier Bangalore South Taluk, now comes under BBMP measuring east to west: 29 feet and north to south:
20.5 feet in all measuring 594.5 out of 1189 sq.ft. having acquired the same from M .Shankar and K.H.Geetha by virtue of sale deed dated 15.12.2014. The said M.Shankar and K.H.Geetha have acquired the schedule property by virtue of sale deed dated 27.11.2011. From the date of purchase the defendant is in uninterrupted peaceful possession and enjoyment of the suit schedule property as absolute owner.
The defendant has got transferred the khatha of the schedule property in his name by concerned BBMP authorities. There is no property in existence as mentioned in plaint schedule, the plaintiff by colluding with Ramakka created some documents on the basis of fabricated documents. The 6 OS No.1059/2015 plaintiff claiming right over the defendant's property to grab the same.
The defendant properties and other properties originally belongs to Smt.Ramakka and Narayanappa @ Muninarayanappa and Krishnappa, they are obtained through registered gift deed dated 5.8.1961. Thereafter, Smt.Ramakka alienated the some properties in favour of different persons.
The said Ramakka alienated and executed the General Power of Attorney and affidavit in favour of R.Tony S/o Rayappan on 24.1.1996 and same day she delivered the possession in respect of defendant's property.
The said Ramakka with respect to the said property executed the registered sale deed in favour of R.Tony S/o Rayappan on 19.10.2000 and at that time the said property is agricultural property. The said Ramakka was prepared a layout plan without any permission. The said Tony paid the tax to the concerned Mahadevapura CMC and obtained the khatha endorsement and possession khatha certificate in his 7 OS No.1059/2015 name on 12.2.2001. With respect to the said property said R.Tony executed the General Power of Attorney and affidavit on 3.10.2009 in favour of S.Manohar S/o Samuel Paul, who is in peaceful possession and enjoyment of the same and paid to the concerned authority. Thereafter, the said S.Manohar executed the sale deed in favour of M.Shankar and K.H.Geetha on 27.11.2011 and thereafter they have obtained BBMP A Khatha in their favour and they are in peaceful possession and enjoyment of the same.
The said M.Shankar and K.H.Geetha both are tried to alienate the said property in favour of prospective purchasers, at that time subsequently came to their knowledge that the measurement of the said property is interchanged by typing mistake in Page No.2 and 4 of schedule of sale deed. The measurement east to west 29 feet and north to south 41 feet is wrongly mentioned as east to west 41 feet and north to south 29 feet and mis-described respectively and this is causing inconvenience to purchaser and there is a need to rectify this mis-description for the purpose of records and 8 OS No.1059/2015 posterity and hence they have obtained Rectification Deed dated 15.12.2014 from their previous vendor i.e. R.Tony's General Power of Attorney holder S.Manohar S/o Samuel Paul. Thereafter, M.Shankar and K.H.Geetha both are alienated and executed the sale deed in favour of himself in respect of southern portion of site No.64 of Mahadevapura. They also executed sale deed in favour of Smt.Rathnamma in respect of northern portion of site No.64 of Mahadevapura. After purchasing the said property, defendant and said Rathnamma are in peaceful possession and enjoyment of their respective properties and paid tax to the concerned BBMP and concerned BBMP surveyor visited the defendant's property and prepared exact sketch mentioning correct measurements and schedules. He is the absolute owner of southern portion of Site No.64 of Mahadevapura.
The said Ramakka alienated the Site No.64 of Mahadevapura, but in the year 2012 the said Smt.Ramakka and her brother Krishnappa partitioned the same through partition deed dated 9.7.2012. Thereafter, Smt.Ramakka 9 OS No.1059/2015 alienated and executed fabricated and forged sale deed dated 4.9.2014 in favour of plaintiff i.e. site No.63 of Mahadevapura, there is no any northern portion of site No.63. Without possession of the property the plaintiff trying to snatch the valuable property of defendant, Smt.Ramakka and her brother Krishnappa both are colluded and created the registered partition deed dated 9.7.2012 and Smt.Ramakka and plaintiff both are created the registered sale deed dated 4.9.2014 to snatch the valuable property of defendant.
The plaintiff is utter strangers to the suit schedule property. Hence, prayed to dismiss the suit.
5. On the basis of the above pleadings of both the parties, the following issues have been framed by my learned predecessor in office:-
1) Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as on the date of the suit?10 OS No.1059/2015
2) Whether the plaintiff further proves that the alleged interference by the defendant?
3) Whether the plaintiff is entitled to the reliefs sought for?
4) What decree or order?
6. The plaintiff in order to prove the case examined himself as PW1 and got marked Ex.P.1 to P.15. The defendant examined himself as DW1 and got marked Ex.D.1 to D.51.
7. Heard the arguments and perused the records of the case.
8. My findings to the above issues are as under:
Issue No.1 : In the negative
Issue No.2 : Does not arise for
consideration
Issue No.3 : In the negative
11 OS No.1059/2015
Issue No.4 : As per the final order,
for the following;
REASONS
9. ISSUE No.1 and 2:- Since these Issues are
interconnected hence they are taken up together common discussion in order to avoid repetition of facts and evidence.
10. The plaintiff filed this suit for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property. The burden of proving the Issue No.1 and 2 is on the plaintiff.
11. The learned Advocate appearing for the plaintiff argued that the plaintiff has purchased the suit schedule property under registered sale deed dated 4.9.2014 from one Ramakka W/o Kempanna, who got the same under the partition deed dated 2.7.2012. The defendant, who has no 12 OS No.1059/2015 manner of right over the suit schedule property got rectified the sale deed with respect to measurement of his property and interfering with his possession and enjoyment of the suit schedule property.
12. The learned Advocate appearing for the defendant argued that the defendant is the owner of southern portion of site No.64 and the same is purchased from one M.Shankar and K.H.Geetha under the registered sale deed dated 15.12.2014 and since there is a interchange of measurement and hence the defendant's vendor obtained the rectification deed. The said Ramakka created the partition deed dated 9.7.2012 and thereby included the Site No.64, which is already sold to R.Tony S/o Rayappan under the sale deed dated 19.10.2000 and created the site of the plaintiff and sold the same to him under registered sale deed dated 4.9.2014. The plaintiff on the basis of the said sale deed in order to snatch the property of defendant trying to interfere in the property of the defendant.
13 OS No.1059/2015
13. It is the case of the plaintiff that the suit schedule property bearing northern portion of vacant site No.63 originally belongs to Ramakka W/o Kempanna, who got the same under the partition deed dated 2.7.2012 and he has purchased the same under registered sale deed dated 4.9.2014 from the said Ramakka and since then he is in possession and enjoyment of the same by changing the khatha and paying the taxes and on 23.12.2014 the defendant came near the suit schedule property and tried to interfere with his possession and enjoyment of the suit schedule property. In support of his case the plaintiff produced Ex.P.1 to P.15.
14. It is the case of the defendant that the Site No.64 originally belongs to the said Ramakka and she sold the same to R.Tony S/o Rayappan under the registered sale deed dated 19.10.2000, wherein the measurement is mentioned as 41 X 29 feet and thereafter the said R.Tony S/o Rayappan through his power of attorney holder sold the same to M.Shankar and 14 OS No.1059/2015 K.H.Geetha under registered sale deed dated 27.11.2011 and thereafter the said M.Shankar and K.H.Geetha obtained rectification deed mentioning the measurement of the Site No.64 as 21 X 41 feet and on the very same day M.Shankar and K.H.Geetha sold the northern half portion to the defendant under registered sale deed dated 15.12.2014 and he is in possession of the suit schedule property. In support of his case the defendant produced Ex.D.1 to D.49.
15. During the course of cross-examination of the PW1 it is came as under:
"It is true to suggest that the suit schedule property is a portion of Sy.No.58 of Mahadevapura Village. It is true to suggest that the suit schedule property is a revenue property. There is no conversion order and there is no approved layout with respect to the suit schedule property."
16. In the schedule of the plaint, it is shown that the suit schedule property is the portion of property No.58. So, it 15 OS No.1059/2015 is clear that the plaintiff claming that the suit schedule property is the portion of Sy.No.58 which is totally measuring 5 acres and there is no approved layout plan with respect to the sites formed in Sy.No.58.
17. Firstly, I would like to consider the Ex.P.1 and D.10. It is came in the cross-examination of PW1 as 'the suit schedule property is the item No.18 in Ex.P.1'. From Ex.P.1 - partition deed dated 9.7.2012, it is clear that Ramakka and her brother Krishnappa got the site properties, which are got under the gift deed, which are formed in Sy.No.58 of Mahadevapura Village and in that item No.18 of the A Schedule of it reads thus:
"¨ÉAUÀ¼ÀÆgÀÄ ¥ÀǪÀð vÁ®ÆèPÀÄ PÀȵÀÚgÁd¥ÀÅgÀ ºÉÆç½, ºÁ° §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁå¦ÛUÉ M¼À¥ÀqÀĪÀ ªÀĺÀzÉêÀ¥ÀÅgÀ UÁæªÀÄzÀ GvÀÛgÁzÀsð ¨sÁUÀzÀ ¸ÉÊmï £ÀA§gï 63, ¸ÀéwÛ£À £ÀA§gï 58 gÀ°ègÀĪÀ «¹ÛÃtð ¥ÀǪÀð-¥À²ÑªÄÀ B 30 CrUÀ¼ÀÄ ªÀÄvÀÄÛ GvÀÛgÀ - zÀQët B 20 CrUÀ¼ÀÄ, MlÄÖ 600 ZÀzÀgÀ CrUÀ¼À°ègÀĪÀ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀéwÛUÉ ZÉPÀÄ̧A¢B ¥ÀǪÀðPÉÌ B ¨ÉÃgÉAiÀĪÀgÀ ¸ÀévÀÄÛ 16 OS No.1059/2015 ¥À²ª Ñ ÀÄPÉÌ B gÀ¸ÉÛ GvÀÛgÀPÉÌ B ¸ÉÊmï £ÀA§gï 64 zÀQëtPÉÌ B EzÉà ¸ÉÊmï £ÀA.63 gÀ G½PÉ ¸ÀévÀÄÛ"
18. In the same Ex.P.1 the item No.4 of the B Schedule fallen to the share of Krishnappa reads thus:
"¨ÉAUÀ¼ÀÆgÀÄ ¥ÀǪÀð vÁ®ÆèPÀÄ PÀȵÀÚgÁd¥ÀÅgÀ ºÉÆç½, ºÁ° §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁå¦ÛUÉ M¼À¥q À ÀĪÀ ªÀĺÀzÉêÀ¥ÀÅgÀ UÁæªÀÄzÀ ¸ÉÊmï £ÀA§gï 63 ªÀÄvÀÄÛ 64 ¸ÀéwÛ£À £ÀA§gï 58 gÀ°ègÀĪÀ «¹ÛÃtð ¥ÀǪÀð-¥À²ÑªÀÄ GvÀÛgz À À PÀqÉ B 59 CrUÀ¼ÀÄ zÀQëtzÀ PÀqÉ 70 CrUÀ¼ÀÄ ªÀÄvÀÄÛ GvÀÛgÀ - zÀQët ¥ÀǪÀðzÀ PÀqÉ B 40 CrUÀ¼ÀÄ, ¥À²ÑªÀÄzÀ PÀqÉ 10 CrUÀ¼ÀÄ, MlÄÖ 1612.5 ZÀzÀgÀ CrUÀ¼À°ègÀĪÀ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀéwÛUÉ ZÉPÀÄ̧A¢B ¥ÀǪÀðPÉÌ B ¸ÉÊmï £ÀA§gï 65 ¥À²ª Ñ ÀÄPÉÌ B ¸ÉÊmï £ÀA§gï 62 GvÀÛgÀPÉÌ B ¸ÉÊmï £ÀA§gï 73 ªÀÄvÀÄÛ 74 zÀQëtPÉÌ B PÁ®ÄªÉ ªÀÄvÀÄÛ 18 CrUÀ¼À gÀ¸ÉÛ "
19. In the same Ex.P.1 the item No.7 of the B Schedule, which is fallen to the share of Krishnappa reads thus:
17 OS No.1059/2015
"¨ÉAUÀ¼ÀÆgÀÄ ¥ÀǪÀð vÁ®ÆèPÀÄ PÀȵÀÚgÁd¥ÀÅgÀ ºÉÆç½, ºÁ° §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁå¦ÛUÉ M¼À¥ÀqÀĪÀ ªÀĺÀzÉêÀ¥ÀÅgÀ UÁæªÀÄzÀ ¸ÉÊmï £ÀA§gï 73 ªÀÄvÀÄÛ 74 ¸ÀéwÛ£À £ÀA§gï 58 gÀ°ègÀĪÀ «¹ÛÃtð ¥ÀǪÀð-¥À²ÑªÀÄ B 60 CrUÀ¼ÀÄ ªÀÄvÀÄÛ GvÀÛgÀ - zÀQët B 39.5 CrUÀ¼ÀÄ, MlÄÖ 2370 ZÀzÀgÀ CrUÀ¼À°ègÀĪÀ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀéwÛUÉ ZÉPÀÄ̧A¢B ¥ÀǪÀðPÉÌ B ¸ÉÊmï £ÀA§gï 75 ¥À²ª Ñ ÀÄPÉÌ B ¸ÉÊmï £ÀA§gï 72 GvÀÛgÀPÉÌ B 20 Cr gÀ¸ÉÛ zÀQëtPÉÌ B ¸ÉÊmï £ÀA§gï 63 ªÀÄvÀÄÛ 64 "
20. In the same Ex.P.1 the item No.11 of the B Schedule, which is fallen to the share of Krishnappa reads thus:
"¨ÉAUÀ¼ÀÆgÀÄ ¥ÀǪÀð vÁ®ÆèPÀÄ PÀȵÀÚgÁd¥ÀÅgÀ ºÉÆç½, ºÁ° §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁå¦ÛUÉ M¼À¥ÀqÀĪÀ ªÀĺÀzÉêÀ¥ÀÅgÀ UÁæªÀÄzÀ ¸ÉÊmï £ÀA§gï 61 ªÀÄvÀÄÛ 62 ¸ÀéwÛ£À £ÀA§gï 58 gÀ°ègÀĪÀ «¹ÛÃtð ¥ÀǪÀð-¥À²ÑªÀÄ GvÀÛgz À À PÀqÉ B 87 CrUÀ¼ÀÄ zÀQëtzÀ PÀqÉ B 72 CrUÀ¼ÀÄ ªÀÄvÀÄÛ GvÀÛgÀ - zÀQët B ¥ÀǪÀðzÀ PÀqÉ 2 CrUÀ¼ÀÄ, ¥À²ª Ñ ÀÄzÀ PÀqÉ 53 CrUÀ¼ÀÄ, MlÄÖ 2186.25 ZÀzÀgÀ CrUÀ¼À°ègÀĪÀ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀéwÛUÉ ZÉPÀÄ̧A¢B ¥ÀǪÀðPÉÌ B PÁ®ÄªÉ ªÀÄvÀÄÛ ¸ÉÊmï £ÀA§gï 63 ¥À²ª Ñ ÀÄPÉÌ B ¸ÉÊmï £ÀA§gï 60 18 OS No.1059/2015 GvÀÛgÀPÉÌ B PÁ®ÄªÉ ªÀÄvÀÄÛ ¸ÉÊmï £ÀA. 71 ªÀÄvÀÄÛ 72 zÀQëtPÉÌ B 18 CrUÀ¼À gÀ¸ÉÛ "
21. The Ex.D.10 - sale deed dated 19.10.2000 discloses that the Ramakka W/o Kempanna sold the Site No.64 measuring 41 X 29 feet in favour of R.Tony S/o Rayappan. The property described in Ex.D.10 is as under:
"¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, PÀȵÀÚgÁd¥ÀÅgÀ ºÉÆç½, ªÀĺÀzÉêÀ¥ÀÅgÀ £ÀUÀgÀ¸À¨sÉ ªÁå¦ÛUÉ M¼À¥n À ÖgÀĪÀ ªÀĺÀzÉêÀ¥ÀÅgÀ UÁæªÀÄzÀ°ègÄÀ ªÀ ¸ÉÊmï £ÀA.64, SÁvÁ £ÀA.302 ªÀżÀî ¸ÀéwÛ£À £ÀA§gï 58 gÀ°è F ¢£À ¤ªÀÄUÉ PÀæAiÀÄ ªÀiÁrPÉÆlÄÖ ¤ªÀÄä ¸Áé¢üãÀ ¥Àr¹gÀĪÀ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀéwÛUÉ ZÉPÀÄ̧A¢ B ¥ÀǪÀðPÉÌ B ¨ÉÃgÉAiÀĪÀgÀ ¸ÀévÀÄÛ ¥À²ª Ñ ÀÄPÉÌ B 65£Éà £ÀA§gï ¸ÉÊlÄ GvÀÛgÀPÉÌ B 63£Éà £ÀA§gï ¸ÉÊlÄ zÀQëtPÉÌ B gÀ¸ÉÛ F ªÀÄzsÉå EgÀvÀPÀÌ ¥ÀǪÀð¢AzÀ ¥À²ÑªÀÄPÉÌ 41 CrUÀ¼ÀÄ ªÀÄvÀÄÛ GvÀÛgÀ¢AzÀ zÀQëtPÉÌ 29 DrUÀ¼ÀÄ F jÃw C¼ÀvÉAiÀÄ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀévÀÄÛ F ±ÀÄzÀÝ PÀæAiÀÄ¥ÀvÀæPÉÌ M¼À¥ÀnÖgÀÄvÀÛzÉ. "19 OS No.1059/2015
22. So, from Ex.D.10 it is clear that the Ramakka sold site No.64 before the Ex.P.1 - partition deed. Even after the sale of site No. 64, the same is included in the Ex.P.1 and it further shows that the same was fallen to the share of Krishnappa. Though the Ex.P.1 discloses that the Ramakka got 21 sites under it, but it do not show the boundaries of any site with regard to the selling of site in favour of R.Tony S/o Rayappan under the Ex.D.10 and in it there is no reference with respect to the sale of site in favour of said R.Tony S/o Rayappan. Further, the Ex.P.1 shows that the site Nos.63 and 64 together totally measuring east to west on the northern side 59 feet and southern side 70 feet and north to south on the eastern side 40 feet and western side 10 feet and there is also northern half of site No.63 i.e. suit schedule property which is the item No.8 fallen to the share of Ramakka. If it is taken that Site Nos.63 and 64 together totally measures 1612.5 sq.ft., then there cannot be northern half of Site No.63 i.e. suit schedule property measuring 600 sq.ft. and if it is taken that the northern half of Site No.63 i.e. suit schedule 20 OS No.1059/2015 property is correct, then there cannot be Site Nos.63 and 64 totally measuring 1612.5 sq.ft. Further, towards the western side of Site Nos.63 and 64 together, the Site No.62 is shown and towards the eastern side of Site Nos.61 and 62 together, canal and Site No.63 is situated. So, at one stretch in between Site Nos.61 and 62 together and Site No.63 canal is shown and at the same time in between them no canal is shown. The Ex.P.1 and Ex.P.2 shows that towards the western side of the suit schedule property 25 feet road is situated and at the same time, the Ex.P.1 also shows that towards the eastern side of Site Nos.61 and 62 together canal and Site No.63 is situated. Further, Ex.P.1 and Ex.P.2 shows that towards the northern side of the suit schedule property Site No.64 is situated and at the same time the Ex.P.1 also shows that towards the northern side of Site Nos.63 and 64 together the Site Nos.73 and 74 are situated.
23. The above fact discloses that in the larger extent of land bearing Sy.No.58 of Mahadevapura Village the sites 21 OS No.1059/2015 have formed by Ramakka and her brothers without any approved layout plan and hence the location of the suit schedule property cannot be ascertained. The sites shown under Ex.P.1 are not of uniform measurement and they are almost of odd measurement. As stated above in Ex.P. 1 there are Site Nos. 63 & 64 and also there is northern portion of Site No.63 which is alleged to the suit schedule property. The boundaries of the suit schedule property do not tally with the site properties of principal document, which is as per Ex.P.1. From the evidence placed on record it is not possible to know that which are the correct boundaries of the suit schedule property. So, thereby it is difficult to identify the suit schedule property. The possession includes identification of the suit schedule property. Such being the case, the other documents produced by the plaintiff will not help to his case to prove his possession over the suit schedule property. Hence, it cannot be said that the plaintiff is in possession of suit schedule property.
22 OS No.1059/2015
24. It is the case of the plaintiff that on 23.12.2014 the defendant tried to interfere in the possession and enjoyment of the suit schedule property. When the plaintiff failed to prove his possession over the suit schedule property, then the question of alleged interference by the defendant do not arise for consideration.
25. So, from the discussions made above, I am of the opinion that the plaintiff failed to prove that he is in possession and enjoyment of the suit schedule property as on the date of the suit and hence the question of considering the alleged interference by the defendant do not arise. Hence, Issue No.1 is answered in the negative and Issue No.2 is answered as does not arise for consideration.
26. ISSUE NO.3:- The PW1 during the course of the cross-examination admitted the Ex.D.50, which is the c/c of sale deed dated 25.3.2015, which discloses that the plaintiff sold the suit schedule property in favour of Smt.Maruboina 23 OS No.1059/2015 Lakshmikala and Sri.Divi Vijayakumar during the pendency of the suit. In this regard, the plaintiff also produced Ex.P.15, which is the c/c of the cancellation of sale deed dated 2.1.2017, which discloses that the plaintiff cancelled the sale deed dated 25.3.2015. From the Ex.D.50 it is clear that the plaintiff during the pendency of the suit sold the suit schedule property to Smt.Maruboina Lakshmikala and Sri.Divi Vijayakumar. When the plaintiff sold the suit schedule property during the pendency of the suit, then on the next date of hearing itself the plaintiff would have filed a memo informing the same to the court and got the suit dismissed. Even though during the pendency of the suit, the plaintiff got cancelled the sale deed, that will not make him to get permanent injunction against the defendant. The plaintiff without getting dismissal of the suit proceeded with the suit, which is not proper. When such being the case, the plaintiff is not entitle for equitable relief of injunction. For this reasons and in view of my findings Issue No. 1 & 2 the 24 OS No.1059/2015 plaintiff is not entitle for permanent injunction. Hence, Issue No.3 is answered in the negative.
27. ISSUE NO.4:- In the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the judgment writer on computer, thereafter corrected and then pronounced by me in the open court, on this the 11 th day of September 2018).
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 V.Chandra
25 OS No.1059/2015
b) Defendants' side:
D.W.1 Anjinappa
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 C/c of partition deed dated 9.7.2012 Ex.P.2 C/c of sale deed dated 4.9.2014 Ex.P.3 Katha extract Ex.P.4 to 10 Tax paid receipts Ex.P.11 & 12 Two encumbrance certificates Ex.P.13 Copy of complaint Ex.P.14 Acknowledgment Ex.P.15 C/c of cancellation of sale deed dated 2.1.2017
b)Defendants' side :
Ex.D.1 to 5 C/c of order sheet, plaint, written statement, order on IA and IA u/O 6 Rule 17 of CPC of OS.25060/2015 Ex.D.6 to 9 4 photographs Ex.D.10 Original regd. Sale deed dated 19.10.2000 26 OS No.1059/2015 Ex.D.11 Katha endorsement Ex.D.12 & 13 Two possession khatha endorsement Ex.D.14 to 26 13 tax paid receipts Ex.D.27 Building license Ex.D.28 Receipt regarding payment of fee to Engineers Ex.D.29 Copy of sale deed dated 27.1.2001 Ex.D.30 Copy of katha certificate Ex.D.31 Copy of Uttara Patra dated 6.7.2012 Ex.D.32 Assessment of houses and vacant sites Ex.D.33 to 36 4 tax paid receipts Ex.D.37 Rectification deed dated 15.12.2001 Ex.D.38 C/c of sale deed dated 15.12.2014 Ex.D.39 Assessment of lands and buildings Ex.D.40 Katha certificate Ex.D.41 to 45 5 tax paid receipts Ex.D.46 Copy of sale deed dated 15.12.2014 Ex.D.47 Copy of complaint dated 4.10.2015 Ex.D.48 & 49 Two sketches 27 OS No.1059/2015 Ex.D.50 Copy of sale deed dated 25.3.2015 Ex.D.51 C/c of EC ( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE Digitally signed by BASAVARAJ DN: cn=BASAVARAJ,ou =GOVERNMENT BASAVARAJ OF KARNATAKA,o=HI GH COURT OF KARNATAKA,st=K arnataka,c=IN Date: 2018.09.11 16:57:46 IST