Bangalore District Court
M. Chandrashekar vs Shakuntalamma on 22 January, 2015
IN THE COURT OF THE XLIII ADDL.CITY CIVIL &
SESSIONS JUDGE, CCH 44, BANGALORE.
Dated: 22nd day of January 2015
PRESENT
SHRI. K.H. MALLAPPA, B.A., LL.B.
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
CCH-44, BANGALORE.
O.S. No.5611/2005
PLAINTIFF/S: M. Chandrashekar,
S/o. Muthappa,
Aged about 30 years,
R/o.No.163-D,
Near Raghavendra Colony,
Behind IIM Institute,
Bilekahalli Village,
Bangalore 560 076.
(By advocate Sri.K.N.Subbareddy)
Vs.
DEFENDANTS: 1. Shakuntalamma,
W/o. Venkataswamy,
Aged about 52 years.
2. Venkataswamy,
S/o. Thimmaiah,
Aged about 62 years.
Both are residing at
No.1447, Bilekahalli,
Behind IIM Institute,
Bangalore 560 076.
2 O.S.No.5611/05
D1 - By advocate Sri.G.Manohar
D2 - By Advocate Sri. K.V.Shenoy
Date of institution of the suit : 27/7/2005
Nature of the suit : Injunction
Date of commencement of
recording of the evidence : 29/1/2011
Date on which the judgment
was pronounced : 22/01/2015
Years Months Days
Duration : 09 05 25
(K.H.MALLAPPA)
XLIII Addl. City Civil & Sessions Judge,
C.C.H.44, BANGALORE.
JUDGMENT
This is a suit filed by the plaintiff for the relief of Permanent Injunction restraining the defendants or anybody claiming through them from interfering with the suit schedule property and such other reliefs. 3 O.S.No.5611/05
2. The brief facts of the plaint are :-
Plaintiff is the absolute owner in possession and enjoyment of suit schedule property bearing assessment No.240/94, division No.176, New No.240/176/E situated at Bilekahalli village, Begur hobli, Bangalore South Taluk, measuring east to west 90 feet, north to south 27 feet including 3 feet passage/setback on the eastern boundary.
Originally his grand father by name Krishnappa was the owner of the schedule property. In fact he acquired 11 guntas of land in Sy.No.112/1 out of total measurement of 1 acre 25 guntas. Thereafter he conveyed and transferred the said property to his sons Muthappa @ Muthuswamy Mudalier ie,.
Father of plaintiff by way of registered 4 O.S.No.5611/05 settlement deed dated 17/1/1981. Father of the plaintiff in order to avoid future complications and difference in the family, divided 11 guntas of land as 5 sites and gave each site to his wife and his 4 children including the plaintiff through partition deed dated 20/1/1995. Thus the schedule property came to the share of plaintiff. After the partition the khata has been changed in favour of plaintiff in favour of schedule property.
ii) Ever since the date of partition plaintiff is in lawful, peaceful and uninterrupted possession and enjoyment of the schedule property by discharging all acts of absolute ownership over the same. He has constructed a residential house in the schedule property leaving three feet passage on the entire back side ie., on the eastern side 5 O.S.No.5611/05 of the schedule property. In fact the brothers of plaintiff have also constructed residential houses in their respective portion by leaving the same 3 feet passage as setback on the eastern side. The said passage belongs to the plaintiff and is a part of the schedule property to which plaintiff has acquired title by partition.
iii) 1st defendant claims to be the owner of the house property bearing No.1447, Belikahalli, Behind IIM Institute, Bangalore, which is situated towards the east of the schedule property and behind the house of plaintiff, 2nd defendant is the husband of 1st defendant. Defendants have no semblance of right, title or interest whatsoever over the schedule property and they are utter aliens or strangers to the schedule property.
6 O.S.No.5611/05Defendants have attempted to trespass into the schedule property and dig the foundation on the 3 feet passage on 11/7/05 with an intention to construct a bathroom. However plaintiff with the help of neighbours and his father and brothers managed to stop the illegal construction of the defendants over the schedule property. Thereafter plaintiff approached the police, but they refused to interfere since the matter is of civil nature. Defendants once again on 19/7/05 interfered with the possession of plaintiff and started to dig in the passage area of the schedule property with more workers. Plaintiff resisted the same, defendants stopped the work with the caution that they will construct the bathroom in the passage. The attempt on the part of the defendants is highly illegal and unwarranted. In the event the defendants 7 O.S.No.5611/05 succeed in their attempt, it will obstruct free light and air to the plaintiff's house. Hence this suit.
3. Defendants appeared through their counsel and during the pendency of the suit, 2nd defendant died.
4. 1st defendant has filed written statement contending that the suit is frivolous, vexatious and unsustainable both in law as well as on the facts. The averments made in para-3 of the plaint are not known to the 1st defendant. The averments made in para-4 of the plaint are not known to the 1st defendant. Further averments made by the plaintiff that father of plaintiff in order to avoid future complications in the family, divided 11 guntas of land as sites and gave each site to his wife and four children including the plaintiff through partition deed dated 21/1/1995 is not known to the 1st defendant. It is true that defendants are the owners of 8 O.S.No.5611/05 house property bearing No.1447, Bilekahalli, IM post, Bangalore which is situated towards the east of the plaintiff's property and the defendants are enjoying their property along with this family members. It is false that the defendants attempted to trespass upon the plaintiff's property. At no point of time defendants have trespassed upon the property of plaintiff. As a matter of fact, it is the plaintiff who is trying to encroach upon the lands of the defendants, which has been constructed by the defendants.
5. It is further contended that even as per the averment of the plaintiff and on the basis of the documents produced by him, his father acquired property measuring 11 guntas, out of 1 acre 25 guntas, comprised in Sy.No.112/1 vide settlement deed executed by his grandfather and the boundaries for the said item of property has been described as on the east - Thimmaiah's land, on the west - Government voni, on 9 O.S.No.5611/05 the North - Grama Tana and on the south - portion of property retained by his grandfather. The 11 guntas of land measures 11,979 sft. In total. As per the partition deed produced and as per the averments of the plaintiff, his father divided the said land as 5 sites, each measuring 90x27 feet and totally 12,150 sft., which is 171 sft., more than the holding of his father. Having acquired 11,979 sft vide settlement deed, he would not have partitioned and given to the share of the wife and daughter 12,150 sft., which will amply prove that the plaintiff has himself misconceived the facts and as a matter of fact it is they who have encroached upon the land of defendants, to the extent of 171 Sft. The boundaries shown for 11 guntas of land is Government voni on the western side, Thimmaiah's property on the east. As a matter of fact, the Government Voni has been widened and formed as road, for which a portion of land belonging to plaintiff and his brothers has been acquired and there is no question of the defendants encroaching 10 O.S.No.5611/05 upon the lands of the plaintiff nor has the plaintiff left any space as passage/setback on the boundary of his property and hence the suit is liable to be dismissed with costs of the defendant.
6. It is further contended that plaintiff has approached the jurisdictional police station for taking action on the matter, wherein he has informed the concerned station house officer that he has applied to the survey department to fix the boundary for the suit schedule land and the lands belonging to the defendants, for which the defendants have agreed. Since plaintiff is fully aware of the fact that he has encroached upon the lands belonging to the defendants, he has come before this Court with fictitious suit of claiming a right over the open space belonging to the defendants, claiming that it is the passage/setback area left by them and hence, the suit is liable to be dismissed with cost of the defendants. There is no compound wall or fencing on 11 O.S.No.5611/05 the boundary of the plaintiff's land and defendants land and the defendants have no objection for employing the services of survey department of the Government and get the properties measured and boundaries fixed, to avoid any future misunderstanding in between the parties and defendant No.1 prays to dismiss the suit with the cost of defendants.
7. On the above pleadings the following issues have been framed :-
1. Whether plaintiff proves that he is in peaceful possession and enjoyment of suit property?
2. Whether plaintiff proves that the defendants are illegally interfering and causing obstruction to his peaceful possession and enjoyment of suit property?12 O.S.No.5611/05
3. Whether plaintiff is entitled for the reliefs sought for?
4. What order or decree?
8. In order to prove the case of the plaintiff, Power of Attorney holder of the plaintiff got herself examined as P.W.1 and got marked Ex.P1 to Ex.P8. On behalf of defendants, 1st defendant got herself examined as D.W.1 and got marked Ex.D1 and Ex.D2.
9. I have heard the arguments of the Learned Counsel for the plaintiff as well as defendants.
10. My findings on the above issues are as under:
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 :-
13 O.S.No.5611/05
REASONS
11. Issue Nos.1 & 2 :- It is the definite case of the plaintiff that defendants have attempted to dig the foundation in the passage/setback left by the plaintiff on the eastern side. 1st defendant has filed the Written Statement disputing the allegations of the plaintiff and contended that it is the plaintiff and his brothers who have encroached upon the land of the defendants and 1st defendant has clearly narrated how the total extent owned by plaintiff's grandfather which was divided by plaintiff's father between his wife and sons is different to the total extent. When such being the situation, plaintiff ought to have entered the witness box, whereas the Power of Attorney holder of the plaintiff who is the mother of the plaintiff got examined as P.W.1 and she has admitted in the cross examination that she has not understood what is written in her examination chief affidavit and she has admitted that her son has got 14 O.S.No.5611/05 written her examination chief affidavit. She has identified the photograph showing the house of her son as per Ex.D1, she claims that her son has filed this suit for the whole property measuring 90x135 feet. Further she admits that to the east of 11 guntas, compound wall of IIM is situated, earlier there was a small 'oni' towards the eastern side of the IIM compound and the said 'oni' was measuring about 8 feet width and the said 'oni' has been converted into 30 feet tar road, the said road was formed after IIM compound was built, it may be for formation of the said road, place situated to the east of the 'oni' has been utilized and she admits that 1st defendant has built shed towards the east of plaintiff's house and she has identified the photograph depicting the construction of the house by plaintiff as per Ex.D2. The sheet house appearing in Ex.D2 has been put up by 1st defendant. She has contended that the extent of the plaintiff's house from road side that is east to west 87 feet. She denied the suggestion that the said house is 15 O.S.No.5611/05 94 ½ feet east to west. The house situated at the north of plaintiff's house belongs to her son Ramaswamy and the said Ramaswamy has built the house as shown in Ex.D2 towards 1 or 1 ½ feet inside. Further she admits that the eastern boundary mentioned in Ex.P2 is the property of defendant No.1 and her family. Further she admits that the eastern boundary and the western boundary in Ex.P3 is shown as Thimmaiah's property and road respectively.
12. On perusal of Ex.D1 and Ex.D2 coupled with the admission of P.W.1, it is evident that there is no passage or setback towards the eastern side of plaintiff's property as contended by the plaintiff and as such plaintiff has failed to prove that plaintiff is in peaceful possession and enjoyment of suit property and defendants are illegally interfering and causing obstruction to plaintiff's peaceful possession and 16 O.S.No.5611/05 enjoyment of suit property. Hence I answer issues 1 and 2 in the negative.
13. Issue No.3 :- In view of my findings on issues 1 and 2, plaintiff is not entitled for the reliefs sought for. Hence I answer issue No.3 in the negative.
14. Issue No.4 :- In view of my findings on the above issues, I proceed to pass the following :-
ORDER The suit of the plaintiff is dismissed with costs.
(Dictated to the Judgment Writer, computerized by her, corrected, signed and then pronounced by me in the open court, on this the 22nd day of January 2015) (K.H.MALLAPPA) XLIII Addl. City Civil & Sessions Judge, C.C.H.44, BANGALORE.17 O.S.No.5611/05
ANNEXURE List of witnesses examined for the plaintiff/s:-
P.W.1 Rathnamma List of witnesses examined for the defendant/s:-
D.W.1 Shakunthalamma List of Exhibits/Documents marked for the plaintiff/s:-
Ex.P1 General Power of Attorney
Ex.P2 Settlement deed
Ex.P3 Partition deed
Ex.P4 Encumbrance Certificate
Ex.P5 Negative photographs
Ex.P6,7 Positive photographs
Ex.P8 Endorsement
List of Exhibits/documents marked for the defendant/s:
Ex.D1 Photograph
Ex.D2 Photograph
(K.H.MALLAPPA)
XLIII Addl. City Civil & Sessions Judge, C.C.H.44, BANGALORE.