AI Structured Summary
Not yet generated for this judgment
Judgment
B.S. Patil, J.—This Regular First Appeal is directed against the judgment and decree dated 21.09.2005 passed by the XXVII Addl. City Civil Judge, Bangalore, in O.S. No. 5543/1996, thereby decreeing the suit filed by the plaintiff-1st respondent-herein by granting permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit schedule property. The suit schedule property is a site bearing No. 35 measuring 40'' x 30'' carved out of Sy. No. 85 of Bagalgunte village, Bangalore North Taluk. The 1st defendant-2nd respondent herein is said to be the owner of the property from whom the plaintiff-1st respondent has purchased it under an agreement of sale dated 18.02.1995. Plaintiff claims that she was put in possession of the property by way of part performance of the agreement by the 1st defendant by receiving consideration of Rs. 45,000/-. The 1st defendant also executed a General Power of Attorney dated 18.02.1995 in favour of the plaintiff. Thereafter, the plaintiff constructed a house in the suit property, where she was residing as on the date of the suit. On 28.07.1996, defendants/appellants 1 to 5 herein attempted to demolish the structure put up on the suit property, but the same was successfully prevented by the plaintiff However, when the jurisdictional police did not accept her complaint, she was constrained to file the suit for permanent injunction.
The 1st defendant/2nd respondent herein-owner of the property did not contest the case. She was placed ex-parte. Defendants 2 to 5 filed written statement contending that Sy. No. 85 belonged to Government as it was a Gomaal land. It was urged that the Special Deputy Commissioner by passing an order on 15.06.1995 had cancelled the mutation entries in favour of the 1st defendant exercising his powers u/s 136 of the Karnataka Land Revenue Act, 1964 and the revenue records of the land bearing Sy. No. 85 stood in the name of the Government. The alleged lawful possession of the plaintiff was denied. However, they pleaded that the plaintiff was in unlawful possession of the property and had constructed a building without obtaining, license from the competent authority.
On the basis of the pleadings, the Trial Court framed the following issues:
(i) Whether the plaintiff proves her lawful possession of the suit schedule property on the date of the suit?
(ii) Whether the plaintiff further proves the alleged interference of the defendants?
(iii) Whether the plaintiff is entitled to a decree of permanent injunction as sought for?
In support of her case, plaintiff examined her power of attorney holder as PW-1. Documents Exs. P1 to P7 were marked in evidence. The appellants herein who were defendants 1 to 5 did not lead any evidence.
The Trial Court, on appreciation of the evidence on record, both oral and documentary, has held that the plaintiff successfully proved that she was in possession of the property by virtue of the sale agreement-Ex. P1 executed by the 1st defendant in her favour, Ex. P2 -General Power of Attorney executed by the 1st defendant in favour of the plaintiff to deal with the suit site, Ex. P3 -affidavit of the 1st defendant, wherein she had reiterated that the suit site had been sold to the plaintiff under an agreement for a consideration of Rs. 45,000/- The Trial Court further took note of Ex. P4 -the receipt issued by the Gram Panchayath, Bangalore North Taluk, for having received the tax in respect of the site from the plaintiff, Ex. P5 -demand register extract maintained by the Bagalgunte Village Panchayath, which revealed that the suit site stood in the name of the plaintiff and that it was assessed at Rs. 72-50.
One of the documents produced in support of the case of the plaintiff is Ex. P7 which is a judgment in O.S. No. 668/1992, in which the 1st defendant-owner of the property had sought for permanent injunction against appellants 2 to 4 herein on 15.02.1977. The said suit was decreed in favour of the 1st defendant granting a decree of permanent injunction in respect of 3 acres of land comprised in Sy. No. 85 situated in Bagalgunte village panchayath, Bangalore North Taluk. The Trial Court has taken note of this document as well.
Having regard to the absence of any evidence adduced by the defendants and in the wake of the documents produced by the plaintiff the Trial Court has decreed the suit. Aggrieved by the same, the present appeal is filed.
Learned Government Pleader contends that the land belongs to the Government. The possession of the plaintiff was unlawful. Therefore, he was not entitled for a decree of permanent injunction. Hence, the Trial Court has committed a serious illegality in decreeing the suit.
Counsel for the 2nd respondent supports the findings recorded by the Trial Court and the judgment and decree passed.
I have heard the learned Counsel for both the parties and perused the entire materials on record including the Trial Court records.
The following points arise for my consideration:
(i) Whether the Trial Court committed any illegality in recording a finding that the plaintiff was in lawful possession of the suit property and that there was threat of dispossession for her?
(ii) Whether the judgment and decree of the Trial Court is illegal and unsustainable?
The plaintiff has produced Ex. P1 -agreement for sale executed by the 1st defendant, wherein it is recited that the entire sale consideration of Rs. 45,000/- was paid by the plaintiff to the 1st defendant and by way of part performance of the agreement, plaintiff was put in possession of the suit property by the 1st defendant. On the same day, Ex. P2 -General Power of Attorney is executed by the 1st defendant in favour of the plaintiff authorizing the plaintiff to deal with the suit site. Ex. P3 is the affidavit of the 1st defendant, wherein also she has reiterated the sale of Site No. 35 to the plaintiff for a consideration of Rs. 45,000/-.
The 1st defendant has remained ex-parte. She has not challenged these documents. In the cross-examination of PW-1, the veracity and the genuineness of these documents have not been questioned. It is in this background that the Trial Court has rightly come to the conclusion that the plaintiff proved the execution of the agreement by the 1st defendant by receiving the sale consideration of Rs. 45,000/- and that on the very date of the agreement, plaintiff was put in possession of the suit property by way of part performance of the agreement.
The plaintiff continued to enjoy the property as is evident from Ex. P4 -receipt issued by the Village Panchayat, Bangalore North Taluk, for having received the tax from the plaintiff in respect of the suit site. Even in the demand register extract maintained by the Bagalgunte Village Panchayat, which is produced at Ex. P5, site No. 35 is shown to have stood in the name of the plaintiff.
Another important document produced by the plaintiff is Ex. P7, which is the certified copy of the judgment and decree passed in O.S. No. 668/1992 in favour of the 1st defendant and against defendants 2 to 4, i.e., appellants herein. The Civil Court has granted the decree of permanent injunction against the appellants herein in the suit filed by the 1st defendant. The suit schedule property mentioned in the said suit is 3 acres of land comprised in Sy. No. 85 of Bagalgunte village. The suit schedule property which is the subject matter of dispute in this suit is site No. 35 said to have been carved out of Sy. No. 85.
Similarly, there is a judgment rendered in O.S. No. 5102/1999 which is a suit filed by the 1st defendant against the State and its authorities seeking a decree of declaration and for permanent injunction. In the said suit, as submitted by the learned Counsel at the bar, a decree of declaration declaring that the 1st defendant was the owner of the property has been granted, but the prayer for permanent injunction has been rejected on the ground that sites had been formed in the said land and they had been sold to third parties. Learned Government Pleader submits that this decree is challenged in appeal before this Court in RFA No. 1724/2006.
Be that as it may, the documents produced by the plaintiff including the judgment and decree passed by the Civil Court in O.S. No. 668/1992 clearly discloses that the vendor of the plaintiff was in possession and thereafter the plaintiff has been put in possession as per the agreement of sale executed way back in the year 1995. Therefore, the Trial Court has rightly come to the conclusion that the plaintiff proved her possession over the said property.
The defendants have not led any evidence. They have not produced any documents to show that the property belongs to the State Government. They have also not shown by producing either oral or documentary evidence that the plaintiff was not entitled to remain in possession and that she or her vendor, had illegally encroached upon the Government property. In such circumstances, keeping in mind the allegations made by the plaintiff, the Trial Court has come to the conclusion that there was a genuine apprehension by the plaintiff about the threat to her peaceful possession by the officials who had threatened to demolish the structure put up on the property.
Indeed, it is the case of the defendants-appellants herein that the plaintiff had put up a structure in the suit site. But their assertion is, the said construction and the possession of the same was illegal. In the absence of any material produced by the defendants and in the face of the evidence led by the plaintiff producing the agreement, tax paid receipt, assessment register disclosing the name of the plaintiff in the relevant panchayat extracts, the Trial Court, in my considered view, was right and justified in decreeing the suit by recording a finding that the plaintiff proved her lawful possession. Hence, I answer both the points raised for consideration in favour of the plaintiff-respondent. Therefore, this appeal being devoid of merits, deserves to be dismissed. Accordingly, the same is dismissed. Parties to bear their respective costs.