Bangalore District Court
Sri Chinnaswamy Reddy vs Sri K.M.Lakshmaiah Reddy on 11 February, 2015
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
Present: Sri.V.S.DHARWADKAR, B.Com., L.L.B.,(Spl)
XLI Addl. City Civil Judge
Dated this the 11th day of February 2015.
O.S.No.3338/1988
PLAINTIFF : Sri Chinnaswamy Reddy
Since Deceased by his legal
representatives
1. Smt.Susheela, Aged about 52 yrs
2. Sri K.C.Vijayakumar
Aged about 31 yrs.,
No.1 is the wife and No.2 is the son of
Late Chinnaswamy Reddy,
R/a.No.4/A, Koramangala Village,
Bangalore-560 095.
3. Smt.K.C.Vimala
W/o.M.Narendra Babu
Aged about 30 yrs
R/a.No.868, Opp. NDRI Colony,
8th Block, Koramangala,
Bangalore-560 095.
4. Smt.K.C.Lalitha
W/o.M.P.Narayanaswamy
Aged about 28 years
R/a.No.1, 1st Cross, Madivala,
Bangalore-560 068.
2 O.S.No.3338/1988
5. Smt.K.C.Anitha
W/o.V.Kodanda,
Aged about 26 years
R/a.No.69, 6th Cross,
Cambridge layout, Ulsoor,
Bangalore-560 008.
No.1 is the wife, Nos.2 to 5 are the
children of the Late Chinnaswamy
Reddy.
V/s.
DEFENDANTS : 1. Sri K.M.Lakshmaiah Reddy
S/o.Late K.N.Muniswamy Reddy
Aged about 53 years
R/a.No.103/8, 2nd Main Road, 9th
Cross, Wilson Garden, Bangalore-
560 027.
2. Sri K.M.Venkatappa
Since deceased by his legal
representatives:
(a) Smt Susheelamma, Since
deceased by her legal
representatives 2(b) to (g)
(b) Sri K.V.Padmanabhaiah, Since
deceased by his legal
representatives : 2(b)(A) to (c):
2(b)(a) Smt.V.Vasantha,
aged about 40 yrs.,
W/o.Late K.V.Padmanabhaiah
2(b)(b) Sri K.P.Manoj
Aged about 21 years
S/o.Late K.V.Padmanabhaiah
3 O.S.No.3338/1988
2(b)(c) Kumari Roopashri
Aged about 18 yrs
D/o.Late K.V.Padmanabhaiah,
All are r/a. No.636/3, Sri
Venkateshwara Nilayam
17th 'H' Main, 6th Block,
Koramangala Layout, Bangalore-560
095.
(c) Sri K.V.Balakrishna
Since deceased by his legal
representatives
i) Smt.Manjula
W/o.Late K.V.Balakrishna
Aged about 44 years
ii) Kumari Deepa,
D/o.Late K.V.Balakrishna,
Aged about 24 years
iii) Kumari Shilpa
D/o.Late K.V.Balakrishna
Aged about 22 years
iv) Shanthosh,
S/o.Late K.V.Balakrishna
Aged about 20 years
All are R/a. No.130 of Garden, VI
Block, Koramangala Layout,
Bangalore-560 034.
(d) Sri K.V.Sunder
Major, D/No.91, M.I.G. Housing
4 O.S.No.3338/1988
Board Colony, 5th Block,
Koramangala Layout, Bangalore-560
034.
(e) Smt.K.V.Ramakka, Major,
W/o.A.Chamaraj Reddy,
D/No.116/35, 8th Cross, Wilson
Garden, Bangalore-560 027.
(f) Smt.K.V.Anusuya, Major,
M/o.Sri Chikka Krishnappa,
Chandrappa Garden, No.147/B,
12th Main, Near Syndicate Bank,
III Block, Koramangala Layout,
Bangalore-560 034.
(g) Smt.K.V.Sharadamma,
Major, W/o.Sri O.A. Keshava Reddy,
D/No.117, Domlur,
Bangalore-560 071.
3. Sri.K.M.Hanumappa,
Major,
S/o.Late K.N.Muniswamy Reddy,
R/a.No.131/5, 15th Cross,
8th Main Road, Wilson Garden,
Bangalore-560 027.
4. Sri K.M.Munireddy,
Since deceased by his legal
representatives 4(A) to (j):
(a) Smt.Sakamma,
W/o.Late K.M.Munireddy,
Since deceased by her legal
representatives 4(b) to (j)
(b) Sri K.M.Prabhakara Reddy,
5 O.S.No.3338/1988
Major,
S/o.Late K.M.Munireddy,
No.796/B, 17th 'F-2 Main, 6th Block,
Koramangala Layout,
Bangalore-560 095.
(c) Sri K.M.Rajagopal, Major,
S/o.Late K.M.Munireddy, No.118,
4th 'B' Block, 16th 'B' Main Road,
Koramangala Layout,
Bangalore-560 095.
(d) Sri K.M.Chandra, Major,
S/o.Late K.M.Munireddy, No.247,
LIG-KHB Colony, 3rd Cross,
Koramangala Layout,
Bangalore-560 095.
(e) Sri K.M.Muniswamy Reddy,
Major, S/o.Late K.M.Munireddy,
No.29, MIG-KHB Colony,
Koramangala Layout,
Bangalore-560 095.
(f) Smt.K.M.Nagarathna, Major,
W/o.Sri P.Gopal Reddy,
D/o.Late K.M.Munireddy, No.1, 1st
Cross, Madivala,
Bangalore-560 068.
(g) Smt.K.M.Jayamma,
Major, W/o. Sri Sathyanarayana,
D/o.Late K.M.Munireddy,
No.29, MIG-KGB Colony,
Koramangala Layout,
Bangalore-560 095.
6 O.S.No.3338/1988
(h) Smt.Renuka
Major,
W/o.H.Vasudeva, D/o.Late
K.M.Munireddy, No.29, MIG-KHB
Colony, Koramangala Layout,
Bangalore-560 095
(i) Smt.K.M.Shobha, major,
W/o.K.N.Raju,
D/o.Late K.M.Munireddy,
Kempapura Village, Yemalur Post,
Bangalore-560 037.
5. Sri K.M.Jayappa
S/o.Late K.N.Munishami Reddy
Major, No.131/5, 15th Cross, 8th
Main, Wilson Garden,
Bangalore-560 027.
6. Sri K.M.Krishnappa
S/o.Late K.N.Munishami Reddy
Major, No.4, Koramangala Village,
Bangalore-560 034.
7. Sri K.M.Ramaiah Reddy
Since deceased rep. by his legal
representatives Defendant No.7(a)
to(c)
7(a) Smt.Kantha,
W/o.Late K.M.Ramaiah Reddy
Aged about 50 yrs
7(b) Sri Taranatha,
S/o.Late K.M.Ramaiah Reddy
Aged about 28 years
7 O.S.No.3338/1988
7(c) Sri R.Mohan
S/o.Late K.M.Ramaiah Reddy
Aged about 25 years
All are R/a.No.43, 2nd Main, 2nd
Stage, BTM Layout,
Bannerghatta Road, Bangalore.
8. Smt.Chinnamma,
W/o.Sri Chikkaramaiah Reddy
Since, deceased by his legal
representatives 8(a) to (d);
(a) Sri Chikkaramaiah Reddy, Major
(b) Sri Mukunda, Major
(c) Sri Ramesh, Major
(d) Sri Babu Reddy, Major
Defendant No.8(A) is the husband of
Late Chinnamma, and defendants
No.8(b) to (d) are the children's of
Late Chinnamma, and all are
R/a.C/o.Raghavendra Electricals, D
No.12, Maruthi Nagar, Madivala
Extension, Bangalore-560 068.
9. Bangalore Electricity Supply
Company Limited, South-4, Sub
Division, Bangalore Development
Authority Complex, Koramangala,
Bangalore-560 034.
Rep. by Executive Engineer.
Date of Institution of the 18.08.1988
Suit:
Nature of the suit Suit for declaration, permanent
8 O.S.No.3338/1988
(Suit on Pronote, suit for injunction, rectification and
declaration & possession, mandatory injunction
suit for injunction)
Date of commencement of 05.09.1995
recording of evidence:
Date on which the 11.02.2015
Judgment was
pronounced:
Total Duration: Year/s Month/s Day/s
26 05 23
(V.S.DHARWADKAR)
XLI Addl. City Civil Judge
Bangalore City.
9 O.S.No.3338/1988
JUDGMENT
The plaintiffs have filed this suit for a declaration that they are the owners of the southern front portion of the land abutting the Bangalore Development Authority road on the south measuring 32 feet east to west and 80 feet north to south described by letters "MNRS" in the annexed plan and forming part of the garden land shown as 'D' in the annexed plan, allotted to him out of Survey No.135/2 of Koramangala at the oral partition on 28.3.1974 amongst him and the defendants which is more fully described in Schedule 'A' of the plaint and the plaintiffs have also prayed for a permanent injunction restraining the 1st defendant, his men, agents, servants and representatives from interfering with the plaintiffs peaceful possession and enjoyment of the said portion and the plaintiffs have also prayed for rectifying the palupatti dt.30.3.1974 amongst the plaintiff and the defendants recording their respective shares in so far as the same relates to Survey No.135/2 of Koramangala village, Begur Hobli, Bangalore South Taluk, by rectifying the 10 O.S.No.3338/1988 boundaries of the different plots made and allotted to the plaintiff and defendants 1 to 7 in the said land bearing Survey No.135/2 in the manner described in Schedule 'B' hereunto annexed and to grant such other relief's as the Court deems fit and to grant mandatory injunction directing the 1st defendant Sri K.M.Lakshmaiah Reddy and 9th defendant BESCOM to demolish/remove immediately the constructions and fixations put up by them i.e. huge transformer of 350 KVA under self execution scheme in the suit schedule 'A' property, in gross disobedience of this Hon'ble Courts status quo order dt.23.11.1989 and 14.3.1990.
2. The plaint averments in brief are as under:
That the suit schedule properties are :-
Schedule 'A' Front Southern portion abutting the road and measuring 32 feet east to west and 80 feet north to south shown by letter "MNRS" in the annexed plan, being part of the land out of Survey No.135/2 of Koramangala Village, 11 O.S.No.3338/1988 described as Item No.3 of Schedule 'D' of the Palupatti dt.30.3.1974 made between the parties. The said front southern portion is bounded as follows:-
East by : Land measuring 50 X 80 feet allotted to the 'H' scheduledar Sri K.M.Ramaiah Reddy, the 7th defendant according to the palupatti, West by : The land measuring 50 X 80 feet allotted to the 'G' scheduledar Sri K.M.Lakshmaiah Reddy, the 1st defendant according to the palupatti;
North by : The remaining portion of the plot in Sy.
No.135/2, allotted to the 'D' scheduledar Chinnaswamy Reddy, the plaintiff; and South by : Road, SCHEDULE 'B' Particulars of Rectification of the palupatti sought:-
1. In item No.5 of 'A' Schedule of the palupatti:
(a) Re-Eastern Boundary:
For the word 'Garden land allotted to the 'B' Scheduledar's Share', substitute the words 'Garden lands allotted to the 'B' and the 'C' Scheduledars.'
(b) Re:Southern boundaries:
(c) For the words the 'garden land measuring 50 feet east to west and 80 feet north to south allotted to 'C' Scheduledar's substitute the word "the portion of 'A' Scheduledar's land and the garden land measuring 50' east to west and 80' north to south allotted to the 'C' scheduledar's Share".12 O.S.No.3338/1988
2. In item No.5 of 'B' schedule of the palupatti:
(a) Re:Eastern Boundary:
For the words 'D' Scheduledar' substitute the words 'D' and 'G' Scheduledars'.
(b) Re:Western Boundary:
For the words 'A' scheduledar substitute the words 'A' and 'F' scheduledars."
(c)Re:Southern boundary:
At the end of the word "Jameen" add the words "Road".
3. In item No.2 of 'C' Schedule of the Palupatti:
(a) Re-Western Boundary;
For the words 'Oni and CITB Kaluve' substitute the words ' the portion of the land allotted to the 'A' Scheduledar'.
(b) Re-Southern Boundary:
For the words ' Our land bearing Sy.No.137' substitute the word 'Road.'
4. In item No.3 of 'D' Schedule of the palupatti:
(a) Re: Eastern Boundary:
For the words 'E' scheduledar' substitute the words 'E' and 'H' scheduledars.'
(b) Re:Western boundary:
For the words 'B' scheduledar' substitute the words 'B' and 'G' scheduledars'.
(c) Re:Southern boundary:
After the words 'Garden land measuring 50' East to West and 80' North to South allotted to the 'G' scheduledar's share', add the word 'Road.'
5. In item No.5 of 'E' Schedule of the Palupatti:
(a) Re:Western Boundary:
Substitute the words 'D' & 'H' scheduledar's for the words 'D' scheduledar.'
(b) Re:Southern Boundary:
For the words 'Garden land measuring 50' East to 13 O.S.No.3338/1988 West and 80' North to south allotted to the 'H; scheduledars share substitute the words 'the Garden land measuring 50 feet east to west and 80 feet North to South allotted to the 'H' scheduledar's share and the 'Road.'
6. In Item No.2 of 'F' Schedule of the palupatti:
(a) Re:Eastern Boundary:
For the words 'Garden land allotted to the 'G' scheduledar's Share' Substitute the words 'Portion of the Garden land allotted to the 'B' Scheduledar's share.
(b) Re:Southern boundary:
For the words ' Our lands bearing Sy.No.137', substitute the word 'Road.'
7. In item No.2 of 'G' Schedule of the palupatti"
(a) Re:Eastern Boundary:
For the words 'Garden land allotted to the 'H' Scheduledar's shares' Substitute the words 'the portion of the land allotted to the 'D' scheduledar.'
(b) Re:Western boundary:
For the words 'Garden land allotted to the 'F' Scheduledar's share', substituted the words 'portion of the land allotted to the 'B' scheduledar.'
(c) Re:Southern boundary:
For the words 'Our land bearing Sy. No.137'. substitute the word 'Road'.
8. In item No.2 of 'H' Schedule of the palupatti:
(a) Re:Eastern Boundary:
For the words 'CITB Road', Substitute the words 'portion of the land allotted to the 'E' Schedule.'
(b) Re:Western boundary:
For the words 'Garden land allotted to the 'G' Scheduledar's share', substitute the words ' portion of the land allotted to the 'D' scheduledar's share.'
(c) Re:Southern boundary:14 O.S.No.3338/1988
For the words 'Our land bearing Sy.No.137', substitute the words 'Road'.
It is stated that the plaintiffs and the defendants are the children of the late Sri K.N.Muniswamy Reddy and he was the kartha of the joint hindu family and after his death his eldest Son Sri K.M.Venkatappa the 2nd defendant became the kartha of the Joint Hindu Family consisting of plaintiff and defendants No.1 to 7 and the 8th defendant is the married sister of the plaintiff and defendants No.1 to 7. It is stated that Sri K.N.Munishami Reddy died on 23.7.1964 and the joint family of the plaintiff and defendant No.1 to 7 owned joint family properties and there was an oral partition in between them on 28.3.1974 and in the said oral partition the 8th defendant Smt.Chinnamma i.e., the married sister of the plaintiff and defendant No.1 to 7 was also given the house site and on 30.3.1974 the said palupatti was prepared showing the particulars of the properties allotted to the shares of each one of them i.e., plaintiff and the defendant No.1 to 8 and the palupatti has been signed by all the parties namely the 15 O.S.No.3338/1988 plaintiffs and the defendants No.1 to 8 and it discloses what are the properties that were allotted to each of the parties. It is stated that it is not the deed of partition and therefore it was not registered. It is further stated that as per the oral partition dt.28.3.1974 the parties got the khatha's changed in their names.
It is further stated that during the oral partition dt.28.3.1974 the properties allotted to the share of the 2nd defendant Sri K.M.Venkatappa has been described in the Schedule 'A' of the palupatti and the properties allotted to the 4th defendant Sri K.M.Munireddy has been described in schedule 'B' of the palupatti, the properties allotted to the 3rd defendant Sri S.M.Hanumappa are described in Schedule 'C' of the palupatti and the properties allotted to the share of the plaintiff Sri K.M.Chinnaswamy Reddy are described in schedule 'D' of palupatti, the properties allotted to the share of the 5th defendant Sri K.M.Jayappa are described in schedule 'F' of the palupatti, the properties allotted to the 6th defendant Sri K.M.Krishnappa are described in schedule 'E' of 16 O.S.No.3338/1988 the palupatti, the properties allotted to the share of the 1st defendant Sri.K.M.Lakshmaiah Reddy are described in Schedule 'G' of the Palupatti, the properties allotted to the share of 7th defendant Sri.K.M.Ramaiah Reddy are described in Schedule 'H' of palupatti and the property (House site) allotted to the share of 8th defendant Smt.Channamma is described in Schedule 'I' of the palupatti.
It is further stated that out of the properties orally partitioned the land bearing Sy. No.135/2 measuring 2 acres 17 guntas situated in Koramangala Village, Begur Hobli, Bangalore South Taluk though was classified as dry and bagayath in the revenue records, but it was suitable and to be used as a house site and in the oral partition the plaintiff and the defendant No.2, 4 and 6 were each allotted the land measuring 20¾ guntas in the palupatti and it is shown as item No.3 of schedule 'D', item No.5 of Schedule 'A' item No.5 of schedule 'B' and item No.5 of Schedule 'E' of the said palupatti. Defendants No.1, 3, 5 and 7 were also each allotted a site measuring 50 feet X 80 feet, in the said land as stated 17 O.S.No.3338/1988 in item No.2 of the schedule 'G', item No.2 of the schedule 'C', item No.2 of the Schedule 'F', item No.2 of the schedule 'H' in the said palupatti and it is stated that all the parties except defendant No.5 Sri K.M.Jayappa Reddy and defendant No.7 Sri K.M.Ramaiah Reddy have constructed the buildings and factory sheds in their respective portions of the said property.
It is stated that 4 sites measuring 80 feet X 50 feet each were allotted to defendant No.3, 5,1 and 7 respectively and it is shown by the letters C, F, G and H in the annexed plan and they are shown as item No.2 of schedule 'C' allotted to the defendant No.3 Sri Hanumappa, Item No.2 of schedule 'F' allotted to the 5th defendant Sri K.M.Jayappa, Item No.2 of Schedule 'G' allotted to the 1st defendant K.M.Lakshmaiah Reddy and item No.2 of the schedule 'H' allotted to the 7th defendant Sri K.M.Ramaiah Reddy. It is stated that even though in the oral partition made on 28.3.1974 it was clearly and expressly agreed that the said defendants No.3, 5,1 and 7 should be allotted each site measuring 50 feet X 80 feet in the land bearing Sy. No.135/2, but however by mutual mistake 18 O.S.No.3338/1988 while preparing palupatti on 30.3.1974 certain boundaries of each of the four sites were wrongly described as under:-
a. The Western boundary of the site measuring 50 feet X 80 feet allotted to the 3rd defendant Sri S.M.Hanumappa (Vide item No.2 of Schedule - 'C' at Page 14 of the printed palupatti annexed hereto) was wrongly described as "Voni" and CITB Kaluve, instead of the portion of the land allotted to Sri K.M.Venkatappa, the A-Schedule holder.
b. The eastern boundary of the site measuring 50 X 80 allotted to the 5th defendant K.M.Jayappa (Vide annexed printed palupatti item No.2 Schedule - F, Page 22) was wrongly described as the garden land belonging to the 'G'- Schedule holder 1st defendant K.M.Lakshmaiah Reddy, instead of "Portion of the land allotted to Sri K.M.Munireddy - The B- Schedule holder. In the said portion, K.M. Munireddy- the 4th Defendant has constructed a stories building."
c. The Eastern boundary of the site measuring 50 feet X 80 feet allotted to the 1st defendant Sri K.M.Lakshmaiah Reddy (Vide printed palupatti item No.2 of the Schedule - G at page 24) was also wrongly described as the garden land allotted to the 'H' schedule holder (K.M.Ramaiah Reddy-The 7th Defendant) instead of "the portion of the land allotted to the D-Schedule holder Sri Chinnaswamy Reddy - The plaintiff." Similarly the western boundary of this site is also wrongly described as the F- Schedule allottee land (K.M.Jayappa - the 5th defendant) instead of "the portion of the land allotted to the 'B' schedule holder Sri K.M.Munireddy" (the 4th defendant), who has since constructed a storied building as stated above. d. Similarly by a mutual mistake the eastern boundary of the site measuring 50 feet X 80 feet allotted to the 7th defendant Sri.K.M.Ramaiah Reddy, was also wrongly shown as CITB Road (Vide printed palupatti item No.2 of 19 O.S.No.3338/1988 'H' - Schedule at page 26) instead of "the portion of the land allotted to the E-Schedule holder" (6th defendant Sri K.M.Krishnappa). Similarly the western boundary of this plot was also wrongly described as "the garden land allotted to G-Schedule holder". (1st defendant - Sri K.M.Lakshmaiah Reddy) instead of "the portion of the land allotted to the D-Schedule holder Chinnaswamy Reddy"- The plaintiff.
It is further alleged that even though wrong boundaries were mentioned, but the parties by mutual mistake and consent constructed building in their respective portion as mentioned in para No.7 of the plaint. It is stated that the portion shown as 'D' schedule in the plaint sketch and delineated by letters " M N O P Q R S" was allotted to the share of the plaintiff out of Survey No.135/2 and the plaintiff has constructed factory buildings in the rear portion and has let out the same to M/s.AIM Overseas Private Limited and about 250 workmen are working in the said factory and the entrance to their factory is from the road on the southern side of the plaintiffs said property and southern portion of the plaintiffs said property and abutting the said road on the south is shown by letters "M N R S" in the plaint sketch and it 20 O.S.No.3338/1988 measures 32 feet east to west and 80 feet north to south and it is also being used as a passage by lessee's of the plaintiff and their workmen working in their factory as ingress or egress from the factory in the rear to the road on the south. It is stated that if the said portion is not allowed as passage then the factory building would be landlocked and no ingress or egress can be made and it is stated that on the western side of the portion "M N R S" there is a site measuring 50 feet X 80 feet and the 1st defendant has constructed a multistoried building on the said site. On the eastern side of the plaintiffs said portion, "M N R S" there is site measuring 50 X 80 feet is allotted to the 7th defendant and so far no any construction has been put up. It is further stated that the 1st defendant has completed his construction and the same is yet to be occupied and the front portion of the plaintiff abutting the road was used as a passage by the plaintiffs lessees and formerly there was a temporary shed and the plaintiff has removed the same after his lessee M/s.AIM Overseas Private Limited required the same to be demolished to clear the 21 O.S.No.3338/1988 passage. It is stated that the plaintiff has been in actual possession and enjoyment of the portion of "M N R S"
property and it is further stated that in August 1987 the 1st defendant started constructing the building in the site which is adjoining to the said portion and when the site was nearing completion, the 1st defendant had asked the plaintiff to allow him and his tenant to occupy his own building to park their cars in the plaintiffs portion marked by letters " MN R S" and the plaintiff refused to his request and it is stated that at that time the defendant No.1 started obstructing his right in the plaintiffs said portion for parking the vehicles and he started contending that the said portion belongs to him. It is stated that at that time the plaintiff came to know that the eastern boundary of the 1st defendant measuring 50 feet X 80 feet has been wrongly described in the palupatti and the other sites measuring 50' X 80' also contained some wrong boundaries. It is stated that the plaintiff who was the party to the partition apprised them of the same and thereafter all the brothers including the 1st defendant met the panchayathdars Sri Syed 22 O.S.No.3338/1988 Abdulla and Sri Muniswamy @ Annaiah Reddy and all the brothers agreed to refer the dispute relating to the boundaries to the said Panchayathdars and a letter dt.5.9.1987 was addressed to the said panchayathdars and it is stated that the said letter was signed by all the brothers except defendant No.1 who refused to sign and he went away. It is stated that thereafter the plaintiff took steps to put up a compound on the western and eastern side of his front portion of the site shown by letters "MNRS" with a gate on the southern side abutting the road and the 1st defendant told the plaintiff that he himself would put up the compound at his own cost for the plaintiff after construction of his building on the said site when it is completed. It is stated that after completion of the building, the defendant did not put up construction of the compound wall and so the plaintiff tried to put up compound wall in the said area and at that time the defendant No.1 obstructed for the same. According to the plaintiff the boundaries that were mentioned in the palupatti dt.28.3.1974 were incorrect. It is stated that now the 1st defendant has 23 O.S.No.3338/1988 maliciously disputed the plaintiffs title over M N R S portion by taking advantage of the mis-description of the eastern boundaries of his site. It is further stated that the defendant No.9 has installed a huge transformer of 350 kilowatts and this transformer has been got installed by the defendant No.1 inspite of the protest by the plaintiff. It is stated due to the installation and erection of the high voltage transformer, the plaintiffs property right has been infringed and his passage has been partly blocked, and there is also dangerous threat to the lives of the plaintiffs servants and people. Hence, the plaintiff has filed this suit seeking the afore said relief's.
3. After the suit was filed, summons was issued to the defendants for their appearance and in response, except Defendant No.4 all other defendants have appeared before the court and defendant No.4 is placed ex-parte. The defendant No.1, 2, 5, 6, 7 and 8 have filed written statement admitting their relationship with the plaintiff. It is contended that even though the 2nd defendant was the kartha of the Joint Hindu 24 O.S.No.3338/1988 Family, but it was the plaintiff who was looking after all the affairs of the family since 23.7.1964. The defendants have admitted about the oral partition on 28.3.1974 and also about the preparation of the palupatti on 30.3.1974 and it is contended that the palupatti shows the particulars of the allotment of the share to each one of them namely the plaintiff and defendant No.1 to 8 as per the oral partition dated 28.3.1974. It is stated that in the oral partition it was decided to allot equal shares in respect of all joint family properties amongst the plaintiffs and the defendants but the palupatti dt.30.3.1974 has not provided equal shares in respect of all the properties and the two sisters of the plaintiff and the defendants namely Smt.Nagamma and Nanjamma are left out of the partition and they have not been given any share even though they were entitled to certain shares in the joint family properties. The defendants have admitted the allotment of the shares as mentioned by the plaintiff in para No.3 of the plaint. It is denied that the plaintiff and the defendant No.2, 4 and 6 were each allotted an area measuring 25 O.S.No.3338/1988 20¾ guntas out of Survey No.135/2. It is stated that in the oral partition dated 28.3.1974 it was agreed to allot equal shares to the plaintiff and the defendants in the land bearing Survey No.135/2 but where as in the palupatti dt.30.3.1974 it is shown that the plaintiff and the defendant No.2, 4 and 6 have been allotted 20¾ guntas each and the defendant No.1, 3, 5 and 7 have been allotted the land as described in item No.2 of the schedule 'G', 'C', 'F' and 'H' respectively. It is contended that the boundaries of the properties allotted to the plaintiff and the defendants are also described in palupatti dated 30.3.1974. It is stated that even though the measurement of the property in palupatti is described as 50' X 80' (roughly 3½ guntas each, but they have been allotted the properties according to the boundaries mentioned and it is understood and has been acted upon as such the parties are in possession and enjoyment of the properties accordingly since 30.3.1974.26 O.S.No.3338/1988
It is contended that the plaint sketch produced by the plaintiff is incorrect and it does not depict the true state of affairs as regards the allotment of shares in the palupatti dt.30.3.1974 and also the possession and enjoyment of the properties of the parties. It is contended that the plaintiff has produced the concocted sketch to suit his convenience with malafide intention and it is denied that all the parties except Defendant No.5 and 7 have constructed the buildings and factory sheds and they are in respective portions of the said property. The defendants have also produced the sketch showing the actual location and the possession of the properties by the parties. It is contended that the plaintiff has constructed the building in the portion of the land allotted to him measuring 20¾ guntas and has got an approach road on the northern side of the building and the defendants No.1, 2, 3 , 5 and 7 have also constructed buildings in their portions of their properties. The defendants have denied that wrong boundaries have been mentioned in the palupatti. It is contended that all the parties had agreed to the boundaries 27 O.S.No.3338/1988 mentioned in the palupatti and they have acted upon it and there is no mutual mistake committed as regards the particulars mentioned in the boundaries. It is contended that the intention of the parties has been reduced into writing and there is no discrepancy in the palupatti dt.30.3.1974. It is contended that the original palupatti dt.30.3.1974 which was in the custody of the defendant has been taken away by the plaintiff stating that he has to show the same to some authority at the time of construction of the building and the same has not been returned to Defendant No.2 so far. It is contended that it is necessary on the part of the plaintiff to produce the original palupatti dt.30.3.1974.
It is contended that in the palupatti dt.30.3.1974 it is made amply clear that in case the land bearing No.135/2 measuring 2 acres 17 guntas is not acquired by the Government the C, F, G, H schedule should have common passage amongst themselves in respect of the properties allotted to them and thereafter the scheduledars ABDE 28 O.S.No.3338/1988 should share the remaining portion of the land equally leaving common passages in the lands allotted to them. It is contended that the plaintiff and defendant No. 2, 4 and 6 have no right in respect of the properties allotted to the defendant No.1, 3, 5 and 7 described with the boundaries shown in the annexed plan by letters E G H I, D Q F E and D A B C, C B O P respectively and the plaintiff and defendant No.2, 4 and 6 should provide roads for the access to the buildings to the properties mentioned by letters A Q L M B, H J K G, F K L Q and B M N O respectively. The defendants have totally denied that there is any wrong mentioned in the palupatti. It is admitted that the plaintiff has been allotted 20¾ guntas in the land bearing Sy. No.135/2 described in schedule 'D' of the palupatti. But it is denied that it is denoted by letters MNOPQRS in the plain sketch. It is contended that it is only OPQRN portion i.e. allotted to the plaintiff, but not the portion mentioned by letters MNRS. It is contended that the plaintiff has constructed the building in his property in the area shown as ALMB in the plan annexed 29 O.S.No.3338/1988 to the written statement. It is contended that the plaintiff has constructed the building in the entire portion of the property allotted to him and it is denied that the entrance to his factory is from the road on the southern side of the plaintiff's property abutting the said road on the south shown by letters MNRS in the annexed plan measuring 32 feet east to west and 80 feet north to south and it is denied that the said passage is used by the lessees of the plaintiff and their workmen in their factory. It is denied that the factory building of the plaintiff would be land locked one with no ingress or egress if the said portion is not given to him. It is contended that the plaintiff and the lessee are using the road situated on the northern side of the plaintiffs property inorder to approach their building. It is contended that the 1st defendant has constructed multi storied building in his portion of the land and it is denied that to the eastern side of the plaintiffs property there is a site measuring 50 feet X 80 feet which is allotted to 7th defendant. It is specifically denied that the portion MNRS belongs to the plaintiff and according to the 30 O.S.No.3338/1988 defendants it belongs to defendant No.1. It is contended that the 7th defendant is allotted the portion of the property mentioned in item No.2 of the schedule 'H' of the palupatti within the boundaries mentioned in it. It is denied that the 1st defendant has just completed the construction and the same is yet to be occupied. It is denied that the defendant had put up temporary construction over the passage. It is denied that when the construction of the 1st defendant building was going on in the adjoining site and was nearing completion, the 1st defendant had asked the plaintiff to allow him and his tenants to occupy the new building to park the cars in the plaintiffs said portion marked by letters MNRS in the annexed plan and plaintiff refused to it. It is denied that thereafter the plaintiff discovered that the front side measuring 50 X 80 feet was wrongly described in the palupatti and the boundaries of other sites were also wrongly mentioned. It is contended that the plaintiff was a person having worldly knowledge and he was managing the affairs of the family and it is stated that he has maneuvered to get written the unequal partition among 31 O.S.No.3338/1988 the members of the family in the year 1974 when the defendants were young. It is contended that the defendant No.2 is uneducated person having no worldly knowledge. It is denied that the letter dt.5.9.1987 is in respect of the land bearing Survey No.135/2. It is contended that the plaintiff has no right in the portion of the property marked by letters MNRS. It is further contended that the plaintiff has put up construction in his property long back and is making use of the road on the northern side of the plaintiff's property. The defendants have denied all the allegations made by the plaintiff stating that each person has put up construction over his property. It is also denied that the 3rd defendant had approached the 2nd defendant to construct the building shown as Garden Restaurant in the plan on lease basis with an understanding that the 2nd defendant shall handover the possession of the property after the expiry of 20 years. It is denied that the 1st defendant maliciously disputed the plaintiffs title in respect of the property delineated by the letters MNRS in the plan annexed to the plaint. It is 32 O.S.No.3338/1988 contended that the plaintiff has filed this false suit making false allegations just to have wrongful gain and to grab the property belonging to the defendants. It is contended that the palupatti dt.30.3.1974 is a document intervivos evidencing the partition amongst the members of the family which has been acted upon and it cannot be questioned by the plaintiff and he is not entitled for a decree for rectification of the palupatti at the hands of this Hon'ble Court. It is contended that the relief's claimed by the plaintiff are not at all maintainable and they are barred by time and the suit is also bad for non-joinder of necessary parties viz the sister Smt.Nagamma and Smt.Nanjamma. it is further contended that there is no cause of action for the suit and the court fee paid is not proper and hence on all these grounds, the defendants have prayed for the dismissal of the suit.
The defendant No.9 has filed a separate written statement contenting that the suit of the plaintiff is not maintainable either in law or on facts. It is denied that inspite 33 O.S.No.3338/1988 of the protest by the plaintiff, the defendant No.9 has put up 350 Kilo watts transformer. It is contended that as per the request of defendant No.1 the BESCOM authorities have sanctioned additional power to the 1st defendant under the self execution scheme. It is denied that inspite of the status quo order the defendant No.9 has continued to put up the transformer in the MNRS portion. It is also denied that there is a threat to the life of the people. It is contended that the plaintiffs relief seeking mandatory injunction against the 9th defendant is barred by limitation and according to defendant No.9 the said portion was allotted to defendant No.1 in the palupatti dt.30.3.1974 with specific boundaries and multistoried buildings have been put up in the said area and the boundaries and the measurement are totally different. It is contended that since the defendant No.1 has deposited the amount with BESCOM authorities for additional power, so the BESCOM has fixed the transformer in the area i.e., 'G' schedule property which is belonging to the 1st defendant and it is contended that there are about 400 employees and the 34 O.S.No.3338/1988 defendant has not at all encroached upon D schedule property nor constructions have been made violating the status quo order. It is contended by the defendant No.9 that the relief of declaration/permanent injunction/rectification, mandatory injunction as claimed by the plaintiff is barred by limitation and it is not maintainable in law and so the suit is liable to be dismissed.
The 3rd defendant has filed a separate written statement admitting about the palupatti dt.30.3.1974. He has also admitted that after the partition all the parties except defendant No.5 and 7 have constructed buildings and factory sheds in their respective portions. According to defendant No.3 the plan produced by Defendant No.1, 2 and 5 to 8 is wrong. He has contended that he is not aware of the talks between the plaintiff and the 1st defendant. But he has stated that all the brothers including the 1st defendant had met in the presence of panchayatdars for the purpose of boundary discrepancies in the palupatti and all of them referred the 35 O.S.No.3338/1988 said dispute to the panchayatdars by a letter dt.5.9.1987. This defendant No.3 has supported the case of the plaintiff and he has prayed for decreeing the suit. Defendant No.4 also has supported the case of the plaintiff. Defendant No.9 has filed additional written statement contending that the suit of the plaintiff is barred by principles of estoppel, waiver and acquiescence and according to defendant No.9 it is not a necessary party to the suit and it is purely the property dispute and the defendant No.9 denies all the allegations made by the plaintiff. It is contended that the plaintiff is not entitled to any of the relief's claimed by him and so the defendant No.9 has prayed for the dismissal of the suit.
4. On the basis of the above pleadings, the following issues have been framed:
ISSUES
1. Whether the plaintiff proves that 'MNRS' is allotted to plaintiff under partition deed dt.28.3.1974 (Plaintiff)?36 O.S.No.3338/1988
2. Whether the plaintiff proves the he is in actual, physical possession to the exclusion of 1st defendant?
3. Whether the plaintiff proves that palupatti dt.30.3.1974 boundaries are wrongly stated in respect of Sy. No.135/2 required rectification of 'B' schedule?
4. Whether the plaintiff proves unlawful interference of defendant No.1 of area MNRS and it is the ingress and egress for plaintiff?
5. Whether the defendant No.1 and other defendants proves that area MNRS exclusively belongs to defendant No.1 and is in exclusive possession and allotment of share under palupatti is correct?
6. Whether the defendant No.1 proves that there are no opening for the building on southern side except on the eastern side?
7. Whether Court fee paid sufficient and suit is valued properly?
8. What Decree or Order ?
ADDITIONAL ISSUES FRAMED ON 16.11.1995
1. Whether the plaintiff proves that the suit is maintainable in law?
2. Whether the plaintiff proves that the suit is within time under the Limitation Act?37 O.S.No.3338/1988
3. Whether the defendant proves that the suit is bad for non-joinder of necessary parties?
ADDITIONAL ISSUES
4. Whether the plaintiffs prove that the transformer installed by the 9th defendant comes within the D schedule property as specified in the palupatti dated 30.3.1974?
5. Whether the 1st defendant proves that the D and G schedule properties under palupatti dt.30.3.1973 are different properties and further proves that MNR portion claimed by the plaintiff is coming within the G Schedule?
6. Whether the plaintiffs prove that this Court has jurisdiction for rectification of palupatti of the year 1971 effected between the plaintiffs and the defendants?
7. Whether the plaintiffs prove that the construction and erection of high voltage transformer under self execution scheme of the 9th defendant - BESCOM in a portion of the plaint A schedule property marked as MNRS in the plaint sketch, by the 1st defendant, is in violation and willful disobedience of the orders of status quo dt.23.11.1989 and 4.3.1990?
8. Whether the plaintiffs are entitled for the relief of mandatory injunction directing defendants 1 and 9 to remove the transformer and the construction made for erection of transformer 38 O.S.No.3338/1988 and to restore the suit A schedule property marked as MNRS as shown in the plaint sketch to its original condition as on the date of order of status quo?
5. Inorder to prove the case the plaintiff has examined himself as P.W.1 and three other witnesses as PW2 to 4 and has got marked 43 documents at Exs.P.1 to 43 and has closed the side.
The defendant No.1 on the other hand, has examined himself as defendant No.1 as D.W.1 and has got marked 27 documents at Exs.D.1 to 27 and has closed the side.
6. Heard the arguments of the learned counsel for the plaintiff and the learned counsel for the defendants.
7. The learned counsel for the plaintiff during the course of his arguments has relied upon the following decisions.
1. 1940 Bombay 605
2. AIR 1961 - 379 39 O.S.No.3338/1988
3. KLJ 1987 - 379
4. ILR 1987 - 3873
5. 2010(11) SCC 514
6. 2013(3) SC 801
8. The learned counsel for the defendants during the course of his arguments has relied upon the following decisions.
1. 2013(3) SC 801
2. AIR 1972 SC 2685
3. AIR 1975 All 395
4. AIR 1972 Mysore P.184
5. AIR 1948 (Privy Council) P.207
9. My findings to the above issues are as under:
ISSUE No.1 : In the negative
ISSUE No.2 : In the negative
ISSUE No.3 : In the negative
ISSUE No.4 : In the negative
ISSUE No.5 : In the affirmative
ISSUE No.6 : In the affirmative
ISSUE No.7 : In the affirmative
40 O.S.No.3338/1988
Addl. ISSUE No.1 :In the affirmative
Addl. ISSUE No.2 :In the negative
Addl. ISSUE No.3 :In the negative
Addl. ISSUE No.4 :In the negative
Addl. ISSUE No.5 :In the affirmative
Addl. ISSUE No.6 :In the negative
Addl. ISSUE No.7 :In the negative
Addl. ISSUE No.8 :In the negative
ISSUE No.8 :As per final order, for the
following:-
REASONS
10. ISSUE No.1, 2, 3 and 5:- Since, all these four issues are inter connected and they can be discussed together so they have been taken up together for discussion inorder to avoid repetition of facts and evidence.
11. It is undisputed fact that there was partition between the parties on 28.3.1974 and subsequently on 30.3.1974 a palupatti was prepared showing the particulars of the properties allotted to the share of each person. It is also not in dispute that the plaintiff and the defendant No.1 to 8 are the brothers. Defendant No.9 has been subsequently added and it is the Bangalore Electricity Supply Company 41 O.S.No.3338/1988 Limited., Now, the plaintiff and defendant No.2, 4 and 7 have died and their legal representatives have been brought on record. The plaintiff in his plaint has prayed to declare that he is the owner of the southern front portion of the land abutting the BDA road on the south measuring 32 feet east to west and 80 feet north to south which is described by letters 'MNRS' in the annexed plan, stating that it was allotted to him in the oral partition dt.28.3.1974 and it is a part and parcel of Sy. No.135/2 of Koramangala Village, Bangalore and the property is shown by letter 'D' in the annexed plan and he has also prayed for rectifying the palupatti dt.30.3.1974 by rectifying the boundaries of the different plots allotted to the defendants No.1 to 7 and plaintiff and he has also prayed for permanent injunction restraining the defendant No.1, his men, agents, servants and representatives from interfering in the plaintiffs peaceful possession and enjoyment of the said portion and he has also prayed for granting mandatory injunction directing the 1st defendant and 9th defendant to demolish/remove immediately the constructions and fixations 42 O.S.No.3338/1988 put up by them in the suit 'A' schedule property in gross disobedience of the Hon'ble Courts status quo order dt.23.11.1989 and 14.3.1990.
12. It is not in dispute that the suit schedule property and other properties were previously the properties of K.N.Muniswamy Reddy and he was the kartha of the Joint Hindu Family and according to the plaintiff after the death of his father, his elder son Sri K.M.Venkatappa i.e., 2nd defendant became the kartha of the family consisting of the plaintiff and defendant No.1 to 7 and 8th defendant is the married sister of the plaintiff and defendant No.1 to 7. It is stated by the plaintiff that their father K.N.Munishami Reddy died on 23.7.1964 leaving the joint family properties and thereafter the oral partition took place on 28.3.1974 amongst the members of the joint Hindu family and during the said partition the 8th defendant Smt.Chinnamma who is the married sister of the plaintiff and defendant No.1 to 7 was also given a house site and subsequently on 30.3.1974 a 43 O.S.No.3338/1988 palupatti was prepared showing the particulars of the properties allotted to the shares of the plaintiff and defendant No. 1 to 8 and it was also signed by all the parties and he has also further stated that the properties that have fallen to the share of each person in the said oral partition is clearly mentioned in para No.4 of the plaint. Now, the plaintiff has started contending that the boundaries in the said palupatti are not proper and they have not been properly mentioned, according to him the portion shown as 'MNOPQRS' belongs to him. But the defendant No.1 has put up building over it and has also fixed a transformer in collusion with defendant No.9 and as such it has now become difficult for the plaintiff and his tenants to make use of the property of the plaintiff. According to the plaintiff there is no way for the plaintiff to approach to his proper except the property which is to the southern side of the plaintiffs property and according to the plaintiff if the defendant is allowed to put up any constructions and installs a transformer, then his property will be land locked and his tenants will be put to irreparable 44 O.S.No.3338/1988 hardship and so he has filed this suit seeking afore said relief's.
13. On the other hand, it is the case of the defendants that the boundaries mentioned in the palupatti i.e., Ex.P.1 are correct and the parties are acting as per the recitals contained in the palupatti and they are also enjoying the properties within the boundaries mentioned in the palupatti and the plaintiff has now come up with this suit only with an intention to give trouble to the defendants since, the value of the property has become more in that area. So, according to the defendant the plaintiff has filed this false suit only with an intention to harass the defendant and he has prayed for dismissal of the suit.
14. Now, inorder to prove the case the plaintiff has examined himself as PW-1 and has also examined three other witnesses as PW-2 to PW-4 and has got marked 43 documents at Ex.P.1 to Ex.P.43 and has closed the side. 45 O.S.No.3338/1988 PW-1 in his examination-in-chief has stated about the partition that had taken place in between himself and the defendants and he has also stated that a palupatti was prepared and himself and all his brothers have put their signatures on the said palupatti and he has further stated that only one sister Smt.Chinnamma i.e., defendant No.8 was given a share and other two sisters were not given any share and he has also further stated that Smt.Chinnamma has also put her signature on the said palupatti. The suit property is Sy. No.135/2 of Kormangala Village and according to PW-1 at the time of partition four of the brothers were allotted 20¾ guntas each in Sy. No.135/2 and other persons were given sites measuring 50 X 80 feet each and 4 sites were given to defendant No.3 K.M.Hanumappa, defendant No.5 Sri K.M.Jayappa, defendant No.1 Sri K.M.Lakshmaiah Reddy and defendant No.7 Sri K.M.Ramaiah Reddy and other four brothers were allotted the land. He has further stated that the entire Survey measuring 2.17 acres is having Bangalore Development Authority drain measuring 12 feet in with, 12th 46 O.S.No.3338/1988 in depth, 8 to 9 feet in height to the north and thereafter there is a Bangalore Development Authority road and there are Bangalore Development Authority buildings and he says that due to the existence of the drain one cannot reach the Bangalore Development Authority road lying to the north and according to him there is a road to the south of Sy. No.132/2 and that road has access to his land and all the 8 allottees of shares have to reach their respective lands by the southern road only and except the said road that property is not having any access. He has further stated that he has put up construction in the rear portion of the land and he has leased out the said premises to garment factory and about 350 workers are there in the said factory and the said factory is now enclosed by compound wall and a gate and the people working in the factory will have to use that gate and Bangalore Development Authority road on the south to enter the city and the distance between the factory gate and the road which is towards south is 80 feet and he says that from the gate up to the road he has left the land vacant and now it 47 O.S.No.3338/1988 is used as passage and it is having width of 32 feet. He has further stated that among his brother defendants No.2 Sri K.M.Venkatappa, Defendant No.3 Sri K.M.Hanumappa, defendant No.4 Sri K.M.Munireddy, defendant No.5 Sri K.M.Jayappa, defendant No.1 Sri K.M.Lakshmaiah Reddy and 6th defendant Sri K.M.Krishnappa have put up buildings in their respective shares and only defendant No.7 Sri K.M.Ramaiah Reddy has not put up any building. He has further stated that while defendant No.1 was constructing the building he was dumping materials in the land of the plaintiff and while dumping materials he has sought the permission of the plaintiff and he had assured the plaintiff that after completion of the construction work he would build compound wall along eastern and western side of his site, but the defendant did not keep up his promise and since the defendant did not construct the compound wall, so the plaintiff collected the stones for building the compound wall and at that time the defendant No.1 objected saying that that it was his land. He has further stated that a complaint was 48 O.S.No.3338/1988 filed before the police and he further says that defendant No.1 has leased out his building to the tenants and the people coming to meet the tenants have started parking the vehicle in the land.
15. He has further stated that while he was having discussion with his brother he came to know that there was a wrong description in the schedule in the palupatti while describing the four sites measuring 50 X 80 feet and according to him while describing the site given to defendant No.1 eastern boundary should have been shown as the land allotted to the plaintiff but instead by mistake it is mentioned as to the east defendant No.7 Ramaiah Reddy's site. According to the plaintiff infact the site of the plaintiff is in between the site of 1st defendant and Ramaiah Reddy and he further says that if this description is accepted then the land of Lakshmaiah Reddy will be measuring 80 X 82 feet, but he was only allotted 50' X 80'. He has further stated that other 49 O.S.No.3338/1988 four brothers were allotted lesser area and they were given more properties in other place.
16. He has denied that he was looking after the management of the family after the death of his father. He further says that there was no agreement in respect of the suit property prior to the palupatti again he says that there was an oral agreement and yet again he says that it was not an oral agreement. According to him the oral talks in respect of the suit properties took place on 28.3.1974 and at that time Venkatappa, Munireddy, Hanumappa, himself, Krishnappa, K.N.Jayppa, Lakshmareddy were present and the properties were divided amongst the family members and on 30.3.1974 it was reduced into writing and according to him one Syed Abdulla has written the palupatti and the 2nd defendant dictated the contents to Syed Abdulla and he says that Abdulla informed him about the contents and he accepted it. He further says that he cannot say all the details of the property that was subjected to partition and he further 50 O.S.No.3338/1988 says that about 4 to 5 days prior to the division all the properties were got measured and one Hanumappa measured the properties by referring to the old documents. He further says that he has no documents to evidence the measurement of the properties and according to him the properties included in the palupatti were Sy. No.130, 135/2, 137 and according to him Sy. No.130 measures 6 acres 27 guntas, Sy. No.135/2 is measuring 2 acres 17 guntas and Sy. No.137 measured 2 acres 19 guntas including the kharab. He says that after the partition he did not measure the lands and after the partition all the sharers took possession of their respective shares and he further says that he took possession as per the palupatti dt.30.3.1974 and he commenced construction in the year 1980 to 1982 and he had obtained requisite plan and license and he says that he does not remember in which calendar year he had applied for the licence from Koramangala Group Panchayath and he says that he constructed go-downs, but he says that he cannot say the measurement and he further says it took two years to put up the construction. He has 51 O.S.No.3338/1988 further stated that to the east of the property there is the land of Krishnappa Reddy and that when he put up construction the land of Krishnappa Reddy was vacant and there was no road to Sy.No.135/2 at the time of partition. He has denied that to the north of St.No.135/2, there is a Bangalore Development Authority road and he has denied that when he was constructing the go-down he was getting the construction materials from the northern road and he was storing building materials in the land of Krishnappa Reddy. He admits that in the palupatti the southern boundary of his property is shown as the property of the 1st defendant and to the south of the Lakshmaiah Reddy's property there is Bangalore Development Authority road. He further says that the eastern boundary of the 1st defendants property is shown as the property of the 7th defendant. He has denied that to the west of the 1st defendant property as per the palupatti there is the property of 5th defendant. But according to him there is the property of 4th defendant. He says that Sy.No.137 belongs to him and the road was formed by Bangalore Development Authority prior to 52 O.S.No.3338/1988 1970 and he says that he does not have any records to show the formation of the road. He has denied that for the convenience of the sharers it was agreed that there should be a road towards the northern side and southern side of the Sy. No.135/2. PW-1 has denied that he had agreed for formation of Bangalore Development Authority road in the middle of Sy. No.135/2. Further, he admits that in the plan of the building he has shown the property of the 1st defendant to the south of his property and he also admits that in the plan he has shown to the east of his land there is a property belonging to Krishnappa Reddy and to the west there is property belonging to the 4th defendant. He has admitted that he has put up compound wall to the southern side of his property in Sy. No.135/2. he has denied that his share in Sy. No.135/2 is situated to the north of the land of the 1st defendant. He has further stated that earlier to the partition, one or two days before the boundary stones were fixed and he further says that all the brothers were consulted and boundary stones were fixed and all the brothers have measured the land. He 53 O.S.No.3338/1988 has further stated that 6th defendant, put up construction three to four years after the plaintiff put his construction and he says that he cannot say when exactly the 4th defendant has put up his construction. He has denied that towards the northern side the factory people are moving and he has denied that some space has been left for movement and he says that there is a drainage of the Bangalore Development Authority on which people will move. He has further stated that the 1st defendant has put up construction in the year 1988 and he has denied that the entrance openings and generator is on the eastern side of the 1st defendant's property. He has denied that the 1st defendant has got a passage on the eastern side to reach his property. He has further stated that the 1st defendant was given property having boundaries as mentioned in the palupatti and he further admits that all the parties to the palupatti were given property having boundaries as mentioned there in. So, at this juncture only, if we look to this admission given by the plaintiff, he clearly admits that all the persons have been 54 O.S.No.3338/1988 given the properties as per the boundaries mentioned in the palupatti. Now, if we look to the palupatti which has been produced at Ex.P.1, it also clearly discloses the boundaries of the properties that have been given to the share of each person. If we look to item No.2 page No.14 of the palupatti it is mentioned as under:-
" ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, ¨ÉÃUÀÆgÀÄ ºÉÆç½ PÉÆÃgÀªÀÄAUÀ® UÁæªÀÄPÉÌ ¸ÉÃjgÀĪÀ ¸ÀªÉð ¸ÀA§gï 135B2 vÉÆÃlzÀ d«QãÀÄ J µÉqÀÆå¯ï ºÉ¸Àj£À°è SÁvɬÄzÀÄÝ zÀQëtzÀ PÀqÉ §ºÀÄvÀézÀ°è gÀ¸ÉÛUÀ¼À£ÀÄß ©lÄÖ ¥ÀǪÀð¥À²ÑªÀÄ 50 Cr GvÀÛgÀ zÀQët 80 Cr G¼Àî vÉÆÃlzÀ d«ÄãÀÄ ªÀÄvÀÄÛ F d«Ää£À°ègÀĪÀ vÉAV£À ªÀÄgÀUÀ¼ÀÄ ¸À¥ÉÇÃl ªÀÄgÀUÀ¼ÀÄ ZÉÃ¥É VqÀUÀ¼ÀÄ ªÀÄvÀÄÛ EvÀgÀ ªÀÄgÀUÀ¼ÀÄ EgÀĪÀ vÉÆÃlzÀ d«ÄäUÉ ZÉPÀÄ̧A¢× ¥ÀǪÀðPÉÌ B- J¥sï µÉqÀÆå¯ïzÁgÀ£À vÉÆÃlzÀ d«ÄãÀÄ, zÀQëtPÉÌ ¸ÀªÉð £ÀA.137£Éà £ÀA§j£À £ÀªÀÄäUÀ¼À d«ÄãÀÄ."
Further if we look to the 'D' schedule that is mentioned on page No.16 of palupatti and page No.7 item No.3 it is as under:-
LlA £ÀA.1 "¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ ¨ÉÃUÀÆgÀÄ ºÉÆç½ PÉÆÃgÀªÀÄAUÀ®zÀ ¸ÀªÉð 116B2 ªÀÄvÀÄÛ 117B11£Éà £ÀA§gï «.¦. £ÀA.4B d«ÄãÀÄUÀ¼ÀÄ ¯ÉÃgï PÉ.J¸ï. 55 O.S.No.3338/1988 ªÀÄĤ±Á«ÄgÉrØ ªÀÄvÀÄÛ PÉ.JA.ªÉAPÀl¥Àà£ÀªÀgÀÄUÀ¼À ºÉ¸jÀ £À°® SÁvÉAiÀiÁVzÀÄÝ PÁA¥ËAqï UÉÆÃqÉ ºÁQgÀĪÀ d«Ää£À°è EªÀgÀ »¸ÉìUÉ §A¢gÀĪÀ ZÉPÀÄ̧A¢. ¥ÀƪÀðPÉÌ B- ¹Ln© ¸ÉlÄÏ ¥À²ÑªÀÄPÉÌ MªÀÄävÀ¢A¢ ©nÖgÀĪÀ 17 Cr gÀ¸ÉÛ, GvÀÛgÀPÉÌ B- ©nÖgÀĪÀ zÁj, zÀQëtPÉÌ B- EzÉà ¸ÀªÉð £ÀA§j£À°® ©nÖgÀĪÀ gÀ¸ÉÛ F ªÀÄzÀså¬ÄgÀĪÀ ¥ÀƪÀð ¥À²ÑªÀÄ 50 CrUÀ¼ÀÄ GvÀÛgÀ zÀQët 107 CrUÀ¼ÀļÀî PÁA¥ËAqï ºÁQgÀĪÀ ¸ÉÊlÄ ªÀÄvÀÄÛ ªÀÄ£É."
LlA £ÀA.3 "¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ ¨ÉÃUÀÆgÀÄ ºÀÆç½ PÉÆÃgÀªÀÄAUÀ® UÁæªÀÄPÉÌ ¸ÉÃVgÀĪÀ ¸ÀªÉð 135B2£Éà £ÀA§gï PÉ.JA.ªÉAPÀl¥À£à ÀªÀgÀ ºÉ¸Àj£À°è SÁvɬÄzÀÄÝ F d«Ää£À°è EªÀgÀ »¸ÉìUÉ §A¢gÀĪÀ vÉÆÃlzÀ d«ÄäUÉ ZÉPÀÄ̧A¢. ¥ÀǪÀðPÉÌ B- E µÉqÀÆå¯ïzÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ vÉÆÃl , ¥À²ÑªÀÄPÉÌ B- © ¥ÉëqÀÆå¯ï zÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ vÉÆÃl, GvÀÛgÀPÉÌB- ¹Ln© ZÁ£À¯ï ªÀÄvÀÄÛ zÀQëtPÉÌ B- f ¥ÉëqÀÆå¯ïzÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ ¥ÀǪÀð ¥À²ª Ñ ÀÄ 50 Cr GvÀÛgÀ zÀQët 80 CrUÀ¼ÀļÀî vÉÆÃlzÀ d«ÄãÀÄ. F ªÀÄzsÉå¬ÄgÀĪÀ ¸ÀĪÀiÁgÀÄ 20 3/4 UÀÄAmÉAiÀÄ°ègÀĪÀ ¸À¥ÉÇÃl , ZÉÃ¥É , vÉAV£À ªÀÄgÀ VqÀªÀÄgÀUÀ¼ÀÄ EgÀĪÀ d«ÄãÀÄ.
Under item No.5 the share of K.M.Venkatappa has been given(Page No.20 of palupatti) LlA £ÀA.5B-56 O.S.No.3338/1988
"¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, ¨ÉÃUÀÆgÀÄ ºÀÉÆç½ PÉÆÃgÀªÀÄAUÀ® UÁæªÀÄPÉÌ ¸ÉÃjzÀ ¸ÀªÉð £ÀA§gï 135B2 £Éà £ÀA§gï PÉ.JA.ªÉAPÀl¥Àà£ÀªÀgÀ ºÉ¸Àj£À°è SÁvɬÄzÀÄÝ F d«Ää£À ¥ÉÊQ EªÀgÀ »¸ÉìUÉ §A¢gÀĪÀ vÉÆÃlzÀ d«ÄäUÉ ZÉPÀÄ̧A¢. ¥ÀƪÀðPÉÌB- ¹Ln© ¸ÉÊmïì CxÀªÁ aPÀÌ®è¥Àà£À ªÀÄUÀ ¥Á¥ÀtÚ£À d«ÄãÀÄ, ¥À²ÑªÀÄPÉÌB- 3 ¥ÉëqÀÆå¯ïzÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ vÉÆÃl, GvÀÛgÀPÉÌ B- ¹Ln© ZÁ£À¯ïì, zQëtPÉÌ ºÉZï ¥ÉëqÀÆå¯ïzÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ ¥ÀǪÀð¥À²ÑªÀÄ 50 Cr GvÀÛgÀ zÀQët 80 CrUÀ¼ÀÄ G¼Àî vÉÆÃlzÀ d«ÄãÀÄ. F ªÀÄzsÉå¬ÄgÀĪÀ ¸ÀĪÀiÁgÀÄ 20 3/4 UÀÄAmÉAiÀÄ°ègÀĪÀ vÉAUÀÄ, ¸À¥ÉÇÃl, ZÉÃ¥ÉVqÀ ªÀÄgÀUÀ½gÀĪÀ vÉÆÃlzÀ d«ÄãÀÄ."
On page No.22 the property that has fallen to the share of the person who has got 'A' schedule has been clearly mentioned as under:-
"¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, ¨ÉÃUÀÆgÀÄ ºÀÉÆç½ PÉÆÃgÀªÀÄAUÀ® UÁæªÀÄPÉÌ ¸ÉÃjzÀ ¸ÀªÉð £ÀA§gï 135B2 vÀÉÆÃlzÀ d«ÄãÀÄ J ¥ÉëqÀÆå¯ïzÁgÀ£À ºÉ¸Àj£À°è SÁvɬÄzÀÄÝ zÀQëtzÀ PÀqÉ §ºÀÄvÀézÀ°è gÀ¸ÉÛUÀ¼À£ÀÄß ©lÄÖ ¥ÀǪÀð¥À²ÑªÀÄ 50 Cr GvÀÛgÀ zÀQët 80 Cr G¼Àî vÉÆÃlzÀ d«ÄãÀÄ ªÀÄvÀÄÛ F vÉÆÃlzÀ d«Ää£À°ègÀĪÀ vÉAV£À ªÀÄgÀ, ¸À¥ÉÇÃl ªÀÄgÀ, ZÉÃ¥É VqÀ ªÀÄvÀÄÛ EvÀgÀ VqÀªÀÄgÀUÀ¼ÀÄ EgÀĪÀ vÉÆÃlzÀ d«ÄäUÉ ZÉPÀÄ̧A¢. ¥ÀǪÀðPÉÌ B- f µÉqÀÆå¯ïzÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ vÉÆÃlzÀ d«ÄãÀÄ, ¥À²ÑªÀÄPÉÌB- ¹ ¥ÉëqÀÆå¯ïzÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ d«ÄãÀÄ."
And on page No.24 item No.2 57 O.S.No.3338/1988 " ¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, ¨ÉÃUÀÆgÀÄ ºÀÉÆç½ PÉÆÃgÀªÀÄAUÀ® UÁæªÀÄPÉÌ ¸ÉÃjzÀ ¸ÀªÉð £ÀA§gï 135B2 vÉÆÃlzÀ d«ÄãÀÄ J ¥ÉëqÀÆå¯ïzÁgÀ£À ºÉ¸Àj£À°è SÁvɬÄzÀÄÝ zÀQëtzÀ PÀqÉ §ºÀÄvÀézÀ°è gÀ¸ÉÛUÀ¼À£ÀÄß ©lÄÖ ¥ÀǪÀð¥À²ÑªÀÄ 50 Cr, GvÀÛgÀ zÀQët 80 Cr G¼Àî vÉÆÃlzÀ d«ÄãÀÄ ªÀÄvÀÄÛ F d«Ää£À°ègÀĪÀ vÉAV£ÀªÀÄgÀUÀ¼ÀÄ, ¸À¥ÉÇÃl ªÀÄgÀUÀ¼ÀÄ, ZÉÃ¥ÉVqÀ ªÀÄvÀÄÛ EvÀgÉ VqÀªÀÄgÀUÀ¼ÀÄ EgÀĪÀ vÉÆÃlzÀ d«ÄäUÉ ZÉPÀÄ̧A¢. ¥ÀǪÀ±ÀðPÉÌB- JZï ¥ÉëqÀÆå¯ïzÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ vÉÆÃlzÀ d«ÄãÀÄ, ¥À²ÑªÀÄPÉÌ B- J¥sï ¥ÉëqÀÆå¯ïzÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ vÉÆÃlzÀ d«ÄãÀÄ, ÄvÀÛgÀPÉÌ B- 3 ¥ÉëqÀÆå¯ïzÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ vÉÆÃlzÀ d«ÄãÀÄ, zÀQëtPÉÌB- ¸ÀªÉð 137£Éà £ÀA§gï£À £ÀªÀÄäUÀ¼À d«ÄãÀÄ.
Page No.26 item No.2 "¨ÉAUÀ¼ÀÆgÀÄ zÀQët vÁ®ÆèPÀÄ, ¨ÉÃUÀÆgÀÄ ºÀÉÆç½ PÉÆÃgÀªÀÄAUÀ® UÁæªÀÄPÉÌ ¸ÉÃjzÀ ¸ÀªÉð £ÀA§gï 135B2 vÉÀÆÃlzÀ d«ÄãÀÄ Ê ¥ÉëqÀÆå¯ïzÁgÀ£À ºÉ¸Àj£À°è SÁvɬÄzÀÄÝ zÀQëtzÀ PÀqÉ gÀ¸ÉÛUÀ¼À£Àß §ºÀÄvÀézÀ°® §¦lÄÖ ¥ÀÅÁªÀð ¥À²ÑªÀÄ 50 Cr GvÀÛgÀ zÀQët 80 Cr G¼Àî vÉÆÃlzÀ d«ÄãÀÄ ªÀÄvÀÄÛ F d«Ää£À°®gÀĪÀ vÉAV£À ªÀÄgÀUÀ¼ÀÄ, ¸À¥ÉÇÃl ªÀÄgÀUÀ¼ÀÄ, ZÉÃ¥É VqÀUÀ¼ÀÄ ªÀÄvÀÄÛ EvÀgÀ VqÀªÀÄgÀUÀ¼ÀÄ EgÀĪÀ vÉÆÃlzÀ d«ÄäUÉ ZÉPÀÄ̧A¢. ¥ÀǪÀðPÉÌB- ¹Ln© gÀ¸ÉÛ, ¥À²ÑªÀÄPÉÌB- f ¥ÉëqÀÆå¯ïzÁgÀ£À ¨sÁUÀPÉÌ ºÉÆÃVgÀĪÀ vÉÆÃlzÀ d«ÄãÀÄ, GvÀÛgÀPÉÌ B- E ¥ÉëqÀÆå®ï zÁgÀ£À vÉÆÃlzÀ d«ÄãÀÄ, zÀQëtPÉÌB- ¸ÀªÉð 137£Éî £ÀA§gï £ÀªÀÄäUÀ¼À d«ÄãÀÄ."
So, by looking to Ex.P.1 and the evidence of PW-1 it clearly goes to show that each person has got share in Survey 58 O.S.No.3338/1988 No.135/2 and the boundaries have been specifically mentioned.
17. Now, if we look to the further evidence of PW-1, he has stated that his elder sisters Nanjamma and Nagamma were not given any shares and according to him at the time of palupatti his sisters had no right in the property of their father and so they did not demand any partition. He has denied that he has got the signature of the defendants on the letter alleging that the share has been given to his sisters also. He further says that he has not discussed with his brother after palupatti. He has further admitted that he has put up construction in the entire property which has come to his share as per the palupatti. Later he changes his version and says that he has left some vacant space. He further says that he cannot say the date, month and calendar year in which the 1st defendant interfered and he says that he does not remember whether the 1st defendant had lodged a complaint against him before the police on 9.5.88 and he has 59 O.S.No.3338/1988 denied that the police warned him on the basis of the complaint filed by the defendant. He has denied that even though the said portion does not belong to him, he has filed a false suit.
18. So, on carefully going through the evidence of this PW-1, it clearly goes to show that he himself has produced the palupatti and he admits that the boundaries mentioned in the palupatti are correct and he also admits that each person are in possession of the properties that have fallen to their share as per the measurement. So, when the plaintiff himself admits all these things, then he cannot now complain that the boundaries mentioned in the palupatti are not proper. PW-1 admits that he has constructed in his property to the full extent, but later changes his version that he has left some vacant space, but he is not in a position to say to what extent he has left the open space and in which direction. So, the evidence of PW-1 in this regard stating that he is the owner of the suit schedule property as per the boundaries mentioned 60 O.S.No.3338/1988 by him in the plaint and that he is in possession of the same cannot be accepted.
19. Now, if we look to the evidence of PW-2 K.C.Vijay Kumar he is none other than the son of the plaintiff and he has also stated that the portion shown as MNRS in the plaint sketch belongs to them and he has stated regarding the relief's that are sought by his father and through him the documents from Ex.P.27 to Ex.P.43 have been got marked by the learned counsel for the plaintiff. In the cross-examination he has admitted that as per Ex.P.32 the Assistant Engineer, BESCOM had given reply to him and had also requested him to produce necessary documents in support of his claim. He says that he produced the status quo order passed by the Court and he took acknowledgement for having produced the document. He admits that the properties were divided between his father and others as per Ex.P.1 palupatti dt.30.3.1974. He admits that the dispute is only in respect of survey No.135/2 and that survey Number according to him 61 O.S.No.3338/1988 was divided among eight persons and he admits that the electric power was connected to the defendant's property in the year 1988 prior to the filing of this suit and he also admits that the constructed building consists of 7 floors and they are given on rent basis. He has further admitted that after the filing of the suit, the parties to this suit have made additional construction in respect of their properties. He has denied that there is no any alternative way for the defendant No.1 to approach his building except the MNRS portion. He adds that there is a separate road for him to approach the building which is the main road situated towards the southern side of his building.
20. In the further cross-examination PW-2 has stated that he was 7 years old when the partition took place between his father and uncle during 1974, he has denied that he has neither seen the land nor measured the land. He has admitted that there is no mention in Ex.P.2 inorder to show that it has been prepared by him. He says that the original 62 O.S.No.3338/1988 palupatti is prepared on a stamp paper, but it is not registered and he says that the original palupatti is not with them, but it is with his senior uncle K.M.Venkatappa. he has denied that K.M.Venkatappa was not managing the affairs of the family, but his father himself was managing the affairs of the family. He has admitted the boundaries of the defendant No.4 and Lakshmaiah Reddy's property and he further adds that to the south of Lakshmaiah Reddy's property there is Bangalore Development Authority road towards the south towards the south. He has denied that his father has constructed building over the entire area measuring 20 ¾ guntas. He further admits that in the portion of vacant space they have put up staircase. He has denied that towards the south of the plaintiff's property, there is no road and there is only the property of Lakshmaiah Reddy. He has admitted that as per the recitals of palupatti towards east of Lakshmaiah Reddy's property it is mentioned as K.M.Ramaiah Reddy's property, but he says that it is wrong. He has denied that there is no mention of road towards the south of Lakshmaiah 63 O.S.No.3338/1988 Reddy's property as per the palupatti. He has denied that the drainage has been built at a height of 2 ½ feet from the ground level, but he says that it is 7 feet. He has further denied that the tenants of the defendants are in occupation of the properties of defendant No.2 and 4 and they are passing through northern side.
21. PW-3 is Satish Rustagi and he has stated that he is the manager of New Fashion Creator and according to him the entry to the premises is from southern side and there is no access to it from the northern side and according to him there is a drainage of about 8 feet from the ground level. In the cross-examination he has denied that the entry to the factory is from the northern side and he has denied that the workers going to the factory are moving from the northern gate. He has admitted that the drainage on the northern side is a closed drainage.
64 O.S.No.3338/1988
22. Now, if we look to the evidence of PW-4 Syed Althaf he has stated that his father had signed as a witness on Ex.P.1 Palupatti and he has identified his father's signature at Ex.P.1(a) and (b). In the cross-examination he says that he has not received summons from the Court and he has not given any documents to show that Syed Abdulla is his father. He further says that he does not know when his father retired and he says that he does not know whether his father possessed any license for writing the deeds or not and he says that he had seen the signature of his father on Ex.P.1 for the first time in Court on 3.8.2001 and he further says that he does not know the contents of Ex.P.1 and he also says that when his father put his signature on Ex.P.1 he was not present as a witness. He says that Chinnaswamy Reddy's driver and one official of the court had came and told him that he has to give evidence before court in this case. He says that he has not seen any other person signing like his father. 65 O.S.No.3338/1988
23. Now if we look to the other documents that are produced by the plaintiff, the plaintiff has produced Ex.P.2 hand sketch, Ex.P.3 to 18 are the photographs with negatives, seven photographs are marked at Ex.P.19 to 25, certified copy of sale deed dt.21.8.87 is at Ex.P.26, copy of complaint dt.26.11.07 is at Ex.P.27, copy of complaint given to BESCOM dt.27.11.07 is at Ex.P.28, copy of complaint dt.10.12.07 is at Ex.P.29, copy of complaint given to BESCOM dt.17.12.07 is at Ex.P.30, copy of complaint to police dt.17.12.07 is at Ex.P.31, letter addressed by BESCOM to the plaintiff is at Ex.P.32, copy of complaint to BESCOM dt.11.1.08 is at Ex.P.33, endorsement given by police dt.31.1.08 is at Ex.P.34, letter addressed to BESCOM is at Ex.P.35, copy of power sanction sketch and estimation, khatha extract dt.11.7.08 is at Ex.P.36, six photographs are marked at Ex.P.37 to 42 and Ex.P.43 is the compact disk.
24. Now, if we look to the evidence on the part of the defendants, the defendants have examined defendant No.1 as 66 O.S.No.3338/1988 DW-1 and DW-1 in his evidence has reiterated the contentions taken by him in the written statement and in the cross-examination he has stated that he has signed the palupatti which is at Ex.P.1 and in it the 'G' schedule properties were allotted to him and he says that item No.2 of schedule 'G' was also allotted to him which is the site and he says that there is a road to the south and he further says that he has constructed the building on that site and the built up area is 28 feet east-west and 67 feet north-south. He has further stated that as per the palupatti, the plaintiff was allotted 20 acres ¾ guntas in survey No.135/2 and he volunteers that it was not as per actual measurement. He says that there is a big drain in the plaintiff's property. He admits that the building which is towards the northern side of his building is belonging to the plaintiff. He has stated regarding the properties that were allotted to the share of each person as per Ex.P.2. He has denied that all the eight allottees have road towards the northern side. He has denied that the eastern boundary of his plot is wrongly shown has 67 O.S.No.3338/1988 gone to the allottee of 'H' schedule. He has denied that the other allottees have no other road and if the southern road is blocked, then they will be landlocked.
25. Now, if we look to the documents that are produced by the defendants, the defendant has produced 8 photographs at Ex.D1 to D8, Sketch along with written statement of DW-1 at Ex.D9, another set of 11 photographs are marked at Ex.D10 to 21 and corresponding negatives of Ex.D10 to D21 are marked at Ex.D10(a) to Ex.D.21(a) respectively, Photographer bill is at Ex.D22, comparative statement showing the individual extent of all the properties as per palupatti dt.30.3.74 is at Ex.D23, certified copy of the registered sale deed dt.27.5.88 is at Ex.D24, certified copy of the registered sale deed dt.26.9.88 is at Ex.D25 and two photographs are at Ex.D26 and D27.
26. The learned counsel for the plaintiff during the course of argument has relief upon the decision reported in:- 68 O.S.No.3338/1988
1. 1940 Bombay 605 (Nooirudin Esmailji Kurwa V/s.
Mohamed Umar Sabrati and others)
2. AIR 1961 - 379 (Gerela Kalita and another V/s. Dharmeswar Saikia and others)
3. KLJ 1987 - 379 (Tinna Boyi @ Kariya and others V/s. K.Venkatappa)
4. ILR 1987 - 3873 (Veerabhadrappa V/s. Bashettappa)
5. 2010(11) SCC 514 (Subhadra and others V/s. Thankam)
6. 2013(3) SC 801 (Joseph John Peter Sandy V/s. Veronica Thomas Rajkumar and another)
27. Apart from relying on the above decision the learned counsel for the plaintiff submitted that there was mutual mistake of facts between the parties and so the boundaries are wrongly mentioned in Ex.P.1 and they are required to be corrected and each person is in possession of the properties that have been granted to their share and the only dispute is in respect of Sy. No.135/2 of Koramangala Village, Begur Hobli, Bangalore South Taluk and the boundaries have not been properly mentioned in the palupatti. So, basing his arguments on the afore said rulings and also the evidence led 69 O.S.No.3338/1988 by him, he has prayed to answer issue No.1, 2, 3 and 5 in the affirmative and in favour of the plaintiff.
28. On the other hand, the learned counsel for the defendant submitted that the boundaries as mentioned in Palupatti which is at Ex.P.1 are correct and they have been acted upon by the parties and the boundaries that are mentioned by the parties in the plaint no where tallies with the boundaries that are mentioned in palupatti and also in other documents. He submitted that after having enjoyed the properties for such a long time, the plaintiff has now come up with the suit only with an intention to harass the defendants. The learned counsel for the defendant in support of his arguments has relied upon the following decisions:-
1. 2013(3) SC 801 (Joseph John Peter Sandy V/s.
Veronica Thomas Rajkumar and another)
2. AIR 1972 SC 2685 (Ram Saran and another V/s. Smt. Ganga Devi)
3. AIR 1975 All 395 (Jagdish V/s. Rajendra) 70 O.S.No.3338/1988
4. AIR 1972 Mysore P.184 (Smt.Kamalamma V/s. Kenche Gowda and others)
5. AIR 1948 (Privy Council) P.207 (The Palestine Kupat Am Bank Co-operative Society Ltd., V/s. Government of Palestine and others) So basing his arguments on the afore said decisions and evidence he has prayed to answer the issues No.1, 2, 3 and 5 in the negative and against the plaintiff.
29. Now, in the light of the arguments advanced by the learned counsel for the plaintiff and the learned counsel for the defendant and on careful perusal of the entire oral and documentary evidence and also the decisions relied upon by both the counsel, it becomes clear that there is no dispute between the parties in respect of the relationships and there is also no dispute about the fact that the palupatti was prepared on 28.3.74 and it was reduced into writing on 30.3.74, it is clear from the materials that as per Ex.P.1 the family of the plaintiff and defendants has been divided and so 71 O.S.No.3338/1988 far as regards other properties are concerned, all the parties are enjoying their shares and the dispute is only in respect of Survey No.135/2 of Koramangala Village, Begure Hobli, Bangalore South Taluk. It is clear from the records that the plaintiff, defendant No.2, 4 and 6 were each allotted 20 acres ¾ guntas and they are towards the northern portion of the Sy.No.135/2which is described in the schedule as 'A' boundary and the southern portion was allotted to defendant No.1, 3, 5 and 7 and it approximately measures 50 feet X 80 feet and the schedules have been furnished in the Palupatti denoted by letters GCFH. It is clear from the evidence and also the documents produced by the defendants that in the 'G' schedule property allotted to 1st Defendant a multi storied building has been constructed and the plaintiff has also constructed the huge building in his own premises and has let it out to the tenants and the defendant has let out to Infosys a seven storied building which is clear from Ex.D9 that three plots were allotted to plaintiff but no exact measurements were fixed and the roads are also shown on all 72 O.S.No.3338/1988 the four sides. It is clear from Ex.P.1 Palupatti that 'D' schedule which is at Page No.16 item No.3 is the suit property and in Palupatti there is mention of Sy. No.135/2 and it is clear. On careful perusal, it may be noted that there dispute only between the plaintiff and defendant No.1 in respect of Sy. No.135/2 and other defendants are not concerned about the suit and they are in possession and enjoyment of the properties that have been allotted to their shares. On perusal of Ex.D9 it clearly supports the palupatti which is at Ex.P.1, but whereas the sketch that is produced by the plaintiff does not support the Palupatti. On going through the 'D' schedule and the sketch it may be noted that MNRS portion has been altered and it is in respect of the suit property. Though the plaintiff alleges that wrong boundaries have been mentioned in the Palupatti, which is of the year 1974, but no materials are produced to show that wrong boundaries have been mentioned. It may also be noted that none of the brothers except the plaintiff alleges that there is a mistake in the boundaries and it may be seen that the Palupatti has been 73 O.S.No.3338/1988 acted upon and each person is in possession of the property that are allotted to their share as per Palupatti. There is nothing to show that the plaintiff is the owner and possessor of MNRS portion. It may also be noted that Ex.P.2 which is the sketch produced by the plaintiff it is not certified by any authority. So when the plaintiff has filed this suit seeking the relief of declaration and injunction, then the burden is upon him to prove his case and he cannot take the weakness of other side. For this proposition of law I gain the support of the ruling reported in AIR 2009 SC 2966 in the case of "T.K.Mohammed Abubucker (D) through L.Rs., & Others .Vs. P.S.M.Ahamed Abdul Khader & Others", wherein their Lordships have held as under:
" (C) Evidence Act (1 of 1872), Section 101 - Suit for declaration of title and possession - Burden of proof is on plaintiff to make out his title and entitlement to possession - He cannot succeed on any alleged weakness in title or possession of defendant ".74 O.S.No.3338/1988
It has been held in AIR 1998 Orissa 117 in the case of "Sankar Kumar & Another V/s. Mohanlal Sharma", by his lordship has held as under:-
"(B) Specific Relief Act (47 of 1963), Section 39 - Suit for mandatory injunction
- Burden of proof - Is on the plaintiff to prove his owner case - Failure of defendant to prove his case - Does not entitle the plaintiff for decree of mandatory injunction".
30. So, by looking to the oral evidence of PW-1 to 4 and the documents produced by the plaintiff and on going through the evidence of DW-1 and the documents produced by the defendant and on careful perusal of the decisions relied upon by both the counsels, I am constrained to hold that the plaintiff has failed to prove that MNRS portion is allotted to the plaintiff under partition dt.28.3.1974 and 30.3.74 and the plaintiff is in exclusive possession of the said portion and I am also constrained to hold that the plaintiff has failed to prove that the palupatti dt.30.3.1974 does not contain proper boundaries in respect of Sy. No.135/2 and it 75 O.S.No.3338/1988 requires rectification and at the same time I am constrained to hold that the defendant No.1 and other defendants have proved that the area namely MNRS exclusively belongs to defendant No.1 and it is in exclusive possession and enjoyment of his share as mentioned in palupatti and it is correct. There is nothing to show that the boundaries mentioned in Ex.P.1 Palupatti are wrong and it is due to mutual mistake of parties and boundaries have been wrongly mentioned without any intention on the part of the parties. There is also nothing to show that the said mistake is the out come of fraud and it may be noted that it is not the case of the plaintiff that he has come to know recently about the mentioning of the wrong boundaries is due to bonafide mistake. So, on going through Ex.P.1 the clear intention of the parties has been mentioned and there is nothing to show that the mentioning of the wrong boundaries is either by fraud or by mutual mistake of parties and it is due to undue influence. So, under such circumstances, I am constrained to hold that the rulings that are relied upon by the learned 76 O.S.No.3338/1988 counsel for the plaintiff with due respect to their lordships are not helpful to the plaintiff in proving the issue No.1 to 3 and
5. On the other hand the rulings that are relied upon by the learned counsel for the defendant are aptly applicable to the facts and circumstances of the case. Accordingly, I answer issue No.1 to 3 in the negative and against the plaintiff and issue No.5 in the affirmative and infavour of the defendant No.1.
31. ISSUE NO.4:- The Plaintiff in his plaint has stated that the defendant No.1 has started to interfere in his peaceful possession and enjoyment of MNRS possession and it is the only ingress and egress for the plaintiff to approach to his property. On the other hand, it is the case of the defendant No.1 that MNRS portion does not belong to the plaintiff and it is not in his possession. Inorder to prove the case, the plaintiff has examined himself as PW-1 and other three witnesses as PWs.2 to 4 and has got marked 43 documents at Ex.P.1 to Ex.P.43. The defendants on the other 77 O.S.No.3338/1988 hand have examined defendant No.1 as DW-1 and he has clearly stated that MNRS portion belongs to him and his evidence is in accordance with the recitals mentioned in Ex.P.1 and also Ex.D9. The plaintiff has also not produced any materials to show that he is in lawful possession of MNRS. So, unless the plaintiff proves that he is in lawful possession MNRS portion and it is the only ingress and egress for the plaintiff to approach his property, then he cannot complain of any interference by Defendant No.1. Hence, under such circumstances, I am constrained to hold that the plaintiff has failed to prove the unlawful interference by Defendant No.1 in the MNRS area. Accordingly, I answer issue No.4 in the negative and against the plaintiff.
32. ISSUE NO.6:- The defendant No.1 in his written statement has contended that there is no opening for the building to southern side except on the eastern side. Inorder to prove the case, the defendant has examined himself as DW.1 and has got marked 27 documents at Ex.D1 to Ex.D27 78 O.S.No.3338/1988 and has closed the side. If we carefully go through Ex.P.1 Palupatti and also Ex.D9 which is produced by the defendant and also the photographs produced, it becomes clear that there is no openings for the building on the southern side except on the eastern side. The map annexed to the palupatti also discloses the roads that are there to the properties of the plaintiff and the defendants. The boundaries of the properties have also been clearly mentioned. It may be noted that the plaintiff has produced Ex.P2, but it has not been issued by any competent authority. The plaintiff has also not produced any materials to show that there are other openings for the building except on the eastern side. Hence, by looking to the materials that are placed before me, I am constrained to hold that the defendant No.1 has proved that there are no openings for the building on the southern side except on the eastern side. Accordingly, I answer issue No.6 in the affirmative and infavour of the defendant No.1. 79 O.S.No.3338/1988
33. ISSUE NO.7:- The defendant No.1 in his written statement has contended that the court fee paid is not proper. Now, if we look to the plaint that is produced by the plaintiff the plaintiff has valued the suit at Rs.40,000/- and the plaintiff has claimed the relief of declaration and permanent injunction and he has paid Court fee of Rs.2,000/- under Section 24(b) of the Karnataka Court fees and suits valuation Act and for rectification of the Palupatti he has paid the court fee of Rs.200/- and for the relief of mandatory injunction he has paid court fee of Rs.1,000/- and Rs.25/- as additional court fee. So, on going through the provisions of the Karnataka Court Fees and Suits Valuation Act, I am constrained to hold that the Court fee paid by the plaintiff is proper and it is sufficient. Accordingly, I answer this issue in the affirmative and infavour of the plaintiff.
34. ADDL. ISSUE NO.1 FRAMED ON 16.11.1995:- The plaintiff in his plaint has stated that his suit is maintainable 80 O.S.No.3338/1988 in law. The plaintiff has prayed for the relief of declaration that he is the owner of the suit schedule property and he has also sought for rectification that the boundaries mentioned in the Palupatti are not proper and he has also consequently prayed for an injunction restraining the defendant No.1 from interfering in his peaceful possession and enjoyment of the suit schedule property and he has also sought for mandatory injunction directing the defendant No.1 and Defendant No.9 to remove the transformer fixed in the said property.
35. The learned counsel for the defendant has relied upon the ruling reported in AIR 1975 ALL 395 at point (E) wherein it is held by his lordships that when the plaintiff is not in possession of the property on the date of suit for injunction, he is not entitled to an injunction restraining the defendant from interfering with his possession. It may be noted that the plaintiff has not sought possession of any property. It has been held in AIR 1972 Supreme Court 2685 by their lordships of the Supreme Court as under:- 81 O.S.No.3338/1988
"Specific Relief Act (1877), S.42- Where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable"
But however it has been held in AIR 1961 Assam 15 by his lordship as under:-
"It is true that in this case this mistake has been discovered after a long time, after the first suit was instituted by the plaintiff which came up to the High Court and that decree in the suit was executed; but , in my opinion, so far as the provision of this section are concerned, there cannot be any time limit for the discovery of the mistake of the fraud. At any time when a mistake is discovered or a fraud comes to light, it is open to the parties affected to come to court and institute a suit for the rectification of the mistake in the instrument"
It has been held in Karnataka Law Journal 1987 at page 379 by his lordship Justice K.A.Swami in Tibba Boyi @ kariya and others V/s. K.Venkatappa as under:- 82 O.S.No.3338/1988
"SPECIFIC RELIEF ACT, 1963-S 26-
Relief of declaration of title is an independent relief; does not depend upon Section 26- Without seeking a relief of rectification of mistake in the document, plaintiff if able to prove his title to suit property, it is permissible in law and Court has undoubted jurisdiction to pass a decree declaring title of plaintiff to suit property s claimed in plaint-Scope of S.26 Explained.
So, under such circumstances, when the plaintiff's suit is for declaration and rectification and for injunction and mandatory injunction it cannot be thrown out stating that the suit is not maintainable. Hence, I hold that the plaintiff has proved that the suit filed by him is maintainable in law and hence I answer this issue in the affirmative and in favour of the plaintiff.
36. ADDL. ISSUE NO.2 FRAMED ON 16.11.1995:-
The plaintiff has stated in his plaint that he came to know about the mistake recently and so he has filed the suit for 83 O.S.No.3338/1988 declaration and injunction and also for rectification. It may be noted that the Palupatti which is at Ex.P.1 has taken place on 30.3.1974 and the suit has been filed on 18.7.1978. So, the suit has been filed after a lapse of about 14 years. The plaintiff either in his plaint or in his evidence has no where stated as to when he came to know about the mistake in the boundaries of the palupatti. There is also nothing to show that the said mistake is the out come of fraud or undue influence or it was not intentional. So, under such circumstances, even though the learned counsel for the plaintiff has relied upon the decision reported in AIR 1961 ASSAM 15 at page No.14 where in his Lordship has held that there is no time limitation for the rectification of the instrument and the right to sue depends upon the particular, facts of case and relief sought and the right to sue accrues only when cause of action arises and the cause of action arises only on any contract or other instrument as held up his lordship Justice K.A.Swamy, 1987 KLJ page 3873. But since the suit has not been filed within three years from the 84 O.S.No.3338/1988 date of the instrument, then as per Section 56 to 58 of the limitation Act, the suit becomes time barred. Hence, I hold that the suit of the plaintiff is hit by law of limitation. Hence, I hold that the plaintiff has failed to prove that the suit is within time under Limitation Act. Accordingly, I answer this Addl. Issue No.2 in the negative and against the plaintiff.
37. ADDL. ISSUE NO.3 FRAMED ON 16.11.1995:-
The defendant No.1 in his written statement has contended that the suit is bad for non joinder of necessary parties. It may be noted that the plaintiff's suit is only for declaration to declare that he is the owner of the particular portion MNRS and for rectification of Palupatti dt.30.3.74 and also for an injunction restraining the defendants from interfering in the plaintiff's peaceful possession and enjoyment of the plaintiff's property and for mandatory injunction against the defendant No.1 and Defendant No.9 directing them to remove the transformer fixed in MNRS portion. It may be noted that the suit of the plaintiff is not for partition or for separate 85 O.S.No.3338/1988 possession of the suit schedule property. PW-1 in his evidence has clearly stated that at the time of Palupatti his two elder sisters were not given any shares and only one sister by name Smt.Chinnamma was given the share and that Chinamma has been added as defendant No.9It may be further noted that other two sisters and the defendants have not come forward stating that they are also having a right in the properties and their rights may also be declared in the suit schedule properties. So, under such circumstances, when no relief is claimed against the other sisters of the plaintiff and the defendants, then according to me, they are not the necessary and proper parties to this suit. So, I am unable to hold that the defendant has proved that the suit of the plaintiff is bad for non-joinder of necessary parties. Accordingly, I answer this addl. Issue No.3 in the negative and against the defendant.
38. ADDL. ISSUE NO.4, 7 AND 8:- Since, all these three issues are inter connected and they can be discussed 86 O.S.No.3338/1988 together, so they have been taken up together for discussion in order to avoid repetition of facts and evidence.
39. The plaintiff in his plaint has stated that the transformer installed by the 9th defendant comes within 'D' schedule property as specified in the palupatti dt.30.3.74 and defendant No.9 has erected heavy voltage transformer under the self execution scheme in the said portion of the property and they are entitled to be removed. It is not in dispute that the defendant No.9 has installed the transformer in the said MNRS portion. But it may be noted that the defendant No.9 has acted as per the instructions of defendant No.1 to whom actually the MNRS has fallen as per Palupatti. Now, if we look to the evidence of PW-2 in this regard though he has stated in his examination-in-chief about the installation of the transformer by Defendant No.9 but in the cross-examination he has admitted that as per Ex.P.32 the Assistant Engineer BESCOM has given reply and had also requested him to produce necessary documents in support of his claim. He 87 O.S.No.3338/1988 says that he has only produced the Status Quo order issued by the Court and he has denied that he has not produced any documents before BESCOM. He has admitted that the properties were divided between his father and others as per Ex.P.1 Palupatti. He has admitted that the Electric Power was connected to the defendants property in the year 1988 prior to the institution of this suit. He has denied that the KEB authority have installed transformer in the 'G' schedule property. But he has volunteered that they have installed within the area of his property. He has admitted that they have also taken electric line and connection from the northern side of their property and he admits that this court passed an order dt.23.11.1989 and 14.3.1990 directing all the parties to this suit to maintain status quo on the particular portion of the suit property and he admits that as on the date of status quo order BESCOM was not the party to this suit and he also admits that there was no prohibitory order restraining defendant No.1 from taking additional power to his constructed building. He has denied that the 88 O.S.No.3338/1988 transformer has been installed by defendant No.9 by following all required rules and regulation of BESCOM. So, on going through the evidence of Pw-2 and also the materials that are placed before me it becomes clear that the plaintiff's have failed to prove that the 'G' portion of the property has fallen to their share as per the Palupatti. There is nothing to show that MNRS portion is in possession of the plaintiff. There is nothing to show that defendant No.1 and 9 were prohibited by the Court from installing transformer and to taken electricity to their building through BESCOM. So, when there was no bar for defendant No.9 to provide transformer and when there is nothing to show that the said transformer comes within the 'D' schedule property as specified in the Palupatti dt.30.3.74 and when there was no prohibitory order against Defendant No.9 for fixing the transformer then under such circumstances I am constrained to hold that the plaintiff has failed to prove that the transformer installed by defendant No.9 comes within 'D' schedule property as specified in the Palupatti dt.30.3.74 and that the defendant No.9 has in gross 89 O.S.No.3338/1988 violation of the order of status quo passed by this court dt.23.11.1989 and 14.3.1990 has installed high voltage transformer under self execution scheme and that the plaintiff is entitled to the relief of mandatory injunction directing the defendant No.1 and Defendant No.9 to remove the transformer fixed in MNRS portion. Accordingly, I answer additional issue No.4, 7 and 8 in the negative and against the plaintiff.
40. ADDL. ISSUE NO.5:- The defendant No.1 in his written statement has contended that the 'D' and 'G' schedule properties under palupatti dt.30.3.1974 are different properties and he has further contended that the MNRS portion as claimed by the plaintiff is coming within the 'G' schedule. The defendant No.1 inorder to prove his case has relied upon Ex.P.1 which is the palupatti and he has relied more particularly on item No.5 on page No.7 at shara 3 and 4 of page No.8 and he has also brought to my notice item No.5 and 6 as mentioned on page No.12 and also item No.2 of 90 O.S.No.3338/1988 page 14. Apart from the palupatti, the counsel for the defendant has also relied upon Ex.D9 which depicts the properties that have fallen to the share of each persons. Now if we look to Ex.P.2 which is the map produced by the plaintiff himself, the plaintiff has stated that the portion shown as MNRS belongs to him. But the plaintiff has not produced any materials to show that the said property has fallen to his share. Neither there is proper oral evidence nor documentary evidence on the part of the plaintiff to show that the said portion has fallen to his share under partition and he is in enjoyment of the same. If we look to Ex.P.1 and Ex.P.2 and Ex.D.9 it becomes clear that the 'D' and 'G' schedule properties under palupatti are different and that the MNRS portion as claimed by the plaintiff is coming within 'G' schedule. Hence, by looking to the oral evidence of DW-1 and the documents produced by the defendant and also the documents produced by the plaintiff at Ex.P.1 and 2, I am constrained to hold that the defendant No.1 has proved that the 'D' and 'G' schedule properties under palupatti 91 O.S.No.3338/1988 dt.30.3.1974 are different properties and the MNRS is coming within 'G' schedule property. Accordingly, I answer this Addl. issue No.5 in the affirmative and in favour of the defendant.
41. ADDL. ISSUE NO.6:- The plaintiff in his plaint has stated that this Court has jurisdiction for rectification of palupatti of the year 1974 effected between the plaintiffs and the defendants. Inorder to prove the case, the plaintiff has relied upon the decision reported in 1940 Bombay 605 wherein it is held by his Lordship Justice Blackwell in Noorudin Esmailji Kurwa V/s. Mohamed Umar Sabrati and others as under:-
"Rectification of deed-Mutual mistake of parties- Proof of concurrent intention-preliminary decree based on unrectified deed-Setting aside of preliminary decree by Suit.
Before the Court will rectify an instrument it is not necessary for the Court to have evidence of a binding contract antecedent to the instrument which is sought to be rectified; it is enough if the parties prove beyond reasonable doubt the concurrent intention of the parties at the moment 92 O.S.No.3338/1988 of executing the instrument and that the, instrument fails to give effect to that concurrent intention. The Court may act u7pon intrinsic evidence upon the face of the deed itself that there was a mutual mistake."
He has also relied upon the decision reported in AIR 1961 ASSAM 14 where in his lordship C.P.Sinha has held as under:-
"Specific Relief Act (1877), S. 31 -
Rectification of instrument - Discovery of mistake or fraud - No time limit-
Suit for possession on basis of sale deed- Decree - Execution -
Subsequent suit for rectification of mistake in sale deed - Not barred under O.2 R.2 C.P.C."
It has been held in ILR 1987 page 3873 wherein his lordship K.A.Swami has held in Tibba Boyi @ Kariya @ others V/s. K.Venkatappa as under:-
"SPECIFIC RELIEF ACT, 1963-S 26-
Relief of declaration of title is an independent relief; does not depend upon Section 26- Without seeking a relief of rectification of mistake in the document, plaintiff if able to prove his title to suit property, it is permissible in 93 O.S.No.3338/1988 law and Court has undoubted jurisdiction to pass a decree declaring title of plaintiff to suit property s claimed in plaint-Scope of S.26 Explained.
He has also relief upon recent decision reported in (2013) (3)Supreme Court cases 801 where in their lordships of the Supreme Court have held in Joseph John Peter Sandy V/s. Veronica Thomas Rajkumar and another as under:-
"A. Specific Relief Act, 1963- S. 26
- provision under, as to rectification of an instrument - Applicability of -
person who can seek rectification -
Held, S. 26 is attracted in limited cases
- It is applicable only where it is pleaded and provided that through fraud or mutual mistake of the arties, the real intention of the parties is not expressed in instrument-Such rectification is permissible only by parties to instrument and none else"
As against this arguments, the learned counsel for the defendant has also relied upon the decision reported in 2013 (3) Supreme Court 801 and he has also relied upon the decision reported in AIR 1972 Mysore page 184 wherein his 94 O.S.No.3338/1988 lordship Justice C.Hoinnaiah has held in Smt. Kamalamma V/s. Kenche Gowda and others as under:-
"(A) Evidence Act (1872).S.92.
proviso (I) - Document founded on mistake given in evidence whether would invalidate the document"
So, even though as per the rulings relied upon by the counsel for the plaintiff, the plaintiff can claim the relief of rectification of Palupatti. But it may be noted that the plaintiff has to prove that due to mutual mistake of parties the wrong boundaries have been mentioned in palupatti. It is not the case of the plaintiff that the mistake was noticed recently and there is nothing to show that any fraud was caused on any of the parties. It is clear from the evidence of both the parties that each person is in enjoyment of the properties that have fallen to their shares, as per the boundaries mentioned in the palupatti which is produced at Ex.P.1. If at all the plaintiff was aggrieved by the said boundaries he should have objected for the said boundaries immediately. But he has not chosen 95 O.S.No.3338/1988 to do so. He has later approached Abdulla and Panchayathdars and informed them about the wrong boundaries and PW-1 himself says that all the brothers agreed for that and they have signed the deed except the defendant No.1 who went away without signing the document. The plaintiff ought to have examined his other brothers to show that there was mention of wrong boundaries in Ex.P.1 due to mutual mistake of fact. But the plaintiff has not chosen to do so. Even the defendants who had supported the plaintiff by filing the written statement agreeing to the plaint averments also did not come before the court to give evidence. So, under such circumstances, even though the plaintiff is entitled to the relief of rectification of the documents, but the burden is upon him to show that the said recertification was due to bonafide mistake of the parties. Further, it may be noted that the person inorder to claim the relief of declaration for rectification of the palupatti has to do so within three years from the date when he came to know about it as per Section 56 to 58 of the Evidence Act. It is 96 O.S.No.3338/1988 undisputed fact that the palupatti has taken place during the year 1974 and the plaintiff has filed this suit in the year 1988. So after the lapse of about 14 years, he has filed the suit seeking the relief of declaration and for rectification of the palupatti and this according to me is not permitted as per the provision of Limitation Act and this court cannot now exercise jurisdiction and allow the plaintiff to rectify the palupatti. So, under such circumstances, even though the Court has jurisdiction for rectification of Palupatti, but by looking to the materials that are placed before me I am unable to hold that the plaintiff is entitled for the relief of rectification of Palupatti of the year 1974. Accordingly, I answer this addl. Issue No.6 in the negative and against the plaintiff.
42. ISSUE No.8:- After having answered the Issue Nos.1 to 4, Addl. Issue No.2 framed on 16.11.95, Addl. Issue No.4, 6, 7 and 8 in the negative and against the plaintiff and issue No.5, 6, 7, Addl. Issue No.3, 5 in the affirmative and in favour of the defendant No.1 and Addl. Issue No.1 framed on 97 O.S.No.3338/1988 16.11.1995 in the affirmative and infavour of the plaintiff, I hold that the plaintiff has utterly failed to prove his case and I hold that the suit of the plaintiff is devoid of any merits and it is fit to be dismissed. In the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby dismissed with cost of Rs.10,000/-.
Draw the decree accordingly.
[Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in Open Court, on this the 11th day of February 2015] (V.S.DHARWADKAR) XLI Addl. City Civil Judge Bangalore City.
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Chinnaswamy Reddy 05.09.1995
P.W.2 K.C.Vijaya Kumar 24.10.2009
98 O.S.No.3338/1988
P.W.3 Satish Rustagi 09.03.2000
P.W.4 Syed Althaf 03.08.2001
b) Defendant's side:
D.W.1 K.M.Lakshmaiah Reddy 12.09.2001
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Palupatti
Ex.P.2 Hand sketch
Ex.P.3 to 18 Photographs with negatives
Ex.P.19 to 25 Seven photographs
Ex.P.26 Certified copy of sale deed
dt.21.8.1987
Ex.P.27 Copy of complaint dt.26.11.07
Ex.P.28 Copy of complaint given to BESCOM
dt.27.11.07
Ex.P.29 Copy of complaint dt.10.12.07
Ex.P.30 Copy of complaint given to BESCOM
dt.17.12.07
Ex.P.31 Copy of complaint to police dt.17.12.07
Ex.P.32 Letter addressed by the BESCOM to
the plaintiff
Ex.P.33 Copy of complaint to BESCOM
dt.11.1.08
Ex.P.34 Endorsement given by police
dt.31.1.08
Ex.P.35 Letter addressed to BESCOM
Ex.P.36 Copy of power sanction sketch and
estimation, khatha extract dt.11.7.08
Ex.P.36(a) Ex.P.36 enclosed with a sketch of
Engineer
Ex.P.37 to 42 Six photographs
99 O.S.No.3338/1988
Ex.P.43 Compact Disk
b) Defendant's side :
Ex.D.1-4 Photographs
Ex.D.5-8 Photographs
Ex.D.9 Sketch along with written statement
of DW-1
Ex.D.10 to 21 Photographs
Ex.D.10(a)-21(a) Negative
Ex.D.22 Photographs bill
Ex.D.23 Comparative statement showing the
individual extent of all the properties
as per palupatti dt.30.3.1974
Ex.D.24 Certified copy of the registered sale
deed dt.27.5.88
Ex.D.25 Certified copy of the registered sale
deed dt.26.9.88
Ex.D.26 Photograph
Ex.D.27 Photograph
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
100 O.S.No.3338/1988
11.02.2015:
P-RR
D1, 5 to 8 - GPR
D3-CSK
D4-Ex-parte
D8(A) (b)- GSC
LRs of D7 (a)to (c)- Exparte
D6- Dead
LRs of D2-NJS
D9-PTP
For Judgment
3-00 P.M.
Judgment pronounced in the open court vide separate order.
The suit of the plaintiff is hereby dismissed with cost of Rs.10,000/-.
Draw the decree accordingly.
XLI ADDL.CITY CIVIL JUDGE BANGALORE 101 O.S.No.3338/1988