Bangalore District Court
Smt.S.Rajini vs Athmiya Geleyarabalaga Gruha on 13 September, 2022
KABC010128972009
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 13th day of September, 2022
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
O.S.N o.2980/2009
Plaintiff : Smt.S.Rajini
D/o B.Shankarananad,
Aged about 49 years,
R/at No.33, Sampoorna Apartment,
Flat No.8, 3rd Floor, Palace Cross
Road, Bengaluru - 560020.
(By Sri.Ujwala A. Mandgi, Advocate)
-V/S-
Defendants: 1. Athmiya Geleyarabalaga Gruha
Nirmana Sahakara Sangha,
No.13, 1st Floor, 3rd Cross, 8th Main
Road, Ganesha Block,
Mahalakshmipuram,
Bengaluru - 560086.
Represented by its Secretaries
R.Ravindra and Raghu.
2. The Commissioner
The Bruhut Bengaluru Mahanagara
2 O.S.No.2980/2009
Palike, Horticulture Department,
N.R.Square, Bengaluru.
3. Athmiya Geleyara Balaga
(Mahalakshmi Layout Residents
Welfare Association),
No.99, II Stage, Mahalakshmi
Layout, Bengaluru - 560086.
Represented by its President.
(D.1 by Sri.H.S.R., Advocate
D.2 by Sri.S.N.P., Advocate
D.3 by Sri.J.S.R., Advocate)
Date of institution of the suit: 30.04.2009
Nature of the suit: Injunction
Date of commencement of 02.09.2015
recording of evidence:
Date on which Judgment was 13.09.2022
pronounced:
Duration: Yea Years Months Day
13 04 13
JUDGMENT
The plaintiff has filed the present suit under Sec.26 read with Order VII Rule 1 of CPC, praying for the relief of declaration of her ownership right over the suit schedule property and for possession and permanent injunction.
2. The brief facts of the case of the plaintiff as averred in the suit plaint are as follows:-
3 O.S.No.2980/2009The suit schedule property measuring 35 guntas of land of Jarakabandekaval village, Yelahanka Hobli, Bengaluru North Taluk, situated in Sy.No.167 is granted to the plaintiff by Government of Karnataka under Rule 27 of Karnataka Land Grant Rules 1969 vide order bearing No.RD.86 LGB 92 Bengaluru dated 21.05.1992 for construction of LPG godown for storage purpose. The plaintiff has paid the price of the suit schedule property and Tahasildar, Bengaluru North Taluk has handed over physical possession of the suit schedule property in favour of the plaintiff vide letter dated 01.06.1992. The revenue records of the suit schedule property stands in the name of plaintiff. The plaintiff has built up godown for storage of gas cylinder and constructed a shed for the security guard to look after the godown. The plaintiff has put up a fence at a distance of 9 meters around the godown within the suit schedule property. The plaintiff is in lawful possession and enjoyment of suit schedule property. The defendant No.1 being an utter stranger and having no manner of rights over the suit schedule property has started to interfere with the peaceful possession and enjoy of the suit property at the instance of the defendant No.2. On 16.04.2009, the defendant No.2 had attempted to barge in to the suit schedule property. The defendants with the help of workmen are trying to put up a construction by trespassing 4 O.S.No.2980/2009 over the suit schedule property. The plaintiff has also informed about the illegal and highhanded acts of the defendant to the jurisdictional police by filing complaint dated 17.04.2009. One Venkatesh had tried to interfere with the plaintiff possession over the suit property and he had challenged the Government order dated 21.05.1992 by filing Writ Petition in W.P.No.24200/98 against the Government as well as the plaintiff. The said writ petition came to be dismissed vide order dated 23.02.1999 by Hon'ble High Court of Karnataka. Further one Ramakrishna Murthy illegally tried to interfere with the possession of the plaintiff over the suit property. The plaintiff has filed O.S.No.4923/2005 against the Ramakrishna Murthy and it is pending in City Civil Court Hall No.10. After filing of the suit, the defendants No.1 and 2 have filed written statement. Both the defendants are now contending that except the godown building enclosed by compound wall, the remaining property is not in the physical possession of the plaintiff. The defendant No.2 is in possession of the said property. In view of wrongful claim and assertion of the defendants that the defendant No.2 is in physical possession of the portion of the schedule property other than the gas cylinder godown surrounded by a compound, the plaintiff by way of abundant caution and to avoid future complications that 5 O.S.No.2980/2009 may arise after the decree that may be passed and to put an end to the unnecessary controversy has sought for relief of possession of the suit property which is allegedly in possession of defendant No.2. Hence, the plaintiff has stated that cause of action has arose for her to file the suit.
Hence, the plaintiff has prayed to decree the suit.
3. After service of the suit summons, the defendants No.1 to 3 have appeared through their counsels. The defendants No.1 to 3 have filed their written statement. The defendant No.3 in the written statement has contended that Sy.No.167 was a part of Housing Layout formed by the defendant No.1 earlier to 1992. The Bengaluru Development Authority had sanctioned the layout plan of the defendant No.1 society on 26.11.1988. An extent measuring 11.62 guntas in Sy.No.167 of J.B.Kaval was involved in the layout formed by the defendant No.1 society. On the basis of the layout plan sanctioned by the BDA, the defendant No.1 has formed a housing layout and distributed the sites so formed therein. As on the date of granting 35 guntas of land in Sy.No.167 to the plaintiff, the Government was not in possession of portion of Sy.No.167. As such, the Government putting the plaintiff in possession of the suit property, under the Government order dated 21.05.1992 does never arise for 6 O.S.No.2980/2009 consideration. The defendant No.3 has further contended in the written statement that there is no material on record to establish the ownership of the plaintiff in respect of the suit property. The plaintiff without taking possession of the property from the Government has approached the court by stating that she is the owner of the property and she has been in possession of the property. The plaintiff in the suit plaint has not disclosed in which portion of property she is in possession and in which portion, the defendants are in possession of land in Sy.No.167. The Government is a proper and necessary party for adjudication of the suit. The suit is bad for non-joinder of proper and necessary parties. The plaintiff by virtue of filing the suit intends to claim a portion of park formed in Sy.No.131, 131, 132, 135 and 136 under the guise that she is the grantee of a portion of land in Sy.No.167. The BDA after acquiring Sy.Nos.115, 119, 122, 129, 130, 131, 132, 135 and 136, handed over the same to the defendant No.1 socitety for formation of a housing layout called 'Athmiya Geleyara Balaga Housing Layout'. The defendants after taking possession of their property prepared layout sketch with intention to form housing layout and presented the same for approval by BDA. The BDA by its proceedings dated 26.11.1988 has approved the layout plan. The defendant No.3 has further contended in the written statement that all 7 O.S.No.2980/2009 the open space, streets, playground, park, etc., were re- vested with the BDA in view of Sec.30 pf BDA Act. The defendant No.1 in the process of forming housing layout, developed park in a portion of Sy.No.130, 131, 132, 135 and 136. The said park is enclosed with chain link fencing and it is the property of the BDA and it was handed over to the BBMP for the purpose of maintenance and the BBMP is maintaining the said property. The BBMP is not the owner of the property. The BDA is also proper and necessary party for adjudication of the suit. The defendant No.3 has specifically denied all other averments and allegations made in the suit plaint. The defendant No.3 has specifically denied the ownership and possession over the suit schedule property and also specifically denied the cause of action shown in the suit plaint for filing the suit. On these among other grounds, the defendant No.3 has prayed to dismiss the suit filed by the plaintiff.
4. The defendant No.1 in the written statement has contended that there is big channal/ drainage which is very old and which cannot developed and it is situated in Sy.No.167 Jarakabandekaval, Yelahanka Hobli, Bengaluru North Taluk and which is got depth of around 35 ft. to 50 ft. As such, question of Tahasildar, Bengaluru North Taluk, delivering the possession of the suit property to plaintiff does not arise for consideration. There is no demarcation 8 O.S.No.2980/2009 of the property of the plaintiff which is alleged to be in existence to the extent of 35 gutnas. The plaintiff has not at all taken possession of the suit schedule property. The defendant No.1 has further contended in the written statement that apart from using the godown for placing of gas cylinder there is no other property belonging to the plaintiff. The plaintiff has constructed gas godown illegally. The rest of the property belonging to the defendant No.1 and also to the defendant No.2. The defendant No.1 has further contended in the written statement that the fencing is made only to the extent of the property available which is around the godown which is in existence and nothing more than that. The property situated around the godown is the property being developed by the defendant No.1 which is residential area and the basic civic amenities property maintained by the defendant No.1 and the same is being delivered to the defendant No.2. Accordingly, the defendant No.2 has been in possession of the same. The defendant No.1 has further contended in the written statement that on the western side of the suit property there is property belonging to the defendant No.2 which is the park being handed over by the defendant No.1 to the defendant No.2. The defendant No.1 has further contended in the written statement that when the plaintiff is not in possession of suit property, the question of interference of the defendant No.1 9 O.S.No.2980/2009 with the alleged possession of the plaintiff does not arises for consideration. The defendant No.1 in his written statement has taken all the contentions which are similar to that of defendant No.3 and as such, those contentions are not reproduced herein to avoid repetition of facts. The defendant No.1 has further contended in the written statement that the plaintiff has obtained three sites formed by the defendant No.1 and in the said sites, the plaintiff has constructed godown and there is no other property remaining with the plaintiff. The defendant No.1 has specifically denied all other averments made in the suit plaint. The defendant No.1 in the additional written statement has contended that the plaintiff is now claiming the relief of recovery of possession of suit property after the lapse of statutory period of limitation. Since the plaintiff has never been owner of the suit schedule property, the plaintiff is not entitled to claim the property which is belonging to the defendant No.2. On these among other grounds, the defendant No.1 has prayed to dismiss the suit filed by the plaintiff.
5. The defendant No.2 in the written statement has contended that the defendant No.1 society was accorded permission to form a residential layout in Jarakabandekaval, measuring 17 acres, 9 guntas of BDA. The defendant No.1 formed residential layout therein.
10 O.S.No.2980/2009Towards southern portion which is just abutting a storm water drain. The area has come within the jurisdiction of BBMP from BDA about ten years back. The BBMP has developed a park in the said civic amenity site and fencing has been done all round the said civic amenity site. The defendant No.2 has further contended in the written statement that the plaintiff is trying to make out a case that a portion of the property namely the civic amenity site for park in its south east corner is the property belonging to the plaintiff. The said park has been developed long back and is in possession of the BBMP since more than 13 years. The defendant No.2 has further contended in the written statement that the BBMP and its predecessors are in possession of the suit property from the time immemorial. The plaintiff is not in possession or peaceful enjoyment of suit schedule property. The measurement and description of the suit schedule property as referred to in the schedule to the plaint is vague and does not tally with the existing situation. The identity of the schedule property is in dispute. There is no cause of action to the suit. The relief of recovery of possession is not maintainable in law and on the facts of the case. The prayer for possession of the suit property by the plaintiff is barred by law of limitation. The plaintiff has not clearly pleaded regarding how she is entitled to get possession 11 O.S.No.2980/2009 only 26,115 sq.ft. and the plaintiff has not specifically pleaded where the said portion is situated in the said property. The defendant No.2 has further contended in the written statement that the suit is liable to be rejected for non-compliance of provision under Sec.482 of KMC Act. The defendant No.2 has specifically denied all other allegations and averments made in the suit plaint. On these among other ground, the defendant No.2 has prayed to dismiss the suit filed by the plaintiff.
6. Based upon the pleading of both the parties, following 6 issues and 2 additional issued came to be framed by learned predecessors and the same was posted the matter for evidence.
ISSUES
1. Whether the plaintiff proves her title to the schedule property?
2. Does she proves her lawful constructive possession over the schedule property?
3. Does she prove the alleged obstruction of the defendants?
4. Does she entitle for recovery of possession of the schedule property as prayed?
5. Does she entitle for the relief of declaration and injunction as prayed?
12 O.S.No.2980/20096. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff proves defendants are in illegal possession of suit schedule property to the extent of an area measuring 26115 sq.ft.?
2. Whether the plaintiff is entitled for relief, as claimed for against defendants?
7. The plaintiff in order to prove her case has adduced her oral evidence as P.W.1. The plaintiff has produced 74 documents on her behalf and got them marked as Ex.P.1 to P.74. Further the plaintiff has examined one witness on her behalf as P.W.2 and closed her side. Then the matter was posted for evidence of the defendants. The Secretary of defendant No.1 has adduced his oral evidence as D.W.1. He has produced 9 documents and got them marked as Ex.D.1 to D.11. The Executive Member of defendant No.3 has adduced his oral evidence as D.W.2. He has produced one document and got it marked as Ex.D.12. The Senior Assistance Director, Horticulture, West Zone of BBMP has adduced his oral evicting as D.W.3 and he has produced one document and got it marked as Ex.D.13. It is to be noted here that during the course of trial o the case the Court Commissioner was appointed for local inspection of the suit schedule property.
13 O.S.No.2980/2009The Court Commissioner was examined as C.W.1 and his report was marked as Ex.C.1. Then the matter was posted for arguments
8. Heard the arguments of Learned counsel for the plaintiff and Learned counsel for the defendants. The Learned counsel for the plaintiff has filed his written arguments. Perused the pleadings, oral and documentary evidence adduced on behalf of both the parties, written arguments and other materials on record.
9. Having done so, my answer to the aforesaid 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
Additional In the Negative
Issue No.1 :
Additional In the Negative
Issue No.2 :
Issue No.6 : As per final order,
for the following :
14 O.S.No.2980/2009
REASONS
10. ISSUES NO.1 to 3 and 4: These four issues are interrelated to each other and as such, they are taken together for discussion to avoid repetition of facts.
The plaintiff has filed the present suit for the relief of declaration of her ownership right over the suit schedule property bearing Sy.No.167, situated at Jarakabandekaval Village, Yelahanka Hobli, Bengaluru North Taluk, measuring 35 guntas of land. The plaintiff has also sought for the relief of recovery of possession of 26,115 sq.ft. area of land in the suit schedule property from the defendants. The plaintiff has also sought for the relief of permanent injunction against the defendants restraining from interfering them with her peaceful possession and enjoyment over the suit schedule property. Since the plaintiff has sought for the relief of declaration, injunction and possession, the burden is upon the plaintiff to prove her valid title over the suit schedule property and her lawful possession over the suit schedule property and the interference of the defendants with her peaceful possession and enjoyment over the suit schedule property.
11. The plaintiff in order to prove burden of proving Issue No.1 to 3 and 4 has adduced her oral evicting as P.W.1. P.W.1 in her examination-in-chief filed by way of 15 O.S.No.2980/2009 affidavit has deposed that the suit schedule property was granted to her by the Government as per order No.RD.86 LGB 92 dated 21.05.1992 for construction of LPG godown for storage purpose. P.W.1 has further deposed in her examination-in-chief that as per the notice dated 01.06.1992, she has paid Rs.20,000/- being the price of the suit schedule property and Tahsildar, Bengaluru North Taluk has handed over the physical possession of the suit schedule property to her as per the letter dated 01.06.1992. P.W.1 has further deposed in her examination-in-chief that mutation of the suit schedule property was effected in her name. Her name is also entered in the RTC of the suit schedule property. Khatha certificate of the suit schedule property was also in her name. P.W.1 has further deposed in her examination-in-chief that she has built gas godown in the suit schedule property for storage purpose and she has also constructed a shed for security guard to look after the godown. P.W.1 has further deposed in her examination-in- chief that she had put up a fence at the distance of 9 meters around the godown within the suit schedule property. P.W.1 has further deposed in her examination-in- chief that she had put up one more fence around the suit schedule property encompassing the fence surrounding the godown. P.W.1 has further deposed in her examination-in- chief that she has been in peaceful possession and 16 O.S.No.2980/2009 enjoyment of suit schedule property as absolute owner. P.W.1 has further deposed in her examination-in-chief that the defendants without having any right, title or interest over the suit property have attempted to interfere with her peaceful possession and enjoyment over the suit schedule property on 16.04.2009. She had also given complaint to the jurisdiction police on 17.04.2009 about the illegal interference of the defendants with her peaceful possession and enjoyment over the suit schedule property. P.W.1 has further deposed in her examination-in-chief that one Venkatesh had challenged the Government order dated 21.05.1992 granting the suit schedule property to her before the Hon'ble High Court of Karnataka in W.P.No.24200/98. The Hon'ble High Court of Karnataka dismissed the said writ petition vide order dated 23.02.1999 and held that granting of suit property in her favour is valid and it is in pursuance of Rule 27 of the Land Grant Rules. P.W.1 has further deposed in her examination-in-chief that one Ramakrishna Murthy has illegally tried to interfere with her peaceful possession of the suit schedule property and she had filed injunction suit bearing O.S.No.4923/2005 against Ramakrishna Murthy and the said suit came to be decreed on 01.04.2011 in her favour. P.W.1 has further deposed in her examination-in-chief that the defendants No.1 and 2, after their appearance before the court have 17 O.S.No.2980/2009 filed written statement by contending that except godown building enclosed by a compound wall, the remaining property is not in her physical possession and defendant No.2 is in peaceful possession of the remaining portion. P.W.1 has further deposed in her examination-in-chief that she is entitled for the possession of the suit schedule property which is in possession of defendant No.2. Hence, P.W.1 in her examination-in-chief has stated that she is entitled for the relief as prayed for in the suit plaint.
12. P.W.1 apart from adducing her oral evicting has produced certain documents. Ex.P.1 to P.21 are the photographs of the suit schedule property showing the existence of godown and the compound wall surrounding to said gas godown. Ex.P.22 is the negatives of Ex.P.1 to P.21 photographs. Ex.P.23 is the certified copy of the order passed by Under Secretary of Government of Karnataka bearing No.RD.86 LGB 92, dated 21.05.1992, intimating about the grant of suit schedule property to the plaintiff under Rule 27 of Karnataka Land Grant Rules 1969 at the price of Rs.20,000/- plus conversion charges. Ex.P.24 is the endorsement letter issued by Spl.D.C., Bengaluru, dated 01.06.1992 to the plaintiff directing her to pay price of suit schedule property, conversion charge and podi fee. The plaintiff was directed to pay in all Rs.1,07,699.50/-.
18 O.S.No.2980/2009Ex.P.25 is the remittance challan issued by BDA for having paid Rs.6,500/- by the plaintiff.
13. Ex.P.26 is the certified copy of mutation bearing No.1/92-93, effected in the name of plaintiff on the basis of the Government grant order. It is stated in the said mutation that the suit schedule property was granted to the plaintiff with certain conditions regarding non-alienation and using of suit schedule property for construction for gas godown as mentioned in the grant order. Ex.P.27 and P.28 are the RTC of the suit schedule property for the year 1991- 92 and 1999-2000 in the name of the plaintiff. Ex.P.29 is the demand extract of the suit property for the year 1992-
93. Ex.P.30 is the certified copy of tippani of Sy.No.167. Ex.P.31 certified copy of revision settlement extract of suit schedule property. Ex.P.32 is the certified copy of village map showing the situation of suit survey number and Ex.P.33 is the Khatha registration certificate dated 05.03.2005. Ex.P.34 and 35 are the Holder Khatha certificate and extract of site No.90 in the name of plaintiff. Ex.P.36 to 38 are the tax paid receipts. Ex.P.39 is the RTC of Sy.No.167, measuring 35 guntas of land for the year 2007-08 standing in the name of plaintiff. Ex.P.40 and 71 are the similar letters dated 22.07.1992 issued by BDA to the plaintiff stating that 11.65 guntas in Sy.No.167 is overlapping in the layout formed by the Athmiya Geleyara 19 O.S.No.2980/2009 Balaga Society and the same will be handed over to her after the action being taken to get back the said 11.65 guntas of land.
14. Ex.P.41 is the certified copy of order of Hon'ble High Court of Karnataka in W.P.No.24200/98. The said writ petition was filed by one Venkatesh against State of Karnataka and the plaintiff challenging the validity of grant order of suit property made in favour of the plaintiff. The Hon'ble High Court of Karnataka has dismissed the said writ petition by holding that the Government is right in granting the suit land to the plaintiff u/Sec.27 of Land Grant Rules on price fixed with certain conditions. Ex.P.42 to P.45 and 46 are the letters dated 28/30-4.-009 written by the plaintiff to Commissioner of BBMP, Director of Horticulture by the director of horticulture stating that the horticulture department from BBMP named her land as "Shivakumara Swamy Park" and interfering with her land with instigation of defendant No.1 and not permitting her to construct in her land. It is also informed that if the BBMP has interfered with her activities in the suit land she will initiate legal action against them. Ex.P.47 to 48 and P.53 to 58 are the Holder Khatha certificate of site No.90 in the name of plaintiff. Ex.P.59 to 66 and P.70 are the RTC of suit schedule property from the year 2008-09 to 2016-17. Ex.P.72 is the drone survey Image of suit property. Ex.P.73 is the sketch 20 O.S.No.2980/2009 obtained by the plaintiff under RTI Act. Ex.P.74 is the CD and certificate u/Sec.65(B) of Indian Evidence Act.
15. The defendants No.1 to 3 have not disputed the fact of grant of the suit schedule property to the plaintiff. Further the Hon'ble High Court of Karnataka in W.P.No.24200/98 has also upheld the grant order of the suit schedule property by the government in favour of the plaintiff. In view of the order of Hon'ble High Court of Karnataka in the said writ petition which is produced at Ex.P.41, the plaintiff is claiming that her ownership right over the suit schedule property is confirmed by the Hon'ble High Court of Karnataka and as such, she is entitled for the relief of declaration of her ownership right over the suit schedule property. The Hon'ble High Court of Karnataka has only upheld the grant order in favour of the plaintiff and has not given any specific finding about the possession of the plaintiff over suit property and not declared the ownership right of the plaintiff over suit property within the boundaries and measurement shown in the suit property. Even though the government has granted the suit schedule property in the name of the plaintiff, the said fact itself is not sufficient to come to the conclusion that the plaintiff is in possession of the suit schedule property and the plaintiff has constructed godown in the suit schedule property and the plaintiff has acquired title over the suit schedule 21 O.S.No.2980/2009 property within the boundaries and measurements shown in the suit plaint. All the defendants have specifically contended that the suit schedule property is not in existence and the plaintiff has not constructed the godown in the suit schedule property and the plaintiff is claiming her ownership right over the park developed by defendant No.1 and maintained by defendant No.2 which is not existence in Sy.No.167 of Jarakabandekaval village.
16. From the contentions of the defendants in the written statement as well as from the admission of D.W.1 to 3 in their evidence, it is not in dispute that the plaintiff has constructed godown for storage of gas cylinder and she has put up compound wall surrounding the said godown. But it is the contention of the defendants No.1 to 3 that the plaintiff has constructed the godown in the 3 sites given by defendant No.1 which was part and parcel of layout formed by defendant No.1 and the area surrounding the godown is in possession of defendant No.2 and the plaintiff is not in possession of the area surrounding the godown. It is also the contention of the defendants that Sy.No.167 is a Rajakaluve and the Government without holding proceedings as contemplated under Sec.68 KMC Act granted it to the same to the plaintiff and even if it is granted status of its will not changed. Whether the government is wrong in granting the suit property to the plaintiff is not the 22 O.S.No.2980/2009 question to be decided in the suit. The Hon'ble High Court of Karnataka has already held that the grant order made by the government is in accordance with law and as such, the said question cannot be adjudicated again in this suit.
17. The defendants are disputing the very identity and measurement of the suit schedule property as shown in the schedule of the suit plaint. In Ex.P.23 alleged grant order of the government, the boundaries of the 35 guntas of land in Sy.No.167 is not mentioned. P.W.1 in her cross- examination has stated that she do not know whether sketch is attached to the grant order or not. P.W.1 has further stated in her cross-examination that Tahasildar has handed over the physical possession of the suit schedule property stating that it is Karab land. The defendants are also contending that the suit schedule property is Karab land. P.W.1 in her cross-examination official has stated that the official possession certificate was given to her and the possession of land situated adjacent to Halla was given to her. But the plaintiff has not produced any official possession certificate issued by the Tahasildar order or issue any other competent authorities. Initially production of possession certificate is very much necessary to know whether the possession of suit property within the boundaries an measurement as shown in the schedule of the plaint was handed over to the plaintiff or not.
23 O.S.No.2980/200918. The plaintiff has filed the suit only for the relief of declaration and permanent injunction. But during the course of proceedings of the case, the plaintiff has got amended the suit plaint and she has sought for recovery of possession of 26115 sq.ft. area from the defendants by claiming the relief of possession from the defendants. The plaintiff has thus admitted the fact that she is not in possession and enjoyment of the suit schedule property to the extent of 26115 sq.ft. area. The plaintiff has not specifically pleaded in the suit plaint that when the defendants have came in possession of the said extent of land. Further the plaintiff has not specifically shown the alleged encroached portion as schedule in the suit plaint by mentioning the boundaries of the said encroached portion. When the defendants have taken over the possession of said alleged portion of suit property is also not specifically pleaded. No sketch show the details of encroachment is attached to the suit plaint.
19. P.W.1 in her cross-examination has stated that she has no impediment to get survey 35 guntas of land alleged to have been given to her in Sy.No.167 and to fix the boundaries of the same. P.W.1 in her cross- examination has stated that she cannot say when she will do so. From the said contention of the plaintiff in the cross- examination, it is clear that she has not got surveyed 24 O.S.No.2980/2009 Sy.No.167 and she has not got fixed the boundaries of 35 guntas of land in Sy.No.167 granted to her by the government. Further the plaintiff has also not got surveyed the suit schedule property in order to know where exactly she has constructed the godown and where the defendants have encroached the suit schedule property to the extent of 26,115 sq.ft. P.W.1 in the cross-examination has stated that Ex.P.30 is the sketch given to her at the time of grant. But Ex.P.30 is not survey sketch. It is only a tippani of Sy.No.167. In Ex.P.30, the boundaries of suit schedule property is not shown. The said sketch was prepared on 03.10.1992. Whereas grant order was made on 18.05.1992. The plaintiff has also much relied upon Ex.P.32 in order to show the existence of the suit schedule property and its boundaries. Ex.P.32 is not survey sketch prepared by competent surveyor. It is only village map. In Ex.P.32, the area of Sy.No.167 granted to the plaintiff is highlighted. The boundaries of Sy.No.167 is mentioned in the said Ex.P.32 by the Taluk Surveyor. The said boundaries are not mentioned in the grant order. No separate survey is also made with respect to the suit schedule property by the competent authority. Ex.P.32 cannot be considered as the authenticated document of survey with respect to the suit schedule property and it cannot be considered as substantive documentary 25 O.S.No.2980/2009 evidence to prove the identity of the suit schedule property and to prove the possession of the plaintiff with respect to suit property.
20. During the course of cross-examination P.W.1, it was suggested stating that whether she had filed the suit stating that defendants have encroached 2000 sq.ft. in Sy.No.167, P.W.1 has replied that she has filed the suit stating that the defendants have encroached 35 guntas of land and further stated at page No.16 that in 35 guntas of land except 12,000 sq.ft., the defendants have encroached remaining portion. She has further stated in her cross- examination that she has not got surveyed the suit schedule property and she has not produced any survey sketch. She has further stated in her cross-examination that she has got no impediment to got survey the suit schedule property about the encroachment. P.W.1 in her cross-examination at page No.29 has clearly admitted that in 35 guntas of land granted to her park is formed and the public have been using the said park. When it is suggested to her that the said park was developed by the corporation, she has replied that she do not know who has developed the park and who are looking after the maintenance of the said park. When the said suggestions are put to P.W.1, the Learned counsel for the plaintiff has interfered and submitted that the plaintiff has not properly understood the 26 O.S.No.2980/2009 question. But again P.W.1 has given answer stating that in 35 guntas of land park was formed. P.W.1 is M.A. graduate and daughter of Ex Minister and she has properly understood the question and answered it voluntarily. P.W.1 has further stated in her cross-examination that in 35 guntas of land the alleged park is formed. Thus from the admission of P.W.1 in the cross-examination, it is clear that the plaintiff is claiming the possession of park area by contending that the defendants have formed park in 35 guntas of land granted to her.
21. Nowhere in the suit plaint, the plaintiff has alleged that defendants have formed park in 35 guntas i.e. in suit schedule property as stated by her in the cross- examination. In the suit plaint, the plaintiff has not specifically mentioned the nature of possession of defendant No.2 over the suit schedule property. When the defendant No.2 came in possession of suit schedule property is also not specifically stated. Ex.P.1 to P.20, photographs produced by the plaintiff does not shows the existence of park in the property belonging to the plaintiff. The plaintiff has not produced the photographs of the property situated surrounding her godown as it is exists as on the date of her evidence. The plaintiff has not produced any photographs showing that there is a park in 35 guntas of land allotted to her. Further in Ex.P.72 drone survey 27 O.S.No.2980/2009 image, the park is not visible in the property granted to the plaintiff. P.W.2 is the person who issued Ex.P.72. P.W.2 in his examination-in-chief has not deposed anything about the existence of the park in 35 guntas of land as stated by P.W.1 in the cross-examination.
22. It is further to be noted here that in this case court commissioner was appointed by allowing the application filed by the plaintiff. The court commissioner i.e., surveyor has submitted his report before this court and the same was marked as Ex.C.1 during the course of his chief-examination. The plaintiff has cross-examined C.W.1. During the course of cross-examination of P.W.1, no suggestions are made regarding existence of park in 35 guntas of land granted to the plaintiff. In the sketch produced by the court commissioner along with his report, the park is not shown to have been situated in the Sy.No.167. The court commissioner has shown Sy.No.167 by letters A, B, C, D, E, F, G, H, I, J in the sketch prepared by him. The existence of Sy.No.167 is not in dispute. In the sketch the surveyor has shown the existence of gas godown building constructed in the plaintiff by pink colour. It is mentioned that the said gas godown is situated in Sy.No.129, 130 and 167. It is also mentioned in the sketch that the portion shown by blue ink is the canal property and it is measuring 5 guntas. It is also mentioned in the sketch 28 O.S.No.2980/2009 that the portion shown in red ink is the portion of Sy.No.167, measuring 1 ½ gunta and the same has been encroached by the owner of Sy.No.110 by constructing building. In the sketch, it is stated that the portion shown by yellow ink is the portion of Sy.No.167 measuring 24 guntas where in there are existing houses and buildings. In the sketch, it is stated that the plaintiff has put up fence in 4 gunta of land which is open space and there is a park to certain extent of said property.
23. From the report of the court commissioner, it is clear that the park is not in existence in 35 guntas of land in Sy.No.167 and it is also clear that gas godown constructed by the plaintiff is not fully situated in Sy.No.167 and there are houses and buildings in Sy.No.167 property and Sy.No.167 property is not complete vacant land, except the portion of the property where the plaintiff has put godown as shown in the sketch of the commissioner report. Though the plaintiff has objected the court commissioner report on the ground that the court commissioner has not properly conducted the work as per the memo of instructions, the plaintiff has not got surveyed the suit schedule property independently through competent authority and she has not produced any such survey sketch before the court. It is to be noted here that P.W.1 during the course of cross- examination has admitted that she was present when the 29 O.S.No.2980/2009 court commissioner has visited the spot and she is also put her signature on the mahazar prepared by the court commissioner. P.W.1 in her cross-examination at page No.33 has clearly admitted that the court commissioner had issued notice to her about the court commissioner work. She has also clearly admitted that she was present at the time of conducting the survey. She has also admitted in her cross-examination that the measurement was done by surveyor in her presence. she has also admitted in her cross-examination that the court commissioner in his report has stated that defendant No.1 has not encroached 35 guntas of land belonging to the plaintiff. Further in the mahazar submitted by the court commissioner the signature of the plaintiff and the signature of advocate for the plaintiff is also the formed along with the signature of defendants and the villagers. Thus it is clear that the court commissioner has conducted the court commissioner work in the presence of plaintiff and measured the property in the presence of plaintiff and he has submitted his report. As such, I do not find any valid ground to disbelieve the report of the court commissioner in the absence of any contrary evidence adduced on behalf of the plaintiff or in the absence of production of any survey sketch by the plaintiff of the suit property which is issued by the competent 30 O.S.No.2980/2009 authority which is contrary to the report of the court commissioner.
24. P.W.1 during the course of cross-examination has not specifically denied the suggestions put to her that she has obtained site No.89, 90, 129 and 130 from the defendant No.1 in the layout formed by defendant No.1. But she has stated that she do not know about the said fact. P.W.1 in her cross-examination has admitted that park is existing towards the western side of the suit property. P.W.1 in her cross-examination has admitted that gas godown is existing in 2000 sq.ft. property. But she has denied the suggestions put to her that the said gas godown situated in the sites obtained by her from defendant No.1. P.W.1 in her cross-examination has admitted that she has not obtained any permission from BBMP for construction of gas godown. She has stated that she has obtained permission from government for the same. P.W.1 in her cross-examination has admitted that she has stated that she has not produced any such permission. The plaintiff has not produced any permission obtained by her for construction of gas godown and she has not produced approval plan for construction of the gas godown. Production of the permission or license or approval building plan for construction of godown is very much necessary in order to know where exactly the gas godown was 31 O.S.No.2980/2009 constructed and in order to know whether the permission is granted to the plaintiff for construction of gas godown in Sy.No.167 or not and in order to know that whether the gas godown is situated in portion of 35 guntas of land situated in Sy.No.167 property granted to her or not. Though the P.W.1 has stated that she do not know whether she has got 4 sites from the defendants in her cross-examination, but during the course of cross-examination of D.W.2 it was suggested on behalf of the plaintiff that only two sites are given to the plaintiff as per Ex.P.40 order.
25. According to the plaintiff, Ex.P.40 is the order regarding handing over of possession of the suit property to her. But Ex.P.40 is not exactly the order passed by the competent authority regarding handing over of 35 guntas of land of Sy.No.167. But in Ex.P.10 it is mentioned that 11.65 guntals of land is over lapped in Sy.No.167 and the possession of the said property will be handed over to the plaintiff after taking back the same from the society. But there is mention about existence of park in 35 guntas of land. Further the plaintiff has not produced the documents to show that further proceedings as per Ex.P.40 was conducted by the BDA and said alleged over lapping 11.65 guntas of land was taken by from the society and possession of the same was handed over to the plaintiff. Further it is not the case of the plaintiff that only 11.65 gunta 32 O.S.No.2980/2009 of land is encroached by the defendants. Under these facts and circumstances, doubt arises about the say of the plaintiff that the possession of 35 guntas of land in Sy.No.167 within the specified boundaries has been handed over to her after the grant of the said property. Further doubt also arises about the contention of the plaintiff that she was in possession and enjoyment of the suit schedule property within the boundaries and measurements shown in the suit plaint and the defendants have illegally came in possession of the same. Further as it is discussed earlier and as per the admission of plaintiff herself that she is not in possession and enjoyment of the suit schedule property. Further the plaintiff has not got surveyed the suit schedule property by the competent survey department in order to know where the godown is situated in Sy.No.167 and where the defendants have encroached in Sy.No.167 property to the extent of 25115 sq.ft.
26. Further as it is stated earlier, from the report of the court commissioner, it is clear that there are several structures and buildings surrounding the gas godown in Sy.No.167 property. Further as it is stated earlier, P.W.1 in her cross-examination has stated that there is a park in 35 guntas of land granted to her by government. There are no sufficient materials on record to show that the defendants 33 O.S.No.2980/2009 have encroached 35 guntas of land granted to the plaintiff in Sy.No.167 as alleged by the plaintiff. Further it is clear that the plaintiff is claiming the park area as 35 guntas of land granted to her. The plaintiff has not produced any documents issued by the granting authority to show that 35 guntas of land within specified boundaries is granted to her and she has been put in possession of said extent of land. It seems that the plaintiff by seeking the relief of declaration and possession of suit schedule property is intending to claim the park area which is not situated within the property granted to her in Sy.No.167. As such, I am of the opinion that even though the plaintiff has proved that 35 gunta of land in Sy.No.167 is granted to her by the government and even though the plaintiff has proved her title over the said extent of land on the basis of grant order, ofr the discussion made above, I am of the opinion that the plaintiff cannot be declared as absolute owner of the suit schedule property within the measurements and boundaries shown in the suit plaint.
27. The relief of declaration of ownership right over suit property can be granted only when the plaintiff establishes the fact that property described in the schedule of the plaint within the boundaries shown in the schedule was granted to her by competent authority. As it is discussed earlier, there is no sufficient materials on record 34 O.S.No.2980/2009 to show that the property described within boundaries shown in the schedule has been granted by the competent authority to the plaintiff. The documents produced on behalf of the plaintiff are not sufficient to prove the fact that the property situated within the measurements and boundaries shown in the schedule in the suit plaint is granted to the plaintiff. Mere existence if grant order in favour of the plaintiff with respect to 35 guntas of land in Sy.No.167 itself is not sufficient to com to the conclusion that the property describe within the measurement and boundaries of the suit plaint is granted to plaintiff and possession of the same was given to her. The plaintiff is seeking the declaration of her ownership right over property described in the suit plaint. But there are no substantive documents to prove that the property described in suit plaint within boundaries in Sy.No.167 is granted to plaintiff. It is already discussed and held above that there is doubt regarding possession of suit property by plaintiff over suit property and construction of godown in suit property. Under these facts and circumstances, I am of the opinion that the plaintiff cannot be considered as absolute owner of the suit schedule property within the boundaries and measurements shown in the suit plaint merely on the basis of said grant order. Hence, I am of the opinion that the plaintiff has failed to prove her title over the suit property 35 O.S.No.2980/2009 within the boundaries and measurements shown in the suit plaint. Further the plaintiff has failed to prove her lawful construction, possession over the suit schedule property. When the plaintiff has failed to prove her possession over the suit schedule property, the question of interference of the defendants with the alleged possession of the plaintiff over the suit property does not arises. The plaintiff has failed to prove Issues No.1 to 3. Accordingly, I answer Issues No.1 to 3 in Negative.
28. Further as it is stated earlier, the plaintiff has failed to prove that the defendants are in illegal possession of suit schedule property to the extent of an area measuring 26115 sq.ft. The plaintiff has failed to produce any substantial documents or survey sketch in order to show that the defendants are in illegal possession of 26115 sq.ft. in Sy.No.167 property out of 35 guntas of land granted to her. As it is discussed earlier, as per the commissioner report, there are many buildings and structures in Sy.No.1677 property. The plaintiff has failed to adduce any sufficient oral and documentary evidence to show that all the defendants are in illegal possession of suit schedule property to the extent of 26115 sq.ft. The plaintiff has failed to prove Additional Issue No.1. Accordingly, I answer Additional Issue No.1 in Negative.
36 O.S.No.2980/200929. Issues No.4 and 5 and Additional Issue No.2:- The plaintiff in the suit has contended that she is absolute owner of the suit schedule property. It is already discussed and held above that though 35 guntas of land in Sy.No.167 granted in the name of plaintiff, the plaintiff has failed to prove that title of 35 guntas of land in Sy.No.167 within the boundaries shown in the suit plaint has been transferred to her by the competent authority and the plaintiff has failed to prove the handing over of possession of the said property to her as per the grant order. Further it is already discussed and held above that the plaintiff has failed to prove that defendants are in illegal possession of 26115 sq.ft. land in Sy.No.167 property out of 35 guntas of land. Further it is already discussed and held above that the plaintiff has failed to prove her lawful possession over the suit schedule property and the illegal interference of the defendants with her lawful possession and enjoyment over the suit schedule property. As such, I am of the opinion that the plaintiff is not entitled for the equitable discretionary relief of recovery of possession of 26115 sq.ft. of land in Sy.No.167 and for the relief of permanent injunction order. Though the plaintiff has proved that she has constructed gas godown and though she has proved that she has been in possession and enjoyment of the said gas godown and though the defendants have admitted the possession and 37 O.S.No.2980/2009 enjoyment of the plaintiff with respect to the gas godown, I am of the opinion that only on the said ground, the plaintiff is not entitled for the relief as prayed for. As such, the suit filed by the plaintiff is deserves to be dismissed. The plaintiff is not entitled for any relief as prayed for by her. Accordingly, I answer Issues No.4 and 5 and Additional Issue No.2 in Negative.
30. Issue No.6:- For the discussions made above in issues No.1 to 5 and additional issues No.1 and 2, I proceed to pass the following:
ORDER The suit filed by the plaintiff under Sec.26 r/w Order VII Rule 1 of C.P.C. is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the open court on this the 13 th day of September, 2022).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of the witnesses examined for the plaintiff:
P.W.1 Smt.S.Rajini 38 O.S.No.2980/2009 List of the documents marked for the plaintiffs :
Ex.P.1 to 21 Photographs
Ex.P.22 Negatives of Ex.P.1 to P.21
Ex.P.23 Certified copy of Government of Karnataka Land
Grant Proceedings.
Ex.P.24 Certified copy of Notice from D.C. dated
01.06.1992
Ex.P.25 Certified copy of Remittance challan
dated 17.12.1992
Ex.P.26 Certified copy of mutation entry
Ex.P.27 & 28 RTC extracts for the year 1991-92 and 1999-2000
Ex.P.29 Certified copy of demand register
Ex.P.30 Certified copy of tippani dated 03.10.1992
Ex.P.31 Certified copy of settlement Akarband
Ex.P.32 Certified copy of village map
Ex.P.33 Certified copy of Khatha certificate
Ex.P.34 Certified copy of Holder Khatha certificate
Ex.P.35 Certified copy of Khatha extract
Ex.P.36 to 38 Certified copy of tax paid receipts Ex.P.39 Certified copy of RTC extract for the year 2007-08 Ex.P.40 Certified copy of letter from BDA dated 22.07.1992 Ex.P.41 Certified copy of order in W.P.24200/98 Ex.P.42 to 46 Office copies of letter addressed to the various departments of BBBMP Ex.P.47 Postal receipts in all seven in numbers.
Ex.P.48 Under certificate of posting receipts in all siz in numbers 39 O.S.No.2980/2009 Ex.P.49 Tax paid receipt Ex.P.50 Acknowledgment issued by BBMP Ex.P.51 & 52 Khatha certificate and Khatha extract Ex.P.53 to 58 Postal acknowledgments Ex.P.59 to 66 RTC extracts Ex.P.67 Notice issued by BBMP Ex.P.68 Reply to Ex.P.67 notice Ex.P.69 Postal receipt Ex.P.70 RTC extract Ex.P.71 Order of BDA dated 22.07.1992 Ex.P.72 Drone survey image Ex.P.73 Sketch obtained under RT Act Ex.P.74 CD List of the witnesses examined for the defendant's society:
D.W.1 R.Ravindra D.W.2 R.Mallikarjunaiah D.W.3 Omprakash
List of the documents marked for the defendant's society:
Ex.D.1 Original allotment letter dated 06.07.1988 Ex.D.2 Original approved letter dated 15.05.1989 Ex.D.3 Original work order Ex.D.4 Sanction plan Ex.D.5 Original letter of BDA for release of 146 sites Ex.D.6 Remittance challan Ex.D.7 Original memorandum Ex.D.8 Letter sent to defendant No.1 40 O.S.No.2980/2009 Ex.D.9 Original sketch Ex.D.10 Society resolution Ex.D.11 Bye-laws Ex.D.12 Authorization letter dated 05.10.2021 Ex.D.13 Certified copy of survey sketch LII Addl. City Civil & Sessions Judge, Bengaluru.41 O.S.No.2980/2009
Judgment pronounced in the open court (vide separate order):
ORDER The suit filed by the plaintiff under Sec.26 r/w Order VII Rule 1 of C.P.C. is hereby dismissed.
No order as to costs.
Draw decree accordingly.
LII Addl. City Civil & Sessions Judge, Bangalore.