Bangalore District Court
Bulla Hymavathi vs Neelamma on 6 January, 2025
KABC0A0031582017
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 6th day of January, 2025.
PRESENT:
Sri BALAPPA APPANNA JARAGU, B.Sc., LL.M.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.26104/2017
C/W
ORIGINAL SUIT NO.26612/2013
O.S.NO.26104/2017
PLAINTIFF : Smt. Bulla Hymavathi,
W/o. Penumaka Varaprasad,
Aged about 46 years,
Residing at No.14 Chiguru
3rd Cross, Ayyappa Layout,
Marathahalli,
Bangalore - 560 037.
(By Sri K.N. Purushothaman, Advocate)
-VERSUS-
Cont'd..
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O.S.No.26612/2013
DEFENDANTS : 1. Smt. Neelamma,
W/o. Nanjunda Reddy,
Aged about 74 years,
(Since deceased, the LRs of the
defendant No.1 are already on
record as defendant No.3 to 7)
2. Nanjunda Reddy,
S/o. Late Papiah Reddy,
Aged about 79 years,
(Since deceased, the LRs of the
defendant No.2 are already on
record as defendant No.3 to 7)
3. Smt. Vanamala,
D/o. Nanjunda Reddy,
W/o. Krishna Reddy.
4. Smt. Geetha,
D/o. Nanjunda Reddy,
W/o. Babu Reddy,
Aged about 52 years.
5. Smt. Rani,
D/o. Nanjunda Reddy,
W/o. Manohar Reddy,
Aged about 50 years.
6. Smt. Savithri,
D/o. Nanjunda Reddy,
W/o. Suresh,
Aged about 48 years.
7. N. Thiruvendra Reddy,
S/o. Nanjunda Reddy,
Aged about 46 years.
All the above residing at No.136,
C/o. Smt. Neelamma,
Doddanakkundi Village,
Bangalore East Taluk,
Bangalore - 560 037.
(D.1 and D.2 : Dead)
(D.3 to 6 by Sri K.M.,Advocate)
(D.7 - Ex-parte)
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O.S.No.26612/2013
---------------------------------------------------------------------
Date of Institution of the Suit : 06-10-2017
Nature of the Suit (Suit on : Declaration & Injunction Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 30-07-2019
of recording of the evidence
Date on which the Judgment : 06-01-2025
was pronounced
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Year/s Month/s Day/s
----------------------------------
Total duration : 04years, 03months, 00days.
---------------------------------------------------------------------
O.S.NO.26612/2013
PLAINTIFF : Smt. Bulla Hymavathi,
Aged about 42 years,
W/o. Penumaka Varaprasad,
Residing at No.14 Chiguru
3rd Cross, Ayyappa Layout,
Marathahalli,
Bangalore - 560 037.
(By Sri A.P. Thammaiah, Advocate)
-VERSUS-
DEFENDANT : M. Venkatesh,
Aged about 49 years,
S/o. Muniyappa,
Residing at No.103, 4th Cross,
10th Main, Indiranagar 2nd Stage,
Bangalore.
(Ex-parte)
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O.S.No.26612/2013
---------------------------------------------------------------------
Date of Institution of the Suit : 11-10-2013
Nature of the Suit (Suit on : Declaration & Possession Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 25-03-2017
of recording of the evidence
Date on which the Judgment : 06-01-2025
was pronounced
---------------------------------------------------------------------
Year/s Month/s Day/s
----------------------------------
Total duration : 11years, 02months, 25days.
---------------------------------------------------------------------
(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
COMMON JUDGMENT
The suit in O.S.No.26612/2013 is instituted by
the plaintiff against the defendant for relief of
declaration to declare, plaintiff is an absolute owner of
suit schedule property and plaintiff has sought for
vacant possession of suit property from defendant.
Plaintiff further sought for mandatory injunction,
directing defendant to demolish unauthorized
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O.S.No.26612/2013
construction put up by him over suit property which
was under wrong identification of property. The plaintiff
also sought for permanent injunction, restraining the
defendant from putting any further construction on suit
property unauthorizedly.
Likewise suit in O.S.No.26104/2017 is filed by
plaintiff against defendants for relief of declaration to
declare, plaintiff is an absolute owner of suit schedule
property. Plaintiff further sought for vacant possession
of suit property from defendants, their agents or tenants
or anybody claiming under them. The plaintiff further
sought for mandatory injunction, directing defendants
to remove illegal sheds or structure put up on suit
property.
2. Case of plaintiff in brief in
O.S.No.26612/2013 is as under :-
That, plaintiff having purchased suit schedule
property under sale deed dated 28.03.1994 she become
absolute owner of the same. Smt. Neelamma W/o.
Nanjuda Reddy and other 6 persons through their
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O.S.No.26612/2013
registered power of attorney holder Sri Ramaiah Reddy
sold suit property in favour of plaintiff. Since date of
purchase, plaintiff is in lawful possession and
enjoyment of suit property and she is paying taxes
pertaining to suit property to concerned authorities.
Earlier, suit property comes within limits of
Mahadevapura CMC and now it is within limits of
BBMP. On Southern side of suit property, there is
service road formed by BDA. Recently, on Southern side
of suit property, defendant put up construction
measuring 15 X 20 feet on suit schedule property
unauthorizedly. The defendant has taken law into his
hands and put up construction recently claiming he
purchased portion of suit property under sale deed
dated 22.05.2003. Defendant has not obtained any
license or plan to put up construction. Constructed
area is part and parcel of property of plaintiff. Said fact
brought to notice of defendant and he was kept on
saying he will vacate and hand over vacant possession
of suit property to plaintiff. Now, defendant is
challenging authority of plaintiff, her right, title and
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O.S.No.26612/2013
interest over portion of property on which he put up
unauthorized construction. Hence, the plaintiff has filed
present suit for appropriate relieves as prayed in the
plaint.
3. Even after service of suit summons, the
defendant not tendered his appearance before the Court
through his counsel and contested the case,
consequently, he was placed ex-parte.
4. Based on plaint averments and documents
available on record, following points arises for my
consideration:-
POINTS IN O.S.NO.26612/2023
1. Whether plaintiff proves that, she is
absolute owner of suit schedule
property?
2. Whether plaintiff further proves that,
defendant unauthorizedly encroached
suit schedule property and put up
structure over it?
3. Whether plaintiff further proves that,
defendant is under obligation to hand
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O.S.No.26612/2013
over vacant possession of suit property
to her?
4. Whether plaintiff is entitled for the
relief as prayed for?
5. What order or decree?
5.Case of plaintiff in brief in
O.S.No.26104/2017 is as under:
That, plaintiff purchased site No.A-19, HASB
Khata No.391/1, situated at Doddanakkundi Village,
K.R.Puram Hobli, measuring to an extent of 60X40 feet
under registered sale deed dated 20.03.1994 executed
by power of attorney holder of defendants namely Sri
Ramaiah Reddy. Said site was formed as part of a layout
formed by defendants in land bearing Sy.No.39/4 of
Doddanakkundi Village measuring 2 acres 29 guntas.
The defendant No.1 got Sy.No.39/4 under Will executed
by her mother. The power of attorney holder of
defendants, Sri Ramaiah Reddy developed layout in
Sy.No.39/4 and suit site was sold in favour of plaintiff
by him. After purchase, plaintiff got entered her name
to suit property in local authorities and later on suit
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O.S.No.26612/2013
property come within limits of Bangalore Corporation.
In the year 2013, one Venkatesh who was purchaser of
site No.C-19 in same layout encroached upon portion of
property of plaintiff to an extent of 300 sq.ft., towards
BDA Ring Road and constructed building on encroached
area. Defendants No.1 and 7 attempted to encroach suit
property of plaintiff. The plaintiff filed suit for
permanent injunction against defendants in
O.S.No.26677/2013, in said suit defendant No.1
appeared and filed written statement. During pendency
of said suit, on 06.02.2015, the defendants No.1 and 7
encroached upon suit property and put up temporary
sheds on suit site. Thereafter, plaintiff filed application
for amendment in O.S.No.26677/2013 to include prayer
of possession and consequential mandatory injunction
to remove encroachment. It was found that, pleading in
said suit not sufficient, as such plaintiff filed application
seeking permission to withdraw suit with permission to
file fresh suit on same cause of action. In written
statement filed by defendant No.1 in
O.S.No.26677/2013 taken fraudulent contention to
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O.S.No.26612/2013
deny formation of layout on her land bearing
Sy.No.39/4 of Doddenkkundi Village, K.R.Puram Hobli
with help of their registered power of attorney holder
Ramamiah Reddy. Further, defendant No.1 has denied
existence of suit site and sale of suit property in favour
of plaintiff through her power of attorney holder. The
defendant No.1 has further contended about revocation
deed dated 27.02.2006. The defendants have
fraudulently encroached upon suit property during
pendency of suit. On these grounds, it is requested to
decree the suit as prayed in plaint.
6. In pursuance of service of suit summons, the
defendants No.1 to 6 have tendered their appearance
before the Court through their counsel and contested
the case. During pendency of suit, defendant No.1 and 2
died, their LR's are already on record as defendants
No.3 to 7. Even after service of suit summons, the
defendant No.7 not tendered his appearance before the
Court through his counsel and contested the case,
consequently, he was placed ex-parte.
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O.S.No.26612/2013
7. The defendants have filed their written
statement contending that, suit of the plaintiff is not
maintainable either in law or on facts, same is liable to
be dismissed. Plaintiff does not have any manner of
legal right and she has no locus-standi to institute
present suit against defendants. Plaintiff has not
approached court with clean hands. It is denied that,
defendants have formed layout in Sy.No.39/4 of
Doddanekkundi Village and it is also denied plaintiff
purchased suit site bearing No.A-19 measuring 40 X 60
feet through GPA holder of defendants. These
defendants never formed layout in said survey number
and sold it to plaintiff. The defendants not owned site
No.A-19, question of giving GPA as alleged in plaint in
favour of Ramaiah Reddy does not arise. Ramaiah
Reddy was not GPA holder of defendants to sell site
No.A-19 to plaintiff. It is further contended, Sy.No.39/4
is an agricultural property till today. Said property is
not converted either into residential or commercial
purpose. No layout is approved by any authority. Non-
existing alleged site claimed by plaintiff does not exist
12 O.S.No.26104/2017
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O.S.No.26612/2013
and no rights accrued to plaintiff by virtue of illegal and
concocted document. It is further contended,
defendants have put up permanent structure on their
property bearing Sy.No.39/4 several years ago and
defendant No.1 gifted major portion of property to her
daughters who are in their respective possession.
Alleged site as alleged by plaintiff does not exist in
property of defendants. It is also contended that,
defendants never executed GPA in favour of Ramamiah
Reddy to sell suit site No.19 and alleged GPA is only to
look after property of defendants in lawful manner in
accordance with law. When Ramaiah Reddy failed to
protect interest of defendants and tried to do illegal acts
with assistance of land grabbers the defendants
immediately canceled GPA. The plaintiff and Ramaiah
Reddy have colluded together and concocted documents
in order to grab valuable property of defendants. The
defendants at no point of time authorized Ramaiah
Reddy to form illegal layout and sell sites. Property of
defendants bearing Sy.No.39/4 does not own HASB
khata. As such plaintiff does not have any manner of
13 O.S.No.26104/2017
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O.S.No.26612/2013
right over any portion of Sy.No.39/4 by virtue of alleged
sale deed. Entire alleged transaction based on illegal
acts and court also restrained from granting relief to
plaintiff upon illegal activities. On these grounds, the
defendants have requested the Court to dismiss the suit
of plaintiff with cost.
8. Based on pleadings on respective parties as
mentioned above and material on record, my
predecessor in office has framed following issues:-
ISSUES IN O.S.NO.26104/2017
1. Whether the plaintiff proves that the he
is the absolute owner of the suit
schedule property?
2. Whether the Plaintiff is entitled for
vacant possession of the suit schedule
property?
3. Whether the Plaintiff is entitled for
mandatory relief of injunction?
4. What order?
ADDITIONAL ISSUES IN O.S.NO.26104/2017
1. Whether the Plaintiff proves that on
06.02.2015 the defendant No.1 and 7
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O.S.No.26612/2013
encroached suit property and put up
temporary shed as alleged in para 4 of
their plaint?
2. Whether defendant proves that plaintiff
has locus-standi to file this suit?
3. What order or decree?
9. On perusal of records, as per order dated
23.09.2019 passed in O.S.No.26612/2013, both suits in
O.S.No.26612/2013 and O.S.No.26104/2017 have been
clubbed for recording common evidence for disposal of
both suits.
10. After clubbing of two suits, plaintiff in both
suits in order to prove her cases have examined as
P.W.1 and produced in all 39 documents got marked on
behalf of plaintiff as per Ex.P.1 to Ex.P.39. On the other
hand, defendant No.5 has been examined as D.W.1
and produced 14 documents as per Ex.D.1 to D.14.
11. Heard argument of respective counsels for
the parties, perused the records placed before the
Court.
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O.S.No.26612/2013
12. On consideration of an argument and
documents placed before the Court, my answer to the
above points and issues framed in respective suits
mentioned above are as follows:
O.S.NO.26612/2013
POINT No.1 :- In the affirmative;
POINT No.2 :- In the affirmative;
POINT No.3 :- In the affirmative;
POINT No.4 :- In the affirmative;
POINT No.5 :- As per final order
for the following:
O.S.NO.26104/2017
ISSUE No.1 :- In the affirmative;
ISSUE No.2 :- In the affirmative;
ISSUE No.3 :- In the affirmative;
Addl.ISSUE No.1 :- In the affirmative;
Addl.ISSUE No.2 :- In the negative;
ISSUE No.4 :- As per final order
for the following:
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O.S.No.26612/2013
REASONS
13. POINT No.1 IN O.S.NO.26612/2013 AND
ISSUE NO.1 IN O.S.NO.26104/2017:- As these points/
issues are inter-related to each other and involves
common appreciation of facts and evidence on record,
findings on one issue are bearing on other issues, in
order to avoid repetition of facts and for convenience
sake, all issues are taken together for common
discussion.
14. On careful perusal of averments of plaint, in
schedule to plaint in O.S.No.26104/2017 an extent of
suit property shown as 2400 square feet. Likewise
schedule to plaint in O.S.26612/2013 an extent of suit
schedule property shown as 300 square feet. It is
claimed by plaintiff in both suits that, she purchased
property which is site measuring 60 X40 feet bearing
HASB Khata No.391/1, situated at Doddanekkundi
Village under registered sale deed dated 28.03.1994.
Ex.P.1 certified copy of sale deed dated 28.03.1994.
17 O.S.No.26104/2017
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O.S.No.26612/2013
15. On careful perusal of schedule mentioned in
said sale deed, it is mentioned site No.A-19, HASB
khata No.391/1 measuring 40 X60 square feet, situated
at Doddanekkundi Village, K.R. Puram Hobli,
Bengaluru. Ex.P.2 is certified copy of registered General
Power of Attorney dated 16.11.1992. According to
plaintiff, one Sri Ramaiah Reddy being Power of
Attorney of defendants in O.S.26104/2017 had sold site
No.A-19, as per Ex.P.1 in favour of plaintiff. On perusal
of contents of Ex.P.2 it is mentioned Ramaiah Reddy is
Power of Attorney of defendants in O.S.No.26104/2017.
16. It is material to note here that, defendants in
O.S.No.26104/2017 in their written statement have
specifically contended that, property bearing
Sy.No.39/4 is agricultural property and till today said
property not converted into either residential or
commercial purpose and no layout approved by any
authority. Further it is contended by defendants therein
no layout formed in agricultural property. It is further
contention of defendants therein, site claimed by
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O.S.No.26612/2013
plaintiff does not existed and no rights accrued to
plaintiff by virtue illegal and concocted documents.
17. The defendants have further denied about
execution of sale deed as per Ex.P.1 in favour of plaintiff
as well as denied execution of General Power of Attorney
as per Ex.P.2 in favour of Ramaiah Reddy to deal with
site No.A-19 in Sy.No.39/4 of Doddanekkundi Village in
favour of plaintiff. In para 10 of their written statement,
the defendants have contended, they never executed
any GPA in favour of Ramaiah Reddy to sell site No.A-19
in favour of plaintiff and alleged General Power of
Attorney executed only to look after property bearing
Sy.No.39/4 in lawful manner in according with law. At
no point of time, the defendants have authorized
Ramaiah Reddy to form illegal layout and sell sites
alleged to formed in Sy.No.39/4.
18. On going through contents of written
statement of defendants in O.S.No.26104/2017, they
have completely denied formation of layout in
Sy.No.39/4 of Doddanekkundi Village and also
specifically denied sale of suit site No.A-19 in favour of
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O.S.No.26612/2013
plaintiff as per sale deed - Ex.P.1 by their power of
attorney holder of of Ramaiah Reddy. The plaintiff in
order to substantiate, there was layout formed in
Sy.No.39/4 has much relied on layout plan produced as
per Ex.P.3.
19. It is worth to note here that, defendants are
not in dispute that, original defendant No.1 - Smt.
Neelamma had acquired Sy.No.39/4 of Doddanekkundi
Village, under Will executed by her mother in her
favour. Said document placed before court as per
Ex.D.1(a). The learned counsel for defendants has
argued that, Ex.P.3 alleged layout plan not issued by
any competent authority. On careful perusal of Ex.P.3,
it is very much true, said document not issued by
competent authority. The plaintiff who examined as
P.W.1 in her cross-examination has denied, she has
created Ex.P.3 layout plan for purpose of file present
suit. The P.W.1 has specifically stated in her cross-
examination, she do not know whether Sy.No.39/4 is
converted into non-agricultural purpose or not. She has
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O.S.No.26612/2013
specifically stated, she purchased site No.A-19 in
Sy.No.39/4 measuring 40X60 feet from Ramaiah Reddy.
20. Fact to be noted here, except Ex.P.3 there is
no other document produced by plaintiff to show
Sy.No.39/4 of Doddanekkundi Village is lawfully by
following all procedure established under law has
converted into layout and layout plan in said property
issued by competent authority.
21. The learned counsel for defendants argued
that, in order to convert agricultural land into non-
agricultural purpose permission as provided under
Section 95 of Karnataka Land Revenue Act is
mandatory. Unless and until, there is permission
provided under relevant provision Act, layout plan as
per Ex.P.3 as relied by plaintiff cannot be looked into. It
is further argued by learned counsel for defendants, no
site as claimed by plaintiff formed in Sy.No.39/4 and till
today said land in absence of conversion into non-
agricultural purpose as per provision under Section 95
of Karnataka Land Revenue Act, remained as
agricultural land. The learned counsel for defendants,
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O.S.No.26612/2013
in support of his arguments as relied upon Hon'ble
Supreme Court reported in AIR 1995 SC 234 in case
of State of Karnataka and Others Vs. Shankara
Textiles Mills Limited, wherein it is held that, "The
obvious purpose of this section is to prevent
indiscriminate conversion of agricultural land for non-
agricultural use and to regulate and control the
conversion of agricultural land into non-agricultural
land. Section 83 of that Act provides for different rates
of assessment for agricultural and non-agricultural
land. That Provision strengthens the presumption that
agricultural land is not to be used, as per the holder's
sweet will for non-agricultural purposes. This is also
clear from the absence of any provision under that Act
requiring permission to convert non-agricultural land
into agricultural land. In a country like ours, where the
source of livelihood of more than 70 percent of the
population is agricultural, the restriction placed by the
Revenue Act is quite understandable. Such provision
and restriction are found in the Revenue Acts of all the
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O.S.No.26612/2013
States in the country. The provision has therefore, to be
construed as mandatory and given effect to as such."
22. The learned counsel for defendants has also
further relied upon the decision of Hon'ble High Court
reported in ILR 2006 KAR 4048 in case of John D'
Souza Since Deceased by Lrs Vs. Vijaya Bank and
Others. Another decision reported in ILR 2007 KAR
3602 in case of Pandurang Jivajirao Manglekar
Since deceased by L.Rs. And others Vs. The State of
Karnataka Represented by its Secretary, wherein it
is held that, "The provision of Section 95 of the
Karnataka Land Revenue Act, has to construed as
mandatory and to be given effect to as such. In this
matter, admittedly the land is not converted for non-
agricultural use. If it so, the land continues to be
agricultural land.
23. It is worth to note here that, plaintiff in order
to show suit site formed in Sy.No.39/4 of
Doddanekkundi Village produced khata extract issued
by BBMP as per Exs.P.4 to P.6. In these documents
property number shown as Sy.No.391/1, site No.A-19.
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O.S.No.26612/2013
Encumbrance certificate from the year 1994 to 2004
has been produced as per Ex.P.7. In said document site
No.A-19 shown and survey number mentioned as
391/1. It is further mentioned property was sold by
General Power of Attorney holder of defendants in
favour of plaintiff as per sale deed dated 28.03.1994.
The learned counsel for defendants based on aforesaid
documents submitted as per contents of those
documents site No.A-19 alleged to have been formed in
Sy.No.391/1 which is all together different from
Sy.No.39/4 of Doddanekkundi Village, which belongs to
defendants. In Ex.P.25 to P.28 old PID
No./Khata/Survey No.391/1. It is argued on behalf of
learned counsel for defendants in these documents also
Sy.No.39/4 of Doddanekkundi Village is not mentioned.
24. It is material to note here that, Ex.P.10 is
certified copy of sale deed dated 22.05.2003 which was
executed by C. Ramaiah Reddy being a power of
attorney holder of defendants in favour of defendant in
O.S.No.26612/2013- M. Venkatesh. In said document,
it is clearly mentioned, Ramaiah Reddy is power of
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O.S.No.26612/2013
attorney holder of defendants. The defendants have
contended, they have revoked power of attorney
executed in favour of Ramaiah Reddy on 27.02.2008. In
this regard, the defendants have produced Revocation
Deed of general power of attorney as per Ex.D.1 and
same is produced by plaintiff as per Ex.P.29.
25. The defendants in order to show till today
Sy.No.39/4 remained as agricultural property have
much relied on records of rights produced as per
Exs.D.5 to D.7. In said documents, Sy.No.39/4 to an
extent of 2 acres 29 guntas which is standing in the
name of original defendant No.1 shown as agricultural
land. Ex.P.8 is rights of records of Sy.No.39/4 in said
document it is mentioned 36 guntas out of total extent
of 39/4 acquired by BDA. This fact is also forthcoming
in mutation orders as per Exs.P.9 to P.11.
26. It is material to note here that, plaintiff has
produced certified copy of order sheet in
O.S.No.27023/2009 as per Ex.P.32. Certified copy of
memorandum of agreement under Section 89 of CPC in
said suit has been produced as per Ex.P.33. Certified
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O.S.No.26612/2013
copy of decree and certified copy of plaint in said suit
have been produced as per Exs.P.34 and P.35
respectively. On careful perusal of contents of these
documents, it is undisputed fact and same is clearly
admitted by D.W.1 that, defendants are parties to said
suit instituted by Sri Sai Krupa Construction.
27. In para -6 of plaint in O.S.No.27023/2009
filed by Sri Sai Krupa Construction, it is mentioned, the
defendants were the erstwhile owners of the land in
Sy.No.39/4 situated at Doddanekkundi Village, K.R.
Purma Hobli, measuring 2 acres 29 guntas and
defendants got the land developed into residential
layout in the year 1993 through their registered General
Power of Attorney holder Ramamiah Reddy and sold
sites to different purchasers who are in occupation of
purchased property. As per Ex.P.33 it is mentioned, the
defendants are erstwhile owners of Sy.No.39/4 who had
sold property wherein roads formed and both sides of
roads houses have come up which are constructed by
purchaser of sites.
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O.S.No.26612/2013
28. As already discussed, these defendants are
parties to O.S.No.27023/2009 and they have appeared
before court in said proceedings and entered into
compromise. The defendants in compromise have
clearly admitted, they are erstwhile owners of
Sy.No.39/4 and sold property wherein roads formed and
both sides of roads houses have come up which are
constructed by purchasers of sites. These defendants
have further admitted, they have sold sites to different
purchasers. It is fact that, such compromise in
O.S.No.27023/2009 was entered on 23.03.2010. Such
being terms of compromise entered by defendants in
earlier proceedings which was in between themselves
and Sri Sai Krupa construction, which was much prior
to dispute arose between plaintiff and defendants
herein, now they are restrained from contending till
today Sy.No.39/4 remained as agricultural property. In
view of aforesaid documents and admission of
defendants in earlier judicial proceedings, there exists
sufficient material on records to come to proper and
right conclusion that, power of attorney holder of
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O.S.No.26612/2013
defendants had formed sites in Sy.No. 39/4 and sold to
different persons including plaintiff herein.
29. May be it is true, in Exs.P.4 to P.7 and
Exs.P.25 to P.28 though it is mentioned 391/1, in view
of above admitted facts in O.S.No.27023/2009, it is
sufficiently established till today Sy.No.39/4 of
Doddanekkundi Village belonging to defendants not
remained as agricultural land as contended by them
and facts remains as admitted by defendants, lang back
in year 1992-93 said land was converted into sites by
their power of attorney holder.
30. It is worth to note here that, plaintiff has
produced deed of confirmation, dated 12.05.2008 and
another deed of confirmation dated 24.12.2008 as per
Exs.P.38 and P.39 respectively. On going through recital
of these documents, defendants have executed deed of
confirmation in favour of Sri G. Venkatadri. On further
scrutiny of recital of these documents, defendants
herein have admitted, they have executed registered
GPA dated 16.11.1992 in favour of Ramaiah Reddy S/o.
Chinnappa in respect of immovable property bearing
28 O.S.No.26104/2017
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Sy.No.39/4 of Doddanekkundi Village, K.R.Puram
Hobli, HSBA layout, Bengaluru South Taluk measuring
2 acres 29 guntas. It is not also mentioned by
defendants in deed of confirmation that, GPA holder of
these defendants Sri Ramaiah Reddy formed residential
layout in Sy.No.39/4 and formed sites of different
dimensions. Site No.A-23 and Site No.A-22 are subject
matter of these confirmation deeds.
31. In Ex.P.39 it is clearly mentioned, khata
No.391/1, situated at Doddanekkundi Village. Same
khata No.391/1 is mentioned in sale deed as per Ex.P.1
which is relied by plaintiff in respect of suit site No.A-
19. Said fact supports contents of Ex.P.4 to 9 and
Ex.P.25 to 28 where it is mentioned 391/1 and same is
Khata number given to property after formation of sites.
These deed of confirmation have been executed by
defendants in the year 2008. In the year 2008,
defendants while executing confirmation deed as per
Exs.P.38 and P.39 have clearly admitted sites in
Sy.No.39/4 of Doddanekkundi Village formed by their
power of attorney and sold to purchasers. When HASB
29 O.S.No.26104/2017
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O.S.No.26612/2013
khata No.391/1 is admitted by defendants in Ex.P.39,
now they are estopped from denying HASB khata
No.391/1 in respect of suit site No.A-19 in favour of
plaintiff.
32. It is worth to note here that, the terms of
compromise entered between defendants and Sri Sai
Krupa Construction in O.S.No.27023/2009 and recital
of Exs.P.38 and P.39 deed of confirmation wherein these
defendants have parties to documents have clearly
admitted they have executed registered GPA in favour of
Ramaiah Reddy and said person formed layout and sold
sites itself sufficient to disbelieve version of defendants
that, till today Sy.No.39/4 measuring to an extent of 2
acres 29 guntas of Doddanekkundi Village as
agricultural property. As such contention of defendants,
definitely goes against other own documents executed
as per Exs.P.38 and P.39 as well as terms of
compromise in O.S.No.27023/2009.
33. It is to be noted here that, plaintiff has
produced photos of suit property as per Exs.P.15 to
P.22. The defendant No.5 who examined as D.W.1 in
30 O.S.No.26104/2017
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her cross-examination as deposed, now suit schedule
property come within limits of BBMP. It is further
admitted by D.W.1 as per Ex.P.2 defendants have
executed GPA in favour of Sri Ramaiah Reddy. Said GPA
was executed in the year 1992. The D.W.1 has clearly
admitted as could be seen from photos as per Exs.P.15
to P.22, said property is suit property. On careful
perusal of these photos, it is very much crystal clear
that, suit property or Sy.No.39/4 not remained as
agricultural land as contended by defendants.
34. It is required to be noted here, in Exs.P.4 to
P.7 and Exs.P.25 to P.28 property number shown as
391/1 but it is fact that, suit site No.A-19 exists in
Sy.No.39/4 measuring 2 acres 29 guntas belonging to
defendants. This fact is very much evident from
documents as per Ex.P.32 to P.35 and Ex.P.38 and
P.39. It is not case of defendants that, suit in
O.S.No.27023/2009 in respect of other property, other
than Sy.No.39/4 and to establish same nothing worth
placed on record. It is also not case of defendants, they
have authorised their power of attorney Ramaiah Reddy
31 O.S.No.26104/2017
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to develop land other than Sy.No.39/4. These
defendants in Exs.P.32 to P.35 and Exs.P.38 and P.39
have clearly and unequivocal admitted they executed
power of attorney in favour of Ramaiah Reddy and he
formed layout in Sy.No.39/4 and sold sites. Such being
facts as per documents now defendants cannot turn
around and say as per terms of GPA they have not
authorized their power of attorney to for sites and sell
those sites to purchasers. In view of these facts, it can
very well gathered, even though in absence of
conversion permission from competent authority as
provided under Section 95 of Karnataka Land Revenue
Act, defendants through their power of attorney have
formed revenue sites and sold suit site to plaintiff.
35. If at all, as contended by defendants no sites
were formed in Sy.No.39/4 of Doddanekkundi Village,
and still said land remained as agricultural land, there
was no occasion for defendants to enter into
compromise in O.S.No.27023/2009 and execute deed of
confirmation as per Exs.P.38 and P.39 by admitting
sites in Sy.No.39/4 were formed and sites were sold by
32 O.S.No.26104/2017
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O.S.No.26612/2013
their power of attorney Ramaiah Reddy. The defendants
are only disputing alienation of suit site by Ramaiah
Reddy in favour of plaintiff. When there is registered
sale deed in respect of suit sites in favour of plaintiff,
she acquired title over suit properties. If at all plaintiff
had purchased revenue site from power of attorney
holder of defendants she runs risk in not getting khata
certificate from competent authority and she may not fet
any loan on property and she may not in position to sell
it to others, unless same is regularized by government
under relevant scheme. Hence, I answer point No.1 in
O.S.No.26612/2013 and issue No.1 in
O.S.No.26104/2017 in the affirmative.
36. POINT NO.2 IN O.S.NO.26612/2013 AND
ISSUE NO.2 AND ADDITIONAL ISSUE NO.1 IN
O.S.NO.26104/2017 :- As these issues are inter-related
to each other and involves common appreciation of facts
and evidence on record, findings on one issue are
bearing on other issues, in order to avoid repetition of
facts and for convenience sake, all issues are taken
together for common discussion.
33 O.S.No.26104/2017
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O.S.No.26612/2013
37. The plaintiff has specifically contended, the
defendant in O.S.No.26612/2013 unauthorizedly put
up construction over suit property and promise to
vacate constructed premises in favour of plaintiff and
thereafter he refused to vacate the same. It is also
contended by plaintiff in O.S.No.26104/2017 that, the
defendants have fraudulently encroached upon suit
property during pendency of suit.
38. It is worth to note here that, the defendants in
their written statement have specifically contended that,
they had put up permanent structure in their property
bearing Sy.No.39/4 several years ago and defendant
No.1 gifted major portion of property to her daughters.
The defendants have produced gift deed dated
31.10.2006 as per Ex.D.14. On perusal of said
document, original defendant No.1 has gifted 1.1 gunta
property in Sy.No.39/4 in favour of defendant No.5.
39. As already discussed, by virtue of Ex.P.1 entire
extent of site No.A-19 measuring 40 X 60 feet in
Sy.No.39/4 sold in favour of plaintiff. As per Ex.P.10
defendants have sold schedule property as mentioned in
34 O.S.No.26104/2017
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O.S.No.26612/2013
schedule to plaint of O.S.No.26612/2013 in favour of
defendant - M. Venkatesh. It is fact that, execution of
Ex.P.10 and D.14 deeds are subsequent to execution of
sale deed of suit site No.A-19 property in favour of
plaintiff. It is contended, schedule mentioned in Ex.P.10
and D.14 not tally with boundaries of suit property as
mentioned in schedule to the plaint.
40. It is to be noted here, the defendants in their
written statement have specifically contended, long back
they have put up construction over property itself
sufficient to come to conclusion, defendants have
encroached upon suit property of plaintiff. The
defendants have much relied on revocation deed dated
27.02.2008 as per Ex.P.29 and thereby contended as
power of attorney holder Ramaiah Reddy trying to do
illegal activities and tampering/concocting revenue
records with assistance of land grabbers, defendants
have immediately canceled GPA. If really, contention of
defendants were to be true, they would not have entered
into compromise in O.S.No.27023/2009 and they would
not have executed deed of confirmation as per Ex.P.38
35 O.S.No.26104/2017
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O.S.No.26612/2013
and P.39. In these documents, the defendants have
clearly admitted an act done by their power of attorney
and only in case of present plaintiff they are disputing
an act done by their power of attorney holder.
41. It is worth to note here that, so far as
identification of suit property is concerned, it is
seriously disputed by defendants. According to
defendants no such suit property is existed in
Sy.No.39/4. May be it is true, Ex.P.3 layout plan not
approved by any competent authority, but on going
through boundaries of properties mentioned in Ex.P.38
and P.39 and existence of property as mentioned in
photos produced by plaintiff, it is clearly established
existence of suit property within boundaries as
mentioned in schedule to the plaint. The defendants
have contended portion of property was acquired by
BDA. Defendants would have produced documents to
show which property or site is adjacent to acquired
property. Once encroachment of properties of plaintiff
by defendants is proved by plaintiff, she being owner of
suit properties having acquired under registered sale
36 O.S.No.26104/2017
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O.S.No.26612/2013
deed is entitled for vacant possession of suit properties
from defendants. Hence, I answer Point No.2 in
O.S.No.26612/2013, Issue No.2 and Additional
issue No.1 in O.S.No.26104/2017 in the affirmative.
42. ADDITIONAL ISSUE NO.2 :- The defendants
have contended, plaintiff does not have any manner of
legal right in respect of suit property whatsoever against
defendants, hence she has no locus-standi to institute
present suit against defendants. It is worth to note here
that, admittedly in O.S.No.26612/2013 is not contested
by defendant therein. As already discussed, there is
registered sale deed in respect of suit sites as per Ex.P.1
in favour of plaintiff. Even though, layout formed in
Sy.No.39/4 not approved by competent authority, it is
fact that, by forming revenue sites, the defendants
through their power of attorney holder sold suit sites to
plaintiff. Based on registered sale deed as per Ex.P.1
even if it is revenue sites, plaintiff can very well
maintain suit against defendants who have denied title
and possession of plaintiff over suit properties. Hence, I
37 O.S.No.26104/2017
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O.S.No.26612/2013
answer Additional Issue No.2 in O.S.No.26104/2017
in the negative.
43. POINTS NO.3 AND 4 IN O.S.NO.26612/2013
AND ISSUES NO.3 IN O.S.NO.26104/2017 :- As these
issues are inter-related to each other and involves
common appreciation of facts and evidence on record,
findings on one issue are bearing on other issues, in
order to avoid repetition of facts and for convenience
sake, all issues are taken together for common
discussion.
44. There is sufficient material on record by way of
oral and documentary evidence to say plaintiff by virtue
of registered sale deed purchased suit sites and she was
put in possession of purchased property as on date of
execution of sale deed as per Ex.P.1. The defendants by
their subsequent act in executing confirmation deed as
per Ex.P.38 and P.39 as well entering into compromise
in O.S.No.26677/2013 have confirmed they have
executed power of attorney in favour of Ramaiah Reddy
and said power of attorney formed sites in Sy.No.39/4
and sold suit site in favour of plaintiff. The plaintiff
38 O.S.No.26104/2017
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O.S.No.26612/2013
having purchased suit site under registered sale deed
entitled to be declared as owner of suit sites. Further,
defendants having unauthorizedly occupied suit
property of plaintiff they are under obligation to
handover vacant possession of suit properties to
plaintiff. Hence, I answer Points No.3 and 4 in
O.S.No.26612/2013 and Issue No.3 in
O.S.No.26104/2017 in the affirmative.
45. POINT NO.5 IN O.S.NO.26612/2013 ISSUE
NO.4 AND ADDITIONAL ISSUE NO.3 IN O.S.NO.
26104/2017 :- In view of the above said findings on
Points No.1 to 4 in O.S.No.26612/2013 and Issues No.1
to 3 and Additional Issue No.1 and 2 in
O.S.No.26104/2017, I proceed to pass the following:
ORDER
Suit of the plaintiff in O.S.No.26612/2013 is hereby decreed with cost.
It is declared that, plaintiff is absolute owner of suit schedule mentioned property.
39 O.S.No.26104/2017C/w O.S.No.26612/2013 Defendant is hereby directed to demolish unauthorized construction put up over suit property and hand over vacant possession of suit property to plaintiff within 2 months from date of decree.
Suit of the plaintiff in O.S.No.26104/2017 is hereby decreed with cost.
It is declared that, plaintiff is absolute owner of suit schedule mentioned property.
Defendants, their men, agents, tenants or anybody claiming through them have to remove sheds or structures put on suit property and to handover vacant possession of suit property to plaintiff within 2 months from date of decree.
In case, defendants in respective suits failed to handover vacant possession of suit properties to plaintiff within time limit as prescribed above, plaintiff is at liberty to get 40 O.S.No.26104/2017 C/w O.S.No.26612/2013 vacant possession of suit properties from respective defendants of suits by following due procedure known to law.
Draw decree accordingly.
Keep the copy of the Judgment in O.S.No.26612/2013 and original in O.S.No.26104/2017 (Dictated to the Stenographer directly on computer, typed & computerized by her, corrected and signed by me and then pronounced in the open Court on this the 6th day of January, 2025).
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-
Examined on:
P.W.1 : Smt. Bulla Hymavathi 30-07-2019
2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-
Ex.P.1 : Certified copy of original sale deed dated 28.03.1994.
Ex.P.2 : Certified copy of General Power of Attorney.
Ex.P.3 : Certified copy of layout plan sketch. Ex.P.4 : Certified copy of the khata extract. Exs.P.5 : Certified copy of tax paid receipt. and P.6 41 O.S.No.26104/2017 C/w O.S.No.26612/2013 Exs.P.7 : Certified copies of Encumbrance to P.9 certificate.
Ex.P.10 : Certified copy sale deed dated 22.05.2003. Ex.P.11 : Certified copy of plaint in O.S.No.26677/2013.
Ex.P.12 : Certified copy of written statement in O.S.No.26677/2013.
Ex.P.13 : Certified copy of the order sheet in O.S.No.26677/2013.
Ex.P.14 : Certified copy of sale deed of site No.A-19 dated 28.07.2007.
Exs.P.15 : Photographs.
to P.22 Exs.P.23 : C.D. and P.24 Exs.P.25 : Tax paid receipts. to P.28 Ex.P.29 : Certified copy of the revocation deed dated 27.02.2006.
Ex.P.30 : Certified copy of the sale deed dated 19.07.1994.
Ex.P.31 : Certified copy of sale deed 28.07.2007.
Ex.P.32 : Certified copy of the order and judgment passed in O.S.No.27023/2009.
Ex.P.33 : Certified copy of the memorandum of agreement filed in O.S.No.27023/2009. Ex.P.34 : Certified copy of the decree in O.S.No.27023/2009.
Ex.P.35 : Certified copy of the plaint in O.S.No.27023/2009.
Ex.P.36 : Certified copy of sale deed dated 27.11.1993.
42 O.S.No.26104/2017C/w O.S.No.26612/2013 Ex.P.37 : Certified copy of sale deed dated 31.01.1994.
Ex.P.38 : Certified copy of deed confirmation dated 12.05.2008.
Ex.P.39 : Certified copy of deed confirmation dated 24.12.2008.
3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-
Examined on:
D.W.1 : H.N. Rani 13-03-2024.
4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-
Ex.D.1 : Certified copy of Revocation Deed dated 27.02.2008.
Ex.D.2 : Death certificate of Nanjunda Reddy dated 26.09.2015.
Ex.D.3 : Death certificate of Smt. Neelamma N. dated 26.09.2015.
Ex.D.4 : Encumbrance Certificate. Exs.D.5 : RTC.
to D.8 Exs.D.9 : Copy of Mutation Register. to D.11 Ex.D.12 : GPA.
Ex.D.13 : Certified copy of Revocation Deed dated 27.02.2008.
Ex.D.14 : Certified copy of Gift Deed dated 31.10.2006.
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.
43 O.S.No.26104/2017C/w O.S.No.26612/2013