Bangalore District Court
Smt. Shivamma vs Smt.Jayamma on 1 August, 2017
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF XXXIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU CITY.
CCH 33
PRESENT:
Sri. D.Y. BASAPUR, B.Com., LL.B (Spl.)
XXXIII ADDL. CITY CIVIL AND SESSIONS
JUDGE BENGALURU.
DATED: THIS THE 1ST DAY OF AUGUST, 2017
O.S.No.434/2017
Plaintiff : Smt. Shivamma, 50 years, W/o.late
Revanna, R/at.No.572, 1st Cross,
NGES colony, Kamalanagar,
Bangalore -79.
(Rep. by Sri NM, Advocate.)
V/S.
Defendant: : Smt.Jayamma, 67 years,
W/o.Sri R Rajanna, No.630, 1st
Cross, 4th Main road, Kamalanagar,
Bangalore -79.
(Rep. by Sri RJ, Advocate.)
Date of Institution of the suit: 17.1.2017
Nature of the Suit (Suit for
pronote, suit for declaration
and possession, Suit for Injunction
injunction, etc,) :
Date of the commencement 12.6.2017
2
of recording of the Evidence:
Date on which the Judgment 01.08.2017
was pronounced:
Total Duration : Year/s Month/s Day/s
- 06 14
(D.Y. BASAPUR)
XXXIII ADDL. CITY CIVIL & SESSIONS
JUDGE
BANGALORE.
JUDGMENT
Plaintiff has filed suit for injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property.
2. Brief facts of the plaint are as under:
Schedule property is northern half portion of site bearing No.572, measuring 40 x 15 feet, in survey No.46 of Saneguruvanahalli village, Yeshwanthapur Hobli, Bangalore. The said site allotted on the occasion of 28th Annual CCH-33 3 OS.434/17 Independence Day celebrations to the weaker sections in favour of Smt.Chinnamma. The said Chinnmma sold the entire site bearing No.572 in favour of defendant and put her in possession by executing an agreement of sale, notarized GPA and affidavit dated 27.2.1988. Defendant sold the northern half portion of site No.572 measuring 40 x 15 feet in favour of plaintiff and put her in possession by executing GPA, sale consideration receipt, possession certificate dated 13.4.1989. Plaintiff has constructed 200 square feet building in the site. Subsequently, schedule property included in the jurisdiction of BBMP and BBMP has issued the Holder Khatha of the schedule property. She paid taxes regularly. The plaintiff is residing in the schedule property and obtained ration card, election ID card, LP Gas. Defendant having sold the schedule property has lost her right, title and possession over the schedule property. Plaintiff is intending to demolish the old building and put up new construction on 11.1.2017 and performed Bhoomi Pooja. Defendant made attempts to tress pass and interfere with the peaceful possession and enjoyment of the schedule property. Hence, filed this suit. 4
3. In pursuance of service of summons, Defendant appeared through her counsel and filed written statement.
4. Brief facts of the written statement filed by defendant is as under:
The defendant denied the various allegations made in the plaint averments. She has contended that schedule property is a vacant land, the plaintiff cannot maintain bear injunction suit. Plaintiff has already suffered permanent injunction under judgment and decree in OS.No.4486/2001. There is no bifurcation of site No.572. Defendant acquired title from Chinnamma. Defendant never executed the documents in favour of plaintiff. No delivery of possession of schedule property taken place by the plaintiff. She is not in possession of the same. Plaintiff concocted the documents. The question of interference does not arise. No cause of action arose. Hence, prays for dismissal of the suit.
CCH-33 5 OS.434/17
5. On the basis of above pleadings, following issues are framed:-
ISSUES
1. Whether the plaintiff proves that she is in lawful possession and enjoyment of the suit property?
2. Whether the plaintiff proves that alleged interference by the defendant?
3. Whether the plaintiff is entitled for the relief as sought for?
4. What order or decree?
6. To prove the case of the plaintiff herself got examined as P.W.1 and got marked the documents Exs.P.1 to P.27. On behalf of the defendant, GPA holder Sri Shiva Kumar examined as D.W.1 and got marked documents Ex.D1 to D26.
7. Heard the arguments on both sides.
8. My findings on the above issues are as under: 6
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: See the final order, for the following:
REASONS
9. Issue No.1 to 3: All these Issues are interlinked to each other. Hence, taken up together for consideration in order to avoid repetition of facts.
10. Learned counsel for the plaintiff argued that as per the evidence of P.W.1 and documents Ex.P1 to P27, plaintiff has proved her possession. Counsel for the defendant argued that without seeking relief for declaration, suit is not maintainable.
11. On careful perusal of the material placed before the court, P.W.1 has filed affidavit in lieu of her chief examination and reiterated the contents of the plaint averments. She has stated that she purchased the schedule property from CCH-33 7 OS.434/17 defendant by executing GPA, sale consideration and possession certificate dated 13.4.1989. She constructed 200 sq. feet building on the site. Since then she is in possession and enjoyment of the schedule property. Defendant is trying to interfere with the peaceful possession and enjoyment of the schedule property.
12. Per contra, GPA holder of the defendant got examined as D.W.1 has also filed affidavit in lieu of his chief examination and reiterated the contents of the written statement. D.W.1 has denied that defendant entered into agreement of sale, executed affidavit or possession certificate. Further deposed that plaintiff is never in possession of the schedule property. Defendant purchased the schedule property from Chinnamma through registered sale deed and she is in entire possession of the schedule property. Further, D.W.1 has stated that vendor of the defendant filed suit in OS No.4486/2001 against the plaintiff and her husband. Same came to be decreed. Plaintiff did not hand over the possession. Then filed Execution petition in Ex.No.1046/2007 and 8 physical possession is handed over to the vendor of the defendant.
13. In order to prove the possession of the plaintiff, she has produced Ex.P1 notarized copy of GPA, Ex.P2 possession certificate and consideration receipt dated 13.4.1989 which reveal that defendant appear to be entered into sale of schedule property to plaintiff and put her in possession. Ex.P3 Katha extract stands in the name of plaintiff as an occupant. Ex.P4 and P5 holder Katha certificates also stand in the name of plaintiff. Ex.P6 to P8 tax paid receipts reveal that plaintiff paid the taxes for the year 2006-07. Ex.P9 and 10 voters ID of plaintiff and her husband reveal that plaintiff was residing in the schedule property. Ex.P11 to 13 gas connection bills, Ex.P14 to 20 electricity bills, Ex.P21 and P22 KEB receipts, Ex.P23 and P24 postal covers reveal that plaintiff was in possession and enjoyment of the schedule property. Ex.P25 and P26 photos and Ex.P27 CD reveal that schedule property is an open site in which plaintiff is standing in the schedule property.
CCH-33 9 OS.434/17
14. In the cross examination, P.W.1 admitted Hakkupatra issued in favour of Chinnamma in the year 1972 and denied that defendant had no right to execute GPA. However, P.W.1 admitted that defendant purchased the schedule property from Chinnamma in the year 1988. She denied that since 1990 she is residing at house No.437, 1st Main road, 11th cross, Kamalanagar. Again admitted that she is residing in the said house No.437 since 2017. Admittedly on the date of filing of the suit, schedule property is an open site and plaintiff was residing in house No.437. Election ID cards of plaintiff and her husband are admitted by P.W.1 and confronted as Ex.D1 and D2. Both election ID cards are issued on 3.3.2017 and it reveal that plaintiff and her husband are residing in the house No.437.
15. P.W.1 admitted that Chinnamma filed suit against her husband and herself in OS.No.4486/2001 and the same came to be decreed and execution petition No.1046/2007 filed. But denied that through execution, schedule property handed over to Chinnamma on 5.1.2008. She shows her ignorance 10 that whether her husband was present at the time of handing over the schedule property to Chinnamma. P.W.1 denied the sale deed and rectification sale deed executed in favour of defendant by Chinnamma in the year 2008.
16. In the cross examination of D.W.1 denied that defendant filed OS.6816/1991 against Chinnamma and same is dismissed. RFA No.791/1996 filed by her also came to be dismissed and admitted that Chinnamma filed execution petition No.1046/2007 against plaintiff through GPA Savithramma and further D.W.1 shows his ignorance that Chinnamma filed suit in OS No.4486/2001 against the plaintiff. D.W.1 admits that in Ex.D10 sale deed, suit in OS.No.4486/2001 filed by Chinnamma is not mentioned. Thus, it is crystal clear that plaintiff admitted that OS.No.4486/2001 and execution filed by Chinnamma against her and her husband as per Ex.D5, D6 and D7.
CCH-33 11 OS.434/17
17. In the cross examination of D.W.1 it is specifically suggested by the counsel for plaintiff in respect of suit filed by Chinnamma against plaintiff. Ex.D8 spot mahazar drawn by court Bailiff at the time of handing over the schedule property to Chinnamma as per decree. Ex.D9 possession certificate is also court document. These documents are not disputed. Ex.D4 Hakkupatra issued in favour of Chinnamma is also not disputed. Ex.D10 sale deed and Ex.P11 rectification deed executed by Chinnamma in favour of defendant. Ex.D12 and 13 encumbrance certificates, Ex.D14 Uttarapatra, Ex.D15 order copy of BBMP, Ex.P16 and 17 Katha certificate and Katha extract also stands in the name of defendant through sale deed. Ex.D18 to 21 tax paid receipts, Ex.D22 to 25 photos and Ex.D26 CD reveal that defendant is in possession of the schedule property.
18. From the above, it can be gathered that plaintiff has not pleaded either in plaint or in her affidavit in respect of suit and execution petition filed by Chinnamma against her and her husband. Even after filing written statement and 12 specifically raised the contention regarding suit decreed against plaintiff, she has not whispered a single word regarding suit decreed against her. Except suggestion put to D.W.1 by counsel for plaintiff regarding suit and execution filed by Chinnamma, plaintiff has neither pleaded nor deposed regarding the suit.
19. During the course of arguments, counsel for plaintiff filed memo with 3 documents regarding certified copy of the judgment and decree passed in OS.No.6816/1991 and order copy of RFA No.791/1996 which came to be rejected. Of course, defendant has not disclosed in her written statement regarding OS.No.6816/1991 and RFA No.791/1996 filed by her came to be dismissed. Any how, defendant is not seeking any relief. It is well settled law that plaintiff is not entitled for the relief on the weakness of the defendant. Specific case of the plaintiff is that defendant entered into agreement of sale to sell the schedule property and executed GPA and possession certificate as per Ex.P1 and P2. Admittedly defendant purchased the schedule property as per Ex.D10 from CCH-33 13 OS.434/17 Chinnamma in the year 2008. At the time of execution of Ex.P1 and P2, defendant was not at all owner of the schedule property. It is specific case of the plaintiff that defendant purchased the entire site from Chinnamma, subsequently sold northern portion to the plaintiff. It is not the case of the plaintiff that after execution of Ex.D10 sale deed in favour of defendant, she purchased the schedule property. Moreover, as per decree against the plaintiff in the suit filed by Chinnamma and possession is handed over as per mahazar and Swadina patra to Chinnamma. Once possession is legally handed over in the execution petition from the possession of plaintiff, it is presumed that Chinnamma is in possession of the schedule property. Plaintiff has not placed any material to show that after handing over the possession she put into possession of the schedule property. Even if she has not disclosed the original suit and execution petition filed against her, all the documents filed by the plaintiff are pertaining to much earlier to the filing of the suit. As on the date of filing of the suit, no document produced to show that she is in possession and enjoyment of the schedule property.
14
20. Of course, defendant has also not disclosed the suit filed against Chinnamma. Any how, Original suit and RFA rejected against the defendant is earlier to the sale deed executed by Chinnamma in the year 2008.
21. Learned counsel for the defendant argued that when title of the schedule property itself is seriously disputed by the defendant, suit for bare injunction is not maintainable. He relied on a decision reported in 1994(3) Kar.L.J.529 between B.P.Sadashivaiah Vs., Parvathamma and others wherein it is held that:-
CPC, 1908 - permanent injunction - where title of property under challenge - suit for mere injunction without praying for declaration of title - not maintainable. The facts and circumstances of the above decision is similar to the case on hand.
CCH-33 15 OS.434/17
22. For the above, the suit of the plaintiff is not maintainable without seeking relief for declaration. Thus, plaintiff has failed to prove her possession and alleged interference, thereby she is not entitled for the relief as sought for. Hence, I answer Issue No1 to 3 in the negative.
23. Issue No.6: In the result, I pass the following:-
ORDER The suit filed by the plaintiff U/O.7 Rules 1 and 2 of CPC is hereby dismissed.
No order as to cost.
[Dictated to the stenographer, transcribed and computerised by her, corrected, signed and then pronounced by me in Open Court on this the 1st day of August 2017.] (D.Y.BASAPUR) XXXIII ADDL. CITY CIVIL JUDGE, BANGALORE CITY.
16ANNEXURE
1. List of witnesses examined for the:
(a) Plaintiff:
P.W.1 Smt.Shivamma (b) Defendant : D.W.1 : Sri Shivakumar
2. List of documents exhibited for the:
(a) Plaintiff:
Ex.P.1 : GPA
Ex.P.2 : Possession certificate (consideration receipt)
Ex.P.3 : Katha extract
Ex.P.4 : Katha certificate
Ex.P.5 : Katha extract
Ex.P.6-8 : Tax paid receipts
Ex.P.9 : Election ID card
Ex.P.10 : Election ID card
Ex.P.11-13 : Gas bills
Ex.P.14-20 : Electricity bills
Ex.P.21-22 : Electricity receipts
Ex.P.23-24 : Postal receipts
Ex.P.25-26 : Photos
Ex.P.27 : CD
(b) Defendants:
Ex.D.1 : Voter ID card
Ex.D.2 : Voter ID card
Ex.D3 : GPA
Ex.D.4 : Hakkupatra
CCH-33
17 OS.434/17
Ex.D.5 : Judgment and decree OS 4486/01
Ex.D.6 : Order sheet Ex.1046/07
Ex.D.7 : Memo in Ex.1046/07
Ex.D.8 : Mahazar in Ex.1046/07
Ex.D9 : Delivery warrant
Ex.D10 : Sale deed
Ex.D11 : Rectification deed
Ex.D12 : Encumbrance certificate
Ex.D13 : Encumbrance certificate
Ex.D14 : Uttarapatra
Ex.D15 : Order copy
Ex.D16 : Katha certificate
Ex.D17 : Katha extract
Ex.D18-21 : Tax paid receipts
Ex.D22-25 : Photos
Ex.D26 : CD
(D.Y. BASAPUR)
XXXIII ACC & SJ & SPL.JUDGE (NDPS)
BANGALORE.
CN/*