Bangalore District Court
Smt. Vijayalakshmi Singh vs Sri. Manjunatha Swamy on 11 August, 2021
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 11th day of August, 2021.
O.S.No.26494/2014
Plaintiff:- Smt. Vijayalakshmi Singh,
W/o Sri. Madan Singh,
Aged about 39 years,
R/at No.241, 2nd Stage, 2nd Cross,
Motappanapalya, Indiranagar,
Bangalore-560 038.
[By Sri. B. J. Janardhana Reddy -
Adv.]
V/s
Defendants:- 1. Sri. Manjunatha Swamy
Temple Trust,
Situated at Motappanapaya,
Indiranagar Post,
Bangalore-38, Represented by
its Secretary Sri. U. Muniyappa
2 OS No.26494/2014
2. The Commissioner,
Hudson Circle,
N. R Road,
Bangalore.
3. The Assistant Executive
Engineer,
BBMP, Domlur Range,
Bangalore.
[By CNT- Adv for Defendant No.1]
[By KVM- Adv for Defendant Nos.2 and
3]
Date of Institution of the suit 31.10.2014
Nature of the (Suit or pro-note,
suit for declaration and
Injunction Suit
possession, suit for injunction,
etc.)
Date of the commencement of
06.12.2018
recording of the Evidence.
Date on which the Judgment was 11.08.2021
pronounced.
Year/s Month/s Day/s
Total duration 06 09 11
LXXII ADDL.CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
3 OS No.26494/2014
JUDGMENT
Initially the present suit is filed for the relief of Permanent Injunction. Subsequent the same was got amended, seeking the relief of Mandatory Injunction and Declaration.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, she is the owner of the Suit Schedule A-Property, as she has received the said property from her grandmother by virtue of the Gift Deed dtd.03.07.2009. She alongwith her family members is in peaceful possession and enjoyment of the said property. The Khatha of the said property is standing in the name of her grandmother Muniyamma. She has applied to the Bruhat Bengaluru Mahanagara Palike authorities for change/transfer of Khata in her name. The same is pending for consideration.
The Defendant No.1 is the owner of the Suit Schedule B-Property, as per the Gift Deed dtd.10.02.2004. The said property situates towards the eastern side of the Suit Schedule A-Property.4 OS No.26494/2014
She had filed a suit at OS No.3245/2011 on the file of Addl. City Civil Judge, Bengaluru(CCH-7) for the relief of Permanent Injunction, praying to restrain the Defendant No.1 Trust from interfering in her possession over the Suit Schedule B-Property i.e., the passage area. The said suit came to be dismissed on merits on 25.09.2014. The cause of action for filing the said suit was different, than the cause of action for filing the present suit.
On 02.10.2014 and subsequent to it, the Defendant No.1 alongwith other trustees and their agents, workers and henchmen had illegally, arbitrarily, forcibly and in contravention in law, had broken down ACC roofed sheets; damage the wall on the eastern side of her property; removed the water pipeline and water meter provided by BWSSB and also closed down the drainage/chamber connected to the Suit Schedule A-Property with cement concrete and is illegally constructing the building, in contravention with the KMC Act and byelaws. The Defendant No.1 without having any right, title or interest and without obtaining the sanction plan from the BBMP is constructing the unauthorized building by putting up pillars/walls abutting the wall of her 5 OS No.26494/2014 property, on the land more than what it has been acquired under the Gift Deed. As per the Gift Deed, the area is measuring East to West:10 feet, but it has taken up construction in the area measuring East to West:13 feet by encroaching upon the land, under her utilization and on illegally demolishing the ACC roof sheets and the wall belonging to her. She had approached the Defendant No.3 with specific Complaint against the Defendant No.1, but the Defendant No.3 except inspecting the spot has not addressed her grievance till date.
The rain water is seeping into her house as the Defendant No.1 has illegally broken down the ACC sheet roof and has substantially damage the wall of her house, without any right or authority. She had approach the police authorities, but they have not taken any steps. The Defendant No.1 has also closed down the door and windows of the Suit Schedule A-Property, on causing threat to her right to air and light. The said act of the Defendant No.1 is an unauthorized interference with the use and enjoyment of her property. Construction of the building undertaken by the Defendant No.1 in the Suit Schedule B Property abutting the wall of the Suit 6 OS No.26494/2014 Schedule A-Property is without leaving the setback as per the plan sanctioned or it is in contravention with the plan sanctioned and on encroaching the utility land.
The Plaintiff by amending the suit plaint has got incorporated Para Nos.11(a) and 11(b), contending that, the Defendant No.1 has got created the Gift Deed dtd. 01.06.2015 inrespect of the disputed land area measuring East to West:3 feet and North to South:20 feet, situated on the eastern side of her property. The doner under the said Gift Deed has no right, title or interest to execute such gift infavour of the Defendant No.1 and the said Gift Deed has been created by using the forged, false, sham and bogus revenue documents. The said Gift Deed dtd. 01.06.2015 is an outcome of fraud, it is not a legal document, thus not binding on her. Consequently, the building constructed on the disputed area is illegal and the same is liable to be demolished and the disputed area is to be declared as vested with the BBMP Bengaluru, meant for public purpose, as public lane running between the buildings and except the BBMP Bengaluru, nobody else has any right, title and interest over the said disputed area. The 7 OS No.26494/2014 building constructed by the Defendant No.1 in the disputed area is without any legal basis and it is an illegal building. The Defendant No.1 has no authority to construct such building and the same is liable to be demolished byway of Mandatory Injunction. Thus, prayed to decree the suit.
a) by canceling the Gift Deed dtd.01.06.2016;
b) by declaring the disputed land area measuring East to West:3 feet and North to South:20 feet, shown as the Scheduled property under Gift Deed dtd.01.06.2015 as a public lane, absolutely vest with the BBMP Bengaluru;
c) to declare the building constructed by the Defendant No.1 in the disputed area measuring 3 feet X 20 feet is without any right, title or interest and in violation of KMC Act, without obtaining any approved plan;
d) to issue Mandatory Injunction directing the Defendant No.1 to demolish the building constructed in the disputed area measuring East to West:3 feet and North to South:20 feet;
e) to issue Mandatory Injunction directing the Defendant No.1, to restore the position by repairing 8 OS No.26494/2014 the ACC roof and the damaged wall of the Suit Schedule A Property;
f) to issue Permanent Injunction restraining the Defendant No.1 from putting up construction of the building abutting the Suit Schedule B Property, in violation of the KMC Act and byelaws.
Thus, prayed to decree the suit.
3. Suit Summon was issued to the Defendants. The Defendants have appeared through their respective counsels on 20.11.2014. The Defendant No.1 has filed its Written Statement on 28.11.2014. Written Statement and objections to IA No.2 of the Defendant Nos.2 and 3 is taken as 'Not filed' on 16.01.2015.
4. The Defendant No.1 in its Written Statement has denied all the allegations made by the Plaintiff in the Suit Plaint, and has specifically contended that, the Plaintiff has not approached the Court with clean hands and has filed the present suit with a malafide intention to harass it. Earlier suit filed by the Plaintiff at OS No.3245/2011 was dismissed. The Plaintiff cannot maintain the present suit, inview of the bar 9 OS No.26494/2014 contend in Sec.321 and 395 of the KMC Act. It is true for the Plaintiff to contend that, she has acquired Suit Schedule A-Property under the Gift Deed, but the measurements shown are false. The Plaintiff has nothing to do with the constructional activities carried on by the Defendant, in its property. It is false for the Plaintiff to contend that, this Defendant has illegally broken down ACC sheet roof and has substantially damaged the wall of her house, without any right or authority and has illegally removed the BWSSB water meter, water pipeline and drainage/chamber, as contended by her. The Defendant being the Temple Trust having constructed the Temple of Lord Manjunatha Swamy, is putting construction of the property owned and possessed by it. The said Trust is being formed to protect the rights of the Temple and has not caused any damages to the Plaintiff, as contended by her. The Plaintiff herself has not left any setback and has not obtained any plan or license for constructing the building. There is no cause of action for the Plaintiff, for filing the present suit. The one shown is imaginary and invented one. Hence prayed to dismiss the suit of the Plaintiff.
10 OS No.26494/2014The Defendant No.1 has filed his additional Written Statement on 01.09.2018 denying the averments of the incorporated Para Nos.11(a) and 11(b) by the Plaintiff byway of amendments to the Suit Plaint. The relief claimed by the Plaintiff under amendment is barred by law of limitation. The Plaintiff has not paid the Court fees, as required by law. Thus the Plaintiff is not entitle for the reliefs, as claimed by her.
5. On the basis of the original pleadings of the parties, Learned predecessor in office has framed the following Issues on 18.10.2016, as under:
ISSUES
1. Whether the Plaintiff proves that she is the absolute owner and in lawful possession and enjoyment of the Suit Schedule Property as on the date of suit?
2. Whether Plaintiff proves the alleged interference of the Defendants?
3. Whether the Plaintiff proves that, she is entitle for Permanent Injunction as prayed for?11 OS No.26494/2014
4. What order or decree?
Due to amendment of the Suit Plaint by the Plaintiff and denial of the said contentions by the Defendant No.1, following Additional Issues have been framed by this Court on 01.09.2018.
1. Whether the Plaintiff proves that the disputed land area measuring East to West 3 feet and North to South 20 feet (area as described in the Gift Deed dtd.01.06.2015) alongwith the easter side of the Suit Schedule Property is a public lane of which the ownership rests with the BBMP?
2. Whether the Plaintiff proves that that, the building constructed by the Defendant No.1 abutting the Suit Schedule Property i.e., the disputed area measuring 3 X 30 feet is in violation of KMC Act.?
3. Whether the Plaintiff proves that the alleged registered Gift Deed dtd.01.06.2015 said to be have been executed infavour of Defendant No.1 inrespect of the disputed land area measuring East to West 3 feet and North to South 20 feet situated towards the eastern side of the Plaintiffs property is created, sham and bogus and outcome of fraud, 12 OS No.26494/2014 said to have been brought in force during the pendency of the suit?
4. Whether the Plaintiff is entitle for relief of cancellation of registered Gift Deed dtd.01.06.2015?
5. Whether the Defendant proves that the suit of the Plaintiff on its amendment, is hit by law of limitation?
6. Whether the Plaintiff proves that the Court fees paid by her is proper?
7. Whether the Plaintiff is entitled for the reliefs claim in the amended Suit Plaint?
8. What order or decree?
6. Initially the case was made-over to CCH-
21. The same was transferred to this Court on 01.09.2018 by virtue of the notification No ADM- I(A)413/2018 dated 31.07.2018.
7. The Plaintiff inorder to prove her case got herself examined as PW1 and has got marked 26- documents as Ex.P.1 to Ex.P.26. PW.1. was cross examined on behalf of the Defendant No.1 on 11.07.2019 and 07.08.2019.
13 OS No.26494/2014Plaintiff got examined witness by name Lakshman S/O Ramaiah as PW.2 on 16.11.2019. PW.1 was cross examined on behalf of the Defendant No.1 on 23.01.2020.
Percontra, the Defendant No.1 got examined its President as DW.1 and got marked 11 documents as Ex.D1 to Ex.D11. DW.1 was cross examined on behalf of the Plaintiff on 11.02.2021. Ex.P27 and Ex.P28 were got marked on confrontation to DW.1.
8. The matter was posted for Arguments. Heard the arguments of the Learned Counsels for the Plaintiff and Defendant No.1, respectively Inspite of affording sufficient opportunity, to the Defendant Nos.2 and 3, they have neither filed their Written Statement nor advance their Arguments.
Hence, arguments of the Defendant Nos. 2 and 3was taken as "Not Addressed" on 04.08.2021.
9. My findings on the above said issues are as under:
Issue No 1 : Partly in the Affirmative;
Issue No 2 : In the Affirmative;
Issue No 3 : In the Affirmative;
Addl.Issue No.1 : In the Negative;
14 OS No.26494/2014
Addl.Issue No.2 : Partly in the Affirmative; Addl.Issue No.3 : In the Affirmative; Addl.Issue No.4 : Partly in the Affirmative; Addl.Issue No.5 : In the Negative; Addl.Issue No.6 : In the Negative; Addl.Issue No.7 : Partly in the Affirmative; Issue Nos. 4 & 8 : As per final order for the following;
:R E A S O N S:
10. ISSUE No.1:
The Plaintiff contends that, she is the absolute owner in Possession and enjoyment of the Suit Schedule A Property, as she has received the said property from her grandmother, under the Registered Gift Deed dated 03.07.2009. Further she contends that her grandmother had purchased the said property.
10.01. The Plaintiff has produced the certified copy of the Registered Gift Deed dated : 03.07.2009 at ExP1. As per this document it is seen that Smt. Muniyamma, W/o. Annaiah, has gifted property bearing new Municipal No. 241, PID 72-21-241, situated at Mothappana Palya, KR Puram Hobli, Bengaluru East Taluk, measuring East to West 20 ft.
and North to South 20 ft., within the boundaries to the East : by Private Property; to the West : by 15 OS No.26494/2014 Temple; to the North : by Site No.103; and to the South : by Road, to her granddaughter Vijayalakshmi Singh, D/o. Vajrappa and W/o. Madan Singh, out of love and affection. This document also evidences that the donee has accepted the Gift made to her by her granddaughter Muniyamma; and she has been put into actual possession of the property on the day of Gift itself.
11. The Defendant No.1 contends that though the Plaintiff has received Suit Schedule A Property by way of Registered Gift deed dated : 03.07.2009 - ExP1, but the measurements shown in the said Gift Deed are incorrect. And further contends that the said property measures East to West: 13 ft. and North to South: 20 ft.
12. The Plaintiff contends that her granddaughter had purchased the said property under the Registered Sale Deed.
12.01. The Plaintiff has produced the certified copy of the Registered Gift Deed dated : 03.07.2009
- EXP1. As per the recitals in the said document, more specially, at Page No.2, it can be seen that the doner Smt. Muniyamma has acquired the said 16 OS No.26494/2014 property by virtue of the Registered Sale Deed dated : 16.09.1963, registered in the Office of the Sub Registrar, Bengaluru South Taluk, at document No. 3019/1963-64.
12.02. The Plaintiff has not produced either the Original Registered Sale Deed dated : 16.09.1963 or certified copy of the said document.
12.03. Coming to ocular evidence on this point more specially, cross examination of PW1 at Page No.12, Para No.2, which reads as under :
"It is false to suggest that my grandmother Muniamma purchased the property measuring East to West 13 feet and North to South 20 feet as per the Registered Sale-deed dtd.16.09.1963. It is true to suggest that I have produced the said Sale Deed in OS No.3245/2011 as Ex.P2. I do not know whether my grandmother Muniamma had purchased the above stated property from Krishna Reddy. Originally Gift Deed dtd.03.07.2009 is produced in OS No.3245/2011, of which I have produced the certified copy at Ex.P1. It is true to suggest that my grandmother Muniamma has received the property which she has gifted me as per the Gift Deed dtd.03.07.2009, as per the Registered Sale-deed dtd.16.09.1963. Apart from Gift Deed 17 OS No.26494/2014 dtd.03.07.2009-Ex.P1, I do not have any document to show that, my grandmother Muniamma was possessing the property measuring East to West 18 feet and North to South 20 feet."
As per this evidence, the Plaintiff/PW1 denies the suggestion made to her that her grandmother had purchased the property measuring East to West : 13 ft.; and North to South: 20 ft., under the Registered Sale Deed dated: 16.09.1963. Further, she admits that she had produced the Sale Deed dated : 16.09.1963 in O.S.NO. 3245/2011 at ExP2. She pleads her ignorance that, whether her grandmother had purchased the said property from Krishna Reddy, but admits that her grandmother had received the property which is the subject matter of the Gift Deed dated : 03.07.2009, as per the Registered Sale Deed dated : 16.09.1963. Further, she contends that except the Gift Deed - ExP1 she do not have any other document to show that her grandmother Muniyamma was possessing the property, measuring East to West : 18 ft. ; and North to South : 20 ft.
18 OS No.26494/201412.04. The Defendant No.1 has produced the certified copy of the Registered Sale Deed dated :
16.09.1963, at ExD11. As per this document it is seen that Muniyamma, W/o. Munirathnam had purchased the property - Site forming part of Sy.No.9/2 situated in Muthappana palya, a Hamlet of Thippasandra Village, Krishnarajapura Hobli, Bengaluru South Taluk, measuring East to West 13 ft.; and North to South 20 ft., bounded to the East by : Doddatayappa's Land; to the West by : Well; to the North by : Site NO.108; and to the South : by Road, from Krishna Reddy, S/o. Thimma Reddy, for the valuable consideration of Rs.100/-. Further, this document also evidences that the purchaser has been put into actual possession of purchased property, on the day of its purchase.
12.05. When the Plaintiff admits that her grandmother had acquired the property under the Registered Sale Deed dated : 16.09.1963, the certified copy of which is produced by the Defendant No.1 at ExD11. As per the said document, the property purchased by the grandmother of the 19 OS No.26494/2014 Plaintiff measures East to West : 13 ft.; and North to South : 20ft.
Further when the Plaintiff contends that she has received the Suit Schedule A Property from her grandmother, then under such circumstances, the Plaintiff will not have better title and the extent of the property which her grandmother had possessed. When the grandmother of the Plaintiff has acquired the property measuring East to West : 13 ft.; and North to South : 20 ft., then the Plaintiff will acquire the said property from her grandmother with the same measurements, but not with more measurements, then what her grandmother had acquired under the Sale Deed dated : 16.09.1963.
Further, it is not the case of the Plaintiff that her grandmother had acquired the Suit Schedule A Property under two different Sale Deeds, inorder to say that the property acquired under one Sale Deed measures East to West : 13 ft. ; and North to South :
20 ft.; and had acquired another property under another Sale Deed measuring, East to West : 5 ft.,;
and North to South : 20 ft., So that on amalgamation, both the properties forming single property, measuring East to West : 18 ft.; and North 20 OS No.26494/2014 to South : 20 ft. In the absence of such evidence, it is hard to believe that the Plaintiff has acquired the property from her grandmother under the Gift Deed - ExP1 measuring East to West : 18 ft.; and North to South : 20 ft.
12.06. As per the Principles underlying under Sec. 8 of Transfer of Property Act, which deals with the maxim, "NEMO DAT QUOD NON - HABET", which means a person cannot divest the rights to another person what he himself does not possess.
Applying the said proposition of law to the instant case at hand, when the grandmother of the Plaintiff had acquired the property under ExD11 - Sale Deed dated : 16.09.1963, measuring East to West : 13ft; and North to South : 20 ft., only that much area and measurement of the property, or less than that she can divest to the Plaintiff by way of transfer, and not more than that.
Even though the measurements shown in the Gift Deed dated : 03.07.2009 - ExP1, of the property is East to West : 18 ft.; and North to South: 20 ft., the same cannot be considered, in the absence of any cogent evidence, with regard to possessing the 21 OS No.26494/2014 property of such measurements by the grandmother of the Plaintiff; and in presence of the Sale Deed dated : 16.09.1963 - ExD11.
12.07. Thus, as per the ocular and documentary evidence on record, it can be concluded that the Plaintiff has acquired the property measuring East to West : 13 ft.; and North to South 20 ft., under the Registered Gift Deed dated :
03.07.2009 - ExP1.
Thus, the Plaintiff has proved that she is the owner in possession of the property shown as the Suit Schedule A Property, measuring East to West :
13 ft; and North to South 20 ft.
Hence, I answer ISSUE NO.1 PARTLY IN THE AFFIRMATIVE.
13. ADDL. ISSUE NOS. 3 AND 4 :
Since both these issues are interlinked with each other, inorder to avoid repeatation and confusion in the discussion, both these issues are taken up for joint discussion.
13.01. Initially, the Plaintiff in Para No.4 of her suit Plaint had contended that Defendant No.1 is the 22 OS No.26494/2014 owner of the property being vacant site, bearing portion of Site Nos. 7 and 8 measuring East to West :
10 ft.; and North to South : 30 ft., under the Registered Gift Deed dated : 10.02.2004, which is shown as the Suit Schedule B Property. And the said property is located towards the Eastern side of Suit Schedule A Property.
The Defendant No.1 in Para No.10 of its Written Statement has admitted the said contentions taken up by the Plaintiff in Para No.4 of the suit Plaint.
13.02. The Defendant No.1 contends that, it has received the Suit Schedule B Property from B.M. Basheer Khan, under the Registered Gift Deed dated:
30.01.2004. The Defendant No.1 has produced the Original Registered Gift Deed dated : 30.01.2004 at ExD2. As per this document, it is seen that M. Basheer Khan, S/o. Late. Abdul Majeed Khan, has gifted the Property bearing portion of Site Nos. 7 and 8, Khata No.186/A to F, property No.8/2, situated at Mothappana Palya, Thippasandra Dhakale, Krishnarajapura Hobli, Bengaluru East Taluk, measuring East to West : 10 ft.; and North to South :
30 ft., bounded to the East : by portion of Property 23 OS No.26494/2014 No.240/2 retained by the doner; to the West : House belonging to Muniyamma; to the North : Portion of Property No. 240/2, retained by the doner and to the South : by Road, to Sri Manjunatha Swamy Temple Trust, represented by its President, Vice President and Secretary. Further, this document also evidences that the President, Vice President and Secretary of the donee Trust had accepted the Gift of the property made by the doner and the donee Trust has been put into actual possession of the gifted property on the day of its Gift.
13.03. During the course of trial, the Plaintiff got amended the suit Plaint by getting incorporated Para No.11(a) and 11(b) contending that the Defendant No.1 has got created the Gift Deed dated : 01.06.2015, which the Defendant No.1 has denied the said fact in its additional Written Statement filed by it.
13.04. The Plaintiff has produced the certified copy of the Gift Deed dated : 01.06.2015 at ExP14.
The Defendant No.1 has produced the Original Registered Gift Deed dated : 01.06.2015 at ExD3.
24 OS No.26494/2014ExP14 is the certified copy of ExD3 Original Gift Deed. As per this document it is seen that, Mohan Babu.A.K., S/o.Late.T.Krishna Reddy, has gifted portion of Khata No. 373/A, situated at Mothappana Palya, Thippasandra Dhakale, K.R. Puram Hobli, Bengaluru East Taluk, measuring East to West : 3ft.; and North to South : 20 ft., bounded to the East : by Sri. Manjunatha Swamy Temple Trust Property; to the West : by Property of Smt. Muniyamma; to the North : by Private Property; and to the South : by Road; to Sri Manjunatha Swamy Temple Trust, represented by its President and Secretary. Further, this document also evidences that the President and Secretary of the donee Trust had accepted the Gift of the property made by the doner and the donee Trust has been put into actual possession of the gifted property on the day of its Gift.
13.05. The Plaintiff contends that the doner under the Gift Deed dated : 01.06.2015 - ExD3 = ExP14, is neither the owner nor in possession of the property, shown under the said Gift Deed and thus, he cannot transfer the same in favour of the 25 OS No.26494/2014 Defendant No.1, by showing it as the donee under the said Gift Deed.
13.06. Considering the boundaries of the schedule of the property under the Gift Deed dated :
01.06.2015 - ExD3 = ExP14, it can be said that, the said property is said to be located inbetween the property of the Plaintiff, shown as the Suit Schedule A Property, received by her, from Muniyamma [which falls towards the Western side of the schedule property under Gift Deed] and the property of the Defendant No.1, which is shown as the Suit Schedule B Property [which falls towards the Eastern side of the schedule property under Gift Deed].
Coming to the ocular evidence on this point, more specially,
a) cross examination of DW1, Page No.13, Para No.6, which reads as under :
"It is true to suggest that Schedule property shown under Ex.D3- Gift Deed dtd.01.06.2015, is located inbetween the property of the Plaintiff and the property received by our trust under Ex.D2."
As per this evidence, President of Defendant No.1 Trust / DW1, admits that Schedule of Property 26 OS No.26494/2014 shown under ExD3 - Gift Deed dated : 01.06.2015 is located inbetween the property of the Plaintiff and the property received by the Trust under ExD2.
b) cross examination of DW1, Page No.15, Para No.1, which reads as under :
"It is true to suggest that Schedule property shown under Ex.D3- Gift Deed is located towards the eastern side of the house of Muniyamma."
As per this evidence, President of Defendant No.1 Trust / DW1, admits that Schedule of property shown under ExD3 - Gift Deed dated : 01.06.2015 is located towards the Eastern side of the House of Muniyamma.
13.07. Initially, the Defendant No.1 has not pleaded about the existence of ExD3 in its Written Statement.
Coming to the ocular evidence on this point, more specifically, cross examination of DW1 at Page No.11, Para No.3, which reads as under :
"It is true to suggest that we have not pleaded about the existence of Ex.D3 Gift Deed dtd.01.06.2015, in out Written Statement. I do not know whether existence 27 OS No.26494/2014 of Ex.D4- Gift Deed dtd.01.06.2015, was pleaded by us in OS No.3245/2011, it is false to suggest that we have got created Ex.D3- Gift Deed dtd.01.06.2015, during pendency of this suit, so we have not pleaded either in the Written Statement filed in this suit or in the Written Statement filed in OS No.3245/2011."
As per this evidence, President of Defendant No.1 Trust / DW1, admits that they have not pleaded about the existence of ExD3 - Gift Deed dated :
01.06.2015 in their Written Statement and also pleads his ignorance as to whether they have pleaded about the existence of ExD4 - Gift Deed dated : 01.06.2015, in O.S.No. 3245/2011. Further, denies the suggestion made to him that ExD3 - Gift Deed dated : 01.06.2015 is got created during the pendency of this suit, so the same was neither pleaded in the Written Statement filed in this suit, nor in the Written Statement filed in O.S.No. 3245/2011.
13.08. The Defendant No.1 contends that the schedule of property shown under the Gift Deed dated: 01.06.2015 - ExD3, belongs to Mohan Babu.A.K., the doner under the said Gift Deed. On 28 OS No.26494/2014 considering the said contention coupled with the admitted location of the said property, under the Gift Deed dated : 01.06.2015 - ExD3, if the said property is shown to have been in existence, then the said property ought to have been shown in ExD2 - Gift Deed dated : 30.01.2004 [wherein, Defendant No.1 has acquired Suit Schedule B Property from M. Basheer Khan] towards its Westernside. But, as per ExD2 - Gift Deed dated : 30.01.2004, property of Muniyamma is shown towards the Western side of the schedule of property, under ExD2 and not the property which is shown as the schedule of property under Gift Deed dtd.01.06.2016. So, the existence of the schedule of property shown under ExD3 - Gift Deed dated : 01.06.2015, is in doubt.
13.09. Secondly, the Plaintiff denies the right, title and ownership of the doner under Ex.D3 Gift Deed dtd.01.06.2015, over the property shown as the schedule of property, under Gift Deed dtd.01.06.2015-Ex.D3.
Under such circumstances, it is for the Defendant No.1 to prove the said fact by leading some cogent evidence. But the Defendant No.1 has 29 OS No.26494/2014 neither produced any documentary evidence nor has led any ocular evidence to show that the doner under Ex.D3- Gift Deed dtd.01.06.2015, was the owner of the property shown as the schedule of property under the said Gift Deed.
13.10. Thirdly, the Defendant No.1 contends that, prior to registering the Gift Deed dtd.01.06.2015-Ex.D3, the owner/doner of the property shown as the schedule of property, under the said Gift Deed had executed an unregistered deed of gift infavour of the Defendant No.1 trust on 15.06.1999.
The Defendant No.1 has produced the copy of the said unregistered deed of gift dtd.15.06.1999, but the same was not marked, as the same is not in accordance with the provisions of Sec.123 of Transfer of Property Act and Sec.17 of the Indian Registration Act.
When the Defendant No.1 contends that, it had received the property measuring East to West:3 feet and North to South:20 feet from A. K Mohan Babu, then it would have proved the said fact by leading some documentary evidence, to show that, the said 30 OS No.26494/2014 unregistered deed of gift dttd.15.06.1999 has been acted over; or it would have led ocular evidence, more particularly of the person, who is set to have donated the said property to it, or of any other person, by virtue of which the said fact could have been proved, by the Defendant No.1.
13.11. The Defendant No.1 has neither proved
a) the existence of the property shown as the schedule of property under Ex.D3- Gift Deed dtd.01.06.2015;
b) the right of ownership of the doner under Ex.D3- Gift Deed dtd.01.06.2015, over the property shown as the schedule of property under the said gift;
c) the flow of title derived by the so-called owner/doner under Ex.D3- Gift Deed dtd.01.06.2015, over the property shown as the schedule of property under the said gift;
Under such circumstances, existence of the Gift Deed dtd.01.06.2015-Ex.D3=Ex.P14, is not in accordance with law, more particularly, in 31 OS No.26494/2014 accordance with the provisions of Sec.122 and 123 of Transfer of Property Act.
13.12. Thus, the Plaintiff has proved that, the registered Gift Deed dtd.01.06.2015 said to have been executed infavour of Defendant No.1 inrespect of an area measuring East to West:3 feet and North to South:20 feet, situated towards the eastern side of her property is created, sham and bogus.
Hence, I answer ADDL. ISSUE NO.3 IN THE AFFIRMATIVE.
13.13. On having answered Addl. Issue No.3 in the Affirmative, in the consequences, since the Plaintiff is not the party to the said document- Gift Deed dtd.01.06.2015-Ex.D3=Ex.P14, she will not be entitle for the relief of cancellation of the said registered Gift Deed, but since the said registered Gift Deed, may effect her rights over the Suit Schedule A-Property, within the measurements East to West:13 feet and North to South:20 feet, it left as it is necessary to declare that, the said Registered Gift Deed dtd.01.06.2015-Ex.D3=Ex.P14 will not be binding on her.
32 OS No.26494/2014Accordingly, ADDL. ISSUE NO.4 IS ANSWERED AS PARTLY IN THE AFFIRMATIVE.
14. ADDL. ISSUE NO.1:-
The Plaintiff contends that, an area measuring East to West:3 feet and North to South:20 feet abutting her property towards its eastern side is a public lane of which ownership lies with the BBMP.
The Defendant No.1, denies the said fact. The Plaintiff has to prove the existence of the same public lane, measuring East to West:3 feet and North to South:20 feet, to be situated towards eastern side of her property.
14.01. The Plaintiff has produced certified copy of the Gift Deed dtd.03.07.2009 at Ex.P9. As per the said Gift Deed, private property is shown towards eastern side of the schedule of property shown under it.
14.02. The Plaintiff contends that, her grandmother Muniyamma had purchased the property gifted to her, under the Registered Sale Deed dtd.16.09.1963. The Plaintiff has not produced 33 OS No.26494/2014 the said document, but the Defendant No.1 has produced the certified copy of the Registered Sale Deed dtd.16.09.1963 at Ex.D11. As per the said document, land of Doddathayappa is shown towards eastern side of the schedule of property shown under it.
14.03. The Plaintiff in the Suit Plaint, more specifically, while describing Suit Schedule A-
Property, has pleaded that towards it their exist drainage/ Defendant's property. Further the Plaintiff in her plaint has contended that, water line connection and drainage connection was given to her, from the said public lane; and she was using the said public lane, as she had a door entry opening towards it and the windows opening, towards it.
14.04. The Plaintiff has neither led any documentary evidence nor ocular evidence to show the existence of the public lane, having measurement of East to West:3 feet and North to South:20 feet, towards the eastern side of her property; opening of the door of her house, towards the said public lane; opening of the windows of her house towards the 34 OS No.26494/2014 said public lane; laying down of drinking water pipeline facility and the drainage pipeline facility to her house through the said public lane.
14.05. In the presence of Ex.P1 and Ex.D11 and in the absence of any cogent evidence, it is hard to believe the existence of the passage which is termed by the Plaintiff has public lane/drainage, having the measurement East to West:3 feet and North to South:20 feet.
Secondly, when the Plaintiff has failed to show the existence of the public lane with the measurements contended by her, consequently, the ownership of BBMP cannot be fixed on the unidentified and non-existing public lane.
Hence, I am constrained to answer ADDL. ISSUE NO.1 IN THE NEGATIVE.
15. ADDL. ISSUE NO.2:-
The Plaintiff contends that, the Defendant has constructed the building abutting her property, on the disputed area measuring 3 feet X 30 feet, in violation of KMC Act.
The Defendant No.1 has denied the same.35 OS No.26494/2014
While discussing Addl. Issue No.1, this Court has already come to a conclusion that, the Plaintiff has failed to prove the existence of a public lane measuring East to West:3 feet and North to South:20 feet, said to be situated towards the eastern side of the property of the Plaintiff.
16. Further the Plaintiff contends that, the Defendant No.1 has constructed a building in violation of KMC Act.
Percontra, the Defendant No.1 contends that, on obtaining necessary building construction sanction, it has constructed the building, in its area and not in the area, as contended by the Plaintiff.
17. The Defendant No.1 contends that, property received by it under Gift Deed dtd.31.01.2004-Ex.D2=Ex.P12 and the property received by it under Gift Deed dtd.01.06.2015- Ex.D3=Ex.P14, where got amalgamated by the BBMP authorities, as per its Order dtd.14.07.2015.
17.01. The Defendant No.1 has produced the Order passed by the Assistant Revenue Officer, 36 OS No.26494/2014 dtd.14.07.2015 at Ex.D10. As per this document, it is seen that, the Revenue Officer of the BBMP has amalgamated strip of land measuring 20 feet X 3 feet= 60 feet, with that of the property bearing No.240/2-2, situate Mothanapalya, Ward No.89, measuring 10 feet X 30 feet= 300 feet, on amalgamation of entire property measures 360 Sq.ft., 17.02. Coming to the ocular evidence, on this point, more specifically, cross examination of PW.1, at Page No.16, Para No.3, which reads as under:-
"It is false to suggest that BBMP authorities has amalgamated the earlier property measuring 300 Sq.ft., with the acquired property under Gift Deed dtd.15.06.1999 and registered Gift Deed dtd.01.06.2015, measuring 60 Sq.ft., totally measuring 360 Sq.ft., on 14.07.2015."
As per this evidence, Plaintiff/PW.1 denies the suggestion made to her that, the BBMP authorities have amalgamated the earlier property belonging to the Defendant No.1 measuring 300 Sq.ft., with the acquired property under Gift Deed dtd.05.06.1999 and registered Gift Deed dtd.01.06.2015, measuring 37 OS No.26494/2014 60 Sq.ft., totally ad-measuring 360 Sq.ft., on 14.07.2015.
17.03. The Defendant No.1 has also produced the khata extract of property bearing No.240/2-2 dtd.30.07.2015 at Ex.D7. As per this document, it is seen that, the name of the Defendant No.1 is shown in the owners column and sital area of the property bearing PID No.72-21-240/2-2 is shown as the 360 Sq.ft.,.
The Defendant No.1 has produced the khata certificate of the property bearing No.240/2-2 situate at Mothanapalya, Bengaluru dtd.30.07.2015 at Ex.D9. As per this document, the name of the Defendant No.1 is shown to be the khadethar of property bearing PID No.72-21-240/2-2.
17.04. But the Defendant No.1 has failed to show the existence of the property, measuring East to West:3 feet and North to South:20 feet and the ownership of the doner/owner under the Registered Gift Deed dtd.01.06.2015-Ex.D3, over the said property. (already this aspect is dealt with while discussing Addl. Issue Nos. 3 and 4).
38 OS No.26494/201418. Withregard to position of construction, undertaken by the Defendant No.1.
18.01. The Plaintiff has produced positive photographs at Ex.P19 to Ex.P25 and CD at Ex.P26.
Coming to the ocular evidence, on this point, more specifically, cross examination of DW.1, at Page No.14, Para Nos.2 and 4, which read as under:-
"Now I see the photographs marked as Ex.P19 and Ex.P20, wherein Ex.P19 photograph wall under construction is seen, the said wall is constructed by us and the property situated towards the right side (open space) belongs to us and the yelow colour building located on the left side of the wall, belongs to the Plaintiff.
Now I see the positive photograph Ex.P19, wherein yellow colour house belongs to Muniyamma. It is true to suggest that the roof of the house of Muniyamma is constructed by asbestors sheets. I do not know whether the rain water fallen on the roof, was falling in her property towards, the eastern side of her property."
As per this evidence, President of Defendant No.1 Trust/DW.1 contends that, wall under construction seen in Ex.P19-photographs is constructed by them and the property situated towards the right side (open space) belongs to them and the yellow colour building located on the left side 39 OS No.26494/2014 of the wall, belongs to the Plaintiff. Yellow colour house seen in Ex.P19 photograph belongs Muniyamma. Further he admits that, the roof of the house of Muniyamma is constructed by asbestors sheets, but pleads his ignorance the rain water falling on the roof of the said house was falling in her property towards the easternside of her property.
18.02. The Defendant No.1 has produced approved blue print sanctioned building plan at Ex.D5. As per this document, it is seen that, the BBMP authorities have sanctioned and accorded permission to construct a building to the Defendant No.1 in the property bearing Site No.240/2-2, situate at Mothappanapalya, Bengaluru, as per the Site plan. As per the said plan the Defendant has to construct a building by living setback of one meter each towards its northernside, southernside and westernside.
Coming to the ocular evidence, inrespect of Ex.D5, more specifically, cross examination of DW.1, at Page No.16, Para Nos.1 to 3, which read as under:-
40 OS No.26494/2014"It is true to suggest that as per Ex.D5 building construction plan is sanctioned to us, with a condition that, we have to leave setback of 1 meter = 3.37 feet on the western side, northern side and southern side of our property It is false to suggest that I have not left any setback as per the Sanction Plan- Ex.D5. Witness volunteers that he has left 1 feet space as setback towards the western side of his property.
Now I see Ex.P19 and Ex.P20 positive photographs, wherein we have constructed the wall, seen in Ex.P19, but no space of 1 feet is left, as stated by me supra, for having left the setback."
As per this evidence, the President of Defendant No.1 Trust/DW.1 has admitted that, BBMP authorities have sanctioned the building construction plan to them, as per Ex.D5, with a condition that, they have to leave setback of 1 meter = 3.37 feet, on the westernside, northernside and southernside of their property. Further he denies suggestion made to him that, they have not left any setback as per the sanction plan-Ex.D5. But further volunteers that they have left one feet space as setback towards the westernside of their property. On perusing Ex.P19 and Ex.P20 positive photographs, he contends that, they have constructed the wall, seen in Ex.P19 41 OS No.26494/2014 photographs, but no space of 1 feet is left as stated by him, as setback.
18.03. The Plaintiff has produced the copy of the Order passed by the BBMP authorities, U/Sec.321(1), 321(2), 321(3) at Ex.P17.
Coming to the ocular evidence, on this point, more specifically, cross examination of DW.1, at Page No.16, Para No.4 and at Page No.17, Para No.1, which read as under:-
"It is true to suggest that BBMP authorities have issued notice to me, contending that, there is 100% deviation in construction of the building by me as per the Approved Building Plan- Ex.D5. It is true to suggest that BBMP authorities have issued a notice by calculating the demolition charges to the tune of Rs.2,75,000/-."
It is true to suggest that till today, we have not got rectified our constructional work as per the approved sanction plan-Ex.D.5." As per this evidence, the President of Defendant No.1 Trust/DW.1 admits that, BBMP authorities have issued notice to them contending that, there is 100% deviation in construction of the building, as per the approved building construction plan-Ex.D5 and also admits that, the BBMP authorities have issued notice 42 OS No.26494/2014 to them by calculating the demolitions charges of Rs.2,75,000/-. Further he admits that, they have not got rectified their constructional work as per the approved sanctioned plan as per Ex.D5.
On the basis of the above documentary evidence-Ex.P17 and the above ocular evidence, it can be seen that, the BBMP authorities had issued provisional Order U/Sec.321(1) of KMC Act, calling upon the Defendant No.1 to show caused why the order should not be confirmed. Further the BBMP authorities have issued the confirmation order U/Sec.321(3) of the KMC Act, confirming the provisional order and has also given the estimated cost of demolition of the illegal construction takenup in violation of the building construction plan sanctioned by them as per Ex.D5.
19. The Karnataka Municipal Corporation Act, is itself a Self contained Code, which provides a remedy for any contravention of its provisions or the bye-laws made thereunder. It is for the appropriate authority constituted under the said Act to determine whether or not a licensee of a building has contravened the terms and conditions of license. And 43 OS No.26494/2014 when Section 321 of the KMC Act gives power to the Commissioner for demolition or alteration of buildings unlawfully commenced, carried or completed. Thus Act itself has provided for a machinery to inquire into such grievance and if the Commissioner doesnot decide to compound, then he may take such action as he deems fit and proper.
19.01. The Corporation of City of Bangalore has framed Building Bye-laws called City of Municipal Corporation Building Bye-laws of 1983. Bye-law 5.6.1 reads as follows:
"Whenever any construction is in violation/deviation of the sanctioned plan, the Commissioner may, if he considers that the violation/deviations are minor, viz., only when the deviations/violations is within 5% of (1) the minimum setback to be left around the building;
(2) the maximum plot coverage;
(3) permissible floor area ratio (FAR) and the maximum height of the building and that the demolition under Chapter XV of the Act is not feasible without affecting the structural stability, then he may regularize such violation/deviations by sanctioning of a modified plan with a levy of a suitable fee to be prescribed. The Commissioner shall come to such conclusion only after 44 OS No.26494/2014 recording detailed reasons for the same.
Violations/deviations under the provision shall not include the buildings which are constructed without obtaining any sanctioned plan, whatsoever and also the violations/deviations which are made inspite of the same being specifically deleted or rejected in the sanction plan."
These Bye-laws are framed under the powers given to the Corporation U/Sec 295 of the KMC Act 1976. Section 321 of the said Act gives power to the Commissioner for demolition or alteration of buildings unlawfully commenced, carried on or completed. Sec 321(1)(i)(b) empowers the Commissioner that, if he is satisfied that the construction or reconstruction of any building is being carried on or has been completed otherwise than in accordance with the plans or particulars of which such permission or order was based; or under sub-clause (c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any Rule or Bye-laws, made under this Act or of any direction or requisition lawfully given or made under this Act, he may make a Provisional Order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been 45 OS No.26494/2014 unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, Rules, Bye-laws, directions or requisitions as aforesaid, or with the plan or particulars on which such permission or order was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building.
Under Sub-section (2) a copy of the provisional order made under sub-section (1) is required to be served on the owner or builder of the building.
19.02. In the present case, the Plaintiff has produced the complaint filed by her before the Police Authorities at Ex.P10 and Ex.P11.
20. Thus, I am of the firm opinion that, when a Statute or Bye-law gives discretionary powers/Powers to a Competent Authority, that authority has to exercise that Power Judiciously and the Court cannot compel any authority who had been conferred with the powers to exercise it, in any particular way. The Karnataka Municipal Corporation Act- the Statute and Byelaws confer 46 OS No.26494/2014 such powers on the Defendant No.2. And therefore, no Injunction much the less of the nature of Mandatory can be granted infavour of the Plaintiff, against the Defendant No.2.
21. If the Plaintiff has any grievance with regard to violation of the building bye-laws, etc., then she has to appear before the Commissioner and putforth her grievance, against such use of the Powers, in any way, known to law.
Accordingly, I answer ADDL. ISSUE NO.2 PARTLY IN THE AFFIRMATIVE.
22. ADDL. ISSUE NO.5:-
The Defendant No.1 in its additional Written Statement has contended that, the relief of Mandatory Injunction claimed by the Plaintiff, by getting amended her Suit Plaint, is barred by law of limitation.22.01. The Plaintiff in para Nos.10 and 11
of the Suit Plaint contends that, the Defendant No.1 has broken ACC roof sheets, damage the wall of her 47 OS No.26494/2014 house and is constructing the building on the Suit Schedule Property, by abutting the wall of her house.
The Plaintiff has produced the copy of the order passed by the BBMP authorities U/Sec.321(1), 321(2) and 321(3) at Ex.P17. The said orders are passed on 20.12.2016, 20.12.2016 and 31.12.2016, respectively.
22.02. The Defendant No.1 has neither produced any documentary evidence nor has led any ocular evidence to show as to how the relief claimed by the Plaintiff is barred by law of limitation.
22.03. Considering the material on record, more specifically, the pleadings of the Plaintiff at Para Nos.10 and 11 of the Suit Plaint; the documentary evidence produced by the Plaintiff by at Ex.P17, I am of the considered opinion that, the relief of Mandatory Injunction claimed by the Plaintiff will not be hit by the provisions of Limitation Act.
Accordingly, I answer ADDL. ISSUE NO.5 IN THE NEGATIVE.
48 OS No.26494/201423. ADDL. ISSUE NO.6:-
The Plaintiff on getting amended her Suit Plaint and by incorporating the pleadings at Para Nos.11(a) and (b) of the Suit Plaint has sought for the relief of Cancellation of the registered Gift Deed dtd.01.06.2015.
23.01. On perusal of the registered Gift Deed dtd.01.06.2015-Ex.D3=Ex.P14, it is seen that, the Plaintiff is not the party to the said document. As already discussed, while discussing Addl. Issue Nos.3 and 4, this Court has held that, when the Plaintiff is not the party to the instrument, the Gift Deed dtd.01.06.2015-Ex.D3, in this case, then it is not necessary for the Plaintiff to seek the relief of either cancellation of the said Gift Deed; or to claim the relief of Declaration to declare the said Gift Deed as null and void. But the Plaintiff on showing the proof of injury, due to existence of the instrument-
Gift Deed dtd.01.06.2015-Ex.D3, can seek the relief of Declaration to declare the said Gift Deed, as not binding on her. Such relief can be sought for by the Plaintiff by paying the Court fee U/Sec.24(d) of the Karnataka Court Fees and Suit Valuation Act.
49 OS No.26494/201423.02. On perusal of the valuation slip filed by the Plaintiff alongwith the Suit Plaint, wherein it is seen that, the Plaintiff has paid the Court fee of Rs.100/-. Looking to the nature of relief sought for and the relief granted by this Court under Addl. Issue No.4, the Court Fee paid by the Plaintiff, is sufficient and proper.
Hence, I answer ADDL. ISSUE NO.6 IN THE AFFIRMATIVE.
24. ISSUE NO 2:
On the basis of the admissions given by the Defendant No 1 in his cross examination, referred to supra, under Issue No. 2, which suggest the acts and intention of the Defendant No. 1 of violating the building construction permission and byelaws prescribed under the KMC Act.
This aspect shows that Plaintiff has apprehension coupled with acts of the Defendant No. 1, amounting to attempts of trespass made by it. Thus apprehension of injury or belief on the part of the Plaintiff, coupled with the acts and intention of the Defendant No 1, to do certain acts, which harms 50 OS No.26494/2014 the Plaintiff, amounts to interference by the Defendant No 1.
Since the act apprehended by the Plaintiff and intended by the Defendant No 1, is such that, if completed, give a ground for action. There is a foundation for the exercise of jurisdiction. Thus, it amounts to interference.
Hence, I am of the firm opinion that Plaintiff has proved that, the prospect or apprehension and belief coupled with intention of the Defendant No 1 exhibited, if completed, will give rise to a cause of inflicting injury or receiving injury, to the Plaintiff. I find support to my above view, as per the decision of the Hon'ble High Court of Karnataka reported in ILR 1978 Page 1560; in the case of Gopal M Hegde & Ors Vs U F M Narasimha Ganap Bhat & Ors, wherein it is held that, "When the Plaintiff proves the intention on the part of the defendants, to do an act or existence of the act, which in the opinion of the Court, if completed, give ground of action, there is foundation for the exercise of jurisdiction". For the above said reasons, I answer ISSUE NO. 2 IN THE AFFIRMATIVE.51 OS No.26494/2014
25. ISSUE NO 3:
Though the Plaintiff contends that she is the owner in possession of Suit Schedule A Property, which she has given the measurements as East to West : 18 ft; and North to South : 20 ft., but as per the oral and documentary evidence available on record, this Court while discussing Issue No.1 has held that "the Plaintiff is the owner in possession and enjoyment of the property shown as the Suit Schedule A Property, but with the measurements East to West : 13 ft; and North to South : 20 ft., and not with the measurements as mentioned by her, in the schedule."
25.01. As per the decision of the Hon'ble High Court of Karnataka in the case of Mathew Phillips Vs P. O Koshy, reported in AIR 1966 Mys 74, wherein it is observed in Para No 4 as under:
"The party, seeking the aid of the Court for an injunction must show that the act complained of is in violation of his right or is at least an act which, if carried into effect, will necessarily result in a violation of the right.52 OS No.26494/2014
25.02. When the Plaintiff has shown that she is in possession of the property measuring East to West : 13ft; and North to South: 20 ft., and when she has shown the interference by the Defendant No.1 in her possession over the property, then she will be entitled for the relief of Permanent Injunction, in respect of the Suit Schedule A Property, with the measurements East to West : 13 ft.; and North to South 20 ft.
Hence, I answer ISSUE NO.3 PARTLY IN THE AFFIRMATIVE.
26. ADDL. ISSUE NO.7 :
The Learned Counsel for the Plaintiff would contend that since there is deviation and violation of construction plan by the Defendant No.1, so it is required to be directed to remove the illegal encroachments being put up by it in the Suit Schedule B Property and to bring the construction in accordance with the sanctioned plan by leaving necessary setbacks on the Eastern side of the Suit Schedule A Property i.e., on the Western side of the Suit Schedule B Property, in the form of Mandatory Injunction.53 OS No.26494/2014
So also to issue directions to the Defendant No. 2 directing it to take necessary action against the Defendant No 1 and to remove/demolish all the deviations done by the Defendant No 1 in the Suit Schedule B Property, in accordance with the sanctioned plan, in the form of mandatory Injunction.
27. The Plaintiff has shown that the Defendant No.2 has issued the orders under Sec. 321 of the KMC Act, to the Defendant No.1, in respect of violation of the approved building sanction plan- ExD5. Then the remedy for the Plaintiff lies under the provisions of the said Act. So, the Plaintiff will not be entitled for the relief of Mandatory Injunction, as claimed by her, as against the Defendant No. 2.
Hence, I am constrained to answer ISSUE NO.7 PARTLY IN THE AFFIRMATIVE.
28. ISSUE NO 4 and 8:
For having answered Issue Nos. 1, Issue No.3, Addl. Issue No.2 and Addl. Issue No.4, Partly in the Affirmative; Issue No.2, Addl. Issue No.3, Addl. Issue No.6 and Addl. Issue No.7 in the Affirmative; and 54 OS No.26494/2014 Addl. Issue No.1, Addl. Issue No.5 in the Negative, I proceed to pass the following:
ORDER Suit of the Plaintiff is hereby Decreed, inpart.
The Defendant No 1, or anybody acting on its behalf or claiming under it, are hereby restrained by an order of Permanent Injunction, from causing interference/obstructions to the Plaintiff in her possession and enjoyment of the Suit Schedule A Property, measuring East to West: 13 ft.; and North to South: 20 ft.
Further the Mandatory Injunction claimed by the Plaintiff is hereby Rejected.
It is needless to mention that the Plaintiff can approach the Competent Authorities prescribed under the Karnataka Municipal Corporation Act, 1976 for her redressal, withregard to violation of building bye-laws by the Defendant No 1, pertaining to leaving of setback by the Defendant 55 OS No.26494/2014 No 1. And in such an event, it is believed that the said authorities will perform their statutory duties, as prescribed under the law.
Looking to the special facts of the case, the Defendant No 1 shall bear all the costs.
Draw Decree Accordingly.
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(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 11th day of August, 2021.) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 56 OS No.26494/2014 :Schedule 'A' Property:
All that piece and parcel of the Immovable Property bearing residential property bearing No.241, PID No.72-21-241, New PID No.089- W0069-29 situated at Motappanapalya, 2nd Stage Indiranagar, Bangalore-560 038, measuring East to West 18 feet and North to South 20 feet in all measuring 360 Sq.ft., bounded on the East by Drainage/ Defendants property, West by Temple, North by Private property and South by Road.
:Schedule 'B' Property:
All that piece and parcel of site bearing No.7 and 8, New No.240/2-2 situated at 2nd Stage Indiranagar, Bangalore-560 038, measuring East to West 10 feet and North to South 30 feet in all measuring 300 Sq.ft., bounded on the East by portion of property No.240/2, West by Drainage property belongs to the Plaintiff, North by portion of property No.240/2 and South by Road.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 57 OS No.26494/2014 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Smt. Vijayalakshmi Singh. PW.2: Lakshman.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF: Ex.P1: Certified copy of the Gift Deed dtd.03.07.2009. Ex.P2: Khata certificate dtd.10.11.2017. Ex.P3: Khata extract dtd.10.11.2017. Ex.P4 to Ex.P9: 6 property tax receipts for the years 2013-13, 2013-14, 2014-15, 2015-16, 2016-17 and 2017-18, respectively.
Ex.P10: Letter in the form of Complaint dtd.17.10.2014 issued to the AEE, Bruhat Bengaluru Mahanagara Palike Dpmmaluru Range, Bengaluru. Ex.P11: Letter in the form of Complaint dtd.18.10.2014. Ex.P12: Certified copy of the Gift Deed dtd.30.01.2004. Ex.P13: Reply to the application filed under RTI dtd.06.09.2016.
Ex.P14: Certified copy of the registered Gift Deed dtd.01.06.2015.
Ex.P15: Extract from the property register- Form No."B"
received under RTI Act.
Ex.P16: Copy of application form made under RTI Act. Ex.P17: Documents received under RTI Act. Ex.P18: Certified copy of the charge sheet in CC No.54302/2016.
Ex.P19 to Ex.P26: 7 positive photographs alongwith CD.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: T. Jagadish.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D1: Resolution dtd.20.01.2019. Ex.D2: Registered Gift Deed dtd.30.01.2004. Ex.D3: Registered Gift Deed dtd.01.06.2015. Ex.D4: Certified copy of the Judgment passed in OS 58 OS No.26494/2014 No.3245/2011.
Ex.D5: Approved blue print sketch. Ex.D6 to Ex.D8: 3 khatha extract. Ex.D9: Khatha certificate.
Ex.D10: Notice issued by the BBMP dtd.14.07.2015. Ex.D11: Certified copy of the Registered Sale-deed dtd.17.09.1963.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)