Bangalore District Court
Unknown vs The Commissioner on 28 May, 2020
IN THE COURT OF THE III ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY (CCH No.25).
Dated: This the 28th day of May, 2020.
Present: Sri. SACHIN KAUSHIK R.N., B.Sc., LL.M.,
III Addl.City Civil & Sessions Judge, Bengaluru.
O.S.No. 5126/2017
Plaintif Shri. Ramasubbu,
S/o. R.Choudappa,
Aged about 66 years,
R/at No.375, Talakaveri Layout,
Amruthalli, Bengaluru -560092.
By Sri. A.V.Vijaya Bhaskar Reddy, Advocate.
vs.
Defendants 1. The Commissioner,
Bruhath Bengaluru Mahanagara Palike,
N.R.Square, Bengaluru -560002.
2. The Executive Engineer,
Bruhath Bengaluru Mahanagara Palike,
Kodigehalli Sub-Range, No.2127/18,
Sahakara Nagara, Kodigehalli,
Bengaluru -560092.
3. The Assistant Executive Engineer,
Bruhath Bengaluru Mahanagara Palike,
Kodigehalli Sub-Range, No.2127/18,
Sahakara Nagara, Kodigehalli,
Bengaluru -560092.
D1 to D3 - By Sri. Shivananda Meti, Advocate.
2
O.S.No. 5126/2017
Date of Institution 27-07-2017
Nature of Suit Perpetual Injunction
Date of commencement of 27-09-2018
Evidence
Date of pronouncement of 28-05-2020
Judgment
Total Duration: Years Months Days
02 10 01
JUDGMENT
The Plaintif has filed this Suit against the Defendants No.1 to 3 for Perpetual Injunction restraining the Defendants No.1 to 3, and their men from demolishing any portion of Suit Schedule Building or interfering with Plaintif's construction of building in Suit Schedule 'A' and 'B' Properties. Suit Schedule 'A' Property is Site No.375, measuring 2646 square feet, having Khata No.1250/746/375, in Talakaverinagara, Yelahanka Hobli, Bengaluru North. Suit Schedule 'B' Property is Site No.375, measuring East to West (60+66)/2 feet and North to South (8.8+4.5)/2 feet, i.e., 419 square feet in the same area.
2) The Plaintif states that he has purchased the Suit Schedule 'A' Property by Registered Sale Deed Dated 11-2-2002 from his Vendor Smt.P.P.Khadija W/o. G.M.Hayat. He states that Suit Schedule 'A' Property is 3 O.S.No. 5126/2017 part and parcel of the Layout formed by Talakaveri House Building Co-operative Society Ltd., and the Layout is called as 'Talakaveri Nagara'. The Plaintif purchased Suit Schedule 'B' Property, which is odd sized land abutting his Suit Schedule 'A' Property by Registered Sale Deed Dated 28-2-2005 from M/s.Talakaveri House Building Co-operative Society Ltd. The Plaintif, after obtaining License and Approval, has constructed residential house in Suit Schedule 'A' and 'B' Properties, and is residing in the same.
3) The Plaintif further states that on 22-4-2017 he received Letter from Defendant No.3, The Assistant Executive Engineer, B.B.M.P., Kodigehalli Sub-Range, Bengaluru, that the Plaintif has encroached the Road, and constructed compound wall, and the Defendant No.3 directed Plaintif to produce the documents pertaining to Suit Schedule Property. The Defendant No.3 issued the said letter on the basis of instigation of Talakaveri Nagara Residents' Welfare Association, and has stated that he has not encroached any portion of the road, and a false Letter has been issued to him, and hence he has filed the instant Suit.
4O.S.No. 5126/2017
4) The Defendants No.1 to 3 have filed Written Statement that the Plaintif has encroached the Road maintained by B.B.M.P., i.e., Suit Schedule 'B' Property. The Plaintif has also not issued mandatory Notice u/S.482 of K.M.C. Act, and hence, for these reasons, have prayed for dismissal of the Suit.
5) The Court has framed the following 4 Issues:
1. Whether the Plaintif proves his lawful possession and enjoyment over the Schedule Property as on the date of Suit?
2. Whether the Plaintif proves the unlawful interference?
3. Whether the Plaintif is entitled for the reliefs as prayed for?
4. What Order or Decree?
6) a) The Plaintif has examined himself as P.W.1, and got 8 Documents exhibited.
b) The Defendants have not lead any evidence.
7) The Advocate for Plaintif has submitted that his Arguments be taken as heard, and so also Advocate for Defendants.
5O.S.No. 5126/2017
8) The answers to the above Issues are:
Issue No.1 - Partly in the Affirmative, Issue No.2 - Partly in the Affirmative, Issue No.3 - Partly in the Affirmative, Issue No.4 - As per Final Order, for the following:
REASONS
9) a) Issues No. 1 to 3 : As Issues No.1 to 3 are interconnected, they are taken together for consideration.
b) Plaintif/P.W.1 has produced his Original Sale Deed dated 11th December 2002, Ex.P1. Ex.P1 shows that the Schedule Property purchased is Khata No.1250/746/375, Site No.375, measuring East- West (60+66)/2 feet and North- South (27+57)/2, i.e., 2646 square feet, i.e., Suit Schedule 'A' Property. The Approved Building Plan, Ex.P6 also shows Site No.375.
Ex.P3, Khata Certificate is also with respect to Suit Schedule 'A' Property. Ex.P4, Property Register Extract, is also with respect to Suit Schedule 'A' Property that specifically shows the measurement as (60+66)/2 x (27+57)/2 feet. All these documents clearly establish ownership, and lawful possession of the Plaintif over Suit Schedule 'A' Property.
6O.S.No. 5126/2017
c) Plaintif/P.W.1 has produced his Sale Deed dated 28-2-2005, which is marked as Ex.P5 with respect to Suit Schedule 'B' Property. There is no Khata Certificate or Property Register Extract or Khata Extract in the name of Plaintif with respect to Suit Schedule 'B' Property. The Defendants' bone of contention is that the Suit Schedule 'B' Property is Road maintained by them. As such, Plaintif/P.W.1 ought to have proved Sale Deed, Ex.P5, as required u/S.68 of Indian Evidence Act, by getting the Executant's Signature identified and marked, and examining any one attesting witness. The same is not done, and Ex.P5 stands not proved, as required under said S.68 of Indian Evidence Act. In addition, there being no document to show that Suit Schedule 'B' Property stood in the name of the Vendor of Plaintif, that could be sold, the Court finds that the Plaintif has utterly failed to prove his ownership/title/lawful possession over Suit Schedule 'B' Property. So far as Suit Schedule 'B' Property is concerned, the Court finds that there is no prima-facie case in favour of Plaintif. Irreparable loss and balance of convenience also do not stand in favour of Plaintif with respect to Suit Schedule 'B' Property. The decision reported in AIR 2010 SC Pg.296 also lays that when prima-facie 7 O.S.No. 5126/2017 case is not proved, the concerned Party is not entitled for Injunction, and the same is applicable here also. Accordingly, Issues No.1 to 3 are answered Partly in the Affirmative , with respect to Suit Schedule 'A' Property only.
10) Issue No.4 : For the aforesaid reasons, this Court proceeds to pass the following:
ORDER The Suit of the Plaintif is Partly Decreed.
The Defendants No.1 to 3, and their men are restrained by Order of Perpetual Injunction from demolishing the building of Plaintif in Suit Schedule 'A' Property, if it is not in contravention of the Approved Building Plan.
Parties shall bear their own costs.
Draw Decree accordingly.
(Dictated to the Judgment Writer, transcription computerized, then corrected and pronounced by me in Open Court on this the 28th day of May, 2020.) (Sachin Kaushik R.N.) III Addl. City Civil & Sessions Judge, Bengaluru.8
O.S.No. 5126/2017 SCHEDULE Schedule -A Property:
All that piece and parcel of the property bearing Site No.375, in total measuring East-West (60+66)/2 and North- South (27+57)/2 total 2646 Sq. Ft. having Khata No.1250/746/375 situated at BBMP Ward No.7, Talakaverinagara, Yelahanka Hobli, Bengaluru North Taluk and same is bounded on :
East by - Site No.374, West by - 3rd Cross Road, North by - 60 Ft. Road, South by - Site No.376. Schedule -B Property:
All that piece and parcel of residential additional land in Site bearing No.375, in the layout formed by the Talakavery House Building Co-operative Society Ltd., Bengaluru, in the land bearing Sy.No. 5/1, 5/2, 5/3, 5/4, 5/5, 6/1, 7, 9/1, 9/2, 10/4, 11/1, 11/2, 11/3, 11/4, 11/5, 11/6, 12/1, 12/2, 12/3, 12/4 at Amruthahalli Village, Yelahanka Hobli, Bengaluru North Taluk, named as 'Talakaveri nagar' measuring East to West 60+66/2 feet and North to South 8.8+4.5/2 feet:
Measuring: East to West = 60+66/2, North to South = 8.8+4.5/2 In all total = 63x13.3/2 419 sq. ft.
And bounded on:
East by - Site No.374, West by - 3rd Cross Road, North by - 60 Ft. Road, South by - Site No.376.9
O.S.No. 5126/2017 ANNEXURE List of witnesses examined for the Plaintif:
P.W.1 - Ramasubbu List of documents exhibited for the Plaintif:
Ex.P1 - Original Sale Deed dated 11.12.2002 Ex.P2 - Certified Copy of Sale Deed dated 28.2.2005 Ex.P3 - BBMP Khata Certificate Ex.P4 - BBMP Khata Extract Ex.P5 - Original Sale Deed dated 28.2.2005 Ex.P6 - Building Plan Ex.P7 - BBMP Tax Paid Receipt Ex.P8 - Letter of AEE, BBMP, dated 22-4-2017 List of witnesses examined and documents exhibited for the Defendants:
Nil (Sachin Kaushik R.N.) III Addl. City Civil & Sessions Judge, Bengaluru.