Dismissed

Sri R Muniraju v. Sri Raja Gopal Rai

Karnataka HC4 Aug 2023RFA/1176/2017

Case brief

AI extract

What is this about?

Defendant appealed against permanent injunction in property suit. Court rejected additional evidence application as irrelevant to existing suit. Court dismissed appeal, upholding trial judgment finding plaintiff owned property while defendant claim was for non-existent land acquired by BDA.

What did the court decide?

The appeal by the defendant was dismissed and the Additional Evidence Application was rejected. Parties to bear their own costs.

Sri R Muniraju Vs Sri Raja Gopal Rai — Property and Title | Karnataka HC (2023)

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RFA.No.1176 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

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REGULAR FIRST APPEAL NO.1176 OF 2017 (INJ)

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Between:

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Sri R.Muniraju, S/o late Ittanadu Ramaiah, Aged about 61 years, Presently resident of Rama Nilaya, No.1, Arehalli Village Road, Ittamadu Main Road, Bengaluru-560 061.

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.. Appellant

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( By Sri D.L.Jagadish, Senir Counsel for Smt. Rakshitha D.J., Advocate )

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And:

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Sri Raja Gopal Rai, S/o Late Narasimha Rao, Aged about 63 years, R/at Flat No.NA 363, 6^th Floor, Vijaya Enclave, North Block, Sunder Ram Shetty Nagar, Bilekahalli, Bannerghatta Road, Bangalore-560 076. .. Respondent

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( By Sri Imran Pasha, Advocate )

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RFA.No.1176 of 2017

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This Regular First Appeal is filed under Section 96(1) read with Order 43 Rule 1 of the Code of Civil Procedure, 1908, praying to call for the relevant records in O.S.No.15619/2006 on the file of the XIII Addl.City Civil and Sessions Judge, Bengaluru City (C.C.H.22), Mayo Hall, Bengaluru City and set aside the impugned judgment and decree dated 24.04.2017 passed in O.S.No.15619/2006 by the XIII Addl.City Civil and Sessions Judge, Bengaluru City (C.C.H.22), Mayo Hall, Bengaluru City and consequently dismiss the suit and pass any other order or orders as this Hon’ble Court deems fit in the circumstances of the case, including the cost of the appeal, in the interest of justice and equity.

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This Regular First Appeal having been heard through Physical Hearing/Video Conference and reserved on 14.07.2023, coming on for pronouncement of judgment, this day, the Court delivered the following:

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JUDGMENT

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This is a defendant’s appeal. The present

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respondent as a plaintiff had instituted a suit against the present appellant arraigning him as defendant in O.S.No.15619/2006, in the Court of the learned

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XIII Addl.City Civil and Sessions Judge, Mayohall Unit, (CCH-22), Bangalore City, (hereinafter for brevity referred to as `the trial Court’), seeking for the relief of permanent injunction against the defendant restraining the defendant,

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his family members, agents, henchmen etc., from interfering with the peaceful possession and enjoyment of

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the plaint schedule property or from dispossessing the plaintiff from the suit schedule property.

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The summary of the plaint averments in the trial

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Court was that, the plaintiff is the absolute owner in possession of the suit schedule property, having acquired the same under registered Sale Deed dated 01.03.1993 from one Sri B.M.Prakash, for a valuable sale consideration of `68,000/-. The plaintiff got entered his name in the revenue records and has been paying the property tax to Gram Panchayath, Uttarahalli. He is in actual, physical, peaceful possession and enjoyment of the suit schedule property. That being the case, on the date 15.02.2006, the defendant tried to interfere and dispossess him from the peaceful possession and enjoyment of the suit schedule property. The plaintiff contends that the defendant is the stranger in respect of the suit schedule property and he is very influential person in the locality. Though the plaintiff approached the police, however, they issued an endorsement stating that the dispute is civil in nature and directed the plaintiff to approach the

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Civil Court. On the date 30.03.2006, the defendant once again tried to dispossess the plaintiff from the suit schedule property. This made the plaintiff to approach the

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trial Court by filing the suit for permanent injunction against the defendant.

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In response to the suit summons served upon

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him, the defendant appeared through his counsel and filed his written statement, wherein he denied all the material averments made in the plaint and also disputed the existence of the suit schedule property. He contended that when the very existence of the suit schedule property is doubtful, the question of enjoyment, ownership and possession upon the suit schedule property by the plaintiff does not arise. He denied his alleged interference and attempt to dispossess the plaintiff from the suit schedule property on the date 15.02.2006 and on 30.03.2006. He specifically contended that the property claimed by the plaintiff does not exist and the plaintiff is trying to make a claim over the property of the defendant. As such, the plaintiff is not entitled for any discretionary relief.

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The defendant further contended that the documents

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of the plaintiff are imaginary and without any semblance of right. The suit of the plaintiff is suppresio veri and suggestio falsi. The defendant contended that the plaintiff had suppressed the fact that one Sri Sundar, who is the owner of Site No.6, Katha No.7/4, situated at Uttarahalli Village, Uttarahalli Hobli, Bengaluru South Taluk (written statement schedule property), delivered the possession of the same to the defendant under the General Power of Attorney dated 27.07.2005. The defendant being the General Power of Attorney Holder, obtained power connection and water supply and paying the taxes in respect of the written statement schedule property. The said property is a portion of Survey No.7/4, originally owned by one Smt.Sharada Bai. After the demise of Smt.Sharada Bai, the Khatha was changed in the name of her husband Sri N.Srinivasappa. Sri

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N.Srinivasappa formed layout in the said land and sold Site No.6 to Mr.Sundar as per the Sale Deed dated 21.06.2004. Thus, there is no property as described in

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the plaint in Survey No.7/2. The defendant also stated that Survey No.7 is sub-divided into Survey Nos.7/1, 7/2, 7/3 and 7/4. the plaintiff claiming himself to be the owner

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of a portion of Survey No.7/2, is trying to trespass over Site No.6 in Survey No.7/4. Stating that the plaintiff has approached the Court with uncleaned hands, the defendant prayed to dismiss the suit of the plaintiff.

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Based on the pleadings of the parties, the trial

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Court framed the following issues for its consideration:

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“1. Whether the plaintiff proves his lawful possession and enjoyment of the suit schedule property as on the date of suit?

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2. Whether the plaintiff proves alleged interference by the defendant?

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3. Whether the suit in the present form is not maintainable as contended by the defendant?

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4. Whether the plaintiff is entitled for the relief sought for?

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5. What order or decree?”

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In support of his plaint, the plaintiff got himself examined as PW-1 and got produced and marked

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documents from Exs.P-1 to P-31. On behalf of the defendant, the defendant got examined himself as DW-1 and got produced and marked documents from Exs.D-1 to D-33.

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After hearing both side, the trial Court by its impugned judgment and decree dated 24.04.2017, answering issue Nos.1, 2 and 4 in the affirmative and issue No.3 in the negative, decreed the suit of the plaintiff and the defendant and his men, agents etc., were restrained permanently from interfering with the possession and enjoyment of the suit schedule property by the plaintiff and from dispossessing the plaintiff from the suit schedule property. Being aggrieved by the same, the defendant-appellant has preferred the present appeal.

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The learned counsel for the appellant (defendant) and learned counsel for respondent (plaintiff) are physically appearing before the Court.

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The trial Court records were called for and the same are placed before this Court.

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During the pendency of this appeal, the appellant filed IA.No.2/2022 under Order XLI Rule XXVII read with Section 151 of Code of Civil Procedure, 1908 (hereinafter

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for brevity referred to as `CPC’), seeking permission to produce four documents shown in the list accompanying the application. The respondents have filed their objections to the said application. The said IA.No.2/2022 also was taken up along with this main appeal for its disposal.

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Heard the arguments of the learned counsels from both side and perused the material placed before this Court, including the memorandum of appeal, impugned judgment and the trial Court records.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court.

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Learned counsel for the defendant (appellant) in his arguments submitted that the only question that was to be considered by the trial Court was with respect to

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the identity of the property, however, no issue was framed by the trial Court in that regard. He contended that when the very identity and title of the plaintiff was in dispute, the suit of the plaintiff for injunction was not maintainable. The oral, as well the documentary evidence led by the parties were not properly appreciated by the trial Court. It ignored the contradictions in the oral and documentary evidence of the plaintiff which resulted it in decreeing the suit. However, he did not address his arguments on IA.No.2/2022 filed by the appellant under Order XLI Rule XXVII read with Section 151 of CPC.

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Learned counsel for the respondent/plaintiff in his arguments on IA.No.2/2022 submitted that the documents produced are totally with respect to different property pertaining to another suit. Those documents were issued to vendor to the plaintiff by name one Sri Prakash. No notice was issued to the plaintiff in that other case also. The suit schedule property is not adjacent to the property in sketch at document No.1. Therefore, the documents are not related to the suit schedule property, as such, they

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are not relevant. He also submitted that no reasons are

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forthcoming for delayed production of those documents.

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Upon main appeal, learned counsel for the

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respondent/plaintiff submitted that the written statement schedule property is not in existence. Plaintiff’s case is supported by the documents produced and marked by him as exhibits. Ex.P-9 shows that Bengaluru Development Authority (BDA) is the owner of the land in Survey No.7/4. Exs.P-10 to P-12 shows about defendant encroaching the other property. Ex.P-14 shows that BDA has took over the suit schedule property. The tax paid receipts produced by the plaintiff shows that plaintiff is in possession and enjoyment of the property. Since BDA has acquired Survey No.7/4 in its entirety, written statement property does not exist. Thus, there is no dispute regarding the identity of the property. The title of the plaintiff over the suit schedule property is also not in dispute. With this, he submitted that the trial Court has rightly decreed the suit of the plaintiff.

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In the light of the above, the points that arise

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for my consideration in this appeal are:

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i] Whether the applicant in IA.No.2/2022 has made grounds to allow IA.No.2/2022 filed under Order XLI Rule 27 read with Section 151 of Code of Civil Procedure?

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ii] Whether the plaintiff proves his lawful possession and enjoyment over the suit schedule property as on the date of the suit?

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iii] Whether the plaintiff has proved the alleged interference by the defendant?

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iv] Whether the judgment and decree under consideration warrants any interference at the hands of this Court?

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The appellant has filed IA.No.2/2022 under Order

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XLI Rule 27 read with Section 151 of CPC, seeking to produce the documents which are a copy of hand-sketch of suit property, copy of google map said to be with respect to locality of the suit property, copy of a notice dated 23.07.2018 shown to have been issued by a Surveyor of land to both the parties to this appeal and two postal receipts.

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In the affidavit accompanying the application, the deponent has stated that one more suit in O.S.No.15825/2006 was preferred by one Smt.Lalu

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Ayappa against him in respect of adjoining Site No.11, V.P. Khatha No.7/2, situated at Uttarahalli Grama, Uttarahalli Hobli, Bengaluru South Taluk, on the file of the learned LXXIII Addl.City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-74). In the said suit, a Court Commissioner was appointed to conduct the survey in respect of Survey No.7/2. The Court Commissioner has filed his report, survey sketch and map. The said suit, after contest, has been dismissed by the concerned trial Court. Hence, in view of the subsequent development, it was necessary to bring the documents to the notice of this Court. The applicant has contended that since those documents are subsequent to filing of the present appeal, he could not produce them at the earliest.

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The respondent who has filed his statement of

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objections to the said application has contended that the documents now sought to be produced as additional

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evidence are all the documents relating to certain other survey number alleged to have been shown in respect of some other property, for which, the respondent/plaintiff was not a party/signatory to the same. Some of the documents are all pertaining to the year 2018 i.e., much later to the disposal of O.S.No.15619/2006. The documents sought to be produced are nothing to do with the appeal, but, to mislead this Court and to cause harassment to the respondent. It is also contended that since the present suit is being for perpetual injunction, in order to prove the case, the plaintiff has to prove the possession over the suit schedule property as on the date of the suit. As such, the plaintiff cannot rely upon the documents of some other suit with respect to some other property. With this, the respondent prayed for rejection of the application.

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As observed above, learned Senior Counsel for

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the appellant addressed no points in his arguments on the IA. under consideration. His argument was only confining

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to the merits of the main appeal. Still, when the contents of the affidavit accompanying the application is perused,

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what it denotes is that, even according to the applicant, the documents now sought to be produced, which are four in number, have got no direct bearing with respect to the plaint schedule property or the written statement schedule property. On the other hand, those documents are said to be with respect to another site bearing No.11 and the alleged V.P. Khatha No.7/2 at Uttarahalli Village, Uttarahalli Hobli, Bengaluru South Taluk.

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Secondly, when those documents now sought to be produced are perused, it only go to show that, it bears a hand-sketch shown to have been drawn by the Surveyor with respect to Re-Survey No.7/4. In the said sketch in Re-Survey No.7/4, one particular property with the boundary A’, B’, C’ and D’ is shown, calling it as a property belonging to the plaintiff in the said O.S.No.15825/2006. Thus, the said document has got nothing to do with the suit schedule property. A printout of the google map though shows an ariel view or a satellite view of some residential area, but, a perusal of the same

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throws no light regarding the description or

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identity of the suit schedule property. The name given to the said map in the printout appears to be not the one generated by the google or its satellite which has created the map, but, it must have been given by the person who has downloaded the said picture and has taken its printout. As such, the said map also would not be of any avail to the appellant.

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The other two documents are a copy of the notice shown to have been issued to both the plaintiff and the defendant in that other suit and two postal receipts. The copy of the notice shows about fixation of the date for the local inspection of the suit schedule property in the said suit bearing O.S.No.15825/2006. Thus, from looking at the documents now sought to be produced, it cannot be taken that those documents are required to enable this Court to pronounce the judgment or for any substantial cause. In that background, the date of creation or availability of the said documents become not a relevant factor to be considered. Even though those documents sought to be produced are shown to have

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come into existence after pronouncement of impugned judgment and passing of decree by the trial Court in O.S.No.15619/2006, still, since it is noticed that those documents are of no help for disposal of the appeal under consideration and it is not with respect to the present suit schedule property also, I find no requirement of those documents for the disposal of the appeal. As

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such, I do not find any reason to allow IA.No.2/2022.

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The plaintiff who got himself examined as PW-1

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in his examination-in-chief filed in the form of affidavit evidence has reiterated the contentions taken up by him in his plaint. In order to show that he has purchased the suit schedule property from its previous owner one Sri B.M.Prakash for a valuable consideration for a sum of `68,000/- under a registered Sale Deed dated 01.03.1993, the witness has produced the original Sale Deed dated

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01.03.1993 and got it marked as Ex.P-1. The said document shows that the plaint schedule property was sold by said Sri B.M.Prakash in favour of the plaintiff for a valuable consideration. The vendor in the said Sale Deed

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has narrated as to how he became the owner of the said property before its sale to the plaintiff. He has stated that the property was purchased by his father Sri Munireddy from one Sri.L.Krishnappa and others under registered Sale Deed dated 09.04.1975. The description of the property given in the schedule of the said document tallies with the plaint schedule property.

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To show that the said property was assessed for Property Tax by Uttarahalli Village Panchayath, he has produced the Tax Demand Extract at Ex.P-2, which identify the said property as property bearing No.13, in V.P.Khatha No.7/2 of Uttarahalli Village, as assessed by it for property tax. The Tax Assessment List for the same property by the same Panchayath at Ex.P-3 shows that name of the owner of the property is shown as that of the plaintiff. The description of the property corresponds to the description shown in Exs.P-1 and P-2. Ex.P-4 is the tax paid receipt with respect to the same property for the year 2004-2005.

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The Hissa Survey Sketch at Ex.P-17 and Hissa

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Survey Tippani at Ex.P-18 and Survey Sketch at Exs.P-19, P-20 and P-21, except showing that the Survey No.7 was divided into sub-survey numbers, including Survey Nos.7/1, 7/2, 7/3 and 7/4, would not throw much light either as to the suit schedule property or at the written statement property particularly.

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Exs.P-22 to P-27 are the tax paid receipts for four years i.e., from 2008-2009 to 2013-2014 with respect to plaint schedule property. Ex.P-28 is an endorsement shown to have been issued by Bruhat Bengaluru Mahanagara Palike (for brevity `BBMP’), about visiting the plaint schedule property during the pendency of the suit. Exs.P-30 and P-31 are Encumbrance Certificates showing the sale transaction of the plaint schedule property from its vendor Sri B.M.Prakash in favour of the plaintiff on the date 01.03.1993.

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The above documents produced by the plaintiff

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were not seriously disputed or objected to by the defendant (the appellant herein) in the trial Court. On the

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other hand, the written statement filed by the defendant, as well the evidence of the defendant as DW-1 does not dispute the carving of Site bearing No.13 in Survey No.7/2, which according to the parties is also V.P.Khatha No.7/2 of Uttarahalli Village, Uttarahalli Hobli, Bengaluru South Taluk. The case of the defendant is not denial of the existence of the property bearing No.13 in Survey No.7/2 or V.P.Khatha No.7/2, but, it is his contention that he is the purchaser of Site bearing No.6, formed in Survey No.7/4 of Uttarahalli Village. Thus, the defendant’s contention is of himself being a owner of Site in Survey No.7/4, whereas, the contention of the plaintiff is of he being in possession as a owner of a Site bearing No.13 in Survey No.7/2.

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In the cross-examination of PW-1, a suggestion was made to PW-1 suggesting that Survey No.7/2 is converted for residential purpose in the year 2004, the witness has admitted the said suggestion as true. Further, the witness stated that the said conversion order was passed in his name, but, not in the name of his vendor Sri

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B.M.Prakash. By suggesting to PW-1 in his crossexamination that said Sri B.M.Prakash had sold that site No.13 in Survey No.7/2 to different person/persons, the defendant conceded the existence of a property bearing Site No.13 in Survey No.7/2 ( V.P.Khatha No.7/2) of Uttarahalli Village, Uttarahalli Hobli, Bengaluru South Taluk.

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Apart from the above, in the very same crossexamination of PW-1 from the defendant’s side, it was suggested to the witness that there is RCC building consisting of ground and first floor in Site No.13. In the same cross-examination, it was suggested to PW-1 by the defendant that there is compound wall and A/C sheet house in the suit schedule property. It was also suggested to the witness that the suit schedule property has got water and electricity connection. Though the witness has not admitted those suggestions as true, however, by making those suggestions at more than one place in the cross-examination of PW-1, the defendant has admitted the existence of a property bearing Site No.13 in Survey

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No.7/2 (V.P.Khatha No.7/2) of Uttarahalli Village,

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Uttarahalli Hobli, Bengaluru South Taluk.

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To the height of the above, suggestions were made to PW-1 in his cross-examination from the defendant’s side that the said property bearing Site No.13, carved in Survey No.7/2, was sold by Sri B.M.Prakash to one Sri Ramarao and his Power of Attorney Holder Smt.Bhargavi. Later, the said sale was suggested as made in favour of one Sri L.S.Manjunatha. Subsequently, the very same defendant suggested to PW-1 in his very same cross-examination that the said sale of Site No.13 in Survey No.7/2 was made in favour of one Sri Farooq.

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Furthermore, the defendant as DW-1 in his examination-in-chief at one breath contended that there is no suit schedule property in existence, in the very next breath, he contended that the suit schedule property bearing Site No.13 in Survey No.7/2 was sold by Sri B.M.Prakash in favour of one Sri Ramarao. In another breath, the very same defendant has suggested to PW-1 in his cross-examination that the said site No.13 has been

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carved in Survey No.7/4. However, all these suggestions about non-existence of the plaint schedule property, suggesting that the said property was carved in Survey No.7/4 and also the suggestion that the plaint schedule property was sold to three different persons by Mr.B.M.Prakash, were all not admitted as true by the plaintiff.

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Thus, the defendant blowing hot and cold simultaneously was unable to take a specific stand either about the existence of the suit schedule property or about non-existence of suit schedule property. On the other hand, he has taken three different inconsistent stands, firstly, he alleged the said site as non-existent, secondly, contending that the suit schedule property was sold to a different person by Sri B.M.Prakash, which different person also keep changing and three different names were attributed by the defendant as the alleged purchasers of the said property, and thirdly, the defendant has taken a contention that the Site No.13 was carved in Survey No.7/4.

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However, as observed above, none of these

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suggestions were admitted as true by PW-1. On the other hand, the defendant himself has suggested to PW-1 in his cross-examination about carving of Site No.13 in Survey No.7/2 and the existence of the said site. Therefore, the contention of the defendant and the argument of learned Senior Counsel for the appellant/defendant that the suit schedule property bearing Site No.13 in Survey No.7/2 of Uttarahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, is not in existence, is not acceptable. On the other hand, the oral and documentary evidence led by the plaintiff and the statements elicited in cross-examination of PW-1 and more importantly, the suggestion made to PW-1 in his cross-examination, establishes clearly about the existence of the plaint schedule property with the description as given in the plaint.

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24. The defendant who got himself examined as DW-

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1 though has reiterated the contentions taken up by him in his written statement, even in his examination-in chief

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filed in the form of affidavit evidence also, as observed

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above, his contention about non-existence of plaint schedule property and the alleged alienation of the plaint schedule property in favour of other persons by its original owner Sri B.M.Prakash would not hold good. On the other hand, DW-1 in his cross-examination, apart from stating

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that the RTC of Survey No.7/2 is in the name of Sri B.M.Prakash, has expressed his ignorance about said Sri B.M.Prakash carving several sites in Survey No.7/2. He has also stated that the said Survey No.7/2 is converted into non-agricultural purposes. He expressed his ignorance about existence of Site Nos.11, 12 and 13 in Survey No.7/2.

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In the very same cross-examination, DW-1 also stated that he has no any right and possession in Site No.13 of Survey No.7/2. He further concedes that in the copy of the Layout Map with respect to Survey No.7/2 produced by him as Ex.D-29, it is shown the existence of Site No.13. He categorically stated in his crossexamination that he has no any right in Survey No.7/2

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and if there are any sites in Survey No.7/2, he has no possession on those sites. Thus, his own statement and his own document at Ex.D-29 shows the existence of Site No.13 in Survey No.7/2 and his statement that he has no right with respect to said Site No.13 in Survey No.7/2 and that if there are any sites in Survey No.7/2, he has no possession of such sites, would all further strengthen the case of the plaintiff and go to show that there existed the plaint schedule property and the same is in possession of the plaintiff.

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The defendant has also got produced and marked several of the documents. It is his oral evidence that land in Survey No.7/4 of Uttarahalli Village, was also sub-divided into sites. The said land was owned by Sri L.Krishnappa and his wife. One Smt.Muniyamma and Smt.Sharadamma as legal heirs of Sri L.Krishnappa, joined by their children, formed a revenue layout in Survey No.7/4 and sold the same to the intending purchasers in

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the year 2004. The vendor to the defendant by name Sri Sundar was also one among the purchaser, who

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purchased Site No.6 in survey No.7/4. It is stated by him that Sri Sundar who executed a General Power of Attorney in his favour (defendant) on 21.06.2004 authorising him

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to represent him in respect of Site No.6. The defendant has produced the said General Power of Attorney and got it marked at Ex.D-1. The Sale Deed in favour of said Sri T.S.Sundar Raj is got marked by the defendant as Ex.D-2.

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The Tax Demand Register with respect to property No.6 in Survey No.7/4 of Uttarahalli Village Panchayath standing in the name of said Sri T.S.Sundar Raj and the Tax Paid Receipts for the years 2006-2007, 2008-2009, 2009-2010 and 2010-2011 by Sri T.S.Sundar Raj are marked as Exs.D-3 and D-4 respectively. The electricity bills showing the property No.6 in Survey No.7/4 of Uttarahalli village is produced at Ex.D-5. A Certificate of Deposit shown to have been issued by Bengaluru Electricity Supply Company Limited (BESCOM) and dated 31.03.2011 is produced at Ex.D-6. The said Electricity Certificate shows

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the name of the defendant, but, not the property details.

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The endorsement shown to have been issued by the Bengaluru Development Authroity (BDA) dated 03.08.2010 shows that, it has not formed any sites in Survey No.7 and its sub-survey numbers. However, it is nobody’s case that BDA has formed any sites in those survey numbers. But, it is the case of the plaintiff that land in Survey No.7/4 was acquired by the BDA, however, Ex.D-7 states that, `regarding the acquisition of those survey numbers, the applicant can collect the information from Land Acquisition Section’ .

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The copies of the Partition Deed and Sale Deeds from Exs.D-8 to D-10 are not seriously denied from the plaintiff’s side since they pertain to flow of title in the family of late Sri L.Krishnappa, Smt.Muniyamma and Smt.Sharadamma. That would not be of much avail to the parties in the suit since the plaintiff has not denied the previous ownership of the land bearing Survey No.7/4 of Uttarahalli Village.

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Though the defendant has produced a copy of the Sale Deed dated 27.09.2006 at Ex.D-16, which shows that

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one Sri C.M.Farooq has sold the property akin to the description of the suit schedule property to one Sri K.Kamalapathi Naidu, however, the plaintiff has disputed the same. Admittedly, except producing the copy of the said document, the defendant has not produced other documents to believe the alleged transaction shown in the said Sale Deed and in the Encumbrance Certificate at Ex.D-17.

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The copies of the Sale Deeds at Exs.D-20, D-22 and D-23 are with respect to the alleged sale of property Nos.11, 10 and 9 respectively in Survey No.7/2 of Uttarahalli Village by Sri B.M.Prakash in favour of the purchasers shown therein. None of these documents and the Encumbrance Certificates produced at Exs.D-19, D-21, D-24 and D-26 are with respect to plaint schedule property. On the other hand, these documents produced by the defendant himself would falsify his contention that the plaint schedule property does not exist. His admission in the cross-examination that the Layout Plan at Ex.D-29 is with respect to Survey No.7/2 of Uttarahalli Village and

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it shows the existence of the plaint schedule property bearing property No.13 and the neighbouring sites shown in the said Layout Plan bearing property Nos.9, 10, 11 and

¶176

14, would all go to show the existence of plaint schedule property.

¶177

Therefore, the documentary evidence produced by none else than the defendant himself corroborates the contention of the plaintiff about the existence of the plaint schedule property. As such also, the contention of the defendant that the plaint schedule property does not exist, is not acceptable. Further, in view of the fact that, except stating that the written statement schedule property itself is described as a plaint schedule property by the plaintiff is bereft of any corroborative material, including any documentary evidence. Therefore, the said contention is also not acceptable.

¶178

The contention of the plaintiff apart from the one that the plaintiff is the owner in possession of the suit schedule property, is also that the written statement schedule property is not in existence. The plaintiff has

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contended that the entire property in Survey No.7/3 and Survey No.7/4 of Uttarahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, was acquired by the BDA, as such, the existence of any site with `No.6’ and the defendant being its owner and in possession of the property does not arise.

¶182

Apart from leading oral evidence in that regard, the plaintiff has also got produced a Land Acquisition Notification at Ex.P-13. The said Notification is incomplete, as such, the Survey No.7/4 cannot be found therein. However, a mahazar for acquisition, the document of which is at Ex.P-14, clearly mentions the acquisition of the property at Survey No.7/4 of Uttarahalli village. The Notification published in Karnataka State Gazette of the date October 8^th , 2009, copy of which is at Ex.P-15, shows the acquisition of Survey No.7/3 and Survey No.7/4 in favour of Bengaluru Development Authority. The contention of the plaintiff that after acquisition of the entire land in the said Survey No.7/4, an award was passed by the Special Land Acquisition Officer,

¶183

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Bengaluru Development Authority, Bengaluru, is corroborated by Ex.P-16, which is an award copy. The copy of register of lands notified and acquired for public purposes and compensation paid thereof maintained by the BDA and marked at Ex.P-29 also shows the acquisition of the land at Survey No.7/4 of Uttarahalli Village.

¶186

These documents corroborates the evidence of PW-1 and go to establish that though the defendant claims to have been given with written statement schedule property bearing its alleged property No.6 in Survey No.7/4 of Uttarahalli Village by one Sri T.S.Sundar Raj, but, the documents discussed show that said Survey No.7/4 of Uttarahalli Village was already acquired by BDA.

¶187

Therefore, it is clear that the defendant claims to have purchased a site by his alleged vendor Sri T.S.Sundar Raj of a property which was not in existence and available for sale. Furthermore, even according to the defendant, except the alleged General Power of Attorney at Ex.D-1,

¶188

he does not possess any other registered document, including a registered Sale Deed in his favour to show his

¶189

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alleged title over the written statement schedule property. A such also, it go to show that the plaintiff by leading both oral and documentary evidence, has proved both the existence of the plaint schedule property as well his possession thereof as on the date of institution of the suit, whereas, the defendant neither could able to show the existence of the written statement schedule property nor could able to establish that the plaintiff is claiming the written statement schedule property as the plaint schedule property. Therefore, the argument of learned Senior Counsel that there is dispute with regard to identity of the property, as such, the matter requires to be remanded and that the plaintiff has to institute a suit for declaration of title by virtue of the judgment of Hon’ble Apex Court in

¶192

Anathulla Sudhakar -vs- P.Buchi Reddy (Dead) by LRs

¶193

and others, reported in (2008) 4 SCC 594, is not acceptable.

¶194

On the other hand, the argument of learned counsel for the respondent/plaintiff that defendant has been fighting for a non-existent site and claiming plaint

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schedule property as his site having no basis to sustain the said claim, is acceptable. Thus, since the plaintiff has established that he is in possession of plaint schedule property as on the date of institution of the suit, the finding of the trial Court on the same lines in that regard cannot be found fault with.

¶198

It is the plaint averment, as well the evidence of the plaintiff that the defendant having no manner of right, title or interest over the plaint schedule property, came near the suit schedule property on 15.02.2006 and attempted to dispossess the plaintiff from his possession and tried to interfere with the possession of the plaintiff over the plaint schedule property. It is also his plaint averment, as well his evidence that, he lodged a complaint with the jurisdictional police, however, the police gave an endorsement to him stating that the alleged incident involves a civil dispute, as such, they cannot register a case. In that regard, the plaintiff has produced the complaint, with the police endorsement therein at Ex.P-5, which shows that, alleging the interference by the

¶199

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defendant in the plaint schedule property on 15.02.2006, the plaintiff has submitted a complaint to the police, however, the Subramanyapura Police Station has endorsed on the complaint that, after verification, they noticed that it is a civil dispute, as such, a C.Misc.No.104/2006 was registered. Ex.P-6 is an endorsement by the police a week

¶202

after their endorsement on Ex.P-5, stating that their enquiry revealed that dispute was civil in nature, as such, the parties were directed to settle the matter in a Civil Court of Law.

¶203

This oral evidence, corroborated by the documentary evidence of the plaintiff, go to show that the defendant has interfered in the peaceful possession of the plaint schedule property by the plaintiff, as such, the plaintiff is entitled for the relief of permanent injunction as prayed for. Since it is considering both oral and documentary evidence placed before it in their proper perspective, the trial Court has arrived at appropriate finding and decreed the suit of the plaintiff, granting him

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the relief of permanent injunction, I do not find any error warranting any interference in it.

¶207

Accordingly, I proceed to pass the following:

¶208

ORDER

¶209

[i] IA.No.2/2022 filed under Order XLI Rule 27

¶210

read with Section 151 of Code of Civil Procedure,

¶211

stands rejected.

¶212

[ii] The Appeal filed by the defendant/appellant

¶213

stands dismissed as devoid of merits.

¶214

The parties to bear their own costs.

¶215

Registry to transmit a copy of this judgment along

¶216

with the trial Court records to the concerned trial Court, immediately.

¶217

Sd/JUDGE

¶218

bk/

Sri R Muniraju v. Sri Raja Gopal Rai

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Sri R Muniraju v. Sri Raja Gopal Rai

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