Bangalore District Court
Bruhat Bangalore Mahanagara Palike vs Vishwachethana Trust on 18 April, 2022
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU
(CCH-20)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 18 th day of April, 2022
O.S.No.26693/2011
Plaintiff: Bruhat Bangalore Mahanagara Palike,
N.R.Square,
Bengaluru-560 002
Represented by its Commissioner
[By T.J.P-Advocate]
Vs.
defendant: Vishwachethana Trust,
No.44, 7th Cross, 3rd Main Road, 2nd Phase,
Basaveswara Layout, Bengaluru 560 040,
Represented by its Managing Trustee.
[By Sri.D.R.R-Adv.]
Date of Institution of suit: 26.09.2011
Nature of the Suit (Suit for
Pronote, Suit for Declaration
and Possession, Suit for Injunction Suit
Injunction, etc.):
Date of Commencement of 04.02.2019
recording of evidence:
Date on which the Judgment
was pronounced: .04.2022
Total Duration:
Years Months Days
10 06 22
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
Mayo Hall, Bengaluru.
3
OS No.26693/2011
JUDGMENT
This is a suit filed by the plaintiff-BBMP for grant of an order of permanent injunction to restrain the defendant and its, henchmen, agents or any other person/s or any one claiming under it from interfering with the plaintiff's peaceful possession enjoyment of the suit schedule property, and for costs.
2. Brief facts of the case of the plaintiff, as shown in the plaint, are as below:-
That the land bearing Survey Number-44, measuring 34 guntas, Katte land ('B' Karab) situated at Nagarabhavi village and Survey Number- 380 (tank bed area) measuring 1 Acre 18 guntas of Kempapura Agrahara village, Yeshwanthapura Hobli, Bangalore North Taluk which are described in the schedule and hereinafter referred to as 4 OS No.26693/2011 suit schedule property, belonged to the Plaintiff and it is a Tank Bed Area as per the records of the City Survey. After the entire area coming within the limits of B.B.M.P long back, the entire schedule property became the absolute property of the plaintiff. Thereafter, the plaintiff has erected chain link fencing around the schedule property more than a decade ago to be used by the residence of the locality and others as a play ground, which has been named as Krantiveera Sangolli Rayanna Play ground. The State Government by its letter dtd. 17.06.2009 has stated that Survey Number- 380 of Kempapura Agrahara and Survey Number- 44 of Nagarabhavi vil lage are the Tank Bed area/Kere Katte land and since several years the BBMP is using the same as a Play ground for the locality. The suit schedule property do not belong to any person much less the defendant herein. There is a huge drain runs in the 5 OS No.26693/2011 schedule property besides, there are several electrical poles installed in the schedule property. Ever since the date of the acquisition of the schedule property, the plaintiff is in lawful and peaceful possession and enjoyment of the schedule property which situated in two Survey Numbers namely 44 of Nagarabhavi village and Survey Number-380 of Kempapura Agrahara Village, Bangalore North Taluk.
When then being the position during the year 2001 one Smt.B.S.Mala tried to interfere in a portion of the land bearing Survey Number-44 of Nagarabhavi village, Yeshwanthapura Hobli, Bangalore North Taluk. When the said illegal interference was objected by the plaintiff, bringing to the notice of the said Smt.B.S.Mala that the suit schedule property is a playground and is surrounded by chain link fencing and being used as a playground, Smt.B.S.Mala filed a false and frivolous suit in OS No.1251 6 OS No.26693/2011 of 2001 on the file of CCH No.9, based on the illegal and fraudulent claim in respect of concocted, fabricated, cooked up and forged Sale Deed. After considering the written statement filed by BBMP, the said suit came to be dismissed. When that is so, the defendant herein who is a total stranger to the suit schedule property came near the suit schedule property on 17.09.2011 and tried to interfere with the peaceful possession and enjoyment of the suit schedule property on the ground that a portion of the schedule property is leased in their favour by the B.D.A. Thereafter the plaintiff made enqirey and found that the said C.A. Site No.1 carved out of Survey Number-179/3 is presently a GKW Bus Station and the defendant having came to know about the same, came across vacant land which is not at all situated in GKW layout and tried to encroach into the same. Further on 21/22.09.2011 the 7 OS No.26693/2011 defendant stealthily came near the suit schedule property and dug a pit in a portion of the suit schedule property. The next day morning when the plaintiff went near the suit schedule property to its shock and surprise, they found the pit dug in a portion of the schedule property, and when enquired with the neighbours of the schedule property, they informed that the defendant in the wee hours of the night dug a pit in the schedule property to be used same for foundation. Immediately, the plaintiff rushed to the defendant and vehemently opposed their illegal acts and warned them not to meddle with the suit schedule property. But, the defendant refused to concede to the said legitimate demands on the part of the plaintiff and threatened the plaintiff that they would at any proceed with their illegal acts. Immediately on 22.09.2011 the plaintiff approached the jurisdictional Vijayanagar Police 8 OS No.26693/2011 and brought to their knowledge the high handed and illegal acts of interference on the part of the defendant and requested them to take action. However, the police have informed the plaintiff that the matter is civil in nature and directed the plaintiff to approach the competent civil court for necessary redressal. Hence, the plaintiff has filed this suit seeking the relief of permanent injunction against the defendant.
3. Defendant has contested the suit by filing written- statement, which is in brief as under:-
Suit is not maintainable either in law or on facts of the case. Plaintiff has no locus standi to file the suit and it is not binding on the defendant. Defendant denied the ownership of the plaintiff over the schedule property. The contention that the area coming under the jurisdiction of BBMP is its absolute property is absurd and defendant 9 OS No.26693/2011 denied that the schedule property has been fenced with chain link. But, admitted that the suit schedule property has been utilized as Playground and it is generally called Sangolli Rayanna Playground by the general public of the area but not named by the plaintiff. The dismissal of the suit of Smt.B.S.Mala does not convey right of ownership to plaintiff over the schedule property and plaintiff cannot be the owner of the schedule property under any circumstances. Defendant denies that it gone near the suit schedule property on 17.09.2011. It is further stated that the defendant has been in peaceful and continuous possession of its C.A.Site No.1 bearing Survey Number- 179/3 from 15.03.2007 when the same was allotted and given possession to the Trust with katha and obtained approval of the Plan from the B.D.A. for construction of the building for institutions of the Trust and started 10 OS No.26693/2011 construction on 12.03.2010 by laying the foundation through Area MLAs and Opposite Leader of the State. But the Plaintiff and its subordinates being unauthorized persons trespassed into the property of the defendant and threatened the staff of the Trust and workers of construction and snatched their tools by misusing their powers and positions with malafide intention of depriving the defendant Trust of is property. Defendant denied all the allegations made in the plaint by the plaintiff and further states that the plaintiff being pressurized by a vested and unworthy Minister who is bent upon depriving the defendant of its site and who is all along been troubling the defendant from the beginning of allotment of site by B.D.A. to it has filed this frivolous suit being his stooge and this defendant pity him for the same. Further the very Minister got the building illegally constructed in 11 OS No.26693/2011 the schedule property and this defendant questioned the same in the High Court of Karnataka and obtained the interim Order against the same. The area persons filed a PIL against the very same Minister and the same is pending disposal. But, without questioning the said Minister plaintiff now unnecessarily troubling and harassing the defendant to please his boss. There is no cause of action for the suit and the plaintiff is not entitled to the relief sought for in this suit. On the said grounds defendant has sought for dismissal of suit.
4. In support of the plaintiff's case, plaintiff got examined its Joint Commissioner (Estate) as P.W.1 and also examined its Asst. Revenue Officer as PW.2 and got marked 19 documents as Ex.P.1 to P.19. In defence, defendant got examined its Founder Trustee as DW.1 and also got 12 OS No.26693/2011 examined its Retired Lecturer as DW.2 and got marked 7 documents as Ex.D.1 to 7.
5. Heard arguments and also perused the written arguments filed by the Plaintiff.
6. The following issues have been framed for determination:-
1. Whether plaintiff proves its lawful possession and enjoyment in the suit schedule property as on the date of the suit?
2. Whether plaintiff proves that defendant is causing illegal interference in his possession over the suit schedule property ?
3. Whether plaintiff is entitled for decree of permanent injunction as sought in the plaint?
4. To what decree or order?13
OS No.26693/2011
7. For the reasons stated in the subsequent paragraphs, I answer above Issues as follows:-
Issue No.1 :- In the affirmative
Issue No.2 :- In the affirmative
Issue No.3 :- In the affirmative
Issue No.4 :- As per final order
for the following
REASONS
8. Issue No.1:- According to the plaintiff after
institution of the suit, in disobedience to the Order of temporary injunction granted against the defendant, it is alleged that defendant has put up construction in the suit schedule property. Suit has been filed for the relief of permanent injunction. At the time of filing the suit it is alleged that defendant tried to dig foundation in the suit property and men of the defendant Trust were stopped 14 OS No.26693/2011 and police complaint was lodged, but the police asked the Plaintiff/BBMP authorities to approach Civil Court. Thus, according to the plaint claim when the suit was filed, suit property was still vacant and plaintiff was still in possession of the suit schedule property. After suit was filed and interim order was granted, it is stated that in violation of the interim order of injunction defendant trust has put up construction in the suit property. Suit schedule property has been described as Playground comprised in land bearing Survey Number-44 of Nagarabhavi village measuring 34 guntas and Survey Number-310 of Kempapura Agrahara village measuring 1 Acre 18 guntas, in all 2 Acres 12 guntas. Boundaries of the suit property have been furnished as below:-
"East by : Sy.No. 379 and 382 of Kempapura Agrahara village;
West by : Remaining portion of Sy.No.44/1 15 OS No.26693/2011 North by: Sy No.381 of Kempapura Agrahara and Malagala Village South by: Sy No.379 of Kempapura Agrahara village".
9. In the written statement defendant has claimed that defendant is in possession of the C.A.Site No.1 situated in Survey Number-179/3 from 15.03.2007 ie., from the time said site was allotted and possession was handed over. Though defendant obtained sanctioned plan from the B.D.A. for construction of the building for its institutions and started construction on 12.03.2010, defendant claims that the then area MLA who was also Leader of Opposition Party laid foundation for construction of buildings for the institutions of the defendant Trust. Defendant further claims that at that time plaintiff and its subordinates, officials trespassed into the said property and snatched the tools from the workers. Now, while 16 OS No.26693/2011 adducing the evidence defendant claims that B.D.A. has executed a Rectification Deed by correcting C.A.Site Number as CA Site No.2 which is situated in Survey Number-179/3. Thus, in the evidence it is claimed that defendant has put up construction of the buildings in C.A. Site No.2 in Survey Number-179/3, which is adjacent to the suit schedule property.
10. For now, question to be determined under this issue is whether the plaintiff was in lawful possession and enjoyment of the suit schedule property as on the date of the suit. So far as this point is concerned, as already mentioned, it is the plaintiff's case that it was in possession of the suit schedule property, having constructed chain linked fence all around the suit property and further that the same was being used by the general public as 17 OS No.26693/2011 Playground. Except for stating that the defendant tried to interfere with plaintiff's possession of the suit property by trying to dig foundation in the suit property, plaintiff claims that it was absolutely in possession of the suit property as on the date of the suit. In order to substantiate the suit claim, on behalf of the plaintiffs its Joint Commissioner (Estate) has been examined as PW.1. PW.1 has filed affidavit for examination-in-chief, but afterwards he has not been tendered for cross examination. Plaintiff has instead examined PW.2. PW.2 is the Asst. Revenue Officer of the Plaintiff authority at Chandra Layout Sub Division, Bengaluru. PW.1's evidence has stood discarded in view of not tendering for cross examination. Thereafter, PW.2 has filed affidavit for examination-in-chief reiterating the suit claim. Plaintiff has produced certified copy of the village map of Kempapura Agrahra village as per Ex.P.2, 18 OS No.26693/2011 certified copy of the village Map of Nagarabhavi as per Ex.P.3. Plaintiff has produced certified copy of the judgment dtd. 31.03.2011 in OS No.1251/2001. Said suit had been filed by one B.S.Mala against the plaintiff in respect of the land bearing Survey Number-44 and the same has been dismissed. Said judgment produced as per Ex.P.4 is not of much significance in this case for deciding as to whether the plaintiff was in lawful possession of the suit property as on the date of the suit. Plaintiff has produced photographs as per Ex.P.5 and 6 to show that the suit property is fenced with chain link on all sides and there was interference by defendant by digging pits/ foundation in the suit property. Further, the plaintiff has produced certified copy of the complaint given against the defendant after the institution of the suit alleging that defendant has been trying to interfere with the property in 19 OS No.26693/2011 disobedience to the interim order granted by the court. Said complaint has been marked as per Ex.P.7. Ex.P.8 is Acknowledgment issued by the Police. Plaintiff has also produced certified copy of the photos of the construction put up by the defendant in the suit property as per Ex.P.9 to 19. According to the plaintiff said construction have been put up during the pendency of the suit in violation of the interim order of injunction. In addition to the above documents, plaintiff has chiefly relied on the Order dtd. 9.10.2014 passed in MFA No.3069/2012 c/w. MFA. 3070/2012 passed by the High Court of Karnataka, Bengaluru in the Misc.Appeal filed against the interim order of injunction passed in this case and same has been marked as per Ex.P.1. After I.A.No.I filed by the plaintiff under Order-39 Rules-1 and 2 of the the Civil Procedure Code, for temporary injunction was allowed and I.A.No.3 20 OS No.26693/2011 filed by the defendant under Order 39 Rule 4 of the the Civil Procedure Code for vacating the interim order was dismissed, defendant has filed the above said Misc.First Appeal, but they have been dismissed. Plaintiff is calling attention to the observation made in the said order.
11. On the other hand, Founder Trustee of the Defendant Trust has examined himself as D.W.1 and in his evidence he states that defendant Trust is running High school and PUC institutions and it is aided by the Government of Karnataka. It had applied for allotment of CA site and BDA was pleased to allot a CA site in RPC Layout now Hampinagar, measuring 5,240 sq. meters, but the same was misused by the then area Corporator and hence alternative CA site was allotted in GKW Layout of Kempapura Agrahara, Govindarajanagar Constituency, Bengaluru measuring 1467 sq. meters and the Possession 21 OS No.26693/2011 certificate was issued to the defendant and katha was also transferred in its name. D.W.1 states that BDA approved the construction plan and thereafter, Defendant has constructed the building and running PUC college in the said C.A.Site alloted to the Defendant Trust. Defendant trust had filed a writ petition seeking direction to the BDA to grant remaining area of land to an extent of 3,778 sq. meter and after hearing the matter, in W.P.No.13060/2018 (BDA), High Court of Karnataka, Bengaluru gave direction to the defendant trust to submit one more representation to the BDA and accordingly the defendant submitted another representation on 24.10.2019 and the said representation is under consideration before the Bangalore Development Authority. He states that plaintiff has not produced any documents to show that there is land belonging to it and defendant is not interested in 22 OS No.26693/2011 encroaching upon any body's land much less BBMP land ie., plaintiff's land. He states that plaintiff is absolutely claiming that the schedule land was given to the plaintiff. Plaintiff has not proved that the suit land belongs to it and it has filed suit with a malafide intention. Thus, D.W.1 being founder trustee of the defendant has prayed for dismissing the suit of the plaintiff.
12. On behalf of defendant another witness has been examined as DW.2. D.W.2 has merely produced the Spl. Power of Attorney as per Ex.D.6, and on-line copy of the Rectification Deed dtd. 22.01.2015 as per Ex.D.7. He has not stated anything else in his further examination in chief. Whereas DW.1 has produced original allotment letter dtd. 13.11.2006 as per Ex.D.1, approved plan as per Ex.D.2, attested copy of the plan sanction certificate as per Ex.D.3, 23 OS No.26693/2011 attested copy of the C.A. Site Lease Agreement dtd. 14.3.2007 as per Ex.D.4 and Representation dtd.24.10.2019 as per Ex.D5.
13. On behalf of the plaintiff learned counsel in his oral and written arguments submits that the suit schedule property which is situated in Survey Number-44 of Nagarabhavi village and Survey Number-380 of Kempapura Agrahara village comprises an extent of 34 guntas and 1 Acre 18 guntas respectively which is 'B' karab land and tank bed area and the plaintiff corporation has erected chain link fencing around the suit schedule property and same is being used as playground having been named as Kranthi Veera Sangolli Rayanna Playground. That earlier one B.S.Mala had filed a false suit in OS No.1251/2001 in respect of Survey Number- 44 which is part of the suit property, but same was dismissed after 24 OS No.26693/2011 contest. Defendant has claimed that C.A.Site No.1 carved out in Survey Number-179/3 of Kempapura Agrahara village is leased out in its favour by the B.D.A. and thereafter Rectification Deed has been executed by correcting the C.A.Site Number as No.2 in the place of No.1. Defendant is claiming that said site leased in Survey Number- 179/3 is situated adjacent to the suit property. Plaintiff had filed I.A.under Order 39 Rules-1 and 2 of the CPC along with the suit and after defendant filed objections to the same, on merits same was allowed and I.A.No.3 filed by the defendant under Order 39 Rule-4 of the the Civil Procedure Code for vacating the interim order was dismissed. Defendant filed two Misc.First Appeal against the said orders in MFA No.3069-3070/2012. In the said Appeals, High Court of Karnataka, Bengaluru appointed jurisdictional ADLR to conduct Survey and produce Sketch/ 25 OS No.26693/2011 Topography and accordingly, ADLR conducted survey and submitted report stating that C.A.Site No.1 carved in Survey Number-179/3 would not fall within the area of the suit schedule property. Earlier to that, there was interim order passed in the said appeals stating that the defendant put up construction in C.A.Site No.1 carved out in Survey Number-179/3, but however, defendant should not claim any equity if the construction made is found to be in the suit schedule property. But, after ADLR submitted report stating that the C.A.Site No.1 or Survey Number-179/3 would not fall within the area of the suit schedule property, both the Misc.Appeals filed as above by the defendant were dismissed. However, defendant has put up construction in the suit schedule property in violation of the interim order of injunction which was in force and same is liable to be ordered to be demolished with a 26 OS No.26693/2011 direction to hand over vacant possession of the suit property to the plaintiff. Learned counsel for plaintiff argues that in the entire written statement defendant has not put forth any defence that it had already put up building in the suit schedule property as on the date of the suit and on the other hand, from the written statement contentions it is clear that defendant was trying to dig foundation for putting up construction when the present suit was filed. Also Learned counsel argues that from the order passed by the High Court of Karnataka, Bengaluru on 9.10.2014 in the above appeals, it was directed that the plaintiff shall not come in the way of the appellant constructing building in Survey Number- 179/3. Same also shows that subsequent to filing of the suit when the injunction order was in force defendant by taking advantage of the above said direction dtd. 9.10.2014 in the 27 OS No.26693/2011 Misc.First Appeals has put up construction the suit schedule property. Plaintiff's counsel argues that in the written statement at para-4 defendant admits that part of the suit property is utilized as playground and it is generally called as Sangolli Rayanna Playground by the general public. Further D.W.1 has later admitted in the cross examination that defendant has put up construction of the school building within the chain link fencing seen in photo at Ex.P.5 and same shows that the said construction has been put up in the suit schedule property during the pendency of the suit. Thus, Learned counsel has argued that defendant should be directed to dismantle the building and hand over the suit schedule property which is within the chain link fencing to the plaintiff without claiming any equity.
28
OS No.26693/2011
14. On behalf of the defendant, Learned counsel argues that defendant has put up construction in C.A.Site No.2 in Survey Number-179/3. That defendant's construction is not in the suit property. Also B.D.A. has issued allotment letter as per Ex.D.1 by mentioning the property Number as C.A.Site No.1 and it also issued sketch sanction letter as per Ex.D3 and executed C.A.Site Lease Agreement as per Ex.D4. But, thereafter, B.D.A. executed a Rectification Deed as per Ex.D.7 by correcting the C.A.Site number as No.2. Defendant has accordingly put up construction in the said site. Learned counsel for defendant has placed reliance on the decision in case of Sheodhyam Singh and ors. Vs. Mst. Sanichara Kuer and ors, reported in AIR 1963 SC 1879. In the said decision, legal position with respect of subrogation of mortgage has been dealt with. In that case appellant therein had taken loan 29 OS No.26693/2011 from the defendant on the mortgage bond and suit instituted in that connection was decreed against the appellants and thereafter other defendants sold mortgaged property by auction and themselves purchased it and entered into possession of the property which was delivered to them by the Court and then they sold the property to the respondents therein and respondents were put in possession. But, thereafter, appellants started interfering with the property. Hence, respondents filed suit which was decreed in their favour and same was challenged in the appeal under consideration. Said facts in no way apply to the case on hand. Therefore, I am of opinion that the said decision referred to by the counsel has no relevance. Defendant's counsel has placed reliance on another decision of the High Court of Karnataka, Bengaluru in the case of Tibba Boyi @ Kariya @ ors. Vs. 30 OS No.26693/2011 K.Venkatappa, reported in 1987 (2) KLJ-379. In the said decision law laid down is with respect to granting relief of declaration of title. It has been held that granting of said relief does not depend on Sec. 26 of Specific Relief Act, 1963. In my opinion the said ratio and facts of the said case also do not apply to the present case.
15. Now, turning to the main point of dispute which has to be decided under this issue, it has to be seen whether the plaintiff has proved its possession of the suit schedule property as on the date of the suit. Perusal of the written statement with respect to the plaintiff's above suit claim shows that at para-4 of the written statement, defendant states that a part of the suit schedule property is used as playground and it is generally called as Sangolli Rayanna Play ground. Thereafter, Defendant denies interference with plaintiff's possession of the suit schedule 31 OS No.26693/2011 property. But, defendant claims that defendant is in possession of C.A.Site No.1 in Survey Number-179/3 from 15.03.2007. At para-6 of the written statement above said averments can be found. Defendant further states that after obtaining the approval of the plan from the B.D.A. defendant started construction on 12.03.2010 and at that time, foundation laying ceremony was held, but plaintiff through its staff interfered with the work and snatched tools from the construction workers. Thereafter, defendant does not state that defendant put up any construction in the C.A.Site which was alloted to it by the B.D.A. At para-7 of the written statement, defendant denies that on the wee hours of 21-22/9/2011 defendant tried to dig pit in a portion of the suit property. Instead at para-7 of the written statement defendant states that plaintiff and its representatives deliberately trespassed into the suit 32 OS No.26693/2011 property and obstructed and prevented digging of foundation in its property and also gave false complaint to the police and the police under the pressure of the plaintiff came near the site and requested the defendant to stop work. Thereafter, defendant also lodged complaint to the police against the plaintiff and its representatives. Said averments at para-7 of the written statement read as follows:-
"7. Regarding para-11:-
The defendant strongly condemn and take objection to the allegations of the plaintiff that 'the defendant on the wee hours of dt. 21/22-9-2011, stealthily same near the suit schedule property and dug a fit in a portion of the suit schedule'. This defendant is not the plaintiff to stooge to that level but rightly dug the property of its own during day time as usual. The plaintiff and his stooges deliberately trespassed into its property obstructed and prevented digging of foundation in its property and gave false complaint to the police and police 33 OS No.26693/2011 under the pressure of the plaintiff came near the site and requested the defendant to stop the work. This defendant has also lodged a complaint against the plaintiff and his subordinates". .. So, the above averments of the written statement clearly admit plaintiff's case that defendant was digging foundation through its workers and plaintiff interfering with the same and also lodging complaint to the police. In this connection plaintiff has produced a copy of the complaint given to the police as per Ex.P.7. In fact, said complaint has been lodged during the pendency of the suit subsequent to granting interim injunction in favour of the plaintiff. Same shows that during the pendency of the suit defendant has continued construction when the interim order was in force. Whereas, the averments of the written statement culled out above shows that prior to filing of the suit defendant had tried to dig foundation and plaintiff 34 OS No.26693/2011 stopped same and also lodged the complaint. Said fact has been admitted by the defendant. But, according to the defendant, defendant was digging foundation in the C.A.Site allotted to it.
16. Plaintiff claims that the suit schedule property is within the chain link fence area. In this regard, report of the ADLR submitted in MFA No.3069/2012 c/w. 3070/2012 has been accepted in the said appeals by holding that chain link area described in the plaint schedule is the property of the plaintiff corporation and the C.A.Site claimed by the defendant was in Survey Number-179/3 and it is not within the chain link area which is the plaint schedule property belonging to the plaintiff. It has also been held that plaintiff has produced the orders passed by the Government of Karnataka, Revenue Department dtd. 17.06.2009 which shows that the suit schedule property 35 OS No.26693/2011 has been transferred by the Revenue Department of the Government of Karnataka to the BBMP for using same as play ground and plaintiff has fenced the property and installed name board. Relevant observation made in Ex.P.1 order dtd. 9.10.2014 is at page-7 which reads as below:-
"7. Pursuant to above said direction issued by this court respondent - BBMP the jurisdictional ADLR has conducted survey and filed a report before this Court along with sketch/topography of Sy.Nos.380, 44 and other adjacent and abutting survey numbers. A perusal of the report as well as sketch produced along with report would clearly indicate that property which is claimed to have been allotted to defendant by BDA namely, CA Site No.1, which is said to have been carved out of Sy.No.179/3 of Kempapura Agrahara Village, does not fall within the chain link of the areas described in the plaint schedule. In fact, Sri B.V.Puttegowda, appellant- party-in- person would fairly submit before this Court that defendant is not laying any claim in respect of suit schedule property. Accordingly, his submission is placed 36 OS No.26693/2011 on record. This submission made by the appellant-party- in-person would suffice to dispose of these two appeals. Since the order passed by trial Court granting an order of temporary injunction in favour of plaintiff is under challenge in these two appeals, it would be necessary for this Court to state few facts also. Plaintiff /BBMP has claimed relief of permanent injunction in respect of Sy.Nos.44 and 380 to an extent of 2 acres 12 guntas. Records produced by plaintiff before the trial Court and particularly order passed by the Government of Karnataka - Revenue Department, dated 17.06.2009, would clearly indicate that entire Sy.Nos.44 and 380 came to be transferred by the Revenue Department - Government of Karnataka to BBMP for the purposes of it being used as a playground. Pursuant to same, plaintiff has fenced the property and installed a name board also and same has been maintained by the plaintiff as such. It is because of this precise reason, trial Court has held that under Section 174 of the Karnataka Municipal Corporation Act, 1976, open places and playgrounds situated within the limits of BBMP being the properties belonging to BBMP, have to be maintained by them as such and accordingly granted an order of temporary injunction in favour of plaintiff, which cannot be construed as one suffering from any material irregularity 37 OS No.26693/2011 or trial Court having committed any illegality while undertaking such an exercise".
Also submission made by the Founder Trustee of the defendant-Trust who is DW.1 in person before the court during hearing of the appeals has been recorded at para-7 page-8 of the order marked at Ex.P.1 which has been culled out above. As per the submission made by D.W.1 which has been placed on record in the said order, D.W.1 has submitted that defendant No.1 does not lay any claim in respect of the suit schedule property. Therefore, defendant has no right whatsoever over the suit schedule property. When that is so, ADLR report which has been accepted in the above said appeal proceedings shows that the suit schedule property has been fenced with the chain link fencing and the property claimed by the defendant falls out side of the suit schedule property. Although ADLR 38 OS No.26693/2011 report is not available before this court, order passed by the High Court of Karnataka, Bengaluru in MFA No. 3069/2012 c/w. 3070/2012 on 9.10.2014 which is marked at Ex.P.1 shows that the ADLR report has been accepted in the appeal proceedings as above. In view of this only point which remains to be settled under this issue is whether the suit property was vacant as on the date of the suit or whether by hat time defendant had already completed the construction of the school building therein.
17. D.W.1 in his cross examination claims that after defendant put up school building plaintiff has put up chain link fencing around the same. He has further stated that earlier to filing of the suit itself defendant had put up construction of the school building. Defendant being a Trust, when he was asked as to the date of commencement of the work of construction and cost incurred and the 39 OS No.26693/2011 account related to the same, however, DW.1 has not given specific answers. His statement on Page-8 of his cross examination as follows:-
" I do not remember when we started construction and when we completed it. It is true to suggest that we mention the construction expenses in our Book of Account. It is false to suggest that after the plaintiff filed this suit, the defendants started construction work in the suit property. It is false to suggest that after the suit was filed we commenced the construction work and completed construction of building in the suit property".
As per the above statement DW.1 states that he does not remember when defendant started construction and when completed the constriction, but admits that defendant trust mentions construction expenses in its book of account. However, Defendant has not chosen to produce its books of account or any other material to show that the construction had been completed prior to the 40 OS No.26693/2011 institution of the suit. It is an admitted fact that the plaintiff has filed a Miscellaneous petition for taking action against the defendant for putting up the construction in disobedience to the interim order. On page-9 of the cross examination DW.1 admits the said fact. Defendant being a Trust could have produced documentary materials before the court to show that construction in question had been made prior to the institution of the suit itself. However, defendant has not bothered to produce any material to substantiate the same.
18. In the cross examination of PW.2 nothing has been elicited on behalf of defendant to show that defendant had put up construction prior to institution of this suit. Instead P.W.2 has reiterated in his cross examination that after the suit was filed, by violating interim order of injunction which was in force, defendant 41 OS No.26693/2011 has put up construction and hence plaintiff has filed Misc. Petition regarding the said disobedience. Therefore, there is no admission elicited from the mouth of the plaintiff's witness to support the defence put forth that too during the evidence adduced by the defendant.
19. In this circumstance, para-7 of the written statement of defendant requires to be reconsidered. While answering the plaint averments at para-11 that defendant on the wee hours of 21/22-9-2011 stealthy dug a pit in a portion of the suit property, and plaintiff lodged the complaint to the police too. Defendant states that it did not dig pit in the Plaintiff's suit property, but defendant rightly dug in its own property during day time and then states that the plaintiff lodged complaint to the police and the police under the pressure of the plaintiff asked the defendant to stop work. This shows that right before the 42 OS No.26693/2011 suit was filed, defendant tried to dig up a pit and plaintiff lodged the complaint to the police and police asked the defendant to stop work. Now if these statements in the written statement at para-7 are considered along with ADLR report referred to in Ex.P.1 and also D.W.1's own evidence in the cross examination that defendant has put up construction of the building within the chain linked fence area of the property which is the suit property, it becomes amply clear that the suit schedule property was vacant as on the date of the suit and subsequently defendant has put up construction in question. Hence, I am of opinion that as on the date of the suit plaintiff was in possession of the suit schedule property. Mere digging of a pit/excavation for foundation by the defendant in the suit property will not constitute settled possession of the defendant in the suit property, that too when admittedly 43 OS No.26693/2011 upon the complaint submitted by the plaintiff, the defendant had been made to stop the work. The defendant has no where in its written statement has claimed that it had already put up construction. Therefore, I am of the view that the plaintiff has proved its lawful possession of the suit schedule property as on the date of the suit. Consequently, Issue No.1 is answered in the affirmative.
20.Issue Nos.2 and 3:- Plaintiff has proved its lawful possession of the suit schedule property as on the date of the suit. In view of the ADLR report referred to in Ex.P.1 which has been accepted therein, identity of the suit property is clearly established and also said report shows that defendant's C.A.Site No.1 or C.A.Site No.2 (as claimed now) in Survey Number- 179/3 does not fall within the suit schedule property. When that is so, above discussed 44 OS No.26693/2011 evidence and documentary material show that defendant has actually tried to dig foundation in the suit schedule property although claims that the same was dug in defendant's C.A.Site in Survey Number-179/3. Defendant admits that it was digging foundation, but for claiming that same was being done in its CA site. But, the material on record shows that defendant has dig foundation earlier to filing of the suit in the suit schedule property belonging to the plaintiff. Therefore, interference by the defendant with plaintiff's possession of the suit schedule property is established.
21. Now, question is whether plaintiff is entitled to decree of permanent injunction ie., when defendant has put up construction of a building during the pendency of the suit. Suit has been instituted on 26.09.2011. On 28.09.2011 itself ad-interim order of temporary injunction 45 OS No.26693/2011 as prayed in IA No.I has been granted against the defendant thereby restraining the defendant from interfering with plaintiff's possession of the suit schedule property. Thereafter, defendant has filed objections to the same and also IA No.3 for vacating interim order, but by order dtd. 3.1.2012 I.A of the plaintiff under Order 39 Rule-1 and 2 of the the Civil Procedure Code has been allowed and IA No.3 of the defendant under Order 39 Rul3 4 of the the Civil Procedure Code has been dismissed by confirming the ad-interim order and restraining the defendant from interfering with plaintiff's possession of the suit schedule property till disposal of the suit. Defendant has challenged the above said order by filing two M.F.As as per Ex.P.1 and by the said order as per Ex.P.1, appeals of the defendant have been dismissed. This shows that right from the beginning of the suit plaintiff 46 OS No.26693/2011 has been enjoying the order of temporary injunction till disposal of the suit against the defendant. During the hearing of the above said M.F.As on 24.03.2014 an interim order had been passed therein which has been culled out at para-6 as follows:-
" 6. This court while considering the rival contentions of the parties by order dtd. 24.03.2014 had passed the following order:-
It is made clear that the respondent shall not observation come in the way of the appellant constructing the building in Sy.No.179/3. It is further made clear that the appellant observation shall not construct the building over Sy.No.44 of Nagarabhavi Village and Sy.No.380 of Kempapura Agrahara Village.
The respondent-BBMP shall get the area surveyed to demarcate Sy.No.179/3 of CA Site No.1 of GKW Layout and Sy.No.44 of Nagarabhavi Agrahara Village in the presence of the appellant.
It is also made clear that the appellant shall demolish the building under construction in case if the construction is ultimately found to be made on Sy.No.44 of Nagarabhavi Village and Sy.No.380 of Kempapura Agrahara Village. The appellant shall not claim equity in 47 OS No.26693/2011 case if the appellant has encroached upon those properties.
The concerned ADLR shall complete the survey work within ten days."
So, by the above said order, plaintiff was directed not to interfere with the construction work of the defendant of its building in Survey Number-179/3 by making it clear that defendant should not construct building on the suit schedule property and further that the defendant should demolish the building under construction in case if the construction is ultimately found to be made in the suit schedule property and thus, ADLR was directed to complete survey work within 10 days. After such interim order was passed on 24.03.2014, Misc. First Appeals have been dismissed on 9.10.2014. In the interregnum it is clear that defendant has put up the construction. However, as per the ADLR report which is noted in the final order 48 OS No.26693/2011 passed in the above appeals which is produced at Ex.P.1, suit schedule property has been fenced on all sides with chain link fencing and defendant property in Survey Number- 179/3 is not situated within the chain link area of the suit property. But, defendant/DW.1 categorically admits in his cross examination that defendant has put up construction of school building within the chain linked area and he has also admitted the photos shown to him except for claiming that construction had been put up earlier to filing of the suit and also that chain link fence was put up by the plaintiff after defendant completed the construction of the building. Said part of the defence has not been proved in the case. It is very clear that construction has been put up by the defendant subsequent to filing of the suit when there was interim order of injunction in force in favour of the plaintiff i.e., by violating the interim order of 49 OS No.26693/2011 injunction granted in the case. In view of the same, direction given on 24.03.2014 in Misc. First Appeal Nos. 3069-3070/2012 which is reproduced above will have to be given effect to, as according to it defendant is liable to demolish the building as the same has been found to have been put up in the suit schedule property and not in Survey Number-179/3. In this regard, even a decision of the Apex court in the case of Delhi Development Authority Vs. Skipper Construction, reported in (1996) 4 SCC 622, may be taken note off. In the said decision it has been held that in disobedience to the order of injunction if defendant dispossessed the plaintiff, then court is required to restore the possession to the plaintiff irrespective of procedural and technical objections. In this case, there is direction of the High Court of Karnataka, Bengaluru as per Order dtd. 24.03.2014 to the defendant that it should 50 OS No.26693/2011 demolish the building if same is found to be made in the suit schedule property. Hence, in addition to granting order of permanent injunction, facts of this case requires issuing mandatory injunction to direct the defendant to demolish the building constructed by it in the suit schedule property and hand over the vacant possession of the suit property to the plaintiff. Consequently, Issue Nos.2 and 3 are answered in the affirmative.
22. Issue No.4 :- For the reasons stated above, I proceed to pass the following :-
ORDER Suit of the plaintiff is hereby decreed with cost, as under:-
Defendant is hereby directed to demolish the building constructed in the 51 OS No.26693/2011 suit schedule property and hand over vacant possession of the suit schedule property to the plaintiff within a period of 3 (three) months from the date of this order. Failing which, plaintiff is reserved liberty to execute the decree through court process and get the building in the suit property demolished and recover vacant possession of the suit schedule property and also recover the costs of the same from the defendant.
Consequently, further by an order of of permanent injunction, Defendant, it's agents, henchmen or any other person/s claiming thorough or under it are hereby 52 OS No.26693/2011 restrained from interfering with plaintiff's peaceful possession and enjoyment of the suit schedule property.
Draw decree accordingly.
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(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 18 th day of April, 2022)
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(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.53
OS No.26693/2011 ANNEXURE
1. List of witnesses examined for the plaintiff:
P.W.1 Sri.H.Jannappa, Joint Commissioner (Estate) P.W.2 Sri.Yeshwanth Raj.M., A.R.O
2. List of witnesses examined for defendant:-
D.W.1 Sri.B.V.Putte Gowda D.W.2 Sri.Manjunath.L.
3. List of documents exhibited for the plaintiff:
Ex.P.1 Certified copy of the order dtd
9.10.2014 in MFA No.3069-70/2012
Ex.P.2 Certified copy of the Village Map of
Kempapura Agrahara
Ex.P.3 Certified copy of the Village Map of
Nagarabhavi.06.2011
Ex.P.4 Certified copy of the Judgment dtd.
31.3.2011 in OS No.1251/2001
Ex.P.5-6 Photographs
Ex.P.7 Certified copy of the complaint dtd.
14.03.2014.
Ex.P.8 Certified copy of the Acknowledgment
54
OS No.26693/2011
Ex.P.9-19 Certified copy of the Photos of the suit
property.
4. List of documents exhibited for defendant:
Ex.D.1 Original Allotment Letter dtd.
13.11.2006
Ex.D.2 Approved Plan
Ex.D-3 Attested copy of Plan sanctioned
certificate
Ex.D.4 Attested copy of C.A.Site Lease
Agreement dtd. 14.03.2007
Ex.D.5 Representation dtd. 24.10.2019
Ex.D.6 Special Power of Attorney
Ex.D.7 On line Certified copy of the
Rectification Deed dtd. 22.01.2005
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
Mayo Hall, Bengaluru.
55
OS No.26693/2011