Bangalore District Court
Smt.Savithramma vs The Bangalore Development Authority on 29 July, 2016
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT: SRI.BASAVARAJ B.COM., LL.M.
XLI Addl. City Civil Judge
Dated this the 29th day of July 2016
O.S.No.8977/2006
PLAINTIFF : Smt.Savithramma
W/o Late Sanjeevappa
Aged about 60 years
R/at No.577, Mehgala Beedhi
Kengeri
Bangalore-560 060
(By Sri.D.S.Jayaraj, Advocate)
V/s.
Defendant/s : 1. The Bangalore Development Authority
T.Chowdaiah Road
Bangalore
Rep. by Commissioner
2. The Bangalore Mahanagara Palike
Narasimharaja Road
Rep. by Commissioner
Bangalore
3. B.S.Siddappa
S/o N.S.Boregowda
Aged about 49 years
R/at D.No.842
Byraveswara Nilaya
14th Main, 6th Cross
2 OS.8977/2006
Bank Colony
Hanumanthanagar
Bangalore.
(D1 By Sri.K.V.Keshava.,
D2 By Sri.K.N.Mohan Rao,
D3 By Sri.H.E.Gundegowda., Advocate)
Date of Institution of the Suit: 12.10.2006
Nature of the suit
(Suit on Pronote, suit for Declaration, Mandatory
declaration & possession, suit injunction & Permanent
for injunction) injunction
Date of commencement of 24.08.2010
recording of evidence:
Date on which the Judgment 29.07.2016
was pronounced:
Total Duration: Year/s Month/s Day/s
09 09 17
JUDGMENT
The plaintiff filed this suit for declaration declaring the reconveyance of the schedule property by the 1st defendant in favour of the defendant No.3 is void and not binding on the plaintiff, for mandatory injunction directing the 1st defendant to reconvey the schedule property in favour of the plaintiff 3 OS.8977/2006 and for permanent injunction restraining the defendant No.3, his agents, servants, administrators, henchmen or any other persons claiming under or through him from altering the nature of the schedule property and from alienating the schedule property in favour of third parties.
2. The suit schedule property as described in the plaint is as under:-
SCHEDULE All that piece and parcel of the property bearing Sy.No.10/2 situated at Srinivasanagar, Bangalore (formerly called as Gerahalli, Kasaba Hobli, Bangalore North, Bangalore) measuring 3922 sq. ft. and bounded on:
East by : Road
West by : Shyanuboga's land
North by : Road
South by : R.Venkataramanappa S.R.
Lakkamma's land
3. The plaint averments in brief are as under:
The plaintiff was the owner in possession and enjoyment of the site formed in land bearing Sy.No.10/2 4 OS.8977/2006 situated at Srinivasanagar, Bangalore (formerly called as Gerahalli, Kasaba Hobli, Bangalore North, Bangalore) measuring east to west on northern side 215 feet, on southern side 17 feet and in all measuring 3922 sq.ft. The plaintiff has purchased the said property under registered sale deed dated 17.11.1962 executed by Seenapa S/o Venkataramanappa. In pursuance of the same, the possession of the property was delivered in favour of the plaintiff. The plaintiff was in possession and enjoyment of the same as absolute owner thereof.
The plaintiff has sold an extent of 40 X 17 each out of the said property in favour of S.G.Gopal and Narasimhaiah under registered sale deeds dated 07.10.1971. So also the plaintiff has sold an extent of 282 sq. ft. i.e. 16.6X17 out of the said property in favour of Gangamma under registered sale deed dated 04.12.1974. Further, the plaintiff has also sold an extent of 680 sq.ft. i.e. 40 X 17 in favour of P.Gopal under registered sale deed dated 06.07.1971. 5 OS.8977/2006
Accordingly, the possession of the properties was delivered in favour of the respective purchasers and they are in possession and enjoyment of their respective properties purchased under the sale deeds referred to supra.
Thus, the plaintiff has retained an extent of 835 sq.ft. out of the said property, hereinafter called as the schedule property.
Since the schedule property is intact and not transacted it is the absolute property of the plaintiff. It is the plaintiff alone is entitled to enjoy the schedule property as absolute owner thereof. The 1st defendant initiated acquisition proceedings for formation of "Srinivas Nagar Bank Colony". Since of the lands situated at Gerahalli are developed and occupied the 1st defendant has implemented "Re-conveyance Scheme'. According to Re-conveyance Scheme the parties who have developed the property and in occupation of the same are entitled for reconveyance of the properties in 6 OS.8977/2006 their favour. In this regard, the parties have to make necessary applications before the 1st defendant along with necessary documents seeking re-conveyance of the property. Under the said scheme it is only the persons who are owners and in possession of the properties are entitled for re-conveyance of the properties in their favour.
The 1st defendant has also conveyed the properties in favour of various parties and developed the layout. The 1st defendant has also assigned numbers to the sites under the scheme. The parties who have purchased the sites referred supra have already availed the benefit of the said scheme. The 1st defendant has also executed necessary documents reconveying the respective portions. Similarly the plaintiff is also entitled for the benefit of the scheme and the 1st defendant has to take necessary steps to reconvey the schedule property in favour of the plaintiff. In this regard, the plaintiff has also made several applications 7 OS.8977/2006 and the same are pending for consideration. Unfortunately, the 1st defendant has not taken any steps without any reasons.
The 3rd defendant is claiming owner of the site bearing No.10 in Sy.No.10/1A, Sy.No.10/2 situated at Srinivasnagar, Bangalore (formerly called as Gerahalli, Kasaba Hobli, Bangalore North, Bangalore) measuring east to west: 30 feet and North to South: 45 feet alleged to have purchased under the registered sale deed dated 31.01.1981 executed by N.R.Narayana Shetty S/o Nama Ramaiah Shetty. The property of the 3rd defendant alleged to be purchased is a different property from the property of the plaintiff. The defendant No.3 is also entitled for the benefit of re-conveyance scheme in respect of the property covered under the sale deed. The property of the defendant No.3 and the property of the plaintiff is at a distance of more than 10 ft. and in between the property of the plaintiff and defendant No.3 there is conservancy lane. As such, the defendant N.3 8 OS.8977/2006 has to restrict his claim in respect of the property covered under the sale deed. The defendant No.3 is not entitled to seek reconveyance of the property in respect of the property of the plaintiff. Contrary to this, the defendant No.3 seems to have made a request for reconveyance of the property. Unfortunately, without looking into the documents the 1st defendant has reconveyed the property in favour of the defendant No.3. The said fact came to knowledge of the plaintiff when the defendant No.3 encroached upon the schedule property and started construction. At this juncture the plaintiff enquired about the proprietary of the defendant No.3 in the schedule property. At this juncture, the defendant No.3 informed about the reconveyance of the property in his favour. Immediately the plaintiff has requested the 1st defendant to reconvey the schedule property in his favour. But the defendant No.1 has not taken any steps.
9 OS.8977/2006
The schedule property is situated in between the properties conveyed in favour of Thammaiah. This itself suffice to show that the 1st defendant is not entitled to reconvey the schedule property in favour of the defendant No.3, which is situated in between the properties conveyed in favour of Thammaiah and K.Gangamma. The property of the 3rd defendant is situated backside of the property, which is now conveyed in favour of Nagarathna. Under the circumstances, the property reconveyed in favour of the defendant No.3 is liable to be cancelled and the same has to be reconveyed only in favour of the plaintiff. The plaintiff has also applied for the documents for having reconveyed the property in favour of the 3rd defendant. The defendant No.3 is also entitled for reconveyance of the property which is situated back side of the schedule property. Contrary to this the defendant No.3 got managed to reconvey the schedule property in his 10 OS.8977/2006 favour of which he is not entitled. It is only the plaintiff is entitled for reconveyance of the schedule property.
The defendant No.3 tried to put up construction on 20.09.2006, which was resisted by the plaintiff herein. The defendant No.3 having ascertained that the plaintiff has taken action seeking possession of the schedule trying to put up construction very briskly. The defendant is backed by anti social and goonda elements. The plaintiff is not in a position to resist the illegal and high handed activities of the defendant.
The plaintiff also learnt that the defendant No.3 is also trying to alienate the schedule property with an intention to deprive the right of the plaintiff over the schedule property. In this regard the plaintiff reliably learnt that the defendant No.3 is contacting several persons and negotiating with them to alienate the schedule property. The sole intention of the defendant No.3 is to create multiplicity of proceedings thereby deprive the legitimate right of the plaintiff over the 11 OS.8977/2006 schedule property. The defendant No.3 has brought one Jagadish R/o Kengeri to the spot on 25.09.2006 and negotiating with him to alienate the property. The sole intention of the defendant No.3 is to alienate the schedule property for his illegal gain and thereby cause loss to the plaintiff. The fact that the schedule property absolutely belongs to the plaintiff is very well within the knowledge of the defendant No.3. Inspite of it, the defendant No.3 is trying to alienate the schedule property for which he is not at all entitled for. Hence, prays to decree the suit.
4. The defendant No.1 appeared through its counsel and filed written statement contending that the plaintiff is responsible and liable for the unauthorized development of the layout by defeating the provision of acquisition as the Sy.No.10/2 of Gerahalli measuring 30 guntas has been acquired by the then City Improvement Trust Board for formation of layout called Banashankari III Stage vide 12 OS.8977/2006 preliminary notification No.ADM/A10(S) 3/64 dated 9.5.1968. In this regard final notification was also passed on 28th October 1971 vide No.HMA 106 MNJ 71 by acquiring the land bearing Sy.No.10/2 measuring 30 guntas. Because of the unauthorized development of the land the same is defeating the provisions of acquisition and forcing the proceedings to be diverted as reconveyance against the planning norms of the C.D.P. Further the plaintiff is also suppressed the material facts before this court as the plaintiff so far failed to furnish the complete identity of the property sought to be reconveyed before the first defendant. Hence, on this ground alone the suit is liable to be dismissed. Except these contentions, all other allegations are denied as false. Hence, prays to dismiss the suit.
5. Though the defendant No.2 appeared through its counsel, but did not file written statement. 13 OS.8977/2006
6. The 3rd defendant appeared through his counsel and filed written statement contending that in the plaint in so far as having purchased the property mentioned under the sale deed dated 17.11.1962 and its measurement and boundaries and the property No. etc. are all incorrect and wrong and the plaintiff has not acquired the property as described in the suit schedule under the alleged sale deed and further the plaintiff is not in possession and enjoyment of the suit schedule property as on the date of filing the suit. With regard to various sale deeds said to have been executed by the plaintiff to different persons on different dates in respect of the portion of the schedule property is concerned are not within the knowledge of this defendant and this defendant is not a party to the said transaction and this defendant specifically denied that the plaintiff has not retained any property as averred in the plaint, after alienating the portions out of the schedule property and no revenue documents are standing in the name of the plaintiff in respect of the alleged land retained by the plaintiff nor the plaintiff 14 OS.8977/2006 has demarcated the alleged property retained by her by indicating the actual measurements and the boundaries of the same, hence the statement made by the plaintiff is only on imaginary grounds and not supported from any documentary proof.
As alleged if an extent of 3,322 sq. ft. were to be sold by the plaintiff out of the total extent measuring 3,922 sq.ft. the left out area is about 600 sq.ft. and not 835 sq.ft. as alleged in the plaint and further it is specifically denied the measurement given by the plaintiff for having sold an ex tent of land measuring 3,322 sq.ft. is not based on any valid documents, hence the measurement given by the plaintiff are all incorrect and imaginary one.
Since the plaintiff is not holding any right, title or incorrect or possession over the suit schedule property. The plaintiff has no manner of any right to seek reconveyance from the Bangalore Development Authority in respect of suit schedule in respect of the alleged remaining portion and further the plaintiff appears to have filed an application before 15 OS.8977/2006 the 1st defendant Bangalore Development Authority in respect of the non-existing property on baseless allegations on the ground that the property of this defendant pertains to suit schedule property of the plaintiff though the property of this defendant and the alleged property of the plaintiff are totally different and distinct.
This defendant is the owner in lawful possession and enjoyment of site No.10 carved in Sy.No.10/1A of Gerehalli Village and this defendant has purchased the same under the registered sale deed dated 31.01.1981 from one N.R.Narayana Setty and the vendor of this defendant had purchased the land measuring 1 acre in Sy.No.10/1A of Gerehalli Village under a registered sale deed dated 14.05.1965 and the averments made by the plaintiff in the same para clearly admitted by the plaintiff that the property of this defendant and the alleged property of the plaintiff are not one and the same and this defendant is entitled to seek for reconveyance in respect of his property, whereas the other allegations made by the plaintiff are made only to suit the claim of the plaintiff 16 OS.8977/2006 and this defendant never obtained any reconveyance from the 1st defendant in respect of the plaintiff's property and further the plaintiff is not owning any land on any side of the property of this defendant, hence the question of encroaching up on the schedule property do not arise and further the plaintiff has not specifically stated on which side of her property the defendant's property is situated hence, the pleadings made by the plaintiff is vague and imaginary and baseless one.
The 1st defendant by considering the lawful right of this defendant to get it reconveyed in respect of his property, based on the documentary proof they have considered the request of this defendant in accordance with law and the plaintiff has no manner of right to dispute the same as she is in no way concerned with the property of this defendant.
The property of this defendant is not in between the property of Thammaiah and Gangamma and the said persons are not the adjoining owners of the property of this defendant and the statement made by the plaintiff are all contradictory 17 OS.8977/2006 one and this court has no jurisdiction to declare that the reconveyance made by the 1st defendant in respect of his property as void and to direct the 1st defendant to reconvey the property of this defendant in favour of the plaintiff since the property in respect of which reconveyance made in favour of this defendant is different from the alleged property of the plaintiff.
The suit is not maintainable, consequentially the plaintiff is not entitled for any relief as sought for in the plaint and this court has no jurisdiction to grant any relief, since the title of the property of this defendant is not disputed by challenging the registered sale deed standing in the name of this defendant and this defendant has been wrongly made as party on this ground also the suit is liable to be dismissed.
The boundaries shown in the plaint schedule are all incorrect and no such property is existence as on the date of filing the suit. The plaintiff has sought for the relief in respect of entire extent alleged to have been purchased under the sale deed dated 17.11.1962 and not given the correct 18 OS.8977/2006 measurements and boundaries of the alleged extent retained by the plaintiff after having sold different extent to different persons out of the suit schedule property. Except the above contentions, the defendant No.3 denied remaining plaint averments. So, prays to dismiss the suit.
7. On the basis of the above pleadings of both the parties, the following issues have been framed by my learned predecessor in office:-
1) zÁªÁ¸ÀévÀÛ£ÀÄß ªÀÄgÀĪÀÄAdÆgÀÄ ªÀiÁr 1£Éà ¥ÀæwªÁ¢ 3£Éà ¥ÀæwªÁ¢UÉ §gÉzÀÄPÉÆnÖgÀĪÀÅzÀÄ ±ÀÆ£Àå ªÀÄvÀÄÛ CªÀgÀ£ÀÄß §zÀÞUÉƽ¸ÀĪÀÅ¢®èªÉAzÀÄ ªÁ¢ ¸Á©ÃvÀÄ ªÀiÁqÀÄvÁÛgÉAiÉÄ?
2) PÉÆÃjgÀĪÀ WÉÆõÀuÉAiÀÄ£ÀÄß ¥ÀqAÉ iÀÄ®Ä ªÁ¢UÉ ºÀQÌzÉAiÉÄ?
3) PÉÆÃjgÀĪÀ DYõÁÕvÀgÀ ¤§ðAzÀsPÁYÕÉAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä ªÁ¢UÉ ºÀQÌzÉAiÉÄ?
4) PÉÄÁÃjgÀĪÀ DYõÁÕvÀgÀ ¤§ðAzÀPs ÁYÕÉAiÀÄ£ÀÄß ¥ÀqÉAiÀÄ®Ä ªÁ¢UÉ ºÀQÌzÉAiÉÄ?
5) AiÀiÁªÀ rQæ AiÀiÁ DYÕÉUÁV?
8. The plaintiff in order to prove the case has examined herself as PW-1 and got marked eight documents at 19 OS.8977/2006 Ex.P.1 to Ex.P.8. The defendant No.1 examined officials of the Bangalore Development Authority as DW1 and DW3 and got marked documents at Ex.D.1 and D.2. The defendant No.3 examined himself as DW2 and got marked documents at Ex.D.3 to D.17.
9. Heard the arguments of the plaintiff and defendant No.1's counsel. Inspite of sufficient time the Advocate for the defendant No.2 not submitted arguments. The learned Advocate for defendant No.3 has filed his written arguments. Perused the records of the case.
10. My findings to the above issues are as under:
Issue No.1 : Do not arise for
consideration
Issue No.2 to 4 : In the negative
Issue No.5 : As per the final order,
for the following;
20 OS.8977/2006
REASONS
11. ISSUE No.1: The plaintiff filed her affidavit in
lieu of examination in chief as P.W.1, wherein she has reiterated the averments made in the plaint. In support of her case, the plaintiff has also produced Exs.P.1 to 8. Ex.P.1 to P.5 and P.8 are certified copies of sale deeds, Ex.P.6 is encumbrance certificate and Ex.P.7 is office copy of legal notice.
12. The FDA, Reconvey Section and SDA, A.C.(R & R) Section of the defendant filed their affidavit in lieu of examination-in-chief of DW1 and DW3 and got marked Ex.D.1 Preliminary Notification and Ex.D.2 Final Notification. The defendant No.3 filed his affidavit in lieu of examination- in-chief of DW2 and got marked Ex.D.3 Letter of lead in respect of house property to State Bank of Mysore, Ex.D.4 confirmation letter, Ex.D.5 is original sale deed dated 31.01.1981, Ex.D.6 is Bangalore Development Authority Endorsement, Ex.D.7 is katha letter, Ex.D.8 to D.10 21 OS.8977/2006 encumbrance certificates, Ex.D.11 katha certificate, Ex.D.12 notice issued by BMP, Ex.D.13 is Thiluvalike pathra, Ex.D.14 is approval letter, Ex.D.15 is building blue sketch,. Ex.D.16 and D.17 are photographs.
13. It is the definite case of the plaintiff that he was the owner in possession and enjoyment of site totally measuring 3922 sq.ft. formed in the land bearing Sy.No.10/2 of Srinivasanagar, Bangalore formally called as Gerahalli, Bangalore North, Bangalore under the Ex.P.1. Out of this he has sold 680 sq.ft. each in favour of S.G.Gopal and Narasimhaiah under the registered sale deeds dated 07.10.1971, he has sold 282 sq.ft. in favour of Gangamma under the registered sale deed dated 04.12.1974 and sold 680 sq.ft. in favour of P.Gopal under the registered sale deed dated 06.07.1971 and retained 835 sq.ft., which is the suit schedule property and he is entitle to enjoy the same as absolute owner thereof. It is further case of the plaintiff that the 1st defendant initiated acquisition proceedings for 22 OS.8977/2006 formation of Srinivasnagar Bank Colony and since the land situated at Gerahalli are developed and occupied, the 1st defendant has implemented reconveyance scheme to the parties, who have developed the property and in occupation of the same and under this scheme it is only the persons, who are the owners and in possession of the properties are entitle for reconveyance of the properties in their favour. It is further case of the plaintiff that the 1st defendant has executed necessary documents reconveying the respective portions and similarly the plaintiff is entitle for the benefit of the scheme and the 1st defendant has to take necessary steps to reconvey the schedule property in favour of him and in this regard he has made several applications, which are pending for consideration. It is further case of the plaintiff that the defendant No.3 is claiming that he is the owner of the site bearing No.10 in Sy.No.10/1A and Sy.No.10/2 of Srinivasanagar measuring 30 X 45 feet and he is entitle for the benefits of reconveyance scheme in respect of his property and there is more than 10 ft. distance in between the suit 23 OS.8977/2006 schedule property of plaintiff and the defendant's property, but unfortunately without looking into documents, the 1st defendant reconveyed the suit schedule property in favour of the defendant No.3.
14. Against the above averments stated in the plaint, the plaintiff has shown the suit schedule property is the site totally measuring 3922 sq.ft. and the boundaries mentioned in Ex.P.1. When the plaintiff specifically contends that after the sale of portions of property purchased from him, then he has to show the remaining portion of site, which is measuring 835 sq.ft. along with its boundaries as the suit schedule property. The plaintiff failed to furnish the complete identity of the property. Hence, the suit of the plaintiff has become a building without foundation. So also when the plaintiff contends that the 1st defendant reconveyed site measuring 835 sq.ft. to the defendant No.3 and sought to declare that the reconveyance of the suit schedule property in favour of the defendant No.3 by the defendant No.1 is void and not 24 OS.8977/2006 binding and to direct the 1st defendant to reconvey the suit schedule property, then the plaintiff has to furnish under which document, the suit schedule property is reconveyed and the date of the document. Hence, in the absence of proper and correct description of the suit schedule property and also the nature and date of the document declared to be null and void, the suit of the plaintiff fails. So, under the circumstances the question of considering that the reconveyance of the suit schedule property by the 1st defendant in favour of the 3rd defendant is void and not binding on the plaintiff do not arise for consideration. Hence, it is not necessary to go into the other details of the oral and documentary evidence of both the parties. So, Issue No.1 is answered as do not arise for consideration
15. ISSUE NOs.2 TO 4: In view of my findings on Issue No.1 and against the plaintiff the suit of the plaintiff is liable to be dismissed with costs. Hence, Issue Nos.2 to 4 are answered in the negative.
25 OS.8977/2006
16. ISSUE NO.5:- In the result, I proceed to pass the following:-
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, thereafter corrected and then pronounced by me in the open court, on this the 29th day of July 2016).
( BASAVARAJ ) XLI ADDL.CITY CIVIL JUDGE BANGALORE ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
PW1 : Savithramma
b) Defendant's side:
DW1 : Mahadeva
DW2 : B.S.Siddappa
26 OS.8977/2006
DW3 : Sumathi Narayanaswamy
II. List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 : C/c of sale deed executed by
Seenappa
Ex.P.2 : C/c of sale deed executed in favour
of S.G.Gopala
Ex.P.3 : C/c of sale deed executed in favour
of Rangamma
Ex.P.4 : C/c of sale deed executed in favour
of Narasimhaiah
Ex.P.5 : C/c of sale deed executed in favour
of P.Gopal
Ex.P.6 : Encumbrance Certificate
Ex.P.7 : Office copy of legal notice
Ex.P.8 : C/c of Sale deed
b)defendants side :
Ex.D.1 : Pre-Notification
Ex.D.2 : Final Notification
Ex.D.3 : Letter of lead in respect of house
property to State Bank of Mysore
Ex.D.4 : Confirmation letter
27 OS.8977/2006
Ex.D.5 : original sale deed dated 31.01.1981
Ex.D.6 : Bangalore Development Authority
Endorsement
Ex.D.7 : katha letter
Ex.D.8 to : Encumbrance Certificates
10
Ex.D.11 : katha certificate
Ex.D.12 : Notice issued by BMP
Ex.D.13 : Thiluvalike pathra
Ex.D.14 : Approval letter
Ex.D.15 : Building blue sketch
Ex.D.16 & : Photographs
17
( BASAVARAJ )
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
28 OS.8977/2006