Bangalore District Court
Sri.H.K.Jayakumar vs The Commissioner on 14 January, 2016
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 14th day of January 2016.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.17411/2004
Plaintiff: Sri.H.K.Jayakumar,
S/o.Sri.R.Kariayappa, aged
about 45 yrs, R/at.No.27, KHB
Colony, I Phase, Magadi Road,
Bengaluru-560079.
Rep. by GPA Holder
Sri.R.Kariappa.
(By Sri.A.N.Narayana Swamy, Advocate)
V/S
Defendants: 1. The Commissioner, Karnataka
Housing Board, Cauvery
Bhavan, Bengaluru-560009.
2. The Secretary, Urban
Development Department, 4th
Floor, M.S.Building, Bengaluru-
560001.
2 O.S. No.17411/2004
3. The Basaveshwaranagar,
Jagruthi Mahila Abhivruthi
Samasthe, No.2, MIG 1st Phase,
4th Main Road, KHB Colony,
Bengaluru-560079.
By its Secretary.
(By Sri.T.N.Shiva Reddy, Advocate for deft.No.1)
(By Sri.B.G.Thammaiah, Advocate for deft.No.3)
(Deft.No.2-Exparte)
Date of institution of the suit 15.12.2004
Nature of the suit (Suit for Pro-note, Suit for Declaration &
Suit for Declaration and Possession, Permanent Injunction
Suit for Injunction, etc.)
Date of commencement of recording 10.11.2010
of the evidence
Date on which the Judgment was 14.01.2016
pronounced
Total duration Year/s Month/s Day/s
11 00 29
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for the relief of
(a) declaration declaring the plaint schedule property is a road as per the plan, and also the defendant Nos.1 and 2 are not having any right, title or interest to allot the same in favour of any person, and 3 O.S. No.17411/2004 also the suit schedule property is an easement of necessity; i.e., for easy access of right to way, air and light,
(b) cancellation of the sale deed dated 14.06.2005 executed by the defendant No.1 in favour of the defendant No.3 bearing No.RJN-1- 1633/2005-06 and the same is null and void and not binding on the plaintiff,
(c) making direction that the defendant No.1 shall cancel the allotment of suit property made in favour of the defendant No.3,
(d) permanent injunction restraining the defendants from interfering with plaintiff's peaceful possession and enjoyment of the plaint schedule property, and cost and such other reliefs.
2. The description of the suit schedule property as shown in the schedule to the plaint is as follows:-
All that part and parcel of the property bearing site No.27/A formed in Sy.No.44 situated at 4th Main, KHB Colony, I Stage, A.D.Hally, Magadi Road, Bengaluru-79, measuring East to West: 40 feet and North to South: 20 feet and bounded on the:
East by: Health Office; West by: Road;
North by: Site No.27 i.e., plaintiff properties; and on South by: Telegraph Office.4 O.S. No.17411/2004
3. Case of the plaintiff, in brief, is as below:-
It is case of the plaintiff that he is the absolute owner in possession of the premises bearing No.27, formed in land bearing Sy.No.44, KHB Colony, I Phase, Magadi Road, Bengaluru, and was acquired the same through a family partition dated 15.11.2002 and the plaintiff is represented by his GPA holder who is none other than the father of the plaintiff. The above said property bearing site No.27 was originally purchased by the plaintiff's sister Smt.H.K.Saroja by utilizing the joint family funds from Sri.A.J.Peter under a sale deed dated 07.03.1981. The plaintiff family members (i.e., plaintiff and his sister) are enjoying the easementary rights (i.e., right of way, air and light) and the plaintiff's sister has put up a compound. The plaintiff has no knowledge that what is the width of the road. The said Sri.A.J.Peter purchased the above said property from one Smt.Madamma under a sale deed dated 24.11.1979. The said Smt.Madamma in turn purchased the said property from one Sri.Sanjeev Rao under a sale deed dated 07.11.1963. The said Sri.Sanjeeva Rao had purchased the said property from the original 5 O.S. No.17411/2004 land owner Sri.Muniswamy Gowda under a sale deed dated 11.03.1963. The said Sri.Muniswamy Gowda was the original owner of the entire land in Sy.No.44 and he had formed number of sites in the said land as per the plan. Except the plaintiff no one else, much less the defendants have got any a manner of right, title or interest over the plaint schedule property. After mutating the name of Smt.H.K.Saroja in the revenue records, obtained a sanctioned plan and also has constructed a building about 633.50 sq.ft. in the year 2003. After effecting the partition amongst the family members, as per partition deed, the name of the plaintiff has been entered in the katha register and has paid the taxes to the concerned department regularly. Recently the defendant No.3 along with the office bearers came near the suit property claiming that the suit schedule property has been allotted in favour of their Samsthe by the Karnataka Housing Board, Bengaluru/1st defendant and also threatened the plaintiff with dire consequences.
Immediately the plaintiff made enquiries with the defendant No.1 Board and later on learnt that the plaint schedule property styled as civic amenities site bearing No.27/A have been allotted to the 6 O.S. No.17411/2004 defendant No.3. The said site has been allotted as a stray site on 23.04.2001, which is not at all available and there exists no site belonging to the defendant No.1 and the said stray site is in fact a private road and originally formed out for the use of a private layout and the above said private layout comes under the limit of BBMP. It is further case of the plaintiff that the defendants No.1 and 2 have no rights whatsoever over suit schedule property and the above said private layout and the Karnataka Housing Board Colony commences 300 meters away from the site No.27 and the schedule property. The defendant No.1 got no rights whatsoever to allot the said road in favour of the defendant No.3 and by doing so they have violated the principles of natural justice and deprived the rights of plaintiff; i.e., his right of way, air and light and also the plaintiff by continuously using the said road, acquired a rights of easement and prescription by way of the adverse possession over the schedule property. One Sri.B.P.Mruthyunjaya along with 5 others had filed various suits bearing Nos. O.S.No.1380/73, 1384/73, 1388/73, 1392/73 and 1396/73, against the Housing Commissioner, Karnataka Housing Board, Bengaluru, and others 7 O.S. No.17411/2004 for declaration and for seeking permanent injunction on the file of V Addl. Munsiff, Bengaluru. After contest, the said suits came to be decreed by the court by its judgment and decree dated 18.04.1977, wherein the plaintiffs were declared that they were the owners in possession in the respective suit schedule properties and also permanent injunction has been granted and decreed the suits against the defendant No.1. Aggrieved by the same, the Karnataka Housing Board preferred an appeal before the I Addl. Civil Judge, Bengaluru, in R.A. No.207/1977 to 211/1977, and the same was dismissed and confirmed the order of the Munsiff passed in O.S. No.1380/73 and other suits. The plaint schedule property involved in the above said suits and the plaint schedule property involved in the present case are all one and the same. The defendant No.1 has no right to allot the plaint schedule property in favour of the defendant No.3. In spite of issuance of notice dated 10.12.2003 to both the defendants No.1 and 2 calling upon them to cancel the suit schedule property allotment made in favour of the defendant No.3; but, they have not complied with the same. Hence, this suit arose. 8 O.S. No.17411/2004
4. After issuance of the suit summons and after duly served upon them, the defendant No.2 has not chosen to appear before this court, he has been placed exparte; and the defendants No.1 and 3 appeared through their respective advocates Sri.T.N.Shiva Reddy & Sri.B.G.Thammaiah; thereafter both the defendants have filed their separate WS.
5. Case of the defendant No.1, in brief, is as below:-
Defendant No.1 contended in its WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. Totally this defendant denied that the plaintiff is the absolute owner of the suit property. However, this defendant does not dispute that the said property was formed in a property out of Sy.No.44, and is situated in K.H.B. Colony. It is admitted that the sale deed dated 07.03.1981 discloses the name of the vendor of Smt.H.K.Saroja as A.J.Disa and not as A.J.Peter. More over, the alleged vendor of H.K.Saroja herself had no valid title or possession and right to convey the marketable title of the suit property in favour of Smt.H.K.Saroja and the question of the plaintiff deriving any valid title or possession over the suit property 9 O.S. No.17411/2004 from Smt.H.K.Saroja under a deed dated 15.11.2002 does not arise and even the said Smt.H.K.Saroja had not derived any right, over the suit property under a deed dated 07.03.1981 in law and it is strictly to be proved. Further it is admitted that the suit property said to have been acquired by Smt.H.K.Saroja under the deed dated 07.03.1981 does not include the roads situated at the Western side of the property bearing No.27 and also it does not includes the road, situated on its Southern side. It is contended that the plaintiff with an ulterior motives suppressed the exact and correct measurements of site No.27 by furnishing more measurements and wrong boundaries by including the said Southern side road by wrongly branding it as property bearing No.27/A, though the same is never property of the plaintiff or his predecessors-in-title, at any time. Further denied that the plaintiff and his family are in possession and enjoyment of said property, and enjoying the alleged easementary right (D.C. right of way, air and light) and the plaintiff sister had put up compound. Further denied the para Nos.4 and 5 of the plaint and the said predecessors had also conveyed site No.27, successively to the subsequent purchasers, 10 O.S. No.17411/2004 the site No.27 along with the said road and rights and even if there are such alleged documents as retained upon by the plaintiff, the same are strictly to be proved with regard to its validity and its binding-ness being upon the defendant board. It is further contended that the suit is highly speculative in nature and has been moulded with clear pleading to lay claim for ownership under the guise of the suit, that the suit property is a road and the plaintiff is enjoying the same with alleged easementary rights, though such easementary rights cannot be claimed in respect of public road, and cannot be perfected by any length of time of alleged adverse possession, that to against undetermined persons and admittedly it is not only the access to the site No.27. Further denied the para Nos.6 and 7 of the plaint and it is admitted that the said area in which private sites were framed in said Sy.No.44, came under the control of the defendant No.1 board later and all the common roads facilities and space left for common use of the occupants which came to vest with the defendant No.1 board. Further it is denied that the khatha of the suit property was lawfully transferred in favour of the plaintiff by the BBMP, and further contended that it 11 O.S. No.17411/2004 must have been obtained due to misrepresentation and such documents will not give any valid right, title and possession and rights as claimed by the plaintiff over the suit property. Further it is admitted that the said Southern road of site No.27, was a dead end road and it was blocked by the property of Post and Telegraphic Office and the said Southern road was stopped being used by the public as a road and the said road had already become vested with the defendant No.1, when the area came under its control as it was left as a road and since it cease to use as a road, it came to be treated as civic amenity site by the defendant No.1 and ultimately it came to be allotted in favour of the defendant No.3 for use of its activities on 23.04.2001 and the said defendant No.3 had already deposited the required amount in favour of this defendant and the defendant No.1 had every right to allot the same to the defendant No.3 and allotted the same as site No.27/A, to the defendant No.3 by exercising the powers vested in it and the plaintiff has no locus standee to question the same. Further it is contended that the pleadings and gist of the plaint discloses that the plaintiff is virtually claiming that the suit site belongs to the 12 O.S. No.17411/2004 plaintiff, without making proper valuation of the same at the market price and without paying proper court fee for the any of the reliefs sought for in the plaint. Further denied the para No.9 of the plaint and it is also admitted that the notice dated 17.01.2005 said to have been issued on behalf of the plaintiff to this defendant and suitably has been replied. Further contended that there is no cause of action for the suit and hence, the suit against the defendant No.1 is liable to be dismissed.
6. Case of the defendant No.3, in brief, is as below:-
Defendant No.3 admitted in its WS that it is a registered organization represented in this suit by its Secretary. Further admitted that the plaintiff is not personally known to the defendant No.3 and it only knows that plaintiff lives in property No.27 and it does not know anything about plaintiff's alleged ownership, title or possession of site number property of 27. It is denied the para Nos.3 to 7 and further admitted that the plaint schedule is a vacant site with its measurements and same is situated towards the South of property No.27. The property No.27 and property No.27A are two different distinct properties. Further denied that the 13 O.S. No.17411/2004 description of Southern boundary to property No.27 which is shown as a road is actually it is not road as alleged, site No.27A is a civic amenity site. It is alleged that the defendant No.1 has formed layout in Sy.No.44 and developed 335 various category houses and the entire layout admittedly belonged to Karnataka Housing Board, the schedule property is a vacant site belongs to KHB. Further alleged that in view of the actual geographical distribution of the layout, the extent of the property which is East to West: 40 ft., and North to South: 20 ft., and this property actually lies in the dead end corner of the layout, on the South East corner and the outer side Eastern boundary belongs to Karnataka Health Department and they have raised the compound wall in between their Western boundary and Eastern boundary of site No.27A and that on the Southern boundary of the schedule site No.27A, the department of Telecommunications have raised the compound wall and there is also compound wall dissecting property No.27 and 27A and the compound walls are in existence for more than a decade and site No.27A could not be used for any other purpose and the vacant site is allotted to the defendant No.1, 14 O.S. No.17411/2004 the site No.27 has a road to its West also. Further alleged that the defendant No.3 has to carry out its human service which has applied to Karnataka Housing Board for allotment of the civic amenities site, on consideration of the request of the defendant No.3, in its Board Meeting which has been resolved to allot the site schedule property to the defendant No.3 and the defendant No.3 in regard to out right sale basis offered by KHB and an amount has deposited a sum of Rs.2,90,400/- being the total consideration, which is a sale price payable to the defendant No.1/KHB and the defendant No.1 need only to execute regular sale deed to convey title and possession to the defendant No.3, at the same stage the plaintiff has brought out the imaginary suit to harass the defendant No.3 and the defendant No.3 is transacting with the defendant No.1/KHB for allotment of site No.27A. Further denied para No.8 of the plaint and it is contended that the plaintiff or his earlier title holders in possession of site No.27 are nothing to do with independent site No.27A belonging to the defendant No.1/KHB. Further contended that the plaintiff is not in possession and also denied the alleged interference of the defendants. It is also further 15 O.S. No.17411/2004 denied the knowledge of allotment of site 27A by the defendant No.1 in favour of defendant No.3 is very recent; but it is well known to the plaintiff that from the date of allotment dated 23.04.2001, the plaintiff has not filed this suit within time. Further it is alleged that the defendant No.3 do not know regarding the exchange of notices taken place between him and defendant Nos.1 and 2. Further contended that there is no cause of action for the suit and the plaintiff has not paid proper court fee and the defendant No.3 has complied with all the procedural formalities with the defendant No.1/KHB and the defendant No.3 is ready to obtain sale deed and the defendant No.3 after becoming owner for the service to human kind wants to take up construction work in site No.27A and hence, the suit against the defendant No.3 is liable to be dismissed.
7. From the above said pleadings, following issues have been framed:-
1. Whether the plaintiff proves that he is using the suit property as a way since time immemorial acquired a right easementary of prescriptive on the date of suits?16 O.S. No.17411/2004
2. Whether the plaintiff proves that defendant No.1 and 2 had no right to allot the suit properties to defendant No.3?
3. Whether the sale deed executed by defendant No.1 in favour of D.3 is null and void not binding on plaintiff?
4. Whether the allotment of suit properties in favour of D.3 is liable to be cancelled?
5. Whether plaintiff is entitle for permanent injunction?
6. What order or decree?
8. On behalf of the plaintiff, affidavit evidence of GPA holder of the plaintiff has been filed and he has been examined as P.W.1, and also filed affidavit evidence of plaintiff witness by name Sri.H.V.Rajagopala Gowda as a P.W.2, and Exs.P.1 to P.18 documents have been got marked.
9. On the other hand, on behalf of the defendants also, affidavit evidence of President of the defendant No.3, has been filed and he has been examined as D.W.1 and also filed affidavit evidence of the defendant No.1 witness by name Sri.Gangadaraiah as a D.W.2, and Exs.D.1 to D.37 documents have been got marked. 17 O.S. No.17411/2004
10. Ex.P.1 is the general power of attorney executed by plaintiff in favour of Sri.R.Kariyappa, Ex.P.2 is the partition deed dated 15.11.2002, Ex.P.3 is the sale deed dated 17.12.1962, Ex.P.4 is the sale deed dated 07.11.1963, Ex.P.5 is the sale deed dated 05.12.1979, Ex.P.6 is the sale deed dated 07.03.1981, Ex.P.7 is the khatha certificate, Exs.P.8 and P.9 are the notices, Exs.P.10 and P.11 are the postal acknowledgements, Ex.P.12 is the notice, Exs.P.13 and P.14 are the endorsements issued by the BDA, Ex.P.15 is the endorsement issued by the KHB, Ex.P.16 is the certified copy of judgment and decree in O.S.Nos.1380/73, 1384/73, 1388/73, 1392/73 & 1396/73, Ex.P.17 is the printed sketch, Ex.P.17 (a) is the printed sketch relevant portion marked, and Ex.P.18 is the khatha certificate.
11. Ex.D.1 is the copy of the representation to KHB, Ex.D.2 is the copy of letter from KHB, Ex.D.3 is the certified copy of the layout plan of site formed in Sy.No.44, Ex.D.4 is the letter of KHB, Ex.D.5 is the khatha certificate, Exs.D.6 to D.9 are the challans of State Bank of Mysore, Ex.D.10 is the possession certificate issued by KHB, Ex.D.11 is the khatha certificate, 18 O.S. No.17411/2004 Ex.D.12 is the khatha extract, Exs.D.13 to D.19 are the tax receipts, Exs.D.20 and D.21 are the encumbrance certificates, Exs.D.22 and D.23 are the copies of the complaint to the police, Exs.D.24 and D.25 are the acknowledgements issued by police, Ex.D.26 is the registration certificate, Ex.D.27 is the extract of proceedings register, Ex.D.28 is the certified copy of village map, Ex.D.29 is the copy of letter of Assistant Executive Engineer, Ex.D.30 is the copy of official memorandum, Ex.D.31 is the certified copy of sketch of site No.32, Ex.D.32 is the copy of letter of LAO, Ex.D.33 is the copy of letter of KHB, Ex.D.34 is the authorization letter of KHB, Ex.D.35 is the copy of the memo dated 16.09.1989, Ex.D.36 is the certified copy of the sale deed dated 08.09.1972, and Ex.D.37 is the allotment letter.
12. Heard, the learned advocate for the plaintiff and defendants perused the records. In spite of sufficient time granted to the defendants No.1 & 3 counsel, they have remained absent and not placed their arguments; hence, arguments on behalf of defendants No.1 and 3 have been taken as heard. Later on learned 19 O.S. No.17411/2004 advocate for the defendant No.3 has submitted written arguments also and the same has been considered.
13. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: In the negative, Issue No.2: In the negative, Issue.No.3: In the negative, Issue No.4: In the negative, Issue No.5: In the negative, Issue No.6: As per final order, for the following:-
REASONS.
14. ISSUE No.1 to 4: All these issues are interlinked each other; hence, for avoiding repetition I have taken up all these issues for discussion at one stretch. In order to prove the case of plaintiff the GPA holder of the plaintiff got examined as a P.W.1 by reiterating the plaint averments in his chief-examination stated that the plaintiff is his son, who is the absolute owner in possession of 20 O.S. No.17411/2004 the premises bearing No.27, formed in layout in land bearing Sy.No.44, KHB Colony, I Phase, Magadi Road, Bengaluru, having acquired through a family partition dated 15.11.2002. The above said site No.27 was bounded on the East by: Health Office, West by: Road, North by: Site No.28, South by: Road and the said property is a corner property and it is a dead end site and in the Southern side road which runs from West to East is also dead end and the Southern side of the road is also a dead end bounded by Post and Telegraph Office and his son's property. After the property bearing No.27, there lies no other property, since it is a dead end. To approach to property bearing No.27 roads are situated towards which is situated on the Southern side and Western side of the property. Only through these two roads, his son and his family members could use their property bearing No.27. There exists no property bearing No.27/A and the original land owner namely Muniswamappa had not formed any site bearing No.27/A. The total extent of the land belonging to Muniswamappa was 1 acre 21 guntas and had formed a layout of 35 sites of different measurements and had sold to different 21 O.S. No.17411/2004 persons. It is also stated that the said Muniswamappa sold site bearing No.27, to one Sanjeeva Rao under a sale deed dated 17.12.1962. Thereafter, it was sold to number of persons Sanjeeva Rao, Madamma and A.J.Peter one to another and right from the year when the site was sold for the first time to one Sanjeeva Rao, the roads which are situated towards the Southern and Western side to property bearing No.27, the suit schedule property site No.27/A is being enjoyed as Easement of necessity and it is the only way through which light, air and right of way ingress and egress was exercised only to the Southern side of property bearing No.27, since no site existed towards the Southern side of site No.27. It is stated that after Smt.H.K.Saroja purchased the property by obtaining the necessary licence has put up a residential building about 633.50 sq.ft. in the year 2003. P.W.1 further stated that after the partition was effected amongst the family members, the site No.27 was allotted to the plaintiff which is mentioned in K.H.B. Colony, I Phase, Magadi Road, Agrahara Dasarahalli, Bengaluru, in the partition deed and the khata also it is standing in the name of the plaintiff and by paying taxes, he is in possession of the same. It 22 O.S. No.17411/2004 is also stated that the defendant No.1 has neither purchased nor they are the owners nor it is in possession of any piece of land in Sy.No.44 of Agrahara Dasarahalli, Bengaluru North Taluk, Bengaluru. The defendants with an intention to knock off the road portion, have fraudulently and by fabricating the documents have allotted a suit property in favour of the defendant No.3. On the strength of the alleged allotment, the defendant No.3 does not derive any right, title or interest in the suit property as there exists no property bearing No.27/A and formed by the defendant No.1 and in this regard he had got issued a notice to the defendants No.1 and 2 calling upon them to cancel the allotment made in favour of the defendant No.3; but have not complied with the same. P.W.1 further stated that B.P.Mruthyunjaya along with other owners of adjacent properties had filed other respective suits bearing Nos. O.S.No.1380/73, 1384/73, 1388/73, and 1396/73, on the file of V Addl. Munsiff, Bengaluru, when the defendant No.1 and others and tried to restrain interfere with the possession of the aforesaid persons. After contest, the court by its judgment and decree dated 18.04.1977, have declared that the above said persons are the 23 O.S. No.17411/2004 owners and also granted an order of permanent injunction against the defendant No.1/KHB. Aggrieved by the same, the Karnataka Housing Board preferred an appeal before the I Addl. Civil Judge, Bengaluru, in R.A. No.207/1977 to 211/1977, and the same were dismissed and confirmed the order of the V Addl. Munsiff, Bengaluru, passed in the above suits. It is also stated that after approaching to the defendant No.1 by the plaintiff, the defendant No.1 by its letter dated 24.07.2008 has categorically stated that the defendant No.1 has not acquired Sy.No.44 of Agrahara Dasarahalli, Magadi Road, Bengaluru, where the suit property is situated. P.W.1 further stated that since he himself and his vendors were or are enjoying the Easementary rights, from the year 1963, they have acquired easement of necessity rights and more over the windows are put up in the Southern side of site No.27, for the purpose of free flow of air, which cannot be disturbed by the defendants and the suit property is a road and not a site formed by the defendant No.1. Further the plaintiff has got examined the one H.V.Rajagopala Gowda on his behalf as a P.W.2; he has specifically stated in his affidavit evidence that he is the owner in 24 O.S. No.17411/2004 possession of the property bearing No.26, K.H.B. Colony, I Phase, Magadi Road, Bengaluru-79, since 1992 and the plaintiff's property is situated opposite to his house, which are formed in Sy.No.44, Agrahara Dasarahalli, Bengaluru North Taluk, in total measuring 1 acre 21 guntas and the said land was originally belonging to Sri.Muniswamappa, who had formed 35 sites and sold to different persons. P.W.2 further stated that there are no lands belonging to the K.H.B. and it has neither formed any layout nor has formed any sites in Sy.No.44; further stated that the site belonging to the plaintiff is a dead end site and there exist no any site like bearing site No.27/A and immediately after the said dead end, the remaining property situated belongs to Postal and Telegraphics Department on the Southern side and on the Eastern side property belongs to Health Department. P.W.2 further stated that he himself, and the plaintiff and also other property holders in the layout formed in Sy.No.44 of Agrahara Dasarahalli, are using the same for their basic necessity and easementary right of road to ingress and egress.
25 O.S. No.17411/2004
15. On the other hand, D.W.1 who is the President of defendant No.3 stated in her affidavit evidence that the plaintiff is not personally known to them and the plaintiff is residing in the house property No.27 and the plaintiff is not the owner in possession of the suit property. D.W.1 denied that the description of Southern boundary to the property No.27 is being a road. Further it is stated that it is not road; but it is the site No.27A and the same is a civic amenity site allotted to the defendant No.3 by the defendants No.1 and 2. It is also stated that the outer Eastern boundary is belonging to Karnataka Health Department and they have raised the compound wall in between their Western boundary and Eastern boundary of site No.27-A and on the Southern boundary of the schedule site No.27-A, the department of Telecommunications have raised the compound wall and there is also compound wall dissecting property No.27 and 27-A. It is further stated that the said compound walls are in existence for more than a decade and the suit property could not be used for any other purpose, hence this vacant site is allotted to the defendant No.3 and the site No.27 has a alternative road towards the West. It 26 O.S. No.17411/2004 is also denied that the say of the plaintiff that he and his predecessors in title of site No.27 have been in continuous possession of suit property and suit property had been used as easementary right to site No.27. D.W.1 further stated that on consideration of the request of the defendant No.3 for seeking allotment of the civic amenities site, the defendant No.1 in its board meeting resolved to allot the schedule site property to the defendant No.3 and the defendant No.3 have deposited a sum of Rs.2,90,400/- being the total sale consideration for the suit schedule property to the defendant No.1/KHB. Further it is stated that the defendant No.1 has also executed the registered sale deed dated 14.06.2005 in favour of the defendant No.3 and thereby conveyed the absolute title and possession to the defendant No.3. It is stated that recently the defendant No.3 came near the suit property claiming to be the owners having been allotted by the KHB is not correct; but, the defendant No.3 is in possession of suit property from the year 2001. D.W.1 further stated that the plaintiff or his earlier title holders in possession of site No.27 are nothing to do with the schedule independent site property No.27-A and the 27 O.S. No.17411/2004 plaintiff is a stranger, the documents relied upon by the plaintiff are nothing to do with the suit property which absolutely belongs to the defendant No.3. It is also stated that the defendant No.3 have complied with all the procedural formalities with the defendant No.1/KHB and khatha of the suit property is standing in the name of the defendant No.3 and they are paying the taxes and also they are ready to take up construction work for the service of human kind, but with oblique motive to knock of the schedule civic amenity site No.27-A, the plaintiff is unnecessarily harassing the defendant No.3 members. On the basis of the chief-examination of D.W.1 prays for dismissal of the suit of plaintiff. Further the defendant No.1 got examined the one Gangadaraiah, FDA of their department as D.W.2 on behalf of the KHB; he has specifically stated in his affidavit evidence that he is working as FDA under defendant No.1. It is stated that the suit is not maintainable either in law or on facts and it is fundamentally defective. It is also stated that the assertions of the plaintiff he become owner of the premises bearing No.27, formed in land bearing Sy.No.44, KHB Colony, I Phase, Magadi Road, Bengaluru, and he denied that suit schedule 28 O.S. No.17411/2004 property site No.27A was using from the period of plaintiff's previous owner etc.; but it is stated that on account of a family partition dated 15.11.2002, he had executed a GPA in favour of his father are not correct. It is further stated that site No.27 was formed out of Sy.No.44 and it is situated in KHB Colony. D.W.2 further stated that the plaintiff's sister Smt.H.K.Saroja purchased the schedule property from A.J.Peter under a sale deed dated 07.03.1981 are not correct, but when the alleged vendor of Smt.H.K.Saroja itself did not have a valid title then the question of plaintiff getting any right, title and possession over the suit schedule property does not arise and the property acquired by Smt.H.K.Saroja does not include the marginal lands situated at the Western side of the property bearing No.27 and also it does not include the marginal land, situated on its Southern side and also denied that the plaintiff and his family are in possession of the said property enjoying the alleged easementary right (D.C. right of way, air and light) and also plaintiff's sister putting up a compound. It is also stated that the suit is speculative in nature and has been made up only to knock off the property which was under the defendant 29 O.S. No.17411/2004 No.1 possession and now the suit property is in the defendant No.3's possession and the khatha of the suit schedule property does not stand in the name of Smt.H.K.Saroja. It is stated that the said Southern side of site No.27 was a dead end road as it was blocked by the property of post and telegraphic office and the said Southern road was stopped being used by the public as a road and the said road had already become vested with the defendant No.1, when the area come under its control as it was left as a road and since it cease to use as a road, it came to be treated as a civic amenity site by the defendant No.1 and ultimately it came to be allotted in favour of the defendant No.3 for use of its activities on 23.04.2001 and the said defendant No.3 had already deposited the required amount in favour of this defendant and the defendant No.1 had every right to allot the same to the defendant No.3 and allotted the same as site No.27/A. It is stated that since the said property is beyond the jurisdiction of this defendant board, the KHB has not violated lanches. It is denied that the plaintiff is deriving any alleged right of way, air and light and also the rights acquired by the plaintiff by allegedly continuing the adverse possession of the 30 O.S. No.17411/2004 schedule property. D.W.2 further stated that the plaintiff has not sought for relief of declaration of the easementary rights of easements over the suit schedule property and has not valued the same for payment of court fee. It is also stated that he has suitably replied to the notice of plaintiff dated 17.01.2005. It is stated that there is no cause of action for the suit and the plaintiff has not produced any valid documents confirming his title, right and possession over the suit schedule property. On the basis of the chief-examination of D.W.2 prays for dismissal of the suit of plaintiff.
16. Upon perusal of the cross-examination of P.W.1 he answered at the time of his cross-examination by the counsel for defendant No.3 that he is residing in Bengaluru since two or three months earlier to that he was at Rajkoth for about 15 to 20 years and working in Kirloskar Company in Bengaluru City. He denied that he is not a GPA holder as per Ex.P.1 and not authorized to give evidence in respect of the suit schedule property or property No.27. It is also stated that site No.27 was purchased by Saroja in the year 1962 under Ex.P.3 sale deed, then it was a vacant site and 31 O.S. No.17411/2004 also it was a vacant till 2001 or 2003; when he obtained sanctioned plan there were no any civil amenities to the said site formed in Sy.No.44 of Agradasara Village of Muniswamappa. P.W.1 denied that purchasers of the sites formed road in above said survey numbers and obtained a development tax by the 1st defendant and provided all civil amenities to the above said sites. It is also denied that 1st defendant the Commissioner of KHB has formed a road for the sites formed in the above said survey number. It is also stated that the layout formed by the KHB is on the Northern side of the sites formed in Sy.No.44. But, it is denied that KHB layout is also situated on the Western side of the sites formed in Sy.No.44 and further he answered that it might be true he had obtained a sanctioned plan in the year 2003 to put up a construction in site No.27 and also constructed a compound for site No.27 and towards remaining three boundries there is no compound on Southern side of the site No.27. It is denied that there was a compound on the Southern side of the above said site and the same is demolished in the pendency of the suit. But, it is admitted that site No.27/A was a vacant site since last 40 years; but, denied that 32 O.S. No.17411/2004 site No.27/A was never used as a road by the plaintiff and it is on the Western side of site No.27 not on the Southern side of the said site. The road is situated on the Western side of site No.27 and it is a tar road for the said site. Further stated that the road situated on the Southern side of site No.27 is only for site No.27 not for other sites. It is also stated that there is a compound of the office of Post and Telegraph on the Southern side of site No.27/A. There is a health office on the Eastern side of the suit schedule property. House of the plaintiff is on the Northern side of the suit schedule property and there is also road on the Western side of the suit schedule property. It is denied that suit schedule property is not a road and it was never used by the plaintiff as a road for easement of necessity. P.W.1 further answered that he is using the suit schedule property as a road for his own property and also raising flower plants and other plants in it and denied that he has filed a false suit against the defendants only with an intention to harass defendant No.3. He answered regarding Ex.P.1 that he cannot say where it was prepared. But admitted that Ex.P.2 Deed of Partition is not concerned with the Ex.P.1. P.W.1 denied that he 33 O.S. No.17411/2004 has concocted Ex.P.2 Partition Deed wherein he himself written Ex.P.2 (a) and 2 (b) like R.Kariyappa and Kempamma by hand to grab the property of the defendant. Further denied that the boundaries mentioned in Ex.P.3 Sale Deed was not in existence at the time of filing the suit and the boundaries furnished for the suit schedule property are incorrect etc. It is also denied that he has not produced the sale deed dated 07.03.1981 executed by one Peter; but admitted that plaintiff Jayakumar has not signed to ExP.2. It is further stated that site No.27 was the self-acquired property of H.K.Saroja; there are other properties also apart from the properties mentioned in Ex.P.2 Partition Deed.
17. P.W.1 further denied that the KHB has acquired the land surrounding Sy.No.44 of Agaradasarahalli Village and formed a layout. It is also answered that there is a layout of KHB on Northern side of Sy.No.44 and he has paid a betterment charges to KHB in respect of site No.27; but denied that KHB has provided all civic amenities and road for the sites formed in Sy.No.44 and it is also answered that he does not know about the HIG site No.58 formed in the layout by KHB, which is on the Northern side of the 34 O.S. No.17411/2004 Sy.No.44. It is also denied that the layout formed in Sy.No.44 developed by KHB and beneficiaries and owners of the said sites have paid a betterment charges to KHB.
18. It is admitted that the Excise Department has constructed a compound to its property which extends till the suit schedule property. Site No.27 is Northern side of the schedule property. It is denied that suit schedule property is belonging to first defendant and defendant No.3 is in possession of the suit schedule property. Further P.W.1 denied that he is not having any right over the suit schedule property and he is not using the same etc. P.W.1 further stated that H.K.Saroja is his daughter and she has purchased site No.27 in Sy.No.44 situated in KHB Colony and he has been looking after the site No.27 and all transaction relating to the said site. It is also stated that his daughter Saroja had given a representation to KHB and the document Ex.D.1 is representation which is signed by his daughter. Further he answered that he had received the letter from KHB; i.e., Ex.D.2 and the original letter is signed by him. Ex.D.3 is the certified copy of the layout plan of sites formed in Sy.No.44. According to it site No.27A is on the 35 O.S. No.17411/2004 Southern side of site No.27 and signature of his daughter H.K.Saroja is appearing on it. The public are not using site No.27A which is the suit schedule site as a road the wall has been constructed on the Eastern side of site No.27A by the Health Officer of KHB. It is also stated that there is a compound on the Southern side of the suit schedule property which has been constructed by the owner of the site situated on the Southern side and he does not know whether the KHB has allotted site No.27A in favour of 3rd defendant or not. It is also denied that site No.27A is a corner site and 3rd defendant is in possession of the suit schedule site. It is admitted that he himself and his daughter Saroja had given a representation to KHB to sale the suit schedule site in their favour by collecting the consideration fee; but denied that the KHB did not agree to sale the same it in their favour. P.W.1 voluntaries that KHB was agreed to sell suit schedule site in their favour. But, it is failed to sell the same in their favour. P.W.1 denied entire the cross-examinations of page No.18 of P.W.1 relating to the documents Ex.P.2 to 12 and wrong suit filed against the defendants 36 O.S. No.17411/2004 as KHB sold the suit schedule property in favour of 3rd defendant etc.
19. P.W.2 is a neighbouring owner in possession of site No.26 of KHB Colony. He has stated in his chief-examination fully supporting the case of the plaintiff. During his cross- examination of defendant No.1 advocate answered that he is a private employee in private company and residing in KHB Colony since also 1992. At the request of P.W.1 he is giving evidence in this case and this suit is filed for the easementary right over the suit road. But, answered that he does not know in respect of which site suit has been filed. It is further stated that the total extent of Sy.No.44 is 1 acre 21 guntas and seen the mutation register extract relating to the said land. The plaintiff GPA holder Kariyappa filed this suit against the Housing Board and he can produce the layout plan relating to Sy.No.44 and he cannot say the name of all purchasers of the sites purchased in Sy.No.44. It is denied that KHB has formed a layout and sites in Sy.No.44 of A.D.Halli and his site No.26 is situated in KHB Colony. It is admitted that he has paid a betterment charges of his site No.26 to KHB. Further he 37 O.S. No.17411/2004 denied that KHB has formed the roads and provided all civic amenities of the layout formed in Sy.No.44. KHB has formed layout in land which is situated at the distance of 300 meter from Sy.No.44. It is denied that Kariyappa had filed false suit against the defendants and on his request he is deposing falsely supporting to the case of plaintiff.
20. P.W.2 further stated that the measurement of vacant site is about 19 feet North to South and 40 ft. East to West. There is a postal telegraphic office situated on the Western side of the site No.27A and health office is situated on the Eastern side of it. Site No.27A is a last site in the layout; there are no other sites or road situated beyond Sy.No.27A. P.W.2 denied that site No.27A has been allotted in favour of the defendant No.3 by the KHB and defendant No.3 is in possession of the site No.27A. It is also denied that he himself and plaintiff are colluded each other and he is deposing in favour of the plaintiff to grab the site No.27A.
21. On careful perusal of the cross-examination of P.W.1 and P.W.2 it is appearing that both the witnesses have been ascertaining that site No.27A has not been allotted to defendant 38 O.S. No.17411/2004 No.3 by defendant No.1 and it is a road used by the plaintiff as a right of easement over the suit road; it is not a property of KHB layout, which is situated towards the Northern side of the Sy.No.44. Total case of the plaintiff is that site No.27A is a road kept for using of his site No.27 which is a one of the site formed in Sy.No.44.
22. Upon perusal of the plaintiff documents Ex.P.1 is a GPA executed on 16.10.2002 by H.K.Jayakumar in favour of R.Kariyappa relating to the suit property to proceed the present case in hand and other transactions relating to the suit property. Ex.P.2 is a partition deed dated 15.11.2002 held between plaintiff R.Kariyappa and his children Smt.H.K.Saroja and H.K.Jayakumar. Ex.P.3 to P.6 are the sale deed executed by Muniswamappa on 17.12.1962 and sale deed dated 07.11.1963 executed by Sanjeev Rao in favour of Smt.Madamma, sale deed executed by Smt.Madamma on 05.12.1979 in favour of A.J.Peter and another sale deed dated 07.03.1981 executed by A.J.Peter in favour of Smt.H.K.Saroja. In all the sale deeds boundaries of site No.27 measuring 1200 sq.ft. (111.41 sq. meters) are mentioned towards 39 O.S. No.17411/2004 East: Health Office workshop, West: Road, North: Site No.28, South: Road and thereafter telegraph and post office property. Ex.P.7 is a khatha extract of site No.27 situated in Sy.No.44, KHB I Stage, Bengaluru, dated 23.02.2007 standing in the name of plaintiff Jayakumar.H.K. with PID No.18-61-27 issued by the Assistant Revenue Inspector, BBMP. Ex.P.8 is a legal notice issued by the advocate of plaintiff dated 10.12.2003 to the Commissioner of Housing Board and the Secretary of Urban Development Department, 4th Floor, MS Building, Bengaluru, in which it is informed that site No.27A was allotted by the KHB in favour of Jagruti Mahila Abhivrudhi Samithi, Basaveshwaranagar, Bengaluru, which is situated on the Southern side of the plaintiffs and using as a road. It is also stated in the notice that the said road is private road as a CA site and outside of the KHB Colony on which the Commissioner of KHB are not entitled to grant the said road in favour of the above said Samithi and through the notice it is instructed to both the office that to cancel the allotment of the above said site No.27A granted in favour of the above said Samithi; otherwise if he goes to approach to the court of law for 40 O.S. No.17411/2004 seeking cancellation of the same. Another notice Ex.P.9 is also written by the H.K.Saroja to the Commissioner of KHB with request that she has filed relevant records on 27.11.2002 to their office by stating that she has purchased the site No.27 in the year 1980-81 from one Mr.Joseph, which was coming in the layout formed in the year 1960 and she prays to take suitable action against the persons illegal construction erected in the above said site. Ex.P.10 and 11 are the postal acknowledgements of the above said notices and letter sent to Commissioner of KHB. Ex.P.12 is a legal notice dated 17.01.2005 sent by the advocate for father of plaintiff/GPA holder. In the said notice it is brought to the notice of the Commissioner, KHB, that the plaintiff has filed this suit in Addl. City Civil Court (Court Hall No.29) for declaration and such other reliefs to declare the site bearing No.27/A formed as a stray site and KHB is not having any right, title, interest to allot the same in favour of the any persons and also stated that not to proceed with the allotment of the site pending disposal of the suit. Ex.P.13 to 15 dated 11.09.2008, 31.01.2009 and 24.07.2008 are the endorsements given by the Secretary, BDA, Bengaluru. In the said endorsements 41 O.S. No.17411/2004 it is stated that though the open space left Southern side of site No.27 for the purpose of laying road; but their authorities not interested to lay the road in the said place, since health department and telephone department have not used the said place for the purpose of road and already got constructed the compound to their property abutting to it. Therefore, their department has formed the said open space as a site No.27/A and it is allotted to Basaveshwara Jagruthi Mahila Abhivrudhi Sangha on 23.04.2001. It is also stated in the endorsements that the owner of the site No.27 is not having right to question the above said allotment made in favour of above said Mahila Sangha. Ex.P.16 is a certified copy of the clubbed judgment and decree of O.S. No.1380/73, 1384/73, 1388/73, 1392/73, and 1396/73 filed against the Commissioner of KHB and Muniswamappa and B.Mallappa by the different plaintiffs, who are the owners of different sites. In the said common judgment of the 1st Addl. Munsiff, Bengaluru, the above said suits filed against defendants decreed by declaring that the plaintiffs of the respective suits properties mentioned in the above said original suits are a owner 42 O.S. No.17411/2004 and permanent injunction granted against the defendants as not to interfere with the peaceful possession and enjoyment of the plaintiffs and the suit against the defendant No.2 is dismissed. Ex.P.17 is a copy of existing private layout formed at Sy.No.44 Agradasarahalli, Magadi Road, Bengaluru, wherein mentioned that area marked as LMNO is the disputed area which is retained as a road only. Ex.P.18 is a khatha certificate of Municipal Site No.26 situated at 44, KHB I Stage, Bengaluru, standing in the name of one Rajagopala Reddy.H.V. with PID No.18-61-26.
23. Upon perusal of the cross-examination of D.W.1 who is by name Sulochana Reddy, the President of Basaveshwaranagara Jagruthi Mahila Abhivrudhi Samsthe, it discloses that she has stated that she is working as a Chairman of the said Sangha since last 3 years as per the resolution of their Samsthe; but the same document is not produced in this case. Further she admitted that in Ex.P.17 it is shown that to the East of site No.27/A there is a health department property and to the West and South of the said site No.27/A there is already constructed a compound; but she answered that she does not know the property of telephone office is 43 O.S. No.17411/2004 situated towards the North and the property of health department is situated towards the West of site No.27/A. It is admitted that there are number of sites formed in the property of Ex.P.17. Further she answered that she does not know site No.1 to 35 are formed in Sy.No.44 measuring 1 acre 22 gunta of Muniswamappa in the year 1962 and the owners of the above said sites have filed a suit against the KHB by making allegation that the said department has causing nuisance to them and it is also does not know that all the said suits were decreed against the KHB. Further she answered that she does not know that the owners of the above said sites mentioned in Ex.P.17 have filed a objection stating that KHB and CITB have not acquired the said properties. It is admitted that the plaintiff is residing in site No.27 mentioned in Ex.P.17. But, D.W.1 specifically stated that site No.27/A is not a road. Further it is answered that she does not know if the Muniswamappa has formed a site No.27/A in the layout formed by him and KHB had given a endorsement in this regard as per Ex.P.15. It is also admitted that the number of wives of the retired officers also got a membership in their above said Samsthe and site No.27/A is got registered for 44 O.S. No.17411/2004 an amount of Rs.2,90,400/-. It is admitted that the worth of the above said site No.27/A was Rs.5,14,800/- on the date of allotment and further answered that since their Samsthe had a number of documents which will be useful for serving the society. The above said KHB has given a concession for making sale of the said site to their Samsthe. It is also admitted that the resolution passed by the KHB regarding allotment of the site in their favour and the same is with them; but it is denied that purposely the said allotment letter not produced in this case. It is also denied that the above said site is formed colluding with the KHB and it was using as a road by the neighbouring citizens of the said suit property. Further it is denied that KHB has no any powers to change the road as a site No.27/A. It is admitted that on 22.06.2001 the Samsthe had to be got registered the said site for the amount of Rs.5,14,800/- and there was a condition that if not paid the said amount there would be possibility of canceling the allotted site. It is denied that site No.27/A also was in the possession of the plaintiff and Ex.D.6 to D.26 have been created after filing the suit. It is also denied that in order to cause a loss to the plaintiff D.W.1 has been deposing 45 O.S. No.17411/2004 falsely about the suit property. Upon perusal of the cross- examination of D.W.2 Gangadharaiah, S/o.Doddagangaiah, FDA of KHB. He has admitted that Sy.No.44 was earlier agricultural land and he does not know that in the year 1962 in Sy.No.44 measuring 1 acre 21 guntas of Muniswamappa there is formed a 35 sites and among them in site No.27 plaintiff is residing. It is also admitted that according to Ex.D.3 there are appearing a sites like site No.27/A and it is stated that site No.27/A also is a site and it is dead end site. It is denied that Ex.D.3 is a housing board layout and he can produce the layout document regarding the above said sites and site No.27 was left by the Muniswamappa for the purpose of road. D.W.2 further answered that he does not know if the other site owners who have purchased the sites from Muniswamappa were filed a suit and KHB has filed a written statement. Later on all the suits were decreed against the KHB. Further it is denied that site No.2/A of the housing board also one of the site in the above said decreed suits. D.W.2 further answered that site No.27/A is belonging to their department; since Sy.No.44 is also a land Sy. number is relating to their department. It is further answered that 46 O.S. No.17411/2004 he does not know if Ex.P.15 Endorsement is given by stating that to the East of site No.27/A there is a compound of health department and towards the South of the said site there is a situated a compound of telegraphic department. Further denied that site No.27/A is not at all related to D1 and D2, it is a road; but, the defendant No.1 has misused the powers vested with their office and sold the said property as a site No.27/A in favour of D3. It is also denied that the above said site was using by the all site owners as a road for them. It is answered that after receipt of the notice issued by the plaintiff, intentionally 1st defendant has executed a sale deed relating to the suit property in favour of D3. It is also denied that D1 and D2 are not having any rights upon the site No.1 to 35 of the layout.
24. Ex.D.1 is produced by the 1st defendant. It is an certified copy of the application submitted by the H.K.Saroja, who is the earlier owner of the plaintiff to the defendant No.1 stating that the Southern side road abutting to the site No.27 is a dead end road, which is coming under the limits of the housing board may be granted as a additional site by O.C. conveying the same. Ex.D.2 is 47 O.S. No.17411/2004 a certified copy of letter dated 20.01.1989 written by Special Land Acquisition Officer, KHB, Bengaluru, to the Executive Engineer, KHB, Metropolitan Division, Bengaluru, wherein written and requested to the above said Executive Engineer to consider the representation; i.e., Ex.D.1 of H.K.Saroja wherein stated that she is prepared to pay the betterment charges in respect of site No.27 in Sy.No.44 of A.D.Halli. Ex.D.3 is a proposed layout sites of Sy.No.44, Agrahadasarahalli, Bengaluru North, Yeshwanthapura Hobli, Bengaluru, which is disclosing that the suit property which is called 27/A is a dead end property and situated towards the site No.27 of the plaintiff. Ex.D.4 is a letter written by the Assistant Executive Engineer, Karnataka Housing Board, to the defendant No.3 stating that suit property site No.27/A is sanctioned to their Samsthe and the remaining amount of Rs.2,10,400/- payable to the KHB shall be paid to their office immediately within 3 days after receipt of this letter, for which site already they have deposited Rs.80,000/-. Ex.D.5 is a special notice dated 14.09.2005 issued by the Revenue Officer (Gandhinagara), Ramamandira Division, Bengaluru for a khatha registration certificate for the suit property 48 O.S. No.17411/2004 which was left Municipal No.30 in Sy.No.44 of KHB Colony, I Stage, in Ward No.18 and also made a direction to pay the tax of Rs.5,762/- and same shall be paid within 15 days from the receipt of this letter, which khatha will be effected from 01.04.1996. Ex.D.6 is a current account pay-in-slip of State Bank of Mysore, which discloses that defendant No.3 has deposited a amount of Rs.10,000/- on 22.06.2010 to the Head of KHB in the above said SBM for the site No.27/A granted in favour of defendant No.3 and Ex.D.7 to D.9 are also same documents which are disclosing that defendant No.3 has deposited Rs.20,000/- on 26.04.2002 to the KHB (D1) relating to the above said site and on 22.10.2002 paid Rs.50,000/- to the KHB by D3. Ex.D.9 is disclosing that on 20.05.2005 D3 has paid to the account of 1st defendant KHB, remaining payable amount of Rs.2,10,400/- for the above said site No.27/A and also defendants produced a document certified copy of sale deed executed by 1st defendant in favour of the 3rd defendant for the said site on 14th June, 2005, which is bounded by East: Health Department Office, West: Road, North by: Site No.27, South: P & T Office. Ex.D.10 is a possession certificate of site 49 O.S. No.17411/2004 No.27/A issued by the Assistant Executive Engineer, KHB, Cauvery Bhavan, Bengaluru, to defendant No.3 stating that the above said site possession is handed over to them on 23.06.2005. Ex.D.11 is a khatha certificate dated 16.09.2005 and Ex.D.12 is a khatha extract dated 18.08.2010 which documents are relating to Municipal New No.30 in Sy.No.441 of KHB, Kamakshipalya, Bengaluru, with PID No.18-61-30 issued to defendant No.3 for the site measuring 880 Sq.feet. Ex.D.13 and 14 are the tax paid receipts paid by the D3 to the defendant No.1. Ex.D.15 to 18 also a property tax receipts relating to above said site New No.30 from the year 2006-07 till 13.08.2010. Ex.D.20 is a Nil encumbrance certificate of the site No.27/A, A.D.Halli I Main, Basaveshwaranagar, for the period of 01.04.2000 to 31.03.2005 wherein mentioned the boundaries of the site No.27/A, East:
Health Department Workshop, West: 20 feet Road, and North: Site No.27, South: P & T Warehouse. Ex.D.21 is also Nil encumbrance certificate for the period 01.04.2005 to 26.7.2005 in which it is disclosing that above said site No.27/A is sold out for Rs.2,90,400/- by the Assistant Executive Engineer, KHB (D1) in 50 O.S. No.17411/2004 favour of the D3. Ex.D.22 and 23 are the police complaint given on 21.04.2008 and 03.11.2010 by the President of defendant No.3 to the Police Inspector, Kamakshipalya, Bengaluru, stating that the neighbourer of site No.27/A who is a owner of site No.27 one Kariyappa has illegally stored the foundation stones and constructions materials mud etc., on 02.11.2010, when it was enquired to the plaintiff, he clarified to the members of their Samsthe stating that there is a gathered wastage and he wants to clean the same. Through the said complaint their Samsthe is praying for taking necessary action against the plaintiff Kariyappa. Ex.D.24 and 25 are the receipts issued by the PI, Kamakshipalya, for the above said complaints received in their PS. Ex.D.26 is a registration certificate issued by the Registrar of Societies, Bengaluru Urban District, in favour of D3 for disclosing the above said Mahila Abhivrudhi Samsthe registered in their Society. Ex.D.27 is a certified copy of the land acquisition notification of the KHB relating to the lands of Agradasarahalli, Yeshwathpur Hobli, Bengaluru North Taluk, acquired by their office as per Reference No.KHB/LAQ/5/84-85. Ex.D.20 is a village map of the 51 O.S. No.17411/2004 Agradasarahalli, Yeshwanthpur Hobli, Bengaluru North Taluk District, Bengaluru. Ex.D.29 is a certified copy of the letter dated 14.11.1995 submitted to Commissioner of KHB, Bengaluru, by the owner of Site No.32 for seeking levy of betterment charges on site No.32 and allotment of marginal land adjacent to it. Ex.D.30 is the certified copy of official memorandum of the KHB office dated 21st January, 1984 taken place for the allotment of marginal land to Sri.A.M.D'Souza owner of site No.6 measuring 30 ft. x 50 ft of Agradasarahalli Village. Ex.D.31 is also attested copy of KHB map relating to site No.32 measuring 40 x 30 ft. of Agradasarahalli Village, KHB Colony, I Main, Kamakshipalya. Ex.D.32 is a letter dated 16th March 1984 written by the SLO, KHB, to the Executive Engineer, I Division, KHB, Bengaluru, for forwarding the file with challan amount of Rs.12,286/- credited in SBM by A.M.D'Souza towards the betterment charges and marginal land charges of site No.6 in Sy.No.44, A.D.Halli for taking further action in this regard.
Ex.D.33 is certificate of memorandum of the KHB dated 21st January 1984 regarding allotment of marginal land to A.M.D'Souza, owner of site No.6. Ex.D.34 is a authorization 52 O.S. No.17411/2004 given by the Commissioner of KHB to the D.W.1 for representing and giving evidence in this case. Another document is a attested certified copy of conditional deed of sale executed on 30th July, 1974 by the Secretary of KHB in favour of A.M.D'Souza for showing that the site No.6 is sold out to him by the KHB. Ex.D.35 is a memo of site No.23 issued by Executive Engineer, KHB. Ex.D.36 is a another certified copy of the sale deed registered in the office of Senior Sub-Registrar Office, Rajajinagara, Bengaluru, relating to Sy.No.44/4 of Muniswamappa of Agradasarahalli Village, Yeshwanthpura Hobli, Bengaluru North Taluk, Bengaluru.
25. Upon perusal of the above discussed both side plaintiff and defendants evidence and documentary evidence it is crystal and clear that the plaintiff is claiming a easementary right over suit site No.27/A, which is situated towards Southern side of his site No.27 by stating that it is situated towards the Southern side of his property; earlier it was left as a vacant site as a road and it is used by his previous owners till the date of executing the sale deed by defendant No.1 KHB in favour of defendant No.3 and they have established a right of easement by way of prescription since last 53 O.S. No.17411/2004 more than 40 years. Therefore, the plaintiff has continued the enjoyment of the said road by way of prescription to access and ingress to his property and established a right of easement and prescription over the suit schedule property. P.W.2 also stated as to that of P.W.1 stating that since from the period of plaintiff's earlier owners of the site No.27, suit property 27/A is using as a road by the plaintiff and other neighbouring owners of the plaintiff property by way of easement and prescription. Further it is alleged that the suit site No.27/A which is interrupted by the defendant No.1 as a site and sold out to defendant No.3 is not a lawful, plaintiff; i.e., GPA holder of the plaintiff/P.W.1 prayed for cancellation of the sale deed and to declare the right of easement over the suit schedule property by way of easement and prescription. On the other hand, it is case of the D.W.1 and D.W.2 that the said suit property was earlier a dead end site after the site No.27 of the plaintiff in Sy.No.44 of A.D.Halli, Yeshwanthpura Hobli, Bengaluru North Taluk, which was left vacant for using and entering the property of Health Department Workshop, which is situated towards Eastern side of it and also to the Northern side P 54 O.S. No.17411/2004 & T property; but, after lapse of some years both the department have got constructed a compound to their property. Therefore, D1- KHB which has acquired the above said Sy.No.44 and in which to the Southern side of site No.27 of the plaintiff property, which suit property is situated; i.e., 27/A is sold out to defendant No.3. In this regard, on 14th June 2005 the absolute sale deed of civic amenity site is executed in favour of the defendant No.3 and on 23.06.2005 as per Ex.D.10 Possession Certificate also issued to D3 and Ex.D.5 Khatha Registration Certificate is also standing in the name of D3. Ex.D.6 to D.9 are the documents disclosing that the sale consideration of Rs.2,90,400/- was paid to KHB by depositing in its accounts maintained in SBM by the defendant No.3. It is pertinent to note that as per the boundaries of the plaint itself disclosing that there is a another alternative road existed in the Western side of the site No.27 of the plaintiff. Since site No.27/A which was a dead end site and which is situated towards the Southern side of the plaintiff property which will be called as a dead end site, it was sold out by the D1 in favour of the defendant No.3. In the cross-examination of the D.W.1 & D.W.2 nothing 55 O.S. No.17411/2004 admissions are taken by the counsel for the plaintiff that the suit property is a road left for plaintiff to enjoy the said road for easement by way of prescription. It is pertinent to note that though the plaintiff has been claiming cancellation of the sale deed executed in favour of the D3 by D1 in respect of site No.27/A, he is not entitled for the same; because nobody others neigbouring site owners of the plaintiff claimed the above said suit property as a road and Ex.D.1 discloses that the earlier owner H.K.Saroja of the plaintiff, she herself submitted a application to the KHB for seeking grant of site No.27/A as a marginal land to the site No.27. The very application submitted by the plaintiff earlier owner also presently prevent the claimed reliefs of the plaintiff; because once they cannot be claimed for grant of the suit property as a marginal land and the same owners later on cannot claim for easement of right over the same property. Defendant No.3 has produced the other documents Ex.D.30 to 35 also are disclosing that the marginal lands are granted to the owners of the property which are adjacent to the other marginal lands and the same are granted by the KHB to the adjacent owners site No.32 etc. Under such 56 O.S. No.17411/2004 circumstances, it is crystal and clear that plaintiff cannot claim the easementary right over the suit schedule property on which the defendant No.1 had a absolute right to alienate the suit property to the D3 as the such lands are granted to some other beneficiaries as above stated. More over, D3 is a Mahila Abhivrudhi Samsthe of Basaveshwaranagar, Bengaluru, established for the welfare and protecting the social rights of the Women's of the said Colony as already above discussed, since the plaintiff is having a alternative road towards Western side of his property No.27. Therefore, he is not entitled for the suit reliefs and also the decision cited by the plaintiff ILR 2010 KAR 11 in the case of B.R.Ganganna Gowda since dead by LR's v/s The State of Karnataka by its Secretary, Department of Revenue and others is not applicable to the case of plaintiff; because some and substance of the present suit is different with the some and substance of the above said subject matter of the suit involved in the above said decision. For all the above discussed reasons I would like to say that the plaintiff has failed to prove the issue No.1 to 4. Hence, I would like to answer Issue No.1 to 4 against the plaintiff as a Negative. 57 O.S. No.17411/2004
26. ISSUE No.5: In view of the above said my findings given to issue No.1 to 4 it is clearly appearing that the plaintiff has caused a interference by claiming the cancellation of sale deed executed by D1 in favour of the D3 relating to suit property and easementary right over it. It itself shows that the plaintiff has been illegally claiming the suit schedule site as a road for his right of easement and necessity to which he is not entitled; because plaintiff site No.27 is having a another road towards Western side of it as a alternative road. Therefore, the sale deed executed by D1 in favour of the defendant No.3 and other possession certificate etc., given to D3 relating to dead end site 27/A; i.e., suit property, which is situated towards the site No.27 of plaintiff at any cost cannot be cancelled. If, such any cancellation is made it causes irreparable loss and hardship to defendant No.3 and also if reliefs claimed by the plaintiff regarding easement right over the suit property also are not considerable against the defendant under the provision of right of Easement Act. In total it is clear that the plaintiff has not proved the case of plaintiff as he is entitled for the permanent injunction 58 O.S. No.17411/2004 against the defendants as prayed for. Hence, I would like to answer issue No.5 also against the plaintiff as a Negative.
27. ISSUE No.6: In view of my findings given to above said issue Nos.1 to 5, I proceed to pass the following:-
ORDER.
Suit of the plaintiff is dismissed without costs.
Draw the decree accordingly.
(Dictated to the Stenographer on online computer, thereof corrected and then pronounced by me in the open court on this the 14th day of January, 2016).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 - Sri.R.Kariyappa
P.W.2 - Sri.H.V.Rajagopala Gowda
List of documents exhibited for the plaintiff:
Ex.P.1 - General Power of Attorney
Ex.P.2 - Partition Deed dated 15.11.2002
Ex.P.3 - Sale Deed dated 17.12.1962
59 O.S. No.17411/2004
Ex.P.4 - Sale Deed dated 07.11.1963
Ex.P.5 - Sale Deed dated 05.12.1979
Ex.P.6 - Sale Deed dated 07.03.1981
Ex.P.7 - Khatha Certificate
Ex.P.8 & 9 - Notices
Ex.P.10 & 11 - Postal Acknowledgements
Ex.P.12 - Notice
Ex.P.13 to 15 - Endorsements
Ex.P.16 - C/C of Judgment and Decree in
O.S.Nos.1380/73, 1384/73, 1388/73,
1392/73 & 1396/73.
Ex.P.17 - Printed Sketch
Ex.P.17 (a) - Printed Sketch relevant portion marked
Ex.P.18 - Khatha Certificate
List of witnesses examined for the defendants:
D.W.1 - Smt.Sulochana Reddy
D.W.2 - Sri.Gangadaraiah
List of documents exhibited for the defendants:
Ex.D.1 - Copy of Representation to KHB
Ex.D.2 - Copy of Letter from KHB
Ex.D.3 - C/C of Layout Plan
Ex.D.4 - Letter of KHB
Ex.D.5 - Khatha Certificate
Ex.D.6 to 9 - Challans
Ex.D.10 - Possession Certificate
Ex.D.11 - Khatha Certificate
Ex.D.12 - Khatha Extract
Ex.D.13 to 19 - Tax Receipts
Ex.D.20 & 21 - Encumbrance Certificates
Ex.D.22 & 23 - Copies of Complaint
Ex.D.24 & 25 - Acknowledgements
Ex.D.26 - Registration Certificate
Ex.D.27 - Extract of Proceedings Register
Ex.D.28 - C/C of Village Map
60 O.S. No.17411/2004
Ex.D.29 - Copy of Letter of Assistant Executive
Engineer
Ex.D.30 - Copy of Official Memorandum
Ex.D.31 - C/C of Sketch of Site No.32
Ex.D.32 - Copy of Letter of LAO
Ex.D.33 - Copy of Letter of KHB
Ex.D.34 - Authorization Letter of KHB
Ex.D.35 - Copy of Memo dated 16.09.1989
Ex.D.36 - C/C of Sale Deed dated 08.09.1972
Ex.D.37 - Allotment Letter
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
61 O.S. No.17411/2004
Judgment pronounced in the Open
Court(vide separate order).
ORDER
Suit of the plaintiff is dismissed
without costs.
Draw the decree accordingly.
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.