Bangalore District Court
P. Balasubramanyam vs (1) P. Natarajan on 28 August, 2019
IN THE COURT OF THE LXXII ADDL. CITY
CIVIL & SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 28th day of August, 2019.
O.S.No.17675/2005
Plaintiff:- P. Balasubramanyam,
S/o Late Permul,
Aged about 50 years,
R/at No.57/1,
Kadiranapalya,
Indiranagar,
Bangalore-560038.
[By N. Srinivas-Advocate]
V/s
Defendants:- (1) P. Natarajan,
S/o Late T. Ponnuswamy,
Aged about 65 years,
R/at No.59, Kadiranapalya,
Indiranagar P.O.
Bangalore-560038.
2 OS No.17675/2005
(2) Smt. Valiammal,
D/o Late Ponnaswamy,
Aged about 50 years,
No.59/1, Kadiranapalya,
Indiranagar,
Bangalore-560038.
(3) The Commissioner,
Bangalore City Corporation,
Mayohall, Bangalore,
Bangalore.
[By Sri. V.Prakash- Advocate for D-1
& 2.)
(By Sri. Bathe Gowda K.V.-D-3)
Date of Institution of the suit 28.11.2005
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Declaration & Injunction
for injunction, etc.)
Date of the commencement of
20.11.2018
recording of the Evidence.
Date on which the Judgment was
28.08.2019
pronounced.
Year/s Month/s Day/s
Total duration 13 09 00
LXXII ADDL.CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
3 OS No.17675/2005
JUDGMENT
This is the suit filed by the Plaintiff against the Defendant for the relief of Declaration, Permanent Injunction and Mandatory Injunction. The Plaintiff has claimed relief of Declaration to declare that the passage as per Document No 4 is the common passage as per its measurements; to restrain the Defendant No 1 and his successors from interfering with the common passage; and to remove the wall, sajja and door fixed on the passage.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, he is the absolute owner in peaceful possession and enjoyment of the Property bearing No 59/1, as he has purchased the said property from Nanjundappa as per the Registered Sale-deed dated 08.08.1988. Alongwith the said property he has purchased the passage situate towards the Southernside of the said property from his 4 OS No.17675/2005 vendor, which is shown as the suit schedule property.
Further it is contended by the Plaintiff that property bearing No 59/1 alongwith the suit schedule passage was part of the Main property No 59, which was originally belonging to Sri Ponnaswamy, who had purchased the property bearing No 59, measuring East to West: 46 feet and North to South: 30. The children of said Ponnaswamy, executed a Release Deed dated 16.08.1984, the property bearing No 59/1, measuring East to West: 46 feet and North to South: 25 feet, with a Passage towards the Southernside of the said property, measuring East to West: 46 feet and North to South: 5 feet, came to be released infavour of Valliayamma and Bhagyawati, the daughters of said Ponnaswamy.
Thereafter partition took place inbetween both the sisters- Valliayamma and Bhagyawati and in the said partition, Eastern portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet with passage running East to West measuring East to West: 23 feet and North to South: 5 feet has fallen to the share of 5 OS No.17675/2005 Bhagyawati. Likewise Western portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet, with passage running East to West measuring East to West: 23 feet and North to South: 5 feet has fallen to the share of Valliayamma.
Said Bhagyawati sold her Eastern portion of Property bearing No 59/1 with passage measuring East to West 23 feet and North to South: Towards Easternside 3 feet and Westernside 1feet-06 inches, to Nanjundappa by virtue of a registered sale-deed dated 16.07.1987.
Further the Plaintiff contends that the Defendant Nos 1 & 2 are the brother and sister interse. They are trying to cause interference in the peaceful possession and enjoyment of the property belonging to him, which is purchased by him from Nanjundappa, by blocking the passage situate at the Southernside of his property, by projecting over the said passage, inorder to harass him and force him to sell the said property to them.
6 OS No.17675/2005Further the Plaintiff contends that there is a Drainage belonging to the BBMP authorities towards the Easternside of the property purchased by him from Nanjundappa and the passage situate at the Southernside of his property, joins the said Drainage which is used as a passage, measuring 6 feet width, which joins the main road. By way of amendment, the Plaintiff contends that the Defendant No 1 has putup/constructed the compound wall inbetween the said Southernside passage and the drainage passage, located on the Easternside of his property, during the pendency of this suit, by taking the aid of the Police authorities. Hence prayed to remove the said compound wall; to get cleared the passage, situate at the Southernside of his property- shown as the suit schedule property; to declare the said suit schedule passage as common passage to be used by the Plaintiff and the Defendant No 2 and issue an order of Injunction against the Defendant No 1 or his successors from interfering with the said common passage. Since the Defendants caused obstructions over the said passage, the same was intimated to the Defendant No 3, since the 7 OS No.17675/2005 defendant No 3 did not take any action and since the defendant No 3 has failed to record khata in his name so, he was constrained to file the present suit against the Defendants.
3. Suit summons were issued to the Defendants. Defendants have appeared through their respective counsels on 23.12.2005. The Defendant No 1 has filed his Written Statement on 23.12.2005 and the Defendant No 3 has filed its Written Statement on 23.02.2006. The Defendant No 2 has appeared through her Counsel on 23.02.2006 and has filed her Written Statement on 23.03.2006.
4. The Defendant No 1 has denied all the contentions takenup by the Plaintiff and has specifically contended that the vendor of the Plaintiff has only purchased Eastern portion of the Property No 59/1 and a Passage running East to West, measuring East to West: 23 feet and North to South: towards Easternside 2 feet and Westernside 3½ feet, there is no existence of the Suit Schedule passage as shown by the Plaintiff.
8 OS No.17675/2005Further the Drainage measuring 6 feet, shown by the Plaintiff, to be situated at Easternside, is not in existence. Further contended that the Plaintiff had encroached upon the said passage, so he had filed a suit against him, at OS No 5243/2001. On full fledged trial, the said suit came to be decreed and Mandatory Injunction was issued against the present Plaintiff to remove encroachment. Hence prayed to dismiss this suit, of the Plaintiff.
5. The Defendant No 2 has filed her Written Statement, denying the allegations made by the Plaintiff and has taken same contentions as takeup by the Defendant No 1. Hence prayed to dismiss the suit of the Plaintiff.
6. The Defendant No 3 has filed its Written Statement, denying all the allegations made by the Plaintiff. Specifically contends that the Plaintiff has not issued Notice to it, to effect khata in his name, inrespect of the portion of the property bearing No 59/1. Hence prayed to dismiss the suit of the Plaintiff.
9 OS No.17675/20057. On the basis of the above said pleadings, my Learned predecessor in office, has framed the following issues on 11.01.2011 as under:
ISSUES
1. Whether the Plaintiff proves that the passage described in the Plaint schedule is the common passage?
2. Whether the Plaintiff proves that he was lawfully using the common passage as on the date of the suit?
3. Whether the Plaintiff proves the alleged interference?
4. Whether the Plaintiff is entitled for execution of rectification deed inrespect of the passage?
5. Whether the Plaintiff is entitled for the relief for change of khata from the 3rd defendant?
6. What decree or order?
8. The Plaintiff got amended the suit plaint as per orders dated 13.06.2017 and contended that the Defendant No 1, with the help of the Police, got constructed a compound wall blocking the passage situate at the 10 OS No.17675/2005 Southernside (Suit Schedule Passage), connecting the Passage located on the Drainage, situate at Easternside of the property purchased by him, during the pendency of this suit. Hence prayed to issue Mandatory Injunction against the Defendant No 1 to remove the said compound wall. On the contrary, the Defendant No 1 has filed Additional Written Statement on 17.06.2019 to the Amended Suit Plaint and denied all the allegations made by the Plaintiff and has specifically contended that the relief claimed under Amended Plaint is barred by law of limitation, hence prayed to reject the same. On the basis of the said Amended Plaint and Additional Written Statement, this Court has framed the following Additional Issues on 17.06.2019, as under:
Additional Issues framed on 17.06.2019.
1. Whether the Plaintiff proves that the Defendant No 1 incollusion with the other Defendants and with the help of the Police has constructed a Wall on the easternside of the suit schedule property, during the pendency of this 11 OS No.17675/2005 suit, as contended by him in Para No 23 of his amended suit plaint?
2. Whether the Defendant proves that claim of the Plaintiff is barred by law of limitation?
3. Whether the Plaintiff is entitled for the relief of removal of the compound wall as claimed by him?
9. The Plaintiff inorder to prove his case has got examined himself as PW1 and initially he has got marked Eight documents as Ex.P.1 to Ex.P.8. PW1 was cross examined by the Defendant Nos 1 & 2 on 05.04.2012. Defendant No 1 got himself examined as DW1 and initially got marked Three documents as ExD1 to ExD3. DW1 was cross examined on behalf of the Plaintiff. ExP10 to ExP13-Positive Photographs are marked on confrontation to DW1.
After amendment of the Suit Plaint, the Plaintiff got further examined himself as PW1 and got marked 14 documents as ExP14 to ExP27. PW1 was further cross examined on behalf of the Defendant Nos 1 & 2 on 03.07.2019 & 12 OS No.17675/2005 05.07.2019. ExD4 was got marked on confrontation to PW1. Per contra, Defendant No 1 further got examined himself as DW1 and got marked 5 documents as ExD5 to ExD9.
10. The suit was initially allotted to CCH-29. The same was transferred to CCH-21 by virtue of Notification No ADM1(A) 797/2010 dated 26.11.2010. Thereafter the said matter was transferred to this Court on 10.06.2019 by virtue of a Notification No ADM-I(A) 205/2019 dated 30.03.2019 of the Principal City Civil and Sessions Judge, Bangalore.
11. Heard the arguments advanced by the Learned Counsels for the Plaintiff and the Defendants, respectively.
12. My findings on the above said issues are as under:
Issue No 1 : Partly in the Affirmative; Issue No 2 : Partly in the Affirmative;
Issue No 3 : In the Affirmative;
Issue No 4 : In the Negative;
13 OS No.17675/2005
Issue No 5 : In the Negative;
Addl Issue No 1 : Partly in the Affirmative; Addl Issue No 2 : In the Negative;
Addl Issue No 3 : In the Affirmative; Issue No 6: As per final order for the following :R E A S O N S:
13. ISSUE NOS 1, 2 & 4:
Since these three issued are interlinked with each other and inorder to have brevity and to avoid confusion and repetitions, they are takenup for joint discussion.
As per the Plaint averments of the Plaintiff and the Written Statement averments of the Defendants, the undisputed facts are:
The Main property bearing No 59, was originally belonging to Sri Ponnaswamy, who had purchased the said property by virtue of a Registered Sale-deed dated 15.04.1958-ExD1, measuring East to West: 46 feet and North to South: 30. Thereafter children of Ponnaswamy, executed a Release Deed dated 16.08.1984- 14 OS No.17675/2005 ExD2/ExP1. As per the said Released Deed, the property bearing No 59/1, measuring East to West: 46 feet and North to South: 25 feet, with a Passage towards the Southernside of the said property, measuring East to West: 46 feet and North to South: 5 feet, was released infavour of Valliayamma and Bhagyawati, the daughters of said Ponnaswamy jointly. Thereafter partition took place inbetween both the sisters- Valliayamma and Bhagyawati- the daughters of said Original Owner Ponnaswamy and in the said partition dated 17.08-1984-ExD3/ExP2, Eastern half portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet with passage running East to West measuring East to West: 23 feet and North to South: 5 feet, has fallen to the share of Bhagyawati. Likewise Western half portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet with passage running East to West, measuring East to West: 23 feet and North to South: 5 feet, has fallen to the share of Valliayamma.15 OS No.17675/2005
Said Bhagyawati sold her Eastern portion of Property bearing No 59/1, with passage measuring East to West 23 feet and North to South: Towards Easternside 2 feet and Westernside 3½ feet, (but the Plaintiff has referred in Para No 7 of the suit plaint as - North to South: Towards Easternside 3 feet and Westernside 1feet-06 inches), to Nanjundappa by virtue of a registered sale-deed dated 16.07.1987- ExP4.
Thereafter the said Nanjundappa sold the Eastern half portion of the property bearing No 59/1, alongwith the passage situate towards the Southernside of the said property, measuring East to West: 23 feet and North to South, towards Easternside 2 feet and Westernside 3½ feet, to the Plaintiff by virtue of Registered Sale-deed dated 08.08.1988-ExP5.
14. But the disputed facts are:
a) The passage situate towards Southernside of the property, purchased by the Plaintiff does not measure North to South: 5 feet (as shown by 16 OS No.17675/2005 the Plaintiff as Suit Schedule passage) but it measures Towards the Easternside 2 feet and Westernside 3½ feet;
b) there is no Drainage-Passage measuring 6 feet width, running north-South, on the Easternside of the property purchased by the Plaintiff, which leads to the main Road.
15. So as per the Plaintiff, he contends that Defendant No 1 has encroached over the passage situate towards Southerside of his property. The Defendant has produced the Certified Copy of the Registered Sale-deed dated 15.04.1958 at ExD1. As per the said sale-deed, it is seen that Sri P Ponnu Swamy Mudliar purchased from Sri Subramaniam S/O: Ramalingam, the property bearing No 59, situate at Kadiranna Palya, Bhinna Mangala Civil Station, Bangalore.
Further the Defendant has produced the Certified Copy of the Registered Release Deed dated 16.08.1984 at ExD2, which is also produced by the Plaintiff at ExP1. As per this document it is seen that, the property bearing No 17 OS No.17675/2005 59/1, measuring East to West 46 feet and North to South: 25 feet, situated towards the Northernside of the main property is released infavour of the daughters of Ponnaswamy namely Valliammal and Bhagyavathi, jointly, with a common passage measuring East to West 46 feet and North to South 5 feet, located inbetween property No 59 and 59/1, to be used jointly by his children.
Further the Defendant No 1 has produced certified copy of the Registered Partition Deed dated 17.08.1984 at ExD3, which is also produced by the Plaintiff at ExP2. As per this document it is seen that partition is effected inbetween the two sisters Valliammal and Bhagyawati and in the said partition, Eastern half portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet with passage running East to West, measuring East to West: 23 feet and North to South: 5 feet, has fallen to the share of Bhagyawati. Likewise Western half portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet with 18 OS No.17675/2005 passage running East to West, measuring East to West: 23 feet and North to South: 5 feet, has fallen to the share of Valliayamma.
So the combined reading of the ExD1, ExD2/ExP1 and ExD3/ExP2, it can be said that Eastern half portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet with passage running East to West measuring East to West: 23 feet and North to South: 5 feet, has fallen to the share of Bhagyawati and the Western half portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet with passage running East to West measuring East to West: 23 feet and North to South: 5 feet, has fallen to the share of Valliayamma.
16. Further the Plaintiff has produced the Certified Copy of the Registered Sale-deed dated 16.07.1987 at ExP3. As per this document it is seen that Bhackiyavathi has sold the property- Eastern portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet with a common passage to be used 19 OS No.17675/2005 by the purchaser and the house of Shri Natarajan-Property No 59 and the passage beyond the schedule property is also a common passage for ingress and egress, to Shri Nanjundappa, for a valuable consideration of Rs 35,000/-. Further this document also evidences that the purchaser has been put into possession of the said property on the day of its purchase.
17. Further the Plaintiff has produced the Certified Copy of the Agreement of Sale dated 27.01.1988 at ExP4. As per this document it is seen that Nanjundappa has agreed to sell the property- Eastern portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet, including a passage leading East to West 46 feet, North to South: 5 feet is common passage, to Shri P. Balasubramanyam, for a valuable consideration of Rs 42,000/-. Further towards the South of the property under purchase, Common passage measuring East side 2 feet, west side 3½ feet, length 23 feet, is situated.
20 OS No.17675/200518. Further the Plaintiff has produced the Certified Copy of the Registered Sale-deed dated 08.08.1988 at ExP5. As per this document it is seen that Nanjundappa has sold the property- Eastern portion of the property bearing No 59/1, measuring East to West: 23 feet and North to South: 25 feet, including a common passage both for the purchaser and the house of Shri Natarajan-owner of Premises No 59, and the Passage beyond the schedule property is also common for ingress and egress, to Shri P. Balasubramanyam, for a valuable consideration of Rs 42,000/-. Further towards the South of the property under purchase, Common passage measuring East side 2 feet, west side 3½ feet, length 23 feet, is situated and towards the Easternside, Property of Kantha is situated. Further this document also evidences that the purchaser has been put into possession of the said property on the day of its purchase. Further the Plaintiff/PW1 has also admitted as to the location of Khanta's property towards the Easternside of the Schedule property and Common passage measuring East side 2 feet and West side 3½ feet, length 23 feet, towards 21 OS No.17675/2005 Southerside of the schedule property. On admission, the same is marked as ExD4.
19. Coming to the Ocular evidence of the Plaintiff, more specifically at Cross Examination of PW1 at Page No 15, Para No 1, which reads as under:
"I know the Defendant No.1 since the year 1958. I have purchased the property bearing 59/1 from one Nanjundappa. Said Nanjundappa had purchased the property from one Smt. Bhagyavathi. The property bearing No.59/1, which I have purchased, measures East to West 23-ft and North to South 25-ft. prior to my purchase of the aid property I had entered into an agreement with my vendor on 27.01.1988. Now I see the said agreement which is marked as Ex.P.4. Now I see the Registered Sale Deed dt.08.08.1988 by virtue of which, I have purchased property bearing 59/1, which is marked as Ex.P5. It is true to suggest that in Ex.P5 more specifically at page No.6, wherein the boundaries of the schedule property is shown, bounded to the East as "Katha's property" and bounded to the South as "Common passage measuring east side 2ft, west 3 ½ ft and length 23 ft". On confrontation and admission the said portion of the boundaries are marked as ExD4."22 OS No.17675/2005
As per this PW1/Plaintiff admits that the property which he has purchased measures East to West 23 ft and North to South: 25 ft and he further admits with regard to the boundaries shown towards the Easternside and Southernside of the purchased property in the sale deed, by virtue of which he has purchased.
Further as per the Cross examination of PW1 at Page No 16, Para No 2, which reads as under:
"It is true to suggest that towards the southern side of property bearing No 59/1, a passage is situated. It is true to suggest that the said passage towards easternside measures 2 ft and towards westernside measures 3½ ft."
As per this PW1/Plaintiff admits that the passage situate towards Southernside measures towards Easternside 2 feet and towards Westernside it measures 3½ feet.
23 OS No.17675/2005Further as per the Cross examination of PW1 at Page No 21, Para No 1, which reads as under:
"..... It is true to suggest that inbetween my property and the property of the Defendant No 1, there is a passage measuring towards East side 2 ft and towards West side 3½ ft".
As per this PW1/Plaintiff admits that the passage situated inbetween his property (Easternside of Property No 59/1) and the property of the Defendant No 1 (Property No 59) the passage which is towards Southernside measures towards Easternside 2 feet and towards Westernside it measures 3½ feet.
Further as per the Cross examination of PW1 at Page No 17, Para Nos 3 & 5, which reads as under:
"It is true to suggest that since 1988 from the date of my purchase till filing of this suit in the year 2005, I have not filed any suit claiming the passage to be measuring as 5 ft.
Witness volunteers that since all the sites were vacant sites, no one had raised any objections, when the 24 OS No.17675/2005 Defendant has raised the objections, I have filed this suit".
"I do not possess any document to show that passage situate towards Southerside of the property bearing No 59/1, measures 5 ft, after my purchase in the year 1988. Witness volunteers that prior to my purchase, one Nanjundappa had agreed to sell the present property to me, in the said agreement he had stated that the said passage measures 5 ft. I have not produced the said agreement executed by Nanjundappa".
As per this PW1/Plaintiff contends that he is not having any documents to show that the passage situated inbetween his property (Easternside of Property No 59/1) and the property of the Defendant No 1 (Property No 59), measures 5 feet, but he is having an agreement executed by his vendor Nanjundappa in his favour to show that the said passage measures 5 feet, but he has not produced the same. Further the Plaintiff contends that right from his purchase till filing of this suit, he has not claimed that the said passage, measures 5 feet.
25 OS No.17675/2005Further as per the Cross examination of PW1 at Page No 18, Para No 3, line Nos 1 to 3, which reads as under:
"It is true to suggest that boundaries shown in ExP5 Sale-
Deed dt. 08.08.1988 and the boundaries of the suit schedule property, do not tally with each other. .... ".
As per this PW1/Plaintiff admits that the boundaries of the Suit Schedule passage shown in the suit do not tally with the boundaries shown in the sale deed dated 08.081988, by virtue of which he has purchased Eastern half portion of the Property No 59/1, alongwith passage situated towards its Southernside.
20. Coming to the Ocular evidence of the Defendant No 1, more specifically at Cross Examination of DW1 at Page No 6, line Nos 8 to 17 till Page No 8, Line No 2, which reads as under:
".............. zÁªÁ µÉqÀÆå¯ï£À°è vÉÆÃj¸À¯ÁzÀ D¹Û £ÀA.59-1 C®èzÉà E£ÉÆßAzÀÄ D¹Û £ÀA.59 JAzÀÄ EzÉ. ¸ÀzÀj G¨ÀsAiÀÄ D¹ÛUÀ¼À ¥ÉÊQ D¹Û £ÀA.59 £À£ÀUÉ §A¢gÀĪÀ 26 OS No.17675/2005 D¹Û J£ÀÄߪÀÅzÀÄ ¤d. D¹Û £ÀA.59-1 EzÀÄ «¨sÁUÀzÀ°è £À£Àß ¸ÀºÉÆÃzÀjAiÀÄgÁzÀ ¨sÁUÀåªÀw ªÀÄvÀÄÛ ªÀ°èAiÀĪÀiÁä¼ï EªÀjUÉ PÉÆlÖAvÀºÀ ¨sÁUÀzÀ D¹ÛAiÀiÁVgÀÄvÀÛzÉ. ¨sÁUÀåªÀw J£ÀÄߪÀ £À£Àß ¸ÀºÉÆÃzÀj CªÀ¼À ¨sÁUÀzÀ ªÉÄÃ¯É ºÉýzÀ D¹Û £ÀA.59-1 gÀ°è£À ¨sÁUÀªÀ£ÀÄß M§âgÀÄ £ÀAdÄAqÀ¥Àà J£ÀÄߪÀªÀjUÉ ªÀiÁgÁl ªÀiÁrzÁÝ¼É J£ÀߪÀÅzÀÄ ¤d. ªÉÄÃ¯É ºÀÉýzÀ £ÀªÀÄä G¨ÀsAiÀÄ D¹ÛUÀ¼À°è £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ¸ÀºÉÄÁÃzÀjAiÀÄgÀÄ «¨sÁUÀ ªÀiÁrPÉƼÀÄîªÁUÀ JgÀqÀÆ D¹ÛUÀ¼À ªÀÄzÀsåzÀ°è 5 CrAiÀÄ gÀ¸ÉÛAiÀÄ£ÀÄß ©qÀ¯ÁVzÉ JAzÀÄ vÉÆÃj¸À¯ÁVzÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀj 5 CrAiÀÄ gÀ¸ÉÛAiÀÄ£ÀÄß £À£Àß ªÀÄvÀÄÛ £À£Àß ¸ÀºÉÆÃzÀjAiÀÄgÀ dAn G¥ÀAiÉÆÃUÀPÁÌV ªÀÄvÀÄÛ C°è£À ¸ÁªÀðd¤PÀgÀÄ PÀÆqÀ ºÁzÀĺÉÆÃUÀĪÀ ¸À®ÄªÁV ©qÀ¯ÁVzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. D¹Û £ÀA.59 gÀ°è £ÁªÀÅ «¨sÁUÀ DUÀĪÀÅzÀQÌAvÀ ªÀÄÄAZÉAiÉÄà ¸ÀĪÀiÁgÀÄ ªÀµÀðUÀ¼À »AzÉ £À£Àß vÀAzÉ ªÀÄ£ÉAiÀÄ£ÀÄß PÀnÖzÁÝgÉ. C¸À®Ä «¨sÁUÀ ¥ÀvÀæzÀ°è gÀ¸ÉÛAiÀÄ£ÀÄß 5 Cr JAzÀÄ vÉÆÃj¹ vÀzÀ£ÀAvÀgÀ £ÀAdÄAqÀ¥Àà¤UÉ D¹Û £ÀA.59-1 C£ÀÄß ªÀiÁgÁl ªÀiÁqÀĪÁUÀ ¸ÀzÀj gÀ¸ÉÛAiÀÄ C¼ÀvÉAiÀÄ£ÀÄß 5 Cr¬ÄAzÀ 3.5 CrUÉ PÀrªÉÄ ªÀiÁr Rjâ ¥ÀvÀæzÀ°è §gÉAiÀįÁVzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¸ÀzÀj gÀ¸ÉÛAiÀÄ ¸ÀzÀsåzÀ C¹ÛvÀé ¥ÀǪÀðzÀ PÀqÉUÉ 2 Cr ªÀÄvÀÄÛ ¥À²ÑªÀÄzÀ°è PÀqÉUÉ 3.5 Cr ºÁUÀÆ CzÀgÀ GzÀݼÀvÉAiÀÄ£ÀÄß 23 Cr DVgÀÄvÀÛzÉ. £ÀªÀÄä ºÀ¼ÉAiÀÄ ªÀÄ£É D¹Û £ÀA.59 gÀ ªÀÄÄRå zÁégÀªÀÅ ªÀÄÄRå gÀ¸ÉÛAiÀÄ C©üªÀÄÄRªÁVzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¸ÀzÀj ªÀÄ£ÉAiÀÄ »A¨sÁUÀzÀ°èAiÉÄà ¨sÁUÀåªÀwAiÀÄ ªÀÄÆ®PÀ £ÀAdÄAqÀ¥Àà Rjâ¹zÀ D¹Û EgÀÄvÀÛzÉ. £ÀAdÄAqÀ¥Àà Rjâ¹zÀ ¸ÀéwÛ£À zÀQët ¢QÌ£À PÀqÉUÉ EgÀĪÀ £ÀªÀÄä ºÀ¼ÉAiÀÄ ªÀÄ£É CAzÀgÉ D¹Û £ÀA.59 gÀ°è §gÀĪÀ ªÀÄ£ÉAiÀÄ GvÀÛgÀ ¢QÌ£À ¨ÁV®£ÀÄß ªÉÄÃ¯É ºÉüÀ¯ÁzÀ 5 Cr dAn ¥Áå¸ÉÃeï£À°è CwPÀæªÀÄt ªÀiÁr PÀÆr¹zÀÝjAzÀ 5 Cr ¥Áå¸ÉÃeï C¼ÀvÉ PÀrªÉÄ DVgÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. 2 CrAiÀÄ dAn ¥Áå¸ÉÃeï£À°è £ÀªÀÄUÁUÀ°Ã ªÀÄvÀÄÛ £ÀAdÄAqÀ¥Àà£ÀªÀgÀ PÀÄlÄA§zÀªÀjUÁUÀ°Ã NqÁqÀ®Ä C£ÀÄPÀÆ®ªÁUÀĪÀÅ¢®è J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è."
As per this DW1/Defendant No 1 admits that initially 5 feet passage was left inbetween 27 OS No.17675/2005 Property Nos 59/1 on the one hand and Property No 59 (Southernside of Main property No 59) on the otherhand. But at the time of selling the Easternside property fallen to the share of his sister Bhagyawati, she sold the Passage measuring 3½ feet towards Westernside and 2 feet towards Easternside and length of 23 feet to vendor of the Plaintiff, inturn the Plaintiff purchased the same.
Further as per the Cross Examination of DW1 at Page No 9, line Nos 14 to 18 till Page No 11, Line No 3, which reads as under:
"..............1984 gÀ°è EzÀÝ 5 CrAiÀÄ ¥Áå¸ÉÃeï CzÀÄ AiÀiÁªÀ PÁgÀtPÁÌV 3 CrUÀÉ PÀrªÉÄ D¬ÄvÀÄ JAzÀÄ PÉýzÀÝPÉÌ ¸ÁQëzÁgÀgÀÄ ¨sÁUÀåªÀw ¸ÀzÀj CªÀ¼À ¨sÁUÀPÉÌ §AzÀ ¥ÀǪÁðzÀsð ¸ÀévÀÛ£ÀÄß £ÀAdÄAqÀ¥Àà£ÀªÀjUÉ ªÀiÁgÁl ªÀiÁqÀÄ ªÀiÁqÀĪÁUÀ PÀrªÉÄ DVgÀÄvÀÛzÉ JAzÀÄ ºÉüÀÄvÁÛgÉ. £ÀªÀÄä vÀAzÉ 1980-81 gÀ°è ªÀÄgÀt ºÉÆA¢zÁÝgÉ. £ÀªÀÄä vÀAzÉ fêÀAvÀ«zÁÝUÀ ¸ÀéwÛ£À £ÀA.59 gÀ°è ªÀÄÄA¨sÁUÀzÀ°è CªÀgÀÄ ªÀÄ£É PÀnÖzÀÝgÀÄ. CzÀgÀ »A¨sÁUÀzÀ PÀlÖqÀªÀ£ÀÄß £ÀAvÀgÀ £ÁªÀÅ PÀnÖzÉÝêÉ. CzÀ£ÀÄß ¸Àj¸ÀĪÀiÁgÀÄ 1981- 82 gÀ°è PÀnÖzÉÝêÉ. D ¸ÀAzÀ¨ÀsðzÀ°è £ÀªÀÄä vÀAzÉ fêÀAvÀ«gÀ°®è. ¸ÀzÀj ¸ÀéwÛ£À £ÀA.59 gÀ°è »A¨sÁUÀzÀ PÀlÖqÀªÀ£ÀÄß £ÀAdÄAqÀ¥Àà ªÀÄvÀÄÛ F zÁªÉAiÀÄ ªÁ¢ Rjâ¹zÀ £ÀAvÀgÀ PÀlÖ¯ÁVzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. vÀzÀ£ÀAvÀgÀ PÀnÖzÀ PÀlÖqÀzÀ ¸ÀeÁÓ ªÀÄvÀÄÛ ¨ÁV®£ÀÄß ªÁ¢AiÀÄ ¸ÀéwÛ£À £ÀA.59-1gÀ PÀqÉUÉ ©nÖzÉÝÃªÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀj ¨ÁV®Ä D PÀqÉUÉ EgÀĪÀ £ÀªÀÄä ¸ÀévÀÄÛ £ÀA.59 ªÀÄvÀÄÛ 59-1£ÀÄß G¥ÀAiÉÆÃV¸ÀĪÀ ¸À®ÄªÁV ©nÖgÀÄvÉÛêÉ. ¸ÀzÀj ªÉÃ¯É ºÉýzÀ ¥Áå¸ÉÃeï 59-1gÀ ¸ÀéwÛ£À°è §gÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ 28 OS No.17675/2005 ¤d. 1991 gÀ°è £ÁªÀÅUÀ¼ÀÄ ¸ÀéwÛ£À £ÀA.59 gÀ°è »A¨sÁUÀzÀ PÀlÖqÀªÀ£ÀÄß PÀlÄÖªÁUÀ F zÁªÉAiÀÄ ªÁ¢ £ÀªÀÄä «gÀÄzÀÞ ¤.¦.6gÀ ªÀÄÆ®PÀ ¥ÉǰøÀjUÉ zÀÆgÀ£ÀÄß ¸À°è¸ÀĪÀ ªÀÄÆ®PÀ ¥Áå¸ÉÃeï£À°è £ÁªÀÅ CwPÀæªÀÄt ªÀiÁr PÀlÄÖwÛzÉÝêÉ, CzÀ£ÀÄß vÀqÉ»rAiÀĨÉÃPÉAzÀÄ zÀÆgÀÄ ¸À°è¹zÀÝgÀÄ J£ÀÄߪÀÅzÀÄ ¤d. 2004 gÀ°è ¸ÀzÀj ¸ÀéÁwÛUÉ C¸À®Ä zÁªÉ £ÀA. 5243-2001 gÀ°è ¹¹ºÉZï-19gÀ DzÉñÀzÀAvÉ £ÁåAiÀiÁ®AiÀÄzÀ PÀ«ÄµÀ£ÀgïgÀªÀgÀÄ ¨sÉÃnPÉÆlÄÖ «ªÁ¢vÀ ¸ÀéwÛ£À ªÀÄvÀÄÛ ªÁ¢-¥ÀæwªÁ¢AiÀÄgÀ ¸ÀéwÛ£À ¸ÉÌÃZï PÉÊUÉÆAqÁUÀ CzÀPÉÌ £Á£ÀÄ ªÀÄvÀÄÛ ªÁ¢ E§âgÀÆ ºÁUÀÆ £ÁåAiÀÄiÀÁ®AiÀÄzÀ PÀ«ÄµÀ£ÀgïgÀªÀgÀÄ ¸À» ºÁQzÉÝÃªÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀj ¤.¦.7 gÀ¥ÀæPÁgÀ «ªÁ¢vÀ ¥Áå¸ÉÃeï ¸ÀA¥ÀÇtð ¥ÁægÀA¨Às¢AzÀ ¥À²ÑªÀÄ ¨sÁUÀzÀ ªÀÄÄRå gÀ¸ÉÛ¬ÄAzÀ ¸ÀéwÛ£À £ÀA. 57 gÀªÀgÉUÉ 5 Cr EzÀÄÝ EzÀ£ÀAvÀgÀ 2 CrUÉ PÀrªÉÄAiÀiÁVgÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀj ¥Áå¸ÉÃeï£À C¼ÀvÉAiÀÄÄ £ÀAdÄAqÀ¥Àà ªÁ¢UÉ §gÉzÀÄPÉÆlÖAvÉ D ¥ÀæPÁgÀ C¼ÀvÉ EgÀÄvÀÛzÉ JAzÀÄ ¸ÁQëzÁgÀgÀÄ ºÉüÀÄvÁÛgÉ......."
As per this DW1/Defendant No 1 contends that the reduction of the measurements of said Passage by Northsouth is reduced towards Easternside to the extent of 2 feet and towards Westernside to the extent of 3½ feet, since his sister has sold that much of area to Nanjundappa- the vendor of the Plaintiff and inturn the Plaintiff received the same.
21. Thus on the basis of the documentary Evidence and on the basis of the above ocular evidence, it can be said that the vendor of the Plaintiff one Nanjundappa received the right to 29 OS No.17675/2005 use the Passage, measuring East to West: 23 feet and North to South: towards Easternside 2 feet and towards Westernside 3½ feet. So as per Sec 8 of the Transfer of Property Act and by applying the principles of "Nemo Dat quod Non habet"
which says " a person cannot transfer more than what he possess/has". So the Plaintiff received only the passage, measuring East to West: 23 feet and North to South: towards Easternside 2 feet and towards Westernside 3½ feet, alongwith the Eastern half portion of Property No 59/1, from Nanjundappa as per ExP5 Sale-deed dated 08.08.1988. Thus the Plaintiff has shown that there exists a passage towards the Southernside of the property bearing No 59/1, purchased by him and the said passage measures East to West:
23 feet and North to South: towards Easternside 2 feet and towards Westernside 3½ feet.
22. The Learned Counsel for the Plaintiff would contend that, a Court commissioner was appointed at the instance of the present Defendant in O.S.No.5243/2001, wherein the Court commissioner has given his report, as per Ex.P15, Ex.P15(A) and Ex.P15(B). The said Court 30 OS No.17675/2005 commissioner is not examined by, any of the parties, to this suit, in this suit.
Coming to the ocular evidence of the Plaintiff on this point, more specifically in the cross-
examination of PW.1 at Page No.21, Para Nos. 3and 4, which reads as under:
"It is false to suggest that, in the present case no Court commissioner is appointed. It is false to suggest that Ex.P15, Ex.P15(A) and Ex.P15(B) are not pertaining to the present suit schedule property.
It is false to suggest that suit schedule property in O.S.No.5243/2001 and the present suit schedule property are different properties."
Further as per the ocular evidence of the Defendant, more specifically cross- examination of DW.1 at Page No.10, Line No.13 till Page No.11, Line No.3, which reads as under:
"À ..........2004 gÀ°è ¸ÀzÀj ¸ÀéwÛUÉ C¸À®Ä zÁªÉ £ÀA.5243-2001 gÀ°è ¹¹ºÉZï-19gÀ DzÉñÀzÀAvÉ £ÁåAiÀiÁ®AiÀÄzÀ PÀ«ÄµÀ£ÀgïgÀªÀgÀÄ ¨ÀsÉÃnPÉÆlÄÖ «ªÁ¢vÀ ¸ÀéwÛ£À ªÀÄvÀÄÛ ªÁ¢- ¥ÀæwªÁ¢AiÀÄgÀ ¸ÀéwÛ£À ¸ÉÌZï PÉÊUÉÆAqÁUÀ CzÀPÉÌ £Á£ÀÄ ªÀÄvÀÄÛ ªÁ¢ E§âgÀÆ ºÁUÀÆ £ÁåAiÀiÁ®AiÀÄzÀ PÀ«ÄµÀ£ÀgïgÀªÀgÀÄ ¸À» ºÁQzÉÝÃªÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀj ¤.¦.7gÀ ¥ÀæPÁgÀ «ªÁ¢vÀ ¥Áå¸ÉÃeï ¸ÀA¥ÀÇtð ¥ÁægÀA¨Às¢AzÀ ¥À²ÑªÀÄ ¨sÁUÀzÀ ªÀÄÄRå gÀ¸ÉÛ¬ÄAzÀ ¸ÀéwÛ£À £ÀA. 57 gÀªÀgÉUÉ 5 Cr EzÀ£ÀAvÀgÀ 2 CrUÉ PÀrªÉÄAiÀiÁVgÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀj ¥Áå¸Éeï£À C¼ÀvÉAiÀÄÄ £ÀAdÄAqÀ¥Àà ªÁ¢UÉ §gÉzÀÄPÉÆlÖAvÉ D ¥ÀæPÁgÀ C¼ÀvÀ EgÀÄvÀÛzÉ JAzÀÄ ¸ÁQëzÁgÀgÀÄ ºÉüÀÄvÁÛgÉ........"31 OS No.17675/2005
Thus, first of all the Court commissioner has not been examined in this case. Secondly, the report of the Court commissioner, for the commission work conducted in O.S.No.5243/2001 has remained unproved, in this case. When the Plaintiff has got confronted Ex.P10 to Ex.P13-positive photographs to DW.1 which has remained an admitted fact from the side of the Defendant withregard to factual situation on the site, under such circumstances, no importance can be attached to the report submitted by the Court commissioner in O.S.No.5243/2001 which is marked as Ex.P15, Ex.P15(A) and Ex.P15(B).
23. Thus the Plaintiff has proved that there exist a passage as shown in the suit plaint, but not with that measurements, but the passage proved by the Plaintiff measures East to West: 23 feet and North to South: towards Easternside 2 feet and towards Westernside 3½ feet, which is situated towards Southernside of his property, purchased under ExP5 Sale-deed dated 08.08.1988 and he was using the said common passage. Since the Plaintiff has failed to show 32 OS No.17675/2005 that the said southern passage measures 5 feet and he was enjoying the said passage of 5 feet, so there is no necessity of execution of any rectification deed, as already, as per ExP5-Sale- deed dated 08.08.1988, he has been given right to use the Southernside passage, measuring East to West: 23 feet and North to South: towards Easternside 2 feet and towards Westernside 3½ feet. Hence I answer Issue No 1 Partly in the Affirmative; Issue No 2 Partly in the Affirmative and Issue No 4 in the Negative.
24. ADDITIONAL ISSUE No. 1 and 3:
Since these two issued are interlinked with each other and inorder to have brevity and to avoid confusion and repetitions, they are taken for joint discussion.
The Plaintiff has initially contended in the suit plaint that, the Defendant is trying to cause interference in the peaceful enjoyment of the Plaintiff over the passage situated towards the Southern side of his property and the Defendant is trying to block the said passage, which touches the passage formed on the drainage, situated 33 OS No.17675/2005 towards the Eastern side of his property, which touches the main road.
Further the Plaintiff has got amended his suit plaint as per Para No.23 and has contended that, the Defendant during the pendency of the suit, quite in collusion with the other Defendants and the police officials has constructed a compound wall and has blocked the said passage. Due to the said act, Plaintiff is not in a position to approach the main road from the passage formed on the drainage consisting of six-feet, which runs North to South. The Defendant No.1 has denied the same.
Inorder to prove the same, the Plaintiff has produced the Court commissioner report submitted in O.S.No.5243/2001, the spot mahazar with two rough handsketches and the objections filed to the said Court commissioner report at Ex.P.15, Ex.P.15(A) to Ex.15(B); ten positive photographs and one CD at Ex.P.17 to Ex.P.27.34 OS No.17675/2005
The Learned Counsel for the Plaintiff would contend that, Court commissioner in O.,S.No.5243/2001 appointed at the instance of the present Defendant No.1, who was the Plaintiff in that suit. The said Court commissioner report suggest the existence of six-feet width passage formed on the drainage, which is located towards the Eastern side of the property belonging to the Plaintiff. The said Eastern side passage runs North-South and touches the main road. The Learned Counsel for the Plaintiff would also contend that the passage situated towards the Southern side of the property belonging to the Plaintiff, which is the passage inbetween property No.59/1 and 59 (New), touches the said Eastern side passage formed on the drainage, which runs North to South, inorder to approach the main road.
On careful perusal of Registered Partition Deed dtd.17.08.1984-Ex.P.2; Registered Sale Deed dtd.16.07.1987 executed by Bhagyavathi infavour of Nanjundappa, which is marked as Ex.P.3; Agreement of Sale dtd.27.01.1988-Ex.P.4 and Registered Sale Deed dtd.08.08.1988-Ex.P.5 35 OS No.17675/2005 executed by Nanjundappa infavour of the Plaintiff and Ex.D.4, the portion of the Registered Sale Deed dtd.08.08.1988-Ex.P.5, marked on confrontation to the Plaintiff on behalf of the Defendant Nos.1 and 2, all these documents speak that towards Eastern side of the property which is purchased by the Plaintiff, the property of one Kantha is located and not the drainage, as claimed by the Plaintiff.
Further as per Ex.P.15- Court Commissioner report, it can be seen that, as per the said report the Court Commissioner has given a rough handsketch, which is marked as Ex.P.15(B), as per the said sketch the Court Commissioner has shown six-feet drainage towards the Eastern side of the property purchased by the Plaintiff under Ex.P.5-Sale Deed Dtd.08.08.1988. Firstly, Ex.P.15-Court Commissioner report, is a report submitted by the Court Commissioner appointed in O.S.No.5243/2001 and not in this present case. Secondly, the Plaintiff has not made any efforts to examine the concerned witness to prove the said Court Commissioner report, inorder to place the reliance on it. Thirdly, the Plaintiff has 36 OS No.17675/2005 not made it clear that, as to how that drainage is located towards the Eastern portion of his property.
25. Coming to the ocular evidence available on record, more specifically at cross examination of PW.1 Page No.17, Para No.4, which reads as under:
"It is false to suggest that towards the eastern side of property bearing No.59/1 there is no any passage."
As per this the suggestion was made on behalf of the Defendant Nos.1 and 2 that towards eastern side of property No.59/1 there is no passage. So it is for the Plaintiff to prove the existence of the said passage, said to have been formed on the drainage having width of six-feet running North to South.
Further as per the cross examination of PW.1, Page No.18, Para No.2, which reads as under:
"I have not produced any document to show that towards the eastern side of the suit schedule property, a drainage is located".37 OS No.17675/2005
As per Ex.P.2,Ex.P.3, Ex.P.4 and Ex.P.5, none of these documents, produced by the Plaintiff, suggest that towards the Eastern side of his property purchased under Ex.P.5, a drainage is located. On the other hand, the said documents suggest that property of one Kantha is located.
Further as per cross examination of PW.1 Page No.18, Para No.4, which reads as under:
"I do not possess any document to show that passage situate towards southern side of the property bearing No.59/1 measures 5 ft., after my purchase in the year 1988. Witness volunteers that prior to my purchase, one Nanjundappa had agreed to sell the present property to me, in the said agreement he had stated that the said passage measures 5 ft. I have not produced the said agreement executed by Nanjundappa ".
As per this piece of evidence, the Plaintiff ought to have explained as to how that so-called passage on the drainage is formed towards the Eastern side of his property. But the same has remained un-explained, from the side of the Plaintiff.
38 OS No.17675/2005Further as per cross examination of PW.1, Page No.18, Para No.5, which reads as under:
"It is false to suggest that the passage situated towards the eastern side of my property have been gulped by me alongwith my neighbour Kantha, by constructing a building over it. It is true to suggest that I have not impleaded my neighbour Kantha in this suit ".
Further as per this piece of evidence, the Defendant has created a doubt as to the existence of the drainage, said to have been situated towards the Eastern side of the property of the Plaintiff, by contending and alleging that the Plaintiff has gulped the said passage, in collusion with his neighbourer-Kantha, who is shown to be the adjacent owner of his (Plaintiff's) property, towards the Eastern side as per Ex.P.2, Ex.P.3, Ex.P.4 and Ex.P.5.
Further as per the cross examination of PW.1 Page No.21, Para No.2, which reads as under:
"As per me the passage situate towards the Eastern side of property bearing No.59/1, which is claimed 39 OS No.17675/2005 to be the passage of Srinivas and Devnera coming within property No.60, is a drainage. I have not produced any document to show that towards the eastern side of my property bearing No.59/1, drainage is located. It is false to suggest that I am deposing falsely that towards eastern side of my property drainage is located and there is no passage belonging to Srinivas and Devendra which is formed in property No.60".
Further as per cross examination of PW.1 Page No.22, Para No.2, which reads as under:
"It is false to suggest that I do not any right over the passage which I am claiming to be the drainage located towards eastern side of the property bearing No.59/1".
Further as per the cross examination of PW.1 Page No.20, Para No.1, which reads as under:
"It is false to suggest that there is no drainage towards the Eastern side of the property bearing No.59/1, but towards eastern side of the said property, property of kantha is situated. It is false to suggest that my property is not abetted by a passage towards 40 OS No.17675/2005 eastern side but, I am using the passage of the property bearing No.60 belonging to Srinivas and Devendra. It is true to suggest that I have filed a suit at O.S.No.25390/2015 for the relief of mandatory injunction, against the said Srinivas and Devendra. It is true to suggest that I have filed the said suit in respect of the passage located towards eastern side of property bearing No.59/1. It is true to suggest that the said suit is pending on the file of City Civil Judge (CCH-74). It is false to suggest that I have shown the width of the said passage as 5 ft. Witness volunteers that I have shown it has 6 ft. It is false to suggest that I do not have any right over the passage, located towards eastern side of property bearing No.59/1, which belongs to the property bearing No.60, belonging to Srinivas and Devendra. Property bearing No.60 belongs to Srinivasa and Devendra. I do not know from whom they have acquired the said property".
As per the above three pieces of evidence, the Defendant contends that the passage, which is located towards the Eastern side of the property of the Plaintiff, that passage belongs to Srinivas and Devendra. Further the Plaintiff has admitted that he has filed a suit in respect of said passage 41 OS No.17675/2005 against the said Srinivas and Devendra at O.,S.No.25390/2015, which is pending for its adjudication on the file of the City Civil Court (CCH-74), Bengaluru.
26. In the present case, it is immaterial for this Court to probe into the matter and to ascertain the existence or non-existence of the passage and the drainage said to have been situated towards the Eastern side of the property of the Plaintiff. But in this case, this Court has only to see whether the Defendant No.1 has constructed a compound wall, blocking the passage located towards the Southern side of the property of the Plaintiff, which is said to have been leading towards the passage. The existence or non-existence of the said passage or the existence or non-existence of the said drainage, said to have been situated towards the Eastern side of the property, is the matter of adjudication in O.S.No.25390/2015. So under such circumstances, it will not be proper to discuss withregard to that issue, in this case.
42 OS No.17675/200527. Coming to the ocular evidence of the Defendant No.1 more specifically the cross examination of DW.1, at Page No.8, Para No.15, Line Nos.1 to 7, which reads as under:
" FUÀ vÀÉÆÃj¹zÀ 4 ¥sÉÆÃmÉUÀ¼À°è ¦APï §tÚ¢AzÀ vÉÆÃj¹zÀ ¸ÀévÀÄÛ £ÀªÀÄä ¸ÀévÁÛVgÀÄvÀÛzÉ ªÀÄvÀÄÛ ±Éqï£ÉÆA¢UÉ VqÀUÀ½gÀĪÀ ¸ÀévÀÄÛ F zÁªÉAiÀÄ ªÁ¢AiÀÄgÀ ¸ÀévÀÄÛ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀjAiÀĪÀÅUÀ¼À°è£À ªÀ¸ÀÄÛ¹ÜwAiÀÄ£ÀÄß ¸ÁQëzÁgÀgÀÄ M¦àPÉÆArzÀÝjAzÀ CªÀÅUÀ¼À£ÀÄß PÀæªÀĪÁV ¤.¦.10 jAzÀ ¤.¦.13 JAzÀÄ UÀÄgÀÄw¸À¯Á¬vÀÄ. ¤.¦.12 gÀ°è PÀqÀ¥À PÀ°è¤AzÀ PÀAqÀħgÀĪÀ ¸ÀeÁÓ zÁªÁ ¸ÀévÁÛzÀAvÀºÀ ¥Áå¸ÉÃeï£À°è DPÀæ«Ä¹PÉÆArgÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è......."
As per this the Defendant No 1 admits the factual position prevailing as per ExP10 to ExP13- Positive Photographs. Further he admits that as per ExP12-Photograph, the sajja (projection) formed with black Kadappa Tiles on the window and the Door, belongs to him. But he denies that the said projection comes over the said Southernside passage.
Further as per the cross examination of DW.1, at Page No.11, Line Nos.3 to 16, which reads as under:
"...... ªÁ¢AiÀÄ ¸ÀéwÛ£À ªÀÄvÀÄÛ £ÀªÀÄä ¸ÀéwÛ£À ¥ÀǪÀð ¢QÌUÉ CAzÀgÉ ¢QÌ£À CAzÀgÉ ¸ÀéwÛ£À £ÀA.59 ªÀÄvÀÄÛ 59-1 gÀ ¥ÀǪÀð ¢QÌUÉ 6 Cr qÉå æ£ÉÃeï ©nÖgÀÄvÀÛzÉ JAzÀÄ PÀ«ÄµÀ£ÀgïgÀªÀgÀ £ÀPÁ±ÉAiÀÄ°è vÀÉÆÃj¸À¯ÁVzÉ, CzÀ£ÀÄß £ÉÆÃr £ÁªÀÅ ¸À» ºÁQzÉÝÃªÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. £Á£ÀÄ ªÀÄvÀÄÛ 43 OS No.17675/2005 zÉêÉAzÀæ J£ÀÄߪÀªÀgÀÄ ªÉÄÃ¯É ºÀÉýzÀ 6 Cr qÉå æ£ÉÃeï PÁA¥ËAqï£ÀÄß PÀnÖzÉÝÃªÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¸ÀzÀj PÁA¥ËAqï£ÀÄß £À£Àß ¸ÀéwÛ£À°è £Á£ÀÄ PÀnÖPÉÆArzÀÉÝÃ£É JAzÀÄ ¸ÁQëzÁgÀgÀÄ ºÉüÀÄvÁÛgÀÉ. CzÀ£ÀÄß ¸Àj¸ÀĪÀiÁgÀÄ 2 ªÀµÀðUÀ¼À »AzÉ PÀnÖzÉÝãÉ. ¸ÀzÀj PÁA¥Ëqï£ÀÄß PÀlÄÖªÁUÀ ªÁ¢AiÀÄgÀÄ ¥ÉÇð¸ÀjUÉ £À£Àß «gÀÄzÀÞ zÀÆgÀÄ ¤ÃrzÀÝgÀÄ, DUÀ £Á£ÀÄ ¥ÉÇð¸ï oÁuÉUÉ ºÉÆÃV ¥ÉÇð¸ÀgÀ£ÀÄß £À£ÀUÉ C£ÀÄPÀÆ®ªÁUÀĪÀAvÉ §¼À¹PÉÆAqÀÄ ¸ÀzÀj PÁA¥Ëqï£ÀÄß £Á£ÀÄ PÀ«ÄµÀ£ïgÀªÀgÀ ªÀgÀ¢AiÀÄ°è G¯ÉèTÃvÀ 6 CrAiÀÄ qÉå æ£ÉÃeï DPÀæ«Ä¹PÉÆAqÀÄ 3 CrAiÀĵÀÄÖ CwPÀæªÀÄt ªÀiÁrPÉÆAqÀÄ PÁA¥ËAqï£ÀÄß PÀnÖzÀÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è...'' As per this piece of evidence, the Defendant No 1 denies as to the existence of the 6 feet width passage formed on the drainage, said to have been situated towards the Easternside of the property of the Plaintiff. Further the Defendant No 1 denies that he has not constructed the compound wall inbetween the drainage and their property. Further the Defendant No 1 admits that the said compound wall is constructed by him in his property, about 2 years back. Further he admits that at the time of constructing the said compound wall, the Plaintiff had lodged the complaint against him with the Police, but denies that at that time he had got managed the Police officials and by encroaching over the drainage 44 OS No.17675/2005 and by obstructing the passage about 3 feet, has constructed the compound wall.
Further as per the Cross examination of PW1 at Page No 19, Para No 2, which reads as under:
"It is false to suggest that I have blocked the 6 feet passage shown in ExP19-Photograph, in collusion with Srinivas and others. It is false to suggest that I have lodged a complaint to the Indiranagar Police Station and on the basis of the said complaint got secured the Plaintiff in the Police Station and by detaining the Plaintiff in the Police Station, got constructed the said compound wall. Witness volunteers that the said property and the suit property have no any bearance. It is false to suggest that as per ExP20 to ExP26 are the photos which show the blockage of 6 feet width passage."
As per this piece of evidence, the Defendant No 1 denies that he has blocked the 6 feet passage, shown in ExP19-Photograph, incollusion with Srinivas and others. Further he denies that on the basis of a complaint, he got secured the Plaintiff in the Indira Nagar Police Station and by detaining him in the Police Station, got constructed the Compound wall. Further the 45 OS No.17675/2005 Defendant No 1 contends that the said property and the suit property in this suit, have no any bearance. And Defendant No 1 also denies Photographs marked at ExP20 to 26, showing blockage of 6 feet width passage.
28. Reading this above oral evidence, in the light ExP12-Admitted Photograph (marked on confrontation to DW1), as per the said Photograph, it can be seen that compound wall constructed is seen in it. ExP12-Positve Photograph is similar to that ExP18 & ExP26- Positive Photographs. As per the said Positive photographs, it can be said that the said compound wall, constructed by the Defendant No 1, is on the passage, running East to West, situated towards the Southernside of the property of the Plaintiff. Construction of the said Compound wall by the Defendant No 1, forms an obstruction over the passage, situate towards Southernside of the property of the Plaintiff.
29. Further it is seen that as per ExP13- Admitted Photograph (marked on confrontation to DW1), the Defendant No 1 has also kept an 46 OS No.17675/2005 opening to his property and a door is affixed to it, just abutting the compound wall constructed, as stated in Para No 28 above. The said opening and affixing of door is towards the North-Easternside of the property of the Defendant No 1. It appears that the said door affixed, gets open outside on the passage, opening of the said door will also cause obstructions to the Plaintiff, to use the passage, situated towards Southernside of his property. Further ExP21 & ExP23-positive Photographs are similar to that of ExP13-Positive Photograph (Admitted by the Defendant No 1, on confrontation). As per the said photographs, the Defendant No 1 has also left a projection over the door fixed abutting the Compound wall, constructed by the Defendant No 1, even the said projection comes on the passage running East to West, situated towards the Southern side of the property of the Plaintiff.
30. Thus the Plaintiff has shown that the Defendant No 1 has constructed the Compound Wall obstructing the passage running East to West, situated towards the Southern side of his property. The Defendant No 1 is required to be 47 OS No.17675/2005 directed by way of mandatory Injunction to remove the said Compound wall to the extent of 2 feet, as the passage running East to West, situated towards the Southernside of the Property of the Plaintiff, measures 2 feet towards its Easternside.
31. Further the Plaintiff has shown that the projections made by the Defendant No 1, on the doors and window, which has opening towards the passage, running East to West, situated towards the Southernside of his property, is an obstruction for him, to use the said passage. The Defendant No 1 is required to be directed by way of mandatory Injunction to remove the said projections over the Doors and window with black Kadappa tiles and cement sheets, which are coming over the passage, running East to West, situated towards the Southernside of the property of the Plaintiff. Further the Defendant No 1 is required to be directed by way of mandatory Injunction to get changed the pattern of openings of the doors and the window facing the said passage. The said doors and windows shall not get opened on the passage, as it will form an 48 OS No.17675/2005 obstruction for the use of the said passage. It shall get open inside, within the area of the Defendant No 1.
32. But the Plaintiff has failed to prove that the Defendant No 1 has got constructed the Compound wall, with the aid of the Police Authorities and incollusion with the other Defendants, as contended by him.
Thus for the above reasons, I answer Additional Issue No.1 Partly in the Affirmative and Additional Issue No. 3 in the Affirmative.
33. ADDL ISSUE NO 2:
The Defendant No. 1 has contended in the Additional Written Statement filed by him that, the prayer sought for by the Plaintiff withregard to the removal of the compound wall is barred by Law of Limitation.
The Plaintiff contends that during the pendency of the suit, the Defendant in collusion with the other Defendants and with the aid of the 49 OS No.17675/2005 police officials, has constructed a compound wall, obstructing the passage situated towards Southern side of his property.
34. Coming to the ocular evidence of the Defendant No.1 more specifically at cross examination of DW.1, at Page No.19, Para No 2, which reads as under:
"It is false to suggest that I have blocked the 6 feet passage shown in ExP19-Photograph, in collusion with Srinivas and others. It is false to suggest that I have lodged a complaint to the Indiranagar Police Station and on the basis of the said complaint got secured the Plaintiff in the Police Station and by detaining the Plaintiff in the Police Station, got constructed the said compound wall. Witness volunteers that the said property and the suit property have no any bearance. It is false to suggest that as per ExP20 to ExP26 are the photos which show the blockage of 6 feet width passage."
As per this piece of evidence, the Defendant No.1 denies that he has blocked the six feet passage, shown in ExP19-Photograph, incollusion with Srinivas and others. Further he denies that on the basis of a complaint, he got secured the 50 OS No.17675/2005 Plaintiff in the Indira Nagar Police Station and by detaining him in the Police Station, got constructed the Compound wall. Further the Defendant No 1 contends that the said property and the suit property in this suit have no any bearance. And Defendant No 1 also denies Photographs marked at ExP20 to 26, showing blockage of 6 feet width passage.
Further as per the cross examination of DW.1, at Page No.11, Line Nos.3 to 16, which reads as under:
"...... ªÁ¢AiÀÄ ¸ÀéwÛ£À ªÀÄvÀÄÛ £ÀªÀÄä ¸ÀéwÛ£À ¥ÀǪÀð ¢QÌUÉ CAzÀgÉ ¢QÌ£À CAzÀgÉ ¸ÀéwÛ£À £ÀA.59 ªÀÄvÀÄÛ 59-1 gÀ ¥ÀǪÀð ¢QÌUÉ 6 Cr qÉå æ£ÉÃeï ©nÖgÀÄvÀÛzÉ JAzÀÄ PÀ«ÄµÀ£ÀgïgÀªÀgÀ £ÀPÁ±ÉAiÀÄ°è vÀÉÆÃj¸À¯ÁVzÉ, CzÀ£ÀÄß £ÉÆÃr £ÁªÀÅ ¸À» ºÁQzÉÝÃªÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. £Á£ÀÄ ªÀÄvÀÄÛ zÉêÉAzÀæ J£ÀÄߪÀªÀgÀÄ ªÉÄÃ¯É ºÀÉýzÀ 6 Cr qÉå æ£ÉÃeï PÁA¥ËAqï£ÀÄß PÀnÖzÉÝÃªÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. ¸ÀzÀj PÁA¥ËAqï£ÀÄß £À£Àß ¸ÀéwÛ£À°è £Á£ÀÄ PÀnÖPÉÆArzÀÉÝÃ£É JAzÀÄ ¸ÁQëzÁgÀgÀÄ ºÉüÀÄvÁÛgÀÉ. CzÀ£ÀÄß ¸Àj¸ÀĪÀiÁgÀÄ 2 ªÀµÀðUÀ¼À »AzÉ PÀnÖzÉÝãÉ. ¸ÀzÀj PÁA¥Ëqï£ÀÄß PÀlÄÖªÁUÀ ªÁ¢AiÀÄgÀÄ ¥ÉÇð¸ÀjUÉ £À£Àß «gÀÄzÀÞ zÀÆgÀÄ ¤ÃrzÀÝgÀÄ, DUÀ £Á£ÀÄ ¥ÉÇð¸ï oÁuÉUÉ ºÉÆÃV ¥ÉÇð¸ÀgÀ£ÀÄß £À£ÀUÉ C£ÀÄPÀÆ®ªÁUÀĪÀAvÉ §¼À¹PÉÆAqÀÄ ¸ÀzÀj PÁA¥Ëqï£ÀÄß £Á£ÀÄ PÀ«ÄµÀ£ïgÀªÀgÀ ªÀgÀ¢AiÀÄ°è G¯ÉèTÃvÀ 6 CrAiÀÄ qÉå æ£ÉÃeï DPÀæ«Ä¹PÉÆAqÀÄ 3 CrAiÀĵÀÄÖ CwPÀæªÀÄt ªÀiÁrPÉÆAqÀÄ PÁA¥ËAqï£ÀÄß PÀnÖzÀÉÝÃ£É J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è...'' 51 OS No.17675/2005 As per this piece of evidence, the Defendant No 1 denies as to the existence of the 6 feet width passage formed on the drainage, said to have been situated towards the Easternside of the property of the Plaintiff. Further the Defendant No 1 denies that he has not constructed the compound wall inbetween the drainage and their property. Further the Defendant No 1 admits that the said compound wall is constructed by him in his property, about 2 years back. Further he admits that at the time of constructing the said compound wall, the Plaintiff had lodged the complaint against him with the Police, but denies that at that time he had got managed the Police officials and by encroaching over the drainage and by obstructing the passage about 3 feet, has constructed the compound wall.
So when the Defendant No.1 contends that, he has constructed the compound wall, 2 years bank, then definitely it is constructed during the pendency of this suit. Hence claim of the Plaintiff is not barred by limitation.52 OS No.17675/2005
35. The Defendant No.1 has not proved as to what is the point of commencement of limitation and what is the period of limitation and further failed to show that, how the claim of the Plaintiff sought for, in the amended suit plaint is barred by Law of Limitation. In the absence of it, it is hard to believe that the claim of the Plaintiff, claimed under amended suit plaint is barred by Law of Limitation. Hence, I answer Addl. Issue No.2 IN THE NEGATIVE.
36. ISSUE No.5: The Plaintiff has contended that, he has not received katha pertaining to the property purchased by him under Ex.P.5-Sale Deed dtd.08.08.1988. Further contends that due to the pendency of this suit, the Defendant No.3 is not recording the transfer of katha in the name of the Plaintiff, in respect of the said property.
37. The Defendant No.3 has contended in Para No.12 of its Written Statement that, the Plaintiff has not issued any notice to it for effecting katha in his name, in respect of the portion of property bearing No.59/1.
53 OS No.17675/200538. The Plaintiff has not produced any document to show that, he has applied to the Defendant No.3 for change of katha and the Defendant No.3 has not transferred the katha pertaining to the property purchased by him under Ex.P.5-Sale Deed dtd.08.08.1988.
39. Coming to the ocular evidence of the Defendant more specifically at cross examination of DW.1, Page No.20, Para No.2, which reads as under:
" It is false to suggest that due to our filing of the suits at O.SNos.1078/1988, 5243/2001, 2614/2006, the Plaintiff has not received the khata pertaining to the purchased property. It is false to suggest that on spot inspection by the BBMP authority, we are projecting the said property under litigation, for the said reason BBMP authorities were not allotting to the khata number to the property purchased by the Plaintiff.
As per this piece of evidence, it is suggested on behalf of the Plaintiff to DW.1 that due to pendency of the suits, the Plaintiff has not received the katha pertaining to the purchased 54 OS No.17675/2005 property and the Defendants at the time of spot inspection by the BBMP authorities are projecting that the said property is under litigation, for the said reasons BBMPM authorities have not allotted or transferred the katha in the name of the Plaintiff.
40. Inorder to suggest it, first the Plaintiff has to show that he has filed an application to the Defendant No.3, requesting for change of katha in his favour, on the basis of Ex.P.4-Registered Sale Deed dtd.08.08.1988. Secondly, the Plaintiff has to show that on the basis of the said application, spot inspection was conducted by the BBMP officials-Defendant No.3. In the absence of any document to that effect, the contentions of the Plaintiff will be totally hallow and baseless.
41. Further the relief claimed by the Plaintiff against Defendant No.5 is the relief, which is to be granted by the Hon'ble Courts which are having prerogative powers under the Writ Jurisdiction. This Court being the Civil Court has no such Jurisdiction/Power to grant such 55 OS No.17675/2005 reliefs. Hence, for the above reasons, I answer Issue No.5 IN THE NEGATIVE.
42. ISSUE NO 3:
The Plaintiff has contended that the Defendant No 1 has encroached over the passage situate towards the Southernside of his property.
43. Coming to the ocular evidence of the Defendant No 1, more specifically Cross examination of DW1, at Page No 8, Para No 15, line Nos 1 to 7, which reads as under:
"À FUÀ vÉÆÃj¹zÀ 4 ¥sÉÇÃmÉÆÃUÀ¼À°è ¦APï §tÚ¢AzÀ vÉÆÃj¹zÀ ¸ÀévÀÄÛ £ÀªÀÄä ¸ÀévÁÛVgÀÄvÀÛzÉ ªÀÄvÀÄÛ ±Éqï£ÉÆA¢UÉ VqÀUÀ½gÀĪÀ ¸ÀévÀÄÛ F zÁªÉAiÀÄ ªÁ¢AiÀÄgÀ ¸ÀévÀÄÛ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀjAiÀĪÀÅUÀ¼À°è£À ªÀ¸ÀÄÛ¹ÜwAiÀÄ£ÀÄß ¸ÁQëzÁgÀgÀÄ M¦àPÉÆArzÀÝjAzÀ CªÀÅUÀ¼À£ÀÄß PÀæªÀĪÁV ¤.¦.10 jAzÀ ¤.¦.13 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ. ¤.¦.12 gÀ°è PÀqÀ¥À PÀ°è¤AzÀ PÀAqÀħgÀĪÀ ¸ÀeÁÓ zÁªÁ ¸ÀévÁÛzÀAvÀºÀ ¥Áå¸ÉÃeï£À°è DPÀæ«Ä¹PÉÆArgÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è......"
As per this DW1/Defendant No 1 has admitted the factual situation prevailing at the site of the suit schedule passage, by admitting the positive photographs, marked on confrontation as ExP10 to ExP13.
56 OS No.17675/2005Further as per the Cross examination of DW1 at Page No 10, Line Nos. 5 to 9, which reads as under:
"À .......... vÀzÀ£ÀAvÀgÀ PÀnÖzÀ PÀlÖqÀzÀ ¸ÀeÁÓ ªÀÄvÀÄÛ ¨ÁV®£ÀÄß ªÁ¢AiÀÄ ¸ÀéwÛ£À £ÀA.59-1 gÀ PÀqÉUÉ ©nÖzÉÝÃªÉ J£ÀÄߪÀÅzÀÄ ¤d. ¸ÀzÀj ¨ÁV®Ä D PÀqÉUÉ EgÀĪÀ £ÀªÀÄä øÀévÀÄÛ £ÀA.59 ªÀÄvÀÄÛ 59-1£ÀÄß G¥ÀAiÉÆÃV¸ÀĪÀ ¸À®ÄªÁV ©nÖgÀÄvÉÛêÉ. ¸ÀzÀj ªÉÄÃ¯É ºÉýzÀ ¥Áå¸ÉÃeï 59-1 gÀ ¸ÀéwÛ£À°è §gÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¤d........."."
As per this DW1/Defendant No 1 admits the existence of Door and a window belonging to him, which are facing towards the said passage, situated inbetween his property and the property of the Plaintiff.
44. Further as per ExP10 to ExP13-Positive Photographs, it can be seen that sajja (projection) on the said door and the window is put with kadapa black stone tiles, which is coming on the said passage, which amounts to encroachment by the Defendant No 1, on the said passage. Thus, apprehension of injury or belief on the part of the Plaintiff, coupled with the Intention of the Defendants to do certain act, which harms the Plaintiff, amounts to interference by the Defendants, since the act apprehended by the 57 OS No.17675/2005 Plaintiff and intended by the Defendants is such that, if completed, give a ground for action, there is a foundation for the exercise of jurisdiction. Thus it amounts to interference. Hence, I am of the firm opinion that Plaintiff has proved that the prospect or apprehension and belief coupled with intention of the Defendants, if completed, will give rise to a cause of inflicting injury or receiving injury, by damaging, destroying or dismantling the property of the Plaintiff. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka reported in ILR 1978 Page 1560; in the case of Gopal M Hegde & Ors Vs U F M Narasimha Ganap Bhat & Ors, wherein it is held that, "when the Plaintiff proves the intention on the part of the defendants, to do an act or existence of the act, which in the opinion of the Court, if completed, give ground of action, there is foundation for the exercise of jurisdiction".
Thus, the Plaintiff has proved the interference from the side of the Defendants, over the passage situated towards the Southern side of 58 OS No.17675/2005 his property. Hence, I answer Issue No 3 IN THE AFFIRMATIVE.
45. ISSUE No.6:
For having answered Issue Nos. 1 and 2Partly in the Affirmative; Issue No.3 in the Affirmative; Issue Nos.4 and 5 in the Negative; Addl. Issue No.1 Partly in the Affirmative; Addl. Issue No.2 in the Negative and Addl. Issue No.3 in the Affirmative. Thus, I proceed to pass the following:
ORDER Suit of the Plaintiff is Decreed in Part.
The passage measuring East to West-23-Feet and North to South, towards Eastern side 2-Feet and towards Western side 3 ½ Feet, running East to West, inbetween the property of the Plaintiff and the Defendant No.1, is declared as a common passage (private), to be used by the Plaintiff, Defendant Nos.1 and
2.
Defendant No.1 is hereby directed by way of Mandatory Injunction to remove the Sajja (projection) formed by way of kadapa black tiles and cement sheets on the doors and 59 OS No.17675/2005 window, situated in the Northern side wall of the Defendant No.1, causing obstructions in the enjoyment of the passage, situated towards the Southern side of the property of the Plaintiff, within one month on or before 28.09.2019.
Further Defendant No.1 is hereby directed by way of Mandatory Injunction to remove the compound wall, measuring 2-Feets, situated towards the Eastern side of the passage running East to West, declared as the common passage, within one month on or before 28.09.2019.
Further the Defendant No.1 is directed by way of Mandatory Injunction to get changed the pattern of openings of the Doors and the Window, so that they should get opened inside and not outside, so as to form obstructions for the use of the passage situated towards Southern side of the property of the Plaintiff. Defendant No.1 shall get it done within one month on or before 28.09.2019.
In case, if the Defendant No.1 fails to remove the sajja (projection), the compound wall, and get changed the pattern of openings of the doors and window fixed in his Northern side wall, as ordered, the Plaintiff will be at liberty to get the same removed, and get changed the pattern of openings of the doors and window, 60 OS No.17675/2005 as per Law, which will be at the cost of the Defendant No.1.
The Defendant Nos.1 and 2 are hereby restrained by an order of Permanent Injunction from interfering the Plaintiff, in the peaceful enjoyment of the passage situated towards the Southern side of the Plaintiffs' property.
The suit of the Plaintiff against the Defendant No.3, is dismissed.
Looking to the special facts and circumstances of the case, both the parties shall bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 28th day of August, 2019) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) SUIT SCHEDULE PROPERTY:
All the piece and parcel of the common passage and measuring east to west 23 feet and North to South 5 feet situated at No.59/1 Kadiranapalyam, Indiranagar Post, Bengaluru 560038, bounded on:61 OS No.17675/2005
East by : Drainage West by : Continuation of Passage 59/1 North by : Plaintiff site 59/1 South by : Defendant No.1 property No.59. East to West 23 feet and north to south 5 feet common passage as per site plan.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Sri. Balasubramanyam.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF:
Ex.P.1: Certified copy of the Release Deed dt. 16.08.1984.
Ex.P.2: Certified copy of the Partition Deed dt. 17.08.1984.
Ex.P.3: Certified copy of the Sale Deed dt. 16.07.1987.
Ex.P.4 : Certified copy of the Sale Agreement dt. 27.01.1988.
Ex.P.5: Certified copy of the Sale Deed dt. 08.08.1988.
Ex.P.6: Copy of the complaint to the police. Ex.P.7: Certified copy of the mahazar.62 OS No.17675/2005
Ex.P.8: Certified copy Commissioner's report filed in O.S.No.5243/2001.
Ex.P.9: Certified copy of the evidence of PW.1 in O.S.No.2614/2006.
Ex.P.10 to Ex.P.13: Positive Photographs. Ex.P.14: Certified copy of ordersheet in O.S.No.5243/2001.
Ex.P.15, 15(A) to Ex.P.15(D) : Certified copy of commissioner report in O.S.No.5243 of 2001, spot mahazar with two rough hand sketches, objections filed to the said commissioner report.
Ex.P.16, 16(A) to Ex.P.16(D): Office copy of the Legal notice dt.26.10.2005, with postal receipt and acknowledgement.
Ex.P.17 to Ex.P.27: Ten photographs and one CD.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: P. Natarajan.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D.1: Certified Copy of the Sale Deed dtd.15.04.1958.
Ex.D.2: Certified Copy of release Deed dtd.16.08.1984.
Ex.D.3: Certified Copy of the Partition Deed Dtd.20.06.1984.63 OS No.17675/2005
Ex.D.4: Certified Copy of the sketch annexed to the partition Deed.
Ex.D.5 & Ex.D.6: Certified copy of the Judgment and Decree passed in O.S.No.1078/1988.
Ex.D.7 & Ex.D.8 : Certified copy of the Judgment and Decree in O.S.No.5243/2001.
Ex.D.9: Certified copy of the Judgment passed in RFA.No.1072/2010.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)