Bangalore District Court
Smt.Savithri vs Smt.M.Raheswari on 7 December, 2016
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.BAILUR SHANKAR RAMA,
B.Sc., M.A., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 7th day of December 2016.
O.S.No.7322/2014 & O.S.No.7324/2014
IN O.S.No.7322/2014
Plaintiff:- Smt.Savithri,
W/o.Bhavanishankar,
Aged about 46 years,
R/at No.1/E Attached to CMC
Katha No.106/138,
Nagawara Main Road Cross,
1st Main Road, 1st Stage,
5th Block, HBR Layout,
Bangalore.
(By - Sri.L.Subramani, Adv.)
v.
Defendants: 1. Smt.M.Raheswari,
Aged about 38 years,
W/o.Kumar.
2. Smt.Rajati,
Aged about 35 years,
W/o.Ramadas.
2 O.S.No.7322/2014 &
O.S.No.7324/2014
Both are R/at No.3 Line,
Basavalingappa Nagar,
Kadugondanahalli Village,
Bangalore- 560 045.
(D1 & 2-By Sri.Syed Ummer, Adv.)
Date of institution of the suit : 22.09.2014
Nature of the suit : Permanent Injunction
Date of commencement of : 06.03.2015
Recording of the evidence
Date on which Common : 07.12.2016
Judgment was pronounced
Total Duration in both suits : Years Months Days
02 02 15
IN O.S.No.7324/2014
Plaintiff:- Smt.Lakshmi
W/o.Vijayan,
Aged about 46 years,
R/at No.1/G Attached to CMC
Katha No.106/138,
Nagawara Main Road Cross,
1st Main Road, 1st Stage,
5th Block, HBR Layout,
Bangalore.
(By - Sri.L.Subramani, Adv.)
v.
Defendants: 1. Smt.M.Raheswari,
Aged about 38 years,
W/o.Kumar.
3 O.S.No.7322/2014 &
O.S.No.7324/2014
2. Smt.Rajati,
Aged about 35 years,
W/o.Ramadas.
Both are R/at No.3 Line,
Basavalingappa Nagar,
Kadugondanahalli Village,
Bangalore- 560 045.
(D1 & 2-By Sri.Syed Ummer, Adv.)
Date of institution of the suit : 22.09.2014
Nature of the suit : Permanent Injunction
Date of commencement of : 11.03.2015
Recording of the evidence
Date on which Common : 07.12.2016
Judgment was pronounced
Total Duration in both suits : Years Months Days
02 02 15
(BAILUR SHANKAR RAMA)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
COMMON JUDGEMENT
The plaintiff - Smt.Savithri in O.S.No.7322/2014 has
filed the suit against the defendants for the relief of
4 O.S.No.7322/2014 &
O.S.No.7324/2014
permanent injunction and costs in respect of suit schedule
property.
2. The plaintiff - Smt.Lakshmi in O.S.No.7324/2014
has filed the suit against the defendants for the relief of
permanent injunction and costs in respect of suit schedule
property.
3. The brief facts as averred in the plaint of both the
suits are as under:-
The plaintiff in O.S.No.7322/2014 is the absolute
owner of site bearing No.106/138-1/E, being portion of
marginal land attached to the property bearing BBMP Katha
No.106/138, morefully described in the suit schedule. The
plaintiff in O.S.No.7324/2014 is the absolute owner of site
bearing No.106/138-1/G, being portion of marginal land
attached to the property bearing BBMP Katha No.106/138,
morefully described in the suit schedule. The plaintiffs in
both the suits are in peaceful possession and enjoyment of
the respective properties shown in their plaint. The
plaintiffs submit that after purchase of the properties, they
have constructed ACC roofed house in their respective
5 O.S.No.7322/2014 &
O.S.No.7324/2014
properties and have been residing therein without any
hindrance by making payment of tax to BBMP. The
defendants are absolutely strangers to the suit schedule
properties. Without having any manner right, title or
interest started interfering with the peaceful possession and
enjoyment by the plaintiffs with the help of local police and
henchmen and threatened of illegal dispossession on
17.09.2014. Their attempt was thwarted with the help of
neighbouring property owners. While going away, the
defendants threatened to come again on 19.09.2014 with
more force and tried to demolish the walls and acquire
illegally the suit schedule properties. The plaintiffs have
approached the jurisdictional police, they have visited the
spot and informed the plaintiffs that since the dispute is of
civil nature, asked them to approach the competent court.
Hence, the suit.
4. After service of suit summons, the defendants
have appeared before court through their advocate and filed
the separate written statements in both the suits,
contending that suit is not maintainable. The plaintiffs are
guilty of suppression of facts and approached the court not
6 O.S.No.7322/2014 &
O.S.No.7324/2014
with clean hands. There is no cause of action for the
plaintiffs to file the suits. Without being in possession the
plaintiffs have filed the instant suits on imaginary cause of
action. The facts alleged by the plaintiffs narrating how
they acquired the suit properties is totally false and denied
by the defendants specifically. The say of the plaintiffs that
they have been in possession of the respective suit schedule
properties, constructed ACC roofed house and have been
making payment of tax to local authority and they are in
lawful possession and enjoyment is denied. The allegation
that the defendants have illegally interfered with their
possession with an intention to demolish the structures and
to put up the buildings and threatened to acquire the sites,
are false. Their say that they have approached the police
and the police have visited the spot and asked them to
approach the court as dispute is of civil nature, that is the
reason they have filed the suits, are denied by the
defendants. The defendants contend that in respect of suit
properties, suit is pending before City Civil Court in
O.S.No.6738/2014, therefore present suits are not
maintainable and prayed that suit be dismissed with costs.
7 O.S.No.7322/2014 &
O.S.No.7324/2014
5. I.A.No.1 application was filed under Order 39 Rules
1 and 2 of CPC in both the suits and after considering the
prima facie case, the court granted exparte T.I. Order. After
appearance by the defendants, they filed objections and
matter is taken up for final disposal of the case on merits.
6. Basing on the rival pleadings the following issues
are framed:-
ISSUES IN O.S.No.7322/2014
1. Whether the plaintiff proves her lawful
possession over the suit schedule property as
on the date of the suit?
2. Whether the plaintiff proves the alleged
interference of the defendants?
3. Whether the plaintiff is entitled for the relief of
permanent injunction?
4. What order or decree?
ISSUES IN O.S.No.7324/2014
1. Whether the plaintiff proves her lawful
possession over the suit schedule property as
on the date of the suit?
8 O.S.No.7322/2014 &
O.S.No.7324/2014
2. Whether the plaintiff proves the alleged
interference of the defendants?
3. Whether the plaintiff is entitled for the relief of
permanent injunction?
4. What order or decree?
7. The plaintiff - Smt.Savithri in O.S.No.7322/2014
got herself examined as PW-1 and got marked Ex.P1 to
Ex.P12 and closed her side. The plaintiff - Smt.Lakshmi in
O.S.No.7324/2014 got herself examined as PW-1 and got
marked Ex.P1 to Ex.P18 and closed her side. The defendant
No.1 in both the suits got herself examined as DW-1 and
got marked Ex.D1 to Ex.D21 and closed their side.
8. Though in both the cases evidence of the parties
were separately recorded, the defendants in both the suits
are same and their contention is similar and in
O.S.No.7322/2014 the defendants have got marked
documents Ex.D1 to Ex.D21 and same documents are relied
in O.S.No.7324/2014. Therefore, common judgment is
recorded.
9 O.S.No.7322/2014 &
O.S.No.7324/2014
9. After the closure of evidence, heard the
arguments.
10. My answers to the above issues are as follows:-
IN O.S.No.7322/2014
Issue No.1:- In the affirmative.
Issue No.2:- In the affirmative.
Issue No.3:- In the affirmative.
Issue No.4:- As per final order.
IN O.S.No.7324/2014
Issue No.1:- In the affirmative.
Issue No.2:- In the affirmative.
Issue No.3:- In the affirmative.
Issue No.4:- As per final order.
for the following:-
REASONS
11. ISSUE NOS.1 TO 3 IN O.S.NO.7322/2014:-
For the sake of convenience these issues are taken up
together for discussion to avoid repetition of facts and
evidence.
12. The pleaded case of the plaintiff is that, she is in
lawful possession and enjoyment of the suit schedule
property, morefully described in the schedule of the plaint.
10 O.S.No.7322/2014 &
O.S.No.7324/2014
After constructing ACC roofed house, she has been residing
in the suit schedule property by making payment of tax to
the BBMP. Without having any manner of right, title,
interest, much less possession over the suit schedule
property, on 17.09.2014 the defendants and their
henchmen came near the suit schedule property and
interfered with the possession of the plaintiff, their attempt
was thwarted with the help of neighbouring owners. The
defendants by giving threat that they would come again and
dispossess the plaintiff went away. That is the reason, for
the protection of her possession the plaintiff has filed the
instant suit for the relief of injunction.
13. The entire allegation of the plaintiff that, she is in
lawful possession of the suit schedule property by
constructing a house and alleged interference by the
defendants is specifically denied by the defendants. It is
contended that without there being in possession such a
suit was filed on imaginary cause of action, therefore suit
itself is not maintainable and sought for dismissal of the
same.
11 O.S.No.7322/2014 &
O.S.No.7324/2014
14. Since the relief claimed by the plaintiff is for
injunction simpliciter, she is expected to prove that she is in
lawful possession and enjoyment of the suit schedule
property as on the date of suit and the alleged interference
to her possession by the defendants in order to succeed for
the relief claimed in the suit.
15. In the evidence of PW-1, she has stated the facts
on par with plaint averments. She has produced Ex.P1 -
Registered Gift Deed dated 24.09.2011, wherein donor -
M/s.N.J.K. Enterprises, represented by its Executive Director
- Mr.Javeed Haroon through his GPA Holder had gifted the
schedule mentioned property in favour of the plaintiff, who
is the donee and accordingly the plaintiff has accepted the
gift. She has stated that her house is measuring 10' x 20'
site. Her cross-examination was recorded on 07.12.2015
and about 9 months back house was constructed by her. It
is the case of the PW-1 that, from the date of gift she has
been in possession and constructed ACC roofed house. But
what she has stated in the cross-examination that, she
doesn't know whether she had obtained any license from
the Corporation while constructing the house or not.
12 O.S.No.7322/2014 &
O.S.No.7324/2014
However, the learned counsel for the defendants has
confronted Annexure to Ex.P1 - Gift Deed, could she able to
show where the suit schedule property situated. She has
deposed that she is unable to show her property. She is an
illiterate lady. We can't expect that she should identity the
markings made in the sketch where details were written in
English. She has produced Ex.P2 - tax paid receipt,
evidencing payment of tax to BBMP dated 30.09.2011 and
Ex.P3 - receipt paid for the change of katha to BBMP. Ex.P4
is Form-B Property Register Extract shows name of the
owner / occupier in respect of property No.106/138/1E -
extent 12' x 24' area is showed against the name of PW-1.
Ex.P5 is tax paid receipt for the year 2010-2011, Ex.P6 is
for the year 2009-2010, Ex.P7 is for the year 2008-2009
and Ex.P8 is for the year 2011-2012. She has also
produced Encumbrance Certificate - Ex.P9, which shows
with the reference of donor - M/s.N.J.K. Enterprises and by
way of gift property was given to PW-1. The details
specified in the said Encumbrance Certificate itself are
mentioned in the suit schedule. Ex.P10 is the power
sanction letter issued by Assistant Executive Engineer
13 O.S.No.7322/2014 &
O.S.No.7324/2014
(Electrical) BESCOM dated 15.09.2014. The claim of the
plaintiff that she has constructed house, electricity was
installed to her house. Therefore, looking to the
documentary evidence relied by the plaintiff her claim is
based on the Gift Deed - Ex.P1 she was given the schedule
property and basing on it her name was entered in the
katha, she had constructed the building and by taking
electric installation, has been in lawful possession and
enjoyment of the suit schedule property.
16. DW.1 - Smt.M.Rajeshwari in her evidence has
categorically stated that, she is the absolute owner, in
possession and enjoyment of western portion of property
bearing Site No.1, Sy.No.15, V.P.Katha No.360/A,
previously situated at Government Karab Land, Nagawara
Village, Kasaba Hobli, Bangalore North Taluk, Bangalore,
presently situated at Katha No.360/a/15/1 Govindapura
Cross, Mariyamma Temple House, Nagawara Main Road,
Arabic College Post, Bangalore, now comes under BBMP
Ward No.24, measuring East to West:15 feet and North to
South:35 feet, in all measuring 525 square feet, for which
she is the owner and possessor of the same. The suit
14 O.S.No.7322/2014 &
O.S.No.7324/2014
schedule property what the plaintiff claiming is in reality it is
the property belonged to DW-1 stated hereinabove. She
has further clarified in her evidence that, she has got the
above said property from her mother - Smt.Kullapattamma
W/o.K.Muniswamy and her younger sister - Smt.Rajanti
D/o. late K.Muniswamy and W/o.M.Ramaraj under a
Registered Release Deed bearing No.HBB-1-02381-2014-15
dated 28.07.2014, registered in the Office of the Sub-
Registrar, Hebbal (Gandhinagar), Bangalore and handed
over the property and she is in peaceful possession and
enjoyment of the same.
17. DW-1 has produced certified copy of the said
Registered Release Deed dated 28.07.2014 as per Ex.D1. It
is her say that, based on the Release Deed her name was
entered in the katha. She has produced the certified copy
of Hakku Pathra in respect of her property. She has
produced Ex.D3 - Death Certificate of her father -
Sri.Muniswamy, who died on 06.05.1998. She has
produced tax paid receipts in respect of her property
No.360/A/15/1 from the year 2008-2009 till current year as
per Ex.D4 to Ex.D10. Ex.D11 - Demand Register Extract,
15 O.S.No.7322/2014 &
O.S.No.7324/2014
evidencing that said property is standing in the name of her
father - Sri.Muniswamy. She has produced the certified
copy of Assessment Register Extract at Ex.D12, which was
standing in the name of her father - Sri.Muniswamy. To
show that she had constructed the house, a sanctioned plan
is produced at Ex.D13. Ex.D14 is the certified copy of self
tax assessment declaration submitted to CMC,
Byatarayanapura, by her mother - Smt.Kullapattamma on
26.08.2005, clearly showing the building with ACC roofed
structure and open space an area of 1575 square feet such
declaration was submitted. Likewise, Ex.D15 is the certified
copy of sanction letter dated 20.11.2016 permitting her to
construct the building as per the sanctioned plan. That
means, much prior to 2005-2006 father of the DW.1 -
Sri.Muniswamy was in possession and sanctioned plan and
building license was obtained from CMC, long back
construction was put up in the said property covered under
Ex.D2 and tax was paid to local authority, can be gathered.
Ex.D16 to Ex.D18 are tax paid receipts dated 05.05.1993,
02.03.1994, 22.08.1991, 12.06.1992, 10.05.1989,
25.04.1990 shows that the said extent of property in
16 O.S.No.7322/2014 &
O.S.No.7324/2014
Sy.No.360/A was in possession of Sri.Muniswamy, father of
DW-1 and out of the said extent, by way of Release Deed
under Ex.D1 DW-1 was given an extent of 525 square feet
area covered under the schedule of Ex.D1. DW-1 has
produced certified copy of photos at Ex.D19 to Ex.D21, to
show that she has constructed a building and in possession
of the property which she acquired under the Release Deed
- Ex.D1 and also the documents produced by her to show
that her father - Sri.Muniswamy was in possession and
enjoyment of the property including the property covered
under Ex.D1 much previous to 1991.
18. What she has stated in her evidence that PW-1 is
not at all having any right, title, interest, much less
possession over the schedule property, inspite of the same
on 01.08.2014 at about 10:45 a.m. the plaintiff along with
her relatives came near to the suit property along with
antisocial and gooda elements, tried to trespass into the
property, which was resisted by her with the intervention of
neighbourers and friends. It is her case that, she has filed
complaint before K.G.Halli Police Station and filed a suit at
O.S.No.6738/2014 before the City Civil Judge (CCH-16),
17 O.S.No.7322/2014 &
O.S.No.7324/2014
Bangalore, against Smt.Tulasi W/o.Kumar, Smt.Gangamma
W/o.Bisu Chakravarthi, Smt.Rani W/o.Raja, Smt.Alliyamma
w/o.Late Muniyappa, Smt.Paravathi W/o.Late Dorai. The
above said persons are none other than the relatives of the
plaintiff. Therefore, it is her case that without having any
manner of right, on the strength of created documents the
plaintiff has interfered in her possession. Therefore, she is
not entitled to get any of the reliefs claimed in the suit.
19. Therefore, the learned counsel for the defendants
vehemently argued that none of the documents produced
by the plaintiff are helpful to prove her possession over the
suit schedule property, because the property belonged to
DW-1 and previously it was the property held by her father.
Therefore, without being in possession, on imaginary cause
of action the plaintiff has filed the suit, as such not entitled
to the relief claimed in the suit. He has relied on a decision
reported in AIR 2003 NOC 180 Andhra Pradesh, in the
case of Gundala Sathaiah v. Gundala Mallaiah, wherein
their lordships have held that, person in not lawful
possession of the property, not entitled to get the relief of
permanent injunction.
18 O.S.No.7322/2014 &
O.S.No.7324/2014
20. He has also relied on a decision reported AIR
2002 Karnataka 326, in the case of Venkataswamy v.
Narayana.A., and others, wherein it is held that, in a suit
for injunction filed by one of the parties claiming exclusive
right over the property, title to property in dispute, court
will have to determine question of title giving opportunity to
both the parties. Merely on basis of possession, the plaintiff
would not be entitled to final relief.
21. He has further relied on a decision reported in
AIR 2002 Allahabad 271, in the case of Kishan Lal v.
Radhey Shyam and other, wherein their lordships have
held that, in an injunction suit under Section 38 of the
Specific Relief Act, injunction cannot be issued in favour of a
trespasser against the true owner.
22. The other decision relied by him reported in AIR
2000 Bombay 34, in the case of SNP Shipping Services
Pvt. Ltd and others v. World Tanker Carrier
Corporation and another, wherein the lordships have held
that, if suit is filed without disclosing the cause of action and
19 O.S.No.7322/2014 &
O.S.No.7324/2014
materials show that it amounts to abuse of process of court,
plaint shall have to be rejected.
23. He has also relied on a decision reported in AIR
2003 Himachal Pradesh 126 in the case Sarwan Dass v.
Salam Jeet and others, wherein it is held that:
"A trespasser has no equities in his
favour nor is the owner of the property
trespassed under obligation to submit to the
acts of trespass committed by the wrong doer.
An owner thus have every right to enter upon
his property and restrain the trespasser from
perpetuating his illegal occupation of the
property possession whereof has been taken
by the other without any right or title".
24. In the light of the decisions relied by the learned
counsel for the defendants basing on the pleadings and
evidence led by the parties, it is necessary to adjudicate the
issues involved in this case. The whole arguments
canvassed by the learned counsel for the defendants that
the property belonged to DW-1 and formerly it was the
property belonged to her father - Sri.Muniswamy and after
his death, her mother - Smt.Kullapattamma had executed
Release Deed in her favour, releasing portion of the
20 O.S.No.7322/2014 &
O.S.No.7324/2014
property in katha No.360/A/15/1 East to West:15 feet North
to South:35 feet, morefully shown in Ex.D1 - Registered
Release Deed dated 28.07.2014 and she is in possession of
the same. It is her case that, she has filed suit
O.S.No.6738/2014 on the file of CCH-16, Bangalore, against
Smt.Tulasi W/o.Kumar, Smt.Gangamma W/o.Bisu
Chakravarthi, Smt.Rani W/o.Raja, Smt.Alliyamma w/o.Late
Muniyappa, Smt.Paravathi W/o.Late Dorai, as they
interfered in her possession and enjoyment. Whereas, the
pleading and evidence of the plaintiff in this case is based
on the previous possession in the dwelling house which was
given to her by her owner, where she had worked in
M/s.N.J.K. Enterprises through their executive Director -
Mr.Javeed Haroon through his GPA Holder by way of
Registered Gift Deed dated 24.09.2011 the portion in her
possession was gifted to her with free of cost. After
demolition of the same, in the very same property while she
started constructions the defendants started objecting. It is
the version in the evidence of DW-1 that, she is in
possession of the said site covered under Ex.D1 - Release
Deed and at the instance and instigation of the Councillor -
21 O.S.No.7322/2014 &
O.S.No.7324/2014
Sri.Govindaraju PW-1 committed trespass, that is the
reason it is her case that she has lodged a complaint
against others and also filed O.S.No.6738/2014 for the relief
of injunction.
25. The positive case of PW-1 that, the property
covered under the Gift Deed which was in her possession
since more than 3 decades and owner had gifted it in her
favour, recognizing her service to the factory and her
possession. Therefore, she has alleged that subsequently
DW-1 created Release Deed dated 28.07.2014 and other
documents and started interfered with the possession of the
plaintiff. It is the case of PW-1 that property covered under
the alleged Release Deed is different property. The plaint
schedule mentioned property covered under the Gift Deed is
the different property. Therefore, she apprehends illegal
dispossession in the hands of the defendants and TO protect
her possession, she has filed the instant suit for injunction.
26. Therefore, it is necessary to decide whether the
allegations of the DW-1 that she is in possession of the
property covered under Release Deed - Ex.D1, whether the
22 O.S.No.7322/2014 &
O.S.No.7324/2014
plaint schedule property and the written statement
mentioned property are one and the same or they are the
different properties. If the plaintiff is able to show that suit
schedule property is altogether different property and she is
in lawful possession of the same, certainly she is entitled to
file a suit for the relief of injunction and she would get
cause of action to file the suit to claim injunction against the
defendants. In this view of the matter, it is necessary to
appreciate the boundaries mentioned in the respective
Release Deed of DW-1 and the Gift Deed of PW-1 as there is
a dispute regarding identity of the property.
27. DW-1 has produced Ex.D2 - Hakku Pathra issued
by Block Development Officer in favour of father of DW.1 -
Sri.Muniswamy in Sy.No.15, Site No.1, extent 45' x 35'
covering the boundaries:-
East: Vacant site,
West: Road,
North: Well & vacant site and
South: Pathway.
Basing on the said Hakku Pathra dated 07.04.1981, his
name was entered in the records as could be seen from
23 O.S.No.7322/2014 &
O.S.No.7324/2014
Assessment Register Extract and tax paid receipts and after
his death, name of his wife - Smt.Kullapattamma was
entered to the extent of 1575 square feet, wherein house
was built by Sri.Muniswamy. Therefore, it is the case of
DW-1 out of the said extent her mother - Smt.Kullapattama
and her sister - Smt.Rajati have executed Release Deed,
releasing portion of the said property in favour of DW-1.
28. The schedule mentioned in Ex.D1 - Release Deed
is as follows:
Western Portion of Property bearing Site No.1,
Sy.No.15, V.P.Katha No.360/A, previously
situated at Government Karab Land, Nagawara
Village, Kasaba Hobli, Bangalore North Taluk,
Bangalore, presently situated at Katha
No.360/A/15/1 Govindpura Cross, Mariyamma
Temple House, Nagawara Main Road, Arabic
College Post, Bangalore, now comes under
BBMP Ward No.24, measuring East to West:15
feet and North to South:35 feet, in all
measuring 525 square feet, along with 5
square ACC sheet house, with red oxide
flooring, cement and bricks used for
construction of walls, jungle wood used for
doors and windows, with all civic amenities and
bounded on:
24 O.S.No.7322/2014 &
O.S.No.7324/2014
East by: Remaining portion of same
Site No.1,
West by: Mariyamma Temple House &
Nagawara Main Road,
North by: Private Property Sy.No.15 &
South by: Road.
Therefore, the claim made by DW-1 refers to the property
covering within the boundaries stated hereinabove, which is
the portion of the property falling western side of the
property covered under Ex.D2 - Hakku Pathra issued in the
name of her father - Sri.Muniswamy.
29. Therefore, now it is necessary to appreciate the
boundary of the property which was gifted in favour of PW-1
by the owner i.e., M/s.N.J.K. Enterprises through their
executive Director- Mr.Javeed Haroon through GPA Holder,
mentioned in Ex.P1 - Gift Deed, as under:
House property shown in annexed sketch as
property bearing No.106/138-1/E, (being a
portion of the marginal land attached to the
property bearing BBMP Katha No.106/138,
formerly bearing No.1, Khaneshumari No.138,
Assessment No.247, 248, 249, 250 and
property No.140, 141, 142 and 143, situated at
Nagawara Village, Kasaba Hobli, Bangalore
25 O.S.No.7322/2014 &
O.S.No.7324/2014
North Taluk, formerly bearing No.12 and 15 of
Nagawara Village, Kasaba Hobli, Bangalore
North Taluk, now bearing CMC Katha
No.106/138, Property No.247, 248, 249 and
250, Nagawara Village, Kasaba Hobli, Bangalore
North Taluk, Bangalore), situated at 1st Main
Road leading to 5th Block HBR Layout, Nagawara
Main Road Cross, Nagawara, within the limits of
Bruhat Bangalore Mahanagara Palike limits,
Bangalore, measuring East: 5 feet and 3 feet 6
inches, on West: 12 feet, on North: 18 feet 10
inches and on South: 14 feet and 8 feet 6
inches and bounded on the:
East by: House premises No.1/G,
West by: 3 feet wide Common Passage,
North by: Common Passage &
House Premises No.1/F and
South by: 1st Main Road, HBR Layout.
If we compare the boundaries of the suit schedule property
with the boundaries mentioned in Ex.D1 and Ex.D2,
certainly we can make out whether plaintiff is justified in
contending that the property which DW-1 is claiming as she
is in possession and belonged to her is altogether different
property than the property which is in possession of PW-1.
Because it is not the case of DW-1 that she is in possession
of the property other than the property covered under
26 O.S.No.7322/2014 &
O.S.No.7324/2014
Ex.D1 and Ex.D2 in the said survey number. Therefore,
along with the Gift Deed the sketch showing the layout plan
of marginal land which was prepared situated to the north
of I Main Road, HBR Layout, I Stage. According to the case
of the plaintiff that her owner - M/s.N.J.K. Enterprises have
constructed different small houses and allotted to their
workers working in their factory and by virtue of Gift Deed -
Ex.P1 the property shown in the sketch portion 'E' was
gifted by the donor in favour of donee i.e., PW-1, clear
demarcation with the extent is also mentioned in the said
sketch.
30. Therefore, one thing is clear that the suit
schedule property situated to the north of the said main
road and the marginal land situated to the south of factory
premises of M/s.N.J.K. Enterprises, where different old
houses situated belonged to the owner were given to the
respective occupants as stated in the Gift Deed. If that
boundary is compared with the Ex.D1 and Ex.D2 property
boundary, certainly to the south of DW-1's property it is
simply stated road, whereas in the Hakku Pathra of her
father it is mentioned as kaludari (pathway). But Ex.P1 -
27 O.S.No.7322/2014 &
O.S.No.7324/2014
Gift Deed with sketch clarifies the southern boundary is the
I Main Road, HBR Layout, I Stage. Further, the northern
boundary to suit schedule property is mentioned as
common passage and house premises No.1F. Whereas in
Ex.D1 the northern boundary is mentioned as private
property Sy.No.15. No doubt, the suit schedule property
was the part of the property belonged to India Design N.J.K.
Enterprises. The layout plan shown in the sketch annexed
to Ex.P1 and in particularly the property gifted in favour of
the plaintiff to its North : the portion F is shown and
thereafter, passage is there and the property of M/s.N.J.K.
Enterprises, can very well be gathered. Whereas, Ex.D2 -
Hakku Pathra of father of DW.1 shows to the North: well
and vacant site and no vacant site was there because the
strip of land where for the different occupants of the old
house constructed at the marginal land towards northern
side of HBR Layout, I Stage Main Road by way of Gift Deed
properties were given. As per the evidence of PW-1, she
and previously her father-in-law had resided in the said
house since more than 30-35 years and that was
demolished as could be seen from the photographs - Ex.P11
28 O.S.No.7322/2014 &
O.S.No.7324/2014
and P12. Therefore, question of northern side boundary
vacant site cannot be appreciated. Even in the schedule of
Ex.D1 northern boundary is not showed as well and open
site. Now, Ex.P1 shows the eastern boundary as house
premises No.1G. The sketch also shows that to the eastern
side of suit schedule property the premises which was in
possession of Smt.Lakshmi, who is plaintiff in
O.S.No.7324/2014. Even in Ex.D2 - Hakku Pathra it is
mentioned to the East: vacant site, but there exist no
vacant site even at the time of 1991, because old strip of
houses constructed by M/s.N.J.K. Enterprises, which were in
occupation of workers of the said firm since several years.
In Ex.D1 what is stated that remaining portion of same Site
No.1 as DW-1 wanted to say that out of 45' x 35' the
western portion 15' x 35' was released to her. Even
otherwise, if it is taken that towards northern side of her
property the remaining portion of the property which was
earlier granted to her situated, that boundary doesn't tally
to the existing facts at the spot. It is mentioned in Ex.D2 -
Hakku Pathra western boundary as road. In Ex.D1 -
Release Deed western boundary is shown as Mariyamma
29 O.S.No.7322/2014 &
O.S.No.7324/2014
Temple House and Nagawara Main Road. DW-1 in her
cross-examination at page No.9 she has stated to the East
of her property : house of her father situated, West: Temple
to the North: M/s.N.J.K. Garments, to the South: Road and
she claims that she has constructed the house in the said
property and denied the suggestion that PW.1 -
Smt.Savithri constructed the house in the property given to
her under Ex.P1 in an area of 281 square feet. But she
admits that northern boundary is M/s.N.J.K. Garments
property. But in Ex.D2 simply stated private property in
Sy.No.15. Whereas in Ex.P1 northern boundary it is shown
as common passage and house premises No.1F as could be
seen from the sketch annexed to Ex.P1, thereafter common
passage. Therefore, if she claims that western boundary of
her property is Mariyamma Temple House and Nagawara
Main Road, as per the sketch to Ex.P1 Nagawara Main Road
exists to the extreme western side of the property belonged
to M/s.N.J.K. Enterprises. The measurements mentioned
the strip of area the layout formed giving numbers A to J
from the sketch reveal that there is no chance of existence
of the property what DW-1 contended within the boundary
30 O.S.No.7322/2014 &
O.S.No.7324/2014
that is showed in Ex.D1 and Ex.D2. Therefore, learned
counsel for the plaintiff suggested to DW-1 in her cross-
examination that, false boundary is shown to the property
in Ex.D1 schedule and that property is altogether different
property. Therefore, the contention of DW-1 that she had
constructed the house and her property and the property of
the plaintiff is one and the same, cannot be appreciated.
The comparison of the boundaries discussed hereinabove
with Ex.P1 and Ex.D1 & D2, manifestly makes it clear that
the dispute raised by DW-1 was under the assumption that
her property stretch to the entire area which is lying south
of I Main Road, HBR Layout, I Stage and her say that she
had constructed the house and residing therein also cannot
be appreciated. Men may lie but not the circumstances.
The document - Ex.P1 - Gift Deed dated 24.09.2011 in
favour of PW.1 - Smt.Savithri was based on her possession
in the existed house belonged to M/s.N.J.K. Enterprises
since more than 3 decades and considering such long
standing possession, owner has chosen to gift the property
to the respective occupants and basing on it only BBMP
have entered her name, katha was changed, tax was
31 O.S.No.7322/2014 &
O.S.No.7324/2014
recovered from her to the extent of area stated in the Gift
Deed. Therefore, quite obviously the case of the plaintiff is
more probable.
31. The very fact that her say that she has lodged
the complaint before the police and filed the suit against
Smt.Tulasi W/o.Kumar, Smt.Gangamma W/o.Bisu
Chakravarthi, Smt.Rani W/o.Raja, Smt.Alliyamma w/o.Late
Muniyappa, Smt.Paravathi W/o.Late Dorai in
O.S.No.6738/2014 for the relief of injunction, who are the
occupants of other tenements covered in the sketch
annexed to Ex.P1. Copy of the complaint is not produced.
Copy of the plaint in that suit is not produced. She wanted
to contend that she is in possession of the property covered
under the Release Deed which is the subsequent Release
Deed dated 28.07.2014, whereas Gift Deed of PW-1 is of
dated 24.09.2011. Even if basing on the said Release Deed
her name was entered in the BBMP records, tax was paid,
are not sufficient to gather that she is in lawful possession
of suit schedule property, for the simple reason there are
reasons to believe that the area lying to the north of I Main
Road, HBR Layout, I Stage, belonged to India Design
32 O.S.No.7322/2014 &
O.S.No.7324/2014
M/s.N.J.K. Enterprises and the marginal land abutting to the
road and also to the western side Nagawara Main Road
situated. From that main road towards eastern side it was
the property belonged to M/s.N.J.K. Enterprises, which
obviously makes it clear that the property of DW-1 situated
at different place. As such, there is grain of truth in the
arguments canvassed by the learned counsel for the plaintiff
that the plaintiff's property is altogether distinct and
separate than DW-1's property. Under such circumstances,
the allegation made by DW-1 under the instigation of
Councillor - Sri.Govindaraju, the plaintiff had tried to
interfere and to construct building cannot be appreciated at
all and her say that the plaintiff is not in possession has no
water. Merely because earlier old house which was in
possession of the plaintiff was demolished for the
construction of new house in the very same place, doesn't
mean that she was not in possession of the property. On
the contrary, documentary evidence and the oral evidence
given by PW-1 is sufficient to gather that suit property is in
lawful possession and enjoyment of the plaintiff and it is
only DW-1 had interfered to the possession of the plaintiff,
33 O.S.No.7322/2014 &
O.S.No.7324/2014
more particularly though DW-1 had filed a suit for injunction
against others at O.S.No.6738/2014 wherein she has not
made the present PW-1 as party for the reasons best known
to her. Therefore, as the defendants had disputed the
plaintiff's right to make improvement in the suit schedule
property, which was gifted to her by her owner under Ex.P1,
the plaintiff has filed the instant suit to protect her
possession over the suit schedule property. Therefore, it is
needless to say that the plaintiff has established that she is
in lawful possession of the suit schedule property as on the
date of suit and alleged interference to her possession and
enjoyment by the defendants. As such, she is entitled to
get protection available under law form illegal dispossession
from the hands of the defendants by means of permanent
prohibitory injunction as prayed in the suit. Accordingly, I
answer Issue No.1 to 3 in the affirmative.
32. ISSUE NOS.1 TO 3 IN O.S.NO.7324/2014:-
As far as evidence in the present suit is concerned,
PW.1- Smt.Lakshmi has filed the suit claiming permanent
injunction in respect of the property measuring East: 27
34 O.S.No.7322/2014 &
O.S.No.7324/2014
feet, on West: 22 feet and 3 feet 6 inches, on North: 8 feet
6 inches and 20 feet and on South: 32 feet, totally 623
square feet, in the very same strip as discussed while
answering Issue Nos.1 to 3 in O.S.No.7322/2014, with the
following boundaries:
East by: House premises No.1/H,
West by: House premises No.1/E & 1/F,
North by: Common Well and
South by: 1st Main Road, HBR Layout,
It has come in the evidence of PW.1 - Smt.Lakshmi that
she is the absolute owner of the said site which was given
to her under Registered Gift Deed - Ex.P1 dated 24.09.2011
executed by M/s.N.J.K. Enterprises, represented by
Executive Director - Mr.Javeed Haroon through his GPA
Holder - Mr.Suryakantha.S.M. She has categorically stated
that as since 30 - 35 years she had worked in the said
company and was residing in the suit schedule property,
which belonged to the company allotted to its workers. She
has also deposed that like her other premises in the said
strips were also given to workers of the Company and they
were also given those premises by executing Gift Deeds in
35 O.S.No.7322/2014 &
O.S.No.7324/2014
favour of them. Therefore, as far as, how the property
came to PW-1 and also the discussions made while
determining Issue Nos.1 to 3 in O.S.No.7322/2014 can very
well be considered in this suit also to avoid repetition.
Therefore, what PW-1 has stated that to the east of her
property there exist road, to the west behind her house:
Well, thereafter factory, to the North: Road, to the South:
House Property. It is her case that after Gift Deed - Ex.P1
was given basing on it her name was entered in the BBMP
records and she has been making payment of taxes to the
BBMP and she is in lawful possession and enjoyment of the
suit schedule property. In the written statement filed by the
defendants, DW-1 has denied all the allegations made by
the plaintiff, but she has not spell out her defence
specifically. What is required under Order 8 Rule 3 and 5 of
CPC. She has produced Ex.P2 - Assessment Register
Extract, which is standing in her name. Ex.P3 to P6 are tax
paid receipts. Ex.P7 is the certified copy of Encumbrance
Certificate, evidencing that by virtue of the Gift Deed -
Ex.P1 she has become owner and possessor of suit schedule
property. Ex.P8 is the electricity connection receipt to her
36 O.S.No.7322/2014 &
O.S.No.7324/2014
house. Ex.P9 to P13 are tax paid receipts to BBMP. Ex.P14
to P18 are the photos. It is pertinent to note herein that
the earlier old house was demolished and Ex.P16 and P17
shows the construction of new house.
33. Here, the point for consideration that whether
DW-1 is able to show that the plaintiff is not at all in
possession of the suit schedule property and in fact, DW-1
is in possession of the same. All the documents produced in
O.S.No.7322/2014 discussed in Para No.17 are relied by her
to prove that she is in possession and property belonged to
her. Therefore, dispute regarding identity of the property is
raised and according to the version of DW-1, suit property
and the property covered under Ex.D1 and Ex.D2 are one
and the same. Whereas, case of PW-1 that suit schedule
property is distinct and separate, DW-1 had showed wrong
boundary in schedule of Ex.D1 and making false claim over
the suit schedule property and she has interfered with the
lawful possession and enjoyment over the suit schedule
property by PW-1. Therefore, it is necessary to cull out
boundary shown in Ex.D1 and Ex.D2, which is culled out
while discussing issues in O.S.No.7322/2014 with the
37 O.S.No.7322/2014 &
O.S.No.7324/2014
boundary shown in Ex.P1 certainly we can make out that
the layout sketch annexed to Ex.P1 shows the southern
boundary is the I Main Road, HSR Layout, I Stage and
northern boundary is the open well and passage, thereafter
property belonged to M/s.N.J.K. Enterprises. DW-1 admits
that to the North of the property: the property belonged to
M/s.N.J.K. Enterprises situated and the sketch reveal that to
the south of the entire strip of layout formed given to the
different workers, who were in occupation of the premises
through respective Gift Deeds. Nagawara Main Road is
situated at the extreme western side. If that being so, the
boundary that is mentioned in Ex.D1 and Ex.D2 doesn't tally
with the boundary shown to the suit schedule in Ex.P1 and
its sketch. The lye of the land could be gathered from the
sketch annexed to Ex.P1. DW-1 cannot dispute the right of
M/s.N.J.K. Enterprises to execute Registered Gift Deed to
the occupants, who were its employees / workers for petty
long time and through a registered documents suit schedule
property was gifted. Likewise, the plaintiff in the other suit
and others, against whom the present DW-1 has filed
O.S.No.6738/2014 before CCH-16, for the relief of
38 O.S.No.7322/2014 &
O.S.No.7324/2014
injunction. Therefore, for the discussions hereinabove,
boundaries shown in Ex.D1 and Ex.D2 doesn't tally with the
boundaries of the suit schedule property, which has the
backing of the sketch annexed to Ex.P1 and no property
adjacent to I Main Road, HBR Layout, I Stage belonged to
DW-1, can be gathered. Even she claims that to the West
of her property: Nagarawara Road and Mariyamma Temple
House situated, i.e., sufficiently away from the suit schedule
property. Because according to her from out of the
property allotted by the Panchayath in favour of her father -
Sri.Muniswamy, extent 45' x 35', out of it 15' x 35' was
given to her. That doesn't fits in the marginal layout shown
in the sketch annexed to Ex.P1. The different workers of
M/s.N.J.K. Enterprises were gifted are marked with specific
measurement and boundaries at A to J, certainly makes it
clear DW-1' case is doubtful and filing of suit against others
and these two plaintiffs were left out in the suit filed by her,
now she has come up with the version that they don't have
any cause of action, suit is not maintainable, liable to be
rejected under Order 7 Rule 11(a) & (d) of CPC and tried to
gain support from various decisions. But the evidence
39 O.S.No.7322/2014 &
O.S.No.7324/2014
discussed hereinabove in detail manifestly makes it clear
that DW-1's contention doesn't satisfy the conscience of the
court to believe that suit schedule property and the property
belonged to her covered under the Release Deed and Hakku
Pathra of her father i.e., Ex.D1 and Ex.D2 are one and the
same. On the contrary, on meticulous and careful
comparison of the boundary and extent of suit schedule
property with the property covered under Ex.D1 and Ex.D2,
we can make out that there is justification for PW-1 to claim
that suit schedule property belonged to her and she is in
lawful possession and enjoyment of the same. Therefore, it
is needless to say that when the old existing building in
which PW-1 was resided and in its place new building was
constructed DW-1 claims she had constructed falsely
because Release Deed itself shows that her father had
constructed the house and that was situated to the east of
her property. Therefore, the documentary evidence
produced by the plaintiff itself proves her case that she is in
lawful possession and enjoyment of the suit schedule
property. When old house was demolished and in its place
new construction she started DW-1 has come up with the
40 O.S.No.7322/2014 &
O.S.No.7324/2014
objections and she has even filed criminal complaint and
suit against others. PW-1 has stated that she along with
Smt.Savithri and others went to Police Station to file a
complaint, but that is invain, that is the reason she has filed
the instant suit. Looking to the nature of the claim made
this court has passed orders in both the above suits granted
ad-interim temporary injunction, that is in force even till
today against the defendants. Therefore, it is needless to
say that the plaintiff has proved to the satisfaction of the
court that she is in lawful possession of the suit schedule
property and alleged interference to her enjoyment by the
defendants. As such, as the relief claimed by her is for
protection under possessory remedy from the onslaught on
her right to enjoy the property, entitles her to get the
protection with the aid of permanent injunction.
Accordingly, I answer Issue Nos.1 to 3 in the affirmative.
34. ISSUE NO.4 IN BOTH THE SUITS:-
For the forgoing reasons, I proceed to pass the
following:-
41 O.S.No.7322/2014 &
O.S.No.7324/2014
ORDER
Suit filed by the plaintiff in O.S.No.7322/2014 against the defendants is hereby decreed.
The defendants, their henchmen, legal heirs, executors, any person or persons, are hereby restrained from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property by way of permanent injunction.
Suit filed by the plaintiff in O.S.No.7324/2014 against the defendants is hereby decreed.
The defendants, their henchmen, legal heirs, executors, any person or persons, are hereby restrained from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property by way of permanent injunction.
Under the circumstances, parties to bear their own costs.
Draw decree accordingly.
Copy of judgment shall be kept in O.S.No.7324/2014. (Dictated to the Judgment Writer on computer, typed by her, the transcript thereof corrected and then 42 O.S.No.7322/2014 & O.S.No.7324/2014 pronounced by me, in open Court, this the 7th day of December 2016) (BAILUR SHANKAR RAMA) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side in O.S.No.7322/2014:
PW.1 - Smt.Savithri
(b) Plaintiff's side in O.S.No.7324/2014:
PW.1 - Smt.Lakshmi
(c) Defendants' side in both the suits:
DW.1- Smt.M.Rajeshwari II. List of documents exhibited on behalf of:
(a) Plaintiff's side in O.S.No.7322/2014:
Ex.P1 : Original Gift Deed dated 24.09.2011 Ex.P2 & 3 : Tax Paid Receipts Ex.P4 : Form-B Property Register Extract Ex.P5 to 8 : Tax Paid Receipts Ex.P9 : Encumbrance Certificate Ex.P10 : Power Sanction Certificate Ex.P11 to 12 : 4 Photos along with CD
(b) Plaintiff's side in O.S.No.7324/2014:43 O.S.No.7322/2014 &
O.S.No.7324/2014 Ex.P1 : Original Gift Deed dated 24.09.2011 Ex.P2 : Form-B Property Register Extract Ex.P3 to 6 : Tax Paid Receipts Ex.P7 : Encumbrance Certificate Ex.P8 : Power Sanction Certificate Ex.P9 to 13 : Tax Paid Receipts Ex.P14 to 18 : 4 Photos along with CD
(c) Defendants' side in O.S.No.7322/2014:-
Ex.D1 : Certified copy Release Deed dated 28.07.2014 Ex.D2 : Certified copy Hakku Pathra Ex.D3 : Certified copy of Death Certificate of Muniswamy Ex.D4 to 10 : Certified copy of Tax Paid Receipts Ex.D11 : Certified copy Demand Register Extract Ex.D12 : Certified copy of Assessment Register Extract Ex.D13 : Certified copy of Sanctioned Plan Ex.D14 : Certified copy Self Assessment Tax Declaration Ex.D15 : Certified copy Letter evidencing Sanction of Plan Ex.D16 to 18 : Certified copy of Tax Paid Receipts Ex.D19 to 21 : Certified copy of Photos and CD 42nd ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.