Bangalore District Court
) Smt. Sandhya L.B W/O P. Krishna Prasath vs ) Bruhath Bangalore Mahanagara Palike on 13 April, 2022
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.25172/2014
Dated this 13th day of April 2022
Plaintiffs:- 1) Smt. Sandhya L.B W/o P. Krishna Prasath,
Aged about 31 years, R/at Flat No.301,
"Roma Pearl", Chinnappanahalli,
K.R.Puram Hobli, Bangalore East Taluk.
(Rep by Sri Prakash T. Hebbar, Advocate)
V/S
Defendant: 1) Bruhath Bangalore Mahanagara Palike,
Hudson Circle, Nrupatunga Road,
Bengaluru560009,
Represented by its Commissioner.
2) The Assistant Executive Engineer,
Bangalore Bruhath Mahanagara Palike,
Mahadevapura SubDivision,
Mahadevapura Range, Bangalore.
3) The Deputy Commissioner,
Bangalore Urban District,
Kempe Gowda Road,
Bangalore560 009.
4) The Tahsildar,
Bangalolre East Taluk,
Judgment 2 OS.No.25172/2014
Krishnarajapuram, Bangalore.
The State of Karnataka,
5) Revenue Department,
M.S. Building, 5th Floor,
Dr. Ambedkar Road, Bangalore.
Represented by its Secretary.
(D1&D2 - by Sri M.N., Advocate,
D3 to D5 - Exparte)
Date of Institution of the suit 30/01/2014
Nature of the (Suit or pro-note, suit Permanent Injunction
for declaration and possession, suit
for injunction, etc.)
Date of the commencement of 04/12/2014
recording of the Evidence.
Date on which the Judgment was 13/04/2022
pronounced.
Year/s Month/s Day/s
Total duration 08 02 13
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:JUDGMENT:
The plaintiff filed suit against defendants for Permanent Injunction.
Judgment 3 OS.No.25172/2014
2. The brief facts of plaint averments is as under:
The plaintiff submits that immovable property being site bearing No.36-10/1-1, New No.4 Khatha No.6, 7, 13 situated at Chinnappanahalli Village, K.R.Puram Hobli, Bangalore East Taluk was owned and possessed by H. Venkatesha Reddy S/o late H.M. Hanuma Reddy, which was her vendor's ancestors' property. H. Venkatesha Reddy sold 4 different sites totally measuring 69 Feet x 35 Feet to 1) Dr. T.N.Achaiah, 2) Chenanda Nirmala Mudapa, 3) P.M. Achaiah and 4) P.G.Muthappa under different sale deeds on 14/12/1993 and from the date of execution of said sale deeds said owners were put in possession of property and Khatha in respect of the said properties was also transferred in the names of respective holders and they have been paying property taxes to said properties. The above said property holders came to an understanding to consolidate and to develop composite property and to construct residential apartment building and to share developed units according to size of their properties. With Judgment 4 OS.No.25172/2014 said concept all above said owners approached M/s Roma Builders and Developers and to formulate scheme to develop composite property and to construct residential apartment building in the said composite property. The said composite property is suit schedule 'A' property.
:SUIT SCHEDULE 'A' PROPERTY:
All that piece and parcel of the property measuring East to West 207 Feet and North to South 35 Feet in all measuring 7,245 Square Feet or thereabout, situated at Chinnappanahalli, K.R.Puram Hobli, Bangalore East Taluk with existing apartments building known as Roma Pearl Apartments consisting of stilt floor, ground floor, first floor, second floor as well as terrace floor bounded by East: Road, West: Property belongs to Chitra, North: Road, South :Private Property.
Judgment 5 OS.No.25172/2014 The plaintiff further submits that after negotiating various terms of development with said developer, Joint Development Agreement came to be executed by and between all above said properties owners and adjacent property holders on 13/04/2005 and said developer incorporating various terms of development and the same was duly registered on 13/04/2005. M/s Roma Builders and Developers obtained various statutory clearances from the statutory authorities including the defendants permitting the said developer to construct residential apartment building in 'A' schedule property. The defendants No.1 and 2 have also sanctioned plan for construction of building and approved provisions made by plaintiff's developers for sanitary, water, storm water drain etc., vide sanction plan bearing No.001/2005-
06. Based on said sanctioned plan defendants No.1 and 2 have approved construction of stilt floor, ground floor, first floor, second floor as well as terrace floor as per the area permitted and as reflected in the said sanctioned plan.
Judgment 6 OS.No.25172/2014
3. The plaintiff further submits that after obtaining various statutory clearances and the sanctioned plan, said developers constructed apartment building known as Roma Pearl Apartments in accordance with sanctioned plan. That said apartment building was constructed after obtaining all statutory clearances and sanctioned plan given by defendants and construction of building was completed in the year 2007 and are provided with all civic amenities like electricity, water, etc. According to sharing agreement between developer and above said owners Flat No.301 is allotted to share of Developer i.e., M/s Roma Builders and Developers. All the above said owners have jointly executed GPA in favour of T.R.L.Padmavathi, based on GPA T.R.L. Padmavathi has executed registered sale deed in favour of Vikas Mishra and Shika Guptha jointly on 16/06/2007. The said Vikas Mishra and Shika Guptha have sold Flat No.301 in favour of her (plaintiff) and her husband P.Krishna Prasath jointly on 05/07/2012. The Flat No.301 situated on the 2 Floor of the Apartment building Judgment 7 OS.No.25172/2014 Roma Pearl constructed in the 'A' schedule property, which is suit schedule 'B' property mentioned in the plaint.
:SUIT SCHEDULE 'B' PROPERTY:
Flat No.301, Eler of the apartments building known as Roma Pearl Apartments, forming part and parcel of A Schedule Property, having a super built up area of 2375 Square Feet situated at Chinnappanahalli, K.R.Puram Hobli, Bangalore East Taluk with the existing apartments building known as Roma Pearl Apartments consisting of stilt floor, ground floor, first floor, second floor as well as terrace floor. The plaintiff further submits that she and her husband have became joint owners of 'B' schedule property, which forms part and parcel of the said Roma Pearl Apartment Building and the plaintiff and her husband have been residing in 'B' schedule Judgment 8 OS.No.25172/2014 property. That she is filing above suit representing her husband also as they are joint owners.
4. The plaintiff further submits that 'B' schedule property is assessed to property tax by defendants No.1 and 2 and she has been paying property tax to defendants 1 and 2 and she has paid property taxes in respect of the 'B' schedule property up to date.
The plaintiff further submits that 'A' schedule property was converted for non-agricultural residential use by collecting development charges by the then Municipal Council, Mahadevapura and defendants are aware of said fact. The defendant No.5 is State and defendants No.3 & 4 represents defendant No.5. The defendants 3 to 5 never raised any objections to change of land use from agricultural to residential at any point of time nor there is any mention about the existence of Nala or Rajakaluve in the Master Plan 2015 or revised Master Plan approved by planning authorities, who are competent to permit the land used in master plan. The defendants No.1 and 2 Judgment 9 OS.No.25172/2014 have been frequenting 'A' schedule property and have threatened plaintiff that Roma Pearl Apartments where 'B' Schedule Property is situated is portion of Raja Kaluve/Nala and that 'B' schedule property forms part of said Raja Kaluve/Nala and that therefore they would demolish B Schedule property being portion of said Roma Pearl Apartments building. The defendants 3 to 5 have also claimed that 'B' schedule property being portion of said Roma Pearl Apartments building forms part of Nala and that therefore they have also joined hands with defendants No.1 and 2 in holding out threats of demolition of said Roma Pearl Apartments building which includes suit schedule 'B' property. The revenue documents produced by plaintiff clearly show that there is no existence of any Nala or any Government property reserved for public purpose in composite property which forms part of Sy.No.10/1 of Chinnappanahalli. That once competent authorities being planning authorities have sanctioned building plan, permitting construction in terms of master plan prepared strictly Judgment 10 OS.No.25172/2014 in conformity with rules and regulations framed, it is not open for defendants to now hold out any threats on the premise that there existed Nala in portion of the 'A' schedule property, that too after completion of said apartment building in 'A' schedule property several years ago. The defendants having permitted construction of apartment building for residential use under said sanctioned plan and after having sanctioned all the civic amenities and having not objected to alleged existence of any Nala or Government property reserved for public purpose cannot now contend that composite property forms part of Nala and that therefore said apartment building is required to be demolished.
5. The plaintiff further submits that in revised master plan for the Year 2015 composite property is shown to be meant for residential use and existence of Nala or any other public property is not shown to be existing there. That once master plan is prepared indicating the existence of any road, drains, streets, etc., and particularly, when planning authority, at an undisputed point Judgment 11 OS.No.25172/2014 of time has approved master plan of the lands wherein no such Nala or a public property is shown to be existing, it is not open for defendants after such distance of time to contend that schedule property forms part of Nala. That at the time of approval of master plan in the year 2015 and revised master plan objections were called who are interested to oppose approval of said master plan. However defendants have not filed any objections to approval of said master plan or revised master plan showing alleged existence of any road, Nala, graveyard or any other public utilities in Sy.No.10 of Chinnappanahalli. However as there is no such mention of existence of Nala in the said master plan for the year 2015 or the revised master plan in Sy.No.10 (10/1, 10/2 or 10/3), the defendants cannot claim that 'A' schedule property forms part of Nala. The threats held out by defendants on the above basis is wholly illegal and without any basis. In view of the above facts threats held out by defendants are Judgment 12 OS.No.25172/2014 baseless and indicates only belated highhandedness of defendants for wrongful gain.
6. The plaintiff further submits that officials of defendants came near suit schedule properties on 30/10/2013 and again on 17/01/2014 around 11.30 a.m. and subsequently, and held out threats of demolition of existing apartments building known as Roma Pearl Apartments standing in 'A' schedule property and have also threatened plaintiff that 'B' schedule Flat consisting in the said apartments building in 'A' schedule property will also be demolished and possession will be taken over by defendants as according to them it forms part of Nala which belongs to Government. There is serious and imminent threat of demolition of said apartment building wherein 'B' schedule property is situated and if defendants are not restrained by way of permanent injunction, officials of defendants would come again any time and demolish 'B' schedule property standing in 'A' schedule Judgment 13 OS.No.25172/2014 property and in that eventuality, plaintiffs only roof over his head, over which plaintiff has invested his life savings will be on street.
7. The plaintiff further submits that cause of action to file suit arose on 30/10/2013, 17/01/2014 and subsequently when the officials of defendants came near suit schedule properties and threatened her that suit schedule properties forms part of Nala which is allegedly public property and that they would come again with heavy equipment for carrying out demolition of her 'B' schedule property standing in 'A' schedule property which houses the 'B' schedule property. The plaintiff prays decree the suit for permanent Injunction restraining defendants, their servants, agents, officials or any person or persons claiming through or under them either individually or collectively from interfering with the peaceful possession and enjoyment of her 'B' schedule property or any portion thereof and/or demolition of 'B' schedule property or any portion thereof, in any manner whatsoever and/or Judgment 14 OS.No.25172/2014 dispossessing her from 'B' schedule property or any portion thereof in any manner and prays to award the cost of this suit.
8. The defendants No.1 and 2 appeared filed written statement. The defendants No.3 to 5 not appeared and placed exparte. The defendants No.1 and 2 in their written statement submits that suit is no maintainable either in law on facts of the case and same is liable to be dismissed. There is no cause of action and even otherwise also it is vexatious, frivolous and created for purpose of unduly harassing Corporation machinery. The suit is not corroborated by any documents. This court has no jurisdiction to decide the subject matter against these defendants on the ground that the suit is not maintainable for non-issuance of statutory notice. The property in which plaintiff claims injunctive relief with other consequential reliefs, earlier not within the jurisdiction of B.B.M.P, hence issuing of license as alleged in the plaint has no legal relevancy Office of the B.B.M.P never issued any license if there is any construction it is un-
Judgment 15 OS.No.25172/2014 auththorized construction. The Chinnappanahalli Village,
K.R.Puram, Hobli comes under the jurisdiction of Karnataka Town and Country Planning Act of 1961. On 01/01/1965 there is a Gazette Notification. In view of the fact planning authority was authority for development of project in the said area. Now K.R. Puram CMC comes within the jurisdiction of B.B.M.P. The defendant further submits that suit schedule property is piece of Raja Kaluve flowing in the area, it was affirmed even during survey which is conducted by Survey Department. In view of the fact if there is any construction it is unauthorized construction. The entire construction is illegal and further the place is marked to demolish the encroached portion.
9. The defendant further submits that plaint averments that the plaintiff is the absolute owner of the plaint schedule property purchased under registered sale deed for valuable consideration, further plaintiff approached the M/s Roma Builder and Developer to formulate scheme the Developer and to construct Judgment 16 OS.No.25172/2014 residential apartment, in view of the fact that Developer obtained various statuary clearness and office of defendants No.1 and 2 sanctioned plan accordingly schedule property was constructed are no legal relevancy. Further plaint averments that tax is paid to the B.B.M.P, further "A schedule property was converted for Non agricultural purpose, the averments are not within knowledge of office of defendants No.1 & 2. Further averments that office of the defendants No.1 and 2 threatened plaintiff saying that "B" schedule property is situated in portion of Rajakaluve, the averments may be true. The plaintiff in which claims injunctive relief is part of Rajakaluve and it is Government Property. The further averments that defendants not objected to put up apartment building now trying to demolish the property are no legal relevancy. Just because of there is no objection to the approval of the master plan it does not mean that Government property should sail to plaintiff. There is no need to the officials of defendant to give threat as alleged in the plaint. Since property Judgment 17 OS.No.25172/2014 is Government/B.B.M.P property there is no need to threat. That Mahaadevapura Muncipal Council had no power to convert agricultural land to non-agricultural purpose. It is false that there is no extent of any Nala or Government property near the schedule property. Further there is no high handedness for the purpose of wrongful gain by defendants No. 1 and 2 as alleged in the plaint. The defendant prays to dismiss the suit.
10. The plaintiff filed rejoinder to written statement. The plaintiff denied para No.1 of written statement. With reference to para-2(1) of written statement the plaintiff submits that suit being one for injunction, statutory notice is not mandatory as the suit is not for declaration, however plaintiff filed IA No.1 seeking exemption U/s 482(1A) of Karnataka Municipal Corporation Act, 1976. Therefore said contention does not survive for consideration. Further para-2(2) does not survive for consideration, because in para-16 of plaint the plaintiff has clearly disclosed cause of action. With reference to para-3 of the Judgment 18 OS.No.25172/2014 written statement, the defendants No.1 & 2 categorically admit therein that before the suit schedule property came within the territorial limits of the BBMP, the same was under
Krishnarajapuram CMC and that now Krishnarajapuram CMC areas come under the jurisdiction of the BBMP. The BBMP authorities have now issued the A Khatha also in favour of the plaintiff in respect of the 'B' schedule property. The BBMP authorities have also collected the property tax from plaintiff. Therefore defendants No.1 & 2 cannot contend that BBMP authorities have not recognized plaintiff with reference to 'B' schedule property. The plaintiff denies contention of defendants No.1 & 2 that the suit property is piece of Raja Kaluve flowing in the area and denied that construction of apartment building in the 'A' schedule property, which includes 'B' schedule property is unauthorized. The plaintiff has also produced comprehensive development plan (CDP) relating to Channappanahalli Village, Krishnarajapuram Hobli, Bangalore East Taluk, where in there is Judgment 19 OS.No.25172/2014 absolutely no mention in the CDP about existence of any Raja Kaluve. Therefore CDP supersedes Village Map regarding existence of any Rajakaluve, road etc. Therefore sole contention taken by defendants No.1 & 2 that there exists Raja Kaluve does not survive for consideration in view of Section 8 of Karnataka Town & Country Planning Act. Therefore allegations of defendants No.1 & 2 that entire construction is illegal and that the same is required to be demolished etc., are false. The plaintiff denied para-4, (a), (b), & (c) of written statement. The plaintiff prays to decree the suit as prayed in the plaint.
11. On the basis of above pleadings following Issues are framed;
:ISSUES:
1) Whether plaintiff proves that she was in lawful possession and enjoyment of the suit schedule 'B' property as on the date of the suit?
Judgment 20 OS.No.25172/2014
2) Whether the plaintiff proves that the alleged interference of defendant and alleged threat of defendant to dispossess her from the suit schedule property?
3) Whether the plaintiff proves that she is entitle to the relief of as sought for in the plaint?
4) What order or decree?
12. The plaintiff examined as PW.1 and marked ExP1 to ExP13. The Assistant Executive Engineer of defendant examined as DW.1 and marked ExD1 to ExD5.
13. The plaintiff and defendants counsels argued. Perused the records.
14. My findings to the above Issues are as under:-
Issue No.1: In Negative Issue No.2: In Negative Issue No.3: In Negative Issue No.4: See final order for following:
Judgment 21 OS.No.25172/2014
:REASONS:
15. Issues No.1 to 3 :
The plaintiff Sandhya L.B W/o P. Krishna Prasath filed her affidavit in lieu of examination in chief as PW.1 and deposed evidence that she filed suit against defendants seeking permanent injunction against the illegal interference and threat of demolition of the immovable property and for such other equitable reliefs. The suit schedule property site bearing No.36-10/1-1, New No.4 Khatha No.6, 7. 13 situated at Chinnappanahalli Village, K.R. Puram Hobli, Bangalore East Taluk was owned and possessed by H. Venkatesha Reddy S/o late H.M. Hanuma Reddy, which was the plaintiffs vendor's ancestors' property. That H. Venkatesha Reddy sold 4 different sites totally measuring 69 Feet x 35 Feet to 1) Dr. T.N. Achaiah, 2) Smt. Chenanda Nirmala Mudapa, 3) P.M. Achaiah and 4) P.G. Muthappa under different sale deeds executed on 14/12/1993. On the date of execution of said sale deeds, said owners were put in possession of property. The Judgment 22 OS.No.25172/2014 Khatha in respect of said properties was also transferred in the names of respective holders and they have been paying property taxes to said properties. The above said property holders came to an understanding to consolidate properties and to develop composite property and to construct residential apartment building and to share the developed units according to the size of their properties. With the said concept said owners approached M/s Roma Builders and Developers and to formulate scheme to develop composite property and to construct residential apartment building in said composite property. After negotiating various terms of development with said developer a Joint Development Agreement came to be executed by and between all above said property holders on 13/04/2005.
16. The PW.1 further deposed evidence that M/s Roma Builders and Developers obtained various statutory clearances from statutory authorities including defendants permitting said Judgment 23 OS.No.25172/2014 developer to construct residential apartment building in 'A' schedule property. The defendants No.1 and 2 have also sanctioned plan for construction of building and approved provisions made by her Developers for sanitary, water, storm water drain etc., vide sanction plan bearing No.001/2005-06.
Based on said sanctioned plan defendants No.1 and 2 have approved construction of stilt floor, ground floor, first floor, second floor as well as terrace floor, as per the area permitted and as reflected in the said sanctioned plan. After obtaining various statutory clearances and sanctioned plan, said developers constructed apartment building known as Roma Pearl Apartments in accordance with sanctioned plan. The said apartment building was constructed after obtaining all statutory clearances and sanctioned plan given by defendants and construction of building was completed in the year 2007 and are provided with all civic amenities like electricity, water, etc. According to sharing agreement between the developer and the Judgment 24 OS.No.25172/2014 above said owners the Flat No.301 is allotted to the share of the Developer i.e., M/s. Roma Builders and Developers. All the above said owners have jointly executed the GPA in favour of T.R.L.Padmavathi, based on the GPA T.R.L. Padmavathi has executed registered sale deed in favour of Vikas Mishra and Shika Guptha on 16/06/2007. The said Vikas Mishra and Shika Guptha have sold Flat No.301 in her favour and her husband P. Krishna Prasath jointly on 05/07/2012. The Flat No.301, situated on the 2nd Floor of Apartment building Roma Pearl constructed in the 'A' schedule property is called as 'B' schedule property. Thus she and her husband have became the joint owners of 'B' schedule property, which forms part and parcel of the said Roma Pearl Apartment Building and she and her husband have been residing in 'B' schedule property.
17. The PW.1 further deposed evidence that 'B' schedule property is assessed to Property Tax by defendants No.1 and 2 Judgment 25 OS.No.25172/2014 and she has been paying the property tax to the defendants No.1 and 2 in respect of the 'B' & 'C' schedule properties, up to date. That 'A' schedule property was converted for non-agricultural residential use by collecting development charges by the then Municipal Council, Mahadevapura and the defendants are aware of the said fact. The defendant No.5 is State and defendants No.3 & 4 represents the defendant No.5. The defendants No.3 to 5 never raised any objections to change of land use from agricultural to residential at any point of time nor there is any mention about the existence of the Nala or Rajakaluve in the Master Plan 2015 or the Revised Master Plan, approved by the planning authorities, who are competent to permit the land use in the Master Plan. The defendants No.1 and 2 have been frequenting 'A' schedule property and have threatened her that Roma Pearl Apartments where 'B' Schedule Property is situated is a portion of Raja Kaluve/Nala and that the 'B' schedule property forms part of the said Raja Kaluve/Nala and that Judgment 26 OS.No.25172/2014 therefore, they would demolish B Schedule property being portion of said Roma Pearl Apartments building. The defendants No.3 to 5 have also claimed that 'B' & 'C' schedule properties being a portions of said Roma Pearl Apartments building forms part of Nala and that therefore, they have also joined hands with defendants No.1 and 2, in holding out the threats of demolition of the said Roma Pearl Apartments building which includes B schedule property. That the revenue documents produced by her clearly show that there is no existence of any Nala or any Government property reserved for public purpose in the composite property which forms part of Sy.No.10/1 of Chinnappanahalli.
18. The PW.1 further deposed evidence that once competent authorities being the Planning Authorities have sanctioned building plan permitting the construction in terms of Master Plan prepared strictly in conformity with Rules and Regulations Judgment 27 OS.No.25172/2014 framed, it is not open for the defendants to now hold out any threats on premise that there existed Nala in portion of 'A' schedule property, that too after completion of said apartment building in 'A' schedule property several years ago. The defendants having permitted construction of apartment building for residential use under the said sanctioned plan and after having sanctioned all civic amenities and having not objected to the alleged existence of any Nala or Government property reserved for public purpose cannot now contend that composite property forms part of Nala and that therefore, said apartment building is required to be demolished. That in revised Master Plan for the Year 2015, composite property is shown to be meant for residential use and existence of Nala or any other public property is not shown to be existing there. That once Master Plan is prepared indicating existence of any road, drains, streets, etc., and particularly, when Planning Authority at an undisputed point of time has approved Master Plan of the lands wherein no such Judgment 28 OS.No.25172/2014 Nala or public property is shown to be existing, it is not open for defendants after such distance of time to contend that schedule property forms part of Nala. At the time of approval of Master Plan for the year 2015 and revised Master Plan, objections were called for from all quarters who are interested to oppose approval of said Master Plan. However defendants have not filed any objections to approval of said Master Plan or revised Master Plan showing alleged existence of any road, Nala, graveyard or any other public utilities in Sy.No.10 of Chinnappanahalli. However as there is no such mention of existence of "Nala" in said Master Plan for year 2015 or revised Master Plan in Sy.Nos.10 (10/1, 10/2 or 10/3), defendants cannot claim that 'A' schedule property forms part of Nala.
19. The PW.1 further deposed evidence that officials of defendants came near the suit schedule properties on 30/10/2013 and again on 17/01/2014 around 11.30 a.m. and subsequently, Judgment 29 OS.No.25172/2014 and held out threats of demolition of the existing apartments building, known as Roma Pearl Apartments, standing in 'A' schedule property and have also threatened her that 'B' schedule property consisting in the said apartments building in 'A' schedule property will also be demolished and possession will be taken over by defendants as according to them it forms part of Nala which belongs to the Government. There is serious and imminent threat of demolition of said apartment building wherein 'B' schedule property is situated and if the defendants are not restrained by way of Permanent Injunction, the officials of the defendants would come again any time and demolish the 'B' schedule property standing in 'A' schedule property and in that eventuality, the roof over his head, over which she has invested her life savings, will be on streets. Therefore she filed this suit for permanent injunction to protect her property and possession over the same. The entire action on the part of the defendants and their officials are illegal, highhanded and without any legal basis.
Judgment 30 OS.No.25172/2014 Her right of construction over 'B' schedule property is constitutional right as well as human rights, guaranteed under the Constitution of India. Any violation of such rights would attract far reaching legal consequences. That under aforesaid circumstances and in view of the imminent threat held out by the defendants of illegal interference and the threat of demolition of the said apartment building where 'B' schedule property are situated, she is entitled to equitable relief of injunction against the demolition, dispossession and illegal interference, at the hands of the defendants and their officials. The defendants have also initiated criminal proceedings against her under an erroneous view that 'A' schedule property farms part of Rajakaluve/Nala. In support of oral evidence PW.1 marked ExP1 to ExP13.
20. That K. Kuberappa S/o Late Mahadevappa, Assistant Executive Engineer, Office of Commissioner, Bruhath Bengaluru Judgment 31 OS.No.25172/2014 Mahanagara Palike, Bengaluru filed his affidavit in lieu of examination in chief as DW.1 and deposed evidence that plaintiff filed suit seeking for permanent injunction against defendants, their servants, agents, officials or any persons or persons claiming through or under them either individually or collectively from interfering with either peaceful possession and enjoyment of the plaintiff over the 'B' schedule property or any portion threreof and/or demolition of 'B' schedule property or any portion thereof in any manner whatsoever and/or dispossessing the plaintiff from 'B' schedule property or any portion thereof, in any manner whatsoever and to pass such other relief. The suit filed by plaintiff is not maintainable against defendants No.1 & 2 either in law or on facts. There is no cause of action and even otherwise also it is vexatious, frivolous and created for purpose of harassing corporation machinery. The suit is not corroborated by any documents.
Judgment 32 OS.No.25172/2014
21. The DW.1 further deposed evidence that court has no jurisdiction to decide the subject matter against these defendants on the ground that suit is not maintainable for non-issuance of statutory notice. There is no cause of action against defendanta No.1 and 2. The property in which plaintiff claims injunctive relief with other consequential reliefs, earlier not within jurisdiction of BBMP. Hence issuing of license as alleged in the plaint has no legal relevancy office of BBMP never issued any license if there is any construction it is unauthorized construction. That Chinnappanahalli Village, K.R. Puram Hobli comes under jurisdiction of Karnataka Town and Country Planning Act of 1961. On 01/01/1965 there is Gazette Notification. In view of fact planning authority was authority for development of project in the said area. Now K.R. Puram CMC comes within the jurisdiction of BBMP. The suit schedule property is piece of the Raja Kaluve flowing in the area, it was affirmed even during survey which is conducted by the Survey Judgment 33 OS.No.25172/2014 Department. In view of fact if there is any construction it is unauthorized construction. The entire construction is illegal and further the place is marked to demolish the encroached portion. The plaint averments that plaintiff is absolute owner of the plaint schedule property purchased under registered sale deed for valuable consideration, further plaintiff approached M/s Roma Builders and Developers to formulate scheme to develop and to construct residential apartment. In that view Developer obtained various statutory clearness and office of defendants No.1 and 2 sanctioned the plan accordingly, the schedule property was constructed all these averments has no legal relevancy and no records is produced to show that defendants No.1 and 2 had sanctioned the plan.
22. The DW.1 further deposed evidence that tax is paid to BBMP and 'A' schedule property was converted for non- agricultural purpose are not within the knowledge of office of Judgment 34 OS.No.25172/2014 defendants No.1 & 2. Further averments that office of the defendants No.1 & 2 informed the plaintiff saying that 'B' schedule property situated in portion of Raja Kaluve are all true. The portion of property marked and plaintiff on which claims injunctive relief is a part of Raja Kaluve and it is a Government Property. The averments that defendants not objected to put up apartmental building now trying to demolish the property are all totally false. Just because of there is no objection to approval of the master plan, it does not mean that Government property should sail to plaintiff. Hence allegation against office of defendants No.1 & 2 regarding interference has no legal relevancy. There is no need to officials of defendant to give threat as alleged in plaint, since property is Government/BBMP property. That Mahadevapura Municipal Council had no power to convert agricultural land to non-agricultural purpose. It is false that there is no extent of any Nala or Government property near the schedule property. Further there is no high handedness for Judgment 35 OS.No.25172/2014 purpose of wrongful gain by defendants No.1 & 2 as alleged in the plaint. The DW.1 prays to dismiss suit of plaintiff. In support of oral evidence DW.1 marked the documents ExD1 to ExD5.
23. The burden is on plaintiff to prove that she is owner in lawful possession and enjoyment of suit schedule 'A' property and suit schedule 'B' property is a portion of Rajakaluve comes under the Roma Pearl Apartments, but the defendant Authority trying to demolish said 'B' schedule property and causing interference to her and dispossess her from suit schedule 'B' property. The plaintiff examined as PW.1 and deposed evidence as discussed above and in support of oral evidence PW.1 marked ExP1 to ExP13. The ExP1 is photo and ExP2 is C.D of photo marked as they belongs to schedule property and ExP2 is marked subject to display of C.D before court by making necessary arrangements in case of necessity. The ExP3 is registered sale deed dated 05/07/2012 regarding purchase of property mentioned Judgment 36 OS.No.25172/2014 in the schedule by plaintiff and P. Krishna Prasath from Vikas Misra and Shikha Gupta. The ExP4 is Form 'B' Property Register Extract regarding Flat No.301, Dodda Nekkundi Ward No.85, Chinnappanahalli Circle in the name of plaintiff and Krishnaprasad by rounded off the names of Vikas Mishra and Shikha Gupta. The ExP5 is certified copy of Joint Development Agreement between T.N. Achaiah and others with M/s Roma Builders & Developers relating to property mentioned in the schedule. The ExP6 is certified copy of Sanctioned Plan for construction of the building which is not properly in readable condition. The ExP7 is Receipt issued by BWSSB regarding water charges. The ExP8 is certified copy of sale deed dated 16/06/2007 executed by Dr. T.N.Achaiah, Chenanda Nirmala Mudappa, P.M. Achaiah and P.G. Muthappa as first party seller through Roma Builders & Developers represented by Managing Partner T.R.L. Padmavathi developer/confirming party in favour of Vikas Misra & Shikha Gupta relating to schedule 'B' property Judgment 37 OS.No.25172/2014 mentioned in the schedule. The ExP9 is certified copy of Comprehensive Development Plan and ExP10 is CDP Plan of Sy.No.10 of Chinnappanahalli Village. The ExP11 to ExP13 are photographs and C.D marked as they belong to house of plaintiff.
24. On the contrary the Assistant Executive Engineer of BBMP the defendant No.2 Authority by name Kuberappa examined as DW.1 and deposed the evidence as discussed above and in support of oral evidence marked the documents ExD1 to ExD5. The ExD1 is Authorization given by BBMP Commissioner to DW.1 for deposing the evidence. The ExD2 is certified copy of the Judgement and Decree in OS.No.3747/2014 filed by one Rajakukmar against BBMP in respect of the neighboring property of the suit schedule property. The ExD3 is the survey sketch of Sy.No.14 of Chinnappanahalli Village. The ExD4 is CDP Plan of Chinnappanahalli Village. The ExD5 is certified copy of the order in W.P.No.43278/2016 of Hon'ble High Court Judgment 38 OS.No.25172/2014 of Karnataka, Bengaluru which is filed by Nama Krishnaiah against BBMP.
25. The PW.1 in her examination in chief deposed evidence that site bearing No.36-10/1-1, New No.4, Katha No.6, 7 & 13 situated at Chinnappanahalli Village, K.R. Puram Hobli, Bengaluru East Taluk was owned and possessed by H. Venkatesha Reddy S/o late H.M. Hanuma Reddy and said H. Venkatesha Reddy sold 4 different sites totally measuring 69 Feet x 35 Feet to 1) Dr. T.N.Achaiah, 2) Chenanda Nirmala Mudapa,
3) P.M. Achaiah and 4) P.G.Muthappa under different sale deeds and thereafter the said four purchasers came to an understanding and consolidate site to develop composite property and to construct residential apartment building and approached M/s Roma Builders and Developers and Joint Development Agreement came to be executed between them on 13/04/2005. Thereafter M/s Roma Builders and Developers obtained various Judgment 39 OS.No.25172/2014 statutory clearances from the statutory authority including the defendants and permitted the said Developers to construct a residential apartment building in composite four sites of the said four owners which is the 'A' schedule property. Further the said Builders obtained sanctioned plan for construction of the building in the suit schedule 'A' property from the defendants No.1 & 2 and constructed the building and apartment known as Roma Pearl Apartment in accordance with the sanctioned plan. Further the said Builder executed GPA in favour of T.R.L. Padmavathi for sale of the flats in the apartment and said T.R.L. Padmavathi sold flat No.301 situated in second floor of the Roma Pearl Apartment to Vikas Mishra and Shika Guptha on 05/07/2012 which is suit schedule 'B' property and thereafter she (plaintiff) purchased the suit schedule 'B' property from said Vikas Mishra and Shika Guptha. The contention of plaintiff that she is in possession and enjoyment of suit schedule 'B' property. But now the defendants No.1 & 2 threatening that Roma Pearl Judgment 40 OS.No.25172/2014 Apartments where the 'B' schedule property is situated is a portion of Rajakaluve/Nala and the 'B' schedule property forms part of the said Rajakaluve/Nala and therefore they demolish the 'B' schedule property. Now the plaintiff prayer is to restrain the defendants by way of Permanent Injunction from interfering with the plaintiff's possession and enjoyment of the suit schedule 'B' property and demolishing the building. In support of oral evidence PW.1 marked the documents as discussed above.
26. Whereas the Assistant Executive Engineer of defendant No.2 office examined as DW.1 and in his examination-in-chief he deposed the evidence that the suit is not maintainable for non issuance of statuary notice. Further the plaintiff claims injunctive relief with other consequential relief, earlier not within the jurisdiction of BBMP. Hence issuing license as alleged in the plaint has no legal relevancy of the BBMP office never issued any license if there is any construction it is un-auththorized Judgment 41 OS.No.25172/2014 construction. The Chinnappanahalli Village, K.R.Puram, Hobli comes under the jurisdiction of Karnataka Town and Country Planning Act of 1961. On 01/01/1965 there is a Gazette Notification. In view of the fact planning authority was authority for development of project in the said area. Now K.R. Puram CMC comes within the jurisdiction of B.B.M.P. The suit schedule property is piece of Raja Kaluve flowing in the area, it was affirmed even during survey which is conducted by Survey Department. In view of the fact if there is any construction it is unauthorized construction. Therefore the contention of the defendants that if there is any construction in the schedule 'B' property it is unauthorized construction as the said area was notified for Rajakaluve. Then the burden is on the plaintiff to disprove the allegation of the defendants. The plaintiff has not produced the sanctioned plan obtained by M/s Roma Developer s for construction of apartment in suit schedule 'A' property from the Town Planning Authority. On this aspect the defendants Judgment 42 OS.No.25172/2014 counsel cross-examined PW.1 and the PW.1 deposed evidence that "We did not verify in the office of the BDA to ascertain as to whether the apartment was situated in the lake area. The suit schedule 'B' property totally measures 2375 sq.ft, the total build up area of apartment is 14150 sq.ft. Permission from Town Planning Authority to build the apartment has not been taken". The PW.1 further deposed evidence that "It is true to suggest that the entire building including suit schedule 'B' property is situated in Sy.No.10/1 of Chinnappanahalli Village. It is true to suggest that either our vendors or developers have not taken the approved plan from BBMP to construct the apartment building." Therefore from the evidence of PW.1 itself as discussed above it is crystal clear that the Developer of the suit schedule property have not obtained any sanctioned plan or permission from the concerned authority. Further the plaintiff has not lead evidence of authorized person of M/s Roma Builders. Further the plaintiff produced and marked ExP10 CDP plan. The plaintiff counsel cross-examined DW.1 relating to said plan ExP10 and in the Judgment 43 OS.No.25172/2014 cross-examination the DW.1 deposed evidence that "ಈಗ ನನಗಗ ತಗತತರಸಸತತರಸವ ನಪ.6 ಸಸಸಸಕಕನನ ಪಸಪನನನಸನ ಸಎಸಸ, ಚನನಪಪನಹಳಳರವರಸ ಮಸಡದಸದರಗ ಎಸದರಗ ಸಸಕಕಯಸ ಟಟನನಪಸಪನಸಗನಅಥಸರಟರವರ ಪರವಸನಗಗಯನಸನ ಪಡಗಯಲಸರದಗತ ಸಎಸಸರವರಸ ಸಸಸಸಕಕನನ ಪಸಪನನನಸನ ಕಗತಟಟದಸದರಗ ಅಸತ ಹಗತಳಸತಸತರಗ. ಬಗಸಗಳತರಸ ಮಹಸನಗರ ಪಸಲಕಗಗಸತ ಮದಲಸ ಸಟ ಮಸನಸಪಲನ ಕಟನನಲನ ಇತಸತ ಎಸದರಗ ಸರ. ದಸವಸ ಬ ಪಗಕಡತಸಲನ ಆಸತಯಸ ಭತ ಪರವತರನಗ ಆಗದಗಯತ ಇಲಪವತ ಅಸತ ನನಗಗ ಗಗತತತಲಪ. ವಲಗತಜನಮಸಸಪನಆಧಸರದ ಮತಲಗ ಸಟ ಡಗವಲಪನಮಸಟನ ಪಸಪನನನಸನ ಮಸಡಸತಸತರಗ ಎಸದರಗ ಸರ. ಈಗ ನನಗಗ ತಗತತರಸಸತತರಸವ ನಪ.10 ಸಡಪ ಪಸಪನನನಲಪ ಚರಸಡ, ರಸಗತ, ಪಸಕರ, ಕಮರರಯಲನ ಏರಯಸ ಮತಸತ ಇಸಡಸಟಸತಯಲನಏರಯಸ, ಕಕರ ಏರಯಸ, ರಗಸಡಗನಕಯಲನಏರಯಸ ಇತಸಸದಗಳನಸನ ವಲಗತಜನಮಸಸಪನನಗತತಡ ಮಸಡಸತಸತರಗ ಮತಸತ ಆ ಬಗಗಗ ಸಡಪನಲಪ ಕಸಣಸರಸತಸತರಗ ಎಸದರಗ ಸರ. ನಪ.10 ಅನಸನ ಬಡಎದವರಸ ಕಗತಟಟದಸದರಗ ಎಸದರಗ ಸರ. ನಪ.10 ರಲಪ ದಸವಸ ಬ ಷಗಡತಸಲನ ಆಸತಯಲಪ ರಸಜಕಸಲಸವಗ ಇಲಪ ಎಸದರಗ ಸರಯಲಪ. ದಸವಸ ಬ ಶಗಡತಸಲನ ಆಸತಯಲಪ ರಸಜಕಸಲಸವಗ ಹಸಯಸದ ಹಗತತಗದಗ . ನಪ.10 ರಲಪ ಸವಗರ ನಸ.10 ರಲಪ ರಸಜಕಸಲಸವಗ ಇದಗ. ಸಸಕಕಗಗ ವಕತಲರಸ ನಪ.10 ರಲಪ ರಸಜಕಸಲಸವಗ ಎಲಪದಗ ಅಸತ ತಗತತರಸಲಸ ಕಗತಳಸತಸತರಗ, ಸಸಕಕಯಸ ಆ ದಸಖಲಗಯಲಪ ಸರಯಸಗ ಕಸಣಸತತಲಪ ನಸನಸ ಅದಗತ ದಸಖಲಗಯನಸನ ನನನ ಸಸಕಕಕದಲಪ ಗಸರಸತಸದಗದತನಗ ಅದರಲಪ ನಗತತಡ ಹಗತಳಸತಗತತನಗ ಅಸತ ಹಗತಳಸತಸತರಗ. ನಸತರ ವಕತಲರಸ Judgment 44 OS.No.25172/2014 ಸಸಕಕಗಗ ನಡ-4 ನಸನ ತಗತತರಸದಸದರಗ ಸಸಕಕಯಸ ನಡ.4 ರಲಪ ರಸಜಕಸಲಸವಗ ತಗತತರಸದ ಭಸಗವನಸನ ನಡ.4(ಎ) ಅಸತ ಗಸರಸತಸಲಸಯತಸ. ಸದರ ರಸಜಕಸಲಸವಗ ಸಡಪ ಮಸಸಪನಪಪಕಸರ ಇದಗ." Therefore the DW.1 also marked ExD4 CDP plan wherein marked ExD4(a) as Rajakaluve. But to disprove ExD4 plaintiff has not produced any other specific documents. Further for construction of building in the suit schedule 'A' property M/s Roma Builders have not obtained any sanctioned plan as admitted by DW.1 in her evidence deposed as discussed above. Further the plaintiff has not produced any documents to show that earlier to construction of building in the 'A' schedule property M/s Roma Builders have obtained no objection from Town Planning Authority of BDA for construction in the suit 'A' schedule property and also not produced sanctioned plan issued by concerned authority for construction of building in the 'A' schedule property. The plaintiff has prima facie failed to prove that she is lawful owner of the schedule property, hence question of interference by defendants does not arise. Hence she is not Judgment 45 OS.No.25172/2014 entitle for relief of Permanent Injunction against defendants. The plaintiff failed to prove Issues No.1 to 3. Therefore I answer Issues No.1 to 3 in Negative.
27. Issue No.4 :
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff is hereby dismissed with cost.
Draw decree accordingly.
(Dictated to the stenographer, typed by him. Corrected on line in computer, taken printout, then again corrected, signed and pronounced by me in the open court on this 13th day of April 2022).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE :ANNEXURE:
WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 : Sandhya L.B W/o P. Krishna Prasath
Judgment 46 OS.No.25172/2014
DOCUMENTS MARKED FOR PLAINTIFF:
ExP1 : Photograph
ExP2 : CD
ExP3 : Sale Deed
ExP4 : Form 'B' property register
ExP5 : Certified copy of Joint Development Agreement
ExP6 : Certified copy of construction plan
ExP7 : Certified copy of receipts issued by BWSSB
ExP8 : Certified copy of sale deed
ExP9 : Certified copy of comprehensive development plan
ExP10 : CDP plan of Chinnappayanahalli Sy.No.10
ExP11&12: Photographs
ExP13 : C.D
WITNESSES EXAMINED FOR DEFENDANTS:
DW.1 : K. Kuberappa S/o Late Mahadevappa
[
DOCUMENTS MARKED FOR DEFENDANTS:
ExD1 : Authorization
ExD2 : Copy of Judgement & Decree in OS.No.3747/2014
ExD3 : Survey sketch relating to Sy.No.14
ExD4 : CDP Plan of Chinnappanahalli Village
ExD5 : Certified copy of order in W.P.No.43278/2016
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE.