Bangalore District Court
S Murli vs B Rathna Kumar on 4 March, 2026
KABC0A0016012007
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-29) MAYOHALL, BENGALURU
Dated this the 4th day of March, 2026.
PRESENT:
Sri BALAPPA APPANNA JARAGU, B.Sc., LL.M.,
XXVIII Additional City Civil and Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.25663/2007
PLAINTIFFS : 1. Murli S.,
S/o. Late Shamanna Y.,
Aged about 46 years.
2. Srinivas,
S/o. Late Shamanna Y.,
Aged about 44 years.
3. Haridhara,
S/o. Late Shamanna Y.,
Aged about 42 years.
4. Ravikumar S.,
S/o. Late Shamanna Y.,
Aged about 40 years.
5. Sathyanarayana,
Since deceased by LR's.
Cont'd..
2 O.S.No.25663/2007
5(a). Kamakshi,
Aged about 28 years,
W/o. Sathyanarayana.
5(b). Goutham,
Minor,
S/o. Sathyanarayana.
5(c). Hitesh,
Minor,
S/o. Sathyanarayana.
5(d). Hitendra,
Minor,
S/o. Sathyanarayana.
Represented by natural mother
plaintiff No.5(a),
Smt. Kamakshi.
6. Smt. Narayanamma,
W/o. Late Shamanna Y.,
Aged about 52 years.
7. Venkatesh Y.,
S/o. Late Yellappa,
Aged about 57 years.
8. Smt. Manjula,
W/o. Late Lakshmipathy,
Aged about 45 years.
All the above are residing at
No.119, 11th Cross Civil Station,
Domlur Village, Bangalore-560 071.
(By Sri Anant Mandgi, Advocate)
-VERSUS-
DEFENDANTS: 1. B. Ratna Kumar,
Aged about 50 years,
S/o. B.V Rayanam,
M/s Magnesium Products (Pvt) Ltd,
Virgonagar, Bangalore.
2. A.H. Shariff,
S/o. Late B.M. Abukar,
3 O.S.No.25663/2007
Aged about 70 years.
3. Mrs. Nasreen Shariff,
W/o. A.H. Shariff,
Aged about 60 years.
4. Hussain Shariff,
S/o. A.H. Shriff,
Aged about 36 years.
Defendants No.2, 3 and 4 are
residing at No.422, 8th Main,
4th Block, Koramangala,
Bangalore - 560 034.
(D.1 : Ex-parte)
(D.2 to D4 by Sri C.V.N., Advocate)
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Date of Institution of the Suit : 24-03-2007
Nature of the Suit (Suit on : Injunction Suit
pronote, Suit for declaration
and possession, Suit for
injunction etc,)
Date of the commencement : 17-04-2013
of recording of the evidence
Date on which the Judgment : 04-03-2026
was pronounced
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Year/s Month/s Day/s
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Total duration : 18 years, 11 months, 10 days.
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(BALAPPA APPANNA JARAGU)
XXVIII Additional City Civil and
Sessions Judge, Mayohall, Bengaluru.
JUDGMENT
This suit is instituted by the plaintiffs against the defendants for the relief declaration to declare that, 4 O.S.No.25663/2007 plaintiffs are full and absolute owners of suit 'B' schedule property. The plaintiffs have sought for mandatory injunction, directing defendants to remove and demolish at their costs unauthorized construction put up on schedule 'B' property and handover actual, physical and vacant possession of suit 'B' schedule property to plaintiffs. The plaintiffs have further sought for permanent injunction, restraining defendants, their henchmen, agents, representatives or anybody claiming through them from alienating suit property in favour of any 3rd person by way of sale, gift, lease or mortgage. The plaintiffs further sought for means profits at rate of Rs.10,000/- per month from date of suit, till date of delivery of vacant possession of suit property. The plaintiffs have also sought for permanent injunction, restraining defendants, their men, agents, servants or anybody claiming through them from interfering with plaintiffs peaceful possession and enjoyment of suit schedule property and grant such other relief.
2. The case of the plaintiff in brief is as under:-
That, Sy.No.57/5, measuring 1 acre and Sy.No.58/4, measuring 35 guntas, which are situated 5 O.S.No.25663/2007 at Dommaluru Village originally belonged to Yellappa who is propositus of plaintiffs. Said Yellappa died on 11.04.1991. Plaintiffs No.1 to 5 are sons of Shamanna, who is first son of Yellappa. Plaintiff No.6 is widow of Shamanna being his second wife. Plaintiff No.7 Venkatesh is second son of Yellappa. Plaintiff No.8 is widow of Lakshmipathi, who is 3 rd son of Yellappa.
Sy.No.57/5 and Sy.No.58/4 were proposed to be acquired for formation of layout by Amarajyothi House Building Co-operative Society. Said lands were notified under provisions of Section 4(1) of Land Acquisition Act. Subsequently, S.L.A.O had issued a notification under Section 6(1) of Act. The S.L.A.O has fixed compensation amount. Plaintiffs having not accepted award, challenged same in L.A.C No.463-1986-87 under a reference. The State Government considering the request of plaintiffs that, predecessor in title of plaintiffs have parted with vast lands for defense department and also for formation of Ring road has exercised power under Section 48(1) of Land Acquisition Act and de- notified Sy.No.58/4 and Sy.No.57/5 by its notification dated 14.06.1995, published in official Gazette on 6 O.S.No.25663/2007 15.06.1995. The beneficiary which is Amarajyothi House Building Co-operative Society has challenged de-notification of land by filing W.P.No.28243/1995. In said Writ Petition Amarajyothi House Building Co- operative Society has produced permission granted by BDA along with approved layout plan. It is shown, site No.178 has been formed out of Sy.No.58/4 belonging to family of plaintiffs and also in portion of Sy.No.58/7. The society has further contended, they have already formed roads and totally 28 sites in Sy.No.58/4 and 57/5 belonging to plaintiffs. Consequently, Writ Petition filed by Society was allowed and order of state Government de-notifying lands was set aside. The plaintiff No.7 has filed Writ Appeal No.5695/96. The Division Bench of Hon'ble High Court upheld order of de-notification passed by Government of Karnataka. The Housing Society challenged order passed in Writ Appeal by filing SLP No.7212/1998 before Hon'ble Supreme Court of India. The Hon'ble Supreme Court has dismissed Special Leave Petition and confirmed order passed in Writ Appeal. The matter attained finality and society cannot lay hands over suit property. 7 O.S.No.25663/2007 The plaintiffs filed suit in O.S.No.10719/1995 against Amarajyothi House Building Co-operative Society for relief of injunction and obtained order of injunction, same is still in force. The defendants No.2 to 4 claiming to be purchaser of site No.178 come near suit property and tried to put up compound wall on suit property. The defendants are asserting right over portion of suit property on south eastern side of Sy.No.58/4 on the basis of sale deed executed by Amarajyothi House Building Co-operative Society. Said society cannot convey property in favour of defendant No.1. Plaintiffs are in exclusive and actual possession of suit property. The defendants No.2 to 4 are disputing identity and extent of land encroached by them in schedule 'A' property. The defendants have contended, site No.177 and 178 formed in Sy.No.58/7. The defendants No.2 to 4 have illegally trespassed and commenced construction during pendency of suit. The defendants on the basis of certain documents created by them likely to create encumbrance over suit 'B' property. On these pleadings, plaintiffs have prayed to decree suit as prayed in plaint.
8 O.S.No.25663/2007
3. In response to the service of suit summons, defendants No.2 to 4 have tendered their appearance before the court through their respective counsels and contested the case. Even after service of the summons, the defendant No.1 has not tendered his appearance before the court through his counsel and contested the suit, consequently he was placed ex-parte.
4. The contents of written statement of defendants No.2 to 4 in brief are as under :-
That, suit of the plaintiffs is not maintainable either in law or on facts, same is liable to be dismissed. The plaintiffs are not in possession of suit property. Suit of the plaintiffs is hopelessly barred by law of limitation. These defendants No.2 to 4 are not necessary parties to suit. Suit is bad for non-joinder of necessary parties. Suit land is a non existence land. The extend and boundaries mentioned in schedule to plaint are totally false and incorrect. It is specifically contended that, entire Sy.No.58/7 of Domalur village acquired by Government for benefit of Amarajyothi House Building Co-operative Society. No one has 9 O.S.No.25663/2007 challenged said acquisition by Government of Karnataka. The Housing society has carved out several sites in Sy.No.58/7. One of such site which came to be carved out by society is bearing No.178. Said site allotted and registered in the name of defendant No.1 for valuable sale consideration amount and he was put in physical possession of same. The defendant No.1 sold Site No.178 in favour of defendants No.2 to 4 under registered sale deed dated 29.12.2006. The BDA has sanctioned plan in favour of defendants No.2 to 4 to put up construction over Site No. 178 and adjoining site No.177. The defendants have put up commercial complex over site No.177 and 178, consisting of 17 and sold a major portion of constructed area. Defendants No.2 to 4 are not in entire property bearing No.178. Subject matter of suit is not land bearing Sy.No.58/7 of Dommaluru village or plot bearing No.178 carved out in Sy.No.58/7 instead it is 35 guntas of land in Sy.No.58/4 of Dommaluru village. Property bearing No.178 carved out in Sy.No.58/7 of Dommalur village nothing to do with land in Sy.No.58/4 of Dommaluru village which is subject matter of suit. Defendants No.2 10 O.S.No.25663/2007 to 4 do not claim any right, title or interest over Sy.No.58/4 of Dommaluru village. Plaintiffs have no manner of right, title or interest either in respect of suit properties or in respect of any portion thereof. The plaintiffs filed suit on the basis of certain fabricated, created documents. Boundaries and extent of suit 'A' and 'B' schedule properties described in schedule to plaint are neither true nor correct. The plaintiffs are not entitle for any reliefs. On these grounds, it is requested by defendants No.2 to 4 to dismiss suit of plaintiffs.
5. On the basis of above pleadings of both parties, this court has framed the following :-
ISSUES
1. Whether the plaintiff prove that, he is lawful possession over the suit schedule property on the date of the suit?
2. Whether the plaintiff proves interference caused by the defendant?
3. Whether the plaintiff is entitle for permanent injunction?
4. What order or decree?11 O.S.No.25663/2007
ADDITIONAL ISSUES DATED 19.06.2014
1. Whether the plaintiffs prove that, suit schedule 'B' property is the portion of schedule property as contended in para 15(b) of the plaint?
2. Whether the plaintiffs proves that constructions put up by the defendants No.2 to 4 in site No.178 and 177 are unauthorized and illegal?
3. Whether the plaintiffs are entitled for relief of mandatory injunction as sought for?
4. Whether the plaintiffs prove that they are the full and absolute owners of the suit schedule 'A' and 'B' properties?
5. Whether the plaintiffs are entitled for the relief of possession of 'B' schedule property as sought for?
6. Whether the plaintiffs are entitled for mesne profits as sought for?
7. Whether the plaintiffs are entitled for the relief of permanent injunction as sought for?
8. Whether the suit of the plaintiffs is barred by law of limitation?
12 O.S.No.25663/2007
9. Whether the plaintiffs suit is not maintainable as contended in para 6 of the additional written statement of defendants No.2 to 4?
10. Whether there is any cause of action for the suit?
11. Whether the plaintiffs prove the alleged encroachment as contended in para 15(a) of the plaint?
12. Whether the suit of the plaintiffs is bad for non-joinder of necessary parties?
13. Whether the defendants No.2 to 4 prove that they were the owners of Plot No.178 and 177 carved in Sy.No.58/7 of Domlur Village?
6. To substantiate the case of the plaintiffs, The plaintiff No.1 examined himself as PW1 and produced in all 31 documents as Exs.P1 to Ex.P.32. The defendant No.4 examined himself as DW.1 and produced in all 21 documents as Exs.D.1 to D.21.
7. I have heard the arguments of learned counsel for plaintiffs and defendants I have perused the case records.
13 O.S.No.25663/2007
8. My answers to the above issues are as under-
ISSUE No. 1 :- Partly in the affirmative; ISSUE No.2 :- In the affirmative;
ISSUE No. 3 :-In the affirmative;
Addl. ISSUE No.1 :-In the affirmative;
Addl. ISSUE No.2 :-In the affirmative;
Addl. ISSUE No.3 :-In the affirmative;
Addl. ISSUE No.4 :-In the affirmative;
Addl. ISSUE No.5 :-In the affirmative;
Addl. ISSUE No.6 :-In the affirmative;
Addl. ISSUE No.7 :-In the affirmative;
Addl. ISSUE No.8 :- In the negative;
Addl. ISSUE No.9 :-In the negative;
Addl. ISSUE No.10 :-In the affirmative; Addl. ISSUE No.11 :-In the affirmative; Addl. ISSUE No.12 :-In the negative;
Addl. ISSUE No.13 :- In the negative;
ISSUE No.4 :- As per final order, for the following -
REASONS
9. ISSUES No.1 ADDITIONAL ISSUE NO.1, ADDITIONAL ISSUE NO.4, ADDITIONAL ISSUE NO.11 14 O.S.No.25663/2007 AND ADDITIONAL ISSUE NO.13 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issues, in order to avoid repetition of facts and for convenience sake, all issues are taken together for common discussion.
10. It is pertinent to note here that, in schedule to the plaint, suit 'A' schedule property shown as land bearing Sy.No.58/4 to an extent of 35 guntas, situated at Domalur Village, Bengaluru North Taluk. Likewise, in schedule to plaint, suit 'B' schedule property shown as all area measuring 3400 square feet being a portion of site No.177 and 178 formed in South Eastern side of schedule 'A' property.
11. According to plaintiffs, their ancestor Sri Yellappa was owner of Sy.No.58/4 and 57/5 of Domalur Village. It is specifically pleaded and same is deposed by plaintiff No.1, who examined P.W.1 that, land in Sy.No.57/5 and Sy.No.58/4 were acquired for formation of layout by Amarjyothi Housing Building Co-operative Society. The plaintiffs have produced records of rights of 15 O.S.No.25663/2007 Sy.No.58/4 as per Exs.P.13 and P.14. In said documents, name of ancestors of plaintiffs Sri Yellappa shown as owner and possessor of said survey numbers measuring 1 acre 21 guntas. Ex.P.7 is I.H.C. Register pertaining Sy.No.57/5 and 58/4, which is standing in the name of Yellappa. The subject matter involved in present suit pertaining to Sy.No.58/4 measuring 35 guntas.
12. In order to show, Sy.No.57/5 and Sy.No.58/4 were acquired for formation of layout by Amarjyothi Housing Building Co-operative Society said notification dated 31.12.1981 has been produced as per Ex.P.1. Ex.P.2 is notification under Section 6(1) of the Land Acquisition Act. In said documents, name of Channamma shown in respect of Sy.No.58/4.
13. It is specific contention of plaintiffs that, their ancestors have parted with vast lands for defense department and also for formation of Ring road. As such the Government has exercised power under Section 48(1) of Land Acquisition Act and de-notified land in Sy.No.58/4 and Sy.No.57/5 as per de-notification dated 16 O.S.No.25663/2007 14.06.1995. Said document, which is notification under Section 48(1) of the Land Acquisition Act dated 14.06.1995 has been produced as per Ex.P.5. It is material to mention here that, in respect of above mentioned proceedings, defendant No.4, who examined as D.W.1 has pleaded his ignorance.
14. It is specifically pleaded by plaintiffs and same is deposed by P.W.1 that, the Amarjyothi Housing Building Co-operative Society being aggrieved by order passed by Government under Section 48(1) of the Land Acquisition Act has filed by Writ Petition No.28243/1995 before Hon'ble High Court of Karnataka. Certified copy of order passed by Hon'ble High Court of Karnataka.has been produced as per Ex.P.10. On perusal of order it is evident that, writ petition filed by said society has been allowed and notification passed by Government under Section 48(1) of Land Acquisition Act has been quashed.
15. The Plaintiff No.7 herein being appellant has preferred Writ Appeal No.5695/1996 challenging order passed in Writ Petition No.28243/1995. The Division 17 O.S.No.25663/2007 Bench of Hon'ble High Court has allowed Writ Appeal filed by plaintiff No.7 and order passed in writ petition has been set aside. Certified copy of order in Writ Appeal No.5695/1996 has been produced as per Ex. P.11.
16. It is pertinent to note here that, the Amarjyothi Housing Building Co-operative Society challenging order passed in Writ Appeal referred SLP.No.7212/1998 before Hon'ble Supreme Court of India. The Hon'ble Supreme Court has dismissed Special Leave Petition filed by Amarjyothi Housing Building Co-operative Society. Certified copy of order passed by Hon'ble Supreme Court of India in SLP.No.7212/1998 has been produced as per Ex.P.12.
17. As per proceedings referred above, the Hon'ble Supreme Court of India has dismissed Special Leave Petition filed by Amarjyothi Housing Building Co- operative Society challenging notification issued by Government of Karnataka under Section 48(1) of Land Acquisition Act wherein properties bearing Sy.No.58/4, 57/5 were de-notified. Said order passed by Government has attained finality.
18 O.S.No.25663/2007
18. It is specific contention of plaintiffs and same is deposed by P.W.1 that, entire land in Sy.No.58/7 of Domaluru Village acquired by Government for the formation of layout by Amarjyothi Housing Building Co- operative Society. No one has challenged the said acquisition in Sy.No.58/7 for the benefit of the Housing society. It is further contended, by utilizing the land bearing in Sy.No.58/7 of Domalur Vilalge the Amarjyothi Housing Building Co-operative Society has carved out several plots in said survey number. One such plot come to be carved out by Amarjyothi Housing Building Co-operative Society in said survey number is site No.178. Said site was allotted to B. Ratnakumar who is defendant No.1. It is further contended, defendant No.1 sold site No.178 in favour of defendants No.2 to 4 under sale deed dated 29.12.2006.
19. Certified copy of sale deed dated 01.01.1993 in respect of site No.178 has been produced as per Ex.D.1. Likewise, certified copy of sale deed dated 16.05.1991 executed by Amarjyothi Housing Building Co-operative Society in favour of Dr. Devi Prasad Setty in respect of 19 O.S.No.25663/2007 site No.177 has been produced as per Ex.D.2. Ex.D.3 is certified copy of sale deed dated 29.12.2006 executed by defendant No.1 in respect of site No.178 in favour of defendants No.2 to 4. Ex.D.4 is certified copy of sale deed dated 24.11.1999 executed by Dr. Devi Prasad Setty in favour of Ravi N. Krishnamurthy in respect of site No.177. Ex.D.5 is certified copy of sale deed dated 26.04.2007 executed by Ravi N. Krishnamurthy in favour of defendants No.2 to 4 in respect of site No.177. Based on Exs.D.1 to D.5 as mentioned above, these defendants No.2 to 4 are claiming that, they acquired right, title and interest in site No.177 and 178 formed in Sy.No.58/7 of Domalur Village.
20. It is specific contention of defendants that, site No.178 carved out in Sy.No.58/7 of Domalur Village which is nothing do that land in Sy.No.58/4 of Domalur Village which is subject matter of suit. These defendants No.2 to 4 are not claiming any manner of right, title and interest in the property bearing Sy.No.58/4 of Domalur Village.
21. On careful perusal of sale deeds as per Exs.D.1 to D.5, in these sale deeds, it is mentioned, 20 O.S.No.25663/2007 society has acquired and purchased land bearing Sy.No.57 to 82 of Domalur Village. Further it is clearly mentioned in these documents, site No.177 and 178 have been formed in Sy.No.58 to 82, situated at Domalur Village. Nowhere in these documents, it is mentioned in Sy.No.58/4 has been excluded.
22. The D.W.1 in his cross-examination has categorically admitted that, in Exs.D.1 to D.5 sale deeds, it is mentioned site No.177 and 178 are existed in Sy.No.57 to 82 of Domalur Village. When, it is clearly mentioned in sale deeds relied by defendants themselves that, sites have been formed in Sy.No.57 to 82 of Domalur Village, defendants No.2 to 4 or their vendors are estopped from contending no sites have been formed by Amarjyothi Housing Building Co- operative Society in Sy.No.58/4 belonging to plaintiffs.
23. It is pertinent to note here that, D.W.1 has claimed, site No.177 and 178 are in existence but not extended in schedule 'B' property. As already discussed, in sale deeds relied by defendants these Sy.No.57 to 82 21 O.S.No.25663/2007 of Domalur Village have been clearly mentioned in schedule to the sale deeds.
24. It is to be noted here, defendants have not produced layout map of site No.177 and 178. It is clearly stated by D.W.1 that, sanction plan or re-sanction plan pertaining to site No.178 and 177 are not produced by defendants. It is not contention of defendants that, there is no sanction or re-sanction plan in respect of site No.178.
25. The D.W.1 in his cross-examination has clearly deposed, the Amarjyothi Housing Building Co- operative Society has obtained re-sanction plan from BDA. It is further say of D.W.1 that, he has verified said document. It is also stated by D.W.1 in his cross- examination that, in case those documents are necessary, he will produce those documents before court. From evidence of D.W.1 two facts are very much clear that, fisrtly there is sanction plan issued by BDA in respect of site No. 178 and 177, secondly, said document not produced by defendants to prove their contention. It is fact that, those documents are material 22 O.S.No.25663/2007 documents to say about existence of site No.178 whether it existed in Sy.No.58/4 or in Sy.No.58/7.
26. The P.W.1 in his cross-examination has deposed, it is mentioned in layout plan that, which sites are existed in which survey numbers. It is deposed by P.W.1 that, said layout map has been produced before Hon'ble High Court in Writ Proceedings. It is stated by P.W.1 that, he obtained copy of layout map of Hon'ble High Court produced before this court.
27. On careful perusal of documents produced by plaintiffs before court, they have produced photocopy of layout plan and same is not certified copy. In complaint as per Ex.P.31 to Hon'ble Governor of Karnataka, it is mentioned copy of approved plan at Annexed -K in Writ petition No.28243/1995 produced. While cross- examining of P.W.1, it is suggested by learned counsel for defendants that, as per said layout plan, site Nos.177 and 178 are shown in Sy.No.58/4.
28. In further cross-examination of P.W.1, he has deposed, in the year 2010 he has applied BDA to issue layout plan but same was not furnished. The P.W.1 has 23 O.S.No.25663/2007 further deposed, certified copy of layout plan produced before Hon'ble High Court has not been produced in present proceedings.
29. The P.W.1 in his cross-examination has deposed, in O.S.No.5539/2007 in schedule to the plaint, he has shown, Sy.No.58/4 to an extent of 35 guntas with all necessary boundaries. Ex.P.30 is Commissioner report filed in O.S.No.5539/2007. Exs.P.16 to P.20 are the sketch pertaining to Sy.No.58/4 and 58/7 of Domalur Village.
30. Based on above mentioned documents, learned counsel for plaintiffs has argued that, the defendants have encroached portion of suit 'A' schedule property which is shown as suit 'B' schedule property and illegally put up construction over same.
31. It is pertinent to note here that, in this suit, the court commissioner, who is ADLR, South Taluk has been appointed and he filed commissioner report along with sketch. The plaintiffs and defendants have filed memo of instructions and same were forwarded to court commissioner. After filing commissioner report, both 24 O.S.No.25663/2007 plaintiffs and defendants No.2 to 4 have filed their objections to commissioner report. Thereafter, even repeated issuance of summons, court commissioner not appeared before court and tendered for cross- examination. When court commissioner not tendered for cross-examination, his report cannot be looked into.
32. In view of notification passed by Government under Section 48(1) of the Land Acquisition Act, wherein acquisition pertinent to Sy.No.58/4 was de-notified and same was confirmed by Hon'ble Supreme Court of India, same attained finality. By virtue of these orders, plaintiffs have retained their property bearing Sy.No.58/4 as owners.
33. Once, acquisition pertaining to Sy.No.58/4 has been canceled by de-notification issued by Government of Karnataka and same is confirmed by Hon'ble Supreme Court of India. Such being the facts as existed question of handing over of possession of said property to Amarjyothi Housing Building Co-operative Society does not arise.
25 O.S.No.25663/2007
34. Further it is to be noted here, there is no documents, as admitted by D.W.1 that, after order passed by Hon'ble High Court of India in Writ Appeal and order passed by Hon'ble Supreme Court in Special Leave Petition, there was sanction plan or re-sanction plan pertaining to sites formed in Sy.No.58/4 by BDA. It is safely gathered that, even though Amarjyothi Housing Building Co-operative Society is failed in all proceedings before Hon'ble High Court and Hon'ble Supreme Court and having aware that, acquisition of Sy.No.58/4 have been de-notified by Government and said order confirmed by Hon'ble High Court and Hon'ble Supreme Court illegally proceeded for formation of sites and without there being approved plan or sanction by competent authority illegally sold sites to defendant No.1.
35. In view of above made discussion, it is crystal clear, defendants No.2 to 4 just based on Exs.D.3 and D.5 cannot claim, they acquired right, title over site Nos.178 and 177 formed in Sy.No.57 to 82 of Domalur Village. When, vendor which is Amarjyothi Housing Building Co-operative Society itself has no alienable 26 O.S.No.25663/2007 right and title over these sites, question of acquiring title over these sites by defendants No.2 to 4 under sale deeds as per Exs.D.3 and D.5 does not arise.
36. Even in absence court commissioner report, as per sale deeds relied by defendants themselves it is mentioned site No.178 formed in Sy.No.58 to 82 of Domalur Village. It is not mentioned in these sale deeds, Sy.No.58/4 is excluded. As already discussed, the defendants have not produced any layout plan to show, portion of site Nos.178 and 177 not come within Sy.No.58/4 belonging to plaintiffs.
37. As commissioner report cannot be looked into, plaintiffs are is not in position to say exact extent of encroachment in 'B' schedule property. At the same time, there is material on record to say, defendants have encroached portion of schedule 'A' property and put up construction over the same. This fact is evident from photos produced by defendants as per Ex.D.18 to D.20.
38. Further, it is to be noted there, as per Exs.D.6 to D.8 site No.177 and 178 have been amalgamated and single site was formed, thereafter construction put up 27 O.S.No.25663/2007 over these sites by obtaining sanction plan. It is fact that, defendants after filing present suit have obtained orders from BDA as per Exs.D.6 to D.8 and put up building over site Nos.177 and 178 as could be seen in photos. Hence, I answer Issue No.1 partly in the affirmative, Additional issue No.1 in the affirmative, Additional issue No.4 in the affirmative, additional issue No.11 in the affirmative and additional issue No.13 in the negative.
39. ADDITIONAL ISSUE NO.2, ADDITIONAL NO.3, ADDITIONAL ISSUE NO.5 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issues, in order to avoid repetition of facts and for convenience sake, all issues are taken together for common discussion.
40. It is fact that, once acquisition of Sy.No.58/4 has been de-notified by Government order and said order passed by Government has been confirmed by Hon'ble High Court in Writ Appeal and Hon'ble Supreme Court, Amarjyothi Housing Building Co-operative 28 O.S.No.25663/2007 Society has no right or authority to form sites in said property and thereby sell sites in favour of defendant No.1. Likewise, defendant No.1 without having any right and title over site which was acquired by Amarjyothi Housing Building Co-operative Society has sold same in favour of defendants No.2 to 4. The defendants No.2 to 4 as per Exs.D.6 and D.7 amalgamated site No.177 and 178 and thereby put up construction over property as could be seen in photos.
41. When Amarjyothi Housing Building Co- operative Society has no right or interest in Sy.No.58/4 as mentioned in sale deed relied by defendants, any construction by defendants on site No.178 and 177 shall be construed as unauthorized and illegal.
42. As already discussed, there is sufficient material on records that, defendants have put up illegal construction over portion of 'A' schedule property. Taking into note of Sy.No.58/4 mentioned in sale deeds, non-production of layout plan or re-sanction plan issued by BDA and taking into note of contention of defendants their sites existed in Sy.No.57/4, it can 29 O.S.No.25663/2007 safely gathered the defendants have encroached upon suit 'A' schedule property and illegally put up construction over the same. As such, plaintiffs are entitled for mandatory injunction. Hence, I answer Additional issue No.2, 3 and 5 in the affirmative.
43. ISSUE NO.2, ISSUE NO.3, ADDITIONAL ISSUE NO.6 AND ADDITIONAL ISSUE NO.7 :- As these issues are inter-related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issues, in order to avoid repetition of facts and for convenience sake, all issues are taken together for common discussion.
44. As already discussed, defendants have no right and interest in suit 'A' schedule property. It is contention of defendants that, sites bearing No.177 and 178 formed in adjoining Sy.No.58/7. No layout plan or sanction plan in respect of Sy.No.58/7 produced by the defendants before court to establish their contention these sites are formed in Sy.No.58/7 and they are not 30 O.S.No.25663/2007 existed in Sy.No.58/4. Such contention of defendants goes against their own documents.
45. In earlier proceedings as per Ex.P22, Amarajyothi Housing Co-operative Society was restrained from interfering with plaintiffs possession and enjoyment of suit property. In said suit, Sy.No.58/4 measuring 35 guntas of Domalur village was also one of subject matter of suit. Said suit was filed in the year 1995 itself. The court having held plaintiffs therein are in possession of Sy.No.58/4 restrained Amarajyothi Housing Co-operative Society from interfering with plaintiffs possession and enjoyment of suit property.
46. As already discussed, defendants are claiming they purchased site No.178 and 177 from said Amarajyothi Housing Co-operative Society against which already injunctive order passed by court, restraining said society from interfering with plaintiffs possession and enjoyment of suit property. The defendants having purchased site No.178 and 177 from Amarajyothi Housing Co-operative Society, they cannot permitted to contend, they are in lawful possession and 31 O.S.No.25663/2007 enjoyment of site No.178 and 177 which are formed in Sy.No.57 to Sy.No.82 of Domalur village.
47. The plaintiffs have sought for permanent injunction restraining defendants from alienating suit 'B' schedule property in favour of any third persons. As already discussed, there is sufficient material on record, Amarajyothi Housing Co-operative Society without having any right or title sold site No.178 and 177 formed in portion of Sy.No.58/4 in favour of defendants. As such any sale of portion of site No.178 and 177 would definitely affect the right of plaintiffs in said Sy.No.58/4 of Domalur village.
48. The plaintiffs have sought for mesne profits from defendants at the rate of Rs.10,000/- per month from date of suit, till delivery of vacant possession of suit property to plaintiffs. It is fact that, there is no clear material placed before court what is the extent of property encroached in suit 'A' schedule property by defendants. As Court Commissioner has not tendered for cross-examination, commissioner report along with sketch which is on record cannot be considered. At the 32 O.S.No.25663/2007 same time, defendants having purchased properties from Amarjyothi Housing Building Co-operative Society which has no right and title to alienate property in favour of defendants, these defendants having put up construction over Sy.No.58/4, they are under obligation to handover vacant possession of encroached property to plaintiffs. Hence, I answer Issue No.2 and 3 in the affirmative and additional issues No.6 and 7 in the affirmative.
49. ADDITIONAL ISSUES NO.8 TO 10 AND ADDITIONAL ISSUE NO.12 :- As these issues are inter- related to each other and involves common appreciation of facts and evidence on record, findings on one issue are bearing on other issues, in order to avoid repetition of facts and for convenience sake, all issues are taken together for common discussion.
50. It is vehemently argued on behalf of learned counsel for defendants that, without seeking declaration in respect of 'A' schedule property and without mentioning exact alleged encroachment of property by defendants and without pleading specific act of 33 O.S.No.25663/2007 encroachment, very suit filed by plaintiff is not maintainable. Further it is argued that, description of 'B' schedule property is not supported by any documents. Relief is in respect of unidentified property. Totally there are 5 sale deeds in respect of site No.177 and 178. These title deeds have not been challenged.
51. It is pertinent to note here that, title of plaintiff in respect of suit 'A' schedule property has been established by Government notification under Section 48(1) of Land Acquisition Act as well as order passed by Hon'ble High Court and Hon'ble Supreme Court. Added to it, there is revenue documents which shows name of Yellappa as owner and possessor of Sy.No.58/4 in column No.9 and 12 of records of rights.
52. Amarjyothi Housing Building Co-operative Society having fully aware about order passed by Government as well as Hon'ble Superior courts and more so said society being party to those proceedings, illegally created sites and illegally sold sites formed in Sy.No.58/4 and other survey numbers to defendant No.1. In turn defendant No.1 and Ravi N. 34 O.S.No.25663/2007 Krishnamurthy sold site No.178 and 177 in favour of defendants No.2 to 4.
53. In view of above mentioned facts, when plaintiffs have got legal and valid title over suit 'A' schedule property either Amarjyothi Housing Building Co-operative Society and defendants have no better title over suit 'A' schedule property than that of plaintiffs just by virtue of Exs.D.1 to D.5. As such, plaintiffs need not to claim declaration over suit 'A' schedule property.
54. It is fact that, defendants have not produced any approved layout or sanction plan or re-sanction plan in respect of site No.177 and 178. It is not seriously disputed by defendants that, Sy. No. 58/4 and Sy.No.58/7 are adjacent to each other. When, material documents such as layout plan has not been produced before court by defendants encroachment of portion of suit 'A' schedule property which is Sy.No.58/4 to an extent of 35 guntas cannot be ruled out. This fact can be gathered from cross-examination of D.W.1.
55. The plaintiffs in schedule to the plaint mentioned as suit 'B' schedule property is an area 35 O.S.No.25663/2007 measuring 3400 square feet being portion of site No.177 and 178 formed in South Eastern portion of schedule 'A' property. As per records placed before court, it is fact that, Sy.No.57/8 is situated to Southern side of Sy.No.58/4. As per Exs.D.6 and D.7 both sides No.177 and 178 were amalgamated and thereafter defendants put up construction over those sites.
56. As defendants have purchased sites from person who has no alienable right, title and they put up construction over same by encroaching property of plaintiffs, defendants under obligation to handover vacant possession of encroached area to plaintiffs. What is encroached area can be ascertained in execution proceedings by appointing commission.
57. Once, it is proved that, plaintiffs are absolute owners of schedule 'A' property, which includes B schedule property, mere granting relief of declaration of title of plaintiffs in respect of suit 'B' property and granting injunctive order without order in respect of handing over of encroached area in total extent of suit 36 O.S.No.25663/2007 'A' schedule property by defendants would virtually amounts to paper decree.
58. In the light of peculiar facts and circumstances of case on hand, it is better to mould the relief by granting declaration to an actual extent held by plaintiffs in 'A' schedule property with liberty to recover encroached area in such total extent from defendants by seeking appointed of commission in execution proceedings would be proper.
59. It is specific contention of defendants that, suit of the plaintiff is barred by law of limitation. It is pertinent to note here that, as could be gathered from Exs.P.10 to P.12 and P.22 there were proceedings in respect of Sy.No.58/4 since 1995 up to 2007. The Amarjyothi Housing Building Co-operative Society without having any right and title over Sy.No.58/4 executed sale deed as per Exs.D.1 and D.2 when proceedings before Writ Courts were pending. The plaintiffs have established their possession over suit property and obtained injunction against Amarjyothi 37 O.S.No.25663/2007 Housing Building Co-operative Society as per decree passed in O.S.No.10719/1995 dated 18.08.02007.
60. In plaint it is specifically pleaded by plaintiffs that, on 14.03.2007 defendants No.2 to 4 have tried to interfere in plaintiffs' possession of suit property and subsequently on 22.03.2007 defendants No.2 to 4 brought construction material near suit property. Sale deeds executed in favour of defendants No.2 to 4 are during 2006-07. Taking into note of these facts, contention of defendants that, suit of plaintiffs is barred by law of limitation is not at all sustainable. Further, also contention of defendants that, there is no cause of action for plaintiffs to file present suit is also not sustainable.
61. It is vehemently argued on behalf of learned counsel for defendants that, suit is bad for non joinder of necessary parties. It is contended that, BDA as well as Amarjyothi Housing Building Co-operative Society are not made as party to suit only last purchasers, who are defendants No.1 to 4 are made as parties to the suit. 38 O.S.No.25663/2007
62. As already discussed, BDA has no right or interest in Sy.No.58/4 which is absolute property of plaintiffs. It is fact that, Amarjyothi Housing Building Co-operative Society without having any right and title over Sy.No.58/4 has formed sites, thereby illegally sold sites to defendants. As and when, BDA and Amarjyothi Housing Building Co-operative Society have no right or interest in suit properties, question of them arraying as parties to suit does not arise. Further more, it is not case of plaintiffs that, these BDA and Amarjyothi Housing Building Co-operative Society are trying to interfere in their possession and enjoyment of suit property.
63. It is rightly argued by learned counsel for defendants that, court commissioner who filed report has not entered witness box and subjected himself for cross-examination. Ex.D.30 is commissioner report filed in another suit in which present defendants are not parties. As already discussed, Sy.No.58/4 and Sy.No.58/7 wherein defendants are contending site No.177 and 178 are existed are adjacent to each other. 39 O.S.No.25663/2007 Once, Amarjyothi Housing Building Co-operative Society has no right over Sy.No.58/4, either said society or defendants herein have no right or authority to encroach upon suit 'A' schedule property. Very act of defendants in not producing layout plan or re-sanction plan issued by BDA in respect of alleged layout formed in Sy.No.57 to 82 of Domalur Village itself sufficient that, defendants have encroached portion of suit 'A' schedule property.
64. It is pertinent to note here that, it come in the evidence of P.W.1 that, 0.21 guntas of land in Sy.No.58/4 acquired by BDA for formation of Ring Road. Even in sketch as per Ex.P.16 in earlier proceedings existence of 100 feet width road shown in Sy.No.58/4 of Domalur Village. As such, plaintiffs cannot claim their ownership over entire extent of 0.35 guntas in Sy.No.58/4. The plaintiffs can claim their title and ownership over remaining extent in Sy.Ho.58/4 of Domalur Village. Hence, I answer Additional issues No.8, 9 and 12 in the negative, additional issue No.10 in the affirmative.
40 O.S.No.25663/2007
65. ISSUE No.4 :- In view of the above said findings on Issues No. 1 to 3 and additional issues No.1 to 13, I proceed to pass the following:-
ORDER The suit of the plaintiffs is hereby partly decreed with costs.
It is declared that, plaintiffs are absolute owners of suit 'A' schedule property bearing Sy.No.58/4 of Domalur Village, excluding an extent of property, which is already acquired by BDA for formation of Ring Road.
The defendants, their men, agents, servants or anybody claiming under them are hereby restrained by way of permanent injunction from alienating suit schedule property in favour of any 3rd persons by way of sale, gift, lease and mortgage.
The defendants No.2 to 4 are directed by way of mandatory injunction to handover vacant possession of encroached area in Sy.No.58/4 to the plaintiffs.41 O.S.No.25663/2007
The plaintiffs have to file Execution Petition based on present decree and to seek appointment of commission to ascertain an extent of encroachment of property by defendants No.2 to 4 in Sy.No.58/4 of Domalur Village and thereafter get vacant possession of encroached area from defendants No.2 to 4 by following due procedure known to law.
In respect of mesne profits as prayed by plaintiffs from defendants No.2 to 4 in respect of use and occupation of encroached area in Sy.No.58/4, there shall be separate enquiry as provided under Order XX Rule 12 of CPC.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, typed & computerized by her, corrected and signed by me and then pronounced in the open Court on this the 4th day of March, 2026).
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru. 42 O.S.No.25663/2007 ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:-
Examined on:
P.W.1 : Murali S. 17-04-2013.
2. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFF:-
Exs.P.1 : Certified copy of 4 Gazette notification and to P.5 award copy.
Ex.P.6 : Certified copy of mutation register. Ex.P.7 : Copy of I.H.C. Register in the year 1994-95. Ex.P.8 : Copy of pahani.
Ex.P.9 : Copy of police complaint dated 8.8.1995. Ex.P.10 : Certified copy of petition in Writ Petition No.28243/1995 Ex.P.11 : Certified copy of judgment in Writ Appeal No.5695/1996.
Ex.P.12 : Certified copy of order in SLP.No.7212/98. Exs.P.13: RTC.
and P.14 Ex.P.15 : Mutation Entry.
Exs.P.16: Copy of Survey sketch, Atlas, RTC book. to P.19 Ex.P.20 : Copy sketch.
Ex.P.21 : Receipt.
Exs.P.22: Certified copy of judgment and decree and P.23 in O.S.No.10719/1995.
Ex.P.24 : 7 photos.
Ex.P.25 : Receipts.
Ex.P.26 : Negative and CD 24(a) and 24(b), police complaint.43 O.S.No.25663/2007
Exs.P.27: Police endorsement.
and P.28 Ex.P.29 : General Power of Attorney. Ex.P.30 : Commissioner report.
Ex.P.31 : Copy of complaint dated 25.04.2008. Ex.P.32 : Copy of encumbrance certificate.
3.LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:-
Examined on:
D.W.1 : Hussain Shariff 13-01-2016
4.LIST OF DOCUMENTS MARKED FOR THE DEFENDANT:-
Ex.D.1 : certified copy of sale deed dated 1.1.1993. Ex.D.2 : certified copy of sale deed dated 6.5.1991. Ex.D.3 :certified copy of sale deed dated 29.12.2006. Ex.D.4 :certified copy of sale deed dated 24.11.1999. Ex.D.5 : certified copy of sale deed dated 26.4.2007. Ex.D.6 : order passed by BDA dated 15.12.2007. Ex.D.7 : order passed by BBMP dated 19.1.2008. Ex.D.8 : order passed by BDA dated 10.12.2007. Ex.D.9 : Approved sketch.
Ex.D.10 : Copy of allotment certificate. Ex.D.11 : Copy of records book.
Ex.D.12 : Copy of sketch.
Ex.D.13 : Letter dated 12.03.2008. Ex.D.14 : Notice issued by BBMP dated 25.03.2008. Ex.D.15 : Reply dated 14.06.2007. 44 O.S.No.25663/2007 Exs.D.16 : Tax paid receipts.
and D.17 Exs.D.18 : Photographs.
to D.20 Ex.D.21 : CD.
(BALAPPA APPANNA JARAGU) XXVIII Additional City Civil and Sessions Judge, Mayohall, Bengaluru.