Karnataka High Court
The Heart Of Jesus Society vs Sri G. Dayanand Reddy on 20 July, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
R.F.A.No.2137 of 2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2023
BEFORE
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
REGULAR FIRST APPEAL NO.2137 OF 2019 (INJ)
Between:
The Heart of Jesus Society,
(registered under Society Registration Act)
Having office in Sy.No.26,
Amblipura, Sarjapura Road,
Bengaluru - 560103.
Represented by its President
Sri.Fr. Charles Babu.
...Appellant
(By Sri. Ashok Patil, Advocate)
And:
Sri.G. Dayanand Reddy,
S/o. Late V. Govinda Reddy,
Aged about 52 years,
R/at No.205, Amblipura,
Sarjapura Road,
(Behind Trinity hoods)
Bengaluru - 560 103.
...Respondent
(By Sri. G.V. Chandrashekar, Senior Counsel
for Smt. Apeksha D., Advocate)
*****
This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908, praying to allow the above
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appeal by setting aside the judgment and decree dated
14-10-2019 in O.S.No.1592/2017 passed by the XVII Additional
City Civil and Sessions Judge at Bangalore (CCH-16), and the
suit may kindly be dismissed as prayed, in the interest of
justice and equity.
This Regular First Appeal having been heard through
physical hearing/video conferencing hearing and reserved on
26-06-2023, coming on for pronouncement of judgment, this
day, the Court delivered the following:
JUDGMENT
This is a defendant's appeal. The present respondent as a plaintiff had instituted a suit against the present appellant, i.e. The Heart of Jesus Society, Amblipura Village, Sarjapura Road, Bengaluru, (hereinafter for brevity referred to as "the Society"), arraigning it as a defendant in O.S.No.1592/2017, in the Court of the learned XVII Additional City Civil and Sessions Judge, Bengaluru (C.C.H.16) (hereinafter for brevity referred to as "the Trial Court"), seeking a decree of permanent injunction of restraining the defendant - Society, its followers and henchmen from interfering or putting up any R.F.A.No.2137 of 2019 -3- un-authorised construction over the plaint schedule property which is in possession of the plaintiff.
2. The summary of the case of the plaintiff in the Trial Court was that, he is the absolute owner in possession and enjoyment of the land bearing Survey No.26/4, measuring 25 Guntas carved out of Survey No.26, situated at Amblipura Village, Varthur Hobli, Bengaluru East Taluk and he acquired the same under a family partition dated 29-12-1992 and after partition, mutation has been effected and his name has been entered in the RTC and subsequently, he got the land converted from agriculture to non-agriculture purpose and has constructed a residential house in the schedule property and residing therein. The land measuring 39 Guntas being the Eastern portion of Sy.No.26 has been purchased by the defendant Society from Mrs. Geetha Prasannan under a Sale Deed dated 09-12-1991 and they have put up certain constructions and carrying out certain activities. The plaintiff has put up a steel compound, covered with steel bars and steel sheet R.F.A.No.2137 of 2019 -4- bifurcating the land of the plaintiff and the defendant's property, which is situated to the East of the plaintiff's property. In the month of August-2016, the defendant - Society represented by its Management people and also the priest of the church trespassed into the property of the plaintiff and started abusing him in filthy language and threatened the plaintiff to demolish the steel compound, failing which, the plaintiff has to face dire consequences. The plaintiff attempted to explain them contending that the property belongs to him and that the church had no right over the same and at that time, one person introducing himself as a Circle Inspector of HSR Police Station threatened the plaintiff that he would immediately demolish the compound. The plaintiff requested the said Police Officer not to take law in his hands and that he may be forced to approach the higher authorities of Police Department. But the Police Officer, without caring the plaintiff, asked his driver to bring a JCB and demolish the compound and accordingly, the driver brought the JCB and demolished the compound. Later, the plaintiff came to R.F.A.No.2137 of 2019 -5- know that the said Police Officer was a Police Inspector, by name Victor Samuel from HSR Police Station a Christian and wanted to help the defendant - Society. Subsequently, an FIR was registered against the plaintiff by the said Police Officer and the plaintiff filed W.P.No.50958/2016 in the High Court of Karnataka, seeking quashing of the FIR. Again the plaintiff had put up a compound with steel slabs with barbed wire to protect his property on the Eastern side bifurcating the plaintiff's property and the defendant's property on the date 13-02-2017 and the defendant and its men came in large numbers and demolished the existing compound once again and the plaintiff could not prevent the destruction. Therefore, the plaintiff approached the Station House Officer, HBR Layout Police Station to lodge a complaint. But the Police did not take the complaint against the defendant and directed the plaintiff that the dispute is civil in nature and advised him to approach the competent Civil Court. Thus, the plaintiff was constrained to file the R.F.A.No.2137 of 2019 -6- present suit against the defendant Society for permanent injunction.
3. In response to the suit summons served upon the defendant - Society, it appeared through its counsel and filed its Written Statement, denying the plaint averments, calling them as false and incorrect. It further contended that the defendant Society is a Charitable Society registered under the Societies Registration Act, 1860. The defendant purchased a converted land measuring 38 Guntas in Survey No.26(P) of Amblipura Village, Varthur Hobli, Bengaluru South Taluk, which is the Written Statement schedule property and it acquired the same under four separate registered Sale Deeds. The defendant Society has been running a Training Institution in the Written Statement schedule property. The description of the plaint schedule property is vague and the plaintiff has not mentioned the correct measurement nor properly described the land in Survey No.26 which is owned and enjoyed by the defendant - Society. The land in Survey No.26 is spread over in several Acres of land and hence to R.F.A.No.2137 of 2019 -7- avoid confusion, the defendant has described its land in Survey No.26, measuring 38 Guntas as Written Statement schedule property. The plaintiff has never been the owner nor in possession of the plaint schedule property and he has filed a false suit to grab the land belonging to the defendant - Society. The defendant has acquired 01 Acre 02 Guntas of land in Survey No.23 of Amblipura Village under separate registered Sale Deeds, all dated 11-12-1991 and the said land is situated on the Eastern side of Survey No.26 and Survey No.25/1 belonging to the defendant - Society. The defendant has also acquired 01 Acre 11 Guntas of land in Survey No.25/1 of Amblipura Village under separate registered Sale Deeds, all dated 11-12-1991 and the said land is situated on the Northern side of Survey No.26 and Western side of said land in Survey No.23. Thus, the defendant is the absolute owner and in possession of a total extent of 03 Acres 12 Guntas of land. The Written Statement schedule property and the lands in Survey No.23 and Survey No.25/1 are situated adjoining and adjacent to each other and that the R.F.A.No.2137 of 2019 -8- defendant has been in possession and enjoyment of the said three items of land as one composite unit and had put a common compound wall covering the entire land and subsequently the defendant Society got its name entered in the revenue records and the khata is effected in the name of the defendant and accordingly the defendant Society has been exercising its right of ownership ever since. The defendant has produced a rough sketch showing the property of the defendant in Survey Nos.26, 23 and 25/1 of Amblipura Village and the said sketch also shows the buildings, location of the bore wells, water sump, rain water harvesting, Church, electrical room, residents of Priests and students and different buildings standing on the said property. On the Western side of the Written Statement schedule property, there are two bore wells, a water sump, workers' quarters, besides trees and one of the bore wells is located on the edge of the land in the Written Statement schedule property. In the midnight of 02-06-2016, due to heavy rain, the old compound wall from point D to E covering the defendant's property in R.F.A.No.2137 of 2019 -9- Sy.No.26 collapsed and likewise the compound wall from F to G on the Western side of Survey No.25/1 also collapsed and as a result, the water started to flow into the parking area of the neighbouring property i.e. Redwood Apartments and the Apartment owners requested the defendant to immediately put up the compound wall. The defendant wanted to put up a strong concrete compound wall and rebuild a new compound wall on the Western side of land in Survey No.25/1 i.e. from Point F to G. When the defendant started to put up the compound wall from point D to E of Written Statement schedule property, the plaintiff came and tried to interfere with the defendant's work and threatened the defendant and its office bearers with dire consequences. The plaintiff also cut and damaged the electricity wires connected to the bore well motors. The defendant further contended that the old compound collapsed on the date 02-06-2016 and there was no issue or trouble by the plaintiff with regard to defendant's possession and enjoyment over the Written Statement schedule property and this itself shows that the R.F.A.No.2137 of 2019
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plaintiff somehow wants to grab the defendant's property and tried to forcibly put up a steel compound in the property of the defendant. In the early morning of 29-08-2016, the plaintiff came with number of people and tried to forcibly put up a fencing with steel rods and wires in the property of the defendant and the defendant resisted the illegal acts of the plaintiff and removed the fencing tried to put up by the plaintiff and the plaintiff left the place and he also filed a Police complaint in HSR Nagar Police Station.
It is further the case of the defendant that once again, on the date 14-02-2017, the plaintiff came with many people and tried to forcibly put up the fencing with steel rods and wires in the property of the defendant and the defendant resisted the illegal action of the plaintiff and removed the fencing and the defendant also filed a Police complaint in HSR Nagar Police Station. The defendant has been in possession and enjoyment of the Written Statement schedule property and the defendant has been drawing and using the water from the two bore wells R.F.A.No.2137 of 2019
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located on the Western portion of the property in Survey No.26 and thus it is clear that the plaintiff is neither in possession nor in enjoyment of plaint schedule property or Written Statement schedule property belonging to the defendant. The plaintiff has no manner of right, title or interest or possession over the plaint schedule property or Written Statement schedule property. With these, the defendant Society concluded stating that the plaintiff has filed a false and frivolous case to justify his unlawful acts and grab the property of the defendant Society and the plaintiff was never the owner nor in possession of the plaint schedule property and hence the suit is liable to be dismissed with costs.
4. Based on the pleadings of the parties, the Trial Court framed the following issues for its consideration:
1) Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as on the date of filing of the suit?
2) Whether the plaintiff further proves the alleged obstruction over the suit schedule property by the defendant?R.F.A.No.2137 of 2019
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3) Whether the defendant proves that the suit of the plaintiff for bare injunction is not at all maintainable in law?
4) Whether the plaintiff is entitled for the reliefs as sought for?
5) What order or decree?
5. In support of his plaint, the plaintiff got himself examined as PW-1 and got marked documents from Exs.P-1 to P-20. On behalf of the defendant- Society, the President of the said Society Fr.Charles Babu got himself examined as DW-1 and got marked documents from Exs.D-1 to D-41.
6. After hearing both side, the Trial Court by its impugned judgment and decree dated 14-10-2019, while answering issues No.1, 2 and 4 in the affirmative and issue No.3 in the negative, decreed the suit of the plaintiff, permanently restraining the defendant - Society, its followers and henchmen from interfering or putting up any un-authorised construction over the suit schedule property. Aggrieved by the same, the defendant - Society has preferred the present appeal.
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7. The learned counsel for the appellant - Society (defendant) and learned counsel for the respondent (plaintiff) are appearing physically before the Court.
8. The Trial Court records were called for and the same are placed before this Court.
9. Heard the argument of the learned counsels from both side. Perused the material placed before this Court including the memorandum of appeal and the impugned judgment.
10. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
11. Learned counsel for the appellant - Society (defendant) in his argument submitted that, the Trial Court has put the burden upon the defendant - Society to prove that it has not encroached the plaint schedule property or interfered in the alleged peaceful possession of the plaint schedule property by the plaintiff. The said putting the burden upon the defendant - Society was R.F.A.No.2137 of 2019
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uncalled for. He further submitted that the evidence with respect to the alleged interference in the suit schedule property by the defendant - Society is not properly appreciated by the Trial Court.
Learned counsel further submitted that the defendant - Society has established that two bore wells were dug by it near the compound wall but the impugned judgment does not whisper anything about the presence of the bore wells in the property. Stating that with respect to the alleged interference by the defendant - Society in the suit schedule property, the plaintiff not filing any complaint with the Police creates a suspicion in the case of the plaintiff, the learned counsel submits that the appeal deserves to be allowed.
12. Per contra, learned Senior Counsel for the learned counsel for the respondent (plaintiff) in his argument submitted that, the plaintiff has clearly stated that he attempted to lodge a Police complaint, however, the Police did not receive the same, which compelled the plaintiff to file a writ petition. It is only thereafter, the R.F.A.No.2137 of 2019
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Police registered an FIR, however, at the end of investigation, they filed a 'B' report. He further submitted that after hearing the objection filed by the plaintiff, the said 'B' report was rejected. Thus, the argument of the learned counsel for the defendant (appellant) that the plaintiff did not file a Police complaint is far from truth and not acceptable.
Learned Senior counsel further submitted that, even though the plaintiff opted for a survey of the properties in question, however, the defendant - Society did not allow for such a survey to be conducted. This clearly goes to show that, the defendant - Society is attempting to grab the suit schedule property of the plaintiff which is adjacent to the property of the defendant.
Learned Senior Counsel further submitted that the 'B' report filed by the Police shows about the defendant demolishing the compound wall put up by the plaintiff around the suit schedule property. He also submitted that as in the year 1993, the alleged two bore wells were not in existence. The documents produced by the defendant - R.F.A.No.2137 of 2019
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Society themselves go to show that, only one bore well was alleged to have been dug in the year 2013. With this, he prayed for dismissal of the appeal filed by the defendant - Society.
13. In the light of the above arguments, the points that arise for my consideration in this appeal are:
[i] Whether the plaintiff has proved that he is in possession and enjoyment of the suit schedule property as on the date of filing of the suit?
[ii] Whether the plaintiff has further proved the alleged interference by the defendant - Society in his peaceful possession and enjoyment of the suit schedule property?
[iii] Whether the judgment and decree under appeal warrants any interference at the hands of this Court?
14. In order to substantiate the plaint averments, the plaintiff got himself examined as PW-1, who, in his examination-in-chief in the form of affidavit evidence has reiterated the contentions taken up by him in his plaint. He stated that the suit schedule property which was R.F.A.No.2137 of 2019
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originally a part of a total extent of land measuring 13 Acres with Survey No.26 situated in Amblipura Village in Bengaluru East Taluk was an ancestral property, in which 01 Acre 02 Guntas of land came to his share in a partition dated 29-12-1992 between himself, his father and other members of the family. A survey was conducted and the property falling to his share was phoded and was given two sub survey numbers, i.e. Sy.No.26/1, measuring an extent of 17 Guntas and Sy.No.26/4, measuring an extent of 25 Guntas. It is the land measuring 25 Guntas which is the plaint schedule property. The revenue records have been made in his name. The said land was got converted from agriculture to non-agricultural purpose, vide order dated 02-07-1995. He has also put up a residential house in the plaint schedule property.
PW-1 further stated that the land measuring 39 Guntas being the Eastern portion of Survey No.26 has been purchased by the defendant under a registered Sale Deed dated 09-12-1991, where the defendant has put up some construction in the said land. However, they R.F.A.No.2137 of 2019
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trespassed into the plaint schedule property in the month of August 2016. In the said process, the defendant also got the involvement of an Inspector of HSR Police Station, at whose instance, a JCB was brought and the compound erected by the plaintiff around the plaint schedule property was also demolished. The witness named the said Police Inspector as Victor Samuel of HSR Layout Police Station and called that he is a Christian and with an intention to help the defendant, joined the defendant and interfered in the possession of the suit schedule property by the plaintiff. The witness also stated that since the Police did not entertain his complaint, he filed a writ petition in W.P.No.50958/2016 in this Court for filing an FIR against the said Inspector. The witness has also stated that, after the incident, he once again put up a compound wall with steel slabs and barbed wire to protect the property bifurcating the same from the defendant's property. However, once again on the date 13-02-2017, the defendant, their men and followers came in large numbers and demolished the said compound. He has also stated R.F.A.No.2137 of 2019
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that the defendant and its office bearers were constantly putting threat to him and were obstructing him in the peaceful possession and enjoyment of the suit schedule property by him.
He further stated that though he approached the HSR Layout Police Station to lodge a complaint, however, the Police did not entertain his complaint and sent him back, returning the complaint, endorsing therein that it is a civil dispute, as such, he is required to pursue a civil remedy.
In support of his contention, the plaintiff got marked the alleged palu parikath/partition dated 29-12-1992 at Ex.P-1; copy of the order of the Special Deputy Commissioner, Bengaluru, under the Urban Land Ceiling Act, dated 28-03-1996, at Ex.P-2; certified copy of the land conversion order dated 04-07-1995, at Ex.P-3; document shown to be the record of rights as per Hissa mojini, at Ex.P-4; copy of the mutation register extract, at Ex.P-5; an RTC extract for the year 2016-17 with respect to the suit schedule property, at Ex.P-6; copy of the Sale R.F.A.No.2137 of 2019
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Deed dated 09-12-1991 shown to have been executed by one Mrs. Geetha Prasenan in favour of the defendant - Society, with respect to a portion of the land bearing Survey No.26 of Amblipura village, at Ex.P-7; Five photographs said to be depicting the act of alleged demolition of the compound wall from Exs.P-8 to P-12; a Compact Disc (CD), at Ex.P-13. Seven photographs from Exs.P-14 to P-20 were got marked in the cross- examination of DW-1 from the plaintiff's side.
In his cross-examination, PW-1 has admitted a suggestion as true that the defendant - Society is his neighbour since the year 1991. He also admitted as true a suggestion that, on the Eastern side of the suit schedule property, there is a property of the defendant - Society. He reiterated that the total extent of the suit schedule property bearing Survey No.26/4 is 25 Guntas and that he has inherited to the said ancestral property. Further, more details about an attempt to get a survey done with respect to the property was elicited in the cross- examination of PW-1. Though he admitted a suggestion R.F.A.No.2137 of 2019
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as true that on the Eastern side, there is a bore well near the compound wall, he contended that the said bore well is in the suit schedule property belonging to the plaintiff. He denied a suggestion that at the border of his property on the Eastern side within two feet, in the defendant's property, there exists a bore well belonging to the defendant. He also denied a suggestion that due to the heavy rains in the year 2016, the stone compound wall erected in between his property and the property of the defendant collapsed. He also denied a suggestion that it was him who was interfering in the property belonging to the defendant, in which regard, they had initiated a criminal case against him.
15. On behalf of the defendant - Society, one Fr. Charles Babu, S/o. Peter, who is said to be the President of the defendant - Society got himself examined as DW-1. The said witness, in his examination-in-chief in the form of affidavit evidence, has reiterated the contentions taken up by the defendant - Society in its Written Statement. He reiterated that the defendant purchased the converted R.F.A.No.2137 of 2019
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land measuring 38 Guntas in Survey No.26(P) of Amblipura Village, Varthur Hobli, Bangalore South Taluk which is the Written Statement schedule property under four separate Sale Deeds, all registered on the date 09-12-1991. He contended that the plaintiff was never the owner nor in possession of the suit schedule property or Written Statement schedule property. He also contended that the defendant acquired 01 Acre 02 Guntas in Survey No.23 of Amblipura village, Varthur Hobli, Bangalore South Taluk, under a separate registered Sale Deed dated 11-12-1991. On the same day, one more property measuring 01 Acre 11 Guntas of land in Sy.No.25/1 of the same village was also purchased by the defendant - Society, under a registered Sale Deed. Thus, the defendant is the absolute owner in possession of the land, measuring in total an extent of 03 Acres 12 Guntas, all located in Amblipura Village and they are adjoining and adjacent to each other. It is these lands the defendant Society has been in possession and enjoyment since the date of their purchase and also put up a common R.F.A.No.2137 of 2019
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compound wall covering its entire land. He further submitted that the defendant got two bore wells dug in their property and one among them is very close to the Western boundary of their property. The witness further stated that due to heavy rain which fell on the date 02-06-2016, the said old compound wall in the Written Statement property fell down, as a result, the water started to flow into the parking area of the neighbouring property i.e Redwood Apartments, as such, to avoid such flow of water into a residential area, the defendant re-built the new compound wall on the Western side of the land in Survey No.25/1. However, the plaintiff being unhappy with the same, got cut and damaged the electricity wires and cables connected to the bore well motors put up by the defendant. He also stated that till the old compound wall collapsed on the date 02-06-2016, there was no issue or trouble by the plaintiff with regard to the defendant's possession and enjoyment over the Written Statement schedule property in Sy.No.26. This itself would go to show that the plaintiff somehow wants to grab the R.F.A.No.2137 of 2019
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defendant's property and is trying to forcibly put up a steel compound in the property of the defendant.
DW-1 specifically denied the title of the plaintiff over the alleged plaint schedule property and contended that a bare suit for permanent injunction is not maintainable. He denied that there was any interference by the defendant in the alleged lawful possession of the suit schedule property by the plaintiff. On the other hand, he contended that it is the defendant who is in the lawful possession of the Written Statement schedule property, as such, the plaintiff does not deserve the relief of permanent injunction in his favour.
In his support, DW-1 got produced and marked documents from Exs.D-1 to D-41, which inter alia includes copy of the four Sale Deeds, all dated 09-12-1991, from Exs.D-3 to D-6; demand register extract at Ex.D-7; four tax paid receipts from Exs.D-9 to D-12; eight bills showing about digging of the bore well and instillation of the motor from Exs.D-14 to D-21; defendant's Registration Certificate under the Karnataka Societies Registration Act, R.F.A.No.2137 of 2019
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1960, at Ex.D-26; originals of Sale Deeds at Exs.D-3 to D-6 from Exs.D-27 to D-30; land conversion order dated 15-10-1991 at Ex.D-31; two sketches of the land, at Ex.D-32 and D-33; two demand register extracts at Exs.D-34 and D-35; a certified copy of the FIR in crime No.590/2016 with the HSR Layout Police Station and dated 27-08-2016 and the certified copy of the complaint leading to the said FIR at Exs.P-36 and P-37 respectively. DW-1 also got produced and marked three photographs said to be of Written Statement schedule property, at Exs.D-38, D-39 and D-40 and a Compact Disc (CD) at Ex.D-41. In his further examination in chief, a 'B' final report in Crime No.97/2019 and a copy of the FIR under the same crime number were got marked at Exs.D-42 and D-43 respectively.
In his cross-examination, DW-1, for several of the questions put to him, answered stating that he does not know. Some of the important questions for which the witness expressed his ignorance were about the witness knowing the plaintiff and the witness knowing about the R.F.A.No.2137 of 2019
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plaintiff filing the present suit against the defendant. He also pleaded his ignorance about the 13 Acres of land with Survey No.26 in Amblipura village earlier belonging to the ancestors of the plaintiff. However, he admitted a suggestion as true that the defendant Society has purchased 38 Guntas of land in the said survey number in the year 1991. He pleaded his ignorance about the details of the purchase of the lands made by the defendant and also about the attempts made for getting a survey conducted with respect to the properties. He also pleaded his ignorance as to whether the 38 guntas of land purchased by the defendant Society now comes under the Bruhat Bengaluru Mahanagara Palike (hereinafter for brevity referred to as "the BBMP") limits. However, the witness stated that the Written Statement schedule property consists of two bore wells in it. In the same breath, he expressed his ignorance as to whether those bore wells are situated in Survey No.26/4. However, he contended that they are within the 38 Guntas of land purchased by the defendant. He stated that the plaintiff is R.F.A.No.2137 of 2019
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the neighbour to their property and that he has put up a residential house on the Western side of the Written Statement property.
Though the witness admitted as true a suggestion that between the plaintiff's residence and defendant's property, there is a vacant place, but stated that it has got a sump and two bore wells. He expressed his ignorance that the said vacant place is part and parcel of 25 Guntas of land in Sy.No.26/4 belonging to the plaintiff.
In his further cross-examination the witness has stated that, on the Western side of the Written Statement schedule property, there is a land bearing Survey No.26/4. He also admitted as true a suggestion that in response to the Police complaint at Ex.D-25, the Police had filed a 'B' report. He denied a suggestion that the plaintiff has put up steel barbed fence around his property. He contended that photographs from Exs.P-14 to P-20 pertain to the defendant's property.
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In his further cross-examination, he admitted a suggestion as true that he objected to conduct a survey when the officials from Survey Department had visited the spot.
16. The above evidence from both the plaintiff and the defendant's side would clearly go to show that, even though the defendant - Society, both in its Written Statement as well in its evidence through DW-1 has contended that it denied the title of the plaintiff over the plaint schedule property, however, the defendant has not denied the possession of the plaint schedule property by the plaintiff, as on the date of the institution of the suit and during the pendency of the suit also. This is very clear in the cross-examination of PW-1, wherein, as already observed above, a suggestion was made to PW-1 from the defendant's side that, the defendant - Society is the neighbour of the plaintiff's house since the year 1991. It was also suggested to the witness (PW-1) that on the Eastern side of the house of the plaintiff, the property belonging to the defendant - Society exists. PW-1 R.F.A.No.2137 of 2019
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admitted both the suggestions as true. Even in the cross- examination of DW-1 also, the witness has stated that on the Western side of the defendant's property, there exists the house of the plaintiff. Further, the defendant also elicited from PW-1 in its cross-examination that the survey number of the property belonging to the plaintiff was 26/4 measuring 25 guntas and the said property has come to the plaintiff through his ancestors. It was also suggested to PW-1 that, apart from he putting up a house there and residing in it, he has also put up commercial shops and leased them out. But PW-1 did not admit the suggestion that he has put up commercial shops and leased them out in the suit schedule property.
These suggestions made to PW-1 by none else than the defendant itself through DW-1 and also the statements made by DW-1 in his cross-examination from the plaintiff's side would clearly go to establish that, the plaint schedule property is on the Western side of the defendant's alleged Written Statement schedule property. One more fact stands proved and established that the plaint schedule R.F.A.No.2137 of 2019
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property is adjoining and adjacent to the defendant's property in the original Survey No.26 of Amblipura village. The documents produced by the plaintiff from Exs.P-1 to P-6 which have not been seriously denied or disputed from the defendant's side further corroborates the said fact.
17. In addition to the above, the certified copy of the Sale Deed dated 09-12-1991 which is at Ex.P-7 has its one more set at Ex.D-3 and its original at Ex.D-29. These Sale Deeds clearly go to show that, to the Eastern side of the defendant's property measuring 38 Guntas, which is the schedule property in those Sale Deeds, is the remaining portion of the property in Survey No.26 of Amblipura village. This categorically shows that on the Western side of the defendant's property, measuring 38 Guntas in Survey No.26 of Amblipura village, is the plaint schedule property. Thus, both the plaint schedule property as well as the alleged Written Statement schedule property are adjoining and adjacent lands having a common boundary between them running from North to South, stands as a proven fact.
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18. The evidence of PW-1, both oral and documentary, more particularly, Exs.P-1 to P-6 coupled with a suggestion made from the defendant's side to PW-1 in his cross-examination that, plaintiff is the neighbour of the defendant's Written Statement schedule property and that the plaintiff has put up a residential house and continues to be a neighbour clearly goes to show that, the plaintiff is in lawful possession of the suit schedule property. That being the case, when the defendant, for name sake, denying the title of the plaintiff over the suit schedule property, but through its own documents and through suggestions made to PW-1 in his cross- examination and reply given by it in the cross-examination of DW-1, has shown that the plaintiff is in lawful possession of the property as a neighbour of the defendant
- Society, however, on the Western side of the defendant's Written Statement schedule property. As such, the contention of the defendant - Society that a suit for bare injunction filed by the plaintiff was not maintainable, is not acceptable.
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Further the plaintiff also has established that he is in lawful possession of the suit schedule property not just on the date of filing of the suit but even during the pendency of the original suit also.
19. The pleadings of both parties and the evidence led from both side would go to show that the alleged dispute between the plaintiff and the defendant - Society is with respect to demarcation of a common boundary running from North to South between the plaint schedule property and the Written Statement schedule property, which admittedly originally were part of the same Survey No.26 of Amblipura village.
20. The plaintiff's contention is that, around the plaint schedule property, he had put up a compound wall with steel plates and steel wire barbed fencing, however, on two occasions, firstly, in the month of August 2016, and secondly, on the date 13-02-2017, the defendant Society demolished and destroyed the compound wall erected by him with the help of a Police Officer R.F.A.No.2137 of 2019
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and attempted to trespass and encroach the plaint schedule property.
On the contrary, the contention of the defendant Society is that covering their property, the defendant Society also had put up a compound wall, however, due to heavy rains in the year 2016, the compound wall which was demarcating the properties of the plaintiff and the defendant had collapsed. When they (defendant) attempted to rebuild the same, the plaintiff initiated a dispute and attempted to encroach the defendant's land, only with an intention to grab some portion of the Written Statement schedule property of the defendant on its Western side which was acting as the Eastern boundary of the plaintiff's property.
In that connection, both side have produced few sets of photographs to show and contend that the alleged compound wall like structure which can be seen in some of the photographs was part and parcel of their respective properties. In that regard, the plaintiff has got produced photographs with a Compact Disc (CD) from Exs.P-8 to R.F.A.No.2137 of 2019
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P-20. Similarly, the defendant also has got produced photographs with a Compact Disc (CD) from Exs.D-38 to D-41. However, merely by looking at the said photographs, it cannot be held as to, who has put up the alleged bifurcating compound wall and at whose act, the compound wall came to be destroyed or demolished. Still, the defendant Society tried to show through its oral evidence and photographs at Exs.D-38 to D-40 that it had got dug two bore wells in its Written Statement schedule property, among which, one was very near to the Western boundary of its property which was acting as the Eastern boundary of the plaint schedule property. With the help of the alleged bore well, the defendant attempted to demolish the case of the plaintiff that the defendant has attempted to interfere in the possession of the plaint schedule property by the plaintiff.
21. The defendants got produced eight bills from Exs.D-14 to D-21. Though from a reading of the examination-in-chief of DW-1, it may have to be presumed that those bills are with respect to an alleged digging of a R.F.A.No.2137 of 2019
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bore well, however, a perusal of Exs.D-14 to D-21 does not specifically say or show as to in which particular land the alleged bore well was dug or drilled. It mentions about the drilling charges, motor pump set, G.I. pipe charges and electrical item charges. However, in the absence of any description in those documents including any corroborative oral evidence of DW-1 in that regard, it cannot be taken that the alleged two bore wells were dug by the defendant - Society only in the Written Statement schedule property only.
22. The above observation gains support in the cross-examinations of PW-1 as well DW-1. To a question put to PW-1 in his cross-examination from the defendant's side, suggesting to the witness that, on the Eastern side near the alleged compound wall, whether there exists a bore well, the witness answered admitting the existence of the bore well. However, in the same sentence, he stated that the said bore well exists in the plaint schedule property. Thus, the plaintiff, though admitted the existence of the bore well on the Eastern side of the plaint R.F.A.No.2137 of 2019
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schedule propriety, but contended that the said bore well was located in the plaint schedule property only.
On the other hand, DW-1 in his cross-examination though stated that the defendant has got dug two bore wells and one water sump, has also further stated that, he does not know whether the bore well and water sump are in Survey No.26/4, but he contended that they are within the lands purchased by them. Further, the very same witness, in his continued cross-examination, has answered in the affirmative, to a question put to him from the plaintiff's side as to, whether there is some vacant place between the defendant's Written Statement schedule property and the plaintiff's house, thus admitting the existence of a vacant place and he himself has stated that in the said vacant place, a sump, three rain water harvesting and two bore wells belonging to defendant Society exists.
23. Furthermore, most interestingly, the very same DW-1 in the very next sentence has stated that, he does not know whether the said vacant space is part and parcel R.F.A.No.2137 of 2019
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of 25 guntas of land belonging to the plaintiff in Sy.No.26/4. Thus, the sole witness examined on behalf of the defendant himself was not clear as to in which particular Survey Number, the alleged bore wells and water sump are located. He only believes that they are within the lands said to have been purchased by the defendant Society. But such a mere belief is not sufficient either to demolish the contention of the plaintiff or to make the defendant's defence more probable. When DW-1 was aware of the survey number of the plaint schedule property as well as the Written Statement schedule property and has given a very lengthy evidence in his examination-in-chief, though in the form of an affidavit evidence, but has pleaded his ignorance to many of the basic and vital aspects in his cross-examination, which included his ignorance as to whether the open space between the house of the plaintiff and the defendant's property is a part and parcel of the plaint schedule property bearing Sy.No.26/4. Therefore, mere production of some bills from Exs.D-14 to D-21 and three R.F.A.No.2137 of 2019
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photographs from Exs.D-38 to D-40 are themselves not sufficient to hold that the existence of a bore well on the Western side of defendant's property which is on the Eastern side of the plaintiff's property, was, in fact, actually in the defendant's Written Statement schedule property.
24. In addition to the above, a careful reading of the cross-examination of DW-1 dated 29-06-2019 would go to show that, the question put to DW-1 about the open space and the answer given by the witness to the same, which have been discussed above, was recorded in Kannada language. A translation of the said portion in the English language is as below:
"To the question as to, is there any
existence of vacant space between the
defendant's property and the plaintiff's house, the witness says 'yes', but in the said space, a sump, three rain water harvesting and two bore wells are there.
To another question as to whether the above said vacant space is a part and parcel of R.F.A.No.2137 of 2019
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25 Guntas of land in Sy.No.26/4 belonging to the plaintiff, the witness says (I) do not know whether the above stated open space is a part and parcel of the 25 Guntas of land belonging to the plaintiff in Sy.No.26/4."
The above questions and answers would clearly go to show that the suggestions that were made from the plaintiff's side to DW-1 though were with respect to an open space/vacant land, but the same was shown to have been located between the defendant's property and the plaintiff's house (emphasis supplied).
25. Thus, the very question itself shown that the alleged bore well was in open space and that open space/vacant land was outside the defendant's property, however, before the plaintiff's house. It has also come in the evidence of PW-1 and also DW-1, as observed above, that, the defendant has stated that, the plaintiff, in the plaint schedule property, has put up a residential house and is residing there. Admittedly the plaint schedule property and the Written Statement schedule property are R.F.A.No.2137 of 2019
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adjacent and adjoining lands wherein to the Western side of the defendant's property lies the plaint schedule property. It is not the case of either of the parties that the entire 25 Guntas of land which is the plaint schedule property is covered with a construction in the form of plaintiff's house. Therefore, the open space between the plaintiff's house and the defendant's property according to the answer given by DW-1, as above, was outside the defendant's property but before the plaintiff's residence within his property, which residence as can be gathered from the above analysis, is a portion in Sy.No.26/4, which is the plaint schedule property. As such, more probability is that, between the residence of the plaintiff and the Eastern boundary of the plaintiff's property, the plaintiff has left some open space. As such also, merely taking into consideration the existence of bore wells, it cannot be held that, the open space was belonging to the defendant and that the bore well on the Western side of defendant's property is within the limits of the alleged Written Statement schedule property, more particularly, that R.F.A.No.2137 of 2019
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portion which is sharing the boundary with the plaint schedule property.
26. The above observation gains some more support from the evidence of DW-1, who, in his cross-examination, has admitted a suggestion as true that, he had objected for conducting a survey which was requested to be conducted by the Survey Department at the request of the Police. The witness has admitted as true that when the people from the Survey Department had come to conduct a survey, he had objected for the same contending that no survey work should be carried on. This admitted opposition by the defendant to conduct a survey of the disputed portion of the land by the officials of the Survey Department and upon the request by the Police also creates a doubt in the defence contention taken up by the defendant and makes the case of the plaintiff more probable and stronger that he had put up a compound wall surrounding the plaint schedule property, however, the defendant demolished/destroyed the said compound wall. It is now the photographs produced by the plaintiff from R.F.A.No.2137 of 2019
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Exs.P-8 to P-20 including a Compact Disc (CD) that allows it to be taken as supportive of the contention of the plaintiff.
27. The plaintiff has categorically and specifically stated that, in the first attempt of the defendant in trespassing into his property, there was involvement of one Police officer of HSR Layout Police Station, who himself being a Christian by religion, wanted to favour the defendant - Society, gains support by the further evidence of PW-1 that, he had to file a writ petition in this Court in Writ Petition No.50958/2016 to enable him to file an FIR against the said Inspector. Though PW-1 in his examination-in-chief has stated that the said writ petition was filed for filing of FIR against the said Inspector, however, the suggestion made from plaintiff's side to DW-1 in his cross-examination would go to show that, the said writ petition was filed by the plaintiff against the 'B' report filed by the Police as against the FIR at Ex.D-25. Still, the fact remains that the plaintiff has made an attempt at the earliest point of time to approach the Police R.F.A.No.2137 of 2019
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seeking their interference in preventing the alleged trespassing into the suit schedule property by the defendant Society.
28. In addition to the above, as has come out in the evidence of the plaintiff as PW-1, with respect to the alleged second attempt to destroy the compound by the defendant Society on the date 13-02-2017 and the trespass into the plaint schedule property also, the plaintiff had approached the HSR Layout Police Station. However they did not receive his complaint against the defendant, stating that the dispute was civil in its nature and directed him to approach the Civil Court for appropriate relief. This evidence of PW-1 which has not been specifically and categorically denied by the defendant Society would also clearly go to establish that the defendant Society had obstructed and caused interference in the possession of the plaint suit schedule property by the plaintiff.
29. Since it is analysing the evidence placed before it though not in a detailed manner, the Trial Court has come to a finding which cannot be called erroneous, on R.F.A.No.2137 of 2019
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the other hand, the said finding stands confirmed by virtue of the above analysis made by this Court, the argument of the learned counsel for the defendant (appellant) that the Trial Court has erred in decreeing the suit of the plaintiff is not acceptable. On the other hand, the argument of the learned Senior Counsel for the respondent (plaintiff) that, the finding of the Trial Court is based on the proper analysis of the oral and documentary evidence placed before it, requires to be accepted. Thus, the impugned judgment and decree does not warrant any interference at the hands of this Court.
Accordingly, I proceed to pass the following:
ORDER [i] The appeal filed by the defendant -
Society (appellant) stands dismissed;R.F.A.No.2137 of 2019
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Registry to transmit a copy of this judgment along with the Trial Court records to the concerned Trial Court, immediately.
Sd/-
JUDGE BMV*