Bangalore District Court
)Smt.Ramakka W/O.Late Doddanna vs ) A.Kumar S/O Late N.Appaiah on 11 January, 2016
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY
Dated on this the 11th Day of January 2016
-: Present :-
Smt. Hemavathi BBM, LL.B,
XXXIX Additional City Civil & Judge,Bangalore City.
Original Suit No.2220/2009
Plaintiff : 1)Smt.Ramakka W/o.late Doddanna,
80 Years,
2)Mune Gowda D S/o Late
Doddanna, aged about 55 years,
First plaintiff is represented by her
General Power of Attorney holder
Mune gowda, the 2nd plaintiff herein
residing at Kaval Byrasandra
R.T.Nagar Post, Bangalore-32
[By Sri. K.Bhanu Prasad, Advocate]
/ VERSUS /
Defendants : 1) A.Kumar S/o Late N.Appaiah, aged
about 55 years
2) A.Mohan S/o Late N.Appaiah, aged
about 40 years
3) A.Manjunath S/o Late N.Appaiah,
aged about 38 years
All residing at Shampura Main
road,Kaval Byrasandra, Opp:Ambedkar
Medical College, Near Santhosh
Enterprises, Bangalore-32
(by Sri P.S., Advocate)
/2/ O.S.Nos.2220/2009
: 30.03.2009
Date of Institution
Nature of suit : Injunction Suit
Date of commencement : 22.06.2010
of evidence
Date on which judgment : 11.01.2016
is pronounced
Duration taken for Years Months Days
:
disposal 06 09 12
***
JUDGMENT
This suit is filed by the plaintiffs for the relief of mandatory injunction to direct the defendants to remove the sanitary pipe line installed within the suit schedule property and also for the relief of permanent injunction restraining the defendants from interfering, trespassing, digging trenches or putting up any kind of illegal and unauthorized construction over the suit schedule property and to grant such other relief with costs.
2. The brief facts of the plaintiffs case are that they are the absolute owners in possession and enjoyment of land bearing Sy.No.41 measuring 1 acre 38 guntas situated at /3/ O.S.Nos.2220/2009 Kavalbyrasandra, Kasaba Hobli, Bangalore North taluk, which consists of construction thereon and includes portion which has been made use of for formation of road and excludes the portion where there is a temple and said land has been converted into non-agricultural for residential purposes as per the Order of the Deputy Commissioner dated.27.4.1981. Towards the western side of Sy.No.41, Sy.No.47/1 which belongs to the Plaintiffs, Sy.No.47/2 belonging to defendants 1 to 3, Sy.No.47/3 belonging to Smt.Akkayamma, W/o Late Papanna, Anjanappa and Krishnappa, Sy.No.47/4 belonging to the LRs of one Late Sonnappa, Sy.No.47/5 and 47/6 belonging to Krishnappa, Anjanappa, Ramaiah and Sy.No.47/7 belonging to P.Narayanappa and B.N.Narasimha Murthy are situated and towards western side of the Sy.No.41, Sy.Nos.40 and 42 are situated. There is no dispute by the owners of Sy.Nos.40 and
42. Towards east of Sy.No.41, land bearing Sy.No.115 is situated and in the southern portion of Sy.No.41, the plaintiffs have put up construction. The portion of suit schedule property comprised in Sy.No.41 lies adjacent to the land of /4/ O.S.Nos.2220/2009 defendants i.e., Sy.No.47/2 and within the portion of the plaintiffs there is Sapalamma Devi temple and there also exists a cart track running in the portion of suit Sy.No.41 towards its northern portion and it takes turn and passes through Sy.No.115 of Kadugonanahalli village. Towards northern side of suit Sy.No.41 there is newly formed road by the BDA and consequent upon the formation of the road by the BDA, the old cart track which was in existence earlier came to be merged with the newly formed road by the BDA. The defendants have no right, title or interest or possession over any portion of the suit schedule property and the suit schedule property continuous to be in possession and enjoyment of the plaintiffs. The father of defendants N.Appaiah and his brother Munibyrappa had filed a suit in O.S.No.4049/1992 against the 2nd plaintiff and also one J.Prakash Narayana seeking the relief of declaration and permanent injunction with regard to land bearing Sy.No.47/2 situated at Kaval byrasandra, Bangalore alleging that the plaintiffs therein had tried to encroach a portion of the suit property and they had also sought for easementary right and /5/ O.S.Nos.2220/2009 the said suit was dismissed by the Judgment and decree dated.27.8.2005 and defendants No.1 to 3 herein have come on record as the L.Rs of the deceased Appaiah in the said suit. But the plaintiffs therein have not preferred appeal against the said Judgment and decree. These plaintiffs had filed a suit in O.S.No.2711/1995 against Muni Byrappa, N.Appaiah who is father of defendants No.1 to 3 herein and other persons who are the owners of land bearing Sy.Nos.47/2 and 47/7 which are situated towards the western side of the land bearing Sy.No.41 and the said suit came to be dismissed on technical ground by Judgment and decree dated.20/02/2007. Aggrieved by the said Judgment and decree, the plaintiffs preferred RFA No.670/2007 which is pending before the Hon'ble High Court. The defendants having no right, title or interest over suit Sy.No.41 have managed to lay 9 inches sewage line within the portion of land bearing Sy.No.41 belonging to the plaintiffs. Though the plaintiffs have lodged complaint and also made representation to the Commissioner, BWSSB, on 11.7.2008 when the defendants attempted to encroach the portion of /6/ O.S.Nos.2220/2009 the suit schedule property, no action has been taken against the defendants, but they have colluded with defendants No.1 to 3 and on 28.2.2009 had managed to lay 9 inches sewage line within the portion of land bearing Sy.No.41 belonging to the plaintiffs. In the mid night and on the very next morning the plaintiffs have complained to the concerned officials and also gave representation to the Chairman, BWSSB, the Chief Engineer, BWSSB, the Executive Engineer, BWSSB, the Asst.Executive Engineer N-e, the Asst.Executive Engineer, BWSSB and also to the Circle Inspector, Devara Jeevanahalli Police Station. But they have not taken any action. Hence filed the suit.
3. Defendants filed written statement denying the averments made in the plaint and contended that the plaintiffs are fraud and land grabbers. They are trying to manipulate the records of the lands owned by the defendants which are totally irrelevant and Sy.No.41 does not exist. It is the property of the defendants in Sy.No.47/2 which has been in existence and which the defendants are in possession. At /7/ O.S.Nos.2220/2009 no point of time, the plaintiffs are the owners of the suit schedule property and whatever the work of digging the earth and laying of the sanitary line which is being carried out by the BWSSB and BMP authorities as per the tender notification is not in Sy.No.41. The plaintiffs have given false information regarding the ongoing development works in the kaval Byrasandra locality and have filed this false suit. Hence prayed to dismiss the suit with costs.
4. On the basis of the pleadings of the parties, the learned predecessor of this Court has framed the following issues :
1) Whether the plaintiffs prove that they are in lawful possession and enjoyment of the plaint schedule property as on the date of suit as contended ?
2) Do the plaintiffs prove that on 28.2.09 the defendants have illegally laid 9"
sewage line within the portion of the suit schedule property bearing Sy.No.41 by encroaching the same, as alleged?
/8/ O.S.Nos.2220/2009
3) Do the plaintiffs prove the interference of the defendants to the suit schedule property as alleged?
4) Are the plaintiffs entitled for the relief of mandatory injunction as prayed ?
5) Are the plaintiffs entitled for the relief of permanent injunction as sought?
6) What order or decree ?
5. Plaintiffs examined 2nd plaintiff as P.W.1 and got marked 35 documents as per Exs.P.1 to P.35. Defendant No.2 examined himself as D.W.1 and got marked Exs.D.1 to D.11.
6. Heard both sides.
7. My findings on the above issues are :
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Issue No.4 : In the Negative.
Issue No.5 : In the Negative Issue No.6 : As per the final order, for the following reasons.
/9/ O.S.Nos.2220/2009
REASONS
8.Issues No.1 to 3 : As these issues are interlinked, to avoid repetition of facts and evidence, I have taken up these issues together for discussion.
9. It is the case of Plaintiffs that the land bearing Sy.No.41 measuring 1 acre 38 guntas situated at Kavalbyrasandra, Kasaba Hobli, Bangalore North taluk, which consists of construction thereon and includes portion which has been made use of for formation of road and excludes the portion where there is a temple, is in their possession and enjoyment. Towards the western side of Sy.No.41, property in Sy.No.47/1 which belongs to the Plaintiffs, Sy.No.47/2 belonging to defendants 1 to 3, Sy.No.47/3 belonging to Smt.Akkayamma, W/o Late Papanna, Anjanappa and Krishnappa, Sy.No.47/4 belonging to the LRs of one Late Sonnappa, Sy.No.47/5 and 47/6 belonging to Krishnappa, Anjanappa, Ramaiah and Sy.No.47/7 belonging to P.Narayanappa and B.N.Narasimha Murthy are situated and towards western side of the / 10 / O.S.Nos.2220/2009 Sy.No.41, the properties in the Sy.No.40 and 42 are situated.
Towards east of Sy.No.41, land bearing Sy.No.115 is situated and in the southern portion of Sy.No.41 the plaintiffs have put up construction. The portion of suit schedule property comprised in Sy.No.41 lies adjacent to the land of defendants i.e., Sy.No.47/2 and within the portion of the plaintiffs there is Sapalamma Devi temple and there also exists a cart track running in the portion of suit Sy.No.41 towards its northern portion and it takes turn and passes through Sy.No.115 of Kadugondnahalli village. The defendants having no right, title,interest or possession over any portion of the suit schedule property have dug the earth with intention to lay sewage line within the portion of land bearing Sy.No.41 belonging to the plaintiffs. In spite of the plaintiffs lodging complaint and also making representation to the Commissioner, BWSSB, the defendants attempted to encroach the portion of the suit schedule property on 11.7.2008 and on 28.2.2009, defendants 1 to 3 colluding with BWSSB, had managed to lay 9 inches sewage line within the portion of land bearing Sy.No.41 belonging to the plaintiffs.
/ 11 / O.S.Nos.2220/2009
10. The defendants denied the said fact contending that the suit schedule property is not in existence and at no point of time, the plaintiffs are the owners of the said property and it is the property of the defendants in Sy.No.47/2 which is in existence and it is in their possession and whatever the work of lying sewage pipeline carried out by BWSSB and BBMP authorities is not in Sy.No.41.
11. PW1 in his chief examination has deposed on par with the plaint averments. In the cross-examination he has deposed that he has not made any attempt to know who is doing work in the disputed area. He denied that as per the tender called by BWSSB, these defendants being the contractors have laid the pipeline. He denied that he himself laid sewage pipeline for the sake of construction. Except this oral evidence he has not examined any other independent witness. To prove his case, he has produced Ex.P1, the General Power of Attorney given by 1st plaintiff in his favour, Ex.P2, the sale deed dated.4.11.1948 executed by one Govindaraju PIllai and another in favour of LM.Doddanna in / 12 / O.S.Nos.2220/2009 respect of Sy.No.36, 38, 39, 40, 41, 42, 43, 44. Ex.P3 is the index of land where name of Doddanna is found in respect of Sy.No.41. Ex.P5 is the copy of tippani relating to Sy.No.No.42/1. Ex.P6 is the uttar copy of Sy.No.47/1. Ex.P7 is uttar copy relating to Sy.No.41. Ex.P8 and P9 are settlement Akarbandh. Ex.P10 to 16 are the RTC. Ex.P17 is the challan for payment of tax. Ex.P18 is the conversion order dated.6.2.1982 in respect of Sy.No.41 of Kavalbyrasandra village. Ex.P19 to 21 are the RTC. Ex.P22 is the certified copy of the Judgment in O.S.4049/1992 filed by one Muni Byrappa and others against the 2nd plaintiff herein and one Jayaprakash Narayan. Ex.P24 is the copy of the Judgment in O.S.2711/95 filed by plaintiffs herein against Muni Byrappa and another. Ex.P26 is the certified copy of the petition in RFA No.670/2007. Ex.P27 is the rough sketch produced along with the plaint. Ex.P28 is the order of Hon'ble High Court in Mis.Civil No.5092/2009. Ex.P29 is the copy of the complaint dated.16.6.2007 lodged by 2nd plaintiff to Commissioner, BBMP. Ex.P30 is the endorsement issued by the Commissioner for receipt of the complaint. Ex.P31 is the / 13 / O.S.Nos.2220/2009 copy of the complaint dated.11.7.2008 lodged by the plaintiff to the Assistant Executive Engineer, BBMP. Ex.P33 is the endorsement issued by D.K.Halli police. Ex.P34 and P35 are the photos. The revenue records which are RTC and Settlement Akarbandh produced by the plaintiff reveal the name of Doddanna as purchaser of Sy.No.41 and the name of 1st plaintiff is found in Ex.P16, P19 and P20 in respect of suit schedule property which are for the years 1988-89, 1989- 90 and 2002-03. On going through Ex.P24, it reveals that the plaintiffs herein have filed a suit against Munibyrappa who is father of defendants 1 to 3 herein and others for the relief of declaration to declare that they are the absolute owners in possession and enjoyment of the property bearing Sy.No.41 measuring 1 Acre 38 Guntas converted land excluding the area where 60 Feet road is situated and also the area where the Sapalammadevi temple is situated and also for the relief of permanent injunction to restrain the defendants from interfering with the plaintiffs' possession and enjoyment over the suit schedule property and also from putting up any construction. So it is clear that the earlier suit filed in / 14 / O.S.Nos.2220/2009 O.S.No.2711/1995 is in respect of suit schedule property. On going through Ex.P24 it reveals that the said suit was dismissed as per Judgment and Decree dated.20.2.2007 for the reason that the suit schedule Sy.No.41 was notified for acquisition by BDA. Hence the Civil Court has no jurisdiction to decide the ownership of the plaintiffs. Admittedly the plaintiffs had challenged the said Judgment and Decree in RFA No.670/2007 before the Hon'ble High Court and it is still pending and as per Ex.P28 the Hon'ble High Court had directed both the parties to maintain status-quo in respect of the said suit schedule property. So it is very clear that the title of the plaintiffs has not been decided so far in respect of Sy.No.41. When such being the fact, the present case filed by the plaintiffs claiming that they are in lawful possession and enjoyment of the suit schedule property as on the date of the suit is not maintainable. No material has been produced by the plaintiffs to show that the said acquisition proceedings has been cancelled. Further in view of the Judgment as per Ex.P24 and in view of the pendency of the proceedings before the Hon'ble High Court as per Ex.P26, this Court has / 15 / O.S.Nos.2220/2009 no jurisdiction to decide about the issue of possession of the plaintiffs over the suit schedule property.
12. The plaintiffs have not produced the present RTC of the suit schedule property to prove their possession or ownership over the suit schedule property. Of course in the cross-examination, as rightly argued by the advocate for the plaintiffs, the defendant has deposed in his cross- examination that the Sy.No.47/1 to 47/7 are situated towards west of the suit schedule property and they are not claiming any part of Sy.No.41 and they have documents to show that they are owners of suit Sy.No.41. Even in the affidavit filed for chief-examination at para 2 he has deposed that they are the absolute owners in possession and enjoyment of the suit schedule property. But this evidence of DW1 no way help the plaintiffs to show that suit Sy.No.41 still belongs to their ownership and it is in their possession and enjoyment, as argued by the learned advocate for the plaintiffs. It is the plaintiffs who have to prove their case independently. But as discussed above, the suit in O.S.No.2711/1995 filed by the / 16 / O.S.Nos.2220/2009 plaintiffs seeking the relief of declaration of their ownership and possession over the suit schedule property is dismissed and the RFA preferred by the plaintiffs is still pending before the Hon'ble High Court and no document is produced by the plaintiffs which shows that the plaintiffs are the absolute owners in possession and enjoyment of the suit schedule property as on the date of suit or as on today subsequent to dismissal of the suit in O.S.No.2711/1995. Any admission or any amount of evidence on the part of the defendants no way help the plaintiffs to prove their case. Ownership of the parties cannot be adjudged on the basis of the oral evidence alone. Even though the plaintiffs have produced registered sale deed in respect of their ownership over the suit schedule property as it is observed in O.S.No.2711/1995 that the said property was notified for acquisition, unless and until the said acquisition is cancelled, the plaintiffs cannot claim ownership or possession over the said property. Therefore I hold that the plaintiffs have failed to prove their possession over the suit schedule Sy.No.41.
/ 17 / O.S.Nos.2220/2009
13. When the plaintiffs have failed to prove their possession over the suit schedule Sy.No.41, the question of considering therefore installation of sanitary pipeline in the suit schedule property by the defendants No.1 to 3 does not arise. However even if it is considered that the said sewage pipeline is situated in the suit schedule Sy.No.41, the plaintiffs except oral evidence have not produced any corroborative evidence. Of course as contended by the defendants in para No.9 of the written statement it can be said that the sanitary pipeline was installed in the locality of Kavalbyrasandra. But the defendants have denied that it is situated in Sy.No.41. Even in the chief examination, though DW1 has stated at para 2 that they are the absolute owners in possession and enjoyment of the suit schedule property, he denied that they have laid sewage pipeline within the portion of suit schedule property. Even in the cross- examination nothing is elicited to show that the pipeline is drawn in the portion of the suit schedule Sy.No.41. When such being the fact it is the plaintiffs who have to prove that the sewage pipeline is laid in the portion of the suit Sy.No.41 / 18 / O.S.Nos.2220/2009 and it is laid by the defendants. Of course the plaintiffs have produced Ex.P29 to P33 which are copies of the complaint given to BBMP and endorsements given by BBMP and police. Though Ex.P32 dated.2.3.2009 refers to alleged act of the defendants on 28.2.2009, there is no document on the part of the plaintiffs to show that this notice was served on the concerned person whose name is shown in the said notice. Admittedly this notice was not issued to these defendants. Therefore, this document in no way help the plaintiffs to prove that the defendants laid 9" sewage pipeline on 28.2.2009 in the portion of the suit schedule property as alleged in the plaint. Therefore, I hold that the plaintiffs have failed to prove the said allegation against the defendants.
14. When the plaintiffs have failed to prove that they are in lawful possession and enjoyment of the suit schedule property as on the date of the suit and the defendants have laid 9" sewage pipeline on 28.2.2009 within the portion of suit schedule property, the allegation of the plaintiffs that there is interference by the defendants in their possession over the / 19 / O.S.Nos.2220/2009 suit schedule property cannot be accepted. Therefore, I hold that the plaintiffs have failed to prove Issue Nos.1 to 3 in the negative.
15. Issue Nos.4 and 5 :- In view of my findings on Issue Nos.1 to 3, the plaintiffs are not entitled for any relief. Hence, I answer Issue Nos.3 and 4 in the negative.
16. Issue No.6:- In view of the above discussions, I proceed to pass the following:
ORDER Suit filed by the plaintiff in dismissed. (Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in the open court, this the 11th day of January 2016) (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE:-
1. List of witnesses examined for plaintiff :
P.W.1 : Munegowda
/ 20 / O.S.Nos.2220/2009
2. List of witnesses examined for defendants:
D.W.1 : A.Mohan
2. List of documents exhibited for plaintiff :
Ex.P.1 : General Power of attorney
Ex.P.2 : attested copy of Sale deed
Ex.P.3 : Index of Land
Ex.P.4 : R of R extract
Ex.P.5 : Uttarcopy.
Ex.P.6 : Kharab uttarcopy
Ex.P.7 : Uttarcopy
Ex.P.8 & P.9 : Settlement Akarbandh
Ex.P.10-16 : Records of Right
Exs.P.17 : Challans
Ex.P.18 : Conversion Sanction Certificate.
Ex.P.19-21 : Records of Rights
Ex.P. 22 : Judgment passed in O.S.4049/1992.
Ex.P.23 : Decree passed in O.S.4049/1992.
Ex.P.24 : Judgment passed in O.S.2711/1995.
Ex.P.25 : Decree in O.S.2711/1995
Ex.P.26 : Attested copy of RFA No.670/2007
Ex.P.27 : Sketch
Ex.P.28 : Order passed in RFA No.670/2007
Ex.P.29 : Complaint
Ex.P.30 : Acknowledgment
Ex.P.31 : Complaint
Ex.P.32 : Copy of Notice
/ 21 / O.S.Nos.2220/2009
Ex.P.33 : Acknowledgment
Ex.P.34 & 35 : Photographs
Ex.P.34(a) &
35(a) : Negatives
3. List of documents exhibited for defendants:
Ex.D.1 : Copy of Judgment in O.S.2711/1995 Ex.D.2 : Certified copy of Decree Ex.D.3 : Certified copy of Order passed in O.S.No.6864/95.
Ex.D.4 : Special Power of Attorney
Ex.D.5 : Endorsement given by BDA
Ex.D.6 : Representations given by defendants
Ex.D.7 : Complaint copy
Ex.D.8 : Endorsement given by police
Ex.D.9 : Six photos
Ex.D.10 : C. D.
Ex.D11 : Receipt of Digital Photo Studio
(Hemavathi)
XXXIX Additional City Civil &
Sessions Judge, Bangalore City.
***
Mn
/ 22 / O.S.Nos.2220/2009
/ 23 / O.S.Nos.2220/2009
Judgment pronounced in
the open Court (Vide separate
Judgment)
ORDER
Suit filed by the plaintiff in
dismissed.
XXXIX Additional City Civil &
Sessions Judge, Bangalore City.