Bangalore District Court
Smt.M.Begum vs Smt.R.Saraswathi on 8 September, 2017
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri.G.A.Mulimani, M.A., LL.B. (Spl.)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 8th day of September, 2017
O.S.No.6665/2010
Plaintiff/s : Smt.M.Begum,
aged about 40 years,
w/o. Moula Baig, r/o No.6,
11th 'A' cross, Parsi Garden,
Swimming Pool Extension,
Malleshwaram, Bengaluru-3.
(By Sri.C.K.S. Advocate)
- Vs -
Defendant/s : 1. Smt.R.Saraswathi,
aged about 43 years,
w/o. T.Venkataramu,
r/o. 6/1, 11th 'A' Cross,
Parsi Garden,
Swimming Pool Extension,
Malleshwaram, Bengaluru-3.
2. T.Venkaramu,
aged about 48 years,
s/o. Thammaiah, r/o. 6/1,
11th 'A' Cross, Parsi Garden,
Swimming Pool Extension,
Malleshwaram, Bengaluru-3.
[By Sri.V.A. Advocate]
2 O.S.No.6665/2010
Date of institution
of the suit : 21.09.2010
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Permanent Injunction
Date of the commencement
of recording of the evidence: 29.08.2016
Date on which the
Judgment was pronounced : 08.09.2017
Year/s Month/s Day/s
Total Duration -06- -11- -17-
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of permanent injunction and other reliefs which Court deems fit be granted in the interest of justice and equity.
2. The brief facts of the plaintiff's case are that :
The plaintiff entered into an agreement of sale dated 26.10.1998 with one Venkatesh son of Subramanyam, under the said agreement of sale dated 26.10.1998, the plaintiff agreed to purchase the suit property, for sale consideration of Rs.3,25,000/- and he has paid the entire sale consideration amount to her vendor Venkatesh on the same day. The suit schedule property is consisting of 3 3 O.S.No.6665/2010 residential units, in one of the residential units the plaintiff is residing along with her sister, her husband and their children in all numbering about 8 people, the said residential unit measures 2 squares which is situated towards the western side of the suit schedule property. The plaintiff has been in possession and enjoyment of the tenant stated above. Under the agreement of sale dated 26.10.1998 the vendor of plaintiff has symbolically delivered the possession of the entire suit schedule property. The vendor of the plaintiff Venkatesh has succeeded to the estate of the father Subramanyam who is the owner of the suit schedule property. The father of Venkatesh, K.G.Subramanya had purchased the northern side of the said property bearing No.6, Vyalikaval Extension, Parsi Garden, Bengaluru the suit schedule property from Bibijan and Hussain Sabjan under a registered sale deed dated 06.11.1969 through registered No.3085/1969-70 in Book I, Vol.No.228, in the Office of the Sub-Registrar, Gandhinagar, Bengaluru.
Further submit that Bibijan has purchased the entire property No.6, Parsi Garden, Vyalikaval, Bengaluru measuring 54 x 30 feet under the registered sale deed dated 13.04.1969 which is registered as document 4 O.S.No.6665/2010 No.138/1969-70 in the office of the Sub-Registrar, Gandhinagar, Bengaluru from Varadaraja Mudaliar. The said Bibijan has sold the southern side portion of the property bearing No.6, Parsi Garden, Vyalikaval Extension, Bengaluru in favour of Eswara Rao under the sale deed dated 14.04.1969 which is registered as document No.204/1968-69 in the office of the Sub-Registrar, Gandhinagar, Bengaluru. The above narration clearly establish that Bibijan had lost her title in respect of the property bearing No.6, Parsi Garden, Vyalikaval, Malleshwaram, Bengaluru in the year 1969 itself. The plaintiff was born and brought up in the house in which she is residing and the plaintiff has love and affection towards the suit schedule property. Hence, she has decided to purchase the suit schedule property and plaintiff had entered into an agreement of sale dated 26.10.1998. However, the plaintiff was unable to obtain the registered sale deed from her vendor Venkatesh as the said Venkatesh started to demand more money from the plaintiff.
Further submit that earlier a suit in O.S.No.5465/2002 was filed by Venkatesh and Venkatesh represented by the plaintiff for a decree for permanent injunction against the 2nd defendant, Bibijan and Mothi Begum in respect of the 5 O.S.No.6665/2010 suit schedule property, as the said Venkatesh has executed a General power of attorney and an affidavit on 26.10.1998 in favour of the plaintiff and he received the entire sale consideration on amount and Venkatesh was supporting the case. However, Venkatesh turned around the plaintiff and started to deny the documents executed in favour of the plaintiff. In the said case the Court was pleased to dismiss the suit with liberty to the plaintiff to file a fresh suit against the 2nd defendant. As the vendor of the plaintiff denied the documents in favour of the plaintiff, the plaintiff was constrained to file a suit in O.S.No.8836/2004 on the file of the City Civil Court, Bengaluru for a decree for specific performance of the agreement of sale deed dated 26.10.1998, which is pending adjudication.
Further submitted that towards the eastern side of the property in which the plaintiff is residing, there is a two squares tenement, behind the said tenement there is 3 squares residential unit towards the eastern side of the suit schedule property in which the defendants are residing. In the tenement which is situated adjacent to the plaintiff tenement the defendants have stored unused articles. On 10.09.2010 the defendants with high handedly demolished the southern side of the wall of the said tenement which is 6 O.S.No.6665/2010 described in the schedule 'A' property. The plaintiff questioned the high handed action, and right, title and interest and lodged a police complaint in Vyalikaval Police Station, Bengaluru who have registered a criminal Misc. against the workers of the defendants and 2nd defendant, the plaintiff represented the Revenue Authorities not to sanction any plan to the defendants in respect of the suit schedule property as the defendants are claiming the right, title and interest on the basis of bogus document. The defendants have claimed the title of suit schedule property through sale deed from Mothi Megum, who in turn claims title to the suit schedule property by virtue of the gift deed executed by Bibijan. Bibijan had no right, title and interest to gift the suit schedule property in favour of Mothi Begum. Hence, defendants not derive any right, title and interest over the suit schedule property from Mothi Begum.
In fact, it would not be out of place to mention herein that the plaintiff had initiated proceedings under section 114A of the Municipal Corporation Act against the 1st defendant challenging the transfer of khatha in respect of the suit schedule property in the name of the 1st defendant till the legal heirs of Subramanyam approach BBMP for change of khatha. The defendants are high handedly 7 O.S.No.6665/2010 medling with the suit schedule property. The complaints of the plaintiff to the jurisdictional police has yielded no result. On the other hand, the 1st defendant high handedly has filed a Caveat Petition on 16.09.2010 against the plaintiff making baseless allegations. On 20.09.2010, the defendants have got dumped a lorry load of sand and a tractor load of jelly stones in front of the suit schedule property in order to put up construction over the suit schedule 'A' property at about 5 p.m. The plaintiff rushed to the jurisdictional police station informing the high handed arbitrary action of the defendants in proceeding with the construction activities over the suit schedule 'A' property. The plaintiff authority expressed their helplessness as the matter is in civil in nature and advised to approach civil Court. The plaintiff has paid the entire sale consideration amount to her vendor in respect of the suit schedule property. The plaintiff is in symbolic possession of the entire suit schedule property. The defendants have no manner of right, title and interest over the suit schedule property. Hence, has filed the suit.
3. In pursuance of the suit summons, the defendants No.1 and 2 have appeared through their counsel and filed detailed written statement denying all the allegations 8 O.S.No.6665/2010 leveled against them as false interalia contending that the suit is bad for non-joinder of the parties. As the plaintiff has made Venkatesh as parties to the suit. Hence, the suit is for mis-joinder. It is true that the suit schedule property consists of three residential units and further it is true that one Bibijan had purchased the property No.6, measuring 54 x 30 feets under the registered sale deed dated 14.04.1969 and the southern portion of the said land has been sold to one Eshwara Rao. The defendants sincerely appreciates the honesty of the plaintiff who voluntarily disclosed about the suit in O.S.No.5465/2002 which came to be filed before this Court and ultimately came to be dismissed on merits. The defendants are not aware of the pendency of the suit in O.S.No.8836/2004 on the file of this Court. The defendants are not binding on the outcome of the said suit if really the suit is pending and disposed off.
Further have submitted that the defendants are husband and wife and own the schedule property, as submitted in the plaint, one Bibijan wife of late Kasim Sab purchased the entire property in No.6 of Jabbar Block, Parsi Garden, Vyalikaval, Bengaluru, by the gift deed dated 16.03.2002. The said Bibijan gifted the schedule property in favour of Mothi Begum @ Mohsina the daughter of the 9 O.S.No.6665/2010 sister of Bibijan. The gift has been accepted and acted upon and the title, interest and right in respect of the schedule property has been transferred to Mothi Begum @ Mohsina. In turn the said Mothi Begum @ Mohsina entered agreement of sale in favour of the 1st defendant and by the registered sale deed dated 26.03.2003 sold the schedule property in favour of the 1st defendant. After the sale deed, the 1st defendant is put in possession of the schedule property and the khatha has been changed to her name. The encumbrance shows the name of the 1st defendant and the transaction. The 1st defendant regularly paid the municipal tax and he is in possession of the schedule property and the derived right, title and interest in respect of the schedule property. Since the buildings situated in the suit schedule property are in dilapidated condition, the 1st defendant obtained sanction for demolition of the existing building and reconstruction of a new building by spending huge money. Though, plaintiffs have no right, title or interest over the suit schedule property, making all efforts to prevent the 1st defendant from exercising her right in respect of the schedule property. The plaintiff is not at all in possession of the property.
10 O.S.No.6665/2010Further the plaintiff claiming to be General power of attorney of K.S.Venkatesh filed in O.S.No.5465/2002 before this Court, on contest, the suit came to be dismissed with positive findings that the plaintiff K.S.Venkatesh was not at all in lawful possession in respect of the schedule property. This Court further held that even the power of attorney holder, the present plaintiff was also not lawful possession in respect of the schedule property. This Court in the said suit gave positive finding that the sale deed said to have executed in favour of K.S.Venkatesh dated 06.11.1969 cannot be believed and has not acted upon. The suit came to be dismissed on merits by answering all the issues raised therein. The 2nd defendant is the party/3rd defendant in the said suit. The judgment and decree and finding recorded in O.S.No.5465/2002 became final.
The present suit filed by the plaintiff is on the same line of pleadings and the issues that will come for consideration are one and the same. The finding recorded in O.S.No.5465/2002 will operate as res-judicata. The plaintiff has not made out prima-facie case for grant of injunction, if at all the plaintiff has any grievance, the same to be agitated as against Venkatesh. Even according to the plaintiff, agreement relates to 1998. hence, all probabilities 11 O.S.No.6665/2010 the suit is barred by law of limitation. By mere the agreement for sale, the plaintiff cannot claim any right, title or interest as against these defendants who acquired the right, title and interest from the real owner. If the injunction is granted, the defendants will be put to great hardship is more on the defendants rather than the plaintiff. The plaintiff claims that the symbolic possession has been handed over vide the agreement of sale. Admittedly, the said agreement is not registered. As per the rule, if the possession is handed over through an agreement, the same requires to be compulsorily registerable, failing which the same cannot be admitted in evidence. Hence, he prayed to dismiss the suit.
4. On the basis of the above materials, pleadings and documents, my predecessor-in-office has framed the following issues :
1. Does the plaintiff prove to be in symbolic possession of the suit schedule property?
2. Does the plaintiff further prove the alleged interference by the defendant in the suit schedule property?
3. If so, does the plaintiff prove to be entitled for the relief of permanent injunction as sought for?12 O.S.No.6665/2010
4. Do the defendants prove that first defendant to be in lawful possession of suit property?
5. Whether the suit is hit by the principle of res-
judicata?
6. What order or decree?
5. In order to prove the case of the plaintiff, the plaintiff has been examined as P.W.1 and got marked Ex.P-1 to Ex.P-16 and closed her side. On the other hand, defendant No.2 has been examined as D.W.1 and got marked Ex.D-1 to Ex.D-22 and closed his side.
6. Heard the arguments on both the side.
7. Learned counsel for the plaintiff has filed written arguments.
8. The findings on the above issues are as follows :
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : As per final order
13 O.S.No.6665/2010
REASONS
9. ISSUE No.1, 2 AND 4 : These issues are interlinked together, hence, to avoid repetition of the same facts, I have discussed both the issues simultaneously for my common consideration.
It is the specific case of the plaintiff are that, the plaintiff entered into an agreement of sale dated 26.10.1998 with one Venkatesh son of Subramanyam, under the said agreement of sale dated 26.10.1998, the plaintiff agreed to purchase the suit property, for sale consideration of Rs.3,25,000/- and he has paid the entire sale consideration amount to her vendor Venkatesh on the same day. The suit schedule property is consisting of 3 residential units, in one of the residential units the plaintiff is residing along with her sister, her husband and their children in all numbering about 8 people, the said residential unit measures 2 squares which is situated towards the western side of the suit schedule property. The plaintiff has been in possession and enjoyment of the tenant stated above. Under the agreement of sale dated 26.10.1998 the vendor of plaintiff has symbolically delivered the possession of the entire suit schedule property. The vendor of the plaintiff Venkatesh has 14 O.S.No.6665/2010 succeeded to the estate of the father Subramanyam who is the owner of the suit schedule property. The father of Venkatesh, K.G.Subramanya had purchased the northern side of the said property bearing No.6, Vyalikaval Extension, Parsi Garden, Bengaluru the suit schedule property from Bibijan and Hussain Sabjan under a registered sale deed dated 06.11.1969 through registered No.3085/1969-70 in Book I, Vol.No.228, in the Office of the Sub-Registrar, Gandhinagar, Bengaluru.
Further stated that Bibijan has purchased the entire property No.6, Parsi Garden, Vyalikaval, Bengaluru measuring 54 x 30 feet under the registered sale deed dated 13.04.1969 which is registered as document No.138/1969-70 in the office of the Sub-Registrar, Gandhinagar, Bengaluru from Varadaraja Mudaliar. The said Bibijan has sold the southern side portion of the property bearing No.6, Parsi Garden, Vyalikaval Extension, Bengaluru in favour of Eswara Rao under the sale deed dated 14.04.1969 which is registered as document No.204/1968-69 in the office of the Sub-Registrar, Gandhinagar, Bengaluru. The above narration clearly establish that Bibijan had lost her title in respect of the property bearing No.6, Parsi Garden, Vyalikaval, 15 O.S.No.6665/2010 Malleshwaram, Bengaluru in the year 1969 itself. The plaintiff was born and brought up in the house in which she is residing and the plaintiff has love and affection towards the suit schedule property. Hence, she has decided to purchase the suit schedule property and plaintiff had entered into an agreement of sale dated 26.10.1998. However, the plaintiff was unable to obtain the registered sale deed from her vendor Venkatesh as the said Venkatesh started to demand more money from the plaintiff.
Further stated that earlier a suit in O.S.No.5465/2002 was filed by Venkatesh and Venkatesh represented by the plaintiff for a decree for permanent injunction against the 2nd defendant, Bibijan and Mothi Begum in respect of the suit schedule property, as the said Venkatesh has executed a General power of attorney and an affidavit on 26.10.1998 in favour of the plaintiff and he received the entire sale consideration on amount and Venkatesh was supporting the case. However, Venkatesh turned around the plaintiff and started to deny the documents executed in favour of the plaintiff. In the said case the Court was pleased to dismiss the suit with liberty to the plaintiff to file a fresh suit against the 2nd defendant. As the vendor of the plaintiff denied the documents in favour of the plaintiff, the plaintiff was 16 O.S.No.6665/2010 constrained to file a suit in O.S.No.8836/2004 on the file of the City Civil Court, Bengaluru for a decree for specific performance of the agreement of sale deed dated 26.10.1998, which is pending adjudication.
Further stated that towards the eastern side of the property in which the plaintiff is residing, there is a two squares tenement, behind the said tenement there is 3 squares residential unit towards the eastern side of the suit schedule property in which the defendants are residing. In the tenement which is situated adjacent to the plaintiff tenement the defendants have stored unused articles. On 10.09.2010 the defendants with high handedly demolished the southern side of the wall of the said tenement which is described in the schedule 'A' property. The plaintiff questioned the high handed action, and right, title and interest and lodged a police complaint in Vyalikaval Police Station, Bengaluru who have registered a criminal Misc. against the workers of the defendants and 2nd defendant, the plaintiff represented the Revenue Authorities not to sanction any plan to the defendants in respect of the suit schedule property as the defendants are claiming the right, title and interest on the basis of bogus document. The defendants have claimed the title of suit schedule property 17 O.S.No.6665/2010 through sale deed from Mothi Megum, who in turn claims title to the suit schedule property by virtue of the gift deed executed by Bibijan. Bibijan had no right, title and interest to gift the suit schedule property in favour of Mothi Begum. Hence, defendants not derive any right, title and interest over the suit schedule property from Mothi Begum.
In fact, it would not be out of place to mention herein that the plaintiff had initiated proceedings under section 114A of the Municipal Corporation Act against the 1st defendant challenging the transfer of khatha in respect of the suit schedule property in the name of the 1st defendant till the legal heirs of Subramanyam approach BBMP for change of khatha. The defendants are high handedly medling with the suit schedule property. The complaints of the plaintiff to the jurisdictional police has yielded no result. On the other hand, the 1st defendant high handedly has filed a Caveat Petition on 16.09.2010 against the plaintiff making baseless allegations. On 20.09.2010, the defendants have got dumped a lorry load of sand and a tractor load of jelly stones in front of the suit schedule property in order to put up construction over the suit schedule 'A' property at about 5 p.m. The plaintiff rushed to the jurisdictional police station informing the high handed 18 O.S.No.6665/2010 arbitrary action of the defendants in proceeding with the construction activities over the suit schedule 'A' property. The plaintiff authority expressed their helplessness as the matter is in civil in nature and advised to approach civil Court. The plaintiff has paid the entire sale consideration amount to her vendor in respect of the suit schedule property. The plaintiff is in symbolic possession of the entire suit schedule property. The defendants have no manner of right, title and interest over the suit schedule property.
10. It is the specific case of the defendant are that as the plaintiff has made Venkatesh as parties to the suit. Hence, the suit is for mis-joinder. It is true that the suit schedule property consists of three residential units and further it is true that one Bibijan had purchased the property No.6, measuring 54 x 30 feets under the registered sale deed dated 14.04.1969 and the southern portion of the said land has been sold to one Eshwara Rao. The defendants sincerely appreciates the honesty of the plaintiff who voluntarily disclosed about the suit in O.S.No.5465/2002 which came to be filed before this Court and ultimately came to be dismissed on merits. The defendants are not aware of the pendency of the suit in O.S.No.8836/2004 on 19 O.S.No.6665/2010 the file of this Court. The defendants are not binding on the outcome of the said suit if really the suit is pending and disposed off.
Further stated that the defendants are husband and wife and own the schedule property, as submitted in the plaint, one Bibijan wife of late Kasim Sab purchased the entire property in No.6 of Jabbar Block, Parsi Garden, Vyalikaval, Bengaluru, by the gift deed dated 16.03.2002. The said Bibijan gifted the schedule property in favour of Mothi Begum @ Mohsina the daughter of the sister of Bibijan. The gift has been accepted and acted upon and the title, interest and right in respect of the schedule property has been transferred to Mothi Begum @ Mohsina. In turn the said Mothi Begum @ Mohsina entered agreement of sale in favour of the 1st defendant and by the registered sale deed dated 26.03.2003 sold the schedule property in favour of the 1st defendant. After the sale deed, the 1st defendant is put in possession of the schedule property and the khatha has been changed to her name. The encumbrance shows the name of the 1st defendant and the transaction. The 1st defendant regularly paid the municipal tax and he is in possession of the schedule property and the derived right, title and interest in respect of the schedule property.
20 O.S.No.6665/2010Since the buildings situated in the suit schedule property are in dilapidated condition, the 1st defendant obtained sanction for demolition of the existing building and reconstruction of a new building by spending huge money. Though, plaintiffs have no right, title or interest over the suit schedule property, making all efforts to prevent the 1st defendant from exercising her right in respect of the schedule property. The plaintiff is not at all in possession of the property.
Further stated that the plaintiff claiming to be General power of attorney of K.S.Venkatesh filed in O.S.No.5465/2002 before this Court, on contest, the suit came to be dismissed with positive findings that the plaintiff K.S.Venkatesh was not at all in lawful possession in respect of the schedule property. This Court further held that even the power of attorney holder, the present plaintiff was also not lawful possession in respect of the schedule property. This Court in the said suit gave positive finding that the sale deed said to have executed in favour of K.S.Venkatesh dated 06.11.1969 cannot be believed and has not acted upon. The suit came to be dismissed on merits by answering all the issues raised therein. The 2nd defendant is the party/3rd defendant in the said suit. The judgment 21 O.S.No.6665/2010 and decree and finding recorded in O.S.No.5465/2002 became final.
The present suit filed by the plaintiff is on the same line of pleadings and the issues that will come for consideration are one and the same. The finding recorded in O.S.No.5465/2002 will operate as res-judicata. The plaintiff has not made out prima-facie case for grant of injunction, if at all the plaintiff has any grievance, the same to be agitated as against Venkatesh. Even according to the plaintiff, agreement relates to 1998. hence, all probabilities the suit is barred by law of limitation. By mere the agreement for sale, the plaintiff cannot claim any right, title or interest as against these defendants who acquired the right, title and interest from the real owner. If the injunction is granted, the defendants will be put to great hardship is more on the defendants rather than the plaintiff. The plaintiff claims that the symbolic possession has been handed over vide the agreement of sale. Admittedly, the said agreement is not registered. As per the rule, if the possession is handed over through an agreement, the same requires to be compulsorily registerable, failing which the same cannot be admitted in evidence.
22 O.S.No.6665/201011. In order to prove the issues, the plaintiff has filed his sworn affidavit in lieu of the chief-examination, wherein she has reiterated the same contents which she has narrated in her plaint, hence, in order to avoid repetition of the same, I have not discussed once again. In support of her chief examination she has produced 16 documents as Ex.P-1 to Ex.P-16 for the sake of convenience I have summarized these documents as Ex.P-1 is the certified copy of sale deed dated 14.04.1969, Ex.P-2 is the certified copy of sale deed dated 14.11.1969, Ex.P-3 is the certified copy of sale deed dated 06.11.1969, Ex.P-4 is the certified copy of the General power of attorney dated 26.10.1998, Ex.P-5 is the certified copy of the affidavit of the vendor, Ex.P-6 is the certified copy of the ration card, Ex.P-7 is the certified copy of the passport, Ex.P-8 is the office copy of the complaint dated 10.09.2010, Ex.P-9 is the acknowledgment issued by the police, Ex.P-10 to Ex.P-16 are photographs.
12. On the other hand, the defendant No.2 has filed his sworn affidavit in lieu of the chief-examination, wherein he has reiterated the same contents which he has narrated in his written statement, hence, in order to avoid repetition of the same, I have not discussed once again. In support of his chief examination he has produced 22 documents as 23 O.S.No.6665/2010 Ex.D-1 to Ex.D-22 for the sake of convenience I have summarized these documents as Ex.D-1 is the certified copy of sale deed dated 27.03.2003, Ex.D-2 is the certified copy of khatha extract, Ex.D-3 is the certified copy of the khatha certificate, Ex.D-4 is the certified copy of the tax paid receipts, Ex.D-5 is the certified copy of the khatha extract, Ex.D-6 is the certified copy of the khatha certificate, Ex.D-7 is the certified copy of the tax paid receipt, Ex.D-8 to Ex.D-10 are the certified copy of the encumbrance certificates, Ex.D-11 to Ex.D-14 are the certified copy of the plaint, written statement, judgment and decree in O.S.No.5465/2002, Ex.D-15 and ex.D-16 are the certified copy of the plaint and order sheet in O.S.No.5858/2015, Ex.D-17 to Ex.D-20 are the electricity and water bills and receipts and Ex.D-21 and Ex.D-22 are the water bills.
13. During the cross examination of P.W.1, she has stated that it is true that she was filed a suit bearing O.S.No.5465/2002 against Bibijan and Mothi Begum, the said suit was dismissed, and she had deposed in the said suit. It is true that defendant No.1 was filed a suit for eviction against her in a suit bearing O.S.No.5858/2015. She do not know the written statement filed in that suit 24 O.S.No.6665/2010 bearing O.S.No.5465/2002. The present defendants have not made as a party to that suit and she has not produced the khatha of Venkatesh in the above case. At the time of General power of attorney i.e., Ex.P-4 khatha was not in the name of Venkatesh. Venkatesh has not executed the sale deed in the year 1998. There is no tax paid receipt in the name of Venkatesh. The suit house number is shown as 6 which is bounded towards East by Halla, towards West by her house is situated, North by house of Eshwara Rao and South by Burial ground. She has not produced khatha of the said property and she has not paid the tax in respect of the said property. She do not know the suit schedule property was registered in the name of 1st defendant on 27.03.2003. She do not know she was resided in which extent of the area, but it is 54 x 50 feet. It is false to suggest hat Saraswathi and her family members are residing in the suit property. Venkatesh who has executed agreement of sale in her favour by 2 years back. It is true that O.S.No.5858/2015 was filed against her for eviction as she was residing in the suit property as unauthorised occupant. She do not know the said house No.6/1 which stands in the name of Saraswathi as on today. She do not know water and electrical connection stands in whose name. It is false to suggest that as on the date of filing of 25 O.S.No.6665/2010 the suit, defendant No.1 was the owner of the suit property. It is false to suggest to suggest that she has encroached the suit schedule property to the extent of 10 x 12 feet and residing as unauthorised occupant. It is false to suggest that she has no right to remain in possession of the suit property. She do not know the defendants are also residing in the remaining suit property.
14. During the cross examination of D.W.1 he has stated that it is true to suggest that he has stated in his chief affidavit that plaintiff has trespassed in the suit schedule property on 09.08.2002, for that he has not lodged any police complaint. The suit bearing O.S.No.5858/2015 for ejectment from 2002 till 2015 he has not filed any suit to evict the plaintiff from the suit property. It is true that suit bearing O.S.No.5465/2002 was filed by Venkatesh through his power of attorney holder M.Begum who is the plaintiff in this case. It is true to suggest that the plaintiff trespassed the suit schedule property in 2002 which is situated road side. It is true to suggest that the middle house is in dilapidated condition and she is residing in the last house. Witness voluntarily stated that he resides in the entire house, it is true to suggest that he has attempted to get repair the middle house.
26 O.S.No.6665/201015. On careful scrutiny of the cross examination of P.W.1 and D.W.1. P.W.1 stated that she is in possession of the suit schedule property and D.W.1 has also categorically stated that the plaintiff is in possession of the suit schedule property as a trespasser. On the basis of the above evidence, it clearly goes to show that the plaintiff is in possession of the suit schedule property. Whether the possession of the plaintiff is illegal or trespassed etc. is not necessary to decide in this suit, because this suit is only injunction based on possession. As admitted by the defendant D.W.1, the possession of the plaintiff over the suit schedule property is trespassed since from 2002. when D.W.1 is admitted the possession of the suit schedule property of the plaintiff either trespassed or whatever it may be, then it is the duty of the Court to protect the possession of the plaintiff. In this juncture, I have relied ruling reported in AIR 1989 Supreme Court page 2097 in Krishna Ram Mahale (dead) by his LRs - Vs - Mrs.Shobha Venkat Rao. Wherein it has been held by the Hon'ble Supreme Court that :
"(A) Civil P.C. (1908), O.20, R.9 -
Unlawful dispossession of licensee by
licensor before expiry of license period -
Decree for recovery of possession -
27 O.S.No.6665/2010Licensee is entitled to, notwithstanding that period of licence had expired long back during pendency of legal proceedings."
Further it is held that :
"It is a well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law."
16. I have carefully gone though supra decisions, as admitted by D.W.1 during his cross examination that the plaintiff is in possession of the suit schedule property, as a trespasser. The principles involved in the supra decision, that even stranger can maintain the suit for bare injunction and his possession is to be protected and the possession of the plaintiff is to be evicted by due process of law. Therefore, when the possession of the plaintiff over the suit schedule property is proved by the plaintiff, then there is no question of the possession of the defendant in the very property does not arise at all. Since the defendant has contended that he is in possession of the suit schedule 28 O.S.No.6665/2010 property, in his cross examination he has admitted that the plaintiff is in possession of the suit schedule property unauthorisedly which amounts to interference by the defendant in respect of the possession of the plaintiffs over the suit schedule property. Under these circumstances and foregoing reasons, I am of the opinion that the plaintiff has proved that she is in possession of the suit schedule property and the defendants failed to prove that they are in possession of the suit schedule property and the plaintiff has also proved the alleged interference by the defendants. Hence, issue No.1 and 2 are answered in the AFFIRMATIVE and issue No.4 is answered in the NEGATIVE.
17. ISSUE No.5 : It is the specific case of the defendant that the plaintiff claiming to be the General power of attorney holder of K.S.Venkatesh filed O.S.No.5465/2002 before this Court. On contest the suit came to be dismissed that the plaintiff K.S.Venkatesh was not at all in lawful possession in respect of the schedule property. Even the power of attorney holder present plaintiff was also not in lawful possession in respect of the schedule property. This Court in the said suit gave positive finding that the sale deed said to have executed in favour of K.S.Venkatesh dated 06.11.1969 cannot be believed and has not acted 29 O.S.No.6665/2010 upon. The suit came to be dismissed on merit by answering all the issue raised therein, the 2nd defendant is the 3rd defendant in that suit and the suit judgment and decree become final present suit filed by the plaintiff is on the same line pleadings and the issues that will come for consideration are one and the same. Therefore, this suit is dismissed as it is hit by principles of res-judicata.
18. Learned counsel for the defendant has produced certified copy of judgment passed in O.S.No.5465/2002 which is marked at Ex.D-13. On perusal of the said judgment, the plaintiff of this case is not party in O.S.No.5465/2002 but she represent as power of attorney to the plaintiff. Therefore, whatever the subject matter of the suit involved in that case is not pertains to this plaintiff as she represent only General power of attorney to the plaintiff. Therefore, whatever the subject matter of the suit involved in that case is not pertains to this plaintiff as she represent only General power of attorney. The adjudication of the matter in O.S.No.5465/2002 is between Venkatesh and others not for this plaintiff. It is none other than that this plaintiff is not party to the proceedings in O.S.No.5465/2002. Therefore, the contention taken by the learned counsel for the defendant that suit is hit under 30 O.S.No.6665/2010 section 11 of the C.P.C. Hence, issue No.5 is answered in the NEGATIVE.
19. ISSUE No.3 : Since issue No.1 and 2 are answered in the Affirmative and issue No.4 is answered in the Negative, as discussed in supra reasons and once the plaintiff has proved issue No.1 and 2 naturally she is entitled for the relief. Hence, I answer issue No.3 in the AFFIRMATIVE.
20. ISSUE No.6 : In the result, I proceed to pass the following :
ORDER The suit of the Plaintiff is hereby decreed with costs.
Restraining the defendants, their agents, servants etc., not to evict the plaintiffs without due process of law.
Draw the decree accordingly.
[Dictated to the Judgment Writer, the transcript thereof is corrected and then pronounced by me in Open Court, this the 8th day of September, 2017) (G.A.MULIMANI) XIV Addl. City Civil Judge Bangalore.31 O.S.No.6665/2010
ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W. 1 M.Begum List of documents exhibited on behalf of plaintiff :
Ex.P-1 Certified copy of sale deed dated 14.04.1969 Ex.P-2 Certified copy of sale deed dated 14.11.1969 Ex.P-3 Certified copy of sale deed dated 06.11.1969 Ex.P-4 Certified copy of the General power of attorney dated 26.10.1998 Ex.P-5 Certified copy of the affidavit of the vendor Ex.P-6 Certified copy of the ration card Ex.P-7 Certified copy of the passport Ex.P-8 Office copy of the complaint dated 10.09.2010 Ex.P-9 Acknowledgment Ex.P-10 to Ex.P-16 Photographs List of witnesses examined on behalf of defendant :
D.W.1 T.Venkatarama List of documents exhibited on behalf of defendant :
Ex.D-1 Certified copy of sale deed dated 27.03.2003
Ex.D-2 Certified copy of khatha extract
32 O.S.No.6665/2010
Ex.D-3 Certified copy of the khatha certificate
Ex.D-4 Certified copy of the tax paid receipts
Ex.D-5 Certified copy of the khatha extract
Ex.D-6 Certified copy of the khatha certificate
Ex.D-7 Certified copy of the tax paid receipt
Ex.D-8 to
Ex.D-10 Certified copy of the encumbrance certificates
Ex.D-11 to
Ex.D-14 Certified copy of the plaint, written statement,
judgment and decree in O.S.No.5465/2002
Ex.D-15 &
Ex.D-16 Certified copy of the plaint and order sheet in
O.S.No.5858/2015
Ex.D-17 to
Ex.D-20 Electricity and water bills and receipts
Ex.D-21 &
Ex.D-22 Water bills
XIV ADDL.CITY CIVIL JUDGE
BANGALORE