Bangalore District Court
Sri. T.S. Purushothaman vs Smt. Siddamma on 4 November, 2019
IN THE COURT OF THE LXXII ADDL. CITY
CIVIL & SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 4th day of November, 2019.
O.S.No.25013/2014
Plaintiff: Sri. T.S. Purushothaman,
Aged about 48 years,
S/o Sri. T.K. Subramani,
R/at No.M15,
"Royal Heritage",
Near TTK Tin Factory,
Old Madras Road,
Krishnarajapuram,
Bangalore560 033.
[By Sri. K.S. Sreekantha Advocate)
V/s
OS No.25013 of 201
2
OS No.25013/2014
Defendants: 1. Smt. Siddamma,
Aged about 68 years,
W/o Late Munimallappa,
Nagasandra Village and post,
Nagasandra Main Road,
Tumkur Road,
Bangalore560 073.
2. Sri. Muniraju. M.N,
Aged about 47 years,
S/o Late Munimallappa,
Nagasandra Village and Post,
Nagasandra Main Road,
Tumkur Road,
Bangalore560 073.
3. Sri. Munikrishna M.N,
Aged about 44 years,
S/o Late Munimallappa,
Nagasandra Village and Post,
Nagasandra Main Road,
Tumkur Road,
Bangalore560 073.
4. Sri. Muniyappa. M.N,
Aged about 40 years,
S/o Late Munimallappa,
Nagasandra Village and Post,
Nagasandra Main Road,
Tumkur Road,
Bangalore560 073.
5. Sri. Rajesh M.N,
Aged about 38 years,
3
OS No.25013/2014
S/o Late Munimallappa,
Nagasandra Village and Post,
Nagasandra Main Road,
Tumkur Road,
Bangalore560 073.
6. Sri. Manjunath M.N,
Aged about 31 years,
S/o Late Munimallappa,
Nagasandra Village and Post,
Nagasandra Main Road,
Tumkur Road,
Bangalore560 073.
[By Smt. Shashikala. G/KNM. Advs)
02.01.2014
Date of Institution of the suit
Nature of the (Suit or pronote, suit
for declaration and possession, suit Injunction Suit
for injunction, etc.)
Date of the commencement of 27.09.2018
recording of the Evidence.
Date on which the Judgment was 04.11.2019
pronounced.
Year/s Month/s Day/s
Total duration 05 10 02
LXXII ADDL.CITY CIVIL AND SESSIONS
JUDGE,
4
OS No.25013/2014
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff against the Defendants for the relief of Permanent Injunction restraining the Defendants from putting up further construction, thereby blocking air and light, to the suit schedule property.
2. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, he is the owner in possession of the Suit Schedule Property, as the same is gifted to him, by his father TK Subramani by virtue of a Registered Gift Deed dated 27.01.2012. Further it is contended by the Plaintiff that, Originally the larger portion of the lands bearing Sy Nos 1/3A, 48/1 & 2, 50/2 to 5, 51/8, 52/1, 53/1 & 2, 54/1 to 10, 55/1, 2A, 2B, 3, 4 and 5, 56/1 to 4, 57, 58, 59/1 & 2, 60, 61, 62/1 & 2, 63/1 to 4, 64, 66, 67/3 of Nagasandra village and Sy Nos 5/1, 5/2, 5 OS No.25013/2014 6/7 to 10, 7, 8/1, 8/2, 9/1, 9/2, 9/3, 10/1, 10/2, 11/1, 11/2, 11/3, 12/1 to 5 and 13/1 of Neelakadhirenahalli village, in all measuring 129 Acres 34 Gts, Yeshwanthapur Hobli, Bangalore North Taluk for KRS Gowda Extension, were acquired by the Government of Karnataka for the formation of residential layout, vide Preliminary Notification No LAQ(1) CR.262/8485 dated 30.01.1985 followed by Final Notification No RD/308/AQS/84 dated 21.08.1985, under the provisions of Land Acquisition Act, 1894.
Thereafter Government of Karnataka took possession of the said land U/Sec 16 of the said Act and delivered possession thereof to the HMT Employees CoOperative House Building Society Ltd., as per the Possession Certificate bearing No SLAO/HBCS/2/198485 dated 01.03.1988, wherein the said HMT Employees CoOperative House Building Society Ltd., formed plots/sites and out of the said sites, allotted site No 1055 infavour of T K Subramani and has executed Registered Saledeed dated 08.06.1995 in his favour. Since then he is in possession of the said 6 OS No.25013/2014 site. Suit Schedule Property is formed in Sy No 56/3.
The Defendants are not having any right, title or interest over the Suit Schedule Property, they are laying their false claim over the Suit Schedule Property, contending that the same is their ancestral property. Due to the interference of the Defendants, the Plaintiff had lodged a Police Complaint against them, with the Jurisdictional Police, wherein the said Police authorities have refused to register Criminal case contending that the matter is of Civil Nature and advised to approach the Civil Courts of law. Hence, the Plaintiff is constrained to file the present suit for the relief of Permanent Injunction against the Defendants.
3. Suit Summon was issued to the Defendant. The Defendants appeared through their counsel on 06.01.2014 and have filed their Written Statement on 24.01.2014, denying all the allegations made by the Plaintiff in the Suit Plaint. It is specifically contended by the 7 OS No.25013/2014 Defendants that, the Suit Schedule Property is formed in Sy No 56/1 of Nagasandra village and not formed in Sy No 56/3 of Nagasandra village. Further it is specifically contended that, an area measuring 01 Acre 22 gts (002 gts p.k) was acquired by the Government of Karnataka out of the land bearing Sy No 56/1, totally measuring 02 Acres 05 gts (Incl of 002 gts p.k) of Nagasandra village and western portion of the said land measuring 023 gts was not the subject matter of the said Acquisition Proceedings. Further it is specifically contended that, the Government of Karnataka has allotted the land to HMT Employees CoOperative House Building Society Ltd., and the said Society has formed the sites measuring 50 feet X 30 feet, on taking the approval from the Bangalore Development Authority, thus the measurement of the Site bearing 1055 belonging to the Plaintiff is, East to West 50 feet and North to South: 30 feet and not East to West: 83.9 feet+84 feet/2 and North to South: 30 feet, as contended by the Plaintiff. The Plaintiff by contending so, is trying to encroach 8 OS No.25013/2014 over the remaining land measuring 023 gts, out of Sy No 56/1 of Nagasandra village, which is situated towards its Western side. Thus denies the allegation of interference pleaded by the Plaintiff and contends that by taking the undue advantage, the Plaintiff wants to encroach upon their land. Hence, prayed to dismissed the suit of the Plaintiff.
4. On the basis of the above said pleadings, my Learned predecessor in office has framed the following issues on 12.02.2016 as under:
ISSUES
1. Whether the Plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property, as on the date of suit?
2. Whether the Plaintiff proves the alleged interference of the Defendants?
3. Whether the Plaintiff proves that, he is entitled for Permanent Injunction against the Defendants, as prayed for?9
OS No.25013/2014
4. What order or decree?
5. Initially the case was madeover to CCH21. The same was transferred to this Court on 23.08.2018 by virtue of the notification No ADMI(A)413/2018 dated 31.07.2018.
6. The Plaintiff inorder to prove his case has got examined himself as PW1 and has got marked 16 documents as Ex.P.1 to Ex.P16. PW1 was cross examined on behalf of the Defendants on 23.11.2018.
Per contra, the Defendants have got examined Defendant No 2 as DW1 and have got marked 18 documents as ExD1 to ExD18. DW1 was cross examined on behalf of the Plaintiff on 21.02.2019.
The matter was posted for Arguments. Heard the Arguments of the Learned Counsels for the Plaintiff and the Defendants, respectively.
10OS No.25013/2014
7. My findings on the above said issues are as under:
Issue No 1 : In the Negative;
Issue No 2 : In the Negative;
Issue No 3 : In the Negative;
Issue No 4 : As per final order
for the following;
:R E A S O N S:
8. ISSUE NO.1:
As per the contentions of both the parties, the undisputed facts are as under:
That the Government of Karnataka has acquired the lands including Sy No 56/1 to 56/4 of Nagasandra village and on acquisition, the said land was given to the HMT Employees Co Operative House Building Society Ltd., and the said society has formed sites, on taking necessary approval from the BDA. Out of the said sites, Site bearing No 1055 was allotted to T K Subramani.11
OS No.25013/2014
9. The disputed facts are as under:
a) the Suit site bearing No 1055 is formed in Sy No 56/3 as per the Plaintiff, but the said site is formed in Sy No 56/1, as per the Defendants;
b) Site bearing No 1055, measures East to west: 83.9 feet +84 feet/2 and North to South: 30 feet, as per Plaintiff, but as per Defendants, the said site measures East to West: 50 feet and North to South: 30 feet;
c) As per Plaintiff, towards Western side of the Site No 1055, site of Rajanna is located, but as per the Defendants, towards Western side of the site No 1055, remaining area of Sy No 56/1, measuring 023 gts, which is left out/not the subject matter of Acquisition Proceeding, belonged to them, is situated.
10. The Plaintiff contends that initially, the lands were acquired by the Government of Karnataka and some of the acquired lands were given to the HMT Employees CoOperative House Building Society Ltd. But the Defendants contend that, an area measuring 023 gts was left out in the said acquisition proceedings, inrespect of the land bearing Sy.No.56/1 of Nagasandra Village, belonging to the Defendants. The Defendants 12 OS No.25013/2014 have produced copy of the Notification bearing No LAQ(1) CR.262/8485 dated 30.01.1985 at ExD1. As per this document, it is seen that the Government has issued Preliminary Notification U/Sec 4(1) of the Land Acquisition Act, intending to acquire the lands for public purpose to wit for the Secretary, HMT Employees CoOperative House Building Society Ltd. As per Sl. No 60 of the said Notification, land measuring 01Acre 22 Guntas (Inclusive of 002guntas of PK) out of land bearing Sy.No.56/1, totally measuring 02 Acres 05Guntas (Inclusive of 002guntas PK), is to be acquired from one Devamma Wife of Mallaiah. As per the said document, it is seen that towards the western side of the acquired land, remaining portion of Sy.No.56/1, is left out under the said acquisition proceeding.
Further the Defendants have produced copy of the Notification bearing No RD 308 AQS 84, dtd.31.08.1985 at ExD2. As per this document, it is seen that the Government has issued Final Notification U/Sec 6(1) of the Land Acquisition 13 OS No.25013/2014 Act, finally acquiring the lands for public purpose to wit for the Secretary, HMT Employees Co Operative House Building Society Ltd. As per Sl. No 60 of the said Notification, land measuring 01 Acre 22Guntas (Inclusive of 002guntas of PK) out of land bearing Sy.No.56/1, totally measuring 02Acres 05Guntas (Inclusive of 002guntas PK), is to be acquired from one Devamma Wife of Mallaiah. As per the said document, it is seen that towards the western side of the acquired land, remaining portion of Sy.No.56/1, is left out under the said acquisition, which is of the ownership of said Devamma W/o Mallaiah.
Further the Defendants have produced the survey sketch of Sy.No.56/1, after acquisition of the land for the purpose to house HMT Employees CoOperative House Building Society Ltd., at Ex.P.3. As per this document, it is seen that, Sy.No.56/1, totally measures 02Acres 05guntas (Inclusive of 002guntas PK), out of which an area measuring 01Acre 22guntas (Inclusive of 0 02guntas PK), have been acquired under the 14 OS No.25013/2014 Acquisition proceedings and an area measuring 0 23guntas, is left over with the owner of the said land. Further this document also evidences that, the said left out area of 023guntas of land is situated towards the western side of the acquired land, out of the same Sy.No., measuring 01Acre 22guntas (Inclusive of 002guntas PK). Inotherwords, it can be said that an area measuring 023guntas has not been acquired by the Government of Karnataka inorder to wit the HMT Employees CoOperative House Building Society Ltd., and the said area has remained with the owners of the said land, which is located towards the western side of the acquired land.
Further the Defendants have produced the notice dtd.27.09.1985 at Ex.D.4. Even as per this notice, it is seen that, an area measuring 0122 guntas (Inclusive of 002guntas PK) have been acquired out of the entire land bearing Sy.No.56/1, within the boundaries to the East:
Sy.No.56/2; to the West: remaining land out of 15 OS No.25013/2014 Sy.No.56/1; to the North: lane (oni) and to the South: Sy.No.56/3.
Coming to the ocular evidence, more specifically cross examination of PW.1, at Page No.9, Para No.1 as well as at Page No.10, Para No.1, Line Nos.1 to 4, which reads as under;
" It is true to suggest that the Government of Karnataka has acquired land, for allotment of the same to HMT Employees Co Operative House Building Society Ltd., Bengaluru. In the said acquisition proceedings, the land belonging to the Defendants might have been acquired. It is true to suggest that land bearing Sy.No.56/1 of Nagasandra village belong to the Defendants. It is true to suggest that Sy.No.56/1 of Nagasandra village measuring 02 Acres 07guntas (Inclusive of 002 guntas PK). It is true to suggest that out of 02Acres 07guntas, an area measuring 1 Acre 22 guntas have been acquired by the Government. It is true to suggest that remaining area, after acquisition, measuring 16 OS No.25013/2014 23 guntas are retained with the Defendants. ......"
As per this piece of evidence, PW.1 admits that land bearing Sy.No.56/1, measuring 02 Acres 07Guntas (Inclusive of 002guntas PK) and out of the said land an area measuring 01 Acre 22guntas have been acquired by the Government and an measuring 23Guntas was retained with the owner.
Thus, as per the oral and documentary evidence, it can be said that, an area measuring 01Acre 22guntas (Inclusive of 002guntas PK), out of Sy.No.56/1, totally measuring 02Acres 05 guntas (Inclusive of 002Guntas PK), has been acquired by the Government of Karnataka, to wit HMT Employees CoOperative House Building Society Ltd., and an area measuring 023guntas have been left with the owner of the said land, which is located towards the western side of the acquired land. So the contention of the Plaintiff that, land bearing Sy.No.56/3, has been acquired by the Government of Karnataka holds no water, 17 OS No.25013/2014 but the contention of the Defendants that the said acquisition was made out of Sy.No.56/1, stands proved.
11. Further the Plaintiff contends that, the suit schedule site measures East to West83.9 feet + 84/2 feet and North to South30 Feet. Whereas, the Defendants contend that the site of the Plaintiff measures East to West 50feet and North to South 30feet.
The Plaintiff has produced the Sale Deed dtd.08.06.1995 marked as Ex.P.1; Possession Certificate dtd.28.03.1995 issued by the HMT Employees CoOperative House Building Society Ltd., Bengalore, at Ex.P.2; Encumbrance certificate commencing from 01.04.1995 to 31.03.2004 at Ex.P.5; Encumbrance letter dtd.07.03.2009 at Ex.P.8; Registered Gift Deed dtd.27.01.2012 at Ex.P.9; Extract from the Assessment list for the years 201213 issued by the BBMP authorities at Ex.P.13, all these documents suggest that, the Suit Schedule Site 18 OS No.25013/2014 measures East to West: 83.9+84/2 feet and North to South: 30feet.
The Plaintiff has produced katha certificate marked as Ex.P.7, but the said katha certificate does not contain the measurements of the suit schedule site.
12. Coming to the ocular evidence, more specifically cross examination of PW.1, Page No.10, Para No.4, which reads as under:
"Now Ex.P.7katha certificate is shown to the witness and questioned whether any measurements are mentioned in the said document. Witness replies it is not mentioned in katha certificate, but it is mentioned in Possession certificate."
As per this piece of evidence, PW.1 admits that there is no mention of the measurements pertaining to the Suit Schedule Site in Ex.P.7, but the said measurements are mentioned in the Possession CertificateEx.P.2.
Further, as per the cross examination of PW.1, Page No.12, Para No.1 as well as Page 19 OS No.25013/2014 No.13, Para Nos.2 & 4 and Page No.14, Para No.2, which reads as under:
"It is false to suggest that I am in Possession of only 30ft North to South and 50 ft East to West. It is further false to suggest that apart from this 30ft X 50 ft., the property towards the western side is in Possession of the Defendants".
"It is false to suggest that BDA authorities have given plots measuring East to West 50ft and North to South 30ft, by approving the layout, to the HMT Employees House Building CoOperative Society, Bengaluru, and the said HMT Employees House Building Co Operative Society, Bengaluru, has unauthorizedly allotted the site measuring East to West (83.9 ft + 84 ft)/2 and North to South 30 ft. to my father".
"I have produced Ex.P.8 to show that BDA authorities have handed over suit schedule property measuring (83.9 ft + 84 ft)/2 X 30 ft. to the HMT Employees House Building CoOperative Society, Bengaluru. It is false to suggest that Ex.P.8 is issued only for the 20 OS No.25013/2014 purpose of collection of taxes in respect of the suit schedule property. It is false to suggest that I have got created Ex.P.8 in collusion with the authorities of BDA".
"It is false to suggest that site bearing 1055 shown as the suit schedule property does not measure as East to West (83.9 ft + 84 ft)2 and North to South 20 ft as per the approved BDA plan".
As per these evidence, it is seen that the Defendants have denied that the Suit Schedule Site is measuring East to West:83.9+84/2feet and North to South: 30feet. But the said site is measuring East to West:50 feet and North to South: 30 feet. Further it is suggested to PW.1 that, the BDA authorities have not sanctioned/approved formation of sites, as contended by the Plaintiff, but the approval of the sites are with the measurements East to West:
50feet and North to South: 30feet. Further it is suggested to PW.1 that, without having the plot size of East to West: 83.9feet + 84/2feet, HMT 21 OS No.25013/2014 Employees CoOperative House Building Society Ltd., Bengaluru, has illegally given site No.1055 by mentioning wrong measurements. Under such circumstances, it was for the Plaintiff to prove that, the BDA authorities have approved the sites formed in Sy.No.56/1, more specifically the site allotted to the father of the Plaintiff by HMT Employees CoOperative House Building Society Ltd., Bengaluru, measures East to West: 83.9 + 84/2feet and North to South: 30feet, by producing the cogent evidence, more specifically the approved BDA site formation plan, as contended by the Plaintiff in Para No.6 of his Suit Plaint, which reads as under:
"6. The Plaintiff further submits that after formation of the layout by the HMT Employees House Building CoOperative Society Ltd., the plan got approved by the Bengaluru Development Authority, Bengaluru and also jurisdiction of the Schedule Property comes within Bengaluru Development Authority, Bengaluru and hence the Revenue Officer, Bengaluru Development Authority, Bengaluru, issued the Katha 22 OS No.25013/2014 Certificate in the name of Sri. T.K. Subramani vide Katha Certificate bearing No.BDA/REV/1055/2008 09 dated 07.03.2009."
But the Plaintiff has not produced any documents, to show that the BDA authorities have approved the formation of layout plan, consisting of the plots, more specifically the Suit Schedule Site, having its measurements East to West:83.9+84/2 feet and North to South :30feet.
Further the Plaintiff has not produced any document to show that, the HMT Employees Co Operative House Building Society Ltd., Bengaluru, has obtained layout sanctioned plan from the BDA authorities for laying the sites in the said land. But the Defendants have produced the blueprint map of the proposed residential layout, formed in Sy.No.56/1 and other Survey Numbers, at Ex.D.5 and the site of the Plaintiff is marked as Ex.D.5(A).
23OS No.25013/2014
13. Coming to the ocular evidence of PW.1, at Page No.10, Para Nos.2 & 3, which reads as under;
"The entire layout wherein HMT Employees House Building Co Operative Society Ltd., Bengaluru, is housed, has been approved by the BDA. The measurements of the plots formed in the said layout is mentioned in the approved layout map by the BDA".
" On questioning the witness as per the BDA approved layout plan, what is the measurement of the suit schedule site. Witness replies BDA has given Possession Certificate to me. As per Possession Certificate I am in Possession of the site".
As per these pieces of evidence, the Plaintiff admits that the BDA has approved the plan for formation of the layout sites and the measurements of the said plots formed in the said layout is found mentioned in the said approved layout map, by the BDA. Further the Plaintiff has admitted that the BDA has given Possession Certificate to him and he is in Possession of the 24 OS No.25013/2014 said certificate. But the Plaintiff has not produced the said Possession Certificate issued by the BDA authorities, inorder to prove that the plot allotted to his father measures East to West:
83.9+84/2feet and North to South:30feet.
As per the cross examination of PW.1, at Page No.11, Para No.3, which reads as under;
"It is false to suggest that the suit property with its measurements given by me is actually not approved by the BDA authorities by virtue of its layout plan but, the HMT Employees House Building Co Operative Society Ltd., Bengaluru, by encroaching over the property belonging to the Defendants have allotted the suit property".
As per this piece of evidence, it is suggested to the Plaintiff on behalf of the Defendants that, the HMT Employees CoOperative House Building Society Ltd., Bengaluru, is trying to encroach over the properties belonging to the Defendants, by allotting the sites, with more measurements than the measurements of the sites as per the approved layout map, approved by the BDA.
25OS No.25013/2014 Further as per the cross examination of DW.1, at Page No.6, Para No.2, which reads as under;
"I am aware about the layout plan formed by the BDA authorities by rescheduling the location of the plots as shown in Ex.D.5Blue Print Map submitted by me. It is true to suggest that BDA authorities have modified the existing location of the plots which were in two rows, which is modified into one row having Nos.1054, 1055, 1056, 1057 to 1065 (in all 9plots)."
As per this piece of evidence, it is seen that, the Defendants through DW.1, admits that the BDA authorities by rescheduling the location of the plots have approved the blue print map of the layout, as per Ex.D.5, more specifically withregard to row consisting of site Nos.1054, 1055, 1056, 1057 to 1065 (In all nine plots) and deleting another row.
So as per the oral as well as documentary evidence more specifically Ex.D.5, admitted document from the side of the Plaintiff, it can be 26 OS No.25013/2014 said that, the row consisting of site Nos.1054, 1055, 1056, 1057 to 1065 (In all nine plots), each plot/site measures East to West:50feet and North to South:30feet and not East to West:83.9 +84/2feet and North to South: 30feet, as contended by the Plaintiff.
14. So also the Defendants have produced the information supplied to them, by the BDA authorities under Right to Information Act, as per Ex.D.6. The said document reads as under:
ಕ ಕಮ ಕಕಕರರರವ ಮಹತ ಉತತರ ಸಸಖಖ
1. Measurements of sites ಸದರ HMT ಗಗಹ ನಮರಣ ಸಹಕರ form 1052 to 1065 of ಸಸಘದವರ ಪರವಗ ಬಸಗಳಕರರ ಅಭವಗದದ ಪಪಧಕರದಸದ HMT Employees ಅನರಮಕದನಗಕಸಡ ವಸತ ಬಡವಣ House Building Co- ನಕಯಲ ನವಕಶನ ಸಸಖಖ 1052 ರಸದ Operative Society 1065 ಗಳನರ ನ ಒಳಗಕಸಡದರ ದ , Layout formed in ಅನರಮಕದತ ಬಡವಣ ನಕಯಲ Nagasandra Village, ಸದರ ನವಕಶನಗಳ ಅಳತಯನರ ನ 30' X Yeshwanthpura Hobli, 50' ಅಡ ಎಸದರ ನಮಕದಸಲಗರರತತದ.
ಸದರ ಲಭಖಖವರರವ HMT ಗಗಹ
Bangalore as per your
ನಮರಣ ಸಹಕರ ಸಸಘದ ವಸತ
Board resolution ಬಡವಣ ನಕಯನರ ನ
Approved plan no.994 ಪವರಬವಯಗ
dtd.22.04.1988. ಪರಶಕಲಸಕಕಸಡರ ಪಡಯಲರ
ಇಚಚಸದಲ ರಕ.200/- ಗಳನರನ
ಪಪಧಕರದ ಕನರ ಬಖಸಕ ನಲ
ಅಕಸಟ ನಸ.198 ಕಕ ಪವತಸ ರಶಕದ
ಪಪತ ಸಲಸವದರ ಅಥವ ಮನಖ
ಆಯರಕತರ ಹಸರನಲ ಸದರ ಮತತಕಕ ಪಕ
ಆಡರರ ಸಲಸರವದರ ದ .
27
OS No.25013/2014
As per this document, it can be said that the BDA authorities have also stated/supplied the information that, the sites bearing Nos.1052 to 1065, formed by the HMT Employees Co Operative House Building Society Ltd., Bengaluru, measures 30 feet X 50 feet.
15. Further the Defendants contend that, the adjacent site owners of the Suit Schedule Site had filed O.S.No.2843/2007, wherein they have contended that, their sites measures East to West:50feet and North to South:30feet. Such contentions of the Defendants can be seen as per the suggestion made to PW.1, in his cross examination at Page No.13, Para No.1, which reads as under;
"On questioning the witness whether 1)H.L. Jayaram, 2) Shivanna, 3) Smt. K.S.Parvathamma, 4) V.A.Harindra, 5) Smt. B.H. Nagarthna and 6) Shailaja Dayanand are your neighbors. Witness replies one Mr. H.L. 28 OS No.25013/2014 Jayarama is out neighborer. I do not know whether my said neighbourer Mr. H.L. Jayarama has deposed before CCH8 in O.S.No.2843/2007 that his site measures East to West 50ft and North to South 30 ft, as per the BDA., layout approved plan".
So it is for the Plaintiff to prove that the Suit Schedule Site, which is formed by the HMT Employees CoOperative House Building Society Ltd., Bengaluru, on its approval by the BDA authority, measures East to West: 83.9 + 84/2 feet and North to South:30feet. But the Plaintiff has failed to prove the same.
16. Secondly, the Plaintiff contends that Possession Certificate was issued by the BDA authorities and he is in Possession of the same, but the said Possession Certificate is not produced by the Plaintiff, inspite of the Defendants denying the measurements of the Suit Schedule Site more specifically relating to East to West measurements of the said Site.
29OS No.25013/2014
17. Thirdly, the Plaintiff contends that towards western side of the Suit Schedule Site, site of one Rajanna is located.
The Plaintiff has produced the Sale Deed dtd.08.06.1995 executed by HMT Employees Co Operative House Building Society Ltd., Bengaluru, infavour of his father, at Ex.P.1 and the Gift Deed dtd.27.01.2012, executed by the father of the Plaintiff, in his favour, at Ex.P.9, both these documents suggest that, to the West of the schedule of property mentioned in both these documents, private property is located. Further as per the ocular evidence more specifically at cross examination of PW.1, at Page No.12, Para No.2, which reads as under;
"It is false to suggest that towards west of the suit schedule property BDA has laid down a road. Witness volunteers that towards west of the suit schedule property another person by name Mr. Rajanna brothers have constructed a house, as it is their ancestral property".30
OS No.25013/2014 As per this evidence, Plaintiff denies that towards West of the Suit Schedule Property BDA has laid down a road and further contends that towards West of the Suit Schedule Site, house is constructed by Mr. Rajanna Brothers.
So also as per the cross examination of DW.1, at Page No.7, Para No.2, Line Nos.1 to 8, which reads as under;
" It is false to suggest that western half portion of the plot belongs to Rajanna. Witness volunteers that the said western half portion belongs to us. Plot of Sri. Rajanna is situated towards the western side of the suit schedule property. It is false to suggest that infront of the plot of Sri. Rajanna there is a plot showing number as 56/2 and he is in Possession of the said plot since 2530 years. Witness volunteers that my plot is situated in 56/3."
As per this evidence, it is seen that, as suggestion is made to DW.1 that, western half portion of the plot belongs to Rajanna, which is denied by DW.1 and further contends that the said portion belongs to them.
31OS No.25013/2014 Further the Defendants have produced the deposition of H.L. Jayaramu S/o H.S. Lakshmikanthaiah, claiming to be the owner of Site No.1063, in O.S.No.2043/2007 at Ex.D.12. As per this document, more specifically Page No.13, Para Nos.1 and 2, which reads as under;
"ದವ ಸಸಟನ ಪಶಚಮದ ಕಡ ಮತರತ ಊರನ ಮದಖ ಬಕರಯವರ ಆಸತ ಇರರತತದ ಎಸದರ ನಜ. ಪಶಚಮದ ಕಡ ಇದ ನ ವ ಬಕರಯವರ ಆಸತ 1 ನಕ ಪಪತವದಯ ತಸದ ಎನರ ಮರನಮಲಕಪಪನಗ ಸಕರರರತತದ ಎಸದರ ನನಗ ಗಕತತಲಕ. ದವ ಸಸಟನರ ನ ನಕಕಡಲರ ನನರ ಆಗಗ ಹಕಕಗರತತರರತತಕನ. ದವ ಸಸತತನ ಪಶಚಮಕಕ 1 ನಕ ಪಪತವದಯ ತಸದ ಮನಯನರ ನ ಕಟಟರರತತರ ಎಸದರ ನಜ. ಸದರ ಮನಯ ಪವಕಕರ ರಸತ ಇದ ಎಸದರ ನಜ. ಅದನರ ನ ಪಪತವದ ನಮ ಮ ಸಸಟನ ಮಕಲ ಇತತಕಚಗ ಮಡರರತತರ. ಮರನಮಲಕಪಪ ಕಟಟರರವ ಮನ ಮತರತ ಅದರ ಪವರಕಕ ಇರರವ ರಸತ ಯನರ ನ ತಕಕರಸರವ ಪಕಟಕಕಗಳನರ ನ ನಕಕಡದ ಅವಗಳನರ ನ ನ.ಡ. ರಸದ ನ.ಡ. 3 ಎಸದರ ಗರರರತರ ಮಡಲಯತರ."
"ಸಕಸಸಟಯವರರ ಲಕಔಟ ಮಡರವ ಮದಲರ BDA ಯಸದ ಮಸಜಕರರ ಮಡಸಕಕಸಡದದರರ ಎಸದರ ನಜ. ಮಸಜಕರತ ನಕಶಯ ಪಪಕರ ಸಕಸಸಟಯವರರ ನನಗ ನವಕಶನವನರ ನ ಕಕಟಟರರತತರ. ಸಕಸಸಟಯವರರ ಲಕಔಟ ನಕಶಯನರ ನ ನನಗ ಕಕಟಟರರವದಲಕ. ಈಗ ತಕಕಗಸದ ಲಕಔಟ ನಕಶ ನ.ಡ.4 ರಸತ ಇರರತತದ. ನನನ ಮತರತ ಉಳದ ವದಗಳ ನವಕಶನಗಳರ ನ.ಡ.4 ರಲ 4 ಎ ಎನರ ನ ವಲ ಬರರತತವ. ನ.ಡ.4 ರಲ ನವಕಶನಗಳ ಅಳತಯನರ ನ 30 X 50 ಅಡ ಎಸದರ ತಕಕರರತತದ. ನನನ ನವಕಶನದ ಅಳತ ಪವರ ಪಶಚಮ 71 X 68/2 ಮತರತ ಉತತರ ದಕಣ 30 ಅಡ ಇರರತತದ. ನನಗ ಮತರತ ಉಳದ ವದಗಳಗ 30 X 50 ಅಡ ಅಳತಯ ನವಕಶನಗಳನರ ನ ಮತ ಕ ಕಕಟಟರರತತರ ಅವಗಳಸದ ಪಶಚಮಕಕ ಇರರವ ಆಸತ ಮರನಮಲಕಪಪನಗ ಸಕರರರತತದ ಎಸದರ ಸರಯಲಕ.'' 32 OS No.25013/2014 As per this evidence, it is seen that towards the western side of the plots, which are in the row as site Nos. 1054 to 1065, the owner of site No.1063, admits that there is a road towards western side of its plot.
Further taking into consideration, the acquisition of the land by the Government Authorities for the purpose to house HMT Employees CoOperative House Building Society Ltd., Bengaluru, as per Ex.D.1 to Ex.D.3, it can be said that the western portion of the land bearing Sy.No.56/1, measuring 0.23Guntas has not been acquired, but the same is retained with the owner of the said land. This portion of the land (portion of 0.23guntas) is located towards western side of the sites formed by the HMT Employees CoOperative House Building Society Ltd., Bengaluru. So I am of the firm opinion that, towards the western side of the Suit Schedule Site, site belonging to Rajanna brothers, is not in existence and even the same has not been proved by the Plaintiff. But towards the western side of the site bearing No.1055, the property of the 33 OS No.25013/2014 Defendants is located, which is the unacquired land measuring 023guntas.
18. Thus, the Plaintiff has failed to prove the measurements and boundaries of the Suit Schedule Property. The identity of the Suit Schedule Property has remained unestablished/unproved from the side of the Plaintiff. When the Plaintiff has failed to prove the identity, the measurements and the boundaries of the Suit Schedule Property, it cannot be said that the Plaintiff is in Possession of the Suit Schedule Property, on the basis of Ex.P.1 Sale Deed and Ex.P.9 Gift Deed . Hence, I answer Issue No.1 in the NEGATIVE.
19. ISSUE NO.2:
The Plaintiff has contended that the Defendants have caused interference in his peaceful Possession over the Suit Schedule Property. The same is denied by the Defendants in their Written Statement and further contends 34 OS No.25013/2014 that the Plaintiff by showing more measurements of the suit schedule site, wants to encroach upon their property, which is situated towards the western side of the Sites/plots formed by the HMT Employees CoOperative House Building Society Ltd., Bengaluru.
20. So the Plaintiff has to prove/show that he is in Possession of the Suit Schedule Property coupled with his apprehension, with the acts of the Defendants, amounting to attempts of trespass made by them. Inorder to have the relief of Injunction, Plaintiff has to prove interference. The Plaintiff has contended that the Defendants are trying to take up constructional works thereby causing disturbance to him, in his peaceful Possession and enjoyment, amounting to blocking the air and light facility to him. The Plaintiff has totally failed to prove the said interference, as alleged by him in the Suit Plaint, for which he has claimed the relief of Permanent Injunction. It appears that the cause of action pleaded by the Plaintiff is an illusory cause of action. Hence, in 35 OS No.25013/2014 the absence of any proof of interference, apprehension leading to injury to the Plaintiff, it cannot be said that Plaintiff has proved the interference by the Defendants, as required. Since the act to be apprehended by the Plaintiff and intended by the Defendants, must be such that, if completed, give a ground for action. There must be a foundation for the exercise of jurisdiction. Hence, I am of the firm opinion that Plaintiff has failed to prove that there exist a prospect or apprehension and belief, coupled with intention of the Defendants, sought to be exhibited, if completed, will give rise to a cause of inflicting injury or receiving injury, to the Plaintiff. Hence, Plaintiff has failed to prove the interference. I find support to my above view, as per the decision of the Hon'ble High Court of Karnataka reported in ILR 1978 Page 1560; in the case of Gopal M Hegde & Ors Vs U F M Narasimha Ganap Bhat & Ors, wherein it is held that, 36 OS No.25013/2014 "When the Plaintiff proves the intention on the part of the defendants, to do an act or existence of the act, which in the opinion of the Court, if completed, give ground of action, there is foundation for the exercise of jurisdiction".
21. Even as per the decision of the Hon'ble High Court of Karnataka, At Bangalore passed in RSA No 116 of 2006, in the case of Sri Vishakante Gowda Vs Sri Hombegowda and Ors: it is held that, "in the absence of proof of alleged interference by way of obstruction by the defendants, no exception can be taken to the conclusions of the courts below dismissing the suit and rejecting the appeal"
Thus the Plaintiff has failed to prove the interference, said to have been made by the Defendants to him in his peaceful possession over the suit schedule property. For the above said 37 OS No.25013/2014 reasons, I answer Issue No. 2 in the NEGATIVE.
22. ISSUE NO.3:
When the Plaintiff has not established the identity of the property shown as the Suit Schedule Property, by proving its measurements, boundaries, with cogent and reliable satisfactory evidence, under such circumstances, the Plaintiff is not entitle for grant of Temporary Injunction, as claimed by him. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka, in the case of K. Gopala Reddy (Deceased) by Lrs., V/s Suryanarayana & Others, reported in 2004 (1) KCCR, 662, Item No.E, wherein it is held that:
"Whether the Plaintiff has failed to establish the identity of the property, question of granting injunction in his favour does not arise at all".
23. Secondly, when the Defendants have challenged the ownership of the Plaintiff over the 38 OS No.25013/2014 Suit Schedule Property, more specifically the measurements of the Suit Schedule Property shown by the Plaintiff, then it was for the Plaintiff to establish it, by cogent evidence as well as it was for the Plaintiff to prove not only his Possession over the Suit Schedule Property with such measurements, but also to prove his title, right from approval of the layout plan by the BDA authorities infavour of the HMT Employees Co Operative House Building Society Ltd., Bengaluru, which the Plaintiff has utterly failed. I find support to my above view as per the decision of the Hon'ble Apex Court in the case of Anathulla Sudhakar V/s P. Buchi Reddy (dead) and others reported in AIR 2008 SCC 2033, wherein it is held that, "Suit for injunction simplicitor is maintainable, when there is interference in the peaceful enjoyment and possession of the Plaintiff and when clouds of title have not been raised in other words, title of the Plaintiff is not challenged, with cogent evidence".
39OS No.25013/2014 Thus viewing from any angle, the Plaintiff is not entitle for the relief of Permanent Injunction. Hence, I answer Issue No. 3 in the NEGATIVE.
24. ISSUE NO.4:
For having answered Issue Nos.1 to 3 in the Negative, I proceed to pass the following:
ORDER Suit of the Plaintiff is hereby Dismissed, with costs.
Draw decree accordingly.
- (Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 04th day of November, 2019.) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 40 OS No.25013/2014 :Suit Schedule Property:
All the piece and parcel of the Site bearing No.1055, Survey No.1/3 to 64.66 67/3, formed by the HMT House Building Cooperative Society, Nagasandra Village, Yeshwanthapura Hobli, Bangalore North Taluk, measuring East to West 83.9'+84/2 feet, and North to South 30 feet, totally measuring 2516.10 sq.ft. and bounded on the:
East by : Road.
West by : Private property.
North by : Site No.1056,
South by : Site No.1054.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 41 OS No.25013/2014 ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1: T.S. Purushothaman.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P1: Original Registered Saledeed dtd.08.06.1995.
Ex.P2: Original copy of possession certificate issued by the HMT Society.
Ex.P3: Permission intimation/memo issued by the Secretary of HMT Society. Ex.P4 to 6: Three Encumbrance certificates. Ex.P7: Katha certificate. Ex.P8: No due certificate issued by the Revenue Officer.
Ex.P9: Original registered Gift Deed dtd.27.01.2012.
Ex.P10: Receipt issued by BBMP dtd.08.04.2013. Ex.P11: Katha endorsement issued by the BBMP. Ex.P12: Certificate issued by BBMP. Ex.P13: Assessment Extract. Ex.P14 to 16: Three tax paid receipts issued by the BBMP.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: Sri. M.N Muniraju.
42
OS No.25013/2014
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D1: True copy of 4(1) notification dtd.01.02.1985.
Ex.D2: True copy of 6(a) notification dtd.31.08.1985.
Ex.D3: Certified copy of survey sketch of Sy.No.56/1, 2, 3 and 4.
Ex.D4: Certified copy of award. Ex.D5: True copy of layout approved by BDA Authorities.
Ex.D5(A): Relevant portion is marked with green ink.
Ex.D6: Reply given by BDA authorities under RTI Act.
Ex.D7: Certified copy of the Written Statement in OS No.5874/1997.
Ex.D8: Certified copy of deposition of DW.1 in OS No.5874/1997.
Ex.D9 & 10: Certified copy of the Judgment and Decree in OS No.5874/1997. Ex.D11: Registered partition deed dtd.12.07.2006.
Ex.D12: Certified copy of deposition of PW.1 in OS.No.2043/2007.
Ex.D13: Certified copy of the orders passed by the Hon'ble High Court of Karnataka on IA No.1/12 in RFA No.1026/2012. Ex.D14 to 18: Three positive photographs with CD and photo receipt.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)