Bangalore District Court
Mr. Rajashekhar.K vs Bruhath Bengaluru Mahanagara on 20 February, 2020
Form
No.9
(Civil)
Title
Sheet
for
Judgme
PRESENT: SMT. PRASHANTHI.G.
B.A (Law) LL.B.,
XXVII Additional City Civil Judge.
Dated this the 20 th day of February 2020
PLAINTIFFS: 1. MR. RAJASHEKHAR.K
S/o Shri K.V.Ramana,
Aged about 32 years,
R/at flat No.302,
Heritage-9 Apartments,
Chinnappanahalli village,
K.R.Puram Hobli,
Bangalore East Taluk,
Bangalore-560 037.
[By Sri Prakash Hebbar.T. Advocate]
/v e r s u s/
DEFENDANTS: 1. Bruhath Bengaluru Mahanagara
Palike, Hudson Circle,
Nrupatunga Road,
Bangalore-560 009,
Represented by its
Commissioner.
2. The Assistant Executive
Engineer, Bangalore Bruhath
Mahanagara Palike,
Mahadevapura Sub Divsiion,
Mahadevapura Range,
Bangalore.
2 CT0028_O.S._3745_2014_Judgment_.doc
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3. The Deputy Commissioner, Bangalore Urban District, Kempe Gowda Road, Bangalore-560 009.
4. The Tahsildar, Bangalore East Taluk, Krishnarajapuram, Bangalore.
5. The State of Karnataka, Revenue Department, M.S.building, 5th Floor, Dr. Ambedkar Road, Bangalore-560 001.
Represented by its Secretary.
D1 and D2 - By Sri P.V. Advocate D3 to D5 - Exparte Date of institution of the : 23/05/2014 suit Nature of the suit : For injunction Date of commencement of : 10/12/2015 recording of the evidence Date on which the : 20/2/2020 Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
5 8 26
(Prashanthi. G)
XXVII ACCJ: B'LORE.
3 CT0028_O.S._3745_2014_Judgment_.doc
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Plaintiff has filed this suit against the defendants for the relief of permanent injunction, restraining the defendants, their servants, agents, officials or any person or persons claiming through or under them either individually or collectively in any capacity whatsoever from demolishing the B schedule property or any portion thereof which forms part of A schedule property, in any manner whatsoever and / or dispossessing the plaintiff from B schedule property or any portion thereof, in any manner whatsoever, and for the cost of the suit.
2. In brief, the plaintiff's case is as under:
Plaintiff submits that, he is the purchaser of a residential apartment bearing Flat No. 302, in the apartment building known as "HERITAGE -9 APARTMENTS", situate at Chinnappanahalli village, K.R.Puram Hobli, Bangalore East taluk under the registered Deed of Absolute Sale, executed on 21/2/2011 registered as Document No.5901/2010-11 4 CT0028_O.S._3745_2014_Judgment_.doc .
for valuable consideration. Since the date of purchase, the plaintiff has been in lawful possession and enjoyment of the said flat. The original sale deed is deposited with the GIC Housing finance Limited by deposit of the title deeds for raising loan for purchase of the said flat. After the purchase of the said flat, the plaintiff has got the said flat assessed to property tax with the Bruhath Bengaluru Mahanagara Palike (BBMP). The plaintiff has paid the property tax up-to- date and he has taken electricity connection from BESCOM.
Plaintiff further submits that the above flat purchased by the plaintiff is situated in a residential apartment building, constructed by the Develpers - M/s Housing Development Syndicate, as per the sanctioned plan issued by the 1 st defendant - Municipal Corporation. The said apartment building, known as "Heritage-9" is constructed in a converted land in Sy.No.11/1 measuring 06 guntas and Sy.No.12/1 measuring 0.5.12 guntas, both situate at 5 CT0028_O.S._3745_2014_Judgment_.doc .
Chinnappanahalli village, K.R.Puram Hobli in earlier Bangalore South taluk and now Bangalore East Taluk vide Conversion Order bearing No.BDS:ALN(E) SR (KR1-Ho) 13: 06-07 dated 13/1/2009 issued by the Special Deputy Commissioner, Bangalore Urban District, Bangalore and is now coming under BBMP Ward No.85 of Doddanakundi. The said two parcels of converted lands situate adjacent to each other making one compact plot, which is referred to as suit 'A' schedule property. The said apartment building known as Heritage-9 is constructed according to the sanctioned plan in the suit 'A' schedule property. The Flata No.302, purchased by the plaintiff in the said apartment building known as suit 'B' schedule property.
Plaintiff further submits that, the suit 'B' schedule property is provided with all civic amenities like electricity and water by the BESCOM and BWSSB authorities and is constructed pursuant to the sanctioned plan issued by the 1st defendant - BBMP. 6 CT0028_O.S._3745_2014_Judgment_.doc .
The said apartment building the suit 'A' schedule property was constructed years ago and all the flats in the said apartment building are occupied by the various purchasers like the plaintiff. When the factual position is as above, the officials of the defendants are frequenting the suit 'B' schedule property, which is in the occupation of the plaintiff and have threatened the plaintiff that the suit 'B' schedule property which is constructed in the suit 'A' schedule property is situate in a portion of Rajakaluve / Nala and the suit 'B' schedule property forms part of the said building and that therefore, the defendants and their servants would demolish the suit 'B' schedule property and would take forcible plaintiff . The defendants also claimed that the Heritage -9 Apartment building is in a portion of the alleged Raja Kaluve and the defendants would demolish the building including the suit 'B' schedule property owned and possessed by the plaintiff. 7 CT0028_O.S._3745_2014_Judgment_.doc .
Plaintiff further submits that suit 'A' schedule property is a private land owned and possessed by one Mr. M.T.Thomas @ Machkel Thomas under a registered sale deed executed on 13/8/1968 as elaborated supra. Therefore, the claim of the defendants is erroneous and without authority in law.
Plaintiff upon enquiry came to know that the Comprehensive Development Plan (CDP) which is the official document prepared by the 5 th defendant - State Government which contains the existence of all and any utility areas reserved like tank, public areas, playgrounds, public open spaces and areas required for civil development. If at all such utilities are existing physically, the same would have been reflected in the CDP and likewise, alleged Raja Kaluve would have been indicated/ shown in the CDP if it would have really existed. Therefore, the threats held out by the defendants are without authority in law and is an afterthought to harass the lawful property owners for wrongful gains.
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Plaintiff further submits that Planning Authorities who have approved the CDP have only approved the sanctioned building plan for construction of th apartment building and on the basis of the said sanctioned plan, the apartment building is constructed. Therefore, the claim of the defendants that the said apartment building which is constructed in the ancestral property, forms part of the Raja Kaluve is wholly erroneous and without authority in law, in as much as the CDP prepared by the very same authority does not indicate existence of the said Raja Kaluve in the suit 'A' schedule property. Therefore, the entire threats held out by the defendants are illegal and therefore, the defendants their servants, agents or officials claiming under them, either in the individually or collectivelly are to be restrained by way of permanent injunction not to interfere with the peaceful possession and enjoyment of the plaintiff and / or demolishing the suit 'B' schedule property or any portion thereof. 9 CT0028_O.S._3745_2014_Judgment_.doc .
The cause of action to file the above suit arose in Bangalore on 20/5/2014, when the officials of the defendants 1 to 4, who are the subordinates and under the control of the 5th defendant came near the suit A and B properties and threatened the plaintiff, who is a resident of suit 'B' schedule property / Flat and others that the plaintiff should vacate the suit 'B' schedule property immediately or else they would come again with JCB and other heavy equipment and would demolish the suit 'B' schedule property and other portion of the said Heritage -9 Apartment building, contending that the said apartment building is in a portion of the alleged Raja Kaluve. The defendants are powerful organs of 5th defendant and are capable of implementing the said threat without any material to substantiate their contention that the suit 'A' schedule property forms part of the alleged Raja Kaluve. The said threats being continuous and recurring and the defendants and their servants are 10 CT0028_O.S._3745_2014_Judgment_.doc .
likely to carry out the said threats any time. Hence this suit.
3. After the service of the summons, the defendants 1 and 2 appeared through their counsel and filed the written statement. The hand summons was issued to the defendant no.3 to 5, but they have not appeared before the court and since they were not placed exparte by my predecessor, I have placed them exparte today.
4. The main contentions of the written statement filed by defendant no.1 and 2 are as under:
The suit of the plaintiff is wholly misconceived and as such liable to be dismissed in limine. The contention of the plaintiff that, he is the owner of the flat known as Heritage -9 apartments is not within the knowledge of this defendant. The entire property wherein the apartment has been constructed on sy.no. 11/1 of Chinnappanahalli village, the said property has come under the jurisdiction of the defendant consequent to the formation of BBMP. The 11 CT0028_O.S._3745_2014_Judgment_.doc .
constructions put up on the property is in violation of sanctioned plan. The plaintiff has not obtained occupancy certificate as required under Section 310 of KMC Act, 1976. The said provision reads as follows:
"No person shall occupy or permit to occupy any such building or part of the building or use or permit to be used, the building or part thereof affected by any work until,
(c) Permission has been revived from the Commissioner in this behalf.
In view of the above provisions, the occupation of the plaintiff itself become unlawful. The constructions put up on the property is in question has been encroached upon the storm water drain. The builder is within the knowledge of the same. The defendant being a statutory authority is bound to remove the encroachment of storm water drain. The Hon'ble High Court of Karnataka has the time again in various writ petitions directed the Corporation to remove the 12 CT0028_O.S._3745_2014_Judgment_.doc .
encroachments made on storm water drain. With regard to the possession of the plaintiff of the flat is not disputed by the defendants. The builder has not taken the occupancy certificate. Hence, Revenue Department has taken the entry of the flat in the 'B' form register. This itself clearly goes to show that, apartment is not covered by any occupancy certificate which is mandatory. The contention of the plaintiff that, the property is situated is residential zone is not disputed by the defendants. Further, it is also not disputed the plaintiffs have obtained the sanctioned plan with respect to the flat. Even this defendant does not deny the contention of the plaintiff that, the schedule property is converted. However, a portion of the building has been built on the storm water drain. The concerned department of these defendants have submitted a report relating to the encroachment of storm water drain. The action of the encroachment has let to clogging of the storm water drain during the rainy season which is causing damages to the 13 CT0028_O.S._3745_2014_Judgment_.doc .
neighbouring properties. These defendants are ready to take steps after corresponding with the BESCOM and steps will be taken to disconnect the electricity given to the fact of standing on the suit schedule property. The question of threatening the plaintiff is not correct. The defendants will take action to remove the encroachment after providing sufficient opportunity as required under the Act. The plaintiff cannot rely on the CDP. The defendants being a statutory authority is dutybound to remove the encroachments made in, in respect of storm water drainage. There is no dispute from the side of the defendants with regard to the sanctioned plan for putting up the residential authority.
The plaintiff has not approached the court with clean hands and suppressed the material facts. The suit is not maintainable and liable to be dismissed in lieu of the mandatory provision under Section 482 of the CPC. There is no cause of action to file the suit. The alleged cause of action is imaginary. Therefore, 14 CT0028_O.S._3745_2014_Judgment_.doc .
viewed from any angle, the plaintiff is not entitled for the any reliefs from the hands of this court. Accordingly, prayed to dismiss the suit with exemplary costs.
5. On the basis of the pleadings of the parties, my predecessor has framed the following issues for consideration:
(1) Whether the plaintiff proves that 'B' schedule property is the part of 'A' schedule property and he is in lawful possession and enjoyment of the 'A' and 'B' schedule properties?
(2) Whether plaintiff proves that B suit property is constructed in Sy.No. 11/1 and 12/1 of Chinnappanahalli village, Bangalore East taluk and B suit property is not constructed in Rajakaluve by encroaching property belongs to defendants?
(3) Whether defendants prove that suit schedule properties are constructed in Rajakaluve belongs to defendants by encroaching the government property as contended?
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(4) Whether plaintiff proves the alleged interference by the defendants?
(5) Whether plaintiff is entitled for the relief as sought for?
(6) What order or decree?
6. In order to prove the case, the plaintiff is examined himself as PW.1 and got marked 11 documents as per Ex.P1 to Ex.P11 and closed his side of evidence. On behalf of the defendants, DW. 1 is examined and got marked Ex.D1 to Ex.D20.
7. Heard both sides and perused the entire records of the case.
8. My findings on the above issues are as under:
Issue No. 1) ............In the affirmative; Issue No. 2) ............In the negative; Issue No. 3) ............In the affirmative; Issue No. 4) ............In the negative; Issue No. 5) ............In the negative; Issue No. 6) ............As per final order for the following:
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9. ISSUE NO.1: It is the specific case of the plaintiff that, the plaintiff is the owner of flat no.302 in the apartment building known as 'Heritage -9' apartments which is the suit schedule property in the above case. The same came to the possession of the plaintiff by virtue of the registered sale deed dated 21/2/2011. From the date of the sale, the plaintiff is in possession and enjoyment of the same without any interference. The plaintiff is paying the up to date taxes to the BBMP had the electricity connection from BESCOM and all other civic amenities are provided to the schedule property. The defendant himself has sanctioned the sanctioned plan for the construction of the building, the schedule land is converted and all the utility areas like tank, public areas, play grounds, public open spaces and areas required for the civic development are in the schedule property. In order to support claim of the plaintiff, plaintiff has produced 17 CT0028_O.S._3745_2014_Judgment_.doc .
Ex.P1 which is the sale deed executed by one Mohan Thomas in favour of plaintiff on 21/2/2011. Ex.P2 is the letter issued by the Housing Finance Ltd., stating that, the original documents are in their possession. Ex.P3 is the property register extract stands in the name of the plaintiff. Ex.P4, Ex.P5 are the tax paid receipts, Ex.P6 and Ex.P7 are the electricity bills, Ex.P10 to Ex.P11 are the photographs of the suit schedule property. It is pertinent to note here that, even the defendant in his written statement did not deny that the plaintiff is owner of the suit schedule property, the same is in possession and he has obtained sanctioned plan for the construction of the house and entire lands are converted and therefore the plaintiff is the lawful owner of the suit schedule property. From the admissions of defendant with regard to the title deeds as well as possession of the suit schedule property, it is not necessary to discuss much with regard to the issue no.1. Accordingly, I answer issue no.1 in the affirmative. 18 CT0028_O.S._3745_2014_Judgment_.doc .
10. ISSUE NO.2 TO 4: It is the specific contention of the defendant that, the plaintiff has encroached the Rajakaluve and constructed the suit schedule property. In para no.2 of the written statement, the defendant has clearly stated that, the construction put up on the property in question has been encroached upon the storm water drain and the builder is within the knowledge of the same. In the cross-examination of the PW.1, he clearly admitted that 'it is correct to suggest that the government has fixed the boundary of Rajakaluve near to my apartment.' He further deposed that it is correct to suggest that the government has only marked the existence of rajakaluve on the wall and they have not demolished any building. From the above admissions of PW.1, it is clear that the building of the plaintiff is situated in the rajakaluve. It is pertinent to note here that, the plaintiff himself admitted that, he has not enquired the matter with regard to the marking of the existence of the rajakaluve on the wall in any 19 CT0028_O.S._3745_2014_Judgment_.doc .
authority. Further, he clearly admitted that, they have received the notice from the BBMP with regard to the existence of the rajakaluve near their apartment. So, it is very clear that though plaintiff contends that he has not constructed the building in the rajakaluve which is the property belonging to the BBMP, it is not correct. On perusal of Ex.D7 which is a photograph confronted to the PW.1, the governmental storm water drain is clearly shown. Ex.D8 is the order of the conversion wherein clause no. 7 of conversion order clearly says that, if at all there is a attached phot karab land, it shall be reserved for the purpose of the government as under Section 64 of the Karnataka Land Revenue Act. In the conversion order, it has been clearly mentioned that, in sy.no. 11/1 and 12/1, 1 gunta kharab was reserved for the purpose of the public and further it is stated that, for that kharab land, the applicant has no rights over the same. From the above, it is clear that, even in the land in sy.no. 11/1 and 12/1, a kharab land was reserved for the 20 CT0028_O.S._3745_2014_Judgment_.doc .
purpose of public usage. The same has been admitted by the PW.1 in his cross-examination. Ex.D11 is the original tippani with regard to sy.no. 12 wherein it has been mentioned that, as per the akarband in sy.no. 11 and 12, 1 guntas of land is reserved for the purpose of rajakaluve. Ex.D12 is the letter written by the Deputy Commissioner to the Commissioner of the BBMP wherein he has clearly mentioned that, a rajakaluve is passing in sy.no. 3 to 14 of Chinnappanahalli village wherein multi-storied apartments and private residential layouts are constructed after encroaching the rajakaluve is clear from the report of the Surveyor. Further, in Ex.D13 which is the letter issued by the Commissioner of the BBMP to the Tahasildar of Bengaluru eastern taluk wherein he has clearly mentioned that in sy.no. 3 to 14 of Chinnappanahalli grama, rajakaluve is passing and the same was encroached by M/s Rohan Builders, Heritage apartment, Srinivasa Reddy and others. Ex.D14 and Ex.D15 are the documents in connected with the 21 CT0028_O.S._3745_2014_Judgment_.doc .
removal of the encroachers from the rajakaluve. Ex.D17 and Ex.D18 are the certified copies of judgment in O.S.25170/2014. The aforesaid suit was filed with respect to the land in Roma Pearl Apartments which is situated in sy.no. 10/1 of Chinnappanahalli village. In the judgement passed in that case, the court clearly held that, Roma Pearl Apartment is constructed on the portion of the rajakaluve which is encroached by the plaintiff developer and therefore he is not entitled to the relief of injunction from the court and accordingly the suit filed by one P.G.Muthappa against BBMP and others was dismissed. I have carefully gone through the Ex.D16 to Ex.D19 wherein it is clear that, the suit filed by P.G.Muthappa claiming to be the owner of Roma Pearl Apartment was dismissed since he has constructed the apartment in the portion of the rajakaluve. Ex.D20 is the information claimed by the government with regard to the vacating of the constructions put up in rajakaluve and government 22 CT0028_O.S._3745_2014_Judgment_.doc .
storm water drains in Chinnappanahalli village, wherein it is also clear that, the present suit with respect to sy.no. 11/1 and 12/1 is pending before the court and for that reason, the removal of the construction was not completed. One of the contention taken by the counsel for the plaintiff that, there is no mention with regard to sy.no. 11/1 and 12/1 in Ex.D12. However, there is a mention with regard to the lands covering under Sy.No.3 to 14 of Chinnappanahalli village in Ex.D12. The same was admitted by the DW.1. Even DW.1 did not dispute that, the BBMP itself granted katha in favour of the plaintiff, sanctioned the plan for the construction of the house and the conversion order was passed with respect to suit schedule land, however it itself does not confer absolute right on the party, since he has constructed building in the portion of the rajakaluve situated in sy.no. 11/1 and 12/1. Even DW.1 also re- uttered with regard to the conditions put forth in the conversion order and deposed that, the kharab land 23 CT0028_O.S._3745_2014_Judgment_.doc .
mentioned in conversion order itself is rajakaluve. From the above admissions and depositions and documents produced by both the parties, it is clear that, the plaintiff has encroached a portion of the rajakaluve and constructed the Heritage apartment. Since from the documents submitted by the defendants which were not denied by the plaintiff, clearly shows that, there exists a rajakaluve in sy.no. 11/1 and 12/1 and the apartment was constructed by encroaching the portion of the rajakaluve. For that purpose only, the defendants have interfered with the suit schedule property in order to mark the existence of rajakaluve which is carried in their official purpose and not interference. So, whatever the cause of action pleaded by the plaintiff in column no.12 is the act done by the officials of the BBMP in accordance with law. Accordingly, I answer issue no.2 in the negative, issue no.3 in the affirmative and issue no.4 in the negative.
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11. ISSUE NO.5: The suit of the plaintiff is one for permanent injunction restraining the defendants or any person claiming under them from demolishing the schedule property or any portion of the property and also from dispossessing the plaintiff from the schedule property or portion of the schedule property in any manner whatsoever as claimed by him. Since the defendants also clearly admit that, the plaintiff is the owner of the suit schedule property and he is in the possession of the same by virtue of the alleged sale deed, the order of the conversion, the katha certificate, katha, tax paid receipts, the electricity demand bills etc., he has perfected his title over the schedule property. More than that, in the written statement of the defendant, he clearly admitted that, the BBMP itself has sanctioned the plan for the purpose of construction of Heritage apartments. However, as rightly contended by the counsel for the defendants, a rajakaluve is running from sy.no. 3 to 14 of Chinnappanahalli village is 25 CT0028_O.S._3745_2014_Judgment_.doc .
proved by her. The documents submitted by the defendants, the earlier judgment of the court in O.S.No. 25170/2014 clearly shows that, in the aforesaid survey numbers the rajakaluve is going. The admission on the part of PW.1 that, the government has marked the existence of the rajakaluve upon the wall of the apartment and the photographs produced by the defendants, the admission of PW.1 with regard to the existence of the rajakaluve near to his apartment clearly shows that, the plaintiff and other apartment owners have built the apartments after encroaching the portion of rajakaluve. It is important to note here that, the defendants have not stated that what is the measurement of encroachment made by the plaintiff while constructing the building. However, from the admissions of PW.1 and the depositions of DW.1 it is clear that, the portion of Heritage apartment comes under the purview of the rajakaluve. Therefore, I am of the opinion that, merely because the plaintiff is in possession and enjoyment of the 26 CT0028_O.S._3745_2014_Judgment_.doc .
same, he is not entitled to encroach the property of the BBMP. Accordingly, even though he has proved the issue no.1, I am of the opinion that, he is not the lawful owner of the entire Heritage apartment. However, the defendant authority shall not take immediate steps without giving an opportunity to the plaintiff to recover the encroached portion since the plaintiff has already constructed the apartments therein. Accordingly, I answer issue no.5 in the negative.
12. ISSUE NO.6: From my above discussions and reasoning, 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.
Under the facts and circumstances of the case, there is no order as to costs. 27 CT0028_O.S._3745_2014_Judgment_.doc .
Draw decree accordingly.
*** [Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 20 th day of February 2020.] [PRASHANTHI.G] XXVII Additional City Civil Judge. BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Rajashekhar.K.
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 Ranganath
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 Certified copy of sale deed dated 21/2/2011 Ex.P2 Acknowledgement issued by GIT Housing finance Limited Ex.P3 Property register extract form No.B Ex.P4 Certified copy of tax paid receipt Ex.P5 Receipt issued by BBMP Ex.P6 to Electricity demand bills Ex.P8 28 CT0028_O.S._3745_2014_Judgment_.doc .
Ex.P9 to Two photographs along with CD Ex.P11
4. List of the documents marked for the defendants:
Ex.D1 Village map
Ex.D2 Photograph
Ex.D3
and Photographs
Ex.D4
Ex.D5
and Photographs
Ex.D6
Ex.D7 Photograph
Ex.D8 Certified copy of conversion order
in respect of the suit schedule
property
Ex.D9 Certified copy of pakka book
Ex.D10 Certified copy of pakka book
Ex.D11 Certified copy of tippani
Ex.D12 Certified copy of letter dated
15/5/2012
Ex.D13 Certified copy of letter dated
29/06/2012
Ex.D14 Certified copy of letter dated
8/6/2012
Ex.D15 Certified copy of tippani dated
15/07/2012
Ex.D16 Certified copy of plaint in
O.S.25170/14
Ex.D17 Certified copy of Judgment in
O.S.25170/14
Ex.D18 Certified copy of decree in
O.S.25170/14
Ex.D19 Certified copy of written statement
in O.S.25170/14
29 CT0028_O.S._3745_2014_Judgment_.doc
.
Ex.D20 The information given by the BBMP, Mahadevapura valaya with regard to Rajakaluve.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
............Judgement pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
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