Bangalore District Court
Sri. M. Munireddy vs M/S Keerthi Gardenia on 17 January, 2022
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE, MAYO HALL UNIT,
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 17th day of January, 2022.
O.S.No.26256/2014
Plaintiff:- Sri. M. Munireddy,
S/o Late Muniswamy Reddy,
Aged about 62 years,
R/at No.128, Thubarahalli Village,
Ramagondanahalli Post,
Varthur Hobli,
Bangalore East Taluk
Bangalore-560066.
[By Sri. R. Jagadish Prasad -Adv]
V/s
Defendant:- M/s Keerthi Gardenia,
Situated at Sy No.61/1,
Thubarahalli Village,
Ramagondanahalli Post,
Varthur Hobli,
2 OS No.26256/2014
Rep. by its Managing Director,
Also Corporate Office at:
M/s Keerthi Gardenia,
Keerthi Estates Pvt., Ltd.,
G-1, Keerthi Oranatta,
C. V Raman Nagar,
Nagavarapalya, Bangalore,
Rep. by its Managing Director,
Anil Kumar.
[By Sri. Sanctum Law - Adv]
Date of Institution of the suit 21.08.2014
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Injunction
for injunction,etc.)
Date of the commencement of
14.02.2017
recording of the Evidence.
Date on which the Judgment was
17.01.2022
pronounced.
Year/s Month/s Day/s
Total duration 07 04 27
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
3 OS No.26256/2014
JUDGMENT
This suit filed by the Plaintiff against the Defendants, claiming the relief of Permanent Injunction.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, he is the absolute owner of the land bearing Sy No. 58/1, measuring 2 Acres 10 Guntas, situated at Thubarahalli Village, Varthur Hobli, Bengaluru East Taluka, as the same was acquired by him, under Registered Family Partition Deed dtd.31.12.2002. On acquiring same he has raised a building over it, for running an Educational Institution, under the name and style "Vibgyor Kannada Primary School". The adjacent land owners of the said property and the land situated towards the western side of the property, on entering into a Registered memorandum agreement dtd.14.08.2007, got created a path i.e., Road for ingress and egress to an extent of an area measuring East to West: 40 feet and North to South:
576.08 feet plus 103 feet 3 inches from East to West and 40 feet from North to South, which is described as the Suit Schedule Property in this suit. He and 4 OS No.26256/2014 the parties to the memorandum of agreement dtd.14.08.2007 are using the said Road from 2007, which is exclusively meant for their personal use and occupation, as there is no Government Road to reach the Suit Schedule Property, and the same is not a Public Road. Even to this day the said Road exclusively belongs to him and parties to the memorandum of agreement. They are using the same without any hindrances and interference from any person/s and except them none have got any right over the said Road.
Further contends that, Defendant being a builder, doing the work of construction of Residential Building/Apartments is constructing a residential building under the name and style "M/s Keerthi Gardenia" in the land bearing Sy No. 61/1 of Thubarahalli Village, Varthur Hobli, Bengaluru East Taluka, which has got to the access to the said project, on its westerns side and the same has been use and the occupation of the Defendant. The Defendant is making hectic attempts to use the Suit Schedule Property, as an alternative access, to attract the bonafide purchasers. The access available to the Defendant on the western side of its 5 OS No.26256/2014 property has been exclusively used by it, from the day one of its construction. The Defendant inorder to have good marketing of its Residential Building is making hectic attempts to use the Private Road formed and exclusively used by him and the parties to the memorandum of agreement, which is meant for their private use. He has letout his constructed building to the Educational Institution to run an school in Sy No. 58/1 of Thubarahalli Village, Varthur Hobli, Bengaluru-66 and the school is running pre-nursery class to 10 th standard, having morethan 3000 students studying in the said organization, making use of the Private Road i.e., the Suit Schedule Property formed under the memorandum of agreement. The Defendant is no way concerned or connected to the Suit Schedule Property i.e., the Private Road formed under the memorandum of agreement. He and the parties to the memorandum of agreement have cautioned the Defendant and its henchmen, workers not to make an attempts to use the Private Road, as the same belongs to them which is got created under the memorandum of agreement. On 18.08.2014 the Defendant its henchmen worker came near the Suit 6 OS No.26256/2014 Schedule Property and attempted to pass through the said Private Road- Suit Schedule Property which was restrained by him. Even he has approached to the Jurisdictional Police, but the said police have advised him to approach the Civil Courts of Law, contending that, the matter is Civil in nature. Having no other alternative, he is constrained to file the present suit. Hence prayed to decree the suit.
3. Suit Summon was issued to the Defendant. The Defendant has appeared in this case through its counsel on 25.09.2014. The Defendant has filed its Written Statement on 25.10.2014.
4. The Defendant in its Written Statement has denied all the allegations made by the Plaintiff in the Suit Plaint. Further contends that, the suit filed by the Plaintiff is not maintainable, as the reliefs sought for by the Plaintiff is in the nature of 'In personam', but the Plaintiff ought to have claim the relief of 'In rem'. So also, the suit filed by the Plaintiff is liable to be dismissed for non-joinder of necessary parties. Further the Plaintiff has not sought for any permission to maintain the above suit, 7 OS No.26256/2014 in a representative capacity. The present suit for bare injunction is not maintainable, as the Plaintiff is claiming right to access particularly inrespect of portion of the property belonging to several person who are not the parties to the suit. Further contends that, there is no cause of action to file the present suit.
Further contends that, 'Keerthi Gardenia', is the name of one of the projects of M/s Keerthi Estate Pvt. Ltd., a company incorporated under the Companies Act, having its office at Flat No.G-1, Keerthi Ornetta, C V Raman Nagar, Main Road, Nagaravaplaya, Bengaluru-560 093. The said company is representative by its Managing Director Mr. K Anil Kumar Reddy. The present suit is filed by in the name of M/s Keerthi Gardenia, it is neither an entity nor a person in law. Hence the suit is liable to be dismissed.
Further contends that, property in Sy No. 61/1 of Thubarahalli Village, measuring 4 Acres 08 Guntas absolutely belong to Mr. K Anil Kumar Reddy, who is the Managing Director of M/s Keerthi Estate Pvt. Ltd.,. The said company has developed the said property into Multi Storied Residential 8 OS No.26256/2014 Apartment Complex, in accordance with law. The construction of the said complex was commenced during the year 2011 and same has been completed. The Plaintiff, who is porpotated to be the owner of the property bearing Sy No. 58/1, which is situated towards the Northern side of the property belonging to it, had not raised little finger over four years either obstructing or objecting the usage of the road, situated on the northern side of its property. The road which is sought to be claimed by the Plaintiff as a Private Road, is a Public Road, duly recognized and approved by the BBMP. Initially the said Road was having the width of 19 feet, connecting the property of the Defendant from its northern side, to the Marathahalli- Varthur Main Road, which was a Public Road. Subsequently, the owners of the lands bearing Sy Nos.58/1, 58/2 and 58/3, 62, 63/2 of Thubarahalli village, which are situated adjacent to the said 19 feet width road, entered into a Registered Memorandum Of Agreement dtd.14.08.2007, wherein it was agreed to widen the said 19 feet road, into a road having the width of 40 feet. Accordingly, the properties forming part of said Sy Nos. was contributed to make the said road 9 OS No.26256/2014 measuring East to West: 40 feet and North to South:
576.08 feet plus 108 feet 3 inches. The Plaintiff was one of the party to the said Registered Memorandum Of Agreement dtd.14.08.2007. Further Mr. V Chandrashekar and T V Chandrashekar both sons Venkatappa Reddy being the owners of the lands bearing Sy Nos.58/1, 58/2, 58/3 who were also parties to the Registered Memorandum Of Agreement dtd.14.08.2007, further entered into a Memorandum Of Agreement dtd.10.03.2014, with it agreeing to provide an area of the land measuring East to West:
20 feet and North to South: 240 feet, out of the lands bearing Sy No. 58/1 and 58/2 of Thubarahalli Village, the boundaries of the said area are, to the East: by Sy No. 58/2; to the West: by 20 width road;
to the North; by 40 feet width Road; and to the South; by Sy No. 61, inorder to use the said area of land for widening of the Road, exclusively for its benefit, for the valuable consideration of Rs.50,00,000/-. By virtue of both the Memorandum Of Agreements dtd.14.08.2007 and 10.03.2014, the existing 19 feet Road was widen to 40 feet width Road, providing access to its property, to approach Marathahalli - Varthur Main Road. The school is in 10 OS No.26256/2014 existence even prior to purchase the above said area by it. The Plaintiff is not having any exclusive right, title and interest over the Suit Schedule Property and thereby he cannot prevent the usage of the same by the Defendant or any other person. The Road which is shown as the Suit Schedule Property by the Plaintiff is been used as a public access with the knowledge to the world at large, for several years. The Plaintiff has no right to seek the relief of Injunction against the Defendant inrespect of the said Road. Hence prayed to dismiss the suit of the Plaintiff.
5. On the basis of the pleadings and contentions of both the parties, my learned predecessor in Office, has framed following issues on 09.06.2016:
1. Whether the Plaintiff proves that Plaintiff being a owner and parties to the memorandum of agreement entered with the Plaintiff for using the suit schedule road are in lawful possession and enjoyment as on the date of suit?
2. Whether the Plaintiff proves that alleged interference of Defendant?11 OS No.26256/2014
3. Whether the Plaintiff proves that, he is entitled for relief of Permanent Injunction as prayed for?
4. What decree or order?
6. The Plaintiff has inorder to prove his case has got examined himself as PW1 and got marked 16-documents as Ex.P.1 to Ex.P16. PW.1 was cross examineed on behalf of the Defendant on 03.10.2018 and 27.11.2018. Ex.D1 was got marked on confrontation to PW.1.
The Defendant got examined its Authorized Signatory as DW.1 and got marked 18-documents as Ex.D2 to Ex.D19. DW.1 was cross examined on behalf of the Plaintiff on 24.06.2019, 06.08.2019, 21.09.2019, 24.02.2020 and 28.10.2021. Ex.P17, to Ex.P20 were got marked on confrontation to DW.1.
7. Heard the Arguments of the Learned Counsels for the Plaintiff and Defendant.
The Learned Counsel for the Defendant has placed his reliance on 6 decisions viz., a) AIR 1969 Cal 496; b) 2019 SCC Online SC 135; c) 2021 SCC 12 OS No.26256/2014 Online SC 674; d) 2012 SCC Online Kar 2679; e) ILR 2014 Kar 1311; and f) (2014) 10 SCC 473.
8. My findings on the above said Issues are as under:
Issue No.1 : In the Negative;
Issue No.2 : In the Negative;
Issue No.3 : In the Negative;
Issue No.4 : As per final order for the following :R E A S O N S:
9. ISSUE NO. 1:
The Plaintiff contends that, he is the owner of the Sy No. 58/1 of Thubarahalii Village, to an extent of an area measuring 2 Acres 10 Guntas and he has entered into an Registered Memorandum Of Agreement dtd.14.08.2007, with the adjacent land owners inorder to form a 40 feet Road and accordingly the members to the said Registered Memorandum Of Agreement dtd.14.08.2007 by departing their lands have formed 40 feet width Road which is having access to the Marathahalli- Varthur Main Road. It is specifically contended by the Plaintiff that, the 40 feet width Road formed under the Registered Memorandum Of Agreement 13 OS No.26256/2014 dtd.14.08.2007, is the exclusive property, belonging to the parties to the said Registered Memorandum Of Agreement dtd.14.08.2007. And the said Road is shown as the Suit Schedule Property in this suit. Further contends that, the Defendant or any other person, other than the parties to the Registered Memorandum Of Agreement dtd.14.08.2007, are not having any right to utilize the said 40 feet width Road- the Suit Schedule Property.
Percontra, the Defendant contends that, earlier there was 19 feet width Road, to approach its property situated in Sy No. 61/1 of Thubarahalli Village from the Marathahalli - Varthur Main Road. The adjacent owners of the said 19 feet width Road, by entering into an Registered Memorandum Of Agreement dtd.14.08.2007, got widened the said 19 feet Road to 40 feet width Road, by leaving their respective portions of the lands. The owners of Sy No. 58/1 and 58/2 of Thubarahalli Village who are also the parties to the Registered Memorandum Of Agreement dtd.14.08.2007, have entered into Registered Memorandum Of Agreement dtd.10.03.2014, with it and have agreed to give an area measuring East to West: 20 feet and North to 14 OS No.26256/2014 South: 240 feet in the said survey numbers, for the valuable consideration of Rs.50,00,000/-, to it. On getting the said area of land, it had utilized the said area for getting extended the 40 feet Road. Further specifically contends that, the said 40 feet Road is a Public Road having access to the public at large to approach the Marathahalli - Varthur Main Road. The said Road is recognized and approved by the BBMP.
10. Firstly, when the Plaintiff contends that, the 40 feet width Road- the Suit Schedule Property is the Private Road belonging to the parties to the Registered Memorandum Of Agreement dtd.14.08.2007, which is denied by the Defendant, then it is for the Plaintiff to prove the existence of the said fact, as per Sec.101 and 103 of Indian Evidence Act.
11. The Plaintiff has produced the certified copy of the Registered Memorandum Of Agreement dtd.14.08.2007 at Ex.P1. On careful perusal of the said document, more specifically at Page No.3, Para Nos.5 and 6, which reads as under:-
15 OS No.26256/2014"And whereas there is a perpendicular Road running from North to South: from Benglauru Varthur Road, which said Road after traversing the lands in Sy Nos.64, 65 and 66 of Thubarahalli Vilage, ultimately meets the lands belonging to the 1st 2nd and 3rd parties.
And whereas the said perpendicular Road has existing is only about 19 feet in width."
As per this it is seen that, already 19 feet width perpendicular Road was in existence prior to entering into the Registered Memorandum Of Agreement dtd.14.08.2007, which was traversing the lands bearing Sy No. 64, 65 and 66 of Thubaharahalli Village, touching the lands of the parties to the said Registered Memorandum Of Agreement dtd.14.08.2007.
12. Coming to the ocular evidence, on this point, more specifically;
a) cross examination of PW.1, at Page No.12, Para No.5, which reads as under:-
"It is true to suggest that Ex.P1 is a relinquishment deed executed by me alongwith Savitha Nagpal, Muniyappa Reddy, Chandra Reddy, Chandrashekar, T.V. Rajashekar and R.Guru Reddy. It is true to suggest that the persons named above are 16 OS No.26256/2014 the owners of adjoining property, to my property. It is true to suggest that in order to get widen the road, we have relinquish our respective area of land. Witness volunteers that it is done for our personal purpose. It is false to suggest that the said relinquishment deed is executed for our personal purpose. It is false to suggest that Keerthi Estate Pvt. Ltd., has relinquished its land in Sy.No. 61/1 for widening of the connecting road running North to South, connected to Varthur Bengaluru Main Road."
As per this evidence, Plaintiff/PW.1 admits that, Ex.P1 is a relinquishment deed executed by him alongwith Savitha Nagpal, Muniyappa Reddy, Chandra Reddy, Chandrashekar, T V Rajeshar and R Gurureddy, who are the owners of adjoining properties to his property, inorder to get widen the road. He contends that, it is done for their personal purpose.
b) cross examination of DW.1, at Page No.18, Para No.1, which reads as under:-
"It is true to suggest that defendant was not party to Ex.P1. I am aware about the terms and conditions stipulated in Ex.P1- Registered Memorandum of Agreement dt. 14.08.2007. It is true to suggest that Ex.P1 is the Memorandum of agreement entered into by the land owners to widen the road, which the approach road to Varthur - Bengaluru 17 OS No.26256/2014 Main Road, for their use. Witness volunteers that even there is mention about the use of the said road, to be made by the public atlarge."
As per this evidence, DW.1 admits that, Defendant is not the parties to the Ex.P1 -Registered Memorandum Of Agreement dtd.14.08.2007, but he is aware about the terms and conditions of the said document. Further affirms a suggestion made to him on behalf of the Plaintiff that, under the said document the land owners have got widen the road which is the approach road to Varthur - Bengaluru Main Road, for their use. Further he contends that, there is mention about use of the said Road to be made by the public at large.
c) cross examination of DW.1, at Page No.10, Para No.4, which reads as under:-
"I have produced Ex.D3-Certified Copy of memorandum of understanding inbetween the adjacent land owners of the road running from Varthur Main Road to VIBGOYR school. As per Ex.D3 the said existing road measuring 19 feet was widened to 40 feet, for public use. Defendant Company is not the party to Ex.D3. All adjacent land owners of the road running from Varthur Main Road to VIBGOYR school, were intending to widened the said road from 19 feet to 40 feet. It is true to suggest that all the said adjacent land 18 OS No.26256/2014 owners, widened the said road from 19 feet to 40 feet."
As per this evidence, DW.1 contends that, he has produced certified copy of the Registered Memorandum Of Agreement dtd.14.08.2007, at Ex.D3, as per the said document there is mention about the existence of 19 feet width Raod, which was widen to 40 feet width Raod, for public use. The Defendant company was not the party to the said document, but all the adjacent land owners of the Road running from Varthur Road, VIBGOYR School where the parties to the said document, who had entered into an agreement intending to widen the 19 feet Road to 40 feet road.
13. The Learned Counsel for the Defendant would contend that, the Defendant has purchased an area of land measuring East to West: 40 feet and North to South: 240 feet, out of Sy No. 58/1 and 58/2 for the valuable consideration of Rs.50,00,000/- from their owners, under the Registered Memorandum Of Agreement dtd.10.03.2014.
19 OS No.26256/201413.01. The Defendant has produced the original Original Memorandum Of Agreement dtd.10.03.2014 at Ex.D9.
As per this document, more specifically
a) at Page No.2, Para No.4 which reads as under:-
"And Whereas by a Memorandum of Agreement dtd.14.08.2007 registered as Document No.BGN(U) VRT-1-02535 of 2007-08 stored in CD VRTD9 in the office of the Sub Registrar, Varthur, between Mrs. Savitha Nagpal (M/s Vaswani Developers) and Mr. M Muniyappa Reddy, M Chnadra Reddy, Mr. Muni Reddy, Mr. R Guru Reddy and the members of the FIRST PARTY had mutually relinquished certain extent of their lands for the purpose of widening of the road from the earlier existing 19 feet to 40 feet connecting from Bangalore to Varthur Main Road to their respective properties."
As per these recitals there is mention of existence of the Registered Memorandum Of Agreement dtd.14.08.2007, inbetween the party No.1 of the said document and the other adjacent land owners, including the present Plaintiff.
20 OS No.26256/2014b) at Page No.3, Para Nos.2 and 3, which reads as under:-
"And Whereas considering the usage of the said land in future, the FIRST PARTY has agreed to further contribute, release and relinquish their portion of the property for extending the road up to the property of the SECOND PARTY. Thus by virtue of the FIRST PARTY, relinquishment the existing 40 feet road will be extended up to North Eastern boundary of the property of the SECOND PARTY. A sketch morefully and particularly describing the 40 feet widen road created as per by the terms of the aforesaid Memorandum of Agreement dtd.14.08.2007 and which is now extended up to the north Eastern boundary of the property of the SECOND PARTY is morefully and particularly delineated and marked in a sketch which shall form part of this agreement.
And Whereas The members of the FIRST PARTY agreed to release, relinquish their portion of the property for the purpose of widening of the road, the SECOND PARTY has paid an aggregate sum of Rs.50,00,000/- (Rupees Fifty Lakhs Only) in the following manner."
As per this recital, the party No.1 i.e., Mr. V Chandrashekar and Mr. T V Rajashekar have agreed to depart area of the land bearing Sy No. 58/1 and 58/2, which is morefully described as schedule under the said document to Mr. K Anil Kumar Reddy for the valuable consideration of Rs.50,00,000/- and 21 OS No.26256/2014 accordingly on receiving the said consideration have departed the said area- shown as the Schedule under the said document.
13.02. As per the recitals found under Ex.D9, it is seen that, the 1 st party who has departed the Scheduled property to the Managing Director of the Defendant, are shown as 2nd party at Sl Nos.4 and 5 under Ex.P1 = Ex.D3. Further the Managing Director of the Defendant has acquired the Scheduled property, for formation of the Road, inorder to have access to the Varthur- Bengluru Main Road, on getting widened the existing road.
14. The Learned Counsel for the Defendant would contend that, the Managing Director of the Defendant on acquiring the area in Sy No. 58/1 and 58/2 of Thubarahalli Village, Registered Memorandum Of Agreement dtd.14.08.2007-Ex.D9, has relinquished the said acquired land to the BBMP authorities, by executing Relinquishment deed dtd.31.08.2015.
22 OS No.26256/201414.01. The Defendant has produced the certified copy of the relinquishment deed at Ex.D11. As per this document, it is seen that, Mr. Anil Kumar Reddy has relinquished the scheduled of property shown under the said document to the BBMP authorities for formation of Road, free of cost.
14.02. Coming to the ocular evidence, on this point, more specifically, cross examination of DW.1 at Page No.25, Para No.2, which reads as under:-
"Since, the Commissioner of BBMP had requested to execute the Relinquishment Deed - Ex.D.11, so our Firm has executed the same. The said Relinquishment Deed - Ex.D.11 was executed by our Firm in order to get widened the Road to get extended the Road in front of our project. It is false to suggest that, till execution of Relinquishment Deed - Ex.D.11, the Road was not having the width of 40 feet."
As per this evidence, DW.1 contends that, as per the request of the Commissioner of BBMP Mr. Anil Kumar Reddy has relinquished the portion of the land, under Ex.D11, inorder to get widen the Road, by getting extended the Road in front of their project. Further denies the suggestion made to him on behalf 23 OS No.26256/2014 of the Plaintiff that, till execution of Relinquishment Deed-Ex.D11, the Road was not having the width of 40 feet.
b) cross examination of DW.1, at Page No.27, Para No.2 and 3, which reads as under:-
"Keerthi Estate Pvt. Ltd., had not given any letter to the BBMP authorities in the form of requisition for surrendering of the land for widening of the Road to the extent of 40 feet. Witness volunteers that, Keerthi Estate Pvt. Ltd., has surrendered its land at the instance of the BBMP authorities.
It is false to suggest that, as mentioned in Page No.2, Para No.1 of Ex.D.11 - Relinquishment Deed dtd:
31.08.2015, we have issued a letter to the BBMP authorities requesting for widening of the Road, as earlier to it there was no road of the width of 40 feet."
As per this evidence DW.1 contends that, Keerthi Estate Pvt Ltd., has not given any letter to the BBMP authorities, in the form of requisition for surrender of land, for widening the Road to the extent of 40 feet. But he contends that, Keerthi Estate Pvt., Ltd., has surrendered its land at the instance of BBMP authorities. Further denies the suggestion made to him on behalf of the Plaintiff that, there is mention in Page No.2 Para No.1 of the 24 OS No.26256/2014 Ex.D1- Relinquishment Deed dtd.31.05.2015 for having issued a letter to the BBMP authorities requesting for widening of the Road, as earlier to it there was no Road, having the width of 40 feet.
15. The Learned Counsel of the Defendant would contend that, the BBMP authorities has issued a notification for acquiring the adjacent lands for widening and formation of 15 Mtrs width Road from Old Airport Road to Thubarahalli Extension Road via VIBGYOR School.
15.01. The Defendant has produced the publication of the said notification issued byt eh BBMP authorities in the Indian Express dtd.29.11.2019 at Ex.D13. As per this document, it is seen that, BBMP authorities have notified acquisition of the lands adjoining the existing Road, for widening and formation of 15 Mtrs width Road from Old Airport Road to Thubarahalli Extension Road via VIBGYOR School. Further under Schedule E there is mention of the lands bearing Sy No. 58/1, 58/2 and 61/1 and 61/2, the portions of which are acquired for widening of the said Road.
25 OS No.26256/201416. The Learned Counsel for the Defendant would contend that, on relinquishment of the portion of the land and on acquisition of the BBMP authorities the said Road and formed and managed by BBMP authorities. And now the said road is Tar Road.
16.01. Coming to the ocular evidence, more specifically,
a) cross examination of PW.1, at Page No.12, Para No.2, which reads as under:-
"It is true to suggest that the Tar Road, seen in Ex.D1 was earlier 19 ft width road, now the width of the said road is extended to 40 fts. It is false to suggest that on either side of the said road, developments have taken place. The said road is managed and maintained by BBMP authorities."
As per this evidence, the Plaintiff /PW.1 admits that, Tar Road seen Ex.D1 (positive photograph confronted to PW.1, the same is admitted), was earlier 19 feet width Road, now the width of the said Road is extended to 40 feet. But he denies that, developments have been taken place, on either side of the said Road. Further he contends that, the said 26 OS No.26256/2014 Road is managed and maintained by the BBMP authorities.
As per this ocular evidence of the Plaintiff, in the form of admissions, three things can be cult out.
i) earlier the Road was 19 feet width, the same is widened to 40 feet width;
ii) the said widened Road is a Tar Road; and
ii) the said Road is managed and maintained by the BBMP authorities.
b) cross examination of DW.1, at Page No.14, Para No.2, which reads as under:-
"A black top tar road is laid by the BBMP authorities on the road running from Varthur Main Road to VIBGOYR school, at the request of the VIBGOYR School."
As per this evidence, DW.1 contends that, a black Tar Road is led by the BBMP authorities on the Road running from Varthur Road to VIBGOYR School at the request of the VIBGOYR school.
17. Thus on the basis of the above referred documentary and oral evidence, it is clear that, earlier the Road was having the width of 19 feet, 27 OS No.26256/2014 which was widened, with the help and support of the adjoining land owners who have relinquished the portion of their lands, as can be seen under the Registered Memorandum of Agreement dtd.14.08.2007-Ex.P1 =Ex.D3; Registered Memorandum of Agreement dtd.10.03.2014-Ex.D9; and Registered Relinquishment Deed dtd.31.08.2015-Ex.D11. On relinquishing the said portions of land the BBMP authorities have processed acquisition proceedings by issuing necessary Notification, as can be seen in Ex.D13, publication in the Indian Express Newspaper. Further as per the admissions of the Plaintiff, referred to in Para No.15.01 supra, wherein he has admitted that,
i) earlier the Road was 19 feet width, the same is widened to 40 feet width;
ii) the said widened Road is a Tar Road; and
ii) the said Road is managed and maintained by the BBMP authorities.
18. So it can be concluded that, the 19 feet width Road, earlier to its widening, or subsequent to its widening to the extent of 40 feet Road, is a public Road, which is formed and maintained by the BBMP 28 OS No.26256/2014 authorities. And it is not a Private Road, exclusively for the use and occupation of the parties to the Registered Memorandum of Agreement dtd.14.08.2007-Ex.P1=Ex.D3, as contended by the Plaintiff.
19. Further the Learned Counsel for the Defendant would contend that, as per the master plan existence of the said Road is shown, as a public Road, as per the CDP plan.
The Learned Counsel for the Defendant has produced the revised Master Plan 2015 and the Master Plan. On perusal of the said documents, it is seen that, the access Road joining towards the Marathahalli - Varthur Main Road, is show to be in existence.
Further the Learned Counsel for the Defendant would contend that, when the Master Plan indicated the existence of the Road,then such Road cannot be termed, as a Private Road, as claimed by the Plaintiff. He has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Shoba Developers Ltd., V/s BBMP and 29 OS No.26256/2014 Ors, reported in 2012 SCC Online Kar 2679, wherein it is observed in Para No.21, as under:-
"21. As rightly contended by the Counsel for the petitioner, once the Master Plan is prepared indicating the existence of roads, drains, streets etc., and particularly the Planning Authority at an undisputed point of time had prepared a sketch of the lands wherein no such passage of Nala in the middle of the property or the existence of pathway therein was shown, it is not open for the Corporation at such a belated stage to raise an objection solely based on the village map to contend that the existing Nala was deviated by the petitioner. It is to be noticed that the draft of the Master Plan would be published and sent to the Government enclosing the report of the survey conducted and after taking into consideration all the relevant aspects, the Master Plan submitted by the Planning Authority viz., BDA for approval and the same is approved. The BBMP, at no stage had raised any objection nor is there anything to show that anybody had raised any objection to the contents of the revised Master Plan when the objections were called for. The Revised Master Plan 2015 has come into effect on 25.06.2007 The Master Plan contains showing of lands, street pattern, areas reserved for parks, playgrounds and other civic amenities or for public purpose as also areas of special control and development. In such circumstances the objection raised by the Corporation at the stage of grant of underground cable connection to the occupants of the premises is wholly unjustified. Section 505 of the 30 OS No.26256/2014 Karnataka Municipal Corporations Act. 1976, makes it clear that exercise of powers by the Corporation shall be in conformity with the provisions of the Karnataka Town and Country Planning Act, 1961, with regard to any matter relating to land use or development as defined in the explanation to Section 14."
Applying the above said principles of law to the instant case at hand, it is seen that, the Master Plan 2015 indicates existence of the Road - the Suit Schedule Property, then under such circumstances, the said Road cannot be termed as a Private Road, as claimed by the Plaintiff, but it is a Public Road to be used by the public at large. Ownership and exclusive possession of any private party cannot be attached to such properties, muchtheless the Road indicated under the Master Plan.
20. Further the Learned Counsel for the Defendant would contend that, merely on the basis of the Registered Memorandum of Agreement dtd.14.08.2007-Ex.P1=Ex.D3, the possession of the Plaintiff cannot be inferred, or in other words he would contend that, inferrences withregard to the possession of the Plaintiff cannot be drawn. He has placed his reliance on the decision of the Hon'ble 31 OS No.26256/2014 Apex Court, in the case of Balakrishna Dattaraya Galande V/s Balakrishna Rambharose Gupta and Anr, reported 2019 SCC Online SC 135, wherein it is observed in Para No.12, as under:-
"12. The first respondent-plaintiff has filed the suit under Section 38 of the Specific Relief Act seeking permanent injunction on the ground that he is in actual possession of the suit property. Grant of permanent injunction results in restraining the defendant's legitimate right to use the property as his own property. Under Section 38 of the Specific Relief Act, an injunction restraining the defendant from disturbing possession may not be granted in favour of the plaintiff unless he proves that he was in actual possession of the suit property on the date of filing of the suit. The earlier suit RCS No.1004/1988 was filed in the year 1988 and it proceeded till 1991. In the present case, the first respondent-plaintiff has to prove his actual possession on the date of filing of suit. The First Appellate Court concluded that the appellant-defendant had failed to prove that the plaintiff has vacated the premises in 1991 after withdrawal of earlier suit RCS No.1004/1988. Contention of the appellant is that a settlement was arrived at between the parties and pursuant to that settlement, the plaintiff has vacated the premises in 1991. This has not been rebutted by the first respondent- plaintiff by adducing substantive evidence. The possession of the plaintiff cannot be based upon the inferences;32 OS No.26256/2014
drawn from circumstances. The plaintiff has to prove actual possession for grant of permanent injunction."
21. Applying the above said preposition of the law, to the instant case at hand, in the instance at hand it is to be seen that, whether the Plaintiff is in actual possession or lawful possession of the Suit Schedule Property -the Road.
22. When the Plaintiff himself has admitted that, the said Road is a Tar Road Managed and Maintained by the BBMP authorities, which is widened to the extent of 40 feet, from its original width of 19 feet, then Under such circumstances, the said Road - the Suit Schedule Property, firstly cannot be termed as a Private Road, so as to restrict the use and occupation of it, by the Public at large; secondly, the Plaintiff will not have the exclusive possession of the Suit Schedule Property - the Road, as contended by him.
23. Thus, the Plaintiff has failed to prove that, either he or the parties to the Registered Memorandum of Agreement dtd.14.08.2007- 33 OS No.26256/2014 Ex.P1=Ex.D3, are in lawful possession and enjoyment of the Road- the Suit Schedule Property, to the exclusion of the public at large, including the Defendant.
Hence, I am constrained to answer ISSUE NO.1 IN THE NEGATIVE.
24. ISSUE NO.2:-
The Plaintiff in Para No.12 of the Suit Plaint contends that, the Defendant, its henchmen and workers came near the Suit Schedule Property on 18.08.2014 and attempted to pass through the Private Road- the Suit Schedule Property.
24.01. Firstly, the Plaintiff contends that, the Suit Schedule Property is a Private Road, which he has failed to prove it. Secondly, he contends that, he and the other parties to the Memorandum of Agreement of dtd.14.08.2007, are in exclusive possession and enjoyment of the Suit Schedule Property, which he has again failed to prove the said fact. Thirdly, the Plaintiff himself admits that, the Suit Schedule Property is a Tar Road and managed 34 OS No.26256/2014 and maintained by the BBMP. Since it is so, it cannot termed as a Private Road.
24.02. Apprehension of injury or belief on the part of the Plaintiff must be such that, when coupled with the Intention of the Defendant to do certain act, shall harm the Plaintiff. Such apprehension and act on the part of the Defendant, will amount to interference, by the Defendant.
Since the act apprehended by the Plaintiff and intended by the Defendant, must be such that, if completed, give a ground for action, then there will be a foundation for the exercise of jurisdiction. Thus it amounts to interference.
24.03. Applying the said preposition of law to the instance case at hand, I am of the firm opinion that Plaintiff has failed to prove that, there exists a prospect or apprehension and/or belief, coupled with intention of the Defendant to create hurdles in the so called rights of the Plaintiff over the Suit Schedule Property, in the given set of facts, so as to believe that, if completed, will give rise to a cause of inflicting injury or receiving injury, to the Plaintiff, for its 35 OS No.26256/2014 alleged attempt of enjoyment of the Suit Schedule Property.
Hence it will not amount to interference. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka reported in ILR 1978 Page 1560; in the case of Gopal M Hegde & Ors Vs U F M Narasimha Ganap Bhat & Ors, wherein it is held that, "when the Plaintiff proves the intention on the part of the defendants, to do an act or existence of the act, which in the opinion of the Court, if completed, give ground of action, there is foundation for the exercise of jurisdiction".
Thus, for the above said reasons, I answer ISSUE NO.2 IN THE NEGATIVE.
25. ISSUE NO. 3:
25.01. Firstly, the Defendant would contend that, the present suit is not maintainable, as the Defendant is not a person in the eye of law and the relief Injunction which is a right in personam cannot be granted against it.36 OS No.26256/2014
25.02. The Learned Counsel for the Defendant would contend that, the Defendant will not come within the ambit of Or. XXX Rule 1 of CPC, so the suit of the Plaintiff is not maintainable against the Defendant. He has placed his reliance on the decision of the Hon'ble High Court of Calcutta, in the case of Modi Vansapathi Manufacturing Company and Anr., V/s Katihar Jute Mills (Pvt) Ltd., reported in 1968 SCC Online Cal 57, wherein it is held in Para Nos.68 and 69, as under:-
"68. In the view I have taken, I must hold that the expression 'person' in Order 30 Rule 10 does not include a Company because such a construction will be alien and repugnant to the context and to the subject- matter of Order 30 and to the scheme of the Civil Procedure Code. It is a construction which is neither supported by principles nor by precedents.
69. In my judgment, a company cannot be sued in a name other than its own which it assumes for the purpose of carrying on business. It can only be sued in its corporate name."
25.03. Coming to the documentary evidence on record, more specifically, the Written Statement filed by the Defendant, wherein the Managing Director of Keerthi Estate Pvt., Ltd., has verified the 37 OS No.26256/2014 contents of the said Written Statement and has contended in Para No.4 of the Written Statement that, Keerthi Gardenia is the name of one of the projects, undertaken by Keerthi Estate Pvt., Ltd., 25.04. Coming to the ocular evidence, on this point,
a) cross examination of PW.1, at Page No.9, Para No.1,which reads as under:-
"It is false to suggest that defendant No.1 is neither a living person nor a juristic person. Witness volunteers that it is a construction firm. It may be true to suggest that Keerthi Gardenia is a Construction Apartment Project under taken by Keerthi Estate Pvt.Ltd."
As per this evidence, it is suggested to the Plaintiff /PW.1 that, Defendant No.1 is neither leaving person nor a Juristic person. But PW.1 contends that, it is a construction firm. PW.1 admits that, Keerthi Gardenia is a construction project undertaken by Keerthi Estate Pvt., Ltd., 38 OS No.26256/2014
b) cross examination of DW.1, at Page No.9, Para No.1,which reads as under:-
"Defendant is a private limited company. The said company is doing real estate business. One Anil Kumar Reddy is the Managing Director of the Defendant Company. Defendant company has taken up the construction of a residential apartments under the name and style of the project as "Keerthi Gardenia". Defendant company has not taken up any other project, with the same name "Keerthi Gardenia"
As per this evidence,DW.1 contends that, Defendant is private Ltd. Company doing a real estate business. Anil Kumar Reddy is Managing Director of the Defendant Company. The said company has taken up the construction of residential apartments, under project name Keerthi Gardenia.
c) cross examination of DW.1, at Page No.24, Para No.2,which reads as under:-
"Written statement filed in this suit is signed by the Managing Director representing Keerthi Estates Private Ltd., I do not know whether we have pleaded in our Written Statement that, all the flats have been sold prior to 39 OS No.26256/2014 receipt of the Suit Summons in this suit."
As per this evidence, DW.1 contends that, Written Statement filed in this suit is signed by the Managing Director representing Keethi Estate Pvt., Ltd., 25.05. On the basis the material on record, more specifically the contents of the Written Statement and its verification, referred to supra, as well as the ocular evidence referred to supra, it can be concluded that, the Plaintiff has described the project name alongwith its representing entity i.e., Keerthi Estate Pvt., Ltd., Since Keerthi Estate Pvt. Ltd., is a Private Company represented by its Managing Director who has verified the contents of the Written Statement and who has authorized DW.1 to represent it in this case, under such circumstances, it cannot be firstly said that, Defendant is not a juristic person; and secondly it cannot be said that, the relief of Injunction, in the form of relief of in personam cannot be claimed against the Defendant - Keerthi Gardenia, which is 40 OS No.26256/2014 project undertaken by the Keerthi Estate Pvt. Ltd., who has been represented by its Managing Director.
26. Secondly, the Defendant contends that, suit of the Plaintiff is bad for non joinder of necessary parties.
26.01. The Learned Counsel for the Defendant would contend that, though the Plaintiff has contended that, he alongwith the other parties to the Registered Memorandum of Agreement dtd.14.08.2007, has got widened the Road- the Suit Schedule Property and they are in exclusive use of the said Road, excluding the public at large including the Defendant, then the Plaintiff ought to have made the other parties to the Registered Memorandum of Agreement dtd.14.08.2007, as parties to this suit. This line of contention can be seen in the ocular evidence, more specifically, cross examination of PW.1, at Page No.13, Para No.3, which reads as under:-
"The other executants of Ex.P1 are not made party to this suit."
26.02. Looking to the contentions of the Plaintiff in Para No.2 of the Suit Plaint, where he 41 OS No.26256/2014 contends that, he is the absolute owner of the land bearing Sy No. 58/1, to the extent of 2 Acres 10 Guntas situate at Thubarahalli Village; he alongwith the other adjoining owners of his property have entered into a Registered Memorandum of Agreement dtd.14.08.2007, for widening of the Road- the Suit Schedule Property.
26.03. When the Plaintiff contends that, he is in exclusive possession of the Suit Schedule Property alongwith others; and when he pleads that, there is interference by the Defendants in his enjoyment of the Suit Schedule Property, then under such circumstances, in a suit for Permanent Injunction , there is no need to implead the other parties to Registered Memorandum of Agreement dtd.14.08.2007, as contended by the Defendant.
Thus the suit filed by the Plaintiff for the relief of Permanent Injunction cannot be termed, as non joinder of the necessary parties, as contended by the Defendant.
42 OS No.26256/201427. Thirdly, the Defendant contends that, the Plaintiff has not obtained the permission for filing this suit, which is in a representative capacity.
27.01. A permission is to be sought for by the person/s, for suing or to be suit in the representative capacity, from the Courts of law U/Or. I Rule 8 of CPC.
27.02. Again at the cost of repeatation, when the Plaintiff has contended in the Suit Plaint that, he is claiming the relief for himself alone and not in the representative capacity, then he need not seek the sanction or permission, as required U/Or I Rule 8 of CPC, as contended by the Defendant.
28. The fourth contention taken up by the Defendant that, the Suit Schedule Property is not identifiable.
The Learned Counsel for the Defendant would contend that, when the property is not identifiable, injunction cannot be granted. He has placed his reliance, on the decision of the Hon'ble High Court of Karnataka, in the case of Smt. Sumithra Bai 43 OS No.26256/2014 V/s P. Siddesh and Anr, reported ILR 2004 Kar 1311, where it is observed in Para No.18, as under:-
"18. On perusal of the above said documents, one cannot definitely come to the conclusion where exactly this site No.56/1-B claimed by the plaintiff is situated. Whether it is situated in the sites carved out in survey No.75/1 or it is a separate site belonging to the Manakaturu Mandal Panchayath situated some where else. No document is produced before the court either by the plaintiff or by the defendants to show that site No.56 is subsequently divided into site Nos.56/1-A, 1- B and 1-C. Even Ex.P-6 - sketch produced by the plaintiff does not establish this particular fact. Even defendants document does not disclose that in what manner, under which document, site No.56 is divided into or modified as site numbers 56/1-A, 1-B and 1- C. The measurements of these sites are also very important, but that has lost sight of by both the courts below. As per the measurements in Ex.D-14 Layout plan produced by the defendant, the measurement of site No.56 is shown as 40 x 30 feet. It is seen from Ex.D-4, the sale deed executed in favour of defendant No.1 in respect of site No.56/1-C by the previous vendor also measures East to west 40' and North to South 30'. The site No.56/1-B as claimed by the plaintiff granted by the Mandal Panchayath also measures East to West 40' and North to South 30'. No measurement available so far as site No.56/1-A is concerned. When site No.56 under Ex.D-14 measures only 40' x 30', how it can be divided into 3 parts measuring to the same extent of 40' x 30' and that can 44 OS No.26256/2014 be sold in favour of first defendant by its vendor or site No 56/1-B could be granted by the Mandal Panchayath in favour of the plaintiff. The above said discrepancies have not been clarified either by the plaintiff or by the defendants before the courts below. The Hakkupatra Ex.P.1 does not disclose the survey number in which the site has been carved out. Though the plaintiff is not specific about his site is situated in survey No.75/1, but ambiguously claims that the said property belongs to him only on the basis of the Hakkupatra. The boundaries mentioned in Hakkupatra, actually similar with site No.56/1-B carved out in survey No.75/1. According to the defendant, this property has been sold by the vendor of the defendant No.1 in favour of one Smt.Jayamma and she is in possession of the said site. Unless, the plaintiff satisfactorily by means of convincing evidence shows to the court that this particular site No.56/1-B is carved out of survey No.75/1 and the same either earlier belonged to or has been acquired by the Mandal Panchayath and thereafter, the said site has been allotted to the plaintiff. In the absence of such proof the court cannot draw any inference that the plaintiff has proved his title and possession over the said suit schedule property. The identity of the property with specific boundaries and the place where this particular site is situated itself is not satisfactorily established by the plaintiff. Therefore, the decree ought not to have been granted by the first Appellate Court. Neither the first Appellate Court nor the Trial Court have in fact meticulously gone into the fact that the plaintiff or the defendant 45 OS No.26256/2014 have not shown how this site No.56 had been divided into 56/1-A, 1-B and 1-C with specific measurements."
28.01. Looking to the documents produced by the Defendant, more specifically, certified copy of the Registered Memorandum of Agreement dtd.14.08.2007 at Ex.D3; Original Registered Memorandum of Agreement dtd.10.03.2014 at Ex.D9; certified copy of the Relinquishment Deed dtd.31.08.2015 at Ex.D11; Publication of Acquisition Notification issued by the BBMP at Ex.D13; and on perusal of the ocular evidence, in the form of cross examination to PW.1, wherein the Defendant has got confronted a positive photograph at Ex.D1, and leading of the ocular evidence through DW.1, will clearly go to show that, the Defendant has identified the Suit Schedule Property.
When such is the case, the Defendant cannot contend that, the Suit Schedule Property is not identifiable.
In the above referred case, on behalf of the Defendant, it is seen that, the Plaintiff has failed to establish the identity of the Suit Schedule Property, but that is not so in the present case.
46 OS No.26256/201429. The fifth contention taken up by the Defendant that, when the Defendant has denied the ownership of the Plaintiff over the Suit Schedule Property, then bare suit for injunction is not maintainable. The Learned Counsel for the Defendant has placed his reliance on the decision of the Hon'ble Apex Court, in the case of T V Ramakrishna Reddy V/s M Malappa, reported in 2021 SCC Online SC 674, wherein it is observed in Para Nos.10, 15 and 18, as under:-
"10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiff's title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
15. It could thus clearly be seen that this is not a case where the plaintiff- appellant can be said to have a clear title over the suit property or that there is no cloud on plaintiff-appellant's title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of fact and law are decided.47 OS No.26256/2014
18. It could thus be clearly seen that the High Court in the said order has clearly noted that the parties are in litigation before the Civil Court and that adjudication of controversy regarding the title of the suit property could be done only by the Civil Court. The entry with the Corporation is nothing more than a fiscal entry relevant only for the purpose of payment of taxes and does not by itself create or extinguish title to the property. The Court observed that till such time the competent Court declared the third respondent therein as the true owner of the property, the Corporation could not on its own correct the entry after a period of 3 years stipulated under Section 114- A of the Act. The High Court has therefore set aside the order reserving liberty for the parties to have the matter adjudicated upon by the Civil Court."
29.01. On the basis of the pleadings taken up by the Plaintiff that, he is in possession of the Suit Schedule Property and the Defendant is trying to interfere with his possession over the Suit Schedule Property; and when the Plaintiff has claimed the relief of Permanent Injunction, then under such circumstances, the Plaintiff can maintain a suit for Permanent Injunction, though clouds have been raised upon his title, without placing cogent materials. I find force to my above view, as per the 48 OS No.26256/2014 decision of the Hon'ble Apex Court in the case of Anathulla Sudhakar V/s P. Buchi Reddy (dead) and others reported in AIR 2008 SCC 2033, wherein it is held that, "Suit for injunction simplicitor is maintainable, when there is interference in the peaceful enjoyment and possession of the Plaintiff and when clouds of title have not been raised in other words, title of the Plaintiff is not challenged, with cogent evidence".
29.02. Further there is reference of the decision of the Hon'ble Apex Court, in the case of Jarkhand State Housing Board Vs/ Didar Singh, reported in (2019) 17 SCC 692, in the decision relied by the Learned Counsel for the Defendant, reported in 2021 SCC Online SC 674, wherein the same can be found at Para No.20, as under:-
"It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud 49 OS No.26256/2014 over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."
29.03. Thus, looking to the pleadings of the Plaintiff; the relief sought for by the Plaintiff in this suit; though the clouds have been raised by the Defendant inrespect of the Suit Schedule Property, but the Defendant has not placed a genuine dispute is not raised by Plaintiff withregard to title of the Plaintiff by placing cogent evidence, then under such circumstances, bare suit for injunction is maintainable.
30. The sixth contention taken up by the Learned Counsel for the Defendant that, the photographs produced by the Plaintiff at Ex.P2 to Ex.P14, have not been accompanied with the certificate as U/Sec.65(b) of Evidence Act. Thus he would contend that, no reliance can be placed on the said positive photographs. He has placed his reliance on the decision of the Hon'ble Apex Court, in the case of Anvar P V V/s P K Basheer and Ors., 50 OS No.26256/2014 reported in (2014) 10 SCC 473, wherein it is observed in Para No.14 to 18, as under:-
"Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;51 OS No.26256/2014
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official 52 OS No.26256/2014 position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India."
53 OS No.26256/201430.01. Adverting to the facts of the present case, the Defendant has got confronted a positive photographs to the Plaintiff which is marked at Ex.D1. No any reliance is placed on the photographs produced by the Plaintiff at Ex.P2 to Ex.P14.
Hence, the Arguments placed by the Learned Counsel for the Defendant, is answered accordingly.
31. Lastly, considering the failure on the part of the Plaintiff to prove that,
a) the Suit Schedule Property - Road is a Private Road;
b) his possession over the Suit Schedule Property; and
c) the alleged interference of the Defendant over the Suit Schedule Property, then under such circumstances, the Plaintiff is not entitle for the relief of Permanent Injunction, as claimed by him.
Hence, I answer ISSUE NO.3 IN THE
NEGATIVE.
54 OS No.26256/2014
32. ISSUE No.4:-
For having answered Issue Nos.1 to 3 in the Negative. Hence, I proceed to pass the following:
ORDER Suit of the Plaintiff is hereby Dismissed.
Looking to the peculiar facts and circumstances of the case, both the parties are directed to bear their respective costs.
Draw decree accordingly.
----
(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 17th day of January, 2022) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 55 OS No.26256/2014 SCHEDULE The existing road running from North to South ans bifurcating the lands in Sy. No.62, 63/2 and 581/, 58/2 and 58/3 to be widened from out of lands in Sy Nos.58/1, 58/2 and 58/3, 62 and 63/2, of Thubarahalli Village, Varthur Hobli, Bangalore East Taluk, so as to measure East to West 40 feet and North to South: 576.08 feet plus 104 feet 3 inches from East to 40 feet, from North to South, bounded as follows:
East by: Land bearing Sy No.58/1, 58/2 and 58/3/ existing school building. West by: Land in Sy No.62 and 63/2. North by: Land in Sy No.65/3.
South by: Land in Sy No.58/1 and 62 part.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 56 OS No.26256/2014 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF: PW.1: Sri. M. Munireddy.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF: Ex.P1: Memorandum of Agreement dtd.14.08.2007. Ex.P2 to Ex.P15: 13 positive photographs. Ex.P16: One broacher.
Ex.P17 & 18: Positive photographs. Ex.P19: Approved building construction plan. Ex.P20: Copy of the second sanction plan.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS: DW.1: Sri. B Ram Bhoopal Reddy.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS: Ex.D1: Positive photograph.
Ex.D2: Extract from the minutes book. Ex.D3: Certified copy of the Memorandum of Agreement dtd.14.08.2011.
Ex.D4: Commencement certificate issued by the BBMP Authority dtd.24.10.2011. Ex.D5: Office copy of letter dtd.02.10.2015. Ex.D6 to Ex.D8: Two positive photographs and CD. Ex.D9: Memorandum of Agreement dtd.10.03.2014. Ex.D10: Certified copy of the Write Petition bearing No.23090/2017.
Ex.D11: Certified copy of the Relinquishment Deed dtd.31.08.2015.
Ex.D12: Endorsement dtd.14.11.2017. Ex.D13: Notification published in the English daily Newspaper "Indian Express" on 29.11.2019. Ex.D14 to 19: 4 positive photographs with one CD & photo receipt.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)