Bangalore District Court
Smt.Shabeena Taj vs Sri.A.L.Nagaraja Gupta on 28 July, 2018
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY (C.C.H.No.8)
Dated this the 28th day of July 2018
PRESENT: Sri.K.B.PATIL, B.Com.,LL.B.,(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.2995 of 2013
Plaintiff/s: Smt.Shabeena Taj,
W/O Sri. Farook Pasha,
aged about 34 years,
Residing at No.6-6/1, 3rd
Main Road, Sheshadripuram, Bengaluru-20
(Sri. Mohammed Nasiruddin, advocate for
Plaintiff)
Vs.
Defendant/s: 1. Sri.A.L.Nagaraja Gupta,
S/O Late Lakshminarayana Shetty,
Aged about 54 years,
Residing in Out House NO.6/2,
3rd Main Road, Seshadripuram,
Bengaluru-20
2. Smt.A.S.Bhanumathi,
W/O A.L.Nagaraja Gupta,
Aged about 40 years,
Residing in Out House No.6/2,
3rd Main Road, Seshadripuram,
Bengaluru -20
3. The Commissioner,
Bruhat Bengaluru Mahanagara Palike,
N.R.Square,
2 OS.No.2995 of 2013
Bengaluru -2
4. The Assistant Revenue Officer,
Bruhat Bengaluru Mahanagara Palike.
West Zone, Malleshwaram,
Bengaluru-3
(Sri.P.N.D, advocate for D.1 and D.2
Sri. M.R.V, advocate for D.3 and D.4 )
Date of the institution of suit: 17.4.2013
Nature of the suit: Permanent injunction
Date of the commencement of 18.11.2014
recording of evidence:
Date on which the judgment was 28.7.2018
pronounced:
Total duration Year/s Month/s Day/s
05 03 11
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
The present suit is filed by the plaintiff against the defendants for the relief of permanent injunction restraining the defendants 1 and 2 or anybody on their behalf and from interfering with the plaintiff's peaceful 3 OS.No.2995 of 2013 possession and enjoyment of the schedule property measuring east to west 3 ft., and north to south 27 ft., situated on the western side of the schedule property, which exclusively belongs to the plaintiff and for mandatory injunction directing the defendants 3 and 4 to demolish the structures put up by the defendants No.1 and 2 illegally unauthorizedly without there being any right, title or interest upon the conservancy to the west of their property belonging to defendant NO.3 and 4 and other reliefs.
2. The case of the plaintiff is that one Smt.P.Aswathamma W/O B.Subbaiah was the absolute owner of the residential premises bearing new Municipal Nos.6, 6/1 and 6/2 situated at 3rd Main road, Seshadripuram, Bengaluru measuring east to west 45 ft., and north to south 27 ft., having purchased the same by her from the wife and children of Gopalaswamy Naidu under a registered sale deed dated 25.5.1961 registered on 29.6.1961. Thereafter the said Aswathamma in turn sold the main building bearing katha No.6 & 6/1, PID No. 27- 97-6 and 27-96-6/1 respectively situated within the limits of BBMP ward No.27, 3rd Main Road, Seshadirpuram, Bengaluru measuring east to west 33 ft., north to south 27 ft., inclusive of the passage measuring 3 ft., width and 33 ft., length on the northern side comprising of ground floor measuring 720 sq.ft., and first floor measuring 720 4 OS.No.2995 of 2013 sq.ft., under the sale deed dated 2.1.1985 to Sri.Manaharlal Mehta S/O Late Sri.Manilal Mehta and 2 others, which sale deed has been duly registered in the office of Sub Registrar, Malleswaram, Bengaluru on 2.1.1985. The said Aswathamma w/o late B.Subbaiah also sold the old dwelling house built in area of 3(1/4th) square of asbestos roofed the hind portion of the schedule property measuring east to west 12 ft., north to south 27 ft., bearing Municipal No.6/2, 3rd Main Road, Seshadirpuram, Bengaluru-20 under registered sale deed dated 12.12.1984. to Smt. Ammikutty George W/O O.George. Under the said sale deed at page No.4, it is specifically mentioned " the vendor agreed that the purchaser can have the right to make use of the existing common passage measuring 3 ft., width and 33 ft., length from the main road the schedule property without any interference and make use of the existing vacant space behind and in between the main building and the schedule property. The vacant space left out will be one ft., between the main building and the out house." From this it is evident that the hind portion that is the property purchased by Smt.Ammikutty. It is further specifically mentioned that the vacant space left out will be 1 ft., between the main building and the property purchased under the sale deed dated 12.12.1984. The said Ammikutty had executed a General Power of attorney in favour of 1st defendant on 5 OS.No.2995 of 2013 27.9.1995. The schedule in the power of attorney and in the sale deed produced as per Annexure-B does not tally with the sale deed dated 12.12.1984, which is the primary document to execute the power of attorney. The said 1st defendant in turn executed a sale deed in respect of the property, which is the subject matter of the sale deed dated 12.12.1984 in favour of his wife Smt.A.N.Bhanumati, the 2nd defendant as a power of attorney holder for Smt.Ammikutty. Plaintiff after purchase of the property bearing khata No.6 and 6/1, PID Nos. 27-96-6 and 27-96- 6/1 situated at 3rd Main Road, Seshadripuram, Bengaluru measuring east to west 33 ft., and north to south 27 ft., including common passage measuring 3 ft., width and 33 ft., length on the northern side of the schedule property morefully and specifically described in the schedule got the khata transferred into her name and paying taxes etc., When the matter stood thus, the defendant No.1 and 2 are unnecessarily interfering with the peaceful possession and enjoyment of the schedule property belonging to the plaintiff and are trying to park the vehicles to the west of the schedule property, where the plaintiff has left east to west 3 ft., north to south 27 ft., space for her own use. Washing for drying the clothes, washing the utensils, the rough sketch is produced. It clearly indicates this space. Under any circumstances either the 1st defendant or the 2nd defendant has no right, title or interest over the same. All the efforts made by the plaintiff to persuade the 6 OS.No.2995 of 2013 defendant No.1 and 2 and to desist from interfering with the peaceful possession and enjoyment of the schedule property and not to park the vehicles in the space which is exclusive property of the plaintiff thereby causing obstructions to plaintiff and her family members day to day activities in the schedule property and trying to encroach upon the same proved in vain, because of the hostile and intransigent attitude on the part of the defendants No.1and 2 as the valuable right of the plaintiff and her family members in making use of their property as mentioned has been obstructing by defendant No.1 and 2 without there being any right, title or interest over the same. Defendant No.1 and 2 although they have no right, title or interest over the conservancy lane, which is towards west of defendant No.1 and 2 property to an extent of east to west 20 ft., and north to south 27 ft., illegally and unauthorizedly encroached upon the same and have put up constructions thereon belonging to defendant No.3 and
4. Although the plaintiff has brought to the notice of the defendant No.3 and 4 regarding this aspect of the matter, the defendant No.3 and 4 have not taken any action against defendant No.1 and 2 and no necessary steps were taken to demolish the same as the structures put up on the conservancy lane situated to the west of defendant No.1and 2 property is illegal and unauthorized. The structures put up by the defendant No.1 and 2 on the conservancy lane greatly affects the plaintiff and other 7 OS.No.2995 of 2013 residence in and around surrounding area posing a threat to their health as the area cannot be kept in a hygienic manner due to the illegally and unauthorized constructed made by the defendant No.1 and 2 and thereby the plaintiff is constrained to seek a mandatory direction, directing the defendant No.3 and 4 to demolish the structure which was put up by the defendant No.1 and 2 to the west of their property illegally and unauthorizedly without there being any right, title or interest. Hence, the suit. The cause of action arose on 12.4.2013, when inspite of persuading the defendant No.1 and 2 not to park their vehicle in the space measuring east to west 3 ft., and north to south 27 ft., towards west of plaintiff's property over which the defendant No.1 and 2 have no manner of any right, title or interest and when the defendant No.1 and 2 have put up construction on the conservancy lane, which is to the west of their property illegally and unauthorizedly and when the plaintiff brought this fact to the notice of defendant No.3 and 4, when they failed to take any action and subsequently within the jurisdiction of this Court and hence prayed for decree the suit.
3. In response to the summons issued in this case, defendants appeared through counsel and defendant No.1 and 2 filed their written statement contending that the suit of the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine.
8 OS.No.2995 of 2013Plaintiff has filed the false suit against these defendants for the relief of permanent injunction restraining from peaceful possession and enjoyment of the schedule property and desist from interfering the space measuring east to west 3ft., and north to south 27 ft., situated on the western side of the schedule property, which exclusively belongs to the plaintiff and also for the relief of mandatory injunction directing the defendant No.3 and 4 to demolish the structures put up by these defendants illegally unauthorizedly without there being any right, title or interest upon the conservancy to the west of defendants property belonging to defendant No.3 and 4. As such a suit for mere injunction without seeking relief of declaration of the plaintiff's right over the suit schedule property is not at all maintainable. Therefore, the suit of the plaintiff is liable to be dismissed. There is no cause of action for the suit is shown as false. The suit is barred by time hence liable to be dismissed on this ground. It is admitted that one Smt. Aswathamma was the absolute owner of the residential premises bearing New Municipal No.6, 6/1 and 6/2 situated at 3rd Main Road, Sheshadripuram, Bengaluru- 20 measuring east to west 45 ft., and north to south 27 ft., having purchased the same by her from the wife and children of Gopalaswamy Naidu under the registered sale deed dated 25.5.1961. Later Smt.Aswathamma in turn sold the main building bearing katha No. 6/1, PID No.27-96-6 and 27-96-6/1 respectively situated within the limits of BBMP Ward No.27, 3rd main road, Seshadripuram, 9 OS.No.2995 of 2013 Bengaluru measuring east to west 33 ft., and north to south 27 ft., inclusive of the passage measuring 3 ft., width and 33 ft., length on the northern side comprising of ground floor, measuring 720 sq.ft., first floor measuring 720 sq. ft., under the sale deed dated 2.1.1985 to Manoharlal Mehta and two others a have denied specifically. It is admitted that Smt.Aswathamma sold the old dwelling house built in area of 3(1/4) square of asbestos roofed the hind portion of south 27 ft., bearing Municipal No.6/2, 3rd Main Road, Seshadirpuram, Bengaluru under registered sale deed dated 12.12.1984 to Smt. Ammikutty is true and correct. Further denied all other plaint allegations and further contended that in respect of vacant site situated towards west of the schedule property measuring east to west 3 ft., and north to south 27 ft., is concerned, the same being common passage and making use of the same by both the houses since from 30 years. As such the said portion being a common passage left to make use by both the houses, no person has got an independent right, title and interest over the said property. It is the plaintiff, who has encroached the area of common passage in first floor by constructing house over the suit schedule property and the same is done by the plaintiff in total violation of BBMP Rules and Regulations. Further the plaintiff has constructed toilet and also put window measuring 3'X4' exactly to the opposite of main door of the defendant No.2 property and started causing nuisance by keeping open of the said window. Further 10 OS.No.2995 of 2013 when the said act of encroachment and nuisance caused by the plaintiff was questioned by these defendants, the plaintiff started making false complaints and allegations upon these defendants to the BBMP and also filed the present false suit before this Court and the same is liable to be dismissed and prays to dismiss the suit.
4. The defendant No.3 and 4 filed their written statement denying the plaint allegations and contending that the contention taken by the plaintiff against defendant No.1 and 2 is not within their knowledge and further contended that if any illegal construction are undertaken by the defendant No.1 and 2, these defendants will take appropriate action as provided under the KMC Act and hence, prayed for dismiss the suit.
5 On the above facts, the following issues having been framed:-
1. Whether the plaintiff proves that she is in possession and enjoyment of the schedule property?
2. Whether the plaintiff proves the alleged interference of the 1st and 2nd defendants?
3. Whether the plaintiff further proves that the 1st and 2nd defendants have illegally put up construction over the conservancy lane, 3rd and 4th defendants have failed to take action to demolish the same as alleged?11 OS.No.2995 of 2013
4. Whether the plaintiff is entitled for the relief sought for?
5. What order or decree?
6 In order to prove the case of plaintiff's case, the husband of the plaintiff is examined as P.W.1 and got marked Ex.P.1 to P.9. On behalf of defendants, defendant No.1 himself is examined as D.W.1 and got marked Ex.D.1 to Ex.D.7.
7. Heard arguments.
8 My answers to the above issues are as follows:-
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: As per final order for the following
reasons:
REASONS
9 Issue No.1 to 3: All these issues are inter
connected with each other. Hence, I answer all these issues in common to avoid repetition of facts.12 OS.No.2995 of 2013
10. The plaintiff has filed the present suit against the defendants only for the relief of permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession over the suit schedule property and mandatory injunction against defendant No.3 and 4 to demolish the illegal construction made by defendant No.1 and 2 over conservancy lane belongs to defendant No.3 and 4. The schedule property described in the plaint schedule is that all piece and parcel of property bearing katha No.6 and 6/1, PID NO.27-96-6, 27-96-6/1 respectively situated within the limits of BBMP ward No.27, 3rd Main Road, Seshadripuram, Bengaluru measuring east to west 33 ft., north to south 27 ft., including the passage measuring east to west 3 ft., and north to south 33 ft., on the northern side of the schedule property comprising of ground floor and first floor bounded on east by 3rd Main road, west by 3ft., belongs to plaintiff and space of 1 ft., in between plaintiff and defendant No.1 and 2's property, north by common passage and property of Abdul Lathif, and south by property of Venkatamma. Under these circumstances, plaintiff has to prove that as on the date of filing the present suit, she is in actual possession and enjoyment of the suit schedule property as described in the plaint schedule. The defendants contended that the common passage claimed by the plaintiff is for common use of both the properties and the same was used since from last 30 years. Further denied that they have made any illegal 13 OS.No.2995 of 2013 construction over the property belongs to defendant No.3 and 4 i.e., conservancy lane. Further contended that the suit is not maintainable, suit is barred by time and hence, prayed for dismiss the suit.
11. The defendant No.3 and 4 denied plaint allegations specifically state ignorance in respect of the allegations made by plaintiff against defendant No.1 and 2 further contended that if any illegal construction is made by defendant No.1 and 2, these defendants will take appropriate action under KMC Act and so far as these defendants have not noticed any such illegal construction by defendant No.1 and 2 over the property of defendant No.3 and 4.
12. Plaintiff in order to prove her case, got examined her husband and GPA holder as P.W.1 and got marked Ex.P.1 to P.9.
13. The defendants in support of their case got examined defendant No.1 as D.W.1 and got marked Ex.D.1 to Ex.D.7. Defendant No.3 and 4 have not led any evidence on their behalf. This is all over and documentary evidence produced by the plaintiff and defendants in respect of their cases.14 OS.No.2995 of 2013
14. As already stated above in order to succeed in the present case, plaintiff has to prove that plaintiff is in exclusive e possession and enjoyment of the suit schedule property as described in the plaint schedule as on the date of filing the present suit. Plaintiff is claiming that there is a passage towards western side of the suit schedule property measuring east to west 3 ft., and north to south 27 ft., In support of this contention, plaintiff has not produced any documentary evidence. Ex.P.7 is a sale deed of plaintiff. In the said sale deed, the property purchased by the plaintiff is described as all that piece and parcel of property bearing khatha No.6 and 6/1, PID Mp/27-96-6 and 27-96-6/1 respectively situated within the limits of BBMP, Ward No.27, 3rd Main Road, Sheshadripuram, Bengaluru measuring east to west 33 ft., and north to south 27 ft., inclusive of the passage measuring 3 feet width and 33 feet length on the northern side comprising of ground floor measuring 720 sq.ft., and first floor measuring 720 s. ft., a red oxide flooring jungle wood doors, RCC roofing with only basic amenities and the structure being constructed in the year 1965 and bounded on east by 3rd Main Road, west by property of Snmt. Ammikutty George, north by property of Abdul Lathif and south by property of Venkatamma. From this, it is clear that on the western side that there is no existence of passage belonging to plaintiff measuring east to west 3 ft., and north to south 27 ft., The only passage existing is common passage situated on northern side. It is 15 OS.No.2995 of 2013 undisputed fact that the original owner of plaintiff's property and defendant's property are one and the same.
Plaintiff has purchased the part of the property and defendant No. 1 and 2 have purchased the hind portion of the property. Ex.P.9 is the hand sketch produced by the plaintiff. In the said hand sketch, plaintiff had shown the open space towards western side of his property, but except Ex.P.9, which is the hand sketch prepared by advocate for plaintiff, no other documents are produced by the plaintiff in order to show that there exist 3 ft., passage in between the house of the plaintiff and the defendants. From the sale deed as per Ex.P.7, it is clear that plaintiff has purchased the property measuring 720 sq.ft., If we calculate the measurement may be 27'X33' it comes to 891 sq. ft.,. The existence of the passage on the western side is not at all mentioned in sale deed of plaintiff marked this in this case as per Ex.P.7. The 3 ft., passage shown in Ex.P.7 is situated on the northern side of the plaintiff's property. The western boundary described in the plaint schedule is at present 3 ft., belongs to plaintiff and space of one feet in between plaintiff and defendants property. But in the sale deed as per Ex.P.7, the western boundary is shown as property of Smt. Ammikutty George i.e., the vendor of defendants. It is admitted fact that in between plaintiff and defendants property, there exist common passage of one feet on the western side of the suit schedule property. Both the parties agreed that the said one feet passage is used to lay down the 16 OS.No.2995 of 2013 drainage pipes of both the parties in the said passage. Considering over all evidence produced by the plaintiff and the defendants in this case, it is clear that the plaintiff has failed to prove the existence of passage measuring east to west 3 ft., and north to south 27 ft., on the western side of the suit schedule property. Under these circumstances, plaintiff is not entitled for the relief of permanent injunction against the defendants in respect of the suit schedule property as described in the plaint schedule, which is contrary to the description of the property purchased by the plaintiff under sale deed as per Ex.P.7. Hence, plaintiff is not entitled for the relief of permanent injunction as sought for in the present suit.
15. Plaintiff is seeking mandatory injunction against defendant No.1 and 2 alleging that the defendants have made construction encroaching upon the property of defendant No.3 and 4 i.e., conservancy lane belonging to defendant No.3 and 4, but in that regard no evidence is produced by the plaintiff in the present case. The defendant No.3 and 4 appeared in the present case and filed their written statement contending that so far these defendants have not noticed any such illegal construction of defendant No.1 and 2 over the conservancy lane. Further they have stated that if any such illegal construction undertaken by defendant No.1 and 2, these defendant No.3 and 4 will taken appropriate action against them as provided under 17 OS.No.2995 of 2013 KMC Act. Plaintiff is not claiming any right over the said conservancy lane situated on the western side of the defendants' property. Plaintiff has also not produced any evidence to show that the defendants have made construction by encroaching upon the conservancy lane situated on the western side of their property. In the absence of any evidence and also in view of the contention taken by the defendant No.3 and 4 in their written statement, it is clear that the plaintiff has failed to prove that the defendant No.1 and 2 have made any illegal construction encroaching upon conservancy lane belonging to defendant No.3 and 4. Hence, plaintiff is also not entitled for mandatory injunction as sought for in the present case.
16. As far as the common passage situated on the northern side of the plaintiff's property is concerned, it is admittedly a common passage. Neither the plaintiff nor the defendants have got any right to obstruct to use of the said passage as a common passage by either of the parties. Under these circumstances, plaintiff failed to prove that he is in actual possession and enjoyment of the suit schedule property as described in the plaint schedule as on the date of filing the present suit. Hence, there is no question of interference by the 1st and 2nd defendant as alleged by the plaintiff in the present case. The plaintiff has also failed to prove that the defendants have put up illegal construction over the conservancy lane situated on the western side of 18 OS.No.2995 of 2013 their property, which was belongs to 3rd and 4th defendants. Hence, the plaintiff is not entitled for the relief of mandatory injunction and permanent injunction as sought for in the present suit. Under these circumstances, I answer Issue No.1 to 3 in negative.
17. Issue No.4: In view of the discussions made above, this Court is of the opinion that the plaintiff is not entitled for the relief as sought for in the present suit. However, it is hereby made clear that neither the plaintiff nor the defendants have got any right to obstruct the common passage situated on the northern side of the plaintiff's property and the same is to be used as common passage by both the parties. With these observations, I answer Issue No.4 in negative.
18. Issue No.5: In view of my findings on the above issues and discussions made above, I proceed to pass the following:-
ORDER Suit of the plaintiff is hereby dismissed. No order as to costs.
It is hereby made clear that neither the plaintiff nor the defendants have got any right to obstruct the common passage situated on the northern side of the suit schedule 19 OS.No.2995 of 2013 property, except using the same as common passage to each of their respective properties.
Draw decree accordingly.
{Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open court this 28th day of July 2018.} (K.B.PATIL) XI Addl. City Civil Judge Bangalore city.
ANNEXUERE List of witnesses examined for plaintiff:-
P.W.1 Sri.Farook Pasha List of documents exhibited for plaintiff:-
Ex.P.1 G.P.A
Ex.P.2: Certified copy of sale deed dated
12/12/1084
Ex.P.3: Katha certificate
Ex.P.4: Katha extract
Ex.P.5: Tax paid receipt
Ex.P.6: Certified copy of sale deed dated 2.1.1985
Ex.P.7: Certified copy of sale deed dated 24.1.2011
Ex.P.8: Xerox copy of approved plan
Ex.P.9: Xerox copy of sketch
List of witnesses examined for defendant/s:
D.W.1: Sri.A.L.Nagaraj Gupta 20 OS.No.2995 of 2013 List of documents exhibited for defendant/s:
Ex.D.1 & 2: Photos Ex.D. 3: C.D Ex.D.4: Certified copy of GPA Ex.D.5: Certified copy of sale deed Ex.D.6: Katha extract Ex.D.7: Katha certificate XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY