Bangalore District Court
Mr. R. Gangadharan S/O M. Ranganathan vs Sri. Narayanappa S/O Late ... on 22 September, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
O.S No.17068/2004
Dated this the 22nd day of September 2021
Plaintiff 1. Mr. R. Gangadharan S/o M. Ranganathan,
Aged about 30 years, R/o No.41,
3rd Cross, Jayanthi Nagar,
Horamavu Village, K.R Puram Hobli,
Bangalore-560 043.
(Rep by Sri.A.R.Advocate)
V/S
Defendants 1. Sri. Narayanappa S/o Late Venkataswamappa,
@ Chikka Abbaiah, Aged about 50 years,
2. Sri. Nagaraj S/o Late Venkataswamappa
@ Chikka Abbaiah, Aged about 45 years,
Since dead by legal representative
2(a) Smt. Shashikala W/o Late C. Nagarajappa,
Aged about 47 years,
Residing at Horamavu Village & Post,
Near Mariyamma Temple Street,
K.R Puram Hobli, Bangalore East Taluk,
Bangalore-560 043.
2
Judgment O.S.No.17068/2004
3. Sri. Jayaram S/o Late Venkataswamapppa
@ Chikka Abbaiah, Aged about 40 years,
Def No.1 to 3 residing at: Horamavu Village,
K.R Puram Hobli, Bangalore-560 043.
Smt. Madireddy Sripadmavathi,
4.
W/o Sri. Jagadish, Aged about 36 years,
R/o No.5, Scientist Hostel,
C.V. Raman Nagar, DRDO Township,
Bangalore-560 093.
5. Sri. Y.N. Konda Reddy S/o Narayana Reddy,
Aged about 42 years, R/o No.83,
Yerandahalli, Hennagara Post,
Anekal Taluk, Bangalore-562106.
(Rep by Defendant No.1 to 3 Sri.PSN Advocate,
Defendant No.5-Sri. MRS Advocate, Defendant No.4-Exparte)
Date of Institution of the suit 19/11/2004
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for injunction, Permanent Injunction
etc.)
Date of the commencement of recording of
11/10/2006
the Evidence
Date on which the Judgment was
22/09/2021
pronounce
Year/s Month/s Day/s
Total duration 16 10 03
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru
3
Judgment O.S.No.17068/2004
:JUDGMENT:
The plaintiff filed suit against the defendants for permanent injunction.
2. The brief facts of plaint averments is as under:
The plaintiff submits that he is absolute owner of the suit schedule property mentioned below:-
:SUIT SCHEDULE PROPERTY:
All that piece and parcel of residential premises bearing Western portion of Site No.41 formed in the Northern portion of land in Sy.No.81/2 of Horamavu Village, in house list katha No.0135/4, K.R Puram Hobli, Bangalore South Taluk, measuring East to West 15 feet, North to South 36 + (36.6)/2 feet total area 543.7 sq.ft.
bounded by East: Remaining portion of premises No.41 belongs to S. Thangarani, West: House No.42, North:
Road, South: Private property.4
Judgment O.S.No.17068/2004
3. The plaintiff further submits that he purchased the suit schedule property from T.V.Krishnakumari under registered sale deed on 01/08/2001. The defendants No.1 to 3 were original owners of the schedule site No.41. The defendants No.1 to 3 through their power of attorney holder Madireddy S Padmavathy/ defendant No.4 sold the schedule property in Site No.41 his vendor T.V. Krishnakumari under registered sale deed on 13/01/1992 for sale consideration as stated in the said sale deed.
He has purchased western portion of site No.41 from T.V.Krishnakumari his vendor and registered khatha in the village Panchayat in his name and khatha extract in form No.10 issued by Horamavu Village Panchayat. He has constructed house on suit schedule site as per the plan and KEB issued consumer card number to him allotting RR number and he is residing therein along with his family members ever since it was constructed in the year 2002.
5
Judgment O.S.No.17068/2004
4. The plaintiff further submits that the defendants No.1 to 3 were original owners of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli. During the year 1991 defendants No.1 to 3 formed layout of house sites in the Northern portion of their land in Sy.No.81/2 with total number of 47 sites and offered to sell to intending purchasers of the sites thus formed. The defendants No.1 to 3 appointed defendant No.4 as Power of Attorney Holder to transact with the site purchasers and also got house list khatha numbers allotted to the sites formed in this layout by the Horamavu Village Panchayat. The schedule property site No.20 was assigned with House list No.35/4. In the northern portion of the survey No.81/2 to an extent of 1 acre 24 guntas the defendants No.1 to 3 formed the residential layout with 47 sites and it was bounded by North-Land in Sy.No.81/1 belongs to Yamanna, East-land in Sy.No.84 belongs to Balaji Dasappa, West- Jayanthi grama, hamlet of Horamavu Village, and South- land (sold) belongs to defendant No.4 Padmavathi in the same 6 Judgment O.S.No.17068/2004 Sy.No.81/2. He and many others purchased sites in layout under registered sale deed from defendants No.1 to 3 and all 47 sites were thus sold to different purchasers during the year 1992. The defendants No.1 to 3 did not retain any right or title over the northern portion of land in Sy.No.81/2 wherein sites were formed. Thus since 1992 defendants No.1 to 3 ceased to be the owners of the land wherein the said layout was formed.
5. The plaintiff submits that in the year 2003 he constructed residential building on the schedule site No.41 after obtaining building licence from the Horamavu Village Panchayat authority and ever since he along with his family members is peaceful possession and enjoyment of the schedule property. This being the state of affairs on 21/10/2004 the defendant No.5 along with his gang and henchmen appeared in the layout and claimed that he has purchased land wherein the layout is formed under registered sale deed on 01/03/2004 to extent of 1 acre 7 guntas agricultural land from defendants No.1 to 3 and their children and 7 Judgment O.S.No.17068/2004 the defendant No.5 threatened him and other owners of sites and houses in the layout to give up their properties or they will be forcibly evicted from their properties.
6. The plaintiff further submits that he and other owners of the sites are tried to contact the defendants No.1 to 3 and the defendant No.4 on this untenable claim of the defendant No.5, but they are avoiding to answer him and other site owners in the layout. Hence it is clear that the defendants No.1 to 5 in collusion with each other fraudulently registered the sale deed now the defendant No.5 claimed illegally to knock off and grab his and other site owners properties in the layout and for making unlawful gain for themselves.
7. The plaintiff further submits that after formation of the said layout in their land in question in Sy.No.81/2 and sale of the sites under registered sale deeds to the purchasers and after putting the purchasers in possession of their respective sites, the defendants 8 Judgment O.S.No.17068/2004 No.1 to 3 had no more rights, title or interest remaining with them in respect of the land wherein the layout were formed to convey to the defendant No.5 under the sale deed dated 01/03/2004. That the alleged sale deed of the defendant No.5 in respect of the same land wherein the layout as formed is fraudulent instrument and it does not confer any title to the defendant No.5 in respect of land wherein the layout was formed and the said sale deed claimed by the defendant No.5 is nullity and it does not affect in any manner the lawful title, rights and interest of the plaintiff on the suit schedule property. The defendant No.5 and his henchmen came to the layout on 21/10/2004 and threatened him and other owners of forceful interference and eviction. He and other site owners filed police complaint in the Ramamurthy Nagar Police Station against the threats of defendants. The defendant No.5 also lodged caveat in Civil Judge Jr. Division court, Bangalore, which court has no jurisdiction over the area, against him and few other owners. He 9 Judgment O.S.No.17068/2004 and other site owners in the layout are living under the threat of forceful eviction by the defendant No.5 and his supporters.
8. The plaintiff further submits that the he has taken housing loan from Bank, Housing Finance Ltd, Trinity Circle Branch, Bangalore and the original title deeds are in the bank. He has got legal right to peaceful possession and enjoyment of the suit property. The defendants No.1 to 5 by creating fraudulent title deeds and with manipulated revenue records made on the strength of such fraudulent title deeds are trying to interfere with his peaceful possession and enjoyment of the schedule property. The defendant No.5 with his men and money power is physically interfering and threatening him of dispossession of his property.
9. The plaintiff further submits that the cause of action for this suit arose on 21/10/2004 when the defendant No.5 came to his property and threatened to interfere with his peaceful possession and enjoyment of the suit property. The plaintiff prays to decree 10 Judgment O.S.No.17068/2004 the suit for permanent injunction restraining the defendants, their heirs, successors, agent from interfering with his peaceful possession and enjoyment of suit schedule property and prays to award costs of suit.
10. The defendants No.1 to 3 have appeared and filed their written statement. The defendants No.1 to 3 denied entire plaint allegations and also denied ownership of the plaintiff over the suit schedule property. The defendants No.1 to 3 submit that the suit of plaintiff for the relief of bare injunction without seeking declaratory is not maintainable either in law or on facts. The suit filed by the plaintiff is frivolous, vexatious, mischievous in nature and plaintiff had suppressed material facts and misrepresented the facts. There is no cause of action to file suit, court fee paid is in sufficient.
11. The defendants No.1 to 3 alleged that suit schedule property is not at all in existence as it is described in the schedule to the 11 Judgment O.S.No.17068/2004 plaint. The defendants No.1 to 3 further submits that out of total extent of 3 acre 17 guntas of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli, Bangalore South Taluk presently Bangalore East Taluk, they have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma W/o Dasappa and another extent of 30 guntas of land in favour of Padmavathi Madareddy/ defendant No.4 and retained 1 Acre 7 Guntas of land in the said Sy.No.81/2 of Horamavu Village. The defendants No.1 to 3 submits that they were the title holders in possession and enjoyment of the extent of 1 Acre 7 guntas of land Sy.No.81/2 of Horamavu Village and they have sold the said extent of the land in favour of Y.N. Kondareddy. i.e the defendant No.5 under registered sale deed on 01/03/2004 and rectification deed dated 29/03/2004. That ever since the date of sale of the land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 of Horamavu Village, the defendant No.5 is in possession and enjoyment of the said extent of the land. They have sold only an extent of 30 guntas of 12 Judgment O.S.No.17068/2004 land in Sy.No.81/2 of Horamavu Village in favour of Padmavathi Madareddy/defendant No.4 and have not entered in to any other transaction with the defendant No.4 except for the sale deed referred to above, which has been executed by them. That no sites have been formed in the land measuring an extent of 1 Acre 7 Guntas, which has been sold in favour of the defendant No.5.
12. The defendants No.1 to 3 denied the alleged Site No.41 which is said to have been purchased by the plaintiff under the registered sale deed dated 01/08/2001 has been formed in Sy.No.81/2 of Horamavu Village from its vendor T.V. Krishnakumari, who had purchased the same from the defendant No.4 as the alleged G.P.A holder of the defendants No.1 to 3. The defendants No.1 to 3 submits that the alleged GPA said to have been executed by defendants No.1 to 3 in favour of defendant No.4 which has been obtained by the defendant No.4 from the defendants No.1 to 3 by misrepresentation and by playing fraud upon defendants No.1 to 3. Thus no power has been confirmed 13 Judgment O.S.No.17068/2004 upon defendant No.4 under the alleged General Power of Attorney. In fact the defendants No.1 to 3 did not own and possess the suit schedule site and hence the question of executing General Power of Attorney in favour of the defendant No.4 does not arise. The alleged layout plan said to have been furnished by defendants No.1 to 4 to plaintiff at the time of entering in the alleged sale agreement is got up and concocted layout plan. The defendants No.1 to 3 have denied the entire allegations of plaint paras No.2 to 14. The defendants No.1 to 3 submits they have sold the land measuring an extent of 1 Acre 7 Guntas in favour of the defendant No.5 under the registered sale deed dated 01/03/2004. The defendants No.1 to 3 prays to dismiss the suit with cost.
13. That inspite of service of summons defendant No.4 not appeared and placed exparte. The defendant No.5 appeared and filed his written statement. The defendant No.5 denied ownership, possession and enjoyment of the plaintiff in the suit schedule 14 Judgment O.S.No.17068/2004 property. The defendant No.5 submits that the plaintiff filed suit for relief of permanent injunction in respect of the alleged non existence of suit schedule property is not sustainable either in law of on facts. That without seeking declaratory relief of title and consequential reliefs the suit filed for bare injunction is not maintainable. The defendant No.5 submits that description of the property, its extent and the boundaries mentioned in the schedule to the plaint are not correct. The plaintiff is making an attempts to lay claim for portion in the land measuring an extent of 1 Acres 7 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk (Previously Bangalore South Taluk) under the guise of having purchased site bearing list number under the registered sale deed. There cannot be site bearing house list number in agricultural land. The house list number indicates that the property is Gramatana property. However the plaintiff is trying to lay claim for portion in the land measuring an extent of 1 Acre 7 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram 15 Judgment O.S.No.17068/2004 Hobli, Bangalore South taluk and presently Bangalore East Taluk. The plaintiff has to establish that there is site bearing the house list number with its extent & boundaries as mentioned in the sale deed & that said site is within the Gramatana limits & only then plaintiff can claiming right over suit schedule property.
14. The defendant No.5 further submits that the court fee paid by plaintiff is insufficient. There is no cause of action for this suit, hence plaintiff is not entitle for the relief of permanent injunction. The defendants No.1 to 3 were title holders in possession and enjoyment of the land measuring an extent of land 3 Acre 17 Guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk and they have sold an extent of 1 Acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour of defendant No.4/Padmavathi Madareddy and they have retained land measuring 1 Acre 07 guntas and they were in possession and enjoyment of the said extent 1 Acre 7 guntas of land as absolute owners. Thereafter defendants No.1 to 3 have 16 Judgment O.S.No.17068/2004 sold said extent of 1 Acre 07 guntas in Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk in his favour under registered sale deed on 03/01/2004 and by rectification deed on 29/03/2004. Since from the date of purchase 01/03/2004 possession of land has been delivered to him and he is in possession of said extent of 1 Acre 7 guntas of land in Sy.No.81/2 of Horamavu Village, K.R Puram, Bangalore East Taluk as an absolute owner and khata of property mutated in his name as per M.R No.48/03-04 and entered his name in pahanies in respect of aforesaid land. Then he approached survey department and said land in Sy.No.81/2 of Horamavu village and surveyed and phoded the land measuring an extent of 1 Acre 07 guntas, same has been assigned with new Sy.No.81/3 and said land has not been converted for non-agricultural residential purposes and it remains as an agricultural land.
15. The defendant No.5 denied the entire allegations of plaint paras No.2 to 14. The defendant No.5 submits that the document 17 Judgment O.S.No.17068/2004 upon which plaintiff is relying in support of his title and possession on schedule property do not in any manner relate to land in Sy.No.81/3 (old Sy.No.81/2) of Horamavu Village, K.R Puram Hobli, Bangalore East Taluk, hence the plaintiff can't claim any right of possession over any portion in said land. The defendant No.5 prays to dismiss the suit of plaintiff with costs.
16. On the basis of above pleadings following Issues are under:
:ISSUES:
(1) Whether the plaintiff proves that his lawful possession and enjoyment over the suit schedule property as on the date of the suit?
(2) Whether the plaintiff proves the alleged obstructions?
(3) Whether the plaintiff is entitled to the reliefs claimed?
(4) What order?18
Judgment O.S.No.17068/2004
17. The plaintiff examined as PW.1 and marked ExP1 to ExP8. The defendant No.1 examined as DW.1 and defendant No.5 examined as DW.2 and ExD1 to ExD31.
18. The plaintiff counsel argued. The defendants No.1 to 3 counsel argued. The defendant No.5 counsel argued and filed written argument with citations. Perused the records.
19. My findings to above Issues are as under Issue No.1) In Negative Issue No.2) In Negative Issue No.3) In Negative Issue No.4) See final order for following :REASONS:
20. Issues No.1 to 3:
The plaintiff R. Gangadharan S/o M. Ranganathan filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that he is absolute owner in possession and enjoyment 19 Judgment O.S.No.17068/2004 of suit schedule property. He has purchased ½ portion of Site No.41 in schedule property from Krishnakumari under registered sale deed on 01/08/2001. The defendants No.1 to 3 were earlier original owners of the schedule site No.41, and they have sold said property through their Attorney holder defendant No.4/Madi Reddy S. Padmavathy to his vendor under registered sale deed dated 13/01/1992 for sale consideration as stated in the sale deed. After purchase of the ½ portion of site No.41 from his vendor, he got changed khata in his name in the Horamavu Village Panchayat and Khata extract in form No.10 is issued by Horamavu Village Panchayat. He paid the tax and obtained the plan from Village Panchayat and he has constructed house in the schedule site as per the plan and he is residing there along with his family. He is in peaceful possession and enjoyment of his suit schedule house ever since it was constructed in the year 2002.
21. The PW.1 further deposed evidence that the defendants No.1 to 3 were original owners of the land in Sy.No.81/2 of Horamavu 20 Judgment O.S.No.17068/2004 Village, K.R. Puram Hobli. During the year 1991 they formed layout of sites in the Northern portion of their land in Sy.No.81/2 to an extent of 1 acres 24 Guntas with total number of 47 sites and got house list khata allotted to the sites and offered to sell to intending purchasers through their power of Attorney holder defendant No.4. The schedule site was allotted with house list No.135/4. These sites were bounded by North- land in Sy.No.81/1 belonging to Yamanna, East-land in Sy.No.84 belonging to Baluki Dasappa, West- Jayanthi grama, hamlet of Horamavu Village, and South- land (now sold) belonging to defendant No.4 in the same Sy.No.81/2. All the 47 sites were sold to different purchasers including him in the year 1992. The defendants No.1 to 3 did not retain any right or title over the northern portion of the land in Sy.No.81/2 wherein sites were formed and defendants ceased to be the owners of the land wherein the said layout was formed.
Like him, many others have purchased sites from defendants No.1 to 3 and constructed their houses in their respective sites by 21 Judgment O.S.No.17068/2004 spending their hard earned money as well as by availing house construction loans from banks and financial institutions. He and other purchasers are in peaceful possession of the respective sites with the houses on them. That for the past thirteen years there was no agricultural operation on the land in Sy.No.81/2 where in the layout is formed and it is fully developed residential layout, and Horamavu Layout Panchayat Authority has approved the residential layout by issuing House list numbers and House building licence to the site owners.
22. The PW.1 further deposed evidence that this being the state of the affairs on 21/10/2004 the defendant No.5 with his gang and henchmen appeared in the layout and claimed that he has purchased the land as agricultural land, wherein the layout was formed by the defendants No.1 to 3 about 13 years ago, and sold the said sites to him and other purchasers. The defendant No.5 claims that he has purchased the land wherein the layout was formed under registered sale deed on 01/03/2004 to an extent 22 Judgment O.S.No.17068/2004 of 1 Acre 7 Guntas agricultural land from defendants No.1 to 3 and their children. The defendant No.5 and his henchmen threatened him and other owners of sites and houses in the layout to give up their properties or else they will forcibly evict them from their properties, then he and other site owners have filed police complaint in the Ramamurthy Nagar Police Station. He along with site owners tried to contact defendants No.1 to 4 to find out about the untenable claim of the defendant No.5 over their properties, but the defendants No.1 to 4 were avoiding answering their queries. Hence it is clear to him and other owners of the sites in the layout that defendants No.1 to 5 in collusion with each other fraudulently engineered and registered the sale deed now claimed by the defendant No.5 to illegally knock off and grab his property and properties of others in the layout and for making unlawful gain for themselves.
23. The PW.1 further deposed evidence that after formation of sites in their land in Sy.No.81/2 and sale of sites under registered 23 Judgment O.S.No.17068/2004 sale deeds to him and other purchasers for valuable consideration and putting the purchasers in possession of the properties, defendants No.1 to 3 had no more rights, title or interest remaining with them in respect of the land to convey to the defendant No.5 under the sale deed on 01/03/2004. It is fraudulent instrument and the same does not confer any title to the defendant No.5 in respect of the very same land wherein the layout was formed. The sale deed claimed by the defendant No.5 is nullity and it does not affect in any manner my lawful title, right and interest on the suit schedule property.
24. The PW.1 further deposed that the defendant No.5 also lodged caveat in Civil Judge Jr.Dn court, Bangalore, which court has no jurisdiction over the area, against him and other site owners when the property in question is situated within Bangalore Metropolitan limits within the jurisdiction of this court. He has obtained housing loan and the original title deeds of his property is in the said Bank. He and other site owners in the 24 Judgment O.S.No.17068/2004 layout are living under the threat of forceful eviction by the defendant No.5 and his supporters, who with his money and muscle power is physically interfering and threatening him from dispossession of his property. The defendants No.1 to 5 by creating fraudulent title deeds and with manipulated revenue records made on the strength of such fraudulent title deeds are trying to interfere with his peaceful possession and enjoyment of schedule property. The PW.1 prays to decree the suit as prayed in the plaint. In support of oral evidence PW.1 marked documents ExP1 to ExP8.
25. The defendant No.1/Narayanappa S/o Venkataswamappa @ Chikkabbaiah filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that the defendants No.2 & 3 are his younger brothers duly authorized him to swear to this affidavit. The DW.1 deposed evidence that plaintiff filed suit for permanent injunction in respect of non existed alleged suit schedule property, the description of the property, boundaries, 25 Judgment O.S.No.17068/2004 measurement in the plaint schedule is imaginary and not in existence. The land bearing Sy.No.81/2 of Horamavu Village, K.R Puram Hobli, Bangalore South Taluk, (Presently Bangalore East Taluk) totally measuring 3 acres 17 Guntas originally belongs to their grandmother Venkatamma, she executed registered WILL on 13/06/1988 in favour of him and his two brothers namely Nagaraja, Jayaram and his sister Pullamma. His grandmother sold 1 Acre 20 guntas in favour of Munivenkatamma on southern portion of Sy.No.81/2 and retained the remaining land, on her death they acquired right, title, interest and possession as per her last WILL executed in their favor and they became the absolute owners of land measuring 1 acre 37 guntas including kharab of 6 Guntas in the said Survey number, which is bounded by East: land of Baluki Dasappa, West:
Jayanthi Village, North: land of Yamanna and South: remaining portion in Sy.No.81/2 sold to Munivenkatamma. The DW.1 further deposed that he and defendants No.2 & 3 sold Southern 26 Judgment O.S.No.17068/2004 portion of Sy.No.81/2 measuring 30 guntas in favour of Padmavathi Madi Reddy and retained 1 acre 13 Guntas including 6 guntas of kharab which is Northern portion of Sy.No.81/2. He and defendants No.2 and 3 are agriculturist and for their urgent family necessities they have sold the said land measuring 1 acre 13 guntas including 6 guntas kharab in Sy.No.81/2 of Horamavu Village in favour of defendant No.5/Y.N.Kondareddy in the year 2004, due to mistake crypt in mentioning on boundaries under the aforesaid sale deed, they have executed rectification deed immediately, after the purchase Y.N.Kondareddy became absolute owner in possession of land and said land and same is bounded by East: land of Balki Dasappa, West: Jayanthi Village, North:
land of Yamanna and South: land of Padamavathi Madireddy.
26. The DW.1 further deposed evidence that pursuant to the registered sale deed in favour of Y.N.Kondareddy, he continued in lawful possession and enjoyment of the said land and the said land sub phoded as Sy.No.81/3 measuring 1 acre 7 Guntas, the 27 Judgment O.S.No.17068/2004 mutation and RTC entered to his name as owner in possession. The defendants No.1 to 3 apart from selling the said land Y.N.Kondareddy never sold to anybody and never parted its possession till they sold in favour of Y.N.Kondareddy. The defendants No.1 to 3 are not benefited with education and not acquainted with worldly affairs, he know only put his signature in Kannada not knowing reading and writing any of the languages. The false allegation of the plaintiffs that defendants No.1 to 3 have sold alleged sites bearing No.41 in alleged house list Katha No.135/4 of Horamavu village, K.R.Puram Hobli measuring 36.6 X 30 feet in favour of T.K. Krishnakumari in the year 1992, she in turn sold to the plaintiff during the year 2001 is utter false. They have no such Katha property or sites at the alleged Horamavu village limits, the allegations of plaintiffs that layout of sites formed in their land in Sy.No.81/2 of Horamavu village out of 1 acre 24 Guntas is utter false, after alienation they have not possessed 1 acre 24 Guntas either to form alleged layout of 28 Judgment O.S.No.17068/2004 sites, in fact they never approached Horamavu village Panchayath for obtaining Katha in their names, the alleged house list Katha bearing No.135/4 is bogus, fictitious Katha numbers, fraudulently concocted and created by the plaintiffs to suit their false convenience and attribute claims in our alienated agricultural land in Sy.No.81/2. The plaintiffs have concocted and got up documents styled as sale deeds in respect of non exist property by misusing the bogus and concocted documents, the plaintiffs attempted to gain, interest in their alienated properties belongs to Y.N. Kondareddy by imaginary cause filed the above suit.
27. The DW.1 further deposed that till they sold land measuring 1 acre 7 Guntas in Sy.No.81/2 in favour of Y.N. Kondareddy, the said land continued to be revenue assessed land entered in the RTC records maintained by the revenue department and continued to be agricultural cultivable lands, they never obtained any conversion for non agricultural residential purposes and 29 Judgment O.S.No.17068/2004 never formed any illegal layout in the said land, they have not sold any piece or inch to anybody. The alleged sale deed of plaintiffs not reflect Survey number in which the alleged sites are formed, he deny the plaint allegations as false and baseless. That after alienating their land in Sy.No.81/2 measuring 1 acre 7 Guntas in favour of Y.N.Kondareddy they have no interest in the said land, the alleged cause of action is false and imaginary. The DW.1 prays to dismiss the suit of plaintiff with exemplary cost.
28. The defendant No.5 Y.N.Kondareddy S/o Narayana Reddy filed his affidavit in lieu of examination in chief as DW.2 and deposed evidence that the plaintiff filed the suit against defendants for the reliefs of permanent injunction in respect of residential premises bearing western portion of site No.41 formed in northern portion of land in Sy.No.81/2 of Horamavu Village in house list katha No.135/4, K.R.Puram Hobli, Bangalore South Taluk measuring East to West:15 feet and North to South:
36+36.6/2 with boundaries i.e., the suit schedule property. The 30 Judgment O.S.No.17068/2004 suit filed by plaintiff for the reliefs of permanent injunction in respect of the alleged non existence of suit schedule property is not sustainable either in law or on facts and as such suit has to be dismissed. That without seeking for the declaratory relief of title mere suit for bare injunction is not maintainable in law and hence the plaintiffs are not entitle for the relief of permanent injunction. The plaintiff had suppressed material facts and misrepresented the facts filed suit for the equitable remedy of temporary injunction and approached court with unclean hands and as such suit has to be dismissed. The description of the plaint schedule property extent and boundaries mentioned in the plaint schedule is not at all correct. The boundaries and extent and property as stated in the plaint and the schedule as not at all pertaining to old Sy.No.81/2 and New No.81/3 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk.
29. The DW.2 further deposed evidence that he is bonafide purchaser of agricultural land bearing old Sy.No.81/2 and New 31 Judgment O.S.No.17068/2004 No.81/3 measuring 1 acre 7 guntas of Horamavu village for valuable consideration from rightful owners defendants No.1 to 3 after enquiry and verifying the title of his vendor and comes to conclusion that the vendors having marketable title to alienate said property and purchased under registered sale deed on 01/03/2004 for valuable consideration. Therefore his right, title interest and possession have to be protected under law. The plaintiff is making attempts to lay claim in portion of land measuring to an extent of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village K.R.Puram Hobli, Bangalore East Taluk under the guise of having purchased site bearing house list number the registered sale deed. The suit schedule property is nothing to do with land bearing old Sy.No.81/2 and New Sy.No.81/3 of Horamavu village, alleged description of plaint schedule, its boundaries and sale deed referred to in the plaint is in respect of property situated in Gramatana of Horamavu not at all pertaining to the agricultural land. There cannot be site bearing House list 32 Judgment O.S.No.17068/2004 number in agricultural land. The house list number indicates that property is Gramatana property. However plaintiff is trying to lay to claim for the portion in the land bearing an extent of 1 acre 7 guntas in old survey No.81/2 of Horamavu village, K.R.Puram Hobli, Bangalore South Taluk, and presently Bangalore East Taluk and contentions taken by the plaintiff in pleadings and in evidence affidavit, the documents relayed upon by him are different to each other and therefore the plaintiff is not entitle for any relief as sought for in plaint claiming the suit property in the portion of land in Sy.No.81/2 of Horamavu village. The plaintiff has to establish that there is site bearing house list No. with its extent and boundaries as mentioned in the sale deed and said site is within the Gramatana limits and then only the plaintiff can claim right over the suit schedule property. The plaintiff failed to establish the property mentioned in the sale deed and also in the plaint schedule and as such suit has to be dismissed. The plaintiff is not having title and possession to the property described in the 33 Judgment O.S.No.17068/2004 plaint schedule and as such the plaintiff cannot value the site at Rs.1000/- under section 26(C) of KCF and SV Act 1956. The plaintiff has to value the suit on the market value of suit property. The vendor of plaintiff has no manner of right title interest or possession over the suit schedule property and as such plaintiff does not derive any right, title or possession. The document produced by plaintiff are all concocted, created and got up documents. The documents are not at all existence in the Horamavu village panchayath. The vendor of plaintiff does not find place in the Horamavu village Panchayath. On the strength of the created and concocted documents false suit came to be filed against him on non-existed the suit schedule property. There is no cause of action for the suit and plaintiff is not entitle for permanent injunction for want of cause of action. The defendants No.1 to 3 are title holders and in possession and enjoyment of land measuring to an extent of 3 acres 17 guntas in Sy.No.81/2 of Horamavu Vilalge, K.R Puram Hobli, Bengalore South Taluk and 34 Judgment O.S.No.17068/2004 they have sold an extent of 1 acre 20 guntas in favour of Munivenkatamma and an extent of 30 guntas in favour Padmavathi Madireddy/defendant No.4 and retained land measuring 1 acre 7 guntas and they were in possession and enjoyment of 1 acre 7 guntas of land as absolute owners.
30. The DW.2 further deposed evidence that defendants No.1 to 3 and their children have sold the said 1 acre 7 guntas in Sy.No.81/2 of Horamavu Village in his favour under registered sale deed on 01/03/2004 for valuable consideration. The Vendors have noticed that there is some discrepancy in the boundaries and therefore they have executed rectification deed on 29/03/2004. That ever since the date of purchase he has been in possession and enjoyment of 1 acre 7 guntas of land in Sy.No.81/2 of Horamavu Village by exercising his right of ownership and possession. That on the basis of his lawful ownership and possession the concerned revenue authorities have lawfully effected mutation in M.R No.48/2003-2004 and his name has 35 Judgment O.S.No.17068/2004 been entered in RTC and pahanies in respect of said property. Since the date of purchase he has been paying Kandayam in respect of the said property. That after purchase he approached the survey department to measure and fixed the boundaries in respect of Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu Village. The survey authorities surveyed and fixed boundaries in respect of said property to an extent of 1 acre 7 guntas and assigned with new Sy.No.81/3. That aforesaid extent of 1 acre 7 guntas in New Sy.No.81/3 (old Sy.No.81/2 of Horamavu Village has not been converted for non agricultural residential purposes and it remains as on agricultural land. Further his vendors have not at all formed any sites in the said land and sold it to any persons including the plaintiff at any point of time and remained as an agricultural land and revenue authorities lawfully entered his name in the revenue documents.
31. The DW.2 further deposed that the averments made in para No.2 of the plaint that under the registered sale dated 01/08/2001 36 Judgment O.S.No.17068/2004 the site No.41 alleged formed in Sy.No.81/2 of Horamavu village has been purchased by the plaintiff from his vendor T.V.Krishnakumari and vendor of plaintiff has purchased the said site from the defendants No.1 to 3 is false and alleged layout plan and documents of sale deeds GPA are got up, concocted and created for the purpose of filing this suit.
32. The DW.2 further deposed that the averments of plaint paras No.3 to 13 are all false. The DW.2 further deposed evidence that the documents upon which the plaintiff is relaying to the land in Sy.No.81/3 (Old sy.No.81/2) of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk and as such the plaintiff cannot claim any right or possession over any portion of land in Sy.No.81/3 (Old Sy.No.81/2) of Horamavu village, K.R.Puram Hobli. The defendants 1 to 3 have sold only an extent of 30 guntas of land in Sy.No.81/2 of Horamavu village in favour of Padmavathi Madireddy. The defendants No.1 to 3 have not entered into any other transactions with the defendant No.4 37 Judgment O.S.No.17068/2004 except the sale deed referred to above which has been executed by the defendants No.1 to 3. The defendants No.1 to 3 have not at all executed GPA in favour of the defendant No.4. No power has been confirmed upon the defendant No.4 under the alleged GPA. After sale by the defendants No.1 to 3 in his favour, they did not own and posses any land. The alleged layout plan is got up and concocted one. In the sale deed as well as schedule given in the plaint there is no mention that the suit schedule property is the portion of Sy.No.81/2 of Horamavu village. There are no records to show that suit schedule property comes within the jurisdiction of Horamavu village panchayath. The suit schedule property is not at all in existence. The plaintiff has produced number of documents. The documents produced are all village panchayath records are not at all pertaining to Sy.No.81/2 or 81/3 of Horamavu village. He applied before the Right to information under the RTI Act to furnish the documents received by plaintiff before the village panchayath authorities, BBMP authorities, 38 Judgment O.S.No.17068/2004 Tahsildar and other authorities. They have sent the information stating that the documents applied by his are not at all available in the said offices. The plaintiff trespassed into the portion of land bearing (Old Sy.No.81/2) measuring 1 acre 7 guntas and New No.81/3 of Horamavu village and got constructed building. In that regard he filed suit in OS.No.3483/2005 on the file of this court for the reliefs of declaration, mandatory injunction, possession and other reliefs. The said suit is filed not only against the plaintiffs but also others. The said suit is pending. The other allegations which are contrary to and inconsistence with written statement are false. The DW.2 prays to dismiss the suit with exemplary costs. In support of oral evidence the DW.2 marked documents ExD1 to ExD42.
33. The defendant No.5 counsel while arguing relied upon the decisions reported in 1) ILR 2005 KAR 884 2) AIR 1979 CaL 50,
3) AIR 1999 SC 1441, 4) AIR 1962 Madras 149, 5) ILR 2010 KAR 2996, 6) ILR 1998 KAR 1, 7) AIR 1990 Orissa 124, 8) ILR 39 Judgment O.S.No.17068/2004 1988 KAR 215, 9) ILR 2007 KAR 339. The relevant citations are discussed below.
ILR 2005 KAR 884 T.L.Nagendra Babu V/s Manohar Rao Pawar Suit for Declaration and Injunction requirement of evidence - Duty of the Court - Held - Unless the Court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted.
ILR 2007 KAR 339 Aralappa V/s Jagannath and others Specific Relief Act 1963-Section 34-Declaration of status or right-Discretion of Court-Held, In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of suit, relief of 40 Judgment O.S.No.17068/2004 permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property -When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable- Appeals are dismissed.
34. The burden is on the plaintiff to prove that he is absolute owner and in lawful possession and enjoyment of the suit property as on the date of suit and defendant caused interference to his possession and enjoyment over the suit schedule property. The defendants No.1 to 3 were original owners of land in Sy.No.81/2 of Horamavu Village, K.R. Puram Hobli during the year 1991, they formed layout of sites in northern portion of their land in Sy.No.81/2 to an extent of 1 acres 24 Guntas with total number of 47 sites and got House list Khatha allotted to the sites and offered to sell to intending purchasers through their power of Attorney holder defendant No.4. The schedule site No.41 was 41 Judgment O.S.No.17068/2004 allotted with house list No.135/4. He has purchased the Site No.41 in schedule property from the defendants No.1 to 3 through their GPA holder defendant No.4 for valuable consideration under registered sale deed on 01/08/2021 and since then he is in peaceful possession and enjoyment of suit property. He has constructed house in schedule site as per the plan and he is residing there along with his family since the year 2006. That for the past thirteen years there was no agricultural operation on the land in Sy.No.81/2 where the layout is formed and fully developed residential layout, Horamavu Panchayat Authority has approved the residential layout by issuing House list numbers and House building licence to the site owners. Now the defendants are causing obstruction to his possession and enjoyment over the suit schedule property.
35. The plaintiff examined as PW.1 as discussed above. In support of oral evidence the plaintiff/PW.1 marked ExP1 to ExP8. The ExP1 is encumbrance certificate for the period from 42 Judgment O.S.No.17068/2004 01/06/1989 to 31/03/2004, wherein there are entries regarding sale of Site No.41, khatha No.122/2 of Horamavu village by defendants No.1 to 3 through their GPA Sripadmavathi in favour of vendor of plaintiff T.V.Krishnakumari and then from said vendor to plaintiff. The ExP2 is copy of layout map. The ExP3 is demand register of site No.41 for the year 2004-2005, wherein name of plaintiff is appeared as owner and occupant of property. The ExP4 is receipt and ExP5 is sanctioned plan issued by village Panchayath, Horamavu village for construction of building in Site No.41 of Horamavu village, K.R.Puram Hobli to present plaintiff. The ExP6 and ExP7 are photographs marked as they belong to suit schedule property. The ExP8 is complaint copy filed by plaintiff to the Sub-Inspector of Ramamurthy Nagar police station alleging harassment to the residents by some miscreants.
36. On the contrary defendant No.1 examined as DW.1 as discussed above and he denied the allegation of the plaintiff that plaintiff is owner of suit schedule property and defendant No.1 43 Judgment O.S.No.17068/2004 contention that there is no existence of suit schedule property, description of property boundaries measurement mentioned in the plaint schedule is imaginary. The defendant No.1 contention that land bearing Sy.No.81/2 of Horamavu village, K.R. Puram hobli, Bengaluru South taluk (presently Bengaluru East Taluk) totally measuring 3 acres 17 guntas belongs to his grandmother Venkatamma and she was executed registered Will dated 13/06/1988 in his favour and his two brothers Nagaraja, Jayaram and sister Pullamma. His grandmother sold 1 acre 20 guntas in favour of Munivenkatamma on the southern portion of Sy.No.81/2 and retained remaining land, on her death they acquired right, title and possession of said portion as per the last Will executed in their favour and they became absolute owners of land measuring 1 acre 37 guntas including kharab of 6 guntas in the said survey number, which is bounded by East: land of Baluki Dasappa, West: Jayanthi Gram, North: land of Yamanna and South: the remaining portion in Sy.No.81/2 sold to 44 Judgment O.S.No.17068/2004 Munivenkatamma. The defendants No.1 to 3 are agriculturists and for their livelihood they have sold 1 acre 13 guntas including 6 guntas of kharab in Sy.No.81/2 of Horamavu village in favour of defendant No.5 Y.N. Kondareddy in the year 2004, due to mistake crypt in mentioning in boundaries under the sale deed, they have executed rectification deed immediately, after purchase Y.N. Kondareddy became absolute owner in possession of land sold by them and same was bounded by East:Land of Baluki Dasappa, West: Jayanthi Gram, North: Land of Yamanna and South: land of Padmavahi Madireddy. In pursuance of registered sale deed in favour of Y.N. Kondareddy he continued in possession of said land and afterwards the said land was sub phoded as Sy.No.81/3 and said Kondareddy is in possession and enjoyment of the said land and his name is appearing in revenue records i.e. RTC records maintained by the revenue department.
37. The defendant No.5 said Y.N. Kondareddy examined as DW.1 and he has also deposed the evidence as contended by 45 Judgment O.S.No.17068/2004 defendant No.1 as discussed above as he purchased the land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village from defendants No.1 to 3 afterwards it is given new number as Sy.No.81/3 of Horamavu village. The defendant No.5 also denied the ownership, title and possession of plaintiff over the suit schedule property and also submits there is no existence of suit schedule property within boundaries as contended by plaintiff. The defendant No.5 contention that plaintiff trespassed in the possession of land bearing Sy.No.81/2 measuring 1 acre 7 guntas and new Sy.No.81/3 of Horamavu and got constructed building and in this regard he filed suit in OS.No.3483/2005 on the file of this court for the relief of declaration and mandatory injunction, possession and other reliefs.
38. The defendant No.5/DW.2 in support of oral evidence marked ExD1 to ExD42. The ExD1 is certified copy of the plaint and ExD2 is certified copy of the written statement in OS.No.3483/2005 which is filed by present defendant No.5 Y.N. 46 Judgment O.S.No.17068/2004 Kondareddy against the defendant No.1 Narayanappa and others. The ExD3 is certified copy of the plaint and ExD4 is certified copy of written statement in OS.No.16322/2005 pending on the file of this court, which is filed by Renuka Vijayakumar & others against Narayanappa and others. The ExD5 is certified copy of sale deed dated 01/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 in respect of portion of agricultural dry land bearing Sy.No.81/2 measuring 1 Acre 7 Guntas + 6 Guntas Kharab situated at Horamavu village, K.R.Puram Hobli, Bangalore bounded by East:Baluki Dasappa's land, West, South: Baluki Dasappa's land, North: Padmavati's land. The ExD6 is certified copy of rectification deed dated:29/03/2004 executed by defendants No.1 and his wife and children, defendants No.2 and 3 in favour of defendant No.5 rectifying about boundaries mentioned in the sale deed dated.01/03/2003 towards West:
Jayanti Grama, Gomala land instead of land of Baluki Dasappa, 47 Judgment O.S.No.17068/2004 towards North:Vemanna's land instead of land of Padmavati's land, towards South: Padmavathi's land instead of Baluki Dasappa's land. The ExD7 is Mutation Register No.48 regarding change of khatha of Sy.No.81/2 measuring from 1 acre 07 guntas from defendant No.1 Narayanappa in favour of defendant No.5 Y.N.Kondareddy. The ExD8 is certified copy of record of right of land bearing Sy.No.81/2 to the extent of 1 Acres 7 Guntas of Horamavu village in the name of defendant No.5. The ExD9 is certified copy of Atlas map of Sy.No.81/2, ExD10 is certified copy of Hissa Tippani of Sy.No.81/2. The ExD11 is certified copy of form No.5 relating to Sy.No.81/2 of Horamavu village. The ExD12 is certified copy of the Karnataka revision settlement Aakaar bandh relating to Sy.No.81/2. In ExD13 four certified copies of record of rights relating to Sy.No.81/2 of Horamavu village are marked which are standing in the name of defendant No.5 Y.N.Kondareddy. The ExD14 is certified copy of encumbrance certificate for the period from 01/06/1989 to 48 Judgment O.S.No.17068/2004 06/062004, wherein there is entry regarding sale transaction of 1A-07Gs + 6 Guntas Kharab land between the defendants No.1 to 3 to defendant No.5.
39. The ExD15 is certified copy of endorsement issued by Horamavu Grama Panchayath on 15/12/2004 mentioning that relating to khatha No.122/1, 122/2, 129/3, 135/4 of Sy.No.81/2 and 81/3 there are no records standing in the name of Narayanappa, Nagaraju and Jayarama in their records. The ExD16 is typed in evidence and marked as certified copy of the sale deed dated 15/04/1972, but in the said document were mentioned are not properly seen and unable to read the document. Hence the said document is not discussed. In ExD17, 16 certified copies of endorsements issued by BBMP are marked as ExD17(1) to ExD17(16) those are issued by BBMP, Bengaluru on the application filed by Y.N. Kondareddy under RTI Act relating to information called in respect of house list Nos.122/1, 122/2, 135/4, 129/2, 129/3, site Nos.28, 29, 27, 26, 21, 41, 38, 39, 4, 5, 49 Judgment O.S.No.17068/2004 6, 7, 36, 44, 45 and 42 and the BBMP informed that relating to said sites in Sy.No.81/2, New No.81/3 of Hormavu village, there are no records in their office relating to layout plan, sanctioned plan in their office. In ExD18 three mutation registers are marked as ExD18 (1) to ExD18 (3) relating to transfer of Sy.No.81/2 measuring 1 acre 7 guntas from Narayanappa to Y.N. Kondareddy. The ExD19 is certified copy of Atlas relating to Sy.No.81/2, which is also not in readable condition. The ExD20 is certified copy of endorsement issued by Ramamurthy Nagar police station on the application of Y.N. Kondareddy. The ExD21 is certified copy of the information furnished by the Sub- Registrar, Banaswadi to Y.N. Kondareddy called under RTI Act. The ExD22 is certified copy of the endorsement issued by the Deputy Commissioner, Bengaluru to Y.N. Kondareddy to the information called by Y.N.Kondareddy about conversion of land bearing Sy.No.81/2 of Horamavu village for non-agricultural purpose and Deputy Commission furnished information that there 50 Judgment O.S.No.17068/2004 are no records in their office relating to the information called by Y.N. Kondareddy.
40. The ExD23 is certified copy of endorsement issued by Tahsildar, Bengaluru East Taluk informing that relating to the land bearing Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village, K.R. Puram hobli, Bengaluru there is no order of conversion for non agriculture. In ExD24 two certified copies of tax paid receipts are marked. The ExD25 is certified copy of application given to the Tahsildar by Y.N.Kondareddy for surveying the land and making phode in Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village. The ExD26 certified copy of sale deed dated:17/07/1991 discloses that Narayanappa S/o late Chikka Abbaiah, Nagaraj S/o late Chikka Abbaiah, and Jayaram S/o late Chikka Abbaiah i.e. defendants No.1 to 3 have sold 30 Gunatas in Sy.No.81/2 of Hormavu village, K.R.Puram Hobli, Bangalore South Taluk in favour of defendant No.4 Madireddy Sripadmavathi W/o Jagadish. The ExD27 is certified copy of 51 Judgment O.S.No.17068/2004 order sheet in OS.No.1208/04 of Prl. Civil Judge (Jr.Dn) Bengaluru Rural filed by Lazarus K against Kondareddy Y.N. and ExD28 is certified copy of order on I.A.1 in the said suit. The ExD29 is certified copy of survey sketch and ExD30 is certified copy of mahazar relating to Sy.No.81/3 of Horamavu village. The ExD31 is certified copy of endorsement issued by Assistant Commissioner, Bengaluru North taluk to Y.N. Kondareddy informing about non-filing of any case for purchase of land in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village in violation of Section 79 (a) and (b) of Karnataka Land Reforms Act. The ExD32 is information furnished by the Secretary, Hennagar Grama Panchayat to defendant No.5 relating information asked by defendant No.5 under RTI Act. The ExD33 is the Mysore Village Panchayats and Local Boards Act copy. The ExD34 is tax paid receipt.
41. The ExD35 is record of right of Sy.No.81/3 measuring 1A- 07Gs of Horamavu village, K.R.Puram Hobli, Bengaluru East 52 Judgment O.S.No.17068/2004 Taluk, wherein colon No.9 name of defendant No.5 is appeared as owner and possessor of the land for the year 2011-2012 and in column No.10 way of possession mentioned as purchase and MR.No.48/2003-2004 dt.07/07/2004. The ExD36 is MR.No.48/2003-2004 dt.07/07/2004, wherein there is entry regarding sale transaction of Sy.No.81/2 measuring 1A-07Gs of Horamavu village by defendant No.5 from defendant No.1, his wife and children and defendants No.2 and 3. The ExD37(1) & ExD37(2) are information furnished by the Sub-Registrar, Banaswadi to Y.N. Kondareddy called under RTI Act. The ExD38 is information furnished by Tahasildar Bengaluru East Taluk to Y.N.Kondareddy (defendant No.5), wherein the defendant No.5 called information under RTI Act to furnish order copy relating to conversion of land bearing Sy.No.81/2 and Sy.No.81/3 of Horamavu village, K.R.Puram Hobli, Bengaluru East Taluk and the Tahalsildar furnished information that there is no record of order available in their office. The ExD40 is information 53 Judgment O.S.No.17068/2004 furnished by the Assistant Revenue Officer, BBMP, Horamavu SubDivision on application of Y.N.Kondareddy under RTI Act that survey sketch, sanctioned plan of Site No.41, HLK135/4 of Horamavu village is not given for construction to Gangadhar S/o Ranganathan from BBMP and unauthorized construction is made by said Gangadhar S/o Ranganathan. The ExD41 is information furnished by the Assistant Executive Engineer, Sub-Division, Horamavu that Horamavu village is comes within jurisdiction of Bengaluru Bruhat Mahanagar Palike and ExD42 is its Gazette Notification.
42. The contention of plaintiff that he has purchased suit schedule property Site No.41 from Krishnakumari on 01/08/2001 and her vendor purchased suit property from defendants No.1 to 3 through their GPA holder defendant No.4 under registered sale deed on 13/01/1992. The plaintiff has produced and marked ExP1 to ExP8, out of those documents The ExP1 is encumbrance certificate for the period from 01/06/1989 to 31/03/2004, wherein 54 Judgment O.S.No.17068/2004 there are entries regarding sale of Site No.41, khatha No.122/2 of Horamavu villlage by defendants No.1 to 3 through their GPA Sripadmavathi in favour of vendor of plaintiff T.V.Krishnakumari and then from said vendor to plaintiff. The ExP2 layout plan, which is not signed and sealed by concerned authority, ExP3 DCB register, ExP4 is tax paid receipt, ExP5 is sanctioned plan. Further the plaintiff has not produced sale deed regarding purchase of suit property by him from T.V.Krishnakurmari and sale deed of her vendor purchased suit property from defendants No.1 to 3 through their GPA Sripadmavathi. Further plaintiff has not produced katha extract and katha certificate issued by BBMP to show that his name is appeared in the revenue records of BBMP. Further as per plaintiff the defendant No.1 to 3 are owners of Sy.No.81/2 of Horamavu village measuring to an extent of 1 acre 24 guntas of Horamavu village and they have formed 47 sites in the said land and offer to sell said sites to the intending purchasers through their Power of Attorney holder i.e. 55 Judgment O.S.No.17068/2004 defendant No.4. Accordingly his vendor purchased the suit schedule property from General Power of Attorney of the defendants No.1 to 3 by name Madireddy Sripadmavathi/ defendant No.4 on 13/01/1992 and in turn he purchased suit property from his vendor on 01/08/2001.
43. The defendant No.1 examined as DW.1 denied the execution of Power of Attorney in favour of defendant No.4 Madireddy Sripadmavathy and also denied regarding formation of 47 sites in 1 Acre 24 guntas in Sy.No.81/2 of Horamavu village and sold the sites to different purchasers. The defendant No.1 to 3 contention that they have sold 1 acre 7 guntas + 6 guntas pot kharab land to the defendant No.5 Y.N. Kondareddy on 01/03/2004.
44. The defendant No.5 examined as DW.2 deposed that he has purchased the land 1 acre 7 guntas + 6 Guntas pot kharab land in Sy.No.81/2 of Horamavu village from defendant No.1 to 3 Narayanappa and others and since then he possession and 56 Judgment O.S.No.17068/2004 enjoyment of said agricultural land. The defendant No.5 denied regarding formation of 47 site in Sy.No.82/1 measuring 1 Acre 24 Guntas of Hormavu. In support of his oral contention the DW.2 marked ExD5 certified copy of the sale deed dated 01/03/2004 regarding purchase of 1 Acre 13 Gunta in Sy.No.81/2 of Horamavu village by him from the defendants No.1 to 3 and also produced rectification deed about rectification of boundaries towards west, north, south in sale deed as per ExD6. Further as per ExD7 & Ex.D36 mutation register No.48/2003-04 katha of 1 acre 7 guntas in Sy.No.81/2 of Horamavu village transferred in the name of defendant No.5 from defendants No.1 to 3. Further as per ExD8 name of defendant No.5 is appeared in the record of rights of the land bearing Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village for the year 2004-05. The DW.2 has marked ExD9 Atlas, ExD10 Tippani, ExD11 form No.5, ExD12 Karnataka Revision Settlement Akaar Bandh relating to Sy.No.81/2 of Horamavu village and afterwards new number was 57 Judgment O.S.No.17068/2004 given as Sy.No.81/3. Further the ExD13 (1) to ExD13(4) and Ex.D35 are records of rights of the Sy.No.81/2 measuring 1 acre 7 guntas of Horamavu village in the year 2004-2005 till 2009- 2010, 2011-2012 discloses the name of defendant No.5 Y.N. Kondareddy as owner and cultivator of said land. Under the circumstances the burden is on plaintiff to prove that said land bearing Sy.No.81/2 to an extent of 1 acre 24 guntas of Horamavu village, the defendants No.1 to 3 formed 47 sites and sold to different purchasers through their GPA holder defendant No.4. But to prove said fact the plaintiff has not produced conversion order copy of said land measuring 1 acre 24 guntas in Sy.No.81/2 of Horamavu village for non-agricultural purpose issued by the competent authority along with layout plan, sketch of the said land and also house list numbers given to the said 47 sites by the concerned revenue authority. The plaintiff contended that to the suit property house list katha No.135/4 of Horamavu village was given. But to prove said fact, the plaintiff has not produced any 58 Judgment O.S.No.17068/2004 specific document. Further the plaintiff/PW.1 in his cross examination deposed evidence that "I have seen roads, drainages formed in the layout. But I have not seen approved layout plan. I have not verified Government records to satisfy as in which Sy.No spot is situated. I do not know in which Sy.No sites are formed". The PW.1 further deposed evidence that "It is true to suggest that Sy.No.81/2 measuring 3 Acres 23 Guntas belongs to defendant No.1 to 3. I do not know that total extent is 3 Acre 17 Guntas. I do not know that out of that 1 acre 20 guntas is sold to Dasappa. I do not know that 30 guntas is sold to 4th defendant. I do not know that remaining 1 acre 7 gunta is sold to 5th defendant". The PW.1 further deposed evidence that "I have not verified in which Sy.No my vendor got the property. It is not true to sugget that Sy.No.81/2 is 7 Kmtrs away from Horamavu village. In sale deed of my vendor there is no mention as to which Sy.No the property is situated". The PW.1 further deposed evidence that "I 59 Judgment O.S.No.17068/2004 have purchased the property from Krishnakumari in 2001. But I cannot say the date and month. I have not produced my sale deed. Krishnakumari had purchased from Narayanappa and his brothers. I do not know the date and year of the purchase by Krishnakumari". Therefore the evidence of PW.1 discloses that there is no approved layout of land bearing Sy.No.81/2 Hormavu village and he has not verified in which survey number suit property is formed. Where as in the plaint he contended that in Sy.No.81/2 of Horamavu village suit property is formed. To prove said contention the plaintiff has not produced any documents. The documents produced by the plaintiff DCB register sanctioned plan and encumbrance certificate are not sufficient to come to conclusion that the plaintiff is the owner and in possession of the suit schedule property as on date of suit. The defendants No.1 to 3 have denied the formation of sites in Sy.No.81/2 of Horamavu village and also title of the plaintiff over 60 Judgment O.S.No.17068/2004 the suit schedule property. Under the circumstances the suit of the plaintiff for bare injunction is not maintainable.
45. The DW 2 marked ExD17(1) endorsement discloses that house list No.122/1, 122/2, 135/4, 129/2, 129/3 relating to Sy.No.81/2 New Sy.81/3 of Horamavu village, the documents verified in office, but said documents are not found in the revenue records in the name of Naryanapappa, Nagaraju and Jayaram. Further ExD17(2) endorsement discloses that no sanction plan or layout plan relating to Site No.20, 29, 27, 28, 26, 21, 41, 38, 39, 4, 5, 6, 7, 36, 44, 45, 42 of Sy.No.81/2 new Sy.No.81/3 of Horamavu village are found in their records, and such documents are not in the name of Nagaraja, Narayanappa and Jayarama in their office records. In ExD17(3) the defendant No.5 called information regarding furnishing copies of khatas of Sites No.20, 29, 28, 27, 26, 37, 21, 41, 38, 4, 5, 6, 7, 36, 44 and 45, 42, 23 in katha Nos.122/2, 122/1, 135/4 of Horamavu village and the Revenue Officer furnished the information that Namuna No.9 and 61 Judgment O.S.No.17068/2004 10 of the said properties are not in the name of Nagaraju, Narayanappa and Jayarama. Further the ExD23 is endorsement issued by the Tahsildar, Bengaluru East Taluk mentioning in Sy.No.81/3 measuring 1 acre 7 guntas of Horamavu village there is no conversion of land. Therefore from these exhibits discussed above it is clear that the land bearing Sy.No.81/2 measuring an extent of 1 acre 07 guntas of Horamavu village not converted for agricultural purpose and no sites were formed in the said land. Further records of rights for the years 2004-2005 till 2009-2010, 2011-2012 marked by DW.2 at ExD8, ExD13(1) to ExD13(4) and Ex.D35 discloses the land measuring 1 acre 7 guntas in Sy.No.81/2 of Horamavu village in the name of defendant No.5 Y.N. Kondareddy is an agricultural land, hence at the time of filing suit by plaintiff in the year 2004 said land is agricultural land. That in the citation reported in ILR 2005 Karnataka 884 relied by the defendant No.5 counsel it is held that "Unless the Court is satisfied with regard to material details in the light of the 62 Judgment O.S.No.17068/2004 material evidence with regard to the identification of the property, no declaration and injunction can be granted." Further in the another citation reported in ILR 2007 Karnataka 339 relied by the defendant No.5 counsel it is held that "In a suit for declaration of ownership and permanent injunction, the plaintiff has to prove his title to the property and also his possession over the property on the date of the suit-Further held, when the plaintiff is not in possession of the property on the date of suit, relief of permanent injunction is not an appropriate consequential relief-The appropriate relief consequential to declaration of ownership would be recovery of possession of the property -When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable-Court below was justified in dismissing the suit as not maintainable-Appeals are dismissed". The both citation discussed above applies to the present case in hand, as in the present suit the plaintiff failed to prove his lawful ownership possession and enjoyment over the suit schedule property as on 63 Judgment O.S.No.17068/2004 date of suit, hence question of interference by the defendants in the said property does not arise. Hence plaintiff is not entitle for relief of permanent injunction against the defendants. The plaintiff failed to prove Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative.
46. Issue No.4:
In view of above discussion I proceed to pass the following:
:ORDER:
The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the stenographer, typed by him, then taken print out, corrected, signed and pronounced by me in the open court on this 22 nd day of September 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
:ANNEXURE:64
Judgment O.S.No.17068/2004 WITNESSES EXAMINED FOR THE PLAINTIFF PW.1: R. Gangadharan S/o M.Ranganathan DOCUMENTS MARKED FOR THE PLAINTIFF ExP1: Encumbrance Certificate ExP2: Copy of the layout ExP3: Demand Register Extract ExP4: Original tax paid receipt ExP5: Sanction plan ExP6 & 7: Photographs ExP8: Copy of the complaint WITNESSES EXAMINED FOR THE DEFENDANTS DW.1: Narayanappa S/o Late Venkataswamappa DW.2: Y.N.Kondareddy S/o Narayanreddy DOCUMENTS MARKED FOR THE DEFENDANTS ExD1: Certified copy of plaint in OS.No.3483/2005 ExD2: Certified copy of W.S in OS.No.3483/2005 ExD3: Certified copy of plaint in OS.No.16322/2005 ExD4: Certified copy of W.S in OS.No.16322/2005 ExD5: Certified copy of sale deed ExD6: Certified copy of Rectification deed ExD7: Certified copy of Mutation ExD8: Certified copy of RTC 65 Judgment O.S.No.17068/2004 ExD9: Certified copy of Atlas copy ExD10: Certified copy of Hissa Tippani copy ExD11: Certified copy of Form No.5 ExD12: Certified copy of Karnataka Revision Settlement Akhar Bandh ExD13(1 to 4): Certified copies of RTC ExD14: Certified copy of Encumbrance Certificate ExD15: Certified copy of Endorsement ExD16: Certified copy of Sale deed ExD17(1 to 6): Certified copies of endorsements ExD18(1 to 3) Certified copies of Mutation Register Extracts ExD19: Certified copy of Atlas ExD20: Certified copy of endorsement ExD21: Certified copy of RTI information by Sub-Registrar, Banaswadi ExD22: Certified copy of Endorsement ExD23: Certified copy of Endorsement ExD24(1 & 2): Certified copies tax paid receipts ExD25: Certified copy of Application given to Tahasildar ExD26: Certified copy of Sale deed ExD27: Certified copy of Order sheet in O.S.No.1208/2004 ExD28: Certified copy of Order on IA in OS.No.1208/2004 ExD29: Certified copy of Survey Sketch ExD30: Certified copy of Mahazar ExD31: Certified copy of Endorsement 66 Judgment O.S.No.17068/2004 ExD32: Certified copy of Endorsement ExD33: Certified copy of Mysore Village Panchayath and Local Boards Act ExD34: Tax paid receipt ExD35: RTC ExD36: Mutation copy ExD37(1 & 2): Certified copies endorsements ExD38: Certified copy of endorsement ExD39: Certified copy of the endorsement ExD40: Information furnished by the Assistant Revenue Officer, BBMP, Horamavu.
ExD41: Information furnished by the Assistant Executive Engineer, Sub Division, Horamavu.
ExD42: Gazette Notification.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.