Bangalore District Court
Sri.Anthony Ugene vs Sri.Nagaraja on 10 January, 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 10th day of January 2018.
O.S.No.2989/2014
Plaintiff:- Sri.Anthony Ugene,
Aged about 27 years,
S/o. late P.Sabastian,
R/at No.945/43, 6th Main,
Abbaiah Reddy Layout,
Banasawadi,
Bangalore-560 043.
(By Sri.C.H.Ramachandra Reddy, Adv.)
v.
Defendants:- 1. Sri.Nagaraja,
Aged about 58 years,
S/o.Abbaiah Reddy,
2. Sri.Suresh Babu,
Aged about 53 years,
S/o.Abbaiah Reddy,
Both are R/at No.113/1,
2nd 'G' Cross, 1st Main,
O.M.B.R. Layout, Banasawadi,
Bangalore-560 043.
(Defs.1 & 2 - By Sri.B.R.Ananda, Adv.)
Date of institution of the suit : 15.04.2014
Nature of the suit : Permanent Injunction
Judgement
2 O.S.No.2989/2014
Date of commencement of : 16.04.2015
Recording of the evidence
Date on which the Judgment : 10.01.2018
was pronounced
Total Duration : Years Months Days
03 08 25
(P.SRINIVASA)
XLII ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGEMENT
The plaintiff has filed the above suit for permanent injunction, restraining the defendants, their agents, servants, henchmen, workers or anybody acting under them or through them from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property or from putting up construction in the suit schedule property and costs.
2. The plaintiffs' case in brief as under:-
Plaintiff's father was working as Head Messenger in State Bank of India, Industrial Finance Branch, Bangalore. Plaintiff's father namely, P.Sabastian purchased the suit schedule property along with one square A.C. sheet roof building from P.Krishna Reddy for consideration vide., registered Sale Deed dated 10.06.1988. Plaintiff's father along with his family members was Judgement 3 O.S.No.2989/2014 in possession and enjoyment of the suit property during his lifetime. Said house had water and electricity connection from the concerned authorities. On 28.05.2007, plaintiff's father died leaving behind plaintiff, his mother and 3 sisters as his legal heirs to succeed to his estate. After the death of plaintiff's father, plaintiff's mother was the Kartha of the family hence, khatha and revenue records were mutated in her name. Subsequently, Plaintiff's mother and 3 sisters relinquished their right in the suit schedule property in favour of plaintiff and executed Relinquishment Deed dated 11.06.2012. Hence, plaintiff is the absolute owner and in possession of the suit schedule property.
The plaintiff mobilized funds in order to put up new construction over the suit schedule property and demolished the existing building and dug trenches around the suit schedule property and constructed a sump in the suit schedule property and laid pillars around the property and completed the building up-to lintel level. On 10.04.2014, the defendants without having any manner of right, title or interest along with their men came near the suit property and interfered with plaintiff's possession. The plaintiff was able to resist the same. The defendants threatened that they will dispossess the plaintiff from the suit schedule property. The plaintiff approached the police but, the police advised the Judgement 4 O.S.No.2989/2014 plaintiff to approach competent civil court. Hence, 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 counsel. The defendant no.1 filed the written statement and defendant no.2 filed memo adopting the written statement of defendant no.1. The defendants in their written statement have denied plaintiffs' title, possession over the suit schedule property and cause of action alleged in the plaint. The defendants have contended that they are the absolute owners and in possession of the Site bearing No.43, House List Katha No.126/2, Property No.241/1, Ward No.88, Abbaiah Reddy Layout, Banasawadi, K.R.Puram, Bangalore East Taluk, measuring East to West:40 feet and North to South:40½ feet. Further, have contended that in Survey No.241/1, 3 acres 15 guntas was re-granted under the Inams Abolition Act to defendants' grandfather namely Hanumappa. Said Hanumappa had 4 children namely defendants' father Chikkabbaiah, Krishna Reddy, Gujjappa and Hanumantha Reddy. Said Hanumappa was in peaceful possession and enjoyment of the above said land during his lifetime. After his death, on 18.04.1977, Hanumappa's children partitioned the joint family properties including Survey No.241/1. In the said partition, 13¼ guntas in Survey No.241/1 was allotted to the share of Judgement 5 O.S.No.2989/2014 defendants' father. In the said land, revenue layout was formed and sites were sold to various purchasers except Site No.43. Defendants' father died on 22.03.2006 and after his death, on 22.08.2006, defendants' mother executed Gift Deed in favour of defendants in respect of Site No.43. The defendants are the absolute owners and in possession and enjoyment of Site No.43 situated in Sy.No.241/1. Hence, prayed that suit may be dismissed with costs.
4. On the basis of above pleadings, below mentioned issues arise for consideration:-
ISSUES
1. Whether the plaintiff proves his 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?
5. To prove the case of the plaintiff, plaintiff examined himself as PW-1 and got marked Ex.P1 to P21 and examined one witness as PW-2. The defendant No.1 examined as DW-1 and got marked Ex.D1 to D26.
6. Heard arguments.
7. My findings on the above said issues are as follows:-
Judgement 6 O.S.No.2989/2014 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
8. Issue Nos.1 & 2:- These issues are taken up together for consideration to avoid repetition of facts, evidence and convenience.
PW-1 and PW-2 in their examination-in-chief has stated that plaintiff's father purchased the suit schedule property along with one square A.C. sheet roof building vide., registered Sale Deed dated 10.06.1988 from one P.Krishna Reddy for valuable consideration. Further has stated that plaintiff's father and his family members were residing in the said house and said house had water and electricity connection. On 28.05.2007, plaintiff's father died leaving behind plaintiff, his mother and 3 sisters to succeed to his estate. After the death of plaintiff's father, plaintiff's mother was the Kartha of the family hence, khatha and revenue records were mutated in her name. Subsequently, Plaintiff's mother and 3 sisters relinquished their right in the suit schedule property in favour of plaintiff and executed release Deed dated 11.06.2012. Hence, plaintiff is the absolute owner of the suit schedule property. Per Contra, DW-1 in his examination-in-
Judgement 7 O.S.No.2989/2014 chief has stated that Sy.No.241/1, measuring 3 acres 15 guntas of Banasawadi was granted to his grandfather namely, Hanumappa. Said Hanumappa had 4 children namely defendants' father Chikkabbaiah, A.Krishna Reddy, Gujjappa and Hanumantha Reddy. After the death of Hanumappa, joint family properties were partitioned including Survey No.241/1, measuring 3 acres 15 guntas and in the said partition, 13¼ land in Survey No.241/1 was allotted to the share of defendants' father i.e., Chikkabbaiah and said Chikkabbaiah formed revenue layout and sold sites to various purchasers and retained the suit schedule site. After the death of Chikkabbaiah, defendants' mother executed Gift Deed in favour of defendants on 22.08.2006 in respect of suit schedule property and the defendants have succeeded to the suit schedule property.
9. PW-1 in his evidence says that suit schedule site No.43 is situated in Sy.No.241. Per contra, defendants contended that site no.43 is situated in Sy.No.241/1. But, there is no dispute regarding identification of the property by both parties and have led their evidence before this court. In order to establish prima facie title over the suit schedule property, plaintiff has produced original Sale Deed dated 10.06.1988 and original release deed at Ex.P2 and Ex.P.1 respectively. Ex.P1 and Ex.P.2 are marked without any objection. Ex.P1 and Ex.P.2 bear the seal and Judgement 8 O.S.No.2989/2014 signature of competent authorities hence, Ex.P1 and 2 are admissible in evidence. PW-2 is the attesting witness. PW-2 in his evidence has categorically stated that sale deed was executed by P.Krishna Reddy in favour of plaintiff's father and release deed was executed by plaintiff's mother and sisters in favour of the plaintiff herein and he is the attesting witness. Evidence of PW-2 is sufficient to prove the execution of Ex.P.1 and Ex.P.2. From the recitals of Ex.P.1 and Ex.P.2, it clearly goes to show that plaintiff's father has purchased the suit schedule property consisting of one square A.C. sheet roofed building for valuable consideration of Rs.20,000/- and acquired title over the suit schedule property. After the death of plaintiff's father, his wife and children have succeeded to the suit property and as per release deed plaintiff has succeeded to the suit property. Plaintiff has produced sufficient material evidence to prove his prima facie title over the suit property. In support of defendants' contention, the defendants have produced certified copy of Report and Order passed by Special Deputy Commissioner for Abolition of Inams, Bangalore, in Case No.122 at Ex.D7. From Ex.D7 It is pertinent to note that Hanumappa is registered as a kadim tenant under Section 4 of the Mysore (Personal and Miscellaneous) Inams Abolition Act. Further, the defendants have produced unregistered Partition Deed at Ex.D8. In the written statement, Judgement 9 O.S.No.2989/2014 the defendants contended that their father was allotted 13¼ land in Sy.No.241/1. Per contra, as per Ex.D8 i.e., Partition Deed, 33¾ land is allotted to defendants' father. Hence, averments in the written statement and Ex.D8 are contradictory to each other. No explanation is given by the defendants regarding said contradiction. No independent witnesses are examined to prove Ex.D8 i.e., Partition Deed. Hence, Ex.D8 is not helpful to the defendants. Ex.D9 is the mutation order. Said Ex.D9 doesn't pertain to Sy.No.241/1. Said Ex.D9 is not helpful to the defendants. The defendants have produced RTCs of Sy.No.241/1 at Ex.D20 to D26. From the said RTCs it goes to show that 3.15 acres is acquired by BDA. No explanation is given by the defendants regarding said entries in the RTCs. Said RTCs are contradictory to defendants' case. Ex.D20 to D26 are not helpful to the defendants. No evidence is produced by the defendants to show that their father retained the suit schedule site as contended in the written statement. The defendants have not produced any evidence to show that Smt.Lakshmamma inherited the suit schedule property as contended in the written statement. Ex.D1 is the Gift Deed. The defendants have not examined attesting witnesses to prove Ex.D1. Therefore, Ex.D1 cannot be relied upon.
Judgement 10 O.S.No.2989/2014
10. PW-1 in his evidence has stated that from the date of purchase, plaintiffs' father and his family members were in possession and enjoyment of the suit schedule property and residing in the said one square A.C. sheet roofed house. Further, has stated that said building was old and in order to meet the family requirements, existing old building was demolished and the plaintiff intended to put up new building and has dug trenches around the suit schedule property and constructed a sump in the suit schedule property and laid pillars around same and completed the lintel level of the building and the plaintiff is in possession of the suit schedule property. Per contra, DW-1 in his cross-examination has stated that suit schedule property is a vacant land and he is in possession of the suit schedule property.
11. In order to prove plaintiff's possession over the suit schedule property, the plaintiff examined one independent witness before this court as PW-2. PW-2 in his evidence has categorically stated that he introduced plaintiff's father to P.Krishna Reddy and plaintiff's father had purchased the suit schedule property and after purchase, plaintiff's father was in possession of the suit schedule property and subsequently, plaintiff is in possession and enjoyment of the suit schedule property. The evidence of PW-2 corroborates with plaintiff's case. Apart from oral evidence, the plaintiff has also produced State Judgement 11 O.S.No.2989/2014 Bank of India ID Card and Ration Card at Ex.P3 and P4. Said Ex.P3 and P4 are marked without any objections. The plaintiff has also produced tax paid receipt and Encumbrance Certificates at Ex.P7 to P12. Provisional National Apprenticeship Certificate, copy of gas connection receipt, Marks Card and Provisional National Trade Certificate of plaintiff's sister at Ex.P18 to P21. It is pertinent to note that, Ex.P3 and P4 have come into existence in the year 2004 and 2007 i.e., much prior to filing of the above suit. Similarly, letters produced at Ex.P5 and P6 and other documents namely Ex.P19 to P21 have come into existence at an undisputed point of time. The said documents clearly disclose that plaintiff's father was residing in the suit schedule property. The said documents establish possession of plaintiff's father over the suit schedule property. Further, the plaintiff has produced photographs of the suit schedule property at Ex.P13 to P16. From the photographs, it clearly goes to show that construction work is in progress in the suit schedule property. DW-1 in his cross-examination has denied the said photographs. It is pertinent to note that, in the above case Court Commissioner was appointed and Court Commissioner has filed his report before this court. The defendants have not filed any objection to the said Court Commissioner's Report. Therefore, Court Commissioner's Report can be relied upon by this court. From Court Judgement 12 O.S.No.2989/2014 Commissioner's Report, it clearly goes to show that at the suit schedule property foundation has been laid and iron pillars are built as contended by the plaintiff. Commissioner's Report and plaintiff's evidence corroborate each other. It is pertinent to note that, though DW-1 in his evidence says that defendants have revenue documents to show that the suit schedule property stands in their names. Per contra, the defendants have not produced the said documents before this court. Therefore, adverse inference has to be drawn against the defendants. DW-1 in his cross-examination admits that he doesn't have any documents to show his possession over the suit property. From the above admission it is clear that defendants are not residing in the suit property and defendants are not in possession of the suit schedule property. The defendants have produced tax paid receipts and encumbrance certificate at Ex.D11 to D19. It is pertinent to note that, the defendants have paid the taxes for the period from 2008-09 to 2014-15 on 01.03.2016. From Ex.D11 to D18 it discloses that on a single day the defendants have paid taxes and has filed the documents before this court. Ex.D11 to D18 have come into existence during the pendency of the above case. Therefore, Ex.D11 to D18 cannot be relied upon. Therefore, adverse inference has to be drawn against the defendants. The khatha and tax paid receipts produced by the plaintiff also Judgement 13 O.S.No.2989/2014 corroborates plaintiff's possession over the suit schedule property. The plaintiff has produced sufficient material evidence to prove his possession over the suit schedule property.
12. PWs.1 and 2 in their evidence have stated that on 10.04.2014 the defendants along with their men tried to interfere with plaintiff's possession and also threatened the plaintiff that they will dispossess the plaintiff from the suit schedule property. Further, they have stated that the plaintiff approached the police but, the police advised the plaintiff to approach the competent civil court. It is pertinent to note that, the defendants in their pleadings and evidence have denied plaintiff's title and possession over the suit schedule property. The contention taken by the defendants clearly goes to show that defendants have hostility towards the plaintiff. The evidence of PW-1 is sufficient to prove interference. In the light of the above discussion, I answer Issue Nos.1 and 2 in the Affirmative.
13. Issue No.3:-
The plaintiff has proved Issue Nos.1 and 2 hence, he is entitle for the relief of permanent injunction. Accordingly, I answer Issue No.3 in the Affirmative.
14. Issue No.4:-
In view of my above discussion, I proceed to pass the following:
Judgement 14 O.S.No.2989/2014 ORDER Suit of the plaintiff is decreed with costs. The defendants 1 and 2, their agents, servants, henchmen, workers or anybody acting under them or through them from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property or from putting up construction in the suit schedule property.
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 10th day of January 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 - Sri.Anthony Ugene PW.2 - Sri.M.Balakrishnan
(b) Defendants' side:
DW.1 - Sri.C.Nagaraja II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Original Registered Release Deed
dated 11.06.2012
Ex.P1(a) : Signature of PW-2
Judgement
15 O.S.No.2989/2014
Ex.P2 : Original Registered Sale Deed
dated 10.06.1988
Ex.P2(a) : Signature of PW-2
Ex.P3 : ID Card
Ex.P4 : Ration Card
Ex.P5 & 6 : Postal Cover and Inland Letter
Ex.P7 : Tax Paid Receipt
Ex.P8 to 12 : Encumbrance Certificates
Ex.P13 to 16 : 4 Photos
Ex.P13(a) to 16(a) : Negatives
Ex.P17 : Form B Property Register Extract
Ex.P18 : Provisional National Apprenticeship
Certificate
Ex.P19 : Notarized copy of Gas Book
Ex.P20 : Marks Card for Apprentices
Ex.P21 : Provisional National Trade
Certificate
(a) Defendants' side:
Ex.D1 : Original Gift Deed dated 22.08.2006
Ex.D2 : Death Certificate of Lakshmamma
Ex.D3 : Death Certificate of Chikka Abbaya
Reddy
Ex.D4 to 6 : Encumbrance Certificates
Ex.D7 : Certified copy of Order passed by
Special Deputy Commissioner for
Abolition of Inams, Bangalore
Ex.D8 : Original Unregistered Partition Deed
Ex.D9 : Mutation Register Extract
Ex.D10 : Endorsement
Ex.D11 to 18 : Tax Paid Receipts
Ex.D19 : Encumbrance Certificate
Ex.D20 to 26 : RTCs
XLII ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
Judgement