Bangalore District Court
M/S. S.S.Hospitals Pvt.Ltd vs Smt.Neelamba on 18 February, 2015
IN THE COURT OF XXII ADDL. CITY CIVIL &
SESSIONS JUDGE
BANGALORE (C.C.H.No.7)
Dated: This the 3rd Day of April 2014
Present: Sri.R.K.TALIKOTI , B.Com., LL.B.
(Spl.).,
XXII Addl.City Civil & Sessions
Judge.
Bangalore.
O.S.No. 8 7 2 /2008
c/w.
O.S.No. 5 0 0 /2008
Plaintiff M/s. S.S.Hospitals Pvt.Ltd.,
in O.S.No. A Company incorporated under the
872/2008: provisions of the Companies Act,
having its office at No.135, 4th Main,
Defence Colony, Indiranagar,
Bangalore - 38.
Represented by its Director
Dr.Shivashankar,
S/o. Sri.Rudramani,
Aged about 52 years.
by Sri.G.L. Vishwanath, Advocate.
Vs.
Defendants 1.Smt.Neelamba,
in O.S.No. W/o. Sri.G.R.Karisiddadevaru,
872/2008: Aged about 60 years,
2. Sri.Shivaprakash,
S/o. Sri.G.R.karisiddadevaru,
Aged about 33 years.
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O.S.No.9670/2005 c/w.
O.S.No.27145/2009
Both are r/a No.18, I Block,
K.H.B Colony, Lalbagh, Siddapura,
Jayanagar I Block, Bangalore -
560011.
D1 & D2-by Sri.N.Vageesh, Advocate
Plaintiff Smt.G.K.Neelamba,
in O.S.No. Aged about 60 years,
500/2008 W/o. late Sri.G.R.Karisiddadevaru,
R/at No.18, 1st Block, K.H.B.Colony,
Lalbagh, Siddapura, Jayanagar,
1st Block, Bangalore - 11.
Represented by her GPA Holder
G.K.Shivaprakash,
Aged about 33 years,
S/o. late Sri.G.R.Karisiddadevaru.
R/a No.18, 1st Block, K.H.B.Colony,
Lalbagh, Siddapura, Jayanagar,
1st Block, Bangalore - 11.
By Sri.N.Vageesh, Advocate.
Vs.
Defendant Dr.Shiva Shankar,
in O.S.No. Aged about 47 years,
500/2008 Father's name not known to the
plaintiff, Director - Division of Urology,
Manipal Hospital, Manipal Institute of
Nephrology & Urology, Airport Road,
Bangalore - 17.
By Sri.Vishwanath, Advocate.
Date of institution of suit
O.S.No.872/2008 30-01-2008
O.S.No.500/2008 16-01-2008
Nature of the suits: Permanent injunction and
O.S.No.872/2008 Mandatory injunction
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O.S.No.27145/2009
O.S.No.500/2008 Permanent injunction
Date of commencement of
recording of evidence:
O.S.No.872/2008 11-04-2012
O.S.No.500/2008 20-12-2008
Date on which Judgment 03-04-2014
was pronounced
Total duration Days Months Years
O.S.No.872/2008 03 02 06
O.S.No.500/2008 17 02 06
COMMON JUDGMENT
By Order dated 5-2-2008, O.S.No.872/2008
was withdrawn from C.C.H.No.32 and transferred to
this Court C.C.H.No.7, for disposal of the same with
O.S.No.500/2008. Evidence is let in both the cases
and arguments have been heard. The matter is
disposed of by Common Judgment.
2. O.S.No.872/2008 is filed by the
plaintiff-M/s.S.S.Hospitals Pvt. Ltd., represented by
its Director Dr.Shivashankar, praying to pass a
Judgment and Decree of permanent injunction
restraining defendants-Neelamba and
Shivaprakash, and their agents from obstructing
plaintiff's peaceful possession and enjoyment of suit
schedule property bearing New Municipal No.36,
Pipeline Road, Raghavendra Layout, measuring
70088.92 sq. ft. which was earlier a part of
Sy.No.87, Yeshwantpur, Bangalore, now under CTS
No.1422.
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O.S.No.27145/2009
The suit is also for mandatory injunction
directing the defendants and their agents to
remove the construction of two sheds put up on the
north-eastern portion of schedule property
measuring East to West 30 feet and North to South
56 x 72½ feet totally measuring 1920 square feet.,
claimed as property bearing No.17, Khatha PID
No.2-204-17, situated at 2nd Cross, Byanna
Layout, Yeshwanthapura, Bangalore.
O.S.No.500/2008 is filed by the
plaintiff-G.K.Neelamba, represented by her GPA
holder G.K.Shivananjaiah Prakash, praying to pass
a Judgment and Decree of permanent injunction
restraining the defendant-Dr.Shiva Shankar and his
agents from interfering with plaintiff's peaceful
possession and enjoyment of suit schedule property
bearing No.17, Khatha PID No.2-204-17, situated
at 2nd Cross, Byanna Layout, Yeshwanthpur,
Bangalore-22, measuring East to West 30 feet and
North to South (58 ft.+ 70 ft.) 2 feet, totally
measuring 1920 square feet.,
3. In brief, case of the plaintiff in O.S.No.
872/2008 is as under:
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O.S.No.27145/2009
The plaintiff is a Company incorporated under
the provisions of the Companies Act, 1956 and the
suit is filed by the Director, in terms of resolution
dated 29-1-2008.
The land Sy.No.87 measuring 2 acres 33
guntas was originally owned by Mr.Rangaiah and
others. They had acquired the said land in the
Judgment and Decree passed in O.S.No.49/1936-37
on the file of the Subordinate Judge, Bangalore,
and in Execution Proceedings No.97/1939-40. Said
Rangaiah and others had executed a sale deed
dated 2-1-1943 in favour of Muniswamy Naidu.
Said Muniswamy Naidu has in turn sold the 2 acres
33 guntas of land in Sy.No.87 in favour of
M/s.Mysore Plywood Corporation Limited,
Yeshwanthapur, which later on came to be known
as "M/s.Mafatlal Plywood Industries Limited.". Said
Mafatlal Industries has got converted the land
bearing Sy.No.87 and other lands totally measuring
7 acres 10 guntas of land into non-agricultural
industrial purpose in terms of OM dated 2-9-1998
bearing No.ALN.CR.(N46/88-89). Subsequently
modified corrigendum were issued on 16-11-1988
and 2-9-2003. Said non-agricultural piece of land
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was given Municipal No.8, Pipeline Road,
Raghavendra Layout Bangalore, Ward No.2,
Jalahalli.
Mafatlal Plywood Industries Limited was
absolute owner and possessor of property Municipal
No.8, measuring 77319 square feet, i.e., 1 acre 31
guntas of land in Sy.No.87 and the said property
was sold to the plaintiff herein under registered
sale deed dated 14-9-2005 and thus, plaintiff has
become the owner and possessor of the property.
Subsequent to the acquisition of the property
by the plaintiff-Company, Khatha of the property is
effected and a new Municipal No. 36, Pipeline Main
Road, Raghavendra Layout, for land measuring
77319 square feet is registered in the name of the
plaintiff. Thereafter taxes have been paid
accordingly. Khatha certificate and Khatha extract
are also in the name of the plaintiff.
The City of Bangalore being subjected to City
Survey between the years 1965 to 1970, the
property herein had been subjected to a survey and
the property was given City Survey number 1433.
Thus plaintiff is the holder of property No.36, i.e.,
CTS No.1433 in Sy.No.87.
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It is also averred that the plaintiff's vendor-
Mysore Commercial Union Limited, which later on
came to be known as Mafatlal Plywood Industries
Ltd., was the owner and possessor of 7 acres 10
guntas and 97-2/3rd of square yards in Sy.Nos.76,
80, 81/2, 87 and 105 of Yeshwanthapura Village. It
had sought for permission to convert the land for
non-agricultural purpose. Said application was
rejected by the Deputy Commissioner, which is
confirmed by the Karnataka Appellate Tribunal.
Being aggrieved there from Writ Petition in
No.1189/ 78 was filed before the Hon'ble High
Court wherein the matter was remanded back to
the Deputy Commissioner for reconsidering the
application by order dated 1-8-1984. Eventually
said extent of land was converted for
non-agricultural purpose vide order dated 2-9-1988
by the Deputy Commissioner in Order No. D.DIS
ALN CR [N] 46/88-89.
The plaintiff has also averred that pursuant to
the Government of Mysore Notification dated
8-12-1958 an extent of 476-2/3rd square yards
of land in Sy.No.87 was acquired for the purpose
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O.S.No.27145/2009
of laying 15 inches pipe line from Soladevanahalli.
An Award was passed on 24-3-1961. Thereafter
possession of the said land was taken. Similarly,
the Government of Mysore vide Notification dated
26-7-1961 acquired certain portion of land
belonging to the Mysore Commercial Union Limited
for location of the Loco Shed for Southern Railways
and an extent of 38 guntas in Sy.No.87 was taken
possession on 11-4-1962 and award was
passed on 6-6-1972 and the same was approved by
the Divisional Commissioner, Bangalore, in
proceedings in LAC No.66-83-86/61-62.
It is also the case of the plaintiff that out of
extent of 2 acres 33 guntas in land Sy.No.87 an
extent of 1 acre 2 guntas stood excluded and an
extent of 1 acre 31 guntas remained to the vendor
of the plaintiff and same was conveyed to the
plaintiff herein under the sale deed. The property
measures 77319 square feet. But, however, during
the City Survey, extent of land was mentioned as
6519.9 square meters to be in possession of the
plaintiff. Thus, the plaintiff is restricting the portion
of land to an extent of 70088.92 square feet. It is
averred that an extent of 7231 square feet has
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O.S.No.27145/2009
been encroached by the third party and plaintiff
reserves liberty to proceed against these persons.
On 14-1-2008 the defendants, along with their
men, tried to interfere in the possession of the
plaintiff's over the suit schedule property. Similarly,
on a day before filing the suit, in the morning, the
2nd defendant, together with 5 to 8 other
seemingly anti-social elements, had come to the
spot and at that time plaintiff's representative
Dr.Shivashankar was there and at the spot he
wanted to get the schedule property cleaned up
with a view to go for the construction of a pucca
compound wall around the schedule property. At
that time, defendants tried to trespass upon the
plaintiff's property. Therefore, the plaintiff being
lawful owners of the property, filed this suit for
injunction.
Thereafter, an amendment is carried out
seeking mandatory injunction seeking demolition of
some constructed portion in the property
mentioned in the prayer column.
4. The defendants in O.S.No.872/2008
have appeared through advocate and filed their
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written statement. In brief, the contention taken
up by the defendants No.1 and 2 is as under:
The entire plaint averments are all denied.
The sources of title pleaded by the plaintiff through
the earlier vendors are all denied. It is denied that
the land Sy.No.87 measuring 2 acres 33 guntas
was originally owned by Rangaiah and that it had
been sold in favour of Muniswamy Naidu. It is also
denied that the property was purchased by
M/s.Mysore Plywood Corporation Limited, which
later on came to be known as "M/s.Mafatlal
Plywood Industries Limited". The other averments
of the plaint that the property was converted as
non-agricultural purpose as mentioned in para No.5
of the plaint, etc, are denied. Other averment of
the plaint that the property was given Municipal
No.8, measuring 77319 square feet, i.e., 1 acre 31
guntas is also denied. It is also denied that the
BBMP has given a new Municipal No.36, Pipeline
Main Road, Raghaendra Layout, measuring 77319
square feet. The other averment of the plaint to the
effect that plaintiff is paying taxes and is in
possession of the property and thereafter the
property is now showing CTS No.1433 are all
denied. Further averments of the plaint that the
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O.S.No.27145/2009
property had been acquired through different
proceedings as mentioned in para 11 (a), (b) and
(c) are all denied. The averment of the plaint that
defendants have tried to trespass into the suit
schedule property, etc. are denied.
The defendants have contended that suit filed
by the plaintiff is not maintainable. The averment
that plaintiff has acquired property under sale deed
dated 14-9-2005 measuring 77319 square feet is
also denied. It is also further denied that as per the
City Survey Department bearing No. CTS 1433 the
area measures 70088.92 square feet. The property
is not properly described and the measurements
are inconsistent shown by the plaintiff in the
pleadings. The plaintiff is not able to explain as to
what happened to the remaining extent of land in
the property.
It is contended that a property bearing No.17,
2nd Cross, Byanna Layout, Yeshwanthapura,
Bangalore, measuring East to West 30 feet and
North to South (58 feet + 70 feet) 2 feet, totally
measuring to an extent of 1920 square feet, with
boundaries, towards:
East - Site No.18,
W est by sites bearing No.16 and 16A,
North by road and
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O.S.No.27145/2009
South by road,
was originally part and parcel of Sy.No.86/7 of
Yeswanthapur Village. The owners of the property
Byanna and his brothers have formed a private
layout and defendant No.1 has purchased the
above mentioned site under registered sale deed
dated 31-3-1980. He has paid betterment
charges. The taxes are also paid. The defendant
has put fencing around the site and is in possession
of the property.
It is contended that due to escalation of prices
in and around Bangalore City, there are some land
grabbers who have tried to take away the land. It
is contended that in this case plaintiff tried to
interfere in the possession of defendant's property
and therefore he had approached the police, but
the police did not take any action since the
plaintiffs are influential persons. It is also
contended that defendant No.1 wanted to appoint a
watchman to look after the property and therefore
has started construction of temporary watchman
shed on 13-1-2008 and thereafter
construction activities resumed on 14-1-2008 and
at that time, plaintiff's representative
Dr.Shivashankar, without having any right and
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O.S.No.27145/2009
interest over the property, came along with some
persons and obstructed defendant's construction.
With the help of workers and local people,
defendant was able to resist the plaintiff's actions
at that time. It is also contended that defendant
No.1 has already constructed the building to an
extent of 5 foot of construction.
The 1st defendant being a widow, is desirous
to have a house. But however the plaintiffs are
interfering in construction activity. The 1st
defendant is the absolute owner and possessor of
the property site No.17 as previously mentioned
and plaintiffs have no right over that property.
Court fee paid by the plaintiff is incorrect. The
prayer made by the plaintiff also cannot be
permitted. The plaintiff has not explained who are
the third persons who encroached on 77319 square
feet. In a suit for injunction, non-disclosure of facts
in relation to an abandoned land has a great scope
and importance. The plaintiff cannot get the relief
of injunction. Therefore, the suit of the plaintiff is
sought to be dismissed.
5. Suit O.S.No.500/2008 is filed by the 1st
defendant against plaintiff in O.S.No.872/2008
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O.S.No.27145/2009
seeking relief of permanent injunction. The claim
of plaintiffs in O.S.No.500/2008 is same as that as
narrated as defence to O.S.No.872/2008.
Similarly, the written statement filed in
O.S.No.500/2008 is the same as narrated in the
plaint of O.S.No.872/2008.
6. From the above pleadings following
Issues and Additional Issue are formulated by my
Learned Predecessors:
In O.S.No. 872/2008:
1. W hether plaintiff proves the description of suit
property?
2. W hether plaintiff proves title to the suit property?
3. W hether plaintiff proves that the defendants have
illegally put up constructions on suit property?
4. W hether plaintiff is entitled for the relief of
mandatory injunction sought for?
5. W hether plaintiff is entitled for the relief of
perpetual injunction sought for?
6. W hether suit is not maintainable?
7. W hether court fee paid is insufficient?
8. W hat decree or Order?
In O.S.No. 500/2008:
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O.S.No.27145/2009
1. W hether the plaintiff proves that she is in lawful
possession of the suit schedule property as owner
as claimed in the plaint?
2. W hether the plaintiff proves that the defendant
tried to interfere with her peaceful possession and
enjoyment?
3. W hether the plaintiff is entitled for the relief of
permanent injunction?
4. W hat Decree or Order?
Additional Issue framed on 4-1-2009:
5. W hether the plaintiff proves the identity of suit
property as described by her?
7. In O.S.No. 872/2008 Dr.Shivashankar,
Director of plaintiff Hospital, is examined as P.W.1
and documents at Exs.P1 to P23 are marked.
In the cross-examination of D.W.1, his
cross-examination and chief-examination in O.S.No.
500/2008 are marked as Exs.P24 and P25.
In the cross-examination of P.W.1, documents
at Exs.D1 to D10 are confronted.
2nd defendant is examined as D.W.1 and
documents at Exs.D11 to D32 are marked.
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O.S.No.27145/2009
D.Lokesh, Engineer, Consultant and Approved
Valuer is examined as D.W.2 and Exs.D34 and D35
are marked.
M.Kempaiah, A.E.E., BWSSB, is examined as
D.W.3 and a document is marked as Ex.D36.
K.V.Rudresh, DDLR, Bangalore, is examined
as CW1 and Exs.C1 to C15 are marked.
In O.S.No.500/2008 G.K.Shivaprakash is
examined as P.W.1 and documents at Exs.P1 to
P36 and P43 to P45 are marked and Ex.P46 is
marked in the cross-examination of D.W.1.
A witness - Krishnappa is examined as P.W.2
and documents at Ex.P37, P39 to P42 are marked.
A witness - Periswamy is examined as P.W.3
and Ex.P38 is marked.
In the cross-examination of P.W.1, documents
at Exs.D1 to D7 are marked.
The defendant -Dr.Shivashankar is examined
as D.W.1 and Exs.D8 to D30 are marked.
8. Heard Arguments canvassed on behalf of
the parties in both the suits.
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Learned Counsel for the defendants in
O.S.No.872/2008 has submitted following citations:
1. (1995) 1 SCC 295 {State of Karnataka vs. Shankara
Textiles Mills Ltd.}
2. 2014 S.A.R (Civil) 191 {Union of India & ors. vs.
Vasavi Co.op. Housing Society Ltd. & ors}
3. AIR 2007 SC 900 {Ramji Rai and anr. Vs. Mallah
(Dead) through L.Rs. & anr.}
4. ILR 2008 Kar. 1170 {Gurunath Manohar Pavaskar &
ors. vs. Nagesh Siddappa Navalgund & ors}
5. ILR 2007 Kar. 339 {Sri Aralappa vs. Sri. Jagannath &
ors}
6. ILR 2005 Kar. 884 {T.L.Nagendra Babu vs. Manohar
Rao Pawar}
7. 2012 (1) AIR Kar R 485 {Channabasappa vs.
Safoorabi & anr.}
8. 2009(4) KAR LJ 545 (SC) {V.Srinivasaraju & ors. Vs.
Bharat Electronics Ltd. & ors.}
9. AIR 2004 NOC 439 (Mad) {V.Vaithinatha Gowndar
vs. Kasthuribai Ammal & anr.}
10. AIR 2005 Kar. 419 {Putlabai vs. Vaijnath & ors.}
11. AIR 1998 Orissa 117 {Sankar Kumar & anr. Vs.
Mohanlal Sharma}
12. AIR 1995 Allahabad 418 {Sri Sasnam Naga Sanyasi
& anr. Vs. Allahabad Development Authority}
18
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
13. AIR 1963 Punjab 393 {Ram Murti & ors. Vs. Puran
Singh s/o.Attra Singh & anr.}
14. AIR 2008 SC 2033 {Anathula Sudhakar vs. P.Buchi
Reddy (Dead) by L.Rs. & ors.}
15. AIR 2008 SC 901 {Gurunath Manohar Pavaskar &
ors. Vs. Nagesh Siddappa Navalgund & Ors.}
16. ILR 1999 KAR 4336 {Smt.N.Savithramma & ors. Vs.
Dr.B.N.Sheshadri}
17. 2009(1) KCCR 753 {Khaja Bee vs. Jamia Majeed}
18. AIR 2007 Patna 120 {Harendra Rai & ors. Vs.
Chandrawati Devi & ors.}
19. (2001) 2 SCC 762 {Lekh Raj vs. Muni Lal & ors}
20. AIR 1939 Privy Council 143 {Nana Akpandja Vs.
Fiaga Egblomesse}
21. 1956 SC 593 ((S) AIR V 43 C 103 Oct) {Nagubai
Ammal & ors. Vs. B.Shama Rao & ors}
22. AIR 1966 SC 735 (V 53 C 139) {Bhagwati Prasad vs.
Chandramaul}
23. AIR 1938 PC 103 {Martin Cashin & ors. Vs. Peter J.
Cashin}
24. AIR 1972 Mad. 192 {Natarajan Asari vs. Pichamuthu
Asari}
25. AIR 1978 SC 941 {Yeshwantrao Laxmanarao Ghatge
& anr. V. Baburao Bala Yadav (dead) by LR's.}
26. AIR 1962 Mys. 44 (V 49 C 19) {Doddamallappa
Channabasappa Kari vs. Gangappa Shiddappa
Gulganji & ors.}
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O.S.No.27145/2009
27. AIR 1974 Raj. 144 {Narain Dass vs. Atma Ram & ors.
}
28. AIR 1995 Kar. 1328 {Tulasamma vs. Srinivasan}
29. AIR 1968 SC 1083 (V 55 C 212) {Mrs. Om Prabhu
Jain vs. Abnash Chand & anr.}
In Reply, Learned Counsel for the plaintiff in
O.S.No.872/2008 has relied upon a decision
reported in AIR 1987 SC 1242 {Ram Sarup Gupta
(dead) by LRs. vs. Bishun Narain Inter College and
others}
9. On appreciation of the pleadings, oral
and documentary evidence placed on record and on
the basis of the arguments canvassed on behalf of
the parties and on perusal of citations relied upon
by Learned Counsel for defendants in
O.S.No.872/2008, my answer to above
Issues and Additional Issue are as under:
In O.S.No. 872/2008:
Issue No.1 - in the Negative;
Issue No.2 - in the Affirmative;
Issue No.3 - in the Negative;
Issue No.4 - in the Negative;
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O.S.No.27145/2009
Issue No.5 - in the Negative;
Issue No.6 - in the Negative;
Issue No.7 - in the Negative;
Issue No.8 - as per Final Order below;
In O.S.No. 500 / 2008 :
Issue No.1 - in the Affirmative;
Issue No.2 - in the Affirmative;
Issue No.3 - in the Affirmative;
Issue No.4 -as per Final Order below:
Addl. Issue No.5 - in the Affirmative;
for the following:
Reasons
10. Issue No. 2 in O.S.No.872/2008:
The plaintiff is a Company under the name
and style of "M/s. S.S.Hospitals Pvt.Ltd.,"
represented by its Director Dr.Shivashankar. The
suit was initially filed for permanent injunction to
restrain the defendants from obstructing the
plaintiff in peaceful possession and enjoyment of
suit schedule property bearing Municipal No.36,
Pipeline Road, Raghavendra Layout, Jalahalli,
Bangalore, measuring 7008.92 square feet, with
the boundaries as mentioned in the schedule.
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During the pendency of this suit, the plaintiff
has further incorporated the pleading and has
prayed for granting mandatory injunction directing
the defendants to remove the construction of two
sheds put on the north eastern portion in the
schedule property measuring East to West 30 feet
and North to South 56x72½ feet, totally measuring
1920 square feet identified s per pleading of
defendant, by property No.17, Khatha PID
No.2-204-17, situated at Byanna Layout,
Bangalore.
11. It is the case of the plaintiff that it has
purchased 1 acre 31 guntas of land from M/s.
Mysore Plywood Corporation Limited,
Yeshwanthpur, which later came to be changed as
M/s.Mafatlal Plywood Industries Limited, under
registered sale deed dated 14-9-2005. The
property is bearing Municipal No.8, measuring
77319 square feet. It is the further case of the
plaintiff that the said property was earlier owned by
M.Rangaiah and the extent of land Sy.No.37 was 2
acre 33 guntas out of the said land. Thereafter
Rangaiah has sold the property to Muniswamy
Naidu and in turn Muniswamy Naidu has sold the
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O.S.No.27145/2009
property to M/s. Mysore Plywood Corporation
Limited. Thus the plaintiff is seeking his source of
title from the earlier three vendors.
12. To substantiate the contention, plaintiff's
Director Dr.Shivashankar is examined as P.W.1 in
O.S.No.872/2008 and he is also examined as D.W.1
in O.S.No.500/2008 for the relief of injunction. The
plaintiff has stated in the evidence about the
acquisition of title by the plaintiff-Company and has
stated that the earlier owner M/s. M/s.Mafatlal
Plywood Industries Limited has sold the suit
property measuring 77319 square feet. He has
further stated that the said property was subjected
to City Survey Department and in the survey, the
extent of land in possession was stated to be
6519.9 square feet which works out to 70088.92
square feet. Thus the plaintiff has restricted his
claim to 70088.92 square feet of area.
13. In support of the evidence, plaintiff has
produced number of documents. The primary
documents relied upon by the plaintiff is the sale
deed dated 2-1-1943 wherein Rangaiah has sold
the property to Muniswamy Naidu. The property
sold is bearing Sy.No.87 measuring 2 acre 33
guntas.
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Similarly, the plaintiff has produced another
sale deed at Ex.P2. Said sale deed is executed on
16-7-1943 in favour of Mysore Plywood Corporation
Pvt. Ltd. by Muniswamy Naidu. The property sold
therein is land Sy.No.87 measuring 2 acres 33
guntas and some other lands.
Further the plaintiff has produced it own sale
deed at Ex.P3. Said sale deed is dated 14-9-2005
and it is executed by M/s.Mafatlal Plywood
Industries Limited in favour of S.S.Hospitals (Pvt.)
Ltd. The sale deed is executed by authorized
Director Mr.Rajesh B.Chand. Under this sale deed
property bearing Municipal No.8, Old No.2, situated
at Raghavendra Colony, measuring 77,319 square
feet is sold. The survey number is mentioned as
"87". Further, sale deed also mentions that the
said property is converted land vide Official
Memorandum No. ALN/CR (N) 46-88-89 dated
2-9-1988, by the Special Deputy Commissioner,
Bangalore District. The property is also described
through its boundaries:
East by -others property (Eswarappa Layout,
W est by Cross Road and others property,
North by others property (Railway Compound)
24
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
South by Pipeline Road.
A sketch is also attached to the said sale deed
which reflects the land sold under sale deed and
identified by letters "A, B, C and D" for Sy.No.87.
It is also the case of the plaintiff that after
purchase of the property, the name of the
Company is mutated to the property and new
number 36 is given by the BBMP to substantiate
the said fact. The plaintiff has produced the
revenue records of BBMP at Ex.P4, which states
that the property is entered in the name of
S.S.Hospitals, Particulars are relating to the taxes
to be paid, etc. are mentioned. Further the charges
paid relating to said property is produced at Ex.P5,
which reflects an amount of Rs.4,29,460-00 is paid
by the S.S.Hospitals (Pvt.) Ltd. So also, an amount
of Rs.3,99,750/- is said to be paid towards the
property, as per Ex.P6. The documents are issued
by BBMP. Similarly, Exs.P7, P8 and P9 are all tax
paid receipts. Thereafter, the plaintiff has also
produced the other receipts and acknowledgments
issued by BBMP through its agency. They are
produced at Exs.P10 and P11.
25
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
Most important document for the plaintiff is
produced at Ex.P12. The said document reflects
that the new No.36 is registered in the name of
kathedar - S.S.Hospitals.
Similarly, Khatha extract is at Ex.P13 and it
stands in the name of plaintiff. The extent of land is
shown as 77319 square feet. City Survey
document is produced at Ex.P14. Said document is
CTS No.1433 and the extent of land is shown as
"6519.9" and it was standing in the name of The
Mafatlal Plywood Industries Limited. It may be
noted that based on this document, the plaintiff has
restricted its extent of land to 70088.92 square
feet.
The plaintiff has also produced the City
Survey Register at Ex.P16. This document will
reveal that land Sy.No.87 is converted by the order
of the Deputy Commissioner as per the order
number mentioned therein. Further the sketch
prepared by the City Survey Department is
produced at Exs.P17 and P18.
14. The Learned Counsel for the plaintiff has
submitted that the documents placed by the
plaintiff-Company sufficiently establish that the
property is purchased from its previous vendors
26
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
who were in possession of the property and
thereafter the plaintiff is in possession of the
property by constructing a compound around it. It
is submitted that the defendant has not placed any
materials to show the source of title of his vendor
and as such the defence of the defendant should
not be accepted.
15. The defendant, while resisting the suit
O.S.No. 872/2008 has filed O.S.No.500/2008 by
stating that Smt.G.K.Neelamba has purchased site
No.17 in Byanna Layout and the properties are
mutated in her name. The taxes are paid and the
property was bounded by fence for the purpose of
protecting it. The suit is filed by stating that on
14-1-2008 the defendant therein, viz.,
Dr.Shivashankar, with some persons, tried to
interfere in the property.
In this regard the Power of Attorney Holder of
Smt.G.K.Neelamba, who is also defendant No.2 in
O.S.No.872/2008, has been examined as D.W.1. He
is none other than the son of Smt.G.K.Neelamba.
He has stated that site No.17 is purchased by his
mother on 13-3-1980 from its vendors and they are
in possession of the suit schedule property.
27
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
16. In support of their case, they have
produced the G.P.A. executed by the plaintiff in
favour of her son. The certified copy of sale deed
dated 31-3-1980 wherein site No.17 is sold by
T.V.Byanna as a Power of Attorney Holder of the
owners for a sum of Rs.2,000/-. It is stated that a
portion of property is handed over. The property is
described as bounded towards:
East by - site No.18,
W est by - site No.16 and 16A,
North by -road and
South by - road.
The property measurement is also given as
East to West 30 feet and North to South (58+70) 2
feet.
The defendants have also produced the
Assessment record, i.e., tax paid record dated
8-5-2002. Under this document an amount of
Rs.5,938/- is paid towards tax. The betterment
charges of Rs.10670/- is paid at Ex.P4. Similarly,
BBMP Khatha certificate standing in the name of
H.G.Neelambika is at Ex.P5. The property number
is mentioned as New No.17, extent of site is shown
as 1920. Similarly, Khatha certificate is at Ex.P6.
28
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
Apart from that, the plaintiff in O.S.No.
500/2008 has also produced several photographs
and negatives, showing different situations wherein
the plaintiff is said to have put up compound
structure up to 5 feet. Said photographs also reflect
certain property of defendant i.e., S.S.Hospital. The
tax paid receipt is also produced.
17. P.W.1 has stated that Mysore
Commercial Union Ltd. was the owner of 7 acre 10
guntas of land and 97 2/3rd square yards in
Sy.Nos. 76, 80, 81/2, 87 and 105 of Yeshwantpur
Village. The Deputy Commissioner had rejected the
application of Company for conversion of land. The
said order was confirmed by the Karnataka
Appellate Tribunal. In turn the Company preferred
W.P. No.1189/78 wherein an order was passed
directing the Deputy Commissioner to reconsider
the application. Eventually the extent of lands was
converted for on-agricultural purpose vide Order
dated 2-9-1988 by the Deputy Commissioner, in
order No.D.DIS ALN CR (N) 46/88-89.
The plaintiff has produced the copy of order
passed by the Hon'ble High Court in W.P.
29
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
No.1189/78 at Ex.P21 where there is direction to
the Deputy Commissioner to reconsider the
application.
18. The Learned Counsel appearing for
defendant in O.S.No.872/2008 submitted that
Company cannot hold agricultural land from
effective date 1-3-1974 in view of provisions
contained in Karnataka Land Reforms Act, 1961. It
was submitted that land vested in Government on
1-3-1974. The conversion order relied by plaintiff
Company is not conversion of land in the eye of law
and as such no right flow to plaintiff in respect of
land Sy.No.87 suit schedule property.
In support of his arguments, learned Advocate
placed reliance on decision reported in 1995 (1)
SCC 295 {State of Karnataka. vs. Shankara Textiles
Mills Ltd.}, wherein Head Note A and B reads as
under:
"A. Tenancy and Land Laws- Karnataka
Land Revenue Act, 1964 (12 of 1964) - Ss.95(2) (as it
then stood) and 83 - Conversion of agricultural land into
non-agricultural land- Requirement of prior permission
under S.95(2), held, mandatory - Hence, in absence of
such permission mere non-user of the land for
agricultural purposes or purposes subservient thereto or
user for non-agricultural purpose would not have the
effect of converting the land into non-agricultural land -
30
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
More so where the land-owner company had itself,
declaring under S.79-B(2)(a) of the Land Reforms Act
that the land was agricultural land, sought under
S.81(1)(b)(ii) exemption from the provisions of S.79-B
on the ground of the land being mortgaged to a financial
institution - Karnataka Land Reforms Act, 1961 (10 of
1962), Ss. 2(18), 79-B and 81(1)(b)(ii).
B. Tenancy and Land Laws-Karnataka Land
Reforms Act, 1961 (10 of 1962) - Ss.79-B (3), 79-A,
79-C, 80, 81, 15(6), 44(1), 67(3), 68, 71(3) and 79-A(5)
-Date of vesting of the land in State Government under
S.79-B(3), held, is the date on which that provision came
into operation (i.e. 1-3-1974) irrespective of the date of
the Deputy Commissioner's notification of the
vesting-Ss.79-A, 79-B, 79-C, 80 and 81 taken into
consideration to reach this conclusion and difference
between the wordings of S.79-B(3) on the one hand and
Ss.15(6), 44(1), 67(3), 68, 71(3) and 79(5) on the other
pointed out."
19. Learned Counsel for plaintiff submitted
that conversion order is mentioned in sale deed of
plaintiff and in CTS records. It was also submitted
that the land has come within BBMP limits and
there is valid conversion of land which was already
in occupation by M/s.Mafatlal Plywood Pvt. Industries
Ltd.
Learned Counsel further made distinction
regarding decision in 1995(1) SCC 295 which states
about seeking further permission under Section 95
of Karnataka Land Revenue Act. It is submitted that
31
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
there is conversion order and it is reflected in many
documents and therefore the said decision cannot
be made applicable.
20. Much was urged by defendant's side on
this point stating that relevant orders are not
produced. In my view the arguments of advocate
for defendants do not hold good because in this suit
for mandatory injunction and permanent injunction
the plaintiff has produced number of documents,
right from the day when Rangaiah sold property to
Munisamy Naidu till the purchase of property by
plaintiff.
21. Ex.P3 is the sale deed of plaintiff and it
reflects flow of title in favour of plaintiff company.
The conversion order is mentioned as No.
ALN/CR(N) 46/88-89 dated 2-9-1988 and
corrigendum bearing
No.B.DIS/ALN/CR/(N)/252/77-79 dated 2-9-2003
issued by the Special Deputy Commissioner,
Bangalore District. The Khatha is effected in
plaintiff's name in BBMP records. Further in the
documents relied on by defendant the property
belonging to M/s.Mafatlal Plywood Industries Ltd. is
mentioned as adjacent property.
32
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
Further in the cross-examination to P.W.1 at
page No.8, it is suggested to Dr.Shivashankar as
"it is true to suggest that after purchasing the lands in 4
survey numbers as per Ex.P2 my vendor got those lands
converted for non agricultural purposes."
By this suggestion, there is clear admission of
defendants that land of plaintiff is converted land.
Further there is no specific contention taken by
defendant that land is still agricultural land and
plaintiff has not derived title. The pleading of both
parties are concentrated on situation of disputed
property and whether that place where defendant
has put up some structure belongs to defendant or
to plaintiff. Thus contention of defendant that land
is not converted and plaintiff does not derive any
title from its sale deed cannot be accepted.
22. One another point urged by defendants'
side is, the plaintiff has not sought for declaration
of title to property including the disputed portion
and therefore no order of mandatory injunction to
demolish the structure can be made. It is
submitted that in absence of a declaration that
disputed area belong to plaintiff, the plaintiff is not
33
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
entitled to releifs claimed. Learned Counsel for
plaintiff has relied upon various decisions.
23. The Learned Counsel for plaintiff
submitted that the structure was put up by
defendant when the dispute started and the relief is
amended. The plaintiff can very well maintain the
suit in the form and property of plaintiff is clearly
identified by the Commissioner who has reported
the same in his report. Further it is submitted that
court has raised issue of title, parties have lead
evidence and now it cannot be said that declaration
relief has to be made.
24. Learned Counsel for defendant has
placed reliance on decision reported in 2014 SAR
Civil 19 which lays down that in suit for declaration
of title and possession the burden is always on
plaintiff and weakness any of defendant cannot be
ground for proof of plaintiff's case.
In the decision reported in AIR 2007 SC page
900 Ramji Rai's case, wherein it is laid that when
plaintiff fails to prove possession over property, suit
has to be dismissed and declaration regarding title
is unwarranted.
34
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
In the decision reported in ILR 2008 Kar. 1170
{Gurunath Manohar Pavaskar vs. Nagesh Siddappa
Navalgund} Head Note (A) reads as under:
" (A) Specific Relief Act (47 of 1963), Section 38 -
Suit for permanent injunction - Directing
defendants to demolish construction made on
encroached land and handover vacant possession
- Suit allowed on basis of entries in Revenue
records - Decree for permanent injunction in
mandatory form passed without deciding title of
plaintiff - Is improper."
In decision reported in ILR 2007 Kar. 339 {Sri
Aralappa vs. Sri Jagannath & Ors}, it is laid down that
when plaintiff is not in possession of property and does
not seek relief of possession, a mere suit for declaration
is not maintainable.
25. The decisions relied supra by counsel for
defendants are not helpful to defendants, because,
there is an issue of title which cast burden on
plaintiff and both parties have adduced evidence
exhaustively. There is no hurdle to go into the issue
relating to title.
The documents placed by plaintiff at Exs.P1
and P2 prove the source of title to plaintiff and as
35
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
per Ex.P3-registered sale deed dated 14-9-2005,
plaintiff-Company has acquired title to property
purchased therein. Hence, Issue No.2 in
O.S.No.872/2008 is held in Affirmative.
26. Issue No.1 in O.S.No.872/2008:
The plaintiff has submitted that suit property
in O.S.No.872/08 as Municipal No.36, Pipeline
Road, Raghavendra Layout, measuring 70888.92
sq. ft. bounded on East by remaining land of
Sy.No.87 (encroached portion) West by cross road
and pipeline road, North by Railway compound, CTS
No.1420 and 1422, South by land Sy.No.88 and 89.
For proof of the description of property, P.W.1
has stated in his evidence about the measurement
of property as 790,088.92 sq. ft. as CTS No.1433.
The plaintiff has produced the CTS records at
Ex.P14. It states that CTS No.1433 measures
6519.9, i.e. 70.888.92 sq. ft. The sketches of
property are produced at Ex.P17 and P18.
In the evidence, P.W.1 - Dr.Shivashankar, in
para No.29 has stated that his property measures
77,319 sq. ft. but 7000 and odd square feet is
encroached. He has further stated that 38 guntas of
land is acquired for loco shed and approximately
36
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
487 square yard is acquired for pipeline in
Sy.No.87. The Commissioner CW1 has stated
about land being acquired for loco shed and
pipeline.
27. The Learned Counsel for plaintiff
submitted that in fact plaintiff has purchased
property measuring 77319 sq. feet and Ex.P13
reflects the same. It was further submitted that
after acquisition of property 1 acre 31 gunta was
left in Sy.No.87 and it is purchased by plaintiff. It
was submitted that since CTS records reveal that
CTS No.1433 measures 700088.92 sq. ft. the relief
is restricted to the said area.
28. The Learned Counsel appearing for
defendant submitted that plaintiff is not clear about
the extent of schedule property. It was submitted
that when P.W.1 says that about 7000 sq. ft. area
is encroached, unless the particulars of encroached
area given, the description given by plaintiff cannot
be accepted. It was argued that boundary of
property and alleged encroachment of plaintiff by
defendant is not properly described. Learned
Counsel for plaintiff replied that when plaintiff is
owner and possessor of larger extent and proved
37
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
by Commissioner report, the property of defendant
will be bounded by remaining portion of Sy.No.87
and therefore the properties are properly described.
It was further submitted that situation of land
shown in Ex.P18 - sketch, will reflect that property
is tilted towards North-Eastern direction and
boundaries have to be read in reference to the
situation of property.
Ex.P22 is the Re-survey Settlement Akarband
of property of Yeshwantpur Vilage, Sy.No.87. Land
is shown with measurement 2 acres 33 guntas.
There is an argument on behalf of defendant that
earlier RTC of Sy.No.87 is not produced. But this
document- Ex.P22, is an answer to the argument. It
is submitted by counsel for plaintiff that P.W.1 has
clearly given measurement of property. In an
undisputed point of time, in sale deed dated
2-1-1943 executed by Rangaiah in favour of
Muniswamy Naidu, the extent of land Sy.No.87 is
shown measuring 2 acres 33 guntas. Similarly,
Ex.P2 sale deed dated 16-7-1943 also reflects the
measurement of Sy.No.87 as "2 acres 33 guntas".
From these materials it is held that plaintiff has
38
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
proved that earlier measurement of land of
Sy.No.87 is 2 acres 33 guntas.
29. It is argued on behalf of plaintiff that the
sale deed measurement CTS records and
Commissioner sketch and evidence clearly
establishes that defendant in O.S.No.872/2008 is
asserting right on a portion of property belonging to
plaintiff. It was submitted that when the
construction of defendant is within area of plaintiff,
the plaintiff is automatically entitled to relief sought
without going to the technicalities of boundary of
encroached portion. It is submitted that defendant
has not produced proper title deeds to her
property, there is no document to show how the
vendor of defendant has got the property, there is
no approved plan of layout and defendants are
unaware as to situation of their property and for
that reason false claim is made in property of
plaintiff. It was further submitted that defendants'
name to revenue records or BBMP records is
reflected for recent years and there are earlier
records to prove their possession.
30. The Learned Counsel for defendant, with
regard to correction of measurements and identity
39
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
of property has placed reliance on decision reported
in ILR 2005 Kar. 884 (T.L.Nagendra Babu vs. Manohar
Rao Pawar), wherein Head Note (C) reads as under:
"(C) Suit for declaration and injunction -
Requirement of evidence -Duty of the Court -
Held - Unless the Court is satisfied with regard to
material details in the light of the material evidence
with regard to the identification of the property, no
declaration and injunction can be granted."
In the decision reported in 2012 AIR Kar. 485
{Channabasappa vs. Safoorabi), Head Note reads as
under:
"Specific Relief Act (47 of 1963), S.39 - Suit for
mandatory injunction - Maintainability - Sale deed
executed between plaintiff and defendants -
Dispute regarding construction and correct
measurements of schedule property - In such
case declaration with regard to correct
measurement is necessary - W ithout seeking such
declaration suit for mandatory injunction seeking
demolition of house of defendant not maintainable."
The decision reported in AIR 2004 NOC 439 is
regarding the property in dispute was found in
possession of defendant therein and plaintiff was
not entitled to any relief.
In ILR 1999 Kar. 4336 {Smt.N.Savitramma and
others vs. Dr. B.N.Sheshadri}, it is laid down that
40
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
Dictum "Boundaries shall prevail over the
Measurements" theory should be applied to make
marginal adjustments and not extent of giving undue
advantage to the person who claims to have purchased
under boundaries enclosing larger extent.
31. The counsel for defendant relating to
pleadings submitted that plaint does not give clear
pleading and particulars of plaintiff's property and
alleged encroachment made by defendant.
In this regard reliance is placed on decision of
Hon'ble Supreme Court reported in AIR 1966 SC
page 735. It was submitted that plaintiff cannot
make claim with evidence not covered under
pleadings.
32. The Learned Counsel for plaintiff has
submitted arguments and pointed out how these
rulings cannot be made applicable to facts of case.
Learned Counsel for plaintiff has relied on a
decision reported in AIR 1987 SC 1242 {Ram Sarup
Gupta (dead) by LRs. vs. Bishun Narain Inter College
and others}, wherein Head Note {A} reads as
under:
41
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
"[A] Civil P.C. (5 of 1908), O.6 R.1 -
Pleading - Object and purpose - Question about
lack of pleadings - It is not desirable to place
undue emphasis on form: instead, substance of
pleadings should be considered."
33. As far as pleading in the plaint is
concerned, it can be made out that plaintiff is
seeking relief of injunction restraining the
defendant from making any construction on its
property. Further, it can also be seen that plaintiff
is seeking mandatory injunction to remove the
structure built by defendants on plaintiff's property.
Therefore to that extent the argument advanced by
advocate for plaintiff can be accepted.
34. As far as correction of boundaries of
plaintiff, encroachment and decisions relied by
advocate for defendant is concerned, same has to
be considered along with other evidence available
in this case, in particular, the evidence of
Commissioner and his report.
35. Learned Counsel for the defendant
argued that plaintiff has admitted the existence of
property of defendant and pointed out to
42
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
suggestion made to P.W.1-Shivkumar in the
cross-examination in O.S.No.500/2008.
In page No.5 it is suggested that the suit
property of that case is situated towards the end of
the layout on the land bearing Sy.No.86/7 towards
southern side. The witness has answered that suit
property is last but one property n the layout. Thus
the existence of property of plaintiff in O.S.No.
500/2008 is admitted.
The Learned Counsel for plaintiff in O.S.No.
872/2008 submitted that defendant's property
must be some where else and not in portion
claimed by him. It is submitted that the property
claimed by defendant is part of property CTS
No.1433 and as such, defendant has not proved his
case.
36. The plaintiff in O.S.No.500/2008 has
produced Ex.P2 registered sale deed dated
29-3-1980 wherein Site No.17 of Byanna
Layout is purchased. The boundaries mentioned in
sale deed are same as mentioned in plaint. The tax
paid receipt is dated 8-5-2002. Betterment charge
are paid on 20-3-2002 as per Ex.P4. Khatha extract
43
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
and Khatha certificate issued by BBMP is at Exs.P5
and P6. The photographs produced reveal that
about 5 ft. height construction is put up by plaintiff
in the site.
On the other hand, plaintiff in
O.S.No.872/2008 Dr.Shivakumar has stated that
defendants have tried to encroach property and
police complaint is lodged. The copy of complaint
and FIR is produced.
As against the complaint, the defendant has
produced copy of Acquittal Judgment. But however,
these aspects reveal that in November 2008 some
quarrel has taken place between both parties
regarding their respective property.
37. The plaintiff has got appointed Deputy
Director of Land Records, City Survey, Bangalore,
as Court Commissioner for purpose of measurement
of property No.36 measuring 70088.92 square feet.
The Commissioner warrant gives out the property
as described in schedule of plaint O.S.No.872/2008.
The Commissioner has completed the commission
work and report is filed showing that property
44
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
shown as suit schedule in O.S.No.500/2008 is lying
within the area of CTS No.1433.
38. The defendant in O.S.No.872/2008 has
filed objection to commission report, containing 14
pages and has prayed for rejecting the report.
39. The Commissioner is examined as C.W.1,
Report and Sketch are marked in evidence as
Exs.CW.1 to 15.
The Sketch prepared by Commissioner is at
Ex.C12. The suit property -CTS No.1433 is shown
with letter Nos. "P,Q,R,N" Ex.P5 in
O.S.No.872/2008 is the sketch of part of Sy.No.87
measuring 1 acre 31 guntas. In the evidence it is
stated that "P,Q,R,N" portion is property
encroached by defendant. This document and
Ex.D1 (Rough Sketch) in O.S.No. 500/2008 are one
and same document. Now, when these two
documents are compared with Commissioner's
sketch- Ex.C12, the property of defendant is shown
part and parcel of CTS No.1433.
40. The Learned Counsel for plaintiff
submitted that title documents, Commissioner's
45
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
sketch and evidence, clearly reflect that the
property claimed by defendant is a part of plaintiff's
property and as such D.D.L.R's report should be
accepted and plaintiff is entitled to relief claimed.
41. Learned Counsel for defendant in
O.S.No. 872/2008 submitted that neither sketch
nor evidence of Commissioner can be accepted as it
is full of inaccurate findings and there is no basis
for such report. It was argued that Commissioner
has not answered vital memo of instruction of
defendants, the Commissioner has not taken into
account the pipe line road, drains, for calculating
the extent of CTS No.1433. It was submitted that
there is no basis to say only 4 guntas of land is
taken for laying pipe. The Commissioner has failed
to take into consideration road, drains and other
points such as, "N, G, O,", "M, R, L, N, " shown in
sketch are not explained. It was submitted that
imaginary line C1 C2 and C3 will reflect a
harmonious line from Point "B" in sketch and it
would reflect that defendant's property is situated
beyond the property claimed by plaintiff. It was
submitted that Commissioner has given some
46
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
information like acquisition, etc. without there being
any material to support such observation.
42. Learned Counsel for defendant in
support of his argument placed reliance on decision
reported in 2001(2) SCC 762 (Lekh Raj vs. Muni Lal
and others) where it is laid down that commissioner
has to report about the existing fact and not how
they came about.
AIR 1933 Privy Council 143 (Nana Akpandja vs.
Fiaga Egblomesse) it is laid down that correction of
Map depends upon from which information is
obtained.
43. The Learned Counsel for plaintiff, in
reply, submitted that one has to depend upon the
correctness of sketch which is in accordance with
material available and produced. It was submitted
that the defendant did not place materials on his
side to disprove the sketch.
44. I have gone through the objections filed
by defendant to Commissioner report, evidence of
Commissioner and sketch-Ex.C12. Commissioner's
Report, evidence and sketch point out that property
claimed by defendant is part of plaintiff's property.
47
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
But, whether such report of Commissioner has to
be accepted is the core issue.
The sale deed of plaintiff's vendor mentions
the extent of Sy.No.87 as 2 acres 33 guntas. It is
supported by akarband document-Ex.P22 which
reflects land Sy.No.87 measuring 2 acres 33
guntas. In the plaintiff's sale deed -Ex.P3, the land
purchased is property bearing No.8, formerly
bearing Sy.No.87 measuring 77.319 square feet.
Now plaintiff has restricted his claim to 70,088.92
square feet. This is according to document-Ex.P14,
the extract of Property Register Card of CTS
No.1433. It reflects as measuring 65199 meters
which will work out to 70,088 square feet.
P.W.1, in his evidence, has stated at page
No.19 that City Survey authorities have informed
him that 7,231 square feet of land is encroached.
Now there are no particulars as to in which portion
the encroachment is made in Sy.No.87. The
plaintiff has not given the names of persons who
have encroached area. Plaintiff has stated that he
has not taken any action against other encroachers.
48
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
45. Learned Counsel for plaintiff submitted
that the defendant cannot attack on plaintiff for not
taking action against others. His case has to be
decided as per material available in the case.
It was submitted that defendant claims
property within the property of plaintiff and it has
nothing to do with other land said to encroached.
In my view, the non-giving of particulars of
encroachment of 7.231 square feet will assume
importance in this case, because, there is materials
to show that plaintiff is not in possession of entire
77.319 square feet as per sale deed. In that case,
there should be clear documents and material to
show only 7.319 square feet was encroached. For
this, the material placed by plaintiff is, Sketch and
Record of City Survey Department, mentioning CTS
No.1433 as "measuring 70.088 square feet". The
said document bears "Dated 7-1-2004". By then,
the defendant was having sale deed in respect of
his site as per sale deed dated 31-3-1980.
Defendant has stated in evidence that a fence was
put up around the site. Further, P.W.2 and P.W.3 in
O.S.No. 500/2008 are the other site holders in
49
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
Byanna Layout. They have stated that defendant in
O.S.No. 872/2008 was in possession of site.
46. P.W.2 Krishnappa's wife has site No.6
and it is stated in evidence that house is built in
Byanna Layout. The sale deed of P.W.2's wife is at
Ex.P37.
Similarly, P.W.3 Periswamy's wife owns site
No.18. The sale deed is produced at Ex.P38. He
has stated that he has constructed house and
residing in it. P.W.3 has stated that plaintiff in
O.S.No.500/2008 is in possession of site No.17.
P.W.3 in his cross-examination stated that towards
South of his house there is a drainage and
thereafter the Mafatlal Factory property is situated.
In Ex.P38 - sale deed, towards West site
No.17 is reflected. Plaintiff in O.S.No.500/2008
claims to be owner of site No.17. A layout plan on
Sy.No.86/7 is produced at Ex.D12 in
O.S.No.872/2008. Site No.17 is shown to be lying
towards West of site No.18. Of course, it is not an
approved layout plan of competent authority. But,
what can be gathered from evidence of P.W.2 and
P.W.3 is that, the plaintiff of O.S.No.500/2008 is
50
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
having site within Byanna Layout. The other site
holders have constructed house. In that case, when
plaintiff's property is along side of property of
P.W.3, it would be improper to say that only rights
of defendant in O.S.No. 872/2008 can be
challenged and the actions of other alleged
encroachers will be choice of plaintiff, will not hold
good. Only because plaintiff in O.S.No.500/2008
started putting up construction in 2008, the
defendant therein is questioning the right of
plaintiff based on his sale deed.
47. A perusal of Ex.C12 will reveal that
Commissioner has mentioned portion shown as E1,
E2, E3 and E4, B1 and B2 are encroached portion in
plaintiff's property. This will rise doubt about
Mafatlal Factory being in possession of extent
shown in sketch with imaginary letters C1, C2 and
C3. The compound of plaintiff is now put up by
plaintiff up to portion of defendant's property.
Therefore the evidence of P.W.1, 2 and 3 in
O.S.No.500/2008 to the effect that plaintiff is in
possession of site gets lot of supporting materials.
On the other hand, though plaintiff in O.S.No.
872/2008 S.S.Hospital has a sale deed to and
51
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
extent of 77,319 square feet, it is seen that they
are unable to prove the possession at least for
extent of 70,088 square feet.
48. Further, if evidence of Commissioner is
analysed and Sketch-Ex.C12 is seen, the entire
Sy.No.87 is not measured. The evidence of
Commissioner that Railway Department has not put
up their compound covering entire 38 guntas, has
no basis. This cannot be with accuracy unless the
Railway property within compound is measured.
The Commissioner has stated that he does not
know to whom portion RMNL belongs. The plaintiff
has shown boundary of property as towards North
by Railway Compound, CTS No.1430 and CTS 1432
and Sy.No.86. This "R, N, L, M" and "L, M, J, K"
area is situated in between the CTS 1433 and
Railway property. This area has to be part of
original Sy.No.87. The said area is not counted to
plaintiff's property area. In that case, it creates a
doubt as to whether Railways would exclude some
portion of their land and put up their compound
well inside their area.
Similarly, it is born out from evidence that
there is a big pipe line road. The Commissioner
52
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
says that only 4 guntas of land is acquired for
laying pipe line. The defendant is disputing that
aspect.
49. The defendant has examined Assistant
Executive Engineer, BWSB as D.W.3 in O.S.No.
872/2008. He has produced sketch -Ex.D36. The
said document shows pipe line valve beneath 10
meters road. The compound wall of plaintiff's
property is also shown. DW3 has clearly stated
about the existence of road and valve.
There is material to show that for laying
pipeline property in Sy.No.87 was acquired. In that
case, the road and drain are also the part of
property of plaintiff. The evidence of Commissioner
that 4 guntas of land is acquired for laying pipe
line, seems to be based on records and not actual
ground reality. There is loss of land shown as "O G
N. Road, drain, E1, E2, E3, E4, B1 and B2". Some
of the extent of the lands lost is not taken into
account. There are no material particulars as to, on
what basis the City Survey Authority have
calculated the area of CTS No.1433 as "6519
meters". The possibility of plaintiff's property
53
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
having land adjacent to Railway compound, also
cannot be ruled out.
The Commissioner has stated that
measurement is arrived by super imposition
method, as the nature of land has changed. This
again will be doubtful because there is no
explanation as to who owns "R, M, L, R" Portion.
Under the circumstances, the Commissioner's
Report and Sketch cannot be relied as it does not
refer to base records and there are several
unanswered query.
Apart from the Commissioner's Report is
against the evidence of P.W.2 and P.W.3 in
O.S.No.500/2008. The evidence of P.W.2 and P.W.3
is reliable. In that case, the Commissioner's sketch
does not seem to be correct. Hence evidence of
Commissioner and sketch Ex.C2 are rejected.
50. Defendants have examined D.W.2 -
Lokesh, a private Engineer, who has prepared a
sketch as per Ex.D34. In the cross-examination it is
elicited that D.W.2 has prepared same sketch of
CW1 -Engineer. A perusal of Ex.D34 will reflect that
most portion of Ex.C12 are put in place only in
pipeline road, some difference is shown regarding
54
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
installment of valve. In my view, it does not seem
that D.W.2 has skill and expertise to prepare such
survey map. Therefore it is not proper to rely on
the evidence of D.W.2 and hence, his evidence is
not taken into consideration for proof or disproving
of any of facts.
51. On over all consideration of evidence and
documents produced in this case, plaintiff in
O.S.No. 872/2008 have not proved the correct
description of property which includes the
measurement as 70,088.92 square feet. Hence,
Issue No. 1 in O.S.No.872/2008 is held in Negative.
52. Issue No.3 in O.S.No. 872/2008:
The plaintiff claims that defendants have
illegally put up construction in portion mentioned in
prayer portion, i.e., as an area marked in 1920
square feet claimed by defendants as site No.17 on
Byanna Layout.
The plaintiffs have proved that they are
owners of property No.36, Raghavendra Layout,
Bangalore. But, they have not proved the
dimensions and the fact that defendant has
encroached the property.
55
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
53. The Advocate for plaintiff has submitted
that the defendant has illegally put up construction
on plaintiff's property and same has to be
demolished. It was also pointed out that no
permission is obtained by defendant for putting up
construction.
54. The plaintiff has failed to prove that
defendant has put up construction in plaintiff's
property. Therefore, to that extent, it cannot be
said that defendant has illegally put up construction
in plaintiff's property. As far as permission is
concerned, the defendant has admitted that he has
not obtained permission to put up construction.
That act will be illegal. But, the Issue has to be held
in Negative and accordingly Issue No.3 in
O.S.No.872/2008 is held in Negative.
55. Issue Nos.6 and 7 in O.S.No. 872/2009:
The Defendants have taken up contention that
suit O.S.No.872/2008 is not maintainable and court
fee is incorrect.
In this regard Learned Counsel for defendant
submitted that suit filed is not within limitation. In
56
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
this regard he has placed reliance on decision
reported in 2009 (4) KLJ 545 {V.Srinivasaraju & ors
vs. Bharat Electronics Ltd. and ors). The said decision
is relating to declaration and receiving of
possession of land. The said decision does not apply
to the case on hand.
The plaintiff has given the cause of action
date and there are allegations of each party
regarding obstruction while filing suit. Therefore the
suit filed in time.
Further, the plaintiff has sought for relief of
mandatory injunction and title issue is raised and
dealt with evidence being adduced by both parties.
In my view the suit is maintainable and Court fee
paid is proper. Hence, Issue No.6 and 7 in
O.S.No.872/2008 are held in the Negative.
56. Issue No. 1 in O.S.No.500/2008:
The plaintiff claims to be in possession of suit
property. The title documents dated 31-3-1980 is
produced at Ex.P2. The witnesses P.W.2 and P.W.3
have stated about possession of plaintiff. This Issue
is also dealt while dealing with Issues No.1 and 2 in
O.S.No.872/2008. There is sufficient evidence to
57
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
prove that plaintiff is in possession. Hence, Issue
No.1 in O.S.No. 500/2008 is held in Affirmative.
57. Addl. Issue No.5 in
O.S.No.500/2008:
This Issue is framed by asking the plaintiff to
prove the identity of the suit schedule property. In
this regard, plaintiff has tendered evidence through
Power of Attorney Holder, her son and he has
stated about the boundaries of the suit schedule
site. He has produced the registered sale deed
dated 31-3-1980 at Ex.P1. The Khatha
certificate and Khatha extract are produced. It has
been argued that the said site is situated within
Byanna Layout. P.W.2 and 3 are also the residents
of Byanna Layout and they have clearly stated
about the plaintiff's property. The defendant has
filed suit O.S.No. 872/2008 and contended that the
plaintiff therein is encroaching the property. But,
however, plaintiff in O.S.No.872/2008 is not
successful in proving the fact that property of
plaintiff in O.S.No.500/2008 is part and parcel of
property of plaintiff in O.S.No. 872/2008.
Therefore, viewed from any angle, the plaintiff has
established the identity of the property. Under the
58
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
circumstances, Additional Issue No.5 in O.S.No.
500/2008 is held in the Affirmative.
58. Issue No.2 in O.S.No. 500/2008:
The plaintiff has filed the suit saying that
defendant is trying to interfere in the suit property
on 14-1-2008. P.W.1 has stated accordingly. In
this case, defendant has also filed another suit
claiming rights to the effect that plaintiff herein is
obstructing in his property. There are claim against
claim by each party. Further complaint is also
lodged by defendant of this case. Therefore it can
be said that there was some quarrel relating to the
plaintiff's property. Further, defence taken by the
defendant will establish the interference. Hence,
Issue No.2 in O.S.No.500/2008 is answered in the
Affirmative.
59. Issue Nos. 4, 5 and 8 in
O.S.No.872/2008
and
Issue Nos. 3 and 4 in O.S.No. 500/2008
:
In view of my finding given on above Issues in
both suits O.S.No. 872/2008 and O.S.No.
500/2008, the plaintiff in O.S.No. 872/2008 is not
59
O.S.No.9670/2005 c/w.
O.S.No.27145/2009
entitled for the relief of permanent injunction and
mandatory injunction sought against defendants
and suit is liable to be dismissed.
Whereas, the plaintiffs in O.S.No. 500/2008 is
entitled to relief of permanent injunction sought
against defendant. Hence, Issue Nos. 4 and 5 in
O.S.No. 872/2008 are answered in the Negative
and Issue No.3 in O.S.No. 500/2008 is answered in
the Affirmative. In the result, I proceed to pass the
following:
ORDER
The suit of the
plaintiff-M/s.S.S.Hospitals Pvt. Ltd. in
O.S.No. 872/2008 for permanent
injunction and mandatory injunction, is dismissed.
No costs.
The suit of the plaintiff
-G.K.Neelamba in O.S.No.500/2008 for permanent injunction, is decreed.
No costs.
60O.S.No.9670/2005 c/w.
O.S.No.27145/2009 The defendant-Dr.Shiva Shankar and his men are hereby retrained by way of permanent injunction, from interfering in the plaintiff's peaceful possession and enjoyment over the suit schedule property.
Draw Decree accordingly.
Keep copy of this Judgment in O.S.No.500/2008.
(Dictated to the Judgment Writer and also typed to my dictation directly on the Computer, by the J.W. and computerised print-out taken thereof is corrected, signed and then pronounced by me in Open Court on this the 3rd day of April 2014.) (R.K.TALIKOTI) XXII Addl. City Civil & Sessions Judge, *sb Bangalore.
61O.S.No.9670/2005 c/w.
O.S.No.27145/2009 ANNEXURE List of witnesses examined for plaintiff in O.S.No. 872/2008 :
P.W.1 Dr.Shivashankar List of witnesses examined for defendants in O.S.No. 872/2008 :
D.W.1 G.K.Shiva Prakash D.W.2 D.Lokesh D.W.3 M.Kempaiah
List of documents exhibited for plaintiff in O.S.No. 872/2008 :
Ex.P1 - c.c. of sale deed dt. 2/1/1943 Ex.P2 - c.c. of sale deed dt. 16/7/1943 Ex.P3 - c.c. of sale deed dt.14/9/2005 Ex.P3(a)- c.c. of sketch appended to Ex.P3. Ex.P4 - Notice issued by BBMP dt. 13/6/2007, Ex.P5 - Receipt issued by BBMP Exs.P6 to P11 - c.c. of tax paid receipts Ex.P12 - c.c. of katha certificate Ex.P13 - c.c. of katha extract Ex.P14 -c.c. Property Register Card 62 O.S.No.9670/2005 c/w.
O.S.No.27145/2009 Ex.P15 -Extract of Field Book of City Survey Dept. Ex.P16 - c.c. of PT Register issued by Survey Dept. Ex.P17 -c.c. of Survey sketch. Ex.P18 - Rough sketch prepared by Pvt. Surveyor Ex.P19 - c.c. of FIR in Cr. No.22/2008 Ex.P20 -xerox of Complaint pertaining to Ex.P19 Ex.P21 - c.c. of order in W/P. 1189/78, Ex.P22- Revision Settlement Akarbandh of Sy.No. 86 Ex.P23 - xerox of Village map of Yeshwanthpura Ex.P24 - c.c. of cross examination in OS.500/2008 Ex.P25 - c.c. Chief-Examination. in O.S.No.500/2008 List of documents marked for defendants in O.S.No. 872/2008:
Ex.D1 - xerox copy of Conversion Order Exs.D2 & D2 - photographs.
Ex.D4 - c/c of W.S. in O.S.500/2008 Ex.D5 - c.c. of Sketch marked in O.S.500/2008 Ex.D6 - copy of sketch filed along with the plaint Exs.D7 to D10 - photographs Ex.D11 - c.c. of GPA, 63 O.S.No.9670/2005 c/w.
O.S.No.27145/2009 Ex.D12 - c.c. of layout plan Ex.D13 - c.c. of registered sale deed dt. 31.3.1980, Ex.D14 - c.c. of Corporation Notice dt. 8.5.2002 Ex.D15-c.c.of Betterment charges paid receipt dt.20-3-02 Ex.D16 - c.c. of endorsement dt. 31/3/2002, Exs.D17 & D18 c.c. of katha extracts dt. 29/12/2007 Ex.D19 - c.c. of Tax paid receipt Ex.D20 - c.c. of NSC certificate Ex.D21- c.c. of BMP Acknowledgement dt.19/2/2002 Ex.D22 - c.c. of endorsement Ex.D23 - c.c. of photographs with negatives Ex.D24-c.c. of Memo dt.3/3/2008 with photos Ex.D25 - c.c. of tax paid receipt Ex.D26 - c.c. of sale deed dt. 28/4/1933 Ex.D27 - c.c. of sale deed dt. 16/6/1969 Ex.D28 - c.c. of P.A. given by Muniyappa to Byanna Ex.D29 - c.c. of w/s filed in O.S. No.500/2008 Ex.D30- c.c. of deposition in O.S.No.500/2008 Ex.D31 - c.c. of photograph Ex.D32 - c.c. of sale deed pertaining to site no.18, Ex.D33 - c.c. of sale deed pertaining to site no.6. Ex.D34 - sketch 64 O.S.No.9670/2005 c/w.
O.S.No.27145/2009 Ex.D35 - Measurement Paper Ex.D36 - Sketch Court Commissioner examined in O.S.No.872/2008;
C.W.1 - K.V.Rudresh List of documents marked through Court Commissioner Ex.C1 - Warrant Ex.C2 - Memo of Instruction filed by plaintiff Ex.C3 - Memo of Instruction filed by defendant Exs.C4 & C5 - copies of Notices Exs.C6 to C8 - Postal acknowledgments Ex.C9 - Instructions given by parties Ex.C10 -Reply to defendant's Memo of Instruction Ex.C11 - Separate Report on Measurement Ex.C12 - Survey Sketch Ex.C13 - Spot Mahazar Ex.C14 - Letter given at spot by plaintiff's advocate Ex.C15 - Letter given by Advocate for defendant List of witnesses examined for plaintiff in O.S.No. 500/2008 :
P.W.1 G.K.Shivaprakash
P.W.2 Krishnappa
65
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O.S.No.27145/2009
P.W.3 Periswamy
List of witnesses examined for defendants in O.S.No. 500/2008 :
D.W.1 Dr.Shivashankar List of documents exhibited for plaintiff in O.S.No. 500/2008 :
Ex.P1 -G.P.A. executed in favour of P.W.1 Ex.P2 - c.c. of sale deed dtd.31-3-80 executed in favour of plaintiff by Byanna Ex.P3 - Demand Notice issued by BCC dt.8-5-2002 Ex.P4 - Receipt for having paid Betterment charges Ex.P5 - Khatha extract Ex.P6 - Khatha certificate Exs.P7 & P8 - two NSCs. Of Rs.100/- each Exs.P9 & P10 - Acknowledgments issued by Corporation Ex.P11 - Endorsement issued by BCC Exs.P12 to P25 & P26 to P31 - photographs Exs.P12(a) to P25(a) & P26(a) to P31(a)- Negatives Ex.P32 - Memo Ex.P33 - Receipt for having paid tax to BMP Ex.P34 - c.c. of sale deed dated 28.4.1933 66 O.S.No.9670/2005 c/w.
O.S.No.27145/2009 Ex.P35 -c.c. registered sale deed dated 16.6.1969 Ex.P36 - c.c. sale deed dated 18.1.1975 Ex.P37 - c.c. of registered sale deed dtd.17-12-1999 Ex.P38 - c.c. of sale deed dtd.27-6-2001 Ex.P39 - Building licence issued by City Corporation Ex.P40 - sanctioned plan Ex.P41 - xerox copy of GPA Ex.P42 - xerox copy of layout plan Ex.P43 - c.c. of GPA dt. 22/8/1979 Ex.P44 - c.c. of sale deed dt. 1/11/1974 executed by Kanna Reddy in favour of Byanna. Ex.P45 - katha extract Ex.P46 - Photograph List of documents marked for defendants in O.S.No. 500/2008:
Ex.D1 - Sketch Exs.D2 to D6- Photographs Ex.D5(a) - Marked portion Ex.D7 - c.c. of sale deed dated 27-4-1974 Ex.D8 - c.c. of sale deed dt. 2/1/1943 Ex.D9 - c.c. of the sale deed dt. 16/7/1943, Ex.D10 - c.c. of sale deed dt.14/9/2005 Ex.D10(a) - c.c. of sketch appended to Ex.D10.67
O.S.No.9670/2005 c/w.
O.S.No.27145/2009 Ex.D11 - Notice of BBMP dt. 13/6/2007 Ex.D12 - c.c. of Receipt issued by BBMP Exs.D13 to D17 - c.c. of tax paid receipts Ex.D18 - c.c. of katha certificate Ex.D19 - c.c. of katha extract Ex.D20 - c.c. of Property Register Card Ex.D21-c.c.of Field book issued by City Survey Dept. Ex.D22 - c.c. of PT Register issued by survey dept.
Ex.D23 - c.c. of survey sketch. Ex.D24 - rough sketch prepared private Surveyor Ex.D25 - c.c. of FIR in Cr. No.22/2008 Ex.D26 - xerox copy of complaint Ex.D27 - c.c. of order in W/P. 1189/78, Ex.D28 - Revision settlement Akarbandh Ex.D29 - xerox copy of the village of Yeshwanthpura Ex.D30 - c.c. of deposition in O.S.No.872/2008.
(R.K.TALIKOTI) XXII Addl. City Civil & Sessions Judge, Bangalore.68
O.S.No.9670/2005 c/w.
O.S.No.27145/2009 3-4-2014 Common Judgment in O.S.No.872/2008 and O.S.No. 500/2008 passed and pronounced in Open Court. Operative portion thereof reads as under:
The suit of the plaintiff-M/s.S.S.Hospitals Pvt. Ltd. in O.S.No. 872/2008 for permanent injunction and mandatory injunction, is dismissed.
No costs.
The suit of the plaintiff -G.K.Neelamba in O.S.No.500/2008 for permanent injunction, is decreed.
No costs.
The defendant-Dr.Shiva Shankar and his men are hereby retrained by way of permanent injunction, from interfering in the plaintiff's peaceful possession and enjoyment over the suit schedule property.
Draw Decree accordingly.
Keep copy of this Judgment in O.S.No.500/2008.
XXII A.C.C. & S.J., Bangalore.