Bangalore District Court
Sri.D.Harish vs Smt.B.A.Indiramma on 11 June, 2021
1 O.S.6869/2010
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 11 th DAY OF JUNE, 2021.
PRESIDING OFFICER
PRESENT : Sri.Mohan Prabhu,
M.A., L.LM.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.6869/2010
PLAINTIFF/S: Sri.D.Harish
S/o late R.Dasappa,
Aged about 35 years,
R/at 11, 11 th cross,
Panchala Siddappa Lane,
Cottonpet,
Bangalore - 560 053.
(By Sri.DS, Advocate)
Vs.
DEFENDANT/S: Smt.B.A.Indiramma,
W/o late M.Venkata Reddy,
Aged about 55 years,
R/at No. 13, 11 th cross,
Shankarapuram,
Bangalore - 560 004.
(By Sri.GRS, Advocate)
2 O.S.6869/2010
* * * * *
Date of institution of suit : 28.09.2010
Nature of suit : Injunction &
possession
Date of commencement
of recording of evidence : 02.01.2012
Date on which the judgment
was pronounced : 11.06.2021
Duration of the suit :Year/s Month/s Day/s
10 08 14
JUDGMENT
1. The plaintiff has filed this suit against the defendant praying to pass an order of mandatory injunction directing the defendant to demolish all the constructions in the schedule 'C' property and to handover the vacant possession of the schedule 'C' property to the plaintiff and to restrain the defendant and persons claiming under her from interfering with 3 O.S.6869/2010 the possession and enjoyment of the plaintiff in reference to the schedule 'A' property and for cost.
2. Schedule 'A' property is the property bearing No. 11, old No. 2 (C.S.No.44) at 2 nd cross, Panchala Siddappa Lane, Cottonpet, Bangalore - 560 053 measuring east to west: 34 feet and north to south:
26 feet 0.6 inches bounded towards east by property bearing No. 469 owned by Smt.Indramma, the defendant herein and Noor Ahmed property bearing No.1 of OTC road, west by road, north by Conservancy Lane and thereafter property presently owned by Gangadarasa, south by property owned by Abdul Waheb Saheb presently owned by Ramusa.
3. The suit schedule 'B' property is portion of schedule 'A' property measuring east to west: 29' 6'' and north to south: 26' 6'' bounded on the east by 4 O.S.6869/2010 portion of schedule 'A' property, west by road, north by Conservancy lane and thereafter property presently owned by Gangadarasa, south by property owned by Abdul Waheb Saheb presently owned by Ramusa.
4. The suit schedule 'C' property is portion of schedule 'A' property measuring east to west 4' 6'' and north to south 26' 6'' and bounded towards east by property bearing No. 469 owned by Smt.Indramma, defendant herein and Noor Ahmed property No. 1, west by schedule 'B' property, north by Conservancy land and thereafter property presently owned by Gangadarasa, south by property owned by Abdul Waheb Saheb presently owned by Ramusa.
5 O.S.6869/2010
5. The summary of the plaint averments is as under:
Sri.R.Dasappa the father of the plaintiff was the owner of property bearing old No. 2, new No.11, C.S.No.44, situated at 11 th cross, Panchala Siddappa lane, Bangalore, measuring east to west 34 feet and north to south 26 feet 6 inches having purchased the same from Meharunnissa under registered sale deed dated 19.7.1971. This property is shown as suit schedule 'A' property. Since R.Dasappa was in shortage of funds to purchase the schedule 'A' property and hence on the same day on 19.7.1971 he borrowed certain amount from H.V.Srikant Shastry and executed a nominal sale deed in his favour. Since the said sale deed was nominal and with condition to reconvey the property on receipt of the 6 O.S.6869/2010 amount borrowed even after the execution of the said sale deed the said R.Dasappa was in possession and enjoyment of the schedule 'A' property. R.Dasappa died intestate leaving D.Mudduramaiah, D.Padmanabhaiah (sons by his 1 st wife), his 2 nd wife Smt.Lalithamma, D.Harish (plaintiff herein) and Smt.D.Gowramma (the son and daughter by 2 nd wife) to succeed to his estate. After the death of R.Dasappa his legal heirs had filed suit against V.Srikant Shastry for declaring the sale deed dated 19.7.1971 executed by R.Dasappa in favour of H.V.Srikant Shastry as mortgage deed. During the pendency of the said suit the matter was settled and as per the said settlement the said H.V.Srikant Shastry executed registered Reconvey Deed (sale deed) dated 27.6.1986 in favour of legal heirs of R.Dasappa. Thereafter partition took place between 7 O.S.6869/2010 the legal representatives of deceased R.Dasappa vide registered partition deed dated 20.2.1992. In the said partition the schedule 'A' property was allotted to the share of Smt.Lalithamma, her son D.Harish (plaintiff herein) and her daughter Smt.D.Gowramma and they were put in possession of the schedule 'A' property. Thereafter the Khatha of the schedule 'A' property was transferred to the name of Smt.Lalithamma. Smt.D.Gowramma sister of the plaintiff has released and relinquished her 1/3rd share (right, title and interest) in the schedule 'A' property in favour of the plaintiff. Thereafter Smt.Lalithamma, the mother of the plaintiff by registered gift deed dated 25.8.2004 has conveyed her 1/3rd share, right, title and interest in the schedule 'A' property to the plaintiff. Hence the plaintiff is the absolute owner of the schedule 'A' 8 O.S.6869/2010 property. The plaintiff has obtained Khatha in his name and paying tax.
6. The building in the said schedule 'A' property was very old and it had collapsed in the year 1986 and from the year 1986 to 2007 the said property was the vacant property (site). The plaintiff proposed to construct building in the 'A' schedule property. Hence he required to ascertain the exact measurement of the same. Hence he obtained map from the office of JDLR. But to his surprise in the map measurement was shown as east to west 9 meters, i.e., 29' 6'' instead of 10.36 meters, i.e., 34 feet. That for construction of building as the plaintiff had obtained loan from the bank having no other alternative he has constructed building consisting of ground floor only measuring east to 9 O.S.6869/2010 west 9 meters, i.e., 29 feet 6 inches and north to south 8.02 meters, i.e., 26 feet 6 inches. By letter dated 17.3.2008 the plaintiff requested the Deputy Director, Land Records to inspect the property to fix the boundaries and to locate the difference area of 4' 6'' x 26' 6''. That after inspecting the property the authority by letter dated 28.7.2008 informed the plaintiff that the property C.S.No.44 (property bearing No. 11, old No. 2) which he is in possession is in accordance with the sketch prepared on 10.10.1975 and further the difference of land measuring 4' 6'' x 26' 6'' is included in property No. 469, C.S.No.47 (which is now owned by the defendant). Thereafter the plaintiff on 7.11.2008 has again gave representation to the Joint Director of the Land Records explaining all the facts and furnishing of the title deeds and other documents. That as the 10 O.S.6869/2010 representation was not in accordance with required form the Joint Director by letter dated 4.4.2009 has directed the plaintiff to file revision as per KLR Act 1964. Hence the plaintiff has filed revision before the Joint Director of Land Records vide Revision No. 9/2010 and for the technical reasons i.e., as the authority has held that the revision is filed after the limitation period has dismissed the same. The plaintiff herein is taking necessary legal steps to set side the said order. Thereafter on 25.4.2009 the plaintiff has obtained the inspection report dated 16.6.2008, sketch (map) alleged to have prepared on the report dated 10.10.1975. The schedule 'A' property is bounded on eastern side by property No. 469 (C.S.No.47) and is now owned by defendant. Earlier to 2000-2001 in the said property (C.S.No.47) there was the old building constructed long ago 11 O.S.6869/2010 leaving 3 feet passage in the said property towards suit property (now owned by the plaintiff). That the defendant in the year 2000-2001 has constructed the building consisting of ground, 1 st , 2 nd floor in the said property. In the objection statement filed by her in the revision petition the defendant has stated that in the year 2000 vide L.P.No.121/1999-2000 dated 30.5.2000 she has obtained plan sanction from Bangalore City Corporation and has constructed building. That while constructing the said new building the defendant has not left any passage in her property. She has constructed building in the entire property including the said 3 feet passage also. Further while constructing the building the defendant has constructed one pillar, portion of the staircase and sajjas of the windows projecting into vacant place in the eastern side of schedule 'A' property and 12 O.S.6869/2010 further to store the building construction materials the defendant has constructed a cement sheet roofed sheet in the eastern portion of schedule 'A' property. After receiving the letter dated 28.7.2008 from the Deputy Director of Land Records, the plaintiff fully confirmed that the defendant has constructed the said sajjas and the said cement sheet roofed shed by encroaching upon schedule 'A' property to the extent of 4' 6'' x 26' 6'' property. Thereafter, the plaintiff has demanded the defendant to remove the encroachment and to deliver the possession of that portion of his property. But the defendant even though had agreed to do so now has refused to remove the said encroachment. The plaintiff is in possession and enjoyment of suit schedule 'B' property, which is portion of schedule 'A' property. Further the portion of schedule 'A' property 13 O.S.6869/2010 measuring 4' 6'' x 26' 6'' which is encroached by the defendant is detailed in schedule 'C' of the plaint. The plaintiff has laid sanitary pipes in the schedule property just adjacent to the building constructed by him which leads to the conservancy lane. In the month of June 2008, the property owned by the plaintiff, i.e., schedule 'A' property and property bearing No.469 owned by the defendant were inspected and measured by the Land Records City Survey Office and it was confirmed that the defendant has encroached portion of the schedule 'A' property which is detailed and referred to as schedule 'C' property in the suit. Inspite of repeated demands of the plaintiff till this date the defendant has not demolished the construction in schedule 'C' property and has failed to deliver the vacant possession of the same to the plaintiff. In the 14 O.S.6869/2010 1 st week of January 2010, finally the plaintiff has met the defendant and demanded to remove the construction in the schedule 'C' property. But to the surprise of the plaintiff, the defendant has refused to remove the construction in the schedule 'C' property and has claimed that the same belongs to her. Hence, the plaintiff has filed this suit.
7. The defendant has entered appearance by engaging counsel and resisted the claim of the plaintiff by filing her written statement which is briefly stated as follows:
She has denied the contention of the plaintiff that he is the absolute owner of the suit schedule 'A' property. She has pleaded her unawareness regarding the death of father of the plaintiff and his successors. She pleaded her unawareness about the 15 O.S.6869/2010 partition among the legal representatives of the deceased. The contention of the plaintiff is that there exists old building in the suit schedule property and the same was collapsed in the year 1986 and from the year 1986 to 2007 the said property was a vacant property are denied as false. The contention of the plaintiff is that while he was constructing the building in order to know the exact measurement of the property he obtained map from the office of JDLR and found that the property measurement shown as east to west 9 meters, i.e., 29.06 feet instead of 10.36 meters, i.e., 34 feet are all denied as false. The contention of the plaintiff is that since he has obtained loan from the bank having no other alternative, he has constructed the building in the measurement east to west 9 meters, i.e., 29.06 feet and north to south 8.02 meters , i.e., 26.06 feet are 16 O.S.6869/2010 denied as false. It is contended that the plaintiff has already constructed the building in his property in the year 2007 after obtaining the sanction plan from the BBMP. But the plaintiff by suppressing the material facts trying to mislead this court. The plaintiff has challenged the order passed by the Enquiry Officer, City Survey K.R.Circle, Bangalore dated 10.10.1972 pertaining to the property Municipal No. 11. The said order was passed by the Enquiry Officer after issuing notice to the owners of adjoining property including the father of the plaintiff R.Dasappa, who is the owner of the property bearing No. 2 (Municipal No. 11) situated at 11 th cross, Panchala Siddappa Lane, Cottonpet, Bangalore and equated the title deeds and documents and afterwards the Enquiry Officer, City Survey measuring the properties fixing the boundaries and to that effect 17 O.S.6869/2010 Enquiry Officer, City Survey passed order on 10.10.1972. After passing the said order, the said Enquiry Officer has issued form No.9 showing the measurement of the respective properties in the said notice itself and measurement of the sites were shown and the said document was issued by the Assistant Director of Land Records, City Survey, K.R.Circle, Bangalore. From the date of the said survey nobody including the father of the plaintiff Dasappa have not raised any objections or not challenged the order passed by the enquiry officer which clearly establishes that the survey conducted by ADLR, City Survey is proper in the said document. The ADLR has fixed boundaries of the plaintiff as well as defendant. Now after lapse of nearly four decades the plaintiff has raised the dispute pertaining to the measurement of his 18 O.S.6869/2010 property. The plaintiff has constructed the building in their property completely and there is no variation pertaining to the measurement of the sites and there is no encroachment by adjacent owners of the property including the defendant. The Revision Petition No.9/2009-10 filed by the plaintiff before the JDLR City Survey south zone, Bangalore regarding the boundaries fixed by the Enquiry Officer, City Survey dated 10.10.1972 came to be dismissed on 5.8.2010. After dismissal of the said revision petition the plaintiff has not challenged the said order instead of that the plaintiff has filed the present suit with malafide intention of harassing this defendant and for wrongful gains.
8. The grand father of the defendant B.M.Munishamappa purchased the said property 19 O.S.6869/2010 bearing house No. 579 and 580 (old) and Nos. 665 and 666 (new) from one Vijayarangam Naidu by way of sale deed dated 16.4.1942. From the date of said purchase the grand father of the defendant namely B.M.Muniswamy was enjoying the same and there afterwards the same was fallen to the share of this defendants father by way of partition held between their family members in O.S.No.1748/92. Prior to inheritance of the share of this defendant their property belongs to the father of defendant namely B.M.Appa Reddy. At that time said B.M.Appa Reddy has sold house No. 579 (old) No.665 present number 470 to one C.Narayanaswamy on 8.4.1948 and retained the property house No. 580 (old) then No. 666, now No. 469. The said property i.e., old No. 580, new No. 666, now No. 469 is inherited by the defendant. The defendant has obtained the sanction 20 O.S.6869/2010 plan from the Bangalore City Corporation. At the time of sanction plan, the Bangalore City Corporation has verified the document produced by the defendant, conducted spot mahazar and then sanctioned the plan on 30.5.2000 vide L.P.No.121/1999-2000 by the Assistant Executive Engineer, Bangalore City Corporation, Gandhi Nagar, Bangalore. On the basis of the said sanction plan this defendant has constructed the building and from the date the defendant was enjoying the said property without any hindrance from anybody including this plaintiff and the same is being let out to the tenants. The father of the plaintiff executed several sale deeds in favour of some of the persons in the year 1971-72, 1992 and also in the year 2004. Upto this date nobody have questioned including the plaintiff regarding the measurement of the property 21 O.S.6869/2010 of the plaintiff and the defendant which reveals that the plaintiff intentionally filed this frivolous suit for wrongful gains. The defendant has not encroached any inch of the property of the plaintiff. The plaintiff has fully constructed the building in his property. The averments of the plaintiff that there is difference of land measuring 4.6 x 26.6 feet which is included in property No. 469, C.S.No.47 which is now owned by the defendant is false. The plaintiff without availing the alternative remedy by filing appeal against order passed by JDLR has filed the present suit which is not maintainable. It is admitted that the property of the defendant is situated towards the eastern side of the plaintiff property. The contention of the plaintiff that earlier to 2000-2001 in the said property C.S.No.47 there was an old building constructed long ago leaving 3 22 O.S.6869/2010 feet passage in the said property are denied as false. It is admitted that the defendant in the year 2000- 2001 has constructed the building in her property after obtaining the sanction plan from BBMP. After completion of the said building, the same has been let out to the tenants and the defendant is enjoying the same. The contention of the plaintiff that while constructing the building the defendant has not left any passage in her property is denied as false. The contention of the plaintiff is that the defendant has constructed one pillar portion of the staircase and sajjas of the windows by encroaching the eastern portion of schedule 'A' property and constructed the cement sheet roofed shed on the eastern portion of schedule 'A' property is denied as false. The defendant has not encroached any of the adjacent properties including the property of the plaintiff. 23 O.S.6869/2010 The defendant has constructed the building in her own property. The plaintiff has not paid proper court fee as per the Karnataka Court Fee and Suit Valuation Act. Hence on these grounds, the defendant prayed for dismissal of the suit.
3. Based on the pleadings of the parties the following issues have been framed :
(1) Whether the plaintiff proves that he is the owner of the suit schedule 'A' property ?
(2) Whether plaintiff proves that defendant has encroached upon suit schedule 'C' property ?
(3) Whether plaintiff proves that defendant has constructed in the 3 feet passage and constructed one pillar, portion of the staircase and sajjas projecting 24 O.S.6869/2010 into vacant place in the eastern side of schedule 'A' property ?
(4) Whether defendant proves that suit is liable to be dismissed as stated in para 13 of the written statement ?
(5) Whether suit is properly valued and court fee paid is sufficient ?
(6) Whether plaintiff is entitled to the reliefs sought for ?
(7) What order or decree ?
6. In order to prove the case of the plaintiff the plaintiff examined himself as PW1 and the documents Ex.P1 to Ex.P30 are marked on the side of the plaintiff. On the side of the defendants, SPA holder of the defendant examined as DW1 and the documents Ex.D1 to Ex.D9 are marked on the side of the defendant.25 O.S.6869/2010
7. I have heard the arguments on the side of the learned counsel for the plaintiff and the learned counsel for the defendant.
8. My findings to the above issues are as under:
Issue No.1: Partly in the Affirmative
Issue No.2: In the Negative
Issue No.3: In the Negative
Issue No.4: In the Negative
Issue No.5: In the Affirmative
Issue No.6: In the Negative
Issue No.7: As per the final order
for the following:
REASONS
9. Issue No.1 to 3: All these issues are taken up
together for discussion, for the sake of convenience 26 O.S.6869/2010 and in order to avoid repetition of facts and evidence.
10. This being a suit filed by the plaintiff contending that he is the absolute owner of 'A' suit schedule property and for the relief of recovery of possession by mandatory injunction to direct the defendant to demolish all the construction in schedule C property, expectedly lot of burden lies on the plaintiff to prove his unimpeachable ownership over the suit schedule property including its measurement and the extent, then only he can think of having possession of the suit schedule 'C' property. The plaintiff not only shall prove that he is the absolute owner of suit A schedule property, but also shall prove that suit C Schedule property is part and 27 O.S.6869/2010 parcel of 'A' Schedule property, which encroached by the defendant and constructed the building thereon.
11. In this suit, the plaintiff, who has examined as PW1 in his affidavit filed for examination-in-chief has reiterated the plaint averments. Since the examination-in-chief of PW1 is the replica of plaint averments, it need not be reproduced once again. The document Ex.P.1 to Ex.P.30 are marked on the side of the plaintiff. PW1 has deposed that he is the absolute owner of the 'A' Schedule property measuring east to west: 34 feet and north to south:
26.6 feet. He has deposed that the defendant has constructed sajja's of window, staircase and cement sheet roof shed by encroaching upon schedule 'A' property to the extent of 4'6" X 26'6" towards eastern side, which is described as 'C' Schedule 28 O.S.6869/2010 property. PW1 has deposed that there was a old building in the 'A' Schedule property, which was collapsed in the year 1986, hence from the year 1986 to 2007, the said property was remained as vacant site. He states that he is in possession and enjoyment of the property measuring 29'6" X 26'6"
in the schedule 'A' property and this portion is detailed in the Schedule 'B' of the plaint. PW1 has deposed that towards eastern side of the 'A' Schedule property the property owned by the defendant bearing No.469(CS No.47) is in existence. Earlier to 2000-2001 in the said property, CS No.47 there was an old building constructed long back leaving 3' passage in the said property towards suit property. In the year 2000-01, the defendant has constructed the building consisting of ground, first and second floor in the said property. He has deposed that in 29 O.S.6869/2010 the objection statement filed by the defendant in the Revision Petition No.9/2010, she has stated that in the year 2000 vide LP.No.121/1999-2000 dated 30.05.2000 she has obtained plan sanctioned from Bengaluru City Corporation and has constructed the building. He has deposed that he after receiving the letter dated 28.7.2008 from the Deputy Director of Land Records he fully confirmed that the defendant has constructed sajjas, staircase and cement sheet roofed shed by encroaching upon Schedule 'A' property to the extent of 4'6" X 26'6", which is Schedule 'C' property. In this suit, the plaintiff has produced and got marked the documents such as, Ex.P.1 - copy of letter dated 17.03.2008 sent to the survey department. Ex.P.2 is postal receipt. Ex.P.3 is postal acknowledgment for having sent and served the said letter. He has produced the document 30 O.S.6869/2010 Ex.P.4 - endorsement given by the survey authorities in response to the notice Ex.P.1. The document Ex.P.5 is the endorsement dated 08.08.2008 issued by the survey authorities, wherein, they have stated that the clarification of shortage of land, which is sought by the plaintiff is included in Cs.No.44 and 47 as per enquiry report dated 10.10.1975 and 24.10.1975. The plaintiff has produced document Ex.P6 letter dated 07.11.2008 issued to the Joint Director of Survey Settlement and Land Records Department. Ex.P.7 and P.8 are the postal receipt and postal acknowledgement relating to the document Ex.P.6. The document Ex.P.9 is the endorsement dated 04.04.2009 issued by the JDLR. Ex.P.10 is the PT Sheet in respect of properties CS.No.42 to 51. Ex.P.11 is the copy of Inspection Report with respect to the property bearing CS No.44 and 47. Ex.P.12 is 31 O.S.6869/2010 the copy of statement dated 16.06.2008 given by the plaintiff. Ex.P.13 is the certified copy of the order passed by the Hon'ble High Court of Karnataka in WP.No.10811/2011(KLR RES); Ex.P.14 is the hand sketch map prepared by the plaintiff. Ex.P.15 is the sale deed dated 19.07.1971 executed by Mehrunissa in favour of plaintiff's father - R.Dasappa in respect of property bearing No.11 i.e. suit schedule property. Ex.P.16 is sale deed executed by plaintiff's father in favour of H.V.Srikantashastry. Ex.P.17 is the sale deed dated 27.06.1986 executed by Sri.H.V.Srikantashastry in favour of family members of plaintiff. Ex.P.18 is the partition deed dated 20.02.1992 entered among the family members of plaintiff. Ex.P.19 is the gift deed executed by Smt.D.Lalithamma in favour of the plaintiff. Ex.P.20 is the settlement, which are marked through DW1. 32 O.S.6869/2010 Ex.P.21 and P.22 are the endorsements given by BBMP under RTI. Ex.P.23 is the sale deed dated 26.03.1940 executed by C.K.Rangaswamy Naidu in favour of Budansab. Ex.P.24 is the gift deed dated
12.02.1957 executed by Budansab in favour of his wife Smt.Aiyathbi. Ex.P.25 is the sale deed dated 18.05.1957 executed by Aiyathbi in favour of Gafur Saheb. Ex.P.26 is sale deed dated 10.06.1959 executed by Gafur Saheb in favour of Mehrunissa. Ex.P27 is the information given to the plaintiff under RTI. Ex.P28 to 30 are the documents obtained under RTI, i.e., copy of preliminary decree in O.S.No.15/1948-49, copy of Arbitration award and copy of decree passed in O.S.No.15/1948-49. The plaintiff by relying upon all these documents Ex.P.15 to P.19, Ex.P.23 to P.26 would contend that the plaintiff's suit schedule property measuring east to 33 O.S.6869/2010 west: 34' and north to south: 26'6". The plaintiff by contending that he is the absolute owner of 'A' Schedule property contended that the defendant has encroached Schedule 'C' property measuring east to west: 4'6" and north to south: 26'6".
12. On the other hand, the defendant has taken contention that she has not encroached any of the adjacent property including the property belongs to the plaintiff. It is the contention of the defendant is that she has constructed the building in her property bearing No.469 by obtaining sanction plan from the Bengaluru City Corporation. At the time of sanction plan, the Bengaluru City Corporation has verified the documents produced by the defendant and conducted the spot inspection and prepared mahazar and thereafter, they have sanctioned the plan on 34 O.S.6869/2010 30.05.2000 vide LP.No.121/1999-2000. On the basis of said sanction plan, the defendant has constructed the building and enjoying the said property without any hindrance from anybody including the plaintiff. It is the contention of the defendant is that her grand father - B.M.Munishamappa purchased two properties, property bearing No.579 and 580 from one Vijayarangam Naidu under sale deed dated 16.04.1942. It is the contention of defendant is that the said property was fallen to the share of the defendant's father by way of partition held between their family members. Out of these two properties Sri.B.M.Appa Reddy has sold House No.579 and 665 to one Narayanaswamy on 08.04.1948 and retained the property House No.580(Old Number), New No.469. This property bearing No.469 is inherited by the defendant and she after obtaining the sanction 35 O.S.6869/2010 plan from the Bengaluru City Corporation has constructed the building in her property. On the side of the defendant, her son Manjunath, who is PA holder of defendant examined himself as DW1 and documents Ex.D.1 to D.9 are marked through him.
13. DW1 in his examination-in-chief affidavit has reiterated the written statement contentions. Ex.D.1 is special power of attorney. Ex.D.2 is certified copy of preliminary decree in OS.No.15/1948-49. Ex.D.3 is the certified copy of interim report submitted by the Arbitrator in OS.15/1948-49. Ex.D.4 is the khatha extract of Site No.469. Ex.D.5 is the copy of khatha certificate of site No.469. Ex.D.6 is the sanction plan issued by the BBMP. Ex.D.7 is the original site plan. Ex.D.8 is the survey sketch issued by the ADLR. Ex.D.9 is the certified copy of field 36 O.S.6869/2010 book of detail mapping in respect of property No.469 are all marked through DW1.
14. During the course of cross-examination of PW1, he has admitted the suggestion that till 2004, suit property was in their possession without any interference. He has admitted the suggestion that as per Ex.P.10 City Survey Authorities had measured the suit schedule property, fixed its boundaries and also of the adjacent properties and prepared this sketch. He has admitted the suggestion that towards the west of the property No.44 and 45 there exist road. He has admitted the suggestion that after purchasing the property, his father had not challenged the sketch Ex.P.10. He has deposed that it might be true that CTS authorities have prepared the sketch Ex.P.10 measuring not only their property, but all other 37 O.S.6869/2010 properties of which the numbers are mentioned therein. He has admitted the suggestion that to the east of their property, there exist property No.47. He states that the property No.50 is also existing towards east of his property. He has admitted the suggestion that there exist a conservancy lane towards a northern side of his property. He admits that the passage comes upto the conservancy lane. He has admitted the suggestion that after the property was purchased by his father, CT Survey authorities after surveying it, have given the report, which is at Ex.P.10. He states that they have constructed the building in the suit schedule property in the year 2006. He admits that earlier there was an old house in the suit schedule property. PW1 in his further cross-examination dated 22.06.2013 has deposed that they were constructed the house in the 38 O.S.6869/2010 suit schedule property in the year 2008. He admitted the suggestion that at the time of demolishing the old building and construction of new building, they did not bother to measure their property. He has admitted the suggestion that in Ex.P.14 - rough sketch prepared by him, he has not mentioned the measurement of PS Lane and OTC Road. He has also not mentioned the measurement of adjoining sites. He admits the suggestion that the measurement shown in Ex.P.10 and Ex.P.14 does not tally each other. He admitted the suggestion that their petition challenging the correctness of Ex.P.10 was rejected. He admitted the suggestion that prior to he constructed the building in the year 2008, the defendant had constructed the building in the year 2002. PW1 has also admitted the suggestion that either he himself or his father were not raised any 39 O.S.6869/2010 objections when the defendant was constructing the building. PW1 has deposed that there is a BBMP road towards the western side of his property. He states that except survey conducted in the year 1975, no survey has conducted in their area. He has denied the suggestion that the measurement shown in Ex.P.10 is correct and the defendant has not encroached any portion of his property. He has admitted the suggestion that the owners of the property, which is mentioned in Ex.P.23 to P.26 were never objected with the defendant regarding the extent of properties. He has denied all other suggestions made to him.
15. During the course of cross-examination of DW1, he has deposed that the suit schedule property measures east to west: 26' and north to south: 30'. 40 O.S.6869/2010 He has deposed that his mother's property totally measures 1526 sq.ft. In this property, there exists building consisting of ground, first and second floor, which was constructed in the year 2000. This building spread in the extent of 1000 sq.ft. He has deposed that his mother is only legal heir of her grand father Appa Reddy. Hence, the property in CTS No.47 came to her. He has admitted the suggestion that in Ex.D.4 - khatha extract, the measurement of site and building is not mentioned. DW1 has denied the suggestion that while constructing the building in the year 2000, the defendant has encroached the property measuring 4 ½ ' and 26 ½ ' belongs to the plaintiff.
16. The learned counsel for the plaintiff argued that in order to show the total extent of the land belongs 41 O.S.6869/2010 to the plaintiff, which measures east to west: 34' and north to south: 26'6", the plaintiff has produced the original title deeds, which are marked at Ex.P.15 to P.19 and Ex.P.23 to P.26. He argued that in the document Ex.P.10 and P.11 the measurements are wrongly mentioned. He argued that the documents Ex.P.5 is sufficient to hold that the defendant has encroached property measuring 4'6" x 26'6" belongs to the plaintiff. He argued that the defendant has not produced any documents to show the actual measurement of property belongs to the defendant. He argued that the title of the property belongs to the plaintiff traced from 1940 till this date and all these documents are registered deeds. In all these documents, measurement of the property is sown as east to west: 34' and north to suit: 26'6". He argued that now the plaintiff is in possession of the 42 O.S.6869/2010 property is measuring east: west: 29'6" and north to south: 26'6" instead of east to west: 34' and north to south: 26'6", that itself indicates that the defendant has encroached the property measuring 4'6" x 26'6"
belongs to plaintiff. He argued that the defendant has not said regarding actual measurement of property belongs to her. The defendant has not produced the sale deed dated 08.04.1948 claimed by her. The defendant has not produced any document of title to show the actual measurement of her property and to show what is the measurement of property, which her father was sold and what was the measurement of the property he retained. He argued that even though the plaintiff has filed the application under RTI, the BBMP authorities have failed to supply the documents to show the actual measurement of the property belongs to the 43 O.S.6869/2010 defendant. He argued that in none of the documents produced by the defendant, the measurement is shown. He argued that the plaintiff has produced the document - Ex.P.5 to show that the defendant has encroached the property belongs to plaintiff. He relied upon the decision reported in 2020(2) Kar.L.J. 465 (Sri.Javaraiah @ Kulllaiah (since dead by LRs) vs. Lakshminarayana).
17. On the other hand, the learned counsel for the defendant argued that in this suit, the plaintiff has not produced single document to show that the defendant has encroached property measuring east to west: 4'6" and north to south: 26'6" belongs to the plaintiff. He argued that the defendant has constructed the building in her property in the year 2000 itself by obtaining the sanction plan and the 44 O.S.6869/2010 said construction was much earlier to the construction made by the plaintiff. He argued that the plaintiff by constructing the building in his entire property has filed this suit in the year 2010 only in order to harass the defendant. He argued that the City Survey conducted the survey in the year 1972 itself and prepared the sketch as per Ex.P.10. The plaintiff even though challenged the said document Ex.P.10 has failed in Revision Petition and also failed in Writ Petition filed before Hon'ble High Court of Karnataka.
18. He argued that the plaintiff has not produced any material to show that the defendant has encroached 'C' schedule property. He submitted that the plaintiff by relying upon old documents such as sale deed claiming that his property measurement is 45 O.S.6869/2010 east to west 34 feet and north to south 26'6'' . He submitted that the document Ex.D7 sketch / plan is very old document of the year 1955. Ex.D9 is the document issued by the ADLR in respect of the property bearing No. 469 which also contains the sketch. He argued that PW1 in his cross-examination admitted that till 2004 there was no interference. He submitted that the defendant had constructed the building in her property by obtaining the sanction plan in the year 2000 itself. He submitted that PW1 in his cross-examination has admitted that CTS authorities have measured the property. He submitted that the document Ex.P10 City Survey Sketch has remained unchallenged. Even in Ex.P5 there is clear mention that there is no encroachment. He argued that the document Ex.P11 sketch is also tallies with the measurement of the property of the 46 O.S.6869/2010 plaintiff. He submitted that on the basis of Ex.P14 self made sketch it cannot be said that the defendant had encroached 'C' schedule property. He submitted that the defendant has produced the document Ex.D6 approved plan to show that she has constructed the building in her property. He submitted that the plaintiff who approached this court by contending that he has constructed the building in the less extent has not produced any building permission to show that he has constructed the building after obtaining necessary permission from the concerned authorities. He argued that in this suit the plaintiff has not clearly stated when or in which year the alleged encroachment was made. He has relied upon the decision reported in AIR 2009 SC 2966 T.K.Mohammad Abu Bakkar (D) through LRs and others Vs. P.S.M.Ahmad Abdul Khader and others to 47 O.S.6869/2010 contend that in a suit for declaration of title and possession - burden of proof is on plaintiffs to make out his title and entitlement to possession - he cannot succeed on any alleged weakness in title or possession of defendant.
19. I have appreciated the rival contentions taken by the parties. In this suit the plaintiff shall not only to prove that the suit property bearing No. 11, old No. 2 CTS No.44, is / was measuring east to west 34 feet and north to south 26'6'' but also shall prove that the plaintiff and his predecessors-in-title were in the possession of entire property measuring east to west 34 feet and north to south 26'6''. Thus in addition to proving his title lot of burden is on the plaintiff to show that he and his predecessor-in- title were in possession of property in C.S No.44 48 O.S.6869/2010 measuring east to west 34' and north to south 26'6'' as contended by him. In this suit the plaintiff except producing the documents such as sale deed, partition deed and the gift deed to show the measurement of the property in C.S No. 44 has not produced any documents such as City Survey Sketch to show that CS No.44 actually measures east to west 34' and north to south 26.6 feet. The plaintiff has produced the document Ex.P10 PT sheet of the properties bearing C.S No.42 to 51. According to the plaintiff this document of the year 1975. No doubt the plaintiff has taken contention that this City Survey was conducted without the knowledge of the plaintiff's father. Admittedly the revision petition filed by the plaintiff before the Joint Director of Land Records in Revision No.9/2010 was came to be dismissed. Even though the plaintiff has taken 49 O.S.6869/2010 contention that the said Revision Petition No.9/2010 was dismissed for technical reason that the Revision was filed after the Limitation Period, the fact remains that the plaintiff has failed to set aside the PT sheet prepared by the Survey Department. The plaintiff has produced the document Ex.P13 certified copy of Writ Petition No. 10811/2011 (KLR-RES) passed by Hon'ble High Court of Karnataka wherein the Hon'ble High Court was dismissed the Writ Petition by observing that a matter of this nature definitely cannot be examined by the Revenue Authorities whether on the revenue side or on the survey side. But liberty is reserved to the petitioner to approach the civil court to pursue their remedies in accordance with law. The plaintiff has not produced the copy of order passed in Revision Petition No. 9/2009-2010. According to the plaintiff 50 O.S.6869/2010 he realised in the year 2008 that the actual extent of his property was not exactly as described in the sale deed of the year 1971 and 1986 and it was found that to be a little short or less i.e., east to west 4'6'' and north to south 26'6''. Thus the plaintiff started to challenge regarding measurement from the year 2008 by moving application to the ADLR in the year 2008 and subsequently filed the Revision petition No.9/2010 before JDLR and filed this suit in the year 2010. In this suit the plaintiff has shown the cause of action for the suit arose on 17.3.2008 date of letter written by the plaintiff to the Deputy Director of Land Records, 28.7.2008 the letter written by Deputy Director of Land Records, 7.11.2008 plaintiff letter to JDLR, on 4.4.2009 letter by JDLR to plaintiff, on 1.1.2010 when the defendant finally refused to remove the encroachment. Thus on 51 O.S.6869/2010 perusal of the plaintiff according to the plaintiff the cause of action to file this suit arose in the year 2008. That itself indicates that the plaintiff was not at all aware about what is the actual measurement of the property possessed by the plaintiff prior to 2008.
20. In this suit the plaintiff has not produced any sketch to show that the actual measurement of the property bearing No. 11, old No. 2, CS No.44 was east to west 34 feet and north to south 26'6''. No doubt there is no much dispute regarding north south measurement of the property bearing CS No.44. The dispute is with regarding to east to west measurement. The plaintiff has claimed that his property bearing CS No.44 measures east to west 34 feet but presently he is in possession of the property measuring east to west 29'6'' and thus the remaining 52 O.S.6869/2010 portion , i.e., east to west 4'6'' and north to south 26'6'' was encroached by the defendant in the year 2000-2001 when she was constructed the building in her property. In this suit the plaintiff has not stated anything about the actual measurement of the property of the defendant. No doubt the defendant in her written statement also not stated regarding the actual measurement of her property in property No.
469. There is no dispute that the property bearing No.469 owned by the defendant is situated towards the eastern side of the plaintiff's property. According to the plaintiff towards eastern side of his property not only the property bearing No. 469 belongs to the defendant is situated but also there is property of one Noor Ahmad bearing No. 1 is situated towards eastern side of his property. The defendant has also taken contention that the plaintiff has not made all 53 O.S.6869/2010 the adjoining owners of his property as a party to this suit. The very contention of the plaintiff would indicates that the eastern boundary of his property not only shared by the defendants but also shared by one Noor Ahmad. Even in the document Ex.P10 PT sheet of CTS No.42 to 51 would indicates that towards eastern side of property bearing CTS No.44 there exists property bearing CTS No. 50 and 47. Admittedly the northern boundary of CTS No. 47 belongs to the defendant not stretched upto the northern boundary of the CS No. 44 belongs to the plaintiff. On perusal of the document Ex.P10 PT sheet it would indicates that the northern boundary of CS No. 44 which runs from east to west touches the middle portion of the property bearing CS No.50. Thus one thing is very clear that there is not only the property belongs to the defendant is in existence 54 O.S.6869/2010 but also the property belongs to the owner of the land in CS No.50 is in existence towards eastern side of the property bearing CS No. 44. Even in Ex.P14 hand sketch map produced by the plaintiff he has mentioned the property No. 1 towards the eastern side of his property No. 11 / CS No. 44. According to the plaintiff his property bearing No. 11 CS No. 44 is measures north to south 26.6 feet. When the property bearing No. 1 is situated towards eastern side of the plaintiff's property there is no possibility to encroach the property measuring north to south 26.6 feet only by one owner situated towards eastern side of the plaintiff property. The plaintiff has not made it clear what is the actual length of the border towards eastern side is shared by the owner of property No. 1. According to the plaintiff his eastern boundary is shared not only by the defendant 55 O.S.6869/2010 but also by the Noor Ahmad. Even if we peruse the document Ex.P10 PT sheet and the document Ex.P14 rough sketch produced by the plaintiff it would go to show that approximately 1/4th of the eastern border of the CS No. 44 was shared by the owner of the property CS No. 50 or property bearing No. 1. Thus there is no chance of encroaching north to south 26'6'' only by the defendant. The plaintiff has shown the suit 'C' schedule property as the portion of schedule 'A' property measuring east to west 4'6'' and north to south 26'6'' contending that this 'C' schedule property is encroached by the defendant. The first and foremost point is that when according to the plaintiff there exists two properties i.e., property No. 469 owned by the defendant and property bearing No. 1 owned by Noor Ahmad towards eastern side of his property, under such circumstances there is no 56 O.S.6869/2010 chance of encroachment of the whole extent of 4.6 feet x 26.6 feet only by one adjacent owner.
21. Now the question is whether the plaintiff proves that he was in possession of the property measuring east to west 34 feet and north to south 26.6 feet as contended by him could be seen. In this suit the defendant is not disputing the ownership of the property of the plaintiff which he is in possession. According to the plaintiff he is in possession of 'B' schedule property measuring east to west 29'6'' feet and north to south 26'6'' feet. It is undisputed fact that there exists a road towards western side of the plaintiff's property . It is not in dispute that there exists conservancy lane towards the northern side of the plaintiff's property. It is not in dispute that during the year 1971 the plaintiff's father was 57 O.S.6869/2010 purchased the property bearing CS No.44. According to the plaintiff on the very same day of purchase on 19.7.1971 his father mortgaged the property in favour of one H.V.Srikanta Shastry. It is the case of the plaintiff is that even though the document executed by his father in favour of H.V.Srikata Shastry nomenclatured as sale deed but it is not a sale deed, it was a mortgage deed. It is not in dispute that after the death of the plaintiff's father R.Dasappa his legal representatives have filed a suit against Sri.H.V.Srikata Shastry praying to declare that the said document dated 19.7.1971 is to be declared as mortgage deed and to direct to execute reconveyance deed. PW1 in his cross-examination admitted the suggestion that in that suit the parties had compromised and Sri.Srikanta Shastry had reconveyed the suit property in their favour in the 58 O.S.6869/2010 year 1986. PW1 has deposed that the suit schedule property was allotted to the share of 2 nd wife and children of his father late Dasappa. He also admitted the suggestion that his sister and mother had gifted their share in the suit schedule property in his favour in the year 2004. PW1 has admitted the suggestion that till 2004 suit property was in their possession without any interference. The very admission given by PW1 in his cross-examination that till 2004 suit property was in their possession without any interference would indicates that the plaintiff and his predecessors were continued in possession of the property what they had till 2004. According to the plaintiff the defendant had constructed the building consisting of ground, 1 st and 2 nd floor in the year 2001. The defendant has also taken contention that she has constructed the 59 O.S.6869/2010 building in her property in the year 2000-2001 after she obtained the sanction plan from the Bangalore Corporation. The defendant has produced the document Ex.D6 sanction plan issued by the Bangalore City Corporation. PW1 in his cross- examination has admitted the suggestion that they have not objected the defendant while constructing the building. PW1 has deposed that he was constructed the building in his property in the year 2008. That means the defendant has constructed the building much earlier to the building constructed by the plaintiff. The plaintiff has not produced any documents such as building permission or sanction plan to show that the plaintiff has constructed the building in his property by obtaining the necessary permission and sanction plan from the BBMP or Bangalore City Corporation. The perusal of the 60 O.S.6869/2010 document Ex.P1 copy of letter dated 17.3.2008 sent by the plaintiff to the Deputy Director of Land Records it is mentioned that while he physically verified the schedule property it found that there exists east to west 30 feet (9.14 meter) and north to south 26.6 feet (8.20 meter). It is also mentioned in Ex.P1 that while he constructing a single story building in his property he obtained the map from the survey department wherein it is mentioned that the property measures east to west 9 meters (29.5 feet) and north to south 8.20 meters (26.6 feet). It is also mentioned in Ex.P1 that he was able to construct a single story building in schedule property measuring east to west 29.5 feet (9 meters) and north to south 26.6 feet. On perusal of the document Ex.P1 even though it is mentioned that the plaintiff found shortage of east west measurement of 1.36 61 O.S.6869/2010 meters (4.5 feet), but he has not stated anything about whether the adjacent owners were encroached his property or not. Ex.P5 is the endorsement dated 28.7.2008 issued by the ADLR wherein it is mentioned that the property which is in possession of the plaintiff in CS No.44 is tallies with the enquiry report but the shortage of the land claimed by the plaintiff included in CS No.47. It is also mentioned that the measurement of the properties bearing CS No.44 and 47 was conducted as per the enquiry report dated 10.10.1975 and 24.10.1975 were approved, hence there is no possibility to make correction as per the sale deeds. The plaintiff relying on this document Ex.P5 would contend that in Ex.P5 it is mentioned that the property claimed by the plaintiff is included in CS No.47, hence that itself sufficient to hold that the defendant has 62 O.S.6869/2010 encroached the property measuring east to west 4.6 feet and north to south 26.6 feet. This contention of the plaintiff is not acceptable because in this suit the plaintiff has not produced any other sketch other than Ex.P10 to show that previous to preparing the sketch as per Ex.P10 PT sheet there was any sketch to show that the actual measurement of the property bearing CS No. 44 was east to west 34 feet and north to south 26.6 feet. It at all the plaintiff has produced any other sketch to show that the property bearing CS No. 44 was measuring east to west 34 feet and north to south 26.6 feet then we can say that the property bearing CS No. 44 which measures east to west 34 feet reduced by including 4 ½ feet in CS No. 47 or in the adjacent property. In this suit the plaintiff has not produced any document i.e., sketch to show that actual physical extent of the 63 O.S.6869/2010 property CS No. 44 was measures east west 34 feet. No doubt in the documents Ex.P15 to Ex.P19 and Ex.P23 to Ex.P26, i.e., the sale deeds, partition deed, gift deed, the measurement of the property bearing No. 11, old No. 2, CS No. 44 is shown as east west 34 feet and north to south 26.6 feet. But there is no document on the side of the plaintiff to show that the plaintiff or his predecessor-in-title were in possession of the property measuring east to west 34 feet. The plaintiff has not produced even single document to show that the plaintiff or his predecessor-in-title were in possession of the property measuring east to west 34 feet.
22. I have gone through the principles laid down by the Hon'ble Supreme Court in the decision cited by the learned counsel for the defendant which is 64 O.S.6869/2010 reported in AIR 2009 SC 2966 wherein the Hon'ble Supreme Court held that in a suit for declaration of title and possession burden of proof is on plaintiff to make out title and entitlement of possession - he cannot succeed on any alleged weakness in title or possession of defendant. In para No. 14 of this judgment it is observed that "the Letters Patent Bench over looked the fact that a plaintiff in a suit for declaration of title and possession can succeed only by making out his title and entitlement to possession and not on any alleged weakness in the title or possession of the defendants. It also overlooked the fact that the plaintiff did not step into the witness box and that none of his vendors and none of the neighbours / villagers were examined. There was therefore no evidence about previous possession. In fact plaintiff had deliberately 65 O.S.6869/2010 withheld evidence as to the date from which the defendants were in possession". In para No. 15 it is further held that "the trial court and the 1 st Appellate Court on examination of the title found that plaintiff had made out neither title nor previous possession. They also found that defendants were in possession. The Trial Court and the First Appellate Court also noticed the significant fact that the plaint and the evidence of plaintiff are wholly silent as to when, i.e., in which year, the defendants allegedly encroached upon the suit property. The plaint merely stated that during the absence of plaintiff the defendants had encroached the suit property in entirety. Neither the date, month or year is given. In that contest the Trial Court also observed that defendants should be taken as having established their adverse possessory title also and consequently, 66 O.S.6869/2010 suit should be held to be barred by Limitation. But even without the said finding, the suit was liable to be dismissed as neither title of plaintiff, nor previous possession of plaintiff nor encroachment by defendants was made out".
23. In my humble view the principles of this cited decision is aptly applicable to the present case. In this suit the plaintiff neither in his plaint nor in his oral evidence has stated the exact date of alleged encroachment upon the suit schedule property by the defendant. According to the plaintiff he came to know about the alleged encroachment only in the year 2008. Admittedly the defendant has constructed the building in the year 2000-2001 after obtaining necessary sanction plan and permission from Bangalore City Corporation. The plaintiff who has 67 O.S.6869/2010 claimed that the suit schedule 'C' property has been encroached by the defendant while she was constructing the building has not produced any piece of documents to show that at any point of time the plaintiff or his predecessors-in-title were in possession of the schedule 'C' property.
24. In the cross-examination of PW1 at page No. 12 he has admitted the suggestion that as per Ex.P1 0 City Survey Authorities had measured the suit property, fixed its boundaries and also of the adjacent properties and prepared this sketch. He has also admitted the suggestion that the property shown in the sketch, by No.44 is the suit property. He also admitted the suggestion that the property bearing No. 45, 43 also shown in Ex.P10. PW1 has deposed that towards the north of his property there exists 68 O.S.6869/2010 conservancy to the east of this conservancy there exists property No. 50 belongs to Noor Ahmad. PW1 / plaintiff in his cross-examination has clearly admitted the suggestion that as per Ex.P10 City Survey Authorities had measured the suit property and fixed its boundaries and also of the adjacent properties and prepared this sketch. This sketch as per Ex.P10 is not prepared recently. It was prepared in the year 1975 itself. In Ex.P10 the measurement of the property bearing No. 44 is shown as 9 meters to the east to west in both southern boundary as well as northern boundary and shown as 8.20 meters north to south towards western side and 8.13 meters north south measurement towards eastern side. In Ex.P10 which was prepared long back in the year 1975 the measurement of the property bearing No. 44 is shown as east to west 9 meters. The plaintiff has 69 O.S.6869/2010 not produced any sketch to show that his properties east west measurement was measuring 10.36 meters, i.e., 34 feet. The plaintiff has taken contention that he has submitted letter to the Deputy Director of Land Records in the year 2008. Thereafter the Survey authorities have conducted the inspection report and prepared the sketch. The plaintiff has also produced the sketch and report prepared by the Survey Authorities which is marked at Ex.P11. In Ex.P11 also the Survey Authorities have shown the same measurement of the property No. 44 as shown in Ex.P10 PT sheet which was prepared long back in the year 1975. In Ex.P11 at point No.3 it is mentioned that the possession of the property bearing No. 44 belongs to the applicant (plaintiff) is tallies with the earlier inspection report of 1975. That itself indicates that what was the extent of the 70 O.S.6869/2010 possession of the owner of the property bearing No. 44 in the year 1975 continued the same extent of possession till 2008. The document Ex.P12 is the copy of statement given by the plaintiff with respect to the sketch and report submitted by the Survey Authorities as per Ex.P11. In his statement as per Ex.P12 the plaintiff has claimed that while his father purchased the property on 19.7.1971 in the sale deed the measurement is mentioned as east to west 34 feet and north to south 26.6 feet. No doubt in the sale deed dated 19.7.1971 which is marked at Ex.P15 and Ex.P16 the measurement is mentioned as east to west 34 feet and north to south 26.6 feet. But on perusal of the document Ex.P10 which was prepared in the year 1975 itself the property bearing CS No.44 was measuring east to west 9 meter. According to the plaintiff Sri.H.V.Srikanta Shastry executed registered 71 O.S.6869/2010 reconvey (sale deed) dated 27.6.1986 in favour of the legal representatives of R.Dasappa (father of the plaintiff). The plaintiff has produced the document Ex.P17 said sale deed dated 27.6.1986 executed by Sri.H.V.Srikanta Shastry in favour of the legal representatives of R.Dasappa. In this document Ex.P17 the measurement of the property is shown as east to west 34 feet, north to south 26.6 feet. When in the year 1975 itself the survey authorities after measuring the properties CTS No.42 to 51 fixed its boundaries and prepared the sketch as per Ex.P10 and shown the actual measurement of the property bearing CTS No. 44 is east to west 9 meter and north to south 8.20 + 8.13 / 2 meters, under such circumstances it is not possible to deliver the possession of the property by the vendor H.V.Srikanta Shastry more than what was in 72 O.S.6869/2010 existence. The document Ex.P17 sale deed of the year 1986 is subsequent document to Ex.P10 which is of the year 1975. Under such circumstances very measurement mentioned in Ex.P17 and delivery of the possession of the property to the extent of east to west 34 feet is doubtful. PW1 in his cross- examination admitted the suggestion that the owners of the property mentioned in Ex.P23 to Ex.P26 never disputed regarding the measurement of the properties with the defendant. That means even the previous vendors of the property bearing No. 44 were enjoying the property without disputing the possession of the defendant. The plaintiff has not produced any sketch to show that the owners / vendors mentioned in Ex.P23 to 26 and Ex.P15 were in possession of the property measuring east to west 34 feet. Without there being any document to show that the plaintiff 73 O.S.6869/2010 or his predecessor-in-title were in possession of the property measuring east to west 34 feet it cannot be held that the defendant has encroached east to west 4.6 feet and north to south 26.6 feet, i.e., 'C' schedule property belongs to the plaintiff.
25. The document Ex.P11 and Ex.P12 would go to show that even though the plaintiff got measured the property bearing CTS No.44 belongs to the plaintiff and CTS No. 47 belongs to the defendant, the survey authorities have prepared the same sketch which was in existence as per Ex.P10. There is no such encroachment are shown in Ex.P11 as contended by the plaintiff. In this suit the plaintiff was moved I.A.No.4 under Order 26 Rule 9 r/w 151 C.P.C. seeking for appointment of a Commissioner for local inspection of the suit schedule property and the 74 O.S.6869/2010 property owned by the defendant and to measure the properties and prepare sketch of the properties in possession of the parties. The said I.A.No.4 was heard on its merits and it was dismissed by this court on 26.10.2015. Against the said finding the plaintiff was filed Writ Petition before Hon'ble High Court of Karnataka in W.P.No.51739/2015 and it was came to be dismissed by the Hon'ble High Court of Karnataka as per order dated 11.12.2020. The plaintiff has not produced any material to show that he was in possession of the 'C' schedule property measuring east to west 4.6 feet north to south 26.6 feet. Merely because the defendant has not mentioned the actual measurement of her property in her written statement is not sufficient to hold that the defendant has encroached the 'C' schedule property belongs to the plaintiff. It is the burden on 75 O.S.6869/2010 the plaintiff to show that he was in possession of the property measuring east to west 34 feet and north to south 26.6 feet and while constructing the building by the defendant she has encroached 'C' schedule property measuring east to west 4.6 feet and north to south 26.6 feet. There is no material to hold that the defendant has constructed her building by encroaching the property belongs to the plaintiff in property bearing No. 11, old No. 2 and CTS No. 44. On comparison of the document Ex.P10 and Ex.P11 it tallies with each other. The document Ex.P 14 is the hand sketch map prepared by the plaintiff. PW1 in his cross-examination admitted the suggestion that the document Ex.P10 and Ex.P14 does not tally each other. The plaintiff without any basis has prepared this hand sketch map as per Ex.P14. The document Ex.P14 which is not supported by any revenue sketch 76 O.S.6869/2010 is not sufficient to hold that the defendant has encroached the 'C' schedule property measuring east to west 4.6 feet and north to south 26.6 feet. I have gone through the decision cited for the learned counsel for the plaintiff which is reported in 2020(2) Kar.L.R.465 wherein the Court Commissioner was appointed and the Court Commissioner submitted his report and identified the boundaries specified in the sale deed. In my humble view this cited decision can be distinguished on facts. In the present suit the plaintiff has not produced any authenticated sketch to show that his property bearing No. 11, old No.2 CS No. 44 measures east to west 34 feet. The defendant has produced the documents Ex.D6 sanction plan issued by the Bangalore City Corporation. Ex.D8 Survey Sketch issued by the ADLR, Ex.D9 copy of field book issued by ADLR to 77 O.S.6869/2010 identify the property belongs to the defendant. The defendant has also produced the document Ex.D7 which is old sketch of the year 1955 to show the building measurement. The defendant after obtaining the sanction plan from Bangalore City Corporation has constructed the building. On the basis of the document Ex.P5 it cannot be held that the defendant has encroached property measuring east to west 4.6 feet and north to south 26.6 feet belongs to the plaintiff. It is not the contention of the plaintiff is that the defendant without his knowledge has constructed the building. PW1 in his cross- examination admitted the suggestion that either himself or his father was not raised any objections when the defendant was constructing the building. If at all there was any passage of 3 feet was in existence towards western side of old building of the 78 O.S.6869/2010 defendant, the plaintiff would have raised objection while constructing the new building by the defendant in the year 2000 if at all the defendant by encroaching 3 feet passage and by encroaching the property belongs to the plaintiff she started to put up construction. PW1 himself in his cross-examination admitted the suggestion that neither he nor his father raised any objections when the defendant was constructing the building. According to the plaintiff he was constructed his building in CS No.44 in the year 2008. The plaintiff has taken contention that there exists old building in his property bearing CS No.44 and same was collapsed in the year 1986 and thereafter till the year 2008 his property lying vacant. The plaintiff has not made it clear the actual measurement of his old building and also not made it clear what was the vacant space lying 79 O.S.6869/2010 surrounding his old building. The plaintiff who has taken contention that he has constructed the building in the year 2008 has not produced the sanction plan and permission obtained from the concerned authority for construction of the building. Plaintiff / PW1 in his cross-examination has deposed that they have obtained permission from the corporation at the time of construction of new building. If that is so it would be the best evidence to show the vacant space left by the plaintiff after constructing the building. The plaintiff has withheld the said document permission obtained from the corporation to construct his new building which is fatal to the case of the plaintiff. Only available sketch is the sketch as per Ex.P10. On perusal of Ex.P10 not only the measurement of the property bearing CS No.44 is mentioned but also the measurement of the 80 O.S.6869/2010 properties bearing CS No. 45, 46, are also mentioned in Ex.P10. On perusal of Ex.P10 the eastern boundary of the properties in CS No. 41, 42, 43, 44, 45, and 46 is drawn in parallel line from north to south. That means the eastern boundary of all these properties bearing CS No. 41 to 46 are in parallel line. It is pertinent to note that the east west measurement of CS No. 44 and 45 in Ex.P10 sketch is shown as 9 meters. In Ex.P10 even the western boundary of the properties in CS No.41 to 45 are drawn in parallel line. But the western boundary of CS No. 46 is shown little extended towards road. Thus the measurement of CS No.46 is shown as 9.90 meter. Admittedly the properties bearing No. 45 and 46 are situated towards the southern side of the plaintiffs property. The plaintiff has not produced any sketch to show that his property bearing CS 81 O.S.6869/2010 No.44 was measures east to west 10.36 meters or 34 feet. In this suit the plaintiff has not examined any witnesses to say that at any point of time the plaintiff or his predecessor-in-title were in possession of the property measuring east to west 34 feet. The plaintiff has not examined the author of the document Ex.P5. Merely because in Ex.P5 it is mentioned that some portion of property of CS No.44 included in CS No.47 it cannot be held that the defendant by encroaching the property belongs to the plaintiff in CS No.44 has constructed the building. The plaintiff has not made known about the actual space which was available towards eastern side of his old building. At one stretch the plaintiff has taken contention that the defendants old building which was in existence was constructed leaving 3 feet passage in the said property towards suit property. 82 O.S.6869/2010 But in another stretch the plaintiff has taken contention that the defendant has constructed the building in the entire property including 3 feet and by encroaching the plaintiffs property to the extent of 4'6''. First of all there is no cogent evidence on the side of the plaintiffs to show that there exists 3 feet passage towards western side of old building belongs to the defendant. Secondly there is no document on the side of the plaintiff to show that the property belongs to the plaintiff in CS No.44 was extended upto the pillar portion of staircase, sajjas of windows of the defendant's building. The plaintiff has not examined any witnesses on his side to prove that he was in possession of the property measuring east to west 34 feet. During the course of cross- examination of DW1 nothing is elicited from his mouth to show that the defendant has encroached 83 O.S.6869/2010 east west 4 ½ feet and north to south 26.6 feet belongs to the plaintiff. No doubt the plaintiff is the owner and in possession of the property measuring east to west 9 meter and north to south 8.20 + 8.13 meter / 2 as mentioned in Ex.P10 PT sheet. Since there is no much dispute about north south measurement of the plaintiff's property, the north south measurement is proved. But the plaintiff is not able to prove that he is the owner and in possession of the property measuring east to west 34 feet. On perusal of the documents produced by the plaintiff and oral and documentary evidence lead by both the side, it can be said that the plaintiff is able to prove his ownership over the property measuring east to west 29.6 feet and north to south 26.6 feet. Hence not withstanding the finding that plaintiff is able to prove his ownership to the 'B' schedule 84 O.S.6869/2010 property mentioned in the plaint, the plaintiff has failed to prove that he is the owner of the entire suit 'A' schedule property measuring east to west 34 feet and north to south 26.6 feet. The plaintiff has failed to prove that the defendant has encroached upon suit schedule 'C' property. The plaintiff has also failed to prove that the defendant has constructed in 3 feet passage and constructed one pillar, portion of stair case and sajjas projecting into vacant space in the eastern side of schedule 'A' property. Hence I answer issue No. 1 partly in the affirmative holding that plaintiff is able to prove his ownership over the property measuring east to west 29.6 feet and north to south 26.6 feet but failed to prove that he is the owner of entire suit schedule 'A' property. Plaintiff is failed to prove issue No. 2 and 3. Hence I 85 O.S.6869/2010 answered Issue No.2 and 3 in the Negative, Issue No. 1 partly in the Affirmative.
26. Issue No. 4: The defendant in para No.13 of the written statement has taken contention that the suit of plaintiff is not maintainable without he availing the alternative remedy by filing an appeal against the order passed by the JDLR. This contention of the defendant is not acceptable because the plaintiff has produced the document Ex.P13 certified copy of the order passed by the Hon'ble High Court of Karnataka in W.P.No.10811/2011 (KLR- RES) which shows that the plaintiff has challenged the order dated 6.8.2010 in case No. CTS (B) Revision 9/2009-10 passed by the Joint Director of Land Records. The Hon'ble High Court of Karnataka pleased to dismiss the Writ Petition No. 10811/2011 86 O.S.6869/2010 (KLR-RES) by observing that the liberty is reserved to the petitioner to approach the civil court. The plaintiff has filed this suit for the relief of mandatory injunction to direct the defendant to demolish all the construction in schedule 'C' property and to handover the vacant possession of schedule 'C' property to the plaintiff and also to restrain the defendant from interfering with the possession and enjoyment of the plaintiff in reference to schedule 'A' property. The provision under section 9 of C.P.C. is very clear that the court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressely or impliedly barred. There is no such bar to file this kind of suit for mandatory injunction and recovery of possession and for permanent injunction. The suit is maintainable. The contention taken by the defendant in para No.13 of 87 O.S.6869/2010 the written statement is that the suit is not maintainable is not acceptable. The defendant has failed to prove issue No. 4. Hence I answered issue No. 4 in the Negative.
27. Issue No. 5: The defendant also contended that court fee paid by the plaintiff is insufficient. But having taken such defence the defendant did not take pain to show how plaint is under valued. I have gone through the valuation slip annexed to the plaint. The plaintiff has paid court fee of Rs.50/- by valuing the suit as per section 26(c) of Karnataka Court Fee and Suit Valuation Act and also paid court fee of Rs.11,312/- as per section 24(a) of Karnataka Court Fee and Suit Valuation Act for the value of the suit 119.25 square feet x Rs.1,400/- = 1,66,950/-. Therefore the plaintiff for the relief of declaration 88 O.S.6869/2010 and possession of 'C' schedule property by showing the market value of the property at Rs.1,66,950/- has paid court fee of Rs.11,312/- and by valuing the suit at Rs.1,000/- + Rs.1,000/- he has paid court fee of Rs.50/- to the prayer for mandatory injunction and prohibitory injunction. The defendant has not lead any evidence to show the actual market value of the suit schedule property. When there is no positive evidence to show that market value of the suit 'C' schedule property is more than Rs.1,66,950/- as on the date of the suit, the court cannot direct the plaintiff to pay court fee on imaginary grounds. Unless the valuation of relief of plaintiff is Exfacia incorrect court has to accept the valuation made by the plaintiff. The defendant who has taken the contention that the court fee paid is insufficient has failed to show the market value of the suit property. 89 O.S.6869/2010 Hence I hold that the court fee paid on the plaint is sufficient. Accordingly issue No. 5 is answered in the Affirmative.
28. Issue No. 6: The plaintiff has filed this suit seeking for the relief of mandatory injunction to direct the defendant to demolish all the construction in the schedule 'C' property and handover the vacant possession of the schedule 'C' property to the plaintiff and also prayed to restrain the defendant from interfering with the possession and enjoyment of the plaintiff in reference to schedule 'A' property. While discussing issue No. 1 to 3 I held that the plaintiff has failed to prove that he is the owner of the 'A' schedule property measuring east to west 34 feet and the plaintiff also failed to prove that the defendant has encroached upon suit schedule 'C' property. 90 O.S.6869/2010 Since the plaintiff has failed to prove his ownership over the suit 'C' schedule property the plaintiff is not entitled for the relief of mandatory injunction and for the relief to direct the defendant to handover vacant possession 'C' schedule property to the plaintiff. The plaintiff has sought for permanent injunction to restrain the defendant from interfering with his peaceful possession and enjoyment of the suit 'A' schedule property. Since the plaintiff has failed to prove that he is the owner of the suit schedule 'C' property the plaintiff is not entitled for the relief of permanent injunction with reference to the schedule 'A' property. No doubt it is proved that the plaintiff is the owner and in possession of the property measuring east to west 29 feet 6 inches and north to south 26.6 feet. The plaintiff has not sought any relief with regarding to the suit schedule 91 O.S.6869/2010 'B' property. Since the plaintiff has failed to prove his possession over the entire suit 'A' schedule property the plaintiff is not entitled for the relief of permanent injunction as prayed in the plaint. The plaintiff is not entitled for any relief of mandatory injunction and recovery of possession of 'C' schedule property and also not entitled for the relief of permanent injunction in reference to schedule 'A' property. Hence I answered issue No. 6 in the Negative.
29. Issue No.7: In view of my findings to issue No. 1 to 6, I proceed to pass the following:
ORDER The suit of plaintiff is hereby dismissed.92 O.S.6869/2010
Parties shall bear their own cost.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 11th day of June, 2021.) (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - D.Harish Witness examined for the defendant/s DW1 - Manjunath V
Documents marked for the plaintiff/s :
Ex.P1 - Office copy of letter dated 17.3.2008 to Survey Department Ex.P2 - Postal receipt Ex.P3 - Postal acknowledgement Ex.P4 - Notice issued by Survey authorities 93 O.S.6869/2010 Ex.P5 - Endorsement dated 28.7.2008 / 08.08.2008 issued by Survey authorities Ex.P6 - Office copy of letter dated 7.11.2008 with enclosures to Survey Department Ex.P7 - Postal receipt Ex.P8 - Postal acknowledgement Ex.P9 - Endorsement dated 4.4.2009 issued by Survey Department under RTI Ex.P10 to - Copies of two sketches and copy of Ex.P12 statement obtained under RTI Act Ex.P13 - certified copy of order dated 5.9.2011 in W.P.No.10811/2011 Ex.P14 - Rough sketch Ex.P15 - Original registered sale deed executed in favour of plaintiff's father by Mehrunnissa Ex.P16 - Original registered sale deed executed by plaintiff's father in favour of H.V.Srikanta Shastry Ex.P17 - Original registered sale deed executed by Srikanta Shastry in favour of plaintiff and his brothers.94 O.S.6869/2010
Ex.P18 - Original registered partition deed executed amongst plaintiff's mother and brothers including plaintiff Ex.P19 - Original registered gift deed executed by plaintiff's mother in favour of plaintiff.
Ex.P20 - Extract
Ex.P21 - Document regarding sanction of plan
Ex.P22 - Another document given by BBMP
marked subject to objection
Ex.P23 - sale deed dated 26.3.1940
Ex.P24 - gift deed dated 12.2.1957
Ex.P25 - sale deed dated 18.5.1957
Ex.P26 - sale deed dated 10.6.1959
Ex.P27 - Information given under RTI
Ex.P28 - Preliminary decree obtained under RTI
in O.S.No.15/1948-49
Ex.P29 - Copy of Arbitration award obtained
under RTI
Ex.P30 - Copy of O.S.No.15/1948-49 under RTI
Documents marked for the defendant/s :
Ex.D1 - Power of Attorney 95 O.S.6869/2010 Ex.D2 - certified copy of Preliminary decree in O.S.No.15/48-49 Ex.D3 - certified copy of interim report submitted by the Arbitrator Ex.D4 - Khatha extract of site No. 469 Ex.D5 - certified copy of Khatha certificate Ex.D6 - Sanction plan issued by BBMP Ex.D7 - Original site plan Ex.D8 - Survey sketch issued by ADLR Ex.D9 - certified copy of field book issued by ADLR (Mohan Prabhu ) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
96 O.S.6869/2010 Judgment pronounced in the open court (vide separate detailed Judgment) ORDER The suit of plaintiff is hereby dismissed. Parties shall bear their own cost. Draw decree. XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE. 97 O.S.6869/2010