Bangalore District Court
Sri Ajay Vajapeyam vs ) Sri V.L. Balasubramanya on 20 January, 2022
KABC010143302010
IN THE COURT OF THE X ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH-26)
Dated this the 20th day of January, 2022
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.3356/2010
Plaintiff: Sri Ajay Vajapeyam
@ Ajay Kumar
s/o V.L. Vasudeva
Aged about 22 years
R/at No.32/3/1-03
6th Cross, Ashok Nagar
Banashankari 1st Stage
Bangalore-50 represented
by his GPA Holder Ramya
Vajapeyam d/o V.L Vasudeva
r/at No.32/3/1-03, 6th Cross
Ashok Nagar, Bangalore-50.
(By Mr.Joseph Anil Kumar, A, Adv.)
Vs.
Defendants: 1) Sri V.L. Balasubramanya
(Since dead by his LRs)
(a) Smt.Sandya
w/o Late Balasubramanya
aged about 65 years
(b) Smt.Vidya
d/o Late Balasubramanya
aged about 44 years
2 O.S.No.3356/2010
(c) Smt.Divya
d/o Late Balasubramanya
aged about 42 years
D.1(a) to (c) are r/at No.131
Manjushree Building, 5th Main
4th Block, BSK III Stage
Bangalore-85.
2) Smt.Leela Iyengar
w/o A.S. Ramaswamy Iyengar
Aged about 65 years
R/at Apt. No.103 & 104
No.32/3/1-02, 6th Cross
Ashok Nagar Banashankari
1st Stage, Bangalore-50.
3) Smt.Vatsala Mohan
s/o Sri K.N. Mohan Kumar
Aged about 38 years
R/at Apt. No.203
No.32/3/1-02, 6th Cross
Ashok Nagar Banashankari
1st Stage, Bangalore-50.
4) Smt.Vasantha Subashchandra
w/o Sri Subashchandra, major
R/at Apt. No.303
No.32/3/1-02, 6th Cross
Ashok Nagar Banashankari
1st Stage, Bangalore-50.
5) Sri J.S Srinivas
s/o Sri Satyanarayana, major
R/at Apt. No.204
No.32/3/1-02, 6th Cross
Ashok Nagar Banashankari
1st Stage, Bangalore-50.
6) Smt.Radha Narasimhan
w/o Sri Narasimhan, major Rat Apt.
R/at Apt. No.302
No.32/3/1-02, 6th Cross
Ashok Nagar Banashankari
3 O.S.No.3356/2010
1st Stage, Bangalore-50.
7) Smt.Bindu Gopal Rao
d/o Sri Gopal Rao, major
R/at Apt. No.202
No.32/3/1-02, 6th Cross
Ashok Nagar Banashankari
1st Stage, Bangalore-50.
8) Sri V. Vishwanath
s/o Sri Vasudev, major
R/at Apt. No.201
No.32/3/1-02, 6th Cross
Ashok Nagar Banashankari
1st Stage, Bangalore-50.
9) Sri M. Chandrashekar
s/o Late B.M. Lakshmipathaiah
Aged about 75 years
R/at Apt. No.401
No.32/3/1-02, 6th Cross
Ashok Nagar Banashankari
1st Stage, Bangalore-50.
10) Smt.Sandhya Swetadri
w/o Sri Swetadri
Aged about 44 years
R/at Apt. No.304
No.32/3/1-02, 6th Cross
Ashok Nagar Banashankari
1st Stage, Bangalore-50.
11) The Commissioner
BBMP, N.R.Square
Bangalore-02.
12) The Joint Commissioner
BBMP, N.R.Square
Bangalore-02.
13) The Deputy Commissioner (South)
BBMP, N.R.Square
Bangalore-02.
4 O.S.No.3356/2010
14) The Chief Engineer
BBMP, N.R.Square
Bangalore-02.
15) The Assistant Executive Engineer
BBMP, Banashankari 1st Stage
Bangalore-50.
16) BESCOM
Banashankari 1st Stage
Bangalore-50.
(By Sri N. Kumar, Adv. For LRs. of
D.1(a) to 1(c) & D3 to 10; Sri B.R.
Dwarakanath, Adv. D.2 and Sri H.
Devendra, Adv. For D.11 to 15)
Date of institution of the suit 26.04.2010
Nature of the suit For declaration and
mandatory injunction
Date of the commencement 28.10.2013
of recording of evidence
Date on which the judgment 20.01.2022
Pronounced
Total duration Years Months Days
11 08 24
JUDGMENT
This suit is filed by the plaintiff through his GPA Holder against the defendants for the relief of declaration with respect to to their alleged encroachment upon the schedule properties and for mandatory injunction directing them to demolish the unauthorized construction put up on 5 O.S.No.3356/2010 'A' schedule property and to remove the transformer put up on 'C' schedule property.
2. The brief facts leading to the plaintiff's case are summarized as under:-
That the subject matter of the litigation is detailed in plaint schedule 'A' to 'C'. 'A' schedule property is said to be part of property No.33/3/1 measuring 550 sq.fts, schedule 'B' is said to be part of the same property measuring 500 sq.ft and schedule 'C' is also an immoveable property being part of the same number measuring 70 sq.ft all situate in Ashok Nagar, Banashankari I Stage, Bengaluru. The plaintiff is said to be the son of one V.L. Vasudeva and grand-son of Sri V. Lakshmipathy who was the son of Sri. Venkatasubbaiah. It is stated that said Venkatasubbaiah had 6 sons by name the grand-father of plaintiff V. Lakshmipathy, V. Venkatesh, V. Krishnaiah, V. Ramaiah, V. Sathyanarayana and V. Vasudeev. It is further stated that the family of Venkatasubbaiah owned 4 items of the immoveable properties mentioned in the partition deed dated 07.12.1963 consisting of lands and buildings which were partitioned under the said deed amongst Venkatasubbaiah 6 O.S.No.3356/2010 and his family members. It has been further stated that property described in schedule-III was allotted to the share of the grand-father of plaintiff - V. Lakshmipathy which are identified as being within ea, eb, ec, ed, eg, eh & ei together with building known as 'a' in schedule-III and another property identified as 'B' in schedule-III were also allotted to him. The plaintiff has further stated that V. Lakshmipathy had 3 sons i.e., the father of the plaintiff V.L. Vasudev, V.L. Sheshadri and V.L. Balasubramanya. It is further stated that the property bearing No.32/3/1 belonged to the joint family of V. Lakshmipathy and his 3 sons and the property commonly known as 'Vajapeyam Gardens'. The plaintiff' father is said to be the youngest son of Lakshmipathy and the eldest is V.L. Sheshadri and the defendant No.1 is the other son. It has been further stated that under a registered partition deed dated 23.02.1977, the above said property and another property were partitioned amongst V. Lakshmipathy and his 3 sons.
As per schedule-I to the said partition deed about 443 sq. meters in the above said property said to have fallen to the share of Lakshmipathy, an area of 742 sq.mts fell to the share of V.L. Sheshadi, an area of 825 sq.mts fell to 7 O.S.No.3356/2010 the share of defendant No.1 including the ground floor of schedule-I, an area of 311 sq.mts fell to the share of plaintiff's father V.L. Vasudev which was a building as well and an area of 152 sq.mts was kept in common for common use of flat No.1 and flat No.4 which fell to the share of V. Lakshmipathy and the plaintiff's father V.L. Vasudev respectively. The plaintiff has further urged that Sri V. Lakshmipathy was allotted the 1st floor of the building on land (32/3/1-02) and the ground floor was allotted to the defendant No.1. It is stated that the land on which the building stood formed part of 443 sq.mts allotted to V. Lakshmipathy and a part of 825 sq.mts allotted to the defendant No.1 and this portion was said to be over lapped and therefore V. Lakshmipathy said to have parted with 2100 sq.fts out of the land on which the building existed in favour of the defendant No.1 by executing a release deed dated 10.10.2001 and the defendant No.1 said to have sold an extent of 226.39 sq.mts out of 825 sq.mts to his uncle V. Sathyanarayana in the year 1978 itself. Thus the defendant No.1's legitimate share is said to be 598.61 sq.mts. The plaintiff has further submitted that the consideration for making 8 O.S.No.3356/2010 the release deed dated 10.10.2001 by V. Lakshmipathy in favour of defendant No.1 was that defendant No.1 was required to construct on the 1st floor of the building of the plaintiff's father Vasudeva and payment of Rs.1,50,000/- to V. Lakshmipathy. It has been further urged that V. Lakshmipathy executed a WILL dated 17.10.1999 infavour of the plaintiff bequeathing the newly constructed building on the 1st floor over the existing house of the plaintiff's father- Vasudeva and his wife Smt.Shylaja and further the open land on the southern portion measuring north-south 78 feets and east-west 29 feets to 30 feets+25.03x14 feets and the northern portion as per the annexed plan to the WILL was demarcated with the boundaries. It is further stated that during the lifetime of V. Lakshmipathy a rectification deed dated 04.08.2000 was made to the partition deed dated 23.02.1977 and this rectification deed was made to clarify with regard to the northern portion of the land allotted to defendant No.1 served as ingress and egress to his land for which a supplementary plan was prepared which formed part of the original partition deed of 1977. The plaintiff has further stated that the extent of land of defendant No.1 after he sold 22.9.39 sq.mts out of 9 O.S.No.3356/2010 his share to his uncle V. Sathyanarayana was 598.61 sq.mts which include the area which was clarified in the rectification deed. It is further stated that an unauthorized declaration deed dated 18.12.2002 came to be executed by all the parties whereby defendant No.1 claimed that after selling out the above said extent to his uncle the area left to his share was 708 sq.mts as against the extent mentioned in the release deed of 2001 and his claim for the additional area does not affect the area bequeathed to the plaintiff by his grand-father since the claim of defendant No.1 for additional area was claimed to be within the boundaries of the area allotted to him under the partition deed of 1977. The plaintiff has further stated that V. Lakshmipathy passed away in the year 2003 and that defendant No.1 along with is elder brother V.L. Sheshadri applied for issuance of property cards in their names by suppressing the material facts and mis-representing to the authorities by giving wrong measurements and fraudulently obtained property cards in favour of V. Lakshmipathy and V.L. Vasudev though they had not made any application for a lesser area than what they owned together with dockyard sketch one relating to the 10 O.S.No.3356/2010 area owned by defendant No.1 and another relating to the area owned by V. Lakshmipathy and the plaintiff's father Vasudeva. It is further alleged that defendant No.1 had also applied to the then BBMP for sanction of building plan for construction of residential apartments on 12.11.2003 valid upto 11.11.2005 for construction of basement floor, ground and 3 upper floors. It is further alleged that in the said plan the site area is shown as 683.63 sq.mts=7391.06 sq.fts and the BBMP failed to satisfy itself that the applicant was really the owner of the land for which he sought permission for building construction in view of the registered release deed wherein the applicant has clearly stated that the land owned by him is 6400 sq.fts. It is further stated that defendant No.1 entered into a Joint Development Agreement with the developer by name Smt.Leela Iyengar who is defendant No.2 herein and while constructing the building defendant Nos.1 & 2 have utilized an area to an extent of about 550 sq.fts of area belonging to the plaintiff as a set back area on the south-west direction and at the higher levels the chejjas are protruded at each floor level and on the northern side about 500 sq.fts of the plaintiff's area is utilized as a ramp 11 O.S.No.3356/2010 and parking area and about 70 sq.fts of the land to install a transformer which is liable to be removed. It is alleged that the private enclosure attached to the apartment Nos.103 & 104 of defendant No.2, at the ground-floor level forms a portion of area of 550 sq.fts. The said apartments are said to be in the name of defendant No.2. It is further alleged that the husband of defendant No.2 A.S. Ramaswamy Iyengar is the President of Unregistered Association of Apartment Owners. It is further alleged that at the higher level, the apartment No.403 of defendant No.2 has extensions in the plaintiff's area and apartment No.203 has extension in the plaintiff's area at the 2 nd floor level. It is further stated that it is in the name of Smt.Vatsala Mohan, the Secretary of the above said Association of Apartment Owners the defendant No.3 and similarly apartment No.303 has extension at the 3 rd floor level which is owned by defendant No.4. It is alleged that neither the owner nor the developer has obtained the occupation certificate of the building from BBMP but the apartments are occupied and in view of the same several deviations in the sanctioned plan not been inspected by BBMP authorities. It is further alleged that defendant No.2 12 O.S.No.3356/2010 has managed to see that the BBMP authorities do not inspect the building with the connivance of her husband and defendant No.1. It is alleged that without requisite occupation certificate the electricity and drainage connections are obtained contrary to law. Thus the plaintiff alleged to have issued a legal notice dated 12.12.2009 to the defendants calling upon them to stop using the area of his property and defendant No.11 to 15 were called upon to inspect the residential apartment and to initiate action against the owner and developer for their contravention of building plan. It is alleged that the said legal notice was received by defendant Nos.1 to 3, 5, 6, 8 to 13, 15 & 16 whereas notices issued to others were received as intimation delivered and as not claimed. It is further alleged that the defendant No.1 alone has sent reply through his counsel by taking stand that V. Lakshmipathy had no right to execute WILL in favour of the plaintiff's father and his wife in view of the partition deed of 1977 and that he is not aware of the said WILL executed in favour of the plaintiff and that by virtue of the deed of declaration he got an excess area of about 112 sq.mts in addition to area given under the partition deed 13 O.S.No.3356/2010 and that after selling a portion of the property in favour of his uncle Sathyanarayana, an area of 712 sq.mts was left with him. It is further contended that the documents produced by the plaintiff establish about the excess amount repaid by defendant No.1 to the BBMP and the encroachment made by him along with defendant No.2 and therefore the plaintiff has to come up with the present suit seeking declaration that the defendant No.1 to 4 have encroached upon an area of 550 sq.ft of his land as detailed in schedule 'A' of the plaint, declaration that defendant No.1 to 10 have encroached upon an area of 500 sq.fts of his land as mentioned in schedule 'B', declaration that defendant No.1 to 10 have encroached upon an area of 70 sq.ft of his land as described in schedule 'C' of the plaint, directing the defendants to deliver up 'A' to 'C' schedule properties and mandatory injunction against defendant No.11 to 15 to demolish the unauthorized construction put up on 'A' schedule property, mandatory injunction against the defendants to remove the transformer installed in schedule 'C' property.
3. In pursuance of service of suit summons, the defendant Nos.1 & 3 to 10 appeared through their 14 O.S.No.3356/2010 counsel, defendant No.2 also appeared through a different counsel whereas defendant No.11 to 15 appeared through another counsel. The defendant Nos.1 & 2 filed their written statements. The defendant Nos.3 to 10 filed memo adopting the written statement filed by defendant No.1 whereas defendant Nos.11 to 15 did not file their written statement. The defendant Nos.1 & 2 in their written statements have denied the entire claim of the plaintiff though the relationship between the parties has not been denied by them. The defendant No.1 has questioned the maintainability of the suit at the first instance for improper valuation of the suit reliefs and the deficit payment of court fee by contending that the court fee ought to have been paid on the market value of the suit schedule property even as per the Government guidelines. It is contended that the plaintiff has specifically pleaded that 'A' to 'C' schedule properties together constitute 1120 sq.fts and if the Govt guideline value is taken into consideration it will work out to Rs.25,76,000/- and therefore the total court fee payable on the said amount would be Rs.1,12,185/- for declaration and possession and therefore on this count only the defendant No.2 has 15 O.S.No.3356/2010 sought for dismissal of the suit. The defendant Nos.1 & 2 have also sought for dismissal of the suit on the ground that it is hopelessly barred by limitation. It is further contended by defendant No.1 in his written statement that the age of the plaintiff as on the date of the suit was 23 years which she has deliberately not disclosed and though he is hale and healthy and has no impediment to file the present suit, but he has deliberately filed the suit through the GPA holder and has not filed the suit within 3 years of his attaining majority. Though the defendant No.1 has not specifically denied the fact of earlier allocation of the area to the various sharers and also relies on the release deed dated 10.10.2001, but it is alleged that the plaintiff with a malafide intention has mis-interpreted the alleged WILL dated 17.10.1999 stated to have been executed by the father of this defendant and after obtaining the copy of the said WILL it is learnt that the plaintiff while describing the property allotted to him under the WILL of 1999 has given the boundaries of the property correctly but has given incorrect measurement and therefore the schedule of the boundaries stated in the WILL would prevail over the measurement. The defendant No.1 has further 16 O.S.No.3356/2010 contended that V.Lakshmipathy had absolutely no right to separate a portion of the sketch signed by all the parties and make use of the same for the purpose of describing the property allotted in favour of the plaintiff when there is a registered partition deed of 1977 under which there is also a sketch annexed to it and in view of the same all the parties to the partition deed have subscribed their signatures to both the deed as well as to the plan annexed to the said deed. It is further contended that V. Lakshmipathy had no right to cut off of the portion of registered plan annexed to the partition deed with a view to describe the portion of the property allotted to the plaintiff in an incorrect manner by giving wrong measurements and as per the understanding of the parties under the said partition deed it is clear that the property allotted in favour of Lakshmipathy was on a higher plane while the property allotted in favour of defendant No.1 was 10 feets below the property allotted to Lakshmipathy and thus the properties allotted to both these parties are not contiguous in the sense that the property of defendant No.1 is on a lower level upto a measurement of 10 feets and this topography of the property has been clearly 17 O.S.No.3356/2010 stated in the WILL of 1999. The defendant No.1 has further categorically denied that in view of this topography there is no chance of this defendant ever encroaching on the property of late Lakshmipathy as alleged in the plaint and therefore according to him the description of letters 'D' 'B' in the plan produced along with the WILL is incorrect. It is further contended that even the description of the property shown by letters GHIJE'EDB'B is absolutely meaningless and a glaring mistake and if it is strictly construed in that sense the entire bequest also takes in its fold the plaintiff's father's property also. It is further contended that the point E-shown in the sketch annexed to the WILL is a new creation which does not exist in the partition deed or the plan annexed to it. The defendant No.1 has however admitted the fact of his father during his lifetime executing rectification deed dated 04.08.2000 to the partition deed of 1977 and making clear mention to clarify the northern portion of land allotted to defendant No.1 for which supplementary plan was prepared. It is further contended that after partition deed of 1977 and the allotment of the shares amongst the sharers, the defendant No.1 with a view to develop his property 18 O.S.No.3356/2010 demolished the property allotted to him with the consent of his father Lakshmipathy as he was the owner of the first floor of the property which is clearly stated in the registered release deed of 2001 and V. Lakshmipathy accordingly had received consideration amount of Rs.1,50,000/- and 2100 sq. fts area to be built by defendant No.1 above the property of the plaintiff's father Vasudeva. However it is alleged by defendant No.1 that his father Lakshmipathy without obtaining a registered conveyance deed for roof rights, has illegally bequeathed the property in favour of his son Vasudeva and his wife Shylaja and therefore the plaintiff's claim on the strength of the bequest alleged to have been made in the unregistered WILL dated 17.10.1999 does not convey any right in his favour since his grand-father Lakshmipathy was not the owner of the first floor since he did not own the roof rights. It is further contended by defendant No.1 that after demolition of portion of the property allotted to him he was able to get an additional area as mentioned in the declaration and at the time of partition deed of 1977 the topography of the property was in different levels and therefore the measurements were also stated 19 O.S.No.3356/2010 approximately and thus whatever properties allotted to the parties falling within their boundaries shall be held by such parties and the said arrangement was confirmed in the declaration deed dated 18.12.2000. It is further contended by defendant No.1 that the alleged encroachment complained of by the plaintiff is on the basis of a private survey got appointed by him which is not binding on any of the defendants as the plaintiff has manipulated the survey sketch to show the alleged encroachment and to get the defective sketch prepared by the testator. He has also contended that the plaintiff has no right to question the measurements shown in the property cards obtained by defendant No.1 and his brothers and their father Lakshmipathy. The fact of this defendant obtaining plan sanctioned by BBMP and his constructing residential apartments through defendant No.2 who is a builder have been admitted by him. However he has categorically denied the allegations that he has utilized 550 sq.fts of area belonging to the plaintiff as a set back area on the south western direction as alleged. He has further denied that the chejja constructed are precluding on each floor level as alleged. He has 20 O.S.No.3356/2010 further denied the allegation that on the northern side above 500 sq.fts of property belongs to the plaintiff and the same is utilized by defendant No.1 as a ramp and parking area and about 70 sq.fts of land utilized to install the transformer etc., as alleged. It is contended by defendant No.1 that the said installation of transformer is by the BESCOM and after necessary verification the same has been installed. He has categorically denied that he has not constructed the building as per the sanctioned plan etc., as alleged. The issuance of legal notice by the plaintiff is admitted by defendant No.1 and he has contended that he has already issued suitable reply to it. For these reasons defendant No.1 has sought for dismissal of suit.
4. Defendant No.2 who is said to be a builder, has also filed her written statement by reiterating the contentions raised by defendant No.1 in his written statement and in addition to it she has also contended that she is unaware of the family settlement, the earlier declaration, release deed, execution of WILL, etc., in the family of the plaintiff and defendant No.1. However no specific denial of these facts are found in her written 21 O.S.No.3356/2010 statement. She has also questioned the correctness of the measurements of the property shown in the WILL of 1999 as claimed in the plaint. This defendant has further admitted the fact that defendant No.1 had entered into a JDA with this defendant for construction of residential apartment. However she has also denied the allegation that about 550 sq.fts area belonging to the plaintiff has been used as set back, about 500 sq.fts used as a ramp and parking area and 70 sq.fts is used for installation of transformer etc., as alleged in the plaint. This defendant has further categorically denied that there has been any such encroachment committed on the portion of the plaintiff's property as claimed by him. It is the counter allegation of defendant No.2 that the plaintiff has been ill- advised by the daughter-in-law of defendant No.2 on certain aspects due to certain difference of opinion between her and her husband and that she has colluded with the plaintiff and his family members, stolen several vital documents from the custody of this defendant and handed over the same to the plaintiff and his advocate. It is further alleged that the daughter-in-law of defendant No.2 being an advocate, has not only committed theft, 22 O.S.No.3356/2010 criminal breach of trust and forgery but also committed professional misconduct. It is contended by defendant No.2 that in an alleged suit for partition on vexatious and on imaginary grounds the plaintiff cannot question any division from the sanctioned building plan and no such questions could be raised before this court. This defendant has also contended that she has suitably replied to the legal notice issued by the plaintiff. For these reasons defendant No.2 has also sought for dismissal of the suit.
5. On the rival contentions of the parties the following issues have been framed :-
1) Whether the plaintiff proves that the WILL deed dated 17.10.1999 executed by V. Lakshmipathy is valid and legal?
2) Whether the plaintiff proves that he is the owner of suit schedule 'A', 'B' and 'C' properties?
3) Whether the plaintiff proves that the defendants No.1 to 4 have encroached upon an area of 550 sq.feet shown in schedule 'A' property?
4) Whether the plaintiff proves that the defendant Nos.1 to 10 have encroached upon an area of 500 sq.feet shown in schedule 'B' property?23 O.S.No.3356/2010
5) Whether the plaintiff proves that the defendant No.1 to 10 has encroached upon an area of 70 sq.feet shown in schedule 'C' property?
6) Whether the plaintiff proves that the
defendants are liable to demolish
unauthorised construction and
transformer existing in schedule 'A' and 'C' property?
7) Whether the suit of the plaintiff is barred by limitation?
8) Whether the plaintiff is entitled for reliefs claimed?
9) What order or decree?
6. To substantiate the case of the plaintiff, his sister has deposed before the court as PW1 as his GPA holder and she has relied on 27 documents marked from Ex.P1 to P27. Per contra, the defendant No.1 and GPA holder of defendant No.2 have deposed before the court as D.Ws.1 & 2 respectively. The defendants are also relied on as many as 21 documents marked from Ex.D.1 to D.21.
7. Both counsels submitted their respective written arguments in the case.
24 O.S.No.3356/2010
8. On perusal of the written arguments and on appreciation of the evidence on record, my findings on the above issues are as under:
Issue No.1 : In the negative Issue No.2 : In the negative Issue No.3 : In the negative Issue No.4 : In the negative Issue No.5 : In the negative Issue No.6 : In the negative Issue No.7 : In the affirmative Issue No.8 : In the negative Issue No.9 : As per final order, for the following:
-: REASONS :-
9. Issue No.1:- The plaintiff who claims to be the grand-son of one late V. Lakshmipathy has stated that under a registered partition deed dated 23.02.1977, the suit schedule property along with another property were partitioned amongst his grand-father V. Lakshmipathy and his three sons i.e., V.L. Sheshadri, the defendant No.1 and the plaintiff's father V.L. Vasudeva under which 443 sq. meters of land in the suit schedule property said to have fallen to the share of his grand-father Lakshmipathy, 742 25 O.S.No.3356/2010 sq.meters of land was allotted to V.L. Sheshadri, 825 sq.meters of land was allotted to the share of the defendant No.1 and 311 sq.meters of land fell to the share of plaintiff's father and the said allotment was clearly shown in the sketch annexed to the said partition deed. It is his further case that an area of 152 sq.meters as shown in schedule-V was kept for common usage of flat Nos.1 & 4 which fell to the share of his grand-father Lakshmipathy and his father Vasudeva.
10. According to the plaintiff's case his grand- father was allotted the 1st floor of the building on the land and the ground floor was allotted to the defendant No.1 whereas the land on which the building stood formed part of 443 sq. meters of land allotted to Lakshmipathy and a part of 825 sq. meters allotted to the share of the defendant No.1 and as this portion overlapped, his grand- father parted with 2100 sq. feets out of the land on which the building existed, in favour of defendant No.1 under a release deed dated 10.10.2001. It is further stated that subsequently defendant No.1 sold an extent of 226.30 sq. meters out of 825 sq. meters allotted to his share, to his uncle V. Sathyanarayana in the year 1978 and therefore 26 O.S.No.3356/2010 the legitimate share which remained with defendant No.1 was 598.61 sq. meters.
11. As regards the execution of the earlier partition deed of 1977, the allotment of the lands and their extent as shown in the said deed to all the sharers and the subsequent execution of the release deed by the grand- father of the plaintiff in favour of defendant No.1, these facts have not been denied by the contesting defendants. However defendant No.1 has specifically denied the claim of the plaintiff that after his selling 226.39 sq. meters of his portion to his uncle, the land remained with him was only 598.61 sq.meters as alleged in the plaint.
12. It is the further claim of the plaintiff that on 17.10.1999 his grand-father V. Lakshmipathy executed an unregistered WILL in favour of his son Vasudeva and daughter-in-law Shylaja who are the parents of the plaintiff thereby bequeathing the newly constructed building on the first floor over the existing house of the plaintiff's father and further the open land on the southern portion measuring north-south 78' and east-west 29' to 30'+25'3"x14 feet and the northern portion as per the plan annexed to the said WILL demarcated with the 27 O.S.No.3356/2010 boundaries owned by V. Lakshmipathy was bequeathed in favour of the plaintiff. This bequest claimed by the plaintiff under the said WILL of 1999 and the description of the property and the measurements shown therein are seriously disputed by defendant No.1. It is the specific defence of defendant No.1 that when already the parties were allotted their respective shares under the earlier partition deed of 1977 then their father V. Lakshmipathy had no legal right to bequeath the property as shown in the said disputed WILL in favour of either the plaintiff or his parents by showing different measurements. In view of this specific denial by the defendant Nos.1 and 2 with regard to the validity and correctness of this WILL heavy burden is cast on the plaintiff to prove this WILL under the present issue.
13. As discussed supra, to substantiate the plaintiff's claim, his sister has deposed before the court as P.W.1 who also claims to be one of the beneficiaries under the said WILL. She has relied on 27 documents in support of plaintiff's case. As regards Ex.P.1, it is the GPA said to have been executed in favour of P.W.1 by the plaintiff. Ex.P.2 is the certified copy of the earlier partition deed 28 O.S.No.3356/2010 dated 17.12.1963 under which the grand-father and his brother earlier got partitioned their family properties. Ex.P.3 is the certified copy of the partition deed dated 23.02.1977 under which the grand-father of the plaintiff V. Lakshmipathy and his 3 sons got partitioned the properties. As regards Ex.P.4, it is the certified copy of the rectification deed dated 04.08.2000 with plan. Ex.P.5 is the certified copy of the release deed dated 10.10.2001. As regards Ex.P.6, it is the certified copy of the sanctioned plan with regard to construction put up by the defendants. Ex.P.7 is the letter issued by BBMP. As regards Ex.P.8, it is the copy of legal notice issued on behalf of plaintiff to the defendants including the BBMP authorities. Ex.P.9 & P.10 are the postal AD slips and postal covers.
14. P.W.1 has also produced the reply issued by the defendant No.1 to Ex.P.8 legal notice as per Ex.P.11. Ex.P.12 & P.13 are the khatha certificate and khatha extract respectively standing in the name of plaintiff. Ex.P.14 is the disputed WILL dated 17.10.1999. As regards Ex.P.15, it is the representation issued by P.W.1 to the Town Planning Authority complaining about the offending construction put up by the defendant Nos.1 & 2 29 O.S.No.3356/2010 over the suit schedule property. Ex.P.16 is one such representation issued to the BBMP. As regards Ex.P.17, it is the copy of letter issued by BBMP. Ex.P.18 is the copy of indemnity bond dated 13.02.2002 issued by BBMP with regard to construction put up by the defendants.
15. As regards Ex.P.19, it is another letter issued by BBMP to the defendant No.1. Ex.P.20 it is the letter submitted by the defendant No.1 to the BBMP authorities in connection with his construction. Ex.P.21 is the bond executed by defendant No.1 in favour of BBMP. As regards Ex.P.22, it is the copy of letter and Ex.P.23 is the bond executed by defendant No.1. Ex.P.24 is the copy of indemnity bond executed by him in favour of BBMP. As regards Ex.P.25, it is the copy of calculation submitted by the BBMP authorities. P.W.1 has also produced 4 photographs in connection with his construction work which are together marked as Ex.P.26. As regards Ex.P.27, it is the copy of declaration submitted by all the parties to the partition deed of 1977.
16. As against the above oral and documentary evidence placed before the court by P.W.1, the defendant No.1 and GPA holder of defendant No.2 have deposed 30 O.S.No.3356/2010 before the court as D.W.1 & 2 respectively. D.W.1 got marked 3 documents from Ex.D.1 to D.3 which are the declaration by the testator as per Ex.D.1, Ex.D.2 is the sketch enclosed to partition deed of 1977 and Ex.D.3 is the sketch which was appended to the rectification deed. Further D.W.2 also got marked documents from Ex.D.4 to D.21. As regards Ex.D.4, it is the GPA executed by defendant No.3 in favour of D.W.2. As regards Ex.D.5, it is the JDA entered into between defendant No.1 & 2. Ex.D.6 is the letter dated 05.04.2002 submitted by D.W.1 to BBMP authority. The same calculation sheet produced by P.W.1 has been once again produced by D.W.1 at Ex.D.7.
17. DW2 has also produced copy of letter dated 03.04.009 submitted by P.W.1 to the BBMP authorities which is marked at Ex.D.8. Ex.D.9 is the same declaration which is also produced by P.W.1. As regards Ex.D.10, it is the order passed by the Commissioner of State Information Authority. Ex.D.11 is the copy of letter issued by the BBMP. Ex.D.12 is the reply issued to Ex.D.11. As regards Ex.D.13, it is the endorsement issued by the Police to the application of defendant No.2. As regards Ex.D.14, it is the copy of complaint lodged by P.W.1 31 O.S.No.3356/2010 against the construction undertaken by the defendant No.1 & 2 on the suit schedule property. As regards Ex.D.15, it is the complaint lodged by one Ashok P.Y. to the Police. Ex.D.16 is the endorsement issued by the Police in response to Ex.D.15- complaint. As regards Ex.D.17, it is the letter issued by the father of D.W.2 to the BBMP authority.
18. Further, Ex.D.18 is the release deed which is also relied on by the plaintiff. As regards Ex.D.19, it is the sketch and Ex.D.20 & D.21 are the sanctioned and modified sanctioned plan pertaining to the offending construction put up by D.Ws.1 & 2 on the suit schedule properties. In the backdrop of this oral and documentary evidence placed before the court by both the parties now it is to be seen whether the plaintiff could prove the disputed Will and his alleged legal right over the suit schedule properties by virtue of the said WILL.
19. Since the plaintiff and PW1 have claimed their alleged rights over the suit properties on the strength of the disputed Will Ex.P14 and as the same is seriously disputed by D-1 and 2, the burden is on them to prove Ex.P14 and its genuineness in accordance with law. As 32 O.S.No.3356/2010 discussed supra, except the interested version of PW1 in this regard, no evidence of any other independent witnesses, much less that of any attesting witnesses has been made available before the court as required u/s 68 of the Evidence Act when admittedly Ex.P14 is an unregistered document.
20. As stated above, defendant No.1 & 2 have categorically contended that since Ex.P.3 registered partition deed of 1977, Ex.P.2 the registered plan annexed to the said partition deed, Ex.D.18 release deed, Ex.P4 registered rectification deed and Ex.D.9 the declaration are all the material documents which are admitted and have been duly acted upon by all the parties concerned including the father of D.W.1 late Lakshmipathy and his 3 sons, now none of the parties is permitted to retract from these documents or from their contents and be permitted to give a different interpretation by virtue of any other documents.
21. D.W.1 has specifically urged that when already the measurements as well as the boundaries of the respective properties allotted to the sharers have been reflected in the earlier deed Ex.P.3 along with clear 33 O.S.No.3356/2010 demarcation of these properties, late lakshmipathy had no legal right to deviate from those measurements or the schedule of the properties and make any modification by way of execution the disputed Ex.P.14 WILL either in favour of the parents of the plaintiff or in his favour. In view of these specific contentions raised by D.W.1, now it is to be seen whether Ex.P.14 which is relied on by the plaintiff and P.W.1 is in conformity with all those earlier admitted documents as stated supra.
22. As rightly contended by D.W.1, since there was some inadvertence while describing the property and the extent of the property allotted to his share in Ex.P.3, late Lakshmipathy immediately got it rectified by executing a subsequent rectification deed as per Ex.P.4 in the year 2000 and even this document has not been disputed by any of the parties much less by the present plaintiff or P.W.1 or their parents. Under such circumstances certainly as rightly contended by these defendants, any modification which is found in Ex.P.14 WILL without the consent and notice of the other sharers would be contrary to the earlier deeds which are admitted and which have already been acted upon by the parties.
34 O.S.No.3356/2010
23. As per the claim of P.W.1 and the plaintiff in this case now according to them by virtue of Ex.P.14 WILL their parents were allotted the residential house and open land on the southern portion measuring 78 feets and 29' to 30'+25'3"x14" as demarcated by letters GHIJE'EDB'B and further bequeathed the northern portion which is owned by late Lakshmipathy shown by letter D'B' is bequeathed in favour of the plaintiff. How far this bequest made either in favour of his parents or in his favour could be proved by the plaintiff or P.W.1, is the material aspect which invites consideration. As discussed supra, except the self-serving and solitary statement of P.W.1 in this regard, we have no evidence of any attesting witnesses to prove the alleged bequest made by their grand-father in favour of P.W.1 or the plaintiff.
24. However the learned counsel for plaintiff in his written arguments has urged with some vehemence that D.W.1 has not disputed Ex.P.14 but in fact he confirms the handwriting of his father in his cross-examination but later-on disputes the capital letters mentioned in Ex.P.14 nor he has made any efforts to get referred Ex.P.14 for forensic examination and therefore it is to be held that this 35 O.S.No.3356/2010 WILL stands proved by the plaintiff. This argument which is sought to be canvassed before the court is totally misconceived for the simple reason that a WILL, more particularly an unregistered WILL is required to be proved in accordance with law and as contemplated under the provisions of Evidence Act independent of the defence of the defendants and irrespective of their admission. Merely because D.W.1 has admitted the handwriting of his father as shown in Ex.P.14, that itself will not dispense with the proof of or the authenticity of this WILL unless and until the plaintiff proves such WILL as per law.
25. It is needless to discuss that in order to prove an unregistered or even a registered WILL which is disputed in the case, at least one attesting witness is required to be examined before the court. In this backdrop it would be relevant to refer the oral evidence of P.W.1 who is none other than the own sister and one of the beneficiaries of Ex.P.14- WILL. In her cross-examination she has clearly admitted that her grand-father did not get Ex.P.14 registered. However she has pleaded ignorance to say whether he had no independent right to execute the WILL with respect to the ancestral property and that she 36 O.S.No.3356/2010 has no personal knowledge regarding the execution of Ex.P.14 since she was not present at that time. This material admission of P.W.1 is found in her cross- examination dated 20.09.2014 on page-33 in para-2.
26. It is further pertinent to note that even in the first para of the said cross-examination PW1 has categorically stated that her grand-father drafted the WILL in his handwriting and one Subramanyam and Vishveswaraiah have attested the said WILL. When she has assertively stated that these two persons have attested Ex.P.14, nothing would have prevented her from examining at least one of them before the court who would have stated that deceased Lakshmipathy had got drafted or written Ex.P.14 WILL in their presence with full knowledge and while he was in a sound mental condition. It is relevant to refer that piece of her statement which runs thus:
"My grand-father drafted the
WILL in his hand writing. One
Subramanyam and Vishveswaraiah
have attested the WILL".
27. Even in her further cross-examination on page- 33 in para-2 P.W.1 has clearly stated that she does not 37 O.S.No.3356/2010 know whether the above witnesses were personally present at the time of execution of WILL. This material piece of her statement runs thus:
"I do not know whether the
witnesses were personally present at
the time of execution. Witness
Subramanyam is alive and another
witness is no more".
The above categorical statement of P.W.1 clearly casts cloud about the alleged execution of Ex.P.14 by her grand-father, because as stated above when P.W.1 has clearly stated that one of the attesting witnesses is still alive, certainly he would have been the material and key witness to prove the alleged execution of Ex.P.14 by late Lakshmipathy. No such prudent efforts have been made by the plaintiff or P.W.1 to summon and examine such material witness, from which an adverse inference will have to be drawn against the claim of the plaintiff and P.W.1.
28. Moreover though it is vehemently urged that D.W.1 has admitted the handwriting of his father on Ex.P.14, but nowhere he has admitted that he admits the so-called signature found on Ex.P.14 as that of his father. 38 O.S.No.3356/2010 Even otherwise neither the said signature of the testator is proved nor it is got marked by the examination of any attesting witnesses nor the said handwriting is proved in accordance with law. Therefore as rightly contended by defendant No.1 & 2, this Ex.P.14 WILL is certainly not reposing any confidence in the mind of this court so as to accept its authenticity. The Hon'ble High Court as well as the Apex Court in a catena of decisions have well settled the position of law with regard to proof of a WILL. One such decision is reported in Smt. Giddamma & another v/s Smt. Venkatamma, (dead by LRs) & others in ILR 2009 KAR 992 wherein this position of law has been well settled as under:
Indian Evidence Act, Secs. 67 to 69--
Section 68--Proof of execution of the document--Mandatory requirement--Sec.69-- proof of a document where no attesting
witness found--Held, Sec. 68 of the Act lays down the mode of proof of a document. The mandatory requirement is that, at least one of the attesting witnesses should be examined. Sec. 69 provides for proof of a document where no attesting witness is found. The provision of Sec.69 contemplates that, the handwriting of at least one attesting witness 39 O.S.No.3356/2010 and the signature of the person executing the document is required to be identified and proved through the witnesses. The proof of handwriting and/or the signature of a scribe is not the stipulation u/s 69 of the Act--On facts, held, the evidence of DW3, merely identifying the handwriting and also the signature of his father, the scribe of the Will Ex.D1, is of no legal consequence and does not meet the stipulation u/s 69.
29. In view of the above settled position of law now it is no longer open either to the plaintiff or to P.W.1 to still rely on Ex.P.14 to claim that as per this WILL they have acquired any legal right over the suit schedule properties. It would be further relevant to note that as rightly pointed out by the defendants, at an undisputed point of time Ex.P.3 to P.6 documents have come into existence with the consent of all the parties including the father of D.W.1 late Lakshmipathy. As stated above, they have also duly accepted the allotment of the properties as per these documents along with boundaries and measurements shown therein. Even P.W.1 has clearly admitted that the sketch map annexed to Ex.P.3 partition deed and the rectification deed are one and the same and all the parties to the partition have signed the said 40 O.S.No.3356/2010 partition deed. Even she has admitted the fact that Ex.P.4 rectification deed was executed by her grand-father by rectifying the property allotted to D.W.1 as shown in red lines appearing in the sketch map.
30. It is further significant to note that even PW1 has clearly admitted that in the map annexed to the disputed WILL Ex.P.14 the letter shown as 'E' is not appearing either in the earlier partition deed or in the rectification deeds, sketch maps. Under such circumstances the burden is on her to prove as to how for the first time her grand-father shown this portion as letter E' in Ex.P.14 which is in total deviation from the admitted documents Ex.P.3 & P.4. On this count also Ex.P.14 is to be considered as a totally unreliable document.
31. Even P.W.1 has not denied the suggestion of the defence counsel that out of the 4 signatories of the map annexed to the partition deed, one cannot introduce a new line as shown by letter 'E' in Ex.P.14 on his share of the property and in order to introduce such change there will be rectification deed. This material piece of her statement is also relevant to be referred which is found in 41 O.S.No.3356/2010 her cross-examination dated 05.03.2014 on page-29 which reads thus:-
"I do not know whether out of 4 signatories in the map, one cannot introduce a new line as 'E' on his share of the property. I do not know whether there should be rectification deed to introduce new line 'E'.................. It is true that the boundaries as shown in the map which still in existence".
32. The above statement of P.W.1 would once again probablise the defence of D.W.1 that Ex.P.14 introduces a totally new fact which is not found in the partition deed or the maps annexed to the partition deed which were accepted by all the parties. Under such circumstances as rightly contended by these defendants even if late Lakshmipathy had any such intention to bequeath the extent of the suit properties as claimed by the plaintiff under Ex.P.14 certainly he should have notified all the other sharers in that regard or would have executed any such rectification deed to that effect. However no such rectification deed is forthcoming in order to accept the genuineness of Ex.P.14. Under such 42 O.S.No.3356/2010 circumstances the burden is heavy on the plaintiff or P.W.1 to show as to how Ex.P.14 was executed by their grand-father with the consent or with the notice of all the other sharers. In the absence of any such cogent evidence, the defence raised by the defendant No.1 & 2 in this regard will have to be accepted.
33. Even P.W.1 has reiterated the in her further cross-examination on page-34 in para-2 that 'E' point added in the WILL is not a point in the partition deed or rectification deed. Though in her further statement she has stated that for the purpose of some ratification the rectification deed is executed, but this Ex.P.4 rectification deed has nothing to do with Ex.P.14 WILL. Therefore considering all these facts and circumstances of the case and in view of the above statements of P.W.1 and more importantly in the absence of evidence of any attesting witnesses to Ex.P.14 WILL which is a mandatory requirement under Sec.68 of the Evidence Act, it cannot be relied on for any purpose nor it would give any legal right in favour of either P.W.1 or the plaintiff with respect to suit schedule properties. In other words it could safely be held that the plaintiff has miserably failed to prove 43 O.S.No.3356/2010 Ex.P.14 WILL in order to base his claim over the suit schedule property by virtue of this WILL. Hence this issue will have to be answered against the plaintiff in the negative.
34. Issue No.2:- As discussed supra, the entire claim of the plaintiff with respect to 'A' to 'C' schedule properties is based on the disputed WILL Ex.P.14 which is now proved to be a totally unreliable document which is not proved by him in accordance with law. Under such circumstances how could he claim his ownership over 'A' to 'C' schedule properties on the strength of such unreliable WILL, is the material aspect which requires consideration. According to the claim of the plaintiff, his grand-father late Lakshmipathy by executing Ex.P.5 release deed dated 10.10.2001 parted with 2100 sq. fts area out of land on which the building existed in favour of D.W.1 and later D.W.1 sold an extent of 226.39 sq.mtrs out of 825 sq.mts allotted to his share in favour of his uncle Sathyanarayana in the year 1978 itself and thus the legitimate share of D.W.1 after selling the said extent of land to his uncle, remained only to the extent of 598.61 sq.meters.
44 O.S.No.3356/2010
35. It is further alleged that now this claim of DW1 for the additional area in excess of 6400 sq.fts does not affect the area bequeathed to the plaintiff under Ex.P.14. Thus according to the plaintiff now by claiming such excess area, defendant No.1 to 4 have encroached upon an area of 550 sq.fts as shown in plaint 'A' schedule, defendant No.1 to 10 have encroached 500 sq.fts area as shown in plaint 'B' schedule and defendant No.1 to 10 have further encroached an extent of 70 sq.fts as shown in plaint 'C' schedule property which exclusively belongs to him. In view of the findings rendered on issue No.1 now it is proved that the plaintiff can not assert any rights by virtue of Ex.P.14 WILL which is not proved in accordance with law.
36. It is pertinent to note that even if we peruse Ex.P.14 WILL, the testator is shown to have allegedly bequeathed various portions of the properties allotted to his share in the names of the parents of P.W.1 and in favour of his other grand-children and on page-2 he is shown to have bequeathed an open land on the southern portion measuring 78'x29' to 30'+25'3"x14" and the northern portion owned by him in favour of the plaintiff. 45 O.S.No.3356/2010 Now the burden is on the plaintiff and P.W.1 to show as to how the said measurement is arrived at and shown even in the annexed plan of this WILL in deviation of the earlier shares allotted to the other sharers and no satisfactory explanation has been offered in this regard. Under such circumstances it has not been substantiated as to how the extent shown in plaint 'A' to 'C' schedule has been arrived at based on this alleged bequest made under Ex.P.14. However to substantiate this aspect again the plaintiff has relied on the so-called private survey got conducted by them to which the other sharers were not parties. Even this fact has been clearly admitted by P.W.1 in her cross- examination.
37. In the cross-examination of P.W.1 dated 10.04.2014 on page-30 in the last para she has stated that in the year 2009 the plaintiff got conducted survey through private survey agency. From the evidence on record it is revealed that based on the said private survey the plaintiff has been claiming his right over the plaint 'A' to 'C' schedule properties even though this fact has been denied by P.W.1 in her cross-examination. To substantiate this aspect even no evidence of the so-called surveyor has 46 O.S.No.3356/2010 been led before the court which has once again become fatal to their claim. Therefore it could squarely be held that the plaintiff or P.W.1 have absolutely no basis to prove that the plaintiff has acquired right over the extent of the properties shown in plaint 'A' to 'C' schedule so as to claim his absolute ownership over the said extent of properties.
38. It is further significant to note that P.W.1 has also pleaded her inability to say as to when they had applied for the khatha extract or khatha certificate to get entered their names on the basis of Ex.P.14 WILL. However the khatha certificate and khatha extract which are produced at Ex.P.12 and P.13 respectively show that they have obtained these documents on 23.01.2009 which are standing in the name of the plaintiff. Even to substantiate the fact that the plaintiff has been holding the extent of property as 3958 sq.fts shown in Ex.P.13, no supporting documents are placed before the court.
39. Had really the plaintiff acquired any such right over 'A' to 'C' schedule by virtue of Ex.P.14 which allegedly came into existence in the year 1999, nothing would have prevented him or P.W1 to get changed their 47 O.S.No.3356/2010 khathas immediately thereafter or at least after they attaining majority. According to P.W.1 the plaintiff was 16 years old in the year 2003. Thus after attaining majority in the year 2005 at least he ought to have made any such efforts to get changed the khatha into his name to the extent of the properties shown in the plaint schedules. All these aspects once again clearly nullify his claim that he has become the owner of the plaint 'A' to 'C' schedule properties as claimed by him. In other words it could be said that he has no supporting materials to base his claim that he has become the owner of 'A' to 'C' schedule properties to the extent of properties shown in these schedules.
40. It is further relevant to note that as contended by D.W.1 and even according to the admission of P.W.1, till today the extent of the property mentioned in earlier partition deed and the subsequent rectification and release deeds have not been changed despite Ex.P.14 allegedly coming into existence in the year 1999. Under such circumstances in the absence of any such modifications or change in the measurement or description of the properties mentioned in these deeds, it is to be held that 48 O.S.No.3356/2010 whatever properties were allotted to the parties within those boundaries and measurements, the same were confirmed in the subsequent declaration deed dated 18.12.2002 and therefore even on this count there cannot be any modification in those measurements even with regard to properties allotted to the shares of the parents of the plaintiff nor there could be any bequest by late Lakshmipathy by virtue of Ex.P.14 WILL without there being any modification in the earlier partition deed or rectification deeds. On this count also the claim of ownership by the plaintiff over the suit schedule properties will have to fail. Consequently it cannot be said that he could prove his title over 'A' to 'C' schedule properties. Hence even this issue will have to be answered against him in the negative.
41. Issue No.3 to 6:- Since all these issues are interconnected, as they are framed with regard to alleged encroachment over 'A' to 'C' schedule by defendant No.1 to 10, they are tried together to avoid repetition of facts. As stated supra, it is the allegation of the plaintiff that defendant Nos.1 to 4 have encroached upon an area of 550 sq.fts shown in 'A' schedule, defendant No.1 to 10 49 O.S.No.3356/2010 have once again encroached upon an area of 500 sq.fts as shown in 'B' schedule property and again defendant No.1 to 10 have encroached upon 70 sq.fts area as shown in 'C' schedule property and therefore they are liable to demolish the unauthorized construction put up on these properties including the installation of transformer in plaint 'A' and 'C' schedule properties.
42. In view of the fact that the plaintiff has failed to prove the disputed WILL Ex.P.14 and his absolute ownership over plaint 'A' to 'C' schedule properties, it cannot be said that he could prove the alleged encroachment of these defendants over these properties as claimed. Even otherwise when there has been specific allegation of encroachment of these defendants, even that material aspect is required to be proved with cogent and acceptable evidence. However it has been urged in the written argument submitted by the plaintiff's counsel that in view of the sale by defendant No.1 of 226 sq.mts area out of 825 sq.mts of land allotted to his share the remaining land remained with him was only 589 sq.mts, but later he encroached upon 'A' to 'C' schedule properties by putting up the offending construction. 50 O.S.No.3356/2010
43. It is the further allegation of the plaintiff that the defendants have no right to use flat No.5 which is a roofed passage on the upper ground level as mentioned in the WILL which is a common area left between his grand- father Lakshmipathy and his father V.L. Vasudeva. As stated above, at the first instance he has failed to prove his right under Ex.P.14. Furthermore the burden is again on the plaintiff to show that this area shown as flat No.5 is a common area exclusively meant for usage of his father and grand-father. How far this claim of the plaintiff could be sustained in the given facts and circumstances of the case, is to be seen.
44. It is pertinent to note that if really there was any such encroachment by D.W.1, certainly it would have been opposed by his father V. Lakshmipathy who admittedly survived upto 2003. According to the plaintiff under Ex.P.14 WILL the property bequeathed to him was the portion of the property allotted to the share of his grand-father Lakshmipathy and on this property itself the encroachment has been done by these defendants. Under such circumstances had there been any such attempt by D.W.1 to encroach upon the portion of the property 51 O.S.No.3356/2010 allotted to his father's share certainly his father would not have allowed him to commit such wrong. This is one of such circumstance which would nullify the allegation of the plaintiff.
45. It is further pertinent to note that as stated above, all the sons of Lakshmipathy including late Lakshmipathy have admitted the allocation of properties under Ex.P.3 along with sketch annexed to it as per Ex.D.2 and had subscribed their respective signatures on these material documents. Under such circumstances when late Lakshmipathy himself had conceded to such allotment and measurements shown in these mother deeds certainly there is no question of any of the parties much less D.W.1 encroaching upon the portion of either the parents of the plaintiff or on the portion of the said Lakshmipathy.
46. One more material aspect which requires consideration at this juncture is that after execution of the release deed at Ex.P.5 on 10.10.2001 and the declaration dated 18.12.2002 as per Ex.D.9, D.W.1 demolished the property allotted to his share for development purpose and after such demolition the title and possession of said 52 O.S.No.3356/2010 area mentioned in these deeds got increased which fell within the allotted portion of D.W.1 as per the earlier partition deed of 1977. Under such circumstances if really there had been any such encroachment by D.W.1 certainly his father late Lakshmipathy would have resisted the same. On the contrary it is after his death a desperate attempt appears to have been made by P.W.1 and the plaintiff on the strength of the disputed Ex.P14 to oppose the said construction put up by D.W.1 on his property by claiming additional area under Ex.P14 which is not proved.
47. Moreover as stated above, the alleged claim of encroachment by the plaintiff is solely on the basis of the so-called private survey got conducted by him at their instance which is also not proved in this case and as rightly contended by D.W.1, the same is not binding on them. Moreover the boundaries mentioned in the partition deed of 1977 as well as in the sketch annexed to the said deed have not at all been modified or changed till this date and the same were also reported while conducting the detailed survey by the surveyor who was appointed in this case whose report is also before the court. Under such circumstances now it is not open either to the plaintiff or 53 O.S.No.3356/2010 to P.W.1 to still allege that defendant No.1 to 10 have made any such alleged encroachment over 'A' to 'C' properties.
48. Moreover in order to prove encroachment over a particular property, it must be proved with acceptable and clinching evidence both oral as well as documentary. As stated supra, the allegation of encroachment made by the plaintiff in this case is solely on the basis of the alleged private survey report which is not proved before the court either by examining the said person who allegedly conducted such private survey or by proving the alleged extent of encroachment as claimed by the plaintiff. Unless and until such encroachment is proved with cogent survey report by examining the concerned surveyor the contention in this regard by the plaintiff that the defendant No.1 to 10 have encroached on schedule 'A' to 'C' properties to the extent as claimed by him cannot be sustained. Consequently he cannot be held entitled to seek the relief of mandatory injunction. It would be equally relevant to refer the evidence of P.W1 in this regard.
54 O.S.No.3356/2010
49. In her cross-examination dated 10.02.2014 on page-27 PW1 has categorically admitted that no notice was issued to the concerned parties at the time of the said private survey. She has further admitted that she herself got surveyed the property through private surveyor to know about the precise measurement. On the contrary she has admitted that the sketch map annexed to the partition deed and rectification deed are one and the same and the same has been admitted by all the parties and also such measurement is not changed till this date. Under such circumstances as rightly contended by the defendants, the claim of the plaintiff or P.W.1 that the defendants have encroached upon 'A' to 'C' schedule properties to such an extent, cannot be believed nor it could be sustained.
50. It is relevant to note that from evidence of PW1, it is revealed that they were aggrieved by the alleged inequitable allotment of shares to their father, they appear to have come up with this suit. This intention is manifest from her further cross-examination dated 20.09.2014 on page-32 wherein she has categorically stated that the said partition is an unequal and injustice 55 O.S.No.3356/2010 partition as her father was deaf and partially dumb and therefore they do not accept the said partition. This statement of P.W.1 would clearly indicate the reason for their filing the present suit against defendant No.1. Had her father any grievance about such unequal partition as alleged by her, he would have very well challenged the same even during his lifetime, but till this date as per her own admission none of the parties have questioned the said partition of 1977.
51. Thus, what could be gathered from the conjoint reading of oral as well as the documentary evidence placed before the court is that the entire exercise undertaken by the plaintiff and P.W.1 is nothing but a desperate attempt by creating Ex.P14 to claim more share than the one allotted in the year 1977 to their father under Ex.P.3. Furthermore, the relief of Mandatory injunction is a discretionary relief which has to be exercised judiciously and strictly on the proof of such alleged infringement of one's legal rights. This burden is not sufficiently discharged by the plaintiff in the instant case. Consequently it cannot be said that the plaintiff 56 O.S.No.3356/2010 would be entitled to seek the relief of mandatory injunction.
52. It is further pertinent to note that even P.W.1 has clearly admitted that there was no point called 'E' in the ALCONS survey report which was submitted at the instance of all the parties much prior to filing of this suit. She has also admitted that even the said report do not disclose the alleged excess area in possession of the defendants. It is also not the allegation of the plaintiff or P.W.1 that the said ALCONS survey report is incorrect. Furthermore, except the solitary statement of PW1 in this regard, we have no evidence of any independent witnesses to substantiate this allegation of the plaintiff regarding the alleged encroachment.
53. Even PW1 has admitted in her cross-
examination on page-35 that there are no any constructions put up by the defendants in the alleged encroached portions though she claims that they have put up the electrical transformer but she could not give the extent of the area used for installation of the said transformer. All these aspects clearly falsify the allegation of the plaintiff that the defendants have encroached upon 57 O.S.No.3356/2010 plaint 'A' to 'C' schedule properties to the extent as mentioned by them. Even otherwise as discussed supra at the very first instance the plaintiff has utterly failed to prove the existence of any legal right in his favour with respect to suit schedule properties by virtue of the disputed Ex.P.14 WILL. Under such circumstances he cannot now claim any area by way of mandatory injunction from the defendants with respect to plaint 'A' to 'C' schedule properties. Hence in the given facts and circumstances of the case it could squarely be held that the plaintiff has failed to prove the case as against any of the defendants and hence all these issues are accordingly answered against him in the negative.
54. Issue No.7:- The contesting defendant No.1 & 2 have sought for dismissal of the suit of the plaintiff even on the ground of limitation. The defendant No.1 in para-2 of his written statement has made a bare statement that the plaintiff's suit is hopelessly barred by limitation, but it has not been substantiated as to how it has barred under law of limitation. The same contention is reiterated by defendant No.2 in para-1 of her written statement. However it is the specific allegation of the plaintiff in para- 58 O.S.No.3356/2010 30 of the plaint that the cause of action to file the suit arose in the year 2009 when he learnt about the encroachment on the suit schedule property and also when he issued legal notice to them on 12.12.2009.
55. It is further alleged by the plaintiff that in the year 2003 defendant No.1 applied for sanction of building construction before the BBMP which was valid till 2005 and he started putting up the alleged construction by encroaching upon the suit schedule property and further he has alleged that defendant No.1 in collusion with defendant No.2 started putting up the offending construction by encroaching on his area. It is to be noted that no specific dates are mentioned in the pleadings as to when exactly defendant Nos.1 & 2 started putting up the construction by encroaching upon his property.
56. However from the plain reading of the plaint allegations it is revealed that according to him after obtaining sanctioned plan in the year 2003 which was valid till 2005, the offending construction was started which indicates that between 2003 to 2005 according to him, the alleged construction must have been started by the defendant No.1 & 2. However the suit has been 59 O.S.No.3356/2010 brought in the year 2010 after more than 5-6 years of the alleged construction. Therefore, as rightly contended by the defendants 1 and 2, the claim of the plaintiff also deserves to be rejected as it is apparently shown to be barred by limitation. Hence this issue is answered in favour of the defendants in the affirmative.
57. Issue No.8 :- In view of the findings rendered on all the preceding issues, now it is apparently proved that the plaintiff has come up with this suit solely on the basis of Ex.P14 unregistered Will which has not been proved in accordance with law. Consequently it is to be concluded that he has no subsisting legal right to claim any reliefs with respect to the suit properties. Hence this issue also will have to be answered against him in the negative.
58. Issue No.9:- In the light of the findings given on the above issues and in the facts and circumstances of the case, the parties to this suit are directed to bear their own cost of litigation. In the result, the Court hereby proceeds to pass the following:-
60 O.S.No.3356/2010
ORDER The suit filed by the plaintiff against the defendants for the relief of declaration and Mandatory injunction is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by him on Computer, carried out corrections, print out taken and then pronounced in the Open Court on this the 20th day of January, 2022) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Ramya Vajapeyam List of documents exhibited for plaintiff:
Ex.P.1 : General Power of Attorney
Ex.P.2 : Certified copy of the partition deed
dt.17.12.1963
Ex.P.3 : Certified copy of the partition deed
dt.23.2.1977
Ex.P.4 : Certified copy of the rectification deed
dt.4.8.2000 with plan
Ex.P.5 : Certified copy of the Release deed
dt.10.10.2001
61 O.S.No.3356/2010
Ex.P.6 : Certified copy of the Sanctioned plan
Ex.P.7 : Letter issued by BBMP dt.21.10.2009
Ex.P.8 : Copy of legal notice
Ex.P.9 : Twelve postal Acknowledgements
Ex.P.10 : Three returned RPAD covers
Ex.P.11 : Reply notice
Ex.P.12 : Khatha certificate dt.23.1.2009 Ex.P.13 : Khatha extract Ex.P.14 : Original Will deed with plan dt.17.10.1999 Ex.P.15 : Certified copy of the representation letter dt.12.5.2010 Ex.P.16 : Another representation letter dt.12.5.2010 Ex.P.17 : True copy of letter issued by BBMP(D.2's husband note) Ex.P.18 : True Copy of Indemnity Bond dt.13.2.2002 along with affidavit of first defendant Ex.P.19 : True copy of letter dt.2.3.2002 issued by BBMP to the first defendant Ex.P.20 : True copy of reply letter dt.5.4.2002 by the first defendant Ex.P.21 : True copy of bond of first defendant dt.1.1.2003 Ex.P.22 : True copy of letter of first defendant dt.1.11.2003 Ex.P.23 : True copy of bond of defendant No.1 dt.4.11.2003 with affidavit Ex.P.24 : True copy of Indemnity bond by 62 O.S.No.3356/2010 defendant No.1 dt.4.11.2003 Ex.P.25 : True copy of calculation sheet Ex.P.26 : Four photographs along with negatives Ex.P.27 : True copy of declaration List of witnesses examined for defendants:
D.W1 : V.L. Balasubramanya D.W2 : R. Srinivasan
List of documents exhibited for defendants:
Ex.D1: Declaration by the testator.
Ex.D2: Sketch enclosed to the registered
partition deed of 1977.
Ex.D3: Sketch filed alongwith rectification deed.
Ex.D4 : GPA
Ex.D4(a) : Signature of defendant No.2
Ex.D5 : Joint development agreement.
Ex.D6 : Letter dtd.05.04.2002
Ex.D7 : Certified copy of calculation sheet
Ex.D8 : Certified copy of letter dtd.03.04.2009
Ex.D9 : Certified copy of declaration
Ex.D10 : Certified copy of order copy
Ex.D11 : Certified copy of letter issued by BBMP
Ex.D12 : Certified copy of letter dtd.22.08.2016
Ex.D13 : Certified copy of police complaint
Ex.D14 : Certified copy of letter dtd.22.04.2014
Ex.D15 : Certified copy of police complaint
Ex.D16 : Certified copy of reply
Ex.D17 : Certified copy of letter dtd.22.08.2016
Ex.D18 : Certified copy of release deed
63 O.S.No.3356/2010
Ex.D19 : Sketch
Ex.D20 : Sanctioned plan
Ex.D21 : Modified sanctioned plan
X Addl. City Civil & Sessions Judge,
Bangalore.