IN THE COURT OF THE CIVIL JUDGE (SR.DVN.) & J.M.F.C., AT: DEVANAHALLI

PRESENT
Smt. SUSHEELA, B.A., LL.B.,
Civil Judge (Sr. Dvn.) & J.M.F.C.,
Devanahalli.

Dated this the 6th Day of September 2008

O.S.NO. 349/2008

BETWEEN:
S.R.KRISHNAMARAJU                                                PLAINTIFF
(By G.N. Advocate)

AND:

BRIG. R.LOKRANJAN & OTHERS                                DEFENDANTS
(BY Sri. M.G.K., Advocate)

ORDERS ON I.A. – I AND II

I.A.I is directed by the plaintiff Under order 39 rule 1 and 2 R/w. Sec.151 of C.P.C. with a prayer to pass an ad-interim order of temporary injunction against the defendants restraining them from alienating the suit schedule properties pending disposal of the suit.

2.        At the subjoining affidavit, the plaintiff sworn to a fact that, he is the absolute owner of the A schedule property which measures, 10 acres and B schedule property measures 3 acre 10 guntas, which is a portion of A schedule property. The defendants have encroached upon B schedule property illegally and unauthorisdly. They have no rights, title, interest over the ‘B’ schedule property. The 1st defendant has purchased 20 acres of land in Sy.No.13, but in turn, he has disposed off 30 acres of land in Sy.No.13, though what was actually purchased by him was only 20 acres. The defendants No.1 and 2 have fraudulently disposed off more than 10 acres of land. They have encroached upon 3 acres 10 guntas namely ‘B’ schedule property and now they are attempting to alienate the said property. The 1st defendant own and possess the land to the west of ‘A’ schedule property. It is reliably learnt that they are attempting to dispossess of their lands along with ‘B’ schedule property. If they allowed to do so, he will be put to hardship and it will leads multiplicity of proceedings. He has got good case on merits. He has prima-facie case and the balance of convenience lies in his favor. If an order of temporary injunction as prayed is not granted, he will be put to hardship and requested to allow the application as prayed for.

3.        While resisting the instant application, the summons and I.A. I and II notice not yet served on the defendants no.1 and 2. The 3rd defendant appeared through his advocate and filed his written statement along with objection to I.A.I and II.

4.        It is the submission of 3rd defendant that, the application is not at all maintainable either in law or on facts and the same is liable to be dismissed. He has denied all the averments which are contrary to his defence as false. He has also requested to read over the contents of his written statement as a part and parcel of his objections.

5.        The 3rd defendant has denied the stand of the plaintiff that, he is the absolute owner of ‘A’ schedule property and ‘B’ schedule property is the portion of ‘A’ schedule property. He has also denied the allegations that, he has sold 30 acres of land which is more than 10 acres, what he has purchased. According to him, the defendants 1 and 2 have sold only 20 acres of land. The defendants No. 1 and 2 have sold 10 acres, eastern portion of the land to his defendant and he is in possession and enjoyment of the said land along with corresponding revenue entries in the revenue documents. After Hissa-podi of the same, by the survey department, the land has been renumbered as sy.No.128. The plaintiff neither has any revenue entry nor R.T.C. or khata in his favor. Since, there is no such land as claimed by the plaintiff, he has cooked up false story and filed this suit with ulterior motive only to knock off the land belonged to his defendant, bearing Sy.No.128.

6.        The 3rd defendant further submits that, at no point of time, the plaintiff had possession of ‘B’ schedule property nor he has revenue records in his name in respect of said property. The 3rd defendant further submits that, he is in possession of the suit schedule ‘B’ property and the same is Sy. No. 128, with valid title and documentary evidence in his favor. He has a right to enjoy his property in any manner as he desires. In order to interfere with his peaceful possession and enjoyment of said property, the plaintiff has created legal impediments as contended in his plaint.

7.        The 3rd defendant has also submitted that, the plaintiff has filed his suit without producing any record of rights, mutation of suit ‘B’ schedule property in his favor. As per Sec. 132 of KLR act, it is mandate to produce R.T.C. or mutation of the land before the court to maintain the suit. Neither the plaintiff nor his purchaser has any revenue entries in their favor. Therefore, the suit as well as the instant application is not at all maintainable in law and the same has to be dismissed.

8.        The 3rd defendant has submitted that, the plaintiff merely based on the false sale deed dated 10.02.1977 without any revenue records, he is claiming relief by mentioning the schedule ‘A’ and ‘B’ property. He has mentioned the boundaries of suit schedule properties fraudulently and with false boundaries.

9.        The 3rd defendant further submits that, he has every right to alienate or dispose off the schedule ‘B’ property bearing Sy.No.128 and the plaintiff has prima-facie case to object the same.

10.        The 3rd defendant has submitted that, he has purchased the property subject to registered sale deed dated 08.08.2005 and 31.07.2006 in total 10 acres in sy.No.13 for valuable consideration from defendants no.1 and 2. He has also got converted for the formation of layout. The khata has already changed into his name with lawful title. He has spent lakhs of rupees for conversion and development of the land. The disputed property is no more agricultural, as such the instant-application is liable to be rejected.

11.        The 3rd defendant further submits that, the plaintiff has no prima-facie case and the balance of convenience lies in his favor and if an order of temporary injunction is granted, he will be put to hardship. In O.S. No.1616/2005, the concerned court has already rejected the application for injunction filed by the plaintiff. By suppressing the said fact, he has filed this application. He has also suppressed the order dated 09.05.2006, passed by the Thasildar stating that there is no record of such 1 acre and also by order dated 30.05.2000 has rejected the plaintiff application for khata in respect of 1 acre of land as described in ‘B’ schedule and requested to dismiss the instant application.

12.        I.A. II interim application is directed by the plaintiff U/o. 39 rule 1 and 2 of C.P.C. with a prayer to pass an ad-interim order of temporary injunction against the defendant from changing the nature of ‘B’ schedule property pending disposal of the suit.

13.        At the subjoining affidavit, he has sworn to a fact that, he is the absolute owner of the ‘A’ schedule property which measures, 10 acres and ‘B’ schedule property measures 3 acres 10 guntas, which is a portion of ‘A’ schedule property. The defendants have encroached upon ‘B’ schedule property illegally and unauthorisedly. They have no right, title, interest over the ‘B’ schedule property. The defendants are claiming that they have purchased 20 acres of land in Sy.No.13, but in turn, the 1st defendant disposed off 30 acres of land in Sy.No.13 though he has purchased 20 acres only. He has disposed off fraudulently of more than what he owned and possesses. In the process of the defendants fraudulent act and itself having encroached and trespassed upon ‘B’ schedule property and now they are attempting to change the nature of the said property. If they are not prevented and restrained from changing the nature of the ‘B’ schedule property, his case will be prejudiced and he will be put to hardship. He has got good case on merit and made out prima-facie case. The balance of convenience lies in his favor and if an order of temporary injunction is granted, no hardship will be caused to the defendants and requested to allow the application as prayed for.

14.        While resisting the instant application, the 3rd defendant filed his objection stating that, the application is not at all maintainable either in law or on facts and the same is liable to be dismissed. He has denied all the averments which are contrary to his defense as false. He has also requested to read over the contents of his defense statement as a part and parcel of his objections.

15.        The 3rd defendant has denied the stand of the plaintiff that, he is the absolute owner of ‘A’ schedule property and ‘B’ schedule property is the portion of ‘A’ schedule property. He has also denied the allegations that, he has also 30 acres of land which is more than 10 acres, what he has purchased. According to him, the defendants No.1and 2 has sold only 20 acres of land. The defendant Nos. 1 and 2 have sold 10 acres, eastern portion of the land to this defendant and he is in possession and enjoyment of the said land along with corresponding revenue entries in the revenue documents. After Hissa-podi of the same, by the survey department, the land has been renumbered as Sy.No.128. The plaintiff neither has any revenue entry nor R.T.C. or khata in his favor. Since, there is no such land as claimed by the plaintiff, he has cooked up false story and filed this suit with ulterior motive only to knock off the land belonged to this defendant, bearing Sy.No.128.

16.        The 3rd defendant further submits that, at no point of time, the plaintiff had possession of ‘B’ schedule property nor he has revenue records in his name in respect of said property. The 3rd defendant further submits that, he is in possession of the suit schedule ‘b’ property and the same Sy.No.128, with valid title and documentary evidence in his favor. He has a right to enjoy his property in any manner as he desires. In order to interfere with his peaceful possession and enjoyment of said property, the plaintiff has created legal impediments as contended in his plaint.

17.        The 3rd defendant has also submitted that, the plaintiff has filed this suit without producing any record of rights, mutation of suit ‘B’ schedule property in his favor. As per Sec.132 of KLR Act, it is mandate to produce R.T.C. or mutation of the land before the court to maintain the suit. Neither the plaintiff nor his purchaser have any revenue entries in their favor. Therefore, the suit as well as the instant application is not at all maintainable in law and the same has to be dismissed.

18.        The 3rd defendant has submitted that, the plaintiff merely based on the false sale deed dated 10.02.1977 without any revenue records, he is claiming relief by mentioning the schedule ‘A’ and ‘B’ property. He has mentioned the boundaries of the suit schedule properties fraudulently and with false boundaries.

19.        The 3rd defendant further submits that, he had every right to alienate or dispose off the schedule ‘B’ property bearing Sy.No.128 and the plaintiff has no prima-facie case to object the same.

20.        The 3rd defendant has submitted that, he had purchased the property subjected to registered sale deed dated 08.08.2005 and 31.07.2006 in total 10 acres in Sy.No.13 for valuable consideration from defendants No. 1 and 2. He has also got converted for the formation of layout. The khata has already changed into his name with lawful title. He has spent lakhs of Rupees for conversion and development of the land. The disputed property is no more agricultural, as such the instant application is liable to be rejected.

21.        The 3rd defendant further submits that, the plaintiff has no prima-facie case and the balance of convenience lies in his favor and if an order of temporary injunction is granted, he will be put to hardship. In O.S. No.1616/2005, the concerned court has already rejected the application for injunction filed by the plaintiff. By suppressing the said fact, he has filed this application. He has also suppressed the order dated 09.05.2006, passed by the Thasildar stating that there is no record of such 1 acre and also by order dated 30.05.2000 has rejected the plaintiff application for khata in respect of 1 acre of land as described in ‘B’ schedule. The 3rd defendant submits that, he has already formed a layout in his land after obtaining BIAPPA’s approval and conversion. If the injunction is granted, he will be put to hardship and requested to dismiss the instant application.

22.        Agreements on I.A. I and II heard from both sides and the matter is set down for orders on I.A. I and II.

23.        On Looking to the pleadings of I.A. I and II with objections, the following points, that would arise for my consideration;

(i)        Whether the plaintiff has made out a prima-facie case as per I.A. I and II?

(ii)        Whether the plaintiff proves that the balance of convenience lies in his favor as per I.A. I and II?

(iii)        Whether the plaintiff proves irreparable injury is going to be caused to him per I.A. I and II?

(iv)        What order?

24.        My findings to the above points are as follows:

Point No. 1 to 3:        in the negative,
Point No. 4          :        As per final order
for the following;

R E A S O N S

25.        Point No.1 to 3:-  As these points are inter linked one, hence, I have taken up all the points together for my consideration in order to avoid repetition of reasonings.

26.        Perused the entire records, I.A. I and II with affidavits and objections to both I.As filed by the defendants, arguments addressed by the learned advocates for the parties and the documents made available by them.

27.        Admittedly, this suit filed by the plaintiff for declaration that he is the absolute owner of the ‘B’ schedule property, for removable of the compound wall put on the ‘B’ schedule property, to direct the defendants to hand over the possession of ‘B’ schedule property to the plaintiff after removal of the structure put by the defendants on the said property. For enquiry, of mesne profits, for costs and such other reliefs. No doubt, it is true, the stage of the proceedings when the suit summons and I.A. notice was ordered to be issued on the defendants, at that time, the 3rd defendant obtained direction to this court in MFA 672/2008 to hear I.A. I and II on 20.08.2008, itself and to pass an orders on I.A. I and II expeditiously. As such, the issuance of process against the defendants No. 1and 2 is pending. The original date given to 17.09.2008. This court by pre-poning the case on 20.08.2008 and heard the argument on I.A. I and II from both sides and the matter is set down for orders on I.A. I and II.

28.        In both interlocutory applications filed U/o. 39 rule 1and 2 R/w Sec.151 of C.P.C. by the plaintiff has taken similar contention except at prayer as per I.A. I restrain the defendants from alienating suit ‘B’ schedule property and as per I.A. II, restrain the defendant from changing the nature of the schedule property. The 3rd defendant has also filed common objections with little different stand according to the prayer sought in both applications, he has filed his objections. Hence, the contents of both affidavits and both objections stated herein, in brief.

29.        It is the contention of the plaintiff that, he is the absolute owner of the ‘A’ schedule property which measures 10 acres and ‘B’ schedule property measures 3 acres 10 guntas, which is a portion of ‘A’ schedule property. The defendants have encroached upon ‘B’ schedule property illegally and unauthorisedly. They have no right, title, interest over the ‘B’ schedule property. The 1st defendant has purchased 20 acres of land in Sy.No.13, but in turn, he has disposed off 30 acres of land in Sy.No.13, though what was actually purchased by him was only 20 acres. The defendant No. 1 and 2 have fraudulently disposed off more than 20 acres of land. They have encroached upon 3 acres 10 guntas namely ‘B’ schedule property and now they are attempting to alienate the said property. The 1st defendant own and possess the land to the best of ‘A’ schedule property. It is reliably learnt that they are attempting to dispossess of their lands along with ‘B’ schedule property. If they allowed to do so, he will be put to hardship and it will lead to multiplicity of proceedings. He has got good case on merits. He has prima-facie and the balance of convenience lies in his favor. If an order of temporary injunction as prayed is not granted, he will be put to hardship.

30.        On the contrary, it is the stand of the 3rd defendant he has denied the stand of the plaintiff that, he is the absolute owner of ‘A’ schedule property and ‘B’ schedule property is the portion of ‘A’ schedule property. He has also denied the allegations that, defendant No. 1 has sold 30 acres of land which is more than 10 acres, what he has purchased. According to him, the defendant No. 1 and 2 have sold only 20 acres of land. The defendants No. 1 and 2 have sold 10 acres, eastern portion of the land to this defendant and he is in possession and enjoyment of the said land along with corresponding revenue entries in the revenue documents.  After Hissa-podi of the same, by the survey department, the land has been renumbered as Sy.No.128. The plaintiff neither has any revenue entry nor R.T.C. or khata in his favor. Since, there is no such land as claimed by the plaintiff, he has cooked up false story and filed this suit with ulterior motive only to knock off the land belonged to this defendant, bearing Sy.No.128.

31.        The 3rd defendant further contends that, at no point of time, the plaintiff had possession of ‘B’ schedule property nor he has revenue record in his name in respect of said property. The 3rd defendant further submits that, he is in no possession of the suit schedule ‘B’ property and the same is Sy.No.128, with valid title and documentary evidence in his favor. He has a right to enjoy his property in any manner as he desires. In order to interfere with his peaceful possession and enjoyment of said property, the plaintiff has created legal impediments as contended in his plaint.

32.        The 3rd defendant has also contended that the plaintiff has filed this suit without producing any record of rights, mutation of suit ‘B’ schedule property in his favor. As per Sec.132 of KLR Act, it is mandate to produce R.T.C. or mutation of the land before the court to maintain the suit. Neither the plaintiff nor his purchaser have any revenue entries in their favor. Therefore, the suit as well as the instant application is not at all maintainable in law and the same has to be dismissed.

33.        The 3rd defendant has contended that, the plaintiff merely based on the false sale deed dated 10.02.1977 without any revenue records, he is claiming release by mentioning the schedule ‘A’ and ‘B’ property. He has mentioned the boundaries of suit schedule properties fraudulently and with false boundaries.

34.        The 3rd defendant further contends that, he has every right to alienate or dispose off the schedule ‘B’ property bearing Sy.No.128 and the plaintiff has no prima-facie case to object the same.
35.        The 3rd defendant has contended that, he has purchased the property subjected to registered sale deeds dated 08.08.2005 and 31.07.2006 in total 10 acres in Sy.No.13 for valuable consideration from defendants No. 1 and 2. He has also got converted for the formation of layout. The khata has already changed into his name with lawful title. He has spent lakhs of rupees for conversion and development of land. The disputed property is no more agricultural, as such the instant application is liable to be rejected.

36.        The 3rd defendant further contends that, the plaintiff has no prima facie case and the balance of convenience lies in his favor and if an order of temporary injunction is granted, he will be put to hardship. In O.S. No.1616/2005, the concerned court has already rejected the application for injunction filed by the plaintiff. By suppressing the said facts, he has filed this application. He has also suppressed the order dated 09.05.2006 passed by the Thasildar stating that there is no record of such 1 acres and also by order dated 30.05.2000 has rejected the plaintiff application for khata in respect of 1 acres of land as described in ‘B’ schedule. The 3rd defendant contends that he has already formed a layout in his land after obtaining BIAPPAS approval and conversion. If the injunction is granted, he will be put to hardship.

37.        The above said stand of the parties gives inclination of serious dispute with regard to identify of ‘B’ schedule property as contended by the plaintiff and the possession of ‘B’ schedule property by 3rd defendant has Sy.No.128. But the above said stand has to be decided only at the time of full fledged trial and not at this stage. Here, this court has to be seen only whether the plaintiff has made out prima-facie case for grant of a relief as prayed in I.A. I and II, the balance of convenience lies in his favor and if an order of temporary injunction as prayed in I.A. I and II is not granted, he will be put to hardship.

38.        By going through the written statement and objection to I.A. I and II filed by the 3rd defendant and also the averments with regard to the original vendors who had title over the entire extent of Sy.No.13, both plaintiff and defendant no.3 are not disputing the same. According to them, originally the Sy.no.13, land measuring 174 acres of Navarathna Agrahara Village, Jala Hobli, Devanahalli Taluk, belonged to B. Krishna Swamy Iyengar, who sold the same to one Kempaiah under a registered sale deed dated 19.02.1943. they have also not disputed the said Kempaiah along with his sons, got entered a registered settlement deed dated 30.07.1953 with regard to his family properties along with sy.no.13, land measuring 174 acres. As per the said settlement deed, 71 acres out of 174 acres of Sy.no.13 was given to his son K. Nagaraj, who was the original vendor of the plaintiffs. As per the copy of registered settlement deed dated 30.07.1953 made available by the plaintiff, it prima-facie reveals with boundary that land measuring 74 acres out of 174 acres in Sy.no.13 of Jodi Inam Navarathna Agrahara Village, Devanahalli Taluk bounded on;

“East        :        Shettigere Elle
West        :        Land bearing Sy.No.12 and 17
property
North        :        Remaining land in Sy.No.13 and
South        :        Remaining land of Kempaiah in
the same Sy.No.”

The learned advocate for defendants addressed his arguments stating that, at the time of settlement of family properties, K.Nagaraj was given 74 acres in Sy.No.13, which was northern portion of the entire land of 174 acres and the father namely Kempaiah retained 100 acres only. Further, on perusal of the very same document, the prima-facie reveals, the boundaries of 100 acres of land retained by Kempaiah is East by: Shettigere Village boundary, West by:Sy.No.17, 18, 14, 30, 32, 34 and 35, North by: Nagaraj’s land and South by: Tharabanahalli Gadi, here it is relevant to note, the plaintiff also not disputing the title of Kempaiah with regard to the 174 acres of Sy.no.13 and 74 acres was given to the K. Nagaraj as per Settlement Deed dated 30.07.1953.

39.        Now, left with whether the plaintiff has made out prima-facie case that A schedule property come within the boundaries of 74 acres allotted to K. Nagaraj as per the registered settlement dated 30.07.1953. It is relevant to note, the plaintiff schedule as furnished in the plaint that;

“All that piece and parcel of land measuring  10 acres in Sy.no.13 of Navarathna Agrahara Village, Jala Hobli, Bangalore North Taluk, Bangalore District, bounded on the:

East by        :        Property of Smt. Leela Jacob
West by        :        Property of Sri. Lokaranjan
(Defendant No.1)
North by        :        Property of Smt.Susheela
South by        :        Road and Village border

All that piece and parcel of land measuring 04 Acres (which is western portion of the schedule ‘A’ property), in Sy.No.13 of Navarathna Agrahara Village, jala Hobli, Bangalore District bounded on the:

East by        :        Schedule ‘A’ property
West by        :        Property of Sri. Lokaranjan
(Defendant No.1)
North by        :        Property of Smt.Susheela
South by        :        Road and Village border”

40.        The plaintiff has made available the copy of his vendors title deeds namely registered sale deed dated 01.09.1958 executed by K.Nagaraj in favor of Bheema Varapu Rathnoji Rao in respect of 65 acres 27 guntas. As per the said sale deed, the boundaries of the entire property is that, the land measuring 65 acres 27 guntas out of 74 acres in Sy.No.13 bounded on East: Shettigere Elle, West: Sy.No.12, remaining land in Sy.No.13 and then Sy.No.17, North: remaining land of Rathnoji Rao, South: Property of Keralamma, Lokaranjan and Sathyanarayana Rao. This boundary prima-facie reveals the property of 1st defendant situated at the southern side of the property purchased by the Bheema Varapu Rathnoji Rao, wherein the plaintiff is tracing his title of the schedule property in the said land.

41.        It is the contention of the plaintiff that, his immediate vendors namely, Usha Rao and Susheela Devi and purchased their respective nine acres of land under two different registered sale deeds dated 23.09.1958 from Bheema Varapu Rathnoji Rao. Here, it is relevant to note that, the schedule of the said properties as per the registered sale deed, pertains to Smt. Usha Rao dated 23.09.1958 in respect of 9 acres of land in Sy.No.13 bounded on;

“East by        :        Property sold to Venkata Rao
this day
West by  :        Agrahara Gundappa’s property and Sy.No.17
North by :        Property sold this day to Smt. Lakshmi Narasamma
South by :        Property sold this day to Smt. Susheela Devi”

So also the boundaries of the property pertains to Susheela Devi as per registered sale deed dated 23.09.1958 reveals that;

“East by        :        Appala Venkata Rao property
West by :        Sy.No.17 and Gundappa’s property
North by :        Property sold this day to Smt. Usha Rao
South by :        Land sold to M.V.S. Rao”

Further, the wife of Ramarao, namely Lakshmi Narasamma, the mother of Usha Rao had also purchased 9 acres of land from Behhma Varapu Rathnoji Rao on the very same day as per the registered sale deed dated 23.09.1958 and the boundaries given in the said deed is that;

“East by        :        Appala Venkata Rao property
West by :        My remaining portion of land
North by :        Own property
South by :        Property sold this day to Usha Rao.”

42.        The learned advocate for the defendants argued that the above said three properties though the vendors of the plaintiff purchased 27 acres from Rathnoji Rao out of 64 acres 27 guntas under the three different sale deeds, but the said three portions were run from north to south vertically one below the other and the said three portions were abutting to each other vertically on the north to south side. On perusal of the produced three registered sale deeds dated 23.09. 1958 and the boundaries given in the said registered sale deeds, if prima-facie reveals the properties sold to Lakshmi Narasamma was situated at extreme northern side of three portions and then the property of Susheela Devi and lastly at southern portion, the property of Usha Rao situated. With these property, and the boundaries, now left with the stand taken by the plaintiff that, whether the disputed property is situated towards west of the suit ‘A’ schedule property and the defendants trespassed on the said portion.

43.        It is the stand of the plaintiff that, Usha Rao and Susheela Devi through their power of attorney holder Rama Rao sold 6 acres of land of Sy.No.13 in favor of N.Balaraj under a registered sale deed dated 10.02.1977. He has also made available the copy of said sale deed. On perusal of the said document, the boundaries of the said property prima-facie reveals that land measuring 6 acres in Sy.No.13 bounded on East: Leela G. Rao’s land, West: Remaining land in Sy.No.13, North: Remaining land of the vendor in the same Sy.No. and South: Susheelamma’s land. But the learned advocate for the defendants vehemently argued that, the boundaries of the land when purchased by Usha Rao and Susheela Devi, Sy.No.17 was situated towards west. But while mentioning the western boundary at the registered sale deed dated 10.02.1977, has remaining land of Sy.No.13 and south by land of Susheelamma. This shows, the boundaries given in the registered sale deed dated 10.02.1977, in respect of 6 acres of land differs with the purchase of lands by Smt. Usha Rao and Susheela Devi as per registered sale deed dated 23.09.1958. The learned advocate for defendant No.3 has also made available the copy of registered sale deed  dated  10.02.1977, wherein the GPA holder of Usha Rao and Susheela Devi namely M.S. Ramarao had executed the said deed in favor of V. Susheela in respect of 12 acres of land and the schedule given in the said document clinches the issue unequivocally points out, the land measuring 12 acres out of Sy.No.13 of Navarathna Agrahara Village, Jala Hobli, Devanahalli Taluk, bounded on East: Land of Guru Deep Singh  West: Land of Papanna and Sy.No.15, North: Road leads from Bellary road towards Navarathana Agrahara and South: Remaining land of the vendor. As per the above said three documents, both Usha Rao and Susheela Devi, purchased 9 acres of land each in total 18 acres and out of 18 acres, they have sold 6 acres in favor of M.Balaraj and 12 acres in favor of V.Susheela. But the above said two sale deeds prima-facie reveals with regard to the boundaries mentioned in the document pertains to N.Balaraj differs with that of original boundaries of the properties purchased by Usha Rao and Susheela Devi. At the same time, the boundaries mentioned with regard to the 12 acres of land, towards northern side it has been mentioned as road runs from Bellary road towards Navarathana Agrahara instead of mentioning the property of Lakshmi Narasamma, who purchased the 9 acres of land under a registered sale deed dated 23.09.1958. At this stage, this court opines, the learned advocate for the 3rd defendant has rightly argued with regard to the land pertains to the Lakshmi Narasamma might have gone to the road and the remaining 18 acres of land sold by Usha Rao and Susheela Devi as per the registered sale deeds dated 10.02.1977. Further, it prima-facie reveals Rathnoji Rao purchased 65 acres 27 guntas from K. Nagaraj under a registered sale deed dated 01.09.1958 having southern boundary of lands belonged to Smt. Keralamma, Brigadier Lokaranjan and Sathyanarayana Rao. On the other hand, there is mentioning of own property by the vendor and at northern side, it has been mentioned as land of M.V.S. Rao. At this stage, this court opines, the plaintiff prima-facie fails to establish that the southern boundary of the property belonged to Gowramma, Brigadier Lokranjan and Sathyanarayana Rao. More over, the above said 3 sale deeds also clearly reveals towards western side – property of Agrahara Gundappa and their Sy.No.17 and there is no mentioning of the property pertains to the 1st defendant. With these, now left with the purchase of the ‘A’ schedule property from N.Balaraj by the plaintiff.

44.        It is the contention of the plaintiff that, he has purchased 6 acres of land from N.Balaraj under aregisteredsale deeddated20.01.1980. On perusal of the copy of the said documents, the boundaries of the property given as land measuring 6 acres in Sy.No.13, bounded on towards East-property of Leelaji Rao, West – remaining land in s.13, North – property of Susheelamma and South – remaining land of the vendors. Here, the boundaries of the 6 acres of land differs with the boundaries as mentioned in the vendors title deed dated 10.02.1977. Further, another registered sale deed dated 10.02.1977, executed by the M.S. Rama Rao as a power of attorney holder of Lakshmi Narasamma in respect of 4 acres of land in Sy.No.13, whereas bounded on east-land sold to N.Balaraj and south-remaining land retained by the vendor, Lakshmi Narasamma. On perusal of the boundaries of these two documents and the boundaries mentioned in’A’ scheduleproperty, except western boundary, the other boundaries are differs with each other. As per the original vendors 71 acres boundary, western side only Sy.No.12 and 17 and not the remaining land of Sy.No.13 which could not be prima-facie reveals the defendants property might have come towards western side. On the other hand, at northern side it has been mentioned as Sy.No.13 and then southern side it has been mentioned as remaining land of the Kempaiah. Even the southern boundary of ‘A’ schedule property taken into consideration, it reveals road and Village border. But as per the remaining 100 acres boundary, the southern boundary comes as Tharabana Halli Gadi and eastern side Shettigere Village boundary. Here, this court opines, the documents produced by the plaintiff prima-facie reveals the boundaries of ‘A’ schedule property differs with that of boundaries of the property of his original erstwhile vendors.

45.        Now, left with the property claimed by the 3rd defendant and produced documents to know whether it substantiated the prima-facie case of the 3rd defendant and the balance of convenience lies in favor of 3rd defendant. According to the3rddefendant the original vendor Kempaiah had executed registered WILL dated 01.08.1956 bequeathing his 100 acres in favor of his other sons namely K.Munishamappa in respect of 34 acres, K.Muniyappa @ Shamaiah 33 acresand K. Srinivas Murthy in respect of 33 acres. As per the property allottedto K. Munishamappa in respect of34 acres, the boundaries of the said property was east by land allotted to K.Muniyappa @ Shamaiah in respect of 33 acres in Sy.No.13, west by Sy.No.34, 35 and 32, north by Sy.No.14 and 16, south by Tharabanahalli boundary. This prima-facie reveals extreme 34 acres towards southern boundary was allotted to K.Munishamappa.

46.        As per the property measuring 33 acres out of 100 acres in Sy.No.13 aHotted to K.Muniyappa @ Shamaiah, the boundaries are east by K. Srinivas Murthy, hisse 33 acres, west by out of same Sy.No. allotted to Munishamappa, south by lands of Sy.No.17 and 18 south by Tharabanahalli boundary. This boundary reveals the middle portion of total 100 acres of land was allotted to him.

47.        The property allotted to K.Srinivas Murthy is respect of 33 acres out of 100 acres in Sy.No.13 and the boundaries was East by Shettigere Halli Village boundary, west-33 acres allotted to K. Muniyappa @ Shamaiah, North by – property allotted to Nagaraj, South by Tharabanahalli and Meenarakunte Village. This boundary reveals towards eastern side of entire 100 acres of land having links with northern boundary, the original vendor of the plaintiff namely K.Nagaraj in respect of 74 acres and south by Tharabanahalli boundary. With these prima-facie observation, now left with the property purchased by the3rd defendant, whether it prima-facie comes under western boundary of plaint schedule property and the 3rd defendant disposes the disputed property from western side of his property.

48.        It is the contention of the 3rd defendant that he is the absolute owner in possession and enjoyment of land bearing Sy.No.13/277 and new No.128, measuring 10 acres, situated at Navarathana Agrahara Village, Jala Hobli, Bangalore North Taluk, having purchasedby him under two different sale deeds dated 05.08.2003 and then 31.07.2006 in respect of 5 acres each in total 10 acres from Brigadier Lokranjan,who is the 1st defendant. Further, it is the stand of the 3rd defendant that,the 1stdefendant had purchased 20 acresof landfrom K.Muniyappa @ K.Shamaiahunder a registered saledeed dated 14.02.1958. If this standtaken into consideration, the property purchased by 3rddefendant iswithin the boundary of land measuring 33 acres bounded on East by K.Srinivas Murthy Hisse 33 acres, West by the remaining land in the same Sy.No.belonged to K.Munishamappa’s Hisseland,North by Sy.No.17 and18, South by Tharabanahalli boundary. As per the registered sale deed dated 11.02.1958 in respect of 20 acres of land portion to ther 1st defendant East by K.SrinivasaMurthy’s land, West by Venkata Sathyanarayana’s land, North by property of K.Nagaraj, South by Tharabanahalli boundary. If this boundary taken into consideration, it runs towards eastern side of the allotted properties boundaries of K. Muniyappa @ Shamaiah and not runs towards western side of the said property. More over, the boundaries of the property purchased by the 3rd defendant under two different separate registered sale deeds prima-facie reveals that;

“As that piece and parcel of the central portion of agricultural land bearing (Old Sy.No.13) Sy.No.13/277 at Navarathana Agrahara, Jala Hobli, Bangalore North Taluk, measuring five acres and bounded on;

East by :        Vendor no. 1’s remaining five acres eastern portion in Sy.No.13/277
(Under litigation against Smt. Jayamma)

West by :        Vendor no. 1’s remaining ten acres western portion in Sy.No.13/277
(Under litigation against Smt. Jayamma)
North by :        Nala

South by :        Tharabanahalli Village boundary

As per the registered sale deed dated 31.07.2006, the purchased property boundary is that;

“East by        :        Land bearing Sy. No.13/P1

West by        :        5 acres Central portion in new Sy.
No.13/277 (old No.13) already sold
to the purchaser.

North by :        Sushilamma’s land and Nala

South by :        Tharabanahalli Village boundary.”

and the annexed sketch clearly reveals the purchased property of 3rd defendant situated eastern, southern sides of total 100 acres of land and not either northern side or western side or extreme western side of the said property. If the said boundary compared to the suit schedule ‘A’ property, it differs with each other from the property allotted to the original vendor K.Nagarajin respect of 74 acres. Whatever the property purchased by the plaintiff as per ‘A’ schedule, at this stage, this count opines, which has to be come within the boundaries of 74 acres as per the boundaries furnished at the registered Settlement Deed dated 30.07.1953 and not as contended by the plaintiff. Here, on perusal of the 74 acres as mentioned in the said deed, towards east – Shettigere Elle, towards west – Sy.No.12 and 17, towards north – Sy.No.13 and towards south – remaining 100 acres of land belonged to Kempaiah. But on perusal of the vendors title deed of the 3rd defendant and the boundaries mentioned therein, there is no iota prima-facie evidence that the disputed portion situated towards eastern side of the purchased property of the 3rd defendant. On the other hand, the total 20 acres of land eastern boundary is property allotted to K.Srinvas Murthy and western boundary is Venkata Sathyanarayana Rao’s land only towards northern side property allotted to Nagaraj is situated. So also in respect of 10 acres of land, as per the registered sale deeds, made available by the property himself, it reveals towards eastern side vendors remaining 5 acres, eastern portion land in Sy.No.13/277, under litigation against K. Srinivas Murthy and towards western side 5 acres northern portion of new Sy.No.13/277, already sold to the purchaser, towards north property of Jayanamma and Susheelamma and towards south Tharabanahalli boundary.

49.        Viewing the entire material documents made available by both parties, it prima-facie reveals the plaintiff has not made out prima-facie case that the alleged property purchased by the defendantsno.1 to 3 and come towards western boundary of the suit schedule property and the defendants have encroached ‘B’ schedule property towards western side of ‘A’ schedule property. No doubt, it is true, while addressing arguments by the learned advocate for plaintiff, have taken stand that the 1st defendant has sold 10 acres of land excess to what he has purchased. But at this stage, this court opines, that has to be looked into only at the time of full pledged trial and not at this stage. At this stage,, this court has to see whether the plaintiff has made out prima-facie case with regard to the alleged encroachment of ‘B’ schedule portion and they are trying to alienate the schedule property has to be looked into. More over, this court has to see whether the balance of convenience lies more in favor of the plaintiff or in favor of defendants.

50.        The plaintiff except producing the copies of title documents and R.T.C. Extracts of his portion of the property, which is the portions property in respect of 6 acres of land (      )  he has not made available the RTC Extracts of 4 acres as on the date of filing suit. On the other hand, the 3rd defendant has taken contention that after purchase of the 5 acres of land each in two different sale deeds dated 05.08.2005 and 31.07.2006 and M.R.92/06-07 and as on the date of filing suit, he is in possession and enjoyment of 10 acres of land and the ‘B’ schedule property is part and parcel of the said 10 acres of land and not the part and parcel of ‘A’ schedule property as alleged by the plaintiff. Further, he has also made available the prima-facie documents in respect of order passed by the Special Deputy Commissioner for Abolition of Inam’s, wherein the 1st defendant filed his vendor’s and his brother K. Srinivasa Murthy, endorsement and also the RTC extracts for the year 2007-08 which 5 acres of land each stands in the name of 3rd defendant and also the order of RRT. Dis.26/07-08 filed by the plaintiff against the 3ed defendant in respect of the rejection of RRT petition stating that;

Matter is in kannada

51.        No doubt, it is true, the plaintiff made available the documentation about the appeal preferred by him against the order of the Thasildar as per R.A. 180/2007, but at this stage, this court opines, the 3rd defendant has made out prima-facie with regard to the disputed land in question is part and parcel of the 10 acres of land of 3rd defendant has not remains as agricultural land. It was already converted for the purpose of incidental layout and he got the approved layout from the authority. More over, the produced Village Map prima-facie reveals the Sy.No.17, which is the fixed boundary to both 74 acres and 100 acres which comes under the corner of northern and western side of 100 acres of land belonged to original vendor Kempaiah and western southern corner of 74 acres allotted to the original vendor of the plaintiff K. Nagaraj. As per the sketch, furnished by the 3rd defendant and also along with two registered sale deeds, the land purchased by the 3rd defendant comes under middle of the total 100 acres of land having link towards northern side of Sy.No.17 and southern side of Tharabanahalli Gadi.

52.        The learned advocate for the defendant argued that the plaintiff has filed O.S.No.1616/2005 before the Additional Civil Judge, Junior Division, Bangalore Rural District, Bangalore, wherein the learned Civil judge rejected the application filed U/o.39 rule 1 and 2 and 7 R/w. Sec.151 of C.P.C. stating that the plaintiff has not made out prima-facie case. But with due respect to the learned advocates for the parties, this court opines, the said order is not binding on this court.

53.        Taking into consideration of the entire material documents made available by both parties, this court opines, the produced documents prima-facie reveals there is discrepancies in identify of the ‘B’ schedule property, as alleged by the plaintiff and the produced documents reveals, the balance of convenience lies in favor of the defendants and if an order of temporary injunction is granted against the defendants, they will be put to hardship. More over, granting of order of temporary injunction is purely a discretionary relief and it will be granted only to a person who has approached the court with clean hands and not who has suppressed any material facts before court. Here, the plaintiff has not come up with clean hands in respect of identify of his ‘B’ schedule portion, as such, this court opines, that he is not entitled for the relief as prayed in I.A. I and II. Consequently, I hold point no 1 to 3 in the negative.

54.        Point No.4: In view of my findings given to point No.1 to 3, the plaintiff is not entitled for the relief sought as prayed in both I.A.I and II. In the result, I proceed to pass the following:

O R D E R

I.A.I and II filed – U/o.39 rule 1 and 2 R/w Sec.151 of C.P.C. by the plaintiff is hereby dismissed.

No order as to costs.

(SUSHEELA)
Civil Judge (Sr. Dvn.) & J.M.F.C.,
Devanahalli.

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