Bangalore District Court
M Felix vs T Charles on 26 September, 2024
KABC0A0044712019
IN THE COURT OF THE LXXIII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL, BENGALURU. (CCH-74)
P r e s e n t:
Smt. Anitha N.P., B.A.L., L.L.M.,
LXXIII Addl.City Civil & Sessions Judge, Bengaluru
Dated this the 26th day of September, 2024.
O.S. No.26709/2019
Plaintiff:- Sri. M.Felix,
S/o Late Manickam,
Aged about 57 years,
R/a No.508, 7th Main,
Anandapura, New Thippasandra Post,
Bengaluru-560 075.
[By Sri. Vellanki Ravi-Adv.]
Vs.
2
O.S. No.26709/2019
Defendant:- Sri.T. Charles,
S/o: Sri. Thomas,
Aged about 38 years,
R/a No.481/A, 8th Cross,
Anandapura, New Thippasandra Post,
Bengaluru-560 075.
[By Sri.S.G.,-Adv.]
Date of institution of the suit : 16.12.2019
Nature of the suit (Suit for
pro-note,suit for declaration : Injunction suit
and injunction,suit for
injunction, etc)
Date of commencement of : 21.10.2021
recording of evidence
Date on which the Judgment : 26.09.2024
was pronounced
Total duration Year/s Month/s Days
04 09 10
Digitally signed by
ANITHA
ANITHA NANJANAGUDU
NANJANAGUDU PARASHIVAMURTHY
PARASHIVAMURTHY
Date: 2024.10.01
16:11:18 +0530
(Anitha.N.P.)
LXXIII Addl. CC & SJ, M.H.Unit,
Bengaluru. (CCH-74)
3
O.S.No.26709/2019
J U D G M E N T
The plaintiff has filed this suit as against the defendant seeking the relief of permanent injunction in respect of Plaint A schedule property and mandatory injunction in respect of plaint 'B' schedule property, for costs and such other further reliefs.
2. The brief facts of the plaintiff's case is as under:-
The plaintiff is absolute owner of plaint A schedule property and he acquired the same under the registered sale deed dated 24.10.2013 executed by Sri. D. George William. According to plaintiff said Sri. D. George William purchased the suit 'A' schedule property from one Smt. Basamma under the registered sale deed dated 08.09.2008. According to plaintiff the suit 'A' schedule property was formerly part of 4 O.S. No.26709/2019 larger extent of the property and it was belongs to Smt. Basamma and she acquired the same from H.N.Nanjappa and H.N.Shankarappa under the registered sale deed dated 24.02.1975.
3. It is also the case of the plaintiff that in the sale deed executed in fovour of said Basamma it is clearly mentioned that the property sold in favour of Smt. Basamma was having a path/common passage toward Southern side of the suit schedule property which measures approximately 4 feet in width and the same runs from East to West, and then from South towards North and the same was been utilized by all the residents of the locality to reach the well and for fetching water therein.
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O.S. No.26709/2019
4. It is also the case of the plaintiff that he has constructed the building in the suit schedule 'A' property by leaving the necessary setbacks and he is in possession of same since last 5-6 years. According to plaintiff towards southern and western side of his property there was an old sheet building, after the passage area. According to plaintiff the defendant recently acquired the said old sheet building property and he started construction of building and in the process of construction he has illegally tried to encroach and put up construction on the passage area also by not leaving the setback areas in his property and he is putting up construction by touching the property of plaintiff and even by encroaching on the common passage area and the setback area and not leaving necessary setback area. The said construction 6 O.S. No.26709/2019 which is being done is in complete violation of the sanctioned plan. Accordingly, the defendant was warned and initially the defendant agreed to not do so but he has not stopped the said illegal construction. Accordingly, the plaintiff lodged a police complaint on 11.11.2019 and the police have called the defendant and before the police the defendant undertook to not to put up illegal construction. The defendant kept quiet for some time, however he has again started to put up illegal construction in the common passage area which is described in 'B' schedule property. According to plaintiff if the defendant is permitted to put up illegal construction then definitely it will affect the rights of the residents including the plaintiff to fetch water from the common well and right of ingress and egress over the common passage area and he will be put to great 7 O.S. No.26709/2019 hardship. On the above grounds he has filed this suit and prays to decree the suit.
5. In pursuance of the suit summons, the defendant appeared before the Court through his counsel and filed his detailed written statement.
6. The brief facts of the written statement of defendant is as under:-
The defendant in his written statement has not denied the title and possession of plaintiff over plaint A schedule property but called upon the plaintiff to prove the existence of 'B' schedule property. This defendant has taken a contention that the plaintiff has filed this suit individually stating that himself and residents of the locality are using the alleged passage for fetching the water from well. However the suit is 8 O.S. No.26709/2019 filed without invoking the provision of Order 1 Rule 8 of CPC and hence same is not maintainable.
7. It is the further case of the defendant that in the sale deed of the plaintiff the word ' & well' is inserted in the schedule and the same is purposeful insertion. The claim of the plaintiff is contrary to the documentary evidence of plaintiff, there is no such pathway or well as pleaded by the plaintiff in existence towards the western and southern side of suit 'A' schedule property.
8. It is the further contention of the defendant that towards the western side of alleged pathway there was house of one Deenadayal and others and they sold the same in favour of defendant under registered sale deed dated 01.12.2015. Towards the Eastern side of the said property 9 O.S. No.26709/2019 there was property of Smt. Damayanthi and others and they also sold the same in favour of defendant under registered sale deed dated 11.03.2016.
9. It is the further case of the defendant that the conservancy lane was left towards southern side suit 'A' schedule property for ingress and egress of the house of Sri. Deenadayalan and except the said conservancy lane there is no other way situated to approach the house of Deendayalan.
10. It is the further contention of the defendant that conservancy lane has been clearly mentioned in the sale deed of Smt. Damayanthi dated 11.03.2016 towards northern side and it was 6 feet passage and the said fact is shown in sale deed dated 11.03.2016. Even in the sale deed of Smt. Basamma dated 24.02.1975 the conservancy lane has been 10 O.S. No.26709/2019 mentioned towards the western side of 'A' schedule property. As such there is no such pathway or well is situated towards western and southern side of suit 'A' schedule property
11. According to this defendant the plaintiff himself while constructing building has encroached the 4 feet conservancy lane towards the southern side out of 6 feet conservancy lane and 2 feet towards western side.
12. The defendant has taken a contention that after purchasing the house by the defendant towards western and southern side of suit 'A' schedule property he is using conservancy lane to approach his house property and thereafter he put up the pillar in the remaining 2 feet of conservancy for closure towards northern side for which the plaintiff filed a false complaint against him and filed this suit. The said 11 O.S. No.26709/2019 conservancy lane is absolutely belongs to the vendor of the defendant and after purchase of property the same belongs to defendant only. The plaintiff by creating documents has obtained exparte temporary injunction order by misleading the court so as to make wrongful gain, neither the plaintiff nor the residents of the locality have right over the conservancy lane left only to approach the house of the defendant towards southern side of suit A schedule property. On the above grounds he prayed to dismiss the suit with exemplary costs.
13. Based on the pleadings, the following issues are framed by my predecessor in office and additional issue No.1 are framed:
I S S U E S
1) Whether the plaintiff proves that he is in possession of the suit schedule 'A' property at the time of filing the suit? 12
O.S. No.26709/2019
2) Whether the plaintiff proves that the existence of common passage towards southern side of the suit schedule property measures 4 feet, width runs from east to west then from south towards north?
3) Whether the plaintiff proves that the defendant has encroached over the common passage and constructed on common passage if so, what extent, whether liable to be removed by way of mandatory injunction?
4) Whether the plaintiff proves that he is entitle for relief of permanent injunction against the defendant?
5) Whether the plaintiff proves that he is entitled for the relief sought in the plaint?
4) What order or decree?
Addl.Issue No.1 1) Whether the plaintiff proves the
existence of suit 'B' schedule property as per 13 O.S. No.26709/2019 the rough sketch as pleaded in para No.9 of his plaint?
14. That to prove the case of plaintiff, the plaintiff himself got examined as P.W.1 and got marked Ex.P.1 to P.12 documents. On the other hand, the defendant himself got examined as DW.1 and got marked Ex.D1 to 11 documents.
15. Heard arguments, perused the pleadings, evidence, documents and available materials on record. The defendant has relied upon the following Judgments
a)Bachhaj Nahar Vs Neelima Mandal and another Civil Appeal No.5798/2008(Arising out of SLP No.23766-67 of 2005)
b) RSA No.200182/2018 (EAS) dated12-06-2024 of Honble High Court of Karnataka between the President, Managing Committee of Jama Masjid and Idgah Vs Rachamma 14 O.S. No.26709/2019
c) RSA 5430/2010(inj) C/W RSA 5429/2010 between Venkatrao Kulkarni dead by LRs Vs Prakash and others
d) RSA No.1980/2006 between Sri Vishwanath and another Vs Sri.Balakrishnappa
e) MFA No.5550/2019 (CPC) Sri.N.Venugopala ReddyVs Ms On dot Corporate Services Ltd and another
f) RSA 1357/2010 Mahadevappa Vs Mariswamy
16. My answer to the above issues are as under:-
Issue No.1 :- In the affirmative Addl. Issue No.1 :- In the affirmative Issue No.2 :- In the affirmative Issue No.3 :- In the affirmative Issue No.4 :- In the affirmative Issue No.5 :- In the affirmative Issue No.6 :- As per final Order for the following R E A S O N S
17. Issue Nos.1:-It is the specific case of the plaintiff that he is the absolute owner and is in possession of plaint 15 O.S. No.26709/2019 'A' schedule property. He purchased the same under the registered sale deed dated 24.10.2013 from Sri. D. George William. On perusal of the written statement the defendant has not denied the sale deed of the plaintiff. On the contrary he called upon plaintiff to prove the said fact. The plaintiff so as to prove his case got examined himself as PW.1 and during the course of evidence he filed his chief examination affidavit reiterating the plaint averments. He has produced the certified copy of sale deed dated 24.10.2013 as per Ex.P1. He also produced the sale deed dated 01.12.2015, 24.02.1975 as per Ex.P3 & 4.
18. On perusal of the Ex.P1 the sale deed dated 24.10.2013 the same is the sale deed executed by D. George William in favour of plaintiff and on perusal of the schedule 16 O.S. No.26709/2019 of the said sale deed the same is in respect of property bearing khatha No.412/150, old No.80, situated at Shivalingaiah colony, Kodihalli Dhakle, Varthur Hobli, Bengaluru East Taluk. Now comes under the jurisdiction of BBMP ward No. 73, new ward No.88, Bengaluru, measuring east to west 14 ¾ feet and north to south 21 ½ feet, in all measuring 317.125 Sq.Ft., bounded on the:
East by: road
West by: property belonging to Sri.Shivalingaiah
North by: property belonging to Sri.C.N.Sree Kumar
South by: private property
19. On perusal of Ex.P3 the same is the sale deed executed by Sri. S.Deenadayalan and others in favour of defendant and the said sale deed is in respect of property bearing new no.19, (formerly property no.80, HA Sanitary 17 O.S. No.26709/2019 Board No.77A and 77B) situated at Shivalingaiah colony, Nanjareddy colony, Kodihalli, Varthur Hobli, Bengaluru, measuring East to west 19 feet and north to south 14 feet in all measuring 266 Sq.feet and bounded on East by: Narayanas Bathroom West by: Private property North by: same property 3 feet conservancy lane South by: private property
20. On perusal of Ex.P4 the same is certified copy of sale deed dated 28.02.1975 and the said sale deed is executed by H.M.Manjappa and H.N. Shankarappa in favour of Basamma who is none other than the vendor of the plaintiff's vendor.
21. At this stage it is also necessary to go through the oral as well as documentary evidence of defendant. The 18 O.S. No.26709/2019 defendant in order to prove his case got examined himself as DW.1 and during the course of his evidence he filed his chief examination affidavit reiterating the contention of his written statement. He has produced the copy of sale deed dated 01.12.2015 and 11.03.2016 as per Ex.D2 & 3. Ex.D2 i.e., sale deed dated 01.12.2015 as well as Ex.P3 the copy of sale deed produced by the plaintiff dated 01.12.2015 are one and the same documents.
22. From the perusal of the sale deeds produced by the plaintiff it is noticed that the plaintiff has purchased plaint 'A' schedule property. According to plaintiff he has constructed building in the plaint 'A' schedule property and he is in possession of the same from past 5-6 years. So as to prove his possession the plaintiff has relied upon khatha 19 O.S. No.26709/2019 certificate marked as per Ex.P10 on perusal of the Ex.P10 the khatha of plaint schedule property for the year 2008-09, 2018-19 stands in the name of plaintiff. The measurement of the said property is 14 ¾ and 21 ½. The said Ex.P10 is not disputed by the defendant and even the construction building in the plaint 'A' schedule property by the plaintiff is also not in dispute. Accordingly, the plaintiff by placing the necessary and cogent evidence has proved his possession of suit 'A' schedule property as on the date of filing of the suit. Accordingly, I answered Issue No.1 in the affirmative.
23. Issue No.2 and Addl. issue No.1:- Both these issues are inter-linked and connected and hence they are taken up together for consideration.
20
O.S. No.26709/2019 It is the case of the plaintiff that there exists a common passage and it is suit B schedule property and the passage measures East to West 13 feet, North to South 4 feet and it is running from East to west and the passage measures East to west 4 feet and North to South 21 ½ feet and it is running from south to North as per the sketch enclosed to the suit and said passage is denoted by letters: "ABCDEFA" in the rough sketch. According to plaintiff in the sale deed executed by Sri. H.N.Manjappa and Sri. H.N. Shankarappa in favour of Smt.Basamma who is vendor of his vendor it is mentioned that the property sold in favour of Basamma there is a path/public common passage towards Southern side of the suit Schedule property measuring approximately 4 feet in width which runs from East to West and then from South towards North, and 21 O.S. No.26709/2019 the same was being utilized by all the residents to reach the well for fetching water. According to plaintiff the said passage is a common passage.
24. On the contrary it is the specific defence of the defendant that the claim of the plaintiff is contrary to the documentary evidence. The path way which is claimed by the plaintiff is not reflected or shown or mentioned in the sale deed of plaintiff, as per the sale deed of plaintiff the land of Shivalingaiah is situated towards Western side and there is a private property towards the southern side of 'A' schedule property, in the sale deed of plaintiff there is no such recitals regarding the alleged path way.
25. According to defendants Deenadayalan and others have sold their house to the defendant under registered sale 22 O.S. No.26709/2019 deed dated 01.12.2015 and towards the eastern side of said property there was property of one Smt.Damayanthi and others and they also sold their property under registered sale deed dated 11.03.2016. According to defendant there was a conservancy road left towards southern side of suit 'A' schedule property and it was for the ingress and egress to the house of Deenadayalan and except the said 3 feet conservancy lane there was no other way to approach the house of defendant.
26. Hence in the written statement the defendant has not denied the existence of 3 feet conservancy lane shown towards the Northern side of his property which was purchased from Deenadayalan and similarly he has not denied the existence of 6 feet passage towards the northern side of his 23 O.S. No.26709/2019 property which was purchased under the sale deed dated 11- 03-2016 from Smt.Damayanthi. Hence existence of common passage and conservancy lane next to the property of the defendant is not disputed.
27. However according to defendant the said passage and conservancy lane was meant for him only and it belongs to him exclusively. It is necessary to note that the defendant contended that the plaintiff has encroached the 4 feet conservancy lane towards the southern side out of 6 feet conservancy lane and also encroached 2 feet towards western side of his property. However, to show that there is encroachment of 4 feet common passage on the southern side of plaint A schedule and 2 feet conservancy lane on the 24 O.S. No.26709/2019 western side of plaint A schedule by the plaintiff no evidence is placed by the defendant.
28. It is pertinent to note that, it is not the case of the defendant that after the 6 feet passage shown in the Ex.D3 sale deed there was another passage. It is totally 6 feet passage which is available in between the suit A schedule property and the property of defendant purchased from the defendant from his vendor Damayanthi.
29. On perusal of Ex.P1 sale deed towards southern side of plaint 'A' schedule property it is mentioned as property belongs to private individual and towards the westerns side it is shown as property belongs to Shivalingaiah. Under the Ex.P1 sale deed it is shown that the vendor acquired the said property under the registered sale deed dated 09.09.2008. The 25 O.S. No.26709/2019 said sale deed is not marked as exhibit before the court. However the said sale deed is not denied by the defendant. It is also not denied by the defendant that the vendor of the plaintiff purchased the property from Basamma and inturn the said Basamma purchased the property from H.N.Manjappa and H.N. Shankarappa, the sale deed marked at Ex.P4 shows that the plaintiff's vendor's vendor Smt.Basamma purchased the property under the Ex.P4 sale deed. The schedule in Ex.P4 shows that it is the property and house purchased under the said sale deed was bounded East by big road, West by vendor's land, North by Natarajan house, South by Conservancy road and in between the said boundary there was a Mangalore tiled house measuring East to West 14 ¾ and 26 O.S. No.26709/2019 North to South 21 ½ feet including electric meter No.13.1997. It is mentioned in the said sale deed as follows:
"ಮನೆಗೆ ಚೆಕ್ಕುಬಂದಿ ಪೂರ್ವಕ್ಕೆ ಬೃಹತ್ತಾದ ರಸ್ತೆ, ಪಶ್ಚಿಮಂಕ್ಕೆ ನಮ್ಮಗಳ ಬಾಬ್ತು ಜಮೀನು, ಉತ್ತರಕ್ಕೆ ನಟರಾಜನ್ ರವರ ಮನೆ, ದಕ್ಷಿಣಕ್ಕೆ ಕನ್ಸರ್ವೆನ್ಸಿ ರಸ್ತೆ ಈ ಮಧ್ಯೆ ಇರುವ ಪೂರ್ವ-ಪಶ್ಚಿಮ 14 ¾ ಹದಿನಾಲ್ಕು ಮುಕ್ಕಾಲು ಅಡಿ ಉತ್ತರ-ದಕ್ಷಿಣ 21 ½ ಇಪ್ಪತ್ತೊಂದುವರೆ ಅಡಿ ಇದರಲ್ಲಿ ಇರುವ ಮಂಗಳೂರು ಹೆಂಚಿನ ಛಾವಣಿಯುಳ್ಳ ಮನೆ ಇದರಲಿಲರುವ ಎಲೆಕ್ಟ್ರಿಕ್ ಮೀಟರ್ ನಂ.13.19947 ಉಳ್ಳ ಮೀಟರ್ ನಿಮ್ಮ ಕ್ರಯಕ್ಕೆ ಸೇರಿರುತ್ತೆ ಬಾವಿ ನೀರು ಉಪಯೋಗಿಸಲು ಅಲ್ಲಿಂದ ದಾರಿಯಿರುವುದರಿಂದ ನೀವು ಬಾವಿ ನೀರು ಉಪಯೋಗಿಸಿಕೊಳ್ಳಬಹುದು".
30. Hence from the perusal of the Ex.P3 sale deed portion of the property purchased by the defendant is bounded North by same property 3 feet conservancy lane. That apart another portion of property purchased by defendant from Smt.Damayanthi as per Ex.D3 is bounded East by road, West 27 O.S. No.26709/2019 by Sundaramurthy Bathroom, North by 6 feet passage and South by private property.
31. Admittedly the property of plaintiff and defendant are adjacent to each other and same is shown in Ex.P7. The said fact is not in dispute. From the sale deeds of defendant itself it can be gathered that the defendant had purchased the property measuring East-west 19 feet, North-South 7 feet from Smt. Damayanthi and others and purchased property measuring East-West 19 feet and North-South 14 feet from Deendayalan and others and the above said 2 properties are adjacent to each other and said 2 properties are adjacent to plaint 'A' schedule property.
32. At this juncture it is necessary to go through the cross-examination of DW.1 and he deposed that the property 28 O.S. No.26709/2019 purchased by him from Smt.Damayanthi and her family on 11.03.2016 was measuring East-west 19 feet and North-South 7 feet and there is a connecting road to the Eastern side of said property and there was another property to the western of said property and he purchased the same from Deendayalan and his family members on 01.12.2015. He purchased the same on 01.12.2015 and it was measuring East-west 19 feet, North- south 14 feet.
33. It is necessary to note that DW1 deposed as follows and it is extracted for ready reference:
"ಸದರಿ ಆಸ್ತಿಗೆ ದಾರಿ ನಾನು ದಮಯಂತಿ ಮತ್ತು ಅವರ ಕುಟುಂಬದಿಂದ ಖರೀದಿಸಿದ್ದ ಆಸ್ತಿಯ ಪಕ್ಕದಲ್ಲಿ ಪಿಲಿಫ್ಸ್ ಅವರ ಮನೆ ಮಧ್ಯದಲ್ಲಿ 4 ಅಡಿಯ ಖುಲ್ಲಾ ಜಾಗ ಇದ್ದು."
34. Accordingly, from the above ocular evidence of DW.1 it is clear that there was a vacant space which was used as 29 O.S. No.26709/2019 path to the house of defendant and it was next to the house of this plaintiff. This DW.1 denied that the said vacant space was 6 feet width. It is also necessary to note that this DW.1 admits regarding the existence of 3 feet conservancy lane in Ex.D2. The said evidence is extracted below:
"ನಿಡಿ.2 ರ ಕ್ರಯಪತ್ರದಲ್ಲಿ ಪ್ಷೆಡ್ಯೂಲ್ ಅಸ್ತಿಯ ಉತ್ತರಕ್ಕೆ 3 ಅಡಿ ಸಂದಿ ಇರುವುದಾಗಿ ತೋರಿಸಿದ್ದು ಇರುತ್ತದೆ ಅಂದರೆ ಹೌದು".
35. This DW1 further deposed as follows:
"ವಾದಿಯ ಆಸ್ತಿಯ ದಕ್ಷಿಣಕ್ಕೆ ಮತ್ತು ನಮ್ಮ ಆಸ್ತಿಯ ಉತ್ತರಕ್ಕೆ 4 ಅಡಿ ಪ್ಯಾಸೇಜ್ಇರುತ್ತದೆ ಅಂದರೆ ಹೌದು".
36. It is the contention of the defendant that the 6 feet passage shown in the sale deed executed by Smt.Damayanthi and her family members and the 3 feet conservancy shown in the sale deed executed by Deendayalan and his family members in favour of defendant are exclusively belongs to 30 O.S. No.26709/2019 defendant and the plaintiff has no right over the same. However, it is pertinent to note that in the sale deed Ex.P4 there is a provision for use of water from the well and also road and hence the water from the well can be utilized by the purchaser Basamma as such the vendor of the plaintiff and the vendor's vendor of the plaintiff were given provision for making use of the road which reaches the well. Admittedly the said well is in the property now belongs to Shivalingaiah and as admitted by both PW1 and DW1 the well is now closed.
37. Admittedly, this plaintiff has constructed building in the entire extant of 14 ¾ and 21 ½. Now Shivalingaiah also constructed compound wall around his entire property and one cannot go near well and the well is closed by the grills. As 31 O.S. No.26709/2019 such the well is now no more in usable condition. However, towards Eastern side of property sold by Deenadayalan and others to the defendant there is a 3 feet conservancy lane.
38. The plaintiff in his plaint has shown the suit 'B' schedule property as passage mesuring East-west 13 feet and North-south 4 feet running from East-west and passage measuring East-west 4 feet and North-south 21 ½ feet running from south-north. However the 2nd part of passage of B Schedule i.e passage moves in South-North is measuring East west 03 feet only as per the recitals of sale deed executed by Deenadayalan in favor of defendant. It is made clear that it is only 3 feet conservancy lane is available in the CDEF pathway as against this defendant. Hence, the plaintiff by placing cogent and convincing evidence proved the common passage as 32 O.S. No.26709/2019 discussed above towards to the southern side of plaint A schedule property and 3 feet conservancy lane to the western side of his property as against the property of defendant purchased from Deenadayalan. Accordingly, I answered issue No.2 in the affirmative and Addl. Issue No.1 in the affirmative holding that there is availability of only East-West 3 feet common passage as stated in Ex.D2 sale deed to the western side of plaint A schedule property as against the defendant only.
39. Issue No.3: The plaintiff has contended that towards the southern side and western side of his property there was old sheet building after the common passage area and the defendant acquired the said old sheet building and he demolished the old building and started construction and 33 O.S. No.26709/2019 during the process of construction he tried to encroach and put up construction on the passage area without leaving the setback and encroached on passage area.
40. In the written statement the defendant at para 21 has pleaded that "he has put up a pillar in the remaining 2 ft of conservancy for closure towards northern side for which the plaintiff filed a false complaint against this defendant....." Hence the defendant himself pleaded and admitted that he had encroached the 2 ft conservancy lane which he is not supposed to do. In this regard on perusal of the ocular evidence of DW.1 he deposed that he has not obtained permission from the BBMP for construction of building, he admitted the photos Ex.P8, and Ex.P8(a) to (e) and further deposed that he has installed pillars/columns after the sajja of plaintiff's house 34 O.S. No.26709/2019 window. This DW1 further deposed that he has fixed columns so as to form water sump and the same is found in Ex.P8, 8(a) and 8(b) and the said sump is put up in the property purchased by him from Smt.Damayanthi, even the passage is also visible in the Ex.P8(a) and 8(b) photos. He denied that he has put up sump in the passage. In this regard if the admitted Ex.P8 and 8(a) to (e) are looked into the same shows that it is immediately next to the sajja of window of house of plaintiff the said sump is constructed by installing columns/pillars. He denied that he has closed the road which leads to the well. This DW1 further deposed that in entire extent of his land he has put up column for construction.
41. On perusal of Ex.P8(c) & (d) the same shows that it is next to the plaintiff's wall the construction is made and 35 O.S. No.26709/2019 columns are installed. As admitted by DW.1 the window found in Ex.P8(c) is towards the western side of plaintiff's house. The same shows that no place is left after the wall of the plaintiff there is a installation of column for construction of building. Hence, the defendant though was duty bound to left 3 feet conservancy lane to the western side of plaint A schedule and on the northern side of his property as per the sale deed executed by Deenadayalan in his favour and though he is duty bound to leave passage on the northern side of his proeprty as per the sale deed of defendant under which he purchased property from Damayanthi and others he has not left the same and put up columns in the entire extent without leaving said admitted passage and conservancy lane. The defendant not elicited anything from the PW1 and not 36 O.S. No.26709/2019 produced any evidence to show that the common passage and 3 feet conservancy lane towards the northern side of his property is exclusively belongs to him.
42. The defendant has admitted in his cross-examination that he has put up columns immediately after the sajja of the plaintiff's house window and the same is seen from from Ex.P8(a) and also Ex.P8(b) and defendant has erected wall immediately after the wall of the plaintiff as per Ex.P8(d) and thereby he has not left common passage and thereby he is attempting to construct on the common passage. It is admitted by DW.1 that immediately after putting up column and sump the plaintiff has lodged the complaint before the Bheemanagar Police Station. Hence, the column/pillar erected in extent of 3 feet conservancy on the western side of plaint A schedule 37 O.S. No.26709/2019 property and columns/pillars in the 4 feet passage to the Northern side of defendant's property which is a common passage as per the sale deed Ex-D3 is to be cleared by the defendant. Accordingly, I have answered issue No.3 in the Affirmative.
43. Issue No.4: The plaintiff proved his possession over the suit schedule property, the plaintiff proved that the defendant has erected columns/pillars so as to construct sump in the passage which is enumerated in sale deed Ex.D3 and also erected wall in the 3 ft conservancy enumerated in Ex.D2, a complaint is also lodged before the concerned police regarding the interference of defendant and the same is clear from Ex.P5. Accordingly, the plaintiff is entitled for relief of 38 O.S. No.26709/2019 permanent injunction against the defendant. Accordingly, I have answered issue No.4 in the Affirmative.
44. Issue No.5: I have carefully gone through the decisions relied on by the defendants. In the case on hand it is not the case of the defendants that the suit is bad for want of declaration. Hence, with due respect to the dictum laid down in the Judgments relied on by the defendants the same will not assist the defendant to prove his defence. When the plaintiff was able to establish his possession and also the alleged interference and so also the fixing of columns/pillars for construction of structure in the common passage as observed in issue No.3 he is entitled for the relief sought in the plaint to the extent as observed above in issue No.3. Accordingly, I have answered Issue No.5 in the affirmative. 39
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45. Issue No.6:- In view of the reasoning given above, I proceed to pass the following:-
O R D E R The suit filed by the plaintiff against the defendant is hereby decreed.
The defendant and his agents are restrained by way of permanent injunction from interfering with plaintiff's peaceful possession and enjoyment of the suit 'A' schedule property.
The defendant and his agents are restrained by way of permanent injunction from encroaching or putting up construction over the common passage area. The defendant is directed to remove the illegal construction over the suit 'B' schedule property i.e., in the common passage as observed in issue No.3 within 60 days from the date of this order 40 O.S. No.26709/2019 and if the defendant failed to do so then the plaintiff is at liberty to get it executed through court as per the law.
Parties to bear their own costs.
Draw decree accordingly.
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(Dictated to the Stenographer, transcribed and computerized by her and after corrections pronounced by me in the open court on this the 26th day of September, 2024) Digitally signed by ANITHA ANITHA NANJANAGUDU NANJANAGUDU PARASHIVAMURTHY PARASHIVAMURTHY Date: 2024.10.01 16:11:47 +0530 (Anitha.N.P.) LXXIII Addl. CC & SJ, M.H.Unit, Bengaluru. (CCH-74) 41 O.S. No.26709/2019 A N N E X U R E
1. List of witnesses examined for the plaintiff's side:
P.W.1 : M. Felix
2. List of documents exhibited for the plaintiff's side:-
Ex.P.1 : Certified copy of sale deed dated 24.10.2013 Ex.P.2 : Notice dated 11.11.2019 Ex.P.3 : Sale deed dated 01.12.2015 Ex.P.4 : Sale deed dated 24.02.1975 Ex.P.5 : Police acknowledgment dated 14.11.2019 Ex.P.6 : Complaint dated 14.11.2019 Ex.P.7 : Rough sketch Ex.P.8 : 5 photographs Ex.P.9 : CD Ex.P.10 : Khatha certificate issued by BBMP 2008- 19
Ex.P.11 : 3 photographs
Ex.P.12 : CD
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3. List of witness examined for the defendants side:-
D.W.1 T. Charles
4. List of documents exhibited for defendants side:-
Ex.D.1 : Photos Ex.D.2 : Sale deed dated 01.12.2015 Ex.D.3 : Sale deed dated11.03.2016 Ex.D.4 : Certificate u/s 65B of Indian Evidence Act Ex.D.5 to 11 : Photos and CD Digitally signed by ANITHA ANITHA NANJANAGUDU NANJANAGUDU PARASHIVAMURTHY PARASHIVAMURTHY Date: 2024.10.01 16:11:38 +0530 (Anitha N.P.) LXXIII Addl. CC & SJ, M.H.Unit, Bengaluru. (CCH-74)