Smt Vijayamma Vs Shivakumar D

3 . THE MINISTRY OF COMMUNICATION EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LTD., HAVING ITS OFFICE AT NO.33 SERPENTINE ROAD, KUMARA PARK WEST EXTENSION BENGALURU-560 020.

¶18

…RESPONDENTS

¶19

(BY SRI. B.V.KRISHNA, ADV., FOR SRI. PRASHANTH CHANDRA S.N., ADV., FOR C/R1; SRI/SMT. L.M.SOWRABA JEEVALA, ADV., FOR R2 SRI. K.P. THRIMURTHY, ADV. FOR R3)

¶20

THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER XLI RULE 1 OF THE CPC, 1908, AGAINST THE JUDGMENT AND DECREE DATED 14.06.2022 PASSED IN O.S.NO.26133/2018 ON THE FILE OF XXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT MAYOHALL, BENGALURU (CCH-20) DECREEING THE SUIT FOR DECLARATION AND INJUNCTION AND POSSESSION.

¶21

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.01.2026 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING:

¶22

CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

¶23

3

¶24

CAV JUDGMENT

¶25

(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

¶26

This Regular First Appeal is filed by defendant No.1 in O.S.No.26133/2018 assailing the judgment and decree dated 14.06.2022 passed by the XXVI Additional City Civil and Sessions Judge at Mayo Hall, Bengaluru (CCH-20) ('trial Court' for short), decreeing the suit for absolute ownership over suit schedule - B property, mandatory injunction to demolish construction and vacate possession of the said property.

¶27

We have heard Shri. Manjunath G. Kandekar,

¶28

learned counsel appearing for the appellant. Shri. B.V. Krishna, learned counsel appearing for respondent No.1 and Shri. K.P. Thrimurthy, learned counsel appearing for respondent No.3.

¶29

For the sake of convenience, the parties are referred to as per the rankings before the trial Court.

¶30

4

¶31

The plaint averments are as follows:-

¶32

The plaintiff is the absolute owner of the plaint

¶33

schedule - A property, having purchased the same vide registered Sale Deed dated 16.08.2004 from defendant No.3 along with the owners of the land. Due to an error in the measurements, a registered Rectification Deed dated 08.02.2006 was executed by defendant No.3, rectifying the measurements of the plaint schedule - A property. Consequent thereto, the khatha of the property was transferred in the name of the plaintiff and has been paying property taxes regularly. The plaintiff constructed a compound wall around plaint schedule - A property.

¶34

Defendants No.1 and 2, having no manner of right, title and interest in the plaint schedule - A property, unlawfully encroached upon the eastern portion of the said property to an extent of 728 sq.ft., which portion is described as plaint schedule - B property. The plaintiff became aware of the encroachment in June 2018, when defendants No.1 and 2 demolished the compound wall on the eastern portion of the plaint schedule - A property. Upon

¶35

5

¶36

questioning defendants No.1 and 2, they claimed ownership over the said portion and refused to furnish any title documents in respect of plaint schedule - B property.

¶37

Subsequently, the plaintiff obtained an Encumbrance Certificate dated 06.08.2018 in respect of plaint schedule - A property, which revealed the execution of a Gift Deed dated 15.03.2014 by defendant No.1 in favour of defendant No.2. On being aware of the said Gift Deed being cancelled, the plaintiff again applied for an Encumbrance Certificate, which disclosed the execution of a Cancellation Deed. Certified copies of both the Gift Deed and Cancellation Deed were obtained and a bare perusal of the same clearly reveals that the properties therein are entirely different from both plaint schedule - A and B properties.

¶38

The plaintiff issued a legal notice dated 29.06.2018 to the Registrar of Co-operative Societies and also lodged a complaint with the jurisdictional police on 20.08.2018. However, no action was taken by the police on the ground that the dispute was civil in nature.

¶39

6

¶40

In the meanwhile, defendants No.1 and 2 proceeded to demolish the compound wall on the eastern side of plaint schedule - A property and commenced construction activities on the encroached portion. Despite having no right, title or interest in plaint schedule - B property, defendants No.1 and 2 are unlawfully encroaching and putting up a construction upon plaint schedule - B property belonging to the plaintiff.

¶41

Aggrieved by the acts of defendants No.1 and 2, the plaintiff had filed a suit seeking a declaration that the plaintiff is the absolute owner of the plaint schedule - B property, a mandatory injunction directing defendants No.1 and 2 to demolish the construction put up and a direction to hand over the vacant possession of plaint schedule - B property to the plaintiff.

¶42

In response to the suit summons, defendants No.1 to 3 appeared before the trial Court. Defendant No.3 filed the written statement admitting that the plaintiff is the owner of plaint schedule - A property and denied the knowledge about the plaintiff's construction of the compound

¶43

7

¶44

wall and encroachment made by defendants No.1 and 2 to the extent of 728 sq.ft.

¶45

Defendant No.1 filed a written statement

¶46

contending that she is the absolute owner of the property bearing Sites No.27 and 28 in HL No.111, measuring East to West 80 feet and North to South 30 feet, in all measuring 2400 square feet situated at Rachenahalli Village, Hegde Nagar, Bengaluru South Taluk. The said property was purchased from Shri. Munivenkatappa by Sale Deed dated 26.07.1999 and defendant No.1 was in possession of the said property. It is contended that the plaintiff attempted to

¶47

dispossess her from her property and she had to file O.S.No.26106/2018, but the same was taken back as not pressed. It is further stated that she had filed O.S.16359/2004 and obtained permanent injunction against the plaintiff and that she had not encroached into the plaintiff’s property or created any mischief as alleged.

¶48

7. Defendant No.2, being the daughter of defendant

¶49

No.1 adopted the written statement of defendant No.1.

¶50

8

¶51

In support of the plaintiff's case, the plaintiff examined himself as P.W.1 and got marked 42 documents as Exs.P1 to P42. The defendants neither lead any oral evidence nor produced any documents in support of the defence taken.

¶52

The trial Court based on the pleadings framed the

¶53

following issues for consideration:-

¶54

"1. Whether the plaintiff proves the ownership over the suit schedule 'B' property?

¶55

2. Whether the plaintiff is entitled to the mandatory injunction to demolishing the construction put up on the suit schedule 'B' property?

¶56

3. Whether the plaintiff is entitled to the possession of the suit schedule 'B' property?

¶57

4. Whether the plaintiff has made out cause of action for the suit?

¶58

5. Whether the plaintiff is entitled for the reliefs sought for?"

¶59

The trial Court on perusal of the documents on

¶60

record, observed that in all the earlier suits filed by defendant No.1, she had sought only reliefs of injunction in

¶61

9

¶62

respect of properties entirely different from the plaint schedule properties. Although defendant No.1 claimed possession and enjoyment of her property, her contention was that the plaintiff was attempting to dispossess her. In none of the suits did defendant No.1 identify or include the plaint schedule - B property so as to establish her possession over the encroached portion.

¶63

During cross examination of PW.1, defendant No.1 herself suggested that the plaintiff had executed a Rectification Deed with the original owner, Munivenkatappa, and further suggested that the plaintiff's property bearing Site No.9/4 is situated far away from her properties in Sites No.27 and 28, and the same has been admitted by her. Despite cross examining PW.1, defendant No.1 neither entered the witness box nor adduced any evidence or produced documents to demonstrate that her properties, that is, Sites No.27 and 28 are adjacent to the plaint schedule property, that is, Site No.9/4. The plaintiff, on the other hand, produced all the relevant documents pertaining to plaint schedule - A and B properties and pertaining to

¶64

10

¶65

various suits filed by defendant No.1. These documents established that the plaintiff's property and the property claimed by defendant No.1 are not adjacent. The trial Court further found that defendants No.1 and 2 without any right or title had encroached upon the plaintiff's property, demolished the compound wall erected by the plaintiff on plaint schedule - A property and occupied plaint schedule - B property to the extent of 728 sq.ft and raised a construction thereon.

¶66

Defendant No.1's contention that the plaintiff is interfering with her possession, was not proved that the plaintiff's property is situated in any of the boundaries of her property in order to show that the plaintiff has encroached her property. The description of the suit property in Ex.P42 was found to be consistent with the rough sketch and plan annexed thereto at Ex.P6. Defendant No.1 having failed to cross-examine PW.1 on the documents produced, and that defendant No.1 has failed to prove that the plaintiff has interfered with any portion of her property.

¶67

11

¶68

The trial Court held that the plaintiff has proved that he is the absolute owner of the plaint schedule - B property and established the construction raised thereon by defendants No.1 and 2 after demolishing the compound wall. Accordingly, issues No.1 to 5 were answered in the affirmative. The suit was decreed with costs, declaring that the plaintiff as the owner of the plaint schedule - A property and directing defendants No.1 and 2 to demolish the construction put up on the plaint schedule - B property and to hand over the vacant possession of the same to the plaintiff.

¶69

The learned counsel appearing for the

¶70

appellant/defendant No.1 contended that the appellant is the owner of property bearing No.27 and 28, HL No.111 situated at Rachenahalli Village, K.R.Puram Hobli, Hegde Nagar, Bengaluru purchased from her vendor Munivenkatappa. The property in respect of which plaintiff claimed relief as well as the description of the property including the number is entirely different. However, the trial Court failed to consider this aspect. It is contended that subsequent to the Sale

¶71

12

¶72

Deed dated 26.07.1999, defendant No.1 got a Khatha in respect of her property and constructed a dwelling house therein. The location of the property of defendant No.1 and the plaintiff are different. Therefore, it is contended that the trial Court relied only on the plaintiff's Sale Deed while brushing aside the defendant No.1's Sale Deed, residential construction, Khatha entries and sanctioned building plan. It is further contended that the trial Court failed to consider the fact that the property of defendants No.1 and 2 is neither situated adjacent to property claimed by the plaintiff nor the boundaries reflected in the Sale Deed and the boundaries of the defendants is not one and the same.

¶73

It is further contended that the trial Court did not

¶74

consider the judgment and decree in O.S.No.16359/2004, wherein, defendant No.1's possession was protected. Further, the details of defendant No.1’s property established through Ex.P32, under which, she purchased the property on 26.07.1999, and further affirmed by the judgment and decree in O.S.No.16359/2004. It is further c ontended that the plaintiff's suit schedule - A and B properties are entirely

¶75

13

¶76

different from defendant No.1's property. Therefore, defendant No.1 could not have encroached upon the plaintiff's property.

¶77

The learned counsel appearing for respondent No.1, on the other hand, contended that the property of respondent No.1 herein, that is, the plaintiff was admittedly comprised in Sy.No.111 situated at Rachenahalli Village, K.R. Puram Hobli. The plaintiff had purchased the property vide registered Sale Deed dated 16.08.2004, which was marked as Ex.P1. The document clearly shows that sites had already been formed and the property purchased was Site No.9/4 in Khatha No.1383 situated at Rachenahalli Village. On noticing a mistake in the measurement of the Site, a Rectification Deed was executed on 08.02.2006, wherein, the correct measurements of the Site are shown as being 54 + 58/2 from East to West and 40 + 45/2 from North to South, totally measuring 2,380 square feet and being bounded on the East by Site No.9/6, West by Road, North by Site No.9/5 and South by Site No.9/3. It is contended that Ex.P6-Layout Plan of the Shivaram Karanth Nagar had also

¶78

14

¶79

been produced where the exact location of the site purchased by the plaintiff is shown.

¶80

It is stated that defendant No.1 owns no property

¶81

in Survey No.111 or in the vicinity of the property of the plaintiff and that she has absolutely no claim to put up any construction in suit schedule - B property, which is a part of the property purchased by the plaintiff by Ex.P1. It is further submitted that defendant No.1 had not produced any documents and that even the Sale Deed under which defendant No.1 claimed had been produced by the plaintiff as Ex.P32. It is submitted that what is conveyed by Ex.P32 is that all the piece and parcel of land with building bearing No.27 and 28 in HL No.111 situated in Rachenahalli Village, Hegde Nagar, Thanisandra Group Panchayath, K.R. Puram Hobli, Bangalore South Taluk. It is clearly seen from the schedule to Ex.P32 that property conveyed is bounded on the East by Site No.49, on the West by Site No.26, on the North by Road and on the South by Sites No.29 and 30. There is no indication that the HL No.111 referred to in Ex.P32 is a reference to the survey number of the property.

¶82

15

¶83

From the Encumbrance Certificate produced as Ex.P31, it is clear that the property mentioned therein is Sites No.27 and 28 in House List No.111 of Rachenahalli Village.

¶84

It is further contended that O.S.No.16359/2004 is

¶85

filed by the appellant against Shri. Shivashankar, Secretary, Central Excise House Building Co-operative Society and her vendor Shri. Munivenkatappa and two others. It is submitted that the Society, which has formed the Layout was the Ministry of Communication Employees Co-operative Housing Society Limited and a collusive suit and an injunction obtained ex-parte against a completely different Society which had nothing to do with the development in question cannot help defendant No.1 to prove her contentions. It is further contended that the suit filed by defendant No.1 as O.S.No.26106/2018 had been admittedly abandoned by defendant No.1. It is therefore contended that the finding of the trial Court that defendant No.1 could not prove that she had any property in the vicinity of the plaintiff's site and that she had encroached into the plaintiff's property without any right, title or interest is perfectly legal and valid.

¶86

16

¶87

We have considered the contentions advanced. The plaint was filed seeking a declaration that the plaintiff is the absolute owner of suit schedule - A property as also seeking a mandatory injunction directing defendants No.1 and 2 to demolish the construction put up by them and to hand over vacant possession of suit schedule - B property. The plaintiff had based his claim on Ex.P1 - Sale Deed and Ex.P2 - Deed of Rectification. The said documents clearly show that the plaintiff had purchased Site No.9/4 with Khata No.1383 of Rachenahalli Village. The recitals in Ex.P1 - Deed of Sale specifically show that the property is situated in Sy.No.111 and that the seventh vendor is the Ministry of Communication Employees Co-operative Housing Society Limited. Ex.P32, which is admittedly the Sale Deed under which defendant No.1 claims, shows that what is conveyed was all the piece and parcel of land with building bearing No.27 and 28 in House List No.111 situated in Rachenahalli Village, Hegde Nagar. The boundaries shown are also entirely different from what is shown in Exs.P1 and P2. Further, the earlier suit, that is, O.S.No.16359/2004 on

¶88

17

¶89

which much reliance is placed by the appellant herein is filed with the following parties as is evident from Ex.P33, which reads as follows:-

¶90

”Plaintiff: Smt. Vijayamma, W/o Muniraj, Aged about 46 years, Residing at No. 27–28, 11^th Cross, Hegde Nagar, A.C. Post, Bangalore – 45.

¶91

(Represented by Advocate Sri S.I. Balaguru)

¶92

V/s.

¶93

Defendants: 1) Sri Shivashankar, Secretary, Central Excise House Building Co-operative Society, Central Revenue Bldg. No. 1, Queens Road, Bangalore. 2) Sri Munivenkatappa, S/o Sri Chandrappa, Residing at Srirampura Village, Yelahanka Hobli, Bangalore North Taluk, Bangalore. 3) Sri Narasimha Murthy, Major, C/o Central Excise House Co-operative Society No.1, Queens Road, Bangalore. 4) Sri Ramanji S/o. Ramanna, Major, C/o Central Excise Co-operative Society No.1, Queens Road, Bangalore.

¶94

(D1, 3 and 4: Exparte, D2: by Advocate Sri Lakshmi Kantha Raja Urs)"

¶95

It is therefore clear that it is not against either the plaintiff in the present suit or the Ministry of Communications Employees Co-operative Housing Society Limited that the suit was filed. The suit was contested only by defendant No.2, who was the vendor of the appellant herein. Defendant No.2 clearly contended that he had made no

¶96

18

¶97

effort to encroach into the appellant's property and that the appellant had filed that suit with an intention to grab another property near appellant's property. The contentions raised on the basis of the said suit therefore cannot aid the appellant in any manner. Further, though, it is contended that there was an order of ad-interim injunction in O.S.No.26106/2018, Ex.P36 produced by the plaintiff would show that the suit was dismissed as not pressed on 01.10.2018.

¶98

The trial Court after considering the contentions of the parties and the extensive documentary evidence placed on record, specifically found that the plaintiff had title in respect of Site No.9/4 in Sy.No.111 as claimed by her and that defendant No.1 had failed to prove that she had any right, title or interest in suit schedule - B property. From an examination of the two Sale Deeds and the materials on record, we agree with the finding of the trial Court that the property purchased by the plaintiff was Site No.9/4 comprised in Sy.No.111 of Rachenahalli Village. It was also clearly found that defendant No.1 had encroached into suit

¶99

19

¶100

schedule - B property and had constructed a compound wall. The oral evidence led by the plaintiff has also been specifically considered by the trial Court in coming to the conclusion that defendant No.1 did not own property in the vicinity of the plaintiff’s property.

¶101

Having considered the contentions advanced, the evidence and the documents placed on record, we are of the opinion that the findings of the trial Court are well justified and do not require any interference in this appeal. The appeal accordingly fails and is dismissed with costs.

¶102

All pending interlocutory applications shall stand disposed of .

¶103

Sd/(ANU SIVARAMAN) JUDGE

¶104

Sd/(VIJAYKUMAR A. PATIL) JUDGE

¶105

cp*

Smt Vijayamma v. Shivakumar D

Case brief

What is this about?

What did the court decide?

Smt Vijayamma v. Shivakumar D

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Smt. Meena P Vs Sri. B.V. Subbarayan

Dr. C.D. Venkatesh Vs State of Karnataka

Sree Taralabalu Jagadguru Vs Sri R Shivakumara Swamy

M/S Sammy'S Dream Land Co. Pvt. Ltd. Vs Shri Muniswamappa

Dr. Viswanatha Bheemashankara Deepali Vs the Competent Authority

Sri Somashekar Vs M/S Saijayini Housing Developers