Bangalore District Court
Sri.B.Narayana Shetty vs Sri.V.P.G.Raghavendra Kumar on 29 January, 2015
In the Court of the XXXVIII Addl. City Civil and
Sessions Judge at Bengaluru City (CCH-39)
Present: Sri B.Muralidhara Pai, B.Com,LL.B.,
XXXVIII Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated 29th day of January 2015
O.S.No.1635/2009
Plaintiff : Sri.B.Narayana Shetty
S/o Byra Shetty
Aged about 58 years
R/at No.538
10th 'A' Block
K.S.R.T.C. Employees Quarters
9th Cross, Wilson Garden
Bangalore-27.
(By Sri.S.L.N.Reddy - Advocate)
-vs-
Defendants : 1. Sri.V.P.G.Raghavendra Kumar
@ V.Om Oberoi
S/o Sri.C.Venkata Rajanish Gowda
Aged about 26 years
2. Smt.V.P.Jagadhamba
D/o C.Venkata Rajanish Gowda
Aged about 30 years
3. Sri.C.Venkata Rajanish Gowda
S/o Late Chinnaswamy Gowda
Aged about 26 years
4. Smt.Venkatalakshmma
W/o C.Venkata Rajanish Gowda
Aged about 56 years
2 O.S.1635/2009
5. Sri.Sathish Kumar
S/o C.Venkata Rajanish Gowda
Aged about 29 years
All are residing at
No.2160, Hamsadwani
8th Cross
Kuvempu Nagar
Ramamurthynagara
Bangalore-16.
(D1 to D5 By Sri.B.N.Devaraju, Advocate)
Date of institution of the suit : 07.03.2009
Nature of the suit : Permanent Injunction
Date of commencement of
recording of evidence : 01.12.2010
Date on which Judgment was
pronounced : 29.01.2015
Total duration : Year/s Month/s Day/s
-05 - -10 - -22-
(B.Muralidhara Pai),
XXXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
3 O.S.1635/2009
Judgment
The plaintiff namely B.Narayanashetty has
maintained this suit for permanent injunction restraining the
defendants, their men or persons claiming under them from
demolishing the compound wall existing towards western
side of the schedule property and towards eastern side of
the defendants' property and from interfering with peaceful
possession and enjoyment over the schedule property.
2. The case of the Plaintiff is as under:
According to the Plaintiff he is the absolute owner in
possession of the schedule property having purchased the
same under a registered sale deed dated 31.08.2007. He
has alleged that on 03.03.2009 at about 10.30 a.m. the
defendants along with their men came near the schedule
property and tried to demolish the compound wall and
thereby tried to interfere with his peaceful possession and
enjoyment over the same. In the said circumstances, the
plaintiff has maintained this suit.
4 O.S.1635/2009
3. After service of suit summons all the defendants
have appeared before the court through their counsel. The
defendant No.3 has filed his written statement and the
defendants No.1 and 2 have adopted the said written
statement. The defendants No.4 and 5 have filed their
common written statement.
4. The defendant No.3 in his written statement has
denied the averments of the plaint and disputed the case of
the plaintiff. On the other hand he stated that he and his
family members are in physical possession and enjoyment
of the property including the schedule property. Hence, he
prayed for dismissal of the suit.
5. The defendants No.4 and 5 in their written
statement have stated that the schedule property
exclusively belongs to defendant No.4 and that she is in
physical possession and enjoyment of the same. They
stated that the defendant No.4 had executed a sale deed in
favour of defendant No.5 only for the purpose of raising loan
5 O.S.1635/2009
with an intention to put up further construction over the
schedule property. As such, they claimed their marketable
title over the schedule property as well as actual possession
and enjoyment over the same. Hence, they prayed for
dismissal of the suit.
6. On the basis of the above pleadings, this Court
has framed the following issues:
1.Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of institution of the suit?
2. Whether the plaintiff proves that the defendants tried to demolish the compound wall existing towards western side of the suit schedule property and towards the eastern side of defendant's property?
3. Whether the plaintiff is entitled for permanent injunction as prayed?
4. What order or decree?
6 O.S.1635/2009
7. In support of his case, the plaintiff has deposed before court as PW1 and got marked documents at Ex.P.1 to P.29. The defendants have not adduced their evidence.
8. Heard the counsel for the plaintiff.
9. The findings of this Court on the above issues are as under:
Issue Nos.1 to 3 : In the affirmative
Issue No.4 : As per final order:
Reasons
10. Issue Nos.1 to 3: The plaintiff has maintained this suit in respect of property bearing site No.21, Old CMC Khatha No.392, New SAS Katha No.1247 measuring East to West: 35 feet and North to South: 40 feet situated at Vijinapura Village, K.R.Puram Hobli, Bangalore East Taluk bounded on east by site No.24 and private property, west by property of V.Sathishkumar i.e. defendant No.5, north by road and south by private property.
7 O.S.1635/2009
11. It is the definite case of the plaintiff that he is in possession and enjoyment of the schedule property as absolute owner thereof having purchased the same under a registered sale deed dated 31.08.2007. He has alleged that on 03.03.2009 at about 10.30 a.m. the defendants made an attempt to demolish the compound wall existing between the schedule property and the property of the defendants and thereby tried to interfere with his peaceful possession and enjoyment over the schedule property.
12. Perusal of the written statements filed by defendants No.3 to 5 make it clear that they have not only denied plaintiff's title and possession over the schedule property but also contended that they are in actual possession and enjoyment of the schedule property. As such, this court requires for this court to consider the materials on record to find out as to who is in physical possession of the schedule property and as to whether the plaintiff has proved alleged interference by the defendants. 8 O.S.1635/2009
13. In support of his case the plaintiff has deposed before the court as PW1 and produced relevant documents before the court. He has produced the original sale deed dated 31.08.2007 at Ex.P.1 to show that he has purchased the schedule property from one M.Kannaiah. The plaintiff has produced a sale deed dated 25.03.2004 at Ex.P.9 to show that his vendor namely M.Kannaiah had purchased the schedule property from V.Sathish Kumar i.e. defendant No.5 herein. The plaintiff has also produced a sale deed dated 06.09.2002 at Ex.P.10 to show that defendant No.5 had purchased the said property from Smt.Chikkamuniyamma represented her GPA holder namely Smt.T.Venkatalakshmamma i.e. defendant No.4. These documents contain recitals as to delivery of possession of the schedule property to the respective purchasers as on the date of execution of sale deeds. Thereby, the above referred documents go to show that the plaintiff is owner of the schedule property having purchased the same under the sale deed dated 31.08.2007. As such, a presumption has to be drawn in favour of the plaintiff as to 9 O.S.1635/2009 he being in actual possession and enjoyment of the schedule property from the date of said sale deed.
14. Perusal of the case papers reveal that during the cross-examination of the plaintiff the defendants have not made any attempt to deny execution of sale deed in his favour or denying his title over the said property. On the other hand, they have tried to contend that even to this day the defendants are in actual possession and enjoyment of the schedule property. As already pointed out though the defendants filed their written statement, they have not chosen to adduce their evidence before the court to substantiate their contention. In the absence of such evidence on the side of the defendants, this court holds that there is no valid reason to believe the above contention of the defendants.
15. The materials on record indicate that the plaintiff has produced several revenue documents pertaining to the schedule property. The contents of these documents 10 O.S.1635/2009 indicate that originally the schedule property stood in the name of defendant No.5 and that the said documents came to be transferred in the name of M.Kannaiah and the plaintiff herein based on the sale deeds executed in their favour. The plaintiff has also produced tax paid receipts to show that he is paying kandayam in respect of the schedule property. Thereby, even the contents of the revenue documents probabalize the plaintiff being in actual possession and enjoyment over the schedule property.
16. The plaintiff has produced some photographs at Ex.P.11 to P.22 pertaining to the compound wall in question. Perusal of the written statements filed by the defendants make it clear that they do not dispute having a property on the western side of the schedule property as contended by the plaintiff. However, they have claimed that even the schedule property belongs to them and they are in possession and enjoyment of the same. The defendants have failed to probabalize the said contention. During his evidence the plaintiff has categorically stated about the 11 O.S.1635/2009 attempt made on the part of the defendants to interfere with the schedule property. Even otherwise, denial of possession of the plaintiff over the schedule property and failure to substantiate such contention amounts to interference by the defendants as well as their interest to interfere with plaintiff's possession and enjoyment over the schedule property. For the forgoing reasons, this court holds that the plaintiff is entitled for the relief of permanent injunction as prayed in the suit. Hence, Issue Nos.1 to 3 are answered in the affirmative.
17. Issue No.4: In the result, this Court proceeds to pass the following:
Order Suit is decreed with cost.
The defendants' their men, servants, or persons claiming under them are hereby restrained by way of permanent injunction from demolishing the compound wall existing in between the schedule property and the 12 O.S.1635/2009 property of the defendants and interfering with peaceful possession and enjoyment of the plaintiff over the schedule property.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open Court on 29th day of January 2015).
(B.Muralidhara Pai), XXXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
Annexure List of witnesses examined on behalf of the Plaintiff :
P.W.1 : B.Narayana Shetty List of documents marked on behalf of the Plaintiff :
Ex. P-1 : Original absolute sale deed
Ex. P-2 : Property tax register extract
Ex. P-3 : Holders Katha Extract
Ex. P-4 : Encumbrance Certificate
Ex. P-5 to 7 : Self assessment tax challan
Ex. P-8 : Khatha Endorsement
13 O.S.1635/2009
Ex. P-9 & 10 : Two original absolute sale deeds
Ex. P-11 to 22 : 12 Photographs
Ex. P-23 : Negatives
Ex. P-24 to 27 : 4 Tax paid receipts
Ex. P-28 & 29 : Two property register extracts
List of witnesses examined on behalf of the Defendants :
Nil List of documents marked on behalf of the Defendants :
Nil XXXVIII Addl. City Civil and Sessions Judge, Bengaluru City.14 O.S.1635/2009