Bangalore District Court
Rajeev Manu R Alias Nagaraj G R vs Anil Kumar on 4 November, 2024
OS 199/2014-Judgment
KABC010146692014
IN THE COURT OF THE XVI ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH 12), BENGALURU
DATED: 4th DAY OF NOVEMBER 2024
PRESENT
SMT. JYOTHSNA D., LL.B., LL.M., D.F.A.,
XVI ADDL.CITY CIVIL AND SESSIONS JUDGE,(CCH12)
BENGALURU
ORIGINAL SUIT No.199/2014
PLAINTIFF/S 1) SRI RAJEEV R. MANU @ G.R. NAGARAJ,
S/o. G.A. Rudrasheety,
Aged about 62 years,
R/at Flat No.F-3, Varsha Residency,
No.1, Jaladarshini Layout,
2nd Main, New BEL Road,
Bangalore 560 094.
2) MASTER G.C. SHANMUKHA,
S/o. G.R.Chandrashekar,
Aged about 12 years,
Represented by his father G.R.Chandrashekar,
R/at Canara Bank Building,
Hassa Main Road,
Gorour,
Hassan District.
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OS 199/2014-Judgment
Represented by their GPA Holder
Smt. G.R. Pankaja @ Parimala,
D/o. G.A.Rudrasheety,
Aged about 58 years,
R/at Property No.9, 10, 15 & 16,
New Khatha No.937/9, 10, 15 & 16/592/918,
1st Main, 4th Cross, Marappa Garden,
Rajarajeshwari Nagar,
New Ward No.160, Halagevaderahalli,
Bangalore 560 085.
Represented by Smt/Sri S.B.M., Advocate
-- vs --
DEFENDANTS 1) SRI ANIL KUMAR,
Father name not known to plaintiff,
Aged about 43 years,
R/at No.303/A,
First Floor, 2nd Cross,
Marappa Layout,
Ideal Home Society,
R.R. Nagar,
Bangalore.
2) THE COMMISSIONER,
BBMP,
Bengaluru. (Deleted)
Defendant No.1 represented by H.R.M., Advocate
Defendant No.2 - Deleted
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OS 199/2014-Judgment
Date of Institution of suit 04.01.2014
Nature of suit SUIT FOR INJUNCTION
Date of commencement of evidence 14.07.2016
Date of Judgment 04.11.2024
Duration Year/s Month/s Day/s
10 10 00
(SMT. JYOTHSNA D.,)
XVI ADDL.CITY CIVIL AND
SESSIONS JUDGE,
BENGALURU (CCH 12)
JUDGMENT
Invoking the provision of Order VII Rule 1 read with Section 26 of CPC, the plaintiffs, through their GPA Holder, have instituted this suit against the defendants, seeking the relief of permanent injunction to restraining the defendants, their agents or anybody from constructing building by violating the sanction plan in the suit schedule B property and to grant mandatory injunction against the defendant No.1 to demolish the illegal structures put up by him in his schedule B property by encroaching the schedule A property, without leaving set back area and in the schedule A property, to incorporate the measurement of the schedule A 3 OS 199/2014-Judgment property measuring East to West 80 feet and North to South 60 feet, totally measuring 4800 square feet and for such other and further relief as are just, in the interest of justice.
2. In brief, the case of the plaintiffs is as follows:- The Plaintiffs are the absolute owners in possession and enjoyment of the property No.9, 10, 15 & 16, New Khatha No.936/9, 10, 15 & 16/592/918, 1st Main, 4th Cross, Marappa Garden, Rajarajeshwarinagar, Ward No.160, Halagevaderahalli, Bangalore- 560 085, herein after refer to as suit schedule A property, and the same has been purchased by them through an absolute sale deed dated: 16.01.2006 registered as document No.KEN-1-20850/2005- 06 in CD No. KEND 249, Book No.1 in the office of the Sub Registrar Kengeri, Bangalore and since from the date of purchase, they are in peaceful possession and enjoyment of the suit schedule A property without interference from anybody.
3. Due to their inconvenience in looking after the schedule property and in order to maintain and manage the same, the plaintiffs have executed the General Power of Attorney dated:10.07.2009 in favour of the SMT G.R. PANKAJA @ PARIMALA who is residing in the schedule A property.
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OS 199/2014-Judgment
4. The defendant No.1 is the owner of the property bearing No.14, 1st Main, 4th Cross, Marappa Garden, Rajarajeshwarinagar, Ward No.160, Halagevaderahalli, Bangalore- 560 085, which is situated at the Southern portion of the schedule A property and hereinafter refer to as suit schedule B property.
5. Recently, in the second week of November 2013, the defendant No.1 commenced the preparation for construction of building in Schedule B Property by violating the building by laws and sanction plan, Immediately, the GPA holder of plaintiff approached him and requested him to leave the set back as per sanction plan, but he arrogantly refused to leave the setback. Immediately, the plaintiff approached the second defendant and filed a complaint in this regard. The Authorities of the second defendant visited the spot and verified the initial marking for the construction, it clearly shows that the first defendant violating the sanction plan and building norms putting up construction and the defendant No.2 instead of taking legal action, simply warned him to not to deviate the plan, but no action has been taken till this day, even they know very well about the violation of building norms.
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OS 199/2014-Judgment
6. Subsequently on 18.12.2013, the first defendant commenced the construction in full swing and dug the suit schedule B property towards the schedule A property without leaving 3.5 feet space as setback. The second defendant is not taking any action except warning orally. If the first defendant is permitted to construct the building, then the plaintiffs will suffer without any light and air to their suit schedule A property. Hence, without alternative, the plaintiffs have filed the above suit. The plaintiffs have produced all the necessary documents in support their case as per the list of documents.
7. During the pendency of the above suit, the defendant No.1 has constructed the building in a brisk manner without leaving any set back lane to the plaintiffs' property and moreover, the defendant No.1 has encroached the plaintiffs' Schedule A Property and put up illegal construction and has constructed three floors. The plaintiff being, a female lady, questioned the illegal acts of the defendant, at that time defendant No.1 having antisocial contacts has threatened the plaintiffs with dire consequences and in fact, the plaintiffs have not been allowed to reside in their own property. The defendant No.1 is sending rowdy elements and threatening the plaintiffs, in fact, the plaintiffs have approached their counsel and intimated the said fact, but the previous counsel 6 OS 199/2014-Judgment was not prosecuting the case effectively before this Hon'ble Court. The plaintiffs have also given various complaints before the concerned police authorities and 2nd defendant authorities. As such the plaintiffs have obtained NOC from the previous counsel and engaged a new counsel and along with case file, on verifying the records, the new counsel has advised the plaintiffs that certain amendments has to be carried out and mandatory relief has to be sought as the defendant No.1 has already constructed completely over his property and by encroaching the plaintiffs' property. The photographs and CD showing illegal construction are produced for the kind perusal of this Court.
8. The cause of action for the suit arose on 18.12.2013 when the defendant No.1 put up illegal to construction towards the Southern portion of the Schedule A Property and the 1 st defendant with some antisocial elements came to the house of the plaintiffs and threatened the plaintiffs with dire consequence and told the plaintiffs not take any legal action for his illegal construction otherwise, they have to face the consequence and subsequently within the jurisdiction of this Court.
9. The court fee is paid as per the valuation slip annexed to the plaintiff. Hence, prayed to decree the suit. 7
OS 199/2014-Judgment
10. In response to the suit summons, both the defendants appeared through their respective counsel and filed their written statement.
11. In his written statement, the defendant No.1 has contended that the above suit has been filed through the general power of attorney alleged to have been given by the plaintiffs 1 and 2 and since the above suit is not accompanied by an application seeking permission to prosecute through agent in accordance with law, the above suit is not maintainable.
12. Further, the 2nd plaintiff is shown as minor and he is also not properly represented and the same is in violation of provisions of order 32 rule 2 of C.P.C., and on this ground also, the plaint is to be taken off the file.
13. Without prejudice to the above, the defendant No.1 contended that the plaintiffs have not approached this Hon'ble court with clean hands, but with an ulterior motive to cause harassment to this defendant. The plaintiffs intentionally given wrong address of the defendant No.1 in order to get an order behind the back of this defendant No.1.
14. In regard to the averments made in para 2 of the plaint regarding ownership of the plaintiff over schedule A 8 OS 199/2014-Judgment property, the defendant No.1 put the plaintiffs to strict proof of the same. The plaintiffs intentionally have not mentioned the measurement of properties and thereby misled this court. As per boundaries to the schedule A property, towards southern boundary, there does not exists site No.14. In fact, the plaintiffs have encroached a portion of defendant's property on his northern side. Further the defendant No.1 has put the plaintiffs to strict proof of the averments made in para 3 of the plaint regarding GPA dated: 10.7.2009 alleged to have been executed by plaintiffs in favour of Smt.G.R.Pankaja @ Parimala.
15. In so far as the averments made in para 4 of the plaint regarding title and possession of the defendant No.1 over suit B property, the defendant No.1 contended that the plaint does not properly describe the suit B property and the defendant No.1 contended that he is the owner of site bearing New No.2/14, old No. 14 (56/14), formed out of property No.56, Halagevaderahalli, Kengeri Hobli, Rajarajeshwari CMC, now comes within limits of BBMP.
16. The averments made in para 5 of the plaint regarding the defendant No.1 preparing for construction of building on suit B property by violating the building laws and the alleged warning 9 OS 199/2014-Judgment by the plaintiff are all created story of the plaintiff and the same are contended to be false. Further averments made in para 6 of the plaint that on 18.12.2013, the defendant No.1 commenced the work in full swing and dug the suit B property towards Schedule A property without leaving set back of 3.5 feet space are all contended to be false and baseless.
17. There is no cause of action to the above suit and the one alleged in the above suit is illusory and created for the purpose of above suit with an ulterior motive to cause harassment to the defendant No.1 to gain unlawfully.
18. The defendant No.1 contended that he is the absolute owner in peaceful possession and enjoyment over site bearing New No.2/14, old No.14 (56/14), formed out of property No.56, Halagevaderahalli, Kengeri Hobli, Rajarajeshwari CMC, now comes within limits of BBMP having measurement of East to West 40 feet and North South 30 feet, bounded on East by: Site No.11, West by:
Road, North by: Site No.15 and South by: Site No.13, having acquired the absolute right, title, interest and possession over the same by virtue of registered sale deed dated:28.6.2007, executed by its predecessor in title Smt.Parvathi G. which was duly registered as Document No.RRN-1-00855-2007-08, Book No.1, 10 OS 199/2014-Judgment stored in C.D.NO.KRND4 in the office of the sub-registrar, Rajarajeshwarinagar. Pursuant thereto, khatha was also transferred to his name Uttarapatra dated: 4.1.2008 issued by BBMP, Rajarajeshwarinagar Zone as per Khatha No.2/2/14/56. Since then, the defendant No.1 has been in peaceful possession and enjoyment over the aforesaid property bearing No.2/2/14/56 by paying regular taxes to the BBMP. Thereafter, during the year 2013, the defendant No.1 with an intention to put up construction of dwelling house on the aforesaid property approached the BBMP and applied for building approved plan and the BBMP, after collecting requisite building licence fee, betterment charges and such other fees, has granted building licence to construct stilt+ground+first+Second floor building on the aforesaid property as per licence dated: 15.6.2013 and also issued building plan. According to the plan, the defendant No.1 has started putting up construction of building/dwelling house on his property by observing the norms of building plan by borrowing loan from the bank and other hand loans at higher rate of interest. The copy of the Sale Deed, Uttarapatra, Building License fee paid receipt and building license and plan issued by BBMP and also the loan sanction letter issued by Bank for kind perusal of this court. 11
OS 199/2014-Judgment
19. It is further contended by defendant No.1 that he has entrusted the work to contractors for putting up construction by paying huge money and work has already started and the same has come to first floor. When the things stood thus, the GPA holder of plaintiffs, time and again used to give torture to the defendant No.1 by giving false complaints against him to police station as well as BBMP. The BBMP and the jurisdictional police have personally visited the spot and they are also satisfied with the construction work being carried out as per the building plan of BBMP. In fact, the plaintiffs have encroached upon the defendant No.1's property to his Northern side. The said encroachment has come to the light, when the defendant No.1 has applied for survey of his site and the surveyor of BBMP, Rajarajeshwarinagar Zone has inspected the sites and has prepared a sketch, wherein, it was specifically notified that on the northern side of defendant No.1's property, an extent of 1 feet has been encroached by the plaintiffs i.e., owners of site No.15 as could be seen from the sketch prepared by surveyor of BBMP. Thus the plaintiffs have not approached this court with clean hands and they only encroached upon the defendant No.1's property. The plaintiffs have already put up construction of house on site No.15 without leaving any set back on southern side of their property till the edge of defendant 12 OS 199/2014-Judgment No.1's property in No.14. The photographs are produced for kind perusal of this court. As could be seen from the photographs, the plaintiffs are only guilty of putting up construction over their land without any sanctioned plan and without leaving setback. Thus the plaintiffs themselves have violated the BBMP norms and now they are pointing towards the defendant No1.
20. The defendant No.1 after having borrowed loan from bank and other friends for higher rate of interest, has started construction on his property by observing norms of BBMP and viewed from any angle, the suit of the plaintiffs is not maintainable and the same deserves to be dismissed.
21. It is contended that all other averments made in various paras of plaint which are not specifically traversed in the written statement are denied and prayed to dismiss the suit of the plaintiffs by imposing heavy costs for unnecessarily dragging the defendant to the court and also for causing harassment to him, in the interest of justice and equity.
22. Subsequent to the amendment of plaint, the defendant No.1 has filed his additional written statement, contended that the amendment made to the plaint and the additional relief sought for in the amended plaint is not 13 OS 199/2014-Judgment maintainable either in law or on facts. The amendment sought for as regards plaint averments and additional relief is hopelessly barred by the Limitation Act, for the reason that, the present suit is originally filed seeking the relief of Permanent Injunction and the defendant No.1 has filed his written statement way back in the year 2014 itself i.e,. on 13.3.2014 and after the lapse of 4 years, the amendment of additional prayer for demolition has been sought for by the plaintiff.
23. The valuation slip filed by the plaintiffs and the court fee paid in accordance with the same is not proper and the plaintiffs have not properly valued the suit and on this ground itself, the plaint is liable to the rejected.
24. The averments made in the amended plaint in para 6A and para 1 (a) of amended prayer is denied as false. It is false to aver that defendant No.1 has put up construction without leaving any set back lane to the plaintiffs' property and it is also false to aver that the defendant has encroached upon plaintiffs' Schedule A Property to an extent of alleged 1 ½ feet and 40 feet and the same is hereby specifically denied. The construction of house by the defendant No.1 is in accordance with the BBMP bye laws and by observing the norms. It is also false to allege that defendant 14 OS 199/2014-Judgment No.1 has threatened the plaintiffs with dire consequences by using alleged antisocial elements. It is also false to allege that defendant No.1 is not allowing plaintiffs to reside in their property. The plaintiffs have hatched a story to create sympathy in the mind of this court. In fact, it is the plaintiffs who have threatened the defendant No.1 by using her/their influence of politicians by giving false complaints to the various authorities. The averments made in the said paragraph regarding obtaining NOC from earlier advocate and engaging new counsel are all done only to suit the convenience of plaintiffs and to fill up the lacuna in the case of plaintiffs. The defendant No.1 has put up construction of his house on his land by observing norms and also by obtaining approved plan from BBMP by borrowing loans for higher rate of interest. At no point of time, the defendant No.1 has encroached upon plaintiffs' land. It is the plaintiffs who have put up construction on their land without leaving set back, attached to the property of the defendant No.1. Thus the plaintiffs themselves are guilty of not observing the BBMP norms.
25. The additional prayer sought for by the plaintiffs is not maintainable either in law or on facts. The plaintiffs are not entitled to seek the relief. The plaintiffs are liable to pay court fee 15 OS 199/2014-Judgment on plaint to seek the said relief and as such, the suit itself is liable to be rejected. Hence, prayed the reject the plaint with costs.
26. The defendant No.2 in its written statement contended that the above suit is wholly misconceived and as such liable to be dismissed in limine.
27. The contents of paragraph No. 2 that the plaintiffs are the owners of the suit schedule property and the other averments are not within the knowledge of the defendant No.1. The documents produced by the plaintiffs are created for this case.
28. The contents of paragraph No.5 that the 1st defendant has obtained a sanction plan to a residential building on his property described in Schedule 'B' property. It is admitted that the plaintiffs have filed a complaint to the Assistant Executive Engineer concerned stating that the Ist defendant has started construction in schedule 'B' property in deviation of the building bye-laws. It is not true to say that the 2nd defendant has not taken action on the complaint of the plaintiffs.
29. The contents of paragraph No. 6 of the plaint that the AEE made an inspection of schedule 'B' property and noticed deviations in the construction as compared to the sanctioned plan there were set back deviations on all the four sides with varying 16 OS 199/2014-Judgment percentage of deviations. The said deviations were noted and Provisional Order under Section 321(1), 321(2) dated 20/1/14 was issued by the AEE intimating deviations to the 1st defendant and calling upon him to set right the constructions in terms of the sanction plan. He was also called upon to show cause why Provisional Order should not be confirmed. The Provisional Order was served on the 1st defendant. He has not given any reply to the show cause notice. Therefore, the AEE has passed an order of Confirmation under section 321(3) dated 27/1/2014 as per KMC Act., directing the 1st defendant to remove such of deviations mentioned in the PO notice and to bring the constructions in term of the sanction plan. The Confirmation Order has also been served on the 1st defendant on 27/1/2014. Hence the AEE has sent a proposal to the concerned Executive Engineer for authorizing him to execute the Confirmation Order for which an estimation is also prepared and sent to the BE. On receipt of authorization, the AEE will take further action in the matter. The contentions contrary to the above facts are false and denied.
30. The suit is not maintainable and liable to be dismissed for non-compliance of mandatory provision section 482 of the KMC Act, 1976.
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OS 199/2014-Judgment
31. The plaintiffs are guilty of suppressio veri and suggestio falsi. The plaintiffs have not approached this Court with clean hands. The plaintiffs are resorting to stratagem/trick.
32. There is no cause of action to file this suit against the defendant No.2 and no relief is sought against the defendant No.2.
33. On the basis of above pleadings and materials placed on record, the following Issues are framed by the Court for the determination of this case;
Issue No 1 :Whether the Plaintiff proves their right, title and possession over the suit schedule property?
Issue No 2 :Whether the plaintiff proves the alleged illegal construction made by defendant by encroaching the suit property and without leaving set back space?
Issue No 3 :Whether the plaintiff is entitled for the decree claimed in the suit?
Issue No 4 :What Order or Decree?
34. On 20-08-2018 the following Additional issues are framed:-
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OS 199/2014-Judgment Addl. Issue No 1 : Whether the plaintiffs proves that during the pendency of the suit, the defendant No.1 has encroached in schedule 'A' property measuring 1½ x 40 feet and constructed building in brisk manner without leaving set back ?
Addl.Issue No 2: Whether the plaintiffs are entitle for relief of mandatory injunction?
35. Further, on 10-12-2018, again the following Additional issues are framed as additional issue Nos.1 to 3. But already additional issue Nos.1 and 2 are framed as above, hence, for the convenience of court, it is corrected as Additional Issue Nos.3 to 5 as under:-
Addl.Issue No 3: Whether the defendant No.1 proves that suit of the plaintiffs is barred by limitation? Addl. Issue No 4:Whether the defendant No.1 proves that plaintiffs have not properly valued suit property and proper court fee?
Addl.Issue No 5: Whether the defendant No. 1 proves that he constructed his house in accordance with BBMP bye laws and by observing norms?
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OS 199/2014-Judgment
36. To prove the case of the plaintiffs, their GPA Holder G R Pankaja @ Parimala entered into witness box and got examined herself as PW 1 and Ex.P 1 to Ex.P 10 are got marked through her. The learned counsel for defendant No 1 cross examined her. To disprove the case of the plaintiffs and to defend his side, the defendant No.1 himself entered into witness box and got examined as DW 1 and Exs.D.1 to Ex.D.5 are got marked through him. The learned counsel for plaintiff cross examined him. Though defendant No.2 filed its written statement, but it was deleted on 05-12-2014 as not pressed by the plaintiffs.
37. Heard and perused materials placed on record. Accordingly, this Court answers above issues and additional issues as under;
Issue Nos.1 and 2 and
Additional Issue No 1 : In the Negative;
Addl.Issue No 3 : In the Affirmative;
Addl.Issue No 4 : In the Negative;
Addl.Issue No 5 : Deleted as not necessary for
proper determination and
adjudication of justice.
Issue No 3 and
Addl. Issue No 2 : In the Negative;
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OS 199/2014-Judgment
Issue No 4 : As per the final Order;
For the following;
REASONS
38. Issue No 1, 2 and Additional Issue No 1 :- These three issues are inter connected to each other, hence, to avoid repeated discussions they are taken up together here under;
Originally, this suit is filed against defendant Nos.1 and 2 for the relief of permanent Injunction through the GPA Holder of plaintiffs as follows;
"1. For permanent injunction by restraining the defendant, their agents or anybody to construct the building by violating the sanction plan of the suit schedule B property,
2. Pass such other order, orders as this Hon'ble court deems fit under the facts and circumstances of the case."
39. As per materials on record the defendant No.2 BBMP filed its written statement on 30-06-2014 but defendant No.2 is deleted on 05-12-2014 as plaintiffs have not pressed the suit against defendant No 2.
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OS 199/2014-Judgment
40. Later the plaint is amended by adding paragraph 6(A) and prayer 1(a) and prayer 1(a) is as follows;
"1a. To grant mandatory injunction against the defendant-1, directing him to demolish the illegal structures put up by the defendant in his Schedule B' Property and by encroaching the southern side of Schedule A property and without leaving set back lane;
In the Schedule A of the plaint to incorporate the measurement of the Schedule A property measuring East to West 80 feet and North to South 60 feet, totally measuring 4800 Square feet."
41. After that, the plaintiffs have paid Court fee of amount Rs.13,845/-.
42. To prove the case of the plaintiffs, their GPA Holder entered into witness box and got herself examined by oath as PW 1 and filed sworn affidavit of examination in chief as PW 1. To substantiate the case she has produced certain documents which are marked as Ex.P 1 to Ex.P 10.
43. In her documentary evidence;
Ex.P 2 is the certified copy of GPA executed by plaintiffs in her favour under which power of attorney is given to her to prosecute case and make use of 22 OS 199/2014-Judgment other powers executed by them as mentioned in the said document in respect of suit schedule A property. Suit schedule 'A' property is;
"All the part and parcel of the property bearing property No.9, 10, 15 & 16, New Khatha No.936/9, 10, 15 8 16/592/918, 1st Main, 4th Cross, Marappa Garden, Rajarajeshwarinagar, Ward No.160, Halagevaderahalli, Bangalore-560 085 bounded on:
East by : 25 feet Road, West by : 25 feet Road, North by : Site Nos. 8 and 171, South by : Site Nos. 11 and 141."
44. But, after amendment of plaint "171" and "141" corrected as 17 and 14 respectively. It is to be noted that plaintiff has not produced any original documents. Ex.P 1 and Ex.P 2 which are the main ingredient of this case are in certified copies and in Ex.P 2 for a first sight the "17" and "14" in the schedule looking like "171" and "141".
Ex.P 2 is the certified copy of sale deed dated 10-01- 2006 executed by Sri.Marappa in favour of plaintiff No.1 and 2 for the sale consideration amount of Rs 23 OS 199/2014-Judgment 32,18,850/-in respect of plaint A schedule property. In terms and conditions No (ix) it is iterated as:-
"ix) The Vendor shall upon a request by the Purchasers do and / or execute any documents or cause to be executed all such lawful acts, deeds and things whatsoever for further and more perfectly conveying the absolute right, title and interest in the Schedule Property to the Purchasers and putting the Purchasers in possession of the Schedule Property according to the true intent and meaning of this Deed."
Ex.P 3 is the certified copy of khatha certificate dated 17-06-2010 in respect of suit schedule property which is in the name of Rajeev R. Manu uruf G.R. Nagaraj and Master G.C, Shanmukha.
Ex.P.4 is the copy of the complaint lodged by PW 1 before Deputy Commissioner, BBMP against one Sri Raghavendra regarding construction of building by violating sanction plan in which it is stated as; "ನಿವೕೆಶನ ಸಂಖ್ಯೆ 14, 7ನೇ ಮುಖ್ಯರಸ್ತೆ, 4ನೇ ಅಡ್ಡ ರಸ್ತೆ, ಮಾರಪ್ಪ ಬಡಾವಣೆ, ಆರ್ ಆರ್ ನಗರ ಬೆಂಗಳೂರು ಇದರ ಮಾಲೀಕರಾದ ಶ್ರೀ ರಾಘವೇಂದ್ರ ರವರು ನಿಯಮ ಉಲ್ಲಂಗಿಸಿ ಸೆಟ್ ಬ್ಯಾ ಕ್ ಬಿಡದೇ ಒತ್ತು ವರಿ ಮಾಡಿ ಕಟ್ಟಡ ನಿರ್ಮಿಸಲು 24 OS 199/2014-Judgment ಪ್ರಾ ರಂಭಿಸಿದ್ದಾ ರೆ. ಆದ್ದರಿಂದ ದಯವಿಟ್ಟು ಅವರ ವಿರುದ್ಧ ಕಾನೂನು ಕ್ರಮ ತೆಗೆದುಕೊಂಡು ಪಕ್ಕದ ನಿವೇಶನದಾರರಾದ ನಮಗೆ ಬೆಳಕಿಗೆ ತೊಂದರೆಯಾಗದಂತೆ ಮಾಡಿಕೊಡಬೇಕೆಂದು ಪ್ರಾ ರ್ಥಿಸಿಕೊಳ್ಳು ತ್ತೆೇವೆ." Here it is to be noted that the PW 1 made complaint against Raghavendra and this suit is filed against Sri Anil Kumar. In Ex.P.4, she has mentioned the said Raghavendra is owner of site No 14 situated at 1st main road, 4th cross road, Marappa Layout, RR Nagar, Bangalore. But in plaint paragraph 4, she has stated that the defendant No.1 named Anil Kumar is the owner of the said property which is mentioned as B schedule property in the plaint. She made complaint against one person and filed this suit against another person. But, there is no pleading about whether the said Raghavendra is original owner of B schedule property and sold it to defendant No.1 and further she has not stated that whether said complaint is lodged by mentioning wrong name.
45. The B schedule property is mentioned in the plaint as;
"All the part and parcel of the property bearing property No. 14, 1st Main, 4th Cross, Marappa Garden, 25 OS 199/2014-Judgment Rajarajeshwarinagar, Ward No.160, Halagevaderahalli, Bangalore-560 085 bounded on:
East by : Road, West by : Site No.11, North by :Site No.15, South by : Site No.13."
Ex.P 5 is the "true copy" of sanction plan granted by BBMP in favour of defendant Anil Kumar in which details of proposed structure is given.
Ex.P 6 and Ex.P 7 are two photographs and Ex.P 8 is the CD which contains Ex,P 6 and Ex.P 7. In these photographs it shows fence and inside the fence the earth work for construction is going on .
Ex.P 8 is the copy of FIR dated 20-01-2008 before Rajarajeshwari Nagara Police Station through which complaint is lodged by PW 1 against Subbaiah, Smt.Kamalamma and others. In this document, the name of defendant No 1 is not reflected and there is nothing about interference and construction by defendant No 1.
Ex.P 9 is the copy of complaint lodged by PW 1 before the Commissioner of Police in which it is stated that 26 OS 199/2014-Judgment she got permanent order from the Court after 20 years in respect of property No.10, 9, 15 and 16. But, she has not produced such order before this Court. In the said document there is mention about this case.
Ex.P 10 is the copy of complaint dated 13-07-2015 lodged by PW 1 before the Commissioner of BBMP regarding order in OS No 4760/10 in which it is stated as, " ರಾಜರಾಜೇಶ್ವರಿ ನಗರ ವಲಯ ವ್ಯಾ ಪ್ತಿಯ ಹಲಗೆ ವಡೇರಹಳ್ಳಿ ವಾರ್ಡ್ ನಂ. 160, ಸ್ವತ್ತಿನ ಸಂಖ್ಯೆ 9, 10, 15 ಮತ್ತು 16 ಹೊಸ ಖಾತಾ ಸಂಖ್ಯೆ 936-9, 1315 ಮತ್ತು 16, 592, 918, ಪೂರ್ವ ಪಶ್ಚಿಮ 80-00 ಅಢಿ ಉತ್ತರ ದಕ್ಷಿಣ 60-00 ಅಡಿಗಳ ಸ್ವತ್ತು , ಸಿವಿಲ್ ನ್ಯಾ ಯಾಲಯದ ಆದೇಶ ಸಂಖ್ಯೆ ಓಎಸ್ ನಂ. 4760-10 ರ ಆದೇಶದಲ್ಲಿ ಘನ ನ್ಯಾ ಯಾಲಯ ಪ್ರತಿಭಂದಕಾಜ್ಞೆ ನೀಡಿರುತ್ತಾ ರೆ. ಈ ಆದೇಶವನ್ನು ನಿಮ್ಮ ಕಂದಾಯ ದಾಖಲೆಗಳಲ್ಲಿ ನಮೂದಿಸಬೇಕಾಗಿ ತಮ್ಮಲ್ಲಿ ವಿನಂತಿ.
ಘನ ನ್ಯಾ ಯಾಲಯ 5 ವರ್ಷಗಳು ನ್ಯಾ ಯಾಲಯ ಸುದೀರ್ಘ ವಿಚಾರಣೆ ನಡೆಸಿ ನಮ್ಮ ನಿವೇಶನವನ್ನು 1 1/2 ಅಡಿ ಅಗಲ ಉದ್ದ 40-00 ಅಡಿಯನ್ನು ಒತ್ತು ವರಿಯನ್ನು ಅಕ್ರಮವಾಗಿ ಮಾಡಿಕೊಂಡಿದ್ದು , ಅನಧಿಕೃತವಾಗಿ ಕಟ್ಟಿಕೊಂಡಿರುವ ಕಟ್ಟಡವನ್ನು ಕಟ್ಟಿಕೊಂಡಿರುವುದಕ್ಕೆ ನ್ಯಾ ಯಾಲಯ ಆಕ್ಷೇಪಿಸಿ ನಮ್ಮ ನಿವೇಶನಕ್ಕೆ ಶಾಶ್ವತ ಪ್ರತಿಭಂದಕಾಜ್ಞೆ ಕೊಟ್ಟಿರುತ್ತಾ ರೆ.
ಆದುದರಿಂದ ತಾವುಗಳು ತಮ್ಮ ಕಂದಾಯ ಅಧಿಕಾರಿಗಳಿಗೆ ಮೇಲ್ಕಾ ಣಿಸಿದ ಸ್ವತ್ತು ಗಳಿಗೆ ಸಂಬಂಧಪಟ್ಟಂತೆ ದಾಖಲೆಗಳಲ್ಲಿ ನಮೂದಿಸಲು ಆದೇಶ ನೀಡಬೇಕೆಂದು ತಮ್ಮಲ್ಲಿ ವಿನಂತಿ. ಸದರಿ ಸ್ವತ್ತಿಗೆ ಕಟ್ಟಬೇಕಾದ ಅಭಿವೃದ್ದಿ ಶುಲ್ಕ, ಕಂದಾಯ ಶುಲ್ಕ, ಎಲ್ಲವನ್ನು ಕಟ್ಟಿದ್ದು , ಆದಾಗ್ಯೂ ಮನೆಯ ಹತ್ತಿರ ಹೋಗಲು ಬಿಟ್ಟು ಕೊಡುವುದಿಲ್ಲ. ನಮ್ಮ ನಿವೇಶನಗಳಿಗೆ ತುಂಬಾ ತೊಂದರೆಯಾಗಿದೆ. ನಮ್ಮ ಮನೆಯು ತುಂಬಾ ಹಾಳಾಗಿರುತ್ತದೆ. ಈ ಅರ್ಜಿಯ ಜೊತೆ 27 OS 199/2014-Judgment ನ್ಯಾ ಯಾಲಯದ ಆದೇಶವನ್ನು ಲಗತ್ತಿಸಿರುತ್ತೇನೆ." But, she has not produced the certified copy of said order before this Court. As per order sheet this suit is filed on 04-01- 2014. As per Ex.P 9 she has stated as supra that after 20 years of battle she succeeded and got the relief of Permanent order in respect of site No.10, 9, 15 and 16 against encroachment/interference over it. The said sites are nothing but suit schedule properties. Again the same is affirmed by her in Ex.P 10 as supra. In the said document case number is mentioned as O.S. No 4760/10. That means that case filed prior to filing of this suit in respect of suit schedule property. As in Ex.P 10, it reflects the same property which is in A schedule of plaint of this case. But she has not disclosed about O S No 4760 /10 in the plaint.
46. On the other hand, to disprove the case of the plaintiffs and defend his side, the defendant No.1 himself entered into witness box and got himself examined by oath as DW 1 and filed sworn affidavit of his examination in chief under which all the contentions in his written statement are reiterated. To substantiate his side, he has produced 5 documents which are marked as Ex.D 1 to Ex.D 5.
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OS 199/2014-Judgment
47. In his documentary evidence;
Ex.D 1 is the certified copy of sale deed dated 28-06- 2007 which is executed by Parvathi G., as vendor in favour of defendant No.1 pertaining to schedule B property for the sale consideration amount of Rs.17,22,000/-.
Ex.D 2 is the certified copy of sale deed dated 04-02- 2005 in respect of B schedule property executed by Smt.K. Sunanda in favour of Smt.G. Parvathi the vendor of defendant No 1. That means defendant No.1 has produced two title documents towards B schedule property that is sale deed through which his vendor purchased the B schedule property and the sale deed through which he purchased the B schedule property.
48. In this regard, in page No.9 of Ex.D 1, it is recited as the original documents and possession pertaining to the said property was handed over to defendant No 1. The ownership of defendant No 1 in respect of B schedule property is undisputed fact. As per plaint as in paragraph 4 of the plaint it is stated that the defendant No 1 is the owner of property bearing No 14, 1st Main, 4 th cross, Marappa Garden, Rajarajeshwarinagar, Ward No 160, 29 OS 199/2014-Judgment Halagevaderahalli, Bangalore-560085 which is situated at the Southern portion of the schedule A property which is B schedule property in plaint.
Ex.D 3 is the khatha certificate dated 25-11-2021 and Ex.D 4 is the B khatha extract dated 26-11-2021 issued by BBMP pertaining to B schedule property in which the name of defendant No 1 is entered which supports the transaction under Ex.D 1.
Ex.D 5 is the sketch of site No.14 issued by BBMP surveyor in which to the north of site No.14, site No.15 is existed and to the south of site No.14, site No.13 is existed. And to the East site No.11 and to the west there is a road. While comparing it with Ex.P 5 the true copy of sanction plan in this document it is stated that the said plan is pertaining to residential building on khatha No 2/14, Marappa Layout, Halagevaderahalli, Rajarajeshwarinagar, Bangalore, Ward No 160 which is nothing but plaint B schedule property. The boundaries in Ex.D 5 clearly correspond with boundaries shown in Ex.P 5, and Ex.D 1 and Ex. D 2 and the boundaries of B schedule property shown in plaint.
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OS 199/2014-Judgment
49. Now, before going through the cross examination of PW 1 and DW 1, once again this Court analysed the pleadings and above documentary evidence here under;
* Firstly, as per paragraph 2 of the plaint, according to the plaintiff she is absolute owner and in possession and enjoyment of suit schedule A property. But in paragraph 5 of the written statement of defendant No.1, he put the plaintiff to strict proof of ownership of the plaintiff over the A schedule property. In the same paragraph defendant No.1 stated as, "in fact, the plaintiffs have encroached a portion of defendant's property on his northern side." That means they admitted the possession of plaintiff over the 'A' schedule property.
* Secondly, as per paragraph 4 and 5 of the plaint, the ownership and possession of defendant No 1 over the 'B' Schedule property is undisputed fact. The question in controversy is while constructing the building on 'B' schedule property, the defendant No 1 as per paragraph 5 of the plaint, is putting construction in B schedule property by violating the building by laws and sanction plan without leaving 3.5 feet space as set back area. In this regard, in paragraph 5 of the written statement of defendant No.1 contended that plaintiffs have intentionally not mentioned the 31 OS 199/2014-Judgment measurements of properties. In this regard this Court gone through Ex.P 1 and Ex.P 2 and plaint A schedule property in the plaint. Here it is important to be noted that in Ex.P 1 the A schedule property of the plaint mentioned as;
"All the piece and parcel of immovable property bearing site No 9, 10, 15 & 16, Khata No.856/592, Ward No. 24 Rajarajeshwarinagar CMC, Halagevaderahalli, Kengeri Hobli, Bangalore South Talk, measuring East to West 80 Feet and North to South 60 Feet, totally measuring 4800 Square Feet with 1½ Square, Sheet Roofed Built House and bounded as follows:
East by : 25' Road West by : 25' Road North by : Site No. 8 & 17 South by : Site No. 11 & 14"
It shows that in the plaint document, there is mention about measurement of A schedule property.
50. Next to that in Ex.P 2, the plaint A schedule property mentioned as;
"All that piece and parcel of the Property No.9, 10, 15 & 16, Khatha No.856/592, Ward No.24, 1st Main, 3 rd Cross, Marappa Garden, Rajarajeshwari Nagar, 32 OS 199/2014-Judgment Bangalore 560 085, measuring Eost to West : 80 (eighty) feet and North to South: 60 (sixty) feet and bounded on the :
East by : 25 Feet Road;
West by : 25 Feet Road;
North by: Site Nos. 8 and 17; and South by : : Site Nos.11 and 14;"
51. In this document though the total measurement of 4800 sq feet is not mentioned but 80x60 measurement is mentioned as above.
52. But in the plaint the A schedule property is mentioned as;
"All the part and parcel of the property bearing property No.9, 10, 15 & 16, New Khatha No.936/9, 10, 15 & 16, New Khatha 836/9, 10, 15 & 16/592/918, 1st Main, 4th Cross, Marappa Garden, Rajarajeshwarinagar, Ward No.160, Halagevaderahalli, Bangalore-560 085 bounded on:
East by : 25 feet Road, West by : 25 feet Road, North by : Site Nos. 8 and 171, South by : Site Nos. 11 and 141.
In the northern side and Southern side to rectify as follows:
North by : Site No.8 and 17, 33 OS 199/2014-Judgment South by : Site No.11 and 14."
53. Actually in the original plaint, the boundary is wrongly mentioned and it is amended later. But in the plaint, nowhere either in pleadings or in the schedule, the measurement of property is mentioned though the measurements are mentioned in the plaint documents. While filing of the suit, such measurement is not mentioned even though suit is mainly based on measurement of the property as the main claim of the plaintiff is that the defendant No.1 constructed building illegally without leaving set back area towards property of plaintiffs. After lapse of 4 years from the date of filing of the suit, plaintiff has amended the plaint and inserted paragraph 6(A) and prayer 1(a) and in prayer 1(a), the measurement of the property is mentioned without mentioning the same in paragraph 6(A) and no mention is there about measurement in the body of the plaint and in the plaint schedule which gives presumption that to fulfill the said lacuna, the plaintiffs made such amendment.
54. Thirdly, originally the plaintiff has made the Commissioner of BBMP as defendant No.2 and after service of summons, it reported appearance through its learned counsel and filed written statement as narrated above. In its written statement defendant No.2 contented all technical and legal grounds as about 34 OS 199/2014-Judgment non-compliance of mandatory statutory provision for prior notice to defendant No.2 by the plaintiff prior to filing of the suit against it under Section 482 of KMC Act and about action taken by it under Section 321(1) and 321(2) of KMC Act on 20-01-2014. But, after filing of written statement by defendant No.2, the plaintiff has deleted defendant No.2 as not pressed which shows attitude of the plaintiffs in respect of their case. Though defendant No.2 has been deleted from the cause title of the plaint, but, averments against BBMP in paragraph 5 in page No 6 of the plaint remained as it is without deleting which runs as "plaintiff approached the second defendant (BBMP-Authorised person who issued sanction plan to defendant No 1 as per Ex.P 5) and filed the complaint in this regard(about alleged illegal construction by the defendant No.1 in plaint B schedule property without leaving set back area towards adjacent property of the plaintiffs), the authorities of 2 nd defendant visited the spot and verified the initial marking for the construction, it clearly shows that 1st defendant violating the sanction plan and building norms, the defendant No.2 instead of taking legal action, simply warned him not to deviate the plan, but no action has been taken till the date of filing of the suit, even they know very well about the violation of building norms." There is no proper measurement shown by the plaintiff to show and establish 35 OS 199/2014-Judgment illegal construction. Further, the BBMP is the only authority to give evidence as to establish whether defendant No.1 constructed a building in B schedule property by violation of their sanction plan without leaving set back area towards plaintiffs' property. But, plaintiff has not taken any pain to bring the concerned authority of BBMP to witness box to prove her side as defendant No.1 violated sanction plan etc which are averred by the plaintiff. The plaintiffs neither brought the authority of BBMP to the witness box nor taken any pain to appoint Court Commissioner to measure the alleged property where alleged violation made to prove the case.
Fourthly, surprising point is that this suit is filed against one Anil Kumar. But plaintiffs have produced 2 documents pertaining to cause of action about the alleged illegal construction at Ex.P.4 and Ex.P 8. In Ex.P 4 the complaint is given against one Raghavendra, whereas it is not the name of defendant No.1. But this complaint contains about construction made by Raghavendra in plaint B schedule property. The place for 'date' in document remained blank. Further, Ex.P 8 is the FIR dated 20-01-2008. But, as per paragraph 7 of the plaint cause of action arose on 18-12- 2013 after 5 years from the date of offence mentioned in Ex.P 8. It is to be noted that in Ex.P 8 there is no name of defendant No.1. In this document the names of accused mentioned as "Subbaiah, 36 OS 199/2014-Judgment Smt.Kamalamma and others." Plaintiff has not pleaded in the plaint that in "others" defendant No 1 is coming. Therefore, plaintiff himself failed to prove the "Cause of Action" to this suit.
Fifthly, Ex.P.9 is the document which is in respect of subsequent event after filing of this suit, in which it is mentioned as ನಾನು ಕೋರ್ಟ್ನಲ್ಲಿ 20 ವರ್ಷದಿಂದ ಹೋರಾಡಿ ಶಾಶ್ವತ ಆಸ್ತಿಗೆ ಆರ್ಡರ್ ತೆಗೆದುಕೊಂಡಿರುತ್ತೆೇನೆ. ಆದರೆ ನನಗೆ ಅಲ್ಲಿ ಸುತ್ತೆ ನನ್ನ ಆಸ್ತಿ ನಂಬರ್ 10, 9, 15, 16 ಆಗಿದೆ. ನಾನು 15ನೇ ನಂಬರ್ ಸೈಟ್ನಲ್ಲಿ ಮನೆ ಕಟ್ಟಿರುತ್ತೇೆನೆ. ನೀರು ವಿದ್ಯು ತ್ ಹಾಕಿಸಿರುತ್ತೇನೆ. ಕಾಂಪೌಂಡ್ ಹಾಕಿ ನಾನು ಕಾತೆ ಕಂದಾಯ ಕಟ್ಟಿ ನೀರು ಬೋರ್ಹಾ ಗೂ ಕಾವೇರಿ ನಲ್ಲಿ ಹಾಕಿ ವಾಸಮಾಡಿರುತ್ತೆೆೇನೆ. ನಾನು 2014 ರಲ್ಲಿ ನನ್ನ ಪಕ್ಕದ ಸೈಟ್ ಕೇಸ್ನಂಬರ್ 199-14 ಅನಿಲ್ಕುಮಾರ್ ಎಂಬುವನನ್ನು ಮನೆ ಕಟ್ಟು ವಾಗ ನನ್ನ ಕಾಂಪೌಂಡ್ಒಡೆದು ನೀರು ವಿದ್ಯು ತ್ ತೆಗೆದು ಮನೆ ನುಗ್ಗಿ ನನ್ನ 5 ಜನ ಕಾಡಿ ಬಿಟ್ಟು ರಾತ್ರಿ 10-30 ಸಮಯ ನಾನು ಹೋಗುವಾಗ ನನ್ನ ಓಡಿಸಿಕೊಂಡು ಬಂದು ನನ್ನ ಕಾಂಪೌಂಡ್ನಲ್ಲಿ ನನ್ನ ಮೆೇಲೆ ಕಲ್ಲು ಹಾಗೂ ಕತ್ತಿ ತಂದು ಕೊಲೆ ಮಾಡಲು ಬಂದಿರುತ್ತಾ ರೆ." Further stated that, " ನಾನು ಒಬ್ಬಳೇ ಮನೆಯಲ್ಲಿ ಇರುವುದು. ಇದು ನನ್ನ ತಂದೆ ಹಾಗೂ ಅಣ್ಣ ತಮ್ಮನಿಗೆ ನನ್ನ ಒಂದು ಆಸ್ತಿ ಕೊಟ್ಟಿರುತ್ತಾ ರೆ. ಅವರು ವಿದೇಶದಲ್ಲಿ ಇದ್ದಾ ರೆ. 11 ನಂಬರ್ ಸೈಟ್ ಅನಿಲ್ದು . ಮತ್ತು ನಂಜೇಗೌಡ ಎಂಬುವವನನ್ನು ನನ್ನ ಆಸ್ತಿಯಲ್ಲಿ ಕಾಂಪೌಂಡ್ ಮನೆ ಕಟ್ಟಿರುತ್ತಾ ರೆ. 1626-2020 ರಲ್ಲಿ ಅವನ ಮೇಲೆ ದಾವೆ ಕೋರ್ಟನಲ್ಲಿ ಹಾಕಿರುತ್ತೆೇನೆ. ಅದು ಕೇಸ್ ನೆಡೆದು ನನಗೆ ಪರಿಮೆ ಟ್ ಕೋರ್ಟ್ ಆರ್ಡರ್ ದೊರೆತಿದೆ." But in the plaint, there is no disclosure about case No.1626/2020. Moreover, the contents of Ex.P.10 reproduced supra in page No.27 of this judgment. In Ex.P.10, there is mention about OS No.4760/2010. In Ex.P.9, there is mention about OS No.1626/2020. Ex.P.9 shows that there is another suit filed in the year 2020 after filing of this 37 OS 199/2014-Judgment suit, that is OS No.1626/2020. But, nowhere in the plaint, there is disclosure about OS No.4760/10. In this document, there is no mention about who constructed such building by encroaching property of plaintiffs. As per this document, the plaintiffs got the relief of permanent injunction in OS No.4760/10. But, they have not produced main documents such as plaint, written statement and order, judgment and decree of that case. Moreover, plaintiffs have not disclosed about OS No.4760/2010 in the plaint though said suit is filed prior to filing of this suit in respect of suit schedule property regarding alleged illegal construction which shows that plaintiffs have suppressed the material facts and it gives presumption that this suit is barred by principle of Res-judicata, though it is suit for permanent injunction as its nature is recurrent, but here in this case subject matter is same construction. Including that, in Ex.P 1 and Ex.P 2, it shows that they are marked as exhibits in some other case but plaintiffs have not disclosed about that earlier case in the plaint of this case. Moreover as discussed above, the plaintiff already failed to prove the cause of action to this suit.
Sixthly, as per Ex.P 5 the sanctioned time under sanction plan is 15-06-2013 to 14-06-2015. Though in the plaint the date of 38 OS 199/2014-Judgment cause of action is mentioned as 18-12-2013 but to establish this cause of action, he filed Ex.P 4 without date in the document as discussed supra. Next to that Ex.P 8 in which the date of cause of action is shown as 20-08-2008 which is much prior to date of sanction plan. Ex.P 9 which is filed after the date of filing of this suit and Ex.P 10 dated 13-07-2015 which is also after the date of filing of this suit. If we construe it with liberal approach by considering paragraph 6(A) of the plaint, in this paragraph, it is stated as during the pendency of the suit defendant No.1 has constructed the building in brisk manner without leaving any set back lane to the plaintiffs' property and moreover, the defendant has encroached the plaintiffs' schedule A property and put up illegal construction and has constructed three floors. But, plaintiff has not produced any documents such as photographs of further construction of completed building with three floors which was constructed without leaving set back area. Ex.P 6 are the 2 photographs which show only fence and earth work, but not the constructed building. Moreover, such amendment of inserting paragraph 6(A) and prayer 1(a) made as per order dated 09-02- 2018 as per IA filed by the plaintiff under Order VI Rule 17 of CPC filed on 19-07-2017. As per Ex.P 5 the term of sanction plan expires on 14-06-2015 such amendment is made in 2017, but, plaintiffs 39 OS 199/2014-Judgment have not taken any caution and have not taken any pain to produce relevant documents such as photographs showing construction by violation which shows plaintiffs' failure to prove their case by proper documentary evidence.
Seventhly, as per the facts and circumstances of the case and as per above discussions on the documentary evidence of PW1, this Court finds that the ownership of defendant No.1 in respect of B schedule property is admitted fact. The plaintiffs have filed this suit for permanent injunction and mandatory injunction on the basis of their title over the suit schedule A property as per Ex.P 1. They have not produced any documents to show that they are in actual possession of plaint A schedule property. Hence, this Court relied upon the landmark judgment of Hon'ble Apex Court that is Anathula Sudhakar vs Buchi Reddy which gives guidelines pertaining to bare injunction suit and the relevant portion of said judgment is reproduced here under;
"Anathula Sudhakar vs P Buchi Reddy (2008) 4 SCC 594) in which guidelines given by Hon'ble Apex Court as;
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and 40 OS 199/2014-Judgment possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of 41 OS 199/2014-Judgment comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will inquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
55. Here, in this case plaintiffs have prayed for the relief of permanent injunction and mandatory injunction with main ingredient of title deed that is Ex.P 1 in which is only the physical possession handed over to the plaintiffs through the document as discussed supra. To establish their actual possession over the suit schedule property either by the plaintiffs or by PW 1, they have not produced the documents such as electricity bills, water bills or gas 42 OS 199/2014-Judgment bills etc. Totally plaintiffs failed to establish their possession over the plaint A schedule property accordingly, they have to pray for declaration of their title over the suit schedule A property as there is specific denial in the written statement of defendant No 1 about the title of the plaintiffs over the suit schedule property. Moreover, plaintiffs have not produced their original title deed too and they did not state as to in whose custody the original document of Ex.P.1 is lying. Therefore, this case is not maintainable without prayer for declaration of ownership, title and interest of the plaintiff over the plaint A schedule property.
56. It is well known that always documentary evidence prevail over the oral evidence, but to make it as complete judgment, this Court gone through the deposition of chief examination and cross examination of both PW 1 and DW 1.
57. In page No 1 of her cross examination PW 1 stated that she do not know the date of sale deed and further in paragraph 1 in page No 2 stated that, "ನಾನು ಕ್ರಯಪತ್ರಕ್ಕೆ ಸಾಕ್ಷಿದಾರಳಾಗಿ ಸಹಿ ಮಾಡಿಲ್ಲ ಎಂದರೆ ನಿಜ. ನಿಪಿ1 ರ ಕ್ರಯಪತ್ರದಲ್ಲಿ ನಮೂದಿಸಿರುವ ಆಸ್ತಿಯ ಖಾತಾ ನಂ.856-592 ರ ದಾಖಲೆಯನ್ನು ಹಾಜರುಪಡಿಸಿದ್ದೇವೆ. ಅಂತಹ ಖಾತೆಯನ್ನು ಸಿಎಂಸಿ ಯವರು ಕೊಟ್ಟಿರುತ್ತಾ ರೆ. ಅಂತಹ ಖಾತಾ 43 OS 199/2014-Judgment ದಾಖಲೆಯನ್ನು ಹಾಜರುಪಡಿಸಿಲ್ಲ ಮತ್ತು ಸುಳ್ಳು ಹೇಳುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಪಿ2 ರ ಕ್ರಯ ಪತ್ರದಲ್ಲಿ ತೋರಿಸಿರುವ ಸೈಟ್ ನಂ.9, 10, 15, ಮತ್ತು 16 ಸರ್ವೆ ನಂ.52ರಲ್ಲಿ ಬರುತ್ತದೆ. ಸದರಿ ಸರ್ವೆ ನಂಬರ್ ನಲ್ಲಿ ಇದ್ದ ಒಟ್ಟು ಜಮಿಾನಿನ ವಿಸ್ತೀರ್ಣ ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ಸದರಿ ಜವಿೂನಿನಲ್ಲಿ ಯಾವಾಗ ಲೇ ಔಟ್ ಮಾಡಲಾಯಿತು ಎಂಬುದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ. ಸದರಿ ಜಮಿಾನಿನ ಕನ್ವರ್ಷನ್ ಆಗಿದೆ. ಲೇ ಔಟ್ ಪ್ಲಾ ನ್ ನನ್ನು ಹಾಜರುಪಡಿಸಿದ್ದೇನೆ. ಕನ್ವರ್ಷನ್ ಅದೇಶವನ್ನು ಹಾಜರುಪಡಿಸಿದ್ದೇನೆ. ನಾವು ಅಂತಹ ದಾಖಲೆಗಳನ್ನು ಹಾಜರುಪಡಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ." But, PW 1 has not produced such documents and it is also shows that though she is GPA holder of plaintiffs but she herself admitted that she is not aware about the details about descriptions and documents and facts and circumstances of the case. Further, in paragraph 2 of page No 3 the PW 1 stated that, ,ದಾವಾ ಎ ಆಸ್ತಿಯ ದಕ್ಷಿಣಕ್ಕೆ ಎಷ್ಟು ಸೈಟುಗಳ ನಂತರ ರಸ್ತೆ ಬರುತ್ತದೆ ಎಂದರೆ 2 ಸೈಟುಗಳನ್ನು ಬಿಟ್ಟು ರಸ್ತೆ ಬರುತ್ತದೆ. ಅಂತಹ ರಸ್ತೆ ಲೇ ಔಟ್ಗೆ ಸೇರಿದೆ ಎಂದರೆ ನಿಜ. ದಾವಾ ಎ ಷೆಡ್ಯೂ ಲ್ಆಸ್ತಿಗೆ ನಿರ್ಧಿಷ್ಟವಾದ ಅಳತೆ ಇರಲಿಲ್ಲ ಆದ್ದರಿಂದ ಅಂತಹ ಅಳತೆಯನ್ನು ನಾವು ವಾದ ಪತ್ರದಲ್ಲಿ ತೋರಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಸದರಿ ನಮ್ಮ ಆಸ್ತಿಗೆ ಕಾಂಪೌಂಡ್ ಹಾಕಿದ್ದೇವೆ. ಆ ರೀತಿ ಕಾಂಪೌಂಡ್ ಹಾಕಿರುವ ಬಗ್ಗೆ ದಾಖಲೆಗಳು ಇವೆ." But, as discussed above in the plaint the measurements of the schedule property are not 44 OS 199/2014-Judgment mentioned. And as discussed supra PW 1, has not produced documents about the construction of compound wall and their possession over the suit schedule A property. Moreover, the Ex.P 6 photographs shows the fence not the compound wall.
58. Further, in page No 4 paragraph 3 the PW 1 stated that, "
ಖರೀದಿ ಪತ್ರ ನಮ್ಮ ತಂದೆ ಹೆಸರಲ್ಲಿ ಮಾಡಿಕೊಡುವಾಗ ಮಾರಪ್ಪನ ಹೆಸರಲ್ಲೇ ದಾವಾ ಆಸ್ತಿ ಪುರಸಭೆಯಲ್ಲಾ ಗಲೀ ನಗರ ಸಭೆಯಲ್ಲಾ ಗಲೀ ಅಥವಾ ಬಿಬಿಎಂಪಿಯಲ್ಲಾ ಗಲೀ ನಮೂದಾಗಿತ್ತೇ ಎಂದರೆ ನಮ್ಮ ತಂದೆ ಹೆಸರಲ್ಲಿ ಇತ್ತು ಎಂದು ಹೇಳುತ್ತಾ ರೆ. ಮಾರಪ್ಪ ಖರೀದಿ ಮಾಡಿಕೊಡುವ ಮೊದಲು ಆತನ ಹೆಸರಲ್ಲೇ 60 ಇಂಟು 80 ಅಡಿ ಜಾಗಾ ಇತ್ತು ಎಂದು ತೋರಿಸಲು ದಾಖಲೆ ಹಾಜರು ಪಡಿಸುವಿರಾ ಎಂದರೆ ಅದನ್ನು ಹಾಜರುಪಡಿಸಲು ಆಗುವುದಿಲ್ಲ ಎಂದು ಹೇಳುತ್ತಾ ರೆ. ಮಾರಪ್ಪ ಮಾಡಿಸಿದಂತಹ ಲೇಔಟ್ ಪ್ಲಾ ನ್ನ್ನು ಹಾಜರುಪಡಿಸಿದ್ದೇನೆ. ನಾನು ಹೇಳಿದ ಹಾಗೆ ಲೇಔಟ್ ಪ್ಲಾ ನ್ನ್ನು ಹಾಜರುಪಡಿಸಿಲ್ಲ ಆದರೂ ಸಹ ಳುಳ್ಳು ಹೇಳುತ್ತಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಸದರಿ ಪ್ರತಿವಾದಿ ತಾನು ಖರೀದಿ ಮಾಡಿದಂತಹ 30 ಇಂಟು 40 ಅಡಿ ಜಾಗದಲ್ಲಿ ಮಾತ್ರ ಕಟ್ಟಡ ಕಟ್ಟಿಕೊಂಡಿದ್ದು ನಮ್ಮ ಜಾಗಾದಲ್ಲಿ ಒಂದು ಇಂಚು ಆತ ಒತ್ತು ವರಿ ಮಾಡಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ." But PW 1 has not produced such layout plan.
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59. In paragraph 3 of page No 5 it is stated by the PW 1 that, "ನಿಪಿ6 ರಲ್ಲಿ ಕಾಣುವಂತಹ ತಂತಿ ಬೇಲಿ ಪಕ್ಕದಲ್ಲಿರುವಂತಹ ಬಿಳಿ ಬಣ್ಣ ಹಚ್ಚಿದ ಕಟ್ಟಡ ನಾವೇ ಕಟ್ಟಿದ್ದು ಎಂದರೆ ಹೌದು. ಆ ನಿಪಿ6ರಲ್ಲಿ ಕಾಣುವಂತಹ ತಂತಿ ಬೇಲಿಯೇ ನಮ್ಮ ಜಾಗದ ಬೌಂಡರಿ ಎಂದರೆ ಹೌದು. ನಾವು ಕಟ್ಟಡ ಕಟ್ಟು ವಾಗ ಕಾನೂನು ಪ್ರಕಾರ ಸೆಟ್ಬ್ಯಾ ಕ್ಬಿಟ್ಟು ಕಟ್ಟಿದ್ದೇನೆ. ಆ ರೀತಿ ಕಟ್ಟಡ ಕಟ್ಟಲು ನಾನು ಮಹಾನಗರ ಪಾಲಿಕೆಯಿಂದ ಯಾವುದೇ ಪ್ಲಾ ನನ್ನು ಪಡೆದಿಲ್ಲ ನಾನು ಚಿಕ್ಕದಾಗಿ ಕಟ್ಟಡ ಕಟ್ಟಿಕೊಂಡಿದ್ದೇನೆ ಎಂದು ಸಾಕ್ಷಿ ನುಡಿಯತ್ತಾ ರೆ." Then it is admitted by the PW 1 that they themselves constructed a building without permission and sanction of BBMP. Be that as it may.
60. Further, in paragraph 4 of page No 5 PW 1 stated that, "
ನಿಪಿ 3 ರಲ್ಲಿ ನಮ್ಮ ಜಾಗ 60 ಇಂಟು 80 ಅಡಿ ಇದೆ ಎಂದು ಎಲ್ಲಿಯೂ ನಮೂದಾಗಿಲ್ಲ. ನಿಪಿ8 ಕ್ಕೂ ಮತ್ತು ಪ್ರತಿವಾದಿಗೂ ಯಾವುದೇ ಸಂಬಂಧ ಇಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಿಪಿ9 ರ ಮೇಲೆ ಪೋಲಿಸರು ಏನೆಲ್ಲಾ ಕ್ರಮ ಕೈಗೊಂಡಿದ್ದಾ ರೆ ಎಂದು ತೋರಿಸಲು ದಾಖಲೆ ಹಾಜರುಪಡಿಸಿಲ್ಲ. ಆರೋಗ್ಯ ಸರಿ ಇಲ್ಲದ ಕಾರಣ ಪಡೆಯಲಾಗಲಿಲ್ಲ. ನಿಪಿ9ರಲ್ಲಿ ಹೇಳಿದ ಹಾಗೆ ಯಾವುದೇ ಘಟನೆಯಾಗಿಲ್ಲ ಈ ಪ್ರಕರಣಕ್ಕಾ ಗಿ ಸೃಷ್ಟಿ ಮಾಡಿ ತಂದು ಹಾಜರುಪಡಿಸಿದ್ದೇನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ." In this regard already discussed above that, the said documents are connected to different person and she has not produced documents pertaining 46 OS 199/2014-Judgment to previous cases filed by the plaintiffs which shows material suppression by the plaintiff.
61. When PW 1 herself failed to prove the case of the plaintiff through her documentary and oral evidence, then discussion on the oral evidence of DW 1 is not necessary as there is no counter claim and mainly plaintiffs have to prove Issue Nos.1 and 2 and Additional Issue No 1 and as supra PW 1 failed to prove the same.
62. Therefore, as per the facts and circumstances of the case and elaborate discussions above, this Court is of the considered opinion that though plaintiffs have produced Ex.P 1 that is certified copy of their title deed but they have not produced the original sale deed and did not mention as to it is in whose custody. As they filed this suit based on title deed and they have not produced any documents to establish their possession therefore, this suit is not maintainable without prayer for declaration of ownership and title of the plaintiff over the plaint A schedule property and accordingly plaintiffs have failed to prove their right, title and possession over the suit schedule property. The plaintiffs have not produced any documents to show the alleged illegal construction than Ex.P 5 and 6 and did not bring the authorised persons of BBMP to the witness box and did not take any pain to measure the property by proper authority to establish that 47 OS 199/2014-Judgment defendant No.1 constructed a building without leaving set back area and there is material suppression about measurements and previous cases in the plaint and accordingly, plaintiffs failed to prove the alleged construction made by defendant No.1 as illegal by encroaching the suit schedule property of the plaintiffs without leaving set back area. Later plaintiffs amended the plaint by inserting prayer 1(a) mentioning the measurement of plaint A schedule property and alleged encroachment by defendant No.1 during the pendency of the suit, but as supra they failed to prove the same as they (plaintiffs and PW 1) have not produced any documents about such encroachment by way of photographs or evidence of proper authorities or through her oral evidence of PW
1. Hence, this Court answers Issue Nos.1, 2 and Additional Issue No 1 in the Negative.
63. Additional Issue No 3, 4 and 5 :- As in these three issues burden lies on the defendant No 1, hence, they are taken up together here under;
The question of limitation pertaining to suit for permanent injunction and mandatory injunction are concerned, there is no separate provision or Article in Limitation Act and accordingly, Article 113 of Limitation Act has to be relied upon which runs as; PART X.--SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD 48 OS 199/2014-Judgment
113. Any suit for which no Three years. When the right to sue period of limitation is accrues.
provided elsewhere in this Schedule.
64. As discussed supra, as per plaint paragraph 6 and 7 the cause of action for the relief of permanent injunction arose on 18-12-2013. But in the connected document Ex.4, the place for date of event remained blank and the said document discloses the name of Raghavendra who is not the defendant No.1. Another document produced by the plaintiffs to establish cause of action is Ex.P.8 which shows the date of cause of action as 20-01-2008. As per order sheet this suit is filed on 04-01-2014 after 6 years from the date shown in Ex.P.8. Further, Ex.P.8 is also not connected to defendant No 1. Next to that the prayer 1(a) inserted to the plaint as per IA dated 19-07-2017. This amendment is based on same cause of action as per paragraph 6(A). Then from 04-01-2014 that is the date of filing of the suit till 19-07-2017 the date of filing of IA for amendment three years have lapsed. Then, though there is ambiguity about the date of cause of action to prayer 1, but, regarding prayer 1(a) is concerned, on the face apparent itself that this suit is barred by limitation as the said prayer is made beyond 49 OS 199/2014-Judgment 3 years from the date of right to sue accrues. Including that, the plaintiffs failed top prove it as subsequent even, though it is stated so in paragraph 6(A).
65. Next to that, regarding court fee is concerned, the plaintiffs have paid Court fee of Rs.13,485/- on 13-06-2018 and further there is no objection filed by defendant No.1 regarding the fresh valuation slip and nothing is elicited in this regard in cross examination of PW 1 and defendant has not produced any document pertaining to present value of suit schedule property and B schedule property, therefore it is concluded that the Court fee paid by the plaintiffs is proper.
66. Regarding Additional Issue No.5 is concerned, the plaintiffs themselves failed to prove their case. There is no counter claim by defendant No 1 to prove that his house is constructed in accordance with BBMP by laws and by observing norms. Moreover, the BBMP is not party to this suit to conclude about the construction of the defendant as pleaded in his written statement. Hence, the Additional Issue No.5 is not necessary to adjudicate this suit and accordingly the said issue is deleted by invoking power under Order XIV Rule 5 of CPC which is reproduced here under;
50
OS 199/2014-Judgment "[5. Power to amend and strike out, issues.--
(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.]"
67. Therefore, as per the facts and circumstances of the case and above discussions, this Court is of the opinion that this suit is barred by limitation period for filing of this suit and court fee paid is sufficient and the "Additional Issue No.5" is not necessary for proper adjudication of justice. Accordingly, this Court answers Additional Issue No.3 in the Affirmative, Additional Issue No.4 in the Negative and Additional Issue No.5 is deleted.
68. Issue No 3 and Addl.Issue No 2 : As per facts and circumstances of the case and above reasons and as per answers to above issues this Court is of the considered opinion that the plaintiffs are not entitled for the reliefs as sought for by way of permanent injunction and mandatory injunction and accordingly, this Court answers Issue No.3 and Addl.Issue No.2 in the Negative. 51
OS 199/2014-Judgment
69. Issue No 4 : For the forgoing reasons, the plaintiffs are not entitled to get reliefs as prayed and this suit is liable to be dismissed and accordingly, this Court proceed to pass the following;
ORDER The suit filed by the plaintiffs is hereby dismissed. No order as to costs.
Draw decree accordingly.
(Dictated to the Senior Sheristedar on computer, typed by him, after correction, signed and pronounced by me in Open Court on 04.11.2024) (SMT. JYOTHSNA D.,) XVI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU(CCH12) SCHEDULE A PROPERTY All the part and parcel of the proeprty bearing property No.9, 10, 15 & 16, New Khatha No.936/9, 10, 15 and 16/592/918, 1 st Main, 4th Cross, Marappa Garden, Rajarajeshwarinagar, Ward No.160, Halagevaderahalli, Bangalore 560 085, bounded on:
East by : 25 Feet Road
West by : 25 Feet Road
North by : Site Nos.8 and 171
South by : Site No.11 and 141
In the Northern side and Southern side, to rectify as follows: North by : Site No.8 and 17 South by : Site No.11 and 14 52
OS 199/2014-Judgment SCHEDULE B PROPERTY All the part and parcel of the property bearing property No.14, 1 st Main, 4th Cross, Marappa Garden, Rajarajeshwarinagar, Ward No.160, Halagevaderahalli, Bengaluru 560 085, bounded on :
East by : Road
West by : Site No.11
North by : Site No.15
South by : Site No.13
ANNEXURE
List of witnesses examined for the plaintiff. PW 1 - G.R. Pankaja @ Parimala List of witnesses examined for the defendants. DW 1 - Anil Kumar V., List of documents marked for the plaintiff.
Ex.P.1 Certified Copy of Sale Deed
Ex.P.2 Certified copy of Khatha Certificate
Ex.P.3 Certified copy of Khatha Certificate
Ex.P.4 Copy of Complaint dated 18.11.2013
Ex.P.5 Copy of Sanctioned Plan
Ex.P.6 and Four Phtographs and CD
P.7
Ex.P.8 Certified copy of FIR in Cr.No.15/2008 of Rajarajeshwari Nagar PS
Ex.P.9 Certified copy of complaint filed by PW1
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Ex.P.10 Letter dated 13.07.2015 by PW 1 to BBMP List of documents marked for the defendants Ex.D.1 Certified copy of Sale Deed dated 28.06.2007 executed by Parvathi in favour of Anil Kumar obtained through online Ex.D.2 Certified copy of Sale deed dated 04.05.2005 in the name of Parvathi obtained through online Ex.D.3 Khatha Certificate Ex.D.4 Khatha Extract Ex.D.5 Survey Sketch of BBMP in respect of Site No.14 (SMT. JYOTHSNA D.,) XVI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH12) 54 OS 199/2014-Judgment (Judgment pronounced in Open Court vide separate Judgment. Order portion reads as under) ORDER The suit filed by the plaintiffs is hereby dismissed.
No order as to costs.
Draw decree accordingly.
XVI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU(CCH12) 55