Bangalore District Court
Sri Appaiah vs The Indian Space on 17 February, 2017
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
z
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge
Dated this the 17th day of February 2017
PLAINTIFF: Sri Appaiah,
S/o Late Mandanna,
Aged 42 years,
Proprietor R.K.Tailors,
Shop No.1,
"Om Shakthi Mariyamma
Temple" building,
Nanja Reddy Colony,
Bangalore-560 017.
[By Sri R.A.Devanand, Advocate]
/v e r s u s/
DEFENDANT: The Indian Space
Research Organization,
Department of Space,
Government of India,
Air Port Road,
Vimana Pura,
Bangalore-77,
Represented by
Senior Administrative Officer.
[By Sri SCM, Advocate]
Date of institution of : 16/4/2009
the suit
2 O.S.2939/2009
.
Nature of the suit : For injunction Date of commencement : 29/11/2010 of recording of the evidence Date on which the : 17/2/2017 Judgment was pronounced.
: Year/s Month/s Day/s Total duration 7 10 1 (S.H. Hosagoudar) XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against the defendant for the relief of permanent injunction restraining the defendant or their men or anybody else from their behalf from causing interference with regard to peaceable possessory enjoyment of the schedule property and for cost.
2. In brief, the plaintiff's case is as under:
Plaintiff submit that a Trust called "Om Shakthi Mariyamma Temple Trust" and which is a public Trust was formed on 23rd September 1994 by the devotees with a aims and objectives conducting 3 O.S.2939/2009 .
religious and charitable activities in the name of the said deity. The said Trust deed was registered on 23.9.1994 in the office of the Sub-Registrar, K.R.Pura, Bangalore.
Plaintiff further submits that the property bearing No.259/69-C- measuring 18+28 x 26 feet / 2 situated at Nanja Reddy Colony, HAL Sanitary board area Bangalore is the property of the said Trust. In the said property 2 shops and a house has been built. The schedule property was leased to plaintiff on 12.10.1998 for non-residential use by the president and secretary of the "Om Shakthu Mariyamma Temple Trust" on the strength of the lease agreement on a monthly rental of Rs.700/- and placed him possession of the property.
Plaintiff further submits that ever since thereon the execution of the said lease deed, the plaintiff has conducting business in the schedule property in the name and style "R.K.Tailors" by paying the monthly rents as and when falls due. After the duration of the 4 O.S.2939/2009 .
said lease deed of 11 months there is no further agreement of lease executed by and between the plaintiff and the said Trust. But, however, the plaintiff is continuing in the possession of the schedule property as tenant conducting similar business.
Plaintiff further submits that the documents no.1 to 3 would establish the fact conclusively that the plaintiff is in possession of the schedule property and his possession is a lawful one.
Plaintiff further submits that the defendant which being a Central Government undertaking has not possessed any right, title and interest over the schedule property and despite a team of officials visited the schedule property on 2.4.2009 when the plaintiff was in the shop and orally instructed the plaintiff to vacate the shop within one week and failing which the entire schedule property will brought under demolition. The plaintiff insisted for a written notice in that behalf and for which defendant's officials refused to heed to the request.
5 O.S.2939/2009
.
It is very important to state that the defendant being Central Government Undertaking at any given point of time may arm themselves and demolish the schedule property and in which event of the matter the plaintiff would be exposed to great hardship and injury. Therefore, in order to avoid the illegal attempts of the defendant in demolishing the schedule property the plaintiff immediately contacted the Jurisdictional police with a written complaint and the police refused to entertain the complaint of the plaintiff on the ground that the matter is of civil in dispute. Hence this suit.
3. In response to the summons issued by the Court, defendant appeared through its counsel and filed written statement.
4. In brief the contents of the written statement filed by the defendant are as under:
Suit of the plaintiff is false, frivolous and not maintainable either in law or on facts. The suit is bad for non-joinder of necessary parties. The defendant is 6 O.S.2939/2009 .
a functioning under Department of Space, Government of India, hence Union of India is necessary party. Further, plaintiff is said to have been lessee and hence lessor is also necessary party. The plaintiff has not issued any statutory notice as required under Section 80 of C.P.C prior to filing of the suit. It is false to contend that plaintiff is a tenant in respect of suit schedule property under trust called "Om Shakthi Mariyamma Temple Trust". It is false to contend that plaintiff is in lawful possession and enjoyment of the suit schedule property. The plaintiff is not entitled for Permanent Injunction as sought for.
Defendant submits that suit bearing O.S.No.6688/2000 on the file of City Civil Court filed by the "Om Shakthi Mariyamma Temple Trust"
against the present defendant in respect of same suit schedule property came to be dismissed on 6/1/2009. Subsequently the said "Om Shakthi Mariyamma Temple Trust" preferred appeal before Hon'ble High Court of Karnataka. The said appeal also came to be 7 O.S.2939/2009 .
dismissed by confirming the Judgment and Decree passed by City Civil Court. Hence suit of the plaintiff is hit by principles of res judicata since finding has already given by the City Civil Court in respect of the suit schedule property. On these grounds, defendant prays for dismissal of the suit.
5. On the basis of the pleadings of the parties, my predecessor in the office has framed following issues and additional issues:
(1) Whether the plaintiff proves his lawful possession and enjoyment of the suit schedule property as on the date of suit as alleged in the plaint?
(2) If so, whether the plaintiff further proves the alleged interference into his peaceful possession and enjoyment of the suit schedule property by the defendants as alleged in the plaint?
(3) Whether the defendant proves
that the suit of the plaintiff is
bad for non-joinder of
necessary parties?
8 O.S.2939/2009
.
(4) Whether the plaintiff is entitled for perpetual injunction as prayed?
(5) What decree or order?
ADDITIONAL ISSUES:
(1) Whether the defendant proves that claim of plaintiff is barred by doctrine of res judicata as contended in the written statement?
6. In order to prove his case, plaintiff is examined as PW.1 and produced in all 12 documents marked as Ex.P1 to Ex.P12 and closed its side of evidence. On behalf of the defendant, Senior Administrative Officer, ISRO Satellite Centre, Department of Space is examined as DW.1 and no documents are marked on behalf of defendant.
7. Heard arguments on both sides and perused entire records of the case.
8. My findings on the above issues and additional issues are as under:
Issue No. 1) ............ In the negative; 9 O.S.2939/2009
.
Issue No. 2) ............ In the negative; Issue No. 3) ............ In the affirmative; Issue No. 4) ............ In the negative; Issue No. 5) ............ As per final order;
for the following:
Addl.Issue No.1)........ In the affirmative;
9. ISSUE NO.1: Plaintiff contended that "Om Shakthi Mariyamma Temple Trust" is the owner of suit schedule property and he is a tenant under plaintiff and running tailoring shop by paying monthly rents to the said Trust and he has been in lawful possession and enjoyment of the suit schedule property.
10. In this case, defendant appeared through his counsel and filed written statement denying the case of plaintiff. Defendant contended that defendant organization is the owner of suit schedule property and plaintiff is not at all in possession and enjoyment of the suit schedule property and "Om Shakthi Mariyamma Temple Trust" is no way concerned to suit 10 O.S.2939/2009 .
schedule property and it has no right to let out the suit schedule premises in favour of plaintiff.
11. In this case plaintiff in order to prove his case, he examined himself as PW.1. He filed affidavit evidence in lieu of his examination-in-chief. In his examination-in-chief he reiterated the plaint averments. He produced in all 12 documents which are marked as Ex.P1 to Ex.P12. In the cross- examination he stated that he has not produced any documents to show that suit schedule property belongs to trust. He admitted that Ex.P1 was executed in the year 1998. He denied that he is not at all in possession and enjoyment of the suit schedule property.
12. In this case defendant orgnisation got examined its Senior Administrative Officer as DW.1. He filed affidavit evidence in lieu of his examination- in-chief. In his examination-in-chief, he reiterated the contention taken in the written statement. In the cross-examination, he stated that he has seen the suit 11 O.S.2939/2009 .
schedule property and suit schedule property measures 18 x 8 feet and there are temporary structures in the suit schedule property and said temporary structures have been constructed by "Om Shakthi Mariyamma Temple Trust".
13. I have perused entire evidence on record. As per this issue no.1, plaintiff has to prove that he is in lawful possession and enjoyment of the suit schedule property. It is the case of the plaintiff that he is a tenant in respect of the suit schedule property under "Om Shakthi Mariyamma Temple Trust" and he is running tailoring shop.
14. It is pertinent to note that earlier "Om Shakthi Mariyamma Temple Trust" had filed suit against this very defendant in O.S.No.6688/2000 on the file of City Civil Court CCH-5 for the relief of Permanent Injunction. After trial, the said suit came to be dismissed. Further it appears that "Om Shakthi Mariyamma Temple Trust" being aggrieved by the said Judgment and Decree passed in O.S.6688/2000 filed 12 O.S.2939/2009 .
an RFA No.410/2009 before Hon'ble High Court of Karnataka. After hearing, the said appeal also came to be dismissed by the Hon'ble High Court of Karnataka by order dated 4/9/2013. The order passed by the Hon'ble High Court of Karnataka in respect of the suit schedule property has reached finality. From the Judgment and Decree passed in O.S.6688/2000 and order passed in RFA No.410/2009, it is much clear that, "Om Shakthi Mariyamma Temple Trust" is not the owner of the suit schedule property and defendant is the owner of suit schedule property.
15. It is pertinent to note that already finding has been given by the competent Civil Court that "Om Shakthi Mariyamma Temple Trust" is not the owner of property bearing katha no.259/69-C. The said finding has reached finality. When "Om Shakthi Mariyamma Temple Trust" is not the owner of suit schedule property it has no right to let out the suit schedule premises to the plaintiff. Hence it cannot be said that 13 O.S.2939/2009 .
plaintiff is in lawful possession and enjoyment of the suit schedule property.
16. In this case plaintiff produced rent agreement which is marked as Ex.P1. It shows that "Om Shakthi Mariyamma Temple Trust" has executed rent agreement in favour of plaintiff in the year 1998. It is pertinent to note that, in Ex.P1 it is no where mentioned the property number and location of the property which is let out to plaintiff. Hence on the basis of Ex.P1, it cannot be said that plaintiff is in lawful possession and enjoyment of the suit schedule property. As already stated, Ex.P1 does not bear the property number. Hence it cannot be said that Ex.P1 is pertaining to suit schedule property. In this case plaintiff produced photographs which are marked Ex.P2 to Ex.P11 and produced CD which is marked as Ex.P12. On the basis of photographs, it cannot be said that plaintiff is in lawful possession of the suit schedule property.
14 O.S.2939/2009
.
17. It is pertinent to note that, City Civil Court CCH-5 already held that "Om Shakthi Mariyamma Temple Trust" is not the owner of suit schedule property and said finding is confirmed by the Hon'ble High Court of Karnataka in RFA No.410/2009. Hence from the evidence on record it is much clear that "Om Shakthi Mariyamma Temple Trust" is not the owner of suit schedule property and it has no right to let out the suit schedule premises to the plaintiff. Hence it cannot be said that plaintiff is in lawful possession and enjoyment of the suit schedule property. Admittedly, in this case plaintiff has not produced any documentary evidence to show that suit schedule property belongs to "Om Shakthi Mariyamma Temple Trust". In the previous suit also it is clearly held that "Om Shakthi Mariyamma Temple Trust" is not the owner of the suit schedule property. Therefore, "Om Shakthi Mariyamma Temple Trust" has no right over the suit schedule property.
15 O.S.2939/2009
.
18. In this case plaintiff also not produced any documents to show that how that Trust has acquired the suit schedule property. When there is no documentary evidence relating to suit schedule property, it cannot be said that the said Trust has let out the suit schedule premises to the plaintiff. As already stated in Ex.P1, property number is not mentioned and it is of the year 1998. Whereas plaintiff filed this suit in the year 2009. Admittedly, in this case plaintiff has not produced any documentary evidence to prove his lawful possession over the suit schedule property. The self-interested testimony of PW.1 is not supported by any cogent materials to prove his possession over the suit schedule property. Hence from the evidence on record it is much clear that plaintiff is not in possession of the suit schedule property. DW.1 in his cross-examination admitted that there are three temporary structures which are constructed by "Om Shakthi Mariyamma Temple Trust". It appears that the said trust has illegally 16 O.S.2939/2009 .
encroached some property belonging to the defendant organization. DW.1 in his cross-examination not at all admitted that plaintiff is in possession of the suit schedule property. In this case there is no cogent evidence on record to show that plaintiff is in lawful possession and enjoyment of the suit schedule property as on the date of suit. Plaintiff failed to prove issue no.1. Accordingly, I answer issue no.1 in the negative.
19. ISSUE NO.2: In this case plaintiff contended that defendant is trying to interfere in his peaceful possession and enjoyment over the suit schedule property. While answering issue no.1, it is held that plaintiff has failed to prove that he is in lawful possession and enjoyment of the suit schedule property. Absolutely there is no material on record to show the possession of the plaintiff over the suit schedule property. When once plaintiff has failed to prove his possession, the interference by the defendant does not arise at all and said cannot be 17 O.S.2939/2009 .
believed. Plaintiff failed to prove issue no.2. Accordingly, I answer issue no.2 in the negative.
20. ISSUE NO.3: In this case plaintiff contended that suit is bad for non-joinder of necessary party since plaintiff has not made government as a necessary party to this suit. It is pertinent to note that defendant is functioning under Department of Space, Government of India. Hence Union of India is a necessary party in this suit.
21. It is also important to note that, as per order 27 Rule 5A CPC, if suit is filed against Public Officer, the Government has to be joined as a party to the suit. Order 27 Rule 5A C.P.C reads as under:
"Where a suit is instituted against Public Officer for damages or other reliefs in respect of the any act alleged to have been done by him in his official capacity, the Government shall be joined as a party to the suit."18 O.S.2939/2009
.
22. In this case, defendant is a Central Government Officer. As per above provisions of law, if plaintiff has filed suit against Government Public Officer for seeking damages or any other reliefs in respect of any act alleged to have been done by him in his official capacity, Government shall be joined as a party to the suit. Admittedly, in this case plaintiff has not impleaded Union of India as a party to the suit. Hence suit of the plaintiff is bad for non-joinder of necessary party. Accordingly, I answer issue no.3 in the affirmative.
23. ADDITIONAL ISSUE NO.1: In this case defendant contended that suit is hit by principles of res judicata. The evidence on record clearly shows that earlier "Om Shakthi Mariyamma Temple Trust"
filed the suit in O.S.No.6688/2000 against the present defendant herein on the file of Additional City Civil Judge, Bangalore City CCH-5 for the relief of Permanent Injunction. After trial, said suit came to be dismissed. Being aggrieved by the Judgment and 19 O.S.2939/2009 .
Decree passed in O.S.6688/2000, "Om Shakthi Mariyamma Temple Trust" preferred an appeal in RFA No.410/2009 before Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka after hearing both side has dismissed the said appeal by confirming the Judgment and Decree passed in the above said suit. It appears that against the Judgment and Decree passed by the Hon'ble High Court of Karnataka, the "Om Shakthi Mariyamma Temple Trust" has not filed any Special Leave Petition before Hon'ble Supreme Court of India. Hence, order passed by the Hon'ble High Court of Karnataka in respect of suit schedule property has reached finality. The evidence on record clearly shows that defendant is the owner of suit schedule property. Plaintiff is claiming that he is a tenant under "Om Shakthi Mariyamma Temple Trust"
in respect of the suit schedule property. Already matter has been decided by the City Civil Court and held that suit schedule property does not belongs to "Om Shakthi Mariyamma Temple Trust". Now, 20 O.S.2939/2009 .
plaintiff claiming that he is a tenant under "Om Shakthi Mariyamma Temple Trust". Now plaintiff is stepped into the shoes of said Trust as a lessee and claiming relief of Permanent Injunction. City Civil Court CCH-5 already declared the rights of the parties in respect of the suit schedule property. The Judgment and Decree passed in O.S.No.6688/2000 is also binding on the plaintiff since he is claiming as a lessee under plaintiff. As already stated in a former suit i.e., in O.S.6688/2000, the rights of the parties are already decided by the City Civil Court. The present suit filed by the plaintiff as a lessee of said Trust is hit by principles of res judicata. Hence suit of the plaintiff is hit by principles of res judicata. Defendant proved additional issue no.1. Accordingly, I answer additional issue no.1 in the affirmative.
24. ISSUE NO.4: In this case plaintiff sought for the relief of Permanent Injunction restraining the defendant or their men from causing any interference with regard to his peaceful possession and enjoyment 21 O.S.2939/2009 .
over the suit schedule property. While answering issue no.1, it is held that plaintiff has failed to prove his lawful possession over the suit schedule property. Further, while answering issue no.2, it is held that plaintiff has failed to prove alleged interference by the defendant. While answering issue no.3, it is held that suit is bad for mis-joinder of necessary parties. While answering additional issue no.1, it is held that suit is hit by principles of res judicata. The plaintiff is not at all in lawful possession and enjoyment of the suit schedule property. Further, in this case plaintiff has not proved alleged interference by the defendant. Therefore, plaintiff is not entitled for the relief of Permanent Injunction as sought for. Accordingly I answer issue no.4 in the negative.
25. ISSUE NO.5: In view of my above discussions and reasoning on the above issues and additional issues, the suit of the plaintiff is liable to be 22 O.S.2939/2009 .
dismissed. In the result, I proceed to pass the following:
The suit of the plaintiff is hereby dismissed.
Under 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 on this the 17th day of February 2017.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Appaiah
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 K.A.Nagaraja
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Deed of agreement for lease
23 O.S.2939/2009
.
Ex.P 2
To Photographs with CD
Ex.P 12
4. List of the documents marked for the
defendants:
NIL
[S.H. HOSAGOUDAR]
XXVII Additional City Civil Judge.
BANGALORE.
17-2-2017 Plaintiff-RAD Defendant-SCM For Judgment....
...Judgment pronounced in the Open Court.... (Vide separate detailed judgment) The suit of the plaintiff is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
26 O.S.2939/2009.
27 O.S.2939/2009.
fdffd