Bangalore District Court
M/S Uttara Kannada Sangha vs Bangalore Development Authority on 6 November, 2015
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR,
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge.
Dated this the 6th day of November 2015
PLAINTIFF: M/s Uttara Kannada Sangha,
Bangalore
(A society registered under the
Karnataka Societies Act, 1960)
Having office at the C.A.Site
Uttara Kannada Sangha,
Nandini Layout, Bangalore.
Represented by its Secretary
Sri L.K.Naik.
[By Sri Dinesh Gaonkar, Advocate]
/v e r s u s/
DEFENDANTS: 1. Bangalore Development Authority,
T.Chowdaiah Road,
Kumara park West,
Bangalore-560 020.
Represented by its Commissioner
2. Bruhat Bangalore Mahanagara
Palike
N.R.square,
Bangalore-560 002.
Represented by its Commissioner.
2 CT0028_O.S._6015_2010_Judgment_
.
3. The Director General of Police And Commandant General, Home Guards and Director of Civil Defence Fire and Emergency Services No.1, Annaswamy Mudaliar Road, Ulsoor, Bangalore.
4. The Principal Secretary, Government of Karnataka, Department of Urban Development, Vikasa Soudha, Bangalore-560 001.
D1- By Sri DSS, Advocate D2- By Sri NVV, Advocate D3, D4- By District Government Pleader Date of institution of the : 25/8/2010 suit Nature of the suit : For declaration and injunction Date of commencement of : 24/3/2012 recording of the evidence Date on which the : 6/11/2015 Judgment was pronounced.
: Year/s Month/s Day/s Total duration 5 2 6 (S.H. Hosagoudar) XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against defendant for the relief of declaration that plaintiff is entitled to 3 CT0028_O.S._6015_2010_Judgment_ .
minimum of 40 feet access to the public road for ingress and egress and vehicular movements of its members, general public to the Schedule 'A' property either in terms of lease agreement dated 16/3/1998 and possession certificate dated 25/5/1998 given by defendant no.1 and consequently mandatory injunction directing the defendant no.1, 2 and 4 to restore the party meters access of Schedule 'A' property of plaintiff to a public road either by removing the obstructions Schedule 'C' on the eastern side of the Schedule 'A' property or by removing obstruction schedule 'D' on the schedule 'B' access of necessity and also for mandatory injunction against defendants 1, 2, and 4 directing them their agents to permit the use of schedule 'B' access of necessity by the plaintiff, its member, beneficiary to Schedule 'A' property by removing undoing all obstruction at schedule 'D' caused due to digging developmental activity undertaken by defendant no.3 on schedule 'B' until defendant no.1, 2 and 4 comply and restore 4 CT0028_O.S._6015_2010_Judgment_ .
access of plaintiff as prayed at relief (b) above and for Permanent Injunction restraining defendants 1 to 3 from digging putting up construction or undertaking development of any kind obstruction of the use of schedule 'B' access of necessity as a road until defendant no.1, 2 and 4 provide access to the plaintiff from the Schedule 'A' property so as to reach public road as declared at (a) above.
2. In brief, the plaintiff's case is as under:
The plaintiff M/s Uttrakannada Sangha Bangalore is a society registered under Karnataka Societies Act, 1960 vide certificate of registration No. 43/1997-98 having its previous registrar officer at Bashyam Circle, Rajaji Nagar, Bangalore now at CA site, Nandini Layout, Bangalore represented by its Secretary. The plaintiff is a Society formed to pursue and encourage all the activities that are necessary for the promotion of cultural, social science, literature, fine arts, celebrate festivals, functions, advancement of education by rendering financial assistance to the 5 CT0028_O.S._6015_2010_Judgment_ .
needee and poor and provide guidance facilitate for official employment, business industrial housing and economic development to the Uttara Kannadigas coming to Bangalore and general public without any discrimination of caste, creed or religion. That plaintiff was allotted as Civic Amenity Site in Nandini Layout, SFHS Layout, measuring 570 square meters vide resolution of Bangalore Development Authority No. 181/97 dated 28/7/91 and allotment letter No. BDA / DS-II/CA/NDL/97-98 dated 1/9/97. The Bangalore Development Authority executed registered CA site lease agreement under Bangalore Development Authority [Allotment of Civic Amenities Site] Rules 1989 on 16/3/98. Thereafter, plaintiff was put in possession certificate dated 25/5/98 and society has taken possession of the civic amenity site. The schedule of the civic amenity site allotted leased and put in possession of the plaintiff society. The plaintiff has paid entire premium and lease of the schedule property to the plaintiff is for a period of 30 years. 6 CT0028_O.S._6015_2010_Judgment_ .
Immediately after lease agreement plaintiff has undertaken and put up the construction of the building as per sanction plan consisting of basement, ground floor for carrying out the socio culture and other activities of the society for making its objectives. Plaintiff Sangha has been organizing and celebrating various festivals like Ganesha Chathurthi, Deepavali, Rajyotsava, Ugadi etc., every year. Plaintiff is herewith produced extract of the copy of development plan submitted by the Assistant Executive Engineer, SFHS sub division, Nandini Layout, Bangalore Development Authority, Bangalore to the society at the time of entering the lease agreement and putting the plaintiff in possession. The said plan shows the Schedule 'A' property, CA site as having access from the 40 feet inner circular public road along with eastern boundary. The suit sketch prepared from the extract of the copy of the development plan of defendant n o.1 is produced and also access for the better enjoyment Schedule 'A' property by the plaintiff, its member, 7 CT0028_O.S._6015_2010_Judgment_ .
beneficiaries was from the adjoining vacant space on the northern side of this CA site as shown as park, Bangalore Development Authority [schedule B] which leads to the outer circular public road and with western side. Plaintiff Sangha is having access to the Schedule 'A' property from eastern side along with boundary of Schedule 'A' property adjoining 40 feet inner circular public road and northern side through the 40 feet mud road in the vacant space earmarked for park in the development plan of the Bangalore Development Authority which leads to the public road on the western side. The above two are the only roads /access available for general public members of plaintiff, and beneficiary of the plaintiff for ingress and egress to the plaintiff, its properties in the Schedule A for carrying out its activities including vehicular movement. These two accesses have been in use from the past more than 12 years. Plaintiff submits that access provided from the eastern side along with CA site from 40 feet public inner circular road was 8 CT0028_O.S._6015_2010_Judgment_ .
abruptly illegally without notice obstructed and cut off by erection of fence surrounding public inner circular road by the defendant no.2 in November 2006. Inspite of representation given by the plaintiff, no action was forthcoming from defendant no.1 except stating that defendant would look into the matter. As per terms of lease agreement, possession certificate and allotment and development plan of defendant no.1 the plaintiff has been given access to the Schedule A CA site through the 40 feet inner public circular road along with eastern boundary of Schedule A site for carrying out its activities. The fencing of outer margin of the 40 feet inner public road by defendant no.2 has totally obstructed the ingress and egress for access to the plaintiff. When matter was asked to be resolved the defendant no.1 assured resolution and until such time permitted the plaintiff and public to use access along the northern side of Schedule A in vacant space earmarked as a park in the development plan of the defendant no.1 as access is about 40 feet in width and 9 CT0028_O.S._6015_2010_Judgment_ .
runs East to West along with northern boundary of the plaintiff Schedule A and finally opens into the western side outer circular public road described in Schedule B property.
Plaintiff submits that plaintiff has been first of the allottees of Civic Amenity site from defendant no.1 planning and development authority in the vicinity on the western side of 40 feet inner public road, SFHS Nandini Layout, Bangalore. The respondent No.3 was later allotted a civic amenity site for its fire station on the northern side of plaintiff's CA site after space earmarked as a park by defendant no.1.
Plaintiff contended that during November 2006 there was obstruction caused to the access from 40 feet public inner circular road by the second defendant by erecting fence. Therefore, plaintiff made representation on 9/11/2006. But, it was assured that they will provide the access to the plaintiff's Schedule 'A' property. So also, there was closure of other access. Even plaintiff took matter to defendants 10 CT0028_O.S._6015_2010_Judgment_ .
1 and 2 by submitting representation on 27/10/2007 and 29/10/2009. The plaintiff is the allottee of civic amenity site and has got right to have an access to Schedule 'A' property. Plaintiff further submits that, second week of August 2010, defendant no.3 along with staff of defendant no.1 undertook demarcation of CA site and also did marks for digging the ground to have a construction. Certain iron rods were also put on the markings. This act of the defendants is illegal as site is to be used for the civic amenity. There is no sanction plan obtained by defendant no.3. But, defendant no.3 is encroaching Schedule B road used by plaintiffs. As per development plan, this property is reserved for park. The plaintiffs are apprehending total loss of access to Schedule 'A' property, because of these obstruction caused by defendants 1 to 3, plaintiff issued notice to the third defendant. But, there is no proper response. There is a total violation of development plan by defendants 1 to 4. Plaintiff is entitled to use the road as per terms of lease 11 CT0028_O.S._6015_2010_Judgment_ .
agreement dated 16/3/98 and possession certificate dated 25/5/88 issued by defendant no.1. Hence, this suit.
3. In response to suit summons issued by the Court, defendants 1 to 4 appeared through their counsel and defendant no. 1 to 3 filed separate written statement, whereas defendant no.4 has not filed any written statement. In brief, the contents of the written statement filed by defendant no.1 are as under:
The plaintiff was using the way to the layout sketch to the CA site since 16/3/98 till date i.e., for the past 13 years and he cannot make fresh claim for a fresh road other than the way shown in the layout sketch. Mandatory injunction cannot be claimed against defendants 1 & 4. Since property fully acquired and vested with Government/Bangalore Development Authority, the plaintiff claim has not been justified for asking a fresh note when there is an existing road as per layout map. Moreover, plaintiff 12 CT0028_O.S._6015_2010_Judgment_ .
has accepted the contract on 16/3/88 and it is concluded contract. The plaintiff cannot restrain defendants 1 & 4 by an injunction and not to take up any construction activity in their land which is against the concept of natural justice. The plaintiff has not issued statutory notice as required under the provisions of law. On these grounds defendant no.1 prays for dismissal of the suit.
4. In brief, the contents of the written statement filed by defendant no.2 are as under:
The plaintiff is not entitled for the relief of declaration, mandatory injunction and also Permanent Injunction in respect of suit schedule property. The suit of the plaintiff is not at all maintainable for the relief of declaration and for the alleged easementary right in view of the allegations made in the plaint that the cause of action for the suit arose in the month of November 2006 and the suit of the plaintiff is barred under the provisions of Limitation Act. It is submitted that since there was a 13 CT0028_O.S._6015_2010_Judgment_ .
complaints from the Senior Citizens regarding nuisance and also to avoid illegal activities road was closed in the year 2006 by putting up chain link fencing around the circular park and as such the access to CA site was closed. It is further submitted that, on the northern side of CA site of the plaintiff, there is another CA site allotted to the third defendant by the Bangalore Development Authority and said site was vacant till recently even without a compound wall. Now, third defendant has started construction activities on their site. In view of the changed circumstances, this defendant is ready to give access to the plaintiff's CA site on the eastern side width passage as per size of the CA site in the particular side. The plaintiff has not issued any prior notice as required under Karnataka Municipal Corporation Act, 1976. On these grounds, second defendant prays for dismissal of the suit.
5. In brief, the contents of the written statement filed by defendant no.3 are as under:
14 CT0028_O.S._6015_2010_Judgment_ .
This defendant submits that Bangalore Development Authority in his order No. 107/94 dated 16/4/84 has allotted CA site measuring about 1682.75 square meters on lease basis to the third defendant and same has been registered on 6/9/2006, and Bangalore Development Authority has granted possession certificate also for the above said CA site allotted to the third defendant and since from the allotment third defendant is in possession of the above said CA site. It is submitted that, the question of any mud road or part to the northern side of the plaintiff's property does not arise at all. The defendant no.3 was allotted a civic amenity site for its fire station and quarters on northern side of the plaintiff's CA site. The plaintiff property is having access to their property from 40 feet inner circular public road along with eastern boundary as stated by the plaintiff himself in the plaint and there is no access to the plaintiff Schedule 'A' property from third defendant CA site and plaintiff does not have any right to claim any 15 CT0028_O.S._6015_2010_Judgment_ .
access to their property from any other property which is adjacent to their site. The plaintiff got site allotted to them in the year 1998 after the site allotted to the third defendant and his site has got own access and if road is blocked due to plaintiff Sangha's nuisance by the second defendant because of the complaint given to them by the Senior citizen of the locality. It is for the plaintiff to approach concerned authority and clear the road which has been blocked by second defendant. Plaintiff is not entitled for the any relief against defendant no.3. On these grounds, defendant no.3 prays for dismissal of the suit.
6. On the basis of the pleadings of the parties, my predecessor in the office has framed the following issues:
(1) Whether the plaintiff proves that it has got right to access for ingress and egress and vehicular movements of his members, beneficiaries, general publics to the Schedule 'A' property in terms of lease agreement dated 16/3/1998 and possession certificate dated 16 CT0028_O.S._6015_2010_Judgment_ .
25/5/1998 issued by defendant no.1 as easement of necessity as alleged in the plaint?
(2) If so, whether the plaintiff further proves that defendants 1, 2 and 4 are causing obstructions by putting obstacles in the said public road i.e., towards eastern side schedule C property as alleged in the plaint ?
(3) Whether the plaintiff further proves that because of his obstructions, defendants are depriving rights of the plaintiff in making use of the said road to reach Schedule 'A' property as alleged in the plaint?
(4) Whether the plaintiff further proves that defendants no.1 to 3 are trying to dig the foundation and put up construction in the Schedule 'B' property so as to cause obstruction to the plaintiff in making use of the said road as alleged in the plaint?
(5) Whether plaintiff is entitle for the relief of declaration as made?
(6) Whether plaintiff is entitle for relief of mandatory injunction as prayed?
17 CT0028_O.S._6015_2010_Judgment_ .
(7) Whether plaintiff is entitle for the relief of perpetual injunction as prayed?
(8) What order or decree?
7. In this case, plaintiff in order to prove its case, got examined its Secretary as PW.1 and produced in all 42 documents which are marked as Ex.P1 to Ex.P42 and closed its side of evidence. On the other hand, the Chief Fire Officer of defendant no.3 examined as DW.1 and produced in all 17 documents which are marked as Ex.D1 to Ex.D17 and closed his side of evidence.
8. Heard arguments for plaintiff and perused entire records of the case. At the time of arguments, defendants and their counsel were absent and not addressed any arguments. Hence, taken as no arguments for defendants.
9. My findings on the above issues and additional issues are as under:
Issue No. 1) ............ In the affirmative; Issue No. 2) ............ In the affirmative; 18 CT0028_O.S._6015_2010_Judgment_ .
Issue No. 3) ............ In the affirmative; Issue No. 4) ............ In the negative; Issue No. 5) ............ In the affirmative; Issue No. 6) ............ Partly in the affirmative; Issue No. 7) ............ In the affirmative; Issue No. 8) ............ As per final order for the following:
10. ISSUE 1: It is the case of plaintiff Sangha that it has got right to access for ingress and aggress and vehicular movements of its members, beneficiaries, general public to the Schedule 'A' property in terms of agreement dated 16/3/1998 and possession certificate dated 25/5/1998 issued by defendant no.1 as a easement of necessity.
11. In this case, defendants 1 to 4 appeared through their respective counsel and defendants 1 to 3 filed separate written statement. Defendant no.1 has denied the case of plaintiff and contended that, plaintiff cannot make a fresh claim for fresh road other than the way shown in the sketch. Defendant 19 CT0028_O.S._6015_2010_Judgment_ .
No.2 in its written statement admitted that, plaintiffs are in possession of schedule property having access to Schedule 'A' property towards eastern and northern side as stated by the plaintiff and those roads are the only roads access to the Schedule 'A' property for ingress and egress of the plaintiff Sangha and the same was made use by the plaintiffs to their CA site from eastern side along with boundaries.
12. Defendant no.3 in its written statement denied the case of the plaintiff and contended that, plaintiff got the site allotted to them in 1998 after the site allotted to defendant no.3 in the year 1994 and each site has got their own access and plaintiff cannot claim any road belonging to defendant no.3. If road is blocked to the plaintiff Sangha it is for the plaintiff to claim necessary road from the concerned authority and plaintiff has no right to claim any access to its property from the site allotted to defendant no.3. 20 CT0028_O.S._6015_2010_Judgment_ .
13. In this case, plaintiff Sangha examined its Secretary as PW.1. He filed affidavit evidence in lieu of his examination-in-chief. In his examination-in-chief he reiterated the plaint averments. He produced in all 42 documents which are marked as Ex.P1 to Ex.P42. In the cross-examination he admitted that, towards their building there exist road and park. He had further admitted that Bangalore Development Authority has allotted to site to the plaintiff Sangha in the year 1998. He further stated that, he do not know that schedule B so described in the schedule annexed to the plaintiff belongs to defendant no.3.
14. In this case, defendant no.3 got examined its Chief Fire Officer as DW.1. He filed affidavit evidence in lieu of his examination-in-chief. In his examination-in-chief he reiterated the contention taken in the written statement. He produced in all 17 documents which are marked as Ex.P1 to Ex.P17. In the cross-examination he admitted that, while filing 21 CT0028_O.S._6015_2010_Judgment_ .
the suit, the inner circular road shown in Ex.P8 in yellow colour was blocked by fencing. He further stated that it was closed subsequently by Bangalore Development Authority due to some problems.
15. I have perused the entire oral and documentary evidence adduced by both the parties. In this case, has produced lease agreement dated 16/3/1998 which is marked as Ex.P6. Further, plaintiff also produced possession certificate dated 25/5/1998 which is marked as Ex.P7. On perusal of Ex.P6 and Ex.P7, it is much clear that, plaintiff has got right to access for ingress and egress to the Schedule 'A' property towards eastern side of their property. Further, evidence on record clearly shows that the suit schedule property was granted to plaintiff Sangha by the Bangalore Development Authority on lease for a period of 30 years. Further evidence on record clearly shows that plaintiff Sangha after allotment of its site it has constructed building 22 CT0028_O.S._6015_2010_Judgment_ .
for carrying out its cultural, social and other activities. From the evidence on record it is much clear that, plaintiff Sangha is having right to access for ingress and egress to its Schedule 'A' property from eastern side of its property as per lease agreement dated 16/3/1998 and as per possession certificate dated 25/5/1998 issued by defendant no.1. It is pertinent to note that defendant no.2 who is Bruhat Bengaluru Mahanagara Palike in para no.9 of its written statement clearly admitted that, plaintiffs are in possession of the schedule property having access to the Schedule 'A' property towards eastern and northern side as stated by the plaintiff and those roads are only roads access to the Schedule 'A' property for ingress and egress of the plaintiff Sangha and same was made use by the plaintiff to their CA site from eastern side along with boundaries. Further, defendant no.2 in its written statement contended that, since there was a complaints from the senior citizens and public regarding nuisance and to avoid 23 CT0028_O.S._6015_2010_Judgment_ .
illegal activities, same was closed in the year 2006 by putting up a chain link fencing all around the circular park and as such access to the CA site was closed.
16. From the written statement of the defendant no.2 it is much clear that plaintiffs are in possession of suit schedule property having access to the Schedule 'A' property towards eastern and northern side and those roads are only roads access to the Schedule 'A' property for ingress and egress of the plaintiff Sangha and the same was made use by the plaintiff to their CA site from eastern side along with boundaries.
17. DW.1 in his cross-examination clearly admitted that while filing the suit, inner circular road shown in Ex.P8 in yellow colour was blocked by fencing and it was closed subsequently by Bangalore Development Authority due to some problems. Hence, on perusal of the entire oral and documentary evidence adduced by both the parties, it is much clear 24 CT0028_O.S._6015_2010_Judgment_ .
that plaintiff Sangha has got right to access for ingress and egress and vehicular movements of its member, beneficiaries, general public to the Schedule 'A' property in terms of lease agreement dated 16/3/1998 and possession certificate dated 25/9/1998 issued by defendant no.1 as a easement of necessity. Plaintiff proved issue no.1. Accordingly, I answer issue no.1 in the affirmative.
18. ISSUE NO.2 AND 3: Now, I will consider both these issues together as they are interconnected with each other and for brevity.
19. Plaintiff contended that defendant no.1, 2 and 4 are causing obstruction by putting obstacles to the public road towards eastern side of Schedule 'C' property and because of this obstruction, defendants are depriving the right of plaintiff in making use of the said road to each Schedule 'A' property. While answering issue no.1, it is held that plaintiff has got right to access for ingress and egress to the Schedule 25 CT0028_O.S._6015_2010_Judgment_ .
'A' property in terms of lease agreement and possession certificate issued by defendant no.1 as easement of necessity.
20. It is pertinent to note that in this case defendant no.2 who is Bruhat Bengaluru Mahanagara Palike in para no. 9 of written statement clearly admitted that, plaintiff Sangha is having access to the Schedule 'A' property towards eastern and northern side. Further, defendant no.2 admitted that, plaintiff Sangha was made use of the roads for ingress and egress to their CA site from eastern side. Further, defendant no.2 in its written statement clearly admitted that, since there was a complaint from the senior citizen and public regarding nuisance and to avoid illegal activities same was closed in the year 2006 by putting up a chain link fencing all around the circular part and as such access to the CA site was closed. Hence, the contention of the defendant no.2 itself clearly shows that even though plaintiff Sangh is 26 CT0028_O.S._6015_2010_Judgment_ .
having access to the Schedule 'A' property for ingress and egress but written statement of defendant no.2 itself clearly shows that it has closed said road in the year 2006 by putting up chain link fencing all around the circular park and as such access to the CA site of plaintiff was closed.
21. DW.1 also in his cross-examination clearly admitted that, while filing the suit, the inner circular road shown in Ex.P8 in yellow colour was blocked by fencing. He further stated that it was closed subsequently by Bangalore Development Authority due to some problem. Hence, the above evidence of DW.1 also clearly shows that defendant no.2 has closed the access to the plaintiff property by blocking the same even though plaintiff has got right to access for ingress and egress to its property. Hence, from the evidence on record it is much clear that, defendant no.1, 2 and 4 are causing obstruction by putting obstacle to the public road towards eastern side of the 27 CT0028_O.S._6015_2010_Judgment_ .
Schedule 'C' property and because of this obstruction now plaintiff Sangha is facing difficulty to reach its property due to blockage of road. Plaintiff proved that defendants 1, 2 and 4 are caused obstruction for using the road as per terms of lease agreement and possession certificate by the plaintiff Sangha. Plaintiff proved issues no. 2 and 3. Accordingly, I answer issues 2 and 3 in the affirmative.
22. ISSUE NO.4: Plaintiff contended that defendants 1 to 3 are trying to dig foundation and put up construction in the Schedule 'B' property so as to cause obstruction to the plaintiff in making use of the road to reach its property. In this case, defendant no.3 has denied the case of the plaintiff. Defendant no.3 contended that, Bangalore Development Authority has allotted site on lease basis for its fire station and quarters on the northern side of the plaintiff's CA site. Defendant no.3 further contended that, Bangalore Development Authority also allotted site to the 28 CT0028_O.S._6015_2010_Judgment_ .
plaintiff's Sangha and each site is having access to their property from 40 feet inner circular public road along with eastern boundary. Defendant no.3 further contended that plaintiff got site allotted to them in 1998 whereas defendant no.3 was allotted to site in the year 1994 by the Bangalore Development Authority and each site has got their own access and if the road is blocked, it is for the plaintiff to approach concerned authority and plaintiff Sangha has no right to claim any access to their property from northern side which has been allotted to the defendant no.3.
23. In this case plaintiff Sangha got examined its Secretary as PW.1. In his evidence he deposed that, defendant no.1 to 3 are trying to dig the foundation ad put up construction in the Schedule 'B' property so as to cause obstruction to the plaintiff in making use of road. In the cross-examination he has stated that he do not know that Schedule 'B' property so described 29 CT0028_O.S._6015_2010_Judgment_ .
in the schedule annexed to the plaint belongs to the defendant no.2.
24. In this case, defendant no.3 got examined its Chief Fire Officer as DW.1. In his cross- examination he admitted that, Bangalore Development Authority ad Bruhat Bengaluru Mahanagara Palike have blocked the road by pubic pressure. He denied that, after blocking of road, the plaintiff was using western area as a road due to necessity. He furter stated that, it was used temporarily.
25. I have perused entire oral and documentary evidence adduced by both the parties. From the evidence on record it is much clear that on the northern side of CA site of plaintiff, there is a another CA site allotted to te third defendant by the Bangalore Development Authority. Further, evidence on record clearly shows that said site was vacant till recently even without a compound wall. Further, evidence on 30 CT0028_O.S._6015_2010_Judgment_ .
record clearly shows tat now third defendant has started constructional activities in their site.
26. In this case, DW.1 has produced lease deed, possession certificate, katha certificate, tax paid receipt, sketch, request letter, photographs, letter of the government ad legal notice which are marked as Ex.D1 to Ex.D17. On perusal of the documents produced by defendant no.3, it is much clear that Bangalore Development Authority has allotted site no. 4 in favour of defendant no.3 on 16/4/1994 with measurement about 1682.75 square meters on lease basis and also granted possession certificate for the above said site. Further, documents produced by the defendant no.3 shows that Bangalore Development Authority has allotted sites to the plaintiff and also to defendant no.3 and every Bangalore Development Authority site will be having their own access to their sites. So also, the plaintiff's property is having access to their property from 40 feet inner circular public 31 CT0028_O.S._6015_2010_Judgment_ .
road along with eastern boundary and there is no access to the Schedule 'A' property from defendant no.3's CA site and plaintiff does not have any right to claim any access to their property from the other property which is adjacent to the site of the defendant no.3. Therefore, plaintiff cannot claim any right or access to their property from other schedules which he has mentioned in the plaint. Further, evidence on record clearly shows that plaintiff got the site allotted to them in the year 1998 after the site allotted to the defendant no.3 in the year 1994. Further, evidence on record clearly shows that defendant no.2 has blocked the plaintiff's road since there was complaints from the senior citizens and public regarding nuisance and also to avoid illegal activities. Defendant no.2 in his written statement clearly admitted that, since there was a complaint from the senior citizens and public regarding nuisance and also to avoid illegal activities it has closed the road in the year 2006 by putting up chain link fencing all around the circular park and as 32 CT0028_O.S._6015_2010_Judgment_ .
such the access to the CA site was closed. Hence, from the evidence on record it is much clear that defendant no.2 has closed the road which was used by plaintiff.
27. The evidence on record clearly shows that Bangalore Development Authority has allotted sites to defendant no.3 and now defendant no.3 is undertaking construction activities in its site. Further defendant no.3 also made marking for digging the land to put up the pillars so as to undertake construction of their fire station building and staff quarters in their site and defendant no.3 has not encroached the plaintiff's site nor dumped the any construction material on their property. The evidence on record clearly shows that eastern side of the plaintiff property is blocked by defendant no.2 but not by defendant no.3. The evidence on record clearly shows that defendant no.3 is carrying on construction activities in its site legally. Under such circumstances, 33 CT0028_O.S._6015_2010_Judgment_ .
it cannot be said that defendant no.3 is digging the foundation and put up construction in Schedule 'B' property illegally so as to cause obstruction to the plaintiff in making use of the road by the plaintiffs. Plaintiff failed to prove issue no.4. Accordingly, I answer issue no.4 in the negative.
28. ISSUE NO. 5 TO 7: Now, I will consider both these issues together as they are interconnected with each other and for brevity.
29. IN THIS CASE plaintiff; sought for the relief of declaration that plaintiff is entitled to minimum of 40 feet access to the public road for ingress and egress and vehicular movement of its members, beneficiaries, general public to the schedule A property either in terms of lease agreement dated 16.3.1998 and possession certificate dated 25.5.1998 given by defendant No.1. While answering issue No.1 it is held that plaintiff has got right to access for ingress and egress and vehicular movement of its 34 CT0028_O.S._6015_2010_Judgment_ .
members, general public to the schedule A property in terms of lease agreement dated 16.3.1998 and possession certificate dated 25.5.1998 issued by defendant No.1 as easement of necessity. It is pertinent to note that, in its written statement clearly admitted that plaintiffs are in possession of the schedule property having access to the A schedule property towards eastern and northern side and those roads are the only roads access to the A schedule property for the ingress and egress of the plaintiff Sangha and same was made use by the plaintiffs to their CA site from eastern site. Hence, from the evidence on record it is much clear that plaintiffs have accesses for ingress and egress to the schedule A property. Therefore, plaintiff is entitled for the relief of declaration that plaintiff is entitled to a minimum of 40 feet access to public road for ingress and egress and vehicular movements of its members and general public to the schedule A property in terms of lease 35 CT0028_O.S._6015_2010_Judgment_ .
agreement dated 16.3.1998 and possession certificate dated 25.5.1998.
30. In this case plaintiff also consequently sought for mandatory injunction directing the defendants 1, 2 and 4 to restore 40 meters access to the schedule A property of the plaintiff by removing obstruction schedule C on the eastern side of the schedule A property. While answering issue No.2 and 3 it is held that, defendants 1, 2 and 4 are causing obstruction by putting up obstacles in the public road towards eastern side of the schedule C property and because of this obstruction defendants are depriving the right of the plaintiff in making use of the road to reach schedule 'A' property.
31. It is pertinent to note that defendant no.2 in its written statement admitted that, the road used by the plaintiff was closed in the year 2006 by putting up chain link fencing all around the circular park since there was a complaints from the senior citizens 36 CT0028_O.S._6015_2010_Judgment_ .
and public regarding nuisance. Hence, from the written statement of defendant no.2, it is much clear that defendant no.2 has blocked road causing obstruction to the plaintiff to reach Schedule 'A' property. It is also important to note that defendant no.2 in its written statement contended that now third defendant has started construction activities in their site and in view of the changed circumstances, defendant no.2 is ready to give access to the plaintiff's CA site on the eastern side width passage as per size of the CA site in the particular side. Hence, from the evidence on record it is much clear that defendant no.2 has blocked the access to the plaintiff's property and defendant no.2 is admitted to give access to the plaintiff's CA site on the eastern side. Therefore, plaintiff is entitled for the relief of mandatory injunction directing the defendants 1, 2 and 4 to restore 40 meters access of the Schedule 'A' property of the plaintiff to a public road by removing 37 CT0028_O.S._6015_2010_Judgment_ .
obstruction schedule C on the eastern side of the Schedule 'A' property.
32. In this case plaintiff also sought for mandatory injunction directing the defendant no.1, 2 and 3 directing them to permit the use of schedule B access of necessity by the plaintiffs by removing undoing all obstruction at schedule D caused due to digging developmental activity undertaken by defendant no.3 on schedule B until defendant no.1, 2 and 4 comply and restore access of the plaintiff as prayed at relief (b) above.
33. While answering issue no.4, it is held that, defendant no.3 is digging foundation and put up construction in the Schedule 'B' property which is belongs to defendant no.3 and also held that defendant no.3 is putting up construction legally by obtaining necessary sanction plan. The evidence on record clearly shows that Bangalore Development Authority has allotted sites to the defendant no.3 in 38 CT0028_O.S._6015_2010_Judgment_ .
the year 1994 and defendant no.3 was allotted a civic amenity site for its fire station and quarters on the northern side of plaintiff's CA site. Evidence on record clearly shows that said site has been allotted to defendant no.3 to establish fire station and quarters and defendant no.3 is the absolute owner of the said site. The plaintiff has no right whatsoever on the site granted to the defendant no.3. Further, plaintiff cannot claim any right or access to their property from the property allotted to the defendant no.3. The evidence on record also clearly shows that plaintiff Sangha has no right to claim any access to their property from northern side which has been allotted to defendant no.3.
34. Further evidence on record clearly shows that now defendant no.3 took up construction in their allotted CA site and undertook the demarcation of the boundary of the CA site no.4 which has been already allotted to defendant no.3 and they are making for 39 CT0028_O.S._6015_2010_Judgment_ .
digging the land to put up pillars and to construct fire station building and staff quarters in their site. Further, evidence on record clearly shows that defendant no.3 has not encroached plaintiff's property nor dumped any construction material on their property. No doubt, evidence on record clearly shows that access to the plaintiff's property is blocked from eastern side and defendant no.2 has undertaken to provide access to the plaintiff's CA site on the eastern side width passage as per size of CA site in the particular side.
35. Hence, from the evidence on record it is much clear that defendant no.3 is carrying construction activities legally in its site and it has not illegally putting up any construction. Therefore, plaintiff is not entitled for the relief of mandatory injunction against defendant no.3 to permit the plaintiff to use the schedule B property to reach their Schedule 'A' property.
40 CT0028_O.S._6015_2010_Judgment_ .
36. In this case, plaintiff also sought for relief of Permanent Injunction restraining the defendant no.1 to 3 from putting up construction or undertaking development of any kind obstructing the use of schedule B access of necessity as a road until defendant no.1, 2 and 4 provides access to the plaintiff to the Schedule 'A' property so as to reach public road as described at (a) above. While answering issue no.1, it is held that plaintiff is entitled to minimum of 40 feet access to the public road for ingress and egress to the Schedule 'A' property.
37. Further, it is also held that plaintiff is entitled for mandatory injunction directing defendants 1,2 and 4 to restore 40 meter access to the Schedule 'A' property of the plaintiff to public road by removing obstruction at Schedule C on the eastern side of the Schedule 'A' property.
38. It is pertinent to note that admittedly defendant no.2 has blocked the road in the year 2006 41 CT0028_O.S._6015_2010_Judgment_ .
by putting up chain link fencing all around the circular park and as such access to the CA site of the plaintiff was closed. Further, defendant no.2 in its written statement clearly admitted that it is ready to give access to the plaintiff's CA site on the eastern side width passage as per size of CA site in particular size.
39. The evidence on record clearly shows that plaintiff is using northern side through the 40 feet mud road in the vacant space earmarked for the park in the development plan of Bangalore Development Authority which leads to the public road on the western side i.e., Schedule 'B' property. Admittedly, the defendant no.2 has blocked eastern side road of the plaintiff's property. Now, the plaintiff Sangha has no access to Schedule 'A' property. It is pertinent to note that when plaintiff Sangha is provided with CA site for the purpose of conducting its activities, the defendant no.2 is supposed to cause any obstruction 42 CT0028_O.S._6015_2010_Judgment_ .
to the plaintiff. As already stated defendant no.2 is ready to give access to the CA site of the plaintiff on the eastern side to the plaintiff.
40. Therefore, until defendant no.2 will provide access to the plaintiff Sangha to reach their site, it is just and proper to restrain defendant no.1 to 3 from putting up any construction or undertaking development of any kind obstructing the use of schedule B property by the plaintiff to reach their Schedule 'A' property. Therefore, plaintiff is entitled for the relief of Permanent Injunction restraining the defendants 1 to 3 from digging and putting up any construction to use of Schedule 'B' property by the plaintiff to reach their property until defendant no.1, 2 and 4 provides suitable access/ road to the plaintiff.
41. It is pertinent note that Schedule 'B' property is exclusively belongs to defendant no.3 and defendant no.3 has got every right to enjoy its property since it was allotted by Bangalore 43 CT0028_O.S._6015_2010_Judgment_ .
Development Authority to the defendant no.3. But, evidence on record clearly shows that as defendant no.2 has blocked the road on the eastern side of the plaintiff's property during the year 2006, thereafter plaintiff is making use of Schedule 'B' property to reach their property as a easement of necessity. The evidence on record clearly shows that since Schedule 'B' property was a vacant site, the plaintiff has been using the said property to reach their property as a easement of necessity since defendant no.3 has not taken any construction activity till recently. No doubt, defendant no.3 is absolute owner of Schedule 'B' property. But, defendant no.3 also allowed the plaintiff to use Schedule 'B' property after defendant no.2 closed eastern side of the Schedule 'A' property.
42. The evidence on record clearly shows that now except Schedule 'B' property, there is no other way to the plaintiff to reach their property. Hence, it is easement of necessity to the plaintiff to use Schedule 44 CT0028_O.S._6015_2010_Judgment_ .
'B' property until defendant no. 1, 2 and 4 provides suitable access to the plaintiff to reach their Schedule 'A' property. Hence, injunction granted against defendant no.3 will be in force till defendants 1 , 2 and 4 provides a suitable access or road to the plaintiff to reach their property. Therefore, plaintiff is entitled for the relief of declaration and mandatory injunction as stated above. Accordingly, I answer issue no. 5 to 7.
43. ISSUE NO.8: From my above discussion and reasoning, the suit of the plaintiff deserves to be decreed in part. In the result, I proceed to pass the following:
The suit of the plaintiff is hereby decreed in part.
It is declared that plaintiff is entitled to minimum of 40 feet access to a public road for ingress 45 CT0028_O.S._6015_2010_Judgment_ .
and egress and vehicular movements of its members and general public to the Schedule 'A' property in terms of lease agreement dated 16/3/98 and possession certificate dated 25/5/98.
Consequently, plaintiff is also entitled for the relief of mandatory injunction directing defendants 1, 2 and 4 to restore 40 feet access to the Schedule 'A' property of the plaintiff to a public road by removing obstruction of Schedule 'C' on the eastern side of Schedule 'A' property.
Further, plaintiff is also entitled for the relief of Permanent Injunction restraining the defendants 1 to 3 from digging and putting up any construction to use of Schedule 'B' property by the plaintiff to reach their Schedule 'A' property until defendant no.1, 2 and 4 provides 46 CT0028_O.S._6015_2010_Judgment_ .
suitable access or road to the plaintiff.
The Permanent Injunction granted above will be inforce until defendants 1, 2 and 4 provides suitable access or road to the plaintiff to reach their Schedule 'A' property.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
*** [Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 6th day of November 2015.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Vijay J.Kamat
47 CT0028_O.S._6015_2010_Judgment_
.
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 N.U.Erappa
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Letter given by the plaintiff vendor to give evidence Ex.P 2 Original registration of plaintiff Sangh Ex.P 3 Booklet containing bye-law of plaintiff Sangha Ex.P 4 Original approved plan Ex.P 5 Allotment letter issued by Bangalore Development Authority in the name of plaintiff Sangha Ex.P 6 Certified copy of the lease agreement executed by Bangalore Development Authority Ex.P 7 Possession Certificate issued by the Bangalore Development Authority Ex.P 8 Sketch in respect of suit schedule property Ex.P 9 Office copy of the lelttler dated And 9/11/2006 addressed to BDA Ex.P 10 with acknowledgement Ex.P 11 Another office copy of the letter dated 27/10/2007 addressed to BDA Ex.P 12 Acknowledgement Ex.P 13 Office copy of the similar letter addressed to Bruhath Bangalore Mahanagara Palike Ex.P 14 Office copy of the letter addressed to BBMP dated 29/10/2009 48 CT0028_O.S._6015_2010_Judgment_ .
Ex.P 15 Acknowledgement
Ex.P 16 Office copy of the legal notice
dated 11/8/2010
Ex.P 17 Postal acknowledgement
Ex.P 18
To 12 photographs with CD
Ex.P 30
Ex.P 31 Pamphlet got printed by the
plaintiff with regard to the
Ganesha Festival
Ex.P 32 Encumbrance Certificates in
And respect of the suit schedule
Ex.P 33 property
Ex.P 34
To Photographs
Ex.P 39
Ex.P 40
And CDs
Ex.P 41
Ex.P 42 CDP Blue print issued by BDA
Ex.P 42 (a) Suit schedule property;
Ex.P 42 (b) Park area Ex.P 42 (c) Inner circle road Ex.P42 (d) Outer circle road
4. List of the documents marked for the defendants:
Ex.D1 Attested copy of the lease deed dated 2/9/2006 Ex.D2 Attested copy of Possession Certificate 49 CT0028_O.S._6015_2010_Judgment_ .
Ex.D3 Attested copy of khatha extract Ex.D4 and 2 tax paid receipts Ex.D5 Ex.D6 Eye sketch Ex.D7 Copy of the request letter submitted by plaintiff Sangha Ex.D8 6 photographs with CA site being to allotted Ex.D13 Ex.D14 CD Ex.D15 Attested copy of authorization Ex.D16 Copy of letter issued by the Government of Karnataka dated 22/2/2013 Ex.D17 Copy of the legal notice [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge, BANGALORE.
...Judgment pronounced in the Open Court.... (Vide separate detailed judgment) The suit of the plaintiff is hereby decreed in part.
It is declared that plaintiff is entitled to minimum of 40 feet access to a public road for ingress and egress and vehicular movements of its members and general public to the Schedule 'A' property in terms of lease agreement dated 16/3/98 and possession certificate dated 25/5/98.
Consequently, plaintiff is also entitled for the relief of mandatory injunction directing defendants 1, 2 and 4 to restore 40 feet access to the Schedule 'A' property of the plaintiff to a public road by removing obstruction of Schedule 'C' on the eastern side of Schedule 'A' property.
Further, plaintiff is also entitled for the relief of Permanent Injunction restraining the defendants 1 to 3 from digging and putting up any construction to use of Schedule 'B' property by the plaintiff to reach 52 CT0028_O.S._6015_2010_Judgment_ .
their Schedule 'A' property until defendant no.1, 2 and 4 provides suitable access or road to the plaintiff.
The Permanent Injunction granted above will be inforce until defendants 1, 2 and 4 provides suitable access or road to the plaintiff to reach their Schedule 'A' property.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[S.H.HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
53 CT0028_O.S._6015_2010_Judgment_ .
54 CT0028_O.S._6015_2010_Judgment_ .