Bangalore District Court
Smt.S.R.Sumithra vs ) The Commissioner on 5 February, 2021
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for Judgment
in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY - (CCCH.11)
Dated this the 5th day of February 2021
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.No.8987/2014
PLAINTIFF SMT.S.R.SUMITHRA
W/o.Sri.Vijayakumar,
Aged about 47years,
R/at No.M-117, 5th Main,
7th Cross, L.N.puram,
Bengaluru -560 021
[By Pleader Sri.Nagaiah]
/Vs/
DEFENDANTS 1) THE COMMISSIONER
Bruhat Bengaluru Mahanagara Palike,
Bengaluru
[By Pleader Sri.Prakasha]
2) THE ADDITIONAL DIRECTOR
GENERAL OF POLICE,
Bengaluru Metropolitan Task Force,
H.O. BBMP, Bengaluru
[Exparte]
OS.NO: 8987/2014
2
Date of Institution of the suit : 21.11.2014
Nature of the Suit : Injunction
Date of commencement of recording
of evidence : 24.08.2017
Date on which the Judgment was
pronounced : 05.02.2021
Year/s Month/s Day/s
Total Duration : 06 02 14
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This suit is filed by Plaintiff for permanent injunction restraining Defendants from interfering with suit schedule property and from demolishing the building constructed thereon.
OS.NO: 8987/2014 3
2) Plaintiff's case is that she is the absolute owner in possession and enjoyment of suit schedule property, viz., Property bearing Municipal No.37, PID No.37-119-37, 1st Main Road, Sampige Layout, Ranganathapura, Ward No.36, Bengaluru, measuring East to West : 30 feet and North to South : 30 feet, which came to be purchased by her from Sri.S.Vijayakumar and Sri.C.Puttaiah vide registered Sale Deed dated 30.11.2013. It is stated that khatha of suit schedule property has been transferred in her name in BBMP and up to date tax has been paid to BBMP relating to suit schedule property.
3) It is stated that, at the time of purchasing suit schedule property, there had already been building existing therein.
4) It is stated that suit schedule property is part and parcel of Sy.No.47 of Malagala Village, in which Defendant No.1 has no manner of right, title OS.NO: 8987/2014 4 and interest. It is stated that on 10.11.2014 Defendants made attempt to demolish the building in suit schedule property without having recourse to law, contending that it comes within Sy.No.46 of Malagala Village. Defendants have no authority under law to demolish the building constructed in suit schedule property without there being survey of the suit schedule property in the presence of Plaintiff. Hence, prays for decree.
5) Summonses issued to Defendants were duly served. Defendant No.1 marked appearance through his Counsel. Defendant No.2 remained absent.
6) Defendant No.1, in his written statement, states that suit is not maintainable as no statutory notice has been issued stating the cause of action, the relief sought for and the name and place of Plaintiff. Defendant No.1 represents the OS.NO: 8987/2014 5 Government, which is not made as party. Hence, suit is bad for non-joinder of necessary party.
7) It is stated that suit schedule property is part and parcel of Sy.No.46. As per survey report, suit schedule property comes within the limit of Sy.No.46 of Malagala Village, which is known as 'Balaiahana Kere'. Previous vendors of the suit schedule property had no right or title over suit schedule property. Sale Deed executed by previous owners is not lawful and on the basis of that Plaintiff cannot claim right or title over suit schedule property. By misleading Defendant No.1, Plaintiff got khatha in her name and same does not confer ownership or title on her. Identity of the property is in dispute. Defendant No.1, being a statutory authority, is having right to demolish an unauthorized construction. Hence, prays for dismissal of the suit.
OS.NO: 8987/2014 6
8) Issues that have been framed by this Court are as follows :
1) Whether the Plaintiff proves that the Plaintiff is in lawful possession of the suit schedule property as on the date of filing of the suit?
2) Whether the Plaintiff proves that the defendants are interfering with the peaceful possession of the suit schedule property by the plaintiff?
3) Whether the suit in the present form is maintainable one, in view of the alleged non-compliance of the statutory notice to the defendants?
4) Whether the Government of
Karnataka is necessary party in
the suit?
5) Whether the plaintiff is entitled for the reliefs sought for?
6) What decree or order?
9) GPA Holder of Plaintiff, Sri.S.Vinaykumar has got examined as PW.1 and got marked Exs.P.1 to P.51 [Exs.P.50 and P.51 are marked through DW.1] in support of Plaintiff's case. Defendant No.1 has examined Assistant Executive Engineer as DW.1 and got marked Exs.D1 to D.22 to prove its case.
OS.NO: 8987/2014 7
10) Heard learned Counsel for Plaintiff and Defendant No.1. Perused the records.
11) My findings on the above issues are as follows :
Issue No.1 - In Affirmative;
Issue No.2 - In Affirmative;
Issue No.3 - In Affirmative;
Issue No.4 - In Negative;
Issue No.5 - In Affirmative;
Issue No.6 - As per final order, for the following :
REASONS
12) Issue No.3 and 4 : By this suit, Plaintiff has sought for permanent injunction against Defendants restraining them from interfering with suit schedule property and from demolishing the building therein.
13) 1st Defendant's contention is that statutory notice as required under Section 482 of the OS.NO: 8987/2014 8 Karnataka Municipal Corporation Act, 1976 has not been issued to Defendant No.1 before institution of suit and suit has been instituted without making the Government as party. Hence, suit is liable to be dismissed.
14) Section 482 of the Karnataka Municipal Corporation Act, 1976 provides that no suit shall be instituted against municipal authority, officers and agents without there being issued two months' prior notice. It is worthwhile to read Section 482 of the Karnataka Municipal Corporation Act, 1976, which reads thus :
"482. Institution of suits against municipal authority, officers and agents. - (1) No suit shall be instituted against the Corporation or any municipal authority, Corporation Officer or servant, or any person acting under the direction of the same, in respect of any act done in pursuance or in execution, or intended execution of this Act or any rule, bye-law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act or any rule, bye- law, regulation or order made under it until the expiration of [Sixty days] after a notice has been delivered or left at the Corporation office or at the place of abode of such officer, servant or person, stating the cause of action, the relief sought, and OS.NO: 8987/2014 9 the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.
(1-A) A suit to obtain an urgent or immediate relief against the Corporation or any municipal authority, Corporation Officer or servant in respect of any act done or purporting to be done by such officer or servant in his official capacity, may be instituted with the leave of the Court, without serving any notice as required by sub-section (1), but the Court shall not grant relief in the suit, whether interim or otherwise except after giving to the Corporation Officer or servant, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied after hearing the parties that no urgent or immediate relief need be granted in the suit, return the plaint, for presentation to it after complying with the requirements of sub-section (1). (2) xx xx xx (3) xx xx xx (4) xx xx xx (5) xx xx xx "
15) A bare reading of Section 482(1) makes it clear that, before institution of the suit, it is mandatory to issue two months' prior notice to municipal authority in respect of the act done under the Karnataka Municipal Corporation Act, 1976, OS.NO: 8987/2014 10 stating the cause of action, the relief sought and the name and place of abode of Plaintiff. Sub- section (1A) of Section 482 further makes it clear that such suit may be instituted with the leave of the Court without serving notice as required by sub- section (1) where a suit in which an urgent or immediate relief is sought for.
16) Above aspect of the matter has been dealt in Devi Singh vs. Municipal Corporation, Hyderabad, [(1973) 4 SCC 66]. The Hon'ble Supreme Court, while dealing with Section 477 of the Hyderabad Municipal Corporation Act, 1950, which is akin to Section 482 of the Karnataka Municipal Corporation Act, 1976, was pleased to hold that "The question whether a notice under Section 477 was necessary has to be decided on the averments made". Para-12 of the judgment reads as follows :
"12. We may dispose of the legal points. As regards the requirement of a notice under Section 447 of the Corporation Act, OS.NO: 8987/2014 11 that section provides that no suit shall be instituted against the Corporation, Commissioner, municipal officer or servant in respect of any act done or purported to be done in pursuance of execution or intended execution of the Act, or in respect of any alleged neglect or default in the execution of the Act, until the expiration of one month next after a notice had been served on the Corporation or officer concerned in the manner indicated in the section. This is what the High Court said on the point :
" It cannot be gainsaid that the acts complained of by the plaintiff were acts done by the Corporation in pursuance of its powers and duties under the Act. Under Section 59 of the Act the corporation is empowered to make provision for public parks, gardens, playgrounds and recreation grounds, while under Section 56 of the Act the Corporation is empowered to remove obstructions upon public places."
The question whether a notice under the aforesaid section was necessary has to be decided on the averments made. It was never the case of the plaintiff that the defendant Corporation was acting or purported to act under the provisions of the Act. The dispute raised related to the ownership of the property as also its possession. We have not been shown any provision in the Corporation Act, by which the Corporation or its officers were entitled to either take possession of another person's property or retain its possession or dispossess a person who is already in possession without having recourse to the ordinary remedies under the law. We are wholly unable to understand how Section 56 of the Corporation Act could be of any avail to the Corporation in the matter of notice under Section 447 of the Act. The whole controversy between the parties OS.NO: 8987/2014 12 centered on the question whether the Bazaar was the property of the plaintiff and was in his possession at the time of the institution of the suit. That had nothing to do with any act done or purported to be done in pursuance of execution or intended execution of any provision of the Corporation Act. The learned counsel for the Corporation has not been able to show how the suit as laid and framed attracted the applicability of Section 447 of the Corporation Act. We would, accordingly, hold that under the aforesaid section no notice was necessary before the institution of the suit."
17) Instant suit has been filed for permanent injunction against Defendants based on Plaintiff's title and possession over suit schedule property, contending that Defendants made an attempt to demolish the building constructed over suit schedule property without having recourse to law. It is not at all the case of Plaintiff that Defendant No.1 was acting or purported to act under the provisions of the Karnataka Municipal Corporation Act, 1976.
18) Moreover, Bruhat Bangalore Mahanagara Palike [BBMP] is a Body Corporate. Commissioner appointed by the Government is a whole time OS.NO: 8987/2014 13 officer of the Corporation. He is paid out of the Corporation fund. He shall be vested with executive power subject to limitations as envisaged under the Karnataka Municipal Corporation Act, 1976. He has been rightly made as party in this suit. Plaintiff is claiming to be the owner in possession of suit schedule property. In order to protect her interest in suit schedule property against the alleged interference of Defendant No.1, Government is not at all proper or necessary party to this suit and issue of notice under Section 482 is not at all required and answer the above Issues accordingly.
19) Issues No.1, 2 and 5 : Plaintiff contends that she purchased suit schedule property vide registered Sale Deed dated 30.11.2013. Khatha of suit schedule property got transferred in her name in BBMP. She has paid up to date tax. Defendants, having no manner of right, title and interest, made OS.NO: 8987/2014 14 an attempt to demolish the building constructed in suit schedule property.
20) On the contrary, Defendant No.1 contends that suit schedule property comes within Sy.No.46 of Malagala Village, which is known as 'Balaiahana Kere'. Defendants are having authority to demolish an unauthorized construction.
21) GPA Holder of Plaintiff has deposed as PW.1 reiterating the plaint averments. Documents marked on behalf of Plaintiff are at Exs.P.1 to P.51. Ex.P.1 is General Power of Attorney executed by Plaintiff before the Notary on 19.08.2017, whereby Plaintiff has appointed PW.1 as her attorney to prosecute this suit. Ex.P.2 is certified copy of Sale Deed dated 30.11.2013 executed by erstwhile owners Sri.S.Vinaykumar and Sri.C.Puttaiah in favour of Plaintiff relating to suit schedule property. Ex.P.2 is duly registered before the Sub-Registrar, Vijaya Nagar, Bangalore, as per Document OS.NO: 8987/2014 15 No.3465/2013-14. Exs.P.3 and P.4 are Khatha Certificates dated 07.0.2018 and 22.09.2018 in respect of suit schedule property issued by BBMP in the name of Plaintiff. Ex.P.5 is Khatha Certificate in respect of suit schedule property issued by BBMP in the name of Holder (Sri.Vinaya Kumar.S). Exs.P.6 and P.7 are Khatha Extracts dated 22.09.2018 and 07.09.2018 in respect of suit schedule property issued by BBMP in the name of Plaintiff. Ex.P.8 is Khatha Extract dated 14.08.2013 in respect of suit schedule property in the name of Holder (Sri.Vinaya Kumar.S). Exs.P.9 and P.10 are House Tax Assessment Register for the period from 01.04.1996 to 1999 and 01.10.1995 to 27.03.2004 relating to suit schedule property which stands in the name of Sri.S.Vinaya Kumar. Exs.P.11 to P.22 and P.28 are tax paid receipts for having paid tax to BBMP for the period from 2001 to 2013-14 by Holder (Sri.S.Vinaya Kumar). Exs.P.23 to P.27 are tax paid receipts for having paid tax to BBMP for the period OS.NO: 8987/2014 16 from 2004-15 to 2018-19 by Plaintiff. Exs.P.29 and P.30 are Certificates dated 29.03.2001 and 27.03.2004 issued by BMP in the name of Holder (Sri.S.Vinaya Kumar) wherein certification is made to the effect that khatha of suit schedule property has been entered in the name of Holder (S.Vijaya Kumar). Ex.P.31 is Demand Notice issued by BMP to Holder (Sri.S.Vinaya Kumar) calling upon him to pay the property tax. Exs.P.32 and P.33 are show-cause notices dated 29.01.2002 and 24.01.2004 issued to Sri.S.Vinaya Kumar regarding payment of property tax. Exs.P.34 and P.35 are Certificates dated 11.04.2001 and 30.12.2013 issued by BBMP certifying that survey number of suit schedule property is tallying with the municipal number given by BBMP.
22) Ex.P.36 is Encumbrance Certificate for the period from 01.04.2004 to 11.10.2018. It reveals sale transactions of erstwhile owners and Plaintiff OS.NO: 8987/2014 17 relating to suit schedule property. Exs.P.37 and P.38 are electricity Bill and Receipt. EX.P.39 is CD.
23) Ex.P.40 is Registration Certificate issued by Registrar of Societies, Government of Karnataka on 02.05.1998 which discloses that 'Mythri Educational Institution' has been registered under the Karnataka Societies Registration Act, 1960 vide No.67/98-99. Ex.P.41 is Certificate which goes to show that 'Mythri Educational Institution' is permitted to start 1st to 5th standard English medium school permanently. Ex.P.42 is Certificate which goes to show that 'Mythri Educational Institution' is permitted to start 1st to 4th standard Kannada medium school. Ex.P.43 is certificate issued by BEO to start pre-primary school. Ex.P.44 is Executive Committee Members' List for the year 2003-04 of 'Mythri Institution'. Ex.P.45 is Certificate issued by Government for having submitted the list of Executive Committee Members of 'Mythri OS.NO: 8987/2014 18 Institution' for the year 2003-04. Exs.P.46 to P.48 are photos of the building and Ex.P.49 is CD.
24) Ex.P.50 is certified copy of Order dated 29.05.2019 passed in WP No.6579/2016 filed by Plaintiff against the State of Karnataka and another, whereby the Hon'ble High Court was pleased to quash the criminal proceedings initiated by Bengaluru Metropolitan Task Force Police against Plaintiff. Ex.P.51 is certified copy of Order Sheet dated 28.06.2017 of Karnataka Land Grabbing Prohibition Special Court, Bengaluru, whereby criminal case initiated against Plaintiff has been closed in view of the Order of the Hon'ble High Court of Karnataka.
25) On the contrary, Assistant Executive Engineer of Defendant No.1 has deposed as DW.1 reiterating the written statement averments. Documents marked on behalf of Defendant No.1 are at Exs.D.1 to D.22. Ex.D.1 is list of documents filed OS.NO: 8987/2014 19 by Police in Crime No.128/2013. Ex.D.2 is charge- sheet filed in Crime No.128/2013 against Plaintiff, who is shown as Accused No.8, for the offence punishable under Sections 192(A) and 192(B) of Karnataka Land Revenue Act. Ex.D.3 is First Information Report registered on the complaint dated 18.12.2013 filed by one Sri.R.Prakash. Ex.D.4 is spot panchanama dated 24.11.2014 drawn by the Police in Crime No.128/2013. Ex.P.5 is Police Notice dated 28.01.2014 addressed by the Dy. Superintendent of Police to Revenue Inspector for furnishing supporting documents in respect of 'Mythri Institution'. Ex.D.6 is report submitted by Village Accountant. Ex.D.7 is statement given by Revenue Inspector. Ex.D.8 is Record of Rights in respect of Sy.No.46 of Malagala Village. Ex.D.9 is sketch of Sy.No.46. Exs.D.10 to D.16 are survey Tippani relating to Sy.No.46 of Malagala Village. Ex.D.17 is reminder letter dated 28.10.2914 issued by Dy. Superintendent of Police to Tahasildar for OS.NO: 8987/2014 20 furnishing particulars regarding encroachment of 'Balaiahna Kere'. Ex.D.18 is letter dated 31.10.2014 issued by Tahsildar to Dy. Superintendent of Police. Ex.D.19 is survey sketch of Sy.No.46. Ex.D.20 is topographical survey sketch of Sy.No.46. Ex.D.21 is letter addressed by BBMP to Deputy Superintendent of Police stating the names of encroacher of Sy.No.46. Ex.D.22 is Order dated 08.11.2019 passed by Regional Commissioner, Bangalore Division, Bangalore, wherein, it is ordered to make corrections in the khatha of the properties questioned, as per survey report.
26) From Exs.P.4, P.8 to P.23 and P.28 to P.34, it is clear that Plaintiff's vendor's name, Sri.S.Vijaya Kumar was entered in BBMP records relating to suit schedule property and he was paying tax to BBMP. From Exs.P.2 to P.4, P.6, P.7 and P.23 to P.27, it is clear that Plaintiff has purchased the suit schedule property from its erstwhile owners Sri.S.Vijaya Kumar and Sri.C.Puttaiah on 30.11.2013 vide OS.NO: 8987/2014 21 registered Sale Deed. After purchasing the suit schedule property, the name of Plaintiff has been entered in BBMP records relating to suit schedule property and she has been paying property tax to BBMP. Further, Exs.P.40 to P.48 makes it clear that Plaintiff is running Mythri School in suit schedule property.
27) Purchasing of suit schedule property by Plaintiff; entering her name in BBMP records relating to suit schedule property; payment of tax to BBMP by her and running of 'Mythri School' in suit schedule property by Plaintiff, are not in dispute. These facts are part of the pleadings of respective parties.
28) Further, above facts have also been admitted by DW.1 in his oral evidence. DW.1, in his cross- examination, deposes that Plaintiff is in possession of suit schedule property and the documents produced by Plaintiff at Exs.P.30 to 35 are issued by OS.NO: 8987/2014 22 Defendant No.1. It is deposed that Plaintiff is running the school viz., 'Mythri School'. It is further deposed that Defendant No.1 has given khatha in respect of suit schedule property and collected tax from Plaintiff every year. Relevant part of cross- examination of DW.1 is extracted as under :
"ನನನನ ಈ ಕಕಕಸನ ಬಗಕಗ ಸಸಪಪರರವನಗ ತಳದನಕಕಕಸಡಕ ಸನಕಕಯನನನ ನಕಡನತತದಕದಕನಕ. ದನವನ ಆಸತಯ ಸನಸಧಕನತಕಯಲಲ ವನದ ಇದನದರಕ. ದನವನ ಆಸತಯಲಲ ವನದಯ ಕಟಟಡ ಇದಕ. ವನದ ಸದರ ಕಟಟಡ ಕಟಟಲನ 1 ನಕಕ ಪಪತವನದಯಸದ ಪರವನನಗಕಯನನನ ಪಡಕದನಕಕಕಸಡನ ಮಸಜಕರನತ ನಕಕಕಯನನನ ಪಡಕದನಕಕಕಸಡರನವ ಬಗಕಗ ದನಖಲಕಯ ಪಪಕನರ ಕಸಡನ ಬರನತತದಕ. 1 ನಕಕ ಪಪತವನದ ದನವನ ಆಸತಗಕ ಖನತಕಯನನನ ನಕಡರನತನತರಕ. 1 ನಕಕ ಪಪತವನದ ವನದಯ ಕಡಕಯಸದ ಪಪತ ವರರ ದನವನ ಆಸತಗಕ ಸಸಬಸಧಸ ತಕರಗಕಯನನನ ಪಡಕದನಕಕಕಳನಳತತದನದರಕ. ಸದರ ವಕನಕಲಕ ಹಕಕಳದ ಖನತಕಯನನನ ನಕಡನವನಗ 1 ನಕಕ ಪಪತವನದ ಸದಳಕಕಕ ಬಸದನ ಪರಶಕಲನಕ ಮನಡ ಸಸಬಸಧಪಟಟ ವವಕತ ಆಸತಯ ಸನಸಧಕನತಕಯಲಲ ಇದದ ಬಗಕಗ ಹನಗಕ ಮನಲಕಕತಸದ ಬಗಕಗ ತಳದನಕಕಕಸಡನ ಖನತಕಯನನನ ನಕಡನತನತರಕ. ವನದ ದನವನ ಸಸತತನ ಸನಸಧಕನತಕಯಲಲರನವನಗ 1 ಮತನತ 2 ನಕಕ ಪಪತವನದಯರನ ದನನಸಕಕ 10-11-2014 ರಸದನ ದನವನ ಆಸತಯನನನ ಒಡಕದನ ಹನಕಲನ ಹಕಕಕಗದಕದಕವವ ಎಸದರಕ ಸರ."
"ನನನನ ಓಎಸಸ.ನಸ.8913/2014 ನಕಕದಪಲಲ ಸನಕಕ ನನಡದರನತಕತಕನಕ. ನ.ಪ.30 ರಸದ 35 ರವರಕಗನ ದನಖಲಕಗಳನನನ 1 ನಕಕ ಪಪತವನದಯರಕಕ ನಕಡರನತನತರಕ. ನನನನ ದನವನ ಸಸಳಕಕಕ ಭಕಕಟ ಕಕಕಟಟರನತಕತಕನಕ. ಈ ಕಕಕಸನ ವನದಯರನ ದನವನ ಸಸಳದಲಲ ಮಮತಪ ಹಕಸರನ ಶನಲಕಯನನನ ನಡಕಸನತತದನದರಕ. ........"
OS.NO: 8987/2014 23
29) Plaintiff, in Para-8 of the plaint has specifically pleaded that on 10.11.2014 Defendant No.2 and his officials made an attempt to demolish the building, contending that suit schedule property comes within Sy.No.46 of Malagala Village and same was resisted by Plaintiff. This fact has also not been disputed by Defendant No.1. DW.1 has emphatically admitted that on 10.11.2014 Defendants No.1 and 2 had gone to suit schedule property to demolish the building. However, Defendant No.1 is trying to justify his act, contending that suit schedule property comes within Sy.No.46 of Malagala Village, which is 'Balaiahana Kere' and the previous owners having no manner of right, title and interest over suit schedule property, executed Sale Deed in favour of Plaintiff by playing fraud upon Plaintiff. Sale Deed is not a lawful document and possession of Plaintiff is unlawful.
OS.NO: 8987/2014 24
30) 1st Defendant has placed reliance on Exs.D1 to D.22. It is to be noted that Exs.D.2 to D.21 are documentary evidence collected by Police during the course of investigation in BMTF Crime No. 28/2013 registered against 12 persons including Plaintiff for the offence punishable under Section 192(A) of the Karnataka Land Revenue Act, 1964. Plaintiff filed criminal petition before the Hon'ble High Court of Karnataka in Crl.Petition No.6579/2106 for quashing of the proceedings in C.C.No.12057/2015 arising out of Crime No.128/2013 and same was quashed by the Hon'ble High Court of Karnataka vide Order dated 29.05.2019. Be that as it may. RTC at Ex.D.8 makes it clear that Sy.No.46 of Malagala Village is Government Kere. Defendant No.1 mainly relies upon Exs.D.19 and D.21, which are Survey Sketch and Letter dated 28.11.2014 addressed by BBMP to Deputy Superintendent of Police. Survey Sketch at Ex.D.19 indicates 13 encroachment in Sy.No.46 of OS.NO: 8987/2014 25 Malagala Village. No where it is specifically mentioned in Ex.D.19 that Plaintiff has encroached Sy.No.46 of Malagala Village. Only Ex.D.21 mentions the name of Plaintiff as encroacher. There is no reason to rely upon Ex.D.21 by Defendant No.1 in absence of Plaintiff's name in Ex.D.19. Ex.D.22, Order passed by the Regional Commissioner to change the khata of the respective owners in pursuance of the survey report cannot be a supportive document to say that Plaintiff is not in possession of suit schedule property.
31) Further, DW.1, in his cross-examination, has specifically admitted that there is no mention in Ex.D.19 to say that Plaintiff has encroached Sy.No.46. Relevant part of cross-examination of DW.1 is extracted as under :
"ನ.ಡ.19 ಸವಕಕರ ದನಖಲಕಯನನನ ಯನರ ಕಕಕಕರಕಕ ಮಕರಕಗಕ ತಯನರಸದನದರಕ ಎಸದನ ನನಗಕ ಹಕಕಳಲನ ಬರನವವದಲಲ. ನ.ಡ.19 ದನಖಲಕಯನನನ ನಮಮ ಕಚಕಕರಯಸದ ಪಡಕದನಕಕಕಸಡನ ಈ ಕಕಕಸನಲಲ ಹನಜರನ ಪಡಸದಕದಕನಕ. ಸದರ ನ.ಡ.19 ದನಖಲಕ 1 ನಕಕ ಪಪತವನದ OS.NO: 8987/2014 26 ಸನಪದರಗಕ ಹಕಕಗಕ ಬಸತನ ಎಸದನ ನನಗಕ ಹಕಕಳಲನ ಬರನವವದಲಲ. ನ.ಡ.19 ರಲಲ ವನದಯರನ ಸವಕಕರ ನಸಬರಸ 46 ನನನ ಒತನತವರ ಮನಡದನದರಕ ಎಸದನ ನಮಕದನ ಇರನವವದಲಲ. ನ.ಡ.19 ರಲಲ ಒತನತವರ ಮನಡದನದರಕ ಎಸದನ ಹಕಕಳನವ ವವಕತಗಳ ವರನದದ ಯನವವದಕಕ ಕಪಮವನನನ ಕಕಮಗಕಕಸಡರನವವದಲಲ. ತನಲಕಲಕನ ಭಕಮನಪಕರನ ನ.ಡ.19 ದನಖಲಕಯನನನ ತಯನರಸದನದ ಅದರಲಲ ಅವರನ ಒತತವರದನರರನನನ ನಮಕದಸರನವವದಲಲ. ನ.ಡ.21 ರಲಲ ವನದಯ ಹಕಸರನನನ ಸದಳಕಯ ಕನರಕರರಕಕಟರಸ ರವರ ಚತನವಣಕ ಮಕರಕಗಕ ಸಕಕರಸದನದರಕ ಎಸದರಕ ಸರಯಲಲ. ...."
32) Also, DW.1 has emphatically admitted that no notice was given to alleged encroacher and adjacent land owners while conducting survey of Sy.No.46. Relevant portion of cross examination of DW.1 reads as under :
" .......ಸವಕಕರ ನಸಬರಸ 46 ರಲಲ ಸವಕಕರ ಮನಡನವ ಕನಲಕಕಕ ಒತನತವರ ಮನಡದನದರಕ ಎನನನವವರಗಕ ನನವವ ನಕಕಕಟಸಸ ನಕಡ ಸವಕಕರ ಮನಡರನವವದಲಲ. ಅದಕಕ ರಕತ ಸವಕಕರ ಮನಡನವ ಕನಲಕಕಕ ಅಕಕ ಪಕಕದ ಜಮಕನನ ಮನಲಕಕರಗಕ ನಕಕಕಟಸನನನ ನಕಡರನವವದಲಲ. .....
.......ದನವನ ಆಸತ ಸವಕಕರ ನಸಬರಸ 46 ರಲಲ ಬರನತತದಕಯನಕ ಅಥವನ ಸವಕಕರ ನಸಬರಸ 65/4 ಎ ನಲಲ ಬರನತತದಕಯನಕ ಎಸದನ ನನಗಕ ಗಕಕತತಲಲ ಎಸದನ ಮನಖವ ವಚನರಣಕಯಲಲ ಹಕಕಳದಕದಕನಕ ಎಸದರಕ ಸರ. .........."
33) Thus, it has been clear that Ex.D19 has been prepared without there being given any notice to Plaintiff as well as adjacent land owners. Plaintiff's OS.NO: 8987/2014 27 specific case is that suit schedule property is part and parcel of Sy.No.47 of Malagala Village. Ex.D.19 does not specify the encroachment made by Plaintiff in Sy.No.46 and moreover, Ex.D.19 has not been prepared in the presence of Plaintiff and alleged encroacher. No documents are available to show that there has been encroachment by Plaintiff in Sy.No.46 except Ex.D.21, in which Plaintiff's name is shown as encroacher. No explanation has been forthcoming from Defendant No.1 that on what basis Plaintiff's name has been mentioned in Ex.D.21. Had Defendant No.1 conducted the survey of Sy.No.46 of Malagala village in the presence of Plaintiff and adjacent land owners and had the alleged encroachment of Plaintiff been mentioned in the survey sketch, then, it would be proper to say that Plaintiff is the encroacher of Sy.No.46 of Malagala village and in that circumstance, Defendant No.1 would be entitled to take action by following due process of law. In Devi Singh case OS.NO: 8987/2014 28 (supra), it has been specifically held that "the Corporation or its officers were not entitled to either take possession of another person's property or retain its possession or dispossess a person who is already in possession without having recourse to the ordinary remedies under the law."
34) Defendant No.1 has placed reliance of the following judgments :
(a) K.V.Narayan vs. Sharana Gowdam [ILR 1986 KAR 1130], wherein it is held that "a trespasser in possession, is not entitled to a temporary injunction as against a true owner".
(b) Corporation of the City of Bangalore vs. M.Papaiah and another, [AIR 1989 SC 1809], wherein the Hon'ble Supreme Court was pleased to hold that "revenue records are not documents of title".
OS.NO: 8987/2014 29
35) In the instant case, it is proved that Plaintiff's right, title, interest and possession over suit schedule property is based on registered Sale Deed. Moreover, her title over suit schedule property is nevertheless based on revenue records. In that circumstance, the ratio laid down in the judgments (supra) is not availed of by Defendant No.1.
36) Further reliance is placed on Section 67 of the Karnataka Land Revenue Act, 1964 which states that public roads, etc., and all lands which are not the property of others belong to the Government. In the instant case, Defendant No.1 claims Plaintiff's property as portion of Sy.No.46 of Malagala Village without proving the same. In that view, on a fair reading of Section 67, Defendant No.1 has no right to claim others' property as Government land. Viewed from any angle, Defendant No.1 has failed in his attempt to prove his contention.
OS.NO: 8987/2014 30
37) Thus, from documentary evidence and oral admissions of DW.1, it has been established that Plaintiff has been in possession and enjoyment of the suit schedule property since the date of purchase and that on 10.11.2014 Defendants made an attempt to demolish the building constructed over suit schedule property. That being the case, it has be to said that Plaintiff is entitled to the relief as prayed for; accordingly, I answer the above Issues in the affirmative.
38) Issue No.6 : In view of foregoing discussion and findings on Issues No.1 to 5, I proceed to pass the following :
ORDER (1) Suit filed by Plaintiff is hereby decreed.
(2) Defendants are hereby restrained by way of permanent injunction from demolishing the building OS.NO: 8987/2014 31 constructed over suit schedule property and from interfering with Plaintiff's possession and enjoyment of suit schedule property.
(3) Draw Decree accordingly.
(4) Having regard to the peculiar facts and circumstance of the case, no order as to costs.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, on this the 5th day of February 2021) (RAMA NAIK) VI Addl.City Civil & Sessions Judge Bengaluru City OS.NO: 8987/2014 32 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Sri.S.Vinaykumar, dtd.24.08.2017
(b) Defendants side :
D.W.1 - Sri.D.Balaram, dtd.14.01.2020 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 General Power of Attorney dtd.19.08.2017 executed by Smt.S.R.Sumithra in favour of Sri.S.Vinay Kumar Ex.P.2 Certified copy of Sale Deed dtd.30.11.2013 Ex.P.3 Khatha Certificate dtd.07.09.2018 in the name of Plaintiff Ex.P.4 Khatha Certificate dtd.22.09.2018 in the name of Plaintiff Ex.P.5 Holder Khatha Certificate in the name of Holder (Vinaya Kumar.S) Ex.P.6 Khatha Extract dtd.22.09.2018 in the name of Plaintiff Ex.P.7 Khatha Extract dtd.07.09.2018 in the name of Plaintiff Ex.P.8 Holder Khatha Extract dd.14.08.2013 in the name of Holder (Vinaya Kumar.S) Ex.P.9 House Tax Assessment Register for the period from 01.04.1996 to 29.03.2001 Ex.P.10 House Tax Assessment Register extract for the period from 01.10.1995 to 27.03.2004 Ex.P.11 Property Tax Receipts in the name Holder To (S.Vinaya Kumar) - (12 Nos.) Ex.P.22 OS.NO: 8987/2014 33 Ex.P.23 Property Tax Receipts for the period from To 2014-2015 to 2017-2018 ( 5 Nos.) in the Ex.P.27 name of Plaintiff Ex.P.28 Property Tax Receipt for the year 2004- 2005 in the name of Holder (S.Vinaya Kumar) Ex.P.29 Khatha Certificates dtd.29.03.2001 and and 27.03.2004 in the name of Holder Ex.P.30 (S.Vinaya Kumar) - 2 Nos.
Ex.P.31 Notice dtd.22.03.2001 issued by BBMP regarding payment of Tax Ex.P.32 Show-cause Notice dtd.29.01.2002 and And 24.01.2004 issued by BBMP to Sri.S.Vinaya Ex.P.33 Kumar Ex.P.34 Letter dtd.11.04.2001issued by Asst.Revenue Officer, BBMP Ex.P.35 Certificate dtd.30.12.2013 issued by BBMP Ex.P.36 Encumbrance Certificate for the period from 01.04.2004 to 11.10.2018 reflecting the transaction of Plaintiff Ex.P.37 And Electricity Bill and Receipt Ex.P.38 Ex.P.39 CD Ex.P.40 Registration Certificate in respect of 'Mythri Institution' Ex.P.41 Certificate dtd.13.02.2018 issued by Dy.Director, Education Department to 'Mythri Institution' to run Kannada Medium School.
Ex.P.42 Notification dtd.20.01.2018 issued by BEO regarding renewal of licence to run school Ex.P.43 Registration Certificate dtd.20.01.2018 issued by BEO OS.NO: 8987/2014 34 Ex.P.44 List of Executive Committee Members of 'Maithri Samskruthika Vidya Samsthe' for the year 2003-04 Ex.P.45 Certificate regarding submission of accounts and List of Executive Committee Members of 'Maithri Samskruthika Vidya Samsthe' for the year 2003-04 Ex.P.46 To Photographs - 3 Nos.
Ex.P.48 Ex.P.49 CD Ex.P.50 Certified copy of Order dtd.29.05.2019 in Crl.Petition No.6579/2016 Ex.P.51 Certified copy of Order Sheet dtd.28.06.2017 of the Karnataka Land Grabbing Prohitibition Special Court, Bengaluru.
(b) Defendants side :
Ex.D.1 Certified copy of list of Documents in Crime
No.128/2013
Ex.D.2 Certified copy of Charge Sheet in Crime
No.128/2013
Ex.D.3 Certified copy of FIR in Crime No.128/2013
Ex.D.4 Certified copy of Spot Mahazar
dtd.24.11.2014
Ex.D.5 Certified copy of Police Notice
dtd.28.01.2014 U/S 160 of Cr.P.C Ex.D.6 Certified copy of Letter dtd.03.02.2014 Ex.D.7 Certified copy of Panchanama Ex.D.8 Certified copy of RTC in respect of Sy.No.46 of Malagala Village for the year 2013-2014 Ex.D.9 Certified copy of Sketch in respect of Sy.No.46 of Malagala Village OS.NO: 8987/2014 35 Ex.D.10 Certified copies of Survey Tippani in To respect of Sy.No.46 of Malagala Village - 7 Ex.D.16 Nos.
Ex.D.17 Certified copy of Reminder dtd.28.10.2014 issued by Dy.suprintendent of Police, BMTF, Bengaluru.
Ex.D.18 Certified copy of Letter dtd.31.10.2014 issued by Tahsildar, Bengaluru North Taluk, Bengaluru.
Ex.D.19 Certified copy of Sketch in respect of Sy.No.46 of Malagala Village Ex.D.20 Certified copy of Topograpical survey sketch of Sy.No.46 of Malagala Village Ex.D.21 Certified copy of Letter dtd.10/28.11.2014 issued by Asst.Revenue Officer, Govindarajanagar, BBMP., showing the names and addresses of encroachers in Sy.No.46.
Ex.D.22 Copy of Order dated 08.11.2019 in Case No.MUN.RP.42/2015-16.
VI Addl.City Civil & Sessions Judge, Bengaluru City