Bangalore District Court
Sri. Muddegowda vs The Commissioner on 31 March, 2015
C.R.P. 67) Govt. Of Karnataka
TITLE SHEET FOR JUDGEMENTS IN SUITS
Form No.9(Civil)
Title sheet for
Judgment in
Suits
(R.P.91)
IN THE COURT OF XVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY. (CCH.NO.12)
Dated, this the 31st day of March, 2015.
-: PRESENT :-
SRI SHUKLAKSHA PALAN, B.Com.,LL.M.
PRESIDING OFFICER, FAST TRACK COURT-XV
AND C/C OF XVI ACC & SJ, BANGALORE.
O.S.NO.5028/2013
PLAINTIFF : Sri. Muddegowda
S/o.Late Sri.Venkata Ramanappa, 49
Years, R/o.No.Muddayyana Palya,
Ward No.72, Vishweshwaraiah
th
Layout, 7 Block, Vishwaneedam
Post, Yeshwanthapura Hobli,
Bengaluru-9.
(By Smt.R.S.Premalatha, Sri.Mohan S.
Advocates)
- VERSUS-
DEFENDANT : The Commissioner, The Bangalore
Development Authority, Kumara Park,
Sankey Road, Bengaluru- 20.
(By Sri.M.N.D., Advocate)
/2/ O.S.No.5028/2014
Date of institution of the suit : 11.7.2013
Nature of the suit (suit on Suit for declaration and
pronote, suit for declaration injunction.
and possession suit for
injunction,etc) :
Date of the commencement of 18.8.2014
recording of the evidence
:
Date on which the Judgment 31.3.2015
was pronounced
:
Total duration Year/s Month/s Day/s
01 08 20
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(SHUKLAKSHA PALAN)
Presiding Officer, FTC-XV and
C/C of XVI ACC & SJ, BANGALORE.
/3/ O.S.No.5028/2014
JUDGMENT
This suit is filed by the plaintiff against the defendant to declare that he is the absolute owner of the plaint B schedule property and also to grant an order of mandatory injunction directing the defendant to deliver the schedule B property measuring 20 guntas and further to direct the defendant to pay compensation of Rs. 5 Lakhs as damages caused to the schedule B property with interest at 18% and further restrain the defendant - authority from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property by way of permanent injunction.
2. The brief facts made out by the plaintiff before the Court are that, he is the absolute owner of Site No.50 measuring 1 acre 38 guntas of Gidadakonenahalli, Yeshwanthapura Hobli, Bengaluru North Taluk. This property has been acquired by him through the palupatti took place /4/ O.S.No.5028/2014 during 1983, then it was bearing Sy.No.29/2. Later on the revenue records of properties got changed in the name of this plaintiff. Sy.No.50 was originally measuring 4 acres in extent out of which the plaintiff's share is 2 acres on North side of the property. He had planted 40 coconut trees and dug the bore well and the entire property was converted as non-agricultural land. The defendant - authority had notified this entire 4 acres of land for formation of Sir.M.V.Layout, but due to the objections raised by the plaintiff, out of this 2 acres of land, 1 acre 38 tunas were deleted from that notification. The defendant formed layout surrounding the property belonging to the plaintiff, but his property had not been touched earlier. He is residing in the property measuring 1 acre 38 guntas as rightful owner with his possession. Within the schedule property he has constructed a hallow brick factory with necessary licence from panchayath and also formed the roads to his property. Now /5/ O.S.No.5028/2014 there are 30 coconut trees in the property belonging to him. On 29.6.2013 some officials of the defendant-authority came near the property and declared that they are making sites, when he objected, the defendant officials have threatened him. According to the plaintiff, except acquisition of 2 guntas of land in his property, the remaining 1 acre 38 guntas is in his possession, of which the defendant - authority had no right since the said land is not acquired. But on 7.5.2014, once again the defendant's officials came to the property, they illegal demolished the structures existing on the schedule property without notice with the help of the jurisdictional police, thereby, caused a loss to the tune of Rs.5 Lakhs to him. In the meantime, he had already approached the Hon'ble High Court of Karnataka by filing MFA No. 316/2014 and the Hon'ble High Court of Karnataka had granted an order of status-quo on 16.1.2014 and the matter was disposed off by extending the Order of Status-
/6/ O.S.No.5028/2014 quo till disposal of this suit. Even there was a direction for appointing a competent surveyor for the purpose of measuring his and the defendant's properties. But, the defendant without measuring the same, taken law into his hands, demolished the structures belonging to him. The contention of the defendant that this 20 guntas of land which was illegally dispossessed by him is part and parcel of Sy.No.51, is false. No doubt, the defendant has acquired the surrounding lands during 2003 for formation of Sri.M.V.Layout and immediately they have taken possession of their lands and utilized for implementing the project. Action taken by the defendant is illegal and high handed against the order of Hon'ble High Court of Karnataka. The suit schedule B property is the part and parcel of schedule A property, which is belonging to him. Accordingly, the plaintiff approached this court by seeking the above said remedies. Prayed for decree of the suit.
/7/ O.S.No.5028/2014
3. The defendant filed written statement and denied the contention that plaintiff is the absolute owner, in possession and enjoyment of Sy.No.50 measuring 1 acre 38 guntas of Gidadakonenahalli, Yeshwanthapura Hobli, Bengaluru North Taluk and acquired the same through palupatti and its earlier Sy.No.29/2. The further allegation of the total extent of this land and planting of coconut trees in 2 acres of land by the plaintiff, conversion of this land into non- agricultural purpose all are denied. It is admitted that earlier 4 acres of land in Sy.No.50 was acquired for forming of Sir.M.V.Layout and later, only 2 acres 02 guntas of land was detained and remaining 1 acre 38 guntas was not utilized for the purpose of this formation of layout. He further denied about the forming of layout surrounding the schedule property and also contended that the plaintiff's property is not touched by them. No doubt, in Sy.No.50 only 2 acres 2 guntas of land was notified finally and same is utilized under /8/ O.S.No.5028/2014 the scheme. The existence of plaintiff's hallow brick factory in the schedule property, obtaining the licence by pachayath and getting yield from 30 coconut trees, are denied. The allegation about the approach of the defendant's officials on 29/6/2013 and threatening the plaintiff are all denied as not proper and correct. Further, the allegation of with the help of men and machinery, they are going to dispossess the plaintiff from the suit property is not proper and correct. According to them, out of 4 acres of land in Sy.No.50, only 2 acres 2 guntas was acquired finally and the compensation amount was paid, this plaintiff has collected the compensation amount to the extent of 2 guntas of land in Sy.No.50.
4. In the additional written statement, the defendant denied the allegation about the illegal demolition of the structure without prior notice and causing loss to the tune of Rs. 5 Lakhs to the plaintiff. On the other hand, the /9/ O.S.No.5028/2014 plaintiff has encroached the entire portion of Sy.No.51 and constructed shed unauthorisedly and that was removed by demolition order issued by the Commissioner. They never demolished any shed situated in Sy.No.50 belonging to the plaintiff. No doubt, the Hon'ble High Court of Karnataka granted status-quo till the disposal of the suit, but that is solely with respect to Sy.No.50 and not in respect of Sy.No.51. He has never taken the law into their own hands as alleged by the plaintiff. On the other hand, the plaintiff had encroached their property and constructed the shed. No doubt, they have acquired the land in and around the suit property in the year 2003 for formation of Sir.M.V.Layout and that they have immediately taken possession of the land which was acquired and utilized for implementing the project. On the other hand, the plaintiff is trying to grab the land in Sy.No.51, which is acquired property and misleading the Court by stating that it is part and parcel of Sy.No.50.
/ 10 / O.S.No.5028/2014 Allegation of complaint against the plaintiff is also admitted. It is their further contention that, after acquisition of land they have formed site in Sy.No.51 and allotted to several allottees. However, they could not hand over the possession of the sites to the allottees as the plaintiff had encroached the portion of land in Sy.No.51 and hence, they have rightly demolished the illegal construction over the land in Sy. No.51 and vacated the encroachment. Hence, prays for dismissal of the suit.
4. On the above pleadings of the parties, my learned predecessor and this Court has framed the following issues and additional issues :-
1) Whether the Plaintiff proves his lawful possession over the suit schedule property as on the date of the suit?
2) Whether the Plaintiff proves the alleged interference?
/ 11 / O.S.No.5028/2014
3) Whether the suit is not properly valued
and the court fee paid is insufficient?
4) Whether the Plaintiff is entitled for the
relief of permanent injunction as prayed?
5) To what order or decree?
Additional issues framed on 5.8.2014 :
1) Whether the plaintiff proves that the defendant authority illegally demolished the structures existing in the suit property dated 7.5.2014 and caused loss to the tune of Rs.5 Lakhs ?
2) Whether the plaintiff further proves that he has been dispossessed from the portion of the schedule property during the pendency of this suit ?
Additional Issues framed on 14.8.2014 :
1) Whether the plaintiff proves that, he is the owner of schedule B property ?
/ 12 / O.S.No.5028/2014
2) Whether the plaintiff is entitled for
possession of schedule B property ?
5. To prove the case, plaintiff is examined as P.W.1 and got marked 53 documents and closed his side. The defendant examined one witness and marked 5 documents and closed his side.
6. Heard the arguments of learned counsel for the plaintiff Sri. M.S., and the defendant's counsel Sri.M.N.D. and perused the over all materials on record.
7. The above Issues are answered as follows : -
Issue No.1 : Negative.
Issue No.2 : Negative.
Issue No.3 : Negative.
Issue No.4 : Negative.
Addl.Issue No.1
Dated 5.8.2014 : Negative.
Addl.Issue No.2
Dated 5.8.2014 : Negative.
/ 13 / O.S.No.5028/2014
Addl.Issue No.1
Dated 14.8.2014 : Negative.
Addl.Issue No.1
Dated 14.8.2014 : Negative.
Issue No.5 : As per the final order, for the
following :
REASONS
8. Additional Points No.1 and 2 framed on
5.8.2014 : These two issues are taken together by
answering in the first instance, since the suit was after converted as suit for declaration along with other reliefs.
9. It is contended by the plaintiff that he is the absolute owner of the Site No.50 measuring 1 acre 38 guntas of Gidadakonenahalli, Yeshwanthapura Hobli, Bengaluru North Taluk. This property is shown as schedule A property along with its boundaries. No doubt, the location of this property is not in dispute. The plaintiff has also shown the schedule B property. According to the plaintiff, this is also / 14 / O.S.No.5028/2014 part and parcel of the land in Re-Sy.No.50, measuring 20 guntas in extent, which is part and parcel of schedule A property along with this boundaries. The location of the schedule B property is also not in dispute.
10. According to the plaintiff, earlier this Site No.50 of Gidadakonenahalli was totally measuring 4 acres in extent, there was a partition in between him and his brother during 1983 and in that palupatti, he had got 2 acres of land in this original Sy.No.29/2 measuring 2 acres in extent. Earlier, he had planted 40 coconut trees and dug the bore-well in this 2 acres of land bearing the present re-survey No.50 of the said village. He had also contended that the entire 2 acres of land was converted into non-agricultural land by virtue of Order of Deputy Commissioner on 10.4.2003 and later on, in the portion of his land measuring 1 acre 38 guntas, he had started a hallow bricks factory with licence from the / 15 / O.S.No.5028/2014 panchayath, formed the road to enable to his brick business. But, all these contentions of the plaintiff have been denied by the plaintiff. Hence, these contentions are required to be proved.
11. In this regard the plaintiff had filed his affidavit- in-chief, on reiterating the plaint averments as contemplated under Order 18 Rule 4 of CPC. Coupled with it, he had produced the original sale deed of entire Sy.No.29/2 as Ex.P.1. Ex.P.3 is the RTC extract of Sy.No.29/2 proving the possession of the land in dispute. Exs.P.4 and P.5 are the RTC extract for the year 2001-2002 showing that the plaintiff is in possession and enjoyment of the property measuring 2 acres in extent in Sy.No.50 of old Sy.No.29/2. Ex.P.8 is the mutation extract copy, is to substantiate his contention that in the family partition, property measuring 2 acres in this Sy.No. 29/2 gone to the share of this plaintiff. Ex.P.9 is the Order passed by the Deputy Commissioner dated 10.4.2003 / 16 / O.S.No.5028/2014 about Sy.No.50 measuring 2 acres in extent for non- agricultural purpose and that is also proved that the plaintiff is the owner of that land. The documentary evidence can be viewed by this Court because they are the public documents. So, even though the defendant denied the ownership of the land in Sy.No.50 belongs to plaintiff, no such rebuttal evidence is adduced in this regard. So basing upon this documentary evidence and coupled with the oral statement of P.W.1, the Court can very well affirm that as on the date of suit the plaintiff is owner of the property in Sy.No.50 of northern portion.
12. It is also admitted contention of the plaintiff that, after palupatti, next to the year 2003 defendant acquired the surrounding lands to the Sy.No.50 including the land in Sy.No.50 totally measuring 4 acres in extent. It is further case of plaintiff that, due to raising objections by him, out of 62 acres of land of his share, the defendant has deleted 1 / 17 / O.S.No.5028/2014 acre 39 guntas and remaining 2 guntas of land was acquired for the purpose of forming the road in the northern side of this Sy.No.50. This fact is also admitted by the defendant.
13. The only dispute appears between the parties is that, according to the plaintiff after acquisition of 2 guntas of land in this Sy.No.50 belongs to him, he was in possession of the land measuring 1 acre 38 guntas and later he had planted coconut trees and constructed shed by obtaining permission from the concerned panchayath as well as he is running a hallow bricks industry. So, it is his specific case that the entire hallow bricks industry along with the sheds are situated within this Sy.No.50 measuring 1 acre 38 guntas in extent. On the other hand, according to the defendant, after acquisition of land and forming layout, the plaintiff has encroached their property in Sy. No.51 and constructed sheds, that is why they have demolished the same after permission granted by their Commissioner. In this regard, / 18 / O.S.No.5028/2014 the permission granted by the Commissioner is marked as Ex.D.4 dated 3.1.2014. On perusing all these documents, it is revealed to this Court that the Commissioner has empowered their subordinates to demolish unathorised construction only in S.No.51 of land in Gidadakonenahalli Village. So, that document does not empower the defendant officials to demolish any structures built on Sy.No.50 measuring 1 acre 38 guntas, absolutely belonging to the plaintiff. But, this is not the contention of the plaintiff. Such being the case, when the plaintiff had approached the Court with his affirmation that the defendants unathorisedly demolished his structure situated in Sy.No.50, then the initial burden is on his shoulder to prove and establish. To that effect he has filed his evidence-in-chief as stated above. But, whether those contentions and his documentary evidence are sufficient to establish that the sheds admittedly demolished by the defendant - officials is situated within the Sy.No.50 / 19 / O.S.No.5028/2014 measuring 1 acre 38 guntas. This is an important aspect required to be proved by the plaintiff because, he had approached the Court with appropriate remedies with the affirmation that he is in possession of Sy.No.50 measuring 1 acre 38 gutnas and in that extent, he built the shed to enable to his brick industry.
14. In this regard this Court has once again going through the documentary evidence. Ex.P.1 is the sale deed, would not contemplate this fact in issue. Ex.P.2 is the certified copy of the sketch required by the defendant's officials. This document discloses the location of Sy.No.50 and also proving the portion acquired by the defendant. The document never discloses that in such and such an area the plaintiff has built the sheds for the purpose of doing his above said business. Ex.P.3 is the old document, which do not prove this fact in issue. Exs.P.4 to P.7 are the RTC extracts of the same Sy.No.50 showing that the plaintiff is in / 20 / O.S.No.5028/2014 possession and enjoyment of the property measuring 1 acre 36 guntas during 2011-12 and 2013-14. So his own document itself disproves his contention that he was in possession and enjoyment of 1 acre 38 guntas of land in this survey number. But according to him, he had made some proceedings before the Tahasildar about the rectification of mistake, even though as on till today he did not rectify the said mistake. Ex.P.8 is the mutation extract which does not prove this fact in issue. Ex.P.9 is the conversion order issued by the Deputy Commissioner dated 10.4.2003. This is just earlier to the acquisition proceedings because, the said conversion order is with respect to 2 acres of agricultural land in Sy.No.50. So, the document does disclose the existence of said shed constructed by the plaintiff in the Sy.No.50 during that point of time. He has produced some photographs to locate and identify the property and those photos are marked at Exs.P.27 to P.32 and Exs.P.36 to P.47 / 21 / O.S.No.5028/2014 respectively. On perusing these photographs it can be seen that in a property there is a hallow bricks factory, there are some sheds and it is also seen about demolition of said sheds by the officials of defendant. So these photos will not disclose that the defendant demolished the sheds belonging to the plaintiff situated in Sy.No.50 measuring 1 acre 38 guntas in extent.
15. It is the contention of the plaintiff that he took permission from the concerned Panchayath for the purpose of running hallow bricks factory and constructed the sheds. If an industry is required to be established, even a small scale or big scale, the concerned department has to issue permission. But, the plaintiff unfortunately did not produce the said permission issued by the concerned authority in respect of his contention that he took the same. Secondly, in order to build the said shed in Sy.No.50, within 1 acre 38 / 22 / O.S.No.5028/2014 guntas of land, he had also obtained permission from the concerned panchayath. But, no such documents are produced by the plaintiff. So, when the plaintiff himself admitting that he took permission for running the industry, nothing prevented him to produce those important documents to the Court. When he himself has withheld the same, this Court is of the opinion that an adverse inference is required to be drawn against him. He did not give any evidence for their non-production also.
16. It is the specific case of the plaintiff that, while he was running his hallow bricks factory in his property on 10.4.2003, the defendant's officials came with bulldozers, etc., and demolished his constructed sheds and caused loss to the extent of Rs.5 Lakhs. No doubt, the defendant is admitting the demolition of sheds, but according to him, defendant demolished the said sheds which are situated in acquired Sy.No.51, which is adjacent property of Sy.No.50.
/ 23 / O.S.No.5028/2014 So, in turn the defendant denied the fact about the construction of the sheds by the plaintiff in his Sy.No.50. If the defendant had demolished the sheds in Sy.No.50 and taken possession of their portion of land, it amounts to encroachment of property belonging to the plaintiff. In the schedule B property, he had given the boundaries of property which has been encroached and demolished by the defendant with boundaries. Here it was shown that the defendant had encroached the sheds situated in the property measuring 20 guntas in extent, out of this 1 acre 38 guntas. So, if that contention is believed, the plaintiff is now only having 1 acre 18 guntas of land in this Sy.No.50 belonging to him. But that aspect is also required to be established by him through cogent material, documentary evidence, because it is the matter of encroachment, it is the right available to the plaintiff upon an immovable property valuable property. Such being the case, whether this plaintiff / 24 / O.S.No.5028/2014 made attempt to measure the property which is now in his possession and enjoyment after demolition of sheds and encroachment by the defendant. In this regard, this Court has gone through the oral admissions given by the plaintiff in his cross-examination done by the learned counsel for the defendant. In the cross-examination he admitted that, in the eastern side of his suit property belongs to him there is BDA site situated. On the other hand, it is mentioned in schedule B that in the eastern side, Sy.No.51 is there and in the western side property measuring 1 acre 18 guntas is situated. So, it is contradiction version. Leaving apart, he further admitted that he do not know the survey numbers of the properties situated around his suit property. Whether his contention can be believed even though he had clearly explained the same in his suit A and B schedules. He further admitted that the defendant had acquired only 2 guntas of land in his property and for that he took compensation / 25 / O.S.No.5028/2014 amount. This fact is also not in dispute. It is his further admission that the shed put up for preparing the hallow bricks is situated in Sy.No.50 itself. But, he denied the suggestion put to him that it is situated in Sy. No.51. It is his further admission that the hallow bricks factory measures 10 x 10 feet shed situated in south eastern corner of his property, so it might be situated by the side of Sy.No.51. So, there may be some clarification absolutely required in this identification of property which has been demolished by the defendant. Hence, it is further questioned to the plaintiff that whether he had surveyed the land after acquisition proceedings, for which his answer is that, ten years back BDA had measured the property and shown it as Sy.No.50, which consists of 1 acre 38 guntas. So, it can be inferred that during the course of measurement of acquired land, the defendant's officials have also measured the property belonging to the plaintiff and confirmed that he was in / 26 / O.S.No.5028/2014 possession and enjoyment of 1 acre 38 guntas in extent. But, afterwards he did not make any attempt to survey the land even though the defendant has allegedly encroached his portion of land by demolishing the sheds constructed by him. In this regard, he further admitted that he had not filed any application to the BDA for fixing the boundary of his land measuring 1 acre 38 guntas in Sy.No.50 and that admission itself goes to show that the plaintiff is not sure about the extent and boundaries of his property. It is further admitted by him that he has not surveyed both the lands in order to ascertain the exact location of the shed to ascertain that whether it is situated in Sy.No.50 or Sy.No.51. He volunteers that the survey was conducted long back. So, these admissions which go to disprove the entire case of the plaintiff. When he had approached the Court with the remedy of declaration and mandatory injunction and claiming 20 guntas of land, nothing was prevented him to take the / 27 / O.S.No.5028/2014 appropriate action. That shows his conduct of hiding something as well as he did not approach the Court with clean hands.
17. After closure of the evidence, the learned defence counsel filed application for appointment of Court Commissioner for the purpose of ascertaining the exact matter in dispute prevails in the locality and even without the objections from the plaintiff's side, this Court has appointed Court Commissioner. Said Court Commissioner had gone to the spot. But, he has been directed to answer the work memos submitted by both sides and also to take assistance of the documents if required. Accordingly, by taking warrant of Court Commissioner gone to the spot, measured the properties and submitted the report. That was objected by the plaintiff. Hence, even the report was heard and the Court Commissioner was examined and his report was set aside. But during that point of time, the material high lighted / 28 / O.S.No.5028/2014 by the learned counsel for the plaintiff that this Court Commissioner did not take assistance of Ex.D.5 - Sir.M.V. Layout sketch. Accordingly, the second Court Commissioner was appointed and he has been directed to conduct the survey with the help of Ex.D.5 - layout map. Accordingly, this Court Commissioner had measured the property in the presence of plaintiff and defendant's officials and submitted the report. Even though the plaintiff filed objections to this second report also, but he did not objected the report with respect to the report submitted by highlighting Ex.D.5 document. After considering his objections, this Court has totally rejected the contention of the plaintiff in objecting the present report submitted by the Court Commissioner, because of the fact that this Court Commissioner had after taking into consideration the material facts contained in Ex.D.5 had measured the properties and submitted his report. Said Order passed by this Court is not at all / 29 / O.S.No.5028/2014 challenged by the plaintiff. Such being the case, the present report submitted by the Court Commissioner being the Court record, can be taken into consideration.
18. Leaving apart, the defendant submitted documentary evidence including the oral statement of the official of defendant. That being so, now it is to be seen that whether those oral documentary evidence submitted on behalf of this defendant is going to disprove the contention urged by the plaintiff that the defendant's officials have demolished the shed situated in Sy.No.50 within the plaintiff's boundaries measuring 1 acre 38 guntas in extent.
19. Ex.D.1 is the notification issued by the State Government for acquisition of the additional lands required for formation of Sir.M.V.Extensional layout on 9.9.2003. This document discloses that among other neighbouring lands, Sy.No.51 Gidadakonenahalli Village measuring 03 acres in / 30 / O.S.No.5028/2014 extent as well as Sy.No.50 belonging to the same village measuring 2 acres 2 guntas was acquired. The boundaries of the properties acquired are also clearly mentioned in the said document. So, this document discloses that without acquiring 1 acre 38 guntas of land in Sy.No.50 belongs to this plaintiff, the notification was published. Absolutely there is no dispute with regard to the acquisition of 2 guntas of land belonging to the plaintiff. On the other hand, admittedly in this 2 guntas of land, the road was formed by the defendant during undisputed point of time. It is also pertinent to note that the road was situated in the northern side portion of this Sy.No.50 measuring 2 guntas in extent. On the other hand, according to the plaintiff itself, the sheds are situated in the southern east corner of his Sy.No.50 measuring 1 acre 38 guntas. Hence, absolutely there is no chance to demolish the sheds belonging to this plaintiff which is situated on the northern side abutting road. Ex.D.2 is the / 31 / O.S.No.5028/2014 mahazar prepared on 5.12.2003 further disclosing that in Sy. No.51, 3 acres of land was acquired and its possession was taken. So, this document will be an indication that no land was left out in Sy.No.51. It is also undisputed fact that after acquisition of Sy.No.51, 50 and other adjacent lands, this defendant has handed over the same to their engineering section and their engineering section has made the land levelled and made the layout, but possession of the property only with respect to the disputed area was not given to the concerned allottees because of the fact that, according to the defendant, this plaintiff was unathorisedly encroached the defendant's land by constructing sheds. Ex.D.3 is the further document disclosing about the taking possession of the land in Sy. No.51 and this entire land was a vacant land. So it can be inferred that, no such sheds are situated in Sy.No.51 at any point of time. Hence, during the course of taking possession of the property, entire Sy.No.51 is vacant and this / 32 / O.S.No.5028/2014 Sy.No.51 is adjacent land to Sy.No.50 even belong to this plaintiff also. The learned counsel for the plaintiff Sri.M.S. has canvassed then that the plaintiff is the absolute owner in possession and enjoyment of the property in Sy.No.50 at present measuring 1 acre 38 guntas of land subsequent to the acquisition of 2 guntas by the defendant. No doubt, plaintiff's 2 guntas of land was acquired by the defendant for the purpose of formation of road in his northern side, the remaining adjacent properties in all 3 sides of plaintiff's property had been acquired long back and sites have been carved out by the defendant. Such being the case, absolutely there is no scope and chance for encroachment of any land belongs to this defendant by the plaintiff because the said land is fully developed. Such being the case, when the plaintiff was running hallow bricks factory in his own land by constructing sheds, the defendant without notice, without conducting survey, all of a sudden demolished the same.
/ 33 / O.S.No.5028/2014 Hence, even though the plaintiff in the first instance approached the Court with a remedy of injunction, because of this subsequent development, the plaint was amended, new relief for declaration and mandatory injunction was sought by him. The defendant has forcibly taken away 20 guntas of land belonging to the plaintiff which is part and parcel of Sy.No.51. It is the duty of the defendant to establish that this shed constructed by him is part and parcel of Sy. No.51 as alleged by the defendant. The defendant to that effect did not adduce any relevant evidence. On the other hand, as on the date of suit there was no such encroachment by the defendant. The plaintiff has produced relevant materials and documents to substantiate his contention that as on the date of suit he is having 1 acre 38 guntas of land in his possession and enjoyment. The learned counsel also further drawn the attention of the Court upon Ex.P.10. It is the defendant's notification about the / 34 / O.S.No.5028/2014 acquisition of land in Sy.No.50, 51 and other adjacent survey numbers for the purpose of formation of Sir.M.V.Layout and also rightly drawn the attention of the Court on Ex.D.1, which is the layout map prepared by the defendant's officials. Those materials will substantiate that the plaintiff was in possession and enjoyment of the property measuring 1 acre 38 guntas. Even as on the date of acquisition proceedings and preparing this layout map and sketch, those documentary evidence are sufficient to prove. In further, he is the owner in possession of the land in Sy.No.50 measuring 1 acre 38 guntas as on the date of suit. It is not the defence of the defendants that he had encroached their land in Sy.No.51 and constructed the shed as well as it is not their case that, except 1 acre 38 guntas, no such other lands have been acquired from his property. When the defendant has taken the possession of the acquired Sy.No.51, how the plaintiff can encroach its portion? The defendant now cannot / 35 / O.S.No.5028/2014 dispute their own map at Ex.D.5, which is having the presumption under the provisions of Section 83 of the Indian Evidence Act also. Plaintiff's case is proved by his oral and documentary evidence and his contention is able to disprove the defendant's case in spite of leading their oral and documentary evidence. Such being the case, the plaintiff is entitled for decree. Plaintiff has been dispossessed by the defendant without due process of law. If the fact is that, if he is in unlawful possession and enjoyment of the defendant's property as defined by them, the Commissioner's report submitted at the second instance cannot be wholly believed because the plaintiff is not admitting the other portion of this map and report except the report given based upon Ex.D.5 document. Hence, the learned counsel prays to decree the suit.
20. The learned counsel for the defendant has canvassed that in the initial, the plaintiff filed an application / 36 / O.S.No.5028/2014 under Order 39 Rules 1 and 2 of C.P.C. when the suit was filed with the relief of bare injunction. The Court failed to grant injunction. Against this, the plaintiff has preferred MFA No.316/2014 before the Hon'ble High Court of Karnataka and even that MFA stood disposed off without passing any orders favourable to this plaintiff. No doubt, the Hon'ble High Court of Karnataka has directed to maintain the status-quo till the disposal of the case and hence, they have maintained the same with respect to Sy.No.50 and absolutely there is no hurdle to proceed with Sy.No.51, it belongs to the defendant. Such being the case, the allegation of the plaintiff that he has been dispossessed by them during the course of pendency of this suit is incorrect. The plaintiff made an illegal construction and that illegal construction was demolished by the defendant after obtaining necessary order from the concerned authority and that is with respect to Sy.No.51 and in no way connected with Sy.No.50. Ex.D.5 / 37 / O.S.No.5028/2014 also explains that an encroachment made by the plaintiff to an extent of 12 guntas in their property bearing Sy.No.51, which delayed the defendant to allot sites to those needy persons which is carved out of this Sy.No.51 and other adjacent properties. The plaintiff himself is not transparent because, he is not ready and willing to conduct the survey during the course of trail or subsequently, which will indicate his conduct i.e., when they have filed an application for appointment of the Court Commissioner as per the direction of Hon'ble High Court of Karnataka and conducted the survey, the Court Commissioner filed the report, which is also favourable to the defendant. Such being the case, the contention urged by the plaintiff that the defendant has encroached his property and demolished the plaintiff's building or sheds, do not hold any water at all. Hence, the suit is required to be dismissed with heavy costs, because he / 38 / O.S.No.5028/2014 has delayed the defendant in discharging their duties officially.
21. Basing upon the arguments canvassed on both sides, this Court has to see that whose arguments can be having more substance in this case on hand. As the Court already observed that when the plaintiff approached the Court with an allegation of encroachment of 20 guntas of land, then it is primary duty of the plaintiff to appoint a Court Commissioner to survey for the purpose of measurement of the properties. Why he did not take that much risks itself explains every thing. No doubt, the plaintiff's counsel also relying on Ex.D.5, the layout map prepared by the defendant's officials. The map is not restricted to Sy.No.50 or Sy. No.51. On the other hand, it is extended to the entire extension area newly acquired for the purpose of entire extensional area. This Ex.D.5 goes to the extent of Sy.No.50 / 39 / O.S.No.5028/2014 belongs to plaintiff locate the boundary of total Sy.No.50 measuring 4 acres acquired Sy. No.51 and other adjacent lands. Further, it is specifically notified that in this Sy. No.51 itself, this plaintiff had encroached 12 guntas of land. On the other hand, during that point of time Sy.No.50 is having 1 acre 38 guntas which is in the possession of this plaintiff. So the document is not helpful to the plaintiff in any respect because it notifies and encroachment made by the plaintiff in the property of the defendant Sy. No.51. Such being the case, the contention urged by the plaintiff's counsel about the encroachment of plaintiff's land do not hold water at all. Even Ex.P.10 - notification relied by the plaintiff also do not establish that the defendant has encroached the property belonged to the plaintiff. On the other hand, during that point of time, the plaintiff's property measuring 1 acre 38 guntas was released from acquisition.
/ 40 / O.S.No.5028/2014
22. No doubt, Section 83 of Indian Evidence Act contemplates that, "the Court can having much presumption about the maps and plans purporting to have been made by the office of either State or Central Government while discharging their officials duty, as correct and accurate". Such being the case, if based on Ex.D.5 - layout map also, the Court can be able to come to the conclusion that the plaintiff has encroached the defendant's property and constructed the sheds which has been rightly demolished by the defendant's officials even after the suit. But it cannot be held that as an illegal and unauthorized demolition because of the fact that the defendant - Commissioner has passed such an order for the purpose of demolition of the construction which is empowered him under the provisions of BDA Act. When the plaintiff fails to establish that, he has constructed a shed in his own property, then the defendant / 41 / O.S.No.5028/2014 has to protect his own land. So, it cannot be held as an unauthorized demolition also.
23. The second Court Commissioner had gone to the spot and submitted his report and to some extent the plaintiff's counsel has filed objections. But, after hearing his objections, the objections submitted on behalf of the plaintiff has been totally rejected by this Court. Hence, even the Court can take the assistance of that report also since it forms part and parcel of this case. The Court Commissioner has answered the work memo submitted by the plaintiff and defendant. But the Commissioner has specifically shown that nearly about 21 guntas of land in Sy.No.51 (shown in green colour) is part and parcel of Sy.No.51. During the point of second commission, no doubt the defendant already demolished the sheds and taken the possession of that land. On the other hand, the Commissioner has shown the / 42 / O.S.No.5028/2014 property in possession of this plaintiff in this Sy.No.50 measuring 1 acre 17 guntas. That being so, whether it can be construed that 21 guntas of land shown in green colour is the part and parcel of this Sy.No.50. Because, in the sketch, the Court Commissioner has further shown that around the property of this 1 acre 17 guntas of plaintiff's land, defendant has encroached 21 guntas of land. But, this is not at all the case of the plaintiff. Such being the case, the Commissioner's report is not at all satisfying the contention urged by the plaintiff. Suppose the plaintiff is having constructed shed in his own property since long back and doing the business of production of hallow bricks, then it is assumed that it was constructed lawfully and in his lawful possession and enjoyment. Such being the case, he has to pay the taxes to the concerned local administration. But he did not produce any piece of receipts before the Court to substantiate that he had constructed the sheds in this / 43 / O.S.No.5028/2014 Sy.No.50 and enjoying the same for the purpose of his running production of hallow bricks factory. On the other hand, on the available materials, it is substantiated that the hallow bricks industry has been created by the plaintiff in Sy.No.51 which is belonging to the defendant. Whenever, the plaintiff failed to establish that the defendant has demolished the shed constructed in his property and encroached the portion of property in Sy.No.51, it is presumed that the defendant has demolished the sheds situated in Sy.No.51 which belongs to the defendant. Hence, there is no chance for violating the conditions imposed by his Lordship while disposing MFA No. 316/2014.
24. The defendant has examined his witnesses and he has been thoroughly cross-examined by the defendant's counsel. He has given several admissions in connection with the matter in dispute. Whether those admissions will prove / 44 / O.S.No.5028/2014 the case of the plaintiff, to disprove the case of the defendant, is the matter for consideration. But, the admitted preposition of the Law is that, the plaintiff cannot absolutely rely on the weakness of the defendant and his statement, because it is the duty of the plaintiff to prove his case himself only.
25. In the cross-examination, it was suggested to the defendant's witness by the plaintiff's counsel and he admitted that the property shown in green colour in Ex.D.5 is the left out land measuring 1 acre 38 guntas. So, Ex.D.5 - layout plan was prepared on 2.12.2009. At that point of time, even though the plaintiff is having 1 acre 38 gunatas of land in his property, it is not an admission that the sheds demolished by defendant were built in that property during that point of time. Even if the layout was prepared during 2003 subsequent to the acquisition of properties, there is no bar for encroaching the side-by land of this plaintiff.
/ 45 / O.S.No.5028/2014 Because, defendant is a Corporation unable to keep vigil all its property every day and night. Even after preparation of Ex.D.5 also there is possibility of encroachment of land by the plaintiff for construction of the shed. It is further suggested to the witness by the learned counsel for the plaintiff and it was admitted by him that they have not demolished any shed or encroached any portion of land measuring 1 acre 38 guntas which was given up by them. So, the suggestion itself is also presupposes the contention of the defendant about no encroachment in the property belongs to the plaintiff. So, the statement of D.W.1 in no way attracts the plaintiff's case. Under these circumstances and above made discussions, this Court feels that the plaintiff utterly fails to prove the contention of encroachment and demolition of the structure which was built by him in his Sy.No.50 measuring 1 acre 38 guntas.
/ 46 / O.S.No.5028/2014
26. The plaintiff also claims a sum of Rs.5 Lakhs about the loss caused by the defendant by demolishing his structures of sheds. On the other hand, nowhere it is proved and established by him that he had constructed the sheds in his own property bearing Sy.No.50. Further, he failed to establish before this Court that the said demolished property by the defendant is situated in the property of the plaintiff. When such damages is claimed by the party to the litigation, then it is an admitted preposition of law that there must be specific pleading to the effect of loss caused by the defendant. He is claiming Rs.5 Lakhs towards loss by the defendant. No doubt, the defendant has demolished the structure or shed and it was constructed by the plaintiff, but not in his property. So, it is an unathorised structure made in the property of the defendant. So, as contemplated under the provisions of BDA, they can demolish the shed even without notice also, because, the plaintiff is a trespasser in / 47 / O.S.No.5028/2014 the property belonged to the defendant. Under such circumstances, the defendant has to protect land belongs to it. It is public property. Further, the plaintiff has to substantiate through pleadings and evidence that what are the loss that have been caused to him due to the demolition of his shed. But, there is no proper pleading about what is the measurement of the shed, what are the materials that have been used to it, why he requires Rs.5 Lakhs as damages, etc., So, without pleadings, even the evidence adduced will not come to the aid of plaintiff. No evidence is available about the claim of the plaintiff to the extent of 5 Lakhs damages is concerned. The defendant never dispossessed the plaintiff from Sy.No.50 which is absolutely belonging to him, because the plaintiff has not given evidence to that effect as per the discussion made by me above. So for all these reasons, by appreciating the evidence, arguments canvassed by the learned counsel for / 48 / O.S.No.5028/2014 the plaintiff, I answer both the Additional Issues No.1 and 2 framed on 5.8.2014 in the negative.
27. Additional Issues No.1 and 2 dated 14.8.2014 : - Plaintiff has claimed that suit B schedule property is measuring 20 guntas in extent and it is part and parcel of suit A schedule property, for which he is the absolute owner. He may be the owner to the entire plaint A schedule property, but he fails to prove and substantiate it before this Court that suit B schedule property has been encroached by the defendant and demolished the construction of sheds made by him in that property. Such being the case, plaintiff fails to get possession of B schedule property since it is not established by him. Accordingly, I answer these two issues also in the negative.
28. Issues No.1 and 2 : - The suit was filed initially for the relief of permanent injunction, but due to subsequent / 49 / O.S.No.5028/2014 development, the suit was converted into declaration and damages as well as mandatory injunction. No doubt, even at present also the plaintiff is the owner of plaint A schedule property, which is still having the land measuring 1 acre 38 gunats. In turn, all this plaint B schedule property has been encroached by the defendant because this important fact in issue is not proved by the plaintiff. It is not his case that the defendant is trying to interfere with his possession and enjoyment of the property measuring 1 acre 38 guntas. Hence, I hereby answer both the issues in the negative.
29. Issue No.3 :- The defendant took the contention that the suit is not properly valued and the court fee paid is insufficient. But, after amendment to the plaint, the plaintiff has claimed the relief for damages and possession and to that effect he had paid the court fee / 50 / O.S.No.5028/2014 subsequently after filing the additional valuation slip. Hence, I hereby answer this issue also in the negative.
30. Issue No.4 : - For the above said discussion, I hereby come to the conclusion that the plaintiff is not entitled to any reliefs. Therefore, this issue is also answered in the negative.
31. Issue No.5 :- For the above made discussions in the above said points, I proceed to pass the following :-
ORDER The suit of the plaintiff is hereby dismissed with costs of the defendant.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript correct, signed and then pronounced by me in open Court on this the 31st day of March, 2015).
(SHUKLAKSHA PALAN) Presiding Officer, FTC-XV and C/C of XVI ACC & SJ, BANGALORE.
***
/ 51 / O.S.No.5028/2014
ANNEXURE
LIST OF WITNESSES EXAMINED FOR PLAINTIFF:-
PW.1 Sri.Muddegowda.
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:-
Ex.P.1 : Original sale deed dt.11.06.1954.
Ex.P.2 : Sketch. Ex.P.3 to P.7: RTC extracts. Ex.P.8 : Copy of the mutation extract. Ex.P.9 : Notice issued by Deputy Commissioner. EX.P.10 : Gazette publication. Ex.P.11 : Endorsement of the BDA. Ex.P.12 to 15: RTC Extracts. Ex.P.16 : Copy of the legal notice. Ex.P.17 : Postal receipt. Ex.P.18 : Postal acknowledgement. Ex.P.19 : Copy of the legal notice. Ex.P.20 to 22: Postal receipts.
Ex.P.23 to 25: Postal acknowledgements.
Ex.P.26 : Acknowledgement issued by the
Thavarekere Police station.
Ex.P.27 to 32: Photos.
Ex.P.33 : C.D.
Ex.P.34 : Copy of the FIR.
Ex.P.35 : Copy of the complaint.
Ex.P.36 to 47: Photos.
Ex.P.48 : C.D.
Ex.P.49 : Copy of the complaint given to the SP,
Ramanagar.
Ex.P.50 : Acknowledgment issued by the Lokayuktha
Police.
/ 52 / O.S.No.5028/2014
Ex.P.51 : Copy of the complaint given to the HRCS.
Ex.P.52 : Letter issued by the Human Rights
Commission to the SP.
Ex.P.53 : Postal receipt.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT :
D.W.1 : L.Ismail.
LIST OF DOCUMENTS MARKED FOR DEFENDANTS:- Ex.D.1 : Extract of Karnataka gazette notification.
Ex.D.2 : C/c of the Mahajar. Ex.D.3 : C/c of the land description. Ex.D.4 : Copy of the Annexure-D. Ex.D.5 : Sir.M.V. Extension layout plan. EXAMINATION OF COURT COMMISSIONER : C.W.1 : Sri.Nayaz Pasha.
DOCUMENTS EXHIBITED BY THE COURT COMMISSIONER :
Ex.C.1 : Commission warrant.
Ex.C.2 : Memo of instructions submitted by the
plaintiff counsel.
Ex.C.3 : Memo of instruction submitted by the
defendant.
Ex.C.4 : Notice.
Ex.C.5 : Letter along with report.
Ex.C.6 : Report along with my sketch
Ex.C.7 : reply given to the plaintiffs memo of
instructions .
/ 53 / O.S.No.5028/2014
Ex.C.8 : reply given to the defendants memo of
instructions.
Ex.C.9 : Mahazar i
Ex.C.9(a) : Signature of C.W.1.
Ex.C.9(b) : Signature of the plaintiff.
Ex.C.9 (c) : Signature of the surveyor.
(SHUKLAKSHA PALAN)
Presiding Officer, FTC-XV and
C/C of XVI ACC & SJ, BANGALORE.
***
/ 54 / O.S.No.5028/2014
Judgment pronounced in open Court
vide separate judgment.
ORDER
The suit of the plaintiff is hereby
dismissed with costs of the defendant.
Draw decree accordingly.
(SHUKLAKSHA PALAN)
Presiding Officer, FTC-XV and
C/C of XVI ACC & SJ, BANGALORE.