Bangalore District Court
Prasanna Kumar B M vs Nagamma Math on 3 August, 2024
KABC010193872019
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-36)
DATED ON THIS THE 3rd DAY OF AUGUST 2024
Present: Sri.J.V.Kulkarni, B.Sc., L.L.B.,
XXXV Addl. City Civil & Sessions Judge, Bengaluru.
O.S.No.4379/2019
Plaintiff : B.M.Prasanna Kumar,
S/o.B.Markendaya Naidu,
Aged about 43 years,
R/at No.49, 2nd Main, Kaveri Nagar,
Banashankari 3rd Stage,
Bangalore-560 085.
(By Sri/Smt.S.G.P.K., Advocate)
-Vs-
Defendants : 1. Smt.Nagamma Math,
W/o.Late Nagayya Sangayya Math,
Aged about 73 years.
2. Smt.Kathuri Math,
W/o.Late Subodh Math,
Aged about 39 years.
3. Smt.Gayathri Math,
W/o.Late Sunil Math,
Aged about 38 years.
Defendants No.1 to 3 are
Residing at No.20, 2nd Cross,
Jai Maruthi Nagar, Nandini
2
Layout,Bengaluru-560 086.
(By Sri/Smt.B.N.P., Advocate)
Date of institution of the suit : 19-06-2019
Nature of the suit : Injunction
Date of commencement of : 23-01-2023
recording of the evidence
Date on which the judgment : 03-08-2024
was pronounced
Total duration : Years/s Month/s Day/s
04 01 24
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
The plaintiff has filed this suit for permanent injunction, restraining the defendants from interfering in the suit schedule property.
2. The facts necessary for disposal of the suit are briefly stated as follows:-
The plaintiff is tenant of the property vacant site bearing No.1128, 2nd block, Banashankari 6th stage, Bangalore, which is totally measuring 360 sq.mtrs together with all upper tenants 3 bounded on East : site No 1127, West : Site No.1128/A, North :
Road, South : C.A Site. This property is herein after referred as suit property for brevity.
The plaintiff contended that Smt.Pavithra is the absolute owner of the suit property. The plaintiff has taken the suit property on lease basis, under an Agreement of Lease, dated 31-05-2019, by paying Rs.5,00,000/- to the landlady Pavithra. The possession was delivered to the plaintiff in pursuance of the lease agreement.
The plaintiff contended that the landlady Pavithra has obtained Probate from City Civil Court, Bengaluru in P & SC 278/2017 pursuance to the Will dated 28-09-2007 executed by her father Late Nagaiah Sangaiah Math. The name of Pavithra was entered in the BBMP records, katha certificate is also issued by BBMP in the name of Pavithra. The plaintiff contended that he is in peaceful possession and enjoyment of the suit property, as a tenant and put up compound wall to the suit schedule property constructed two sheds for storing the building materials, as the plaintiff is Civil Contractor.
The plaintiff contended that he has also obtained electricity connection to the suit property by BESCOM. The defendants have no any kind of right, title or interest whatsoever over the suit property, illegally trespassed into the suit property on 15-06-2019 at 4 14.00 hours with the help of some rowdy elements and tried to interfere with the possession of the plaintiff. Therefore, the plaintiff has filed suit for permanent injunction against the defendants restraining them from his possession over the suit property.
3. Suit summons issued to the defendants, it was duly served upon them, they appeared through their counsel and filed the written statement.
In the written statement, the defendants are specifically denied the plaint averments in toto and they have also denied the ownership of landlady Pavithra over the suit property. The defendants contended that the alleged lease agreement has been executed by in violation interim order granted by this Court on 23-07-2018 in P & S.C. 298/2018. Therefore, the alleged lease deed void, invalid and inoperative.
The defendants contended that the suit property is absolutely owned and possessed by defendant No.3. Because, the suit property was bequeathed to husband of defendant No.3 under Will dated 6-12-2012 executed by Sri.Nagaiah Math. After the death of Nagaiah Math on 19-10-2008, the husband of defendant No.3 Sunil Math became absolute owner of the suit property. Sunil Math died 5 on 15-5-2010 leaving behind his wife Gayathri Math and his mother Smt.Nagamma Math as his legal heirs. Therefore, they are the absolute owners of the suit property. Hence, the alleged lease deed executed by Smt.Pavithra has no value in the eye of law.
The defendants contended that the suit property originally belongs to Nagaiah Sangaiah Math. He died on 19-10-2008 leaving behind his wife Nagamma Math who is defendant No.1 of this case. Subodh Math, Sunil Math and Mrs.Pavithra as his legal heirs. Subodh Math died on 31-05-2018leaving behind his wife the defendant No.2 as his legal heir. Sunil Math died on 15-10-2010 leaving behind his wife defendant No.3 and his son Master Sathvik Math as his legal heirs. Sunitha Math is the daughter of H.Nagaiah Math, she was predeceased him in the month of June 1993.
The defendants contended that Smt.Pavithra married against the wishes of late Nagaiah Sangaiah Math and the defendant No.1 because of which, all the ties with her are severed. The defendants contended that during the life time of Sri.Nagaiah Sangayya Math, the suit property was alloted by BDA to him, by virtue of allotment letter, dated 13-03-2002.
Subsequently, Nagaiah has availed loan of Rs.5,00,000/- from LIC Housing Finance Limited for purchase of suit property. 6 Thereafter, BDA has executed Sale deed on 30-06-2004 in favour of Nagaiah which was mortgaged to LIC Housing Finance Limited. The entire loan availed for acquiring the suit property was repaid by the husband of defendant No.3 and the title deeds of the suit property handed over to Sunil Math during his lifetime. Because of the said reason, Nagaiah Sangayya Math has executed a Will on 6-12-2002 bequeathing the suit property in favour of the husband of defendant No.3.
After the death of Nagaiah Sangaiah Math Sunil Math was in absolute possession and enjoyment of the suit property as per the Will dated 16-12-2002. After the death of Sunil Math, in the year 2010, the defendant No.3 and her son Master Satvik were put in absolute possession and enjoyment of the suit property as owners. Mrs.Pavithra who is the daughter of late Nagaiah Sangayya Math has filed P & S.C. 278/2017 before City Civil Judge, seeking for probate of a Will dated 28-09-2007 purported to be executed by late Nagaiah. She has not made any family members as party in the said probate proceedings by concealing the material facts, she got obtained order dated 11-04-2018, wherein the Will was probated.
The defendants have filed a petition seeking revocation of the probate in P & SC No.298/2018 at the time of filing of the written 7 statement, the said petition was pending. In the said petition, the defendants shall also obtained interim order restraining Pavithra from alienating or creating any kind of charge in the suit property and it was in force till 23-07-2018. In violation of the said order, Pavithra has executed alleged lease deed in favour of the plaintiff. Therefore, the said document is invalid and unenforceable. The defendants have categorically denied the plaint averments in toto and sought to dismiss the suit.
4. Based on the pleadings, my Predecessor in office has framed the following Issues:-
ISSUES 1 Whether the plaintiff proves that he is in possession of suit property based on a Lease Deed executed by Smt.Pavithra?
2. Whether plaintiff proves that the defendants are trying to interfere with his possession?
3. Whether plaintiff is entitled for the suit relief?
4. What order or decree?
5. The Power of Attorney of the plaintiff by name L.Krishna S/o.Nagamaiah V.C., examined as P.W.1. Exs.P.1 to P.9 were 8 marked on behalf of the plaintiff. He closed his side. The defendant No.3 examined as D.W.1. Exs.P.D.1 to D.17 were marked on behalf of the defendants. They closed their side.
6. I heard the arguments of learned advocate for defendant.
At the time of argument, learned counsel for the defendant filed memo with certified copies of the order passed in MFA 1987/2021.
7. My findings to the above issues are as follows:-
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 Nos.1 to 3:- Since these issues are interlinked with each other based on common facts, finding on one issue has great bearing on other issue. Therefore, in order to avoid repeated discussion, the issues are taken together for discussion.
It is not in dispute that the suit property is previously owned and possessed by late Nagaiah Sangayya Math. It is also not in dispute that the said property was allotted to deceased Nagaiah by allotment letter issued by BDA and subsequently, sale deed 9 executed by the BDA in favour of deceased Nagaiah. It is also undisputed fact that Smt.Pavithra is one of the daughter of Nagaiah and defendant No.1. But, the remaining facts such as the deceased Nagaiah executed Will in favour of Pavithra on 28-09-2007 and Will was probated by Smt.Pavithra in P & S.C. 278/2017. Based on said probate, katha certificate issued to Smt.Pavithra, she has executed lease agreement on 31-5-2019 in favour of the plaintiff by receiving Rs.5,00,000/-. The source of possession pleaded by the plaintiff is in pursuance to lease deed executed by Smt.Pavithra on 31-5-2019. Whereas, the defendants have disputed the execution of Will dated 28-09-2007 and making the Will probated in P & S.C. 278/2017.
9. According to the defendants, Smt.Pavithra deserted the family of Nagaiah Math by performing love marriage with a person called Kiran Babu. She was not connected with the family after her marriage with him. The defendants also contended that Nagaiah Math has not executed any Will in favour of Pavithra, the plaintiff and Pavithra colluded with each other have created the Will.
10. During the arguments, the learned counsel for the defendant No.3 contended that after noticing the fact that Smt.Pavithra has obtained probate as per Ex.P.3. They have filed P 10 & S.C. No.298/2018 before CCH-26 and the said petition was allowed, probate granted in P & S.C. 278/2017 dated 11-4-2018 was revoked. The Court has directed Pavithra to surrender the probate before the Court by restoring the P & S.C.278/2017. In this regard, they have relied upon Ex.D.1 which is the order sheet in P & S.C. 298/2018. On perusal of the same, it reveals that the petition was filed on 23-7-2018 on the same day, an application under Order 39 Rule 1 & 2 of CPC was filed by the defendants in this case. The said application was allowed, exparte temporary injunction granted against the respondent by name Pavithra not to alienate or create any kind of charge over the suit property. This order was passed on 23-07-2018, whereas, the lease agreement which was marked as Ex.P.2 and sent for registration was alleged to have been executed on 31-5-2019.
11. The case of the plaintiff is that he was unaware of the injunction order passed by 10th Addl.City Civil & Sessions Judge, in P & S.C.No.298/2018. Therefore, he has paid Rs.5,00,000/- as lease amount to Smt.Pavithra and took the possession of the premises from her. In support of his contention, the plaintiff produced Ex.P.4 katha certificate issued by BBMP, it stands in the name of 11 Smt.Pavithra. According to the plaintiff, on the date of execution of the lease deed, the property stand sin the name of Smt.Pavithra. Therefore, she was partly entered into lease agreement with her. But, during the cross-examination of P.W.1, he categorically admitted that there was an injunction order restraining Pavithra from creating any interest over suit schedule property.
12. P.W.1 also states that he came to know about the restrained order in subsequent dates and tried to cancel the lease with Smt.Pavithra. P.W.1 also admitted that the succession certificate issued in P & S.C.No.278/2017 was revoked in P & S.C.No.298/2018. However, he denied that having full knowledge about the interim order, they have concocted the lease deed. P.W.1 and his power of attorney holder of the plaintiff in page No.8 of his cross-examination he stated that he has entered into Agreement of Sale in personal capacity with Pavithra in receipt of the suit property. The consideration amount is Rs.1,15,00,000/- and he has already paid Rs.25,00,000/-.
13. P.W.1 further stated that the Agreement of Sale is executed in June 2018 but he has not produced the said Agreement of Sale alleged to have been executed by Smt.Pavithra in his favour. 12 Because, two documents are set out by the plaintiffs and his power of attorney holder, one is the alleged Agreement of Sale executed in the month of June 2018 and another one is lease deed dated 31-5-2019. If at all, Pavithra has executed Agreement of Sale for Rs.15,00,000/- there is no necessity for executing lease deed on 31-5-2019 by receiving the amount of Rs.5,00,000/-.
14. P.W.1 in the last line of his cross-examination in page No.8 stated that he has not took the possession of the suit property. Since he is giving evidence as power of attorney holder on behalf of the plaintiff, it can be inferred that the possession of the suit property is not delivered either to the plaintiff or to his attorney. Further, on the date of execution of the alleged lease deed executed Pavithra has no authority to execute the same because there is clear restrained order passed in P & S.C No.298/2018. Therefore, in lease deed which is alleged to have been executed by Pavithra in favour of the plaintiff has o relevance. Entry into possession is doubtful. In view of the admission of P.W.1 that the possession was not delivered to him makes it is clear that the Executant Pavithra has no authority to execute lease agreement and the lease agreement is not proved in accordance with law. Except examining the power of 13 attorney holder, the plaintiff has not tendered himself before the Court to depose about the Agreement of Sale and handing over Rs.5,00,000/- as lease amount to Smt.Pavithra. The revocation of the probate on the alleged Will executed by Nagaiah Sangayya Math makes it clear that Smt.Pavithra has no authority to deal with the property. Entry into possession of suit property by the plaintiff itself doubtful.
15. The cross-examination of P.W.1 makes it abundantly clear that he is a real estate business man and any how, they wanted to take the property in his kitty. The other documents such as katha certificate, photographs of property are not helpful to prove the possession of the plaintiff over the suit property. The plaintiff claimed that he put up compound wall and constructed two sheds for storing the building materials. In the photographs, I could not find any building materials stored in the two sheds existing in Ex.P.6. It further nullifies the contention taken by the plaintiff.
16. On the other hand, the defendant No.3 examined as D.W.1 and she has produced the certified copy of order sheet in P & S.C. No.298/2018, wherein there is injunction order operating against Smt.Pavithra on 23-07-2018. Ex.P.2 which is now sent for 14 registration is not yet returned to the Court and it is not proved in accordance with law. Ex.D.2 is the order passed by 10 th Addl.City Civil & Sessions Judge, Bengaluru in P & S.C.No.298/2019, wherein, the probate granted in favour of Pavithra was revoked and she was asked to surrender the order of probate before the Court and P & S.C.No.298/2017 was revoked. In the Order, the learned Jude has clearly discussed about the grant of probate in favour of Pavithra and produced execution of Will by Nagaiah Math in favour of husband of defendant No.3. The probate issued in favour of Pavithra was cancelled and the said case was retained. Subsequently, what happened to the said case was not stated by the plaintiff or by any of the defendants.
17. D.W.1 in her cross-examination stated that the sign board regarding prohibitory order passed in P & S.C. 298/2018 was displayed but she stated that she has not produced any photographs in this regard. She has also stated that she is not published the prohibitory order in any newspaper. The order passed by the Court is to notice to entire world. A person who is entering into lease agreement by paying amount of Rs.5,00,000/- must ascertain the ownership and possession of Executant over the property. There is 15 no reasonable enquiry made by the plaintiff before entering into alleged lease agreement with Pavithra. The other documents such as payment of tax, LIC loan offer letter, LIC loan clearance certificate, Will Deed executed by Nagaiah in favour of deceased husband of the defendant No.3, statement of accounts etc., clearly goes to show that the defendants are in possession of the suit property. The plaintiff failed to prove his possession and enjoyment over the suit property on the date of filing of the suit.
18. During the arguments, the learned counsel for the defendants also produced certified copy of order passed by the Hon'ble High Court in MFA No.987/2021, wherein, the appeal filed by the power of attorney holder of the plaintiff challenging the order passed by 10th Addl.City Civil & Session Judge, Bengaluru was dismissed. An attempt was made by P.W.1 before the Hon'ble High Court to challenge the P & S.C based on the alleged agreement of sale, dated 17-4-2018. As on this date, the alleged agreement of sale is not produced by P.W.1 or his principal i.e., the plaintiff. Both plaintiff and P.W.1 are taking two stands without substantiating the documents. Therefore, their entry into possession of property is doubtful. There is no iota of documentary evidence regarding the 16 alleged interference by the defendants in the possession of the plaintiff or his power of attorney holder. Under these circumstances, I answer issue Nos.1 to 3 in the negative.
19. Issue No.4:- In view of my findings on issue Nos.1 to 3, I pass the following:-
ORDER Suit of the plaintiff dismissed with costs. Draw Decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 3rd day of August 2024) (J.V.KULKARNI) XXXV Addl.City Civil & Sessions Judge, Bengaluru ANNEXURE Witnesses examined on behalf of the plaintiff.
P.W.1 : Sri.Krishna Witnesses examined on behalf of the defendants.
D.W.1: Sri.Gayathri Math 17 Documents marked on behalf of the plaintiff.
Ex.P.1 : GPA
Ex.P.2 : Lease Agreement
Ex.P.3 : Probate Certificate
Ex.P.4 : Khata Certificate
Exs.P.5 : Photographs
& P.6
Ex.P.7 : CD
Ex.P.8 : Endorsement
Ex.P.9 : Challan
Documents marked on behalf of the defendants.
Ex.D.1 : Certified copy of the order sheet
P & S.C. No.298/2018
Ex.D.2 : Order dated 31-3-2021 passed by the City
Civil Court in P & S.C.
Ex.D.3 : Certified copy of the khata extract
Ex.D.4 : Certified copy of the challan in respect
of payment of tax of suit property
Ex.D.5 : Certified copy of the LIC loan officer
letter
Ex.D.6 : Certified copy of letter of LIC,
dated 19-11-2004
Ex.D.7 : Certified copy of LIC loan clearance
certificate dated 21-1-2010
18
Ex.D.8 : Certified copy of the Will
Ex.D.9 : Certified copy of the statement of
account of Bank
Ex.P.9(a) : Certificate issued by the Bank
Manager under Banker's Books
Evidence Act
Ex.D.10 : Certified copy of death certificate of
one Subodh Math
Exs.D.11 : Certified copies of Certificate under
& D.12 Section 2(A) of Banker's Book Evidence
Act
Ex.D.13 : Certified copy of the Sale deed,
dated 30-06-2004
Ex.D.14 : Certified copy of the allotment letter
of site issued by the BDA, dt: 13-3-2002
Ex.D.15 : Certified copy of Possession Certificate
Ex.D.16 : Death Certificate of Sunil Math
Ex.D.17 : Certified copy of the Death Certificate
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru