Bangalore District Court
Sri. D.Subramanyam vs 1. M.V. Fransis on 16 March, 2021
IN THE COURT OF I ADDITONAL CITY CIVIL &
SESSIONS JUDGE AT BENGALURU (CCH.NO.2)
Dated this 16th day of March 2021.
O.S. No.1825/2013
Present : Sri. Somashekar C. Badami, B.Com., LLB.,
I Additional City Civil & Session Judge,
Bengaluru.
Plaintiff : Sri. D.Subramanyam,
S/o. Late. D. Papa Naidu,
Aged about 73 years,
Residing at No.116,
1st Main, Gangammanagudi
Layout, BSK 1st Stage,
Bangalore - 560 050.
(Rep. by Sri. B.C. Venkatesh, Advocate)
V/s.
Defendants : 1. M.V. Fransis,
S/o. father not known to plaintiff,
Aged about 69 years,
No.31, Munirathnam Kaval,
Old Madras Road,
Binnamangala,
Indiranagar,
Bangalore.
Dead by his LR's
1(a). Sri. Jos Fransis,
S/o Late M.V. Fransis,
Aged about 46 years,1(b). Sri.
Simon Fransis,
S/o Late M.V. Fransis,
Aged about 43 years,
Both are residing at
No.159, 3rd Cross, NM Kaval,
Byappanahalli,
Behind Swami Vivekananda Road
Metro Station,
Indiranagara,
Bangalore - 560 038.
(Rep.by Sri. Shanmukha Sampige,
Advocate)
Date of Institution of the 06.03.2013
suit
Nature of the Suit (suit
for pronote, Suit for Injunction Suit
declaration and
possession, Suit for
injunction, etc.):
Date of the 24.02.2015
commencement of
recording of the Evidence:
Date on which the 16.03.2021
Judgment was
pronounced:
Total duration: Year/s Month/s Day/s
08 00 10
(Somashekar C. Badami)
I Addl.City Civil & Sessions
Judge, Bengaluru.
JUDGMENT
This suit of the plaintiff is for permanent injunction restraining the defendants or any persons claiming under them from interfering into his peaceful possession and enjoyment of the suit schedule property and for costs.
2. The plaintiff's case in nutshell are that, he was working as Deputy Manager (Design)(GRIII), Manuals and Technical Publications Group, ARDC, Design complex in M/s Hindustan Aeronautics Limited/Bharath Earth Movers Limited, Aircraft Research and Design Centre, Marathahalli and retired on attaining superannuation on 30.06.2001. For the benefit of its employees the said HAL in the year 1964 formed a Co operative Society known as "The Aircraft Employees Co operative Society Limited". The said society with the assistance of Government of Karnataka acquired totally 324 acres and 30 guntas of lands from various survey numbers in Singasandra Village, Begur Hobli, Bengaluru South Taluk for the purpose to form house sites for its members/employees. After taking of possession of all such acquired land, the society prepare the layout and get it approved from BDA as per its order No. BDA/TPM/DD/1263/9293 dated 12.11.1992, having absolute right to allot the sites to its members.
3. It is further averred that, he being the member of the said society, was alloted to him a site bearing No.1854 out of the said layout located as described in the plaint schedule vide its letters dated 30.05.2001 and 27.06.2001. After receipt of allotment letter, he has deposited the requisite amount towards purchase of suit site, for which society issued receipts. On receipt of the said amount, the society got executed the sale deed dated 31.03.2001 in his favour and registered the same under document No.2128/200112 in the Office of Sub Registrar, Bengaluru South Taluk. The society has also issued no objection certificate and based on which, on 07.08.2001 the khata in respect of suit property transferred in his name and on the same day possession certificate was also issued. Thus, the society by virtue of sale deed and possession certificate put him in possession of the suit schedule property and since then, he is in continuous possession and enjoyment of the suit schedule property. Thereafter, he has constructed asbestos roofed house with compound wall around the suit schedule property as shown in the digital photos produced along with plaint. He allegedly appointed one Mohan as a watchman for the safeguard of his suit schedule property.
4. The defendant being the adjacent owner of a site No.1853 having no manner of right, title or any interest in the suit schedule property belonging to him. In spite of this, the defendant and his family members allegedly without any reason interfering into his peaceful possession and enjoyment of the suit property. It is alleged that on 03.03.2013, he received a call from his neighbour about the fact that, the defendant along with his family members and henchmen are trying to interfere his peaceful possession and enjoyment by removing the manner material laid over the suit schedule property. Immediately, with the help of his son, soninlaw, he allegedly lodged a complaint to the jurisdictional police station against the defendant. Then, the police advised to him to approach the Civil Court for his grievance and the dispute is in civil nature and accordingly cause of action arose on 03.03.2013, when the defendants allegedly interfered by trespassing into his suit property. Hence, this suit for permanent injunction and for costs.
5. After institution of the present suit, this case is made over to this Court by Principal City Civil and Sessions Judge. In pursuance of service of summons, the defendant entered his appearance through Sri. Shanmukha Sampige, advocate and filed written statement. It is pertinent to note that the said original defendant died during pendency of trail and his LR's are brought on record as defendants No.1(a) to 1(c), who continued on the same written statement of original defendant.
6. The sum and substance of the written statement filed by defendants are that, the suit is not maintainable either in law or on facts. It is admitted that, M/s. Aircraft Employees Cooperative Society Limited became the absolute owner of the sites comprised in its layout with full right to allot the same to its members. It is admitted that, the defendant is the owner in possession of site No.1853 by the said society.
7. It is specifically denied that the plaintiff got the site as per the existing sanctioned layout plan of the said society and he is in possession of the same. It is denied that, in pursuance of the sale deed executed by the society in favour of plaintiff, he put into possession of the suit schedule property on 07.08.2001. The correctness of description of the suit property as shown in the schedule are specifically denied. It is also denied that plaintiff has constructed the asbestos roofed house and raised compound wall around the suit schedule property and has taken digital photos for the same. It is denied that one Mohan was the watchman to safeguard the suit property as appointed by plaintiff due to his lack of knowledge. It is specifically denied that on 03.03.2013, the plaintiff received phone call from the neighbouring site owner stating that the defendant, his family members and henchman is trying to interfere with the peaceful possession and enjoyment of the plaintiff over the suit property by removing the banner material lying over the suit schedule property and immediately with the help of his son and soninlaw lodged complaint against him by the plaintiff before the jurisdictional police and the same is baseless with concocted allegations of the plaintiff just to file the present false and frivolous suit.
8. Interalia, it is contended that, there is no cause of action to the suit of the plaintiff. The suit is bad for nonjoinder of the said society as a necessary party and also misjoinder of him as there is no cause of action and also he is nothing to do with the plaintiff. It is contended that, he was also retired employee of HAL and member of the Aircraft Employees Cooperative Society Limited allotted the site No.1853 in block 'A' at Kudalu and Singasandra Layout as described in the schedule of his written statement and he paid the entire amount. He became owner in actual possession and enjoyment of the said site No.1853 by virtue of registered sale deed dated 12.03.1997/06.06.1998 and rectification of registered sale deed dated 10.02.1999/11.01.1999 about certain clerical mistakes.
9. It is further specifically contended that, as per the guidance of BDA, the society modified its earlier approved residential layout plan and said modified residential layout plan got approved by BDA vide its Resolution No.124/2008 from 23.04.2008. In view of said modified plan, the society executed another rectification deed dated 08.10.2009 registered under document No.BMH103689200910 in CD.No. BMHD382 dated 13.10.2009 in favour of him in respect to his written statement scheduled property by incorporating the changes effected as per the modified approved plan. In view of this modified plan, the property of plaintiff is shrunken and his property is in tact as per the letter dated 13.02.2008 of the society issued to the BDA. Thus, the property belonging to him as described in this written statement schedule is in accordance with rectified deed dated 08.10.2009 and he is in actual possession and enjoyment of the same and khata and other records are also effected in his name according to modified layout plan and deeds and he paid the taxes regularly.
10. Such being the real facts, the plaintiff allegedly without got changing his records and regularizing the documents in respect of his allotted site from the society in accordance with modified layout plan of the society, chosen the shortcut method of filing this bare injunction suit against him on the basis of old nonoperating records with nonexisting description of the suit schedule property by suppressing the real facts to the Court succeeded in getting an interim order. In fact, the plaintiff is tried to tresspass into his written statement schedule property to deprive his right, title and possession over the same. Wherefore, it is prayed to dismiss the suit of the plaintiff with exemplary costs in the interest of justice.
11. On the basis of facts and circumstances on record from both pleadings, my predecessorinoffice has framed the following issues : ISSUES
1. Whether plaintiff proves his lawful possession and enjoyment over the suit schedule property as on the date of the suit?
2. Whether plaintiff proves alleged interference by the defendant?
3. Whether plaintiff is entitled for permanent injunction as sought for?
4. What order or decree?
12. In order to prove the case, the plaintiff examined himself as P.w1 and got marked the documents at Ex.P1 to P34. On the other hand, the defendant himself examined as D.w1 and got marked the documents on his behalf at Ex.D1 to D34. I heard both sides and perused the entire oral and documentary evidence placed by both.
13. My findings on the above issues are as under : Issue No. 1 : In the negative Issue No. 2 : In the negative Issue No. 3 : In the negative Issue No. 4 : As per final order for the following : REASONS
14. Issue No.1 : Sri. B.C. Venkatesh, the learned advocate for the plaintiff vehemently argued and replied that, the suit site No.1854 is belonging to plaintiff and suit site no. 1853 belonging to the defendant are admitted facts and in evidence, the D.w.1 clearly admitted the existence of the suit property as appeared in digital photos produced by plaintiff and in photos the surrounding wall and other structures as the case made out by the plaintiff are revealing. If at all, the suit property of the plaintiff is shrunken as contended by the defendant, then the other sites appears in photo may not be paralal to the suit site of the plaintiff and there is no substance in the contentions of the defendant. Attacking to the Ex.D5 and Ex.D26 relied upon by defendant, it is submitted that, road was not at all widened from 30 ft to 60 feet and contents of the same are only future plan, but not the fact actual in existence. The plaintiffs title in possession over the suit property and its descriptions is clearly established from the oral testimony of P.w.1 and documentary evidence at Ex.P1 to P34. Hence, he submitted that plaintiff proved his case and thereby prayed to decreed his suit, otherwise, he will be put in to hardship.
15. On the other hand, Sri. Shanmukha Sampige, the learned counsel for the defendant vehemently argued that, the plaintiff is not at all come with clean hands and he suppressed the material facts and thereby he is not entitled for Injunction. It is also submitted that the defendant clearly pleaded and stated in his evidence that, "he is nothing to do with site alloted to the plaintiff, but the plaintiff is not in possession of the site alloted to him as now described in the suit schedule." In fact, the plaintiff suppressed the revised plan prepared by society and approved the same by BDA as per Ex.D26. According to him, in the year 2009, the revised plan prepared and approved wherein, the road shown towards west widened from 30 ft to 60ft is clearly appeared from Ex.D5 and D26 and the plaintiff based on photos taken at the beginning as per the old records and superseded layout plan as per Ex.P17 try to suppressed the material facts of revised plan without getting rectification of his records as done by defendant in respect of his site as described in the written statement schedule. It is also argued that, the plaintiff ought to approach the society as per the contents of its letter as per Ex.D5 to him also, but, with intent to harm to the defendant approached this court with false here say allegations of interference without any basis without producing Ex.D5 and D25. Hence, it is prayed to dismiss the suit of the plaintiff with cost. In the light of arguments canvassed by both sides, I have carefully evaluate the oral and documentary evidence of both sides on record.
16. At the outset, it is necessary to note here that, the undisputed or admitted facts between the parties to the suit are that, both are retired employees of Hindustan Aeronautics Ltd on superannuation and during their service they were members of its employees society known as Aircraft Employees Cooperative Society. The said society with the assistance of Government of Karnataka acquired totally 324 acres and 30 guntas of land from various survey numbers in Kadlu and Singasandra Villages, Begur Hobli, Bengaluru South Taluka for the purpose to form house sites for its members/employees. After taking of possession of all such acquired land, the society prepared the layout and get it approved from BDA having absolute right to allot the sites to its members. Out of the said layout, the site No.1854 was alloted to plaintiff and 1853 is alloted to the defendant and both sites are adjacent to each other.
17. The P.w.1 is the plaintiff, who filed his affidavit relating to his chief examination. The same is as good as plaint averment and nothing is explained about the specific defence of the defendant regarding incorrectness of description and revised layout approved plan of the society in the year 2011 earlier to the present suit. The Ex.P1 is the service certificate of plaintiff issued by the authorities of HAL and the same is not in dispute. The Ex.P2 is the letter dated 30.05.2001 issued by the president of Aircraft Employees CoOperative Society Ltd., to the plaintiff and intimated the allotment of a corner site No.1854 with dimension 60+64/2X36+58/2, boundaries not disclosed in it. The Ex.P3 is the receipt dated 30.05.2001 issued to the plaintiff for having received certain sum of money towards allotment of site. The Ex.P4 is a letter dated 27.06.2001 issued by the society to the plaintiff intimating formation of layout at Kadlu and Singsandra alloted the corner site 1854 'A' block with measurement as mentioned in previous letter, but it is also not disclosed boundaries or any other description of the same. The Ex.P5 to P7 are receipts dated 30.05.2001 issued by the society for having receipt of certain sum of money from plaintiff. Likewise, Ex.P8 is also a receipt dated 782001. None of these documents thrown any light on the crux of the dispute between the parties.
18. The Ex.P9 is the original registered sale deed dated 31.03.2001 executed by the society in favour of the plaintiff in respect of sale of alloted site No.1854. The description of the sold site No.1854 in the schedule of the said sale deed is similar to that of the description of the suit schedule. The Ex.P10 is the original possession certificate dated 07.08.2001 issued to the plaintiff by the said society. The description shown in the said possession certificate is consistent to the Ex.P9 sale deed and also similar to that of the description given in the plaint. The Ex.P11 is the No objection certificate dated 07.08.2001 issued by the society to the B.D.A for transfer of Khata in respect of site No.1854 in 'A' block in the name of plaintiff. The Ex.P12 is four colour photos and Ex.P13 is the CD for the said photos to show the existence of the said site. Looking to the same, it goes to show the surrounding to the site there is compound wall and a structure is also appeared. The Ex.P15 and 16 not relevant to determine the dispute. The Ex.P17 is the layout copy appears as obtained under RTI Act and same was marked subject to objection and relevancy of the other side as it does not bear any seal or signature from the authority of Society or BDA. In the said layout plan Ex.P17(a) and (b) are marked in respect of the suit site and the site No. 1853 of defendant. The measurement of suit site and the road not mentioned in the said layout. Irrespective of this, in view of admitted facts that society initially formed such layout and got it approved from BDA I can accept that the same is relevant to appreciate the description of plaintiff's site in accordance with Ex.P9 and 11 as the case made out by plaintiff. However, the definite contention of the defendant that, subsequent to the allotments of sites, in the year 2009, the earlier layout plan was revised by the society and BDA also approved the said revised plan due to widen the road and as per the said revised plan, the measurement of some of the sites alloted were got changed and there upon the society got executed rectification of the documents consistent to the modified approved layout like him, but the plaintiff not at all get it rectified and thereupon the site alloted to the plaintiff as per records produced by him is not actually in existence as now described in the suit schedule. Thus, rather than possession of the plaintiff over the site, but his possession to the said site as described in the schedule is much in dispute and the burden is heavily upon the plaintiff to show the correctness of the same as on the date of suit.
19. The Ex.P21 is the application copy given by plaintiff to BDA for issuance of Khata in respect of his alloted site no. 1854. The date of said application is appears on the seal of BDA as 22.02.2014. Though NOC was given by the society in the year 2001 as per Ex.P11, applied for khata in the year 2014. The present suit filed in the year 2013 and at the time of filing of the suit by the plaintiff, he was not produce Khata certificate in respect of his suit site. From Ex.P21, it goes to show that, there was no khata certificate in respect of suit site in the name of plaintiff at the time of filing of this suit. In fact, P.w.1 at page number 9 of his cross examination clearly admitted that "khatha of site number 1854 i.e., suit property is not mutated in his name."
20. It is pertinent to note that, two years after filing of the present suit, subsequent to the cross examination of P.w.1, by way of reexamination on 2011 2015, the plaintiff produced Ex.P23 to P34. The Ex.P23 is the BDA tax receipt for the year 2007 and goes to show that the suit property is a vacant site. The Ex.P24 is the Khata Certificate issued by BDA at first time on 14.09.2015 i.e., subsequent to the suit. Ex.P25 is the Khata Certificate dated 14.10.2015 issued by BBMP. Both are disclosed only the site number but not any other description as described in the schedule. The Ex.P26 is the Assessment extract of the suit site issued as per order dated 14.09.2015. The measurement shown Ex.P26 is as per the description given in the plaint schedule. The Ex.P27 to 34 are tax paid receipt for the year 2008 to 2016 The Ex.P18 and 19 are issued on 28.09.2013 and Ex.P20 and connected electricity bills and receipts are subsequent to the said date 28.09.2013. The present suit filed on 16.03.2013. Therefore, all these documents appears to be born subsequent to the suit and the same cannot be looked into for determination of actual possession of the plaintiff over the suit property as described in the plaint schedule as on the date of suit. Muchless, none of these documents is explained anything about the contentions raised by the defendant. This apart, when there is no khata of BBMP the compound wall and construction said to have put up by plaintiff is without any permission and the same appears as illegal.
21. During the course of cross examination, the P.w.1 deposed that, his site is a corner site and he did not gone though the layout plan at the time of registration of sale deed of his site. On confrontation of Ex.P17/layout, it is admitted by him that on the western side of his site there is 60 feet road, but he did not know how many sites are located in the line of his site No.1854. Of course, he denied the suggestion that, on the western side of his site No.1854 there was 30 feet road in the year 2001, however, he did not know in the year 2011 a revised plan was prepared in respect of entire layout consisting of site No.1853 and 1854 on confrontation of such revised layout plan as relied upon by the defendant. He is not admitted that the earlier 30 feet road was converted into 60 feet in the revised plan and due to which, 3/4th portion of his site No.1854 has gone to formation of said road. In view of this oral testimony of the P.w.1, the onus shift on the defendant to show any such revised plan or variations in the suit site of the plaintiff subsequent to the allotment as per Ex.P9 to 11 and 17. Accordingly, at this juncture, I required to seen the evidence placed by the defendant to that effect.
22. D.w.1 in his chief examination reiterated the contentions taken in his written statement. In support of his testimony, he produce the documents from Ex.D1 to Ex.D34. The Dx.D1 is the society letter to the defendant in respect of first call for payment of amount for the allotment of 40x60 site as per his application. Ex.D2 is the registered sale deed dated 12.03.1997 in respect of site no. 1853 alloted to the defendant. Ex.D3 is the registered rectification deed dated 11.01.1999 regarding clerical mistakes. The Ex.D4 is registered deed of rectification deed dated 08.10.2009 executed by society in favour of defendant about correction of mistakes of measurements and boundaries in the earlier deeds in respect of his W.S. schedule site. The Ex.D6 is the No objection certificate issued by society to the BDA in respect of site of the defendant. The Ex.D7 is the possession certificate of site no. 1853 issued to the defendant by the Society. The Ex.D8 is the Khata certificate dated 24.03.2012 issued by BDA in the name of defendant in respect of his site No.1853. The Ex.D9 to Ex.D20 are tax paid receipts in respect of the defendant's site since 2007 to 2012. The Ex.D21 is the assessment extract in respect of the site belonging to the defendant. The Ex.D22 and 23 are encumbrance certificates relating to the property of defendant. The Ex.D24 is the No dues certificate/A.R.V. Letter dated 24.03.2012 issued by BDA in respect of site No.1853 of the defendant. Thus, all these documents are revealing about the title and possession of written statement schedule site of the defendant, which is admittedly exist adjacent to the suit property and documents relied upon by both side revealing the same. In fact, none of these documents is relevant to the matter in dispute.
23. The Ex.D5 is a letter No. A.E.C.S/KSL/ BDA/TPM/183 dated 13.02.2008 issued by the Society to the BDA and copy of the same to the defendant. It is relevant to extract the contents of the said letter which reads as under : ವಷಯಕಕಕ ಸಸಬಸಧಸದಸತಕ ಈ ಮಮಲಕ ತಮಮ ಗಮನಕಕಕ ತರಬಯಸಸವವದಕದನಕಸದರಕ, ಕನರರಟಕ ಘನ ಸಕರರರವವ ಭಮಸಸಧದನ ಕರಯಯಯನಸಯ ಬಕಸಗಳಮರಸ ದಕಕಣ ತರಲಮಲಕಸ, ಬಕದಗಮರಸ ಹಕಮದಬಳ, ಸಸಗಸಸದದ ಗರದಮ ಹರಗಮ ಆನಕದಕಲಲ ತರಲಮಲಕಸ, ಸರರರಪವರ ಹಕಮದಬಳ, ಕಮಡಸಲ ಗರದಮಗಳಗಕ ಸಕದರದ ವವಧ ಸರಕರ ನಸಬರಸಗಳ ಜಮದನಸಗಳನಸನ ಭಮ ಸರಸಧದನಪಡಸಕಕಮಸಡಸ ನಮಮ ಸಸಘಕಕಕ ವಸತ ಬಡರವಣಕ ನರರರಣಕರಕಗ ಹಸರಸಸತರಸದ ಒಟಸಟ 313 ಎಕರಕ 24.33 ಗಸಸಟಕ ಜಮದನಸಗಳಲಲ ಸಸಘವವ ವಸತಯದಗಗ ಬಡರವಣಕಯನಸನ ನಮರಸ ತನನ ಸದಸಗರಸಗಳಗಕ ಹಸಚಕಕ ರರಡ ಬಡರವಣಕಯ ನದಲನಕಕಕ ಅನಸಮದದನಕಗರಗ ಬಕಸಗಳಮರಸ ಅಭವವದದ ಪರದಧಕರರಕಕಕ ಈಗರಗಲಕದ ಸಲಲಸರಸತಸದಕ. ಈ ಬಡರವಣಕಗಕ ಸಸಬಸಧಸದಸತಕ ಈಗರಗಲಕದ ಪರದಧಕರರದಸದ ಅನಸಮದದನಕಯರದ ನದಲನಕಕಯಲಲರಸವ ಎ ಬರಲಕಲ ನ ನರಕದಶನ ಸಸಖಕಗ 1853 ನಸನ ಸಸಘದ ಸದಸಗರರದ ಶದದ ಫರದನನಸಲ ಎಸಬಸವವರಗಕ ಹಸಚಕಕ ರರಡ ನಕಮದಸದಣಯನಸನ ರರಡಕಕಮಟಟರಸತಸದಕ. ನಸತರ, ಈ ನರಕದಶನಕಕಕ ಸಸಬಸಧಕಲಲಸಸವ ರಸಕಸಯಸ ಕಮಡಸಲ ಗಕದಟಲ ನಸದ ಪರಪಲನ ಅಗದಹರರವನಸನ ಸಸಪಕರಸಸವ ರಸಕಸಯರಗದಸಯದಯರಸದ ಮಸಸದನ ದನಗಳಲಲ ಹರಲ 30 ಅಡ ರಸಕಸಯನಸನ ಅಗಲದಕರಣ ರರಡಬಕದಕರದ ಪರಸಸತ ಉಲಲಣರರಗಬಹಸದಕಸದಸ ಸಸಘವವ ಮನಗಸಡಸ ಸರವರಜನಕರ ಅನಸಕಮಲಕರಕಗ ಈಗರಗಲಕದ ಅನಸಮದದನಕಗಕಮಸಡ ನದಲನಕಕಕಯಲಲರಸವ 30 ಅಡ ಅಳತಕಯ ರಸಕಸಯನಸನ 60 ಅಳತಕಯ ರಸಕಸಯನರನಗಸ ರರಪರರಡಸರಸತಸದಕ. ಈ ವಷಯಕಕಕ ಸಸಬಸದಸದಸತಕ ದನರಸಕಕ 12.02.2008 ರಸದಸ ತಮಮ ಸಮಸಮಖದಲಲ ಸಸಘದ ಅಧಗಕಕರಸ ಹರಗಸರ ನರಕದಶನ ಸಸಖಕಗ 1853 ರ ರರಲದಕರಕಮಸದಗಕ ರರತಸಕತಕ ನಡಕಸರಸವಸತಕ ಈ ರದತ ರಸಕಸಯನಸನ ಅಗಲದಕರಣಗಕಮಳಸದಯರಸದ ನರಕದಶನ ಸಸಖಕಗ 1854 ಮಮಲಕ ನರಕದಶನರರಗದಯರಸದ ಇದರ ಅಳಕಯಲಲ ಹಕಚಸಚ ಕಡಮಯರಗರರಸತಸದಕಯದ ಹಕಮರತಸ ನರಕದಶನ ಸಸಖಕಗ 1853 ಕಕಕ ಯರವವದಕದ ರದತಯ ತಕಮಸದರಕಯರಗವವದಲಲರಕಸದಸ ತಮಗಕ ಗಮನಕಕಕ ತರಲರಗದಕ. ಈ ವಷಯದ ಬಗಕಗ ಸಸಘವವ ಸದರ ನರಕದಶನ ಸಸಖಕಗ 1854 ರ ರರಲದಕರಕಮಸದಗಕ ಬಡರವಣಕಯಲಲಯ ವಸಸಸಸಸಯ ಬಗಕಗ ವವರರರಗ ಪತದವಗವಹರ ನಡಕಸ, ಸಸಘದ ರರಪರರಟತ ಬಡರವಣಕಯ ನದಲನಕಕಯಸ ಪರದಧಕರರದಸದ ಅನಸಮದದನಕಯರದ ತಕಕಣದಸದಲಕದ ಸದರ ನರಕದಶನ ಸಸಖಕಗ 1854 ನಸನ ಅದರ ರರಲದಕರಗಕ ಈಗರಗಲಕದ ನಕಮದಸದಣಯರದ ಕದಯ ಪತದವನಸನ ಸರಪಡಸ (ತದಸಯಪಡ) ನಕಮದಸದಣ ರರಡಸಕಕಮಡಲಸ ಅಥರರ ಬದಲದ ವಗವಸಕಸ ರರಡಲಸ ಸಸಘವವ ಬದಯರರಗರಸತಸದಕ.
ಆದಸದರಸದ, ಈ ಮಮಲಕ ತಮಮಲಲ
ಕಕದಳಕಕಮಳಸಳವವದಕದನಕಸದರಕ, ಸಸಘವವ ಈಗರಗಲಕದ
ಅನಸಮದದನಕಗರಗ ಬಕಸಗಳಮರಸ ಅಭವವದಸ ಪರದಧಕರರಕಕಕ ಸಲಲಸರಸವ ರರಪರಟತ ನದಲನಕಕಕಯನಸನ ಅನಸಮದದಸ ಕಕಮಡಬಕದಕಕಸದಸ ಹರಗಮ ಈ ಮದಲಕ ವವರಸರಸವ ವಗವಹರರವನಸನ ಕಕಕಗಕಮಳಳಲಸ ಅನಸಕಮಲ ರರಡಕಕಮಡಬಕದಕಕಸದಸ ಕಕದಳಕಕಮಳಸಳತಕಸದರಕ.
24. The Ex.D25 is the letter No. A.E.C.S/KSL/ BDA/124 dated 11.01.2010 of the president of the Society issued to Asst. Engineer of BDA and contents of the same are as under : ಈ ಮದಲನ ವಷಯಕಕಕ ಸಸಬಸಧಸದಸತಕಸಸಗಸಸದದ ಬಡರವಣಕಯ ನರಕದಶನ ಸಸಖಕಗ 1853 ರ 40x60 ಅಳತಕಯ ನರಕದಶನವನಸನ ಪರದನನಸಲ ಎಸಬಸವವರಗಕ ಹಸಚಕಕ ರರಡ ನಕಮಸದಣಕ ರರಡಕಕಮಡಲರಗದಕ. ಇದರ ಪಕಕದ ನರಕದಶನ ಸಸಖಕಗ 1854 ಸಸಬದಮಣ ಎಸಬಸವವರಗಕ ಹಸಚಕಕ ರರಡ ನಕಮಸದಣ ರರಡಕಕಮಡಲರಗದಕ. ಈ ಬಡರವಣಕಯ 40 ಅಡ ರಸಕಸಯನಸನ 60 ಅಡಗಕ ವಸತರಸಲರಗ ನರಕದಶನ ಸಸಖಕಗ 1854 ರ ಅಧರದಷಸಟ ಭರಗದಲಲ ರಸಕಸ ಹರದಸ ಹಕಮದಗರಸವವದರಸದ ನರಕದಶನ ಸಸಖಕಗ 1854 ರ ಹಸಚಕಕದರರರರದ ಸಸಬದಮಣಯವರಗಕ ಹಕಮಸ ಬಡರವಣಕಯರದ ಕರಮನಹಳಳ ಚಕಕನಹಳಳ ಬಡರವಣಕಯಲಲ ಬದಲಯರಗ ನದಡಲರಗಸವವದಸ. ಈ ಮದಲಕಸಡ ವಚರರ ಈಗರಗಲಕ ಸಹರಯಕ ಕರಯರಪರಲಕ ಅಭಯಸತರರ ಗಮನಕಕಕ ತರಲರಗದಕ ಅದಸದರಸದ ನರಕದಶನ ಸಸಖಕಗ 1853 ಖರತ ಬಡಸಗಡಕ ರರಡಕಕಮಡಬಕದಕಕಸದಸ ಕಕದಳಕಕಮಳಸಳತಕಸದರಕ.
25. The Ex.D26 is the authenticated modified layout of the society and approved by BDA in respect of the suit survey numbers and site in the year 2009. It bears seal and signature of the BDA authority. Looking to the said modified layout, the road appears in the photos of the plaintiff shown in this layout as 18.28 meters, which comes to 59 feet 11.685 inches, i.e., approximately 60 feet and accordingly, the suit site of the plaintiff shown in Ex.D26 is not like that of in the Ex.P17. This apart, in Ex.D26 modified approved layout plan, it is clearly written as " this modified layout plan supersedes the layout plan issued on 09.03.2001 vide No. 2733" Thus, the testimony of the defendant that in view of this modification of the layout plan, the area of the site of plaintiff is shrunken and he is not possible to continue in possession of an area as described in the schedule of the plaint. The Ex.D27 to 33 are the colour photos and Ex.D34 is the C.D. also supported the same.
26. Now, I coming back to the oral testimony of P.w.1, who in his cross examination at page No.8 last line clearly admitted that, "the Society has written a letter to him that portion of his site is acquired for formation of road. He admitted that, he has not produced the said letter before the court, admittedly he has no impediment to produce the said letter of the society." Thus, it goes to show that he is suppressed the material facts and in the absence of such documents, the Ex.D5 is to be admissible and I draw an adverse interference to the case of plainitiff though he deposed his absence of knowledge about the same. The testimony of P.w.1 during further cross examination dated 13.03.2020 is also crucial. It is stated by him that, "I have not produced the letter given by the society regarding providing of alternate site to me." Of course, he deposed that road is not yet widened and his site is not gone to the road. From this testimony of P.w.1 it can be gathered that, he had knowledge about modified plan of the society and approved the same by the BDA as contended by defendant. It is admitted that the society has given the letter to him that road will be widened in my site No.1854, though he got knowledge about revised plan, but admittedly he is not produce the same. Though, he denied the suggestion that, his site is not in existence at the spot as per the measurement shown in the schedule, but the modified approved layout as per Ex.D5, 25 and 26 are clearly reflected the said case of the defendant. Admittedly, the plaintiff has not questioned the BDA or the society and no action taken against them and there upon, he impliedly knowing full well keep mum and accepted the effect of the actual status of the suit property as per modified layout and letters as per Ex.D5, 25 and D26. In fact the date of all these documents is prior to the institution of the present suit. Therefore, I am of the view that, the actual existence of the suit property as described in the plaint and its possession of the plaintiff as on the date of suit is not clear and doubtful. Of course, by referring the testimony of D.w1 in the cross examination, the learned counsel for the plaintiff argued that the possession of the plaintiff as shown in the photos are admitted and he proved the case. However, the photos not at all depicted the measurement and other description and in view of Ex.D.5, 25, and 26 it is not proper to relied upon photos on record relied upon by both and therefore I have not given any much importance to the photos and there is no evidence to show who and when it was taken. This apart, the suppression of Ex.D5, 25, and 26 by the plaintiff and not examining the president of the society to speak that the modified layout as per Ex.D26 was not at all acted upon and still the existence of alloted sites are as per earlier layout plan/Ex.P17 in support of the case of the plaintiff. In the absence of any such evidence, I am unable to accept the same. Looking from any angle, I am of the opinion that, the plaintiff failed to establish the actual existence of suit site as described in the suit schedule and also his possession over the same inspite of the fact of modification of the layout as per Ex.D26. Hence issue No.1 is answered in the negative.
27. Issue No.2 : P.w.1 repeated the alleged interference of the defendants in his chief examination and also produce Ex. P14 the endorsement issued by Parappana Agrhara Police for having receipt of complaint against defendant about such allegations. It is pertinent to note here that, the plaintiff is highly educated and a responsible retired official of HAL. Though, the plaintiff himself admitted and shown the site no.1853 of defendant towards east in the schedule, but during the course of cross examination, it is stated as " I do not know that site No.1853 is alloted to defendant. I do not know who is the owner of site No.1853. I have not made any enquiry that who is the owner of site No. 1853." Such being his testimony, it is too difficult to believe his case as he pleaded in the plaint that the defendant being owner of site No.1853 on 03.03.2013, he heard about their interference without any reasons. In view of Ex.D5, 25 and 26, I do not accept the pleadings of the plaintiff that, there is no any reason on one hand and on the other hand, the very pleadings about interference of defendants dated 03.03.2013, if minutely read out one can very well say that, it is hearsay but not direct evidence of the P.w.1. Who saw such an illegal act of the defendant and informed him through phone is a material witness to establish the same, but no such person is examined by plaintiff. This apart, as per own pleadings in the plaint, it goes to show that he was appointed one Mohan as a watchman to look after the suit site. If it is so, atleast such of his employee ought to informed to plaintiff about illegal interference as alleged in the plaint if it was real. But, the said Mohan is also not examined. No doubt, as pointed out D.w.1 during his cross examination deposed that he visited the Parappa Agrahara P.S after 03.03.2013. It may be natural that on receipt of complaint from plaintiff the police called upon the defendant and enquired, but it does not mean to say that such allegations are true and proved. The contention of the defendant is very clear that he is nothing to do with the site alloted to the plaintiff, but his apprehension is that in view of modified approved layout though the site of the plaintiff is shrunkened with oblique motive to encroach his written statement site, by suppressing material facts the present suit is filed against him without any base for alleged cause of action. The hearsay testimony of Pw.1 without any support of direct evidence, I am of the view that, the plaintiff failed to prove the alleged illegal interference of the defendant. Hence, issue No.2 is answered in the negative.
28. Issue No.3 : The suit of the plaintiff is one for permanent injunction against the defendants. Basically, the plaintiff failed to prove the correctness of the existence of suit property and his actual possession over the property as on the date of his suit as the same appears to be doubtful in view of the fact that the layout approved plan of the society comprising suit site as per Ex.P17 is superseded by its modified approved layout plan as per Ex.D26 knowing full to the plaintiff by virtue of society letter to him as per Ex.P5 and 25. However, the plaintiff nowhere in the plaint disclose about the same and suppress such material facts and get interim order from this court. Muchless the interference appears as here say and such hearsay evidence is not admissible in evidence. Therefore, the plaintiff failed to prove the interference with direct evidence and thereupon the arguments of the defendants that the said allegation is concocted for the purpose of this suit cannot be possible to ignore. Thus, in my opinion, the plaintiff not only suppress the material facts but, also not approach to this court with clean hands to seek discretionary relief of permanent injunction as sought for. Therefore, the plaintiff is not entitled for the reliefs as sought for. Hence, my findings on issue No.3 is in the negative.
29. Issue No.4 : In the result of my entire discussions on all the above issues No.1 to 3, I proceed to pass following : ORDER The suit of the plaintiff is hereby dismissed with cost.
Draw decree accordingly.
(Dictated directly on computer to the Stenographer, who typed and computerized. Corrected and then pronounced by me in the open court on this the 16th day of March 2021.) (Somashekar C. Badami) I Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF : PW.1 : D. Subramanyam DOCUMENTS MARKED ON BEHALF OF PLAINTIFF: Ex.P1 Copy of employee service certificate Exs.P2 to P4 Letters dated 30.05.2001 and 26.07.2001 Exs.P5 to P8 Three Receipts dated 30.05.2001 and 07.08.2001 Ex.P9 Original sale deed dated 31.03.2001 Ex.P10 Possession certificate Ex.P11 No objection certificate dated 07.08.2001 Ex.P12 Four colour photos Ex.P13 C.D Ex.P14 Endorsement issued by police Exs.P15 & P16 Khata acknowledgment issued by BDA and receipts Ex.P17 Plan prepared by BDA Ex.P18 Letter issued by the KEB Ex.P19 BESCOM meter receipt Ex.P20 Eight electricity bills and receipts Ex.P21 Khata application acknowledgment Ex.P22 Fifteen photos Ex.P23 Property tax receipt dated 01.04.2007 Ex.P24 Khata Certificate issued by the BDA dated 14.09.2015 Ex.P25 Khata Certificate issued by the BDA dated 14.10.2015 Ex.P26 Assessment extract for the year 201516 Exs.P27 to P34 Tax Paid receipt for the year 200809 to 201516 WITNESSES EXAMINED FOR THE DEFENDANT: DW.1 : M.V. Francis DOCUMENTS MARKED ON BEHALF OF DEFENDANT: Ex.D1 Letter dated 25.01.1998 Ex.D2 Copy of sale deed dated 12.03.1997 Ex.D3 Rectification deed dated 10.01.1999 Ex.D4 Rectification deed dated 08.10.2009 Ex.D5 Letter dated 13.02.2008 Ex.D6 No objection certificate dated 11.11.2006 Ex.D7 Possession certificate Ex.D8 Khatas issued by BDA Exs.D9 to D20 Tax receipts Ex.D21 Khata extract Exs.D22 & D23 Two Encumbrance certificates Ex.D24 Letter issued by the BDA Ex.D25 Letter issued by AECS to the Asst.
Executive Engineer, BDA Ex.D26 Modified certificate copy of the plan Exs.D27 to D33 Seven colour photographs Ex.D34 C.D (Somashekar C. Badami) I Addl.City Civil & Sessions Judge, Bengaluru.