Bangalore District Court
M/S.Cauvery Medical Centre Pvt. Ltd vs Sri.S.V.Subramanya (Major) on 30 November, 2015
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENT IN SUITS
IN THE COURT OF THE XIII ADDL. CITY CIVIL &
SESSIONS JUDGE,
Form MAYOHALL UNIT, BANGALORE.
No.9 (Civil)
Title sheet for Present: Sri. B.NARAYANAPPA, M.A, LL.B.,
Judgment in
suits (R.P.91) (Name of the Presiding Judge)
OS NO.25344/2007
(CCH-22)
Plaintiff:-
M/s.Cauvery Medical Centre Pvt. Ltd., A Company registered under the Companies
Act, 1956, Having its office at No.43/2, Sahakara Nagar, Hebbal Lake, Bellary Road,
BANGALORE-560 092. Rep. by its DIRECTOR SRI.B.V.Satyanarayana,
S/o.VenkataKrishnaiah, Aged about 73 years.
(Plaintiff: By Advocate Sri. N.S.Satish Chandra)
V/s.
Defendant:-
SRI.S.V.SUBRAMANYA (Major), Father's name not known to the plaintiff,
Proprietor Sri.Vijaya Enterprises, No.3-57, Anna Nagar, EAST CHENNAI-600 702.
(Defendant: By Advocate Sri.G.Sukumaran)
Date of Institution of the suit 09.02.2007
Nature of the (Suit or pro-note, suit for Permanent Injunction
declaration and possession, suit for
injunction, etc.)
Date of the commencement of recording of 19.6.2014
the Evidence.
Date on which the Judgment was 30.11.2015
pronounced.
Year/s Month/s Day/s
Total duration 08 09 21
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BANGALORE.
2 OS No.25344/2007
JUDGMENT
The plaintiff has filed this suit against the defendant seeking relief of Permanent Injunction restraining the defendant or anybody claiming under him from interfering with the peaceful possession and enjoyment of the suit schedule 'B' property by the plaintiff. Further, for Permanent Injunction against the defendant restraining the defendant or anybody claiming under him from causing any hindrance or obstructions or in any way changing the nature of the suit schedule 'B' property.
2. Brief facts of the plaintiff's case are that:
The plaintiff is a registered company registered under the Companies Act and the plaintiff company is formed to bring Medical tourism to Karnataka set up by about 150 Doctors of USA headed by Nephrologists Dr.G.R.Ravikumar from Karnataka, presently practicising at California in USA and the plaintiff company set up in the year 1988 with a view to set up a medical centre in the name and style as "CAUVERY MEDICAL CENTER" and applied with KIADB 3 OS No.25344/2007 for grant of land to enable the plaintiff company to construct a Hospital building and for creation of necessary infrastructure. The KIADB was pleased to grant 6.7 Acres of land adjacent to NH-7, Bellary Road, in Sy.No.43/2, Near Hebbal Lake, Bangalore. The said land bearing Sy.No.43/2 originally belonged to Sri.Nanjappa. Thereafter, the same has been acquired by KIADB and possession was delivered to the plaintiff on 4.6.1988. The plaintiff company had paid a sum of Rs.30,43,545/- to KIADB and Possession certificate was issued in favour of the plaintiff company. The plaintiff company obtained loan from HUDCO for the purpose of its project. In between the Sy.No.43/2 and NH-7, there is Sy.No.43/3, measuring 2 acres 7 guntas. Out of the said Sy.No.43/3, 2 acres 2.2 guntas belongs to M/s.M.G.Brothers, a partnership firm. Rough sketch produced clearly shows that, there is 3 ½ guntas of land in Sy.No.43/3, which is abutting to Sy.No.43/2. The said 3 ½ guntas of land in Sy.No.43/3 was belonging to Rayappanahalli Nanjappa. Suit schedule 'A' property was belonging to the plaintiff company. About 8 guntas of land, which is 4 OS No.25344/2007 sold in favour of the plaintiff company by KIADB under Lease-cum-sale agreement dated: 16.6.2010, morefully described as suit schedule 'B' property. The predecessor-in-title of the plaintiff and M/s.M.G.Brothers have purchased suit schedule 'B' property with an intention of using it as road for the convenience of the occupants of both the Sy.Nos. 43/2 and 43/3. The plaintiff also using suit schedule 'B' property as a road, eversince the land was granted in favour of it [plaintiff] KIADB. The defendant is a total stranger, came near the suit schedule 'B' property in the 3rd week of January-2007 and claimed that, he is the owner of the same. The plaintiff company was shocked and surprised at the claim of the defendant. Again on 6.2.2007, the defendant tried to demolish the existing compound wall on suit schedule 'B' property and tried to encroach upon the same. The plaintiff company lodged a complaint to the jurisdictional police, but, they did not take any action. The KIADB with an intention of acquiring Sy.Nos. 43/3 and 43/4 issued Preliminary Notification dated: 2.2.2007. The entire suit schedule 'B' property forms part of 5 OS No.25344/2007 acquisition by KIADB. The KIADB took possession of 8 guntas including suit schedule 'B' property on 30.3.2010 and allotted 8 guntas of land including suit schedule 'B' property in favour of the plaintiff on 18.5.2010 and issued Possession certificate on 10.6.2010 and an Agreement was entered in between the KIADB and the plaintiff on 16.6.2010. Thus, the plaintiff has become the absolute owner of 8 guntas of land i.e., suit schedule 'B' property apart from suit schedule 'A' property. The plaintiff company apprehends continuous obstructions from the defendant. Hence, this suit.
3. After registration of this suit, suit summons were issued to the defendant. In-response to the summons, the defendant appeared before this court through his counsel and filed written-statement denying all material averments made in the plaint and contended that, the possession of the Property was delivered to the defendant by Recovery Officer of the Debts Recovery Tribunal, Chennai on 4.9.2006 and delivered possession to the defendant. There is no truth in the claim of the plaintiff that, the defendant tried to demolish suit schedule 'B' 6 OS No.25344/2007 property and the alleged police complaint is misconceived. The plaintiff is not the lawful owner of the suit schedule 'B' property. The defendant is the absolute owner and in possession of the Property bearing Sy.No.43/3, measuring 2 Acres 3 ½ Guntas situated in Hebbal Village, Kasaba Hobli, Bangalore North Taluk. The description of the plaintiff's suit schedule 'B' property and the defendant's Property are two different properties. It has nothing to do with the plaintiff's suit schedule 'B' property. The present suit is nothing, but, to black-mail the defendant for extortion of money. For all these reasons, the defendant prays to dismiss the suit of the plaintiff.
4. On the basis of the above Pleadings, following Issues have been framed:
1) Whether the plaintiff proves its lawful possession and enjoyment of suit 'B' schedule property as on the date of the suit?
2) Whether the plaintiff proves the alleged interference by the defendant in respect of 'B' schedule property?
3) Whether there is a cause of action for the suit?
4) Whether the plaintiff is entitle for the reliefs sought for? 7 OS No.25344/2007
5) What decree or order?
5. The plaintiff company in order to prove its case has got filed affidavit of its Director by way of examination in chief. Same was taken as PW1 and got marked the documents at Exs.P1 to P20 and closed the evidence of the plaintiff. On the other hand, the defendant has not cross-examined PW1 nor adduced any oral evidence nor produced any documents on his behalf.
6. I have heard the arguments of the learned counsel for the plaintiff. The defendant and his counsel were not present on the date of arguments and not canvassed arguments on behalf of the defendant. Hence, this case was posted to this day for judgment..
7. My findings to the above Issues are as follows:
Issue No.1: In the affirmative Issue No.2: In the affirmative Issue No.3: In the affirmative Issue No.4: In the affirmative Issue No.5: As per the final orders, for the following:8 OS No.25344/2007
REASONS
8. ISSUE NOS. 1 AND 2:- PW1 in his Affidavit evidence has reiterated and re-affirmed the contents of the plaint averments and has produced the documents at Exs.P1 to P20. The description of the documents at Exs.P1 to P20 are as under:
Ex.P1 : Copy of the Resolution
Ex.P2 : Number jumped
Ex.P3 : Letter
Ex.P4 : Certified copy of the possession certificate
Ex.P5 : Certified copy of the Sale Deed
Exs.P6 to : Tax paid receipts
P11
Ex.P12 : Gazette Notification
Ex.P13 : Allotment Letter
Ex.P14 : Standard conditions attached to the allotment letter
Ex.P15 : Possession certificate
Ex.P16 : Area statement
Ex.P17 : Sketch
Ex.P18 : Letter
Ex.P19 : Lease cum sale agreement
Ex.P20 : Certified copy of the Sale Deed
9 OS No.25344/2007
9. In this case, though the defendant appeared before this court through his counsel and filed written-statement, but, he has not even cross examined PW1 nor adduced his oral evidence nor produced any documents on his behalf. Thus, it is crystal clear that, the defendant has not at all placed any contrary materials on record to discard or disbelieve the case of the plaintiff. If at all the case of the plaintiff company is not correct, the defendant would have definitely cross-examined PW1 and would have adduced his oral evidence and produced documents on his behalf, but, he has not done so. So, it is crystal clear that, the affidavit evidence of PW1 has remained unchallenged.
10. It is the specific case of the plaintiff that, the plaintiff is a company registered under the Companies Act and the plaintiff company is formed to bring Medical tourism to Karnataka set up by about 150 Doctors of USA headed by Nephrologists Dr.G.R.Ravikumar from Karnataka, presently practicising at California in USA and the plaintiff company set up in the year 1988 with a view to set up a medical centre in the name and style as "CAUVERY MEDICAL CENTER" and applied with KIADB for grant of land to 10 OS No.25344/2007 enable the plaintiff company to construct a Hospital building and for creation of necessary infrastructure. Accordingly, the KIADB has granted 6.7 Acres of land to the plaintiff adjacent to NH-7, Bellary Road, in Sy.No.43/2, Near Hebbal Lake, Bangalore and Possession certificate was issued in favour of the plaintiff company. The plaintiff company had paid a sum of Rs.30,43,545/- to KIADB for the said land and agreement of sale was entered into between the KIADB and the plaintiff on 17.10.1988. The plaintiff company by deposit of title deeds of Sy.No.43/2 has obtained loan from HUDCO for the purpose of its project. In between the Sy.No.43/2 and NH-7, there is Sy.No.43/3, measuring 2 acres 7 guntas. Out of the said Sy.No.43/3, 2 acres 2.2 guntas belongs to M/s.M.G.Brothers, a partnership firm. There is 3 ½ guntas of land in Sy.No.43/3, which is abutting to Sy.No.43/2. The said 3 ½ guntas of land in Sy.No.43/3 is being used by the plaintiff company for ingress and egress to the land of the plaintiff company. The KIADB has sold an extent of 8 guntas of land in favour of the plaintiff company under the Lease-cum-Sale deed 11 OS No.25344/2007 dated: 16.6.2010, which is morefully described as suit schedule 'B' property. The plaintiff company is the owner of suit schedule 'B' property. The defendant is a total stranger, came near the suit schedule 'B' property in the 3rd week of January-2007 and claimed that, he is the owner of the same. Again on 6.2.2007 also, the defendant tried to demolish the existing compound wall on suit schedule 'B' property and tried to encroach upon the same. The plaintiff company lodged a complaint to the jurisdictional police, but, they did not take any action. Hence, the plaintiff has constrained to file the present suit against the defendant seeking relief of Permanent Injunction.
11. On perusal of Ex.P4-Possession Certificate issued by KIADB, which clearly goes to show that, 6 Acres 30 Guntas of land in Sy.No.43/2 of Hebbal Village has been handed over to the plaintiff and Ex.P4-Possession certificate has been issued in favour of the plaintiff. Ex.P5-Certified copy of the Sale Deed clearly goes to show that, KIADB had sold suit schedule 'A' property in favour of the plaintiff for a sale consideration amount of Rs.30,74,288/-. So, by virtue of 12 OS No.25344/2007 Ex.P5-Sale Deed executed by KIADB in favour of the plaintiff, the plaintiff become the owner of suit schedule 'A' property. Exs.P6 to P11-Tax paid receipts clearly goes to show that, the plaintiff company has paid tax with respect to suit schedule 'A' property to BBMP and the plaintiff company is in lawful possession of suit schedule 'A' property. Ex.P12-Karnataka Gazette clearly goes to show that, KIADB had acquired land bearing Sy.No.43/3 measuring 3 ½ guntas and land bearing Sy.No.43/4 measuring 4 ½ guntas. Ex.P13-Allotment Letter clearly goes to show that, KIADB has allotted an extent of 8 guntas in Sy.Nos.43/3P and 43/4P in favour of the plaintiff company and issued Allotment Letter as per Ex.P13. Ex.P15-Possession Certificate issued by KIADB clearly goes to show that, possession of suit schedule 'B' property was handed over to the plaintiff by KIADB. Exs.P16 and p17 are the sketches in respect of suit schedule 'B' property. Ex.P18- Letter addressed to the plaintiff by KIADB with respect to the registration of Lease-cum-sale agreement in respect of suit schedule 'B' property. Ex.P19-Lease-cum-Sale agreement entered into between 13 OS No.25344/2007 KIADB and the plaintiff company with respect to suit schedule 'B' property, under which the plaintiff has a paid a sum of Rs.28,62,720/- to KIADB in respect of suit schedule 'B' property for having allotted suit schedule 'B' property by KIADB and Ex.P19 was came to be executed on 16.6.2010 for the period of 10 Years with a condition that, the lessor i.e., KIADB shall sell suit schedule 'B' property to the lessee i.e., the plaintiff company at the end of 10 years. So, from Ex.P12-Karnataka Gazette, it is crystal clear that, KIADB had acquired suit schedule 'B' property and allotted the same to the plaintiff by Allotment Letter, which is marked at Exs.P13 and KIADB issued Possession certificate as per Ex.P15 in favour of the plaintiff company and a Lease-cum-Agreement of sale was entered into between the KIADB and the plaintiff company with respect to suit schedule 'B' property as per Ex.P19 on 16.6.2010 for a period of 10 years with a condition that, after expiry of 10 years, KIADB shall sell suit schedule 'B' property in favour of the plaintiff. Therefore, from Exs.P12 to P19, it is crystal clear that, the KIADB had allotted suit schedule 'B' 14 OS No.25344/2007 property to the plaintiff and the plaintiff is in possession and enjoyment of suit schedule 'B' property and using the same as ingress and egress to suit schedule 'A' property. Therefore, I am of the considered view that, the plaintiff has proved its lawful possession and enjoyment over suit schedule 'B' property, as on the date of filing of the present suit.
12. The plaintiff has contended that, the defendant has no right, title or interest over the suit schedule 'B' property, inspite of it, during the 3rd week of January-2007, the defendant came near the suit schedule 'B' property and claimed that, he is the owner of the same and again on 6.2.2007, the defendant came near the suit schedule 'B' property and tried to demolish the existing compound wall. Therefore, the plaintiff resisted the illegal acts of the defendant and approached the jurisdictional police, but, the jurisdictional police have not taken any action against the defendant. Hence, the plaintiff has constrained to file the present suit seeking relief of Permanent Injunction against the defendant.
15 OS No.25344/2007
13. Though the defendant has filed his written-statement, but, he has not at all cross-examined PW1 nor adduced his oral evidence nor produced any documents on his behalf in order to establish his right over suit schedule 'B' property. Therefore, it is crystal clear that, the defendant has not established his right over suit schedule 'B' property. PW1 in his affidavit evidence has also clearly stated that, the defendant is trying to interfere with the peaceful possession and enjoyment of suit schedule 'B' property stating that on 6.2.2007 the defendant came near suit schedule 'B' property and tried to demolish the existing compound wall. Therefore, the plaintiff company have lodged a complaint to the jurisdictional police, but, the jurisdictional police have failed to come to their rescue. So, from the plaint averments and from the affidavit evidence of PW1, it is crystal clear that, the plaintiff has proved the alleged interference of the defendant over suit schedule 'B' property. Therefore, I answer Issue Nos.1 and 2 in the affirmative. 16 OS No.25344/2007
14. ISSUE NO.3:- The defendant in his written-statement has taken a contention that, there is no cause of action for this suit. Merely because of taking such a contention in the written-statement, without any basis, it does not mean that, there is no cause of action arose for the plaintiff to file the present suit. The plaintiff has contended in the plaint that, cause of action for the suit arose on 4.6.1988 when the plaintiff was put in possession by the KIADB and thereafter on 17.10.1988 when an Agreement was entered by the KIADB with the plaintiff and subsequently in the 3rd week of January-2007. Further the cause of action arose for the suit on 18.5.2010 when the KIADB issued allotment letter in respect of suit schedule 'B' property in favour of the plaintiff, on 10.6.2010 when the possession certificate was issued and finally on 16.6.2010 when the agreement in respect of suit schedule 'B' property was entered. When such being the clear contention of the plaintiff regarding cause of action and when the plaintiff has clearly stated in his plaint that, in the 3rd week of January-2007, the defendant came near the suit schedule 'B' property and claimed his ownership 17 OS No.25344/2007 over the same, as such, cause of action for the present suit arose in the 3rd week of January 2007 also. Therefore, the court has to look into the intention of the plaintiff to file the above suit. So, according to the plaintiff, in the 3rd week of January-2007, the defendant came near suit schedule 'B' property and claimed his ownership over the same. Therefore, according to the plaintiff, cause of action arose on 3rd week of January-2007. So, it is crystal clear that, cause of action was arose for the plaintiff to file the above suit. Therefore, the plaintiff has come up with the present suit against the defendant. Under such circumstances, the contention of the defendant that, there is no cause of action arose for the plaintiff to file the present suit, holds no water. Hence, I hold that, there is cause of action for this suit. Hence, I answer Issue No.3 in the affirmative.
15. ISSUE NO.4:- The plaintiff has filed the present suit seeking relief of Permanent Injunction against the defendant. I have already come to the conclusion and answered Issue Nos. 1 and 2 in the affirmative holding that, the plaintiff has proved its lawful possession 18 OS No.25344/2007 over suit schedule 'B' property as on the date of the present suit and the alleged interference by the defendant with respect to suit schedule 'B' property. Therefore, I am of the considered view that, the plaintiff is entitled to the relief of Permanent Injunction, as sought for in the plaint. Hence, I answer Issue No.4 in the affirmative.
16. ISSUE NO.5:- In-view of the reasons stated on Issue Nos.1 to 4 above, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby decreed.
2) The defendant, or anybody claiming under him are hereby restrained from interfering with the plaintiff's peaceful possession and enjoyment of suit schedule 'B' property and further the defendant or anybody claiming under him are hereby restrained from causing any hindrance or obstructions to suit schedule 'B' property, by way of Permanent Injunction.
3) No order as to costs.19 OS No.25344/2007
4) Draw decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected and then pronounced by me in the open court on this the 30th day of November 2015).
(B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
SCHEDULE A-PROPERTY All that piece and parcel of the property bearing Sy.No.43/2, measuring 6 Acres 30 Guntas situated at NH-7 [Bellary Road], Sahakara Nagar (earlier known as Hebbal), bounded on the East by : Sy.No. 43/3 & B-schedule property (common Passage) West by : CMC School & Private Property North by : Private Property (Sy.No.1A-1 & 1A-2) South by : Cart Road & Military Farm Marked in red as A, B, C and D in the annexed sketch.
20 OS No.25344/2007
SCHEDULE B-PROPERTY All that piece and parcel of land known as Sy.No.43/3p (3 ½ guntas) & Sy.No.43/4p (4 ½ guntas) in Hebbal Village, Kasaba Hobli, Bangalore North Taluk, Bangalore Urban District admeasuring 08 guntas and bounded as follows: that is to say, On or towards the North by - Sy.No.43/1-A2 On or towards the South by - Sy. No.43/4 On or towards the East by - NH-7 Road Boundary On or towards the West by - Sy.No.43/2 XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, BANGALORE.
ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
P.W.1 : B.V.Satyanarayana 19.6.2014 21 OS No.25344/2007 LIST OF EXHIBITS MARKED FOR THE PLAINTIFF: Ex.P1 : Copy of the Resolution Ex.P2 : Number jumped Ex.P3 : Letter Ex.P4 : Certified copy of the possession certificate Ex.P5 : Certified copy of the Sale Deed Exs.P6 to : Tax paid receipts P11 Ex.P12 : Gazette Notification Ex.P13 : Allotment Letter Ex.P14 : Standard conditions attached to the allotment letter Ex.P15 : Possession certificate Ex.P16 : Area statement Ex.P17 : Sketch Ex.P18 : Letter Ex.P19 : Lease cum sale agreement Ex.P20 : Certified copy of the Sale Deed LIST OF WITNESSES EXAMINED AND EXHIBITS MARKED FOR THE DEFENDANT: NIL XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT: BANGALORE. 22 OS No.25344/2007 30.11.15 Pltff: NSSC Deft: GSK Judgement Judgement pronounced in the open court (Vide separate detailed Judgement) Suit of the plaintiff is hereby decreed. 2) The defendant, or anybody claiming under him are hereby restrained from interfering with the plaintiff's peaceful possession and enjoyment of suit schedule 'B' property and further the defendant or anybody claiming under him are hereby restrained from causing any hindrance or
obstructions to suit schedule 'B' property, by way of Permanent Injunction.
3) No order as to costs.
4) Draw decree accordingly.
XIII ADDL.CITY CIVIL AND SESSIONS 23 OS No.25344/2007 JUDGE, MAYOHALL UNIT: BANGALORE.
24 OS No.25344/2007