Bangalore District Court
Dwarakanath G vs Rajeswari S on 7 January, 2025
KABC010198572018
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI. B.DASARATHA., B.A., LL.B.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 7th DAY OF JANUARY, 2025
O.S.No.5249/2018
Plaintiff: Sri. G.Dwarakanath,
S/o. Late S.Duraiswami Ayyangar,
Aged bout 83 years,
# 1260, 32nd 'G' Cross,
4th 'T' Block, Jayanagar,
Bengaluru - 560 041.
(Since deceased by his LRs)
1(a). Smt. Malathi Dwarakanath,
W/o. Late G.Dwarakanath,
Aged about 78 years.
1(b). Smt. Vijayashri Dwarakanath,
D/o. Late G.Dwarakanath,
Aged about 45 years.
2 O.S.No.5249/2018
1(c). Kum. Vanishri Dwarakanath,
D/o. Late G.Dwarakanath,
Aged about 40 years,
All are residents of No.1260, 32 nd 'G'
Cross, 4th 'T' Block, Jayanagar,
Bengaluru - 560 011.
(By Adv. Sri. A.M.Vijay)
Vs.
Defendant: Smt. Rajeswari.S,
W/o. Sri.N.Lakshman,
Aged about 58 years,
No.1261, 32nd 'G' Cross,
4th 'T' Block, Jayanagar,
Bengaluru - 560 041.
(By Adv. Sri. K.N.Sanjay Kumar)
Date of institution of the suit : 20.07.2018
Nature of the suit : Injunction Suit
Date of commencement of : 30.01.2024
Recording of the evidence
Date on which the Judgment : 07.01.2025
was pronounced
Total Duration : Years Months Days
06 05 17
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
3 O.S.No.5249/2018
JUDGMENT
This is a suit filed by the plaintiff seeking judgment and decree of permanent injunction and also mandatory injunction.
2. The brief averments of the plaint is as follows: - The plaintiff contends that, he is the absolute owner and in possession of suit schedule property. The suit schedule property was allotted to the plaintiff by Bangalore Development Authority the year 1963. From the date of allotment, the plaintiff has been in possession and enjoyment of suit schedule property and constructed the residential building during 1967- 69 and same continues to be in existence till date. The plaintiff has also obtained the Khatha and has been paying tax to the Government/BBMP.
2(a). The defendant is the owner of adjacent property bearing No.1261, situated on the western side of suit schedule property. The property of the defendant measures East to West:
40 feet and North to South: 65 feet. The defendant demolished the existing building, during the year 2017. The defendant engaged her workers on 18/01/2018. The workers of defendant at the instructions of defendant demolished and damaged a portion of the compound wall on the western side of suit schedule property and also lumber shed wall existing on the north-western corner of suit schedule property. Due to the old age of plaintiff and his wife, they unable to prevent the 4 O.S.No.5249/2018 defendant and her workmen from carrying out the said reckless acts of demolition and damage to portions of the suit schedule property. The plaintiff instructed his brother to lodge police complaint in this regard.
2(b). The plaintiff further contends that, once again during the early morning hours on 10/02/2018, the workers engaged by defendant abruptly began the work of demolition of some more portions of the compound wall and also the lumber shed wall on the western side of the suit schedule property. The brother of the plaintiff in this regard has lodged a police complaint. The plaintiff and his brother had also complained to BBMP with regard to the encroachment and illegal acts of demolition carried out by the defendant and her husband. The BBMP issued notice to the plaintiff on 17/02/2018, calling for joint inspection of suit schedule property as well as the property of defendant.
2(c). Though the plaintiff agitated the matter of illegal demolition and attempts of encroachment by defendant to the police as well as muncipal authority, during the March 2018, defendant hurriedly began constructing a concrete ramp leading to the defendent's gate to the main door i.e., entrance to the house building. This concrete ramp and staircase have been constructed right over the compound wall on the western side of the schedule property i.e., right behind the garage portion. The construction of said concrete ramp as well as staircase has 5 O.S.No.5249/2018 been made despite the vehement protests made by the plaintiff and his family. The plaintiff has repeatedly demanded and called upon the defendant to desist from making any encroachment or from damaging any portion of the compound wall existing on the western boundary of the suit schedule property.
2(d). The plaintiff contends that, subsequently as there was inaction on the part of the Municipal Authority, the plaintiff filed a W.P.No.13338/2018 before the Hon'ble High Court of Karnataka seeking appropriate reliefs against the BBMP and the jurisdictional police. The Hon'ble High Court on 28/03/2018 dismissed the petition by granting liberty to the plaintiff to initiate appropriate legal proceedings in accordance with law. However, there was complete inaction on the part of the Authorities to prevent the commission of highhanded and illegal acts by the defendant.
2(e). The plaintiff contends that, he has constructed the compound wall along western boundary well within the area allotted and conveyed in his favour by the BDA. The construction of the residential building within the suit schedule property, including the garage portion, was completed by him way back during 1967-69 itself. Neither defendant's predecessor-in-title nor the defendant herself had raised any objection or demur about the existence of the entire compound wall and the lumber shed along western boundary of suit 6 O.S.No.5249/2018 schedule property. There was no quarrel or claim made over any portion of the schedule property's western boundary, as there was no manner of doubt about the plaintiffs possessory right, title and interest over the said property. Such being the case, the defendant is not justified and hence precluded from making any legal claims over any portion of the western boundary of the schedule property. The defendant has no manner of right, title or interest over any portion of the suit schedule property, including the western side compound wall constructed by the plaintiff.
2(f). The defendant has committed gross violations of the approved building plan as well as the Municipal Bye-laws and in pursuance of such illegal acts, the defendant is attempting to knock off the area along the western boundary of the suit schedule property. The defendant is liable to demolish that portion of concrete ramp and staircase which protrudes into the compound wall on the western boundary of the suit schedule property. The defendant has taken an undue advantage of the fragile health and old age of plaintiff and his wife and has committed the aforementioned illegal and acts of intimidation. The defendant enjoys immense clout with the concerned Authorities and has thus far succeeded in frustrating the plaintiff's efforts to prevent her brazen, illegal acts.
2(g). The plaintiff contends that, subsequent to filing of the suit, the plaintiff had challenged the Order on I.A.No.2 7 O.S.No.5249/2018 passeed by this court before the Hon'ble High Court in W.P.No.200095/2009. The Hon'ble High Court on 20.01.2020, permitted the plaintiff to restore/reconstruct the demolished portion of compound wall at his cost. The plaintiff was eager to complete the reconstruction work, but was unable to do so immediately thereafter for the reasons beyond his control in view of the onset of the Covid Pandemic and lock down since March, 2020. The plaintiff during July, 2020 had placed cement holllow blocks all along the western boundary where the defendant had demolished the compound wall. At this point, the health condition of plaintiff deteriorated and this left his family members severely worried as his health was fragile. The defendant took advantage of the above precarious situation of the plaintiff and his family members and suddenly on 09.09.2021, commenced construction of a new wall in the very same place where he had previously demolished the plaintiff's compound wall by beginning to construct retaining wall just beneath the ramp and staircase constructed by him prior to the institution of this suit. The defendant by constructing the said wall newly, unilaterally made encroachments inside the boundary of plaintiff with the motive of erasing all traces and evidence about the existence of erstwhile compound wall and boundary line as it existed since 1967-68. Therefore, the defendant is liable to demolish the compound wall constructed by him during September 2021 at his cost, so that boundary line as it existed since 1967-68 is restored. Hence, this suit for permanent injunction and also for mandatory injunction.
8 O.S.No.5249/2018Accordingly, the plaintiff prays to decree the suit at the cost of defendant.
3. The brief averments of written statement of defendant is as follows: -
The defendant is the lawful owner of immovable property bearing site No.19 (old No.1261), situated at Jayanagar, Bangalore, measuring East to West: 40 feet and North to South:
65 feet. The defendant ever since the date of purchase on 30/04/2003 has been in possession and enjoyment of the said property. The said property was allotted to one H.S.Subramanya Raje Urs by the then CITB . The wife of H.S.Subramanya Raje Urs sold the said property to the defendant through absolute sale deed dated 26/04/2003.
Thereafter, the defendant got the Khatha changed to his name and has been paying the Muncipal Authorities.
3(a). The plaintiff is residing at suit schedule property adjoining compound at site No.1260 on the left side of defendant's site. The defendant obtained license from BBMP, but demolishing of existing old residential building and for construction of residential building. The defendant by obtaining license from BBMP started to demolish the said existing old building, the compound wall built on the left side within the premises of defendant's compound was collapsed at the time of constructing the retain wall within the boundary lines of the property of the defendant. The said compound wall was not 9 O.S.No.5249/2018 common compound wall, as the same was built exclusively within the compound premises of the defendant's property.
3(b). The defendant denied that on 18/01/2018, the workers engaged by the defendant, at her instruction, damaging and demolishing a portion of the compound wall on the western side of the suit schedule property. The defendant also denied that on 10/02/2018, the workers engaged by the defendant abruptly demolishing some portion of the compound wall and also lumber shed wall on the western side of the suit schedule property. The defendant contends that, when the defendant was demolishing the old residential building, the compound wall built on left side within the compound of defendant was collapsed and as such, the defendant has not demolished the said compound wall. The defendant admitted lodging of police complaint by the plaintiff. The defendant also admitted that Assistance Executive Engineer, BBMP, Jayanagar Sub- Division, Bangalore issued notice to this defendant and to the plaintiff requesting them to be present on 26/02/2018 at 11 AM and to co-operate with him for the purpose of measurement of these two sites. The said Assistance Executive Engineer, BBMP visited the spot and issued a letter dated 02/03/2018, enclosing the measurement sketch of both sites with its actual measurements, specifying that left side compound wall is inside the site of the defendant. It is also stated in the said report that, the plaintiff owner of the left side site No.1260 had refused to sign the measurement plan, even though he was present. The 10 O.S.No.5249/2018 copy of this measurement report along with the measurement sketch prepared at the spot was handed over to Inspector of Police, Tilak Nagar Police Station. The Inspector of Police after perusing the said report informed the plaintiff that defendant had not encroached the premises of the plaintiff and has not committed any wrong doing as alleged in the complaint. The matter was closed by the police. In view of the measurement report submitted by the Assistant Executive Engineer, BBMP, the compound wall was within the boundary of defendant's site and there is no wrongful act of any sort as alleged to have been committed by defendant.
3(c). The defendant denied during March 2018, she had hurriedly began to construct a concrete ramp leading from the defendant's gate to the main door i.e., entrance to the house building and further denied that construction of the said concrete ramp as well as staircase has been made despite the resistance made by the plaintiff and his family. The defendant admitted the filing of Writ Petition by the plaintiff. The said Writ Petition was dismissed with observation to the petitioner/plaintiff to resort to the appropriate proceedings in accordance with law. The photographs produced by this defendant's clearly establishes that construction of the building including the compound wall on left side is situated inside the property belonging to the defendant. The plaintiff has built a concrete garage in front of touching to the compound on the left side of the property belonging to this defendant. The plaintiff 11 O.S.No.5249/2018 unauthorisedly and in gross violation of Municipal Bye-law. On these grounds, prays for dismissal of the suit as not maintainable.
4. On the basis of the pleadings of the parties, my predecessors-in-office have framed the following issues and additional issues for determination:-
ISSUES
1. Whether the plaintiff proves that defendant demolished a portion of compound wall and lumber shed wall on the western side of suit schedule property?
2. Whether the plaintiff proves that defendant illegally constructed concrete ramp and staircase on the western boundary of the suit schedule property?
3. Whether the plaintiff is entitle for the relief of mandatory injunction as sought for?
4. Whether the plaintiff is entitle for the relief of permanent injunction as sought for?
5. Whether the plaintiff is entitle for the relief as claimed?
6. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff proves that during the pendency of the suit, the defendant erected the compound wall by encroaching the portion of the suit schedule property?
12 O.S.No.5249/20182. Whether the plaintiff is entitled for the relief of Mandatory Injunction as prayed for?
5. After settlement of issues, the plaintiff No.1(b) i.e., legal heir of plaintiff has entered into the witness box as PW-1 and Ex.P.1 to Ex.P.33 were marked through her. On behalf of the defendant, the Special Power of Attorney Holder of defendant by name Sri.N.Lakshman has entered into the witness box as DW-1 and Ex.D.1 to Ex.D.18 were marked through him.
6. Heard the arguments of the learned counsel for plaintiff and defendant.
7. My findings on the above issues are as under:-
Issue No.1: In the negative.
Issue No.2: In the negative.
Issue No.3: In the negative.
Issue No.4: In the negative.
Issue No.5: In the negative.
Addl. Issue No.1: In the negative.
Addl. Issue No.2: In the negative.
Issue No.6: As per final order below
for the following:
REASONS
8. Issue No.1 and 2 & Additional Issue No.1 : - Since these issues involves common discussion, interlinked with each other, hence in order to avoid repetition of facts and evidence, these issues are taken together for consideration.
13 O.S.No.5249/20189. The ownership of the plaintiff over the suit schedule property is not in dispute. The ownership of the defendant over the property bearing No.1261, situated on the western side of the suit schedule property is also not in dispute. It is admitted fact that defendant is the owner of the adjacent property of the plaintiff bearing No.1261, situated on the western side of suit schedule property, measuring East to West: 40 feet and North to South: 65 feet.
10. It is the case of the plaintiff that defendant demolished the existing building situated on her property, during the year 2017. The workers of defendant, under the instructions of the defendant on 18/01/2018, damaged and demolished a portion of the compound wall on the western side of the suit schedule property and also the lumber shed wall existing in the north-western corner of the suit schedule property.
11. It is also the case of the plaintiff that once again during the early morning hours on 10/02/2018, the workers engaged by defendant abruptly began the work of demolition of some more portions of the compound wall and also the lumber shed wall on the western side of suit schedule property. The brother of the plaintiff lodged police complaint on both occasions against defendant. It is also the case of the plaintiff that he had also lodged complaint to the BBMP with regard to the encroachment and illegal acts of demolition carried out by 14 O.S.No.5249/2018 the defendant and her husband. The BBMP on receipt of the complaint issued notice to the plaintiff on 17/02/2018 calling for joint inspection of suit schedule property and as well as the property of defendant. The defendant hurriedly in the March of 2018, began to construct a concrete ramp leading from defendant's gate to the main door i.e., entrance to the house building. The concrete ramp and staircase have been constructed right over the compound wall on the western side of suit schedule property i.e., right behind the garage portion. The construction of the said concrete ramp as well as staircase has been made despite the vehement protest made by the plaintiff and his family.
12. It is further case of the plaintiff that he has constructed a compound wall along western boundary well within the area allotted and conveyed in his favour by the BDA. The construction of the residential building within the suit schedule property, including the garage portion, was completed by way back during the year 1967-68 itself. The predecessor in title of the defendant nor the defendant raised any objection or demur about the existence of the entire compound wall and the lumber shed along the western boundary of the suit schedule property. There was no quarrel or claim made on any portion of the suit schedule property's western boundary. There was no any manner of doubt about the plaintiff's possessory right, title and interest over the said western side boundary of the plaintiff. Such being the case, the defendant is not justified and hence 15 O.S.No.5249/2018 precluded from making any legal claims over any portion of the western boundary of the suit schedule property. The defendant has no manner of right, title and interest over any portion of the suit schedule property, including the western side compound wall constructed by the plaintiff. Further, plaintiff has also pleaded that defendant is liable to demolish the portion of concrete ramp and staircase which protrudes into the compound wall area on the western boundary of suit schedule property.
13. The defendant in the written statement admitted that plaintiff residing at the suit schedule property adjoining compound at site No.1260 and left side of defendant's site. The defendant admitted that by demolishing the old building, she had obtained the sanctioned plan from BBMP. The defendant admitted that after obtaining the license from BBMP, she started to demolish the said existing old building and while demolishing existing old building, the compound wall built on the left side within the premise of defendant's compound was collapsed at the time of constructing the retain wall within the boundary lines of the property of defendant. The said compound wall was not common compound wall, as the same was built exclusively within the compound premises of defendant's property.
14. The defendant denied the case of plaintiff that on 18/01/2018, the workers engaged by her, at the instructions of 16 O.S.No.5249/2018 defendant demolished and damaged a portion of the compound wall on the western side of suit schedule property. The defendant also denied that on 10/02/2018, the workers engaged by her abruptly began the work of demolition of some more portion of the compound wall and also the lumber shed wall on the western side of suit schedule property. The defendant in the written statement has stated that, when she was demolishing the old residential building, the compound wall built on the side within the compound of defendant was collapsed and as such, the defendant has not demolished the said compound wall as stated by the plaintiff. It is also the case of defendant that, she had requested the BBMP Engineer to inspect and conduct measurement of the premises and find out where exactly the compound wall was situated. Accordingly, the Assistant Executive Engineer, BBMP, gave notice to the plaintiff and defendant to be present on 26/02/2018, at 11 AM and to co-operate with him for the purpose of measurement of both the properties. The said Assistant Executive Engineer, BBMP got measured and also prepared the sketch of both side and specified that the left side compound wall is inside the site of the defendant. The Assistant Executive Engineer in his report has stated that plaintiff who is the owner of left side site No.1260 , refused to sign the measurement plan. It is the case of defendant in view of the measurement report submitted by the concerned Assistant Executive Engineer, the compound wall was within the boundary of defendant's site and there is no 17 O.S.No.5249/2018 wrongful act of any sort is alleged to have been committed by the defendant.
15. The defendant further denied that during the March 2018, she had hurriedly began to construct a concrete ramp leading from defendant's gate to the main door i.e., entrance to the house building. But, according to the defendant, said concrete ramp and the staircase steps built on the left side is strictly in accordance with the sanctioned plan.
16. During the pendency of the suit, plaintiff died. After the death of plaintiff, his legal representatives were brought on record. The plaintiff No.1(b) is the daughter of deceased plaintiff is examined as PW-1. PW-1 has filed an affidavit evidence in lieu of examination in chief. PW-1 in his affidavit evidence has reiterated the averments of plaint. PW-1 has produced Ex.P.1 to P.33 documents in support of her case.
17. The husband of defendant/ Special Power of Attorney Holder of defendant is examined as DW-1. The defendant has also produced Ex.D.1 to D.18 documents in support of her case. But the plaintiff and defendant have adduced evidence and counter evidence to the respective cases.
18. PW-1 in the cross examination admitted that the property of defendant is situated on the western side of suit schedule property. PW-1 has stated that the defendant has 18 O.S.No.5249/2018 violated sanctioned plan issued by the BBMP and constructed the building. PW-1 admitted the sanctioned plan/license obtained by the defendant for construction of building by demolishing the old structure on her property.
19. PW-1 during the course of cross-examination denied the suggestion that, the defendant had constructed the building as per the plan issued by the BBMP. PW-1 also denied the suggestion that compound wall existed towards eastern side of defendant's property is situated within the property of defendant. PW-1 has stated in the cross examination that, the defendant has encroached 6-7 inches of their property towards the western side and constructed the compound wall. According to PW-1, the defendant towards the western side of suit schedule property encroached about 6-7 inches of property of plaintiff and put up compound wall. It is also clearly admitted by PW-1 that, the dispute between herself and defendant is with regard to compound wall constructed towards the western side of her property in respect of 6-7 inches of property. The admission made by PW-1 in the cross examination discloses that the defendant has already constructed the compound wall towards the western side of the property. According to the plaintiff, the defendant has encroached 6-7 inches of their property.
20. It is admitted by PW-1 that, the dispute between herself and defendant went up to the police station and also to 19 O.S.No.5249/2018 the BBMP. It is admitted by PW-1 that, the defendant had filed an application on 08/02/2018, requesting them to make spot inspection and measure the properties. It is also admitted by PW-1 that as per the application of defendant, the BBMP Authorities issued a notice to both the parties to be present on 26/02/2018 at the spot. It is also admitted by PW-1 that Assistant Executive Engineer of BBMP visited the spot and got measured both the properties and prepared a sketch.
21. PW-1 in the cross examination admitted that, as per the sale deed, her property towards East to West measures only 40 feet. But, PW-1 at another juncture admitted that the property measures East to West 40 feet and 11 inches. This admission of PW-1 goes to show that she is claiming 11 inches more on the western side of her property. PW-1 has not admitted the measurement noted by Assistant Executive Engineer that her property towards southern side East to West measures 12.28 inches and towards Northern side East to West measures 12.38 inches. Interestingly, PW-1 is not denying the sketch prepared by the Assistant Executive Engineer of BBMP on 02/03/2018. PW-1 has admitted that, she refused to sign the report prepared by the Assistant Executive Engineer at the spot and she has stated that, she had not accepted the report prepared by the Assistant Executive Engineer of BBMP. But she has admitted that, the Assistant Executive Engineer got measured both the properties. It is also clearly admitted by her that, she has not challenged the report and sketch prepared by 20 O.S.No.5249/2018 the Assistant Executive Engineer of BBMP anywhere. It is also admitted by PW-1 that, the Hon'ble High Court has opined that plaintiff instead of approaching the proper forum has approached the Hon'ble High Court. The plaintiff has not placed any material to prove that she had challenged the report prepared by the Assistant Executive Engineer of BBMP.
22. In the cross-examination of PW-1 it is elicited by the defendant that, as per the sale deed and possession certificate, her property measures only 40 feet by East to West and 65 feet by North to South. But, as per the case of PW-1 on the basis of survey records her property measures 40.11 inches towards East-West. This admission goes to show that plaintiff is claiming 11 inches more on western side of her property. This admission goes to show that plaintiff is claiming 11 inches more towards western side of his property and claiming excess property towards the property of the defendant as per Ex.P.3 sketch on western side of her property. Admittedly, as per the sale deed i.e., documents executed by BDA in favour of the plaintiff, the plaintiff was allotted property measuring 40 feet towards East to West and 65 feet towards North-South. The plaintiff has not explained as to how he acquired 11 inches more property by East to West on his western side of his site. No reliance can be placed on Ex.P.3, because the said measurement is not in consonance with the measurement mentioned in Ex.P.1(a) and in Ex.P.4. When the BDA as per Ex.P.1 sale deed and as per Ex.P.4 Allotment Letter allotted 21 O.S.No.5249/2018 property measuring 40 feet towards East to West and North to South 65 feet, the plaintiff claiming excess towards the defendant's property on the western side as per Ex.P.3 sketch is not proper and not acceptable.
23. PW-1 in the cross examination contended that the ramp constructed by the defendant is not situated in her property. PW-1 does not know the measurement of ramp and staircase of the defendant. It is also admitted by PW-1 that, the defendant has constructed a ramp and staircase from stilt floor to ground floor. It is clearly admitted by PW.1 that, nowhere in the pleading/plaint she has pleaded that defendant has encroached the property belonged to the plaintiff. It is also admitted by the plaintiff that, she has not given the boundaries of the property encroached by defendant. PW-1 further admitted in the cross examination that she has not reconstructed the wall as per the Order of the Hon'ble High Court. PW-1 also admitted that the defendant in order to reach her main door situated towards eastern side of her property has constructed ramp and staircase from stilt to ground floor on southern side. There is no material placed by the plaintiff that said the ramp and staircase is constructed by encroaching the property of plaintiff. As already discussed, there is no pleading in this regard in the plaint. It is also admitted by her that, she has already lodged a complaint to the BBMP that the defendant has encroached the property belonged to plaintiff and constructed the building. The plaintiff quite contrary to the 22 O.S.No.5249/2018 pleadings, has deposed in the evidence that the defendant has encroached the property belonged to plaintiff and constructed the ramp and staircase. In the pleadings, plaintiff has pleaded that portion of the concrete ramp and staircase protruded into the compound wall area on the western boundary of the suit schedule property.
24. DW-1 is the husband of defendant and Special Power of Attorney Holder of defendant. Since DW-1 being the husband of defendant, no fault can be found for non- examination of defendant and also no doubt can be placed regarding the personal knowledge of DW-1 regarding the case.
25. In the cross-examination of DW-1 plaintiff has elicited that the defendant has not produced title deeds of her property. In this case, there is no dispute regarding the title of the plaintiff and defendant with respect to their properties. It is admitted by PW-1 that the dispute is with regard to the western compound wall of the property, situated between the property of plaintiff and defendant. Hence, non-production of title deeds with regard to the property of defendant is also no fatal to the case of defendant.
26. DW-1 as per Ex.D.8 the true copy of application given to BBMP. In Ex.D.8, DW-1 has requested for measurement of the property by personally visiting the site. In this case, PW-1 has not denied the measurement made by Assistant Executive Engineer of the BBMP of both properties.
23 O.S.No.5249/2018During the course of cross-examination of DW-1, Ex.D.7 the blueprint of the building of defendant was shown. Ex.D.7 is produced by the defendant. In the Ex.D.7(a), defendant was permitted to construct ramp and staircase by the BBMP. So from this Ex.D.7, it is clear that the defendant has not illegally constructed concrete ramp and staircase on the western side boundary of suit schedule property. DW-1 has denied the suggestion that, the defendant has constructed ramp and staircase without permit. DW-1 denied the suggestion that they have encroached the property of plaintiff and constructed a compound wall. DW-1 also denied the suggestion that they have constructed a ramp, staircase and retaining wall inside the property of plaintiff. On the other hand, DW-1 has stated that in the property of defendant, the plaintiff has constructed a compound wall. It is also elicited from the mouth of DW-1 that the Hon'ble High Court has permitted the plaintiff to reconstruct the fallen down wall. It is admitted by PW-1 that she has not reconstructed the compound wall as per the Order of the Hon'ble High Court. DW-1 denied the suggestion that he had illegally demolished the compound wall and lumbar shed of the plaintiff.
27. The defendant in this case has given explanation in the written statement by stating that after obtaining the license from BBMP, while demolishing the existing old building, the compound wall built on left side within the premises of defendant's compound was collapsed at the time of 24 O.S.No.5249/2018 constructing the retain wall within the boundary lines of the property of the defendant. The said compound wall was not the common compound wall, as the same was built exclusively within the compound premises of the defendant's property. Further, the defendant has stated in the written statement that while demolishing the old residential building, the compound wall built on left side within the compound of defendant was collapsed and as such, the defendant has not demolished the said compound wall as stated by the plaintiff. Further, the defendant has stated that the ramp and staircase was built as per the sanctioned plan. It is evident from Ex.D.7. PW-1 in the cross-examination has stated that, the dispute between herself and defendant is with regard to encroachment of 6-7 inches property by defendant and constructing of compound wall. This admission of PW-1 is totally contrary to her pleadings and evidence. PW-1 in the cross examination admitted the measurement of her property and defendant's property by the Assistant Executive Engineer of BBMP and also preparation of sketch. It is admitted by PW-1 that her property measures 40 feet 11 inches by East to West and as per sale deed, her property measures East to West 40 feet only. This admission made by PW-1 clearly discloses that, the plaintiff is claiming 11 inches more extra space than the 40 feet purchased by plaintiff from the BDA. The measurement is shown by the Assistant Executive Engineer of BBMP in Ex.D.3 and D.11 discloses that towards East to West, the property of plaintiff measures more than the measurement of the property purchased by the plaintiff 25 O.S.No.5249/2018 through Ex.P.1 and Ex.P.4. In the cross examination of DW.1 plaintiff fails to elicit that in the month of September , the defendant towards of western side of plaintiff's property, defendant illegally constructed compound wall. The DW.1 has stated that said compound wall was constructed within the property of defendant. The plaintiff fails to prove that defendant in the month of September 2021, constructed compound wall by encroaching portion of suit schedule property. Hence, the plaintiff fails to prove that the defendant demolished portion of compound wall and lumbar shed wall on the western side of suit schedule property. In the same way, the plaintiff also failed to prove that the defendant illegally constructed concrete ramp and staircase on the western boundary of the suit property. The plaintiff also fails to prove that defendant in the month of September 2022, during the pendency of the suit, the defendant erected compound wall by encroaching portion of suit schedule property. Hence, Issue No.1 and 2 and Additional Issue No.1 are answered in the negative.
28. Issue No.3 to 5 & Additional Issue No.2:- The learned counsel for the plaintiff has relied on following decisions in support of the case of plaintiff;
1. (2021) 7 SCR 373; The Chairman, State Bank of India and another Vs. M.J.James.
2. Unreported Judgment of Hon'ble High Court of Kerala at Ernakulam passed in RSA No.193/2006; Mohanan Vs. Saraswathy and others.
26 O.S.No.5249/20183. AIR 1925 Calcutta 993; Umaram Gogoi Vs. Puruk Chand Oswal.
4. AIR 1927 Calcutta 54; Hari Bhusan Halder Vs. Sheikh Abdul.
5. AIR 1990 Bombay 182; Ramachandra Dattatraya Gandhi Vs. Sou. Pushpabai Manohar Sheth.
6. (2008) 4 SCC 594; Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. and others.
7. AIR 1990 Karnataka 236; Dr. K.Panduranga Nayak Vs. Smt. Jayashree and others.
With great respect to their Lordships, those case laws are not applicable to the facts and circumstances of the case on hand. In the case on hand, the plaintiff is seeking the relief of permanent injunction and mandatory injunction by contending that the defendant has demolished a portion of compound wall and lumbar shed wall on the western side of the property belonged to him. On the other hand, in the present case, it is the case of defendant that, the said compound wall is situated within the property of defendant. The Hon'ble Supreme Court in the decision reported in (2008) 4 SCC 594 has held that when plaintiff's title is under a cloud and he doesn't have possession, held, the remedy is suit for declaration and possession, with without consequential injunction. Where his title is not disputed or under a cloud but he is out of possession, held, the remedy suit for partition with consequential injunction. In the case on hand, the plaintiff has admitted that the defendant has 27 O.S.No.5249/2018 encroached about 6-7 inches of his property and constructed a compound wall. But, the plaintiff has not sought for possession or declaration.
29. The defendant has also filed the following decisions in support of her case;
1. 2021 SCC OnLine SC 675; Kayalulla Prambath Moidu Haji Vs. Namboodiyil Vinodan.
2. MANU/SC/7376/2008; Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs. and others.
3. (2019) 17 SCC 692; Jharkhand State Housing Board Vs. Didar Singh and another.
30. The Hon'ble Supreme Court in the decision reported in 2021 SCC OnLine SC 675 has held that the position in regard to the suit for prohibitory injunction relating to immovable property, where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. When the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to suit for partition with a consequential injunction. Where there is merely and interference with the plaintiff is lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
31. Since the plaintiff failed to prove Issue No.1 and 2, the question of plaintiff entitled for the relief of permanent injunction and mandatory injunction does not arise. Hence, this 28 O.S.No.5249/2018 Issue No.3 to 5 and Additional Issue No.2 are answered in the negative.
32. Issue No.6: In view of the above discussions, this court proceed to pass the following:-
ORDER Suit of the plaintiff is hereby dismissed Under the facts and circumstances of the case, the parties are directed to bear their own costs.
(Dictated to the Stenographer Grade-I on computer, typed by her, corrected and then pronounced by me, in the open court, on this the 7th day of January, 2025) (B.DASARATHA) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
ANNEXURE List of witnesses examined for plaintiff:
PW.1 : Smt.Vijayashri Dwarakanath List of documents exhibited for plaintiff:
Ex.P.1 : Certified copy of Sale Deed dated
27.04.1981
29 O.S.No.5249/2018
Ex.P.1(a) : Original Registered Sale Deed dated
27.04.1981
Ex.P.2 : Building Plan
Ex.P.3 : Form No.9
Ex.P.4 : Memo dated 18.02.1963 issued by
CITB
Ex.P.5 to 24 : 20 colour Photographs
Ex.P.25 : Pen-drive
Ex.P.26 : Certificate under Section 65-B of the
Indian Evidence Act
Ex.P.27 : Certified copy of Partial Order Sheet in
C.C.No.33862/2018
Ex.P.28 : Certified copy of Charge Sheet in
C.C.No.33862/2018
Ex.P.29 : Certified copy of Order passed in
W.P.No.13338/2018
Ex.P.30 : Copy of I-Sketch
Ex.P.31 : Xerox copy of Possession Certificate
Ex.P.32 : Xerox Copy of Sale Deed
Ex.P.33 : Copy of Judgment passed in Appeal
No.580/2018 (CH-1)
List of witnesses examined for defendant:
DW.1 : Sri.N.Lakshman List of documents exhibited for defendant:
Ex.D.1 : Special Power of Attorney
Ex.D.2 : True copy of Endorsement dated
02.03.2018
Ex.D.3 : True copy of Sketch
Ex.D.4 : Tax Paid Receipt
Ex.D.5 : Khata Extract
Ex.D.6 : Khata Certificate
Ex.D.7 : Sanctioned Plan
Ex.D.7(a) : Portion in Ex.D.7
Ex.D.8 : Copy of Letter dated 08.02.2018 I
Ex.D.9 : Copy of Letter dated 24.02.2018
Ex.D.10 : Notice dated 17.02.2018
30 O.S.No.5249/2018
Ex.D.11 : Endorsement dated 02.03.2018
Ex.D.12 : Certified copy of Order passed in
W.P.No.13338/2018
Ex.D.13 : Certified copy of Order Sheet of
W.P.No.13715-13718/2018
Ex.D.14 : Certified copy of Writ Petition
No.13715-13718/2018
Ex.D.15 : Certified copy of Orders passed in
M.F.A. No.3755/2019
Ex.D.16 : 3 Photographs
Ex.D.16(a) : Photo in Ex.D.16
Ex.D.17 : CD
Ex.D.18 : Letter of the Bank and its enclosure
XI ADDL., CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
Digitally signed
by DASARATHA
DASARATHA B
B Date: 2025.01.08
13:27:25 +0530