Karnataka High Court
The Commissioner vs Sri. Rajendren K.M on 1 August, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A.NO.1240 OF 2019 (DEC/INJ)
BETWEEN
THE COMMISSIONER
BRUHATH BANGALORE MAHANAGARA PALIKE
N.R. SQUARE
BENGALURU - 560 001
REP. BY HEAD OF LEGAL CELL
SRI.K.D. DESHPANDE
...APPELLANT
(BY SRI. PADMANABHA V. MAHALE, SR.ADVOCATE FOR
SRI. H. DEVENDRAPPA, ADVOCATE)
AND
SRI. RAJENDREN K.M.,
AGED ABOUT 57 YEARS,
S/O M. KRISHNAMURTHY
RESIDING AT NO.3, 1ST MAIN
C.K.C.GARDEN
BENGALURU - 560 027.
...RESPONDENT
(BY SRI.RAJADITHYA SADASIVAN, ADVOCATE))
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 01.07.2013 PASSED
IN O.S.NO.4759/2010 ON THE FILE OF THE XVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU, DECREEING THE SUIT
FOR DECLARATION AND MANDATORY INJUNCTION
THIS APPEAL IS BEING HEARD AND RESERVED ON
13.07.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal by the defendant / BBMP in O.S.No.4759/2010 is directed against the impugned judgment and decree dated 01.07.2013 passed by the XVI Addl. City Civil & Sessions Judge, Bengaluru City, whereby the said suit for declaration, mandatory injunction and other reliefs filed by the respondent / plaintiff against the appellant / defendant in respect of the suit schedule immovable properties was decreed by the trial Court in favour of the respondent / plaintiff against the appellant / defendant.
2. Heard Sri. Padmanabha V. Mahale, learned Senior Counsel for Sri. H. Devendrappa, learned counsel for the appellant and Sri. Rajadhithya Sadasivan, learned counsel for the respondent and perused the material on record.
3. The material on record indicates that the respondent / plaintiff instituted the aforesaid suit for declaration that he was the owner of the portion of the 3 schedule property upon which road is constructed, for mandatory injunction directing the appellant / defendant to remove the road laid upon the schedule property and restore the schedule property to its original condition and consequently, for possession of a portion of the schedule property upon which the said road is laid and for other reliefs. The suit schedule property comprised of three items of lands bearing Survey No.18/9 measuring 21 guntas, Survey No.18/10 measuring 1 acre 1 gunta and Survey No.19/6 measuring 24 guntas, all situated at Basavanapura Village, K.R.Puram Hobli, Bengaluru East Taluk.
4. It was specifically contended that the plaintiff purchased the schedule property vide registered Sale Deed dated 18.01.2005 pursuant to which the revenue records / khatha were mutated into his name and he has been in lawful and peaceful possession and enjoyment of the property since the date of purchase. It was contended that in March 2009, the defendant / BBMP illegally, highhandedly and unauthorisedly trespassed over all the three items of the 4 schedule property and laid a road 30 feet wide and 630 feet long which passes through all the three survey numbers. It was also contended that the defendant / BBMP did not acquire the schedule property and no layout was formed in the property and that the formation of the road by the BBMP is in contravention of Sections 280 and 281 of the Karnataka Municipal Corporations Act, 1976 and by the said formation of the road, the BBMP has encroached upon the schedule property and dispossessed the plaintiff from the portion of the same upon which the road was formed. It was further contended that the plaintiff got issued a legal notice dated 21.04.2010 under Section 482 of the KMC Act calling upon the defendant to restore the schedule property to its original condition and to deliver the said property to him and since the defendant did not comply with the demands of the plaintiff, he instituted the aforesaid suit before the trial Court.
5. The defendant filed its written statement interalia disputing and denying the plaint averments and sought for dismissal of the suit. It was contended that the suit has not 5 been properly valued and the Court fee paid was insufficient. The alleged title and possession of the plaintiff over the suit schedule property was denied and it was contended that the road as claimed by the plaintiff was formed 15 years back at the time when a private layout was formed in the suit property pursuant to which the road is being used by local residents. It was also contended that after inclusion of the said area within the jurisdiction of the BBMP, the residents / Welfare Association have made a representation to the defendant for improvement of the said road with better facilities, but the defendant has not taken up development work as the same was not handed over to it and funds were not allotted. The defendant also contended that the suit was not maintainable for non-compliance of Section 482 of the KMC Act and that the plaintiff had not approached the Court with clean hands and consequently, the suit was liable to be dismissed.
6. Based on the above pleadings, the trial Court framed the following issues:
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"1. Whether the plaintiff proves that the plaintiff is the owner of the portion of the schedule property, upon which road is formed?
2. Whether the suit is not properly valued and Court fee paid is insufficient?
3. Whether the defendant proves that very long back about 15 years ago the road was formed?
4. Whether the defendant proves that the suit is not maintainable for non-compliance of Sec.482 of KMC Act?
5. Whether the plaintiff is entitled for the relief of declaration, mandatory injunction and possession of the suit schedule property?
6. What order or decree?
Additional issues:
i) Whether the defendant proves that
the schedule properties are converted to
residential purpose?
ii) Whether the defendant proves that
layout has been formed in respect of the schedule properties?"
7. The plaintiff examined himself as PW.1 and documentary evidence at Ex.P1 to Ex.P20 were marked and 7 he was cross-examined by the defendant, who did not adduce any oral or documentary evidence. However, one document was confronted to PW.1 in the cross-examination and marked as Ex.D1.
8. After hearing the parties, the trial Court proceeded to answer all the issues in favour of the plaintiff and against the defendant and consequently, upheld the claim of the plaintiff and decreed the suit in his favour, aggrieved by which, the appellant / defendant is before this Court by way of the present appeal.
9. During the course of the appeal, the appellant has filed an application - I.A.2/2022 under Order 41 Rule 27 CPC for permission to produce two documents. The said application is opposed by the respondent.
10. The following points arise for consideration:
i) Whether the application - I.A.2/2022 filed by the appellant under Order 41 Rule 27 CPC for permission to produce additional evidence deserves to be allowed?8
ii) Whether the impugned judgment and decree passed by the trial Court warrants interference in the present appeal?
Reg: Point No.(i):
11. A perusal of the material on record including the impugned judgment and decree will indicate that the trial Court has considered and appreciated the material on record and has come to the conclusion that while the plaintiff had established his title and possession over the suit schedule property, the defendant had not substantiated its specific defence that a private layout was formed about 15 years ago, that the site owners and general public are using the subject road and that the same was not developed / improved by the BBMP despite representation by the Residents Welfare Association due to lack of funds. In this context, the trial Court noted that the defendant had not adduced any legal or acceptable evidence to prove its defence and contentions. A perusal of the documents sought to be produced along with I.A.2/2022 will indicate that the said documents are neither 9 relevant nor material for the purpose of disposal of the present appeal nor to enable the defendant to establish its defence. Further, neither valid nor sufficient grounds have been made out by the appellant to enable it to seek the indulgence of this Court and produce additional evidence particularly when nothing is placed on record as to why the said documents could not be produced despite exercise of due diligence by the appellant. It is also significant to note that the necessary ingredients / parameters contemplated under Order 41 Rule 27 CPC are conspicuously missing and absent in the application and affidavit and consequently, the contention of the appellant that the additional documents deserve to be received on record cannot be accepted.
11.1 Insofar as the contention urged by the learned Senior Counsel for the appellant that the said additional documents comprise of the plaints in O.S.No.3134/2018 and O.S.No.9087/2006 filed by the plaintiff wherein he has admitted existence of a layout and road in the suit schedule property from a long time is concerned, a perusal of the said 10 pleadings will indicate there is neither any such admission nor averment in the said pleadings of the plaintiff as contended by the appellant. In fact, the said pleadings of the plaintiff in the aforesaid suit will clearly indicate that the plaintiff has made specific and categoric allegations of fraudulent documents, fraudulent transactions, fraudulent records, etc., by third parties and has asserted that no layout has been formed in respect of the suit schedule property and that property had not been converted. Under these circumstances, the additional documents, even if received on record cannot be made the basis to come to the conclusion that they are relevant and material to enable the defendant to substantiate its defence and on this score also, I.A.2/2022 is liable to be rejected.
11.2 In view of the aforesaid facts and circumstances, I am of the considered opinion that neither valid nor sufficient ground has been made out by the appellant to enable it to seek the indulgence / permission of this Court to adduce additional evidence and consequently, there is no merit in the application and the same is liable to be rejected. Accordingly, 11 I answer point No.(i) against the appellant by holding that I.A.2/2022 is liable to be rejected and consequently, the same is hereby rejected.
Reg. Point No.(ii):
12. A perusal of the material on record will indicate that in order to establish his title and possession over the suit schedule property as well as the identity and location of the road formed in the property, the plaintiff has produced Ex.P1 - registered Sale Deed dated 18.01.2005, RTCs at Ex.P2 to Ex.P16 and the Sketch at Ex.P20, all of which have remained unimpeached, unchallenged and uncontroverted in the cross- examination. As against this, the defendant has not adduced any oral or documentary evidence to establish its defence, in this context, it is relevant to note that it is the specific defence of the appellant / defendant that a layout was formed on the suit schedule property 15 years back, that the subject road was formed at the time of formation of layout and is being used by local residents and that despite the Residents Welfare Association making representation to the defendant to 12 improve the subject road with better facilities, the BBMP could not do so due to lack of funds. It is needless to state that this defence is essentially a question of fact which would necessarily have to be established by the defendant by adducing legal and acceptable evidence; however, the material on record discloses that except giving suggestions to PW.1 in his cross-examination who has denied the same, absolutely no evidence has been adduced by the defendant in support of its specific defence referred to supra. Further, the contention that Ex.D1 (confronted and marked in the cross- examination of PW.1), i.e., Legal Notice dated 07.05.2010 issued on behalf of the plaintiff to the BBMP and its officials establishes that he has admitted formation of layout and road in the suit schedule property is misconceived and untenable inasmuch as a perusal of the said notice will clearly establish that there is no such admission anywhere by the plaintiff who has on the other hand made several other allegations against BBMP and private parties including alleging fraud, forgery, 13 etc., Under these circumstances, even this contention urged on behalf of the appellant cannot be accepted.
12.1. A perusal of the impugned judgment and decree will indicate that the trial Court has correctly and properly considered and appreciated the entire material on record and has upheld the claim of the plaintiff and rejected the defence of the defendant by holding as under:
"8. ISSUE NO.1:- The plaintiff claims the title over the schedule properties by virtue of registered Sale Deed dated 18.1.2005, upon which road has been formed by the defendant. PW.1's testimony goes to show that the plaintiff purchased the schedule properties under the registered Sale Deed and defendant formed the road without any semblance of right, title or acquisition. The learned counsel for the defendant cross-examined PW.1 in length, but unsucceeded to get elicit as the plaintiff has no title or ownership over the schedule properties.
The Ex.P-1 - Sale Deed evident that the plaintiff purchased the schedule properties for valuable consideration. The dimension and 14 boundaries mentioned in Ex.P-1 - plaint schedule item Nos.1 to 3 dimensions and boundaries are matching with each other. Further Exs.P-2 to 16 - copies of R.T.Cs produced reflect that the plaintiff is the owner of schedule properties. In the written statement the defendant indirectly contended that the road measuring 30 feet wide and 630 feet length formed very long back about 15 years ago when the private layout was formed and it was in existence and used by the public in general. In order to appraise this contention of the defendant, the defendant not entered into witness box to give evidence nor produced documents to show that the road was in existence about 15 years back and there was formed private layout and road was used by the general public. Thus, on the basis of this unproved written statement, one can presume that the defendant - statutory Body highhandedly by using its men, force formed the road. In the light of the above discussion, I am of the opinion that the plaintiff proved that he is owner of the portion of the schedule property, upon which road is formed.
Accordingly, I answer issue No.1 in the
Affirmative.
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9. ISSUE NO.2:- The defendant has
contended in the written statement that the suit properties are no more agricultural property. The suit is not properly valued and paid the insufficient Court fee. The properties are included within the limits of defendant - statutory Body. Thus, the plaintiff has to pay Court fee on market value. But no evidence produced nor produced the provision to accept this contention of the defendant. Unless and until proved the suit valuation and Court fee paid is improper, the Court shall presume and accept the Court fee paid is sufficient and valuation made is correct on the basis of suit valuation made by the plaintiff and Court fee paid by the plaintiff. Thus, I am of the opinion that the defendant has utterly failed to prove that the suit is not properly valued and Court fee paid is insufficient. Accordingly, I answer issue No.2 in the Negative.
10. ISSUE NO.3:- In view of the reasons discussed on issue No.1, I am of the opinion that the defendant failed to prove that very long back about 15 years ago the road was formed. Accordingly, I answer issue No.3 in the Negative.16
11. ISSUE NO.4:- The defendant has contended that the suit is not maintainable for not issuing of notice under Sec.482 of KMC Act. In view of this specific contention, I carefully gone through the plaint averments. In plaint para No.7 plaintiff asserted that he issued legal notice under Sec.482 of KMC Act on 21.4.2010 and it was served upon the defendant on 26.4.2010. Further after expiry of 60 days after service of legal notice instituted the suit. Actually the suit instituted on
13.7.2010. If we see the issuance of legal notice date 21.4.2010, served upon the defendant on 26.4.2010 and filing date, plaintiff filed suit after completing 60 days after service of notice. Further in strengthening the above strong specific averments, the plaintiff placed reliance on documents and on careful perusal of Ex.P-17 - copy of legal notice, it reflects that the plaintiff issued legal notice on 21.4.2010. On careful perusal of Ex.P-18 - postal receipt and Ex.P-19
- postal acknowledgment, it was served upon the defendant. Thus without hesitation in the matter, I am of the opinion that the plaintiff complied Sec.482 of KMC Act earlier to filing of the suit. Further the defendant has utterly failed 17 to prove that the suit is not maintainable for non- compliance of Sec.482 of KMC Act. Accordingly, I answer issue No.4 in the Negative.
12. ISSUE NO.5:- In view of the reasons discussed on issue Nos.1 and 4, plaintiff is entitled for the reliefs as sought for. Accordingly, I answer issue No.5 in the Affirmative."
12.2. Upon re-appreciation and re-evaluation of the entire material on record, I am of the considered opinion that the impugned judgment and decree passed by the trial Court does not suffer from any illegality or infirmity nor can the same be said to be perverse or capricious warranting interference by this Court in the present appeal.
12.3. Accordingly, point No.(ii) is also answered against the appellant.
13. In the result, I pass the following:
ORDER i. Appeal is hereby dismissed.18
ii. Impugned judgment and decree dated 01.07.2013 passed in O.S.No.4759/2010 by the XVI Addl. City Civil & Sessions Judge, Bengaluru City, is hereby confirmed.
iii. I.A.2/2022 filed by the appellant under Order 41 Rule 27 CPC is hereby dismissed.
Sd/-
JUDGE SV