Bangalore District Court
Smt.N.Lakshmi vs Sri.Uma Maheshwari on 17 November, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK,B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 17TH DAY OF NOVEMBER 2015
O.S.No.2287/2009
Plaintiff:- Smt.N.Lakshmi,
w/o.N.Ramakrishna
aged about 26 years
r/o.No.58/59,
1st Main Road,
18th cross (Lakshmi
Temple Cross Road),
Bhuvaneshwarinagar,
T.Dasarahalli,
Bengaluru-560057.
(By Sri.Veerendra Patil,
Advocate)
-VS-
Defendants:- 1. Sri.Uma Maheshwari
Seva Trust (R)
T.Dasarahalli,
Bengaluru -57,
2 O.S.No.2287/2009
Represented by its
President,
Sri.M.Maruthi
s/o. Muniyappa,
aged about 50 years,
Umamaheswari Community
Bhavan
T.Dasarahalli,
Bengaluru -560057.
2. M.Narasimaiah
s/o. Muniyappa,
aged about 55 years,
Ex.V.P.Mmember,
No.20/10, Hesaraghatta
Road, Ward No.5,
T.Dasarahalli,
Bengaluru -560057.
3. G.Muniswamy
s/o. Gurappa
aged major,
No.642, Gurappa
Building, Near
Basaveshwara Temple,
T.Dasarahalli,
Bengaluru -560057.
4. B.M.Narasimhamurthy,
s/o. D.Muniswamayya
aged about 54 years,
3 O.S.No.2287/2009
No.48, M.T.S.Colony,
Near Mutturayappa Temple,
T.Dasarahalli,
Bengaluru -560057.
5. K.Kemparaju
s/o. Late Kenchappa,
aged about 33 years,
No.8/4, Kenchappa
Building,
Behind New Majid,
T.Dasarahalli,
Bengaluru -560057.
(By Sri. L.S.C & Otrs,,
Advocates)
Date of Institution of the suit : 31/03/2009
Nature of the suit : Declaration & Permanent
injunction
Date of commencement of
recording of the evidence : 17/08/2010
Date on which the Judgment was
pronounced : 17/11/2015
Total Duration Years Months Days
: 06 07 17
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
4 O.S.No.2287/2009
J U D G M E N T
This suit is filed by the plaintiff for declaration, possession and permanent injunction against the defendants in respect of the suit schedule property.
2. The case of the plaintiff is that the plaintiff is the owner in possession of the site bearing No.1 formed in Sy.No.4 of Dasarahalli village, Yeshwanthpura Hobli, Bengaluru North Taluk now in the jurisdiction of BBMP Bengaluru as described in the schedule annexed to the plaint. The Malleshwaram Tailoring Co-Operative Society Limited has purchased the land bearing Sy.No.4 of Dasarahalli village, under the registered Sale Deed dated.27.4.1973 and the said land is converted by the conversion order dated.28.04.1976 passed by the office of the Deputy Commissioner, Bengaluru District, Bengaluru. The said Society being the owner of the 5 O.S.No.2287/2009 said land has formed the layout along with other lands owned by society and the suit schedule property is one of sites formed in the said land. One Mahadevaro had purchased the suit schedule site under the registered Sale Deed dated.16.05.1977. Consequent upon such purchase since the schedule property was in the jurisdiction of Chokkasandra Panchayath and khatha of the schedule property is entered in the name of Mahadeva Rao who being the owner has executed the General Power of Attorney in favour of Nanjappa i.e., the father of the plaintiff on 30.3.1995. In turn, Nanjappa executed registered Gift Deed dated.28.03.2000 in favour of the plaintiff. The plaintiff has paid betterment charges to the jurisdictional City Municipal Council on 10.8.2000 and khatha is also entered in the name of plaintiff in the records of the City Municipal Council, T.Dasarahalli, and paying the taxes regularly. Now 6 O.S.No.2287/2009 the schedule property is coming under the jurisdiction of BBMP. Khatha also entered in the name of the plaintiff in the records of it. The particulars of power of attorney are not mentioned in the Gift Deed in favour of the plaintiff and registered Rectification Deed dated.4.8.2008 is executed. Thereafter the original owner Mahadevarao has also executed the registered consent/confirmation deed consenting for the gift in favour of the plaintiff dated.7.8.2008.
3. The original owner has filed O.S.No.239/2006 against the same persons who tried to interfere with the possession of the schedule property and subsequently that suit came to be withdrawn. The facts being so, the defendants during the 1st week of the January 2009 along with some of the persons claiming to be the members of the defendant No.1 Trust came near the suit schedule property 7 O.S.No.2287/2009 and tried to encroach upon the property. The neighbours and family members of the plaintiff intervened and then the defendants went away threatening the plaintiff. The defendants with 15-20 persons came near the suit property again on 12.01.2009 and tried to encroach upon the suit schedule property by putting paint on the fence put up by the plaintiff and tried to dispossess the plaintiff but the defendant could not succeed due to intervention of neighbours and family members of the plaintiff. Even then, the defendants and their henchmen went away threatening the plaintiff with dire consequences. The plaintiff went to police station for complaining the same, but the policed have informed her that this is a civil case and advised to approach Civil court. Thereafter on 14.01.2009, the defendants along with 30-40 persons came near the suit schedule property and created havoc and lodged police complaint against the father 8 O.S.No.2287/2009 of the plaintiff and four others alleging that there was Katumbaraya Temple and the same is demolished by them and on that complaint the police have arrested the father of the plaintiff on the same day when there were no major male members, the defendants and their henchmen have started putting up the construction to grab the schedule property without their being license issued by the jurisdictional authority illegally on the suit schedule property belonging to the plaintiff by illegally dispossessing the plaintiff. The defendants have got no right in the suit property in any manner either to dispossess the plaintiff or to put up any illegal structures. The defendants have taken illegal electricity connection. Defendant No.2 is also trying to put up the residential building in the portion of the schedule property to make wrongful gain. Hence the plaintiff has constrained to file the suit to declare that the plaintiff is a 9 O.S.No.2287/2009 lawful owner of the suit schedule property and to direct the defendants that the plaintiff be put in possession of the suit schedule property and for permanent injunction restraining the defendants or anybody claiming under them from putting up any construction on the suit schedule property and alternatively for possession of the schedule property.
4. In response to suit summons, the defendants have appeared through their Learned counsel. Defendant No.1 represented by its President, has filed the written statement thereby denied not only each and every allegations made in the plaint as false, but also submitted that defendant No.1 is a Trust registered under the provisions of Indian Trusts Act and having its registered office at Sri Maheswaramma Samudaya Bhavan, 3rd floor, T.Dasarahalli, Bengaluru -57. The 1st defendant is represented by its President M.Murali to defend the unrighteous, false and 10 O.S.No.2287/2009 illegal claim of the plaintiff herein by its resolution sdtt.17.9.2009. As such, the address furnished by the plaintiff by way of an affidavit under Or.VI, Rule 14A of the CPC is incorrect.
5. The 1st defendant has stoutly denied that the plaintiff is the owner in possession of the suit schedule property. It is also denied that Malleshwaram Tailoring Co- Operative Society Pvt. Ltd., is the erstwhile owner of 2 Acres of land in Sy.No.4 under the registered Sale Deed dated.27.4.1973 and that two Acres was subsequently underwent conversion from agricultural use to non- agricultural purpose by the order dated.28.4.1976 passed by the Deputy Commissioner Bengaluru and in the said land 2 Acres of converted land along with other lands and the suit schedule property is one such site so formed in the said land. 11 O.S.No.2287/2009
6. It is further denied that said Mahadeva Rao purchased the suit schedule property from the said society under the registered Sale Deed dated.16.5.1977 and executed General Power of Attorney in favour of father of the plaintiff on 30.3.1995 and registered Gift Deed dated.28.3.2000 was executed in favour of the plaintiff in pursuant to the said General Power of Attorney.
7. The 1st defendant in turn submits that the said Malleswaram Tailoring Co-Operative Society as referred by the plaintiff is her erstwhile owner from whom Mahadeva Rao stated to have derived the title and the latter had executed an unregistered General Power of Attorney had itself no better title in the suit schedule property and as such, he could not have transferred better title to Mahadeva Rao and consequently that Mahadeva Rao by his unregistered General Power of Attorney could not have 12 O.S.No.2287/2009 transferred the right, title and interest in favour of the plaintiff and consequently, the father of the plaintiff had no power to execute the Gift Deed in favour of the suit schedule property of which Nanjappa was not at all the owner and so also the said Mahadeva Rao and latter's vendor i.e., the said Society. The plaintiff has concocted and created registered Rectification Deed on the consent/confirmation Deed for the purpose of the suit to make wrongful gain at the cost of causing wrongful loss to the defendants vis-à-vis public in general. The 1st defendant has denied that O.S.No.239/2006 filed by the original owner came to be withdrawn subsequently.
8. The 1st defendant has further denied the alleged interference/encroachment by the defendants either on 12.1.2009 or on 14.1.2009 or subsequent to it. Besides it is submitted that the plaintiff is neither the owner of the suit 13 O.S.No.2287/2009 schedule property nor owner of the alleged residential construction situated towards the western portion of the suit schedule property.
9. The 1st defendant has further pleaded that since time immemorial, there is a temple of Katumbaraya in an area measuring 130.45 Sq. Mtrs. i.e., East to West:
11.80+14.00 Mtrs. x North to South: 9.00 x 12.00 Mtr.
bounded by East: Road, West: private property, North by private property and South by street. Now the plaintiff is trying to identify her suit schedule property stating that her alleged suit schedule property measures East to West: 40 ft. and North to South: 25 ft and bounded on the east by Road, west by portion of site No.74 of Sy.No.2/1 belonging to plaintiff, North by Private property bearing site No.2 and South by road. The sketch has been prepared with the help of Surveyor, BBMP. Thus the said temple and surrounding 14 O.S.No.2287/2009 vacant land totally measures 130.45 ft. is in Sy.No.2 and the claim of the plaintiff that her alleged site namely, the suit schedule property which she states is carved out in Sy.No.4 may be elsewhere but the plaintiff has mischievously trying to identify the suit schedule property in the property of the aforesaid temple. The defendant No.1 Trust is managing the said temple and worship is being observed under the supervision of the 1st defendant Trust every year on the Sankarnthi festival in the said place for the welfare of the animals and the devotees from the nook and corner of the city and outsiders. The father of the plaintiff and his men namely, Venkatappa, shankare Gowda, Bettegowda and Mryuthyunjaya Gowda indulged in demolishing the said Katumbaraya Temple and stealthily removed the statute of Katumbaraya Deity and thereby wounded the religious feelings of public and created law and order problem. As 15 O.S.No.2287/2009 such, the defendant and the public persons lodged complaint on 14.1.2009 against the persons which was registered by the jurisdictional police as Crime No.24/2009 for the offences punishable under Sec.295 r/w. Sec.34 of the IPC. The plaintiff is trying to twist the facts of the case. The plaintiff cannot deal with the public property. There is no cause of action to file the suit. The suit is bad for non- joinder of necessary party. The valuation made by the plaintiff and Court Fee paid by her is insufficient and incorrect. Wherefore, it is prayed to dismiss the suit of the plaintiff with costs besides, imposing exemplory costs.
10. On the basis of the pleadings the following issues were framed on 19.11.2009:-
ISSUES
1. Whether plaintiff proves that she is lawful owner of the suit schedule property as contended?16 O.S.No.2287/2009
2. Whether plaintiff further proves that defendant illegally trespassed over the suit property as contended?
3. Whether plaintiff is entitled for declaration and possession of suit property as claimed?
4. Whether plaintiff is entitled for permanent injunction as prayed for?
5. Whether court fee paid is proper?
6. What decree or order?
11. The father of the plaintiff examined on behalf of plaintiff as her General Power of Attorney holder as P.W.1 and adduced documentary evidence from Ex.P1 to P30. Meanwhile the President of the 1st defendant Trust is got examined as D.W.1 and got marked Ex.D1 to D4. The Court Commissioner appointed in this case has submitted his report and also got examined at the instance of the plaintiff as C.W.1 and got marked Ex.C1 to Ex.C4(a). I have heard the 17 O.S.No.2287/2009 counsel for both parties. Besides, the counsel for the plaintiff has filed written arguments.
12. My findings on the above said issues are as under:
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: In the Affirmative
Issue No.6: As per final order
for the following:-
/REASONS/
13. Issues No.1 & 2:- Since both the issues being interlinked with each other, in order to avoid repetition of discussions, are taken up together for consideration.
14. The plaintiff being the absolute owner of the suit schedule property is filed this suit for declaration of ownership and delivery of possession as well as permanent injunction restraining the defendants or anybody claiming under them from putting up any construction on the suit 18 O.S.No.2287/2009 schedule property. The plaintiff is relying on oral evidence of her General Power of Attorney holder and relevant documentary evidence on record. P.W.1 the father of the plaintiff has deposed the averments made in the plaint by way of an affidavit. It is evident from the cross-examination of P.W.1 that the plaintiff is hale and healthy and she can give evidence, but she is not in a position to attend the court to give evidence due to her young children and disabled son. As deposed by P.W.1, the suit schedule property bearing site No.1 is situated in Sy.No.4 of Dasarahalli village as described with boundaries annexed to the plaint. The Malleswaram Tailing Co-Operative Society has formed layout in Sy.No.10 which is bounded by East of Sy.No.4 Mutthurayaswamy temple and land of Veerabhadrachar, West - land of Doraiswamy Sy.No. No.2/1B, to the North- Land of Narasimhaiah and to the South Sarkari Voni and 19 O.S.No.2287/2009 Malleshwaram Tailoring Co-Operative Society layout, in Sy.No.10. They have constructed the house in site No.74 of Sy.No.2/1B which was purchased by P.W.1 from Vomana. He has purchased the suit property from one Mahadeva Rao who had purchased it from Malleshwaram Tailoring Co-Operative Society. P.W.1 has paid Rs.35,000/- to Mahadeva Rao when he executed General Power of Attorney as per Ex.P7. There is no mention of payment of Rs.35,000/- to Mahadeva Rao in Ex.P7. There is no mention of payment of Rs.35,000/- to Mahadeva Rao in Ex.P7. The said house No.74 is situated to the west of suit property in Sy.No.2/1B which belongs to plaintiff. The said house No.74 was earlier belonging to the Malleshwaram Tailoring Co-Operative Society. The plaintiff is the 2nd purchaser of site No.2 in Sy.No.4 situated towards the north of the suit property. Site No.2 earlier belonged to The Malleshwaram Tailoring Co-Operative Society and it is 20 O.S.No.2287/2009 purchased by A.N.S.Korea. Sy.No.4 totally measures 2 Acres. The said society purchased land in the year 1973. P.W.1 has not produced the layout plan of Sy.No.4 as it is not in possession of the plaintiff. Admittedly, the layout plan is not approved by Bangalore Development Authority or Corporation. P.W.1 does not know whether the Malleshwaram Tailoring Co-Operative Society superceded and it is in black list as per the orders of the Apex Court and GVK Rao's report. The Rectification Deed to the Gift Deed was executed four months prior to the filing of the suit. Mahadevarao is not a consenting witness to the Rectification Deed. There is no holder khatha in the name of P.W.1 prior to execution of the Gift Deed in favour of the plaintiff. As per Ex.P18, no consideration was paid to Mr.Mahadeva Rao. Though there is an Agreement to show that P.W.1 has paid Rs.35,000/- to Mahadeva Rao yet the same is not produced in 21 O.S.No.2287/2009 this suit. P.W.1 does not remember the date when the defendants came to the suit property and tried to encroach and dispossess the plaintiff. The plaintiff has not given police complaint with regard to the illegal acts committed by the defendants in the 1st week of January 2009. It is also admitted that, Crime No.24/09 was lodged by the defendants and P.W.1 and others were arrested by the police in that case.
15. P.W.1 has further denied in the course of his further cross-examination that Katumbaraya temple is situated in an area of 130.45 Sq.Mtrs. According to P.W.1, the road is situated towards east, private properties are situated towards west and north and voni is situated towards south. It is stoutly denied that they are trying to identify and locate suit property in the area belonging to the temple and they have demolished the temple on 14.1.2009. However 22 O.S.No.2287/2009 P.W.1 has admitted that he has lodged complaint in respect of the temple to Bangalore Development Authority and BESCOM and Corporation. The Corporation has issued an endorsement that no document was available. P.W.1 is not disputing the endorsement issued by the Corporation authorities as pointed out by the counsel for the defendants. Mr.Mahadeva Rao is the original owner and he has filed O.S.No.239/2006 against the present defendants but the plaintiff herein has not produced any records to that effect.
16. It is evident from the further cross-examined of P.W.1 that defendant No.1 filed another suit in O.S.No.26136/2011 which is still pending on the file of CCCH.No.29, Mayo hall Unit at Bengaluru against the BBMP authorities. The plaintiff has filed impleading application in that suit to implead her as defendant No.3 which is also still pending for consideration. P.W.1 was permitted to exhibit 23 O.S.No.2287/2009 the certified copy of the said suit as Ex.P30 subject to relevancy. P.W.1 has denied that Ex.P30 is prepared on his instructions just to suit the purpose of the plaintiff.
17. On the other hand, D.W.1 has reiterated the averments made in the written statement in the course of his examination-in-chief by way of an affidavit. It is elicited from the cross-examination of D.W.1 that he being the President of the 1st defendant Trust is authorised to represent the 1st defendant in this suit as per letter of authorisation as per Ex.D1. The counsel for the plaintiff got marked the certified copy of Trust deed beyond dated.08.03.1999, photograph with C.D and Agreement and certified copy of plaint with list of documents in O.S.No.26136/2011 marked as Ex.P26 to Ex.P29 respectively. As admitted by D.W.1, the suit property is not in the name of the Trust. The Malleshwaram Tailoring Co-Operative 24 O.S.No.2287/2009 Society has formed sites in Sy.No.4 and other lands of Dasarahalli village and sold them. The khatha of the temple stands in the name of "Katumbaraya Swamy Devasthana. D.W.1 does not know whether suit property is situated in Sy.No.4. The defendants have not produced any documents except the sketch and tax paid receipts in support of their defence so far existence of the temple of "Katumbaraya". It is also not known to D.W.1 that site No.1 is the number of suit property. According to D.W.1, the said temple is in existence much earlier and they whitewashed and painted it. As per photograph at Ex.P27 the construction of the compound wall of the temple is seen and the stone wall compound is built for temple, but he does not know the approximate built up area of the temple. The power supply is taken to the temple about 2-3 years back. D.W.1 being President of the Trust had given application and executed 25 O.S.No.2287/2009 Agreements for power supply in favour of BESCOM as per Ex.P28 signed by him. D.W.1 has filed O.S.No.26136/2011 against BBMP on behalf of the Trust as per plaint at Ex.P29. They have shown temple property in Gomala and Sarkari Oni. It also reflects from the further cross-examination of D.W.1 that they have not constructed a new building but repaired the old building of the temple.
18. D.W.1 has shown his ignorance about the fact that the Malleshwaram Tailoring Co-Operative Society has formed layout in Sy.No.2/1B and 4 of Dasarahalli village and had purchased the same through registered Sale Deed dated.1.06.1974 and 24.7.1973 and the said society had got converted the said land on 28.4.1976 and thereafter sold sites to others. D.W.1 does not know whether the society has sold society to Mahadeva Rao on 16.5.1977 and that Mahadeva Rao has executed General Power of Attorney in 26 O.S.No.2287/2009 favour of Nanjappa-P.W.1 on 30.3.1995 and on the basis of the General Power of Attorney P.W.1 has gifted the property in favour of his daughter i.e., the plaintiff. It is also not known to D.W.1 whether Rectification Deed was executed and Mahadeva Rao had confirmed the same by executing confirmation Deed. D.W.1 has denied that they have constructed temple by trespassing over the suit property recently and disputing the existence of the suit property. D.W.1 has also denied that the Umamaheswari Trust is unconcerned to the temple.
19. It is established from the documentary evidence on record that P.W.1 being father of plaintiff was authorised by the plaintiff through General Power of Attorney at Ex.P1 to represent her in this suit in respect of the suit schedule property. Infact, P.W.1 acquired the suit schedule property through General Power of Attorney from Mahadeva Rao and 27 O.S.No.2287/2009 in pursuance to the General Power of Attorney at Ex.P7 dated.30.5.1995 has executed registered Gift Deed dated.28.3.2000 as per Ex.P8 thereby gifted the suit schedule property as described in the schedule annexed to the plaint. Ex.P8 discloses the source of title of M.Mahadevarao s/o. M.K.Madhava Rao Pawar. In pursuance to the Gift Deed, the name of the plaintiff was brought in CMC, Dasarahalli records and the plaintiff has paid not only betterment charges, but also the property tax from time to time earlier to the CMC, Dasarahalli and subsequently to the BBMP, Dasarahalli authorities. The BBMP has issued property extract recognizing the plaintiff as owner of site No.1/4 measuring 40x25 ft. as claimed in the suit as it is evident from Ex.P9 to Ex.P16. Besides, P.W.1 as a General Power of Attorney holder of original owner of the schedule property executed Rectification Deed as per Ex.P17 on 28 O.S.No.2287/2009 4.8.2008 thereby rectified the description of the property in the schedule annexed to the registered Gift Deed. Further the said M.Mahadevarao has also executed registered Consent/Confirmation Deed dated.7.8.2008 at Ex.P18 in favour of the plaintiff thereby duly confirmed the registered Gift Deed dated.28.3.2000 executed by P.W.1 as his power of attorney in favour of the plaintiff apart from execution of General Power of Attorney dated.30.5.1995 executed in favour of the plaintiff. This is also one of the important aspects to be taken into consideration.
20. On the other hand, the Malleshwaram Tailoring Co-Operative Society has purchased the land bearing Sy.No.4 of Dasarahalli village, Yeshwanthpura Hobli, under registered Sale Deed dated.27.4.1973 at Ex.P2. The land survey No.4 measuring 2 Acres has been converted by the conversion order dated.28.4.1976 passed by the Deputy Commissioner 29 O.S.No.2287/2009 Bengaluru District, Bengaluru at Ex.P3. The Record of Rights at Ex.P4 also discloses that the Malleshwaram Tailoring Co- Operative Society is the owner of entire agricultural land measuring 2 Acres in Sy.No.4 and the same has been continued since 2001. The said Mahadeva Rao has purchased the schedule site under the registered Sale Deed dated.16.5.1977 executed b y the Hon'ble Secretary for the Malleshwaram Tailoring Co-Operative Society Ltd., as per Ex.P5. The khatha in respect of the suit schedule site No.1 was also changed in the name of Mahadeva Rao as it is evident from property tax Register Extract issued by Chokkasandra Panchayath as per Ex.P6.
21. The plaintiff has lodged complaint before the Police Inspector, Peenya police station on 4.1.2009 as per Ex.P19 Sri Umamaheswari Seva Trust, for their interference into her possession and enjoyment over the suit schedule 30 O.S.No.2287/2009 property. On the other hand, on the complaint of defendants, the said police have registered a case in Crime No.24 on 14.1.2009 as per Ex.P20 against the P.W.1 and others for the offence punishable U/s.295 r/w. Sec.34 of IPC. Besides, the Sub-Inspector of police sought for necessary information from the Officers of the BBMP as per Ex.P22 dated.16.1.2009 particularly for spot inspection for ascertaining the existence of the temple in dispute between the parties. The plaintiff subsequent to filing of the instant suit, has sought for furnishing the certified copy of Form No.111, Rule No.20, Sl.No.863 and Revenue receipts from Asst. Revenue Officer so as to ascertain the genuineness of Form No.111, Rule No.20, pertaining to Sl.No.863 dated.22.2.2003 and Revenue receipts for the year 2003-04 along with Xerox copies of the said receipts as per Ex.P23 on 5.9.2009. In response to 31 O.S.No.2287/2009 the said letter, the Asst. Revenue Officer, Shettyhalli Sub-Division, BBMP, issued an endorsement dated.30.12.2009 as per Ex.P24. Accordingly the documents sought by P.W.1 were not available in the Revenue records of BBMP.
22. The relevant documents of the 1st defendant Trust got marked by the plaintiff in the course of cross- examination of D.W.1 themselves go to show that Sri Umamaheswari Seva Trust was formed on 8.3.1999 for the purpose of administration of Maheswaramma, Sri Basaveswara and Sriram temples and D.W.1 was elected as President of that Trust as per registered Trust Deed at Ex.P26 dated.8.3.1999. There is no reference of either Trust property or the 'Katumbaraya' temple. The photograph at Ex.P27 discloses that the defendant Trust has undertaken construction work recently in the schedule 32 O.S.No.2287/2009 property. Though the said Trust is no way concerned to 'Katumbaraya Temple', yet obtained power supply by executing Agreement dated.19.2.2009 by the D.W.1. As shown in the Agreement at Ex.P28, the said temple premises is bearing No.118 and there is no reference of site No.1 as claimed by the plaintiff herein. The 1st defendant Trust has filed O.S.No.26136/2011 for declaration and permanent injunction against the BBMP and Asst. Executive Engineer of BBMP in respect of temple of 'Katumbaraya' bearing No.2 in Sy.No.4 of T.Dasarahalli as described in the schedule 'A' & 'B'. The measurement and boundaries of the instant suit schedule property and the property claimed by the defendant in the said suit are totally different. It is crystal clear from the written statement filed by the defendants in O.S.No.26136/2011 at Ex.P30 that the Surveyor of BBMP has visited the 33 O.S.No.2287/2009 spot and drawn a sketch in the presence of panchas wherein it was noticed that the schedule property as described by the plaintiff in that suit is not matching with the sketch prepared by the BBMP. No khatha has been issued to the plaintiff Trust as per the records of the BBMP. The 1st defendant was trying to acquire title to the property which does not stand in its name. As per village map of Dasarahalli village, a temple is in Sy.No.2 on the western portion of the land which is called as "Muneswara temple" there was no other temple shown in the map as "Katumbaraya" temple in Sy.No.4 of T.Dasarahalli towards north, east of Sy.No. No.2 and there is a site given property No.1 khatha No.910, measuring 25 x 40 ft. is standing in the name of plaintiff herein. A small temple of Katumbaraya measuring 10x10 has been built in site No.1 recently. As such, the 34 O.S.No.2287/2009 defendants herein have falsely taken up a defence that the said temple is in existence since time immemorial and that temple measures 130 x 145 Sq. ft. Since the temple was not in existence in the year 2003, the receipts issued by the defendants for payment of property tax 2008-09 and 2009- 10 are not concerned to the suit schedule property. Further, the portion of Sy.No.2 on its North-East side has a sub- division bearing Sy.No.2/1B. Beyond Sy.No.2 on the eastern side there is Sy.No.4 In between Sy.No.2/1B and Sy.No.4 there exists 30 ft. wide road, leading to Muthurayaswamy temple. The plaintiff herein is the owner of site No.1 in Sy.No.4 had complained that the said road has been blocked by putting stones slabs and causing obstruction to the public to reach Muthurayaswamy temple. In pursuance to that complaint, the 2nd defendant issued notice to the plaintiff dated.13.01.2011 informing of the 35 O.S.No.2287/2009 stone slab compound wall put-up by them on the road lying between Sy.No.2/1B and Sy.No.4 and requesting them to produce tenant documents relating to the area where they have put up the stone slabs. The plaintiff in that suit i.e., the defendant herein gave reply dated.20.1.2011 contending that the stone slabs are erected in the property of the temple. The 2nd defendant not being satisfied with the reply, gave notice dated.14.2.2011 to the plaintiff stating that the stone slab compound wall is put up on the road itself and directing the plaintiff to remove the compound wall within 7 days of the receipt of that notice. Since the plaintiff did not respond to the notice calling upon it to remove the stone slab compound wall, the 2nd defendant gave a final notice dated.24.06.2011 to remove the compound wall within 3 days from the receipt of the notice. Thought the Trust had received the notice, yet did not remove the stone 36 O.S.No.2287/2009 slab compound wall and the 2nd defendant got removed the same with the aid and assistance of the police officers of Peenya police station on 02.07.2011. As pointed out by the BBMP authorities in the said suit, the defendant Trust encroached the road lying in between the Sy.No.2 and 4 by putting up stone slab unauthorisedly and taken legal action U/s.288 -D of KMC Act.
22. On the other hand, D.W.1 has exhibited the Resolution dated.17.8.2009 thereby authorised its President to represent the defendant-Trust in the instant suit filed by the plaintiff as per Ex.D1. The defendants lodged complaint against the father of the plaintiff Nanjappa and four others on 14.01.2009 and the jurisdictional police have registered the case in Crime No.24 U/s.295 r/w. Sec.34 of IPC as per Ex.D2. D.W.1 has exhibited electricity bill and water bill at Ex.D3 and Ex.D4 as President of Umamaheswari Trust. 37 O.S.No.2287/2009 There is no reference of either 'Katumbaraya Temple' or the Trust property in Ex.D3 and Ex.D4.
24. On analysing the evidence on record, it is proved before the court that the Malleshwaram Tailoring Co- Operative Society has purchased the land bearing Sy.No.4 of T.Dasarahalli village as per Sale Deed dated.27.4.1973 and after conversion of agricultural land to non-agricultural purpose by the order of the Deputy Commissioner, Bengaluru District dated.28.4.1976 formed layout along with other lands owned by the Society, the suit schedule site No.1 is one among the sites formed in that layout. One Mahadeva Rao purchased the suit site under registered Sale Deed dated.16.5.1977 and got changed the khatha of the schedule property in his name in Chokkasandra Panchayath records. Thereafter, Mahadeva Rao being the absolute owner has executed General Power of Attorney in favour of father of 38 O.S.No.2287/2009 plaintiff i.e., P.W.1. On 30.3.1995, the father of the plaintiff being power of attorney holder of the original owner has not only executed registered Gift Deed dated.28.3.2000, but also executed Rectification Deed dated.4.8.2008. Besides, the original owner Mahadeva Rao has also executed registered Consent/Confirmation Deed thereby confirmed Gift Deed executed in favour of the plaintiff by her father as his General Power of Attorney on 7.8.2008. On taking into consideration the source of title derived by Mahadeva Rao and transfer of the same through registered Gift Deed, Rectification Deed as well as Confirmation Deed, the plaintiff has not only perfected her absolute ownership, but also put in physical possession and enjoyment of the suit schedule property since the date of Gift Deed till today.
25. P.W.1 being power of attorney holder of the original owner of the suit schedule site No.1 is not only having 39 O.S.No.2287/2009 personal knowledge, but also competent to depose for and on behalf of the plaintiff as her General Power of Attorney the facts in controversy between the parties to the suit in respect of the suit schedule property. In view of the admission of D.W.1 coupled with documents of defendant Trust at Ex.P26 to Ex.P29, the defence so set up by the defendants as against the claim of the plaintiff in respect of the suit schedule property has been falsified. Ex.D1 to Ex.D4 are nothing to do with the subject-matter of the suit in dispute. The defendants have not only failed to prove the existence of the alleged "Katumbaraya temple"
as pleaded by the 1st defendant. Infact the Trust is formed only for the development and administration of other temples other than the alleged "Katumbaraya Temple". The defendants have no evidence at all to show 40 O.S.No.2287/2009 that "Katumbaraya Temple" is in existence for more than 100 years as contended by them.
26. It is crystal clear from the report of the Court Commissioner which is supported by oral evidence of C.W.1 that the suit schedule site No.1 is within the limits of Sy.No.4 as described in the schedule annexed to the plaint. The area of the alleged shed of the defendant and open space are bounded by south to the suit schedule property. The alleged "Katumbaraya Temple" has been newly constructed in the middle portion of the suit schedule property apart from old small temple situated in the portion of the suit schedule property. The location and existence of topographical situation surrounding the suit schedule property as shown in map at Ex.C2 also falsified the baseless defence so set up by the defendant Trust. In the absence of material document of title, the self serving records at 41 O.S.No.2287/2009 Ex.D1 to Ex.D4 cannot either create any sort of right, title or interest in favour of the defendant Trust or extinguish the absolute right, title or interest of the plaintiff over the suit schedule site. It can be inferred from the conduct of the defendant-Trust and its Trustees that the possibility of high handed trespass into the suit site belonging to the plaintiff and putting up temporary constructions alleged to be the temple of "Katumbaraya" cannot be ruled out. The defendant's Trust being a stranger to not only the alleged "Katumbaraya temple" but also stranger to the suit schedule property is not at all having locus-standi either to trespass or to interfere with the possession and enjoyment of the plaintiff over the suit schedule site. The alleged property of the Katumbaraya temple as claimed by the defendants was not at all in existence even in the year 2003 itself as it 42 O.S.No.2287/2009 is evident from the written statement filed by the BBMP authorities. As such, the suit schedule property claimed by the plaintiff is totally distinct and different from that of the alleged property of temple as alleged by the defendants. Looking from any angle, it is proved from the preponderance of evidence with all probabilities that the plaintiff is the absolute owner of the suit schedule property. The defendant-Trust and its Trustees have illegally trespassed over the suit schedule property and tried to make construction of temple of "Katumbaraya" in the portion of the suit schedule site exclusively belonging to the plaintiff. The defendant Trust has high handedly come in possession of portion of suit schedule property without having any sort of right to do so, so far the suit schedule site No.1 in Sy.No.4 of T.Dasarahalli village is concerned. Hence I answer Issue Nos.1 and 2 in the Affirmative.
43 O.S.No.2287/2009
27. Issue Nos.3 and 4:- In view of my findings on Issue Nos.1 and 2 and reasons stated therein, without much discussion I hold that the plaintiff is entitled for the relief of not only declaration and possession but also permanent injunction as sought against the defendants and I answer Issue Nos.3 and 4 in the Affirmative.
28. Issue No.5:- The plaintiff has filed the suit for declaration, possession and consequential relief of permanent injunction. The plaintiff has valued the suit property at Rs.7,50,000/- and paid requisite Court Fee of Rs.48,375/- u/s.24(a) r/w. Schedule -I of Karnataka Court Fees & Suits Valuation Act. The relief of injunction being ancillary relief, separate Court Fee need not be paid. The 1st defendant Trust has merely taken up a contentions that valuation made by the plaintiff and Court Fee paid by her are insufficient and incorrect. Except bald pleadings nothing has been placed 44 O.S.No.2287/2009 before the court to know that the valuation made by the plaintiff and Court Fee paid thereon is neither proper nor sufficient. In the absence of relevant material evidence, the valuation made by the plaintiff based on the market value has to be accepted. Hence without much discussion, I hold that the Court Fee paid on the plaint on the basis of the market value is proper and I answer Issue No.5 in the Affirmative.
29. Issue No.6:- In view of my findings on the issues No.1 to 5 and the reasons stated therein, in the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is decreed with costs against the defendants as under:-
It is declared that the plaintiff is the lawful owner of suit schedule property. 45 O.S.No.2287/2009
The defendants are directed to handover vacant possession of the encroached portion of the suit schedule property to the plaintiff within three months from the date of this order.
Consequently, the defendants or anybody claiming under them are restrained by way of permanent injunction from putting up any sort of construction on the suit schedule property.
Draw up a decree accordingly. (Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 17th day of November 2015.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore 46 O.S.No.2287/2009 A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: Sri.Nanjappa
(b) Defendant's side :
D.W.1: Sri.M.Maruthi
(c ) Court Commissioner's side:
C.W.1: Srinivas
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: General Power of Attorney,
Ex.P2: Certified copy of the sale deed
dtd.27.04.1973,
Ex.P3: Copy of conversion order
dtd.28.04.1976,
Ex.P4: RTC for the year 2001-02,
Ex.P5: Sale deed dtd.16.05.1977,
Ex.P6: Demand register extract,
Ex.P7: General Power of Attorney
dtd.30.05.1995,
Ex.P8: Gift deed dtd.28.03.2000,
Ex.P9: Betterment charges receipt,
Ex.P10: Demand register extract,
Ex.P11-15: Tax paid receipts (Five in number),
47 O.S.No.2287/2009
Ex.P16: Houses and vacant space Register
book,
Ex.P17: Rectification deed of gift deed
dtd.04.08.2008,
Ex.P18: Confirmation deed dtd.07.08.2008,
Ex.P19: Copy of police complaint
dtd.12.01.2009,
Ex.P20: Copy of FIR,
Ex.P21: Certified copy of sale deed
dtd.01.06.1994,
Ex.P22: Copy of complaint dtd.16.01.2009,
Ex.P23: Application dtd.05.09.2009 written
to BBMP,
Ex.P24: Endorsement dtd.30.12.2009 issued
by BBMP,
Ex.P25: Letter dtd.07.01.2010 issued by
Dy.S.P.
Ex.P26: Certified copy of Trust deed
dated.8.3.1999
Ex.P27: Photograph
Ex.P27(a): C.D. & Memory
Ex.P28: Power Supply Agreement
Ex.P28 Signature
(a&b):
Ex.P29: Certified copy of plaint along with
list of documents filed in
O.S.No.26136/2011
Ex.P30: Certified copy of written statement
filed in O.S.No.26136/2011
(b) For defendant's side:-
Ex.D1: Letter of authorisation
dated.17.8.2009
48 O.S.No.2287/2009
Ex.D2: FIR issued by Peenya police station
Ex.D3: BESCOM Receipt
Ex.D4: BESCOM receipt
(c) Court Commissioner's side:
Ex.C1: Report of the Court Commissioner
Ex.C2: Survey sketch
Ex.D3: Report of the Court Commissioner
Ex.C4: Mahazar
Ex.C4(a): Endorsement
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
49 O.S.No.2287/2009
(Judgment pronounced in open court)
The suit of the plaintiff is decreed
with costs against the defendants as
under:-
It is declared that the plaintiff is
the lawful owner of suit schedule property.
The defendants are directed to handover vacant possession of the encroached portion of the suit schedule property to the plaintiff within three months from the date of this order.
Consequently, the defendants or anybody claiming under them are restrained by way of permanent injunction from putting up any sort of construction on the suit schedule property.
Draw up a decree accordingly.
(vide Judgment passed) XII ACCJ;Bangalore