Bangalore District Court
Sri.D.Rakesh Sharma vs Smt.Parvathi on 22 May, 2020
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IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH NO.23.
DATED THIS THE 22 nd DAY OF MAY, 2020.
PRESIDING OFFICER
PRESENT : Sri.Sadananda M.Doddamani,
B.A., L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
O.S.No.8584/2013
PLAINTIFF/S: 1. Sri.D.Rakesh Sharma,
S/o M.Doddaiah,
Aged about 23 years,
R/at No.119, Nayandalli,
Mysore road,
Bengaluru - 560 039.
(By Sri.LD, Advocate)
Vs.
DEFENDANT/S: Smt.Parvathi,
W/o G.S.Ningaraju,
Aged about 26 years,
R/at No.24, Janatha colony,
Nayandahalli, Mysore road,
Bengaluru - 560 039.
(By Sri.MNR, Advocate)
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* * * * *
Date of institution of suit : 26.11.2013
Nature of suit : Declaration,
injunction &
possession
Date of commencement
of recording of evidence : 08.10.2015
Date on which the judgment
was pronounced : 22.05.2020
Duration of the suit :Year/s Month/s Day/s
06 05 26
JUDGMENT
1. This is a suit filed by the plaintiff seeking the relief of declaration and possession.
2. In brief the case of the plaintiff is as under:
That the plaintiff is the absolute owner in possession and enjoyment of the property bearing No. 2, Khatha No. 74/A measuring east to west 50 feet 3 and north to south 20 feet as detailed in the plaint 'A' schedule. It is further contended that the plaintiff acquired 'A' schedule property under registered gift deed dated 21.2.2013 executed by his father by name M.Doddaiah. It is further contended that as the measurement of 'A' schedule property inter-changed, as such the same was corrected by Rectification Deed dated 24.5.2013. It is further contended that the 'A' schedule property forms part of Sy.No. 74/5 and the father of the plaintiff inherited the same and his father got mutated his name in respect of Sy.No. 74/5. It is further contended that in pursuance of the mutation order the name of the father of the plaintiff entered in RTC in respect of the above referred property. It is further contended that ever since the plaintiff acquired 'A' schedule property under registered gift 4 deed as referred above he is in peaceful possession and enjoyment of the same without hindrance whatsoever over the same by anybody. It is further contended that the suit 'A' schedule property now included within the BBMP but the BBMP is not issuing any Khatha in respect of the area which included subsequently.
3. It is further contended that when such being the case during the 2 nd week of August 2013 the defendant came near the suit schedule property and started digging the foundation. The plaintiff objected for the same and the defendant proclaimed that she is the owner of the suit schedule property and the BBMP has issued sanction plan. It is further contended that despite the repeated request and demands the defendant did not care to show the documents of title and the sanction plan. So the 5 plaintiff gave complaint to the concerned Executive Engineer and BMTF on 22.8.2013 despite the receipt of the complaint the BBMP did not take any action. It is further contended that the representation made by the plaintiff to the BBMP was also sent to the Joint Director, Planning Section attached to BMTF. The Joint Director Planning Section attached to BMTF replied to plaintiff stating that the order is made to enquire into the allegations and to take action against KMC Act and in case if there is any sanction plan by its order dated 22.9.2013.
4. It is further contended that the defendant claims title in respect of property where she is putting up construction as site No. 27A formed in Sy.No.74/3 of Nayandhalli village, Kasaba hobli, Bengaluru, measuring east to west 16 feet and north to south 32 feet. There is no existence of such property as 6 claimed by the defendant and the property claimed by the defendant is the portion of the suit schedule property. The defendant is putting up construction hurriedly without any sanction plan by the competent authority only in order to knock of the schedule property. It is further contended that the defendant falsely claims that the property on which the construction is going on is the property formed in Sy.No. 74/3. The property claimed by the defendant is described in the plaint as 'B' schedule property. The suit 'B' schedule property is the portion of 'A' schedule property. As the 'A' schedule property was a vacant site the defendant illegally got into possession of the same and putting up construction over the suit 'B' schedule property which is illegal. Further contended that the defendant is not the owner of the suit 'B' schedule property, as the same 7 form part of 'A' schedule property, etc. In view of his above contentions and other contentions taken in the plaint he has come up with the present suit and accordingly prays for to decree the suit.
5. The suit summons sent by this court was duly served upon the defendant and she has appeared before the court through her counsel and filed his detailed written statement by denying all the plaint averments.
6. The defendant in her written statement contended that she has already constructed RCC building in site No. 27A forming in the property Khatha No. 74/3 measuring 16 x 32 feet. She has denied the contention of the plaintiff that the above said property is a portion of the suit schedule property. It is further contended that she has 8 purchased site bearing No. 27A, Khatha No. 01, measuring 16 x 32 feet situated at Vinayaka extension, Nayandahalli layout road, bounded east by property belongs to Muneera, west - remaining property, north road and south property belongs to Muneera from one Basavaraju, S/o Achappa on 8.8.2011 for valuable consideration of Rs.5,12,000/-. It is further contended that since the purchase of the above said property the defendant is in continuous peaceful possession and enjoyment of the property by mutating the said property to her name and paying the prescribed tax to the BBMP. It is further contended that in the year 2013 the defendant has constructed the RCC building by obtaining licence from the BBMP with approved plan. The BBMP has even granted free grant of Rs.3,00,000/- for SC, ST quota to this defendant to construct house. It is 9 further contended that now the defendant is residing in the house built by her along with her family members. It is further contended that there is no cause of action for the plaintiff to file the present suit and the given cause of action is created for the purpose of present suit. It is further contended that the schedule given in the plaint is false and it has been given with an ulterior motive to knock of the defendant's property. The plaintiff has filed the present false and vexatious suit in order to grab the property of defendant, etc. In view of her above contentions and other contentions taken in the written statement she prays for to dismiss the suit.
7. Heard the arguments of both the sides. 10
8. On the basis of the above rival pleadings of the parties this court has framed the following as many as 4 issues.
1) Whether the plaintiff proves his
right and title over the suit
schedule properties ?
2) Whether the plaintiff is entitled
for possession of the 'B' schedule
property ?
3) Whether the plaintiff is entitled
for the reliefs as claimed by
him ?
4) What order or decree ?
9. The plaintiff in order to establish his case he himself got examined as PW1 and got marked 10 documents from Ex.P1 to Ex.P10 and closed his side evidence. The defendant in order to establish her case she herself got examined as DW1 and got 11 marked 18 documents from Ex.D1 to Ex.D18 and closed her side evidence.
10. My findings to the above said 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 the final order
for the following:
REASONS
11. Issue No. 1 & 2: Since both these issues are
inter-connected, as such they have been taken
together for common consideration and discussion in order to avoid repetition of facts and also for the sake of convenience.
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12. The plaintiff in order to establish his case, he himself got examined as PW1 and filed his affidavit evidence by way of examination-in-chief. The perusal of the affidavit evidence of PW1 would show that it is nothing but replica of plaint averments. As such there is no need to repeat the same facts herein. PW1 in support of his case got marked 10 documents from Ex.P1 to Ex.P10. In view of his oral and documentary evidence he prays for to decree the suit.
13. The defendant in order to establish her case she herself got examined as DW1 and filed her affidavit evidence by way of examination-in-chief. The perusal of the affidavit evidence of DW1 would show that it is nothing but repetition of written statement averments. As such there is no need to repeat the same facts herein. DW1 in support of her case got 13 marked 18 documents from Ex.D1 to Ex.D18. In view of her oral and documentary evidence she prays for to dismiss the suit.
14. The learned counsel for the plaintiff during the course of his arguments contended that the plaintiff has filed the present suit to declare him as the absolute owner of suit 'A' schedule property and sought for possession of the suit 'B' schedule property. He further contended that the plaintiff is the absolute owner in possession and enjoyment of the suit 'A' schedule property and he has acquired the same under registered gift deed dated 21.2.2013 from his father by name M.Doddaiah. In order to substantiate his contention he placed his reliance upon Ex.P1 the above referred gift deed. He further contended that as the measurement of the suit 'A' schedule property inter-changed, as such the same 14 was corrected by Rectification Deed dated 24.5.2013. In order to substantiate his contention he placed his reliance upon Ex.P2. He further contended that the suit 'A' schedule property forms part of Sy.No. 74/5 and the same was inherited by the father of plaintiff by name Doddaiah and he got mutated his name in respect of the above said survey number and accordingly name of the father of the plaintiff came to be entered in the RTC relating to the above said property. In order to substantiate his contention he placed his reliance upon Ex.P3 two RTC extracts. So he contended that the above said documents itself would clearly shows that the plaintiff is the absolute owner of the suit 'A' schedule property.
15. He further contended that right from the date of the plaintiff acquired suit 'A' schedule property under Ex.P1 gift deed he is in possession and enjoyment of 15 the same. He further contended that when things stood like so in the 2 nd week of August 2013, the defendant came near the suit schedule property and started digging the foundation. When plaintiff objected for the same, the defendant proclaimed that she is the owner of suit schedule property and the BBMP has issued sanction plan. He further contended that inspite of repeated request and demand the defendant did not care to show the documents of title and the sanction plan. So the plaintiff lodged complaint with the Executive Engineer and BMTF on 22.8.2013 and also to the police with regard to the above said illegal act of the defendant. In order to substantiate his contention he placed his reliance upon Ex.P4 copy of the complaint given to the police authorities and copy of the complaint given to the BBMP authorities. He further 16 contended that the defendant claims title in respect of the property where she is putting up construction, i.e., site No. 27A formed in Sy.No.74/3 of Nayandahalli village, Kasaba hobli, Bengaluru, measuring east to west 16 feet and north to south 32 feet. He further contended that there is no existence of such property as claimed by the defendant and the property claimed by her is the portion of suit 'A' schedule property which is described in the plaint schedule as 'B' schedule property. What he contended that the area where the defendant has put up construction is a part and parcel of 'A' schedule property which is shown in the plaint schedule as 'B' schedule property measuring east to west 16 feet and north to south 20 feet. He further contended that the 'A' schedule property was a vacant site and the defendant has illegally got into possession of the 17 same and putting up construction over the portion of 'A' schedule property muchless the 'B' schedule property which is illegal. He further contended that the very document produced by the plaintiff at Ex.D7, i.e., CD and the photographs placed before the court would show that the defendant by encroaching the portion of 'A' schedule property muchless the 'B' schedule property the defendant has put up construction therein. He further contended that the very document produced by the plaintiff at Ex.P8, i.e., certified copy of the sale deed dated 22.1.2013 executed by the father of plaintiff M.Doddaiah in favour of C.Narayanaswamy and his wife by name Kanaka and the certified copy of the gift deed dated 1.9.2017 executed by M.Doddaiah in favour of his daughter D.Manjula Sharma would show that he has sold property mentioned in Ex.D10 gift 18 deed in favour of her daughter. So what he contended that the very document produced by the defendant as referred would show that those properties are coming nearby the suit schedule property and also the said documents would clearly shows the factum of encroachment made by the defendant in a portion of 'A' schedule property which is shown in the plaint schedule as 'B' schedule property.
16. He further contended that the plaintiff has also produced the certified copy of sale deed dated 29.1.2018 executed by him in favour of one Muddu Mahadeva in respect of the suit schedule property. What he contended that under Ex.P9 sale deed the plaintiff has sold the portion of 'A' schedule property totally measuring 752.5 feet whereas suit 'A' schedule property measuring east to west 50 feet and north to 19 south 20 feet. What he contended that still the plaintiff has retained some portion in the suit 'A' schedule property and though the plaintiff has sold some portion of 'A' schedule property during the pendency of the suit, on the sole ground the suit of the plaintiff cannot be rejected as because he has retained some portion in the suit 'A' schedule property. He further contended that DW1 during the course of her cross-examination at page No. 5 in the 1 st para admitted that she has no objection in respect of the property claimed by the plaintiff in the present suit. So what he contended that the very said evidence given by DW1 in her cross-examination would clearly shows that the plaintiff is entitled for the relief as sought in the present suit. He further contended that earlier the suit schedule property was not included within the BBMP and subsequently it 20 was included within the limits of BBMP. As such BBMP has not issued any Khatha in respect of area which were included subsequently. So he contended that under the above said facts and circumstances the plaintiff has not produced the Khatha standing in his name relating to the suit schedule property. The non-production of the Khatha and other revenue documents in respect of the suit schedule property is not a ground to deny the relief sought by the plaintiff in the present suit. He further contended that the very oral and documentary evidence on record would clearly goes to show that the plaintiff is the absolute owner of suit schedule 'A' property and the defendant illegally encroached a portion of 'A' schedule property which is shown in the plaint schedule as suit 'B' schedule property, as such the plaintiff is entitled for the relief of declaration to 21 declare him as the absolute owner of the suit schedule 'A' property and for possession of the suit 'B' schedule property which is illegally occupied by the defendant. In view of his above arguments he urged to answer issue No. 1 and 2 in the Affirmative.
17. The learned counsel for the defendant during the course of his arguments contended that the plaintiff has filed the present suit to declare him as the absolute owner of 'A' schedule property and for possession of 'B' schedule property. He further contended that basically the suit of the plaintiff has become infructuous. What he contended that the very certified copy of the document produced by the plaintiff at Ex.P9, i.e., sale deed dated 29.1.2018 would show that during the pendency of the present suit the plaintiff has sold the suit 'A' schedule 22 property in favour of Muddu Mahadeva. When such would be the case the plaintiff has no locus standi to continue the present suit and on the sole ground the suit of the plaintiff is liable to be dismissed. He further contended that when the plaintiff has sold the suit 'A' schedule property under Ex.P9 sale deed the question of seeking possession of alleged suit 'B' schedule property does not arise at all.
18. He further contended that though the plaintiff claims that he acquired the suit 'A' schedule property under Ex.P1 gift deed but till this date the revenue documents were not entered in the name of plaintiff and even he has not paid any taxes in respect of the alleged 'A' schedule property. He further contended that it is the contention of the plaintiff that the defendant in the 2 nd week of August 2013 came near the suit schedule property and started digging 23 foundation and inspite of efforts made by him to get information from the defendant on what strength he is digging foundation, but he failed in his attempt. So the plaintiff contended that he lodged complaint with the jurisdictional police and also the concerned Executive Engineer and BMTF on 22.8.2013. He further contended that the contention of the plaintiff is that the defendant encroached a portion of 'A' schedule property which is shown by him as suit 'B' schedule property wherein the measurement of the suit property is shown as east to west 16 feet and north to south 20 feet. So what he contended that it is the contention of the plaintiff that the above extent of property in the 'B' schedule is encroached by the defendant. He further contended that the plaintiff has produced copy of the complaint given to the Superintendent of Police and copy of the 24 complaint given to the BMTF as per Ex.P4 and Ex.P5. The learned counsel for the defendant by placing his reliance upon the said two documents contended that in the said two documents the plaintiff contended that the defendant has encroached 10 feet in his property, whereas in plaint 'B' schedule property he has stated that the defendant has made encroachment to the extent of 16 x 20 feet which is quite contrary to the measurement mentioned in the complaint at Ex.P4 and Ex.P5. So what he contended that the above said aspect itself would goes to falsify the contention of the plaintiff that the defendant has made encroachment in a portion of 'A' schedule property muchless the alleged suit 'B' schedule property. He further contended that the learned counsel for the plaintiff during the course of his arguments contended that the very certified copy of 25 the partition deed produced by the defendant at Ex.D12 would show what are all the properties fallen to the share of the vendor of the defendant by name A.Basavaraju and contended that even the said document also would support the contention of the plaintiff that the defendant has encroached a portion of 'A' schedule property muchless the alleged suit 'B' schedule property. So far as the said contention of the learned counsel for the plaintiff what he contended that the defendant herself has produced certified copy of Ex.D12 partition deed and the said document does not disclose the stand taken by the plaintiff that the defendant has encroached in a portion of 'A' schedule property muchless the alleged suit 'B' schedule property. So he contended that absolutely there is no substance in the contention taken by the plaintiff and just to knock of the 26 property of the defendant the plaintiff has come up with the present suit. He further contended that the plaintiff and his father by name M.Doddaiah are in the habit of selling property and filing suit against the purchasers in order to grab some more money. In order to substantiate his contention he placed his reliance upon Ex.D13 to Ex.D18, i.e., certified copy of the plaint in various suits filed by them against so many persons. So he contended that the said document itself would clearly shows the conduct of the plaintiff and his father and even in the present case also even though the defendant has not made any encroachment in the alleged suit schedule property of the plaintiff, but he falsely contending that the defendant made encroachment in a portion of 'A' schedule property, muchless the suit 'B' schedule property. So he contended that absolutely 27 there is no substance in the stand taken by the plaintiff.
19. He further contended that per contra the very document produced by the defendant at Ex.D1, i.e., original sale deed dated 8.8.2011 shows that the defendant has purchased property bearing No. 27/A carved in Sy.No. 74/3, old ward No. 39, present ward No. 131 (BBMP), Vinayaka Badavane, Nayandahalli village, Kasaba hobli, Bengaluru south taluk, measuring east to west 16 feet and north to south 32 feet totally measuring 512 sq.ft. He further contended that the defendant belongs to the minor community. As such by considering the said aspect the BBMP authorities have granted Rs.3,00,000/- for the purpose of putting construction in the property obtained by the defendant under Ex.D1 sale deed. He further contended that the very contents of Ex.D2 28 would clearly shows that the BBMP authorities granted Rs.3,00,000/- to the defendant and wherein they have stated that they are going to release the amount in four installments. He further contended that the very document produced by the defendant at Ex.D3, i.e., rough sketch approved by the BWSSB would show that the same is in respect of property purchased by defendant under Ex.D1 sale deed. He further contended that even the BESCOM authorities sanctioned power connection to the house put up by the defendant in the property purchased by him under Ex.D1. In order to substantiate his contention he placed his reliance upon Ex.D4 and also for having obtained water connection he placed his reliance upon Ex.D5 and copy of the application given to the BWSSB authorities to provide water connection to the house put up in the property 29 purchased by him under Ex.D1 sale deed. He further contended that in pursuance of the defendant having purchased property covered under Ex.D1 sale deed he himself paying taxes in respect of the suit property and in order to substantiate his contention he placed his reliance upon Ex.D7, five tax paid receipts and also placed his reliance upon Ex.D10 seven KEB bills and Ex.D11 eleven water bills to show that he himself paying KEB and water charges in respect of the house put up in the property purchased by him under Ex.D1 sale deed. So what he contended that the above referred documents would clearly shows that the defendant has put up construction in the property purchased by him under Ex.D1 sale deed and the BBMP authorities having verified the document of title relating to the property covered under Ex.D1 sale deed have given permission 30 to put up construction in the suit schedule property and they have also released Rs.3,00,000/- for the purpose of construction in the property purchased by the defendant covered under Ex.D1 as he belongs to SC, ST community. So what he contended that absolutely there is no acceptable evidence placed before the court to show the contention of the plaintiff that the defendant has made encroachment in a portion of 'A' schedule property muchless the alleged suit 'B' schedule property. He further contended that the contention given by PW1 in the cross-examination would clearly goes to show that by making false allegations to knock of the property of the defendant she has filed the present suit. So he contended that absolutely there is no merit in the suit filed by the plaintiff. So in view of his above 31 arguments he urged to answer issue No. 1 and 2 in the Negative.
20. In the light of the arguments canvassed by the respective counsels for the parties I have gone through the records. Admittedly this is a suit filed by the plaintiff to declare him as the absolute owner of the suit schedule property and also sought for the possession of the suit 'B' schedule property. It is the contention of the plaintiff that he has acquired the suit 'A' schedule property under Ex.P1 registered gift deed dated 21.3.2013 and the same was executed by his father M.Doddaiah. It is the contention of the plaintiff that the measurement of 'A' schedule property inter-changed, as such the same was corrected by Rectification Deed as per Ex.P2 dated 24.5.2013. It is the contention of the plaintiff that the defendant has no concern to the suit 'A' schedule 32 property and inspite of the same in the 2 nd week of August 2013 she came near the suit schedule property and started digging the foundation. Inspite of his request the defendant failed to show the document of title and the sanction plan. So being fed up with the said act of the defendant the plaintiff has given complaint to the police as per Ex.P4 and also to the BBMP authorities as per Ex.P5. It is the contention of the plaintiff that the defendant has encroached the suit 'B' schedule property measuring east to west 16 feet and north to south 20 feet which is shown in the plaint schedule as suit 'B' schedule property. So he has come up with the present suit seeking the relief as stated above.
21. When the plaintiff has come up with the present suit seeking the relief as stated above, it is for him to establish his stand to get the relief as sought by 33 him in the present suit. The perusal of plaint 'A' schedule property and also Ex.P2 Rectification Deed dated 24.5.2013 would show that the measurement of 'A' schedule property east to west 50 feet and north to south 20 feet. So it can be said that the total extent of suit 'A' schedule property is 1000 sq.ft. The contention of the plaintiff is that the defendant has encroached a portion of 'A' schedule property which is shown in the plaint schedule as suit 'B' schedule property measuring 16 x 20 feet totally measuring 320 sq.ft. The plaintiff in the plaint as well as in his evidence stated with regard to the alleged act of the defendant in the month of August 2013 he lodged complaint with the police as per Ex.P4 and the BBMP authorities as per Ex.P5. The perusal of the said two complaints would show that wherein the plaintiff has stated that the defendant 34 has made encroachment to the extent of 10 feet in his property. The said allegation of the plaintiff is quite contrary to the measurement shown in the suit 'B' schedule property, i.e., measuring east to west 16 feet and north to south 20 feet totally measuring 320 sq.ft. Absolutely there is no acceptable evidence has been placed before the court why there would be difference in the alleged encroachment by the defendant has been stated by the plaintiff in the plaint, in his evidence and why there would be difference in respect of alleged encroachment in Ex.P4 and Ex.P5 complaint and plaint suit 'B' schedule property. Another important aspect to be taken note of here is that during the pendency of the present suit the plaintiff has sold suit 'A' schedule property as per Ex.P9 in favour of one Muddu Mahadeva. In fact the certified copy of the said sale 35 deed dated 29.1.2018 was placed before the court by the plaintiff himself. As it is already stated above the measurement of the suit 'A' schedule property east to west 50 feet and north to south 20 feet totally 1000 sq.ft. The perusal of the schedule mentioned in Ex.P9 sale deed would show that wherein he has sold a portion of 'A' schedule property measuring east to west 38 feet, on southern side 32 feet, north to south 20 feet and towards western side 23 feet. The perusal of the schedule of the said documents would clearly shows that the plaintiff has sold 752.5 sq.ft. in favour of Muddu Mahadeva. Admittedly it is the case of the plaintiff that the defendant has made encroachment in the portion of 'A' schedule property which is described as suit 'B' schedule property in the plaint schedule measuring east to west 16 feet and north to south 20 feet totally measuring 320 36 feet. The point to be taken note of here is that during the pendency of the suit the plaintiff has sold 752.5 sq.ft. in favour of Muddu Mahadeva and the remaining portion in the suit 'A' schedule property would be only 248 sq.ft. Whereas the alleged encroachment claimed by the plaintiff in a portion of 'A' schedule property which is shown as 'B' schedule property is 320 sq.ft. The above said aspect itself would clearly goes to show that the contention of the plaintiff that the defendant has made encroachment to the extent of 16 x 20 feet in the alleged suit schedule 'B' property cannot be accepted as because after the plaintiff sold 752.5 sq.ft. to Muddu Mahadeva the only remaining extent in 'A' schedule property is 248 sq.ft. Absolutely there is no acceptable explanation by the plaintiff nor his counsel so far as this aspect is concerned. Another 37 important aspect to be taken note of here is that during the pendency of the suit the plaintiff has alienated the portion of suit 'A' schedule property under Ex.P9 sale deed which would also shows the conduct of the plaintiff. In fact the defendant in his evidence has produced the certified copy of the plaint in several original suits filed by the purchasers against the plaintiff and his father at Ex.D13 to Ex.D18. No doubt the said suits are not relating to the property involved in the present suit but the point to be taken note of here is that the conduct of the plaintiff, i.e., to say filing false suit to grab the property of others and to make unlawful gain.
22. The learned counsel for the plaintiff during the course of his arguments contended that the very sale deed dated 22.1.2013 produced at Ex.P8 and gift deed produced at Ex.P10 the same was executed by 38 the father of plaintiff in favour of his daughter by name D.Manjula Sharma under gift deed dated 1.9.2017 would show that the alleged encroahment by the defendant in a portion of 'A' schedule property muchless the suit 'B' schedule property. I have gone through the said document. But the evidence on record as discussed above would show that the said contention of the learned counsel for the plaintiff that the above referred document would show that the alleged encroachment by the defendant in a suit 'B' schedule property which is a portion of 'A' schedule property cannot be accepted. The perusal of the cross-examination of PW1 would show that there is no very firmness in the say of the plaintiff. The plaintiff in his cross-examination admitted that Sy.No. 74/5 was acquired by the BDA and again he says that subsequently the BDA has 39 dropped acquiring the above said survey number. At this juncture it would be relevant to quote the said portion of evidence given by PW1 in his cross- examination at page No. 8 from the top 3 rd line wherein he deposed as under:
"ನ.ಪ.3 ಪಹಣ ದದವದಸಸತತನ ಸವರರ ನನ.ಗರ ಸನಬನದಪಟಟದದದ ಅದದ ಒಟದಟ 1 ಎಕರರ 26 ಗದನಟರ ಅದರಲಲ 1 ಗದನಟರ ಕರದಬಬ ಸರಸರ ಇರದತತದರ .
ನ.ಪ. 3 ರಲಲರದವ 2 ನರಸ ಪಹಣಯಲಲ ಕಲನ ನನ.11 ರಲಲ ದದವದಸಸತತನದನ ಬಡಎದವರದ ಸದಸದಸನ ಪಡಸಕರಕನಡರದತದತರರ ಎನದದ ತರಕಸರಸಲದಗದರ ಎನದರರ ಸದಕಕಯದ ತರಕಸರಸದದದ ಆದರರ ಅದನದನ ಕರಕಬಟಟರದತದತರರ ಎನದದ ಹರಸಸದತದತರರ . ಬಡಎದವರದ ಸದರ ಸಸತತನದನ ಕರಕಬಟಟರದವವದಕರಕ ದದಖಲದತಯನದನ ಹದಜರದ ಮದಡಲಲ, ಪಪತವದದ ಸಸತತನದನ ಯದವದಗ ಕರಕನಡದಕರಕನಡರದತದತರರ ಗರಕತತರದವವದಲಲ , ಅದರನತರ ಅವರದ ಯದರನದ ಖರಸದಸರದತದತರರ ಎನಬದದರ ಬಗರಗಯಕ ಸಹ ಗರಕತತರದವವದಲಲ."
40
23. The above evidence given by PW1 would show that though he has stated that the acquisition proceedings dropped by the BDA authorities but in support of the same no document has been placed before the court. The above said aspect and also the selling of portion of 'A' schedule property during the pendency of the present suit under Ex.P9 sale deed would show the conduct of the plaintiff and for the best reasons known to him he has deliberately alienated the portion father 'A' schedule property during the pendency of the present suit. Apart from that as it is already stated above after alienating 752.5 sq.ft in suit 'A' schedule property in favour of Muddu Mahadeva under Ex.P9 sale deed dated 29.1.2018 the remaining extent in the 'A' schedule property is only 248 sq.ft., whereas the allegation made by the plaintiff against the defendant that he 41 has encroached 16 x 20 feet totally amounting to 320 sq.ft., as shown in the 'B' schedule which does not tally with the remaining extent in suit schedule property after alienating 752.5 sq.ft. under Ex.P9 sale deed in favour of Muddu Mahadeva. So also it is already stated that the extent of encroachment shown in Ex.P4 and Ex.P5 complaint are quite contrary to the extent of encroachment shown in suit 'B' schedule property. Even PW1 in his cross-examination at page No. 8 last but one line and 1 st five lines at page No. 9 the has deposed as under:
"ನ.ಪ.4 ರ ಪಪಕದರ ನದನದ ಪಲಸಸಬ ಕಮಸಷನರಬ
ಅವರಗರ ದಕರನದನ ನಸಡರದತರತಸನರ ಎನದರರ ನಜ .
ಸದರ ದಕರನಲಲ ನಮಮ ಸಸತತನ ಜದಗದಲಲ 10 ಅಡ
ಜದಗವನದನ ಆಕಪಮಸಕರಕನಡರದತದತರರ ಎನದದ
ನಮಕದಸಲದಗದರ ಎನದರರ ನಜ . ನನಗರ ದದನಪತಪ
ಮದಡಕರಕಟಟ ಸಮಯದಲಲ ಇದದನತಹ ಖದತದ
ಸಟರಫಕರಸಟಬ ಹದಜರದ ಪಡಸಲದ ತರಕನದರರ ಇರದವವದಲಲ. ದದವದಸಸತತನಲಲ ಮನರ ಕಟಟ ವದಸ ಇರದತರತಸವರ ಎನದದ 42 ತರಕಸರಸಲದ , ನಸರನ ಬಲಬ , ವದದದತಬ ಬಲಬ ಅಥವದ ಕನದದಯ ರಶಸದಗಳನದನ ಹದಜರದ ಮದಡಲಲ ."
24. Again PW1 in his cross-examination at page No. 9 last two lines, wherein he has admitted as under:
" ಪಪತವದದ ಮನರಯನದನ ಕಟಟಕರಕಳಳಲದ 3 ಲಕಕ ಅನದದದನವನದನ ಬಬಎನಪಯವರದ ನಸಡರದತದತರರ ಎನದರರ ನಜ ."
25. The above evidence given by PW1 in his cross- examination would clearly shows that he has not placed a single scrap of paper to show that he is in possession of entire extent of 'A' schedule property and also he admitted in Ex.P4 complaint he has stated that 10 feet area in his property was encroached by the defendant which is quite contrary to the alleged encroachment shown in suit 'B' schedule property. So also he has admitted that BBMP has released Rs.3,00,000/- to the defendant for 43 the purpose of putting up construction in his property. The point to be taken note of here is that the BBMP authorities after scrutinising the documents of the defendant relating to his property has granted permission to put up construction in his property covered under Ex.D1 sale deed and since he belongs to SC, ST community, as such they have granted Rs.3,00,000/- for the purpose of constructing residential house in his property. When such would be the case whatever contention taken by the plaintiff cannot be accepted.
26. The learned counsel for the plaintiff during the course of his arguments contended that the defendant in his cross-examination at page No. 5, 1 st para in the middle portion admitted that he has no objection in respect of the property claimed by the plaintiff in the present suit. So on the basis of the said evidence 44 given by DW1 in his cross-examination he contended that the suit of the plaintiff is required to be decreed. So far as the said contention of the learned counsel for the plaintiff it can be said that no doubt the defendant in his cross-examination has stated as stated above, but it does not mean that the property wherein the defendant has put up construction is the same property as claimed by the plaintiff in the plaint suit 'B' schedule.
27. The contention of the learned counsel for the plaintiff that the suit of the plaintiff is required to be decreed cannot be accepted. Apart from that though the plaintiff contending that the defendant has encroached a portion of the 'A' schedule property muchless the suit schedule property, but in proof of the same he has not examined any witness who are staying nearby the suit schedule property. So also 45 the plaintiff has not made any attempt to prove the alleged factum of encroachment by the defendant in the manner known to law. Per contra the very documents produced by the defendant at 'D' series would show that she having purchased the suit schedule property under Ex.D1 sale deed has put up construction in her property by obtaining permission from the concerned authorities and also the concerned authorities by considering the factum that the defendant is belonged to SC, ST community has granted Rs.3,00,000/- for the purpose of construction of residential house in their property and even the said fact has been admitted by PW1 in his cross- examination as referred above. When that would be the case whatever the contention taken by the plaintiff cannot be accepted. As it is already stated above the plaintiff has filed the present suit seeking 46 the relief of declaration and possession of alleged suit 'B' schedule property. During the pendency of the present suit the plaintiff has sold portion of suit 'A' schedule property in favour of one Muddu Mahadeva under Ex.P9 sale deed. When such would be the case the question of declaring the plaintiff is the absolute owner of entire extent of property shown in plaint 'A' schedule property does not arise at all. As because the plaintiff now is not in possession of the entire extent of 'A' schedule property, i.e., measuring east to west 50 feet and north to south 20 feet. So also the evidence on record would show that absolutely there is no acceptable evidence to show the alleged encroachment by the defendant in the portion of 'A' schedule property, muchless the suit 'B' schedule property the question of directing the defendant to 47 handover the possession of the said portion to the plaintiff does not arise at all. So by considering the over all oral and documentary evidence on record this court is of the opinion that the plaintiff has failed to prove issue No. 1 and 2. Accordingly issue No. 1 and 2 are answered in the Negative.
28. Issue No. 3: In view of my findings to issue No. 1 and 2, the plaintiff is not entitled to any reliefs muchless the reliefs as sought by him. Accordingly issue No. 3 is answered in the Negative.
29. Issue No.6: In view of my findings to the above issues, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed.48
No order as to cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in the open court on this the 22nd day of May 2020.) (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE Witnesses examined for the plaintiff/s :
PW1 - D.Rakesh Sharma Witness examined for the defendant/s :
DW1 - Parvathi Documents marked for the plaintiff/s :
Ex.P1 - Gift deed dated 21.3.2013
Ex.P2 - Rectification deed dated 24.5.2013
Ex.P3 - 2 RTCs
Ex.P4 - Complaint copy
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Ex.P5 - Complaint given to BBMP
Ex.P6 - Reply given by BBMP
Ex.P7 - CD
Ex.P8 - certified copy of sale deed dated
22.1.2013
Ex.P9 - certified copy of sale deed dated
29.1.2018
Ex.P10 - certified copy of gift deed
Documents marked for the defendant/s :
Ex.D1 - Registered sale deed dated 8.8.2011 Ex.D2 - Job card given by BBMP Ex.D3 - Rough sketch given by BWSSB Ex.D4 - Document regarding electricity connection given by KEB Ex.D5 - Document regarding water connection Ex.D6 - Application given for water and drainage connection Ex.D7 - 5 Tax receipts Ex.D8 - Demand notice Ex.D9 - Affidavit Ex.D10 - 7 KEB bills 50 Ex.D11 - 4 water bills Ex.D12 - Certified copy of partition deed Ex.D13 - Certified copy of plaint in O.S.No.4498/2013 Ex.D14 - Certified copy of plaint in O.S.No.4389/2013 Ex.D15 - Certified copy of plaint in O.S.No.5558/2015 Ex.D16 - Certified copy of plaint in O.S.No.2666/2016 Ex.D17 - Certified copy of plaint in O.S.No.3053/2016 Ex.D18 - certified copy of plaint in O.S.No.7608/2016 (Sadananda M.Doddamani) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
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By complying guidelines given by
at para No.31 of the revised
orders plan issued by the Hon'ble
High Court of Karnataka,
Bengaluru dated 3.5.2020 and as
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per circular dated 11.05.2020 of
District Court bearing
No.RPS(CCC)TO.NO.10/2020,
order is pronounced vide the
following:
Judgment pronounced in the open
court (vide separate detailed
Judgment)
ORDER
The suit of the plaintiff is
hereby dismissed.
No order as to cost.
Draw decree accordingly.
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
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