Bangalore District Court
Kiran V vs Muniswamappa on 16 January, 2025
KABC010172732004
IN THE COURT OF THE XX ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-32), BANGALORE CITY
Dated this the 16th January 2025
Present:
Sri.Sirajuddeen A., B.A., LL.B.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.7535/2004
Plaintiffs Sri.V.Kiran
S/o Sri. R.Venugopala Reddy,
Aged about 27 years,
R/at No.500/19, 7th Cross,
Mahalakshmi Layout,
Bengaluru-560086.
(By Sri.V.B.S., Advocate)
v/s.
Defendants 1.Sri.Muniswamappa,
Since dead by LRs
a) Smt.Thippamma,
W/o late Muniswamappa,
aged about 68 years,
b) Sri.M. Nagaraj,
S/o late Muniswamappa,
Aged about 38 years,
c) Sri.Lakshminarayana,
S/o late Muniswamappa,
2 O.S.No.7535/2004
Aged about 36 years,
d) Sri.Nanje Gowda,
S/o late Muniswamappa,
Aged about 32 years.
All are residing at Nagarabhavi
II Stage, Nisarga Garden,
11th Block, (Papireddy Palya),
Bengaluru-560072.
e) Smt.Nanjamma,
W/o Muniyappa,
D/o late Muniswamappa,
Aged about 40 years,
R/at Narasapura,
Atthibele Hobli,
Bengaluru.
f) Smt. Chinnamma,
W/o Gajendra,
D/o late Muniswamappa,
Aged about 34 years,
R/at : Edaluru Dinne,
III Stage, Rajajinagar,
Bengaluru.
g)Sri. Chandu,
W/o Sathyanarayana,
D/o late Muniswamappa,
Aged about 30 years,
R/at 6th Cross, 5th Gathaka,
BMTC Garej Backside,
Subbanna Garden,
Bengaluru.
2.Sri.Byrappa,
Since deceased by LRs.
2(a)Smt. Gowramma,
W/o late Byrappa,
Age not known to plaintiff.
3 O.S.No.7535/2004
2(b)Sri.Vijayakumar,
S/o late Byrappa,
Major by age.
2(c)Sri. Lokesh P.B,
S/o late Byrappa,
Major by age,
2(d)Sri.Kantharaju .P.B,
S/o late Byrappa,
Major by age,
3.Sri.Chowdappa,
Aged about 57 years,
Since deceased by LRs.
3(a)Smt.Rathnamma,
D/o late Chowdappa,
Aged about 56 years,
3(b)Sri. Lakshmikantha,
S/o late Chowdappa,
Aged about 45 years,
3(c)Smt.Nethravathi,
D/o late Chowdappa,
Aged about 42 years,
3(d)Sri.Chidananda,
S/o late Chowdappa,
Aged about 39 years,
Defendants 3(a) to 3(d) are
residing at Deepa Complex,
Papireddy Palya,
Nagarabhavi II Stage,
11th Block, Nisarga Layout,
Bengaluru-560072.
4)Sri. Muthuraya Reddy,
Aged about 48 years,
4 O.S.No.7535/2004
All sons of late Nanjappa,
Residing at Deepa Complex,
Papireddy Palya,
Yeshwanthapur Hobli,
Nagarabhavi II Stage,
Bengaluru-560072.
(D1(a) to D1(g), D2 & D3 by
Sri.S.N, Advocate,
D2 by Sri.S.V.V, Advocate)
Date of institution
of the suit: : 06/10/2004
Nature of suit : Injunction Suit
Date of commencement
of recording of evidence : 14/03/2014
Date on which the
judgment was pronounced : 16/01/2025
Duration : year/s Month/s day/s
20 03 10
(Sirajuddeen A.),
XX Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
Plaintiff instituted this suit against defendants for
declaration and injunction.
2. The brief facts of the case of the plaintiff is that the
property bearing Sy.No.19 of Mallathahalli village,
5 O.S.No.7535/2004
Yeshwanthapura Hobli, Bengaluru North Taluk constituted the
property of one Sri.Nanjappa-1. The said Nanjappa-1 had two
sons namely Byrappa-1 and Papaiah. Byrappa-1 had only one
son by name Sri.Nanjappa-2. Papaiah had a son by name
Byrappa-2. Nanjappa-2 and Byrappa-2 are cousins and were
the grandsons of Nanjappa-1, who were the owners of suit
schedule property. The family properties that belonged to
Nanjappa-1 were partitioned by Nanjappa-2 and Byrappa-2.
Nanjappa-2 mortgaged properties including Sy.No.19 fell to his
half share to one Muniyamma under a registered mortgage
deed dated 20/9/1934. Himself and Byrappa-2 are brothers
and Byrappa-2 is his younger brother. Himself and Byrappa-2
partitioned the family properties and under the said partition
one half share in the family properties including Sy.No.19 was
allotted to his share and he is mortgaging the properties that
were allotted to his share under the partition to
Smt.Muniyamma under the mortgage deed. In the said
mortgage deed he has clearly stated that the total extent of
land bearing Sy.No.19 was 6 acres 4 guntas and one half of the
same was allotted to him under the oral partition and that the
said share that was allotted to him under the partition is
mortgaged by him to Smt.Muniyamma. Subsequently in the
6 O.S.No.7535/2004
year 1966, Nanjappa-2 redeemed the mortgage effect by him in
favour of Smt.Muniyamma and in that connection
Smt.Muniyamma executed a registered Deed of Redemption
dated 19/3/1966 redeeming the mortgage created by
Nanjappa-2. In the said redemption deed clearly stated that
the grandfather of the defendants was allotted only half share
in the land bearing Sy.No.19 along with other lands. The other
half of land bearing Sy.No.19 was allotted along with half share
in other lands to Byrappa-2. Byrappa-2 executed a registered
agreement dated 28/10/1946 in favour of another
Smt.Muniyamma W/o Seegehalli Ramaiah, where under he
acknowledged his liability to maintain Smt.Muniyamma from
out of the income from land bearing Sy.No.19 as well as other
lands that were allotted to his share under the partition
between himself and Nanjappa-2 and the said agreement was
attested by Nanjappa-2. Subsequently a registered sale deed
dated 8/8/1948 Byrappa-2 said all the lands allotted to his
share including land bearing Sy.No.19 to his daughter
Smt.Nanjamma. By virtue of the said sale deed
Smt.Nanjamma became the absolute owner of one half of
Sy.No.19 which has been clearly demarketed from other half
share that were allotted to Byrappa-II under an oral partition
7 O.S.No.7535/2004
between himself and Nanjappa-2 and later Nanjamma executed
a Will dated 12/1/1980 in favour of her son Krishnamurthy,
who is the vendor of the plaintiff. The said Krishnamurthy
formed revenue layout and revenue sites and sold to various
persons. Those sale deeds of sites formed in Sy.No.19 were not
questioned by any of the defendants and they have constructed
buildings and residing there. The plaintiff is the purchaser of
two revenue sites bearing No.1 and 2 each measuring 150 sq.ft
x 50 sq.ft under two sale deeds dated 21/5/1999 and
11/6/1999. The RTC and index of land discloses the name of
Nanjappa and Nallappa. The said Nallappa who is the
husband of Nanjamma and father of vendor of the plaintiff.
Smt.Nanjamma was in enjoyment and possession of the said
land as absolute owner and her name was also reflected as the
owner and khatedar in all the revenue records like Index of
land and record of rights. Smt.Nanjamma died on 30/7/1984
and her son Krishnamurthy inherited all the properties
including Sy.No.19 by virtue of the Will dated 12/1/1980
executed by his mother Smt.Nanjamma. The land bearing
Sy.No.19 measuring 3 acres 2 guntas being one half of the total
extent of 6 acres 4 guntas was inherited by Krishnamurthy and
he was in possession and enjoyment of the same. The said
8 O.S.No.7535/2004
land ultimately come within the Gramathana limits of
Mallathalli and he formed a layout of residential sites in the
said land and sold the sites formed by him as aforesaid to
various persons. Similarly the defendants herein who inherited
the other half of land in land bearing Sy.No.19 from their
grandfather formed a layout of sites in their portion and sold
the same to various persons. The sites purchased by plaintiff is
within the jurisdiction of Pattanagere CMC and all the records
from panchayath have been transferred to CMC and although
the plaintiff applied for extract of assessment register and for
katha endorsement, but he was not able to get the same, since
the panchayath records were not traceable in the CMC office.
The CMC has now stopped giving katha to the property and
plaintiff is informed that the katha will be given subsequently.
He has applied for the same and will produce the same as and
when he obtains. The defendants who have absolutely no
manner of right, title or interest in respect of the schedule
property are attempting to interfere with the plaintiff’s
possession and enjoyment of the schedule property and hence
prayed to decree the suit.
3. Upon issuance of suit summons to the defendants
appeared through their counsel and they have filed their
9 O.S.No.7535/2004
written statement by denying the contentions putforth in the
plaint and further contended that Nanjappa had only one son
called Byrappa. This Byrappa had only one son called
Nanjappa. This Nanjappa had 4 sons namely the defendants
herein. In fact, the wife of Nanjappa i.e. the mother of the
defendants i.e. Smt.Subbamma is still alive which fact has
been established as per the genealogical tree produced as
document No.3 and since she has not been made party to this
suit the suit is liable to be dismissed for non-joinder of
necessary parties. The Sy.No.19 was owned and possessed by
Nanjappa the great grandfatehr of these defendants from the
very beginning. All the revenue records such as preliminary
record, record of rights and patta categorically stated that
Sy.No.19 was the property of Nanjappa. The entries in the
preliminary records of the year 1928 shows Nanjappa, the
father of the defendants 1 to 4 as the Khatedhar of Sy.No.19
and the said property is shown as ancestral property. The
copy of the receipt patta showing the lands held by Nanjappa
right from the year 10936-37. At no point of time do the
revenue records even remotely indicate that there was a person
called Papaiah, who was the son of Nanjappa and who had any
share in Sy.No.19. The revenue records clearly indicated that
10 O.S.No.7535/2004
upon the year 1966 it was the name of Nanjappa the father of
these defendants who was the absolute owner of the entire
extent of 6 acres 4 guntas. As a matter of fact Nanjappa, the
father of these defendants had mortgaged the entire extent of 6
acres 4 guntas. The mortgage itself proves that the entire
extent of Sy.No.19 was owned and possessed by Nanjappa, the
father of defendants herein. This ownership was also
acknowledged by an independent entity i.e. the cooperative
society, which after verifying the title deeds and only after
being totally satisfied that the entire extent of Sy.No.19
belonged to the father of the defendants herein. At no point of
time was there any entry in any revenue records during the
period 1927 upto 1987, though the allegations are made in the
plaint about the plaintiff’s vendor’s mother having acquired
certain rights in Sy.No.19 in 1948. In short even at an
undisputed point of time all the revenue records clearly
indicate that the father of the defendants herein who was the
absolute owner of the entire extent of Sy.No.19. It is pertinent
to note that the father of the defendants has repaid the entire
mortgage amount and the society has also given an
endorsement to the effect that the mortgage amount has been
paid. The encumbrance certificate in respect of Sy.No.19
11 O.S.No.7535/2004
issued by the authorities do not reflect any transaction that is
alleged by the plaintiff in the plaint. The documents indicates
that apart from the mortgage created by the father of the
defendants herein no other transaction of any sort has been
entered into in respect of Sy.No.19 measuring 6 acres 4
guntas. In the light of the fact that the encumbrance
certificate does not even indicate any transaction, which is
alleged in the plaint, the entire say of the plaintiff regarding
acquisition of title by his father will have to be rejected in
totality. For the first time on the basis of the alleged Will said
to have been executed in favour of Krishnamurthy, the entries
were sought to be changed. As a matter of fact, the order
under which the revenue entries were sought to be transferred
in favour of Krishnamurthy does not even exist. In other words
the order under which Krishnamurthy’s name was sought to be
entered does not exist in the revenue records and thus the
only inference can be drawn as there is no entries at all in the
name of the plaintiff’s vendor and consequently, it will have to
be held that the plaintiff’s vendor has no title over any portion
of Sy.No.19. As a matter of fact the Assistant Commissioner as
well as Deputy Commissioner while exercising their statutory
powers of appeal and revision have given a conclusive finding
12 O.S.No.7535/2004
that the insertion of the plaintiff’s vendor’s name and his
mother’s name were wholly illegal and fraudulent and as a
matter of fact there was no order on the basis of which their
names were entered. Since there is absolutely no document,
which even remotely indicates that the plaintiff’s vendor had
any semblance of right over Sy.No.19, the plaintiff cannot claim
that they have acquired any right in respect of Sy.No.19. The
plaintiff has filed this suit at the behest of his vendor in order
to obtain a decree of injunction and thereby create a record in
his favour and the plaintiff is not at all in possession, therefore
this suit for injunction cannot be sustained. The defendants
have in fact obtained conversion of about 3 acres of land and
the defendants also constructed 3 buildings apart form a
factory and these buildings and factory shed have been
provided with electricity connection for the past several
decades and these facts proves that the defendants are in
peaceful possession and enjoyment of the entire extent of
Sy.No.19. The defendants herein have partitioned the entire
extent of Sy.No.19 between themselves under a Palupatti in the
year 1980 and this Palupatti has been superseded by a
registered partition deed in the year 1995 and on the basis of
the said partition the records have also been changed. The
13 O.S.No.7535/2004
plaintiff has absolutely no document indicating his possession
and the fact that the name of the defendants are reflected in all
the revenue records and the municipal records, by itself proves
that it is these defendants who are in peaceful possession of
the property in question and the plaintiff is not at all in
possession of the said property. Hence prayed to dismiss the
suit with exemplary costs.
4. In view of rival pleadings of both parties, my
predecessor in office has framed following issues:
ISSUES
1. Whether the plaintiff proves that on the
date of filing of suit, he was in lawful or settled
possession and enjoyment of suit property?
2. Whether the plaintiff proves that
defendants are illegally interfering into his
peaceful possession and enjoyment over the suit
property?
3. Whether the plaintiff is entitled to the relief
sought for?
4. What decree or order?
ADDITIONAL ISSUES :
1. Whether plaintiff proves that he is an
absolute owner of suit property?
14 O.S.No.7535/2004
2. Whether plaintiff proves that the
defendants have illegally dispossessed the plaintiff
from suit property?
3. Whether plaintiff is entitled of the
possession of suit property?
4. Whether court fee paid is proper?
5. Whether plaintiff is entitled for mesne
profits?
6. Whether the suit is barred by limitation?
5. In order to prove the contention of the plaintiff,
plaintiff is examined as PW1 and 12 other witnesses as PW2 to
PW13 and got marked documents as per Ex.P.1 to Ex.P.89 and
closed his side evidence. For defendants, defendant No.4 is
examined as DW.1 and one more witness as DW2 and got
marked 44 documents as per Ex.D.1 to Ex.D.44 and closed
their side evidence.
6. Heard arguments. Perused records and written
arguments filed by counsels for the plaintiff and defendants.
7. In support of his argument, the counsel for plaintiff
has relied the following citations:
1. AIR 1983 SC 684 (State of Bihar and others vs.
Sri.Radha Krishna Singh and others.
15 O.S.No.7535/2004
2. AIRonline 2023 SC 767 (Appaiya vs. Andimuthu @
Thangapandi.
3. FAO (OS) 81/2023 and CM APPLs 35932/2023,
35933/2023, CM APPL.35934/2023, CM APPL
38987/2023 Delhi High Court. (Sahil Marwah
and another vs. K.C.Alexander and others)
4. AIR 1968 SC 1165 (Nair Service Society Limited vs.
K.C.Alexander and others).
5. AIR 1991 SC 1600 (Ajudh Raj and others vs. Moti,
Son of Mussadi.
6. AIR 2008 (NOC) 149 (KAR) (N.Muniswamy vs.
M.Lalitha)
7. AIR 2004 SC 4261 (Ramaiah Vs. N.Narayana
Reddy (dead) by LRs)
8. AIR 2008 SC 346 (Annakili Vs. A.Vedanayagam
and others)
9. AIR 2009 SC 103 (Hemaji Waghaji Jkat vs.
Bhikhabhai Khengarbhai Harijan and others)
10. AIRONLINE 2005 SC 156 (Raghabendra Bose vs.
Sunil Kirshna Ghose)
11. Civil Appeal No…/2024 (arising out of SLP ©
No.25213/2024 – Supreme Court (The State of
Haryana and another vs. Amin Lal (Since dead)
through his LRs).
12. (2006) 7 Supreme Court Cases 570 (T.Anjanappa
and others vs. Somalingappa and another).
13. AIR 1976 SC 1485 (Vishwa Vijay Bharati vs.
Fakhrul Hassan and others).
14. AIR 2008 SC 2033 (Anathula Sudhakar vs.
P.Buchi Reddy (dead) by LRs).
16 O.S.No.7535/2004
15. AIR 1972 SC 2685 (Ram Saran and another vs.
Smt.Ganga Devi).
16. AIR 2007 Karnataka 91 (Aralappa and etc vs.
Jagannath and others)
17. AIR 2006 SC 3608 (Prem Singh and others vs.
Birbal and others)
18. AIR 1986 SC 1099 (M/s. Sodhi Transport
Company and another etc. vs. State of U.P and
another etc. etc.)
19. AIR 1961 SC 808 (C.Mohammed Yunus vs.
Syed Unnissa).
20. AIR 2003 SC 4548 (R.V.E Venkatachala Gounder
vs. Arulmigu Viswesaraswami and V.P/Temple
and another).
21. 2020 (5) KLJ 235 (Jayamma Venkataram vs.
Ashrab Joahan Begum.
22. AIR 2003 SC 4548 (RVE Venkatachala Gounder vs.
Arulmigu Viswesaraswami and V.P.Temple and
another.
23. AIR 1961 SC 808 (Mohammed Yunus vs. Syed
Unnisha)
24. AIR 1976 SC 1485 (Vishwa Vijay Bharathi vs.
Fakhrul Hassan.
25. AIR 2008 Sc 2033 (Anathula Sudhakar vs.
P.Buchhi Reddy.
26. AIR 1972 Sc 2685
27. AIR 2007 KAR 91.
8. In support of his argument, the counsel for defendants
has relied the following citations:
17 O.S.No.7535/2004
1. ILR 2009 KAR 887 (Veeragouda and others vs.
Shantakumar @ Shantappagowda.
9. My answer to the above issues and additional issues
are :
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Addl.Issue No.1 : In the negative.
Addl.Issue No.2 : In the negative.
Addl.Issue No.3 : In the negative.
Addl.Issue No.4 : In the negative.
Addl.Issue No.5 : Does not survive for consideration.
Addl.Issue No.6 : Already answered by this court as
per the order dated 05.10.2013.
Issue No.4 : As per final order for the following:
REASONS
10. ISSUES No.1 & 2 & ADDL.ISSUES 1 & 2 : Since all
these issues are interlinked with each other, to avoid
repetition, I have taken together for common discussion.
11. In order to prove his contention, the plaintiff is
examined as PW1 and got marked Ex.P.1 to Ex.P.89
documents. Ex.P.1 is the certified copy of GPA executed by
V.Kiran, Ex.P.2 is the certified copy of registered mortgage deed
dated 20/9/1934, Ex.P.3 is the certified copy of registered deed
of redemption dated 19/3/1966, Ex.P.4 is the certified copy of
registered agreement dated 28/10/1946, Ex.P.5 is the certified
copy of registered sale deed dated 8/8/1948, Ex.P.6 is the
18 O.S.No.7535/2004
certified copy of mutation register No.1/48-9, Ex.P.7 is the
certified copy of Index of land, Ex.P.8 is the certified copy of
record of rights, Ex.P.9 is the certified copy of Patta book,
Ex.P.10 is the certified copy of Will dated 12/1/1980, Ex.P.11
is the certified copy of mutation register No.11/87-88, Ex.P.12
to Ex.P.18 are the 7 certified copies of RTCs pertaining to suit
schedule property, Ex.P.19 & Ex.P.20 are the Encumbrance
Certificates, Ex.P.21 and Ex.P.22 are the certified copy of sale
deeds, Ex.P.23 is the police complaint, Ex.P.24 & Ex.P.25 are
the endorsements issued by police, Ex.P.26 & Ex.P.27 are the
certified copy of Encumbrance Certificates of suit schedule
property, Ex.P.28 to Ex.P.39 are the certified copies of tax paid
receipts, Ex.P.40 & Ex.P.41 are the two Form No.3, Ex.P.42 is
the certified copy of genealogical tree, Ex.P.44 is the copy of
complaint given to police, Ex.P.45 is the endorsement issued by
police, Ex.P.46 is the medical certificate, Ex.P.47 to Ex.P.50 are
the 4 tax paid receipts, Ex.P.51 is the certified copy of orders in
W.P.No.40027/2002, Ex.P.52 is the certified copy of orders in
W.A.No.1479/2006, Ex.P.53 is the certified copy of orders
passed in C.A.No.9542/2010, Ex.P.54 and Ex.P.55 are the
certified copy of judgment and decree passed in OS
No.4600/2005, Ex.P.56 to Ex.P.64 & Ex.P.56(a) to Ex.P.64(a)
19 O.S.No.7535/2004
are the 8 photographs with negatives. Ex.P.65 to Ex.P.71 are
the certified copies of sale deeds dated 21/3/1990, 9/8/1991,
17/3/1994, 10/10/1994, 20/11/1998, 5/7/2004 and
10/8/2001, Ex.P.72 is the tax paid receipt, Ex.P.73 is the
electricity bill, Ex.P.74 is the certified copy of sale deed dated
10/10/1994, Ex.P.75 is the tax paid receipt, Ex.P.76 and
Ex.P.77 are the electricity bill and receipt, Ex.P.78 is the
certified copy of partition deed dated 21/6/2008, Ex.P.79 is the
certified copy of sale deed dated 16/10/2006, Ex.P.80 is the
certified copy of sale deed dated 9/3/1994, Ex.P.81 is the
registered GPA executed by N.Krishnamurthy and his son
Surendra in favour of DW11, Ex.P.82 is the tax paid receipt,
Ex.P.83 is the certified copy of sale deed dated 20/11/1998,
Ex.P.84 is the original sale deed dated 10/10/1994. Ex.P.85 is
the certified copy of sale deed dated 12/9/1994, Ex.P.86 is the
certified copy of sale deed dated 4/12/2000, Ex.P.87 and
Ex.P.88 are the certified copy of judgment and decree in OS
No.2047/2012 and Ex.P.89 is the survey sketch.
12. In order to disprove the contention of the plaintiff,
the defendant No.4 is examined as DW.1 and one more witness
as DW2 and got marked 44 documents as Ex.D.1 to Ex.D.44.
Ex.D.1 to Ex.D.25 are 25 RTCs, Ex.D.26 is the certified copy of
20 O.S.No.7535/2004
preliminary record, Ex.D.27 is the encumbrance certificate,
Ex.D.28 is the certified copy of index of land, Ex.D.29 is the
certified copy of mortgage deed, Ex.D.30 to Ex.D.35 are the 5
certified copy of conversion orders, Ex.D.36 is the certified copy
of order dated 15/1/2002, Ex.D.37 certified copy of order
dated 11/10/2002, Ex.D.38 is the certified copy of order dated
31/7/2006, Ex.D.39 is the certified copy of order dated
10/7/2006, Ex.D.40 is the certified copy of order dated
16/3/2009, Ex.D.41 is the certified copy of order dated
4/7/2011, Ex.D.42 is the certified copy of valuation report,
Ex.D.43 and Ex.D.44 are the certified copy of sale deeds.
13. The plaintiff who is examined as PW1 and has
reiterated the plaint averments in his affidavit evidence filed in
lieu of examination in chief. He has stated that the property
bearing Sy.No.19 of Mallathahalli village, Yeshwanthapura
Hobli, Bengaluru North Taluk constituted the property of one
Sri.Nanjappa-1. The said Nanjappa-1 had two sons namely
Byrappa-1. Byrappa-1 had only one son by name
Sri.Nanjappa-2. Papaiah had a son by name Byrappa-2.
Nanjappa-2 and Byrappa-2 are cousins and were the
grandsons of Nanjappa-1, who were the owners of suit
schedule property. The family properties that belonged to
21 O.S.No.7535/2004
Nanjappa-1 were partitioned by Nanjappa-2 and Byrappa-2.
Nanjappa-2 mortgaged properties including Sy.No.19 fell to his
half share to one Muniyamma under a registered mortgage
deed dated 20/9/1934. Himself and Byrappa-2 are brothers
and Byrappa-2 is his younger brother. Himself and Byrappa-2
partitioned the family properties and under the said partition
one half share in the family properties including Sy.No.19 was
allotted to his share and he is mortgaging the properties that
were allotted to his share under the partition to
Smt.Muniyamma under the mortgage deed. In the said
mortgage deed he has clearly stated that the total extent of
land bearing Sy.No.19 was 6 acres 4 guntas and one half of the
same was allotted to him under the oral partition and that the
said share that was allotted to him under the partition is
bearing mortgaged by him to Smt.Muniyamma. Subsequently
in the year 1966, Nanjappa-2 redeemed the mortgage effected
by him in favour of Smt.Muniyamma and in that connection
Smt.Muniyamma executed a registered Deed of Redemption
dated 19/3/1966 redeeming the mortgage created by
Nanjappa-2. In the said redemption deed clearly stated that
the grandfather of the defendants was allotted only half share
in the land bearing Sy.No.19 along with other lands. The other
22 O.S.No.7535/2004
half of land bearing Sy.No.19 was allotted along with half share
in other lands to Byrappa-2. Byrappa-2 executed a registered
agreement dated 28/10/1946 in favour of another
Smt.Muniyamma W/o Seegehalli Ramaiah, where under he
acknowledged his liability to maintain Smt.Muniyamma from
out of the income from land bearing Sy.No.19 as well as other
lands that were allotted to his share under the partition
between himself and Nanjappa-2 and the said agreement was
attested by Nanjappa-2. Subsequently a registered sale deed
dated 8/8/1948 Byrappa-2 said all the lands allotted to his
share including land bearing Sy.No.19 to his daughter
Smt.Nanjamma. By virtue of the said sale deed
Smt.Nanjamma became the absolute owner of one half of
Sy.No.19 which has been clearly demarketed from other half
share that were allotted to Byrappa-II under an oral partition
between himself and Nanjappa-2 and later Nanjamma executed
a Will dated 12/1/1980 in favour of her son Krishnamurthy,
who is the vendor of the plaintiff. The said Krishnamurthy
formed revenue layout and revenue sites and sold to various
persons. Those sale deeds of sites formed in Sy.No.19 were not
questioned by any of the defendants and they have constructed
buildings and residing there. The plaintiff is the purchaser of
23 O.S.No.7535/2004
two revenue sites bearing No.1 and 2 each measuring 150 sq.ft
x 50 sq.ft under two sale deeds dated 21/5/1999 and
11/6/1999. The RTC and index of land discloses the name of
Nanjappa and Nallappa. The said Nallappa who is the
husband of Nanjamma and father of vendor of the plaintiff.
Smt.Nanjamma was in enjoyment and possession of the said
land as absolute owner and her name was also reflected as the
owner and khatedar in all the revenue records like Index of
land and record of rights. Smt.Nanjamma died on 30/7/1984
and her son Krishnamurthy inherited all the properties
including Sy.No.19 by virtue of the Will dated 12/1/1980
executed by his mother Smt.Nanjamma. The land bearing
Sy.No.19 measuring 3 acres 2 guntas being one half of the total
extent of 6 acres 4 guntas was inherited by Krishnamurthy and
he was in possession and enjoyment of the same. The said
land ultimately come within the Gramathana limits of
Mallathalli and he formed a layout of residential sites in the
said land and sold the sites formed by him as aforesaid to
various persons. Similarly the defendants herein who inherited
the other half of land in land bearing Sy.No.19 from their
grandfather formed a layout of sites in their portion and sold
the same to various persons. The sites purchased by plaintiff is
24 O.S.No.7535/2004
within the jurisdiction of Pattanagere CMC and all the records
from panchayath have been transferred to CMC and although
the plaintiff applied for extract of assessment register and for
katha endorsement, but he was not able to get the same, since
the panchayath records were not traceable in the CMC office.
The CMC has now stopped giving katha to the property and
plaintiff is informed that the katha will be given subsequently.
He has applied for the same and will produce the same as and
when he obtains. The defendants who have absolutely no
manner of right, title or interest in respect of the schedule
property are attempting to interfere with the plaintiff’s
possession and enjoyment of the schedule property.
14. In order to disprove the contention of the plaintiff,
the defendant no.4 examined as DW1 and stated that
Nanjappa had only one son called Byrappa. This Byrappa had
only one son called Nanjappa. This Nanjappa had 4 sons
namely the defendants herein. In fact, the wife of Nanjappa i.e.
the mother of the defendants i.e. Smt.Subbamma is still alive
which fact has been established as per the genealogical tree
produced as document No.3 and since she has not been made
party to this suit the suit is liable to be dismissed for non-
25 O.S.No.7535/2004
joinder or necessary parties. The Sy.No.19 was owned and
possessed by Nanjappa the great grandfather of these
defendants from the very beginning. All the revenue records
such as preliminary record, record of rights and patta
categorically stated that Sy.No.19 was the property of
Nanjappa. The entries in the preliminary records of the year
1928 shows Nanjappa, the father of the defendants 1 ot 4 as
the Khatedhar of Sy.No.19 and the said property is shown as
ancestral property. The copy of the receipt patta showing the
lands held by Nanjappa right from the year 1936-37. At no
point of time do the revenue records even remotely indicate
that there was a person called Papaiah, who was the son of
Nanjappa and who had any share in Sy.No.19. The revenue
records clearly indicated that upon the year 1966 it was in the
name of Nanjappa the father of these defendants who was the
absolute owner of the entire extent of 6 acres 4 guntas. As a
matter of fact Nanjappa, the father of these defendants had
mortgaged the entire extent of 6 acres 4 guntas. The mortgage
itself proves that the entire extent of Sy.No.19 was owned and
possessed by Nanjappa, the father of defendants herein. This
ownership was also acknowledged by an independent entity i.e.
the cooperative society, which after verifying the title deeds and
26 O.S.No.7535/2004
only after being totally satisfied that the entire extent of
Sy.No.19 belonged to the father of the defendants herein. At no
point of time was there any entry in any revenue records
during the period 1927 upto 1987, though the allegations are
made in the plaint about the plaintiff’s vendor’s mother having
acquired certain rights in Sy.No.19 in 1948. In short even at
an undisputed point of time all the revenue records clearly
indicate that the father of the defendants herein who was the
absolute owner of the entire extent of Sy.No.19. It is pertinent
to note that the father of the defendants has repaid the entire
mortgage amount and the society has also given an
endorsement to the effect that the mortgage amount has been
paid. The encumbrance certificate in respect of Sy.No.19
issued by the authorities do not reflect any transaction that is
alleged by the plaintiff in the plaint. The documents indicates
that apart from the mortgage created by the father of the
defendants herein no other transaction fo any sort has been
entered into in respect of Sy.No.19 measuring 6 acres 4 guntas.
In the light of the fact that the encumbrance certificate does
not even indicate any transaction, which is alleged in the
plaint, the entire say of the plaintiff regarding acquisition of
title by his father will have to be rejected in totality. For the
27 O.S.No.7535/2004
first time on the basis of the alleged Will said to have been
executed in favour of Krishnamurthy, the entries were sought
to be changed. As a matter of fact, the order under which the
revenue entries were sought to be transferred in favour of
Krishnamurthy does not even exist. In other words the order
under which Krishnamurthy’s name was sought to be entered
does not exist in the revenue records and thus the only
inference can be drawn as there is no entries at all in the name
of the plaintiff’s vendor and consequently, it will have to be
held that the plaintiff’s vendor has no title over any portion of
Sy.No.19. As a matter of fact the Assistant Commissioner as
well as Deputy Commissioner while exercising their statutory
powers of appeal and revision have given a conclusive finding
that the insertion of the plaintiff’s vendor’s name and his
mother’s name were wholly illegal and fraudulent and as a
matter of fact there was no order on the basis of which their
names were entered. Since there is absolutely no document,
which even remotely indicates that the plaintiff’s vendor had
any semblance of right over Sy.No.19, the plaintiff cannot claim
that they have acquired any right in respect of Sy.No.19. The
plaintiff has filed this suit at the behest of his vendor in order
to obtain a decree of injunction and thereby create a record in
28 O.S.No.7535/2004
his favour and the plaintiff is not at all in possession, was
never in possession and therefore this suit for injunction
cannot be sustained. The defendants have in fact obtained
conversion of about 3 acres of land and the defendants also
constructed 3 buildings apart form a factory and these
buildings and factory shed have been provided with electricity
connection for the past several decades and these facts proves
that the defendants are in peaceful possession and enjoyment
of the entire extent of Sy.No.19. The defendants herein have
partitioned the entire extent of Sy.No.19 between themselves
under a Palupatti in the year 1980 and this Palupatti has been
superseded by a registered partition deed in the year 1995 and
on the basis of the said partition the records have also been
changed. The plaintiff has absolutely no document indicating
his possession and the fact that the name of the defendants are
reflected in all the revenue records and the municipal records,
by itself proves that it is these defendants who are in peaceful
possession of the property in question and the plaintiff is not at
all in possession of the said property.
15. in support of contention of defendants the counsel
for defendant argued that the defendant have acquired the title
to the land bearing Sy.No.19 through partition and they are in
29 O.S.No.7535/2004
separate possession and enjoyment of their respective shares.
Neither plaintiff nor his vendor have got any manner of right,
title or interest in respect of the suit schedule property. In the
cross examination of DW1 at length,the plaintiff has failed to
elicit anything to establish his case. Further the PW1 has
admitted in the cross examination that at the time of
purchasing the suit schedule property no house list number
has been given to the said property and the Sy.No.19 has not
been converted for non agricultural purpose and no layout has
been formed in the land bearing Sy.No.19 and he has not seen
the original Will alleged to be executed by Nanjamma mother of
Krishna murthy who is the vendor of the plaintiff and plaintiff
admitted that he himself has given assessment number to the
property.
16. On perusal of the documents produced by the
plaintiff and defendants and on hearing the arguments of both
the sides the court has ascertained that plaintiff claiming title
and possession from his vendor Krishnamoorthy and he
claiming right from his mother Nanjamma claiming that she
executed a will dated 12/1/1980 EX P10 in favour of vendor of
plaintiff bequeathing all the properties purchased by her under
the said sale deed dated 8/8/1948 EX P5 and thereafter
30 O.S.No.7535/2004
vendor of plaintiff’s mother Nanjamma passed away on
30/7/1984 and thereafter revenue entries were made in the
name of vendor of plaintiff, the Krishna moorthy the vendor of
of plaintiff has examined as PW2 but he has not produced
the original will before the court and he has produced only
certified copy of the will and not explained about whereabouts
of the original will and failure to examine any of the attesting
witnesses to prove the will executed and based on the will
dated 12/1/1980 vendor of the plaintiff has obtained the katha
in his name from the Tahasildar vide order
No.M.R.IHC.11/1987-88 and the said order states that late
Nanjamma is having 3 children viz. Krishnamurthy,
P.N.Srinivas and N.Prabhakar and that brothers of vendor of
plaintiff by name P.N.Srinivas and N.Prabhakar have given
their statement to change the katha of the schedule properties
on inheritance in the name of vendor of plaintiff i.e
Krishnamurthy. This shows that he has obtained katha on
inheritance. The vendor of plaintiff has filed OS No.5331/2011
the suit seeking the relief of declaration based on the alleged
Will dated 12.01.1980 said to have been executed by his
mother Smt. Nanjamma bequeathing the properties specified in
the said document in the family of the vendor of plaintiff. When
31 O.S.No.7535/2004
the vendor of plaintiff has sought for the declaration of his title
to the property based on the alleged Will, the burden of proof is
on the vendor of the plaintiff to produce the original will before
the court for examination. It is the bounden duty of the person
who is claiming the title based on the alleged Will, being a
propounder of the Will has to produce the original Will before
the court for examination. The vendor of the plaintiff has not
produced the original Will before the court either in the suit
filed by him or in this case and has not explained whereabouts
of the Will.and not examined any of the attesting witnesses to
prove the will.
17. As per section 68 of Indian Evidence Act will has to
be proved by examining any one of attesting witness.
18. The contention of the plaintiff is that his vendor
acquired the property based on the will dated 12/1/1980
vendor of plaintiff has obtained the katha in his name from the
Tahasildar. But EX P11 M.R.IHC.11/1987-88 and the said
order states that late Nanjamma is having 3 children viz.
Krishnamurthy, P.N.Srinivas and N.Prabhakar and that
brothers P.N.Srinivas and N.Prabhakar have given their
statement to change the katha of the schedule properties it
was changed on the basis of inheritance in the name of
32 O.S.No.7535/2004
Krishnamurthy. This shows he has obtained katha on
inheritance. There is no mention about will.
19. When the will has been not proved by the vendor of
the plaintiff, the execution of the will in favour of the vendor of
the plaintiff and on the basis of the will katha has been
changed in his name and formed layout and sold the sites to
plaintiff and various other persons and interference of the
defendants in respect of the suit schedule property will not
arise. No one can transfer a better title than what he himself
possess. Therefore, in view of the above discussion, I am of the
opinion that the vendor of the plaintiff has failed to prove the
will executed accordingly his title over property. Since the title
of vendor of plaintiff is not proved the question of formation of
layout and selling of sites to various persons and interference
of the defendants in respect of the suit schedule properties
does not arise. Regarding mesne profits the plaintiff has not
proved that the plaintiff is the owner of the suit schedule
property. Accordingly, the plaintiff failed to prove that on the
date of filing of suit, he was in lawful or settled possession and
enjoyment of suit property and he is the absolute owner of the
suit schedule property and defendants are interfering their
possession over the suit schedule property. The citations
33 O.S.No.7535/2004
relied by the counsel for the plaintiff is not applicable to the
facts and circumstances of this case. Hence, this court’s
answer to issues No.1 and 2 and Addl.Issues No.1&2 in the
negative.
20. ADDL.ISSUE No.4 : This issue was considered as a
preliminary issue and answered negative as per order dated 05
.10.2013. Thereafter Plaintiff paid sufficient court fee as per the
direction of this court.
21. ADDL.ISSUE No.5: Since this court answer 1 and 2
and additional issue no 1 and 2 are in the negative, hence this
issue does not survive for consideration .
22. ADDL.ISSUE No.6 : The defendant No.4 has argued
that the plaintiff has filed this suit in the year 2004 against
defendants and the defendants appeared and filed written
statement on 7/1/2005 contending that he is absolute owner
of the suit schedule property and disputing title of plaintiff and
also at no point of time the plaintiff has been in possession and
enjoyment of the suit schedule property and accordingly the
suit filed by the plaintiff seeking the relief of bare injunction is
not sustainable in law. When the defendants have disputed the
34 O.S.No.7535/2004
title of the plaintiff in the year 2005 and also contending that
at no point of time the plaintiff has been in possession and
enjoyment of the suit schedule property the suit seeking the
relief of permanent injunction simplisitor without seeking the
relief of declaration and possession is not sustainable in law.
The plaintiff has admitted and produced the documents to
show that he has got the knowledge about the dispute of his
title to the property in the year 2004 itself. The amendment
sought for seeking the relief of declaration in the year 2012
though the title and possession of the plaintiff has been
disputed by the defendants in the year 2005, the relief sought
for seeking the relief of declaration and possession is barred by
the law of limitation.
23. It is clear from the records that Smt. Subbamma has
specifically contended that she and her family members being
the absolute owners of the suit schedule properties have been
in continuous possession and enjoyment of the suit schedule
properties and thereby disputed the title of the vendor of
plaintiff in the year 2001 itself. The vendor of plaintiff having
the knowledge about the dispute of the title in respect of the
suit schedule properties has kept quite till the year 2011 to
35 O.S.No.7535/2004
seek the relief of declaration. Hence, the suit filed by the
plaintiff seeking the relief of declaration after 10 years from the
date of disputing the title is barred by the law of limitation. It
is also clear from the proceedings initiated by the vendor of
plaintiff and the orders passed by the court particularly in the
contempt proceedings initiated by him before the Hon’ble High
Court, the same was dismissed holding that the defendants are
in possession of the suit schedule properties. Though the
vendor of plaintiff having knowledge about the said observation
has kept quite till the Year 2011 without any explanation. In
view of the above discussion, I am of the opinion that the suit
of the plaintiff is barred by law of limitation. Hence, I answer
issue No.6 is in the affirmative
24.ISSUE No.3: and additional issue no.3: Since this
court answer to issue1 and 2 and additional issue no 1 and 2
are in the negative, the plaintiff is not entitled to any relief.
Hence this court’s answer to Issue no.3 and additional issue
no.3 is in the affirmative
25. ISSUE No.4 : In view of above said observations, I
proceed to pass the following
36 O.S.No.7535/2004
ORDER
Suit of the plaintiff is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, computerized by
her, corrected and then pronounced by me in open court on the 16th
day of January 2025)
(Sirajuddeen A.)
XX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
ANNEXURE
List of witnesses examined for the Plaintiff:
PW.1 : R.Venugopal Reddy
PW.2 : V. Kiran
PW.3 : P.Vishwanath
PW.4 : B.Lakshmaiah
PW.5 : V.Kiran
PW.6 : Smt.Saraswathi
PW.7 : Harishchandra .B
PW.8 : Suresh Bijoor
PW.9 : K.V.Ramesh
PW10: M.S.Paniraj
PW.11:Smt.M.J.Bharathi
PW.12: H.M.Rajkumar
PW.13: Smt.HemalathaList of documents marked for the Plaintiff:
Ex.P.1 : Certified copy of GPA executed by V.Kiran.
Ex.P.2 : Certified copy of registered mortgage deed dated
20/9/1934.
Ex.P.3 : Certified copy of registered deed of redemption
dated 19/3/1966.
Ex.P.4 : Certified copy of registered agreement dated
28/10/1946.
37 O.S.No.7535/2004
Ex.P.5 : Certified copy of registered sale deed dated
8/8/1948.
Ex.P.6 : Certified copy of mutation register No.1/48-9.
Ex.P.7 : Certified copy of Index of land. Ex.P.8 : Certified copy of record of rights. Ex.P.9 : Certified copy of Patta book. Ex.P.10 : Certified copy of Will dated 12/1/1980. Ex.P.11 : Certified copy of mutation register No.11/87-88.
Ex.P.12to18: 7 certified copies of RTCs pertaining to suit
schedule property.
Ex.P.19&20: Encumbrance Certificates.
Ex.P.21&22: Certified copy of sale deeds.
Ex.P.23 : Police complaint.
Ex.P.24&25 : Endorsements issued by police.
Ex.P.26&27 : Certified copy of Encumbrance Certificates of suit
schedule property.
Ex.P.28to39 : Certified copies of tax paid receipts.
Ex.P.40&41 : Two Form No.3/
Ex.P.42 : Certified copy of genealogical tree.
Ex.P.44 : Copy of complaint given to police.
Ex.P.45 : Endorsement issued by police.
Ex.P.46 : Medical Certificate.
Ex.P.47to50 : 4 tax paid receipts.
38 O.S.No.7535/2004
Ex.P.51 : Certified copy of orders in W.P.No.40027/2002
Ex.P.52 : Certified copy of orders in W.A.No.1479/2006.
Ex.P.53 : Certified copy of orders passed in
C.A.No.9542/2010.
Ex.P.54&55 : Certified copy of judgment and decree passed in
OS No.4600/2005.
Ex.P.56to64
&56(a)to64(a): 8 photographs with negatives.
Ex.P.65to71 : Certified copies of sale deeds dated 21/3/1990,
9/8/1991, 17/3/1994, 10/10/1994, 20/11/1998,
5/7/2004 and 10/8/2001.
Ex.P.72 : Tax Paid Receipt. Ex.P.73 : Electricity Bill. Ex.P.74 : Certified copy of sale deed dated 10/10/1994 Ex.P.75 : Tax Paid Receipt.
Ex.P.76&77 : Electricity bill and Receipt.
Ex.P.78 : Certified copy of partition deed dated 21/6/2008.
Ex.P.79 : Certified copy of sale deed dated 16/10/2006.
Ex.P.80 : Certified copy of sale deed dated 9/3/1994.
Ex.P.81 : Registered GPA executed by N.Krishnamurthy
and his son Surendra in favour of DW11.
Ex.P.82 : Tax Paid Receipt.
Ex.P.83 : Certified copy of sale deed dated 20/11/1998.
Ex.P.84 : Original sale deed dated 10/10/1994.
39 O.S.No.7535/2004
Ex.P.85 : Certified copy of sale deed dated 12/9/1994.
Ex.P.86 : Certified copy of sale deed dated 4/12/2000.
Ex.P.87&88: Certified copy of judgment and decree in
OS No.2047/2012.
Ex.P.89 : Survey Sketch.
List of Witnesses examined for the defendants:
DW1 : Muthurayareddy
DW.2: RamaiahList of documents marked for the defendants:
Ex.D.1to25 : 25 RORs.
Ex.D.26 : Certified copy of preliminary record.
Ex.D.27 : Encumbrance Certificate. Ex.D.28 : Certified copy of index of land. Ex.D.29 : Certified copy of mortgage deed.
Ex.D.30to35: 5 certified copy of conversion orders.
Ex.D.36 : Certified copy of order dated 15/1/2002.
Ex.D.37 : Certified copy of order dated 11/10/2002.
Ex.D.38 : Certified copy of order dated 31/7/2006.
Ex.D.39 : Certified copy of order dated 10/7/2006.
Ex.D.40 : Certified copy of order dated 16/3/2009.
Ex.D.41 : Certified copy of order dated 4/7/2011.
Ex.D.42 : Certified copy of valuation report.
Ex.D.43&44 : Certified copy of sale deeds.
(Sirajuddeen A.)
XX ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
40 O.S.No.7535/2004
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