Bangalore District Court
O.S./2608/2013 on 18 September, 2017
THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
BANGALORE CITY.
Dated on this the 18th day of September 2017
-: Present :-
Smt. M.Komalatha, B.Sc., LL.B.
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
Original Suit No. 2608/2013
Plaintiff :
Smt. Manjula W/o. Sri.Narayanappa,
43 years, R/o.No.67, (Postal No.),
Western side of property bearing
Municipal No.60/1, 7th Cross,
Chikkathaiappa Road, Vasantha
Nagar, Bengaluru - 560 052.
[By H.R.Sreepada, Advocate]
/ VERSUS /
Defendants :
1. Bruhat Bangalore Mahanagara
Palike, Office of the Commissioner,
Represented by Commissioner.
2. Assistant Revenue Officer, BBMP,
Shivajinagar, Queens Road,
Bengaluru.
[By Sri.K.V.Mohan Kumar, Advocate]
Date of Institution of the suit : 02.04.2013
Nature of suit : Suit for declaration and
permanent injunction
Date of commencement of : 19.12.2013
evidence
Date on which the judgment is : 18.09.2017
pronounced
Years Months Days
Duration taken for disposal : 04 05 16
***
JUDGMENT
This suit is filed by the plaintiff against the defendants seeking declaration that she is the owner of the suit schedule property, she perfected her title over the suit schedule property by way of adverse possession and for the relief of permanent injunction.
2. The case of the plaintiff in brief is as follows :
That, the plaintiff is in possession and enjoyment of the residential house property bearing postal No.67, situated on the western side of the property bearing Municipal No.60/1, 7th Cross, Chikkathayappa Road, Vasanthnagar, Bengaluru, which is the suit schedule property. The plaintiff's mother namely Smt.Sanjeevamma has been residing in the western portion of the suit schedule property bearing Municipal No.60/1, measuring East to West 35 Feet and North to South 21 Feet, being owner of the said property having acquired the same under a registered Gift Deed dated 12.2.1965 from one Siddamma. Said Smt.Sanjeevamma was the foster daughter of Smt.Siddamma W/o.Channappa. Said Smt.Siddamma gifted said property to Smt.Sanjeevamma as she was looking after Smt.Siddamma. Smt.Sanjeevamma was residing in the said house along with her husband and children. Smt.Sanjeevamma constructed the house on the schedule property about 40-50 years ago and put her husband and children in possession of the schedule property. After the death of husband of Smt.Sanjeevamma, who is the father of plaintiff herein, other children have settled down separately. Said Smt.Sanjeevamma constructed the house during 1968. She was vaguely informed by the Corporation office that it was Corporation property and that she could approach competent authority seeking its grant in her favour. Said Smt.Sanjeevamma emboldened by the fact that there were no immediate traceable owners in relation to the schedule property, decided to forcibly enter upon the schedule property and accordingly she occupied the schedule lands and constructed house thereon including the plaintiff herein and ever since the plaintiff has been in peaceful possession and enjoyment of the schedule property in her own rights as absolute owner thereof. From 1968-69 onwards, she has been in illegal, unauthorised possession of the suit property. She is a trespasser, with absolute animus and intention to acquire ownership over the same, in due course of time.
3. That, taking advantage of the absence of the real owners and physical non-interference of lawful claim by anyone, she approached the jurisdictional revenue authorities to grant the schedule property in her favour as the person in actual possession of the schedule property through letters dated 5.12.2005, 30.12.2006 and 11.9.2007. The Corporation authorities have relied on 1.9.2007 and 24.9.2007 contending that since the suit filed by the plaintiff in O.S.No.7187/2005 is pending, they cannot grant the schedule property even though the said suit is nothing to do with the defendants.
4. The plaintiff having entered upon the schedule property without any authority of law and as a trespasser has continued in peaceful possession of the same for over 4 decades. The possession of the plaintiff in relation to the schedule property is open, hostile and known to the true owners i.e., the defendants. Her possession apart from being open and continuous, is hostile and adverse to the interest of its alleged true owners and to the knowledge of the true owners. Plaintiff realized and discovered after 2-3 years of her unauthorised occupation in 1968 that the defendant was the original owner of the schedule property. Apart from the physical non- interference, the defendants have not even tried to correct their records though they have the full knowledge of the same since 1970-71. Thus, the plaintiff acquired the ownership and perfected her title by adverse possession over her property to the knowledge of the defendants. she acquired the title and ownership to the plaint schedule property by prescription since the physical possession with animus possessandi has remained with the plaintiff. The animus of the plaintiff has been hostile, throughout the period of 4 decades, which has remained uninterrupted by the defendants. If any right of the defendants if any in relation to the suit schedule property of the defendant got terminated and extinguished upon the expiry of 30 years from the date of adverse possession. The right if any of the defendants got statutorily extinguished during the year 2000-01. Since the defendants have not filed any suit for possession against the plaintiff within the time, the plaintiff has acquired valuable right in relation to the suit schedule property.
5. That, the defendants made attempts to forcibly enter and trespass upon the suit schedule property along with their henchmen and followers during the first week of July 2008. The plaintiff with the help of the well-wishers resisted the illegal attempts of the defendants. She has brought to the notice of the defendants several times and requested them to grant the schedule premises in her favour. The defendants have replied untenably. The plaintiff has caused notice as required under Section 482 of CMC Act on 24.3.2008. Hence, this suit.
6. In response to the summons, the defendants No.1 and 2 entered appearance before the Court through their counsel and resisted the suit by filing written statement. The written statement of the defendants in brief is as follows :
The defendants admit that they are the owners of the suit schedule property. The defendants have denied the entire averments made in the plaint. They pleaded ignorance that the plaintiff's mother Smt.Sanjeevamma has been residing in the western side of the suit schedule property and that Smt.Sanjeevamma was the foster daughter of Smt.Siddamma and she acquired the property by way of gift deed. They contend that after the grant of property No.60/1 in favour of Smt.Sanjeevamma, her name has been recorded as khathedar of property No.60/1. Said Smt.Sanjeevamma had requested the marginal land adjacent to the property granted to her from these defendants. Her request was rejected. Said Smt.Sanjeevamma made a representation on 3.2.2004 requesting to allot marginal land measuring 21 x 30 feet. After receiving the representation, these defendants had directed to produce the title deed of the property in question. The notice issued by these defendants was acknowledged by the plaintiff. Thus it is clear that the land adjacent to the property No.60/1 is the marginal land belonging to these defendants Corporation. The plaintiff is claiming marginal land. The plaintiff has no title over the property and she is not in possession of the same. The suit schedule property belongs to the defendants and it is in possession of the Corporation. The plaintiff in order to knock off the property, she has stated that she trespassed into the suit schedule property in the year 1948. In the cause title, her age is mentioned as 43 years. It clearly shows that the intention of the plaintiff is to knock off the property of Corporation. The plaintiff at no point of time is in occupation of the land as claimed by her from 1968-69.
7. The defendants further contend that the plaintiff is not in possession and enjoyment of the land bearing No.60/1 on which she is trying to set up the claim. The documents produced by her are all obtained by fraudulent means and these documents are not sufficient to establish that she acquired the property by adverse possession. The plaintiff has also filed application to grant the marginal land in her favour, which shows that the property belongs to Corporation and it is in possession of the Corporation. The plaintiff nowhere in the plaint has stated which was the date she trespassed into the suit schedule property. On these grounds, the defendants prayed for dismissal of the suit.
8. On the basis of the pleadings of the parties, following issues have been framed:
(1) Whether the plaintiff proves that she is an absolute owner and in possession and enjoyment of the suit schedule property ? (This issue is recasted on 19.7.2017) as :
Whether the plaintiff proves that she perfected title over the suit schedule property by way of adverse possession?
(2) Whether the plaintiff proves the alleged interference by the defendants ?
(3) Whether the plaintiff is entitled for the relief as prayed for ?
(4) What order or decree?
9. In order to substantiate her claim, the plaintiff has got examined herself as PW.1 and got marked documents - Exs.P.1 to P.30 and closed her side. On behalf of the defendants D.W.1 has been examined and got marked documents - Exs.D.1 and D.2 and closed their side.
10. Heard the arguments of both sides.
11. My findings on the above issues are as follows:
Issue No.1 : In the negative.
Issue No.2 : In the affirmative.
Issue No.3 : Partly in the affirmative. Issue No.4: As per final order, for the following:
REASONS
12. Recasted Issue No.1 :- Admittedly, the suit schedule property belongs to BBMP. The plaintiff claims that she is in possession of the property for 4 decades openly against the interest of true owner without any interruption, thereby she has perfected her title over the suit schedule property by way of adverse possession. The plaintiff claims right over the property by way of adverse possession. The burden is on her to establish that when she came into possession of the suit schedule property, her possession must be open against the interest of the true owner, her possession must be continuous for a period prescribed by law, without any interruption and she has been in peaceful possession and enjoyment of the property without disturbance as prescribed under law. The defendant contends that the suit schedule property is a marginal portion adjacent to the property bearing No.60/1. The property bearing Municipal No.60/1 was granted to the mother of the plaintiff by name Smt.Sanjeevamma. She made representation to grant said land. Her representation was rejected. Subsequently the plaintiff made representation to grant the schedule property in her favour. To appreciate the rival contentions of the parties, the evidence of the parties has to be looked into.
13. The plaintiff who examined herself as P.W.1 has filed affidavit in lieu of examination-in-chief, wherein she has reiterated the plaint averments. According to her, the suit schedule property is situated towards the eastern side of the property bearing western portion of the suit schedule property bearing Municipal No.60/1, 7th Cross, Chikkathayappa Road, Vasanthnagar, Bengaluru. Said property was originally belonged to one Smt.Siddamma. She gifted the said property to Smt.Sanjeevamma on 12.2.1965 through a registered Gift Deed. Thereafter, her mother Smt.Sanjeevamma constructed the house on the schedule property about 40 to 50 years back and put her husband and children in possession of the property. The father of the plaintiff died and other children have settled down separately. Her mother constructed house during 1968 on the suit schedule property. Accordingly, her mother occupied the schedule land and constructed the house thereon, including the plaintiff has been in peaceful possession and enjoyment of the suit schedule property in her own rights as absolute owner thereof. From 1968-69 onwards the plaintiff has been in illegal unauthorised possession of the suit schedule property. The averments of the plaintiff are not specific as to whether the mother of the plaintiff has constructed the residential house on the suit schedule property or the plaintiff has constructed the house in the year 1968. Admittedly, towards the eastern side of the suit schedule property, the property bearing No.60/1 is situated. The pleading is not specific as to whether the plaintiff's mother constructed the property bearing Municipal No.60/1 and on the suit schedule property. There is vague pleading. The burden is on the plaintiff to establish that her mother or herself constructed the house on the suit schedule property in the year 1968, from then onwards she has been possession of the property.
14. The plaintiff has given evidence by way of affidavit wherein she has reiterated the entire averments. Even in her evidence she has not specifically contended that her mother had constructed the house on the suit schedule property in the year 1968 and she was put into possession in the suit schedule property, since then she has been in possession of the property. In the cause title the age of the plaintiff is shown as 43 years. The plaintiff has produced Birth Certificate issued by BBMP wherein her date of birth is shown as 27.10.1958. Ex.P.5 is the Transfer Certificate issued by the Vice Principal, Government Junior P.U. College, Malleshwaram, wherein the date of birth of the plaintiff is shown as 26.10.1958. Exs.P.2 and P.5 came into existence at the undisputed point of time. Hence, there is no evidence to the effect that the contents in Exs.P.2 and P.5 are not genuine one and these documents are concocted for the purpose of this case. No evidence has been elicited from the cross- examination of the plaintiff that she was born subsequent to 1958. Further, no contra evidence has been placed by the defendant to disprove the contents of Exs.P.2 and p.5. In the circumstances, it can be inferred that the plaintiff was born on 26.10.1958. The present suit was filed in the year 2008. At that point of time the plaintiff was aged about 50 years. According to her, she has been in possession of the suit schedule property since her birth. The burden is on her to establish that her mother Smt.Sanjeevamma constructed a house in the year 1968 on the property gifted in her favour by Smt.Siddamma and also she constructed a house on the suit property in the year 1968. The plaintiff has produced tax paid receipt pertaining to her mother's property for the year 2014-15, 2015-16. These documents would show that the plaintiff's mother was in possession of the property bearing Municipal No.60/1 for the year 2015-16. Except the documents Exs.P.2, 27, no corroborating evidence has been placed by the plaintiff to show that her mother had constructed a house on Site No.60/1 in the year 1968, at that time her mother constructed a house on the suit schedule site. In the absence of documentary evidence it cannot be held that the plaintiff's mother Smt.Sanjeevamma constructed a house on the Site No.60/1 in the year 1968 at the same time she constructed a house on the suit schedule site, since then they have been in possession of the suit schedule. No material has been placed by the plaintiff to establish that her mother constructed a house on the suit schedule in the year 1968 since then she has been in possession of the property. In the year 1968 as per the documents Exs.P.2 and P.5 the plaintiff was aged about 10 years. Her contention that since the construction of the house, she has been in possession of the suit schedule property. As discussed above, the plaintiff has failed to establish that her mother constructed the house on the suit schedule property in the year 1968. In the absence of material it cannot be inferred that the plaintiff has been in possession of the suit schedule property for the year 1968.
15. Exs.P.6 and P. 7 are the Voter's I.D. and Ration Card pertaining to the plaintiff. Election I.D. Card - Ex.P.6 was issued in the year 2002, Ration Card was issued in the year 2004. In these documents the address of the plaintiff is shown as No.67, 7th Cross, Vasanthnagar. Ex.P.9 is the Representation given by the plaintiff on 30.12.2006 to the Commissioner, BBMP wherein she has given reply to the endorsement given by BBMP and stated that she has filed suit in O.S.No.7187/2005 against her mother Smt.Sanjeevamma and one Rajanna for the relief of injunction . Exs.P.10 and P.11 are the Letters addressed by the husband of plaintiff to the Commissioner, BBMP dated 11.7.2007, wherein he states that he has been in possession of the suit schedule property since 20 years. According to the husband of plaintiff, they have been in possession of the suit schedule property from the year 1987. Even to substantiate the same, no documentary evidence has been placed by the plaintiff. As could be seen from Exs.P.6 and P.7, they have been in possession of the suit schedule property from the year 2002. Ex.P.8 is the representation given by the plaintiff to the Commissioner, BBMP wherein she requested to allot the suit schedule property in her favour. At that point of time, the plaintiff was very much aware of the fact that the suit schedule property belongs to the Corporation, she had no right over the property, hence, she requested the Corporation to grant site in her favour. During 2005 also the plaintiff had no animus to acquire the property against the interest of true owner. Her possession was not hostile against the true owner. Ex.P.12 is the endorsement issued by the Assistant Revenue Officer to the plaintiff and her mother wherein it is stated that the plaintiff and her mother requested to grant western portion of the schedule property bearing No.60/1 in their favour and also further stated that the plaintiff and her mother entered into a sale agreement to alienate the property. Hence, their representation cannot be considered. The endorsement dated 1.9.2007 also discloses that the plaintiff gave representation to the Assistant Revenue Officer to grant the property situated on the western portion of the property bearing No.60/1. Ex.P.13 is the endorsement issued by the Assistant Revenue Officer, Shivajinagar Sub- Division, BBMP which reveals that the husband of plaintiff Narayanappa gave representation to BBMP, wherein he requested to grant the suit schedule property in his favour. On that representation, the BBMP has given endorsement that the plaintiff and his mother entered into sale agreement with some other person to alienate the property belongs to the Corporation and their action is illegal. On this ground, the BBMP has rejected the representation given by the plaintiff's husband regarding grant of suit schedule property. Prior to that, the plaintiff herein has given representation and clarification to the Assistant Revenue Officer on 9.11.2007 wherein she has given clarification that her mother entered into agreement with some other person by creating false documents to sell the suit schedule property, she has not entered into any sale agreement with any other persons for the sale of the suit schedule property. Ex.P.15 is the endorsement dated 28.1.2016 issued by the Assistant Revenue Officer, BBMP wherein it is stated that the representation given by the plaintiff cannot be considered regarding the grant of suit schedule property since the suit is pending before the Court. Ex.P. 16 is the final endorsement dated 23.12.2006 issued by the Assistant Revenue Officer, BBMP wherein it is stated that the suit schedule property cannot be granted till the disposal of O.S. No. 7187/2005 pending on the file of the CCH-7. The documents produced by the plaintiff would show that at the first time in the year 2005 the plaintiff requested the BBMP to grant the suit schedule site in her favour. Her representation has not been considered by the BBMP and issued an endorsement stating that her representation cannot be considered since the suit is pending before CCH-7. Even in the year 2005 the plaintiff had no animus to acquire the property though she had been in possession of the property earlier to 2005. Her possession is not hostile against the true owner though she was in possession of the property in the year 2005. Exs.P.17 to P.19 are the letters addressed by the plaintiff to BBMP. The contents of all the letters are one and the same wherein she requested the BBMP to grant the suit schedule property in her favour. Though she has stated in Ex.P.17 that she has been in possession of the suit schedule property for more than 45 years, her possession was not hostile to the interest of the true owner. Exs.P.28 and P.29 are the receipt and copy of application filed by the plaintiff to B.D.A for allotment of site. The said application is filed on 8.9.1987. In the receipt, the address is shown as No.67, 7th Cross, Vasanthnagar. This document does not help the plaintiff to show that she constructed a house prior to 1987 and she has been in possession of the same for more than 30 years in the suit schedule property as on the date of filing the suit. Further, as discussed above, the plaintiff has not placed any material to show that her mother Smt.Sanjeevamma constructed a house in the year 1968 or subsequent to that year. No convincing evidence has been placed by the plaintiff to show that as on the date of filing the suit she has been in possession of the suit schedule property for more than 30 years against the interest of the true owner. The documents produced by the plaintiff do not disclose that the plaintiff has been in possession of the property for more than 30 years as on the date of filing the suit. The plaintiff claims that she has been in possession of the suit schedule property since her birth, but she has not specifically pleaded and proved that when she took possession of the suit schedule property. In the absence of specific pleadings, any amount of evidence given by the plaintiff regarding her possession over the suit schedule property cannot be accepted.
16. During the course of cross-examination, plaintiff has deposed that Municipality granted property bearing No.60/1 measuring 35x21 Ft in favour of Sanjeevamma. Her evidence is contrary to her pleadings. Further she has deposed that she cannot say when she entered into possession of the suit schedule property. The plaintiff is not specific when she entered into the suit schedule property. It is the basic requirement to prove the adverse possession. Only on the stray admission the entire case of the parties cannot be discarded. But, in the present case, the plaintiff has not specifically pleaded when she came into actual possession and proved that she came into possession of the property for more than 30 years prior to filing of the suit and she has been in possession and enjoyment of the same openly against the interest of defendants. As discussed above, the plaintiff has no animus to acquire the property against the interest of the true owner. If she had animus to acquire the possession, she would not have given representation to the Corporation in the year 2005 to grant the suit schedule property in her favour. Mere possession is not sufficient to claim adverse possession. Possession must be hostile against the interest of the true owner. The plaintiff has miserably failed to place evidence that she constructed a house in the year 1968, since then she has been enjoying the property for more than 30 years. In the absence of proof, it cannot be held that the plaintiff has been in possession of the property since 1968 and perfected her title over the suit property by way of adverse possession. The plaintiff has produced the photographs to show that she has been in possession of the suit schedule property. But, these photographs do not confer the right of the plaintiff that she perfected the title over the property by way of adverse possession.
17. The Advocate for the plaintiff has argued placing reliance on the following Judgments : -
1) AIR 2009 Supreme Court 103 - Hemaji Wadhaji Jat Vs. Bhikhabhai Khengarbhai Harijan & Ors. 2) AIR 1987 Madhya Pradesh 102 (Indore Bench) - Nagu and others Vs. Bhanwarsingh and others. 3) 2006 AIR SCW 4368 - T.Anjanappa & Ors., Vs. Somalingappa & Anr.
18. The principles laid down in these Judgments are not applicable to the present facts of the case. As per the ratio laid down in AIR 2009 SC 103, the plaintiff ought to have established as to when she came into possession of the property and the nature of her possession and that, her possession has been peaceful without disturbance, hostile to the interest of the true owner. As discussed above, the plaintiff has failed to establish that when she came into possession of the property. Though she pleaded that she has been in enjoyment of the property in the year 1968, no documentary evidence produced on her behalf regarding in which year she constructed the house on the suit schedule property or her mother constructed a house on the suit schedule property. In the year 1968 she was minor who was aged about 10 years. At that age, she had no animus to possess the property against the interest of the true owner. The theory put forth by the plaintiff cannot be believed and accepted. No convincing evidence has been placed by the plaintiff that when she came into possession of the suit schedule property. The plaintiff has miserably failed to prove that she has been in possession of the property for more than 30 years as on the date of suit and she has perfected her title over the suit schedule property by way of adverse possession. Hence, I answer recasted Issue No.1 in the negative.
19. Issue No.2 : - According to the plaintiff, defendants are trying to forcibly enter upon and trespass into the suit schedule property. The defendants along with their henchmen and followers during the first week of July 2008 made attempts to forcibly enter the suit property. She resisted the acts of the defendants with the help of well wishers. She has deposed the same in her evidence. Her evidence has not been denied by the defendants in the course of cross-examination. The plaintiff is in possession of the property which is evident from the documents produced by her. Number of times the plaintiff and her husband made representation to the BBMP to grant site in her favour alleging that she has been in possession of the property. Her representation has not been considered and rejected on the ground that the suit is pending before the Civil Court with respect to the property. It shows that the plaintiff was in possession of the property as on the date of suit. The defendants denied her possession in the written statement. It shows that the defendants interfered with the possession of the suit schedule property. To rebut the case of the plaintiff, the defendants have not placed any evidence regarding interference. Hence, it can be inferred that the defendants interfered with the possession of the plaintiff over the suit schedule property. The denial of plaintiff's possession over the suit schedule property by the defendants itself amounts to interference. Hence, I answer Issue No.2 in the affirmative.
20. Issue No.3 : - The plaintiff has failed to establish that she perfected her title over the property by way of adverse possession. Hence, she is not entitled for declaration that she is the absolute owner of the suit schedule property as on the date of suit. The plaintiff was in possession of the property. Her possession was disturbed and interfered by the defendants. The plaintiff has been in settled possession of the property. Her possession has to be protected till she is evicted from the suit schedule property by due process of law. Hence, the plaintiff is entitled for the relief of injunction. Hence, I answer Issue No.3 partly in the affirmative.
21. Issue No.4 :- For the forgoing reasons, I proceed to pass the following:
ORDER Suit filed by the plaintiff against the defendants is hereby partly decreed. The suit of the plaintiff seeking declaration that she perfected title over the property by way of adverse possession is hereby rejected.
The defendants, their agents or anybody
claiming on their behalf are hereby
restrained from interfering with the
plaintiff's possession over the suit schedule property till she is evicted from the suit schedule property under due process of law.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in the open court, this the 18th day of September, 2017.) (M.KOMALATHA), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : Smt.Manjula
2. List of documents exhibited for plaintiff :
Ex.P.1 & 2 Birth Certificates
Ex.P.3 & 4 Caste certificates
Ex.P.5 Attested copy of Transfer Certificate
Ex.P.6 Election I.D. card.
Ex.P.7 Ration card
Ex.P.8 to 11 Copies of letters
Ex.P.12 & 13 Endorsements
Ex.P.14 Copy of letter
Ex.P.15 Endorsement
Ex.P.16 Final Notification
Ex.P.17 to 19 Copies of letters.
Ex.P.20 Acknowledgment.
Ex.P.21 to 25 Photographs
Ex.P.21(a)to 25(a) Negatives.
Ex.P.26 Order Sheet in O.S.No.7187/2005
Ex.P.27 2 Receipts
Ex.P.28 Acknowledgment for returning deposit
amount dated 1.3.95
Ex.P.29 Acknowledgment issued by B.D.A for
having received application for allotment of site Ex.P.30 Copy of khatha extract.
3. List of witnesses examined for defendants :
D.W.1 : Suhail Ahamed
4. List of documents exhibited by the defendants:
Ex.D.1 Khatha extract pertaining to property No.60/1 Ex.D.2 Khatha extract pertaining to property No.67.
(M.KOMALATHA), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***