Bangalore District Court
Sri Chandraiah vs Jayamma on 12 July, 2018
C.R.P. 67) Govt. of Karnataka
Form
No.9(Civil)
Title sheet
for
Judgment in
Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF XVI ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CITY.
(CCH.NO.12)
PRESENT : SRI R.Y. SHASHIDHARA,
B.Com.,LL.B.,
XVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY.
DATED THIS 12TH JULY, 2018
ORIGINAL SUIT NO.1839/2011
*****
PLAINTIFF: Sri Chandraiah,
Aged about 67 years,
S/o Arasappa @ Channaiah,
R/at No.520, New No.541,
4th Main, Kamala Nagar Slum Area,
Bangalore - 560 079.
(By Sri K.U.M., Advocate)
- Vs -
DEFENDANTS: 1. Jayamma,
W/o Ningaiah,
Aged about 56 years,
No.520, 4th Main,
Kamala Nagar Slum Area,
Bangalore - 560 079.
2. The Tahasildar,
Bangalore North Taluk,
Bangalore.
2 OS No. 1839/2011
3. The Commissioner,
State Slum Clearance Board,
Resaildar Street,
Sheshadripuram,
Bangalore -560 020.
4. The Commissioner,
BBMP, Bangalore.
(For D-1 by Sri B.L., Advocate)
(For D-2 : Exparte)
(For D-3 by Sri B.P.R., Advocate)
(For D-4 by Sri S.N.P., Advocate)
Date of institution of the suit 09-03-2011
Nature of the suit: Declaration, permanent injunction
and mandatory injunction.
Date of the commencement of 11-11-2011
recording of the evidence:
Date on which the Judgment was 12-07-2018
pronounced
Total duration Year/s Month/s Day/s
07 04 03
JUDGMENT
This suit is filed by the plaintiff for declaring that he is the owner of the suit schedule property and directing the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property.
2. In the plaint the plaintiff stated as follows :-
As per the plaint suit schedule property described as property old No.520 New No.541, measuring 18x36 feet, 3 OS No. 1839/2011 situated at Kamalanagar slum Area, Kamalanagar, previously known as Sanaguruvanahalli, Banglaore - 560 079.
3. It is stated that the suit schedule property allotted to the plaintiff by the Government of Karnataka under Ashraya Yojane by way of issuing Hakku Pathra dated 21-05-1992. Since from the date of allotment, he is in peaceful possession of the suit schedule property. He constructed house and living in the said property and took electricity connection to the said house. In the year 1980-81 Saneguruvanahalli Village Panchayath issued Demand register in his name. He approached the defendant No.4 for Khatha. But they have refused the same.
4. It is stated that the defendant No.1 has no right, title and possession over the suit schedule property. The plaintiff and his family members were away for some time in their village. At that time the defendant No.1 was trying to encroach on the portion of the suit property by way of creating some documents, she claiming that the schedule property belongs to her. The defendants curtailing the plaintiff's right to enjoy the suit property. 4 OS No. 1839/2011
5. It is stated that the defendant No.1 had filed Writ Petition No.880/1993 before Hon'ble High Court of Karnataka. The Hon'ble court passed an order that the defendant No.1 unable to establish her right over the suit schedule property and directed the parties to approach the appropriate Court. But till today the defendant No.1 failed to approach any court of law. Now she is trying to disturb the plaintiff's peaceful possession and enjoyment of the suit schedule property. She also lodged false complaint against the plaintiff before jurisdictional police. Hence the plaintiff constrained to file the suit and prayed for decree.
6. In pursuance of suit summons issued by this court, the defendant No.1, 3 and 4 have appeared through their counsels. The defendant No.1 filed written statement with counter claim. The defendant No.3 and 4 have filed written statement. The defendant No.2 has not appeared and placed exparte.
7. In the counter claim the defendant No.1 prayed for dismissal of the suit of the plaintiff, declaring that alleged Hakku pathra dated 21.05.1992 issued by the defendant No.2 in favour of plaintiff in respect of suit schedule property is not 5 OS No. 1839/2011 binding on her. Issue mandatory injunction and directing the defendant No.3 and 4 to demolish the unauthorized construction (DEFGD portion as shown in the rough sketch along with written statement and counter claim) put up in front of her house. Directed the plaintiff to demolish the unauthorized construction (DEFGD portion) within particular period and if he fails to do the same, it is permitted her (defendant No.1) to demolish the same at the cost of the plaintiff.
8. The defendant No.1 in the written statement and counter claim stated as follows:
The plaintiff is a court bird, he has filed the suit knowing fully well that the claim made in the plaint is illegal, false, frivolous and vexatious. He has suppressed the fact concerning to the property bearing 520 (New No.541), situated at 4th Cross, Kamalanagar Slum Area, Kamalanagar now called as Sanjayagandhi Nagar, Bangalore 79. This property is measuring 18x33 feet. Defendant shown this property as Schedule-A of the counter claim.
9. It is stated that the suit of the plaintiff is not maintainable due to non issue of statutory notice to the 6 OS No. 1839/2011 defendant No.2 to 4. The defendant No.3 and 4, their authorities have colluded with the plaintiffs, in order to get the order in favour of the plaintiff, have fabricated the documents. Boundaries given to the suit property by the plaintiff are fabricated and forged. To deprive the right of the defendant No.1 over the Schedule 'A' property, the defendant No.2, 3 and plaintiff have created false documents. It is stated that the defendant and her family members are residing in the 'A' schedule property since 1977 and earlier.
10. It is stated that the State of Karnataka exercising its power under the provisions of the Karnataka Slum Area (Improvement and Clearance) Act, 1973 has declared the lands and sheds thereon in Sy.No.46 and other survey numbers lands of Saneguruvanahalli Village. The counter claim property i.e., 'A' schedule property is also included in the said declared area.
11. It is stated that on 16.03.1990 the defendant No.3 has passed an order and registered the name of the defendant No.1 as an occupant in respect of "A" schedule property. It is directed the plaintiff to clear off the unauthorized construction put up by him in front of 'A' schedule property. The plaintiff 7 OS No. 1839/2011 has not challenged the above said order. In pursuance of order of defendant No.3, the defendant No.1 has deposited occupancy price amount. She filed application before the defendant No.3 to take action against the plaintiff for remove the unauthorized construction. The defendant No.3 has passed an order and directed the plaintiff to clear off unautohrised construction.
12. The plaintiff has challenged the above said order passed by the defendant No.3 before the Government of Karnataka by way of appeal. Suppressing about the said appeal, he had filed Writ Petition No.9847/1990 before Hon'ble High Court of Karnataka. The defendant No.1 herself impleaded in the said writ petition. Hon'ble Court dismissed the said writ petition and directed the plaintiff to pursue his appeal before the State Government. As per the order of Hon'ble High Court, after hearing the appeal, the State Government dismissed the plaintiff appeal on 22-04-1991. Again the plaintiff had filed Writ Petition No.10930/1991 and prayed for quashing of order dated 22-04-1991. On 01-07-1996 Hon'ble High Court allowed the said writ petition, quash the order passed by State Government on 10-04-1990 and 22-04-1991, reserving the liberty to the board to initiate action under Section 5C or 8 OS No. 1839/2011 any other provision of Act for demolition or removal of alleged unauthorized structure.
13. On 16/21-11-1996 the defendant No.3 had passed an order. The plaintiff had challenged the said order by way of filing writ petition No.33656/1996. Hon'ble High Court directed the defendant No.3 Board to initiate appropriate proceedings. As per the order of Hon'ble Court the defendant No.3 issued Show Cause notice to the plaintiff on 14.02.1997 and passed preliminary order, directing the plaintiff to remove the unauthorized construction. The defendant No.1 has filed Writ Petition No.22209/2000 and prayed for issue a writ of mandamus to the defendant No.3 board to implement the orders passed in WP No.10930/1991 and WP No.33656/1996. As per the order of Hon'ble High Court the defendant No.3 has not taken any action to demolish the unauthorized construction. Therefore, the defendant No.1 had filed W.P.No.27209/2000 before Hon'ble High Court of Karnataka and sought for direction to implement the order dated 01-07- 1996 passed in WP No.10930/1991. Again Hon'ble High Court passed an order on 28-02-2001 and directed the defendant No.3 to dispose off the matter and if there is any refusal of 9 OS No. 1839/2011 passing such order the defendant No.1 can approach the Hon'ble High Court.
14. It is stated that alleged Hakku pathra claimed by the plaintiff is fabricated and forged document. The suit schedule property vested with the defendant No.3 under Section 2A of Karnataka Slum Clearance Board Act. The Deputy Commissioner and Tahsildar had no power to allot the suit property in favour of the plaintiff by way of issuing Hakku pathra. Hence, the said Hakku pathra is void abi-nitio, it will not convey any right, title and interest to the plaintiff. The said Hakku pathra is not binding on the defendant No.1. Description of the suit schedule property is contrary to the alleged Hakku pathra. It is denied that the plaintiff having title and possession over the suit schedule property. It is stated that taking into law in to his hands, by over night the plaintiff put up unauthorized construction in front of the property of the defendant No.1. He colluded with BESCOM authorities and obtained electricity connection. He colluded with local authorities and obtained assessment extract. Therefore, the defendant No.4 refused to transfer khatha in the name of the plaintiff. The Slum Board had passed an order and given findings that by over night the plaintiff constructed 10 OS No. 1839/2011 unauthorized construction in front of the house of the defendant No.1 (property No.501). Hon'ble High Court, Slum Board and BBMP passed an order for demolition of the above said unauthorized construction put by the plaintiff.
15. It is stated that 'A' schedule property allotted the defendant No.1 on 16-03-1990, till today the plaintiff has not challenged the same. As per the direction of Hon'ble High Court of Karnataka in WP No.10930/1991, the defendant No.3 and 4 have not initiated any proceedings as per section 5C of the Act. They have colluded with the plaintiff and have not taken any action for removal of unauthorized construction. Hence the defendant No.1 prayed in the counter claim that alleged hakku pathra of the plaintiff is not binding on her and demolition of unauthorized construction of the plaintiff in front of the A schedule property.
16. It is stated that the defendant No.1 is owner and in possession of the 'A' schedule property. The cause of action for filing counter claim arise when the suit summons of this case served on the defendant No.1. The plaintiff is to be directed to demolish the unauthorized construction put up in front of the 'A' schedule property. From the above mentioned 11 OS No. 1839/2011 grounds the defendant No.1 prayed for dismissal of the suit of the plaintiff and allow the counter claim.
17. The defendant No.3 in the written statement stated as follows:
It is not with in the knowledge of this defendant that the suit schedule property allotted to the plaintiff by way of Hakku pathra. It is denied that the plaintiff constructed small dwelling house in the suit property and took a electricity connection. The said construction of the plaintiff is unauthorized. It is denied that the defendant No.1 created documents, claiming her right over the suit property and trying to encroach the portion of the suit property. It is denied that the defendants are curtailing the rights of the plaintiffs to enjoy the suit property.
18. It is stated that in WP No.880/1993, on 23.11.1999 Hon'ble High Court of Karnataka passed an order and give direction to the Commissioner, BBMP to initiate appropriate proceeding under KMC Act by issuing notice to the concerned parties to remove the unauthorized construction alleged to have put up by the plaintiff after following the procedure as required under law. But the plaintiff suppressed facts 12 OS No. 1839/2011 regarding the order passed in said writ petition. It is denied the ownership and possession of the plaintiff over the suit property. In the writ petition it was held that alleged construction put by the plaintiff over the suit property is unauthorized one and he is not entitled for discretionary relief. There is no cause of action to file this suit. This defendant is not a necessary party to the suit. From the above said grounds the defendant No.3 prayed for dismissal of the plaintiff suit with exemplary cost.
19. The defendant No.4 in the written statement stated as follows:
This defendant is not a necessary party to the suit. The suit of the plaintiff for bare injunction in the absence of declaration and possession is not maintainable. Because the dispute between the plaintiff and defendant No.1 in respect of identity, title and possession of the suit property. It is denied that the plaintiff is the owner, in possession and enjoyment of the suit schedule property. The plaintiff is not entitled for any relief as prayed in the suit. Hence the defendant No.4 prayed for dismissal of the suit of the plaintiff.13 OS No. 1839/2011
20. It is seen from the records that, initially the plaintiff filed the suit for bare injunction. In the written statement the defendants taken contention that without declaration of title the suit of the plaintiff is not maintainable. Then the plaintiff got amendment to plaint and sought for the relief of declaration of title.
21. The defendant No.1 has filed additional written statement and stated that initially the plaintiff filed the suit for bare injunction. She has filed written statement with counter claim. The plaintiff has suppressed the material facts in respect of proceedings initiated by the defendant No.3 under Section 5 of the Karnataka Slum Area (Improvement and Clearance) of 1973 for demolition of unauthorized construction by the plaintiff in front of the property of defendant No.1. The plaintiff also suppressed the proceedings initiated by the defendant No.4 under Section 321 of Karnataka Municipal Corporation Act. It is stated that the prayer sought by the plaintiff for declaration of title over the suit schedule property is barred by limitation. The plaintiff is not entitled for relief's as prayed for. Therefore, the defendant No.1 prayed for dismissal of the suit of the plaintiff. 14 OS No. 1839/2011
22. It is seen from the records that the defendant No.1 filed counter claim and sought for the relief of declaration and mandatory injunction. But, the plaintiff has not filed rejoinder/reply to the above said counter claim.
23. On the basis of the pleadings of both parties, my learned Predecessor has framed the following issues :-
1. Whether the plaintiff proves that he was in lawful possession and enjoyment of the suit schedule property as on the date of suit ?
2. Whether the plaintiff proves the alleged interference ?
3. Whether the 1st defendant proves that plaintiff put up illegal construction ?
4. Whether the suit for bare injunction is not maintainable without seeking the relief of declaration ?
5. Whether the suit is not maintainable for not issuing of statutory notice ?
6. Whether the plaintiff is entitled for the relief of injunction as sought for ?
7. Whether the 1st defendant is entitled for mandatory injunction ?
8. What order or decree ?
ADDITIONAL ISSUE DATED 28-08-2015
1. Whether the defendant No.1 is entitled for the relief of declaration as prayed in the counter claim ?
15 OS No. 1839/2011ADDITIONAL ISSUE DATED 18-07-2017
1. Whether the plaintiff proves that he is the owner of the suit schedule property ?
2. Whether the defendants prove that the suit of the plaintiff in respect of declaration of title is bared by limitation ?
3. Whether the defendant No.1 is entitle for the relief of mandatory injunction as prayed in prayer 'B' of the counter claim ?
24. In order to prove his case, the plaintiff himself examined as PW-1. Son of the plaintiff - C. Nagaraj examined as PW-2. Documents got marked Ex.P1 to P8. The defendant No.1 examined herself as DW-1. Documents got marked Ex.D1 to D49. Assistant Executive Engineer of the defendant No.3 examined as DW-2. No documents got marked from the defendant No.3 side. Defendant No.4 has not adduced oral evidence and produced documents.
25. Heard the arguments.
26. My answer to the above issues are as follows:-
ISSUE NO.1 : In the negative
ISSUE NO.2 : In the negative
ISSUE NO.3 : In the affirmative
ISSUE NO.4 : Does not arise for consideration
16 OS No. 1839/2011
ISSUE NO.5 : In the negative
ISSUE NO.6 : In the negative
ISSUE NO.7 : In the affirmative
ISSUE NO.8 : As per final order for the
following :
ADDL. ISSUE NO.1 : In the affirmative
DT: 28-08-2015
ADDL. ISSUE NO.1 : In the negative
DT: 18-07-2017
ADDL. ISSUE NO.2 : In the affirmative
DT: 18-07-2017
ADDL. ISSUE NO.3 : In the affirmative
DT: 18-07-2017
REASONS
27. ISSUE NO.1 AND ADDITONAL ISSUE NO.1 DATED 18-07-2017:- These two issues are interconnected. Therefore for the purpose of avoiding repeated discussion, I taken up these issues together for consideration.
In the plaint and PW1 in his examination in chief stated that the plaintiff is the owner, in possession and enjoyment of the suit schedule property. On 21-05-1992 said property allotted to the plaintiff by way of Hakku pathra No.15622 by Government of Karnataka. Since, he is in peaceful possession of the said property. He constructed small dwelling house in the suit schedule property and living therein. He obtained electricity connection from BESCOM to the said house. In the 17 OS No. 1839/2011 year 1980-81 Saneguruvanahalli Gram Panchayath issued Demand Register Extract in the name of the plaintiff.
28. To prove his case, the plaintiff has produced alleged Hakku Pathra dated 21-05-1992 and got marked as Ex.P1. It is mentioned that the Tahsildar, Bangalore North Taluk, Bangalore issued the said Hakku Pathra in the name of plaintiff - Chandraiah S/o. Channaiah in respect of site No.541 measuring 18x36 feet situated at Sy.No.46 of Saneguruvanahalli Village. The defendants in the written statement specifically denied that the Government has allotted the suit schedule property through Hakku Pathra in the name of plaintiff and by virtue of said Hakku Pathra the plaintiff is the owner and possession of the same. The defendant No.1 in para 4 of the written statement stated that the defendant No.2 and authorities of defendant No.3 and 4 have colluded with the plaintiff, fabricated the documents and passed an order to the tunes of the plaintiff. She further stated that the boundaries furnished in the plaint and alleged Hakku Pathra are fabricated and forged.
18 OS No. 1839/2011
29. In their cross-examination of PW.1 and PW.2 have not submitted application for Hakku pathra. It was suggested that the boundaries mentioned in the Hakku pathra and plaint schedule are not tallied, before issuing Hakku pathra there was an order for demolition of shed constructed by him, he has created the said Hakku pathra by way of tampering. It was further suggested that the suit schedule property allotted to the defendant No.1, he has created false and bogus documents for the purpose of this case, he is not residing in the suit schedule property. But, PW.1 has denied the same.
30. I have carefully perused the Ex.P1 Hakku Pathra and oral evidence of PW.1, PW2. From bare seeing of the said document it clearly shows that it has been filled in 3 types of pens. It is found three persons hand writing in the Hakku Pathra. Location of the property and address of the allottee is written by one person, name of the plaintiff, measurement and boundaries written by another person and site number written by some other person. It is further found that site No.542 has been over write into site No.541. I am of the opinion that the plaintiff has not explained before this court about three types of hand writing and over write of site 19 OS No. 1839/2011 number in Ex.P1 of Hakku Pathra. It is noted that the plaintiff sought for the relief of declaration of title on the basis of the alleged Ex.P1. I am of the opinion that the burden heavily upon him to prove the Ex.P1 with cogent oral and documentary evidence. I have perused the boundaries mentioned in Ex.P1 and plaint schedule. In the plaint schedule the boundaries mentioned to the suit property reads as follows:
East by No 542 West by 540 South by Sundaramma North by Road In Ex.P1 boundaries mentioned as follows:
¥ÀǪÀðPÉÌB ¸ÀÄAzÀgï ¥À²ÑªÀÄPÉÌ BZÀAzÀæAiÀÄå GvÀÛgÀPÉÌ B gÀ¸ÉÛ zÀQëtPÉÌ B gÀ¸ÉÛ
31. From perusal of the same, I am of the opinion that measurement of the property mentioned in plaint schedule and Ex.P1 are one and the same. But boundaries are not one and the same. Moreover, as discussed above there is a over write in the Ex.P1 in respect of site number. That document filled in different hand writing. The plaintiff has not explained 20 OS No. 1839/2011 before this court about changing of boundaries, over write of site number and using different pens in filling of Ex.P1. Therefore, I am of the opinion that the plaintiff has not furnished correct description and boundaries to the suit schedule property. In this suit the plaintiff's sought for declaration of title and permanent injunction in respect of the suit schedule property. Therefore it is his duty to furnish correct description and boundaries of the suit property.
32. As per the plaintiff Ex.P1 - Hakku pathra issued on 21- 05-1992. In the plaint, PW.1 and PW.2 in their evidence and also in Ex.P5 of legal notice it is specifically stated that since from the date of issue of Hakku pathra (21-05-1992) the plaintiff is in possession and enjoyment of the suit schedule property. As per the records prior to issue of Ex.P1, serious disputes in between the plaintiff and defendant No.1 in respect of suit schedule property before the Government, defendant No.3 and Hon'ble High Court of Karnataka. PW.1 and 2 in their evidence stated that dispute between the plaintiff and the defendant No.1 since 35 years in respect of suit property. I am of the opinion that during the time of dispute, issuance of Ex.P1 to the plaintiff is very doubtful. 21 OS No. 1839/2011
33. It is admitted fact that the suit schedule property previously belongs to the defendant No.3 i.e., State Slum Clearance Board. PW.1 in his cross-examination specifically admitted the suggestion put by the defendant No.1 side that originally suit schedule property belongs to slum area and previously said authority supervising the said property. PW.2 in his cross-examination has admitted that previously suit property was in slum clearance board limits. The contention of the defendant that the State of Karnataka exercising its power under the provisions of Karnataka Slum Area(Improvement and Clearance) Act, 1973 declared the lands and sheds in Sy.No.46 and other survey numbers of Saneguruvanahalli village as slum area is also not disputed by the plaintiff. Moreover, the correspondence letters, orders passed by the defendant No.3 and 4, orders passed by the Hon'ble High Court is clear that previously suit schedule property was belongs to Slum Clearance Board. But, Ex.P1 issued by defendant No.2 (Tahsildar, Bangalore South Taluk) to the plaintiff in the year 1992. I am of the opinion that as on the date of issue of Ex.P1 the defendant No.2 had no title and right to allot the suit property to the plaintiff. Because the said property was vested with defendant No.3. Therefore, 22 OS No. 1839/2011 I am of the opinion that without title and right over the suit property, the defendant No.2 illegally issued Ex.P1 in favour of the plaintiff and allotted the suit property. To prove that as on the date of issue of Ex.P1 the suit property was under the ownership of defendant No.2, no documentary evidence produced by the plaintiff. I am of the opinion that through Ex.P1 no title, right an interest created in favour of the plaintiff. Further I am of the opinion that on the basis of defective and doubtful document of Ex.P1, the plaintiff cannot claiming his title over the suit property.
34. The plaintiff has produced two customer ID (bills) issued by BESCOM for the month of February 2005 and October 2004 respectively and got marked as Ex.P2 and P3. These bills are in the name of plaintiff in the address of suit schedule property. The plaintiff has not produced electricity bills in respect of suit property as on the date of filing of the suit.
35. The plaintiff has produced demand register extract for the year 1980-81 issued by Secretary, Saneguruvanahalli Village Panchayath and got marked as Ex.P4. It is mentioned 23 OS No. 1839/2011 that the plaintiff is owner and in possession of property No.92/new 520 of Saneguruvanahalli. It is pertinent to note that Ex.P4 issued prior to 9 years from the date of Ex.P1. From careful perusal of the said document it is nowhere mentioned that on what basis the name of the plaintiff entered in the tax assessment register. Because in this case it is the specific case of the plaintiff that he is in possession and enjoyment of the suit schedule property only from the date of issue of Ex.P1 (Hakku Pathra). The said Ex.P1 issued on 21-05-1992. PW.1 and PW.2 in their evidence and in Ex.P5 of legal notice also mentioned that the plaintiff is in possession of the suit property from the date of Ex.P1. It is not the case of the plaintiff that prior to Ex.P1 he was in possession of the suit property. He also not produced any documentary evidence in this regard. PW.2 in his cross- examination stated that at the time of payment of tax to the suit property the name of the plaintiff mentioned in Ex.P4. But, the plaintiff has not produced any tax paid receipts. It was suggested to the PW.2 that they have created Ex.P4 for the purpose of this case. But, he answered that his father will knowing the same. Considering the same, I am of the opinion that on the basis of Ex.P4 this Court cannot held that the 24 OS No. 1839/2011 plaintiff is owner of the suit schedule property. The plaintiff has not proved that how his name entered in Ex.P4. Hence, this document will not help the case of the plaintiff. It is well settled law that demand register extract is not a title deed.
36. The plaintiff has produced office copy of legal notice dated 04-08-2010 issued to the defendant No.1, 2 and 4 and got marked as Ex.P5. It is mentioned that Government issued Hakku Pathra and allotted the suit schedule property to the plaintiff under Ashraya yojane, since he is in possession and enjoyment of the same and it is prayed to the defendant No.4 for transfer of khatha. But, it is admitted fact that the defendant No.4 has rejected to transfer the khatha of suit property in favour of the plaintiff.
37. The plaintiff has produced the certified copy of order of the Hon'ble High Court of Karnataka dated 23-11-1999 in WP No.880/1993 and got marked as Ex.P6. it revels that the defendant No.1 of this case had filed the said writ petition and prayed for quash the order dated 21-05-1992 bearing No.15622 (Hakku Pathra) issued in favour of plaintiff Chandraiah. In the said writ petition, the defendant No.1 had 25 OS No. 1839/2011 challenged Ex.P1 Hakku Pathra produced by the plaintiff in this case. It is contended that the suit schedule property bearing No.520 allotted to her on 16-03-1990, since she is in possession and enjoyment of the property. The respondent No.3 (the plaintiff of the present case) has no right in the suit property, he tried to interfering in the suit schedule property and also constructed certain unauthorized construction in front of her property. The respondent No.1 (defendant No.3 of the present case) has appeared in the writ petition and contended that they have initiated proceedings under Section 5(c) of the Act against the plaintiff. In the writ petition the Hon'ble Court held that the question as to whether the petitioner/defendant No.1 or respondent No.3/plaintiff are the owners of the premises bearing No.520 has been considered on 22-04-1991 by the Secretary to the Government-1, Housing and Urban Development department. It was held that the question of who is the owner of the premises No.520 has already been concluded and decided that the defendant No.1 - Jayamma is the owner of the said property. Hon'ble Court directed the defendant No.1 to approach the Civil Court for appropriate relief and disposal of the said writ petition. 26 OS No. 1839/2011
38. The plaintiff has produced the letter dated 17-10-2013 issued by BSNL in favour of his counsel and got marked as Ex.P7. It is disclosing that the counsel for the plaintiff sought for information under right to information Act in respect of service details in respect of K. Linga S/o. Kallaiah, who is the husband of the defendant No.1. The plaintiff has produced General power of Attorney dated 24-04-2017 executed by him in favour of his son i.e. PW2.
39. I have perused the order passed by the Secretary to Government-1, Housing and Urban Development department, Bengaluru, dated 22-04-1991 (Ex.D14). As per the appeal filed by the plaintiff it was decided that the document produced by the defendant No.1 - Jayamma is clear that she has been continuously staying in site No.520 because of her name not only appears in several voters' list but also she has been getting ration card. Her daughters' school certificate indicated that she is residing in the said house. It was further held that the plaintiff - Chandraiah has not produced any documentary evidence to establish that he is continuously living in the schedule premises. The defendant No.1 - Jayamma has established her title and right over the schedule 27 OS No. 1839/2011 premises. The plaintiff - Chandraiah has failed to establish his right and title over the schedule premises. During the course of arguments learned counsel for the plaintiff submitted that the Hon'ble High Court in Writ Petition No.880/1993 (Ex.P6) held that the Government already decided that the plaintiff - Chandraiah established his title over the suit property and defendant No.1 - Jayamma has not established her title. In the pleadings and PW.1 in his examination-in-chief also stated that Hon'ble High Court held that the defendant No.1 - Jayamma has not established her title over the suit property. But, as discussed above in Ex.D14 of the order it was held that the defendant No.1 - Jayamma was established her title over the suit property. That order has been observed in WP No.880/1993. Hon'ble Court was not held that the defendant No.1 was not established her title as per the order passed in Ex.D14. Therefore, I am also not accepted the evidence of PW.1 that the defendant No.3 passed an order on 22-4-1991 that suit property belongs to the plaintiff and that order was highlighted by the Hon'ble High Court by their orders dated 23-11-1999 in WP No.880/1993.
28 OS No. 1839/2011
40. I have perused documents produced by the defendant No.1. She has produced notice dated 11-07-1998 issued by Karnataka Slum Clearance Board and got marked as Ex.D1. The Deputy Director Statistics division of the defendant No.3 issued said notice to the defendant No.1 and others and directed them to produce documents prior to 1981 about they were residing in the Kamalanagara slum area. She has produced another notice dated 28-08-1989 issued by Karnataka Slum Clearance Board and got marked as Ex.D2. The Deputy Director Statistics division of the defendant No.3 issued said notice to the defendant No.1 and directed her to produce documents about she is residing in the Kamalanagara slum area.
41. She has produced letter dated 21-02-1990 issued by Karnataka Slum Clearance Board to the PSI, Basaveshwara Nagara Police Station and got marked as Ex.D3. It is mentioned in the said document that, it is proved that Smt. Jayamma (the defendant No.1 in the present case) is residing in site No.520 of Kamalanagara slum area. The plaintiff and others are giving trouble to the defendant No.1. Hence, it is requested the police to give protection to the defendant No.1. 29 OS No. 1839/2011
42. The defendant No.1 has produced letter dated 16-03- 1980 issued by Secretary of the defendant No.3 and got marked Ex.D4. It reveals that the defendant No.1 had approached the defendant No.3 for inserting her name in Hut No.520 of Kamalanagara Slum area. On the basis of voter list, School Certificate, Ration Card and spot inspection report of the Deputy Director, the Secretary of the defendant No.3 perused the records. As per survey it is mentioned that house No.520 was door locked hut, Jayamma prayed for inserting her name in the said house No.520, it was proved that she is residing in the said house since 6 to 7 years. It is mentioned that the plaintiff Chandraiah claiming that house No.520 belongs to him, but to prove the same he has not produced any documents. Hence order has been passed and inserting the name of the defendant No.1 Jayamma in the Survey list. It was directed to the plaintiff Chandraiah to remove the hut constructed by him unauthorisedly in front of hut of Jayamma.
43. The defendant No.1 has produced letter dated 10.04.1990 issued by the defendant No.3 Secretary to his Assistant Executive Engineer and got marked as Ex.D5 30 OS No. 1839/2011 directed him to take action for removal of unauthorized construction put by the plaintiff Chandraiah in front of House of the defendant No.1.
44. She has produced the certified copy of order of the Hon'ble High Court of Karnataka dated 21-06-1990 in WP No.9847/1990 and got marked as Ex.D6. The plaintiff of this case - Chandraiah had filed the said writ petition and prayed for quash of order dated 10-04-1990 bearing No.KKNM/UM/3/90-91 passed by Karnataka Slum Clearance Board. Hon'ble Court disposed of the said writ petition and directed the State Government to dispose of appeal filed by the petitioner early.
45. The defendant No.1 has produced letter dated 22.06.1990 given by her to the Secretary of the defendant No.3 Board and got marked as Ex.D7. As per the said letter she prayed for removal of unauthorized construction put by the plaintiff Chandraiah in front of her house. The defendant No.1 has produced letter dated 20.04.1990 issued by defendant No.3 Secretary to his Assistant Executive Engineer and got marked as Ex.D8. It is directed to taking immediate 31 OS No. 1839/2011 action for removal of unauthorized construction put by the plaintiff Chandraiah in front of House of the defendant No.1. The defendant No.1 has produced notice dated 16.01-1991 and got marked as Ex.D9. The Assistant Commissioner of the defendant No.3 informed the date of enquiry to the plaintiff and defendant No.1.
46. The defendant No.1 as produced the notice dated 13.09.1990 issued by the office of the defendant No.3 and got marked as Ex.D10. It was directed the defendant No.1 to pay monthly service tax in respect of house No.520. The defendant No.1 has produced letter dated 19-10-1991 issued by office of the Chairman of the defendant No.3 and got marked as Ex.D11. As per the complaint lodged by the defendant No.1, it was directed to the Sub-Inspector of Police of Basaveshwara Nagar Police Station to give protection to the defendant No.1 from Chandraiah and others. She produced notice issued by the Housing Urban Development Department dated 01.03.1981 and got marked as Ex.D12. As per this document the date of hearing in appeal No.106/1990 and informed the plaintiff and defendant No.1. 32 OS No. 1839/2011
47. The defendant No.1 has produced letter dated 23.10.1991 issued by The Housing Urban Development Department, Vidhana soudha and got marked as Ex.D13. As per this letter copy of the order dated 22.04.1991 passed by Secretary, sent to the plaintiff and defendant No.1. Ex.D14 is the order dated 22.04.1991 passed by Secretary to the Government-1, Housing and Urban Development Department. It reveals that as per the complaint filed by the defendant No.1 of this case, on 10-04-1990 order passed in the said appeal and directed to remove the shed constructed by the plaintiff - Chandraiah in front of defendant No.1 house. It was discussed in Ex.D14 that the plaintiff - Chandraiah contended that he is the absolute owner in possession of the suit property (site No.520) for the last 20 years, he is regularly paying tax, the said site granted to him, khatha stands in his name, voters' list of himself and his family existed. He further contended that as per the order of the Hon'ble High Court he prayed for considered his appeal and set aside the order of removal of construction. In the said appeal the defendant No.1 of this case has appeared and placed several documents. Considering the documents produced by the defendant No.1, it was held that she having 33 OS No. 1839/2011 right over the suit property. It was further held that the plaintiff has not produced any documents to show that he having right over the suit property. Therefore, appeal filed by the plaintiff has been dismissed on 22-04-1991.
48. Ex.D15 is the certificate dated 25-08-1989 issued by the Head Master, New Light Kannada Primary School, Kurubarahalli, Bangalore -79 that one Geethalakshmi, D/o K. Linga and Smt. Jayamma was studying in the said school in 1st standard for the year 1988-89. Ex.D16 is the voters' list for the assembly constituency of 1988. It belongs to 6th Main road of R.G.I. colony. Sl.No.259 and 260 mentioned the name of the plaintiff and his wife in respect of house No.57/1. To prove that the plaintiff was not residing in the suit schedule property and he was residing in some other place, the defendant has produced above said voters' list. Ex.D7 is the voters' list for the Karanataka Legislative Assembly Election for the year 1989.
49. Ex.D18 is the certified copy of the order dated 01-07- 1996 passed by the Hon'ble High Court of Karnataka in WP 10930/1991. In this writ petition plaintiff - Chandraiah 34 OS No. 1839/2011 prayed for quash the order passed by the Government (Ex.D14). The Hon'ble High Court allowed the said appeal and quashed the order passed by the defendant No.1 dated 10-04-1990 (Ex.D5) and 22-04-1990 (Ex.D14). However, reserving the liberty to the defendant No.3 to initiate such action as it may deem fit under Section 5(c) or any other provisions of the Act for demolition or removal of the alleged unauthorized structure raised by the plaintiff in the suit property.
50. Ex.D19 to D23 are the receipts dated 03-07-1992, 05- 02-1992, 13-09-1990, 17-03-1990 and 11-10-1991 in the name of the defendant No.1 towards payment of occupancy price to the defendant No.3 in respect of house No.520. Ex.D24 is the notice dated 16-1-1996 issued by the Assistant Commissioner of the defendant No.3 to the plaintiff. As per order passed by Hon'ble High Court of Karnataka in WP No.10930/1991 the said notice issued to the plaintiff and taking action under Section 5(c) of the said Act. It is directed to the plaintiff to demolish the unauthorized construction put by him in the area of house No.520 within 15 days from the date of said notice. If he failed to do so the same Board itself 35 OS No. 1839/2011 demolish the same under Section 5(c) (3) of the said Act and to be collected the said expenditure from the plaintiff as tax.
51. Ex.D25 is the order passed by the Hon'ble High Court dated 24-01-1997 in WP No.33656/1996. It reveals that the plaintiff - Chandraiah prayed for quashing the notice issued by the defendant No.3 vide Ex.D24. The Hon'ble High Court by their order quashed the above said notice and setting liberty to the defendant No.3 to take action by initiating appropriate proceedings under Section 5(c) of the Slum Clearance Act. It was further held that if any such proceedings are initiated, the petitioner will be entitled to file objection in accordance with law and raise all the contentions on facts and law that may be available to him. It is further directed that if the respondent - Slum Board thinks it advisable to initiate appropriate proceedings, the same may be intimated on or before 14-02-1997.
52. Ex.D26 is another notice dated 31-03-1997 issued by the Assistant Executive Engineer - defendant No.3 to the plaintiff. It was informed to the plaintiff that the President of the defendant No.3 Board has decided to making spot 36 OS No. 1839/2011 inspection on 01-04-1997 at 4 p.m. Hence, it was directed to produce available documents in respect of above said site. Ex.D27 is the temporary order passed by the Secretary of the defendant No.3 dated 14-02-1997. It was decided for demolition of unauthorized construction put in the house No.520 without any authority and it is decided to demolish the same under Section 5C(1) of the said Act. Hence, it is directed for demolition of unauthorized construction within 3 days from the date of such preliminary order.
53. Ex.D28 is the show-cause notice dated 14-02-1997 issued by the Secretary of the defendant No.3 board to the plaintiff. It is mentioned that Hon'ble High Court of Karnataka by their order dated 02-01-1997 directed the defendant No.3 board to take action against the unauthorized construction put in the house No.520. It is further mentioned that the plaintiff - Chandraiah put up unauthorized construction in the portion of the house No.520, it has been decided to demolish the same under Section 5(c) of the said Act. Hence, it is directed the plaintiff to demolish the above said unauthorized construction within 7 days at his own costs. Ex.D29 is the notice dated 9-7-1997 issued by the Assistant 37 OS No. 1839/2011 Commissioner of the defendant No.3 Board and given intimation to the plaintiff and defendant No.1 to appear before the enquiry to be held on 27-07-1997.
54. Ex.D30 is the notice dated 18-06-1997 issued to both plaintiff and defendant No.1 by the Secretary of the defendant No.3 board. Hon'ble High Court of Karnataka by their order dated 24-01-1997 directed the Board to take necessary action under Section 5C(1) of the said Act in respect of unauthorized construction in house No.520. Hence, it is informed both the parties to appear on 26-06- 1997 before the Secretary. Ex.D31 is the another notice dated 02-02-1997 issued to the defendant No.1 to appear before the enquiry committee on 08-02-1999 along with documents.
55. Ex.D32 is the certified copy of the order of Hon'ble High Court of Karnataka dated 17-06-2006 passed in WP No.34786/2002. The said Writ Petition filed by the defendant No.1 of this case for quash the order dated 11-07-2002 by the defendant No.3 of this case and prayed for issue direction to the Slum Clearance Board to initiate proceedings against 38 OS No. 1839/2011 the plaintiff to demolish the unauthorized shed put by him in front of her house. As per the submissions made by the respondent No.4 (BBMP) appropriate proceedings will be initiated against the plaintiff regarding unauthorized shed, Hon'ble High Court had dismissed the said Writ Petition and directed the authorities to dispose off the same within the period of 3 months from the date of receipt of the said order.
56. Ex.D33 is the order dated 28-11-2007 passed by Hon'ble High Court of Karnataka in WP No.14403/2006. In the said writ petition plaintiff of this case - Chandraiah prayed for quashing the order passed by BBMP dated 09-10-2006. The Hon'ble High Court dismissed the above said writ petition and held that it is open for the respondents corporation to initiate action under Section 321 of the Karnataka Municipal Corporation Act. It is open to the petitioner to file necessary application/objection, if the proceedings under Section 321 of the Karnataka Municipal Corporation Act are initiated.
57. Ex.D34 is the order/letter issued by the BBMP dated 27- 10-2009. It is directed the plaintiff and defendant No.1 of this case to produce sanctioned plan for construction of house 39 OS No. 1839/2011 in site No.520, otherwise it will consider the same as unauthorized under KMC Act. Ex.D35 is the letter dated 24- 10-2009 issued by the BBMP to the defendant No.1. It was directed the defendant No.1 to demonstrate the sanctioned plan within 3 days. If failed to do so, they will stop the construction without notice.
58. Ex.D36 is the order dated 01-11-2009 passed by the Hon'ble High Court of Karnataka in CCC No.708/2009(Civil). The said contempt petition filed by the defendant No.1 of this case against the BBMP, for disobeying the order dated 14-03- 2008 passed in WP NO.2540/2008. In the said writ petition the Hon'ble High Court directed the defendant No.1 of this case/complainant to initiate action against the respondent authorities.
59. Ex.D37 is the notice issued by the Government dated 31-01-1991 to the defendant No.1 for appearing for enquiry before the Secretary, department of Housing and Urban development. Ex.D38 is the Report card in the name of the defendant No.1. Ex.D39 is the Election Identity card in the name of the defendant No.1. Ex.D40 to D43 are the Election 40 OS No. 1839/2011 Identity cards are in the name of children of the defendant No.1.
60. Ex.D44 to D47 are the photographs in respect of suit schedule property. Ex.D48 is the order passed by the defendant No.3 dated 16-03-1990 that the name of the defendant No.1 registered in respect of house No.520. It was directed the plaintiff of this case to demolish the hut put by him in front of house of the defendant No.1 within 7 days, otherwise they will take necessary action as per law. Ex.D49 is the rough sketch produced by the defendant No.1 to show the location of the 'A' schedule property.
61. I have carefully perused the contention of the defendant No.1 and documentary evidence produced by her. From perusal of the above said documents (Ex.D1 to D48), it is clear that both the plaintiff and the defendant No.1 are claiming their title and possession over the same property i.e., property No.520 existing in Kamalanagar slum area. As per the defendant No.1 her name registered in respect of site No.520 under Section 4 of Karnataka Slum Area (Improvement and Clearance) Act, 1973 (herein after 41 OS No. 1839/2011 referred as 'the Act'). Subsequently the plaintiff illegally constructed house in front of her house. Therefore, she approached the concerned authorities i.e., Slum Board for clearance of the hut/house put by the plaintiff. After proper enquiry concerned authorities have passed an order and found that the plaintiff constructed unauthorized construction in front of the defendant No.1 house i.e., in property No.520 and passed an order for removal of the same. BBMP also passed an order under Section 321 of KMC Act for demolition of the house put by the plaintiff in front of the house of the defendant No.1. For that reason the plaintiff approached Hon'ble High Court of Karnataka. Hon'ble High Court by their orders directed the concerned authorities to take necessary action for demolition of house constructed in 'A' schedule property after giving opportunity to the plaintiff and others.
62. In the present suit the plaintiff contended that on 21- 05-1992 the Government of Karnataka issued Hakku pathra and allotted the suit schedule property to him. Since, he is in peaceful possession and enjoyment of the said property. In Ex.D14 of order passed by the Government, it is mentioned that the plaintiff claiming that he is absolute owner in 42 OS No. 1839/2011 possession of the house situated in site No.520 for the last 20 years. It is further clear that dispute going on in between the plaintiff and the defendant No.1 in respect of site No.520 prior to 1990. It is admitted fact that site No.520 is existing in Kamalanagar slum board and it was acquired for that purpose. The said site i.e., suit schedule property is vested with the Slum Clearance Board i.e., the defendant No.3. But Ex.P1 of alleged Hakku Pathra issued to the plaintiff by the defendant No.2. I am of the opinion that the Government or said Tahsildar (defendant No.2) had no title and right to issue said Hakku Pathra in favour of the plaintiff. Moreover, as discussed above, there are different type of hand writings found place in the said Hakku Pathra in different pens, site No.542 has been over write as 541 and the boundaries. The boundaries mentioned in Ex.P1 and the plaint are not one and the same. Therefore, I am of the opinion that Ex.P1 is not authenticated document to hold that the Government had allotted the suit schedule property in favour of the plaintiff. Further I am of the opinion that the plaintiff has not proved issue of Hakku Pathra to him by the Government and allotment of suit schedule property. On the basis of alleged Hakku Pathra, it cannot be held that the suit schedule 43 OS No. 1839/2011 property allotted to the plaintiff from the Government and by virtue of the same he is the owner of the said property.
63. The plaintiff contended that site No.520 assigned as new No.541. To prove the same he has not produced any documentary evidence before this Court. The plaintiff claiming that he is in possession and enjoyment of the suit schedule property measuring East-west 18 feet and North- south 36 feet. But, contrary to the same PW.2 in his cross- examination stated as follows :-
£ÀªÀÄä ªÀÄ£ÉAiÀÄ §®UÀqUÉ É MAzÀÄ zÁj EzÉ JAzÀgÉ ¸ÀA¢ EzÉ. D ¸ÀA¢¬ÄAzÀ ºÉÆÃzÀgÉ 1£Éà ¥ÀæwªÁ¢AiÀÄ UÀÄr¸À®Ä EzÉ JAzÀgÉ CzÀ£ÀÄß £ÁªÉà PÀnÖPÉÆnÖzÉÝÃªÉ JAzÀÄ ¸ÁQëzÁgÀgÀÄ ºÉüÀÄvÁÛgÉ. CAvÀºÀ UÀÄr¸À®Ä FUÀ £À£UÀ É vÉÆÃj¸ÀÄwÛgÀĪÀ ¤.r- 44, ¤.r.- 46 ªÀÄvÀÄÛ ¤.r.- 47 gÀ ¥ÉÇÃmÉÆÃUÀ¼° À è EzÉ JAzÀgÉ ¤d. CAvÀºÀ UÀÄr¸À®Ä 1982 jAzÀ EzÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. £ÀªÀÄä ªÀÄ£ÉAiÀÄ §®UÀqÉAiÀÄ ¸ÀA¢ 3 Cr EzÉ JAzÀgÉ ¸Àj¬Ä®è DzÀgÉ JgÀqÀƪÀgÉ Cr CUÀ® EzÉ. £ÀªÀÄä vÀAzÉAiÀĪÀgÀÄ PÀnÖzÀ PÀlÖqÀzÀ C¼ÀvÉ 18 EAlÄ 18 Cr JAzÀgÉ ¸Àj¬Ä®è DzÀgÉ 8 EAlÄ 36 Cr EgÀÄvÀÛzÉ. 1£Éà ¥ÀæwªÁ¢ ªÁ¸À«gÀĪÀ UÀÄr¸À°£À C¼ÀvÉ £À£UÀ É UÉÆwÛ®è. CzÀÄ 15 EAlÄ 18 Cr C¼ÀvÉ EzÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. £ÁªÀÅ ªÁ¸À«gÀĪÀ ªÀÄ£É ªÀÄvÀÄÛ 1£Éà ¥ÀæwªÁ¢AiÀÄ UÀÄr¸À°£À C¼ÀvÉ zÁªÁ ±ÉqÀÆå¯ï£À°è vÉÆÃj¹gÀĪÀ 18 EAlÄ 36 Cr C¼ÀvÉAiÀÄ°è §gÀÄvÀÛzÉ JAzÀgÉ ¤d.
64. As stated above, PW.2 in his cross-examination stated that hut/house belongs to the defendant No.1 is existed back side of their house. The said house of the defendant No.1 is 44 OS No. 1839/2011 coming under the suit schedule property measuring 18 x 36 feet. Therefore, it is clear that the houses of the plaintiff and the defendant No.1 are in site No.520. In the cross- examination of DW.1 the plaintiff side was suggested that in the year 1990 she came to Bangalore and requested the plaintiff to occupy the suit property, the plaintiff and her (defendant No.1) belongs to same village, hence the plaintiff allowed her to occupy the suit property. Again it was suggested that the father of the plaintiff was allowed the defendant No.1 to reside in the suit property. But, DW.1 specifically denied the same. From going through the same I am of the opinion that the plaintiff has admitted that the defendant is in the possession of portion of suit schedule property. As discussed above, it is clear that the defendant No.1 residing in the suit schedule property by way of construction of hut and the plaintiff constructed hut in front of defendant No.1's hut. I am of the opinion that it is clear that the plaintiff has not established his case that he is in possession of entire extent of the suit schedule property.
65. From the above discussion, I come to the conclusion that the plaintiff has failed to prove that he is the owner of 45 OS No. 1839/2011 the suit schedule property. He has not proved that he is in possession of entire extent of suit property. It is true that the plaintiff is in possession of portion of the suit schedule property. But, it cannot be hold that he was in lawful possession and enjoyment of the suit schedule property. Hence, I answer issue No.1 and additional issue No.1 dated 18-07-2017 in the negative.
66. ISSUE NO.2:- As discussed above in issue No.1, the plaintiff has failed to prove that he was in lawful possession of the suit schedule property as on the date of the suit. He also not proved his possession over entire extent of suit property. Therefore, I am of the opinion that when the plaintiff is not in possession of entire extent of suit schedule property, the question of alleged interference by the defendants is does not arise. Hence, I answer the issue No.2 in the negative.
67. ISSUE NO.4:- In the written statement defendant No.1 contended that the suit of the plaintiff for bare injunction is not maintainable without seeking the relief of declaration. I have perused the records. Initially the plaintiff has filed this suit for bare injunction restraining the defendants from 46 OS No. 1839/2011 interfering with his peaceful possession and enjoyment of the suit schedule property. After filing of the written statement by the defendant No.1 and denied the title of the plaintiff over the suit schedule property and claiming his ownership over the same, the plaintiff got amendment to the plaint and sought for relief of declaration of title over the suit schedule property. Hence, in view of the relief of declaration of title sought by the plaintiff by way of amendment, the question of considering this issue is does not arise.
68. ISSUE NO.5:- The defendant No.1 contended that the defendant No.2 to 4 are the Government and statutory bodies. Before filing this suit the plaintiff did not issue statutory notice with them. Hence, the present suit of the plaintiff is not maintainable. I have perused the above said contention of the defendant No.1. As per the records, the plaintiff filed this suit on 09-03-2011. Ex.P5 is the office copy of the legal notice dated 04-08-2010 issued by the plaintiff to the defendant No.2 to 4. The plaintiff also produced postal receipts for sending the said notice to the defendant No.2 to
4. Hence, I am of the opinion that prior to filing of the suit the plaintiff got issued statutory notice to the defendant No.2 47 OS No. 1839/2011 to 4. Therefore, I am not accepted the contention of the defendant No.1 that the suit of the plaintiff is not maintainable due to non-issue of statutory notice to the defendant No.2 to 4. Accordingly I answer issue No.5 in the negative.
69. ADDITIONAL ISSUE NO.2 DATED 18-07-2017:- The defendant No.1 contended that the suit of the plaintiff is barred by limitation in respect of relief of declaration of title. She further contended that after filing of the suit on 09-04- 2011 she has filed written statement that counter claim and denied the title of the plaintiff over the suit schedule property. Thereafter on 11-09-2015 the plaintiff filed I.A. and prayed for amendment in respect of relief of declaration of title. The plaintiff has not filed the suit for declaration of relief within 3 years as per Article 58 of the Limitation Act, 1963.
70. I have perused the above said contention of the defendant No.1. Initially on 09-03-2011 the plaintiff filed this suit for bare injunction restraining the defendant No.1 to 4 from interfering in his peaceful possession and enjoyment of the suit schedule property. After service of summons the 48 OS No. 1839/2011 defendant No.1 has appeared and filed written statement- cum-counter claim on 19-04-2011. She denied the title of the plaintiff over the suit schedule property.
71. It is further seen from the records that, after filing of written statement-cum-counter claim by the defendant No.1 and denying the title of the plaintiff over the suit schedule property, on 11-09-2015 the plaintiff filed I.A. for amendment of plaint and inserted the relief of declaration of title. Article 58 of the Limitation Act 1963 saying that the plaintiff has to file the suit to obtain declaration of title within 3 years from the date of right to issue first accrues. It is seen from the records that the serious dispute in respect of premises No.520 (suit schedule property) is going on in between the plaintiff and defendant since 1988. There are several writ petitions, representation and appeals filed by both the parties in respect of suit schedule property and claiming their title over the suit schedule property.
72. As per Ex.D24 to D37 it is clear that the litigations are going on in respect of suit schedule property between the plaintiff and the defendant since 1996. During that time itself 49 OS No. 1839/2011 both are claiming their title over the suit schedule property. Particularly in Ex.D14, the Government passed an order and held that the defendant No.1 established her title over the suit property and the plaintiff failed to establish his title over the suit property. That order passed on 22-04-1991. Hence, it is clear that in the year 1991 itself the defendant has specifically denied the title of the plaintiff over the suit schedule property. But the plaintiff filed this suit in the year 2011 and got amendment for declaration of title in the year 2015. Hence, I am of the opinion that as per Article 58 of the said Act the suit of the plaintiff is hopelessly barred by limitation.
73. This suit filed by the plaintiff on 09-03-2011. The defendant No.1 filed written statement on 19-04-2011 and denied the title of the plaintiff. The plaintiff filed I.A. and got amended to the plaint in respect of declaration of title on 11- 09-2015. I am of the opinion that even the plaintiff has not sought for amendment of plaint regarding declaration of title within 3 years from the date of filing of written statement by the defendant No.1. I am of the opinion that the plaintiff has not sought for amendment of plaint regarding declaration of 50 OS No. 1839/2011 title within 3 years from the date of written statement filed by the defendant No.1. On this count also the suit of the plaintiff is barred by limitation. In this context, I relied upon the decision of Hon'ble Supreme Court cited by the defendant No.1 side. Hon'ble Court decision reported in AIR 2015 Supreme Court 3364 (L.C. Hanumanthappa (since dead) representated by his L.Rs v/s H.B. Shivakumar), which reads as follows :
Civil P.C. (5 of 1908), O.6, R.17 - Amendment of plaint - Doctrine of relation back - Applicability - Suit for permanent injunction restraining interference with possession - Defendant in written statement disputing title of plaintiff as also identity of suit property - Amendment of plaint to add relief of declaration of title
- Allowed by court on remand subject to plea of limitation - Doctrine or relation back will not apply as starting from date of W.S. limitation for suit for declaration of title has long expired - And by allowing amendment subject to plea of limitation court has ruled out existence of extraordinary circumstances warranting application of doctrine.
74. From the above discussion, I come to the conclusion that the defendants have proved that the suit of the plaintiff in respect of declaration of title is barred by limitation. Hence, I answer this additional issue No.2 in the affirmative.
75. ISSUE NO.6 :- In view of the findings of issue No.1 and additional issue No.1 dated 18-07-2017 the plaintiff has 51 OS No. 1839/2011 utterly failed to prove his ownership over the suit schedule property. He also failed to prove that he is in lawful possession of the suit schedule property as on the date of filing of the suit. As discussed above, it is held that the suit of the plaintiff is also barred by limitation. As discussed above the plaintiff has not proved correct boundaries to the suit schedule property. On this count also he is not entitled discretionary relief of declaration of title and injunction. Therefore, I am of the opinion that the plaintiff is not entitled for the relief of declaration of title and permanent injunction as prayed for. I am of the opinion that for the above reasons the suit of the plaintiff is liable to be dismissed. Hence, I answer the issue No.6 in the negative.
76. ISSUE NO.3, ISSUE NO.7, ADDITIONAL ISSUE NO.1 DATED 28-08-2015 AND ADDITIONAL ISSUE NO.3 DATED 18-07-2017:- These four issues are inter-connected. Hence, for the purpose of avoiding repeated discussions, I taken up all these issues together for consideration.
I have perused the contention taken by the defendant No.1 in the written statement. DW.1 in her examination-in- chief reiterated the averments of written statement. As per 52 OS No. 1839/2011 the defendant No.1 the subject matter of counter claim is property bearing No.520, new No.541, measuring 18 x 33 feet, situated at Kamalanagar slum area, now called as Sanjayagandhi Nagar, Bangalore. As discussed above, both the plaintiff and the defendant No.1 are claiming in the same property i.e., property No.520 new No.541.
77. The defendant No.1 contended that the State of Karnataka exercising its power under the provisions of Karnataka Slum Area (Improvement and Clearance) Act, 1973 declared the lands and sheds existing in Sy.No.46 and other survey numbers of Saneguruvanahalli village. The 'A' schedule property i.e., counter claim suit property is coming in the above said declared land. I am of the opinion that there is no dispute between the parties that the suit schedule property is carved out of Sy.No.46 of Saneguruvanahalli village and it was declared as slum area.
78. The defendant No.1 further contended that she and her family members have been residing in the suit schedule 'A' property uninterruptedly from the year 1971 and earlier. As per Section 4(2) of the said Act, on 16-4-1990 the defendant 53 OS No. 1839/2011 No.3 board registered her name as an occupant of 'A' schedule property. She further contended that the plaintiff put up temporary construction in front of her house by over night, which is causing obstruction ingress and egress to the 'A' schedule property. She further contended that after the order of registration, she has deposited occupancy price of Rs.499/-.
79. To prove her case, the defendant No.1 has produced alleged order dated 16-03-1990 and got marked as Ex.D4. The Secretary of the defendant No.3 authority has passed said order as per the application filed by the defendant No.1. He had perused the voters' list for the year 1983, school certificate, ration card belongs to the family of the defendant No.1 and spot mahazar report of Deputy Director. It was found that as per survey house No.520 was locked. It was found that the defendant No.1 was residing in the said hut since 6-7 years. It was further held that plaintiff - Chandraiah claiming that the said property belongs to him, but he has not produced any documents. Therefore, as per the survey report of the department defendant No.3, it was ordered for registering the name of the defendant No.1 in respect of hut 54 OS No. 1839/2011 No.540 of Kamalanagara slum area. It was further ordered that the plaintiff put up unauthorized construction in front of the said house and it is directed him to remove the said hut within 7 days from the date of receipt of said order. It is noticed that Ex.D48 and Ex.D4 are one and the same.
80. To prove that she and her family members residing in the suit schedule property, the defendant No.1 has produced Ex.D15 of certificate issued by Head Master New Light Kannada Primary School, Kurubarahalli, Bangalore-79. It is mentioned that daughter of the defendant No.1 viz., Geethalakshmi resident of No.520, 4th Main, she was studied in 1st standard for the year 1988-89. To prove her contention that as per the order of registration, she deposited occupancy price to the defendant No.3 board, the defendant No.1 has produced five receipts and got marked as Ex.D19 to D23. The defendant No.1 has produced certified copies of Ration card belongs to her family, Election Identity card belongs to her, her children and got marked as Ex.D38 to D-43. These documents pertaining to the address of No.541, 4th cross road, Kamalanagara. She has produced four photographs 55 OS No. 1839/2011 with negative in respect of 'A' schedule property and got marked as Ex.D44 to D47.
81. I have carefully perused the above said documents produced by the defendant No.1. It is pertinent to note that in the cross-examination of DW.1 the plaintiff side never disputed the above said documents and also not disputed that the defendant No.1 is in possession of the suit property. As discussed above, PW.2 in his cross-examination specifically admitted that the defendant No.1 is residing in the hut which is backside of his house. In the cross-examination of DW.1, the plaintiff side has taken contention that the defendant No.1 is in the occupation of suit schedule property with the permission of the plaintiff. Therefore, it is clear that hut belongs to the defendant No.1 is existed backside of the plaintiff hut in the suit schedule property. The plaintiff has admitted the possession of the defendant No.1 over the suit schedule property.
82. It is noticed that the defendant No.1 has filed written statement with counter claim. In the counter claim she specifically taken contention that she is owner and in 56 OS No. 1839/2011 possession of 'A' schedule property, she residing in the said property along with her family members since 1977, the defendant No.3 board passed an order and registered her name in the suit schedule property, she paid occupancy price to the defendant No.3 board. But, it is pertinent to note that the plaintiff has not challenged the counter claim of the defendant No.1 by way of filing rejoinder/reply. Therefore, I am of the opinion that the defendant No.1 has proved her case as narrated in the counter claim. In this contest I relied upon the decision of Hon'ble Court cited by the defendant No.1 side reported in 2013 (2) AKR 602 (P.V. Kamesh Kumar vs. Thoti Muniyappa and others). In para 33 of the judgment Hon'ble Court held as follows :-
(33) When the counter claim is not challenged by the plaintiff by filing the reply and when the defendant has proved his title and possession in respect of the schedule land shown in the written statement and averment in the counter claim is to the effect that the plaintiff is interfering with the possession of the schedule land by defendant No.1, I find that, the cause of action as shown in the counter claim is sufficient to decree the counter claim, more so, when the same is not denied.
83. I have perused the Hon'ble Court decision cited supra with case on hand. It is true that due to non-filing of rejoinder/reply to the counter claim by the plaintiff, the counter claim may not automatically decreed. But, in the 57 OS No. 1839/2011 case on hand, the defendant No.1 pleaded and proved the contents of counter claim with cogent oral and documentary evidence. In the counter claim and in her evidence DW.1 (defendant No.1) specifically stated that the defendant No.3 has registered the name of the defendant No.1 in respect of property No.520 of Kamalanagara slum area and the defendant No.1 has paid occupancy price in respect of allotment of site No.520. The plaintiff also not denied the contention of the defendant No.1 that he put up unauthorized construction in front of the defendant No.1's house, Government and BBMP authorities have passed an order for demolition of the above said unauthorized construction. Hence, I come to the conclusion that the defendant No.1 has established her case that the defendant No.3 has registered her name in respect of suit property in Kamalanagara slum area, she paid occupancy fee in respect of allotment of said site. She has also proved that she and his family members residing in the suit schedule property. She also proved that the plaintiff illegally put up unauthorized construction in front of her house. Hence, I am of the opinion that the defendant No.1 is entitled for mandatory injunction for demolition of unauthorized construction put up by the plaintiff in 'A' 58 OS No. 1839/2011 schedule property. I further come to the conclusion that the prayer sought by the defendant No.1 in the counter claim is liable to be allowed. As discussed above, the plaintiff has not proved that the defendant No.2 issued Ex.P1 of Hakku Pathra, on the basis of Ex.P1 he is the owner and in possession of suit schedule property. Hence, I come to the conclusion that the defendant No.1 is to be entitled the relief that the alleged Ex.P1 of Hakku Pathra issued by the defendant No.2 in respect of suit schedule property is not binding on her. She also to be entitled that the defendant No.3 and 4 are directed to demolish the unauthorized construction (DEFGD portion) put by the plaintiff in the 'A' schedule property. I further come to the conclusion that the suit of the plaintiff is liable to be dismissed. From looking into the facts and circumstances of the case, there is no order as to costs. Therefore, I answer the issue No.3, issue No.7, additional issue No.1 dated 28-03- 2015 and additional issue No.3 dated 18-07-2017 in the affirmative.
84. ISSUE NO.8 :- In view of the findings on issues and additional issues, I proceed to pass the following order:- 59 OS No. 1839/2011
ORDER The suit of the plaintiff is dismissed.
The counter claim prayed by the defendant No.1 is allowed.
It is declared that alleged Hakku Pathra dated 21-05- 1992 alleged to have been issued by the defendant No.2 alleged to have in respect of premises No.541 (tampering the No.542 as 541) measuring 18 x 36 feet in Sy.No.46 of Saneguruvanahalli, Yeshawanthapura Hobli, Bangalore North Taluk is not binding on the defendant No.1.
It is directing the defendant No.3 and 4 by way of mandatory injunction to demolish the unauthorized construction put by the plaintiff (DEFGD portion) in front of the defendant No.1 house i.e., in the 'A' schedule property.
It is directed the plaintiff by way of mandatory injunction to demolish the above said DEFGD portion at his own costs within 60 days from the date of this judgment.
It is ordered that if the plaintiff failed to demolish the above said DEFGD portion in 'A' schedule property, the defendant No.1 is entitled for demolish the same through Court as per law.
Parties are directed to bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript corrected by me, signed and then pronounced by me in open Court on this the 12TH day of July, 2018).Digitally signed by RACHENAHALLI Y SHASHIDHARA
DN: cn=RACHENAHALLI Y SHASHIDHARA,ou=HIGH COURT OF KARNATAKA,o=GOVERNMENT OF KARNATAKA,st=Karnataka,c=IN Date: 2018.07.12 17:05:42 IST (R.Y. SHASHIDHARA), XVI Addl. City Civil & Sessions Judge, BANGALORE.60 OS No. 1839/2011
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:-
PW.1 Chandraiah
PW.2 C. Nagaraj
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:-
Ex.P-1 Hakku Patra dated 21-05-1992
Ex.P-2 & 3 Electricity bills
Ex.P-4 Demand register extract
Ex.P-5 Copy of legal notice dated 04-08-2010
Ex.P-6 Cc of orders passed in WP 880/1993 dt: 23-11-
1999
Ex.P-7 Application filed under RTI Act.
Ex.P-8 General power of attorney dt: 24-07-2017
LIST OF WITNESSES EXAMINED FOR DEFENDANT:-
DW.1 Smt. Jayamma
DW.2 H.V. Srinivasa Babu
LIST OF DOCUMENTS MARKED FOR DEFENDANT:-
Ex.D-1 & 2 Intimation letters dated: 11-07-1988 & 28-08-
1989
Ex.D-3 Letter dated 21-2-1990
Ex.D-4 Copy of order dated 16-3-1990
Ex.D-5 Letter dated 10-4-1990
Ex.D-6 Cc of the order passed in WP 9847/1990 dt: 21-
6-1990
Ex.D-7 & 8 Letters dt: 22-6-1990 & 20-4-1990
Ex.D-9 Intimation letter dt: 16-1-1991
Ex.D-10 Notice dt: 13-9-1990
Ex.D-11 Letter dt: 19-10-1991
Ex.D-12 Enquiry notice dt: 1-3-1991
Ex.D-13 Letter dt: 23-4-1991
Ex.D-14 Copy of order of Under Secretary to Government
dt: 22-4-1991
Ex.D-15 Letter 25-8-1989
Ex.D-16 & 17 Copy of voters' list
Ex.D-18 Cc of orders in WP 10930/1991 dt: 1-7-1996
61 OS No. 1839/2011
Ex.D-19 to Receipts dt: 3-7-92, 5-2-1992, 13-9-1990, 17-3-
23 1990, 11-10-1991
Ex.D-24 Notice dt: 16-11-1996
Ex.D-25 Cc of orders in WP No.33656/1996 dt: 24-1-
1997
Ex.D-26 Notice dt: 31-3-1997
Ex.D-27 Temporary orders dt: 14-2-1997
Ex.D-28 Show cause notice dt: 14-2-1997
Ex.D-29 to Notices dt: 9-7-1997, 18-6-1997 & 2-2-1999
31
Ex.D-32 Cc of orders in WP 34786/2002 dt: 17-6-2008
Ex.D-33 Cc of orders in WP 14403/2006 dt: 28-11-2007
Ex.D-34 & 35 Letters dt: 27-10-2009 & 24-10-2009
Ex.D-36 Cc of orders in CCC No.708/2009 dt: 4-11-2009
Ex.D-37 Enquiry notice dt: 31-1-1991
Ex.D-38 Ration card
Ex.D-39 to Election identity cards
43
Ex.D-44 to Photographs
47
Ex.D-44(a) to Negatives
47(a)
Ex.D-48 Copy of order dated 16-03-1990
Ex.D-49 Rough sketch
(R.Y. SHASHIDHARA),
XVI Addl. City Civil & Sessions Judge,
BANGALORE.
62 OS No. 1839/2011
ORDER
The suit of the plaintiff is dismissed.
The counter claim prayed by the
defendant No.1 is allowed.
It is declared that alleged Hakku
Pathra dated 21-05-1992 alleged to have
been issued by the defendant No.2 alleged
to have in respect of premises No.541
(tampering the No.542 as 541) measuring
18 x 36 feet in Sy.No.46 of
Saneguruvanahalli, Yeshawanthapura
Hobli, Bangalore North Taluk is not
binding on the defendant No.1.
It is directing the defendant No.3
and 4 by way of mandatory injunction to
demolish the unauthorized construction
put by the plaintiff (DEFGD portion) in
front of the defendant No.1 house i.e., in
the 'A' schedule property.
It is directed the plaintiff by way of
mandatory injunction to demolish the
above said DEFGD portion at his own
costs within 60 days from the date of this
judgment.
It is ordered that if the plaintiff
failed to demolish the above said DEFGD
portion in 'A' schedule property, the
defendant No.1 is entitled for demolish
the same through Court as per law.
Parties are directed to bear their
own costs.
Draw decree accordingly.
(Vide separate Judgment)
(R.Y. SHASHIDHARA),
XVI Addl. City Civil & Sessions Judge,
BANGALORE.
63 OS No. 1839/2011