Bangalore District Court
Ramesh Kumar B. Vijan vs Shri Ramalingeshwara on 21 January, 2021
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 21st day of January, 2021.
PRESENT:
Sri MALLANAGOUDA, B.Com.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.6327/2018
PLAINTIFF : Ramesh Kumar B. Vijan,
S/o. Late Biharilal Vijan,
Aged about 62 years,
No.6, 4th Floor, Flat No.114,
Sector 28, Vashi, Navi
Mumbai - 400 705.
(By Sri S.F. Goutam Chand,
Advocate)
-VERSUS-
DEFENDANTS : 1. Shri Ramalingeshwara
Mutt, Haranahalli,
Shimogga district - 577
416, Corresponding Office
at No.92/10, 12 'C' Main,
6th Block, Rajajinagar,
Bengaluru - 560 010,
represented by
Muttadipathi Sri
Sha//Bra//Chandramoule
shwara Shivacharya
Swamiji, Aged about 43
years, Matadhipathi of Sri
Ramalingeshwara Mutt.
Cont'd..
-2- O.S. No.6327/2018
2. VishhwanathKumaarr,
Aged about 41 years,
S/o. M. Raju,
No.1, 3rd Floor, S.L.N.
Embrald, Nagashettyhalli
Main Road, R.M.V. 2nd
Stage, Bangalore - 560 094.
(Defendants : Placed ex-parte)
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Date of Institution of the Suit : 30-08-2018
Nature of the Suit (Suit on : Injunction suit.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 03-03-2020
of recording of the evidence
Date on which the Judgment : 21-01-2021
was pronounced
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Year/s Month/s Day/s
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Total duration : 2 years, 4 months, 21 days.
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(MALLANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENT
This suit is filed by the plaintiff seeking permanent injunction to restrain defendants 1 and 2 from interfering with plaintiff's possession over the suit schedule property and to restrain defendant No.1 from Cont'd..
-3- O.S. No.6327/2018 executing the sale deed in respect of the suit property in favour of defendant No.2 as per the agreement for sale dated 13.8.2018 and restraining defendants from creating any encumbrance on the suit property.
2. The brief facts of the plaintiff's case are as under -
Plaintiff and his brother Sudhir Kumar B. Vijan are the absolute owners in possession of the suit schedule property measuring 2 acre 03 guntas -plus- 00-06 guntas Kharab in Survey No.8/1 of Nagasandra village, Yashavanthapura hobli, Bengaluru North taluk. Plaintiff's father viz., late Biharilal Loundimal Vijan purchased 3-00 acres of land in Survey No.8 of Nagasandra village vide sale deed dated 19.11.1962 and the deed of correction dated 19.12.1966. Entire Survey No.8 of Nagasandra village was measuring 10 acres 23 guntas. Same has been phoded into three parts i.e., Survey Nos.8/1, 8/2 and 8/3 measuring 6 acres 38 guntas, 1 acres 22 guntas and 2 acres 03 guntas respectively. Father of the plaintiff has died on 18.3.1989. After his death, plaintiff and his brother Cont'd..
-4- O.S. No.6327/2018 have succeeded to his estate. As the plaintiff's brother is in Mumbai, plaintiff is taking care of the suit property on behalf of his brother as well.
First defendant viz., Sri Ramalingeshwara Mutt represented by its alleged Mathadhipathi Shivayogeswara Shivacharya Swamygalu had clandestinely got an ex-parte order dated 2.11.2001 passed in RRT(2)CR/16/2001-02 for effecting Khata of the land bearing Survey No.8 to an extent of 10 acres 23 gunmtas of Nagasandra village, Yashavanthapura hobli, Bengaluru North taluk. The said order was challenged by the plaintiff and his brother in Writ Petition No.3993/2002 - in which, vide order dated 30.1.2003, Hon'ble High Court has set aside the order dated 2.11.2001 and remanded the matter for fresh disposal. Thereafter, as per the directions of the Hon'ble High Court, the Special Deputy Commissioner of Bengaluru district has passed order dated 20.5.2004 dismissing the claim of Ramalingeshwara Math - which was represented by three different Swamys. Present defendant No.1 was the respondent No.13 in the said Cont'd..
-5- O.S. No.6327/2018 matter. By the said order, the Special Deputy
Commissioner has refused to cancel the R.T.C. entries in the names of the existing Khatedars. Therefore, the Khata in respect of 3-00 acres of land in Survey No.8/1 of Nagasandra village was re-transferred into the name of the plaintiff and his brother. Out of 3-00 acres of the land owned by the plaintiff and his brother, after acquisition of certain extent of land by the National Highways Authority for widening NH-4, remaining extent of 2 acres 09 guntas is the suit schedule property in the present suit. Plaintiff and his brother have got the said 2 acres 03 guntas land converted for non-agricultural commercial purpose and now, plaintiff has covered the suit property with zink sheets and hired security guards to keep watch on the property for the last seven years. Further, Sri Ramalingeshwara Math - defendant No.1 herein - represented by alleged Mathadhipathi Shivayogishwara Shivacharya Mahaswamigalu has filed a suit in O.S. No.3675/2012 for the relief of possession of land measuring 6 acres 38 guntas in Survey No.8/1. Present plaintiff is defendant No.4 in the said suit and his brother is defendant No.5 Cont'd..
-6- O.S. No.6327/2018 in the said suit. Till now, there is no order passed in favour of Sri Ramalingeshwara Math. Further, one Sri Neelakantha Saranga Desikendra Mahaswamygalu, in collusion with certain autorities, have illegally got the name of Ramalingeshwara Math in the RTC pertaining to the entire extent of 6 acres 38 guntas of land in Survey No.8/1 of Nagasandra village vide order dated 18.8.2016 of the Assistant Commissioner. The said order has been passed by placing all the respondents therein as ex-parte by suppressing the order dated 20.5.2004 passed by the Special Deputy Commissioner. As against the order of the Assistant Commissioner, plaintiff and his brother have filed appeal before the Deputy Commissioner, Bengaluru - which is still pending and the Deputy Commissioner has stayed the said order of the Assistant Commissioner. In the mean while, one of the alleged representatives/General Power of Attorney holders of the defendant No.1 viz., Ramachandran Sami @ Ramachandra Swamy has interfered with the plaintiff's possession over the suit schedule property - for which, plaintiff has lodged a police complaint and filed O.S. No.4484/2018 - which Cont'd..
-7- O.S. No.6327/2018 is also pending. Now, on account of the order dated 18.8.2016 passed by the Assistant Commissioner, the entire extent of 6 acres 38 guntas in Survey No.8/1 of Nagasandra village is now standing in the name of defendant No.1 Ramalingeshwara Math. By taking advantage of transfer of Khata in its name, now the first defendant has entered into an agreement for sale dated 8.8.2018 with defendant No.2 Vishwanath Kumaarr pertaining to the entire extent of 6 acres 38 guntas in Survey No.8/1. In fact, defendant No.1 has no title to the schedule property and has never been in possession of the suit property. Hence, execution of the said agreement for sale in favour of defendant No.2 amounts to interference with the possession of the plaintiff over the suit property. In fact, said defendant No.1 Sri Ramalingeshwara Math has never been in existence. In fact, the same was decided way back in the year 1970 itself in O.S. No.84/1970 filed by none other than defendant No.1 viz., Shri Ramalingeshwara Math. Again in O.S. No.5300/1980, non-existence of Ramalingeshwara Math was reiterated. Hence, the judgment and decree rendered in O.S. No.84/1970 has Cont'd..
-8- O.S. No.6327/2018 attained finality and no appeal has been filed against the said judgment in O.S. No.84/1970. Now, on the strength of the agreement for sale dated 8.8.2018, second defendant is trying to interfere with plaintiff's possession over the suit schedule property. On 18.8.2018, defendant No.2 and few other persons who are claiming to be the representatives of defendant No.1 came near the suit property and trespassed into the same. However, watchmen employed by the plaintiff prevented those persons from interfering with plaintiff's possession over the suit schedule property. Plaintiff and his brother are not the parties to the said agreement for sale executed in favour of the second defendant. The persons who are parties to the said agreement for sale have no manner of right, title, interest or possession over the suit property. The said agreement is created only for the purpose of knocking away the suit property. First defendant - Ramalingeshwara Math represented by its alleged Mathadhipathi - Shivayogishwara Shivacharya Mahaswamygalu has filed O.S. No.3675/2012 for the relief of possession and the present plaintiff has filed Cont'd..
-9- O.S. No.6327/2018 O.S. No.4484/2018 against one Ramachandra Swamy @ Ramachandran Sami for the relief of permanent injunction. Further, plaintiff has learnt that on 27.8.2018, another suit in O.S. No.6132/2017 has been filed against him, but the summons have not been served till now - which shows that several unscrupulous persons in the name of non-existing defendant Math are trying to knock off the suit property by creating fraudulent and spurious documents. Hence, plaintiff is constrained to file the present suit for permanent injunction. Therefore, plaintiff has requested for granting decree of permanent injunction.
3. After service of summons, defendants 1 and 2 are placed ex-parte.
4. On the basis of the above facts, the following Points arise for my consideration -
(1) Whether the plaintiff proves that he is the owner in possession of the suit schedule property along with his brother?
(2) Whether the plaintiff proves interference of the defendants 1 Cont'd..
-10- O.S. No.6327/2018
and 2 with the plaintiff's
possession over the suit
schedule property as alleged in
the plaint?
(3) Whether the plaintiff is entitled for the relief of permanent injunction as claimed?
(4) What decree or order?
5. In support of the plaintiff's case, plaintiff himself examined as P.W.1 and got marked documents at Exs.P.1 to P.20 on behalf of the plaintiff.
6. Heard arguments.
7. My findings on the above Points are as under -
POINT No.1 - Affirmative;
POINT No.2 - Affirmative;
POINT No.3 - Affirmative;
POINT No.4 - As per final order, for the following -
Cont'd..
-11- O.S. No.6327/2018
REASONS
8. POINT Nos.1 TO 3 : Since all these Points are inter-related with each other, they are being taken up together for discussion at a stretch in order to avoid repetition of facts.
9. It is the case of the plaintiff that plaintiff's father viz., Biharilal Loundimal Vijan had purchased 3- 00 acres of land in Survey No.8 of Nagasandra village vide sale deed dated 19.11.1962; now, after acquisition of portion of the said land, an area measuring 2 acres 03 guntas including 00-06 guntas Kharab is remaining; after death of plaintiff's father, now plaintiff and his brother have become owners of the suit schedule property and they are in possession of the same; defendant No.1, claiming to be Sri Ramalingeshwara Math represented by its alleged Mathadhipathi viz., Shivayogeshwara Shivacharya Swamygalu had obtained an ex-parte order dated 2.11.2001 passed in RRT(2)CR/16/2001-02 in respect of entire 10 acres 23 guntas of Survey No.8 of Nagasandra village; but, vide order passed in Writ Petition No.3993/2002 dated Cont'd..
-12- O.S. No.6327/2018 30.1.2003, the said order was set aside and the matter was remanded back to the Deputy Commissioner; even after the remand, the Special Deputy Commissioner has passed an order dated 20.5.2004 dismissing the claim of Ramalingeshwara Math over the suit land; but, after the said order of the Deputy Commissioner, in collusion with certain authorities, one Sri Neelakantha Saranga Deshikendra Mahaswamygalu of Ramalingeshwara Math got another order passed by the Assistant Commissioner dated 18.8.2016 and got 6 acres 38 guntas in Survey No.8/1 of Nagasandra village mutated in the name of the first defendant; challenging the said order of the Assistant Commissioner, the present plaintiff and his brother have filed an appeal before the Deputy Commissioner; the Deputy Commissioner has stayed the order of the Assistant Commissioner; in spite of it, the defendants are trying to interfere with the plaintiff's possession over the suit schedule property and defendant No.1 executed agreement for sale dated 8.8.2018 in favour of the second defendant to sell 6 acres 38 guntas of Survey No.8/1; therefore, plaintiff has filed the present suit seeking permanent injunction Cont'd..
-13- O.S. No.6327/2018 to restrain defendants 1 and 2 from interfering with his possession over the suit property and to restrain defendant No.1 from executing the sale deed in favour of defendant No.2 as per the agreement and restrain the defendants from creating any third-party rights over the suit property.
10. Plaintiff filed his chief-examination affidavit - in which, he once again reiterated the facts alleged in the plaint as discussed above. Plaintiff got marked as many as 20 documents as per Exs.P.1 to P.20. Exs.P.1 and P.2 are the Records of Right in respect of Survey No.8 measuring 10 acres 23 guntas of Nagasandra village for the years 1966-67 to 1973-74 - in which, name of Biharilal Loundimal Vijan is mentioned as 'cultivator' of 3-00 acres in the said Survey number. Exs.P.3 to P.5 are the Records of Right pertaining to Survey No.8/1 measuring 6 acres 38 guntas of Nagasandra village for the years 1983-84 to 2015-16 - in which, name of the plaintiff's father Biharilal Loundimal Vijan is mentioned as 'cultivator' of 3 acres till the year 1987-88. After that, names of plaintiff No.1 Cont'd..
-14- O.S. No.6327/2018 and his brother are mentioned as 'cultivators' of the said land. Ex.P.6 is certified copy of the order of the Deputy Commissioner dated 29.9.2010 - under which, permission was granted to the plaintiff and his brother for conversion of 2 acres 03 guntas in Survey No.8/1 for non-agricultural purpose. Ex.P.7 is the plaint in O.S. No.3675/2012 seeking possession of Survey No.8/1 measuring 6 acres 38 guntas of Nagasandra village filed by Sri Ramalingeshwara Math represented by its Mathadhipathi Shivayogeshwara Shivacharya Swamygalu and filed by one Ramachandra Swamy as General Power of Attorney holder of the Math. Ex.P.8 is the copy of the order passed by the Assistant Commissioner in R.A. (BNA)15/2015-16 for mutation of name of Sri Ramalingeshwara Math to land Survey No.8/1 measuring 10 acres 23 guntas. Ex.P.9 is the copy of the order sheet in R.P. No.405/2016-17 on the file of the Deputy Commissioner, Bengaluru filed by the present plaintiff and his brother - in which, by order dated 20.2.2017, the Deputy Commissioner has stayed the order of the Assistant Commissioner marked as per Ex.P.9. Ex.P.10 is the agreement for sale allegedly Cont'd..
-15- O.S. No.6327/2018 executed by the defendant No.1 in favour of defendant No.2 in respect of 6 acres 38 guntas in Survey No.8/1 of Nagasandra village. Ex.P.11 is the copy of the order on I.A. No.I in O.S. No.4484/2018 on the file of the XLIV Additional City Civil Judge (CH-45), Bengaluru - in which, temporary injunction has been granted against Ramachandra Swamy @ Ramachandra Sami in the suit filed by the present plaintiff. Ex.P.12 is the order passed by the Special Deputy Commissioner dated 30.6.1990 with regard to compensation in respect of the land acquired for widening of NH-4. Exs.P.13 to P.15 are some documents regarding payment of compensation - which show that certain compensation has been paid to the plaintiff and his brother for acquisition of land in Survey No.8 of Nagasandra village. Ex.P.16 is the copy of the judgment passed in O.S. No.5300/1980 - in which, suit filed by Ramalingeshwara Math against Bangalore City Corporation with regard to some other property came to be dismissed. Ex.P.17 is the copy of the sale deed - under which, the plaintiff's father has purchased the land in Survey No.8. Ex.P.19 is the copy of the order Cont'd..
-16- O.S. No.6327/2018 dated 20.5.2004 passed by the Special Deputy
Commissioner, Bengaluru - in which, the Deputy Commissioner has directed the parties to the proceedings to approach competent Civil Court and order for continuation of R.T.C. entries in the names of the Khatedars. Ex.P.20 is the R.T.C. in respect of Survey No.8/1 measuring 6 acres 38 guntas of Nagasandra village for the years 2017-18 - which shows that name of Ramalingeshwara Math is mentioned as 'owner' and 'occupant' of the said land.
11. On perusal of all the above referred documents produced by the plaintiff, it appears that plaintiff's contention that plaintiff's father has purchased the said land in the year 1962; he was in possession of the land purchased by him; after his death, plaintiff and his brother are in possession of the said land and now, defendants are trying to claim title and possession over the suit schedule property and out of their said intention, defendant No.1 is litigating with the plaintiff and his brother and other persons and now, on the basis of the entry of defendant No.1's name in the Cont'd..
-17- O.S. No.6327/2018 R.T.C., defendant No.1 has executed the agreement for sale dated 8.8.2018 in favour of defendant No.2, appears to be true and correct.
12. Since there is evidence to show that on the basis of the title documents plaintiff and his brother are in possession of the suit schedule property, and defendant No.1 is claiming title over the suit property and other properties in Survey No.8/1, and as there is evidence to show that plaintiff and his brother are in possession of the suit schedule property, it is the defendants who have to approach the Civil Court seeking proper relief of declaration of their title and recovery of possession and it seems, already first defendant has approached the Civil Court seeking the relief of recovery of possession. Hence, unless and until the plaintiff and his brother are dispossessed from the suit property under due process of law and title of the defendants is declared by the competent Court of law, plaintiff and his brother are entitled to be in possession of the suit schedule property, and defendants are not entitled to create any documents regarding title of the Cont'd..
-18- O.S. No.6327/2018 suit schedule property, or create charge over the suit schedule property. Hence, in order to prevent the defendants from interfering with the plaintiff's possession over the suit schedule property and to prevent them from creating any third-party charge over the suit schedule property, it is proper and necessary to issue permanent injunction against the defendants as claimed by the plaintiff - more so when the evidence of P.W.1 and contents of the documents marked on behalf of the plaintiff at Exs.P.1 to P.20 have remained unchallenged. Hence, Point Nos.1 to 3 are answered as above.
13. POINT No.4 : For my reasons and discussion on the above Points, I proceed to pass the following -
ORDER Suit of the plaintiff is decreed with cost.
Defendants are permanently restrained from interfering with plaintiff's possession over the suit schedule property and also from creating any third-party rights over the suit schedule property.
Cont'd..
-19- O.S. No.6327/2018
Further, defendant No.1 is
permanently restrained from executing sale deed in respect of the suit schedule property in favour of defendant No.2 as per the agreement dated 8.8.2018.
Draw decree accordingly.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 21st day of January, 2021.) (MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFF:
Examined on:
P.W.1 : Ramesh Kumar B. Vijan 03-03-2020
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Exs.P.1 : R.T.Cs.for the years 1966-67 and 1973-74. and P.2 Exs.P.3 to : R.T.Cs. for the years 1983-84 to 2015-16. P.5 Ex.P.6 : Certified copy of the order of the Deputy Commissioner dated 29.9.2010. Ex.P.7 : Certified copy of plaint in OS 3675/2012. Ex.P.8 : True copy of order of Assistant Commissioner in R.A. (BNA)15/2015-16. Ex.P.9 : Certified copy of the order sheet in R.P. No.405/2016-17 on the file of the Deputy Commissioner, Bengaluru.
Cont'd..
-20- O.S. No.6327/2018 Ex.P.10 : Copy of the agreement for sale
dated 8.8.2018 executed by the defendant No.1 in favour of defendant No.2. Ex.P.11 : Certified copy of the order on I.A. No.I in O.S. No.4484/2018 on the file of the XLIV Additional City Civil Judge (CH-45), Bengaluru.
Ex.P.12 : Certified copy of the order passed by the Special Deputy Commissioner dated 30.6.1990.
Exs.P.13 to: Certified copies of documents pertaining to P.15 payment of land acquisition compensation. Ex.P.16 : Certified copy of judgment in O.S. No.5300/1980.
Ex.P.17 : Certified copy of sale deed dated 19.11.1962 under which plaintiff's father has purchased the land in Survey No.8. Ex.P.18 : Certified copy of the correction deed dated 19.12.1966.
Ex.P.19 : Certified copy of the order dated 20.5.2004 passed by the Special Deputy Commissioner, Bengaluru.
Ex.P.20 : R.T.C. in respect of Survey No.8/1 measuring 6-38 guntas of Nagasandra village for the years 2017-18.
3. WITNESS/ES EXAMINED FOR THE DEFENDANTS:
Nil.
4.DOCUMENT/S MARKED ON BEHALF OF DEFENDANTS:
Nil.
(MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..