Bangalore District Court
Vimala Bai vs Seetharamaiah B R on 29 May, 2024
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O.S. No.4964/2008 - Judgment
KABC010133352008
IN THE COURT OF THE XVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-12) AT BENGALURU
Dated this the 29th day of May, 2024
PRESENT:Smt. Jyothsna. D, LL.B., LL.M.,
XVI Addl. City Civil & Sessions Judge,
Bengaluru.
ORIGINAL SUIT No.4964/2008
C/W
MISC No.611/2015
CAUSE TITLE IN O.S.No.4964/2008
PLAINTIFF : Smt. Vimala Bai,
W/o Parasmal Premji,
Aged about 50 years,
Residing at No.9, (Old No.88),
Manager Ranganna Galli,
Manavarthipet,
Bangalore-560053.
Represented by Smt/Sri K.P.A.,
Advocate
- Vs --
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O.S. No.4964/2008 - Judgment
DEFENDANTS: 1. Sri. B.R. Seetharamaiah,
S/o B.R. Ramanna,
Aged about 55 years,
Residing at No.8/2, II Cross,
Manavarthipet,
Bangalore-560053.
2. The Commissioner,
Bruhat Bangalore
Mahanagara Palike,
N.R. Square, Bangalore-
560002.
Defendant No.1 by Smt/Sri J.D.A.,
Advocates
Defendant No.2 by Smt/Sri M.R.P.,
Advocate
Date of Institution of suit 09.04.2008
Nature of suit Injunction Suit
Date of commencement of 21.06.2013
evidence
Date of Judgment 29.05.2024
Duration Year/s Month/s Day/s
16 02 20
(SMT. JYOTHSNA D.,)
XVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU
PARTIES TO MISC No.611/2015
PETITIONERS/PLAINTIFF SMT. VIMALA BAI
RESPONDENTS/ SRI B.R. SEETHARAMAIAH AND
DEFENDANTS ANOTHER
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O.S. No.4964/2008 - Judgment
JUDGMENT
Originally, this suit was filed by the plaintiff to pass a Judgment and Decree against the defendant No.1 in the nature of permanent injunction, restraining the first defendant, his agents, henchmen, servants and any workers working under his directions from trespassing and putting up any construction in the set back measuring East to West 25.6 feet and North to South 3.3 feet left by the plaintiff on the southern side of the schedule property and to grant such other reliefs.
2. The brief facts of the case are that :-
It is the case of the plaintiff that she is the absolute owner in possession and enjoyment of the property bearing No.9(old No.88), measuring East to West 29 feet and North to South 26 feet situated at Manager Ranganna Lane, Bangalore having purchased the same from her Vendor Smt. Durga Bai and others through the Sale Deed dated 26.06.2002 registered in the office of the Sub-Registrar.
Immediately after purchase, the revenue records are changed into the name of plaintiff. She is paying the taxes and other cess to the concerned authority. The registered 4 O.S. No.4964/2008 - Judgment Sale Deed dated 26.06.2002 is produced along with the plaint. The plaintiff has built a residential house after demolishing the existing old building in the year 2004- 2005. She has also borrowed huge loan from the Bank for construction by pledging and mortgaging schedule property and she has constructed the building after obtaining the sanctioned plan from the second defendant. She has followed all rules and procedures while constructing the building. She has left the setback on all the sides as per the building by laws of Municipal Corporation and as shown in the sanctioned plan. Ever since the date of purchase and after construction of the new building, she is residing in the schedule property along with her family members as its absolute owner in peaceful possession and enjoyment of the same. She has covered the setback measuring East to West 25.6 feet and North to South 3.3 feet on the Southern side with the compound wall only with an humanitarian consideration that it will cause inconvenience to the neighbors who are residing on the South-Western side of the schedule property. Though the setback area is left open, it exclusively belongs to the 5 O.S. No.4964/2008 - Judgment plaintiff and no other person/s is/are having any right, title or interest over the same.
3. It is further stated that the first defendant claims to be the owner of the property bearing No.8/2, 2 nd Cross, Manavarthi Pet, Bangalore, has constructed the house in his property without obtaining any permission or sanctioned plan from the defendant No.2. The defendant No.1 has not left any set back on any side of his building. Taking undue advantage of the fact that there is no compound wall to the schedule property, the defendant No.1 has attempted to trespass and put up the stair case in the Southern side of the schedule property in the setback left by the plaintiff. He is also trying to put up construction of the staircase by abutting and damaging the South- Western wall of the schedule property. The defendant No.1 has replied evasively and continued his illegal activities without hearing the plaintiff. Then she has given the representations through her husband to the officials of the second defendant bringing the said illegal action of the first defendant and requested to take appropriate action against him.
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O.S. No.4964/2008 - Judgment
4. In the month of August 2014 when the plaintiff and his husband went to their native Village at Rajasthan to look after their parents, taking undue advantage of the fact that there is no compound wall to the schedule property, the defendant No.1 has put up a structure for the stair case to his building in the Southern side setback of the schedule property without the consent or knowledge of the plaintiff. The defendant No.1 has put up structure for the staircase by abutting and damaging the South-Western wall of the schedule property. The first defendant has also not obtained any plan or license from the second defendant for the said construction and the same is unauthorized and illegal one. If the defendant No.1 finished the stair case construction, then the Southern side of the plaintiff's building will be heavily damaged and the plaintiff cannot enjoy free air and light.
5. It is further contend that the defendant No.1 has no manner of right, title or interest over the schedule property or on the setback left by the plaintiff. Though, several representations are given by the plaintiff in this regard to the defendant No.2 and also caused a statutory 7 O.S. No.4964/2008 - Judgment notice dated 11.04.2008 calling upon the defendant No.2 to take action against the first defendant, the second defendant has not taken any action against the first defendant so far because the first defendant has influenced them.
6. On 26.07.2008, the first defendant again attempted to trespass into the schedule property and construct the stair case illegally by causing damage to the Southern wall of the schedule property. However, the plaintiff has resisted the illegal action of the first defendant with the help of his neighbours and friends. The plaintiff has reported the said high handed action of the first defendant to the local Police. Since the first defendant is an official of the Karnataka State Police Department, the Police authorities have not taken any action against the first defendant. The plaintiff is peace loving person and helpless lady could not be able to resist the illegal act of the first defendant and his henchmen. By taking advantage of the same, the first defendant is threatening the plaintiff with dire consequences in case she questioned his illegal activities. In case, the first defendant is allowed 8 O.S. No.4964/2008 - Judgment to proceed further, it will block the free air and light to the plaintiff's house and also it is inconvenient to the free ingress and egress in the set back. Plaintiff and her family members are verymuch apprehended by the high handed and illegal activities of the first defendant. Hence, the plaintiff having no other alternative efficacious remedy, has filed this suit. The cause of action for the suit arose on 09.04.2008 when the first defendant attempted to trespass into the schedule property and construct stair case on the Southern side of the setback of the schedule property, on 11.04.2008, when the plaintiff issued statutory notice to the second defendant, on 26.07.2008 again when the first defendant attempted to trespass and put up construction in in the setback of the schedule property and on all the subsequent dates when the first defendant is attempting to construct the stair case abutting the building of the schedule property and interfere with the plaintiff's peaceful possession and enjoyment of the schedule property. Hence, the plaintiff has prayed to decree the suit.
7. In response to the suit summons, both the defendants entered appearance and filed their written 9 O.S. No.4964/2008 - Judgment statement separately.
In his written statement and additional written statement which is filed after amendment of plaint, the first defendant has contended that the allegations made in paragraphs 2, 3, 4, 5, 6, 7, and 8 of the plaint are all false, frivolous, baseless, mischievous, vexatious and put the plaintiff to strict proof of the same.
8. 1st defendant is not at all aware that the plaintiff is the absolute owner in possession and enjoyment of the property bearing No.9 (Old No.88), measuring East to West 29 feet. North to South 26 feet having been purchased the same from her vendor and denied the same. It is denied that the plaintiff had demolished the existing building in the year 2004-05 and put up building structure by borrowing huge loan amount by pledging/mortgaging the suit schedule property and she had obtained sanctioned plan from the 2nd defendant, as false and frivolous. It is denied that the plaintiff had left set back on all the side as per the building bye-laws of Municipal Corporation as shown in the sanctioned plan etc., as false and frivolous. 10
O.S. No.4964/2008 - Judgment
9. It is denied that the plaintiff left set back measuring East to West 25.6 feet and North to South 3.3 feet on the Southern side with the compound wall only with humanitarian consideration that it will cause inconvenience to the neighbors who are residing on the South-Western side of the schedule property and further, the setback area is left open exclusively belongs to the plaintiff and no other person/s is/are having any right, title or interest over the same much less the 1st defendant and plaintiff has kept windows, ventilation in open set back area of the schedule property, are all denied as false. No set back has been left by the plaintiff and the allegations alleging that it is constructed as per the sanctioned plan etc., are all denied as false. It is also denied that the plaintiff is also using the setback for washing and painting of the Southern side wall of the schedule property and the 1st defendant, who has constructed the house in his property without obtaining any permission or sanctioned plan from the 2nd defendant and further allegation that the 1st defendant has not left any setback on any side of the building taking undue advantage of the fact that there is no 11 O.S. No.4964/2008 - Judgment compound wall in the schedule property and the 1 st defendant has attempted to trespass and put up the staircase in the Southern side of the property are all denied as false.
10. It is denied that the 1st defendant is trying to put up construction of stair case by abutting and damaging the South Eastern wall of schedule property and when the plaintiff questioned the same, the 1 st defendant has replied evasively and continued his illegal activities without hearing the plaintiff and the plaintiff has given representation through her husband to the official of the 2 nd defendant bringing the said illegal action of the 1 st defendant and requested to take appropriate action etc., and the 1st defendant has no any manner of right, title or interest over the suit schedule property and the set back left by the plaintiff in this regard, the 2 nd defendant also caused statutory notice on 11.04.2008 calling upon the 2 nd defendant to take action against the 1 st defendant, the 2nd defendant has not taken any action against the 1 st defendant so far as the 1st defendant influenced them, as false, frivolous and baseless.
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O.S. No.4964/2008 - Judgment
11. It is further denied that on 26.07.2008, the 1 st defendant has again attempted to trespass in the schedule property and constructed the staircase illegally by causing damage to the Southern wall of the schedule property and the plaintiff has resisted the illegal actions of the 1 st defendant with the help of neighbours and friends and the plaintiff has reported the said highhanded actions of the 1 st defendant to the local Police, since the 1 st defendant is an official of Karnataka State Police Department, the Police authorities have not initiated or taken any action against the 1st defendant etc., and that the plaintiff is a peace loving person and helpless lady could not be able to resist the illegal act of the 1st defendant and his henchmen and taking undue advantage of the same, the 1 st defendant is threatening the plaintiff with dire consequences in case they questioned illegal activities, the 1 st defendant is an influential person in the locality having both men and monetary support may at any time trespass into the schedule property and constructed the staircase in the set back left by the plaintiff and thereby blocking the free air and light to the plaintiff's house and also it is inconvenient 13 O.S. No.4964/2008 - Judgment to the free ingress and egress in the set back and the plaintiff's family is very much apprehended by the highhanded illegal activities of the 1st defendant etc., are all denied as false, frivolous and baseless.
12. It is denied that the plaintiff is in peaceful possession and enjoyment of the schedule property and has got prima facie case in her favour and the 1st defendant having no right, title or interest over the schedule property is causing obstructions to the peaceful possession and enjoyment of the suit schedule property. It is contended that no cause of action arose on 9.4.2008 when the 1st defendant attempted to trespass into the schedule property and construct house on the Southern side set back of the schedule property and on 11.04.2008, when the plaintiff issued statutory notice to the 2 nd defendant and subsequently thereafter. The same is denied as false.
13. The plaintiff has suppressed true and real material facts and hence, the plaintiff is not entitled to any relief from this Court.
14. All the documents and annexure produced in the 14 O.S. No.4964/2008 - Judgment case are all nothing but concocted, artificially created, invented, forged and got up documents.
15. It is contended that the 1st defendant had obtained sanctioned plan and as per the sanction plan, he put up the construction as per the settlement deed executed on 28.09.1988 and he is in physical possession, occupation and enjoyment of his share and he has not put up any unauthorised structure and he has also no encroached anybody's land and had put up the structure as per the sanctioned plan. The schedule furnished in the plaint is incorrect and the allegation that the plaintiff has left set back of 3.3 feet on the Southern side is incorrect. Plaintiff has instituted the above suit in order to harass and humiliate the 1st defendant at the instance and instigation and inducement of one T.Ambu. Hence, the defendant No.1 has prayed to dismiss the suit with exemplary costs.
16. In his written statement, the 2nd defendant has contended that the suit is not maintainable either in law or on facts and it deserves to be dismissed in limine.
17. 2nd defendant has put the plaintiff to strict proof of averments in paragraph 2 of the plaint. 15
O.S. No.4964/2008 - Judgment
18. The averments in para No.4 of the plaint that the plaintiff has constructed the building by demolishing the old building etc., are not within his knowledge.
19. In regard to paragragh No.5 of the plaint, it is admitted that the 1st defendant being the owner of the property No.8/2, without obtaining the permission or sanctioned plan from BBMP and without leaving any set back on any side of the building. He has also admitted that the 1st defendant attempted to put up stair case on the Southern side of the schedule property ie., in the set back space left by the plaintiff and in this regard, the plaintiff has given representation to the 2nd defendant.
20. 2nd defendant has put the plaintiff to strict proof of the averments in para 6 of the plaint that the 1 st defendant has no right or title over the schedule property or on the set back of the suit schedule property and that she has issued statutory notice on 11.4.2008 to the 1 st defendant.
21. It is contended that the averments in paragraph 7 of the plain are not within his knowledge.
22. It is contended that the 1st defendant was trying 16 O.S. No.4964/2008 - Judgment to put up staircase and also the sump without obtaining any sanctioned plan and licence from the BBMP and hence, on 7.8.2001, notice under Section 321(1) of the KMC Act was issued to the 1st defendant calling upon him to remove the said unauthorised construction put up by him along with the sketch containing the details of the unauthorised construction and the percentage of deviation was also served on the 1st defendant along with the provisional order. Since the 1st defendant did not comply with the notice and the order nor did he issue any reply for the same, therefore, a confirmation order dated 20.08.2007 was issued to the 1 st defendant to remove all the unauthorised and deviated portion of the construction. The 1st defendant is trying to put up unauthorised construction without obtaining sanctioned plan and licence from the BBMP. There is no cause of action to file the above suit and it deserves to be dismissed. Plaintiff is not entitled to seek any relief against the defendant No.2 Hence, the defendant No.2 has prayed to dismiss the suit.
23. On 14.11.2014, the plaintiff has filed an IA under Order XXXIX Rule 2A read with Section 151 of CPC praying 17 O.S. No.4964/2008 - Judgment the Court to directed the 1st defendant to be detained in civil prison for breach of temporary injunction order passed in the above case and in the affidavit filed along with the said IA, she has sworn to the fact that she has filed the above suit for the relief of a judgment and decree of permanent injunction restraining the defendants from trespassing and constructing the staircase in the Southern side set back left by her in the suit schedule property and interfering with her peaceful possession and enjoyment of the suit property. She has prayed the Court to read the averments made in the plaint and the documents produced along with it as part and parcel of the affidavit to avoid repetition of facts.
24. It is contended that on 16.07.2008, this Court was pleased to pass a temporary injunction order retraining the defendant No.1, his agents, henchmen, officials, servants, administrators, executors, any person/s claiming under or through him from trespassing and putting up any construction in the setback measuring East to West 25.6 feet and North South 3.3 feet left by her on the Southern side of the suit schedule property till next date of hearing. 18
O.S. No.4964/2008 - Judgment The said interim order has been extended from time to time by this Court and is in force till today.
25. After service of suit summons, I.A. and interim order notice, the defendant No.1 appeared in the above case on 18.08.2008 through his counsel and contesting the matter. The second defendant has filed written statement contending that no licence or building plan are obtained by the first defendant for construction and hence, they will take appropriate action against him. The first defendant who is fully aware of the interim order passed against him in the above case, has willfully and deliberately causing disturbance to the possession of the plaintiff and making hectic efforts to construct the staircase on the set back left by her on the Southern side of her building.
26. In the month of August 2014, herself and her husband had been to their native place at Rajasthan to get treatment for her aged in- laws, taking advantage of the same, the first defendant constructed a skeleton structure in the South-Western side setback of the her property, by abutting and damaging their Southern side wall, to access to his property. The first defendant has made the said 19 O.S. No.4964/2008 - Judgment construction without any sanctioned plan or licence and that too in the passage left by them for the purpose of painting and cleaning of their Southern side building. Due to illegal and unauthorised construction, it has blocked free light and air to their property on the ground and first floor and they cannot use the said passage for cleaning and painting of building and it has fully blocked their access to South-Western side of building for any purposes.
27. The defendant No.1 who is an educated and prudent man and also a retired Police Officer is fully aware of the consequences of breach of the interim order passed by this Court, has willfully and purposefully disobeyed the order of this Court. The defendant No.1 has no due respect to the order of this Court. The defendant No.1 has breached all the terms of interim order and thereby he is liable to be punished under law. Hence, the plaintiff has filed this application.
28. The defendant No.1 has filed his objections to the above application, contending that the application is neither maintainable on law or on facts and the same is liable to be rejected in limine.
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O.S. No.4964/2008 - Judgment
29. The plaintiff, who had filed the above suit by suppressing the true, real and material facts, has sworn to a false affidavit by suppressing true, real and material facts and hence, on this ground alone, the application is liable to be rejected.
30. The plaintiff has already filed a similar application before this Court and once again, filed the above application by suppressing the material facts and on this ground also, the application is liable to be rejected.
31. The plaintiff has not shown any particulars regarding the violations committed by the defendant No.1. On this ground also, the application is liable to be rejected.
32. After receiving the suit summons, neither he put up any structure or made any alteration or modification in the suit schedule property. Despite that, the plaintiff has filed the above application with malafide intention of harassing and humiliating the defendant No.1.
33. Even though the plaintiff is fully aware of the fact that she has not left even a inch set back on the Southern side of the property and in fact, she herself has encroached upon the defendant No.1's property, she had 21 O.S. No.4964/2008 - Judgment put up unauthorised structure and also she had opened the windows without any permission or consultation with the defendant No.1 and encroached upon the defendant No.1's property. In order to overcome the above said illegal acts, she had filed the above said application by suppressing real, true and material facts.
34. Inspite of knowing fully well that the defendant No.1 is within the metes and bounds without encroaching upon the plaintiff's property and further he is having valid licence and sanctioned plan and further on account of she filing the above suit, the defendant No.1 has not put up construction, she has filed the above application, which is liable to be rejected.
35. The defendant No.1 has denied the entire averments made in the application as false, frivolous, baseless, vexatious, mischievous and concocted allegations. Hence, prayed to reject the application.
36. Based on the above pleadings, the following Issues are framed:
1) Whether the plaintiff proves her lawful possession over the suit schedule property on the date of the suit?22
O.S. No.4964/2008 - Judgment
2) whether the plaintiff further proves the alleged interference and obstruction to such of her possession and enjoyment of the suit property by the defendant No.1 and his men?
3) Whether the plaintiff further proves the attempt of 1st defendant, his agents, servants etc., in trespassing and putting up construction in the set back area measuring East-West 25.6 feet and North South 3.3 feet on the Southern side of the suit property left by the plaintiff?
4) Whether the plaintiff proves the inaction of the defendant No.2 when the matter was complained with it against the defendant No.1 for initiating necessary action?
5) Whether the defendant No.1 proves that the suit as brought is not maintainable for non- compliance of Section 482 of KMC Act?
6) Whether the plaintiff is entitled for the relief of permanent injunction as prayed?
7) What order or decree?
ADDITIONAL ISSUE:
1) Whether the plaintiff proves that the defendant No.1 has made unauthorised and illegal construction of stair case on the South Western side of suit property and it is liable to be demolished?
37. Heard both sides and perused the materials on 23 O.S. No.4964/2008 - Judgment record.
38. This court answer the above Issues is as follows:
Issue No.1: In the affirmative, Issue No.2: In the negative, Issue No.3: In the negative, Issue No.4: In the negative, Issue No.5: In the affirmative, Issue No.6: In the negative, Issue No.7: As per final order, Addl.Issue No.1: In the negative, for the following:
REASONS
39. Issue No 1 to 5 and Addl.issue No.1:- These Issues are inter-connected to each other, hence to avoid repeated discussions they are taken up together here under;
40. Admittedly, originally this suit is filed for permanent injunction against the 1st defendant, his agents, henchmen, servants and any worker working under his directions from trespassing and putting up any construction in the set back measuring east to west 25.6 feet and north to south 3.3 feet left by the plaintiff on the southern side of 24 O.S. No.4964/2008 - Judgment the suit schedule property and further prayer (b) for the permanent injunction restraining the defendant, his agents, henchmen, servants and any workers working under his directions from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property and other consequential reliefs.
41. Later, the plaint is amended and prayer for the relief of mandatory injunction was inserted as to direct the 1st defendant to demolish the unauthorized and illegal structure/staircase constructed by him to enter his house in the South-Western side set back of the suit schedule property or in default direct the 2nd defendant to demolish the said unauthorized and illegal structure/construction.
42. To prove the case of the plaintiff, her husband Parasmal Premji entered into witness box as her GPA holder and examined as PW1 and in support of the same, he has produced the GPA dated 01-04-2013. He has filed his sworn affidavit in chief under which all plaint averments are reiterated. To substantiate the case of the plaintiff, he has produced certain documents which are marked as Ex.P 2 to Ex.P 48.
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O.S. No.4964/2008 - Judgment
43. On the other hand, to disprove the case of the plaintiff and to defend his side, the defendant No 1 entered into witness box as DW1 and has filed his sworn affidavit in chief in which the contentions of written statement are reiterated. To substantiate his contentions, he has produced certain documents which are marked as Ex.D1 to Ex.D 10.
44. The learned Counsels for plaintiff and defendant No.1 have cross examined the respective witnesses.
45. Though defendant No 2 has filed his written statement but neither cross examined PW 1 nor lead his evidence.
46. To prove that the plaintiff is the owner in possession and enjoyment of suit schedule property mentioned above, he has produced the title deed and connected revenue documents which are marked as Exs.P 2 to 8 and in support of the same, he has produced Exs.P 34 to 38. Ex.P.2 is the attested copy of sale deed dated 26-06-2002 through which the plaintiff has purchased the suit schedule property by her vendors, Exs.P 3 and 4 are the attested copies of encumbrance certificates, Exs.P 5 to 8 are the documents pertaining to khatha in the name of the 26 O.S. No.4964/2008 - Judgment plaintiff in respect of suit schedule property, Exs.P 11 to 20 are the documents pertaining to payment of tax. Ex.P.34 is a copy of partition deed dated 02-01-1949 and Exs.P.35 to 37 are the copies of sale deeds showing the flow of title prior to purchase of the same by the plaintiff and Ex.P.38 is nothing but the copy of Ex.P.2 through which the plaintiff has purchased the suit schedule property.
47. Though the both the defendants in their written statement called upon the plaintiff to prove her ownership and possession over the suit schedule property, but in the cross examination, nothing contra is elicited against the same as the main dispute is about construction and interference. Hence, it is undisputed fact that the plaintiff is owner and in possession of suit schedule property by way of above undisputed documentary evidence of the plaintiff.
48. The main contention of the plaintiff is that the first defendant who claims to be the owner of the property bearing No.8/2, 2nd cross, Manvarthi Pet, Bangalore has constructed the house in his property without obtaining any permission or sanctioned plan from the second defendant. The first defendant has not left any set back on any side of 27 O.S. No.4964/2008 - Judgment his building. Taking undue advantage of the fact that there is no compound wall to the schedule property, the first defendant has attempted to trespass and put up the stair case in the Southern side of the schedule property in the setback left by the plaintiff. The first defendant is also trying to put up construction of the staircase by abutting and damaging the South-Western wall of the schedule property and continued the said construction activities.
49. Prior to that, in paragraph 4 of the plaint, she has averred that plaintiff has built a residential house after demolishing the then existing old building in the year 2004-
05. The plaintiff has constructed the building after obtaining the sanctioned plan from the second defendant. The plaintiff has followed all rules and procedures while constructing the building. The plaintiff has left the setback on all the sides as per the building bye laws of Municipal Corporation and as shown in the sanctioned plan. The plaintiff has not covered the setback measuring East to West 25.6 feet and North to South 3.3 feet on the Southern side with the compound wall only with an humanitarian consideration that it will cause inconvenience to the neighbours who are residing on the 28 O.S. No.4964/2008 - Judgment South-Western side of the schedule property. Though the setback area is left open, it exclusively belongs to the plaintiff and no other person/s having any right, title or interest over the same much less the first defendant. He kept windows and ventilators open to the said setback area on the schedule property. The plaintiff is also using the setback for washing and painting the Southern side wall of the schedule property. And next to that the plaintiff has made allegation as above against the defendants.
50. But in prayer portion, she specifically mentioned the alleged area of trespassing and putting up construction in the set back measuring East to West 25.6 feet and North to South 3.3 feet left by the plaintiff on the southern side of the suit schedule property.
51. The plaintiff has produced the sanction plan which is marked as Ex.P 10 pertaining to construction of her house in suit schedule property.
52. Next to that, she has produced copy of letters/representations/complaints against defendant No.1 before the Commissioner of Police and Chairman of Karnataka State Women Commission, which are marked as 29 O.S. No.4964/2008 - Judgment Exs.P.39 and 41. Exs.P.40 to Ex.P.43 are the endorsements issued by Shivajinagar Police station, Cottenpet Police Station and Chairman of Karnataka State Women's Commission receiving of letters/representations/complaints and in the said endorsements, they informed the plaintiff to resolve the dispute through the present case by mentioning this case number and another CC No.1025/09 before 3 rd ACMM Court.
53. Important point to be noted here is that, though the plaintiff alleged against the defendant that he is constructing without sanction plan and violating the rule regarding privilege of setback area, but no piece of document is produced to show that she made the complaint about the same to the concerned authority or there is any documents produced by the plaintiff to establish that she brought it to the notice of the concerned authority that is defendant No 2. Without going through proper channel this plaintiff filed complaint before Police and the Commissioner of Police and Chairman of Karnataka State Women Commission. It gives inference that if there is such illegal construction by the defendant No.1 with violation of rule 30 O.S. No.4964/2008 - Judgment and regulation of defendant No.2, then why this plaintiff has not made the complaint of the same before defendant No.2 against defendant No.1 as these all are well known to be followed by ordinary prudent man.
54. Exs.P.45 to 47 are the three photographs which show the passage, but these photographs are taken without sunlight, thereby there is no clarity about the spot.
55. Firstly, this Court has to gone through the documentary evidence of both the parties prior to go through the deposition of oral evidence.
56. On behalf of defendant No 1, Exs.D.1 to Ex.D3 - three photographs are marked through confrontation to PW1 in his cross examination. Ex.D 4 is the original partition deed dated 22-09-1988 through which defendant No.1 received title over the property which is mentioned in paragraph 5 of the plaint. As per this document, prior to partition, the composite property was the ancestral property of the defendant No.1 and in the Schedules of partitioned property shows the bifurcated Chakkubandi of the properties of their hissa, which will assist the court to conclude about the adjacent property of plaintiff and defendant No.1 and to get 31 O.S. No.4964/2008 - Judgment accuracy about the plaint schedule property to conclude about interference. In this document, in paragraph 2 of page No 7, it is noted as"ನಮ್ಮ ಪೈಕಿ ಸಿ ಮತ್ತು ಡಿ ಷೆಡ್ಯೂ ಲುದಾರರ ಹಿಸ್ಸೆ ಗೆ ಬಂದಿರತಕ್ಕ ಸ್ವ ತ್ತು ಗಳಿಗೆ ಮ್ಯಾನೇಜರ್ ರಂಗಣ್ಣ ಗಲ್ಲಿ ರಸ್ತೆಯಿಂದ ನಮ್ಮ ಪೂರ್ತಾ ನಂಬರು ಸ್ವ ತ್ತಿಗೆ ಉತ್ತರದಲ್ಲಿ ಅಂದರೆ ಎ ಷೆಡ್ಯೂ ಲುದಾರರ ಸ್ವ ತ್ತಿಗೆ ಉತ್ತರದ ಕಡೆಯಲ್ಲಿ ಮತ್ತು ಪಶ್ಚಿಮದ ಕಡೆಯಿಂದ ಡಿ ಷೆಡ್ಯೂ ಲುದಾರರ ಸ್ವ ತ್ತಿನವರೆವಿಗೂ ಪ್ಯಾಸೇಜನ್ನು ಬಹುತ್ವ ದಲ್ಲಿ ಬಿಟ್ಟು ಕೊಂಡಿರುತ್ತೇವೆ. ಈ ಪ್ಯಾಸೇಜನ್ನು ಸಿ ಮತ್ತು ಡಿ ಷೆಡ್ಯೂ ಲುದಾರರು ಮಾತ್ರ ಉಪಯೋಗಿಸಿಕೊಳ್ಳ ತಕ್ಕ ದ್ದಾಗಿರುತ್ತೆ. ಈ ರೀತಿ ಬಹುತ್ವ ದಲ್ಲಿ ಬಿಟ್ಟು ಕೊಂಡಿರುವ ಪ್ಯಾಸೇಜಿನ ಪೈಕಿ ಷೆಡ್ಯೂ ಲುದಾರರ ಸ್ವ ತ್ತಿಗೆ ಪಶ್ಚಿಮದವರೆಗೂ ಮತ್ತು ಸಿ ಷೆಡ್ಯೂ ಲುದಾರರ ಸ್ವ ತ್ತಿಗೆ ಉತ್ತರದ ಕಡೆಗೆ ಬರತಕ್ಕ ಪ್ಯಾಸೇಜು ಪೈಕಿ 3-0(ಮೂರು) ಅಡಿ ಪ್ಯಾಸೇಜುಗಾಗಿ ಬಿಟ್ಟು ಉಳಿಯತಕ್ಕ ಖಾಲೀ ಜಾಗದಲ್ಲಿ ಸಿ ಮತ್ತು ಡಿ ಷೆಡ್ಯೂ ಲುದಾರರು ಸಮಭಾಗವಾಗಿ ಅವರಿಗೆ ಅನುಕೂಲವಾಗುವ ರೀತಿಯಲ್ಲಿ ಸಮಹಕ್ಕು ಳ್ಳ ವರಾಗಿ ಅನುಭವಿಸಿಕೊಂಡು ಹೋಗಲು ಒಪ್ಪಿಕೊಂಡಿರುತ್ತೇವೆ. ಈ ಪ್ಯಾಸೇಜಿನಲ್ಲಿ ಎ ಮತ್ತು ಬಿ ಷೆಡ್ಯೂ ಲುದಾರರಿಗೆ ಯಾವ ವಿಧವಾದ ಹಕ್ಕು ಭಾದ್ಯ ತೆಗಳು ಇರುವುದಿಲ್ಲ .". It is important to note that this document is far prior to the date of plaintiff's sale deed dated 26-6-2002.
57. Exs.D.5 and 6 are the Encumbrance Certificates Exs.P.7 and 8 are documents of khatha and Ex.P.9 is the tax paid receipts but there is no dispute about the ownership of defendant No.1 over the said property.
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58. After competition of the evidence of both the sides, considering his statement in his cross examination as, "ನಾನು ಈಗ ವಾಸ ಇರುವ ಮನೆ RCC ಮನೆ ಎಂದರೆ ನಿಜ. ಅದರ ಅಳತೆ 15 ಇಂಚು 20 ಅಡಿ ಇರುತ್ತದೆ. ನಮ್ಮ ಮನೆ ಕಟ್ಟಿ ಸುಮಾರು 10 ವರ್ಷ ಆಗಿರಬಹುದು. ನಮ್ಮ ಮನೆ ಕಟ್ಟ ಲು ತೆಗೆದುಕೊಂಡಿರುವ ಪ್ಲಾನ್ ನಮ್ಮ ಕಡೆ ಇದೆ ಎಂದರೆ ನಿಜ. ಸದರಿ ಪ್ಲಾನನ್ನು ಹಾಜರುಪಡಿಸಲು ನನಗೆ ತೊಂದರೆ ಇರುವುದಿಲ್ಲ . ಆ ಪ್ಲಾನ್ ಸಿಗುತ್ತಿಲ್ಲ , ಸಿಕ್ಕಿ ದರೆ ಅದನ್ನು ಹಾಜರುಪಡಿಸುತ್ತೇನೆ". The plaintiff has filed IA calling for production of the same and as per order on that IA, the defendant has produced the said sanction plan and it is marked as Ex.D.10. The drawing showing the constructed ground floor with passage is marked as Ex.D 10(a).
59. In this plan, to the North it shows passage, to the West private property and to the East road.
60. The suit schedule property is mentioned as in the plaint as;
"All that part and parcel of the residential property bearing No.9 (old no.88), measuring East to West 29 feet and North to South 26 feet, situated at feet, situated at Manager Ranganna Lane, Manavarthipet, Bangalore - 560 053, Ward No.29 of BBMP, together with a RCC roofed constructed house thereon and bounded on; 33
O.S. No.4964/2008 - Judgment East by -Manager Ranganna Lane (Road) West by -Property of Dodda Rangaswamappa and Akkachamma (Anjanappa & Prabhavathi) North by- Property of Dodda Rangaswamappa and Akkachamma,Byrappa (B.L.Anjanamma) South by - Property of B.R.Ramanna (B.R.Aswathanarayana and B.R.Seetaramaiah)
61. But as per page No.5 of Ex.D.4, the partition deed, the schedule of the property of defendant No 1 mentioned as;
Dito Bangalore City, the Property situated in Manager Ranganna Lane of Manavarthapete Muncipal Old No 93, New No. 8 bounded by To the East : Property of B Raju;
To the West : Property of B R Yuvakumar To the North : Passage To the South : Property of Appanna Measuring East-West 15-0 feet, North-South 20-0 feet with an old house measuring approximate 2 sq ft.
62. Presumably, on comparing the above boundaries, one can understand that if the property of plaintiff and de- fendant are adjacent to each other, in the plaint, in the 34 O.S. No.4964/2008 - Judgment schedule it is mentioned that " to the South bounded by the property of B R. Ramanna (B.R. Ashwathanarayana and B. R. Seetharamaiah). B.R Seetharamaiah is none other than the defendant No.1 herein. Then, towards South of the prop- erty of the plaintiff, property of B.R.Ashwathanarayana and B. R. Seetharamaiah is located. If the said property is lo- cated towards South of the property of the defendant No.1 and B.R.Ashwathanarayana, then if a birds view is taken from the property of defendant No.1, the property of plain- tiff is located to the North of 1st defendant's property. But as per Ex.D.4 and Ex.D.10, to the North of the 1 st defen- dant's property, there is a passage. Then the plaintiff's property may be situated after the said passage as in the plaint schedule it is mentioned that to the South, the property of defendant No 1 is located. But in prayer No.1, it is stated that the defendant No.1 is putting up construction in the setback measuring East to West 25.6 feet and North to South 3.3 feet which is left by the plaintiff. But as interpreted above, this set back area is adjacent to the passage and after passage the building of defendant No.1 35 O.S. No.4964/2008 - Judgment may be in existence. But in the plaint there is no mention about the said passage.
63. Now this court gone through the cross examination of PW 1. In page No.11, paragraph 1, he stated that "ದಾವಾ ಆಸ್ತಿಯ ದಕ್ಷಿಣಕ್ಕೆ ದೊಡ್ಡ ರಂಗಪ್ಪ , ಅಕ್ಕ ಸಿಂಗಪ್ಪ ಪದ್ಮಾವತಿ, ಅಶ್ವ ತ್ತನಾರಾಯಣ ಇದ್ದಾರೆ. ಉತ್ತರಕ್ಕೆ ಪ್ರಭಾವತಿ ಇದ್ದಾಳೆ. ಪುಾರ್ವಕ್ಕೆ ಮ್ಯಾನೇಜರ್ ರಂಗಣ್ಣ ಗಲ್ಲಿ ಇದೆ. ನಾವು ಖರೀದಿಸುವ ಮೊದಲು ಅಶ್ವ ತ್ತನಾರಾಯಣನ ಮನೆ ಕಟ್ಟಿ ಆಗಿತ್ತು ಎಂದರೆ ಅದು ಹಳೇ ಮನೆ ಇತ್ತು . ಈಗ ಸಹ ಆ ಮನೆ ಹಾಗೇಯೇ ಇರುತ್ತದೆ. ಅಶ್ವ ತ್ತನಾರಾಯಣ ಮನೆಯ ಬಲಕ್ಕೆ ಭೀಮರಾಜು ಮನೆ ಇದೆ ಎಂದರೆ ಅವರ ಹೆಸರು ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ಸದರಿ ಭೀಮರಾಜು ಅಶ್ವ ತ್ತನಾರಾಯಣನ ತಮ್ಮ ಎಂದರೆ ನಿಜ. ಅಶ್ವ ತ್ತನಾರಾಯಣನ ಮನೆ ಹಿಂದೆ ಸೀತಾರಾಮಯ್ಯ ನ (ಪ್ರತಿವಾದಿ) ಮನೆ ಇದೆ ಎಂದರೆ ನಿಜ." Then the property of defendant No.1 is located behind the property of Ashwathanarayana. Then it gives inference after comparing with the plaint schedule that in the schedule it is mentioned as "to the South Property of B.R.Rmanna (B.R.Aswathanarayana and B.R Seetaramaiah)." As per above statement, in the front of the property of defendant No.1, there exists property of Ashwathanarayana. Then it establishes that in the middle of the property of plaintiff and defendant No.1, the house of Ashwathanarayana is located.
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64. Further he stated about the passage as in paragraph 2 that, "ಅಶ್ವ ತ್ತನಾರಾಯಣನ ಮನೆಯ ಹಿಂದೆ ಒಂದೇ ಗೋಡೆಗೆ ಹೊಂದಿಕೊಂಡಂತೆ ಪ್ರತಿವಾದಿಯ ಮನೆ ಇದೆ ಎಂದರೆ ನಿಜ. ಪ್ರತಿವಾದಿಯ ಮನೆಗೆ ಹೋಗಲು ಅಶ್ವ ತ್ತನಾರಾಯಣನ ಮನೆಯ ಪಕ್ಕ ದಲ್ಲಿ ಒಂದು ಪ್ಯಾಸೇಜ್ ಇದೆ ಎಂದರೆ ನಿಜ. ಆ ಪ್ಯಾಸೇಜ್ ಸುಮಾರು 4 ಅಡಿ ಅಗಲ ಇರಬಹುದು. ಪ್ರತಿವಾದಿಯ ಮನೆಯ ಹಿಂಭಾಗದಲ್ಲಿ ಆತನ ತಮ್ಮ ಯುವರಾಜಕುಮಾರನ ಮನೆ ಇದೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ಪ್ರತಿವಾದಿಯ ಮನೆಯ ಹಿಂದೆ ಬೇರೆ ಮನೆಗಳು ಇವೆ. ಆ ಮನೆಗಳಿಗೆ ಅಶ್ವ ತ್ತನಾರಾಯಣ ಬಿಟ್ಟ ಪ್ಯಾಸೇಜ್ ನಲ್ಲಿ ಹೋಗಬೇಕು ಎಂದರೆ ನಿಜ. ಆ ಪ್ಯಾಸೇಜನ್ನು ಅಶ್ವ ತ್ತನಾರಾಯಣ ಬಿಟ್ಟಿಲ್ಲ ಮೊದಲಿನಿಂದ ಎಲ್ಲಾ ಸೇರಿ ಬಿಟ್ಟಿದ್ದೇವೆ ಎಂದು ಸಾಕ್ಷಿದಾರರು ಸ್ವ ಇಚ್ಷೆ ಯಿಂದ ಹೇಳುತ್ತಾರೆ. ನಾವು ಖರೀದಿ ಮಾಡುವ ಹಿಂದಿನಿಂದ ಆ ಪ್ಯಾಸೇಜ್ ನಲ್ಲಿ ಜನರು ಓಡಾಡುತ್ತಿದ್ದ ರು ಎಂದರೆ ನಿಜ."
65. Though the plaintiff has produced the above mentioned photographs in the examination of PW1, but defendant No.1's counsel has confronted 3 photographs to PW 1 which are identified by him and marked as Exs.D 1 to 3 and in this regard he has stated that, " ನನಗೆ ತೋರಿಸುತ್ತಿರುವ ಒಂದು ಫೊಟೋದಲ್ಲಿನ ರೋಲಿಂಗ್ ಶೆಟರ್ ಇರುವ ಮನೆ ಸಹ ನಮ್ಮ ದು. ಸಾಕ್ಷಿದಾರರು ಒಪ್ಪಿ ದ್ದ ರಿಂದ ಸದರಿ ಫೋಟೋವನ್ನು ನಿಡಿ 2 ಎಂದು ಗುರುತಿಸಲಾಯಿತು. ನಾವು ಮನೆ ಕಟ್ಟ ಲು ರೆಸಿಡೆನ್ಸಿಯಲ್ ಪರ್ಪಸ್ಗೆ ಪ್ಲಾನ್ ಕೊಡಲಾಗಿದೆ ಎಂದರೆ ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ಈಗ ನನಗೆ ತೋರಿಸುತ್ತಿರುವ ನಿಡಿ 1 ರ ಪೋಟೋದಂತೆ ನಮ್ಮ ಮತ್ತು ಪ್ರತಿವಾದಿಯ ಮನೆಗಳ ನಡುವೆ ಎರಡು ಅಡಿ ಅಂತರವಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ." But he has not taken 37 O.S. No.4964/2008 - Judgment any pain to prove that there is distance of two feet between the house of the plaintiff and defendant.
66. Again he stated after marking of Ex.D 3 that, "ಈಗ ನನಗೆ ತೋರಿಸುತ್ತಿರುವ ಒಂದು ಪೋಟೋದಲ್ಲಿನ ಬಲಭಾಗದ ಕಟ್ಟ ಡ ನಮ್ಮ ದು ಮತ್ತು ಎಡಭಾಗದ ಕಟ್ಟ ಡ 1 ನೇ ಪ್ರತಿವಾದಿಯ ಅಣ್ಣ ಅಶ್ವ ತ್ತನಾರಾಯಣನದು ಎಂದರೆ ನಿಜ. ಸಾಕ್ಷಿದಾರರು ಒಪ್ಪಿ ದ್ದ ರಿಂದ ಆ ಪೋಟೋವನ್ನು ನಿಡಿ 3 ಎಂದು ಗುರುತಿಸಲಾಯಿತು. ಆ ಎರಡು ಕಟ್ಟ ಡಗಳ ನಡುವೆ ಇರುವುದು ಪ್ಯಾಸೇಜ್ ಎಂದರೆ ನಿಜ. ಸದರಿ ಅಶ್ವ ತ್ತನಾರಾಣನ ಮನೆಯ ಹಿಂಭಾಗ 1 ನೇ ಪ್ರತಿವಾದಿಯ ಮನೆ ಇದೆ ಎಂದರೆ ನಿಜ. 1 ನೇ ಪ್ರತಿವಾದಿಯ ಮನೆಯ ಹಿಂಭಾಗ ಆತನ ಸಹೋದರ ಯುವರಾಜನ ಮನೆ ಬರುತ್ತದೆ ಎಂದರೆ ಆತನ ಹೆಸರು ನನಗೆ ಗೊತ್ತಿಲ್ಲ . ಆ ಎರಡು ಮನಗಳಿಗೆ ಹೋಗಲು ಮೇಲೆ ಹೇಳಿದ ಪ್ಯಾಸೇಜನ್ನು 1 ನೇ ಪ್ರತಿವಾದಿ ಮತ್ತು ಆತನ ಸಹೋದರನು ಬಿಟ್ಟಿದ್ದಾನೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ನಾವು ಬಿಟ್ಟಿದ್ದೇವೆ." If the said the passage was really left by the plaintiff then which is the setback area left by the plaintiff as stated in the plaint.
67. Therefore, in cross examination of PW1 it is elicited that in between the house of the plaintiff and defendant No.1, there exists the house of Ashwathanarayana. Though in the plaint and sworn affidavit of the plaintiff, it is stated by the plaintiff that he left the set back area measuring East to West 25.6 feet and North to South 3.3 feet, but he has stated in his oral evidence that he 38 O.S. No.4964/2008 - Judgment left the passage. The documents of the defendant No.1 clearly show about the passage. Hence, plaintiff failed to prove that whether he is treating the same passage as set back area or he left separate setback area.
68. On perusal of cross examination of DW1, nothing is elicited by the plaintiff to prove about the said construc- tion alleged by him. There is admission about passage as elicited in the cross examination of PW1. He has produced the sanction plan about which discussion is made above. The said sanction plan was issued on 28-06-2007 and in the cross examination of DW1 dated 22-11-2022, Ex.P.5 which is marked in Misc No. 611/2015 has been confronted to him and identified portion of his house which is marked as Ex.D 5(a) and he has stated that, " ನಿ ಪಿ 5 ರಲ್ಲಿ ಮುಂಭಾಗದಲ್ಲಿ ಎಡಗಡೆಯಲ್ಲಿ ಕಾಣುವುದು ನನ್ನ ಅಣ್ಣ ಅಶ್ವ ತ್ತಪ್ಪ ಅವರ ಮನೆ. ನಿಪಿ5(ಎ) ಯಲ್ಲಿರುವ ಮೆಟ್ಟಿಲುಗಳು ವಾದಿಯ ಮನೆಗೆ ತಾಗಿಕೊಂಡು ಮೊದಲಿನಿಂದಲೇ ಇದೆ. ಸದರಿ ಮೆಟ್ಟಿಲುಗಳು ನನ್ನ ಮನೆಯ ಉತ್ತರಕ್ಕೆ ಇದೆ. ನನ್ನ ಮನೆಯು ನನ್ನ ತಾತನ ಕಾಲದಿಂದ ಇದೆ. ನಿಪಿ5(ಎ) ಹೊಸದಾಗಿ ಇತ್ತೀಚೆಗೆ ಕಟ್ಟಿರುವುದು ಎಂದರೆ ಸರಿಯಲ್ಲ . ನಾವು ನಿಪಿ5(ಎ) ಯನ್ನು 2007 ರಲ್ಲಿ ಕಟ್ಟಿಲ್ಲ ."
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69. Again the sanction plan is marked as Ex.D 10 and stated that," ನಿಡಿ 10 ರ ಪ್ರಕಾರ ನನ್ನ ಮನೆಯ ದಕ್ಷಿಣಕ್ಕೆ ಮೆಟ್ಟಿಲುಗಳನ್ನು ಕಟ್ಟ ಬೇಕು ಎಂದು ತೋರಿಸಿದೆ ಎಂದರೆ ಹೌದು. ನಿಡಿ10 ರ ಪ್ರಕಾರ ನಾವು ಮನೆಯನ್ನು ಕಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸಾಕ್ಷಿಯು ಹೌದು ಮತ್ತು ಮುಂದುವರೆದು ಮೊದಲು ಹೇಗಿತ್ತೋ ಹಾಗೆ ಇದೆ ಎನ್ನು ತ್ತಾರೆ. ನಿಡಿ 10 ರಲ್ಲಿ ಸಾಕ್ಷಿಯು ತನ್ನ ಮನೆ ಇರುವ ಜಾಗವನ್ನು ಗುರುತಿಸಿದ್ದು ಇದನ್ನು ನಿಡಿ10(ಎ) ಗುರುತಿಸಲಾಯಿತು. ನನ್ನ ಮನೆಯ ಉತ್ತರಕ್ಕೆ ಕಾಮನ್ ಪ್ಯಾಸೇಜ್ ಹೇಗಿರಬೇಕೋ ಹಾಗೆ ಇದೆ ಹಾಗೂ ಮುಂದುವರೆದು ಸಾಕ್ಷಿಯು ಈ ಪ್ಯಾಸೇಜ್ ಸಿ ಮತ್ತು ಡಿ ಶೆಡ್ಯೂ ಲ್ ರವರಿಗೆ ಮಾತ್ರ ಇದೆ ಎನ್ನು ತ್ತಾರೆ. " Regarding this, already discussion has been made supra while discussing about the boundaries of the properties.
70. The copy of plaint and written statement in OS No 4383/2007 are confronted to DW 1 and marked as Exs.P.49 and 50, but it will not help the plaintiff to prove her case as there is no finality in that case.
71. Therefore, while summing up the above discus- sion, the finding of this court is that it is undisputed fact that plaintiff and defendants are the owners of the respective properties as mentioned in plaint and they are in possession of their respective properties. Regarding the allegation of the plaintiff against defendant No.1 about the interference 40 O.S. No.4964/2008 - Judgment over the alleged set back area mentioned by the plaintiff as left by him measuring East to West 25.6 feet and North to South 3.3 feet is concerned, as discussed above, the plain- tiff has utterly failed to prove the interference of the defen- dant No 1. If such interference of the defendant No.1 were really there by illegally constructing the building by violating his sanction plan, then this plaintiff had opportunity to com- plain the same to defendant No.2. Though plaintiff made defendant No.2 as party to this suit, but there is no docu- ment pertaining to prior complaint or copy of issuance of statutory notice under Section 482 of KMC Act has been produced by the plaintiff.
72. Moreover, without any notice or representation to defendant No 2 by the plaintiff, plaintiff has no grounds to make allegation about the inaction of the defendant No.2 against defendant No 1.
73. Therefore, as per the facts and circumstances of the case and above discussions, this Court is of the consid- ered opinion that plaintiff utterly failed to prove the alleged interference of the defendant No.1 over the suit schedule property and putting construction as pleaded in the plaint. 41
O.S. No.4964/2008 - Judgment Moreover, though defendant No.2 kept mum after filing of written statement, but the plaintiff has not produced any documents pertaining to issuance of either statutory notice or complaint about illegal construction of the defendant No.1 to the defendant No 2, hence, plaintiff miserably failed to prove her case and accordingly, this Court answers Issue Nos.1 and 5 in the affirmative, Issue No.2 to 4 and Addl. Issue No.1 in the Negative.
74. Issue No 6 :- As per the above discussions and negative answer to Issue Nos.2 to 4, the plaintiff has not made out any ground for the relief of permanent injunction though she is in possession of suit schedule property and she utterly failed to prove the interference of defendant No.1 over the suit schedule property. Therefore this Court answers Issue No.6 in the Negative.
75. As discussed above, as the plaintiff has utterly failed to prove her case, Misc.No.611/2015 filed by the plaintiff under Order 39 Rule 2A CPC seeking to detain the defendant in civil prison for breach of temporary injunction order, does not survive for consideration. 42
O.S. No.4964/2008 - Judgment
76. Issue No 7:- For the forgoing discussions and reasons, this court is of the considered opinion that the suit filed by the plaintiff is liable to be dismissed and accord- ingly, proceeds to pass the following;
ORDER The suit filed by the plaintiff is hereby dismissed. No order as to costs.
In view of dismissal of the suit as above, Misc Case No.611/2015 do not survive for consideration.
Draw decree accordingly.
(Dictated to the Stenographer Grade I on computer, typed by him, corrected, revised and then pronounced by me in Open Court on 29.05.2024) (JYOTHSNA D.,) XVI Addl. City Civil & Sessions Judge, Bengaluru (CCH12) SCHEDULE All that part and parcel of the residential property bearing No.9 (Old No.88), measuring East to West 29 feet and North to South 26 feet, situated at feet, situated at Manager Ranganna Lane, Manavarthipet, Bangalore 560 053, Ward No.29, of BBMP, together with a RCC roofed constructed house thereon and bounded on:
East by :Manager Ranganna Lane (Road)
West by : Property of Doddarangaswamappa and
Akkachamma (Anjanappa & Prabhavathi)
North by :Property of Doddarangaswamppa and
Akkachamma, Byrappa (B.L.Anjanamma)
South by : Property of B.R.Ramanna (B.R.Ashwatha
43
O.S. No.4964/2008 - Judgment
Narayana and B.R.Seetaramaiah)
ANNEXURE
List of witnesses examined for the plaintiff PW 1 - Parasmal Premji List of witnesses examined for the defendants DW 1 - B.R.Seetharamaiah List of documents marked for the plaintiff's Ex.P.1 Special Power of Attorney E.P.2 Attested copy of the Sale Deed Ex.P.3 & Attested copies of Encumbrance Certificates P.4 Ex.P.5, P.6 Khatha Extract and Khatha Certificate and Khatha Extract and P.7 Ex.P.8 Attested Copy of Certificate Ex.P.9 Notice Ex.P.10 Plan Ex.P.11 Receipt Ex.P.12 Acknowledgement Ex.P.13 to Receipts 20 Ex.P.21 to Copies of Letters 27 Ex.P.28 Letter Ex.P.29 & Copies of Letters P.30 Ex.P.31 Copy of Legal Notice Ex.P.32 UCP Receipt Ex.P.33 Postal Acknowledgement Ex.P.34 Partition Deed Ex.P.35 to Sale Deeds P.38 44 O.S. No.4964/2008 - Judgment Ex.P.39 Copy of Letter Ex.P.40 Endorsement Ex.P.41 Copy of Letter Ex.P.42 Endorsements P.43 Ex.P.44 Plan Ex.P.45 to Photographs P.47 Ex.P.48 CD List of documents marked for defendants Ex.D.1 Photo Ex.D.2 Photo Ex.D.3 Photo Ex.D.4 Registered Partition Deed dated 22.09.1998 taken place between B.R.Ashwathanarayana and 3 others Ex.D.5 and Two Encumbrance Certificates 6 Ex.D.7 Katha Extract in the name of defendant No.1 Ex.D.8 Katha Certificate in the name of defendant No.1 Ex.D.9 One Tax Paid Receipt for the year 2017 in the name of defendant No.1 (JYOTHSNA D.,) XVI Addl. City Civil & Sessions Judge, Bengaluru (CCH12) 45 O.S. No.4964/2008 - Judgment 29.05.2024 (Judgment pronounced in Open Court vide separate judgment) ORDER The suit filed by the plaintiff is hereby dismissed. No order as to costs.
In view of dismissal of the suit as above, Misc Case No.611/2015 do not survive for consideration.
Draw decree accordingly.
(JYOTHSNA D.,) XVI Addl. City Civil & Ses-
sions Judge, Bengaluru 46 O.S. No.4964/2008 - Judgment