Bangalore District Court
Narayanan V K vs The Commissioner Bangalore ... on 19 June, 2024
KABC010064052017
IN THE COURT OF THE XXII ADDL.CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY: (CCH.7)
Dated this the 19TH day of June, 2024.
PRESENT
BALAGOPALAKRISHNA
XXII ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.1807/2017
PLAINTIFF : Sri. V.K.Narayanan,
S/o. K.Keshavan Nair,
Aged about 77 years,
R/at. No.1892, Tulasi Nilayam
15th cross, AECS Layout,
Singasandra Post
Hosur Road
Bengaluru560068.
( By Sri.BVG, Advocate)
VS
DEFENDANTS : 1. The Commissioner
Bengaluru Development Authority (BDA)
T.Chowdaiah Road
Kumara Park West,
Bengaluru560020.
2. The Commissioner
Bruhath Bengaluru Mahanagara Palike
2 O.S.No.1807/2017
N.R.Square, Hudson Circle
Bengaluru.
3. Sri. B.Ramaiah (Dead on 07082018)
S/o. Late Sanjeevaiah
Aged about 84 years.
4. Sri. G.R.Venkatesh Murthy
S/o. B.Ramaiah, Aged about 54 years.
5. Sri. G.R.Mohan Kumar
S/o. B.Ramaiah
Aged about 51 years.
6. Sri. G.R.Lokanathappa
S/o. B. Ramaiah
Aged about 49 years.
7. Sri. G.R.Jayaprakash
S/o. B.Ramaiah
Aged about 46 years.
8. Sri. G.R.Pundarikasha
S/o. B. Ramaiah
Aged about 44 years,
All are residing at
66/1, 12th Main Road
2nd block, Rajajinagar
Bangalore560010.
(Advocates by Sri.SY for Defendant No.1
Sri. P for defendant No.2
Sri. SVV for D4, 5, 6
Sri. MDN for D8
[ defendant No.3 dead ]
3 O.S.No.1807/2017
Date of Institution of the suit : 13032017
Nature of the Suit : DECLARATION&
POSSESSION
Date of commencement of recording
of evidence : 03 03 2021
Date on which the Judgment was
pronounced : 19 06 2024
Year/s Month/s Day/s
Total Duration : 07 03 06
(BALAGOPALAKRISHNA)
XXII Addl.City Civil & Sessions Judge,
Bengaluru City.
JUDGMENT
The plaintiff has filed this suit against the defendants to declare that he is the absolute owner of 'B' schedule property i.e., EFGH area shown in the rough sketch enclosed to plaint, possession of the 'B' schedule property, declaration with registered sale deed dated 16052008 and 19052008 in respect of 'B' schedule property is not binding on the plaintiff, Mandatory Injunction and other reliefs as shown in the plaint.
4 O.S.No.1807/20172. In brief, case of the plaintiff are as under: On perusal of the plaint schedule there are two schedule properties i.e., 'A' and 'B' schedule properties. It is mentioned as under: SCHEDULE A PROPERTY Site bearing No.66/1, Old Kaneshmari No.72/2 (further old site No.65) measuring East to West 80ft, North to South 20ft totally measuring 1600 sqft situated at Jooganahalli Gramatana, 2nd block, Rajajinagar, Bangalore10 bounded on: East by: Puttananajamma's house and vacant land;
West by: 12th main Road, (old Trust Board Road) North by: Church, earlier it was H.N.Lingaiah's property;
South by: Other portion of the same No. belongs to Chikkabyatagaiah.
As shown in the annexed sketch and described as ABCD portion.
SCHEDULE B PROPERTY Western portion of site bearing No.66/1, old Kaneshmari No.72/2 (further old site No.65) measuring East To West 25ft, North to South 20ft totally 5 O.S.No.1807/2017 measuring 500 sqft situated at Jooganahalli Gramatana, 2nd block, Rajajinagar, Bangalore10 which is fully described in the Annexed sketh as EFGH portion bounded on: East by: Remaining property of A schedule belongs to the plaintiff.
West by: 12th Main Road (old Trust Board Road) North by: Church earlier H.N.Lingaiah property, vacant site.
South by: Remaining portion of site No.66/1 belongs to Chikkabyatagaiah Further the plaint averments reveals that, 'B' schedule property is the part and parcel of the 'A' schedule property. The plaintiff is seeking relief only in respect of 'A' schedule property. It is further pleaded in the plaint that, the plaintiff was an employee in HAL. He retired from the service in the year 1996. While he was in service, he had purchased site No.66/1 old Kaneshumari No.72/2 of Jooganahalli village Gramathana, 2nd block Rajajinagar, Bengaluru measuring East to West 80ft and North to South 20ft under registered sale deed dated 11061964 for valuable consideration of Rs.3000/ from its erstwhile owner by name Chikkabyatagaiah who had purchased 6 O.S.No.1807/2017 the same from one H.N.Lingaiah S/o. Chamundi Nanjaiah & his wife Smt. Gangamma under registered sale deed dated 13011964 on the date of the sale itself, the vendor of the plaintiff by name Chikkabyatagaiah put the plaintiff in possession of the same. Accordingly, he is in possession of the same without any hindrance. It is also submitted that, subsequently the corporation assigned site No.65 standing in the name of the plaintiff's father as per the endorsement issued by the Asst. Revenue Officer on 03111966. Thus, the plaintiff is in possession of 'A & B' schedule properties as an absolute owner without any hindrance.
3. It is submitted that, though the plaintiff has purchased the suit schedule property Katha has not been changed by the Corporation for one or the other reason, till today. After several pursuations, the ARO of Rajajinagar Zone on 12022013 has wrote a letter to the Deputy Secretary, BDA Rajajinagar Division contending that in the Jooganahalli area reconveyed deeds have been issued in the name of site Owners & requested to give particulars, in whose favour reconveyance deed has been issued in respect of Khanesumari no.72/2 of Joganahalli village. At that 7 O.S.No.1807/2017 time, the plaintiff has also submitted his application along with the title deed and sketch to consider that he is in possession and enjoyment of the suit schedule property. Till today, the Deputy Secretary BDA has not furnished anything about the submission made by the plaintiff. It is submitted that, inspite of several requests the BBMP authorities have not changed the Katha in the name of plaintiff, finally the concerned authorities have informed him that site in question was transferred in the name of Ramaiah, but no documents were furnished to the plaintiff to that effect. Therefore, the plaintiff has filed an application on 13112013 under RTI Act requesting the Deputy Secretary, BDA to furnish the sale deed executed in favour of B.Ramaiah and also transactions from 1973 to 2013 with map in respect of Khanesumari No.73/2 of Joganahalli village in respect of the property purchased by the plaintiff. In response to that, on 01022014 the Deputy Secretary BDA has issued endorsement to the effect that file in respect of Sy.No.72/2 is not available.
4. It is submitted that, the defendant Nos.3 to 8 colluding together have illegally put up shed measuring 10 x 10ft in the property of the plaintiff. They have threatened the plaintiff with dire consequences. The 8 O.S.No.1807/2017 defendants have not shown any title deeds in respect of the said area so the plaintiff got issued legal notice to the Commissioner on 13112015 to change the Katha in respect of the suit schedule property, but the Commissioner has not suitably replied. It is submitted that, ARO Rajajinagar has clearly identified the property of the plaintiff and he furnished site No.66/1 in the place of Khaneshmari No.72/2. The ARO has also issued an endorsement on 25052016 to the effect that portion of the plaintiff's property is renumbered as 66/1 and it was allotted to one Sanjeevaiah by the erstwhile CITB on 30101973. It is further informed in the endorsement that, the Katha in respect of the site No.66/1 was changed in the name of B.Ramaiah S/o. Sanjeevaiah on 7121983 etc., It is informed that site No.66/1 is the western part of Khaneshmari No.72/2. It is also stated that, the 'B' schedule property was registered in the name of Ramaiah under Registered sale deed dated 16052008 wherein, consideration amount is shown as Rs.2470/ , the said fact came to the knowledge of the plaintiff when endorsement dated 25052016 was issued by the BBMP.
9 O.S.No.1807/20175. It is submitted that, whatever the property acquired by the plaintiff herein in Khaneshmari No.72/2, new No.66/1 was not acquired by the defendant No.1 at any point of time in the manner known to law. In spite of it, the representative of the defendant No.1 executed Registered sale deed in favour of B.Ramaiah on 16052008, for that defendant No.1 has no right at all. On the basis of the said sale deed, the defendant No.3 are interfering with the possession of the plaintiff. Hence, cause of action was arose for the plaintiff to file the suit.
6. Soon after service of summons, the defendant No.3 has appeared through his counsel and filed a detailed written statement. It reads as under: This defendant at the first instance has denied all the averments made in the plaint are all false and created for the purpose of filing of this suit. It is also stated that, there is no cause of action to file the suit. The defendant further states that, his father name is Sanjeevaiah @ Sanjeevappa, the said Sanjeevaiah and his brothers were residing in their ancestral house property bearing Old No.101 and new number 101/2, 10 O.S.No.1807/2017 situated at 2nd main road, Jugganahalli village, 2nd block, Rajajinagar, Bengaluru which was measuring big dimension and it is their ancestral property. Towards the west of the said ancestral house, land bearing Sy. No. 134/5 of Jugganahalli village, Kethamaranahalli Dakhle is situated. The said land has been acquired by the earstwhile CITB for formation of Rajajinagar layout under preliminary notification dated 01081946. After formation of layout, the CITB which is named as Rajajinagar 2nd block. While forming layout some marginal land was exists between the said layout and Gramathana site of this defendant`s father. The land acquired by CITB which was situated towards east of the 12th main road, layout has been formed by the CITB. The CITB has passed a Resolution on 21.6.1972 to allot marginal sites in favor of adjacent owners. It is submitted that since site bearing No. 9 situated in between ancestral property of the plaintiff and 12th main road, the said site was allotted by CITB in favor of father of the defendant on 14.8.1972 measuring East to West 25+15/2 and North to south 45 feet with a specific boundaries . The father of the defendant No.3 has also paid entire site value of Rs. 2,470/ to the CITB on 12.10.1973. In pursuance of that on 19.10.1973 CITB 11 O.S.No.1807/2017 has executed registered Lease cum Sale Agreement and it was registered on 22.10.1973 and CITB has issued possession Certificate in favor of the father of the defendant on 30.10.1973. On 6.5.1982 the defendant's father and his brothers have executed registered Release Deed in favor of this defendant and his sons in respect of portion of Gramathana site bearing old No. 101 / new number 101/2 measuring East to West 35+25/2 and North to south 45 feet described as item No. 1 property out of bigger dimension site and CITB site No. 9 allotted in favor of the father of this defendant described as item No. 2 . By joining together the said item No.1 and 2 both measuring EastWest 50 feet and NorthSouth 45 feet which includes 5 feet of common passage. Thus this defendant has become the owner of the said property.
7. It is further submitted that subsequently this defendant has paid betterment charges of Rs. 1860/. The BDA has also permitted to put up a building for commercial purpose and plan was also sanctioned. This defendant is absolute owner is paying necessary tax to BBMP regularly. It is also stated that in respect of the said property there was litigation in OS No. 5138/1980 and OS No. 5135/1980. On merits suit filed by the 12 O.S.No.1807/2017 father of the defendant herein in OS No. 5138/1980 was decreed on 22.12.2001 and suit filed by K. Ananthram Bhat in OS No. 5135/1980 was dismissed. It is submitted that, the plaintiff is claiming right over the portion of site No.9 allotted by the CITB in favour of father of defendant Nos.3 to 8 which is the part and parcel of Sy.No.134/5. It is also stated that, Sy.No.101/ New Sy.No.101/2 belonged to the father of defendant No.3 to 8, subsequently the said property was divided among sons of Ramaiah by filing suit in O.S.NO.894/96. The share fallen to one Srinivasa adjacent to the property situated towards East of the defendant's property has already been sold in favour of wife & son of one Pandurangan. It is further stated that, property bearing No.BCC Katha No.9/66/1 was released in favour of defendant No.3 and same was subsequently partitioned under partition deed dated 24102001. Whatever the share fallen to defendant No.3 in Katha No.9/ 66/ 1 , the defendant has constructed residential building and commercial shop long ago and taken necessary civic amenities & also paying necessary tax to the City Corporation, now BBMP. It is also stated that, the plaintiff has not questioned the allotment made in favour of Sanjeevaiah in respect of site No.9 in 13 O.S.No.1807/2017 the manner known to law. Hence, suit of the plaintiff is not maintainable. On these grounds and amongst others the defendant Nos.3 to 8 prayed to dismiss the suit with costs.
8. On the basis of the above pleadings of the respective parties, following issues are framed : ISSUES
1) Whether the plaintiff proves that he is the absolute owner of the suit schedule 'B' property?
2) Whether the plaintiff is entitled for recovery of possession of suit schedule 'B' property?
3) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed?
4) Whether the plaintiff is entitled for the relief as sought for?
5)What Order or decree?
9. On the side of the plaintiff, PW.1 is examined and Exs.P1 to 25 are got marked. On the side of the defendants DW.1 is examined. Ex.D1 to 17 are got marked & closed their side.
10. Heard the arguments on both the sides and perused the documents.
14 O.S.No.1807/201711. On the basis of the evidence available on record, my findings on the above issues are as under: Issue No.1 : In the Affirmative;
Issue No.2 : In the Affirmative;
Issue No.3 : In the Affirmative;
Issue No.4 : In the Affirmative;
Issue No.5 : As per final order
for the following:
REASONS
12. ISSUE NOS.1 to 4 :
These issues are interlinked and they are taken together for common discussion to avoid repetition.
As per the plaint averments the plaintiff has shown two schedules i.e., 'A' schedule property, it reads as under: Site bearing No.61 / Old Khanesumari No.72/2 measuring East to West 80ft and North to South 20ft totally measuring 1600 sqft, 2nd block, Rajajinagar, Bengaluru bounded by: East by : House of Puttananjamma & vacant land West by:12th main road 15 O.S.No.1807/2017 (Old Trust Board Road) North by: Church (earlier H.N.Lingaiah's property) South by: Property retained by Vendor of the plaintiff by name Chikkabyatagaiah in site No.66/1 / Kh.No.72/2 The 'B' schedule property shown in the plaint is part and parcel of 'A' schedule property measuring East to West 25ft and North to South 20ft measuring 500 sqft, bounded by: East by : Remaining property of 'A' schedule belonged to the plaintiff West by:12th main road (Old Trust Board Road) North by: Church (earlier H.N.Lingaiah's property) South by: Property retained by Vendor of the plaintiff by name Chikkabyatagaiah in site No.66/1 / Kh.No.72/2.
13. In order to locate the 'A' & 'B' schedule property, the plaintiff has produced rough sketch along with plaint which is marked at Ex.P23. The said sketch has been produced in order to proper identification of the 'A' & 'B' schedule properties of plaintiff, it is drawn as it is.
16 O.S.No.1807/2017(SKETCH IS DRAWN BY HAND)
14. Entire 'A' schedule property is shown in ABCD area, whereas 'B' schedule property is shown as EFGH area. So far as the said sketch has not been seriously disputed by the defendants. Therefore, the said sketch can be considered in order to appreciate the merits of the case of the parties. It is pertinent to note that, entire 'A' schedule property is not in dispute, out of the 'A' schedule property the plaintiff is seeking relief only in respect of 'B' schedule property i.e., for declaration, possession, Mandatory injunction and other reliefs claimed in the plaint.
15. The plaintiff who has approached the court seeking the said relief of declaration, he has to prove his title over the entire 'A' schedule property, then only he is 17 O.S.No.1807/2017 entitle for relief in respect of 'B' schedule property. In order to prove the title over the 'A' schedule property, the plaintiff himself examined as PW.1 and his examinationin chief has been filed by way of affidavit and through him the following documents are got marked: Ex.P1 Is the Certified copy of sale deed dated 13091964 where under one Smt. Gangamma had sold Kh.No.72/2 in favour of Chikkabyatagaiah.
Ex.P2 Is the Certified copy of Lease cum sale agreement dated 19101973 executed by Chairman, CITB in favour of Sanjeevaiah by allotting site No.9.
Ex.P3 Is the Endorsement issued by BBMP.
Ex.P4 Is the Endorsment issued by BBMP standing in the name of Chikkabyatagaiah.
Ex.P5 Is the Tax paid receipt.
Ex.P611 Are the Encumbrance certificates
in respect of 'A' schedule property.
Ex.P12 Are the 7 tax paid receipts.
Ex.P13 Is the Endorsement issued by BDA 18 O.S.No.1807/2017 Ex.P14 Is the Office copy of legal notice issued to Commissioner, BDA.
Ex.P15 Is the Postal Acknowledgment Ex.P16 Is the Acknowledgment issued by BBMP Ex.P17 Is the Certified copy of sale deed dated 16052008 executed by Dy.Secretary BDA in favour of Ramaiah & sons.
Ex.P18 Is the Office copy of legal notice Ex.P19 Is the Postal acknowledgment Ex.P20 Is the Office copy of legal notice Ex.P21 Is the Postal Acknowledgment.
Ex.P22 Is the Original Deed of Sale dated 11th June 1964 executed by Chikkabyatagaiah in favour of plaintiff.
Ex.P23 Is the Rough sketch of Khanesumari No.72/2 old No.65, new number 66/1.
Ex.P24 Is the EC Property details in Document No.16, 28th July 2016.
Ex.P25 Is the Certified copy of Form A / Application under Section 6(1) & 19 O.S.No.1807/2017 7(1)of the The Right to Information Act, 2005.
16. In the cross examination the defence taken by the defendants in the written statement has been suggested, same is denied by the witness, witness all along claimed his ignorance that, site No.9 was allotted in favour of Ramaiah i.e., father defendant No.3 to 8.
17. The defendant No.8 himself examined as DW.1 and his examinationinchief has been filed by way of affidavit, wherein he reiterated the averments made in the written statement and through him the following documents are got marked: Ex.D1 Is the Certified copy of Judgment passed in O.S.NO.5135/80 and O.S.5138/80.
Ex.D2 Is the Certified copy of Decree in O.S.NO.5135/80 and O.S.5138/80.
Ex.D3 Is the Certified copy of Judgment passed by HHCK in RFA.NO.56 and 98/1982.
Ex.D4 Is the rough sketch.
Ex.D5 Is the rough sketch.
Ex.D6 Is the Certified copy of deposition of
B.Ramaiah dated 7101999 in
O.S.NO.5135/80 & 5138/80.
20 O.S.No.1807/2017
Ex.D7 Certified copy of deposition of
Chikkamuniyappa dated 01032000 in O.S.NO.5135/80 & 5138/80 Ex.D8 Is the Certified copy of amended plaint under Order 7 Rule 1 CPC in O.S.NO.5138/80.
Ex.D9 Is the Certified copy of Lease cum sale agreement issued by CITB standing in the name of Sanjeevaiah in respect of site No.9.
Ex.D10 Is the certified copy of sale deed dated 16052008 executed by Ramaiah & sons in favour of Pundarikaksha in respect of site No.9.
Ex.D11 Is the certified copy of Release deed dated 06051982 Ex.D12 Is the certified copy of the order sheet in O.S.NO.894/96.
Ex.D13 Is the certified copy of the plaint in O.S.NO.894/96 Ex.D14 Is the Endorsement issued by BBMP dated 06062023in respect of property No.66/1.
Ex.D15 Is the Property tax receipt issued by BBMP.
Ex.D16 Is the Original partition deed dated 24102001 taken place among Ramaiah & sons.
21 O.S.No.1807/2017Ex.D17 Form - 15 (Encumbrance certificate)
18. In the crossexamination defense taken by the defendant has been suggested, same is denied by the witness, but in crossexamination the witness has stated that: "ನಪ.23 ರಲಲ ತತರಸರವ ಇ.ಎಫ.ಜ.ಹಚ. ಆಸಸ ಯ ಪಶಶ ಮಕಕ 12 ನ ಮಖಖ ರಸಸ ಇದ ಎಎದರ ನಜ. ಪಶಶ ಮದ 12 ನ ಮಖಖ ರಸಸ ಯ ಪವರಕಕ ಕವಲ 5 ಅಡಯಷಷ ಅಗಲದ ಜಗ ಮತತ ಉಳದದ, ಅದ ಮಜರನ ಲಖ ಎಡ ಎಎದರ ಸಳಳ .
ನಪ.23 ರಲಲ ಇ.ಎಫ.ಜ.ಹಚ. ನಎದ
ಗರತಸರವ ಪತ ದಶ ವದಗ ಸರದತಹ
ಜಗ, ನನ ಅದನನ ನನ ಬಡಎಗ ಸಳಳ
ಮಹತ ಕಟಷ ಮಜರನ ಜಗ ಎಎದ
ಮಜರ ಮಡಸಕಎಡರತಸ ತನ ಎಎದರ
ಸಳಳ . ನಪ.23 ರಲಲ ತತರಸರವ ಎ.ಬ.ಸ.ಡ.
ಪತ ದಶವ ಪ-ಪ 80 ಅಡ, ಉ-ದ 20 ಅಡ
22 O.S.No.1807/2017
ಪತ ದಶವನನ ಇಸವ 1964 ರಲಲ ಖರತದ
ಮಡರತಸ ರ ಎಎದರ ಸಳಳ . ವದ ಎಬಸಡ
ಪತ ದಶವನನ ಖರತದ ಮಡದತಹ ಕಲದಲಲ
ಪವರಕಕ ಪಟಷ ತಯಮಮ ನ ಖಲ ಜಗ ಇತಸ
ಎಎದರ ಸಳಳ . ಪಶಶ ಮಕಕ 12 ನ ಮಖಖ ರಸಸ
ಇತಸ ಎಎದರ ನಜ. ದವ ಆಸಸ ಯ ಉತಸ ರಕಕ
ಚಚರ ಇದ ಎಎದರ ನಜ. ದವ ಆಸಸ ಯ
ದಕಕ ಣಕಕ ದವ ಆಸಸ ಯನನ ಮರದ
ಚಕಕ ಬಖ ಟಗಯಖ ಆಸಸ ಯನನ
ಉಳಸಕಎಡರತಸ ರ ಎಎದರ ಸಳಳ .
ನಡ.2 ರ ಅಸಲ ದವ ನನ5138/80 ರ
ಡಕತ ಯಲಲ ನಮದ ಮಡರವ ಸಟನನ9
ರ ಚಕಕ ಬದಗ ಮತಸ ನನಗ ಬಡಎದವರ
ಮಜರ ಮಡದದ ರ ಎಎದ ಹಳವ
ಆಸಸ ಯ ಚಕಕ ಬದಗ ವಖ ತಖ ಸ ಇದ ಎಎದರ
ಸಳಳ . ನಡ.2 ರ ರತತಖ ದವ ಹಕದತಹ
ಕಲದಲಲ ದವ ಆಸಸ ಗ ಪತ ಸಸ ತ ಪತ ಕರಣದ
ವದಯ ಮಲತಕನಗದದ ಎಎದರ ಸಳಳ .
23 O.S.No.1807/2017
ಉದದ ತಶಪವರಕವಗ ಪತ ಸಸ ತ ವದಯನನ
ಪಕಗರರನನ ಗ ಮಡದ ನನನ ತತ
ಸಜತವಯಖ ಮತಸ ಅನತರಮ ಭಟಷ ಸರ
ಡಕತ ಮಡಸಕಎಡದದ ತವ ಎಎದರ ಸಳಳ .
ಸಐಟಬಯವರ ಮಜರನ ಸಟನನ ನನಗ
ಮಜರ ಮಡದದ ರ ಎಎದ ಹಳವ ಬಗಗ
ರಸಲಖ ಷನ ಕಪಯನನ ನಖ ಯಲಯಕಕ
ಕಟಷ ದದ ತರ ಎಎದರ ಸಕಕ ಕಳದಹತಗದ
ಎಎದ ನಡಯತಸ ರ. ನನ ಹಳದತ
ಸಐಟಬಯವರಗಲತ ಬಡಎದವರಗಲತ
ಯವದ ರಸಲಖ ಷನ ಮಡಲಲ ಎಎದರ
ಸಳಳ . ದನ12.10.1973 ರಲಲ ನವಶನವನನ
ನಮಗ ಕಟಷ ದದ ರ ಎಎದ ಹಳವ ಬಗಗ ಹಣ
ಪವತ ಮಡದ ಬಗಗ ಯವದ ರಶತದ
ಕಟಷ ಲಲ , ಸಕಕ ನಡಯತಸ ರ ಸದರ ರಶತದ
ಓ.ಎಸ.ನನ5138/80 ರ ದವಯಲಲ ದ
ಎಎದ. ನನ ಹಳದತ ಯವದ ಸಸ ಧತನ
ಸಟರಫಕಟನನ ಕಟಷ ಲಲ ಎಎದರ ಸಳಳ .
24 O.S.No.1807/2017
ನಪ.23 ರ ನಕಕ ಯಲಲ ನಮದ ಮಡರವ
ಇ.ಎಫ.ಜ.ಹಚ ಪತ ದಶವ ವದಗ
ಸರದತಹ ಜಗ ಎಎದರ ಸಳಳ . ಸಳಳ
ಪತ ಮಣಪತತ ಕ ಸಲಲ ಸ, ಸಳಳ ಸಕಕ
ನಡಯತಸ ದದ ತನ ಎಎದರ ಸರಯಲಲ ."
19. The learned counsel appearing for the plaintiff Sri. BVG vehemently argued that, the plaintiff is claiming the property under registered sale deeds & property of the plaintiff has been illegally granted by the defendant Nos.1 and 2 in favour of father of defendant Nos.3 to 8 which is not permissible in the eye of law. Without acquiring the property of plaintiff, same cannot be granted to anybody including defendant Nos.3 to 8. The defendant Nos.3 to 8 on the guise of grant have illegally encroached the 'B' schedule property and put up a temporary shed in the property of the plaintiff. Therefore, the plaintiff is entitle for possession. Accordingly, prayed to decree the suit.
20. On the other hand, the counsel for defendant Nos.1 and 2 though has not filed any written statement has cross examined the PW.1. The counsel for defendant Nos.3 to 8 vehemently argued that, since Sy.No.134 / 5 was 25 O.S.No.1807/2017 acquired by CITB for formation of sites and on 21061972 CITB has passed resolution to grant site No.9 in favour of Sanjeevaiah. Further, in view of the earlier litigation among Sanjeevaiah and Anantharam Bhat in O.S.NO.5138/80 and O.S.NO.5135/80, it was decreed in favour of Sanjeevaiah, so the defendant Nos.3 to 8 have perfected their title over the suit schedule property. Further, in site No.9 after taking permission the defendant No.8 has constructed the building. Therefore, suit of the plaintiff is liable to be dismissed for declaration and plaintiff is not entitle for any relief. In order to substantiate his arguments he relied upon the following rulings:
1. ILR 2001 KAR 2027
2. 1998 (2) KLJ 274
3. AIR 1979 GUWATI 68
21. On the basis of the above documentary evidence and oral evidence, the court has to verify the plaintiff has proved his title over 'A & B' schedule property & also entitle for possession of 'B' schedule property. Now, at the 1st instance let me verify the property involved in Ex.D2 i.e., properties mentioned in decree in O.S.NO.5138/80 and O.S.NO.5135/80 and plaint schedule 'A' property.
26 O.S.No.1807/2017
PLAINT SCHEDULE PROPERTY SCHEDULE PROPERTY
IN O.S.NO.5135/80
SCHEDULE A SCHEDULE
PROPERTY All piece & parcel of vacant
site bearing No.65/1 situate in
Site bearing No.66/1,
XII Main Road, 2nd block,
Old Kaneshmari No.72/2
Rajajinagar, Bangalore10,
(further old site No.65)
measuring 35ft plus
measuring East to West 80ft,
42ft / 2 x 40 , and bounded
North to South 20ft totally
on the
measuring 1600 sqft situated
East by: Chinnappa's site
at Jooganahalli Gramatana,
West by: XII Main road
2nd block, Rajajinagar, Northby: Conservancy land &
Bangalore10 bounded on: Southby: Gangamma's site
East by: Puttananajamma's Corporation Division
house and vacant No.2.
land;
West by: 12th main Road, SCHEDULE
(old Trust Board Road)
Marginal site No.9, situated
North by: Church, earlier it was in Juganahalli belt area II H.N.Lingaiah's Property; block, Rajajinagar, Bangalore 10, Bounded on: South by: Other portion of the same No. North by: Site No.10 belongs to South by: Site No.8 Chikkabyatagaiah. East by : Bigger site in possession of the plaintiff in Gramathana.
West by: 4th main road Measuring: 25 x 15 x 45ft 2 27 O.S.No.1807/2017
22. The suit schedule property bearing site No.66/1 and Khanesumari No.72/2, where as property claimed by the defendant Nos.3 to 8 on the basis of the grant of site No.9 in favour of Sanjeevaiah. When compared to plaint 'A' schedule boundary & above stated site No.9 i.e., Marginal site, it reveals that particularly, towards western side in the plaint it is mentioned as 12th main road, where as in Ex.D2 it is mentioned as 4th main road. According to the plaintiff, towards Western side in between the property of plaintiff and Western main road there is no property remains to grant the same to Sanjeevaiah. Thus, contended that, the BDA has granted portion of the 'B' schedule property in favour of Sanjeevaiah which is the part and parcel of plaint 'A' schedule. The claim of the plaintiff at the 1st instance on the basis of the Ex.P1 where under one Gangamma on 13091964 sold Kh.No.72/2 in favour of Chikkabyatagaiah measuring East to West 80ft and North to South 35ft. Out of that, the said Chikkabyatagaiah sold the suit 'A' schedule property in favour of the plaintiff under Ex.P22 under registered sale deed dated 11061964 measuring East to West 80ft and North to South 20ft. The vendor of the plaintiff while selling the said property he has retained the Southern portion of the property and sold the remaining in favour of 28 O.S.No.1807/2017 the plaintiff. While mentioning the boundary particularly towards Western side it is mentioned as Trust Board Road and Margin space. Though the defendant had several contention that, Sy.No.134/5 was acquired for formation of sites and the said property was belonged to his ancestors, so the marginal site was granted in favour of Sanjeevaiah. The marginal space had granted in favour of the father of defendant Nos.3 to 8 as per Ex.D9, in the year 1973. In order to grant the marginal land it is expected on part of the BDA to produce some sketch showing what is the marginal land left in between the road and acquired property. In this regard, none of the defendants have produced any sketch showing the said aspect. Further, the defendant Nos. 1 & 2 have not filed any written statement and documents to show that on what basis Marginal sites was granted to Sanjeevaiah. Even the defendant Nos.3 to 8 except production of Lease cum Sale agreement they have not produced the resolution passed by BDA and in pursuance of the Lease cum Sale deed the father of defendant Nos.3 to 8 has taken absolute Sale Deed from the BDA. Mere taking Lease cum sale deed neither the Sanjeevaiah nor the defendant Nos.3 to 8 have become absolute owner of the site No.9.
29 O.S.No.1807/201723. The plaintiff being a purchaser of the suit schedule property at an undisputed point of time i.e., in the year 1964 from the lawful vendors his sale deed has to be believed. Even under Ex.D9 / Ex.P2 no right has been conferred on the Sanjeevaiah or defendant Nos.3 to 8 because it is only a Lease cum sale deed. There is no material produced by the defendants to show that the site of the plaintiff has been acquired and it was granted to father of defendant Nos.3 to 8. Admittedly, towards Eastern side of the 'B' schedule property, he is in occupation of the remaining 'A' schedule property, that means to say whatever property available to the Western side of the 'A' schedule property of the plaintiff is belongs to him because as per the sale deed he is having his property upto the 12th main road, now it has become 4 th main road. On the guise of the Lease cum sale agreement, if the BDA has granted the property of the plaintiff without acquiring the same is nothing but a encroachment of the right of plaintiff over the suit schedule property. In fact, in between the road and the plaintiff property there is no marginal land left by the BDA to give the same to Sanjeevaiah or defendant Nos.2 to 8. Even boundaries mentioned in the Ex.D9 & also boundaries in the Judgment & decree is not tally with the boundaries of the plaintiff 30 O.S.No.1807/2017 shown in the 'A' schedule as well as 'B' schedule. The defendant Nos.3 to 8 without the knowledge of the plaintiff has taken the lease cum sale deed to the Marginal land though not available and whatever the Judgment and Decree passed in Ex.D1 & 2 is not binding on the plaintiff because he is not a party to the said litigation.
24. It is pertinent to note that from the date of Ex.P22 i.e., sale deed dated 11061964 the plaintiff keep on applying for change of Katha, but the BBMP officials for the reasons best known to them they have not accepted Katha in the name of plaintiff. Making use of that, the BDA and father of defendant Nos.3 to 8 colluding together got the Lease cum sale deed from the BDA as per Ex.D9 and BDA without verifying the sale deed of the plaintiff simply issued the Ex.D9, because of that the valuable right of the plaintiff over the suit schedule property is taken away. On the basis of that, the defendants have sold site No.9 in favour of 3rd person only on the basis of lease cum sale agreement though they have no absolute right on it. At an undisputed point of time a ARO, Corporation has issued endorsement to Chikkabyatagaiah in respect of site No.65. Now, the court has to consider what santity has to be given to sale deed Ex.P22 relied by the plaintiff. At this 31 O.S.No.1807/2017 juncture, it is necessary to quote a reported ruling of our Hon'ble High Court reported in ILR 1999 KAR page No.1524 in the matter of A.V.Rangacharya and another V/s. PillaNanjappa and another, it is pleased to hold that, "The presumption U/Sec.17 of the Registration Act, has to follow in respect of the liability and proof of registered sale deed. The effect of a registered document under Sec.49 & 50 of the Registration Act cannot be taken away by merely, asserting that the document is bad. Even under Sec.67 and 68 of the Evidence Act, if it is found that, the document has been presented by the person who executed the document and if he admits execution those documents cannot be attacked as invalid in the eye of law."
The said ruling is aptly applicable to the case on hand because the claim of the plaintiff is on the basis of the sale deed of the year 1964 executed by Chikkabyatagaiah at an undisputed point of time. Therefore, the purpose for 32 O.S.No.1807/2017 which the sale deed is executed has to be upheld. Further, the defendants have utterly failed to prove that, in between the Western Road (Old Trust Board Road / 12th Main Road / 4th Main Road ) and property of the plaintiff after deducting 80ft property, there is a property belonged to CITB, in this regard no such documents are produced by the defendants. Therefore, question of allotting the Marginal property in favour of Sanjeevaiah in Site No.9 does not arise at all and whatever the property given to Sanjeevaiah under Lease cum Sale agreement dated 19101973 is only in the property of the plaintiff & not else where. The claim of the plaintiff is on the basis of 1964 sale deed, whereas claim of Sanjeevaiah is on the basis of Lease cum sale agreement dated 19101973. Therefore, the sale deed of the plaintiff is earlier one, hence there is no hurdle in granting a relief of declaration to the plaintiff. Admittedly, the 'B' schedule property has been encroached by the defendants on the guise of allotment made by the BDA. Therefore, the plaintiff is entitle to get back the possession of the 'B' schedule property. Any construction made in the 'B' schedule property by the defendants by taking license from the BBMP is not enure to their benefit because they have constructed the building on the property of the plaintiff. Therefore, the plaintiff is entitle for Mandatory Injunction 33 O.S.No.1807/2017 also.
25. Whatever the rulings relied by the defendants is not applicable to the case on hand. Further, a litigation taken place among AnantharamBhat and Sanjeevaiah & any litigation interse among the family members by filing a suit by dividing the properties including site No.9 as per Ex.D16 is not take away the right of the plaintiff over the 'A' schedule property and 'B' schedule property. Without any right the defendants are encroached upon the Western portion of the plaintiff's property before filing of the suit. On the basis of the Lease cum sale agreement the defendants have trespassed into the property of plaintiff and put up a structure though they are not having right on it. Therefore, the defendant Nos.3 to 8 shall have to deliver the possession of 'B' schedule property to the plaintiff by demolishing the structure on it. Accordingly, Issue Nos. 1 to 4 are answered in the Affirmative.
26. ISSUE NO.5: For the aforesaid reasons and discussions, I proceed to pass the following: ORDER The suit of the plaintiff is hereby decreed with costs.
34 O.S.No.1807/20171). It is declared that the plaintiff is the absolute owner of the 'B' schedule property as shown in EFGH Area in Ex.P23.
2). It is directed to the defendant Nos.3 to 8 to hand over the vacant possession of EFGH area i.e., 'B' schedule property within 3 months, failing which the plaintiff is at liberty to proceed in accordance with law.
3). Mandatory injunction is also granted to demolish any structure over the 'B' schedule property put by the defendant Nos.3 to 8 and handed over the vacant possession of the same.
4). Draw decree accordingly.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open Court on this the 19th day of June, 2024).
(BALAGOPALAKRISHNA) XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE List of Witnesses examined for the plaintiff :
P.W.1 - V.K.Narayanan List of Documents exhibited for the plaintiff:35 O.S.No.1807/2017
Ex.P1 Is the Certified copy of sale deed dated 13091964 where under one Smt. Gangamma had sold Kh.No.72/2 in favour of Chikkabyatagaiah.
Ex.P2 Is the Certified copy of Lease cum sale agreement dated 19101973 executed by Chairman, CITB in favour of Sanjeevaiah by allotting site No.9.
Ex.P3 Is the Endorsement issued by BBMP.
Ex.P4 Is the Endorsment issued by BBMP standing in the name of Chikkabyatagaiah.
Ex.P5 Is the Tax paid receipt.
Ex.P611 Are the Encumbrance certificates in respect of 'A' schedule property.
Ex.P12 Are the 7 tax paid receipts.
Ex.P13 Is the Endorsement issued by BDA Ex.P14 Is the Office copy of legal notice issued to Commissioner, BDA.
Ex.P15 Is the Postal Acknowledgment Ex.P16 Is the Acknowledgment issued by 36 O.S.No.1807/2017 BBMP Ex.P17 Is the Certified copy of sale deed dated 16052008 executed by Dy.Secretary BDA in favour of Ramaiah & sons.
Ex.P18 Is the Office copy of legal notice Ex.P19 Is the Postal acknowledgment Ex.P20 Is the Office copy of legal notice Ex.P21 Is the Postal Acknowledgment.
Ex.P22 Is the Original Deed of Sale dated 11th June 1964 executed by Chikkabyatagaiah in favour of plaintiff.
Ex.P23 Is the Rough sketch of
Khanesumari No.72/2 old No.65,
new number 66/1.
Ex.P24 Is the EC Property details in
Document No.16,
28th July 2016.
Ex.P25 Is the Certified copy of Form A /
Application under Section 6(1) & 7(1)of the The Right to Information Act, 2005.
List of Witnesses examined for the Defendant :
DW.1 : J.R.Pundarikaksha 37 O.S.No.1807/2017 List of Documents exhibited for the defendant:
Ex.D1 Is the Certified copy of Judgment
passed in O.S.NO.5135/80 and
O.S.5138/80.
Ex.D2 Is the Certified copy of Decree in
O.S.NO.5135/80 and O.S.5138/80.
Ex.D3 Is the Certified copy of Judgment passed by HHCK in RFA.NO.56 and 98/1982.
Ex.D4 Is the rough sketch.
Ex.D5 Is the rough sketch.
Ex.D6 Is the Certified copy of deposition of
B.Ramaiah dated 7101999 in
O.S.NO.5135/80 & 5138/80.
Ex.D7 Certified copy of deposition of
Chikkamuniyappa dated 01032000 in O.S.NO.5135/80 & 5138/80 Ex.D8 Is the Certified copy of amended plaint under Order 7 Rule 1 CPC in O.S.NO.5138/80.
Ex.D9 Is the Certified copy of Lease cum sale agreement issued by CITB standing in the name of Sanjeevaiah in respect of site No.9.
Ex.D10 Is the certified copy of sale deed dated 16052008 executed by Ramaiah & sons in favour of Pundarikaksha in respect of site No.9.
Ex.D11 Is the certified copy of Release deed dated 06051982 38 O.S.No.1807/2017 Ex.D12 Is the certified copy of the order sheet in O.S.NO.894/96.
Ex.D13 Is the certified copy of the plaint in O.S.NO.894/96 Ex.D14 Is the Endorsement issued by BBMP dated 06062023in respect of property No.66/1.
Ex.D15 Is the Property tax receipt issued by BBMP.
Ex.D16 Is the Original partition deed dated 24102001 taken place among Ramaiah & sons.
Ex.D17 Form - 15 (Encumbrance certificate) XXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.39 O.S.No.1807/2017