Bangalore District Court
Venkataramana vs The Commissioner on 21 April, 2016
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 21st day of April, 2016
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
: O.S. NO. 2914/2012:
PLAINTIFFS : Venkataramana,
Since dead by LRs
1(a) Smt.M.Pushpalatha,
W/o.Late.Venkataramana,
Aged about 63 years,
1(b) Smt.Susmitha,
D/o.Late.Venkataramana,
W/o.R.Deepak,
Aged about 39 years,
1(c) Sri.V.Suhash,
S/o.Late.Venkataramana,
Aged about 34 years.
All are residing at No.1/32,
16th Main road, MRCR Extension,
Vijayanagar, Bangalore- 560040.
(By Sri. L.S.Venkatakrishna, Advocate)
-V/S-
DEFENDANTS : 1. The Commissioner,
Bruhat Bangalore Mahanagara
Palike, Hudson Circle, Bangalore.
2. The Asst. Executive Engineer,
BBMP, Ward No.125,
Govindarajanagar, Bangalore.
( By Sri T.S.P.Advocate, for D.1 & D.2)
2 O.S.No.2914/2012
Date of institution of the suit: 18.4.2012
Nature of the suit:
Declaration and permanent
injunction
Date of commencement of 11.9.2012
recording of evidence:
21.4.2016
Date on which Judgment was
pronounced:
Duration:
Days Months Years
03 00 03
: JUDGMENT :
This suit is filed by the original plaintiff for declaration that the B schedule property is a part and parcel of the A schedule property conveyed to the plaintiff in terms of layout plan approved by the BDA and subsequently acknowledging and confirming the factum of ownership of the B schedule property as a part of the A-schedule property with all the rights of appurtenances and easements, and alternatively declaring B schedule property part and parcel of A schedule property and forming single unit with all the appurtenances and easements and plaintiff has rights of easement over the B schedule property for more beneficial enjoyment of the A schedule property and permanent injunction restraining the 3 O.S.No.2914/2012 defendants from taking possession of B schedule property and doing any acts of construction by which the structure of A schedule property will be damaged by process of any action and such other reliefs with costs.
(Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.)
2. Brief facts of the case are that the original plaintiff was the absolute owner in physical possession of the property bearing site No.1, formed in private in Sy.No.470/2 of Kempapura Agrahara Village describing it in the suit schedule property, as he had purchased it under the registered sale deed dated 9.10.1978 executed by B.Lingegowda, since then the plaintiff is in peaceful possession and enjoyment of the suit schedule 'A' & 'B' property as schedule 'B' property forming part of schedule 'A' property covered in sale deed dated 9.10.1978 measuring 850 sq.ft. up to the edge of the storm water drainage (halla). His name was entered in the khata and he was paying the taxes to B.B.M.P. The vendor of the plaintiff formed the layout approved by the BDA after due process of law which are necessary in action with survey of the land. It was approved 4 O.S.No.2914/2012 on 9.9.1970 which discloses the areas old to the plaintiff under the approval of the statutory authority. The plaintiff with a view to put a residential construction obtained a sanctioned plan and schedule 'B' property reflected as triangular portion lying on the western side of the property. It was also exclusive possession and enjoyment of the plaintiff and it was maintained as garden by planting number of trees therein. Thus he was enjoying the 'A' & 'B' property without interruption and hindrance from anybody, including the Corporation of Bangalore. The defendants have no right, title or interest over the portion of the property described in schedule 'B' property being part and parcel of schedule 'A' property. The defendants were interfering with the peaceful possession and enjoyment of the plaintiff over schedule 'B' property. Hence, he filed the suit in O.S.No.1030/2005 seeking permanent injunction. In the said suit Executive Engineer, B.B.M.P. Govidarajanagar has also been made a party to the suit. But it was dismissed only on the ground that the plaintiff had not produced any documents to show his possession over the schedule 'B' property, covered under schedule 'A' property and described as a marginal land. The schedule 'A' & 'B' properties are comprehensive property 5 O.S.No.2914/2012 owned by the original plaintiff as per approved layout on BDA and schedule 'B' property being vacant portion of the property apparent to the more beneficial enjoyment of schedule property and also it has assumed character of right of easement which is confirmed by the approved layout plan sanctioned by BDA, as schedule 'B' property being a portion attached to schedule 'A' property which measures 850 sq.ft. Even under Section 52(2) of the T.P.Act the warranty of title that had been confirmed on the plaintiff by his vendor Lingegowda who formed the layout includes the vacant site attached to schedule 'A' property. Sanction of two plans by the VDA shows the nature and possession schedule 'A' property as part of schedule 'A' property. Such being the case, the defendants have no right, title or interest have claiming the right over the schedule 'B' property as C.A. site illegally and making use of the same in a manner conducive and convenient for its purpose. It was objected by the plaintiff, but inspite of the same, the defendants were trying to take possession of the property from the plaintiff illegally. The plaintiff had issued statutory notice under Section 482 of the KMC Act. The cause of action arose to file the suit on 6 O.S.No.2914/2012 24.1.2012. Hence, the plaintiff has constrained to file the suit and prayed to decree the suit as prayed for.
(Note: The original plaintiff died and his LRs are brought on record. The LRs have proceeded with the case as cause of action survives).
3. On issuance of suit summons to the defendants after registering the case, the defendants have appeared through their counsel. Initially they have failed to file the written statement. But after filing the application seeking permission to file the written statement, under I.A.3, it was allowed and thus, the defendants have filed the written statement. They denied the material allegations of plaint averments and that the suit of the plaintiff, is not maintainable either in law or on facts and the suit is without any cause of action and it is illegal, vexatious, misconceived and to knock away the valuable property of B.B.M.P. The plaintiffs have no right, title or interest thereupon. The name of the plaintiff was entered in the khata records is not admitted. Neither the plaintiff nor his vendor had any right to deal with the schedule property which is a C.A. site. The vendor of the plaintiff did not confirm any ownership in favour of the plaintiff. In view of residential construction, the plaintiff had applied sanctioned to the BDA showing that the triangular 7 O.S.No.2914/2012 property is in possession of the plaintiff are denied. No sanctioned plan can be obtained in respect of C.A. site which is in possession of the B.B.M.P. The alleged sanctioned plan is concocted. The plaintiff has not shown how and when he obtained the sanctioned plan and the plaintiff was trying to grab the C.A. site misleading the facts on the basis of the fraudulent documents. The plaintiff had no right, title or interest or possessory right over the schedule 'B property and that the plaintiff was not owner of schedule 'B property. The dismissal of the earlier suit in O.S.No.1030/2005 establishes that, the plaintiff was not the owner in possession of the schedule properties. The defendant have denied the averments made in the plaint and stated that the plaintiff had not come to the court with clean hands and accordingly, it is prayed to dismiss the suit.
4. On the basis of the pleadings of the parties, the learned IX Addl. City Civil & Sessions Judge, Bangalore, has framed the following issues on 16.01.2013.
1. Whether the plaintiff is entitled for declaration to the effect of schedule 'B property is part of schedule 'A' property as per layout plan dated 9.9.1970?
8 O.S.No.2914/2012
2. Whether the plaintiff alternatively proves that he is having right of easement over schedule 'B' property for beneficial enjoyment of schedule 'A property?
3. Whether the plaintiff proves that he is in lawful possession of schedule 'A' & 'B' properties and there is interference by the defendants?
4. To what decree or order?
5. To prove the case, the original plaintiff deposed as PW.1 and relied upon the documents at Exs.P.1 to P.16. But he died during pendency of this suit. His wife deposed as P.W.2 and a witness as P.W.3 and other documents relied upon at Ex.P.17 to P.27. But the defendants have adduced the evidence of evidence of Asst.Engineer as DW.1 and relied upon the documents at Ex.D.1 to 5 and closed both the sides.
6. Heard the arguments of the learned counsels for the plaintiff and the defendants.
7. Perused the pleadings of the parties, evidence and record on hand.
8. My findings on the above issues are as under:
(1) Issue No.1 .. In the affirmative
(2) Issue No.2 .. Does not survive for
consideration
9 O.S.No.2914/2012
(3) Issue No.3 .. In the affirmative
(4) Issue No.4 .. As per final order for the
following:
R E A S O N S
9. Issue Nos.1 to 3:- These issues are interlinked with each other. To avoid repetition of facts and circumstances of the case to be discussed which are based on similar oral and documentary evidence, they are taken for common consideration.
10. During pendency of the suit and trial stage, after filing affidavit and documents got marked the original plaintiff died and his LRs are brought on record. Now they proceeded with the case by placing material evidence. Plaintiffs suit for claiming title of 'B' schedule property, as part and parcel of the 'A' schedule property, and that it has been acquired under registered sale deed which is the title deed dated 19.10.1978. Purchase of 'A' schedule property was inclusive of 'B' schedule property, which had been confirmed its nature as part and parcel of 'A' schedule property as whole property, by virtue of layout plan sanctioned on 9.9.1970. The interference of the defendant is pleaded that, they are claiming 'B' 10 O.S.No.2914/2012 schedule property as Civic Amenities site and hence they (B.B.M.P.) have authority to make use of the same in a manner conducive and convenient of their purpose, and that inspite of resistance they bent upon to take possession of the same and that statutory notice under Section 482 of KMC Act was issued by original plaintiff explaining absolute right over 'B' schedule property as it is part and parcel of 'A' suit schedule property and also that mere injunction suit filed by him was dismissed only on the ground of non-production of documents to show that he was in possession of 'B' schedule property. Though 'B' schedule property described by him as margin land, but he had acquired title under sale deed, in connection with the property which was an identified site No.1, inclusive of the schedule 'B' property described therein; It was out of duly approved layout plan. So, for these reasons he had cause of action to file this suit. Apart from this, he claimed alternatively that, he was having right of easement over 'B' schedule property, as it was for his beneficial use and enjoyment of his 'A' schedule property.
11. On the other hand, the defendants instead of claiming any legal absolute right acquired over 'B' schedule property as 11 O.S.No.2914/2012 C.A. site by pleading in the written statement, in the earlier suit filed by plaintiff, now claimed C.A. site asserting it as own by B.B.M.P. and exclusive right there upon, disputing the plaintiff's right title and interest over 'B' schedule property. So burden is casted upon the plaintiffs to prove that suit 'B' property is part and parcel of 'A' schedule property and it was also confirmed as per approved layout Plan dated 9.9.1970, and that he was in lawful possession of 'A' & 'B' schedule property and the alleged interference of defendants.
12. Alternative relief is concerned, "whether plaintiff can claim such relief;" is the dispute. He had claimed right of easement over 'B' schedule property beneficial to adjacent 'A' schedule property, which goes to very root of the suit. Hence, at this stage, for the description of suit property, the documents and oral evidence on record placed by parties to suit, to substantiate their rival claims etc., are to be considered and appreciated about their relevancy and proof of the same, with due consideration of cordial principle of law that "documentary evidence shall prevail over the oral evidence"
and that, "plaintiff to prove the case pleaded in pursuance of 12 O.S.No.2914/2012 plaint and not to take shelter of the weakness of the defendant in proof of their case".
13. As because of death of Original plaintiff, during pendency of the suit his Lrs were stepped into sues of original plaintiff and proceeded with the case, and that unfortunate original plaintiff deposed on 25.7.2013 as P.W.1 and relied upon Ex.P.1 to P.16, and noting the absence of defendants representation, it was taken as cross- examination of P.W.1 as nil, and thereafter his death was reported. Because of his death his wife i.e. plaintiff 1(a) presented her affidavit as examination-in-chief of P.W.2, reiterating the paint averments referring Ex.P.1 to P.16; and relied upon the documents Ex.P.17 to P.27 and one independent witness P.W.3 who deposed about plaintiffs acquisition of title, seeing of approved layout and formation of site and that schedule 'A' & 'B' properties formed one unit, and that there is no C.A.site.
14. Description of suit 'A' & 'B' schedule properties are reproduced below for identification and better under standing.
13 O.S.No.2914/2012
Schedule 'A' property "All that piece and parcel of the property bearing site No.1, formed in private layout of Sy.No.470/2 of Kempapura Agrahara village, now coming within the jurisdiction of Corporation B.B.M.P. Division Old No.21, New No.125, West of Magadi Road, chord Road, known as MRCR Extension, measuring East to West 29 ft on the northern side and 30 feet on the southern side and North to South 60 feet including a triangular portion of land appurtenant to the land conveyed measuring 850 sq.ft. within the boundary namely East by Site No.2, West by Halla (storm water drainage), North by Road and South by site No.12. In all Western side the site situate up to the Halla (Storm water derange) included in the site No.1".
Schedule 'B' property "All that piece and parcel of the triangular piece of land measuring 850 sq.ft. lying on the western side of the schedule 'A' property within the boundary of the schedule property 'A' property maintained as a garden. This portion of the property is up to the edge of the storm water drainage on the western side of the schedule 'A property".
schedule 'B' property is in a triangular shape.;
15. P.W.2 referring the documents has deposed reiterating the plaint averments. They were referred by the deceased plaintiff at Ex.P.1 to P.16; referring some other documents, she has spoken bout the title and possessory right over the schedule A' & 'B' properties and exclusive enjoyment of schedule 'B' property, as an as absolute property forming part of schedule 'A' property. Ex.P.1 is the certified copy of the sale deed dated 8.10.1978; P.1(a) is the typed copy of Ex.P.1; Ex.P.2 is the certified copy of the Will dated 28.2.1975; P.2(a) is the typed copy of Ex.P.2; Ex.P.3 is the certified copy 14 O.S.No.2914/2012 of the plan obtained by the deceased plaintiff from BDA. It shows that the triangular piece of property forming part of schedule 'A' was in possession of the deceased plaintiff; Ex.P.4 is the certified copy of the sale deed dated 3.8.1972; P.4(a) is the typed copy of Ex.P.4; Ex.P.5 is the khata extract dated 8.11.2005; Ex.P.6 is the khata certificate dated 8.11.2005; Ex.P.7 is the tax paid receipt; Ex.P.8 is the copy of the sanctioned plan; Ex.P.9 is the copy of the notice issued under Section 482 of the KMC Act Ex.P.10 is the postal receipt; Ex.P.11 is the postal acknowledgment; Ex.P.12 is the certified copy of the judgment passed in O.S.No.1030/2005; The information received from the RTI and they are at Ex.P.13 to P.16; Ex.P.17 is the death certificate of the deceased plaintiff; Ex.P.18 and P.19 are the tax paid receipts; Ex.P.20 is the layout plan; Ex.P.21 to P.25 are the photos and C.D. Ex.P.27 is the certified copy of the set photos and C.D. (originals are produced in O.S.No.1030/2005). These documents coupled with the version of P.Ws.2 and 3 are evidencing the plaintiff's ownership, possessory right and enjoyment over schedule 'A' & schedule 'B' property. 15 O.S.No.2914/2012
16. In connection with interference P.W.2 has referred Ex.P.9 the statutory notice. It is also pertinent to note that regarding the earlier suit filed by the plaintiff in O.S.No.1030/2005 before 27th Addl. City Civil Judge. The certified copy of the judgment and decree of which are produced at Ex.P.12. Ex.P.13 to P.16 are the information secured by applying before the competent authority under Right to Information Act, pertaining to the suit schedule property. From these documents and version of P.Ws.2 and 3 and also contents of written statement, plaintiffs title, possession have been disputed. It supports the interference. From these documentary and oral evidence of PWs.2 and 3 the initial burden is discharged by the plaintiffs about ownership over schedule 'B' property it forms part of schedule 'A' property.
17. Original owner's title and interest over entire agriculture land is not disputed. So also layout formed by the owner namely Puttalingegowda the real title holder. Sale of site No.1 to late plaintiff is under Ex.P.1. The sale deed with sketch Ex.P.20, being of the year 1978, is undisputed. This sale deed was not declared as null and void, with due process 16 O.S.No.2914/2012 of law. This 30 years old document Ex.P.1 (from 1978 to 2012) with Ex.P.20 and partaken as public document for being registered in the office of Sub-Registrar ( a public office), before whom, a private docu ment was got duly registered. So, it has evidentiary value. It was sale of revenue site under approved layout plan of the year 1970. Now the defendants cannot take defence without getting sale deed declared void. The contents of Ex.P.1 and 20 are true. Defendants estopped from disputing sale deed. Even in earlier suit also they failed to challenge it as not a genuine and to be declared as void. From the contents of these undisputed and unrebutted documents Ex.P.1, P.20 supporting plaintiff, disclosed that they have discharged initial burden to prove their title over schedule 'B' property. Ex.P.1 disclosed the area purchased and its schedule made it clear that it had extended till Nala (implies that schedule 'B' property inclusion) and it read thus:
Schedule Site No.1 in private layout of Sy.No.470/2 of Kempapura Agrahara Village situated in Corporation division No.21 in West of Magadi Road, Chord Road, measuring East to West 30'+29'/2 and North to South 60 feet bounded on East by site No.2, West by Halla, North by Road and South by Site No.12. In the western side the site situated upto the halla is included to the site No.1.17 O.S.No.2914/2012
18. So, now it is the defendant to substantiate defence to justify their claim over 'B' schedule property, as C.A. site and B.B.M.P. has exclusive right over it. DW.1 Asst. Engineer B.B.M.P. Vijaynagar Bangalore. (Note: In view of the order dated 21.4.2016 exhibits which are marked twice in respect of defendants documents, as Ex.D.1 and D.2. Hence, they are rectified as Ex.D.1, D.1(a), D.1(b) and D.1(c) and same has been taken into consideration at the stage of passing of judgment). Ex.D.1(a) the photograph, Ex.D.1(b) Copy of Gazette, Ex.D.1(c) Portion in Ex.D.1(b), certified copy of sketch, Ex.D.2 Copy of property Register extract, Ex.D.3 attested copy of survey sketch; Ex.D.4 Rough sketch of schedule 'B' property; Ex.D.5 Photograph of schedule 'B' property and Ex.D.5(a) C.D. It is evident that schedule 'B' property was not acquired by the government or the Corporation or BDA, with due process of law.
19. Supporting the arguments the learned counsel for the defendant relied upon the following citations:-
i) AIR 2008 Supreme Court of India PAGE 2033- Where a cloud is raised over plaintiff's title and plaintiff does not have possession, suit for mere declaration is not maintainable.
ii) 2007 (1) KCCR 235- -Specific Relief Act, 1963 - Section 34 and 38 -
where the plaintiff is out of possession of the land does not seek relief for possession a mere suit for declaration is not maintainable.
iii) 2004(1) KCCR page 662 - Pleadings and proof - Whenever the party approaches the court for relief, based on the pleadings and 18 O.S.No.2914/2012 issues, he has to prove his case. A suit has to be decided based on merits and demerits of the party, who approaches the court. Weakness of the defendant cannot be considered as a trump card of the plaintiff.
iv) 1998 (4) Supreme Court Cases 539 - Specific Relief Act - plaintiff instead of proving his case, fully cannot take advantage of weakness in defendant's case.
20. With due respect to the said decisions the guidelines and legal point to be considered by the courts of law in this particular case i.e., whether there is any cloud raised over the plaintiffs title and whether the plaintiffs have no possession over the suit schedule property and whether the plaintiff has taken shelter of defendants weakness to claim his/their title and possession etc. If these are duly established by the defendants then the plaintiffs will be out of court, on the ground that, "without relief of possession mere declaration suit, basing on weakness of the defendants, it does not sustain and liable to be dismissed".
21. At this juncture, the legal aspect pertaining to the alternative prayer to be considered about right of easement over 'B' schedule property. It is specific case which has been brought on record that the deceased plaintiff has purchased property i.e. site No.1 (sale deed) which was and is with boundaries described and it was layed without due sanction of layout plan, by competent statutory authority much prior 19 O.S.No.2914/2012 to 40 to 45 years back. Even at the time of filing of earlier suit of the year 2005, during which more than 30 years were lapsed. Plaintiff all the while asserted absolute title and possessry right over entire suit 'A' & 'B' schedule property forming one unit in view of laying of plot as whole and its sale by the original owner in favour of deceased plaintiff. Defendants have not claimed ownership over 'B' schedule property in the suit of the year 2005, and as because plaintiff had claimed possession of more than the area purchased under Ex.P.1. The excess area was asserted as "margin land" measuring 65 feet 30 feet and 52 feet on the north western side and that the plaintiff had possession. This portion of land being asserted by defendants also, it is contended that, the public were using it to dump garbage. It refers to "margin land" shown in the said suit by red colour in the sketch.
22. The suit claim seeking declaration of easementary right is not against the real owner of the property suit site sold to the plaintiff, admitting their ownership & under sale deed Ex.P.1 enjoying 'B' schedule property as of granted right of easement against the real owner. Recitals as referred in the sale deed is referring to the entire property including the triangular shaped property i.e. 'A' & 'B' property. It is not for 20 O.S.No.2914/2012 beneficial enjoyment of 'A'. But it is absolute sale of the entire property as site No.1. The deceased plaintiff did not admit at any point of time, the ownership of defendants or the government, who have been claiming it as C.A. site. But he claimed absolute owner of the schedule 'B' property. So, he could not claim easement right over his/their own property. It is against the law of easement. In case of easmentary/right the surveint owner and dominant owner must be deferent tenements, to claim their dominant heritage, over the disputed property. So on this legal point deceased plaintiff /plaintiffs cannot claim alleged easement right over their own property.
23. The learned counsel for the defendants has pressed upon the pleading of the plaintiff in connection with the claim of the plaintiff with reference to ownership over the schedule 'B' property and referred the issue pertaining to the ownership of plaintiff thereupon based on the layout plan dated 9.9.1970, approved by BDA and specifically advanced his arguments that "for declaratory relief regarding schedule 'B' property the plaintiff shall have to produce the material and relevant documents proving that it is the part and parcel of schedule 'A property, as per the plan dated 9.9.1970 and referred the evidence of P.W.1 and 2 stating that, they have not produced any document to show when B.B.M.P. had conveyed to the 21 O.S.No.2914/2012 deceased plaintiff the schedule 'B' property in terms of the layout plan dated 9.9.1970 approved by the BDA; Even there is no document as to when BDA has conveyed schedule 'B' property in term of layout and hence in the absence of such material documents, the plaintiff is not entitled for the relief of declaration of title in respect of schedule 'B' property, as the plaintiffs have failed to prove their ownership thereupon and . even during the course of arguments on merits of the case, the present plaintiffs have filed application for recalling and reopening of the case and filed layout plan as per Ex.P.20 stating that it has been issued by BDA".
It is true that on perusal of Ex.P.20 there is no seal or signature of BDA approving it, and it is only a sketch furnished by the plaintiff before the Sub-Registrar along with the sale deed draft and the Sub-Registrar has put the seal and signature on Ex.P.20. But Ex.P.20 is part and parcel of Ex.P.1. It has not been issued by BDA. Hence, for this reason defendants learned counsel further argued that Ex.P.20 is fabricated and concocted document; Therefore, referring it as sanctioned plan dated 9.9.1970 the deceased plaintiff did not acquire right, title or interest over the schedule property". Thus, on this count it has seriously disputed Ex.P.20 as not a genuine document.
22 O.S.No.2914/2012
24. The learned counsel for the for the plaintiff has specifically argued with support of the said title deeds of the deceased plaintiffs and also the plaint averments and the permission granted for construction of building etc. that, because of sale of property under title deed (Ex.P.1) by the erstwhile owner by laying plots (sites) and it was in favour of the deceased plaintiff and it shall prevail regarding the boundaries and extent of area sold to the plaintiff and though there is reference regarding the total extent of area, but the settled law is that, "boundaries shall prevail over the measurement/extent of area". Hence, the extent of area cannot be considered for ascertainment of the plaintiffs ownership over the entire property purchased and it shall include schedule 'B' property also. Therefore, the schedule 'B' property measuring 850 sq.ft. to be considered as it has been approved by the C.A. site. Hence, Ex.P.1 the sale deed is sale of property inclusive of schedule 'B' property and therefore, it is referred up to Halla (Nala) which includes open space triangular shaped schedule 'B' property. For claim over the property, the plaintiff has explained the extent of area in respect of schedule 'B' property, which is also referred to in the sanctioned plan. Even, when the case is posted for judgment, 23 O.S.No.2914/2012 the plaintiff tried to file application referring the copy of the sanctioned plan of the year 1970 i.e. the layout plan approved dated 9.9.1970. However, the prayer has been rejected with reference to recalling of stage and to permit the plaintiffs to adduce the evidence in connection with the layout plan dated 9.9.1970, since the said sale deed and sanctioned plan which are on record. They are about more than 30 years old documents being not disputed at any point of time by the defendants or any other persons competent to challenge the same. Even it is evident that, without mentioning the extent of area, BBMP and concerned the then Municipal Authority have assessed the property Tax and deceased plaintiff has paid it periodically. It has therefore, presumptive value that the property tax received was towards property purchased by him, which includes 'B' schedule property also. Thus, discloses the right of the plaintiffs over the schedule 'B' property. Therefore, arguments put forth by the learned counsel for the defendants that, "the plaintiff has given specific measurements in the earlier suit in O.S.No.1030/2005 regarding the margin land, claiming possession over entire property and shown the different measurements, which is not tallying with the measurements of 'B' schedule property described in the 24 O.S.No.2914/2012 present suit, referring it as triangular shape and therefore, there is no specific claim over the identified property and no decree can be granted in connection with the margin land, as it is belonging to the defendants (BBMP) and it is kept for public purpose i.e., civic amenity site" etc do not sustain.
25. The learned counsel for the defendants referred the judicial proceedings and judgment in O.S.No.1030/2005 and the deposition of P.W.2 dated 8.7.2014. It is also an admitted fact that the said property referred to in the said suit and the property adjacent to schedule 'B' property are referred as the margin land. The property site No.1 purchased by the plaintiff is from one Ningegowda. No doubt in the said suit O.S.No.1030/2005 the extent of area of schedule 'B' property described as 60 feet and 22 feet, 36 feet and 52 feet on the four sides shown by letters ABCDE and in the present case schedule 'B' property described as its measurement 850 sq.ft. During the cross-examination of P.W.2 dated 8.10.2014, about the measurement of the schedule 'B' property she referred to as 20'x60' feet. The learned counsel for the for the defendant has argued specifically that, "the measurement as contended by the plaintiff in the earlier suit, had been admitted during 25 O.S.No.2914/2012 evidence of P.W.2 as 29'x60', it woks out 1740 sq.ft. and thus their claim does not tally with the present suit schedule property in connection with the extent of area as described 850 sq.ft. and that there is no document in respect of schedule 'B' property to substantiate either it was measuring 29'x60' or 850 sq.ft. as schedule 'B' property. Hence, the plaintiffs are not entitled for the declaratory relief with reference to their title and interest over the schedule 'B' property". Thus, referring these as material discrepancies and contradictions the learned counsel for the for the defendants has argued highlighting these details of property as claimed by the plaintiffs. But the court has to consider the real state of affairs, what was claimed in O.S.No.1030/2005 & In the present case though it was dismissed on 18.10.2011; No doubt, it was mere injunction suit filed by the deceased plaintiff claiming the right over the property and measurement claimed as part and parcel of 'A' schedule property. But further more he claimed possession over margin land adjacent to it, which is independent portion. So, the relevant portion of reasoning and in Ex.P.12 being very import (the description of the suit schedule properties therein), are as follows: 26 O.S.No.2914/2012
DESCRIPTION All that piece and parcel of western portion of the House property bearing No.1/32, BMP Ward No.35/Marenahalli, Lingaiah Layout, 16th Main Road, MRCR Vijayanagar, Bengaluru-560 040, in a Triangular shape, measuring on the Eastern side: 60 feet and 22 feet, 36 feet, 52 feet within the boundaries of the letters ABCDE in the rough sketch, coloured green along with the marginal land on the Northern side, measuring 52 feet, 30 feet and 65 feet in Triangular shape, coloured red and commonly bounded as follows:
East by : House property of the plaintiff,
West by : Drain and private property beyond it,
North by : Road,
South by : Site No.12.
26. The relevant portion of judgment in that suit
O.S.No.1030/2005 read thus:
"There is no specific boundaries or demarcation showing the marginal land adjacent to the west and site No.1. The katha in respect of suit schedule property is not standing in the name of plaintiff i.e., in respect of marginal land. The sale deed dated:20-2-1975 executed by Jalaja in favour of Puttalingamma, the measurement of Triangular site and site No.1 is separately mentioned. Therefore, it is not an intention of the plaintiff to purchase the site and also intention of vendor of plaintiff to sell the site. Thus this marginal land was excluded. It is denied that nobody muchless plaintiff is in possession of said Triangular site. It is the defendant who are in possession of the said property. It is making use of the said marginal land for the use of general public and in order to provide hygienic atmosphere and diseases, the defendants have cleared the debries from the said property. The allegation that the marginal land is in Triangular shape is denied. The plaintiff is owner of 27 O.S.No.2914/2012 the Triangular site and sale deed of the plaintiff does not include the marginal land".
"He has kept the land for more than 25 years knowing fully well that he has nothing to do with Triangular site and has not exercised any right over the same".
"It is marginal land according to the defendants. Certain dumping of materials or garbages being seen in the photographs. It is not denied by the plaintiff. So, in my considered view, as it is a suit for bare injunction, unless the plaintiff proves his title over the said marginal land by producing relevant documents, it cannot be said that the plaintiff is able to establish his case with legal evidence".
Thus on these and for the reason other than these as discussed in the said judgment Ex.P.12 it had concluded and adjudicated finally that, "So, if all these factual features read together, plaintiff is unable to prove his exclusive possession over the marginal land, which is in Triangular shape portion. When he is unable to prove his possession, question of interference by the defendants do not arise at all. Whereas, defendants are able to prove that, this marginal land is used as a waste pit and in order to keep the surrounding clean and to avoid spreading of diseases, the defendant has cleared the debris. Therefore, the plaintiff is not at all entitled for equitable right in respect of the property unless he proves the title over the same".
28 O.S.No.2914/2012
Thus, it has been duly considered about the clear admitted facts on the part of defendants about the property forming part of 'A' schedule property i.e. triangular shaped, shown by green colour by letter A, B, C, D, E, not identifying it as margin land, and this property is nothing but schedule 'B' property described in this present suit and it is independent to that of the margin land shown in the "red" colour with measurement 52 feet 30 feet and 65 feet part of schedule 'A' property.
27. In support of his arguments, the learned counsel for the defendant has relied upon the decision reported in AIR S.C. page 2033 and further argued that "as per Ex.P.12 judgment and decree in O.S.No.1030/2005, the measurement of the schedule 'B' property (triangular shaped portion) shown at page 5 of the judgment is 65 feet on the northern side and 30 feet on the western side and 0 feet on the eastern side. Plaintiff in this suit has shown the measurement of the schedule 'B' property as 850 sq.ft. and the measurement shown in Ex.P.12 O.SNo.1030/2005 as 65 feet on the northern side and 30 feet on the western side and 0 feet on the eastern, is totally different and as admitted by the plaintiff, the plaintiff has not produced the sale deed executed by Linge Gowda in respect of the schedule 'B' property (marginal land)".
29 O.S.No.2914/2012
28. Therefore, he argues further that, in view of the findings referred above, the plaintiff has utterly failed to prove the title and possession over the schedule 'B' property (margin land). The plaintiff has not challenged the judgment and decree before the High Court of Karnataka by filing the appeal and the findings and decision given in the said suit that the plaintiff is not in possession of the suit schedule property and on merits the said suit came to be dismissed on 18.10.2011. Therefore, by virtue of finding on the said decision the defendants have successfully established that the plaintiff is/was is not in possession of schedule 'B' property. Hence, he is not entitled for seeking relief of possession is not maintainable as per Sections 34 and 38 of the Specific Relief Act. In support of his arguments he has relied upon the decision reported in 2007 (1) KCCR 235, wherein it is held that:
"where the plaintiff is out of possession of the land and does not seek relief for possession a mere suit for declaration is not maintainable And that, Supreme Court of India in Air 2008 Page 2033 clearly held that a cloud is raised over plaintiff title and he does not have possession, a suit for declaration and possession, is the remedy. When the plaintiff is not possession, suit for mere declaration is not maintainable".
29. On the contrary, the learned counsel for the plaintiff has rightly referred the said judgment Ex.P.12 and title deeds along with the revenue records and put forth the arguments with reference to the acquisition of title to the extent of entire 30 O.S.No.2914/2012 area inclusive of schedule 'B' property and confirmation of title by virtue of granting sanctioned plan by the competent authority i.e. BDA and the defendants who are representing the B.B.M.P. also cannot dispute the title and possessory right of the plaintiff. As discussed above, it is clearly evidencing that the disputed property under Ex.P.12 was shown by red colour, the schedule 'B' property was shown in the green colour, with letters A, B, C, D, E and it was not at all the subject matter in dispute, as there was no defence on the part of defendants in that suit that, this green coloured area (schedule 'B' property in this suit), was also the margin land. So the finding is only with reference to margin land and not green coloured schedule 'B' property. It has no application to schedule 'B' property. So possession of plaintiff was protected by passing of order that plaintiff had failed to prove his lawful possession over margin land. Hence, plaintiffs assertion of possession is sustainable under law. So, the said decisions do not come to the aid of the defendants.
30. The learned counsel for the defendants have referred the Gazette notification Ex.D.1(b) and other documents and argued that "Gazette notification Ex.D.1(b) relevant portion at page - 535 annexure-3 to the notification No.UDD 351 MNU 31 O.S.No.2914/2012 2004, dated 15.4.2011. According to the said notification, sl.No.11 at page 537 i.e. of Ex.D.1(c) clearly shows that C.A. site (schedule 'B' property) belongs to B.B.M.P. and the defendant produced the property register extract and also sketch (i..e Ex.D.2 to D.4) in respect of schedule 'B' property".
Ex.D.2 extract of Register showing the properties of Corporation which is referred as C.A. site adjoining to 16th main road. It is dated 14.6.2010 and total extent shown is 212.80 sq. meters. It does not disclose to whole property. The alleged C.A. site is adjoining. Ex.D.3 & D.4 are the sketch of the alleged C.A. site. But it does not tally with the boundaries explained in Ex.D.2 and Ex.D.1(c). Though there is reference in Ex.D.1(c), D.2 to D.4 about location of "private properties" to the east and south. But to whom these properties were belonging and what is the extent of area of said private property etc., are not forthcoming. They do not tally with the sketch and description of the property referred in the earlier suit O.S.No.1030/2005 (Ex.D.12). Except Ex.D.1 to D.4 the defendants have not produced any material evidence to show that, how alleged "margin land" inclusive of schedule 'B' property was converted from agricultural land in to civic amenity site at the earliest point of time, i.e. at the time of approval of layout of the year 1970. They are being 32 O.S.No.2914/2012 competent persons having custody of such authenticated documents and they ought to have produced the same to rebut the plaintiffs claim over the schedule 'B' property disproving the right, title and interest thereupon acquired through sale deed of 30 years old of the year 1978 through which lawful possession was taken, and approved sanctioned plan of the year 1981 for construction, identifying it as part and parcel of schedule 'A' property. Hence, Ex.D.1 to D.4 which are came out during pendency of O.S.No.1030/2005 did not create any right and interest as C.A. site over schedule property. It was not proved that with due process of law, with due notice to the plaintiff, this schedule 'B' property has been notified. Hence, it is nothing but claiming right, title and interest as C.A. site over plaintiffs private property. Plaintiffs have stated that they kept it open for beneficial use of their schedule 'A' property. So on being kept open, it does not give any alleged right to the defendants. Such claim through Ex.D.1 to D.4 is illegal and interference with the plaintiffs peaceful possession and enjoyment of suit schedule 'B' property. Such claim is without due process of law. What is held in the earlier suit (Ex.P.12) is the "margin land" used by alleged public for dumping garbage and not upon the 33 O.S.No.2914/2012 schedule 'B' property. Apart from this the settled position of law is that, in case of vacant space, "possession shall follow the title". Plaintiffs have proved their better title upon schedule 'B' property, which is vacant space kept for the use of plaintiffs. Hence they have control over it, but defendants failed to prove that it was used by the public for said purpose. So, the said judgment does not come to the aid of defendants to claim it as C.A. site. So the plaintiffs possession shall have to be protected against unlawful claim of defendant over schedule 'B' property. So, Ex.D.1 to D.4, D.1(a) to (c) do not come to their aid to justify their claim as C.A. site and no interference on their part. Thus, on this count also plaintiffs have proved their absolute title and possessory right over schedule 'B'. property. ( Ex.P.1, P.2 and P.4 title deeds, Ex.P.3, P.8 and P.20 the plans) Therefore, the all title deeds referred to by the plaintiff contain the entire schedule '0A' & ''B property showing the ownership as site No.1 and flow of title is since from the year 1968, which can be consolidated and explained that, "the schedule property which is Sy.No.470/2 was belonged to one Sri B.Puttalinge Gowda, who purchased the said site from one Sri B.Hanumanthe Gowda through a deed of sale dated 23.10.1968 and which was in his possession thereafter was one of the sites formed in Sy.No.470/2 of Kempapura 34 O.S.No.2914/2012 Agrahara, Bangalore North Taluk and it was included in this Corporation Division No.21 at Hosahalli Chord Road Extension, Bangalore; the sites were formed in the private layout in the said Sy.No.470/2 and it was converted as building sites as per the order of the Tahsildar, Bangalore North Taluk, as per his Order NO.ALN.SR.1839/127/68/ DR 248/66, dated 24.4.1969 and the layout plan so formed were also approved by CITB, Bangalore. The said site formed in Sy.No.470/2 comes in Hosahalli Chord ?Road Extension and has been allotted to Sri B.Lingegowda who is described as power of attorney holder and possessor from the CITB, Bangalore and issued a possession certificate to the said Sri B.Lingegowda vide Possession Certificate No.CITB.AE-E-P-L/138/75-76, dated 7.8.1975. The said site was given by Sri Puttalingegowda by way of deed of settlement dated 3.8.1972 to Smt.A.Jalajamma and the said deed registered as No.1637/72-73 in Book No.1, Volume No.349 at paged 88 to 89 in the office of the Sub-Registrar, Srirampuram, Bangalore. The said Smt.A.Jalajamma who become owner of the schedule site by way of settlement deed dated 3.8.1972 has sold the schedule site to Smt.Puttalingamma wife of B.Lingegowda and the said deed of sale registered as document No.4018/74-75 in book No.1, Volume No.453 at pages 69 to 71 in the office of the Sub-Registrar, Srirampura, Bangalore. The layout charge to the CITB in respect of the property has also been paid as per No.192 dated 9.9.1970. The said Smt.Puttalingamma, who as she become full and absolute owner of the schedule site in the above said manner has made a will in faovur of Sri B.L.Lingegowda, who is her husband. The said will also been 35 O.S.No.2914/2012 registered as No.26/78-79 in Book No.3, Volume No.7,. at pages 222 to 224 in the office of the Sub-Registrar, Srirampuram, Bangalore and whereas the said Puttalingegowda died on 16.7.1975 and thereafter by virtue of the said will the schedule site came to be devolued on Sri B.Lingegowda and the said B.Lingegowda thus become the full and absolute owner in the schedule site". It was sold to the deceased plaintiff in the year 1978.
31. It is rightly highlighted by learned counsel for the plaintiff about the asserted area in the earlier suit O.S.No.1030/2005, was green coloured in the sketch i.e. present schedule 'B' property showing the scalene triangle i.e. 36 feet, 52 feet and 49.32 feet and hence the total sq.ft comes to by applying formula that Scalene triangle (all the sides are of different lengths) FORMULA (Perimeter) S=(a+b+c)/2 S=137.32/2 36 O.S.No.2914/2012 S=68.66 Area of scalene triangle = √S*(s-a)*(s-b)*(s-c) = √68.66*16.66*19.34*32.66 =√722522.617 Final area =√850.01 Thus, the claim of plaintiff over suit schedule property did not differs in the extent of area and hence schedule 'B' property is measuring 850.01 sq.ft. as claimed in the plaint and is identifiable.
31. The plaintiff has proved the ownership over schedule 'B' property as it is confirmed under the title deeds and building sanctioned plan in 1981, and the layout plan dated 9.9.1970 under which the extent area was identified by their boundaries and because of its shape it has made it clear in the schedule to the sale deed. The possession and enjoyment of the suit schedule property as on the date of filing of the suit for the said reasons has been proved. There was interference by the defendants as they have denied the plea of plaintiff and version of P.W.2 about peaceful possession and enjoyment of the suit schedule property. But they have contended that the suit schedule 'B' property referring it to as the C.A. site, it is 37 O.S.No.2914/2012 meant for public purpose. It is claim thereupon as margin land. In the earlier suit (Ex.P.12) schedule 'B' property and "margin land" were different and it was held that plaintiff was not in lawful possession over the margin land. So it does not refer to schedule 'B' property. It was not a subject matter of suit. So, the said judgment did not affect the plaintiffs lawful possession. Now because of defendants interference claiming it as civic amenity site this suit is filed. But failed to substantiate about their absolute control and possessory right thereupon. Hence, such denial is illegal it is certainly amounts to interference with the plaintiffs schedule 'B' property. Apart from this I would like to refer the what is a C.A. site and its significance.
P.Ramanath Aiyer - the encyclopedic law dictionary at page 324 - II edition 1997, which deals with For amenity to be civic amenity the government should notify the same. If the government does not specify whatever may otherwise be public convenience, will not be a civic amenity under Section 2(b)(bb) civic amenity means amenity provided by civic authority and excludes amenity provided by person or persons other than a civic authority (Muddappa Vs State of Karnataka AIR 1990 Kar 86, 95 (Bangalore Development Authority act (1976) 19(4).
32. Such notification must be at the initial stage only, but after allowing the plaintiffs to enjoy it as own private property by its owner under the sale deed of more than 30 years, and 38 O.S.No.2914/2012 assessing it for tax by the authority etc., now its claim at this juncture without acquisition with due process of law, is not justifiable the defendants cannot claim it as C.A. site for the first time in 2011 under Ex.D.1, 1(a), (c), 2 to 4.
33. For the above reasons, on the facts and circumstances discussed elaborately, it is clear proof of plaintiff's title, right and interest over the schedule 'B' property. Possession is also lawful over the same. Their claim is as C.A. site to the extent of entire property inclusive of schedule 'B' property is illegal. Hence, the plaintiffs as LRs of original plaintiffs are entitled for the reliefs as prayed for with reference to the title and injunctory relief. However, the defendants cannot be restrained permanently, as claimed for by the plaintiff regarding protection of lawful possession and injunctory relief as these defendants are representing the Statutory Authority, they have special powers and duties under the statue KMC Act. The restricted relief against the defendants can be granted. However, the defendants can proceed if it is necessary to be considered for development scheme as C.A. site by following due procedure of law. Therefore, such due procedure whether followed or not has not been specified nor 39 O.S.No.2914/2012 proved by the other laws and rules and regulations. Accordingly, issue Nos.1 and 3 are answered in the affirmative and issue No.2 is answered as does not survive for consideration.
34. Issue No.4:- In view of the above discussion and conclusion arrived at, this court has hereby proceeded to pass the following:
O R D E R Suit of the plaintiff, is hereby decreed in part.
It is hereby declared that the B schedule property is a part and parcel of the A schedule property, which are purchased as one unit, by the original plaintiff, under the registered sale deed dated 9.10.1978 and that entire schedule 'A' & 'B' properties forming one unit, was the site No.1, sanctioned/approved under layout plan by BDA, Bangalore, on 9.9.1970, and thereby ownership of deceased plaintiff had been confirmed, even by way of sanction plan for construction, in the year 1981 and now the present plaintiffs, as legal heirs of deceased plaintiff have acquire right, title and interest in the schedule 'A' & 'B' properties forming one unit.
The defendants are hereby restrained from taking possession of schedule 'B' property from the plaintiffs and to do any act thereupon without due process of law.
Parties are directed to bear their own costs.
Draw the decree accordingly.
(Dictated to the Judgment Writer, transcribed by him, corrected and then signed and pronounced by me in the open court on this the 21st day of April, 2016) 40 O.S.No.2914/2012 (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff:
P.W.1 Venkataramana (deceased) P.W.2 Smt.Pushpalatha P.W.3 Mohan
List of the documents marked for the plaintiff:
Ex.P.1 Certified copy of the sale deed dated 8.10.1978;
P.1(a) Typed copy of Ex.P.1; Ex.P.2 Certified copy of the Will dated 28.2.1975; P.2(a) Typed copy of Ex.P.2; Ex.P.3 Certified copy of the plan Ex.P.4 Certified copy of the sale deed dated 3.8.1972; P.4(a) Typed copy of Ex.P.4; Ex.P.5 Khata extract dated 8.11.2005; Ex.P.6 Khata certificate dated 8.11.2005; Ex.P.7 Tax paid receipt; Ex.P.8 Copy of the sanctioned plan; Ex.P.9 Copy of the notice issued under Section 482 of the KMC Act; Ex.P.10 Postal receipt; Ex.P.11 Postal acknowledgment;
Ex.P.12 Certified copy of the judgment passed in O.S.No.1030/2005;
Ex.P.13 to P.16 The information received from the RTI Ex.P.17 Death certificate of the deceased plaintiff;
Ex.P.18
41 O.S.No.2914/2012
and P.19 Tax paid receipts;
Ex.P.20 Layout plan;
Ex.P.21
to P.25 Photos and C.D.
Ex.P.26 C.D.
Ex.P.27 Photos and C.D. produced in O.S.No.1030/2005.
List of the witnesses examined for the defendants: Nil List of the documents marked for the defendants:
Ex.D.1 Certified copy of the sketch
D.1(a) Photograph,
D.1(b) Copy of Gazette,
D.1(c) Portion in Ex.D.1(b)
Ex.D.2 Copy of property Register extract,
Ex.D.3 Attested copy of survey sketch;
Ex.D.4 Rough sketch of schedule 'B' property;
Ex.D.5 Photograph of schedule 'B' property;
Ex.D.5(a) C.D.
LII Addl. City Civil & Sessions Judge,
Bengaluru.
42 O.S.No.2914/2012