Bangalore District Court
Sri.A.J.Prabha Joseph vs Sri.D on 25 July, 2018
IN THE COURT OF THE V ADDL. CITY CIVIL JUDGE,
AT BANGALORE CITY.
(CCH-13)
DATED THIS THE 25th DAY OF JULY, 2018.
PRESENT
Smt.Nagaveni, B.A.,LL.B.
V ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE
O.S.NO.400/2014
PLAINTIFFS: 1. Sri.A.J.Prabha Joseph
S/o M.Andrew Joseph
Aged about 36 years,
2. Smt.S.Vinnarasi
W/o A.J.Prabha Joseph
Aged about 33 years.
Both are residing at
No.107/B, 19th cross,
Lakshmipuram, Ulsoor,
Bangalore-560 008.
(By Sri.A.J.Abdul Kareem,
Advocate)
/VS/
DEFENDANTS: 1. Sri.D,R.Srinivas
S/o D.M.Ramakrishnappa
Aged about 39 years, r/at
No.88/2, Venugopal temple street,
Devasandra, K.R.Puram,
Bangalore.
2. Sri.D.R.Kumar
S/o D.M.Ramakrishnappa
Aged about 39 years, r/at
M/s. "Santhrupthi Nilaya",
Shanimahatma Swamy temple road,
2nd cross, Devasandra,
K.R.Puram, Bangalore.
3. B.V.Manjunath
2 O.S.No.400/2014
S/o B.M.Venkatachalapathy
Aged about 40 years, r/at
No.73, 2nd block, Ayyappanagar,
Devasandra, K.R.Puram,
Bangalore.
(By Sri.R.R.D, Advocate for D1,2
Sri.L.V., Advocate for D3)
Date of Institution of the 13-01-2014
suit
Nature of the suit (suit on Injunction suit
pronote, : suit for declaration
and possession ,suit for
injunction, etc.)
Date of Commencement of 24-08-2016
recording of evidence
Date on which judgment was 25-07-2018
Pronounced
Duration Years Months Days
04 06 12
( NAGAVENI )
V ADDL.CITY CIVIL JUDGE
BANGALORE
*****
JUDGMENT
The plaintiffs have filed the suit for permanent injunction against the defendants praying to restrain them, their agents, servants, henchmen, anybody acting on their behalf from causing any trouble and 3 O.S.No.400/2014 evict the plaintiffs illegally from the schedule property without due process of law and such other releifs.
.2. The averments of the plaint in brief are:
The plaintiffs are the absolute owners in possession of the property bearing Site No.59, property No.49/2, Bruhat Bengaluru Mahanagara Palike khatha No.218, situated at Hoodi (Ayyppa Nagar), K.R.Puram Hobli, Bangalore East Taluk, Bangalore City Corporation Ward No.54, Bangalore-45 having acquired the same as per the sale deed dated 25/08/2012. From the date of purchase of the schedule property, they are in possession and occupation of the schedule property, which is purchased from Sri.S.Srinivasalu Naidu, who had purchased the same from Munivenkatappa, as per the sale deed dated 15/09/1994. The plaintiff was in peaceful possession and enjoyment of the schedule property without any litigations, disputes, and any type of illegality and toucher. When the plaintiff 4 O.S.No.400/2014 demolished the old structure and applied for loan from M/s.Axis Bank and took a loan for construction by depositing the title deeds in the bank by submitting all the original documents in the bank. When the schedule property was purchased by the plaintiffs, the defendant No.3 who is the relative of defendant Nos.1 and 2 had organized for purchase of plaintiffs and had taken the brokerage commission also and have signed in the sale deed. The defendant Nos.1 and 2 together had organized the purchase of the schedule property of the vendor of the plaintiffs and has signed in the sale deed dated 15/09/1994. During the construction of the schedule property, on 13/11/2013 at about 6.30am the defendant Nos.1 to 3 without having any right, title nor interest in the suit schedule property forcibly demolished the constructed portion again on 03/12/2013 repeated the same, the same was reported to the police station and to the Commissioner of police. Thereafter, the defendants tried to extract 5 O.S.No.400/2014 money for settlement and accepted a sum of Rs.3,28,000/- only, promising that they will not interfere. Further contends that defendant nos.1 to 3 again even after accepting the entire amounts, they came to the suit schedule property on 02/01/2014 at about 11.00am alongwith 10 henchmen rushed into the schedule property and tried to dispossess and evict them and stop their construction, causing tremendous loss by taking steel bars, three wooden doors and steel door alongwith the delay and increase in bank interest, however, the plaintiffs made a hue and cry and gathered their neighbours and other family members who rushed to the spot ,upon seeing them the defendants went away promising that they will see how the plaintiffs construct the schedule property. Again the plaintiffs have informed the area police about the illegal acts of the defendants, but by the time police arrived at the spot when the defendants had gone threatening to come again if the plaintiff dares to 6 O.S.No.400/2014 continue to stay in the schedule property, the police expressed their inability that the illegal interference is of civil nature and advised them to obtaine an order of permanent injunction to prevent defendants of his illegal acts. The cause of action for the suit arose on 13/11/2013, 03/12/2013 and again on 02/01/2014 when the defendants tried to trespass and illegally evict the plaintiffs and stop their construction and their peaceful possession and enjoyment of the suit schedule property within the jurisdiction of this Court.
Hence, constrained to file the suit.
3. Inspite of service suit summons, the defendants appeared before the Court and filed their written statement. The defendant No.3 has not chosen to file written statement. The written statement filed by defendant Nos.1 and 2 is as under :
The entire averments denied as false except the admitted facts. The grandfather of the defendants namely Gangappa was the owner of the land bearing 7 O.S.No.400/2014 Sy.No.49/2 at Hoodi village, he having purchased the same through registered sale deed dated 20/10/1921. After the death of Sri.Gangappa, the said property has been inherited by his only son Sri.Munivenkatappa, who is none other than the grandfather of these defendants. Later the said Munivenkatappa expired intestate on 18/09/1998 leaving behind his two sons i.e.,D.M.Ramakrishnappa i.e., father of the defendants and D.M.Gangadaraiah to succeed to his estate including land in Sy.No.49/2. There is no cause of action for filing the suit. The great grandfather of the defendants, Sri.Gangappa had one son namely Munivenkatappa. The said Munivenkatappa had two sons namely D.M.Ramakrishnappa and D.M.Gangadaraiah. Sri.D.M.Ramakrishnappa had 6 children i.e., D.R.Kumar, D.R.Srinivas, Smt.Rathnamma, Smt.Anasuyamma and Smt.Sudha. Similarly Sri.D.M.Gangadaraiah has one daughter namely Smt.Vijayalakshmi and all of them are 8 O.S.No.400/2014 members of Hindu joint family. The property bearing Sy.No.50/4 measuring 2 acre 36 guntas situated at Hoodi village, K.R.Puram Hobli, Bangalore East Taluk, Bangalore i.e., item No.1 of the written statement schedule property and land bearing Sy.No.49/2 measuring 2 acres 37 guntas situated at Hoodi village, K.R.Puram Hobli, Bangalore East Taluk, Bangalore, i.e, suit item No.2 are the written statement schedule property and said properties are ancestral properties of the defendant. The written statement schedule item Nos.1 and 2 property were purchased by defendants great grandfather Gangappa under the registered sale deed dated 03/05/1919 and 20/10/1921. After the death of defendants great grandfather Sri. Gangappa, the written statement schedule item Nos.1 and 2 properties have been transferred in the name of the defendants grandfather Sri.Munivenkatappa under IHC No.7/1984-85. The defendants grandfather Munivenkatappa expired intestate on 18/09/1998 9 O.S.No.400/2014 leaving behind the defendants and other family members as his legal representatives, as such the defendants and other family members have succeeded to the estate of Munivenkatappa including the written statement schedule properties. Further contends that after the death of defendants grandfather Munivenkatappa, the defendants and other family members have continued to stay in a joint family and their father Ramakrishnappa became the kartha of the joint family as such the khatha/mutation in respect of the written statement schedule item No.2 property has been transferred in the name of Ramakrishnappa under IHC No.3/1999-2000 and the khatha in respect of the written statement schedule item No.1 property continued in the name of the defendants grandfather Munivenkatappa. The defendant Nos.1 and 2 were residing jointly with the other family members till the end of December, 1999 and thereafter there arose misunderstanding between the defendants and other 10 O.S.No.400/2014 family members due to which the defendants have started residing separately, but there was no partition among the defendants and other family members in respect of the written statement schedule properties. Though the defendant Nos.1 and 2 are staying separately, the defendant Nos.1 and 2 are in joint possession of the written statement schedule properties since the written statement schedule property are ancestral properties of the defendant Nos.1 and 2 and other family members, each of them are entitled for an equal share in the written statement schedule properties i.e., 1/8th share, as such the defendant Nos.1 and 2 have demanded their father D.M.Ramakrishnappa and their uncle D.M.Gangadaraiah to effect the partition and separate possession of their 2/8th share in the written statement schedule properties, but they turned a deaf ear to the defendants demands. Further contends that when things stood thus the father and uncle of the 11 O.S.No.400/2014 defendants taking undue advantage of the innocence and soft nature of the defendant Nos.1 and 2 have started making efforts to sell the written statement schedule properties and on coming to know the above facts, the defendant Nos.1 and 2 have once again have demanded for partition and separate possession of their each 1/8th share in the written statement schedule properties, but they have refused to partition the written statement schedule properties and on the contrary they were trying to induct the 3rd parties on the written statement schedule properties with malafide intention to defraud the defendant Nos.1 and 2 and other family members legitimate share and they were also trying to create 3rd party interest on the written statement schedule properties. When the father of defendant Nos.1 and 2 and uncle have refused to partition the written statement schedule properties and give separate possession to the defendant Nos.1 and 2, thus the defendant Nos.1 and 12 O.S.No.400/2014 2 have filed a suit in O.S.No.16417/2006 on the file of City Civil Judge, at Bangalore for partition and separate possession in respect of the written statement schedule properties. In the said suit, the defendant Nos.1 and 2 have also filed an application under Order XXXIX Rules 1 and 2 of Code of Civil Procedure for grant of temporary injunction restraining the defendant Nos.1 and 2 in the said suit from alienating the said properties and also restraining them by putting up any construction on the said properties till disposal of the said suit and on 25/11/2006, the Court passed an order restraining the defendants in the said suit or anybody claiming through them from alienating or putting up any construction on the said property and the said order is in force till today. After filing the said suit, some people who claims to have purchased sites in the said lands from the defendant Nos.1 and 2 father and uncle, have filed applications to implead them as defendant Nos.1 and 2 to the said 13 O.S.No.400/2014 suit and they have been impleaded as defendant Nos.1 and 2 to the said suit. Later the sisters of the defendant Nos.1 and 2 Smt.Rathnamma, Anasuyamma and Sudha and Smt.Vijayalakshmi have filed an application to transpose them as plaintiffs from the rank of defendant Nos.1 and 2, the said application came to be allowed and they were transposed as plaintiff Nos.3 to 6. Further contends that plaintiffs have no right, title, interest over the written statement schedule properties or any portion thereof, started interfering with these defendants peaceful possession and enjoyment of the written statement schedule properties by making a false claim that they have purchased site bearing Nos.59 in land bearing Sy.No.49/2 from third party and he all of a sudden trespassed into the site bearing No.59 and tried to put up construction on the said site, on coming to know the said fact, the defendant Nos.1 and 2 tried to explain about the pendency of the case filed by them 14 O.S.No.400/2014 and order passed therein and also when the defendant Nos.1 and 2 questioned the plaintiffs as to what capacity they are making claim over the said site, they have given evasive reply. On 22/08/2013, the defendant Nos.1 and 2 have lodged complaint with K.R.Puram police station. After summoning the plaintiffs by the police, they have produced concocted sale deed dated 15/09/1994 alleged to have been executed by defendants grandfather Munivenkatappa in favour of S.Srinivasalu Naidu, in which property description is given as site No.59, khatha No.261, situated at Hoodi village, Ayyappa nagar, K.R.Puram Hobli, Bangalore South Taluk measuring East to West 40 ft and North to South 30 ft. Further plaintiff has also come up with another sale deed dated 25/08/2012 which is alleged to have been executed by said Srinivasalu Naidu in favour of plaintiffs. The plaintiffs by suppressing all the true facts, had rushed to this Court by filing false and frivolous suit. There is 15 O.S.No.400/2014 no khatha issued by the competent authority either in the name of the plaintiff or in the name of his vendor.
By taking undue advantage of ad-interim order of temporary injunction passed by this Court, the plaintiffs have illegally entered upon the suit schedule property and started putting up construction illegally on the suit schedule property. Hence, prayed that dismiss the suit.
4. On the basis of the above pleadings, the following issues and additional issues were framed :
1) Whether the plaintiffs prove their lawful possession over the suit schedule property ?
2) Whether the plaintiffs prove the alleged interference by the defendants ?
3) Whether the plaintiffs are entitled for the reliefs sought for ?
4) What order or decree ?
5. In order to prove the case, plaintiff No.1 himself examined as PW-1 and got marked Ex.P1 to Ex.P10 and closed his side. The defendant No.1 16 O.S.No.400/2014 himself examined as DW-1 and got marked Ex.D1 to Ex.D7 and closed their side.
6. Both the counsels filed written arguments. Heard on both the sides.
7. My findings on the above issues are as follows:
Issue No. 1: In the Affirmative Issue No. 2: In the Affirmative Issue No. 3: In the Affirmative Issue No. 4: As per the final order for the following:
REASONS
8. Issue Nos.1 & 2: These issues are interconnected and taken together for common discussion to avoid repetition of facts.
PW-1, A.J.Prabha Joseph, in his affidavit evidence has reiterated the plaint averments. To support his affidavit evidence, he has produced Ex.P1, certified copy of the sale deed dated 25/08/2012, Ex.P2 is the certified copy of the sale deed dated 15/09/1994, 17 O.S.No.400/2014 Ex.P3 is the sanctioned plan, Ex.P4 is the khatha certificate, Ex.P5 is the khatha extract, Ex.P6 is the attested copy of the licence, acknowledgement and tax paid receipt, Ex.P7 is the seven photographs, Ex.P7(a) CD, Ex.P7(b) is tax invoice, Ex.P8 is the letter dated 04/01/2014 issued by Axis Bank, Ex.P9 is the two complaints dated 13/11/2013 and 03/12/2013 to the Commissioner of police and Ex.P10 is the receipt executed by Manjunath and others. According to plaintiffs, they are the absolute owners of the property bearing Site No.59, property No.49/2, Bruhat Bengaluru Mahanagara Palike khatha No.218, situated at Hoodi (Ayyppa Nagar), K.R.Puram Hobli, Bangalore East Taluk, Bangalore City Corporation Ward No.54, Bangalore-45 having acquired the same as per the sale deed dated 25/08/2012. Since the date of purchase of the schedule property, they are in possession and occupation of the schedule property and they purchased the property from Sri.S.Srinivasalu Naidu, 18 O.S.No.400/2014 who had purchased the same from Munivenkatappa, as per the sale deed dated 15/09/1994. When the plaintiff demolished the old structure and applied for loan from M/s.Axis Bank and took a loan for construction by depositing the title deeds in the bank by submitting all the original documents in the bank. When the schedule property was purchased by the plaintiffs, the defendant No.3 who is the relative of defendant Nos.1 and 2 had organized for purchase of properties by the plaintiffs and had taken the brokerage commission also and have signed in the sale deed as witness. The defendant Nos.1 and 2 together had organized the purchase of the schedule property of the vendor of the plaintiffs and has signed in the sale deed dated 15/09/1994. During the construction of the schedule property, on 13/11/2013 at about 6.30am the defendant Nos.1 to 3 without having any right, title nor interest in the suit schedule property forcibly demolished the constructed portion again on 19 O.S.No.400/2014 03/12/2013 repeated the same. Then they lodged complaint before the Commissioner of police. Thereafter, the defendants tried to extract money for settlement and accepted a sum of Rs.3,28,000/- only, promising that they will not interfere. The defendant nos.1 to 3 again interfered with their peaceful possession and enjoyment of the suit schedule property even after accepting the entire amounts.
During the pendency of suit, defendants informed them that there is a partition suit in
O.S.No.16417/2006 filed in respect of Sy.No.50/4 and Sy.No.49/2 in the year 2006 even after giving their consent and signed as witness and also after having accepted amounts from them for not disturbing them in their peaceful possession and enjoyment of the schedule property.
9. Per contra, it is the case of the defendants that the great grandfather of the defendants by name Gangappa had one son namely Munivenkatappa, the 20 O.S.No.400/2014 said Munivenkatappa had two sons by name D.M.Ramakrishnappa and D.M.Gangadaraiah. The said Sri.D.M.Ramakrishnappa had 6 children i.e., D.R.Kumar, D.R.Srinivas, Smt.Rathnamma, Smt.Anasuyamma and Smt.Sudha. The said Sri.D.M.Gangadaraiah has one daughter namely Smt.Vijayalakshmi and all of them are members of Hindu joint family. The property bearing Sy.No.50/4 measuring 2 acre 36 guntas situated at Hoodi village, K.R.Puram Hobli, Bangalore East Taluk, Bangalore and land bearing Sy.No.49/2 measuring 2 acres 37 guntas situated at Hoodi village, K.R.Puram Hobli, Bangalore East Taluk, Bangalore, and said properties are ancestral properties of the defendant. The said properties were purchased by defendants great grandfather Gangappa under the registered sale deed dated 03/05/1919 and 20/10/1921. After the death of defendants great grandfather Sri. Gangappa, the properties have been transferred in the name of the 21 O.S.No.400/2014 defendants grandfather Sri.Munivenkatappa under IHC No.7/1984-85. The defendants grandfather Munivenkatappa expired intestate on 18/09/1998 leaving behind the defendants and other family members as his legal representatives. After the death of Munivenkatappa, his son Ramakrishnappa became the kartha of the joint family and the said properties has been transferred in the name of Ramakrishnappa under IHC No.3/1999-2000, they are residing jointly with the other family members till the end of December, 1999 and thereafter have started residing separately, but there was no partition among the defendants and other family members. They demanded for partition and separate possession of their share, but with malafide intention to defraud their rights, they refused to partition. Thereafter, defendant Nos.1 and 2 filed suit in O.S.No.16417/2006 on the file of City Civil Judge, at Bangalore for partition and separate possession. The said suit is still pending. 22 O.S.No.400/2014 Plaintiffs have interference with their peaceful possession and enjoyment of the suit schedule property. In this regard they lodged complaint before the K.R.Puram police. They obtained interim order in O.S.No.16417/2016 dated 25/11/2016. The plaintiffs by suppressing all the true facts, had rushed to this Court. To prove their contention, the defendant No.1 himself examined as DW-1 and got marked Ex.D1 to Ex.D7. On perusal of documents produced by the defendants, it reveals that Ex.D1 is the certified copy of the registered sale deed dated 03/05/1919, Ex.D2 is the certified copy of the mutation register extract, Ex.D3 is the certified copy of the record of rights, Ex.D4 and 5 are the certified copies of the RTC extracts, Ex.D6 and 7 are the certified copies of the ordersheet, plaint in O.S.No.16417/2006.
10. The description of the schedule property mentioned as Site No.59, property No.49/2, Bruhat Bengaluru Mahanagara Palike khatha No.218, situated 23 O.S.No.400/2014 at Hoodi (Ayyppa Nagar), K.R.Puram Hobli, Bangalore East Taluk, Bangalore measuring East to West 40 feet and North to South 30 feet bounded on East by house site No.46, West by road, North by house site No.58 and South by house site No.60. The defendants in their written statement stated that the alleged written statement schedule properties are their undivided Hindu joint family properties. The defendants mentioned written statement schedule property at para No.13 of their written statement stated that property bearing Sy.No.50/4 measuring 2 acres 36 guntas situated at Hoodi village, K.R.Puram Hobli, Bangalore East Taluk, Bangalore i.e., suit item No.1 of the written statement schedule property and land bearing Sy.No.49/2, measuring 2 acres 37 guntas situated at Hoodi village, K.R.Puram Hobli, Bangalore East Taluk, Bangalore is called as item No.2 of written statement schedule property. But defendants have not produced any materials to show that said properties having 24 O.S.No.400/2014 continued their agricultural land. Ex.D2 is the mutation register extract, it reveals that property stands in the name of Munivenkatappa. Ex.D3 is also certified copy of the records of rights, it reveals that in the year 1998 after the death of Munivenkatappa, khatha has been changed in the name of Ramakrishnappa. Ex.D4 reveals that RTC extract stands in the name of Ramakrishnappa for the year 2004-05. Ex.D5 is the RTC extract, it reveals that it sands in the name of Munivenkatappa for the year 2006-07. But defendants have not produced any materials to show that nature of the written statement schedule properties are still agricultural land. Further, Ex.D6 and Ex.D7 are the certified copies of the ordersheet in O.S.No.16417/2006, it reveals that O.S.No.16417/2006 is still pending before the concerned Court. In the said suit, the present defendant Nos.1 and 2 have filed the suit against the defendant Nos.1 to 6 for partition and separate 25 O.S.No.400/2014 possession in respect of the present written statement schedule properties. Thereafter, interested persons who were purchased the sites are impleaded in the said suit. But defendants have not produced any materials to show that they obtained exparte injunction order against defendant Nos.1 to 35. According to plaintiffs, they obtained the exparte injunction order against defendant Nos.1 to 6. But the said exparte injunction order not yet extended. On the other hand, the plaintiff has produced the certified copy of the sale deed dated 25/08/2012, it reveals that plaintiffs have purchased the suit schedule property from Srinivasalu Naidu on 25/08/2012. Ex.P2 is the certified copy of the sale deed dated 15/09/1994. It reveals that S.Srinivasalu Naidu had purchased the suit schedule property from one Munivenkatappa, D.M.Ramakrishnappa and D.M.Gangadaraiah. Further, certified copy of the Ex.P2 reveals that present defendant Nos.1 and 2 have put their 26 O.S.No.400/2014 signatures as witnesses in the said registered sale deed. Ex.P3 document reveals that after purchasing the property, the plaintiffs have obtained sanction plan from Bruhat Bengaluru Mahanagara Palike to construct the house in the suit schedule property. Further, Ex.P4, Uttara Patra and certificate reveals that khatha has been standing in the name of the first plaintiff in respect of the suit schedule property. Ex.P5 is the khatha extract, it reveals that in owner's column, plaintiff name is mentioned as owner of the suit schedule property. Ex.P6 is the licence issued by the Bruhat Bengaluru Mahanagara Palike. Ex.P7 is the seven photos. In the said photos, it reveals that there is no vacant land, buildings were constructed in the said area. Ex.P8 is the letter dated 04/01/2014 issued by Axix Bank, it reveals that plaintiff No.1 had availed loan for construction of the building in respect of the suit schedule property and original documents were handedover to the Axis Bank like sale deed dated 27 O.S.No.400/2014 25/08/2012 and 15/09/1994, tax paid receipts, Encumbrance Certificate form, assessment, khatha certificate and extract ad endorsement, tax paid receipts with acknowledgement, construction licence dated 23/05/2013, approved sanction plan dated 23/05/2013. Ex.P9 is the complaint copy lodged by the plaintiff No.1 against defendant Nos.1 and 2 with respect to interference of the plaintiffs suit schedule property by the defendant Nos.1 and 2. The documents produced by the plaintiff reveals that they are in peaceful possession and enjoyment of the suit schedule property. The defendants have not produced any materials to show that as on 2006 whether the nature of the written statement schedule property stands as an agricultural land. According to defendants, they have not formed any layout in respect of the written statement schedule properties. But photos produced by the plaintiff reveals that there is no agricultural land. According to plaintiffs, they had 28 O.S.No.400/2014 purchased the suit schedule property from Srinivasalu Naidu and the said Srinivasalu Naidu had purchased the suit schedule property from grandfather of defendants by name Munivenkatappa, who was the kartha of the joint family property till 1999. The defendants have admitted in their written statement that written statement schedule item Nos.1 and 2 properties have been transferred in the name of defendants grandfather Sri.Munivenkatappa under IHC No.7/1984-85. Further, it is the specific contention of the defendants that till the death of Munivenkatapa, the khatha stood in his name. The defendants have not produced any materials to show they are in peaceful possession and enjoyment of the suit schedule property. According to plaintiffs, during the lifetime of Munivenkatappa, he had formed layout and sold the sites to several persons. Suppose if the family members of the defendants not sold the sites in the written statement schedule property, the question 29 O.S.No.400/2014 of impleading the applicants in O.S.No.16417/2006 as defendant Nos.7 to 35 does not arise at all. Further, defendants have not produced any materials to show that they have challenged the sale deeds before the concerned Court. The documents produced by the plaintiffs reveals that the suit schedule property already converted into municipal Corporation with roads and also provided electricity. Further, documents reveals that at present suit schedule property come under the Bruhat Bengaluru Mahanagara Palike. Further defendants have not produced any Encumbrance Certificate to show that written statement schedule properties are stands in their name. Moreover, DW-1 in his cross-examination admitted that as per Ex.D2, Sy.No.49/2 stands in his grandfather's name. DW-1 in his cross-examination denied the suggestion made by the plaintiff that during the year 1995, Sy.No.49/2 is converted as non- agricultural land. But no materials produced by the 30 O.S.No.400/2014 defendant to show that Sy.No.49/2 is still in the nature of agricultural land.
11. The plaintiff counsel relied on the decision reported in the following citations:
1. 2017 (2) kar Law Journal 251 in the case of Mallamma (since deceased) by LRs V/s K.A.Gururaj and another.
2. AIR 2016 (4) Kar 132 in between Haleshappa and another V/s K.N.Basvarajappa
3. 2002 ILR (Kar) 1449 in the case of Abdul Ali Mohammed Hussein (since dead) by LRs V/s Mahadev Maruti Manginmani.
4. AIR 2008 S.C 1275 in between Sri.Thimmaiah V/s Shabira and Ors.
5. AIR1997 S.C 1699 in the case of Kalika Prasad and another V/s Chhatrapal Singh(dead) by LRs.
6. AIR 2004 S.C 4609 in between Rame Gowda (D) by LRs V/s Mr.Varadappa Naidu (D) by LRs and another.31 O.S.No.400/2014
The above said decision support the case of the plaintiff. In this case also, written statement schedule properties were converted to non-agricultural. No materials produced by the defendant to show that nature of property is still agricultural land. The photos produced by the plaintiff has not specifically denied by the defendant. The documents produced by the defendant are not sufficient. The photos reveals that there is no agricultural land in respect of the suit schedule properties. Further, plaintiff counsel relied on the decision reported in RSA No.412/1994 in the case of Abdul Ali Mohammed Hussein (since dead) by LRs V/s Mahadev Maruti Manginmani. The above decision is also supporting the case of the plaintiff. In this case also plaintiff has filed permanent injunction. The primary requirement in injunction suit is only possession and interference. In the above decision the Hon'ble High Court held that question regarding title of property is secondary and irrelevant, question of law 32 O.S.No.400/2014 framed touching title of property not proper. In this case also, defendants have failed to prove their peaceful possession and enjoyment of the suit schedule property. Further, plaintiff counsel relied on the decision reported in Civil Appeal No.831/2002 dated 06/02/2008 passed by the Hon'ble Supreme Court of India. The said decision is also supporting the case of the plaintiff. In the above decision also, the Hon'ble Apex Court held that in permanent injunction it is to be shown that plaintiff was in possession. In this case plaintiff has proved that he is in possession of the suit schedule property through oral and documentary evidence. In above decision, the Hon'ble Apex Court observed that undisputedly the suit was one for permanent injunction and in such a suit the plaintiff has to establish that he is in possession in order to be entitled for decree for permanent injunction. The general proposition is well settled that a plaintiff not in possession is not entitled to the relief 33 O.S.No.400/2014 without claiming recovery of possession. Before an injunction can be granted, it has to be shown that the plaintiff was in possession. Further plaintiff counsel relied on the decision reported in Civil Appeal No.1589/1986 dated 18/12/1996 passed by the Hon'ble Supreme Court of India. The above decision is not supporting the case of the plaintiff because plaintiff has not taken contention with regard to adverse possession. Further plaintiff counsel relied on the decision reported in Civil Appeal No.7662/1997 dated 15/12/2003 passed by the Hon'ble Supreme Court of India. The said decision is not supporting the case of the plaintiff because nowhere in the plaint averments the plaintiff has taken question of trespass. In prayer column plaintiff has sought permanent injunction against the defendants restraining them, their agents or anybody from causing any trouble and eviction of plaintiff illegally from the schedule property without due process of law. The materials produced by 34 O.S.No.400/2014 the plaintiff reveals that they are in peaceful possession and enjoyment of the suit schedule property and also obtain loan from Axis Bank to construct the residential house in the suit schedule property. Further, plaintiffs have proved that there is no agricultural land as averred in the written statement. According to defendants, the written statement schedule properties are all agricultural land. But the documents produced by the defendants are not sufficient to prove the nature of the written statement schedule properties are still in agricultural land. Further, the defendants have not taken any steps with respect to formation of layout in Sy.No.49/2 and also civic amenities formed by the Corporation. Hence, plaintiffs prove that when they constructed the house, the defendants are interference with their peaceful possession and enjoyment of the suit schedule property and also in this regard they lodged complaint before the concerned police station. 35 O.S.No.400/2014 Accordingly, I answer issue Nos.1 and 2 in the Affirmative.
12. Issue No.3: In view of my findings given in issue Nos.1 and 2, the plaintiffs have proved that they are in peaceful possession and enjoyment of the suit schedule property and defendants are interference with their peaceful possession and enjoyment of the suit schedule property. Hence, plaintiffs are entitled for permanent injunction in respect of the suit schedule property. Accordingly, I answer issue No.3 in the Affirmative.
13. Issue No.4: In view of my findings given on issue Nos.1 to 3, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby decreed.
Permanent injunction order is granted against the defendants restraining them, their agents, servants, henchmen, anybody acting on their behalf from 36 O.S.No.400/2014 causing any trouble and evict the plaintiffs illegally from the suit schedule property without due process of law.
Both parties shall bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this the 25th day of July, 2018.).
( NAGAVENI ) V ADDL.CITY CIVIL JUDGE, BANGALORE.
**** ANNEXURE List of witnesses examined for the plaintiffs :
P.W.1 A.J.Prabha Joseph List of witnesses examined for the defendants : Nil D.W.1 D.R.Srinivas List of documents marked for the plaintiffs :
Ex.P1 Certified copy of the sale deed dated 25/08/2012 Ex.P2 Certified copy of the sale deed dated 15/09/1994 Ex.P3 Sanctioned plan Ex.P4 Khatha certificate Ex.P5 Khatha extract 37 O.S.No.400/2014 Ex.P6 Attested copy of the licence, acknowledgement and tax paid receipt Ex.P7 Seven photographs Ex.P7(a) CD Ex.P7(b) Tax invoice Ex.P8 Letter dated 04/01/2014 issued by Axix Bank Ex.P9 Two complaints dated 13/11/2013 and 03/12/2013 to the Commissioner of police Ex.P10 Receipt executed by Mr.Manjunath and others List of documents marked for the defendants :
Ex.D1 Certified copy of the registered sale deed 03/05/1919 Ex.D2 Certified copy of the Mutation registered extract Ex.D3 Certified copy of the record of rights Ex.D4,5 Certified copy of the RTC extracts (2 Nos.) Ex.D6,7 Certified copy of the ordersheet, plaint in O.S.No.16417/2006 ( NAGAVENI ) V ADDL.CITY CIVIL JUDGE BANGALORE **** 38 O.S.No.400/2014