Bangalore District Court
Sri C.G. Krishnamurthy Rao vs Dr. B.R. Prakash on 25 November, 2024
KABC010056391999
IN THE COURT OF THE III ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH-25) AT BENGALURU.
DATED: THIS THE 25TH DAY OF NOVEMBER, 2024.
PRESENT : Smt. Nisharani A.C., B.A., LL.B.,
III Addl. City Civil and Sessions
Judge, Bengaluru)
O.S.NO.6917/1999
Plaintiffs : 1. Sri.C.G.Krishnamurthy Rao,
Since deceased by his Legal
Representatives:
a) deleted
b) Sri.B.K.Venkatesh
S/o Late Sri.C.G.Krishnamurthy Rao,
c) deleted
d) Smt.B.K.Chandrakala,
D/o Late Sri.C.G.Krishnamurthy Rao,
Major,
e) Smt.Gajagowri,
D/o late Sri.C.G.Krishnamurthy Rao,
Major,
f) deleted
(plaintiffs (a) to (f) are residing at
No.218, L.B.Shastri Road, 2nd main,
Uttarahalli,Subramanyapura Post,
Bangalore-560 061
g) deleted
2 O.S.No.6917/1999
h) B.K.Ahalya,
D/o. Late Sri.C.G.Krishnamurthy Rao,
W/o Late Shivakumar,
Major,
R/at, 7th Cross, 7th main,
Canara Bank Colony,
Srinivasanagar, Bangalore.
(By Sri.V.L., Advocate)
V/S
Defendants : 1. Dr.B.R.Prakash,
Father's name not known,
R/at No.329, 36th "A" Cross,
Behind Deena Bank, 5th Block,
Jayanagar, Bangalore-11
2. M/s. Bharath Housing Co-operative
Society Ltd., by its Secretary/
President, No.1, B.H.C.S. Layout,
(B.T.M. Scheme), Bannerghatta Road,
Bangalore-560 076
(By Sri.M.S.P., Adv., for Deft.No.1)
By Sri.K.S., Adv., for Deft.No.2)
Date of institution of Suit 08-09-1999
Nature of the Suit Declaration, recovery of
Possession, Mandatory Injunction
and such other consequential
reliefs.
Date of commencement 24-08-2005
of recording of evidence
Date on which Judgment
was pronounced 25-11-2024
3 O.S.No.6917/1999
Total duration Year/s Month/s Day/s
25 02 17
(Nisharani A.C)
III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU
JUDGMENT
This instant suit is filed by the plaintiff against the defendants for grant of declaration of title that plaintiff is the absolute owner of the suit schedule property, direct the defendant to deliver vacant possession of the suit schedule property to the plaintiff, and for mandatory injunction and such other consequential reliefs.
Schedule:
All that piece and parcel of the site bearing No.53, formed out of Sy.No.58/4, Kh.No.158, New Kh.No.268, measuring East to West: 30 feet and North to South: 15+23/2 feet situated at Chikkallasandra village, Uttarahalli Hobli, Bangalore South Taluk, bounded on the:-
East by: Site No.61 West by : Site No.54, North by : Road South by : Private Property 4 O.S.No.6917/1999
2. The brief facts of the Plaintiff's case is as under-
(a). The plaintiff is the absolute owner and in possession in respect of suit schedule property acquired the same by means of registered Gift Deed, dt: 29-10-1982. Since from the date Gift, the plaintiff has been in peaceful possession and enjoyment of the suit schedule property. Subsequent to the execution of the Gift deed in favour of the plaintiff, the revenue records were mutated in his name and he is paying the taxes to the concerned authorities.
(b). It is stated that the land bearing Sy.No.58/4 has been converted from agricultural to non-agricultural/residential purpose by the Tahasildar, Bangalore South Taluk vide notice bearing No.ALN.SR(S) 453/81-82 dated: 5-4-1982. Immediately after the conversion a layout has been formed an the same was approved by the competent authority in the said survey number.
(c). It is stated that the defendant has no manner of right, title or interest over the suit schedule property nor in possession of the same. The defendant claiming to be owner in respect of site on the southern side of the schedule property. The plaintiff is suffering from oldage ailments and since two years he has not personally inspected the suit schedule property. The plaintiff has already fenced with barbed wire around the suit schedule 5 O.S.No.6917/1999 property, when the plaintiff went to the suit property three days back to his shock and surprise came to know that the defendant has encroached the suit schedule property in its entirety and constructed a building thereon by illegally trespassing into the plaintiff's property even extended the construction over the road on the northern side of the schedule property. The defendant intentionally and deliberately had constructed a building by encroaching on the plaintiff's property with a malafide intention to make unlawful gain and deprive the legal right of the plaintiff over the suit property. Hence, filed this suit.
3. The defendants have appeared before the Court through their counsel and filed separate written statements.
(a). The defendant No.1 in his written statement has denied the allegations of plaintiff and contends that, the site claimed by the plaintiff does not exist and it is an imaginary claim. This defendant denied the existence of the plaint schedule property belonging to the plaintiff as claimed by him. It is stated that M/s Bharath Housing co-operative Society Ltd., who became owners through the acquisition by the competent authority of Land in Sy.No.17 and 18 of Uttarahalli village, Bangalore South Taluk, as absolute owners got surveyed the land by the competent authority with due notice to all 6 O.S.No.6917/1999 concerned. Thereafter, they formed a layout with a layout Plan duly approved by the B.D.A. Vide Resolution No.1170 dt:
10.08.1988 and work order No.BDA/TPM/D 409/90-91 dt;
12-10-1990. M/s Bharath Housing co-operative Society Ltd., at the request of the defendant allotted a site bearing No.297 measuring 40 x 60 feet formed in the layout in Sy.No.17 and 18 of Uttarahalli village as per allotment letter No.BHCS/Site/394/2-91-92 dated: 1-2-1992. Likewise a site No.298 was allotted to one B.R.Manjunatha under allotment letter dated: 01-02-1992. M/s Bharath Housing co-operative Society Ltd., executed sale deed in favour of the defendant in respect of site No.297 vide a sale deed. The defendant later with the knowledge and permission of BHCS Ltd., purchased site No.298 from Sri.B.R.Manjunath vide sale deed dt:
28.1.1995. The defendant is the absolute owner of site Nos.297 and 298 in the layout formed by B.H.C.S Ltd., in Sy.Nos.17 and 18 of Uttarahalli village. The defendant got katha in respect of both sites and got the plan approved by the competent authorities and has now constructed a house in both the sit Nos. 297 and 298 measuring 80 x 60 feet and has been paying taxes in respect of his property-house to the competent authority. The plaintiff is not entitled for any liberty to remove 7 O.S.No.6917/1999 the buildings constructed on the property belonging to the defendant. The defendant submits that on the northern side of the property belonging to the defendant, there is a road formed with drainage belonging to Bank Colony. The plaintiff has no property on the northern side of the property of the defendant as claimed by him and on the contrary there is a road and drainage belonging to the bank colony. There is no cause of action for the suit. The suit is not maintainable for non-joinder of property and necessary parties. Hence, prayed to dismiss the suit with cost.
(b). The defendant No.2 has filed written statement denied that the plaintiff is the owner of the plaint schedule property. The plaintiff has not disclosed the name of donor from whom he said to have acquired the Gift deed,dt: 29-10-1982 and as such this defendant is not admitting that the plaintiff has secured such a gift deed. That the 1st defendant is in lawful possession of the site which has been allotted to him by this defendant as per the schedule mentioned in the allotment letter. The plaintiff is not entitled for the relief of declaration and mandatory injunction even if he establish his title over the suit schedule property as the first defendant has already constructed a building on it and the plaintiff did not raise any objection at the 8 O.S.No.6917/1999 time of such construction. This defendant denies that the plaintiff is suffering from any ailments for two years prior to the institution of the suit. The plaintiff is not entitled for vacant possession of the schedule property. Hence, prayed to dismiss the suit with costs.
4. On the above rival contentions my predecessor in the office framed the following issues :-
ISSUES
1. Does the plaintiff prove that existence of the schedule property with the given boundaries?
2. Does the plaintiff prove his title to the schedule property?
3. Does he prove encroachment of and illegal construction on the schedule property by the defendant?
4. What decree/order the plaintiff is entitled to?
5. In order to prove/substantiate the case of plaintiffs, plaintiff No.1 (a) examined as PW-1 and examined two witnesses as P.Ws.2 and 3 and got marked documents as Ex.P-1 to 16 on their behalf. On the other hand on behalf of the defendants, defendant No.1 himself examined as D.W.1 and examined one witness on their behalf as D.W.2 and got marked 9 O.S.No.6917/1999 documents Ex.D1 to 26 and closed their side and case is posted for arguments. One Sri.Sachin.N.S. ADLR examined before the court as CW-1 and Sri. Vasanth Chawan- Surveyor examined before this Court as CW-2 and got marked documents as per C.Ws. 1 to 7.
6. Heard arguments of both the sides and perused the materials available on record.
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 : As per final order, for the following-
REASONS
8. In vide order, dated: 7-7-2007 this Court passed Judgment along with I.A.No.3 filed by plaintiff under Order 26 Rule 9. The same is challenged by the plaintiff before the Hon'ble High Court of Karnataka in RFA No.2231/2007. The RFA came to be disposed of by Hon'ble High Court of Karnataka by relying on Division Bench Judgment in ILR 2010 KAR 507 remitted back suit for fresh consideration to dispose of 10 O.S.No.6917/1999 I.A.No.3 under Order 26 Rule 9 in the first instance and then to dispose of the matter after consideration. However, the parties are restrained from leading any additional evidence and also restrained from withdrawing the admission already made during the course of their evidence.
9. Then the case called out on 14-12-2023 both parties appear before this Court and stage is posted for hearing on I.A No.3 under Or.26 Rule 9 of CPC, as per the orders of Hon'ble High Court of Karnataka and same is heard by both parties and order passed by this Court on 19-01-2024 by allowing the said application. Same is challenged by the defendant in W.P.No.6017/2024 wherein the Hon'ble High Court of Karnataka modify the order of this Court, dated 09-02-2024 and to appoint the Commissioner for limited purpose of conducting local inspection with respect to the plaint/suit schedule property only as sought in I.A.No.3.
10. In view of the observation made by the Hon'ble High Court of Karnataka this Court appointed Surveyor/ADLR and ADLR after issuing N.B.W. filed report on 31-07-2024.
11. After filing of the report by the Commissioner the plaintiff object the Commissioner report, hence, this Court 11 O.S.No.6917/1999 issued summons to Commissioner. Then bailable warrant issued to ADLR and Surveyor, both are appeared and examined as C.W.1 and 2 and got marked Ex.C-1 to C-7 also cross-examined by both the counsel and then posted the matter for arguments as per the observation of Hon'ble High Court of Karnataka.
12. ISSUE NO.1 To 3: Since these Issues are inter- related with each other, they are taken up together for discussion in order to avoid repetition of facts.
However, defendant No.1 in para-1 of his written statement disputed the very existence of the suit schedule property. Hence, my learned predecessor in office casted the Issue No.1 on the plaintiff is thus, " Does the plaintiff prove the existence of suit schedule property with the given boundaries"? Then, in order to show the existence of the property and to prove he is the absolute owner of the suit schedule property plaintiff relied on one Registered Document Gift Deed which is marked as Ex.P-1.
13. However, in the first instance the original plaintiff on record Sri.C.G.Krishnamurthy Rao, examined and the plaintiff counsel reported his death on 15-4-2005 the original plaintiff 12 O.S.No.6917/1999 died. Hence, then plaintiff No.1(a) the younger daughter of original plaintiff come on record and examined as PW-1(a) and got marked Ex.P-1 to P-16, wherein Ex.P-2 to 13 are the house tax assessment list and tax paid receipts. Ex.-14, 15 and 16 are certified copies of surveyor report, certified copy of sketch and Ex.P-27 Judgment and Decree in O.S.No.7333/93 dated 28-03-2003.
14. The plaintiff relied on Ex.P-1 which is Gift Deed executed by one Muthappa and his sons in favour of original plaintiff C.G.Krishnamurthy Rao and plaintiff is claiming his right over the suit schedule property by virtue of the Ex.P-1 i.e. Gift Deed. Then plaintiff counsel also argued that Ex.P-14, 15, and 16 are important documents in which it discloses that the report of the ADLR stated that Society i.e. defendant No.2 Society, i.e. M/s Bharath Housing Co.Op.Society Ltd., has encroached the property. Hence, even after the examination of the Commissioner also he admits in his evidence that suit schedule property existed in the border of Uttarahally village and Chikkallasandra village. The Counsel for the plaintiff argued that while deposing the Commissioner admitted that there an existence of suit schedule property. Hence, to decree the suit in favour of plaintiff.
13 O.S.No.6917/1999
15. On the other hand defendant No.1 canvassed his argument stating that Ex.P-1 is only document on it the plaintiff relied on. However, later on defendant No.2 was impleaded in the suit, no relief sought against defendant No.2. The admission made by PW.2 makes it clear that suit schedule property is not in existence. The Gift Deed in favour of her father original plaintiff C.G.Krishnamurthy. However the donor are not relatives to the plaintiff and even Ex.P-1 also not discloses how the property acquired by donor Muthappa and his sons and they are also not examined by the plaintiff.
16. Gift Deed executed in favour of the plaintiff in the year 1982 and the plaintiff died in the year 2005. The defendant No.1 constructing his house in the year 1997 wherein, till that day the plaintiffs are not filed any police complaint nor object the construction of defendant No.1 in the suit schedule property.
17. The defendant No.1 claimed their title over the suit schedule property by virtue of 2 documents i.e. Ex.D-11and Ex.D-12, with respect to Sy.No.17 and 18, site No.297 and
298. Site No.297 acquired by defendant No.1 by virtue of the sale deed executed by defendant No.2 Society in the year 14 O.S.No.6917/1999 1992. That Sale Deed is marked as Ex.D-11 then site No.298 acquired by defendant No.1 by virtue of Sale Deed by B.R.Manjunath one of the allottee of defendant No.2 in the year 26-01-1995. In this way by virtue of these two Sale Deeds the defendant No.1 acquired site Nos.297 and 298 in Sy.Nos.17 and 18. Both the sites are totally measuring 40 x 60 -2400 sq.ft. Hence, the plaintiff misrepresenting his site No.297 and 298 as plaintiff's property.
18. The counsel for defendant No.1 also argued vehemently that Ex.P-14,15 and 16 are the documents which pertains to Sy.No.58/4A. Wherein the plaintiff is claiming his title and right over the suit schedule property, which according to him comes under Sy.No.58 also Ex.P-14 and 15 are the document applied by one Mr.K.R.Rajan who is attestor to Ex.P-1 Gift Deed and he himself in his cross-examination admitted that those documents are obtained to produce in other cases and which is still pending before Hon'ble High Court of Karnataka.
19. Ex.P-14 and 15 which clearly discloses in the endorsement that this documents are issued on the request of K.R.Rajan. The defendant No.1 counsel also argued that 15 O.S.No.6917/1999 K.R.Rajan, is the attesting witness to Ex.P-1 which is Gift Deed by virtue of which the plaintiff sought for his title over the suit schedule property i.e. Sy.No.58 and according to the recitals and admission of Ex.P-1 and admission of PW.2 the Ex.P-14 and 15 are the document with respect to Sy.No.58/4A. Hence these document on which the plaintiff is relying is nothing to do with the plaintiff's suit schedule property. P.W.2 - K.R.Rajan also admits in his cross-examination that suit schedule property is not at all in existence.
20. P.W.3 is the husband of plaintiff No.1(a) and son-in- law of original plaintiff testify that he is adducing before the Court to decree the suit in favour of the plaintiff as he got married to PW.1 in the year 1996 and Gift Deed is of the year 1982. Hence, the evidence adduced by PW-3 the husband of the plaintiff No.1(a) cannot be relied on.
21. Then the defendant No.1 also argued that in the cross-examination of D.W.1 i.e. defendant No.1 examined as D.W.1 wherein, the plaintiff not even suggested one question to D.W.1 with respect to the encroachment of alleged site. 16 O.S.No.6917/1999 Hence, even when the contention itself is not pleaded by the plaintiff the plaint averments may be disbelieved by this Court.
22. Then Ex.P-17 is the judgment of the other case wherein the plaintiff nor defendant No.1 are the parties to the suit. Hence, the plaintiff failed to show the existence of the suit schedule property. Even the Commissioner also in his report clearly stated that both the parties shown one suit schedule property where the defendant party constructed his building and the plaintiff also admits the same. Hence, the Commissioner report also discloses that the suit schedule property is not encroached by the defendant. The counsel for the defendant argued that, the evidence of the Commissioner has to be seen along with his report which he has produced. In that report the Commissioner clarifies that there is no encroachment from defendant and the existed suit schedule property is Sy.No.18. Hence to dismiss the suit with exemplary costs.
23. On hearing arguments on both sides and on perusal of records in my conclusion I would say that PW.1 Gajagowri who is none other than daughter of original plaintiff 17 O.S.No.6917/1999 C.G.Krishnamurthy Rao, admitted some of the facts in her cross-examination. She states that as under,-
" I have seen the location of the property personally. I cannot say the extent of the property in which the defendant construct building or the extent of built up area". Then she herself voluntaries that " site of the defendant situated in Uttarahally village and our site situated in Chikkakallasandra". Then " now the suit schedule property is not vacant building is already built by defendant No.1. It is true in the site Nos.291 to 313 building are already on built as per approved plan and she herself admits that she cannot say the boundaries to the land bearing No.58/4. And she also admits that defendant No.1 is in possession of site No.297 and 298 and also he has already built up building in both sites".
24. Then P.W.2 K.R.Rajan, who is attestor to Ex.P-1 Gift Deed, he also admits some of the facts " the originals of Ex.P- 14 or 15 are produced in another case now pending before Hon'ble High Court of Karnataka". "the originals of Ex.P-14 18 O.S.No.6917/1999 and 15 are in survey department". In the instant case entire site was encroached by 2nd defendant society i.e. M/s Bharath Housing Co.Op.Society Ltd., It is true that according me no suit schedule site at present is in existence. It is true that 2 nd defendant Society M/s Bharath Housing Co.Op.Society Ltd., has formed layout towards south of the suit property of B.D.A. approved said layout". He also admits that one Dr. Prakash- defendant No.1 herein produced Ex.D-1 and Ex.D-1 is the B.D.A. approved layout plan during the year 10.8.1988 itself.
" Now I see Ex.P-15, it is true it is not shown in Ex.P-15 that the sites of defendant No.1 comes within the limits of Ex.P-15 sketch and he also admits that I am not author of Ex.P-15".
25. With this admission by both plaintiff No.2 and 3 when the plaint schedule property meticulously observed according to plaintiff the plaint schedule property is the piece and parcel of the site No.53 formed out of Sy.No.58/4. No doubt the plaintiff have produced Ex.P-1 which clarifies that the Gift Deed is with respect to the plaint schedule property which is the piece and parcel of site No.53 carved in Sy.No.58/4. However, as the admission is the best piece of evidence the plaintiff relied on Ex.P-14, 15 and 16. According to plaintiff 19 O.S.No.6917/1999 ADLR issued an endorsement stating that the property is encroached by 2nd defendant. It is very interesting to note that the plaintiff did not sought for an relief against the defendant No.2 as the document produced himself clarifies that the property encroached by the defendant No.2. The another thing in Ex.P-14 and 15 are with respect to Sy.No.58/4.
26. P.W.2 who is none other than Sri.K.R.Rajan, who testify his evidence in support of plaintiff himself admits that there is no existence of suit schedule site. Hence, the plaintiff has utterly failed to comply the Order 7 Rule 3 of C.P.C. wherein while seeking the declaration suit the burden is entirely on the plaintiff to show the identity of the property on it he sought for declaration of his title and ownership of the property.
27. The very first issue Casted is regarding the identity of the property which is disputed by the defendant No.1. However, both the plaintiffs are not denied that Site No.297and 298 are acquired by defendant No.1 by virtue of Sale deed executed by the 2nd defendant Society and also Manjunath who is an allottee of the 2nd defendant Society. Even both the plaintiffs also admits that the property acquired by Society and 20 O.S.No.6917/1999 B.D.A. approved layout also issued in favour of the 2 nd defendant society. Hence when the title of 2 nd defendant is not disputed the Sale Deeds executed by the 2nd defendant in favour of defendant No.1 and also Manjunath who is an allottee of the 2nd defendant with respect to site No.298 executed a sale deed in favour of defendant No.1 are valid.
28. However, even allowing of the application under Order 26 rule 9 the ADLR appointed by this Court plaintiff counsel disputed ADLR has not prepared and presented his report. However, on recording the evidence of ADLR as CW-1 he clearly testifying that he deputed one Mr.Vasanth Chowan, Surveyor for measuring the property. Besides, ADLR has not appointed any other persons who is other than the Survey Department. Hence that argument canvassed by the plaintiff cannot be satisfied.
29. CW-2 is also cross examined by both the counsels wherein CW-2 also admits that the plaintiff shown the property of the defendant as their property and he also testify that " ಅಲ್ಲಿ ಪಕ್ಷಕರರಾದ ವಾದಿಗಳು ಮತ್ತು ಪ್ರತಿವಾದಿಗಳು ಒಂದೇ ಸ್ಧ ಳವನ್ನು ದಾವಾ ಸ್ವ ತ್ತು ಎಂದು ತೋರಿಸಿರುತ್ತಾರೆ . ಆ ಸ್ವ ತ್ತು ಉತ್ತರಹಳ್ಳಿ ಗ್ರಾಮದ ಗಡಿಯಲ್ಲಿ ಬರುತ್ತದೆ ." 21 O.S.No.6917/1999
30. On perusal of the records, evidence of Commissioner and also on verifying the report of the Commissioner it is clear that the Commissioner himself admits and testifies that there is a existence of suit schedule property but it is Sy.No.18 which according to plaintiff herself is defendant sites. The plaintiff claiming that schedule property situated in Sy.No.58/4. But no where Commissioner admitted the fact that the existence suit schedule property is in Sy.No.58/4 and in the report the Commissioner clarifies that there is no encroachment from the defendant and also testify that plaintiff and defendant shown one property as suit schedule property which comes in Sy.No.18. Hence, even according to plaintiff counsel there is existence of property but Sy.No.18 and not Sy.No.58/4. Hence, even seen in all view plaintiff failed to prove that there is a existence of suit schedule property which according to him in Sy.No.58/8.
In the sketch Ex.C-1 it is states as under.
ನಕ್ಷೆಯಲ್ಲಿ IHKLMNOPQI ಎಂದು ತೋರಿಸಿರುವುದು ಉತ್ತರಹಳ್ಳಿ ಗ್ರಾಮದ ಸ.ನಂ.18 ಆಗಿದ್ದು ಪೂರಾ ಬಿ.ಡಿ.ಎ. ನಕ್ಷೆ ಅನುಮೋದಿತ ಬಡಾವಣೆಯಾಗಿರುತ್ತೆ ನಕ್ಕೆಯಲ್ಲಿ RTUVR ಎಂದು ತೋರಿಸಿರುವುದು ಸ್ಧ ಳದಂತೆ ಉತ್ತರಹಳ್ಳಿ ಸ.ನಂ.18 ರಲ್ಲಿ ಬರುವ ಪ್ರತಿವಾದಿಗಳು ಮನೆ ಕಟ್ಟಿರುವ ನಿವೇಶನ ಸಂಖ್ಯೆಃ 297,298 ಅಗಿರುತ್ತದೆ . ಇದರ ಒಟ್ಟು ಸುತ್ತಳತೆ 80+60=4800 ಆಡಿಗಳಿದ್ದು ಪ್ರತಿವಾದಿಗಳಿಗೆ 22 O.S.No.6917/1999 ಖಾತೆಯಾಗಿರುತ್ತದೆ .... ದಾವಾ ಸ್ವ ತ್ತು ಸರ್ವೆ ದಾಖಲೆಯಂತೆ ಅಳತೆ ಮಾಡಿ ಗುರುತಿಸಲಾಗಿ ಇದು ಚಿಕ್ಕ ಲ್ಲ ಸಂದ್ರ ಗ್ರಾಮದ ಸ.ನಂ. 58/4 ರ ಗಡಿಯಲ್ಲಿ ಬರುವುದಿಲ್ಲ . ಬದಲಾಗಿ ಪ್ರತಿವಾದಿಗಳು ಕ್ರಯಕ್ಕೆ ಪಡೆದಿರುವ ಉತ್ತರಹಳ್ಳಿ ಗ್ರಾಮದ ಸ.ನಂ. 18 ರಲ್ಲಿ ವಿಂಗಡಿಸಿರುವ ನಿವೇಶದಲ್ಲಿ ಬರುತ್ತದೆ ... ಸ್ಧ ಳದ ಮಾಹಿತಿಯಂತೆ ವಾದಿಗಳ ನಿವೇಶನ ಸಂಖ್ಯೆ 53 ನ್ನು ವಾದಿಗಳು ಸ್ಧ ಳದಲ್ಲಿ ಒದಗಿರುವ ಪಂಚಾಯಿತಿ ಅನುಮೋದಿತ ಬಡಾವಣೆ ನಕ್ಷೆಯಂತೆ ಹಾಗೂ ಬಾಜೂ ಮನೆಗಳ ಮೇಲೆ ಬರೆದ ನಿವೇಶನ ಸಂಖ್ಯೆಗಳ ಆಧಾರದ ಮೇರೆಗೆ [IDENTIFICATION] ಪತ್ತೆ ಮಾಡಲಾಗಿದ್ದು ಅದರೂ ಸರ್ವೆ ದಾಖಲೆಯಂತೆ ಗಡಿ ನಿಗದಿಪಡಿಸಿದಾಗ ಬಡಾವಣೆ ನಕ್ಷೆಯಲ್ಲಿ ನಮೂದಿಸಿರುವ ನಿವೇಶನ ಸಂಖ್ಯೆ 53 ಸ.ನಂ. 58/4B ಅಥವಾ 58/4A ಗೆ ಒಳಪಟ್ಟಿರುವುದು ಕಂಡುಬರುವುದಿಲ್ಲ ."
31. Then in the report submitted by the Commissioner which is marked as Ex.C-1 the sketch wherein the Commissioner stated that the suit schedule property will not comes under Sy.No.58/4 of Chikkalasandra village. Again even after verification also the property shown by the plaintiff will not comes under the border of Uttarahally village and Chikkalasandra village. Hence, the Commissioner also admits that the defendant already constructed a building in the suit schedule property. The same property shown by the plaintiff. Hence, even after appointing of Commissioner and give an opportunity to the plaintiff for identification of the property on 23 O.S.No.6917/1999 due verification and on measuring the suit schedule property the commissioner is also of the opinion that the plaintiff has not identify his property/as his site his plaint. Hence, once the property itself is not identify by the plaintiff then the question of deciding other issues i.e. whether the plaintiff is in possession of the property and whether the plaintiff is the absolute owner of the property does not arise. And on admission made by PW.2 and 3 also clarifies that at the date of evidence of Pws. 1 and 2 i.e. on 23-8-2005 and 11-11-2005 they themselves admitted that the building was already in existence and defendant No.1 has already in possession.
32. Therefore, even Ex.P-14, 15 and 16 cannot be considered because it is obtained from PW.2 who is attestor to Ex.P-1 Gift Deed and also he himself admits that these documents are obtained to produce in other case and on perusal of Ex.P-14 and 15 it clarifies that it is with respect to Sy.No.58/4A and also it is encroached by defendant No.2 and there is no relief sought by the plaintiff against defendant No.2. In view of my above discussions and the materials available on before the court, I am of the considered opinion that plaintiffs failed to prove their case with cogent and convincing evidence 24 O.S.No.6917/1999 and they are not entitled for any reliefs sought in the suit. Hence, I answer Issues No.1 to 3 in the Negative.
33. ISSUE NO.4: In view of my findings on Issue No.1 to 3, I proceed to pass the following -
ORDER The suit of the Plaintiffs is hereby Dismissed.
Having regard to the facts and circumstances of the case, the parties are directed to bear their own costs.
Draw decree accordingly.
(Dictated to the Steno Gr.II on computer, typed by him , after corrections pronounced by me in open Court on this day 25th day of November, 2024).
(NISHARANI A.C) III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU Witnesses examined on behalf of Plaintiffs:
PW.1 : Ms. Gajagowri
PW.2 : Sri.K.R.Rajan
PW.3 : Sri.Sadashivamurthy
25 O.S.No.6917/1999
Documents marked on behalf of Plaintiffs:
Ex.P1 : Original Gift Deed
Ex.P2 : House Tax demand register extract
Ex.P3 : House Tax assessment list
Ex.P4-12 : Tax paid receipts
Ex.P13 : Endorsement
Ex.P14 : C/c of Surveyor's report
Ex.P15 : C/c of Sketch
Ex.P16 : Copy of Judgment and decree in OS
No.7333/93 dtd: 28.03.2003
Witness examined on behalf of defendant/s:
DW.1 : Dr.BR.Prakash DW.2 : Sr.R.Ragavendraswamy
Documents Marked on behalf of Defendant/s:
Ex.D1 : Approved Layout plan
Ex.D2 : True copy of Sale Deed
Ex.D3 : True copy of possession certificate
Ex.D.4-7 : Copy of Encumbrance Certificates
Ex.D8 : Tax paid receipt
Ex.D9 : Letter of allotment
Ex.D10 : Copy of Sale Deed,dt: 14.02.1992
Ex.D11 : Copy of sale deed dtd: 28.9.1995
Ex.D12 : Possession Certificate
Ex.D13 : Encumbrance Certificate
Ex.D14 : Tax paid receipt
Ex.D15 : Challan
Ex.D16 : Katha Certificate
26 O.S.No.6917/1999
Ex.D17 : Letter of Allotment
Ex.D18 to : Tax paid receipts
24
Ex.D25 : Sketch
Ex.D26 : Letter of Canfin Homes Ltd.,
Court Commissioners Examined:
CW-1 : Sri.Sachin,N.S.
CW-2 : Sri.Vasanth Chavan
Exhibits Marked on behalf of Court Commissioners:
Ex.C1 : Sketch
Ex.C2 : Hissa & Tippani
Ex.C3 : Photos
Ex.C4 : Notice
Ex.C5 : Statements
Ex.C6 : Reminder Letter, dt: 18-06-2024
Ex.C7 : Representation letter
(NISHARANI A.C)
III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU
27 O.S.No.6917/1999