Bangalore District Court
Mr. Pawan Kumar Bhihani vs Mr. Obalappa on 17 March, 2018
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BANGALORE CITY. (CCH 30)
Dated this the 17th day of March 2018
PRESENT: SMT. NAGAJYOTHI. K.A., LL.M.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No. 6887/2012
PLAINTIFFS: 1. Mr. Pawan Kumar Bhihani,
Aged about 37 years,
S/o. Jagadish Prasad Bhihani.
2. Mr. Niraj Kumar Bhihani,
Aged about 35 years,
S/o. Jagadish Prasad Bhihani.
3. Mr. Suraj Bhihani,
Aged about 33 years,
S/o. Jagadish Prasad Bhihani.
All are residing at No.129,
11th Main, 9th Block,
2nd Stage, Nagarabhavi Layout,
Bengaluru - 560 072.
(By Sri. N.R.Jayaprakash,
Advocate)
Vs.
DEFENDANTS: 1. Mr. Obalappa,
S/o. Late Rangappa,
Aged about 62 years,
R/a. No.15,
Skylab Apartment,
Madhavanagara,
Bengaluru - 560 040.
2. Mr. Ravishankar,
S/o. Late Rangappa,
Aged about 56 years,
R/a. No.27, 2nd Main,
Attiguppe, Vijayanagara,
Bengaluru - 560 040.
3. Smt. Venkatamma,
Aged about 43 years,
D/o. Late Rangappa,
W/o. Hanumantharaju,
2 O.S.No.6887/2012
R/a. No.26,
Saneguruvanahalli,
Basaveshwaranagara,
Bengaluru - 560 079.
(By Sri. L. Mahadevaiah,
Advocate)
Date of institution of the suit 25/09/2012
Nature of the suit (suit on
pronote. Suit for declaration and Permanent Injunction
possession suit for injunction,
etc.)
Date of the commencement of 19/04/2014
recording of the evidence.
Date on which the judgment 17/03/2018
was pronounced
Total duration Year/s Month/s Day/s
05 05 22
JUDGMENT
This suit is filed against the defendants for permanent injunction restraining the defendants from trespassing or interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs, including demolition of the foundation and pillars in the suit property and for such other reliefs.
2. It is averred in the plaint that, plaintiffs are the absolute owners in possession and enjoyment of site bearing No.66 formed by BDA in Sy.No's.350/9, 350/10 & 350/11 measuring East to West 12.20 Mtrs and North to South 19.80 Mtrs, in total 241.56 Sq.Mrts, situated at K.P. Agrahara, Chandra Layout, Bengaluru - 560 040. The BDA had acquired 3 O.S.No.6887/2012 various land including the aforesaid lands through the acquisition proceedings and formed a residential layout and house-sites in the said lands and the schedule site is one amongst them, which is a corner site. Since the schedule site is a corner site, the BDA had auctioned the said site in public auction as per BDA Rules and the father of the plaintiffs Mr. J.P. Bhihani participated in the said public auction and purchased the schedule site in public auction, by paying the bid amount. In pursuance of the said auction purchase, the BDA had executed a registered auction site sale agreement dated 24.05.1993. BDA had executed a registered sale deed dated 17.11.2003. BDA apart from the above said site had sold the marginal land measuring East to West 12.20 Mtrs and North to South 1.50 Mrts and in all 18.30 Sq.Mtrs, which is situated adjacent to the site bearing No.66 in favour of the father of the plaintiffs and put him in possession and enjoyment of the same. Father of the plaintiffs gifted the schedule property in favour of this plaintiffs, by executing a registered gift deed dated 17.01.2011. BDA by oversight has quoted the survey numbers as 349 & 352 instead of Sy.No.'s.350/10 & 350/11, in which the site bearing No.66 is formed both in the aforesaid auction site sale agreement and sale deed dated 17.11.2003. However, after verification, the BDA has realized the said mistake and has rectified the mistake by correcting the real and true survey numbers as 350/9, 350/10 & 350/11, in which the said site 4 O.S.No.6887/2012 bearing No.66 is formed by executing a registered rectification deed dated 03.08.2012. Plaintiffs after obtaining sanctioned plan licence has started putting up construction and laid the foundation and also erected the pillars by spending huge amount. However, though the defendants have no right, title and interest over the suit property, they have abruptly came to the suit property on 21.09.2012 along with their henchmen, servants, rowdies and anti-social elements and tried to trespass into the suit property and tried to demolish the pillars erected by these plaintiffs and also the foundation laid by the plaintiffs and tried to interfere with the possession and enjoyment of the suit property by the plaintiffs. Defendants and their henchmen returned by threatening the plaintiffs with dire consequences and further told the plaintiffs that they will come again with more men and machineries. The plaintiffs though lodged a complaint before the police, the police have refused to receive the complaint and told the plaintiffs that since the matter is a civil dispute, the plaintiffs can eke out the remedy before the Civil Court. Hence, this suit.
3. The defendants have appeared through their counsel and submitted in the written statement that, the plaintiffs have already filed a suit against this defendant in O.S.No.26629/2011 for the relief of permanent injunction and the said suit is still pending consideration, before CCH - 21. When the suit is pending for the relief of permanent injunction, 5 O.S.No.6887/2012 the present suit for the same relief is not maintainable. It is false to say that the schedule site is one amongst them, which is a corner site. There is no cause of action to file the above suit. The property to an extent of 5½ guntas in Sy.No.349/1 and the property to an extent of 4 guntas in Sy.No.350/12 of Kempapura Agrahara Village, now known as Chandra Layout, originally belongs to one Late Obalappa, who had acquired the same through the registered sale deed dated 20.07.1931. By virtue of the sale deed, the said Obalappa became the absolute owner and he was put in possession of the same. The said Obalappa died intestate leaving behind his only daughter Smt. Thimmakka, the Thimmakka is none other than the mother of the defendants herein. The mother of the defendants herein, has succeeded to the estate of her father Obalappa and the revenue documents have got transferred into her name. City Improvement Trust Board has acquired the properties referred above, including the other properties belonged to the family of the defendants. So far, the possession of the property has not been taken till now and the mother of these defendants was in possession of the said property during her lifetime and who died intestate leaving behind these defendants to succeed the said property. During the lifetime of the mother of the defendants, she has put up a small ACC roofed house around the house she has erected a compound in an area of East to West 80 feet, and North to South 130 feet. Jagadish Prasad Bihani, the father of 6 O.S.No.6887/2012 the plaintiff himself has not derived any right, title or interest muchless possession over the suit schedule property. However, the said Jagadish Prasad Bihani has executed the alleged gift deed dated 17.01.2011 in respect of the suit schedule property in favour of the plaintiffs. The gift deed executed by Jagadish Prasad Bihani, in favour of plaintiffs is a sham document having no bearing in the eye of law. Neither the father of the plaintiffs nor the plaintiffs have derived any right, title, interest muchless possession over the suit schedule property. Hence, prays for dismissing the suit.
4. In proof of their case, the plaintiff No.1 has got examined himself as P.W.1 and relied upon the documents Exs.P.1 to P.38. The defendant No.2 has got examined himself as D.W.1. Exs.D.1 to D.40 were marked.
5. Heard arguments.
6. Considering the facts and circumstances and the material available in the matter, my predecessor has framed the following issues as under -
ISSUES (1) Whether the plaintiffs prove that they are in lawful possession and enjoyment of suit schedule property as on the date of this suit?
(2) Whether plaintiffs further prove that the defendants are trespassing or interfering with the plaintiffs peaceful possession and enjoyment of suit schedule property including demolition of foundation and pillars in the suit property as alleged?
(3) Whether plaintiffs are entitled for permanent injunction as sought for?
7 O.S.No.6887/2012(4) What order or decree?
7. My findings to the above issues are as under:-
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Issue No.4 : As per final order for the following-
REASONS
8. Issue No.1:- It is a suit for bare injunction. Plaintiff claims his right and possession in the suit schedule property on the basis of gift deed executed by his father on 17.01.2011 and since then they are in possession and enjoyment of the same. Originally, the suit schedule property is acquired by BDA and the plaintiffs' father purchased it in auction sale agreement dated 24.05.1973, as it is a corner site. BDA also sold marginal land area of this site to plaintiff's father. Thereafter, BDA executed the sale deed on 17.11.2003 in favour of plaintiffs' father. The property was gifted on 17.01.2011. In between this period, there is a rectification deed in respect of survey number.
9. However, the defendant's contention is that, he purchased the suit schedule property through the earlier owner i.e., Obalappa, who purchased it through the registered sale deed dated 20.07.1931. After his death, the defendants' mother, who is the only daughter of said Obalappa inherited the schedule property. When it comes to the jurisdiction of the City Improvement Trust Board (CITB) and when the land acquisition proceedings were going on, plaintiffs' mother filed objection to 8 O.S.No.6887/2012 an extent of property, measuring 5½ guntas in Sy.No.349/1 and 5 guntas in Sy.No.350/12. So, the acquisition proceedings were dropped in respect of this site and property is still remained as agricultural land, as they were not received any compensation. She has put up a small ACC roofed house around the house of the mother of the defendants. When BDA has tried to interfere her right, she also filed a suit for permanent injunction, where she obtained decree in her favour. When one Jagadish Prasad Bihani, father of the plaintiffs tried to interfere with the peaceful possession, again she filed suit, where she also obtained injunction order and it was still in force. However, plaintiff has tried to erect the pillars in the suit schedule property. Then, he filed an application under Order XXXIX, Rule 2A of CPC. So, to overcome all these facts, the plaintiff filed this suit.
10. While arguing the case, it is also brought to the notice that, as per the registered agreement of BDA with the plaintiff's father, there was a condition that the plaintiff must construct the house building within 2 years. But it was not complied. Without complying the condition much after the agreement, in the year 2003, the sale deed was executed. Hence, it is in violation of condition and plaintiffs' father has not derived any valid title on the said document. So, the plaintiff has no right over the schedule property.
11. Plaintiff himself deposed as P.W.1 and produced various documents since from the execution of auction site sale 9 O.S.No.6887/2012 agreement. He was produced the certified copy of the auction site sale agreement, sale deed dated 17.11.2003 and sale deed of marginal land dated 15.09.2009 and gift deed of 17.01.2011. No doubt, it is only a bare injunction suit. Whereas, the defendant herein questions the original title of plaintiffs' father, who is claimed to be the original purchaser from BDA and also challenges the existence of said property. Defendant claiming ownership title in suit schedule property produced various documents. Whereas, herein, plaintiff filed only certified copy of title document and there is no explanation put forth for not producing the original document. He admitted that, in respect of preliminary notification and final notification of land acquisition proceedings, it was not specified the property referred herein is also acquired. Ex.P.35 is the preliminary notification for the acquisition proceedings dated 30.07.1978. Ex.P.36 is the final notification dated 10.05.1978. As per the plaint pleading, the suit schedule property is situated in Sy.No's.350/9, 350/10 & 350/11 of K.P.Agrahara, Chandra Layout. Whereas, on perusal of their final notification shows Sy.No.350/9 is in the name of Chikkanna S/o Chikkanagappa, measuring only 4 guntas; Sy.No.350/10 is in the name of Beelu, measuring 3 guntas and Sy.No.350/11 is in the name of Doddanarasimhaiah, measuring 3 guntas were acquired. So, the above referred number of properties of Thimmakka or her father Obalappa, is not acquired in the list. The property of 10 O.S.No.6887/2012 Thimmakka W/o Rangappa, is bearing Sy.No.350/12, measuring 4 guntas only acquired. So also plaintiff failed to establish the acquisition of the schedule property.
12. It is also pertinent to note that, there is a gap of long years for execution of agreement and the sale deed. The agreement is dated 24.05.1993 and the sale deed is dated 17.11.2003. Further it is crucial to note that the rectification deed was executed on August 3, 2012. So, this long gap of 9 - 10 years itself raises a doubt on the plaintiffs' lawful possession or plaintiffs' father's possession of the suit schedule property. Plaintiff produced the original document of rectification deed. Certainly it does not conclude on the settled possession of the plaintiff. P.W.1 admitted the condition in the sale agreement that, building should be completed within 2 years. It is also admitted that, only after construction of the building, BDA executes the sale deed. But, without construction of the house building, BDA executed the sale deed as per Ex.P.12. When he was questioned about Ex.P.2/sale deed, he is not knowing that whether his father gave application for extension of time. He was not remembering the date in sale deed/Ex.P.2. He was not remembering when khatha was changed in the name of his father. It is admitted that, there is a rectification deed in respect of survey number boundaries, but no rectification in respect of site No.66. He was not even knowing whether BDA granted the compensation to the owner referred in Exs.P.1 & 11 O.S.No.6887/2012 P.2. It is also admitted that, the defendant's earlier suit was filed against his father. He replied that, when the suit of the defendants is pending for enquiry, the BDA executed the sale deed in favour of his father. He was admitted that, he was not produced any document to show that the site No.66 is the corner site and no sketch is produced in respect of the same. It is also admitted that, there is also mistake in the survey number referred in the agreement for sale, sale deed and corner site sale deed. It is also admitted that, the rectification deed was not executed in favour of his father. Further, he replied that, his father was executed gift deed in favour of his 3 children. However, it is also true that, 3 children of Jagadish Prasad Bihani were not the auction purchasers. He identified the defendants photocopies/Exs.D.1 to D.3 as connected to the suit schedule property, where it clearly shows there is no house building existing, but the compound wall was erected around the property. The photo was taken on 17.06.2013. The subsequent photos Exs.D.4 to D.6 also proves the existence of small shed.
13. While arguing the plaintiff's counsel stresses that this suit property is existing in Sy.No's.350/9, 350/10 & 340/11 is not in dispute and it reverts back to the original date etc. Whereas, as truly contended, the plaintiff failed to prove his title and possession over the suit property and also his continuous possession in it and it is BDA acquired property. Whereas, the 12 O.S.No.6887/2012 defendant is successfully established that the small portion of the defendant's property was left from the acquisition proceedings and it is in their possession. Prior title is the sale agreement which contains the conditions. Admittedly, the plaintiff is not followed the conditions. So, subsequent title deeds on this document as truly contended by the defendant does not gives any validity. Further, he relies on the document Ex.D.24. The suit filed by Ravishankar S/o Rangappa against J.P. Bhihani, where it refers that they are in possession of the property bearing Sy.No's.349/1 & 350/12 situated at Gramatana Layout, K.P. Agrahara. So, here they were not seeking right over Sy.No's.350/9, 350/10 & 350/11. Whereas, the plaintiff has also needs to establish that his Sy.No.66 needs to corroborate the same because, his own sale agreement, which is the earliest document to claim right over the schedule properties refers, it is existing in Sy.No's.350/9 & 352. So, without rectifying the original document, the rectification is not executed in favour of original plaintiff. There is no proceedings as to how rectification is concluded, as it is existing in Sy.No's.350/9, 350/10 & 350/11 were not clarified.
14. Instead of that, on perusal of defendant's document shows the plaintiff claims his right commences from the date of sale agreement in 1993. The sale deed was executed in the year 2003. Whereas, prior to this itself i.e., in the year 2001, the defendants' mother Thimmakka filed O.S.No.16810/2001 and 13 O.S.No.6887/2012 obtained decree in her favour. In the plaint pleading of this suit, Ex.D.9 refers that, she is continuously in possession of the suit schedule property in the last week of October 2000. The defendants' Authority persons (BDA) were threatening of demolishing the building. It is her claim that, she is residing there since last 2 decades. It is also submitted that, she obtained decree against BDA i.e., BDA is in knowledge of the suit of the defendants' mother. Whereas, in the year 2003, when the proceedings is pending before the court, it has executed the sale deed and that also by violation of condition of sale agreement. Further, she has also submitted that, she filed O.S.No.3356/2011 against the plaintiffs' father, where also she obtained decree in her favour and in the pendency of that suit and existence of temporary injunction order, the plaintiffs' father tried to erect the pillars in the suit property and then she filed an application under Order XXXIX, Rule 2A of CPC. So, it is the defendant who filed remaining two suits against the plaintiff and contending that they are in lawful possession over the suit property and also right over the suit property. So, even after knowledge of these proceedings, the plaintiff has not preferred any declaration suit against the defendants. It is also pertinent to note that, plaintiff preferred the O.S.No.26629/2011. So, the defendant is in possession of the property in Sy.No's.349/1 & 350/2012. Plaintiff filed O.S.No.26629/2011, where the court has only issued emergent 14 O.S.No.6887/2012 notice and it is alleged that, plaintiff is enjoying the suit property since from the date of execution of gift deed dated 17.01.2011. So, till 2011, the plaintiffs' father has not preferred any suit to confirm his right in the suit property. It is also pertinent to note that, here in this suit, he alleges the property bearing Sy.No's.349 & 352. So, even in the year 2011, plaintiff claimed right on the Sy.No's.349 & 352 and not Sy.No's.350/9, 350/10 & 350/11. For changing his stand on the suit Sy.No.350/9, there is no revenue records proceedings. There is no reference. I perused the rectification deed/Ex.P.5. It only says that "¢£ÁAPÀ 27.05.1993 gÀ ºÀgÁdÄ ªÀiÁgÁl PÀgÁgÀÄ ¥ÀvÀæzÀ°è ºÁUÀÆ ¢£ÁAPÀ 29.11.2003 gÀ ºÀgÁdÄ ªÀiÁgÁl PÀæAiÀÄ¥ÀvÀæzÀ°è ªÀÄvÀÄÛ ¢£ÁAPÀ 16.09.2009 gÀ CAa£À ¨sÁUÀzÀ PÀæAiÀÄ¥ÀvÀæzÀ°è ¤ªÉñÀ£ÀzÀ §qÁªÀuÉAiÀÄ£ÀÄß ZÀAzÁæ §qÁªÀuÉ, PÉ.¦. CUÀæºÁgÀ ¸ÀªÉð £ÀA. 350B9zÀ 350B10, 350B11 JAzÀÄ £ÀªÀÄÆ¢¸ÀĪÀÅzÀPÉÌ §zÀ¯ÁV ZÀAzÁæ, (¸ÀªÉð £ÀA. 349 ªÀÄvÀÄÛ 352 PÉ.¦.J.) (UÀAUÉÆqÀ£ÀºÀ½î) JAzÀÄ vÀ¥ÁàV £ÀªÀÄÆ¢¸À¯ÁVgÀÄvÀÛzÉ. DzÀÝjAzÀ F wzÀÄÝ¥Àr ¥ÀvÀæªÀ£ÀÄß £ÉÆÃAzÁ¬¸ÀĪÀ ªÀÄÆ®PÀ ¸ÀzÀj ºÀgÁdÄ ¤ªÉñÀ£ÀzÀ §qÁªÀuÉAiÀÄ£ÀÄß ZÀAzÁæ §qÁªÀuÉ, PÉ.¦. CUÀæºÁgÀ ¸ÀªÉð £ÀA. 350B9, 350B10, 350B11 JAzÀÄ wzÀÄÝ¥Àr ªÀiÁr ¸Àj¥Àr¸À¯ÁVzÉ." There is no single statement on how it come across these errors and how they rectified and on what basis it was rectified and on whose order it was rectified. Whether there is any notice served upon the same survey number owners for their concerned rectification. There is no averment at all. It only shows that the Authoritative Body Officers behaved negligently by executing the legal document and causing hardship to the common people. 15 O.S.No.6887/2012 P.W.1 says that, in the year 2011, they obtained licence for putting the compound wall. But, there is no document to show the existence of compound wall prior to 2011. It is also admitted that, when the suit in O.S.No.26629/2011 is filed before the Mayo Hall Court and pending for enquiry, this suit has been filed. Herein it is pertinent to note that, in O.S.No.26629/2011, his claim is on property of Sy.No's.349/1 & 350/12 and in this suit, he is claiming Sy.No's.350/9, 350/10 & 350/11. So, in this suit, his contention is the defendants and plaintiffs suit survey numbers are different. It is also admitted further the said suit was withdrawn in the year 2014 - 2015 i.e., even during pendency of this suit, the said earlier suit was also pending in the court. They were not obtained any permission before withdrawing the suit before the Mayo Hall Court. It is admitted that, as per Ex.P.20, the defendant's appeal was allowed. It is also admitted that, Ex.P.24 is the letter written by BDA does not reflects the seal and signature of the Officer. I perused the same document. Ex.P.25 is the letter written by Chandra Layout police station to identify the plaintiff's property. Ex.P.24 is the letter written by BDA, Land Acquisition Officer, dated 08.05.2012, where it refers about Sy.No's.350/9, 350/10 & 350/11. It has not bear any seal and signature. The signature written below, it is not readable. It has also annexed with the sketch, where it is written as Office of Land Acquisition Officer, BDA, dated 16 O.S.No.6887/2012 18.04.2013 and shows one signature. It has also no seal. So, these documents clearly shows plaintiff documents has no legal binding. Further, he admitted that, on the basis of Ex.P.24, he got executed the rectification deed. When Ex.P.24 itself is not valid under law, the rectification deed also does not gets any right. It is also admitted that, in the earlier suit before the Mayo Hall Court in O.S.No.26629/2011, he obtained temporary injunction, by referring on Sy.No's.349 & 352. It is also admitted that, the schedule referred in the suit property and the property referred in Ex.P.22 are different. Ex.P.22 is the building licence. This building licence is issued on 24.02.2011.
15. It is argued that, there is no boundary dispute in this case. Whereas, the identity of property itself is disputed by the defendant and plaintiff failed to confront the defendant's documents and the documents on which, plaintiff is relied upon, itself shows the prima-facie defects. It is also pertinent to note that, he has executed the gift deed. Whereas, plaintiff has not examined his father to corroborate his right on registered sale deed and gift deed. He denied the suggestion that, there is no khatha in his name and he was not paying the property tax. It is pertinent to note that, as per his own document, he paid tax of Rs.4,927/- in the year 2008. But, thereafter, it comes to Rs.1,200/-. Instead of increasing, herein it was reduced. So, the plaintiff failed to establish his right on suit property. Hence, his Encumbrance Certificate/Ex.P.6, khatha/Exs.P.7 & P.8 and 17 O.S.No.6887/2012 tax receipt/Ex.P.9 does not proves plaintiff's lawful possession. Ex.P.10 is possession certificate issued to the plaintiff's father, it clearly specifies Sy.No's.349 & 352. There is no mention as any corner site. But, the evidence clearly shows at that time, dispute existing between the plaintiff and defendant. Herein also it was narrated that "¤ªÉñÀ£À ¤AiÀĪÀiÁªÀ½UÀ¼À µÀgÀwÛUÉ §zÀÝ£ÁV ¢£ÁAPÀ 27.05.1993 gÀAzÀÄ £À£Àß ¸Áé¢üãÀPÉÌ M¼À¥ÀlÄÖ vÉUÉzÀÄPÉÆArgÀÄvÉÛãÉ." In the backside of his document, the document of margin land was executed. Here, it refers the Sy.No's.348, 349, 351 & 352, and it was granted as per the order dated 15.05.2009. But, the order copy is not produced. This margin property sale deed was executed in the year 2009. But, at that time, ambiguity of identity of schedule property is seriously contesting before the court. Ex.P.11 is the khatha letter dated 13.12.1993 also says the property is situated at Sy.No's.349 & 352. The sale deed of this margin land is marked as Ex.P.13, it is dated 15.09.2009 in respect of his payment of Rs.6,26,244/-. Since there is a change in the measurement of schedule properties, they are rectifying it. Whereas, in view of absence of production of referred document sale deed has no validity under law.
16. The defendant No.2 deposed himself on behalf of his brothers, defendant No's.1 & 3. In the evidence he was produced his sale deed, encumbrance certificates, electricity bills, judgment copy, plaint and written statement referred in the original suits and also produced the Index of the Land and 18 O.S.No.6887/2012 RTC. In the cross-examination he replied that, he knows the contents of the cross-examination evidence of D.W.1. He admits that, in this property his grandfather and mother have no right in Sy.No's.350/1 & 350/11. Whereas, the plaintiff's contention is earlier Sy.No's.349/1 & 352/11 i.e., now Sy.No's.350/10 350/11. He was thoroughly cross-examined in respect of identity of suit schedule property. Whereas, in respect of this matter, this court has already elaborately adjudicated. It is admitted that, there is no connection between the property No.66 and site No.97. He was not knowing when the BDA was formed layout in Sy.No's.349/1 & 350/2012. So, in any respect, the plaintiff failed to establish his lawful possession in the suit schedule property and also failed to prove the existence of the suit schedule property.
17. It is argued that, the defendant's suit property is not in existence. Plaintiff has no valid title document and there is no revenue document in support of that. As rightly contended survey numbers are different in the earlier deeds. Exs.P.2, P.3 & P.6 are the registered documents. Moreover, it is also true that, the boundary is essential for identification of immovable property. Plaintiff is not paying regular tax. Hence, in the ends of justice and equity, plaintiff failed to prove the Issue No.1. Accordingly, I hold Issue No.1 in the 'Negative'.
18. Issue No.2:- Infact, when plaintiff failed to prove the lawful possession, there is no need of adjudication upon the 19 O.S.No.6887/2012 interference. On 21.09.2012, the defendants were threatening of demolishing the pillars erected by the plaintiffs. In respect of the same, plaintiff reveals the photocopies, which only bears the existence of pillars, but it does not corroborates it was erected by the plaintiffs only. He has no lawful possession, his errection of the pillars has no document. When the suit is pending before the Mayo Hall Court, the plaintiff filed this suit. Whereas, same was not revealed in this suit and while withdrawing the suit from Mayo Hall Court, he has not obtained permission in the said suit for continuing this suit.
19. Whereas, while cross-examining the D.W.1, he was thoroughly cross-examined the witness in respect of land, as the defendant purchased the portion of their properties and no vacant place left for possession and enjoyment. Whereas, herein it is the plaintiff's suit and he has to prove his possession in the suit schedule property. When his survey number is not specifically corroborated, the question of adjudication of defendant's documents does not arises. The defendant has also not filed counter claim. D.W.1 admitted through the registered sale deed which executed by them in respect of Sy.No.350/12 and it is marked as Ex.P.33. Ex.P.33/sale deed is executed on 05.08.2013 i.e., during pendency of this suit, it has narrated the property as bearing Sy.No's.349/1 & 350/12, out of it measuring 57 X 90 feet. The schedule is given as East : Cross Road; West : Property belongs to other; North : Property sold to 20 O.S.No.6887/2012 N. Ranganath, measuring 57 X 45 feet, on the same date; and South : Chandra Layout Main Road. Ex.P.34 is the sale deed of said N. Ranganath executed by the same defendant. Here also the property referred as Sy.No's.349/1 & 350/12 consisting BBMP Ward No.36(132) of Atthiguppe, Chandra Layout Main Road, bearing Municipal No.97 on the Northern portion, the schedule is given as East : Cross Road; West : Property belongs to other; South : EzÉà £ÀA§gï ¥ÀÈQ £ÁªÀÅUÀ¼ÀÄ G½¹PÉÆArgÀĪÀ GvÀÛgÀ ¨sÁUÀzÀ ¸ÀévÀÄÛ ; and North : EzÉà £ÀA§gï ¥ÉÊQ £ÁªÀÅUÀ¼ÀÄ F ¢£À ²æà eÉ.n. ¸Àwñï ZÀAzÀæ gÀªÀjUÉ ªÀiÁgÁl ªÀiÁrgÀĪÀ 57 X 45 CrUÀ¼À SÁ° ¤ªÀÉñÀ£À. Moreover, these properties are includes two residential houses. Remaining property is a vacant land. So, the defendant tried to raise doubt on the defence contention. But, it does not prove the plaintiff's case. Ex.D.7 is the sale deed executed in favour of Obalappa. Herein, the measurement is given as follows:
"ºÀ¢£ÉÊzÀÄ PÉƼÀUÀ ©ÃdªÀA ¥À²ÑªÀÄPÉÌ UÀÄAqÀ¥Àà£ÀªÀgÀ PÉÌ CwÛUÀÄ¥ÀÉàUÉÆÃUÁqÀĪÀÅzÀPÉÌ ¨ÀsÃdªÀA ¸ÀĪÀiÁgÀÄ ºÀvÉÆÛA§vÀÄÛ ±ÉÃgÀĪÀżÀîzÀÝ£ÀÄß PÀ½¸À®ànÖgÀÄvÀÛÉãÉ."
The Index of the Lands shows the property is measuring 5½ guntas and 4 guntas. D.W.1 replied further that, "¸ÀªÉð £ÀA§gï 350B12 gÀ d«iÀãÀ£ÀÄß ©lÄÖ G½zÀ d«ÄãÀÄUÀ¼À£ÀÄß ¨Às¸Áé¢üãÀ¥Àr¹PÉÆArzÀÝgÀÄ. ¤ªÉñÀ£À ¸ÀASÉåB66£ÀÄß ¸ÀªÉð £ÀA§gï 349 ºÁUÀÆ 352 gÀ°è ¤«Äð¹zÀÝgÀÄ JAzÀÄ ¤¦.1 gÀ°è £ÀªÀÄÆ¢zÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è." Her sale deed shows site number is 97. She was questioned in respect of not challenging the rectification deed. So, when he is not party to this deed, the question of challenging the same does not arises. He admits that, he has no right in 21 O.S.No.6887/2012 Sy.No's.350/9, 350/10 & 350/11 and also admitted that he has no connection with the said survey number and site No.66.
20. In respect of interference, he was suggested that the plaintiff was complained to the police on 30.10.2011, as the defendant often quarreling with them and for that, Chandra Layout police wrote a letter to BDA to give status of the site, of which the witness replies as not knowing. So, in respect of interference, plaintiff failed to elicit any reply from the defendants. The plaintiffs produced the document of tax paid receipts commencing from the period of 2003, they are Ex.P.38, totally 15 in numbers. Whereas, they are for the Sy.No's.349 &
352. So, these tax paid receipts clearly does not prove the possession on the suit schedule property. It is the defendant who initiated the proceedings against the plaintiff and restraining his interference in the suit property. Since from the period of 2003, the plaintiff is aware that the defendant is challenging right. But, instead of confirming his right, he has filed the suit for bare injunction suit. When plaintiff is aware that the defendant is challenging his right, the plaintiffs' father instead of confirming his title, he transferred the right to the plaintiffs. So, without confirming his title, no better title transfer to the plaintiff. Hence, on all these reasons, it shows plaintiffs failed to prove the interference of the defendants. There is no material on demolition of foundation on pillars. Moreover, plaintiffs failed to establish their lawful possession. 22 O.S.No.6887/2012
21. The defendants' referred the citation (1) AIR 2004 Allahabad 394 in the case of Manjoor Ali and another Vs. Kishmat Ali and others, which reads thus:
"No action whatsoever was taken by the plaintiff's father or by plaintiffs to get their names mutated in revenue records or to take possession and therefore, sale deed was never acted upon - Sale deed did not indicate extent of her share in disputed property - Judgment of consolidation Authorities that plaintiffs were neither recorded nor were in possession over plots in question on basis of sale deed before date of vesting - Concurrent findings of Courts that sale deed did not confer any right upon plaintiffs and as such they were not entitled to relief of injunction - No interference."
(2) Citation AIR 2006 Orissa 131 in the case of Khalil Nahak Vs. Hadu Nahak (dead) and others, which reads thus:
"Specific Relief Act (47 of 1963), Ss.6, 26 - Transfer of Property Act (4 of 1882), S.52 - Suit for restoration - Defendant allegedly encroached suit land - Plea by defendant that he had purchased suit land from it's owner - Land described in sale deed in favour of plaintiff did not relate to suit land - Plaintiff obtained rectification deed showing land as part of relevant patta number - Rectification deed was however obtained during pendency of suit without leave of Court - Document i.e., rectification deed was clearly hit by S.52 of T.P.Act - Finding as to title and possession in favour of defendant - Nor interfered with."
(3) Citation 2010 AIR SCW 6555 in the case of Har Narain (Dead) by L.Rs. Vs. Mam Chand (Dead) by L.Rs. & Others, which reads thus:
"(B) Transfer of Property Act (4 of 1882), S.52 -
Lis Pendens - Registration of sale deed subsequent to filing of suit - Doctrine of lis pendens, applies - Subsequent purchasers cannot claim benefit of provisions of S.19(b) of Specific Relief Act." 23 O.S.No.6887/2012 (4) Citation ILR 2010 Karnataka 629 in the case of Smt. Nancy Pais Vs. S. Surendra and another, which reads thus:
"A transferee pendent lite need not be made a party to the suit. She is bound by the decree in as much as she was a party to the suit. Section 52 of the Transfer of Property Act has an overriding effect and is not subject to Section 19(b) of the Specific Relief Act. Though Section 19(b) of the Specific Relief Act protects a transferee for value without notice, a transferee pendent lite is not entitled for such a protection. - Section 19 of the Specific Relief Act can be enforced for good and sufficient reason - The appellant is not entitled to plead that she is a bonafide purchaser for value without notice of the litigation."
(5) Citation 2017(5) ALT 245 in the case of Dolla Subba Rao and another Vs. Eeda Amrutha Rao and others, which reads thus:
"In a suit for Injunction under Order 39, Rule 1 & 2 CPC, the burden of proof is upon the plaintiff to establish his possession over the suit schedule property. He can't rely upon the weakness of the case of the Defendant." "It is Settled Law that Tax Receipts are not evidence of possession. Also Bank Pass books, Pension Pass Book and Ration Card can't be treated as evidence of possession of the Plaint Schedule Property."
The above citations are aptly applies to the case in hand. Hence, appreciating the ratio of defendants' citations, I hold Issue No.2 in the 'Negative'.
22. Issue No.3:- In view of my findings given on Issue No's.1 & 2, the plaintiffs are not entitle for the reliefs as sought for. Accordingly, I hold Issue No.3 in the 'Negative.
23. Issue No.4:- In view of the reasons stated supra, I proceed to pass the following:
24 O.S.No.6887/2012
ORDER The suit is dismissed.
No order as to costs.
Draw the decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court, on this the 17th day of March, 2018) (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bangalore City.
ANNEXURE List of witnesses examined for the plaintiffs' side:-
PW.1. Pawan Kumar Bihani List of documents exhibited for the plaintiffs' side:- Ex.P.1 CC of auction site sale agreement dated
24.05.1993.
Ex.P.2 CC of sale deed dated 17.11.2003.
Ex.P.3 CC of sale deed dated 15.09.2009 in respect of
marginal land.
Ex.P.4 CC of gift deed dated 17.01.2011.
Ex.P.5 Rectification deed dated 03.08.2012.
Ex.P.6 Encumbrance certificate from the year 2009 to
2012.
Ex.P.7 Khatha extract dated 11.09.2012.
Ex.P.8 Khatha certificate dated 11.09.2012.
Ex.P.9 Tax paid receipt dated 24.03.2012.
Ex.P.10 Possession certificate issued by BDA on
10.08.1993.
Ex.P.11 Khatha letter issued by BDA on 13.12.1993.
Ex.P.12 Auction site sale deed dated 17.09.2003.
Ex.P.13 Marginal sale deed dated 15.09.2009.
Ex.P.14 Registered gift deed dated 17.01.2011.
Ex.P.15 Khatha certificate.
Ex.P.16 Khatha extract.
Ex.P.17 CC of order-sheet in O.S.No.16810/2001.
25 O.S.No.6887/2012
Ex.P.18 CC of order-sheet in O.S.No.26629/2011.
Ex.P.19 CC of the order in RFA No.1753/2010.
Ex.P.20 CC of the order in W.P.No.29819/-29822/2013.
Ex.P.21 CC of the order-sheet in O.S.No.3356/2011.
Ex.P.22 Building licence issued by BBMP on 24.05.2011.
Ex.P.23 Building sanctioned plan.
Ex.P.24 Letter dated 08.05.2012 written by BDA to the
Chandra Layout P.S.
Ex.P.25 Letter dated 05.11.2011 written by Chandra Layout
police to the BDA Commissioner.
Ex.P.26 Sanjevani daily newspaper dated 12.01.2013.
Ex.P.26(a) Portion of publication.
Exs.P.27}{ 6 photographs.
to }{
P.32}{
Exs.P.27(a) }{ Negatives.
to }{
P.32(a) }{
Ex.P.33 CC of sale deed dated 05.08.2013.
Ex.P.34 CC of sale deed dated 05.08.2013.
Ex.P.35 BDA issued preliminary Gazette Notification u/s.17,
dated 30.07.1977.
Ex.P.36 BDA issued preliminary Gazette Notification u/s.19,
dated 10.05.1978.
Ex.P.37 Encumbrance Certificate for the period from 1007
to 2013.
Ex.P.38 15 Tax paid receipts.
List of witnesses examined for the defendants' side:-
D.W.1 Ravishankar List of documents exhibited for the defendants' side:-
Exs.D.1}{ 6 Photographs.
to }{
D.6}{
Ex.D.7 CC of registered sale deed dated 20.07.1931.
Ex.D.8 CC of sketch pertaining to Sy.No's.349/1 & 350/11.
Ex.D.9 Encumbrance Certificate pertaining to Sy..No.349/1
for the period from 08.05.1997 to 31.03.2004.
Ex.D.10 Encumbrance Certificate from the period from 26 O.S.No.6887/2012 01.04.2004 to 04.07.2011.
Ex.D.11 Encumbrance Certificate pertaining to Sy.No.350/12 for the period from 01.04.2004 to 04.07.2011.
Exs.D.12}{ 7 Electricity bills and receipts.
to }{
D.18}{
Ex.D.19 CC of plaint in O.S.No.16810/2001.
Ex.D.20 CC of written statement in O.S.No.16810/2001.
Ex.D.21 CC of judgment in O.S.No.16810/2001.
Ex.D.22 CC of decree in O.S.No.16810/2001.
Ex.D.23 CC of order-sheet in O.S.No.3356/2011.
Ex.D.24 CC of plaint in O.S.No.3356/2011.
Ex.D.25 CC of written statement in O.S.No.3356/2011.
Ex.D.26 CC of the application (I.A.) u/Order XXXIX, Rule 1
& 2 of CPC submitted in O.S.No.3356/2011.
Ex.D.27 CC of order-sheet in O.S.No.26629/2012.
Ex.D.28 CC of the application (I.A.) u/Order XXXIX, Rule 1
& 2 of CPC submitted in O.S.No.26629/2012.
Ex.D.29 CC of plaint in O.S.No.26629/2012.
Ex.D.30 CC of written statement in O.S.No.26629/2012.
Ex.D.31 CC of the application (I.A.) u/S.150 of CPC
submitted in O.S.No.26629/2012.
Ex.D.32 CC of objection to the application (I.A.) u/s.151 of
CPC submitted in O.S.No.26629/2012.
Ex.D.33 Electricity bill.
Ex.D.34 Electricity receipt.
Ex.D.35 Index of Land of K.P.Agrahara Sy.No.349/1.
Ex.D.36 Index of Land of K.P.Agrahara Sy.No.350/12.
Ex.D.37 Pahani pathrike pertaining to Sy.No's.349/1 &
350/12.
Ex.D.38 Electricity Bill.
Ex.D.39 Electricity receipt.
Ex.D.40 Letter dated 17.06.2016 sent by Asst. Executive
Engineer, BESCOM.
XXIX Addl. City Civil Judge,
Bangalore City.
27 O.S.No.6887/2012
Judgment pronounced in
open Court, vide separate
judgment.
ORDER
The suit is dismissed.
No order as to costs.
Draw the decree accordingly.
XXIX Addl. City Civil Judge,
Bangalore City.