Bangalore District Court
Mr. Thomas Lobo vs Mr. R.Jayaprakash on 29 July, 2015
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE City (C.C.H.No.6)
This the 29th day of July, 2015
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O. S. No.2036/2007
PLAINTIFF: Mr. Thomas Lobo
S/o Mr. Francis Lobo,
Aged about 52 years,
R/at No.53, Coconut grove,
Horamavu, Bangalore- 43,
(By Sri.Amaresh A Angadi, Advocate)
Vs.
DEFENDANTS: 1. Mr. R.Jayaprakash
S/o R.Ranganathan,
Aged about 42 years.
2. Smt. Jessica Mary Ann
W/o R.Jayaprakash,
Aged about 37 years.
Both are R/at No.54,
Coconut Grove, Horamavu,
Bangalore- 560 043.
3. P.Narayanaswamy
S/o late Poojappa,
Aged about 66 years,
R/at No.3BC-903,
9th 'A' Main road, 1st Block,
Kalyanagar, Bangalore- 43
(By Sri.MSN, Advocate for D1 & 2
Def.3: exparte)
2 O.S.2036/2007
Date of institution of the suit: 12.03.2007
Nature of the suit: Declaration & Injunction
Date of commencement of 17.09.2008
recording of evidence:
Date on which Judgment was 29.07.2015
pronounced
Duration Days Months Years
17 04 08
JUDGMENT
The instant suit filed by the plaintiff against the defendants is one for declaration of easementary right of the plaintiff such as light and air and usage of entrance towards the southern side of the 30 feet road of the plaintiff's 'A' schedule property and inconsequence mandatory injunction, directing the defendants 1 and 2 to remove the encroached schedule 'B' property, which is portion of 30 feet road, towards southern side of plaintiff's 'A' schedule property and for permanent injunction restraining the defendants or anybody claiming through the defendants from using 'B' schedule property as their private property and also for costs and such other reliefs.
3 O.S.2036/2007
2. a) The plaintiff has stated that he is working outside Bangalore and he is represented by his wife, who is the GPA holder of the plaintiff. He further stated that he is the absolute owner in possession of house bearing No.53 (site No.53), Coconut grove, khatha No.356 measuring East to West 48+49/2 feet and North to South 61+62/2 situated at Horamavu, K.R.Puram Hobli, Bangalore East Taluk, which is morefully shown in the plaint schedule.
b) The plaintiff has stated that he has purchased the 'A' schedule property through a registered sale deed dated 22.6.2004 from the 3rd defendant in the form of site. Thereafter the plaintiff has constructed a house as per the approved plan and residing therein with his family members. Copy of the sale deed is also produced. Copies of permission for construction of the house, tax paid receipts, property extract, Encumbrance Certificate of the plaint 'A' schedule property are also produced. He also stated that the original documents were kept in the bank for the 4 O.S.2036/2007 purpose of raising loan. He also stated the boundaries of the plaint 'A' schedule property in para- 6 of the plaint, similar to the one shown in plaint 'A' schedule and also stated that plaintiff's property is a corner site and for that, he has paid more money to purchase the same.
c) The plaintiff also stated that the said layout has been formed after taking the order of conversion from the competent authority. The said layout plan has also been approved by Horamavu Grama Panchauyath on 2.4.2003 and copy of the layout plan is also produced.
d) According to the plaintiff, defendants 1 and 2 have purchased site No.54 of the said layout, which is situated on the South-East corner of the layout i.e. opposite to the plaint 'A' schedule property towards southern side. A 30 feet road is also running East to West in between the plaintiff's 'A' schedule property and site No.54 belongs to the defendants 1 and 2 and accordingly sketch is also produced. This aspect is 5 O.S.2036/2007 also clear from the sale deed of the plaintiff in respect of the plaint 'A' schedule property and also from the sale deed of the defendants 1 and 2 in respect of site No.54 and also as per the layout. In para-8 of the plaint, the plaintiff also given boundaries of site No.54, which belongs to the defendants 1 and 2 as East by private property, West by site No.55, North by road and South by private property and he also produced certified copy of the sale deed of the defendants 1 and 2 which is dated 30.6.2004.
e) He further stated that he has constructed house in site No.53 and he has got entrance towards southern side road i.e. opposite to the house of defendants 1 and 2 and also towards eastern side, since the plaintiff's site being a corner site and accordingly plaintiff is in utilizing the both entrances.
f) The plaintiff also stated that the defendants 1 and 2 also constructed a house in their site No.54 and thereafter started to encroach 30 feet road, which is situated in between the houses of plaintiff and 6 O.S.2036/2007 defendants 1 and 2 i.e. the road running East to West measuring 30 feet and same has been blocked by defendants 1 and 2 by putting temporary wall on the eastern side etc. He also stated that the said 30 feet road, which is running East to West is a dead end towards the eastern side and the same has been blocked and thereby the plaintiff is unable to use the same to reach the other side and further the defendants 1 and 2 tried to encroach the said entire road and even blocked the plaintiff's southern entrance in the year 2005. According to the plaintiff, since he was away from city on account of his employment, he has instructed his wife- GPA holder to take necessary steps and accordingly his GPA holder has given number of representations to panchayath and one such representation was given on 10.11.2005. The panchayath people appears to have colluded with the defendants 1 and 2 and thereby panchayath authority failed to take any action in this matter. He further stated that in the month of November 2005, the panchayath authorities called the 7 O.S.2036/2007 defendants 1 and 2 and directed them to remove the encroachment made on the said 30 feet road and the defendants agreed to remove the said encroachment after the gruhapravesham on 16.11.2005. But the defendants 1 and 2 failed to remove the encroachment of the said blocking of 30 feet road etc.
g) The plaintiff also stated in para-11 of the plaint with regard to the collusion of defendants 1 and 2 with the panchayath people and also stated with regard to lodging of police complaint and registration of criminal case in crime No.368/2005 on 17.12.2005. The plaintiff also stated that defendants 1 to 3 colluding with each other have created and concocted the sale deed in respect of the said portion of the road alleging that same is a site bearing No.54/1 measuring East to West 47.5 feet and North to South 30 feet, by showing the road portion as site No.54/1 and accordingly created bogus and concocted sale deed on 11.11.2005 and 'B' schedule property is having boundaries as East by private property, West 8 O.S.2036/2007 by road, North by flat No.53 and South by flat No.54 and copy of the sale deed is also produced.
h) The plaintiff has also stated that defendants 1 and 2 solely started to block the entrance of the plaintiff's southern side while putting up a gate in between the properties of the plaintiff and defendants 1 and 2 and also tried to block the entrance to the plaintiff on the southern side by closing the 30 feet road etc. He also stated with regard to filing of representation in this regard. In para-14 of the plaint, he also stated that the defendants are powerful and influential persons and also stated that defendants 1 and 2 completely blocked the easementary right of way towards southern side of plaintiff's 'A' schedule property etc. He also stated that the defendant in collusion with each other created concocted document and sold the road portion as a site as described in the plaint 'B' schedule, which is not only illegal, but also contrary to the layout plan etc. He also stated that defendants 1 9 O.S.2036/2007 and 2 solely started to extend their house No.54 towards 'B' schedule property and collected building materials on 10.3.2007 and thereby tried to make further construction in the plaint 'B' schedule property. He also pleaded cause of action and the valuation that was made in the plaint and praying this Court to decree the suit as prayed for.
3. The plaint 'A' and 'B' schedule reads as follows:
'A' SCHEDULE The house bearing No.53 (site No.53), Coconut Grove, khatha No.356, measuring East to West 48+49/2 feet and North to South 61+62/2 feet, situated at Horamavu village, K.R.Puram Village, K.R.Puram Hobli, Bangalore East Taluk, bounded on:
East by: Private property;
West by: Road;
North by: Site No.52; and
South by: Road.
'B' SCHEDULE
All that piece and parcel of the property bearing flat No.54/1, in converted Sy.No.131/2, vide converted order No.BDS/ALN/SR/E/71/2002- 03 dated 20.11.2002 by the Special Deputy Commissioner, Bangalore situated at Horamavu village, K.R.Puram Hobli, Bangalore East Taluk, 10 O.S.2036/2007 measuring East to West 47.5 feet and North to South 30 feet, in all measuring 1425 square feet and bounded on East by: Private property;
West by: Road;
North by: Site No.53; and
South by: Flat No.54.
4. a) The defendants 1 and 2 filed their written statement denying all the plaint averments and further contended that the plaintiff is not entitled for the relief of easement of light and air.
b) Defendants 1 and 2 further contended that they acquired absolute right, title and interest over the immovable property bearing No.54/1, formed out of converted land in Sy.No.131/2 of Horamavu village, K.R.Puram Hobli, Bangalore East Taluk measuring East to West 47.5 feet and North to South 30 feet pursuant to a registered sale deed dated 11.11.2005. The boundaries to the schedule discloses that the defendants 1 and 2 are also the owners of site No.54 situated on the southern side of the property so conveyed by the vendor 11 O.S.2036/2007 Dr.P.Krishnamurthy represented by GPA holder P.Narayanaswamy. Copy of the sale deed is also produced. Thus it is clear that the defendants 1 and 2 are the owners of immovable property bearing flat No.54 measuring North to South 60 feet and East to West 47.5 feet and also flat No.54/1 measuring East to West 47.5 feet and North to South 30 feet and both the properties put together measures East to West 47.5 feet and North to South 90 feet and bounded on East by Private property, West by Road, North by Flat No.53 belongs to plaintiff and South by private property more fully described hereunder and hereinafter referred to as the Written statement schedule property.
c) Defendants 1 and 2 further contended that the measurements and boundaries to the sale deed is in conformity with the layout plan issued by the competent authority and ever since the date of acquisition, defendants 1 and 2 are in peaceful possession and enjoyment of the property so acquired 12 O.S.2036/2007 having secured khatha in their favour and having paid taxes from time to time, and also have secured license and sanction plan for putting up of residential building over flat No.54. The copy of the sale deed is produced. Defendants 1 and 2 further stated that they availed loan for putting up construction and have incurred huge liabilities.
d) They further contended that in so for as the acquisition of flat No.54/1 is concerned the same has been assigned as VP Khatha No.357/A. Defendants 1 and 2 have only put up compound wall and a gate so as to make use of the said space for parking/ gardening etc. This is demonstrated from the photographs produced by them. They further stated that the plaintiff at the time of defendants erecting the gate and the compound wall in flat No.54/1 did not chose to object or complain about any violation or alleged encroachment or there was prevention for free flow of air and light, since the plaintiff was very well aware as regards the acquisition of flat No.54/1 13 O.S.2036/2007 by these defendants and further it is the defendant No.1 who was responsible to construct the building of the plaintiff taking advantage of the kindness and goodness of defendants 1 and 2 requested the defendants 1 and 2 permit the plaintiff to provide a gate in their property on their southern side, so that the said gate would be used by the plaintiff's children to have access towards the garden area absolutely belonging to these defendants, which was considered as could be seen from the photographs which shows demolition of compound wall belonging to the plaintiff and erection of a gate on the southern side of the plaintiffs property.
e) Defendants 1 and 2 further contended that the plaintiff's wife engaged the services of 1st defendant, who is a builder and contractor to construct the plaintiff's building in site No.53 and the plaintiff so also the 1st defendant entered into a memorandum of understanding dated 24.8.2005 by which both parties agreed to reduce the terms and 14 O.S.2036/2007 conditions into writing. They also stated that a sum of Rs.38,00,000/- was paid on the date of memorandum of understanding towards the work so completed and a sum of Rs.4,60,000/- was agreed to be paid by the plaintiff to the 1st defendant for completing the balance work within specified time. The 1st defendant completed the work and the wife of the plaintiff failed to pay the balance amount of Rs.1,50,000/- insptie of repeated requests and demand and accordingly legal notice was also issued and the same was not acknowledged by the plaintiff and the same is refused etc. They also stated that the 1st defendant also filed a suit in O.S.2092/2006, which is also pending. So insptie of all these, in order to harass the defendants, plaintiff's wife also field police complaint and defendants are facing criminal case in C.C.No.24423/2006. This also demonstrates that plaintiff is having ill-will against defendants 1 and
2. With the said ill-will, the plaintiff started creating nuisance in the garden/parking area. According to the defendants, it is not admitted that the plaintiff is 15 O.S.2036/2007 working outside the Bangalore and hence, the plaintiff is represented by his wife Smt.Sarojini Lobo as GPA holder. Very strangely in para-10 of the written statement, defendants 1 and 2 stated that it is true that plaintiff is the absolute owner of the plaint 'A' schedule property. The boundary described on the southern side of 'A' schedule property to the plaint as road is not admitted. There exists no road between 'A' schedule property and 'B' schedule property(defendants 1 and 2 property) as described in the plaint except for the 'A' schedule property being a corner site to the extent of only 12 feet on the southern side as evident from the plan produced by defendants 1 and 2. It is also further denied the description of the 'B' schedule property in as much as 'B' schedule property described as site No.54/1 bounded on the East by private property, West by road, North by flat No.53 and South by flat No.54 belongs to defendants 1 and 2 and same is the absolute property of defendants 1 and 2 etc. 16 O.S.2036/2007
f) According to the defendants, the sale deed of the plaintiff in respect of the 'A' schedule property dated 22.6.2004 is not disputed. It is true that the plaintiff has put up construction and paying tax. He also stated that the 1st defendant himself has put up the house of the plaintiff and plaintiff suppressed the said fact in the plaint.
g) Defendants 1 and 2 also stated that it is true that the layout has been formed after securing the conversion order from the competent authority approved by Horamavu Grama Panchayath on 21.4.2003, but not on 2.4.2003 as described in the plaint. Copy of the layout plan produced by the plaintiff as annexure-G is concocted and fabricated. In order to disprove the said fact, defendants also produced the original layout plan, which clearly establishes that there is no road between site No.53 and site No.54 and 'B' schedule property described is non-existent. So in view of the said discrepancy in the southern boundary to the 'A' schedule property, it 17 O.S.2036/2007 is for the plaintiff to approach his vendor- the 3rd defendant to secure necessary rectification to the said sale deed. Defendants 1 and 2 have no objection to call for the layout plan from Horamavu Grama Panchayath. They also stated that the vendor of the plaintiff and vendor of the defendants 1 and 2 is one and same person i.e. the 3rd defendant.
h) Defendants 1 and 2 go to the extent of saying that there is typographical error in describing the boundaries on the North side of the property bearing site No.54 conveyed in favour of defendants 1 and 2 so also while mentioning the southern boundary in respect of the property conveyed in favour of the plaintiff, which is not intentional, but bonafide mistake. The layout plan produced by the plaintiff clearly demonstrates that there exists flat No.54/1 in between flat No.53 and 54, which came to be conveyed by the same owner in favour of defendants 1 and 2 for sale consideration. As such the plaintiff cannot contend that flat No.54/1 as a road. 18 O.S.2036/2007 Defendants 1 and 2 would take appropriate steps to have the sale deed rectified etc. The plaintiff has hurriedly approached this Court to harass the defendants 1 and 2. As such the boundary shown in the sale deed of the plaintiff on the southern side and boundary shown in the sale deed of the defendant on the northern side could not be of any help to decide the issue in this case.
i) Defendants 1 and 2 also further contended that it is true that they have constructed houses over site No.54, but denied the fact that the defendants 1 and 2 started encroaching 30 feet road as same does not arise since there exists no road as alleged by the plaintiff. Defendants 1 and 2 being the lawful owners are entitled to possess and enjoy the property No.54/1. It is also denied that the defendants 1 and 2 have blocked the road by putting temporary wall etc. The alleged complaint said to have been filed is also false etc. The suit is not properly valued and the Court fee paid is insufficient. They also resisted the 19 O.S.2036/2007 suit on several other grounds and pray for dismissal of the suit with costs.
5. Based on the above pleadings of the parties, my learned Predecessor has framed the following issues:
1. Whether plaintiff proves that there exist a road on the southern side of 'A' schedule property that is between 'A' schedule property and 'B' schedule property?
2. Whether the plaintiff proves that the defendants have encroached the door and blocked the plaintiff's southern entrance?
3. Whether the plaintiff proves that he has easementary right of light, air and usage of southern side 30 feet road?
4. Whether the plaintiff is entitled for mandatory injunction for removal of portion of 30 feet in schedule 'B' property?
5. Whether the plaintiff is entitled for permanent injunction as sought?
6. What decree or order?
6. Issue No.1 is reframed as follows:
1. Whether the plaintiff proves that there exists a road on the southern 20 O.S.2036/2007 side of the plaint 'A' schedule property, which is morefully shown in the 'B' schedule?
7. In support of the case of the plaintiff, he himself is examined as PW.1 and got marked Exs.P.1 to P.20. The wife of the plaintiff is also examined as PW.2 and closed his evidence. The 1st defendant himself is examined as DW.1 and got marked Ex.D.1 to D.41. The 3rd defendant so also the vendor of the plaintiff and defendants 1 and 2 is examined as a witness for defendants 1 and 2 as DW.2 and no document is got marked through DW.2.
8. Record also discloses that on I.A.3 filed Under Order 39 Rule 2-A CPC, the plaintiff is also examined in support of I.A.3 and also examined his witnesses and closed the evidence of the plaintiff. Per contra the 1st defendant is also examined on I.A.3 filed by the plaintiff Under Order 39 Rule 2-A CPC.
9. Heard the arguments of both sides.
21 O.S.2036/2007
10. Learned counsel for the plaintiff filed written arguments and relied upon the following decisions:
1. AIR 2009 GUJ 178 Patni Dhanjibhai Saybabhai v/s Patni Mohanbhai Saybabhai
2. AIR 2008 NOC 1228 CAL Heinz India Private Limited & Anither Vs. Glazo Smithkline Consumer Healthcare Limited & others.
Decision on Main Suit
1. AIR 2011 SC 952 Hari Ram v/s Jyothi Prasad & another.
11. On the other hand, learned counsel for the defendants 1 and 2 also relied upon the following decisions:
1. AIR 1976 JUMMU & KASHMIR 23 Mistry Ali Mohd. Abdullah & others Vs. Khawaja Abdul Qadus and others.
2. 1996(2) K L J 605 Thulahalli Kotrabasappa Vs. Pujari Rangappa.
3. ILR 2005 KAR 1188 R.Paramasivan and Another Vs. Smt.T.Anasuya.
4. Malkajappa Chanvirappa Hulur Vs. Rachappa Panchappa Guledgud On 22 O.S.2036/2007
12.02.1942, which is equivalent to (1942) 44 Bom.L.R 673
5. RFA No.1294/2002(DEC) Smt.Shobha J.Madan Vs. Shivaji R.Mote.
12. Perused the written arguments of the plaintiff and also perused the decisions relied upon by the learned counsels for the plaintiff and defendants 1 and 2 and also perused the records.
13. My findings on the above issues are:
Issue No.1: Affirmative.
Issue No.2: Affirmative.
Issue No.3: Negative.
Issue No.4: Affirmative.
Issue No.5: Affirmative.
Issue No.6: As per the final order for the following;
REASONS
14. Issue No.1 to 5: Since these five issues are interlinked with each other and require common discussion of facts, so they are taken together for common discussion to avoid repetition of facts. 23 O.S.2036/2007
15. When the plaintiff pleads that there exists a road on the southern side of the 'A' schedule property, which is morefully shown in the plaint 'B' schedule and when the plaintiff pleads that the defendants encroached the road and blocked the plaintiff's southern entrance, the burden is on the plaintiff to prove issue Nos.1 and 2.
16. Similarly when the plaintiff pleads that he has got easementary right of light and air and to use the 30 feet road on the southern side of the plaintiff's property, the burden is also on the plaintiff to prove issue No.3 also.
17. In addition to that when the plaintiff sought the relief of mandatory injunction for removal of obstructed area i.e. portion of 30 feet road in the 'B' schedule property, he has to establish that he is entitled for the relief of mandatory injunction.
18. On careful perusal of the plaint, the plaintiff has sought for three reliefs in the prayer column. The 24 O.S.2036/2007 first relief is with regard to decree for declaration of easementary right of the plaintiff such as light and air, usage of entrance towards the southern side of 30 feet road of the plaint 'A' schedule property; the second relief is with regard to in consequence of the same for mandatory injunction directing the defendants 1 and 2 to remove the encroached 'B' schedule property, which is a portion of 30 feet road towards the southern side of the plaint 'A' schedule property and the third relief is with regard to permanent injunction restraining the defendants or anybody claiming under them from using the 'B' schedule property as their private road etc.
19. With regard to the relief No.1 is concerned, the plaintiff has to establish before the Court that he has got the easementary right of getting air and light to the plaint 'A' schedule property from and out of the plaint 'B' schedule property. To get the declaration of easementary right, the plaintiff has to prove the ingredients of Section 15 and 28 of Easements Act. 25 O.S.2036/2007 He must also establish the fact that he has enjoying the right of easement by enjoying the air and light for the past 20 years. The evidence on record also discloses that the plaintiff so also defendants 1 and 2 purchased their respective sites more or less in the same period and the time gap between the sale deed of the plaintiff and sale deed of the defendants 1 and 2 is hardly nine days. The sale deed of the plaintiff in respect of site No.53 is dated 22.6.2004 as per Ex.P.13 and sale deed of the defendants 1 and 2 with regard to site No.54 is dated 30.6.2004 as per Ex.P.12.
20. In support of the case of the plaintiff, he relied upon Ex.P.1 to P.20.
21. Ex.P.1 is the complaint filed by the wife of the plaintiff with the Executive Officer, East Taluk Panchayath, Bangalore on 29.4.2006 alleging the encroachment made by the 1st defendant and the alleged encroachment with regard to the road situated on the southern side of plaintiff's site No.53 and she 26 O.S.2036/2007 also stated that the 1st defendant occupied the public road and the 1st defendant using the public road as his private property and also installed a wall at one end and also installed a gate at the end of the private road. She further stated with regard to the fact that though she has approached the panchayath, but the panchayath authorities have not taken any action. She also stated that when the wife of the plaintiff enquired the 1st defendant in this regard, the 1st defendant abused her and accordingly she filed complaint and FIR came to be registered by the local police.
22. It is worth to mention at this stage itself that along with the complaint, the wife of the plaintiff also enclosed the several documents such as copy of the sale deed pertaining to site No.53 i.e. plaintiff's sale deed; copy of the sale deed in respect of site No.54, which belongs to defendants 1 and 2; conversion order passed by the Special Deputy Commissioner as well as approved plan. So from this, it is crystal clear that the wife of the plaintiff lodged complaint on 27 O.S.2036/2007 29.6.2006 along with the approved plan approved by the panchayath and this document has been produced by the plaintiff and marked in this case as per Ex.P.19.
23. Ex.P.2 to P.11 are all photographs showing the location of the site of the plaintiff and defendants 1 and 2, so also putting up of compound wall and a gate across the road by the defendants 1 and 2. With regard to the said photographs, the plaintiff has specifically stated that Ex.P.3 was taken after 29.4.2007 pertains to the southern side of the gate; Ex.P.4 photo was taken after 29.4.2007. Ex.P.5 pertains to the photo taken before 29.4.2007 i.e. main gate out side. Ex.P.6 is the photograph taken pertaining to the main gate after 29.4.2007. Ex.P.7 is the photograph pertaining to the house of defendants 1 and 2 taken after 29.4.2007. Ex.P.8 is the photo pertaining to the garage of the house of defendants 1 and 2 taken before 29.4.2007. Ex.P.9 is also photograph taken before 29.4.2007. Ex.P.10 is also 28 O.S.2036/2007 the photograph pertaining to the house of defendants 1 and 2 taken after 29.4.2007.
24. Ex.P.12 is the certified copy of the sale deed dated 30.6.2004 pertaining to defendants 1 and 2 executed by the 3rd defendant as GPA holder of one Dr.P.Krishna Murthy (brother of power of attorney holder) in favour of defendants 1 and 2. This sale deed Ex.P.12 discloses that site No.54 was sold by the 3rd defendant as GPA holder of his brother in favor of defendants 1 and 2 carved out of Sy.No.131/2 and conversion order number is also shown as BDS/ALN/ SR/E/71/2002-03 dated 20.11.2002. The boundary shown in this sale deed Ex.P.12 is East by: Private property, West by: Site No.55, North by: Road and South by: Private property.
From this, it is crystal clear that Northern boundary is specifically shown as road and the boundary shown in the schedule of Ex.P.12 clearly tallies with the certified copy of the plan produced by the plaintiff as 29 O.S.2036/2007 per Ex.P.19. Ex.P.12 also reveals that possession of the property was delivered. In this Ex.P.12, at page- 4, there is also specific recital stating that the vendor also agreed to execute, cause to be done any other document if necessary in future as and when called by the purchasers. The vendor also agreed that the vendor has delivered the original/copies of the documents pertaining to the schedule property to the purchasers.
25. It is worth to mention that the sale deed of the defendants 1 and 2 is subsequent when compared to the sale deed of the plaintiff Ex.P.13. If really there was any mistake crept in while mentioning the boundary in the sale deed of the plaintiff, then there was no impediment for the 3rd defendant being the vendor to mention the same in the sale deed of the defendants 1 and 2, but he has not mentioned anything about the wrong boundary mentioned in the sale deed of the plaintiff as per Ex.P.13. Even though the 3rd defendant being the vendor agreed to execute 30 O.S.2036/2007 any other documents, which are necessary in future, the defendants 1 and 2 never made any attempt to rectify the mistake that was crept in if any while mentioning the boundary in the sale deed of defendants 1 and 2 as per Ex.P.12.
26. So, from this it is crystal clear that the boundary shown in the sale deed of the plaintiff as per Ex.P.13 so also the boundary mentioned in the schedule of the sale deed of defendants 1 and 2 as per Ex.P.12 is correct, which clearly tallies with the location of the sites and boundary shown in the approved plan as per Ex.P.19 produced by the plaintiff in this case. The sale deed Ex.P.12 is dated 30.6.2004, the layout plan Ex.P.19 produced by the plaintiff is dated 21.4.2003. The boundary mentioned in the schedule of Ex.P.12 clearly tallies with the location of sites and boundary shown in the approved plan Ex.P.19.
27. Ex.P.13 is the registered sale deed dated 22.6.2004 executed by the very same 3rd defendant being GPA holder of his brother in favour of the 31 O.S.2036/2007 plaintiff, which is in respect of site No.53, khatha No.356, which is also formed in the same Sy.No.131/2 measuring East to West 48+49/2 and North to South 61+62/2 in all measuring 2982.75 square feet. The boundary shown in this sale deed Ex.P.13 is-
East by: Private property,
West by: Road,
North by: Site No.52 and
South by: Road (now claimed by
defendants 1 and 2 as site
No54/1).
28. The boundary shown in the schedule of Ex.P.13 also tallies with the location and boundary shown in the approved plan Ex.P.19. The plaintiff has also put in possession of site No.53 on the same day acting in pursuance of Ex.P.13. The time gap between the sale deed of the plaintiff in respect of site No.53 and the sale deed of defendants 1 and 2 in respect of site No.54 is hardly nine days.
29. Ex.P.14 is the licence issued by Horamavu Grama Panchayath on 9.9.2004 permitting the 32 O.S.2036/2007 plaintiff to put up construction in site No.53/khatha No.356 and in this document also, the boundaries are shown as-
East by: Private property,
West by: Road,
North by: site No.52 and
South by: Road
which is the very same boundary shown in the sale deed of the plaintiff Ex.P.13 so also the boundary shown in the approved plan issued by Horamavu Grama Panchayath as per Ex.P.19. It is also worth to mention that Ex.P.14 licence was issued by Horamavu Grama Panchayath. Ex.P.19 plan is also approved by the very same Horamavu Grama Panchayath.
30. As discussed earlier, the boundaries shown in Ex.P.13, Ex.P.14 and Ex.P.19 are one and the same in respect of site purchased by the plaintiff bearing No.53. Ex.P.14 licence was issued to the plaintiff by Horamavu Grama Panchayath subsequent to the sale deed of defendants 1 and 2, which Ex.P.12 dated 30.6.2004. If really site No.54/1 was in existence as 33 O.S.2036/2007 on 9.9.2004, then there was no impediment for Horamavu Grama Panchayath to mention the same in Ex.P.14 on the southern side by showing it as site No.54/1 instead of showing it as road. So, in view of the same it cannot be said that Ex.P.19 plan was created and concocted by the plaintiff. At the same time, it cannot also be said that Ex.D.5 plan i.e. produced by defendants 1 and 2 is a genuine document. In my opinion, Ex.D.5 plan came into existence just to facilitate the 1st and 2nd defendants and came into existence in collusion with the panchayath authorities, 3rd defendant and defendants 1 and 2. It is also worth to mention that Ex.P.14 licence was not questioned by defendants 1 and 2 or the 3rd defendant before the competent authorities stating that the boundary mentioned in Ex.P.14 is not correct.
31. Ex.P.15 is the certified copy of the assessment list extract for the assessment year 2004-05, which shows that the plaintiff is shown to be the anubhavadar of property i.e. vacant site No.53 under 34 O.S.2036/2007 Sl.No.356 measuring 48+49/2X61+62/2. The particulars of the property shown in Ex.P.15 tallies with the particulars shown in the licence Ex.P.14 and plan Ex.P.19.
32. Ex.P.16 is the certified copy of the demand register extract for the assessment year 2004-05, which also reveals that the plaintiff is the owner/Anubhavadar of site No.53. Ex.P.17 is the tax paid receipt paid by the plaintiff in respect of site No.53, khatha No.356 for the assessment year 2004-
05. Ex.P.18 is the Encumbrance Certificate in respect of plaintiff's site No.53 from 1.6.1989 to 26.8.2004, which depicts the sale transaction as per Ex.P.13.
33. Ex.P.19 is an important document, which the certified copy of the approved plan issued from Horamavu Grama Panchayath on 21.4.2003 and the plan has been approved as per the conversion order passed by the deputy commissioner, Bangalore City in No. BDS/ALN/SR/East/71/2003-04 dated 1.4.2003. The location of sites so also the boundaries given in 35 O.S.2036/2007 the approved plan Ex.P.19 tallies with the particulars of the property shown in the sale deed of defendants 1 and 2 as per Ex.P.12 so also the sale deed of the plaintiff as per Ex.P.13.
34. Ex.P.20 is the handmade sketch furnished by the plaintiff while filing the suit, which shows the location of site No.53 and site No.54 and Ex.P.20 also shows the existence of 30 feet road in between site No.53 and 54 and in this Ex.P.20, the location of site No.53 and site No.54 and location of 30 feet road clearly tallies with the boundaries shown in the sale deed of defendants 1 and 2 as per Ex.P.12 so also sale deed of the plaintiff as per Ex.P.13.
35. Defendants 1 and 2 on the other hand, relied upon Ex.D.1 to D.41.
36. Ex.D.1 to D.3 are the photographs showing the newly constructed house of defendants 1 and 2 and putting up of the main gate, which appears to be across the 30 feet road as claimed by the plaintiff in the 'B' schedule.
36 O.S.2036/2007
37. Ex.D.4 is the registered sale deed dated 11.11.2005 executed by the 3rd defendant as GPA holder of his brother Krishnamurthy in favour of defendants 1 and 2. This sale deed is in respect of the alleged site No.54/1 carved out of Sy.No.131/2, wherein the very same conversion order number is mentioned as shown in Ex.P.12 and Ex.P.13 and Ex.P.19. In this sale deed Ex.D.4, a strange recital is found stating that the khatha in respect of the property that was sold in favour of defendants 1 and 2 was in the name of the vendor the 3rd defendant and accordingly the 3rd defendant is shown to have paid tax. But said khatha certificate nor the tax paid receipt said to have been paid by the 3rd defendant in respect of the alleged site No.54/1 has not been produced and this vital document has been withheld by the 3rd defendant, who is examined as DW.2 in this case, so also by defendants 1 and 2. Possession of the property is shown to have delivered under Ex.D.4.
38. It is worth to mention that at this stage itself that the sale deed of the plaintiff Ex.P.13 is dated 37 O.S.2036/2007 22.6.2004. The sale deed of the defendants 1 and 2 in respect of site No.54 as per Ex.P.12 is dated 30.6.2004. Ex.P.12 and P.13 came into existence at an undisputed point of time, that too at the time when there was no strained relationship between plaintiff and defendants 1 and 2, so also the 3rd defendant. If really there was any mistake in the boundaries in the sale deed of the plaintiff as per Ex.P.13, there was no impediment for the 3rd defendant to issue legal notice to the plaintiff calling upon the plaintiff to get the mistake rectified while mentioning the boundaries of the sale deed Ex.P.13. This is also in view of the fact that Ex.D.4 came into existence much subsequent to Ex.P.12 and P.13, which is dated 11.11.2005. Even in Ex.D.4 also, there is no whisper anything about the wrong boundaries mentioned in the sale deed of the plaintiff as per Ex.P.13 nor with regard to any wrong boundaries mentioned in the sale deed of the defendants 1 and 2 as per Ex.P.12. This is also in view of the fact that the very same purchasers under 38 O.S.2036/2007 Ex.D.4 also purchased site No.54 from the very same vendor under Ex.P.12.
39. It is worth to mention at this stage itself that the 3rd defendant failed to appear before the Court at the first instance and he kept quiet without participating in the proceedings and it is only after execution of the sale deed Ex.D.4, he appeared as witness for defendants 1 and 2, just to support the case of the defendants 1 and 2.
40. Ex.D.5 is the alleged approved plan said to have been approved by Horamavu Grama Panchayath on 21.4.2003 and the very same conversion order numbers are mentioned in Ex.D.5 also. Ex.P.19 is the approved plan produced by the plaintiff, wherein there is no reference with regard to the existence of site No.54/1. Ex.D.5 is also the very same approved plan approved by Horamavu Grama Panchayath, wherein for the first time existence of site No.54/1 is shown. This is also in view of the fact that if really Ex.D.5 plan was approved by Horamavu Grama 39 O.S.2036/2007 Panchayath on 21.4.2003, then there was no impediment for the said panchayath authorities to mention the same either in the sale deed of the plaintiff as per Ex.P.13 i.e. on the southern side, so also in the sale deed of defendants 1 and 2 as per Ex.P.12 on the northern side. From this, it is crystal clear that Ex.D.5 cannot be believed and accepted in view of the recital found in the registered sale deeds Ex.P.12 and P.13.
41. Ex.D.6 and D.7 both are the tax paid receipts paid by the defendants 1 and 2 in respect of site No.54/1 on 18.11.2005, 20.11.2006 for the assessment year 2005-06, 2006-07. Khatha number is shown as 357/A.
42. Ex.D.8 to D.11 are all photographs showing the newly constructed house of defendants 1 and 2, which also depicts the very same location as per the photographs Ex.D.1 and D.2. Ex.D.12 is the negative of the said photographs.
40 O.S.2036/2007
43. Ex.D.13 is the certified copy of the assessment for the assessment year 2005-06, which shows that defendants 1 and 2 are shown to be the Anubhavadar of vacant site No.54/1 measuring 47.5X30 feet. Ex.D.14 is the certified copy of the demand register extract for the assessment year 2005-06, which also reveals that defendants 1 and 2 are shown to be the owners/anubhavadars of site No.54/1, khatha No.357/A.
44. Ex.D.15 is the certified copy of the charge sheet in C.C No.24423/2006 wherein criminal case was registered against defendants 1 and 2 on the basis of complaint filed by the wife of the plaintiff and this criminal case is also in respect of the road in question as claimed by the plaintiff and alleged site No.54/1 as claimed by defendants 1 and 2.
45. Ex.D.16 is the certified copy of the deposition of the wife of plaintiff; Ex.D.17 is the certified copy of the deposition of the plaintiff; Ex.D.18 is the certified copy of the deposition of one Anbu; Ex.D.19 is the 41 O.S.2036/2007 certified copy of the deposition of one Smt. Sudha and Ex.D.20 is the certified copy of the deposition of the concerned P.S.I, who registered the case in C.C No.24423/2006 wherein the accused No.1 and 2 therein, who are the defendants 1 and 2 in this case, have been acquitted from the alleged charges punishable U/Sec.504, 268 r/w Sec.290 and 34 IPC.
46. Ex.D.22 and D.23 are the photographs, which depicts the existing state of affairs pertaining to the house of defendants 1 and 2. Ex.D.24 is the invitation card pertaining to the house warming ceremony of the defendants 1 and 2 held on 16.10.2005 which appears to be in respect of the house constructed in House No.54.
47. Ex.D.25 is the Khatha certificate pertaining to the Khatha No.357/A and Khatha stands in the name of defendants 1 and 2 which is dated 11.11.2013. Ex.D.26 is the assessment register extract issued from BBMP for the assessment year 2013-14, which also reveals that defendants 1 and 2 are shown to be 42 O.S.2036/2007 the owners of site No.54/1, khatha No.357/A measuring 47.5X30 feet. Ex.D.25 and D.26 both came in to existence subsequent to filing of the suit.
48. Ex.D.27 to D.32 are all tax paid receipts paid by defendants 1 and 2 in respect of site No.54/1, khatha No.357/A which are dated 21.6.2007, 16.3.2009, 27.7.2009, 21.7.2010, 12.6.2013, 12.6.2013 for the assessment year 2005-06 to 2013-14. Ex.D.33 and D.36 both are nil encumbrance certificates in respect of alleged site No.54/1 carved out of Sy.No.131/2 for the period from 1.6.1989 to 31.3.2005, 5.11.2008 to 10.6.2013, which shows that the alleged site No.54/1 is not encumbered in favour of any person. Ex.D.34 and D.35 both are certified copies of Encumbrance Certificates also in respect of alleged site No.54/1 from 1.4.2005 to 7.3.2006, 1.4.2004 to 5.11.2008 which depicts the sale transaction between 1st and 2nd defendants and 3rd defendant interse as per Ex.D.4.
49. Ex.D.37 is the khatha certificate in respect of the alleged site No.54/1, khatha No.357/A, which 43 O.S.2036/2007 shows that the defendants 1 and 2 are shown to be the kathedars of the said site and this document was issued on 19.7.2014. Ex.D.38 is also the certified copy of the assessment list extract issued from BBMP for the assessment year 2014-15, which also reveals that defendants 1 and 2 are shown to be the owners of the alleged site No.54/1, khatha No.357/A measuring 47.5X30 feet.
50. Ex.D.39 is the receipt for having paid amount towards obtaining khatha certificate. Ex.D.40 is the endorsement issued from BBMP on 20.11.2014 stating that the alleged site No.54/1 measuring 47.5X30 feet comes under BBMP limits. Ex.D.41 is the copy of the application given by the plaintiff to BBMP authorities seeking issue of layout plan in respect of the alleged site No.54/1.
51. It is worth to mention that the document produced by defendants 1 and 2 as per Ex.D.5 is the alleged approved layout plan approved by Horamavu Grama Panchayath on 21.4.2013. Ex.D.41 is the 44 O.S.2036/2007 letter written by the 1st defendant on 14.11.2014, which is much subsequent to filing of the suit. Defendants 1 and 2 have not produced any layout plan that was issued in pursuance of the request made by the 1st defendant as per Ex.D.41. Ex.D.37 to D.41 came into existence only subsequent to filing of the suit.
52. The plaintiff, who is examined in this case as PW.1, has reiterated the plaint averments on par with the plaint allegations. On careful perusal of chief examination of affidavit of the plaintiff, there is no dispute with regard to purchase of plaint 'A' schedule property by the plaintiff i.e. site No.53 and there is no dispute that the defendants 1 and 2 also purchased site No.54. Now according to the plaintiff, 'B' schedule property is a road, but according to the defendants 1 and 2, 'B' schedule property is not a road, it is one of the sites formed in the same layout having site No.54/1.
45 O.S.2036/2007
53. However PW.1 in the cross-examination has stated that there was layout plan in respect of site shown in Ex.P.13, but he do not know whether the plan was registered or not. A strange suggestion is made in the cross-examination of PW.1 by suggesting that towards southern side of the plaint 'A' schedule property, there should have been a mention with regard to site No.54/1, but the same was wrongly shown as road on the southern side and this suggestion is specifically denied by PW.1 in his cross- examination. It appears that there is no such specific defence by defendants 1 and 2 in their written statement in this regard.
54. It is also worth to mention at this stage itself that the 3rd defendant appeared in this case as a witness for defendants 1 and 2 and though in his evidence he has stated that he has not received the suit summons and as such he was unable to appear before the Court, but even after he appeared before the Court as witness on behalf of defendants 1 and 2, 46 O.S.2036/2007 he never made any efforts to appear in this case by filing vakalath and written statement. This clearly indicates the conduct of the 3rd defendant in this case and he is simply watching the proceedings even though he is aware of the pendency of this case.
55. In the cross-examination of PW.1, Ex.D.5 was confronted. By confronting Ex.D.5, it is suggested in the cross-examination of PW.1 that the said layout was formed by the 3rd defendant and the same has been admitted by PW.1 in his cross-examination, but he goes to the extent of saying that Ex.D.5 is a created document. He also denied the suggestion that there was no road to his site No.53 on the western and southern side. He also denied the suggestion that there was no road on the southern side of the plaint 'A' schedule property. PW.1 in his cross-examination specifically denied the suggestion that the southern road is site bearing No.54/1 belongs to defendants 1 and 2. One more strange suggestion was made in the cross-examination of PW.1 by 47 O.S.2036/2007 suggesting that wrong boundary has been mentioned towards the northern side of site No.54 belongs to defendants 1 and 2 and this suggestion is also denied by PW.1 in his cross-examination. He also denied the suggestion that defendants 1 and 2 have not encroached any portion of southern side of the road. A specific suggestion is made in the cross- examination of PW.1 by suggesting that Ex.P.19 layout plan has been approved by Horamavu Grama Panchayath and this suggestion is admitted by PW.1 in his cross-examination. This suggestion in my opinion helped the plaintiff in a way to establish before the Court that Ex.P.19 is a approved plan and the same is not a created document as suggested in the cross-examination of PW.1.
56. The 1st defendant himself is examined DW.1, wherein he has reiterated the written statement averments and he relied upon the documentary evidence Ex.D.1 to D.41 in support of his case. A specific suggestion is made in the cross-examination 48 O.S.2036/2007 of DW.1 by suggesting that he affixed his signatures as a witness to the sale deed of the plaintiff as per Ex.P.13 and this suggestion is admitted by DW.1 in his cross-examination and accordingly the signatures of the 1st defendant in the sale deed of Ex.P.13 is also marked as Ex.P.13(a) and P.13(b). In view of this admission, in my opinion, now defendants 1 and 2 cannot contend that a wrong boundary has been mentioned on the southern side of site No.53, which is morefully shown in the plaint 'A' schedule.
57. During the course of cross-examination of DW.1, boundary mentioned in the schedule of Ex.P.13 was read over and on enquiring DW.1 as to whether the boundary mentioned in the schedule of Ex.P.13 was correct or not to which he has stated that he do not know, but he has not specifically denied nor disputed the boundary mentioned in the schedule of Ex.P.13. Similar suggestion was made with regard to the boundary mentioned in the schedule of Ex.P.12 i.e. sale deed of the defendants 1 and 2 themselves and 49 O.S.2036/2007 to this suggestion also, he has pleaded his ignorance. But DW.1 has not denied the boundaries mentioned in his own sale deed Ex.P.12. If really the boundary mentioned in the sale deed of defendants 1 and 2 is not correct, there was no impediment for defendants 1 and 2 to get the boundary rectified through the 3rd defendant, but even after several years, defendants 1 and 2 have not made any efforts to get rectified the wrong boundary if any mentioned in the sale deed of defendants 1 and 2 as per Ex.P.12.
58. So from this, it is crystal clear that defendants 1 and 2 so also the witness appeared for defendants 1 and 2 i.e. 3rd defendant have not approached the Court with clean hands and filed written statement by suppressing all the material facts and deposed falsehood by suppressing all the material facts.
59. Though DW.1 in his cross-examination admitted that he came to know about the wrong boundaries mentioned in Ex.P.12 in the year 2005, but inspite of that he also admitted that he has not made any 50 O.S.2036/2007 efforts to get the wrong boundary rectified from the original owner i.e. 3rd defendant. A suggestion is also made in the cross-examination of DW.1 by suggesting that he has mentioned in his written statement at para-15 that there was 12 feet wide road on the southern side of plaintiff's site to which DW.1 has pleaded his ignorance. Strangely he has admitted in his cross-examination that the road shown in Ex.D.5 measuring 30 feet on North to South direction.
60. The 3rd defendant is also examined as witness for defendants 1 and 2, wherein he has been examined to show before the Court as if the boundary mentioned in the sale deed of the plaintiff and the sale deed of defendants 1 and 2 is not correct and further to establish before the Court to show that the alleged site No.54/1 was sold in favour of defendants 1 and 2 by 3rd defendant as GPA holder of his brother. He also stated in his chief examination that while formation of the layout, he has also obtained approved layout plan from the competent authorities, 51 O.S.2036/2007 but he goes to the extent of identifying the approved layout plan as per Ex.D.5 and also stated that except Ex.D.5, he has not formed any other layout. However DW.2 in his cross-examination admitted his address shown in the cause title and also admitted that he has formed in all 56 sites in the said layout. In the cross- examination of DW.2 the boundary that was mentioned in respect of site No.53 was read over and also asked the witness as to whether this boundary is correct or not, but he goes to the extent of saying that he can only say the boundary only after verifying the document, but again stated that towards South of site No.53, there exists site No.54/1. He goes to the extent of saying that he has not executed sale deed Ex.P.13 in favour of the plaintiff. He also stated in his cross-examination that he has given layout plan to some of the purchasers.
61. DW.2 in his cross-examination goes to the extent of saying that he has noticed the wrong boundary mentioned in the sale deeds only after 52 O.S.2036/2007 verifying the sale deeds. Though in his cross- examination he has stated that the boundaries mentioned in the sale deed Ex.P.12 and Ex.P.13 are not correct, but he never issued any legal notice either to the plaintiff or to the defendants 1 and 2 calling upon them to rectify the mistake that was crept in while mentioning the wrong boundaries in the sale deeds of Ex.P.12 and P.13 before he executing sale deed in favour of defendants 1 and 2 as per Ex.D.4. He goes to the extent of saying that he has informed the plaintiff about the wrong boundary mentioned by phone, but he has not informed the plaintiff in writing in this regard. He also admitted that he do not know to which phone number he has informed the plaintiff and defendants 1 and 2 about mentioning of wrong boundaries in the sale deeds.
62. The way in which DW.2 deposed before the Court goes to show that he is not a reliable witness and he has been examined just to support the case of defendants 1 and 2 that too the 3rd defendant after 53 O.S.2036/2007 selling the road portion to defendants 1 and 2 by showing it as site No.54/1. In view of the recital found in the registered document, the evidence of DW.2 cannot be believed and accepted. This is also in view of the fact that the recital of registered document will prevail over the oral evidence of PW.1 in view of the provisions of Section 91 of the Evidence Act.
63. With regard to the application filed by the plaintiff as per I.A.3, Under Order 39 Rule 2-A CPC is concerned, the plaintiff is examined as PW.1, wherein he has reiterated the affidavit averments filed in support of I.A.3 as his chief examination. However in his cross-examination PW.1 has admitted that the defendants 1 and 2 already fixed a gate towards southern side of plaint 'A' schedule property and he do not remember as to when the gate was fixed. He also admitted that the photographs that were taken, were in digital camera, but the date on which the said photographs are taken is not depicted in the 54 O.S.2036/2007 photographs that are produced. He also admitted that this case was filed in the month of March 2007. He further stated that there is no negative for the photographs that are produced. He further admitted that he has not produced any documents to show that on the same day, the defendants received the order of injunction passed by this Court.
64. It is also worth to mention that PW.1 in his cross-examination also admitted that the defendants 1 and 2 also filed a suit against him for recovery of money, which came to be decreed and as against the said Judgment and decree, he preferred appeal. Specifically it is the case of the plaintiff that in the absence of the plaintiff and his wife on 30.4.2007, 1.5.2007 and on 2.5.2007, defendants 1 and 2 have put up construction i.e. compound wall, but in the cross-examination he admitted that he has not produced any documents to show that he himself and his wife were not present on the said dates. He also specifically admitted that as per the photograph that 55 O.S.2036/2007 was confronted to him as per Ex.O.1, compound wall was demolished. He also specifically admitted that on 10.10.2005, he broken the compound wall to provide a gate, but also admitted that he was not sure about the said date.
65. The wife of the plaintiff is also examined as PW.2, wherein PW.2 in her cross-examination admitted that she has no receipt with her for having taken photographs as per Ex.P.3 to P.11. She also admitted that she do not know in which year, the 1st defendant has conducted house warming ceremony and also admitted that the date was fixed prior to the house warming ceremony. It is worth to mention at this stage itself that as per the Invitation card i.e. produced by defendants 1 and 2 as per Ex.D.24, their house warming ceremony was conducted on 16.10.2005 and the application filed by the plaintiff as per I.A.3 was on 28.5.2007.
66. The 1st defendant is also examined as DW.1 on the said application, wherein he has reiterated the 56 O.S.2036/2007 written statement averments and objection averments filed to the said application. However DW.1 in his cross-examination admitted that there exists a gate in between site No.53 and site No.54, but he also stated that the said gate was fixed about 4½ years back. He also specifically admitted that he has not undertaken any construction in site No.54/1. He denied the suggestion that he had made improvement of the property as shown in Ex.P.10 after passing injunction order.
67. In this regard, it is worth to relay upon Ex.D.15, which is the certified copy of the charge sheet and this criminal case was registered based on the complaint field by the wife of the plaintiff in C.C.24423/2006 itself stating that defendants 1 and 2 in this case have encroached the road portion of the property. In addition to all these, this Court by its order dated 12.3.2007 passed the interim order restraining the defendants 1 and 2 from putting up further construction in the disputed area. The 57 O.S.2036/2007 evidence available on record also discloses that a compound wall appears to have been put up by defendants 1 and 2 in the disputed site i.e. plaint 'B' schedule property.
68. Also perused the decisions relied upon by the learned counsel for the plaintiff in support of I.A.3 filed Under Order 39 Rule 2-A CPC. The plaintiff himself is failed to prove the disobedience if any conducted by defendants 1 and 2 in this case. As such in my humble view the said decisions relied upon by the learned counsel for the plaintiff will not help the plaintiff in any way to take action against defendants 1 and 2 as contemplated Under Order 39 Rule 2-A of CPC.
69. On careful perusal of the material available on record, there is no dispute with regard to the fact that the plaintiff is the owner of site No.53; defendants 1 and 2 are the owners of site No.54. The real dispute between the plaintiff and defendants 1 and 2 is only with regard to the road which is in existence in 58 O.S.2036/2007 between site No.53 and site No.54 as shown in the plan Ex.P.19. The plaintiff claims that there exists 30 feet road on the southern side of the plaint 'A' schedule property, which is morefully shown in the plaint 'B' schedule. However defendants 1 and 2 claimed the alleged portion of the road as site No.54/1.
70. From the material available on record, it is crystal clear that the 3rd defendant is none other than the vendor of defendants 1 and 2 so also the plaintiff, who intelligently kept quiet without participating in the proceedings. Though he has stated that summons has not been served on him, but even after he appeared as a witness on behalf of defendants 1 and 2 and even after he aware of the fact that a case was filed against him also, he never made any attempt to file vakalath and written statement on his behalf and on the other hand, he appeared as witness to support the defence of defendants 1 and 2. The 3rd defendant has no subsisting right, title, interest of possession over any of the site i.e. site No.53, site 59 O.S.2036/2007 No.54 and also in respect of the disputed area. The 3rd defendant virtually a proforma party in this case.
71. The real truth has come out in the written statement filed by defendants 1 and 2 at para-15, wherein the defendants 1 and 2 have specifically stated that the plaintiff has space to an extent of 12 feet on the southern side and towards the western side, there is a road to the plaintiff's site. Though the defendants 1 and 2 have taken such a defence in their written statement, DW.1 in his cross-examination stated before the Court as if he is not aware of the existence of road on the southern side and also on the western side of plaint 'A' schedule property. This clearly indicates that the defendants 1 and 2 have not approached the Court with clean hands, deposed before the Court by suppressing material facts and their oral evidence cannot be believed and accepted in view of the specific recital found in the registered documents Ex.P.12, Ex.P.13, both are sale deeds and Ex.P.19 plan and Ex.P.14 licence issued from Horamavu Grama Panchayath.
60 O.S.2036/2007
72. In addition to all these, the registered sale deed of the plaintiff as per Ex.P.13 in respect of site No.53, the sale deed of defendants 1 and 2 as per Ex.P.12 in respect of site No.54 will have its own presumptive value, since both are registered documents and both came into existence at an undisputed point of time, that too at the time when there was no strained relationship between the plaintiff and defendants 1 and 2.
73. The way in which DW.1 deposed before the Court and the way in which Ex.D.5 came into existence clearly establishes the fact that Ex.D.5 alleged approved plan produced by defendants 1 and 2 is not a document for worth belief, which came into existence in collusion with defendants 1 and 2, 3rd defendant and Horama Grama Panchayath. It is only to facilitate the defendants 1 and 2, Ex.D.5 might have been created in collusion with the 3rd defendant and the village panchayath. The defendants 1 and 2 have not produced their approved plan, licence if any 61 O.S.2036/2007 obtained to put up construction in site No.54. If that document is produced before the Court, it will have thrown some light on the defence of the defendants 1 and 2 in establishing as to whether there was any road on the southern side of 'A' schedule property or not and further to show with regard to existence of any alleged site No.54/1 as claimed by defendants 1 and 2 as per sale deed Ex.D.4.
74. On careful perusal of the materials available on record and the documents relied upon by the plaintiff in this case, there is a road on the western side of plaint 'A' schedule property for his ingress and egress and for free flow of air and light to the plaint 'A' schedule property, from where the plaintiff can make use of the air and light if any. The plaintiff failed to establish the fact that he has easementry right either by way of usage, grant or custom on the southern side of the plaint 'A' schedule property.
75. Also perused the decisions relied upon by the learned counsel for the defendants 1 and 2. 62 O.S.2036/2007 considering the facts and circumstances of the case and considering the fact that plaintiff failed to establish that he has got easementary right of necessity from the southern side of site No.53. As such, the said decisions in my humble view will not help the defendants in any way.
76. Also perused the decisions relied upon by the learned counsel for the plaintiff reported in AIR 2011 Supreme Court 952 at HEAD Note-B. The ratio and the principles laid down in the said decisions in my humble view is applicable to the case on hand in holding that plaintiff being aggrieved party is entitled to file the suit without invoking the provisions of Order 1 Rule 8 CPC.
77. However the plaintiff has placed cogent and convincing material to establish before the Court that defendants 1 and 2 put up compound wall and the gate across the 30 feet wide road, which is situated on the southern side of the plaint 'A' schedule property as shown in the layout plan Ex.P.19. This 63 O.S.2036/2007 compound wall is required to be demolished by way of mandatory injunction as prayed so as to remove the encroachment made by defendants 1 and 2 over the said 30 feet road, which is running East to West direction. The plaintiff also proved that he is entitled for the relief of mandatory injunction as prayed for. The plaintiff also proved that defendants 1 and 2 are using the road in question as their private property by putting up compound wall and gate, which is morefully shown in the plaint 'B' schedule and as such the plaintiff is entitled for the relief of permanent injunction. However the plaintiff is not entitled for the relief of easementary right as prayed for and accordingly I answer issue Nos. 1, 2, 4 and 5 in the 'affirmative' and issue No.3 in the 'negative'.
78. Issue No.6: In view of the findings on issue No.1 to 5, I proceed to pass the following:
ORDER The instant suit filed by the plaintiff against the defendants 1 to 3 is hereby partly decreed with costs.
64 O.S.2036/2007
Mandatory injunction is granted in
favour of the plaintiff and against
defendants 1 and 2 directing the
defendants 1 and 2 to demolish or remove the unauthorised construction put up by them across the 30 feet wide road by encroaching the same as shown in the approved plan Ex.P.19 and as shown in plaint 'B' schedule property, which is situated towards the southern side of plaint 'A' schedule property within two months from the date of this order at the cost of defendants 1 and 2.
If the defendants 1 and 2 failed to demolish the said illegal and unauthorised construction within two months from the date of this order, then the plaintiff is at liberty to get the wall demolished in accordance with law by executing the decree at the cost of defendants 1 and 2 and to recover the costs from the defendants 1 and 2.
Permanent injunction is also granted in favour of the plaintiff and against the defendants restraining the defendants, their agents, servants or anybody claiming 65 O.S.2036/2007 on behalf of defendants 1 to 3 from using the plaint 'B' schedule property as their private property as prayed for.
However the suit filed by the plaintiff with respect to the declaration of easementry right such as air and light is dismissed.
Consequently I.A.3 filed by the plaintiff Under Order 39 Rule 2-A CPC is also dismissed.
(Dictated to the Judgment Writer, computerized print out taken thereof is corrected, signed and pronounced by me in Open Court on this the 29th day of July, 2015).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1: Sri.Thomos Lobo PW.2: Sarojini Lobo. PW.3: Asif khan.
List of documents marked for the plaintiff:
Ex.P.1: Notice given to Executive Officer.
Ex.P.2 to Photographs.
P.11:
66 O.S.2036/2007
Ex.P.12: Certified copy of the sale deed dated
30.6.2004.
Ex.P.13: Sale deed dated 30.6.2004.
Ex.D.14: Permission letter dated 9.9.2004.
Ex.P.15: Assessment for the year 2004-05.
Ex.P.16: Demand register extract for the year
2004-05.
Ex.P.17: Tax paid receipt paid to Jilla Panchayath.
Ex.P.18: Encumbrance Certificate.
Ex.P.19: Certified copy of the approved layout plan
Ex.P.20: Rough sketch.
List of witnesses examined for the defendants:
DW.1 R.Jayaprakash DW.2: P.Narayanaswamy.
List of documents marked for the defendants:
Ex.D.1 to Photographs.
D.3:
Ex.D.4: Sale deed dated 11.11.2005.
Ex.D.5: Approved layout plan. Ex.D.6 & Two tax paid receipts. D.7: Ex.D.8 to Photographs. D.11: Ex.D.12: Negatives.
Ex.D.13 & Certified copy of the demand register D.14: extracts.
Ex.D.15: Certified copy of the charge sheet in C.C.No.24423/2006.
Ex.D.16: Certified copy of the deposition of Sarojini Lobo in C.C.No.24423/2006. Ex.D.17: Certified copy of the deposition of plaintiff in this case in C.C.No.24423/2006. Ex.D.18: Certified copy of the deposition of Anbu in C.C.No.24423/2006.
Ex.D.19: Certified copy of the deposition of Sudha in C.C.No.24423/2006.
Ex.D.20: Certified copy of deposition of Narase 67 O.S.2036/2007 Gowda in C.C.No.24423/2006. Ex.D.21: Certified copy of the Judgment in C.C.No.24423/2006.
Ex.D.22 & Two photographs. D.23:
Ex.D.24: Invitation card of House warming ceremony.
Ex.D.25: Khatha certificate. Ex.D.26: Certified copy of the assessment for the year 2013-14.
Ex.D.27 Tax paid receipts. to D.32:
Ex.D.33 Encumbrance Certificates. to D.36:
Ex.D.37: Khatha certificate in respect of site No.54/1.
Ex.D.38: Copy of assessment list extract. Ex.D.39: Receipt for having paid amount. Ex.D.40: Endorsement issued by BBMP. Ex.D.41: Copy of application given by plaintiff to BBMP seeking issue of layout plan.
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.