Bangalore District Court
In 1. Smt. G. Geetha W/O T.R. Muniraju vs In 1. Sri Munivenkata Reddy S/O Late N.P on 29 November, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22).
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS.No.2532/2013 C/w OS.No.27133/2012
Dated this the 29th day of November 2021
Plaintiff in 1. Smt. G. Geetha W/o T.R. Muniraju,
OS.No.2532/2013: Aged about 48 years,
Residing at No.5, 8th Cross,
8th Main, Vinayaka Nagar,
'B' Block, Konena Agrahara,
Bengaluru-560 017.
Represented by her
General Power of Attorney Holder
Sri T.R. Muniraju, Aged about 55 years,
Residing at No.5, 8th Cross, 8th Main,
Vinayaka Nagar, 'B' Block,
Konena Agrahara, Bengaluru-560 017.
(Rep by Sri C. Shankar Reddy, Advocate)
V/S
Defendants in 1. Sri Munivenkata Reddy S/o Late N.P.
OS.No.2532/2013: Ramaiah Reddy, Aged about 58 years,
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Residing at No.188, Thubarahalli Village,
Ramagondanahalli Post, Varthur Hobli,
Bangalore-560 066.
2. The Bruhat Bangalore Mahanagara Palike,
Kittoor Rani Chennamma Circle,
Bangalore-560 009.
Represented by its Commissioner.
(Dismissed as per order dated:06/04/2013)
3. Sri P. Pilla Reddy S/o late Muniyappa Reddy,
@ Thotada Annaiah Reddy,
Aged about 81 years, Residing at No.210,
Thubarahalli Village, Ramagondanahalli Post,
Varthur Hobli, Bengaluru East Taluk,
Bengaluru-560 066.
(Rep by Def No.1 Sri. B. Ramesh., Advo, Def No.3-In person)
Plaintiff in Smt. Geetha W/o T.R. Muniraju,
OSNo.27133/2012:- Aged about 48 years,
Residing at No.5, 8th Cross,
8th Main, Vinayaka Nagar 'B' Block,
Konena Agrahara,
Bengaluru-560 017.
(Rep by Sri. Sriramareddy., Advocate)
V/S
Defendant in Sri Munivenketa Reddy S/o Late N.P.
OS.No.27133/2012 Ramaiah Reddy, Aged about 58 years,
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Residing at No.188,
Thubarahalli, Varthur Hobli,
Bangalore-560 066.
(Rep by Sri. B.Ramesh., Advocate)
OS.No.2532/2013 OS.No.27133/2012
Date of Institution of the suit 30/03/2013 09/11/2012
Nature of the (Suit or pro-
note, suit for declaration and Declaration &
possession, suit for Injunction
Injunction
injunction, etc.)
Date of the commencement
of recording of the Evidence 13/09/2017 13/09/2017
Date on which the Judgment
was pronounced. 29/11/2021 29/11/2021
Total duration Years Months Days Years Months Days
08 07 29 09 00 20
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
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:COMMON JUDGMENT:
The plaintiff of OS.No.2532/2013 filed suit against
defendants for declaration and permanent injunction.
The plaintiff of OS.No.27133/2012 filed suit against
defendant for permanent injunction.
2. The brief facts of plaint averments in
OS.No.2532/2013 is as under.
The plaintiff submits that property forming part of Survey
No.33, House List No.78 of Thubarahalli Village measuring 2
guntas 78 square gajas and to the East of the said property there
was a road measuring about 15 feet in width is ancestral property
of M. Jayamma W/o Nanja Reddy. All the revenue records stood
in the name of M. Jayamma and she was exercising acts of
ownership on said property and she sold said property to M.D.
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Krishnamurthy Rao under registered sale deed on 18/02/1981
and put him in possession of the said extent of land on the date
of execution of the registered sale deed. As on date of execution
of said sale deed it was only vacant site and afterwards M. D.
Krishnamurthy Rao got mutated revenue records in his name in
Ramagondanahalli Panchayath and paid taxes of the said site.
That afterwards said M.D. Krishnamurthy Rao executed General
Power of Attorney on 28/08/1989 in favour of T.R. Muniraju in
respect of said property and also executed an agreement of sale
dated 28/08/1989 admitting the receipt of the entire sale
consideration of Rs.12,000/- and also executed an affidavit dated
28/08/1989 which was duly notarized on the same day before the
notary and put him in possession of the said property. That in the
said General Power of Attorney property is described as
Thubarahalli Village Sy.No.33 measuring 1 square gajas out of
the total extent of 2 guntas 78 square gajas owned and possessed
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by M.D. Krishnamurthy Rao and boundaries shown on East:
House of Chowdappa, West: Site belonging to Savithramma in
the same number to an extent of 1 gunta and 39 square gajas,
North: Land of Venkateshappa, South: Property of Buddappa.
The description of the said property is similar to the one given
under the General Power of Attorney. The said T.R.Muniraju
was put in possession of the same and he had erected compound
wall around the property by spending heavy amounts. The said
T.R Muniraju is her (plaintiff) husband and he is aware of the
entire material events that have taken place in respect of the
schedule property. She is unwell recently and doctors attending
on him have advised her rest and hence her husband is
compelled to act as her General Power of Attorney holder. The
said T.R. Muniraju executed registered sale deed of suit schedule
property in her favour on 14/03/2005 for sale consideration of
Rs.80,000/- and put her in peaceful possession and enjoyment of
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the said property. The property described in the said sale deed is
the property bearing No.33, House List Katha No.78 situated at
Thubarahalli Village, Varthur Hobli, Bangalore East Taluk,
within Ramagondanahalli Panchayath Area, Bangalore
measuring East to West 32 feet and North to South 45 feet. The
said property later came within jurisdiction of Bruhat Bengaluru
Mahanagara Palike, Ward No.85. She has improved said
property and she had got her name entered in the revenue
records maintained by the Bruhat Bengaluru Mahanagara Palike
and she has been paying taxes in respect of the same.
Subsequent to property comes within jurisdiction of BBMP and
renumbered as SI.No.86, Old No.67 of Thubarahalli, Hoodi Sub-
Division and her name is appeared in katha records maintained
by said revenue authority. That even though the road that is
situated on Eastern side of the suit schedule property there is 15
feet wide road, the said road is the only access for the plaintiff to
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reach the Bangalore-Varthur Main Road and there is no access to
his property from any other side. On one side the property of
defendant No.1 is situated and on other two sides some private
landowners have raised constructions. That some of neighboring
property owners have encroached upon portion of the said road
and hence at certain points the road does not actually measure 15
feet, but in so far as plaintiff is concerned since it is a vacant site
with fencing there is sufficient road space to the extent of 15 feet
on the Eastern side.
3. The plaintiff further submits that the defendant No.1 is her
brother in law being the elder brother of her husband T.R.
Muniraju. In the general power of attorney dated 28/08/1989 the
Western side property is shown as property of Savithramma, she
is her sister in law, since at that time both her husband as well as
brother in law had purchased sites under 2 separate general
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power of attorneys and the said sites are abutting each other.
That in the sale deed dated 14/03/2005 the Western side property
is described as property of Savithramma now belonging to
defendant No.1/Munivenkata Reddy. That her property and
property of defendant No.1 are situated adjacent to each other. In
fact the defendant No.1 even though in the first instance had got
general power of attorney executed by M.D.Krishnamurthy Rao
in favour of his wife, later he choose to get sale deed in his name
directly from said M.D. Krishnamurthy Rao, the above referred
sale deed came to be executed in favour of the defendant No.1
on 02/11/1989. That the property covered under said sale deed
situated on Western side of suit schedule property, the said
property of defendant No.1 situated on Western side is bearing
Katha No.78, House List No.33 measuring East to West 32 feet
and North to South 45 feet and the same is shown to be bounded
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by East: Property of R. Muniraju, West: Road, North: Property
of Nanja Reddy, South: Property of Buddappa.
4. The plaintiff further submits that west of property owned
and possessed by the defendant No.1 their lies Government road
and there is no any property belonging to P.Pilla Reddy or
anyone for that matter in between the property of the defendant
No.1 and the road. However in order to enhance measurement of
the property belonging to defendant No.1 and in order to avoid
encroachment made by defendant No.1 over portion of plaintiff's
property document styled as release deed is created by defendant
No.1 in collusion with said P.Pilla Reddy and said document is
created to make it look as if there is bit of site property
measuring East to West 6 feet and North to South 45 feet
belonging to the said P. Pilla Reddy even though there existed
none. If at all any such property was available defendant No.1
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would have got same mutated in revenue records and even while
obtaining sanctioned plan the said extent of property is excluded.
In fact said P. Pilla Reddy never owned any such piece of site
property and there were no revenue records standing in the name
of P.Pilla Reddy at the relevant point of time or at any point of
time earlier and the said P. Pilla Reddy was never in possession
of the same and hence P.Pilla Reddy is proposed to be impleaded
as defendant No.3 in the above suit did not have any right, title,
interest or possession over proposed schedule 'D' property and
hence said release deed dated 17/12/2012 allegedly executed by
P.Pilla Reddy S/o Muniyappa Reddy @ Annaiah Reddy is
created document which did not convey any rights or possession
in favour of defendant No.1 and cancelled as property owned
and possessed by plaintiff.
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5. The plaintiff further submits that D. Rajashekar owns site
in the same road adjacent to the suit schedule property bearing
Site no.253 [old No.22] Katha No.63, measuring East to West 40
feet and North to South 44 feet and when the neighbouring
property owner namely Munishamappa and others had
encroached upon said road, thereby resulting in decreasing width
of road from its existing 15 feet, the said D. Rajashekar had filed
suit OS.Nio.2044/2012 on the file of Additional City Civil Judge
at Bangalore for Mandatory Injunction for removal of
encroachment and had also sought for other allied reliefs. Even
though the 'A' schedule property in the said suit has got nothing
to do with the present suit property. However 'B' schedule
property in the said suit is very same 15 feet road claimed by
plaintiff in the present suit. In fact D. Rajashekar relied on sale
deed dated 12/08/1994 and boundary to said sale deed on
Eastern side is shown as 15 feet road and said D. Rajashekar had
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also relied on the sale deed of original owner dated 29/11/1980
and both these sale deeds clearly disclose that there existed right
from date of formation +of the layout 15 feet wide road which
was formed for benefit of site holders on either side of road to
access to reach respective properties ultimately leading to
Varthur main road.
6. The plaintiff further submits that she and defendant No.1
were in good terms with each other till October 2012 and since
she could not frequently visit suit schedule property and there
was no occasion for her to raise any construction in any portion
of the suit schedule property. However since house of defendant
No.1 had become dilapidated he suggested to her that he would
demolish construction and put up fresh construction in portion of
the land owned and possessed by him and she absolutely had no
objection for the same and the defendant No.1 had also agreed
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and promised that he would raise construction within the
measurement shown in the sale deed dated 02/11/1989, under
which the defendant No.1 has purchased the property situated on
the Western side of suit schedule property. However on
06/11/2012 she plaintiff found that defendant No.1 had made
markings on the ground and it clearly indicated that he intended
to encroach upon portion of property owned and possessed by
him towards western side of suit schedule property and which
fell within the property purchased by her after the 15 feet road
and she had absolutely no idea as to why such markings were
made. Immediately she and her General Power of Attorney
holder contacted the defendant No.1 and asked as to why such
markings are made in portion of the property belonging to her,
but defendant No.1 refused to give any proper reply, but as on
06/11/2012 there were no any constructions or there was no any
encroachments made to lay foundation in any portion of the suit
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schedule property. Later she and her husband once again directly
contacted the defendant No.1 and enquired as to why he is
attempting to encroach on portion of suit schedule property, for
which the defendant No.1 claimed that there was no any
intention to encroach upon her property but his workers by
oversight have made markings over the same. She had no reason
to disbelieve the version of the defendant No.1 and hence with
fond hope that everything would be sorted out she and her
husband returned. Later on the following day i.e., on 07/11/2012
in the morning at about 10 a.m., she was informed by some
known persons in the locality that defendant No.1 has started
digging up earth for foundation work in the property belonging
to her, immediately she and her husband rushed to spot and
found that defendant No.1 was not available and when she made
enquiries with workmen as to why markings are still there, said
workers informed to her that defendant No.1 has instructed them
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to dig up the marked portion and lay foundation thereon in order
to raise construction, then she realized that defendant No.1 is
attempting to encroach portion of her property and all efforts
made to convince workers of defendant No.1 at spot failed to
yield any results.
7. The plaintiff further submits that on 07/11/2012 she made
attempts to lodge police complaint against defendant No.1 but
police refused stating that matter is of civil nature and approach
court. Hence she filed OS.No.27331/2012 in the Additional City
Civil Judge at Bangalore, Mayo Hall unit [CCH-22] praying for
the relief of permanent injunction in respect of the suit schedule
property. In the said suit temporary injunction order came to be
granted restraining defendant No.1from interfering with her
peaceful possession and enjoyment over suit schedule property
and said order is extended from time to time and subsequently
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same has been vacated. The defendant No.1 is aware of interim
order granted in said suit. In fact defendant No.1 filed written
statement in the said suit and has contested on merits. Further in
violation of the interim order defendant No.1 has proceeded with
construction activities and hence she filed application for issuing
necessary directions to jurisdictional Police for implementing the
interim order granted by the Court. The said application is also
pending disposal. That in the said suit Court Commissioner was
appointed at the instance of the plaintiff and the Commissioner's
Report is made available to court in which it has been
specifically shown that the construction is put up in violation of
the sanctioned plan and certain encroachments are also made in
the portion of the property belonging to the plaintiff in violation
of the interim order. The plaintiff has filed his objections to the
Commissioner's Report, but the defendant No.1 is sole defendant
in the earlier suit had chosen to accept the Commissioner's
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Report. Without admitting the Commissioner's Report in its
entirety it clearly discloses that construction has been put up by
her in excess of the area owned and possessed by the defendant
No.1 under the sale deed of 1989, Katha has been mutated in the
name of the defendant only to the extent of property owned by
him in the 1989 sale deed and so also sanctioned plan is issued
only to the said extent.
8. The plaintiff further submits the defendant in the said suit
referred in the above paragraph is defendant No.1 in the present
suit and he has in detail aware of the entire proceedings and has
deliberately not disclosed the same before court and he had
managed to obtain the interim order in another suit filed by him
in OS.No.25115/2013 by misleading court in active collusion of
the defendant No.2, which suit is between the defendants No.1
and 2 only and the plaintiff has been left out of the said
proceedings deliberately in order to avoid any contest.
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In fact the defendant No.2 has already issued notices to the
defendant No.1 U/Ss 321(1) and 321(2) of the Karnataka
Municipal Corporations Act and later has issued final notice U/s
321(3) of the said Act. All these material of facts have been
suppressed by the defendant No.1 while he filed suit bearing
OS.No.25151/2013 as against the defendant No.2. The plaintiff
had also lodged complaint before the Bangalore Metropolitan
Task Force attached to the defendant No.2 but the said task force
failed to take any action in this behalf citing pendency of the
civil suit and the defendant No.1 has proceeded further with the
unauthorized construction activities on war footing. In the said
circumstances she had filed an application for impleading in
OS.No.25115/2013 thereby bringing it to the knowledge of this
court the entire sequence of events. The said application is
pending consideration and the said suit is yet to be disposed off.
The defendant No.2 has engaged the services of an advocate by
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is yet to file its written statement. The defendant No.1 has
rendered himself liable to be restrained from making any
further encroachments upon any portion of suit schedule
property or dispossess her from any portion there from without
adopting the procedure and process known to law.
9. The plaintiff further submits that due to the inaction of the
defendant No.2 as against the defendant No.1 for not taking
further action after issuing final notices the plaintiff had to file
writ petition before the Hon'ble High Court of Karnataka at
Bangalore in WP.No.706/2013 and the said writ petition has
since been disposed off with some observations. That the
construction raised by the defendant No.1 is without leaving any
setbacks on all sides and even going to the extent of encroaching
upon a portion of the suit property by falsely claiming that there
is only a 10 feet access road to reach her property. But in reality
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there is 15 feet wide road and the same is supported by records.
Even further attempts of encroachments were made on
17/03/2013 by defendant No.1 and General Power of Attorney
holder of the plaintiff had raised stiff protest consequent to
which the defendant No.1 had to take a quick retreat vowing that
he would bring more number of men and material and would
dispossess her from the remaining portion of the suit property
and further claimed that he know how to handle her in this
behalf. Attempts made by her to take assistance of the
jurisdictional police in this behalf did not yield results as they
failed to come to her aid. That her title over the entire 'A' and B
schedule properties is not disputed by the defendants, however
since 'B' schedule property has been encroached upon and there
are differences between her and defendant No.1 in so far as the
width of the road lying to the East of the suit property in order to
get comprehensive relief and avoid any kind of future
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complications the above suit is filed. Further in so far as the
schedule 'B' property is concerned, the defendant No.1 claims
that it forms part of his property and hence the relief of
declaration is sought, since one of the reliefs sought for is for
declaring that the suit schedule 'C' property is Government road
measuring 15 feet in width the defendant No.2 is proper and
necessary party since the schedule property is at presently
situated within the territorial limits of the defendant No.2 and it
is the defendant No.2 who has been maintaining the same.
10. The plaintiff further submits that he has annexed to the
plaint suit sketch indicating the disputed and undisputed are. The
'A' schedule property is shown in the suit sketch with the
markings as 'A.B.I.C.D.J.A' and is colored in red and includes
both the hatched and unhatched portions and is marked in letter
'A' and 'B' and measures East to West 32 feet and North to South
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45 feet. The 'B' schedule property is shown in the suit sketch
with the markings as 'A.B.I.J.A' and is colored in red and
hatched and is marked in letter B and measures East to West 6
feet and North to South 45 feet. The 'C' schedule property is
shown in the suit sketch with the markings as 'H.D.C.E.F.G.H'
and is colored in blue and measures approximately East to West
15 feet (in width) and North to South 213 feet (in length) and is
marked with the letter 'C'. That she is left with no other
alternative and efficacious and full pledged remedy other than
approaching this Court with the above suit.
11. The plaintiff further submits that cause of action to file
the suit arose on 06/11/2012 and subsequently on 07/11/2012
and subsequently on 17/03/2013 and subsequently. However suit
for bare injunction is filed by the plaintiff against defendant
No.1 in OS.No.271331/2012 on the file of the Additional City
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Civil Judge at Bangalore (CCH-22) in respect of suit schedule
property. The plaintiff prays to decree the suit against defendants
declaring that she is the absolute owner of the suit schedule 'B'
property, as shown in red color and hatched and is marked as
'A.B.I.J.A' in the suit sketch and the same forms part of the 'A'
schedule property shown in the suit sketch and consequently,
grant an order of mandatory injunction directing the defendant
No.1 to demolish the unauthorized construction raised in the
schedule 'B' property and restore possession of the same in her
favour free of all encumbrances. The plaintiff further prays to
declare that the public road situated on the Eastern side of the
suit schedule 'A' property, presently maintained by the BBMP,
running South to North, measures 15 feet in width and
approximately 213 feet in length, i.e., shown as 'H.D.C.E.F.G.H'
in the suit sketch and colored in blue, which is described as the
schedule 'C' property. The plaintiff further prays to declare that
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the alleged registered release deed dated 17/12/2012 allegedly
executed by one P. Pilla Reddy S/o Muniyappa Reddy @
Annaiah Reddy is sham and created document and that the same
is not binding on her and consequently hold that the defendant
No.1 did not get any right, title or possession of the schedule 'D'
property in the above suit. The plaintiff prays for decree of
permanent injunction restraining the defendant No.1 or his
agents, or anyone on his behalf from making any further
encroachments over the remaining portion of the schedule 'A'
property, which property is shown as 'J.I.C.D.J and colored in
red in the suit sketch annexed to the plaint. The plaintiff further
prays for grant of permanent injunction restraining the defendant
No.1, his agents, workers or any one through them from making
any further encroachments over any portion of the schedule 'A'
property which is marked as A.B.I.C.D.J.A' and consequently,
restrain the defendant No.1 from interfering with the plaintiff's
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peaceful possession and enjoyment of the suit schedule 'A' and
'B' properties in any manner, including that of trespassing,
encroaching and causing dispossession of plaintiff there from by
adopting unlawful and illegal methods and without adopting the
due process of law. The plaintiff prays to award costs of the suit.
SUIT SCHEDULE 'A' PROPERTY
All the piece and parcel of property bearing No.33,
house list Katha No.78, later 87 and now SI.No.86,
situated at Thubarahalli Village, Varthur Hobli,
Bangalore East Taluk measuring East to West 32
feet and North to South 45 feet, now coming within
the jurisdiction of Bruhat Bangalore Mahanagara
Palike Ward No.85, which compromises of the
entire red colored hatched and unhatched portions
shown as 'A' and 'B' in the suit sketch and identified
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by the letters "A.B.I.C.D.J.A" the same is bounded
on the East: Road and house of Chowdappa, West:
Property belonging to Savithramma and now
belonging to Munivenkata Reddy the defendant
No.1 herein, North: Property of Venkateshappa,
South : Property of Buddappa.
:SUIT SCHEDULE 'B' PROPERTY:
Portion of 'A' schedule property measuring East to
West 6 feet and North to South 45 feet which is
hatched and shown in red color and marked as
'A.B.I.J.A' and identified by the letter 'B' in the suit
sketch and the same is bounded by East: Remaining
portion of the 'A' schedule property, West: property
belonging to Savithramma and now belonging to
Munivenkata Reddy the defendant No.1. North:
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Property of Venkateshappa, South: Property of
Buddappa.
:SUIT SCHEDULE 'C' PROPERTY:
Road situated on the eastern side of the suit
schedule A property presently maintained by the
second defendant herein ie., Bruhat Bangalore
Mahanagara Palike, measuring East to West 15 feet
(in width) and North to South approximately 213
feet (in length) which is shown in blue color and
marked as 'H.D.C.E.F.G.H' and identified by the
letter 'C' in the suit sketch and the same is bounded
by East: Properties of Chowdappa and others, West:
Suit schedule 'A' Property, North: Property of
Varthur Bangalore main road. South: Krishna
Reddy's house and dead end of road.
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:SUIT SCHEDULE 'D' PROPERTY:
All the piece and parcel of property allegedly
bearing BBMP Katha No.85/66, V.P. Katha No.66,
Old V.P Katha No.78, Property No.33 situated at
Thubarahalli Village, Varthur Hobli, Bangalore
East Taluk measuring East to West 6 feet and North
to South 45 feet, now coming within the
jurisdiction of BBMP Ward No.85 and the same is
bounded by East: Property in the possession of the
defendant excluding schedule 'B' property, West:
Road, North: Property of Venkatesh Prasad, and
South : Property of Muniswamappa.
12. The defendant No.1 of OS.No.2532/2013 filed written
statement submitting that suit of plaintiff for declaration and
permanent injunction is maintainable either in law or on facts.
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That originally one Patel Munishami Reddy was absolute owner
of property bearing Sy.No.33 measuring 2 acre 12 guntas situated
at Thubarahalli Village, Varthur Hobli, Bangalore south Taluk.
That in order to settle family properties Patel Munishamai Reddy
divided all the properties including Sy.No.33. That in the said
process property bearing Sy.No.33 was allotted to 8 persons.
That in the said division in Sy.No.33, Jayamma was allotted 28
gutnas, Buddappa was allotted 10 guntas, Patel Munishami
Reddy retained 36 gutnas, Chinnappa was allotted 6 guntas,
Nanja Reddy was allotted 6 guntas and Pilla Reddy was allotted
6 guntas and revenue records were mutated in their respective
names and they continued in possession of said property. That M.
Jayamma W/o M. Nanja Reddy was absolute owner of 28 gutnas
in Sy.No.33 and due to her inability to cultivate the said land
formed residential sites on the her land consisting of various
dimensions. That while forming sites Jayamma had formed 10'
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feet road on eastern side of her property to have access from
main road from South to North. That after formation of the sites
in her share she sold the same to various prospective purchasers.
That Jayamma had also formed site measuring to the extent of 2
Guntas 78 Square yard i.e. 64' feet X 45' feet in all measuring
2880 square feet in Sy.No.33 situated at Thubarahalli Village,
Varthur Hobli, Bangalore South Taluk. M. Jayamma due to her
financial necessity sold said site in favour of M.D.
Krishnamurthy Rao under registered sale deed on 18/02/1981,
said property was bounded by East:10' feet road, West: Road and
thereafter property of Pilla Reddy, North: Remaining property in
Sy.No.33, South: Property belonging to Buddappa. The said
M.D. Krishanamurthy Rao got his name entered in the revenue
records from Ramagondanahalli Grama Panchayat and he was
paying taxes to the jurisdiction Grama Panchayat regularly and
he continued to be in possession without anybody's injunction.
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The Ramagondanahalli Grama Panchayat has also assigned
Khatha No.78 to his property.
13. The defendant No.1 further submits that M.D.
Krishnamurthy Rao in view of his family and legal necessity had
offered to sell the above stated property for valuable sale
consideration to any prospective purchasers. That he had agreed
to purchase portion of the site measuring the East to West 32' feet
and North to South 45' feet bearing Khatha No.78 bearing house
list No.33 formed in Sy.No.33. Accordingly M.D. Krishnamurthy
Rao executed registered sale deed on 02/11/1989 in his favour,
hence he became absolute owner of said property and continued
to be in possession of the said site. That the site purchased by
him is bounded by East: remaining portion of the property
bearing same Khatha No.78, house list 33 belonging to Krishna
Murthy Rao and now belonging plaintiff, West: Road, North:
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property belonging to Nanjareddy and South: Property belonging
to Buddappa and he was mutated said property in his name in
revenue records and he continued to be in possession of the said
site. That M.D. Krishnamurthy Rao after executing the sale deed
in favour of the defendant No.1 had retained remaining site
measuring East to West 32 feet North to south 42' feet in khatha
No.78 house list No.33 the said property was bounded by East:
10' feet road, West: property sold to defendant No.1 in the very
same khatha number, North: property belonging to Venkatesh,
South: property belonging to Buddappa.
14. The defendant No.1 further submits that since M.D.
Krishnamurthy Rao had retained remaining site measuring East
to West 32' feet and North to South 45' feet had also offered to
sell the same to prospective purchaser. That his brother as well
as husband of plaintiff T.R. Muniraju agreed to purchase said
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remaining site. M.D. Krishnamurthy Rao sold said suit to T.R.
Muniraju by executing general power of attorney in respect of
site measuring to an extent of East to West 32' feet and North to
South 45' feet. that in view of the said GPA, T.R. Muniraju was
put in possession of the said site and thereafter he constructed
compound surrounding to his site by leaving 10' feet road on the
Eastern side of his site. That T.R. Muni Raju based on the said
power of attorney executed registered sale deed in favour of his
wife i.e. plaintiff on 14/03/2005. That the plaintiff in the said sale
deed had has specifically mentioned the boundaries of the site as
East: Road and other afterwards the house of Chowdappa, West:
Property of Savithramma and now belonging to Muni Venkata
Reddy i.e. defendant No.1, North: property belonging to
Venkteshappa, South: property belongs to Buddappa. That the
defendant No.1 after purchasing the site from M.D.
Krishnamurthy Rao under registered sale deed dated 02/11/1989
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made an application to the jurisdictional Grama Panchayath to
mutate his name in the revenue records as per his possession.
That the revenue authorities based on the said application
conducted spot inspection and found that he was in possession of
property measuring to an extent of East to West 40' feet North to
South 45' feet and accordingly the revenue authorities issued
form No. 9 & 10 in his favour. That based on his title deeds made
application to the said Grama Panchayat to grant licenses in order
to construct residential building in the said site. The
Ramgondanahalli Group Panchayat on verification granted
license permitting him to put up construction of residential
building under its letter dated 27/06/1994 and also approved the
building plan.
15. The defendant No.1 further submits that pursuant to the
license and approved plan the defendant No.1 put up residential
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building over his site and he and his family members were
residing in the said building ever since 1995. That as the facts of
that stage the jurisdiction of the property purchased by defendant
No.1 was transfer the jurisdiction of the defendant No.2
corporation limits during the year 2010. Since he did not have
sufficient accommodation and accordingly he had decided to
demolish the building constructed during 1995 and construct a
new building over the property. Accordingly he submitted plan to
the defendant No.2 Corporation for its approval in order to put up
building. The defendant No.2 Corporation on perusal of the title
documents had approved the building plan and accordingly he
constructed residential building in which, he is in possession.
That after few days he had made application to the jurisdictional
corporation to transfer khatha in his favour in respect of the said
site. The defendant No.2 corporation had raised an objection
stating that the measurement found in earlier khatha certificates
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and sale deed does not tallying and accordingly he was requested
to rectify the said mistake. That actually he was in possession of
site measuring east to west 38' feet and North to South 45' feet i.e
he was in excess possession to an extent of land measuring East
to West 6' feet and North to South 45 feet. That the said excess
possession was the land which belongs to one Pilla Reddy and
who's property is on the Western side of his site. That Pilla
Reddy is brother of his mother in law. That at no point of time
neither Pilla Reddy nor his family members were interfered with
his possession ever since 1989 till today. That the said excess
land which was in his possession is part and parcel of Sy.No.33.
That in view of the said mistake in the measurement he had
requested Pilla Reddy to execute document in his favour in
respect of the excess land measuring East to West 6' feet and
North to South 45' feet in order have better title. That Pilla Reddy
is brother his mother in law had executed registered
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relinquishment deed in his favour and same came to be registered
on 17/12/2012. That in view of the said registered deed he
became the absolute owner of property bearing Khatha No.78/33,
measuring East to West 38 feet and North to South 45' feet. That
pursuant to said documents, defendant No.2 mutated his name in
the revenue records and issued khatha certificate to that effect.
16. The defendant No.1 further submits that in pursuant of the
same he is in possession of his property by constructing
residential building. That Jayamma while forming residential
layout in Sy.No.33 measuring 28 gutnas had formed 10' feet road
to the reach all the said sites for ingress and egress from the main
road passing from North to South. The said road was on the
Eastern side of his property. The plaintiff had purchased site
facing the road side and the same was measuring 10' feet road
which is on the Eastern side of her site. That the plaintiff's
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husband after purchasing one site from M.D. Krishnamurthy Rao
under GPA took possession and had constructed compound wall
to his site by leaving 10' feet towards the road and he had also
constructed small shed on the North East corner of his site. That
some difference arose between him and plaintiff's husband, hence
plaintiff's husband in order harass him by suppressing all the
material facts and the measurements of the site purchased him
and his possession, he filed suit OS.No.27133/2013 for relief of
permanent injunction against hi contending that he had
encroached into the property of the plaintiffs site to an extent of 5
feet on the Western side of her site i.e. Eastern side of his site. He
has not at all encroached any single inch of land belonging to the
plaintiff.
17. The defendant No.1 further submits that he also contended
that in order to harass him, the plaintiff and her husband by
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removing the compound wall which was existed earlier and
constructed a new compound wall on the Eastern side of her site
by leaving 15 feet width towards the road even though the road
was 10' feet width and also contended that the plaintiff has filed
the said suit only in order to harass him. Hence he sought for
dismissal of the suit. That the plaintiff in the said suit bearing
OS.No.27133/2012 had filed an application U/o 39 Rules 1 & 2
of CPC seeking for relief of temporary injunction against him.
That he had filed his objections and sought for dismissal of the
said application. That this court while considering the said
application had appointed court commissioner to inspect the said
suit schedule property and submit report by identifying the
possession of the parties as per the sale deeds and other
documents. That at that point of time the plaintiff and her
husband removed the compound wall existed earlier prior to the
date of inspection by the court commissioner. The court
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commissioner after inspection submitted report to the court. That
this court based on commissioner report and based on pleading
and documents of parties hold that he had not encroached any
inch of land of the plaintiff and also recorded finding that there
was only 10' feet road existing on the Eastern side of plaintiff's
site and accordingly dismissed application filed by the plaintiff.
18. The defendant No.1 further submits that the contention of
the plaintiff that T.R. Muniraju executed registered sale deed
dated 14/03/2005 in her favour, plaintiff has to prove the same.
The contention of the plaintiff that the said sale deed was
executed for valuable sale consideration of Rs.80,000/- and
accordingly the said T.R. Muniraju had put plaintiff in peaceful
possession and enjoyment of the said property by receiving the
consideration shown in the said sale deed is denied as false and
baseless in view of the fact that T.R. Muniraju is husband of
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plaintiff and question of she paying sale consideration to T.R.
Muniraju does not arise.
19. The defendant No.1 further submits that even though the
road that is situated on the Eastern side of the suit schedule
property is 15 feet wide road is denied as false, that the said road
is only 10' feet. The contention of the plaintiff that neighboring
property owners have encroached upon a portion of the said road
is also denied as false and baseless. Further contention of the
plaintiff that at certain points the road does not actually measure
15 feet, but in so far as there is sufficient road space to the extent
of 15 feet but in so far as plaintiff is concerned since it is vacant
site with fencing there is sufficient road space to the extent of 15
feet on the eastern side is false. The contention of the plaintiff
that one D. Rajashekar own site in the same road adjacent to the
suit schedule property bearing site No.253 (old No.22) Katha
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No.63 measuring East to West 40 feet and North to South 44 feet
and when the neighboring property owner namely
Munishamappa and others had encroached upon the said road,
thereby resulting in decreasing the width of the road from its
existing 15 feet, the said D. Rajashekar had filed suit in OS
No.2044/2012 on the file of Additional City Civil Judge at
Bangalore for mandatory injunction for removal of encroachment
and had also sought for other allied reliefs is false and also same
is not within his knowledge.
20. The defendant No.1 further submits that he and plaintiff
were in good terms with each other till October 2012 and since
the plaintiff could not frequently visit the suit schedule property
and there was no occasion for plaintiff that he would demolish
the construction and put up fresh construction in the portion of
the land owned and possessed by him and the plaintiff absolutely
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had no objection for the same and he had also agreed and
promised that he would raise construction within the
measurement shown in sale deed dated 02/11/1989, under which
he has purchased the property situated on western side of suit
schedule property is false. The contention of plaintiff that on
06/11/2012 plaintiff visited suit property and found that he had
made markings on the ground and it clearly indicated that he
intended to encroach upon portion of property owned and
possessed by the plaintiff towards western side of suit schedule
property and which fell within the property purchased by
plaintiff after 15 feet road and plaintiff had absolutely no idea as
to why such markings were made is also false. The contention of
plaintiff that immediately the plaintiff and her General Power of
Attorney holder contacted the defendant No.1 and asked as to
why such markings are made in portion of property belonging to
plaintiff, but defendant No.1 refused to give any proper reply, but
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as on 06/11/2012 there were no any constructions or there was no
any encroachments made to lay foundation in any portion of suit
schedule property is false.
21. The defendant No.1 further submits that neither plaintiff
nor her husband had approached him at any point of time and
they were well within the knowledge of the fact that he was in
possession of the property measuring East to West 38 feet and
North to south 45 feet from several years as per the registered
sale deeds. The contention of the plaintiff that the plaintiff and
her husband once again directly contacted him and enquired as to
why he is attempting to encroach on portion of the suit schedule
property, for which he claimed that there was no any intention to
encroach upon the property of the plaintiff but his workers by
oversight have made markings over the same is false. The
contention of plaintiff that on 07/11/2012 in the morning at about
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10 am she was informed by some known persons in the locality
that he has started digging up the earth of foundation work in the
property belonging to the plaintiff and immediately she and her
husband rushed to the spot and found that he was not available
and when she made enquiries with the workmen as to why the
markings are still there, said worker informed the plaintiff and
her husband that he has instructed them to dig up the marked
portion and lay foundation thereon in order to raise construction,
then she realized that he is attempting to encroach portion of her
property and all efforts made to convince his workers at the spot
failed to yield any results is also denied as false and baseless.
That at no point of time the defendant No.1 had encroached the
property of plaintiff, hence the question of demolishing does not
arise. That the plaintiff in order to further harass the defendant
No.1 has filed various petitions before this court as well as
Hon'ble High Court of Karnataka and also appeal before
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Karnataka Appellate Tribunal by seeking for demolition of
building constructed by the defendant No.1 without any basis
and contrary of documents. He has invested huge lakhs of
amount to put up construction over his property and as on today
he and his family members are residing. The defendant No.1
prays to dismiss the suit of plaintiff with exemplary cost.
22. That on 06/04/2013 plaintiff counsel filed memo to
dismiss suit against the defendant No.2 as not pressed, hence on
the same day suit against the defendant No.2 dismissed. That on
suit summons to defendant No.3 served, on 18/09/2015 one B.S
Advocate filed memo of undertaking to file vakalat to defendant
No.3, but latter on not filed vakalat to defendant No.3 and
defendant No.3 not appeared before court and not filed written
statement.
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23. The brief facts of plaint averments in
OS.No.27133/2012 is as under:
The plaintiff submits that property bearing No.33, house
list No.78 measuring 2 guntas 78 square yards of Thubaranahalli
is ancestral property belonging to Jayamma W/o M. Nanjareddy
and said was bounded by East: 10 feet wide road, West: Road
and Pilla Reddy's Land, North: Remaining extent of land in the
same property, South: Guddappa's property. All the revenue
records stood in the name of Jayamma and she was exercising
acts of ownership thereon. That Jayamma conveyed the said
extent of property with same description in favour of M.D.
Krishnamurthy Rao under registered sale deed dated 18/02/1981
and put him in possession of the said extent of land. As on date
of execution of said sale deed it was only a vacant site and there
was no any sort of construction raised on any portion of said
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property. Subsequent to said sale deed M.D. Krishnamurthy Rao
got all revenue records mutated to his name in the records
maintained by Ramagondanahalli Panchayath and taxes were
paid by said M.D. Krishnamurthy Rao in respect of the said site.
24. The plaintiff further submits that subsequently said M.D.
Krishnamurthy Rao executed general power of attorney dated
28/08/1989 in favour of T.R. Muniraju in respect of the above
said property and the said general power of attorney was
notarized on the same day. The recitals of the said General Power
of Attorney clearly indicated that the general power of attorney
holder was put in possession of the said property and he was
permitted to get the site converted, pay taxes, obtain water and
electricity connection, execute sale deeds, mortgage deeds rent
agreements and lease deeds and appropriate the amounts received
there from apart from other powers. In the said general power of
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attorney the property, is described as Thubarahalii Village
Sy.No.33 measuring out of 2 guntas 78 square yards and the
boundaries were shown to be East: house of Chowdappa, West:
Site belonging to Savithramma in the same number to an extent
of 1 gunta and 39 square yards. North: Land of Venkateshappa
and South: Property of Buddappa. On the date of execution of
the General Power of Attorney said M.D. Krishnamurthy Rao
also executed agreement of sale dated 28/08/1989 admitting the
receipt of Rs.12,000/- and putting said T.R. Muniraju in
possession of the said property, the description of the said
property is similar to the one given under the General Power of
Attorney, the agreement of sale also indicated delivery of
possession. Apart from General Power of Attorney and
agreement of sale, said M.D. Krishnamurthy Rao also executed
an affidavit dated 28/08/1989 which was duly notarized on the
same day, wherein there is clear admission regarding execution
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of agreement of sale and the General Power of Attorney and
regarding the receipt of sum of Rs.12,000/- from the said T.R.
Muniraju. Thus it is clear that said General Power of Attorney is
coupled with interest and has become document which cannot be
revoked under law. That based on the said General Power of
Attorney, agreement of sale and affidavit, said T.R. Muniraju was
in possession of same and he had fenced said property.
25. The plaintiff further submits that said T.R. Muniraju is her
husband, he executed registered sale deed in her favour under
registered sale deed dated 14/03/2005 conveying the schedule
property absolutely in her favour for valuable sale consideration
of Rs.80,000/- and accordingly put her in possession of said suit
schedule property mentioned below.
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:SUIT SCHEDULE PROPERTY:
All the piece and parcel of property bearing No.33,
house list katha No.78, later 87 now Sl.No.86, situated
at Thubarahalli Village, Varthur Hobli, Bangalore East
Taluk, measuring East to West 32 feet and North to
South 45 feet, now coming within the jurisdiction of
BBMP, Ward No.85 and the same is bounded on the
East: Road and house of Chowdappa, West: Property
belonging to Savithramma and now belonging to
Munivenkata Reddy the defendant here, North:
Property of Venkateshappa and South: Property of
Buddaappa.
She improved the said property and she had got her name entered
in the revenue records maintained by the Bruhat Bengaluru
Mahnagara Palike and she has been paying taxes in respect of the
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same. Subsequent to the property coming within the jurisdiction
of Bruhat Bengaluru Mahnagara Palike it was renumbered as
Sl.No.86, old No.67 of Thubarahalli, Oody Sub-division. That
her name is found in the katha records maintained by said
revenue authority.
26. The plaintiff further submits that even though the road that
is situated on the Eastern side of the suit schedule property is
shown as 10 feet in the records, but actually the same is 15 feet
vide road, the said road is the only access for her to reach the
Bangalore-Varthur Main Road. That some of the neighboring
property owners have encroached portion of the said road and
hence at certain points the road does not actually measures 15
feet, but in so far as she is concerned since it is a vacant site with
fencing there is sufficient road space to the extent of 15 feet on
the Eastern side.
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27. The plaintiff further submits that the defendant is her
brother in law and elder brother of her husband T.R. Muniraju, in
some of the records like the General Power of Attorney dated
28/08/1989 the Western side property is shown as property of
Savithramma, who is her sister in law, since at that time, both she
and her husband as well as her brother in law had purchased sites
under 2 separate General Power of Attorneys and the said sites
were abutting each other. In the sale deed dated 14/03/2005 the
Western side property is described as property of Savithramma
now belonging to Munivenkata Reddy the defendant. It is thus
clear that her property and the property of the defendant are
situated adjacent to each other. In fact the defendant even though
in the first instance had got General Power of Attorney executed
by M.D. Krishnamurthy Rao in favour of his wife, later he
choose to get sale deed in his name directly from said M.D.
Krishnamurthy Rao, the above referred sale deed came to be
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executed in favour of the defendant on 02/11/1989 which was
duly registered in the Sub-Registrar, Bangalore South Taluk. The
property covered under the said sale deed situated on the Western
side of the suit schedule property, the said property of the
defendant which is situated on the Western side is bearing katha
No.78, house list No.33, measuring East to West 32 feet and
North to South 45 feet and the same is shown to be bounded on
the East: property of R. Muniraju, West: road, North: property of
Nanjareddy, South: property of Guddappa. As indicated above
the Eastern side property is shown as property of R. Muniraju,
who is her husband, since at that particular point of time, her
husband was in possession of the property as General Power of
Attorney holder.
28. The plaintiff further submits that till recently the entire
suit property was vacant, whereas in the property belonging to
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the defendant there was a small residential construction and now
the same has been demolished to put up fresh construction. When
the matter stood thus she as well as the defendant who were in
good terms with each other till recently and could not frequently
visit the suit schedule property and there was no occasion for her
to raise any construction in any portion of the suit schedule
property. However since the house of the defendant had become
dilapidated he suggested to her that he would demolish the
construction and put up fresh construction in the portion of the
land owned and possessed by him and she absolutely had no
objection for the same and even now she had no objection for the
defendant to raise construction within the measurement shown in
the sale deed dated 02/11/1989, under which he has purchased
the property situated on the Western side of suit schedule
property. However on one casual visit to the schedule visit on
06/11/2012 she found that the defendant had made markings on
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the ground and it clearly indicated that he intended to encroach
upon the portion of the property owned and possessed by her
towards the Western side of the suit schedule property.
Immediately she contacted the defendant through her husband
and asked as to why such markings are made in a portion of the
property belonging to her, but the defendant refused to give any
proper reply, but as on 06/11/2012 there were no any
constructions or there was no any encroachments to lay
foundation in any portion of the suit schedule property. Later she
once again directly contacted the defendant and enquired as to
why he is attempting to encroach on portion of suit schedule
property, for which the defendant claimed that there was no any
intention to encroach upon her property, but his workers by
oversight have made markings over the same. She had no reason
to disbelieve the version of the defendant and returned. Later on
07/11/2012 in the morning at about 10 a.m., she was informed by
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some known persons in the locality that the defendant has started
digging up the earth for foundation work in the property
belonging to her and immediately she rushed to the spot and
found that the defendant was not available and when she made
enquiries with the workmen as to why the markings are still
there, said workers informed her and her husband that the
defendant has instructed them to dig up the marked portion and
lay foundation thereon in order to raise construction, then she
realized that the defendant is attempting to encroach a portion of
her property and all efforts made to convince the defendant and
the workers at the spot failed to yield any results. The plaintiff
further submits that in the afternoon of 07/11/2012 she made
attempts to lodge police complaint but the police failed to accept
the same stating that the matter is of civil nature and approach
civil court.
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29. The plaintiff submits that cause of action for the suit arose
on 06/11/2012 and on 07/11/2012 and subsequently. The plaintiff
prays to decree the suit for permanent injunction, restraining the
defendant, his agents, workers or any one through them from
interfering with her peaceful possession and enjoyment of the
suit schedule property in any manner, including that of trespass,
encroachment and dispossessing her there from by adopting
unlawful and illegal methods without adopting due process of
law. The plaintiff prays to award costs of the suit.
30. The defendant filed written statement submitting that the
averments made at paras No.3 to 7 of plaint are not within his
knowledge and the plaintiff is put to strict proof of the same. The
plaintiff is not sure about the exact extent of the road at fag end of
the same para defendant himself stating that there is 15 feet road
on the Eastern side of the plaint schedule property. Any how these
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facts are no way concerned to the defendant and if really the
plaintiff is aggrieved, the only option left open to her is to
approach the concerned authority in accordance with law,
rather than harassing the innocent defendant. The defendant
denied the allegations of plaint para No.8. The defendant submits
that no doubt his and property of plaintiff are adjacent to each
other. The defendant admits relationship with plaintiff. The
defendant denied that he had informed the plaintiff that he was
going to demolish the existing house and construct a new house,
no such occasion was there for the defendant to consult him as
alleged by the plaintiff. The defendant has no locus-standi or
authority neither to give his consent for construction nor to
question the extent of the defendant land. It is false that on
06/11/2012 plaintiff found markings on the ground which he
defendant intended to encroach on the Western side of the
property. At no point of time he has encroached any portion of the
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land belonging to the plaintiff, it is an invented story of the
plaintiff she had contacted the defendant through her husband to
question the defendant regarding encroachment and the defendant
defending by oversight has made markings over the property of
the plaintiff all these are cooked up story just to give shape to the
present case and invent cause of action. It is not within the
knowledge of the defendant that plaintiff was informed by some
known persons on 07/11/2012 that defendant has started digging
work in the property of the plaintiff, she enquiring the workers of
the defendant later she realizing defendant is attempting to
encroach and her efforts to convince him are all false.
31. The defendant further submits that it is not within his
knowledge that whether the plaintiff has lodged complaint to the
jurisdictional police. It is false that he pressurize the police not to
accept the complaint is denied. The defendant denied allegations
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of plaint para No.9. The defendant submits photographs produced
by him clearly shows that, there is not even a single millimeter of
encroachment of land belonging to plaintiff much less as alleged
by the plaintiff. The plaintiff has complained to BBMP alleging
he has encroached her property and got plaintiff & his property
measured and BBMP has prepared report stating
that there is no encroachment by defendant in plaintiff property.
The defendant denied allegations of plaint paras No.10 to 13 and
denied alleged cause of action taken place on 06/11/2012 &
07/11/2012.
32. The defendant further submits that he is absolute owner of
the site bearing khatha No.78 house list No.33, he purchased said
property under registered sale deed on 02/11/1989 for valuable
consideration, since then he is in his peaceful possession and
enjoyment without any hindrance whatsoever. The husband of
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plaintiff is his younger brother. Due to ill will and listening to
some mischief mongers his brother without any reason or cause
of action has came up with mischievous suit through his wife.
There is not even a single millimeter of encroachment of
plaintiff's property. The defendant is prepared for any surveyor or
competent authority to conduct spot inspection with regard to the
allegation made by the plaintiff that her property is encroached by
him. The construction carried out by him in his property and it is
in accordance with law and also by getting plan sanctioned from
the concerned authority. After obtaining the sanctioned plan, he is
constructing the building in his property as per plan sanctioned.
The construction is up to roof level. He has invested huge amount
for construction. The construction work is entrusted to civil
contractor and he is doing the work with 15 workers/laborers. The
defendant has also purchased materials such as iron bars, cement,
hallow blocks, sand, jelly wood, etc required for construction.
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The plaintiff is not entitle for any equitable relief of Injunction.
Nowhere in her plaint averred where exactly and the extent of
property encroached him as alleged in the plaint and she has not
stated about exact measurement of alleged encroachment. The
plaintiff is not entitle for any relief as claimed. The defendant
prays to dismiss the suit of plaintiff with exemplary cost.
33. That in OS.No.2532/2013 on 16/04/2016 the plaintiff
counsel filed application U/s 151 of CPC to club the suit with
OS.No.27133/2012, then on 19/01/2017 the defendant counsel
submitted that, both suits may be clubbed and applications may
be allowed. Hence on that day the application filed by the
plaintiff U/s 151 of CPC was allowed and suit OS.No.2532/2013
and OS.No.27133/2012 are clubbed and common evidence
recorded in both suits.
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34. The plaintiff in both suits is common and defendant No.1 in
both suits is common. The GPA holder of the plaintiff of both
suits examined as PW.1 and marked ExP1 to ExP65 and
examined witnesses PW.2 & PW.3. Further the defendant No.1 in
OS.No.2532/2013 and defendant in OS.No.27133/2012 are
similar and he examined as DW.1 and marked ExD1 to ExD77.
On 06/03/2013 in OS.No.2532/2013 the plaintiff counsel filed
memo dismissing the suit against the defendant No.2, hence the
suit against the defendant No.2 in OS.No.2532/2013 dismissed on
06/03/2013. Further the defendant No.3 is impleaded as per order
on IA No.3 dated 01/04/2017, the summons to the defendant No.3
issued and same was served and one B.S advocate filed memo
undertaking to appear to the defendant No.3, but later on not filed
vakalath and also the defendant No.3 not filed the written
statement.
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35. On the basis of above pleadings Issues framed in both suits
as under:
:ISSUES IN OS No.2532/2013:
(1) Whether the plaintiff proves that she is the
absolute owner of suit schedule 'B' property?
(2) Whether the plaintiff proves that the alleged
registered release deed dt. 17/12/2012
executed by defendant No.3 is a sham and
created document and the same is not binding
on her?
(3) Whether the plaintiff proves that the
defendant No.1 is trying to encroach upon
portion of suit schedule 'A' & 'B' properties?
(4) Whether the plaintiff proves that she was in
lawful possession and enjoyment of suit
schedule 'A' & 'B' properties?
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(5) Whether the plaintiff proves that the alleged
interference of defendants over suit schedule
'A' & 'B' properties?
(6) What order or decree?
:ISSUES IN OS NO.27133/2012:
(1) Whether plaintiff proves that she is in lawful
possession and enjoyment of the suit schedule
property as on the date of the suit?
(2) Whether plaintiff proves that defendant is
illegally interfering into her possession in suit
property?
(3) Whether the plaintiff is entitled for decree of
Permanent Injunction as sought in the plaint?
(4) What decree or order?
36. The plaintiff counsel of both suits partly argued, but later
on inspite of sufficient opportunity given not further argued. The
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defendant counsel not argued inspite of opportunity given to the
counsel. Perused the records.
37. My findings to above Issues in both suits are as under.
:ISSUES IN OS.No.2532/2013:
Issue No.1) In Negative
Issue No.2) In Negative
Issue No.3) In Negative
Issue No.4) Partly in Affirmative and Partly in Negative
Issue No.5) In Negative
Issue No.6) See final order for following:
:ISSUES IN OS.No.27133/2012:
Issue No.1) In Affirmative
Issue No.2) In Negative
Issue No.3) In Negative
Issue No.4) See final order for following:
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:REASONS:
38. Issues No.1 to 5 in OS.No.2532/2013 and Issues No.1 to 3
in OS.No.27133/2012:
The GPA holder of the plaintiff in both suits by name T.R.
Muniraju filed his affidavit in lieu of examination in chief as
PW.1 and deposed evidence that property forming part of
Sy.No.33, House List No.78 totally measuring 2 guntas 78 gajas
of Thubarhalli village is ancestral property belonging to M.
Jayamma W/o M. Nanja Reddy and to the East of the said
property there was a road measuring about 15 feet in width. All
the revenue records stood in the name of M. Jayamma and she
was exercising acts of ownership thereon. That M. Jayamma
conveyed the said extent of property in favour of M.D.
Krishnamurthy Rao under registered sale deed dated 18/02/1981
and put him in possession of the said extent of land on the date of
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execution of the registered sale deed. As on the date of execution
of said sale deed it was only a vacant site and there was no any
sort of construction raised on any portion of the said property.
Subsequent to the said sale deed M.D. Krishnamurthy Rao got all
the revenue records mutated to his name in the records
maintained by Ramagondanahalli Panchayath and taxes were
paid by the said M.D. Krishnamurthy Rao in respect of the said
site. That subsequently said M.D. Krishnamurthy Rao executed
General Power of Attorney dated 28/08/1989 in his favour in
respect of the above said property and the said General Power of
Attorney was notarized on the same day. The recitals of the said
General Power of Attorney clearly indicated that he was put in
possession of the said property as General Power of Attorney
holder and he was permitted to get the site converted, pay taxes,
obtain water and electricity connection, execute sale deeds,
mortgage deeds, rent agreements and lease deeds and appropriate
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the amounts received there from apart from other powers. The
said General Power of Attorney is coupled with interest and is
incapable of being revoked. Consideration has changed hands
under the said General Power of Attorney and the said document
was executed by M.D. Krishnamurthy Rao by accepting valuable
consideration. Both the parties have acted upon the recitals of the
said General Power of Attorney and is incapable form being
revoked and hence the same cannot be relied on.
39. The PW.1 further deposed evidence that in said General
Power of Attorney the property is described as Thubarahalli
Village Sy.No.33 measuring 1 gunta 39 square gajas out of the
total extent of 2 guntas 78 square gajas owned and possessed by
M.D. Krishnamurthy Rao and the boundaries were shown as
East: house of Chowdappa, West: site belonging to Savithramma
in the same number to an extent of 1 gunta and 39 square gajas,
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North: Land of Venkateshappa, South: property of Buddappa.
That on the date of execution of the General Power of Attorney,
said M.D. Krishnamurthy Rao has also executed an agreement of
sale dated 28/08/1989 admitting the receipt of the entire sale
consideration of Rs.12,000/- and putting him in possession of the
said property. The description of the said property is similar to the
one given under General Power of Attorney. The agreement of
sale also indicated delivery of possession. Apart from General
Power of Attorney and agreement of sale, said M.D.
Krishnamurthy Rao had also executed an affidavit dated
28/08/1989 which was duly notarized on the same day before the
notary, wherein there is clear admission regarding execution of
agreement of sale and the General Power of Attorney and
regarding the receipt of sum of Rs.12,000/- from him. Thus it is
clear that the said general power of attorney is coupled with
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interest and has become document which cannot be revoked
under law.
40. The PW.1 further deposed evidence that based on the said
General Power of Attorney, the agreement of sale and affidavit,
he was put in possession of the same and he had erected
compound wall around the property by spending heavy amounts.
He is husband of plaintiff and he was aware of the entire material
events that have taken place in respect of the schedule property.
That his wife plaintiff herein is unwell and she is mostly
confined to the bed and the doctors attending on him have
advised her rest and hence he is compelled to act as General
Power of Attorney holder of plaintiff and since he know about
entire sequence of events and is having personal knowledge
regarding the suit schedule property he was competent to conduct
the above suit proceedings as General Power of Attorney. That he
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was executed registered sale deed dated 14/03/2005 in favour of
his wife plaintiff conveying the schedule property for sale
consideration of Rs.80,000/- and accordingly he had put his wife
in peaceful possession and enjoyment of the said property by
receiving the consideration shown in the said sale deed. That the
property that is described in said sale deed is the property bearing
No.33, House List Katha No.78, situated at Thubarahalli Village,
Varthur Hobli, Bangalore East Taluk, within Ramagondanahalli
Panchayath area, Bangalore measuring East to West 32 feet and
North to South 45 feet. The said property later comes within the
jurisdiction of BBMP, Ward No.85. His wife has improved the
said property and she had got her name entered in the revenue
records maintained by the BBMP and she has been paying taxes
in respect of the same. Subsequent to the property coming within
the jurisdiction of BBMP it was renumbered as Sl.No.86, Old
No.67 of Thubarahalli, Hoodi Sub-Division. His wife name is
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found in the katha records maintained by the said revenue
authority.
41. The PW.1 further deposed the evidence that the road that is
situated on the Eastern side of the suit schedule property is a 15
feet wide road, the said road is the only access for them to reach
the Bangalore-Varthur Main Road and there is no access to his
property from any other side. On one side the property of the
defendant No.1 is situated and on other two sides some private
landowners have raised constructions. That some of neighboring
property owners have encroached upon a portion of the said road
and hence at certain points the road does not actually measure 15
feet, but in so far as plaintiff is concerned since it is a vacant site
with fencing there is sufficient road space to the extent of 15 feet
on the Eastern side. The defendant No.1 is his elder brother. In
some of the records like the general power of attorney dated
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28/08/1989 the Western side property is shown as property of
Savithramma, who is her sister and sister in law of the plaintiff,
since at that time, herself and her brother had purchased sites
under two separate general power of attorneys and the said sites
are abutting each other.
42. The PW.1 further deposed evidence that sale deed dated
14/03/2005 the Western side property is described as property of
Savithramma now belonging to Munivenkata Reddy, the
defendant No.1 herein. It is thus clear that her property and the
property of the defendant No.1 are situated adjacent to each
other. In fact the defendant No.1 even though in the first instance
had got general power of attorney executed by M.D.
Krishnamurthy Rao in favour of his wife, after he choose to get
sale deed in his favour directly from said M.D. Krishnamurthy
Rao, the above referred sale deed came to be executed in favour
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of the defendant No.1 on 02/11/1989 which was duly registered
in the office of the Sub-Registrar, Bangalore South Taluk. That in
the property covered under the said sale deed situated on the
Western side of the suit schedule property, the said property of
the defendant No.1 which is situated on the Western side is
bearing katha No.78, house list No.33, measuring East to West
32 feet and North to South 45 feet and the same is shown to be
bounded by East: property of R. Muniraju, West: Road, North:
Property of Nanja Reddy and South: Property of Buddappa. That
as indicated above the west of the property owned and possessed
by the defendant No.1 their lies Government Road and there is
no any property belonging to P. Pilla Reddy or anyone for that
matter in between the property of the defendant No.1 and the
road. However in order to enhance the measurement of the
property belonging to the defendant No.1 and in order to avoid
the encroachment made by the defendant No.1 over portion of
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her property document styled as release deed is created by the
defendant No.1 in collusion with the said P. Pilla Reddy and the
said document is created one to make it look as if there is a bit of
site property measuring East to West 6 feet and North to South
45 feet belonging to said P. Pilla Reddy even though there
existed none. If at all any such property was available the
defendant No.1 would have got the same mutated in the revenue
records and even while obtaining sanctioned plan the said extent
of property is excluded. In fact said P. Pilla Reddy never owned
any such piece of site property and there were no revenue records
standing in the name of Pilla Reddy at the relevant point of time
or at any point of time earlier and the said P. Pilla Reddy was
never in possession of the same and hence P. Pilla Reddy who is
proposed to be impleaded as defendant No.3 in the above suit did
not have any right, title, interest or possession over the proposed
schedule 'D' property and hence the said release deed dated
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17/12/2012 allegedly executed by one P. Pilla Reddy S/o
Muniyappa Reddy @ Annaiah Reddy allegedly registered in the
office of the Sub Registrar, Varthur, Bengaluru Urban District is
created, nominal, sham and fabricated document which did not
convey any rights or possession in favour of the defendant No.1
and the same is required to be delivered up and cancelled as it
creates lot of confusion in so far as the property owned and
possessed.
43. The PW.1 further deposed evidence that as indicated above
Eastern side property is shown as her property, since at that
particular point of time, herself was in possession of the property
as General Power of Attorney holder. That till recently the entire
suit property owned by her herein as well as the adjacent
property allegedly owned by the defendant No.1 was vacant site
except for small construction and now the same has been
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demolished to put up fresh construction. That in the same one D.
Rajashekar owns site in the same road adjacent to the suit
schedule property bearing site No.253 (old No22) katha No.63,
measuring East to West 40 feet and North to South 44 feet and
when the neighboring property owner namely Munishamappa
and others had encroached upon the said road, thereby resulting
in decreasing the width of the road from its existing 15 feet, the
said D. Rajashekar had filed a suit in OS.No.2044/2012 on the
file of the Addl. City Civil Judge at Bengaluru for mandatory
injunction for removal of encroachment and had also sought for
other allied reliefs. Even though the 'A' schedule property in the
said suit has got nothing to do with the present suit property.
However the 'B' schedule property in the said suit is the very
same 15 feet road claimed by her in the present suit also. In fact
the plaintiff therein namely D. Rajashekar has relied on a sale
deed on the Eastern side is shown as 15 feet road and the said
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Rajashekar had also relied on the sale deed of the original owner
dated 29/11/1980 and both these sale deeds clearly discloses that
there existed right from the date of formation of the layout 15
feet wide road which was formed for the benefit of the site
holders on either side of the road and was always meant to be
maintained as road to have sufficient access to reach the
respective properties ultimately leading to the Varthur main road.
The said road was earlier maintained by the Panchayath, later by
the City Municipal Council and now maintained by the Bruhat
Bangalore Mahanagara Palike. Electricity poles are erected one it
her side of the property from which electricity connections have
been given to the houses situated on either side of the said 15 feet
road. When the matter stood thus, themselves as well as the
defendant No.1 who were in good terms with each other till
October, 2012 and since we could not frequently visit the suit
schedule property and there was no occasion for them to raise
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any construction in any portion of the suit schedule property.
However since house of the defendant No.1 had become
dilapidated he suggested to him that he would demolish the
construction and put up fresh construction in the portion of the
land owned and possessed by him and they absolutely had no
objection for the same and the defendant No.1 had also agreed
and promised that he would raise construction within the
measurement shown in the sale deed dated 02/11/1989, under
which the defendant No.1 has purchased the property situated on
the Eastern side of suit schedule property. The said fact is not in
dispute.
44. The PW.1 further deposed evidence that on 06/11/2012 he
visited suit schedule property and found that defendant No.1 had
made markings on the ground and it clearly ground and it clearly
indicated that he intended to encroach upon portion of the
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property owned and possessed by him towards the western side
of the suit schedule property and which fell within the property
purchased by him after the 15 feet road and he had absolutely no
idea as to why such markings were made. Immediately, himself
and his wife contacted the defendant No.1 and asked as to why
such markings are made in a portion of the property belonging to
them but the defendant No.1 refused to give any proper reply, but
as on 06/11/2012 there were no any constructions or there was no
any encroachments made to lay foundation in any portion of the
suit schedule property. Later, once again directly contacted the
defendant No.1 and enquired as to why he is attempting to
encroach on a portion of the suit schedule property, for which the
defendant No.1 claimed that there was no any intention to
encroach upon their property but his workers by oversight have
made markings over the same. They had no reason to disbelieve
the version of the defendant No.1 and hence with a fond hope
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that everything would be sorted out they returned. Later on
07/11/2012 in the morning at about 10.00 A.M his wife was
informed by some known persons in the locality that the
defendant No.1 has started digging up the earth foundation work
in the property belonging to them and immediately himself and
his wife rushed to the spot and found that the defendant No.1 was
not available and when his wife made enquiries with the
workmen as to why the markings are still there, said workers
informed them that the defendant No.1 has instructed them to dig
up the marked portion and lay foundation thereon in order to
raise construction, then he realized that the defendant No.1 is
attempting to encroach a portion of their property and all efforts
made to convince the workers of the defendant No.1 at the spot
failed to yield any results.
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45. The PW.1 further deposed evidence that in the afternoon of
07/11/2012 made attempts to lodge police complaint against the
defendant No.1 but the police failed to accept the same stating
that the matter is of a civil nature and it should be sorted out
before the competent civil court of law and unless there is court
order the police will not come to their aid or assistance. That an
earlier point of time he had approached this court by filing
OS.No.27133/2012 praying for the relief of permanent injunction
in respect of the suit schedule property and presently the said suit
is clubbed with this suit for common suit for common disposal.
In the said suit temporary injunction order came to be granted
restraining the defendant No.1 herein from interfering with the
peaceful possession and enjoyment of the plaintiff over the suit
schedule property and the said order is extended from time to
time and subsequently the same has been vacated. The defendant
No.1 is very much aware of the interim order granted in the said
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suit. In fact the defendant No.1 has engaged the services of an
advocate and has filed written statement in the said suit and has
contested the suit on merits. Further in violation of the interim
order, when the same was in operation, the defendant No.1 has
proceeded with the construction activities and hence they had to
file an application for issuing necessary directions to the
jurisdictional police for implementing the interim order granted
by the Court. The said application is also pending disposal. That
in the said suit Court Commissioner was appointed at his
instance and the Commissioner's Report is made available to the
Court in which it has been specifically shown that the
construction is put up in violation of the sanctioned plan and
certain encroachments are also made in the portion of the
property belonging to him in violation of the interim order. He
has filed his objections to the Commissioner's Report but the
defendant No.1 herein who is the sole defendant in the earlier
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suit had chosen to accept the Commissioner Report. Without
admitting the commissioner's report in its entirety it clearly
discloses that construction has been put up by the defendant No.1
in excess of the area owned and possessed by the defendant No.1
under the sale deed of 1989. Katha has been mutated in the name
of the defendant only to the extent of property owned by him in
the 1989 sale deed and so also sanctioned plan is issued only to
the said extent. The defendant in the said suit referred in the
above paragraph is the defendant No.1 in the present suit and he
has in detail aware of the entire proceedings and has deliberately
not disclosed the same before this Court and he had managed to
obtain the interim order in another suit filed by him in
OS.No.25115/2013 by misleading the Court in active collusion
of the defendant No.2, which suit is between the defendants No.1
and 2 only and the plaintiff has been left out of the said
proceedings deliberately in order to avoid any contest later the
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same was came to his knowledge he has filed the impleading
application in the said suit as he is necessary party but when he
filed the impleading application immediately the plaintiff in the
above suit defendant No.1 herein was withdraw the said suit as
not pressed. In fact the defendant No.2 has already issued notices
to the defendant No.1 U/s 321(1) and 321(2) of the Karnataka
Municipal Corporations Act and later has issued a final notice
U/s 321(3) of the said Act. All these material facts have been
pressed by the defendant No.1 herein while he filed bearing
OS.No.25115/2013 as against the defendant No.2 herein. He had
also lodged complaint before the Bangalore Metropolitan Task
Force attached to the defendant No.2 but the said task force
failed to take any action in this behalf citing pendency of the civil
suit and the defendant No.1 has proceeded further with the
unauthorized construction activities on a war footing.
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46. The PW.1 further deposed the evidence that the defendant
No.1 has rendered himself liable to be restrained from making
any further encroachments upon any portion of suit schedule
property or dispossess him from any portion there from without
adopting the procedure and process known to law. That due to
the inaction of the defendant No.2 as against the defendant No.1
for not taking further action after issuing final notices he had to
file a writ petition before the Hon'ble High Court of Karnataka,
Bangalore in WP.No.706/2013 and the said writ petition has
since been disposed of with some observations. That the
construction raised by the defendant No.1 is without leaving any
setbacks on all sides and even going to the extent of encroaching
upon a portion of the suit property by falsely claiming that there
is only a 10 feet access road to reach his property but in reality
there is 15 feet wide road and the same is supported by records.
Even further attempts of encroachments were made on
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17/03/2013 by the defendant No.1 herein and himself had raised
stiff protest consequent to which the defendant No.1 had to take a
quick retreat vowing that he would bring more number of men
and material and would dispossess him from the remaining
portion of the suit property and further claimed that he knows
how to handle him in this behalf. Attempts made by him to take
assistance of the jurisdictional police in this behalf did not yield
results as they failed to come to his aid. His title over the entire
'A' and 'B' schedule properties is not disputed by the defendants,
however, since 'B' schedule property has been encroached upon
and there are differences between him and the defendant No.1 in
so far as the width of the road lying to the East of the suit
property in order to get comprehensive relief and avoid any kind
of future complications the above suit is filed. Further in so far as
the schedule 'B' property is concerned, the defendant No.1 claims
that it forms part of his property and hence the relief of
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declaration is sought for at the hands of this Court. Since one of
the reliefs sought for is for declaring that the suit schedule 'C'
property is a Government road measuring 15 feet in width the
second defendant is proper and necessary party since the
schedule property is at presently situated within the territorial
limits of the defendant No.2 and it is the defendant No.2 who has
been maintaining the same. That he has annexed to the plaint a
suit sketch indicating the disputed and undisputed area. The
'A' schedule property is shown in the suit sketch with the
markings as 'A.B.I.C.D.J.A' and is coloured in red and includes
both the hatched and unhatched portions and is marked in letter
'A' and 'B' and measures East to West 32 feet and North to South
45 feet. The 'B' schedule property is shown in the suit sketch with
the markings as 'A.B.I.J.A' and is coloured in red and hatched
and is marked in letter 'B' and measures East to West 6 feet and
North to South 45 feet. The 'C' schedule property is shown in the
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suit sketch with the markings as 'H.D.C.E.F.G.H' and is coloured
in blue and measures approximately East to West 15 feet (in
width) and North to South 213 feet (in length) and is marked
with the letter 'C'.
47. The PW.1 further deposed the evidence that the cause of
action for suit arose on 06/11/2012 and subsequently on
07/11/2012 and subsequently on 17/03/2013 and subsequently.
The written statement filed by defendant No.1 making
allegations against plaintiffs are all false. The PW.1 prays to
decree the suit. In support of oral evidence PW.1 marked the
documents ExP1 to ExP65.
48. The plaintiff examined witness Rajshekar S/o Late
Doddanna as PW.2, he filed his affidavit in lieu of examination in
chief and deposed evidence that he owns a site in the same road
adjacent to the suit schedule property bearing site No.253 (old
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No.22) katha No.63 measuring East to West 40 feet and North to
South 44 feet and when the neighboring property owner namely
Munishamappa and others had encroached upon the said road,
thereby resulting in decreasing the width of the road from its
existing 15 feet, he had filed suit in OS.No.2044/2012 on the file
of the Additional City Civil Judge at Bangalore for mandatory
injunction for removal of encroachment and had also sought for
other allied reliefs. Even though the 'A' schedule property in the
said suit has got nothing to do with the present suit property.
However the 'B' schedule property in the said suit is the very
same 15 feet road claimed by the plaintiff in the present suit also.
In fact he relied also relied on a sale deed dated 12/08/1994 and
the boundary to the said sale deed dated 12/08/1994 and the
boundary to the said sale deed on the Eastern side is shown as 15
feet road and he had also relied on the sale deed of the original
owner dated 29/11/1980 and both these sale deeds clearly
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disclose that there existed right from the date of formation of the
layout a 15 feet wide road which was formed for the benefit of
the site holders on either side of the road and was always meant
to be maintained as a road to have sufficient access to reach the
respective properties ultimately leading to the Varthur main road.
The said road was earlier maintained by the Panchayath, later by
the City Municipal Council and now maintained by the Bruhat
Bangalore Mahanagara Palike. Electricity poles are erected on
either side of the property from which electricity connections
have been given to the houses situated on either side of the said
15 feet road.
49. The PW.2 further deposed evidence that said road is the
only access for them to reach the Bangalore Varthur Main Road
and there is no access to their property from any other side. That
some of the neighboring property owners have encroached upon
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a portion of the said road and hence at certain points the road
does not actually measure 15 feet, but in so far as plaintiff is
concerned since it is a vacant site with fencing there is sufficient
road space to the extent of 15 feet on the Eastern side.
50. Another witness by name Nagaraj S/o Late Chinnappa
filed his affidavit in lieu of examination in chief as PW.3 and
deposed evidence that husband of plaintiff and defendant No.1
are brothers and sons of late N.P. Ramaiah Reddy, both are
purchased the two sites from same vendor and both sites are
adjacent to each other, the property of defendant No.1 is situated
on the Western side of the plaintiff property, on the Eastern side
of the suit schedule property is 15 feet road. The said road is the
only access for the plaintiff to reach the Bangalore Varthur Main
Road and there is no access to his property from any other side.
On one side of the property of defendant No.1 is situated and on
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other two side private landowners are raised constructions. That
some of the neighboring property owners have encroached upon
a portion of the said road and hence at certain points the road
does not actually measures 15 feet, but in so for as plaintiff is
concerned since it is a vacant site with fencing there is sufficient
road space to the extent of 15 feet on the Eastern side. That as on
his knowledge the defendant No.1 construction without leaving
any setbacks on all sides and even going to the extent of
encroaching portion of the plaintiff property by falsely claiming
that there is only 10 feet access road to reach the plaintiff
property but in really there is 15 feet road and the said road is
Government road and maintained by the Government.
51. The defendant Munivenkata Reddy S/o Late N.P.
Ramaiah Reddy filed his affidavit in lieu of examination in chief
as DW.1 and deposed evidence that the plaintiff has filed the
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above suit seeking for relief of Declaration to declare that the
plaintiff is absolute owner of suit schedule property which is
marked as ABIJA in the suit sketch and also sought for
Mandatory Injunction by directing him to demolish unauthorized
construction raised in 'B' schedule property and restore
possession of same in favour of plaintiff. Further the plaintiff
has also sought for the declaration to declare that the public road
situated on Eastern side of 'A' suit schedule property maintained
by the defendant No.2 running from South to North measuring
15 feet in width and 213 feet in length approximately which is
marked as HDCEFGH as per the suit sketch. Further the plaintiff
has also sought for Permanent Injunction retraining him from
further encroaching over 'A' schedule property belonging to the
plaintiff which is marked as IJICDJ marked in the suit sketch and
also sought for Permanent Injunction retraining him from further
making any encroachment over the schedule property and also
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sought to restrain him with plaintiff the suit possession over the
'A' & 'B' schedule properties. The suit filed by the plaintiff is
neither maintainable in the law nor on facts, the plaintiff has
suppressed all the material facts before this Court at the time of
presentation of this suit. Hence the plaintiff has not approached
this Court with clean hands hence the suit filed by the plaintiff is
liable to be dismissed with exemplary cost. That originally one
Patel Munishami Reddy was the absolute owner of the property
bearing Sy.No.33 measuring 02 acre 12 guntas situated at
Thubarahalli Village, Varthur Hobli, Bangalore South Taluk. That
in order to settle the family properties Patel Munishamai Reddy
divided all the properties including Sy.No.33. That in the said
process property bearing Sy.No.33 was allotted to 8 persons. In
the said division in Sy.No.33 Jayamma was allotted 28 gutnas,
Buddappa was allotted 10 guntas, Patel Munishami Reddy
retained 36 gutnas, Chinnappa was allotted 6 guntas, Nanja
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Reddy was allotted 6 guntas and Pilla Reddy was allotted 6
guntas. That in view of same the revenue records were mutated
in their respective names and they continued to be in possession
of the said property. M. Jayamma W/o M. Nanja Reddy being the
absolute owner of 28 gutnas in Sy.No.33 and due to her inability
to cultivate the said land formed residential sites on her land
consisting of various dimensions. That while forming sites she
had formed 10 feet road on the Eastern side of her property to
have axis from the main road from South to North. That after
formation of the sites in her share she sold the same to various
prospective purchasers. That Jayamma had also formed a site
measuring to the extent of 02 Guntas 78 Square yard i.e. 64 feet
X 45 feet in all measuring 2880 square feet in Sy.No.33 situated
at Thubarahalli Village, Varthur Hobli, Bangalore south Taluk.
Smt. M. Jayamma due to her financial necessity offered to sell
the said site in favour of any of the prospective purchaser. To the
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said offer one M.D. Krishna Murthy Rao S/o V. Dashrath Rao
had agreed to purchase said site for valuable sale consideration.
In view of the same Jayamma sold the said site in favour of M.D.
Krishnamurthy Rao under registered sale deed dated 18/02/1981.
The said site was bounded on East: 10 feet road, West: road and
thereafter property of Pilla Reddy, North: remaining property in
Sy.No.33 and South: property belonging to Buddappa. That
pursuant to register sale deed dated 18/02/1981 M.D. Krishana
Murthy Rao became the absolute owner of the above said
property and he continued to be in possession without anybody's
injunction. That M.D. Krishnamurthy Rao after purchasing above
said property had got his name entered in the revenue records
from Ramagondanahalli Grama Panchayat and he was paying
taxes to the jurisdiction Grama Panchayat regularly. The
Ramagondanahalli Grama Panchayat has also assigned Khatha
No.78 to his property. That M.D. Krishnamurthy Rao in view of
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his family and legal necessity had offered to sell the above stated
property for valuable sale consideration to any prospective
purchasers. He had agreed to purchase portion of the site
measuring East to West 32 feet and North to South 45 feet
bearing Khatha No.78 bearing house list No.33 formed in
Sy.No.33. Accordingly M.D. Krishna Murthy Rao executed
registered sale deed on 02/11/1989 in his favour and he had
purchased the said site for a valuable sale consideration. In view
of the registered sale deed he became the absolute owner of the
property bearing Khatha No.78, house list No.33 formed in
Sy.No.33 measuring East to West 32 feet and North to South 45
feet and continued to be in possession of the said site. The site
purchased by him is bounded by East remaining portion of the
property bearing same Khatha No.78, house list 33 belonging to
Krishnamurthy Rao and now belonging plaintiff, West by road,
North by property belonging to Nanja Reddy and South property
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belonging to Buddappa. That in view of registered sale deed his
name was mutated in the revenue records and he is continued to
be in a possession of the said site.
52. The DW.1 further deposed evidence that M.D.
Krishnamurthy Rao after executing the sale deed in his favour
had retained remaining site measuring East to West 32 feet North
to south 45 feet in khatha No.78 house list No.33 the said
property was bounded by East - 10' feet road, West - property
sold to him in same khatha number, North - property belonging
to Venkatesh and South: property belonging to Buddappa. That
since M.D. Krishnamurthy Rao who had retained remaining site
measuring East to West 32 feet and North to south 45 feet had
also offered to sell same to prospective purchaser. One T.R.
Muniraju who is none other than his brother and the husband of
plaintiff herein had agreed to purchase the said remaining site. In
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view of the same M.D. Krishnamurthy Rao based on the request
of T.R. Muniraju sold the said site in his favour by executing a
general power of attorney in respect of site measuring to an
extent of East to West 32 feet and North to South 45 feet. In view
of the said GPA, T.R. Muniraju was put in possession of the said
site and thereafter he constructed compound surrounding to his
site by leaving 10 feet road on the Eastern side of his site. That
T.R. Muniraju based on the said power of attorney executed
registered sale deed in favour of his wife i.e., plaintiff herein on
14/03/2005. The plaintiff in said sale deed had has specifically
mentioned the boundaries of the site as East - Road and other
afterwards the house of Chowdappa, West - Property of
Savithramma and now belonging to Munivenkata Reddy i.e.
defendant No.1, North - property belonging to Venkteshappa and
South - property belongs to Buddappa. That after he purchasing
the site from M.D. Krishnamurthy Rao under a registered sale
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deed dated 02/11/1989, he had made an application to the
jurisdictional Grama panchayath to mutate his name in the
revenue records as per his possession. The revenue authorities
based on the said application conducted a spot inspection and
found that he was in possession of property measuring to an
extent of East to West 40 feet North to South 45 feet and
accordingly the revenue authorities issued Form No. 9 & 10 in
his favour. Based on the title deeds have made application to the
said Grama Panchayat to grant licenses in order to construct a
residential building in the said site. The Ramgondanahalli Group
Panchayat on verification granted license permitting him to put
up construction of residential building under its letter dated
27/06/1994 and also approved the building plan. Pursuant to the
license and approved plan he put up a residential building over
his site and he and his family members were residing in the said
building ever since 1995. As the facts of that stage the
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jurisdiction of the property purchased by him was transferred to
the jurisdiction of the defendant No.2 corporation limits during
the year 2010. That since he did not have sufficient
accommodation and that accordingly he had decided to demolish
the building constructed during 1995 and constructed new
building over the property. Accordingly he had submitted plan to
the defendant No.2 Co-operation for its approval in order to put
up a building. The defendant No.2 corporation on perusal of title
documents had approved the building plan and accordingly, he
had constructed a residential building in the said in which he was
in possession. After few days he had made an application to the
jurisdictional corporation to transfer khatha in his favour in
respect of the said site. The defendant No.2 corporation had
raised an objection stating that the measurement found in earlier
khatha certificates and sale deed does not tallying and
accordingly, he was requested to rectify the said mistake.
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Actually he was in possession of site measuring East to West 38
feet and North to South 45 feet i.e., he was in excess possession
to an extent of land measuring East to West 6 feet and North to
South 45 feet. The said excess possession was land which belong
to one Pilla Reddy and whose property is on the Western side of
his site. Pilla Reddy is none other than brother of his mother in
law. At no point of time neither Pilla Reddy nor his family
members were interfered with his possession ever since 1989 till
today. The said excess land which was in his possession is part
and parcel of Sy.No.33. In view of the said mistake in the
measurement he had requested Pilla Reddy to execute document
in his favour in respect of the excess land measuring East to West
6 feet and North to South 45 feet in order have better title. That
Pilla Reddy who is none other than the brother of his mother-in-
law executed a registered relinquishment deed in his favour and
same came to be registered on 17/12/2012. In view of the said
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registered deed he became the absolute owner of property
bearing Khatha No.78/33 measuring East to West 38' feet and
North to south 45' feet. That pursuant to said documents the
respondent No.2 mutated his name in the revenue records and
issued khatha certificate to that effect. Pursuant the same he is in
possession of his property by constructing a residential building
measuring to an extent of East to West 38 feet and North to South
45 feet as per the registered sale deeds. Jayamma while forming a
residential layout in Sy.No.33 measuring 20 guntas she had
formed 10 feet road to all her sites in order to reach main road
passing from North to South. The said road was on the Eastern
side of her property. The plaintiff had purchased a site facing the
road side and the same was measuring 10 feet road which is on
the Eastern side of her site. The plaintiff's husband had entered
into an agreement of sale and also got executed GPA in respect of
one site from M.D. Krishnamurthy Rao and had also constructed
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a compound wall to his site by leaving 10 feet road on the
Eastern side of his property and also constructed small shed on
the North East corner of his site. The plaintiff's husband based on
the said sale deed got executed registered sale deed in respect of
the said site in favour of his wife i.e., plaintiff and in the said sale
deed for the first time, the plaintiff has shown the road existed on
the Eastern side of her site. As per the GPA and the Agreement of
Sale executed in favour of plaintiff's husband there is no mention
of road in the boundaries in the said documents, from this itself it
is clear that the sale deed executed by the plaintiff's husband in
favour of the plaintiff is contrary to the boundaries mentioned in
the said GPA and agreement of sale. Hence plaintiff is making an
illegal and unlawful claim. That as per her own document there is
no 15 feet road as contended by her in her complaint averments
and no documents is produced by the plaintiff to show that, there
is 15 feet road on the Eastern side of her property. There is only
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10 feet road formed by Jayamma way back in the year 1980 and
the said 10 feet road is existing as on today in front of the all the
sites formed by her in her property. Some difference arose
between plaintiff's husband and him, hence the plaintiff's
husband in order harass him by suppressing all the material facts
and the measurements of the site purchased by him and his
possession filed suit bearing OS.No.27133/2013 seeking for a
relief of permanent injunction against him contending that he had
encroached into the property of the plaintiff's site to an extent of
5' feet on the western side of her site i.e., Eastern side of his site.
53. The DW.2 further deposed evidence that he had filed his
written statement and contended that he is not at all encroached
any single inch of land belonging to the plaintiff. In order to
harass him the plaintiff and her husband by removing the
compound wall which was existed earlier and constructed a new
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compound wall on the Eastern side of her site by leaving 15 feet
width towards the road even though the road was 10 feet width
and also contended that the plaintiff has filed the said suit only in
order to harass him. Hence he has sought for dismissal of the
suit. The plaintiff in the said suit bearing OS.No.27133/2012 had
filed an application under Order 39 Rules 1 & 2 of CPC seeking
for a relief of temporary injunction against him. He had filed his
objections and sought for dismissal of the said application. This
Court while considering the said application had appointed Court
Commissioner to inspect the said suit schedule property and
submit a report by identifying the possession of the parties as per
the sale deeds and other documents. At that point of time the
plaintiff and her husband removed the compound wall existed
earlier prior to the date of inspection by the Court Commissioner.
The Court commissioner after inspection submitted report to the
Court. This Court based on the Commissioner Report and based
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on the pleading and the documents of the parties was pleased to
hold that he had not encroached any inch of land of the plaintiff
and also recorded finding that there was only 10 feet road
existing on the Eastern side of the plaintiff's site and accordingly
dismissed application filed by the plaintiff. As the facts stood at
that stage the plaintiff by suppression of these facts once again
has filed the present suit only in order to harass him without any
basis in order by making an unlawful and illegal claim over the
suit schedule property. Hence on this count itself the suit filed by
the plaintiff is liable to be dismissed with exemplary cost. The
contention of the plaintiff that T.R. Muniraju executed registered
sale deed dated 14/03/2005 in favour of plaintiff conveying the
schedule property absolutely and fully in favour of plaintiff
which document came to be registered in the office of the Sub-
registrar, Bangalore south, Bangalore, is put to strict proof of the
defendant No.1. The contention of plaintiff that the said sale deed
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was executed for valuable sale consideration of Rs.80,000/- and
accordingly the said T.R. Muniraju had put plaintiff in peaceful
possession and enjoyment of the said property by receiving the
consideration shown in the said sale deed is denied as false and
baseless in view of the fact that T.R. Muniraju is husband of
plaintiff and question of she paying sale consideration to T.R.
Muniraju does not arise. The contention of the plaintiff that even
though the road that is situated on the Eastern side of the suit
schedule property is a 15 feet wide road is denied as false. The
said road is only 10 feet. The contention of the plaintiff that
neighboring property owners have encroached upon a portion of
the said road is also false. Further contention of the plaintiff that
at certain points the road does not actually measure 15 feet, but
in a so far as there is sufficient road space to the extent of 15 feet
but in so far as plaintiff is concerned since it is a vacant site with
fencing there is sufficient road space to the extent of 15 feet on
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the Eastern side is denied as false and baseless. The contention of
the plaintiff that one D. Rajashekar owns a site in the same road
adjacent to the suit schedule property bearing site No.253 (old
No.22) Katha No.63 measuring East to West 40 feet and North to
South 44 feet and when the neighboring property owner namely
Munishamappa and others had encroached upon the said road,
thereby resulting in decreasing the width of the road from its
existing 15 feet, the said D. Rajashekar had filed suit in
OS.No.2044/2012 on the file of the additional city civil judge at
Bangalore for mandatory injunction for removal of encroachment
and had also sought for other allied reliefs is also denied as false
and baseless and also same is not within his knowledge and the
said suit is nothing to do with the present suit and also the relief
claimed in the present suit. The contention of the plaintiff that,
the plaintiff as well as he who were in good terms with each
other till October 2012 and since the plaintiff could not
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frequently visit the suit schedule property and there was no
occasion for the plaintiff that he would demolish the construction
and put up fresh construction in the portion of the land owned
and possessed by him and the plaintiff absolutely had no
objection for the same and the defendant No.1 had also agreed
and promised that he would raise construction within the
measurement shown in the sale deed dated 02/11/1989, under
which he had purchased the property situated on the Western side
of suit schedule property is denied as false and baseless. The
contention of the plaintiff that, on one casual visit to the schedule
property on 06/11/2012 the plaintiff found that he had made
markings on the ground and it clearly indicated that he intended
to encroach upon a portion of the property owned and possessed
by the plaintiff towards the Western side of the suit schedule
property and which fell within the property purchased by the
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plaintiff after the 15 feet road and the plaintiff had absolutely no
idea as to why such markings were made is false.
54. The DW.1 further deposed evidence that the contention of
the plaintiff that immediately plaintiff and her General Power of
Attorney holder contacted the defendant No.1 and asked as to
why such markings are made in a portion of the property
belonging to the plaintiff but, he refused to give any proper reply,
but as on 06/11/2012 there were no any constructions or there
was no any encroachments made to lay foundation in any portion
of the suit schedule property is false. Neither plaintiff nor her
husband had approached me at any point of time and they were
well within the knowledge of the fact that he was in possession of
the property measuring East to West 38 feet and North to South
45 feet from several years as per the registered sale deeds. The
contention of the plaintiff that, the plaintiff and her husband once
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again directly contacted him and enquired as to why he is
attempting to encroach on a portion of the suit schedule property,
for which he claimed that there was no any intention to encroach
upon the property of the plaintiff but his workers by oversight
have made markings over the same is also denied as false and
baseless. The contention of plaintiff that on 07/11/2012 in
morning at about 10 a.m., she was informed by some known
persons in the locality that he had started digging up the earth of
foundation work in the property belonging to the plaintiff and
immediately she and her husband rushed to the spot and found
that he was not available and when she made enquiries with the
workmen as to why the markings are still there, said worker
informed the plaintiff and her husband that he had instructed
them to dig up the marked portion and lay foundation thereon in
order to raise construction, then she realized that he is attempting
to encroach a portion of her property and all efforts made to
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convince his workers at the spot failed to yield any results is also
denied as false and baseless. At no point of time he had
encroached the property of the plaintiff, hence the question of
demolishing does not arise. The plaintiff in order to further harass
him has filed various petitions before this Court as well as
Hon'ble High Court of Karnataka and also appeal before the
Karnataka Appellate Tribunal by seeking for demolish of the
building construct by him without any basis and contrary of
documents. That he has invested huge lakhs of amount to put up
construction over his property and as on today he and his family
members are residing and from the conduct of the plaintiff and
her husband it is clear that she has not approached this court with
clean hands and accordingly the suit filed by the plaintiff is
deserve to be dismissed with exemplary cost. That during the
course of cross-examination of PW.1 i.e., husband of the plaintiff
herein has categorically admitted the boundaries stated in
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documents produced in support of her case and also admitted that
they does not exist 15 feet road in the said documents as
contended in his plaint averments. During the course of cross
examination PW.1 admitted that in between his building and the
sites of the plaintiff there exist a compound wall and also there
exist a stope slaps which were installed several years ago by the
both the parties. The PW.1 in his cross examination admits that
the Court Commissioner appointed by this Court had preferred
sketch and submitted report after considering the all the
documents produced by both the parties. From this itself it is
clear that, the plaintiff has made an illegal and unlawful claim
without producing any valid documents in support of her case.
That he has not encroached property owned by the plaintiff. The
plaintiff and her husband themselves have removed the
compound which is exist ever since 1989 and construct a
compound wall with hallow cement bricks by leaving 15 feet
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road in order to harass him by stating that, he has encroached
their property. There is only 10 feet road to the property of the
plaintiff and there is no 15 feet road. The plaintiff and her
husband have encroached into their property and making an
unlawful and illegal claim in respect of his property. The DW.1
prays to dismiss the suit with exemplary costs. In support of his
oral evidence DW.1 marked the documents ExD1 to ExD77.
55. The plaintiff in both clubbed suits are one and the same
and GPA holder examined as PW.1 as discussed above and
deposed the evidence that, the plaintiff Geetha is the absolute
owner and in peaceful possession and enjoyment of the schedule
property and in support of oral evidence the PW.1 marked the
documents ExP1 to ExP64. The ExP1 is General Power of
Attorney executed by plaintiff Geetha in favour of her husband
T.R. Muniraju for conducting the suit. The ExP2 is original sale
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deed dated 18/02/1981 executed by M.K. Krishnamurthy Rao S/o
V. Dasharatha Rao in favour of M. Jayamma W/o M. Nanja
Reddy in respect of 2 guntas 78 gajas in Sy.No.33 of Thubarahalli
Village of Varthur Hobli, Bangalore South Taluk bounded by
East:10 feet width road, West: Road afterwards land of P. Pilla
Reddy and North : Remaining land of said property, South: Land
of Buddappa. The ExP3 & ExP4 are Encumbrance certificates for
the year 01/04/2004 to 15/03/2005 and 01/04/1980 to 31/03/2004
and in ExP4 there is entry regarding sale of property by Jayamma
in favour of M.D. Krishnamurthy Rao and in ExP3 sale of said
property by M.D. Krishnamurthy Rao through GPA Holder T.R.
Muniraju in favour of Geetha. The ExP5 is unregistered
agreement of possession of property dated 28/08/1989 executed
in favour of T.R. Muniraju S/o N.P. Ramaiah Reddy by M.D.
Krishnamurthy Rao S/o V. Dasaratha Rao relating to the property
measuring 2 guntas 78 gajas in Sy.No.33 Thubarahalli Village,
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wherein possession of 1 gunta 39 chadara gajas was handed over
to Muniraju. The ExP6 is affidavit executed by M.D.
Krishnamurthy Rao S/o V. Dasaratha Rao regarding taking
amount of Rs.12,000/- from Muniraju in view of execution of the
sale deed.
56. The ExP7 is unregistered power of attorney dated
28/08/1989 executed by M.D. Krishnamurthy Rao S/o V.
Dasaratha Rao in favour of T.R. Muniraju S/o N.P. Ramaiah
Reddy relating to property measuring 1 gunta 39 chadara gaja out
of 2 gunta 78 chadara gajas in Sy.No.33 of Thubarahalli Village.
The ExP8 is original registered sale deed dated 14/03/2005
executed by T.R. Muniraju S/o N.P. Ramaiah Reddy as GPA
holder of M.D. Krishnamurthy Rao S/o V. Dasaratha Rao in
favour of G.Geetha W/o T.R. Muniraju relating to the property
mentioned in the schedule bearing No.33 House list katha No.78
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situated at Thubarahalli Village, Varthur Hobli, Bangalore East
Taluk within Ramagondanahallai Panchayath Area measuring
East to West 32 feet and North to South 45 feet bounded by East:
Road and house of Chowdappa, West: Property of Savithramma
now belongs to Munivenkatareddy in same survey number,
North: Property of Venkateshappa and South: Property of
Buddappa. The ExP9 & ExP10 are Tax Paid receipts.
57. The ExP11 is certificate and ExP12 is DCB Register
Extract mentioning the name of plaintiff Geetha to the property
No.67 of Thubarahalli Village. The ExP13 is certified copy of the
sale deed dated 02/11/1989 executed by M.D. Krishnamurthy Rao
S/o V. Dasaratha Rao in favour of Munivenkata Reddy S/o N.P.
Ramaiah Reddy in respect of katha No.78 and house list No.33
measuring East to West 32 feet and North to South 42 feet of
Thubarahalli Village bounded by East : property of Muniraju,
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West: Road, North: property of Nanja Reddy and South: property
of Buddappa. The ExP14 is complaint given by plaintiff against
Munivenkatareddy S/o Ramaiah Reddy to Joint Commissioner of
BBMP and ADGP Bengalore Metroplitan Task Force mentioning
about obstruction causing by Munivenkatareddy to her property.
The ExP15 is endorsement given by BMTF Police Station
mentioning the matter is in Civil nature and approach the Civil
Courlt. Further ExP16 is information furnished by BBMP,
Bengaluru. The ExP17 is notice given by BBMP to the
Munivenkatareddy mentioning that T.R. Muniraju given a
complaint in property No.85/66 of Thubarahalli Village she is
constructing the building by violating the sanctioned plan and on
03/12/2012 the officers of BBMP, Bengaluru visited and bound
that in the records there is an area of 32 X 45, but in the katha
property measurement mentioned as 40 X 48 and also there is
construction of building by violating the plan and informed to
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demolish the illegal construction. The ExP18 is information
produced by the BBMP, Bengaluru to Geetha and ExP19 is
proceeding of BBMP and Ex.P20 is order passed U/s 321(1) &
(2) of Karnataka Municipoal Corporation Act by BBMP
mentioning that Munivenkatareddy is constructing the building in
his katha No.85/66 of Thubarahalli Village in Ward No.85 by
violating the sanctioned plan and earlier notice was given for
demolishing the illegal construction, but same is not followed and
thereby he has violated the provisions of Sec.321(1) & (2) of
KMC Act and informed Munivenkatareddy to vacate the building
and also given explanation within seven days. The ExP21 is
survey sketch and all these ExP19 to ExP21 information are
furnished to plaintiff Geetha along with ExP18 by BBMP,
Bengaluru under RTI Act.
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58. The ExP22 is notice given by the plaintiff Geetha to BBMP
Bengaluru on 27/05/2013 mentioning that one Munivenkatareddy
claiming that there is only 10 feet road and her property should be
measured immediately after the said 10 feet road, but in reality it
is about 15' well developed road with all amenities provided to
the houses on either side and demarcate her property after the said
15 feet road as per the measurement furnished in the sale deed
and as per the measurement available in their records. In the
circumstances the authority to take urgent and immediate steps to
clear the 15 feet road encroachment in the entire stretch failing
which to take proper action. The ExP23 is postal receipt and
ExP24 is postal acknowledgement regarding the receipt of notice
by BBMP.
59. The ExP25 is notice given by BBMP, Bengaluru to
plaintiff Geetha for appearing in the schedule property on
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11/01/2013 and BBMP going to measure the schedule property as
per the direction of the Court in OS.No.27133/2012. The ExP26
is certified copy of the release deed executed in favour of R.
Munivenkatareddy S/o N.P. Ramaiah Reddy by P. Pilla Reddy S/o
Muniyappa Reddy @ Annaiah Reddy relating to an extent of
6X45 feet old katha No.33 old V.P. Katha No.78 and new katha
No.66 at present BBMP katha No.85/66 of Thubarahalli Village,
Ward No.85, Varthur Hobli, Bangalore East Taluk bounded by
East: 32 X 45 area in the same property, earlier purchased from
M.D. Krishnamurthy Rao, West: Road, North :House of
Venkatesh Prasad S/o Nanjareddy and South: Property of
Muniswamappa.
60. The ExP27 is certified copy of the sale deed dated
12/08/1994 executed in favour of Puttamma W/o Doddanna by
M. Chinnappa S/o Late Buddasppa in respect of House No.52,
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V.P. Katha No.33 situated at Thlubarahalli Village, Varthur Hobli,
Bangalore South Taluk measuring East to West 40', North to
South 44'. The Ex.P28 is certified copy of the sale deed dated
26/05/1980 executed by Maji Patel Muniswamappa S/o Late
Muniyappa Reddy @ Nadupanna in favour of P. Pillareddy S/o
Late Muniyappareddy in respect of 6 guntas out of Sy.No.33 of
Thubarahalli Village, Varthur Hobli, Bengaluru North Taluk
bounded by East:15 feet road connecting to Bangalore Vartuhur
Road, West: Sy.No.1 and property of Narayanappa, North:
Property of Buddappa in the same survey number, South:
Property of Nanjappa Reddy, land of Jayamma in the same survey
number. The ExP29 is sanctioned plan obtained by defendant
Munivenkatareddy for construction of the building in his site. The
ExP30 to ExP33 are tax paid receipts. The ExP34 is rough sketch
of the schedule property. The ExP35 to ExP50 marked as
photographs and ExP51 is CD as they belongs to schedule
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property. The ExP52 is the sanctioned plan obtained by defendant
Munivenkatareddy for construction of the building in his site.
61. The ExP53 is certified copy of the memorandum of appeal
in Appeal No.257/2013 before the Karnataka Appellant Tribunal
at Bengaluru which is filed by Munivenkatareddy S/o N.P.
Ramaiah Reddy against the Commissioner and AEE and AE of
BBMP, Bengaluru challenging the order passed by BBMP
Bengaluru on 25/02/2013 in No.BBMP/SA KA/HOO
VI/CO/04/12-13 U/s 321(3) of KMC Act along with order sheet
in the said case and said appeal was allowed and order passed by
the BBMP was set aside and matter remanded to proceed with the
stage of preliminary notice before passing the order and securing
the presence of the appellants and conduct spot mahazar in his
presence and preparation of detailed mahazar and sketch showing
the unauthorized construction if any and after confirmation of the
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violations if any to proceed U/s 321 of KMC Act. The ExP54 is
certified copy of the order sheet in OS.No.25115/2013 of XIII
Addl. City Civil Court, wherein the order sheet dated 29/09/2015
discloses that the suit is dismissed as not pressed as per the memo
filed by the plaintiff for withdrawal of the suit.
62. The ExP55 is certified copy of the Gift Deed dated
27/06/2019 executed by Munivenkata Reddy S/o N.P. Ramaiah
Reddy in favour of Prathibha M W/o Sathisha and D/o R.
Munivenkatareddy to property bearing katha house No.188
bearing old No.66 present BBMP katha No.85/66 measuring East
to West 38' and North to South 45 feet of Thubarahalli Village,
Varthur Hobli, Bangalore East Taluk bounded by East: Property
belonging to G. Geetha, West: Road, North: Property belonging
to Venkatesh S/o Nanja Reddy and South: Property belonging to
Muniswamappa S/o Buddappa. The ExP56 is certified copy of
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the order sheet and ExP57 is certified copy of plaint in
OS.No.485/2011 and the said suit is filed by Prathibha M against
Munivenkata Reddy and others before 1 st Addl. Civi Civil Court,
Bengaluru which is filed by Prathibha M against Munivenkata
Reddy and others for Partition & Separate Possession. The ExP58
is certified copy of the Judgement in OS.No.485/2011 filed by
Prathibha M against Munivenkata Reddy and others for Partition
& Separate Possession and said suit was decreed and The ExP59
is decree in the said suit. The ExP60 is certified copy of the order
sheet in OS.No.2044/2012 and ExP61 is certified copy of the
plaint in the said suit before 1st Addl. Civil Civil Court, Bengaluru
filed by B. Rajashekar S/o Late Doddanna against
Muniswamappa S/o Late Buddasppa Reddy & others. The ExP62
to ExP65 are certified copies of written statements in
OS.No.2044/2012.
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63. On the contrary the defendant No.1 Munivenkata Reddy in
both suits are common and he deposed the common evidence as
DW.1 as discussed above and in support of his oral evidence
DW.1 marked the documents ExD1 to ExD77. The ExD1 to
ExD3 are photographs marked in confrontation with PW.1 by
defendant side. The ExD4 is certified copy of the sale deed dated
18/02/1981 executed by M. Jayamma W/o M. Nanjareddy in
favour of M.D. Krishnamurthy Rao S/o V. Dasaratha Rao relating
to the property 2 guntas 78 gajas in out of Sy.No.33 of
Thubarahalli Village, Varthur Hobli, Bengaluru South Taluk
bounded by East: 10 feet road, West: Road and property of Pilla
Reddy, North: Property of same survey number, South: Property
of Buddappa. The ExD5 is certified copy of the sale deed dated
02/11/1989 executed by M.D. Krishnamurthy Rao S/o V.
Dassaratha Rao in favour of R. Munivenkatareddy S/o N.P.
Ramaiah Reddy in respect of property bearing katha No.78 house
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list No.33 measuring East to West 32 feet and North to South 42
feet of Thubarahalli Village, Varthur Hobli, Bangalore South
Taluk bounded by East: Property of R. Muniraju, West: Road,
North: Property of Nanjappa Reddy and South: Property of
Buddappa. The ExD6 is DCB Register Extract for the year 1989-
90 showing the name of Krishnamurthy to property No.33 and
afterwards the name of Munivenkatareddy. The ExD7 is DCB
Register Extract for the year 1991-92 wherein the name of
Munivenkatareddy i.e., defendant name appeared to the property
No.33. The ExD8 is license issued by Grama Panchayath to the
defendant R. Munivenkatareddy for construction of building in
his property. The ExD9 to ExD22 are tax paid receipts by
Munivenkatareddy. The ExD23 to ExD32 are photographs as they
belongs to property of defendant No.1. The ExD33 is certified
copy of the sale deed dated 18/02/1981 executed by M. Jayamma
W/o Nanja Reddy in favour of Mallamma W/o Ramaiah in
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respect of Sy.No.33 measuring 2 guntas and 78 gajas of
Thubarahalli Village, Varthur Hobli, Bangalore South Taluk
bounded by East - land of Narayanappa, West - 10 feet road,
South - property of Chowdappa and North - main road. The
ExD34 is certified copy of sale deed dated 18/02/1981 executed
by M. Jayamma W/o Nanja Reddy in favor of Lakshmamma W/o
A. Venkata Reddy in respect of 1 gunta 39 chadara gaja in
Sy.No.33 of Thubarahalli Village, Varthur Hobli, Bangalore South
Taluk bounded by East - 10' road, West - land of Kamalamma,
North - land of Narayanappa and South - land of Chowdappa.
The ExD35 to ExD52 are Record of Rights of Sy.No.33 of
Thubarahalli Village, Varthur Hobli, Bangalore East Taluk. The
ExD54 is letter of BBMP to the defendant regarding information
called under RTI Act and Ex.D55 is the information furnished
under the RTI Act those are proceedings of the BBMP relating to
katha No.85/86 of Thubarahalli Village. The ExD56 & ExD57 are
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sketch prepared by the surveyor relating to the said katha No.85,
wherein it is mentioned that katha No.85 measuring East to West
38 feet and North to South 45 feet in Sy.No.33 of Thubarahalli
Village is belongs to R. Munivenkatareddy. The ExD58 is
house/land assessment extract for the year 1998-99 wherein the
name of defendant R. Munivenkatareddy mentioned to the
property No.66 measuring 40X58 of Thubarahalli Village. The
ExD59 is house/land assessment extract for the year 2004-05
wherein the name of defendant R. Munivenkatareddy mentioned
to the property No.66 measuring 40X58 of Thubarahalli Village.
The ExD60 is certificate issued by BBMP, Bengaluru stating that
Sy.No.85 old No.66 property situated at Thubarahalli Village is in
the name of Munivenkatareddy S/o Nallurahalli Ramaiah Reddy
and ExD61 is DCB Register Extract of the said property and
ExD62 is another certificate of same property.
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64. The ExP63 is the DCB Register Extract for the year 2011-
12 wherein name of defendant No.1 Munivenkatareddy appeared
to the property old No.66 Sy.No.85 of Thubarahalli Village. The
ExD64 is sketch of katha No.85/86 of Thubarahalli Village
prepared by Surveyor of BBMP. The ExD65 is certified copy of
the release deed executed by P. Pilla Reddy S/o Late Muniyappa
Reddy @ Thotada Annaiah Reddy in favour of defendant No.1 R.
Munivenkata Reddy S/o Late N.P. Ramaiah Reddy relating to
property measuring to an extent of 6'X45' property No.33 old
V.P.Katha No.66 at present BBMP katha No.85/86 of
Thubarahalli Village of BBMP Ward No.85 of Varthur Hobli,
Bangalore East Taluk. The ExD66 to ExD76 are photographs and
ExD77 is the C.D marked as they belongs to the property of
defendant No.1.
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65. The plaintiffs in both suits are one and the same and in both
suits the burden is on the plaintiffs to prove that, she is in lawful
possession and enjoyment of the schedule property mentioned in
the plaint. The plaintiff in OS.No.2532/2013 has to prove that she
is the absolute owner of the suit schedule 'A' & 'B' property. But
the defendant No.1 is trying to encroach upon the suit schedule
'A' property and further the plaintiff has to prove that the alleged
registered release deed dated 17/12/2012 executed by defendant
No.3 in OS.No.2532/2013 is sham and created document and
same is not binding on her. The GPA holder of the plaintiffs in
both suits examined as PW.1 as discussed above. The plaintiffs in
both suits contention that towards Eastern side of her suit
schedule property there is existence of 15' width road and said
road is only access to her to reach Bangalore Varthur Road, there
is no access to her property from any other side. On the side of
the property of the defendant No.1, defendant property is situated
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and other two land owners have raised construction, that some of
the neighboring property owners have encroached upon portion
of the said road and hence at certain point the road does not
actually measure 15', but it is a vacant site with fencing there is
sufficient road space to the extent of 15' on Southern side. The
plaintiff's contention that defendant No.1 in OS.No.2532/2013
without leaving any setback on all sides and even going to the
extent of encroach upon her schedule property falsely claiming
that there is only 10' access road to reach the property, but in
reality there is 15' wide road and same is submitted in the records.
Even further submits that encroachment made on 17/03/2013 by
the defendant No.1. Then the burden lies upon the plaintiffs to
prove that there is 15' wide road on the Eastern side of her 'A'
schedule property mentioned in the plaint OS.No.2532/2013. The
ownership of the plaintiff's property as well as defendant NO.1
property is not in dispute, but only dispute is regarding the road
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situated on the Eastern side of the plaintiffs property. The plaintiff
in both suits is the proper person to appear before the Court and
depose the evidence, but she has not appeared before the Court
and on her behalf GPA holder PW.1 deposed the evidence who is
none other than the husband of the plaintiff. The PW.1 in his
cross examination deposed the evidence that "ExP2 is the sale
deed dated 18/02/1981 regarding purchase of 2 guntas and 78
yards in Sy.No.33 of Thubarahalli Village, Varthur Hobli,
Bengaluru South Taluk by M.D. Krishnamurthy Rao S/o V.
Dasaratharao from M. Jayamma W/o Nanja Reddy, wherein
in the schedule the boundaries mentioned are towards
East:10' wide road, West: Road and land of P. Pilla Reddy,
North: Remaining land of same survey number and South:
property of Buddappa relating to the said ExP2. The PW.1 in
his cross examination deposed evidence that "I have gone
through Ex.P2 sale deed. The contents of the same are true
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and correct. In Ex.P2 measurement of site is mentioned as 2
guntas 78 chadara gajas but there is no mention of sites
numbers and it is mentioned that towards East there is a road
with of 10 feet is situated, but there is no mention of 10 feet
road towards East in the sale deed executed in the name of
plaintiff in both the suits, but, the witness volunteers that,
there is mention of road towards East of the property
mentioned in the sale deed of the plaintiff." The PW.1 marked
the sale deed ExP8 dated 14/03/2005 executed by M.D.
Krishnamurthy Rao S/o V. Dasaratha Rao to plaintiff Geetha W/o
T.R. Muniraju wherein the schedule the property bearing No.33
house list katha No.78 situated at Thubarahalli Village, Bengaluru
East Taluk measuring East to West 32' and North to South 45'
bounded by East: Road and house of Chowdappa, West: Property
of Smt. Savithramma now belongs to Munivenkatareddy in the
same number, North: Property of Venkatesh and South: Property
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of Buddappa. The said M.D. Krishnamurthy Rao is the vendor of
the plaintiff who purchased the same property from Jayamma as
per ExP2, but in ExP2 in the boundary towards East only 10' road
is mentioned and in the sale deed of plaintiff ExP8 towards East
road and house of Chowdappa is mentioned. In both ExP2 &
ExP8 sale deeds there is no mention about 15' road towards
Eastern side of the property of the plaintiff. But PW.1 in his cross
examination deposed the evidence that, "It is true to suggest
that from the date of execution of ExP2 in the year 1981 there
exists a road of 10 feet width on the Eastern side of the
property. As per ExP2 there is no mention of existence of 15
feet width road on the Eastern side of the property. It is true
to suggest that one P. Krishna Murthy executed GPA in
favour of me and declaration as per Ex.P5 to 7. After
verifying all the records and after visiting the property I got
executed ExP5 to 7 in favour of me from P. Krishnamurthy.
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In ExP5 there is no mention of existence of road to the
property mentioned in ExP5. So also there is no mention
about existence of road in ExP7 in respect of the property
mentioned therein." That ExP5 is the agreement handing over
possession of the property by M.D. Krishnamurthy Rao in favor
of present PW.1 T.R. Muniraju S/o N.P. Ramaiah Reddy relating
to the same property mentioned in ExP2, but in ExP5 of the
schedule towards East it is mentioned as house of Chowdappa
and further ExP7 is GPA executed by same M.D. Krishnamurthy
Rao in favour of present PW.1 T.R. Muniraju regarding same
property, wherein also in the schedule towards East house of
Chowdappa is mentioned. Therefore on perusal of the documents
produced by the plaintiff marked as ExP2 to 7 it is clear that in all
these documents there is no mention about 15' width road towards
Eastern side of the property of the plaintiff. The PW.1 in his cross
examination admitted the fact and deposed the evidence that "It
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is true to suggest that in Ex.P8 road is mentioned towards
East, but in ExP5 & 7 there is no mention about existence of
the Road."
66. Further in the cross-examination the PW.1 deposed the
evidence that "Jayamma has formed layout in her land. It is
false to suggest that, Jayamma left 10 feet road in the layout.
The witness volunteers that 15 feet road has been left by
Jayamma at the time of formation of layout. The ExP27 & 28
are documents produced by me showing existence of 15 feet
road. ExP27 & 28 are pertaining to the land of Buddappa, but
not pertaining to the land of Jayamma. Jayamma is not party
to ExP27 & 28. I have not produced any documents showing
existence of 15 feet road in the layout formed by Jayamma."
Therefore from the evidence of PW.1 it is crystal clear that there
is no existence of 15 feet road in the layout formed by Jayamma
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who is originally owner of Sy.No.33 of Thubarahalli Village.
Further P.W-1 in the cross-examination deposed the evidence
that, "It is true to suggest that in the sale deed executed by me
in favour of plaintiff there is no mention of existence of width
of road towards East of the schedule property." Therefore
from the evidence of PW.1 as well as the sale deed of plaintiff
ExP8 and also sale deed of her vendor ExP2 it is crystal clear that
there is no existence of 15 feet road towards Eastern side of the
property of the plaintiff.
67. Further the plaintiff in OS.No.2532/2013 contended that the
defendant No.1 encroached upon her 'A' schedule property
towards Eastern side. But to prove the encroachment the plaintiff
not produced any specific documents. Further on this aspect the
PW.1 in his cross-examination deposed evidence that "It is true
to suggest that, the defendant had put up building on his side
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and he was residing therein till the year 2012. I never objected
the defendant of his possession over his property. It is true to
suggest that, the defendant by the side of stone slab has put
up permanent compound wall which bifurcates the suit
schedule property as well as property of defendant. It is true
to suggest that I had not objected for the said compound wall
put up by the defendant in the year 2012." Therefore from the
evidence of PW.1 it is clear that the defendant already constructed
the wall between property of himself and plaintiff which
bifurcates their property, but in the entire cross-examination the
PW.2 nowhere deposed that the said compound wall constructed
by the defendant No.1 by encroaching upon the property of the
plaintiff towards Eastern side even he deposed that he has not
objected for the said compound wall put up by the defendant
No.1 in the year 2012. Hence when the suit filed by the plaintiff
in OS.No.27133/2012 and OS.No.2532/2013 filed by the plaintiff
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already the defendant No.1 had constructed the compound wall in
his property. The ExD67 to ExD76 photographs marked by DW.1
discloses the compound wall bifurcating the property of the
plaintiff and defendant No.1.
68. Further the plaintiff in OS.No.27133/2012 filed IA.No.4 for
appointment of Surveyor for survey of property of plaintiff and
defendant No.1 and said application was allowed on 11/01/2013
and Court Commissioner was appointed, one Sri Shahin Pasha
DCE (AMIE) Proprietor, Savera Constructions, Engineers and
builders, No.6, Dayananda Sasgar Engineering College Road,
Kadirenahalli Cross, B.S.K, 2nd stage, Bangalore as Court
Commissioner and also Court Commissioner warrant was issued.
They again on 21/01/2017 IA No.5 U/s 151 of CPC was filed by
plaintiff for appointing another Court Commissioner, in the order
sheet it is mentioned that the advocate for defendant filed
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objection to the name of the Court Commissioner suggested by
the plaintiff and thereafter on the consent of both advocate J.E of
BBMP working in Mahadevapura Ward No.85 is appointed as
Court Commissioner and said Court Commissioner submitted
report on 15/02/2017. The said Court Commissioner report is
marked as ExD64 which includes the sketch, mahazar prepared
by Court Commissioner with report, as per the Court
Commissioner report the construction of the building in katha
No.85 of Munivenkatareddy is under progress, but on spot
inspection is found there is no encroachment towards the Eastern
side of the property and building is constructed in the
measurement East to West 39 feet 4 inch and North to South 40
feet. To the said Court Commissioner report both plaintiff and
defendants have not filed any objections. Therefore from the
Court Commissioner Report it is clear that the defendant
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Munivenkatareddy had not encroached in the Eastern side of the
property of the plaintiff.
69. Further the plaintiff in OS.No.2532/2013 contended that the
alleged registered released deed dated 17/12/2012 executed by
defendant No.3 in favour of defendant No.1 is sham and created
document and same is not binding on her. As per the defendant
No.1 Munivenkatareddy one Pilla Reddy S/o Late Muniyhappa
Reddy @ Thotada Annaiah Reddy relinquished 6'X45' area
belonging to him in property No.33 Old V.P. No.78 then new
Katha No.66 and at present BBMP Katha No.85/66 of
Thubarahalli Village, Varthur Hobli, Bangalore East Taluk and
DW.1 in his chief evidence marked certified copy of the said
release deed as ExD65. The plaintiff counsel cross examined
DW.1, but to disprove the contention taken in the plaint that
already release deed dated 17/12/2012 executed by defendant
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No.3 in favour of defendant No.1 is sham and created document,
the plaintiff has not produced any documents on her side. As in
the cross-examination of DW.1 the plaintiff counsel suggested to
DW.1 and he deposed the evidence denying the suggestion that he
and Pilla Reddy have created documents relating to the 6'X45'
area. Except making allegations the plaintiff has not produced
any cogent document to prove that the said release deed ExD65 is
created document. Therefore the plaintiff failed to prove that the
said release deed dated 17/12/2012 is created by defendant No.1
& 3 of OS.No.2532/2013. The plaintiff of OS.No.2532/2013
proved that she is owner of the property mentioned in her sale
deed as per Ex.P8, but failed to prove her lawful ownership and
possession over the suit schedule 'B' property and also failed to
prove that the defendants are trying to interfere with the
possession and enjoyment in 'A' & 'B' schedule property. Further
plaintiff in OS.No.2532/2013 failed to prove that the alleged
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registered deed dated 17/12/2012 executed by defendant No.3 in
favour of defendant No.1 is created document. The plaintiff of
OS.No.27133/2012 proved that she is in possession and
enjoyment of the suit schedule property mentioned in the sale
deed as per Ex.P8, but failed to prove the illegal interference in
the said property by the defendants. Therefore the plaintiff in both
suits not entitled for the relief of Declaration and Permanent
Injunction as prayed. Hence the plaintiff of OS.No.2532/2013
failed to prove Issue Nos.1, 2, 3 & 5 and partly proved Issue
No.4. Further the plaintiff of OS.No.27133/2012 proved Issue
No.1 and failed to prove Issues No.2 & 3. Therefore, I answer
Issue No.1 to 3 and 5 in the Negative and Issue No.4 partly in
Affirmative and partly in Negative in OS.No.2532/2013.
Further I answer Issue No.1 in Affirmative and Issue No.2 &
3 in negative in OS.No.27133/2012.
150
O.S.No.2532/2013
Common Judgment C/w OS.No.27133/2012
70. Issue No.6 in OS.No.2532/2013 and Issue No.4 in
OS.No.27133/2012:
In view of above discussion I proceed to pass following:
:ORDER:
The suit of plaintiff in OS.No.2532/2013 is hereby dismissed with costs.
The suit of plaintiff in OS.No.27133/2012 is hereby dismissed with costs.
Draw decree accordingly.
Keep original of this common Judgment in OS.No.2532/2013 and certified copy of common Judgment in OS.No.27133/2012.
(Dictated to the Stenographer, typed by him, taken print out, corrected, signed and then pronounced by me in the open Court on this 29th day of November 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE 151 O.S.No.2532/2013 Common Judgment C/w OS.No.27133/2012 :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW1 : T.R. Muniraju S/o Late N.P. Ramaiah Reddy PW2 : Rajashekar S/o Late Doddanna PW3 : C. Nagaraj S/o Late Chinnappa DOCUMENTS MARKED FOR THE PLAINTIFF :
ExP1 : General Power of Attorney ExP2 : Sale deed ExP3&4 : Two Encumbrance Certificates ExP5 : Unregistered possession agreement ExP6 : Affidavit ExP7 : General Power of Attorney ExP8 : Sale deed ExP9&10 : Two Tax paid receipts ExP11 : Certificate issued by BBMP ExP12 : Property extract ExP13 : Certified copy of sale deed ExP14 : Copy of notice sent to Commissioner, BBMP,
Joint Commissioner and ADGP ExP15 : Endorsement issued by BMTF P.S 152 O.S.No.2532/2013 Common Judgment C/w OS.No.27133/2012 ExP16 : Letter of AEE addressed to plaintiff ExP17 : Notice dated 07/12/2017 ExP18 : Letter of Asst. Revenue Officer of BBMP ExP19 : Certified copy of note sheet ExP20 : Temporary provisional orders passed U/s 321 (1) & (2) of KMC Act ExP21 : Sketch ExP22 : Copy of legal notice ExP23 : Postal receipt ExP24 : Postal Acknowledgement ExP25 : Letter of AE of BBMP ExP26 : Certified copy of relinquishment deed of immovable property (release deed) ExP27&28 : Two certified copies of sale deeds ExP29 : Sanction plan ExP30to33 : Four tax paid receipts ExP34 : Rough sketch ExP35to50 : 16 photographs ExP51 : CD ExP52 : Approved Plan ExP56 : Copy of order sheet in OS.No.485/2011 153 O.S.No.2532/2013 Common Judgment C/w OS.No.27133/2012 ExP57 : Copy of plaint in OS.No.485/2011 ExP58 : Copy of Judgement in OS.No.485/2011 ExP59 : Copy of Decree in OS.No.485/2011 ExP60 : Copy of order sheet in OS.No.2044/2012 ExP61 : Copy of plaint in OS.No.2044/2012 ExP62to65 : Four copies of written statements in OS.No.2044/2012 WITNESSES EXAMINED FOR THE DEFENDANTS:
DW1 : Munivenkata Reddy S/o Late N.P. Ramaiah Reddy EXHIBITS MARKED FOR THE DEFFENDANTS ExD1to3 : Photographs ExD4 : Copy of sale deed dated 18/02/1981 ExD5 : Copy of sale deed dated 02/11/1989 ExD6&7 : Two demand register extracts ExD8 : House construction license ExD9to22 : 14 Kandayam paid receipts ExD23to32 : 10 Photographs ExD33&34 : Copies of sale deeds dated 18/02/1981 154 O.S.No.2532/2013 Common Judgment C/w OS.No.27133/2012 ExD35to52 : 19 RORs relating to Sy.No.33 ExD54 : Endorsement issued by BBMP ExD55 : Copy of Order of BBMP ExD56&57 : Two survey sketch ExD58 : Assessment extract relating to property No.66 ExD59 : Demand register relating to property No.66 ExD60 : Katha certificate relating to property No.66 ExD61 : Copy of Record Book ExD62 : Katha certificate relating to property No.66 ExD63 : Copy of Record Book ExD64 : Court Commissioner Report ExD65 : Copy of Release Deed ExD66to77 : 11 Photographs and Video Cassette relating to suit schedule property XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.