Bangalore District Court
O.S./5440/2012 on 30 September, 2021
/1/ O.S.No.5440/2012
THE COURT OF XXXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, (CCH-40), BANGALORE CITY.
Dated on this the 30th day of September, 2021.
-: Present :-
Sri.Khadarsab, B.A, LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
Original Suit No. 5440/2012
Plaintiff :-
1. Kempegowda S/o. Nanjundaiah, 60
Years, R/o.No.540.
2. Gangadharaiah S/o.Dodda Huchappa,
54 Years, R/o.No.544.
3. Smt. Shanthamma D/o.Govinde
Gowda, 50 year, R/o.No.546.
4. Smt. Swetha D/o.Kempe Gowda, 35
Years, R/o.No.540.
5. K.R.Chandraiah S/o. Ramanna.
[Dead] By LRs :
5(a) K.Swetha wife of Late Chandraiah,
35 Years.
5(b) Puja D/o. Late Chandraiah, 17
Years, Represented by her natural
mother K.Swatha.
/2/ O.S.No.5440/2012
All are residents of 5th Main Road,
Govindaraja Nagar, Ward No.127,
Moodala Palya, Bengaluru - 560 076.
[By N.Raghupathy, Advocate]
/ VERSUS /
Defendants :-
1. The Commissioner, B.B.M.P.,
N.R.Road, Bengaluru - 560 002.
2. The Assistant Executive Engineer,
Ward No.127, B.B.M.P., Moodalapalya,
Govindarajanagar, Bengaluru - 72.
3. The Assistant Engineer, Ward No.127,
B.B.M.P., Moodalapalya, Govindaraja
Nagar, Bengaluru - 72.
4. M.Venkatesh S/o. K.Muniyappa,
Major, Door No.2, 10th Cross,
Sanjeevini Nagar, Moodalapalya,
Bengaluru - 560 072.
5. R.Ramachandra S/o. Ramaiah, Major,
No.501, 10th 'A' Cross, Sanjeevini
Nagar, Ward no.127, Moodala Palya,
Bengaluru - 560 072.
[Sri.N.R.J., Advocate for D.1 to 3
Sri.S.B.S.K., Advocate for D.4 & 5]
***
/3/ O.S.No.5440/2012
Date of Institution of the suit : 30.07.2012
Suit for permanent and
Nature of suit : mandatory injunctions
Date of commencement of
evidence : 09.01.2020
Date on which the judgment
is pronounced : 30.09.2021
Years Months Days
Duration taken for disposal :
09 02 00
***
JUDGMENT
The plaintiffs have filed the suit against the defendants for the relief of permanent injunction restraining the defendants from issuing licences and permits to put up unauthorized construction in 5 th Main Road, Ward No.127, Govindaraja Nagar, Moodalapalya, Bengaluru - 560 072 and to issue direction to the defendants to stop unauthorized construction in the 5 th Main Road and to cancel the licences and permits if already granted by the defendants in favour of third persons to put up unauthorized construction.
2. Initially, plaintiffs filed the present suit against BBMP Authorities I.e., defendants No.1 to 3.
/4/ O.S.No.5440/2012 Subsequently, defendants No.4 & 5 have been impleaded.
3. The case of the plaintiffs in brief is as under :
Plaintiffs are the permanent residents of 5 th Main Road, 4th Cross, Govindaraja Nagar, Ward No.127, Janata Colony, Moodalapalya, Bengaluru - 560 072. The plaintiffs have purchased the sites in the said locality and have constructed residential houses and are residing in their respective houses. After construction of their houses, they have obtained electricity and water connection from the concerned authorities. The 5 th Main Road runs from North to South. In the western side of 5 th Main Road, there is a drain flows from North to South.
Towards the East of the 5th Main Road, the plaintiffs ' houses and other houses are situated. The 5 th Main Road ends at the point where Site No.548 is situated in the South. The road does not run further towards South as it ends there. The 4th Cross Road which runs from /5/ O.S.No.5440/2012 East to West connects the 5 th Main Road in the western side. The only accessibility to the plaintiffs who are living in the 5th Main Road to 4th Main Road to go to other localities of the area. The width of the 5 th Main Road in the North side is 15 feet, East to West and goes on reducing as one goes towards South. Now the defendants are making arrangements to issue licence and permits to some third parties to construct houses in the 5th Main Road who have no sites of their own. The third parties are making hectic efforts to construct building in the public road. If the third parties are succeeded in constructing the building in the public road, the plaintiffs would be put to hardship and their easementary rights will be affected. Therefore, the plaintiffs have got issued legal notice on 15.09.2011 to the BBMP. After issuance of notice, the defendants have stopped temporarily for sometime in their attempts to issue licences. Now all of a sudden, the defendants are /6/ O.S.No.5440/2012 making an attempt to issue licence to construct building in the 5th Main Road. Therefore, the plaintiffs filed a complaint before the Chandra Layout Police Station, but the police authorities have not initiated any action.
Hence, prayed for decreeing the suit.
4. In response to suit summons, defendants appeared through their respective counsels and have filed their written statement. The defendants have denied the claim of the plaintiffs. Defendants specifically contended that the plaintiffs have filed the present suit only with an intention to cause harassment to the defendants. There is no cause of action to file the present suit. The plaintiffs have filed the present suit without complying Section 482 of KMC Act. Defendant No.5 specifically contended that he is the absolute owner in possession of Site No.95/A. The site bearing No.95/A originally allotted to one K. Muniyappa under a hakkupatra dated 12.08.1973. After the allotment of /7/ O.S.No.5440/2012 said site, said Muniyappa and his family members have constructed A.C. sheet house and are residing in the said house. Accordingly, katha was effected. The said Muniyappa and his family members have paid taxes. The said Muniyappa and his wife - Smt. Ramakka died long back and after the death of Muniyappa and his wife Smt. Ramakka, their son M. Venkatesh (defendant No.4) inherited the property and katha has been transferred in his name. The said Venkatesh along with his family members have sold half portion of the property bearing No.95/A I.e., 18 X 30 feet along with A.C. sheet house to defendant No.5 under the registered Sale Deed dated 05.11.2012. On the date of Sale Deed itself, the possession of property has been delivered to defendant No.5. As per Sale Deed, name of defendant No.5 has been mutated in BBMP records. Presently katha in respect of said property is in his name. He paid update tax and has obtained electricity and water connections /8/ O.S.No.5440/2012 to the said property. Defendant No.5 has not at all made any encroachment over the public road as alleged by the plaintiffs. Hence, prayed for dismissal of the suit.
5. On the basis of the pleadings and documents of the parties, the following issues have been framed by my predecessor in Office on 08.07.2013 :
1) Whether the plaintiffs prove that defendants are putting up unauthorised construction in suit property ?
2) Do they prove that the licenses and permits granted by defendants in favour of third parties to put up unauthorised constructions are illegal ?
3) Do plaintiffs are entitled for the relief sought for ?
4) What order or decree?
6. In order to prove their case, plaintiff No.1 has been examined as P.W.1 and got marked documents as Exs.P.1 to P.35. In support of their case, they have /9/ O.S.No.5440/2012 examined one Krishnamurthy as PW.2. While cross- examining P.Ws.1 and 2, the counsel for defendant No.5 confronted photographs, RTC in respect of Sy.No.52 and hakkupathra. Witnesses admitted the said documents. Accordingly, same have been marked as Exs.D.1 to D.10. In order to substantiate the defence of the defendants, defendant No.5 has been examined as D.W.1 and got marked the documents Exs.D.11 to D.30.
7. During the pendency of suit, plaintiff No.5 died. His legal representatives have been brought on record as plaintiffs No.5(a) and (b).
8. Heard arguments and perused the written arguments filed by the counsel for the plaintiffs.
9. My findings to the above issues are as follows:
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
/ 10 / O.S.No.5440/2012
Issue No.4 : As per final order, for
the following:
REASONS
10. Issue Nos.1 and 2 :- These issues are
interlinked with each other. Hence, in order to avoid
repetition of facts and evidence, they are taken up together for discussion.
11. Plaintiffs have filed the present suit against the defendants for the relief of permanent injunction restraining the defendants from issuing licences and permits to put up unauthorized construction in 5 th Main Road, Ward No.127, Govindaraja Nagar, Moodalapalya, Bengaluru - 560 072 and to issue direction to the defendants to stop unauthorized construction in the 5 th Main Road and to cancel the licences and permits if already granted by the defendants in favour of third persons to put up unauthorized construction.
12. In order to establish their case, plaintiff No.1 himself examined as PW.1 and relied upon documents / 11 / O.S.No.5440/2012 Exs.P.1 to P.35. PW.1 deposed that, himself and remaining plaintiffs are the permanent residents of Ward No.127, 4th Cross, 5th Main Road, Govindaraja Nagar, Moodalapalya, Bengaluru - 560072. They have purchased the sites in the said area and have constructed residential houses and are residing in their respective houses. The 5th Main Road runs from North to South. In the western side of 5th Main Road a drain flows from North to South. Towards East of the 5 th Main Road, the plaintiffs' houses and other houses are situated. The 5th Main Road ends at the point where Site No.548 is situated in the South. The 4 th cross road runs from East to West, connects the 5th Main Road in the western side, it is the only accessibility to the plaintiffs who are living in the 5th Main Road through 4th Main to go to other localities of the areas. The Government has not formed Site No.95/A. The defendant No.5 is falsely claiming that he has purchased site No.95/A under the Sale Deed / 12 / O.S.No.5440/2012 dated 05.11.2012 as per Ex.P.24. The defendant No.4 in collusion with the BBMP Authorities has created the document and is making false claim over the public road. Therefore, they have filed a complaint before the BBMP as per Exs.P.10 to P.17 and even they have filed complaint before the Land Grabbing Prohibition Court. Ex.P.18 is the Order Sheet in LGC (P) No.56/2017. In the said case BBMP Authority has submitted Report as per Exs.P.19 to P.23. Ex.P.1 (Ex.P.35) is the Layout Plan. Ex.P.2 - Hakkupathra in respect of his site i.e.,Site No.95. Ex.P.3 is the partition deed dated 12.01.2011. Ex.P.6 (Ex.P.30) is the Death Certificate of K. Muniyappa. Either BBMP or defendants No.4 & 5 have no right to make an encroachment over the public road. The defendants have colluded with each other and have created the documents, thereby, they are claiming that the public road is site No.95/A. The defendants are trying to construct building over the 5th Main Road. Therefore, he / 13 / O.S.No.5440/2012 has filed complaint before the Chandra Layout Police Station as per Ex.P.4. The police authorities have issued an Endorsement as per Ex.P.5. Exs.P.7 and P.33 are the Tax Paid Receipts. Ex.P.26 is the Endorsement issued by ARO, BBMP. Ex.P.27 is the Complaint submitted to the Commissioner of Police, Bengaluru. Ex.P.32 is the certified copy of Hakkupatra in respect of Site No.95/A. Ex.P.34 is the 'B' Property Register Extract in respect of property bearing No.52/92A. The defendants No.4 & 5 are no way concerned with the 5 th Main Road, even then they are making an attempt to trespass into the public property. The 5th Main Road is the only road to access to their property. If the defendant No.5 is succeeded in constructing the building, they would be put to hardship. Hence, prayed for decreeing the suit.
13. Though P.W.1 claimed that site No.95/A is not at all in existence and the defendants have made an attempt to encroach over the public road i.e., 5 th Main / 14 / O.S.No.5440/2012 Road, but, in his cross-examination at page No11, he clearly admitted that "ದದವದಸಸತತನಲಲ 5 ನನನ ಪಪತವದದ ಮನನ ಕಟಟಸಕನಕಕಡಡ ಸಡಮದರಡ 10 ವರರಗಳಕದ ವದಸವದಗರಡತದತರನ ಎನಡನವವದಡ ನಜ." In page No.17 he further deposed that, "2012 ರಕದ ಇಲಲಯವರನಗನ 5 ನನನ ಪಪತವದದ ದದವದಸಸತತನಲಲ ಮನನ ಕಟಟಸಕನಕಕಡಡ ವದಸವದಗರಡತದತರನ." The evidence of P.W.1 is contrary to his pleadings and document. It is well settled law that no one is permitted to approbate and reprobate. PW.1 further admitted that, he has filed a case before Land Grabbing Prohibition Court against the defendant No.5. Plaintiffs claim that Ex.P.1/P.35 is the layout plan, but P.W.1 in his cross-examination at page No.12 deposed that, "ನದವವ ವದಸವದಗರಡವವದ ರನವನಕನ ಬಡದವಣನ ಎನಡನವವದಡ ನಜ. ಸದರ ಬಡದವಣನಗನ ಸಕಬಕಧಸದಕತನ ಅನಡಮನದತ ನಕನಕ ಇರಡವವದಲಲ ಎನಡನವವದಡ ನಜ." As per P.W.1 himself, defendant No.5 has constructed building in Site No.95/A and residing in the said property.
On perusal of Ex.P.18 - Order Sheet in LGC(P)
/ 15 / O.S.No.5440/2012
No.56/2017 on the file of Karnataka Land Grabbing Prohibition Special Court, Bengaluru, it reveals that present plaintiff No.1 has filed a complaint against present defendants No.4 and 5 in respect of Site No.95/A. The allegation made in the present suit and the allegation made in the said complaint are one and the same. On perusal of Exs.P.19 to P.23 and D.28, it reveals that as per directions of the said Court, the Assistant Executive Engineer, BBMP has visited the spot and has submitted report as per Ex.D.28 on 09.10.2017. On perusal of said report, it clearly reveals that site No.95/A has been allotted to one K. Muniyappa. Accordingly, hakkupatra has been issued. Subsequently, the son of the K.Muniyappa viz., Venkatesh has alienated the said site to defendant No.5. In the said report, it is clearly mentioned that defendant No.5 is in possession of site No.95/A and there is no encroachment over the public road. The said report has been issued by the / 16 / O.S.No.5440/2012 competent authority. It has got presumptive value. By considering the report i.e., Ex.D.28, the Hon'ble Special Court dismissed the complaint. The plaintiff has not challenged the Order passed in LGC (P) No.56/2017. Thus, it has attained finality.
14. In support of their case, plaintiffs have adduced evidence of one Krishnamurthy. The said Krishnamurthy in his examination-in-chief deposed that defendant No.5 has encroached 5 feet land and suit schedule property is the public road. Though PW.2 deposed that defendant No.5 has made an encroachment over the public road, but in his cross- examination clearly admitted that defendant No.5 has constructed a residential house in the year 2010 and residing in the said house.
15. In order to establish their defence, defendant No.5 has been examined as DW.1 and got marked documents Exs.D.11 to D.30. DW.1 deposed that, / 17 / O.S.No.5440/2012 Government of Mysore has issued Hakkupatra in respect of Site No.95/A in the year 1973 in the name of K.Muniyappa as per Ex.D.11. The said K.Muniyappa died leaving behind his son M.Venkatesh I.e., defendant No.4. Defendant No.4 along with his family members have executed registered sale deed in respect of Site No.95/A on 05.11.2012 as per Ex.D.12. On the date of sale deed itself, possession of property has been delivered. Since then he is in possession of the said site. Ex.D.13 is the Encumbrance Certificate. As per Sale Deed, his name has been mutated in BBMP records. Presently khatha certificate and katha extract are standing in his name as per Exs.P.14 & P.15. He paid update tax, electricity and water bills as per Exs.D.16 to D.19. Ex.D.20 are the photographs in respect of site bearing No.95/A. Ex.D.21 is the certified copy of ration card pertains to him. The plaintiffs have made false representation to the Government and have succeeded in getting various / 18 / O.S.No.5440/2012 sites. Ex.D.22 to D.24 are the Sale Deeds. Ex.D.25 is the Gift Deed in respect of Khatha No.646. He further deposed that, as per Sale Deed, he is in possession of the site No.95/A. The plaintiffs are making false allegation that Site No.95/A is not at all in existence. Even they have filed complaint in Case No.56/2017 before the Karnataka Land Grabbing Prohibition Court, Bengaluru. Ex.D.26 is the copy of the Complaint, Ex.D.27 is the certified copy of Objection. In the said case the Hon'ble Court ordered for local inspection. The BBMP Authorities have inspected the spot and have submitted detailed report as per Ex.D.28. After considering the said report, the Hon'ble Court dismissed the complaint on 08.03.2018 as per Ex.D.30. The plaintiffs are no way concerned with the Site No.95/A. Hence, prayed for dismissal of the suit.
16. The counsel for the plaintiffs cross-examined DW.1 in length, but the witness adhered to his original / 19 / O.S.No.5440/2012 version. The counsel for the plaintiffs made a specific suggestion that Site No.95/A is not in existence, witness denied the said suggestion. He further made a suggestion that, public road has been encroached, but witness denied the said suggestion. Except this, nothing worth has been elicited from the mouth of DW.1.
17. On perusal of Ex.D.11 - Hakku Patra, it reveals that Government of Mysore allotted Site No.95/A to K.Muniyappa and accordingly, Tahasildar, Bengaluru North issued Hakku Patra to said Muniyappa. On perusal of Ex.P.6 it reveals that said K.Muniyappa died on 5.5.1994. After death of Muniyappa, his son M.Venkatesh and family members have alienated said site No.95/A to defendant No.5 as per sale deed - Ex.D.12. Ex.D.13 - Encumbrance Certificate clearly reflects said sale transaction. As per sale deed, name of the defendant No.5 has been mutated in the BBMP records and presently khatha extract and khatha certificate are / 20 / O.S.No.5440/2012 standing in his name as per Exs.D.14 and 15. Defendant No.5 paid tax as per Exs.D.16 and 17. Ex.D.21 is the certified copy of the Ration Card pertains to defendant No.5. In the said ration card also there is a recitals regarding Site No.95/A. The evidence of P.Ws 1 and 2, D.W.1 coupled with Exs.D.2, 6, 12, 13, 16, 17, 21 and 28, it clearly goes to show that defendant No.5 has purchased Site No.95/A and has constructed residential house and residing in the said house.
18. On perusal of entire material available on record, it reveals that plaintiffs are claiming that defendant No.5 has made an encroachment over the public road and has constructed the building over the public road and thereby caused obstruction to their easementary right i.e., right to way. Admittedly, present plaintiff No.1 has filed a complaint against the present defendants No.4 & 5 in LGC (P) No.56/2017 on the file of Land Grabbing Prohibition Special Court, Bengaluru. The / 21 / O.S.No.5440/2012 allegation made in the said case and the allegation made in the present suit are one and the same. On perusal of Ex.D.28 - Report submitted by the Assistant Executive Engineer, B.B.M.P., it reveals that there is no encroachment over the 5th Main Road or even any other public road.
19. In the written arguments filed by the counsel for plaintiffs contended that defendant No.5 has not produced relevant document in respect of Site No.95/A. Admittedly, plaintiffs have filed the present suit claiming that defendant No.5 made an encroachment over the public road. The entire burden is upon the plaintiffs, they have to prove their case, they cannot take the weakness of defendants as trump-card. That, Section 101 of Indian Evidence Act has clearly laid down that, burden of proving of fact always lies upon person who asserts the fact. Until such burden is discharged, the other party is not required to be called upon to prove his / 22 / O.S.No.5440/2012 case. The Court has to examine as to whether the presumption upon whom the burden lies has been able to discharge his burden. Until the Court arises at such conclusion the Court cannot proceed on the basis of weakness of other party. In a decision reported in (2011) 12 Supreme Court Cases 220 (Rangammal Vs. Kuppuswami and another), the Hon'ble Apex Court held that :
"Burden lies on plaintiff to prove his case on the basis of material available, he cannot rely on weakness or absence of defence of defendant to discharge the onus. If plaintiff claims title to property, he must prove his title."
The entire burden is upon the plaintiffs to prove their case. They cannot take the advantages of the weakness of defendants as trump-card. Hence, the above said decision is aptly applicable to the case in hand.
/ 23 / O.S.No.5440/2012
20. It is the case of the plaintiff that the defendant No.5 has constructed the building by encroaching the public road. But, there is no material on record to show that the defendant No.5 has constructed building by encroaching the public road. Even the plaintiffs have not made any effort for appointment of Court Commissioner for local inspection in order to ascertain the alleged encroachment. Except oral testimony of P.W.1 there is no evidence on record to show that defendant No.5 constructed building by encroaching public road.
21. Plaintiffs have claimed the relief of mandatory injunction. As per Section 39 of the Specific Relief Act, in order to claim the relief of mandatory injunction the plaintiffs have to establish their rights over the suit schedule property. Besides, mandatory injunction is an order requiring the defendants to do some positive act for the purpose of putting an end to wrongful state of / 24 / O.S.No.5440/2012 things created by them or otherwise in fulfillment of their legal obligation. In this case the plaintiffs have utterly failed to prove the fact that the defendants are under a legal obligation to remove the alleged encroachment.
22. Plaintiffs have filed the present suit for permanent and mandatory injunctions, thereby claiming the easementary rights. It is well settled law that in order to claim the relief of easementary rights, plaintiffs ought to have claimed the relief of declaration. Without the relief of declaration, the suit for bare injunction is not maintainable.
23. On perusal of the plaint, it clearly goes to show that entire case of the plaintiffs are that, the defendant No.5 has constructed building in the public road and thereby caused obstruction to their easementary rights. The plaintiffs have not specifically pleaded that they are entitled to easementary right of / 25 / O.S.No.5440/2012 way over the suit schedule property. The fact to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out easementary rights. In a suit for enforcement of an easementary right relates to a right possessed by a dominant owner over a property not his own having the effect of restricting the natural rights of the owner of such property. Easement can be acquired by different ways and are different kinds, i.e., easement by prescription, easement by necessity, easement by grant, etc., A dominant owner seeking relief relating to an easement by prescription shall have to plead and prove the nature of easement, manner of acquisition of easementary right and the manner of disturbance or obstruction to the easementary right. But, in this case the plaintiffs have not at all specifically pleaded regarding what type of easementary rights they have acquired over suit schedule property. Hence, without / 26 / O.S.No.5440/2012 pleading Court cannot infer that plaintiffs have got easementary rights by referring to a stray sentence here and there in the pleadings.
24. On perusal of entire plaint, the plaintiffs are claiming the prescriptive easementary rights as provided under Section 15 of the Indian Easement Act, 1882 and not for easement of necessity.
25. Besides, the plaintiffs have to seek first the relief of declaration regarding their easementary rights over the suit schedule property. But, in the present case, plaintiffs have not sought for declaration that they have acquired prescriptive right of easement with regard to inflow of air and light. Hence, without seeking the relief of declaration, the suit of the plaintiffs is not maintainable.
26. In a Judgment passed by our own Hon'ble High Court of Karnataka in RFA No.506/2010 dated / 27 / O.S.No.5440/2012 17.8.2012 (M/s. Spring Borewells Company Pvt. Ltd., Vs. Union Of India and others) clearly held that, "Suit for mere injunction is not maintainable without a prayer for declaration that the plaintiff acquired the prescriptive right." In this case also, the plaintiffs only sought the relief of permanent and mandatory injunctions. The relief of declaration is not sought. The above said decision is aptly applicable to the case in hand.
27. In view of the above decisions and discussions and also subject matter of the suit, the plaintiffs have filed this suit for the relief of permanent and mandatory injunctions claiming that they have got easementary rights over the suit schedule property. Hence, as per Section 15 of Indian Easement Act, 1882 and as per the decision of the Hon'ble High Court of Karnataka as stated supra, the suit of the plaintiffs is not maintainable without seeking the relief of declaration. The plaintiffs / 28 / O.S.No.5440/2012 have filed the present suit on imaginary cause of action. There is no cause of action to file the present suit.
28. The plaintiffs have claimed the relief of cancellation of licence and permits granted by defendants in favour of third parties. The plaintiffs have not pleaded on what date and in whose favour the defendants No.1 to 3 have issued licence or permission. There is no clear pleadings regarding alleged issuance of licence and for construction of building. The plaintiffs have utterly failed to prove that the defendants have unauthorizedly constructed the building in a public road by violating the building bye-laws. Accordingly, I answer Issue Nos.1 & 2 in the negative.
29. Issue No.3:- As discussed on Issue Nos.1 & 2, the plaintiffs have utterly failed to prove that the defendants are unauthorizedly constructing building over 5th Main Road, Ward No.127, Govindaraja Nagar, Moodalapalya, Bengaluru - 560 072.
/ 29 / O.S.No.5440/2012
30. Initially the plaintiffs have filed the present suit against defendants No.1 to 3 i.e., B.B.M.P. officials. Subsequently, they filed an application under Order I Rule 10 C.P.C. for impleading defendants No.4 and 5, same was allowed and defendants No.4 and 5 have been impleaded. Though defendants No.4 and 5 have been impleaded, but there is no prayer against said defendants.
31. Admittedly, defendants No.1 to 3 are the B.B.M.P. officials. Plaintiffs in their plaint para No.7 pleaded that they have issued notice under Section 482 of K.M.C.Act, but have not produced the copy of said notice. As per Section 482 of K.M.C.Act, 60 days prior notice is mandatory. Plaintiffs neither issued prior notice as contemplated under Section 482 of K.M.C.Act nor they have filed an application under Section 482 (1-A) of K.M.C.Act seeking leave to institute suit, without serving / 30 / O.S.No.5440/2012 any notice as required under Section 482 (1) of K.M.C.Act. Hence, the suit of the plaintiffs is not maintainable in the present form. Hence, they are not entitled for any relief. Accordingly, I answer Issue No.3 in the negative.
32. Issue No.4:- For the forgoing reasons, I proceed to pass the following:
ORDER Suit of the plaintiffs is hereby dismissed with cost of Rs.5,000/-.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 30th day of September, 2021).
(KHADARSAB) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiffs :
P.W.1 : Kempegowda
P.W.2 : L.Krishnamurthy
/ 31 / O.S.No.5440/2012
2. List of documents exhibited for plaintiffs :
Ex.P1 C/c Ex.P29 in O.S. No.4101/2013-layout plan (not legible) Ex.P2 C/c Hakkupatra in respect of site No.95 issued by Tahsildar Bangalore north Taluk Ex.P3 C/c partition deed dated 12/1/2011 Ex.P4 C/c complaint dated 22/7/2012 Ex.P5 C/c endorsement issued by SHO Chandra layout PS B'lore dt 22/7/2012 Ex.P6 C/c death certificate of K.Muniyappa Ex.P7 C/c tax paid receipt dated 31/8/2010 Ex.P8 Letter issued by ARO Chandra Layout Sub Division Bruhat Bangalore Mahanagara Palike dated 3/2/2015 Ex.P9 Letter dated 1/12/2018 issued by Deputy Secretary to Chief Minister Ex.P10 Copy of the complaint dated 7/8/2012 Ex.P11 Copy of the complaint dated 10/8/2012 Ex.P12 Received copy of complaint dt 13/8/2012 Ex.P13 Copy of the complaint dated 21/8/2012 Ex.P14 Copy of the complaint dated 21/8/2012 Ex.P15 Copy of the complaint dated 27/8/2012 Ex.P16 Copy of the complaint dated 6/9/2012 Ex.P17 Copy of the complaint dated 6/9/2012 Ex.P18 C/c order sheet in LGC(P)No.56/2017 Ex.P19 C/c report dated 17/4/2017 submitted by Executive Engineer Bruhat Bangalore Mahanagara Palike Ex.P20 C/c report dated 1/3/2017 submitted by Executive Engineer Bruhat Bangalore Mahanagara Palike Ex.P21 C/c letter dated 16/2/2017 / 32 / O.S.No.5440/2012 Ex.P22 C/c report submitted by Executive Engineer Bruhat Bangalore Mahanagara Palike dated 13/7/2017 Ex.P23 C/c report submitted by Executive Engineer Bruhat Bangalore Mahanagara Palike dated 12/5/2017 Ex.P24 C/c Sale deed dt 5/11/2012 Ex.P.25 C/o Paper publication Ex.P26 Endorsement dt 9.2.2021 issued by ARO BBMP Ex.P27 Copy of the complaint submitted to Police Commissioner Bangalore dt 30.1.2017 Ex.P28 Letter dt 30.11.2020 issued by information officer B'lore north Taluk Panchayath Yalahanka along with list of Beneficiaries Ex.P29 Letter issued information officer and Sub Registrar Nagarabhavi, Bangalore dt 21.1.2021 Ex.P30 Death certificate pertains to K.Muniyappa Ex.P31 Letter dt 4.1.2021 issued by ARO, BBMP Ex.P32 Hakkupatra in respect of 95A (obtained under RTI Act) Ex.P33 Tax paid receipt 31.8.2010 Ex.P34 B property register extract in respect of property No.52/92A Ex.P35 C/c layout plan
3. List of witnesses examined on behalf of defendants : -
D.W.1 : Ramachandra.R.
4. List of documents produced by defendants :-
Ex.D.1 to 4 : Photographs.
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Ex.D.5 : RTC in respect of Sy.No.52
Ex.D.6, 7 : X/c of Hakkupatra.
Ex.D.8,9 : X/c of Hakkupatra.
Ex.D.10 : Photograph
Ex.D11 C/c Hakkupatra in respect of site
No.95A
Ex.D12 C/c Sale deed dt 5.11.2012
Ex.D13 C/c EC form No.15 dt 29.7.2016
Ex.D14 & 15 C/c Khatha certificate and Khatha extract in respect of site NO.95A Ex.D16 C/c Tax paid receipt dt 4.12.2014 Ex.D17 C/c Tax paid receipt dt 19.9.2020 Ex.D18 C/c Two electricity bills (together marked) Ex.D19 C/c Water bill along with receipt Ex.D20 C/c 4 photos Ex.D21 C/c ration card Ex.D22 C/c sale deed dt 17.2.2005 Ex.D23 C/c sale deed dt 4.1.2013 Ex.D24 C/c sale deed dt 20.8.2015 Ex.D25 C/c gift deed dt 8.2.2016 Ex.D26 C/c complaint filed in case No.56/2017 on the file of Karnataka land grabbing prohibition, court Bangalore Ex.D27 Statement of objections filed in case No.56/2017 on the file of Karnataka land grabbing prohibition, court Bangalore Ex.D28 C/c report submitted by AEE Chandra Bhadavane sub division, Bangalore Ex.D29 C/c order sheet in case No.56/2017 on the file of Karnataka land / 34 / O.S.No.5440/2012 grabbing prohibition, court Bangalore Ex.D30 C/c order passed in case No.56/2017 on the file of Karnataka land grabbing prohibition, court Bangalore (KHADARSAB), XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
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30/09/2021
Judgment pronounced in the Open
Court, vide separate Judgment :
ORDER
Suit of the plaintiffs is hereby
dismissed with cost of Rs.5,000/-.
Draw decree accordingly.
(KHADARSAB),
XXXIX ACC & S Judge,
Bangalore City.
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