Bangalore District Court
Sri. A. Sahadevan Pillai S/O Sri. ... vs Sri. Narayanappa S/O Late ... on 22 September, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S No.17071/2004
Dated this the 22nd day of September 2021
Plaintiff 1. Sri. A. Sahadevan Pillai S/o Sri. Achuthan Pillai,
Aged 48 years, R/o No.37, 3rd Cross,
Jayanthi Nagar, Horamavu Village,
K.R Puram Hobli, Bangalore560 043
(Rep by Sri.AR Advocate)
V/S
Defendant 1. Sri. Narayanappa S/o Late Venkataswamappa,
s @ Chikka Abbaiah, Aged about 50 years,
2. Sri. Nagaraj S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 45 years,
2(a) Since deceased represented by his LR.
Smt. Shashikala W/o Late C. Nagarajappa,
Aged about 47 years,
Residing at Horamavu Village & Post,
Near Mariyamma Temple Street,
K.R Puram Hobli, Bangalore East Taluk,
Bangalore560 043.
3. Sri. Jayaram S/o Late Venkataswamapppa
@ Chikka Abbaiah, Aged about 40 years,
1 to 3 residing at: Horamavu Village,
K.R Puram Hobli, Bangalore560 043.
4. Smt. Madireddy Sripadmavathi,
W/o Sri. Jagadish, Aged about 36 years,
R/o No.5, Scientist Hostel,C.V. Raman Nagar,
DRDO Township, Bangalore560 093.
2
Judgment O.S.No.17071/2004
5. Sri. Y.N. Konda Reddy S/o Narayana Reddy,
Aged about 42 years, R/o No.83,
Yerandahalli, Hennagara Post,
Anekal Taluk, Bangalore562106.
(Rep by defs No.1 to 3 Sri.PSN, Advocate,
def No.4Exparte, def No.5 rep by Sri.MRS Advocate)
Date of Institution of the suit 19/11/2004
Nature of the (Suit or pronote, suit for
Suit for permanent
declaration and possession, suit for injunction,
injunction
etc.)
Date of the commencement of recording of the
13/11/2006
Evidence.
Date on which the Judgment was pronounced. 22/09/2021
Year/s Month/ Day/s
s
Total duration 16 10 03
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
:JUDGMENT:
The plaintiff filed suit against the defendants for permanent injunction.
2. The brief facts of plaint averments is as under:
The plaintiff submits that he is absolute owner of the suit schedule property mentioned below: 3 Judgment O.S.No.17071/2004 :SUIT SCHEDULE PROPEPRTY:
All that piece and parcel of residential premises bearing Site No.37 formed in the Northern portion of land in Sy.No.81/2 of Horamavu Village in house list katha No.0122/2, K.R Puram Hobli, Bangalore South Taluk (presently Bangalore East Taluk) measuring East to West 40 feet, North to South 30 feet total area 1200 Sq.ft bounded by East: 25 feet layout Road, West:House(site) No.26, North: House (Site) No.38, South: House (Site) No.36.
3. The plaintiff further submits that he purchased suit schedule property for valuable consideration from defendants No.1 to 3 on 13/01/1992. The defendants No.1 to 3 were original owners of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli. During the year 199091 defendants No.1 to 3 formed layout of house sites in northern portion of their land in Sy.No.81/2 with total number of 47 sites and offered to sell to intending purchasers of sites thus formed. The defendants No.1 to 3 also 4 Judgment O.S.No.17071/2004 appointed defendant No.4 as Power of Attorney Holder to transact with site purchasers. The plan of sites and road in layout formed by defendants No.1 to 3 in northern portion of Sy.No.81/2 was furnished to him and other intending purchasers by defendants 1 to 3. The defendants No.1 to 3 got House List Khatha numbers allotted to the sites formed in this layout by Horamavu Village Panchayat. The schedule property Site No.37 was assigned with House list No.122/2.
4. The plaintiff further submits that northern portion of survey No.81/2 to an extent of 1 acre 24 guntas wherein defendants formed residential layout with 47 sites was bounded by North: land in Sy.No.81/1 belongs to Yamanna, East: land in Sy.No.84 belongs to Baluki Dasappa, West: Jayanthi grama, hamlet of Horamavu Village, South: land (sold) belongs to defendant Padmavathi in same Sy.No.81/2. He and many others purchased sites in layout under registered sale deed from defendants No.1 to 3. All the 47 sites were thus sold to different purchasers during the year 1992. The defendants No.1 to 3 did not retain any right or title over northern portion of the land in 5 Judgment O.S.No.17071/2004 Sy.No.81/2 wherein the sites were formed. Thus since 1992 defendants No.1 to 3 ceased to be the owners of land wherein the said layout was formed.
5. The plaintiff submits that in the year 2000 he constructed residential building on schedule site No.37 after obtaining building licence from Horamavu Village Panchayat authorities and ever since he along with his family members is in peaceful possession and enjoyment of schedule property. That he and many others had purchased sites as stated above from defendants No.1 to 3 constructed their houses in their respective sites by spending their hard earned money and also by availing house construction loans from banks and financial institutions. He and other site purchasers have been in peaceful and enjoyment of their respective sites. That from the past thirteen years there was no agricultural operation on the land in Sy.No.81/2 where the layout is formed and it is fully developed residential layout, and Horamavu Layout Panchayat Authorities have approved residential layout by issuing House list numbers and House building licence to site owners. Such being the state 6 Judgment O.S.No.17071/2004 of affairs on 21/10/2004 the defendant No.5 appeared in layout with strange untenable claim that he has purchased land wherein layout was formed by defendants No.1 to 3 about 13 years ago and had sold sites to him and others and put them in physical possession and enjoyment under registered sale deeds. The defendant No.5 claims that he has purchased land wherein layout is formed under registered sale deed on 01/03/2004 to extent of 1 acre 7 guntas agricultural land from defendants No.1 to 3 and their children. The defendant No.5 has appeared in layout on 21/10/2004 with his gang and henchmen and threatened plaintiff and other owners of sites and houses in layout to give up their properties or they will be forcibly evicted from their properties.
6. The plaintiff further submits that he and other owners of the sites are tried to contact defendants No.1 to 3 and defendant No.4 on this untenable claim of defendant No.5, but they are avoiding to answer him and other site owners in the layout. It has become clear that the defendants No.1 to 5 in collusion with each other fraudulently registered sale deed now claimed by 7 Judgment O.S.No.17071/2004 defendant No.5 to illegally knock off and grab his and other site owners properties in the layout and for making unlawful gain for themselves. That after formation of said layout in their land in question in Sy.No.81/2 and sale of sites under registered sale deeds to purchasers and after putting purchasers in possession of their respective sites, defendants No.1 to 3 had no more rights, title or interest remaining with them in respect of land wherein the layout were formed to convey to defendant No.5 under sale deed dated 01/03/2004. The alleged sale deed of defendant No.5 in respect of same land wherein the layout as formed is fraudulent instrument and it does not confer any title to defendant No.5 in respect of land wherein the layout was formed and said sale deed claimed by defendant No.5 is nullity and it does not affect him in any manner the lawful title, rights and interest of suit schedule property. On 21/10/2004 defendant No.5 and his henchmen came to the layout and threatened him and other owners of forceful interference and eviction. He and other site owners filed police complaint in the Ramamurthy Nagar Police Station against the threats of the defendants. The defendant No.5 also lodged caveat in Civil 8 Judgment O.S.No.17071/2004 Judge Jr. Division court, Bangalore, which court has no jurisdiction over the area, against him and few other owners. The suit property and residential layout wherein suit property situated is located within Bangalore Metropolitan limits and within the jurisdiction of this court. He and other site owners in layout are living under threat of forceful eviction by defendant No.5 and his supporters.
7. The plaintiff submits that he has got legal right to peaceful possession and enjoyment of the suit property. The defendants No.1 to 5 by creating fraudulent title deeds and with manipulated revenue records made on the strength of such fraudulent title deeds are trying to interfere with peaceful possession and enjoyment of schedule property by him. The defendant No.5 with his men and money power interfering and threatening to dispossess him from his property.
8. The plaintiff further submits that the cause of action to file this suit arose on 21/10/2004 when defendant No.5 came to his property and threatened to interfere with his peaceful possession and enjoyment of suit property. The plaintiff prays to 9 Judgment O.S.No.17071/2004 decree the suit for permanent injunction restraining defendants, their heirs, successors, agent from interfering with peaceful possession and enjoyment of suit schedule property and award costs of this proceedings.
9. The defendants No.1 to 3 have filed written statement. The defendants No.1 to 3 denied entire plaint allegations and also denied ownership of the plaintiff over the suit schedule property. The defendants No.1 to 3 submit that suit of plaintiff for the relief of bare injunction without seeking declaratory relief is not maintainable either in law or on facts. The suit filed by plaintiff is frivolous, vexatious, mischievous, in nature and plaintiff had suppressed material facts and misrepresented the facts. The defendants No.1 to 3 submit there is no cause of action to file suit, court fee paid is in sufficient.
10. The defendants No.1 to 3 further submits that alleged suit schedule property is not at all in existence as it is described in schedule to the plaint. The defendants No.1 to 3 sold an extent of 1 Acre 20 guntas out of total extent of 3 acre 17 guntas of land in Sy.No.81/2 of Horamavu Village, K.R. Puram 10 Judgment O.S.No.17071/2004 Hobli, Bangalore South Taluk presently Bangalore East Taluk in favour of Munivenkatamma W/o Dasappa and another extent of 30 guntas of land in favour of Padmavathi Madareddy/defendant No.4 and retained 1 Acre 7 Guntas of land in said Sy.No.81/2 of Horamavu Village. The defendants No.1 to 3 were title holders in possession and enjoyment of the extent of 1 Acre 7guntas of land Sy.No.81/2 of Horamavu Village and they have sold said extent of land in favour of Y.N. Kondareddy/the defendant No.5 under registered sale deed on 01/03/2004. That ever since date of sale land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 of Horamavu Village the defendant No.5 is in possession and enjoyment of said extent of land. The defendants No.1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu Village in favour of Padmavathi Madareddy/defendant No.4 and have not entered in to any other transaction with defendant No.4 except for sale deed referred to above, which has been executed by defendants No.1 to 3. That no sites have been formed in land measuring an extent of 1 Acre 7 Guntas, which has been sold in favour of defendant No.5.
11
Judgment O.S.No.17071/2004
11. The defendants No.1 to 3 denied alleged site No.37 which is said to have been purchased by plaintiff under registered sale deed on 13/01/1992 has been formed in Sy.No.81/2 of Horamavu Village from its vendors i.e. defendants No.1 to 3. The defendant No.1 to 3 submits that alleged G.P.A said to have been executed by defendants No.1 to 3 in favour of defendant No.4 which has been obtained by defendant No.4 from defendants No.1 to 3 by misrepresentation and by playing fraud upon defendants No.1 to 3. Thus no power has been confirmed upon defendant No.4 under alleged General Power of Attorney. In fact the defendants No.1 to 3 did not own and possess suit schedule site and hence question of executing General Power of Attorney in favour of defendant No.4 does not arise. The alleged layout plan said to have been furnished by defendants No.1 to 4 to plaintiff at the time of entering in alleged sale agreement is got up and concocted layout plan. The defendants No.1 to 3 submits they have sold land measuring an extent of 1 Acre 7 Guntas in favour of defendant No.5 under registered sale deed on 01/03/2004. The defendants No.1 to 3 denied the entire 12 Judgment O.S.No.17071/2004 allegations of plaint paras No.2 to 13. The defendants No.1 to 3 prays to dismiss the suit with cost.
12. That inspite of service of suit summons defendant No.4 not appeared and placed exparte. The defendant No.5 has filed his written statement. The defendant No.5 denied entire plaint allegations. The defendant No.5 submits that suit filed by plaintiff for relief of permanent injunction in respect of alleged non existence of suit schedule property is not sustainable either in law of on facts. Without seeking declaratory relief of title and consequential reliefs, the suit filed for bare injunction is not maintainable. The defendant No.5 submits that description of the property, its extent and boundaries mentioned in schedule to the plaint are not correct. The plaintiff is making an attempts to lay claim for portion in land measuring an extent of 107 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, (Previously Bangalore South Taluk) under the guise of having purchased site bearing list No. under registered sale deed. There cannot be site bearing house list number in agricultural land. The house list number indicates 13 Judgment O.S.No.17071/2004 that property is Gramatana property. However plaintiff is trying to lay claim for portion in land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 in Horamavu Village, K.R Puram Hobli, Bangalore South taluk and presently Bangalore East Taluk. The plaintiff has to establish that there is site bearing house list number with its extent & boundaries as mentioned in sale deed & that said site is within Gramatana limits & then only plaintiff can claiming right over suit schedule property.
13. The defendant No.5 further submits that plaintiff is not having title & possession to property as it is described in schedule to the plaint. The court paid is insufficient. There is no cause of action for the suit and hence plaintiff is not entitle for relief of permanent injunction for want of cause of action. The defendants No.1 to 3 are title holders in possession and enjoyment of land measuring an extent of land 3 Acre 17 Guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk and they have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour of Padmavathi Madareddy/defendant No.4 and 14 Judgment O.S.No.17071/2004 they have retained land measuring 1 Acre 07 guntas and in possession and enjoyment of the said land as absolute owners. The defendants No.1 to 3 have sold said extent of 1 Acre 07 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk in his favour under registered sale deed on 03/01/2004 and by rectification deed dated 29/03/2004, ever since from date of purchase 01/03/2004 possession of land has been delivered to him, he is in possession of said extent of land as absolute owner and khata of property mutated in his name as per M.R No.48/0304 and entered his name in pahanies in respect of said land. Then he approached survey department and said land in Sy.No.81/2 of Horamavu village being surveyed and phoded, land measuring an extent of 107 Guntas has been assigned with new Sy.No.81/3. The aforesaid extent of 1 Acre 7 Guntas in new Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village has not been converted for non agricultural residential purposes and it remains as an agricultural land.
14. The defendant No.5 denied entire allegations of plaint paras No.2 to 13. The defendant No.5 submits that document 15 Judgment O.S.No.17071/2004 upon which plaintiff is relying in support of his title and possession of schedule property do not in any manner relate to land in Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, hence plaintiff can't claim right of possession over any portion of land in Sy.No.81/3 (Old No.81/2) of Horamavu Village, K.R.Puram Hobli. The defendant No.5 prays to dismiss suit of plaintiff with costs.
15. On the basis of above pleadings following Issues are framed.
:ISSUES:
1. Whether the plaintiff proves that his lawful possession and enjoyment over the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged obstructions?
3. Whether the plaintiff is entitled to the reliefs claimed?
4. What order ?16
Judgment O.S.No.17071/2004
16. The plaintiff examined as PW.1 and marked ExP1 to ExP13. The defendant No.1 examined as DW.1, the defendant No.5 examined as DW.1 and marked ExD1 to ExD32.
17. The plaintiff counsel argued. The defendants No.1 to 3 counsel argued. The defendant No.5 counsel argued and filed written arguments with citations. Perused records.
18. My findings to above Issues are as under
Issue No.1) In Negative Issue No.2) In Negative Issue No.3) In Negative Issue No.4) See final order for following:
:REASONS:
19. Issues No.1 to 3:
The plaintiff A Sahadevan Pillai S/o Achuthan Pillia filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that he is the absolute owner in possession and enjoyment of suit schedule property. He has purchased the site No.37 in the schedule property from defendants 1 to 3 17 Judgment O.S.No.17071/2004 through their GPA holder defendant No.4 for valuable consideration under registered sale deed on 13/01/1992. The defendants No.1 to 3 were earlier original owners of the schedule site No.37 and through their power of attorney holder defendant No.4 sold the schedule site to him. After purchase of site No.37 from his vendors, he got khata changed in to his name in the village panchayat. He has constructed house in schedule site as per plan and he is residing there along with his family since the year 2000. The defendants No.1 to 3 were original owners of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli and in the year 1991 they formed layout of sites in northern portion of their land in Sy.No.81/2 to an extent of 1 acres 24 Guntas with total number of 47 sites and got House list Khatha allotted to the sites and offered to sell to intending purchasers through their power of Attorney holder defendant No.4. The schedule site was allotted with house list No.122/2. These sites were bounded by North: land in Sy.No.81/1 belonging to Yamanna, East:land in Sy.No.84 belonging to Baluki Dasappa, West: Jayanthi grama, hamlet of Horamavu Village, South: land (now sold) belonging to defendant No.4 in 18 Judgment O.S.No.17071/2004 the same Sy.No.81/2. All the 47 sites were thus sold to different purchasers including him in the year 1992, the defendants No.1 to 3 did not retain any right or title over northern portion of land in Sy.No.81/2, wherein sites were formed and defendants No.1 to 3 ceased to be owners of land wherein said lay out was formed.
20. The PW.1 further deposed that in the year 2000 he constructed residential building on his site No.37 after obtaining building licence from Horamavu village Panchayat Authorities and ever since he and his family members are staying in the said house. Like him many others have purchasers of sites as from defendants No.1 to 3 constructed their houses in their respective sites by spending their hard earned money as well as by availing house construction loans from banks and financial institutions.
He and other purchasers are in peaceful possession of respective sites with houses on them. That for the past thirteen years there was no agricultural operation on the land in Sy.No.81/2 where layout is formed and fully developed residential layout, Horamavu Panchayat Authority has approved residential layout 19 Judgment O.S.No.17071/2004 by issuing House list numbers and House building licence to the site owners. Such being the state of affairs in this well settled residential layout, on 21/10/2004 the defendant No.5 with his gang and henchmen appeared in the layout with untenable claim that he has purchased the land as agricultural land, wherein layout was formed by defendants No.1 to 3 about 13 years ago and sold said sites to him and other purchasers. The defendant No.5 claims that he has purchased land wherein layout was formed under registered sale deed dated 01/03/2004 to an extent of 1 Acre 7 Guntas agricultural land from defendants No.1 to 3 and their children. The defendant No.5 on 21/10/2004 along with gang and henchmen threatened him and other owners of sites and houses in layout to give up their properties or else they would be forcibly evicted from their properties. Against this forceful threatened interference and eviction by defendant No.5, he and other site owners have filed police complaint in the Ramamurthy Nagar Police Station. He along with site owners tried to contact defendants No.1 to 4 to find out about untenable claim of defendant No.5 over their properties. But defendants No.1 to 4 were avoiding to answer 20 Judgment O.S.No.17071/2004 his queries and other purchasers. It has become clear to him and other owners of the sites in the layout that defendants No.1 to 5 in collusion with each other fraudulently engineered and registered sale deed now claimed by defendant No.5 to illegally knock off and grab his property and properties of others in layout and for making unlawful gain for themselves. That after formation of sites in their land in Sy.No.81/2 and sale of sites under registered sale deeds to him and other purchasers for valuable consideration and putting purchasers in possession of properties, defendants No.1 to 3 had no more rights, title or interest remaining with them in respect of the land to convey to defendant No.5 under sale deed on 01/03/2004. It is fraudulent instrument and the same does not confer any title to defendant No.5 in respect of very same land wherein layout was formed. The sale deed claimed by defendant No.5 is nullity and it does not affect in any manner his lawful title, right and interest on suit schedule property. The defendant No.5 also lodged caveat in Civil Judge Jr. Division court, Bangalore, which court has no jurisdiction over the area, against him and other site owners 21 Judgment O.S.No.17071/2004 when property in question is situation with in Bangalore Metropolitan limits within the jurisdiction of this court.
21. The PW.1 further deposed that he and other site owners in the layout are living under threat of forceful eviction by defendant No.5 and his supporters, who with his money and muscle power physically interfering and threatening to dispossess him from his property. The defendants No.1 to 5 by creating fraudulent title deeds and with manipulated revenue records made on strength of such fraudulent title deeds are trying to interfere with his peaceful possession and enjoyment of schedule property. The PW.1 prays to decree the suit as prayed in the plaint. In support of oral evidence PW.1 marked documents ExP1 to ExP13.
22. The defendant No.1 Narayanappa S/o Venkataswamappa @ Chikkabbaiah filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that plaintiff filed above suit for permanent injunction in respect of non existed alleged suit schedule properties, description of the properties, boundaries, measurements in the plaint schedule is imaginary and not in 22 Judgment O.S.No.17071/2004 existence. The land bearing Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South Taluk, (Presently Bangalore East Taluk) totally measuring 3 acres 17 Guntas originally belongs to their grandmother Venkatamma, she executed Registered Will dated 13/06/1988 in their favour him and his two brothers namely Nagaraja, Jayaram and his sister Pullamma. That their grandmother sold 1 acre 20 guntas in favour of Munivenkatamma of Southern Portion of Sy.No.81/2 and retained remaining land, on her death they acquired right, title, interest and possession as per her last will executed in their favor and they became the absolute owners of land measuring 1 acre 37 guntas including kharab of 0.06 Guntas in said survey number, which is bounded by East:land of Baluki Dasappa, West: Jayanthi Village, North: land of Yamanna and South remaining portion in Sy.No.81/2 sold to Munivenkatamma. That he and defendants No.2 & 3 sold Southern portion of Sy.No.81/2 measuring 30 guntas in favour of Padmavathi Madi Reddy and retained 1 acre 13 Guntas including 6 guntas of kharab, which is Northern portion of Sy.No.81/2. The DW.1 further deposed that defendants No.1 to 23 Judgment O.S.No.17071/2004 3 are agriculturist doing agriculture for their livelihood in said land retained by them, in order to meet their urgent family necessities they have sold said land measuring 1 acre 13 guntas including 6 guntas kharab in Sy.No.81/2 of Horamavu Village in favour of defendant No.5 Y.N.Kondareddy in the year 2004, due to mistake crypt in mentioning on boundaries under the sale deed, they have executed rectification deed immediately. After the purchase Y.N.KondaReddy became absolute owner in possession of said land and same is bounded by East: land of Baluki Dasappa, West: Jayanthi Village, North:land of Yamanna and South: land of Padamavathi Madireddy. That pursuant to register of sale deed in favour of Y.N.Kondareddy, he continued in lawful possession and enjoyment of said land and said land sub phoded as Sy.No.81/3 measuring 1 acre 7 Guntas, the mutation and RTC entered into his name as owner in possession. The defendants No.1 to 3 apart from selling said land Y.N. Kondareddy never sold to anybody and never parted its possession till they sold in favour of Y.N.Kondareddy. The defendants No.1 to 3 are not benefited with education and not acquainted with worldly affairs, they know only put signature in 24 Judgment O.S.No.17071/2004 Kannada not knowing reading and writing any of the languages. That false allegation of plaintiffs that they have sold alleged site No.20 alleged house list Katha No.122/2 measuring 30 X 40 feet in favour of plaintiff during the year 1992 is false. They have no such Katha property or sites at the alleged Horamavu village limits, the allegations of plaintiffs that layout of sites formed in their land in Sy.No.81/2 of Horamavu village out of 1 acre 24 Guntas is false, after alienation they have not possessed 1 acre 24 Guntas either to form alleged layout of sites, in fact they never approached Horamavu village Panchayath for obtaining Katha in their names, the alleged Katha bearing No.122/2 at Horamavu village, K.R.Puram Hobli are bogus, fictitious Katha number, fraudulently concocted and created by the plaintiffs to suit their false convenience and attribute claims in their alienated agricultural land in Sy.No.81/2.
23. The DW.1 further deposed that plaintiffs have concocted and got up documents styled as sale deeds in respect of non existent property, by misusing the bogus and concocted documents, the plaintiffs attempted to gain, interest in their 25 Judgment O.S.No.17071/2004 alienated properties belongs to Y.N.Kondareddy by imaginary cause filed the above suit. That till they sold land measuring 1 acre 7 Guntas in Sy.No.81/2 in favour of Y.N.KondaReddy, the said land continued to be revenue assessed land entered in the RTC records maintained by the revenue department and continued to be agricultural cultivable lands, they never obtained any conversion for non agricultural residential purposes and never formed any illegal layout in the said land, They have not sold any piece or inch to anybody. The alleged sale deed of plaintiff not reflect survey number in which the alleged sites are formed. That after alienating their land in Sy.No.81/2 measuring 1 acre 7 Guntas in favour of Y.N.Kondareddy they have no interest in said land, alleged cause of action is false and imaginary. The DW.1 prays to dismiss suit of the plaintiff with exemplary cost.
24. The defendant No.5 Y.N.Kondareddy S/o.Narayana Reddy filed his affidavit in lieu of examination in chief as DW.2 and deposed evidence that plaintiff filed suit against the defendants for reliefs of permanent injunction in respect of 26 Judgment O.S.No.17071/2004 residential premises bearing site No.37 formed in northern portion of land in Sy.No.81/2 of Horamavu Village, in house list katha No.122/2, K.R.Puram Hobli, Bangalore South Taluk measuring East to West : 30 feet and North to South : 40 with boundaries i.e., the suit schedule property. The suit filed by plaintiff for reliefs of permanent injunction in respect of the alleged non existence of suit schedule property is not sustainable either in law or on facts and as such suit has to be dismissed. That without seeking for declaratory relief of title mere suit for bare injunction is not maintainable in law and hence the plaintiffs not entitle for the relief's of permanent injunction. He is bonafide purchaser of agricultural land bearing old Sy.No.81/2 and New No.81/3 measuring 1 acre 7 guntas of Horamavu village for valuable consideration from defendants No.1 to 3 after enquiry and verifying title of his vendor and comes to conclusion that vendors having marketable title to alienate the said property and purchased under registered sale deed on 01/03/2004 for valuable consideration. Therefore his right, title interest and possession have to be protected under law. The description of plaint schedule property extent and 27 Judgment O.S.No.17071/2004 boundaries mentioned in plaint schedule is not at all correct. The boundaries and extent and property as stated in the plaint and schedule as not at all pertaining to old Sy.No.81/2 and New No.81/3 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk and as such suit has to be dismissed. The plaintiff is making attempts to lay claim in portion of land measuring to an extent of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village K.R.Puram Hobli, Bangalore East Taluk under the guise of having purchased site bearing house list number under registered sale deed. The suit schedule property is nothing to do with land bearing old Sy.No.81/2 and New Sy.No.81/3 of Horamavu village, and alleged description of the plaint schedule, its boundaries and sale deed referred to in the plaint is in respect of property situated in the gramatana of Horamavu and not at all pertaining to the agricultural land.
25. The DW.2 further deposed that there cannot be site bearing House list number in agricultural land. The house list number indicates that the property is gramatana property. However plaintiff is trying to lay to claim for the portion in land 28 Judgment O.S.No.17071/2004 an extent of 1 acre 7 guntas in old survey No.81/2 of Horamavu village, K.R.Puram Hobli, Bangalore South Taluk, and presently Bangalore East Taluk and contentions taken by plaintiff in pleadings and in evidence affidavit, documents relayed upon by him are different to each other and therefore plaintiff is not entitle for any relief as sought for in plaint claiming suit property in the portion of land in Sy.No.81/2 of Horamavu village. The plaintiff has to establish that there is site bearing house list No. with its extent and boundaries as mentioned in the sale deed and said site is within the gramatana limits and then only plaintiff can claim right over the suit schedule property. The plaintiff failed to establish the property mentioned in the sale deed and also in plaint schedule and as such suit has to be dismissed. The plaintiff is not having title and possession to the property described in plaint schedule and as such the plaintiff cannot value the site at Rs.1,000/ under section 26(C) of KCF and SV Act 1956. The plaintiff has to value the suit on market value of suit property. The vendor of plaintiff has no manner of right title interest or possession over suit schedule property and as such plaintiff does not derive any 29 Judgment O.S.No.17071/2004 right, title or possession. The documents produced by plaintiff are all concocted, created and got up documents. The documents are not at all in existence in Horamavu village panchayath. The vendors of plaintiff also does not find place in Horamavu village Panchayath. On the strength of created and concocted documents false suit came to be filed against him on non existed suit schedule property. There is no cause of action for the suit and plaintiff is not entitle for permanent injunction for want of cause of action. The defendants No.1 to 3 are title holders and in possession and enjoyment of land measuring to an extent of 3 acres 17 guntas in Sy.No.81/2 of Horamavu Vilalge, K.R Puram Hobli, Bengalore South Taluk and they have sold to an extent of 1 acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour defendant No.4 Padmavathi Madireddy/defendant No.4 and having retained land measuring 1 acre 7 guntas and they were in possession and enjoyment of 1 acre 7 guntas of land as absolute owners. The defendants No.1 to 3 and their children have sold said 1 acre 7 guntas in Sy.No.81/2 of Horamavu Village in his favour under registered sale deed on 01/03/2004 30 Judgment O.S.No.17071/2004 for valuable consideration. The vendors have noticed that there is some discrepancy in the boundaries and therefore they have executed registered rectification deed dated 29/03/2004, ever since the date of purchase he is in possession and enjoyment of said land by exercising his right of ownership and possession. That on the basis of his lawful ownership and possession concerned revenue authorities have lawfully effected mutation in M.R No.48/20032004 and his name has been entered in RTC and pahanies in respect of said property. Since the date of purchase he is paying Kandayam in respect of said property. That after purchase he approached survey department to measure and fixe the boundaries in respect of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu Village. The survey authorities surveyed and fixed the boundaries in respect of said property to an extent of 1 acre 7 guntas and assigned with new Sy.No.81/3. The aforesaid extent of 1 acre 7 guntas in New Sy.No.81/3 (old Sy.No.81/2 of Horamavu Village has not been converted for non agricultural residential purposes and it remains as on agricultural land. Further his vendors have not at all formed any sites in the said land and sold it to any persons 31 Judgment O.S.No.17071/2004 including the plaintiff at any point of time and remained as an agricultural land and revenue authorities lawfully entered his name in the revenue documents.
26. The DW.2 further deposed that averments made in para No.2 of plaint that under registered sale dated 13/01/1992 the site No.37 alleged formed in Sy.No.81/2 of Horamavu village has been purchased by plaintiff from his vendors defendants No.1 to 3 is false. The alleged layout plan and documents of sale deeds and GPA are got up, concocted and created for the purpose of filing this suit. The DW.2 further deposed evidence that entire allegations of plaint paras No.3 to 10 are false. That no sites have been formed in land bearing old Sy.No.81/2 and New No.81/3 and as such the alleged sale deed are not at all valid one and purchasers are not at all in possession of their respective sites.
27. The DW.2 further deposed that averments made in paras No.3 to 13 of the plaint ass false. The documents upon which the plaintiff is relaying in support of his title and possession of the schedule property do not in any manner relayed to the land 32 Judgment O.S.No.17071/2004 in Sy.No.81/3 (Old sy.No.81/2) of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk and as such the plaintiff cannot claim any right or possession over any portion of the land in Sy.No.81/3 (Old Sy.No.81/2) of Horamavu village, K.R.Puram Hobli.
28. The DW.2 further deposed evidence that that defendants No.1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu village in favour of Padmavathi Madireddy. The defendants No.1 to 3 have not entered into any other transactions with the defendant No.4 except the sale deed referred to above which has been executed by the defendants No.1 to 3. The defendants No.1 to 3 have not at all executed GPA in favour of defendant No.4. No power has been confirmed upon the defendant No.4 under the alleged GPA. After sale by defendants No.1 to 3 in his favour, defendants No.1 to 3 did not own and possess any land. The alleged layout plan is got up and concocted one. In the sale deed as well as schedule given in the plaint there is no mention that suit schedule property is portion of Sy.No.81/2 of Horamavu village. There are no records to 33 Judgment O.S.No.17071/2004 show that suit schedule property comes within the jurisdiction of Horamavu village panchayath. The suit schedule property is not at all in existence. The documents produced are all village panchayath records are not at all pertaining to Sy.No.81/2 or 81/3 of Horamavu village. He applied before the Right to information officer under the RTI Act to furnish the documents. They have sent the information stating that the documents applied by him are not at all available in the said offices. The plaintiff trespassed into portion of land bearing (Old Sy.No.81/2) measuring 1 acre 7 guntas and New No.81/3 of Horamavu village and got constructed building. In that regard he filed suit in OS.No.3483/2005 on the file of this court for the reliefs of declaration, mandatory injunction, possession and other reliefs. The said suit is filed not only against the plaintiffs but also others. The said suit is pending. The DW.2 prays to dismiss the suit with exemplary costs. In support of oral evidence DW.1 marked ExD1 to ExD31.
29. The defendant No.5 counsel while arguing relied upon the decisions reported in 1) ILR 2005 KAR 884 2) AIR 1979 CaL 34 Judgment O.S.No.17071/2004 50, 3) AIR 1999 SC 1441, 4) AIR 1962 Madras 149, 5) ILR 2010 KAR 2996, 6) ILR 1998 KAR 1, 7) AIR 1990 Orissa 124, 8) AIR 2004 Karnataka 444, 9) (1998) 9 SCC 719, 10) AIR 1998 KAR 321, 11) ILR 2007 KAR 339. The relevant citations are discussed below.
ILR 2005 KAR 884 T.L.Nagendra Babu V/s Manohar Rao Pawar Suit for Declaration and Injunction requirement of evidence - Duty of the Court - Held - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.
ILR 2007 KAR 339 Aralappa V/s Jagannath and others Specific Relief Act 1963Section 34Declaration of status or rightDiscretion of CourtHeld, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suitFurther held, when the plaintiff is not in possession of the property on the date of suit, relief of 35 Judgment O.S.No.17071/2004 permanent injunction is not an appropriate consequential reliefThe appropriate relief consequential to declaration of ownership would be recovery of possession of the property When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainableCourt below was justified in dismissing the suit as not maintainable Appeals are dismissed.
30. The burden is on plaintiff to prove that he is absolute owner and in lawful possession and enjoyment of suit property as on the date of suit and defendants caused interference to his possession and enjoyment over the suit schedule property. The contention of plaintiff that he has purchased the suit schedule property under registered sale deed dated 13/01/1992 from defendants No.1 to 3. That earlier defendant Nos.1 to 3 were owners of the Site No.37, their power of attorney defendant No.4 Madireddy S. Padmavathi sold said site to him under registered sale deed on 13/01/1992. After purchase of Site No.37 from his vendor and he got mutated khatha in his name in the village panchayath and Horamavu village panchayath 36 Judgment O.S.No.17071/2004 issued khatha extract in form No.10 and he has also constructed the house as per the plan in schedule site and residing in suit schedule property along with his family members.
31. The further contention of plaintiff that defendants No.1 to 3 were original owners of Sy.No.81/2 of Horamavu village, K.R. Puram hobli and in the year 1991 they are formed layout of sites in northern portion of said land to the extent of 1 acre 24 guntas and formed total number of 47 sites and got house list khatha allotted to said sites and offered to sell said sites to the intending purchasers through their power of attorney i.e. defendant No.4. The schedule site was allotted with house list No.122/2 and it is bounded by North: land in Sy.No.81/2 of Horamavu village belonging to Yamananna, East: land in Sy.No.84 belonging to Baluki Dasappa, West : Jayanthi grama and hamlet of Horamavu village and South: land belonging to defendant No.4 in the same Sy.No.81/2. All 47 sites were sold to different purchasers including him in the year 1991. Hence defendants No.1 to 3 did not remain any right title over the northern portion of land in Sy.No.81/2, wherein the sites were 37 Judgment O.S.No.17071/2004 formed and defendants No.1 to 3 ceased to be the owners of land, wherein the said layout was formed. In the year 200 he constructed residential building in his Site No.37 after obtaining licence from Horamavu Village Panchayat Authorities and ever since he and his family members are staying in the house. Like him other purchasers of the sites from defendants No.1 to 3 have also constructed their house in their respective sites by spending hard earned money and availing house construction loans from Banks and financial institutions. He and other purchasers are in peaceful possession of respective sites with houses on them and for past 13 years there was no agricultural operation on the land in Sy.No.81/2, where the layout is formed and it is fully developed residential lay out and Horamaru village Panchayat Authorities approved residential layout by issuing house list numbers and house building licence to the site owners. Such being the state of affairs the defendant No.5 with his gang and henchmen came to the schedule property on 21/10/2004 appeared in layout with strange and equally untenable claim that he has purchased land wherein the layout was formed by defendants No.1 to 3 about 13 years back and 38 Judgment O.S.No.17071/2004 sold the site to him and other purchasers. The defendant No.5 contending that he has purchased land to the extent of 1 acre 7 guntas from defendants No.1 to 3 and their children on 01/03/2004 and defendant No.5 with his gang and henchmen threatened him and other owners of sites and houses in the layout to hand over the properties otherwise they will be possible evicted from properties. Hence defendant No.5 causing interference with his possession and enjoyment over suit schedule properties colluding with other defendants and defendants No.1 to 5 have created fraudulent documents of title deeds and manipulated the revenue records and trying to interfere with his possession and enjoyment over the suit schedule property. The plaintiff/PW.1 deposed evidence as discussed above and in support of oral evidence the plaintiff/PW.1 marked ExP1 to ExP13.
32. The ExP1 is certified copy of sale deed dt.13/01/1992 executed by defendants No.1 to 3 in favour of plaintiff A.Sahadevan Pillai in respect of Site No.37, House list Khata No.122/2 of Horamavu village. The ExP2 is encumbrance 39 Judgment O.S.No.17071/2004 certificate for the period from 11/10/2000 to 31/03/2004 relating to Site No.37 khatha No.122/2 of Horamavu village. The ExP3 is encumbrance certificate for the period from 01/04/2004 to 25/10/2004 relating to Site No.37 khatha No.122/2 of Horamavu village. The ExP4 is layout of the properties. The ExP5 is sanctioned plan issued by village panchayath, Horamavu village for construction of building in No.122/2 Horamavu village, K.R.Puram Hobli to present plaintiff A.Sahadevan Pillia. The ExP6 is tax paid receipt. The ExP7 to ExP12 are photographs marked as they belongs to suit schedule property. The ExP13 is complaint filed by the plaintiff to the SubInspector of Ramamurthy Nagar police station alleging harassment to the residents by some miscreants.
33. On the contrary the defendant No.1 examined as DW.1 as discussed above and he denied the allegation of plaintiff that plaintiff is owner of suit schedule property, and defendant No.1 contention that there is no existence of suit schedule property, the description of property boundaries measurement mentioned in the plaint schedule is imaginary. The defendant 40 Judgment O.S.No.17071/2004 No.1 contention that land bearing Sy.No.81/2 of Horamavu village, K.R. Puram hobli, Bengaluru South aluk (presently Bengaluru East Taluk) totally measuring 3 acres 17 guntas belongs to his grandmother Venkatamma and she was executed registered Will dated 13/06/1988 in his favour and his two brothers Nagaraja, Jayaram and sister Pullamma. His grandmother sold 1 acre 20 guntas infavour of Munivenkatamma on southern portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title and possession of said portion as per the last Will executed in their favour and they became absolute owners of land measuring 1 acre 37 guntas including kharab of 0.06 guntas in said Sy.No, which is bounded by East: land of Baluki Dasappa, West: Jayanthi village, North: land of Yamanna, South: the remaining portion in Sy.No.81/2 sold to Munivenkatamma. The defendants No.1 to 3 are agriculturists and for their livelihood they have sold 1 acre 13 guntas including 6 guntas of kharab in Sy.No.81/2 of Horamavu village in favour of defendant No.5/Y.N. Kondareddy in the year 2004, due to mistake crypt in mentioning in boundaries under sale deed, they have executed 41 Judgment O.S.No.17071/2004 rectification deed immediately, after purchase Y.N. Kondareddy became absolute owner in possession of land sold by them and same was bounded by East: Land of Baluki Dasappa, West:
Jayanthi village, North: land of Yamanna and South: land of Padmavahi Madireddy. In pursuance of registered sale deed in favour of Y.N. Kondareddy he continued in possession of said land and afterwards said land was sub phoded as Sy.No.81/3 and the said Kondareddy is in possession and enjoyment of the said land and his name is appearing in the revenue records.
34. The defendant No.5/Y.N. Kondareddy examined as DW.1 and he has also deposed evidence as contended by defendant No.1 as discussed above as he purchased land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village from defendants No.1 to 3 afterwards it is given new number as Sy.No.81/3 of Horamavu village. The defendant No.5 also denied ownership, title and possession of plaintiff over suit schedule property and also submits there is no existence of suit schedule property within the boundaries as contended by plaintiff. The defendant No.5 contention that the plaintiff 42 Judgment O.S.No.17071/2004 trespassed into the possession of land bearing Sy.No.81/2 measuring 1 acre 7 guntas and new Sy.No.81/3 of Horamavu and got constructed building and in this regard he filed the suit in OS.No.3483/2005 on the file of this court for the relief of declaration and mandatory injunction, possession and other reliefs.
35. The defendant No.5/DW.2 in support of oral evidence marked ExD1 to ExD32. The ExD1 is certified copy of plaint in OS.No.3483/2005 and ExD2 is certified copy of written statement in O.S.No.3483/2005 which is filed by present defendant No.5 Y.N. Kondareddy against defendant No.1 Narayanappa and others. The ExD3 is certified copy of plaint and ExD4 is certified copy of written statement in OS No.16322/2005 which is filed by Renuka Vijayakumar & others against Narayanappa and others. The ExD5 is certified copy of sale deed dated 01/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 in respect of 1 Acres 17 Guntas including 6 Guntas Kharab in Sy.No.81/2 of Horamavu village, K.R.Puram 43 Judgment O.S.No.17071/2004 Hobli, Bangalore. The ExD6 is certified copy of rectification deed dt.29/03/2004 defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 rectifying about boundaries mentioned in sale deed dated.01/03/2004 towards West: Jayanti Grama, Gomala land instead of land of Baluki Dasappa, towards North:Vemanna's land instead of land of Padmavati's land, towards South: Padmavathi's land instead of Baluki Dasappa's land.
36. The ExD7 is Mutation Register No.48 regarding change of khatha of Sy.No.81/2 measuring from 1 acre 07 Guntas from defendant No.1 Narayanappa in favour of defendant No.5 Y.N. Konda Reddy. The ExD8 is certified copy of record of right of land bearing Sy.No.81/2 to the extent of 1 Acres 7 Guntas of Horamavu village. The ExD9 is certified copy of Atlas map of Sy.No.81/2, ExD10 is certified copy of Hissa tippani of Sy.No.81/2. The ExD11 is certified copy of form No.5 relating to Sy.No.81/2 of Horamavu village. The ExD12 is Certified copy of Karnataka revision settlement Aakaar bandh relating to Sy.No.81/2. The ExD13(1) to ExP13(4) are certified copies of 44 Judgment O.S.No.17071/2004 record of rights relating to Sy.No.81/2 of Horamavu village, where in name of defendant No.5 Y.N. Kondareddy entered as owner and possessor to the extent of 1Acres07Guntas. The ExD14 is certified copy of encumbrance certificate for the period from 01/06/1989 to 06/06/2004 wherein there are entries regarding sale of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village by Narayanappa and others to Y.N. Kondareddy. The ExD15 is certified copy of endorsement issued by Horamavu Grama Panchayath on 15/12/2004 mentioning that relating to khatha No.122/1, 122/2, 129/3, 135/4 of Sy.No.81/2 and 81/3 there are no records standing in the name of Narayanappa, Nagaraju and Jayaramu in their records. The ExD16 is marked in evidence as certified copy of the sale deed dated 15/04/1972, but in the said document were mentioned are not properly seen and unable to read the document. Hence the said document is not discussed. In ExD17 thirteen certified copies of endorsements issued by BBMP are marked as ExD17(1) to ExD17(13) those are issued by BBMP, Bengaluru on the application filed by Y.N. Kondareddy under RTI Act relating to information called in respect of house list Nos.122/1, 45 Judgment O.S.No.17071/2004 122/2, 135/4, 129/2, 129/3, site Nos.20, 28, 29, 27, 26, 21, 41, 38, 39, 45, 6, 7, 36, 44, 45 and 42 and the BBMP informed that relating to said sites in Sy.No.81/2, New No.81/3 of Hormavu village, there are no records in their office relating to lay out plan, sanctioned plan in their office. In ExD18 three mutation registers are marked as ExD18 (1) to ExD18(3) relating to transfer of Sy.No.81/2 measuring 1 acre 7 guntas from Narayanappa to Y.N. Kondareddy. The ExD19 is certified copy of Atlas relating to Sy.No.81/2. The ExD20 is certified copy of endorsement issued by Ramamuthy Nagar police station on the application of Y.N. Kondareddy.
37. The ExD22 is certified copy of endorsement issued by Deputy Commissioner, Bengaluru to Y.N. Kondareddy to the information called by Y.N. Kondareddy about conversion of land bearing Sy.No.81/2 of Horamavu village for nonagricultural purpose and Deputy Commission furnished information that there are no records in their office relating to the information called by Y.N. Kondareddy. The ExD23 is certified copy of endorsement issued by Tahsildar, Bengaluru East Taluk 46 Judgment O.S.No.17071/2004 informing that regarding land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village, K.R. Puram hobli, Bengaluru there is no order of conversion for non agriculture. In ExD24 two certified copies of tax paid receipts are marked. The ExD25 is certified copy of application given by Tahsildar by Y.N. Kondareddy for surveying land and making phode in Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village. The ExD26 certified copy of sale deed dt.17/07/1991 discloses that Narayanappa S/o late Chikka Abbaiah, Nagaraj S/o late Chikka Abbaiah, and Jayaram S/o late Chikka Abbaiah i.e. defendants No.1 to 3 have sold 30 Gunatas in Sy.No.81/2 of Hormavu village, K.R.Puram Hobli, Bangalore South Taluk in favour of defendant No.4 Madireddy Sripadmavathi W/o Jagadish. The ExD27 is certified copy of order sheet in OS.No.1208/04 of Prl. Civil Judge (Jr.Dn) Bengaluru Rural filed by Lazarus K against Kondareddy Y.N. and ExD28 is certified copy of order on IA.1 in the said suit. The ExD29 is certified copy of survey sketch and ExD30 is certified copy of mahazar relating to Sy.No.81/3 of Horamavu village. The ExD31 is certified copy of endorsement issued by Asst. Commissioner, 47 Judgment O.S.No.17071/2004 Bengaluru north taluk to Y.N. Kondareddy informing about non filing of any case for purchase of land in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village in violation of Section 79
(a) and (b) of Karnataka Land Reforms Act. The ExP32 is information furnished b the Assistant Revenue Officer, BBMP, Horamavu SubDivision, Mahadevapur Division, Bangalore on application of Y.N.KondaReddy under RTI Act relating to survey sketch, layout plan of Site No.37, House list No.122/2 of Horamavu village, K.R.Puram Hobli is not available in their office and the said property is in revenue extension and the said site is in unauthorized extension.
38. The contention of the plaintiff that he has purchased suit schedule property bearing site No.37 from defendant No.1 to 3 on 13/01/1992. The plaintiff has produced and marked ExP1 to ExP13. The ExP1 is certified copy of sale deed dated 13/01/1992 executed by defendant No.1 to 3 in favour of plaintiff A. Sahadevan Pillai in respect of site No37, house list katha No.122 of Horamavu village. But the plaintiff has not produced original sale deed of suit schedule property. Further 48 Judgment O.S.No.17071/2004 ExP2 and ExP3 are encumbrance certificates, ExP5 sanctioned plan, ExP7 to ExP12 are photographs marked as they belongs to suit schedule property. The plaintiff relying on these documents contending that he is owner of the suit schedule property and after purchase of suit schedule site No.37 from previous owner, he has constructed building in suit schedule property and residing therein along with his family members.
39. On the contrary defendant No.1 examined as DW.1 in his evidence denied regarding execution of sale deed in favour of plaintiff in respect of suit schedule property. The defendant No.1/DW1 in his evidence denied that sites were formed in Sy.No.81/2 of Horamavu village, out of 47 sites formed appointment of the defendant No.4 as their General Power of Attorney and denied defendant No.1 to 3 sold suit site bearing No.37 to the plaintiff. The contention of DW.1 that in Sy.No.81/2 of Horamavu village, K.R. Puram Hobli, Bengaluru south taluk presently Bengaluru East taluk totally measuring 3 acres 17 guntas and originally it belongs to their grandmother Venkatamma and she had executed registered Will on 49 Judgment O.S.No.17071/2004 13/06/1988 in favour of him and his two brothers Nagaraja, Jayarama and sister pillamma that their grandmother sold 1 acre 20 guntas in favour of Munivenkatamma on southern portion of Sy.No.81/2 and retained the remaining land, on her death they acquired the title right, interest over the said portion of land as per the last Will executed in their favour. Hence they become owners of land measuring 1 acre 37 guntas including 6 guntas kharab land in Sy.No.81/2 of Horamavu village. Further he and defendant No.2 and 3 have sold 30 guntas in Sy.No.81/2 of Horamavu village towards southern portion in favour of defendant No.4 Sripadmavathi Madireddy and retained 1 acre 13 guntas including 6 guntas kharab land which is northern portion of Sy.No.81/2 and they were doing agriculture in said land for their livelihood and thereafter for family necessity they have sold 1 acre 13 guntas including 6 guntas kharab land in Sy.No. 81/2 of Horamavu village in favour of defendant No.5 Y.N. Kondareddy in the year 2004, that mistake is crept in mentioning boundary of land in sale deed. Hence they have executed rectification deed rectifying the boundaries immediately and afterwards Y.N. Kondareddy become the 50 Judgment O.S.No.17071/2004 owner of the said property and he got mutated said land and he is in possession and enjoyment of said property.
40. The defendant No.5 Y.N.Kondareddy examined as DW.2 in his evidence deposed the same set of evidence as deposed by DW.1 in his evidence and discussed above. The contention of DW.2 that he has purchased to an extent of 1 acre 7 gunas+ 0.06 guntas of kharab land in old Sy.No.81/2 and new Sy.No.81/3 of Horamavu village after verifying record on 01/03/2004 and become owner of said land and he is possession and enjoyment of said land. There are no sites formed in Sy.No.81/2 of Horamavu village. The suit property is one of site as formed in Sy.No.81/2 of Horamavu village as alleged by the plaintiff is false. The DW.2 in support of oral evidence marked ExD1 to ExD32. The ExD5 is certified copy of sale deed dated 01/03/2004 regarding purchase of 1 acre 13 guntas in Sy.No. 81/2 of Horamavu village by defendant No.5 from defendants No.1 to 3 and ExD6 is certified copy of the Rectification deed of said sale deed regarding rectification of boundaries towards the west, south and north. Further as per 51 Judgment O.S.No.17071/2004 ExD7 mutation register measuring 1 acre 7 guntas in Sy.No.81/2 of Horamavu village transferred from the defendant No.1 to 3 to defendant No.5. Further ExD8 is certified copy of Record of Rights of land bearing Sy.No.81/2 to an extent of 1 acre 7 guntas of Horamavu village, K.R. Puram Hobli, Bengaluru East taluk for the year 200405, wherein column No.9 name of defendant No.5 Y.N.Kondareddy appeared as owner and cultivator of the land and in column No.10 way of possession mentioned as purchase vide MR No.48/20032004. Further ExD9 is Atlas map, ExD10 is Hissa tippani and ExD11 is form No.5 and ExD12 is Karnataka Revision Settlement Aakaar bandh are relating to Sy.No.81/2 measuring 1 acre 07 guntas of Horamavu village in the name of defendant No.5. Further the ExD13(1) to ExD13 (4) Record of Rights of land measuring 1 acre 7 guntas in Sy.No. 81/2 of Horamavu village discloses name of defendant No.5 Y.N. Kondareddy as owner and cultivator of the land for the year 200405 till 200910. Under the circumstances burden is on plaintiff to prove that in land bearing Sy.No.81/2 to an extent of 1 acre 24 guntas of Horamavu village, the defendant No.1 to 3 have formed 47 sites 52 Judgment O.S.No.17071/2004 and sold to different purchasers through their GPA holder defendant No.4. But to prove said fact the plaintiff has not produced the conversion order copy of said land measuring 1 acre 24 guntas in Sy.No.81/2 of Horamavu village for non agriculture purpose issued by competent authority along with layout plan, sketch of said land and also house list numbers given to said 47 sites by concerned authority. The plaintiff contended that suit schedule property house list katha No.122/2 was given, But to prove said fact plaintiff not produced any documents. Further plaintiff examined as PW.1 in his cross examination deposed evidence that "It is not true to suggest that no sites can be made in agriculture land without conversion. But the defendants 1 to 3 not made NA. Witness voluntarily states that revenue sites are made and sold to me. Promising that they are going to convert in future after sale of all the sites. Survey number is not shown in my sale deed. In Grama Panchayat no documents is there to show that our revenue sites are given house list number in Sy.No.81/2. The layout map produced by me is not signed by grama panchayat authorities. It is not true to suggest 53 Judgment O.S.No.17071/2004 that I have false created ExP4. No any Government authorities signed to ExP4. Defendant 1 to 3 not signed to ExP4". The PW.1 in his cross examination further deposed evidence that "I know the details of schedule property in my sale deed. I have given my schedule property in plaint also. In plaint I have stated suit property is part of Sy.No.81/2, but survey number is not shown in my sale deed. I know the boundaries of sale deed and plaint. I have not read the sale deed of Kondareddy. I do not know what is the boundaries of sale deed of 5th defendant. I am not aware that boundaries of my sale deed and boundaries of sale deed of 5th defendant are different. I have not seen the sale deed of 5th defendant". Therefore from the evidence of PW.1 it is clear that in the sale deed of plaintiff survey number is not mentioned. The plaintiff has not produced layout plan regarding formation of 47 sites by defendant No.1 to 3 in Sy.No.81/2 measuring 1 acre 24 guntas of Horamavu village and also not produced for conversion order of said land issued by competent authority. Further in schedule of ExP1 sale deed there is no 54 Judgment O.S.No.17071/2004 mention that in Sy.No.81/2 of Horamavu village the suit schedule property bearing site No.37 is formed.
41. The DW2 marked ExD17(1) discloses that house list number 122/1, 122/2, 135/4, 124/2, 129/3, relating to Sy.No. 81/2 new Sy.No.81/3 of Horamavu village, the documents are verified in the office but said documents are not found in revenue records in the name of Narayanappa, Nagaraja and Jayaram. Further ExD17(2) endorsement discloses that no sanction plan or layout plan relating to site No.20, 29, 27, 28, 26, 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45 and 42 of Sy.No.81/2 new Sy.No.81/3 of Horamavu village are not found in their records and as such documents are not in the name of Narayanappa, Nagaraja and Jayaram in office records. In ExD17(3) the defendant No.5 called information regarding furnishing copies of kathas of site No.20, 29, 28 27, 26, 37, 21, 41, 38, 4, 5, 6, 7, 36, 34, 44, 45, 42, 23 in katha No.122/2, 122/1, 135/4 of Horamavu village and Revenue Officer furnished information that Namoonas No.9 and 10 of said property are not in the name of Nagaraju, Narayanappa and Jayaram. Further ExD23 endorsement issued by Tahsildar, Bengaluru East Taluk mentioning that in Sy.No.81/3 measuring 1 55 Judgment O.S.No.17071/2004 acre 17 guntas of Horamavu village there is no conversion of land. Therefore from ExD23 it is clear that relating to said land Sy.No.81/2 new Sy.No.81/3 to an extent of 1 acre 24 Guntats of Horamavu village, there is no order regarding conversion of land for agriculture purpose. Therefore from these documents produced and marked by DW.2 as discussed above, it is clear that relating to the land measuring an extent of 1 A07 Guntas purchased by the defendant No.5 from defendant No.1 to 3, there is no conversion order of said land for non agriculture purpose and further records of rights marked by DW2 as ExD8, ExD13(1) to ExD13(4) discloses that the land measuring 1 Acre 07 Guntas in Sy.No.81/2 of Horamavu village in the name of defendant No.5 Y.N. Kondareddy is agricultural land. Hence at the time of filing suit by plaintiff in the year 2004 said land is agricultural land. That in the citation reported in ILR 2005 Karnataka 884 relied by the defendant No.5 counsel it is held that "Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted." Further in the another citation reported in ILR 2007 Karnataka 339 relied by the defendant No.5 counsel it is held that 56 Judgment O.S.No.17071/2004 "In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suitFurther held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential reliefThe appropriate relief consequential to declaration of ownership would be recovery of possession of the property When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainableCourt below was justified in dismissing the suit as not maintainableAppeals are dismissed". The both citation discussed above applies to the present case in hand, as in the present suit the plaintiff failed to prove his lawful ownership possession and enjoyment over the suit schedule property as on date of suit, hence question of interference by the defendants in the said property does not arise. Hence plaintiff is not entitle for relief of permanent injunction against the defendants. The plaintiff failed to prove Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative.
57
Judgment O.S.No.17071/2004 42. Issue No.4:
In view of above discussion I proceed to pass the following :ORDER:
The suit of the plaintiff is here by dismissed with costs.
Draw decree accordingly.
(Dictated to the stenographer, typed by him, then corrected online, taken print out, corrected, signed and pronounced by me in the open court on this 22 nd day of September 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
:ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1 A. Sahadevan Pillia S/o Achuthan Pillai DOCUMENTS MARKED FOR THE PLAINTIFF ExP1: The certified copy of sale deed dated 13/01/1992, ExP2: Encumbrance Certificate ExP3: Encumbrance Certificate ExP4: Copy of the layout plan, 58 Judgment O.S.No.17071/2004 ExP5: Sanction plan, ExP6: Receipt for having remitted tax, ExP7 to 12: Original photos, ExP13: Copy of the complaint.
WITNESSES EXAMINED FOR THE DEFENDANTS DW.1: Narayanappa S/o Venkataswamappa @ Chikkabbaiah DW.2: Y.N. Kondareddy S/o Narayanreddy DOCUMENTS MARKED FOR THE DEFENDANTS ExD1: Certified copy of plaint in OS No.3483/2005 ExD2: Certified copy of Written Statement in OS No.3483/2005 ExD3: Certified copy of plaint in OS No.16322/2005 ExD4: Certified copy of Written Statement in OS No.16322/2005 ExD5: Certified copy of sale deed dated 01/03/2004 ExD6: Certified copy of Rectification deed ExD7: Certified copy of Mutation ExD8: Certified copy of RTC ExD9: Certified copy of Atlas copy ExD10: Certified copy of Hissa Tippani copy ExD11: Certified copy of Form No.5 ExD12: Certified copy of the Karnataka Revision Settlement Akhar Bandh ExD13(1) to ExD13(4): Certified copy of RTC's ExD14: Certified copy of Encumbrance Certificate 59 Judgment O.S.No.17071/2004 ExD15: Certified copy of Endorsement by Horamavu Grama Panchayath ExD16: Certified copy of Sale deed dated 15/04/1972 ExD17(1) to ExD17(16): Certified copies of endorsements ExD18(1) to ExD18(3): Certified copies of Mutation Register Extracts ExD19: Certified copy of Atlas ExD20: Certified copy of endorsement issued by police, ExD22: Certified copy of Endorsement issued by Deputy Commissioner ExD23: Certified copy of Endorsement by Tahasildar ExD24(1) & ExD24(2): Certified copies of Receipts ExD25: Certified copy of Application given to Tahasildar ExD26: Certified copy of Sale deed dated 17/07/1991 ExD27: Certified copy of Order sheet in OS No.1208/2004 ExD28: Certified copy of Order on IA No.1 in OS No.1208/2004 ExD29: Certified copy of Survey Sketch ExD30: Certified copy of Mahazar ExD31: Certified copy of endorsement by Assistant Commissioner, Bangalore North ExP32: Copy of information furnished by Assistant Revenue Officer, BBMP, Horamavu SubDivision, Mahadevapur Division, Bangalore XIII ADDL.CITY CIVIL AND SESSIONS JUDGE 60 Judgment O.S.No.17071/2004 MAYOHALL UNIT; BANGALORE.