Bangalore District Court
Mallika vs Dilip J Mansukhani on 27 November, 2024
KABC010167952007
IN THE COURT OF THE XLI ADDL.CITY CIVIL AND
SESSIONS JUDGE : AT BANGALORE [CCH-42]
:PRESENT:
SMT. SUMANGALA CHAKALABBI, B.A. LL.B. (Hons.), LL.M.
XLI Addl. City Civil and Sessions Judge,
Bengaluru
Dated this the 27th day of November 2024
O.S. NO.8335/2007
PLAINTIFF : Smt.Mallika,
w/o Sri Hanumanthaiah.
Aged about 29 years,
Residing at No.3355, 4th Cross,
Gayathri Nagar,
Bengaluru - 560 021.
(By Smt. D. Leelakrishnan, Advocate)
V/s.
DEFENDANTS: Sri Dilip J.Mansukhani,
S/o Jagatrai S. Mansukhani,
aged about 55 years,
O.S No.8335/2007
2
residing at No.39, 3rd Lane, 3rd Cross,
Lalbagh Road,
Bengaluru - 560027,
Represented by his GPA Holder,
Sri Javari Malani,
S/o Hassaram Malani,
Aged about 41 years,
residing at No.39, 3rd Lane, 3rd Cross,
Lalbagh Road,
Bengaluru - 560 027.
(By Sri. G.D., Advocate)
Date of Institution of the Suit: 11.10.2007
Nature of the suit
(Suit on Pronote, suit for Suit for
declaration & possession, suit Injunction
for injunction)
Date of commencement of 03.10.2009
recording of evidence:
Date on which the Judgment 27.11.2024
was pronounced:
Total Duration: Year/s Month/s Day/s
17 01 16
O.S No.8335/2007
3
JUDGMENT
The plaintiff has filed this suit against the defendant for the relief of permanent injunction restraining the defendant or anybody claiming through him from interfering with the peaceful possession and enjoyment of the suit schedule property.
2. The case of the plaintiff in brief is that :
The Plaintiff submits that the property bearing No.47/A House List Khatha No.952/A situated Dasarahalli Village, K.K.Puram Hobli. Bangalore Eazt Taluk measuring East to West 34 + 39/2 Feet and North to South 62.5 + 67.5/2 Feet, morefully described in the Schedule, is one of the sites formed out of 1 Acre and 34 Guntas of land in Survey No.37/2, which originally belonged ane Sri Munikempanna, S/o Late Beeгарра.
O.S No.8335/2007 4 2.1 It is submitted further that the said Sri Munikempanna was actually in possession and enjoyment of measuring 2 Acres and 23 Guntas and he was cultivating the said the land as an absolute owner.
2.2 Sri Munikempanna had sold the said aforesaid land in favour of (1) Sri Muniyappa, @ Tayappa and Sri Chickka Muniyappa under the Sale Deed dated 08.09.1988, which has been duly registered in the Office of the Sub-
Registrar, K.R.Puram, Bangalore. The said Muniyappa @ Thayappa and Sri Chickka Muniyappa sold the remaining land in favour of (1) Smt. Ravilal Lakshmi Rajan Sri Ravilal Rajan.
2.3 Sri Muniyappa, @ Tayappa and Sri Chickka Muniyappa in turn bifurcated the said lands and sold 1 Acre 34 Guntas in favour of one Smt.V.Ramalakshmi, W/o Sri V.M.Venkatasubbalah and Sri V.Ramaiah, S/o Late Appalraju, O.S No.8335/2007 5 under the Sale Deed 13.12.1995, which was registered on 17.01.1997 in the office of the Sub-Registrar, K.R.Puram. The said V.Ramalakshmi, W/o Sri V.M.Venkatasubbalah and Sri V.Ramaiah, were put in possession and enjoyment of the said lands measuring 1 Acre and 34 Guntas and their names had been mutated in the revenue records. They in turn formed a residential layout in the said lands and on other adjacent lands which were acquired by them. Subsequent to the formation of residential layout, the said Ramalakshmi and Sri V.Ramaiah sold sites to different persons and the Schedule property was sold by them in favour of Smt..Pushpa Anand W/o G.V.Anand Kumar and Smt.Kusuma Natesh Kumar, W/o Natesh Kumar under the Sale Deed which has been duly registered on 19.10.2002, and they were put possession and enjoyment of the Schedule property as an absolute owners thereof.
O.S No.8335/2007 6 2.4 The said S.Pushpa Anand and Smt Kusuma Natesh Kumar in their turn sold the Schedule property in favour of the Plaintiff herein under the registered Sale Deed dated 06.02.2003, and the plaintiff was put in possession and enjoyment of the Schedule property. She got the Khata transferred in her name and she is paying the taxes regularly. The plaintiff in turn has put a building measuring about one square and compound on the schedule property and due financial crisis the plaintiff could not put further construction. She has also obtained electricity connection by depositing the required amount with the Bangalore Electricity Supply Company Limited. The plaintiff has obtained sanctioned plan and licence to put up construction on the Schedule Site.
2.5 When the things stood thus, the defendant having no manner of right, title and interest over the schedule property tried to demolish the compound wall and house O.S No.8335/2007 7 measuring 1 square on the plea that the schedule property belongs to him. Thereafter, the plaintiff approached the jurisdictional police. Thereafter, again on 01.08.2007 the defendant along with some rowdy elements tried to demolish the house and compound wall. The plaintiff through her husband had several discussions with the defendant, but it went in vain and the defendant continued to threaten the plaintiff that he would demolish the house and compound wall.
2.6 The Plaintiff further submits that the Defendant along with his henchmen continued to threaten the plaintiff to extract monetary benefits from the Plaintiff and as result the Plaintiff and her family members have been put to mental agony, harassment and hardship. The Police Authorities have declined to interfere in the matter as it is civil in nature. Therefore, plaintiff being left with no other alternative had O.S No.8335/2007 8 approached a Hon'ble Civil Judge, (Junior Division), Bangalore Rural District, Bangalore by filing an Original Suit. 0.5.No.1463/2007. After hearing and perusing the records on 04.08.2007, the court was pleased to grant ex-parte injunction against the defendant.
2.7 The defendant entered appearance and filed an application with respect to maintainability for want of Jurisdiction. The Learned Judge had directed the Office to verify the same and submit a report regarding jurisdiction. Accordingly, the office had submitted a report stating that this Court has jurisdiction to try the suit and the said suit was referred to the Hon'ble Judge, Bangalore Rural Court by oversight. The plaintiff filed a memo on 09.10.2007 seeking permission to withdraw the said Suit and the Learned Judge permitted the Plaintiff to withdraw the same and therefore, the Plaintiff has filed the present suit before this court.
O.S No.8335/2007 9 2.8 The cause of action for this suit arose on 30.07.2007, when the Defendant tried to demolish the house on 01.08.2007 when the Defendant threatened to demolish the house on 03.08.2007 ; when the Plaintiff filed Original Suit before Bangalore Rural District and obtained ex-parte interim injunction against the Defendant, subsequently when the Suit was withdrawn on 09.10.2007 for want on of jurisdiction.
3. After service of summons, the defendant appeared through his counsel and filed his written-statement denying the plaint averments and calling upon the plaintiff to prove the plaint averments. In the written-statement the defendant has taken the following contentions:
3.1 That the suit of the plaintiff is false and frivolous. 3.2 The plaintiff is not in possession of the property in question and hence, the suit is liable to be dismissed.
O.S No.8335/2007 10 3.3 There is no cause of action against the defendant as alleged by the plaintiff.
3.5 The Defendant is a businessman and is having his business at Japan and Bangalore and he is represented by his Power of Attorney holder.
3.6 The defendant is the absolute owner in possession and enjoyment of the schedule property right from the date of his purchase in the year 1995 and the plaintiff is not at all in possession of the property in question since the property in question is vacant till date.
3.7 The defendant further submits that survey No. 37/2 of Dasarahalli village is the property of one Thayappa and six others. The said Thayappa and others had executed a power of attorney in favor of one Shri Venkatasubbaiah S/o Ramaiah in order to sell the property. The said land was formed into O.S No.8335/2007 11 sites. The said Venkatasubbalah sold the sites for and on behalf of the Vendors Le., Thayappa and six others.
3.8 The said Thayappa and others being owners of the land sold six sites bearing No's. 48, 49, 50, 56, 57 and 58 under registered sale deeds in March 1995 and since the date of purchase defendant is in possession of these lands as the absolute owner thereof.
3.9 The defendant further submits that out of the above mentioned six sites, site 57 bearing Khata No.975A, situated at Mariappanapalya, Dasarahalli Dakhale, K.R. Puram Hobli, Bangalore South Taluk was purchased by the Defendant from one Thayappa S/o late Akalappa, Shivanna and 5 others herein by virtue of registered deed through their power of attorney holder Shri Venkatasubbiaha. The defendant upon purchase has been put in possession of the site measuring in total 3920 sq ft and measuring East to West 49 ft and North to O.S No.8335/2007 12 South 80 ft and bounded on the East by site no 56, west by site No. 58, North by site No. 48 road, South by road which is the 'Written Statement Schedule Property'. The said site was sold on the basis of a layout map of which sites were formed.
3.10 Ever since the date of purchase the defendant is in possession and enjoyment of the property. The defendant has continued to exercise all rights of ownership over the property. The encumbrance of the property stands in the name of the plaintiff. The defendant had all these years kept the schedule property vacant in order to develop the same and reside in the same.
3.11 The defendant submits that the plaintiff herein alleges to have purchased site no 47-A from Smt. S. Pushpa Anand W/o G.V. Anand Kumar and Smt. Kusuma Natesh Kumar W/o Natesh Kumar under sale deed dated 6-2-2003 and In turn the said Smt. S. Pushpa Anand and Smt. Kusuma O.S No.8335/2007 13 Natesh alleged to have purchased the site in question from Ramaiah vide deed dated 19-10-2002, and Ramalakshmi and Ramaiah were none other than the wife and father of Venkatasubbiaha i.e., the very person who had sold the property i.e., six sites to this Defendant on the basis of power of attorney in the year 1995 .
3.12 All this was the fraudulent work of the original owners and Venkatasubbaiah, his wife and father and this was done with ulterior and dishonest motive to cheat the defendant. No possession was handed over to the plaintiff as per her alleged said sale deed since this defendant was already in possession of the six site properties purchased by him in March 1995 including the written Statement schedule property along with site no 's 48, 49, 50, 56 and 58.
3.13 Further, the said Venkatasubbaiah, his wife and father have colluded with the original owners after the O.S No.8335/2007 14 purchase of the lands by the defendant and later on they have fraudulently created a dummy layout map. They have fraudulently superimposed the earlier layout map with a different layout map containing partially the same site numbers and partially different site numbers. In the second layout map site no's 48, 57, and 58 purchased by the defendant were fraudulently superimposed with sites of different numbers namely 48 (in the place of earlier site no 48 and 57), and 47/A (in the place of earlier site no 58) in the second layout map.
3.14 The persons who fraudulently superimposed these site numbers had in fact not purchased either these sites or the schedule property in their alleged purchase deed dated 13-12-95 bearing No 9568/95-96 from the original owners i.e., Thayappa and six others. On the other hand to O.S No.8335/2007 15 escape notice of their fraud they purported to purchase the survey number 37/2 in terms of acreage of land.
3.15 The property sold to the defendant in March 1995 in the form of six sites by Venkasubbiaha as GPA was allegedly again sought to be sold in December 1995 in favor of Venkatsubbiaha's own wife and father in the form of acreage in Survey No 37/2 out of which the sites of the defendant had been formed and sold. All this was done with malicious motives and designs to concoct and set up a false title.
3.16 Thereafter the said Smt. Ramalaxmi and Ramaiah based upon the concocted and superimposed plan alleged to have sold one site No. 47/A to one Pushpa Anand and Kusuma Natesh Kumar vide deed dated 19-02-2002. The said purchasers have in turn sold the said site No. 47/A to the plaintiff in the year 2003 vide dated 06-02-2003. Based upon O.S No.8335/2007 16 the said alleged sale deed the plaintiff is claiming rights over the site No. 57 purchased by this defendant and has instituted the present suit. Even if the second layout map was considered then the said alleged site of the plaintiff does not fall upon site No. 57 of this defendant as shown in his layout map but is situated elsewhere.
3.17 The layout map relied by the plaintiff is fabricated and forged and is a fraudulent document having no validity.
3.18 It is further submitted that the plaintiff is trying to assert her right on the basis of the sale deed dated 6-2- 2003 over property sold by Smt. S. Pushpa Anand and Smt. Kusuma Natesh Kumar. Further as per the layout map of the plaintiff the site over which the plaintiff is asserting the title i.e. Site no.47/A has nothing to do with the written statement schedule property of the Defendant, which is site No.57. With O.S No.8335/2007 17 these contentions, the defendant has prayed to dismiss the suit with exemplary costs.
4. On the above pleadings of the parties, the following issues have been framed by my Predecessor-in-Office on 17.07.2009:
1. Whether the plaintiff proves that he is in lawful possession over the suit schedule property as on the date of suit.
2. Whether the plaintiff proves that the defendants cause obstruction to the peaceful possession and enjoyment of the suit schedule property by the plaintiff.
3. What decree or order?
5. During the course of evidence, in order to prove the case of the plaintiff, the plaintiff examined herself as PW.1 and examined one Mr. Ananda Kumar, who is the husband of O.S No.8335/2007 18 vendor of the plaintiff as PW.2 got marked the documents at Ex.P.1 to Ex.P.19 and closed her side. 5.1 On the other hand, to prove the defence, the GPA Holder of the defendant by name Sri Narayana, is examined as DW.1 and got marked documents at Ex.D.1 to D.13 and closed his side.
6. Heard the arguments of both sides. Perused the records.
7. My findings to the above issues are as under:
Issue No.1 : Does not arise for consideration Issue no. 2 : Does not arise for consideration.
Issue No.3 : As per the final order
for the following:
REASONS
8. POINT Nos.1 and 2:- Since these points are
interconnected with each other, they are taken together for common discussion to avoid repetition of facts.
O.S No.8335/2007 19
9. It is the specific case of the plaintiff that one Sri Munikempanna was actually in possession and enjoyment of measuring 2 Acres and 23 Guntas and he was cultivating the said the land as an absolute owner and in turn said Sri Munikempanna had sold the said Lands in favour of (1) Sri Muniyappa, @ Tayappa and (11) Sri Chickka Muniyappa under the Sale Deed dated 08.09.1988, which has been duly registered in the Office of the Sub- Registrar, K.R.Puram, Bangalore. Further the said Sri Muniyappa, @ Tayappa and Sri Chickka Muniyappa in their turn bifurcated the said lands sold 1 Acre 34 Guntas in favour of one Smt.V.Ramalakshmi, W/o Sri V.M.Venkatasubbalah and Sri V.Ramaiah, S/o Late Appalraju, under the Sale Deed 13.12.1995, which was registered on 17.01.1997 in the office of the Sub-Registrar, K.R.Puram. The said Muniyappa @ Thayappa and Sri Chickka Muniyappa sold the remaining land in favour of Smt. Ravilal Lakshmi O.S No.8335/2007 20 Rajan and Sri Ravilal Rajan. The said Smt.V.Ramalakshmi, and Sri V.Ramaiah were put in possession and enjoyment of the said Lands measuring 1 Acre and 34 Guntas and their names had been mutated in the revenue records. They in turn formed a residential layout in the said lands and on other adjacent lands which were acquired the them.
Subsequent to the formation of Residential Layout, the said Ramalakshmi and Sri V.Ramaiah sold sites to different persons and the Schedule property was sold by them in favour of Smt..Pushpa Anand w/o G.V.Anand Kumar and Smt.Kusuma Natesh Kumar, W/o Natesh Kumar under the Sale Deed which has been duly Registered on 19.10.2002, and they were put possession and enjoyment of the Schedule property as an absolute owners thereof. The said S.Pushpa Anand and Smt Kusuma Natesh Kumar in their turn sold the Schedule property in favour of the Plaintiff herein under the registered O.S No.8335/2007 21 Sale Deed dated 06.02.2003, and the plaintiff was put in possession and enjoyment of the Schedule property. She got the Khata transferred in her name and she is paying the taxes regularly. The Plaintiff her turn has put a building measuring about one square and compound on the schedule property and due financial crisis the Plaintiff could not put further construction. She has also obtained electricity connection depositing required amount with by the Bangalore Electricity Supply Company Limited. The Plaintiff has obtained Sanctioned Plan and Licence to put up construction on the Schedule Site.
10. The defendant in his written-statement admits that one Munikempanna was actually the owner in possession of the lands measuring 2 acres 23 guntas. It is further admitted that, in turn, said Sri Munikempanna had sold the said Lands in favour of (1) Sri Muniyappa, @ Tayappa and O.S No.8335/2007 22 (11) Sri Chickka Muniyappa under the Sale Deed dated 08.09.1988, which has been duly registered in the Office of the Sub- Registrar, K.R.Puram, Bangalore. But the averments that Sri Muniyappa, @ Tayappa and Sri Chickka Muniyappa in turn bifurcated the said lands and sold 1 Acre 34 Guntas in favour of one Smt.V.Ramalakshmi, W/o Sri V.M.Venkatasubbalah and Sri V.Ramaiah, S/o Late Appalraju, under the Sale Deed 13.12.1995, are denied.
11. Further, the contention of the plaintiff that Muniyappa sold the remaining land in 2 Acres 23 guntas in favour of Ravilal Lakshmirajan and Sri Rajan is denied.
12. The contention that Ramalakshmi and Ramaiah had formed a Residential Layout in the said lands and on other adjacent lands which were acquired by them and they sold the sites to different persons and the Schedule property was sold by them in favour of Smt.Pushpa Anand O.S No.8335/2007 23 and Smt.Kusuma Natesh Kumar, under the Sale Deed which has been duly Registered on 19.10.2002, and they were put in possession and enjoyment of the Schedule property as absolute owners is denied.
13. Similarly, the averments that Pushpa Anand and Kusuma Natesh Kumar in turn have sold the schedule property in favour of the plaintiff vide sale deed dated 06.02.2003 are also emphatically and specifically denied.
14. The documentary evidence demonstrates that Ex.P.1 and 2 are the sale deeds executed in favour of Smt. Pushpa Anand and Smt. Kusuma Natesh by Smt. Ramalakshmi and Sri Ramaiah, who are the vendors of the plaintiff and Ex.P.2 is the sale deed dated 06.02.2003, which is the sale deed of the plaintiff. Apart from the sale deeds at Ex.P.1 and P.2, the plaintiff has produced the demand extract in the name of the plaintiff in the year 2003-04 at Ex.P.3, and O.S No.8335/2007 24 for the year 2006-07 at Ex.P4, Ex.P.5 is the receipt for house / land tax assessment for the year 2006-07. She has produced the tax paid receipts dated 05.06.2003 at Ex.P.6, Ex.P.7 to 9 are the tax paid receipts. Ex.P.10 sanction order for power supply issued by BESCOM; Ex.P.11 to P.13 are the receipts issued for payment of application fee, 3mm and device charges. ExP.14 is the sanction plan issued by Secretary, Dasarahalli Gramapanchayath in respect of the proposed building at site No.47A. Ex.P.15 is the sanction letter dated 27.12.2006 issued by Secretary, Gramapanchayath, Dasarahalli. Ex.P.16 is the encumbrance certificate reflecting the execution of the sale deed in favour of vendor of the plaintiff on 19.10.2002 and sale deed in favour of the plaintiff on 06.02.2003. Ex.P.17 is the encumbrance certificate in form No.16 in respect of site No.47A. Ex.P.18 is marked during the cross-examination of DW.1; it is RTC extract of sy.no.37/2 in O.S No.8335/2007 25 respect of 5 acres 36 guntas, wherein the names of the predecessors-in-title of the plaintiff namely Ramalakshmi and Venkatasubbaiah are reflected. Ex.P.19 is the certified copy of the plaint in O.S.No. 3839/2010 filed by the defendant herein wherein the following reliefs are sought:
1. For declaration of ownership in respect of site No.57 formed in sy.no.37/2 at Mariyappan Palya, K.R. Puram ;
2. For the relief of mandatory injunction against the defendants No.15 - BESCOM and alternatively ;
3. To declare that the sale deed dated 13.12.1995 executed in favour of defendants NO.9 and 10 (Ramalakshmi and Ramaiah) by defendants No.1 and 4, Thayappa and Muniyappa is not binding on the plaintiff and
4. To further declare that the sale deed dated 06.02.2003 executed by the defendants No.12 and 13 (Pushpa O.S No.8335/2007 26 Anand and Kusuma Natesh) in favour of defendant No.11 (plaintiff herein) and
5. for the relief of permanent injunction restraining the defendants from interfering with the peaceful possession of the suit property therein.
15. The defendant on the other hand has produced the following documents in his evidence:
Ex.D. 1 Layout plan
Ex.D. 2 to 8 Photographs
Ex.D. 9 Certified copy of sale deed
dated 02.03.1995
Ex.D. 10 Encumbrance Certificate
Ex.D. 11 & 12 Sale deed dated 02.03.1995
Ex.D. 13 Spl. Power of Attorney
Ex.D.14 - 16 Search Maps
Ex.D. 17 Certified copy sale deed
dated 22.02.2002
16. Upon a minute scrutiny of the materials on record it is significant to note that considering the nature of the O.S No.8335/2007 27 written-statement averments, it was the bounden duty of the plaintiff to establish and prove that out of 2 acres 23 guntas of land, Muniyappa and Chikkamuniyappa have sold 1 acre 34 guntas in Sy. 37/2 in favour of Ramalakshmi and Ramaiah under sale deed dated 17.01.1997 and further establish that the remaining portion was sold in favour of Ravilal Lakshmi Rajan and Sri Rajan.
17. The plaintiff ought to have established that Ramaiah and Ramalakshmi had formed a residential layout in the said land and other adjacent lands and had sold the suit schedule property in favour of Smt. Pushpa Anand and Smt. Kusuma Natesh, who are the vendors of the plaintiff.
18. Admittedly, the plaintiff has produced only the sale deed of her vendor dtd 19.10.2002 and the sale deed dtd 6.2.2003 under which she has acquired the suit schedule property as Ex.P1 and P2 . The plaintiff's claim with regard O.S No.8335/2007 28 to the flow of title that Sri Muniyappa, @ Tayappa and Sri Chickka Muniyappa in their turn bifurcated the said land purchased from Munikempanna sold 1 Acre 34 Guntas in Sy.
NO. 37/2 in favour of one Smt.V.Ramalakshmi, W/o Sri V.M.Venkatasubbalah and Sri V.Ramaiah, S/o Late Appalraju, under the Sale Deed 13.12.1995, and they had formed a residential layout in the said land and other adjacent lands and had sold the suit schedule property in favour of Smt. Pushpa Anand and Smt. Kusuma Natesh, which apparently trace the title in favour of the plaintiff from the original owners has not been translated into evidence. There is no evidence to show the execution of tile deeds in favour of the predecessors in title of the plaintiff namely Ramaiah and Ramalakshmi and similarly no revenue records standing in the name of Ramaiah and Ramalakshmi or in the names of Pushpa Anand and Smt. Kusuma Natesh.
O.S No.8335/2007 29 There is no piece of evidence that the predecessors of the plaintiff were enjoying the suit property at different points of time. Section 104 of the Bharatiya Sakshya Adhiniyam , 2023 (Hereinafter refrred as BSA) provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist, and when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section of 105 of the BSA enshrines that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. While Section 106 provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person and further in the case of Manager, Reserve Bank of O.S No.8335/2007 30 India, Bangalore vs. S.Mani, (2005) 5 SCC 100 that mere pleadings of a party cannot be treated as substitute for proof.
19. When the defendant in his written-statement in para no.14 has specifically taken up the plea that defendant is the absolute owner and he is in possession and enjoyment of the suit schedule property right from the date of purchase in the year 1995 and sites nos. 48,57 and 58 purchased by the defendant were fraudulently superimposed with sites of different numbers, viz., site no 48 (in the place of earlier site no. 48 and 57 ) ; and 47A (in the place of earlier site no. 58) in the second layout map and the property sold to the defendant in March 1995 in the form of six sites by Venkatasubbaiah as GPA was allegedly again sought to be sold in December 1995 in favour of Venkatasubbaiah's own wife and father in the form of acreage of land in Survey No. 37/2 and thus based upon the concocted plan the plaintiff is O.S No.8335/2007 31 claiming rights over site no. 57 purchased by the defendant on 2.3.1995. It is obligatory for the plaintiff to disprove the contentions of the defendant and establish the identity, location , geographical situation and existence of the suit property. It is significant to note that the defendant has filed a separate suit in O.S.No. 3839/2010 at Ex.P19 for the relief of declaration of their ownership in respect of site No.57 and for further declaration that sale deed in favour of vendor of the plaintiff and sale deed executed in favour of the plaintiff as not binding on the defendant and the said suit is pending consideration. The documentary evidence produced by the plaintiff does not denote either the independent existence of the suit property or its identity and location. The extracts of the demand registers, tax paid receipts, encumbrance certificate , sanction order passed by the Assistant Executive Engineer BESCOM for granting power O.S No.8335/2007 32 supply together with the payment receipts for grant of sanction, the sanction plan approved by the Gram Panchayat with reference to the suit site are not helpful to disclose the identity, existence and location of the suit property. The plaintiff in her cross examination has feigned ignorance regarding certain material aspects of the controversy involving the suit property, viz., she has pleaded ignorance about the boundaries of the suit property on her first date of cross examination and beneficiary of the conversion order.
20. The plaintiff has examined one Sri Ananda Kumar, son of G.B. Puttaswamy as PW.2, who is the husband of Smt. Pushpa Anand (the vendor of the plaintiff). In his evidence affidavit he has stated that his wife and sister Kusuma has sold the property in favour of the plaintiff and have handed over the possession and since the date of purchase, the plaintiff has been in possession of the suit schedule property O.S No.8335/2007 33 and after the sale, the plaintiff has constructed the compound wall made of bricks and constructed a house in the suit property and brother of the plaintiff Ashok is residing in the suit property but during the cross examination, PW2 has stated that by the time suit site was sold to the plaintiff, compound wall was in existence and to this extent there is a contradiction in the case of the plaintiff as the the plaintiff in her plaint has pleaded that she has put up a one square house and compound wall in the suit property. PW2 has pleaded ignorance regarding the location of the shed and the neighboring owners of the suit site . He has admitted that after 2003 he has not seen the said site and he cannot say exactly at which site the alleged site is located.
21. Upon perusal of the evidence on record, it is evident that both witnesses of the plaintiff have stated before the court that the suit property comprises of O.S No.8335/2007 34 compound wall and a shed, which is having electricity supply. But the plaintiff has not made any endeavour to produce the electricity bills and other documentary evidence in the form of Aadar cards, Ration card, residence proof, etc, to show that the shed situated in the suit schedule property is in the actual possession of the plaintiff. The brother of the plaintiff is stated to be residing in the suit property, but for the reasons best known to the plaintiff, the brother of the plaintiff is not examined before the court to prove the actual possession of the plaintiff in the suit schedule property. The vendors of the plaintiff and her predecessors in title are not examined to prove the flow of title and possession.
22. The power of attorney holder of the defendant namely, DW1 has categorically denied that Muniyappa and Chikkamuniyappa had sold 1 Acre 34 guntas of land under registered sale deed on 13.12.1995 in favour of Ramalakshmi O.S No.8335/2007 35 and Ramaiah and later on Ramalakshmi and Ramaiah sold the suit site in favour of Pushpa Ananad and Kusuma Nateshlumar under sale deed dated 10.10.2002 and the plaintiff purchased the property from Pushpa Ananad and Kusuma Nateshlumar under the sale deed dtd 6.2.2003. DW1 has denied that the defendant is not in the possession of the suit property and admitted that the defendant had lodged a criminal case against Thayappa, Ramalakshmi and Ramaiah in the year 2007 and 2010. DW1 in his evidence has admitted that there is a compound wall in between the RCC building constructed by Shivanand and the suit property lying north south and further admitted that that towards the west of the suit property there is a building measuring 1 Sq. and compound wall on the suit property but he has consistently denied the possession of the plaintiff over the suit property and therefore his evidence does not come in aid to prove the O.S No.8335/2007 36 identity, location and possession of the suit property of the plaintiff.
23. A scrutiny of the evidence on record reveals that that the plaintiff has not endeavored to prove the existence and identity of the suit property so as to remove the cloud and clear the air in respect of suit schedule property. The plaintiff has not taken any pain to get the suit property surveyed with adjacent properties through a local inspection. The defendant in the written statement has admittedly disputed the title of the plaintiff, title of her vendor together with the title of Ramalakshmi and Ramaiah(Vendor's vendor) . No doubt the defendant in the written statement has taken contradictory stand at para no. 20 of the written statement wherein the defendant has stated that the second layout map was mischievously concocted and earlier site no. 48 and 57 were fraudulently superimposed with site no. 48 and site no.
O.S No.8335/2007 37 47/A (suit property ) was superimposed with the earlier site no. 58 ; later on the defendant in para 21 has stated the plaintiff is claiming rights over site no 57 much against his earlier plea that site no. 57 is superimposed with site no. 48 but site no. 48 is not the suit property. The tenor of the cross examination denotes that the defendant has taken a different stance in the cross examination as repeated suggestions are made to PW1 to establish that plaintiff is asserting rights over site no. 48 in the lay out plan at Ex.D1, while it is earlier site no. 57 owned by the defendant . However despite the discrepancy noted above it cannot be said that the plaintiff has proved his lawful possession over the suit property for three fold reasons; 1. In view of the fact the plaintiff has not proved his pleadings as recorded above for 2. On the principle that whenever a party approaches the Court for a relief, based on the pleadings and issues, he has to prove his O.S No.8335/2007 38 case. A suit has to be decided based on merits and demerits of the party who approaches the Court. Weakness of the Defendant cannot be considered as a trump card for the Plaintiff; 3. The defendant has raised cloud on the title of the plaintiff by institution of a separate suit in O.S.No. 3839/2010 which is pending adjudication.
24. It is pertinent to note that Hon'ble High Court of Karnataka in T.L.Nagesh Babu Vs. Manohar Rao Pawar reported in ILR 2005 KAR 884 it is held that unless the court is satisfied with regard to material details in the light of material evidence with regard to identification of the property, no relief can be granted. It is well settled that the overall correct description of the property is essential for the grant of relief of injunction and description should accurately identify the correct property so that effectiveness can be granted to the relief of injunction decree but in the case on hand the O.S No.8335/2007 39 defendant has not only disputed the title of the plaintiff but also the identity of the suit property. However the above suit is only for injunction simplicitor and there is no issue of title involved and therefore this court cannot record any finding on title unless there are proper pleadings and issue touching the issue of title. The plaintiff cannot seek to prove his title and defeat the right claimed by the defendant without initiating proper proceedings for declaration of title.
25. Chapter VI of the Specific Relief Act 1963 provides for Declaratory Decrees under Section 34 of the Act and is the present law which governs declaratory reliefs in India. It reads:
Section 34.Discretion of Court as to declaration of status or right:Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
O.S No.8335/2007 40 PROVIDED that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation: A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee.
26. The object of this Section is obviously to provide a perpetual bulwark against adverse attacks on the title of the plaintiff, where a cloud is cast upon it, and to prevent further litigation by removing existing cause of controversy. Therefore, the suit for injunction without declaration is not maintainable. In Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 it is held that where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy and therefore the present suit without declaration is not maintainable. The plaintiff has not only failed to prove the identity and existence of the suit O.S No.8335/2007 41 property but also he has failed to prove that the suit for injunction simplicitor is maintainable in the absence of relief of declaration. Therefore on both these counts the suit of the plaintiff is not maintainable.
27. Therefore, on the overall assessment of documents produced by both the parties, the plaintiff has failed to prove the existence of the suit property and therefore the question of the plaintiff proving her lawful possession on the suit property does not arise. . Therefore issue no.1 & 2 do not arise for consideration.
28. ISSUE No.3 :- In view of my findings on Point Nos.1 and 2, I proceed to pass the following:
ORDER The suit of the plaintiff is dismissed.
O.S No.8335/2007 42 Draw decree accordingly.
(Dictated to the Senior Shirestedar (Stenographer Grade-I), transcribed and typed by her, corrected, signed and then pronounced by me in the open court, on this the 27th day of November 2024).
(SUMANGALA CHAKALABBI) XLI Addl. City Civil and Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 - Smt. Mallika - 03.10.2009 Pw.2 - Sri Ananda Kumar - 17.07.2010
b) Defendants' side:
DW.1 - Sri Narayana - 29.11.2010 II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Sale deed dated 19.10.2002
Ex.P.2 Sale deed dated 06.02.2003
O.S No.8335/2007
43
Ex.P.3 to P.5 Tax demand Register
Ex.P.6 to 8 Tax paid receipts
Ex.P.9 Tax payment challan
Ex.P.10 Letter of AEE, BESCOM dated
04.07.2007
Ex.P.11 to 13 Electricity Bill
Ex.P.14 Plan
Ex.P.15 Permission letter for
construction
Ex.P.16 Encumbrance certificate
Ex.P.17 Encumbrance Certificate
Ex.P.18 RTC extract
Ex.P.19 Plaint in O.S.No. 3839/2010
b) Defendants' side :
Ex.D. 1 Layout plan
Ex.D. 2 to 8 Photographs
Ex.D. 9 Certified copy of sale deed
dated 02.03.1995
Ex.D. 10 Encumbrance Certificate
Ex.D. 11 & 12 Sale deed dated 02.03.1995
Ex.D. 13 Spl. Power of Attorney
Ex.D.14 - 16 Search Maps
O.S No.8335/2007
44
Ex.D. 17 Certified copy sale deed
dated 22.02.2002
(SUMANGALA CHAKALABBI)
XLI Addl. City Civil and Sessions Judge, Bengaluru.
O.S No.8335/2007 45