Bangalore District Court
Sri. L.S.Ramesh Kumar vs Sri. Chand Pasha.M on 22 February, 2023
mKABC010254772018
IN THE COURT OF THE XXII ADDL.CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY: (CCH.7)
Dated this the 22 nd day of February, 2023.
PRESENT
BALAGOPALAKRISHNA
XXII ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.6673/2018
PLAINTIFF : Sri. L.S.Ramesh Kumar
S/o. Late Sathyanarayana Shetty
Aged about 52 years
R/at.No.642, 10th 'A' cross
West of Chord Road,
Rajajinagar, Bangalore-560010.
And also residing at No.104, 1st cross,
3rd main road, VHBCS LAYOUT
MAHALAKSHMIPURAM
BENGALURU.
( By Sri. Giriyappa, Advocate)
-VS-
DEFENDANTS : Sri. Chand Pasha.M
Aged about 39 years,
S/o. Sri. H.Mohammed Sab,
R/at No.455/1, Puttalingaiah
Building, Masjeed Road,
Peenya 1st stage, Bangalore-560058.
( By Sri. MKL, Advocate)
2 O.S.No.6673/2018
Date of Institution of the suit : 12-09-2018
Nature of the Suit : DECLARATION &
INJUNCTION
Date of commencement of recording
of evidence : 19-07-2019
Date on which the Judgment was
pronounced : 22 / 02 /2023
Year/s Month/s Day/s
Total Duration : 04 05 10
(BALAGOPALAKRISHNA)
XXII Addl.City Civil & Sessions Judge,
Bengaluru City.
JUDGMENT
The plaintiff has filed this suit against the defendant for declaration that, he is the absolute owner of the suit schedule property, mandatory injunction and possession and other reliefs as prayed in the plaint.
2. In a nut shell, the case of the plaintiff are as under:-
It is submitted that, suit schedule property bearing Khaneshumari Number 353/ 444 now coming under the limits of BBMP, Bengaluru wherein, new number is assigned as 36, PID No.1-68-36 Ward No.01, HMT situated at Peenya 8 th 3 O.S.No.6673/2018 cross, now 12th cross, measuring East to West 24ft and North to South 32ft with specific boundaries morefully described in the plaint. The said property had purchased by the plaintiff under registered sale deed dated 09-06-2004 from its erstwhile owner. It is further submitted that, the vendor of the plaintiff by name Venugopal.D and Kamalamma had purchased the suit schedule property from its erstwhile owner viz., Narayanappa and his children Chandru, Sampige Srinivasa and Gopi minor represented by his father H.Narayanappa under the Registered sale deed dated 08-04-1992. Earlier the vendor of the plaintiff by name Narayanappa, Krishnamma and D.Venugopal were running small scale industries and they were purchased the suit schedule property jointly in their name and they took electricity connection for their industry.
3. It is submitted that on the basis of the sale deed dated 09-06-2004 Khatha of the suit schedule property was transferred in the name of the plaintiff and he was also paying necessary tax to the BBMP. Hence, he has become the absolute owner and is in possession of the suit schedule property without any hindrance. It is also stated that, the plaintiff was not take care of the suit schedule property due to ill-health of his wife for a period of 2 months. On 23-08-2018, the plaintiff visited the suit schedule property and he was under shock and surprise that, the defendant who is not concerned to the family of the plaintiff he was putting up a 4 O.S.No.6673/2018 construction illegally over the suit schedule property by demolishing the existing shed on it, when it was questioned the defendant threatened the plaintiff to face dire consequences. The plaintiff have complained the illegal construction of the defendant to the concerned police on 23-08-2018, but they have not taken any action against the defendant. After persuasion , the police have registered a crime against the defendant in C.R.NO.461/2018 for the offences punishable under Sec.427, 506, 504, 447 r/w Sec.34 of IPC.
4. It is submitted that, the defendant is claiming the suit schedule property on the basis of the created and concocted document. Whatever the Khatha made in the name of the defendant has been withdrawn. Thus, Khatha of the suit schedule property is in the name of plaintiff as absolute owner. Hence, cause of action was arose for the plaintiff to file the suit. Accordingly, prayed to decree the suit.
5. In response to the summons issued by this court, the defendant has appeared through his counsel and filed a written statement as under:-
From para Nos.1 to 4 this defendant has denied the averments made in the plaint are all false and created for the purpose of this suit. This defendant has also claimed his ignorance about the lodging of the complaint by the plaintiff on 23-08-2018, on the basis of the false complaint the police 5 O.S.No.6673/2018 have registered a FIR against this defendant. Suit of the plaintiff is not maintainable either in law or on facts and liable to be dismissed.
6. It is the specific case of the defendant that, the immovable property bearing Municipal No.353/444, Assessment No.46, Corporation No.353/444, PID No.1-72- 353/444 now comes under BBMP Ward No.1 measuring East to West 22-06ft and North to South 25-06ft situated at 12th cross road, Harijan Colony, Peenya village, Yeshwanthapura Hobli with specific boundaries mentioned in the written statement had purchased by this defendant under registered sale deed dated 21-09-2017 from its erstwhile owner by name Anil Kumar. In pursuance of the sale deed Khatha and other documents were entered in the name of this defendant and accordingly, he is in possession of the said property. It is also stated that, the defendants erstwhile owner by name Anil Kumar had purchased the suit schedule property from one Gopi under registered sale deed dated 28-11-2014. It is further stated that, the said Gopi.N had acquired title over the said property under registered release deed dated 18-11-2014.
7. It is submitted that, this defendant after purchase of the suit schedule property he has taken a loan from DFHL Bank and has constructed a building after taking license from the concerned BBMP. The defendant is running a small 6 O.S.No.6673/2018 garage to eek out his livelihood and also rented out the suit schedule property stated in the written statement. This defendant is also paying necessary tax to the Government. The property claimed by the plaintiff and property of the defendant are separate and distinct. The suit schedule property is situated at 8th cross, whereas the property of defendant is situated at 12th cross. The plaintiff is wrongly claiming the property of the defendant. Therefore, suit of the plaintiff is not maintainable. The plaintiff has filed the present suit against the defendant only with an intention to grab the valuable property of the defendant. On these grounds and amongst others prayed to dismiss the suit of the plaintiff.
8. On the basis of the above pleadings of the respective parties, my learned predecessor in office has framed the following :-
ISSUES
1) Whether the plaintiff proves that, he is the absolute owner of suit schedule property?
2) Whether the plaintiff further proves that, defendant has put up construction over the suit schedule property illegally?
3) Whether the plaintiff is entitled for the relief of mandatory injunction?
4) Whether the plaintiff is entitled for the relief as sought?
5) What Order or Decree?7 O.S.No.6673/2018
ADDITIONAL ISSUE NO.1 FRAMED ON 15-02-2023
1. Whether the plaintiff is entitled for possession of the suit schedule property as prayed?
9. On the side of the plaintiff, PW.1 and 2 are examined and Exs.P1 to 63 are got marked. On the side of the defendant DW.1 is examined. Ex.D1 to 26 are got marked and closed their side.
10. Heard the arguments on both sides and perused the documents.
11. On the basis of the evidence available on record, my 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 Negative;
Issue No.4 : In the Affirmative;
Issue No.5 : As per final order
for the following:
Addl. Issue No.1 : In the Affirmative.
REASONS
12. ISSUE NO.1:-
This issue refers to the title of the plaintiff over the suit schedule property. According to the plaintiff, he had 8 O.S.No.6673/2018 purchased the suit schedule property totally measuring East to West 24ft and North to South 32ft under registered sale deed dated 09-06-2004 from its erstwhile owner namely D.Venugopal and Krishnamma.
(a) The vendor of the plaintiff viz., D.Venugopal and Krishnamma had acquired the suit schedule property under registered sale deed dated 08-04-1992 executed by Narayanappa and his sons Chandra, Sampangi, Srinivas and Gopi, at that time Gopi was minor, so he was represented by his father Narayanappa, in the said deed also measurement of the property as shown in the schedule.
(b) In the said two sale deeds dated 08-04-1992 and 09-06-2004 property Number is mentioned as Katha Number 353/444 PID No.1-68-36.
(c) The defendant in his written statement is claiming property bearing Municipal No.353/444, Assessment No.46, Corporation No.353/444, PID No.1-72-
353/444, now comes under BBMP Ward No.1, measuring East to West 22-06ft and North to South 25.06 feet.
(d) The said property is claimed by the defendant from its vendor Anil Kumar under registered sale deed dated 21-09-2007.
(e) The vendor of the defendant by name Arunkumar claiming the suit property from his erstwhile owner Gopi under registered sale deed dated 28-12-2014.
9 O.S.No.6673/2018(f) Said Gopi is claiming his title over the written statement property under registered sale deed dated 18-11-2014.
13. Before discussing, it is just and proper to discuss about the title of the parties. It is just and proper to mention the property Number of the plaintiff as well as defendant.
Property details of Plaintiff Property details of defendant
1. Khaneshumari No.353/444 Municipal No.353/444 PID No. 1-68-36 Assessment No.46 BBMP WARD NO.36 Corporation No.353/444 Earlier Peenya 8th cross PID No. 1-72-353/444 and now shown as 12th cross, BBMP.
2. Measurement Measurement East to West:24ft East to West:22.06ft North to South: 32 ft North to South:25.06 ft
3. BOUNDARIES BOUNDARIES East:-Property of East :- Property of Pillavenkatappa Pillavenkatappa West:- By Road West :- By Road North:- By 5ft common North :- By 3ft road passage South:- Property of South:-Property of Hanumantharaya.
Hanumantharaya.
10 O.S.No.6673/2018The reason for mentioning said details is that, the defendant in para No.8 of the written statement has taken a contention that, property claimed by the plaintiff and the property of the defendant are separate and distinct and it is also stated that, the property of the plaintiff is situated at 8 th cross, where as property of the defendant is situated at 12 th cross. Therefore, according to the plaintiff there is a serious dispute regarding identification of the property. Merely, in the sale deed of plaintiff at Ex.P2, Ex.P1 the cross has been wrongly mentioned as 8th cross instead of 12th cross, the court cannot come to conclusion that, the property of the plaintiff and defendant are separate and distinct because if the argument of counsel for defendant Sri.M.K is accepted the boundaries of the suit property and the property claimed by the defendant shall not be one and the same. In this case, on comparison of the boundaries stated above all boundaries are tallies except Northern boundary. In the plaint, northern boundary mentioned as 5ft common passage, whereas in the written statement boundaries it is mentioned as 3ft road. As per Order 7 Rule 3 CPC property can be identified by boundaries and number. In this case, the defendant wanted to identified his property and also the property of plaintiff on the basis of the cross. When boundaries are very specific in Ex.P2, the same has to be considered for the purpose of identification of the property. Merely, mentioning the wrong cross or even cross is not mentioned, it is no way affect the right of the plaintiff because the property of the plaintiff is well 11 O.S.No.6673/2018 identified in the documents. Considering the said aspect, I come to conclusion that property claimed by the plaintiff and the property claimed by the defendant are one and the same.
14. Now, let me trace out the title of both plaintiff and defendant. In order to prove the case of the plaintiff, the plaintiff himself examined as PW.1 and his examination-in- chief has been filed by way of affidavit wherein, he reiterated the averments made in the plaint and following documents are got marked:-
Ex.P.1:- Is the Original sale deed dated 09.06.2004 executed by Sri. D Venugopal and Smt. R. Krishnamma in favor of plaintiff in respect of suit schedule property.
Ex.P.2:- Is the Original sale deed dated 08.04.1992 executed by Sri. H. Narayanappa and sons by name N.Chandra, Sampangi, Srinivasa and Gopi who was minor, on his behalf father H.Narayanappa executed the sale deed in respect of suit schedule property.
Ex.P.3:- Is Certified copy of encumbrance certificate.
Ex.P.4:- Certified copy of encumbrance certificate from 24.05.2004 to 05.09.2017 in the name of Sri. L. S Ramesh Kumar (PW.1) 12 O.S.No.6673/2018 Ex.P.5:- Certified copy of encumbrance certificate from 01.04.2017 to 28.08.2018.
Ex.P.6:- Khata certificate dated 04.09.2017 in respect of the schedule property .
Ex.P.7:- Khata certificate .
Ex.P.8:- Khata extract .
Ex.P.9:- Khata extract .
Ex.P.10:- Tax paid receipts (5 in Nos) Ex.P.11:- Self assessment of property tax for the year 2017-18 Ex.P.12:- Tax paid receipt for the year 2018-
19. Ex.P.13:- Certified copy of plan approved copy issued by office of the Peenya Group Panchayath.
Ex.P.14:- copy of complaint dated 23.08.2018.
Ex.P.15:- Certified copy of FIR dated 03.09.2018.
Ex.P.16:- copy of complaint dated 23.08.2018.
Ex.P.17:- Khata certificate in the name of Sri. D Venugopal and Smt. R. Krishnamma.
13 O.S.No.6673/2018Ex.P.18:- Special notice issued by Assistant Revenue Officer, Corporation of City, Bengaluru.
Ex.P.19:- Certificate issued by Assistant Revenue Officer, BBMP.
Ex.P.20:- Certified copy of Demand Register Extract.
Ex.P.21:- Copy of complaint before BBMP dated 07.09.2018.
Ex.P.22 4 photographs of the suit to 25:- schedule property. Ex.P26:- Is C.D
Ex.P27:- Is the Certificate u/s. 65B of the Indian Evidence Act.
Ex.P.28:- Khatha extract in respect of the suit property Ex.P.29:- Khatha certificate.
Ex.P.30:- Certified copy of property card issued by department of survey, settlement and land records in respect of suit schedule property.
Ex.P.31:- Certified copy of field book of detail mapping standing in the name of vendor Sri. Hanumantharayappa.
Ex.P.32:- Certified copy of survey sketch.
Ex.P.33:- Certified copy of mother deed dated 08.04.1992 executed by Sri. H Narayanappa in favor of 14 O.S.No.6673/2018 Smt. Krishnamma and Sri. Venugopal in respect of suit schedule property (Ex.P.2 original sale deed already marked).
Ex.P.34:- Medical report issued by St. John's medical college hospital dated 19.12.2015.
Ex.P.35:- Doctor certificate (Rao's Uro Care) Ex.P.36:- Complaint dated 20.09.2018.
Ex.P.37:- Complaint to police commissioner dated 16.10.2018.
Ex.P.38:- Statement of plaintiff.
Ex.P.39:- Statement of defendant Ex.P.40:- Certified copy of endorsement issued by Asst commissioner of police, Yeshwanthpur.
Ex.P.41:- RTI application along with postal receipt and postal order.
Ex.P.42:- Certified copy of Track
Consignment issued by
department of posts.
Ex.P.43:- RTI application along with postal receipt and postal order.
Ex.P.44:- Postal Acknowledgement.
Ex.P.45:- Letter dated 16.04.2019 issued by BBMP to L.S.Ramesh Kumar.
15 O.S.No.6673/2018Ex.P.46:- Opened Postal cover sent from BBMP to L.S.Ramesh Kumar.
Ex.P.47:- RTI application along with postal receipt and postal order.
Ex.P.48:- Postal Acknowledgement.
Ex.P.49:- RTI application along with postal receipt and postal order.
Ex.P.50:- Postal Acknowledgement.
Ex.P51:- Endorsement dated :21-12-2021.
Ex.P52 3 tax paid receipts to P54:- Ex.P55 4 photos to 58:- Ex.P59:- C.D Ex.P60:- Ltr dated 30-12-2021 Ex.P61:- Certified copy of book
Ex.P62:- Demand Register Extract Book Ex.P63:- Information submitted by BBMP Office to G.Giriyappa sought under RTI.
In the cross-examination, it is suggested that,
1. In the plaint schedule it is mentioned as 12th cross. There is no proof to show that the 16 O.S.No.6673/2018 plaint schedule property is in 12th cross.
2. It is false to suggest that my property is different and defendants property is different. I do not know the Ex.P13 sketch does not bear the person who prepared the sketch. In Ex.P13 sketch I cannot find the location of my property. It is false to suggest that property bearing 25ft x 22ft mentioned in Ex.P13 is belonging to defendant.
Ex.P30 and Ex.P31 are the survey records pertaining to the entire property. I do not know who is Hanumantharayappa mentioned in Ex.P31. I do not know that Hanumantharayappa brother of Narayanappa.
3. I do not know the property that was belonging to Hanumanthappa, Pilla Venkatappa and Narayanappa were situated in various location including in 8th cross, 12th cross etc. In the rest of the cross-
examination, defense of the defendant has been suggested same is been denied by the witness.
15. On behalf of the plaintiff, one ARO of BBMP is examined as PW.2, in his examination-in-chief he has deposed that the suit schedule property comes within his jurisdiction. He has also deposed that, he has produced Ex.P61 and Ex.P62. As per that, property No.36, old 17 O.S.No.6673/2018 No.353/444 measuring 24 x 32ft comes in 8th cross road, Peenya. He has also deposed that, property No.36 is not divided as per Ex.P61 and P62.
In the cross-examination he has admitted that, ನ.ಪ.61 ರಲಲ ನಮಮದದ ಮಮಡರದವ ಆಸಸ ಪಪಣಮಣದ 8 ನನಪ ಅಡಡ ರಸನಸಯಲಲ ಬರದತಸದನ ಅದರ ವಸಸಪರರ 24 x 32 ಸಸತಸನ ಸಸಖನಣ 36. ನ.ಡ.2 ರಲಲ ನಮಮದದ ಮಮಡರದವ ಆಸಸ ಮತದಸ ನ.ಪ.61 ರಲಲ ನಮಮದದ ಮಮಡರದವ ಆಸಸ ಬನಪರನ ಬನಪರನ ಎಸದರನ ಸರ . ನ.ಪ 61 ರಲಲ ಒಲಲಡಲ ಪಮಪಪರರ ನಸನ 353- 444 ರನನ ತದನಸತರದಲಲ ಸನಪರಸಲಮಗದನ ಎಸದರನ ಮಮಹತ ಇಲಲ. ನ.ಪ.62 ರಲಲ ಆಸಸ ಸಸಖನಣ 32 ಇದದದನದನ 36 ಎಸದದ ತದದಲಮಗದನ ಎನದನವ ಸಮಚನನಗನ ಸಮಕಕ , ಅಸಲದ ಪಪಸಸಕದಲಮಲ ಹಮಗನಪ ಇದನ ಎಸದದ ನದಡಯದತಮಸರನ.
ನ.ಪ.51 ರಲಲ ನಮಮದದ ಮಮಡರದವ ಮಮಹತಗಳದ ದಮವಮ ಆಸಸಗನ ಸಸಬಸಧಸದದದ. ನ.ಪ.51 ರಲಲ ನಮಮದದ ಮಮಡರದವ ಆಸಸ ನ.ಡ.52 ರಲಲ ನಮಮದದ ಮಮಡರದವ ಆಸಸ ಬನಪರನ ಬನಪರನ ಎಸದರನ ಸರ .
16. On the side of the defendant, he himself examined as DW.1 and his examination -in -chief has been filed by way of affidavit, wherein he reiterated the averments made in the written statement and the following documents are got marked:
EX.D-1:- Is the Letter dated 11-11-2019 issued from BBMP to Giriyappa.
Ex.D-2:- Is the BBMP Letter dated 18-07-2022 regarding payment of upto day tax till 2022-2023 by one Sri. Chand Pasha.18 O.S.No.6673/2018
Ex.D-3:- (Is the Submission of Information by letter dated 22-07-2022 by BBMP sought under RTI.) Tax Assessment Register extract in respect of house and vacant sites.
Ex.D-4:- Is the Khatha Registration Application form (confronted in the cross of PW.2) Ex.D-5:- Is the Endorsement dated 31-12-2018 (confronted in the cross of PW.2) Ex.D-6:- Is the Uttara Pathra (confronted in the cross of PW.2) Ex.D-7:- Is the Tax paid receipt (confronted in the cross of PW.2) Ex.D-8:- Is the Tippani issued by BBMP.
(confronted in the crossof PW.2) Ex.D-9:- Is the Absolute sale deed dated 21-09-2017.
Ex.D-10:- Is the Encumbrance certificate Ex.D-11, 12:- Are the Khatha Certificate & extract Ex.D-13:- Is the Absolute sale deed dated 28-11-2014 Ex.D-14:- Is the Release Deed dated 18-11-2014.
Ex.D-15:- Is the Building plan / sketch Ex.D16:- Are the Electricity bills (4 in Number) Ex.D17:- Is the Application form for Water supply connection.19 O.S.No.6673/2018
Ex.D18:- Are the Electricity bills Ex.D19, 19(a):- Photographs & CD Ex.D20:- Is the House Warming ceremony card Ex.D21:- Is the letter from DHFL Pramerica Life Insurance.
Ex.D22:- Is the BBMP Letter dated 01-02-2019.
Ex.D23:- Is the Copy of Mysore Gazette dated October 19, 1967.
Ex.D24:- Is the Sketch
Ex.D25:- Is the Property card
Ex.D26 :- Details issued by ADLR
17. In the cross-examination, the plaintiff counsel suggested that:-
ಗನಮಪಪಯ ತಸದನ ನಮರಮಯರಪಪ ಅಸಸಯನನ ವನಪರದಗನಮಪಪಮಲಲ ಮತದಸ ಕಕಷಷಮಮ ರವರಗನ ಮಮರದದರದ ಕಮಡ, ನಮರಮಯರಪಪ ಮರರ ಹನಮಸದದ ನಸತರ ದಮವಮ ಷನಡಮಣಲಲ ಆಸಸಯ ಖಮತನಯನನ ಗನಮಪಪ ಮಮರಮರದ ವಚಮರವನನ ಗಮನಕನಕ ತರದನನಪ ಸತಣ ವಚಮರ ಮದಚಚರದಟ ತನನ ಹನಸರಗನ ಖಮತನ ಮಮಡಕನಮಸಡರದತಮಸನನ ಎಸದರನ ಸದಳದಳ. ನ.ಪ.63 ರ 53 ನನಪ ಪಪರದಲಲ ಅನದಭವದಮರ ಎನಲ.ಗನಮಪಪ ಎಸದದ ಇದನ ಎಸದರನ ಸರ. ನಮನದ ಎಸಲ.ಎಸಲ.ಎಲಲ.ಸ ವರನಗನ ಓದಕನಮಸಡದನದಪನನ. ನಮನದ 20 O.S.No.6673/2018 ಗಮಣರನಪಜಲ ನಡನಸದತಸದನನದಪನನ. ಅದರಸದ ತಸಗಳಗನ ರಮ.25 ರಸದ 30 ಸಮವರ ರಮಪಮಯ ಸಸಪಮದನನ ಇದನ. ನಮನದ ಅನಲಲಕದಮಮರಲ ರವರಗನ ಆಸಸಯನದನ ಖರಪದ ಮಮಡದಮಗ ನಮಮ ಕದರದಸಬದಲಲ 12 ಜನ ಇದನದಪವಪ.
In the further cross-examination it is suggested that, the plaintiff is owning property measuring 32 x 24ft which includes the property of the defendant same is denied by the witness. In rest of the cross-examination, case of the plaintiff has been suggested, same is denied by the witness.
18. The documents produced by the parties reveals that, one Hanumantharayappa had sons viz., Hanumantharayappa, Pillappa and Narayanappa. It further reveals that, Panchayathi House List No.442, 443, 444 totally measuring East to West 45ft and North to South 40ft. According to the defendant the said property was divided among the said brothers under Partition Deed dated 10-12- 1981. This document is not produced by the parties. Mere production of document is not helpful to the parties to prove their case.
19. In this case, vendor of the plaintiff claiming the suit schedule property under Ex.P2 i.e., the sale deed dated 08-04-1992 executed by H.Narayanappa and his sons viz., Chandra aged about 30 years, Sampangi aged about 28 21 O.S.No.6673/2018 years, Srinivasa aged about 22 years and N.Gopi aged about 16 years minor represented by his father H.Narayanappa. Under the said sale deed, the said persons sold suit schedule property in favour of Venugopal and Krishnamma jointly.
20. Under Ex.P1 the vendors i.e., Venugopal and Krishnamma have sold the suit schedule property in favour of plaintiff under registered sale deed dated 09-06-2004. It is pertinent to note that, in Ex.P2 schedule is clearly mentioned as property belonged to Peenya Group Panchayat, Peenya Grama Thana, Khanesumari Number 353/444 and they have also mentioned the following boundaries:-
East by:- Property of Pillavenkatappa; West by:- Road;
North by:- 5ft of Common passage; South by:- Property of Hanumantharayappa. In the said sale deed there is no mention of roads as stated in the plaint i.e., 8th cross road or 12th cross road. On verification of the Ex.P1 for the first time 8th cross road and property No.36 has been mentioned by mentioning above boundaries. In pursuance of the said two title documents, concerned BBMP have accepted Katha in the name of the plaintiff.
21. Now, the court has to verify how the defendant is claiming the title over the property. As per Ex.P14 i.e., 22 O.S.No.6673/2018 Registered Release Deed dated 18-11-2014 the following persons have executed Release deed in favour of N.Gopi.
(a) Chennamma W/o. Chandra
(b) Sampangi S/o. H.Narayanappa
(c) Krishnappa Son in law of H.Narayanappa
(d) Kalappa Son in law of H.Narayanappa.
(e) Srinivasa son of H.Narayanappa
(f) Manjula D/o. H.Narayanappa, whereunder they have released their right in respect of property Bg.Sy.No.46 Peenya village, Municipal New No.353/444, 12th cross road, Harijan Colony measuring East to West 22.6ft and North to South 25.6ft with the following boundaries:
East by:- Property of Pillavenkatappa; West by:- Road;
North by:- Road;
South by:- Property of Hanumantharayappa.
On the basis of the said release deed, N.Gopi son of Late H.Narayanappa executed sale deed as per Ex.D13 in favour of one Anil Kumar i.e., vendor of the defendant under registered sale deed dated 28-11-2014 by mentioning boundaries as under:-
East by:- Property of Pillavenkatappa; West by:- Road;
North by:- 3ft Passage;
South by:- Property of Hanumantharayappa.23 O.S.No.6673/2018
Again the vendor of the defendant by name Anil Kumar sold the said property in favour of the defendant under Ex.D9 under registered sale deed dated 21-09-2017 by mentioning above said boundaries.
22. The very crucial question is the vendor's vendor of the defendant had title to the said property has to be considered. Under Ex.P2 i.e., sale deed dated 08-04-1992 vendor's vendor of the defendant by name N.Gopi has lost his right over the property of his father because under Ex.P2 the vendor's vendor of the defendant had executed the Ex.P2 for himself and also on behalf of N.Gopi who was minor at the time of executing the sale deed in favour of vendor of the plaintiff by name D.Venugopal and Krishnamma. The said sale deed is not questioned by N.Gopi i.e., vendor's vendor of the defendant soon after he attained majority. Hence, same is binding on him. The father of N.Gopi lost his right by selling suit property question of again selling by Gopi does not arise at all.
22(i). Under Ex.D14 i.e., Release Deed dated 08-11- 2014 how the Releasor i.e.,Chennamma and others have right over the property has to be considered. Now comes to Chennamma w/o Chandra has no right to execute the Release Deed because under Ex.P2 her husband sold his share to vendor of the plaintiff, likewise Sampangi and Srinivas sons of H.Narayanappa have also sold their share 24 O.S.No.6673/2018 under Ex.P2. Krishnappa and Kalappa are no way concerned to the suit schedule property because they are son-in-law of Narayanappa. So they do not have right over the property of Narayanappa to execute the Release Deed. Last one is Manjula D/o. H.Narayanappa has also executed Release Deed, at that time no property was in the family of H.Narayanappa. Therefore, whatever the Release Deed executed under Ex.D14 in favour of N.Gopi has no consequences and no property was available in the family of Narayanappa to execute Release Deed.
22(ii). In spite of the above fact, N.Gopi S/o. Late H.Narayanappa sold a property mentioning lesser extent in favour of vendor of the defendant under Ex.D13 on 28-11-2014 at that time N.Gopi had no title over the property number 353/444. When vendor's vendor of the defendant has no title over the property, how can vendor of the defendant convey title to the defendant under Ex.D9 on 21-09-2017 has not been explained by the defendant. The learned counsel appearing for the defendant Sri. MKL, all along simply contended that, property claimed by the defendant and property claimed by the plaintiff are separate and distinct which cannot be acceptable one. Further more, if the vendor's vendor of the defendant is claiming the title over the property other than N.Gopi s/o. H.Narayanappa matter would have been different. Further, if the defendant is able to demonstrate that, father of N.Gopi i.e., Narayanappa left other 25 O.S.No.6673/2018 sites in very same property number, same could have been accepted by court, but no material is produced by defendant about the said aspect.
23. In all, the moment Naryanappa and his sons including N.Gopi have sold the property under Ex.P2 in favour of D.Venugopal and Krishnamma on 08-04-1992 no property is remained with the family of H.Narayanappa S/o. Hanumantharayappa. Therefore, under Ex.D14 the releasors have no right to execute Release Deed in favour of Gopi to the extent of 22.06ft x 25ft and no property is with the family of the said persons. Therefore, whatever the sale deed executed by N.Gopi S/o. Narayanappa under Ex.D13 in favour of Anil Kumar on 28-11-2014 and in turn Anil Kumar sold the property in favour of defendant on 21-09-2017 no title would passes to them because in the year 1992 itself, Narayanappa and his sons including Gopi have lost their right over the property Khanesumari No.353/444. From the above documentary evidence the plaintiff has proved that, he has a better title over the property when compared to defendant and his vendor's vendor.
24. No doubt, on the basis of the Registered document the concerned BBMP officials without verifying the proper documents simply accepted the Katha in the name of both plaintiff and defendants which is not proper. Even acceptance of Katha and writing Katha endorsement in the 26 O.S.No.6673/2018 name of the defendant has no consequences because the concerned BBMP officials would accept the Katha subject to confirmation of title. Merely, on the basis of the Katha, tax paid receipts and obtaining electricity connection, water supply etc., does not confer title to the defendant. In view of the discussion of title deed of the respective parties, other BBMP documents giving complaint etc., is not necessary to discuss here. As discussed above, the vendor's vendor of the defendant has no independent right over the property as per Ex.P63 i.e., proceedings No.4 it is mentioned that:-
ಅರರದಮರರದ ಸಲಲಸರದವ ದಮಖಲನಗಳನದನ ಪಶಪಲಸಲಮಗ ಸದರ ಸಸತದಸ ಪಸಚಮಯಲತ ಖಮತನಯ ಪಪಕಮರ ಖಮತಮ ನಸ.353- 444 ರಲಲನ ಸಸತಮಸಗದದದ ಶಪಪ.ಎಚಲ .ನಮರಮಯರಪಪರವರಗನ ಪತಮಪರರತವಮಗ ಬಸದ ಸಸತನಸಸದದ ದಕಡಪಡಸರದತಮಸರನ ಮತದಸ ಗಮಪಪಲ ಪಸಚಮಯಸಯಲಲ ಮನನ ಕಸದಮಯ ಪಮವತಸಕನಮಸಡದ ಬಸದರದತಮಸರನ.
ಸದರ ಸಸತಸನ ಹಕದಕದಮರರಮದ ಶಪಪ.ಹನಚಲ .
ನಮರಮಯರಪಪರವರದ ದನಮಸಕ 17-06-2005 ರಸದದ ನಧನ ಹನಮಸದದದದ ಇವರ ನಧನಮ ನಸತರ ಅವರ ಮಕಕಳಮದ ಎನಲ.ಚಸದಪ , ಎನಲ.ಸಸಪಸಗ, ಲಕಕಕಮಮ , ಸದಜಮತ , ಎನಲ .ಶಪಪನವಮಸ , ಎನಲ.ಗನಮಪಪ ಮತದಸ ಮಸಜದಳ ರವರದ ಮದಸದನ ವಮರಸದದಮರರಮಗರದತಮಸರನ. ಇವರದಗಳ ಪನಪಕ ಸದರ ಸಸತಸನ ಖಮತನಯನದನ 6 ನನಯವರಮದ ಎನಲ.ಗನಮಪಪರವರ ಹನಸರಗನ ನನಮಸದಮಯಸಕನಮಳಳಲದ ತಮಮಗಳ ಆಕನಕಪಪಣನ ಎನದ ಇಲಲವನಸದದ 27 O.S.No.6673/2018 ಉಳದವರನಲಲರಮ ಸನಪರ ನರಮಕನಕಪಪಣಮ ಪಪಮಮರ ಪತಪವನದನ ಸಲಲಸರದವಪದದ, ಎನಲಗನಮಪಪರವರ ಹಕಕನದನ ದಕಢಪಡಸದತಸದನ.
From the said proceedings it is gathered that, though the Narayanappa in the year 1992 itself sold property No.353/444, on his death on 17-06-2005 his Lrs have suppressed the Ex.P2 and got mutated the Katha in their name and also subsequently, to fortify their illegal act they have entered in to Ex.D14 and subsequently, sold the property under Ex.D13 and then the defendant has purchased the property under Ex.D9. For the said reason, the defendant has no title on it. Further, the plaintiff has purchased the property from the rightful owner. Therefore, he has proved his title over the suit property. Accordingly, Issue No.1 is answered in the Affirmative.
25. ISSUE NO.2 and ADDL. ISSUE NO.1:-
These issues are interlinked and they are taken together for common discussion to avoid repetition.
Under the said issues the plaintiff has sought for possession and he has to prove the construction made by the defendant is illegal construction. While discussing Issue No.1, the court come to conclusion that, the plaintiff has absolute title over the suit property, where as the defendant had purchased the property shown in the written statement the person who had no title on it. The plaintiff is claiming the 28 O.S.No.6673/2018 possession on the basis of the title. Therefore, as per Article 65 of the Limitation Act, the plaintiff has to file the suit within 12 years. In fact, the plaintiff has filed the suit well within the Limitation.
26. It is the contention of the plaintiff that, due to ill- health of his wife he was not attended the suit schedule property properly in time to time. After some time, he had been to the suit schedule property and noticed that, the defendant without any authority is proceeding with the construction, so he requested the defendant to stop the construction, but inspite of it, he proceeded with the construction. As per the records, this court has granted TI not to proceed with the further construction. However, the defendant herein has questioned the same before the Hon'ble High Court by filing MFA.NO.1911/2019 (CPC) C/W MFA.NO.1910 & 1912/2019, wherein the appeal was disposed of with some directions and also with the following observations:
iv) Any construction put-up by the appellant/defendant on the suit schedule property shall be subject to the final out come of the suit and appellant/defendant shall not claim any equity over the same.
Appellant / defendant shall not claim any equity over the same. Appellant / defendant 29 O.S.No.6673/2018 is permitted to carry out minor works to the building on the suit schedule property.
The defendant without confirming his title over the written statement property, inspite of the resistance made by the plaintiff he has proceeded with the construction and completed the building as shown in the Ex.D19. When the defendant has no title over the property whatever the construction made by him is nothing but a illegal construction. When the plaintiff has proved his title over the suit property, he is entitled for possession of the same. Accordingly, Issue No.2 and Addl. Issue No. 1 is answered in the Affirmative.
27. ISSUE NO.3:-
The plaintiff has also sought for mandatory injunction. This issue has been framed as per the relief sought by the plaintiff at relief No.(b), wherein the plaintiff has sought for demolition of building constructed over the suit schedule property. Admittedly, the construction made by the defendant is illegal construction and there is a direction from Hon'ble High Court in MFA.NO.1911/2019(CPC) c/w.1910/19 and 1912/19 dated 16-06-2021 there is a direction that, the defendant shall claim any equity. Under such circumstances, instead of demolishing the building as shown in Ex.D19 which is new building, it is just and proper direct the defendant to hand over the possession. Accordingly, the plaintiff is not 30 O.S.No.6673/2018 entitled for Mandatory Injunction. Accordingly, Issue No.3 is answered in the Negative.
28. ISSUE NO.4:-
The plaintiff has proved his title over the suit schedule property by producing documentary evidence. The vendor's vendor of the plaintiff had purchased the property from the person i.e., N.Gopi who had no title over it at the time of selling the property. Therefore, the claim of the defendant under Ex.D9 that he has title over the suit property cannot be accepted. The documentary evidence relied on by the defendant has no consequences. Accordingly, the plaintiff is entitled for relief as claimed in the plaint. Hence, Issue under reference is answered in the Affirmative.
29. ISSUE NO.5:-
For the aforesaid reasons and discussions, I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby decreed with costs, as Under:-
2. It is declared that the plaintiff is the absolute owner of the suit schedule property.
3. The defendant is hereby directed to handed over the possession of the suit schedule property within 3 months from the date of this order.31 O.S.No.6673/2018
4. It is declared that, Release deed dated 18-11-2014, 28-11-2014 and 21-09-2017 are Null and void and same are canceled.
5. Office is directed to issue intimation to concerned Sub-
Registrar to cancel the Release deed dated 18-11-2014, 28-11-2014 and 21-09-2017 by making proper entry in the relevant book and also in the online mode.
6. Draw Decree Accordingly.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open Court on this the 22nd day of February, 2023).
(BALAGOPALAKRISHNA) XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE List of Witnesses examined for the plaintiff :
P.W.1 - L.S.Ramesh Kumar P.W.2 - N. Ramesh.
List of Documents exhibited for the plaintiff:
Ex.P.1 Original sale deed dated 09.06.2004 executed by Sri. D Venugopal and Smt. R. Krishnamma in favor of PW.1 in respect of suit schedule property.
Ex.P.1(a) Signatures of PW.1
32 O.S.No.6673/2018
to (f)
Ex.P.2 Original sale deed dated
08.04.1992 executed by
Sri. H. Narayanappa and his
children in favor of
Sri. D Venugopal and
Smt. R. Krishnamma in respect of
suit schedule property.
Ex.P.3 Certified copy of encumbrance
certificate from 01.04.1975 to
31.03.2004 in the name of
Sri. D Venugopal and
Smt. R. Krishnamma.
Ex.P.4 Certified copy of encumbrance
certificate from 24.05.2004 to
05.09.2017 in the name of Sri. L.
S Ramesh Kumar (PW.1)
Ex.P.5 Certified copy of encumbrance
certificate from 01.04.2017 to
28.08.2018.
Ex.P.6 Khata certificate dated 04.09.2017
in the name of PW.1.
Ex.P.7 Khata certificate dated 23.08.2018
in the name of PW.1.
Ex.P.8 Khata extract dated 04.09.2017 in
the name of PW.1.
Ex.P.9 Khata extract dated 23.08.2018 in
the name of PW.1.
Ex.P.10 Tax paid receipts (5 in Nos) Ex.P.11 Self assessment of property tax for the year 2017-18 33 O.S.No.6673/2018 Ex.P.12 Tax paid receipt for the year 2018-
19.
Ex.P.13 Certified copy of plan approved copy issued by office of the Peenya Group Panchayath.
Ex.P.14 copy of complaint dated
23.08.2018.
Ex.P.15 Certified copy of FIR dated
03.09.2018.
Ex.P.16 copy of complaint dated
23.08.2018.
Ex.P.17 Khata certificate in the name of Sri. D Venugopal and Smt. R. Krishnamma.
Ex.P.18 Special notice issued by Assistant Revenue Officer, Corporation of City, Bengaluru.
Ex.P.19 Certificate issued by Assistant Revenue Officer, BBMP.
Ex.P.20 Certified copy of Tax Demand Register in the name of Sri. D Venugopal and Smt. R. Krishnamma.
Ex.P.21 Copy of complaint before BBMP dated 07.09.2018.
Ex.P.22 4 photographs
to 25
Ex.P26 C.D
34 O.S.No.6673/2018
Ex.P27 65B certificate
Ex.P.28 Khatha extract in the name of plaintiff.
Ex.P.29 Khatha certificate.
Ex.P.30 Certified copy of property card issued by department of survey, settlement and land records in respect of suit schedule property.
Ex.P.31 Certified copy of field book of detail mapping standing in the name of vendor Sri. Hanumantharayappa.
Ex.P.32 Certified copy of survey sketch.
Ex.P.33 Certified copy of mother deed dated 08.04.1992 executed by Sri. H Narayanappa in favor of Smt. Krishnamma and Sri. Venugopal in respect of suit schedule property (Ex.P.2 original sale deed already marked).
Ex.P.34 Medical report issued by St. John's medical college hospital dated 19.12.2015.
Ex.P.35 Doctor certificate (Rao's Uro
Care)
Ex.P.36 Police complaint dated
20.09.2018.
Ex.P.37 Complaint to police commissioner dated 16.10.2018.
35 O.S.No.6673/2018Ex.P.38 Certified copy of Plaintiff statement dated 22.09.2018 issued by Asst. commissioner of police, Yeshwanthpur.
Ex.P.39 Certified copy of defendants statement dated 22.09.2018 issued Asst. commissioner of police, Yeshwanthpur.
Ex.P.40 Certified copy of endorsement issued by Asst commissioner of police, Yeshwanthpur.
Ex.P.41 RTI application along with postal receipt and postal order.
Ex.P.42 Certified copy of Track
Consignment issued by
department of posts.
Ex.P.43 RTI application along with postal receipt and postal order.
Ex.P.44 Postal Acknowledgement.
Ex.P.45 Letter dated 16.04.2019 issued by BBMP to L.S.Ramesh Kumar.
Ex.P.46 Opened Postal cover sent from BBMP to L.S.Ramesh Kumar.
Ex.P.47 RTI application along with postal receipt and postal order.
Ex.P.48 Postal Acknowledgement.
Ex.P.49 RTI application along with postal receipt and postal order.
36 O.S.No.6673/2018Ex.P.50 Postal Acknowledgement.
Ex.P51 Endorsement dated :21-12-2021.
Ex.P52 to 3 tax paid receipts P54.
Ex.P55 to 4 photos
58
Ex.P59 C.D
Ex.P60 Ltr dated 30-12-2021
Ex.P61 Certified copy of book
Ex.P62
Ex.P63 Information submitted by BBMP
Office to G.Giriyappa sought
under RTI.
List of Witnesses examined for the Defendant :
DW.1 :- Chand Pasha.M List of Documents exhibited for the defendant:
EX.D-1 Letter dated 11-11-2019 issued from BBMP to Giriyappa.
Ex.D-2 BBMP Letter dated 18-07-2022 regarding payment of upto day tax till 2022-2023 by one Sri. Chand Pasha.
Ex.D-3 (Submission of Information by letter dated 22-07-2022 by BBMP sought under RTI.) Tax Assessment Register Extract in respect of houses and vacant sites.
Ex.D-4 Khatha Registration Application form (confronted in the cross of PW.2) 37 O.S.No.6673/2018 Ex.D-5 Endorsement dated 31-12-2018 (confronted in the cross of PW.2) Ex.D-6 Uttara Pathra (confronted in the cross of PW.2) Ex.D-7 Tax paid receipt (confronted in the cross of PW.2) Ex.D-8 Tippani issued by BBMP.
(confronted in the crossof PW.2) Ex.D-9 Absolute sale deed dated 21-09-2017.
Ex.D-10 Encumbrance certificate Ex.D-11, 12 Khatha Certificate & Extract.
Ex.D-13 Absolute sale deed dated 28-11-2014 Ex.D-14 Release Deed dated 18-11-2014.
Ex.D-15 Building plan / sketch
Ex.D16 Electricity bills (4 in Number)
Ex.D17 Application form for Water supply
connection.
Ex.D18 Electricity bills
Ex.D19 & 19(a) Photographs & CD
Ex.D20 House Warming ceremony card
Ex.D21 letter from DHFL Pramerica
Life Insurance.
Ex.D22 BBMP Letter dated 01-02-2019.
Ex.D23 Copy of Mysore Gazette dated
38 O.S.No.6673/2018
October 19, 1967.
Ex.D24 Sketch
Ex.D25 Property card
Ex.D26 details issued by ADLR
XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.Digitally signed by BALAGOPALAKRISHNA
BALAGOPALAKRISHNA Date: 2023.02.25 13:02:30 +0530 39 O.S.No.6673/2018 Judgment pronounced in open court vide separate order & the operative portion of the same is as under:-
ORDER The suit of the plaintiff is hereby decreed with costs as Under:-
2. It is declared that the plaintiff is the absolute owner of the suit schedule property.
3. The defendant is hereby directed to handed over the possession of the suit schedule property within 3 months from the date of this order.
4. It is declared that, Release deed dated 18-11-2014, 28-11-2014 and 21-09-2017 are Null and void and same are canceled.
5. Office is directed to issue intimation to concerned Sub-
Registrar to cancel the Release deed dated 18-11-2014, 28-11-2014 and 21-09-2017 by making proper entry in the relevant book and also in the online mode.
6. Draw Decree Accordingly.
XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
40 O.S.No.6673/2018