Bangalore District Court
Mr. Rajkumar .S vs Bruhath Bengaluru Mahanagara on 9 October, 2020
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH41) AT BENGALURU.
Dated this the 9th day of October, 2020.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.3747/2014
Plaintiff : Mr. Rajkumar .S
S/o Sooriyanarayanan
Aged about 34 years, r/at
Flat No.304, Heritage9 Apartments,
Chinnappanahalli Village,
K.R.Puram Hobli,
Bangalore East Taluk,
Bangalore560 037.
(By Sri.Prakash Hebbar .T Advocate)
AND:
Defendants: 1. Bruhath Bengaluru Mahanagara
Palike
Hudson Circle,
Nrupatunga Road,
Bangalore560 009,
Represented by its Commissioner
2 O.S.No.3747/2014
2. The Assistant Executive Engineer
Bruhath Bengaluru Mahanagara Palike
Mahadevapura SubDivision,
Mahadevapura Range,
Bangalore.
3. The Deputy Commissioner,
Bangalore Urban District,
Kempe Gowda Road,
Bangalore560 009.
4. the Tahsildar
Bangalore East Taluk
Krishnarajapuram,
Bangalore.
5. The State of Karnataka
Revenue Department
M.S.Building, 5th Floor,
Dr.Ambedkar road,
Bangalore560 001,
Represented by its Secretary
(By Smt.Prathima .V Adv. for D1,2
D3 to 5 placed Exparte)
i) Date of Institution of the 23052014
suit.
ii) Nature of the suit. Injunction suit
iii) Date of the 29112014
commencement of
recording of evidence.
iv) Date on which the 09102020
judgment was pronounced.
3 O.S.No.3747/2014
v) Total Duration Years Months Days
06 04 16
(RAVINDRA. M. JOSHI)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
****
JUDGMENT
This is a suit for permanent injunction.
2. The plaintiff has filed the suit seeking the relief of permanent injunction restraining the defendants, their servants, officials or any person claiming through them from demolishing schedule 'B' property, which is part of schedule 'A' property.
"All that piece and parcel of the portion of converted land in Sy.No.11/1 (Old Sy.No.11), measuring 6 guntas and Sy.No.12/1 (old Sy.No.12) measuring 5.12 guntas situated at 4 O.S.No.3747/2014 Chinnappanahalli village, K.R.Puram Hobli, Bangalore East Taluk, bounded on East byroad left in AECS layout, West by property belongs to Smt.Chitra Vasanthi Mohana Sundaram, North by private property (Anantha Rama Reddy property) and South by road as schedule 'A' property and all the 375 sq.ft. of undivided share, right, title and interest in the land i.e., in schedule 'A' property and the built apartment bearing flat No.304, in second floor of the apartment known as "Heritage9", built up area measuring 1389 sq.ft., consisting of two bed rooms and ceramic tile flooring, honne wood doors and steel windows and bounded on East by Setback area by road, West by Common passage and Flat No.305, North by Flat No.303 and South by Setback area, thereafter road as schedule 'B' property. The 5 O.S.No.3747/2014 plaintiff treated the above land and flat as schedule 'A' and 'B' property.
3. The plaintiff pleaded that he has purchased the residential apartment bearing Flat No.304 in the apartment building known as 'Heritage9 Apartments' through registered sale deed on 01/12/2010. Since the date of purchase, plaintiff has been in lawful possession and enjoyment of the flat. The flat purchased by plaintiff has been assessed to property tax with Bruhath Bengaluru Mahanagara Palike and plaintiff is paying tax regularly. It is averred that flat purchased by plaintiff is situated in a residential apartment building constructed as per the sanction plan issued by defendant No.1. The construction of apartment has been made on schedule 'A' property, which has been converted as per the orders of Special Deputy Commissioner, Bangalore Urban District. It is 6 O.S.No.3747/2014 averred that Flat No.304 i.e., schedule 'B' property is provided with all civic amenities like electricity and water. The apartment building in Aschedule property was constructed years ago and all the flats in the said apartment building are occupied by the various purchasers including plaintiff. The plaintiff averred that when this is the position, the officials of the defendant frequently came near schedule 'B' property, which is in occupation of plaintiff and threatened of demolishing as portion of schedule 'B' property was constructed on Raja Kaluve/Nala and would take forcible possession. They also threatened to demolish portion of apartment including schedule 'B' property. It is averred that schedule 'A' property is private land owned and possessed by one M.T.Thomas @ Mackel Thomas under the registered sale deed dated 13/08/1969. The plaintiff averred that on enquiry, he came to know that 7 O.S.No.3747/2014 Comprehensive Development Plan (CDP) prepared by defendant No.5, which contains the existence of all and any utility areas reserved like tank, public areas, playgrounds etc., for civic development. In the said CDP there is no mentioned of alleged Raja Kaluve. Therefore, the threat held out by the defendants are without authority and harass the plaintiff. The plaintiff averred that planning authorities, who have approved the CDP have only approved the sanctioned building plan for construction of apartment building and on the basis of the sanction plan, the apartment building has been constructed. Therefore, the contention of the defendants as to apartment building constructed forms part of Rajakaluve is wholly erroneous. Therefore, the defendants are to be restrained from interfering with peaceful possession and enjoyment of the schedule 'B' property. The cause of action accrues to the plaintiff 8 O.S.No.3747/2014 on 20/05/2014 when official of the defendant came near schedule properties and threatened the plaintiff to vacate 'B' schedule property immediately otherwise they will demolish it.
4. In pursuance of summons, defendant Nos.1 and 2 appeared through their counsel and filed written statement. The defendant Nos.3 to 5 inspite of service of summons, fails to put their appearance, as such they are placed exparte. The defendants in their written statement contending that suit of the plaintiff is wholly misconceived, as such it is liable to be dismissed in limine. The defendants denied the averments made out in para 3 of the plaint as to plaintiff is the owner of the schedule 'B' property. It is contended that entire property wherein the apartment has been constructed on Sy.No.11/1 of Chinnappanahalli village comes within the jurisdiction of Bruhath Bengaluru Mahanagara 9 O.S.No.3747/2014 Palike. It is averred that construction put up on the property is in violation of sanction plan. The plaintiff has not obtained the Occupancy Certificate as required under Section 310 of KMC Act. The defendant admitted the averments made out in para 4 of the plaint as to plaintiff is in possession of schedule 'B' flat. It is averred that builder has not taken occupancy certificate. Hence, the Revenue department has taken entry of the flat in 'B' form register. This itself clearly goes to show that apartment is not covered by any occupancy certificate, which is mandatory. The defendants admit the averments made out in para 5 of the plaint as to the property as per the zoning regulation is residential one and sanction plan obtained from concerned competent authority. However, the occupancy certificate has not been obtained and the occupation of the Flat is itself against provisions of 10 O.S.No.3747/2014 Karnataka Municipal Corporation Act. The defendants admit the averments made out in para 6 of the plaint. It is contended that entire constructions of the project made by the builder stands on the schedule property. However, a portion of the building has been built on the storm water drain. The concerned department have submitted a report relating to encroachment of storm water drain. The action of the encroachment of the drain has let to clogging of the storm water drain during the rainy season which is causing damage to neighbouring properties. The defendants denied the averments made out in para Nos.8 and 9 of the plaint as false. It is denied that officials of the defendants are threatening the plaintiff. It is contended that defendants will take action to remove the encroachment of storm water drain after providing sufficient opportunity as required under 11 O.S.No.3747/2014 the Act. The defendants averred that the city development plan is an official document. However, Rajakaluve etc, will reflect in village map. Since the area was under the control of Panchayath before the same came under the jurisdiction of Bruhath Bengaluru Mahanagara Palike, plaintiff cannot rely on CDP. The plaintiff has filed the present suit with malafide intention to prevent the defendants from exercising/doing their lawful duties. No cause of action accrues to plaintiff to file the suit. On these grounds and substance, prayed for dismissal of the suit.
5. On the basis of pleadings, the following issues are framed:
1. Whether plaintiff proves that he is in possession and enjoyment of 'B' schedule property ?
2. Whether plaintiff further proves that the alleged interference of the defendants with his possession and 12 O.S.No.3747/2014 enjoyment of the 'B' schedule property ?
3. Whether plaintiff is entitled for the relief sought for ?
4. What Order or Decree ?
6. To prove and substantiate the respective contentions, plaintiff examined himself as PW1 and got marked in all 10 documents at Ex.P.1 to Ex.P.10. The Assistant Executive Engineer of defendant Nos.1 and 2 examined as DW1 and got marked in all 25 documents at Ex.D.1 to Ex.D.25.
7. Heard the arguments.
8. The above issues are answered for the reasons, findings given in the foregoing discussions as:
REASONS
9. ISSUE NOs.1 TO 3 : These issues are inter connected and depending on each other. Therefore, 13 O.S.No.3747/2014 to avoid repetition of discussion, they are taken up jointly for consideration.
It is the case of the plaintiff that he is purchaser of schedule B property bearing Flat No.304 constructed in converted land Sy.No.11/1, Sy.No.12/1 of Chinnappanahalli village. He purchased schedule 'B' property through registered sale deed on 01/12/2010 and is in lawful possession and enjoyment of it since the date of purchase. He got schedule B property assessed to tax with Bruhath Bengaluru Mahanagara Palike and is paying tax regularly. The officials of defendants are frequenting schedule B property and threatening plaintiff that schedule B property is constructed and situated in a portion of Raja Kaluve. Since the schedule B property is forming part of apartment constructed on schedule A property, they would demolish schedule B property and would take 14 O.S.No.3747/2014 forcible possession. It is contended by the plaintiff that Comprehensive Development Plan (CDP) is an official document prepared by Government contains the existence of all and any utility areas reserved like tank, public areas, playgrounds, open spaces required for civic development. All such utilities are existing physically, then same would have been reflected in CDP, likewise Raja Kaluve. There is no such mention of existence of Raja Kaluve in CDP, the threat held out by the officials of defendants are without authority in law and it is afterthought to harass the owners of flats in schedule A property for wrongful gain. On the otherhand, defendant Nos.1 and 2 denied the fact that plaintiff has purchased schedule B flat constructed on schedule A property and is owner of it. It is further contended that schedule property comes within the jurisdiction of Bruhath Bengaluru Mahanagara Palike. The 15 O.S.No.3747/2014 construction put up on the schedule A property is in violation of sanction plan and plaintiff has not obtained the Occupancy Certificate as required under provisions of KMC Act. It is contended by defendants that entire construction of the apartment i.e., "HERITAGE9 APARTMENT" by the builder stands on the schedule property. However, a portion of flat has been built on Storm Water Drain. The concerned department of Bruhath Bengaluru Mahanagara Palike submitted a report relating to encroachment of storm water drain. The encroachment of the drain has let to clogging of the storm water drain during the rainy season which is causing damage to neighbouring properties. The builder has deliberately encroached upon the storm water drain and constructed apartment. The defendants further contended that Comprehensive Development Plan though official document, but, 16 O.S.No.3747/2014 Rajakaluve etc, will reflect in village map. Since the area where schedule property is situated was under
the control of Panchayath before the same came under the jurisdiction of Bruhath Bengaluru Mahanagara Palike. It is also contended by the defendant that they are not disputing the sanction plan for putting up of residential apartment as it has been issued by the competent authority, but the defendants are concerned of encroachment made by the builder by putting up constructions on storm water drain. The plaintiff has filed the present suit with malafide intention to prevent the defendants from exercising their lawful duties. To substantiate the contention, plaintiff got examined himself as PW1 and officials of defendant Nos.1 and 2 examined as DW1. Both have produced several documents.17 O.S.No.3747/2014
10. The plaintiff filed affidavit in lieu of chief examination by reiterating the plaint averments. In support of the contention plaintiff produced sale deed dated 01/10/2010 (Ex.P.1), revised master plan (Ex.P.3), property register extract (Ex.P.4), tax paid receipts (Ex.P.5), electricity demand bills (Ex.P.6,7), photographs with CD (Ex.P.8 to Ex.P.10). In the crossexamination, PW1 states that he has taken legal opinion before purchasing the schedule B property. Further, he states that he has not enquired with Bengaluru Development Authority officials about existence of Raja Kaluve in schedule property. PW1 denied the suggestion that schedule property is constructed on a portion of Raja Kaluve, as such Bruhath Bengaluru Mahanagara Palike has not issued Occupancy Certificate. PW1 further states that prior to purchase of schedule B property, he visited the spot and found that construction of 18 O.S.No.3747/2014 apartment was completed. Though further cross examination of the witness deferred at the request of defendant, but subsequently defendant fails to continue crossexamination.
11. On perusal of sale deed (Ex.P.1), it reveals that plaintiff purchased schedule B property constructed on schedule A property from one Mohan Thomas through registered sale deed on 01/10/2010. The property register extract, tax paid receipts, electricity demand bills (Ex.P.4 to Ex.P.9) reveals that after purchase of schedule property, khatha of schedule B property has been changed in the name of the plaintiff and plaintiff is paying monthly tax and also has taken electricity connection to schedule B property. All these documents demonstrates the fact that plaintiff has purchased schedule B flat through a registered sale deed and is in possession of the purchased flat. The 19 O.S.No.3747/2014 defendant in his pleadings has not denied the fact that plaintiff is in possession of schedule B property though in para 2, it is stated that it is not within the knowledge of Bruhath Bengaluru Mahanagara Palike whether plaintiff is owner of schedule B property or not. Even in para 3 of the written statement, the defendants admits and not disputed the possession of the plaintiff over the schedule B property.
12. The Assistant Executive Engineer of Bruhath Bengaluru Mahanagara Palike filed affidavit in lieu of chief examination and reiterated the contention taken in written statement, has been examined as DW1. In the crossexamination, he states that he do not know whether plaintiff is in possession of schedule B property. However, on going through the sale deed and other documents produced by the plaintiff, it can be say that plaintiff is in possession of schedule B property. 20 O.S.No.3747/2014
13. It is the contention of the defendants that at the time of construction of apartment on schedule A property, encroachment has been made in respect of storm water drain. The builder of apartment has not taken occupancy certificate from Bruhath Bengaluru Mahanagara Palike. The concerned department of Bruhath Bengaluru Mahanagara Palike submitted report relating to encroachment of storm water drain by builder. The defendant being a statutory authority is bound to remove encroachment. On the otherhand, the plaintiff contended that there is no storm water drain passing through schedule property, there is no mention of existence of such drain in Comprehensive Development Plan. On going through the documents produced on behalf of defendants, it reveals that defendant produced letter addressed to Commissioner, Bruhath Bengaluru Mahanagara 21 O.S.No.3747/2014 Palike by Deputy Commissioner, Bengaluru (Ex.D.1), letter correspondence by Bruhath Bengaluru Mahanagara Palike with Tahasildhar (Ex.D.2, 4), correspondence by Special Deputy Commissioner with Bruhath Bengaluru Mahanagara Palike (Ex.D.3), plaint, deposition of PW1 in O.S.No.3746/2014 (Ex.D.5,6), plaint copy of O.S.No.3745/2014 (Ex.D.7), conversion order passed by Deputy Commissioner (Ex.D.8), Original tippani pakka book in respect of Sy.No.11 and 12 (Ex.D.9 to Ex.D.11), photographs with CD (Ex.D.12 to 21), plaint, written statement, judgment and decree passed in O.S.No.25170/2014 (Ex.D.22 to Ex.D.25). All these documents discloses the fact that Survey Department attached to Tahsildhar, Bengaluru East conducted a survey and found that Raja Kaluve is passing through Sy.Nos.3 to 14 of Chinnappanahalli, K.R.Puram Hobli, Bengaluru East Taluk. Further 22 O.S.No.3747/2014 Surveyor submitted that by making encroachment of Raja Kaluve, several multistoried apartments are constructed, private layouts are formed. In this regard, the Deputy commissioner, Bengaluru by making correspondence with Bruhath Bengaluru Mahanagara Palike and other authorities, who are responsible for taking necessary steps for removing encroachment, asked them to take suitable action. Further, the plaint, written statement, judgment copy produced discloses that occupants of the apartment constructed in Sy.Nos.3 to 14 of Chinnappanahalli approached Court praying for grant of injunction restraining Bruhath Bengaluru Mahanagara Palike and other authorities from demolishing the flats constructed on these Sy.Nos. One of the suit has been dismissed by the Court.
14. The counsel for the defendants during the course of arguments submitted that Hon'ble High 23 O.S.No.3747/2014 Court of Karnataka in several writ petitions directed the Bruhath Bengaluru Mahanagara Palike to remove the encroachment on Raja Kaluve/Storm Water Drain. The counsel produced copy of judgment passed in W.P.No.38401/2014 dated 18/06/2019 & W.P.No.31394/2009. On going through the order passed in the writ petitions, it reveals that Hon'ble High Court directed the Bruhath Bengaluru Mahanagara Palike to remove encroachment over the storm water drain. On the otherhand, the counsel for plaintiff relied on the decisions in W.P.No.44277/2011 dated 10/02/2012. On going through the decisions, this Court finds that the facts and circumstances of the case decided is entirely different from the present case in hand. IN the case decided, the petitioner sought permission for road cutting to lay electrical underground cable for residential project. The request was rejected by 24 O.S.No.3747/2014 Bruhath Bengaluru Mahanagara Palike. The same has been challenged. In the present case, prior to amalgamating of Chinnappanahalli area into the jurisdiction of Bruhath Bengaluru Mahanagara Palike, it was under the jurisdiction of CMC, Mahadevapura. The necessary permission for construction of flat/apartment has been taken and put up construction also. The apartment put up on schedule A property is during 20092010. The CDP has been prepared in the year 2015. At the time of preparing CDP, already construction of schedule A apartment has been completed and flats are sold. The circumstances and facts in W.P.No.44277/2011 and present case are entirely different. In the present case, the defendants alleged of putting up construction of apartment by making encroachment of Raja kaluve/Storm Water Drain.
25 O.S.No.3747/2014
15. Further, on going through the letter correspondence between Government to Bruhath Bengaluru Mahanagara Palike and other concerned department, it goes to show that there is a water course flowing through Sy.Nos.3 to 14 of Chinnappanahalli village. The water course connected to Chinnappanahalli kere. The schedule A apartment has been constructed on Sy.No.11, 11/1 and Sy.No.12/1. Totally 11.12 guntas in these Sy.Nos. have been converted into nonagricultural land. Further, the Tippani Pakka Book in respect of these lands reveals that there is a pot karab land is existing in the converted land on Sy.No.11/1 and 12/1. These karab lands is not belongs to land owners, it belongs to Government. This karab land is keant for specific use. On perusal of original Tippani (Ex.D.9), in Sy.No.12 there is 5 guntas of land, which is meant for Raja Kaluve.
26 O.S.No.3747/2014
16. In this case, an apartment i.e., Heritage9 has been constructed in converted land Sy.No.11/1, 11/2 of Chinnappanahalli village. It is not the case of the plaintiff that water course of Chinnappanakere passing through Sy.No.11/1, 12/2 has been left out and apartment has been constructed. In this case plaintiff has not made builder of Heritage9 as party to the suit. The correspondence between the Government and other concerned department including Bruhath Bengaluru Mahanagara Palike disclose the fact that during survey conducted by survey department attached to Tahsildhar office, Bengaluru East, it is found that water course is flowing in Sy.Nos.3 to 14 of Chinnappanahalli and in these survey numbers, multistoried apartments are constructed and private layouts are formed by making encroachment of Raja Kaluve. The Government asked the concerned for taking 27 O.S.No.3747/2014 necessary steps for removing encroachment on the Raja Kaluve. In this regard, the Bruhath Bengaluru Mahanagara Palike measured the area of encroachment and marked with red ink on the wall of the building showing extent of encroachment. On perusal of photographs produced by the plaintiff (Ex.P.9), it can be seen such a marking on the wall by Bruhath Bengaluru Mahanagara Palike. The Bruhath Bengaluru Mahanagara Palike is bound to take steps for removing the encroachment of Raja Kaluve/Storm Water Drain. Therefore, any act in furtherance of removing the encroachment of Raja Kaluve cannot be considered as obstruction or interference for peaceful possession and enjoyment of schedule B property constructed on schedule A area. Whether plaintiff is bonafide purchaser of a flat or not, whether plaintiff purchased schedule B flat without ascertaining the existence of these 28 O.S.No.3747/2014 circumstances or whether builder with or without any malafide intention put up construction and built schedule A apartment by encroaching the water course or not are immaterial. The fact remains is building has been constructed by encroaching on Raja Kaluve/Storm Water Drain. It is not the case of the defendants that entire apartment has been constructed by encroachment including Raja Kaluve. It is the specific case of the defendants also that portion of schedule A apartment has been constructed on the Raja Kaluve. On considering the documentary evidence placed on record, this Court finds that plaintiff is the owner of schedule B property i.e., flat No.304 constructed on schedule A property known as 'Heritage9 Apartments'. Since the date of purchase of the flat, the plaintiff is in possession of it. However, the apprehension of the plaintiff as to officials of defendants are frequenting 29 O.S.No.3747/2014 the schedule B property and have threatened the plaintiff as schedule B flat is constructed on schedule A property, which is portion of Raja Kaluve/Nala and they would demolish the encroached area of Raja Kaluve cannot be considered as illegal interference or obstruction for possession and enjoyment of schedule B property. The officials of the defendant cannot be restrained from discharging their official duties of removing the encroached portion of the building in accordance with law. The plaintiff is able to prove that he is absolute owner and is in possession of schedule B flat, but fails to prove that act of the defendants is an interference or obstruction or illegal. Therefore, for these reasons, this Court answers Issue No.1 in the Affirmative, Issue Nos.2 and 3 in the Negative.
17. ISSUE NO.4: In the result, this Court proceeds to pass the following:
30 O.S.No.3747/2014
ORDER Suit dismissed. No costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her and corrected, revised, signed and then pronounced by me in the open Court on this the 9th day of October, 2020.) (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions Judge, Bengaluru.
*****
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFF:
PW.1 - Rajkumar .S
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFF:
Ex.P.1 Copy of sale deed dtd 01/10/2010
Ex.P.2 Acknowledgement issued by Housing
finance Limited.
Ex.P.3 Bangalore revised master plan for the
year 2015
Ex.P.4 Property extract
Ex.P.5 Tax paid receipt
Ex.P.6,7 Two electricity bills
Ex.P.8,9 Two photographs
Ex.P.10 CD
31 O.S.No.3747/2014
WITNESSES EXAMINED ON BEHALF OF
DEFENDANTS:
DW.1 - Papa Reddy
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANTS:
Ex.D.1 Letter dtd 15/05/2012
Ex.D.2 Copy of letter written to Tahsildar
Ex.D.3 Letter dtd 08/06/2012 received from
Special Deputy Commissioner
Ex.D.4 Copy of internal office note dtd
17/05/2012
Ex.D.5,6 Certified copy of plaint, deposition of
plaintiff in O.S.3746/2014
Ex.D.7 Certified copy of plaint in
O.S.3745/2014
Ex.D.8 Certified copy of conversion order
passed by DOCUMENT
Ex.D.9 Certified copy of Tippani
Ex.D.10, Certified copies of Pakka book
Ex.D.11
Ex.D.12 to 9 photographs
Ex.D.20
Ex.D.21 CD
Ex.D.22 to Certified copy of plaint, written
Ex.D.25 statement, judgment and decree
passed in O.S.25170/2014
(RAVINDRA. M. JOSHI)
XL Addl. City Civil & Sessions Judge, Bengaluru.
***** 32 O.S.No.3747/2014 33 O.S.No.3747/2014