Bangalore District Court
Dr. Ananthu K.Bhat vs The State Of Karnataka on 16 June, 2016
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge.
Dated this the 16th day of June 2016
PLAINTIFFS: 1. Dr. Ananthu K.Bhat,
Son of Sri Ramachandra Bhat
Aged about 76 years
Since deceased by LRs
Smt. Vanitha K. Bhat
(plaintiff no.2)
2. Dr. Mrs. Vanitha K. Bhat
Aged about 64 years
Wife of Dr. Ananthu K. Bhat
3. Mr. A. Prakash
Aged about 40 years,
Son of Dr. Ananthu K.Bhart,
Since deceased by LRs:
3(a) Pragathi P.Bhat,
D/o A. Prakash,
Aged about 13 years,
Residing at No. 265,
17th Cross, Railway Colony
Vijayanagar I Stage,
Mettagalli, MYSORE-570 016
And represented by her mother
And natural guardian
K.PBhagyalakshmi.
4. Mrs. K.P.Bhagyalakshmi,
Aged about 35 years,
Wife of A.Prakash
2 CT0028_O.S._7736_2009_Judgment_
.
5. Mrs. U.B .Seetharathna Aged about 83 years, Wife of Dr. U.Sanjeev Rao (late) Plaintiffs 3 to 5 represented by Their PA holder Sri Ananthu K.Bhat
-1st plaintiff.
All residing at No. 265, 17th Cross, Railway colony, Vijayanagar I Stage, Mettagvalli, MYSORE-570 016.
6. M/s Vasco Woods Pvt. Ltd., No. 06 of Deepanjalinagara Extension, Corporation Division No.41, Mysore Road, Bangalore.
[By Sri S.V.Bhat, Advocate] /v e r s u s/ DEFENDANTS: 1. The State of Karnataka, Ministry of Forests and Environment, Vidhana Soudha, Bangalore-560 001 Represented by its Secretary,
2. The Chief Conservator of Forests (General) Department of Forests, Bangalore Circle, Aranya Bhavan, 18th Cross, Malleshwaram, BANGALORE-560 055.
3. The Chairman, M/s Lake Development Authority Parisara Bhavan, 2nd Floor, #49, Church street, Bangalore-560 001.
3 CT0028_O.S._7736_2009_Judgment_ .
4. The Member Secretary, Chief Executive Officer, M/s Lake Development Authority Parisara Bhavan, 2nd Floor, #49, Church Street, Bangalore-560 001.
5. Bangalore Metropolitan Task Force, N.R.Square, Corporation Building, Bangalore-560 001.
By Inspector General.
D1 to D3 - By DGP, D4- By Sri HSS, Advocate D5 - By Sri KVN, Advocate Date of institution of the : 3/12/2009 suit Nature of the suit : For injunction Date of commencement of : 19/8/2013 recording of the evidence Date on which the : 16/6/2016 Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
6 6 13
(S.H. Hosagoudar)
XXVII ACCJ: B'LORE.
Plaintiffs have filed this suit against defendants for the relief of Permanent Injunction restraining the defendants or their agents, servants from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs. 4 CT0028_O.S._7736_2009_Judgment_ .
2. In brief the plaintiff's case is as under:
That the plaintiffs submits that, originally one H.C.Puttaswamy who are the tenant in occupation of property bearing survey no. 18/1, 19 and 19/1 measuring 21 guntas, 2 acres 17 guntas and 1 acre 21 guntas respectively situated at Divitige Ramanahalli, Kengeri Hobli, Bangalore south taluk situated within Pattanagere village panchayath limit under one Smt. V. Menon. Pursuant to his application for grant of occupancy rights in respect of the aforesaid land, the Land Tribunal Bangalore has granted occupancy rights in his favour. After the property bearing sy.no. 19/1 has come within the village limit, H.C.Puttaswamy sold one site with 10 square building thereon having gramtana house list katha no. 250/450/12 of Divitigere Ramanahalli which is also called as Deepanjali Nagara in favour of one M.B.Shivakumar to an extent measuring East to West on northern side 92 feet, southern side 122 feet and north to south on the eastern side 56 feet and western side 60 feet under registered sale deed dated 29/1/1991 and put M.B.Shivakumar in possession of 5 CT0028_O.S._7736_2009_Judgment_ .
the same. Katha of the said property was also changed in the name of Shivakumar before authorities concerned. Later, Shivakumar sold the same in favour of plaintiffs herein under registered sale deed dated 3/7/2000 along with all development made by him and put them into possession of the same. The katha of the property was made in the name of plaintiffs and they have been paid taxes to the Corporation. The plaintiffs have also paid betterment charges to the Bangalore Mahanagara Palike. The suit schedule property falls within the property bearing no. 19/1. Either plaintiffs or their predecessor in title have never encroached upon any other land. It is submitted that, on the western boundary of the suit schedule property, there is a private site and however same property bearing sy.no. 32 belonging to the State Government. There is a tank in the said survey number. The Forest Department has enclosed entire area, a portion of it with a compound wall and portion of it barbed wire fence. This fence is bifurcated the line of plaintiff's property and property bearing survey no. 32. The plaintiff has left 22 feet vacant space on 6 CT0028_O.S._7736_2009_Judgment_ .
the western side of their property i.e., after the fence. In the rest of the property, the building measuring 40 x 90 feet is existing which is being used as godown of plywood by the nephew of first plaintiff. The plaintiffs have been enjoying the same without any hindrance. On 18/1/2001, at 4 p.m., some official from the Forest Department came near the schedule property and informed that plaintiffs and their neighbours have encroached upon portion of survey no. 32 belonging to Forest Department and asked them to produce documents for verification. Despite perusing the documents, on 19/1/2001, they came near the suit schedule property and forcibly entered inside the schedule property and started marking on the wall of property as KFD. It was also informed that they would demolish the building to the extent of marking.
Being aggrieved by the said illegal act, some of the neighbours jointly filed Writ Petition in W. P.No. 2769/2001 before Hon'ble High Court of Karnataka and obtained interim order against Forest Department from demolishing the existing structure. Later on, Hon'ble High Court of Karnataka has disposed off said 7 CT0028_O.S._7736_2009_Judgment_ .
Writ Petition holding that, since dispute is of civil in nature, the remedy would lie only before Civil Court. Thereafter, one of the neighbour Smt. Vijayalakshmi has filed suit in O.S.6837/2001 before this Court for Permanent Injunction against the Forest Department and Government of Karnataka and said suit came to be decreed. However, again during October 2006 the Forest Department renewed the threat by issuing notice to the first plaintiff through Range Forest Officer, Bangalore stating that first plaintiff has encroached upon portion of Sy.no. 32 and hence proceedings has been registered against him. According to Range Forest Officer, first plaintiff has encroached portion of property measuring 8 x 50 feet in sy.no. 32 without there being no basis or holding joint survey of plaintiff's property and survey no. 32. Now, plaintiffs came to know that Government of Karnataka had issued notification to form the defendant society for the purpose of preserving and maintaining the all tanks in and around the Bangalore.
8 CT0028_O.S._7736_2009_Judgment_ .
Recently, defendants have leveled the adjacent land and were laying walking tracks and on 20/11/2009, the officials who have come to inspect the same, have threartened that they would encroach upon plaintiffs property and forcibly demolish the portion of their shed through 5th defendant over which defendants have no right, whatsoever. Hence this suit.
3. In response to the suit summons issued by the court, defendants appeared through their counsel and defendants 1 to 3 filed joint written statement; and whereas defendants 4 and 5 filed separate written statement. In brief, contents of the written statement filed by the defendants 1 to 3 is as under
The suit filed by the plaintiffs is false and same is not maintainable under law. It is false to contend that the fence is the bifurcating line of plaintiffs property and property bearing sy.no. 32. It is submitted that plaintiff's property is within the area of land bearing sy.no. 32 and plaintiffs have encroached upon a portion of sy.no. 32 measuring 8 x 53 feet and above said property is belongs to Forest Department. 9 CT0028_O.S._7736_2009_Judgment_ .
The plaintiffs are not in lawful possession and enjoyment of the suit schedule property. The Forest Department officially surveyed the lake for tankbed area through their official surveyor in respect of survey no. 32 and survey report shows that plaintiffs have encroached survey no. 32 and entire property of plaintiffs not come under survey no. 19/1.
It is submitted that the question of ownership is not in dispute in respect of sy.no.19/1. It is the dispute is only to the extent of suit schedule property measures 8 x 53 feet which falls in survey no. 32. Since plaintiffs have encroached the property belongs to Forest Department, they are not entitled for the Permanent Injunction as sought for. On these grounds, defendants 1 to 3 pray for dismissal of the suit.
4. In brief the contents of the written statement filed by defendant no.4 are as under:
The averments made in the plaint are absolutely false and plaintiffs are put to strict proof of the same.
The plaintiffs are not the absolute owners and in 10 CT0028_O.S._7736_2009_Judgment_ .
possession of the suit schedule property. It is submitted that plaintiffs have encroached upon by putting up industrial shed on survey no. 32 which belongs to State Government. The said survey number is standing in the name of Government. The plaintiffs have not come to the court with clean hands. The plaintiffs have encroached the property belongs to Government. Hence, they are not entitled for the relief of Permanent Injunction. On these grounds defendant no.4 prays for dismissal of the suit.
5. In brief the contents of the written statement filed by defendant no.5 are as under:
The averments made in the plaintiff about plaintiff's title and possession are not admitted. There is no approved layout plan produced by the plaintiff revealing the identity of property. The suit schedule property is not belongs to plaintiffs and they are not in possession of the same. Hence, simple suit for injunction without seeking the relief of declaration is not maintainable. There is no cause of action for the 11 CT0028_O.S._7736_2009_Judgment_ .
suit. On these grounds, defendant no.5 prays for dismissal of the suit.
6. During the pendency of the suit, plaintiff no.3 was dead and his legal representative was brought on record.
7. On the basis of the pleadings of the parties, my predecessor in the office has framed following issues:
(1) Whether the plaintiffs prove that their lawful possession and enjoyment of the suit schedule property as on the date of the suit?
(2) If so, whether the plaintiffs further prove the alleged interference into their peaceful possession and enjoyment of the suit schedule property by the defendants as alleged in the plaint?
(3) Whether defendants 1 to 5 proves that the present suit is not maintainable as contended in the written statement?
12 CT0028_O.S._7736_2009_Judgment_ .
(4) Whether the plaintiffs are
entitled for the reliefs of
perpetual injunction as
claimed?
(5) What decree or order?
8. In this case plaintiffs in order to prove their case, among them plaintiff no.2 partly examined as PW.1. Later, he did not appear before the court. Advocate for plaintiff filed memo to discard the part of evidence of PW.1 and sought permission to examine plaintiff no.6. As per memo of the plaintiff, part of evidence of PW.1 was discarded. In this case, plaintiff no. 6 examined himself as PW.2 and produced in all 20 documents which are marked as Ex.P1 to Ex.P20 and plaintiffs closed their side of evidence. Defendants have not adduced any evidence.
9. Heard the arguments on both the sides and perused entire records of the case.
10. My findings on the above issues are as under:
Issue No. 1) ............ In the negative; Issue No. 2) ............ In the negative; 13 CT0028_O.S._7736_2009_Judgment_ .
Issue No. 3) ............ In the affirmative; Issue No. 4) ............ In the negative Issue No. 5) ............ As per final order for the following:
11. ISSUE NO.1 AND 2: Now I will consider both the issues together as they are interconnected with each other and evidence is common and for the sake of brevity.
12. It is the case of the plaintiffs that they are in lawful possession and enjoyment of the suit schedule property and defendants without having any right, title and interest over the suit schedule property are trying to interfere in their peaceful possession and enjoyment of the suit schedule property.
13. In this case, defendants appeared through their counsel and filed written statement denying the case of plaintiff. Defendants contended that, plaintiffs have encroached upon portion of sy.no.32 which is belongs to Forest Department measuring 8 x 53 feet. 14 CT0028_O.S._7736_2009_Judgment_ .
14. Further, defendants contended that in this case there is no dispute with regard to ownership of sy.no. 19/1 but there is a dispute only to the extent of suit schedule property measuring 8 x 53 feet which falls in sy.no. 32 and sy.no.32 is belongs to Forest Department and plaintiffs are not entitled for the relief of Permanent Injunction as they have not come to the court with clean hands.
15. In this case, plaintiff no.6 examined as PW.2. In this case, earlier plaintiff no.2 partly examined himself as PW.1, but he did not appear before the court for further evidence. Hence, advocate for plaintiff filed memo to discard the part of evidence of PW.1. As per memo, the part of evidence of PW.1 was discarded by this court. Thereafter, plaintiffs got examined plaintiff no.6 as PW.1. He filed affidavit evidence in lieu of his examination-in-chief. In his examination-in-chief, he reiterated the plaint averments. He produced in all 20 documents which are marked as Ex.P1 to Ex.P20. In the cross- examination, he stated that, he is in possession of the 15 CT0028_O.S._7736_2009_Judgment_ .
suit schedule property as a tenant. He further stated that Dr.Ananthu Bhat and others are the owners of the suit schedule property. He further stated that they have not surveyed the suit schedule property. In this case, defendants have not adduced any evidence.
16. I have perused entire evidence on record. It is an admitted fact that plaintiff no.1 to 5 are the owners of sy.no.19/1. It is also admitted fact that sy.no.32 belongs to Government i.e., Forest Department. According to plaintiffs, Forest Department has enclosed entire area, a portion of it with a compound wall and portion of it, barbed wire fence and this fence is the bifurcating line of the plaintiffs property and property bearing sy.no.32. But, defendants denied the above said contention of the plaintiffs. Defendants contended that, plaintiffs have encroached survey no. 32 measuring 8 x 53 feet and said property belongs to Government and comes in survey no. 32.
17. In this case, there is no dispute that, plaintiffs are the owners of portion of property in 16 CT0028_O.S._7736_2009_Judgment_ .
sy.no.19/1. It is also admitted fact that defendants Government is the owner of sy.no.32 which is a lake. But, in this case, there is a serious dispute with regard to identity of property. According to defendants, plaintiffs have encroached property measuring 8 x 53 feet in sy.no. 32. Hence, it is for the plaintiffs to establish that they have not at all encroached property measuring 8 x 53 feet in sy.no.32.
18. It is also important to note that the plaintiffs in para no.8 of their plaint itself contended that, they have not encroached sy.no.32 measuring 8 x 53 feet. When plaintiff themselves contended that they have not encroached property measuring 8 x 53 feet in sy.no.32, it is for the plaintiffs to establish that, they have not encroached Government property as contended by them. Admittedly, sy.no.32 is situated towards western side of their property.
19. In this case, there is a serious dispute with regard to encroachment of survey no. 32. Under such circumstances, it is for the plaintiffs to prove that they 17 CT0028_O.S._7736_2009_Judgment_ .
are in lawful possession and enjoyment of the suit schedule property and they have not encroached any portion of survey no.32.
20. In this case, plaintiffs have not at all got surveyed their property to show that, they have not encroached the survey no. 32 as contended by defendants. Further, plaintiffs also not produced any survey sketch to show that, they have not encroached survey no.32 as contended by defendants.
21. During the pendency of this case also, plaintiffs have not taken any steps to get appointed the surveyor as a Court Commissioner to measure the suit schedule property and to identify and demarcate the suit schedule property in order to establish that they have not encroached survey no. 32 which belongs to Government. Hence, in the absence of survey report, it cannot be said that, plaintiffs have not encroached the survey no.32 belongs to Government.
18 CT0028_O.S._7736_2009_Judgment_ .
22. In this case, plaintiffs contended that, defendants came to the suit schedule property on 19/1/2001 and forcibly entered inside the suit schedule property and started marking on the wall of property as KFD. The averment made in the plaint itself goes to show that there is a dispute with regard to encroachment of property of survey no.32. But, in this case, plaintiffs have not adduced any cogent evidence on record to show that they have not at all encroached survey no.32.
23. In this case, even though defendants have appeared through their counsel and filed written statement contending that plaintiffs have encroached survey no.32 to the extent of 8 x 53 feet, but they have not adduced any evidence. However, it is for the plaintiffs to establish that, they are in lawful possession of the suit schedule property and they have not encroached any property belongs to Forest Department. When plaintiffs have approached the court it is for them to prove their case by adducing 19 CT0028_O.S._7736_2009_Judgment_ .
cogent evidence and they should not depend upon the weakness of the other side.
24. In this case, plaintiffs in their plaint itself contended that they have not at all encroached survey no.32, then it is for the plaintiffs to establish that they have not encroached survey dno.32 by adducing cogent evidence. But, in this case plaintiffs have not at all adduced any cogent evidence on record to show that suit schedule property is situated in survey no. 19/1 and it is not situated in survey no.32.
25. In this case, plaintiffs have not produced any documentary evidence such as survey report to show that they have not encroached survey no.32 and suit schedule property is not situated in survey no.
32.
26. In this case, plaintiff no.6 examined himself as PW.2. It is pertinent to note that, PW.2 in his cross-examination stated that, he is in possession of the suit schedule property as a tenant. But, in this case, PW.2 has not produced any documentary 20 CT0028_O.S._7736_2009_Judgment_ .
evidence to show that he is a tenant in respect of the suit schedule property. In the plaint also, it is nowhere averred that plaintiff no.6 is the tenant under plaintiff no.1 to 5 in respect of suit schedule property. According to plaintiff no.1 to 5, they are the owners and in possession of the suit schedule property. But, in this case, plaintiff no.1 to 5 who are said to be the owners of the suit schedule property did not enter into witness box and not stated the facts on oath that they are in lawful possession and enjoyment of the suit schedule property and they have not encroached survey no.32 which belongs to Government. Hence, I draw adverse inference against plaintiffs 1 to 4.
27. It is also important to note that, in this case, at the earlier stage, even though plaintiff no.2 partly examined himself as PW.1 but he did not appear for further evidence and his evidence was discarded as per the memo filed by the advocate for the plaintiff. PW.2 is not the General Power of Attorney holder of plaintiff no.1 to 5. In the plaint also, it is nowhere averred that plaintiff no.6 (PW.2) is 21 CT0028_O.S._7736_2009_Judgment_ .
the tenant in respect of the suit schedule property. Hence, PW.2 is not a competent person to give evidence on behalf of plaintiff no.1 to 5 who are said to be the owners of suit schedule property.
28. As already stated, in this case plaintiffs have not got measured the suit schedule property through Surveyor to show that they have not encroached upon survey no.32 as contended by them in their plaint itself. In this case, when plaintiffs themselves contended that they have not encroached the portion of survey no.32, then it is for the plaintiffs to adduce cogent evidence to prove that they have not encroached survey no.32 and suit schedule property is situated in survey no. 19/1.
29. As already stated plaintiffs also during the pendency of this suit not got appointed Surveyor as a Court Commissioner to measure the property to show that they have not encroached upon survey no. 32. Hence, plaintiffs have failed to prove that, they have not encroached the survey no. 32. Under such circumstances, it cannot be said that plaintiffs are in 22 CT0028_O.S._7736_2009_Judgment_ .
lawful possession and enjoyment of the suit schedule property. Further, it cannot be said that suit schedule property is situated in survey no. 19/1.
30. In this case, plaintiffs have not adduced any cogent evidence to show that suit schedule property is not at all included in survey no. 32 and they have not encroached any portion of survey no.32. Plaintiffs have failed to discharge their burden to show that suit schedule property is situated in survey no. 19/1 and they have not encroached any portion of survey no.32.
31. In this case, plaintiffs have produced in all 20 documents which are marked as Ex.P1 to Ex.P20. Ex.P1 and Ex.P2 are the sale deeds; Ex.P3 to Ex.P7 are the tax paid receipts; Ex.P8 is the copy of the notice; Ex.P9 is the assessment extract; Ex.P10 is the order copy passed in Writ Petition; Ex.P11 is the notice; Ex.P12 is the copy of the order passed in Criminal Petition; Ex.P13 and Ex.P14 are the copy of the legal notice; Ex.P15 is the General Power of Attorney; Ex.P16 is the Village Map; Ex.P17 is the 23 CT0028_O.S._7736_2009_Judgment_ .
Sketch; Ex.P18 is the RTC extract; Ex.P19 is the copy of the M.R; and Ex.P20 is the copy of the Gazette Notification.
32. The evidence on record shows that plaintiffs have purchased portion of property in survey no. 19/1. But, in this case, there is no serious dispute with regard to ownership of property bearing survey no. 19/1, but there is a serious dispute with regard to encroachment of property in survey no.32. Under such circumstances, from the documents produced by the plaintiffs, it cannot be said that, plaintiffs have not encroached any portion of survey no.32. The documents produced by the plaintiffs are pertaining to survey no. 19/1.
33. In this case, there is no dispute that plaintiffs are the owners of portion of property in survey no. 19/1. But, in this case, defendants contended that, plaintiffs have encroached survey no.32 measuring 8 x 53 feet which is situated towards western side of the property of the plaintiff. Plaintiffs themselves in their plaint contended that they have 24 CT0028_O.S._7736_2009_Judgment_ .
not encroached survey no.32. But, plaintiffs have not adduced any cogent evidence on record to show that they have not encroached survey no.32. From the documents produced by the plaintiffs, it cannot be said that the plaintiffs have not encroached upon survey no.32.
34. In this case, plaintiffs have not produced any latest survey sketch regarding their possession and enjoyment of the suit schedule property and also not adduced any cogent evidence on record to show that suit schedule property comes under survey no. 19/1. The evidence of PW.2 is not supported by any documentary evidence. Hence, self-serving interested testimony of PW.2 cannot be accepted.
35. In this case, plaintiffs also not produced any cogent evidence on record to show that there is a bifurcating fence in between their property and property of the defendants. In this case, plaintiffs also not produced any photographs to show that there is a bifurcating fence in between their property and property of survey no.32. Hence, in the absence of 25 CT0028_O.S._7736_2009_Judgment_ .
cogent evidence, it cannot be said that there is a bifurcating fence in between property of plaintiffs and property of defendants. Under such circumstances, it cannot be said that plaintiffs are in lawful possession and enjoyment of the suit schedule property as on the date of suit. When there is a serious dispute in respect of the encroachment of survey no.32 which belongs to Government, then plaintiffs ought to have adduced cogent evidence to establish that, they have not encroached any portion of survey no.32. But, plaintiffs failed to prove the same. Moreover, plaintiffs 1 to 5 who are said to be the owners of portion of property in survey no.19/1 did not enter into witness box and not adduced any evidence to show that they are in lawful possession and enjoyment of the suit schedule property and they have not encroached survey no.32 and suit schedule property is comes under survey no. 19/1.
36. Plaintiffs contended that, one neighbour of their property by name Smt.Vijayalakshmi had filed suit in O.S.No.6837/2001 before this court for 26 CT0028_O.S._7736_2009_Judgment_ .
Permanent Injunction against Forest Department and Government of Karnataka and said suit came to be decreed.
37. In this case, plaintiffs also produced copy of the Judgment of the said suit. It is pertinent to note that, the said suit is different from the present suit. In this case, there is a serious dispute with regard to encroachment of Government property. Hence, it is for the plaintiffs to prove that they have not encroached Government property. Under such circumstances, the Judgment and Decree passed in O.S.6837/2001 is not helpful to the case of plaintiffs and they cannot claim their right over the property on the basis of said Judgment and Decree which is different from the present case.
38. In this case, plaintiffs have not produced any survey sketch or report in respect of disputed property. Hence, in the absence of cogent evidence, it cannot be said that, plaintiffs are in lawful possession and enjoyment of the suit schedule property as on the date of suit. The pleadings and evidence are not 27 CT0028_O.S._7736_2009_Judgment_ .
clearly shows that plaintiffs are in lawful possession and enjoyment of the suit schedule property. When plaintiffs are not in lawful possession and enjoyment of the suit schedule property, the question of interference by the defendants does not arise at all. Plaintiffs failed to prove issues 1 and 2. Accordingly, I answer issues 1 and 2 in the negative.
39. ISSUE NO.3: In this case, defendants contended that suit of the plaintiff is not maintainable for the relief of Permanent Injunction without seeking the relief of declaration. In this case plaintiffs contended that they are the absolute owners of suit schedule property and suit schedule property comes in survey no.19/1. Defendants contended that plaintiffs have encroached survey no.32 measuring 8 x 53 feet and portion of the suit schedule property belongs to Government.
40. In this case, plaintiffs themselves in their plaint contended that, they have not at all encroached survey no.32 which is situated towards western side of the property. It is an admitted fact that plaintiffs 1 28 CT0028_O.S._7736_2009_Judgment_ .
to 5 are the owners of portion of property in survey no.19/1 and defendants are the owners of survey no.32.
41. In this case defendants contended that plaintiffs have encroached survey no. 32 to the extent of 8 x 53 feet and portion of the suit schedule property is also comes under survey no.32. But, in this case, plaintiffs have not sought for the relief of declaration to prove that they are the owners of the suit schedule property.
42. In this case, even though defendants admitted that plaintiffs are the owners of portion of property in survey no. 19/1, but they contended that plaintiffs have encroached survey no. 32 to the extent of 8 x 53 feet and portion of the suit schedule property comes under survey no. 32. Under such circumstances, plaintiffs ought to have filed this suit for the relief of declaration in respect of their right over the suit schedule property. But, in this case, plaintiffs have not sought for the relief of declaration in respect of the suit schedule property. Therefore, the 29 CT0028_O.S._7736_2009_Judgment_ .
simple suit for bare injunction without relief of declaration is not maintainable in the facts and circumstances of the case. Defendants proved issue no.3. Accordingly, I answer issue no.3 in the affirmative.
43. ISSUE NO.4: In this case, plaintiffs sought for the relief of Permanent Injunction restraining the defendants from interfering with their lawful possession and enjoyment of the suit schedule property. While answering issue no.1, it is held that, plaintiffs have failed to prove their lawful possession over the suit schedule property. While answering issue no.2, it is held that, plaintiffs also failed to prove alleged interference by the defendants. Further, while answering issue no.3, it is held that, the present suit for bare injunction without the relief of declaration is not maintainable. In this case, plaintiffs have utterly failed to prove their lawful possession over the suit schedule property. It appears from the evidence on record, plaintiffs have encroached portion of the survey no. 32 which is belongs to Government. The 30 CT0028_O.S._7736_2009_Judgment_ .
plaintiffs have not come to the court with clean hands. Therefore, the plaintiffs are not entitled for the relief of Permanent Injunction as sought for. Accordingly, I answer issue no.4 in the negative.
44. ISSUE NO.5: From my above discussions and reasoning, the suit of the plaintiff is liable to be dismissed. In the result, I pass the following:
The suit of the plaintiffs is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
*** [Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 16th day of June 2016.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
31 CT0028_O.S._7736_2009_Judgment_ .
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Dr.Vanitha K.Bhat -Discarded PW.2 Suresh Jenkal
2. List of witnesses examined on behalf of the Defendant/s: NIL.
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Two original sale deeds dated And 3/7/2000 and 29/1/1991 Ex.P 2 Ex.P 3 To 3 Tax paid receipts Ex.P 7 Ex.P 8 Notice dated 24/5/2002 Ex.P 9 Assessment extract Ex.P 10 Certified copy of the order passed in W.P.No.2769-2772/01 Ex.P 11 Notice dated 17/8/2008 Ex.P 12 Certified copy of the Crl.Petn.No.1042/09 Ex.P 13 And Office copies of legal notices Ex.P 14 Ex.P 15 General Power of Attorney Ex.P 16 Certified copy of village map Ex.P 17 Certified copy of sketch Ex.P 18 Certified copy of RTC extract Ex.P 19 Certified copy of mutation register extract Ex.P 20 Certified copy of Gazette notification 32 CT0028_O.S._7736_2009_Judgment_ .
4. List of the documents marked for the defendants:
NIL.
[S.H. HOSAGOUDAR] XXVII Additional City Civil Judge, BANGALORE.
30/04/2016 P-SVB D1 to 3- DGP D4-HSS D5-KVN For reply arguments, Prays time.
Call on 01/06/2016 XXVII Addl.City Civil & Sessions Judge, Bengaluru.
01/06/2016 P-SVB D1 to 3- DGP D4-HSS D5-KVN For reply arguments, Sri.Suresh DGP filed memo of appearance for defendant No.1 to 3.
Heard the further arguments on both sides. For judgment Call on 16/06/2016.
XXVII Addl.City Civil & Sessions Judge, Bengaluru. 16/06/2016 P-SVB D1 to 3- DGP D4-HSS D5-KVN For judgment, 35 CT0028_O.S._7736_2009_Judgment_ .
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiffs is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[S.H.HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
36 CT0028_O.S._7736_2009_Judgment_ .
37 CT0028_O.S._7736_2009_Judgment_ .
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