Bangalore District Court
H.K. Abdul Sab vs The Bangalore on 7 August, 2017
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BANGALORE CITY. (CCH30)
DATED THIS THE 7th DAY OF AUGUST 2017.
PRESENT; SMT.NAGAJYOTHI.K.A., LL.M.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.NO. 2116/2011
PLAINTIFF: H.K. Abdul Sab,
S/o Late Karim Sab,
Aged about 68 years,
R/at No.4, Adi Andhra
Block, (A.D. Block)
Rajamahal Guttahalli,
Venkataramapura,
Bangalore 560 003
(By Sri.S.K.J & associates -
Advocates)
Vs.
DEFENDANT/S: 1. The Bangalore
Development Authority ,
Kumara Park West,
Bengaluru 560 020,
Represented by its
Commissioner.
2. The Executive
Engineer,
Bangalore Development
Authority, North Division,
BDA complex,
R.T. Nagar,
Bengaluru 560 032.
(By Sri.E.M - Advocate.)
Date of institution of the suit 19/03/2011
Nature of the suit (suit on Injunction Suit
pronote. Suit for declaration
and possession suit for
2 O.S.2116/2011
injunction, etc.)
Date of the commencement of 4.6.2015
recording of the evidence.
Date on which the judgment 07.08.2017
was pronounced
Total duration Year/s Month/s Day/s
06 04 18
JUDG M ENT
This suit is filed for permanent injunction against the
defendants restraining them from interfering with the plaintiff's
peaceful possession and enjoyment and to grant such other
relief of the suit schedule 'B' property and or trying to demolish
the schedule 'B' property.
2. It is averred in the plaint that, the plaintiff is the sole
and absolute owner in lawful and peaceful possession and
enjoyment of the immovable property and hereinafter referred to
as the schedule 'A' property, he having purchased the same
under the registered sale deed dated 6.8.1979. At the time of
purchase of the schedule property, there was a marginal land
measuring 13' x 40' (26.00 Sqft on the southern side of the
schedule 'A' property and the Vendor of the plaintiff had been in
possession of the said marginal land and the predecessor in title
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of the plaintiff had put up construction of a shed in the said
marginal land schedule 'B'. After the purchase of the schedule
'A' property by the plaintiff herein along with schedule 'B'
property the plaintiff has been in lawful and peaceful and
enjoyment of the schedule 'B' property along with the schedule
'A' property, which is evidenced in the sale deed. Bathroom and
latrine has been in existence in the schedule 'B' property right
from the date of purchase of the suit schedule properties. In the
year 1984 one Sri K. Rangaiah has filed a suit in
O.S.No.3731/1984 before the XIV Addl. City Civil Judge,
Bangalore, wherein the plaintiff has been made party first
defendant seeking for the relief of mandatory injunction to
demolish the construction put up by the plaintiff. The said suit
came be dismissed by the court by its order dated 7.8.1989.
Ever since the date of purchase in the year 1979 and prior to
him, admittedly his vendor's were in lawful and peaceful
possession and enjoyment of the schedule 'B' property. The 2nd
defendant, who has no manner of claim, right, title or interest in
or over the schedule 'B' property, has issued a false and
frivolous show cause notice dated 3.2.2011 at the instance and
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instigation of neghbouring owner of the schedule properties.
Hence, files this suit.
3. The defendants appeared through their counsel and
submitted in the written statement that the suit is not
maintainable in law for the reason that plaintiff has not
approached this court with clean hands and suppressed material
facts and as such the suit is liable to be dismissed. In the earlier
suit in O.S.3731/1984 in the suit for declaration in which the
plaintiff herein is the defendant No.1 and defendant No.1 herein
is the defendant No.2 and in the suit it is the case of the plaintiff
that he was purchased the site No.588 old No.4 situated at A.A.
block, Vyalikaval having purchased the same from one Smt.
Susheelamma and he has purchased the marginal along with the
said property. The said suit was filed by K.Rangaiah who is the
owner of the adjacent property of the said marginal land. The
said suit has been disposed off on 7.8.1989. The said judgment
with regard to the findings made against the plaintiff has become
final and the same is not challenged and as such this suit is
hopelessly barred by law of limitation. The law of prescription
already been expired long back. In between site No.4 measuring
30 x 20 ft belonging to the plaintiff and 761/ Vyalikaval
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extension, Bangalore there is a marginal land measuring 13' + 4'
/2 x 30 ft belonging to the defendant No.1. As already stated
the contention f the plaintiff that he has purchased the site No.4
Adi Andhra block Vyalikaval along with marginal from
Susheelamma has been answered in the negative earlier suit and
said findings given in the earlier suit are binding on him and the
question of re-agitating the same issue between the same
parties does not arise at all. In view of the specific provisions
contained in Section 11 of C.P.C , the point of respondent
judicata is involved and as such this court has to dismiss the suit
on the question of maintainability. In fact if the said marginal
land is within the limits of the BBMP, the plaintiff applying for
allotment of marginal land in his favour to the defendant No.1
does not arise at all. There is no cause of action for the suit and
the alleged one is false, frivolous and vexatious. The suit is not
valued properly and no proper court is paid. Hence prays to
dismiss the suit with exemplary costs.
4. In proof of their case, the plaintiff has got examined
himself as PW.1 and relied upon the documents Ex.P.1 to Ex.P.3.
The defendant has got examined as D.W.1 Ex.D 1 and D2 was
marked.
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5. Heard arguments.
6. Considering the facts and circumstances and the material
available in the matter, my predecessor has framed the following
issues as under -
ISSUES
1. Whether the plaintiff proves that he is the absolute
owner in possession of suit schedule property?
2. Whether he further proves the alleged interference
by the defendants on 28.2.2011?
3. Whether suit is barred by time?
4. Whether suit is hit under the principles of
resjudicata?
5. Whether this suit without seeking declaratory relief
of ownership is maintainable?
6. What decree or order?
7. My findings to the above issues are as under:-
Issue No.1: In the partly affirmative;
Issue No.2 : In the Negative,
Issue No.3 : In the Negative,
Issue No.4 : In the Affirmative,
Issue No.5 : In the Negative,
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Issue No.6 : As per final order for the
following-
REASONS
8. ISSUE No. 1 : It is a suit for bare injunction. The
plaintiff contends he is the owner of suit schedule property. The
dispute in respect of schedule 'B' property, which is portion of
schedule 'A' property, i.e., in the southern side of schedule 'A'.
Property and it is contended that the schedule 'B' property is
marginal land measuring 13' x 40' i.e., 26.06 Sq.ft. On the
southern side of schedule 'A' is in possession of vendor of the
plaintiff and he put up construction of the schedule 'B' in the
marginal land. So, even plaintiff after purchase of 'A schedule
property enjoying the 'B' schedule property along with 'A'
schedule property. There was an earlier suit OS No.3731/1984
before the XIV Addl.City Civil Judge for relief of mandatory
injunction and the said suit was filed by K.Rangaiah. In that suit
also it was admitted existence of construction. The later the said
suit was dismissed. So on the basis of which it is further affirms
that the plaintiff in possession since from the period 1979. i.e.,
prior to this purchase his vendor enjoying the disputed property
and he continued to enjoying the same. But, the crucial
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question is that the defendant is none other than BDA and
representing Executive Engineer submitted sufficient documents
for rights in the said marginal land and subsequently, produced
the documents on demolition of the said construction.
9. Plaintiff produced the documents for ownership of
schedule 'A' property and the same was not disputed even by
the defendant.
In the plaint pleading itself the plaintiff stresses on earlier
suit filed by one K.Rangaiah in O.S.3731/1984, which was
adjudicated before XIV Addl. City Civil Judge, Bengaluru wherein
the plaintiff is the 1st defendant. The suit was dismissed and
contends that even in the said suit the same defendant No.2
BDA clearly admitted on existence of construction in the
schedule 'B' property right from the year 1973 and suit was
dismissed on 7.8.1989. However, the defendant contended that
the said suit was filed by owner of the adjacent property of the
said marginal land site No.588, old No.4. The judgment made
against the plaintiff has become final and the same is not
challenged. So the suit is hopelessly barred by law of limitation.
The plaintiff has no jurisdiction to extend the limitation. So on
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the subject plaintiff cannot maintain another suit for permanent
injunction and thus it was hit by Section 11 of C.P.C.
Ex.P.1 sale deed of plaintiff is dated 6.8.1979 executed by
one Rajeshwari and Susheelammal in favour of the plaintiff. The
suit schedule mentioned as property bearing No. 3 /4, east by
Krishnaiah & Rajammala property; west by Susheelammal &
Muniswamappa's house; north by Road; south by
Narasimhaiah's land, measuring 30 x 20 feet. So, the sale deed
is not specifying any land margin. Ex.P.2 shows the Katha
number of suit property is 4. The Judgment of O.S.No.3731/84
filed by K.Rangaiah shows it is a suit for declaration of
injunction. Here also the plaintiff Rangaiah is owner of site
measuring 30 x 20 feet and it shows 1st defendant (plaintiff of
this suit) purchased house constructed on site No.4 from one
Sushellammal situated on the northern side of plaintiff's
premises measuring 30 x 20 feet. The subject of the suit is the
marginal land existing in between premises of Rajeshwari and
the plaintiff Abdul Sab and here also stated that it is the B.D.A
land. On perusal of the same shows it was elaborately discussed
on the marginal land referred in this suit and the above suit are
one and the same. In the cross-examination of PW-1 replied he
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was not known that whether the said Susheelammal and
Rajeshwari his vendor gave application to the B.D.A for
sanctioning the marginal land. But he gave the application for
grant of marginal land, and B.D.A did not made any proceedings
on that application. Even B.D.A were not granted this land to
Rajeshwari. Earlier referred suit was dismissed for the reason
that the marginal land was not granted to the Rajeshwari.
DW-1 in the chief-examination deposed in O.S.3731/1984
the issues are framed as whether the suit land forms part of the
property purchased by the 1st defendant from Smt.
Susheelammal and it was answered as in the 'negative' and 3rd
issue is whether 1st defendant constructed bath room and latrine
abutting the plaintiff's house on the northern side and whether
the said construction is causing nuisance to the plaintiff and it
was answered in the 'affirmative'. In respect of construction of
bath room abutting the plaintiff house answered in the
'negative'. Iissue No.1 is whether the 1st defendant
unauthorizedly occupied the suit land belonged to the 2nd
defendant and had put up illegal construction in it. The 2nd
defendant is B.D.A. So, answer mentioned as 'affirmative' i.e., it
clearly shows it was adjudicated matter. The learned Presiding
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Officer in O.S. 3731/1984 adjudicated that the 1st defendant
plaintiff of this suit unauthorizedly occupied over the land i.e.,
marginal land referred in the plaint was belonged to the 2nd
defendant B.D.A. DW-1 represented defendant B.D.A. She is a
First Division Assistant. She was not cross-examined in respect
of said Judgment. Even while arguing the case the learned
counsel for the plaintiff has not elaborated on this point.
However, this Judgment itself shows that it was marginal land
and concluded it is a B.D.A land. Defendant also specifically
stated that it is belonged to the B.D.A. Accordingly without need
out much discussion, I hold issue No.4 in the affirmative.
The defendants were not denying the plaint schedule 'A'
property. Whereas in respect of schedule 'B' property as I
discussed above in the earlier suit it was clearly adjudicated the
marginal land is not granted to the plaintiff and B.D.A also not
interested in granting the same to the plaintiff. The defendant
produced the document Ex.D1 it clearly mentioned that the
authoritative B.D.A. take possession of the said 250 Sqft
marginal land in the assistance of police and S.T.F. staff of the
B.D.A. Ex.D2 is dated 5.1.2010 shows it defendant took
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possession prior to auction. Hence, I consider issue No.1 partly
affirmative in respect of schedule 'A' property.
Issue No.2: When defendant proves their right over the
suit schedule "B" property and they have the authority to
exercise right over the said portion and Ex.D1 and D2 clearly
shows that they took possession of the property. Hence, I hold
issue No.2 in the negative.
Issue No.3: The defendant submitted in the written
statement that suit is barred by time. whereas the plaint of the
earlier suit is different from present cause of action. The said suit
is different from the cause of action of this suit. In the earlier
suit Rajeshwari alleged nuisance of 1st defendant and while
adjudicating the said matter it was concluded the 1st defendant's
land building existing in the marginal land, but herein the
plaintiff claims his right over the said marginal land. Hence,
finding of the earlier Judgment cannot be considered as barred
by time. Hence, I hold issue No.3 in the negative.
Issue No.5: It is a bare injunction suit whereas plaintiff
himself admits that he has no title over schedule 'B' property
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and he is enjoying the same from 1979. So, before seeking
relief, he must specify his right ones suit "B" schedule property
before perfecting his title he cannot seek permanent injunction
in respect of the schedule 'B' property. Even after the
contention of the defendant the plaintiff has not modify the
relief. Admittedly, when plaintiff has no title or authority over
suit schedule property he cannot seek relief on injunction against
the defendant. The plaintiff has not perfected his title and was
not in lawful possession. The earlier suit itself shows from the
beginning itself the defendant contesting for the suit property
and also taken steps for taking possession of the suit "B"
schedule property. Further, during the pendency of the suit they
took the possession and also . So, the suit property is not in
existence at present condition when such being the case,
defendant is not entitled for any decree prayed in the suit.
The plaintiff even though actively participated in the earlier
suit as Defendant No.1 and 3 and knows he has no authority
over suit schedule property and earlier suit was also adjudicated
said matter elaborately. Instead of challenging the said
Judgment he has field this suit giving one fresh cause of action
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which was not acceptable in law. So I considered awarding cost
also. Hence, I considered issue No.5 in the negative.
Issue No.6: In view of the reasons stated supra, I proceed
to pass the following ;
ORDER
The suit is dismissed with cost of Rs.10,000/-.
(Dictated to the Stenographer, typed by him, corrected and then pronounced by my in the open court, this the 7th day of August, 2017.) (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bangalore City.
ANNEXURE LIST OF WITNESSES EXAMIEND FOR PLAINTIFF :
PW.1. H.K. Abdul Sab LIST OF DOCUMENTS EXHIBITED FOR PLAINTIFF :
Ex.P.
1) Certified copy of registered sale deed dated 6.8.1979
2) Copy of Katha 15 O.S.2116/2011
3) Katha certificate.
LIST OF WITNESES EXAMINED FOR DEFENDANTS:
D.W1 : Smt. H.B Kamalamma LIST OF DOCUMENTS EXHIBITED FOR DEFENDANTS:
Ex.D.
1) Unofficial note
2) Unofficial note dated 5.1.2010
3) R.T.C. from 1/6/1989 to 31/3/2004 (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bangalore City.16 O.S.2116/2011
Judgment pronounced in open Court vide separate judgment.
ORDER The suit is dismissed with cost of 17 O.S.2116/2011 Rs.10,000/-.
XXIX Addl. City Civil Judge, Bangalore City.