Bangalore District Court
Manjunatha K vs Bruhat Bengaluru Mahanagara Palike ... on 2 May, 2025
1 OS.No.7776/2016
KABC010262632016
IN THE COURT OF THE LXI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-62)
Dated this the 2nd day of May, 2025
-: PRESENT :-
Sri. Anand T. Chavan, B.com, LL.B (Spl),
LXI Addl. City Civil and Sessions Judge,
Bengaluru City.
ORIGINAL SUIT No.7776/2016
Plaintiff/s : Manjunatha K,
S/o. Kariyappa,
Aged about 37 years,
R/at. No.229, 2nd Cross,
Devasandra Dhakale,
Singayyanapalya,
Mahadevapura Post,
Bengaluru - 560 048.
(By Sri.G.H.Nadiger, Advocate)
V/s.
Defendant/s : 1. Bruhath Bengaluru
Mahanagara Palike,
Rep. By its Commissioner,
N.R.Square, Bengaluru - 2.
2 OS.No.7776/2016
2. The Joint Commissioner,
Bruhath Bengaluru
Mahanagara Palike,
Mahadevapur,
Bengaluru - 560 048.
3. The Executive Engineer,
Bruhath Bengaluru
Mahanagara Palike,
Mahadevapura Zone,
Devasandra Ward,
Mahadevapura,
Bengaluru - 560 048.
4. The Assistant Executive
Engineer,
Mahadevapura Ward,
Mahadevapura,
Bengaluru.
5. The B.W.S.S.B,
Rep. By its Secretary,
(C.A.O.) Cauvery Bhavana,
K.G.Road, Bengaluru.
6. The Executive Engineer,
BWSSB, (Department of Water
Supply), Anand Rao Circle,
Bengaluru - 9.
(D1 to 4 Rep. By Sri.D.N.R.,
Adv)
(D5 & 6 Rep. By Sri.K.B.J.,
Adv)
3 OS.No.7776/2016
Date of institution : 08.11.2016
of the suit
Nature of the suit : Declaration and
[suit on pronote, suit Injunction
for declaration and
possession, suit
for injunction]
Date of the commencement : 09.09.2019
of recording of the evidence
Date on which the : 02.05.2025
Judgment was pronounced
Year/s Month/s Day/s
Total Duration : -08- -05- -24-
JUDGMENT
This suit is filed by the plaintiff against defendants seeking following reliefs ;
(a) Seeking to declare that defendants are not entitled to form road or to lay sewerage line in B schedule property, which is portion of A schedule property.
(b) To grant mandatory injunction against defendants, directing them to remove the sewerage line and road formed in Item No.(a) of B schedule property so as to restore the same to original status at their cost and consequently to direct defendants to put back plaintiff into 4 OS.No.7776/2016 peaceful possession and enjoyment of item No.(a) and (b) of B schedule forthwith simultaneously.
Or in the alternative, If court comes to conclusion that such relief of mandatory injunction cannot be granted to plaintiff, then to direct defendants to pay present day market value of the land totally measuring 3568 sq.ft. to plaintiff together with interest and other statutory benefits as provided under Land Acquisition Act.
(c) To grant permanent injunction against defendants restraining them, their subordinates, labourers, contractors, coolies or any other persons claiming under them from taking up any acts of formation of road or line sewerage pipes or doing any other act impinging rights and ownership of plaintiff over A schedule property.
(d) To award costs of proceedings;
(e) To pass such other order/s as deemed fit and proper by the court in the facts and circumstances of the case.
The schedule of the plaint is as under;
A SCHEDULE PROPERTY All that piece and parcel of agricultural land bearing old Sy.No.41/9, new Sy.No.41/19, measuring 29 guntas 5 OS.No.7776/2016 and 1 gunta of karab, situated at Devasandra Village, Singaianapalya, K.R.Puram Hobli, Bengaluru East Taluk, Bengaluru District, now oming within the limits of BBMP in Ward No.55, Mahadevapura Post, Bengaluru - 560 048 and bounded on;
East by : Sy.No.41/10 & 11West by : Road;
North by : KIADB land;
South by : Sy.No.41/12.
B SCHEDULE PROPERTY
a) All that piece and parcel of a portion of A schedule property which is an alleged road commences from Singayyanapalya Main Road towards eastern side measuring west to east : 145 feet and north to south : 16 feet width totally measures 2320 sq. ft. and bounded on :
East by : Sy.No.41/11, West by : Road;
North by : Remaining property in A schedule property and thereafter Sy.No.41/10. South by : remaining property in A schedule property
b) All that piece and parcel of a portion of A schedule property which is an alleged road and also called as Sanitary line, measuring south to North : 78 feet and east 6 OS.No.7776/2016 to west : 16 feet totally measures 1248 sq.ft. and bounded on :
East by : remaining land in A schedule property, West by : private property, North by : land acquired by KIADB in Sy.No.41/9, South by : Remaining property in A schedule property and Muneshwara temple belongs to plaintiff.
2. The brief averments of plaint are that the plaintiff is absolute owner in possession of A schedule property, which is now within territorial limits of BBMP, particularly in ward No.55 of Mahadevapura Post, Bengaluru. The plaintiff has acquired the said property under last Will executed by his senior uncle Mallappa S/o. Mallappa dated 06.02.2007. The said Mallappa died on 13.02.2007 leaving behind said Will and as per said Will plaintiff being the sole legatee acquired right, interest, title and physical possession of aforesaid entire A schedule property by way of testamentary succession. The original Will is produced in OS.No.8700/2006 and the said matter is now pending before Hon'ble High Court of Karnataka in RFA.No.1534/2015. The copy of the said Will is produced in this case. A schedule property is portion of larger extension of survey number land measuring 1 acre 4 7 OS.No.7776/2016 guntas and out of which 13 guntas of land and 1 gunta of karab land was acquired for public purpose by the state for benefit of Karnataka Industrial Area Development Board (KIADB). After acquisition, the extent available in A schedule property remained with plaintiff and he is entitled for the same as an absolute owner. The entire extent was initially belonged to one Munipillappa S/o. Muniswamappa of Garudacharapalya, erstwhile Bengaluru South Taluk and later said Munipillappa being absolute owner of said land, alienated the same in favour of senior uncle of plaintiff by name Mallappa S/o.Mallappa under registered Sale Deed dated 18.01.1961, which was executed before Sub-Registrar, Bengaluru South Taluk, Bengaluru. Accordingly Mallappa got mutated his name to khatha of said land and exercised ownership over the same with possession. Subsequently due to typographical errors such Sale Deed was rectified under Rectification Deed dated 01.01.1974 and fresh mutation was executed in favour of Mallappa after acquisition of 14 guntas in said survey number in favour of KIADB under MR.No.2/2008-
09. Further senior uncle of plaintiff by name Mallappa had no issues and his wife was pre-deceased to him. Hence plaintiff himself took care of said Mallappa with love and affection and in recognition of the same, said Mallappa 8 OS.No.7776/2016 bequeathed his self acquired property including aforesaid A schedule property under Will dated 06.02.2007. Thereafter plaintiff got mutated his name to said property under MR.No.3/2008-09. Further though suit schedule property is not converted for non-agriculture use, cultivation of said land has become impracticable due to urbanization of neighbouring lands. Thereafter plaintiff on the advice of well-wishers got surveyed suit schedule property to ascertain whether the entire available extent of land is intact or not. The survey authorities surveyed said land by giving notice to neighbours and plaintiff and prepared a sketch, wherein they pointed out illegal encroachment of 1½ guntas and 2½ guntas respectively by neighboring land owners in Sy.No.41/10 and 41/11 of Devasandra Village, K.R.Puram Hobli. Hence plaintiff filed O.S.No.3358/2011 before this court, which now pending before Hon'ble High Court of Karnataka under RFA.No.928/2016. It is further averred that taking advantage of innocence and lack of worldly wisdom of plaintiff, unscrupulous persons squatted on the portion of suit schedule property by creating and fabricating documents, which led to filing of O.S.No.5874/2014 by plaintiff. Such neighboring unscrupulous persons, who are in illegal occupation of portion of A schedule property 9 OS.No.7776/2016 with the assistance of local political leaders influenced defendant No.1 to 3 to form a public road in portions of A and B schedule property. Further defendant No.1 to 6 without acquiring said property were attempting to lay main sewerage pipe in B schedule property by starting said work abruptly on 25.06.2012. Despite objections raised by plaintiff, they turned deaf ears and as a result plaintiff approached jurisdictional Police on 26.11.2012, which yielded no results. Thereafter plaintiff approached Hon'ble High Court of Karnataka in WP.No.24375/2012 (LB-BMP) against defendant No.1, 5 and Corporator by name Smt. Manjuladevi. The Hon'ble High Court of Karnataka by considering violation of civil rights by defendant No.1 and 5 and by holding that plaintiff has to work out his remedy before Civil court, disposed of said matter as preliminary hearing stage. However in view of filing of said writ petition defendants stopped work at that stage and in the meanwhile term of previous corporator Manjuladevi was completed. Thereafter a new member was elected and persons who are inimical towards plaintiff squatted on suit schedule property and neighbours approached defendants to restart work on B schedule property by bringing pressure on councilor. Further defendants without realizing whether they are entitled to 10 OS.No.7776/2016 form road or to lay sewerage line, without acquisition, highhandedly started the work of sewerage line under the ground of B schedule property. Further in this regard a resolution was also passed in the meeting of councilors and necessary paper works are ordered to be commenced. After knowing said fact through reliable sources, plaintiff was further informed that said work is about to begin under special grant for the year 2016-17 and accordingly subordinates of defendants started frequently visiting B schedule property on the guise of inspection on 06.10.2016 and on subsequent dates. Further there is no any 9th Main Road in suit schedule property and there is Singanapalya Main Road used by plaintiffs to access Sri. Muneshwara Temple, which is his family deity. Accordingly there is serious imminent danger of illegal formation of road and drainage line in B schedule property without lawful acquisition and defendants were about to float tenders for the work in collusion and for the benefit of unscrupulous persons against whom plaintiff has already filed suit. Hence without any option plaintiff is constrained to file present suit.
3. It is necessary to mention that, though initially suit was filed only for relief of declaration and perpetual injunction, during pendency of the suit the plaintiff has 11 OS.No.7776/2016 got amended the plaint by incorporating additional pleadings and additional relief of mandatory injunction, wherein it is averred that during pendency of the suit, in total defiance of interim order granted by this court to maintain status-quo in B schedule property, defendants in collusion with each other completed formation of road and laying of drainage pipe over B schedule property during 1 st week of August 2017 despite serious protest and objections made by plaintiff. Such high handed illegal acts came to be done by defendants due to political pressure and plaintiff lodged complaint before Commissioner BBMP and in the office of 2nd defendant on 20.04.2017 and 21.04.2017. Despite such complaint, said authorities failed to take any action and they deliberately ignored the same to enable their subordinates to complete said illegal and high handed acts by misusing their power. The defendants are not suppose to form the road in a property of an individual without lawfully acquiring the same and without paying compensation. Hence defendants have violated property right of plaintiff guaranteed under Article 300 (A) of Indian Constitution. They illegally completed the above road in the month of August 2017. Hence present suit and it is prayed to decree the same as prayed for.
12 OS.No.7776/20164. Defendant No.1 to 6 have appeared through their counsel in pursuant to summons. Defendant No.1 to 4 have filed their common written statement, wherein they have denied the very right of plaintiff to seek relief claimed in the suit. It is further averred that suit is not maintainable and same is filed for harassing and coercing defendants into terms and same lacks bonafides. These defendants have specifically denied the right, title and possession of plaintiff over A schedule property and it is also denied that plaintiff acquired the said title by virtue of Will dated 06.02.2007. It is further averred that the said Will is concocted, fabricated, cooked-up and forged document. Further the B schedule property claimed by plaintiff is a public road absolutely belonging to Bruhath Bengaluru Mahanagara Palike (BBMP for short) and it is maintained by it since long time. Further the said road is in existence since time immemorial, within limits of CMC Mahadevapura and since above matter is pending before Hon'ble High Court of Karnataka in RFA.No.1534/2015, the plaintiff is not entitled to maintain this suit for above reliefs. It is further averred that no vacant land is available as could be seen from photographs and erstwhile owner of aforesaid land has sold sites in said land by forming layout. Further defendant No.1 to 4 have denied to know 13 OS.No.7776/2016 acquisition of portion of A schedule property by KIADB and they have denied that after such acquisition plaintiff had retained remaining portion of said land as per plaint A and B schedule. These defendants have further averred that purchase of schedule property by Mallappa is not within their knowledge and the sale deed establish that wife of Mallappa long back sold sites formed in A schedule property and a road measuring 15 feet width exist towards southern side. It is the same road (B schedule property) which is claimed by plaintiff to knock away valuable property of BBMP, which is in existence since time immemorial. The averments of plaint that senior uncle of plaintiff had no issues and he bequeathed suit schedule property in favour of plaintiff under above Will dated 06.02.2007 and thereafter name of plaintiff was mutated as per MR.No.3/2008-09 are said to be concocted and cooked-up. It is further averred that said got up documents do not create any right, title or interest to plaintiff over a public road. It is further averred that the photos disclose erection of electrical poles, culverts and drainage on B schedule property since long back and same is not a private property. Further the suit for bare injunction is not maintainable as plaintiff is not in possession of aforesaid public road. Further the entire 14 OS.No.7776/2016 work on suit schedule property/public road is completed long back and as such plaintiff is not entitled for any relief claimed in the suit. These amongst other grounds it is prayed to dismiss the suit.
5. After incorporation of additional para No.13(a) and additional relief of mandatory injunction in plaint by way of amenement, defendants No.1 to 4 have filed their additional written statement, wherein it is reiterated that the road in question is already in existence since time immemorial and the entire locality comes within jurisdictional of BBMP. Further it is denied that after filing of the suit defendants in defiance of interim order of this court to maintain status-quo over B schedule property, proceeded to form road by laying drainage pipe in B schedule property, despite objections raised by plaintiff. It is further averred that defendants have not formed any new road nor laid any new drainage. Further the said road is in existence since time immemorial and alleged high handedness of defendants under political pressure are denied in toto. It is further averred that portion of the road was damaged on account of heavy rains in Bengaluru City and the interest of public has to be safeguarded by patching up work. The plaintiff is trying to cause extensive hardship and damage to people of the locality by knocking 15 OS.No.7776/2016 away valuable property of BBMP. Further there are number of buildings owned by different persons and present suit is filed to cause hardship to them. Further no fresh road is formed in above property and no compensation will be paid for developing a road which is already in existence. It is further averred that plaintiff without proving his title over suit schedule property, is not entitled for any relief of mandatory injunction or compensation in respect of said property, which has never been acquired by BBMP. Hence present suit is not itself maintainable and same is liable to be dismissed. These amongst other grounds it is prayed to dismiss the suit.
6. Defendant No.6 has filed his separate written statement and same is adopted by defendant No.5 by filing memo of adoption. It is averred in their written statement that the plaintiff is guilty of suppression and he has not approached the court with clean hands. Further the suit is liable to be dismissed on the ground of not issuing statutory notice under Section 126 of BWSSB Act. The averments of plaint with regard to title and possession of suit schedule property of plaintiff by virtue of Will dated 06.02.2007 alleged to have been executed by his senior uncle are denied in toto. Further these defendants have denied to know production of said original Will in 16 OS.No.7776/2016 OS.No.8700/2006 by plaintiff and pendency of said proceedings under RFA.No.1534/2015. These defendants have further denied the averments of plaint with regard to acquisition of portion of A schedule property by KIADB and succeeding remaining portion by plaintiff under above Will. Further averments of plaint with regard to encroachment of portion of land bearing Sy.No.41/10 and 41/11 belonging to plaintiff by its neighbours and filing of OS.No.3358/2011 and its pendency before Hon'ble High Court of Karnataka under RFA.No.928/2016 are also denied in toto. These defendants have denied to know filing OS.No.5874/2014 against unscrupulous persons. The allegations that defendants are illegally trying to form road and to lay main sewerage pipe in B schedule property abruptly on 25.06.2012, approach by plaintiff to jurisdictional Police on 26.11.2012 are denied in toto. Further the averments of filing of WP.No.24375/2012 by plaintiff before Hon'ble High Court of Karnataka and relegating plaintiff to civil court to workout his remedy as per order dated 26.07.2012 are also not admitted. Further subsequent attempts by defendants to form road and to lay sewerage lines are also denied in toto. It is further specifically averred by defendant No.6 that, defendant No.1 to 4 have formed public road in old Sy.No.41/9 17 OS.No.7776/2016 measuring 29 guntas situated at Devasandra Village, Singayyanapalya, KR.Puram Hobli, which is now within limits of BBMP Ward No.55. Further layout was formed and some of site holders already constructed houses by residing in it. After development of said layout BBMP has formed road and general public are utilizing the same. Further as per request of local residents BBMP and this defendant board have given water connection to them by laying water lines on the edge of public roads formed and maintained by BBMP. Further to avoid contamination of water sewerage board has laid down sewerage pipe lines two years back. Hence after ascertaining existence of public road the above process has been carried out by defendants. Now plaintiff by suppressing aforesaid facts has filed this false suit. It is admitted that WP.No.24375/2015 against defendant No.1 to 5 was dismissed with liberty to approach civil court to work out his remedy. Unless and until plaintiff succeeds in suit, he has no right, title and interest over above public road, which is formed several years back by laying water pipe lines. These amongst other grounds it is prayed to dismiss the suit.
7. On the basis of pleadings of both sides, this court has framed following issues:-
18 OS.No.7776/20161. Whether the plaintiff proves that he acquired his title over the suit schedule property under Will dated 06.02.2007 executed by Mallappa?
2. Whether the plaintiff further proves the alleged possession in respect of the suit property?
3. Whether the plaintiff further proves that he is entitled for the relief sought?
4. What order or decree?
ADDITIONAL ISSUES DATED 01.06.2023.
1. Whether the plaintiff further proves that the defendants have highhandedly formed the road and laid sewerage pipes in Item No.(a) &
(b) of the B schedule property?
2. Whether the plaintiff is entitled for grant of mandatory injunction against the defendants to restore of the suit schedule property to the original status as on the date of the filing of the suit?
3. Whether the plaintiff further proves that in the alternative the defendants are liable to pay compensation to him as per the present marked value of the Item No.(a) & (b) of B schedule property totally measuring 3568 sq.ft.
together with interest and statutory 19 OS.No.7776/2016 benefit as provided under Land Acquisition Act?
4. Whether the plaintiff has properly valued and paid the proper court fee on the amended prayers?
8. In support of his case plaintiff has got examined himself as PW.1 and another witness as PW.2. Further plaintiff has got marked as many as 40 documents as per Ex.P.1 to 40. On the other hand though defendants have not chosen to lead their evidence.
9. Heard arguments of counsels for plaintiff and defendant No.1 to 6. Perused and oral and documentary evidence on record.
10. The following are answers to above issues;
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;
Addl. Issue : In the Negative
No.1 dated
01.06.2023
Addl. Issue : In the Negative
No.2 dated
01.06.2023
20 OS.No.7776/2016
Addl. Issue : In the Negative
No.3 dated
01.06.2023
Addl. Issue : In the Affirmative
No.4 dated
01.06.2023
REASONS
11. ISSUE NO.1 AND 2:- these issues are taken together for consideration as findings on one issue may have bearing on finding of other issue and also to avoid repetition of facts, evidence and reasoning. In support of his case plaintiff has entered into witness box as PW.1 and he has filed his affidavit in lieu of chief examination by reiterating entire averments of plaint.
12. It is specific case of plaintiff that he acquired title over suit schedule property under Will dated 06.02.2007 executed by his senior uncle Mallappa and in pursuant to acquiring title under said Will, he is in possession and enjoyment of suit schedule property. In order to prove his right, title and possession over suit schedule property, plaintiff has produced certified copy of Will dated 06.02.2007 said to have been executed by his senior uncle Mallappa S/o. Mallappa as per Ex.P.1, certified copy of death certificate of said Mallappa as per 21 OS.No.7776/2016 Ex.P.2, certified copy of Sale Deed dated 18.01.1961 said to have been executed in favour of aforesaid Mallappa in respect of suit schedule property as per Ex.P.3, typed copy of said Sale Deed as per Ex.P.3(a), certified copy of Rectification Deed in respect of Ex.P.3 Sale Deed as per Ex.P.4 and typed copy of Ex.P.4 as per Ex.P.4(a). PW.1 has specifically asserted that he has produced the originals of Ex.P.1 to 4 documents in OS.No.8700/2006, which are on the file of Hon'ble High Court in RFA case.
13. Further plaintiff has got marked Mutation Extracts of Sy.No.41/9 land bearing MR.No.2/2008-09 as per Ex.P.5, which shows that 13 guntas of the land is standing in the name of KIADB and remaining 29 guntas of the land is standing in the name of Mallappa S/o. Mallappa. He has further produced RTC Extract of Sy.No.41/9 as per Ex.P.6 showing similar names as a owner of said land with same measurement. Further plaintiff has produced Mutation Extracts of Sy.No.41/9 and 41/19 land bearing MR.No.3/2008-09 as per Ex.P.7, which shows that 13 guntas of the land bearing Sy.No.41/9 is standing in the name of KIADB and remaining 29 guntas of the land bearing Sy.No.41/19 is mutated in his name as per said document. He has produced RTC of the year 2016-17 of Sy.No.41/19 22 OS.No.7776/2016 standing in his name as per Ex.P.8 and asserts that the said documents are sufficient to prove his title over suit schedule land bearing Sy.No.41/19.
14. He has further produced copy of notice issued by surveyor in the year 2010 for measurement of said Sy.No.41/19 as per Ex.P.9, copy of panchanama conducted by said surveyor showing measurement of Sy.No.41/19 land as per Ex.P.10, copy of sketch prepared during said mahazar showing encroachment of certain portion of Sy.No.41/19 by neighbours, copy of letter issued by KIADB dated 13/14.11.2008 intimating acquisition of only 14 guntas of Sy.No.41/9, out of total land of 1 acre 3 guntas as per Ex.P.12, sketch prepared by KIADB in respect of said land of 14 guntas as per Ex.P.13, copies of tax receipts as per Ex.P.14 and 15. He has further produced certified copy of W.P.No.24375/2012 preferred by him against defendants showing disposal of said petition with direction to plaintiff to approach civil court for seeking remedy of the grievance as per Ex.P.16, village map of Mahadevpur Village as per Ex.P.17, photos of suit schedule properties as per Ex.P.18 to 26, CD of said photos as per Ex.P.27 and receipt issued by photographer as per Ex.P.28.
23 OS.No.7776/201615. Subsequently PW.1 has filed his additional chief-examination affidavit in pursuant to amendment of plaint and incorporation of additional relief of mandatory injunction against defendants. PW.1 has got marked gazette notification of January 2019 as per Ex.P.29, copy of Sale Deed dated 05.08.2008 executed by him in favour of one H.L. Lakshmi in respect of khatha No.177 site of Sy.No.41/9 as per Ex.P.30, copies of Form A issued by BBMP in respect of Sy.No.41/9, new No.41/19 in his name as per Ex.P.31 and 32, certified copy of plaint in OS.No.5874/2014 as per Ex.P.33, copy of chief- examination affidavit with cross-examination of one Vajramuni K. S/o. Late Kempanna as per Ex.P.34, copy of three applications filed by him before Joint Commissioner BBMP dated 26.12.2012, 25.11.2014 and 26.11.2014 as per Ex.P.35 to 37, copy of order of KIADB dated 10.01.2008 as per Ex.P.38, copies of Hissa Mojani as per Ex.P.39 and 40.
16. However as rightly pointed out by counsel for defendant No.1 to 4 during arguments, the plaintiff has not produced any basic documents to prove his relationship with aforesaid Mallappa and Ex.P3 certified copy of Sale deed dated 18.01.1961 does not clearly show 24 OS.No.7776/2016 the Survey number of land sold under said sale deed. Further in Ex.P3(a) type copy of Ex.P3, it is mentioned that out of Total extent of 3 acres in Sy.No.41 land, land measuring 2 acre 8 guntas in Sy.No.42/10 is sold and as per Ex.P4 Rectification deed dated 01.01.1974, Sy.No.42/10 measuring 2 acre 8 guntas is corrected as Sy.No.41/9 measuring 1 acre 3 guntas. However absolutely no supporting documents are produced for rectifying said aspects in Ex.P4. Further as rightly argued by learned counsel for defendants No.1 to 4, absolutely no documents are put forth to prove title of vendor Munipillappa and the survey number of lands are not mentioned in boundaries of property sold in schedule of Ex.P3 and 4 deeds. Hence the very source of title and identification of location of suit schedule property is seriously clouded and same is not proved to the satisfaction of the Court.
17. Further as rightly argued by learned counsel for defendants No.1 to 4, when the very title of plaintiff as well as his uncle Mallappa in respect of suit schedule land is clouded, the present suit is not maintainable without seeking comprehensive relief of declaration of his title. In this regard said counsel has relied upon following case law:
25 OS.No.7776/2016AIR 2008 Supreme Court 2033 between Anathula Sudhakar V/s. P. Buchi Reddy.
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor.
18. Hence despite challenging very title of plaintiff over suit property, no relief of title is claimed by plaintiff in respect of suit schedule property. In relevant portion of cross-examination by counsel for defendant No.1 to 4. Plaintiff asserts that the suit is filed for land bearing old Sy.No.41/9 and new Sy.No.41/19 and concerned Assistant Commissioner has issued endorsement in that regard. However he admits that he has not produced said endorsement before court.
19. Further he asserts that BBMP has laid down the road and drainage at the middle of his land and at the time of filing of suit, said land was still an agriculture land. On confronting the photos produced by him, PW.1 admits that houses are already constructed at the both 26 OS.No.7776/2016 sides of said road and the house seen in Ex.P.21 photo is constructed prior to merge of said land within BBMP jurisdiction. He has denied the suggestion that the above road was formed by concerned CMC before taking over said area by BBMP. Further on confrontation of Sale Deed executed by him in favour of Lakshmi Devi in the year 2009, PW.1 admits that he had not converted said land as NA Land at the time of selling said site and subsequently he has produced Sale Deed of said site dated 05.08.2008 as per Ex.P.30. He has denied that, in said Sale Deed road seen in Ex.P.21 is mentioned, but admits that in view of construction of several houses at said place, there is no agriculture land in it. He asserts that as many as 8 houses were constructed in said land illegally and suits are filed against it. He has denied suggestions that there is no nexus between land of such houses and present suit schedule property. Further PW.1 admits that though suit property merged with jurisdiction of BBMP in the year 2008-09, he has not paid tax to BBMP even after getting changed the khatha of said land. He pleads ignorance to suggestions that road seen in Ex.P. 21 photo has been used since 2012-13 and same is named as 9 th Cross.
20. As far as Ex.P.1 Will is concerned PW.1 asserts that his senior uncle expired in the year 2006 and he has 27 OS.No.7776/2016 no impediment to examine any one of attestor of said document. He has denied the suggestion that said Will has been created by him. Despite said suggestion, PW.1 has not chosen to examine any of attesting witness of said Will to prove his title over suit schedule land.
21. Further PW.1 does not deny the suggestion that the typed copy of Sale Deed dated 18.01.1961 does not disclose survey number and measurement, he admits that in aforesaid road is named as 9th Cross the water connection is already provided by putting pipe lines.
22. Plaintiff has got examined his elder sister by name Smt. Kanthamma W/o. Puttaswamy R. in support of his case as PW.2 who has supported his case with regard to acquisition of suit schedule property by him by virtue of Will executed by his senior uncle by formation of road over B schedule property by defendants without any right whatsoever. In relevant portion of cross-examination PW.2 admits that the above Will is not registered and she has not signed it as a witness. The entire evidence of this witness is denied and it is suggested to her that though plaintiff has not acquired any title and possession over suit schedule property by virtue of above Will, she is deposing falsely to help the plaintiff.
28 OS.No.7776/201623. Thus on perusal of entire evidence on record it shows that the case of plaintiff is only based upon Ex.P.1 Will dated 06.02.2007 said to have been executed by his senior uncle Mallappa S/o. Mallappa.
24. During course of arguments, counsel for plaintiff has produced a scanned copy of judgment in OS.No.3358/2011 and argued that as per findings of said court on Issue No.1, it is proved that his uncle Mallappa S/o. Mallappa purchased Sy.No.41/9, new No.41/19 as per aforesaid Sale Deeds dated 18.01.1961 and Rectification Deed dated 01.01.1974. The relevant portion of the judgment is relied upon by him is culled out as under;
OS.No.3358/2011 between Sri. Manjunath V/s. Sri. Krishnappa and Others.
17. I have gone through the entire evidence on record. The plaintiff claims to be an absolute owner in possession of the A schedule property. The suit property originally owned by Sri.Mallappa, S/o Mallappa, he purchased the property under registered sale deed in the year 1961 and the rectification deed is executed in the year 1974 as there was a mistake in Survey number. It was mentioned that sy.No.42/10 instead of Survey Number-No.41/19. The plaintiff has produced the certified copy of the registered sale deed at Ex.P.1 and certified copy of the rectification deed is at Ex.P.2. The plaintiff has not produced originals of the sale deed and rectification deed. The typed copy of the sale deed 29 OS.No.7776/2016 is at Ex.P.1(a) and typed copy of the rectification deed is at Ex.P.2(a). In the rectification deed Ex.P.2 the survey number is mentioned as 41/9 an extent of 1 acres 3 guntas. The death certificate of Mallappa is marked at Ex.P.3. The revenue records produced by the plaintiff is in the name of deceased Mallappa in respect of Sy.No.41/19 an extent of 1 acre 3 guntas. According to the plaintiff there is an acquisition to the extent of land remaining is 14 guntas including 1 gunta of kharab land. His senior uncle Sri.Mallappa, S/o late Mallappa purchase the A schedule property in the year 1961. Therefore, I conclude the property in Sy. No.41/9 new number 41/19 is owned by deceased Mallappa.
18....... The certified copy of the Will dated 6.2.2007. The Will in question is an unregistered document bequeathing the suit property in favour of the plaintiff. The attesting witness PW4 stated he was present at the time of execution of the Will and Mallappa has signed the Will in his presence and in the presence of the other witness. The plaintiff has not examined the notary who has notarized Will at Ex.P.36 and advocate who has drafted the Will.
25. On the basis of above observation in said suit, counsel for plaintiff has argued that in said case plaintiff has discharged his liability of proving the Will and his consequential right over suit schedule property. However as rightly argued by counsel for defendant No.1 to 4, in said suit itself the V Addl. City Civil Court has answered following Issue No.2 with regard to bequest of above property in favour of plaintiff in the Negative.
30 OS.No.7776/2016Issue No.2 in OS.No.3358/2011
2. Whether the plaintiff to prove late Mallappa died testate leaving behind him his last Will dated 13.02.2007 bequeathing "A" schedule property in his favour ?
26. In para 19 of said judgment, the said court has specifically held that the Will in question is not proved as per procedure laid down in evidence act and as such present plaintiff has failed to prove that he is absolute owner of A Schedule property on the basis of said Will. Further the said copy of judgment dated 22.04.2016 clearly shows that the said suit filed by plaintiff seeking declaration with title and perpetual injunction very same schedule property of this suit, is dismissed. Further though counsel for plaintiff has argued that the same is pending under RFA.No.928/2015, absolutely no documents are produced in respect of said proceedings in order to establish his right over suit schedule property.
27. Further counsel for plaintiff has relied upon following case laws in respect of his title over suit schedule property and argued that the materials available on record and the aforesaid Will is sufficient to prove his title over suit schedule property and mere denial of his right by defendants does not help them in any manner to claim any 31 OS.No.7776/2016 right over disputed road. The relevant portion of case laws relied upon by plaintiff are culled out as under;
RSA No.1498/2005 between Krishnappa V/s. Sri. Ramegowda.
4. Defendant has filed detailed written statement denying all the material averments calling upon the plaintiffs strictly to prove the contents of the plaint. Accordingly to the defendant, his father had purchased the suit schedule land bearing Sy.No.50 measuring 2 acres 12 guntas of land from one Lalithareddy through a registered sale deed dated 23.11.1974 and that by oversight survey numbers had been wrongly mentioned as Sy.No.44, though the land was purchased by the father of the defendant. Necessary rectification was done by the Revenue Authorities is the averments.
15. Per contra, learned counsel for the respondent has argued that the first appellate Court has taken into consideration the fact that the boundaries prevail over survey number and extent and that the boundaries so mentioned in the sale deed do tally with the survey number No.50 and mentioning of wrong survey number No.44 does not take away the effect that execution of sale deed. Hence, he has requested to dismiss both the appeals.
20. Infact, Ex. D5 is the village map of Bendaganahalli, Bangarpet Taluk issued by the Assistant Director of land records, Kolar Sub - division, Bangarpet on 05.04.1999. Ex. D5 shows that Sy. No. 50 is bounded on the east by Rajakaluve, West by Sy. No. 49, North by Hosakote - Kadirenahalli boundary and South by Sy. No. 58 and Halla. This is a document prepared by the survey authorities at an undisputed point of time i.e., in the year 1953 and the copy issued by the authorities 32 OS.No.7776/2016 depicts the exact location of law in survey number with reference to boundaries. Therefore, the genuineness of Ex. D5 cannot be disputed. Boundaries in Ex. D5 - village map of Bendaganahalli relating to Sy. No. 50 tally in entirety with the boundaries mentioned in Ex. D1
- certified copy of the sale deed executed by Lalithareddy in favour of the father of Ramegowda in the year 1974. Sy. No. 41 is mentioned as Sy. No. 44 marked as Ex. D1. The boundaries so mentioned actually mentioned as Sy. No. 50.
22. In the case of Lakshmi Narasimha Shastry v. Mangesha Devaru (ILR 1988 KAR 554), this court has reiterated that the boundaries mentioned in the sale deed would be decisive in identifying the property and the actual extent of land. It is also held that the boundaries prevail over extent of land. In the case of B.K.A.P. CO-OPERATIVE SOCIETY v. GOVERNMENT OF PALESTINE & OTHERS reported in 1948 PC 207, it is held as follows:
'In construing a grant of land, description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as false demonstration.' The said decision is relied by the Madras High Court in the case of SIVISESHAMUTHU v. BALAKRISHNA reported in , AIR 1963 Madras 147 wherein it is held as follows:
'Where the property sold is part of a definite survey number and in the sale deed the exact boundaries of the part sold are given and the area mentioned is only approximate, the description by boundaries should prevail in ascertaining the actual property sold under the document.' 33 OS.No.7776/2016
23. In the instant case, the entire extent of land in Survey No. 50 is 2.11 acres inclusive of 4 guntas of kharab land. Therefore, mentioning of 1.12 acres in Ex. D1 cannot be found fault with.
24. On the other hand, the trial court has adopted wrong approach to the real state of affairs without looking to the pleadings of the plaintiffs. It is to be borne in mind that the vendor of both plaintiffs and defendants was one and the same and the evidence of DW2- husband of the vendor of the plaintiffs could not have been so lightly ignored. The initial burden cast on the plaintiff to prove their case is not effectively discharged and even the inadequacies, if any, found in the case of the defendants cannot be considered as advantageous to the plaintiffs.
RSA No.2504/2011 between Sri. Dilip Kumar and Others V/s. Sri. Shivashetty.
5. It is well settled that the boundaries of the property will prevail over the wrong description of survey number and extent. The boundaries of the property in occupation of the plaintiffs tally with the boundaries as shown in the sale deeds at Ex.P1 and P2. However, there is wrong mentioning of Sy.No. in the sale deeds at Ex.P1 and P2. Since the boundaries of the property will prevail over the wrong description of survey number and extent, the Courts below are justified in dismissing the suit of the plaintiffs.
AIR Himachal Pradesh 7 between Smt. Leela @ Bali Devi V/s. Smt. Drumti Devi.
Succession Act (39 of 1925), S.63, S.68 - Will - Validity - Testator had two daughters - Property bequeathed in favour of defendant-daughter who was living with him and looking after him - Evidence of witnesses proved that Will 34 OS.No.7776/2016 was scribed at instance of testator and duly signed by him in their presence - "Will" - Presence of beneficiary, at time of execution of Will would not show that undue influence was exercised - Merely because other daughter was disinherited, it was not in itself suspicious circumstance to doubt genuineness of Will - Will held to be valid.
10. It may be noticed that according to Section 63 of the Indian Succession Act. three things are necessary for valid executing of the Will :--
(1) It must be in writing;
(2) It must be duly signed by the testator; and (3) It must be duly attested by at least two witnesses.
11. It needs no emphasis that 11 is the duty of the prepounder of the Will to show, by satisfactory evidence, that, the Will has been executed by the testator as contemplated under Section 63 of the Act. The execution of the Will has to be proved within the parameters of Section 63 and the law requires strict, compliance of this provision. It is for the prepounder of the Will to prove by impeccable evidence that. :
(a) the Will was signed by the testator.
(b) the testator at the relevant time was in sound and disposing state of mind, and
(c) he understood the nature and effect of putting his signature on the document of his own free will,
12. Section 63(c) of the Indian Succession Act and Section 3 of the Transfer of Property Act though do not provide for a particular form of attestation but nonetheless, it is necessary, as required by Section 68 of the Indian Evidence Act, that at least one of the attesting witnesses should be examined to prove the 'due execution' of the Will. It is the duty of the propounder of the Will to prove from the witness 35 OS.No.7776/2016 (es) that the witness (es) saw the testator signing the Will and that they themselves signed the Will in the presence of the testator.
13. For a valid attestation of the Will, the following conditions must be specified ;
(a) The Will must be attested by at least two witnesses;
(b) Each of these :
(i) must either see the testator sign or affix his mark to the Will or must see some other person sign the Will in the presence and by the direction of the testator, or
(ii) must receive from the testator a personal acknowledgment of his signature or mark or of the signature of such other person.
(iii) Each of these must sign the Will.
(iv) They must sign in the presence of the testator.
14. If any of these four conditions is not satisfied, the attestation is bad and the Will invalid.
AIR 2003 Supreme Court 3109 between Ramabai Padmakar Patil (dead) by LRs and Others V/s. Rukminibai Vishnu Vekhande and Others.
(B) Succession Act (39 of 1925), S.63 - Evidence Act (1 of 1872), S.68 Proviso - Will - Genuineness - Proof - Examination of only one of attesting witness - No infirmity found in his testimony - Is sufficient to prove Will - Typist who only typed Will and was neither attesting witness nor testator put her thumb impression on Will in her presence - Her examination as witness was redundant - Mere non examination of advocate present at time of preparation and registration of Will - Not a ground to discard Will - Further no evidence adduced to show that testator was suffering 36 OS.No.7776/2016 from any ailment impairing her mental faculties - Genuineness of Will cannot be doubted.
9. The learned District Judge has observed that Smt. Yamunabai was very old when she executed the Will and she was hard of hearing and was unable to walk. He further observed that Chhaya Dighe who typed the Will and one Shri Tiwari, Advocate, who was present at the time of preparation and execution of the Will, were not examined and these facts together created a doubt regarding the authenticity of the Will. As discussed earlier, in view of Section 63 of Indian Succession Act the proviso to Section 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witness is examined to prove the Will. That this had been done in the present case by examining PW2 Raghunath Govind Sogale cannot be disputed. No infirmity of any kind had been found in the testimony of this witness. Chhaya Dighe merely typed the Will and she is not an attesting witness nor it is anybody's case that Smt. Yamunabai had put her thumb impression on the Will in her presence, therefore, her examination as a witness was wholly redundant. The mere non examination of the Advocate who was present at the time of preparation or registration of the Will cannot, by itself, be a ground to discard the same. The fact that Smt. Yamunabai was hard of hearing or that she was unable to walk does not lead to an inference that her mental faculties had been impaired or that she did not understand the contents of the document which she was executing. It is important to note that Smt. Yamunabai personally came to the office of the Sub- Registrar and her death took place after a considerable period i.e. 3 years and 9 months after the execution of the Will. No evidence has been adduced by the defendants to show that at the time of the execution of the Will she had been suffering from any such ailment which had impaired 37 OS.No.7776/2016 her mental faculties to such an extent that she was unable to understand the real nature of the document which she was executing. We are, therefore, clearly of the opinion that the finding recorded by the learned District Judge, which has been affirmed by the High Court in second appeal, is not based upon a correct application of legal principles governing the proof and acceptance of Will and the same is completely perverse. The aforesaid finding is accordingly set aside. The finding recorded by the trial Court that Will is genuine is hereby restored.
28. However as rightly argued by counsel for defendant, despite findings of various courts with regard to non-proving of the aforesaid Will by plaintiff to establish his title over aforesaid land bearing Sy.No.41/9, new No.41/19, plaintiff has not made any efforts to establish the above Will in present case either by examining any of the attesting witnesses nor to show that any of appellate courts have held that the Will relied upon by plaintiff is proved. Under such circumstances the very title of plaintiff over said property under above Will is clouded and as such his possession over A and B schedule property of the suit cannot be accepted. Further as already stated above, when the very title and possession of plaintiff over suit schedule property is in dispute, the plaintiff ought to have sought the relief of declaration of his title over suit schedule property and then to seek possession of the same.
38 OS.No.7776/201629. Hence as rightly argued by defendant side, when plaintiff has not established the core question of his right and title over disputed suit land, he cannot be permitted to seek further relief of possession, mandatory injunction much-less the relief of compensation as prayed for in the present suit. Further though it is argued by plaintiff side that defendants have not led any evidence to establish their right over disputed road and in support of their contentions and as such they are estopped from denying the title and possession of plaintiff over suit road. As a counter to said arguments, the counsel for defendants No.1 to 4 has relied upon following case laws and vehemently argued that plaintiff has to prove his case on his own strength without depending upon weakness of other side. The relevant portions are culled out as under;
2004 (1) KCCR 662 between K. Gopala Reddy (deceased) by LRs V/s. Suryanarayana and Others.
B. PLEADINGS AND PROOF - Whenever a party approaches the Court for a relief, based on the pleadings and issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party who approaches the Court, Weakness of the defendant cannot be considered as a trump card for the plaintiff.
13. Trial court without considering the pleadings of the parties and evidence let in by them, only considering the evidence of the defendant has decreed the suit in favour of the plaintiffs. The general principle of law is that whenever a party approaches the court for a relief, based on the 39 OS.No.7776/2016 pleadings and issues, he has to prove his case. But in the instant case, though the burden of proving the issues was on the plaintiffs, trial court has found fault with the defendant. In the present case, court has to hold whether the plaintiffs have title to the suit property or not. Defendant has not approached the court to grant a declaratory relief in his favour. Even though the documents in possession of the plaintiffs are not produced, trial court without drawing an adverse inference against the plaintiffs, has granted a decree in favour of the plaintiffs by relying upon the revenue entries even though such revenue entries are also not proved by the plaintiffs. Therefore, in the circumstances, it has to be held that the trial court has committed an error in decreeing the suit of the plaintiffs without considering the and the pleadings evidence.
14. Then this court has to consider whether the plaintiffs were in lawful possession of the property on the date of the suit to restrain the defendant from interfering with the "peaceful possession and enjoyment of his property.
AIR 2023 Supreme Court 379 between Smriti Debbarma (Dead) Through Legal Representative V/s. Prabha Ranjan Debbarma and Othres.
Specific Relief Act (47 of 1963), S.34 - Suit for declaration - Decree of possession - Cannot be passed in favour of the plaintiff on the ground that defendants unable to fully establish their right, title and interest in the property - Evidence Act (1 of 1872), S.101, S.102.
2024 (2) KCCR 1105 between Krishnappa V/s. Samanduru Grama Panchayathi Hobli.
B. PRACTICE AND PROCEDURE - Party approaching Court required to substantiate his case independently - He cannot bank on weakness of his opponent.
40 OS.No.7776/201610. On meticulous examination of the materials on record, it is clearly evident that the plaintiff's title over the suit schedule property is found to be doubtful. The property records, which are placed on record by both the parties, clearly reveal that the property was admittedly standing in the name of one Shombaiah. Though a feeble NC:
2023:KHC:39868 attempt is made by the plaintiff before this Court that Shombaiah is the father of Byrappa @ Gopala, however, during course of the arguments, the learned counsel appearing for the plaintiff further contended that the plaintiff's grand father's name is Shombaiah. Both the Courts referring to the title deeds have come to the conclusion that the plaintiff has failed to establish his vendor's title over the suit property. Both the Courts have also taken cognizance of the fact that the plaintiff has secured the rectification deed from the widow of original vendor. Based on the rectification deed, the plaintiff is now asserting title over the property No.39/3. If the sale by Byrappa @ Gopala in favour of the plaintiff at the first instance was in respect of the property bearing Khaneshmari No.40, then this Court is of the view that both Courts were justified in holding that the plaintiff has failed to substantiate his vendor's title over the suit property bearing Khaneshmari No.39/3. These concurrent findings and conclusions recorded by both the Courts is for want of cogent and clinching evidence at the hands of the plaintiff to substantiate his vendor's title over the suit schedule property. Both Courts have also taken cognizance of the dismissal of bare suit for injunction filed by defendant No.3. The present suit is a comprehensive suit seeking relief of declaration of title and injunction. It is a trite law that the party approaching the Court has to substantiate his case independently and cannot bank on the weakness of the defendants. If plaintiff is asserting title over the property in question, he is not only required to establish his independent title over 41 OS.No.7776/2016 the property in question but also he is required to establish the title of his vendor over the property in question. Since the property was admittedly standing in the name of Shombaiah, the property extracts produced before the both Courts does clearly establish that the property was never standing in the name of plaintiff's vendor. All these significant details are exhaustively and meticulously dealt by both the Courts while appreciating the evidence let in by the plaintiff and defendants. Therefore, I am of the view that no substantial question of law arises for consideration.
Civil Appeal No.4702/2004, D/-7-1-2014 between Union Of India V/s. Vasavi Co-op. Housing Society Ltd and Others.
(A)Specific Relief Act (47 of 1963), S.34 - Suit for declaration of title - Onus to prove his title is on plaintiff -
He cannot succeed on weakness of defendant's case.
30. The above case laws are well applicable to facts ad circumstances of this case. For these reasons it is incumbent upon this case to hold that plaintiff has failed to establish his right over the suit schedule properties by virtue of aforesaid Will. Further when the very title and possession of plaintiff over disputed suit schedule property is not established by him to the satisfaction of the court, question of challenging the act of defendants information of aforesaid road does not hold any water.
42 OS.No.7776/201631. Hence for the reasons elaborately stated in foregoing paras, the plaintiff has failed to prove his right, title and possession over suit schedule property by virtue of Will dated 06.02.2007. Hence Issue No.1 and 2 are answered in the Negative.
32. ADDL. ISSUE NO.1 DATED 01.06.2023:- It is specific case of plaintiff that defendants have highhandedly formed road and laid sewerage pipes in B schedule property during pendency of the suit. This aspect has been reiterated by plaintiff in his chief examination.
33. PW 1 has been subjected to cross examination on this aspect and in relevant portion of cross- examination by defendant No.1 to 4 side PW.1, denies that though Sy.No.41/09 is never converted as Sy.No.41/19, he has created aforesaid revenue documents. Further he admits that in WP.No.24325/2012, he was directed to prove his civil rights over suit schedule property, but denies that at the time of filing said writ itself, roads and drainage were already formed and for said reason he had filed the above writ.
34. Most importantly in page No.9 of his cross- examination, PW.1 admits that the buildings seen in Ex.P.23 photos were constructed in the year 2012 itself and the disputed road is being used by occupants of said 43 OS.No.7776/2016 building since 2012 itself. Further he asserts that they are using it by an act of encroachment. Further PW.1 has clearly admitted that a gray colour building seen in Ex.P.23 has been sold by him prior to filing of the suit and even holder of said building are using the above disputed road.
35. Thereafter quite contrary to his above admissions PW.1 again asserts that above road was formed by BBMP in the month of August 2017 and he directly filed suit without giving any complaint to higher officers of BBMP. It is suggested to him that as B schedule property is not a private property and as a public road is in existence in said property even prior to filing of the suit, BBMP is not liable to pay any compensation to him. It is further suggested to him that neither himself nor his senior uncle were having title and possession over suit schedule property and his uncle had no right to execute Ex.P.1 Will in his favour.
36. After production Ex.P.30 to 40 documents PW.1 is again subjected to further cross-examination wherein he has admitted that schedule of OS.No.5874/2014 and this case are one and the same. Further though he admits that he has filed OS.No.4368/2009 for possession of same property, he asserts that OS.No.8700/2006 is filed in 44 OS.No.7776/2016 respect of site No.54 of Gram Thana. He has further asserted that there are 8 encroachers in OS.No.49/9 and on confrontation of Ex.P.35 to 37 letters, he denies that CMC had formed road in the year 2012 itself. However, when said documents were addressed to Joint Commissioner in the year 2012 itself, question of formation of disputed road in the year 2017 does not arise and it raised doubt about case of plaintiff.
37. Further PW.1 is again confronted with Ex.P.30, copy of Sale Deed executed by him in favour of Lakshmi Devamma and he admits that he has mentioned the southern boundary of said site as road, but denies that he has not produced any documents in support of said road. He has clearly admitted that said Lakshmi Devamma is using road seen in Ex.22 photo and pleads ignorance as to who installed electricity pole on said road. Further though he asserts that BWSSB formed drainage on said road, he denies that it was formed by CMC itself.
38. Further in cross-examination by counsel for defendant No.5 and 6 PW.1 has denied suggestions that the above disputed road has been in existence since time immemorial and BWSSB has formed drainage on said road about 5-6 years back prior to filing of this suit. He has further denied that Ex.P.35 to 37 were not issued to 45 OS.No.7776/2016 defendant No.5 and 6 and photos produced by him belong to earlier years and he has filed false suit by creating the documents.
39. As already mentioned in foregoing paras the plaintiff has failed to establish his right, title and possession over suit schedule property by virtue of Will dated 06.02.2007. Further in aforesaid cross-examination PW.1 categorically admits that the houses seen in Ex.P.21 to 23 photos have been in existence since 2012 and inmates of said buildings have been using the disputed road since beginning. Further on confrontation of Ex.P.30 Sale Deed executed by plaintiff himself, he has clearly admitted that a road is shown at southern side of house of Lakshmi Devamma and she is using the same road, which is seen in Ex.P.22 photo. When plaintiff himself has sold said house by showing disputed road at the southern side of said road in the year 2008 itself, question of forming said road by defendants does not arise and it raises strong inference with regard to existence of said road much earlier to filing of present suit.
40. Further when plaintiff asserts his title over disputed land and when he admits sale of portion of certain land as site in such agriculture property, it is bounden duty to form layout with lawful permission of 46 OS.No.7776/2016 concerned authority by getting approval of layout plan. However in present case nothing is produced by plaintiff to show that he has taken such steps and he has surrendered any portion of land for civic amenities prior to selling it to third parties. Under such circumstances the conduct of plaintiff claiming compensation from civic authorities like defendants towards road which is already existence from time immemorial appears to be suspicious and it lacks bonafide intention of public good.
41. Further respondents have specifically asserted that above road has been formed by CMC itself even prior to taking over the suit schedule area by BBMP and in view of existence of said road since time immemorial, question of forming fresh road by BBMP much-less by respondents does not arise at all. Under such circumstances formation and construction of fresh road or laying of Sewarage pipeline by defendants during 1 st Week of August 2017 appears to be doubtful. Further except the oral allegation of violation, absolutely no documents are put-forth by plaintiff in order to prove that defendants have highhandedly formed aforesaid road with other amenities during 1st Week of August 2017 as alleged in the suit.
42. For these reasons absolutely there is no ground to believe that defendants have highhandedly formed 47 OS.No.7776/2016 aforesaid road and laid sewerage pipes in Item No.(a) and
(b) of B schedule property as claimed by plaintiff. Hence Addl. Issue No.1 dated 01.06.2023 is answered in the Negative.
43. ADDL. ISSUE NO.4 DATED 01.06.2023:- The defendants have taken specific contention that suit is not properly valued and court fee paid by plaintiff is insufficient. However though defendants have claimed that absolutely no agricultural land is existence in aforesaid Sy.No.41/9, New No.41/19, the documentary evidence produced by plaintiff sufficiently disclose that still said land is in the form of agricultural land. Under such circumstances the valuation of suit and court fee calculated by plaintiff in respect of suit schedule property under Section 24 B R/w Sec.7(2) of Karnataka Court Fees and Suit Valuation Act appears to be proper and correct. Hence the said contention of defendants do not hold any water and they have failed to prove the same to the satisfaction of the court. Hence Addl. Issue No.4 dated 01.06.2023 is answered in the Affirmative.
44. ISSUE NO.3 AND ADDL. ISSUE NO.2 AND 3DATED 01.06.2023:- Plaintiff failed to establish his right, title and possession over disputed suit schedule properties and he also failed to establish that defendants 48 OS.No.7776/2016 have highhandedly formed aforesaid road and laid sewerage pipes in item No.(a) and (b) of B schedule property as claimed by plaintiff.
45. Hence plaintiff is not entitled for any relief of declaration, mandatory injunction and he is also not entitled for alternative relief of compensation as prayed for in the suit. Hence Issue No.3, Addl. Issue No.2 and 3 dated 01.06.2023 are answered in the Negative.
46. ISSUE NO.4:- For the reasons stated and findings given on Issue No.1 to 3 and Addl. Issue No.1 to 4 dated 01.06.2023, the following is ;
ORDER The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Stenographer Gr.III directly on computer and typed by her, corrected, signed and then pronounced by me in the open court on this the 02nd day of May, 2025).
(Anand T. Chavan) LXI Addl. City Civil and Sessions Judge, Bengaluru.
49 OS.No.7776/2016ANNEXURE List of witnesses examined on behalf of Plaintiff's side :
PW.1 : Sri. Manjunatha K PW.2 : Smt. Kanthamma K
List of documents exhibited on behalf of Plaintiff's side :
Ex.P.1 : C/c of Will
Ex.P.2 : Death Certificate of Mallappa
Ex.P.3 : C/c of Sale Deed
Ex.P.3(a) : Signature of PW.1
Ex.P.4 : C/c of Rectification Deed
Ex.P.4(a) : Signature of PW.1
Ex.P.5 & : Two RTC Extracts
6
Ex.P.7 : Mutation Register Extract in the name
of PW.1
Ex.P.8 : RTC Extract in the name of PW.1
Ex.P.9 : C/c of notice issued by Survey
Department
Ex.P.10 : C/c of Mahazar drawn by Survey
Department
Ex.P.11 : C/c of Sketch issued by Survey
Department
Ex.P.12 : Notice issued by KIADB for acquisition
of 14 guntas
Ex.P.13 : C/c of sketch of 14 guntas acquisition
by KIADB
Ex.P.14 : C/c of Tax Paid Receipt
Ex.P.15 : Original Tax Paid Receipt
50 OS.No.7776/2016
Ex.P.16 : C/c of orders in W.P.No.24375/2012 Ex.P.17 : C/c of Village Map Ex.P.18 : 9 Photographs to 26 Ex.P.27 : One CD Ex.P.28 : Original receipt given by Photographer Ex.P.29 : Gazetted notification of January, 2019 Ex.P.30 : C/c of Sale Deed dated 05.08.2008 Ex.P.31 : Form A issued by Bruhath Bengaluru & 32 Mahanagara Palike Ex.P.33 : C/c of OS.No.5874/2014 Ex.P.34 : C/c of Chief Examination of Vajramuni K Ex.P.35 : 3 applications given to Joint to 37 Commissioner Ex.P.3(a) : Typed copy of Sale Deed Ex.P.38 : C/c of Order of Karnataka Industrial Development Board Ex.P.39 : C/c of Hissa Mojani and Land Note & 40 List of witnesses examined on behalf of Defendant's side :
NIL List of documents exhibited on behalf of Defendant's side:
NIL (ANAND T. CHAVAN) LXI Addl. City Civil and Sessions Judge, Bengaluru.