Bangalore District Court
Smt.Gayathri vs The Commissioner on 25 September, 2018
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 25th day of September 2018.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge, Bengaluru.
O.S.NO.7218 / 2005
PLAINTIFF : SMT.GAYATHRI,
W/o. Late Gajapathi Rao,
Aged about 55 years,
2nd Main Road, 1st Stage, 1st Phase,
West of Chord Road, Manjunath Nagar,
Bengaluru-560 010.
(By Sri.B.P.Puttasiddaiah, Advocate.)
AND:
DEFENDANTS: 1. THE COMMISSIONER,
Bengaluru City Corporation,
Bengaluru-560 002.
2. SMT.K.PADMAVATHI,
W/o. K.Linga Gowda,
Dead by LRs.-
(a) K.LINGEGOWDA,
S/o. Late Kalappa, Aged about 58 years,
(b) MISS.NAVYASHREE,
(Major in Age),
D/o. K.Linge Gowda,
2 OS.7218/2005
Both are residing at No.20/a, 2nd Main,
1st Stage, West of Chord Road,
Manjunath Nagar, Bengaluru-10.
3. THE COMMISSIONER,
BDA, Bengaluru-560 020.
(D1 By Sri.S.N.Prashanth Chandra,
Advocate.)
(D2 By Sri.T.Jayaprakash, Adv.)
(D3 By Smt.Nirupama Patil, Adv.)
*****
i) Date of Institution of the 22.09.2005
suit.
ii) Nature of the suit. Mandatory Injunction &
Permanent injunction.
iii) Date of the
commencement of 04.06.2010
recording of evidence.
iv) Date on which the
judgment was pronounced. 25.09.2018
v) Total Duration Year/s Month/s Days
13 -- 03
*****
JUDGMENT
The plaintiff initially filed the suit against the defendants No.1 and 2 seeking relief of Mandatory Injunction directing defendant No.2 to remove the 3 OS.7218/2005 unauthorized construction made in the setback in schedule 'B' property and encroached portion in schedule 'A' property and handover encroached portion to plaintiff, failing which defendant No.1 be directed to demolish and remove the unauthorized construction and consequential relief of permanent injunction. Subsequently, plaintiff arrayed the Commissioner, BDA as defendant No.3 and amended the pleadings by inserting prayer at Para a-1 and schedule 'C'.
'A' schedule Property bearing No.20, situated at 2nd Main Road, 1st Stage, 1st Phase, West of Chord Road, Manjunatha Nagar, Bengaluru-10, measuring East to West 22+20/2, North to South 45 feet, consisting of 5 tenements, which is bounded on East by : Property No.20/A, belong to 2nd defendant, West by : Property No.19, North by :
Site No.7, South by : Road.4 OS.7218/2005
'B' Schedule Property bearing No.20/A, 2nd Main Road, 1st Stage, 1st Phase, West of Chord Road, Manjunath Nagar, Bengaluru-10, measuring East to West 20+29/2, North to South 45 feet, which is bounded on East by : Property bearing No.21, West by :
Plaintiff's property, North by : Property No.7, South by : Road.
'C' Schedule The total encroached portion in the schedule 'A' property which is measuring East to West 3+5/2 and North to South 36 feet, which is bounded on East by : 2nd defendant's property, West by : Property bearing No.20, North by : Property bearing No.7 and South by :Road.
These properties are treated as suit schedule properties by the plaintiff for the sake of convenience. 5 OS.7218/2005 .2. The plaintiff pleaded that she is absolute owner in possession of property bearing No.20, measuring East to West 20+20/2, bounded on the East by : Property bearing No.20A belongs to defendant No.2, West by : Property No.19, North by : Property No.7, South by : Road, situated at 2nd Main, 1st Stage, 1st Phase, West of Chord Road, Manjunatha Nagar, Bengaluru. It is averred that plaintiff purchased the property through registered Sale Deed from BDA on 25.08.2003. Khatha of the property purchased has been made in her name and she is paying taxes. The plaintiff treated the property purchased as schedule 'A'. It is averred that defendant No.2 is owner of schedule 'B' property, which is situated on the eastern side of schedule 'A', measuring East to West 20+29/2, North to South 45 feet. The defendant No.2 acquired schedule 'B' property through registered Sale Deed on 27.06.2002. The plaintiff averred that there is no marginal land in between schedule 'A' & 'B' properties. The defendant No.3 knowing fully well about this fact and without proper enquiry, spot visit, 6 OS.7218/2005 without verifying the documents of adjacent owners, executed marginal land Sale Deed on 27.06.2005 in favour of defendant No.2, which measures East to West 0.91+0.46/2 feet North to South and 9.14 feet. The plaintiff averred that defendant No.3 has no right, title or interest to execute such a Sale Deed to the property belongs to plaintiff having acquired under the registered Sale Deed on 10.12.2003, therefore, the plaintiff caused notice to defendant No.3 calling upon the defendant No.3 to cancel the marginal land Sale Deed dated 27.06.2005. Inspite of service of notice, defendant No.3 has not taken any steps. Therefore, the plaintiff constrained to approach the Court seeking relief of cancellation of said Sale Deed and for possession of encroached area.
The plaintiff described the land for which defendant No.3 executed Sale Deed as schedule 'C' property. The defendant No.2 also aware of the fact that there is no marginal land in between schedule 'A' & 'B' properties and by suppressing the fact and by playing 7 OS.7218/2005 fraud on the authority, obtained the Sale Deed, which is nullity in the eye of law. The plaintiff further averred that subsequent to purchase of schedule 'B' property by defendant No.2 started unauthorized construction during third week of January, 2005 by laying pillars, contrary to Building Byelaws and without leaving setback and by encroaching portion of schedule 'A' property. At that time, plaintiff requested defendant No.2 to put up construction as per Building Byelaws by leaving proper setback. Inspite of it, the defendant No.2 continued construction by erecting pillars in the setback area. The plaintiff approached jurisdictional Engineer to take necessary action against defendant No.2, but the jurisdictional Engineer did not take any action. As the Engineer has not taken any action against defendant No.2, approached defendant No.1 and requested to remove the construction made in the setback area and to stop further construction undertaken by defendant No.2. The defendant No.1 also has not taken any action and allowed defendant No.2 to complete 8 OS.7218/2005 construction. The plaintiff alleged that defendant No.2 by making encroachment over schedule 'A' property erected wall and put windows, grills, doors in the setback area. The defendant No.2 has no authority to construct building in the setback area. As defendant No.1 also fails to take necessary action against defendant No.2, the plaintiff constrained to file the present suit. Cause of action accrues to the plaintiff to file the suit on the date on which plaintiff approached jurisdictional Engineer on 28.03.2005 and when she approached defendant No.1 on 18.07.2005. .3. In pursuance of summons, defendants put their appearance and submitted written statement. .4. The defendant No.1 in the written statement admits that schedule 'A' property belongs to plaintiff and schedule 'B' property belongs to defendant No.2. The defendant No.1 averred that plaintiff alleged unauthorized construction by defendant No.2 over schedule 'B' property 9 OS.7218/2005 contrary to Building Byelaws without leaving setback and encroaching a portion of schedule 'A' property. In this regard, jurisdiction Field Engineer conducted spot inspection of schedule 'A' & 'B' properties and measured the same. Schedule 'A' property as per actual measures 21+22/2 X 45 feet, as per records 22+20/2 X 45 feet. Schedule 'B' property as per actuals 23+24.4/2 X 45 feet, as per records 22.+29.4/2 X 45 feet. The defendant No.2 has extended front portion of building up to 23 feet as against 22 feet. The defendant No.1 averred that at the time of spot inspection of schedule 'A' & 'B' properties though defendant No.2 stated that BA has issued Possession Certificate with respect to additional land measuring 0.91+0.46/2 meters East to West and 9.1 meters North to South, however, defendant No.2 has not produced the same. In the absence of production of documents, the jurisdictional Engineer held that defendant No.2 has encroached the land belongs to plaintiff, accordingly, it has in possession under KMC Act. The 10 OS.7218/2005 defendant No.1 denied the averments made out in the plaint as to defendant No.1 has not taken any action against defendant No.2 and permitted defendant No.2 to do the construction work. The defendant No.1 averred that as per complaint received orally from the neighbors residing nearby schedule 'A' & 'B' properties. The Field Officers of defendant No.1 inspected the spot even during night time and found that defendant No.2 was not carrying on construction work. The defendant No.1 averred that during spot inspection, it is denied that defendant No.2 ha encroached the setback area by putting up MN.S. Grills. Therefore, the defendant No.1 will take suitable action after receiving the reply to the notice from defendant No.2 for violating Building Byelaws.
.5. The defendant No.3 in the written statement denied the averments made out in Para-3 and 4 of the plaint as false and called upon the plaintiff to prove the same. The defendant No.3 also denied the averments made out in 11 OS.7218/2005 Para-4 of the plaint as false. Te defendant No.3 averred that on the request of defendant No.2 and after confirmation of the Report of Engineers of defendant No.3 authority about the availability of marginal land measuring 6.26 sq. meters allotted the same to defendant No.2. After remittance of land value, a separate Sale Deed has been executed on 28.06.2005. The defendant No.3 denied the averments made out in Para-5, 6, 7 of the plaint and called upon the plaintiff to prove the same. The defendant No.3 contended that averments made out in Para-8 of the plaint does not pertains to defendant No.3. No cause of action accrues to the plaintiff to file the suit. The defendant No.3 is not a necessary party to this suit. No notice under the provisions of BDA Act is issued before instituting the suit against BDA. The plaintiff has not approached the Court with clean hands and is not entitled for relief sought.
.6. The defendant No.2 in the written statement contended that suit of the plaintiff is false, frivolous, 12 OS.7218/2005 vexatious and not maintainable in law or on facts. The plaintiff filed the present suit with an intention to harass the defendants. The averments made out in Para-3 of the plaint is false. The defendant No.2 admits that she is owner of schedule 'B' property and purchased through registered Sale Deed on 27.06.2002. The property measures East to West 6.10+8.83/2 and North to South 13.71 meters. The defendant No.2 averred that she has purchased marginal land from BDA for consideration of Rs.25,078 through original Sale Deed in the year 2005. It is averred that the marginal land is abutting to her property, which measures East to West 0.91 + 0.47/2 and North to South 9.14 meters. The defendant No.2 contended that plaintiff has not averred about purchase of said marginal land, which is abutting to her property. The defendant admits that she has constructed the building subsequent to purchase as per sanctioned plan and licence issued by defendant No.1. The defendant No.2 denied the averments made out in Para-5 of the plaint as false. The 13 OS.7218/2005 defendant No.2 further denied the averments as to subsequent to purchase of schedule 'B' property started unauthorized construction during third week of January, 2005 and laid pillars contrary to Building Byelaws without leaving setback and by encroaching portion of schedule 'A' property. The defendant No.2 denied the plaint allegation as to defendant No.2 encroached portion of 'A' schedule property and erected wall and put windows, grills and doors in the setback area. The defendant No.2 pleaded that she is owner and possessor of schedule 'B' property and is having right, title and interest. The defendant No.2 contended that she has already constructed building as per sanctioned plan and is residing in it from prior to filing of the suit, therefore, the suit is infructuous. The defendant No.2 averred that if at all any deviation while putting construction on schedule 'B' property, it is the defendant No.1, who has to take action as per the provisions of KMC Act. The defendant No.2 pleaded that plaintiff has not stated anything in the plaint as to at the time of putting 14 OS.7218/2005 construction on schedule 'A' property, plaintiff left 2.6 feet vacant land. Further it is not the case of plaintiff that she is owning vacant land beyond her constructed building on vacant site i.e., eastern side of 'A' schedule property. Therefore, the question of encroachment by defendant No.2 does not arise at all. The defendant No.2 contended that she has not made any encroachment on the property belongs to plaintiff. The defendant No.2 denied the averments made out in Para-6, 7, 8 and 9 of the plaint as false and called upon the plaintiff to prove the same. No cause of action accrues to the plaintiff to file the suit. .7. After amendment of plaint, defendant No.2 filed additional written statement. The defendant No.2 denied the averments made out in Para-4 of the plaint as fully correct. The defendant No.2 averred that defendant No.3, who is absolute owner and possessor of marginal land has conveyed it in favour of defendant No.2 through registered Sale Deed. The marginal land belongs to BDA situated on 15 OS.7218/2005 the eastern side of schedule 'B' property and it is no way concerned or connected to schedule 'A' property belongs to plaintiff. After purchase of marginal land, she is in possession and enjoyment of the same, in order to knock off the marginal land, plaintiff filed the present suit. The marginal land cannot be conveyed to plaintiff as it is situated on the eastern side of schedule 'B' property. The property belongs to plaintiff i.e., schedule 'A' property is situated on the western side of schedule 'B' property. The defendant No.2 contended that relief in respect of schedule 'C' property is false and baseless. The plaintiff is not the owner of marginal land and has no right over it and she cannot seek cancellation of Sale Deed and possession of 'C' schedule property. The plaintiff is not entitled for the relief as prayed in Para 1a of the prayer. On these grounds and substance, prayed for dismissal of the suit with.
16 OS.7218/2005.8. On the basis of pleadings, the following issues are framed:
RECASTED ISSUES
1. Whether plaintiff proves that defendant No.2 has encroached upon 'A' schedule property while putting up construction in the 'B' schedule property?
2. Whether plaintiff is entitled for the relief of Mandatory Injunction against the defendants for demolition of the encroached portion in 'A' schedule property?
3. Whether plaintiff is entitled for the relief of permanent injunction against defendant No.2 as prayed in the plaint?
4. Whether plaintiff proves that schedule 'C' property is part and parcel of schedule 'A' property?
5. Whether plaintiff proves that Sale Deed dated 27.08.2005 in respect of 'C' schedule property executed by BDA in favour of defendant No.2 is null and void and not binding on her?
6. What order or decree?
.9. To prove and substantiate respective contentions, plaintiff examined herself as PW.1 and got marked in all 17 OS.7218/2005 30 documents at Exs.P.1 to 30. The defendant No.2 (a), officials of defendant No.3 are examined as DW.1 to DW.3. The defendants got marked in all 28 documents at Exs.D.1 to D.28. A Court Commissioner has been appointed for making local inspection. The Commissioner submitted report and examined as CW.1, documents are marked at Exs.C.1 to C.6.
.10. Heard the arguments.
.11. The above issues are answered for the reasons, findings given in the foregoing discussions as:
REASONS .12. ISSUES No.4 AND 5: These Issues are inter- connected and to avoid repetition of the discussion, they are taken up jointly for discussion and consideration. 18 OS.7218/2005 .13. The plaintiff pleaded and contended that she is owner of suit schedule 'A' property and defendant No.2 is owner of schedule 'B' property. Schedule 'A' property measures East to West 22+20/2 feet, North to South 45 feet, bounded on East by : Property No.20A belongs to defendant No.2, West by : Property No.19, North by : Site No.7, South by : Road. The schedule 'B' property measures East to West 20+29/2 feet, North to South 45 feet, bounded on East by : Property No.21, West by : Property belongs to plaintiff, North by : Property No.7, South by :
Road. There is no marginal land in between schedule 'A' & 'B' properties. The defendant No.3 without proper enquiry and verifying the documents of adjacent owners executed a marginal land Sale Deed on 27.06.2005 in favour of defendant No.2, defendant No.3 has no manner of right, title and interest to execute such a Sale Deed. The defendant No.3 executed Sale Deed in respect of property belongs to her. Therefore, the Sale Deed executed by defendant No.3 dated 27.06.2005 is nullity in law. On the 19 OS.7218/2005 other hand, defendant No.2 admits the contention of plaintiff as to marginal land Sale Deed executed by defendant No.3 in favour of defendant No.2 is not situated in between schedule 'A' & 'B' properties. The defendant No.2 contended that the marginal land is situated on the eastern side of schedule 'B' property. The Sale Deed executed by defendant No.3 in respect of marginal land measuring East to West 0.91+0.46/2 feet and North to South 9.14 feet. The defendant No.3 being absolute owner of this property has executed through registered Sale Deed in favour of defendant No.2. The marginal land Sale Deed executed by defendant No.3 is separate and distinct. The marginal land is not situated adjacent to schedule 'A' property, as such, claim of plaintiff for cancellation and possession of it is false and baseless. The plaintiff is not the owner of marginal land, as such, he has no right to claim any right over the property or seek cancellation of Sale Deed. The defendant No.3 contended that after confirmation of report of Engineers of the BA about 20 OS.7218/2005 availability of marginal land to an extent of f6.26 sq. meters, it was allotted to defendant No.2 and after remittance of the value, separate Sale Deed has been executed in the name of defendant No.2.
.14. To substantiate the contention, plaintiff and GPA holder of defendant No.2 examined as PW.1 & DW.1, defendant No.3 examined its officials as DW.2 and DW.3. .15. On going through the oral and documentary evidence, the points that arisen for consideration are whether the marginal land as described by plaintiff in the plaint as schedule 'C' property is part and parcel of Sale Agreement and whether this marginal land i.e., schedule 'C' property is situated in between schedule 'A' & 'B' properties. The plaintiff to substantiate the fact that the schedule 'C' property is part and parcel of schedule 'A' property has produced certified copy of Sale Deed of schedule 'A' property, Possession Certificate, certified copy 21 OS.7218/2005 of Sale Deed of defendant No.2, certified copy of marginal land Sale Deed (Exs.P.1, 3, 19, 20), Rough Sketch (Ex.P.30). The defendant No.2 produced certified copy of Possession Certificate of schedule 'B' property (Ex.D.5), Marginal land Sale Deed (Ex.D.6), Possession Certificate (Ex.D.7), Dimension Certificate (Ex.D.18). .16. On perusal of the Sale Deed (Ex.P.1) of plaintiff, it reveals that the property of the plaintiff i.e., schedule 'A' is bounded on East by : House No.20A, West by : House No.19, North by : House No.7, South by : Road. The Possession Certificate (Ex.P.3) also speaks same description. The Sale Deed and the Possession Certificate discloses that on the eastern side of schedule 'A' property, the property belongs to defendant No.2 i.e., schedule 'B' property is situated. Further on perusal of the Sale Deed (Ex.P.19) pertains to defendant No.2 reveals that the property bearing No.20A bounded on East by : Property No.21, West by : Property No.20,. North by : Property 22 OS.7218/2005 No.6, South by : Road. On perusal of Ex.P.1 and Ex.P.19 Sale Deeds, it goes to show that towards eastern side of plaintiff's property i.e., schedule 'A' property, the property of defendant No.2 i.e., schedule 'B' property is situated. There is no property in between schedule 'A' & 'B' properties belongs to any person including defendant No.3 BDA.
.17. The defendant No.2 produced Sale Deed (Ex.D.5) in respect of schedule 'B' property belongs to her. On perusal of this document, it reveals that the property bearing No.20A bounded on East by : Property No.21, West by : Property No.20, North by : Property No.6, South by : Road. However, eastern side boundary i.e., site No.21 has been rounded off by showing marginal land as per amended Deed. The defendant No.2 also produced Marginal Sale Deed (Ex.D.6), which reveals that as per the request of defendant No.2 for allotment of additional land situated abutting to her property bearing 23 OS.7218/2005 No.20A, BDA executed the Sale Deed. The property allotted and sold by BDA in favour of defendant No.2 bounded on East by : House Property No.21, West by : House Property No.20, North by : House Property No.6, South by : Road. Further it reveals that the property sold measures East to West 0.91+0.46/2 meters and North to South 9.14 meters. The defendant also produced Possession Certificate (Ex.D.7). On perusal of this document, it reveals that in the front page description of property bearing No.20A has been given, which measures East to West 6.10+8.83/2, North to South 13.71 meters. On the overleaf, the description of both property No.20A and marginal land with measurement has been given. As per this, the property i.e., schedule 'B' and marginal land bounded on East by : Site No.21, West by : Site No.20, North by : Site No.6 and South by : Road. On considering Ex.P.1, Ex.P.19, Ex.D.5, Ex.D.6, this Court finds that the marginal land for which, BDA executed the Sale Deed in favour of defendant No.2 as per Ex.D.6 is situated on the 24 OS.7218/2005 eastern side of property No.20A i.e., schedule 'B'. The contention of the plaintiff as to the land covered in Marginal land Sale Deed (Ex.D.6) belongs to her and it is part and parcel of schedule 'A' property belongs to her, cannot be accepted.
.18. As earlier mentioned, the property purchased by plaintiff measures East to West 22+20/2 and North to South 45 feet. The plaintiff claimed that the Marginal land Sale Deed executed by BDA belongs to her. As per schedule 'C' property, it measures East to West 3+5/2 feet and North to South 36 feet, which bounded on East by : Property of defendant No.2, West by : Property No.20, North by : Property No.7, South by : Road. The measurement mentioned in schedule 'C' property and the Marginal land Sale Deed are entirely different. As earlier mentioned, Marginal land Sale Deed is in respect of the area measuring East to West 0.91+0.46/2 feet and North to South 9.14 meters. Further the description of schedule 25 OS.7218/2005 'B' property and Marginal land Sale Deed is one and the same. On the eastern side of these two properties, Property No.21 is situated, on the western side property No.20 i.e., schedule 'A' belongs to plaintiff is situated. Though the plaintiff produced Rough Sketch, but, has not got marked in the evidence. This document is marked at Ex.P.30 during course of cross-examination. The Rough Sketch will not depict the measurement of the property. This Sketch will not help the plaintiff to substantiate the claim.
.19. On perusal of oral evidence of PW.1, it reveals that PW.1 denied the suggestion that marginal land belongs to BDA and it is attached to the property of defendant No.2. PW.1 asserts that the marginal land belongs to her. However, PW.1 states that she has no document to show that marginal land belongs to her. PW.1 also denied the suggestion that marginal land is situated between property No.21 and property of defendant No.2. Further she states 26 OS.7218/2005 that she do not know the measurement. On the other hand, DW.2 in the chief-examination stated that the Engineer of BDA submitted report about availability of marginal land to the extent of 6.26 sq. meters and it is situated on the eastern side of the property belongs to defendant No.2. DW.2 further states that the marginal land was allotted to defendant No.2 after remittance of land value and separate Sale Deed has been executed. In the cross-examination he stated that the marginal land is on the eastern side of property bearing No.20A. DW.3 in the chief-examination has stated that the marginal land is situated on the eastern side of the property belongs to defendant No.2. DW.1 in the chief-examination stated that on the eastern side of schedule 'B' property there was marginal land measuring 6.26 sq. meters, which was allotted to defendant No.2 by BDA and Sale Deed has been executed.27 OS.7218/2005
.20. On considering oral evidence of PW.1, it goes to show that as per the plaintiff marginal land is situated in between schedule 'A' & 'B' properties and it belongs to her. Further defendant No.3 has no right to execute the Sale Deed in respect of this land. The contention of plaintiff is contrary to evidence of defendants. The plaintiff except contending that marginal land area belongs to her has not produced any documentary evidence in this regard. At the same time, the defendant No.2 placed document to show that there is a marginal land on the eastern side of schedule 'B' property to the extent of 6.26 sq. meters. The contention of defendant No.2 is corroborated by the evidence of DW.2 & 3. The Sale Deed (Ex.D.6), Possession Certificate (Ex.D.7) clearly goes to show that defendant No.2 has got schedule 'B' property and also marginal land on the eastern side of schedule 'B' property. On perusal of the description of these two properties, it reveals that since the extent of marginal land is meager one and it is situated in between schedule 'B' property and 28 OS.7218/2005 property No.21. The defendant No.2 applied for allotment of marginal land in her favour and BDA on considering the request and after remittance of the value, executed the Sale Deed. The description of schedule 'B' and marginal land has been shown commonly as on the East - Site No.21, on the West- Site No.20 (schedule 'A'), North - Site No.6, South - Road. The plaintiff fails to prove that marginal land is situated on the eastern side of schedule 'A' property and it belongs to her. The extent of schedule 'C' property and the marginal land allotted by BDA in favour of defendant No.2 are different.
.21. On going through oral and documentary evidence on record, this Court finds that plaintiff is owner of schedule 'A' property and defendant No.2 is owner of schedule 'B' property. Further the plaintiff has not placed any cogent and reliable evidence to show that marginal land is part and parcel of schedule 'A' property. At the same time, the Sale Deeds of schedule 'B' and marginal 29 OS.7218/2005 land, Correct Dimension Certificate produced by the defendant No.2, it goes to show that the marginal land is situated on the eastern side of schedule 'B' property and it is in between schedule 'B' and site No.21, not schedule 'A' property. The marginal land is no way concerned or connected to schedule 'A' property. The defendant No.3 being the owner of marginal land, at the request of defendant No.2 allotted and executed Sale Deed in favour of defendant No.2. The plaintiff cannot seek any relief in respect of this marginal land against defendant No.2 or defendant No.3.
.22. The plaintiff pleaded and contended that after purchase of schedule 'B' property, defendant No.2 started unauthorized construction during 3rd week of January, 2005 by lying pillars contrary to Building Byelaws without leaving setback and encroached schedule 'A' property. The defendant No.2 denied putting unauthorized construction and encroachment on schedule 'A' property. 30 OS.7218/2005 To substantiate the contention plaintiff and defendant No.2 produced oral evidence. The defendant No.1 BBMP in the pleadings contended that the jurisdictional Field Engineer conducted spot inspection of schedule 'A' & 'B' properties and measured both the properties and found that as per records, schedule 'A' property measures East to West 22+20/2 feet and North to South 45 feet. Schedule 'B' property measures 22+29.4/2 feet East to West, and 45 feet North to South. The actual extent of schedule 'A' is East to West 21+22/2 feet and North to South 45 feet, and extent of schedule 'B' is East to West 23+24.4/2 feet, North to South 45 feet. As defendant No.2 fails to produce Possession Certificate with respect to additional land, the jurisdictional Engineer found that defendant No.2 encroached 1 feet of land belongs to plaintiff and it has issued notice under KMC Act.
.23. The plaintiff to substantiate the contention has not placed any documentary evidence. In the oral evidence 31 OS.7218/2005 PW.1 stated that defendant No.2 has encroached to an extent of 2 feet width and 35 feet length on the southern side. The evidence of PW.1 regarding extent of alleged encroachment by defendant No.2 is without pleading. The plaintiff in the pleadings has alleged only encroachment, but, has not stated the extent of the encroachment. The defendant No.1 though in the written statement has stated about encroachment by defendant No.2 to the extent of 1 feet on the property belongs to plaintiff, but, has not placed any material to consider the contention. No evidence has been placed by defendant No.1 in this regard.
.24. In this case, a Court Commissioner is appointed, who visited the spot and made inspection of the properties belongs to plaintiff and defendant No.2 and submitted report along with sketch. The Commissioner has been examined as CW.1. In the evidence the Commissioner states that at the time of execution of the work, both 32 OS.7218/2005 parties and counsels were present. He further states that on the basis of actual site measurement on the spot, he prepared the sketch, not on the basis of Sale Deeds. The Commissioner in the report stated that during inspection and measuring the properties, he found that defendant No.2 encroached the property of plaintiff to an extent of 3.83 meters or 41.97 sq. feet. The Commissioner has shown the encroached area in the sketch. The counsel for defendants during course of arguments submitted that the Commissioner has not prepared rough sketch on the spot.
The sketch produced by the Commissioner is prepared in the office, therefore, the sketch cannot be accepted as correct and genuine. The Commissioner has produced rough and neat sketch, which are marked Ex.C.4 and Ex.C.6. On going through the rough sketch placed, this Court finds that it is not prepared on the spot. The Commissioner might have taken the measurement separately on the spot and has mentioned in the sketch 33 OS.7218/2005 subsequently. The Commissioner has not placed the measurement taken on the spot.
.25. The plaintiff has specifically alleged that defendant No.2 while putting construction made encroachment over her property i.e., schedule 'A'. The plaintiff has not given particulars of encroachment in the pleadings. It is only in the evidence PW.1 stated that defendant No.2 encroached schedule 'A' property to an extent of 2 feet width and 35 feet length towards southern side. The defendant No.1 though pleaded in the written statement about extension of construction to the extent of 1 feet, but has not placed any evidence. The written statement further discloses that as defendant No.2 fails to produce Possession Certificate and other documents in respect of additional land allotted by defendant No.3 BDA in her favour, the Jurisdictional Engineer comes to conclusion that defendant No.2 encroached 1 feet area in schedule 'A' property. The pleadings of defendant No.1 is vague in nature. In the 34 OS.7218/2005 absence of proof, this Court finds that the contention of defendant No.1 cannot be accepted.
.26. DW.1 in the evidence stated that defendant No.2 obtained plan in the year 2004 and started construction in the same year and completed during 2006. DW.1 further stated that plan for construction of ground, first and second floor is obtained. DW.1 further states that while putting construction 3 feet towards North, 2 feet towards South has been left. DW.1 denied the suggestion that no space has been left as setback on western side of the property. DW.1 also denied that encroachment on the plaintiff's property to an extent of 2 feet, which was left as setback. The defendant No.2 produced three Photographs at Exs.D.1 to 3. On perusal of these Photographs, which are not in dispute as far as situation of the properties of plaintiff and defendant No.2 is concerned, reveals that there is no space in between the properties of plaintiff and defendant No.2.
35 OS.7218/2005.27. The plaintiff though alleged of encroachment on her property by defendant No.2 has not placed any document, such as Sanctioned plan to show that she has constructed building as per the plan. Further while putting construction has left any setback area on the eastern side. The plaintiff has produced sanctioned plan (Ex.P.23) obtained by defendant No.2. On perusal of the approved plan, the defendant No.2 has to leave setback area towards western side. The Photographs produced by plaintiff and defendant No.2 goes to show that no setback area is seen in between the buildings of plaintiff and defendant No.2. Unless, plaintiff establishes that she has put up construction on schedule 'A' property as per approved plan by leaving setback area, it is very difficult to say that defendant No.2 has encroached upon the schedule 'A' property belongs to plaintiff. In the absence of production of approved plan by plaintiff, it can be inferred that defendant No.2 has put up construction without leaving any setback area. At the same time, it is 36 OS.7218/2005 very difficult to say that defendant No.2 has encroached on schedule 'A' property to the extent as alleged by plaintiff. Therefore, for these reasons, this Court answered Issue No.1, 4 and 5 in the negative.
.28. ISSUES NO.2 & 3:- On appreciation of the materials on record, this Court comes to conclusion that plaintiff is owner of schedule 'A' property and defendant No.2 is owner of schedule 'B' property. The plaintiff has failed to prove that the marginal land mentioned in the Sale Deed (Ex.D.6) is situated on the eastern side of her property and it is part and parcel of schedule 'A' property. Further the available material establishes the fact that marginal land measuring 0.91 + 0.46/2 East to West and 9.14 meters North to South is situated on the eastern side of schedule 'B' property. The plaintiff though alleged that defendant No.2 put up construction on schedule 'B' property unauthorisedly against Building Byelaws, Sanctioned plan and encroached on schedule 'A' property, 37 OS.7218/2005 but, has not placed any reliable and acceptable documentary evidence to show the exact extent of encroachment on schedule 'A' property by the defendant No.2. The defendant No.1, who is competent authority to take action against illegal and unauthorized construction made by the land holders. On considering the existence of the constructed structure of plaintiff and defendant No.2, this Court finds that there is a violation of Building Byelaws. In the absence of documentary evidence, it is very difficult to come to the conclusion as to who has violated Building Byelaws. Therefore, the defendant No.1 being a competent authority has to initiate necessary action against the person, who put up construction by violating approved Sanctioned plan. The plaintiff fails to prove that defendant No.2 has encroached on schedule 'A' property. Further plaintiff has no right, title and interest in respect of marginal land situated on the eastern side of schedule 'B' property and she cannot seek any relief in 38 OS.7218/2005 respect of this property. Therefore, for these reasons, this Court answered Issues No.2 & 3 in the negative, .29. ISSUE NO.6: In the result, this Court proceeds to pass the following:
ORDER Suit is dismissed. No costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 25th day of September 2018).
(RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFF:
PW.1 -Gayathri W/o. Late Gajapathi Rao.
DOCUMENTS PRODUCED ON BEHALF OF PLAINTIFF: Ex.P.1 Registered sale deed dated 25.08.2003. Ex.P.2 Re-allotment Letter dated 05.04.2003 issued by the BDA.
Ex.P.3 Possession Certificate dated 09.01.2004 39 OS.7218/2005 issued by BDA.
Ex.P.4 Khata Certificate dated 30.03.2004 issued by BMP.
Ex.P.5 Demand Register Extract. Ex.P.6 Tax Paid Receipt. Ex.P.7 to Encumbrance Certificates. Ex.P.16 Ex.P.17 Office copy of Letter dated 28.03.2005
addressed to Assistant Executive Engineer, BMP.
Ex.P.18 Copy of Letter dated 18.07.2005.
Ex.P.19 Certified copy of Sale Deed dated 27.06.2002.
Ex.P.20 Certified copy of Sale Deed dated 27.06.2005 Ex.P.21 Copy of Legal Notice dated 05.09.2007.
Ex.P.22 Postal Acknowledgment. Ex.P.23 Certified copy of Approved plan. Ex.P.24 to Photographs. Ex.P.28 Ex.P.29 CD. Ex.P.30 Rough Sketch.
WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 -K.Linge Gowda S/o. Late Kallappa. DW.2 -N.Sanjeeva Murthy.
DW.3- S.Thangaraj.
DOCUMENTS PRODUCED ON BEHALF OF DEFENDANTS:
Ex.D.1 to Photographs. Ex.D.3 Ex.D.4 GPA. Ex.D.5 Certified copy of Possession Certificate. Ex.D.6 Registered Sale Deed dated 27.06.2005
executed by BDA in favour of Padmavathi in respect of marginal land.40 OS.7218/2005
Ex.D.7 Certified copy of Possession Certificate.
Ex.D.8 to Tax paid receipts for 'B' schedule property
Ex.D.16 including marginal land.
Ex.D.17 Covering Letter.
Ex.D.18 Copy of Sketch.
Ex.D.19 Register Extract of BDA sites allotted to the
plaintiff and others.
Ex.D.19(a) Relevant portion in Ex.D.19.
Ex.D.20 Copy of Representation.
Ex.D.21 Copy of Application.
Ex.D.22 Copy of office note of defendant No.3.
Ex.D.23 Copy of Possession Certificate.
Ex.D.24 Copy of Correct Dimension Report.
Ex.D.25 Copy of Sale Deed in respect of marginal
land.
Ex.D.26 Authorization Letter.
Ex.D.27 Dimension Report of site No.20/A.
Ex.D.28 Extract of West of Chord Road 1st Stage Plan.
COURT COMMISSIONER EXAMINED AS:
CW.1 -Siddaraju Punneshetty S/o. Nagashetty.
DOCUMENTS PRODUCED ON BEHALF OF COURT
COMMISSIONER:
Ex.C.1 Report.
Ex.C.2 & Memo of Instructions.
Ex.C.3
Ex.C.4 Sketch.
Ex.C.5 Letter dated 18.11.2014.
Ex.C.6 Sketch.
(RAVINDRA. M. JOSHI)
XL Addl.City Civil & Sessions judge,
Bengaluru.
41 OS.7218/2005
25.09.2018
P - BPP,
D1-SNP, (Judgment pronounced in the open
D2-TJP, Court vide separate order.)
D3-ASH,
42 OS.7218/2005
For Judgment. ORDER
Suit is dismissed. No costs.
Draw decree accordingly.
XL.ACC & SJ
Bengaluru.