Bangalore District Court
Dr.Sumangala Alind Kumar vs Sri.S.C.Kulkarni on 10 November, 2016
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 10th day of November 2016.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.16852/2006
Plaintiff: Dr.Sumangala Alind Kumar,
W/o.Dr.Alind Kumar, aged
about 55 yrs, R/at.No.6, Naidu
Layout, Sanjaynagar, RMV II
Stage, Bengaluru-560094.
(By Smt.A.Nancy Prince, Advocate)
V/S
Defendants: 1. Sri.S.C.Kulkarni,
S/o.Late.C.M.Kulkarni, Major,
No.73-A, 21st Cross, 2nd Block,
Rajajinagar, Bengaluru-10.
2. Aircraft Employees Co-operative
Society Ltd., No.15, 1st Cross,
C.K.C.Garden, Opp. Bengaluru
Institute of Oncology Hospital,
K.H.Road, Bengaluru-27.
By its Secretary.
2 O.S. No.16852/2006
3. Sri.Manoj Anna Rao Kulgod,
S/o.Anna Rao Kulgod, Major,
No.43, AECS Layout, 2nd Stage,
R.M.V.Extension, 4th Main,
3rd Cross, Sanjaynagar,
Bengaluru-94.
(By Sri.Harikrishna.S.Holla, Advocate for defts.No.1 & 3)
(By Sri.K.T.Dakappa, Advocate for deft.No.2)
Date of institution of the suit 27.09.2006
Nature of the suit (Suit for Pro-note, Suit for Declaration &
Suit for Declaration and Possession, Mandatory Injunction
Suit for Injunction, etc.)
Date of commencement of recording 06.07.2011
of the evidence
Date on which the Judgment was 10.11.2016
pronounced
Total duration Year/s Month/s Day/s
10 01 13
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for seeking the reliefs of declaration to declare that the plaintiff is the absolute owner of the plaint 'C' schedule property and also for mandatory injunction to direct the 3rd defendant to demolish the compound put by the 1st defendant encroaching into the plaint 'C' schedule property and also to declare that the plaintiff is entitled for exclusive possession of plaint 'C' schedule property and also to 3 O.S. No.16852/2006 declare that the registered deed of rectification dated 13.10.2003 executed by the 2nd defendant in favour of the 1st defendant is null and void and not binding on the plaintiff and also to declare that the 3rd defendant has no manner of right, title and interest over the plaint 'C' schedule property and for costs.
2. The description of the suit schedule properties as shown in the schedule to the plaint, is as follows:-
SCHEDULE-A All that piece and parcel of the property bearing House List No.6, Khatha No.492 of Geddalahalli Village, Kasaba Hobli, Bengaluru North Taluk, presently No.6, Naidu Layout, RMV II Stage, Sanjay Nagar, Bengaluru-94, measuring East to West 40' and North to South 65' comprising a residential House apprx. of 196 sq.mts. bounded on:
North by: 30' Road;
South by: Site No.43 belonging to 3rd defendant
and Site No.38 of AECS Layout;
East by: Property No.5, Naidu Layout; and on
West by: Property No.7, Naidu Layout.
SCHEDULE-B
All that piece and parcel of the property bearing No.43, formed out of Sy.No.13 of Geddalahalli Village, in AECS Layout, RMV II Stage, 4th Main, 3rd Cross, Sanjay Nagar, Bengaluru-94, 4 O.S. No.16852/2006 measuring East to West 60' and North to South 40' comprising a residential House bounded on:
North by: Private Property/Naidu Layout;
South by: Site No.42, AECS Layout;
East by: Road; and on
West by: Site No.38 of AECS Layout.
SCHEDULE-C
Land measuring 5" x 17' lying on the South Eastern side of the Plaintiff's Property delineated as A, B, C, D in the enclosed sketch (Annexure-F) and marked in Red.
SCHEDULE D All that piece and parcel of site demarcated as Site No.43 in the Layout Plan of AEC Society approved by the BDA as per Board Resolution No.679, dated 16.1.1980 related to the plot of land measuring 4 Acres 13 Guntas in Sy.No.13 of Geddalahalli, Bengaluru North Taluk, measuring North to South: (42 ½' + 42')/2, East to West: 60' and in all 2535 Sq.ft., together with all rights, appurtenances whatsoever underneath and above the surface and bounded on:
North by: Private land; South by: Site No.42; East by: Road; and on West by: Site No.38.
3. Case of the plaintiff, in brief, is as below: -
5 O.S. No.16852/2006
The plaintiff is the absolute owner of suit schedule 'A' property having purchased from Smt.Reddamma, W/o.P.A.Ramaswamy Naidu under a sale deed dated 26.02.1990 and she got the khatha transferred in her name. Thereafter, she obtained a sanction plan dated 25.04.1992 and got a residential building constructed thereon in the year 1993 and presently she is residing in schedule 'A' property along with her family. Towards the South of plaintiff's property lies 2nd defendant's AECS Layout. One M.D.Ramanuja had been allotted suit schedule 'B' property and in turn he sold the same in favour of 1st defendant under registered sale deed dated 17.08.1984. At the time the plaintiff purchased the schedule 'A' property, there was no demarcation between schedule 'A' and 'B' properties. During the year 1992 the plaintiff and her husband were away from the country. They had started the construction their house on schedule 'A' property through a contractor and when they had started building the compound wall on the Southern side of the schedule 'A' property, the 1st defendant taking advantage of the absence of the plaintiff and her husband started causing obstruction and the construction of 6 O.S. No.16852/2006 the compound wall as stated in the plaint on the plea of that the proposed compound wall lies within his boundary and also filed a false compliant against the contractor. Hence, the contractor did not put up any compound wall. Thereupon, the 1st defendant taking advantage of the absence of the plaintiff encroached upon the schedule 'A' property to an extent of 5 x 17 ft., towards the South Eastern portion of schedule 'A' property/suit schedule 'C' property. When the plaintiff returned from abroad in 1994, it become a shock to her and surprise, she found that 1st defendant had put up a compound wall by encroaching in the A-schedule property of the plaintiff which is the encroached suit schedule property is defined as schedule 'C' property. However, despite innumerable requests and visits made by the plaintiff and her husband requesting the 1st defendant to remove the encroachment proved futile. Thereupon, the BMP sent repeated notices to the 1st defendant to remove the encroachment for which the 1st defendant failed to respond. Thereafter, on 13.11.2002 the officials of BMP demolished the compound put up by the 1st defendant with the help of the local police and the plaintiff was directed to construct a 7 O.S. No.16852/2006 compound wall enclosing an area of 5 ft. x 17 ft. of schedule 'A' property, which was encroached by the 1st defendant. The 1st defendant after his return from America during 2003 with the support of the BMP without issuing any notice to the plaintiff demolished the compound put up by the plaintiff during May/June 2003 on the pretext of rectifying the measurement of the site. Again there was no compound wall between schedule 'A' and 'B' properties. As such, the 1st defendant in collusion with the 2nd defendant stealthily got executed a rectification deed by the 2nd defendant in his favour on 14.10.2003 rectifying the measurement of schedule 'B' schedule property so as to regularize the illegal encroachment of schedule 'A' property to an extent of 5 x 17 ft./schedule 'C' property. By the said rectification deed the measurement of the schedule 'B' property was rectified; i.e., schedule 'D' property. Thereupon, the 1st defendant again reconstructed the compound on 11.06.2004 and also foisted a false criminal case against the plaintiff in Sanjaynagar Police Station in CC No.11566/2004 in which the plaintiff was subsequently acquitted. The plaintiff requested the Deputy Commissioner and 8 O.S. No.16852/2006 Commissioner of the BMP to get the schedule 'A' and 'B' properties surveyed and also to measure and put demarcation as per respective title deeds. In the meantime the plaintiff learnt that on
04.11.2004, the 1st defendant sold the schedule 'D' property (i.e., schedule 'B' + schedule 'C' property) with in favour of the 3rd defendant under a registered sale deed dated 04.11.2004. Hence, this suit arose.
4. After issuance of the suit summons and duly served upon them, the defendants No.1 & 3 and defendant No.2 appeared through their respective advocates Sri.Harikrishna.S.Holla & Sri.K.T.Dakappa; thereafter the defendants No.1 & 3 have filed their joint WS. But, the defendant No.2 has not filed its WS.
5. Case of the defendants No.1 & 3, in brief, is as below:-
Defendants No.1 & 3 contended in their WS that the suit is liable to be dismissed in limine with huge costs for the reason of, abusing the process of law and also for suppression of material facts. Suit of the plaintiff is not maintainable against the defendants since for false averments made in the plaint and the suit is bad for non-joinder of Bengaluru Development Authority and 9 O.S. No.16852/2006 Bengaluru Mahanagar Palike as necessary promises. Further it is contended that in the instant case, the BMP has regularized illegal layout formed by the vendor of plaintiff after the formation of Sanjayanagar Ward prior to the formalities of the word, the layout in which the plaintiff has constructed the house has a private layout done without obtaining approval from the Revenue authorities. Prior to the formation of layout the owner of the house has failed to take the following necessary steps as required under law.
i) Conversion of the land residential purposes under Section 93 of Land Revenue Act.
ii) Permission from the urban land authorities.
iii) Approval of payment from Bengaluru Development Authority, which is nodal agency under Section 17 of Bengaluru Development Authority Act.
iv) Approval of House from the Bengaluru Development Authority and Bengaluru Mahanagar Palike before construction.
Further it is contended that in view of above irregularities committed by the vendor of plaintiff, the sale of the site in favour of plaintiff is null and void; therefore, the plaintiff has no locus 10 O.S. No.16852/2006 standee to file this suit. Further it is contended that purchasing of revenue site is an illegal act and the plaintiff while purchasing site should have ensured that his/her site was free from all inconsistencies, particularly with reference to dimensions of the plaintiff site vis as BDA site No.43. On the above said grounds the defendants No.1 & 3 submitted that the suit of the plaintiff deserved to be dismissed and also it is deserved for dismissal for non-payment of deficit court fee.
6. From the above said pleadings, following issues have been framed by my learned Predecessor in title:-
1. Whether the plaintiff proves his title over suit 'C' schedule property?
2. Whether the plaintiff proves that the 3rd defendant has encroached over suit 'C' schedule property?
3. Whether the plaintiff is entitled for the possession of suit schedule property?
4. [Whether the plaintiff proves that rectification deed dtd: 13.3.2003 executed by the 2nd defendant in favour of 1st plaintiff is null and void?] Deleted 11 O.S. No.16852/2006
5. What decree or order?
Issue No.4 is re-casted as below mentioned:-
4. Whether the plaintiff proves that rectification deed dated 13.10.2003 executed by the 2nd defendant in favour of the 1st defendant is null and void?
7. On behalf of the plaintiff, affidavit evidence of plaintiff herself has been filed and she has been examined as P.W.1 and Exs.P.1 to P.25 documents have been got marked.
8. On the other hand, on behalf of the defendants also, affidavit evidence of 3rd defendant has been filed and he has been examined as DW.1 and and Exs.D.1 to D.10 documents have been got marked.
9. Heard, the learned advocates for the plaintiff and defendants and perused the records.
10. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: Negative, Issue No.2: Negative, 12 O.S. No.16852/2006 Issue No.3: Negative, Issue No.4: Negative, Issue.No.5: As per final order, for the following:-
REASONS.
11. ISSUE No.1 to 4: Both these issues are interlinked each other; hence, for avoiding repetition I have taken up both these issues for discussion at one stretch.
12. P.W.1 stated in her chief-examination that she is the absolute owner of immovable property bearing site No.6, khatha No.492 of Geddalahalli Village, Bengaluru North Taluk, presently recognized as No.6, Naidu Layout, Sanjaynagar, RMV II Stage, Bengaluru, which is measuring 40 x 65 ft., it is a plaint 'A' schedule property purchased from one Smt.Reddamma Naidu under deed of sale dated 26.2.1990. After the sale, she got changed the khatha in her name in the BBMP and paying the up to date tax and also obtained the sanctioned plan for construction of the residential building thereon in the year 1993 and she is residing in the 'A' schedule property. It is also P.W.1 stated that towards 13 O.S. No.16852/2006 South of her property there is a AECS Layout formed by 2nd defendant. One D.Ramanuja had been allotted site No.43 formed in Sy.No.13 of Geddalahalli Village, Bengaluru North Taluk, which is measuring 40 x 60 ft. It is described as 'B' schedule property. Later on M.D.Ramanuja sold it in favour of 1st defendant on 17.8.1984 under the registered sale deed. P.W.1 it is further stated that when she purchased the plaint schedule property, there was no any demarcation between plaint A-schedule property and plaint 'B' schedule property of the defendant. It is also stated that during the year 1992 she herself and her husband were away from the country and started a construction in A-schedule property through the contractor. After completion of the construction of her residential house, the contractor started to construct the compound wall on the side of the plaint A-schedule property. For which defendant obstructed the construction of compound wall, which lies within her boundary only. P.W.1 it is also stated that the compound wall constructing is in accordance with the measurements of her sale deed, then also 1st defendant continued to cause obstruction to the contractor of the plaintiff. On account of 14 O.S. No.16852/2006 that, the complaint was also filed by her against 1st defendant in the Sanjaynagar Police Station. Therefore, construction of compound wall on the Southern side of the A-schedule property was stopped by the plaintiff. During that period 1st defendant encroached upon the A-schedule property to an extent of 5 x 17 towards its Southern side, which is described as a C-schedule property. When P.W.1 returned back from the abroad in the year 1994 it came to her knowledge and which caused a shock and surprise to her. Then she personally approached to the 1st defendant to remove the same. Initially he agreed; but did not removed it and he started to give a evasive replies. Near about over a years assured that 1st defendant may make a positive attempt to remove the encroachment. But, he left the country, since his son was learning in America. Therefore, it could not become a possible to the plaintiff to construct the garage portion in the plaint A-schedule property, which was in a dilapidated state and which was collapsed in the year 2002 due to old age and rain fall. Even though P.W.1 tried to contact to the 1st defendant through the E-mail wherein he was in America. He replied through the E-mail that he will not remove the compound 15 O.S. No.16852/2006 wall and insisted to maintain the same status. P.W.1 it is also stated that when there is no way to get set right the dispute she was constrained to complain to the Executive Engineer of BBMP regarding the encroachment of C-schedule property by defendant No.1 and for which defendant No.1 refused to remove the same. P.W.1 it is also stated that officials of the BBMP visited to the plaintiff and defendants properties and verified the title deeds and it was came to conclusion that 1st defendant indeed encroached upon 5 ft x 60 ft. towards Southern side of her A-schedule property. Even though BBMP officers issued a notice to the 1st defendant to remove the construction made in encroached property of plaintiff; i.e., 'C' schedule property, he did not removed it. Finally on 13.11.2002 BBMP officials demolished the compound put up by the 1st defendant with the help of police and on the same day she was directed by the BBMP officials to construct the compound wall, which is abutting an area of 5 ft. x 17 ft. of A-schedule property. It is also P.W.1 stated that even application was given to the Department of Survey and Settlement to conduct the survey of the plaintiff and defendants 'A' and 'B' schedule properties. It is 16 O.S. No.16852/2006 also stated that when the defendant No.1 returned back from America, he approached to the BBMP officers by pressurizing to demolish the compound wall belonging to her and the Commissioner of BBMP without issuing notice to her directed to demolish her compound wall and it was demolished during May/June-2003. It is also P.W.1 stated that 1st defendant colluding with 2nd defendant got executed a rectification deed in his favour on 13.10.2003 by rectifying the measurement of his B- schedule property and to get regularize the illegal encroachment measuring 5 x 17 ft. made in A-schedule property as it is belonging to him, which is the plaint 'C' schedule property and it is also stated that the rectification deed measurement of the B-schedule property was rectified as referred in plaint D-schedule property, which is resisted by her by approaching to the local police and BBMP officials, for which she requested to City Surveyor to survey the 'A' and 'B' schedule properties. Then it was came to notice of P.W.1 that the 1st defendant colluding with the 2nd defendant got executed the rectification deed to get set right the encroachment of C-schedule property as it is a property of the 1st 17 O.S. No.16852/2006 defendant. It is also P.W.1 stated that plaint 'B' + 'C' schedule property is later on sold out in favour of 3rd defendant under registered sale deed dated 4.11.2004, which become a cause of action for filing the suit.
13. Upon perusal of the cross-examination of P.W.1 in page No.12 she stated that according to her sale deed her A-schedule property is 40 ft. East-West and 65 ft. North-South. She admits that in her tax-paid receipts; i.e., Ex.P.4 of Revenue Section of the BBMP measurement of her property is mentioned 40 x (65 ft. +
57)/2; i.e., 19 sq. It is further she stated that after obtaining the construction permission from the concerned Geddalahalli Gram Panchayath she has constructed a house in 1200 sq. ft. and it is also she stated that she has paid the betterment charges also. Later on BBMP officers visited to the spot on her request, when the dispute was arisen in between plaintiff and defendant and they have brought to her notice that near about 17 ft. East-West in length 5 ft. in South-West corner there is a encroachment by the 1st defendant. Thereafter, the said remaining A-schedule property of plaintiff transferred to her name in BBMP. It is also she stated that she has 18 O.S. No.16852/2006 purchased the 'A' schedule property after conversion of land. It is further alleged that 1st and 3rd defendants were not paid any betterment charges relating to encroached property and they are illegally occupied and in enjoyment of the said property. She admitted that she has not obtained construction permission from BBMP or BDA to construct her property in A-schedule property for which she answered that then it was not coming within the area of BBMP or BDA, it was coming within the area of Geddalahalli Gram Panchayath. Accordingly obtained the permission and constructed her house in the A-schedule property. It is denied that 1st defendant has not legally rectified the sale deed belonging to him about the B-schedule property by way of rectification deed and it is further denied that after confirming the said area measuring 17 x 5 ft. belonging to the 1st defendant he constructed the compound wall. Further she answered in her cross-examination that she has got constructed the shed built up with mud, which is in her A- schedule property after leaving the encroached area. It is also she stated that she was requested to 1st defendant to get set right the dispute of C-schedule property in the presence of the panchas and 19 O.S. No.16852/2006 out of court; but 1st defendant refused for it in the year 2002. Therefore, she got demolished her mud construction shed and later on constructed a permanent cement compound wall. Then only started a dispute in between herself and 1st and 3rd defendants in respect of C-schedule property. Further she denied that BBMP officers have surveyed the property No.40 of defendant and confirmed the area of 'B' schedule property is correct and later on the said officers informed that if not satisfied with their decision since the property in dispute is in civil nature, they can approach to the civil court. P.W.1 it is also stated that she has purchased the A- schedule property from one Reddamma, who was the original owner of it and she obtained her mother sale deed, which is with her, if the same is required for deciding this case she can produce the same. It is P.W.1 denied that without got confirming the total area of her A-schedule property and getting the proper survey report she has filed a false suit against the defendants with false allegation of C-schedule property is encroached by 1st defendant and later on it was got rectified through the 2nd defendant and thereafter, it is sold out to 3rd defendant. Thus, the P.W.1 tried to 20 O.S. No.16852/2006 establish in this suit on her behalf that C-schedule property, which is in dispute is coming in the A-schedule property of the plaintiff and she prays to declare the same as she is the absolute owner of C- schedule property and prayed for issuing a mandatory injunction directing the 3rd defendant to demolish the compound wall put up by 1st defendant.
14. On the other hand, in order to disprove the case of plaintiff regarding the allegation made out against the defendant No.1 and 3, 3rd defendant by name Manoj Anna Rao Kulgod is got examined as a D.W.1. He stated in his chief-examination that he is authorized by the 1st defendant to give evidence in this case for himself and defendant No.1 also. Further stated that in the instant case BBMP has regularized the revenue layout formed by the vendor of plaintiff after formation of Sanjaynagar Ward prior to the formalities of the Ward. It is also stated that the plaintiff has constructed the house in a private layout without obtaining the approved from the BBMP prior to the formation of the layout. It is further stated that the necessary steps not taken regarding for obtaining the permission from the Urban Land Authorities and 21 O.S. No.16852/2006 approval of the payment from BDA under Section 17 of the BDA Act and approval of the construction house from BBMP before construction and including without complying the Section 93 of Land Revenue Act, which is speaking about the purpose of conversion of land for the purpose of residential. D.W.1 further stated that, therefore the sale of the site in favour of the plaintiff by its original owner itself is null and void and suit is not maintainable for non-joinder of the BDA and BBMP as a necessary parties. D.W.1 it is stated that the dimensions given in the sale deed of plaintiff dated 26.2.1990 are absolutely false and plaintiff has no better title as the defendant is having better title. It is also stated that Geddalahalli Gram Panchayath is not approved the sanctioned plan for the construction of the plaintiff house in A-schedule property, which is constructed in a agricultural land. Therefore, it is liable to be demolished, which construction is made without leaving set back as required under the law.
15. D.W.1 it is also stated that demarcations of the boundaries are already done in between the property of plaintiff and defendant and as a matter of fact 1st defendant already in 22 O.S. No.16852/2006 possession of marginal land to an extent of 2 ½ x 2 ½ and put up a compound wall with a permission of the 2nd defendant's society. It is also stated that his site is last property in the layout formed by the 2nd defendant, a marginal land adjoining to his site, which is existing in between the approved layout and revenue sites belonging to the 2nd defendant was given to the benefit of 1st defendant as per the rules. D.W.1 it is also stated that since beginning the plaintiff has been stating that she is in possession and enjoyment of site measuring 40 x (65+57)/2 and it is also stating by the plaintiff that measurement of her site as 40 x 65 is wrongly shown in her sale deed, but she has deliberately failed to produce the documents such as approved plan, previous title deeds etc., if she had produced the sanctioned layout plan by approved BBMP then the real truth would come out about that which would be revealed that the plaintiff is in actual possession of site measuring 40 x (65+57)/2 or not. D.W.1 further stated that 1st defendant has not encroached into an extent of 5 x 17 sq. ft. towards South-Eastern portion of the A-schedule property, instead of that she has illegally demolished compound wall of 1st defendant 23 O.S. No.16852/2006 and tried to make a encroachment in the property of 1st defendant by wrongly convincing in the officials of the BBMP, when 1st defendant was in abroad. It is D.W.1 stated that when the Executive Engineer of the BBMP made a help to the plaintiff about the suit schedule property, then he had lodged a complaint to the Commissioner of BBMP, then the Commissioner of BBMP admonished the act of the Engineers and made convenient to the plaintiff and ordered by the Commissioner of BBMP by declaring that the property in dispute; i.e., C-schedule property is within the measurement of the defendant and the permission granted by their AEE to the plaintiff for construction of compound wall in suit schedule property is not correct. D.W.1 it is also stated that the BBMP while regularizing the revenue site; i.e., more particularly the property in possession of the plaintiff is rightly mentioned correct measurement after conducting the survey by the BBMP, which is disclosing that the actual measurement of the property in possession of the plaintiff, which is appearing as mentioned in the document dated 31.1.2004 issued by the BBMP while assessing the tax in respect of property. The corporation authority had 24 O.S. No.16852/2006 mentioned the measurement as 40 x (65+57)/2 and plaintiff is in possession of the same and she is not in possession of measurement 40 x 65 sq. ft. as stated by her. Therefore, she is not entitled for land measuring 5 x 17 lying on the South-Eastern side of plaintiff property, which is C-schedule property. It is further stated that the C-schedule property is a marginal land adjoining to his site, which was belonging to 2nd defendant. It was allotted in favour of the 1st defendant as per the rules and regulations, which is confirmed and regularized by the 2nd defendant through the rectification deed executed in favour of the 1st defendant. It is further answered that because of the above said rectification deed the plaintiff cannot question the order of the 2nd defendant and she cannot claim that she is owner of the C-schedule property. More over, she did not derived any title as the property purchased by her by way of violation and statutory loss. It is also stated that plaintiff has failed to take a steps to get her property regularize through the concerned office. Therefore, she cannot entitled for a relief of that she is entitled for possession of schedule property as it is belonging to her. Through the above discussed evidence D.W.1 tried to 25 O.S. No.16852/2006 convince to this court the allegation made by the plaintiff regarding suit schedule property against either defendant No.1 or defendants No.2 and 3 are not correct and prayed to dismiss the suit of plaintiff.
16. Upon perusal of the cross-examination of D.W.1, it is stated that 1st defendant has purchased the house measuring 60 x 42.5 sq. ft. and it is also admitted that including his site and other adjoining sites are developed by the 2nd defendant, which are coming in the Naidu Layout. D.W.1 it is also stated that he was not aware of that plaintiff also purchased a site measuring 40 x 65 in a same layout and the same is later on came to his knowledge and it is also stated that plaintiff has constructed a house in her site before purchasing his property from the 1st defendant. It is also stated that before purchasing, he visited to 'B' schedule property twice; but he did not discussed with 1st defendant regarding the wrong taken place in respect of the measurement of 1st defendant property. It is further he admitted that 1st defendant has purchased the B-schedule property from its original owner on 17.8.1984 as per Ex.D.3 therein mentioned that the measurement of the 1st 26 O.S. No.16852/2006 defendant purchased property is being 60 x 40 ft. It is also stated that the said property is sold out as per Ex.D.4 by the Secretary of the 2nd defendant on 27.7.1981 in favour of the original owner Ramanujam and its khatha was entered to his name and Ramanujam paid the tax of his property regularly to the BBMP and further D.W.1 stated that he has not produced the said documents. If, the same are available in his house he can produce the same for a proper adjudication of the matter in dispute. D.W.1 further admitted in the cross-examination that near about 19 years taken place for got rectifying the rectification of the B-schedule property measurement in between 1st defendant and 2nd defendant. It is also D.W.1 stated that he cannot say during the above said 19 years period for got rectifying the original sale deed executed by 2nd defendant in favour of the 1st defendant either 1st defendant or his owner Ramanujam were having the necessary documents or not. It is also DW.1 denied that since there was no necessity of get rectifying the sale deed executed in favour of defendant No.1 by Ramanujam, which was having 27 O.S. No.16852/2006 correct measurement as per Ex.D.4; therefore, he did not tried for the same.
17. D.W.1 further stated in his cross-examination, I have seen the colour photo shown by the advocate for plaintiff for the confrontation. It is also admitted that after verifying the photos it is appearing that her house and house of the defendant are appearing in it and all the house are constructed in a similar row. The confronted photos are marked in this case as Ex.P.24 and P.25. It is D.W.1 stated that it is not possible to say that as mentioned in Ex.P.25 his vendor 1st defendant encroached in the property of plaintiff. Further he answered that in the year 1990 the some revenue sites layout were formed outside and surrounding to the Bengaluru and there was used to purchase the such revenue sites from the purchaser and it is also answered that BBMP was issuing the B-schedule khatha to such sites as per their BBMP rules and thereafter they were legalizing with A-khatha. D.W.1 denied that 1st defendant has encroached in the property of the plaintiff for which B-khatha was issued by the BBMP, which was measuring 40 x 65 and she has regularly paid the tax in respect of her above said 28 O.S. No.16852/2006 property. D.W.1 it is also admitted that in the tax-paid receipt of the year 2004 therein mentioned that plaintiff has paid a tax to the measurement of property measuring 40 x (65+57)/2 and it is also admitted that number of correspondence were taken place in between the 1st defendant, who is vendor of his property and BBMP and also plaintiff regarding the allegation of encroachment and also admitted that the police complaint were taken place in respect of the same dispute. It is further D.W.1 answered that when he purchased the property belonging to him by the 1st defendant it was coming in the BBMP and the said instruction is given to his advocate to mention the same in para No.5 of his chief- examination. D.W.1 it is also denied that in para No.4, which is written about the boundaries mentioned in the sale deed dated 26.2.1990 of the plaintiff is false and also therein written that it is a revenue site and having a absolute title over the said property. It is D.W.1 stated that regarding the above said sale deed averments, which are above suggested to him are not complained by him against the plaintiff either to the officer of the BBMP or a Asst. Commissioner or a Executive Engineer of BBMP. D.W.1 admitted 29 O.S. No.16852/2006 that upon Ex.P.6 of the plaintiff construction plan the Secretary of the Geddalahalli Gram Panchayath, Bengaluru North has endorsed as it is approved and which is having his signature and seal of the Secretary. It is also admitted that he has given a application to the BBMP by stating that plaintiff Sumangala had made allegation against his vendor as he is encroached in her property. D.W.1 it is answered in his cross-examination that formally whenever property likes sites will be purchased, such purchaser will be get entered the measurement of the property in the concerned Registrar of the office; but, he does not know whether the plaintiff has got entered the same or not. D.W.1 it is stated that when he purchased his property from 1st defendant under the registered sale deed it was measuring 60 x 40 ft. Further he admits that in his sale deed and also mother sale deed of his vendor 1st defendant the above said same measurement is mentioned. D.W.1 it is also stated that the rectification deed is taken place about the measurement of his property after due discussion with 1st defendant and 2nd defendant and it is got rectified as (42.5+42.5)/2 x 60 and he does not know that whether the 1st 30 O.S. No.16852/2006 defendant had given a application to get correct the measurement or not. D.W.1 further stated that he does not know that after the plaintiff making a allegation against the 1st defendant regarding encroachment; thereafter, 1st and 2nd defendants got corrected the measurement through the rectification deed by paying a additional amount of Rs.70,000/-. D.W.1 it is also stated that he does not know since the 1st defendant has encroached in the property of plaintiff he did not tried for get rectifying the measurement of his property. D.W.1 it is further denied that there is appearing that his vendor 1st defendant has encroached in the property of the plaintiff measuring 5 x 17 sq. ft. for which he answered that the plaintiff herself has encroached in the property of the 1st defendant. It is also D.W.1 stated that the measurement of his property is correct as mentioned in sale deed executed by 1st defendant in his favour and the said property is till today in his possession and according to his document related to his site obtained by the 1st defendant are correct and measurement also mentioned correctly. It is denied that except the measurement of his site all other sites are measuring 31 O.S. No.16852/2006 40 x 60 ft. and they are in a similar in the measurement. D.W.1 it is stated that even in the mother deeds and his sale deed the measurement of site belonging to him was 40 x 60 ft., later on it is rectified to (42.5+42.5)/2 x 60. D.W.1 he further stated that he does not know site No.42 of the Rangaswamy and all other sites coming back side belonging to one Gudoor including their mother deeds are having the similar measurement 40 x 60 ft.; but they have got registered as 35 x 60 ft. It is denied that since all the sites are situated in Aircraft Employees Layout all will have the similar measurement. There is no chance to show the excess measurement of the sites. D.W.1 it is denied that in the absence of the plaintiff and her husband, 1st defendant has encroached in her property measuring 2.5; therefore, the property of the 1st defendant become (42.5+42.5)/2 x 60. It is denied that he has been intentionally denying by taking in mind that if the real truth of the property of the plaintiff and defendant are explained by him. Then the occasion comes to him that, the encroached property by the defendant has to be returned to the plaintiff. Thus, in total DW.1 in his entire chief and cross-examination categorically stated that his 32 O.S. No.16852/2006 vendor 1st defendant never encroached in the property of the plaintiff; i.e., 'C' schedule property and it is also stated that rectification deed is got rectified by 1st defendant with 2nd defendant by purchasing the marginal land for a Rs.70,000/-, then the plaintiff is claiming the said marginal land, which is C-schedule property as her property and the 1st defendant has encroached in it belonging to her etc.
18. Upon perusal of the sale deed produced by the plaintiff dated 26th February 1990 executed by Reddamma in favour of plaintiff of this case for a sale consideration of Rs.1/- lakh, which discloses that khatha No.492 of Geddalahalli Village, measuring East-West: 40 ft. and North-South: 65 ft. comprising 10 x 20 ft RCC roofing house, electrified with AEH connection and another structure 8 ft - 5 inch shed with asbestos sheet roofing is sold out to plaintiff; but in Ex.P.4 a khatha extract of the plaintiff property the measurement is mentioned 40 x (65+57)/2; i.e., 19 sq., for which a new property No.6 is given by the BBMP, which coming in Sanjaynagar Ward No.100 of BBMP. Ex.P.11 to P.15 are the complaint given by the plaintiff to the Deputy Commissioner, 33 O.S. No.16852/2006 Bengaluru West, of the Corporation and Revenue Inspector of the BBMP Ward No.100, Yeshwanthpura, in all the complaints it is alleged that the 1st defendant Kulakarni has encroached in her property and requested to survey the sites of belonging to her and defendant No.1 and others adjoining area of the other sites coming in both AECS Layout and Naidu Layout and requested to demarcate the boundaries etc. Ex.P.17 is a sale deed of the defendant property therein shown the measurement East-West: 60 ft and 40 ft South-North and produced the abstract of enlarged sketch by mentioning in site No.6 of the Naidu Layout belonging to the plaintiff there is a encroachment made by the owner of the site No.43; i.e., 1st defendant in her property. On the basis of these documents and Ex.P.24 and P.25 plaintiff is making a allegation that the defendant has encroached in the property of the plaintiff; i.e., C-schedule property, it is belonging to the plaintiff only. Even in the cross-examination also she has directly denied the suggestion of defendant advocate by stating that the said property is belonging to the plaintiff. But, the 1st defendant colluding with the BBMP Commissioner, it is got rectified to some more extent instead of the 34 O.S. No.16852/2006 B-schedule property purchased by the 1st defendant. It is pertinent to note that except the sale deeds no any documents like survey report etc., are placed before this court by the plaintiff for enlightening that C-schedule property is belonging to the plaintiff and it is encroached by the 1st defendant. On the other hand, upon perusal of the Ex.D.1 Possession Certificate of the 1st defendant relating to site No.43 in Sy.No.13 of the Geddalahalli Village, Bengaluru, therein shown the measurement North-South:
(42.5+42)/2, East-West: 60 ft. Ex.D.2 is a sale deed executed by 1st defendant in favour of the 3rd defendant dated 4.11.2004 about the above said same property for sale consideration of Rs.30/- lakh. Even in the said documents also the similar measurement in North- South is (42.5+42)/2 x East-West: 60 ft. Ex.D.3 is a another sale deed dated 27th July 1981 executed by G.Gonappa, Secretary of the Aircraft Employees Co-operative Society in favour of one M.D.Ramanuja, who is a vendor of 1st defendant, wherein the measurement of property is mentioned North-South: 40 ft and East- West: 60 ft. Rectification Deed dated 13.10.2003 Ex.D.5 is disclosing that it is taken place in between the 2nd defendant and 1st 35 O.S. No.16852/2006 defendant wherein rectified the measurement of the property site No.43 in the layout plan, which is approved by the BDA as North- South: (42.5+42)/2 and East-West: 60 ft. Even in the rectification deed it is also mentioned in page No.4 para No.2 that the stamp duty has been paid for the remaining extent of 135 sq. ft. for having executed this document by the 2nd defendant in favour of the 1st defendant by remitting a Rs.70,000/-. Even in Ex.D.6 and D.7 of the site No.43 belonging to 1st defendant also the above said same measurement is mentioned as it is belonging to the 1st defendant. In Ex.D.8 and D.9 also mentioned the same measurement of the property of 1st defendant. Ex.D.10 is submitted by the 1st defendant to the Commissioner of BBMP with request to give a instruction to his neighbourer to ensure that no encroachment is made into his property and advised to the plaintiff to relocate her garage wall within her side of property line. Through the documents of the defendant it is appearing that at the time of purchasing the site No.43 by the 1st defendant as per Ex.D.1, it is measuring (42.5+42)/2 North-South x 60 ft. East-West and even in Ex.D.2 a sale deed executed by 1st defendant in favour of 3rd 36 O.S. No.16852/2006 defendant also disclosing the same area as a property belonging to the 1st defendant. Ex.D.5 which is later on got rectified the sale deed executed by 2nd defendant in favour of the 1st defendant is disclosing that a marginal land is purchased by the 2nd defendant for Rs.70,000/-, which is measuring 135 sq. ft. and accordingly the property of the defendant become a (42.5 ft.+42)/2 x 60 ft. in site No.43, Sy.No.13 of the Geddalahalli Village. On careful consideration of the entire cross-examination of the D.W.1 he has fully supported the case of defendant, nowhere admission is given as the 1st defendant has encroached in the property of the plaintiff, which will be called in this case as a C-schedule property. It is also I would like to say that there is only bare allegation made by the plaintiff against the 1st defendant and 3rd defendant regarding the encroachment of 1st defendant in her property; i.e., C-schedule property is belonging to her. It is also I would like to say that in oral and documentary evidence of the plaintiff she stated that she had given a application to the Survey Department to survey the property of the plaintiff and 1st defendant including the sites of neighbourers and to give the report of the correct measurement of 37 O.S. No.16852/2006 her property. But, later on she did not made efforts to get survey her property. No such any document is placed by the plaintiff before this court regarding encroachment of the defendant in her property and the C-schedule property is belonging to her. Except the sale deeds and some tax paid receipts and property extract of her property No.492 of Geddalahalli Village; i.e., site No.6 given by the BBMP, no such any documents are placed regarding to prove the encroachment of 1st defendant in her property. It is true that D.W.1 has admitted during in cross-examination about the Ex.P.24 and P.25 that the house of the plaintiff and defendant are appearing and they are also appearing in a similar row. But, only on the admission of the D.W.1 this court cannot come to conclusion that there is a alleged encroachment is made by the 1st defendant in the property of plaintiff. It is also I would like to say that once the Executive Engineer stated by visiting to the property of the plaintiff that the 1st defendant has encroached in the property of the plaintiff and given instruction to the plaintiff to construct a compound wall in C-schedule property and warned to the 1st defendant to get remove his compound wall and another conflicting 38 O.S. No.16852/2006 opinion is expressed by the Commissioner of the BBMP by admonishing the opinion of the Executive Engineer and stated that no any encroachment is made by the defendant in the property of the plaintiff and defendant can get construct the compound wall in his property, for which plaintiff is disputing is not a property of the plaintiff. Thus when being the conflicting opinion about the suit schedule property by the BBMP officers only there is no any survey records either of the Executive Engineer or BBMP Commissioner placed before this court to come conclusion about the property in dispute. So, for all the above discussed reasons it is appearing in this case that the plaintiff has failed to prove her title over the suit schedule property and a alleged encroachment of the 3rd defendant over the C-schedule property and also she is failed to prove that she is entitled for the possession of the C-schedule property as claimed for and also plaintiff failed to prove that the rectification dated 13.10.2003 executed by the 2nd defendant in favour of the 1st defendant is collusively prepared for depriving the rights of plaintiff over the C-schedule property. Regarding this categorically discussed in the rectification deed by stating that 39 O.S. No.16852/2006 marginal land of 135 sq. ft. is sanctioned to the 1st defendant by got remitting Rs.70,000/- from him to the 2nd defendant. Even about this matter D.W.1 has categorically stated nothing admission is obtained from the mouth of D.W.1 that the said C-schedule property is collusively inserted in the rectification deed Ex.D.5 for duping the property of the plaintiff. Under such circumstances, in all detailed discussions made in the above said paras about the all issue No.1 to 4 and ultimately come to conclusion that the plaintiff has not succeeded to prove the issue No.1 to 4. Accordingly, I would like to answer issue No.1 to 4 against the plaintiff as a Negative.
19. ISSUE No.5: For the reasons discussed in Issue No.1 to 4, I proceed to pass the following:-
ORDER.
Suit of the plaintiff is hereby dismissed without costs.40 O.S. No.16852/2006
Draw the decree accordingly.
(Dictated to the Stenographer, thereof corrected and then pronounced by me in the open court on this the 10th day of November, 2016).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witness examined for the plaintiff:
P.W.1 - Dr.Sumangala Alind Kumar List of documents exhibited for the plaintiff:
Ex.P.1 - Sale deed dated 26.2.1990 executed by Reddamma in favour of P.W.1 Ex.P.2 - Tax receipt Ex.P.3 - Khatha Certificate Ex.P.4 - Extract of house tax assessment list Ex.P.5 - Tax receipt Ex.P.6 - Building plan Ex.P.7 - Tax receipt Ex.P.8 - Endorsement issued by BBMP Ex.P.9 - Letter of Rindlace Bank Ex.P.10 - Copy of the complaint to the Deputy Commissioner Ex.P.11 - Acknowledgement issued by BBMP Ex.P.12 & 13 - Copies of the complaint to Deputy Commissioner Ex.P.14 - Copy of the complaint to BBMP Ex.P.15 - Representation to the Corporation Ex.P.16 - E-mail letter 41 O.S. No.16852/2006 Ex.P.17 - C/C of the sale deed of the defendant Ex.P.18 - Copy of the complaint to the police Ex.P.19 - Copy of letter to City Surveyor Ex.P.20 - Copy of complaint to the police Ex.P.21 - Copy of representation to the District Commisioner Ex.P.22 - C/C of the sale deed dated 4.11.2004 Ex.P.23 - C/C of rectification deed dated 13.10.03 Ex.P.24 & 25 - Photos List of witness examined for the defendants:
D.W.1 - Sri.Manoj Anna Rao Kulgod List of documents exhibited for the defendants:
Ex.D.1 - Possession Certificate dated
25.11.2003 issued by 2nd defendant
Ex.D.2 - Original registered sale deed dated
04.11.2004 executed by S.C.Kulkarni
in favour of 3rd defendant
Ex.D.3 - Original registered sale deed dated
27.07.1981 executed by 2nd defendant
in favour of M.D.Ramanuja
Ex.D.4 - Original registered sale deed dated
17.08.1984 executed by
M.D.Ramanuja in favour of
S.C.Kulkarni
Ex.D.5 - Original registered rectification deed
dated 13.10.2003 executed by 2nd
defendant in favour of S.C.Kulkarni
Ex.D.6 & 7 - Encumbrance Certificates dated
12.12.2003 & 22.09.2004 respectively
Ex.D.8 - Application for change of khatha
certificate of plaintiff
Ex.D.9 - Sketch
42 O.S. No.16852/2006
Ex.D.10 - Letter dated 30.06.2002 from
S.C.Kulkarni to AEE Corporation.
(Bannikatti Hanumanthappa.R.)
IV Addl.City Civil & Sessions Judge,
Mayohall Unit, Bengaluru.
43 O.S. No.16852/2006