Bangalore District Court
Smt.Hanumakka vs The Commissioner on 28 August, 2020
IN THE COURT OF THE LXIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT:SRI. SHUBHAVEER B., B.Com.,LL.B.
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 28 TH DAY OF AUGUST, 2020
O.S.No.2857/2017
Plaintiff- Smt.Hanumakka
W/o. B Ramu,
aged about 50 years,
No.386, 1 st 'D' Cross,
Water Tank, 3 rd Stage,
West of Chord Road,
Basaveshwara Nagar,
Bengaluru -560 079.
(By Ramachandra N)
-vs-
Defendants- 1. The Commissioner,
Bruhath Bengaluru Mahanagara
Palike, Hudson Circle,
Bengaluru- 560 002
2. Additional Commissioner,
B.B.M.P, Dasarahalli Zone,
Near Bagalagunte Bus Stop
Bengaluru -560 073.
(D1 & D2-Sri.SM)
2 O.S.No.2857/2017
Date of Institution of the suit : 20.04.2017
Nature of the suit : Declaration & possession
Date of commencement of
recording of the evidence : 19.01.2018
Date on which the Judgment
was pronounced : 28.08.2020
Total Duration Years Months Days
: 03 04 08
(SHUBHAVEER B.)
XLIII Addl. City Civil & Sessions Judge ,
Bengaluru
J U D G M E N T
The above suit is filed for declaration, permanent injunction, mandatory injunction and for possession.
2. The brief facts of the case of the plaintiff are that one T.Ramaiah purchased 30 guntas of land, out of 2 acres 8 guntas, situating in Sy.No.33, present Sy.No.93, 3 O.S.No.2857/2017 situating at Mallasandra village, as per the registered sale deed, dated 06.08.1964.
3. The said T.Ramaiah sold the said 30 guntas of land, in favour of P.H.Suresh, as per the registered sale deed, dated 21.06.2002.
4. The said P.H.Suresh executed a GPA on 28.06.2004, in favour of M.G.Rudresh, who has authorised the power of attorney holder to sell the property and to take care of the property and also other related activities in respect of the said property.
5. The said Rudresh/power of attorney holder of P.H.Suresh has formed sites in the said 30 guntas of land and afterwards, sold the suit schedule property, i.e., site No.1, Khatha No.33, old assessment No.33 and present assessment No.93, measuring East to West : 30 ft. and North to South : 40 ft. with specific boundaries; to 4 O.S.No.2857/2017 Sriramanujam as per the registered sale deed, dated 17.01.2005.
6. Said Sriramanujam sold the suit schedule property in favour of the plaintiff, as per registered sale deed, dated 25.09.2016 and afterwards the plaintiff has been the owner in possession of the suit schedule property.
7. It is further alleged that the defendants, without any valid right, title and interest over the suit schedule property, claiming to be the owners of the same, forcibly entered into the suit schedule property by threatening the plaintiff and put up a compound wall unlawfully and dispossessed the plaintiff illegally. In that regard, the plaintiff addressed a letter, dated 28.03.2016, to the defendants. The plaintiff got issued a statutory notice, u/s. 482 of K.M.C Act, on 06.06.2016, which was 5 O.S.No.2857/2017 received by the defendants on 08.06.2016 and 09.06.2016 respectively. Inspite of the same, the defendants did not take necessary measures to remove the illegal construction put up by them in the suit schedule property and failed to take any action in that regard and hence the above suit is filed seeking the following reliefs-
a) declare that the plaintiff is the absolute owner of the suit schedule property as per the absolute sale deed, dated 25.09.2006;
b) pass a decree permanent injunction against the defendants not to interfere in the suit schedule property;
c) direct the defendants to remove the compound wall at their cost and risk and deliver the vacant possession of the suit schedule property to the plaintiff ;
d) to grant such other relief/s as this Hon'ble court deems fit to grant in the circumstances of the case.6 O.S.No.2857/2017
8. In the written statement of the defendants, they have denied all the allegations made in the plaint, including the issuance of statutory notice, u/s.482 of K.M.C Act, or compliance of Sec.482 of K.M.C Act. It is contended by the defendants that the court fee paid is not proper. Hence prayed for dismissal of the suit.
9. From the pleadings the following issues are framed -
1. Whether the plaintiff is the absolute owner of the suit schedule property?
2. Whether the defendants have constructed the compound wall illegally in the suit schedule property?
3. What reliefs the plaintiff is entitled to?
4. What order?
10. On behalf of the plaintiff, plaintiff got examined herself as P.W.1, who deposes in accordance with the allegations made in the plaint. Ex.P1 to Ex.P16 are marked. The husband of the plaintiff is examined as 7 O.S.No.2857/2017 P.W.2. There is no evidence on behalf of the defendants. However, Ex.D1 is marked. Arguments heard. On behalf of the plaintiff as well as defendants written arguments are filed.
11. The answers to the above issues are-
Issue No.1 In the negative
Issue No.2 In the negative
Issue No.3 In the negative
Issue No. 4 As per the final order,for the
following-
REASONS
12. Issue No.1- Even though there is no oral
evidence on behalf of the defendants and the plaintiff, as P.W.1, has deposed in accordance with the allegations made in the plaint and her husband P.W.2 has also deposed some facts, P.W.1 in her cross-examination has specifically admitted -
" I came to know how old Sy.No. 33 as been 8 O.S.No.2857/2017 changed as New Sy.No.93.
For suggesting that at the time of purchase of suit schedule Property by my vendor for Rudresh the suit schedule property was not in existence, the witness answers that she does not know.
For questioning have you got any impediment to produce the document to show that the suit property was out of old Sy.No.33 and new Sy.No.93 the witness answers that she has already handed over the documents to her Advocate. There is no hindrance to produce the said documents in this case.
For questioning have you got any hindrance to produce the layout plan or survey sketch to show where exactly the suit schedule property is situated in Sy.No.93, the witness answers that she has already furnished the same to her Counsel.
For questioning have you verified the survey sketch in respect of suit schedule property before purchasing the suit schedule property, the 9 O.S.No.2857/2017 witness answers that the same was verified by her husband.
I do not remember which portion out of Sy.No.93, measuring 2 Acre 8 guntas, was purchased by T.Ramaiah.
For suggesting that the vendor of T.Ramaiah had no title to sell the property, the witness answers that she does not know. For suggesting that T.Ramaiah was never the owner of the said 30 guntas of land the witness answers that she does not know. For suggesting that at the time of selling of 30 guntas of land by T.Ramaiah to Suresh in 2002, Ramaiah was not in possession of the said property the witness answers that she does not know. I can not say what is the Revenue land and what is the karab land in Sy.No.93 measuring 2 Acre 8 guntas. I do not know who got converted the said 30 guntas of land in old Sy.No.33 and New Sy.No.93. Neither myself nor my husband was an agriculturist. For suggesting that Rudhresh was also not an agriculturist, the witness answers 10 O.S.No.2857/2017 that she does not know. I have not verified whether Suresh was an agriculturist. For suggesting that at the time of execution of Ex.P.3, POA and Ex.P.4, Affidavit; the suit schedule property was fenced since it was a Government land, the witness answers that after purchasing the same the Government has fenced the same. After the purchase of suit schedule property by me whenever I tried to construct the fence the defendant objected the same. From the date of purchase and from 5 to 6 years from this day whenever I tried to build a building in the suit schedule property the defendants did not allow me contending that the suit schedule property was a Government land. For questioning whether your vendor has shown you any approved plan where exactly suit schedule property was located in 30 guntas of land, the the witness answers that she does not know. I have not personally verified whether the suit schedule property was situating or located in Karab land or Agricultural land or converted 11 O.S.No.2857/2017 land. It is false to suggest since the suit schedule property situates in the Karab land there can't be any property number, the witness answers that the said property belongs to us. For suggesting that after proper survey and identifying the government lands the defendants are fencing the said lands, the witness answers that she does not know. The defendants have fenced the property including the suit schedule property, as directed by the Government. It is true to suggest that the defendants have put up a board in the fenced property. ------ For questioning have you seen the documents showing payment of tax or title over the suit schedule property by the alleged predecessors in title, the witness answers that she does not know. With regard to filing of this case only my husband knows I do not know anything. With regard to Ex.P15/Notice also, I do not know anything. Only my husband knows. Personally I do not know with regard to Ex.P.5/sale deed. For suggesting that in 12 O.S.No.2857/2017 Ex.P.3/GPA, in the schedule, towards west, there is an illegal rectification, the witness answers that she does not know, only her husband knows. I do not know the name of executant of Ex.P.3/GPA, my husband knows the same. I do not know who has signed Ex.P.4/affidavit as deponent. For suggesting that there is an illegal rectification, in Ex.P.4/affidavit with regard to the amount in figures and words, the witness answers that she does not know.
It is true to suggest that I do not know anything with regard to Ex.P.6 and Ex.P.7 and my husband knows the same. I never instructed my advocate to file this case. Only my husband instructed. It is true to suggest that before going to the office of my advocate, or deposing before this court, I have not gone through Ex.P.1 and Ex.P.2. I cannot say in which month, or year, the defendants interfered with my possession of suit schedule property. I 13 O.S.No.2857/2017 enquired in the office of the defendants whether the officials who interfered with my possession of the suit schedule property were the officials of the defendants. I do not know whether I have enquired in the Survey Department to know whether suit schedule property was belonging to Government, or the defendants. For questioning have you produced survey sketch in respect of suit schedule property, the witness answers that she does not know, only her husband knows. It is false to suggest that the suit schedule property does not come within the property which was fenced by the defendants."
13. From all these admissions, it is clear that plaintiff/P.W.1 knows nothing about the facts of this case.
14. Further, P.W.2/husband of the plaintiff in his cross-examination has admitted-
"It is true to suggest that survey number 93 of 14 O.S.No.2857/2017 Mallasandra village, there is kharab land of 39 guntas. I do not know whether kharab land is belonging to the Government. --- The plaintiff got measured the extent of kharab in said Sy.No.93 and in that regard, document is filed by the plaintiff. (but no such document is filed by the plaintiff in this case.) There is no layout plan with regard to suit schedule property. There is document to show where exactly the suit schedule property is situating in one acre 9 guntas of land in suit Sy.No.93. (but no document is filed). On showing the RTC of suit Sy.No.93, the witness admits the contents of the same. Hence same is marked Ex.D.1. The witness also admits that as on today the said Sy.No.93 is standing in the name of R.Vijaya Kumar, s/o. Late Ramaiah. Neither the plaintiff, nor the predecessors-in-title of the plaintiff had (no) right, title, or interest, over the suit schedule property at any point of time. "
15. There is no layout plan in the file with 15 O.S.No.2857/2017 regard to suit schedule property. There is no document to show where exactly the suit schedule property is situating in one acre 9 guntas of land in suit Sy.No.93. P.W.2 specifically admits that as on today the said Sy.No.93 is standing in the name of R.Vijaya Kumar, s/o. Late Ramaiah, as per Ex.D1/RTC and also admits neither the plaintiff, nor the predecessors- in-title of the plaintiff had right, title, or interest, over the suit schedule property at any point of time.
16. The proviso to Or 8 Rule 5 of CPC states-
" The court may in its discretion require any fact so admitted to be proved, otherwise than by such admission."
17. Even though there is no denial with regard to the boundaries of the suit schedule property, this 16 O.S.No.2857/2017 court feels that the plaintiff has to establish the boundaries.
18. The suit schedule property is shown as property situating at Mallasandra village, bearing Khatha No.33, (old assessment No. 33 and present No.93) site No.1, measuring East to West :30 ft. and North to South : 40 ft. in total 1200 Sq.Ft with specific boundaries.
19. It is alleged in the plaint and deposed by P.W.1 that Ramaiah purchased 30 guntas of land out of 2 acre 8 guntas in old Sy.No. 33 and present Sy.No. 93, situating at Mallasandra village. Whereas Ex.P1, the registered sale deed, dated 6.8.1964, shows that 2 acres 8 guntas of land in the said Sy.No.33 was sold to said T.Ramaiah.
20. Ex.P2, the registered sale deed, dated 17 O.S.No.2857/2017 21.06.2002, shows that T.Ramaiah sold only 30 guntas of land in Sy.No.93, out of 2 acres 8 guntas, to P.H.Suresh.
21. In Ex.P3, GPA, dated 28.06.2004, alleged to be executed by P.H.Suresh in favour of M.G.Rudresh, there are over-
writings/corrections/scrolling, or tampering, in page- 3, which have not been shown as corrections. Further the said power of attorney does not show the registration number of the register maintained by the Notary. Hence the said document is a doubtful document. Further in the said Ex.P3, it is specifically shown in the schedule that site No. 1, situating in 30 guntas of land out of 2 acre and 8 guntas, in the present Sy.No.93 and old Sy.No.33 of Mallasandra village.
18 O.S.No.2857/2017
22. Ex.P4, affidavit, also shows overwritings, scrolling, or tampering. But the same are not numbered, nor the said corrections are mentioned in the said affidavit. Even both in Ex.P3-power of attorney as well as Ex.P4- affidavit, it is clearly shown that the said site No.1 was in accordance with the plan. As admitted by witnesses of the plaintiff the said document is neither produced nor marked. Ex.P5- registered sale deed, dated 17.01.2005, alleged to be executed by power of attorney holder/M.G.Rudresh of P.H.Suresh, in favour of Ramanujam, shows site No.1, in property bearing Khatha No. 33, assessment No.33 and present No.93, was sold. To show that change of old Sy.No.33, or new Sy.No.93 to assessment number no document is produced by the plaintiff.
23. Sec.7 of T.P.Act states-
19 O.S.No.2857/2017
"Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly, or in part, and either absolutely, or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force."
24. Sec.8 of T.P.Act states-
"Unless a different intention is expressed, or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof."
25. The power of attorney holder/ Rudresh was 20 O.S.No.2857/2017 not authorised to sell site No.1, bearing Khatha No. 33, old assessment No. 33, new assessment No. 93, situating at Mallasandra village. In the plaint, it is alleged that sites were formed in 30 guntas of land, in new Sy.No.33, old Sy.No.93 and out of which site No.1 was sold to the predecessor-in-title of the plaintiff/ Sri.Ramanujam. But the same recitals are not found in the sale deed - Ex.P7. Therefore Ramanujam did not get any right, title, or interest, over the suit schedule property. As per Ex.P7, the said Ramanujam sold the property, bearing Khatha No.33, old assessment No.33 and new No. 93 in which the site No.1 was situating at Mallasandra village. In that event the plaintiff also has not got any right, title, or interest, over the suit schedule property.
26. Ex.P8 and Ex.P9- encumbrance certificates, show the execution of the sale deeds. Ex.P10- eight tax 21 O.S.No.2857/2017 paid receipts show the plaintiff has paid taxes in respect of the Sy.No.93 and not in respect of the suit schedule property from 2008-2009 to 20120-13, on 21.08.2012 and even though she has also produced tax paid receipts from 2013-14 to 2014-2016, they also show the Sy.No. 93 and not the suit schedule property number.
27. At the cost of repetition, as discussed above, from the admission of P.W.1, it is clear that she does not know anything with regard to the facts of the case. The plaintiff has failed to produce the assessment extract, or Khatha extract, in respect of the suit schedule property, even though this court has specifically directed the plaintiff to produce the same, as per order sheet, dated 06.12.2019. She has not produced the sketch obtained from the authority concerned, to show where exactly the suit schedule property is situating. Further P.W.2 in his 22 O.S.No.2857/2017 cross-examination has admitted the contents of Ex.D1/RTC in respect of Sy.No.93, situating at Mallasandra village, which shows the land mesuring (2 acre 18 guntas, minus kharab 39 guntas) only 1 acre 9 guntas, standing in the name of R.Vijaya Kumar, s/o. Ramaiah. Entries in the RTC have got presumptive value. To prove the contrary, no document is produced by the plaintiff, nor there is any admission in favour of the plaintiff by the defendants, in that regard. From these aspects it is clear that till this date, the said new Sy.No.93 (old Sy.No.33) has not been converted, or sites were not formed in the said survey number. It is not known whether the plaintiff, the predecessor-in-title of the plaintiff were agriculturists. Since the plaintiff has not produced any material to show that she is an agriculturist and from her evidence it is clear that the suit schedule property is still 23 O.S.No.2857/2017 in Sy.No.93 and admitted document - Ex.D1 shows the assessment at Rs.1.81 and other columns do not show that the said property has not been converted, then as on the date of filing of the suit also the said survey number property was an agricultural property and at the cost of repetition the power of attorney/Ex.P3 and affidavit/Ex.P4 have been tampered and on that basis the subsequent sale deeds were executed it cannot be said the subsequent sale deeds, i.e., Ex.P5- registered sale deed, executed by Rudresh, as power of attorney holder of P.H.Suresh, in favour of Ramanujam, is a legal document and the registered sale deed, executed by Ramanujam in favour of the plaintiff, as per Ex.P7, is also considered to be an illegal document. In that event, it cannot be said that the plaintiff is the absolute owner of the suit schedule property and since no document is produced to show the 24 O.S.No.2857/2017 possession of the suit schedule property, by the plaintiff, the plaintiff has also failed to establish her possession over the suit schedule property. Hence this issue is answered accordingly.
28. Issue No.2- When the plaintiff has failed to prove her ownership and possession over the suit schedule property, in issue No.1 above, it cannot be said that the defendants have constructed compound wall illegally in the suit schedule property. Hence this issue is answered negatively.
29. Issue Nos.3: As per Sec.482 (1) of K.M.C Act, the statutory notice shall state the cause of action, the reliefs to be sought etc., Ex.P15, statutory notice, dated 06.06.2016, got issued by the plaintiff, does not specifically state when cause of action had arisen. In the said notice, in page-4, it is stated that only reliefs of 25 O.S.No.2857/2017 mandatory and permanent injunctions would be sought. Whereas in the present suit, as shown above, reliefs of (1) declaration, (2) permanent injunction, (3) mandatory injunction and (4) possession; are sought. Therefore, as per law, no valid statutory notice was issued.
30. As per Ex.P14, dated 23.08.2016, a representation was given by the plaintiff, to the defendants, stating that the BBMP considerng the suit schedule property as the property of BBMP, measured the same. Further, statutory notice, marked Ex.P15, was issued on 06.06.2016, which was received by the defendants on 08/09.06.2016, as per Ex.P16/postal acknowledgement.
31. AS per Sec.482 (2) of KMC Act, the suit shall be commenced within six months after the date of which the cause of action arose. When a special act shows a 26 O.S.No.2857/2017 specific period of limitation, then within that period of limitation the suit shall be filed.
32. Even though there is no contention by the defendant, as per the provisions of Limitation Act, the court has to see whether the suit is barred by limitation? For seeking the relief of declaration, the period of limitation is three years. P.W.1, in her cross- examination, in page-13, para-12, has admitted that she cannot say in which month, or year, the defendants interfered with her possession of suit schedule property. Even the plaint is silent in that regard. In para-16 of the plaint, it is stated the cause of action for the above suit arose from the date on which the defendants have entered to put up compound wall----. It appears three years prior to, even issuance of statutory notice, the defendants fenced the suit schedule property claiming, as alleged in 27 O.S.No.2857/2017 the plaint, that they were the owners of the suit schedule property. That is why, it appears, nowhere the plaintiff has disclosed when exactly the defendants put up fence over the suit schedule property. Because, P.W.1, in her cross-examination, in page-10, has specifically admitted, on 06.12.2019, " from the date of purchase and from 5 to 6 years from this date, whenever I tried to build a buliding in the suit schedule property, the defendants did not allow me contending that the suit schedule property was a Government land ." Therefore, as on the date of purchase of the suit schdule property by the plaintiff, as per Ex.P7/Sale deed, on 25.09.2006, the defendants denied the title of the plaintiff over the suit schedule property. The suit was filed on 20.04.2017. Hence this court feels that the suit is barred by limitation also. 28 O.S.No.2857/2017
33. The suit was filed on 20.04.2017. As per Sec.7 of Karnataka Court Fees and Suits Valuation Act the suit has to be valued as on the date of filing of the suit. As shown in the plaint schedule, the suit schedule property is not an agricultural land. The same is measuring 1200 Sq.ft., or 120 Sq.Mtrs., situating at Mallasandra village, within the jurisdiction of BBMP. As per the official guidelines, for the year 2017-2018, the guidelines value was Rs.8300/- per Sq.Mtr, which comes to Rs.9,96,000/-. The plaintiff has valued the suit at Rs.22,20,000/- and paid court fee of Rs.1,18,625/-. Even though the plaintiff has not calculated, or shown, separately the valuation of suit in respect of declaration, permanent injunction, mandatory injunction and for possession, as per Sec.6 of Karnataka Court Fees & Suits Valuation Act, 29 O.S.No.2857/2017 it appears to court, whatever court fee is paid is sufficient.
34. Even though on behalf of the plaintiff, the following ruling and Judgment are relied:
(1) AIR 2007 Allahabad 70 (Markande V. Sudama Chaubey & Ors.) (2) Judgment in R.F.A.No.2186/2010(DEC), dated 26.06.2013.
For the reasons discussed above, the same are not applicable to the present set of facts. Viewed from any angle, the plaintiff is not entitled to any of the reliefs sought. Hence this issue is answered negatively.
35. Issue No. 4 -Considering the special facts and circumstances of the case, there is no order as to costs. In view of the answers to issue Nos. 1, 2 and 3, the following-
30 O.S.No.2857/2017
ORDER The suit is dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 28 th day of August, 2020.) (SHUBHAVEER B.) XLIII Addl. City Civil & Sessions Judge, Bengaluru ANNEXURE I. List of witnesses examined on behalf of plaintiff-
P.W.1 - Mrs. Hanumakka
P.W.2 - Mr.B.Ramu
II. List of witnesses examined on behalf of defendants-
-NIL-
31 O.S.No.2857/2017
III. List of documents exhibited on behalf of plaintiff-
Ex.P1 Certified copy of sale deed
Ex.P2 Certified copy of sale deed
Ex.P3 General power of attorney
Ex.P4 Affidavit
Ex.P5 Sale deed
Ex.P6 Sale agreement
Ex.P7 Sale deed
Ex.P8&P9 Encumbrance certificates
Ex.P10 8 tax paid receipts,
Ex.P11&P12 Two photographs,
Ex.P13 CD,
Ex.P14 Application,
Ex.P15 Copy of legal notice,
Ex.P16 Postal acknowledgment
IV. List of documents exhibited on behalf of defendants-
Ex.D1 RTC
(SHUBHAVEER.B)
XLIII Addl.City Civil & Sessions Judge, Bengaluru 32 O.S.No.2857/2017 (Judgment pronounced in open court) ORDER The suit is dismissed.
No order as to costs.
Draw decree accordingly.