Bangalore District Court
Sri.P.Sathyanarayana vs Sri.M.Rajendra on 28 November, 2017
IN THE COURT OF THE V ADDL. CITY CIVIL JUDGE,
AT BANGALORE CITY.
(CCH-13)
DATED THIS THE 28th DAY OF NOVEMBER, 2017
PRESENT
Smt.Nagaveni, B.A.,LL.B.
V ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE
O.S.NO.5289/2014
PLAINTIFF: Sri.P.Sathyanarayana
S/o late K.Pandurangasa
Aged 64 years, r/at
No.6, 1st cross,
Srirampuram,
Bangalore-560 021.
(By Sri.H.S.Somnath, Advocate)
/VS/
DEFENDANTS: 1. Sri.M.Rajendra
S/o Late Munegowda
Aged about 71 years,
2. Sri.M.Hullurappa
S/o late Munegowda
Aged about 68 years,
4. Sri.M.Shankara
S/o Late Munegowda
Aged about 56 years,
All are residing at
Vishwanatha Nagenahalli,
Arabic college, R.T.Nagar post,
Bangalore-560 032.
6. Mr.Allah Bakash
S/o Mr.Abdul Rouf
Aged about 43 years, r/at
No.27, Muniswamappa road,
2 O.S.No.5289/2014
M.R.Palya, J.C.Nagar,
Bangalore-560 006.
( By Sri.N.V.K, Advocate for D1,2,4
By Sri.S.R., Advocate for D6 )
Date of Institution of the 14-07-2014
suit
Nature of the suit (suit on Injunction suit
pronote, : suit for declaration
and possession ,suit for
injunction, etc.)
Date of Commencement of 16-07-2016
recording of evidence
Date on which judgment was 28-11-2017
Pronounced
Duration Years Months Days
03 04 14
( NAGAVENI )
V ADDL.CITY CIVIL JUDGE
BANGALORE
*****
JUDGMENT
The plaintiff has filed the suit for permanent injunction against the defendants restraining them, their legal heirs, henchmen, agents, attorney, executors or any person claiming any right through or under the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the 3 O.S.No.5289/2014 suit schedule property and such other reliefs. The description of the property is as under :
SCHEDULE PROPERTY All that part and parcel of immoveable property bearing Municipal No.82, situated at 1st cross, Kanakanagar, Bangalore (formerly bearing site No.6, situated at 'E' Block, Gramatana No.831/A of Nagawara village, Kasaba Hobli, Bangalore North Taluk), Bangalore (presently coming within the purview of Bruhath Bangalore Mahanagara Palike with BBMP PID No.96-156-82) measuring East to West 40 feet and North to South 47 feet consisting of residential A.C sheet house and bounded by:
East by : 1st cross West by : Site bearing No.7 North by : Private property South by : Site bearing No.5 .2. The brief facts of the plaint averments are as under:
The plaintiff is the absolute owner of the immoveable property bearing Municipal No.82, 4 O.S.No.5289/2014 situated at 1st cross, Kankanagar, Bangalore measuring East to West 40 feet and North to South 47 feet consisting of residential AC sheet house. The plaintiff has acquired the title and possession of the suit schedule property by virtue of an registered absolute sale deed dated 26/07/2004 having purchased the same from his previous owner Nagaraj. From the date of his purchase, he is in actual, uninterrupted, continuous, peaceful, physical possession and enjoyment of the schedule property by exercising all the acts of absolute ownership and complete domain over the suit schedule property. He has obtained all the civil amenities in the schedule property such as electricity and water supply in his name by paying huge deposits. Originally the suit schedule property belongs to defendant Nos.1 to 4, who had formed the layout in Sy.No.43/1 and 44 of the Nagawara village, Bangalore North Taluk, Bangalore and by virtue of agreement of sale, General 5 O.S.No.5289/2014 Power of Attorney and affidavit dated 18/07/1986, the said defendant Nos.1 to 4 had authorized and empowered one Smt.Nagarathna to sell and convey the suit schedule property and its adjoining site bearing No.7. The said Smt.Nagarathna i.e., the agreement holder and the General Power of Attorney holder of the defendant Nos.1 to 4 by exercising her powers under the agreement of sale, General Power of Attorney and affidavit dated 18/07/1986 has sold and conveyed the suit schedule property in favour of one Sri.S.Nagaraj by executing a registered sale deed dated 06/08/1997. The said Nagaraj was in actual physical possession and enjoyment of the suit schedule property by paying taxes etc. The defendant Nos.1 to 4 who are all predecessors of title in respect of the suit schedule property and who have sold and conveyed all their right, title and possession over the suit schedule property have not retained any right or title whatsoever in respect of the suit schedule property. The defendant 6 O.S.No.5289/2014 Nos.1 to 4 in collusion with the 5th and 6th defendants by practicing fraud have fictitiously created a fraudulent, sham and nominal sale deed dated 18/08/2012, under which it is made appear as ift he defendant Nos.1 to 4 through their General Power of Attorney holder, 5th defendant has sold some property bearing site Nos.6 and 7, situated at 1st cross, Kanakanagar, formed in out of Sy.Nos.43/1 and 44 situated at Nagawara village, Kasaba Hobli, Bangalore North Taluk, Bangalore measuring East to West 80 feet and North to South 47 feet. The said bogus sale deed is registered on 18/08/2012. Under the aforesaid fictitious sale deed dated 18/08/2012, the defendants have played fraud and have made an attempt to show as if the suit schedule property is sold to the 6th defendant. The defendants by colluding with each other have created the bogus sale deed dated 18/08/2012 to lay a fraudulent claim over the suit schedule property and thereby blackmail the plaintiff 7 O.S.No.5289/2014 and extract ransom from the plaintiff. Further contends that defendant Nos.1 to 4 as on execution of the alleged sale deed dated 18/08/2012 have got no subsisting right, title or interest over the suit schedule property and the alleged sale deed executed by the defendant Nos.1 to 4 through their General Power of Attorney holder 5th defendant in favour of the 6th defendant is ab-intio null and void, fraudulent, illegal, unlawful and without any right or title. Therefore, the alleged sale deed dated 18/08/2012 in favour of the 6th defendant does not confer any right, title or interest in favour of the 6th defendant. The alleged sale deed dated 18/08/2012 in favour of the 6th defendant is fraudulent and prima facie illegal, unlawful, unenforceable and no title can flow such a fraudulent, capricious and illegal deed. Therefore, defendants cannot lay any claim over the suit schedule property on the basis of the sale deed dated 18/08/2012. The 6th defendant on the basis of the said bogus sale deed 8 O.S.No.5289/2014 is trying to enter upon into the schedule property with the help of certain antisocial and goonda elements. The 6th defendant made one such attempt on 08/07/2014 by sending some goonda elements to the suit schedule property. The defendants have no manner of right, title or interest over the suit schedule property. The defendants are also making hectic efforts to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. The balance of convenience is completely in favour of the plaintiff and the plaintiff has made out prima facie case. The cause of action for the arose on 08/07/2014 when the 6th defendant alongwith his henchmen came near the suit schedule property and tried to break the gate and made an attempt to interfere with the peaceful possession of the plaintiff over the suit schedule property. Hence, constrained to file the suit.
3. On issue of suit summons, the defendant Nos.1,2, 4 to 6 appeared through their counsel. The 9 O.S.No.5289/2014 defendant Nos.1,2 and 4 have not chosen to file the written statement. In the meanwhile, defendant Nos.3 and 5 were deleted. The written statement of defendant No.6 is as under :
The entire averments denied as false except the admitted facts. The suit is wholly misconceived, fraudulent and an abuse of process of law. The plaintiff having suppressed the material facts, therefore does not deserve any relief from the hands of this Court. The plaintiff is therefore guilt for "suppression veri and suggestion falsi". Further, the conduct of the plaintiff as per the plaint averments and allegations is explicitly false and as the maxim goes "he who seeks equity must do equity and he who comes into equity must come to court with clean hands". The suit filed against the defendants is false, frivolous, vexatious and speculative and has been instituted with the sole object of harassing this defendant. The plaintiff is only taking a chance and speculating by instituting bogus 10 O.S.No.5289/2014 litigation, by resorting to dubious and fraudulent methods. The plaintiff has not made out a prima facie case. The balance of convenience does not lie in favour of the plaintiff and no irreparable injury will be caused to the plaintiff if the suit is dismissed. There is no proper cause of action for the suit and the one alleged in the plaint is imaginary. The suit is barred by laws of limitation and for non-joinder of parties. The defendant has not purchased a property which is measuring 40x47feet, infact this defendant has purchased the property which is measuring 80x47 feet, which has been purchased by this defendant from the defendant Nos.1 to 4 vide sale deed dated 18/08/2012 represented by their General Power of Attorney holder who is defendant No.5. The defendant Nos.1 to 4 had executed the General Power of Attorney dated 10/03/1985 in favour of the 5th defendant who in turn has registered the entire property of 80x47' vacant site at Nos.6 and 7, 1st cross, Kanakanagar, Old ward 11 O.S.No.5289/2014 No.96, new Ward No.22, Bruhath Bangalore Mahanagara Palike. These concocted documents can never come to the resuce of the plaintiff since these documents produced by the plaintiff begins at an agreement of sale, General Power of Attorney and an affidavit dated 18/07/1986 whereas this defendant purchased the property from General Power of Attorney holder which was dated 10/03/1985. The plaintiff has created these documents and it was necessary for him to get the sale deed registered and to give an authenticity, the plaintiff executed two sale deed on the same day for the full property by dividing the property in two parts and created all the necessary documents to support the said concocted sale deeds. The plaintiff has no right, title over the suit schedule property. The defendant Nos.1 to 4 have never executed any General Power of Attorney or any other document in favour of any person as claimed by the plaintiff. Hence, prayed that dismiss the suit. 12 O.S.No.5289/2014
.4. On the basis of the above pleadings, the following issues are framed ;
1) Whether plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of suit ?
2) Whether the plaintiff proves that interference caused by the defendant ?
3) Whether the plaintiff is entitled for the suit relief sought for ?
4) What order or decree ?
.5. In order to prove the case, the plaintiff himself examined as P.W-1 and got marked Ex.P.1 to Ex.P.17 and closed his side. The defendant No.6 examined himself as D.W-1 and got marked Ex.D.1 to Ex.D.7 and closed his side.
.6. Heard the arguments on both the sides. .7. My 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 Affirmatuve Issue No. 4 : As per final order 13 O.S.No.5289/2014 for the following:
REASONS .8. Issue Nos.1 & 2 : These issues are taken together for common discussion to avoid repetition of facts.
P.W-1, P.Sathyanarayana, in his affidavit evidence, reiterated the plaint averments. To support his contention, he has produced Ex.P.1, sale deed dated 26/07/2004, Ex.P.2 is the Encumbrance Certificate, Ex.P.3 is the khatha endorsement, Ex.P.4 is the khatha extract, Ex.P.5 is the khatha certificate, Ex.P.6 is the six tax paid receipts, Ex.P.7 is the electricity bill, Ex.P.8 is the application for water connection to BWSSB, Ex.P.9 is the acknowledgement, Ex.P.10 is the BWSSB challan dated 15/06/2013, Ex.P.11 is the agreement of sale dated 18/07/1986, Ex.P.12 is the General Power of Attorney dated 18/07/1986, Ex.P.13 is the affidavit dated 18/07/1986, Ex.P.14 is the form No.10, Ex.P.15 is the 14 O.S.No.5289/2014 khatha extract, Ex.P.16 is the tax receipt, Ex.P.17 is the BMP notice dated 12/02/1998. According to plaintiff, he is the absolute owner of the immovable property bearing Municipal No.82 situated at 1st cross, Kanakanagar, Bangalore, formerly bearing site No.6, situated at # Block, Gramatana No.831/A of Nagawara village, Kasaba Hobli, Bangalore, measuring East to West 40feet and North to South towards eastern side 47 feet consisting of residential A.C sheet house. Since from the date of purchase of the schedule property, he is in actual, uninterrupted, continuous, peaceful, physical possession and enjoyment of the schedule properties i.e., site Nos.6 and 7 and he is paying regularly taxes in respect of site Nos.6 and 7 and also obtained all civic amenities in the schedule property such as electricity and water supply in the name of the plaintiff by paying huge deposits. The plaintiff has built compound on all sides of the schedule property and has installed a gate for ingress. Originally site 15 O.S.No.5289/2014 Nos.6 and 7 was belonging to the defendant Nos.1 to 4, who had formed the layout in Sy.No.43/1 and 44 of Nagawara village, Bangalore North Taluk, Bangalore and by virtue of agreement of sale, General Power of Attorney and affidavit dated 18/07/1986, the said Smt.Nagarathna to sell and convey the site Nos.6 and 7 and said site No.7 is adjoining site No.6 and under sale agreement dated 18/07/1986, the defendant Nos.1 to 4 had received the entire sale consideration amount in respect of site Nos.6 and 7. The said Nagarathna, the General Power of Attorney holder of the defendant No.1 to 4 exercised her powers under the agreement of sale, she had sold and conveyed the site Nos.6 and 7 to Nagaraj and S.H.Bhaskar, the vendor of the plaintiff by executing a registered sale deed dated 06/08/1997. When defendant Nos.1 to 4 have sold and conveyed all their right or title, they have also ceased to have any subsisting rights, title, interest or possession over the suit schedule property. 16 O.S.No.5289/2014
The defendant Nos.1 to 4 in collusion and fraud have fictitiously created a fraudulent, sham and nominal sale deed dated 18/08/2012 under which it is made appear as if the defendant Nos.1 to 4 through their General Power of Attorney holder 5th defendant has sold some property bearing site Nos.6 and 7 situated at 1st cross, Kanakanagar, formed in out of Sy.Nos.43/1 and 44, situated at Nagawara village, Kasaba Hobli, Bangalore North Taluk, Bangalore measuring East to West 80 feet and North to South 47 feet. The defendants have played fraud and have made an attempt to show as if the suit schedule property is sold to the 6th defendant. The defendant Nos.1 to 4 as on execution of the alleged sale deed dated 18/08/2012 have got no subsisting right, title or interest over the suit schedule property and the alleged sale deed is ab- intio, null and void, fraudulent, illegal, unlawful and without any right or title. On the strength of bogus sale deed dated 18/08/2012, the defendants are 17 O.S.No.5289/2014 making illegal and unlawful attempts to interfere with the peaceful possession and enjoyment of the suit schedule property .
9. Per contra, it is the case of the defendant No.6 that plaintiff has filed the above suit by suppressing the material facts to gain sympathy of this Court. The defendant No.6 is the absolute owner in possession and enjoyment of Site Nos.6 and 7, 1st cross, Kanakangar, Old Ward No.6, New Bruhath Bangalore Mahanagara Palike Ward No.22, formerly site Nos.6 and 7 in 'D' and 'E' Block, formed out of Sy.Nos.43/1 and 44, situated at Nagawara village, Kasaba Hobli, Bangalore North Taluk, Bangalore, measuring East to West 80feet and North to South 47 feet in all measuring 3760 sq.ft. and bounded on the East by 25 feet road, West by remaining portion of same property, North by private property and south by site Nos.7 and 8 having acquired the same through a registered sale deed dated 18/08/2012 executed and registered by 18 O.S.No.5289/2014 M.Rajendra, M.Hullurappa, M.Jagannath and M.Shankar, all are the sons of late Munegowda, represented by their General Power of Attorney holder Srinivasaiah for a valuable sale consideration. Since the date of purchase of the same he is in lawful possession and enjoyment of the same by exercising all the acts of ownership over the same. The father of M.Rajendra, M.Hullurappa, M.Jagannath and M.Shankar had acquired by him through a registered Partition Deed dated 09/03/1962 i.e., the schedule property fallen to share of father of defendant Nos.1 to
4. After the demise of Munegowda, his sons have transferred all the relevant revenue records in their name and they were in peaceful possession and enjoyment of the same by exercising all the acts of ownership over the same. Thereafter, they formed a residential private layout in land bearing Sy.Nos.43/1 and 4 out of the said private residential layout, he has purchased the same through the registered sale deed. 19 O.S.No.5289/2014 He has purchased the suit schedule property from the said General Power of Attorney holder Srinivasaiah for a valuable sale consideration. To support his contention, he has produced Ex.D.1, certified copy of the sale deed dated 18/08/2012, Ex.D.2 is the General Power of Attorney dated 10/03/1985, Ex.D.3 affidavit dated 10/03/1985, Ex.D.4 is MR extract, Ex.D.5 is two RTC, Ex.D.6 is the Encumbrance Certificate and Ex.D.7 is the tax paid receipt.
10. The plaintiff has filed the suit against the defendants in respect of the suit schedule property. The plaintiff has sought permanent injunction restraining the defendants, their legal heirs, henchmen, agents, attorney, executors or any persons from interfering with his peaceful possession and enjoyment of the suit schedule property. After filing of the suit, the defendant Nos.3 and 5 have expired. Hence, as per the order dated 03/12/2015, defendant Nos.3 and 5 are deleted. Defendant Nos.1,2 and 4 20 O.S.No.5289/2014 have not chosen to file the written statement. Only defendant No.6 has contested the matter. According to both the parties, they have purchased site Nos.6 and 7 of Kanakanagar, Bangalore situated at E Block, Gramatana No.831/A of Nagawara village, Kasaba Hobli, Bangalore North taluk and each site having East to West 40 feet and North to South 47 feet from its General Power of Attorney and owner of the suit schedule property. To prove the contention of the plaintiff, he has produced documents at Ex.P.1 to Ex.P.17. According to plaintiff, he has purchased the site Nos.6 and 7 through registered sale deed dated 26/07/2004. The original copy of the registered sale deed dated 16/07/204 reveals that on 26/07/2004, he purchased site Nos.6 and 7 through one S.Nagaraj and S.H.Bhaskar for the consideration amount. According to plaintiff, since purchase of suit schedule property, he is in possession and enjoyment of the suit schedule property. Ex.P.2 is the Encumbrance Certificate i.e., 21 O.S.No.5289/2014 form No.15, it reveals that he has purchased the suit schedule property from S.Nagaraj for the consideration amount of Rs.3,20,000/- on 26/07/2004. The description of the property mentioned as khatha No.831/A, assessment No.43/1, Block E, site No.6, Khaneshumari No.6, measuring 40'x47'. Ex.P.3 is the succession letter issued by the Bruhath Bangalore Mahanagara Palike on 21/07/2005 in the name of the plaintiff in respect of the suit schedule property. Ex.P.4 is the khatha extract issued by the Bruhath Bangalore Mahanagara Palike on 11/07/2014 in respect of the suit schedule property. Ex.P.5 is the khatha certificate issued by the Bruhath Bangalore Mahanagara Palike on 11/07/2014 in the name of the plaintiff in respect of the suit schedule property. Ex.P.7 is the electricity bill. Ex.P.8 is the application form of BWSSB. Ex.P.9 is the GSC acknowledgement slip issued by BWSSB in respect of the permission of new connection in the name of the plaintiff. The address mentioned as 22 O.S.No.5289/2014 No.82, 1st cross, E block, Kanakanagar, Bangalore. Ex.P.10 is the receipt issued by BWSSB on 15/06/2013 in the name of the plaintiff. Ex.P.11 is the agreement of sale. The recital of the agreement of sale shows that on 18/07/1986, the defendant Nos.1,2 and 4 have executed the sale of agreement in favour of Nagarathna in Sy.no.43/1 and 44 in which site Nos.6 and 7 in E Block situated at Nagawara villag, Kasaba Hobli, Bangalore North Taluk having acquired the same under the Partition Deed. Further, the said agreement reveals that vendor have executed an agreement of sale and have executed an irrevocable General Power of Attorney and an affidavit in favour of the purchaser and delivered the possession of the schedule site, vacant possession has been handedover to the purchasers on the same day. The said documents have not been challenged by defendant No.1,2 and 4. Ex.P.12 is the General Power of Attorney dated 18/07/1986 executed by defendant 23 O.S.No.5289/2014 Nos.1 to 4 in favour of Nagarathna. The said document is also not denied by defendant Nos.1,2 and
4. Ex.P.14 is the assessment register extract for the year 1992-93, it reveals that in owner's column, the name of Nagarathna is mentioned. Ex.P.15 is the assessment register extract for the year 1995-99. In the said document, the name of S.Nagaraj mentioned in the owners column with respect to property No.82, measuring 40'x 47'. Ex.P.16 is the tax paid receipts for the year 1995-98 in the name of Nagaraj in respect of Municipal No.82, I cross, Kanakanagar issued on 31/12/1998. Ex.P.17 is the notice issued by Bruhath Bangalore Mahanagara Palike in the name of S.Nagaraj issued on 12/02/1998 for non-payment of taxes in respect of Sy.No.43/1 and 44 of Kanakanagar. The documents produced by the plaintiff reveals that one Nagarathna had purchased the site Nos.6 and 7 in respect of the suit schedule property from defendant Nos.1 to 4 and they have handedover the possession 24 O.S.No.5289/2014 on the same day and thereafter, her name was entered into the assessment register extract as owner. Further, she has sold the suit schedule property in the name of S.Nagaraj. Thereafter, his name has been entered in the revenue records. Thereafter, he has sold the suit schedule property in the name of the plaintiff after receiving sale consideration amount and put the plaintiff in his possession. Further in Ex.P.1 i.e., registered sale deed dated 26/07/2004 reveals that description of the property mentioned as site No.6, assessment No.43/1 and 44 situated at E Block, Nagawara Gramatana, No.831/A, Kasaba Hobli, Bangalore North Taluk, at present Bangalore Bruhath Bangalore Mahanagara Palike ward No.96, Kanakanagar, 1st cross, Municipal No.82 with house bounded on East by 1st cross, West by property No.7, North by others property and south by property No.5 measuring East to West 40ft and North to South 47 ft, residential house constructed 2 sq.ft., having AC sheet. 25 O.S.No.5289/2014 On the other hand, it is the contention of the defendant that he is in possession and enjoyment of the suit schedule property and he has purchased the suit schedule property from its General Power of Attorney through absolute owner of the suit schedule property. To prove the said contention, defendant had produced documents at Ex.D.1 to Ex.D.7. Ex.D.1 is the certified copy of the sale deed dated 18/08/2012. The said recital of the sale deed reveals that on 18/08/2012, one General Power of Attorney by name Srinivasaiah represented on behalf of defendant Nos.1 to 4 sold the suit schedule property in favour of the defendant No.6. At page No.4 at para No.2 of the said sale deed, it was mentioned that vendors have delivered the possession of the schedule property to the purchaser and purchaser has been put in possession thereof to hold and enjoy by him as an absolute owner. Further at para No.8 of the same document, it was mentioned that Vendor/General 26 O.S.No.5289/2014 Power of Attorney holder have handedover all the relevant documents and title deeds in original, which stands in their name to the purchaser on the same day. It is pertinent to note that compared to Ex.P.1, i.e., original copy of the registered sale deed dated 26/07/2004, Ex.D.1 is the subsequent document. Ex.D.2 is the General Power of Attorney executed on 10/03/1985. The recital of the said General Power of Attorney reveals that defendant Nos.1 to 4 have executed the General Power of Attorney in the name of the defendant No.5 in respect of site Nos.6 and 7 i.e., suit schedule property. Further, Ex.D.3 is the affidavit of defendant Nos.1 to 4, which was sworn before the notary on 10/03/1985. Ex.D.4 is the mutation register extract registered on 09/03/1962 measuring 5 acres 36 guntas in Sy.No.44. The said document reveals that the said measurement mutated in the name of defendant Nos.1 to 4 in the year 1962. Ex.D.5 is the RTC extract pertaining to Sy.No.43/1 measuring 27 O.S.No.5289/2014 2 acres 17 guntas, in possession column i.e., column No.10 mentioned as MTS/62-63 RR 3079 IHC 5/85- 86, for the year 2016-17 cultivators column mentioned the name of defendant Nos.1 to 4. But the defendant No.6 has not produced any materials to show that still in 2016-17, the suit schedule properties are not yet converted to non-agricultural land. Ex.D.6 is the mutation register extract, it reveals that on 18/08/2012, the defendant No.6 has purchased the suit schedule property from the General Power of Attorney holder by name Srinivasaiah. Ex.D.7 is the tax paid receipt for the year 2016-17. The defendant No.6 has not produced any materials to show that he has continued to pay the taxes to Bruhath Bangalore Mahanagara Palike since the purchase of the suit schedule property. Ex.D.7 clearly reveals that only defendant No.6 had paid the tax for the year 2016-17 after filing of this suit. D.W-1 in his cross-examiantion admitted that he has for the first time seen the suit 28 O.S.No.5289/2014 schedule property in the year 2012 and also he admitted that suit schedule property is having compound and site Nos.6 and 7 are totally having one compound. Further, he has admitted that said compound having one gate and also inside the gate there is one shed situated. Further, admitted that one watchman is residing in the said shop alongwith his family. But the D.W-1 has denied the suggestion made by the plaintiff counsel that plaintiff has kept the watchman in the suit schedule property and also further denied that plaintiff has constructed the compound in the site Nos.6 and 7. D.W-1 deposed that he purchased the site Nos.6 and 7 alongwith the compound. The description of the property as mentioned in Ex.D.1 is as under:
All that the piece and parcel of the property vacant site nos.6 and 7, 1st cross, Kanakanagar, Old Ward No.96, New Ward No.22, Bruhath Bangalore Mahanagara Palike (formerly site Nos.6 and 7, in D & E Block, formed in out of Sy.Nos.43/1 and 44, situated at Nagavara village, Kasaba Hobli, Bangalore North 29 O.S.No.5289/2014 Taluk) Bengaluru, measuring East to West 80 ft and North to South 47 feet, in all total measuring 3760 sq.ft. and bounded on East by 25 feet road, West by remaining portion of same property, North by private property and south by Site Nos.5 and 8.
According to defendant, he has purchased the suit schedule property alongwith compound, but nowhere stated in Ex.D.1 with regard to existence of compound and shed. Defendant No.6 has not clarified that who built the shed in site Nos.6 and 7. If defendant No.6 has purchased the site Nos.6 and 7 alongwith compound and shed, definitely it would be mentioned in Ex.D.1 as it is. But in this case, nowhere mentioned existence of the shed and compound in Ex.D.1. But existence of shed and compound mentioned in Ex.P.1, which was registered in the year 2004. The documents produced by the plaintiff reveals that since the date of purchase, the plaintiff and its previous owner paid the taxes to the Bruhath Bangalore Mahanagara Palike upto date and he is in 30 O.S.No.5289/2014 possession and enjoyment of the suit schedule property. According to plaintiff, the site Nos.6 and 7 having a compound and also one shed situated in the suit schedule property, one watchman and his family residing the shed for looking after the suit schedule property. D.W-1 admitted that watchman is residing in the site Nos.6 and 7 alongwith family, but he has not stated that who had kept the watchman in the suit schedule property. Further, defendant has not produced any material documents to show that Sy.No.43/1 is not converted to non-agricultural land and it was still an agricultural land. According to D.W-1, defendant Nos.1 to 4 are the previous absolute owners of the suit schedule property. But defendant No.6 has not chosen to examine the defendant Nos.1, 2 and 4. The documents produced by the plaintiff are supporting the case to prove his possession in respect of the suit schedule property. The defendant No.6 in his written statement and also in his affidavit evidence 31 O.S.No.5289/2014 denied the possession of the plaintiff in respect of the suit schedule property. Denying of the possession of the plaintiff by the defendant No.6 itself shows that defendant No.6 has interference with plaintiff's peaceful possession and enjoyment of the suit schedule property. The defendant Nos.1,2 and 4 have not challenged the plaint averments. The non- challenging of the plaint averments by defendant Nos.1,2 and 4 shows that they are interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. Further, the documents produced by the defendant reveals that even though defendant Nos.1,2 and 4 have executed the General Power of Attorney in favour of Nagarathna in respect of suit schedule property, again they created another General Power of Attorney and affidavit to grab the suit schedule property and also trying to interfere with plaintiff's peaceful possession. The defendant No.6 has not produced any materials to show that since 2004 32 O.S.No.5289/2014 till purchase of suit schedule property by defendant No.6, the defendant Nos.1 to 4 were in possession and enjoyment of the suit schedule property. The materials produced by the plaintiff shows that defendant is in possession and enjoyment of the suit schedule property from the date of purchase. Further defendant Nos.1, 2 and 4 have not challenged the sale deed dated 26/07/2004 and also revenue documents. D.W-1 in his cross-examination admitted that defendant Nos.1 to 3 are forming layout in their land. Further, admitted that in the year 1985-86, the defendant Nos.1 to 3 have sold all their sites. Further, admitted that defendant Nos.1 to 3 have sold sites through General Power of Attorney and agreement. Further, admitted that firstly suit schedule property belongs to revenue site and thereafter they come under the Bruhath Bangalore Mahanagara Palike. When defendant Nos.1 to 3 have formed layouts in the lands, the question of existence of the agricultural land in 33 O.S.No.5289/2014 respect of Sy.No.43/1 for the year 2016-17 as per Ex.D.5 does not arise at all. Even though P.W-1 in his cross-examination admitted that he do not know personally defendant No.6 and 6th defendant has not caused any interference to his property and also deposed that 6th defendant has not come to the suit property at any time, but P.W-1 in his cross- examination deposed that he has filed the suit as the defendant No.6 has obtained the documents. But the defendant no.6 in his written statement taken specific contention that he has purchased the suit schedule property as per sale deed dated 18/08/2012. Further, defendant No.6 denied the possession of the suit schedule property of plaintiff in his written statement and also affidavit evidence. After obtaining the subsequent document and denying the possession of the plaintiff by defendant No.6 itself shows that defendant No.6 has caused interference with the plaintiff's peaceful possession and enjoyment of the 34 O.S.No.5289/2014 suit schedule property. I have already stated that D.W-1 in his cross-examination admitted that one watchman is residing in site Nos.6 and 7, but he has not deposed that who appointed the said watchman in the suit schedule property. According to plaintiff, he has appointed the watchman and kept him with family in the suit schedule property. Hence, plaintiff proves that he is in possession and enjoyment of the suit schedule property and defendants have interfered with his peaceful possession and enjoyment of the suit schedule property. On the other hand, the defendant Nos.1,2,4 and 6 have failed to prove that defendant No.6 is in possession and enjoyment of the suit schedule property and it was purchased by defendant No.6. The materials produced by the defendants are not supporting the case of the defendant No.6. Accordingly, I answer issue Nos.1 and 2 in the Affirmative.
35 O.S.No.5289/2014
11. Issue No.3 : In view of my findings to issue Nos.1 and 2, plaintiff has proved that he is in possession and enjoyment of the suit schedule property and defendant Nos.1,2,4 and 6 have interfered with his peaceful possession and enjoyment of the suit schedule property. Hence, plaintiff is entitled for the suit reliefs as sought for. Accordingly, I answer issue No.3 in the Affirmative.
12. Issue No.4 : For the foregoing reasons, I pass the following :
ORDER The suit of the plaintiff is decreed with costs.
Permanent injunction granted against defendant Nos.1,2,4 and 6 restraining them, their agents, executors or any person claiming any right from interfering with his peaceful possession and enjoyment of the plaintiff over the suit schedule property.36 O.S.No.5289/2014
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court on this the 28th day of November, 2017.).
( NAGAVENI ) V ADDL.CITY CIVIL JUDGE, BANGALORE.
**** ANNEXURE List of witnesses examined for the plaintiff :
P.W.1 P.Sathyanarayana List of witnesses examined for the defendants :
D.W.1 Allah Bakash List of documents marked for the plaintiff :
Ex.P.1 Sale deed dated 26/07/2004
Ex.P.2 Encumbrance Certificate
Ex.P.3 Khatha endorsement
Ex.P.4 Khatha extract
Ex.P.5 Khatha certificate
Ex.P.6 Six tax paid receipts
Ex.P.7 Electricity bill
Ex.P.8 Application for water connection to BWSSB
Ex.P.9 Acknowledgement
Ex.P.10 BWSSB challan dated 15/06/2013
Ex.P.11 Agreement of sale dated 18/07/1986
Ex.P.12 General Power of Attorney dated 18/07/1986
Ex.P.13 Affidavit dated 18/07/1986
Ex.P.14 Form No.10
Ex.P.15 Khatha extract
Ex.P.16 Tax receipt
Ex.P.17 BMP notice dated 12/02/1998
37 O.S.No.5289/2014
List of documents marked for the defendant :
Ex.D.1 Certified copy of the sale deed dated 18/08/2012 Ex.D.2 General Power of Attorney dated 10/03/1985 Ex.D.3 Affidavit dated 10/03/1985 Ex.D.4 MR extract Ex.D.5 Two RTC Ex.D.6 Encumbrance Certificate Ex.D.7 Tax paid receipt ( NAGAVENI ) V ADDL.CITY CIVIL JUDGE BANGALORE **** 38 O.S.No.5289/2014