Bangalore District Court
Smt.V.R.Geetha Lakshmi vs Smt.H.Bhagya on 11 October, 2018
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.K.SUBRAMANYA, B.Com., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 11th day of October 2018.
O.S.No.3307/2017
PLAINTIFF : Smt.V.R.Geetha Lakshmi,
W/o.A.Ramaswamy Iyangar,
R/at.No.551, 6th Phase,
16th Cross, J.P.Nagar,
Bengaluru.
Represented by her P.A.Holder
Smt.Lakshmamma,
W/o.Late Thimmaiah,
68 years,
R/at.No.10, 2nd Main, 3rd Cross,
Chikkalakshmaiah Layout,
Hosur Road, Bengaluru.
[
(By Sri.I.A.K., Advocate)
.Vs.
DEFENDANT : Smt.H.Bhagya,
W/o.Krishnegowda,
60 years,
R/at.No.75, 9th Main Road,
Vyalikaval, Bengaluru.
(By Sri.Ananda, Advocate)
2 O.S.No.3307/2017
Date of institution of suit : 15.05.2017
Nature of Suit : Suit for permanent
injunction
Date of commencement of 10.01.2018
evidence :
Date on which the judgment 11.10.2018
is pronounced:
Duration taken for disposal : Year/s Month/s Day/s
01 04 26
(K.SUBRAMANYA)
LXVII Addl.City Civil and Sessions Judge,
BENGALURU.
JUDGMENT
The suit is filed under Order VII Rule 1 of C.P.C., for the relief of :-
a. Restraining the defendant or her agents, henchmen, legal representatives whomsoever claiming under the defendant by means of perpetual injunction from interfering with the peaceful possession and enjoyment of the schedule property ;
b. For grant such other relief as the court deem fit under the circumstances of the case with costs.
2. Brief facts of the case are as under :
The plaintiff is the absolute owner in possession and enjoyment of the suit schedule property. The plaintiff purchased the property under registered Sale Deed, dated:6.09.1995. The land bearing survey Nos.10/2 and 3 O.S.No.3307/2017 10/3 was belongs to one Bayyanna and after his death, his two sons namely Raaiah and B.Venkatesh inherited the aforesaid property and formed the layout. After the death of Ramaiah, his wife Smt.Savithramma and son Jagadeesh and B.Venkatesh sold the schedule property in favour of the plaintiff under Sale Deed. The plaintiff is paying taxes to the BBMP. All the documents are in the name of plaintiff. The plaintiff kept the house site vacant and intent to construct the house. The photographs are also produced. The plaintiff has executed the power of attorney in favour of Smt.Lakshmamma to prosecute the case.
On 9.05.2017, the defendant approached near the schedule property and threatened the plaintiff to dispose the schedule property alleging that the defendant is having certain documents for having purchased Site No.85 and schedule site No.85/A. Hence, this suit for resort illegal act of the defendant and her associates.
3. The defendant appeared through her counsel and filed written statement under Order VIII Rule 1 of C,P.C., and contended that the suit is not maintainable, s it is frivolous and vexatious suit. The plaintiff's name is used as fictitious person. The Sale Deed and power of attorney is also disputed. The plaintiff has played fraud and concocted the documents. The ownership of the plaintiff and possession is also denied. The defendant has contended that she has purchased the property bearing No.85 4 O.S.No.3307/2017 morefully mentioned by the plaintiff in the plaint schedule. The children of Bayyana viz., B.Ramaiah, B.Krishna Murthy and B.Venkatesh owners of the said property have executed the G.P.A., dated:16.08.1989 in favour of the defendant. It is stated that the defendant has paid full consideration. Therefore, sought for dismissal of the suit.
4. From the above pleadings, the following issues have been framed.
1. Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of filing of the suit ?
2. Whether the plaintiff further proves the alleged interference by the defendant ?
3. Whether the plaintiff is entitled for the relief of permanent injunction as sought for in the plaint ?
4. What Decree or Order ?
5. The plaintiff examined as P.W.1 and got marked the documents Exs.P.1 to 15. In defense, D.W.1 examined and Exs.D.1 to 3 marked.
6. Heard arguments of both the sides.
7. My findings to the above issues are as under:
ISSUE No.1 - In the Affirmative, ISSUE No.2 - In the Affirmative, 5 O.S.No.3307/2017 ISSUE No.3 - In the Affirmative, ISSUE No.4 - As per the final order, for the following :
REASONS
8. ISSUE Nos.1 TO 3 : Since all these issues are interconnected, they have been taken up together for my iscussion in order to avoid the repetition of reasonings.
P.W.1, the P.A.Holder of the plaintiff has filed affidavit under Order XVIII Rule 4 of C.P.C., and reiterated the facts stated in the plaint. It is contended that the schedule property was purchased by the plaintiff under registered Sale Deed, dated:6.09.1995 marked as Ex.P.1 The previous owners Smt.Savithramma and others have executed the Sale Deed assigning the right, title, interest and possession to the plaintiff. It is also clearly asserted that the entire land in survey No.10/2 and 10/3 belongs to Bayyanna and after his death, the same was succeeded by his sons namely Ramaiah and Venkatesh and they have formed the layout and sold the sites of different dimension.
9. The plaintiff is paying the taxes and all the documents are in the name of plaintiff and the same is evidenced as per 'P' series tax paid receipts, Encumbrance Certificate, photographs, C.D., copy of complaint and G.P.A., is also marked. The authenticated documents relied by the plaintiff having sufficient reliability as per 6 O.S.No.3307/2017 Sections 62 and 65 of Evidence Act. The primary documentary evidence is quite appreciable in view of compliance of Section 17 of Karnataka Registration Act and Stamp Act, as it is in accordance with the procedure contemplated under the statute. The Sale Deed is of 1995 and the continuity of katha and other documents tax paid receipts show the name of plaintiff as owner and paying the taxes. This shows the possession of the plaintiff with the schedule property. The photograph is also clear that the place is vacant as contended by the plaintiff and the plaintiff intending to construct the house. In the cross examination of P.W.1, it is suggested that site bearing No.85 belongs to the defendant, but the witness stated that site No.85-A belongs to the plaintiff. Therefore, the schedule site claimed by the defendant is quite different and it is abutting to each other is forthcoming while argument.
10. It is also the case of the defendant that she being the power of attorney holder of Ramaiah, Krishnaiah and Venkatesh entitled to the property bearing Site No.85. Therefore, it is quite different from the portion of the property claimed by the plaintiff as Site No.85-A. Therefore, the defendant claimed under G.P.A., dated:16.08.1989 is not justified. It is not a registered document and it does not assigned any right, title and interest over the property to the G.P.A.Holder. It is also 7 O.S.No.3307/2017 pertinent to note that the defendant has not stated that it is irrevocable power of attorney and it has been acted upon. Further more, the executants of power of attorney were died and after the death, the power of attorney does not survive conferring any right to the G.P.A.Holder. It is also clear that apart from the G.P.A., the defendant has no other document authenticating the right, title and interest over the schedule site No.85 as mentioned in Ex.D.1-G.P.a. Therefore, the apparent interference to the possession of the plaintiff's property is not justified.
11. It is also admitted in the cross examination of D.W.1 that she has not paid any tax and the documents are not produced authenticating the possession. To prove the existence of house, no house documents are produced is also admitted in the cross examination. Therefore, the admitted evidence could be safely relied under Sections 17 and 18 of Evidence Act. It is also admitted that the power of attorney depicted in Ex.D.1 and affidavit Ex.D.2 pertains to site No.85. It is also admitted as true that the plaintiff's property is Site No.85-A. Therefore, the contention of the defense claiming plaintiff's property as if it is property belongs to the executants of the power of attorney of the defendant is not in any way appreciable. The boundaries of the plaintiff's property is quite different from the property of the defendant is admitted in the cross examination of D.W.1. It is also admitted that the photographs Exs.P.8 to 8 O.S.No.3307/2017 10 shows the plaint schedule. Therefore, the unequivocal admission by D.W.1 is clearly goes against the defense. The preponderance of probabilities of the case establishes the possession and consequential interference by the defendant. Therefore, the plaintiff proves and establishes the possession and illegal act of interference made by the defendant. Section 38 of Specific Relief Act provides for granting injunction in favour of the plaintiff to prevent the breach of obligation existing in his favour. Hence, I answer the Issue Nos.1 to 3 in the Affirmative.
12. ISSUE No.4: My finding on this Issue is as per the following :
ORDER The suit of the plaintiff is hereby decreed with costs. The defendant or her agents, henchmen, legal representatives whomsoever claiming under the defendant are hereby permanently restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
Draw decree accordingly.
(Dictated to the Judgment-writer, transcript thereof is corrected and then pronounced by me in the open court on this the 11th day of October 2018) (K.SUBRAMANYA) LXVII Addl.City Civil and Sessions Judge, BENGALURU.9 O.S.No.3307/2017
SCHEDULE All that piece and parcel of the land bearing No.85/A, Katha No.10/2 and 10/3, now presently BBMP No.10/2, 10/3/85/A situate at Uttarahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, measuring East to West:40 feet and North to South: 35 feet, bounded on :
East by : Property belonging to M.Ramaiah West by : 20 Feet Road North by : Property belonging to B.Ramaiah, South by : Site No.85 ANNEXURE
1. WITNESSES EXAMINED IN FAVOUR OF THE PLAINTIFF:
P.W.1 Lakshmamma
2. WITNESSES EXAMINED IN FAVOUR OF THE DEFENDANT :
D.W.1 Bhagya H.
3. DOCUMENTS MARKED IN FAVOUR OF THE PLAINTIFF:
Ex.P.1 Original Sale Deed
Exs.P.2 to 5 Tax Paid Receipts
Exs.P.6 & 7 Encumbrance Certificates
Exs.P.8 to 10 Photographs
Ex.P.11 Photo studio receipt
Ex.P.12 C.D.
Ex.P.13 Copy of complaint
Ex.P.14 General Power of Attorney
Ex.P.15 Copy of original Sale Deed
10 O.S.No.3307/2017
4. DOCUMENTS MARKED IN FAVOUR OF THE DEFENDANTS :
Ex.D.1 G.P.A., dated:16.08.1989
Ex.D.2 Affidavit
Ex.D.3 Encumbrance Certificate Extract
(K.SUBRAMANYA)
LXVII Addl.City Civil and Sessions Judge, BENGALURU.Digitally signed by KRISHNAMURTH Y SUBRAMANYA DN: cn=KRISHNAMUR
KRISHNAMURTHY THY SUBRAMANYA SUBRAMANYA,o= GOVERNMENT OF KARNATAKA,st=K arnataka,c=IN Date: 2018.10.12 13:20:18 IST