Bangalore District Court
Anjinappa vs Smt.Ramakka on 11 September, 2018
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 11th day of September 2018
O.S.No.25060/2015
PLAINTIFF : Anjinappa
Aged about 37 years
Son of Late Thimmaiah
Residing at Maheshwarinagar
Mahadevapura
Mahadevapura Post
Bangalore-560 048
(By Sri.K.P., Advocate)
V/s.
DEFENDANTS : 1. Smt.Ramakka
Aged about 77 years
W/o Kempanna
Residing at Venkateshwara Layout
Mahadevapura
Mahadevapura Post
Bangalore-560 048
2. V.Chandra
Aged about 38 years
Son of G.Venkateshappa
Residing at No.15
Maheshwarinagar
Whitefield Road
Mahadevapura Post
-2- OS.25060/2015
Bangalore-560 048
(D1 Exparate
D2 By Sri.S.G.A., Advocate)
Date of Institution of the Suit: 17.01.2015
Nature of the suit
(Suit on Pronote, suit for Permanent injunction
declaration & possession, suit
for injunction)
Date of commencement of 30.05.2017
recording of evidence:
Date on which the Judgment 11.09.2018
was pronounced:
Total Duration: Year/s Month/s Day/s
03 07 24
JUDGMENT
The plaintiff filed this suit for permanent injunction restraining the defendants, their heirs, henchmen, legal heirs, assignees, representatives, legatees and authorized persons etc. from interfering with peaceful possession and enjoyment of the suit schedule property by him and to pass such other reliefs.
-3- OS.25060/2015
2. The suit schedule property as described in the plaint is as under:-
SCHEDULE All that piece and parcel of property bearing southern portion of vacant site No.64, Khatha No.461, old No.446/64/58, Mahadevapura CMC Holder Khatha Endorsement No.158/2000-01, Old Khatha No.302, Later Mahadevapura CMC Khatha No.446, New No.158 carved out of the erstwhile property No.58 situated at Mahadevapura, K.R.Puram Hobli, Bangalore East Taluk, Bangalore earlier Bangalore South Taluk, now comes under BBMP measuring east to west: 29 feet and north to south: 20.5 feet in all measuring 594.5 out of 1189 sq.ft. and bounded on:
East by : Property belongs to Samudaya Bhavan West by : Road North by : Northern portion of same property sold to Rathnamma South by : Property belongs to Smt.Jamuna
-4- OS.25060/2015
3. The plaint averments in brief is as under:
The plaintiff is the absolute owner of the suit schedule property having acquired the same from M.Shankar and K.H.Geetha by virtue of sale deed dated 15.12.2014. The said M.Shankar and K.H.Geetha have acquired the schedule property by virtue of sale deed dated 27.1.2011. The khatha of the schedule property standing in the name of plaintiff's vendor.
The plaintiff's properties and other properties originally belongs to Smt.Ramakka and Narayanappa @ Muninarayanappa and Krishnappa, they obtained the same through registered gift deed dated 5.8.1961. Thereafter, the defendant No.1 alienated the some properties in favour of different persons.
The said Ramakka alienated and executed the General Power of Attorney and affidavit in favour of R.Tony S/o Rayappan on 24.1.1996 and on the same day she delivered the possession.
-5- OS.25060/2015 The said Ramakka with respect to the said property executed the registered sale deed in favour of R.Tony S/o Rayappan on 19.10.2000 and at that time the said property is agricultural property. The said Ramakka was prepared a layout plan without any permission. The said Tony paid the tax to the concerned Mahadevapura CMC and obtained the khatha endorsement and possession khatha certificate in his name on 12.2.2001. With respect to the said property said R.Tony executed the General Power of Attorney and affidavit on 3.10.2009 in favour of S.Manohar S/o Samuel Paul, who is in peaceful possession and enjoyment of the same and paid tax to the concerned authority. Thereafter, the said S.Manohar executed the sale deed in favour of M.Shankar and K.H.Geetha on 27.11.2011 and thereafter they have obtained BBMP A Khatha in their favour and they are in peaceful possession and enjoyment of the same in the year 2014 .
The said M.Shankar and K.H.Geetha both are tried to alienate the said property in favour of prospective purchasers,
-6- OS.25060/2015 at that time subsequently came to their knowledge that the measurement of the said property is interchanged by typing mistake in Page No.2 and 4 of schedule of sale deed. The measurement east to west 29 feet and north to south 41 feet is wrongly mentioned as east to west 41 feet and north to south 29 feet and mis-described respectively and this is causing inconvenience to purchaser and there is a need to rectify this mis-description for the purpose of records and posterity and hence they have obtained Rectification Deed dated 15.12.2014 from their previous vendor i.e. R.Tony's General Power of Attorney holder S.Manohar S/o Samuel Paul. Thereafter, M.Shankar and K.H.Geetha both are alienated and executed the sale deed in his favour in respect of southern portion of site No.64 of Mahadevapura. They also executed sale deed in favour of Smt.Rathnamma in respect of northern portion of site No.64 of Mahadevapura. After purchasing the said property, the plaintiff is in peaceful possession and enjoyment of the said property.
-7- OS.25060/2015
The said Ramakka alienated the Site No.64 of
Mahadevapura in the year 1996. But in the year 2012 the said Smt.Ramakka and her brother Krishnappa partitioned the same through partition deed dated 9.7.2012. Thereafter, Smt.Ramakka alienated and executed fabricated and forged sale deed dated 4.9.2014 in favour of defendant No.2 i.e. site No.63 of Mahadevapura, but there is no any northern portion of site No.63. Without possession of the property the defendant No.2 is trying to snatch the valuable property of plaintiff. Defendant No.1 and her brother Krishnappa both are colluded and created the registered partition deed dated 9.7.2012 and defendant No.1 and defendant No.2 both are created the registered sale deed dated 4.9.2014 to snatch the valuable property of plaintiff.
From the date of purchase, the plaintiff is in uninterrupted peaceful possession and enjoyment of the suit schedule property as absolute owner and got transferred khatha in his name.
-8- OS.25060/2015 The defendants are utter strangers to the suit schedule property. The defendants and their henchmen are trying to cause unnecessary interference in the schedule property on 16.1.2015. The plaintiff has resisted the illegal acts of the defendants with the intervention of well wishers, elders and friends. When the plaintiff went to the police station to lodge a complaint, the police advised him to approach civil court of law as matter is civil in nature. The defendants are having no right, title, interest and semblance of right upon the schedule property is illegally claiming and trying to interfere with the physical possession and enjoyment of the suit schedule property by him. Hence prays to decree the suit.
4. Upon service of summons, the defendant No.1 remained absent and he was placed exparte.
5. The written statement schedule property of defendant No.2 is as under:
-9- OS.25060/2015
SCHEDULE
All that piece and parcel of property bearing northern portion of vacant site No.63, Khatha No.63/58, property No.58 presently BBMP Form-B property register extract Sl.No.1132 situated at Maheshwari Nagar, Mahadevapura, K.R.Puram Hobli, Bangalore East Taluk presently comes under BBMP measuring east to west: 30 feet and north to south: 20 feet totally measuring 600 sq.ft. and bounded on:
East by : Private property
West by : 25 feet Road
North by : Site No.64
South by : Remaining southern portion of site No.63
6. The defendant No.2 appeared before the court through his counsel and filed written statement contending that he is the absolute owner and in possession and enjoyment of the suit schedule property. He has purchased the same under registered sale deed dated 4.9.2014 and since then he is in possession and enjoyment of the same. The
- 10 - OS.25060/2015 schedule property originally belongs to one Ramakka W/o Kempanna, who acquired the same vide Item No.18 of A schedule property by way of registered partition deed dated 02.07.2012. Since then she has been in possession and enjoyment of the said property.
Since from purchase he is in peaceful possession of the suit schedule property and enjoying the same. BBMP khatha of the schedule property stands in the name of plaintiff and he has paid tax to the concerned authority for the period from 2008-09 to 2014-15.
The defendant No.2 and plaintiff's properties are originally belongs to Smt.Ramakka and she has formed the entire layout and she has sold the sites in favour of plaintiff and himself and other different persons. In respect of Site No.64 of plaintiff's property the said Ramakka executed the registered sale deed in favour of R.Tony S/o Rayappan on 19.10.2000. After getting the sale deed R.Tony has become the absolute owner of the said site No.64 and he sold the same through a General Power of Attorney holder S.Manohar
- 11 - OS.25060/2015 S/o Samuel Paul in favour of M.Shankar and Smt.K.H.Geetha on 27.11.2011. The said M.Shankar and K.H.Geetha without any basic document and proof they obtained a Rectification Deed by rectifying the measurement dated 15.12.2014 only from their previous vendor i.e. R.Tony through General Power of Attorney holder S.Manohar S/o Samuel Paul and this rectification deed has not confirmed by the original layout owner Smt.Ramakka. After getting the colluding rectification deed the suit schedule property has been sold in favour of plaintiff through registered sale deed dated 15.12.204. Even though there is no any southern portion of suit schedule property and without any possession or existence of the property the plaintiff is intending to snatch the valuable property of him, M.Shankar and Smt.K.H.Geetha and R.Tony through General Power of Attorney holder S.Manohar are colluded and created the registered rectification deed dated 15.12.2014 and with the help of said rectification deed M.Shankar and Smt.K.H.Geetha both are created the registered sale deed dated 15.12.2014. The plaintiff is
- 12 - OS.25060/2015 knowing fully the entire fact, he has purchased the said site No.64 only to snatching the valuable property of him. Hence, prayed to dismiss the suit.
7. On the basis of the above pleadings of both the parties, the following issues have been framed by my learned predecessor in office:-
1) Whether the plaintiff proves his lawful possession and enjoyment of suit schedule property as on the date of filing this suit?
2) Whether the plaintiff proves the alleged interference by the defendants?
3) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
4) What order or decree?
8. The plaintiff in order to prove the case examined himself as PW1 and got marked Ex.P.1 to P.52. The
- 13 - OS.25060/2015 defendant No.2 examined himself as DW1 and got marked Ex.D.1 to D.3.
9. Heard the arguments and perused the records of the case.
10. My findings to the above issues are as under:
Issue No.1 : In the negative
Issue No.2 : Does not arise for
consideration
Issue No.3 : In the negative
Issue No.4 : As per the final order,
for the following;
REASONS
11. ISSUE No.1 and 2:- Since these Issues are
interconnected hence they are taken up together common discussion in order to avoid repetition of facts and evidence.
- 14 - OS.25060/2015
12. The plaintiff filed this suit for permanent
injunction restraining the defendants from interfering with his peaceful possession and enjoyment over the suit schedule property. The burden of proving the Issue No.1 and 2 is on the plaintiff.
13. The learned Advocate appearing for the plaintiff argued that the plaintiff purchased the suit schedule property under the registered sale deed dated 15.12.2014 and accordingly he is in possession and enjoyment of the same by changing the khatha to his name and paying the taxes to the local authority. There was mistake in the measurement in the sale deed of the vendor of the plaintiff and the same is rectified and accordingly the same measurement is mentioned in his sale deed. The defendant, who is a stranger to the suit schedule property trying to cause unnecessary interference. The vendor of the defendant No.2, who is the defendant No.1 though she has sold Site No.64 under sale deed dated 19.10.2000 to one R.Tony S/o Rayappan, but even after that
- 15 - OS.25060/2015 the said Site No.64 is included by the defendant No.1 in the partition deed dated 9.7.2012 and created the Site as shown as item No.18 of it and sold the same to the defendant No.2 and on the basis of it the defendant No.2 is interfering with the possession and enjoyment of the suit schedule property by the plaintiff.
14. The learned Advocate appearing for the defendant No.2 argued that the defendant No.2 is the owner of northern half of Site No.64, purchased the same under the registered sale deed dated 4.9.2014. The vendors of the plaintiff without any basic document rectified the measurement and thereby the plaintiff himself interfering in the possession and enjoyment of northern half Site No.64 of the defendant and hence the question of interference by the defendant do not arise.
15. The plaintiff filed his affidavit in lieu of examination-in-chief of PW1, wherein he has reiterated the
- 16 - OS.25060/2015 averments made in the plaint stating that the suit schedule property originally belongs to Ramakka and she prepared a layout plan without any permission and she sold the suit schedule property to one R.Tony S/o Rayappan on 19.10.2000 and he in turn sold the same to M.Shankar and K.H.Geetha on 27.11.2011 and on 15.12.2014 the General Power of Attorney holder of R.Tony executed rectification sale deed in favour of M.Shankar and K.H.Geetha and on the same day the said M.Shankar and K.H.Geetha sold half of the property measuring 29 X 20.5 feet in favour of him and he is in possession and enjoyment of the suit schedule property. The said Ramakka fabricated the partition deed dated 9.7.2012 and forged sale deed dated 4.9.2014 in favour of defendant No.2 with respect to the Site No.63, but there is no any northern half of Site No.63 and the defendant No.2 without possession over it trying to snatch the suit schedule property.
- 17 - OS.25060/2015
16. The defendant denied the case of the plaintiff and contended that he is the owner in possession of northern Site No.63. The suit schedule property and his property originally belongs to Ramakka and she formed layout and she sold the sites in favour of him and the plaintiff and in respect of site No.64 the said Ramakka executed sale deed in favour of R.Tony S/o Rayappan on 19.10.2000 and thereafter they through their power of attorney sold the same to M.Shankar and K.H.Geetha on 27.11.2001 and thereafter the said M.Shankar and K.H.Geetha without any basic document and proof obtained rectification deed dated 15.12.2014 by rectifying the measurement and thereafter the said M.Shankar and K.H.Geetha sold the suit schedule property in favour of the plaintiff on 15.12.2004 even though there is no any southern portion of suit schedule property and without any possession or existence the plaintiff is intending to snatch his property.
- 18 - OS.25060/2015
17. The plaintiff in order to prove his case has produced as many as 52 documents. Firstly, I would like to consider the Ex.P.8, P.9 and P.48. Ex.P.8 - gift deed dated 5.8.1961 discloses that Bachamma W/o Venkatappa gifted land bearing Sy.No.151/2 of Mahadevapura Village measuring 3 acres 6 guntas, land bearing Sy.No.58 of Mahadevapura Village measuring 5 acres and a Mangalore tiled house with back yard to children of her younger sister by name Ramakka i.e. defendant No.1, Narayanappa and Krishnappa. In the schedule of the plaint, it is shown that the suit schedule property is carved out of erstwhile property No.58. From this it is clear that the plaintiff claming that the suit schedule property is the portion of Sy.No.58, which is totally measuring 5 acres. In the plaint itself at Para No.4(c) it is stated that the defendant No.1 prepared layout plan without any permission and without any lay out plan.
18. The Ex.P.9 - sale deed dated 19.10.2000 discloses that the defendant No.1 sold the Site No.64 measuring 41 X
- 19 - OS.25060/2015 29 feet in favour of R.Tony S/o Rayappan. The property described in Ex.P.9 is as under:
" ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, PÀȵÀÚgÁd¥ÀÅgÀ ºÉÆç½, ªÀĺÀzÉêÀ¥ÀÅgÀ £ÀUÀgÀ¸À¨sÉ ªÁå¦ÛUÉ M¼À¥ÀnÖgÀĪÀ ªÀĺÀzÉêÀ¥ÀÅgÀ UÁæªÀÄzÀ°ègÀĪÀ ¸ÉÊmï £ÀA.64, SÁvÁ £ÀA.302 ªÀżÀî ¸ÀéwÛ£À £ÀA§gï 58 gÀ°è F ¢£À ¤ªÀÄUÉ PÀæAiÀÄ ªÀiÁrPÉÆlÄÖ ¤ªÀÄä ¸Áé¢üãÀ ¥Àr¹gÀĪÀ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀéwÛUÉ ZÉPÀÄ̧A¢ B ¥ÀǪÀðPÉÌ B ¨ÉÃgÉAiÀĪÀgÀ ¸ÀévÀÄÛ ¥À²ª Ñ ÀÄPÉÌ B 65£Éà £ÀA§gï ¸ÉÊlÄ GvÀÛgÀPÉÌ B 63£Éà £ÀA§gï ¸ÉÊlÄ zÀQëtPÉÌ B gÀ¸ÉÛ F ªÀÄzsÉå EgÀvÀPÀÌ ¥ÀǪÀð¢AzÀ ¥À²ÑªÀÄPÉÌ 41 CrUÀ¼ÀÄ ªÀÄvÀÄÛ GvÀÛgÀ¢AzÀ zÀQëtPÉÌ 29 DrUÀ¼ÀÄ F jÃw C¼ÀvÉAiÀÄ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀévÀÄÛ F ±ÀÄzÀÝ PÀæAiÀÄ¥ÀvÀæPÉÌ M¼À¥ÀnÖgÀÄvÀÛzÉ. "
19. From P.48 - partition deed dated 9.7.2012, it is clear that defendant No.1 and her brother Krishnappa got the site properties, which are got under the gift deed, which are formed in Sy.No.58 of Mahadevapura Village and in that item No.18 of the A Schedule of it reads thus:
"¨ÉAUÀ¼ÀÆgÀÄ ¥ÀǪÀð vÁ®ÆèPÀÄ PÀȵÀÚgÁd¥ÀÅgÀ ºÉÆç½, ºÁ° §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁå¦ÛUÉ M¼À¥ÀqÀĪÀ ªÀĺÀzÉêÀ¥ÀÅgÀ UÁæªÀÄzÀ GvÀÛgÁzÀsð ¨sÁUÀzÀ ¸ÉÊmï £ÀA§gï 63, ¸ÀéwÛ£À £ÀA§gï 58
- 20 - OS.25060/2015 gÀ°ègÀĪÀ «¹ÛÃtð ¥ÀǪÀð-¥À²ÑªÄÀ B 30 CrUÀ¼ÀÄ ªÀÄvÀÄÛ GvÀÛgÀ - zÀQët B 20 CrUÀ¼ÀÄ, MlÄÖ 600 ZÀzÀgÀ CrUÀ¼À°ègÀĪÀ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀéwÛUÉ ZÉPÀÄ̧A¢B ¥ÀǪÀðPÉÌ B ¨ÉÃgÉAiÀĪÀgÀ ¸ÀévÀÄÛ ¥À²ª Ñ ÀÄPÉÌ B gÀ¸ÉÛ GvÀÛgÀPÉÌ B ¸ÉÊmï £ÀA§gï 64 zÀQëtPÉÌ B EzÉà ¸ÉÊmï £ÀA.63 gÀ G½PÉ ¸ÀévÀÄÛ "
20. In the same Ex.P.48 the item No.4 of the B Schedule fallen to the share of Krishnappa reads thus:
"¨ÉAUÀ¼ÀÆgÀÄ ¥ÀǪÀð vÁ®ÆèPÀÄ PÀȵÀÚgÁd¥ÀÅgÀ ºÉÆç½, ºÁ° §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁå¦ÛUÉ M¼À¥q À ÀĪÀ ªÀĺÀzÉêÀ¥ÀÅgÀ UÁæªÀÄzÀ ¸ÉÊmï £ÀA§gï 63 ªÀÄvÀÄÛ 64 ¸ÀéwÛ£À £ÀA§gï 58 gÀ°ègÀĪÀ «¹ÛÃtð ¥ÀǪÀð-¥À²ÑªÀÄ GvÀÛgz À À PÀqÉ B 59 CrUÀ¼ÀÄ zÀQëtzÀ PÀqÉ 70 CrUÀ¼ÀÄ ªÀÄvÀÄÛ GvÀÛgÀ - zÀQët ¥ÀǪÀðzÀ PÀqÉ B 40 CrUÀ¼ÀÄ, ¥À²ÑªÀÄzÀ PÀqÉ 10 CrUÀ¼ÀÄ, MlÄÖ 1612.5 ZÀzÀgÀ CrUÀ¼À°ègÀĪÀ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀéwÛUÉ ZÉPÀÄ̧A¢B ¥ÀǪÀðPÉÌ B ¸ÉÊmï £ÀA§gï 65 ¥À²ª Ñ ÀÄPÉÌ B ¸ÉÊmï £ÀA§gï 62 GvÀÛgÀPÉÌ B ¸ÉÊmï £ÀA§gï 73 ªÀÄvÀÄÛ 74 zÀQëtPÉÌ B PÁ®ÄªÉ ªÀÄvÀÄÛ 18 CrUÀ¼À gÀ¸ÉÛ "
- 21 - OS.25060/2015
21. In the same Ex.P.48 the item No.7 of the B Schedule, which is fallen to the share of Krishnappa reads thus:
"¨ÉAUÀ¼ÀÆgÀÄ ¥ÀǪÀð vÁ®ÆèPÀÄ PÀȵÀÚgÁd¥ÀÅgÀ ºÉÆç½, ºÁ° §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁå¦ÛUÉ M¼À¥ÀqÀĪÀ ªÀĺÀzÉêÀ¥ÀÅgÀ UÁæªÀÄzÀ ¸ÉÊmï £ÀA§gï 73 ªÀÄvÀÄÛ 74 ¸ÀéwÛ£À £ÀA§gï 58 gÀ°ègÀĪÀ «¹ÛÃtð ¥ÀǪÀð-¥À²ÑªÀÄ B 60 CrUÀ¼ÀÄ ªÀÄvÀÄÛ GvÀÛgÀ - zÀQët B 39.5 CrUÀ¼ÀÄ, MlÄÖ 2370 ZÀzÀgÀ CrUÀ¼À°ègÀĪÀ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀéwÛUÉ ZÉPÀÄ̧A¢B ¥ÀǪÀðPÉÌ B ¸ÉÊmï £ÀA§gï 75 ¥À²ª Ñ ÀÄPÉÌ B ¸ÉÊmï £ÀA§gï 72 GvÀÛgÀPÉÌ B 20 Cr gÀ¸ÉÛ zÀQëtPÉÌ B ¸ÉÊmï £ÀA§gï 63 ªÀÄvÀÄÛ 64 "
22. In the same Ex.P.48 the item No.11 of the B Schedule, which is fallen to the share of Krishnappa reads thus:
"¨ÉAUÀ¼ÀÆgÀÄ ¥ÀǪÀð vÁ®ÆèPÀÄ PÀȵÀÚgÁd¥ÀÅgÀ ºÉÆç½, ºÁ° §ÈºÀvï ¨ÉAUÀ¼ÀÆgÀÄ ªÀĺÁ£ÀUÀgÀ ¥Á°PÉ ªÁå¦ÛUÉ M¼À¥ÀqÀĪÀ ªÀĺÀzÉêÀ¥ÀÅgÀ UÁæªÀÄzÀ ¸ÉÊmï £ÀA§gï 61 ªÀÄvÀÄÛ 62 ¸ÀéwÛ£À £ÀA§gï 58 gÀ°ègÀĪÀ «¹ÛÃtð ¥ÀǪÀð-¥À²ÑªÀÄ GvÀÛgz À À PÀqÉ B 87 CrUÀ¼ÀÄ zÀQëtzÀ PÀqÉ B 72 CrUÀ¼ÀÄ ªÀÄvÀÄÛ GvÀÛgÀ - zÀQët B ¥ÀǪÀðzÀ PÀqÉ 2 CrUÀ¼ÀÄ, ¥À²ª Ñ ÀÄzÀ
- 22 - OS.25060/2015 PÀqÉ 53 CrUÀ¼ÀÄ, MlÄÖ 2186.25 ZÀzÀgÀ CrUÀ¼À°ègÀĪÀ SÁ° ¤ªÉñÀ£ÀzÀ ¸ÀéwÛUÉ ZÉPÀÄ̧A¢B ¥ÀǪÀðPÉÌ B PÁ®ÄªÉ ªÀÄvÀÄÛ ¸ÉÊmï £ÀA§gï 63 ¥À²ª Ñ ÀÄPÉÌ B ¸ÉÊmï £ÀA§gï 60 GvÀÛgÀPÉÌ B PÁ®ÄªÉ ªÀÄvÀÄÛ ¸ÉÊmï £ÀA. 71 ªÀÄvÀÄÛ 72 zÀQëtPÉÌ B 18 CrUÀ¼À gÀ¸ÉÛ "
23. So, from Ex.P.9 it is clear that the defendant No.1 sold site No.64 before the Ex.P.48 - partition deed. Even after the sale of site No. 64 the same is included in Ex.P.48 and it further shows that the same is fallen to the share of Krishnappa. Though the Ex.P.48 discloses that the defendant No.1 got 21 sites under it, but it do not show the boundaries of any site with regard to the selling of site in favour of R.Tony S/o Rayappan under the Ex.P.9 and in it there is no reference with respect to the sale of site in favour of said R.Tony S/o Rayappan. Further, the Ex.P.48 shows that the Site Nos.63 and 64 together totally measuring east to west on the northern side 59 feet and southern side 70 feet and north to south on the eastern side 40 feet and western side 10 feet
- 23 - OS.25060/2015 and there is also northern half of site No.63, which is the item No.8 fallen to the share of defendant No.1. If it is taken that Site Nos.63 and 64 together totally measures 1612.5 sq.ft. is correct, then there cannot be northern half of Site No.63 measuring 600 sq.ft. and if it is taken that the northern half of Site No.63 is correct, then there cannot be Site Nos.63 and 64 totally measuring 1612.5 sq.ft. Further towards the western side of Site Nos.63 and 64 together, the Site No.62 is shown and towards the eastern side of Site Nos.61 and 62 together, canal and Site No.63 is situated. So, at one stretch in between Site Nos.61 and 62 together and Site No.63 canal is shown and at the same time in between them no canal is shown. Further, to the northern half of Site No.63 towards northern side, the Site No.64 is situated, but the Site Nos.63 and 64 together shows that towards the eastern side of Site No.63, the Site No.64 is situated.
24. Secondly, I would like to consider Ex.P.9 again and Ex.P.28. As stated above, the Ex.P.9 is the sale deed
- 24 - OS.25060/2015 executed by the defendant No.1 in favour of R.Tony S/o Rayappan pertaining to Site No.64 bounded by east: property of others, west: Site No.65, north: Site No.63 and south: road. Ex.P.28 - sale deed dated 27.1.2011 discloses that the said R.Tony S/o Rayappan sold Site No.64 in favour of M.Shankar and K.H.Geetha measuring 41 X 29 feet bounded by east:
private property, west : road, north : road and south : Site No.63. So, the boundaries mentioned in Ex.P.9 and P.28 do not tally with each other.
25. Now, I would like to consider the Ex.P.28 again, P.36, P.1 and P.37. As stated above, Ex.P.28 - sale deed dated 27.1.2011 discloses that the said R.Tony S/o Rayappan sold Site No.64 measuring 41 X 29 feet in favour of M.Shankar and K.H.Geetha. Ex.P.36 - rectification deed dated 15.12.2014 discloses that the said R.Tony executed the same in favour of M.Shankar and K.H.Geetha by changing the measurement as 29 X 41 feet. The Ex.P.1 - sale deed dated 15.12.2004 and Ex.P.37 - sale deed dated 15.12.2014
- 25 - OS.25060/2015 discloses that the said M.Shankar and K.H.Geetha sold northern portion and southern portion of Site No.64 in favour of Rathnamma and the plaintiff respectively both are measuring 29 X 20.5 feet. So, the said M.Shankar and K.H.Geetha on 15.12.2014 got the rectification deed as 29 X 41 feet in place of earlier measurement as 41 X 29 feet and on the very same day sold half of the Site No.64 in favour of the said Rathnamma and half of the Site No.64 in favour of the plaintiff. In the rectification sale deed it is only mentioned as measurement is interchanged by typing mistake and mis- described respectively. As stated above, in the principal deed, which is at Ex.P.9 the measurement is 41 X 29 feet and without any measurement of it from the competent authority got changed the measurement as 29 X 41 feet. By changing the measurement of entire Site No.64 the said M.Shankar and K.H.Geetha left 12 feet from east to west available in their site and extending their site from north to south on the adjoining sites. When the said Rathnamma and plaintiff purchased half of the site No.64 each, then also they have left 6 feet each
- 26 - OS.25060/2015 from east to west available in their site and extending their site 6 feet each from north to south on the adjoining sites. So, the plaintiff left 6 feet from east to west, which is available in the suit schedule property, which shows that he is not in possession of the same. Hence, there cannot be the site of the plaintiff measuring east to west : 29 feet.
26. The above fact discloses that in 5 acres of land, the sites to have formed by defendant No.1 and her brothers without any approved layout plan and hence the location of the suit schedule property cannot be ascertained. The sites shown under Ex.P.48 are not of uniform measurement and they are almost of odd measurement. As stated above in Ex.P.48 there are site No. 63 & 64 and also there is northern portion of Site No. 63. The boundaries of the suit schedule property do not tally with the properties of principal document, which is as per Ex.P.9. From the evidence placed on record it is not possible to know that which are correct boundaries of the suit schedule property. So, thereby it is
- 27 - OS.25060/2015 difficult to identify the suit schedule property. The possession includes identification of the suit schedule property. Such being the case, the other documents produced by the plaintiff will not help to his case to prove his possession over the suit schedule property. Hence, it cannot be said that the plaintiff is in possession of suit schedule property, which is said to be measured 29 X 20.5 feet with the boundaries shown.
27. It is the case of the plaintiff that on 16.1.2015 the defendant tried to interfere in the possession and enjoyment of the suit schedule property. When the plaintiff failed to prove his possession over the suit schedule property, then the question of alleged interference by the defendant do not arise for consideration.
28. So, from the discussions made above, I am of the opinion that the plaintiff failed to prove that he is in possession and enjoyment of the suit schedule property as on
- 28 - OS.25060/2015 the date of the suit and then the question of considering alleged interference by the defendant do not arise. Hence, Issue No.1 is answered in the negative and Issue No.2 is answered as does not arise for consideration.
29. ISSUE NO.3:- In view of my findings on Issue Nos.1 and 2 against the plaintiff, the plaintiff is not entitle for the relief of permanent injunction. Hence, Issue No.3 is answered in the negative.
30. ISSUE NO.4:- In the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the judgment writer on computer, thereafter corrected and then pronounced by me in the open court, on this the 11th day of September 2018).
( BASAVARAJ )
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
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ANNEXURE
I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Anjinappa
b) Defendants' side:
D.W.1 V.Chandra
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Original sale deed dated 15.12.2014 Ex.P.2 C/c of EC Ex.P.3 to 6 4 original photographs Ex.P.7 CD of Ex.P.3 to P.6 Ex.P.8 C/c of regd. Gift deed dated 5.8.1961 Ex.P.8(a) Typed copy Ex.P.9 C/c of sale deed dated 19.10.2000 Ex.P.10 Katha endorsement Ex.P.11 & 12 Two possession khatha endorsements Ex.P.13 to 25 13 tax paid receipts
- 30 - OS.25060/2015 Ex.P.26 C/c of building license Ex.P.27 Receipt regarding payment of Engineer's fees Ex.P.28 Original sale deed dated 27.1.2011 Ex.P.29 Katha certificate Ex.P.30 Uttara Patra dated 6.7.2012 Ex.P.31 Assessment of process Ex.P.32 to 35 4 tax paid receipts Ex.P.36 C/c of rectification deed Ex.P.37 C/c of sale deed dated 15.12.2014 Ex.P.38 C/c of assessment of houses and vacant sites Ex.P.39 Katha certificate Ex.P.40 to 44 5 tax paid receipts Ex.P.45 Complaint dated 4.10.2015 Ex.P.46 & 47 C/c of 2 sketches Ex.P.48 Copy of partition deed dated 9.7.2012 Ex.P.49 Copy of sale deed dated 4.9.2014 Ex.P.50 Copy of sale deed dated 25.3.2015
- 31 - OS.25060/2015 Ex.P.51 Copy of encumbrance certificate Ex.P.52 Deposition of witness in OS.1059/2015
b)Defendants' side :
Ex.D.1 C/c of sale deed dated 4.9.2014 Ex.D.2 C/c of cancellation deed Ex.D.3 C/c of Form B Extract ( BASAVARAJ ) Digitally signed XLI ADDL.CITY CIVIL JUDGE by BASAVARAJ DN: BANGALORE cn=BASAVARAJ,o u=GOVERNMEN BASAVARAJ T OF KARNATAKA,o= HIGH COURT OF KARNATAKA,st= Karnataka,c=IN Date: 2018.09.11 16:57:07 IST
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