Bangalore District Court
Sri.Gangadhara vs Bhagyamma on 2 February, 2018
IN THE COURT OF THE XLII ADDL., CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.P.SRINIVASA,
B.A.L., LL.M.,
XLII ADDL., CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 2nd day of February 2018.
O.S.No.3085/2010
Plaintiff:- Sri.Gangadhara
Since dead his LRs.
1(a). Smt.Lakshmamma,
W/o.late Gangadhara,
Aged about 45 years.
1(b). Smt.Varalakshmi,
Aged about 32 years,
D/o.late Gangadhara,
W/o.Krishna.
1(c). Sri.Mahesha,
Aged about 30 years,
S/o.late Gangadhara,
Sl.No.1(a) to (c) are residing at
No.422, Laggere Village,
Preethi Nagar, 4th Cross,
Bangalore - 58.
Plaintiff No.1(c) Sri.Mahesha,
Since dead by his LRs
1(c)(i). Smt.Anupa,
W/o.late Mahesha,
Aged about 26 years,
1(c)(ii). Lakshmi,
D/o.late Mahesha,
2 O.S.No.3085/2010
Aged about 4 years,
No.1(c) (ii) is a minor,
Represented by her mother
No.1(c)(i) as her natural
guardian.
Both are residing at
No.E-422, Preethi Nagar,
Lakshmi Devi Nagar,
4th Cross, Laggere Village,
Bengaluru - 560 058.
1(d). Smt.Manjula,
Aged about 30 years,
D/o.late Gangadhara,
W/o.Nagaraju,
R/at Boodigere Village,
Channarayapatna Hobli,
Devanahalli Taluk,
Bangalore Rural District.
(By Sri.R.Krishnappa, Adv.)
v.
Defendants:- 1. Bhagyamma,
Aged about 38 years,
W/o.Lakshmana,
R/at No.151,
8th Main Road,
Preethinagar,
Bangalore - 58.
2. Shivalingaiah,
S/o.Chikkaiah,
Aged about 40 years,
R/at No.48, 13th Main Road,
4th Block, Nandhini Layout,
Bangalore - 96.
(D1 by S.A. Partners)
D2 by Sri.H.N.Sunil Kumar, Adv.)
Judgement
3 O.S.No.3085/2010
Date of institution of the suit : 04.05.2010
Nature of the suit : Permanent & Mandatory
Injunctions
Date of commencement of : 16.11.2011
Recording of the evidence
Date on which the Judgment : 02.02.2018
was pronounced
Total Duration : Years Months Days
07 08 28
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGEMENT
The plaintiff has filed the above suit for permanent injunction, restraining the defendants or any one through them from interfering with plaintiffs' peaceful possession and enjoyment of the suit schedule property and for mandatory injunction to remove the constructions raised in the suit schedule property and to restore the same to its earlier vacant condition and costs.
2. The plaintiff's case in brief as under:-
The plaintiff namely, Gangadhara is the lawful owner and in possession of suit schedule sites bearing Nos.22 and 39, totally Judgement 4 O.S.No.3085/2010 measuring 40' x 60' , bearing Khatha No.341, Assessment No.4, forming single plot, situated at Laggere, Yeshwanthapura Hobli, Bengaluru North Taluk. Plaintiff's father namely, L.Narayanappa @ L.Narayana had gifted the suit property to the plaintiff vide., registered Gift Deed dated 22.05.2008. Plaintiff's grandfather namely, late Narasappa had purchased the property bearing Sy.No.4 measuring 2 acres by from one Smt.Byamma and her children vide., registered Sale Deed dated 18.04.1949. The above said suit schedule site Nos.22 and 39 are formed in the said survey number. After the death of said Narasappa said property devolved upon plaintiff's father. The said property is a vacant land and not alienated by plaintiff's father. On 21.03.2010, plaintiff was shocked to notice that someone had excavated earth over the suit schedule sites and on enquiry, plaintiff came to know that one Rama, Lakshmana and Manja had carried out the said digging work over the suit schedule sites.
Said Rama, Lakshmana and Manja have no right, title, possession or interest over suit schedule sites. Hence, on 30.03.2010, the plaintiff issued legal notice to said Rama, Lakshmana and Manja, calling upon them not to interfere with plaintiff's possession and enjoyment. Inspite of service of said notice, said Rama, Lakshmana and Manja failed to issue any reply to the said notice. On 05.04.2010, few persons came to the suit sites and tried to Judgement 5 O.S.No.3085/2010 take measurement of the excavation done on the suit schedule sites. The plaintiff prevented the same and questioned the said persons, said persons informed the plaintiff that they have been asked by Rama, Lakshmana and Manja to take measurement of the excavation done on the suit schedule sites. After sometime, another person came to the spot on cycle and picked up quarrel with the plaintiff alleging that he had taken advance from Rama, Lakshmana and Manja to put up construction work over suit schedule sites and threatened the plaintiff that he will teach a lesson to the plaintiff. Therefore, the plaintiff filed the suit in O.S.No.2577/2010 against said Rama, Lakshmana and Manja for permanent injunction and obtained interim order and said suit is pending on the file of Additional City Civil & Sessions Judge, Bengaluru (CCH-19). Inspite of said interim order, on 29.04.2010 said Rama, Lakshmana and Manja tried to carry out construction work and the plaintiff lodged complaint against them before police but, the police failed to take any action against the said persons stating that construction is being made by defendant no.1 i.e., Bhagya w/o.Lakshmana and no interim order is passed against her in O.S.No.2577/2010 and asked the plaintiff to approach the Civil Court. Further, defendant no.2 also started to raise construction on the southern portion of suit schedule site on 29.04.2010 and when questioned, defendant no.2, defendant Judgement 6 O.S.No.3085/2010 no.1 and her husband abused the plaintiff and warned him. The defendants have no right or title over the suit schedule sites to put up construction. During the pendency of O.S.No.2577/2010, the defendants have illegally raised the construction on the suit schedule sites and the same is required to be removed by them. Hence, the plaintiff has filed the above suit.
3. In response to the suit summons, the defendants 1 and 2 have appeared before the court through their respective counsels. The defendants 1 and 2 have filed separate written statements before this court. The defendant no.1 in her written statement has denied plaintiff's title and possession over suit schedule site No.22. Further, defendant no.1 has also denied the cause of action alleged by the plaintiff. The defendant no.1 has contended that the plaintiff is very much aware that during the lifetime of his grandfather i.e., late Narasaiah, he had sold site No.22 measuring 1.1. guntas in Sy.No.4 in favour of one Smt.Thimmamma. Plaintiff's father had no right or title to execute the Gift Deed in favour of the plaintiff. Plaintiff's father had filed suit in O.S.No.5148/2003 before XXXVII Addl. City Civil & Sessions Judge, Bengaluru, for permanent injunction, claiming that the land bearing Sy.No.4, measuring 2 acres 30 guntas situated at Laggere, out of which written statement schedule site is carved out, belonged to him by virtue of unregistered WILL Judgement 7 O.S.No.3085/2010 dated 14.05.1990 executed by his parents. The said suit came to be dismissed with findings that late Narasaiah had formed a layout in the said land and had sold sites to various persons and plaintiff's father namely, L.Narayana failed to prove his title and possession over the said land. The said judgment has attained finality therefore, present suit is not maintainable and liable to be dismissed. Further, defendant no.1 has contended that he is also owner of site No.4 formed out of above said survey number and said L.Narayana interfered with her possession and enjoyment and she filed a suit in O.S.No.8719/1995 and the said suit was decreed in her favour. Plaintiff's father had no title or possession over the land hence, Gift Deed executed by him is null and void. Further, defendant no.1 has contended that suit for bare injunction is not maintainable and same is liable to be dismissed since the plaintiff is not in possession and enjoyment of the suit schedule sites. The plaintiff has intentionally mentioned wrong schedule to mislead the court. The defendant no.1 has denied the averment that during interim order passed in O.S.No.2577/2010 the defendants have illegally put up construction over the suit schedule sites and same is required to be removed by them. The defendant no.1 has contended that Sy.No.4, measuring 2 acres, situated at Laggere originally belonged to one Smt.Byamma. Said Smt.Byamma and her Judgement 8 O.S.No.3085/2010 children sold the said land to one Narasaiah in the year 1949 and said Narasaiah in turn formed a layout and sold site No.22 measuring 1.1 guntas i.e., written statement schedule property in favour of one Smt.Thimmamma and said Smt.Thimmamma was in possession and enjoyment written statement schedule property. The khatha was transferred in her name and she was paying taxes to the concerned authorities from 1982 and also constructed a house measuring one square and rented the same. Further, said Thimmamma in turn gifted said site No.22 in favour of her daughter i.e., defendant no.1 vide., Gift Deed dated 04.05.2001. Subsequently, Smt.Thimmamma executed Rectification Deed dated 26.04.2010 rectifying the measurements of the written statement schedule property. The khatha is transferred in the name of defendant no.1 and defendant no.1 is paying taxes to the concerned authorities. Further, has stated that defendant no.1 has renovated the said house and further constructed one more house on the remaining portion of the site. Electrical connection and EC stands in her name. The defendant no.1 has leased the two houses to one Lakshminarayanappa and Mariyappa. The plaintiff has no right, title, possession or interest over site No.22. Hence, prayed that suit may be dismissed with costs.
Judgement 9 O.S.No.3085/2010
4. The defendant no.2 in his written statement had denied plaintiff's title and possession over the suit schedule site No.39. The defendant no.2 has denied plaintiff's averment that during the pendency of O.S.No.2577/2010 defendant no.2 has put up construction over suit schedule site No.39. Further, defendant no.2 has contended that plaintiff under the guise of claiming to be the owner of property bearing No.341 is trying to interfere with property of this defendant bearing formerly Khatha No.544/4 and present Khatha No.544/4-4, situated at Laggere Village. The defendant no.2 has contended that one Narasaiah was the absolute owner of 2 acres of land in Sy.No.4. Said Narasaiah sold site No.39 measuring 1.1 guntas of land to one Smt.Kempahonnamma vide., registered Sale Deed. Khatha of site No.39 was changed in the name of Smt.Kempahonnamma and she was paying taxes to the concerned authorities. Said Smt.Kempahonnamma after purchasing the said property constructed a house and residing in the said house. Peenya Panchayath assessed the said house property and assigned the assessment number as 544/4. Said Smt.Kempahonnamma gifted the said property to defendant no.1 vide., Gift Deed dated 03.05.2001. Subsequently, Rectification Deed was executed by Kempahonnamma in favour of defendant no.1 rectifying the measurements of said property. Subsequently, khatha has been Judgement 10 O.S.No.3085/2010 changed in the name of defendant no.1 and defendant no.1 was in possession and enjoyment of site No.39. Said defendant no.1 sold site No.39 in favour of defendant no.2 vide., registered Sale Deed dated 31.08.2006. From the date of purchase, defendant no.2 is the absolute owner and in possession and enjoyment of the said site No.39. Further, defendant no.2 has also dug a borewell in the year 2009 and obtained electricity connection to his property. The portion of the building of the written statement schedule property was in a dilapidated condition, defendant no.2 demolished the same and intended to put up new construction. The plaintiff has no right, title, possession or interest over written statement schedule property. Further, defendant no.2 claims that suit filed by the plaintiff for mandatory injunction without seeking possession is not maintainable. Hence, prayed that suit may be dismissed with costs.
5. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiff proves that he was in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference of the defendants?
Judgement 11 O.S.No.3085/2010
3. Whether the plaintiff is entitled for the relief of permanent injunction?
4. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff proves that after institution of the present suit and after interim orders granted in O.S.No.2577/2010 the defendants during the pendency of the suit have illegally raised construction on the suit schedule property and same is liable to be removed?
2. Whether the plaintiff entitled for the relief of mandatory injunction?
6. To prove the case of the plaintiff, GPA Holder of the plaintiff is examined as PW-1 and examined two witnesses as PWs.2 and 3 and got marked Ex.P1 to P24. GPA Holder of defendant no.1 is examined as DW-1 and got marked Ex.D1 to D33 and defendant no.2 examined himself as DW-2 and got marked Ex.D34 to D64.
7. Heard arguments. The learned counsel for defendant no.1 has cited the judgment dated 25.03.2008 in Civil Appeal No.6191/2001. The learned counsel for defendant no.2 has relied upon the decision reported in AIR 2008, Supreme Court Judgement 12 O.S.No.3085/2010 2033, in the case of Anathulla Sudhakar v. P.Buchi Reddy (Dead) by L.Rs. & others.
8. My findings on the above said issues are as follows:-
Issue No.1 :- In the Negative.
Issue No.2 :- In the Negative.
Issue No.3 :- In the Negative.
Addl.Issue No.1 :- In the Negative.
Addl.Issue No.2 :- In the Negative.
Issue No.4 :- As per final order.
for the following:-
REASONS
9. Issue Nos.1 & 2 and Additional Issue No.1:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
PW-1 is the daughter and GPA Holder of plaintiff Gangadhara. PW-2 is the son-in-law of the plaintiff and husband of PW-1. PW-3 is the neighbour of the suit schedule property. It is pertinent to note that, during the pendency of the above suit plaintiff Gangadhar died, therefore his legal heirs i.e., his wife and children are brought on record as plaintiff no.1(a) to (d). Further, during the pendency of the suit, plaintiff no.1(c) died, therefore his legal heirs i.e., his wife and daughter are impleaded as plaintiff no.1(c)(i) and 1(c)(ii).
Judgement 13 O.S.No.3085/2010
10. PW.1 in his cross-examination admits that late Narasappa had purchased 2 acres of land in Sy.No.4 of Laggere Village on 18.04.1949 from Smt.Byamma and her children vide., registered Sale Deed dated 18.04.1949. In support of the same, PW-1 has produced certified copy of Sale Deed dated 18.04.1949 at Ex.P4. Ex.P4 is marked subject to objection that original is not produced. It is pertinent to note that, PW-1 in her evidence has categorically stated that original sale deed is lost during the lifetime of her grandfather. The plaintiff has given sufficient reason for non-production of original sale deed before this court. Hence, plaintiff is entitle to produce secondary evidence before the court. Plaintiff has produced the Certified copy of sale deed at Ex.P4. Hence, objection raised by defendant counsel for marking Ex.P.4 is set aside. Ex.P.4 bears the seal and signature of competent authority therefore, Ex.P4 is admissible in evidence. Ex.P4 is more than 30 years old document hence, presumption has to be raised regarding its execution. The defendants have not produced any evidence to rebut the said evidence. From Ex.P4 it clearly goes to show that plaintiff's grandfather had purchased 2 acres of land in Sy.No.4 from Smt.Byamma and her children. It is also pertinent to note that, defendants in their evidence admit that Narasaiah had purchased 2 acres of land in Sy.No.4 vide., registered Sale Deed. Therefore, contention of the plaintiff that Judgement 14 O.S.No.3085/2010 plaintiff's grandfather purchased 2 acres of land in Sy.No.4 has to be accepted.
11. PW-1 in her examination-in-chief has stated that plaintiff's grandfather had purchased 2 acres of land in Sy.No.4. After the death of plaintiff's grandfather, plaintiff's father succeeded to the said property. Site Nos.22 and 39 are formed in said Sy.No.4 and plaintiff's father has gifted the said sites to the plaintiff vide., Gift Deed dated 22.05.2008. The plaintiff is in peaceful possession and enjoyment of suit schedule sites. Per contra, DW-1 in his evidence has stated site No.22 formed in Sy.No.4 was alienated by plaintiff's grandfather to Smt.Thimmamma. Said Thimmamma was put in possession and enjoyment of site No.22 and khatha of the said property was transferred in her name and she constructed a house measuring one square in the said site. Further, DW-1 has stated that said Smt.Thimmamma gifted site No.22 to her daughter i.e., defendant no.1 vide., Gift Deed dated 04.05.2001 and subsequently Rectification Deed was executed by her in favour of defendant no.1, rectifying the measurements of the site and khatha has been transferred in the name of defendant no.1 and defendant no.1 is in possession and enjoyment of said site and defendant no.1 has constructed another one square house in site No.22 and rented the said houses to various tenants. DW-2 in Judgement 15 O.S.No.3085/2010 his evidence has stated that Narasaiah had alienated site No.39 to Smt.Kempahonnamma vide., registered Sale Deed dated 05.11.1980 and said Smt.Kempahonnamma was put in possession and enjoyment of site No.39 and khatha of the said property was transferred in her name and she constructed a house in the said site. Further, DW-2 has stated that said Smt.Kempahonnamma gifted site No.39 to defendant no.1 vide., Gift Deed dated 03.05.2001 and subsequently Rectification Deed was executed by her in favour of defendant no.1, rectifying the measurements of the site and khatha has been transferred in the name of defendant no.1 and defendant no.1 was in possession of the said site No.39. The defendant no.1 sold site No.39 to defendant no.2 herein vide., Sale Deed dated 31.08.2006 and defendant no.2 was put in possession of the site No.39 and defendant no.2 has dug a borewell and obtained electricity connection to the said site. Khatha of site No.39 is mutated in the name of defendant no.2 and defendant no.2 is paying taxes to the concerned authority. In order to prove prima facie title over the suit schedule sites, the plaintiff has produced certified copy of Gift Deed dated 22.05.2008 at Ex.P2. The plaintiff claims title under the said Gift Deed. In support of defendants' contention, defendants have produced certified copy of Sale Deed dated 05.11.1980 executed by plaintiff's grandfather namely Judgement 16 O.S.No.3085/2010 Narasaiah in favour of Smt.Thimmamma with respect to site No.22 at Ex.D6 and certified copy of Sale Deed dated 05.11.1980 executed by Narasaiah in favour of Smt.Kempahonnamma with respect to site No.39 at Ex.D34. Ex.D6 and D34 are marked without any objections. Ex.D6 and D34 bears the seal and signature of competent authority hence, admissible in evidence. The defendants in their written statement have categorically contend that plaintiff's grandfather has sold site Nos.22 and 39 as per Ex.D6 and D34. It is not the case of the plaintiff that Narasaiah did not alienate the property and executed Sale Deed in favour of Smt.Thimmamma and Smt.Kempahonnamma. The plaintiff has not denied the Sale Deeds in her evidence. From Ex.D6 and D34, it clearly goes to show that site Nos.22 and 39 are carved out from Sy.No.4 of Laggere Village and said sites are alienated by Narasaiah in favour of Smt.Thimmamma and Smt.Kempahonnamma for valuable consideration. The said Sale Deeds are not challenged by Narasaiah during his lifetime. Similarly, said Sale Deeds are not challenged by plaintiff's father during his lifetime. From Ex.D6 it clearly goes to show that in the year 1980 itself plaintiff's grandfather had alienated the properties in favour of Smt.Thimmamma and Smt.Kempahonnamma. The property demand register extract, tax paid receipt and EC produced at Ex.D7, D8, D35, D36 and Judgement 17 O.S.No.3085/2010 D41 clearly goes to show that subsequent to Sale Deeds, khatha and revenue records are mutated in the name of Smt.Thimmamma and Smt.Kempahonnamma respectively and taxes are paid by Smt.Thimmamma and Smt.Kempahonnamma in respect of site Nos.22 and 39 to the concerned authorities in the year 1982 itself. It is pertinent to note that, PW-1 in her cross-examination admits that she has no knowledge of the above said Sale Deeds and khatha documents standing in the name of Smt.Thimmamma and Smt.Kempahonnamma. The plaintiff has not produced any contrary evidence to disprove Ex.D6 and D34 i.e., Sale Deeds. From Ex.D6 and D34 it is clear that Narasaiah during his lifetime sold site Nos.22 and 39 in favour of Smt.Thimmamma and Smt.Kempahonnamma. Therefore, contention of plaintiff that after the death of Narasaiah plaintiff's father succeeded to the property cannot be accepted. Therefore, contention of plaintiff that plaintiff's father succeeded to site Nos.22 and 39 falls to ground. Therefore, plaintiff's father had no title to execute Gift Deed in favour of plaintiff. Gift Deed produced by the plaintiff at Ex.P2 doesn't convey any title in favour of the plaintiff. Therefore, contention of the plaintiff that he is the absolute owner of suit schedule site Nos.22 and 39 falls to ground. Therefore, Ex.P2 i.e., Gift Deed is null and void.
Judgement 18 O.S.No.3085/2010
12. It is pertinent to note that, PW-1 in her examination- in-chief says that Narasaiah had purchased 2 acres of land from Smt.Byamma vide., registered Sale Deed dated 18.04.1949 and after his death, said property devolved upon plaintiff's father. PW-1 in her cross-examination says that they are in possession of entire 2 acres of land in Sy.No.4. It is pertinent to note that, in the plaint there is no averment that plaintiff is in possession of entire 2 acres of land in Sy.No.4. Any amount of evidence without pleadings will not serve any purpose. Therefore, evidence of PW-1 that plaintiff is in possession of entire 2 acres of land falls to ground. The defendants have produced certified copy of the judgment in O.S.No.5148/2003 at Ex.D2. O.S.No.5148/2003 is filed by plaintiff's father L.Narayana against one Angadi Rajanna and others for permanent injunction with respect to Sy.No.4 and the said suit came to be dismissed. In the said judgment, the Civil Court has clearly held that plaintiff's grandfather had formed a layout and sold sites to various persons and purchasers have put up construction in the said sites. Therefore, plaintiff's father failed to prove that he is in possession of entire 2 acres of land in Sy.No.4. The said judgment is not set aside by any Appellate Court. Therefore, said has attained finality. Therefore, evidence of PW-1 that they are in possession of entire 2 acres of land in Sy.No.4 cannot be accepted.
Judgement 19 O.S.No.3085/2010
13. PWs.1 to 3 in their examination-in-chief have stated that suit schedule sites are vacant lands and plaintiff is in possession of the same. Per contra, DW-1 has stated that Smt.Thimmamma had purchased site No.22 and she was in possession of site No.22 and constructed one square house and said Smt.Thimmamma gifted the said site to defendant no.1 and also executed Rectification Deed and as per said Gift Deed, defendant no.1 is the absolute owner and in possession of site No.22. Further, DW-2 has stated that Smt.Kempahonnamma had purchased site No.39 and she was in possession of site No.39 and she gifted site No.39 in favour of defendant no.1 vide., Gift Deed and also executed Rectification Deed, rectifying the measurements of the site and defendant no.1 has sold site No.39 in favour of defendant no.2. The defendant no.2 is the absolute owner and in possession of site No.39. It is pertinent to note that, the plaintiff has not produced any documentary evidence i.e., khatha or tax paid receipts before this court to prove his possession over suit schedule property. PWs.2 and 3 in their examination-in-chief have stated that the plaintiff is in possession of suit schedule property. Admittedly, PW-2 is the son-in-law of the plaintiff. PW-2 in his cross-examination admits that his native place is Devanahalli. PW-2 has not produced any documents to show that he is residing at Bengaluru. Therefore, Judgement 20 O.S.No.3085/2010 oral evidence of PW-2 without any documentary corroboration cannot be relied upon. PW-3 in his examination-in-chief says that he is residing near the suit schedule property. Per contra, PW-3 has not produced any document to show that he owns land adjacent to suit schedule property. Therefore, oral evidence of PW-3 without any documentary corroboration cannot be relied upon. In support of defendants' contention, the defendants have produced Sale Deeds i.e., Ex.D6 and D34 executed by Narasaiah in favour of Smt.Thimmamma and Smt.Kempahonnamma. Further, the defendants have produced Gift Deeds and Rectification Deeds executed by Smt.Thimmamma and Smt.Kempahonnamma in favour of defendant no.1 at Ex.D9, D27, D11 and D38 respectively. From the Sale Deeds i.e., Ex.D6 and D34 it is clear that Narasaiah has alienated site Nos.22 and 39 in favour of Smt.Thimmamma and Smt.Kempahonnamma and has put them in possession of said sites. Property Demand Extract, tax paid receipts and EC produced by the defendants at Ex.D7, D8, D18, D35, D36, D41 clearly goes to show that Smt.Thimmamma and Smt.Kempahonnamma were in possession of site Nos.22 and 39 respectively. The said property demand extract and tax paid receipts also goes to show the existence of house in site Nos.22 and 39 in the year 1982 itself and payment of house taxes by said Smt.Thimmamma and Judgement 21 O.S.No.3085/2010 Smt.Kempahonnamma. Ex.D9, D11, D37 and D38 i.e., Gift Deeds and Rectification Deeds are original documents and they are marked without any objection, hence, admissible in evidence. From the said Gift Deeds and Rectification Deeds, it clearly goes to show that Smt.Thimmamma and Smt.Kempahonnamma have gifted site Nos.22 and 39 respectively in favour of defendant no.1. Ex.D10 is the Khatha Extract of site No.22 and Ex.D39 is the Khatha Extract of site no.39, standing in the name of defendant no.1. Ex.D10 and D39 clearly goes to show that subsequent to Gift Deed, khatha of site Nos.22 and 39 are transferred in the name of defendant no.1. The said documents corroborates defendants' contention that subsequent to Gift Deeds, defendant no.1 was in possession of site Nos.22 and 39. Advocate for the plaintiff argued that in Ex.D9 and D37 signature of Sub-Registrar are different. Therefore, Ex.D9 and D37 cannot be relied upon. It is pertinent to note that, there is no pleading in the plaint that Ex.D9 and D37 are concocted or fabricated documents. Ex.D9 and D37 are registered documents. No evidence is produced by the plaintiff before this court to show that Ex.D9 and D37 are not genuine documents. Therefore, presumption has to be raised in favour of execution of the said documents. Therefore, above contention of the plaintiff falls to ground. The defendant no.2 has produced original Sale Deed Judgement 22 O.S.No.3085/2010 dated 31.08.2006 at Ex.D40. Ex.D40 is marked without any objection, hence admissible in evidence. DW-2 has categorically stated that defendant no.1 has sold site No.39 in his favour and executed Sale Deed as per Ex.D40. The said Sale Deed is not disputed by defendant no.1. From Ex.D40 it clearly goes to show that defendant no.2 has purchased site No.39 from defendant no.1. Ex.D41, D42 and D43 are the EC and Khatha Certificates. From the said documents, it clearly goes to show that after purchase of site No.39, khatha has been transferred in the name of defendant no.2 and defendant no.2 is in possession of site No.39. Therefore, contention of defendants 1 and 2 that they are the owners and in possession of site Nos.22 and 39 has to be accepted. The plaintiff has produced EC and RTCs of Sy.No.4 before this court. Ex.P10 i.e., RTC pertains to entire extent of 2 acres of land. As per judgement and decree in O.S.No.5148/2003 i.e., Ex.D2 and D3 plaintiff's is not in possession of entire extent of 2 acres of land. Therefore, Ex.P19 i.e., RTC is not helpful to the plaintiff. The plaintiff has not produced any documentary evidence to show that he is in possession of site Nos.22 and 39 as contended by him. Therefore, adverse inference has to be drawn against the plaintiff. The tax paid receipts produced by defendant No.2 at Ex.D44 to D51 also corroborates defendant's contention that he is paying taxes to the concerned authorities Judgement 23 O.S.No.3085/2010 regularly. The defendant no.2 in his pleadings has specifically contended that he has dug a borewell and has taken electricity connection to his site. In support of the same, defendant no.2 has produced bill issued by Varalakshmi Borewells and Pumps and electricity bills at Ex.D52 to D54 and also photograph at Ex.D64, which clearly goes to show the existence of borewell in site No.39. Therefore, contention of defendants that they are in possession of suit schedule sites has to be accepted. Hence, plaintiff's contention that he is in possession of the suit schedule property cannot be accepted.
14. Further, PW.1 has stated in her examination-in-chief that Rama, Lakshmana and Manja interfered with plaintiff's possession, therefore plaintiff filed a suit in O.S.No.2577/2010 against said Rama, Lakshmana and Manja and obtained interim order against them and during the pendency of the above suit, defendants have put up construction in the suit schedule sites. Admittedly, the defendants herein are not parties in the above said suit. Therefore, order passed in the said suit is not binding on the defendants herein. It is not the case of the plaintiff that the defendants personally came to the spot and interfered with plaintiff's possession. Therefore, contention of plaintiff that interim order passed in O.S.No.2577/2010 is violated by the defendants herein cannot be accepted. The defendants have Judgement 24 O.S.No.3085/2010 stated that construction was put up much prior to filing of O.S.No.2577/2010. Further, defendant no.1 has stated that she has rented the houses to third persons. It is pertinent to note that, from Ex.D7 and D35 i.e., Property Register Extracts produced by the defendants clearly goes to show that in the year 1982 house was in existence in the suit schedule property and the defendants' pre-decessors-in-title have paid house taxes to the concerned authorities. The defendant no.1 has also produced Rental Agreements at Ex.D22 to D24 before this court to show that defendant no.1 has rented houses to third persons. Therefore, contention of the plaintiff that during pendency of O.S.No.2577/2010 the defendants have put up construction cannot be accepted. More over, PW-1 in the cross-examination admits that at present defendants are in possession of the suit schedule property. Therefore, question of interference doesn't arise for consideration. Therefore, the plaintiff has failed to prove interference as alleged in the plaint.
15. Advocate for the defendants argued that plaintiff's title and possession is denied by the defendants therefore, plaintiff's suit for bare injunction without seeking the relief of declaration and possession is not maintainable and relied upon the judgment reported in AIR 2008, Supreme Court 2033, in the case of Judgement 25 O.S.No.3085/2010 Anathulla Sudhakar v. P.Buchi Reddy (Dead) by L.Rs. & others, wherein the lordships have held as under:
......."11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction".......
Judgement 26 O.S.No.3085/2010 From the above judgment it is clear that in case where title and possession of the plaintiff is denied and plaintiff is not in possession of the suit property, the plaintiff is bound to file a suit for declaration, possession and injunction. In the present case, PW-1 admits that the defendants are in possession of the suit schedule property and constructed a sheet house. Plaintiff's title is denied by the defendants and defendants have set up their title over the suit schedule property. Therefore, plaintiff is bound to seek the relief of declaration, possession and injunction. Plaintiff has filed the suit for injunction therefore, said suit is not maintainable.
16. In the light of the above discussion, I answer Issue Nos.1 & 2 and Additional Issue No.1 in the Negative.
17. Issue No.3 & Additional Issue No.2:-
The plaintiff has failed to prove Issue Nos.1 & 2 and Additional Issue No.1 hence, the plaintiff is not entitle for any relief. Accordingly, I answer Issue No.3 and Additional Issue No.2 in the Negative.
18. Issue No.4:-
In view of my above discussion, I proceed to pass the following:
Judgement 27 O.S.No.3085/2010 ORDER Suit of the plaintiff is dismissed with costs. Draw decree accordingly. (Dictated to the Judgement Writer, typed by her, the transcript thereof corrected and then pronounced by me, in the open court, this the 2nd day of February 2018) (P.SRINIVASA) XLII Addl., City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Smt.Varalakshmi PW.2 - Sri.Krishnappa PW.3 - Sri.Siddagangappa
(b) Defendants' side:
DW.1 - Sri.Chikkahanumaiah.K II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Original GPA
Ex.P2 : Certified copy of Gift Deed dated
22.05.2008
Ex.P3 : Encumbrance Certificate
Ex.P4 : Certified copy of registered Sale
Deed dated 18.04.1949
Ex.P5 to 12 : 7 photographs
Ex.P5(a) to 12(a) : Negatives
Judgement
28 O.S.No.3085/2010
Ex.P13 : Acknowledgement of Police
Ex.P14 : Certified copy of Order Sheet in
O.S.No.2577/2010
Ex.P15 : Legal Notice dated 30.03.2010
Ex.P16 : Postal Receipts
Ex.P17 & 18 : Postal Acknowledgements
Ex.P19 : RTC
Ex.P20 : Certified copy of IA.No.1 in
O.S.No.2577/2010
Ex.P21 : Certified copy of Affidavit in
O.S.No.2577/2010
Ex.P22 : Certified copy of Layout Plan
Ex.P23 & 24 : Encumbrance Certificates
(a) Defendants' side:
Ex.D1 : Original General Power of Attorney
Ex.D2 & 3 : Certified copy of Judgement and
Decree in O.S.No.5148/2003
Ex.D4 & 5 : Judgement and Decree in
O.S.No.8719/1995
Ex.D6 : Certified copy of Registered Sale
Deed dated 05.11.1980
Ex.D7 : Demand Register Extract
Ex.D8 : Tax Paid Receipt
Ex.D9 : Original Registered Gift Deed dated
04.05.2001
Ex.D10 : Form-B Property Register
Ex.D11 : Original Registered Rectification
Deed dated 26.04.2010
Ex.D12 to 17 : Electricity Bills and Receipts
Ex.D18 : Encumbrance Certificate
Ex.D19 : Acknowledgement
Ex.D20 & 21 : Tax Paid Receipts
Ex.D22 to 24 : Rental Agreements
Ex.D25 to 33 : Photographs and CD
Ex.D34 : Certified copy of Registered Sale
Deed dated 05.11.1980
Ex.D35 : Demand Register Extract
Ex.D36 : Tax Paid Receipt
Judgement
29 O.S.No.3085/2010
Ex.D37 : Original Gift Deed dated
03.05.2001
Ex.D38 : Original Rectification Deed dated
31.08.2006
Ex.D39 : Assessment Register Extract
Ex.D40 : Original Sale Deed dated
31.08.2006
Ex.D41 & 42 : Encumbrance Certificates
Ex.D43 : Assessment Register Extract
Ex.D44 to 51 : Tax Paid Receipts
Ex.D52 : Bill issued from Varalakshmi
Borewells and Pumps
Ex.D53 & 54 : Electricity Bill and Receipt
Ex.D55 : Copy of Police Complaint
Ex.D56 : Electricity Bill
Ex.D57 : Electricity Receipt
Ex.D58 : Water Bill
Ex.D59 : Water Receipt
Ex.D60 to 64 : 5 Photos
Ex.D60(a) to 64(a) : Negatives
XLII ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
Judgement