Bangalore District Court
Sri M.L. Rajanna vs The Commissioner on 16 December, 2021
KABC010049832013
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BENGALURU CITY. (CCH30)
Dated this the 16th day of December 2021
PRESENT: SRI. R. RAVI, B.Sc., LL.B.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BENGALURU.
O.S.No. 7837/2013
Plaintiffs : 1. Sri M.L. Rajanna,
S/o Late Lakkanna,
Aged about 56 years,
R/a No.175, 10th Main,
(Opp. Srinagar Bus Stand)
Srinagar,
Bengaluru - 560 050.
2. Sri K.P. Ramachandra,
S/o Late Chinnappa Naidu,
Aged about 68 years,
R/a No.178, 9th Main,
Srinagar,
Bengaluru - 560 050.
3. Sri L. Jayakumar,
S/o Late Lingachar,
Aged about 65 years,
R/a No.224, 9th Main,
Srinagar,
Bengaluru - 560 050.
4. Sri K. Srinivas Shastry,
S/o Late Krishnappa,
Aged about 82 years,
R/a No.180, 9th Main,
Srinagar,
Bengaluru - 560 050.
(By Sri K.G. Sudhakar, Advocate
for plaintiffs)
2
O.S.No.7837/2013
Vs.
Defendants : 1. The Commissioner,
Commissioner's Office,
Bengaluru Development
Authority,
T. Chowdaiah Road,
Bengaluru - 560 020.
2. Venkataramanaswamy Temple
Trust,
Represented by it's Secretary,
Sri C.M. Narasimha Murthy,
Since deceased by LR
Sri D.N. Praveen,
Secretary,
Sri Venkataramana Swamy
Devasam Trust (Regd),
No.182, 9th Main Road,
Srinagar,
Bengaluru - 560 050.
3. Smt A.N. Girijamma,
W/o Late T.A. Narayan,
Aged about 77 years,
R/a No.214/A, 9th Main,
Sri Venkataramanaswamy
Temple Street,
Srinagar,
Bengaluru - 560 050.
4. Sri Jayaram,
S/o Kempanna,
Aged about 55 years,
R/a No.2111, 9th Main,
Srinagar,
Bengaluru - 560 050.
5. Sri B. Krishnamurthy,
S/o Basavaiah,
Aged about 50 years,
R/a No.194, 5th Cross,
3
O.S.No.7837/2013
Kumara Rama Road,
Lakshmipuram,
Hanumanthanagar,
Bengaluru - 560 019.
6. Sri S. Chandrashekar,
S/o Shivalingaiah,
Aged about 51 years,
R/a No.127/131, D'Souza Nagar,
Hosakerehalli,
Bengaluru - 560 050.
7. Sri Venkatesh,
S/o Hucchaiah,
Aged about 47 years,
R/a No.920, 7th Main,
Srinagar,
Bengaluru - 560 050.
(By Smt N. Sudha, Advocate for
defendant No.1)
(By Sri S. Manju Anand, Advocate
for defendant No.2)
(By Sri Eshwar M. Gollalli, Advocate
for defendants No.3 to 7)
(By Sri R.A. Dev Anand, Advocate
for LR of defendant No.2)
Date of institution of the suit 26/10/2013
Nature of the suit (suit on
pronote. Suit for declaration and Declaration &
possession suit for injunction, Permanent Injunction
etc.)
Date of the commencement of
recording of the evidence. 23/02/2015
Date on which the judgment
16/12/2021
was pronounced
Total duration Year/s Month/s Day/s
08 01 20
4
O.S.No.7837/2013
JUDGMENT
This suit is filed by the plaintiffs for declaring that the defendant No.2 is in illegal and unlawful possession of the schedule property and to direct the defendant No.1 to take possession of the schedule property and to direct the defendant No.2 to give vacant possession of the schedule property to the defendant No.1 and for costs and such other reliefs.
2. The case of the plaintiffs is that they have right to file a suit under Section 91 of CPC against the defendants for the purpose of enforcement of statutory or legal rights or when there is a breach of statutory duty on the part of the defendants. The schedule property is belonging to the defendant No.1 and the defendant No.1 is absolute owner of the schedule property. The Karnataka Information Commission dated 04.06.2009 in it's letter discloses that the defendant No.2 is in possession of the schedule property and Temple is in existence. The schedule property is not allotted to defendant No.2 by the defendant No.1. The schedule property is reserved for the residential purpose by the defendant No.1. But it is used for nonresidential purpose by the defendant No.2 and the same is once again confirmed by the defendant No.1 in it's endorsement dated 30.05.2009 and letter No.T.506/20112012 dated 23.12.2011. The 5 O.S.No.7837/2013 defendant No.2 is in illegal and unlawful possession of the schedule property. The wrongful act of the defendant No.2 is also affecting the general public at large. The plaintiffs are claiming their right in representative capacity and residents of surrounding area of the schedule property. There is gross violation of statutory rules and regulations by the defendant No.2. Subsequently the defendant No.1 is also in gross violation of statutory rules and regulations is not at all taking any legal action in accordance with law against the defendant No.2 who is in wrongful possession of the schedule property. The defendant No.1 shall take possession of the schedule property within the purview of Bengaluru Development Authority Act. The defendant No.2 who is in illegal and unlawful possession of the schedule property shall give vacant possession of the schedule property to defendant No.1, but defendant No.2 failed to do so. Hence this suit is filed.
3. On the other hand the defendant No.1 has filed his written statement and denied the averments of the plaint that the plaintiffs are having right to file a suit under Section 91 of CPC against the defendants for the purpose of enforcement of statutory or legal right. The further averments of the plaint that the Karnataka Information Commission dated 04.06.2009 in it's letter discloses that the 6 O.S.No.7837/2013 defendant No.2 is in possession of the schedule property and temple is in existence is not within the knowledge of this defendant No.1. As per the BDA Layout plan (Southern side of Mount Joy Layout) the suit schedule property to an extent of 6488.19 sq. ft. is not earmarked or any land use and as per RMP2015 dated 25.06.2007 the suit schedule is earmarked for public/semipublic use and the land in question there is already a temple exists for the last 60 years and that apart the same is meant for public/semipublic use and as such the same comes under CA use and therefore based on the then order of the Commissioner vide No.8349 dated 01.12.2011 the Town Planning Department has taken action to constitute the said area as a CA site in the BDA Layout Plan. Since 60 years the Venkateshwara Temple is in existence then vide orders passed in resolution by Committee set by the BDA on 05.12.2013 vide No.59/2013, it is recommended for the temple activities to continue for 30 years on lease. Even though the BDA in it's resolution passed to continue the temple for 30 years, the file has been sent to the Government for it's due approval and accordingly prayed for dismissal of the plaintiffs' suit with exemplary costs.
4. Whereas the defendant No.2 has filed his written statement that the defendant No.2 is a public trust called as Venkataramana 7 O.S.No.7837/2013 Swamy Temple Trust, registered with the Authority concern on 14.03.1980 and the said Trust was established to promote various Hindu religious activities and the said Trust is governed by a committee called as trustees for the purpose of administration. The said Trust vests in the hands of 13 Trustees. On 22.04.1964 the defendant No.1 issued a final notification acquiring Sy.No.36/11, 36/2 & 37/1 of different extent situated in Gavipura Village, Sunkenahalli Village and Gerehalli Village for the purpose of formation of residential extent called as "BSK 1 st Stage 2nd Block". In pursuance of said notification after acquisition of aforesaid survey numbers by defendant No.1 residential layout was formed of different dimension of site for allotment to the needy. In the said notification the Northern portion of Site No.181 measuring East to West :
13.7+17.68/2 meters and North to South : 38.40 meters consisting of temple and other religious structure which were in existence on the date of final notification were left out of acquisition and hence it was not subjectmatter of acquisition by the defendant No.1. This is clearly evidenced in the final notification Gazette on 22.04.1964. For extending the religious activities of the temple as some more space was required one Smt Parvathamma D/o Sri Narahari Shastri to whom site No.181 was allotted by defendant No.1 sold the same in 8 O.S.No.7837/2013 favour of defendant No.2 Trust on 30.03.1998 through a registered document of sale and accordingly Khatha of the site No.181 thus, came to be mutated in favour of defendant No.2 Trust. In the site bearing No.182 (schedule property) by the defendant No.2 Trust made use of the same for the purpose of Rajagopura, Navagraha, Ganesha Temple & Vykunta Dhwara, Office Room & Nagarakatte and whereas in the site bearing No.181, construction is taken up of a building for the purpose of kitchen for preparation of laddus and other items of prasada and also incidentally it is being made use of, to conduct other religious activities connected to the temple. The said construction has no division inside and it is just a big room construction. And Secretary of defendant No.2 Trust through the representations dated 12.07.1989, 20.09.2009, 27.11.2011, 03.05.2012 & 29.11.2012 represented to defendant No.1 for allotment of schedule property (site No.182) which is not covered under the final notification by way of lease. At the time of formation of layout by defendant No.1 the schedule property site bearing No.182 had been developed by raising construction of a temple and considering this fact, the defendant No.1 by it's order in Ref.No.8349 dated 01.12.2011 incorporated the temple in the said property and as well depicted in the layout plan of the BDA. Further the construction 9 O.S.No.7837/2013 of temple and it's administration by the Trust was incorporated as CSI site as per the order of defendant No.1 in Ref.No.8349 dated 01.12.2011 (File No.PM/Misc.2403/201112), a truncated copy of the layout plan as mapped by the defendant No.1 a reference is made thereto. Considering the request for grant of lease for 30 years at the instance of defendant No.2 Trust, defendant No.1 in it's Board Meeting held on 05.12.2013 discussed as one of it's agenda and the same after accepting and conceding the request of the defendant No.2 for it's approval, it was sent to Secretary of Department of Urban Development to the State and in it's meeting dated 05.02.2013. And the defendant No.2 Trust filed a writ petition in W.P.No.23233/2017 on 30.05.2017 seeking a writ in the nature of mandamus against the State representing through Department of Urban Development for approval of the resolution of defendant No.1 the subject in 59/2013 for grant of lease during the hearing of said writ petition, the counsel representing the defendant No.1 brought to the attention of writ court about the official communication which it had received from the Department of Urban Development for nonacceptance of recommendation made by defendant No.1 under the provision of BDA Act. Consequently the defendant No.2 Trust had to file a writ petition in W.P.No.29502/2017 questioning the nonacceptance of 10 O.S.No.7837/2013 recommendation of defendant No.1 on various legal and tenable grounds. In the said writ petition on 07.07.2017, the writ court directed the advocate appearing for BDA to take notice by issuing emergent notice and the said writ petition is subjudice. In view of foregoing facts not only on the ground on question of law but also on facts, the present suit is filed by the plaintiffs lacks merit to consider and to grant the decree as prayed for and hence same is liable to be dismissed.
5. Considering the facts and circumstances and the material available in the matter, my Learned Predecessorinoffice has framed the following issues on 12.04.2021 and they are as hereunder: ISSUES (1) Whether the plaintiff proves that schedule property is not allotted to 2nd defendant by 1st defendant?
(2) Whether the plaintiff proves that defendant No.2 uses schedule property for nonresidential purpose, whereas the property is allotted for residential purpose?
(3) Whether the plaintiff proves that 2 nd defendant is in unlawful possession of suit schedule property?
(4) Whether the plaintiff proves that the 1 st defendant also violated the statutory rules and regulations by not taking legal action against 2nd defendant?
11
O.S.No.7837/2013 (5) Whether the plaintiff proves that 2 nd defendant is entitled to be evicted from the schedule property?
(6) Whether the defendants prove that suit is not maintainable under Section 91 of CPC and plaintiff has not complied the requirement of Section 64 of the BDA Act?
(7) Whether the plaintiff is entitled for the relief sought in the plaint?
(8) What order or decree?
6. In order to prove their case, the plaintiff No.4 got himself examined as PW.1 and got marked the documents at Exs.P.1 to P.8. The plaintiffs No.3, 2 & 1 were also examined as PWs.2 to 4 respectively. On behalf of the defendant No.2, the Secretary of the defendant No.2 was also got examined himself as DW.1 and got marked the documents at Exs.D.1 to D.10 and thereafter the matter was posted for arguments.
7. And I have heard the arguments of the learned counsel for the plaintiffs & so also the learned counsel for the defendants and perused the materials placed on record by both the parties.
8. And my findings on the above said issues are as hereunder: Issue No.1 : Negative.
Issue No.2 : Negative.
Issue No.3 : Negative.
12
O.S.No.7837/2013 Issue No.4 : Negative.
Issue No.5 : Negative.
Issue No.6 : Partly affirmative for Section 91 of CPC & Partly negative for Section 64 of the BDA Act.
Issue No.7 : Negative.
Issue No.8 : As per final order for the following: REASONS
9. Issue No.1 to 7: Since these points are interrelated, then they are hereby discussed together to arrive at a conclusion.
10. In order to prove the facts of the above issues, though the plaintiff No.4 got himself examined as PW.1 and got marked the documents at Exs.P.1 to P.8 & further examined the plaintiffs No.3, 2 & 1 as PWs.2 to 4 respectively, the same do not hold any water as there is a lot of variance in the pleadings and proof of the plaintiffs that are placed on record. Now let me examine it.
11. First of all though the plaintiffs have specifically pleaded that the suit schedule property is reserved for residential purpose by the defendant No.1, but the defendant No.2 is using the same for nonresidential purpose and as such the defendant No.2 is in illegal and unlawful possession of the suit schedule property and the defendant No.1 is not at all taking any legal action against the wrongful act of the defendant No.2 & the same has caused public 13 O.S.No.7837/2013 nuisance, the same once again do not hold any water as the above facts are not at all proved by the plaintiffs with cogent material evidence.
12. And in fact on careful perusal of the plaint pleadings one can make out that except invoking Section 91 of CPC the plaintiffs have not at all specifically pleaded what are all the public nuisances and wrongful acts of the defendants which is affecting the public & so also the plaintiffs as defined under said Section 91 of CPC.
13. For better appreciation the ingredients of Section 91 of CPC is hereby reiterated as below: Section 91 of CPC. Public nuisances and other wrongful acts affecting the public: (1) In the case of public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,
(a) by the AdvocateGeneral or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act. 14
O.S.No.7837/2013 (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
14. And since the said 'Public nuisance' has not been categorically defined in the Code of Civil Procedure, 1908 then for the purpose of adjudication of the said cause, the definition has been borrowed from Section 268 of the Indian Penal Code, 1860. According to Section 268 of IPC a person is guilty of public nuisance who does any act or guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general would well or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have vocation to use any public right.
15. And since the plaintiffs have neither pleaded in their plaint that the alleged possession of the defendant No.2 over the suit schedule property is causing any common injury, danger or annoyance to the general public or to themselves & since the definition of nuisance excludes from it's ambit the instances of legalized nuisance i.e., the running of railway engines and trains or establishment of the yard, despite being a legitimate cause of nuisance, is not punishable under IPC & since in the case of 15 O.S.No.7837/2013 "Vasanth Manga Nikumba & others Vs. Babu Rao Bhikkanna Naidu (Deceased) by Lrs & another" the Hon'ble Supreme Court of India by it's Judgment dated 11.02.1994 has clearly held that "Nuisance is an inconvenience materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. As defined in Section 268 of IPC, public nuisance is an offence against public either by doing a thing which tends to the annoyance of the whole community in general or by neglect to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in geneal would well or occupy the property in the vicinity. On the alternate it causes injury, obstruction, danger or annoyance to persons who may have vocation to use public right. It is the quantum of annoyance or discomfort in contra distinction to private nuisance which affects an individual is the deceive factor" then it has to be held in unequivocal terms that the plaintiffs have not at all made out any valid grounds for invoking Section 91 of CPC.
16
O.S.No.7837/2013
16. Even though the plaintiffs have led the oral evidence of PWs.1 to 4 & also got marked the documentary evidence at Exs.P.1 to P.8 to prove that the defendant No.2 is in illegal and unlawful possession of the suit schedule property and the defendant No.1 is not at all taking any legal action against the wrongful act of the defendant No.2 & the same has caused public nuisance, the same are of no help to the case of the plaintiffs as contrary to the above said oral and documentary evidence, the defendant No.1 being the admitted owner of the suit schedule property at para8 & 9 of their written statement have clearly pleaded & admitted that "The suit schedule property to an extent of 6488.19 sq. ft. is not earmarked or any land use and as per RMP2015 dated 25.06.2007 the suit schedule is earmarked for public/semi public use and the land in question there is already a temple exists for the last 60 years and that apart the same is meant for public/semipublic use and as such the same comes under CA use and therefore based on the then order of the Commissioner vide No.8349 dated 01.12.2011 the Town Planning Department has taken action to constitute the said area as a CA site in the BDA Layout Plan. Since 60 years the Venkateshwara Temple is 17 O.S.No.7837/2013 in existence vide orders passed in resolution by Committee set by the BDA on 05.12.2013 vide No.59/2013, wherein it is recommended for the temple activities to continue for 30 years on lease. Even though the BDA in it's resolution passed to continue the temple for 30 years, the file has been sent to the Government for it's due approval".
17. And since the defendant No.1 himself is clearly admitting the existence of the Sri Venkateshwara Temple in the suit schedule property for the last 60 - 65 years and since the defendant No.1 has further admitted that "By it's resolution dated 05.02.2013 vide No.59/2013 it has recommended for lease of the suit schedule property in favour of defendant No.2 for 30 years and the said resolution has been sent to the Government for it's due approval" & since the plaintiffs themselves at para4 of their plaint have clearly pleaded & admitted that "The defendant No.2 is in possession of the schedule property & the Temple is in existence" and since the plaintiff No.4/PW.1 himself at page9 of his crossexamination has clearly admitted that "From the year 1980 to 1985 he was the Trustee of defendant No.2's Temple" & since the above material admission of PW.1 clearly shows that the said plaintiff No.4 being a 18 O.S.No.7837/2013 Trustee of defendant No.2's Temple was also in possession of the suit schedule property then how can the plaintiffs allegedly contend that the defendant No.2 is an illegal and unlawful possession of the suit schedule property.
18. And moreover since the said plaintiff No.4/PW.1 contrary to his pleadings and evidence at page10 of his crossexamination has allegedly deposed that "The above Temple is situated towards his property & since the Temple Authorities have encroached BDA property & so also his property by constructing a compound wall & also threatened to take his life then he has filed the present suit" & since the plaintiff's witnesses i.e., PWs.2 to 4 have also at page8 of their crossexamination has allegedly deposed that "Since there are financial irregularities in the defendant No.2's Trust then they along with plaintiff No.1/PW.1 have filed this suit" & since the above material admissions do not find place in the plaint pleadings & also does not attract the contents of Section 91 of CPC & since the said alleged admissions of PWs.1 to 4 are rather allegedly attracts Section 92 of CPC & since as per Section 34 of the Indian Trust Act, 1882 before instituting suit the plaintiffs have not at all filed any petition to the Principal Civil Court of original jurisdiction for it's opinion, advise or direction on any present questions respecting the management or 19 O.S.No.7837/2013 administration of Trust property then it has to be held in unequivocal terms that the present suit of the plaintiffs one filed under Section 91 of CPC is not at all maintainable in law and as such the plaintiffs are not all entitled any reliefs as sought by them.
19. And even otherwise since the plaintiffs have neither produced any cogent material evidence to prove their pleadings with regard to the alleged public nuisance of defendant No.2 nor even placed any other cogent material evidence to show that they have suffered any special damages by the defendant No.2 & since the plaintiff No.4/PW.1 at page10 & 11 of his crossexamination has clearly admitted that "He has not at all taken any legal action with regard to the encroachment of his compound and threatening his life"
& since the said PWs.2 to 4 in their crossexamination has clearly admitted that "They are neither the members of defendant No.2 Trustee nor even the members of the administrative committee of defendant No.2's Temple and they have also not at all given any complaint against the defendant No.2 with regard to the alleged financial irregularity before the Registrar of Society and the concerned police station" then it has to be held in unequivocal terms that the suit of the plaintiffs is neither maintainable under Section 91 of CPC nor maintainable under Section 92 of CPC.20
O.S.No.7837/2013
20. And as regards the contention of the defendant No.1 that the suit of the plaintiffs is bad for nonissuance of statutory notice under Section 64 of the BDA Act, 1976 is concerned, the same do not hold any water because before filing of the suit as per Exs.P.1 to P.3 the plaintiffs have duly issued the statutory notice to the defendant No.1/BDA as per Section 64 of the BDA Act, 1976.
21. On the other hand the defendant No.2 by clear pleading and leading the oral evidence of the Secretary of defendant No.2 at DW.1 and further producing the documentary evidence at Exs.D.1 to D.10 have clearly rebutted the case of the plaintiffs and further proved that the defendant No.2 is a public trust called as "Venkataramana Swamy Temple Trust" and in the suit schedule property Sri Venkataramana Swamy Temple was in existence for the last 60 years and the temple is built in such a way covering the entire suit schedule site bearing No.182 and by a notification dated 22.04.1964 different extent of lands in Sy.No.36/11, 36/2 & 37/1 of Gavipura village, Sunkenahalli village and Gerahalli village was acquired for formation of Banashankari 1 st Stage 2nd Block and in the said notification Northern portion of site No.181, measuring East to West : 13.7 + 17.68/2 meters and North to South : 38.40 meters consisting of the said temple and other structures were left out of the 21 O.S.No.7837/2013 acquisition and on formation of the said layout, the site No.181 was reconveyed to one Smt. Parvathamma and since some more place was required for temple activities then on the request of the defendant No.2 the said Parvathamma in turn sold the same in favour of defendant No.2 Trust and the defendant No.2 have made use of the same for the purpose of Rajagopura, Navagraha Temple, Ganesha Temple & Vykunta Dhwara, Office Room & Nagarakatte & also construction is taken up for a building for the purpose of kitchen and in the meanwhile the Secretary of the defendant No.2 has made representation to the defendant No.1/BDA on 12.07.1983 for allotment of the said suit schedule property and the defendant No.1 by it's resolution dated 05.02.2013 under subject No.59/2013 resolved to lease deed the said suit schedule property in favour of defendant No.2 Trust for a period of 30 years and the said resolution was forwarded to the Government for approval, but the Government by it's communication dated 09.03.2014 rejected the above proposal and hence the defendant No.2 preferred a W.P.No.29502/2017 (BDA) before the Hon'ble High Court of Karnataka as per Ex.D.2 and the Hon'ble High Court of Karnataka by it's order dated 21.10.2021 has quashed the above said endorsement and letter dated 09.03.2014 and directed the defendant No.1/BDA to forward it's earlier 22 O.S.No.7837/2013 resolution dated 05.02.2013 to the Government within four weeks and also directed the Government to consider the above resolution/proposal of defendant No.1 dated 05.02.2013 in subject No.59/2013 in accordance with Section 65(B) of the BDA Act and thereafter take appropriate decision in the matter within a period of eight weeks.
22. For better appreciation of the above facts the relevant final order one passed by the Hon'ble High Court of Karnataka in W.P.No.29502/2017 (BDA) dated 21.10.2021 is hereby reiterated as below: ORDER
(a) Endorsement (AnnexureE) bearing No.BDA/D.S1/C.A.T 302/201718 dated 23.06.2017 and Government letter (AnnexureR1) bearing No.ನಅಇ/06/ಬಬಬಭಭಸಸಸ/2014 dated 09.03.2014 are quashed.
(b) The 1st respondentBDA is directed to forward Annexure C resolution dated 05.02.2013 to the 2nd respondentGovernment within a period of four weeks from the date of receipt of a copy of this order.
(c) The 2nd respondentGovernment is directed to reconsider the resolution/proposal of the 1st respondentBDA dated 05.02.2013 in subject No.59/2013 in accordance with 23 O.S.No.7837/2013 Section 65B of the Act and thereafter to take appropriate decision in the matter within a period of eight weeks.
23. And since the plaintiffs have not at all elicited anything worth while in the crossexamination of the said DW.1 & since the plaintiff's witnesses i.e., PWs.2 to 4 in their crossexamination have admitted the above proceedings of W.P.No.29502/2017 & since the plaintiffs have not at all produced any other cogent materials to rebut the above order one passed in W.P.No.29502/2017 dated 21.10.2021 to consider the lease of suit property to the defendant No.2 for a period of 30 years then it has to be held in unequivocal terms that the plaintiffs have miserably failed to prove that the defendant No.2 is in unlawful possession of the suit schedule property & the same is causing public nuisance and as such the present suit of the plaintiffs under Section 91 of CPC is not at all maintainable in law.
24. So in view of the discussion made above, I am of the opinion that since the plaintiffs have failed to prove the facts of Issue No.1 to 5 with cogent material evidence & since the oral and documentary evidence of the plaintiffs that are placed on record does not corroborate the said facts of Issue No.1 to 5 & since the defendant No.2 has clearly rebutted the above case of the plaintiffs and further proved that since his application for grant of suit 24 O.S.No.7837/2013 property for a period of 30 years is still pending consideration in view of the order passed by the Hon'ble High Court of Karnataka in W.P.No.29502/2017 (BDA) dated 21.10.2021 then it has to be held that the present suit of the plaintiffs under Section 91 of CPC is not at all maintainable in law and as such the plaintiffs are not at all entitled to any reliefs as sought by them and accordingly I have answered Issue No.1 to 5 & 7 in the 'Negative' and Issue No.6 in the 'Partly affirmative' for Section 91 of CPC & 'Partly negative' for Section 64 of the BDA Act.
25. Issue No.8: In view of the discussion made on Issue No.1 to 7 and further holding Issue No.1 to 5 & 7 in the 'Negative' and Issue No.6 in the 'Partly affirmative' for Section 91 of CPC & 'Partly negative' for Section 64 of the BDA Act, I proceed to pass the following: ORDER The suit of the plaintiffs for the reliefs of declaration & permanent injunction against the defendants in respect of the suit schedule property is hereby dismissed.
Parties to bear their own costs.
Draw a decree accordingly.
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O.S.No.7837/2013 (Typed my dictation by the Judgment Writer directly on computer, corrected and then pronounced by me in the Open Court on this the 16 th day of December, 2021) (R. RAVI) XXIX Addl. City Civil & Sessions Judge, Bengaluru City.
ANNEXURE List of witnesses examined for the plaintiffs' side: PW.1 K. Srinivas Shastry PW.2 L. Jayakumar PW.3 K.P. Ramachandra PW.4 M.L. Rajanna List of documents exhibited for the plaintiffs' side: Ex.P.1 Office copy of the notice dated 02.09.2013.
Ex.P.2 Postal receipt.
Ex.P.3 Postal acknowledgement card.
Ex.P.4 Certified copy of the order dated 04.06.2009 issued by
Karnataka Information Committee.
Ex.P.5 Copy of endorsement dated 30.05.2009 issued by BDA.
Ex.P.6 Letter dated 23.12.2011 sent to Karnataka
Lokayuktha, Bengaluru, by BDA.
Ex.P.7 Attested copy of Trust Deed dated 22.02.1980.
Ex.P.8 Endorsement dated 20.08.2013 addressed to plaintiff
No.4 by BDA.
List of witnesses examined for the defendants' side: DW.1 D.N. Praveen List of documents exhibited for the defendants' side: Ex.D.1 Resolution dated 18.11.2018.
Ex.D.2 Certified copy of the order in W.P.No.29502/2017 (BDA), dated 21.10.2021.
Ex.D.3 Letter to BDA of July 1985 by Secretary. Ex.D.4 Letter to BDA dated 20.10.2009 by Secretary. 26
O.S.No.7837/2013 Ex.D.5 Letter to BDA dated 27.01.2011 by Secretary. Ex.D.6 Letter to BDA dated 03.05.2012 by Secretary. Ex.D.7 Letter to BDA dated 29.11.2012 by Secretary. Ex.D.8 Letter to BDA dated 26.12.2012 by Secretary. Ex.D.9 Letter to BDA dated 08.10.2010 by Secretary.
Exs.D.10}{ 4 Acknowledgements of BDA.
(a to d) }{
XXIX Addl. City Civil & Sessions Judge,
Bengaluru City.
Judgment pronounced in open
Court, vide separate judgment.
ORDER
The suit of the plaintiffs for the
reliefs of declaration & permanent
injunction against the defendants in
respect of the suit schedule property is
hereby dismissed.
Parties to bear their own costs.
Draw a decree accordingly.
XXIX ACC & SJ,
Bengaluru City.
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O.S.No.7837/2013