Bangalore District Court
Sri Karthik Thiagarajan vs The Tahasildar on 25 November, 2017
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge.
Dated this the 25th day of November 2017
PLAINTIFF: Sri KARTHIK THIAGARAJAN
Aged about 31 years,
S/o Sri K.Thiagarajan,
Residing at :- Apartment No.1-C,
First Floor,
MAHALAKSHMI MANSION
No. New No.10/6-1, 1st Cross Road,
Saraswathipuram, Nandini Layout,
Bangalore-560 096.
Represented by his GPA Holder
Sri K.THIAGARAJAN.
[By Sri N.G.Sreedhar, Advocate]
/v e r s u s/
DEFENDANTS: 1. The Tahasildar,
Bangalore North (Additional)
Taluk, Yelahanka,
BANGALORE.
2. The State of Karnataka
Represented by :-
The Principal Secretary,
Government of Karnataka,
Revenue Department,
M.S.Building, Dr. Ambedkar Veedhi,
BANGALORE-560 001.
[By Smt. Sunitha H.Singh, Advocate]
2 CT0028_O.S._4654_2010_Judgment_ .
Date of institution of the : 8/7/2010
suit
Nature of the suit : For Injunction
Date of commencement of : 3/1/2011
recording of the evidence
Date on which the : 25/11/2017
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
7 4 17
(S.H. Hosagoudar)
XXVII ACCJ: B'LORE.
Plaintiff filed this suit against defendants for the
relief of permanent injunction restraining the
defendants or their officials or their agents from
interfering with the plaintiff's peaceful possession and
enjoyment of the 'B' schedule property and also from
dispossessing the plaintiff from the suit 'B' schedule
property or any part thereof.
2. In brief the plaintiff's case are as under:
That the plaintiff is the owner of suit 'B' schedule
property which is situated in the first floor of 'A'
schedule property. The plaintiff has purchased the 'B'
3 CT0028_O.S._4654_2010_Judgment_ .
schedule property from one B.N.Kumar represented
by his GPA holder M/s Jagan Associates for valuable
consideration under the registered sale deed dated
12/04/2006. That the then Government of Mysore
way back in the year 1966 by due deliberation in
respect of the land bearing sy.no.1 new no.145 of
Jarakabande Kaval village, Yelahanka Hobli,
Bangalore North taluk, measuring total extent of 73
acres 5 guntas decided to dispose the same in favour
of various individuals for assessed upset price. In the
course of the same, the larger extent of land
measuring 2 acres 30 guntas comprehending 'A'
schedule property herein has been granted in favour
of one Annaiah under Order dated 16/2/1967. The
revenue authorities pursuant to the aforesaid order
passed by the Government of Mysore have duly
mutated their revenue records in favour of said Sri
Annaiah in respect of said land comprehending 'A'
schedule property. Thereafter, the said owner Sri
Annaiah way back during the year 1970 sold the said
4 CT0028_O.S._4654_2010_Judgment_ .
extent of property in favour of one W.H.Gopal for
valuable consideration under registered sale deed
dated 23/2/1970. Pursuant to which revenue records
of the larger extent of land duly mutated in favour of
said W.H.Gopal in the office of revenue authorities.
The said W.H.Gopal in turn sold the land
comprehending 'A' schedule property to one
M.R.Prakash for a valuable consideration vide sale
deed dated 14/8/1972 in favour of one M.R.Prakash
for valuable consideration. The said M.R.Prakash has
obtained conversion sanctioned certificate dated
1/9/1979 issued by the office of the Tahasildar,
thereby certifying the alienation of the land
comprehending 'A' schedule property from agriculture
purpose to non-agriculture residential utility. The said
M.R.Prakash has executed and registered GPA in
favour of one B.M.Narasimhamurthy thereby
empowering him inter alia to do all acts things and
deeds on his behalf. The registered GPA holder
B.M.Narasimhamurthy acting upon the powers
5 CT0028_O.S._4654_2010_Judgment_ .
conferred to him by his principal M.R.Prakash sold
the land measuring (85.3 feet + 95.7 feet) /2 X (63 feet
+ 104.5 feet) / 2 as one portion and another portion
of the same measurement were sold to common
purchaser namely B.N.Kumar. B.N.Kumar has been
compositely developed two portions of property.
Thereafter, B.N.Kumar along with his registered GPA
holder i.e., M/s Jagan Associates have formulated a
development scheme so as to put up multistoried
dwelling units i.e., the 'A' schedule property herein
pursuant to which they have approached the
Bangalore Mahanagara Palike which authority has
issued sanctioned plan bearing L.P.No.1027/2005-06.
The plaintiff has purchased 'B' schedule property in
'A' schedule property and he is in lawful possession
and enjoyment of the same since from the date of
purchase. Defendant no.1 has initiated proceedings
under Section 39 of the Karnataka Land Revenue Act
against plaintiff's builder i.e., M/s Jagan Associates in
respect of 'A' schedule property and issued notice
6 CT0028_O.S._4654_2010_Judgment_ .
dated 4/8/2009 to the said builder against which the
builder has duly replied. The said notice which has
issued by first defendant contemplates that land
comprising the 'A' schedule property belongs to
Government of Karnataka and as such they are
empowered to take action under the said Act. The
legal right accrued upon plaintiff in respect of suit
schedule property is legal and valid. The defendant
no.1 without considering reply letters of the builder
has passed an order of dispossession vide order dated
11/9/2009. Immediately the said builder vide his
letter dated 6/11/2009 has made representation to
the first defendant clarifying him that his notice dated
4/8/2009 has been duly replied with relevant
documents. However, first defendant has not
considered the impugned order passed by him in the
light of replies given by the plaintiff's builder and
hence an appeal has been preferred under Section
49(a) of Land Revenue Act which remedy however is
not alternative efficacious remedy whereunder
7 CT0028_O.S._4654_2010_Judgment_ .
substantive rights of the parties will be adjudicated
and it is this court alone which can adjudicate rights
of the parties and revenue authorities are bound by
that order. The plaintiff is in possession of 'B'
schedule property more than 30 years continuously,
openly, exclusively by the predecessor in title right
since from 1966 upto the date i.e., 4/8/2009 on
which date first defendant falsely alleged that land
comprising 'A' schedule property belongs to
Government of Karnataka. The defendants have no
right over the suit schedule property and now they are
trying to interfere with the plaintiff's peaceful
possession and enjoyment over 'B' schedule property
and also trying to dispossess the plaintiff from the 'B'
schedule property. Hence this suit.
3. In response to the suit summons issued by
the Court, defendants appeared through their
Government Advocate and filed written statement. In
brief the contents of the written statement filed by the
defendants are as under:
8 CT0028_O.S._4654_2010_Judgment_ .
The suit of the plaintiff is not maintainable either
in law or on facts. The suit schedule property viz.,
sy.no. 1 of Jarakabande Kaval village, Yelahanka,
Bangalore north taluk earlier totally measuring 519
acres and 37 guntas. Though it is phoded after phodi,
survey number was given as new no. 145 which
measures 426 acres 36 guntas at present. Whatever
alienation that have taken place in respect of survey
no.145 they do not affect survey no.1 measuring 21
guntas as shown in the akarband at present. It may
be true that some portion of survey no.145 was
purchased by different purchasers as alleged by the
plaintiff. However, their purchase was only in respect
of portion of sy.no.145 and they did not purchase any
portion of sy.no.1 muchless 9 guntas in sy.no.1.
Having purchased the portion of sy.no.145 in the
year 2007, M/s Jagan Associates illegally encroached
into sy.no.1 to the extent of 9 guntas and built their
apartment. As such this apartment is standing
illegally on sy.No.1 to the extent of 9 guntas. These
9 CT0028_O.S._4654_2010_Judgment_ .
defendants are entitled to remove that part of the
apartment which is built by encroaching into sy.no.1
to the extent of 9 guntas. The apartment including its
compound has been built encroaching the
Government land on an area measuring 9 guntas in
sy.no.1 and certain portion of the building in
sy.no.145 and as such encroached part of the building
is liable to be removed. The sale transaction between
plaintiff and M/s Jagan Associates and his
predecessor in title does not bind on these defendants
and sale was not in respect of part of the land bearing
sy.no.1. M/s Jagan Associates did not have any title
over any piece of land in sy.no.1 and they constructed
apartment by encroaching 9 guntas in sy.No.1.
It is submitted that M/s Jagan Associates have
built an apartment recently in the year 2007 and it is
only since 2007 that plaintiff and others have been in
illegal possession of the apartment. Prior to 2007,
these plaintiffs were not in picture at all. Since builder
of the plaintiff has encroached the property belongs to
10 CT0028_O.S._4654_2010_Judgment_ .
Government and therefore question of plaintiff
becoming owner by doctrine of adverse possession
does not arise at all. Plaintiff is not in lawful
possession and enjoyment of the 'B' schedule property
and hence plaintiff is not entitled for the relief of
permanent injunction as sought for against
defendants. On these grounds, defendants prays for
dismissal of the suit.
4. On the basis of the pleadings of the parties,
my predecessor in the office has framed following
issues:
(1) Whether the plaintiff prove his lawful
possession and enjoyment of the suit
schedule B flat so described in the
plaint as on the date of the suit?
(2) If so, whether the plaintiff further
proves the alleged interference into
his peaceful possession and
enjoyment of the suit schedule B
property by the defendants as
alleged in the plaint?
(3) Whether the plaintiff is entitled for
the permanent injunction as prayed?
(4) What decree or order?
11 CT0028_O.S._4654_2010_Judgment_ .
5. The General Power of attorney of plaintiff is
examined as PW.1 and the documents at Ex.P1 to
Ex.P6 have been marked. On the other hand
Tahasildar, Bangalore North (Additional) is examined
as DW.1 and Surveyors are examined as DWs. 2 and
3 and documents at Ex.D1 and Ex.D2 have been
marked.
6. In O.S.No.4650/2010, Court Commissioner
has been examined as CW.1 and got marked Ex.C1
and Ex.C2 and at the request of both the counsels,
Commissioner Report and evidence of the
Commissioner will be considered in this case also.
Further, advocate for plaintiffs filed Memo stating that
evidence given by Commissioner i.e., CW.1 both oral
and documentary evidence in O.S.No.4650/2010 is
hereby adopted by the plaintiff and requested to
consider the evidence of Court Commissioner adduced
in O.S.No.4650/2010. Hence with consent of both the
side, evidence given by the Court Commission in
O.S.4650/2010 will be considered in this case.
12 CT0028_O.S._4654_2010_Judgment_ .
Further, advocate for plaintiff also requested to
consider Ex.P8 to Ex.P21 produced in O.S.4650/2010
in this case also. Other side has no objection to
consider the said documents in this case. Further,
advocate for defendants submits that defendants have
produced copy of the notice and order passed by the
Tahasildar in O.S.No.4650/2010 which are marked as
Ex.D3 and Ex.D4 and requested to consider the same
in this case also. Other side has no objection. Hence
Ex.D3 and Ex.D4 will be considered in this case also.
7. I have heard the arguments on both sides
and perused the entire records of the case. During the
course of the argument, learned counsel for the
plaintiff has relied upon following decisions:
1. 2014 SAR (CIVIL) 33; 2014 SAR
(CIVIL) 185;
2. ILR 1999 KAR 301; and ILR 2000 KAR
4134
13 CT0028_O.S._4654_2010_Judgment_ .
8. Per contra, learned Special Government
counsel for the defendants has relied upon following
decisions:
1. AIR 2008 SUPREME COURT 2033;
2. AIR 2010 SUPREME COURT 744;
3. (2010) 5 SUPREME COURT CASES 203
4. ILR 1996 KAR 715
9. My findings on the above issues are as
under:
Issue No. 1) ............ In the negative;
Issue No. 2) ............ In the negative;
Issue No. 3) ............ In the negative;
Issue No. 4) ............ As per final order for the
following:
10. ISSUE NO.1: It is the case of the plaintiff
that he is the owner and lawful possession of 'B'
schedule property having purchased the same from its
vendor under registered sale deed dated 12/4/2006
and since from the date of purchase he is in lawful
possession and enjoyment of the 'B' schedule
14 CT0028_O.S._4654_2010_Judgment_ .
property. Further it is the case of the plaintiff that
katha has changed in his name and he is paying tax
in respect of 'B' schedule property. Further it is the
case of the plaintiff that defendants are trying to
interfere in the plaintiff's peaceful possession and
enjoyment over 'B' schedule property and also trying
to dispossess plaintiff from the 'B' schedule property
without any justification. Further it is the case of the
plaintiff that defendant no.1 without considering the
letters of the builders of the plaintiff has passed order
dated 11/9/2009 for dispossessing the plaintiff and
the said order is not legal and not binding on the
plaintiff. Further it is the case of the plaintiff that
defendants have no right over the 'A' schedule
property.
11. In this case defendants appeared through
their counsel and filed written statement denying the
case of plaintiff. Defendants contended that sy.no.1 of
Jarakabande Kaval village, Yelahanka, Bangalore
15 CT0028_O.S._4654_2010_Judgment_ .
North taluk earlier totally measuring 519 acres and 37
guntas and though it is phoded after phodi, survey
number was given a new number as 145 which
measures 426 acres 36 guntas at present. Defendants
further contended that it may be true that some
portion of sy.no.145 was purchased by different
purchasers as alleged by the plaintiff, however their
purchases was only in respect of portion of sy.no.145
and they did not purchase any portion of sy.no.1
muchless 9 guntas in sy.no.1. Further defendants
contended that M/s Jagan Associates illegally
encroached into sy.no.1 to the extent of 9 guntas and
built their apartment and as such the apartment
wherein plaintiff is residing in one flat is standing
illegally on sy.no.1 to the extent of 9 guntas. Since 9
guntas of land has been encroached by the builder of
M/s Jagan Associates illegally the defendants are
entitled to remove that part of the apartment. Further
defendants contended that plaintiff is not in lawful
possession and enjoyment of the 'B' schedule
16 CT0028_O.S._4654_2010_Judgment_ .
property. Further, defendants contended that 'A'
schedule property has been constructed in sy.no.1 by
encroaching 9 guntas of Government land and hence
plaintiff is not in lawful possession and enjoyment of
the 'B' schedule property.
12. In this case plaintiff examined himself as
PW.1. He filed affidavit evidence in lieu of his
examination in chief. In his examination in chief, he
reiterated the plaint averments. He produced in all 6
documents which are marked as Ex.P1 to Ex.P6 and
closed his side of evidence. On the other hand, on
behalf of defendants, the Tahasildar, Bangalore North
is examined as DW.1 and Surveyors are examined as
DWs. 2 and 3 and got marked two documents as per
Ex.D1 and Ex.D2 and closed their side of evidence.
13. In O.S.No.4650/2010 Surveyor is appointed
as Court Commissioner for making local inspection
and to give report. Accordingly, Court Commissioner
visited the spot and prepared report and sketch and
17 CT0028_O.S._4654_2010_Judgment_ .
submitted the same to the Court. In this case, Court
Commissioner is examined as CW.1 and got marked
Commissioner Report and Sketch as Ex.C1 and
Ex.C2.
14. I have perused entire evidence on record. In
this case, there is no serious dispute that plaintiff has
purchased 'B' schedule property from the GPA holder
of M/s Jagan Associates under registered sale deed
dated 12/4/2006. It is also admitted fact that M/s
Jagan Associates have constructed apartment in 'A'
schedule property. The 'B' schedule property is one of
the flat in 'A' schedule property. Defendants
contended that M/s Jagan Associates have
constructed apartment in 'A' schedule property by
encroaching 9 guntas of Government land in sy.no.1
and hence entire apartment has been constructed
illegally and hence possession of the plaintiff over 'B'
schedule property is not legal and plaintiff is in illegal
possession and enjoyment of the same.
18 CT0028_O.S._4654_2010_Judgment_ .
15. In this case, plaintiff examined himself as
PW.1. He produced 6 documents which are marked as
Ex.P1 to Ex.P6. Ex.P1 is the certified copy of the sale
deed dated 12/4/2006; Ex.P2 and Ex.P4 are the
khata certificate and khata extracts; Ex.P4 is the tax
paid receipt; Ex.P5 is electricity demand bill and
Ex.P6 is the General Power of Attorney.
16. Defendants examined three witnesses as
DWs. 1 to 3 and got marked 2 documents which are
marked as Ex.D1 and Ex.D2. Ex.D1 is the certified
copy of the Akarband of sy.no.1 of Jarakabande Kaval
village; Ex.D2 is the survey sketch of Jarakabande
Kaval village.
17. Court Commissioner is examined as CW.1.
She produced Commissioner Report and Sketch which
are marked as Ex.C1 and Ex.C2. Court Commissioner
in her evidence she deposed that she visited the spot
and prepared report and sketch and submitted the
same to the Court. In the cross-examination by the
19 CT0028_O.S._4654_2010_Judgment_ .
defendants, she stated that at the time of Commission
work, defendants and their counsel were absent. She
further stated that she has measured the property on
the basis of Ex.P15 and she has given report on the
basis of Ex.P15 considering the measurement
mentioned in Ex.P15. She further stated that she has
not seen Ex.D1 and she has not tried to secure Ex.D1
prior to measurement of 'A' schedule property. She
further stated that at the time of measurement of 'A'
schedule property, her husband was present and he
helped to measure the property. It is pertinent to note
that, CW.1 has not at all given valid notice to
defendants prior to execution of commission work.
Further evidence of CW.1 clearly shows that in the
absence of defendants she got measured the
properties that too on the basis of Ex.P15 produced by
the plaintiff. The evidence of CW.1 also clearly shows
that she has not at all measured entire property of
sy.no.1 and she failed to discharge her duties as a
City Surveyor. Ex.C1 is the report; Ex.C2 is the sketch
20 CT0028_O.S._4654_2010_Judgment_ .
prepared by the Court Commissioner. In the report,
Court Commissioner has mentioned that plaintiff has
encroached the property to the extent of 1409-45
square feet. Ex.C1 and Ex.C2 does not clearly shows
that CW.1 has measured the sy.no.1 or sy.no.145 of
Jarakabande Kaval village. The suit schedule property
i.e., sy.no.1 of Jarakabande Kaval village, Yelahanka
Hobli was totally measuring 519 acres and 37 guntas.
Though it is phoded, after phoding, survey number
was given as new number as 145 which measures 426
acres 36 guntas at present.
18. It is pertinent to note that, Ex.D1 is an
Akarband. Whatever alienation that has taken place
in respect of sy.no.145, they do not affect sy.no.1
measuring 21 guntas as shown in Ex.D1. The report
of the Court Commissioner clearly shows that she has
not at all properly measured disputed property and
not shown exact encroachment made by M/s Jagan
Associates while constructing the apartment. No
21 CT0028_O.S._4654_2010_Judgment_ .
doubt, the Commissioner Report discloses that there
is an encroachment by the plaintiff. But, she has
failed to disclose the correct area of encroachment
made by M/s Jagan Associates. The Court
Commissioner without issuing notice to the
defendants or their counsel had visited the spot and
she had measured the property only in presence of
plaintiffs. Further she has prepared sketch as per
Ex.P15 produced by the plaintiffs. Hence, evidence of
Court Commissioner clearly shows that she has not at
all properly conducted commission work and she has
not properly measured the disputed property.
Moreover, she has not given notice to the defendants
prior to execution of commission work. Further she
has not taken Memo of Instructions of defendants for
measurement of the disputed property. Hence,
commission report is not legal and valid one. Even
though Court Commissioner is a Government servant
she failed to follow the procedure while conducting
commission work. Even she failed to see the records
22 CT0028_O.S._4654_2010_Judgment_ .
pertaining to sy.no.1 or sy.no.145 of Jarakabande
Kaval village at the time of executing the commission
work. CW.1 in her cross-examination stated that her
husband has helped her at the time of measurement
of the property. It is pertinent to note that CW.1 is a
responsible officer and she has appointed as a Court
Commissioner by the Court to measure the property
and to submit report, but CW.1 without taking the
assistance of officials of the City Survey Office, she
has taken the assistance of her husband who is
private engineer. It shows that Court Commissioner
was not serious about the execution of commission
warrant. She mechanically measured the property as
per instruction given by the plaintiff that too only after
looking to the Ex.P15 produced by the plaintiff and
given report. The Court Commissioner has not
properly measured the property and failed to
discharge her duties. Hence Commissioner Report is
very vague and also violation of principles of natural
23 CT0028_O.S._4654_2010_Judgment_ .
justice since she has not given any notice to
defendants prior to execution of commission warrant.
19. CW.1 in her cross-examination by the
defendants stated that there was no instruction to her
to issue notice to the defendants. It is pertinent to
note that, it is a basic knowledge that before going to
execute the commission work, the Court
Commissioner ought to have issued notice to both the
parties and ought to have done commission work in
the presence of both the parties. But, CW.1 plead
ignorance that she was no instruction to issue notice
to the defendants. Hence, Commissioner Report is
very vague and same is not in accordance with law
and hence Commissioner Report submitted by CW.1
cannot be accepted.
20. In this case defendants contended that M/s
Jagan Associates has illegally encroached into sy.no.1
of Government land to an extent of 9 guntas and built
their apartment. In this case, defendants produced
24 CT0028_O.S._4654_2010_Judgment_ .
four documents which are marked as Ex.D1 and
Ex.D2. Ex.D1 is the Akarband. It shows that part of
'A' schedule property to the extent of 9 guntas is
situated in sy.no.1 and which sy.no.1 measures 426
acres and 36 guntas after phodi. Further, from the
documents it is much clear that so far as in sy.no.1 is
concerned, no part of the land has been sold or
granted by the Government at any time to any
predecessor of the plaintiff.
21. In this case, defendants also produced
survey sketch which is marked as Ex.D2. On perusal
of the same, it clearly shows that M/s Jagan
Associates has encroached 9 guntas of land belongs to
Government and constructed apartment. This Ex.D2
is prepared by Surveyors attached to Survey
Department.
22. DW.2 and DW.3 are the Surveyors working
in the Survey Department. DW.2 in his evidence
clearly stated that M/s Jagan Associates illegally
25 CT0028_O.S._4654_2010_Judgment_ .
encroached into sy.no.1 to the extent of 9 guntas and
built their apartment and as such this apartment is
standing illegally on sy.no.1 to the extent of 9 guntas.
He further stated that he has surveyed the sy.no.1
and he found that compound of apartment has been
built encroaching the government land to an extent of
9 guntas in sy.no.1 and certain portion of the building
is in sy.no.145. He further deposed that as per survey
sketch at sl.no. XIV the encroachment of the M/s
Jagan Associates is described in Ex.D2. I have
perused Ex.D2 produced by defendants and in the
said Ex.D2, encroachment made by M/s Jagan
Associates is described at sl.no.XIV. Hence, from the
evidence of DW.2, it is much clear that M/s Jagan
Associates has encroached 9 guntas of land in sy.no.1
which is belonging to Government and built up
apartment and plaintiff has purchased one of the flat
in the said apartment which was constructed by M/s
Jagan Associates by encroaching the Government
land. Under such circumstances, it cannot be said
26 CT0028_O.S._4654_2010_Judgment_ .
that plaintiff is in lawful possession of the 'B' schedule
property.
23. DW.3 also in his evidence clearly stated
that M/s Jagan Associates illegally encroached into
sy.no.1 to the extent of 9 guntas and built their
apartment. He further stated that he has surveyed
sy.no.1 and found that compound of the apartment
has been built encroaching the government land on
an area measuring 9 guntas in sy.no.1 and certain
portion of the building is in sy.no.145. The evidence of
DW.3 also clearly shows that M/s Jagan Associates
has encroached government land to the extent of 9
guntas belongs to government and built apartment.
Ex.D2 is a survey sketch prepared by DWs. 2 and 3.
DWs. 2 and 3 are the Surveyors working in Survey
Department and they measured the properties and
shown the encroachment in Ex.D2 by the M/s Jagan
Associates and other persons belongs to Government.
27 CT0028_O.S._4654_2010_Judgment_ .
24. In the cross-examination, DWs. 2 and 3
denied that M/s Jagan Associates has not at all
encroached any government land. Nothing has been
elicited from the mouth of DWs. 2 and 3 to disbelieve
their evidence. In this case, defendants also produced
notice issued by Tahasildar to the owner of M/s Jagan
Associates under Section 192(a) of Karnataka Land
Revenue Act which is marked as Ex.D3. In Ex.D3,
Tahasildar, Bangalore North taluk clearly mentioned
that M/s Jagan Associates has encroached 9 guntas
of land in sy.no.1 and asked him to produce necessary
documents to prove his ownership over the
encroached area. In this case defendants also
produced order passed by Tahasildar, Bangalore
North taluk which is marked as Ex.D4. On perusal of
Ex.D4, it clearly shows that learned Tahasildar after
verifying the records has passed an order dated
11/9/2009 holding that owner of M/s Jagan
Associates has encroached 9 guntas of land in sy.no.1
of Jarakabande Kaval village. This Ex.D4 clearly
28 CT0028_O.S._4654_2010_Judgment_ .
shows that M/s Jagan Associates has encroached 9
guntas of Government land constructed apartment in
'A' schedule property. The evidence on record shows
that M/s Jagan Associates has filed appeal before
Assistant Commissioner against the order passed by
the Tahasildar which is pending before Assistant
Commissioner. However, on perusal of oral and
documentary evidence produced by the defendants, it
is much clear that M/s Jagan Associates has
encroached 9 guntas of land in sy.no.1 and built the
apartment and plaintiff has purchased one of the flat
in the said apartment. The said apartment itself is
standing illegally on sy.no.1 to the extent of 9 guntas.
Hence, plaintiff is not in lawful possession and
enjoyment of the 'B' schedule property. Ex.D2 is
prepared by DWs.2 and 3 who are surveyors working
in the Department of Survey. I do not find any reasons
to doubt the genuineness of Ex.D2. Further, on the
basis of Ex.D2, the Tahasildar after giving opportunity
to the owner of the M/s Jagan Associates has passed
29 CT0028_O.S._4654_2010_Judgment_ .
order as per Ex.D4. This Ex.D4 clearly shows that
M/s Jagan Associates has encroached 9 guntas of
land in sy.no.1 belongs to Government. Tahasildar by
invoking Section 39 of the Karnataka Land Revenue
Act has passed order as per Ex.D4. Hence, from the
evidence on record it is much clear that M/s Jagan
Associates has constructed apartment by encroaching
9 guntas of Government land. The evidence on record
shows that plaintiff has purchased 'B' schedule
property in 'A' schedule property. However, schedule
property has been illegally built by encroaching into 9
guntas of land in sy.no.1. As such, construction made
by M/s Jagan Associates is not a legal construction.
Further, plaintiff has not adduced any cogent evidence
to show that M/s Jagan Associates had title over any
piece of sy.no.1. Further, plaintiff also failed to prove
that predecessor of the plaintiff by name Annaiah,
W.H.Gopal, M.R.Prakash, B.N.Kumar have been in
possession of 9 guntas of land in sy.no.1 since 1966
continuously, openly and actually to the exclusion of
30 CT0028_O.S._4654_2010_Judgment_ .
the true owner i.e., State of Karnataka. Hence,
plaintiff has utterly failed to prove the possession over
schedule property. The evidence on record clearly
shows that 9 guntas of land in sy.no.1 absolutely
belongs to government and plaintiff and M/s Jagan
Associates do not have any right, title or interest in
respect of portion of land in sy.no.1. The plaintiff is in
wrongful possession of his flat i.e., 'B' schedule
property in 'A' schedule property.
25. PW.1 in his evidence deposed that he has
purchased 'B' schedule property and he is in
possession and enjoyment of the said property. But,
evidence on record clearly shows that 'A' schedule
property was constructed by encroaching government
land to the extent of 9 guntas and plaintiff has
purchased 'B' schedule property which is situated in
'A' schedule property and hence it cannot be said that
plaintiff is in lawful possession and enjoyment of the
'B' schedule property.
31 CT0028_O.S._4654_2010_Judgment_ .
26. In this case plaintiff has not adduced any
cogent evidence on record to show that M/s Jagan
Associates has not encroached 9 guntas of land in
sy.no.1 of Jarakabande Kaval village. The documents
produced by the plaintiff does not shows that M/s
Jagan Associates has not encroached 9 guntas of land
in sy.no.1. The evidence of PW.1 is also not
corroborated by cogent material to show that
apartment was not constructed in encroached area as
contended by defendants.
27. In this case, Court Commissioner has
appointed during the pendency of the suit for local
inspection and to demarcate the property and to
submit the report. But, Court Commissioner has not
properly done her commission work. Even though
Commissioner has not properly done her commission
work, the report of the commission also shows that
there is an encroachment to the extent of some
portion by the M/s Jagan Associates. Hence, from the
32 CT0028_O.S._4654_2010_Judgment_ .
evidence on record it is much clear that M/s Jagan
Associates has constructed apartment by encroaching
Government land. Under such circumstances, it
cannot be said that plaintiff who is the owner of 'B'
schedule property in 'A' schedule property is in lawful
possession and enjoyment of the 'B' schedule
property.
28. In this case, plaintiff has produced sanction
plan with regard to "MARUTHI MANSION" and
"MAHALAKSHMI MANSION" which are marked as
Ex.P20 and Ex.P21 and said documents are marked
subject to objection. Ex.P20 relates to "MARUTHI
MANSION" and Ex.P21 pertaining to "MAHALAKSHMI
MANSION". Plaintiff has not examined author of
Ex.P20 and Ex.P21 to prove the contents of the same.
Hence, on the basis of alleged documents i.e., Ex.P20
and Ex.P21 it cannot be said that M/s Jagan
Associates has not encroached Government land.
Hence Ex.P20 and Ex.P21 are not helpful to the
33 CT0028_O.S._4654_2010_Judgment_ .
plaintiff to show that he is in lawful possession of 'B'
schedule property.
29. It is the case of the plaintiff that 'A'
schedule property is constructed on property bearing
old no.10 and 10/3 situated at 1st cross road,
Saraswathipuram, Nandini Layout, Bangalore. In this
case defendants contended that M/s Jagan Associates
who have constructed apartment namely
"Mahalakshmi Mansion" by encroaching 9 guntas of
government land in sy.no.1. Hence, it is for the
plaintiff to prove that M/s Jagan Associates has not
encroached any government property and they
constructed property in old property no. 10 and 10/3.
But in this case plaintiff has not adduced any cogent
evidence on record to show that M/s Jagan Associates
has not encroached government land as contended by
defendants.
30. In this case plaintiff also not examined the
predecessor of 'A' schedule property to show that M/s
34 CT0028_O.S._4654_2010_Judgment_ .
Jagan Associates has constructed apartment on the
property bearing old no.10 and 10/3 situated at 1st
cross road, Saraswathipuram, Nandini Layout,
Bangalore. On the other hand, defendants have
adduced cogent evidence to show that M/s Jagan
Associates has encroached 9 guntas of land belongs to
Government and constructed apartment. No doubt
plaintiff has purchased 'B' schedule property which is
situated in 'A' schedule property from the GPA holder
of M/s Jagan Associates. But, 'A' schedule property is
constructed by encroaching the government property.
Under such circumstances, it cannot be said that
plaintiff is in lawful possession of 'B' schedule
property.
31. PW.1 in his cross-examination denied that
'A' schedule property has been constructed on the 9
guntas of government land in sy.no.1. It is pertinent
to note that, PW.1 was not at all present at the time of
construction of apartment by the M/s Jagan
35 CT0028_O.S._4654_2010_Judgment_ .
Associates. Plaintiff has just purchased one flat in 'A'
schedule property without verifying the encroachment
made by M/s Jagan Associates in 'A' schedule
property.
32. In this case, even though plaintiff denied
that 'A' schedule property has been constructed on
the encroached portion but he has not placed any
cogent material to show that 'A' schedule property has
constructed without any encroachment of government
land. Hence, from the evidence of PW.1 it cannot be
said that 'A' schedule property has been constructed
without encroaching the government land as
contended by defendants.
33. PW.1 in his cross-examination stated that
he has no idea before fixation of boundaries,
compound wall was constructed by the previous
owner Prakash or not and they have not brought to
the notice of the government with regard to the
boundary dispute in respect of 'A' schedule property.
36 CT0028_O.S._4654_2010_Judgment_ .
Hence, evidence of PW.1 clearly shows that he has no
knowledge with regard to boundary dispute pertaining
to 'A' schedule property. In this case, there is a
serious dispute with regard to boundary and
encroachment of government property. Plaintiff has
approached this court seeking equitable relief of
permanent injunction against defendants. Hence, it is
for the plaintiff to prove that he is in lawful possession
of 'B' schedule property and also prove that 'A'
schedule property has not at all constructed by
encroaching government land. But, in this case,
plaintiff has not adduced any cogent evidence to show
that 'A' schedule property has not at all constructed
by encroaching government land. The evidence
adduced by the defendants clearly shows that M/s
Jagan Associates have constructed 'A' schedule
property i.e., apartment by encroaching 9 guntas of
government land in sy.no.1. Ex.D2 survey sketch
clearly reflects the encroachment made by M/s Jagan
Associates while constructing the apartment. Hence,
37 CT0028_O.S._4654_2010_Judgment_ .
from the evidence on record it is much clear that
plaintiff is not at all in lawful possession of the 'B'
schedule property since 'A' schedule property itself
constructed by encroaching 9 guntas of government
land in sy.no.1. Plaintiff failed to prove issue no.1.
Accordingly, I answer issue no.1 in the negative.
34. ISSUE NO.2: Plaintiff contended that
defendants are interfering with his peaceful
possession and enjoyment over 'B' schedule property
and trying to dispossess him from the 'B' schedule
property. While answering issue no.1, it is held that
plaintiff is not in lawful possession of 'B' schedule
property. The evidence on record clearly shows that
M/s Jagan Associates have constructed apartment
i.e., 'A' schedule property by encroaching 9 guntas of
government land in sy.no.1. Further, evidence on
record clearly shows that Tahasildar has passed
orders as per Ex.D4 by holding that M/s Jagan
Associates has encroached 9 guntas of land in
38 CT0028_O.S._4654_2010_Judgment_ .
sy.no.1. From the evidence on record it is much clear
that M/s Jagan Associates by encroaching the
government land to the extent of 9 guntas has
constructed apartment. Defendant no.1 is the public
servant and defendant no.2 is the Government of
Karnataka represented by its Principal Secretary.
Under the provisions of Karnataka Land Revenue Act,
defendants have got every right to pass orders to
remove the encroachment made by any person. In this
case evidence on record clearly shows that 'A'
schedule property has constructed by encroaching 9
guntas of land in sy.no.1. Accordingly, defendant no.1
has passed order as per Ex.D4. Since defendants
found that after enquiry that 'A' schedule property has
been constructed by encroaching 9 guntas of land in
sy.no.1, defendant no.1 by exercising his powers
conferred under the Land Revenue Act has passed
orders as per Ex.D4. Further, defendant no.1 before
proceed to pass orders, he had issued notice to the
M/s Jagan Associates as per Ex.D4. Hence, act of the
39 CT0028_O.S._4654_2010_Judgment_ .
defendants does not amounts to any interference with
the possession and enjoyment of the plaintiff over the
'B' schedule property since M/s Jagan Associates has
encroached 9 guntas of government land. Plaintiff
failed to prove alleged interference. Accordingly, I
answer issue no.2 in the negative.
35. ISSUE NO.3: In this case plaintiff sought
for the relief of permanent injunction restraining the
defendants or their officials from interfering with his
peaceful possession and enjoyment of the 'B' schedule
property or from dispossessing the plaintiff from the
suit 'B' schedule property. While answering issue
no.1, it is held that plaintiff is not in lawful possession
and enjoyment of the suit schedule property. While
answering issue no.2, it is held that plaintiff has failed
to prove alleged interference by the defendants. The
evidence on record clearly shows that M/s Jagan
Associates by encroaching the 9 guntas of government
land in sy.no.1 have constructed apartment in 'A'
40 CT0028_O.S._4654_2010_Judgment_ .
schedule property. Hence said apartment was
constructed in an encroached portion. Hence, plaintiff
is not in lawful possession of 'B' schedule property
since 'A' schedule property itself has constructed in an
encroached portion belongs to government. Hence,
plaintiff is not entitled for the relief of permanent
injunction as sought for. It is also important to note
that the suit of the plaintiff for bare injunction is not
maintainable without the relief of declaration. When
defendants seriously contending that M/s Jagan
Associates has constructed apartment in 'A' schedule
property by encroaching 9 guntas of government land
in sy.no.1, under such circumstances plaintiff ought
to have filed suit for declaration and injunction to
prove their title over the 'A' schedule property.
Moreover, evidence on record clearly shows that 'A'
schedule property has been constructed by
encroaching 9 guntas of government land in sy.no.1.
Plaintiff is not in lawful possession of suit schedule
property. Hence, plaintiff is not entitled for the relief of
41 CT0028_O.S._4654_2010_Judgment_ .
permanent injunction as sought for against the
defendants. The order passed by defendant no.1 is in
accordance with law under the provisions of
Karnataka Land Revenue Act and he passed said
order after holding due enquiry. The plaintiff who is in
wrongful possession of 'B' schedule property in 'A'
schedule property has no right to seek equitable relief
of permanent injunction against true owners.
36. It is pertinent to note that, defendant no.1
has passed order as per Ex.D4 by holding that M/s
Jagan Associates has encroached 9 guntas of
government land in sy.no.1 of Jarakabande Kaval
village. Being aggrieved by the order passed by the
Tahasildar, M/s Jagan Associates has filed appeal
before Assistant Commissioner and said appeal is still
pending. The order passed by the Tahasildar as per
Ex.D4 is not yet cancelled. Ex.D4 clearly shows that
M/s Jagan Associates has encroached 9 guntas of
land in sy.no.1 of Jarakabande Kaval village.
42 CT0028_O.S._4654_2010_Judgment_ .
37. It is also important to note that, under the
provisions of Karnataka Land Revenue Act, there is a
bar to file civil suit against the order passed by the
Tahasildar. It is held in a decision reported in ILR
1996 KAR 715 wherein Hon'ble High Court of
Karnataka held as under:
"KARNATAKA LAND REVENUE
AC, 1964 (Karnataka Act No.12 of
1964) - Sections 49 & 63 - Order by
Tahsildar appeal under Section 49(a)
- Jurisdiction of Civil Courts :
express bar under Section 63 unless
all remedies under Act exhausted
within limitation - Section 9 CPC not
applicable."
38. From the above said decision, it is much
clear that the jurisdiction of the Civil Courts to
entertain any suits or other proceedings against the
State Government on account of any act or omission
of the State Government or any Revenue Officer is
barred under Section 63 of the Act.
39. In this case, defendant no.1 by invoking
Section 39 of the Land Revenue Act has passed order
43 CT0028_O.S._4654_2010_Judgment_ .
as per Ex.D4. After passing the said order, plaintiff
has filed this suit, but there is a bar under Section 63
of the Karnataka Land Revenue Act to file Civil Suit
before the Civil Court. Section 63 of the Land Revenue
Act is an express bar to file the suit unless the
plaintiff has exhausted remedies provided under Act
by filing appeal. When there is an express bar in the
Act, section 9 of CPC will not come into aid of the
plaintiff. No doubt in this case, plaintiff has filed
appeal before Assistant Commissioner against the
order passed by Tahasildar but said appeal is still
pending before Assistant Commissioner. The plaintiff
without exhausted all remedies has provided under
the Karnataka Land Revenue Act has filed this suit.
As already stated there is an express bar under
Section 63 of the Karnataka Land Revenue Act to file
the suit before the Civil Court. Hence, suit of the
plaintiff itself is not maintainable. When suit itself is
not maintainable the plaintiff is not entitled for the
relief of permanent injunction as sought for. Even
44 CT0028_O.S._4654_2010_Judgment_ .
otherwise, plaintiff has failed to prove his lawful
possession over the suit schedule property. The
evidence on record clearly shows that M/s Jagan
Associates have constructed apartment in the 'A'
schedule property by encroaching 9 guntas of land in
sy.no.1 of Jarakabande Kaval village. Hence it is a
clear case of encroachment. When predecessor of the
plaintiff has encroached government land, the plaintiff
is not entitled for the equitable relief of permanent
injunction as sought for. Therefore, plaintiff is not
entitled for the relief of permanent injunction against
the defendants. Further plaintiff is not entitled for any
relief. Plaintiff failed to prove issue no.3. Accordingly, I
answer issue no.3 in the negative.
40. ISSUE NO.4: From my above discussions
and reasoning on issues No.1 to 3, the suit of the
plaintiff is liable to be dismissed. In the result, I pass
the following:
The suit of the plaintiff is hereby
dismissed.
45 CT0028_O.S._4654_2010_Judgment_ .
No order as to costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer, transcribed and computerised by her, Script corrected, signed and then pronounced by me, in the Open Court on this the 25th day of November 2017.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 K.Thiagarajan
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 Ranganath
DW.2 Shivanna
DW.3 Srikanta
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Certified copy of the sale deed dated 12/4/2006 Ex.P 2 And Khata certificate and Khata extracts Ex.P 3 Ex.P 4 Tax paid receipt Ex.P 5 Electricity demand bill Ex.P 6 General Power of attorney 46 CT0028_O.S._4654_2010_Judgment_ .
4. List of the documents marked for the defendants:
Ex.D 1 Certified copy of the Akarband of Sy.No.1 of Jarakabandakaval village Ex.D 2 Survey Sketch of Jarakabandakaval village [S.H.Hosagoudar] XXVII Additional City Civil Judge, BANGALORE.
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) [S.H.Hosagoudar] XXVII Additional City Civil Judge.
BANGALORE.2 O.S. 1487/2006