Bangalore District Court
Sri.H.Chandraiah vs Smt.Mahalakshmamma on 12 February, 2015
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY (CCH-6)
This the 29th day of January, 2015
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
24th Addl. City Civil & Sessions
Judge,
Bangalore City.
O. S. No.7236/2008
PLAINTIFF: Sri.H.Chandraiah,
S/o late H.Hanumanthappa,
Aged about 65 years,
R/at Old No.9, New No.24,
8th Cross, 10th Main,
Shivanagar, Rajajinagar,
Bangalore- 560 010.
(By Sri.R.Ramachandrappa, Advocate)
Vs.
DEFENDANTS 1. Smt.Mahalakshmamma
: W/o Sri. Gangaiah,
Aged about 30 years.
2. Sri.Chikkarangaiah,
S/o late Rangaiah,
Aged about 60 years,
C/o Uday Cable.
Both are R/at No.45,
8th Cross, 10th Main Road,
Shivanagar, Rajajinagar,
Bangalore- 560 010.
(By Sri.T.S.Mahabaleswara, Advocate)
2
O.S.7236/2008
Date of institution of the suit: 31.10.2008
Nature of the suit: Injunction Suit
Date of commencement of 06.09.2010
recording of evidence:
Date on which Judgment was 28.01.2015
pronounced:
Duration Day Month Years
s s
JUDGMENT
The instant suit filed by the plaintiff against the defendants is one for permanent injunction restraining the defendants, their elements, servants, supporters, coolies, agents, or any one claiming through or under them in any way from putting up of any construction and put up any illegal encroachment towards the southern portion of the suit schedule property measuring to an extent of East to West 40 feet and North to South 3½ feet; for permanent injunction restraining the defendants, their elements, supporters coolies, agents family members or any one claiming through or under them 3 O.S.7236/2008 in any way from interfering with the peaceful possession and enjoyment of the suit schedule property and also for costs and such other reliefs.
2. The plaintiff has stated that he is the absolute owner in possession and enjoyment of the suit schedule property bearing Sy.No.15/2, measuring to an extent of East to West 90 feet and North to South 20 feet including the passage measuring East to West 90 feet and North to South 5 feet for ingress and egress to his property situated at BBMP Ward No.20, Shivanagar, Rajajinagar, Bangalore-10, which is morefully described in the plaint schedule.
3. According to the plaintiff, he acquired the suit schedule property by virtue of registered partition deed dated 2.11.2004, which is registered in the office of the Sub-Registrar as per the particulars shown in para-4 of the plaint. He further stated that after acquiring the suit property from his family members as per the said registered partition deed, 4 O.S.7236/2008 the plaintiff is in possession and enjoyment of the suit property as its absolute owner. He further stated that after acquiring the schedule property from his family members, he obtained Encumbrance Certificate. Certified copies of registered partition deed dated 2.11.2004 and Encumbrance Certificate are also produced.
4. The plaintiff further stated that his father late Hanumanthappa son of late Doddahanumaiah has acquired the suit property with other properties from his ancestors. On 16.2.1983 late Hanumanthappa executed panchayath palupatti among his three sons by name Puttaiah, Rajanna and Chandraiah the plaintiff in this case. He also produced panchayath palupatti executed by his father. He further stated that he also produced Akar band in respect of the suit property issued by ADLR, No.1 City Survey. The plaintiff also produced Ration Card and Voters list. 5
O.S.7236/2008
5. He further stated that he has got prima facie case, as he is the absolute owner in possession and enjoyment of the suit property and the balance of convenience also lies in his favour. In para-6 of the plaint, he also pleaded the alleged interference of the defendants, wherein he has stated that the defendants with their supporters and agents illegally interfering and trying to put up construction towards southern side of the suit property and trying to encroach the suit property towards southern side measuring East to West 40 feet and North to South 3½ feet. He further stated that he also obtained electrical connection and water connection to the suit property.
6. In para-7 of the plaint, he pleaded the alleged interference of the defendants with regard to the suit property measuring East to West 90 feet and North to South 5 feet of the suit property on 20.10.2008 at about 10.30 am and on 30.10.2008 at 6 O.S.7236/2008 about 3.00 pm. He further stated that though he lodged police complaint, but the police did not receive the complaint and directed the plaintiff to approach the civil Court.
7. In para-8 of the plaint, he also pleaded cause of action and praying this Court to decree the suit as prayed for.
8. The plaint schedule reads as follows:
All that piece and parcel of the property bearing Sy.No.No.15/2 measuring to an extent of East to West 90 feet and North to South 20 feet (including East to West 90 feet and North to South 5 feet passage) situated at Ward No.20, Old No.9 New No.24, Bangalore Mahanagara palike, Shivanagar, Rajajinagar, Bangalore- 560 10 bounded on East by: Road West by: Property of Maraligowda, North by: 5 feet passage and Property of Kempahanumaiah;
South by: Property of Smt.Ramakka.
9. The defendants filed written statement denying all the plaint averments and further contended that 7 O.S.7236/2008 the suit is not maintainable and the same is filed to harass the defendants. It is false to say that the plaintiff is the absolute owner of the suit property bearing Sy.No.15/2 measuring East to West 90 feet and North to South 20 feet including East to West 90 feet and North to South 5 feet passage for ingress and egress to his property, situated within the BBMP limits i.e. Ward No.20, Shivanagar, Rajajinagar, Bangalore. It is also denied that the plaintiff is the owner of the property measuring North to South 5 feet passage for ingress and egress to his property as stated above. He also stated that infact 5 feet passage is the road/path for public at large and the same is being used for more than 35 to 40 years.
10. Defendants further stated that the said 5 feet public road is being used by the neighbourers and the sanitary pipes, water pipes and electric cables also passes through the said passage only. Such being the fact, the plaintiff had objected for the use 8 O.S.7236/2008 of the road by putting up wall in the middle of the road and obstructed the defendants and the public at large, which also compelled the defendants to lodge the complaint before the Corporation authorities. He further stated that the Corporation authorities inspected the spot and verified the title deeds of the defendants and demolished the wall put up by the plaintiff in the middle of the road. The BDA also issued possession certificate in favour of the defendants' vendor, which clearly shows the existence of 5 feet road, which is for public use. The plaintiff has no right, title or interest over the said passage.
11. He further stated that the defendants also denied the fact that the plaintiff acquired the suit property as per the registered partition deed dated 2.11.2004 and the defendants are not admitted the fact that the plaintiff is in possession and enjoyment of the suit property as its absolute owner 9 O.S.7236/2008 subsequent to the partition. The plaintiff is powerful person capable of managing the documents for the purpose of this case. They further stated that it is not within their knowledge that the plaintiff's father acquired the suit property from his ancestors. On 16.2.1983 late Hanumanthappa had executed the panchayath palupatti among his three sons i.e. Puttaiah, Rajanna and Chandraiah-the plaintiff in this case. It is also not admitted by the defendants about the panchayath palupatti executed by late Hanumanthappa in favour of his three sons including the plaintiff. The documents that are produced by the plaintiff are created for the purpose of this case to obtain an order of injunction from the hands of this Court.
12. The defendants further stated that the plaintiff has not made out any prima facie case, since the plaintiff is not the absolute owner of the entire schedule property as alleged. The balance of 10 O.S.7236/2008 convenience lies in favour of the defendants, but not in favour of the plaintiff. Defendants also specifically denied their alleged interference as stated by the plaintiff in the plaint. It is also false to say that the defendants have no manner of right, title or interest over the suit property and they are illegally trying to put up construction and those facts are all denied as false and baseless. The defendants are putting up construction after obtaining sanctioned plan being absolute owners.
13. The defendants also stated hat they are the absolute owners of the property bearing No.374/N carved out in Sy.No.15/1 situated at 3rd Phase, 1st stage, West of Chord Road, Shivanagar, Bangalore, as the same was purchased by the 1st defendant from one Lakshmamma as per the registered sale deed. The defendants also obtained sanctioned plan and putting up construction in their property. The plaintiff without having any manner of right is 11 O.S.7236/2008 obstructing the construction with a malafide intention. There is no bonafides in the claim and contention of the plaintiff. They also resisted the suit on various grounds and pray for dismissal of the suit with costs.
14. Based on the above pleadings of the parties, my learned predecessor has framed the following issues:
1. Whether plaintiff proves that he is in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves that the defendants are trying to encroach his property towards the southern portion of the suit schedule property measuring East-West 40 feet and North-South 3½ feet?
3. Whether the plaintiff is entitled for relief of permanent injunction as sought for?
4. What order or decree?
15. In support of the case of the plaintiff, the power of attorney holder of the plaintiff is examined 12 O.S.7236/2008 PW.1 and got marked Ex.P.1 to P.68. Ex.D.1 is marked in the cross-examination of PW.1 by confronting the said document and accordingly closed the evidence of the plaintiff.
16. The 2nd defendant is examined as DW.1 and got marked Ex.D.2 to Ex.D.11. The 1st defendant is examined as DW.2 and got marked Ex.D.12 to Ex.D.18. Two more witnesses are examined on behalf of the defendants as DW.3 and DW.4. DW.3 is cross-examined, but DW.4 is not tendered for cross-examination. Accordingly, closed the evidence of defendants.
17. Learned counsel for the plaintiff filed written arguments and also relied upon the following decisions:
1. 2004(4) KCCR 2327 k.Doddanagowda Vs. V.Ramachandra Reddy.
2. 2010(5) Kar.L.J. 522 K.Manju Vs. Smt. Gowramma.13
O.S.7236/2008
3. 2004(4) KCCR 2323 Balappa Narasappa Karade Vs. Govind Narasappa karade, (deceased) by LRs.
4. AIR 2012 HIMACHAL PRADESH 101 Jagat Ram Vs. Karmi Devi & ors.
5. AIR 2012 MADHYA PRADESH 153 Kaladevi @ Kamla Devi Vs. State of M.P. through Collector & others.
6. AIR 2004 SUPREME Court 4609 Ramegowda (D) by L.Rs. Vs.M.varadappa naidu (D) by L.Rs. and another.
7. AIR 2013 MADHYA PRADESH 180 Sohan Yadav Vs. Smt.Mehmuda & another.
8. 2012(40) AIR Kar R.842 Jayarama Vs. A.S.Yashoda.
9. AIR 1995 KARNATAKA 238 Kallappa Rama Londa Vs. Shivappa Nagappa Aparaj and others.
10. AIR 2013 (NOC) 256 (BOM) Francisco Xavier Ferrao Vs. Prof. Eilomeno Bonifacio Defendant Viera Menezes & Ors.
11. 2010 (5) KCCR 4194 K.Manju Vs. Smt.Gowramma.
18. Heard the arguments of learned counsel for the defendants.
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O.S.7236/2008
19. Perused the written arguments of plaintiff, perused the records and also perused decisions.
20. My findings on the above issues are:
Issue No.1: Partly Affirmative.
Issue No.2: Negative.
Issue No.3: Negative.
Issue No.4: As per the final order
for the following;
REASONS
21. Issue No.1 and 2: Since these two issues are interlinked with each and require common discussion of facts, they have taken together for discussion to avoid repetition of facts.
22. When the plaintiff pleads that he is in lawful possession of the plaint schedule property as on the date of the suit and when the plaintiff pleads that the defendants are trying to encroach his property towards southern portion of the schedule property measuring East to West 40 feet and North to South 15 O.S.7236/2008 3½ feet, the entire burden is on the plaintiff to prove Issue No.1 and 2.
23. In support of the case of the plaintiff, he relied upon the documents Exs.P.1 to P.68. Before discussing the other documents, for better appreciation of the documentary evidence, it is better to discuss Ex.P.4 at the first instance, wherein this Ex.P.4 is a partition deed dated 16.2.1983 executed by the father of the present plaintiff by name Hanumanthappa in favour of his sons i.e. H.Puttaiah, H.Rajanna and H.Chandraiah, wherein 'A' schedule property was allotted to the share of his elder son Puttaiah, 'B' schedule property was allotted to the share of his second son H.Rajanna and 'C' schedule property was allotted to the share of one H.Chandraiah- the plaintiff in this case. In this document Ex.P.4, the plaintiff was allotted several properties including the property bearing Sy.No.15/2, which is shown in the 3rd item in the 'C' 16 O.S.7236/2008 schedule i.e. Sy.No.15/1 of Shivanahalli village, which is bounded by East by road, West by property of Lakkappa, North by property of one Kempaiahnavara Chikkahanumaiah and towards South property that was allotted to 'B' scheduldar.
The measurement of this property is shown as East to West 90 feet and North to South 20 feet, which consists of well, which was allotted to the share of 'B' and 'C' scheduldars. On careful perusal of the schedule of the said property of Sy.No.15/1, the existence of passage in question is not at all shown on any side of the said property as shown in the documentary evidence Ex.P.2. In Ex.P.2, so also in the plaint schedule, the disputed land is shown as Sy.No.15/2, but however in Ex.P.4 the property allotted to the plaintiff is shown as Sy.No.15/1. The western and northern boundary shown in Ex.P.4 do not tally with the western and northern boundary shown in the plaint schedule, so also in Ex.P.2. 17
O.S.7236/2008
24. Ex.P.2 is another certified copy of the registered partition deed dated 2.11.2004 executed between the sons of late Hanumanthappa i.e. Puttaiah, Ramakka wife of H.Rajanna and H.Chandraiah the plaintiff in this case, wherein 'A' schedule property was allotted to the share of H.Puttaiah, 'B' schedule property was allotted to the share of Smt.Ramakka wife of H.Rajanna and 'C' schedule property was allotted to the share of H.Chandraiah. The relevant entry is found in page-12 of Ex.P.2, wherein among other properties, Sy.No.15/2 was also allotted to the share of the present plaintiff, which is now in dispute in the plaint schedule. The measurement of the property is shown as East to West 90 feet and North to South 20 feet, which consist of asbestos sheet roofed house. The boundaries are shown as East by road, West by property of Maralegowda, North by passage left by the sharers measuring 5 feet in width and thereafter the property of one Kempahanumaiah and 18 O.S.7236/2008 South by property of Ramakka i.e. 'B' scheduldar.
25. On careful perusal of Ex.P.2, the boundary is given for the entire extent of 90X20 feet, but in the plaint schedule, the plaintiff goes to the extent of saying that Sy.No.15/2 measuring East to West 90 feet and North to South 20 feet including 90 feet and North to South 5 feet passage. Even in this plaint schedule also, the very same boundaries are furnished as shown in Ex.P.2. If really if there was any passage on the northern side, which is left by the father of the plaintiff, there was no impediment for the present plaintiff and his brothers to incorporate the same in the earlier partition deed of 1983, which is marked in this case as per Ex.P.4. In Ex.P.2, towards North, it is shown as 5 feet passage left by the sharers and thereafter property of one Kempahanumaiah and it appears that the said Kempahanumaiah has not been examined for the reasons best known to the plaintiff, if he is alive, to 19 O.S.7236/2008 show that the passage in question is a part and parcel of plaint schedule property. Even in Ex.P.2, there was no exact measurement of the passage in question as shown in the plaint schedule.
26. Ex.P.16 is the rectification deed dated 12.01.2005 executed between H.Puttaiah, Ramakka, and Plaintiff in this case. The document executed as per Ex.P.16 reveals that in the said rectification deed i.e. second item of the 'C' schedule property, there has been rectification of the boundary towards Northern side i.e. in respect of Sy.No 15/2 measuring East to West 90 feet North South 20 feet and boundary of the second item of the 'C' schedule is shown as East by road, West by Maralisiddegowda, towards North by passage left by the sharer to an extent of 5 feet wide and thereafter the property of one Kempaiah and South by share allotted to Ramakka i.e. 'B' Scheduledar. In Ex.P.2 towards North it is shown as 5 feet passage left by 20 O.S.7236/2008 the sharers and thereafter property of one Kempahanumaiah, but in Ex.P.16, towards North of Sy.No.15/2, it is shown as passage left by sharer 5 feet wide and thereafter property of one Kempaiah. From this, it is crystal clear that the northern boundary of Sy.No.15/2 varies from Ex.P.2 with that of Ex.P.16.
27. Again Ex.P.67 is also one more rectification deed dated 14.2.2010 executed between the very same persons i.e. H.Puttaiah, Ramakka and the plaintiff Chandraiah, wherein the parties rectified the northern boundary again in respect of Sy.No.15/2 of Shivanahalli Village and in this Ex.P.67, towards North it is shown as property of one Kempaiah. However 5 feet vide passage as shown in Ex.P.2 and Exp.16 has been left out on the northern side of Sy.No.15/2 in Ex.P.67. It is worth to mention that Ex.P.2 partition deed of the year 2004, Ex.P.16 rectification was of the year 2005 i.e. after lapse of 21 O.S.7236/2008 one year. Ex.P.67 is the second rectification deed is of the year 2010 i.e. after lapse of six years from the date of Ex.P.2. From this, it is crystal clear that from document to document, parties goes on changing the boundaries i.e. northern boundary according to their whims and fancies and in my opinion, it is only an after thought.
28. Ex.P.1 is the power of attorney executed by the plaintiff in favour of one Suresh, wherein there is no specific authorization authorising the special power of attorney to depose in this case. However, SPA holder was authorised to though all deeds and things shown in Ex.P.1. Ex.P.3 is the Encumbrance Certificate. Ex.P.5 is the tippani copy of Sy.No.15/1, 15/2. Ex.P.6 to P.10 are the electricity bills. Ex.P.11 to Ex.P.15 are the demand notice issued to the plaintiff from BWSSB seeking payment of water charges. Ex.P.17 is the certified copy of the khatha extract issued by BBMP, which shows that the 22 O.S.7236/2008 plaintiff is the holder khatha along with Ramakka in respect of new property No.34. The site measurement is shown as 2250 square feet, constructed area is shown as 800 square feet.
29. Ex.P.18 to Ex.P.20 are the Encumbrance Certificates in respect of Sy.No.15/2 measuring 90X20 feet. Ex.P.21 to Ex.P.23 and Ex.P.25 are the electricity bills issued in the name of the plaintiff. Ex.P.24 is the bill issued by BWSSB.
30. Ex.P.26 is the receipt for having paid electricity charges. Ex.P.27 is the electricity bill. Ex.P.28 and Ex.P.29 bills issued from BWSSB in the name of the plaintiff Chandraiah. Ex.P.30 to Ex.P.36 again demand notice issued by BWSSB to the plaintiff demanding the plaintiff to pay the water consumption charges. Ex.P.37 to Ex.P.42 are again certified copies of demand notice from BWSSB to the plaintiff calling upon the plaintiff to pay water 23 O.S.7236/2008 consumption charges as shown in the demand notice. Ex.P.43 is the receipt for having paid electricity consumption charges by the present plaintiff. Ex.P.44 to Ex.P.46 are again the demand notice issued by BWSSB calling upon the plaintiff to pay the water consumption charges as per the particulars shown in Ex.P.44 to Ex.P.46.
31. Ex.P.47 to Ex.P.52 are the bills issued from BESCOM to the plaintiff calling upon the present plaintiff to pay the Electricity Consumption Charges as per the particular shown in Ex.P.47 to Ex.P.52. Ex.P.53 is the Voter ID card issued from Election Commission of India which at best shows the residential address of the plaintiff. Ex.P.54 is the particulars furnished by BWSSB dated 06.02.2010 in respect of the application filed by the present plaintiff under which RTI. BWSSB has specifically stated that as per the false complaint filed by the 1st defendant and the other publics stating that 24 O.S.7236/2008 compound was put-up across the public road, accordingly they have demolished the said compound and further stated that as per the documents produced by the plaintiff and on verification of the said document, they came to know that the property in question belongs to the present plaintiff.
32. Ex.P.55 is the certified copy of the judgment and decree in O.S.No.985/2009 dated 18.06.2010 filed by the present plaintiff against the Commissioner and Asst. Engineer, BBMP for the relief of permanent injunction which came to be decreed wherein the defendants in this case are not the parties in O.S. No.985/2009. In addition to that any judgment and decree i.e. passed in O.S. No.985/2009 binds only the parties therein since that suit is only for the relief of permanent injunction.
25
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33. Ex.P.56 is the alleged agreement dated 14.11.2008 that has been executed by the 1st defendant in favour of the plaintiff wherein the contents shows as if the 1st defendant handed over the possession of the vacant space measuring 40 X 3 feet and she further undertaken to execute the sale deed in favour of the plaintiff in respect of the vacant space measuring 40 X 3 feet. It appears that no such sale deed has been executed by the plaintiff. This is also in view of the fact that the plaintiff has not produced any such sale deed said to have been executed by the 1st defendant in respect of the vacant passage. Exs.P.57 and Ex.P.58 are the certified copies of khatha certificate and khatha extract which reveals that plaintiff Chandraiah is shown to be the khathathedar of the property bearing PID No.20-20-14 and the measurement of the site is shown as 992.8 Sq.ft and constructed area 750 sq.ft in respect of the New property No.
14. 26 O.S.7236/2008
34. Exs.P.59 and Ex.P.60 both are certified copies of khatha certificate and khatha extract which revels that plaintiff is shown to be the holder of the khatha along with Ramakka in respect of property bearing No.PID 20-35-34 i.e. in respect of the new property bearing No.34.
35. Exs.P.61 to Ex.P.66 are the tax paid receipts paid by the plaintiff Chandraiah along with Ramakka in respect of the property bearing No.20-35-34 for the Assessment year 2008-2009 to 2011-2012.
36. Ex.P.68 is the certified copy of the sale deed dated 27.01.2003 executed by one Lakshmamma in favour of the first defendant in respect of property bearing No.374/N measuring 12.19 meters East to West and 5.63 metres North to South as per the boundaries shown in Ex.P.68.
27
O.S.7236/2008
37. On the other hand, defendants relied upon the documents Exs.D.1 to Ex.D.19. Ex.D.1 is the photograph which shows existing state of affairs at the spot which also reveals the existence of passage in question between two properties.
38. Ex.D.2 is the certified copy of the re-grant notice issued from BDA in the name of Smt. Lakshmamma, the vendor of the 1st defendant requesting the 1st defendant's vendor to deposit the amount in respect of property bearing site No. 374/N.
39. Ex.D.3 is the endorsement issued by the BDA on 30.10.2002 in favour of Smt. Lakshmamma, the vendor of the 1st defendant wherein, BDA has instructed the concerned authorities to change the khatha in the name of Smt. Lakshmamma in respect of property bearing site No. 374/N. Ex.D.4 is the certified copy of the Revenue Surveyor report which 28 O.S.7236/2008 is in respect of site No.374/N and the measurement (BDA) of the property is shown as 40'X18.6' and the measurement of the property that was sold is also shown as 40'X15'. Ex.D.5 is the document prepared by BDA dated Nil for having measured site No.374/N and the measurement of property is shown as East to West 12.19 meters and North to South 4.57 meters. The sketch is also prepared which reveals that towards East of Site No.374/N, a passage is shown measuring 10 feet wide. Ex.D.6 and Ex.D.7 both are certified copy of Khatha extract and khatha certificate which reveals that the 1st defendant Maha Lakshmamma is shown to be the owner of the property bearing No.374/N and the measurement of the site is shown as 68.63 sq.ft and built up area is shown as 500 sq.ft. The 1st defendant is also shown to be the khatedar of the property No.PID 20-34-374/N. Ex.D.8 is endorsement issued by BDA dated 08.02.2011 and this endorsement has been issued on the application filed by one Chikka 29 O.S.7236/2008 Rangaiah. Ex.D.9 is the requisition given by the 1st defendant to the Asst. Executive Engineer, BBMP on 09.12.2010 requesting concerned authorities to inspect the passage in question. Ex.D.10 is the particulars given by the BWSSB on 28.12.2010 addressing to the 1st defendant stating that their exist the water connection to the first defendant's house in the passage in question which is now in dispute between plaintiff and first defendant. Ex.D.11 is the extract of DCR, I stage. Ex.D.12 is the application given by the plaintiff addressed to the Asst. Commissioner requesting him to issue possession certificate and sale deed in his favour.
40. Ex.D.13 is the similar application given by the plaintiff to the Asst. Commissioner, BDA requesting him to rectify the mistake that was committed while mentioning the measurement in the sale deed of Lakshmamma and also prays the Commissioner to reject the application filed by the 1st defendant and her endorsements of Lakshmamma. Ex.D.14 is 30 O.S.7236/2008 again a letter given by the plaintiff to Asst. Commissioner requesting the Commissioner to rectify the mistake that was committed by the concerned authorities to delete the recitals of passage and for issue of fresh possession certificate. Exs.D.15 and Ex.D.16 are again the applications filed by the plaintiff to the Asst. Commissioner, BDA requesting the Commissioner to furnish information about the action taken in this regard on the application filed by him earlier. Ex.D.17 is the report prepared by the BDA authorities for having measuring site No.374/P which also discloses the boundaries of the said site bearing No.374/P.
41. Ex.D.18 is again the report submitted by Revenue Surveyor in respect of site bearing No.374/P and BDA measurement is shown as 28'X30' and at column No.4 property that was sold is shown as 30'X30' feet.
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42. Ex.D.19 is again the report submitted by surveyor in respect of site bearing No.374/O which measures 20'X90'.
43. The Power of attorney holder of the plaintiff who has examined in this case retreated the plaint averments in his chief-examination affidavit.
44. However PW.1 in his cross-examination has stated that he has produced partition deed. But he has not produced any document to show that property in question is his ancestor property. However, PW.1 has admitted that nobody will move in the western portion of the schedule property which measures 3 1/2 X40' feet. He also admitted in the cross-examination that Ramakka has got right over the property in the 20'X90' feet. He further admitted that similarly plaintiff Chandraiah also got right over the property measuring No.20'X90' feet. However on careful perusal of cross-examination of PW.1 he is deposing before the Court contrary to the 32 O.S.7236/2008 contents of recital found in Ex.D.10. Very strangely PW.1 admitted that he has not mentioned in the plaint schedule stating that their exist 5' feet passage. However, he goes to extent of saying that property measuring 20'X90' feet includes the said passage in question which measures 5 feet. However he also admitted that he has not mentioned so in the rectification deed.
45. The 2nd defendant is examined as DW.1 and the first defendant is examined as DW.2 wherein both of them have retreated the written statement averments in their chief-examination affidavit. However, DW.1 I in his cross-examination has admitted that the first defendant is his daughter and further stated the measurement of the property that was purchased by the first defendant is East to West 40' feet and North to South is 15' feet. On careful perusal of cross-examination of DW.1 nothing worth is elicited in his cross-examination to show that the 33 O.S.7236/2008 alleged passage in question measuring 5X90' feet is a part and parcel of the plaint schedule property and further to show that plaintiff has left the passage measuring 5'X90' feet for the exclusive use of the plaintiff alone.
46. Strongly DW.1 in his cross-examination admitted that if decree is passed in respect of the passage measuring East to West 40' feet and North to South 3.5' feet, he will not be put to any hardship. However, plaintiff himself has failed to produce any convincing document to show that passage in question is a part and parcel of the plaint schedule property.
47. DW.2 in the cross-examination also stated that their exist 5 feet passage towards the southern side of the property and thereafter their exist plaintiff property. She also admitted that except the plaintiff no other person have got any right over plaint 34 O.S.7236/2008 schedule property. She also admitted that she has no right over the plaint schedule property. She goes to extent of saying that on account of the torture given by the plaintiff she was forced to execute Ex.P.56. She further stated that since the plaintiff assured the first defendant that he will not abstract the 1st defendant in using the passage in question she was constrained to execute Ex.P.56 agreement.
48. One more witness is also examined by the 1st defendant and he has been examined for the limited purpose to show that a passage in question has been left for the common use and enjoyment of the public at large. But DW.3 in his cross-examination admitted that he cannot say the boundaries of the property that belongs to the 1st defendant.
49. One more witness is also examined as DW.4 but he has not been tendered for cross-examination. 35
O.S.7236/2008 As such it is unsafe to rely upon the incomplete evidence of DW.4.
50. On careful perusal of the plaint schedule, no separate schedule has been furnished by the plaintiff indicating the passage separately as claimed by the plaintiff in the plaint.
51. On careful perusal of the plaint in para.7 plaintiff alleged the interference of the defendant's towards the southern side of the plaint schedule property. But, the 5 feet passage is shown North side of the plaint schedule property.
52. Plaintiff never stepped into witness box. But on the other hand, he authorised the Power of attorney holder to depose in this case. This is also in view of the fact that it is only for the plaintiff to say about the correctness or otherwise of the contents of Ex.P.2, Ex.P4, Ex.P.16 and Ex.P.67. The electrical bills and water bills which are 36 O.S.7236/2008 produced by the plaintiff at best shows that plaintiff has got water connection and electricity connection to his house and those documents in my opinion is nothing to do with the dispute passage in question.
53. Plaintiff has filed this suit only for the relief of permanent injunction. But his title over the disputed passage is questioned by the defendant's. As such plaintiff has to seek the relief of declaration in respect of the passage in question by producing all the title deeds.
54. In the prayer column also plaintiff has sought for the relief of permanent injunction for the entire extent of 20'X90' feet which according to the plaintiff includes the passage in question. During the pendency of the suit plaintiff also filed I.A No.5 u/o 6 Rule 17 CPC seeking amendment of the plaint which came to be rejected. The proposed amendment in my opinion is only an after thought and amendment application was filed only after execution of Ex.P.67 37 O.S.7236/2008 which came into existence during pendency of suit. Except the partition deed and rectification deed, plaintiff has not produced any convincing documents to show that he is in settled possession of the property in question i.e. passage.
I also perused the decisions relief upon by learned counsel for the plaintiff and those decisions in my humble view will not help the plaintiff in any way, considering the facts and circumstances of the present case and also in view of the said discussions made above. Hence on careful perusal of the oral and documentary evidence available on record, the plaintiff partly proved that he is in possession of the plaint schedule property excluding the disputed passage in question. However, plaintiff failed to prove the interference of the defendant's on the southern side of the suit property measuring East to West 90 feet and North to South 5 feet and accordingly Issue No.1 is answered 'Partly in the 38 O.S.7236/2008 affirmative' and Issue No2 is answered in the negative.
55. Issue No.3: Though plaintiff partly proved Issue No.1 with regard to his lawful possession over the plaint schedule property excluding the passage in question, but the plaintiff failed to prove the alleged interference of the defendants as stated in the plaint. As such the plaintiff is not entitled for the relief of permanent injunction as prayed for and accordingly Issue No.3 is also answered in the 'Negative'.
56. Issue No.4: In view of the findings on issue No.1 to 3, I proceed to pass the following:
ORDER The suit is dismissed with costs. (Dictated to the Judgment Writer, computerized print out taken thereof is corrected, signed and pronounced by me in Open Court on this the 29th day of January, 2015).
(S.SRIDHARA) 39 O.S.7236/2008 XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1: Sri. R.Suresh List of documents marked for the plaintiff:
Ex.P.1: Power of attorney.
Ex.P.2: Certified copy of the partition deed dated
2.11.2004.
Ex.P.3: Encumbrance Certificate.
Ex.P.4: Notarised copy of unregistered partition
deed.
Ex.P.5: Sketch.
Ex.P.6 to Electricity bills.
P.15:
Ex.P.16: Certified copy of Rectification deed dated
12.1.2005.
Ex.P.17: Khatha extract.
Ex.P.18: Encumbrance Certificate.
Ex.P.19: Certified copy of Encumbrance
Certificate.
Ex.P.20: Certified copy of Encumbrance
Certificate.
Ex.P.21 to Electricity bills.
P.36:
Ex.P.37 to Water bills.
P.46:
Ex.P.47 to Certified copy of Electricity Bills.
P.52:
Ex.P.53: Certified copy of Voter ID Card.
Ex.P.54: Application given under RTI Act.
Ex.P.55: Certified copy of Judgment and Decree in
O.S.985/2009.
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O.S.7236/2008
Ex.P.56: Agreement.
Ex.P.57: Khatha Certificate.
Ex.P.58: Khatha extract.
Ex.P.57: Certified copy of the khatha extract.
Ex.P.58: Certified copy of the khatha certificate.
Ex.P.59: Certified copy of the khatha extract.
Ex.P.60: Certified copy of the khatha certificate.
Ex.P.61 to Certified copies of tax paid receipts. P.66:
Ex.P.67: Rectification deed dated 4.2.2010 (marked as subject to objection). Ex.P.68: Certified copy of the sale deed dated 27.1.2003.
List of witnesses examined for the defendants:
DW.1: Chikkarangaiah. DW.2: Mahalakshmamma. DW.3: C.Eranna. DW.4: Gangadhara Murthy.
List of documents marked for the defendants:
Ex.D.1: Photograph.
Ex.D.2: Re-allotment letter.
Ex.D.3: Endorsement given by BDA.
Ex.D.4: Survey report and copy of sketch.
Ex.D.5: Report given by BDA regarding exact
measurement.
Ex.D.6: Khatha extract.
Ex.D.7: Khatha certificate.
Ex.D.8: Endorsement given by BDA.
Ex.D.9: Copy of letter given by 1st to Asst.
Executive Engineer.
Ex.D.10: Letter from BWSSB to 1st defendant.
Ex.D.11: Copy of sketch issued by Asst. Director,
BDA.
Ex.D.12 Copy of the applications given by
to D.16: plaintiff.
Ex.D.17: Report given by BDA regarding exact
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O.S.7236/2008
measurement.
Ex.D.18 & Report of revenue survey.
Ex.D.19:
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.