Bangalore District Court
Sai Kumar.K. S/O A.Krishna @ vs Smt.Krishnaveni W/O Late on 16 April, 2019
IN THE COURT OF LX ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
(CCH.NO 61)
Present :
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.8858/2018
Dated this the 16th day of April, 2019
Plaintiff: Sai Kumar.K. S/o A.Krishna @
Krishnappa, Aged about 49
years, Occ:Business, R/at
No.15, 1st Floor, 1st Main, 7th
Cross, 3rd Phase, Manjunatha
-Vs- Nagar, Bengaluru.
[By Sri P.Suresh, Adv.]
Defendant: Smt.Krishnaveni W/o Late
Krishnappa, Aged about 67
years, R/at No.15, 3rd Floor, 1st
Main, 7th Cross, 3rd Phase,
Manjunatha Nagar, Bengaluru.
(Defendant; Exparte)
Date of Institution 10.12.2018
Nature of the suit Injunction Suit.
Date of recording 05-03-2019
of evidence
Date of Judgment 16.4.2019
Total Duration Days Months Years
06 04 00
2 O.S.No.8858/2018
JUDGMENT
The plaintiff has filed this suit against defendant, seeking relief of permanent injunction, restraining the defendant and their family members, or her agent not to interfere with the peaceful possession and enjoyment of the suit schedule property of the plaintiff permanently.
2. Brief facts of plaintiff's case are as follows:
The plaintiff is in physical possession and enjoyment of the plaint schedule property. The plaintiff submits that, the defendant is the mother of the plaintiff. The plaint schedule property is a residential house property consisting of ground floor, 1st floor, 2nd floor and 3rd floor. The defendant was in occupant of 3rd floor and plaintiff was in occupant of 1st floor and remaining 2nd and ground floor occupied by the tenants. The suit schedule property is a vacant site and plaintiff's father was residing in the said place for past more than 10 years. Under the Government scheme BDA has invited 3 O.S.No.8858/2018 the application who are residing in the said locality for their regularization. Accordingly, the defendant has applied for grant of site and the BDA has issued the endorsement in application dt:4.12.1996 and request the BDA has allotted the said site and issued allotment letter. The defendant has not obtained the registered sale deed and obtained only khatha certificate. The plaintiff submits that, after obtaining the khatha certificate, the plaintiff and defendant have amicably settled along with them as per the settlement arrived between them orally, it was decided before his father, the defendant was allowed to construct the entire building with the financial help of plaintiff. Accordingly the building was constructed in the year 2013, the plaintiff has made necessary arrangement to obtain loan form the BBMP authorities as per the Government scheme. Accordingly, the loan was sanctioned in name of defendant and completed the building by investing his own earning. As per the settlement arrived between them, the defendant is 4 O.S.No.8858/2018 permitted the plaintiff to reside in the 1st floor of the said building permanently. In the first floor, the plaintiff has made all the necessary amenities which he required by the investing amount. The plaintiff is in peaceful possession and enjoyment of the suit schedule property, since from the date of construction of the building. The plaintiff further contended that, the last week of November, 2018 the defendant in collusion with other family members, taking undue advantage of death of father of the plaintiff, have unnecessarily quarrel with the plaintiff and demanded to vacate the premises and hand over the premises by saying that the property stands in her name. The defendant has also approached the Basaveshwara Nagara police, by filing complaint against the plaintiff and the police directed to approach the civil court, since the matter is civil in nature. The defendant unnecessary makes harassment to the plaintiff and insists the plaintiff to vacate the without any due process of law. Hence, the plaintiff has resisted the high handed 5 O.S.No.8858/2018 action of the defendant and resisted the same. Hence, plaintiff constrained to file suit for permanent injunction.
3. Suit summon was ordered to be issued to the defendant. Though suit summon was served on defendant but she did not appear. Therefore, defendant placed exparte.
4. Thereafter, matter was posted for enquiry during which plaintiff has led his evidence as Pw.1 and got exhibited as many as 24 documents marked at Ex.P.1 to P.24.
5. Heard arguments.
6. On the material placed before this court, following are the points for my consideration:
1. Whether the Plaintiff is entitled for the relief as sought for?
2. What Order?
7. My findings on the aforesaid points are as under:-
6 O.S.No.8858/2018
Point No.1: In Negative.
Point No.2: As per final order below, for the following:-
REASONS
8. POINT NO. 1 :- Since this suit is for declaration and permanent injunction order with respect of suit schedule property and hence, plaintiff is required to prove his right, title and actual and lawful possession over the suit property as on the date of suit and even he is expected to prove alleged interference by the defendants.
9. To prove or to substantiate his contentions, plaintiff led his evidence, which is accepted in the form of affidavit as contemplated under Order 18 Rule 4 of C.P.C. I have gone through the averments of plaint and version of PW.1. Of course, version of PW.1 is in consonance with averments of plaint. To support his version, he has also filed documents marked at Ex.P.1 to Ex.P.24. Ex.P.1 and Ex.P.2 are the Khatha Certificates, Ex.P.3 is the tax paid 7 O.S.No.8858/2018 receipt, Ex.P.4 is the death certificate, Ex.P.5 is the Gas receipt, Ex.P.6 is the LIC notice, Ex.P.7 is the LIC receipt, Ex.P.8 is the postal receipt, Ex.P.9 is the notice, Ex.P.10 is the voter ID, Ex.P.11 is the DL of plaintiff, Ex.P.12 is the postal receipt, Ex.P.13 is the track consignment, ex.P.14 is the postal receipt, Ex.P.15 is the track consignment, Ex.P.16 is the postal receipt, Ex.17 is the track consignment, Ex.P.18 is the postal receipt, Ex.P.19 to Ex.P.22 are the four photographs, Ex.P.23 is the CD and Ex.P.24 is the family tree.
10. It is pertinent to note that, admittedly the suit schedule property standing in the name of defendant. The plaintiff contended that, as per the amicable settlement the defendant allowed him to reside in the 1st floor of the suit schedule property. The plaintiff has produced the gas booking receipt, voter ID, electricity bill and the photographs. The plaintiff will not get any right, title, interest over the suit property since the plaintiff 8 O.S.No.8858/2018 prays to allow the permanent injunction against the actual owner of the suit schedule property, Admittedly the defendant is also residing in the same building. Hence, plaintiff is not in exclusive possession over the schedule property.
11. Admittedly plaintiff is in possession and enjoyment of schedule property. However, position of law is very clear that as against owner in respect of schedule property, injunction cannot be granted. If the disputed property belongs to owner, then the suit for bear injunction as against one of the owner, is not maintainable. Therefore, I am of the considered view that at any stretch of imagination, plaintiff is not entitled to get an order of permanent injunction, in view of fact that defendant is owner of schedule property. However, when the suit itself is not maintainable, then granting of permanent injunction as well as temporary injunction filed under I.A.No.I would not arise at all. More so, the 9 O.S.No.8858/2018 plaintiff has alternate remedy. As I already observed above, the defendant is the owner of schedule property. Hence, certainly suit for bare injunction is not maintainable.
12. Viewed from any angle, I am of the considered view that, certainly plaintiff is not entitled to get an decree of permanent injunction, since if an order of permanent injunction is passed against the defendant, her right over the schedule property will be infringed and she will be put into greater hardship and inconvenience, assuming that plaintiff is in enjoyment of schedule property.
13. Therefore, taking conspectus of circumstances of the case, this court is of the opinion that though plaintiff has failed to substantiate that he had legal right in the suit property. In that view of the matter, court has come to the conclusion that plaintiff is not entitled for 10 O.S.No.8858/2018 any of the reliefs as sought for. Accordingly, I answer this point No.1 in 'Negative'.
14. POINT NO. 2: In view of my findings on above point No.1 suit is liable to be dismissed. Under peculiar circumstances of the case, there shall be no order as to costs. With this observation and being of that opinion, I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby dismissed. No order as to costs.
Draw decree, accordingly.
*** (Directly dictated to the Stenographer on computer, corrected and then pronounced by me in open court on this the 16th day of April, 2019).
(Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru 11 O.S.No.8858/2018 ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFFS:
Pw.1 Saikumar.K WITNESSES EXAMINED FOR THE DEFENDANT:
-NIL-
DOCUMENTS MARKED FOR THE PLAINTIFFS:
Ex.P.1 : Khatha Certificate. Ex.P.2 : Khatha Extract Ex.P.3 : Tax paid receipt. Ex.P.4 : Death Certificate of A. Krishnappa. Ex.P.5 : Gas receipt. Ex.P.6 : LIC notice. Ex.P.7 : LIC receipt. Ex.P.8 : Postal receipt. Ex.P.9 : Notice dt. 08.12.2018.
Ex.P.10 : Voter Id Card of plaintiff. Ex.P.11 : DL of plaintiff. Ex.P.12 : Postal receipt. Ex.P.13 : Track consignment. Ex.P.14 : Postal receipt. Ex.P.15 : Track consignment. Ex.P.16 : Postal receipt. Ex.P.17 : Track consignment. Ex.P.18 : Postal receipt. Ex.P.19 : Four photos. to 22 Ex.P.23 : CD.
Ex.P.24 : Family tree affidavit.12 O.S.No.8858/2018
DOCUMENTS MARKED FOR THE DEFENDANT:
- NIL -
(Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru.13 O.S.No.8858/2018
Judgment pronounced in the open court. Vide separately ORDER Suit of the plaintiff is hereby dismissed.
No order as to costs.
Office to draw decree accordingly.
(Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru 14 O.S.No.8858/2018