Bangalore District Court
Sri. M. Babu vs Smt. G V Rukmaniyamma on 8 April, 2015
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
BANGALORE
Dated on this the 8th day of April 2015
Present: Sri. R.B. Garasangi, B.A. LL.B [Spl],
XXXIX Additional City Civil & Judge,
Bangalore City.
ORIGINAL SUIT NO.10223/2005
Plaintiff: Sri. M. Babu
S/o Muniyappa,
Aged about 40 years,
Residing at No.1, Sunrise Colony,
Cholanayakanahalli,
R T Nagar Post,
Bangalore.
[By Sri. K.V.K., Advocate]
V/s
Defendants: 1. Smt. G V Rukmaniyamma
W/o G N Venkataramanappa,
Aged about 45 years,
Residing at Gunjuru Village,
Varthur Hobli,
Bangalore South Taluk
2. Sri. Lingegowda
S/o Late Cheluvaiah,
Aged about 48 years,
Residing at No.25,
1st Main, Maruthi Layout,
Srirampura,
Bangalore - 560 021.
3. Smt. A S Gayathri
W/o A N Swathanthra Kumar,
Aged about 44 years,
2 Original Suit 10223/05
R/a No.8/4, National High School Road,
Bangalore - 560 004.
4. Smt. A Vanitha
W/o A N Ashok Kumar
Aged about 37 years,
R/a No.2251, 2nd Cross,
Banashankari 2nd Stage,
Bangalore
5. Smt. Jyothi Raghuraman
W/o Raghuraman,
Aged about 35 years,
R/a No.26, 13th Main,
17th Cross, Malleshwaram,
Bangalore - 560 055.
[ For D1: By Sri. N.G., Advocate;
For D2: By Sri. M.R.V., Adv.;
For D3 and D4: By Sri.S.K.M., Adv.;
For D5: By Sri.S.S.S., Adv.]
Date of Institution of the suit : 20.12.2005
Nature of suit : Suit for permanent injunction
Date of commencement of
: 11.06.2008
evidence
Date on which the judgment is
: 08.03.2015
pronounced
Years Months Days
Duration taken for disposal :
09 02 18
(R.B. Garasangi)
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
JUDGMENT
The plaintiff has filed this suit seeking for the relief of perpetual injunction against the defendants no.1 to 5 in respect of suit schedule 3 Original Suit 10223/05 property, restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff and requested for decreeing the suit as prayed by him.
2. The brief averments of the plaint are as under:-
a) The plaintiff has contended that one Sri. Dodda Budugappa who is none other than the grand father of the plaintiff herein is the absolute owner in possession and enjoyment of the property bearing Sy.No.32/2, measuring 30 gts., situated at Cholanayakanahalli Village, Bangalore North Taluk. Late Dodda Budugappa had two sons namely, Muniyappa the father of plaintiff and Chandramurthy. The genealogical tree of Late Dodda Budugappa is produced. Further, he has contended that Dodda Budugappa was died in the year 2000 and after his demise 0-12 guntas of land in Sy.No.32/2 was fallen to the share of 2nd son of Chandramurthy by way of oral partition and khatha has been mutated in his favour. The remaining portion 0-16 guntas of land in the said survey number 32/2 of Cholanayakanahalli Village Bangalore North Taluk which is more fully described in the schedule to the plaint and referred to as Suit schedule property herein was fallen to the share of his 1st son Muniyappa. Since then, plaintiff and his family members are in peaceful possession and enjoyment of the suit schedule property. The khatha in respect of the suit schedule property is still standing n the name of Dodda Budugappa since he lived along with the plaintiff and his family members. The plaintiff and 4 Original Suit 10223/05 his family members are paying taxes to the authorities as and when which accrues due as the original owners and legal heirs of Late Dodda Budugappa and exercising all acts of ownership over the suit schedule property.
b) Further he has contended that on 17.12.2005, at about 11.00 a.m., defendants came near the suit schedule property and tried to interfere in the peaceful possession and enjoyment of suit property by the plaintiff by demarcating the boundaries of the suit schedule property. Thereafter, plaintiff immediately approached the jurisdictional police and lodged complaint. The Police have refused to register the same and directed the plaintiff to approach the Civil Court as the matter is civil in nature. Hence, plaintiff has filed the present suit against the defendants on the basis of cause of action arose on 17.12.2005 at about 11.00 A.M. and requested to decree the same as prayed by him.
3. In response to the court process, the defendant no.1 Rukmaniyamma appeared and filed written statement, contending that the suit of the plaintiff is not maintainable either in law or on facts and same is liable to be dismissed in limine. She has further contended that the plaintiff has approached this Court with unclean hands and created certain documents for the purpose of this case and on that ground, the suit is liable to be dismissed. She has further contended that the plaintiff has suppressed the all the real facts and misrepresented the same before this 5 Original Suit 10223/05 Court and suit is not maintainable for mis-joinder and non-joinder of necessary and proper parties. She has denied other averments in respect of peaceful possession and also documents, i.e, khatha stands in their name they are paying entire taxes to the suit property and she has also denied the contents of para no.5 of the plaint. Further, she has contended that plaintiff has filed this suit by wrongly describing the suit property. Further, she has contended that plaintiff and his father having received the entire sale consideration have executed absolute sale deed in favour of 1st defendant and it is astonishing that plaintiff's father on behalf of his family, sold the said property in 1997, now claiming that this defendant is totally a stranger and illegally trying to interfere with the said property. She has contended that plaintiff and his father have formed residential sites out of the land mentioned as schedule property and one of the residential site is sold to this defendant through registered sale deed dated 12.4.1997. So, suit of the plaintiff is liable to be dismissed on this ground.
4. The 1st defendant has submitted that suit property presently comes within the jurisdiction of BBMP. The 1st defendant contended that he already approached the BBMP for registration of khatha and the averment that the property described in the suit schedule property as an agricultural property is not tenable and the same is done by suppression of material facts. The plaintiff is not all in possession of any portion of the schedule property and hence, suit is liable to be dismissed with exemplary 6 Original Suit 10223/05 costs. There is no cause of action for the suit and the one alleged in the plaint is illogical, imaginary and suit may be dismissed. The plaintiff has wrongly described the suit property with false boundaries. On that ground also, suit of the plaintiff is liable to be dismissed against the defendants.
5. The 2nd defendant Sri. C. Lingegowda has filed written statement, wherein, he has contended that the plaintiff has shown incorrect address of 3rd defendant with an intention to get exparte order. Wherein, he has contended that description of the schedule property is not correct and same is not survey number as indicated. The entire property is within the jurisdiction of BMP, now comes within its jurisdiction and property number and ward number are also given and even individual property identification numbers are also given to the separate portions in said old survey number. The suit is not maintainable either in law or on facts and same is not maintainable under the various provisions of Specific Relief Act. Suit of the plaintiff for bare injunction without declaration is also not maintainable. The plaintiff has filed the present suit with false, frivolous and vexatious allegations against the defendants. The allegation made by the plaintiff in paragraphs 3 and 4 are denied by this defendant as not correct. Even he has contended that he has no knowledge about the death of Dodda Budugappa.
7 Original Suit 10223/05
6. Further, the 2nd defendant has contended that plaintiff himself sold the portion out of entire survey number 32/2 i.e. site with small construction thereon bearing old village Panchayath No.835/1 (also No.1) measuring East to West 32 feet and North to South 50 feet to this defendant for a sum of Rs. 51,000/- under regd. Sale deed dated 19.5.1997 which is registered before the Sub-Registrar's office. Wherein, he has contended that he is in actual possession of suit property and he has paid betterment charges and taxes to the concerned authority. Even he has denied the para no.5 of the plaint wherein, plaintiff has contended that the defendant is a stranger, but this defendant has right title and interest over the suit property. Further, he has taken contention that there is no cause of action for the plaintiff to file present suit. More over, plaint of the plaintiff's suit is liable to the rejected under Order 7 Rule 11 of C.,P.C. and also various provisions of Specific Relief act. The plaintiff in collusion with others in order to defraud this defendant has filed the present suit on the foot of false and untrue allegations. So, he has requested for dismissal of the suit.
7. The third defendant has filed written statement wherein, she has admitted that one Sri. Dodda Budagappa is the grand father of the plaintiff and Sri. Dodda Budugappa was the absolute owner of the schedule property by virtue of partition deed dated 30.6.1944. She has further admitted that Dodda Budugappa had two sons namely Muniyapa the 8 Original Suit 10223/05 father of the plaintiff and Chandramurthy. It may be true that Late Dodda Budugappa died in the year 2000. It is false to say that after his demise 12 guntas of land in Sy.No.32/2 was fallen to the share of his 2nd son Chandramurthy by way of oral partition deed and khatha has been mutated in his favour and it is false to state that remaining portion of 16 guntas of land in Sy.No.32/2 of Cholanayakanahalli village, Bangalore North Taluk was fallen to the share of his 1st son, Muniyappa. She has further averred in her written statement that it is false that plaintiff and his family members are in peaceful possession and enjoyment of the suit schedule property and it is also false to state that the khatha was in the name of Late Dodda Budugappa since he was lived along with the plaintiff and his family members. So, all the averments made by the plaintiff are false and the plaintiff is put to strict proof of the same. She denied other averments of the plaint.
8. Further, the 3rd defendant has contended that true fact of the matter is Dodda Budugappa and his family members approached the third defendant in the year 1997 to sell a portion of the schedule property and pleaded that for want of funds to meet their family necessities, they intend to sell the portion of the schedule property. Hence Sri. Dodda Budugappa and his two sons and one of the family member by name Smt. Choodamani executed portion of the schedule property in favour of the 3rd defendant for a consideration of Rs. 3,80,000/- sale deed dt.19.9.1997.
9 Original Suit 10223/05 She has contended that third defendant has sold the property in the year 2006. Hence, the original documents of the portion of the schedule property have been delivered to her vendee. So, third defendant is in peaceful possession and enjoyment of the suit property. The plaintiff is aware of the above said sale deed between his family members. The plaintiff knows the legal necessities and the circumstances under which his grand father and his father and other family members executed the sale deed. So, the plaintiff has filed this false suit to gain some more money from the defendants, as the property value is raising day by day.
9. The 4th defendant has also filed written statement with the contention which has been urged by third defendant. Specifically she has contended that Dodda Budugappa and his family members approached the 4th defendant to sell portion of the schedule property and they have pleaded that for want of funds to meet their family necessities, they intend to sell schedule property and hence, Dodda Budugappa and his two sons and one of the family member by name, Choodamani executed portion of the schedule property in favour of 4th defendant for a consideration of Rs. 3,80,000/- through sale deed dated 19.9.1997. So, 4th defendant is in peaceful possession and enjoyment of suit property. The plaintiff has got awareness of this fact. Even then, he has filed false suit against defendants. Hence, she has requested for dismissal of the suit.
10 Original Suit 10223/05
10. In view of the above pleadings of the parties, the following issues have been framed by this Court:-
Issues
1) Whether the plaintiff proves he is in lawful possession and enjoyment of the suit schedule property?
2) Whether the plaintiff further proves the defendants are trying to interfere over the suit schedule property?
3) Whether the defendants prove they have purchased the portion of the suit schedule properties from the plaintiff, his father and his grand father under the registered sale deed and they are in possession?
4) Whether the plaintiff is entitled for the injunction as sought for?
5) What order or decree?
[
11. In order to prove the above issues, the plaintiff got examined himself as PW-1 and got marked Ex.P-1 to 4 and closed his side. The 1st defendant got examined herself as DW-1 and got marked Ex.D-1 to D-61 and three more witnesses are examined as DWs.2 to 4.
12. Heard the arguments. Perused the records.
13. My findings on the above issues are as follows:
Issue No.1: In the negative;
Issue No.2: In the negative;
Issue No.3: In the Affirmative;
11 Original Suit 10223/05 Issue No.4: In the negative;
Issue No.5: As per final order, for the following:-
REASONS
14. ISSUES 1 TO 4:
The learned counsel for the 2nd defendant has argued by relying the decisions of Hon'ble High Court of Karnataka reported in AIR 2008 SC page 2033 and ILR 1991 Kar 4401 with photos of full pledged constructed house.
The defendants 3 and 4 have also submitted written arguments and relied the following decisions, they are:
(1) ILR 1999 Kar 1524 (A.V. Rangacharya and another Vs. Pillanjinappa and another) - Indian Registration Act -
The effect of registered documents under Section 49 and 50 of the Registration Act.
(2) AIR 2015 SC page 2552
15. The 5th defendant has also filed written arguments and relied the following decisions, they are:
1) AIR 2002 Rajastan 159 (Shetra Pal Vs. Smt. Renu and others)
2) AIR 2003 NOC 180 (A.P) (Gundala Sathaiah Vs. Gundala Mallaiah)
3) AIR 1997 Kerala page 165 (Ishwara Bhat Vs. Annappa Naika) 12 Original Suit 10223/05
4) AIR 2007 Karnataka page 40 (Smt. Nirmala Vs. Naveen Chhaggar and another)
16. All these issues are inter-related, hence, they are taken together for common discussion. The burden of proof of the above said issues lies on the plaintiff. In order to prove the same, the plaintiff has examined himself as PW-1 and got marked 4 documents as per Ex.P-1 to
4. The contents of the evidence affidavit are nothing but replica of plaint averments. Now this court has to consider whether the plaintiff has succeeded in proving that he is in peaceful possession and enjoyment of the suit schedule property as on the date of the suit and the alleged interference by the defendants. The plaintiff has produced 4 documents as per Ex.P-1 to 4. Ex.P-1 is the genealogical tree. Ex.P-2 is the mutation extract. Ex.P-3 is the RTC and Ex.P-4 is the tax paid receipt.
17. In order to disprove the evidence of plaintiff, the defendants have produced the documents. Ex.D-1 is the original Registered sale deed dated 12.09.1997. Ex.D-2 is the confirmation deed. Ex.D-3 is the tax paid receipts for the year 2011-12. Ex.D-4 is another tax paid receipt. Ex.D-5 is endorsement given by police. Ex.D-6 is the card issued by BWSSB. Ex.D-7 to 10 are the four tax paid receipts. Ex.D-11 to 13 are the three electricity bills. Ex.D-14 to 16 are the three receipts in respect of water bills. Ex.D-17 is the water bill. Ex.D-18 and 19 are the tax paid receipts. Ex.D-20 and 21 are two tax paid receipts. Ex.D-22 is the special 13 Original Suit 10223/05 notice by BMP for suvarna khata. Ex.D-23 to 25 are the tax paid receipts. Ex.D-26 and 27 are the electricity bills and receipts. Ex.D-28 and 29 are another electricity bill and receipt. Ex.D-30 to 32 are the electricity receipts. Ex.D-33 and 34 are another electricity bill with receipt. Ex.D-35 to 41 are the seven receipts. Ex.D-42 and 43 are the water bill and receipt. Ex.D-44 is the letter given by bank. Ex.D-45 is the original Registered sale deed dated 19.05.1997 executed by plaintiff in their favour. Ex.D-46 is the acknowledgement give by BMP about payment of betterment charges. Ex.D-47 is the receipt about payment of betterment charges. Ex.D-48 and 49 are the two tax paid receipts. Ex.D-50 is the receipt in respect of payment of fees for registration of documents. Ex.D- 51 is the notice issued by BMP u/s.143 of Karnataka Municipal Act 1976. Ex.D-52 is the khata certificate. Ex.D-53 is another tax paid receipt. Ex.D-54 is the approved plan of construction. Ex.D-55 and 56 are the two ECs. Ex.D-57 is the original general power of attorney executed by plaintiff. Ex.D-58 is the affidavit. Ex.D-59 is the certified copy of the sale deed dated 20.03.1992. Ex.D-60 and 61are the tax paid receipts.
18. On going through the above said documents, it is crystal clear that the 1st defendant is in possession of the suit schedule property because he has produced electricity bills, tax paid receipts and water bills. More over, it is necessary to consider the endorsement given by police 14 Original Suit 10223/05 marked at Ex.D-5, which discloses that there is interference caused by the plaintiff.
19. Now the plaintiff has filed this suit for the relief of permanent injunction in respect of the suit schedule property bearing Sy.no.32/2 measuring 16 guntas situated at Cholanayakanahalli village, Bangalore North Taluk. In order to prove his peaceful possession and enjoyment over the suit schedule property, the plaintiff has produced 4 documents. But those documents are not denoting about peaceful possession of the plaintiff over the suit schedule property. Because the 2nd defendant has produced photographs along with synopsis in respect of decisions which are referred above. On perusal of photographs, it reveals that there is fully constructed house in existence. Now this court has to consider whether the plaintiff is in peaceful possession of the suit schedule property as on the date of the suit. The documents which are produced by the plaintiff i.e., genealogical tree dated 14.11.2005, mutation entry dated 22.08.2005, RTC extract for the year 2005-06 and revenue assessment dated 14.11.2008. On the basis of the above said documents, this court cannot come to conclusion that the plaintiff is in peaceful possession and enjoyment over the suit schedule property as on the date of the suit. Because, he has to produce supportive documents of possession. On comparison of documents which are produced by the defendants i.e., electricity bills and water bills which denote that the 15 Original Suit 10223/05 defendants are in peaceful possession and enjoyment of the suit schedule property. So, the plaintiff has failed to prove his lawful possession by producing supportive documents about his peaceful possession as per decision of Hon'ble High Court reported in ILR 2014 KAR 4716 (Dharwad Bench) Vasudev and others Vs. Tukaram Bhimappa Naik and others), wherein it is held that:
"C.P.C., 1908-Section 100-Regular Second Appeal-Suit of permanent injunction - Claim made on the basis of d without any supportive document of possession-Dismissal of suit by the Trial Court"
20. The defendants have proved that they are in peaceful possession of the suit schedule property. So, the question of consideration of interference by the defendants does not arise at all. More over, it is well established principles of law that the plaintiff has to prove his case independently not on the weakness of the defendants. So, the plaintiff has utterly failed to prove his case before this court. However, the defendants have filed complaint against the plaintiff. In view of the above reasons, suit of the plaintiff is liable to be dismissed. Hence, I answer the above said Issues No.1,2 and 4 in the negative and issue no.3 in the affirmative.
21. ISSUE NO.4: In view of the findings on the above Issues, I proceed to pass the following:-
16 Original Suit 10223/05 ORDER Suit of the plaintiff is hereby dismissed.
The parties should bear their own cost.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected by me and then pronounced in the open court, this the 8th day of April 2015) (R.B. Garasangi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
ANNEXURE:-
1. List of witnesses examined for plaintiffs:
P.W.1 : Sri. M Babu
2. List of documents exhibited for plaintiff:
Ex.P.1 : Family Geneological tree
Ex.P.2 : Certified Mutation Extract in respect of suit
property
Ex.P.3 : RTC Extract in respect of suit property
Ex.P.4 : Tax paid receipt
3. List of witnesses examined for defendants:
D.W.1 : Smt. Rukmaniyamma
D.W.2 : Sri. C. Lingegowda
D.W.3 : A. Krishna
D.W.4 : Smt. Jyothi Raghuraman
4. List of documents exhibited for defendants:
Ex.D.1 : Original Regd. Sale Deed dt.12.9.1997 17 Original Suit 10223/05 Ex.D.2 Confirmation Deed Ex.D.3 & D4 : Tax paid receipts for the year 2011-12 Ex.D.5 : Endorsement given by Police Ex.D.6 : Card issued by BWSSB Ex.D.7 to D10 : Four Tax paid receipts Ex.D.11 to D13 : Three Electricity Bills Ex.D.14 to D16 : Three Receipts in respect of Water Bills Ex.D.17 : Water Bill Ex.D.18 & 19 : Tax paid receipts Ex.D.20 & 21 : Another two Tax paid receipts Ex.D.22 : Special Notice by BMP for Suvarna Khatha Ex.D.23 to D25 : Another three tax paid receipts Ex.D.26 & D27 : Electricity Bills and Receipts Ex.D.28 & D29 : Another Electricity Bill and Receipt Ex.D.30 to D32 : 3 Electricity Receipts Ex.D.33 & D34 : Another electricity bill with receipt Ex.D.35 to D41 : 7 Receipts Ex.D.42 & D43 : Water Bill and Receipt Ex.D.44 : Letter given by Bank Ex.D.45 : Original Regd. Sale deed dt.19.5.1997 Ex.D.45(a) to (d) : Signatures Ex.D.46 : Acknowledgement given by BMP Ex.D.47 : Receipt in respect of betterment charges Ex.D.48 & D49 : 2 Tax paid Receipts Ex.D.50 : Receipt Ex.D.51 : Notice issued by BMP under Section 153 of KMAct 1976 Ex.D.52 : Khatha Certificate Ex.D.53 : Another tax paid receipt Ex.D.54 : Approved plan of construction Ex.D.55 & D56 : Two Encumbrance certificates Ex.D.57 : Original General Power of Attorney Ex.D.57(a) : Signature of plaintiff Ex.D.57(b) : Signature of brother of plaintiff Ex.D.58 : Affidavit Ex.D.58(a) : Signature of plaintiff Ex.D.59 : Certified copy of sale deed dt.20.3.1992 Ex.D.60 & D61 : Two tax paid receipts for the year 2012-13 & 2013-14 XXXIX Additional City Civil & Sessions Judge, Bangalore City.
18 Original Suit 10223/05 08.04.2015 P: By Sri. KVK D1: By Sri. NG D2: By Sri. MRV D3 & D4: By Sri. SKM D5: By Sri. SSS For Judgment, (Operative portion of the Judgment pronounced in the open Court vide separate sheets) ORDER Suit of the plaintiff is hereby dismissed.
The parties should bear their own cost.
Draw decree accordingly.
19 Original Suit 10223/05 XXXIX Additional City Civil & Sessions Judge, Bangalore City.