Bangalore District Court
Sri.M.S.Kaushik vs Sri.B.V.Srinivas on 22 July, 2016
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 22nd day of July 2016.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.25452/2010
Plaintiff: Sri.M.S.Kaushik,
S/o.M.Sadanand, aged about
26 yrs, R/at.House No.26/1,
First Floor, Nandidurga Road,
4th Cross, Jayamahal Extension,
Bengaluru-560046.
(By Sri.K.Marappa Reddy, Advocate)
V/S
Defendant: Sri.B.V.Srinivas, aged about
46 yrs, R/in.Anjaneyaswamy
Temple Block, Marappa Garden,
Behind Banana Shop in the
4th Cross, R.Sonnappa Block,
Benson Town Post, Bengaluru-
560046.
(By Sri.V.Krishnan, Advocate)
2 O.S. No.25452/2010
Date of institution of the suit 17.03.2010
Nature of the suit (Suit for Pro-note,
Suit for Declaration and Possession, Suit for Declaration
Suit for Injunction, etc.)
Date of commencement of recording 24.08.2012
of the evidence
Date on which the Judgment was 22.07.2016
pronounced
Total duration Year/s Month/s Day/s
06 04 05
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for seeking a relief of declaration to declare that the plaintiff is the owner of the suit schedule property by way of settled possession and also for possession of the old house situated in the Southern portion of the land bearing Khatha No.31/3 measuring approximately East-West: 30 ft., North-South: 20 ft., and for costs.
2. The description of the suit schedule property as shown in the schedule to the plaint is as follows:-
All that piece and parcel of residentially converted immovable property bearing Khata No.31/3 situated in Anjaneyaswamy Temple Block of K.G.Badarahalli Civil Station, Bengaluru-560046 (Marappa Garden), in old Sy.No.78, B.B.M.P. Ward No.92, old New No.62, measuring East to West: 70 feet, 3 O.S. No.25452/2010 North to South: 114.3 feet, admeasuring 8001 Sq. feet and bounded by:-
East by: Khata No.32/A, 31/2 & 31/1-A;
West by: Khata No.31/9 and 31/7;
North by: Khata No.27/1; and on
South by: Three Shops facing 4th Cross Road
R.Sonnappa Block.
3. Case of the plaintiff, in brief, is as below: -
The plaintiff is the owner of the suit schedule property having purchased from one Muniraju through his GPA holder K.Marappa Reddy in six bits, between 16.11.2006 and 03.02.2007 and he is in possession of the property, by paying tax to the B.B.M.P. It is also case of the plaintiff that in the Southern portion of the schedule property there is an old house measuring approximately East-West: 30 ft., North-South: 20 ft., bounded on the East by: Passage and Part of Khata No.31/3, West by: A part of Khata No.31/3, North by: Khata No.31/3 and South by: 3 Shops facing towards 4th Cross Road linking to the R.Sonnappa Block, built with mud walls, clay flooring and a low level tiles roof, with no light, water and sanitary connection; for which no number is assigned by BBMP. The defendant has sneaked into that old house 4 O.S. No.25452/2010 and living there with his family members without paying rent to the owner of the house and also without having documents and making payment of taxes to the BBMP. He has not inherited that house from anyone. He has trespassed into the above said house by occupying it unauthorisedly. Further it is case of the plaintiff that the defendant after coming to know that the plaintiff had purchased the land bearing Khata No.31/3 and had applied for the transfer of khata from Muniraju to the plaintiff's name, the defendant arranged his sister-in-law Jayalakshmi, W/o.Mune Gowda and his wife Vijaya.K., for giving an application to the Addl. Commissioner, BBMP on 04.07.2008 along with joint representation by submitting to the Assistant Revenue Officer Ward No.92 on 09.10.2007 with a prayer to dismiss the application of the plaintiff sought for the transfer of khatha to his name. At the request of the plaintiff, K.Marappa Reddy applied and obtained a copy of the Joint Representation of Jayalakshmi and Vijaya.K., under the RTI Act, wherein reported that the present status and position of the parties in the Eviction Petition in H.R.C. No.638/1993 and in his letter dated 31.12.2008. The Asst. Revenue Officer and the Addl. 5 O.S. No.25452/2010 Commissioner referred the matter to the legal cell of BBMP for obtaining their opinion to change the khatha of the plaintiff to the suit schedule property. Then the legal cell in their reference No.B.M.P./LC/CR/593/09-10 has opined that the khata may be transferred to the name of plaintiff; accordingly the same was transferred and also issued a khatha certificate to the plaintiff by confirming that the plaintiff is the owner of the land bearing khata No.31/3, which was uncontested. Hence, this suit arose.
4. After issuance of the suit summons and duly served upon him, the defendant appeared through his advocate Sri.V.Krishnan;
thereafter the defendant has filed his WS.
5. Case of the defendant, in brief, is as below:-
This defendant contended in his WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. Further it is contended that the court fee paid is insufficient and the suit filed by the plaintiff is bad for non- joinder of proper and necessary parties. It is also case of the defendant that the defendant is the son-in-law of one Ammayamma who has 3 daughters, namely Vijaya, Gayathri and Nagamma and a 6 O.S. No.25452/2010 one son by namely Srinivas. Srinivas died leaving behind his wife, Saroja and 3 children by namely Leela, Vinaya and Vidya. Besides the said persons, Manju, Papamma, A.Narayana, Saraswathamma, Irudanathan, David and Honnappa are also proper and necessary parties to this suit to adjudicate the matter on merits. It is also contended that Sri.Marappa Reddy is acting as a PA holder of Muniraju who has filed HRC No.639/92, 10160/92, 10161/92, 10163/92, 10171/92 and 10178/92 respectively. In the above said HRC cases, it was contended that there was existing a relationship as landlord and tenant between Muniraju and Ammayamma. The defendant's mother-in-law Ammayamma and others contended that there was no jural relationship and no rent was paid and the suit house were built by Byrappa and Saraswathamma. It is further contended by the defendant that in another case which the petition was filed in the court by Annayya, he contended that arbitration proceedings were conducted in A.C. No.10013/1983 and the award also is passed in the arbitration proceedings, therein held that the Annayya is the owner. All the HRC cases were disposed off holding that there is no relationship of landlord 7 O.S. No.25452/2010 and tenant. It is also contended that there is no proper description of the property is shown in the schedule of the plaint and the defendant become the absolute owners of the property by adverse possession. The HRC petitions were filed in the year 1992 and this suit is filed in the year 2010. Ammayamma died during the year 1995 leaving behind her legal representatives Smt.Vijaya and her family members, who are residing in the house property apart from that Sri.Irudianathan s/o.Late.Mariamma is residing wherein. Further it is contended by the defendant that the relief of possession and declaration sought by the plaintiff is barred by limitation; because the suit is filed beyond time and same is liable to be rejected in limine as stated under Section 27 of the Limitation Act, such relief cannot be granted. Further it is also contended that the defendant's wife and others have perfected their title over the suit schedule property by way of adverse possession, and the alleged arbitration award, which is passed in favour of the plaintiff is not binding on this defendant and it is unenforceable against him. The above said Muniraju himself has no right over the schedule properties in respect of Sy.No.78 of K.G.Baiderahalli; 8 O.S. No.25452/2010 subsequent to the sale deeds, on the basis of the power of attorney, which the title and ownership is claiming by the plaintiff are invalid in the eyes of law and the khatha changed in the name of the plaintiff is in collusion with the officials of BBMP and the same is not binding on this defendant. Thus, the defendant prays to dismiss the suit of the plaintiff with heavy costs.
6. From the above said pleadings, following issues have been framed by my learned Predecessor:-
1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property on the date of the suit?
2. Whether the plaintiff proves interference caused by defendant?
3. Whether the plaintiff entitle for permanent injunction?
4. Whether the suit is bad for non-joinder of proper and necessary parties?
5. Whether the suit is valued properly and court fee paid is sufficient?
6. Whether the suit is barred by limitation?
7. Whether the defendant proves that his wife perfected her title to the suit schedule property by way of adverse possession? 9 O.S. No.25452/2010
8. What order or decree?
7. On behalf of the plaintiff, affidavit evidence of plaintiff has been filed and he has been examined as P.W.1 and Exs.P.1 to P.29 documents have been got marked.
8. On the other hand, on behalf of the defendant also, affidavit evidence of defendant, has been filed and he has been examined as DW.1, and affidavit evidence of defendant witness by name Smt.Jayalakshmi as a DW.2 and Exs.D.1 to D.21 documents have been got marked.
9. Ex.P.1 is the copy of decree in A.C. No.10013/1983, Ex.P.2 is the certified copy of GPA, Ex.P.3 is the copy of conversion certificate, Ex.P.4 is the copy of order of Special Deputy Commissioner granted occupancy right of lands, Ex.P.5 are the 33 tax paid receipts, Ex.P.6 is the notice of BBMP, Ex.P.7 is the Certificate of BBMP, Ex.P.8 is the notice, Ex.P.9 is the reply, Exs.P.10 to P.15 are the six sale deeds, Ex.P.16 is the copy of acknowledgement of Suvarna Khatha, Ex.P.17 is the copy of letter to ARO of BBMP, Ex.P.18 is the letter to Commissioner of BBMP, Ex.P.19 is the copy of letter to ARO by plaintiff, Ex.P.20 is the 10 O.S. No.25452/2010 uttara pathra, Ex.P.21 is the copy of notice of Suvarna Khatha, Ex.P.22 is the khatha certificate, Ex.P.23 is the khatha extract, Ex.P.24 is the notice, Ex.P.25 is the postal acknowledgement, Ex.P.26 is the reply, Ex.P.27 is the copy of the proceedings of the BBMP relating to transfer of khatha, Ex.P.28 are the 7 photographs, Ex.P.28 (a) is the CD, and Ex.P.29 is the hand sketch.
10. Ex.D.1 to D.4 are the four aadhaar cards, Ex.D.5 is the gas book, Ex.D.6 is the ration card, Ex.D.7 is the marriage invitation card, Ex.D.8 to D.10 are the electoral ID cards, Ex.D.11 is the death certificate, Ex.D.12 is the birth certificate, Ex.D.13 is the copy of notice, Ex.D.14 is the voters' list, Ex.D.15 is the voters' list book, Ex.D.16 is the certified copy of GPA, Ex.D.17 is the certified copy of HRC No.638/1992 order, Ex.D.18 is the ration card, Ex.D.19 is the gas application, Ex.D.20 is the electoral ID card, and Ex.D.21 is the death certificate.
11. Heard, the learned advocate for the plaintiff and defendant and perused the records. Learned advocate for the plaintiff has submitted written arguments also and the same has been considered. Learned advocate for the defendant has 11 O.S. No.25452/2010 submitted written arguments also and the same has been considered.
12. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: Affirmative, Issue No.2: Affirmative, Issue.No.3: Negative, Issue No.4: Negative, Issue No.5: Affirmative, Issue No.6: Negative, Issue No.7: Negative, Issue No.8: As per final order, for the following:-
REASONS.
13. ISSUE No.1 & 7: Both these issues are interlinked each other; hence, for avoiding repetition I have taken up both these issues for discussion at one stretch. In order to prove the issue No.1 and to disprove the issue No.7 in this case of plaintiff he 12 O.S. No.25452/2010 himself got examined as a P.W.1 by reiterating the plaint averments in his chief-examination stated that he is a purchaser of the land bearing khatha No.31/3 from its original owner Muniraju through his GPA holder K.Marappa Reddy under the different 6 registered sale deeds in between 16.11.06 to 3.7.07; accordingly he is in possession of the suit schedule property including the old house measuring about 30 ft East-West and 20 ft. North-South, which is bounded as to the East by: Passage and Part of the Property of Khatha No.31/3, and West by: Khatha No.31/3, North by: Khatha No.31/3, South by: 3 Shops facing towards 4th Cross Road linking to R.Sonnappa Block. It is also plaintiff stated that he has got changed the khatha to his name from the date of purchase and he has been paying the tax of the above said suit schedule property including the old house built up with mud walls, in which the defendant and his family members are living unauthorisedly. After coming the above said matter to his knowledge, the plaintiff applied to the BBMP to get change the khatha in his name; then the defendant set up his sister in law Jayalakshmi and his wife Vijaya.K., they have jointly submitted a 13 O.S. No.25452/2010 petition to ARO and Addl. Commissioner of BBMP, with request not to transfer the khatha in the name of plaintiff. It is further stated by the P.W.1 that on his request Marappa Reddy applied and obtained the copies of joint petition submitted by Jayalakshmi and Vijaya.K., to the ARO and Joint Commissioner of BBMP; then directed to report the correct status position of the parties and their houses to the ARO. Accordingly, it was reported to the concerned ARO in his letter dated 31.12.2008. It is also P.W.1 stated that before changing the khatha to the name of plaintiff, the Joint Commissioner of BBMP sent the above said file to the legal cell of the BBMP for collecting the legal opinion. Thereafter, as per the opinion given by legal cell khatha is changed in the name of plaintiff. Accordingly, he is paying the tax and khatha certificate also issued to him as a owner of the land bearing khatha No.31/3. But, neither the defendant nor his sister in law Vijayalakshmi or his wife Vijaya.K., challenged the above said opinion of the legal cell given for passing the order of transfer of khatha in the name of plaintiff by the said authority. Even though the plaintiff issued a legal notice to the defendant through his advocate on 02.02.2010 14 O.S. No.25452/2010 for terminating the illegal occupation of defendant with effect from 28.02.2010 asking him to quit the suit schedule property; then also the defendant did not vacate the house, instead of that he replied on 02.03.2010 through his advocate stating that all the facts narrated in the legal notice of plaintiff is false and cooked up story. Further P.W.1 stated that the defendants are claiming a right of title over the suit property by stating that they are in adverse possession from more than 55 years. On the said grounds the plaintiff is claiming ownership and possession over the suit schedule property by stating that even on the date of filing the suit also he had a valid title and a owner of the same and he was in possession of the suit schedule property by paying tax to the BBMP. In support of the case of plaintiff, he has produced GPA certified copy and a conversion certificate certified copy, which was granted by the Special DC, Bengaluru, and other tax paid receipts obtained from BBMP. The plaintiff has produced certified copy of the order of A.C. Case No.10013/83; i.e., Ex.P.1 therein ordered on 15.6.73 as award passed and confirmed that respondent No.2 (a) has perfected his title on petition 2-A schedule property and he has become the 15 O.S. No.25452/2010 owner thereof and also respondent No.2 (b) to 2 (d) have perfected their title to the petition 2-B to 2-D property and also they become owners of the said property. It is further ordered and decreed that 1st respondent is continued to be absolute owner of the petition schedule property remaining in access of properties in schedule 2- A to 2-D more fully described as schedule No.3 and also produced the other documents that the plaintiff has submitted a application for seeking change of khatha from the office of ARO under the Suvarna Yojane and also produced the Ex.P.3 a land conversion sanction certificate dated 30.6.1980, in which it is mentioned that on 31.5.1980 the amount of Rs.7,735/- having remitted by the Marappa Reddy and he is permitted to utilize the above said land by converting subject to the conditions of conversion order passed under Section 95 (2), 95 (4) and 95 (7) of the Karnataka Land Revenue Act for the purpose of non-agricultural purpose. Ex.P.5 Tax Paid Receipts in total 33 are produced relating to the period of 26.04.1991 upto 17.7.2009 about the tax is paid by the Muniraju and on 01.01.2010 arrears of tax Rs.4,747/- has been collected by the BBMP for the period of 2007 to 2010 and on 29.4.2010 and 16 O.S. No.25452/2010 also on 25.4.2011 from Mr.Kaushik, the plaintiff of this case has paid the tax for the year 2010-2011 and 2011-2012 and also produced the Uttara Patra Nishane Ex.P.20 and copy of Suvarna Khatha Notice Ex.P.21 and Khatha Certificate Ex.P.22 and Ex.P.23 Khatha Extract, etc., for establishing the ownership and possession over the suit schedule property by the plaintiff. Through the above discussed documents, it is disclosing that initially the suit schedule property was in the name of Muniraju as a owner of the said property, thereafter he executed a GPA in favour of Marappa Reddy, in favour of whom the above said AC order is passed about the suit schedule property and after that the plaintiff has purchased the land in 6 bits. Further the tax paid receipts are disclosing that earlier owner of the suit schedule property Muniraju and his GPA holder Marappa Reddy have paid the tax as above discussed and thereafter, the plaintiff has paid the tax to the BBMP by stating that he is the owner and possessor of the suit property. Ex.P.24 is a notice issued by the plaintiff advocate to the defendant and Ex.P.25 is its postal acknowledgement and Ex.P.26 is a reply notice reached to the plaintiff from the defendant and Ex.P.27 are the photos of the 17 O.S. No.25452/2010 suit schedule property and Ex.P.28 is a CD of the above said photos, Ex.P.29 is a hand sketch map of the suit schedule property.
14. The defendant B.V.Srinivas is got examined himself as a D.W.1, he stated in his affidavit evidence that the claim of the plaintiff that he purchased the land bearing khatha No.31/3 from the previous owner and kathedhar Muniraju through his GPA holder K.Marappa Reddy in 6 separate bits sale deeds and the plaintiff came into possession of the suit schedule property by paying the tax to the BBMP etc., is denied by the D.W.1 and further on the other hand, D.W.1 it is stated that Muniraju himself was not having a right to sell the property to him. D.W.1 further stated that the defendant's wife is in possession of the portion of land measuring 40 x 25 ft., which is numbered as Sy.No.78 by having a ration card, gas connection, voter ID card; therefore the question of payment of rent as a tenant does not arise. Plaintiff has no right over the suit schedule property and he has no legal relationship of tenant and landlord with anyone. It is also stated that he has neither trespassed into the house nor occupying it unauthorisedly; however, the house was built up in suit schedule 18 O.S. No.25452/2010 property by one grandfather of Vijaya.K., who is the wife of defendant. D.W.1 it is further stated that the present status position of the parties to the eviction petition is like wherein prayed in HRC No.638/93, it is also stated about his letter dated 31.12.2002 written to the ARO Jayamahal that, which is also not noticed to defendant that the ARO and Addl. Commissioner of BBMP referred to its legal cell the application submitted by the plaintiff for seeking transfer of the khatha of the suit schedule property in the name of plaintiff, and it is also not in the knowledge of defendant that, the opinion given by the legal cell is being in favour of the plaintiff, which was opined to transfer the khatha of the suit schedule property in the name of plaintiff. Further D.W.1 denied that, the BBMP has received the tax and issued a khatha certificate confirming the ownership of plaintiff over the khatha No.31/3. D.W.1 it is also stated that the plaintiff cannot terminate the possession of the defendant by issuing a quit notice as mentioned in the legal notice dated 2.2.10. On the other hand, in the reply notice dated 2.3.10, which is sent by the both K.Vijaya and defendant's wife answered that, plaintiff is not having any 19 O.S. No.25452/2010 possession and title over the suit schedule property, instead of that the defendant is in possession of the above said constructed house from a longer period, it is well within the knowledge of plaintiff. Therefore, the defendant has established the adverse possession over the said house situated in the suit schedule property as stated in his WS, it is also stated that there was existed a relationship as a landlord and tenant between Muniraju and Ammaymma. The defendant's mother in law Ammayyamma and others have taken contention that there was no jural relationship and no rent was paid, and the above said house were built up by Byrappa and Saraswathamma etc., in the application submitted by the Annayya in the arbitration proceedings. In A.C. No.10013/83, the arbitrator has awarded and passed a order in respect of the suit schedule property as Annayya become the owner; but the award is not registered. It is also held that Muniraju had not approached to arbitration with clean hands and only arbitration case filed on the basis of the HRC case, and Ammayyamma and others were not a tenants. D.W.1 further stated that there is no description of the property in the suit schedule of the plaint. Defendant has 20 O.S. No.25452/2010 contended that they become the absolute owners of the suit schedule property by way of adverse possession. HRC petitions are filed in the year 1992 and original suit is filed in the year 2010, Ammayyamma died during the year 1995 and her legal representatives Smt.Vijaya and her family members are residing in the house apart from that Irudianathan S/o.Late.Mariyamma. D.W.1 it is also further stated that Ammayyamma and others have been in possession of the constructed house, which is situated in the suit schedule property from the period, for more than 50 years; therefore, the possession of the predecessors of defendant is to be taken into consideration etc., and defendant's wife is in possession of a portion of the property measuring 30 x 25 ft., and remaining portions are in possession of others, thus they have perfected a title of adverse possession over the house situated in suit schedule property, which is adverse and hostile as open and having the knowledge about the same to the original owner Muniraju and others. It is also stated that defendant's wife and her predecessors in title have been in possession of the property from more than 35 years. The sale deeds obtained by the plaintiff on the basis of GPA 21 O.S. No.25452/2010 are not lawful; accordingly, the plaintiff cannot claim the title over the suit schedule property; thus, all the sale deeds of the plaintiff produced in this case, which are executed on the basis of the power of attorney are invalid in the eyes of law and khatha was made out in the name of plaintiff, since he was colluding with the officials of the BBMP; therefore, it is not binding upon the defendant. The defendant is having a right to question the same. Thus, the defendant led his evidence by claiming the adverse possession over the mud house situated in the suit schedule property and by denying the title, possession and ownership of the plaintiff over the same.
15. One Smt.Jayalakshmi w/o.Munegowda submitted her affidavit evidence as a D.W.2, she has stated in her affidavit evidence that she knows the Marappa Reddy and B.V.Srinivas; i.e., defendant, who is the husband of Smt.Vijaya.K., she is her cousin sister, Ammayyamma and her mother are sister in relation and resided in different portion of the land bearing No.78 being a neighbours to each other, since last more than 50 years. D.W.2 it is also stated that some others also are/were in possession of the 22 O.S. No.25452/2010 portion of lands out of Sy.No.78 and the possession of the land being in occupation of her is approximately 30 x 40 ft. and her mother has been in possession of it from near about 50 years prior to her death. Thus, the defendant and herself have perfected a title over the suit schedule property, the defendant's mother-in-law had acquired the same in adverse possession. In total D.W.2 has fully supported the contention of the defendant taken in the evidence of D.W.1 and WS and denied the title, possession and ownership of plaintiff over the suit schedule property.
16. In order to establish the adverse possession of the defendant over the suit house situated in suit property; i.e., Sy.No.78, D.W.1 has produced the documents Exs.D.1 to D.4, which is a Aadhaar Card issued to Smt.Vijaya.K., and Sri.B.V.Srinivas; i.e., defendant and their children Deepika.S., and Darshan Kumar.S., respectively. In all the Aadhaar Cards residential address of the defendant and his family members mentioned that No.78-A, 4th Cross, Anjaneya Temple Street, Sonnappa Block, Marappa Garden, Bengaluru and a schedule of the suit property is presently mentioned like that the immovable 23 O.S. No.25452/2010 property bearing Khata No.31/3 situated in Anjaneyaswamy Temple Block of K.G.Badarahalli Civil Station, Bengaluru-560046 (Marappa Garden), in old Sy.No.78, B.B.M.P. Ward No.92, old New No.62, measuring East to West: 70 feet, North to South: 114.3 feet, admeasuring 8001 Sq. feet and also produced the some other documents, ration card standing in the name of defendant by namely Smt.Vijaya.K., and also another temporary ration card issued under the APL scheme and marriage invitation card of defendant and his wife Smt.K.Vijaya, the marriage, which is held on 31st May 1992 in their own house situated at Marappa Garden, which are marked at Ex.D.5 to D.7 and further produced the election ID cards of B.V.Srinivas/defendant and his wife Smt.Vijaya.K., and another election ID card of Ammayyamma w/o.Kempanna and all the said election ID cards, the residential address of the above said persons shown as No.78-A, 4th Cross, R.Sonnappa Block, Bengaluru and the said election ID card of Smt.Vijaya and Ammayamma issued in the month of January 1996 and election ID card of B.V.Srinivas issued in the month of March- 2004, which are marked at Ex.D.8 to D.10. Exs.D.11 & D.12 are 24 O.S. No.25452/2010 the death certificate of Ammayamma and birth certificate of one of the female child of Srinivas and Smt.K.Vijaya issued on 2.6.98 and 30.9.93 are also disclosing their residential address No.78, Munireddy Palya, Marappa Garden, Bengaluru. Ex.D.13 is a complaint dated 18.5.05 given by Smt.K.Vijaya and Smt.Jayalakshmi to the Circle Inspector of J.C.Nagar, Bengaluru, by stating that, the land bearing Sy.No.78, K.G.Byadarahalli, is cultivating by one Byrappa and Smt.K.Vijaya is the daughter of Ammayamma and Smt.Jayalakshmi is the daughter of the Sarasamma. Smt.Papamma and Smt.Ammayyamma and Sri.Aswath Narayanappa were in possession of the above said land. But, one Annayya and Muniraju are claiming that the said property is belonging to them and also filed a various HRC petitions against the Papamma and others and taken defence that the said properties came to them by acquiring a title by deriving possession as per the order of arbitration, in which declared to be the owners. Further therein written that Marappa Reddy and his wife Kamalamma are threatening to demolish the structures, in which they are in possession of the land from more than 4 decades and prayed to take 25 O.S. No.25452/2010 a legal action against the Marappa Reddy and his wife. Further the defendants have produced the Ex.D.14 & D.15 a voter lists of the Karnataka Legislative Assembly of the year 1995 and 1977. In Ex.D.14 at page No.9 electoral role No.474 to 477, in which it is mentioned the name of defendant and his wife and also Ammayyamma, Kempamma, Gayathri, by stating that they are residing in 78-A, of 4th Cross, R.Sonnappa Block, Bengaluru. In Ex.D.15 Voters List Book also mentioned the same address of the defendant and his wife and also above said Ammayyamma, Kempamma, and Gayathri are residing in the above said house property No.78-A, 4th Cross, R.Sonnappa Block, Bengaluru. Ex.D.16 is a GPA executed on 1st day of October 1966 by K.Marappa Reddy in favour of M.B.Ramachandran s/o.Byrappa relating to the above said property situated in Sy.No.78, K.G.Byadarahalli, Civil Station, Bengaluru, to appear before the public offices and to make any transaction in respect of the property situated in above said Sy. No. Ex.D.17 is a certified copy of the judgment of HRC No.638/92 to 10173/1992 dated 2nd August 1997 passed by the Chief Judge of Small Cause, Bengaluru 26 O.S. No.25452/2010 City. All the HRC petitions were dismissed for want of jural relationship between the petitioners and respondents, which were filed by the H.Annayya, Muniraju against the Smt.Papamma, Ammayamma, B.M.Ashwathnarayan, Saraswathamma, Shankarappa, Irudianathan and David and also Honnappa (Honnaiah). Ex.D.18 is a old ration card issued on 19.7.95 to Sarasamma. Ex.D.19 is a gas subscription voucher issued on 19.7.95 by Bharath Petroleum Corporation Ltd., in favour of Munegowda, No.4, Anjaneya Temple Street, Marappa Garden, 4th Cross, Bengaluru. Ex.D.20 is a election ID card of Sarasamma, which is issued on 23.1.96 from the Election Commission of India. Even in the said document also the address of the Sarasamma shown 24-B, AST Street, Jayamahal, Bengaluru. Ex.D.21 is a death certificate of Sarasamma reporting her death on 9.8.97, which is issued on 27.9.94 from the BBMP, Bengaluru, in which the address of the deceased mentioned that No.78, Anajaneya Temple Street, Marappa Garden, JC Nagar, Bengaluru. Through the Ex.D.1 to D.21 the defendant is trying to make a assertion that from the year 1992 to till 2014 as mentioned in Ex.D.21 they are residing in the 27 O.S. No.25452/2010 above said house property and established a adverse possession, which is more than 22 years knowingly to the earlier owner of the suit schedule property by name Muniraju and including the plaintiff; accordingly the defendant has established the adverse possession over the suit schedule property by residing in it, since last more than 22 years; i.e., the 12 years possession over the suit house knowingly to the owner of the above said property without anybody interruption for the enjoyment of the same, which will fulfill the ingredients of adverse possession.
17. It is pertinent to note that the counsel for the defendant drawn the attention of this court towards the following cross- examination of the P.W.1 in support of the defendant's case. During the cross-examination of the P.W.1 of the defendant advocate, he has stated that Marappa Reddy had two wives by name Sharadamma and Kamalamma, who are a sisters each other. Sharadamma is residing with her son-in-law by name A.B.Ramachandran. Further P.W.1 answered that he does not know that, whether the Marappa Reddy go to the house of the Sharadamma or not. P.W.1 it is also stated that he born in the year 28 O.S. No.25452/2010 1983 and studied up to BBM degree, which is passed in the year 2009 and his father is working as a Manager in Bharath Electricals and who had completed a LL.B. Graduation. It is further stated by the P.W.1 that suit Sy.No., is regranted to Marappa Reddy, he has not acquired the title under the sale deed; but it is stated that the suit schedule property was decreed by the arbitration in AC No.10013/83 in favour of the Muniraju. It is further stated that the said Muniraju was cultivating the suit Sy. No., as a tenant under the Marappa Reddy. It is answered that he does not know whether any document is taken place in between the Marappa Reddy and Muniraju regarding the cultivation of the suit Sy. No. It is also answered that before purchasing the suit schedule survey number Muniraju had shown the tax paid receipts; but not given to him any rent paid receipts. It is also answered that he knows that in the year 1970, what nature of transaction held in between Marappa Reddy, Muniraju and Annaiah about the suit survey number. He further answered that he does not know whether the arbitration award is registered in the Sub-Registrar Office or not and it is also stated that the Muniraju himself given a information that according to 29 O.S. No.25452/2010 decree he is a tenant. But, he does not know according to the decree Muniraju had perfected a adverse possession over the suit survey number and the same is mentioned in the decree, etc. In para No.2 of the Page No.7 P.W.1 answered that advocates by name Nandish and Giridhar have given a sale consideration before executing the sale deed and arbitration award is passed on 15.6.73; but during that period he was not born. Further he stated that he has not obtained the copy of the award of arbitration. It is also stated by the P.W.1 that according to the Ex.P.1 his advocate was advised to him to purchase the suit survey number and he does not know from how many years Muniraju was in a adverse possession of suit survey number and it is also stated that as per the regrant order dated 31.11.1966 the suit survey number was regranted to Marappa Reddy and according to Ex.P.2 the said land was in possession of Marappa Reddy. It is P.W.1 admitted that Annayyappa, Muniraju and Mohammed Ghouse had given a representation by stating that they become a adverse possessor of the said suit survey number. He denied that Annayya, Muniraju, Marappa Reddy by 30 O.S. No.25452/2010 collusively filed a AC case; but he does not know that the HRC cases filed before the concerned Small Cause Court of Bengaluru City and the same are dismissed.
18. It is also P.W.1 admitted that he does not know how many years back a house was constructed in suit survey number, wherein situated a mud wall house and Mangalore tiles roof. Further he answered that he does not know who were residing in the suit house situated in suit survey number. It is also he stated that in the year 2007 when the application was submitted by the plaintiff to the Revenue Officer of BBMP, the defendant unauthorisedly entered in the suit house; but he has not lodged any complaint against the Annayya and Muniraju etc., and both the Muniraju and Annaiah had not discussed with their lawyer about the progress of the HRC cases.
19. P.W.1 it is also stated that in HRC cases, the elder brother of Marappa Reddy by name Annaiah, advocate and his GPA holder were present and Marappa Reddy is his grandfather and he has stated that Sy.No.78 is measuring 2 acres, he does not know what is the reference given about the suit schedule property 31 O.S. No.25452/2010 and orders made about the same that in public auction Sarasamma, Ammayamma and their daughters and defendants were entered in the said property. It is further stated that Sarasamma, Ammayyamma and children of defendants are not having a contact with him. In total in the cross-examination answers of the P.W.1 it is specifically stated that plaintiff has perfected a title over the suit schedule property including the suit Sy.No.31/3, therein the above said Sy. No., there is a old house measuring about East to West: 30 ft., and North to South: 20 ft. But, it is denied the very defence taken by the defendant that he become the owner by adverse possession of the suit schedule property etc. However, the counsel for the defendant in order to establish the case of defendant by drawing a attention of this court towards the above discussed cross- examination answers, he tried to convince to this court by relying on the following citations, which will help to the defendant's case. The counsel for the defendant relied on the following citation:-
1) AIR 2014 SC 937, Union of India and others v/s Vasavi Co-
operative Housing Society Ltd., and others. In the above said citation the Hon'ble Supreme Court of India held in para No.15 of 32 O.S. No.25452/2010 the judgment that; The legal position, therefore is clear that the plaintiff in a suit for declaration of title and possession would succeed only on the strength of its own title and that could be done only by adducing a sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of the establishment of plaintiff's own title, plaintiff must be not suited. On the point of arbitration for which the plaintiff is claiming that as per the award of arbitration, the plaintiff become a original owner and title holder of the suit schedule property. In order to substantiate the above said point, he further relied on the following citations with a contention that the said arbitration award is not registered and the same does not establish the title of the plaintiff over the suit schedule property. With regard to this, he relied on AIR 1970 SC 833 and another citation AIR 1989 SC 923 Lachhman Das v/s Ram Lal and another. In the above said both the citations it is observed by the Supreme Court of India that; Award becomes invalid under Section 30 (c) of the Arbitration Act, when affecting the 33 O.S. No.25452/2010 immovable property of value of more than Rs.100/- cannot be looked into by court for pronouncement upon the award on the application submitted under Section 14 of the Arbitration Act, unless the award is registered. Even in the above said citation AIR 1989 SC 923 it is also discussed on the provision of Section 49 that according to the above said provision, the award cannot be received as a evidence of any transaction affecting immovable property or conferring power to adopt, unless it is registered. In that view of the matter, no judgment upon the arbitration award could have been pronounced upon the unregistered award. Even the counsel for the defendant relied on the citation of our own Hon'ble High Court of Karnataka ILR 1996 KAR 333, Bhoop Singh v/s Ram Singh Major, in which the citation also comparatively having same opinion of the lordships of the High Court about the above discussed point observed in the above said Supreme Court judgment; i.e., on the point of registration of the award of arbitration. The counsel for the defendant drawn my attention towards the point of execution of power of attorney, which is alleged unregistered power of attorney executed by the 34 O.S. No.25452/2010 Muniraju in favour of Marappa Reddy, relating to that point relied on AIR 2003 SC 1391 Manjunath Anandappa @ Shivappa Hanshi v/s Thammanasa and others. In the above said citation it is observed that unregistered GPA executed in favour of anybody could not execute the registered deed of sale in their favour. With the help of the above said citations, the counsel for the defendant relied on Section 17 (e) of the Registration Act by stating that non- testamentary instruments transferring or assigning any decree or order of court or any award, which operates to create, declare, assign, limit or extinguish in the present or in future, any right, title or interest, whether vested or contingent, of the value of Rs.100/- and upwards to or in immovable property. It is further relied by the counsel for the defendant upon the proviso of the above said Section, it is also observed that only applies relating to leases executed in any District or a part of District, the terms granted by which do not exceed 5 years and annual rent reserved by which do not exceed Rs.50/-. Section (e) was added by the Amendment Act 48/2001 with effect from 24.9.01. The counsel for the defendant further argued that the Marappa Reddy had no right to execute a 35 O.S. No.25452/2010 registered sale deeds in favour of the plaintiff, wherein on behalf of the Muniraju, thus the sale deeds executed under Ex.P.10 to P.15 are void. Therefore, plaintiff cannot derive any right and title over the suit schedule property on the strength of the documents that non-registration of the arbitration award under Section 14 of the Arbitration Act, which has to be signed and filed in the court also was necessary; but the same was not complied. Therefore, the plaintiff cannot claim the right and title over the suit property; i.e., suit survey number and other properties like house etc., situated in the same.
20. The counsel for the plaintiff drawn my attention towards the cross-examination answers of D.W.1 and D.W.2 to establish the case of that plaintiff is a owner of the said property and having a valid right and title and he is entitled for claiming the possession from the defendant and to disprove the claim of defendant adverse possession claimed over the suit schedule property. In the cross- examination of the D.W.1 he stated that originally he is from a native of Bhooramathanahalli, and he is residing with his family members in house situated in 4th Cross, in Sy.No.78, J.C.Nagar, 36 O.S. No.25452/2010 Sonnappa Block, Bengaluru, from the year 1982 along with his wife and children and he has given his residential address also as his house situated nearest Anjaneya Temple, Marappa Garden, Sonnappa Block, 4th Cross, Bengaluru-46, and he is a driver by profession; his wife name is K.Vijaya and she is doing household affairs and he knows one Muniyappa, who is a son of his wife younger mother and the name of wife of Munegowda is Jayalakshmi; they had given a representation on 09.10.2007 to the Revenue Officer of BBMP by submitting application as per Ex.P.17 and P.18 and he can identify the signature of his wife Vijaya and Jayalakshmi and they have stated the matter of applications to him. D.W.1 further answered in his cross- examination that the address mentioned in application is No.78, Sonnappa Block and even in the Ex.P.8 Notice also the same address is given. D.W.1 further answered that in his affidavit also mentioned the same address. Further he stated that it is written in Ex.P.18 that he himself and his wife and Jayalakshmi and others are residing since longer time in Sy.No.78, Sonnappa Block, Marappa Garden. It is further stated that they are residing since 37 O.S. No.25452/2010 more than last 60 years; the family of Munegowda, Jayalakshmi, Irudianathan, Lawrence, also are residing in the same from the above said period and he does not know that the cases were filed against her mother-in-law and the matter of petition submitted by his wife Jayalakshmi, Annaiah, Muniraju, as per Ex.P.18.
21. He admits that the above said No.78 is the Survey number; it is not a number of house. They are residing in a property measuring North to South: 128 feet and East to West: 104 feet, in which a house is built up into 40 x 20 feet. Further he answered that he does not know the boundaries of the said house and he does not know the name of the owner of Sy.No.78; when the above said house was constructed by Byrappa and who had given a permission to the Byrappa for construction of the house and also he stated that he does not know the daughter of Byrappa by namely Ammayamma, w/o.Kempanna was earning how much income by her coolie work. It is further he stated that since last 40 years they are residing in the suit house, which is not having a connection of water, electricity, etc. It is further he stated that he himself and his wife is residing with his mother in law after their 38 O.S. No.25452/2010 marriage. It is also he admitted that no any documents are executed about the suit house property in favour of his mother-in- law by way of executing any title deed, gift deed, Will, etc., and also he stated that he does not know that the other daughters of the Ammayyamma had executed a consent deed to her. It is further he stated that he has not purchased the said property and it is not given to anybody for rent. Further it is he stated that he does not know about the khatha of the house changed and standing in whose name. It is also stated that he does not know whether the tax of the house is paid to concerned BBMP or not and also does not know which type of documents are with him relating to the suit house to establish that he is residing by having a proper authorization etc. Thus, the D.W.1 even though in the chief-examination tried to establish his adverse possession with the above said his documents by stating that he himself and his family members have established the adverse possession against the plaintiff; but, in the above discussed cross-examination of the D.W.1, he stated very peculiarly that he has not having any documents like a title deed, gift deed, etc., executed in favour of his mother-in-law for showing 39 O.S. No.25452/2010 that they acquired the house property through the same deeds with the consent of the owner of the said house about 4 decades back and paying the tax etc., from the above said longer period till today or getting the rent of the said property from somebody etc. Even if taken into cross-examination of the D.W.2, she has also given a same evidence as to that of D.W.1 regarding the documents Ex.P.17 and P.18. It is also she answered that she does not know the house numbers of Shankarappa, Ashwathnarayan, Honnappa, Irudianathan, David, Papamma and the house of his mother and further she answered that she does not know the Annaiah and Muniraju who had filed a case against her mother. She admits that she herself and Jayalakshmi had submitted a application to the Revenue Officer of BBMP by objecting the khatha number was changing in the name of plaintiff; but she did not got confirmed what the order was passed by the BBMP. She has further stated that she does not know who were the owners of the Sy.No.78 and identified the house constructed by the Byrappa including their mother was residing in it and also nature of suit house having no water connection and electricity connection and it was being a mud 40 O.S. No.25452/2010 house etc. D.W.2 stated that since last 60 to 70 years the defendants and others are residing in the house situated in suit survey number. D.W.2 also stated that after the death of her mother, she herself and her husband were residing in the house situated in suit survey numbers near about 3 to 4 years back. Thereafter, they had gone to Chinnappa Garden. She also stated that like a defendant neither their mother nor herself are having any title deeds or registered documents to show that the title of their house came to them and the same is entered in the revenue khatha on the basis of any deed like Will, sale etc. With the above discussed cross-examination of the D.W.1 and D.W.2 the counsel for the plaintiff vehemently argued that the defendants have utterly failed to establish their adverse possession over the suit schedule property. Only they have produced the ration cards, election ID cards and voters list etc., for claiming the adverse possession coupled with their oral evidence. But, no any documents like Will, agreement of sale or any other registered documents are produced to show that they have obtained the possession of the suit schedule property about 60 to 70 years back and the defendant continued the 41 O.S. No.25452/2010 same in it as a person of having a adverse possession. Even defendant has not produced any tax paid receipts or any other documents to show that he is in authorized legal possession of the suit schedule property and which is adverse to the plaintiff, who are the owner of the suit schedule property etc. On this point, counsel for the plaintiff relied on following citation:-
1) 1990 (3) KLJ (Supp) Page No.283 (HC).
2) KLJ 1990 (1) Page No.402.
3)KLJ 1990 Page No.497 (HC).
4) AIR 1992 KAR Page No.270.
5) AIR 1987 Kerala Page No.42.
6) 2004 (10) SCC 779 in the case of Karnataka Board of Wakf v/s Government of India.
7) AIR 2006 (7) SCC 570.
8) AIR 2007 SC 1753.
9) AIR 2008 SC 346.
10) AIR 2009 SC (Supp) 690. In this case the Supreme Court has held as under 42 O.S. No.25452/2010
"(A) Plaintiff's claim that the suit land was given by him on lease to Defendant for cultivating the same - Defendant claimed ownership by Adverse possession and denied being cultivating under Plaintiff - Suit was not for eviction of cultivating tenant - Mere Denial of title of the Plaintiff by Defendant would not mean that only authorities under Act will have Jurisdiction - Civil Suit Maintainable.
(B) Plaintiff had title and she only wanted possession - she was entitled to sue for possession to evict defendant, a 'trespasser' -
Mere claim by defendant that he has perfected his title by adverse possession - would not imply that there is serious doubt as to title of the Plaintiff - no need for plaintiff to make prayer for declaration of title as well - suit for mere possession was maintainable.
(C) Limitation Act (36 of 1963), Adverse possession - Suit for possession - Plaintiff's Case that Defendant claimed that he had perfected his title by adverse possession - no evidence to show that such possession was hostile possession - Mere 43 O.S. No.25452/2010 possession for some years by Defendant would not be sufficient to claim adverse possession."
After going through the all the above discussed citations therein lordships of various Hon'ble High Courts and the lordship of the Hon'ble Supreme Court relating to the point adverse possession therein held that the person, who are claiming adverse possession shall fulfill the ingredients of that he is being in possession of the suit schedule property, since the statutory period from more than 12 years knowingly to the owner of the property without anybody interruption of owners. Then only the adverse possession can be claimed by the person. In the present case in hand, no doubt number of election ID card, ration card and voters list are produced by the defendant. In all the documents, it is mentioned that the defendant and his family members are residing in a suit house property situated in Sy.No.78 of Marappa Garden, Sonnappa Block, Bengaluru, like some others situated in the above said suit survey numbers. The question before the court is that the suit schedule property is not given to the defendant knowingly to the plaintiff as a permissive tenant or by way of any deed like 44 O.S. No.25452/2010 agreement of sale or Wills, sale deed etc. In this connection, D.W.1 and D.W.2 have categorically answered that the Byrappa or the mother of D.W.2 have not acquired the suit schedule property under the above said deeds. Under such circumstances, it is a very answer given by the D.W.1 is creating doubt about that he has established the adverse possession over the suit schedule property knowingly to the owner of the suit schedule house and his mother- in-law also was staying in the same knowingly to the house of the plaintiff/owners of the house property without any interruption of the owners of the same. In total, it is appearing that the defendant has not established the adverse possession over the suit schedule property. Therefore, I would like to say that the above stated citations relied by the counsel for defendant not aptly applicable to the defence taken by the defendant in the present case in hand. On the other hand, on going through the oral evidence of P.W.1 and documentary evidence of plaintiff including the above discussed some of the admissions given by D.W.1 and D.W.2 in favour of plaintiff that they themselves had no knowledge about that who were the owners of the suit schedule property when the Byrappa 45 O.S. No.25452/2010 constructed the mud suit house and after that who become the owners for the same etc. Therefore, the above said very citations relied by the plaintiff's counsel are aptly applicable to the case of plaintiff. For the above discussed reasons, it is a case of plaintiff that he has successfully proved the title over the suit schedule property, which is derived from the Marappa Reddy in favour of the plaintiff under the different 6 sale deeds and he become a absolute owner of the suit property as pleaded in the plaint and also proved the unauthorized possession of the defendant over the suit schedule property. Hence, I would like to answer issue No.1 in favour of the plaintiff as a Affirmative and issue No.7 against the defendant as a Negative.
22. ISSUE No.4: The burden of proving this issue lies upon the defendant; but, it does not require a detailed discussion. The above said issue was framed by my Predecessor, since in para No.22 of WS of the defendant contended that all the children and grandchildren of the Ammayyamma, who is the defendant's mother-in-law and some other persons residing in their houses situated in Sy.No.78. As such, the suit of the plaintiff is not 46 O.S. No.25452/2010 maintainable for non-joinder of the necessary parties. It is pertinent to note that, when a particular cause of action arises in between the parties; i.e., particularly to the plaintiff, who will be owner of the property for ejecting the illegal occupant of the suit schedule property; then the question of making a necessary parties to all the occupants of the above said survey numbers will arises. But, no such any dispute and cause of action arisen in between the plaintiff and other residents of Sy.No.78 are forthcoming in this case. Therefore, there is no need of making any parties to this suit as a necessary parties. Hence, I would like to say that the defendant has failed to prove the issue No.4. For the above discussed reasons, I answer to this issue also against the defendant as a Negative.
23. ISSUE No.6: That the burden of proving this issue also lies upon the defendant. The said issue is framed for the contention taken in para No.23 of the WS of defendant. This matter is to be looked into with the provision of Article 65 of the Indian Limitation Act and the defendant came into possession of the property. According Ex.P.9 and Ex.D.13 defendant's wife, and her 47 O.S. No.25452/2010 sister, others admittedly all were living in those house. The plaintiff is now claiming a possession of immovable property based on the title and the defendant has failed to prove their statutory possession of 12 years over the suit schedule property as above discussed. However, only on the basis of the some of the documents placed by the defendant for establishing their adverse possession on the strength of ration card, election ID card, etc., from the period of 1992 to till filing the suit including the contention taken very long back in the year 1977. The Predecessor of defendant constructed a mud house relating to defendant does not give a scope for coming to conclusion that the possession of the defendant adversed to the plaintiff. About this fact I would like to analyze that both the witnesses D.W.1 and D.W.2 have not stated that how the Byrappa has obtained the permission and constructed the mud house with the consent of the owner of the suit schedule property. Therefore, limitation under Article 144 of the Indian Limitation Act, which speaks that the owner of the particular property, who is going to claim a possession of the immovable property based on the title, the burden will shifts upon the person 48 O.S. No.25452/2010 claiming the possession and on the other hand, the burden of proving adverse possession of the defendant over the suit schedule property shift upon the defendant to prove the ingredients of the adverse possession. The limitation for possession starts when the period of limitation of 12 years starts under Article 65 from the date of defendant possession become a adverse, which is not successfully proved by the defendant in this suit. Hence, I answer this issue also against the defendant as a Negative.
24. ISSUE No.2 & 3: That the burden of proving both issues lies upon the plaintiff. In issue No.1 and 7 categorically discussed about the interference of the defendant, which is ultimately held that the possession of the defendant like some others residing in Sy.No.78 is their unauthorized possession and the very defence taken by the defendant claiming the adverse possession over the suit property either in WS or affidavit evidence are sufficiently disclosing the interference of the defendant caused to the plaintiff. However, the plaintiff is not entitled for the permanent injunction; because the possession of the suit schedule property is being with the defendant, the same is admitted; 49 O.S. No.25452/2010 therefore, this suit which is filed for seeking the possession of the suit schedule property from the defendant. Then the question of granting a permanent injunction against the defendant as not to interfere with the possession of the plaintiff over the suit schedule property does not arise. Therefore, I would like to answer issue No.2 in favour of the plaintiff Affirmative and issue No.3 against him as a Negative.
25. ISSUE No.5: This issue is arisen when the defendant raised a contention in his WS that the court fee paid by the plaintiff for the relief of declaration and consequential relief of possession of the suit schedule property is valued and court fee of Rs.1,000/- paid under the provision of Section 24 (d), which is not correct. Therefore, the burden of proving this issue even though shifts upon the defendant, it is not only responsibility of the defendant to bring the notice of the court; on the other hand it is the duty of the court also to verify the value of the property for the purpose of calculating the correct court fee, which is to be collected for the revenue of the state and necessary for passing order to pay the same. In this regard, the counsel for the plaintiff relied on AIR 50 O.S. No.25452/2010 1987 SC Page No.2085 by stating that in the suits for declaration with the consequential relief, the valuation by the plaintiff is ordinarily to be accepted both for the purpose of court fee and jurisdiction, in cases where it appears to the court that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court can examine the valuation and revise the same. The above said very citation itself gives a discretion to court for examining the valuation of the suit schedule property and revising the same for the purpose of deciding and making a direction to the plaintiff to pay the proper court fee, wherein the plaintiffs makes a wrong calculation of valuation of the suit property and go to pay the less court fee. This suit filed by the plaintiff is for a declaration of title about the suit schedule immovable property bearing khatha No.31/3, in Old Sy.No.78, (Marappa Garden) BBMP Ward No.92, which is measuring 70 ft. East-West and North-South 114.3 ft., total measuring 8,001 sq.ft., and seeking a relief of possession of the built up old house, measuring 30 ft. x 20 ft., from the defendant out of the above said property, for which plaintiff has to pay the court fee under Section 51 O.S. No.25452/2010 24 (a). By looking to the measurement of the above said suit schedule property and taken into consideration the Book of MJS Publications complied by B.Ravindran, Advocate and Tax Consultant, with effect from 13.11.2014, which is written for the estimated market value of the immovable properties and buildings for 42 Sub-Registrar's Offices of Bengaluru (Urban) District, the above said property which comes within the area of the Marappa Garden, which is a residential sites coming under the BBMP, in Page No.544 and 545 of the above said book a valuation per sq. ft. of the property situated in Marappa Garden, Bengaluru, is Rs.2,900/-, which is to be multiplied with total sq. ft. 8,001, for which the plaintiff had filed this suit for declaration and consequential relief of possession as mentioned in the suit schedule, then the valuation of the suit property becomes for Rs.2,32,02,900/- for which the court fee becomes Rs.3,23,139.50, the same is to be recovered from the plaintiff. Hence, I would like to answer this issue in favour of the defendant as a Affirmative.
26. ISSUE No.8: In view of findings given to issues No.1 to 7, I proceed to pass the following:-
52 O.S. No.25452/2010
ORDER.
Suit of the plaintiff is hereby decreed without costs.
It is declared that the plaintiff is the absolute owner of the suit schedule property measuring 70 ft. East-West and North-South 114.3 ft., total measuring 8,001 sq.ft., and further it is directed to the defendant to hand over the possession of the old house, situated in suit schedule property; i.e., which is in the Southern portion of the land Sy.No.78 and khatha No.31/3 mentioned in sketch, which is measuring 30 ft. East-West, 20 ft. North- South to the plaintiff within 3 months from the date of decretal of this suit.
It is further ordered that if the defendant failed to hand over the possession of the suit schedule property as directed by this court, the plaintiff is entitled to approach the court of law for recovery of the possession of the suit schedule property from the defendant as provided under the provision of law.
Office is hereby directed to recover the deficit court fee from the plaintiff Rs.3,23,139.50- Rs.1,000/-=Rs,3,22,139.50 and further directed that 53 O.S. No.25452/2010 the decree of this judgment shall not be drawn until payment of deficit court fee by the plaintiff. If, not paid the same, the office shall forward the copy of this judgment to the Deputy Commissioner of Bengaluru (Urban) by making intimation to recover the deficit court fee from the plaintiff as per law.
Draw the decree accordingly.
(Dictated to the Stenographer, thereof corrected and then pronounced by me in the open court on this the 22nd day of July, 2016).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witness examined for the plaintiff:
P.W.1 - Sri.M.S.Kaushik List of documents exhibited for the plaintiff:
Ex.P.1 - Copy of decree in A.C. No.10013/1983
Ex.P.2 - C/C of GPA
Ex.P.3 - Copy of conversion certificate
Ex.P.4 - Copy of order of Special Deputy
Commissioner granted occupancy right
of lands
Ex.P.5 - 33 Tax paid receipts
Ex.P.6 - Notice of BBMP
54 O.S. No.25452/2010
Ex.P.7 - Certificate of BBMP
Ex.P.8 - Notice
Ex.P.9 - Reply
Ex.P.10 to 15 - Six sale deeds
Ex.P.16 - Copy of acknowledgement of Suvarna
Khatha
Ex.P.17 - Copy of letter to ARO of BBMP
Ex.P.18 - Letter to Commissioner of BBMP
Ex.P.19 - Copy of letter to ARO by plaintiff
Ex.P.20 - Uttara pathra
Ex.P.21 - Copy of notice of Suvarna Khatha
Ex.P.22 - Khatha certificate
Ex.P.23 - Khatha extract
Ex.P.24 - Notice
Ex.P.25 - Postal acknowledgement
Ex.P.26 - Reply
Ex.P.27 - Copy of the proceedings of the BBMP
relating to transfer of khatha
Ex.P.28 - 7 Photographs
Ex.P.28 (a) - CD
Ex.P.29 - Hand sketch
List of witnesses examined for the defendant:
D.W.1 - Sri.B.V.Srinivas
D.W.2 - Smt.Jayalakshmi
List of documents exhibited for the defendant:
Ex.D.1 to 4 - Four Aadhaar cards
Ex.D.5 - Gas book
Ex.D.6 - Ration card
Ex.D.7 - Marriage invitation card
Ex.D.8 to 10 - Electoral ID cards
Ex.D.11 - Death certificate
Ex.D.12 - Birth certificate
Ex.D.13 - Copy of notice
Ex.D.14 - Voters' list
55 O.S. No.25452/2010
Ex.D.15 - Voters' list book
Ex.D.16 - C/C of GPA
Ex.D.17 - C/C of HRC No.638/1992 order
Ex.D.18 - Ration card
Ex.D.19 - Gas application
Ex.D.20 - Electoral ID card
Ex.D.21 - Death certificate
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
56 O.S. No.25452/2010
57 O.S. No.25452/2010