Bangalore District Court
Smt. K. Venkatalakshmamma vs The Commissioner on 20 December, 2018
Form
No.9
(Civil)
Title
Sheet for
Judgmen
t in Suits
R.P. 91 PRESENT: SMT. PRASHANTHI.G.
B.A (Law) LL.B.,
XXVII Additional City Civil Judge.
Dated this the 20 th day of December 2018
PLAINTIFF: Smt. K. Venkatalakshmamma
Wife of Shri Kalaiah
Aged about 52 years,
Residing at No.39/1, 3rd Main,
D.N. Block, Kempegowda Nagar,
Bangalore-560 019.
[By Sri Prakash T.Hebbar, Advocate]
/v e r s u s/
DEFENDANTS: 1. The Commissioner
Bangalore Mahanagara palike,
Near Corporation Circle,
Bangalore-560 002.
2. The Deputy Commissioner
(Markets)
Bangalore Mahanagara Palike,
Behind Sampangiramanagar
Police station,
Sampangiramanagar,
Bangalore-560 027.
3. The Deputy Commissioner
(Estate)
Bangalore Mahanagara Palike,
2
CT0028_O.S._68_2003_Judgment_.doc
.
Near Corporation Circle, Bangalore-560 002.
4. The Assistant Revenue Officer, Bangalore Mahanagara Palike, Basavanagudi Range, Basavanagudi, Bangalore.
5. The Assistant Executive Engineer, Bangalore Mahanagara Palike, Shankarapuram Sub-Division, Basavanagudi, Bangalore.
6. The Assistant Director of Land Records Survey Department, Office of the A.D.L.R.K.R.Circle, Bangalore-560 002.
7. The State of Karnataka, Revenue Department, M.S.Building 5th floor, Dr. Ambedkar Road, Bangalore-560 001.
Rep. By its Secretary.
8. Smt. K.Shanthamma Wife of Shri L. Lingaiah, Aged about 45 years, Res.at: No.38, 3rd cross, D.N.Block, Gavipura Guttahalli, Kempegowdanagar, Bangalore-560 019.
D1 to D5 - By Sri NRJ, Advocate D6 and D7 - By DGP 3 CT0028_O.S._68_2003_Judgment_.doc .
Date of institution of the : 2/1/2003 suit Nature of the suit : For declaration and injunction Date of commencement of : 25/06/2008 recording of the evidence Date on which the : 20/12/2018 Judgment was pronounced.
: Year/s Month/s Day/s Total duration 15 11 18 (Prashanthi. G) XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against the defendants for the relief of declaration declaring that the plaintiff is the absolute owner of the suit schedule property bearing property No.39/1, Ward No.30 and later No.49, situate in Gavipura Guttahalli, 3 rd Main Road, Dhobi Nanjappa Block, Bangalore -560 019 with a residential building constructed thereon, acquired under registered sale deed dated 8/6/1989 with document No.762/1989-90 and in lawful possession of the same. Further permanently restraining the 4 CT0028_O.S._68_2003_Judgment_.doc .
defendants No.1 to 7 their servants and agents or any official claiming under or through them in any capacity whatsoever from demolition of the residential house constructed in the suit schedule property or any portion thereof and/or from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property in any manner whatsoever and for mandatory injunction directing the first defendant to restore the katha in the name of the plaintiff on the basis of the katha certificate bearing No.B.45/KTR.20/89-90 dated 21/09/1989, as per Document No.2 in respect of the suit schedule property, and cost of the suit.
2. In brief, the plaintiff's case is as under:
The plaintiff is the absolute owner of the immovable property bearing property no.39/1 ward no.30 and later no.49 situated in Gavipura Guttahalli, Dhobi Nanjappa Block, Bengaluru. The same came into his possession by virtue of registered sale deed 5 CT0028_O.S._68_2003_Judgment_.doc .
executed from Smt. K.Shanthamma on 8/6/1989. After the purchase of the property, katha has been changed in the name of the plaintiff. The plaintiff has paid property tax to the first defendant. After the purchase, plaintiff applied for BBMP for the sanction plan for the construction of the residential house. Accordingly on 6/5/1991, the defendant no.5 sanctioned the plan vide license no.68182 dated 6/5/1991. As per the sanction plan, the plaintiff has constructed the building and has been residing there along with their family members. She has also got electricity connection to the suit schedule property. The first defendant has also given permission to the plaintiff for laying underground pipeline to the plaintiff's house in the suit schedule property and first defendant has also given no objection for taking connection to the plaintiff's said house.
The plaintiff has also taken loan from the Bengaluru City Co-operative Bank for construction of 6 CT0028_O.S._68_2003_Judgment_.doc .
house in the schedule property. She has paid entire loan amount and got the said mortgage released under redemption deed dated 2/11/2002. In order to show the location of the property, the plaintiff has also produced the rough sketch of the same. But in all the original documents, the name of one Sri Chowdappa is reflected. Later on, the plaintiff who purchased a portion of the land in sy.no.67 under registered deed. As per the register maintained by the ADLR the said survey no. 67 was subdivided as 67/1, 67/2 and 67/3, survey no.67/2 is allotted in the name of one Sri Thimmaiah, 67/3 is allotted to the name of one Smt.Rangamma. The remaining extent in s y.no.67/1 still remains in the name of original owner Chowdappa. The suit schedule property forms the part of hissa no.1 of sy.no.67.
As per the plaintiff, Kempabudi tank is situated in sy.no.2 of Kempabudi kere village, Bengaluru north taluk. From the map of Kempabudi tank, which is 7 CT0028_O.S._68_2003_Judgment_.doc .
prepared by the survey settlement department, said tank is situated in sy.no.2 of that village. The village map of Gavipura village is also shows that the Kempabudi kere is in sy.no.2 of that village. In the said map, sy.no.67 is also clearly shown and from the map, it was a cultivable land and did not form any tank muchless that of Kempabudi tank. As per the map submitted by the plaintiff, sy.no.1 and 67 are adjoining survey numbers and they are both hiduvali lands and not formed part of sy.no. 2 of Kempabudi tank. The contention of the BBMP is that survey no.67 forms the part of Kempabudi tank is baseless and mistaken identified. However, the said authorities have inadvertently considered that the said sy.no.1 and 67 are forming the part of Kempabudi tank by allotting the CTS 10. As per the plaintiff, both survey no.1 and sy.no.67 are outside the limit of said Kempabudi tank which has been allotted a specific survey no.2 by the revenue authorities. The plaintiff 8 CT0028_O.S._68_2003_Judgment_.doc .
further submits that on the basis of map prepared by the revenue authorities the Assistant Revenue Officer issued a show-cause notice to the plaintiff stating that suit schedule property falls within the Kempabudi tank, thereby submitted that the katha made in the name of the plaintiff as her vendors would be revoked under the provisions of KMC Act. When plaintiff appeared before the said authority and produced all the documents and opposed the revocation of the katha, 4th defendant revoked the katha standing in the name of plaintiff as well as his vendor. The first defendant corporation claim that suit schedule property is the property of the first defendant corporation under Section 174 of the Karnataka Municipal Corporation Act. The plaintiff challenged the said revocation of katha in the Hon'ble High Court of Karnataka in W.P.31320/2001 and in that case also, the first defendant contended that suit schedule property allegedly falls under sy.no.2 as per the map 9 CT0028_O.S._68_2003_Judgment_.doc .
of local area no.47, Kempegowda nagar since as per the plaintiff, suit schedule property is absolute property the same has to be decided by the competent civil court, therefore the plaintiff withdraw the writ petition. However, the Hon'ble High Court of Karntaka reserved the liberty to the plaintiff to redress her grievance before this court. As per the plaintiff the defendants illegally claim that suit schedule property forms the part of Kempabudi tank, though they originally accepted the katha in the name of the plaintiff. It is further submitted that the defendants already accepted the katha in the name of one Smt.Rangamma whose property is also the property of sy.no.67. However, no notice has been issued to them by the Corporation stating that their property comes under the purview of Kempabudi tank. It is the specific contention of the plaintiff that the first defendant has made only the suit schedule property as an exception with the ulterior motive and malafide 10 CT0028_O.S._68_2003_Judgment_.doc .
intention for extraneous consideration. To support the claim of the plaintiff, the plaintiff also produced the photographs of residential buildings constructed by her in the suit schedule property. Further, she also filed revision before the Joint Director of Land Records against the order dated 13/4/1977 passed by the Enquiry Officer in the revision no.50/94-95 the same came to be dismissed.
As per the plaintiff, immediately after the expiry of the interim order in the Hon'ble High Court of Karnataka the defendants interact among themselves that they will demolish the building in the suit schedule property saying that suit schedule property forms the part of Kempabudi tank. The plaintiff categorically submits that sy.no.67 in which the su it schedule property is situated and CTS No.10 are entirely two different properties. The plaintiff submits that defendants have made all arrangements for the purpose of demolition of suit schedule property and 11 CT0028_O.S._68_2003_Judgment_.doc .
they have also communicated this matter to the Task Force for demolition. The first defendant has already accepted the katha in the name of the plaintiff and her vendors. They have also collected the tax, issued license and also for sanction plan for the construction of the residential house in the suit schedule property. The first defendant has also collected the layout charges, premiums for granting no objection to the electricity, laying underground pipe and water pipe to the plaintiff's residence. The defendants also admit that plaintiff is in the possession and enjoyment of the suit schedule property and the house constructed therein. Moreover, as per the plaintiff he is entitled to declaration of ownership and title over the suit schedule property as the defendants admitted the possession of the plaintiff over the suit schedule property.
Cause of action to file the suit arose on 23/24/7/2001 on which date the defendants 1 and 4 12 CT0028_O.S._68_2003_Judgment_.doc .
and defendants 3 have revoked the katha standing in the name of the plaintiff and her vendor on 13/8/2001 on which date the plaintiff approached the Hon'ble High Court of Karnatkaa in W.P.No.31320/2001 (BCC) (LB) and on 13/12/2002 on which date the Hon'ble High Court of Karnataka granted liberty to the plaintiff to approach the competent Courts of Law for redressal of her grievance and subsequently when the defendants 1 to 7 have made all arrangements for demolition of the residential building standing in the suit schedule property and also for the dispossession of the plaintiff from the suit schedule property immediately after the expiry of the interim order of stay of demolition granted by the Hon'ble High Court of Karnataka and subsequently which is within the territorial and pecuniary jurisdiction of the Hon'ble Court to admit, try and dispose off this suit. Hence the plaintiff filed this suit.
13 CT0028_O.S._68_2003_Judgment_.doc .
3. In response to the suit summons issued by the Court, defendants appeared through their respective counsel and filed written statement.
4. Defendants 1 to 5 have filed their written statement contending that the suit itself is not maintainable either in law or on facts of the case. In the guise of property in sy.no.67, the plaintiff is claiming part of sy.no.2 of Kempabudikere which is exclusively the property of the government and as such the suit is liable to be dismissed. The suit property is not situated in Dhobinanjappa Block as alleged in the plaint schedule. The details given by the plaintiff is wrong. The suit is not maintainable as the plaintiff was not issued to the defendant under Section 482(1) of KMC Act which is mandatory for claiming the relief for declaration. Further, no dispensation is granted against the State also under Section 80(2) of the CPC. The suit is also not properly valued. All the documents produced by the plaintiff 14 CT0028_O.S._68_2003_Judgment_.doc .
are obtained by suppressing the material facts and claiming that the said property is part of sy.no.67 right from the beginning by playing fraud and got up documents. The katha has been obtained by suppression of material facts. On re-survey, it is noticed that the property is the part of sy.no.2 of Kempabudikere and it is not in Dhobinanjappa block. As per the defendants, the katha and other documents are obtained by the plaintiff by suppressing the real facts. This defendant denies para no.8,7, 9. Further, defendant submits that Kempabudi kere tank is situated in sy.no.2. It is submitted that it is adjacent to sy.no.67 and on the western side of sy.no.67 sy.no.2 is situated which is clear from the sale deed produced by the plaintiff herself. Since there was an encroachment of tank and tankbeds which are the exclusive property of the State Government, in order to preserve the tanks, the Government has appointed an Expert Committee under the 15 CT0028_O.S._68_2003_Judgment_.doc .
chairmanship of Sri Lakshmanrao, IAS. In his report, it is clearly mentioned that the encroachments made in the tank and in order to preserve it, has recommended to Corporation and Forest Department. Further, in the report, it is mentioned that in order to preserve the historical monuments in the sy.no.2, the same is to be acquired. The Government also accepted the report and handed over the properties to the defendant no.1. In the survey conducted by the Government, it has been established that the area claimed by the plaintiff as sy.no.67 is not part of sy.no.67 but it is the part of sy.no.2 of Kempabudi tank. This survey is done by giving proper notice to the plaintiff and it was concluded that suit schedule property is the part of sy.no.2 of Kempabudikere. The revision filed by the plaintiff was also rejected. Moreover, the revenue section also issued the notice why katha should not be revoked including the katha issued to the Shanthamma previous vendor. The writ 16 CT0028_O.S._68_2003_Judgment_.doc .
petition was disposed of the matter since the same has to be decided by examining all the aspects in a detailed enquiry. Since katha was obtained on misrepresentation stating that it is the part of sy.no.67 and later on it was found that it was obtained in respect of the government property i.e., in sy.no.2 of Kempabudikere tank, it decides to revoke the katha after giving opportunity of being heard. Whatever the revocation held by the defendants is in accordance with law. Even the predeceased in the title did not seek for establishment of the title when the cloud has arisen and they sold the properties to the Shanthamma and from whom the plaintiff purchased. Since the vendors of the plaintiff's title is not established, the plaintiff's title is also not established. In view of the revocation of the katha, the entire subsequent documents including the plan, license and assessment orders are gone. Further, there is no 17 CT0028_O.S._68_2003_Judgment_.doc .
cause of action for the suit. So, prays to dismiss the suit.
5. The defendants 6 and 7 also filed the written statement stating that there is no relief claimed against them. So, it has to be dismissed. The present suit is filed by the plaintiff is without jurisdiction as there is a specific bar provided under Karnataka Land Revenue Act. The plaintiff cannot file a suit against the revenue authority for the purpose of securing the evidence, documents etc., Therefore, the present suit is to be dismissed. Further, the plaintiff has not challenged any survey conducted by the ADLR. Hence, that document becomes final. The plaintiff has to prove his case by leading independent and cogent evidence to substantiate his claim for declaration and injunction. These defendants also submitted that Kempabudikere tank is situated in sy.no.2. It is submitted that it is adjacent to sy.no.67 and on the western side of sy.no.67, sy.no.2 18 CT0028_O.S._68_2003_Judgment_.doc .
Kempabudikere is situated. The defendants have also produced mulatippani, resurvey no.67 of Gavipura village, hissa survey book extract, atlas of sy.no.67/1, 2, 3 and mulatippani of sy.no.2 and 3 of Kempabudikere village, resurvey tippani and all other documents in order to show that suit schedule property comes under sy.no.2. Therefore, the defendants contended that there is no right to the plaintiff to claim the relief as stated in the plaint. Hence, prayed to dismiss the suit with heavy costs.
6. Based upon rival pleadings of the parties, my predecessor in office has framed the following issues and additional issues:
(1) Whether the plaintiff proves tht she is the absolute owner of the suit schedule property?
(2) Whether the plaintiff proves that she is in lawful possession over the suit schedule property as its owner on the date of the suit?
(3) Whether the plaintiff proves the
alleged interference of
19
CT0028_O.S._68_2003_Judgment_.doc .
defendants in the suit schedule property?
(4) Whether plaintiff is entitled for permanent injunction against the defendants as prayed?
(5) Whether plaintiff is entitled for declaratory relief as prayed?
(6) Whether plaintiff is entitled for Mandatory injunction against defendant no.1 as prayed in the plaint?
(7) Whether the suit is bad for want of notice under Section 482 of KMC Act?
(8) Whether suit is properly valued and court fee paid is sufficient?
(9) What decree or order?
Additional Issue:
1. Whether defendants 6 and 7 prove that present suit filed by the plaintiff is not maintainable against them as contended?
7. Plaintiff in order to prove her case, got examined her GPA holder as PW.1 and got marked Ex.P1 to Ex.P53 and closed plaintiff's side evidence.
On behalf of the defendants, the Assistant Revenue 20 CT0028_O.S._68_2003_Judgment_.doc .
th officer of 4 defendant is examined as DW.1 and did not produce any documents on her behalf.
8. Heard both the sides and perused the entire records of the case.
9. My findings on the above issues are as under:
Issue No. 1) ............In the affirmative; Issue No. 2) ............In the negative; Issue No. 3) ............In the negative; Issue No. 4) ............In the negative; Issue No. 5) ............In the negative; Issue No. 6) ............In the negative; Issue No. 7) ............In the affirmative; Issue No. 8) ............Need not answer Issue No. 9) ............As per final order for the following:
Addl.Issue No.1........... In the affirmative;
10. ISSUE NO.1: It is the specific case of the plaintiff that suit schedule properties are come into possession by virtue of sale deed. To support the 21 CT0028_O.S._68_2003_Judgment_.doc .
claim, she has produced the original sale deed dated 8/6/1989. As per Ex.P2, the schedule property comes under Dhobinanjappa block, Gavipura Guttahalli village. As per the plaintiff, from the date of sale deed, she is in the possession of the suit schedule properties. Ex.P3 reveals that the katha has been transferred in the name of the plaintiff. Further, she has also paid taxes to the concerned authority which is clear from Ex.P4 to Ex.P8. The plaintiff has also produced the original sale deed which is in the name of K.Shanthamma who is the vendor of this plaintiff. In the schedule of the Ex.P9, it is clear that the property belongs to Gavipura village. Further, Ex.P10 is the certificate issued by the Assistant Revenue Officer in favour of Shanthamma saying that the katha of the property no.39/1 belongs to Dhobinanjappa block. From the original documents, Ex.P11 to Ex.P17 shows that the vendor of the plaintiff as well as plaintiff are in the possession of the 22 CT0028_O.S._68_2003_Judgment_.doc .
suit schedule property from the date of sale deeds. She has also availed the loan in respect of the suit schedule properties in this regard. An entry has also been made in the encumbrance certificate. Later on after the repayment of the loan, she has executed redemption deed with regard to the mortgage of the properties. From the pleadings as well as documents submitted by the plaintiff, it is clear that she is in the possession of the suit schedule property. Even, in her chief examination she agreed that she is in possession of the suit schedule property. The specific contention of the defendant is that the suit schedule property is the property of acquisition. It does not mean that the suit schedule property is not in the possession of the plaintiff. Even though the plaintiff's katha was cancelled by the City Corporation Authority, she is still in the possession of the suit schedule property. This matter is admitted by the defendants also. In the cross-examination of DW.1, in Ex.P56 she identified 23 CT0028_O.S._68_2003_Judgment_.doc .
the house of the plaintiff and to the same line of the house of the plaintiff there situates many houses. From the photographs, she has clearly identified that the house of the plaintiff is situated after the garden near the Kempabudikere tank. So, from Ex.P54 and Ex.P55, it is clear that the plaintiff is in possession of the suit schedule property. However, this does not mean that she is in the lawful possession of the suit schedule property. Moreover, she herself deposed that BBMP has issued the license to the plaintiff to construct the house. Therefore, from the documents and from the depositions of PW.1 and DW.1 it is clear that the plaintiff is in possession of the suit schedule property. Hence, I answer issue no.1 in the affirmative.
11. ISSUE NO.2: No doubt, from the above discussions it is admitted that the plaintiff is in the possession of the suit schedule property as that of her owner on the date of the suit. However, this does not 24 CT0028_O.S._68_2003_Judgment_.doc .
mean that she is in the lawful possession over the same. It is the specific case of the defendant that suit schedule property comes under survey no.2 of Kempabudikere which is exclusively belong to Government. The suit schedule property is not at all situated in Dhobinanjappa block as alleged in the plaint. All the documents which are produced by the plaintiff are obtained by suppressing the material facts. Moreover the schedule boundaries do not match the property out of which the plaintiff claim right over it. Since the claim of the plaintiff that in the guise of survey no.67, he is claiming survey no.2 of Kempabudikere tank by encroaching upon the tank property which is situated within the limits of the BBMP, the plaintiff has no right absolutely over the suit schedule property. However, in order to support his claim, the defendants have not produced any documents. Further, in order to prove the lawful possession, the plaintiff did not get the land in survey 25 CT0028_O.S._68_2003_Judgment_.doc .
no.67 surveyed to identify the property. Moreover, as per the depositions of the plaintiff herself, the City Corporation Authorities have cancelled the katha which was earlier granted to her as per Ex.P3. Moreover, PW.1 is not aware whether the City Corporation authorities have cancelled the katha which was standing in the name of the vendor of the plaintiff also. Moreover, they have not challenged the order passed by the Joint Director of Land Records dated 13/4/1977 with regard to the encroachments made in old sy.no.2 of Kempabudikere. Further, the revision filed by the plaintiff challenging the order of the JDLR came to be dismissed. The plaintiff has not challenged the order of the revision further before any authority, it has become final. So, from the order dated 27/5/1996, it is clear that there is a dispute with regard to the title of plaintiff over the suit schedule property. Further, the plaintiff herself admitted that Kempabudikere tank is situated 26 CT0028_O.S._68_2003_Judgment_.doc .
towards the north western side of her property. Moreover, from the depositions of PW.1, it is clear that she has not challenged the Ex.P34 passed by the Hon'ble High Court of Karnataka in W.P.No.31320/01. The above writ petition is preferred by the plaintiff herself under Article 226 and 227 of the Constitution praying to restore the katha which was cancelled by the respondent no.2 in the above petition. However, in the above writ petition, the above writ petition was withdrawn reserving her liberty to redress her grievances before the competent forum. Further, she has not produced any RTC extracts to show that sy.no.67 of Kempabudi village was standing in the name of her vendor's vendor. No layout plans are also produced by plaintiff to show that she has constructed the house and to determine the exact location of her site. More than that in the cross- examination of PW.1, she has clearly stated that "it is true that Deputy Commissioner of the revenue 27 CT0028_O.S._68_2003_Judgment_.doc .
department has cancelled my katha after knowing that my property comes in Kempabudikere." So, from the above discussions and also from the documents, it is clear that though the plaintiff is in the possession of the suit schedule property, she is not the absolute owner of it. Therefore, I answer issue no.2 in the negative.
12. ISSUE NO.3: It is the specific case of the plaintiff that the plaintiff is the absolute owner of the suit schedule property and in the lawful possession and enjoyment of it on the basis of the documents. Further, it is the specific contention of her that it is not the acquired property as alleged by the defendants in the written statement. Further, from the date of sale deed she is in the possession of the property and also enjoying it without any hindrance from the others. When the fourth defendant issued a show- cause notice to the plaintiff. she thinks that it is a threat to her to revoke the katha. Since suit schedule 28 CT0028_O.S._68_2003_Judgment_.doc .
property as per the defendants is a part of Kempabudi tank the fourth defendant issued the show-cause notice to the plaintiff. Though the plaintiff show the all the documents showing that she is the absolute owner of the suit schedule property, the fourth defendant revoked the katha standing in her name. As per the plaintiff threat of demolition of the property by the defendants stating that the suit schedule property is the acquisition property, itself is the interference of the defendants in the plaintiff's peaceful possession and enjoyment. Further it is her conetntion that by producing the documents from her side, and non- production of the documents from the side of defendants 1 to 7 itself shows that she has proved her title and lawful possession over the land. However, this contention of the plaintiff cannot be taken into consideration since the order of revenue officer by revoking the katha is not challenged by the plaintiff. Further, she herself has admitted in the cross- 29 CT0028_O.S._68_2003_Judgment_.doc .
examination since the suit schedule property is the acquisition property and the revenue department has cancelled her katha after knowing that her property comes in Kempabudikere. So, it is clear that since the plaintiff has not challenged the order of the Deputy Commissioner of the Revenue Department of cancelling of her katha, it cannot be held that she is the absolute owner of the suit schedule property. Further, no where in the cross-examination of DW.1, she has elicited about the interference by the defendants over the suit schedule property. Though the property is still in the possession of the plaintiff, it cannot be held that she is in the lawful possession of the same. Further, whatever the attempts or interference made by the defendant is only as per the law and not trespass as contended by the plaintiff. Since the plaintiff failed to establish her lawful possession over the suit schedule property, whatever the interference which may be caused by the 30 CT0028_O.S._68_2003_Judgment_.doc .
defendant is legal and as per the order of the government. Hence, I answer issue no.3 in the negative.
13. ISSUE NO.4 TO 6: The suit of the plaintiff is one for declaration, permanent injunction and mandatory injunction. It is her specific case that all the documents and revenue documents are still in the name of the plaintiff. Further, from the oral evidence, it is clear that she is in the possession of the suit schedule property. After obtaining the sanction from the defendants no.1 to 5, she constructed the house and taxes are demanded and collected by defendants from the plaintiff. So, when the defendants themselves sanctioned her to construct the house and also collecting the taxes from her indirectly, they agree that she is the title holder of the suit schedule property. However, the point which has to be taken into consideration that whether the suit schedule property is in her lawful possession in order to claim 31 CT0028_O.S._68_2003_Judgment_.doc .
the permanent injunction. Though initially the defendants granted her sanctions on the basis of sale deed, later on they revoked the katha stating that the suit schedule property comes under the purview of Kempabudikere. This matter was also agreed by the PW.1 in her cross-examination. Further, in all the documents submitted by her, one of the the boundary is stated as conservancy which is nothing but the Kempabudikere itself. Moreover, in the cross- examination, she admits that Kempabudikere is situated abutting to her property. Moreover, in order to claim the permanent injunctions, the interference by the defendants is not proved by the plaintiffs. It is an established fact that the defendants have encroached the suit schedule property as per the directions given by the Government to the BBMP to remove the encroachers from the Kempabudikere on the basis of Lakshmanrao Commitee Report. So, whatever the interference is not illegal and as per the 32 CT0028_O.S._68_2003_Judgment_.doc .
due process of law. Another important thing in order to claim the permanent injunction is irreparable damage that has to be caused to the plaintiff by denying the relief of injunction. No doubt, since plaintiff is in possession of the suit schedule property till this date also, and also constructed the house, it will cause damages to her, if injunction is not granted. However, while comparing it to the damage that may be caused to the public at large by granting the injunction to the Kempabudikere, certainly it will cause more damages than the plaintiff. Always public interest is to be taken into consideration while there is a little loss to the individual. Moreover, this loss may be compensated by the concerned authority. Hence, in my opinion, she is not entitled to permanent injunction against the defendants. Further, since the plaintiff has not established her rights over the suit schedule property, the declaratory relief can not be granted. All the titles of the plaintiff are denied by the 33 CT0028_O.S._68_2003_Judgment_.doc .
defendants. Further, the katha of plaintiff is also cancelled. Therefore, in this stage, it cannot be declared that she is the absolute owner of the suit schedule property only on the basis of alleged sale deed and other documents. Moreover, the order of cancellation of the katha has not been challenged by the plaintiff and that order has become final. So, in my opinion she is not entitled to the declaratory relief as she prayed. Further, another contention of the plaintiff is that if this court come to the conclusion that the plaintiff is the absolute owner and in the lawful possession of the suit schedule property, based upon her title, she is entitled to have the katha in her name in respect of the suit schedule property after revocation of the same to her name. As per the plaintiff, whatever the cancellation done by the defendants is not legal and she is entitle to revoke the same if she establish that she is the absolute owner of the suit schedule property. Moreover as per the 34 CT0028_O.S._68_2003_Judgment_.doc .
plaintiff, earlier the title deeds of the plaintiff are accepted by the defendant no.1 to 5, the revocation of the same is patently illegal and contrary to Karnataka Municipal Corporation Act. However, this contention of the plaintiff cannot be taken into consideration since she has failed to establish her right over the suit schedule property and lawful possession over the same. Since she has failed to prove issue no.2 to 5, she cannot claim mandatory injunction to restore the katha in her name. Therefore, I answer issue no.4 to 6 in the negative.
14. ISSUE NO.7: It is the specific case of the defendants is that before the institution of the suit against the defendants, the plaintiff has to give a notice under Section 482 of KMC Act 1976. As per Section 482 of Karnataka Municipal Corproation Act, no suit shall be instituted against the corproation or any municipal authority, Corporation officer or servant or any person acting under the directions of 35 CT0028_O.S._68_2003_Judgment_.doc .
the same in respect of any act done in pursuance or in execution or intended execution of this Act or any rule by law...........................so delivered or left. Further, as per Section 482(1) (A), if at all a party wants an urgent and immediate relief against the corporation a suit may be filed with the leave of the court without serving any notice as required by the sub section (1), but the court shall not grant the relief in the suit whether interim or otherwise except after giving to the Corporation, officer or servant a reasonable opportunity of showing cause in respect of the relief prayed for the suit. In this regard, advocate for defendants vehemently argued that no notice has been issued to the defendants before filing of this suit. However, on going through the plaint and order sheet, it is clear that the plaintiff has not issued a notice against the defendants under Section 482 of the KMC Act. However filed application under Section 482(1) (A) of the Act to grant leave to institute the suit in view of 36 CT0028_O.S._68_2003_Judgment_.doc .
the seeking of the urgent and immediate relief against the demolition of the suit schedule property. So, it is clear that though they have filed application under Section 482 (1) (A) of the KMC Act, the relief is only limited to the extent of demolition of the suit schedule property and not with regard to other aspects as they have claimed in the suit. However, the plaintiff contended that as threat of demolition of the suit building was imminent and sudden and there was no vocation for the plaintiff to issue statutory notice under Section 482 of KMC Act. As per the plaintiff, an application seeking the leave was filed along with the plaintiff seeking the dispensation of the notice under Section 482 of the KMC Act. Moreover, in view of the liberty granted by the Hon'ble High Court as per Ex.P34, the plaintiff has to take steps within four weeks from the date of said order. So, the plaintiff had no other option except filing application for dispensation of the KMC Act and also under Section 37 CT0028_O.S._68_2003_Judgment_.doc .
80(2) of the CPC. On perusal of court records, it is found that the plaintiff has filed application under Section 482 (1) (A) of KMC Act for the relief only with regard to demolition of the suit schedule property. This relief is only restricted with regard to demolition of suit schedule property and not with regard to other reliefs claimed by the plaintiff in their suit. Though this court initially granted the leave to file the suit against the defendants, the statutory notice under Section 482 of the KMC Act is mandatory in order to file a suit against the defendant. In this regard, our own High Court as well as Hon'ble Supreme Court of India has rightly said that issue of notice under Section 482 of the KMC Act is mandatory and non- compliance of the same will be result in rejection of the plaint. Hence, under the above circumstances, in the present case, the plaintiff though filed application under Section 482 (1) (A) of KMC Act, it is not for all the reliefs sought by him in the plaint. Therefore, 38 CT0028_O.S._68_2003_Judgment_.doc .
without much discussions, I answer issue no.7 in the affirmative.
15. ISSUE NO.8: In view of the discussions made in the above issues, I need not answer issue no.8.
16. ADDITIONAL ISSUE NO.1: In view of the discussions made in the above issues, it is clear that the plaintiff has not established her lawful right over the suit schedule property. Further, the title of the plaintiff is also clear. No steps have been taken by them in order to revoke the katha to her name. Moreover, the suit itself is bad for non-compliance of statutory notice under Section 482 of KMC Act. Further, taking into consideration the fact and circumstances of the case, I am of the opinion that the suit is not maintainable against defendant no.6 and 7 as they have contended. Hence, without much discussions, I answer additional issue no.1 in the affirmative.
39 CT0028_O.S._68_2003_Judgment_.doc .
17. ISSUE NO. 9: From my above discussions and reasoning, the suit of the plaintiff is liable to be dismissed. In the result, I pass the following:
The suit of the plaintiff is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs. Draw decree accordingly.
*** [Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 20th day of December 2018.] [PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Kalaiah
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 Smt. Chandrakantha 40
CT0028_O.S._68_2003_Judgment_.doc .
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 GPA executed by plaintiff Ex.P2 Sale deed dated 8/6/1989 Ex.P3 Khata endorsement Ex.P4 to Tax paid receipts Ex.P8 Ex.P9 Sale deed dated 22/3/1979 Ex.P10 Khata certificate Ex.P11 Notice Ex.P12 to Tax paid receipts Ex.P15 Ex.P16 Receipt Ex.P17 Encumbrance certificate Ex.P18 Licence issued by BBMP Ex.P19 Sanctioned plan Ex.P20 to Objection certificates issued by Ex.P22 BBMP Ex.P23 Encumbrance certificate Ex.P24 Mortgage deed Ex.P25 Encumbrance certificate Ex.P26 Rough sketch
Ex.P26(a) Location of the suit schedule property.
Ex.P27 C/c sale deed dated 16/8/1921 Ex.P28 Preliminary record Ex.P29 Hissa survey extract Ex.P30 Hissa tippani extract Ex.P31 C/c of atlas Ex.P32 C/c of sketch Ex.P33 Village map Ex.P33(a) Sy.no.67 Ex.P34 C/c order passed in W.P.31320/01 41 CT0028_O.S._68_2003_Judgment_.doc .
Ex.P35
to Photographs
Ex.P39
Ex.P40 C/c of sale deed dated 23.12.1957
Ex.P41 C/c of sale deed dated
17/10/1966
Ex.P42 Khata extract
Ex.P43
to C/c survey enquiry register
Ex.P46
Ex.P47 C/c sale deed dated 26/6/2000
Ex.P48
to Photographs
Ex.P52
Ex.P53 C/c order passed by BBMP
4. List of the documents marked for the
defendants:
Nil.
[PRASHANTHI.G]
XXVII Additional City Civil Judge.
BANGALORE.
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is hereby dismissed.
Under the facts and
circumstances of the case,
there is no order as to costs.
Draw decree accordingly.
[PRASHANTHI.G]
XXVII Additional City Civil Judge.
BANGALORE.
4 CT0028_O.S._68_2003_Judgment_.doc 3 .
4 CT0028_O.S._68_2003_Judgment_.doc 4 .