Bangalore District Court
Smt. Vijaya vs G.Narasimhamurthy on 15 June, 2015
IN THE COURT OF THE XXIV ADDL.CITY CIVIL
JUDGE BANGALORE CITY (CCH.NO.6)
This 15th day of June, 2015
PRESENT: Shri S.SRIDHARA,
B.Sc., LL.B.,
XXIV Addl. City Civil
and Sessions Judge, Bangalore.
O.S.NO.7407/2008
PLAINTIFF: Smt. Vijaya
W/o Elumalai @ Sathya,
Aged about 33 years,
R/at No.146, Old No.97/B,
I Stage Slum,
Rajagopal Garden,
Bangalore- 560 002.
(By Sri.TLR, Advocate).
Vs.
DEFENDANTS: 1. G.Narasimhamurthy
Aged about 47 years.
2. G.Vinayuakumurthy,
Aged about 40 years.
Both are the sons of
Late G.Govindaswamy,
R/at No.6/15, Mavalli
Tank Bund Road Cross,
Rajgopal garden,
Bangalore- 560 002.
(By Sri. AGR, Advocate)
Date of institution of the suit: 07.11.2008
-2- O.S.7407/2008
Nature of the suit: Injunction Suit
Date of commencement of 04.08.2010
recording of evidence:
Date on which Judgment was 15.06.2015
pronounced:
Duration Days Months Years
JUDGMENT
The instant suit filed by the plaintiff against the defendants is one for permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession of the plaint schedule property and for costs and such other reliefs.
2. a) The plaintiff has stated that she is the absolute owner in possession of suit property having been in possession of the same since more than 6 to 7 years. According to the plaintiff, the suit schedule property is comprised in Rajagopal garden in 1st Stage Slum, which is the jurisdiction of Karnataka Slum Clearance Board. She further stated that the said board on the basis of the possession for continuous period recognizes the possession of the parties and
-3- O.S.7407/2008 issued possession certificate by recognizing their possession. She further stated that the said Board is empowered to issue possession certificate to those parties, who are in uninterrupted possession of the particular property and accordingly the Slum Clearance Board had issued possession certificate to the said parties on 27.8.2005. She further stated that before the plaintiff came into possession of the suit property, one Sherrif Unnisa wife of Vazir Khan was in possession of the said property. After the said Sharrif Unissa vacated the premises, the plaintiff is in possession of the schedule property.
b) The plaintiff further stated that the defendants in this case are also the residents of nearby locality, who are the land grabbers and powerful persons. The defendants are in the habit of threatening the slum dwellers and take possession forcibly and claiming the properties. According to the plaintiff, she came to know that the defendants infact had attempted to dispossess Smt.Sharrif Unnisa and
-4- O.S.7407/2008 the said Sharrif Unnisa approached the Court of law and obtained an order of injunction against the defendants from dispossessing the suit schedule property.
c) According to the plaintiff, ever since the plaintiff took possession of the suit property, the defendants have been creating nuisance and threatening the plaintiff on one or the other occasions. The defendants demanded the plaintiff to vacate the suit property and offered substantial money. However the plaintiff and her family members have no other properties to reside and the plaintiff has refused to yield to the demands of the defendants.
d) The plaintiff further stated that the schedule property consists of two rooms constructed by mud wall and Mangalore tiled roof, which is more than 50 years old. During the recent rain, wall and the roof of the schedule property had collapsed and the plaintiff has erected bamboos to support the ceiling, as there
-5- O.S.7407/2008 was threat of collapse of the roof. The walls also had collapsed. When the plaintiff had approached the Housing Board for permission to repair the damaged portion, the said Karnataka Slum Clearance Board on the application given by the plaintiff conducted spot inspection and satisfied with regard to the dilapidated condition of the building and granted permission to the plaintiff to carry out the repair work of the suit property.
e) She also further stated that after taking permission from the Slum Board, the plaintiff is making arrangements to get the suit property repair on 6.11.2008. The defendants have no right, title or interest in respect of the suit property high handedly prevented the plaintiff from carrying the repair work. Though the plaintiff approached the concerned police, but the police informed the plaintiff that the matter is civil in nature. The plaintiff is a flower vendor and her husband is vegetable vendor and they are helpless persons.
-6- O.S.7407/2008
f) In para-11 and para-13, she also pleaded the interference of the defendants. In para-14, she pleaded cause of action and praying this Court to decree the suit as prayed for.
3. The plaint schedule reads as follows:
All that piece and parcel of the property bearing No.146, Old No.97/B, situated at 1st Stage slum, Rajgopal garden, Bangalore- 560 002 measuring East to West 6.25 meters and North to South 4.20 meters consisting of two rooms bounded on East by: Site No.147;
West by: Site No145;
North by: House;
South by: Road.
4. a) The defendants filed written statement
denying all the plaint averments and further
contended that the suit filed by the plaintiff is not maintainable. The plaint averment that the Karnataka Slum Clearance Board issued possession certificate is false and the said possession certificate dated 27.8.2005 is also false. The defendants in the written statement at para-5 also denied the
-7- O.S.7407/2008 possession of Smt.Sharrif Unnisa in respect of the suit property.
b) The plaint averments that the suit property is in dilapidated condition and the Slum Clearance Board had given permission to carry out the repair work is also denied. In para-9 of the written statement, the defendants also denied the alleged interference.
c) The specific case of the defendants that their father late G.Govinda Swamy had out of his self acquired funds, brought a site bearing Municipal No.6/16, Ward No.48, BBMP, Mavalli Tank Bund Road Cross, Rajgopal Garden, Bangalore, which is morefully mentioned in the written statement schedule on 17.3.1977 from one Balammal, who is a rightful owner. After G.Govindaswamy purchasing the said property i.e. vacant site, he also paid betterment charges in respect of the written statement schedule property and got the municipal khatha done in his favour and paid taxes to the concerned authorities in respect of the written statement schedule property.
-8- O.S.7407/2008 The said G.Govindaswamy had ancestral land also at Govindacherry, Kuppam Post, Jambodai Village, Walaja Taluk, Tamil Nadu, which is their ancestral property. Govindaswamy died on 21.8.1992. As the defendants, their brother G.Gopi, his sister Kalavathi and their mother Muniyamma were the only legal heirs to the estate of G.Govindaswamy, they jointly succeeded to the written statement schedule property as co-owners. Muniyamma also died on 28.1.2005 leaving behind the defendants, their brother late Gopi, sister Kalavathi as the only co-owners of the written statement schedule property etc. After the death of G.Govindaswamy, the defendants, late Gopi left Bangalore to have their ancestral property matters settled. The defendants, their brother Gopi and sister Kalavathi left their mother Smt.Muniyamma in their joint family house No.6/15, Ward No.48 of BBMP and they were frequently visiting their mother to look after her well being. The defendants, their brother Gopi and their sister Kalavathi had not yet decided as to who should inherit the written
-9- O.S.7407/2008 statement schedule property and as such, they are still negotiating with each other regarding settlement of the written statement schedule property and also their ancestral property.
d) Defendants also specifically stated that one Alambadi Elumalai the defendant in O.S.5813/2008 was a daily wage worker, who is the close friend of late G.Govindaswamy and he approached the defendants, their brother G.Gopi and sister Kalavathi during January 1998 and requested them to built a hut in the northern part of the written statement schedule property in an area of 202.50 square feet, which is morefully shown in the written statement 'A' schedule and promised that he would vacate whenever the defendants would ask him to vacate. They further stated that by looking into the status of the said Alambadi Elumalai, the defendants permitted the said Elumalai to stay in the written statement schedule property by building a temporary hut with a condition that whenever they asked, Elumalai should
- 10 - O.S.7407/2008 vacate the written statement schedule property. But during December 2004, the said Alambadi Elumalai had converted a temporary shed into a pucca building without obtaining permission from the defendants, their brother Gopi and their sister Kalavathi and he also tried to alienate the written statement 'A' schedule property to the third parties, which was protested by the defendants. The defendants, their brother and sister also demanded the said Elumalai to vacate the written statement 'A' schedule property and to hand over the vacant possession, but he failed to do so.
e) The defendants further stated that they have also issued notice to the said Alambadi Elumalai by RPAD, which was rejected by him. They further stated that said Elumalai stated that he required six months time to vacate the written statement 'A' schedule property and even after lapse of six months, he failed to vacate the same. In the meantime, the defendants' brother Gopi also died on 10.4.2007
- 11 - O.S.7407/2008 leaving behind his legal heirs as stated in para-16 of the written statement. So, taking advantage of the said situation, the said Alambadi Elumalai is squatting over the written statement 'A' schedule property. He also threatened the defendants with dire consequences. Though the defendants approached the concerned police, they refused to entertain the complaint stating that the matter is civil in nature.
f) Defendants also pleaded that having no other option to recover the possession of the written statement 'A' schedule property, they also filed the suit in O.S.5813/2008, which is still pending before CCH-25. The Court on 29.8.2008 ordered that the parties should maintain status quo till next date. Insptie of receiving the Court notice and orders, the said Alambadi Elumalai started putting up illegal building on the written statement 'A' schedule property and accordingly application is also filed Under Order 39 Rule 2-A of CPC. Instead of taking appropriate steps in O.S.5813/2008, surprisingly the
- 12 - O.S.7407/2008 plaintiff now claiming to be the owner of the suit property filed this suit without disclosing the pendency of O.S.5813/2008 and interim order that was passed in that case. According to the defendants, the schedule mentioned in the interim application filed by the plaintiff refers to a different property, which is bounded on the southern side by road. Using the said order passed in 7407/2008 i.e. in this case, Alambadi Elumalai, plaintiff and their representatives are constructing the illegal building in the written statement 'A' schedule property by violating the Court order. The plaintiff filed this suit as a counter blast of the suit filed in O.S.5813/2008.
g) According to the defendants, the plaintiff is not the owner of any property and has falsely claimed the property in the plaint and this suit is filed without proper cause of action. The alleged possession certificate purported to be issued by Karnataka Slum Clearance Board is concocted for the purpose of this case. The suit property comes within BBMP limits.
- 13 - O.S.7407/2008 No plan is obtained by the plaintiff to put up construction in the suit property. Alambadi Elumalai stopped work and the plaintiff, who is his wife, filed this case on the basis of concocted records and obtained an interim order on 11.11.2008. Police complaint is also filed in this regard on 17.11.2008. The complaint is also filed with BBMP authorities and Slum Clearance Board. Defendants also resisted the suit on various other grounds and pray for dismissal of the suit with costs.
5. Written statement schedule and written statement 'A' schedule reads as follows:
SCHEDULE All that piece and parcel of site bearing the municipal No.6/16 (PID No.48-103-6/16), situated at Ward No.48 of Bangalore Mahanagara palike, Mavalli Tank Bund Road cross, Rajgopal gaqrden, Bangalore- 560 002 measuring from East to West 15 feet and from North to South 60 feet having a total area of 900 square feet and bounded on East by: Property belongs to Mr.Shanmugam;
West by: Rajgopala Garden;
North by: Krishna Murthy's property;
South by: MTB Cross Road.
- 14 - O.S.7407/2008
SCHEDULE 'A'
The northern portion of the site bearing the municipal No.6/16 situated at Ward No.48 of Bangalore Mahanagara Palike, Mavalli Tank Bund Road Cross, Rajgopal Garden, Bangalore- 560 002 measuring from East to West 15 feet and from North to South 13 feet 6 inches having a total area of 202.5 square feet and bounded on East by: property belonging to Mr. Shanmugam;
West by: Rajgopala Garden;
North by: Krishna Murthy's property; South by: the remaining property of the plaintiffs.
6. Based on the above pleadings of the parties, following issues have been framed by this Court:
1. Whether plaintiff proves that she is in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff further proves the alleged interference of the defendants?
3. Whether the plaintiff is entitled for the relief of permanent injunction as sought for?
4. What order or decree?
7. In support of the case of the plaintiff, she herself is examined as PW.1 and got marked Exs.P.1
- 15 - O.S.7407/2008 to P.21, Ex.P.5(a) to P.8(a) and also examined another witness as PW.2 and accordingly closed the evidence of the plaintiff. It appears that Ex.D.1 to D.5 are marked in the cross-examination of PW.1 by confronting those documents. The 1st defendant is examined as DW.1 and got marked Ex.D.6 to D.32 and closed the evidence of the defendants. Note: Order sheet dated 16.4.2015 discloses that Ex.P.15 one of the birth certificate is ordered to be returned by keeping the certified copy, but with a condition.
8. Heard the arguments of both sides and perused the records.
9. Learned counsel for the defendants also filed written synapses and also relied upon the following decisions:
1. Appeal (Civil) No.6191/2001 Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. & others.
2. The Karnataka Slum Areas (Development) Act 1973.
Arrangement of sections).
- 16 - O.S.7407/2008
3. ILR 2010 KAR 2996
Smt.Siriyala & Ors. Vs. B.N.Ramesh.
Perused the written synapses of the defendant and also perused the decisions.
10. My findings on the above issues are:
Issue No.1: Partly Affirmative.
Issue No.2: partly Affirmative.
Issue No.3: Partly Affirmative.
Issue No.4: As per the final order
for the following;
REASONS
11. Issue Nos.1 and 2: Since these two issues are interlinked with each other and require common discussion of facts, they are taken together for discussion to avoid repetition of facts.
12. When the plaintiff pleads that she is in lawful possession of the plaint schedule property as on the date of the suit and when the plaintiff pleads the alleged interference of the defendant, the entire burden is on the plaintiff to prove issue Nos.1 and 2.
- 17 - O.S.7407/2008 13. Since this is only a suit for permanent
injunction, the scope of this suit is very limited. Any question with regard to the title in respect of the plaint schedule property can only be looked into incidentally.
14. In support of the case of the plaintiff, he relied upon the documents Exs.P.1 to P.21.
15. Ex.P.1 is the possession certificate dated 27.8.2005 issued by Karnataka Slum Clearance Board in favour of the present plaintiff, wherein the husband name of the plaintiff is shown as Vijaya wife of Sathya. But in the cause title of the plaint, the plaintiff disclosed her name as Vijaya wife of Elumalai @ Sathya. Ex.P.1 also discloses that as if as per the Notification No.KSACR 2/1987-88, the 1st Phase of Rajagopal Nagar Garden area is declared as slum areas. As per Ex.P.1, site No.146 is confirmed to be in possession of the plaintiff and boundaries are also shown as East by site No.147, West by site No.145, North by house and South by road. According to the
- 18 - O.S.7407/2008 defendants in this case, the plaintiff is the wife of the defendant in O.S.5813/2008, which is filed by the present defendants in this case as plaintiffs against the defendant therein by name Alambadi Elumalai.
16. Ex.P.2 is the no objection dated 29.3.2008 issued by Karnataka Slum Clearance Board to the plaintiff permitting the plaintiff to repair the house bearing No.146, but subject to condition and restrictions mentioned therein. One such condition that was imposed under Ex.P.2 is to the effect that in case of any objection received or suit has been filed or arises, the permission said to have been issued under Ex.P.2 will be withholding. It is also worth to mention that this Ex.P.2 permission was granted in favour of the plaintiff, wherein again her husband name is shown as Sathya.
17. Ex.P.3 is the similar NOC issued from Karnataka Slum Clearance Board dated 3/5.11.2008 again the said Slum Clearance Board authorised the plaintiff to repair house No.146 and for the first time, it is also
- 19 - O.S.7407/2008 shown as if old house No.97/B and similar recital does not find a place in Ex.P.2. In this document, the husband name of the plaintiff is shown as Elumalai. Under Ex.P.2, permission was granted as per representation of the plaintiff dated 14.2.2008. However under Ex.P.3, permission was granted as per the representation of the plaintiff dated 27.10.2008. Why the plaintiff has not carried out the repair work as per the permission granted under Ex.P.2 is not satisfactorily explained.
18. Ex.P.4 is the Invitation Card pertaining to the children of the present plaintiff with regard ear boring ceremony and this document might have been produced by the plaintiff just to show that she is a resident of door No.146, Rajagopal Nagara Garden area, Kalasipalyam, Bangalore.
19. Ex.P.5 to P.8 are the photographs showing that the house was in dilapidated condition. Ex.P.5(a) to P.8(a) are the concerned negatives.
- 20 - O.S.7407/2008
20. Ex.P.9 is the certified copy of the order sheet in O.S.3298/1996, which is filed by one Shariffunnisa against 1st defendant in this case, which came to be dismissed for non-prosecution and this document might have been produced to show that temporary injunction that was granted in O.S.3298/1996 was in force till 3.7.2001. It is also worth to mention at this stage itself that the plaintiff in this case claims that after Shariffunnisa vacated the plaint schedule property, she occupied the same and this recital finds a place in para-5 of the plaint.
21. Ex.P.10 is the certified copy of the plaint in O.S.3298/1996 filed by the said Shariffunnisa against the 1st defendant for the relief of permanent injunction. On careful perusal of the plaint schedule in this case, so also the schedule furnished in O.S.3298/1996, the same differs. The plaintiff in O.S.3298/1996 claims that she is in adverse possession of the suit property therein and accordingly she pleaded adverse possession against
- 21 - O.S.7407/2008 the defendant and also stated that the Karnataka Slum Clearance Board issued registration certificate.
22. Ex.P.11 is the endorsement issued by Karnataka Slum Clearance Board dated 9.2.2010 for having furnished information under RTI Act.
23. Ex.P.12 is an important document, which is a Gazette Notification published in Karnataka Gazette dated 21.4.1988, which discloses that the Government on 21.4.1988 declared the areas shown therein as slum areas Under Section 3 of Karnataka Slum Areas (Improvement & Clearance) Act 1973, which is proposed to be declared as Slum Clearance Area under Section 11 of the said Act and accordingly declared the land shown therein as Slum Clearance area Under Section 11 of the said Act. On perusal of Ex.P.12, it is also crystal clear that the land to an extent of 0-17 guntas or 1697-5 square meters in the property bearing No.PTS.332, 333 Ch.No.217, which belongs to Smt.Balammal as per the CTS records is declared as Rajagopal Nagar Garden slum area i.e.
- 22 - O.S.7407/2008 Kalasipalyam, Bangalore. In this Gazette Notification at Slum No.342, hut No.334, the name of one G.Govindaswamy finds a place to an extent of 10X9 feet, who is none other than the father of the defendants in this case. It is also worth to mention at this stage itself that the Gazette Notification or its legality or validity cannot be questioned before the Civil Court.
24. Ex.P.13 is a sketch prepared showing the total areas declared as slum areas i.e. to an extent of 0-17 guntas out of the total extent and it also discloses that one Sathya also put up a house in the place measuring East to West 4 meters and North to South 5.5 meters.
25. Ex.P.14 is the notarized copy of ID Card and P.16 is the ID Card issued from Election Commission of India pertaining to the plaintiff and her husband, which were issued on 22.2.2009, which came into existence subsequent to filing of the suit and these documents might have been produced by the plaintiff
- 23 - O.S.7407/2008 to show that plaintiff is the resident of house No.141, new No.146 i.e. plaint schedule property.
26. Ex.P.15 is the birth certificate pertaining to the son of the plaintiff and this might have been produced to show that the plaintiff and her family members are residing in house No.146. Ex.P.17 and P.18 both are Adar Cards issued to the plaintiff and her husband Elumalai and these documents might have been produced by the plaintiff to show that she is the resident of house No.146, Rajagopal Nagar Gaden Area, Bangalore North.
27. Ex.P.19 is the certified copy of the registered sale deed dated 27.12.1970 executed by Balammal and her two sons in favour of G.Govindaswamy the father of the defendants in this case for sale price of Rs.5,000/- and possession of the property is shown to have delivered and this sale deed is in respect of property formed in part of Sy.No.158/2 of Doddabylakane, Kasaba Hobli now coming within BBMP limits and property bearing Municipal No.67/1F
- 24 - O.S.7407/2008 of Mavalli Tank Bund Road measuring East to West 25 feet and North to South 60 feet and boundaries are also specifically mentioned stating that East by place sold to Nagamma, West by Revenue land belongs to the vendor, North by Garden land of Krishna Murthy Rao and others and South by layout road formed by the vendor. The said property sold consisting of a vacant site and tiled roofed Vappara.
28. Ex.P.20 is the certified copy of the registered sale deed dated 3.7.1974 executed by Govindaswamy the father of the defendants in this case in favour of Jayarama Reddy, Shamanna Reddy and Raghuram Reddy for Rs.25,000/- and possession is also delivered. It is worth to mention that the vendor under Ex.P.20 is the person, who acquired the property under Ex.P.19 has sold a portion of it in favour of the purchasers under Ex.P.20 and that property that was sold measures East to West 15 feet and North to South 60 feet i.e. on the eastern portion and property number is also shown as property No.6
- 25 - O.S.7407/2008 of Mavalli Tank Bund Road Cross. Boundary is also shown as East by property of one Nagamma, West by portion in same municipal number retained by the vendor measuring 10X60 feet, North by property of Krishna Murthy and others and South by road.
29. Ex.P.21 is the certified copy of the registered sale deed dated 29.8.1988 executed by Govindaswamy the father of the defendants in this case in favour of Shanmugham and S.P.Selvaraj for Rs.1,00,000/- and possession of the property is delivered. The recital also shows that portion of the property measures 15X60 feet that was sold by the vendor Govindaswamy under Ex.P.20 in favour of Jayarama Reddy has been acquired by Bangalore City Corporation for formation of the road. The property that was sold under Ex.P.21 measures East to West 10 feet and North to South 60 feet and property number is shown as 6 and Old No.6/F. Strangely the boundaries are shown as East by road, West by property of others. It is worth to mention that the
- 26 - O.S.7407/2008 vendor himself has stated in the sale deed stating that eastern portion that was sold by him to Jayarama Reddy and others under Ex.P.20 has been acquired by Bangalore City Corporation for formation of the road. North by property of Krishna Murthy Rao and South by road.
30. On the other hand, the defendants also relied upon the documents Ex.D.1 to D.32.
31. Ex.D.1 is the signature of the defendant in the vakalath filed by the plaintiff in this case. Ex.D.2 is signature found in the served postal acknowledgement, which indicates that the article that has been addressed to Alambadi Elumalai has been received by the plaintiff in this case on 5.9.2008. Ex.D.3 to D.5 are the photographs showing the construction work, which was in progress which appears to be in the plaint schedule property.
32. Ex.D.6 to D.8 are the copies of complaint filed by the 1st defendant in this case with the Assistant
- 27 - O.S.7407/2008 Executive Engineer, BBMP; to the Commissioner, Karnataka Slum Clearance Board and also to the Commissioner, BBMP stating that the 1st defendant is the owner of property bearing No.6/16, wherein one Alambadi Elumalai and his wife illegally putting up construction without any sanctioned plan or licence and accordingly requested the concerned authorities to take suitable action at an early date to stop the illegal construction. Ex.D.9 is the rough sketch prepared by the defendants showing the location of the property bearing No.6/16, 6/1F and 6/15 and the same is being indicated by the letters ABCD, DCJI and FDCE.
33. Ex.D.10 is the certified copy of the suit summons issued in O.S.5813/2008, wherein suit has been filed by one G.Narasimha Murthy the 1st defendant in this case against Alambadi Elumalai. It also indicates that the summons was received by one E.Vijaya the plaintiff in this case on behalf of her husband Alambadi Elumalai.
- 28 - O.S.7407/2008
34. Ex.D.11 is the certified copy of the sale deed dated 17.3.1977 executed by Balammal in favour of G.Govindaswamy the father of defendants 1 and 2, wherein she has sold two bits of sites and possession of the property was delivered and those two sites ere carved out in Sy.No.158/2 of Doddabylukane of Bangalore city. The first bit measures East to West 15 feet and North to South 60 feet and second bit measures East to West 15 feet and North to South 45 feet. Ex.D.11 also shows separate boundaries for the said two bits of land sold by Balammal in favour of G.Govindaswamy. It is worth to mention that the property number of both sites said to have been sold under Ex.D.11 has not been mentioned. Ex.D.11(a) is the typed copy of Ex.D.11.
35. Ex.D.12 is the receipt for having paid betterment charges by G.Govindaswamy the father of the defendants in respect of property measuring 15X60 feet formed in Sy.No.158/2 of Doddabylukane, which is dated 19.11.1982.
- 29 - O.S.7407/2008
36. Ex.D.13 is the endorsement dated 27.9.1982 issued from the office of Assistant Revenue Officer informing the defendants' father G.Govindaswamy to pay the betterment charges to record the khatha of the said two bits of land measuring 15X60 and 25X45 feet, which is formed out of Sy.No.158/2 in the name of Govindaswamy on his application. It is worth to mention that it is only on the basis of Ex.D.13, it appears that G.Govindaswamy paid betterment charges as per the receipt Ex.D.12, which is marked in this case.
37. Ex.D.14 is the certified copy of the ration card pertaining to the 1st defendant and his family members and the mother of the 1st defendant by name Muniyamma. This document has been produced just to show that they are the residents of property bearing No.6/15.
38. Ex.D.15 and Ex.D.16 both are the certified copies of death certificate of Govindaswamy and Muniyamma, the parents of the defendants in this
- 30 - O.S.7407/2008 case, who died on 21.8.1992, 28.1.2005 respectively and both are shown to be the residents of property bearing No.6, 6/1 of Mavalli Tank Bunk Road, Bangalore.
39. Ex.D.17 is the tax paid receipt paid by the said Govindaswamy on 21.3.2005 for the assessment year 2001-02 to 2003-04 in respect of property bearing No.6/16. It is worth to mention that though Govindaswamy died on 21.8.1992, tax was continued to be paid in the name of Govindaswamy as per Ex.D.17. It is also worth to mention that no document has been produced to show that Govindaswamy has paid tax from 1977 to 2005 in respect of property bearing No.6/16.
40. Ex.D.18 is the certified copy of the assessment list extract for the assessment year 2001-02 to 2004- 05, which also shows that G.Govindaswamy is the owner of vacant site measuring 15X60 feet consists of three square sheet house in Old property No.6/16.
- 31 - O.S.7407/2008 Even though G.Govindasamy died in 1992, khatha was continued in his name up to 2004-05.
41. Ex.D.19 is also the khatha certificate in respect of property bearing No.6/15 and khatha was recorded in the name of G.Govindaswamy. Ex.D.20 is the site plan in respect of property bearing No.6/16 and the property which is in occupation of the plaintiff measuring to an extent of 202.50 square feet.
42. Ex.D.21 is the certified copy of the order sheet in O.S.5813/2008, wherein the suit has been filed by the 1st defendant in this case against Alambadi Elumalai seeking possession of the suit property therein. Ex.D.22 is the certified copy of the interim application with affidavit filed by the plaintiffs therein (defendants 1 and 2 in this case along with other family members) seeking temporary injunction restraining the defendants therein from putting up of any construction in the plaint schedule property therein i.e. site No.6/16 measuring about 202.50 square feet. Ex.D.23 is the certified copy of the
- 32 - O.S.7407/2008 vakalath in O.S.5813/2008 filed by one Elumalai and this document has been produced for the limited purpose to show that the very same Advocate is appearing for the defendant in O.S.5813/2008 and plaintiff in this case. Ex.D.24 is the certified copy of the written statement filed in O.S.5813/2008.
43. Ex.D.25 is the property card issued by Department of Survey Settlement and Land Records showing that defendants 1 and 2 are the new holders of property city survey No.217/478.
44. Ex.D.26 to D.30 are the tax paid receipts, wherein tax has been paid by G.Govindaswamy on 6.6.2014 in respect of property bearing PID No.48- 103-6/16 for the assessment year 2010-11 to 2014- 15 and all these tax paid receipts came in to existence subsequent to filing of the suit. Tax has been paid under all the receipts on the same day i.e. on 6.6.2014, but as per the death certificate Ex.D.15, G.Govindaswamy died on 21.8.1992.
- 33 - O.S.7407/2008
45. Ex.D.31 and D.32 both are khatha certificate and khatha extract, which are dated 13.6.2014 issued by BBMP for the assessment year 2014-15, which shows that G.Govindaswamy is the owner/kathedar of property bearing No.6/16 i.e. new number and old khatha number is left blank. PID number is shown as 48-103-6/16. However the total site area nor the constructed area is totally left blank in Ex.D.32. Ex.D.31 and D.32 both came into existence subsequent to filing of the suit.
46. The plaintiff in this is examined as PW.1, wherein she has reiterated the plaint averments and she also examined her husband as PW.2, wherein he also corroborates the evidence of PW.1 so far it relates to the plaint averments. PW.1 and PW.2 both have stated that the plaint schedule property is comprised in Rajagopal Nagar garden area in 1st Stage Slum, which comes under the jurisdiction of Karnataka Slum Clearance Board. They further stated that the Board on the basis of the possession for
- 34 - O.S.7407/2008 continuous period recognizes the possession of the parties and issued possession certificate by recognizing their possession. They further stated that the Board is empowered to issue possession certificates to those parties, who are in uninterrupted possession of a particular property and accordingly the Karnataka Slum Clearance Board had issued the possession certificate in favour of the plaintiff on 27.8.2005. Accordingly the plaintiff has produced the possession certificate as per Ex.P.1, permission granted by the Karnataka Slum Clearance Board to carry out the repair work as per Ex.P.2 and P.3 and further she also produced Ex.P.16 ID card of PW.2 and also Adar Cards of PW.1 and PW.2 as per Ex.P.17 and P.18 to show the lawful possession of the plaintiff in respect of the plaint schedule property since from 27.8.2005 as per Ex.P.1.
47. However PW.1 in her cross-examination denied the suggestion that her husband is also called by name Alambadi Elumalai. However PW.1 in her cross-
- 35 - O.S.7407/2008 examination specifically admitted that before she filing the suit, the defendants have already filed the suit against her husband in O.S.5813/2008. She also admitted that the defendants filed a suit against her husband on the ground that PW.2 was putting up construction in the property belongs to the defendants. A specific suggestion is made in the cross-examination of PW.1 by suggesting that she filed this suit by suppressing the fact of filing the suit by the defendants against her husband and this suggestion is initially admitted by PW.1 and later she denied the suggestion. However she denied the suggestion that there was an order of Status Quo in the suit filed by the defendants directing both the parties to maintain status quo in that suit property. She also admitted in her cross-examination that in order to carry out the repair work in the property shown in Ex.P.5 to Ex.P.8, she has not obtained permission from the BBMP, but she stated that she obtained permission from Karnataka Slum Clearance Board.
- 36 - O.S.7407/2008
48. PW.2 in his cross-examination admitted that the khatha was not made out in the name of the plaintiff in respect of the suit property and he also admitted that he has not produced any of the sale deed or any other documents that was made out in the name of his wife in respect of the plaint schedule property. However PW.1 has produced Ex.P.1 possession certificate issued from the Karnataka Slum Clearance Board in respect of the plaint schedule property i.e. site No.146. He admitted in his cross-examination that the suit filed by one Shariffunnisa against the defendants came to be dismissed.
49. A strange suggestion is made in the cross- examination of PW.1 by suggesting that the plaintiff and PW.2 both constructed the house in the property belongs to the defendants bearing property No.6/16 and this suggestion is denied by PW.2 in his cross- examination. But PW.2 in his cross-examination admitted that the defendant filed the suit against the plaintiff and PW.2 to get them evicted from the said
- 37 - O.S.7407/2008 property bearing No.6/16 in O.S.5813/2008 and he admitted the said suggestion, which reads as follows:
"¥ÀæwªÁ¢UÉ ¸ÉÃjzÀAvÀºÀ D¹Û ¸ÀASÉåB 6/16 gÀ°è £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ºÉAqÀw ªÀÄ£É PÀnÖzÉÝÃªÉ CAzÀgÉ ¸ÀjAiÀÄ®è. C ªÀģɬÄAzÀ £À£ÀߣÀÄß ªÀÄvÀÄÛ £À£Àß ºÉAqÀwAiÀÄ£ÀÄß SÁ° ªÀiÁr¸À®Ä 1£Éà ¥ÀæwªÁ¢ ªÀÄvÀÄÛ PÀÄlÄA§zÀªÀgÀÄ M.J¸ï.£ÀA§gï 5813/2008 gÀ°è zÁªÁ ºÁQgÀĪÀ «ZÁgÀ £À£UÀ É UÉÆwÛzÉ CAzÀgÉ ¸Àj."
50. However, PW.2 in his cross-examination denied the suggestion that in order to nullify the interim order of status quo that was granted in O.S.5813/2008, this suit is filed through the present plaintiff. He also specifically admitted that after passing of the orders from the Court, he has constructed the house as shown in the photographs Ex.D.3 to D.5.
51. The way in which suggestions are made in the cross-examination of PW.2 clearly establishes the fact that the defendants themselves admitted that the plaintiff is in possession of the plaint schedule property. From the material available on record, it is
- 38 - O.S.7407/2008 also crystal clear that the plaintiff is claiming the plaint schedule property as site No.146 and on the other hand, defendants are claiming the very same property as property No.6/16.
52. The 1st defendant, who is examined as DW.1, has reiterated the written statement averments in his chief examination affidavit. However DW.1 in his cross-examination admitted that his father has purchased site No.6/1F from one Balammal, which carved out in Sy.No.158/2. He also admitted the fact that the property, which has been purchased by his father as site No.6/1F measuring 25X60 has been sold in favour of one Raghurama Reddy on 3.7.1974 measuring 15X60 feet on the eastern side and also admitted the fact that his father also sold the remaining extent of the site measuring 10X60 feet in favour of one Shanmukhappa. The plaintiff also produced certified copy of the sale deeds in this regard as per Ex.P.20 and P.21. DW.1 on the other hand denied the suggestion that as on the date of his
- 39 - O.S.7407/2008 father purchasing both the sites, there was no mention of site numbers in the sale deed. However in the sale deed Ex.D.11 and in the typed copy of which is marked as Ex.D.11(a) executed by Smt.Balammal in favour of the father of the defendants in the schedule though property is shown as carved out in Sy.No.158/2, but site numbers are not mentioned.
53. Later DW.1 in his cross-examination admitted the fact that site number is not mentioned in the sale deed that was executed in favour of his father.
54. One of the defence that was raised by the defendants in their written statement is that on the request of the husband of the plaintiff by name Alambadi Elumalai, his father has permitted the said Alambadi Elumalai to put up a hut in one of the corners of the site belongs to the defendants' father. However DW.1 in his cross-examination admitted that he has no document with him to show that his father has permitted the Alambadi Elumalai to put up a hut.
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55. One more suggestion is also made in the cross- examination of DW.1 by suggesting that in the Notification given by Karnataka Slum Clearance Board, the name of the defendants' father is also mentioned and this suggestion is denied by DW.1 in his cross-examination. However in Ex.P.12, at Slum No.342 and Hut No.334, the name of G.Govindaswamy son of Gopal also finds a place.
56. On careful perusal of evidence of plaintiff and her husband in this case, the same discloses that the plaintiff has not approached the Court with clean hands. But since this is only a suit for bare injunction, she has produced sufficient material before the Court to show that she is in lawful possession of site No.146 i.e. plaint schedule property as on the date of filing of the suit.
57. In the written arguments of the learned counsel for the plaintiff, he also highlighted some of the material facts. But the suggestions that are made out in the cross-examination of DW.1 clearly indicates the
- 41 - O.S.7407/2008 fact that the plaintiff and her husband are in lawful possession of the plaint schedule property as on the date of the suit.
58. Also perused the decisions relied upon by the learned counsel for the defendants. In the Judgment dated 25.3.2008 passed in Civil Appeal No.6191/2001, in the case of Anathula Sudhakar Vs. R.Buchi Reddy (Dead) by LRs and others, the Hon'ble Supreme Court at para-11.3 held as follows:
11.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction.
Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
59. On perusal of the record, the present defendants in their written statement at para-13 has admitted
- 42 - O.S.7407/2008 that one Alambadi Elumalai approached the defendants, their brother Gopi and Sister Kalavathi during 1998 and requested to build a hut on the northern part of written statement schedule property in an area measuring 202.50 square feet, which is morefully shown in the defendants' written statement 'A' schedule with a promise that he would vacate and deliver whenever the defendants, their brother and sister would ask him to vacate the property and moved by the Alambadi Elumalai poor status, the defendants, their brother and sister permitted the Alambadi Elumalai to stay in the written statement 'A' schedule property.
60. From this statement, it is crystal clear that the defendants permitted the said Alambadi Elumalai to stay in a portion of the property, which the defendants claim to be the owner. In addition to that, cross-examination of DW.1 also clearly indicates that the plaintiff in this case and her husband Alambadi Elumalai are in possession of the suit property. In
- 43 - O.S.7407/2008 addition to that, the plaintiff also produced Ex.P.1, Ex.P.16, Ex.P.17 and Ex.P.18 to show that they are in possession of plaint schedule property as on the date of the suit.
61. Considering the admitted facts in this case, in my humble view, the said decisions relied upon by the learned counsel for the defendants will not help the defendants in any way. However the defendants are at liberty to evict the plaintiff and her husband from the plaint schedule property in accordance with law.
62. As discussed earlier, this is only a suit for bare injunction and the scope of this suit is very limited and the title of the parties cannot be gone into in a suit for bare injunction, since such an adjudication is out side the scope of this suit.
63. It is also worth to mention that the plaintiff has suppressed the pendency of O.S.5813/2008, which is filed by the present defendants against the husband of the plaintiff by name Alambadi Elumalai. It is also
- 44 - O.S.7407/2008 worth to mention that any Gazette Notification published by the Government cannot be questioned in Civil Courts and the form and forum to question the Gazette Notification is different.
64. The way in which the defendants filed written statement and the way in which the defendants adduced evidence also clearly establishes the alleged interference of the defendants. Hence, on perusal of the material available on record, the plaintiff proves that she is in lawful possession of the plaint schedule property in respect of which the defendants claims to be the owner and as such they filed the suit in O.S.5813/2008 seeking possession. Accordingly I answer Issue No.1 and 2 'partly in the affirmative'
65. Issue No.3: The plaintiff proves that she is in lawful possession of the plaint schedule property as on the date of the suit. The plaintiff also proves the alleged interference of the defendants. However the plaintiff is entitled to be in possession of the suit property until and unless she is evicted in due process
- 45 - O.S.7407/2008 of law. Accordingly I answer issue No.3 'partly in the affirmative'.
66. Issue No.4: In view of the findings on issue No.1 to 3, I proceed to pass the following:
ORDER The instant suit filed by the plaintiff against the defendants is hereby partly decreed.
Parties are directed to bear their costs.
Permanent injunction is granted in favour of the plaintiff and against the defendants restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule property till the plaintiff is evicted in due process of law.
It is also made it clear that the parties are also bound by the Judgment and decree, which is likely to be passed in the pending suit in O.S.5813/2008.
- 46 - O.S.7407/2008 It is also further made it clear that the parties are also bound by the decision, which is likely to be passed in any title suit between the parties, if any, filed by the plaintiff or defendants.
(Dictated to the Judgment Writer, computerized print out taken thereof is corrected, signed and pronounced by me in Open Court on this the 15th day of June, 2015).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1: Smt. Vijaya. PW.2: Sri. Elumalai.
List of documents marked for the plaintiff:
Ex.P.1: Possession certificate
Ex.P.2: No objection certificate from Slum
Clearance Board dated 29.3.2008.
Ex.P.3: Letter issued by Slum board.
Ex.P.4: Invitation card.
Ex.P.5 to Photographs.
P.8:
Ex.P.5(a) Negatives.
to 8(a):
Ex.P.9: Copy of order sheet in O.S.3298/1996.
Ex.P.10: Copy of plaint in O.S.3298/1996
Ex.P.11: Endorsement given by Slum Clearance
Board.
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Ex.P.12: Gazette Notification.
Ex.P.13: Sketch.
Ex.P.14: ID card issued by Election Commission of
India
Ex.P.15: Birth Certificate.
Ex.P.16: ID card issued by Election Commission of
India
Ex.P.17 Adar cards
& P.18:
Ex.P.19: Certified copy of the registered sale deed
dated 27.12.1970.
Ex.P.20: Certified copy of the sale deed dated
3.7.1974.
Ex.P.21: Certified copy of the registered sale deed
dated 29.9.1988.
List of witnesses examined for the defendants:
D.W.1 G.Narasimha Murthy.
List of documents marked for the defendants:
Ex.D.1: Signature of plaintiff in Vakalath. Ex.D.2: Signature of plaintiff in postal acknowledgement.
Ex.D.3 to Photographs.
D.5:
Ex.D.6: Endorsement given by BBMP.
Ex.D.7: Endorsement given by Slum Board.
Ex.D.8: Endorsement given by BBMP.
Ex.D.9: Rough sketch.
Ex.D.10:
Ex.D.11: Certified copy of the sale deed dated
17.3.77.
Ex.D.12: Receipt for having paid betterment charge.
Ex.D.13: Certified copy of endorsement dated
27.9.82.
Ex.D.14: Certified copy of the ration card.
Ex.D.15: Death certificate of Govindaswamy.
Ex.D.16: Death certificate of Muniyamma.
Ex.D.17: Tax paid receipt.
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Ex.D.18: Assessment list extract.
Ex.D.19: Khatha certificate.
Ex.D.20: Rough sketch.
Ex.D.21: Certified copy of the order sheet in
O.S.5813/2008.
Ex.D.22: Certified copy of the I.A. and affidavit in
O.S.5813/2008.
Ex.D.23: Certified copy of the vakalath in
O.S.5813/2008/
Ex.D.24: Certified copy of the written statement
filed in O.S.5813/2008.
Ex.D.25: Certified copy of the property card issued
by Department of Survey Settlement.
Ex.D.26 Tax paid receipts. to D.30:
Ex.D.31 & Certified copy of khatha certificate and D.32: khatha extract.
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.