Bangalore District Court
Sri.G.Shashank vs The Union Of India on 29 July, 2017
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 29th day of July 2017.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.27000/2011
Plaintiff: Sri.G.Shashank,
S/o.N.Govindaraju, aged about
19 yrs, R/at.No.101, First Floor,
Divyashree Residency,
H.D.Deve Gowda Road,
R.T.Nagar Post, Bengaluru-32.
(By Sri.M.Amarbabu, Advocate)
V/S
Defendants: 1. The Union of India, Rep. by its
Director General Ministry of
Defence & Estate, Rakasha
Bhavan, New Delhi.
2. The Defence Estate Officer,
Karnataka and Goa Circle,
Kamaraj Road, Bengaluru-01.
3. The Commandant, P.R.T.C., J.C.
Nagar, Bengaluru-560006.
(By Sri.A.N.Gangadharaiah, Advocate)
2 O.S. No.27000/2011
Date of institution of the suit 18.11.2011
Nature of the suit (Suit for Pro-note, Suit for Declaration &
Suit for Declaration and Possession, Permanent Injunction
Suit for Injunction, etc.)
Date of commencement of recording 28.03.2016
of the evidence
Date on which the Judgment was 29.07.2017
pronounced
Total duration Year/s Month/s Day/s
05 08 11
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for seeking the reliefs of declaration to declare the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property and for permanent injunction to restrain the defendants from interfering with the possession of the plaintiff over suit schedule property and for costs.
2. The description of the suit schedule property as shown in the schedule to the plaint is as follows:-
All the part and parcel of property bearing BBMP No.24 and 25, new Khatha No.24 of Kaval Byrasandra Ward No.95, Dinnur Sulthan Palya Main Road, now H.D. Devegowda Road, Bengaluru- 560032, measuring East to West: 50 feet and North to South: 60, 3 O.S. No.27000/2011 which consisting of building with 4 shops and two floors residential building consisting of 6 houses, bounded on:
East by: Remaining Property; West by: H.D.Devegowda Road; North by: Property No.25; and on South by: Private Property.
3. Case of the plaintiff, in brief, is as below: -
The plaintiff is the absolute owner and in possession and enjoyment of the suit schedule property. Originally the property is an ancestral property of Muninagappa, who is the great grand father of the plaintiff and after the death of Muninagappa, his sons namely Munivenkatappa, Papaiah, Muniyappa, Narayanappa, Venkatappa, Chinnappa, M.Ramaiah, got succeeded to the property of Muninagappa and accordingly, partitioned all the family properties by a partition deed and in the said partition the D- schedule property fallen to the share of the grand father of the plaintiff namely Narayanappa. During the lifetime of Narayanappa a suit came to be filed for partition in O.S. No.10582/87, by the father of the plaintiff and later on the said suit ended in a compromise and in the compromise the schedule property fallen to 4 O.S. No.27000/2011 the share of Narayanappa and his wife and also the uncles of plaintiff Jayaprakash and Ramamurthy and they have constructed the buildings thereon and rented out for the tenants. After the death of the father and mother of the plaintiff's father, the properties came to be divided by a re-arrangement among the plaintiff's father and his brothers under registered family partition dated 26.05.2003 and wherein the schedule property has fallen to the share of Govindaraju, the father of the plaintiff; i.e., B-schedule item No.1, totally measures 17760 sq ft., and the katha certificate came to be issued and the properties were assessed for tax. Out of the total extent 17760 sq ft some extent came to be sold in favour of M/s.Jain Housing and Construction Ltd., under the registered sale deed dated 03.12.2003, by the father of the plaintiff and retained the remaining towards the Western side of the property. The retained portion was consisting of the building constructed by the grandfather of the plaintiff/Narayanappa and by then it was only with A.C. Sheet roofing and it was not fetching good income thereby the father of the plaintiff got demolished the old building and constructed the building consisting of two floors residential 5 O.S. No.27000/2011 building and also commercial shops. The plaintiff and his brother G.Shravan along with their father got partitioned the properties and in the said partition the property bearing Khatha No.24 and 25 came to be divided equally among the plaintiff and his brother G.Shashank and the plaintiff got title to the property measuring East to West: 50 feet and North to South: 60 feet, under registered partition deed dated 08.06.2007. Thereafter, the property bearing katha No.24 and 25 was bifurcated by the BBMP and given katha No.24, for the schedule property by transferring the katha to the name of the plaintiff on 20.10.2009. The defendants are having men and machinery came near the property on 18.08.2011 and the same was resisted by the plaintiff and also caused a letter to the defendant No.2 to furnish the details of right over the schedule property; but, no reply has been given and thereafter again on 10.11.2011 the officials of the defendants came near the property and attempted to trespass into the schedule property. Hence, this suit arose.
4. After issuance of the suit summons and duly served upon them, the defendants No.1 to 3 appeared through their advocate Sri 6 O.S. No.27000/2011 Sri.A.N.Gangadharaiah; thereafter the defendants No.1 to 3 have filed their joint WS.
5. Case of the defendants No.1 to 3, in brief, is as below:-
The defendants No.1 to 3 contended in their joint WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. It is contended that the then Government of Mysore has acquired the land measuring 613 acres 38 guntas in the year 1912 inclusive of 2 acre 16 guntas in Sy.No.42 of the Matadahalli. The same were handed over to the Ministry of defence vide Board proceedings dated 26.02.1955.
Taking advantage of the defendants had not constructed the security wall over an extent of 2 acre 16 guntas, the plaintiff have created the documents in connivance of the revenue authorities by creating frivolous documents and making the illegal claim over the defendant's property and also attempting to make out a case on the false grounds. Further it is contended that the lands and buildings, which were in the use of the Ex State forces were transferred to the Govt. of India and before taking over the Ex State forces properties from the then Mysore Govt., there was extensive correspondences 7 O.S. No.27000/2011 taken place in between the Govt. of Mysore and Govt. of India, Ministry of Defence in regard to the handing over of Ex State forces properties situated in Bengaluru and Mysore. Further it is contended that both the Govts. after mutual consultations and pursuant to the orders of the Govt. of India, Ministry of defence constituted a Board of Officers which met on 26.02.1955 for the purpose of preparing the schedule of boundaries, areas, locations and descriptions sites belongs to the Ex Mysore State forces properties at Bengaluru and Mysore. Further it is contended that the above board having assembled and plans were prepared and pillars were erected in respect to site forming 613 Acre 38 Guntas numbering 1 to 90 along the boundary as shown in the plan in 1955. The Board Proceedings were signed by the president of the Board on 15.03.1955. Since then 613 Acres 38 guntas of land including the land in Sy.No.42 of Matadahalli which the plaintiff claiming as suit schedule property became as deemed possession of the defendants and the same is vests with Govt. of India Ministry of defence. Further it is contended that because of encroachment of the defence land by plaintiff in Sy.No.42 of Matadahalli, the 8 O.S. No.27000/2011 defendants had applied for Survey of the entire land in their possession by virtue land acquisition and taking over possession Sy.No.42 during 1955. Accordingly the Director of Land Records had carried out the survey of the land in Sy.No.42 of Matadahalli, at that time the plaintiff in order to avoid and who escape from the process of survey and its result, the plaintiff filed this case under the false grounds. Further it is contended that the plaintiff's cousin brothers namely Sri.Lakshmanna and Padmanna were claiming the title over the land measuring 2 acre 16 guntas by alleging the encroachment by these defendants, had filed a suit in O.S. No.15802/2011 and the same was disposed on 03.12.2009 by giving a findings regarding possession of the said land as the same is with this defendants. Further it is contended that it is the sole establishment manning the other vital defence activities, its security is at stake, if the suit property belongs to the defendants is not manned and secured by proper vigilance there will be national risk as the open area are prone to entry points for terrorist and other antinational elements such as foreign infiltrates. Hence, the defendants in its wisdom and on the advise of minister of defence 9 O.S. No.27000/2011 has taken all possible steps to cover the entire area of by putting compound walls and manning the road with security personnel. The suit schedule property is the absolute property of the defendants and at no point of time, it was the plaintiff's property. Further it is contended that one Papaiah, S/o.Muninagappa who is the brother of grand father of the plaintiff also had filed a suit for declaration, possession and injunction in O.S. No.355/1966 in respect of the Sy.No.41/1 and 42 measuring 18 guntas and 2 acres 30 ½ guntas of Matadahalli Village based on the title deed dated 01.03.1956 and the same was dismissed on 04.10.1972. Against this order, Papaiah preferred an appeal in RFA No.33/1974 was came to be dismissed on 23.06.1976. Subsequently, the said Papaiah and grand father of plaintiff Sri.Narayanappa were filed a another suit in O.S. No.1140/1982 before the City Civil Court for the relief of declaration, possession and injunction based on the title deed dated 01.03.1956 and the same was decreed in part and the relief of perpetual injunction was decreed by the trial court vide its judgment dated 23.02.1989. Against the said judgment, the Union of India; i.e., defendants preferred appeal before the Hon'ble 10 O.S. No.27000/2011 High Court in RFA No.317/1989 was came to be allowed on 02.01.1996 and the cross appeal filed by the plaintiffs were came to be dismissed. According to the plaintiffs in this suit, there is produced a registered partition deed taken place in between the sons of Muninagappa on 15.04.1972, there was no occasion for Papaiah and Narayanappa to file a suit for declaration. When the suit of the Papaiah dismissed on merits on 04.10.1972 in O.S. No.355/1966 and the R.A. No.33/1974 filed by him was also dismissed on merits on 23.06.1976 and subsequently, O.S. No.1140/1989 was dismissed on 23.02.1989 and the cross appeal RFA No.317/1989 was dismissed on 23.06.1976. In view of the same, the plaintiff suit is hit by principles of resjudicata. Hence, the suit of the plaintiff is hit by Section 11 of CPC. Further it is contended that the plaintiff has not made defence secretary as a necessary and proper party to the suit; hence the suit is bad for non- judiction of necessary and proper party to the suit. Thus, the defendants No.1 to 3 pray to dismiss the suit of the plaintiff with heavy costs.
11 O.S. No.27000/2011
6. In this suit after filing the WS by the defendants, the plaintiff has filed the rejoinder to the amended written statement of the defendants No.1 to 3. Therein plaintiff contended that the suit O.S. No.355/66 was filed only for an extent of 1 acre 9 guntas in Sy.No.42/A situated at Sultan Palya, Matadahalli, even assuming as per the case of defendants, not considering that the plaintiff is the owner of 1 acre 22 guntas in Sy.No.42 of Matadahalli, which consisting of 5 acres 22 guntas and the plaintiff is not the owner of 2 acres 6 guntas, as contended by the defendants the same is in possession of Military Department. The Military Authorities have put up fence to the land in their possession; but, in the judgment of O.S. No.355/66 the court clearly held that the plaintiff miserably failed to prove that he is the owner of Sy.No.42/A and he has also failed to prove that he is in the possession of the same; therefore, with the above said finding enlightening in the judgment in O.S. No.355/66 in respect of Sy.No.42/A measuring 1 acre 9 guntas came to be dismissed for not producing documents to the Sy.No.42/A and for want of non-compliance of Section 80 CPC notice and thereby the judgment in O.S. No.355/1966 cannot be 12 O.S. No.27000/2011 held to be decided on merits. The judgment in O.S. No.1140/82 and RFA No.317/89 has nothing to do with the suit schedule property and the defendants have clearly and categorically in all the proceedings claiming only to an extent of 2 acres 6 guntas in Sy.No.42 out of total extent of 5 acres 22 guntas and there is no claim in the earlier proceedings more than 2 acres 6 guntas and the remaining extent in Sy.No.42 is not subjected to any of the proceedings before any court of law. The WS and the evidence of DW-1 in O.S. No.1140/1982 led by the defendant has clearly and categorically stated that they are in possession of 2 acres 6 guntas land in Sy.No.42 out of the total extent of 5 acres 22 guntas. The defendants have not only misused the due process of law and they have taken law into their own hands, despite of the Hon'ble High Court orders in earlier proceedings. The defendants have invoked the provisions of Section 4 (1) (2) (ii) and clause (b) (ii) of public premises (eviction of unauthorized occupation) Act 1971 and the same was challenged in W.P.12853/2012 connected with 12854/2012 and 12855/2012 (GM-PP) and the Hon'ble High Court was allowed the same to keep the notices issued under abeyance till 13 O.S. No.27000/2011 they shall obtain appropriate orders in the civil court to proceed further in the matter on 06.08.2013; when the comprehensive suit for declaration of title is pending before the competent civil court between parties it is not kept open for the defendant to declare itself as the owner and to issue any such notices against the plaintiff and which is untenable in law and the question of resjudicata also not applicable to the present case in hand as contended by the defendants; because the subject of the matter of the above discussed suits are different with the present case in hand.
7. From the above said pleadings, following issues have been framed:-
1. Whether the plaintiff proves that he has succeeded the suit properties from his father and he became the owner of the suit schedule properties by getting a partition in between himself and his brother and he is in lawful possession and enjoyment of the suit schedule properties as pleaded in plaint?
2. Whether the defendant Nos.1 to 3 prove that the plaintiff has forged and created the documents relating to the suit properties for claiming ownership of the suit properties?14 O.S. No.27000/2011
3. Whether the defendants prove that the suit properties are allotted by the State and Central Governments for the use of Defence Ministry by acquiring the same?
4. Whether plaintiff proves that he is entitled for suit reliefs as prayed for?
ADDL. ISSUES:-
1. Whether the defendants prove that the suit is hit by resjudicata and constructive resjudicata?
2. Whether the plaintiff proves that the defendants are in unauthorized possession of 2 acres 6 guntas in Sy.No.42 of Matadahalli Village?
3. Whether the defendants prove that they have acquired the land to an extent of 2 acres 16 guntas in Sy.No.42 of Matadahalli Village as contended by them in the written statement?
5. What decree or order?
8. On behalf of the plaintiff, affidavit evidence of power of attorney holder of the plaintiff has been filed and he has been examined as P.W.1 and Exs.P.1 to P.51 documents have been got marked.
15 O.S. No.27000/2011
9. On the other hand, on behalf of the defendants also, affidavit evidence of defendant witnesses by namely Major Prasad BMG, Sri.Daljeet Singh, Sri.Banwarilal, Sri.K.Jayaprakash, Sri.Satheesh, & Sri.Shivaswamy have been filed and they have been examined as DWs.1 to 6 and Exs.D.1 to D.105 documents have been got marked.
10. Heard, the learned advocates for the plaintiff and defendants and perused the records. Learned advocate for the plaintiff has submitted written arguments also and the same has been considered. Learned advocate for the defendant No.3 has submitted written arguments also and the same has been considered.
11. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: Partly Affirmative, Issue No.2: Negative, Issue No.3: Negative, Issue No.4: Partly Affirmative, 16 O.S. No.27000/2011 Addl.Issue No.1: Negative, Addl.Issue No.2: Negative, Addl.Issue No.3: Partly Affirmative, Issue.No.5: As per final order, for the following:-
REASONS.
12. ISSUE No.1 to 4 & ADDL. ISSUE No.1 to 3: All these issues are interlinked each other; hence, for avoiding repetition I have taken up all these issues for discussion at one stretch. In order to prove the case of plaintiff, the power of attorney holder of the plaintiff by name Sri.G.Shravan is got examined as a P.W.1 by reiterating the plaint averments in his chief-examination stated that the plaintiff is the absolute owner and in possession and enjoyment of the suit schedule property, which is originally an ancestral property of Muninagappa, who is great grandfather of the plaintiff, it was inherited gradually by the grandfather of the plaintiff and father and plaintiff and his brothers etc., through the partition taken place gradually from the year 1972 to 2007 as above discussed in the plaint. It is further stated by the P.W.1 that the schedule 17 O.S. No.27000/2011 property has fallen to the share of Govindaraju, who is the father of the plaintiff; i.e., B-schedule item No.1, totally measures 17760 sq ft., and the katha certificate came to be issued and the properties were assessed for tax. Further it is stated that out of the total extent 17760 sq ft some extent came to be sold in favour of M/s.Jain Housing and Construction Ltd., under the registered sale deed dated 03.12.2003, by the father of the plaintiff and retained the remaining property, which come towards the Western side of the property. The retained portion was consisting of the building constructed by the grandfather/Narayanappa of the plaintiff and by then it was only with A.C. Sheet roofing and it was not fetching good income thereby the father of the plaintiff got demolished the old building and constructed the building consisting of two floors residential building and also commercial shops. P.W.1 further stated in his chief-examination that he himself and his brother G.Shashank along with their father got partitioned in the properties came to the father of plaintiff and in the said partition the property bearing Khatha No.24 and 25 came to be divided equally among himself and his brother G.Shashank 18 O.S. No.27000/2011 and the plaintiff has got title to the property measuring East to West: 50 feet and North to South: 60 feet, under registered partition deed dated 08.06.2007. Thereafter, the property bearing katha No.24 and 25 was bifurcated by the BBMP and given katha No.24, for the schedule property by transferring the katha to the name of plaintiff on 20.10.2009.
13. P.W.1 it is also stated that the defendants are having men and machinery came near the property on 18.08.2011 and the same was resisted by the plaintiff and also caused a letter to the defendant No.2 to furnish the details of right over the schedule property; if they are having any right and title over the same as claiming in their defence; but, no reply has been given and thereafter again on 10.11.2011 the officials of the defendants came near the property and attempted to trespass into the schedule property.
14. On the other hand, the defendant witness Major Prasad BMG given his evidence as a D.W.1 by stating that the defendants/Defence Department of Bengaluru City is the absolute owner in possession of the suit schedule property in land Sy.No.42, 19 O.S. No.27000/2011 Matadahalli Village, wherein land measuring 11.43 guntas Petrol Bunk & 16.44 guntas Shopping Complex are situated including large extent of land. As per the Military Land Register (MLR) the land measuring 11.43 guntas in which Petrol Bunk is erected & in 16.44 guntas Shopping Complex is constructed, including the remaining above said piece of land was taken over from the Mysore Government consequent upon the merger of Ex Mysore Maharaja Transport Corps properties into Indian Union, this area was declared vide Board proceedings held on 26.02.1995. The lands measuring 11.43 guntas in Petrol Bunk & 16.44 guntas in Shopping Complex is situated in five villages called Matadahalli in Bengaluru District. The said land was used for "Accommodation for Mysore Forces"
location known as "Sawar Line" of erstwhile Mysore Maharaja before independence. The properties such as these which belonged to Ex Mysore State Forces came into possession of Union of India consequent upon Mysore State acceding to the Indian Union and consequent upon Federal Financial Integration of State. Thus, the total lands and buildings which are in the use of the Ex State forces 20 O.S. No.27000/2011 situated at Bengaluru were transferred to the Govt. of India and before taking over the Ex State forces properties from the then Mysore Govt., there was extensive correspondences taken place in between the Govt. of Mysore and Govt. of India, Ministry of Defence in this regard to the handing over of Ex State forces properties situated in Bengaluru and Mysore. Further he has stated that subsequently both the Govts. after mutual consultations and pursuant to the orders of the Govt. of India, Ministry of defence constituted a Board of Officers which met on 26.02.1955 for the purpose of preparing the schedule of boundaries, areas, locations and descriptions sites belongs to the Ex Mysore State forces properties at Bengaluru and Mysore. Further D.W.1 stated that the above board having assembled and plans were prepared and pillars were erected in respect to site forming in 613 Acre 38 Guntas numbering 1 to 90 along with the boundaries as shown in the plan of the year 1955. The Board Proceedings were signed by the president of the Board on 15.03.1955. Since then 613 Acres 38 guntas of land including the land in Sy.No.42 of Matadahalli, same is vested with Govt. of India Ministry of Defence. D.W.1 further 21 O.S. No.27000/2011 stated in his chief-examination that the defendants are the Indian Army organization manning the sensitive Defence Establishment in the above said piece of A1 Defence Land. Its security is at stake for protecting from Anti National elements and as well as Land Grabbers/Mafia persons. Further he has stated that as per survey report of (Revenue Survey No.42), Matadahalli an area of 11.43 guntas in Petrol Bunk & 16.44 guntas in Shopping Complex has encroached by the respondent/plaintiff on vacant A1 Defence Land of (Revenue Survey No.42), Matadahalli Village, which belongs to Ministry of Defence and the said defence department is the absolute owner of the land which is encroached by plaintiff. Further he has stated that the plaintiff has produced a piece of paper to show and claim their right over the said land by producing some fraudulent documents prepared colluding with the revenue authority. The same is proved in O.S. No.2403/2007, in which the court has decreed the said suit filed against the plaintiff and his family members by holding that the Saguvali Chit and mutation registers are tampered/forged, it is discussed in its judgment order dated 28.02.2007. The another suit OS No.355/1966 and RA 22 O.S. No.27000/2011 No.33/1974 were also filed relating to the suit land came to be dismissed. Thereafter, this plaintiff filed this case and his brother G.Shravan filed in O.S. No.26999/2011 for seeking the similar reliefs in respect of their respective properties claimed in the respective suits. Besides the Plaintiff IA under Order 39 Rule 1 & 2 was filed against the defendants of this suit and the same is dismissed by this court, when the said order was challenged by the plaintiff before the Hon'ble High Court of Karnataka in MFA No.658/2014 wherein the Hon'ble High Court of Karnataka granted the order of status quo with direction to maintain the status quo in respect of the suit schedule properties till disposal of the suit on merit and remanded back to dispose the matter within 3 months. In support of the case of the defendants, the defendants have produced the number of documents to strengthen the case of defendants; kindly the said documents may be scrutinized along with his oral evidence and prays to dismiss the suit of plaintiff.
15. The defendants' got examined to one of their another witness Sri.Daljeet Singh, who is working as Clerk and also known as Naib Subedar at Parachute Regiment Training Centre and the 23 O.S. No.27000/2011 witness has given his evidence as a D.W.2 by stating that the defendants/the Defence Ministry of the India, a Branch Offices situated in Bengaluru is the absolute owner of the suit schedule property belonging to defense land which is in Sy.No.42 of Matadahalli Village, measuring 2 Acres 16 guntas as per the Military Land Register. Further he has stated that the plaintiff encroached the defense land in Sy.No.42, Matadahalli Village, and erected a building for petrol bunk in 11.43 guntas of land and a shopping complex of 16.44 guntas. It is further alleged against the plaintiff that the plaintiff and his family members have submitted forged and fabricated documents like the saguvali chit grant certificate. Particularly Ex.P.39. The rubber stamp put up in the notice of Revenue Survey Department is also forged one, which is shown as "Parchot Regiment" instead of Parachute Regiment and also the signature appearing in Ex.P.39 is also forged in order to have the illegal construction made by the plaintiffs. Further D.W.2 stated in his chief-examination that in Ex.D.3 Tahsildar, North Taluk Sri.Y.N.Beeralinge Gowda made a statement on 28.02.2007 that no part of Sy.No.1 sawar line is granted to civilians through 24 O.S. No.27000/2011 Saguvali chit and the entire Sy.No.1 of Sawar line village measures 373.33 Acres of land including the kharab land, undoubtedly it belongs to defense department. Further he has stated that according to his knowledge the father of the plaintiffs has created all forged documents to acquire the property of Defence Department with an illegal intention to grab the same.
16. The defendant another witness Sri.Banwarilal given his evidence as a D.W.3 by stating that he was working in PRTC from April 2003 to June 2006 at PRI department only. But, he was not working at Quarter Master Department. He retired on 30.06.2006. He was not nominated in any land survey activity and also he has not signed to any such document. Further D.W.3 stated in his chief-examination that in Ex.P.21 he has not signed and his signature is forged by someone and also he does not know any one by name Lakshmipathi who worked as land staff during his time of service with PRTC. The Deputy Commandant of PRTC has authorized to the Major Prasad who is their Officer of the PRTC to make contact to the related witnesses and to make enable the witnesses to depose before the court.
25 O.S. No.27000/2011
17. Defendants have got examined the another witness a Joint Director of the Land Records, Bengaluru, by namely K.Jayaprakash as a D.W.4. He stated in his chief-examination that he had received the letter from the officer by name one Bheemaiah of the PRTC, Bengaluru, wherein requested to make a direction to the concerned officer for making survey of Sy.No.42, Matadahalli Village and Sy.No.1 of the Sawar Line Village and also therein sought for making survey of Sy.No.3 and 8/1 of the Kavalabyrasandra, Bengaluru, by stating that if any encroachment anything is made by anybody in the above said lands by the neighbouring land owners, a necessary survey may be conducted and the survey sketch may be prepared along with the survey report and further requested to send the survey map and report of the same to their office. Further he stated that according to the said letter of the Defence Department he had written a letter to the Tahsildhar, North, Bengaluru and his subordinate by making a direction to the survey department officer and Thahsildhar of Bengaluru North Taluk to conduct the joint survey of the above said lands, which are in dispute in between the plaintiff and 26 O.S. No.27000/2011 Defence Department and to submit the survey sketch and report. Accordingly, on 21.8.2010 a joint survey was conducted to the above said lands in the presence of the Tahsildhar, North and other Survey Supervisor G.L.Dasar, Gangadhar, a First Grade Surveyor and other Surveyors by name Chandrakanth.H.N., and other Surveyors of the Survey Department; i.e., CTS No.2, KR Circle, Bengaluru, by namely Srinath.M.K., and another Surveyor H.Chandrashekar. It is also stated that the above said team of Surveyor and North Tahsildhar of Bengaluru City have conducted the joint survey as per Ex.D.12 and 13 and all the above said surveyors including the then Tahsildhar, Bengaluru North Taluk, Shivaswamy have signed to it. He further stated that the above said original survey map might have submitted in the Writ Petition No.24554-555/10 by the Tahsildhar, North Taluk. Therefore, it is not possible to produce the same in this court and he has been giving his evidence on the basis of the Xerox survey sketch and other documents, which were kept reserved in their office. It is admitted that Ex.D.12 and D.13 are issued to the officer of PRTC, which is coming under the 2nd defendant from the office of 27 O.S. No.27000/2011 Bengaluru Urban District and the said documents are considerable for deciding this case and he stated that all the entries made in Ex.D.12 and 13 are a true facts.
18. The defendant another witness Sri.Satheesh, who is serving as Sub-Divisional Officer Grade-II in the office of Defence Estates Office/2nd defendant given his evidence as a D.W.5 by stating that the 2nd defendant is a functionary under Ministry of Defence, Union of India and is in charge of acquisition of lands for various projects of defence department in the State of Karnataka and maintaining the records related to the defence lands situated in the State of Karnataka and the land in Sy.No.42 of Matadahalli village has reflected in the Military Land Register (MLR). Further he has stated that the plaintiffs have no right, title and interest over the suit schedule property. The land in question claimed by the plaintiffs is a part of defence land and the above said assets coming in the area of 613 acres 38 guntas of Ex-Mysore State Forces land, which is taken over from the then Mysore Govt as per transfer given to Defence Department in the year 1955, duly constituting a 28 O.S. No.27000/2011 Board of Officers comprising of civil and military authorities formed for the purpose of the conducting meeting in respect of a taking decision about the protection of Defence land situated in Bengaluru. Before taking over the said land from the Govt. of Mysore, it was under the use and occupation of Ex-State Mysore Forces. The land measuring 2 acres 16 guntas in Sy.No.42 of Matadahalli village is part of the above said Ex- State Force Property and the defendants Military is in possession and enjoyment of the same for more than 6 decades by the Govt. of India, Ministry of Defence. Further D.W.5 stated in his chief-examination that during the time of handing over of the land by the Govt. of Mysore to the Ministry of Defence, the decision was taken for fixing the boundaries of the defence land situated in Bengaluru City and pillars were erected numbering from 1 to 90. The entire land was/is under occupation of various defence services such as under Para Regiment Training Centre, Controller of Quality Assurance, Naval Detachment and DIQA. Further an extent of 07 acres of defence land in Sy.No.1 of Savarlanes village was handed over to Ministry of Information 29 O.S. No.27000/2011 and Broadcasting for locating Doordarshan Kendra, Bengaluru. Further he has stated that an extent of 02 acres 16 guntas was originally acquired for the camping ground of the Imperial Service Lancers' Regiment vide notification No.Mily.966- 169-08-45, dated 07.03.1912. Accordingly a sanction from the Principal Director, Defence Estates, Southern Command, Pune has been obtained vide their letter No.18516/11/DE dated 20.05.2009 and Military Land Register has been amended accordingly. Further D.W.5 stated in his chief-examination that joint survey of defence land was carried out by the state revenue authorities in the year 2010 for the land under Para Regiment Training Centre and a survey sketch was prepared and in the said joint survey sketch of the Taluka Surveyor and a Surveyor of Survey Department coming in Bengaluru City in the leadership of the Tahsildhar, Bengaluru North Taluk, it can be seen that an extent of 16.44 guntas in Sy.No.42 of Matadahalli Village is shown in distinct colour under encroachment and the said joint survey report clearly established the rights and title of the Union of India. Further he has stated that the alleged land claiming by the plaintiff by way of 30 O.S. No.27000/2011 revenue authority is not a title document to substantiate the right over the property in question to the plaintiff. The boundary of the suit schedule property is incorrect. Correct schedule of the suit schedule property are towards North there is Sy.No.43 of Matadahalli Village, South and Eastern side is Defence land. Only towards Western side there is Deva Gowda Road is situated (previously known as Adi Kabir Asram Road).
19. Further one Shivaswamy, who is the Asst.
Commissioner of the Chikkaballapur, the then Tahsildhar of North Taluk, Bengaluru, got examined as a D.W.6. He also stated like a D.W.4 by stating that after receiving the letter from the Joint Director of the Land Records, he issued a survey notice on 7.8.2010 to the neighbouring land owners and owners of the above said suit properties by intimating the date of survey which will be conducted as on 9.8.2010 and requested to them to be present upon whom survey notices will be served for co-operating to the joint survey of their department and city survey department and on 9.8.2010. Further D.W.6 stated that on 9.8.2010 he himself and other Survey Supervisor of their Bengaluru North Taluk by namely 31 O.S. No.27000/2011 J.L.Dass and other Surveyors Gangadhar, Chandrakanth and also Surveyor of City Survey by name Srinath and Chandrashekar visited to the suit schedule property, a staff of the PRTC were present and the persons; i.e., plaintiffs and others claiming ownership of the above said 4 survey numbers and also other villagers were present. It is further stated that before starting the survey work they were scrutinized the documents of survey records of their Taluka Survey Department carried to the spot relating to the said lands; i.e., Tippani, Aakar Band and RTC. It is further stated that then the officials of the PRTC produced the Gazette Notification published in the period of Mysore State, which was published during the period of Mysore Maharaja belonging to the above said all four lands. In the said Gazette Notification there is a entry about the lands handed over to the Defense Department; i.e., PRTC of Bengaluru City. It is also stated that they have scrutinized the documents and compared the survey records maintained in both office relating to Matadahalli, Sy.No.42 and other properties along with Gazette Notification of the Old Mysore State and thereafter conducted the joint survey. At the time of 32 O.S. No.27000/2011 survey, it is found that near about 11.43 gunta is encroached by the neighbouring land owner and a petrol bunk was erected in the encroached land. It is also stated that in the North-West corner of the Sy.No.42 of the Matadahalli Village found a 16.44 gunta is encroached by the neighbouring land owners in the land of defence, and near about 6 gunta of the land is encroached in the North-East of Sy.No.1 of the Matadahalli Village by the neighbouring land owners in the land of Defence. Further it is found that near about 15 guntas is encroached in Sy.No.8/1 of Kalabyrasandra. Thus, in detail the joint survey is conducted after coming to conclusion by making a discussion of the all joint surveyor, they have come to conclusion about the above said encroachment founds in various above said lands and prepared the joint survey map along with the report by explaining the encroachment made in the defence land by the neighbouring land owners. Thereafter, the survey sketch and report were sent to the office of ADLR, Bengaluru, through the Bengaluru North Tahsildhar Office and another office copy was kept in Tahsildhar office.
33 O.S. No.27000/2011
20. Upon perusal of the cross-examination of the P.W.1 he stated in his cross-examination dated 19.10.2016 that he is a BBM and MA Degree holder and detail stated about that his great- grandfather Muninagappa was having 7 children as stated in the chief-examination, among them a male children as stated in chief- examination and other female children were born to his deceased grandfather Narayanappa and admitted that one Papaiah is being a elder brother of his father Narayanappa. Further stated that during the lifetime of the Narayanappa in the year 1972 only through the registered partition deed, his grandfather and his brothers were partitioned in their family properties including the land Sy.No.42 of the Matadahalli Village and it is also categorically admitted in page No.13, 14 and 15 of the cross-examination that a O.S. No.1140/82 and 355/72 and RA No.33/74 and RFA No.317/89 were filed before the City Civil Court and Hon'ble High Court of Karnataka in respect of suit schedule property. Even in the cross- examination relating to the said suit property he stated that his grandfather Narayanappa and his brother Papaiah were filed O.S. No.1140/82 against the defendants of this suit, which is decreed 34 O.S. No.27000/2011 partly in favour of them; but, in the said case no any permanent injunction is granted against the defendant. It is also stated in his cross-examination that the case of the defendant in the said suit was pertaining to Sy.No.41 not for the Sy.No.42 of Matadahalli Village and the suit O.S. No.355/72 was filed by the Papaiah and in which the defendants had filed the WS and got amended the same and it is also stated that he does not know after the full pledged trial the said suit is dismissed by the trial court on merit and RA No.33/74 was filed and same is dismissed in District Civil Court, Bengaluru. It is further he stated that O.S. No.1140/82 is partly decreed by stating that the suit schedule property are belonging to the Papaiah and Narayanappa and declared as they are the owner and possessor of the said property; but, permanent injunction is not granted in their favour. It is also stated that it was well known to him that his grandfather Narayanappa and Papaiah were filed the above said suit in respect of Sy.No.42/2 measuring 2 acre 30.5 guntas and Sy.No.41/1 measuring 18 gunta and against the said judgment a RFA No.317/89 was filed before the Hon'ble High Court of Karnataka and he does not know that along with the said 35 O.S. No.27000/2011 appeal of the plaintiff, there was a cross appeal of the defendant also was filed, when the appeals were before the Hon'ble High Court during that period his grandfather Narayanapa was came on record as a 2nd respondent and after the death of Narayanappa, plaintiff's father was brought on record as a respondent No.2 (b) and it is also stated that he does not know if the said RFA is dismissed. In page No.16 of the cross-examination of P.W.1 he stated that in the year 2003 there was a partition taken place in between his father, brothers and sisters in the property succeeded by grandfather of plaintiff by name Narayanappa, which is a marked at Ex.P.16. In the said partition in the year 1972 a D- schedule property was came to his father Govindaraju. It is also answered that Sy.No.42/1 was not written in partition deed to show the same that it is came to his father Govindaraju; but, he stated that in which, partition deed Sy.No.42 is written as belonging to his grandfather. Further he has given a explanation that a wrongly and due to oversight Sy.No.42/1 is written instead of Sy.No.42 of the Matadahalli Village and he admits that in Ex.P.20 is a rectification deed produced before this court is not signed by his grandfather or 36 O.S. No.27000/2011 brothers and sisters before executing the same, they were already died before executing the said deed. Later on his father is got rectified the document after 30 years and in the year 1972 a some corrections were made relating to their grandfather, brothers and sisters in respect of their property and there was no any impediment to get rectify the rectification deed immediately and it is admitted that a partition taken place in O.S. No.10582/87, by filing compromise petition; but, admitted that according to Ex.P.16, which is a partition deed neither their grandfather nor his father or others have not got rectified the Ex.P.20 and specifically denied that suit schedule property is not belonging to the Muninagappa and it is belonging to the Military and further denied that Ex.P.18 Gazatte Notification published for denotification of the land for the purpose of forming layout by the CITB is produced for making false claim over the said property in future as Sy.No.42, measuring 2 acre 30 gunta and it is belonging to the Defense Department and it is further stated that he does not know O.S. No.5158/2010 was filed against the defendant and obtained the permanent injunction in respect of Sy.No.42 of Matadahalli Village 37 O.S. No.27000/2011 and it is also stated that he does not know that O.S. No.5158/2010 filed in respect of the suit schedule property of the above said suit in Sy.No.42, there is given a findings that the same is belonging to the defendants and it is further admitted that after the partition a portion of Sy.No.42 is sold out to Jain Construction. Excluding the above said a sold out property and the property, which was given to Jain Construction from his father and remaining portion of the said property is got partitioned along with the certain properties in the year 2007 as per Ex.P.5. Further in his cross-examination, he stated that he does not know he himself, and his father and other brothers were got surveyed the property either before or after the partition or not, in the entire further cross-examination of P.W.1 a number of questions raised regarding the revision petition filed before the Deputy Commissioner by challenging the joint survey report and sketch prepared on 21.8.2010, which were filed before the DC, Bengaluru Urban and also writ petition filed before the Hon'ble High Court of Karnataka and some of them are rejected. He denied that Ex.P.2 to 9 and 22 are the forged documents and all other questions are relating to the revision filed before the Deputy 38 O.S. No.27000/2011 Commissioner, Urban, Bengaluru, for staying the joint survey conducted and prepared the map and report by the then Tahsildhar, Bengaluru North Taluk and Surveyor of City Survey coming under the ADLR in the year 2010 and against which a writs were filed; but, in the writ it is directed that the point of dispute of the joint survey report is required to be decided before the civil court; i.e., in this suit and other two suits O.S. No.26999/2011 & 27001/2011 and necessary to be trace out about the validity of the said survey map and survey report and it is also stated that there were numbers of civil and criminal cases also taken place in between the plaintiff and defendants and he denied that in the year 1912 a Mysore Maharaja including the suit survey No.42 of Matadahalli measuring 2 acre 16 gunta land and other surrounding lands in total measuring 613 acres was handed over to the defense for running Military Parade and other purposes and there was a agreement taken place in between the Mysore Maharaja and Defense in respect of Sy.No.42 measuring 2 acre 16 guntas of the suit property. It is denied that from that day till today the said suit land is not belonging to plaintiff family and the said property is 39 O.S. No.27000/2011 belonging to the Defense Department and it is further denied that plaintiff and their family members have falsely claimed by got creating a partition deeds and other documents of Revenue Authority and BBMP etc., by stating that it is came to him in partition.
21. Upon perusal of the cross-examination of the D.W.1 dated 13.1.2017 it appears that a certified copy of survey sketch dated 7.3.1955 of the Mysore Govt. is produced, which is marked at Ex.D.5 and proceedings of the Xerox attested copy of the above said survey sketch relating to March-1950 also produced, which is marked at Ex.D.6 and certified copies of the Gazette Notification dated July 26th, 1894 and 8.6.1950 are marked at Ex.D.7 and 8 and joint survey sketch and survey report of the D.W.6 conducted with the other surveyor for the above said four lands also produced in this case; they are marked as Ex.D.12 and 13. It is also stated that through the above said documents the Mysore Maharaja has handed over the above said suit schedule properties situated in the four lands along with the other lands as mentioned in the Gazette Notification at Ex.D.5 to 8 to the Defence Department; i.e., PRTC 40 O.S. No.27000/2011 of Bengaluru. Defendants have produced the one covering letter and other documents to show the situation and boundaries of the above said acquired land along with other 3 documents, to show that, the said lands were handed over to the Defence Department as per the order of the Commandar Brigadier, which can appear in Ex.D.14 to D.25 in colour photos also. Further stated in cross- examination that he had obtained the authorization by the defendant No.3 to depose in this case and he has been working under the 3rd defendant in PRTC of the defence, since last one year and he is looking after the entire property of the defence situated in the Bengaluru City and further stated that he knows very well about that all the plaintiff of the 3 suits, who have filed a original suit for Sy.No.1 of the Savaralane and Sy.No.42 of the Matadahalli Village with a prayer that to declare them as a owner of the said property and defendant No.1 to 3 may be restrained by granting injunction. D.W.1 further stated that in land Sy.No.42 Petrol Bunk and Shopping Complex are erected and the same are constructed in the land of the defendants coming under the defendant No.1 to 3 and which supervising by the PRTC under the 3rd defendant and a 41 O.S. No.27000/2011 officers of the Bengaluru Rural Asst. Executive Engineer of the Building Division have prepared the sketch and report in this regard and D.W.1 admitted that they have not produced the documents like survey notice and report including the survey mahazar panchanama conducted at the time of making a joint survey under the leadership of the then Tahsildhar of Bengaluru North Taluk in this case. It is also stated that the said documents are not found in their office, if available he goes to produce the same. D.W.1 further stated in his cross-examination dated 1.2.2017 that they have not produced the any survey map and mahazar panchanama conducted in respect of the suit schedule property. Upon perusal of the Ex.D.5 the seal and signature of the office and officer are appearing on it; but it is stated by the D.W.1 that he does not know in the Ex.D.5 whether it is a seal and signature appearing on Ex.D.5 are belonging to the Engineers of Mysore Govt. or a Engineers of Karnataka Govt. or it is belonging to the Central Govt. D.W.1 it is stated that according to Ex.D.5 a land Sy.No.42 of Matadahalli is shown as 2 acres 6 guntas and it was acquired by the Central Govt., and Ex.D.5 discloses that a 42 O.S. No.27000/2011 property of the Mysore Govt., which is coming within the Hebbal jurisdiction of the Bengaluru, is handed over to the defendants; i.e., Defence Department of India. It is also answered that there is a RFA No.693/2007 is filed before the High Court of Karnataka. In the said case, they have produced the Ex.D.5. But, witness voluntaries that he has produced the lamination copies of the above said documents relating to original map which are produced in the above said case before the Hon'ble High Court. It is denied that a land Sy.No.42 measuring 2 acres 6 guntas, and the same is appearing as mentioned in Ex.D.5. It is also stated that he has not produced the documents to show that the said land is handed over by the Central Govt. to the PRTC Bengaluru. In entire cross- examination at page No.18 and 19 he stated about the Gazette Preliminary and Final Notification and a award was paid to the owners of the land. Further he answered that he does not know that how much amount was sanctioned by the land acquisition officers and how much award amount is paid etc., is not stated and admits that Ex.D.6 is produced to show that Mysore Govt. has handed over the properties mentioned in it to the Central Govt. 43 O.S. No.27000/2011 Department of Defense. It is admitted that in the above said document it is mentioned that Mysore Maharaja had handed over the property of Infantry Band. It is admitted that Sy.No.42 of the Matadahalli Village is not mentioned in the judgment of Ex.D.2 and D.9 and in Ex.D.10 and 11 in RTC columns, it is mentioned in column No.9 and 12 of the said RTC column that the lands appearing in the said both the documents is belonging to the Govt. and nowhere written as the said land is belonging to the Defence Department. It is admitted in his further cross-examination at page No.21 that in all the RTC columns it is mentioned that the said land is kept with Bengaluru North Taluk for their use. Further he stated that the land of Savaralane is declared as a land belonging to defense. But, it is admitted that in any portion of the cross- examination as it is not mentioned either in mutation order or RTC as the said property is belonging to Defense land. In further cross-examination of the D.W.1 it is stated that according to Ex.P.18 a Matadahalli Sy.No.42 measuring 5 acres 22 guntas is proposed for Matadahalli Layout and he admits that there is a seal and signature of the Military Officers of JC Nagara have 44 O.S. No.27000/2011 put up on Ex.P.21, it is also admitted that one Subhedhar Bowrilal represented for the PRTC and he put his signature on Ex.P.21 and in Sl.No.1 written as a Lakshmipathi. D.W.1 makes a allegation that Ex.P.21 is the forged documents and a survey map of City Survey Sy.No.42 of Matadahalli Village dated 15.10.2003 is also produced in this case. In the said Survey Map in Sl.No.3 mentioned about the property measuring 2 acres 6 guntas shown with ABCD letters by using black colour is in the possession of their department and another portion of land mentioned with KADEFGHI & J is a property belonging to the Channakrishnappa, Papaiah, Narayanappa and Lakshman, who are the khatha holder of the said property total measuring 3 acres 10 gunta and a 06 gunta mentioned in GKE & F portion, there is shown a road. D.W.1 further answered in his cross-examination that he has produced the petition copy of the plaint O.S. No.355/66 and WS submitted in the said suit including the issues are got marked as Ex.P.23 to P.26 and other documents of O.S. No.1140/82; i.e., plaint, WS and memo including the deposition statement of D.W.1 and a judgment and 45 O.S. No.27000/2011 decree of the above said suit are marked as Ex.P.27 to 31 and suit Sy.No.42/A is shown as 1 acre 9.5. gunta situated at Sulthan Palya, Mattadahalli Village and the said property is a property of Rudhrappa, which are in Sy.No.42 and 41/A and on the Southern side a property of Venkatesh. In cross-examination at page No.28 it is appearing that D.W.1 admitted that 5 acre 22 gunta of Matadahalli Sy.No.42 and remaining 2 acre 6 gunta of the same is handed over to the Defence Department of the India. It is further answered that he does not know the boundaries of the Sy.No.42 measuring 5 acre 22 gunta and he admits that in plaint and WS para No.1 it is mentioned that Matadahalli Sy.No.42 measuring 5 acre 22 gunta and same is got written as belonging to the defendant. D.W.1 further answered that in Sy.No.42 total measuring 5 acre 22 gunta, out of which 2 acres 6 gunta is handed over to Defence Department and he admits that he has not produced any documents to show that above said 2 acre 6 gunta is handed over to Defence Department. Further he stated that the certified copies of the judgment of RFA No.317/89 and O.S. No.1140/82 are produced. The above said judgment of original suit 1140/82 is challenged in 46 O.S. No.27000/2011 RFA No.317/89 in which above said suit was challenged, therein held by the Hon'ble High Court of Karnataka that there is no any link in between the suit schedule property of this suit and a suit schedule property of above said suits. In cross-examination at page No.30 in last 6 lines a specifically stated about the Ex.D.12 and 13, which is challenged by filing a revision petition before the Deputy Commissioner of Bengaluru Urban. It is also stated that in Ex.D.12 and 13 of Matadahalli Sy.No.42 a total measuring 2 acre 16 gunta is mentioned in column No.5. It is further stated that a land of Savaralane Sy.No.1 and a land Sy.No.42 of Matadahalli are also mentioned in the document Sy.No.7 by mentioning a 11 acre 43 gunta, which is shown with a red ink is sold out and also stated about the alleged encroachment as stated in his chief-examination and documents of writ petition about which the same can be seen at Ex.P.32. D.W.1 admitted that in the writ petition the Hon'ble High Court of Karnataka passed a common judgment in all three writ petitions by holding that before disposal of all these 3 suits by the civil courts no any further survey shall be conducted. It is also admitted that in RTC of Sy.No.42 of the 47 O.S. No.27000/2011 Matadahalli Village is shown as measuring 2 acres 16 gunta, coming in the Bengaluru North Taluk within the jurisdiction of the KG Road; but he has stated that no any documents obtained from the concerned office and produced in this case. But, the same is mentioned in MLR of their land and for which he stated that if possible he can produce the same. It is also stated that in the year 1950 in a suit schedule property there were situated a Mangalore Tiles roofed house; later on those were demolished and a ACC sheet house were constructed and all the said houses are coming within the jurisdiction of the BBMP. It is stated that the said houses are constructed by the Mysore Maharaja. In further cross-examination at page No.37 to 43 it is stated regarding a revision petition filed before the Urban Deputy Commissioner, which the documents a notice and petition copies are marked at Ex.P.51 to 56 in O.S. No.26999/2011. In Ex.D.12 and 13 it is mentioned that measuring 2 acres 6 gunta of Matadahalli Village in Sy.No.42 is belonging to Defence Department and later on a 10 gunta is got added and the same is shown in Ex.D.12 and 13, according to the said addition of 10 48 O.S. No.27000/2011 gunta it become 2 acre 16 gunta. Total evidence given in cross- examination of page No.39 to 43 is that a 2 acre 16 gunta of the Matadahalli Village is belonging to the Defense Department. It is also stated that the plaintiff are challenged by filing a writ petition against the joint survey map and joint survey report prepared by the Tahsildhar North Taluk, Bengaluru, and also filed a revision before the Deputy Commissioner, Bengaluru Urban, with prayer to set- aside the above said joint survey map and report by making a prayer that may be ordered for conducting resurvey to disclose the property of the plaintiff and Defence Department. It is denied by the D.W.1 that the suit schedule property is succeeded by the plaintiff and their father from their great grandfather and it is got partitioned in the 1972 in between a grandfathers of the plaintiff and again in the year 2007 a registered partition is taken place in between the plaintiff and his family members; i.e., father and other brothers; accordingly, the plaintiff has obtained the construction permission and constructed the building in the suit schedule property. Thereafter, D.W.1 stated that he has produced the number of documents relating to the above said discussed original 49 O.S. No.27000/2011 suits, and RA and RFA including the khatha extracts of the suit schedule properties, which are at Ex.D.57 to 105. Particularly, D.W.1 stated about Ex.D.70 to 80, therein made entry about the suit schedule properties in MLR kept in their office and also a another MLR produced before the High Court of Karnataka and also D.W.1 stated that notices were issued to the father of the plaintiff under Section 173 of the KMC Act dated 14.3.2003 and a receipt relating to the same are produced; since the said documents were Xerox documents, the same are not marked and a Ex.D.85 to 95 are the RTI letter submitted to Tahsildhar and Special Deputy Commissioner and Appellate Authority of the Deputy Commissioner for supplying the suit schedule property documents are produced and other documents are the certified copy of the compromise petition filed in O.S. No.10582/87 and order sheet of the said suit are marked at Ex.D.97 to D.99 and a property register of RPMB Major Garrision Engineer North Taluk, is produced. He stated that defendants have produced the notification dated 18.5.1893 of the Old Mysore State, which shows that a Savara Parade Ground property of the Bengaluru 50 O.S. No.27000/2011 City was handed over to the Defence Department and another notification dated 26.7.1894 discloses that a imperial service cavalry lines and parade ground of Bengaluru is handed over to the Defence Department and another notification dated 14.6.1899 and dated 29.9.1899 are disclosing about the other properties handed over to the Defence by the Old Mysore Govt. On the basis of the above said documents which are marked at Ex.D.1 to D.105; D.W.1 is admitted that their Defence Department Estate Officer is the custodian of the MLR and he is making a supervisation of the defence land, which are mentioned in the MLR situated in Bengaluru City and a copy of the MLR will be given to his office also. It is further stated that if any illegal activities started about the defence properties he has to bring to the notice of the Estate Officer immediately; but, he has stated that he has no power to make any correction and also making complaint to anybody in this regard, without obtaining the permission of the Ministry of Defence. It is denied that though he is having a such knowledge he has made a false complaint about the same as per Ex.D.85 to the Hon'ble High Court of Karnataka and he admitted 51 O.S. No.27000/2011 that Estate Officer has not given a authorization as per Ex.D.1 to him; but he stated that the same is given by the Parachute Commandant and he admits that he has not filed any case either before the Karnataka High Court or a Deputy Commissioner, Urban, Bengaluru, by challenging the Ex.P.21 and P.22 and he denied that colluding with his office staff he has prepared the Ex.D.96 & 97. He admits that Garrision Engineer is a officer of their defence department and he has prepared the map of the Military Property of Bengaluru City as per Ex.D.105. When the counsel for the plaintiff suggested to D.W.1 in the cross- examination that on 14.5.1892 there was a circular of the Mysore State Govt. except the Deputy Commissioners no other officers are having a authority for starting acquisition proceedings of the any lands coming under the Mysore Govt. For which, D.W.1 answered that a power of acquisition was withdrawn from the Deputy Commissioner and it was entrusted to District Land Acquisition Officer. It is admitted that according to the order of Mysore Govt. except the Deputy Commissioners no other officers had power to acquire the any 52 O.S. No.27000/2011 land coming under the Mysore Govt., for using of the same to any public purpose.
22. Upon perusal of the cross-examination of D.W.2 a Baljith Singh and cross-examination of the D.W.3 Banwarilal are relating to the seal and signature used upon the Ex.P.21 and 22. He admitted that whenever a office will be directed to change the seal of their office they will go to change the seal of their PRTC office and from the year 1995 till today occasionally the seal was changed by their office. Further he stated that a signature appearing on Ex.D.28 as it is belonging to D.W.3 Subhedhar Banwarilal; but, the signature which is in front of his name is not a signature of the Banwarilal. It was got confirmed by comparing with a signature of Banwarilal appearing on Ex.D.28 & 29 in which their Commandant has made a complaint about the Ex.P.21 & 22. Therefore, he compared the seal and signature of their office along with Ex.P.26 before coming to give evidence in this case. He admits that signature appearing on Ex.D.28 is belonging to the Banwarilal, which is marked at Ex.D.28 (a); but, signature appearing on Ex.P.22 is not the signature of Subhedhar Banwarilal. 53 O.S. No.27000/2011 The style of signature appearing on Ex.D.35 and Ex.D.28 (a) are different. It is further stated that when the above said difference appeared and came to the knowledge of their Deputy Commandant ordered to compare the signature of the Banwarilal appearing on Ex.D.28 and D.30 along with Ex.P.21 and P.22 and to submit the report. It is also stated that their Deputy Commandant verified the said signature and got confirmed that on Ex.P.21 and 22 a seal and signature of D.W.3 Banwarilal are manipulated; but, he stated that a seal of the Thahasildhar office appearing on Ex.P.26 may be belonging to the office of the Bengaluru North Taluk Thahsildhar. Further he stated that the seal of their PRTC office appearing in Ex.P.24 is not belonging to PRTC office. D.W.3 stated in his cross-examination that he never seen the Ex.P.21 before his retirement. When near about 15 to 20 days back PRTC office requested to him to give his evidence, then he verified the document Ex.P.21, which is a survey notice issued by the survey department and there is a seal put up which is in Kannada language. Therefore, he cannot say the name of the persons who have signed to it. He stated that before coming to give evidence in 54 O.S. No.27000/2011 this case he discussed with D.W.1, it is stated that he does not know Ex.P.21 which is a survey notice issued by the survey department of the Karnataka Govt., to their office before attending the survey dated 9.8.2010. D.W.4 and D.W.6 have fully supported in their cross-examination regarding that the joint survey committed by the D.W.6 along with the officers of the survey department and they have stated in their cross-examination that in the said survey there is appeared a encroachment in Sy.No.1 of the Savarline and Sy.No.42 of the Matadahalli Village, which were acquired by the Gazette Notification of the Mysore Govt., and handed over to the Defence of India; i.e., to the defendants Military of Bengaluru City. Both have stated that a neighbouring land owners encroached measuring 11.35 guntas in Sy.No.1 and there is also a erected a petrol bunk. It is further stated that in the North-West corner of Sy.No.42, 16.44 gunta is encroached and in Sy.No.1 North-East corner a 6 gunta is encroached and further stated that a 15 gunta is encroached in Sy.No.8/1 of the Kalabyrasandra towards Eastern side. Both the witnesses D.W.4 and 6 categorically 55 O.S. No.27000/2011 denied that the said survey is not conducted by the D.W.6 along with the team of joint survey as per the survey rules and the same are prepared to help the defendants as per their request. But, they have stated that the original survey map and report and copy of the survey map and report dated 9.10.2010 is not available in both the office. D.W.4 has given a opinion that it might have produced before the Hon'ble High Court in writ petitions. It is not necessary to discuss a detail cross-examination of the D.W.5 Satheesh in detail, who is working under defendant No.2, it is nothing but a same evidence and same answers are given as to that of D.W.1, in cross-examination of the plaintiff counsel relating to the suit schedule property by relying upon the MLR by stating that defendant No.2 is the custodian of the records of the Military Lands and he will go to make any orders for making the entry and deleting the entry of the Military land in the MLRs.
23. Upon perusal of the above discussed cross-examination of both the witnesses and a careful consideration of the documents produced by the both parties. It is appearing in this case that the plaintiff has been claiming the suit schedule property bearing 56 O.S. No.27000/2011 BBMP No.24 and 25, new Khatha No.24 of Kavalabyrasandra measuring East-West: 50 feet, North-South: 60 feet consisting of buildings with 4 shops and 2 floors residential buildings consisting of 6 houses is to be declared as he is the absolute owner and in possession and enjoyment of suit schedule property and granting permanent injunction restraining the defendants and their agents and etc........... from interfering into peaceful possession and enjoyment of the suit schedule property by stating that original Sy.No. of the suit schedule property was standing in the name of his ancestors; i.e., his great grandfather Muninagappa and it was partitioned in the year 1972 as per Ex.P.16 in between his grandfather Narayanappa and his other brothers, who are the sons of the Muninagappa. It is further case of the plaintiff is that the properties including the suit schedule property and other properties of their family came to the grandfather of P.W.1/plaintiff, it was again got partitioned in the year 2003 as per Ex.P.2 in between his father and brothers of his father. It is also case of the plaintiff that in the properties came to his father Govindaraju is again got partitioned in the year 2007 as per Ex.P.5 in between plaintiff 57 O.S. No.27000/2011 father Govindaraju and plaintiff's brother G.Shravana under the registered partition deed. Thereafter, khatha of the property has been transferred in the name of plaintiffs in respect of suit schedule property in the register of the BBMP and he has been paying the tax regularly and he is in lawful possession and enjoyment of the suit schedule properties including the constructed building situated in it. In support of above said his claim, he has been relying on the documents Ex.P.2 to P.20. Plaintiff has been opposing the case of the defendants by stating that defendants have not produced original acquisition proceedings held in respect of the properties in question to show that according to Section 4 (1) of the Preliminary Notification and 6 (1) of the Final Notification and a award passed under Section 11 of the Land Acquisition Act prevailing in the Mysore Maharaja Govt., and also no documents produced to show that the possession of the suit schedule properties handed over to the Defence Department; i.e., to the defendants for the use of the Military of the Bengaluru City and also no documents produced regarding a compensation was paid to the owners of the suit schedule properties. In this regard a contention of the counsel for 58 O.S. No.27000/2011 the plaintiff is that, no such any acquisition proceedings are taken place by the Mysore Maharaja and suit schedule properties are not handed over to the defendants. The answers given by the D.W.1 & 5 in this regard are negative. Further it is argued by the plaintiff counsel by stating even in the written statement also not stated about the above said matter; therefore, the documents Ex.D.5, D.73 and D.74 are not considerable for fulfilling the claim of the defendants about the suit schedule properties. It is further argued that Ex.D.5, D.12 and D.13 including the above said documents are rebutted in the cross-examination of the defendants' witnesses. It is also argued that MLR produced by them are very contradictory to the MLR called for from the High Court of Karnataka; i.e., a documents, which are exhibited as Ex.D.68 to 70, which are disclosing that the said entries are got corrected by the defendants as per their whim and fancies to get make a convenient to grab the property of the plaintiff, which discloses that there is a incorporation of 2 acres 16 guntas, instead of 2 acres 6 gunta of the Matadahalli Village, which was the earlier claim of the defendants in earlier proceedings. Therefore, the defendants cannot claim and 59 O.S. No.27000/2011 come with a new plea of 2 acres 16 guntas in the absence of any of transfer of land from the Govt. or under the acquisition of land. Therefore, it appears that the very claim of the defendants against the plaintiff in respect of the suit schedule property is a false and baseless and claiming on the false documents, which are categorically rebutted in the cross-examination of the defendant witnesses. In support of the case of the plaintiff, advocate for plaintiff relied on AIR 1961 Bombay Page 169 (Ramaji Batanji v/s Manohar Chintaman and others). In Head Note (B) held that; According to Section 13 of the Indian Evidence Act - Judgment in another suit not inter parties - Relevancy of which speaks that, the findings of the fact arrived on the evidence in one case are not a evidence of the fact in another case. The said decision was given by following the Supreme Court decision and also privy council decision AIR 1956 SC 305 and AIR 1937 PC 69 and AIR 1929 PC 99. Further he relied on AIR 1973 Patna 206 (Kandan Soren and others v/s Jitan Hembro), in which Head Note- C given a opinion by the lordships of the Patna High court that, A statement given in the final report on settlement operations 60 O.S. No.27000/2011 stating on what basis entries were made in records of rights are a more authentic and reliable, than the statements made in District Gazetteers. Further relied on AIR 1954 Crl.L.J. 1479 in the case of Mathuradas v/s State in Head Note-B held that, According to Evidence Act (1 of 1872) Section 57 and Section 78, wherein held that where court is required to take judicial notice it can refuse to do so unless the document essential for taking notice thereof is produced; i.e., to say in a case like this, state Gazette and also relied on 2005 (3) SCC 207 in the case of Sanjay Gera. In Head Note-B held that, Rights of parties cannot be determined just on the basis of the any other judgment on the question of fact, which case is to be specifically pleaded and proved by the leading proper evidence. (2005) 13 SCC 389 in case of Om Prakash v/s Kimtu and another in Head Note-A held that, According to Order XX Rule 4, Order VI Rule 1, Order VII Rule 7, Order VIII Rule 1, Order 18 Rule 3 and Section 9 - Determination of rights of parties - Basis for - Decision in case, held, it cannot be rendered only on the basis of judgment in another case which is not a conclusive between the parties - It 61 O.S. No.27000/2011 is a obligatory on the court to consider materials on records to arrive at its conclusions as per Indian Evidence Act 1872 - Section 43 - Applicability and further he relied on citations (2012) I SCC 476 (Union of India and others v/s Ramesh Gandhi), in which it is held in Head Note-B that, Practice and Procedure - Void/Voidable/Illegal/Non est/Null judgment or order or decree - Judgment obtained by playing fraud on Court - What amounts to - Held, judgment obtained by non- disclosure of all necessary facts tantamount to judgment obtained by fraud - such judgment is nullity and it is to be treated as non est by every court - As per Sections 11, 33 and 47 of CPC and Section 44 of the Indian Evidence Act and relating to the point of secondary evidence relied on 1960 Crl.Law.Journal Page 634 in the case of Janu Khan and others v/s State - Patna High Court. In Head Note-B of the said citation it is held that, As per Section 65 and 78 of the Indian Evidence Act; i.e., a Govt. Notification - Secondary evidence of
- Admissibility - It must be certified by the head of the department and also relied on Manupatra Decisions- 62 O.S. No.27000/2011 MANU/KA/2538/16 (Union of India & others v/s Alla Bakash and other) in which it is held that, Plaintiff had produced the several documents to show their possession of entire suit schedule property - No material that property belongs to Defence Department - Thus de facto possession by plaintiffs could not be held unlawfully - Additional evidence produced by the plaintiff could not prove that suit schedule property was a part of Defence land - Therefore, the trial court was justified in granting permanent injunction to the plaintiffs on the basis of the de facto possession of the suit property - Appeal dismissed (92) and (93). The above said citations are cited by the counsel for the plaintiff for the reason of that some of the uncertified documents and a self-attested by the defendants are produced by the defendants in this case. In view of that the above said citations drawn to the notice of this court; with a contention that the said documents like notifications, which are uncertified to the Head of the Department cannot be taken into consideration. Total his arguments is that as above stated Ex.P.2 to P.20 supports to the 63 O.S. No.27000/2011 case of the plaintiff. Thus, he prays to decree the suit as prayed for.
24. On the other hand, a argument of the defendants' counsel is that through the documentary evidence Ex.D.1 to D.105 and examining witnesses D.W.1 to 6 defendants have rebutted the case of the plaintiff by stating that the very claim of the plaintiffs about the suit schedule property measuring 17760 sq ft (17.76 gunta) of Khatha No.24 of Kavalabyrasandra, Ward No.95, Dinnur Sulthanpalya Main Road, Bengaluru, is a part and parcel of Sy.No.42 of the Matadahalli Village measuring 2 acres 16 guntas is coming in which the defendants property 2 acres 16 guntas of the said Sy.No., claiming by the plaintiff. According to the further case of the defendant the Ministry of the Defence constitute a Board of Officers which met on 26th February 1955 for the purpose of preparing the schedule of boundaries, areas, locations and descriptions of the sites belonging to Ex-Mysore State properties situated at Bengaluru and Mysore. As per the order of the Board plans were prepared and pillars were erected in the Defence property measuring 613 acres 38 guntas by numbering 1 to 90 sites 64 O.S. No.27000/2011 which the proceedings was signed by the President of the Board on 15.3.1955. It is also case of the defendant that since then total measuring 613 acres 38 guntas of land including the land in Sy.No.42 of Matadahalli which is claiming by the plaintiff as a suit schedule property become deemed possession and enjoyment of the defendants and the same vests with the Govt. of India, Ministry of Defence and there is a allegation against the plaintiff that the plaintiff have made a encroachment of the defence land by plaintiff in Sy.No.42 of Matadahalli and dispute was taken to the Director of Land Records by issuing a notices to the concerned parties including the plaintiff and carried out the survey of the land Sy.No.42 of the Matadahalli Village, when it is came to the notice to the survey authority and prepared a joint survey sketch and report by mentioning the encroachment of the plaintiff in a defence land, when the plaintiff filed writ petition. Further it is case of the defendants that plaintiff's cousin brothers namely Smt.Lakshmamma and Paddanna had filed a suit O.S. No.15802/2001 for seeking title over the land measuring 2 acres 16 guntas by alleging that it is encroached by the defendants, it was 65 O.S. No.27000/2011 disposed on 3.12.2009 giving injunction against the defendants only to their land in Sy.No.41/1 and dismissed their claim over the Sy.No.42 of Matadahalli Village by giving a finding that the possession of the said land measuring 2 acres 16 guntas of Sy.No.42 is with the defendants. Further it is also case of the defendants that along with the above said property, the defendants have acquired the other properties camping grounds of imperial service lancer regiment on 7th March 1912 vide Land Acquisition Act, 1894 as mentioned in Gazette No.966-169-08-45 produced by the D.W.5 and confirmed by the D.W.6; about which mentioned in para No.1 in survey sketch marked as Ex.D.12 and D.13 and some other unmarked documents produced by D.W.5. It is a further case of the defendant that according to Article 205 of the Indian Constitution, wherein discussed about the succession to property assets, rights, liabilities and obligations given to the Ministry of India. Even in this case also the defendants of this suit by taking the help of the said provision of the said constitution and according to Ex.D.6, which is a correspondence taken place in between plaintiff and defendant in between Central Govt. and State Govt. 66 O.S. No.27000/2011 for transferring the assets including land and buildings are merged with the Union of India by handing over the same to the Defence Ministry of Central Govt. by the State Govt., as powers given and specified in Part-B of the I-Schedule provided under Article 295 of the Indian Constitution. In total, defendants tried to convince to this court about the Gazette of 1950 of the Govt. of Mysore and Govt. of Mysore General and Revenue Department order, by contending that the entire Administrative Control of the Mysore State Troops, except the Non-Indian State Forces Units viz., his highness the Maharaja Own Infantry and Maharaja's Bodyguard a portion of general transfer company and the Mysore Infantry Band was transferred to the Indian Army Authorities with effect from 1st April 1950. It is further submitted in further argument by the defendant advocate that as above stated when the Sy.No.42 of the Matadahalli and Sy.No.1 of the Savarlane are transferred and merged with the Union of India to the Defence Department, which will supports through the Ex.D.5 and Ex.D.12 and 13, and MLR Ex.D.68 to 70, which are a supported with the evidence of D.W.1 and D.W.5 of the Defence Department. Then the question of 67 O.S. No.27000/2011 claiming the suit schedule properties by the plaintiff on the falsely created documents with some other authority is illegal and plaintiff is not entitled for the suit reliefs about the suit schedule property. The counsel for the defendant vehemently argued that through the above said documentary evidence and oral evidence, it is placed before the court that plaintiffs have no authority over the suit schedule property, since it is a part of land assets constituting an area of 613 acres 38 guntas handed over by the Mysore State to the Indian Army, which covers the villages Savarlane, Matadahalli, Firing Range, Water Works and Kavalabyrasandra, Bengaluru North Taluk, which can be seen through the Ex.D.73 and D.74. It is also stated that the land Sy.No.42 measuring 2 acres 16 guntas of Matadahalli Village and land measuring 373 acres 33 guntas of Sy.No.1 of the Savarlane Village are belonging to the Indian Army/Ministry of Defence, which will supports with Ex.D.72 and MLR entries, which is appearing Ex.D.68 to D.72, which are disclosing that the suit schedule property, are included in the above said Sy.Nos. as they are belonging to Defence and the said properties coming within the area of the above said total 68 O.S. No.27000/2011 measurement of the Sy.No.1 of the Savaralane and 42 of the Matadahalli Village handed over by the Mysore State to the Defence of India; but, the plaintiffs are created a some documents and falsely claiming as the same is relating to their property. He has further argued that a Girrison Engineers Sketch Ex.D.105 also discloses about the building being present at Sy.No.42 of Matadahalli Village and Ex.D.5 discloses about the possession of the defence over the above said suit schedule survey numbers that the above said land of Matadahalli Village and Savaralane Village, which are in possession of the defence after handing over the same by the Maharaja of State of Mysore. Now the same are with the Defence Ministry of Union of India. But, the plaintiff are claiming the suit schedule properties out of the above said Sy.No. of Matadahalli Village 42 on the false and created documents Ex.P.2 to P.20 colluding with the Revenue Authority and other authorities. Particularly a argument of the defendants' advocate is that he has relied on citation in Civil Appeal No.1374/2008 in the case of Union of India v/s Ibrahim Uddin and others in which Supreme Court of India citations it is held that Military Land Register is an 69 O.S. No.27000/2011 important land revenue public document maintained by the Defence State Office as per the Rule-3 of the Cantonment Land Administration Rule 1924 and also relied on a another citation of our own High Court of Karnataka in RFA No.699/2002, Uol v/s Azmathulla Mekhri case and (2009) 10 SCC 84 - Rejavatu Builders and Developers v/s Narayanaswamy and sons and other cases, wherein held that, Military Land Register is a important revenue document, which can be considered the land mentioned in the document of Military Land Register as a document for the Military land maintained by the Defence of Union of India. On the basis of the said argument and citations, the counsel for the defendants submits a argument that the suit of the plaintiff may be dismissed with heavy costs.
25. Plaintiff has produced the Ex.P.3 & P.4 a tax paid to BBMP, Asst. Revenue Officer, about the property No.24 for the year 2005-06 and 2007-08 with PID No.95-34-25 by the N.Govindaraju. Plaintiff has produced the letter written by the BBMP to the Govindaraju by intimating that on the basis of the khatha of property No.24, Dinnur Main Road, Sulthanpalya, Ward 70 O.S. No.27000/2011 No.95, which is measuring 146 x 60 in total 8,760 sq ft is transferred in the name of minor guardian of the plaintiff Shashank; i.e., to his father Govindaraju. Further he produced the another tax paid receipt of the same property in the year 2009, which is marked at Ex.P.6 and Ex.P.7 also relating to the same property; a tax is paid Rs.18,784/-. Ex.P.8, P.9 also a tax paid receipts relating to the property No.24 of the Kavalabyrasandra standing in the name of plaintiff G.Shashank for the year 2010-11 & 2011-12. Ex.P.10 is letter written by Shashank to the Defence Estate Officer, by requesting that to furnish the details of the right of the Defence Department having over the property bearing BBMP No.24 and 25, khatha No.24 of the Kavalabyrasandra, Ward No.95, and also intimated that the said property he got under the registered gift deed dated 1.7.2009 and further requested that to supply the acquisition right, if any of the defendants department and for making direction to PRTC not to trespass in his property illegally without production of the details of the Defence Department in respect of the said property. Plaintiff produced the Ex.P.11 to 14 colour photos to show that a buildings are constructed in the suit 71 O.S. No.27000/2011 schedule property. Ex.P.15 & 15(a) are the certified copy and a translation copy of the sale deed dated 1.3.1956 executed by wife of one Gangappa S/o.Ayyanna by name first wife Venkatamma and 2nd wife Lakshmamma and their children for a sale consideration of Rs.1,100/- in respect of land Sy.No.41 - Resurvey No.42 of the Matadahalli Village, measuring 3 acre 9 gunta out of measuring 6 acre 17 gunta bounded by East: Military Property; West by: Water Channel, North by: Irrigated Land of one G.R.Byappa Rudhrappanavar, South by: A land of Venkataswamappa Jolanayakanahalli. Ex.P.18 in O.S. No.26999/2011 is a mutation order passed by the Tahsildhar, Bengaluru North Taluk about the properties mentioned in the above said Ex.P.15 & 15(a) by transferring the same in the name of purchasers and also produced the Ex.P.24 a RTC produced in O.S. No.26999/2011 of Sy.No.42 Matadahalli Village measuring 5 acre 22 guntas standing in the name of Papaiah, S/o.Muninagappa and Narayanappa, S/o.Muninagappa for the period of 73-74 to 77-78, which will discloses that the above said persons name mentioned in column No.9 and 12 of the RTC by stating that they are the 72 O.S. No.27000/2011 owner and possessor and in cultivation of the said property. Plaintiff has produced the Ex.P.18 a Gazette Notification No.HMA 96 MNJ 76, dated 25th January 1977 of Municipal Administration Statement got published by the CITB by acquiring the Sl.No.1 to 9 lands of the respective persons mentioned in the said column will discloses that in Sl.No.10 of the Notification mentioned that M.Doreswamy Bin Muniyellappa, site owners Venkataswamappa Bin Muniyappa, Kempaiah Bin Muniyappa of Sy.No42 of Matadahalli Village, 5 acre 22 gunta land was proposed as the same is required for acquisition and formation of the layout and in the said Gazette Notification, it is further noted that the same is withdrawn from the proposed acquisition, which was notified vide Notification No.5.MNJ.74 dated 25th June 1974 and published in Mysore Gazette Part-III dated 18th July 1974 in page No.1864 to 1872. As above discussed, the further plaintiff stated that the suit schedule Sy.No. is continued to the family of the plaintiff's great grandfather as the same is purchased by them through their original owners and later on it is succeeded by the 73 O.S. No.27000/2011 grandfather, father of the plaintiffs and plaintiff and his brothers as relied on the document Ex.P.16 and Ex.P.2 & 5, which the suit schedule property fallen to the share of the father of the plaintiff and plaintiff and his brothers through the registered partition deed dated 8.6.2007 and other certified copies like khatha extract, khatha certificate and tax paid receipts are disclosing that site No.22 to 25 situated in Matadahalli Village coming in Ward No.95 of the BBMP, Bengaluru, which are adjoining to Dinnur Sulthanpalya Main Road; i.e., 3 acres 27 guntas of Sy.No.1 of Matadahalli Village, which is mentioned as item No.5 and 7 acre 7 gunta of the Byrasandra Village in Sy.No.70 and site No.20, 21 of Sy.No.43 of Matadahalli, which are measuring East-West: 40 feet and North- South: 60 feet and item No.I a portion of Sy.No.42 Matadahalli Village coming in Ward No.97 of BBMP measuring East-West: 73 feet 1.5 inches and North-South: 115 feet, which are mentioned in A-schedule of the Ex.P.5 are came to the N.Govindaraju, when the family partition taken place in between himself and his brothers and in the another partition as per Ex.P.5. In the said partition deed of Ex.P.5 in Page No.10 to 20 mentioned that site No.22, 23 74 O.S. No.27000/2011 situated in Matadahalli, Sy.No.42, and others properties mentioned in B-schedule property is given to the plaintiff's brother G.Shravan and C-schedule properties along with the suit schedule property shown at page No.16 to 20 of Ex.P.5 in Sl.No.4 as suit schedule property bounded by East: Remaining property, West by:
H.D.Devegowda Road, North by: Property No.25, South by:
Property of others, East-West: 50 x North-South: 60 ft., were given to the plaintiff G.Shashank, who was a then minor and under the guardianship of his own father Govindaraju. Plaintiff has produced the tax paid receipts, which are at Ex.P.6 to 9 relating to the property No.24 of Kavalabyrasandra Village, Ward No.95 of BBMP (a part and parcel of Sy.No.42 of the Matadahalli Village) produced therein mentioned the name of G.Shashank, minor under the guardianship of his father Govindaraju, a plaintiff is owner and possessor of the suit schedule property and also produced the copy of the settlement deed and other documents in O.S. No.26999/2011. Through the said documents it is apparently appearing that suit schedule property bearing BBMP No.24 & 25, New Khatha No.24 of Kavalabyrasandra, Ward No.95, Dinnur 75 O.S. No.27000/2011 Sulthanpalya Main Road, now which will be called as a H.D.Devegowda Road, measuring East-West: 50 feet, North- South: 60 feet, consisting of building with shops and two floors residential building consisted of 6 house is in possession and enjoyment of the suit schedule property as a owner of the same. In order to rebut this above said documentary evidence of the plaintiff and oral evidence of the P.W.1 detail cross-examined by the advocate for the defendant; but not rebutted the same, no single admissions are given in the cross-examination as the said schedule property is belonging to the defendants and it is encroached by their family as alleged by the defence; i.e., the defendants of this suit. Now, in order to come to the conclusion about the case of the plaintiff whether the plaintiff is succeeded the suit schedule property under his family partition and he is owner and possessor of the suit schedule property or it is a property encroached in the defence land of the defendants as taken a defence in all three suits is to be scrutinized. With regard to said point, if this court when starts to scrutinize the documents of defendants, it appears that Ex.D.5 is a plan showing the boundaries of assets of the Ex- 76 O.S. No.27000/2011 Mysore State Force in Hebbal, Bengaluru, taken over by the Central Govt. of India and Ex.D.7 is a Gazette Notification No.897-R105 in continuation Notification No.18488-R23A2 dated 4th May 1893 of the Mysore Govt., wherein mentioned that Sy.No.42 of Matadahalli Village belonging to one Muruga Shetty is acquired for the purpose of using for Imperial Service Cavalry Lines and Parade Grounds, Bengaluru, which is total measuring 9 acre 87 guntas bounded by East: Boundaries of Kavalabyrasandra, South by: Sy.No.45, West by: Portions of Sy.No.42 and 43, North by: Sy.No.41. Defendants have produced the RTC Ex.D.10 and D.11 Endorsement issued by the Tahsildhar North Taluk relating to land Sy.No.1, of Savaralane, discloses that which is total measuring 3 acre 73-33 gunta is in possession and occupation of the Govt. as a owner of the said land. Ex.D.12 and D.13 are the joint survey sketch and report relating to the Sy.No.1 & 42 of the Matadahalli Village and Sy.No.3 and 8/1 of Kavalabyrasandra Village, in which it is mentioned in column No.7 of the report that 11.45 guntas in Sy.No.42 of the Matadahalli Village and in Sy.No.1 of Savaralane, which belongs to the defence land is 77 O.S. No.27000/2011 encroached and in column No.8 it is mentioned that there is a encroachment of 16.44 guntas in Sy.No.42, which is belonging to defence going in North-Western corner it is noted with colour. In Sl.No.9 mentioned that 6 guntas of Sy.No.1 belonging to Defence Land in North-East corner is encroached. Supporting to that encroachment with a allegations that the plaintiff and their family members are encroached in the defence land by claiming as the same is suit schedule property and succeeded by their ancestors.
The defendants have also produced the Ex.D.14 to 24 photographs and Ex.D.25 C.Ds., by showing that the plaintiff have illegally encroached in the defence land and constructed a alleged petrol bunk and buildings etc. It is very unfortunate to say that both the plaintiff and defendants have produced the some other documents unnecessarily and also examined the D.W.2 and 3 to show the conduct of the plaintiff that the plaintiff is a person for creating the false documents by stating that in the MLR, which is marked as Ex.D.68, wherein mentioned in Sl.No.52 of the MLR as land of Savarline Sl.No.1 is shown as 373 acre 33 gunta and in Sl.No.2 Sy.No.16/1 of Matadahalli is shown as a 0 acre 33 guntas and in a 78 O.S. No.27000/2011 same Sl.No. 6th property of Matadahalli Village is shown as a 2 acres 16 guntas. This above said Ex.D.68 is the true copy obtained by the Defence Department and produced in this case and also defendants have produced the another document a certified copy of the above said MLR obtained on 13.12.2010 obtained by the office of the Hon'ble High Court of Karnataka, which is unmarked one; therein appearing a entry made in 1st para, which covers in column No.2 to 4 measuring 613 acres 38 gunta and measuring, 33 guntas at Sl.No.1 are under the control of the QMC Army commanding for extension range; against which there is made a entries that (i) Sl.No.1 Savaralane is measuring 373 acres 33 guntas, (ii) Matadahalli Sy.No.16/1, 0 acre 33 gunta, and in the column No.2 6th property Sy.No.42 of the Matadahalli shown as 2 acres 6 gunta. It is a allegation of the defence department that the plaintiff has made a correction in the MLR, which is produced before the Hon'ble High Court colluding with the officials of the Hon'ble High Court of Karnataka as by unlawfully making correction to the extent of 373 acre 33 guntas of Sy.No.1 of the Savarlane as mentioning 328-33 guntas and also made a correction about the 79 O.S. No.27000/2011 property of Sy.No.42 of Matadahalli measuring 2 acres 06 gunta as 2 acres 16 guntas. Even a total land of 613 acre - 38 gunta is also made a correction by over writing as above stated; but, the contention of the plaintiff against the defendants are that they have not made any corrections as alleged against them, and stated that the Military Officers of the Defence Department themselves have got corrected in the MLR entries as becoming a convenient to them whenever desired to do so without obtaining the order of the Ministry of the Defence and their higher officer. Though there is a allegation of the defendants regarding the tampering of the documents relating to the survey authority and also a MLR entries against the plaintiff and made a allegation against the officials of the Hon'ble High Court of Karnataka by writing a complaint to the Registrar General as per Ex.D.85 with a prayer to make enquiry and take necessary action against the concerned officials, which are still pending and also to substantiate the said allegations against the plaintiff, the defendants examined to the witnesses D.W.2 and 3 by stating that the seal and signature of the PRTC office also are got prepared by misusing and manipulating the false seal and signature 80 O.S. No.27000/2011 put on a survey notice issued to their department etc., discloses the same as they are served upon the department. The said examination of the D.W.2 and 3 a some of the documents placed before this court against the plaintiff with certain allegations regarding the tampering of the documents of the survey authority and MLR are related to the concerned department to make enquiry and to take necessary action against the concerned persons, if the complaints were made before the respective authority against the persons (may be plaintiff or any officials of the defendants), who have tampered the document. The said documents and evidence of the D.W.2 and D.W.3 can be taken into consideration as a corroborative evidence in connection to the matter in dispute not as a conclusive evidence to decide the main relief of the parties. The question before this court is that, whether the allegation made by the defendant against the plaintiff that the plaintiff and his family members have made a corrections in the MLR and other revenue documents colluding with the concerned officials and encroached in the suit schedule property and therein constructed a house buildings, petrol bunks etc., is required, to substantially to be 81 O.S. No.27000/2011 proved by the defendants as contended in their WS and Ex.D.12 and 13 a joint survey report and a joint survey sketch, which the survey conducted in the leadership of the then Tahsildhar, Bengaluru North Taluk/Asst. Commissioner of Chikkaballapura, Shivaswamy and other surveyors. It is very pertinent to note that D.W.4 and D.W.6 Shivaswamy have categorically stated about the allegation of encroachment made in suit schedule property against the plaintiff and their family members by stating that they have encroached in Military Defence property; but, upon perusal of the Ex.D.12 it appears that in Sl.No.2 of the notes of survey report, it is mentioned that a extent of Sy.No.1 of the Savarlane and 4 and 8/1 of the Kavalabyrasandra and Matadahalli mentioned in column No.2 with table including the measurement of the said lands. In column No.7 mentioned that in Sy.No.42 of Matadahalli and 1 of Savaralane appeared on the spot, there exists a petrol bunk, which lies in the jurisdiction of the defence land. In note No.8 mentioned that there is an encroachment of 16.44 guntas in North-Western corner. A another page of the same survey is marked at Ex.D.13, which discloses the survey measurement of Sy.No.1 and 42 of 82 O.S. No.27000/2011 Matadahalli and 3 and 8/1 of Kavalabyrasandra Village, Kasaba Hobli, Bengaluru North Taluk. In column No.2 and 5 wherein shown the box by mentioning the village names, survey numbers, and extension of the both Ex.D.12 and 13 are same. In Note No.7 to 9 of Ex.D.13 mentioned that to the extent of 11.43 gunta in Sy.No.42 of Matadahalli Village and 1 of Savaralane belongings to the defendant. In other words on the spot exists a petrol bunk, which is of the extent of 11 acre 43 gunta lies in the jurisdiction of the Defence Department. In Head Note-8 shown that there is a encroachment of 16.44 guntas in Sy.No.42, which is belonging to Defence in North-Western corner. In column No.9 it is shown that there is a encroachment of 6 guntas in Sy.No.1, which belonging to defence along North-Eastern corner and in Note No.8 mentioned that the Sy.No.8/1, which belongs to the defence there is a encroachment along its Eastern border to the extent of 15 gunta and supporting to the said allegations produced the Ex.D.14 to 25 a photographs and CD. In the cross-examination of the both D.W.4 and 6 of the plaintiff advocate, both the witnesses have stated that the original joint survey sketch and report are searched in their 83 O.S. No.27000/2011 office; but, not available. To that extent D.W.4 stated that probably might have produced in the writ cases pending before the Hon'ble High Court of Karnataka. In further cross-examination of the plaintiff advocate D.W.6 stated that before conducting the survey he himself and other surveyor of the Survey Department, Bengaluru, had carried the Aakar bandh and settlement records along with the RTCs of the lands including the previous survey records relating to the above said lands. But, no any such documents produced in this case along with Ex.D.12 and 13. It is also important to note that whenever survey will be conducted by the survey authority a compulsory survey panchanama will be conducted and the signatures of the independent witnesses and also the persons of the concerned land owners will be taken on the mahazar and there will be written a details about the procedure of the survey adopted by them for conducting the same; i.e., from which property in dispute is started to survey by them and ended to which property of the neighbourers who are disputing the property of the certain person. In the present survey report nothing stated that in Sy.No.42 of the Matadahalli Village is being in total 84 O.S. No.27000/2011 measuring 5 acres 22 guntas, after handing over the 2 acres 6 guntas out of 5 acres 22 guntas by way of acquisition from the Mysore Govt. to the Defence Department, how much area of the remaining property out of 5 acres 22 guntas is situated and from which corner of the plaintiff property is started to survey and wherein it was ended and accordingly the property of the defendants measuring 2 acres 6 guntas of the same survey number also there is not given any such details and the details of the survey found on that day as above stated on the spot will be noted. In this case, no such survey mahazar panchanama and details of the survey report with details as above discussed is not produced by the defendants or plaintiffs in this case. Therefore, at this juncture, it is very impossible to come to this court whether there is a real encroachment is made by the plaintiff in the lands of the defendants as made allegations against the plaintiff or indeed it is a self-owned property of the plaintiff as obtained in partition deed of the year 2007 and with other documents produced supporting to his claim. In order to come to correct conclusion whether the said land in dispute is a belonging to the defence department or plaintiff; it is 85 O.S. No.27000/2011 required to conduct once again a impartial survey by the survey department on the representation of the parties to the suit in the presence of independent panchas and concerned parties of the suit including the neighbouring land owners by carrying the necessary documents from the revenue and BBMP department to the spot and also collecting the necessary documents of the both parties to the suit. Thereafter, the joint survey is to be conducted and same is to be reported to the ADLR, Bengaluru Urban, and concerned Tahsildhar and the said document shall be preserved in the concerned office to supply the certified copies of the same to the parties when they will be required for them. When the said survey report and survey sketch which will be conducted in future as made a observation by this court, then this court can give a correct findings about the ownership of the parties in suit in respect of suit schedule property. Unless and until get survey the property and get confirm regarding the property in dispute as belonging to whom, the documents produced by the both sides for claiming their ownership over their suit schedule property cannot be considered as a legal documents and a substantial documents for declaring the 86 O.S. No.27000/2011 ownership of the concerned parties as they have established the ownership over the said property.
26. The defendants have produced the Ex.D.87 a certified copy of the IA filed under Order XXXIX Rule 1 and 2 r/w Section 151 of CPC in O.S. No.3936/2001, which was filed by the Lakshmamma and others against the same defendants of this suit in respect of land Sy.No.41/1 and 42, measuring 18 guntas and 2 acres 30 ½ guntas of Matadahalli. Ex.D.88 is a certified copy of the another IA filed in the same suit and Ex.D.9 is a memo filed by the Lakshmamma and another for seeking permission to withdraw the suit. Ex.D.98 (Ex.P.26) is a certified copy of joint compromise petition filed in O.S.No.10582/87, which the suit was filed by the plaintiff Govindaraju against the Narayanappa and 9 others for seeking a partition and separate possession of their joint family properties, wherein shown a B-schedule property is allotted to the share of Narayanappa (uncle of the Govindaraju), wherein appears that two sites formed in the joint Sy.No.42 and 41/1 situated at Matadahalli Village measuring East-West: 30 feet, North-South: 44 feet, is allotted to him along with a another site No.20, which is 87 O.S. No.27000/2011 measuring East-West: 35 feet on the Northern side, and 30 feet on the Southern side and North-South: 44 feet (35 + 30) x 44/2 and A- schedule properties a 4 sites formed in Sy.No.42 and 41/1 of Matadahalli measuring East-West: on the Northern side 70 feet, on the Southern side 64 feet 6 inch and North-South: on the Eastern side 70 feet, Western side 61 feet (70 feet + 64 feet.06 inch/2 x 70 feet + 61 feet)/2 and other sites site No.6, 9, 10 of the Matadahalli Village and site No.22, 23, 24, 25 of the Savarlane Village; i.e., a suit schedule property of this suit. Defendants have produced the certified copy of order sheet of O.S. No.5107/10 filed by the plaintiff against the defendants for seeking the permanent injunction against the defendants in respect of the above said suit properties and other properties against the defendants. The said suit was on the file of the 9th Addl. City Civil Court, wherein IA-II filed by the plaintiff under Order XXXIX Rule 1 and 2 CPC is allowed and TI is granted against the defendant till disposal of the suit. Defendants have produced Ex.P.30 the certified copy of the judgment of O.S. No.1140/82 filed before the 2nd Addl. City Civil Court, Bengaluru, along with the certified copies of the issues, 88 O.S. No.27000/2011 which the suit was filed by the Papaiah and another against the defendants of this suit for seeking a declaration and permanent injunction in respect of land Sy.No.41/1 measuring 18 guntas and 2 acres 30 ½ guntas in respect of Sy.No.42 of Matadahalli Village, wherein on 23.2.89 the suit is partly decreed by declaring the plaintiffs (Papaiah and another) as a owner of the above said properties, which are jointly bounded together East by: Land belonging to the Military Authorities, West by: Water Channel or Kaluve. Now the Sy.No.42 of the Matadahalli is a one of the suit Sy.No. in the present suit. In the above said suit, a plea of the plaintiff was that a suit schedule property of Sy.No.42 is a purchased property by Papaiah; i.e., 1st plaintiff. There is a Military property along the Eastern boundaries also there is a kalli fence to which the defendants are trying to encroach in the said properties. Therein the defence of the defendants was that total measuring 613 acres and 29 guntas of Hebbal, which includes 2 acres 6 gunta in Sy.No.42 has been taken over by the Union of India; but, no permanent injunction granted against the defendants. Against the said judgment and decree of the above said original 89 O.S. No.27000/2011 suit, the aggrieved defendants approached to the Hon'ble High Court of Karnataka by filing RFA No.317/89, which is allowed by the Hon'ble High Court of Karnataka on 2nd January 1996 by setting aside the above said judgment and decree. Defendants have produced (Ex.D.43) the certified copy of the judgment of O.S. No.15802/2001 filed by the Padmanna, Lakshmanna and others against the defendants of this suit on the file of this court in respect of suit schedule properties Sy.No.41/1 measuring 18 guntas out of total measuring 36 guntas, which is purchased by their father and for the remaining 16 guntas belonging to Papaiah and Muninagappa and also in respect of Sy.No.42 of Matadahalli Village to the measuring 2 acres 30 guntas out of 5 acres 33 guntas belonging to Padmanna and Lakshmanna and for the remaining land belonging to Papaiah S/o.Muniswamappa. The said suit was partly decreed by this court by declaring that plaintiffs are the owners of Sy.No.41/1 measuring 18 guntas and they are not entitled for 2 acres 30 guntas of the Matadahalli Village by giving a finding that plaintiffs are out of possession after proceeding in INT.30/55-56. Defendants have produced the certified copy of 90 O.S. No.27000/2011 order sheet of O.S. No.5108/2010 filed by the Govindaraju; i.e., father of the present plaintiff against the Defence Department for seeking a permanent injunction. Later on, on 2.12.2011 filed a memo for withdrawal of the suit. Ex.D.45 is a certified copy of judgment of O.S. No.5158/2010 filed by the M/s.Jain Housing and Construction Limited against the defendants; i.e., defence officers for seeking a relief in respect of properties bearing Municipal No.24 (earlier site No.1 to 3) with Municipal No.25 (earlier site No.4 and 5) are formed in Sy.No.42 of Matadahalli Village. Both the properties purchased under the registered sale deed executed by N.Govindaraju in favour of the M/s.Jain Housing and Construction Limited for seeking a relief of permanent injunction. The said suit was dismissed as not maintainable. Ex.D.44 to 56 are the notice copies issued to the plaintiff brother and defendants of this suit with regard to the revisions filed before the Deputy Commissioner Urban, Bengaluru, by the plaintiff of this suit and his brother Shashank. Plaintiff also have produced the revision petitions and copy of notice, which are at Ex.P.51 to 56 in O.S. No.26999/2011 by stating that the said document is also to be looked into for 91 O.S. No.27000/2011 deciding the present case in hand. Plaintiff have produced the certified copy of the judgment of Hon'ble High Court of Karnataka passed in WP No.12853/2012 to 12855/2012, which were filed by the plaintiff and plaintiff brother Shravan (Ex.D.46) disposed on 6th August 2013, wherein opined by the lordships of the Hon'ble High Court of Karnataka in RFA No.517/89; therein taken a reference of O.S. No.355/1966 and held that subsequent suit should have been held as a barred by resjudicata. In that view, the suits filed by the petitioners before the court would not be maintainable and also discussed in para No.6 of the judgment that original suit, which is in hand and O.S. No.26999/2011 and O.S.No.27001/2011 are pending before the civil court and therein ordered to maintain the status-quo; if, the respondent (defence officer) desired to proceed with the matter under the Public Premises Act, it was necessary for all of them to bring all these aspects to the notice of the trial court below to either for seek for vacating interim orders or for disposal of the suit, which will be enable to them to proceed further in the matter. Ultimately a liberty given to defence officer for seeking appropriate orders from the civil court in the suits referred to 92 O.S. No.27000/2011 above. If, such orders granted by the civil court, it would be open for respondents to thereafter proceed further in accordance with law. Plaintiff have produced the Ex.P.47 a certified copy of the judgment of MFA No.658/2014 clubbed with 659/2014 and 660/2014 (CPC), which are the MFA filed by the plaintiffs before the Hon'ble High Court of Karnataka by challenging the interim order of this court passed in O.S. No.26999/2011 and O.S. No.27001/2011 also in O.S. No.27000/2011 under Order 39 Rule 1 and 2 of CPC, which were dismissed by this court, wherein the Hon'ble High Court of Karnataka passed the status-quo orders by giving a finding that the trial court is directed to dispose the suits before 31st April 2016. Later on time to time extended the time, now the time for disposal of the said suit is extended till 15th August 2017 as per the order of the Hon'ble High Court of Karnataka in MFA No.658/2014, dated 27.04.2017. On careful consideration of the above discussed certified copies of the judgments including the certified copy of the judgment of O.S. No.2403/2006 filed on the file of 9th Addl.CCJ, Bengaluru, and delivered the judgment on 28th February 2007 and the said suit was 93 O.S. No.27000/2011 filed by the Srinivasa Reddy and others along with a father of the plaintiff by namely Govindaraju against the Defence Department for seeking the permanent injunction in respect of Sy.No.1 measuring 19 acres out of total extent of 373.33 acres of Savarlane Village, Matadahalli Dhakle, Kasaba Hobli, Bengaluru North Taluk, Urban District, Bengaluru. RTC of above said land belonging to year 1993-94 to 2003-04 of the above said property entire extent of 373 acres 33 gunta was produced in O.S. No.26999/2011, which the said judgments and documents are very important document to decide this suit also along with the said suit, wherein mentioned the said property is in possession of the Govt. in cultivation and ownership column. The same observation is made by the said court in the judgment para No.7. For which the plaintiffs filed a rejoinder with a contention that the said land is not belonging to defendants and the plaintiffs are in lawful possession and enjoyment of the same. For which the said court came to conclusion that the defendant No.4 excavated the land and laid down the pillars, work is under progress, it is showing the possession of the defendants No.4 and 5 over the suit schedule 94 O.S. No.27000/2011 property; but, not the plaintiffs. With the above said findings, the said suit is dismissed. It is very surprise to note that a numbers of suits started to filing from the period of adopted father of Govindaraju by name Narayanappa and a wife of Narayanappa and Papaiah had filed a numbers of suit for seeking the ownership and possession of a portion of land of Sy.No.1 of the Savarlane including the land of Matadahalli Village. In O.S. No.2403/2006 a claim of the plaintiff is for 19 acres of Savarlane Sy.No.1 out of total measuring 373.33 acres likewise O.S. No.1140/1989 was filed by the Papaiah and Narayanappa against the defendants relating to the suit schedule property Sy.No.41/1 measuring 18 guntas and Sy.No.42 measuring 2 acres 30 ½ guntas of the Matadahalli Village on the file of 2nd Addl. City Civil Court, Bengaluru; it was partly decreed by holding that Papaiah and Narayanappa are not in possession of 2 acres 30 ½ guntas of Sy.No.42 of Matadahalli Village and the claim against the said property was dismissed and also no permanent injunction is granted against the defendants, though the plaintiffs declared as they are the owners of land Sy.No.41/1 measuring 18 guntas. This judgment was challenged 95 O.S. No.27000/2011 by the defence officer before the Hon'ble High Court of Karnataka in RFA No.317/89, it was allowed and a judgment of this court is set-aside. Through the above said judgments, it is clear that neither the 2nd Addl. City Civil Court nor the 9th Addl. City Civil Court or Hon'ble High Court of Karnataka declared as detail discussing in para No.9 of the judgment of RFA No.317/89 by giving a findings that it is difficulty to find out where exactly plaintiff's lands ends and the defendants lands in Sy.No.42 begins, ought to not to have held that the plaintiffs are the possessors of the lands measuring 18 guntas of Sy.No.41/1 and 2 acres 30 ½ guntas in Sy.No.42 of Matadahalli Village, Kasaba Hobli, and also taken a discussion about the defence of the defendants that whether they have claimed 2 acres 6 guntas as they are in possession of the said lands along with the other lands measuring 613 acres 29 guntas since 1955 and it is unnecessary to go into that question as to how they came into possession of the lands in this appeal, in view of dismissal of O.S. No.355/1966. With the said observation, the trial court ought to have dismissed the suit as barred by principle of 96 O.S. No.27000/2011 resjudicata by giving the said judgment, the judgment and decree of the lower court is set-aside. As per Ex.D.43 of O.S. No.15802/2001, which was on the file of this court filed by the Padmanna and Lakshmanna against the defendants disposed on 30th December 2009 by holding that plaintiffs are declared to be owners of Sy.No.41/1 measuring 18 guntas and in respect of land Sy.No.42 measuring 2 acre 30 gunta was dismissed. It is very necessary to discuss that the lordships of the Hon'ble High Court of Karnataka in RFA No.317/1989 held that in O.S. No.1040/1982 and in O.S. No.355/66, as the Predecessor of the present plaintiff not succeeded to prove the ownership over the any portion of land Sy.No.42 of Matadahalli Vilalge and also even O.S. No.15802/2001 not succeeded to prove the plaintiffs Padmanna and Lakshmanna that they are in owner and possessor of 2 acre 30 ½ gunta in Sy.No.42 situated at Matadahalli Village.
27. According to the plaintiff's suit documents of the present suit, out of 5 acre 22 gunta Matadahalli Village, after acquiring the 2 acres 6 gunta out of the above said land by the Mysore Govt. under the acquisition proceedings and handed over 97 O.S. No.27000/2011 the same to the defence department, there is remained a remaining property 3 acres 16 guntas with the plaintiff's grandfather and it was succeeded by the father and uncles of the Govindaraju; thereafter, it was partitioned in between them in the year 2003; after that the said property, which was came to Narayanappa wherein suit schedule property is situated in Sy.No.42 of Matadahalli Village before forming the sites in it including the other properties came to the Narayanappa was got divided in between the plaintiff and his sons in the year 2007. Accordingly, the suit schedule properties came to the G.Shashank under the minor guardianship of his father Govindaraju and he has paid the tax as per Ex.P.3, P.4 in the year 2006-08 and Ex.P.4 produced in O.S. No.26999/2011 is a property extract issued on 6.2.2003 for the year 2002-03 by the BBMP is produced, wherein the name of the Govindaraju; i.e., father of the plaintiff mentioned as he is owner and possessor of the suit schedule property site No.25; i.e., suit schedule property measuring 160 x 66 + 58/2 and some of the documents photos and CD are produced at Ex.P.11 to 14 to show that they have erected the building and given to tenants including 98 O.S. No.27000/2011 the petrol bunk (Indian Oil Corporation) etc., and also produced the tax paid receipts Ex.P.6 to 9 for the year 2010 to 2012, wherein mentioned that a plaintiff G.Shashank has paid the tax in respect of suit property No.24, Dinnur Sulthanpalya Main Road, Kavalabyrasandra. The said documents are supported with a partition deed of the year 2007 Ex.P.5. On careful consideration of the above said verdict of the various judgments of the District Courts and also judgment of RFA No.317/89 - a certified copies of the judgments of the original suits including the appeals before the Hon'ble High Court of Karnataka are disclosing that neither the right of the plaintiff nor the right of the defendants decided regarding the ownership of suit schedule property, whether it is in the property of the plaintiff or it is coming in the property of defence measuring 2 acres 6 guntas of the Sy.No.42 of the Matadahalli Village; therefore, it is very necessary to prove before the court of law by filing the fresh suit by the parties in litigation that (plaintiff or defendants) first of all by the both parties to the suit are necessary to get identify their property whether it comes in the remaining property of the plaintiff succeeded by their 99 O.S. No.27000/2011 Predecessor measuring 3 acres 16 guntas or it is in measuring 2 acres 6 gunta (out of measuring 5 acre 22 guntas in Sy.No.42 of the Matadahalli Village), defence land by establishing their title over the suit schedule property by producing the necessary documents of the ownership to establish their ownership over the suit schedule property. I agree that according to Ex.D.5 and some of the judgments and other records produced by the defendants are disclosing that 2 acres 6 gunta of Matadahalli Village is handed over by the Mysore Govt. to the defence department after independence for the use of the defence department along with the Savarlane properties and other properties. Once the possession is handed over to Military, then the Defence Estate Officers of the Union of India and Commandant in Chiefs will become entitle for preserving their Military lands by making a entry in MLRs. There is no need of the said officers to look at the concerned body of CMC or BBMP or any local body have maintained the same in the land records or not. It is left to the revenue authority to maintain the said records by making entry in the concerned records under the Land Revenue Act. In this regard, the D.W.1 has rightly 100 O.S. No.27000/2011 deposed in his evidence and advocate for the defendants also rightly argued on the said point. It is appearing in this case that through the all the above discussed evidence of the P.W.1 and documentary evidence of the P.W.1 and including the evidence of D.W.1 and D.W.4 and 6 and above discussed various documents and judgments it is clearly appearing that the defendants have not proved that whether the suit property claimed by the plaintiff is belonging to them or not, by correctly got surveying the said property through the correct procedure of the survey with the help of the survey department. Ex.D.12 and 13 not clarified anything about the property of the plaintiff wherein situated in Sy.No.42 of the Matadahalli Village; i.e., in the remaining land of 3 acre 16 gunta out of 5 acre 22 gunta; i.e., which is remained with the plaintiff's family after handing over the 2 acres 6 gunta to the defence department. Therefore, it is apparently appearing that the plaintiff has constructed the building in the suit schedule property by obtaining a sanctioned plan from the BBMP, it was not prevented by approaching the court of law or appearing before the BBMP to restrain the construction of the plaintiff by the defence 101 O.S. No.27000/2011 department in a initial stage only. Therefore, it appears as per the documents of the plaintiff, a tax paid receipts and other records of the BBMP including the photos and CD of the suit schedule property that the plaintiff is in possession of the same; but, though the some of the revenue documents along with the partition deed are produced by the plaintiff to prove the ownership are insufficient; but, the same property is claiming by the defendants by stating that the suit schedule property is coming within the area of 2 acres 6 guntas of the Sy.No.42 of the Matadahallil Village, which later on become a property of Savarlane and suit schedule property khatha No.24 in suit Sy.No.42 of the Matadahalli Village. Therefore, unless and until placing the documents by the both sides with a correct documents of the titles of the plaintiffs; i.e., a mutation entry and regular RTCs from the year 1972 to 2007 transferred from the ancestors of the plaintiff till the period of plaintiff, including a revenue Sy.No. layout formed by the Predecessor of the plaintiff by forming the sites in suit Sy.No.42 of the Matadahalli Village and also a building construction permissions and other documents maintained in the BBMP 102 O.S. No.27000/2011 including the survey reports are necessary to be produced. Likewise, the defendants also shall be produced a necessary documents of the acquired portion of 2 acres 6 gunta of the Sy.No.42 of the Matadahalli Village along with the correct survey sketch and survey report by approaching to the ADLR and collecting the necessary documents from the revenue authority. So for the said reasons, I would like to say that the suit schedule property in dispute cannot be decided as it is in ownership of the plaintiff or a Military Land. However, the possession of the plaintiff, which is proved in this suit as he is in possession of the suit schedule property on the date of suit, which is to be declared as the plaintiff is in possession of the suit schedule property. At this juncture, I would like to say that there is no any earlier suit filed by the present plaintiff or his father or brothers particularly in respect of the suit schedule property khatha No.24, which comes out of Sy.No.42. This is the first suit filed by the plaintiff in respect of the suit schedule property. I agree that the earlier suits were filed for the entire 2 acres 30 ½ guntas of the Sy.No.42 of the Matadahalli Village by the Narayanappa, Papaiah, Lakshmamma 103 O.S. No.27000/2011 and some others for declaring the ownership. But, all the courts answered in negative and not declared as the Predecessor of the plaintiff are owner of the suit schedule property. Therefore, the subject matter of the said suits are different with the subject matter of this suit, since the measuring of the suit schedule property in the respective suits are different. Hence, the question of a resjudicata does not attract to the present suit in hand. For all the above discussed reasons, I would like to answer issue No.1 and 4 Partly Affirmative and addl. issue No.2 as a Negative, as he is in lawful possession and enjoyment of the suit schedule property from the longer period more than decade and as on date of suit by holding that ownership is not proved as above discussed and accordingly, I would like to answer issue No.2 and addl. issue No.1 against the defendants as a Negative by giving a findings that the defendants not successfully proved that whether the suit schedule property is coming within the 2 acres 6 guntas of the Matadahalli Village as contended in their WS, which is acquired by the Mysore Govt. and handed over to the defendants and the plaintiff have created the false and forged documents in respect of the said properties; 104 O.S. No.27000/2011 however, the defendants proved that through the notification, MLR and some other documents that 2 acres 6 guntas of Sy.No.42 of Matadahalli is acquired by the Mysore Govt. and handed over to the same; but, not proved that 2 acres 16 gunta is handed over to them. Therefore, I would like to answer issue No.3 against the defendants as a Negative and addl. issue No.3 in favour of the defendants as a Partly Affirmative.
28. ISSUE No.5: For the reasons discussed in Issue No.1 to 4 and addl. issue No.1 to 3, I proceed to pass the following:-
ORDER.
Suit of the plaintiff is partly decreed with costs.
It is declared that the plaintiff is in settled possession and enjoyment of the suit schedule property.
Defendants and their servants, agents, or any persons claiming through them are hereby permanently restrained from unlawfully interfering in the peaceful possession and enjoyment of plaintiff over the suit schedule 105 O.S. No.27000/2011 property, unless and until got declaring the title and ownership by the defendants over the same and acquiring the possession from the plaintiff under the due course of law.
Advocate fee is fixed at Rs.1,000/-.
Draw the decree accordingly.
(Dictation computerized by Stenographer, corrected and then pronounced by me in the open court on this, the 29th day of July, 2017).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witness examined for the plaintiff:
P.W.1 - Sri.G.Shravan List of documents exhibited for the plaintiff:
Ex.P.1 - Special Power of Attorney
Ex.P.2 - C/C of partition deed dated 26.05.2003
taken place in between father of the
plaintiff Govindaraju and his brothers
Ex.P.3 - Tax paid receipt
Ex.P.4 - Tax paid receipt
Ex.P.5 - C/C of partition deed between the
plaintiffs and his father and brothers
dated 8.6.2007
106 O.S. No.27000/2011
Ex.P.6 to 9 - Tax paid receipts & Acknowledgement
for having been paid the taxes by means
of pay order
Ex.P.10 - Letter/Notice issued to the 2nd defendant
on 18.08.2011
Ex.P.11 to 14 - Photographs showing the existence of the building & CD Ex.P.15 - C/C of the registered sale deed dated 01.03.1956 Ex.P.15(a) - Typed copy the registered sale deed dated 01.03.1956 Ex.P.16 - C/C of registered partition deed dated 15.04.1972 taken place in between sons of the Muninagappa Ex.P.17 - C/C of Re-survey sketch Ex.P.18 - C/C of Gazette Notification for de-
notification of the lands notified by the CITB for forming layout Ex.P.19 - Final decree proceedings copy Ex.P.20 - C/C of Rectification deed dated 26.05.2003 Ex.P.21 - Survey notice Ex.P.22 - Survey sketch Ex.P.23 - C/C of plaint copy in O.S. No.355/1966 filed by Sri.Papaiah in respect of Sy.No.42/A measuring 1 acre and 9 ½ guntas situated at Sultanpalya Ex.P.24 - C/C of WS filed by defendant thereon (defendant No.2 in the case OS Nos.26999 & 27000/2011). Refer to Para Nos.4 and 7 of WS contending that the Defence Department has got 2 acres 6 guntas in Sy.No.42 out of 5 acres 22 guntas.
Ex.P.25 - C/C of reply to the WS- Para 3 of the same speaks regarding the contention of WS.
Ex.P.26 - C/C of issues in O.S. No.355/1966 107 O.S. No.27000/2011 Ex.P.27 - C/C of plaint in O.S. No.1140/1982 filed against defendants 1 and 2 herein by Sri.Papaiah and Narayanappa in respect of 3 acres 6 ½ guntas in Sy.Nos.42 and 41/1.
Ex.P.28 - C/C of WS filed by the defendants and the contention that they got an extent of 2 acres 6 guntas in Sy.No.42 out of 5 acres 22 guntas.
Ex.P.29 - The deposition in OS No.1140/1982 by the defendant witness.
Ex.P.30 - C/C of judgment in OS No.1140/1982 Ex.P.31 - C/C decree copy in O.S. No.1140/1982 Ex.P.32 - C/C of Orders passed in WP No.12853/2012 dated 6.8.2013 upon the ejectment notice issued by the defendants wherein the court has directed the respondents to keep the proceedings in abeyance till the decision in the Civil Court in the above cases.
Ex.P.33 - C/C of judgment passed in MFA No.658/2014 dated 09.02.2016 Ex.P.34 - Letter written on 31.03.15 by Asst.Director & CPIO (Records) for DGOA of GOI to Shravana.G./brother of plaintiff for seeking information about the handing over and taking over the lands from Mysore Govt. to Defence Dept. Ex.P.35 - Postal Cover Ex.P.36 to 39 - Four applications submitted to the Director of Karnataka State Archies, Vidhanasoudha, Bengaluru, for seeking about the clarification.
108 O.S. No.27000/2011Ex.P.40 - Letter dated 19.02.15 written by Asst.
Archiest to the Director of National Archies of India, Janapeetha New Delhi, with request to supply the order copy of Govt.
Ex.P.41 - Copy of complaint submitted on
18.08.2011 to the Inspector of RT Nagar
P.S. against the defendant
Ex.P.42 - Original construction license issued on
01.09.2005 by BBMP to plaintiff's
father N.Govindaraj
Ex.P.43 & 44 - 2 License fees challans submitted to BBMP for seeking the construction permission license Ex.P.45 - Original approved construction sanction plan as per the orders of BBMP dt.6.8.05 for the period of 1.9.05 to 31.8.07 Ex.P.46 - Copy of the original construction license issued on 1.9.05 by BBMP to plaintiff's father N.Govindaraj pertaining to Khata No.24.
Ex.P.47 & 48 - Two separate license fees challans submitted to BBMP for payment of the fees.
Ex.P.49 - Original approved construction sanction plan as per the orders of BBMP dt.6.8.05 for the period of 1.9.05 to 31.8.07 Ex.P.50 - Copy of application filed under R.T.I. Act for furnishing the documents Ex.P.51 - C/C of Letter dated 26.11.13 from RTI to the advocate Sri.Srikantham.V.R., regarding right to information under RTI Act.
109 O.S. No.27000/2011List of witnesses examined for the defendants:
D.W.1 - Major Prasad BMG
D.W.2 - Sri.Daljeet Singh
D.W.3 - Sri.Banwarilal
D.W.4 - Sri.K.Jayaprakash
D.W.5 - Sri.Satheesh.R.
D.W.6 - Sri.Shivaswamy
List of documents exhibited for the defendants:
Ex.D.1 - Authorization letter
Ex.D.2 & 3 - C/C of the judgment and decree dated
28.02.2007 in O.S. No.2403/2006
Ex.D.4 - C/C of the order dated 01.07.2013 in
WP No.24554/2010
Ex.D.5 - C/C of the plan
Ex.D.6 - Copies of proceedings
Ex.D.7 & 8 - Gazette Notification dated 26.07.1894
Ex.D.9 - Evidence by way of affidavit by
Y.N.Beeralinge Gowda in O.S.
No.2403/2006
Ex.D.10, 11 &
11(a) - C/C of endorsement and pahani
produced in RFA No.693/2007
Ex.D.12 & 13 - C/C of survey sketch
Ex.D.14 to 25 - Photos pertaining to Petrol Bunk in
Sy.No.1 of Savarlane along with C.D.
Ex.D.26 - Copy of the letter from the Secretary to
Govt. of Mysuru to Govt. of India,
Ministry of Defence.
Ex.D.27 - Certificate dated 10.02.2017 issued by
Deputy Commandant, PRTC.
Ex.D.28 - Specimen signature of Bhanwarilal
dated 10.02.2010 issued Deputy
Commandant, PRTC.
Ex.D.29 - Certificate dated 29.11.2016 issued by
Deputy Commandant, PRTC.
110 O.S. No.27000/2011
Ex.D.30 - Specimen signature and stamp used
during 1995 dated 29.11.2016 issued by
Deputy Commandant, PRTC.
Ex.D.31 - Letter given by Commissioner,
Corporation of Bengaluru to Estate
Officer, Defence Lands, regarding
widening and Re-modeling of important
roads and circles.
Ex.D.32 - Letter sent by Bengaluru Mahanagara
Palike to Defence Estate Officer.
Ex.D.33 - Proceedings of Govt. of Karnataka,
regarding transfer of Defence lands to
Govt. of Karnataka for infrastructure
development of Bengaluru.
Ex.D.34 - Letter given by Ministry of Defence,
New Delhi, to Director General,
Defence Estates, Ministry of Defence.
Ex.D.35 - Sketch showing the proposed acquisition
of Defence land of J.C. Nagar.
Ex.D.36 - Letter given by Bengaluru Mahanagara
Palike to Defence Estate Officer,
St.Johns Road, Bengaluru, regarding
handing over the Defence land of Kabir
Ashrama Road, Sulthanpalya,
Bengaluru.
Ex.D.37 - Sketch showing proposed formation of
Ring Road connecting to Dinnur Main
Road.
Ex.D.38 & 39 - Survey Sketch
Ex.D.40 - Judgment in O.S. No.1140/1982
Ex.D.41 - Issues in O.S. No.1140/1982
Ex.D.42 - Judgment of RFA No.317/1989
Ex.D.43 - Judgment of O.S.No.15802/2001
Ex.D.44 - Order sheet of O.S.No.5108/2010
Ex.D.45 - Judgment of O.S. No.5158/2010
Ex.D.46 - Revision Petition No.09/2016-17, which
is filed before Deputy Commissioner
111 O.S. No.27000/2011
Ex.D.47 - Revision Petition No.10/2016-17, which
is filed before Deputy Commissioner
Ex.D.48 - Revision Petition No.11/2016-17, which
is filed before Deputy Commissioner
Ex.D.49 to 57 - Notice sent by Special Deputy
Commissioner
Ex.D.58 to 60 - Photos
Ex.D.61 - CD
Ex.D.62 - Letter given by Commissioner and
Secretary to Revenue Department,
M.S.Building, Bengaluru, to Deputy
Commissioner of Bengaluru Urban
District, regarding acquisition of land
Ex.D.63 - Letter dated 14.07.2006 given by
Defence Estates Officer, Karnataka &
Goa Circle, Bengaluru, to the ADLR, K
Circle, Bengaluru, regarding survey
sketch
Ex.D.64 - Endorsement given by Thasildhar to the
Defence Estate Officer, Karnataka &
Goa Circle, Bengaluru
Ex.D.65 - Affidavit which is filed in
MFA.No.7264/2006 c/w MFA
No.7265/2006
Ex.D.66 - Letter for deposition
Ex.D.67 - Authorisation Letter
Ex.D.68 to 70 - Military Land Records
Ex.D.71 - RTC
Ex.D.72 - Letter of correction of MLR
Ex.D.73 & 74 - Proceedings of Board of Officers
Headquarters, Bengaluru, regarding
preparing the Schedule of boundaries,
areas, location and description of sites
belonging to Ex Mysore State Forces at
Bengaluru and Mysore.
Ex.D.75 - Letter to Principal Director, Defence
Estate, Ministry of Defence, Southern
Command, Pune.
112 O.S. No.27000/2011
Ex.D.76 - Notification of Govt. of Mysore,
General and Revenue Departments.
Ex.D.77 to 80 - Second MLR Register pages
Ex.D.81 - Survey tippani of Sy.No.42 of
Mattadahalli
Ex.D.82 - Karnataka Revenue settlement
akarbandh
Ex.D.83 & 84 - Revision Petition No.11/2016 which is
filed before Deputy Commissioner,
Urban District, Bengaluru.
Ex.D.85 - Letter given by The Parachute Regiment
Training Centre, JC Nagar, Bengaluru,
to Hon'ble Registrar General, High
Court of Karnataka, Bengaluru,
regarding enquiry of case.
Ex.D.86 - FIR Copy
Ex.D.87 & 88 - Copy of Interlocutory Applications
O.S.No.3936/2001
Ex.D.89 - Memo in O.S. No.3936/2001
Ex.D.90 - RTA Application which is filed by
PRTC.
Ex.D.91 & 92 - Acknowledgement and Counter file
Ex.D.93 to 97 - Application form of RTI and Counter file Ex.D.98 - Compromise Petition in O.S. No.10582/1987 Ex.D.99 - Order sheet in O.S. No.5107/2010 Ex.D.100 - Census of India 1971 of Mysore of District Census Handbook Bengaluru District Ex.D.101 - Mysore Gazette dated May 18th 1893 Ex.D.102 - Mysore Gazette dated July 26th 1894 Ex.D.103 - Mysore Gazette dated June 29th 1899 Ex.D.104 - Mysore Gazette dated October 26th 1899 113 O.S. No.27000/2011 Ex.D.105 - Site Plan of Bengaluru 4-MI LINES, MI, ML AND CIL AREA, Office of the GE (North), Bengaluru.
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
114 O.S. No.27000/2011