Smt v Shobha Vs Sri K Sreenivasa

SRI. K. SREENIVASA S/O KRISHNE GOWDA, AGED ABOUT 38 YEARS, R/AT 11^TH CROSS, KAIWARANARAYANASWAMY ROAD, WARD NO.3, NEAR BYLAMMA HOUSE, KAMMAGONDANAHALLI, BANGALORE - 560 015.

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SMT V. RADHA MANI W/O K R SRINIVAS, AGED ABOUT 42 YEARS, R/AT "ANIL GRISISH NILAYA" NO.E-264, 11^TH CROSS, WARD NO.3, BEHIND SRIRAMA TEMPLE, KAMMAGONDANAHALLI, JALAHALLI WEST, BANGALORE - 560 015.

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HC-KAR

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SRI. KOMMURI VEERABHADRA RAO S/O LATE MEERA SAHEB, AGED ABOUT 68 YEARS, R/AT NO.1799, PIPELINE ROAD, PRASHANTHNAGAR, T. DASARAHALLI, BANGALORE- 560 057.

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SRI. INDRASENA RAJU S/O P SIDDAM RAJU, AGED ABOUT 71 YEARS, R/AT NO.11/4, S.V. NAGAR, TIRUPATHI-02 ANDHRA PRADESH.

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SMT. K. NAGAKANAKA DURGA W/O KOMMURI VEERABHADRA RAO, AGED ABOUT 66 YEARS, R/AT NO. 1799, PIPELINE ROAD, PRASHANTHNAGAR, T. DASARAHALLI, BANGALORE - 560 057.

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…RESPONDENTS

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(BY SRI. ARAVIND M NEGLUR .,ADVOCATE FOR R1, R2, R3 & R5; V/O DATED 12.04.2019, NOTICE TO R4 IS HELD SUFFICIENT)

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THIS RFA IS FILED U/ORDER 41 RULE 1, R/W SEC 96 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 07.11.2012 PASSED IN O.S.NO.8749/2004 ON THE FILE OF V ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, DISMISSING THE SUIT FILED FOR DECLARATION, MANDATORY INJUNCTION, POSSESSION AND PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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HC-KAR

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ORAL JUDGMENT

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This appeal is by the plaintiff, being aggrieved by the judgment and decree dated 07.11.2012, passed in O.S.No.8749/2004 on the file of V Additional City Civil Judge, Bengaluru (hereinafter referred to as 'the Trial Court'), by which the trial Court has dismissed the suit of the plaintiff for declaration and consequential relief of possession.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the plaintiff and the respondents were the defendants.

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Case of the plaintiff is that she is the absolute owner in possession and enjoyment of house site bearing No.3, forming part of land in Sy.No.73 of Kommagondanahalli Village, Yeshwantpura Hobli, Bengaluru North Taluk (hereinafter referred to as 'the suit schedule property'), she having acquired the same in terms of deed of sale dated 29.10.2004 from one Sri. V.K. Krishnappa. The said Sri. V.K. Krishnappa had in turn inherited the suit schedule property from his mother Smt. Govindamma, who in turn had acquired the title of the land in said Sy.No.73 under a partition deed dated 21.01.1965. The

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said land in Sy.No.73 totally measures 32 guntas, in which 13 sites were formed, one of which is site No.3, which was purchased by the plaintiff as above. After the purchase, plaintiff obtained her name entered in the revenue records in the Dasarahalli City Municipal Council and has been paying the tax.

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Defendants being utter stranger to the suit property, having no right, title or interest over the same, had come near the suit property and started to dig with an intention of laying foundation and to put up construction on the suit property on 22.11.2004, claiming that the suit property had been a part of the layout which was formed by certain Anjaneya House Building Co-operative Society Ltd. That late Govindamma and her children had executed power of attorney in favour of said Anjaneya House Building Co-operative Society Ltd., who in turn had formed a layout and Site No.3 was sold in favour of one defendant No.4-Indrasena Raju. That the said defendant No.4Indrasena Raju in turn had sold the same in favour of one Kommuri Veerabhadra Rao-defendant No.3 who had obtained the khata in his name. That the said defendant No.3- Kommuri Veerabhadra Rao had sold the suit property in favour of

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defendant Nos.1 and 2 in terms of deed of sale dated 25.02.2004.

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Initially, the plaintiff had filed suit only for permanent injunction against defendant No.1 and later sought amendment and also impleaded defendant Nos.2 to 5.

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Written statement is filed by defendant Nos.1 and 2 denying the plaint averments. It is claimed that Sri. V.K. Krishnappa had no right, title or interest over the suit property to convey it, in favour of the plaintiff. That Sri.K.R.Srinivasadefendant No.1 and his wife are the absolute owner of the suit property. They having acquired the same in terms of deed of sale dated 25.02.2004 from their vendor defendant No.3Kommuri Veerabhadra Rao. Ever since then they have been in possession and enjoyment of the suit property. Suit property earlier formed part of land in Sy.No.73, over which a layout was formed by Anjaneya House Building Co-operative Society Ltd., which allotted the sites to its members, one of whom was defendant No.4-Indrasena Raju, the original allottee.

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That land which originally belonged to Govindamma, who along with her sons Chikkavenkatramanappa, V. K. Ramu,

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V. K. Krishnappa (the alleged vendor of the plaintiff), V.K. Jayaram and V. K. Venkatramu had executed power of attorney in favour of M/s. Anjaneya House Building Co-operative Society Ltd., in respect of 25 guntas of land. Thus, in terms of said power of attorney, Govindamma and her sons had authorized said Anjaneya House Building Co-operative Society Ltd to sell the suit schedule property. Accordingly, the said Society had bifurcated the land into residential sites of different dimensions. As such, neither V. K. Krishnappa, the vendor of the plaintiff nor the plaintiff had any right over the suit property. It is claimed that the plaintiff, being the close relative of V. K. Krishnappa and her sons, was aware of the layout having been formed by Anjaneya House Building Co-operative Society Ltd, taking advantage the same, a false suit has been filed. Hence, sought for dismissal of the suit.

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Based on pleadings the trial Court framed the following issues for its consideration:

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''ISSUES

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1. Does the plaintiff prove her lawful possession over schedule property?

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2. Does the plaintiff prove the interference caused by the defendant with her possession?

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3. What order or decree?

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Additional Issues:

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1. Whether the plaintiff proves that she is the absolute owner in title to the suit property?

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2. Whether the plaintiff further proves that the sale deeds dated 15.2.2000 and 25.4.2004 are null and void ?

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3. Whether the plaintiff proves that during pendency of the suit the defendant illegally put temporary shed in the suit property by using hallow blocks on south east corner of the suit property measurement East West 33.5ft and North-South 7ft as contended in the plaint ?

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4. Whether the plaintiff is entitled for possession of "B" schedule property?''

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Plaintiff examined herself as PW1 and one Girija examined as PW2 and exhibited 14 documents marked as Ex.P1 to Ex.P14. Defendant No.1 examined himself as DW1 and exhibited 10 documents marked as Ex.D1 to Ex.D10.

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The trial Court on appreciation of the evidence answered issue Nos.1, 2 and the additional issue Nos.1 to 4 in the negative and consequently dismissed the suit. Being aggrieved, the plaintiff is before this court.

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Learned counsel for the plaintiff/appellant herein taking this Court through the records submits that the trial Court has proceeded on wrong premise and has thus misread the evidence led by the parties on record. The trial Court has

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also not taken into consideration the admitted position of the facts of the matter and has unnecessarily casted the burden on the plaintiff to prove the case. He submits that both the plaintiff and the defendants have derived their title to the suit property from common owner of the property namely Smt. Govindamma. That there is no dispute of the fact that Sri. V.K. Krishnappa, was the son of Govindamma. That being the case, execution of deed of sale by Sri. V.K. Krishnappa in favour of plaintiff could not have been doubted by the trial Court merely on the premise of Ex.P2-the genealogical tree was prepared at the instruction of Sri. V.K. Krishnappa. With regard to admission of the relationship, learned counsel for the plaintiff/appellant herein refers to paragraph No.16 (iv) of the written statement and contends that Smt. Govindamma being the mother of Sri. V.K. Krishnappa having been admitted, the trial Court could not have suspected the same.

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He further submits that though the defendants had set up a claim of said Govindamma and her sons having executed power of attorney, no piece of paper which is legally admissible is brought on record. He submits that it was incumbent upon the defendants to have provided this initial

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information of transfer/conveyance of property in the manner known to law from said Govindamma to the aforesaid Society. He further submits that even defendant No.4-Indrasena Raju, who according to defendant No.1 was the original allottee of the Society, no piece of evidence is produced to show and justify the said claim of defendant No.4-Indrasena Raju being the original allottee and the said Society having conveyed the property in his favour.

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Referring to document at Ex.D4, deed of sale dated 15.02.2000 executed by defendant No.4-Indrasena Raju in favour of defendant No.3- Kommuri Veerabhadra Rao and also Ex.D5 and Ex.P15, which is executed by defendant No.3Kommuri Veerabhadra Rao in favour of the defendant No.1, he submits that there is no reference of any nature whatsoever in the said deeds of sale regarding said Society having formed the layout and having allotted the site, let alone, there being any reference to property belonging to Govindamma. Thus he submits, since the plaintiff has discharged the initial burden, the defendants, who had set up a title on their own, ought to have discharged their burden, which the trial Court has failed to appreciate. Hence seeks for allowing of the appeal.

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Per contra, learned counsel for the

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defendants/respondents submits that the deed of sale as per Ex.P13 executed by defendant No.4-Indrasena Raju in favour of defendant No.3- Kommuri Veerabhadra Rao was dated 15.02.2000 as well as the deed of sale dated 25.02.2004 as per Ex.P14, is by defendant No.3- Kommuri Veerabhadra Rao in favour of defendant Nos.1 and 2 was much prior to the deed of sale executed by Sri. V.K. Krishnappa in favour of the plaintiff, which is dated 29.10.2004. Therefore, the plaintiff had to stand on its own merits of the case instead of finding benefit on the weakness of the case of the defendants. He submits, initially the suit was one for injunction and later it was sought for declaration. Therefore, the suit also suffered from limitation. He submits that the trial Court on appreciation of evidence has come to just and proper conclusion warranting no interference at the hands of this Court. Hence, sought for dismissal of the appeal.

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Heard and perused the records.

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Points that arise for consideration are:

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(i) Whether the plaintiff/appellant has proved she being the owner of the suit schedule property?

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(ii) Whether the plaintiff/appellant has proved that the defendants/respondents have encroached upon her property?

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(iii). Whether the defendants/respondents have proved that they are the absolute owners in possession of the property having purchased the same in terms of Exs.P13 and Ex.P14 ?

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(iv). What order?

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There is no dispute of the fact that land in Sy.No.73 originally measuring 32 guntas belonged to Govindamma. There is also no dispute of the fact that said Govindamma had five sons, namely Chikkavenkatramanappa, V. K. Ramu, V. K. Krishnappa (the alleged vendor of the plaintiff), V.K. Jayaram and V. K. Venkatramu, (as admitted by the defendants at paragraph 16. (IV) in the written statement). Plaintiff has set up the title based on Ex.P1 deed of sale dated 29.10.2004 executed by V. K. Krishnappa Son of Govindamma. That in addition to Ex.P1, she has produced documents in the nature of Exs.P7 to P9 and P12 which are the revenue records as well as the tax paid receipts. Plaintiff has also produced the photograph at Exs.P10 and P11.

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HC-KAR

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That since defendants in the written statement as noted above have admitted Sri. V.K. Krishnappa being the son of Govindamma, the finding arrived at by the trial Court at paragraph No.14 of its judgment, declining to accept Sri. V.K. Krishnappa to be the son of Govindamma cannot be sustained.

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Ex.P1-Sale deed read in the light of the document at Exs.P7 to P9 and P12 being the revenue records and tax paid receipts and in the light of admission of Sri. V.K. Krishnappa being the son of Govindamma, lends probability to the case of the plaintiff of she having purchased and being in possession of the suit schedule property as contented. This conclusion stands fortified when compared to the pleading and evidence set up by the defendants. That is, defendant Nos.1 and 2 on the other hand have claimed that the suit property, an extent of 25 guntas of land in Sy.No.73 had been conveyed by Govindamma and her five children in favour of certain Anjaneya House Building Co-operative Society Ltd. No legally acceptable evidence in these regards are brought on record even as taken note of by the trial Court.

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The further claim of the defendant Nos.1 and 2 is that defendant No.4-Indrasena Raju, who is the vendor of the vendor of the defendant Nos.1 and 2 being the original allottee is also not substantiated by any document whatsoever. Perusal of Ex.P13-Sale deed dated 15.02.2000, purportedly executed by said defendant No.4-Indrasena Raju represented by his GPA holder i.e., defendant No.5-Smt. K. Nagakanaka Durga, do not indicate anything whatsoever of said defendant No.4-Indrasena Raju being the original allottee of the site nor does it indicate that the said site forms part of a layout which was formed by Anjaneya House Building Co-operative Society Ltd. There is no whisper with regard to tracing of the title in consonance with the pleading set up by the defendant Nos.1 and 2.

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Interestingly, in the deed of sale, dated 25.02.2004 produced at Ex.P14, purportedly executed by defendant No.3Kommuri Veerabhadra Rao (purchaser under deed of sale as per Ex.P13) in favour of defendant Nos.1 and 2, following recitals is found at page No.2:

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''Where as Site No.3 in khata No.73 situtated at Kommagondanahalli Village, Yeshwantpura Hobli, Bengaluru North Taluk (morefully described in the schedule hereunder) being the ancestral property belonged to Mr. Indrasena Raju has given power of attorney in favour of Smt. K. Nagakanaka

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Durga (K.N.K Durga) on dated 20.02.1995 and on the said power of attorney, GPA holder K.N.K. Durga had executed absolute sale in favour of Sri. Kommuri Veerabhadra Rao, by registered deed No.12094/1999-2002 stored in CD No.30 in the office of Sub-Registrar of Bengaluru North Taluk and ever since the date of registration the vendor is in actual possession and enjoyment of the same free from all encumbrance.''

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The aforesaid recital in the sale deed takes away the

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entire basis of the case of defendant Nos.1 and 2. Though it is sought to be contended by learned counsel for the defendant Nos.1 and 2, there appears to be wrong ambiguous entry in the language. This Court cannot accept the said submission inasmuch as there appears to be no such ambiguity. Even if there were to be any such ambiguity as sought to be contended, the sale deed as per Ex.P13 ought to have been clear and categorical under which defendant No.4-Indrasena Raju had acquired the property. Thus comparing the case of the plaintiff of she having acquired the property in terms of Ex.P1 and she being in possession of the property as per Ex.P7 to 9 and 12, with the recitals of the documents as per Ex.P13 and Ex.P14 as noted above, preponderance of probability have

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to lean in favour of the plaintiff. Thus this Court is of the considered view that the trial Court has erred in not appreciating this aspect of the matter in coming to wrong

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conclusion of plaintiff not having proved her title over the property. Point No.1 is answered accordingly.

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As regards the possession is concerned, plaintiff has produced Ex.P10 and Ex.P11, which are the photographs along with the negatives, which according to the plaintiff indicates that the process of construction of a structure of the suit property by defendant Nos.1 and 2 during the pendency of the suit, which constrained the plaintiff to seek amendment by incorporating paragraph No.5A to the plaint, which reads as under:

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'' 5(a). It is submitted that the Defendant herein subsequent to service of summons issued by this Hon'ble Court have completed the construction of the shed i.e., by over night. It is submitted the Defendant has no right, title and interest over the suit schedule property, inspite of that he trespassing upon the Suit Schedule Property has put up a shed measuring East to West 33.5 feet and North to South 10 feet on the southern side of the Suit Schedule Property. The said property morefully described at the schedule and herein after referred to as the 'B Schedule property'. The construction put up by the Defendant is without any authority of law. As such he may be directed to demolish the 'B schedule property' at his costs. On his failure to do so then a Commissioner be ordered to be appointed for demolishing the same at The cost of the Defendant. ''

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At this juncture, learned counsel for the

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plaintiff/appellant submits that there has been no cross - examination to this extent of the pleading and the evidence of the plaintiff by the defendants.

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Be that as it is. It is settled position of law once the plaintiff has established the title as noted above and in the light of the documents at Exs.P7 to P9 and P12 and the evidence with regard to Exs.P10 and P11, the consequential relief of possession also shall follow. Accordingly, point No.2 is also answered.

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Learned counsel for the plaintiff/appellant points out to the suggestion made on behalf of defendant Nos.1 and 2 to the witness-plaintiff-PW.1 as found at page No.4 recorded on 25.01.2008, which reads as under:

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''On 23.11.2004, the defendants laid foundation in the suit schedule property. We went there and protested and then we made a complaint to the police. The defendants did not stop construction. They completed the construction over night and entire construction was over by 26.11.2004. The defendants occupied the house constructed in the suit property on 27.11.2004 and started living there. There was a house in the suit property on the date of suit''

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While addressing the point No.1, this Court has

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already come to the conclusion of defendants not having proved the case set-up by them i.e., Anjaneya House Building

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Co-operative Society Ltd having acquired the title from Govindamma and defendant No.4-Indrasena Raju being the original allottee. Irresistible conclusion has to be drawn that

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HC-KAR

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the defendants have failed to substantiate and justify the case

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set-up by them. Consequently, appeal stands allowed with the following :

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ORDER

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(i) Judgment and decree dated 07.11.2012, passed in O.S.No.8749/2004 by the V Additional City Civil Judge, Bengaluru is set aside.

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(ii) Plaintiff is declared to be the owner of the suit schedule property. Defendants shall hand over vacant possession of the suit schedule property.

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(iii) Defendant Nos.1 and 2 shall demolish the structure put up by them over the suit schedule property and shall hand over the same to the plaintiff within three months from the date of receipt of certified copy of this order.

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Sd/(M.G.S. KAMAL) JUDGE

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RL/- List No.: 1 Sl No.: 7

Smt v. Shobha v Sri K Sreenivasa

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Smt v. Shobha v Sri K Sreenivasa

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