Bangalore District Court
Mr.A.H.Hanumanthaiah vs ) J.W.R.Chinnaiah on 24 October, 2016
IN THE COURT OF THE XII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.27), AT BENGALURU
PRESENT:SRI. K.S.THIMMANNACHAR, B.Sc.,LL.B.
XII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU .
DATED: THIS THE 24TH DAY OF OCTOBER 2016
O.S.No.4513/2005 C/W. O.S.No.4855/2006
O.S.No. 4513/2005
Plaintiffs: Mr.A.H.Hanumanthaiah,
Since deceased by his L.Rs.
(i) Smt.Rajamma
w/o.late A.H.Hanumanthaiah,
Died on 07.02.2013
Since deceased by her
LR's who are already on
record as plaintiff
No.(ii) to (v)
(ii) Mr. H.R.Prabhakar
s/o. late A.H.Hanumanthaiah,
aged about 51 years,
R/at. No.38 10th cross,
Gangothrinagar
SIT Extension, Tumkur.
(iii) Mrs. H.R.Shakunthala
d/o. late A.H.Hanumanthaiah,
aged about 48 years,
R/at.no.80 feet road,
2 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
Behind M/s.Miriji Petrol
Bunk, Tumkur.
(iv) Mr.H.R.Bharathi
d/o. late A.H.Hanumanthaiah,
aged about 43 years,
R/A. No.95, Prashantha,
1st cross, Kirloskar Layout,
Basaveshwaranagar,
Bengaluru -79.
(v) Mrs. H.R.Latha
d/o. late A.H.Hanumanthaiah,
aged about 41 years,,
R/A.Opp.Nursing Ladies
Hostel, Chethana Extension
Batavadi, Tumkur.
(By Sri.T.Seshagiri Rao,
Advocate, Advocates)
-VS-
Defendants: 1) J.W.R.Chinnaiah
s/o. Mr.S.Chinnaiah
Major in age.
2) Mrs. Nijinka
d/o. Mr.J.W.R.Chinnaiah,
major in age.
Both are residing
At No.287, House List
No.242/A, MES Road,
(Jalahalli Rod) Jalahalli,
Yeshwanthpura Hobli,
3 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
Bengaluru North Taluk
Bengaluru.
(By KESVY & Co.
Advocates)
Date of Institution of the suit : 17/06/2005
Nature of the suit : Declaration, ejectment & Injunction
Date of commencement of
recording of the evidence : 07/04/2010
Date on which the Judgment was
pronounced : 24/10/2016
Total Duration Years Months Days
: 11 04 07
O.S.No.4855/2006
Plaintiffs: Mr.A.H.Hanumanthaiah,
Since deceased by his L.Rs.
(i) Smt.Rajamma
w/o.late A.H.Hanumanthaiah,
Died on 07.02.2013
Since deceased by her
LR's who are already on
record as plaintiff
No.(ii) to (v)
(ii) Mr. H.R.Prabhakar
s/o. late A.H.Hanumanthaiah,
aged about 51 years,
R/at. No.38 10th cross,
Gangothrinagar
SIT Extension, Tumkur.
4 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
(iii) Mrs. H.R.Shakunthala
d/o. late A.H.Hanumanthaiah,
aged about 48 years,
R/at.no.80 feet road,
Behind M/s.Miriji Petrol
Bunk, Tumkur.
(iv) Mr.H.R.Bharathi
d/o. late A.H.Hanumanthaiah,
aged about 43 years,
R/A. No.95, Prashantha,
1st cross, Kirloskar Layout,
Basaveshwaranagar,
Bengaluru -79.
(v) Mrs. H.R.Latha
d/o. late A.H.Hanumanthaiah,
aged about 41 years,,
R/A.Opp.Nursing Ladies
Hostel, Chethana Extension
Batavadi, Tumkur.
(By T.Seshagiri Rao,
Advocates)
-VS-
Defendants: 1) Mrs. Mary Maagdalane Raja,
Aged 54 years,
w/o. Mr.V.Raja
2) Mr.V.Raja
Aged about 56 years,
Father's name not known
To the plaintiff
5 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
Both are residing at No.1
2nd Main Road,
Bahubalinagar,
M.E.S.road
(Ring Road),
Jalahally, Bengaluru
(Defs.KESVY & Co.,
Advocates)
Date of Institution of the suit : 09/06/2006
Nature of the suit : Declaration, Ejectment & Injunction
Date of commencement of
recording of the evidence : 07/04/2010
Date on which the Judgment was
pronounced : 24/10/2016
Total Duration Years Months Days
: 10 04 15
(K.S.THIMMANNACHAR)
XII Addl. City Civil & Sessions Judge,
Bengaluru
J U D G M E N T
These two suits are filed by the plaintiffs to declare that the plaintiff is the absolute owner of plaint 'A' schedule property having purchased the same under a registered Sale Deed dated.14.12.1964 from Seetharam who was erstwhile owner and direct the defendants to quit, vacate and deliver vacant possession of the 'B' schedule property 6 O.S.No.4513/2005 C/W. O.S.No.4855/2006 to the plaintiff in the event this court comes to the conclusion that the plaintiff is not in possession of the same and direct the defendants by a decree of mandatory injunction to demolish the compound wall on the 'B' schedule property which is unauthorised and for permanent injunction restraining the defendants their agents interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule 'A' & 'B' properties.
2. The case of the plaintiff in O.S.No.4513/2005 is that the plaintiff is the owner of vacant site bearing site No.1, house list No.223 formed out of Sy.No.71/1, Jalahalli village, Yeshwanthpura Hobli, Bengaluru North Taluk, Bengaluru measuring East to West:38+48/2 ft. and North to South: 39+64/2 ft. having purchased from the previous owner under a registered Sale Deed dated.14.12.1964. The khatha stands in the name of the plaintiff. It is stated that during the year 1987, the afore said property was within the limits of the then Jalahalli Panchayath and the said Panchayath attempted to form a road and drainage illegally on the property of the plaintiff. Immediately, the plaintiff filed a suit against the Jalahalli Panchayath in O.S.No.3061/1987 before this court for the relief of declaration and 7 O.S.No.4513/2005 C/W. O.S.No.4855/2006 injunction and the same came to be decreed on 25.10.1989 declaring that the plaintiff is the absolute owner of the aforesaid property and the Jalahalli village Panchayath was restrained from disturbing or interfering with the peaceful possession and enjoyment of the plaintiff over the same. It is stated that subsequent to the passing of the Judgment & Decree, the plaintiff filed an Execution case No.859/1990 and in the said case, the Bailiff came to the spot of the aforesaid property on 1.2.1992 and handed over the vacant possession to the plaintiff as per the court orders.
3. It is stated that subsequent to the delivery of the vacant possession of the aforesaid property through court, the plaintiff was in peaceful possession and enjoyment of the same. Thereafter, the then Jalahalli Village Panchayath authorities and the Asst. Commissioner, Bengaluru Sub-Division approached the plaintiff and requested him to give eastern portion of the aforesaid property to form a road and a drainage for public purpose with the proposal and assurance that they would give alternative site measuring 30x56 ft. out of the site bearing house list No.182/2 formed out of Sy.No.1/1 of Jalahalli village. It is stated that the above panchayath has passed a resolution on 8 O.S.No.4513/2005 C/W. O.S.No.4855/2006 29.06.1992 to that effect. It is stated that on the humanitarian consideration, the plaintiff gave an open space in his property on the eastern side to the extent of 1254.53 Sq.ft to Panchayath authorities agreeing to take the alternative site as stated above.
4. It is stated that subsequent to the handing over the eastern portion of the aforesaid property to the panchayath authorities and while the process for allotment of alternative site was pending, the entire panchayth area was amalgamated to Dasarahalli Notified area and thereafter, it has been amalgamated to the Bengaluru City Corporation. In view of this development, the changes took place, no alternative site was allotted by the so called Bengaluru City Corporation. The plaintiff has filed a Writ Petition in W.P.No.26061/2004 and the Hon'ble High Court of Karnataka has directed the Bengaluru City Corporation to consider the same within three months.
5. It is stated that the remaining western portion of the aforesaid site measuring 13.9+18/2 ft. x 54.6+64/2 ft. is in peaceful possession and enjoyment of the plaintiff and the same is described in 'A' schedule. Defendant No.1 herein and one Mrs.Mary Magadlone Raja 9 O.S.No.4513/2005 C/W. O.S.No.4855/2006 are the adjacent owners on the western side of the 'A' schedule property.
6. It is stated that since the plaintiff being aged and sick man and resident of a remote place in Sira Taluk, Tumkur Dist., the defendants have committed trespass into the 'A' schedule property and illegally encroached the western portion to the extent of East to West:7.6+5/2 ft. North to South: 28 ft.+25/2 ft. and put up a compound wall therein some where in the year February 1998. Because of the old age and ill-health, the plaintiff is unable to visit the 'A' schedule property frequently and therefore, he had noticed the illegal construction of compound wall on the 'A' schedule property in the month of December 1997. The aforesaid encroached portion in 'A' schedule property is more fully described in the 'B' schedule.
7. It is stated that after coming to know of the illegal construction of the compound wall, the plaintiff approached the 2nd defendant and requested her to remove the compound wall in the 'B' schedule property. On the request of the plaintiff, the 2nd defendant had agreed to remove the compound wall within two or three months. She had not kept up her promise in doing so. In the meanwhile, the 2nd 10 O.S.No.4513/2005 C/W. O.S.No.4855/2006 defendant had already filed O.S.No.9328/1997 for permanent injunction against the plaintiff in respect of the property of the 1st defendant and the same is still pending.
8. It is stated that the defendants have no manner of right, title or interest over the schedule property. The plaintiff is in lawful, peaceful possession and enjoyment of the 'A' schedule property ever since from the date of purchase till a portion of 'A' schedule property was encroached by the defendants. The illegal act of trespass, encroachment and putting up construction of compound wall in the 'B' schedule property by the defendants is highly illegal and highhanded one. The plaintiff being a old and sick man, he is not in a position to remove the compound wall in the 'B' schedule property without the aid of the Court. It is stated that the defendants are in possession of 'B' schedule property as trespasser from the month of December 1997. Inspite of request made by the plaintiff, the defendants have not chosen to remove the compound wall and deliver vacant possession of the 'B' schedule property to the plaintiff till date.
9. It is stated that the plaintiff having purchased 'A' schedule property from K.Seetharam and he has been in lawful 11 O.S.No.4513/2005 C/W. O.S.No.4855/2006 possession and enjoyment of the same ever since from the date of purchase till the defendants encroached a portion of the same in the month of December 1997. The defendants have nothing to do with the encroached portion i.e., 'B' schedule property and they have no authority under law to remain in possession of the property and their possession is illegal and unauthorised one. As such, the plaintiff is constrained to approach the court for the relief of declaration, possession, mandatory injunction and for perpetual injunction.
10. It is stated that the defendant No.1 is the owner in possession of southern half portion of site No.2, formed in Sy.No.71/1 having acquired the title to the same under a registered Gift Deed dated.14.12.1983 executed by Smt.Rubi Devadasam. The donor of the defendant No.1 namely Smt.Rubi Devadasam had purchased the said site from J.K.Seetharam under a Sale Deed dated.15.6.1967 registered in the office of the Sub-Registrar, Bengaluru North Taluk. It is stated that the site No.2 is situated on to the west of site No.1. The defendant No.1 has purchased the southern half portion of site No.2 and northern half was purchased by a lady by name Smt.Lalitha Robert under a Sale Deed dated.15.6.1967 presently which is held and owned 12 O.S.No.4513/2005 C/W. O.S.No.4855/2006 by a lady by name Mrs. Mary Magadalane Raja. It is stated that defendant No.1 as well as the said lady have no right, title or interest in respect of site No.1 which is owned and possessed by the plaintiff. Though they have no right in respect of site No.1. In the month of December 1997, the defendant No.1 herein has constructed a compound wall over portion of site No.1 by encroaching the same i.e., 'B' schedule property since then, he has been in illegal possession of the same. It is stated that defendant No.1 has no right under law to remain in possession of the same. The plaintiff is entitled for possession of plaint 'B' schedule property.
11. It is stated that the southern half portion of site No.2 held and possessed by defendant No.1 is having the following boundaries:-
East by : 10 ft. common passage leading
to Northern half portion of
site No.2 and thereafter site No.1
West by : Site No.3
North by : Remaining portion of site No.2
South by : MES Road.
12. It is stated that the act of the defendants is highly illegal and high handed one. The plaintiff cannot remove the illegal 13 O.S.No.4513/2005 C/W. O.S.No.4855/2006 construction of the compound wall on the 'B' schedule property without the decree of mandatory injunction. The defendants have no manner of right, title or interest over the 'B' schedule property. The plaintiff is the absolute owner of the entire 'A' & 'B' schedule properties as already declared by the Court in O.S.No.3061/1987. Hence the suit.
13. The case of the plaintiff in O.S.No.4855/2006 is that the plaintiff is the owner of vacant site bearing site No.1, house list No.223 formed out of Sy.No.71/1, Jalahalli village, Yeshwanthpur Hobli, Bengaluru North Taluk, Bengaluru measuring East to West:38+48/2 ft. and North to South: 39+64/2 ft. having purchased from the previous owner under a registered Sale Deed dated.14.12.1964. The khatha stands in the name of the plaintiff. It is stated that during the year 1987, the afore said property was within the limits of the then Jalahalli Panchayath and the said Panchayath attempted to form a road and drainage illegally on the property of the plaintiff. Immediately, the plaintiff filed a suit against the Jalahalli Panchayath in O.S.No.3061/1987 before this court for the relief of declaration and injunction and the same came to be decreed on 25.10.1989 declaring that the plaintiff is the absolute owner of the aforesaid property and 14 O.S.No.4513/2005 C/W. O.S.No.4855/2006 the Jalahalli village Panchayath was restrained from disturbing or interfering with the peaceful possession and enjoyment of the plaintiff over the same. It is stated that subsequent to the passing of the Judgment & Decree, the plaintiff filed an Execution case No.859/1990 and in the said case, the Bailiff came to the spot of the aforesaid property on 1.2.1992 and handed over the vacant possession to the plaintiff as per the court orders.
14. It is stated that subsequent to the delivery of the vacant possession of the aforesaid property through court, the plaintiff was in peaceful possession and enjoyment of the same. Thereafter, the then Jalahalli Village Panchayath authorities and the Asst. Commissioner, Bengaluru Sub-Division approached the plaintiff and requested him to give eastern portion of the aforesaid property to form a road and a drainage for public purpose with the proposal and assurance that they would give alternative site measuring 30x56 ft. out of the site bearing house list No.182/2 formed out of Sy.No.1/1 of Jalahalli village. It is stated that the above panchayath has passed a resolution on 29.06.1992 to that effect. It is stated that on the humanitarian consideration, the plaintiff gave an open space in his property on the 15 O.S.No.4513/2005 C/W. O.S.No.4855/2006 eastern side to the extent of 1254.53 Sq.ft to Panchayath authorities agreeing to take the alternative site as stated above.
15. It is stated that subsequent to the handing over the eastern portion of the aforesaid property to the panchayath authorities and while the process for allotment of alternative site was pending, the entire panchayath area was amalgamated to Dasarahalli Notified area and thereafter, it has been amalgamated to the Bengaluru City Corporation. In view of this development, the changes took place, no alternative site was allotted by the so called Bengaluru City Corporation. The plaintiff has filed a Writ Petition in W.P.No.26061/2004 and the Hon'ble High Court of Karnataka has directed the Bengaluru City Corporation to consider the same within three months.
16. It is stated that the remaining western portion of the aforesaid site measuring 13.9+18/2 ft. x 54.6+64/2 ft. is in peaceful possession and enjoyment of the plaintiff and the same is described in 'A' schedule. Defendant No.1 herein and one Mrs.Nijinka are the adjacent owners on the western side of the 'A' schedule property. 16 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
17. It is stated that since the plaintiff being aged and sick man and resident of a remote place in Sira Taluk, Tumkur Dist., the defendants have committed trespass into the 'A' schedule property and illegally encroached the western portion (northern side) to the extent of East to West:4.6+7.6/2 ft. North to South: 36 ft. and put up a fence therein some where in the year December 1997. they have also dug up and made a water sump in the said area. Because of the old age and ill-health, the plaintiff is unable to visit the 'A' schedule property frequently and therefore, he had noticed the illegal construction of compound wall on the 'A' schedule property in the month of February 1998. The aforesaid encroached portion in 'A' schedule property is more fully described in the 'B' schedule.
18. It is stated that after coming to know of the putting up of fence, the plaintiff had approached the 1st defendant and requested her to remove the fence in the 'B' schedule property. On the request of the plaintiff, the 1st defendant had agreed to remove the fence within two or three months but she had not kept her promise in doing so. In the meanwhile, the 1st defendant had already filed O.S.No.9327/1997 for permanent injunction against the plaintiff in 17 O.S.No.4513/2005 C/W. O.S.No.4855/2006 respect of the property of the 1st defendant and the same is still pending.
19. It is stated that the defendants have no manner of right, title or interest over the schedule property. The plaintiff is in lawful, peaceful possession and enjoyment of the 'A' schedule property ever since from the date of purchase till a portion of 'A' schedule property was encroached by the defendants. The illegal act of trespass, encroachment and putting up construction of compound wall in the 'B' schedule property by the defendants is highly illegal and highhanded one. The plaintiff being a old and sick man, he is not in a position to remove the compound wall in the 'B' schedule property without the aid of the Court. It is stated that the defendants are in possession of 'B' schedule property as a trespasser from the month of December 1997. Inspite of request made by the plaintiff, the defendants have not chosen to remove the compound wall and deliver vacant possession of the 'B' schedule property to the plaintiff till date.
20. It is stated that the plaintiff having purchased 'A' schedule property from K.Seetharam and he has been in lawful possession and enjoyment of the same ever since from the date of 18 O.S.No.4513/2005 C/W. O.S.No.4855/2006 purchase till the defendants encroached a portion of the same in the month of December 1997. The defendants are nothing to do with the encroached portion i.e., 'B' schedule property and they have no authority under law to remain in possession of the property and their possession is illegal and unauthorised one. As such, the plaintiff is constrained to approach the court for the relief of declaration, possession, mandatory injunction and for perpetual injunction.
21. It is stated that the defendant No.1 is the owner in possession of Northern half portion of site No.2, formed in Sy.No.71/1 having acquired the title to the same under a registered Sale Deed dated.14.12.1994 executed by Sri.Suresh Simon Devadasam. The donor of the defendant No.1 namely Sri.Suresh Symon Devadasam has acquired title to the same under a Will dated.9.11.1986 executed by Sri.Captain.Symon. Sri.Captain B.Symon has purchased the said site from Smt.lalitha Robert under a Sale Deed dated.03.04.1973. Smt.Lalitha Robert had purchased the same i.e., northern half portion of site No.2 under a Sale Deed dated.15.6.1967 executed by Sri.J.K.Seetharam, registered in the office of the Sub-Registrar, Bengaluru North Taluk. It is stated that the site No.2 is situated on to the west of site No.1. The defendant No.1 has purchased the Northern half portion of site No.2 and Southern half was purchased by a lady by name Smt.Ruby Devadasan under a Sale Deed dated.15.6.1967 19 O.S.No.4513/2005 C/W. O.S.No.4855/2006 presently which is held and owned by Sri/ J.W.Rchinnaiah. It is stated that defendant No.1 as well as the said J.W.R.Chinnaiah have no right, title or interest in respect of site No.1 which is owned and possessed by the plaintiff. Though they have no right in respect of site No.1, in the month of December 1997, the defendant No.1 herein has erected barbed wire fence over portion of site No.1 by encroaching the same i.e., 'B' schedule property since then, they have been in illegal possession of the same. It is stated that defendant No.1 has no right under law to remain in possession of the same. The plaintiff is entitled for possession of plaint 'B' schedule property.
22. It is stated that the southern half portion of site No.2 held and possessed by defendant No.1 is having the following boundaries:-
East by : Site No.1
West by : Site No.3
North by : Private property
South by : Remaining portion of site No.2
and 10 ft. common passage.
23. It is stated that the act of the defendants is highly illegal and high handed one. The plaintiff cannot remove the illegal fence on the 'B' schedule property without the decree of mandatory injunction. The defendants have no manner of right, title or interest over the 'B' schedule property. The plaintiff is the absolute owner of the entire 'A' 20 O.S.No.4513/2005 C/W. O.S.No.4855/2006 & 'B' schedule properties as already declared by the Court in O.S.No.3061/1987. Hence the suit.
24. The 1st defendant in O.S.No.4513/2005 has filed the written statement as follows:-
It is stated that the suit for declaration in respect of 'B' schedule property is not maintainable. The plaintiff has not paid proper and sufficient court fee. The plaintiff is not in possession of either Schedule-A or 'B' properties. It is stated that there is no Schedule-'B' property as contended by the plaintiff. Hence the suit against the non- existing property is not maintainable and the above suit situated frivolous, mischievous and is to be dismissed.
25. It is stated that the plaintiff herein was trying to demolish the compound wall put up by the defendant's mother-in-law and hence this defendant filed a suit in O.S.No.9328/1997 through his daughter who is the 2nd defendant in the above suit and obtained an order of injunction. The plaintiff has filed written statement and the evidence is completed and the matter is posted for cross-examination of D.W.1 and in that suit during the pendency of the above suit, the 21 O.S.No.4513/2005 C/W. O.S.No.4855/2006 plaintiff had filed the above suit by making allegations against this defendant which are untrue and the suit is barred by limitation.
26. It is stated that the 1st defendant acquired the property in the year 1983 under a Gift Deed executed by Smt.Ruby Devasa who is the mother-in-law who in turn had acquired the same under a Sale Deed dated.15.06.1967. She had constructed a building and erected a compound wall and the compound wall is in existence for the last 32 years, and this defendant is in physical possession and enjoyment of the property measuring East to West: (40 + 36)/2 ft. and North to South: (45+29)/2 ft. consisting of ground floor and first floor. The measurement of the boundaries of the site belonging to this defendant is as follows:-
East to West 50 ft. including 10 ft. common passage North to South towards Eastern side 29 ft. and on the Western site 54 ft. bounded on the:
East by : Common passage
West by : Site No.3
North by : Property of Smt.Little Robert
South by : Main Road.
27. It is pertinent to state that the 1st defendant obtained plan in the year 1986 in order to put up construction of the 1st floor 22 O.S.No.4513/2005 C/W. O.S.No.4855/2006 above the existing property in which the compound wall of the defendant is clearly indicated in the plan. Thus this defendant has not encroached upon the plaintiffs' property and hence the suit of the plaintiff is liable to be dismissed.
28. The allegations made in paras-3,4 and 5 are denied as false and untenable. It is pertinent to state here that there is a road now formed by village Panchayath which is situated towards the southern side of this defendant's property running from East to West. Except that, there is no other property in existence as claimed by the plaintiff and hence the suit 'B' schedule property is an imaginary one. The allegations made in para-6 are denied. It is stated that the defendant is also not aware of any Writ Petition filed by the plaintiff. It is stated that if the village Panchayath has not allotted any alternative site, it is for the plaintiff to seek remedy against the said Panchayath and hence he cannot maintain the above suit as against this defendant as the suit is also liable to be dismissed for mis-joinder and non-joinder of necessary parties. The averments made in para-7 are denied. There is no such property in existence as stated by the plaintiff. The averments made in para-8 of the plaint that this defendant has 23 O.S.No.4513/2005 C/W. O.S.No.4855/2006 committed trespass into the suit schedule 'A' property and has illegally encroached upon the western portion of the property to an extent measuring (7.6 +5)/2 ft. and North to South: (26+25)/2 ft. and put up a compound wall where under in the year 1998 is an absolute falsehood.
The compound wall is in existence for the last 32 years,. In view of the fact that this defendant's mother-in-law has constructed a building in the year 1973 itself, this defendant obtained a building plan in order to put up 1st floor in the year 1986 in which the existence of the compound wall is shown.
29. The averments made in para-9 are denied. It is a fact that a suit in O.S.No.9328/1997 is filed before this court and obtained an order of injunction against the plaintiff. In view of the fact that the plaintiff came with henchmen and tried to demolish the compound wall and therefore, in order to protect the property of the 1st defendant, the suit referred to in this paragraph came to be filed. All other averments are denied as false.
30. The averments made in para-10 are denied as false. It is stated that as admitted by the plaintiff himself, his property was acquired by the Panchayath and Panchayath has agreed to allot 24 O.S.No.4513/2005 C/W. O.S.No.4855/2006 alternative site which clearly shows the plaintiff is not in possession of the entire property and there is no property in existence as described in the plaint. The averments made in para-11 of the plaint that defendants are in possession of 'B' schedule property as a trespasser from the month of December 1997 is denied. This defendant has not trespassed into any property. The averments made in para-11 are denied. It is stated that there is no illegal construction of the compound wall suit schedule 'B' property as contended by the plaintiff. The plaintiff has to take action against the Panchayath. There is no cause of action.
31. It is stated that if the cause of action has arisen in the year 1989 as stated by the plaintiff, then the plaintiff has not taken any steps in the last 32 years, when the first defendant's mother-in- law constructed building and compound wall. The suit is liable to be dismissed for delay and latches and the plaintiff cannot maintain the suit and he cannot seek any declaration also and there is no illegal construction. The construction made are proper and valid. Hence it is prayed that suit may be dismissed.
25 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
32. The 1st defendant in O.S.No.4513/2005 has also filed additional written statement as follows:-
It is stated that the plaintiff knowing fully well that the site No.1 is not in existence and it is acquired by the Corporation for the formation of the road and it appears the plaintiff has filed a suit in O.S.No.3061/87 in which the Corporation authorities appear to have agreed to give an alternate property to him, his remedy is only against the Corporation authorities and not against this defendant in view of the fact that site No.1 is not at all in existence and hence the suit is not maintainable and the same is liable to be dismissed.
33. It is stated that the 1st defendant has denied the averments made in para-10(a) as false and the plaintiff is put to strict proof thereof. It is stated that as already stated, the suit schedule 'A' property is not in existence and therefore, the question of 1st defendant encroaching upon the same does not arise. It is stated that the building on the property purchased by this defendant is in existence for the last 40 years, and as such the question of this defendant encroaching upon the suit schedule 'A' property does not arise at all.
26 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
34. It is stated that the 1st defendant has admitted averments that he is the owner in possession of southern half portion of site No.2 formed in Sy.No.71/1 having acquired title to the same under a registered Gift Deed dated.14.12.1983 executed by Ruby Devadason and in turn, the said Ruby Devadason had purchased the said property from J.K.Seetharam under a registered Sale Deed dated.15.6.1967. It is stated that in so far as the acquisition of the property bearing No.2 by this defendant is concerned, it is not in dispute. The further averments that this defendant as well as the Lady Mary Magdalane Raj having acquired right, title or interest in respect of the site No.1 which is owned and possessed by the plaintiff is an absolute falsehood. It is stated that when the site itself is not in existence and when it is acquired for formation of the road as admitted by the plaintiff himself, the question of encroaching suit schedule 'A' property does not arise at all.
35. It is stated that it is pertinent to state that when the suit schedule 'A' property is not in existence, there is no occasion either for the defendant No.1 or to Smt.Mary Magdalane Raja to encroach upon the suit schedule 'A' property and further the building 27 O.S.No.4513/2005 C/W. O.S.No.4855/2006 constructed on site No.2 is in existence for the last 35 to 40 years, and therefore, the entire averments made that the defendants have encroached upon the suit schedule 'A' property which is described as suit schedule 'B' property is an imaginary schedule and no such property is in existence and therefore, the entire averments made in para-10(a) of the plaint are not proper and correct and the same is denied. It is stated that the question of seeking any declaration in respect of the non-existing property does not arise and hence it is prayed that the suit may be dismissed.
36. The 1st defendant in O.S.No.4588/2006 has filed written statement as follows:-
It is stated that the suit for declaration in respect of 'B' schedule property is not maintainable. The plaintiff has not paid proper and sufficient court fee. It is stated that there is no Schedule-'B' property as contended by the plaintiff. Hence the suit against the non- existing property is not maintainable and the above suit situated frivolous, mischievous and is to be dismissed. It is stated that besides the above suit is also not maintainable for misjoinder of necessary parties. The 2nd defendant has nothing to do with the subject-matter 28 O.S.No.4513/2005 C/W. O.S.No.4855/2006 involved in the above suit and hence he is not the necessary party and he has been unnecessarily dragged into the controversy.
37. The allegations made in para-3,4 and 5 are denied as false and untenable. It is stated that that no doubt, the entire area where the defendant's property is situated comes in Bengaluru City Corporation jurisdiction. The 1st defendant is not a party to the Writ Petition No.26061/2004 and this defendant is not aware of any direction issued to the Corporation and t same has nothing to do with the property belonging to this defendant. The allegations made in para-7 of the plaint that the plaintiff is in possession of western portion of the property measuring (13.9+18)/2 ft. x (54.6+64)/2 ft. is denied as false and there is no such property available in Sy.No.71/1 of Jalahalli village and all the properties in the said area are fully developed.
38. The allegations made in para-8 of the plaint is denied. It is stated that the plaintiff being aged and sickman and resident of a remote village, the defendants have committed trespass into the suit schedule 'A' property and illegally encroached western side (northern) side to the extent of East to West: (4.6+7.6)/2 ft. North to South- 36 29 O.S.No.4513/2005 C/W. O.S.No.4855/2006 ft. and put up a fence therein somewhere in December 1997 and they have also dug-up and made a water sump in the said area are all denied as false.
39. It is stated that the 1st defendant purchased the property in the year 1984 under a registered Sale Deed dated.14.11.1994. Pursuant to the same, the Notified Area Committee of Dasarahalli has transferred the khatha in favour of the 1st defendant on 20.11.1994. It is stated that the 1st defendant has constructed building comprising of 12 squares consisting of ground floor and a room in the first floor and the said building was constructed in the year 1975 and as such encroachment of plaintiff's property by 1st defendant does not arise and 1st defendant is in physical possession and enjoyment of her won site measuring East to West:50 ft. and North to South: 36 ft. and the boundaries of the defendant's property is as follows:-
"All that piece and parcel of the property bearing site No.2, present Corporation No.2, II Main Road, Bahubali Nagar, Yeshwanthpura, Bengaluru bounded on the:
East by : Jalahalli village road,
West by : Private property
30 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
North by : Private Property
South by : Common passage of 10 ft.
wide & property belonging
to JWR Chinnaiah.
40. It is stated that the plaintiff along with his henchmen came and attempted to dispossess the defendant from the suit schedule property. In view of the same, the 1st defendant lodged a complaint and hence the averments made that the plaintiff is a sickman and could not able to visit the suit schedule property are all false.
41. The averments made in para-9 are denied. It is stated that after coming to know about the putting up of the illegal fencing, the plaintiff had approached the 1st defendant and requested her to remove the fence put up on the suit schedule 'B' property is denied as false. It is stated that on the request of the plaintiff, the 1st defendant agreed to remove the fencing within two or three months, but she has not kept up promise and in the meanwhile, the 1st defendant has already fieled a suit in O.S.No.9327/1997 by that time, before the court for permanent injunction against the plaintiff in respect of the property of the 1st defendant is hereby denied as false. It is stated that the 1st defendant had filed the suit against the plaintiff as the 31 O.S.No.4513/2005 C/W. O.S.No.4855/2006 plaintiff had deputed his henchmen to dispossess the 1st defendant from her property.
42. It is pertinent to state here that the 1st defendant purchased the property in the year 1994 which was a constructed building constructed in the year 1975 and since then she is enjoying the said property with boundaries stated above and therefore, putting of illegal construction on the plaintiff's property by this defendant does not arise at all.
43. It is stated that the 1st defendant is in physical possession of her property for the last 12 years and her predecessor-in-title were in possession of the same for more than 20 years, and therefore, the question of illegal occupation of suit schedule 'B' property does not arise. The allegations made in para-10 and 11 are all denied as false. It is stated that the defendant is not a party to O.S.No.3061/1997 and hence any decree passed in that suit is not binding on her. The allegations made in para-12 and 13 are all denied by the 1st defendant. Hence it is prayed that the suit may be dismissed.
44. The 1st defendant in O.S.No.4855/2006 has also filed additional written statement as follows:- 32 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
45. It is stated that the plaintiff having purchased the suit schedule 'A' property from J.K.Seetharam and he has been in lawful possession and enjoyment of the same every since from the date of purchase till the defendants encroached upon a portion of the same in the month of December 1997 are all denied as false. It is stated that that no such suit schedule 'A' property in existence as on the date of filing of the suit and the schedule furnished is imaginary one and as such, the question of this defendant encroaching upon a portion of the suit schedule 'A' property which is suit schedule 'B' property is absolutely false. It is stated that when the property itself is not in existence and the building is in existence for the last 34 years,, question of defendant encroaching jupon the suit schedule property does not arise at all. The 1st defendant has denied the allegations made in para-10(a) of the plaint as false. The 1st defendant purchased the property in the year 1994 with the building constructed on site No.2 i.e., the northern half portion of site No.2.
46. It is stated that Sri.Suresh Simon had acquired the title to the northern portion of site No.2 under a Will dated.09.11.1986 from his father, the measurement of the property acquired by him was East 33 O.S.No.4513/2005 C/W. O.S.No.4855/2006 to West: 50 ft. and North to South: 36 ft. more fully described in para-10 of the written statement. It is stated that site No.2 is situated on the western side of site No.1 is not correct as the site No.1 itself is not in existence and therefore, the averments made to that effect is denied as false.
47. It is stated that the 1st defendant has purchased northern half portion of site No.2 and southern half portion was purchased by Smt.Ruby Devadason under a registered Sale Deed from J.K.Seetharam under a registered Sale Deed dated.15.6.1967. It is stated that southern half portion of site No.2 is held by J.W.R.Chinnaiah.
48. It is stated that this defendant as well as the J.W.R.Chennaiah having acquired right, title or interest in respect of the site No.1 which is owned and possessed by the plaintiff is an absolute falsehood. It is stated that when the site itself is not in existence and when it is acquired for formation of the road as admitted by the plaintiff himself, the question of encroaching suit schedule 'A' property does not arise at all.34 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
49. It is stated that it appears the plaintiff had filed a suit in O.S.No.3061/87 and in that suit, the Corporation has agreed to give an alternate site and as such it is for the plaintiff to approach the Corporation authorities as the site No.1 is not in existence as admitted by the himself and therefore, the averments that the defendant and Sri.J.W.R.Chinnaiah have encroached suit schedule 'A' property which is described as suit schedule 'B' property is denied as false.
50. It is stated that question of seeking any declaration in respect of the non-existing property does not arise and hence it is prayed that the suit may be dismissed.
51. On the above pleadings the following issues were framed:
ISSUES IN O.S.No.4513/2005
1. Whether the plaintiff proves that he is entitled vacant possession of suit schedule 'B' property?
2. Whether the plaintiff proves that he is the absolute owner of suit schedule 'B' property?
3. Whether the suit filed by the plaintiff is barred by limitation?
4. Whether the plaintiff proves that the court fee paid by him is sufficient?35 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
5. Whether the plaintiff is entitled for the reliefs claimed?
6. What order or decree?
ISSUES IN O.S.No.4855/2006
1. Whether the plaintiff proves that he is entitled vacant possession of suit schedule 'B' property?
2. Whether the plaintiff proves that he is the absolute owner of suit schedule 'B' property?
3. Whether the suit filed by the plaintiff is barred by limitation?
4. Whether the plaintiff prove that the court fee paid by him is sufficient/suit property valued?
5. Whether the plaintiff is entitled for the reliefs claimed?
6. What order or decree?
Addl. Issues:-
1. Whether plaintiff proves that defendant has encroached suit schedule 'B' property as contended?36 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
2. Whether plaintiff proves that he is the absolute owner of suit schedule 'A' property as contended?
52. The power of attorney holder of the representatives of the plaintiff is examined as P.W.1. Ex.P1 to Ex.P32 were marked. The 1st defendant is O.S.No.4855/2006 is examined as D.W.1 and 1st defendant is O.S.No.4513/2005 is examined as D.W.2. Ex.D1 to Ex.D42 were marked. The Court Commissioner appointed by the Court is examined as C.W.1 and Ex.C1 to Ex.C4 and Ex.C1(a) to Ex.C11(b) were marked. I have heard the counsel for both sides.
53. My answer to the above issues are as under:
O.S.No.4513/2005 Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: In the Negative Issue No.4: In the Affirmative Issue No.5: In the Affirmative Issue No.6: As per the final order O.S.No.4513/2005 Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: In the Negative Issue No.4: In the Affirmative 37 O.S.No.4513/2005 C/W. O.S.No.4855/2006 Issue No.5: In the Affirmative Addl. Issue In the Affirmative No. 1:
Addl. Issue In the Affirmative
No.2:
Issue No.6: As per the final order
for the following:-
/REASONS/
54. Issue No.1& 2 in both the suits & Addl. Issue No.1& 2 in O.S.No.4855/2006:- The power of attorney holder of the plaintiffs have filed the affidavit in lieu of examination-in-chief. He has reiterated the averments made in the plaint. He has been cross-
examination by the counsel for the defendants. In the cross- examination he says that, since there was no approved plan for Sy.No.71/1, he has not produced the approved plan. He says that he has obtained revenue sketch for production in O.S.No.3061/1987. He says that total extent of site is 2200 Sq.ft. He says that he has produced Ex.P21 to show that only part of his site was acquired for the formation of the road. He says that the above portion of the site was not initially notified and acquired. He says that since the process of grant of alternate site is pending, he has not applied for khatha in 38 O.S.No.4513/2005 C/W. O.S.No.4855/2006 respect of remaining portion. He denies the suggestion that site No.1 was fully acquired by Jalahhali Panchayath. He says that he has not paid the taxes to the remaining portion of site No.1. He says that the width of the road on the northern side from East to West is 24.3 ft. and southern side 30 ft and on eastern side south to north 38 ft. and on the western side 54 ft. The total is 1254 Sq.ft. He denies the suggestion that site number is not in existence. He admits that the present defendants had filed suits against him in the year 1997. He admits that O.S.No.9327/1997 filed by Smt.Mary Macdolin Raja against the plaintiff had been decreed. He says that he has not preferred any appeal against the Judgment & Decree in O.S.No.9327/1997.
55. He admits that the defendant in O.S.No.4855/2006 has got a house in site No.2. He also admits that the defendant in O.S.No.4513/2005 have also constructed the house. He denies the suggestion that the defendants in both the suits constructed compound wall. He admits that the defendants are not the parties in Writ Petition No.26061/2004 and W.P.No.1365/2005. He admits that he had sought for portion of the suit property which was acquired for 39 O.S.No.4513/2005 C/W. O.S.No.4855/2006 road. He denies the suggestion that he has not established the right over site No.1. He denies the suggestion that 'B' schedule property is not in existence. He denies the suggestion that abutting to the compound wall of the defendants, there is drainage. He says that the distance between the compound wall and the drainage on the northern side is 7.6 ft. and southern side is 5 ft. He says that the distance between the compound wall and the drainage of the defendant on the northern side is 5 ft. and southern side it is 4.6 ft. He denies the suggestion that the compound wall of the defendants is in existence for nearly 40 years. He denies the suggestion that the defendants have not encroached any portion of the 'B' schedule property. He admits that he has been allotted an alternate site in Ullala village.
56. D.W.1 is the defendant in O.S.No.4855/2006. She has filed the affidavit in lieu of examination-in-chief and she has reiterated the averments made in the written statement. She has been cross-examined by the counsel for the plaintiff. In the cross- examination she says that she has verified the Will executed in favour of her vendor and the previous Sale Deeds. She contends that she had gone through the Sale Deed dated.03.04.1973 before she purchased 40 O.S.No.4513/2005 C/W. O.S.No.4855/2006 site No.2. She says that she does not remember the eastern boundary of the site No.2 as shown in the Sale Deed dated.3.4.1973. The eastern boundary of site No.2 is site No.1. She admits that before purchasing site No.2, she had verified the Sale Deed executed by J.K.Seetharam in favour of Smt.Lalitha Robert and the Sale Deed executed by Smt.Lalitha Robert in favour of Captain Simon. She denies the suggestion that she has intentionally not produced the above documents before the court. She says that in all the Sale Deeds in respect of the site No.2, the eastern boundary is shown as site No.1, but in the will it is shown as Jalahalli road. She denies the suggestion that when she purchased the property in 1994. The eastern boundary of site No.2 was site No.1. She denies the suggestion that the site No.1 is shown on the eastern side of her site. To grab the property of the plaintiffs, she got mentioned in her Sale Deed as road towards the east of her property. She denies the suggestion that in between the site No.2 and Jalahalli road, there is a vacant land. She admits that O.S.No.9510/1997 was filed by original plaintiff against her and another person. She admits that in the Will dated.09.11.1986, the boundaries of the property bequeathed in favour of Suresh Simon are 41 O.S.No.4513/2005 C/W. O.S.No.4855/2006 not mentioned. She says that as per the say of Suresh Simon, she has shown the eastern boundary of her site as Jalahalli road. She says that if her property (site No.2) is measured from East to West and demarcated to an extent of 50 ft. and whether she claims any property in excess of 50 ft. towards further east, she has stated that since it is a road and drainage, she has nothing to do with excess area (beyond 50 ft.). She admits that after her compound wall, there is civic amenities on the eastern side of her property. She has admitted that she had filed written statement in O.S.No.9510/1997. She has admitted the contention taken by her in the above suit. The above contention taken by her in O.S.No.9510/1997 reads as follows:-
"First of all, there is no land available as alleged by the plaintiff and there is only a small portion available adjacent to this defendant property which belongs to village Panchayath and now it is under Bengaluru City Corporation, but it is not a site as alleged by the plaintiff."
She denies the suggestion that since 1997 she has encroached 'B' schedule property and she is in unauthorised occupation. She denies 42 O.S.No.4513/2005 C/W. O.S.No.4855/2006 the suggestion that she has illegally dispossessed the plaintiff from the 'B' schedule property in 1997.
57. D.W.2 is the 1st defendant in O.S.No.4513/2005. He has filed affidavit in lieu of examination-in-chief. She has reiterated the averments made in the written statement. In the cross-examination, he admits that he is claiming right in respect of southern portion of site No.2 formed in Sy.No.71/1 of Jalahalli. He admits that his mother-in-law acquired portion of site No.2 through a Gift Deed dated.14.12.1983. He says that he is not aware if the road existed as on 15.6.1967. He admits that site No.1,2 and 3 of Jalahally are carved out of Sy.No.71/1. He admits that eastern boundary of site No.2 formed in Sy.No.71/1 was site No.3 formed in Sy.No.71/1 of Jalahally. He says that site No.1 is not in existence. He says that as per Ex.D26, site No.1 was in existence at that point of time. He says that after verifying Ex.D27 that the property under Ex.D27 measures East to West:40+35/2 and North to South: 45+29/2. He admits that beyond the above measurement he does not own even an inch of land. He says that his mother-in-law while executing Ex.D27 has retained portion of property in site No.2 and it is on all the four 43 O.S.No.4513/2005 C/W. O.S.No.4855/2006 sides. He says that retention of portion of property on all sides of site No.2 by his mother-in-law is not mentioned in Ex.D27. He denies the suggestion that he has encroached 7.6 +5 ft. East to West: and 28+25 ft. North to South: in site No.1 belonging to the plaintiff. He denies the suggestion that he has encroached the above area in December 1997. He denies that he is in illegal possession of the above encroached area. He says that he has no objections for measuring and demarcating the property as per the measurement shown in Ex.D27. He says that he is not prepared to handover the excess area if it is found that he has encroached site No.1.
58. Ex.P1 is the power of attorney. Ex.P8 is the Sale Deed dated.14.12.1964. The plaintiff is claiming title to an extent of land measuring East to West:38ft. on the northern side, 48 ft. on the southern side, North to South on the eastern side 39 ft. and on the western side 64 ft. He has purchased this land under Ex.P8 on 14.12.1964 from J.K.Seetharam. The western boundary of this site No.1 is shown as site No.2. Ex.P2 is the certified copy of the Sale Deed dated.15.6.1967 executed by J.S.Seetharam in favour of Smt.Ruby Devadason. This document is in respect of site No.2 of the northern 44 O.S.No.4513/2005 C/W. O.S.No.4855/2006 portion. In this document, the eastern boundary of site No.2 is shown as site No.1. The plaintiff is claiming title to an extent of land measuring East to West:38 ft. on the northern side, 48 ft. on the southern side North to South, on the eastern side 39 ft. and on the western side 64 ft. He has purchased this land under Ex.P8 on 14.12.1964 from J.K.Seetharam. The western boundary of this site No.1 is shown as site No.2. Ex.P3 is the copy of the Gift Deed executed by Ruby Devadason in favour of 1st defendant in O.S.No.4513/2005. The Gift Deed is dated.14.12.1983. It is in respect of a portion of site No.2 purchased under Ex.P2. This property is measuring East to West:40 ft. on the northern side, 35 ft. on the southern side. It is measuring North to South on the eastern side 29 ft. and on the western side 45 ft. Ex.P4 is the certified copy of the Sale Deed dated. 15.6.1967 executed by J.K.Seetharam in favour of Smt.Lalitha Robert. This is in respect of Northern portion of site No.2. The measurement of this site is East to West on the northern side 50 ft. and on the southern side 50 ft. and North to South: 36 ft. Ex.P5 is the certified copy of the Sale Deed executed by Suresh Simon in favour of the defendant -Mrs. Mary Maagdalane Raja in 45 O.S.No.4513/2005 C/W. O.S.No.4855/2006 O.S.No.4855/2006. This property measures East to West:50 ft. and North to South: 36 ft. Ex.P9 is the certified copy of the Sale Deed dated.03.04.1973 executed by Lalitha Robert in favour of B.Simon. It is in respect of northern portion of site No.2. The eastern boundary of this property is shown as site No.1. In Ex.P5, the eastern boundary was shown as Jalahalli Road. The property which was purchased by B.Simon through Lalitha Robert was sold to the 1st defendant in O.S.No.4855/2006. Ex.D3 is the same as Ex.P5.
59. The case of the plaintiff is that he purchased the site No.1 as per Ex.P8- the original Sale Deed. His case is that he was in possession of the same and during the year 1987, the Jalahalli village Panchayath tried to form a road in site No.1 At that time, he filed a suit in O.S.No.3061/1987 against the Jalahalli Village Panchayath and it was decreed. It is his further case that the Jalahalli Village Panchayath and Asst. Commissioner approached him and requested him to surrender eastern portion of the entire property for the formation of a road and drainage for the public purpose. It is also his case that they assured that they would give alternate site measuring 30x56 ft. out of site bearing house list No.182/2 formed out of Sy.No.1/1, of 46 O.S.No.4513/2005 C/W. O.S.No.4855/2006 Jalahalli Village. He says that a resolution was also passed on 29.6.1962. He says that on the request, he surrendered an extent of 1254.53 Sq.ft. on the eastern side of site No.1 to the Panchayath authorities by agreeing to take the alternate site.
60. His further case is that by the time Panchayath got allotted alternative site, the village panachayath was amalgamated with Dasarahalli Notified Area and thereafter, it was amalgamated to the Bengaluru City Corporation. In view of the above developments, an alternate site was not allotted to him. Therefore, he filed W.P.no.26061/2004 and the Hon'ble High Court of Karnataka directed the Bengaluru City Corporation to consider the request of the plaintiff within three months. It is his further case that, the western portion of the aforesaid property measuring 13.9+18/2 ft. x 54.6+64/2 is in possession and it is shown as 'A' schedule property in this suit. He has clearly stated that the defendant No.1 and one Mary Maagadlone Raja are the adjacent the owners on the western side of the 'A' schedule property. To prove these facts, the plaintiff has produced Ex.P6- the certified copy of the order in W.P.No.1365/2006. Under this order, the Hon'ble High Court of Karnataka has directed the 2nd respondent 47 O.S.No.4513/2005 C/W. O.S.No.4855/2006 i.e., the Bengaluru City Corporation to allot an alternate site to the plaintiff. Ex.P7 is the conversion order of Survey Number.71/1 of Jalahally village for non-agricultural purpose. Ex.P10 is the mahazar in Ex.No.959/1990. Ex.P11 is the Judgment in O.S.No.3061/1987. This is a suit filed by the plaintiff against the Jalahalli Village Group Panchayath. The suit has been decreed. The suit is only for permanent and mandatory injunction. The Judgment clearly shows that it was decreed for permanent injunction and also the mandatory injunction. Pursuant to the above decree, the execution proceedings were held and the plaintiff has taken possession of the above property which he purchased under Ex.P8.
61. Ex.P13 and Ex.P13(a) are the resolution passed by Jalahalli Panchayath dated.29.6.1992 for allotting alternate site to the plaintiff. Ex.P14 and Ex.P14(a) are the letter written by the Deputy Commissioner to the Commissioner, BMP dated.07.09.1996. A reading of Ex.P13 and Ex.P14 show that after the decree passed in favour of the plaintiff in O.S.No.3061/1987, the Panchayath passed the resolution requesting the plaintiff to give site for formation of the road on the condition that an alternate site may be allotted to him. 48 O.S.No.4513/2005 C/W.
O.S.No.4855/2006 Ex.P14 also shows that the plaintiff has not agreed for allotment of a site measuring 30x40 ft. and he insisted for the allotment of an alternate site measuring 30x56 ft. It is also stated that the plaintiff would retain the portion which is remaining after the portion used for formation of the road. Ex.P15 is the certified copy of the order sheet in Ex.No.959/1990. Ex.P16 is the certified copy of the Delivery Warrant issued in Ex.No.959/1990. Ex.P17 and Ex.P17(a) are one and the same. It shows that the plaintiff is the owner of a vacant site measuring 246 Square Yards. Ex.P18 and Ex.P18(a) show that it is an endorsement given by the Chairman, Village Panchayath, Jalahalli to the plaintiff. It shows that house list Khaneshumari No.223 is shown as gramatana land. Ex.P17, Ex.P17(a), Ex.P18, Ex.P18(a), Ex.P19, Ex.P20 are the tax paid receipts by the plaintiffs in respect of site No.1
62. Ex.P21 is the proceedings and the order of the Administrative Officer of the BMP. Ex.P22 is also an order of the Commissioner, BMP. A perusal of these two documents indicates that portion of site No.1 was taken over by Jalahalli Panchayath for the formation of the road. It is also noted that the village Panchayath had promised the plaintiff to allot an alternate site. It is also noted that 49 O.S.No.4513/2005 C/W. O.S.No.4855/2006 no alternate site has been granted to the plaintiff for all these years. It was also stated that a site measuring 1576.25 Sq.ft. formed in Sy.No.24 of Ambalipura village should be granted to the plaintiff. Ex.P23 dated.11.01.2010 is also an order of the Commissioner, BBMP directing to allot an alternate site. Ex.P24 is the certified copy of order sheet in O.S.No.9510/1997. This is a suit filed by the plaintiff against the defendants in O.S.No.4855/2006 for permanent injunction. The plaintiff has withdrawn the above suit saying that, he will pursue his remedy in O.S.No.4855/2006. Hence the above suit was withdrawn. Ex.P25 is an application filed by the plaintiff under Or.XXIII, R.1 in O.S.No.9510/1997. Ex.P26 is the rough sketch, Ex.P27 is the certified copy of the Judgment & Decree passed in O.S.No.9328/1997 filed by the 2nd defendant in O.S.No.4513/2005 against the plaintiffs for permanent injunction. Ex.P28 is the deposition of the 1st defendant in O.S.No.4513/2005 given in O.S.No.9328/1997. Ex.P29 is the cross- examination portion in the same suit. Ex.P30 and Ex.P31 is the written statement in O.S.No.9510/1997. Ex.P32 is the proceedings of the Govt. wherein alternative site No.5 formed in Sy.No.38/1 of Valagerahalli Ward No.130 Ullala village, site No.5 measuring 1200 Sq. 50 O.S.No.4513/2005 C/W.
O.S.No.4855/2006 ft. and site No.3 measuring 480 Sq.ft. in all measuring 1680 Sq.ft. was allotted to the plaintiff.
63. A Commissioner was appointed in this case. He has visited the suit schedule property and has submitted his report. He has been examined as C.W.1 in this case. Ex.C1 to Ex.C4 are also marked. He has submitted the Commission report. The Commission Report is Ex.C1. Ex.C1(a & b) are the two sketches prepared by him. Ex.C2 is the spot mahazar and rough sketch is Ex.C3. Ex.C4 is the report filed in O.S.No.4855/2006. He has been cross-examined by the counsel for the defendants. He says that he does not know the parties to this suit. He denies the suggestion that P.W.1 is his friend. He denies the suggestion that at the instance of P.W.1, he was appointed as Commissioner in this suit. He says that road is formed in site No.1. He says that he does not know that the plaintiff had filed suit against the Panchayath claiming that his site has gone to road. He denies the suggestion that site No.1 belonged to plaintiff has merged in road. He denies the suggestion that he has not answered to the Memo of Instructions. He denies the suggestion that the drain is by the side of 51 O.S.No.4513/2005 C/W. O.S.No.4855/2006 the 2nd road. He denies the suggestion that he has given a false report at the request of the plaintiff.
64. The Commissioner has answered the Memo of Instructions filed on behalf of the plaintiff. The Commissioner has identified and located site No.1 and 2 on the basis of the Sale Deed dated.04.12.1964 in the name of the plaintiff. He has also verified the Sale Deed Ex.P8 dated.15.06.1967. He has verified Ex.P4. He has prepared the sketch of the site bearing No.1 and 2 with the above measurement. Ex.C1(a) is the sketch. The portion marked as 'ABCD' in Ex.C1(a) is the site No.1 and the portion marked as 'GDEF' in Ex.C1(a) is the southern portion of site No.2 belonging to Smt.Ruby Devidson and later the defendant in O.S.No.4513/2005.
65. The Commissioner was directed to measure and identify the encroachment made by the defendants on site No.1. The Commissioner has stated that he took actual measurement at the site and prepared the sketch and the portion marked as 'GJMD' in red colour in sketch C+D is the encroachment made by the defendants in site No.1. The Commissioner was also directed to prepare the sketch showing the exact location of site bearing No.1 and 2 and encroachment 52 O.S.No.4513/2005 C/W. O.S.No.4855/2006 made by the defendants on site No.1. The answer he has given is that, he took actual measurement at the site and prepared the sketch. He was also directed to note whether a road has been formed on site No.1. The answer is Yes. The Commissioner was also directed to report the extent of land that has been taken in site No.1 for formation of Jalahalli road i.e., on the eastern side of site No.1. The Commissioner has stated that the area marked as 'LBCN' in Ex.C1(b) is the portion that has been taken away by Jalahalli Panchayath for formation of road. The Commissioner was also directed to report the extent of land lying in between the Jalahalli road and site No.2. The answer is the extent of land lying in between the Jalahalli road and site No.2 marked as 'JKNM' in sketch marked as Ex.C1(b). Ex.C2 is the spot mahazar. The defendant in O.S.No.4513/2005 was not present, but P.W.1, Advocate for the plaintiff, Advocates for the defendants in both suits were present and the measurements were taken in their presence. They have also put their signatures to Ex.C2. Ex.C3 is the rough sketch prepared on the spot. It also bears the signature of all the parties. The Commissioner has also measured the northern portion of site No.2 53 O.S.No.4513/2005 C/W. O.S.No.4855/2006 and has concluded that the portion marked as 'AIJG' is the encroached area belonging to the plaintiff which is shown in blue colour.
66. A perusal of the cross-examination of the Commissioner shows that nothing has been elicited in the cross-examination to disbelieve his evidence. Infact, he has denied the suggestion that he is the friend of P.W.1 and he has given the report to help the plaintiff. It is pertinent to notice that the defendants, P.W.1, Advocates for both the parties were all present when this Commissioner executed warrant as per the Memo of Instructions and order of this court. Therefore, I feel that the Commissioner in this case has properly executed the warrant and filed his report. Therefore, the Commissioner's report is accepted.
67. The crux of the matter is that whether there lies a property which is shown as 'A' schedule in the plaint. Whether the defendants in both cases have encroached upon 'A' schedule property to the extent shown in 'B' schedule property of both the suits. There is no dispute that the plaintiff has purchased site No.1 under Ex.P8. The plaintiffs' case is that the eastern portion of site No.1 was taken over by Jalahalli Village Panchayath for formation of the rod. The 54 O.S.No.4513/2005 C/W. O.S.No.4855/2006 remaining western portion of site No.1 remained with him. He has contended that during his absence the defendants in both the suits have encroached upon the western portion of site and put up compound wall. Therefore, the defendants should be directed to demolish the compound wall and handover possession of the encroached area to him.
68. The documents produced by the plaintiff which are all admitted by the defendants clearly show that to the east of site No.2 site No.1 was in existence. It is only in Ex.P.5 the eastern boundary is shown as Jalahalli road. The contention of the defendants is that the entire site No.1 has been taken away by Jalahalli village Panchayath for formation of the road and therefore, the schedule 'B' property is not in existence.
69. It is pertinent to notice that D.W.1 in her cross- examination has admitted that in all the Sale Deeds in respect of site No.2 purchased by her, the eastern boundary is shown as site No.1. But she says that in the Will executed by Captain Simon in favour of Suresh Simon, the eastern boundary is shown as Jalahalli village. D.W.1 has clearly stated in her evidence that she secured all the above 3 documents from Suresh Simon when she purchased the property in the 55 O.S.No.4513/2005 C/W. O.S.No.4855/2006 year 1994. Therefore, it is clear that the Will is in her custody. But D.W.1has not produced the Will in the present case. She has also stated in her evidence that she did not make enquiry as to site No.1 has been converted into a road. In the absence of the Will through which the vendor of P.W.1 acquired the title to the southern portion of site No.2, it is not possible to infer that the road was in existence as the eastern boundary to the property purchased under Ex.P.5.
70. D.W.1 in the cross-examination has stated that there is no land available as alleged by the plaintiff and there is only a small portion available adjacent to this defendant's property which belongs to the village Panchayath, but it is not a site as alleged by the plaintiff. The above portion is the written statement filed by D.W.1 in O.S.No.9510/1997. This written statement is marked as Ex.P31. D.W.1 has admitted the contents of Ex.P31. Therefore, it is clear that there is a vacant small portion available adjacent to the property of D.W.1. She says that space belongs to village Panchayath and now Bengaluru City Corporation. It is pertinent to notice that D.W.1 has not produced any documents to show that the available space adjacent to her site belonged to village Panchayath and now BBMP. Therefore, it is 56 O.S.No.4513/2005 C/W. O.S.No.4855/2006 clear from the evidence of P.W.1 that, there is a vacant space available adjacent to her property.
71. The documents produced by the plaintiff clearly prove that only eastern portion of the site No.1 was taken away for the formation of the road. As already stated Ex.P21, P22 and P23 are the documents to show that only a portion of site No.1 was taken by village Panchayath for formation of the road.
72. From the evidence available on record, it is proved by the plaintiff that only eastern portion of site No.1 was acquired for the formation of the road and western portion of site No.1 was retained by him.
73. The learned counsel for the defendants argued that in Ex.D.1,the Learned Judge has clearly stated that the defendant therein has failed to prove the existence of the western portion in site No.1. The perusal of Ex.D.1 shows that it is a suit filed by the defendant in O.S.No.4513/2005 against the plaintiff for permanent injunction in respect of southern portion of site No.2. 57 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
74. The defendant therein contended that only the eastern portion of site No.1 was acquired and western portion of site No.1 is with him. The Learned Judge concluded that the defendant has not produced any documents to believe that the western portion of site No.1 was retained by him. That suit in O.S.No.9237/1997 was only filed for permanent injunction. The title of the parties was not at all in issue in the above suit. In the present case, the plaintiff has sought for declaration of title in respect of 'A' schedule property which he claimed in his possession in O.S.No.9327/1997. Therefore, any observations made in O.S.No.9327/1997 will not be binding on the plaintiff in the present case.
75. As already stated, the Commissioner's report holds the filed in this case. Since I have already accepted the Commissioner's report it is clear that a portion 'ALND' is the western portion of site No.1. 'ABCD' is the entire site No.1. The portion 'LBCN' is the eastern portion of site No.1 which has been given for formation of the road. The Commissioner has also clearly noted the encroachment made by defendants in both suits as 'AIJG' and 'GJMD'. The defendants have failed to prove their title to the portion marked in Red and Blue in the 58 O.S.No.4513/2005 C/W. O.S.No.4855/2006 sketch Ex.C1(b). Therefore, the plaintiff has proved Issue Nos.1 and 2 in both the suits. Hence Issue Nos. 1 and 2 in both the suits are answered in the Affirmative and Addl. Issue Nos.1&2 in O.S.No.4855/2006 are answered in the Affirmative.
76. Issue No.3 in both the suits:- It is the contention of the defendants that the suit filed by the plaintiff is barred by limitation. The plaintiff in the plaint para-12 has stated that the cause of action for the suit arose on 25.10.1989 on the date on wh8ch the City Civil Court declared the plaintiff as the absolute owner of the entire site No.1 formed in Sy.No.71/1 of Jalahalli Village including the 'A' & 'B' schedule properties in O.S.No.3061/1987 and during the month of December 1997 when the defendants put up the compound wall illegally on the 'B' schedule property and on 13.01.1998 at 4 p.m. on which date, the plaintiff came to know about the illegal encroachment and illegal construction of the compound wall and on other subsequent dates. The defendants have contended that the plaintiff was trying to demolish the compound wall put up by the defendants and therefore, they filed O.S.No.9328/1997 and O.S.No.9327/1997. It is stated that 59 O.S.No.4513/2005 C/W. O.S.No.4855/2006 the plaintiff has filed his written statement in the above suit. It is also contended that during the pendency of the above suit, the plaintiff choose to file the present suit making allegations against the defendant. Hence the suit is barred by limitation.
77. The Learned counsel for the defendants cited a decision reported in ILR 2006 KAR 4251 in the case of A.V.N.Prasad Vs. Sita Bai Raj Puruohit. The Head Note reads as follows:-
" Specific Relief Act, 1963 (Act No. 47 of 1963) -
SECTION 39-GRANT OF MANDATORY INJUNCTION -DELAY IN SEEKING RELIEF - ACQUIESCENCE - HELD, If a person having a right to object has acquiesced in the construction of the structure that is encroached upon, he is not entitled to discretionary remedy of mandatory injunction. - ON FACTS, HELD Even though the construction of wall and garage had come to the notice of the plaintiff in the year 1984, the plaintiff had filed suit in the year 1995 and the plaintiff was certainly guilty of acquiescence- Hence, plaintiff is not entitled to the relief of mandatory injunction."
78. I have gone through the above decision. In the above case, it was held that the plaintiff came to know of the construction of the wall and garage in the year 1984 and he filed the suit in the year 1995 and therefore, it was barred. In the present case, the plaintiff has filed this suit for declaration of title and also for mandatory injunction. Therefore, it is clear that this suit is filed for injunction and also for delivery of possession. Therefore, it is clear that the plaintiff has based his suit under Article. 65 of the Limitation Act. 60 O.S.No.4513/2005 C/W.
O.S.No.4855/2006 The period of limitation is 12 years from the date when the possession of the defendant becomes adverse to the plaintiff.
70. The learned counsel for the defendants has cited a decision reported in ILR 1989 KAR 993 in the case of Dada Jinnappa Khot Vs. Shivalingappa Ganapati Bellanki. The above decision is in respect of Art.58 of the Limitation Act. In the facts and circumstances of the case, Art.58 is not applicable and therefore, the above decision does not apply.
80. The learned counsel for the defendants has also cited MANU/TN/0927/2009 in the case of R.Karmegam and Minor Nallamani rep.by his brother(R.Karmegam) Vs. The State of Tamil Nadu rep. by its District Collector and Ors. I have gone through the above decision. The facts and circumstances of the above case are entirely different from the facts of the present case. Therefore, the above decision does not apply to the facts of the present case. In the case on hand, the plaintiff has clearly stated that the defendants themselves have stated that the plaintiff wanted to demolish the compound wall in the year 1997. Earlier to that, the plaintiff had filed a suit in O.S.No.3061/1987 and had obtained a decree in respect of the entire site No.1 against the village Panchayath. Therefore, from 1997 the plaintiff should have filed the suit within 12 years from that date. This suit is filed in the year 2005 and 2006 respectively. Therefore, 12 years from 1997 have not elapsed as on the date of filing 61 O.S.No.4513/2005 C/W. O.S.No.4855/2006 of these two suits. Therefore, the suit is not barred by limitation. Hence Issue No.3 in both the suits is answered in the Negative.
81. Issue No.4 in O.S.No.4513/2005 and O.S.No.4855/2006:- The plaintiff has valued the suit for possession of the 'B' schedule property, mandatory injunction and for permanent injunction. He has paid the court fee on the market value. The market value of 'B' schedule property is shown as Rs.300/- per Sq.ft. The suit is of the year 2005 and 2006. The valuation made by the plaintiff under Sections.29 & 26(c) is proper and the plaintiff has paid the proper court fee. Therefore, Issue No.4 in both the suits is answered in the Affirmative.
82. Issue No.5 in O.S.No.4513/2005 and O.S.No.4855/2006:- In view of my findings on Issue Nos.1 to 4 in both the suits and Addl. Issue Nos. 1 and 2 in O.S.No.4855/2006 , the plaintiff is entitled for the relief claimed in both the suits. Hence I answer Issue No.5 in both the suits in the Affirmative.
82. Issue No.6 in O.S.No.4513/2005 and O.S.No.4855/2006:- In view of my findings on Issue Nos.1 to 5 in 62 O.S.No.4513/2005 C/W. O.S.No.4855/2006 both the suits and Addl. Issue Nos.1 and 2 in O.S.No.4855/2006, I proceed to pass the following:-
ORDER The suit of the plaintiff in O.S.No.4513/2005 is hereby decreed.
It is hereby declared that the plaintiff is the absolute owner of the plaint 'A' schedule property.
The defendants are hereby directed to quit, vacate and deliver vacant possession of the 'B' schedule property to the plaintiff.
The defendants are hereby directed to demolish the compound wall put up on the 'B' schedule property which is unauthorised and illegal construction made by the defendants at their costs.
If the defendants failed to demolish the compound wall, the plaintiff can demolish the compound wall on his own at the costs of the defendants.
The defendants, their agents, henchmen or anybody claiming under the defendants are hereby restrained from interfering with the peaceful possession and enjoyment of the suit schedule 'A' & 'B; properties by the plaintiff.
The suit of the plaintiff in O.S.No.4855/2006 is hereby decreed.
It is hereby declared that the plaintiff is the absolute owner of the plaint 'A' schedule property. 63 O.S.No.4513/2005 C/W.
O.S.No.4855/2006 The defendants are hereby directed to quit, vacate and deliver vacant possession of the 'B' schedule property to the plaintiff.
The defendants are hereby directed by means of mandatory injunction to remove the fence and water sump in the 'B' schedule property which is unauthorised and illegally made by the defendants at their costs.
If the defendants failed to remove the fence and water sump in the 'B' schedule property, the plaintiff can remove the fence and water sump on his own at the costs of the defendants.
The defendants, their agents, henchmen or anybody claiming under the defendants are hereby restrained permanently from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule 'A' & 'B properties.
Both the parties are directed to bear their own costs.
Draw decree accordingly.
Keep the original Judgment in O.S.No.4513/2005 and keep the copy of Judgment in O.S.No.4855/2006. (Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 24th day of October 2016.) (K.S.THIMMANNACHAR) XII Addl. City Civil & Sessions Judge, Bengaluru 64 O.S.No.4513/2005 C/W. O.S.No.4855/2006 A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiffs' side :
P.W.1: Sri.H.S.Gurunath
(b) Defendant's side :
D.W.1: Smt. Mary Magadalane Raja
D.W.2: Sri.J.W.R.Chinniah
(c) Commissioner's Side:
C.W.1: Sri.Gajanana Hegde
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P1: Power of Attorney by L.Rs of plaintiff Ex.P2: Certified copy of Sale Deed dated 15.06.1997 Ex.P3: Certified copy of Gift Deed dated 14.12.1983 Ex.P4: Certified copy of Sale Deed dated 15.06.1967 Ex.P5: Certified copy of Sale Deed dated 14.11.1994 Ex.P6: Order passed by Hon'ble High Court of Karnataka in Writ Petition No.1365/2006 Ex.P7: Certified copy of Official Memorandum of Office of Deputy Commissioner, Bengaluru dated 20.08.1962 Ex.P8: Certified copy of Sale Deed dated 14.12.1964 Ex.P8(a): Original of Ex.P8 65 O.S.No.4513/2005 C/W. O.S.No.4855/2006 Ex.P9: Certified copy of Sale Deed dated 03.04.1973 Ex.P9(a): Original of Ex.P9 Ex.P10: Spot Mahazar in O.S.No.959/1990 Ex.P11: Certified copy of Judgment in O.S.No.3061/1987 Ex.P12: Spot Mahazar dated 01.02.1992 Ex.P13: Certified copy of Minutes of Meeting dated 29.06.1992 held by Administrator and Secretary of Jalahalli Ex.P13(a) Certified copy of Minutes of Meeting dated 29.06.1992 held by Administrator and Secretary of Jalahalli Ex.P14: Letter issued by PC, Bengaluru Ex.P14(a): Original of Ex.P14 Ex.P15: Certified copy of Order Sheet in E.P.No.959/1992 Ex.P16: Certified copy of Delivery Warrant issued by the said Execution Petition along with Sketch annexed to the Warrant Ex.P17: Certified copy of Assessment Register Ex.P17(a): Original of Ex.P17 Ex.P18: Certified copy of Letter issued by Jalahalli Panchayath dated 12.03.1968 Ex.P18(a): Original of Ex.P18 Ex.P19 & 20: Six Tax Paid Receipts Ex.P19(a) & Originals of Ex.P19 and Ex.P20 P20(a):
Ex.P21: Certified copy of Order dated
01.12.2009 passed by Administrator,
BBMP
Ex.P22: Copy of Letter dated 16.12.2009
written by Principal Secretary, Urban
Development Authority, Bengaluru
66 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
Ex.P23: Reminder dated 11.01.2010
Ex.P24: Certified copy of Order Sheet in
O.S.No.9510/1997
Ex.P25: I.A. filed in O.S.No.9510/1997
Ex.P26: Certified copy of Rough Sketch filed in
O.S.No.3061/1987
Ex.P27: Certified copy of Judgment and Decree
in O.S.No.9328/1997
Ex.P28 & Certified copy of Depositions of P.W.1
29: in O.S.No.9328/1997
Ex.P29(a): Portion of Statement in Page No.5 in
Ex.P29
Ex.P29(b) Portion of Statement in Page No.5 in
Ex.P29
Ex.P30: Office copy of Written Statement in
O.S.No.9510/1997
Ex.P30: Typed copy of Written Statement in
O.S.No.9510/1997
Ex.P31: Certified copy of Written Statement in
O.S.No.9510/1997
Ex.P32: Proceedings of the Govt. of Karnataka
(b) For defendants' side:-
Ex.D1: Certified copy of Judgment and Decree
passed in O.S.No.9327/1997
Ex.D2: Letter issued by Punjab National Bank on
17.03.2003
Ex.D3: Certified copy Sale Deed dated
14.11.1994
Ex.D4: Tax Paid Receipt
Ex.D5: Khatha Certificate
Ex.D6: Khatha Extract
Ex.D7 to 17: Tax Paid Receipts
Ex.D18: Encumbrance Certificate
Ex.D19 & Telephone Bills
20:
67 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
Ex.D21 to Water Supply Bills
25:
Ex.D26: Certified copy of Sale Deed dated
15.06.1997
Ex.D27: Certified copy of Gift Deed dated
14.12.1983
Ex.D28: Certified copy of Encumbrance
Certificate
Ex.D29: Certified copy of Tax Demand Register
Ex.D30: Certified copy of Acknowledgment issued
by BBMP
Ex.D31: Certified copy of Special Notice
Ex.D32: Certified copy of Tax Paid Receipt
Ex.D33 to 10 Tax Paid Receipts
42:
(c) For Commissioner's side:-
Ex.C1: Report filed in O.S.No.4513/2005
Ex.C1(a&b): Sketch Nos.1 and 2
Ex.C2: Spot mahazar
Ex.C3: Rough sketch
Ex.C4: Report filed in O.S.No.4855/2006.
(K.S.THIMMANNACHAR)
XII Addl. City Civil & Sessions Judge,
Bengaluru
68 O.S.No.4513/2005 C/W.
O.S.No.4855/2006
(Judgment pronounced in open court)
The suit of the plaintiff in
O.S.No.4513/2005 is hereby decreed.
It is hereby declared that the
plaintiff is the absolute owner of the
plaint 'A' schedule property.
The defendants are hereby
directed to quit, vacate and deliver vacant possession of the 'B' schedule property to the plaintiff.
The defendants are hereby directed to demolish the compound wall put up on the 'B' schedule property which is unauthorised and illegal construction made by the defendants at their costs.
If the defendants failed to demolish the compound wall, the plaintiff can demolish the compound wall on his own at the costs of the defendants.
The defendants, their agents, henchmen or anybody claiming under the defendants are hereby restrained from interfering with the peaceful possession and enjoyment of the suit schedule 'A' & 'B; properties by the plaintiff.
The suit of the plaintiff in O.S.No.4855/2006 is hereby decreed.
It is hereby declared that the plaintiff is the absolute owner of the plaint 'A' schedule property.
The defendants are hereby directed to quit, vacate and deliver vacant 69 O.S.No.4513/2005 C/W. O.S.No.4855/2006 possession of the 'B' schedule property to the plaintiff.
The defendants are hereby
directed by means of mandatory injunction
to remove the fence and water sump in
the 'B' schedule property which is
unauthorised and illegally made by the
defendants at their costs.
If the defendants failed to remove
the fence and water sump in the 'B'
schedule property, the plaintiff can
remove the fence and water sump on his
own at the costs of the defendants.
The defendants, their agents,
henchmen or anybody claiming under the
defendants are hereby restrained
permanently from interfering with the
plaintiff's peaceful possession and
enjoyment of the suit schedule 'A' & 'B
properties.
Both the parties are directed to
bear their own costs.
Draw decree accordingly.
Keep the original Judgment in
O.S.No.4513/2005 and keep the copy of
Judgment in O.S.No.4855/2006.
(vide Judgment passed)
XII ACCJ;Bangalore
70 O.S.No.4513/2005 C/W.
O.S.No.4855/2006