Bangalore District Court
Mr.K.Vijayakumar vs Mr.R.Rangaswamy on 12 August, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
DATED: THIS THE 12th DAY OF AUGUST 2015
O.S.No.1938/2011
Plaintiff:- Mr.K.Vijayakumar,
Aged about 56 years,
S/o.Sri.Venkatasubbaiah,
R/at No.C-38, AAI Colony,
Cambridge Layout, Ulsoor,
Bangalore-560 008.
(By Sri.M.A.Sebastian, Advocate)
-VS-
Defendants:- 1. Mr.R.Rangaswamy,
Aged about 68 years,
S/o.Rangappa,
R/at No.44, 6th Cross,
Muneshwara Nagar,
Devasandra Post,
K.R.Puram,
Bangalore-560 036.
2 O.S.No.1938/2011
Also at:
R/at No.69, HAS Katha No.44,
6th Cross, S.V.Layout,
Ektha Nagar,
Bangalore-560 036.
2. Mr.M.Balasubramanyam,
Major,
S/o.Sri.M.Muthu,
TTA, Central Telegraph
Office, Beach Road,
Chennai - 600 001.
Also at:
No.69, Kalappa Layout,
Behind Hamsa Club,
Basavanagar,
Marathahalli P.O.
Bangalore -560 037.
3. Mr.Suresh,
Aged about 41 years,
S/o.Sri.Appa Saheb Patil,
P.B.No.2378/75832-66,
DIV.O/H, Store Dept.
HAL (BC), Bangalore-560 017.
Also at:
No.G-1379, HAL East
Extn.Colony
11th Cross, Marathahalli Post,
3 O.S.No.1938/2011
Bangalore-560 037.
(Deft.1 &2 by M.Ananth Bhat &
Associates- Advocates
Deft.3 by Sri.S.B.Hebballi,
Advocate)
Date of Institution of the suit : 14.03.2011
Nature of the suit : Possession
Date of commencement of
recording of the evidence : 21.03.2012
Date on which the Judgment was
pronounced : 12.08.2015
Total Duration Years Months Days
: 04 04 29
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
J U D G M E N T
This suit is filed by the plaintiff for possession and mandatory injunction against the defendants in respect of the suit schedule property.
4 O.S.No.1938/2011
2. The case of the plaintiff is that the plaintiff is the absolute owner of property bearing site No.69, in private layout formed in the Sy.No.175/4 along with land in other Survey Numbers 175, 175/2, 175/4 and 185/6A of Doddanekkundi village, K.R.Pura Hobli, Bengaluru South Taluk having purchased the same under a registered Sale Deed dated.27.10.1989. The original Sale Deed and revenue records pertaining to the suit property are produced in O.S.No.16180/2003 on the file of the IV Addl. City Civil & Sessions Court, Mayo Hall Unit (CCH.21). The plaintiff got the khatha of the property transferred in his name in HAL. Sanitary Board and was paying tax to the jurisdictional authority. The plaintiff has paid betterment charges of Rs.25,675/- on 30.6.2000 when the area was brought under the jurisdiction of CMC, Mahadevapura. The khatha is standing in the name of plaintiff. The plaintiff was in 5 O.S.No.1938/2011 peaceful possession and enjoyment of the suit schedule premises which is a vacant site since the date of purchase.
3. The plaintiff has further stated that the land Sy.No.175/4 belonged to N.A.Seetharama Reddy who developed the private layout and sold the schedule property to the plaintiff through his General Power of Attorney holder Sri.Vasudeva. Since the sites are formed and sold by forming a private layout, the same are not reflected in the RTC and the RTC of Sy.No.175/4 still continued to be standing in the name of the vendor of the plaintiff. The plaintiff is an employee under the Airport Authority of India and residing in the Govt. quarters. The plaintiff has purchased the suit property to make the house of his own to live after vacating the service quarters and used to visit the site occasionally. The plaintiff has applied to CMC Mahadevapura for sanction of plan and license for the 6 O.S.No.1938/2011 construction of the residential building in the suit schedule property and also has applied for the housing loan from ICICI Home Finance.
4. The facts being so, on 26.3.2003 when the plaintiff went for cleaning up the area and prepare for putting up house construction, plaintiff noticed that the temporary shed is put up in the suit schedule premises by somebody. Meanwhile, the plaintiff has got the plan sanctioned for residential building in the schedule premises as per LP No.149/2003-04 dated.13.05.2003 from the CMC, Mahadevapura. The plaintiff has sought the assistance of the jurisdictional police in protecting his property from the trespasser, but the police did not assist the plaintiff and refused to intervene stating that the matter is civil in nature and directed him to approach the civil Court for the relief. On enquiry, the plaintiff came to know that shed is put up by 7 O.S.No.1938/2011 the defendant No.1 who is the trespasser into the suit schedule premises. The plaintiff filed the suit in O.S.No.16180/2003 for mandatory injunction with consequential relief against the defendant No.1 and also made the original owner Sri.N.A.Seetharam Reddy and his General Power of Attorney holder Sri.Vasudeva who are the vendors of the plaintiff as defendants. During the pendency of the said suit, defendant No.1 removed the temporary structure and with the assistance of rowdy elements, put up permanent structure in a portion of the suit schedule premises. The defendant No.1 has contended that he has acquired the property bearing No.10 and 11 khatha No.176/A in Sy.No.176 of Doddanekundi village, K.R.Puram Hobli, in the year 1998. The defendant No.1 did not produce any title deeds before the court. In the said suit, defendant No.1 also claimed to have sold one of the sites to defendant No.3 with 8 O.S.No.1938/2011 the description of site No.10 and the remaining portion constructed with a building therein during the pendency of the said suit was claimed to be sold to defendant No.2 as site No.11. The alleged site Nos.10 and 11 are non-existing in the area of the location of the suit schedule property as per the layout plan furnished by the plaintiff. The plaintiff requested CMC, Mahadevapura to furnish the copy of the documents of the property with the description furnished under Right to Information Act. As per reply/endorsement dated.9.11.2006 issued by CMC, Mahadevapura, no such property is in existence as per the records maintained by the said office.
5. The plaintiff has further submitted that the constructed area in the portion of the suit schedule property is presently in possession of the defendant No.2 and the remaining area is lying vacant. The 1st defendant has also 9 O.S.No.1938/2011 encroached upon the portion of the layout road. The said suit O.S.No.16180/2003 came to be dismissed on 03.12.2009 on the ground that the plaintiff was not in possession of the suit schedule property as on the date of filing of the suit. The plaintiff has filed R.F.A.No.296/2010 which is pending before the Hon'ble High Court of Karnataka. The plaintiff is the absolute owner of the suit schedule property and he was in peaceful possession till March 2003 when the defendant-1 has trespassed into the suit schedule property. Later on, during the pendency of O.S.No.16180/2003, defendant No.1 put up illegal structure on a portion of the suit schedule premises. The plaintiff has approached the office of the Hon'ble Lokayuktha. In the proceedings before the Hon'ble Lokayuktha and the revenue officer of the BBMP, Mahadevapura, has submitted the report confirming that the suit schedule property forms part of land in Sy.No.175/4 and 10 O.S.No.1938/2011 also confirming as per the records maintained by them, the plaintiff is the absolute owner and Revenue records standing in the name of the plaintiff having paid betterment charges and no khatha has been issued in the name of the defendant No.1 with respect to the said premises. Based on the report submitted by BBMP, Mahadevapura, Lokayuktha issued an endorsement dated.1.9.2007 directing the plaintiff to approach the Civil Court thereby closed the proceedings before the Hon'ble Lokayuktha. Meanwhile, the plaintiff has approached the Joint Commissioner, BBMP requesting them to inspect the premises and to fix the boundaries of site No.69, in Sy.No.175/4 owned by him by paying the betterment charges. Based on the representation of the plaintiff as per the order RO/PR/1167/08-09 of the Asst. Revenue Officer, BBMP Surveyor, Mahadevapura Range, has inspected the suit schedule premises and drawn up the 11 O.S.No.1938/2011 sketch and made report confirming the position of the suit schedule premises and the occupation of the same illegally by defendant No.2 in the constructed portion measuring an extent of 30x 39 ft. and the remaining 30x31 ft. as vacant land. The BBMP also confirmed that the defendant No.2 is in occupation of the portion of the suit schedule premises by putting up the structure. The structure put up by the defendants in a portion of suit schedule property and at present in occupation of defendant No.2 is an illegal construction.
6. The plaintiff has further submitted that defendant No.1 has taken advantage of the plaintiff staying away from the suit schedule premises in the Govt. quarters has illegally trespassed into the suit schedule premises in the month of March 2003 and without obtaining any necessary permission from the competent authorities has put up illegal 12 O.S.No.1938/2011 structure and inducted defendant No.2 in the said constructed portion and also defendant No.3 in the remaining extent of vacant portion by giving fictitious property numbers which is not in existence. The defendants are required to remove the illegal structure put up in the suit schedule premises after dispossessing plaintiff and forcibly occupying the same by trespassing, failing which the plaintiff is entitled to remove the same at the cost of defendants through the machinery of the court. Therefore, the plaintiff has filed the suit for possession and mandatory injunction directing the defendants to remove the structure put up in the suit schedule premises.
7. In response to the suit summons, the defendants have appeared through their learned respective counsel and resisted the claim of the plaintiff by filing their separate 13 O.S.No.1938/2011 written statements on similar set of facts. Defendants 1 and 2 have denied all the allegations and assertions made in the plaint and also shown their ignorance about the various facts particularly, that the plaintiff has purchased the site No.69 in the private layout formed in Sy.No.175/4 through registered Sale Deed. However, the defendants have admitted that suit in O.S.No.16180/2003 filed by the plaintiff and appeal arising out of the Judgment & Decree passed in the said suit pending before the Hon'ble High Court of Karnataka. In turn, the 1st defendant has submitted that the plaintiff has deliberately suppressed the material facts. Defendant No.1 purchased a property bearing site No.11, HASB khatha No.176/A situated at Doddanekkundi village, K.R.Puram Hobli, Bengaluru South Taluk as specified in the schedule through registered Sale Deed dated.20.3.1998 from one Sri.N.A.Ramakrishna Reddy s/o. N.Appanna Reddy, 14 O.S.No.1938/2011 who was the owner in possession of the property. Defendant No.1 has purchased one more site No.10, H.A.S.B. khatha No.176/115, situated at doddanekkundi village, K.R.Puram Hobli, Bengaluru South Taluk along with 1 square A.C.sheet roofed house through registered Sale Deed dated.01.06.1999 from the said N.A.Ramakrishna Reddy. Since the date of purchase, defendant No.1 was put in peaceful possession and enjoyment of the respective sites by his vendor from the date of purchase. Defendant No.1 has paid the tax in respect of the said properties and khathas of the same stand in the name of the defendant No.1. He being the absolute owner of site No.10 and 11 has sold the same to defendant No.2 and 3 under separate Sale Deeds and they are in peaceful possession and enjoyment of the same. The plaintiff who claims that he has purchased site No.69 (suit schedule property and he is in possession of the same and as 15 O.S.No.1938/2011 admitted by plaintiff it is clear that the said site is formed in Sy.No.175/4 of Doddanekkundi village, and the sites purchased by the defendant No.1 are formed in Sy.No.176. Hence the plaintiff under wrong impression is claiming the property owned by the defendants as his property. The plaintiff is making efforts to claim the site No.10 and 11 as site No.69 in reality which is not in existence in the locality where the site No.10 and 11 are existing. The suit is barred by limitation and also as per Sec.11 of CPC, there is no cause of action to file this suit. The plaintiff has not valued the suit property properly and Court Fee paid is insufficient. Therefore, defendants 1 and 2 have prayed to dismiss the suit without further enquiry with exemplory costs.
8. Defendant No.3 has denied all the allegations and averments made in the plaint as false. However he has admitted that the defendant No.1 took a defence in 16 O.S.No.1938/2011 O.S.No.16180/2003 filed by the plaintiff on an earlier occasion that he has sold the site No.10 formed in Sy.No.176 of Doddanekkundi village, under registered Sale Deed dated.25.2.2002. On the basis of the registered Sale Deed, the khatha has been changed in the name of defendant No.3 and he is paying the tax to the local body and he has been put in possession of the site on the date of sale. The cause of action alleged in the suit is imaginary. It is the specific contentions of the plaintiff that he was dispossessed during March 2003. If that is so, suit for possession filed during the year 2011 is barred by time as he has faced to prove his previous possession. Pendency of R.F.A.No.296/2010 on the file of the Hon'ble High Court of Karnataka as against the decree in O.S.No.16180/2003 does not affect the right of defendant No.3 in any way. Defendant No.3 has further submitted that the suit in the present form is not 17 O.S.No.1938/2011 maintainable unless the plaintiff seeks relief of declaration of title; he is not entitled to consequential relief of possession. It emerges that the plaintiff is put to strict proof of identity of the property. When the defendants 2 and 3 are in lawful possession based on clear title deeds, the plaintiff cannot drag the defendants and contend that they are in possession of his property, it is highly improbable to contend that the properties owned by defendants 2 and 3 itself is not in existence. The plaintiff is making futile attempts to set up title in the property owned by defendants 2 and 3. What emerges from his own averments is that his property lies somewhere and is unnecessarily harassing these defendants. Therefore, defendant No.3 has prayed to dismiss the suit and award exemplory costs.
18 O.S.No.1938/2011
9. On the basis of the pleadings the following issues have been framed on 13.2.2012:-
ISSUES
1. Whether plaintiff proves that he is the absolute owner of Site No.69 in the private layout formed in Sy.No.175/4 of Doddanekundi Village, K.R.Puram Hobli, Bangalore?
2. Whether the plaintiff proves that he was in possession of the suit property until the 1st defendant encroached the property and constructed a house?
3. Whether the plaintiff proves that the constructed portion of the suit schedule property is in possession of 2nd defendant?
4. Whether the plaintiff proves cause of action?
5. Whether the principle of res-judicata is attracted?
6. Whether the suit is in time?19 O.S.No.1938/2011
7. Whether the defendants No.1 to 3 prove that the suit property is not in existence and the plaintiff is wrongly claiming site No.10 and 11 formed in Sy.No.176 as his property?
8. What order or decree?
10. In order to substantiate his claim, the plaintiff was examined as P.W.1 and adduced documentary evidence from Ex.P1 to P40. In the meanwhile the defendants No.1 to 3 were got examined as D.Ws.-1 to 3 and adduced documentary evidence from Ex.D1 to Ex.D6, Ex.D7 to Ex.D29 and Ex.D30 to Ex.D61 respectively. It is relevant to note here that at the instance of the plaintiff, the Asst.Revenue Officer, Hoodi and Surveyor, BBMP were got examined as C.W.1 and C.w.2 and got marked the sketch of the schedule property as Ex.C1.
11. I have heard the counsel for both parties and perused the evidence on record.
20 O.S.No.1938/2011
12. My findings on the above said issues are as under:
Issue No.1: In the Affirmative
Issue No.2: In the Affirmative
Issue No.3: In the Affirmative
Issue No.4: In the Affirmative
Issue No.5: In the Negative
Issue No. 6: In the Affirmative
Issue No.7: In the Negative
Issue No.8: As per final order
for the following:-
/REASONS/
13. Issues No.1 to 4 & 7:- Since these issues being interlinked with each other, in order to avoid repetition of discussions, are taken up together for consideration.
14. The plaintiff is relying on his oral evidence coupled with documentary evidence on record in support of his claim in respect of the suit schedule property as against the defendants. P.W.1 has reiterated the averments made in the plaint in the course of his examination-in-chief by way of an affidavit. It is evident from the cross-examination of 21 O.S.No.1938/2011 P.W.1 that the suit site No.69 is in Kalappa layout and bearing HASB khatha No.624/1. P.W.1 does not know who has formed Kalappa layout, but there are 70 sites in that layout formed in Sy.No.175/2, 175/4 and 186/6A. The suit site No.69 is in Sy.No.175/4.. P.W.1 does not know the extent of Sy.No.175/4 but the suit site was sold by Mr.Seetharama Reddy through his power of attorney Mr.Vasudeva through registered Sale Deed in favour of plaintiff as per Ex.P1. It is written in Ex.P1 only khatha number, but not site No.69 formed in Sy.No.175/4. HASB khatha No.624/1 was in the name of plaintiff. Even P.W.1 does not know whether his vendor had no title or khatha in respect of site No.69. The suit site is bounded by East 20 ft. road, West vacant land, North passage and South site No.68. P.W.1 does not know the owners of Sy.No.175, 175/2 and 185/6A except the ownership of Seetharama Reddy for Sy.No.175/4. The HASB 22 O.S.No.1938/2011 has approved the layout for Sy.No.175/4 during 1988. Admittedly, site No.69 is not mentioned in Ex.P3 to Ex.P5 which is a corner site. As per Sale Deed at Ex.P1, there is a road towards East. Whereas Ex.P14 discloses that site No.69 is a corner site. It is an admitted fact that the plaintiff had filed O.S.No.16180/2003 for injunction against the 1st defendant and his vendors which was decreed against him and R.F.A. preferred by him is pending. P.W.1 lodged complaint in Lokayuktha against BBMP officials and report was given as per Ex.P25. The plaintiff has filed the suit after receipt of Ex.P25.
15. It reveals from the further cross-examination of P.W.1 that the measurement of the suit property is 70x30 ft. There was no building at the time of purchasing that site. The khatha of the site was in the name of Mr.Seetharama Reddy and Ex.P39 discloses the name of Mr.Seetharama 23 O.S.No.1938/2011 Reddy as khatedhar and extent of that site is shown as 40x140 ft. P.W.1 has denied that the site described in Sale Deed is no way concerned to Ex.P30. As deposed by P.W.1, site No.361 is pertaining to khatha number in BBMP and site No.624/1 which is pertaining to HASB khatha of his site. The plaintiff has not mentioned the said numbers separately in plaint but he has produced the documents to that effect. Now the defendant No.1 has constructed building on the suit site. P.W.1 does not know defendant No.1 was having two sites measuring 30 x 40 ft. each, but P.W.1 knows defendant No.2 has constructed building on one site measuring 30 x 40 ft. and another site measuring 30x 30 ft. is still vacant. The plaintiff did not make attempt to put up board at the site, but he has filed the suit. P.W.1 enquired about the property of defendant No.1 in BBMP. Now the suit property is in the possession of defendants 2 and 3. The plaintiff 24 O.S.No.1938/2011 could not know about defendant No.3 herein while filing earlier suit O.S.No.16180/2003. The said suit was dismissed and the appeal filed against that decree came to be withdrawn by the plaintiff. It is a fact that site No.69 measuring 70x30 ft. is in Sy.No.175/4, but it is not within the limits of Sy.No.176. P.W.1 is not aware whether site No.10 is in Sy.No.176/A. As per layout at Ex.P14, site No.69 was bounded by roads at two sides, but those roads are being formed by the private owners. The plaintiff has not mentioned Survey Number in schedule annexed to the Sale Deed at Ex.P1 as no Survey Number is in existence. P.W.1 has further admitted that khatha No.624/1 measuring 40x140 ft. is belonging to N.A.Seetharama Reddy as shown in Ex.P39. There is variation in measurement of sites and owners of the said sites. As the concerned persons have got pody subsequent to purchase, the site purchased by plaintiff 25 O.S.No.1938/2011 is measuring 70x30 ft. out of total extent 40x140 ft. in khatha No.624/1.
16. On the other hand, D.W.1 has filed his affidavit in lieu of his examination-in-chief thereby deposed the facts incorporated in his written statement. D.W.1 has admitted in the course of his cross-examination that private layout in respect of the suit property was formed in the year 1988 in Sy.No.175, 175/2, 175/4, 185/6A of Doddenekkundi village. According to D.W.1, the suit site is pertaining to layout formed by his owner. D.W.1 does not know whether site No.69 was under HASB in the year 1988 and HASB was issuing khatha for the revenue site and also collecting property tax till 1996. As admitted by D.W.1, the site area was under the CMC, Mahadevapura. Thereafter it was brought under CMC, Mahadevapura, the khatha was being issued only after collecting Betterment charges from the 26 O.S.No.1938/2011 site owners. The plaintiff herein has filed another suit in O.S.No.16180/2003 against him. D.W.1 has constructed the house in a portion of the suit site. D.W.1 has merely deposed that he has produced the sketch of the layout to show his site No.10 and 11 and no such document/sketch as stated by him is found on record in the suit. The defendant No.1 has not produced khatha or any other documents pertaining to HASB No.176/115 as those documents are in the custody of defendant No.2. The site No.11 is bounded by North: passage-Road. Infact, D.W.1 does not know what was located on the northern boundary of suit site No.69 in the year 1988. Even khatha and khatha extract of site No.10 and 11 are not produced by the defendants. As deposed by D.W.1, his sites No.10 and 11 are situated in land No.76, but he has not produced any records to that effect. D.W.1 does not know the plaintiff personally. 27 O.S.No.1938/2011 Though D.W.1 has denied that the plaintiff, after noticing the temporary shed on the suit site lodged complaint before the jurisdictional police on 26.3.2003, yet admitted that the police called him to police station and enquired with him on the complaint of the plaintiff. Further the police directed to approach the Civil court and then the plaintiff filed O.S.No.16180/2003. D.W.1 has shown his ignorance about the survey report exhibited by the plaintiff as Ex.P36. According to D.W.1, site No.69 is no way concerned to defendants and he does not know whether site No.69 is situated in Sy.No.175/4, but not Sy.No.176. The plaintiff might have purchased site No.69 under registered Sale Deed at Ex.P1. Even though the D.W.1 has shown his ignorance about the fact that HASB issued khatha number in the name of vendor of the plaintiff in respect of site No.69 and HASBV bifurcated the khatha No. as 624/1B as per 28 O.S.No.1938/2011 Ex.P2(a), D.W.1 has denied that the defendants are trespassers to the suit property and they are liable to hand over the possession of the suit property to the plaintiff by demolishing the building constructed during the pendency of the suit in O.S.No.16180/2003.
17. D.Ws.2 and 3 have deposed in support of defendant No.1 by filing their affidavits in lieu of their examination-in-chief. It is elicited from the cross- examination of D.W.2 that in the month of December 2005, when he saw the building it was completely constructed but he does not know when the construction of that building was commenced by his vendor. He has not obtained legal opinion in respect of the building, but he enquired with the bank in that regard. D.W.2 is aware of the fact that the khatha will be jointly issued to the revenue site by concerned Village Panchayath/ CMC/BBMP. D.W.2 being owner is custodian of 29 O.S.No.1938/2011 all the revenue documents produced by him. D.W.2 also knew that the surveyor of BBMP visited the suit property and submitted his report with sketch in the year 2009. D.W.1 has given go bye to his own examination-in-chief in para-5 and 6 of his affidavit. D.W.2 cannot say from which office he obtained Ex.D16 to Ex.D29, but he has produced revenue records to show that site No.11 purchased by defendant No.1 is in Sy.No.176. According to D.W.2, the site No.11 is in Sy.No.176/A. D.W.2 has neither admitted nor denied material fact that the house which is in his occupation forms part of site No.69 in Sy.No.175/4 purchased by the plaintiff under Sale Deed dated.27.10.1989. D.W.2 does not know plaint and evidence adduced by the plaintiff in this suit. Even then, it is denied that plaintiff is the owner of portion of the suit property on which building is constructed by the defendant No.1.
30 O.S.No.1938/2011
18. It has come from the mouth of D.W.3 in the course of his examination-in-chief that he is working in HAL from last 17 years and knows that the schedule property is situated in big layout, but he does not know whether the suit layout was coming within the limits of HAL Sanitary Board till 1997. He has not seen the layout plan in respect of alleged site purchased by him. Even D.W.3 has not verified the khatha in respect of site purchased by his vendor as per Ex.D33. According to D.W.3, site No.11 is bounded by road towards East and North, CMC would issue khatha only after collecting betterment charges. D.W.3 has not produced any records pertaining to the suit property issued by BBMP. It is a fact that rear portion of schedule property is still vacant. D.W.1 knew about the earlier suit filed by the plaintiff against the 1st defendant i.e., his vendor. The suit property is within the local limits of BBMP since 2007. D.W.3 did not 31 O.S.No.1938/2011 know about dispute between the plaintiff and defendant till 2007 and he has not obtained any survey report from the concerned Surveyor to show that site No.10 is part of Sy.No.176. Infact, D.W.3 does not know whether the suit schedule property is formed in Sy.No.175/4 and plaintiff purchased the suit schedule property under Ex.P1. However D.W.3 has denied that defendants 1 to 3 have no right over the suit schedule property and the construction put up by 2nd defendant is illegal and both the defendants 2 and 3 are liable to handover possession of the schedule property to the plaintiff.
19. It is evident from the further cross-examination of D.W.3 that, admittedly he has purchased site from defendant No.1 through Sale Deed at Ex.D30. Accordingly that property was purchased by his vendor under the Sale Deed dated.31.7.1999. Subsequently his vendor handed over 32 O.S.No.1938/2011 the original Sale Deed dated.31.7.1999 to him which is under his custody. Infact, the said Sale Deed is produced from the custody of defendant No.1 and got marked as Ex.D3. D.W.3 cannot say the location of site in Kalappa layout.
20. It is proved from the documentary evidence on record that the plaintiff has purchased the suit schedule site No.69 in HASB khatha No.624/1 situated in Doddanekkundi village, HASB area, K.R.Puram hobli, Bengaluru South Taluk measuring East to West:70 ft. and North to South: 30 ft. Within the following boundaries:
East by: Road West by: Private property North by: Private property South by: Site No.68 through registered Sale Deed dated.27.10.1989 at Ex.P1 from previous owner N.A.Seetharama Reddy s/o. Appanna Reddy through his General Power of Attorney holder by name 33 O.S.No.1938/2011 Vasudeava s/o. Krishnappa. This Sale Deed does not disclose Survey Number 175/4 as pointed out by the counsel for the defendants.
21. HAL Sanitary Board, Bengaluru issued an endorsement on the application of plaintiff dated.2.12.1981 on 4.12.1991 for having bifurcated khatha No.624/1 as 624/1B in respect of site measuring 70x30 ft. as claimed by the plaintiff as per Ex.P2. Ex.P3 Assessment list for building and lands liable to taxation for the year 1988-89 discloses that the property khatha No.624/1B measuring 70x30 was under the ownership of plaintiff. Ex.P4 to Ex.P6 and Ex.P9 to Ex.P11 tax paid receipts go to show that it is the plaintiff who has been paying the property tax to the concerned authorities for the period from 1993 to 2003 in respect of khatha No.624/1B earlier to HASB and subsequently to the CMC, Mahadevapura. The Occupants khatha extract was also 34 O.S.No.1938/2011 issued in respect of site No.69 in Sy.No.175/4 in favour of the plaintiff during the year 2000 as pre Ex.P7. CMC, Mahadevapura also issued khatha endorsement on 15.9.2000 as per Ex.P8 in respect of site No.69 in Sy.No.175/4 as per Ex.P8. The Encumbrance Certificate at Ex.P12 and Ex.P13 reflect the sale transaction at Ex.P1 in respect of site No.69, khatha No.614/1, measuring 70x30 ft. including 1 Square house as mentioned therein as on 8.1.1998. Ex.P14 the proposed layout plan in Sy.Nos.175,175/2, 175/4 and 185/6A of Doddanekkundi village, HAL Sanitary Board area, Bengaluru at Ex.P14 discloses the location of the site. Accordingly site No.69 is bounded by East and North: Road, West: Private property and South site No.68. This sketch does not disclose either Sy.No.176 or 176-A to know the location of alleged site Nos.10 and 11 as claimed by the defendants instead of suit site No.69 as claimed by the 35 O.S.No.1938/2011 plaintiff herein. As reflected in the layout plan, site No.69 is a corner site having roads towards North and East. As deposed by P.W.1, the passage/road towards North is a private passage, but no road is approved by the concerned authority. The Record of Rights at Ex.P15 and Ex.P16 disclose that the land Sy.No.175/4 an agricultural land bearing Sy.No.175/4 measuring 0.28 Guntas was under the ownership of said N.A.Seetharama Reddy s/o. Appanna Reddy from 1998-99 and 1999-2000. The name of the alleged vendor of the 1st defendant N.A.Ramakrishna Reddy is not found in the said Record of Rights. Looking to the initial of both Seetharama Reddy and Ramakrishna Reddy, they may be full brothers. The plaintiff has produced the sanctioned plan at Ex.P17.
22. Infact, the plaintiff had applied for permission for construction of building on the suit site No.69 in 36 O.S.No.1938/2011 Sy.No.175/4 on 16.4.2003 and also paid requisite fee for sanctioned plan, as per Ex.P18 and Ex.P19 respectively. Besides, the plaintiff has got sanctioned the loan for construction of house from ICICI Home Finance on 28.5.2003 as per Ex.P20. The police Sub-Inspector HAL police station in response to complaint of plaintiff issued an endorsement as per Ex.P21 as the dispute between the parties is of Civil in nature.
23. The plaintiff has also sought for furnishing information under Right to Information Act 2005 by filing an application dated.13.10.2006 to the Municipal Commissioner, CMC, Mahadevapura, Bengaluru -48 and the said Municipal Commissioner issued an endorsement informing the plaintiff about the non-availability of records of HASB khatha No.176/A, plan approval and CMC khatha No.275 pertaining 37 O.S.No.1938/2011 to the alleged sites of defendants as it is evident form Ex.P22 dated.9.11.2006. Though Ex.P22 endorsement discloses that khatha No.176-A and 275 are not available in CMC, Mahadevapura, Bengaluru, yet the Property Tax Register Extract at Ex.P23 which was said to have been issued by the Commissioner, CMC, Mahadevapura in respect of khatha No.275. Accordingly, khatha in the name of 1st defendant was got changed in the name of the 2nd defendant in the year 2006. The property extract at Ex.P24 for the year 2007-08 discloses that the plaintiff was the owner of property bearing old khatha No.361 site No.69, Sy.No. 175/4 measuring 70x30 ft. as certified by the ARO, BBMP, Mahadevapura Range. Ex.P26- Record of Rights of land Sy.No.175/4 was under the ownership of N.A.Seetharama Reddy during the year 2011-12 as asserted by the plaintiff herein. The Deputy Registrar, Karnataka Lokayuktha, issued 38 O.S.No.1938/2011 an endorsement dated.1.9.2007 to the plaintiff stating that his complaint was closed as per Final Scrutiny Note. The certified copy of Accordingly, the complaint of the plaintiff being civil dispute, he has to file suit for possession. Infact, the complainant already filed suit against his opponents pending before the Civil court in O.S.No.16180/2003 and directed the complainant/plaintiff to approach Civil Court. Judgment in O.S.No.16180/2003 dated.3.12.2009 discloses that the plaintiff was filed the said suit against defendant No.1, the General Power of Attorney holder and owner of the suit site for mandatory injunction. After the trial, the court came to the conclusion that the defendant was already in possession of the suit schedule property much earlier to the suit when admittedly the plaintiff was not in possession of the suit schedule property at the time of filing the suit for mandatory injunction without seeking 39 O.S.No.1938/2011 the relief of title and possession is not maintainable and thereby dismissed the suit of the plaintiff with costs. The photographs at Ex.P29 to Ex.P34 with C.D. disclose the topographical situation of the schedule property as pleaded by plaintiff in the suit. Ex.P36 an endorsement dated.19.11.2009 issued by the Asst. Revenue Officer, Hoodi Sub-Range, BBMP Bengaluru in response to the application of plaintiff dated.27.10.2009 under Right to Information Act 2005 denotes that, as per the annexed survey sketch, the 2nd defendant has constructed the house in an area measuring 30x39 ft. on the eastern portion of suit site No.69 and western portion measuring 30x31 ft. is still vacant. It is also made it clear from the said sketch that site No.69 khatha No.624/1 is under the ownership of plaintiff. The said survey was conducted as per order RO/PR/1167/2008-09. As per the said sketch, site 40 O.S.No.1938/2011 Nos.10 and 11 as claimed by the defendants are no way concerned to the suit site No.69 acquired by the plaintiff.
24. The Asst.Revenue Officer, BBMP, Hoodi Range, Bengaluru issued Assessment list of building and lands liable to taxation pertaining to site No.69, HASB, khatha No.624/1, Kalappa layout, Doddanekkundi. Accordingly, the said property No.624/1 totally measuring 40x140 ft. is in the occupation of the vendor of the plaintiff as per Ex.P38 and Ex.P39. As noted supra, the Chief Officer, HASB, Bengaluru had bifurcated the said khatha No.624/1 totally measuring 40x140 ft. and the site belonging to the plaintiff in that khatha No.624/1B is shown as measuring 30x70 ft. as on 5.12.1991 as per Ex.P2. As pleaded by defendants, the property belonging to the vendor of the plaintiff and the vendor of the 1st defendant are totally different. 41 O.S.No.1938/2011
25. On the other hand, defendant No.1 is relying on the absolute Sale Deed dated.1.6.1999 executed by N.A.Ramakrishna Reddy in his favour, thereby sold the residential house site No.10, HASB, khatha No.176/115, measuring East to West: 29+27/2 and North to South: 30 ft. bounded by:
East : House site No.11 West: Private property North by: 22ft. road South by: Private property Which consists of 1 Sq. A.C. sheet roofed, mud walls, mud flooring, jungle wood doors house without amenities?
Whereas, Encumbrance Certificate at Ex.D2 is pertaining to site No.11, HASB khatha No.176/A, property No.176/5, measuring 40x30 ft. bounded by East: 20 ft. Road, West:
site No.10, North Passage, South: Seetharamareddy's property. Ex.D3 is the proposed building construction plan in 42 O.S.No.1938/2011 site No.11, khatha No.176/A obtained by the 1st defendant.
Ex.D4 the certified copy of order sheet in PCR.no.1/2006 discloses that the plaintiff herein filed that private complaint against defendants 1 and 3 for the offences punishable U/Ss.441, 447,420 and 506 of IPC on 2.01.2006.
The Learned C.M.M., Bengaluru took the cognizance of the offences U/s. 506 r/w. Sec.114 of IPC against accused No.1 by order dated.3.9.2007 i.e., the 1st defendant and that complaint against the accused No.2 i.e., defendant No.3 was dismissed. The said private complaint was pending till 30.5.2009. The sworn statement of the complainant/plaintiff was recorded in the said private complaint at Ex.D5. The said complaint was filed during the pendency of earlier suit O.S.No.16180/2003.
26. Ex.D7 the certified copy of the absolute Sale Deed dated.20.3.1998 discloses that the 1st defendant has 43 O.S.No.1938/2011 purchased the site No.11, HASB No.176/A measuring East to West: 40 ft. and North to South: 30 ft. and bounded thereon:
East : 11 ft. road, West: Site No.10 North by: passage South by: Seetharam Reddy's property Consists of 1 Square A.C.C. sheet roofed house without having civil amenities prior to purchasing the site No.10 from the said N.A.Ramakrishna Reddy.
27. The defendant No.2 has been relying on some documents. Ex.D8 is a letter submitted by the 2nd defendant to the ICICI Bank Ltd., regarding LAN No.LBPDY00001517733 LBVLR00001233868 for confirming the documents as listed therein in their custody. The defendant No.2 has paid the property tax in respect of property No.1308/11 to the CMC, Mahadevapura for the year 44 O.S.No.1938/2011 2010-11 to 2012-13 as per Ex.D9 to Ex.D12. The Encumbrance Certificates at Ex.D13 to Ex.D15 disclose the sale transaction in respect of site No.11 between N.A.Ramakrishna Reddy and 1st defendant as well as the 1st defendant and 2nd defendant as described in the said Sale Deed. The Record of Rights at Ex.D16 to Ex.D29 disclose that Sy.No.176 measuring 24 Guntas was earlier under the ownership of Vimalamma Bin Srinivasa Reddy during the period from 1967-68 to 1981-82 as per Ex.D16 and Ex.D17. Subsequently, N.A.Seetharama Reddy and N.A.Ramakrishna Reddy jointly succeeded to the said Sy.No.176 and they were owners and in possession of the said Survey Number during the period from 1982-83 to 1993-94 as per Ex.D18 and Ex.D19. Thereafter Ramakrishna Reddy and Vijayakumar s/o. Seetharama Reddy are shown as owners and personal 45 O.S.No.1938/2011 cultivators of the said Survey Number during the period from 1994-95 to 2011-12 as per Ex.D20 to Ex.D29.
28. Defendant No.3 has produced the absolute Sale Deed dated.25.2.2002 and Rectification Deed dated.19.11.2004 at Ex.D30 and Ex.D31 thereby defendant No.3 is said to have purchased site No.10, khatha No.176/115, CMC No.274, khatha endorsement No.643/1999- 2000 dated.28.2.2000 situated at Doddanekkundi village, measuring East to West: 29+27/2, North to South: 30 ft. within the following boundaries:-
East: Site No.11 West: Private property North by: 22ft. wide road South by: Private property, from the 1st defendant. The said transaction between the defendants 1 and 3 in respect of site No.10 has been reflected in Encumbrance Certificate at Ex.D32 and Ex.D33.46 O.S.No.1938/2011
The defendant No.3 was said to have paid property tax earlier to Municipal Council, Mahadevapura, as per Ex.D34 to Ex.D41 and subsequently paid the property tax to BBMP upto 2012 as per tax paid receipts at Ex.D42 to Ex.D44 and Ex.D57 to Ex.D60 upto 2010-11.
29. The Mutation register at Ex.D45 discloses that the land Tribunal granted Occupancy right in respect of Sy.No.176 measuring 24 Guntas in favour of the said vendor of the 1st defendant. Ex.D46 is the Record of Rights of land Sy.No.176 under the joint ownership of N.A.Ramakrishna Reddy and Vijay Kumar s/o. Seetharama Reddy. Accordingly the vendor of the 1st defendant was not the absolute owner of the entire land Sy.No.176 during the year 2004-05. CMC, Mahadevapura issued khatha in respect of site No.10 in Sy.No.176 in favour of the 1st defendant as per Ex.D47 and 47 O.S.No.1938/2011 Ex.D48. In pursuance to the Sale Deed the name of the 3rd defendant came to be entered in Property Tax Register at Ex.D49 in respect of khatha No.274, site No.10 in Sy.No.176. The 1st defendant paid the tax to the CMC earlier in respect of site No.10 as per Ex.P51 to Ex.P53. The BBMP also issued khatha certificate in favour of 3rd defendant in the year 2011-12 in respect of property No.274/10 as per Ex.D55.
30. As noted supra, the plaintiff got examined C.W.1 and 2 to prove sketch marked as Ex.P36. C.W.1 has produced the survey sketch from his office at Ex.C1 and its true copy is got marked by the plaintiff as Ex.P36. As deposed by C.W.1, Ex.C1 is prepared by Surveyor after spot inspection. C.W.1 after comparing Ex.C1 with Ex.P36 has clarified that both are similar in nature. C.W.1 does not know how the seal of Mahadevapura Valaya and the date of ARO signature are appearing in Ex.P36 against Ex.C1. As admitted by C.W.1 that 48 O.S.No.1938/2011 in case of any dispute regarding land, Surveyor of BBMP will conduct the survey. The Revenue records are maintained in respect of site No.69, khatha No.624/1 since 5.12.1991. It is also evident from the cross-examination of C.W.1 that admittedly khatha in respect of site No.69 has been bifurcated and khatha No.624/1B has been allotted to plaintiff and the site No.69 is belonging to plaintiff and the defendant No.2 has constructed house in a portion of site No.69 as shown in Ex.C1.
31. On the other hand, C.W.2 - the Surveyor BBMP has deposed that he had prepared the sketch of the site No.69, khatha No.624/1 as shown by concerned party and prepared the sketch marked as Ex.P36. Admittedly ARO put his signature on 11.09.2011 and then C.W.2 signed Ex.C1 on 17.6.2009. C.W.2 has also denied that Ex.P36 issued by ARO 49 O.S.No.1938/2011 and Ex.C1 produced by ARO are not similar. C.W.2 has made it clear that there is variation in the date and the signature of ARO in both the documents and there is no seal on Ex.C1. Whereas, Ex.P36 bears the seal. C.W.2 had not verified the documents pertaining to the property of defendant No.2 - Balasubramanya. According to C.W.2 there is no such mandatory provision regarding service of notice and drawing of mahazar as suggestion to him by the counsel for the defendant. C.W.2 has verified only layout plan while preparing the sketch and that layout plan is marked as Ex.D61. The measurement of site No.69 is not mentioned in Ex.P61, but C.W.2 has mentioned the measurement of building and open site separately in Ex.C1. Accordingly the building is measuring East to West:39 ft. and North to South: 30ft. and open site is measuring East to West:31 ft. and North to South:30 ft. Nothing worth has been 50 O.S.No.1938/2011 suggested by the counsel for the defendants in the course of cross-examination of either C.W.1 or C.W.2 so far as the site No.10 and 11 in Sy.No.176 as claimed by the defendants so as to take into consideration. Ex.D61 as deposed by C.W.2 is nothing but Ex.P14 as discussed supra. Ex.D61 is pertaining to only Sy.Nos.161, 175, 175/2, 175/4 and 185/6A of Doddenekkundi village. As such, the suit site No.69 situated in Sy.No.175/4 is no way concerned to the site No.10 and 11 alleged to have been formed in Sy.No.176 as claimed by the defendants.
32. On analysing the evidence on record, it is proved that the said N.A.Seetharama Reddy being owner of land Sy.No.175/4 and other lands had formed layout in the year 1988. The site bearing khatha No.624/1 totally measuring 30x140 ft. was bifurcated by HASB and the khatha No.624/1B was given to site No.69 as described in the suit 51 O.S.No.1938/2011 schedule as per Ex.P3. Meanwhile, the plaintiff purchased the suit site through registered Sale Deed dated.27.10.1989 at Ex.P1 executed by General Power of Attorney holder of the said owner N.A.Seetharama Reddy. In pursuance to the Sale Deed, the HASB transferred the khatha in respect of the suit site in the name of plaintiff and also issued khatha extract. The plaintiff has been paying the property tax from time to time to the concerned local bodies. As per the Sale Deed, the suit site is bounded by East: road, West and North: Private property and South by site No.68. The layout plan at Ex.P14 discloses that site No.69 measuring 30x70 ft. is bounded by East and North: road, West: Private property and South by site No.68. Whereas, the survey sketch prepared by C.W.2 as per order passed by the concerned authority at Ex.C1 discloses actual topographical situation and the location of the suit site. It is proved from the oral 52 O.S.No.1938/2011 evidence coupled with public record that the 2nd defendant is in possession of constructed house in an area measuring 30x39 ft. i.e., the eastern portion and northern portion measuring 30x31 ft. in site No.69 is kept vacant. The defendants 2 and 3 are claiming the said Eastern and Western portions as the site Nos.11 and 10 in Sy.No.176 as purchased by defendant No.1 from the alleged owner by name N.A.Ramakrishna Reddy through Sale Deeds dated.20.03.1998 and 01.06.1999. The measurement as well as boundaries of the alleged site Nos.10 and 11 are not tallying with the suit schedule site No.69. According to defendant No.1, he had purchased the site No.10 and 11 through separate Sale Deeds and sold site No.11 and 10 to the defendants 2 and 3 respectively. On taking into consideration the boundaries of the site No.10 and 11 as well as boundary of Sy.No.69, it appears that the defendants are 53 O.S.No.1938/2011 claiming site No.69 which is under the ownership of plaintiff in Sy.No.175/4. The Sale Deed at Ex.P37 executed in favour of 1st defendant discloses that the site No.11 is bounded by East: road, West: passage but not road as reflected in layout plan at Ex.P14. This fact itself supports the claim of the plaintiff that the suit site No.69 is bounded by road towards East and private passage towards North. As shown in Ex.P14, the northern boundaries of site No.10 and 11 are inconsistent to the site No.69 as claimed by the plaintiff.
33. Infact, the plaintiff has purchased the suit site No.69 after bifurcation of khatha No.624/1 in the month of October 1989. Whereas, the 1st defendant was said to have purchased the site No.11 and 10 in the month of March 1998 and June 1999 respectively. Defendant No.2 has not produced the Sale Deed dated.10.2.2006 as reflected in Encumbrance Certificate-Ex.D14 to know the actual property 54 O.S.No.1938/2011 in site No.11 purchased by him from defendant No.1. AS per the Sale Deed at Ex.D30, the defendant No.3 purchased site No.10 bounded by West to site No.11. This Sale Deed does not disclose the name of either defendant No.1 or defendant No.2 as the owners of eastern site No.11 as mentioned in the schedule of the Sale Deed.
34. It is proved from the endorsement at Ex.P22 issued by City Municipal Council, Mahadevapura, Bengaluru that the alleged property tax register extract at Ex.P23 and Ex.P24 were not at all available in the office of the Commissioner, CMC, Mahadevapura. None of the defendants has made attempt to prove Ex.P23 and Ex.P24. When the khatha No.176-A, plan approval and CMC khatha No.275 as claimed by the defendants are not at all available in the office of CMC, Mahadevapura, then the possibility of defendants concocting those Municipal records just to suit 55 O.S.No.1938/2011 their purpose cannot be ruled out. The plaintiff has obtained the relevant revenue records pertaining to site No.69, khatha No.164/1 from the competent authority. The sketch prepared by C.W.2 produced form the custody of C.W.1 corroborate the claim of the plaintiff made in respect of site No.69. The documentary evidence adduced by the plaintiff has falsified the baseless defence so set up by the defendants as against the plaintiff in respect of suit schedule site No.69. The endorsement issued by the Commissioner, CMC, Mahadevapura on the application of the plaintiff regarding disputed site No.10 and 11 itself go to show that the revenue records including the tax paid receipts being unauthenticated, are not at all reliable. Moreover, the revenue records themselves are not the documents either to create or extinguish title in respect of site No.10 and 11. It is also proved from the oral evidence 56 O.S.No.1938/2011 coupled with relevant documentary evidence on record that, the construction made on the eastern portion of site No.69 by the 1st defendant is not only unauthorised, but also illegal. It is a fact that the vendor of the plaintiff was the exclusive owner of Sy.No.175/4. The land Sy.No.176 was owned by not only the alleged vendor of defendant No.1, but also the vendor of the plaintiff. When the defendants have been asserting their right over the specific sites through Sale Deeds and then the defendants were also expected to have produced layout plan and other relevant records to show that the vendor of the 1st defendant was the owner of both sites as described in the Sale Deeds. Except the Sale Deeds nothing is placed on record to show that site No.69 as claimed by the plaintiff is the area consisting of site Nos.10 and 11 as claimed by the defendants. I do not find any truth or trustworthiness in the bald oral evidence of D.W.1 to 3. 57 O.S.No.1938/2011 On the other hand, it is proved from the preponderance of evidence with all probabilities that the plaintiff is the absolute owner of site No.69 in the private layout formed in Sy.No.175/4 of Doddenekkundi of K.R.Puram Hobli, Bengaluru South Taluk. The plaintiff was in possession of suit property from 27.10.1989 till March 2003. Infact, the plaintiff was prepared to construct residential house for his own use and obtained construction permission and sanctioned plan and also got sanctioned loan from ICICI Home Finance as per Ex.P18 to Ex.P20 respectively at the beginning of the year 2003. The plaintiff immediately after coming to know about the temporary shed put up by the 1st defendant highhandedly had filed O.S.No.16180/2003 against not only the 1st defendant, but also his vendor on 12.9.2003. As per Ex.P27- the certified copy of Judgment, the said suit came to be dismissed on technical grounds that the defendant was not in 58 O.S.No.1938/2011 possession of the suit property as on the date of the suit so as to grant relief of injunction as sought against the defendants. It is also on record that the plaintiff withdrew the R.F.A.No.296/2010 on 9.10.2012 during the pendency of the instant suit. It is also relevant to note here that the plaintiff during the pendency of earlier suit O.S.No.16180/2003 had filed private complaint against defendants 2 and 3 as they trespassed into the suit schedule property and committed other offences as alleged in that complaint. The cognizance of the offences U/s. 506 r/w. Sec.114 of IPC was taken against defendant No.1. Under those circumstances, the plaintiff was forced to file the instant suit for appropriate relief of possession and mandatory injunction against the defendants on 14.3.2011. It is proved from the Sale Deeds executed among the defendants that, when the 1st defendant purchased the 59 O.S.No.1938/2011 alleged site No.11 on 20.3.1998 and the 10 Square of RCC house with all civic amenities therein in favour of 2nd defendant through Sale Deed on 10.2.2006, then the house now in the occupation of the 2nd defendant as claimed by the plaintiff must have been constructed prior to February 2006. It is also proved from Ex.C1/Ex.P36 sketch that the alleged vacant site No.10 is nothing but eastern portion of suit site No.69. Hence without much discussion, I hold that the plaintiff was in possession of the suit property until the 1st defendant encroached the property and constructed the house which has been sold to 2nd defendant. It is an admitted fact that the defendant No.2 is in possession of the constructed portion of the suit schedule property. In the absence of authenticated evidence, the baseless and bald defence of defendants in respect of suit site No.69 based on the alleged non-existence site No.10 and 11 alleged to have 60 O.S.No.1938/2011 been formed in Sy.No.176 by the vendor of the 1st defendant cannot be believed. It is proved from the evidence on record adduced by both the parties that, the suit property No.69 is existing and the plaintiff is the owner of the suit site, but the defendants are wrongly claiming site No.10 and 11 formed in Sy.No.176 as the suit property bearing site No.69 as belonging to them.
35. It is pertinent to note here that each and every facts pleaded by the plaintiff gives the plaintiff a right to seek relief as sought against the defendants in respect of the suit schedule property. It is settled principle of law that cause of action as understood in the Civil proceedings means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to adjudication of the court. To put in a 61 O.S.No.1938/2011 different way, it is a bundle of facts which taken with law applicable to them, gives the plaintiff right to relief against the defendant. Looking from any angle, the defendants cannot plead that there is no cause of action to the plaintiff to file the instant suit against them. Hence I answer Issue Nos. 1 to 4 in the Affirmative and Issue No.7 in the Negative.
36. Issue No.5:- The defendants 1 and 2 have taken up a contentions that in view of dismissal of earlier suit O.S.No.16180/2003 in respect of the suit schedule property, the present suit is hit by principles of res-judicata and on this count alone, the suit of the plaintiff is liable to be dismissed. Whereas, as noted supra, the earlier O.S.No.16180/2003 was filed by the plaintiff in respect of the same subject-matter for relief of mandatory injunction 62 O.S.No.1938/2011 wherein the plaintiff was pleaded that he is the owner of the suit schedule property from the date of purchase and obtained sanctioned plan to put up construction and also started construction on 26.03.2003. On that date, he found some stranger had constructed temporary shed, later he learnt that temporary shed was constructed by the defendants without having any right. Hence, he filed the said suit for mandatory injunction for dismantling the said construction over the suit property. The 1st defendant has contested the suit as he acquired site Nos.10 and 11 bearing khatha No.176-A formed in Sy.No.176 in the year 1998 and sold site No.10 in favour of defendant No.3 herein and after obtaining license, constructed the house in site No.11 and also sold the same on 8.2.2006 in favour of 2nd defendant herein and his vendees are in possession of the same. Based on the issues framed in that suit, in view of the fact that the 63 O.S.No.1938/2011 defendant was already in possession of the suit schedule property prior to suit for mandatory injunction without seeking relief of title and possession is not maintainable and dismissed. As noted supra, the R.F.A.No.269/2010 preferred before the Hon'ble High Court of Karnataka came to be withdrawn by the plaintiff herein for the reasons best known to him. On verifying the issues formulated in the said suit for mandatory injunction and the issues framed in the instant comprehensive suit for possession based on previous possession, in pursuance to title of the plaintiff, as well as parties to the suit, it can be safely held that in the absence of pleadings of both the parties in the earlier suit, the principles of res-judicata as contemplated U/s.11 of CPC would not attract. Moreover, the matter directly and substantially in issue in the earlier suit for mandatory injunction has not been directly and substantially in issue in 64 O.S.No.1938/2011 the instant suit. Besides, the parties to the suit are also different in the instant case. The plaintiff has admitted that the defendants dispossessed him from the schedule property during the year 2003 and made structure over the suit property without having any sort of right thereby deprived the plaintiff of his possession and enjoyment over the suit schedule property. Looking to the facts and circumstances of the case, question of res-judicata as pleaded by the defendants does not arise at all. Hence I answer Issue No.5 in the Negative.
37. Issue No.6:- The plaintiff has pleaded that the cause of action for the suit arose on 27.10.1989 when the plaintiff acquired the possession and title of the suit schedule premises and subsequently in the month of March 2003 when the defendant trespassed into the schedule 65 O.S.No.1938/2011 premises by illegally dispossessing plaintiff from his settled possession and inducted defendants 2 and 3 into the suit schedule premises. According to plaintiff, he was dispossessed by the defendants in the month of March 2003, immediately he filed O.S.No.16180/2003 on 12.09.2003 which came to be dismissed on 3.12.2009 and then he preferred R.F.A.No.269/2010 subsequently filed the instant suit based on his title for possession and mandatory injunction against the defendants on 14.3.2011 within eight years form the date of dispossession. The defendants have merely pleaded that the suit of the plaintiff is barred by limitation.
38. The counsel for the plaintiff has placed his reliance on a decision reported in AIR 1995 SC 895 in Annasaheb Bapusaheb Patil and Others Vs. Balwant Alias 66 O.S.No.1938/2011 Balasaheb Babusaheb Patil (dead) by L.Rs.& heirs etc., the Hon'ble Supreme Court of India has held that:
"Article 65 of the schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e., a possession which is expressly or impliedly in denial of title of the true owner. Under Art.65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e., possession as hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e., possession was hostile to the real owner and amounted to a 67 O.S.No.1938/2011 denial of his title to the property claimed."
39. It is settled principle of law that if in a suit falling under Art.65, the defendant wants to defeat the rights of the plaintiff, he has to establish his adverse possession for 12 years, if he fails to do so then the plaintiff cannot be non-suited merely because he is unable to prove possession within 12 years. Where the plaintiff sues for possession on the basis of title and establishes title, onus is on the defendant to prove that his possession was adverse. An alienee of a void sale acquires no title to the property conveyed in his favour and his possession is, therefore, wrongful from the very inception and the cause of action for filing the suit would arise form the date of taking possession by him. Therefore, a person who enters into possession on the basis of an invalid sale he acquires no title to the 68 O.S.No.1938/2011 property by such sale transaction but his possession becomes wrongful from the very inception. As discussed supra, when plaintiff has successfully proved his claim over the suit schedule property through documentary evidence and then his onus shifts on the defendants to prove the very existence of alleged site No.10 and 11 in the suit schedule property and site No.69 as claimed by the plaintiff is belonging to them. The defendants have failed to prove the very existence of the alleged sites purchased by them from the erstwhile owner through cogent evidence. Looking to the attitude of the defendants towards the subject matter of the suit based on the alleged Sale Deeds, when the defendants have failed to prove their title over the alleged sites and possession of the defendants 2 and 3 over the suit schedule site belonging to the plaintiff has become wrongful. Looking to the nature of the reliefs claimed with regard to 69 O.S.No.1938/2011 the subject-matter of the suit against the defendants, the suit of the plaintiff is well within the stipulated period of limitation as contemplated under Article 65 of the Limitation Act. Hence I answer Issue No.6 in the Affirmative.
40.Issue No.8:- In view of my findings on the issues No.1 to 7 and the reasons stated therein, in the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is decreed with costs as under:-
The plaintiff is entitled to recover possession of the suit schedule property from the defendants. Consequently, the defendants are directed by mandatory injunction to remove the structures put up in the suit schedule premises and handover vacant possession of the suit schedule premises to the plaintiff within sixty days from the date of this order.70 O.S.No.1938/2011
In case of default, the plaintiff shall remove the structures put up in the suit schedule premises and to recover the vacant possession in accordance with law.
Draw up a decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 12th day of August 2015.) (BHAIRAPPA SHIVALING NAIK) XII Addl. City Civil & Sessions Judge, Bangalore A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff' side :
P.W.1: K.Vijayakumar
(b) Defendant's side :
D.W.1: Sri.Rangaswamy
D.W.2: Sri.Balasubramaniyam.M.
D.W.3: Sri.Suresh
71 O.S.No.1938/2011
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Certified copy of sale deed
dt.27.10.1989 along with certified
copy of typed copy
Ex.P2: Certified copy of endorsement
issued by H.A.Sanitary Board,
Bangalore, dt.5.12.1991
Ex.P3: Certified copy of Tax assessment
register for 1988-89
Ex.P4: Certified copy of Tax paid receipt
Ex.P5: Certified copy of Tax paid receipt
Ex.P6: Certified copy of Betterment
charges receipt
Ex.P7: Certified copy of Khatha extract
Ex.P8: Certified copy of Khatha
endorsement
Ex.P9: Certified copy of Tax paid receipt
Ex.P10: Certified copy of Tax paid receipt
Ex.P11: Certified copy of Tax paid receipt
Ex.P12: Encumbrance certificate
Ex.P13: Encumbrance certificate
Ex.P14: Certified copy of Layout plan
Ex.P15: Certified copy of RTC
Ex.P16: Certified copy of RTC
Ex.P17: Certified copy of Plan
Ex.P18: Certified copy of Construction
permission
Ex.P19: Certified copy of receipt
Ex.P20: ICICI Bank loan approval
Ex.P21: Certified copy of endorsement
issued by HAL Police Station
72 O.S.No.1938/2011
Ex.P22: Endorsement issued by CMC
Mahadevapura
Ex.P23: Tax payment register extract
Ex.P24: Tax payment register extract
Ex.P25: Endorsement issued by Lokayuktha Ex.P26: RTC of Sy.No.175/4 Ex.P27: Certified copy of Judgment in O.S.No.1618/2003 Ex.P28 CD containing photographs, to 36: Certified copy of decree in OS.No.1618/2003 and Endorsement issued by BBMP along with sketch Ex.P37: Certified copy of judgment in R.F.A.No.296/2010 Ex.P38: Endorsement dt.20.12.2001 issued by BBMP Ex.P39: Certified copy of assessment list of buildings and lands liable to taxation Ex.P40: Certified copy of petition
(b) For defendant's side:-
Ex.D1: Registered sale deed dt.17.12.1999 Ex.D2: Encumbrance certificate Ex.D3: Sanction plan.
Ex.D4: Certified copy of entire order sheet in PCR No.1/06 Ex.D5: Certified copy of complaint in PCR No.1/06.
Ex.D6: Copy of final scrutiny note obtained
in RTI from Lokayuktha Office
73 O.S.No.1938/2011
with Reply dt.18.06.2007
Ex.D7: Registered sale deed bearing
documents No.12007/1997-98
dt.20.03.98.
Ex.D8: Letter issued by ICICI bank.
Ex.D9: Letter dt.03.05.2008.
Ex.D10: Tax paid receipt.
Ex.D11: Tax paid receipt for the year 2011-
12.
Ex.D12: Tax paid receipt for the year 2012.13.
Ex.D13: Encumbrance certificate from
24.07.93 to 31.03.2004.
Ex.D14: Encumbrance certificate from
01.04.2004 to 18.10.2008.
Ex.D15: Encumbrance certificate from
01.04.2004 to 15.01.2013
Ex.D16 Five RTCs' from 1967-68 to 1999-
to 20: 2000.
Ex.D21 Nine RTCs' in respect of Sy.No.176
to 29: from 2005-06 to 2012-13.
Ex.D30: Original absolute Sale deed
dt.25.02.2002
Ex.D31: Original Rectification Deed
dt.19.11.2004
Ex.D32: Encumbrance certificate for the period from 01.06.1989 to 31.03.2005 Ex.D33: Encumbrance certificate for the period from 01.04.2005 to 20.11.2005 Ex.D34: Certified copy of absolute Sale deed dt.01.06.1999 Ex.D35 11 Tax paid receipts 74 O.S.No.1938/2011 to 44: Mutation register Ex.D45: Record of Right of land Sy.No.176 Ex.D46: Khatha extract Ex.D47: Khatha endorsement Ex.D48: Property tax register extract Ex.D49: Original development charges Ex.D50: receipt dt.16.09.1991 Ex.D51 Three other charges receipt to 53: dt.06.03.2000, 26.11.2011 Katha certificate Ex.D54: Katha extract Ex.D55: Endorsement issued by Sub-
Ex.D56: Registrar dt.25.02.2002
Ex.D57 Four acknowledgements issued by
to 60: BBMP
Ex.D61: Copy of layout plan
(BHAIRAPPA SHIVALING NAIK)
XII Addl. City Civil & Sessions Judge,
Bangalore
75 O.S.No.1938/2011
(Judgment pronounced in open court)
The suit of the plaintiff is
decreed with costs as under:-
The plaintiff is entitled to
recover possession of the suit
schedule property from the
defendants. Consequently, the
defendants are directed by
mandatory injunction to remove the
structures put up in the suit
schedule premises and handover
vacant possession of the suit
schedule premises to the plaintiff
within sixty days from the date of
this order.
In case of default, the
plaintiff shall remove the structures
put up in the suit schedule premises
and to recover the vacant possession
in accordance with law.
Draw up a decree accordingly
(vide Judgment passed)
XII ACCJ;Bangalore