Bangalore District Court
Sri B. Jagannathan vs The Tahasildar on 2 December, 2017
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: SRI S.H. HOSAGOUDAR
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge.
Dated this the 2nd day of December 2017
PLAINTIFF: Sri B. JAGANNATHAN
Aged about 40 years,
S/o Sri Balasubramanian
Flat No.G-C, "Maruthi Mansion",
Ground Floor, Mahalakshmi Maruthi
Mansion Apartments,
No.10-6-1 & 10-2-6,
1st Cross Road,
Saraswathipuram,
Nandini Layout,
Bangalore-560 096.
[By Sri N.G.Sreedhar, Advocate]
/v e r s u s/
DEFENDANTS: 1. The Tahasildar,
Bangalore North (Additional)
Taluk, Yelahanka, BANGALORE.
2. The State of Karnataka
Represented by :-
The Principal Secretary,
Government of Karnataka,
Revenue Department,
M.S.Building,
Dr. Ambedkar Veedhi,
BANGALORE-560 001.
[By Smt. Sunitha H.Singh, Advocate]
2 CT0028_O.S._4918_2010_Judgment_
.
Date of institution of the : 17/7/2010 suit Nature of the suit : For Injunction Date of commencement of : 6/1/2011 recording of the evidence Date on which the : 2/12/2017 Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
7 4 16
(S.H. Hosagoudar)
XXVII ACCJ: B'LORE.
Plaintiff filed this suit against defendants for the relief of permanent injunction restraining the defendants or their officials or their agents from interfering with the plaintiff's peaceful possession and enjoyment of the 'B' schedule property and also from dispossessing the plaintiff from the suit 'B' schedule property or any part thereof.
2. In brief the plaintiff's case are as under:
That the plaintiff is the owner of suit 'B' schedule property which is situated in the ground floor of 'A'
3 CT0028_O.S._4918_2010_Judgment_ .
schedule property. The plaintiff has purchased the 'B' schedule property from one B.N.Swamy represented by his GPA holder M/s Jagan Associates for valuable consideration under the registered sale deed dated 10/5/2006. That the then Government of Mysore way back in the year 1966 by due deliberation in respect of the land bearing sy.no.1 new no.145 of Jarakabande Kaval village, Yelahanka Hobli, Bangalore North taluk, measuring total extent of 73 acres 5 guntas decided to dispose the same in favour of various individuals for assessed upset price. In the course of the same, the larger extent of land measuring 2 acres 30 guntas comprehending 'A' schedule property herein has been granted in favour of one Annaiah under Order dated 16/2/1967. The revenue authorities pursuant to the aforesaid order passed by the Government of Mysore have duly mutated their revenue records in favour of said Sri Annaiah in respect of said land comprehending 'A' schedule property. Thereafter, the said owner Sri Annaiah way back during the year 4 CT0028_O.S._4918_2010_Judgment_ .
1970 sold the said extent of property in favour of one W.H.Gopal for valuable consideration under registered sale deed dated 23/2/1970. Pursuant to which revenue records of the larger extent of land duly mutated in favour of said W.H.Gopal in the office of revenue authorities. The said W.H.Gopal in turn sold the land comprehending 'A' schedule property to one M.R.Prakash for a valuable consideration vide sale deed dated 14/8/1972 in favour of one M.R.Prakash for valuable consideration. The said M.R.Prakash has obtained conversion sanctioned certificate dated 1/9/1979 issued by the office of the Tahasildar, thereby certifying the alienation of the land comprehending 'A' schedule property from agriculture purpose to non-agriculture residential utility. The said M.R.Prakash has executed and registered GPA in favour of one B.M.Narasimhamurthy thereby empowering him inter alia to do all acts things and deeds on his behalf. The registered GPA holder B.M.Narasimhamurthy acting upon the powers 5 CT0028_O.S._4918_2010_Judgment_ .
conferred to him by his principal M.R.Prakash sold the land measuring (62 feet + 34 feet) /2 X (85 feet + 73 feet) / 2 as one portion and another portion of the same measurement were sold to common purchaser namely B.N.Swamy. B.N.Swamy has been compositely developed two portions of property. Thereafter, B.N.Swamy along with his registered GPA holder i.e., M/s Jagan Associates have formulated a development scheme so as to put up multistoried dwelling units i.e., the 'A' schedule property herein pursuant to which they have approached the Bangalore Mahanagara Palike which authority has issued sanctioned plan bearing L.P.No.1027/2005-06. The plaintiff has purchased 'B' schedule property in 'A' schedule property and he is in lawful possession and enjoyment of the same since from the date of purchase. Defendant no.1 has initiated proceedings under Section 39 of the Karnataka Land Revenue Act against plaintiff's builder i.e., M/s Jagan Associates in respect of 'A' schedule property and issued notice 6 CT0028_O.S._4918_2010_Judgment_ .
dated 4/8/2009 to the said builder against which the builder has duly replied. The said notice which has issued by first defendant contemplates that land comprising the 'A' schedule property belongs to Government of Karnataka and as such they are empowered to take action under the said Act. The legal right accrued upon plaintiff in respect of suit schedule property is legal and valid. The defendant no.1 without considering reply letters of the builder has passed an order of dispossession vide order dated 11/9/2009. Immediately the said builder vide his letter dated 6/11/2009 has made representation to the first defendant clarifying him that his notice dated 4/8/2009 has been duly replied with relevant documents. However, first defendant has not considered the impugned order passed by him in the light of replies given by the plaintiff's builder and hence an appeal has been preferred under Section 49(a) of Land Revenue Act which remedy however is not alternative efficacious remedy whereunder 7 CT0028_O.S._4918_2010_Judgment_ .
substantive rights of the parties will be adjudicated and it is this court alone which can adjudicate rights of the parties and revenue authorities are bound by that order. The plaintiff is in possession of 'B' schedule property more than 30 years continuously, openly, exclusively by the predecessor in title right since from 1966 upto the date i.e., 4/8/2009 on which date first defendant falsely alleged that land comprising 'A' schedule property belongs to Government of Karnataka. The defendants have no right over the suit schedule property and now they are trying to interfere with the plaintiff's peaceful possession and enjoyment over 'B' schedule property and also trying to dispossess the plaintiff from the 'B' schedule property. Hence this suit.
3. In response to the suit summons issued by the Court, defendants appeared through their Government Advocate and filed written statement. In brief the contents of the written statement filed by the defendants are as under:
8 CT0028_O.S._4918_2010_Judgment_ .
The suit of the plaintiff is not maintainable either in law or on facts. The suit schedule property viz., sy.no. 1 of Jarakabande Kaval village, Yelahanka, Bangalore north taluk earlier totally measuring 519 acres and 37 guntas. Though it is phoded after phodi, survey number was given as new no. 145 which measures 426 acres 36 guntas at present. Whatever alienation that have taken place in respect of survey no.145 they do not affect survey no.1 measuring 21 guntas as shown in the akarband at present. It may be true that some portion of survey no.145 was purchased by different purchasers as alleged by the plaintiff. However, their purchase was only in respect of portion of sy.no.145 and they did not purchase any portion of sy.no.1 muchless 9 guntas in sy.no.1.
Having purchased the portion of sy.no.145 in the year 2007, M/s Jagan Associates illegally encroached into sy.no.1 to the extent of 9 guntas and built their apartment. As such this apartment is standing illegally on sy.No.1 to the extent of 9 guntas. These 9 CT0028_O.S._4918_2010_Judgment_ .
defendants are entitled to remove that part of the apartment which is built by encroaching into sy.no.1 to the extent of 9 guntas. The apartment including its compound has been built encroaching the Government land on an area measuring 9 guntas in sy.no.1 and certain portion of the building in sy.no.145 and as such encroached part of the building is liable to be removed. The sale transaction between plaintiff and M/s Jagan Associates and his predecessor in title does not bind on these defendants and sale was not in respect of part of the land bearing sy.no.1. M/s Jagan Associates did not have any title over any piece of land in sy.no.1 and they constructed apartment by encroaching 9 guntas in sy.No.1.
It is submitted that M/s Jagan Associates have built an apartment recently in the year 2007 and it is only since 2007 that plaintiff and others have been in illegal possession of the apartment. Prior to 2007, these plaintiffs were not in picture at all. Since builder of the plaintiff has encroached the property belongs to 10 CT0028_O.S._4918_2010_Judgment_ .
Government and therefore question of plaintiff becoming owner by doctrine of adverse possession does not arise at all. Plaintiff is not in lawful possession and enjoyment of the 'B' schedule property and hence plaintiff is not entitled for the relief of permanent injunction as sought for against defendants. On these grounds, defendants pray for dismissal of the suit.
4. On the basis of the pleadings of the parties, my predecessor in the office has framed following issues:
(1) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule B property so situated in A schedule property as alleged in the plaint? (2) If so, whether the plaintiff further proves the alleged interference into their peaceful possession and enjoyment of the suit schedule B property and threat of dispossession from B schedule property by the defendant as alleged in the plaint? (3) Whether the plaintiff is entitled for the permanent injunction as prayed?
(4) What decree or order?
11 CT0028_O.S._4918_2010_Judgment_ .
5. The plaintiff is examined as PW.1 and the documents at Ex.P1 to Ex.P5 have been marked. On the other hand Tahasildar, Bangalore North (Additional) is examined as DW.1 and Surveyors are examined as DWs. 2 and 3 and documents at Ex.D1 and Ex.D2 have been marked.
6. In O.S.No.4650/2010, Court Commissioner has been examined as CW.1 and got marked Ex.C1 and Ex.C2 and at the request of both the counsels, Commissioner Report and evidence of the Commissioner will be considered in this case also. Further, advocate for plaintiffs filed Memo stating that evidence given by Commissioner i.e., CW.1 both oral and documentary evidence in O.S.No.4650/2010 is hereby adopted by the plaintiff and requested to consider the evidence of Court Commissioner adduced in O.S.No.4650/2010. Hence with consent of both the side, evidence given by the Court Commission in O.S.4650/2010 will be considered in this case. 12 CT0028_O.S._4918_2010_Judgment_ .
Further, advocate for plaintiff also requested to consider Ex.P8 to Ex.P21 produced in O.S.4650/2010 in this case also. Other side has no objection to consider the said documents in this case. Further, advocate for defendants submits that defendants have produced copy of the notice and order passed by the Tahasildar in O.S.No.4650/2010 which are marked as Ex.D3 and Ex.D4 and requested to consider the same in this case also. Other side has no objection. Hence Ex.D3 and Ex.D4 will be considered in this case also.
7. I have heard the arguments on both sides and perused the entire records of the case. During the course of the argument, learned counsel for the plaintiff has relied upon following decisions:
1. 2014 SAR (CIVIL) 33; 2014 SAR (CIVIL) 185;
2. ILR 1999 KAR 301; and ILR 2000 KAR 4134 13 CT0028_O.S._4918_2010_Judgment_ .
8. Per contra, learned Special Government counsel for the defendants has relied upon following decisions:
1. AIR 2008 SUPREME COURT 2033;
2. AIR 2010 SUPREME COURT 744;
3. (2010) 5 SUPREME COURT CASES 203
4. ILR 1996 KAR 715
9. My findings on the above issues are as under:
Issue No. 1) ............ In the negative; Issue No. 2) ............ In the negative; Issue No. 3) ............ In the negative; Issue No. 4) ............ As per final order for the following:
10. ISSUE NO.1: It is the case of the plaintiff that he is the owner and lawful possession of 'B' schedule property having purchased the same from its vendor under registered sale deed dated 10/5/2006 and since from the date of purchase he is in lawful possession and enjoyment of the 'B' schedule 14 CT0028_O.S._4918_2010_Judgment_ .
property. Further it is the case of the plaintiff that katha has changed in his name and he is paying tax in respect of 'B' schedule property. Further it is the case of the plaintiff that defendants are trying to interfere in the plaintiff's peaceful possession and enjoyment over 'B' schedule property and also trying to dispossess plaintiff from the 'B' schedule property without any justification. Further it is the case of the plaintiff that defendant no.1 without considering the letters of the builders of the plaintiff has passed order dated 11/9/2009 for dispossessing the plaintiff and the said order is not legal and not binding on the plaintiff. Further it is the case of the plaintiff that defendants have no right over the 'A' schedule property.
11. In this case defendants appeared through their counsel and filed written statement denying the case of plaintiff. Defendants contended that sy.no.1 of Jarakabande Kaval village, Yelahanka, Bangalore 15 CT0028_O.S._4918_2010_Judgment_ .
North taluk earlier totally measuring 519 acres and 37 guntas and though it is phoded after phodi, survey number was given a new number as 145 which measures 426 acres 36 guntas at present. Defendants further contended that it may be true that some portion of sy.no.145 was purchased by different purchasers as alleged by the plaintiff, however their purchases was only in respect of portion of sy.no.145 and they did not purchase any portion of sy.no.1 muchless 9 guntas in sy.no.1. Further defendants contended that M/s Jagan Associates illegally encroached into sy.no.1 to the extent of 9 guntas and built their apartment and as such the apartment wherein plaintiff is residing in one flat is standing illegally on sy.no.1 to the extent of 9 guntas. Since 9 guntas of land has been encroached by the builder of M/s Jagan Associates illegally the defendants are entitled to remove that part of the apartment. Further defendants contended that plaintiff is not in lawful possession and enjoyment of the 'B' schedule 16 CT0028_O.S._4918_2010_Judgment_ .
property. Further, defendants contended that 'A' schedule property has been constructed in sy.no.1 by encroaching 9 guntas of Government land and hence plaintiff is not in lawful possession and enjoyment of the 'B' schedule property.
12. In this case plaintiff examined himself as PW.1. He filed affidavit evidence in lieu of his examination in chief. In his examination in chief, he reiterated the plaint averments. He produced in all 5 documents which are marked as Ex.P1 to Ex.P5 and closed his side of evidence. On the other hand, on behalf of defendants, the Tahasildar, Bangalore North is examined as DW.1 and Surveyors are examined as DWs. 2 and 3 and got marked two documents as per Ex.D1 and Ex.D2 and closed their side of evidence.
13. In O.S.No.4650/2010 Surveyor is appointed as Court Commissioner for making local inspection and to give report. Accordingly, Court Commissioner visited the spot and prepared report and sketch and 17 CT0028_O.S._4918_2010_Judgment_ .
submitted the same to the Court. In this case, Court Commissioner is examined as CW.1 and got marked Commissioner Report and Sketch as Ex.C1 and Ex.C2.
14. I have perused entire evidence on record. In this case, there is no serious dispute that plaintiff has purchased 'B' schedule property from the GPA holder of M/s Jagan Associates under registered sale deed dated 10/5/2006. It is also admitted fact that M/s Jagan Associates have constructed apartment in 'A' schedule property. The 'B' schedule property is one of the flat in 'A' schedule property. Defendants contended that M/s Jagan Associates have constructed apartment in 'A' schedule property by encroaching 9 guntas of Government land in sy.no.1 and hence entire apartment has been constructed illegally and hence possession of the plaintiff over 'B' schedule property is not legal and plaintiff is in illegal possession and enjoyment of the same. 18 CT0028_O.S._4918_2010_Judgment_ .
15. In this case, plaintiff examined himself as PW.1. He produced 5 documents which are marked as Ex.P1 to Ex.P5. Ex.P1 is the certified copy of the sale deed dated 10/5/2006; Ex.P2 and Ex.P3 are khata extract and katha certificate; Ex.P4 is tax paid receipt and Ex.P5 is electricity demand bill.
16. Defendants examined three witnesses as DWs. 1 to 3 and got marked 2 documents which are marked as Ex.D1 and Ex.D2. Ex.D1 is the certified copy of the Akarband of sy.no.1 of Jarakabande Kaval village; Ex.D2 is the survey sketch of Jarakabande Kaval village.
17. Court Commissioner is examined as CW.1. She produced Commissioner Report and Sketch which are marked as Ex.C1 and Ex.C2. Court Commissioner in her evidence she deposed that she visited the spot and prepared report and sketch and submitted the same to the Court. In the cross-examination by the defendants, she stated that at the time of Commission 19 CT0028_O.S._4918_2010_Judgment_ .
work, defendants and their counsel were absent. She further stated that she has measured the property on the basis of Ex.P15 and she has given report on the basis of Ex.P15 considering the measurement mentioned in Ex.P15. She further stated that she has not seen Ex.D1 and she has not tried to secure Ex.D1 prior to measurement of 'A' schedule property. She further stated that at the time of measurement of 'A' schedule property, her husband was present and he helped to measure the property. It is pertinent to note that, CW.1 has not at all given valid notice to defendants prior to execution of commission work. Further evidence of CW.1 clearly shows that in the absence of defendants she got measured the properties that too on the basis of Ex.P15 produced by the plaintiff. The evidence of CW.1 also clearly shows that she has not at all measured entire property of sy.no.1 and she failed to discharge her duties as a City Surveyor. Ex.C1 is the report; Ex.C2 is the sketch prepared by the Court Commissioner. In the report, 20 CT0028_O.S._4918_2010_Judgment_ .
Court Commissioner has mentioned that plaintiff has encroached the property to the extent of 1409-45 square feet. Ex.C1 and Ex.C2 does not clearly shows that CW.1 has measured the sy.no.1 or sy.no.145 of Jarakabande Kaval village. The suit schedule property i.e., sy.no.1 of Jarakabande Kaval village, Yelahanka Hobli was totally measuring 519 acres and 37 guntas. Though it is phoded, after phoding, survey number was given as new number as 145 which measures 426 acres 36 guntas at present.
18. It is pertinent to note that, Ex.D1 is an Akarband. Whatever alienation that has taken place in respect of sy.no.145, they do not affect sy.no.1 measuring 21 guntas as shown in Ex.D1. The report of the Court Commissioner clearly shows that she has not at all properly measured disputed property and not shown exact encroachment made by M/s Jagan Associates while constructing the apartment. No doubt, the Commissioner Report discloses that there 21 CT0028_O.S._4918_2010_Judgment_ .
is an encroachment by the plaintiff. But, she has failed to disclose the correct area of encroachment made by M/s Jagan Associates. The Court Commissioner without issuing notice to the defendants or their counsel had visited the spot and she had measured the property only in presence of plaintiffs. Further she has prepared sketch as per Ex.P15 produced by the plaintiffs. Hence, evidence of Court Commissioner clearly shows that she has not at all properly conducted commission work and she has not properly measured the disputed property. Moreover, she has not given notice to the defendants prior to execution of commission work. Further she has not taken Memo of Instructions of defendants for measurement of the disputed property. Hence, commission report is not legal and valid one. Even though Court Commissioner is a Government servant she failed to follow the procedure while conducting commission work. Even she failed to see the records pertaining to sy.no.1 or sy.no.145 of Jarakabande 22 CT0028_O.S._4918_2010_Judgment_ .
Kaval village at the time of executing the commission work. CW.1 in her cross-examination stated that her husband has helped her at the time of measurement of the property. It is pertinent to note that CW.1 is a responsible officer and she has appointed as a Court Commissioner by the Court to measure the property and to submit report, but CW.1 without taking the assistance of officials of the City Survey Office, she has taken the assistance of her husband who is private engineer. It shows that Court Commissioner was not serious about the execution of commission warrant. She mechanically measured the property as per instruction given by the plaintiff that too only after looking to the Ex.P15 produced by the plaintiff and given report. The Court Commissioner has not properly measured the property and failed to discharge her duties. Hence Commissioner Report is very vague and also violation of principles of natural justice since she has not given any notice to defendants prior to execution of commission warrant. 23 CT0028_O.S._4918_2010_Judgment_ .
19. CW.1 in her cross-examination by the defendants stated that there was no instruction to her to issue notice to the defendants. It is pertinent to note that, it is a basic knowledge that before going to execute the commission work, the Court Commissioner ought to have issued notice to both the parties and ought to have done commission work in the presence of both the parties. But, CW.1 plead ignorance that she was no instruction to issue notice to the defendants. Hence, Commissioner Report is very vague and same is not in accordance with law and hence Commissioner Report submitted by CW.1 cannot be accepted.
20. In this case defendants contended that M/s Jagan Associates has illegally encroached into sy.no.1 of Government land to an extent of 9 guntas and built their apartment. In this case, defendants produced four documents which are marked as Ex.D1 and Ex.D2. Ex.D1 is the Akarband. It shows that part of 24 CT0028_O.S._4918_2010_Judgment_ .
'A' schedule property to the extent of 9 guntas is situated in sy.no.1 and which sy.no.1 measures 426 acres and 36 guntas after phodi. Further, from the documents it is much clear that so far as in sy.no.1 is concerned, no part of the land has been sold or granted by the Government at any time to any predecessor of the plaintiff.
21. In this case, defendants also produced survey sketch which is marked as Ex.D2. On perusal of the same, it clearly shows that M/s Jagan Associates has encroached 9 guntas of land belongs to Government and constructed apartment. This Ex.D2 is prepared by Surveyors attached to Survey Department.
22. DW.2 and DW.3 are the Surveyors working in the Survey Department. DW.2 in his evidence clearly stated that M/s Jagan Associates illegally encroached into sy.no.1 to the extent of 9 guntas and built their apartment and as such this apartment is 25 CT0028_O.S._4918_2010_Judgment_ .
standing illegally on sy.no.1 to the extent of 9 guntas. He further stated that he has surveyed the sy.no.1 and he found that compound of apartment has been built encroaching the government land to an extent of 9 guntas in sy.no.1 and certain portion of the building is in sy.no.145. He further deposed that as per survey sketch at sl.no. XIV the encroachment of the M/s Jagan Associates is described in Ex.D2. I have perused Ex.D2 produced by defendants and in the said Ex.D2, encroachment made by M/s Jagan Associates is described at sl.no.XIV. Hence, from the evidence of DW.2, it is much clear that M/s Jagan Associates has encroached 9 guntas of land in sy.no.1 which is belonging to Government and built up apartment and plaintiff has purchased one of the flat in the said apartment which was constructed by M/s Jagan Associates by encroaching the Government land. Under such circumstances, it cannot be said that plaintiff is in lawful possession of the 'B' schedule property.
26 CT0028_O.S._4918_2010_Judgment_ .
23. DW.3 also in his evidence clearly stated that M/s Jagan Associates illegally encroached into sy.no.1 to the extent of 9 guntas and built their apartment. He further stated that he has surveyed sy.no.1 and found that compound of the apartment has been built encroaching the government land on an area measuring 9 guntas in sy.no.1 and certain portion of the building is in sy.no.145. The evidence of DW.3 also clearly shows that M/s Jagan Associates has encroached government land to the extent of 9 guntas belongs to government and built apartment. Ex.D2 is a survey sketch prepared by DWs. 2 and 3. DWs. 2 and 3 are the Surveyors working in Survey Department and they measured the properties and shown the encroachment in Ex.D2 by the M/s Jagan Associates and other persons belongs to Government.
24. In the cross-examination, DWs. 2 and 3 denied that M/s Jagan Associates has not at all encroached any government land. Nothing has been 27 CT0028_O.S._4918_2010_Judgment_ .
elicited from the mouth of DWs. 2 and 3 to disbelieve their evidence. In this case, defendants also produced notice issued by Tahasildar to the owner of M/s Jagan Associates under Section 192(a) of Karnataka Land Revenue Act which is marked as Ex.D3. In Ex.D3, Tahasildar, Bangalore North taluk clearly mentioned that M/s Jagan Associates has encroached 9 guntas of land in sy.no.1 and asked him to produce necessary documents to prove his ownership over the encroached area. In this case defendants also produced order passed by Tahasildar, Bangalore North taluk which is marked as Ex.D4. On perusal of Ex.D4, it clearly shows that learned Tahasildar after verifying the records has passed an order dated 11/9/2009 holding that owner of M/s Jagan Associates has encroached 9 guntas of land in sy.no.1 of Jarakabande Kaval village. This Ex.D4 clearly shows that M/s Jagan Associates has encroached 9 guntas of Government land constructed apartment in 'A' schedule property. The evidence on record shows 28 CT0028_O.S._4918_2010_Judgment_ .
that M/s Jagan Associates has filed appeal before Assistant Commissioner against the order passed by the Tahasildar which is pending before Assistant Commissioner. However, on perusal of oral and documentary evidence produced by the defendants, it is much clear that M/s Jagan Associates has encroached 9 guntas of land in sy.no.1 and built the apartment and plaintiff has purchased one of the flat in the said apartment. The said apartment itself is standing illegally on sy.no.1 to the extent of 9 guntas. Hence, plaintiff is not in lawful possession and enjoyment of the 'B' schedule property. Ex.D2 is prepared by DWs.2 and 3 who are surveyors working in the Department of Survey. I do not find any reasons to doubt the genuineness of Ex.D2. Further, on the basis of Ex.D2, the Tahasildar after giving opportunity to the owner of the M/s Jagan Associates has passed order as per Ex.D4. This Ex.D4 clearly shows that M/s Jagan Associates has encroached 9 guntas of land in sy.no.1 belongs to Government. Tahasildar by 29 CT0028_O.S._4918_2010_Judgment_ .
invoking Section 39 of the Karnataka Land Revenue Act has passed order as per Ex.D4. Hence, from the evidence on record it is much clear that M/s Jagan Associates has constructed apartment by encroaching 9 guntas of Government land. The evidence on record shows that plaintiff has purchased 'B' schedule property in 'A' schedule property. However, schedule property has been illegally built by encroaching into 9 guntas of land in sy.no.1. As such, construction made by M/s Jagan Associates is not a legal construction. Further, plaintiff has not adduced any cogent evidence to show that M/s Jagan Associates had title over any piece of sy.no.1. Further, plaintiff also failed to prove that predecessor of the plaintiff by name Annaiah, W.H.Gopal, M.R.Prakash, B.N.Swamy have been in possession of 9 guntas of land in sy.no.1 since 1966 continuously, openly and actually to the exclusion of the true owner i.e., State of Karnataka. Hence, plaintiff has utterly failed to prove the possession over schedule property. The evidence on record clearly 30 CT0028_O.S._4918_2010_Judgment_ .
shows that 9 guntas of land in sy.no.1 absolutely belongs to government and plaintiff and M/s Jagan Associates do not have any right, title or interest in respect of portion of land in sy.no.1. The plaintiff is in wrongful possession of his flat i.e., 'B' schedule property in 'A' schedule property.
25. PW.1 in his evidence deposed that he has purchased 'B' schedule property and he is in possession and enjoyment of the said property. But, evidence on record clearly shows that 'A' schedule property was constructed by encroaching government land to the extent of 9 guntas and plaintiff has purchased 'B' schedule property which is situated in 'A' schedule property and hence it cannot be said that plaintiff is in lawful possession and enjoyment of the 'B' schedule property.
26. In this case plaintiff has not adduced any cogent evidence on record to show that M/s Jagan Associates has not encroached 9 guntas of land in 31 CT0028_O.S._4918_2010_Judgment_ .
sy.no.1 of Jarakabande Kaval village. The documents produced by the plaintiff does not shows that M/s Jagan Associates has not encroached 9 guntas of land in sy.no.1. The evidence of PW.1 is also not corroborated by cogent material to show that apartment was not constructed in encroached area as contended by defendants.
27. In this case, Court Commissioner has appointed during the pendency of the suit for local inspection and to demarcate the property and to submit the report. But, Court Commissioner has not properly done her commission work. Even though Commissioner has not properly done her commission work, the report of the commission also shows that there is an encroachment to the extent of some portion by the M/s Jagan Associates. Hence, from the evidence on record it is much clear that M/s Jagan Associates has constructed apartment by encroaching Government land. Under such circumstances, it 32 CT0028_O.S._4918_2010_Judgment_ .
cannot be said that plaintiff who is the owner of 'B' schedule property in 'A' schedule property is in lawful possession and enjoyment of the 'B' schedule property.
28. In this case, plaintiff has produced sanction plan with regard to "MARUTHI MANSION" and "MAHALAKSHMI MANSION" which are marked as Ex.P20 and Ex.P21 and said documents are marked subject to objection. Ex.P20 relates to "MARUTHI MANSION" and Ex.P21 pertaining to "MAHALAKSHMI MANSION". Plaintiff has not examined author of Ex.P20 and Ex.P21 to prove the contents of the same. Hence, on the basis of alleged documents i.e., Ex.P20 and Ex.P21 it cannot be said that M/s Jagan Associates has not encroached Government land. Hence Ex.P20 and Ex.P21 are not helpful to the plaintiff to show that he is in lawful possession of 'B' schedule property.
33 CT0028_O.S._4918_2010_Judgment_ .
29. It is the case of the plaintiff that 'A' schedule property is constructed on property bearing old no.10/1 and 10/2 situated at 1st cross road, Saraswathipuram, Nandini Layout, Bangalore. In this case defendants contended that M/s Jagan Associates who have constructed apartment namely "Maruthi Mansion" by encroaching 9 guntas of government land in sy.no.1. Hence, it is for the plaintiff to prove that M/s Jagan Associates has not encroached any government property and they constructed property in old property no. 10/1 and 10/2. But in this case plaintiff has not adduced any cogent evidence on record to show that M/s Jagan Associates has not encroached government land as contended by defendants.
30. In this case plaintiff also not examined the predecessor of 'A' schedule property to show that M/s Jagan Associates has constructed apartment on the property bearing old no.10/1 and 10/2 situated at 1st 34 CT0028_O.S._4918_2010_Judgment_ .
cross road, Saraswathipuram, Nandini Layout, Bangalore. On the other hand, defendants have adduced cogent evidence to show that M/s Jagan Associates has encroached 9 guntas of land belongs to Government and constructed apartment. No doubt plaintiff has purchased 'B' schedule property which is situated in 'A' schedule property from the GPA holder of M/s Jagan Associates. But, 'A' schedule property is constructed by encroaching the government property. Under such circumstances, it cannot be said that plaintiff is in lawful possession of 'B' schedule property.
31. PW.1 in his cross-examination denied that 'A' schedule property has been constructed on the 9 guntas of government land in sy.no.1. It is pertinent to note that, PW.1 was not at all present at the time of construction of apartment by the M/s Jagan Associates. Plaintiff has just purchased one flat in 'A' schedule property without verifying the encroachment 35 CT0028_O.S._4918_2010_Judgment_ .
made by M/s Jagan Associates in 'A' schedule property.
32. In this case, even though plaintiff denied that 'A' schedule property has been constructed on the encroached portion but he has not placed any cogent material to show that 'A' schedule property has constructed without any encroachment of government land. Hence, from the evidence of PW.1 it cannot be said that 'A' schedule property has been constructed without encroaching the government land as contended by defendants.
33. PW.1 in his cross-examination stated that he has no idea before fixation of boundaries, compound wall was constructed by the previous owner Prakash or not and they have not brought to the notice of the government with regard to the boundary dispute in respect of 'A' schedule property. Hence, evidence of PW.1 clearly shows that he has no knowledge with regard to boundary dispute pertaining 36 CT0028_O.S._4918_2010_Judgment_ .
to 'A' schedule property. In this case, there is a serious dispute with regard to boundary and encroachment of government property. Plaintiff has approached this court seeking equitable relief of permanent injunction against defendants. Hence, it is for the plaintiff to prove that he is in lawful possession of 'B' schedule property and also prove that 'A' schedule property has not at all constructed by encroaching government land. But, in this case, plaintiff has not adduced any cogent evidence to show that 'A' schedule property has not at all constructed by encroaching government land. The evidence adduced by the defendants clearly shows that M/s Jagan Associates have constructed 'A' schedule property i.e., apartment by encroaching 9 guntas of government land in sy.no.1. Ex.D2 survey sketch clearly reflects the encroachment made by M/s Jagan Associates while constructing the apartment. Hence, from the evidence on record it is much clear that plaintiff is not at all in lawful possession of the 'B' 37 CT0028_O.S._4918_2010_Judgment_ .
schedule property since 'A' schedule property itself constructed by encroaching 9 guntas of government land in sy.no.1. Plaintiff failed to prove issue no.1. Accordingly, I answer issue no.1 in the negative.
34. ISSUE NO.2: Plaintiff contended that defendants are interfering with his peaceful possession and enjoyment over 'B' schedule property and trying to dispossess him from the 'B' schedule property. While answering issue no.1, it is held that plaintiff is not in lawful possession of 'B' schedule property. The evidence on record clearly shows that M/s Jagan Associates have constructed apartment i.e., 'A' schedule property by encroaching 9 guntas of government land in sy.no.1. Further, evidence on record clearly shows that Tahasildar has passed orders as per Ex.D4 by holding that M/s Jagan Associates has encroached 9 guntas of land in sy.no.1. From the evidence on record it is much clear that M/s Jagan Associates by encroaching the 38 CT0028_O.S._4918_2010_Judgment_ .
government land to the extent of 9 guntas has constructed apartment. Defendant no.1 is the public servant and defendant no.2 is the Government of Karnataka represented by its Principal Secretary. Under the provisions of Karnataka Land Revenue Act, defendants have got every right to pass orders to remove the encroachment made by any person. In this case evidence on record clearly shows that 'A' schedule property has constructed by encroaching 9 guntas of land in sy.no.1. Accordingly, defendant no.1 has passed order as per Ex.D4. Since defendants found that after enquiry that 'A' schedule property has been constructed by encroaching 9 guntas of land in sy.no.1, defendant no.1 by exercising his powers conferred under the Land Revenue Act has passed orders as per Ex.D4. Further, defendant no.1 before proceed to pass orders, he had issued notice to the M/s Jagan Associates as per Ex.D4. Hence, act of the defendants does not amounts to any interference with the possession and enjoyment of the plaintiff over the 39 CT0028_O.S._4918_2010_Judgment_ .
'B' schedule property since M/s Jagan Associates has encroached 9 guntas of government land. Plaintiff failed to prove alleged interference. Accordingly, I answer issue no.2 in the negative.
35. ISSUE NO.3: In this case plaintiff sought for the relief of permanent injunction restraining the defendants or their officials from interfering with his peaceful possession and enjoyment of the 'B' schedule property or from dispossessing the plaintiff from the suit 'B' schedule property. While answering issue no.1, it is held that plaintiff is not in lawful possession and enjoyment of the suit schedule property. While answering issue no.2, it is held that plaintiff has failed to prove alleged interference by the defendants. The evidence on record clearly shows that M/s Jagan Associates by encroaching the 9 guntas of government land in sy.no.1 have constructed apartment in 'A' schedule property. Hence said apartment was constructed in an encroached portion. Hence, plaintiff 40 CT0028_O.S._4918_2010_Judgment_ .
is not in lawful possession of 'B' schedule property since 'A' schedule property itself has constructed in an encroached portion belongs to government. Hence, plaintiff is not entitled for the relief of permanent injunction as sought for. It is also important to note that the suit of the plaintiff for bare injunction is not maintainable without the relief of declaration. When defendants seriously contending that M/s Jagan Associates has constructed apartment in 'A' schedule property by encroaching 9 guntas of government land in sy.no.1, under such circumstances plaintiff ought to have filed suit for declaration and injunction to prove their title over the 'A' schedule property. Moreover, evidence on record clearly shows that 'A' schedule property has been constructed by encroaching 9 guntas of government land in sy.no.1. Plaintiff is not in lawful possession of suit schedule property. Hence, plaintiff is not entitled for the relief of permanent injunction as sought for against the defendants. The order passed by defendant no.1 is in 41 CT0028_O.S._4918_2010_Judgment_ .
accordance with law under the provisions of Karnataka Land Revenue Act and he passed said order after holding due enquiry. The plaintiff who is in wrongful possession of 'B' schedule property in 'A' schedule property has no right to seek equitable relief of permanent injunction against true owners.
36. It is pertinent to note that, defendant no.1 has passed order as per Ex.D4 by holding that M/s Jagan Associates has encroached 9 guntas of government land in sy.no.1 of Jarakabande Kaval village. Being aggrieved by the order passed by the Tahasildar, M/s Jagan Associates has filed appeal before Assistant Commissioner and said appeal is still pending. The order passed by the Tahasildar as per Ex.D4 is not yet cancelled. Ex.D4 clearly shows that M/s Jagan Associates has encroached 9 guntas of land in sy.no.1 of Jarakabande Kaval village.
37. It is also important to note that, under the provisions of Karnataka Land Revenue Act, there is a 42 CT0028_O.S._4918_2010_Judgment_ .
bar to file civil suit against the order passed by the Tahasildar. It is held in a decision reported in ILR 1996 KAR 715 wherein Hon'ble High Court of Karnataka held as under:
"KARNATAKA LAND REVENUE AC, 1964 (Karnataka Act No.12 of 1964) - Sections 49 & 63 - Order by Tahsildar appeal under Section 49(a)
- Jurisdiction of Civil Courts :
express bar under Section 63 unless all remedies under Act exhausted within limitation - Section 9 CPC not applicable."
38. From the above said decision, it is much clear that the jurisdiction of the Civil Courts to entertain any suits or other proceedings against the State Government on account of any act or omission of the State Government or any Revenue Officer is barred under Section 63 of the Act.
39. In this case, defendant no.1 by invoking Section 39 of the Land Revenue Act has passed order as per Ex.D4. After passing the said order, plaintiff has filed this suit, but there is a bar under Section 63 43 CT0028_O.S._4918_2010_Judgment_ .
of the Karnataka Land Revenue Act to file Civil Suit before the Civil Court. Section 63 of the Land Revenue Act is an express bar to file the suit unless the plaintiff has exhausted remedies provided under Act by filing appeal. When there is an express bar in the Act, section 9 of CPC will not come into aid of the plaintiff. No doubt in this case, plaintiff has filed appeal before Assistant Commissioner against the order passed by Tahasildar but said appeal is still pending before Assistant Commissioner. The plaintiff without exhausted all remedies has provided under the Karnataka Land Revenue Act has filed this suit. As already stated there is an express bar under Section 63 of the Karnataka Land Revenue Act to file the suit before the Civil Court. Hence, suit of the plaintiff itself is not maintainable. When suit itself is not maintainable the plaintiff is not entitled for the relief of permanent injunction as sought for. Even otherwise, plaintiff has failed to prove his lawful possession over the suit schedule property. The 44 CT0028_O.S._4918_2010_Judgment_ .
evidence on record clearly shows that M/s Jagan Associates have constructed apartment in the 'A' schedule property by encroaching 9 guntas of land in sy.no.1 of Jarakabande Kaval village. Hence it is a clear case of encroachment. When predecessor of the plaintiff has encroached government land, the plaintiff is not entitled for the equitable relief of permanent injunction as sought for. Therefore, plaintiff is not entitled for the relief of permanent injunction against the defendants. Further plaintiff is not entitled for any relief. Plaintiff failed to prove issue no.3. Accordingly, I answer issue no.3 in the negative.
40. ISSUE NO.4: From my above discussions and reasoning on issues No.1 to 3, the suit of the plaintiff is liable to be dismissed. In the result, I pass the following:
The suit of the plaintiff is hereby dismissed.
No order as to costs.
45 CT0028_O.S._4918_2010_Judgment_ .
Draw decree accordingly.
*** [Dictated to the Judgment Writer, transcribed and computerised by her, Script corrected, signed and then pronounced by me, in the Open Court on this the 2nd day of December 2017.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 B.Jagannathan
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 B.Venkatesh
DW.2 Shivanna
DW.3 Srikanta
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Certified copy of the sale deed dated 10/5/2006 Ex.P2 And Khata extract and katha certificate Ex.P3 Ex.P4 Two tax paid receipts Ex.P5 Electricity demand bill 46 CT0028_O.S._4918_2010_Judgment_ .
4. List of the documents marked for the defendants:
Ex.D 1 Survey Sketch of Jarakabandakaval village Ex.D 2 Certified copy of the Akarband of Sy.No.1 of Jarakabandakaval village [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge, BANGALORE.
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) [S.H.HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.2 O.S. 1487/2006