Bangalore District Court
T. Yathiraj vs Shashidhar Sambargi on 3 December, 2018
IN THE COURT OF THE XXIV ADDL.CITY CIVIL & SESSIONS JUDGE
BANGALORE CITY (CCH-6)
Dated This 3rd day of December 2018
Present: Smt. ROOPA NAIK,
B.Sc.,MA,LLM,PGD (Human Rights )
24th Addl. City Civil & Sessions Judge,
Bangalore City.
O.S.No.4257/2005
PLAINTIFF: 1 T. Yathiraj,
S/o Thanga Chalam Reddy,
Aged about 50 years,
Residing at Old No.132,
New No.14, 2nd Cross,
5th Block, Revenue Layout,
Banashankari 3rd Stage,
Bangalore-560 085.
(By Smt. D.N. Mamtha, Advcoate)
-Vs-
DEFENDANTS: 1 Shashidhar Sambargi
Since dead by Lrs.,
1a Smt. Pushpa Sambargi,
W/o Shashidhar Sambargi,
Aged about years,
Residing at No. 108, 3rd phase,
B.S.K. 3rd Stage,
Bangalore-560 085.
1b Prashanth Sambargi,
Shashidhar Sambargi,
Aged about years,
Residing at No. 108, 3rd phase,
B.S.K. 3rd Stage,
Bangalore-560 085.
(By Sri. G.L.Vishwanath, Advocate)
2
O.S.No.4257/2005
Date of institution of the suit: 07.06.2005
Nature of the suit: Permanent Injunction
Date of commencement of
recording of evidence: 19.01.2009
Date on which Judgment was
pronounced: 03.12.2018
Duration Days Months Years
27 05 12
JUDGMENT
This is a suit filed by plaintiff against defendant for permanent injunction restraining defendant from interfering with his peaceful possession and enjoyment of schedule 'B' property and for declaration that allotment of marginal land ie., 'B' schedule property to defendant by BDA is illegal, void and without jurisdiction and also for mandatory injunction directing the defendant to demolish the structure put-up in schedule 'C' property and also for possession of schedule 'C' property and for costs and such other relief.
2(a). It is contended that plaintiff is absolute owner in possession premises bearing No.132, new No.14, 2 nd cross, Revenue Layout, BSK 3 rd 3 O.S.No.4257/2005 stage, Bengaluru-85. His vendor had purchased the same with neighboring plot in the year 1980. Thus, plaintiff and his vendor were in continuous un- interuppted possession of plaint schedule property. In the year 1988 plaintiff tendered taxes under self-assessment scheme. He is in occupation of plaint schedule property along with his younger brother and family members.
2(b). Defendant who is residing in south-western rear portion of plaint schedule property is attempting to usurp the property in his possession without any right. Plaintiff is in possession and enjoyment of suit schedule property with his family members and has planted various types of trees in suit schedule property. Plaintiff has purchased portion of suit schedule property from one Vijaya on 20.7.1994. Earlier to his purchase of portion of suit schedule property under sale deed dated:
20.07.1994, his vendor was in peaceful possession and enjoyment of excess area. Plaintiff 's vendor was in possession of East-west 65 feet and North-South 40 feet openly continuously and hostile to interest of defendant and his predecessors in title. Their possession is adverse to interest of defendant and his predecessors . Even though sale deed is only in respect of an area measuring 35 feet East-west and 20 feet North-South on southern side and 40 feet on northern side, plaintiff and his vendor were in possession of suit schedule property. Plaintiff has constructed house and 4 O.S.No.4257/2005 is residing there.
2(c). It is further contended that on western side of suit schedule property there is site bearing No.107. Defendant's property is not situated around suit schedule property. Hence, there is no marginal land around property No.107 which could be allotted to defendant . No application was filed by owner of property bearing No.107 for allotment of marginal land. No marginal land can be allotted when the same does not abut the site. During pendency of present suit defendant encroached upon property belonging to plaintiff . The encroached portion is schedule 'B' property. Defendant has put-up illegal construction over schedule 'B' property which is described in schedule 'C' property. Plaintiff has put-up compound wall around property in his possession. Schedule property consists of a house wherein plaintiff is residing with his family members. On 5.6.2006 defendant and his henchmen tried to demolish schedule property belonging to plaintiff. Plaintiff approached jurisdictional police but, they had directed him to approach Civil Court. Therefore, he is constrained to file present suit. It is prayed that suit may be decreed.
3. The plaint schedule reads as follows:
'A' SCHEDULE All that piece and parcel of the premises bearing No.132, No.14, Khatha No.77/1, situated at Bengaluru South 5 O.S.No.4257/2005 Taluk, Uttarahalli hobli, Kathraguppe village, along with 5 Square house constructed thereon and measuring East to West: 65 feet and North to South: 40 feet, and bounded on the:
East by : BDA Road,
West by : BDA Site No.107
North by : Site No.131,
South by : Site No.133.
'B' SCHEDULE
All the piece and parcel of site measuring East to West:
40 feet, North to South: 8 feet, forming part and parcel of "a' schedule property which is morefully described in the sketch.
'C' SCHEDULE Portion of "B" schedule property measuring East to West 10' North to South 'B' which is more particularly described in the sketch.
4(a). In pursuance of suit summons, defendant appeared through his counsel and filed written statement contending that plaintiff is not in possession of area measuring 65 feet X 65 feet. Defendant was put in possession of site NO.108 in Block No.5, BSK 3 rd stage, 3rd phase, measuring EW;60 feet ad NS 40 feet under possession certificate dated: 30.5.1981. To the East of the site allotted to defendant, there was marginal land measuring 55feetX40 feet 40feetX45 feet.
2 2 6
O.S.No.4257/2005 4(b) It is further contended that defendant applied to BDA for allotment of marginal land. Said marginal land was also allotted to defendant. Accordingly possession certificate was issued by BDA to defendant. Defendant has put up residential construction on said property after obtaining sanctioned plan and licence from BDA. Defendant is paying tax to city corporation. Thus, defendant is absolute owner in possession of his property. Plaintiff cannot claim property in possession of defendant . It is prayed that suit may be dismissed.
5. Based on the above pleadings of the parties, following issues and additional issues were framed.
1. Does plaintiff prove that he was in lawful possession of suit schedule properties on the date of suit?
2. Is alleged interference true?
3. What order or decree?
ADDITIONAL ISSUES
1. Whether plaintiff further proves that during pendency of present suit defendant encroached upon property belonging to him and put up construction?
2. Whether plaintiff proves that BDA order allotting marginal land ie., schedule 'B' property to defendant is illegal, void and without jurisdiction?
7
O.S.No.4257/2005
3. Whether plaintiff is entitled for permanent injunction as prayed?
4. Whether plaintiff is entitled for declaration as prayed?
5. Whether plaintiff is entitled for mandatory injunction as prayed?
6. Whether plaintiff is entitled for possession of schedule 'C' property?
6. Plaintiff got himself examined as PW.1 and got marked Ex.P1 to P.8.
7. Heard and perused records.
8. My findings on the above issues are:
Issue No.1: In Negative
Issue No.2: Does not arise for consideration.
Addl. Issue No.1: In Negative
Addl. Issue No.2: In Negative
Addl. Issue No.3: In Negative
Addl. Issue No.4: In Negative
Addl. Issue No.5: In Negative
Addl. Issue No.6: In Negative
Issue No.3: As per final order
for the following;
8
O.S.No.4257/2005
REASONS
9. ISSUES No.1, additional Issue No.1 and 2:- Bone of contention of plaintiff is that he is absolute owner in possession of premises bearing No.132, new No.14, 2nd cross, Revenue Layout, BSK 3 rd stage, Bengaluru-
85. His vendor had purchased the same with neighbouring plot in the year 1980. Thus, plaintiff and his vendor were in continuous un-interuppted possession of plaint schedule property. Defendant who is residing in south-western rear portion of plaint schedule property is attempting to usurp the property in his possession without any right. Plaintiff is in possession and enjoyment of suit schedule property with his family members and has planted various types of trees in suit schedule property. Plaintiff has purchased portion of suit schedule property from one Vijaya on 20.07.1994. Earlier to purchase of portion of suit schedule property under in sale deed dated: 20.7.1994 his vendor was in peaceful possession and enjoyment of excess area. Plaintiff 's vendor was in possession of East- west 65 feet and North-South 40 feet openly continuously and hostile to interest of defendant and his predecessors in title. Their possession is adverse to interest of defendant and his predecessors. Plaintiff has constructed house and is residing there. Defendant's property is not situated around suit schedule property. Hence, there is no marginal land 9 O.S.No.4257/2005 around property No.107 which could be allotted to defendant . During pendency of present suit defendant encroached upon property belonging to plaintiff . The encroached portion is schedule 'B' property. Defendant has put-up illegal construction over schedule 'B' property which is described in schedule 'C' property. Plaintiff has put-up compound wall around property in his possession.
10. At the threshold, I would like to point out that present suit is for declaration, possession and for mandatory injunction directing defendant to pull down un-authorised construction put-up by him over schedule 'C' property. It is well settled proposition of law that in suit for declaration, mandatory injunction and permanent injunction and possession, plaintiff who seeks indulgence of the Court should establish and prove that he is absolute owner of said property and that defendant has encroached and put up construction in his property and that he is entitled for such mandatory injunction and possession. In case of relief of permanent injunction, he also should further prove that he is in lawful possession of suit schedule property and also interference or threatening of dispossession by defendant. If plaintiff fails to establish these ingredients satisfactorily, it would suffice to say that he will not be entitled for any relief. Keeping these facts in mind, now let me analyze available evidence on record to determine as to whether plaintiff has discharged initial burden cast upon 10 O.S.No.4257/2005 him.
11. Prime contention of plaintiff is that he is in possession of schedule 'A' property and that property in his possession is in excess to measurements shown in his sale deed and that his vendor was also in possession of excess land. Allotment of marginal land by BDA in favour of defendant is illegal. Defendant has encroached property belonging to plaintiff during pendency of present suit and has put-up construction in it.
12. Plaintiff who is examined as PW.1 reiterates plaint averments. In his cross-examination he states that he has not seen title deed of his vendor and that he does not know as to whether name of Vijaya was entered in respect of said property and as to whether she was paying tax pertaining to said property. He further states that he had purchased said property in 1983 and that he has not produced sale deed executed in 1983. He further states that he has not paid tax in respect of excess land and that he has no documents supporting measurements of suit schedule property shown in plaint. Evidence of PW.1 is not of much help to plaintiff .
13. In order to prove his case, plaintiff has mainly relied on Ex.P1 to 8. Ex.P1 is original sale deed dated: 20.07.1994 executed by one Vijaya in favour of plaintiff. In schedule of this sale deed measurements of property is mentioned as East- West: 35 feet on northern side, 20 feet on southern side, North-South 40 feet. But, plaintiff has not produced sale 11 O.S.No.4257/2005 deed of his vendor or extract or tax paid receipt in her name showing that said Vijaya was owner of said property at the time of execution of the sale deed. His vendor Vijaya was the best person to speak about all those things. But, plaintiff has not taken any pain to examine her for the reasons best known to him. Therefore, in absence of supporting documents, Ex.P1 is not of much use to plaintiff to prove his case. In addition to this, measurements of the property mentioned in the plaint do not tally with measurement of property mentioned in Ex.P1. On this count also, Ex.P1 is not of much use to plaintiff to prove his case.
14. Ex.P2 is letter written to Chief Engineer by plaintiff seeking allotment of marginal land in his favour. Ex.P3 is endorsement issued by Sub-Registrar, Ex.P4 is tax paid receipt, Ex.P5 is endorsement issued by Asst. Revenue Officer, Ex.P6 is notice issued by BBMP, Ex.P7 is certified copy of sale deed of neighbouring person and Ex.P8 is certified copy of lay- out plan. I have carefully perused Ex.P2 to 8. These are the documents either written by plaintiff or endorsements given by authorities or tax paid receipt showing tax paid by plaintiff under self-assessment. These documents are not supported by any connecting document. Admittedly, marginal land was allotted to defendant by BDA. Only by producing some correspondences, plaintiff is contending that allotment of marginal land in favour of defendant is illegal, which is not proper. Therefore, I am of the 12 O.S.No.4257/2005 opinion that materials on record are not sufficient to hold that plaintiff has proved his case.
15. Apart from this , plaintiff has not put-forth any material showing that schedule 'B', and 'C' properties are part and parcel of schedule 'A' property. In addition to this, plaintiff is not sure about measurements of his property and so also measurements of alleged encroached portions. Apart from this, as already stated by me plaintiff has not put-forth any material showing that schedule 'B' and 'C' properties are part and parcel of schedule 'A' property and that defendant has encroached property belonging to him and has put-up illegal construction as contended by him.
16. Very strangely, plaintiff has not even got court commissioner appointed to ascertain measurements of his property and encroachment which is fatal to his case. Except self-serving evidence of plaintiff , there is nothing on record showing that allotment of marginal land in favour of defendant by BDA is null and void and illegal. Evidence of plaintiff lacks degree of proof required for issuance of mandatory injunction. Thus, I have no hesitation to say that materials on record are insufficient to hold that plaintiff is owner of schedule 'A' property and that schedule 'B' and 'C' properties are part and parcel of schedule 'A' property and that defendant has encroached property of plaintiff as contended by him. Above all, plaintiff does not disclose as to why he has not added remaining co- 13
O.S.No.4257/2005 owners of his property. It is not his contention that they are no more. Present suit being suit for declaration, possession, permanent injunction and mandatory injunction, all the interested persons should have been added as plaintiffs. This lapse is also fatal to case of plaintiff. For all the above stated reasons, I am of the opinion that story of plaintiff of being owner of schedule 'A' property and defendant encroaching schedule 'B' property and putting up illegal construction in schedule 'C' property has not seen light of the day.
17. In present case, defendant has not adduced oral or documentary evidence. This does not come to aid of plaintiff in any way as it is settled principle of law that plaintiff should stand or fall on his own feet. He cannot be permitted to take shelter of weakness of defendant. In present case also, only because, defendant has not adduced evidence, suit cannot be straight way decreed even if plaintiff has failed to prove his case. Accordingly I answer Issue No.1 and additional Issues No.1 and 2 in 'Negative'.
18. Issue No.2:- When Issue No.1 is answered in Negative, issue No.2 does not arise for consideration.
Additional
19.ADDITIONAL ISSUE No.3 to 6:- When issue No.1 and additional issues No.1 and 2 are answered in negative, plaintiff is not entitled for any 14 O.S.No.4257/2005 of the reliefs claimed. Accordingly, I answer these issues in Negative.
20. Issue No.3:- In view of above discussion, I proceed to pass the following:
ORDER The instant suit filed by plaintiff is dismissed with costs. Draw decree accordingly.
(Dictated to the Judgment Writer on-line, print out taken thereof is corrected, signed and pronounced by me in Open Court on this 3rd day of December, 2018).
(ROOPA NAIK) XXIV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1: Sri.T. Yathiraj List of documents marked for the plaintiff:
Ex.P.1: Original sale deed dated: 20.7.1994 Ex.P.2: Letter issued to Chief Engineer Ex.P.3: Endorsement issued by Sub-Registrar Ex.P.4: Tax paid receipt Ex.P.5: Endorsement issued by Asst. RevenueOfficer Ex.P.6 Notice issued by BBMP Ex.P.7 Certified copy of adjacent site sale deed Ex.P.8 Lay-out plan obtained from B.D.A. 15 O.S.No.4257/2005 List of witnesses examined for defendants
-Nil-
List of documents marked for defendants:
-Nil-
(ROOPA NAIK) XXIV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.Digitally signed by ROOPA SHIVAPPA NAIK DN: cn=ROOPA
ROOPA SHIVAPPA
NAIK,ou=HIGH COURT
SHIVAPPA OF
KARNATAKA,o=GOVERN
MENT OF
NAIK KARNATAKA,st=Karnatak
a,c=IN
Date: 2018.12.05
13:21:09 IST
16
O.S.No.4257/2005