Bangalore District Court
Sri.A.G.Venugopal vs Sri.Rajendra Patil on 7 December, 2015
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 7th day of December 2015.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.27146/2007
Plaintiff: Sri.A.G.Venugopal,
S/o.Mr.A.Gopal, aged about
42 yrs, No.3751, 11th Cross,
13th 'B' Main, HAL 2nd Stage,
Bengaluru-560 038.
(By Sri.K.S.Ashok Kumar, Advocate)
V/S
Defendants: 1. Sri.Rajendra Patil,
S/o.Sri.R.S.Patil, aged about
52 yrs, No.94/M, 12th Main
Road, 9th Cross, R.M. Vilas
Extension, Bengaluru-560 094.
2. The Secretary, Bengaluru
Development Authority, Kumara
Park West, Sankey Road,
Bengaluru-560020.
(By Sri.M.S.Shyam Sundar, Advocate for deft.No.1)
(By Sri.K.S.Naga Reddy, Advocate for deft.No.2)
2
O.S. No.27146/2007
Date of institution of the suit 12.12.2007
Nature of the suit (Suit for Suit for Permanent
Pro-note, Suit for Declaration Injunction
and Possession, Suit for
Injunction, etc.)
Date of commencement of 07.12.2009
recording of the evidence
Date on which the Judgment 07.12.2015
was pronounced
Total Duration Year/s Month/s Day/s
07 11 25
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for permanent injunction to restrain the defendants from interfering with the possession of the plaintiff over the 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 that piece and parcel of property bearing Residential property under Site No.3581, situated at HAL 2nd Stage, Doopanahalli, Bangalore within the limits of Bangalore Mahanagara Palike ward No.72, PID No.72-1-3581, measuring East to West: 72-00 feet and North to South: 40 feet, in all 2880 square feet, and bounded on the East by: Road West by: Site No.3594, 3 O.S. No.27146/2007 North by: Site No.3582, South by: Site No.3580.
3. Case of the plaintiff, in brief, is as below: -
Suit schedule property was allotted to one Purushotham by the BDA and he was put in possession of the suit schedule property by the BDA on 22.04.2002 and possession certificate was also issued to him by the BDA. Subsequently sale deed dated 22.04.2002 has been executed by BDA in favour of said Purushotham. Plaintiff has purchased the suit schedule property from said Purushotham under sale deed dated 23.03.2007 for valuable consideration and khatha also has been changed in the name of the plaintiff in respect of suit schedule property and plaintiff is in possession of the suit schedule property from the date of purchase. Defendants have no title or possession over the suit schedule property and in spite of that the defendants are trying to interfere with the possession of the plaintiff over the suit schedule property. Hence, this suit arose.
4. After issuance of the suit summons and duly served upon them both the defendants appeared through their respective 4 O.S. No.27146/2007 advocate SP and KSWR; thereafter both the defendants have filed their independent WS.
5. Case of the 1st defendant, in brief, is as below: -
1st Defendant is the owner of site No.3593 measuring 19.95 meters East to West and 12.20 meters North to South situated in HAL II Stage, Indiranagar, Bengaluru and the said site has been allotted to the 1st defendant by BDA and sale deed has been executed by BDA in favour of the 1st defendant in respect of site No.3593.
1st Defendant has purchased site No.3594 measuring 18.4 meters East to West and 12.25 meters North to South situated in HAL II Stage, Indiranagar, Bengaluru, under sale deed dated 05.09.2002 from one Mallikarjuna.
1st Defendant has acquired the marginal land measuring 1.75 meters East to West and 12.25 meters North to South from BDA under sale deed dated 09.06.2003, which is situated on the Eastern side of site No.3594.
5
O.S. No.27146/2007 BBMP has merged the marginal land with site No.3594 which has been purchased by the 1st defendant under special notice dated 31.01.2004 and they are given common No.3594.
Subsequently property No.3594 and 3593 have also been merged vide order dated 16.01.2007 passed by BDA and therefore, all the three sites purchased by the 1st defendant are merged and the boundary for all the three sites belonging to the 1st defendant as below mentioned;
East by: BDA site No.3581 and 3582,
West by: Road,
North by: BDA site No.3592,
South by: BDA site No.3595.
It is defence of the 1st defendant that the plaintiff claims to be the owner of suit schedule property bearing site No.3581 which is on the Eastern side of the property of the 1st defendant. The plaintiff has trespassed over the property of the 1st defendant to the extent described in schedule to the written statement. The building constructed by the plaintiff is projecting over the property of the 1st defendant and he is interfering with the possession of the 1st defendant over his property described in the schedule to the written statement. Further it is in all contended that the plaintiff has 6 O.S. No.27146/2007 encroached over the property of the 1st defendant which described in the schedule to the written statement and the 1st defendant has not interfered with the possession of the plaintiff over his property.
1st Defendant has preferred counter claim and has sought for relief of permanent injunction to restrain the plaintiff from interfering with the possession of the 1st defendant over the property described in the schedule to the written statement and also a sought for mandatory injunction to direct the plaintiff to remove the construction put up in the property described in the schedule to the written statement and for costs.
6. Case of the 2nd defendant, in brief, is as below:-
Defendant No.2 contended in its WS that the plaintiff has filed the false, frivolous and baseless suit against 2nd defendant and 2nd defendant is not at all necessary and proper party to adjudicate the matter. Further 2nd defendant contended that the plaintiff has not issued statutory notice under Section 64 of BDA Act. But, admitted that the suit schedule property was allotted to Sri.Purushotham under sale deed dated 22.04.2002 by the BDA. It is alleged that the BDA has not allotted the suit schedule property 7 O.S. No.27146/2007 in favour of Sri.Purushotham under BDA (Allotment of Sites) Rules, but the suit schedule property has been re-conveyed under the Re-convey Scheme as per the BDA Act in favour of Sri.Purushotham. Further it is admitted that as per the available records, the plaintiff has purchased the suit schedule property from Sri.Purushotham under a sale deed dated 23.03.2007. Further it is alleged that the site No.3594 of H.A.L. 2nd Stage Layout, Bengaluru, is also BDA allotted in favour of Sri.D.U.Mallikarjuna, S/o.Sri.D.S.Umapathi under sale deed on 14.08.2000 by collecting the sital value and subsequently, Sri.D.U.Mallikarjuna had sold the same in favour of 1st defendant under sale deed dated 06.09.2002, which is situated just behind the suit schedule property. Further it is alleged that 1st defendant after purchasing of the site No.3594, has requested for allotment of marginal land between the site No.3581 and 3594 measuring East to West: 1.75 meters and North to South: 12.25 meters in his favour and by considering his request, the BDA had allotted the aforesaid measurement of marginal land in favour of 1st defendant under marginal land as mentioned in sale deed dated 09.06.2003 and also issued the amalgamation 8 O.S. No.27146/2007 possession endorsement. It is stated that, when such being the state of affair, the plaintiff/Sri.A.G.Venugopal has requested to the BDA on 17.07.2012 along with documents, seeking for cancellation of Marginal Land allotted to 1st defendant and after detailed enquiry in the aforesaid matter, with spot mahazar and inspections of the higher officials of 2nd defendant and it is found that, there is no marginal land is available between the site No.3581 and 3594, before allotment of the marginal land in favour of 1st defendant, the BDA was reconvened the suit schedule site in favour of Sri.Purushotham and as such no marginal land was available in between the site No's.3581 and 3594 and by confirming the non- availability of marginal land in between the aforesaid two sites, the BDA by withdrawing the allotment of marginal land made in favour of 1st defendant cancelled the marginal land sale deed and ordered for refund of marginal land value to 1st defendant and accordingly, the notice dated 21.09.2012 was issued to him by way of intimation and thereafter, the BDA has cancelled the marginal land sale deed, by way of cancellation deed dated 21.11.2012. Further it is alleged that there is no cause of action against 2nd 9 O.S. No.27146/2007 defendant and hence, the suit against 2nd defendant is liable to be dismissed.
7. The plaintiff in response on the counter-claim of the defendant, has filed a rejoinder to the counter-claim of the defendant No.1, in brief, is as below:-
The prayer of counter-claim made by the defendant No.1 is not maintainable either in law or on facts and the same is liable to be rejected with exemplary costs. It is stated that the averments made that the margin land which is sanctioned by the BDA to the defendant is only an imaginary and in fact the marginal land is not available in the site already allotted to the plaintiff. Further it is stated that it is an admitted fact that the defendant is not in possession of the so called marginal land and there are no documentary proof. It is also stated that an application filed to implead the BDA is in controversy between the plaintiff and defendant. The BDA is the right authority to place before the court as to whether there is any marginal land available after allotment of the site in favour of plaintiff or not. Further plaintiff alleged that he has filed the suit only for a permanent injunction against the 10 O.S. No.27146/2007 defendant; as such, there is no question of granting any counter claim in favour of the 1st defendant and there are no bonafide reasons in the claim of the 1st defendant, hence plaintiff prays to reject the counter-claim of the 1st defendant.
8. From the above said pleadings, following issues have been framed:-
1. Whether the plaintiff was in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves alleged interference?
3. What decree or order?
It is pertinent to note that though this is a suit filed by the plaintiff is a permanent injunction suit; but, the defendant has filed the counter-claim against the plaintiff and same is denied by the plaintiff in rejoinder. Therefore, there is need of framing additional issues, which is provided under Order XIV Rule 5 (2) of CPC the court can frame necessary additional issues if required even at the time of dictating the judgment also; accordingly, I would like to frame the below mentioned additional issues:-
Whether 1st defendant proves that he is entitled for the relief of counter-
claim as claimed in his WS against the plaintiff?11
O.S. No.27146/2007
9. On behalf of the plaintiff, affidavit evidence of plaintiff has been filed and he has been examined as P.W.1 and Exs.P.1 to P.11 documents have been got marked. Defendant No.1 has not adduced any evidence on their behalf and also not got marked any documents on his behalf in order to disprove the case of plaintiff and to prove the counter-claim of the 1st defendant and the 2nd defendant has also not placed any oral or documentary evidence to disprove the case of plaintiff.
10. Ex.P.1 is the letter issued by the bank, Exs.P.2 and P.3 are the tax receipts, Ex.P.4 is the khatha certificate, Ex.P.5 is the khatha extract, Ex.P.6 is the certified copy of the sale deed executed by BDA, Ex.P.7 is the certified copy of the sale deed executed by Purushotham, Ex.P.8 is the memorandum of deposit of title deeds, Ex.P.9 is the endorsement, Ex.P.10 is the copy of spot inspection report (Tippani), and Ex.P.11 is the certified copy of cancellation deed dated 21.11.2012.
11. Heard, the learned advocate for the plaintiff and perused the records. Learned advocate for the plaintiff has submitted written arguments also and the same has been considered. In spite 12 O.S. No.27146/2007 of sufficient time granted to the defendants No.1 & 2 counsel, they have remained absent and not placed their arguments; hence, arguments on behalf of defendants No.1 and 2 have been taken as heard.
12. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: In the affirmative, Issue No.2: In the affirmative, Addl.Issue.No.1: In the negative, Issue No.3: As per final order, for the following:-
REASONS.
13. ISSUE No.1 & ADDL. ISSUE No.1: That the burden of proving issue No.1 lies upon the plaintiff. On the other hand, the burden of proving additional issue No.1 lies upon the defendant. If, the issue No.1 is answered in favour of the plaintiff as a Affirmative; automatically additional issue No.1 will goes against the defendant. Suppose if additional issue is answered in favour of the defendant as a Affirmative, the plaintiff will be lost his case and issue No.1 will be answered against the plaintiff as a 13 O.S. No.27146/2007 Negative. In order to prove the case of plaintiff, the plaintiff A.G.Venugopal is got examined as a P.W.1 by submitting sworn affidavit evidence, in which he has categorically reiterated the plaint averments. The plaintiff/P.W.1 has stated in his evidence that suit schedule property was originally allotted to his vendor Purushotham by the BDA and he has purchased the suit schedule property from Purushotham under sale deed dated 23.03.2007 and he is in possession of the suit schedule property from the date of purchase. P.W.1 has further stated that Ex.P.6 is the certified copy of the Allotment Letter issued by the BDA in favour of Purushotham. Ex.P.7 is the Sale Deed executed by Purushotham in favour of the plaintiff and Ex.P.1 is the Letter issued by the Bank for having deposited the original documents with the Bank.
The above said evidence of plaintiff/P.W.1 disclosed that the suit schedule property was originally allotted in favour of one Sri.Purushotham by the BDA and sale deed was also executed in favour of Sri.Purushotham by the BDA and Ex.P.6 is the Allotment Letter issued by BDA in favour of Purushotham and Ex.P.7 is the Sale Deed executed by Purushotham in his favour are not 14 O.S. No.27146/2007 disproved by the defendant. Through the above said discussed documents it is appearing that Purushotham was in possession of the suit schedule property, as he purchased from the BDA and thereafter as seen from Ex.P.3 which is not denied, plaintiff was put in possession of the suit schedule property on the date of purchase by the Purushotham. The counsel for the defendant cross-examined to the P.W.1. Then P.W.1 answered to the counsel for the defendant that site No.3593 is belonging to the defendant, he does not know the measurement of his site number is measuring 19.95 and 12.25 meters and also belonging to the defendant. Further answered that he does not know that the defendants site No.3593 and 3594 are being adjoining to each other and also BDA has executed sale deed in favour of 1st defendant is in the year 2003 in respect of marginal land measuring 3594 as a additional area for the site No.3594. Further he answered that he does not know the above said schedule for site No.3593 and 3594; but it is admitted that the property of the defendant is on the Western side of his site and the measurement of his site is being a 40 x 20 feet and the measurement of his site is mentioned in his title deeds. Further he 15 O.S. No.27146/2007 answered that he is in peaceful possession of the land which has been allotted to him by the BDA and after that obtained the sanctioned plan for constructing the building in site No.3581; accordingly constructed the building in it and also answered that he has not produced the construction sanctioned plan. Through the above discussed cross-examination the P.W.1 has categorically answered that he is being the possession of the suit property, which is handed over by the Purushothama under sale deed and which was allotted to Purushothama by the BDA and later on it was sold out to the plaintiff. In this regard, no any admissions are obtained from the mouth of the P.W.1 by the counsel for the defendant that the suit property is belonging to the defendant as claimed in counter-claim. The only some admissions given by the P.W.1 that property of the defendant is on the Western side of his property, which is measuring 40 x 20 feet except that nothing is admitted by the P.W.1 regarding the counter-claim of the defendant. The above said oral evidence is supported by the documents placed by the plaintiff in this case, which are Ex.P.1 to 11 and Ex.P.11 is a cancellation of sale-deed made by the BDA stating that there is no 16 O.S. No.27146/2007 any marginal land behind the suit property and about which the BDA was sanctioned is got cancelled. The above said documents also not disproved by the defendants by stating that no such any cancellation deed is taken place and marginal land sanctioned to him is cancelled etc. Under such circumstances, when there is a no oral and documentary evidence by the defendant No.1 regarding the suit schedule property is belonging to him and he is in possession and enjoyment of the same as he claimed in counter- claim there is no scope to this court to discard the evidence of plaintiff and the prayer of plaintiff for which prayed that he is in possession and enjoyment of the suit property. Since the evidence of plaintiff/P.W.1 and Exs.P.1, P.6 & P.7 are not all questioned, there is no reason to disbelieve the evidence of plaintiff/P.W.1 and Exs.P.1, P.6 & P.7. From the evidence of plaintiff/P.W.1 and Exs.P.1, P.6 & P.7 it is proved that plaintiff was in lawful possession of the suit schedule property on the date of the suit. For the above said reasons, I came to conclusion that the plaintiff has successfully proved the issue No.1 and 1st defendant has failed to disprove the case of the plaintiff and to prove the substance of his 17 O.S. No.27146/2007 counter-claim. It is also important to note that defendant No.2 has admitted the case of plaintiff and also specifically stated that the marginal land given to defendant No.1 is taken back by way of cancellation deed. Therefore, I would like to answer issue No.1 in favour of the plaintiff as a Affirmative and additional issue No.1 against the 1st defendant as a Negative.
14. ISSUE No.2: In order to prove this issue the plaintiff/P.W.1 has stated in his evidence that the defendant is trying to disturb his possession by making interference and obstruction. This evidence of plaintiff/P.W.1 is denied by the 1st defendant in his WS; but, not at all proved regarding the substance of the counter-claim and not disproved the case of the plaintiff as he has not made any interference or obstruction to the possession of the plaintiff by leading oral evidence or by placing any documentary evidence. Therefore, there is no evidence to disbelieve the evidence of plaintiff/P.W.1 that the defendant tried to disturb his possession over the suit schedule property. Therefore, it is crystal and clear that the alleged interference and obstruction of the defendant caused by the defendant to the 18 O.S. No.27146/2007 peaceful possession and enjoyment of the plaintiff over the suit schedule property is not at all disproved. Hence, I would like to say that the plaintiff has proved the issue No.2 also. Hence, I would like to answer this issue also in favour of the plaintiff as a Affirmative.
15. ISSUE No.3: For the reasons discussed in Issue No.1 & 2, and additional issue No.1, I proceed to pass the following:-
ORDER.
Suit of the plaintiff is decreed with costs. Defendants No.1 & 2 and their servants, agents, or GPA holder or anybody claiming under them from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff are hereby permanently restrained by means of permanent injunction.
Meanwhile counter-claim of the defendant No.1 is dismissed.
Advocate fee is fixed at Rs.1,000/-.
Draw the decree accordingly.
(Dictated to the Stenographer on online computer, thereof corrected and then pronounced by me in the open court on this the 7th day of December, 2015).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.19
O.S. No.27146/2007 ANNEXURES List of witness examined for the plaintiff:
P.W.1 - Sri.A.G.Venugopal.
List of documents exhibited for the plaintiff:
Ex.P.1 - Letter
Ex.P.2 & 3 - Tax Receipts
Ex.P.4 - Khatha Certificate
Ex.P.5 - Khatha Extract
Ex.P.6 - Certified Copy of Sale Deed
Ex.P.7 - Certified Copy of Sale Deed
Ex.P.8 - Memorandum of Deposit of Title Deeds
Ex.P.9 - Endorsement
Ex.P.10 - Copy of Spot Inspection Report
(Tippani)
Ex.P.11 - C/C of Cancellation Deed dtd.21.11.12.
List of witness examined for the defendants:
-NIL-
List of document exhibited for the defendants:
-NIL-
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
20
O.S. No.27146/2007
Judgment pronounced in the Open
Court(vide separate order).
ORDER
Suit of the plaintiff is decreed
with costs.
Defendants No.1 & 2 and their
servants, agents, or GPA holder or
anybody claiming under them from
interfering with the peaceful
possession and enjoyment of the suit
schedule property by the plaintiff are
hereby permanently restrained by
means of permanent injunction.
21
O.S. No.27146/2007
Meanwhile counter-claim of the
defendant No.1 is dismissed.
Advocate fee is fixed at
Rs.1,000/-.
Draw the decree accordingly.
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.