Bangalore District Court
Brothers Of Holy Cross vs ) The Commissioner on 22 November, 2022
KABC0A0043542011
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE MAYOHALL UNIT, BENGALURU
(CCH75)
Dated this 22nd Day of November 2022.
PRESENT:
SRI. MOHAMMED MUJEER ULLA C.G.B.A. LL.B.,
LXXIV Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT NO. 26708/2011
PLAINTIFF: Brothers of Holy Cross,
Holy Cross School,
Abayadama Campus,
Whitefield Post,
Bangalore560 066.
Represented by its Principal
Bro. Philip Noronha
REP BY: Sri. Cyril Prasad Pais, Advocate
V/s
DEFENDANTS: 1) The Commissioner,
Bruhat Bengaluru Mahanagara
Palike BBMP,
Whitefield SubDivision,
Bangalore560 066.
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O.S.No.26708/2011
2) The Executive Engineer,
Bruhat Bengaluru Mahanagara
Palike BBMP,
Whitefield SubDivision,
Bangalore560 066.
3) Mr. Dayanandasagar K.,
Major, Pattanduru Agrahara village,
Whitefield, Bengaluru.
REP BY: D1 & 2: by Sri. Bathe Gowda K.V., Advocate
For D3 Sri. T.Sheshigiri Rao, Advocate
Date of Institution of the suit 29/09/2011
Nature of the Suit (Suit on pronote,
DECLARATION AND
suit for declaration and
INJUNCTION SUIT
possession, suit for injunction, etc.)
Date of the commencement of
22.04.2017
recording of the Evidence.
Date of pronouncement of
22.11.2022
Judgment
Total duration Year/s Month/s Day/s
11 01 23
JUDGMENT
Plaintiff has filed the instant suit to declare that there is no public road in the suit property and Perpetual Prohibitory Injunction restraining defendants, their men, agents, servants, representatives or whomsoever on their behalf from forming road in the suit property and costs. 3
O.S.No.26708/2011 Facts of the case:
2. Plaintiff is the absolute owner and in possession of suit property i.e., land in Sy.No.49 of Pattanduru Agrahara village, K.R.Puram Hobli, Bangalore South Taluk measuring 8 acres 28 guntas. Plaintiff purchased the said property from Mr.Milicent Gewndoline Charlotte Hewitt under the registered sale deed dtd.22.07.1980.
Since the date of purchase plaintiff has been in possession and enjoyment of the said property. Plaintiff contends that it is a charitable educational institution and nongovernment organization. It is running a school in the suit property under the name of 'Holy Cross School'. It contends that after purchase of suit property it has enclosed it by constructing stone wall. On 20.10.2010 it has received notice from the 2 nd defendant the Assistant Executive Engineer, BBMP stating that it has put up gate by blocking the public road. Plaintiff contends that there is no public road in the suit property. Since the date of purchase it has been in possession and 4 O.S.No.26708/2011 enjoyment of the suit property by enclosing the said property with compound wall. It contends that despite it has been in peaceful possession and enjoyment of suit property, since 1981 till 2010 nobody raised objection with its possession and enjoyment of the suit property by contending that it has blocked the public road. Plaintiff contends that defendants 1 and 2 are contending that they received representation from the public stating that, it has put up compound wall and fixed gate by blocking the public leading to Muneshwara temple. Plaintiff contends that there is separate road to gain access to the said temple. There is no road in the suit property to gain access to the temple. Plaintiff contends that defendants 1 and 2 at the instigation of 3rd defendant and others having vested interest making attempts to demolish the compound wall constructed around the suit property and to form road therein. The said acts of the defendants, their men and representatives are illegal, highhanded and tortuous. Therefore the same are to be restrained by 5 O.S.No.26708/2011 granting the relief of injunction. Plaintiff contends that in view of defendants falsely contending that there is public road in the suit property, it has sought the relief of declaration to declare that there is no public road in the suit property. On these and other grounds stated in the plaint plaintiff prays to decree the suit and grant the relief of declaration and injunction as prayed for.
3. Defendants resisted the suit by filing the written statement. Defendant No.1 and 2 are the Commissioner and Executive Engineer of BBMP. Defendant No.3 is a private person. Defendants 1 and 2 filed common written statement. Defendant No.3 has filed separate written statement. But the contentions taken by them are more or less similar. They contend that a public road/cart way is existing in the suit property. The said road has been existing since time immemorial and it is also shown in the village map. Public and residents of the localities situate near suit 6 O.S.No.26708/2011 property have been using the said road/cart way to gain access to Gramatana and Muneshwara temple. Defendants contend that the plaintiff has put up compound wall by encroaching the public road. The residents of the locality given complaint to BBMP stating that they have no access to reach Gramatana and Muneshwara temple in view of plaintiff blocked the public road by putting compound wall and gate. Defendants 1 and 2 contend that after receipt of representation from the residents of the locality they conducted spot inspection and issued notice to plaintiff to remove the compound wall and gate put up by blocking public road. After receipt of notice plaintiff did not comply the demand made therein and filed the instant suit by falsely contending that public road is not existing in the suit property. Defendants denied that they made attempts to form a new road in the suit property and to remove the gate and compound wall of the said property. Defendants contend that as per the Gazette Notification 7 O.S.No.26708/2011 dtd.13.01.1959 the entire Pattandur Agrahara village being a Jodi Inam village stood vested with Government. Therefore the plaintiff has no right over the suit property. Hence it is not entitled for the relief of declaration and injunction. On these and other grounds stated in the written statement defendants pray to dismiss the suit.
4. On the basis of aforesaid pleadings, the then Presiding Officer formulated the following:
ISSUES
1) Whether the plaintiff school proves that it is the absolute owner in lawful possession of plot Nos.13 and 25 situated in Sy.No.49 measuring 8 acres 28 guntas of Pattanduru Agrahara village, K.R.Puram Hobli, Bengaluru South Taluk?
2) Whether the plaintiff school proves that there is no any public road abutting to the suit schedule?
3) Whether the defendant No.3 proves that the plaintiff school has mis 8 O.S.No.26708/2011 described the suit schedule property by giving old Sy.Nos. Though there is public road as mentioned in the village map of pattanduru Agrahara village, K.R.Puram Hobli, Bengaluru South Taluk and the suit schedule road is belong to the Government?
4) Whether the plaintiff school proves the alleged interference of the defendants for the enjoyment of the suit road by the plaintiff school?
5) Whether the plaintiff school proves that it is entitled for declaration to declare that there is no public road in the suit schedule property and for permanent injunction against the defendants as prayed for?
6) What order or decree?
On 19.02.2021 the above issues were deleted and the following issues were formulated:
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O.S.No.26708/2011
1) Whether the plaintiff proves that, defendants made attempts to illegally form road in the suit property?
2) Whether the defendants prove that, public road passes in the suit property?
3) Whether plaintiff is entitled for the relief of declaration and injunction as prayed for?
4) What order or decree?
5. Plaintiff examined its Administrators as PW1 & PW2 and marked documents at Ex.P.1 to 33. Defendants 1 and 2 examined the Assistant Executive Engineer of BBMP as DW1 and marked documents at Ex.D.1 to 9. Defendant No.3 has neither lead oral evidence nor produced documentary evidence.
6. Heard learned counsel for the plaintiff. Learned counsel for defendant No.1 and 2 filed written arguments. Defendant No.3 not submitted arguments.
7. My finding on the above recasted issues are as under:
10
O.S.No.26708/2011 Issue No.1: In the Affirmative, Issue No.2: In the Negative, Issue No.3: Partly in Affirmative, Issue No.4: As per the final order for the following:
REASONS:
8. Issue No.1 and 2: These two issues are in respect of road in the suit property. Therefore, to avoid the repetition of facts and evidence and also for convenience they are taken together for consideration.
9. PW1 Bro. Nelson D'Souza and PW2 Bro.James Sebastian Csc., Administrators of the plaintiff in their examinationinchief reiterated and reaffirmed the plaint averments. PW1 after examinationinchief did not appear to lead further examinationincheif. It appears that when the case was posted for further examination in chief of PW1 the plaintiff viz., Brothers of Holy Cross changed it administrator and appointed new administrator. The new administrator was examined as PW2. He produced Ex.P.1 Authority letter, Ex.P.2 Sale 11 O.S.No.26708/2011 deed dtd.22.07.1980. Ex.P.7 to 10 and 21, Encumbrance Certificates of the suit property, Ex.P.11 to 15 RTCs of the suit property. Ex.P.16(1 to 8) Tax paid receipts. Ex.P.17 Khatha Certificate, Ex.P.18 Certificate of land, Ex.P.19 Registration Certificate, Ex.P.23 Khatha Certificate, Ex.P.25 Index of lands, Ex.P.26 Ledger Extract, Ex.P.27 the Record of rights. The recitals of the above said documents would support the testimony of PW1 that under Ex.P.2 Sale deed dtd.22.07.1980 plaintiff purchased the suit property and on the basis of the sale deed, khatha and other records of the said property got mutated in its name and it has been paying tax to the Government.
10. PW2 has stated that since the date of purchase plaintiff has been in possession and enjoyment of the suit property and plaintiff has enclosed the suit property by constructing stone compound wall. PW2 has stated that plaintiff is running a school in the suit 12 O.S.No.26708/2011 property. PW2 has stated that there is no public road in the suit property. He stated that defendants are making attempts to form road in the suit property. PW2 has produced Ex.P.28 photos of the suit property. A perusal of the said photos would show that the suit property is enclosed with a stone wall. DW1 Assistant Executive Engineer of BBMP in the crossexamination at page No.9 and 10 has admitted that the suit property is enclosed with the stone wall. In the crossexamination of PW2 nothing has been elicited to disbelieve his testimony that the suit property is in possession of plaintiff.
11. Defendants contend that the suit property is a Jodi inam land. As per the Notification dtd.12.01.1959 issued in exercise of the powers U/Sec.1(4) of the Mysore (Personal and Misc. Inam Abolition Act), 1954 the suit property vested with Government. Defendants have not produced the said Notification. In the instant case plaintiff is not claiming declaration of title over the suit property. Therefore, whether the suit property vested 13 O.S.No.26708/2011 with State Government or not is not a point which the Court has to be consider and give findings in this case.
12. In the instant case the dispute is regarding existence of public road in the suit property. Defendants contend that there is public road/bandi daari in the suit property. The public are using the said road to gain access to Muneshwara temple. DW1 the Assistant Executive Engineer of BBMP has stated that plaintiff blocked the said road by putting up compound wall and gate. PW2 has stated that there is no road in the suit property.
13. Defendants 1 and 2 to prove the existence of public road in the suit property examined DW1 S.H.Chandra Mohan, the Assistant Executive Engineer of BBMP. In the examinationinchief he reiterated and re affirmed the averments of written statement. He produced Ex.D.1 Complaint dtd.08.09.2010, Ex.D.2 Notice dtd.18.11.2010, Ex.D.3 Notice dtd.20.10.2010, 14 O.S.No.26708/2011 Ex.D.4 Notice dtd.13.01.2011, Ex.D.5 Notice dtd.18.01,2011, Ex.D.6 Notice dtd.30.09.2011, Ex.D.7 Village Map, Ex.D.8 Bangalore Revised Master Plan 2015 (White field) and Ex.D.9 Gazette Notification. To prove the existence of road defendants 1 and 2 are placing reliance on Ex.D.7 Village Map. DW1 has stated that in Ex.D.1 Village Map existence of public road/bandi jaadu/cart way is shown in dots.
14. During the course of crossexamination of DW1 when the learned counsel for the plaintiff asked him to identify Sy.No.18 in which land temple is existing and the location of some other lands DW1 has stated that by seeing the Village Map he is not in a position to identify lands with reference to survey numbers. Thus from the facts stated by DW1 in the crossexamination would show that by seeing Ex.D.7 Village Map he is not in a position to say in which land the existence of bandi jaadu has been shown by drawing dot lines. Except 15 O.S.No.26708/2011 placing reliance on Ex.D.7 Village Map the defendants 1 and 2 have not produced any other document to prove the existence of public road/bandi jaadu in the suit property. DW1 in the crossexamination has stated that BBMP has prepared Comprehensive Development Plan of Bangalore city. In the said plan roads, temples, public offices, colleges are shown. During the course of cross examination when the learned counsel for the plaintiff confronted 2 sketches/plans, DW1 has stated that the said sketches/plans are prescribed Revised Master Plan for Bangalore Development Authority Local Planning Area, 2031. Therefore, they are marked at Ex.P.30 and
31. DW1 has stated in Ex.D.30, 31 plans/sketches the public road is not shown in the suit property. DW1 has stated that despite in Ex.P.30 & 31 plans/sketches public road is not shown in the suit property, but the road is existing in the said property. In view of the said statement of DW1 Commissioner was appointed for local inspection. Advocate Vasanth V.Fernandis was 16 O.S.No.26708/2011 appointed as Court Commissioner. The Court Commissioner conducted the spot inspection in the presence of Assistant Engineer of BBMP and representatives of plaintiff and filed report. In the report while answering to the memo of instructions he stated that public road is not existing in the suit property. Though sufficient time given defendants not filed objection to the commission report. Thus, the report of the Court Commissioner would support the contention of the plaintiff that public road is not existing in the suit property. When the public road is not existing in the suit property, the contention of the defendants that plaintiff blocked the public road by constructing compound and installing gate cannot be accepted.
15. The contention of the defendants is that, the road leading to Muneshwara temple is existing in the suit property. During the course of crossexamination of DW1 the learned counsel for the plaintiff confronted 17 O.S.No.26708/2011 photos of road leading to Muneshwara temple. DW1 has admitted the said photos and they were marked at Ex.P.28 (1 to 9). The Court Commissioner in his report has stating that from ESR Road, there is a road leading to Muneshwara temple and the public are using the said road to go to the said temple, therefore the said road is called as Muneshwara temple road. DW1 in the cross examination has admitted that the road depicting in Ex.P.29 (1 to 9) photos is not passing in the suit property. Thus from the report of Court Commissioner and the facts stated by DW1 in the crossexamination it is evident that the road leading to Muneshwara temple is not existing in the suit property and there is no public road as alleged by defendants in the suit property.
16. PW1 has stated that though there is no public road in the suit property at the instigation of 3 rd defendant, defendants 1 and 2 are making attempts to form road in the suit property. Admittedly after receipt of 18 O.S.No.26708/2011 Ex.D.1 complaint 2nd defendant issued Ex.D.3 Notice dtd.20.10.2020, Ex.D.5 Notice dtd.18.01.2011 and Ex.D.6 Notice dtd.30.09.2011 to plaintiff to remove the gate and allow the public to pass through the suit property. The very contention of the defendant No.1 and 2 it is clear that they want a public road in the suit property. In the foregoing paras I opined that defendants failed to prove the existence of public road in the suit property. Therefore, from the facts stated by DW1 and the documents marked at Ex.D.1 to D.7, it is clear that though there is no public road in the suit property defendants want to have a road in the said property. This would support the contention of the plaintiff that defendants are making attempts to form road in the suit property. In view of the above I hold that defendants failed to prove that public road passes in the suit property. On the other hand, plaintiff proved that though there is no public road in the suit property defendants are making attempts to form the road in the said 19 O.S.No.26708/2011 property. In view of the above I answer to Issue No.1 in the Affirmative and Issue No.2 in the Negative.
17. Issue No.3: As per Section 34 of Specific Relief Act the plaintiff has to seek assertive declaration about any legal character or right over the property. Seeking negative declaration is not permissible. In support of my view I place reliance on the Division bench Judgment & Hon'ble High Court of Karnataka in M/s. Kolte Patil Developers Ltd. V/s. Nti Housing Cooperative Society. Therefore, the plaintiff is not entitled for the negative declaration to the effect that there is no public road in the suit property.
18. While answering Issue No.1 and 2 I have held that, defendants failed to prove the existence of public road in the suit property. Further I have held that defendants made attempts to form road in the suit property by contending that public road passes in the said property. From the material available on record it is 20 O.S.No.26708/2011 evident that plaintiff has enclosed the suit property by constructing compound wall and by installing gates. Plaintiff running school in the suit property. When such is the case in view of the false claim by defendants that there exist a public road in the suit property I am of the opinion that to protect plaintiff's possession over the suit property, it is just and proper to grant the relief of injunction restraining defendants from forming road in the suit property. Defendants 1 and 2 are the authorities of the BBMP. BBMP being a statutory body can form road in the suit property by acquiring the property. Therefore, I am of the opinion that plaintiff is entitled for the relief of injunction restraining defendants not to form road in the suit property, otherwise in due course of law. In view of the above I answer to Issue No.3 Partly in the Affirmative.
19. ISSUE NO.4: In view of my reasons and findings on the above issues, I pass the following: 21
O.S.No.26708/2011 ORDER Plaintiff's suit is partly decreed.
Defendants, their men, agents, representatives and whomsoever on their behalf are restrained from forming road in the suit property, otherwise than in due course of law.
No order as to costs.
Draw Decree Accordingly.
********** (Dictated to the Judgment writer, transcript thereof corrected and then pronounced by me in the open court on this the 22nd day of November 2022) (MOHAMMED MUJEER ULLA C.G.) LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court, Bengaluru. (CCH - 75) ANNEXURES: LIST OF WITNESS EXAMINED FOR THE PLAINTIFF:
PW.1 - Bro. Nelson D'Souza
PW.2 Bro.James Sebastian Csc.
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O.S.No.26708/2011
LIST OF DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P. 1 Authority letter Ex.P.2. Sale deed dated 22.07.1980 Ex.P.3. Letter dated 18.01.2011 Ex.P.4 Letter dated 20.10.2010 Ex.P.5. Suvarna Katha Acknowledgment dated 19.08.2010 Ex.P.6. Legal notice dated 01.02.2011 Ex.P.7. Encumbrance Certificate from 01.04.1980 to 31.05.1989 Ex.P.8. Encumbrance Certificate from 01.06.1989 to 31.03.2004 Ex.P. 9 Encumbrance Certificate of Sy.No.1 from 01.04.2004 to 30.09.2008 Ex.P. 10 Sy.No.49 from 01.04.2008 to 06.10.2008 Ex.P.11. RTC pertaining to years 19811982 of Sy.No.1 Ex.P.12 & 13. RTC pertaining to years 19971999 of Sy.No.49 & 1 Ex.P.14 & 15. RTC pertaining to years 20072008 of Sy.No.49 & 1 Ex.P.16 Certified copies of 8 tax paid receipts for (1 to 8) the years 20102011, 20112012, 2012 2013, 20132014, 20142015, 20152016, 20162017, 20172018 Ex.P.17 Khatha Certificate Ex.P.18 Certificate of Land dated 26.09.2008 Ex.P.19 Registration Certificate dated 02.04.2016 Ex.P.20 13 photographs and one C.D Ex.P.21 Certificate issued by the Income Tax Authorities Ex.P.22 Legal notice dated 03.10.2011 Ex.P.23 Khatha certificate dated 13.02.2013 Ex.P.24 Encumbrance certificate from 15.04.1969 to 23.11.1981 Ex.P.25 Index of lands dated 17.12.1981 23 O.S.No.26708/2011 Ex.P.26 Form No.24 dated 06.01.1981 Ex.P.27 Record of rights dated 17.12.1981 Ex.P.28 9 Photographs Ex.P.29 Sketch Ex.P.30 Revised Master Plan for BDA2031 (Draft) DoddanekkundiWhite fieldB2 Ex.P.31 Revised Master Plan for BDA2031 (Draft) DoddanekkundiWhite fieldA2 Ex.P.32 2 Photographs Ex.P.33 3 Photographs LIST OF WITNESS EXAMINED FOR DEFENDANT:
DW1 S.H.Chandra Mohan LIST OF DOCUMENTS MARKED FOR DEFENDANT:
Ex.D.1 : Complaint dtd.08.09.2010
Ex.D.2 : Notice dtd.18.11.2010
Ex.D.3 : Notice dtd.20.10.2010
Ex.D.4 : Notice dtd.13.01.2011
Ex.D.5 : Notice dtd.18.01,2011
Ex.D.6 : Notice dtd.30.09.2011
Ex.D.7 : Village Map
Ex.D.8 : Bangalore Revised Master Plan 2015
(White field)
Ex.D.9 : Gazette Notification
(MOHAMMED MUJEER ULLA C.G.)
LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75) 24 O.S.No.26708/2011 PRONOUNCED IN THE OPEN COURT, VIDE SEPARATE JUDGMENT Plaintiff's suit is partly decreed.
Defendants, their men, agents, representatives and whomsoever on their behalf are restrained from forming road in the suit property, otherwise than in due course of law.
No order as to costs.
Draw Decree Accordingly.
(MOHAMMED MUJEER ULLA C.G.) 25 O.S.No.26708/2011 LXXIV Addl. City Civil & Sessions Judge Mayohall Unit, City Civil Court Bengaluru. (CCH - 75)