SHESHMAL M. JAIN Vs. B.M.SRINIVASA

JUDGEMENT

(1.) This is a defendant's appeal. The present respondent as a plaintiff had instituted a suit against the present appellant arraigning him as defendant in O.S.No.2963/2016, in the Court of the learned LIX Addl.City Civil and Sessions Judge (CCH-60), Bangalore City, (hereinafter for brevity referred to as 'the trial Court'), seeking for permanent injunction against the defendant restraining him from interfering with the peaceful possession and enjoyment of the plaint schedule property.

(2.) The summary of the plaint of the plaintiff in the trial Court was that the land bearing Survey No.43 of Yediyur Village, Uttarahalli Hobli, Bengaluru South Taluk, was totally measuring 7 acres 25 guntas. The land measuring 1 acre 26 guntas was owned and possessed by Sri Narasimhaiah. Sri Narasimhaiah sold 1 acre 26 guntas of land in Survey No.43 in favour of Sri Rangappa through registered Sale Deed dtd. 3/6/1960. Sri Rangappa died on 15/11/1985 leaving behind his wife Smt.B.N.Lakshmi and other heirs. Thereafter, Smt.B.N.Lakshmi and other heirs of Sri Rangappa inherited 1 acre 26 guntas of land in Survey No.43. Then Smt.B.N.Lakshmi gifted 1 acre 26 guntas of land to her son Mr.Madhusudan R., through registered Gift Deed dtd. 27/2/2006. Mr.R.Madhusudan and his family members have sold the schedule property in favour of plaintiff through registered Sale Deed dtd. 9/11/2012. The schedule property is part and parcel of 1 acre 26 guntas of land in Survey No.43 referred above. On the basis of the Sale Deed, the plaintiff came in possession of schedule property and he is in possession of schedule property as an absolute owner. It is further alleged by the plaintiff that City Improvement Trust Board (hereinafter for brevity referred to as 'CITB') issued Acquisition Notification for part of land bearing Survey No.43. The possession was taken by CITB [later Bengaluru Development Authorty (hereinafter for brevity referred to as 'BDA')] of land bearing Survey No.43, excluding 1 acre 26 guntas sold in favour of Sri Rangappa. Therefore, the schedule property is not the part of acquisition proceedings. The plaintiff has pleaded that defendant has no right, title and interest in the schedule property. There was structure in the schedule property. On 5/4/2016, the defendant tried to demolish the existing structure in the plaint schedule property and obstructed the peaceful possession of the plaint schedule property by the plaintiff. This constrained the plaintiff to institute a suit against the defendant.

(3.) In response to the summons served upon him, the defendant appeared through his counsel and filed his written statement. In his written statement, the defendant has denied the right, title and possession of the plaintiff over the schedule property. The defendant contended that the property shown in the schedule is not at all in existence and in order to get the property of the defendant, the plaintiff has filed the present suit for injunction. It was also contended by the defendant that one Sri Narasimhaiah was the absolute owner of the land bearing Survey No.43, measuring 7 acres 25 guntas and he sold part of Survey No.43 in favour of Smt.Munithirumalamma through registered Sale Deed dtd. 12/10/1958. She died on 6/4/1972. After her death, her son Sri Ramaiah inherited the property purchased under the Sale Deed dtd. 12/10/1958. According to the defendant, after the death of Sri Ramaiah, his sons (1) M.R.Govindaraju, (2) M.R.Thukaram, (3) R.Lakshminarayana and (4) R.Prakash, inherited the property. Later, they have sold part of their property in favour of defendant through registered Sale Deed dtd. 16/3/1992. Therefore, the defendant is in possession of Site No.1, formed in Survey No.43 of Yediyur Village, measuring East-West 84 ft. on the Northern side and 88 ft. on the Southern side, South-North 30 ft. on the Eastern side and 33 ft. on the Western side and that property is bounded by towards East-road, towards West-remaining property of sellers, towards North-road and towards South-remaining property of sellers which is purchased by Smt.Ramba Bai. The defendant has contended that the property referred above is the part and parcel of land purchased by Smt.Munithirumalamma through registered Sale Deed dtd. 12/10/1958 and on the basis of the Sale Deed, he is in possession of the property. He has filed O.S.No.8962/2013 against the BDA and that suit is still pending. Further, the defendant also contended that a bare suit for injunction is not maintainable and the plaintiff ought to have claimed the relief of declaration of ownership. With this, he prayed for dismissal of the suit.