A.S. Bopanna
1. The appellant herein is the plaintiff in O.S. No. 5829/2000. The suit in question was filed seeking for the relief of declaration that the plaintiff is the absolute owner of the suit schedule property and for the consequential relief of permanent injunction. The Court below has dismissed the suit by its judgment and decree dated 15.12.2010. The plaintiff has therefore assailed the said judgment. The parties would be referred to in the same rank as assigned to them before the Court below for the purpose of convenience and clarity.
2. The case of the plaintiff is that he is the absolute owner of the property bearing No. 3, (Assessment No. 41) situate at Moodalapalya village, Nagarabhavi Dhakale, Yeshwantpur Hobli, Bangalore North Taluk. The said property belonged to Sri Poojappa i.e., the vendor of the plaintiff who in turn had purchased the same from Sri B.M. Rajanna vide sale deed dated 05.05.1968. The said Sri Poojappa who had purchased the property is stated to have secured the revenue records in his name and thereafter formed a layout in the property bearing Sy. Nos. 41 and 67 which is now known as ''Kalyananagar'' in Nagarabhavi. In that regard, the suit schedule site is one such site. The plaintiff therefore entered into an agreement of sale dated 18.02.1989 with Sri Poojappa and took delivery of the vacant possession on the same day. In consideration of the same, a general power of attorney and affidavit were also executed in favour of the plaintiff. The plaintiff accordingly got the khatha transferred to his name in the village panchayat and claims to be in possession and enjoyment of the property. Subsequently, Sri Poojappa is stated to have executed the sale deed in favour of the plaintiff under which he acquired absolute right to the suit schedule property and also applied for transfer of khatha in the records of the Bangalore Mahanagara Palike.
3. The plaintiff further contends that the defendant is the neighbour of the plaintiff and is residing near the schedule property. The defendant was therefore disturbing the peaceful possession and enjoyment of the property and in that regard, he also filed objections before the Bangalore Mahanagara Palike in the proceedings relating to transfer of Khatha. When this was the position, the defendant is alleged to have trespassed into the suit schedule property on 24.08.2000 and attempted to put up compound wall. Though the plaintiff lodged a complaint with the jurisdictional police, no action was taken indicating that the dispute is of civil in nature. Accordingly, the plaintiff has instituted the suit seeking for the relief contending that the defendant has been claiming right and title to the suit schedule property based on certain fabricated documents. Hence, the instant suit is filed.
4. The defendant on being served with the suit summons, has appeared and filed the written statement. The case put forth by the plaintiff has been disputed by the defendant by contending that the agreement entered into as also the subsequent documents executed by Sri Poojappa are all false. On the other hand it is contended that the documents relied on are all created by the plaintiff in collusion with Sri Poojappa, Sri Lakkappa and Sri Krishnappa with malafide intention. The allegation that the defendant was interfering with the possession and had trespassed into the property on 24.08.2000 is also denied. The defendant contends that the plaintiff is a stranger to the defendant and no such site as claimed exists in the locality. The plaintiff by providing wrong description is attempting to grab the eastern portion of Site No. 79 formed out of Sy. No. 41 which belongs to the plaintiff who is in possession of the same since the year 1983.
5. The defendant contends that earlier, one Sri Poojappa and his sons had made illegal attempts to interfere with the possession and enjoyment of site No. 79 formed in Sy. No. 41 measuring east to west 76 ft and North to South 49 ft situate in III Main, 5th Cross, Kalyannagar, Nagarbhavi Main Road, Bangalore-72 by falsely claiming that they are in possession of the suit schedule property. The defendant herein had therefore filed the suits in O.S. No. 1072/1989 and O.S. No. 5105/1989 seeking for the relief of permanent injunction. The said suits were decreed and the permanent injunction is operating against them and persons claiming under them. In the said proceedings, the Court after conducting detailed enquiry held that the defendant is in lawful possession and enjoyment of the said site No. 79 measuring to the extent indicated above. The said judgments have attained finality. The said Sri Poojappa, Sri Lakkappa and Sri Krishnappa having failed in their attempts have now instigated the plaintiff to file the instant suit claiming the extent of 50 ft east to west and 30 ft North to South indicating the same as site No. 3. But, the boundaries given would indicate that the alleged site in fact is a portion of the defendant''s property. The plaintiff is none other than the nephew of Sri Poojappa who was the defendant in O.S. No. 5105/1989.
6. The defendant contends that the deceased husband was working as Special Vehicle Driver in the Indian army and retired front service in the year 1982. In the year 1983, he became the member of Malleshwaram Tailoring Cooperative Society and the said society allotted site No. 79 formed in Sy. No. 41 of Nagarabhavi to him. The society executed a registered sale deed dated 28.04.1983 and delivered possession. Thereafter the defendant constructed the house in an area measuring 25 ft X25 ft on the North Western portion of the said site and put up a foundation in an area measuring 10 X 10 ft for car shed and also put a foundation in an extent of 30 ft X 40 ft for constructing a house. In the year 1987-88, Mallathahalli Grama Panchayat registered the khatha in the name of he defendant and the tax was also paid. Against the khatha registration, Sri Poojappa had filed an appeal before the Assistant Commissioner which came to be dismissed on 18.10.1996. It is subsequent to the same, the said Sri Poojappa and others made attempt to interfere which resulted in the suits indicated above. In the said proceedings, a Court Commissioner after conducting spot inspection with the help of Surveyor of land records had submitted the report stating that the defendant''s property is Site No. 79 measuring 76 ft East to West and 40 ft North to south and also stated that there is a house and the defendant is living therein. No objections were filed to the said Commissioner''s report. Hence, it is contended that the plaintiff has come up with a false case as if he is in possession of the site though the address given in the plaint itself is a different one. The very existence of site No. 3 is disputed and it is contended that the suit is also barred by resjudicata in view of the earlier proceedings. Hence, the dismissal of the suit is sought.
7. The Court below after taking note of the rival contentions has framed as many as 8 issues for is consideration which read as hereunder:
1. Whether the plaintiff proves that he is the absolute owner of suit schedule property?
2. Whether the plaintiff proves the alleged interference of the defendant?
3. Whether the defendant proves that there is no such property bearing No. 3 in existence as shown in the schedule of the plaint?
4. Whether the defendant proves that the plaintiff is claiming falsely his portion of property with malafide intention?
5. Whether the suit is barred U/sec. 11 of CPC?
6. Whether the plaintiff is entitled to declaratory relief as prayed for?
7. Whether the plaintiff is entitled to permanent injunction as prayed for?
8. What order or decree?
8 Heard Sri C.R. Gopalaswamy, learned counsel for the plaintiff and Sri G.A. Srikantegowda, learned counsel for the defendants and perused the appeal papers including the records received from the Court below.
9. The line of contention on behalf of the parties is as raised in the rival pleadings and the evidence has been referred to in detail to substantiate their rival contentions. In addition to the documents relied upon before the Court below, the learned counsel for the plaintiff would contend that the Court below has rejected the contention of the plaintiff mainly on the ground that there is no documents to establish the title of the vendor of the plaintiff. In that regard, the sale deed dated 05.05.1968 under which Sri Poojappa has purchased the property is produced and therefore when the title of the vendor of the plaintiff is established, the other documents could be relied on is the gist of the contention with reference to the documents already available on record. The gist of the contention on behalf of the defendants is that the very vendor of the plaintiff and his sons have failed in the earlier suits and as such when the plaintiff is claiming under them, even though the plaintiff was not a party to the earlier suit, the material relied upon therein and the findings rendered would bind and estop the plaintiff from making claim over the very same property once over again even if it is held that the suit is not barred by resjudicata.
10. In the light of the rival contentions, the following points arise for consideration in this appeal:
i) Whether in the facts and circumstances of the case, the claim of the plaintiff to be the owner of the suit schedule property could be accepted ?
ii) Whether the evidence tendered in O.S. No. 1072/1989 and O.S. No. 5105/1989 and the judgment therein can also form the basis to deny the relief to the plaintiff ?
iii) Whether the judgment and decree passed by the Court below calls for interference ?
11. The plaintiff in order to contend that he is the owner of the site bearing No. 3 and that the said site has been formed in the property bearing Sy. Nos. 41 and 67 of Nagarabhavi which belong to Sri Poojappa has relied on the extract of the RTC for the periods 1988-89 onwards which are marked at Exhs. P1 and P2. The plan stated to have been approved by the village panchayat is produced at Ex. P3. It is on that basis the plaintiff contends that the said Sri Poojappa has entered into an agreement dated 18.02.1989 agreeing to sell site No. 3 in favour of the plaintiff. The agreement is marked at Ex. P1 and a power of attorney of the same date is marked as Ex. P4. The extract of the assessment list is at Ex. P5 and the tax paid receipt is at Ex. P6. The sale deed said to have been executed by Sri Poojappa is dated 30.04.1999 and is available at Ex. P7. Based on the said documents, the plaintiff claims right in respect of the property.
12. As against the same, the defendant has claimed that the property to which the plaintiff has claimed right is a portion of the property which belongs to the defendant and the right is claimed under the sale deed at Ex. D3 which is dated 28.04.1983 and the defendant claims to have come in possession of the site and the possession certificate dated 01.08.1984 is marked at Ex. D4. Further the tax paid receipts in respect of the property is also produced and marked at Exhs. D6 to D12 and the documents at Exhs. D14 to D22 are the telephone bills and the voter ID card to indicate that the defendants are the residents of the property. The documents at Exhs. D23 to D27 are the self assessment receipts and payment of Tax to the Bangalore Mahanagara Palike. From the said documents, it would be clear that the documents produced by the defendants to claim title to the property is earlier in point of time to the one claimed by the plaintiff even if the agreement of the year 1989 is taken into consideration. However, since contentions are also raised to substantiate that a site bearing No. 3 exists and on the contrary it is contended that the plaintiff is attempting to claim the portion of the property which belong to the defendant, the other aspects of the matter requires to be noticed based on the evidence available on record.
13. The learned counsel for the plaintiff would rely on the evidence of PW. 1 who has with reference to the above documents stated that the property bearing Sy. No. 41 and 67 in the area named as Kalyananagar, Nagarbhavi, Bangalore belong to Sri Poojappa which was purchased by him from his vendor Sri B.M. Rajanna. Since the sale deed dated 05.05.1968 had not been produced before the Court below, a copy of the same is filed in this appeal as additional document along with an application under Order 41 Rule 27 of CPC in Misc. Cvl. 10306/2011. Though the said application has been objected to by the learned counsel for the defendants, the same is allowed and the document is taken on record to notice as to whether the same would in any way alter the situation even if it is noticed that the Court below had observed with regard to non-production of the same. The said document no doubt would refer to the purchase of old site No. 67 and New No. 69. The same does not bear reference to Sy. No. 41. Further, what is also to be noticed from the said document is that Sri Poojappa himself had relied on the said document in O.S. No. 5105/1989 and the marking is seen on the said document yet was not of assistance to him in that suit. The plaintiff PW. 1 has further stated with regard to the agreement under which he has acquired right to the property on 18.02.1989 and also the general power of attorney and the subsequent sale deed. He has further referred to the complaint said to have been lodged by him when the defendant is alleged to have trespassed into the property. Though he has referred to a layout being formed by his vendors as per Ex. P3, in the cross examination he would admit that it is not an approved layout and that he has no right to site No. 79 measuring 76 ft X 40 ft and has no knowledge as to whether that site belongs to the defendant. He also pleads ignorance of the earlier two suits which was filed in respect of site No. 79. He states that towards western side of site No. 3 claimed by him is the site of Subramanya but, he states that he does know him. However subsequently, he states that he knows Subramanya and his wife but contends that there is no site No. 79. He also states that the khatha of site No. 3 has not been transferred to his name because there was dispute. The evidence of one Sri R. Ramesh (PW. 2) is relied on to support the case of the plaintiff. The said witness claims that he has certain lands near the suit schedule property and as such he is aware of the location and identity of the same. He claims knowledge of the transaction under which the plaintiff purchased the property. In the cross examination, he states that his property is situate at a distance of 100 mts and there is no house in that property but, there is nothing on record to show that he owns the property near the property of the plaintiff though he denies the suggestion in that regard. The said witness also states that there is no approved plan in respect of Site No. 3 in Sy. Nos. 41 and 67.
14. One other witness Sri Kaverappa has been examined as PW. 3. The said witness also states that he has certain lands near the suit schedule property and as such he knows the location of the property belonging to the plaintiff and also knows the sale transaction by which the plaintiff purchased the property. In the cross examination, he states that he knows the plaintiff and Sri Poojappa for the last 20 years. He is residing in Thimmenahalli and that he does not have any other property. He states that the suit site is vacant and the defendant has constructed a house in another site leaving some portion vacant which is similar to the contention of the defendant. He admits that the defendant has constructed a house in Site No. 79 Corporation No. 28 and the eastern side of the house is vacant and there are banana plants. From the evidence tendered on behalf of the plaintiff, the evidence of PW. 2 and PW3 does not appear to be very material to support the case of the plaintiff inasmuch as they being the residents of the area itself has not been properly established nor their claim about the knowledge of the transaction is not very convincing. Further, their evidence also does not establish that the site claimed by the plaintiff is situate in an approved layout as claimed by the plaintiff. On the other hand, they have admitted that it is not an approved layout and there is subtle statements that is a part of the site as claimed by the defendant as extracted in the cross-examination.
15. In the light of the above, the aspect for consideration is as to whether the documents relied on by the plaintiff would be sufficient to establish the absolute right over the suit schedule property and as to whether that would establish the identity and location of the site claimed by the plaintiff. In order to rebut such claim, the wife of the original defendant Smt. Adi Lakshmi has been examined as DW. 1 wherein she refers to the details under which the property bearing site No. 79 which is presently bearing No. 28 with its boundaries described was purchased under a sale deed dated 28.04.1983 and possession dated 01.08.1984 was given under a certificate. The manner of payment of the betterment charges has been stated and the documents relied upon by her which has been noticed by me hereinabove has also been referred to. No doubt, the learned counsel for the plaintiff vehemently contended that the claim of the defendant cannot be in respect of the same property inasmuch as the document relied upon i.e., the sale deed and the Tax Paid Receipt contains certain alterations with regard to the number. In that regard, I see no material alterations and the fact that the old number and the new numbers are being shown in the documents cannot be lost sight. Hence, Point No. (i) is held against the plaintiff.
16. Apart from the said documents, the defendant has relied upon the documents at Exhs. D29 to D36 being the proceedings in the earlier suits and the related RFA No. 10/1994 wherein the report of the Commissioner has been filed. The learned counsel for the plaintiff would however contend that the said findings therein would not bind the plaintiff. On the aspect relating to resjudicata, the Court below in any event has held the said issue in favour of the plaintiff. In my view, that in itself or the fact that the plaintiff was not a party to the earlier proceedings in O.S. Nos. 5105/ 1989 and 1072/ 1989 cannot be a reason to ignore the said proceedings insofar as arriving at a conclusion in the instant case. I am of the said opinion for the reason that the plaintiff herein is claiming right in respect of the property which according to him is a portion of the larger property which belonged to Sri Poojappa. Hence, the claim is not independent of the right which was stated to have been possessed by Sri Poojappa to which the plaintiff claims to have acquired right by purchasing it from him. If that be the position, when Sri Poojappa himself had claimed right to the larger property and more particularly to the portion claimed by the defendant herein and in the said proceedings, if Sri Poojappa himself and his sons have failed, certainly the same would have a bearing on the instant proceedings. Therefore the documents relating to the earlier proceedings needs to be examined in the instant proceedings.
17. The suit in O.S. No. 5105/1989 had been instituted by the original defendant herein seeking for permanent injunction against the defendants when the issue arose with regard to defacing of the road running from Moodalapalya to Jnana Bharathi and the Cross roads. The said road was adjacent to site No. 79 belonging to the defendant herein. Sri Poojappa was the second defendant in the said suit. While claiming the right in that regard the defendant herein, who was the plaintiff in the said suit had claimed title and possession in respect of the property bearing No. 79 having acquired the same from the Malleshwaram Tailoring Cooperative Society since such right had been denied by Sri Poojappa. The Issue No. 1 was as to whether the defendant herein who was the plaintiff therein would prove that he is in lawful possession of the site bearing No. 79 and 81 on the land bearing old No. 41 of Nagarabhavi village. At this juncture, it is also necessary to notice that the issue herein was with regard to the property in Sy. No. 41 and the plaintiff herein claims the property to be in Site Nos. 41 and 67 and even the additional document relied on relates to Sy. No. 67 new No. 69 only and there is no reference to Sy. No. 41. In the said suit, the said issue was held in the affirmative holding that the defendant herein is the owner of the property.
18. In the said suit itself there was reference to the earlier suit in O.S. No. 1072/ 1989 and the appeal in RFA No. 10/1994 arising therefrom. Insofar as the validity of the sale deed under which the Malleshwaram Tailoring Cooperative Society had sold the site to Sri Subramanya, the necessary documents were secured from the Cooperative Societies Department and one Sri Mohan Kumar who was working as Inspector of Cooperative society was examined. The evidence of the said witness therein would establish the fact that the site in fact had been sold by the Society to the predecessor of the defendants herein. The son of Sri Poojappa viz., Sri Krishnappa was examined in the said suit and he had stated about retaining certain sites but, had failed to produce any documents. In the said proceedings, the defendants therein had not stated with regard to the sale of the suit schedule property to the plaintiff herein. In the earlier suit bearing O.S. No. 1072/1989 another son of Sri Poojappa viz., Sri Lakkappa was examined. In the cross examination therein, he would admit about his father having sold the property to one Venkoba Rao but, would however deny that he had formed house sites and sold them to various persons through Malleshwaram Tailoring Cooperative Society.
19. Apart from the nature of the proceedings therein, what is also relevant is that in RFA No. 10/1994 a Commissioner had been appointed for local investigation with the assistance of surveyor of Survey department. By Court Commissioner, the location of Sy. Nos. 67 and 41 as also the location of the site No. 79 belonging to the defendant herein was to be looked into. The report which is marked at Ex. D36 herein would indicate that the Court Commissioner had looked into the village map and had prepared the location of the property in Sy. No. 41 and the sketch of site No. 79 showing the location of the house in the site and the boundaries to the said site was also prepared. The sketch would clearly indicate the site No. 79 measuring 76ft East to West and 40ft North to South. From the dimension of the site, it would be clear that apart from the built up area there is a vacant area. The said sketch if considered along with the photographs which are available at Exhs. D38, D40 and D41, it would disclose the house and the banana plantation in the open space and in that regard, the admission of PW. 3 that there is a banana plantation would become relevant. Hence, the said documents would disclose that in the guise of claiming right to the suit schedule property the plaintiff is seeking to claim right over a portion of the property belonging to the defendant. If at all the plaintiff has any right over any other site, which he is stated to have purchased from Sri Poojappa, it would be open for him to enjoy the same but, in any event, cannot claim right over the property of the defendant in the present facts. Point No. (ii) is therefore held against the plaintiff. In the background of the above what is also to be noticed is that the plaintiff claims that he had entered into an agreement as far back as in the year 1989 to purchase the property from Sri Poojappa and the sale deed has been subsequently executed. First and foremost, as already noticed above, neither Sri Poojappa nor his sons have stated with regard to such sale in the earlier proceedings. That apart, if in fact the site to which the plaintiff is claiming right is the same as the one measuring 76 ft X 40 ft in which the defendant is in possession and if on the other hand, the plaintiff was in possession of any extent of that property, the plaintiff herein would have had knowledge of the earlier proceedings inasmuch as the Court Commissioner had visited the spot in the year 1999 and it would have been open for the plaintiff herein to state about his possession to the Court Commissioner. There is no such material to indicate the same. Further even though the defendants'' predecessor and thereafter the defendants herein were litigating with Sri Poojappa and his sons from the year 1989, the plaintiff herein was no where in the picture though he claims to have entered into an agreement and come in possession in the year 1989. On the other hand immediately after Sri Poojappa and his sons have failed in the earlier round of litigation, the plaintiff has filed the instant suit on 28.08.2000 which gives credence to the contention of the defendants herein that the present suit has been instituted by the plaintiff at the instigation of Sri Poojappa and sons when it also stated that the plaintiff is Sri Poojappa''s nephew. Hence, in a circumstance, where the defendants claim right to the property under a sale deed of the year 1983 and there are sufficient documents available to indicate their possession of the site bearing No. 79 new No. 28 and when much water has flown and the defendants have succeeded in the earlier litigations with the alleged vendors of the plaintiff herein, the Court below was justified in its conclusion. Point No. (iii) is held in the negative.
For all the above said reasons, I find no merit in this appeal. The appeal is accordingly dismissed. In the facts and circumstances of the case, the parties to bear their own costs.
