Bangalore District Court
Mr. A. George Francis vs Mr. Tony on 6 February, 2021
1 OS.No.25039/2013
Govt. Of Katakana
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
Title sheet for
AT MAYOHALL UNIT, (CCH-29) BANGALORE.
Judgment in suits
(R.P.91)
Present: Sri. Krishnaji Baburao Patil, B.Com., LL.B.(Spl.),
Dated: This the 6th day of February 2021
Original suit No.25039/2013
Plaintiff:- Mr. A. George Francis,
S/o Mr. Anthony,
Aged about 62 years,
R/at # 10, Kenchappa Road,
Frazer Town, Bangalore-5.
(By Pleader : Sri. Hitesh Kumar Jain)
V/s
Defendants:- 1. Mr. Tony,
S/o Mr. Anthony,
Aged about 45 years,
R/at # 20, Kenchappa Road,
Frazer Town, Bangalore-5.
2. Mr. Mascarnahas,
S/o Mr. Anthony,
Aged about 40 years,
R/at # 20, Kenchappa Road,
Frazer Town, Bangalore-5.
2 OS.No.25039/2013
3. The Commissioner,
Bruhat Bangalore Mahanagara
Palike,
Bangalore.
4. The Deputy Commissioner,
Bruhat Bangalore Mahanagara
Palike,
PUB Building, M.G. Road,
Bangalore-1.
5. The Executive Engineer,
Bruhat Bangalore Mahanagara
Palike,
PUB Building, M.G.Road,
Bangalore-1.
6. The Assistant Executive Engineer,
Bruhat Bangalore Mahanagara
Palike,
Ward No.78, M.M. Road,
Frazer Town, Bangalore-5.
(Pleader by: Sri. K.M. Jagannath, for D.1 and D.2,
Sri. K.K. Surendra, for D.3 to D.6)
Date of Institution of the suit 7.1.2013
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Injunction Suit
injunction, etc.)
Date of the commencement of 20.3.2017
recording of the Evidence
Date on which the Judgment was 6.2.2021
pronounced
Year/s Month/s Days
Total duration 08 00 29
3 OS.No.25039/2013
JUDGMENT
The present suit is filed by the Plaintiff against the Defendants for the relief of permanent injunction restraining Defendants from interfering with the Plaintiff's peaceful possession and enjoyment of the Plaint 'C' Schedule Property and to direct the Defendant Nos.3 to 6 to demolish the unauthorized construction put up by the Defendant Nos.1 and 2 blocking the corporation conservancy lane and for costs of the suit.
2. The Plaintiff has stated that he is the owner of the Schedule 'A' Property and the Defendant No.1 and 2 are the owners of Schedule 'B' Property. It is stated that there is a conservancy lane belonging to Bruhat Bangalore Mahanagara Palike between the Property of the Plaintiff and the Defendant No.1 and 2, which is 'L' shaped leading to Kenchappa Road, in this conservancy lane the chambers of both the properties i.e., 9, 10 and 20 are situated, and the water line of the Plaintiff's property runs through this 4 OS.No.25039/2013 conservancy lane, said conservancy lane is described as Schedule 'C' Property. In this Corporation conservancy lane the Defendant No.1 and 2 had put up a gate unauthorizedly blocking the Plaintiff's way and in case the chamber overflows then the same could to be repaired as the access to Kenchappa Road is blocked by the Defendant No.1 and 2 by erecting a gate which is encroached upon by the Defendant No.1 and 2 without the knowledge of the Bangalore Mahanagara Palike, when the Plaintiff resisted this construction the Defendant No.1 and 2 have threatened the Plaintiff, and the Plaintiff could not resist the unauthorized claim of the Defendant No.1 and 2. It is stated that the said conservancy lane is in existence since more than 60 years to the knowledge of this Plaintiff and the Defendant No.1 and 2 have started using the said lane for their personal use and are parking their two wheeler and unwanted things had been dumped which is obstructing the usage of the same and are not entitled to do the same. The Plaintiff had made oral request to the Defendant No.6 to get this unauthorized gate removed and the 6 th Defendant 5 OS.No.25039/2013 assured its removal however no action was taken by the BBMP. Ultimately, the Plaintiff was constrained to issue legal notice calling upon the Defendant No.3 to 6 to remove the unauthorized gate erected in BBMP property vide legal notice dtd: 10.6.2011. The Defendant No.3 to 6 after receipt of the notice, have failed to initiate any action, but have intimated vide their letter dtd: 24.12.2011, that they have removed the unauthorized gate put up by the Defendant No.1 and 2, encroached upon the passage to an extent of 10' X 43'. However on verification, it was found that the unauthorized structure put up by the Defendant No.1 and 2 was not demolished, it was also found that the conservancy lane is still blocked by the Defendant No.1 and 2 by parking their vehicles. The Defendant have not taken any action against the representation of the Plaintiff. The Plaintiff further stated that the water lines situated in the said conservancy lane is in existence since 40 years, due to the act of the Defendant No.1 and 2 the water supply to the Plaintiff's property is completely blocked, the water in let pipe has got damaged due to the act of the Defendant No.1 6 OS.No.25039/2013 and 2. The Defendants have not permitted the Plaintiff to get the said water inlet pipe repaired as they have illegally occupied the said area by putting up an unauthorized construction. The construction on the property of the Plaintiff is way back of the year 2000 with a valid sanction plan, sanitary connection was also obtained at that point of time itself, the said water inlet was in existence and there was no obstruction as there was no unauthorized construction in existence. The Plaintiff had filed Writ Petition against the Defendants before the Hon'ble High Court of Karnataka in W.P.No.25704/2011 and W.P.No.311145- 46/2011 and the Hon'ble High Court of Karnataka vide its order dtd: 3.10.2012 disposed of the same with an observation that "The question as to whether there exists a conservancy lane which the Petitioner is entitled to use to the exclusion of the Respondent 5 and 6 being disputed question of fact that cannot be conveniently adjudicated in this proceeding, reserving liberty to the Petitioner to secure, necessary declaration and/or injunction reliefs from a competent Civil Court, petitions are accordingly rejected." 7 OS.No.25039/2013 The cause of action arose on 10.11.2011, 3.10.2012 and subsequently within the jurisdiction of this Hon'ble Court. Hence, prayed to decree the suit.
3. In response to the summons, the Defendant No.1 and 2 have appeared before the Court through their Advocate and filed the written statement. Inspite of service of summons, the Defendant No.3 to 6 have not appeared before the Court and have not filed their written statement.
4. The Defendant No.1 and 2 filed their written statement denying the allegations made by the Plaintiff in the plaint and further made counter claim for the decree of mandatory injunction directing the Defendant No.3 to 6 to remove the unauthorized construction put up by the Plaintiff and other owners of properties abutting the conservancy lane by encroaching on the said conservancy lane and to clear and restore the conservancy lane to its original form and also to restrain the Plaintiff from putting up any further construction by encroaching over the conservancy lane mentioned in the counter claim. The Defendant No.1 and 2 have also stated that the Plaintiff has erected a gate on the 8 OS.No.25039/2013 northern end of the conservancy in between the property of these Defendants and the alleged property No.20 of the Plaintiff, thereby blocking entry to the said conservancy lane. Further, these Defendants also alleged that the Plaintiff and several other owners of properties on either side of the said conservancy lane have illegally put up construction over the conservancy lane by encroaching upon the same. They have paid court fee for the counter claim. Hence, prayed to dismiss the suit.
5. The Plaintiff has filed rejoinder to the counter claim denying all the allegations made by the Defendant No.1 and 2 in the written statement and prayed for dismiss the counter claim with costs.
6. Based on the aforesaid pleadings this Court has framed the following issues:-
1) Whether the Plaintiff proves that he is in lawful possession and enjoyment of the suit 'C' schedule property as on the date of filing of this suit?9 OS.No.25039/2013
2) Whether the Plaintiff proves that the Defendant No.3 to 6 have unauthorizedly erected construction and blocked the conservancy lane?
3) Whether the Plaintiff proves the alleged interference by the Defendants?
4) Whether the Plaintiff is entitled to the relief as sought?
5) What order or decree?
Additional Issues
1) Whether the Plaintiff further proves that he is entitled for demolishing of the unauthorized construction blocking the corporation conservancy lane in the Plaint Schedule Property?
2) Whether the Defendant No.1 and 2 prove that the Plaintiff has put up the construction by encroaching the conservancy lane described in the schedule to the counter claim?
3) Whether the Defendant No.1 and 2 further proves that the Defendant No.3 to 6 are liable to remove the construction by encroaching the conservancy lane described 10 OS.No.25039/2013 in the schedule to the counter claim?
4) Whether the Defendant No.1 and 2 further prove that the Plaintiff is trying to put up construction by encroaching the conservancy lane described in the schedule to the counter claim?
5) Whether the Defendant No.1 and 2 are entitled for the relief of mandatory injunction and temporary injunction?
7. To prove the case of the Plaintiff, the Plaintiff got himself examined as P.W.1 and got marked documents as per Ex.P.1 to Ex.P.22 and closed his side. The Defendants have not led any evidence.
8. The Advocate for Plaintiff has filed written arguments and the same is taken into consideration. The Defendant No.1 to 6 have not submitted any arguments in the present case.
9. My answers to the above issues are as follows:-
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.11 OS.No.25039/2013
Issue No.3 : In the Negative.
Issue No.4 : In the Negative.
Addl. Issue No.1 : In the Negative. Addl. Issue No.2 : In the Negative. Addl. Issue No.3 : In the Negative. Addl. Issue No.4 : In the Negative. Addl. Issue No.5 : In the Negative. Issue No.5 : As per final orders for the following:
REASONS
10. Issues No.1, 2 and Additional Issue Nos.1 to 4:- All these issues are inter-related, hence, answered in common, in order to avoid repetition of facts.
11. The present suit is filed by the Plaintiff against the Defendants for the relief of permanent injunction restraining Defendants from interfering with the Plaintiff's peaceful possession and enjoyment of the Plaint 'C' Schedule Property and to direct the Defendant Nos.3 to 6 to demolish the unauthorized construction put up by the Defendant Nos.1 and 2 blocking the corporation conservancy lane on 12 OS.No.25039/2013 the ground that the Plaintiff is the owner of the Schedule 'A' Property and the Defendant No.1 and 2 are the owners of Schedule 'B' Property and there is a conservancy lane belonging to Bruhat Bangalore Mahanagara Palike between the Property of the Plaintiff and the Defendant No.1 and 2, which is shown as Schedule 'C' Property. The said conservancy lane is in existence since more than 60 years to the knowledge of this Plaintiff and the Defendant No.1 and 2 have started using the said lane for their personal use and are parking their two wheeler and unwanted things had been dumped which is obstructing the usage of the same and are not entitled to do the same. The Plaintiff had made oral request to the Defendant No.6 to get this unauthorized gate removed and the 6 th Defendant assured its removal however no action was taken by the BBMP. Therefore, the Plaintiff got issued legal notice to the Defendant No.3 to 6 to remove the unauthorized gate erected in BBMP property. But, no action was taken by the Defendants. The Plaintiff had filed Writ Petition against the Defendants before the Hon'ble High Court of Karnataka in W.P.No.25704/2011 and 13 OS.No.25039/2013 W.P.No.311145-46/2011 and the Hon'ble High Court of Karnataka by its order dtd: 3.10.2012 disposed of the same with an observation that "The question as to whether there exists a conservancy lane which the Petitioner is entitled to use to the exclusion of the Respondent 5 and 6 being disputed question of fact that cannot be conveniently adjudicated in this proceeding, reserving liberty to the Petitioner to secure, necessary declaration and/or injunction reliefs from a competent Civil Court, petitions are accordingly rejected." Therefore, the Plaintiff has filed the present suit.
12. The Defendant No.3 to 6 have appeared through heir Counsel. But have not filed any written statement in the present suit.
13. The Defendant No.1 and 2 filed their written statement denying the allegations made by the Plaintiff in the plaint and further made counter claim for the decree of mandatory injunction directing the Defendant No.3 to 6 to remove the unauthorized construction put up by the Plaintiff and other owners of properties abutting the conservancy 14 OS.No.25039/2013 lane by encroaching on the said conservancy lane and to clear and restore the conservancy lane to its original form and also to restrain the Plaintiff from putting up any further construction by encroaching over the conservancy lane mentioned in the counter claim. The Defendant No.1 and 2 have also stated that the Plaintiff has erected a gate on the northern end of the conservancy in between the property of these Defendants and the alleged property No.20 of the Plaintiff, thereby blocking entry to the said conservancy lane. Further, these Defendants also alleged that the Plaintiff and several other owners of properties on either side of the said conservancy lane have illegally put up construction over the conservancy lane by encroaching upon the same. They have paid court fee for the counter claim. Hence, prayed to dismiss the suit.
14. The Plaintiff has filed rejoinder to the counter claim denying all the allegations made by the Defendant No.1 and 2 in the written statement and prayed for dismiss the counter claim with costs.
15 OS.No.25039/2013
15. In order to prove his case, the Plaintiff got examined himself as PW.1 and filed his affidavit reiterating the contents of the plaint and got marked certified copy of the Sale Deed as per Ex.P.1, certified copy of the Lease Deed as per Ex.P.2, certified copy of the Mortgage Deed as per Ex.P.3, Tax Paid Receipts as per Ex.P.4, Khatha Extract and Khatha Certificate as per Ex.P.5 and Ex.P.6, the Application issued for the sanitary connection and the order sanctioning the same along with the sketch is as per Ex.P.7, the copy of the two legal notices as per Ex.P.8 and Ex.P.9, four postal acknowledgements as per Ex.P.10 to Ex.P.13, two returned postal envelops as per Ex.P.14 and Ex.P.15, reply issued by the BBMP as per Ex.P.16, two sheets containing to photographs each as per Ex.P.17 and Ex.P.18, CD as per Ex.P.19, the certified copy of the order in OS.No.16193/2000 as per Ex.P.20, notice issued by the BBMP as per Ex.P.21 and certified copy of the order passed by the Hon'ble High Court of Karnataka in W.P.No.25704/2011 as per Ex.P.22. The notices inside the Ex.P.14 and Ex.P.15 are as per Ex.P.14(a) and Ex.P.15(a). 16 OS.No.25039/2013 This witness is cross-examined in part by the Advocate for Defendant No.1 and 2. During the cross-examination, he has stated that the Defendant No.1 and 2 known to him since last 30 years. The width of the Schedule 'C' Property is 4 Feet and the length is 100 Feet. The Defendants are the owners of the Schedule 'B' Property. The property of the Plaintiff is situated on the rear side of the property of the Defendants. The Defendants' property is situated on the Southern end of the Schedule 'C' Property. On the Western side of the Schedule 'C' Property there are nine other properties are situated and on the Eastern side five properties are situated. The Schedule 'C' Property i for the common use and enjoyment of all the owners of the properties situated on the either side of the lane. He has document to show that Sewage and Water connection to his property is still being used through the Schedule 'C' Property. He can produce the same. On the South end corner of the land the Defendant No.1 and 2 have fixed th e gate to the lane. He do not know when exact the said gate was fixed by the Defendants. He came to know about the 17 OS.No.25039/2013 same in the year 2007, as he went to inspect the said place when the sewage was blocked. It was suggested to this witness that the said gate was fixed to avoid anti-social elements from entering the said lane. The Northern end of the land opens to another lane. The Defendant No.1 and 2 have also fixed a gate at the Northern end of the lane. It was suggested that the said Norther side gate was fixed by the Plaintiff. He denied the same. He has not pleaded about the erection of the gate by the Defendant No.1 and 2 in the notice issued by him to the Defendant No.3 to 6. In Ex.P.16 he has stated that the obstruction is removed. He has further stated that only gate was removed and not the structure. The structure is the small room construction on the conservancy lane. He has also stated that he has no objection to remove the gate on the Northern side of the land and if the same is in existence. Further the cross- examination was deferred. Thereafter the PW.1 was not cross-examined by the Counsel for Defendant No.1 and 2. The Defendant No.1 and 2 have also not led their evidence in support of their case. This is all oral and documentary 18 OS.No.25039/2013 evidence produced by the Plaintiff and the Defendants in support of their case. The putting up of the gate by the Defendant No.1 and 2 is not pleaded by the Plaintiff in the present case. The Plaintiff has filed the present suit only in respect of Schedule 'C' Property restraining the Defendants from interfering with the Plaintiff's peaceful possession and enjoyment of the Schedule 'C' Property by way of permanent injunction and to demolish the unauthorized construction blocking the Corporation conservancy lane i.e., Schedule 'C' Property. The conservancy lane is in between the property No.9, 10 and 20 of Kenchappa Road bounded on East by : Property No.9, 10 of Plaintiff, West by :
Conservancy Lane, North by : Property No.20 Property, claimed by the Defendant No.1 and 2 and lane, South by :
Private Property. It is pertinent to note that the Plaintiff in his plaint has not at all stated what is the exact measurement of the Schedule 'C' Property. He has also not produced any documentary evidence in that regard in the present suit. The exact measurement of the Schedule 'C' Property cannot be find out without documentary evidence 19 OS.No.25039/2013 in that regard produced by the Plaintiff. The Defendant No.3 to 6 appeared in the present case. But, they have also not filed any written statement, nor produced any documentary evidence in the present case. The Plaintiff has not made any attempts to call for the documents from the Defendant No.3 to 6 in respect of the Schedule 'C' Property to show that what is the measurement of the Schedule 'C' Property Conservancy Lane. The Plaintiff has produced photographs as per Ex.P.17 and Ex.P.18. On seeing the same one cannot say that as there is a Conservancy Lane as stated by the Plaintiff in the present suit. The situation of the Conservancy Lane in between the property of the Plaintiff and the Defendant No.1 and 2 is undisputed fact. But what is the measurement of the Conservancy Lane and what is the measurement encroached by the Defendants in the said lane. The claim of the Plaintiff cannot be granted. In the present case, after the case was posted for Judgment, this Court suo-moto appointed the Court Commissioner and the Advocate/Court Commissioner was appointed to report about the Conservancy Lane with the help of both the 20 OS.No.25039/2013 parties and note its length and width and its starting point and ending point. The Court Commissioner shall also note the contents of the Conservancy Lane. The Court Commissioner shall also note the existence of the gate if any as alleged by the Plaintiff. He shall note the existence of the gate if any as pleaded by the Defendant No.1 and 2 in Para No.1 of their counter claim. The Court Commissioner shall also note the encroachment alleged by the Plaintiff and its dimension as pleaded by the Plaintiff in Para No.7 of the plaint and note its dimension. The Court Commissioner shall also note the encroachment and its dimension as alleged by the Defendant No.1 who have been put up by the Plaintiff and other owners as pleaded in Para No.2 of the counter claim. Te Court Commissioner shall prepare the neat sketch showing the Conservancy Lane, its contents, the place of fixing of the gates and the encroachment if any in the Conservancy Lane. Accordingly, the Advocate/Court Commissioner was appointed and he filed his reported noting that the Conservancy Lane was identified by him wit the help of the Plaintiff and Defendant No.2 and the same 21 OS.No.25039/2013 was noted in the sketch annexed to the Commissioner's Report. The Conservancy Lane has a stair case and a toilet situated towards the Northern end of the Property No.9 and 10, similarly on the Western side, there are staircases of the adjoining property which is overlapping the Conservancy Lane. One Gate exists on the extreme Northern end of the Conservancy Lane, as shown in the sketch. There is a Gate and the averments in the Para No.1 of the counter claim made by the Defendant No.1 and 2 is correct. The averments made in Para No.7 of the Plaint is also correct, except with regard to the measurement, i.e., the width and length of the Conservancy Lane is not correct as contended 10 X 43 feet, but it is actually 5.7 feet X 80 feet approximately, narrow in the middle and gradually widening at the Southern end to a width of 5 feet, 2 feet, 2 1/2 feet.
The same is also noted in the sketch. The width of the Conservancy Lane is reduced and it is not uniform. The actual measurement excluding the encroached portion at 5 different points are i) 3 feet, ii) 2 1/2 feet, iii) 2 1/2 feet, iv) 2 feet, and finally at the end of the Conservancy Lane it 22 OS.No.25039/2013 measures 2 1/2 feet. Rough sketch draw at the spot, with signatures of the parties and the Advocate for Plaintiff. The neat sketch was prepared subsequently and produced along with the Commissioner Report. From the sketch prepared by the Commissioner, it is clear that there is a Gate on the Southern side of the said Conservancy Lane which is black in colour and the measurement at the Northern side is 5 feet 7 inches. There is encroachment of staircase and toilet in the said Conservancy Lane. The measurement of the said Conservancy Lane is not similar in all the places. In the present case, the Plaintiff also encroached upon the Conservancy Lane as shown by the Plaintiff in the Commissioner Report. The Defendants in their written statement have denied the allegations made by the Plaintiff. But, made a counter claim asking the Defendant No.3 to 6 to take action against the persons who have made construction in the said Conservancy Lane. Admittedly, on either side all the said Conservancy Lane there are many other properties of different persons who are not parties to the present suit. In the absence of any evidence produced 23 OS.No.25039/2013 by the Plaintiff to show the existence of Schedule 'C' Property as shown in the plaint schedule and the exact measurement of the Schedule 'C' Property and the exact measurement of the alleged encroachment by the Plaintiff as claimed by the Defendants No.1 and 2 in their counter claim and the exact measurement of the counter claim schedule as pleaded by the Plaintiff in his plaint, the relief sought for by the Plaintiff cannot be granted. The evidence produced by the Plaintiff is not sufficient to grant relief claimed by the Plaintiff in the present suit. With respect to the gate fixed by the Plaintiff and the Defendants in the said Conservancy Lane is not pleaded by the Plaintiff in the present suit. Only after the Defendants have filed the counter claim, the Plaintiff has stated that he has no objection to remove the said Northern side gate of hte said Conservancy Lane. The Plaintiff has not come to the Court with clean hands. He had also encroached upon the Conservancy Lane as shown by the Court Commissioner in his report. One Arogyiamarry has filed a suit against the Plaintiff and other in OS.No.16193/2000. In the said case, 24 OS.No.25039/2013 the suit was dismissed as not maintainable on the ground that the relief sought for cannot be granted as the same is not as per law and not under the preview of the jurisdiction of the competent authority namely BBMP. In the present case also if at all there is any encroachment in the Conservancy Lane then the Defendant No.3 to 6 have got every right to remove the same with due process of law. With this observation, i answer Issue No.1 in the Negative, Issue No.2 in the Negative, Additional Issue No.1 in the Negative, Additional Issue No.2 in the Negative, Additional Issue No.3 in the Negative, Additional Issue No.4 in the Negative.
16. Issue No.3 & 4 and Additional Issue No.5:- All these issues are inter-related, hence, answered in common, to avoid repetition of facts.
17. The Plaintiff has contended that the Defendants are illegally interfering with the Plaintiff's use of Schedule 'C' Property as described above. The Plaintiff has failed to prove the exact measurement of the Schedule 'C' Property and the exact measurement of the alleged encroachment 25 OS.No.25039/2013 made by the Defendant No.1 and 2 over the Schedule 'C' Property and also in view of the fact that the Plaintiff himself has encroached upon the Schedule 'C' Property as can be seen from the Commissioner Report. The Plaintiff has failed to prove the alleged interference by the Defendants. The Plaintiff has not produced any evidence to show that his water lane and sewage lane is within the property of the Defendant No.1 and 2. Under these circumstances, the Plaintiff has failed to prove the alleged interference as contended by the plaintiff in his plaint. The Defendant No.1 and 2 have also failed to prove the relief claimed by them in the counter claim and the Defendants have not produced any evidence to prove their counter claim in the present case. Under these circumstances, the relief claimed by the Defendant No.1 and 2 are not entitled for grant of mandatory injunction and temporary injunction as prayed in their counter claim. However, existence of Conservancy Lane is undisputed fact and the Defendant No.3 to 6 being the competent authority have got every right to remove any encroachment in the Conservancy Lane of the BBMP as 26 OS.No.25039/2013 admitted by both the parties in the present case. With this observation, I answer Issue No.3, 4 and Additional Issue No.5 in the Negative.
18. Issue No.5:- In view of the above discussion, I proceed to pass the following:-
ORDER The suit of the Plaintiff is hereby dismissed with no order as to costs.
However, it is hereby clear that Defendant No.3 to 6 are at liberty to take lawful action against the persons whoever encroached upon the Conservancy Lane situated between the property of the Plaintiff and Defendant No.1 and 2 as described in the Schedule 'C' Property.
Draw decree accordingly.
[Dictated to the Stenographer, transcript thereof, corrected, signed and then pronounced by me in the open Court on this the 6th day of February 2021].
[Krishnaji Baburao Patil], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.27 OS.No.25039/2013
SCHEDULE 'A' Property belonging to the Plaintiff
1. All that piece and parcel of property bearing No.9, Kenchappa Road, Frazer Town, Bangalore-5, measuring East to West 38'.10" and North to South 12'.6" bounded on:-
East by : Common Passage and Land.
West by : Shops and vacant land belonging to
Aziz Khan.
North by : Premises No.10.
South by : Premises No.8.
2. All that piece and parcel of property bearing No.10, Kenchappa Road, Frazer Town, Bangalore-5, measuring East to West 41' and North to South 23' bounded on:-
East by : 5 Feet Common Lane.
West by : H.I. Abdul Malik Khans and H.I Abdul
Wahab Khans Shops and vacant land.
North by : H.I. Abdul Wahab Khans House.
South by : Zahira Khatoons House.
28 OS.No.25039/2013
SCHEDULE 'B'
Property belonging to the Defendants 1 and 2 All that piece and parcel of property bearing No.20, Kenchappa Road, Frazer Town, Bangalore-5, measuring East to West 38'.5" and North to South 10' in all 380.5 Sq.ft, bounded on:-
East by : Common Latrine and passage.
West by : Kanchappa Road.
North by : Private Property.
South by : Conservancy Lane.
SCHEDULE 'C'
Conservancy Lane
Conservancy Lane in between Property No.9, 10 and 20, Kenchappa Road, Frazer Town, Bangalore-5, bounded on:-
East by : Property Nos.9, 10 (Property of the Plaintiff).
West by : Conservancy Lane.
North by : Property No.20 (Property claimed by
Defendants 1 and 2) and Lane.
South by : Private property.
29 OS.No.25039/2013
SCHEDULE COUNTER CLAIM
All that piece and parcel of conservancy lane situated in between the property of the Defendant Nos.1 and 2 and the alleged property of the Plaintiff, situated at Kenchappa Road, Frazer Town, Bangalore-05 and bounded as hereunder:
East by : Property claimed by the Plaintiff & others property.
West by : Conservancy Lane.
North by : Property No.20 belongs to Defendant No.2 & 1.
South by : Private Property.
ANNEXURE
1. List of witnesses examined for the plaintiff:-
P.W.1 : George Francis.
2. List of documents marked:-
Ex.P 1 : Certified copy of the Sale Deed dtd:
16.4.1968 entered into between H.I.
Abdul Mallik Khan and A. Anthony and
others.
30 OS.No.25039/2013
Ex.P 2 : Certified copy of the lease deed.
Ex.P 3 : Certified copy of the mortgage deed.
Ex.P 4 : Tax paid receipts.
Ex.P 5 & : Khata extract and khata certificate.
6 Ex.P 7 : The application issued for the sanitary connection and the order sanctioning the same along with the sketch.
Ex.P 8 & : Two legal notices.
9 Ex.P 10 : Four postal acknowledgements.
to 13 Ex.P 14 : Two returned postal envelopes.
&
15
Ex.P 16 : Reply issued by the BBMP.
Ex.P 17 : Two sheets containing two photographs.
&
18
Ex.P 19 : CD.
Ex.P 20 : Certified copy of the order passed in
OS.No.16193/2000.
Ex.P 21 : Notice issued by the BWSSB.
Ex.P 22 : Certified copy of the order passed by
the Hon'ble High Court of Karnataka in
Writ Petition No.25704/2011.
31 OS.No.25039/2013
3. List of witnesses examined for the defendants:-
None.
4. List of documents marked:-
Nil.
[Krishnaji Baburao Patil], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.32 OS.No.25039/2013
Judgment pronounced in open court vide separate judgment :-
ORDER The suit of the Plaintiff is hereby dismissed with no order as to costs.
However, it is hereby clear that Defendant No.3 to 6 are at liberty to take lawful action against the persons whoever encroached upon the Conservancy Lane situated between the property of the Plaintiff and Defendant No.1 and 2 as described in the Schedule 'C' Property.
Draw decree accordingly.
[Krishnaji Baburao Patil], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.