Bangalore District Court
Sree Guru Shaneshwara Swamy vs The Bangalore Development Authority on 9 October, 2015
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 9th day of October 2015.
O.S.No.8924/2010
PLAINTIFF : Sree Guru Shaneshwara Swamy
Mahakshetra Temple, No.4/1 and 4/2,
Carved out in Sy. No.3, formerly
Gavipuram Village, Kasaba Hobli,
Bangalore North Taluk.
Now Kempabuddi Tank
Kempegowda Nagara, Bangalore.
Rep. by its Archaka H.V.Swamy
(By Sri.G.R.A., Advocate)
V/s.
DEFENDANTS : The Bangalore Development Authority,
T.Chowdaiah Road
Bangalore-560 020.
By its Commissioner.
(Ex-parte)
Date of Institution of the 20.12.2010
Suit:
Nature of the suit Permanent injunction
(Suit on Pronote, suit for
declaration & possession,
suit for injunction)
Date of commencement of 17.10.2014
recording of evidence:
2 O.S.No.8924/2010
Date on which the 09.10.2015
Judgment was
pronounced:
Total Duration: Year/s Month/s Day/s
00 11 22
JUDGMENT
The plaintiff has filed this suit for permanent injunction restraining the defendant or any one acting on behalf of the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property and for costs of the suit and to pass such other relief's.
2. The suit schedule property is described in the plaint as under:-
SCHEDULE All that piece and parcel of the property bearing corporation khatha No.4/1 and 4/2 carved out in Sy. No.3 formerly Gavipuram village, Kasaba Hobli, Bangalore North Taluk, now Kempammabudi Tank, Kempegowda Nagar, Bangalore measuring 2 acres surrounded by compound and bounded on the 3 O.S.No.8924/2010 East by : Road formed by BDA and remaining portion of Sy. No.3 formerly belonging to Gosai Mutt;
West by : Road formed by BDA sites
allotted BDA and
Kempammabudi Tank Bed
North by : Road formed by BDA, Slum
and Kempammabudi Tank
Bed,
South by : Conservancy Road and
Ambabhavani Layout formed
by BDA
3. The plaint averments in brief are as under:
The suit schedule property was a revenue land. The revenue entries for the year 1966-67 clearly reflects schedule property was in possession of Gosai Mutt. The said Gosai mutt delivered the schedule property to plaintiff. Thereafter the revenue records were entered in the name of plaintiff. The Bangalore Development Authority has not passed any award, not taken possession nor has acquired the land. No compensation has been paid with respect to the suit schedule property. Even in the layout map of Bangalore Development Authority it clearly reflects that the schedule property is reserved for the plaintiff. The Bangalore Development Authority along with Amba Bhavani Society formed Amba 4 O.S.No.8924/2010 Bhavani Layout around the schedule property. The Bangalore Development Authority in its layout map has clearly demarcated the schedule property reserved for the plaintiff. The Bangalore Development Authority has handed over the layout formed around the schedule property to Bangalore Mahanagara Palike (BBMP). Even in the layout map of Bangalore Development Authority that was handed over to BBMP the schedule property is reserved for plaintiff. The Bangalore Development Authority has not formed any sites in the schedule property because the schedule property does not vest with Bangalore Development Authority or the state. The plaintiff is in possession of the schedule property for more than 50 years. The Bangalore Development Authority and Bruhath Bangalore Mahanagara Palike have recognized the right, title and interest of the plaintiff in the suit schedule property. The Bruhath Bangalore Mahanagara Palike has also granted khatha with respect to the suit schedule property in the name of plaintiff. The suit schedule property is exclusive property of plaintiff and accordingly the plaintiff is in physical possession of the suit schedule property continuously, 5 O.S.No.8924/2010 undisturbed and well settled for more than 50 years. The suit schedule property is clearly demarcated by erecting compound all around. The identity is clear and there is no ambiguity with respect to the identity of the suit schedule property. When the matter stood thus S.V.Shankar Rao filed a suit O.S. No.3339/2000 for a relief of permanent injunction. The suit is pending. In the said suit it is claimed that Bangalore Development Authority has formed site No.497/A in the suit schedule property and accordingly a lease cum sale was executed in favour of Shankar Rao dt.8.5.1984. It is also claimed that Bangalore Development Authority executed absolute sale deed dt.24.7.1998. In the O.S. No.3339/2000 it was specifically contended that the site No.497/A does not exists and claim of Shankar Rao is false. A Court Commissioner was appointed for inspection of the property and the Commissioner reported that site No.497/A does not exists. It now appears that the said Shankar Rao pursued the Bangalore Development Authority by using political influence to include site No.497/A in Bangalore Development Authority map and has obtained an order from commissioner for 6 O.S.No.8924/2010 demolition of compound wall and buildings in the suit schedule property. The Bangalore Development Authority has not given any notice to the plaintiff with respect to changing of layout map pertaining to suit schedule property. In O.S. No.3339/2000 Bangalore Development Authority layout map is produced as Ex.P.17 even in that site no.497/A does not exists. Physically there does not exists site No.497/A. Without there being a site the defendant for the reason that already sale deed executed has in a hurried manner concocted the documents to the effect site no.497/A was left out and now incorporated. It is to the knowledge of the defendant that suit schedule property is in physical possession of the plaintiff. The son of Shankar Rao has deposed in his evidence in O.S. No.3339/2000 and has clearly admitted that site no.497/A does not fall within the property of the temple. Thus there is no existence of site no.497/A in the suit schedule property. In the written statement of the plaintiff a counter claim is made by the plaintiff in O.S. No.3339/2000 to declare that site No.497/A is not situated in the suit schedule property. Thus it is a comprehensive suit pending adjudication. During the 7 O.S.No.8924/2010 pendency of the suit O.S. No.3339/2000 the legal heirs of Late Shankar Rao and the official of Bangalore Development Authority have concocted documents to the effect as though site no.497/A is situated in the suit schedule property. The act of defendant is illegal, arbitrary and violation of principles of natural justice. The plaintiff is a temple with religious ceremonies performed accurately as per the Hindu calendar events. It has vast number of devotees present everyday both in the morning and in the evening. In the circumstances it will result in chaos and would lead to law and order problem. Hence, prays to decree the suit.
4. Upon service of summons, the defendant has remained absent and hence he was placed ex-parte.
5. Heard the arguments and perused the records of the case.
6. The plaintiff, in order to prove the case has examined its Archaka as P.W.1 and got marked seven documents at Ex.P.1 to Ex.P.7.8 O.S.No.8924/2010
7. On the basis of the above pleadings, the following points arise for my consideration:-
1. Whether the plaintiff proves that it is in possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff further proves that the alleged interference by the defendant?
3. Whether the plaintiff is entitled for the relief sought for?
4. What Order or Decree ?
8. My findings on the above points are as under:
1. Point No.1 : In the Negative
2. Point No.2 : In the Negative
3. Point No.3 : In the Negative
4. Point No.4 : As per final order, for the following:-
REASONS
9. POINT Nos.1 and 2 : Since these Points are interconnected hence to avoid repetition of facts and evidence they are taken up together for common discussion.
10. The Archala of plaintiff temple filed his affidavit in lieu of examination in chief as P.W.1, wherein he has 9 O.S.No.8924/2010 reiterated the averments made in the plaint. In support of his case, the plaintiff has also produced Exs.P.1 to 7. Ex.P.1 is the certified copy of the orders on I.A. under Order 26 Rule 9 of CPC and I.A. under Order 6 Rule 7 R/w. Section1 151 of CPC of O.S. No.3339/2000 which shows the suit is file by one S.V.Shankar Rao against H.V.Swamy who is the archaka of plaintiff temple wherein the plaintiff sought to appoint Surveyor as Court Commissioner to identify the suit schedule property bearing No.497/A and wherein the defendant contended that the suit schedule property lies within the compound wall of the plaintiff temple and both the applications were allowed. The Ex.P.2 is the certified copy of the deposition of the son of the said S.V.Shankar Rao in O.S. No.3339/2000 wherein he has admitted that the temple is surrounded by compound on all the sides and their properties are not within the compound of the temple. The Ex.P.3 is the layout plan of Sy. No.72 of Gavipura Village, Bangalore which shows the plaintiff temple is in existence. Ex.P.4 is the Certified copy of the order sheet in O.S. No.3339/2000, Ex.P.5 and Ex.P.6 are the Certified copy of the of judgment and 10 O.S.No.8924/2010 decree in O.S. No.3339/2000 which came to be dismissed and Ex.P.7 is the Certified copy of the notings of Bangalore Development Authority regarding site No.497/A which shows that the one S.Mahesh Rao filed application to the Bangalore Development Authority to show the site No.497/A in layout plan and the same was permitted.
11. Though in the Ex.P.1 layout plan and there are passing remarks in the documents pertaining to O.S. No.3339/2000 with respect to the suit schedule property is concerned and that itself is not sufficient to hold that the plaintiff is in possession and enjoyment of the suit schedule property as they are not the documents to show the possession of the plaintiff over the suit schedule property. The plaintiff has not produced khatha with respect to the suit schedule property as stated in the plaint itself. The khatha certificate and the khatha extract of the suit schedule property issued by the Bruhath Bangalore Mahanagara Palike are the proper documents to show the possession of the plaintiff over the suit schedule property. Hence, in the absence of these documents it cannot be said that the plaintiff 11 O.S.No.8924/2010 is in possession of the suit schedule property as on the date of the suit. When the plaintiff failed to prove its possession over the suit schedule property then the question of considering the interference do not arise for consideration. Hence, the Point No.1 and 2 are answered in the negative.
12. POINT NO.3:- Inview of my findings on point no.1 and 2 in the negative and against the plaintiff, the suit of the plaintiff has to be dismiss with costs. Hence, point No.3 is answered in the negative.
13. POINT No.4: In the result, I proceed to pass the following:
ORDER The suit of the plaintiff is dismissed with costs. Draw decree accordingly.
[Dictated to the Stenographer directly on the computer, thereof corrected by me and then pronounced by me in Open Court, on this the 9th day of October 2015] ( BASAVARAJ ) XLI Addl. City Civil Judge Bangalore City.12 O.S.No.8924/2010
ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Shantharaju 17.10.2014
b) Defendant's side:
NIL
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Exs.P.1 Certified copy of the order passed in O.S. No.3339/00 dt.18.7.03 on I.A. No.6 and 9 Ex.P.2 Certified copy of the deposition of one Nagesh in O.S. No.3339/00 Ex.P.3 Certified copy of the sketch Bangalore Development Authority layout Ex.P.4 Certified copy of the order sheet in O.S. No.3339/2000 Ex.P.5 & 6 Certified copy of the of judgment and decree Ex.P.7 Certified copy of the of notings of Bangalore Development Authority regarding site no.497/A
b) Defendant's side :
NIL ( BASAVARAJ ) XLI Addl. City Civil Judge Bangalore City.13 O.S.No.8924/2010
09.10.2015 P-GAR D-Ex-parte Judgment pronounced in the open court vide separate order.
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
( BASAVARAJ ) XLI Addl. City Civil Judge Bangalore City.