Bangalore District Court
Kum.Shobha vs The Commissioner on 9 April, 2018
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 9th day of April 2018
O.S.No.1768/2015
PLAINTIFFS : 1. Kum.Shobha,
D/o Late Honnegowda
Aged about 32 years
R/at No.864, 17th Cross,
D. Group Employees Layout,
Vishwaneedam Post, Bengaluru 560091
2. Smt.Sowbhagya G.
W/o Suresh J.
Aged about 35 years
R/at No.F-782, 4th Cross,
1st Stage, Bharathnagar,
Magadi Main Road,
Vishwaneedam Post,
Bengaluru 560091
(By Sri.B.G., Advocate)
V/s.
DEFENDANTS : 1. The Commissioner,
Bangalore Development Authority
2. The Deputy Commissioner
Bangalore Development Authority
3. The Special Land Acquisition Officer,
Bangalore Development Authority
2 O.S. No.1768/2015
4. The Town Plan Member,
Bangalore Development Authority
5. The Engineering Member,
Bangalore Development Authority
6. The Secretary,
Bangalore Development Authority
7. The Superintendent of Police, Task
Force,
Bangalore Development Authority
The defendant No.1 to 7 are
r/at office of the Bangalore
Development Authority,
Sankey Tank Road Park,
Bangalore 560020
8. The Executive Engineer,
No.2, Division,
Bangalore Development Authority,
East Sub-Division, Vijayanagar,
Bangalore 560040
9. The Assistant Executive Engineer,
No.2, Division,
Bangalore Development Authority,
East Sub-Division, Vijaynagar,
Bangalore 560040
(By Sri.K.K.S., Advocate)
Date of Institution of the Suit: 23.02.2015
Nature of the suit
(Suit on Pronote, suit for Permanent Injunction
3 O.S. No.1768/2015
declaration & possession, suit
for injunction)
Date of commencement of 22.04.2016
recording of evidence:
Date on which the Judgment 09.04.2018
was pronounced:
Total Duration: Year/s Month/s Day/s
03 01 16
JUDGMENT
The plaintiffs have filed this suit for Permanent Injunction to restraining the defendants or any other persons claimed under them from putting up of compound on the 'C' Schedule property denoted as per layout plan; and for cost of the suit as well as for grant such other reliefs.
2. The suit schedule properties are described in the plaint as under:
'A' SCHEDULE PROPERTY All the piece and parcel of site bearing No.1181, formed by defendant No.1 in Sir.M.Vishveshwaraiah Layout which is situated at 3rd Block, Sir.M.Vishveshwaraiah Layout, 4 O.S. No.1768/2015 Bengaluru, measuring east to west 30 feet and North to south 40 feet which is bounded on:
East by : Site No.1180
West by : Site No.1182
North by : Site No.1164
South by : Road
'B' SCHEDULE PROPERTY
All the piece and parcel of site bearing No.1178, formed by defendant No.1 in Sir.M.Vishveshwaraiah Layout which is situated at 3rd Block, Sir.M. Vishveshwaraiah Layout, Bengaluru, measuring east to west 30 feet and North to south 40 feet which is bounded on:
East by : Site No.1177
West by : Site No.1179
North by : Site No.1167
South by : Road
'C' SCHEDULE PROPERTY
All the piece and parcel of the road margin shown in the layout plan in civic amenity site marked in yellow colour denoted with A,B,C,D measuring approximately east to west 40 feet and north to south ft, which is bounded on: 5 O.S. No.1768/2015
East by : Civic amenity site
West by : Layout
North by : Road
South by : Road
3. The brief facts of the case of the Plaintiffs is that plaintiffs No.1 & 2 have purchased A & B Schedule sites respectively from its owner Smt. Manjula through the registered sale deed dated 27.06.2013 & 04.12.2013 respectively. The plaintiffs' vendor Smt. Manjula was the owner of the B schedule property by virtue of allotment made by defendant No.1 and the sale deed dated 18.06.2013 executed by defendant No.1. The plaintiffs' vendor has paid up to date property tax for A Schedule property on 22.06.2013 and therefore, the defendant No.1 has issued khatha of 'A' schedule property in the name of 1st plaintiff's vendor. The sale transaction of the plaintiff No.1 relating to A schedule property appeared in the encumbrance certificate. The plaintiffs' vendor Smt.Manjula was given A & B schedule property by the BDA as an alternative site allotted for utilization of her property for its purpose without invoking the acquisition proceedings. In the said layout plan there is no road access shown from the 6 O.S. No.1768/2015 western part of the road. In the layout plan at Annexure-J the pink coloured circle shown as civic amenity site kept by BDA. The green coloured mark shown as road by the BDA. But, the BDA has formed the sites without forming the road allotted the sites to the plaintiffs' vendor and many others. Infact there is a house in existence in the road portion shown in Green colour much prior to initiation of the acquisition proceedings and now the said owner of the house has requested the BDA to allot his house in the same place as an incentive site as he has gave up his property in favour of the BDA which is under consideration before the BDA.
When his request is considered, there is no road available for the allottees of the sites by the BDA and the BDA has to form the road at civic amenity site encircled with pink colour. Such is the case yellow colour mark made in the layout plan is only the access to the plaint schedule property which is in civic amenity site. Such being the circumstances, the defendants are now trying put up compound around the civic amenity site as stated in the pink colour including the road access shown in yellow colour. The defendants now carrying out the compound wall work by keeping 7 O.S. No.1768/2015 their men, machinery and material by taking assistance of the police without caring the request and protest made by the plaintiffs and neighboring site owners to leave C Schedule property as road portion on 20.02.2015. The plaintiffs complained with the defendants and jurisdictional police were put in vain. In which event the plaintiffs access to the schedule property is completely blocked. Now, the plaintiffs are using Yellow colored area as an ingress and egress to their property described in the schedule and in the event of blocking the said area by putting compound wall, the plaintiffs are put to great hardship, injury and untold misery. The Yellow coloured area in the civic amenity site is morefully described in the C schedule property. Hence this suit for permanent injunction in respect of C Schedule property is concerned. So, prays to decree the suit.
4. The defendants appeared before the court through its counsel and filed written statement contending that the suit is not maintainable both in law and on facts and suit is liable to be dismissed in limine. The defendants admitted that they are trying 8 O.S. No.1768/2015 to put up compound around the civic amenity site as true and correct but denied the averment that the defendants are trying to put up compound including the road access as false and stated that the intention of plaintiff is to knock off the CA site which exclusively belongs to the defendants. Defendants further stated that the plaint in which the plaintiff is claiming right is a CA site which exclusively belongs to the defendants, the defendants in order to protect the CA site from encroachment from these parties, has put up compound wall. Moreover, as per the sketch, there is no road in existence. There is no approach road as alleged by the plaintiffs in the plaint. The plaintiffs property is already a approach road as per layout plan. There is no cause of action for filing of this suit, much less the alleged one mentioned only for the purpose of filing this suit. The suit is filed on the false, frivolous and base less grounds by suppressing the material facts. Hence, prayed to dismiss the suit.
5. On the basis of the above pleadings of both the parties, the following issues have been framed:-
9 O.S. No.1768/2015
1) Whether the plaintiffs prove that they are using the 'C' suit schedule property as a road for ingress and egress to their respective A & B suit schedule properties of them as on the date of the suit?
2) Whether the plaintiffs further prove that the alleged interference by the defendants in the use of 'C' suit schedule property as a road?
3) Whether the plaintiffs are entitled to the reliefs sought for?
4) What order or decree?
6. The 1st plaintiff examined herself as PW-1 and got marked eleven documents at Ex.P.1 and Ex.P.11. The defendants examined its Assistant Engineer as DW1 and got marked one document at Ex.D.1.
7. Heard the arguments and perused the records of the case.
8. My findings to the above issues are as under:
Issue No.1 : In the negative
Issue No.2 : Does not arise for
consideration
10 O.S. No.1768/2015
Issue No.3 : In the negative
Issue No.4 : As per the final order,
for the following:
REASONS
9. ISSUE Nos.1 AND 2: Since these issues are
interconnected with each other hence they are taken together for common discussion in order to avoid repetition of facts and evidence.
10. It is the case of the plaintiffs that they are using the C Suit Schedule property as a road for ingress and egress to their respective A and B suit schedule properties of them as on the date of the suit and the defendants interfered in their use of C Schedule property as a road.
11. The learned Advocate appearing for the plaintiffs argued that the plaintiffs No.1 and 2 have purchased the A and B suit schedule sites from one Smt.Manjula under registered sale deed dated 27.6.2013 and 04.12.2013 respectively and said A and B 11 O.S. No.1768/2015 Schedule properties were allotted to the said Smt.Manjula as alternative sites in view of utilization of her property. These A and B Schedule properties situated in the Sir.M.Vishveswaraiah Layout and there is no road access shown from the western side. There is a CA site towards the western side. The defendants formed layout without forming the road allotted to the site. Though the road is shown towards the southern side of the A and B Schedule properties, but the said road is rounded one and the road claimed in the CA site, which is the suit schedule property is the short cut road for the plaintiffs to reach their respective sites. The defendants are trying to put up compound around the CA site including the road access and hence the defendants are to be restrained from using the C Schedule property as a road by the plaintiffs.
12. The learned Advocate appearing for the defendants argued that the said Smt.Manjula was allotted A and B schedule properties as alternative sites in view of acquiring her land. A and B Schedule properties have got road towards the southern side of 12 O.S. No.1768/2015 them. The plaintiffs are claiming the road in the CA site, which belongs to the defendants and the defendants have no right to claim the road in it since the suit C Schedule property is a CA site and around it the compound was constructed by the defendants. Since the suit C Schedule property is a CA site and hence question of interference by the defendants do not arise.
13. The plaintiff No.1 filed her affidavit in lieu of examination-in-chief of PW1, wherein she has reiterated the averments made in the plaint. In support of their case, the plaintiffs produced Ex.P.1 to P.11. Ex.P.1 and P.2 are the sale deeds dated 27.6.2013 and 4.12.2013, which show that the plaintiffs No.1 and 2 respectively purchased A and B schedule properties from Smt.Manjula W/o V.Krishnamurthy and to these sites towards southern side road is shown. Ex.P.3 is sale deed dated 18.6.2013, which show that the defendants sold the A Schedule property in favour of the said Smt.Manjula W/o Krishnamurthy as alternative site for acquiring her land for the purpose of forming outer ring road. Ex.P.4 is sale deed dated 13 O.S. No.1768/2015 18.6.2013, which show that the defendants sold the B Schedule property in favour of the said Smt.Manjula W/o Krishnamurthy as alternative site for acquiring her land for the purpose of forming outer ring road. Ex.P.5 is the allotment letter dated 3.6.2013 regarding allotment of A Schedule property in favour of said Smt.Manjula. Ex.P.6 is possession certificate issued to the said Smt.Manjula with respect to the A Schedule property. Ex.P.7 is khatha extract, which shows the name of the plaintiff No.1 to the A Schedule property. Ex.P.8 is tax paid receipt of the A Schedule property, which shows the name of plaintiff No.2. Ex.P.9 is tax paid receipt of A Schedule property, which shows the name of plaintiff No.2. Ex.P.10 is encumbrance certificate, which shows the name of said Manjula with respect to the A and B Schedule properties. Ex.P.11 is the blue print of Sir.M.Vishveswaraiah Layout, which shows the A and B Schedule properties and towards the western side of those properties CA site is situated.
14. The Assistant Engineer of BDA filed his affidavit in lieu of examination-in-chief of DW1, wherein he has reiterated the 14 O.S. No.1768/2015 averments made in the written statement. The defendants in support of their case produced Ex.D.1 - layout plan. When the case is posted for cross-examination of DW1, then inspite of sufficient time the DW1 not tendered himself for cross- examination and hence examination-in-chief of DW1 was expunged. So, there is no oral evidence on behalf of the defendants in this suit.
15. On perusal of the pleadings of the parties and documents produced by the plaintiffs, there is no dispute that the BDA acquired 27 guntas of land belonging to Smt.Manjula W/o V.Krishnamurthy for the purpose of ring road and in view of the same the BDA allotted suit A and B Schedule sites to the said Smt.Manjula at free of cost. There is also no dispute that the plaintiffs No.1 and 2 purchased A and B Schedule properties respectively from the said Smt.Manjula. There is also no dispute that towards the western side of A and B Schedule properties the CA site is situated. The plaintiffs are claiming the road through the said CA site showing the same as C Schedule property. 15 O.S. No.1768/2015
16. Now it has to be seen whether the plaintiffs are using the C Schedule property as a road for their ingress and egress to reach their respective A and B Schedule properties as on the date of the suit and alleged interference by the defendants. Admittedly the suit A and B Schedule properties were allotted to the said Smt.Manjula in the layout called as Sir.M.Vishveswaraiah Layout. The Ex.P.11 - blue print do not show the signature of the competent authority and also the seal of the office. So, also the Ex.P.11 only show towards western side of A and B Schedule properties CA site is situated and there is no road and in the CA site the plaintiffs are claiming the road and marking it as ABCD. Since the road shown by the plaintiffs in Ex.P.11 is the portion of the CA site and it is not the road formed at the time of formation of Sir.M.Vishveswaraiah layout and on the other hand the Ex.P.11 and the Ex.P.1 and P.2 clearly shows that the A and B Schedule properties have got road towards southern side of them and hence it cannot be said that there is a road for ingress and egress to the A and B schedule properties through the CA site, which is C Schedule property.
16 O.S. No.1768/2015
17. When I came to the conclusion that there is no road as alleged by the plaintiffs as C Schedule property, then question of considering the alleged interference by the defendants do not arise.
18. So, from the discussions made above, I am of the opinion that the plaintiffs failed to prove that they are using the C Schedule property as a road for ingress and egress to their respective A and B Schedule properties of them as on the date of suit and the alleged interference by the defendants in the use of C Schedule property as a road. Hence, Issue No.1 is answered in the negative and Issue No.2 is answered as do not arise for consideration.
19. ISSUE NO.3: In view of my findings on Issue No.1 in the negative and Issue No.2 as do not arise for consideration, the plaintiffs are not entitle for the reliefs sought for. Hence, Issue No.3 is answered in the negative.
17 O.S. No.1768/2015
20. ISSUE No.4: In the result, I proceed to pass the following :
ORDER The suit of the plaintiffs is dismissed with costs.
Draw decree accordingly.
(Dictated to the judgment writer directly on the computer, thereafter corrected and then pronounced by me in the open court, on this the 9th day of April 2018).
( BASAVARAJ ) XLI Addl. City Civil Judge, Bangalore.
ANNEXURE I.List of witnesses examined on behalf of :
a) Plaintiffs' side:
P.W.1 Kumari Shobha
b) Defendants' side:
D.W.1 Shankara Murthy M.S.
18 O.S. No.1768/2015
II.List of documents exhibited on behalf of :
a) Plaintiffs' side:
Ex.P.1 Sale deed dated 27.06.2013
Ex.P.2 Sale deed dt 04.12.2013
Ex.P.3 Sale deed dated 18.06.2013
Ex.P.4 Original allotment cum sale deed dated
18.06.2013
Ex.P.5 Allotment letter
Ex.P.6 Possession certificate
Ex.P.7 Original Khatha dated 22.06.2013
Ex.P.8 & 9 Two tax paid receipts
Ex.P.10 Encumbrance certificate
Ex.P11 Layout plan
b) Defendants' side:
Ex.D.1 Layout plan of Sir.M.Vishveswaraiah
Layout 3rd Block w
( BASAVARAJ )
XLI ADDL.CITY CIVIL JUDGE
BANGALORE