Bangalore District Court
Ramanna M vs The Commissioner Bbmp on 5 August, 2024
KABC010212132021
IN THE COURT OF THE III ADDL. CITY CIVIL AND
SESSIONS JUDGE, (CCH-25) AT BENGALURU.
DATED: THIS THE 5TH DAY OF AUGUST, 2024.
PRESENT : Smt. Nisharani A.C., B.A., LL.B.,
III Addl. City Civil and Sessions
Judge, Bengaluru)
O.S.NO.5368/2021
Plaintiff : Sri.M.Ramanna,
Aged about 57 years,
S/o M.Muniyappa,
Residing at No.53,
3rd Main Road,
2nd Cross, BTM II Stage,
Bangalore-560076
(By Sri.BRV., Advocate)
V/S
Defendants : 1. The Commissioner,
Bruhat Bangalore Mahanagra Palike,
Bangalore.
2. The Executive Engineer,
Major Drainage,
Bommanahalli Division,
Bruhat Bangalore Mahanagra Palike,
9th floor, Jayanagar Shopping Complex,
Jayananagar 4th Block,
Bangalore-560 011.
(By Sri.KNM., Advocate)
Date of institution of Suit 01-10-2021
2 O.S.No.5368/2021
Nature of the Suit Permanent Injunction and such
other consequential reliefs.
Date of commencement 07-06-2023
of recording of evidence
Date on which Judgment 05-08-2024
was pronounced
Total duration Year/s Month/s Day/s
02 10 04
(Nisharani A.C)
III ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU
JUDGMENT
This instant suit is filed by the plaintiff against the defendants seeking the relief of permanent injunction restraining the defendants from in any way interfering and meddling with the plaintiff's peaceful possession and enjoyment of the suit schedule property and such other consequential reliefs and costs.
2. The brief facts of the Plaintiff's case is as under- The plaintiff is the absolute owner of the suit schedule property. The plaintiff has been paying the property tax regularly. The land bearing Sy.No.177/6 of Bilekahalli village, Begur hobli, Bangalore South Taluk, of which the suit schedule property is carved, is converted for non-agricultural industrial 3 O.S.No.5368/2021 and commercial purpose vide official Memorandum No.ALN.CR.(S).138/85-86 dated: 26.11.1985 issued by the Office of the Deputy Commissioner, Bangalore District, Bangalore. The entire extent in the said survey number measuring 13 guntas has been converted. At that point of time the concerned authority has inspected the spot and a sketch was also drawn. In the said land there is no drain or kaluvs. There is no karab land also.
2(a). It is stated that there is no encroachment of any water drainage or water drain. The plaintiff has not constructed any building on the wall belonging to the drain K-209. The defendant No.2 herein issued a notice on 31.08.2021 stating that the drain K-209 which was recently formed without there being any acquisition or requisition proceedings in respect of the lands belonging to the plaintiff, is encroached upon. It is stated that the walls protecting the said drain K-209 are intact and they were all constructed by the plaintiff. The construction is within the permissible limit and is in consonance with zonal regulation and building bye law, when once there was no drain or canal in the said survey number, the very formation of drain K-209 is illegal. The Plan has been sanctioned for the construction of the building by the competent authorities i.e., 4 O.S.No.5368/2021 The Administrator, Bilekahalli Grama Panchayat, Bangalore, on 15.03.1994. The building is existing since then and subsequently no additional construction has been made. Hence the claim that the wall pertaining to K-209 has to be renovated etc., are all baseless. Even without disturbing the property belonging to the Plaintiff, the repair work can be carried out or new supporting wall can be constructed. In view of the fact that there is neither encroachment nor illegal occupation of the said K-209 Drain, the notice is not maintainable. The Defendants are not having any manner of right to demolish the compound wall constructed by the Plaintiff for the purpose of K-209 drain as the works can be undertaken without disturbing the compound wall belonging to the Plaintiff. However the Defendants are illegally trying to interfere with the peaceful possession and enjoyment of the suit schedule property by the Plaintiff. If the Defendants succeed in their efforts, the Plaintiff will be put to irreparable loss, damage and injury. Hence, prays to decree the suit.
3. The defendants have appeared through their Counsel and filed written statement by denying the averments of the plaint. It is submitted that, during the rainy season there would be regular floods in properties of the J.P. Nagar, 4th Stage, Dollars Colony, because of back water caused due to 5 O.S.No.5368/2021 the narrowing section near the suit schedule property. The Plaintiff has illegally put up shed and compound wall over the retaining wall of the storm water drain. Hence, the residents of J.P. Nagar 4th Stage, Dollars Colony, Bengaluru complaining the encroachment of storm water drain and also a case of negligence of duty was filed in the National Human Rights Commission, Delhi by the Residents Welfare Association of J.P. Nagar, 4th Stage, Bengaluru, against the B.B.M.P. on this recurrent problem of submergence of the residential area being not solved by the B.B.M.P. for a long time. Therefore these Defendants have taken action as per B.B.M.P. Act, issued a notice to the Plaintiff to remove the compound wall and shed land over the retaining wall of the storm water drain. The Plaintiff has approached this Hon'ble Court with all false and baseless allegations to prevent these Defendants from taking appropriate action against the Plaintiff for his illegal act of encroachment upon the public property i.e. storm water drain. These defendants have taken action not only against the plaintiff but also against all the persons who have encroached upon the property without the knowledge of these defendants illegally. The said storm water drain was already existing. These Defendants have not formed any new storm water drain. 6 O.S.No.5368/2021 The Plaintiff encroached the storm water drain and put up shed and compound wall over the retaining wall of storm water drain. The maintenance of storm water drain is necessitated to avoid the stagnation of water and flooring in the area causing damages in the locality road and houses. The width of the drain (K209) 6.0 meters existed but near the suit schedule property the same was encroached by the Plaintiff an extent of 2.0 meters. The work was proposed so as to avoid further recurrent flood of J.P. Nagar 4th Stage Dollars Colony Area during rainy season. As such encroachment portion requires to be removed for free flow of water in the storm water drain. Therefore the suit of the Plaintiff is liable to be dismissed. There is no cause of action for the suit. Hence prayed to dismiss the suit.
4. On the above rival contentions this court framed the following issues :-
ISSUES
1. Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property?
2. Whether the plaintiff proves that the defendants are interfering with their peaceful possession and enjoyment over the suit schedule property?7 O.S.No.5368/2021
3. Whether the plaintiff is entitled for the relief of permanent injunction as sought for?
4. What order or decree?
5. In order to prove/substantiate his case, plaintiff himself examined as PW.1 and got marked as per Ex.P1 to P.17. Defendants not led any evidence nor got marked any documents on their behalf, hence case is posted for arguments.
6. Heard arguments of both the sides.
7. My findings on the above issues are as under -
ISSUE NO.1 : Partly in Affirmative ISSUE No.2 : Partly in Affirmative, ISSUE NO.3 : As per final order, for the following-
REASONS
8. ISSUE NO.1 & 2: Since these two issues are inter- related with each other, they are being taken up together for discussion at a stretch in order to avoid repetition of facts.
This Court framed issues putting the burden on the plaintiff to prove that he is the absolute owner of the property. In order to prove that the plaintiff is the owner of the property he has produced totally 17 documents. Ex.P.1 is notice, dated 8 O.S.No.5368/2021 31.08.2021 issued by BBMP to the plaintiff, Ex.P.2 is Certificate regarding katha issued by BBMP dated 16.12.2012, Ex.P.3 is Assessment Extract regarding suit schedule property, Ex.P.4 is Reply notice given by plaintiff to the executive engineer BBMP dated 07.09.2021, Ex.P.5 is Certified copy of Final Decree passed in OS No. 4081/1996, Ex.P.6 is Village Map of Bellakana Halli, Ex.P.7 is Sanction Plan dated 16.01.1993, Ex.P.8 is Building Construction licence dated:13.01.1993, Ex.P.9 is Laminated Official Memorandum dated 26.11.1988, Ex.P.10 is Tax paid Receipt, Ex.P.11 is Photographs (7 Nos.) Broken CD is produced by the Plaintiff. Ex.P.12 is Laminated RTC Extract, Ex.P-13 original partition deed,dt.20.12.1993, Ex.P-14 Certified copy of final decree in O.S.No.4081/1996, Ex.P-15 is Certificate under Section 65-B of Indian Evidence Act, Ex.P-16 is one C.D. Ex.P-17 is survey record.
9. According to plaintiff he got his title over the property by virtue of certified copy of F.D.P. in O.S.No.4081/1996 through partition decree passed through Court in O.S.No.4081/1996. Then the plaintiff also furnished the notice 9 O.S.No.5368/2021 dated: 31-8-2021 issued by B.B.M.P. in that notice defendant clearly stated that to remove the compound wall put up by the plaintiff which is encroached the storm water drain and to retaining wall of storm water drain, to avoid stagnation, and a case already registered before National Human Rights Commission, Delhi, by the Residents Welfare Association, J.P.Nagar. The plaintiff in turn, given reply notice to the B.B.M.P. on 7-9-2021 stating that the land belongs to him and he is the absolute owner of the said property. The land converted for non-agricultural Industrial and Commercial purpose in vide official Memorandum No.ACNR (S) 138/85-86 dated: 26-11-1985 of the order of Deputy Commissioner, Bangalore. He has not encroached the land belonging to B.B.M.P. plaintiff is the absolute owner of the suit schedule property and there is no encroachment.
10. Now, the question before this Court is whether the plaintiff encroached the land or whether he/plaintiff is the absolute owner of entire suit schedule property. However, the defendant have filed their written statement, after that they have not appeared before the court and not even taken effort to cross-examine the witness PW1- and even not led their side evidence.
10 O.S.No.5368/2021
11. The counsel for plaintiff vehemently argued that plaintiff is the absolute owner of the suit schedule property totally measuring East-West; 85 ft and North-South 94 ft. the plaintiff produced the village map Ex.P-6. Ex.P-7 Sanction plan, Ex.P-9 Official Memorandum of Deputy Commissioner, Bangalore. Ex.P-10 Tax paid receipt for the year 2023-24. Ex.P-12 is the R.T.C. for the year 1989. Here, in column No.13 of Ex.P-12 there is a mention of Kharab (a) 0.14 Guntas. Kharab (b) 0.14 Guntas.
12. Let us discuss, according to Karnataka Land Revenue Act, the meaning appended to Kharab (a) land and kharab (b) land. Kharab land meaning according to Karnataka Land Revenue Act, 1964 "any piece of open land which cannot be used for framing or cultivation when the land survey was conducted" again classified as Karab land. Karnataka Government has ownership and authority over such lands and can use kharab land for public purpose. Kharab land can be used for various projects including development of biodiversity part, play ground, water body, rock claiming area, and jogging track. Kharab land BBMP is also known as phut or pot kharab. Generally, this type of land classified into two i.e. 'A' kharab and 'B' Kharab land. The meaning of (a) kharab land is explained 11 O.S.No.5368/2021 under section 21(2)(a) of Karnataka Land Revenue Act 1964, wherein under As per Karnataka Land Revenue Act, 1964.
Section 21 (2) (a) defines 'A' Kharab land farm buildings which are unsuitable for farming at the time of surveys. A kharab can be consolidated and transformed land owner possess all the property related rights. Asses for land revenue.
As per Section 21 (2) (b) defines 'B' kharab land:- Land which belongs to the government and cannot be converted by a private party. These lands are used for public purposes such as, burial grounds, parks, foot paths, tanks, and streams. The government holds all property related rights. Exempted from land revenue assessment.
13. The meaning of (b)kharab land is explained under Section 21 (2) (b) of Karnataka land Revenue Act. It is clear from looking into the definitions that even though by paying Revenue the (a) kharab land can be retained to the owner, ( b) kharab land belongs to the government which can be very much utilised for public purpose and the 'B' kharab land exempted from revenue assessment.
14. Here, the defendant seeking 2.6 meters of land for drain purpose wherein the storm K-902 drain water will be 12 O.S.No.5368/2021 collected and by that drainage it will affect the residents of J.P.Nagar, dollars colony It is necessary to note that the Government not encroaching the land of the plaintiff besides seeking the 0.14 guntas of (b) kharab land for the public purpose/welfare at large. If suppose, if that land not given to the B.B.M.P. then the storm drain water will be collected and it will leads to the chronic diseases at large not only for the residents of the J.P.Nagar, Dollars Colony even for the other people also. Hence by considering the public welfare at large and even by verifying the Ex.P-12 the document produced by the plaintiff himself shows that that 0.14 land is (b) kharab land,
(b)kharab land is the government land in which government can use it for the public purpose at large.
15. However, by providing the documents in support of his contention that he is the owner of entire suit schedule property and he is in possession of the suit schedule property is proved by the plaintiff. Besides, he himself produced one document which is marked as Ex.P-12 in which is clearly forthcoming that, 0.14 guntas of land comes under 'B' karab which is already explained in this judgment in supra. Hence, however, even though the plaintiff is entire owner of the property he cannot entitled for title or possession over that 'B' 13 O.S.No.5368/2021 karab land as it is comes under definition of government land and government can utilise that 0.14 guntas for public purpose. Hence, the plaintiff cannot seek any relief with respect to 'B' karab land i.e. 0.14 guntas. Besides, plaintiff also failed to prove his title over the part of land which is alleging that defendant encroaching that part of suit schedule property. The plaintiff failed to prove that he is absolute owner of the land which he is alleging that the defendant has encroaching the property and there is no interference from the defendant.
16. Hence with all these observations, I answer Issue No.1 & 2 Partly in Affirmative.
17. ISSUE No.3: In view of my findings on Issues No.1 & 2, plaintiff is entitled for relief of permanent injunction partly, hence I answer this issue partly in affirmative.
18. ISSUE No.4: In view of findings on Issues No.1 to 3, I pass the following -
ORDER The suit of the Plaintiff is hereby Decreed Partly.
The defendants are hereby restrained by way of permanent injunction from interfering 14 O.S.No.5368/2021 with the plaintiff's peaceful possession and enjoyment of suit schedule property.
The suit of the plaintiff is dismissed in respect of 0.14 guntas of 'B' kharab land of suit property.
Draw decree accordingly, (Dictated to the Steno Gr.II on computer, after correction pronounced by me in open Court on this the 5th day August, 2024).
(NISHARANI A.C) III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU Witnesses examined on behalf of Plaintiff:
PW.1 : Sri.K.M.Ramanna, Documents marked on behalf of Plaintiff:
Ex.P1 : Notice, dated 31.08.2021 issued by BBMP to the plaintiff.
Ex.P2 : Certificate regarding katha issued by BBMP dated 16.12.2012.
Ex.P3 : Assessment Extract regarding suit schedule property.
Ex.P4 : Reply notice given by plaintiff to the
executive engineer BBMP dated
07.09.2021.
Ex.P5 : Certified copy of Final Decree passed in
OS No. 4081/1996.
Ex.P6 : Village Map of Bellakana Halli.
15 O.S.No.5368/2021
Ex.P7 : Sanction Plan dated 16.01.1993.
Ex.P8 : Building Construction licence
dated :13.01.1993.
Ex.P9 :Laminated Official Memorandum dated 26.11.1988.
Ex.P10 : Tax paid Receipt.
Ex.P11 : Photographs (7 Nos.) Broken CD is produced by the Plaintiff.
Ex.P12 : Laminated RTC Extract. Ex.P13 : Original partition deed, dt:20.12.1993 Ex.P14 : C/c of Final decree in O.S.No.4081/1996 Ex.P15 : Certificate under Sec.65-B of Indian Evidence act Ex.P16 : One CD Ex.P17 : Survey record dt: 01-07-2023
Witness examined and Documents Marked on behalf of Defendants:
-NIL-
(NISHARANI A.C) III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU) 16 O.S.No.5368/2021