Bangalore District Court
Smt.Lakshmidevamma vs The Commissioner on 25 September, 2019
IN THE COURT OF THE XLI ADDL.CITY CIVIL JUDGE
AT BANGALORE [CCH.No.42]
PRESENT:
SRI. KASANAPPA NAIK. M.A., LL.M.
XLI Addl. City Civil Judge
Dated this the 25th day of September 2019
O.S.No.4145/2002
PLAINTIFF : Smt.Lakshmidevamma
W/o Late G.Narayanappa
Aged about 70 years
Residing at No.38/1
Sarakki Village
Bangalore - 78
Dead represented by her LRs
Dr.Shashidharan Vishwanathan
S/o N.Vishwanath
Aged about 32 years
Residing at No.2/4, 303
Glasgow Harbour Teracles
Glasgow
United Kingdom
Represented by his General Power of
Attorney Holder:
N.Viswanath
S/o Late G.Narayanappa
R/at No.38/1
Cross, Sarakki Garden
J.P.Nagar Post
Bangalore.
(By Sri.M.P., Advocate)
2 OS No.4145/2002
V/s.
DEFENDANTS : 1. The Commissioner
Bengaluru Development Authority
Sankey Road
Bengaluru-560 020
2. Smt.Anusuyamma
W/o Krishnappa
Major
Residing at Sarakki Village
Bangalore-68.
3. Jayaram
S/o Pillappa @ Krishnappa
No.23, Panchayat Layout
Maruthi Road
I-G Circle
Shakambarinagar
J.P.Nagar
Bangalore-78.
(D1 By Sri.N.S.,
D2 By Sri.A.K.,
D3 By Sri.M.S.K.K., Advocates)
Date of Institution of the Suit: 26.06.2002
Nature of the suit
(Suit on Pronote, suit for Declaration & Permanent
declaration & possession, suit injunction
for injunction)
Date of commencement of 07.12.2006
recording of evidence:
Date on which the Judgment 25.09.2019
was pronounced:
3 OS No.4145/2002
Total Duration: Year/s Month/s Day/s
17 02 29
JUDGMENT
The Plaintiff has filed this suit against the defendants for the relief of declaration that B Schedule property is the easement of necessity for the plaintiff to reach the A Schedule property and A1 Schedule property, upon which she has right to make use; to declare that the defendant has no authority or jurisdiction to allot or reduce B Schedule property, which is a public road and the same shall be required to be continued as a public road as shown and regulated under the C.D.P. and zoning regulations. Further, to declare that the allotment bearing No.434 dated 17.1.2002 made by 1st defendant in favour of 2nd defendant in respect of portion of B Schedule property is without jurisdiction and void and in pursuance to that, the sale deed executed by the 2nd defendant in favour of 3rd defendant dated 5.11.2003 is null and void and 4 OS No.4145/2002 unenforceable; further to restrain the defendants or anybody on their behalf, claiming right to put up any construction or preventing the plaintiff in any manner in making use of the B schedule property as a Road and for making use and continuing to have civic amenities under the B Schedule property by granting perpetual injunction, to award costs and such other reliefs.
2. The facts of the case are as under:
The plaintiff claimed that she is the owner and in possession of 14 guntas of land in Sy.No.38/1 of Sarakki Village, Bangalore South Taluk and acquired title under sale deed dated 13.8.1976. The said property is A and A1 Schedule properties as mentioned in the plaint schedule. It is contended that A Schedule property is situated in the midst of developed and built up area in J.P.Nagar and consequently, no agricultural operations could be made profitably. The plaintiff has stopped agricultural operations 5 OS No.4145/2002 and she has been residing in Farm house built up in the A Schedule property. The said area comes within the City Municipal Council, Bommanahally.
It is further contended that after the death of original plaintiff Lakshmidevamma, her grand son Dr.Shashidharan Vishwanathan came on record and he is being represented by his father Mr.N.Vishwanath, who is the son of Lakshmidevamma. It is contended that during her life time original plaintiff was hale and healthy and capable of understanding her acts and deeds and she bequeathed northern portion of A Schedule property to an extent of east-west: 188.844 + 179.0/2 feet, north-south: 27.916 + 32.35/2 feet together with existing construction thereon in favour of her grand son under registered Will dated 25.11.2010 and the land bequeathed is shown in the Will.
The said Will is her last Will and thereby the right, title and interest has been conferred upon the LR of the plaintiff. The land bequeathed under the Will has been described as 6 OS No.4145/2002 A1 schedule in the plaint. The other legatees under the Will since not having interest in the present suit, they have not come on record and the legatee Shashidharan Vishwanathan is alone interested in the suit, who has stepped in the shoes of his grand mother Lakshmidevamma.
It is further contended that just in front of A Schedule property, on its northern side, BDA layout has been formed by 1st defendant and it is called as J.P.Nagar VI Phase Layout. There is a C.D.P. approved by the appropriate authority and in which, 40 feet road has been formed, which abuts suit A Schedule property and that is only road for ingress and egress of the A Schedule property. It is further contended that through the said Road abutting Site No.434 of the layout plan, the 1st defendant has laid cable line, pipeline, sewerage line, which passes to the A Schedule property. The said lines are already in existence and making use of the same.
7 OS No.4145/2002
It is further contended that defendant No.2 claims to be allottee of Site No.434, which is abutting 40 feet road on the northern side of the A Schedule property. It is alleged that the 2nd defendant colluding with the officials of 1st defendant, is making efforts to encroach upon 40 feet road, which occupied by the Sewerage Line, water line and electrical cables passing under ground in the 40 feet road to the A Schedule property. The said 40 feet road is B Schedule property as mentioned in plaint schedule. It is alleged that the defendants have no right to transgress the C.D.P., which shows the existence of the road. It is further contended that the road existing on the B Schedule property is not only available for BDA layout residents, but that is equally available to the plaintiff and for other general public to reach the area behind the BDA layout, on its southern side, as a way of necessity and said use of the road is inevitable as there is no other ingress or egress for the plaintiff in particular. Thus, it has become the 8 OS No.4145/2002 easement of necessity. The plaintiff claimed to be using the said road involved in the B Schedule property for the past several decades and thereby, he has acquired the right of prescription, recognized under the law.
It is further contended that the corporation officials colluding with the persons interested in that area, attempted to block the road and also made attempt to prevent the plaintiff from making use of the electric cables, drainage, water supply in the A Schedule property from B Schedule property. The plaintiff filed OS.7927/1995 against the BBMP on the file of this court and this court granted temporary injunction, which is still in force. It is alleged that on 22.6.2002 the officials of 1st defendant made attempts to put up a compound wall enclosing the road and Site No.434. However, the plaintiff has averted the same. It is further contended that the plaintiff came to know that the 1st defendant illegally alleged to have allotted a portion of the land in road portion of B Schedule property 9 OS No.4145/2002 in favour of 2nd defendant. Further, the 2nd defendant taking undue advantage of illegal allotment, has created third party rights in respect of the same in favour of 3rd defendant. Thus, the cause of action arose and suit is filed for the relief mentioned in detail above.
3. The defendants No.1 to 3 have appeared through their respective counsels and filed their separate written statements.
4. The defendant No.1 in its written statement has denied averments of plaint, but the claim of the plaintiff that she is owner of A Schedule property has not been denied specifically. The defendant No.1 admitted to have formed a layout called J.P.Nagar 6th Phase, but denied that under C.D.P., 40 feet road abuts the A Schedule property. The 1st defendant contended that there is no road as stated by the plaintiff abutting A Schedule property on the 10 OS No.4145/2002 northern side, but to the northern side of A Schedule property, there is BDA sites including that of 1st defendant. It is admitted that the 2nd defendant is allottee of Site No.434. The 1st defendant has denied specifically about existence of said road. It is contended that the land bearing Sy.No.38/1 belonging to plaintiff, was notified by the 1st defendant for the formation of J.P.Nagar 7th Phase layout vide preliminary and final notification dated 25.11.1995, but the award could not be drawn since the said survey number among other properties were built up and hence the authority, by its decision dated 23.3.2001, decided to drop the said scheme and forwarded the decision to the government for approval and same was dropped in the year 2004. It is further contended that after Site No.434, there is BDA property, which is vacant. It is stated that the said property is not shown as road either in C.D.P. or under any plan. As per the 1st defendant, the said property is vacant and not measuring 40 feet as claimed. It is further 11 OS No.4145/2002 contended that the pipelines are running in the first part of plaintiff's A Schedule property and in a portion of BDA authorities land, on the northern side of A Schedule property. They have denied the alleged encroachment of road. On the other hand, it is alleged that the plaintiff is attempting to encroach the BDA land situated in the east of Site No.434 by making it to appear as a road. The defendant No.1 has provided boundaries to layout plan of J.P.Nagar 6th Phase, wherein to the east: there exists Ganesha temple, West: Site No.434 allotted to Anusuyamma/defendant No.2 by BDA, to the north:
existing 40 feet road (35th cross) and south: private property. The 1st defendant in the additional written statement dated 28.3.2009 has stated that the BDA has already formed the layout and the road as shown in the layout plan and the CDP is nothing to do at this stage. It is stated that property in question is a sital area and not a road area. The plaintiff has access to her property and she 12 OS No.4145/2002 has no right over the site No.434 nor she can come to BDA layout. It is alleged that the plaintiff has a plan to knock off the property by claiming right of easement. The 1st defendant has got every right to allot site to general public and plaintiff has no right over the BDA property and she cannot make use of BDA property and cannot claim the property for her own use or to make a road in the site belongs to BDA and thus the plaintiff has no right to question about the said site nor the allotment. Thus, it is contended that the disputed site is absolutely BDA property as shown in the approved plan.
5. The defendant No.2 has filed her written statement, wherein also plaint claim and allegations have been denied. As per her, there is no cause of action to the suit. It is contended that suit is bad for mis-joinder of un- necessary parties and non-joinder of proper parties. The ownership of the plaintiff on the 14 guntas of land in 13 OS No.4145/2002 Sy.No.38/1 of Sarakki Village has been denied. The existence of alleged right of easement of plaintiff on the B Schedule property has been denied. The defendant No.2 has set up her defence that the BDA has allotted Site No.434 in her favour as per the boundaries, to the East:
BDA layout, West: Site No.435, North by road and South by private property. The 1st defendant claimed to have executed sale deed in favour of 2nd defendant with respect to Site No.434 under sale deed dated 20.3.2002 and issued possession certificate. The khatha of the said property is transferred in her name and she paid tax till 2003. It is further contended that she being absolute owner has sold the said property in favour of defendant No.3 under sale deed dated 5.11.2003 and thereafter, the defendant No.3 is the owner and in lawful possession of said property. It is further contended that the plaintiff is not in possession of schedule property and that B Schedule property is not in existence.14 OS No.4145/2002
6. The defendant No.3 has filed his written statement, wherein also, the claim of the plaintiff has been denied. Even the defendant No.3 has denied the ownership and possession of the plaintiff in A Schedule property. Further, he has denied that on the northern side of A Schedule property, there is road measuring 40 feet and same is only road for ingress and egress to the plaintiff. Even the 3rd defendant has taken up a defence that he claimed to have purchased Site No.434 from 2nd defendant under sale deed dated 5.11.2003 and khatha changed in his name. The defendant No.3 has claimed to be bonafide purchaser of above said site. As per him, suit B Schedule property is not in existence at all. Thus, defendants No.1 to 3 have prayed to dismiss the suit with costs.
7. On amendment to the plaint, the defendant No.3 has filed additional written statement, wherein also 15 OS No.4145/2002 additional plea as taken up by the plaintiff has been denied. As per him, there is Rajakaluve towards north of A Schedule property, which is meant for free flow of rain water and same belongs to 1st defendant. The boundaries mentioned in the A Schedule property has been denied. It is stated that the plea taken through amendment is barred by law of limitation and want of notice under Section 64 of BDA Act.
8. The defendant No.3 has filed one more additional written statement on further amending the plaint. It is stated that the plaintiff has went upon to reduce the dimensions of B Schedule property with ulterior motive to illegal encroach upon the remaining extent by including the said area into A Schedule property and therefore substituting boundaries of A Schedule property has been denied. It is stated that towards eastern side of entire A Schedule property, there is a public road known as 16 OS No.4145/2002 35th Main Road leading to 17th Cross road towards its northern side and standing through out towards its northern side and that the plaintiff is making use of 17th Cross Road to reach 35th Main Road and for ingress and egress to the schedule property from said 35th Main road, which is very much clear from the report and sketch produced by Commissioner, against which the plaintiff has not filed objections. It is further contended that the amendment introduced is hit by res-judicata. It is contended that the details of the Will alleged to have been executed by Lakshmidevamma in favour of the LR of the plaintiff has not been furnished and no further amendment is sought in plaint to establish the right said to have been acquired by him under the alleged Will. For want of pleadings and evidence in that regard the suit has continued representing the deceased plaintiff by her alleged LR is liable to be dismissed. It is stated that the plaintiff cannot bequeath or transfer the litigation in favour of her 17 OS No.4145/2002 so called LR and if such bequeath is there, the same is illegal and has no probative value. It is further contended that the suit property is not in consolence with the documents produced by the plaintiff. It is further stated in the additional written statement dated 21.1.2019 that on the eastern side of Schedule A property there is a public road known as 35th Main Road leading to 17th Cross Road towards its northern side and extending throughout towards its southern side and the plaintiff is making use of 17th Cross Road to reach 35th Main Road and to have ingress and egress to the suit property from said 35th Main road, which is clear from the report and sketch produced by the Commissioner. The plaintiff has not filed objections against Commissioner Report, which amounts its acceptance. Thus, all the defendants prayed to dismiss the suit.
18 OS No.4145/2002
9. On the basis of the above pleadings, the following issues and additional issues have been framed:
1) Whether the plaintiff proves the existence of road as described in plaint B Schedule?
2) Whether the plaintiff proves that she has no other access to A Schedule property except through B Schedule road?
3) Whether the plaintiff has acquired easementary right by prescription over B Schedule property?
4) Whether the plaintiff proves that an attempt was made to construct compound by enclosing B Schedule road?
5) What decree or order?
ADDL. ISSUE FRAMED ON 4.12.2010
1) Whether the plaintiff proves that allotment of B Schedule property by 1st defendant in favor of 2nd defendant is void? Consequently, the sale deed executed by the 2nd defendant in favour of 3rd 19 OS No.4145/2002 defendant is void and plaintiff is entitled for declaration to that effect?
ADDL. ISSUE FRAMED ON 17.8.2016
2) Whether the present plaintiff proves that the original plaintiff bequeathed the suit A Schedule property in favour of him as per the Will dated 25.11.2010?
RECASTED ISSUE NO.2 Whether the present plaintiff proves that he has no other access to suit 'A1' Schedule property except through the 'B' Schedule road?
RECASTED ADDL. ISSUE NO.2 Whether the present plaintiff proves that the original plaintiff bequeathed the suit 'A1' Schedule property in favour of him as per the Will dated 25.11.2010?
20 OS No.4145/2002
10. In support of her case, the General Power of Attorney holder of LR of the plaintiff examined himself as PW1 and produced documents as per Ex.P.1 to P.74 in evidence. The plaintiff also examined one witness as PW2. On the other hand, the defendant No.3 examined himself as DW1 and produced documents as per Ex.D.1 to D.12 in evidence. One Mr.C.N.Ashok S/o Late C.R.Nagaraju, Assistant Engineer of 1st defendant authority examined himself as DW2, but produced no documents in evidence. The Court Commissioner is examined as CW1 and produced 5 documents at Ex.C.1 to C.5.
11. I have heard the learned counsel for the parties and perused the materials on record including written arguments filed by both the parties.
12. My findings to the above issues are as under: 21 OS No.4145/2002
Issue Nos.1, 3 & 4 :
Addl. Issue No.1 In the negative
& Recasted Issue
No.2
Recasted Addl. : In the affirmative
Issue No.2
Issue No.5 : As per the final order,
for the following
REASONS
13. ISSUE NOs.1, 3 & 4, ADDL. ISSUE NO.1, RECASTED ISSUE NO.2 AND RECASTED ADDL. ISSUE NO.2:- Since these issues are interconnected with each other and hence they are taken together for common discussion in order to avoid repetition of facts and evidence.
14. The learned counsel for the plaintiff argued that the road towards north of the suit schedule property is in existence and the plaintiff established the same with the help of oral and documentary evidence particularly CDP and the plaintiff also established that except road in B 22 OS No.4145/2002 Schedule property, there is no other access to the A Schedule property of the plaintiff. It is further argued that the plaintiff established her easement right on the B Schedule property. The evidence of Court Commissioner appointed clearly support the claim of the plaintiff. It is further argued that the plaintiff even established the Will executed by original plaintiff in his favour and thus even the plaintiff established his ownership over A Schedule property and thus prayed to decree the suit.
15. In support of the arguments, the learned counsel for the plaintiff relied upon decisions reported in 2009(5) KLJ 266 (Sudha S Patil v. State of Karnataka and another) and 1981(1) KLJ 250 (O.S.Anchan v. Grace W.Enthat and others).
16. The learned counsel for the defendant No.3, based on his written arguments, has contended that the 23 OS No.4145/2002 plaintiff himself in his cross-examination clearly admitted about the existence of the road towards East and South of the A Schedule property and such being the case, when once the defendant established an alternative way, the question of easement does not arise. It is further argued that the plaintiff has not come to court with clean hands and set up a false claim over the suit property. It is further argued that the Court Commissioner in his report has clearly stated about the existence of road on the east and south of A Schedule property. The eastern road joins the main road beyond property of defendant No.3 and though this being the facts, the plaintiff has claiming right to easement on B Schedule property only with an intention to harass the defendant No.3, who is bonafide purchaser of suit B Schedule property from his vendor defendant No.2.
It is stated that the 1st defendant/BDA has allotted the property in the name of defendant No.2 and defendant No.2 having valid title, has sold the property in favour of 24 OS No.4145/2002 defendant No.3. Such being the case, the suit is not maintainable and thus prayed to dismiss the suit with cost.
17. In support of his arguments, the learned counsel for the defendant No.3 has relied upon the decisions reported in ILR 2005 KAR 1188 (R.Paramasivan and another v. Smt.T.Anasuya), AIR 2013 Madhya Pradesh 187 (Thomas Ambrose through LRs. v. Ramdas Balmik), (2005)1 SCC 471 (Justiniano Antao and others v. Bernadette.B Pereira(SMT) and (2013) 3 SCC 66 (Commissioner, Bangalore Development Authority and another v. Brijesh Reddy and another).
18. Based on the arguments of both the learned counsels, I have carefully perused the oral and documentary evidence available on the record. In this case, as I already narrated, the plaintiff has set up a right to easement on B Schedule property as easement of necessity 25 OS No.4145/2002 to reach A Schedule property. Further, the plaintiff claimed to declare that the defendant No.1 has no authority or jurisdiction to allot or reduce B Schedule property, which is pubic road as shown in CDP. The plaintiff also claimed declaration that the allotment of site bearing No.434 in favour of defendant No.2 on 17.1.2002 with respect to B Schedule property is without jurisdiction. In this regard, the General Power of Attorney holder of LR of original plaintiff, has filed his evidence affidavit as PW1 narrating all the material facts of the plaint. It is seen that PW1 - Vishwanath has given evidence holding General Power of Attorney of the principal - Dr.Vishwanathan. The plaintiff has produced as many as 74 documents in evidence. In this case, there is no dispute about grant of suit B Schedule property in favour of defendant No.2 and further the defendant No.2 has sold suit B Schedule property in favour of defendant No.3. However, the plaintiff has set up right to easement of necessity as well as prescription on B 26 OS No.4145/2002 Schedule property in order to reach A Schedule property. However, it is contention of the 1st defendant that B Schedule property has never earmarked as site. It is seen that in order to establish right of easement of necessity, the plaintiff has to establish that except B Schedule property, there is no other access to A Schedule property. In this regard, it is seen that the learned counsel for defendant No.3 has subjected the PW1 to cross-examination, wherein PW1 admitted that A Schedule property has not been converted for non-agricultural purpose. It is revealed that A Schedule property is assigned with No.395 by Sarakki Grama Panchayat, but he deposed that there is farm house in A Schedule property. He also admits that there are three residential houses and six shopping premises in A Schedule property, in addition to one farm house. As per him, the shopping premises were constructed in the year 1997 and earlier to that, residential houses were constructed. He also admits that to put up these 27 OS No.4145/2002 constructions, no license or plan obtained either from Panchayat office or anybody. He admits that towards northern side of A Schedule property, a road formed by BDA is situated along the defendant's property and thereafter, 17th Cross formed by BDA is situated. He clearly admits that to the east of this shopping premises belong to him, there is a road measuring 15 feet in width. He has denied that said road measures 22 feet in width. He has admitted that the said road runs from north to south and runs beyond his property. He has denied that there is a road towards south of A Schedule property, but he admitted that immediately to the south of A Schedule property, there is a private property, in which a road is situated. He admits that towards the other end of road, there are so many houses in existence. This clearly indicate that there is a road in existence towards east of the suit property and so also towards south of A Schedule property, but he deposed that since he never used the road 28 OS No.4145/2002 situated towards southern side of A Schedule property, there is no question of obstruction by anybody. He deposed that road situated towards eastern side of A Schedule property is meant only for the property holders of A Schedule property. But, he clearly admitted that they have no documents to show that they have formed road towards eastern side of A Schedule property. There is clear admission that said eastern road joins 17th Cross Road formed by BDA. He admits that they have not put any barricade across road to prevent intruders to the road. He admits that public are making use of the road situated on the eastern side of A Schedule property. He admits that these shop premises belong to him are facing the very same road and he has leased out the shop premises to tenant. He has also leased out two houses to tenants. He deposed that when the suit was filed, eastern side road towards A Schedule property was in existence, but he deposed that southern side road was not in existence and he does not 29 OS No.4145/2002 know when southern side road was formed. The above pointed out material evidence clearly indicate that there is road towards east of the suit property and so also to the south of the suit Schedule A property and the plaintiff has suppressed the said fact in the plaint. Thus, I find sufficient force in the arguments of the learned counsel for the defendant No.3 that plaintiff has suppressed material facts and not approached the court with clean hands.
19. PW1 further deposed that original title deeds of A Schedule property dated 28.11.1940 is with him and though he stated that he can produce said document in suit, but not produced the said document. If at all, the property towards north of A Schedule property is mentioned as road in the said document, the same would have been a valuable piece of evidence to prove the existence of road towards north of suit property. He deposed that in Ex.P.1 northern boundary is shown as 30 OS No.4145/2002 footpath Oni. But, he deposed that same was meant for allowing water to flow. He clearly admitted that the private property situated towards northern side of A Schedule property has been acquired by the then CITB in 1967-68. He clearly admitted that in the acquired land on the northern side of A Schedule property, BDA has formed layout. He has denied that after acquisition of land, they have falsely created a footpath and oni towards northern side of A Schedule property. He does not know that in the original sale deed dated 28.11.1940, northern boundary is shown as oni and footpath. But, he has denied that no road is in existence as claimed by him towards northern side of A Schedule property. He deposed that in Ex.P.11, eastern road is not shown. He also admitted that even southern road is also not shown in Ex.P.11. This evidence clearly indicate that Ex.P.11 is not reliable document as the plaintiff himself admitted that there is road towards north 31 OS No.4145/2002 and south of A Schedule property. When such being the case, Ex.P.11 - sketch cannot be accepted.
20. PW1 has clearly admitted that towards north of A Schedule property, property belonged to BDA is situated. He has clearly admitted in the cross-examination dated 4.10.2017, at para No.16 that there is road in the south of A Schedule property. This admission clearly revealed that there is road towards east and south of A Schedule property.
21. Further, PW1 in his cross-examination dated 7.2.2011 admitted that there is no special mark made that B schedule property is road and it is not mentioned in writing that it is road. He admitted that a public mini water tank is constructed in B Schedule property and that he never raised objections while constructing said tank. He deposed that he has not produced documents to show that 32 OS No.4145/2002 water pipes and electric wires are laid in B Schedule property. He also admitted that he has taken electric connection to his shop premises from northern side of building from BDA road. He admits that the road towards east of his building is 17 feet in width. He is unable to say as to after how much distance, the said road is situated. This evidence indicates that he is suppressing the material facts. He admitted that there are number of houses towards east and west of said road to the north of his house and even admitted that it is tar road and inhabitants of said houses using said road. He has denied that there is 15 feet road to the south of his house. But, as I already indicated, in the cross-examination dated 4.10.2007, he admitted that there is road to the south of A Schedule property towards east and south of suit A Schedule property. When such being the case, the plaintiff cannot claim B schedule property as right to easement. He deposed that in Ex.P.1 - release deed, there is mention 33 OS No.4145/2002 about Rajakaluve towards east of the suit schedule property. But, he stated that there is no any such Rajakaluve on the spot. He denied that he constructed shopping complex on Rajakaluve. This evidence discloses that the plaintiff herself is encroacher of property. His admission that he has not shown road to the east of A Schedule property indicate that he has suppressing real facts and projected false facts.
22. It is seen that the defendants No.1 and 2 have adopted the cross-examination of the learned counsel for defendant No.3. In the cross-examination dated 27.6.2011 at para No.3, he admitted that the road situated towards eastern side of his shops join at 25 feet BDA road towards north.
23. The plaintiff produced Ex.P.72 - Will dated 25.11.2010 in evidence dated 23.9.2016 and in the cross- 34 OS No.4145/2002 examination by the learned counsel for the defendant No.3, he has denied that Ex.P.72 is bogus Will and it is created for the purpose of this suit. He has deposed in his cross- examination dated 3.4.2017 that 14 guntas of land is not converted. This goes to show that the building of the plaintiff is not legal. In cross-examination dated 21.3.2018 he deposed that in Ex.P.1 towards eastern side of Schedule A property, Rajakaluve is wrongly shown, but he clearly admitted that he has not made any efforts to get corrected the eastern boundary of Schedule A property in Ex.P.1. He has denied that they have constructed 6 shops on Rajakaluve. This evidence discloses that the plaintiff has encroached said Rajakaluve. He clearly admitted that he has not filed objections to the Commissioner Report. He clearly admitted that towards northern side of A Schedule property, BDA layout is situated. He has denied that his mother has not executed any Will bequeathing any portion of A Schedule property in favour of his son Shashidharan. 35 OS No.4145/2002 He deposed in the cross-examination dated 2.7.2019 that he does not know what happened to OS.7927/1995. He does not even know that said suit was dismissed on 12.7.2012. He has further denied that sons of his brothers are necessary parties in the suit. He has denied that since there is no necessary of way for the sons of his brothers, they have not come and contest the suit.
24. The plaintiff examined one witness S.P.Jayaram S/o Papaiah as PW2 to prove the Will - Ex.P.72, but his evidence has been denied in the cross-examination.
25. The plaintiff produced number of documents to support her case. Ex.P.1 is release deed dated 12.8.1976 executed by the brother of original plaintiff namely S.Lakshminarayana in her favour by releasing the land bearing Sy.No.38/1 of Sarakki Village measuring 14 guntas. Ex.P.2 is mutation register extract standing in the 36 OS No.4145/2002 name of Lakshmidevamma in pursuance to Ex.P.1. Ex.P.3 is RTC Extract of Sy.No.38/1. Ex.P.4 is electricity bill, Ex.P.5 is electricity bill paid receipt, Ex.P.6 is water bill, Ex.P.7 is water bill paid receipt, Ex.P.8 is Challan for having remitted the amount to CMC, Bommanahalli, Ex.P.9 is village map pertaining to Sarakki Village, Ex.P.10 is General Power of Attorney dated 30.11.2006 executed by Smt.Lakshmidevamma in favour of her son Vishwanathan.N with respect to this suit. Ex.P.11 is rough sketch, Ex.P.12 is blue print of CDP Plan, Ex.P.13 is hissa Tippani, Ex.P.14 is akarband, Ex.P.15 is copy of application given by son plaintiff to BDA, Ex.P.16 is corresponding acknowledgment issued by BDA, Ex.P.17 is receipt for having paid money to obtain the copy of layout plan, Ex.P.18 is receipt for having paid money to obtain the copy of layout plan, Ex.P.19 is layout plan issued by BDA, Ex.P.20 is tax paid receipt issued by Grama Panchayath in respect of residential house, Ex.P.21 is electricity bill, 37 OS No.4145/2002 Ex.P.22 & 23 are corresponding receipts for having paid the bill, Ex.P.24 is one more KEB Bill, Ex.P.25 is receipt for having paid the electricity bill, Ex.P.26 is receipt issued by BDA to provide a case file for the purpose of its study, Ex.P.27 is endorsement issued by BDA permitting PW1 to look into file, Ex.P.28 is receipt for having submitted application to obtain certain documents, Ex.P.29 is Notice issued by BDA calling upon PW1 to obtain documents under Right to Information Act, 2005, Ex.P.30 is Bank receipt for having deposited amount, Ex.P.31 is file provided to him, by the BDA consists of 53 sheets, Ex.P.32 to 35 are photographs of suit schedule property, Ex.P.32(a) to 35(a) are corresponding negatives pertaining to suit schedule property, Ex.P.36 is receipt issued by photographer for having clicked the Ex.P.32 to 35, Ex.P.37 is Certificate issued by Grama Panchayat Chairman, Sarakki dated 30.6.1982 endorsing no objections in favour of plaintiff Lakshmidevamma to provide electricity 38 OS No.4145/2002 connection. Even in this document, eastern boundary is shown as Rajakaluve. Ex.P.38 is RTC in respect of Sy.No.38/1 measuring 14 guntas for the year 2000-01 standing in the name of plaintiff - Lakshmidevamma. Ex.P.39 is MR Extract for having mutated the name of the plaintiff - Lakshmidevamma in pursuance to release deed - Ex.P.1, Ex.P.40 is tax paid receipt, Ex.P.41 is application submitted by plaintiff Lakshmidevamma to BBMP dated 8.5.2002 requesting the BBMP not to carry out any work on B Schedule property informing that the suit filed by her (this suit) is pending, Ex.P.42 is acknowledgment issued by BBMP for having submitted application, Ex.P.43 & 44 are complaints submitted to police regarding encroachment of road, Ex.P.45 is Acknowledgment issued by BDA, Ex.P.46 is Certified copy of proceedings obtained from BDA under RTI Act regarding proceedings, Ex.P.47 is letter of submission of Caste and Income Certificate before the BDA by defendant No.2, Ex.P.48 is the affidavit filed by 39 OS No.4145/2002 defendant No.2 before BDA declaring that she belong to Bhovi Community of SC. Ex.P.49 is Allotment letter issued in favour of 2nd defendant with respect to site No.1239 in BTM II Stage, I Phase formed in Sy.No.77/2 of Madivala measuring 20 X 30 feet site, Ex.P.50 is one more such allotment letter with respect to Site No.1239, Ex.P.51 is certified copy of plaint in OS.6748/2004 filed by defendant No.3 against the plaintiff and defendant No.1 for the relief of permanent injunction with respect to Site bearing No.434, Ex.P.52 is Possession certificate issued by BDA in favour of 2nd defendant with respect to Site No.434, Ex.P.53 is Endorsement issued by BDA in favour of 2nd defendant regarding registration of sale deed in favour of defendant No.2, Ex.P.54 is certified copy of sale deed executed by BDA in favour of 2nd defendant with respect to Site No.434, Ex.P.55 is Allotment letter issued by BDA in favour of 2nd defendant with respect to Site No.1239 at BTM Layout with a endorsement 'cancelled'. Ex.P.56 is Schedule 40 OS No.4145/2002 confirmation letter issued by BDA in favour of 2nd defendant, Ex.P.57 is application submitted by 2nd defendant to BDA for allotment of alternative site instead of Site No.1239, Ex.P.58 is Possession certificate issued by BDA in favour of 2nd defendant in respect of Site No.1239 at BTM Layout, Ex.P.59 is the informal memo issued by Commissioner, BDA to Law Officer, BDA requiring them to take steps for early disposal of OS.7502/1996, Ex.P.60 is another letter like Ex.P.59, Ex.P.61 is application submitted by 2nd defendant to BDA requesting to allot Site No.434 or No.7766 instead of Site No.1239, Ex.P.62 is Encumbrance certificate in respect of Site No.1239, Ex.P.63 is Caste certificate issued by Tahsildar in favour of 2nd defendant, Ex.P.64 is Copy of complaint filed by plaintiff before Hon'ble Chief Minister regarding encroachment of her property bearing No.38/1 by three persons dated 10.9.2014 , Ex.P.65 is RTI application dated 25.10.2014, Ex.P.66 is receipt issued by BDA, Ex.P.67 is Endorsement 41 OS No.4145/2002 issued by BDA dated 7.11.2014 regarding submission of information under RTI Act, Ex.P.68 is application filed by plaintiff before BMTF dated 6.11.2014 requesting to remove the petty shop illegally kept on 35th Main Road for commercial purpose, Ex.P.69 is Copy of letter from the Director BMTF dated 11.11.2014 directing the concerned to take action as per complaint filed under Ex.P.68. Ex.P.70 is Copy of letter from Joint Director, BMTF dated 4.12.2014 informing the A.E.E., BBMP to provide sketch with regard to spot, where the petty shop is kept as complained in Ex.P.68. Ex.P.71 is Copy of letter issued by BMTF dated 12.12.2014 addressed to A.E.E., BBMP. Ex.P.72 is registered Will dated 25.11.2010 executed by Lakshmidevamma in favour of son of General Power of Attorney holder of plaintiff namely Mr.Shashidharan and children of her 2nd son Venkatesh bequeathing land bearing Sy.No.38/1 making in four portions, wherein A Schedule property measuring 18.0 X 76.05 in favour of 42 OS No.4145/2002 Shashidharan, the boundaries of property allotted to Shashidharan reveal that to the east, there is road spared in Sy.No.38/1 and even in the south also, road measuring 10 feet in width has been shown, but stated that both roads have been spared by the beneficiaries out of their land. Ex.P.72(a) to 72(c) are signatures Lakshmidevamma and witnesses to said document, Ex.P.73 is rough sketch appended with said Will and Ex.P.74 is death certificate of Lakshmidevamma, who died on 17.1.2016.
26. On the other hand, the defendant No.3 has given his evidence as DW1 reiterating the material facts of his written statement. DW1 even produced Ex.D.1 to D.13 in evidence. Ex.D.1 is Allotment letter issued in the name of Anusuyamma -defendant No.2 regarding Site No.434. Ex.D.2 is Sale deed dated 20.3.2002 executed by BDA in favour of Anusuyamma - defendant No.2, Ex.D.3 is Possession certificate standing in the name of 43 OS No.4145/2002 Anusuyamma - defendant No.2. Ex.D.4 is katha certificate, Ex.D.5 is demand register extracts and Ex.D.6 and D.7 are tax paid receipts, all with respect to Site No.434. Ex.D.8 is Sale deed dated 5.11.2003 executed by Anusuyamma - defendant No.2 in favour of Jayaram - defendant No.3 selling Site No.434 in his favour for Rs.3,50,000/-. Ex.D.9 is Khatha certificate standing in the name of 3rd defendant, Ex.D.10 and D.11 are tax paid receipts with respect to Site No.434. Ex.D.12 and D.13 are Certified copy of judgment and decree in OS.6748/2004 filed by defendant No.3 against the plaintiff - Lakshmidevamma and BDA for the relief of perpetual injunction with respect to Site No.434 based on the sale deed - Ex.D.8, the court decreed the said suit in favour of defendant No.3
27. The DW1 was subjected to cross-examination by learned counsel for the plaintiff, wherein he stated that he 44 OS No.4145/2002 has purchased property from defendant No.2. The cross- examination discloses that the witness had no knowledge about the site earlier. Further, he admits that towards north of property granted, there is a road and same runs east-west. He admitted that pipelines have been laid down in said road. He denied that there is road towards east of his property.
28. DW1 has further denied that defendant No.2 has not acquired title in the site granted to her and consequently he has not acquired title in the property. He does not know that there was proceedings in BDA not to allot Site No.434 since it is excess of 600 sq.ft. He has denied that though defendant No.2 has violated the regulations, he has purchased property. He has denied that he has not acquired title in the suit property under Ex.D.8. He has admitted that when he went to put up compound to his site, the plaintiff filed complaint stating 45 OS No.4145/2002 that the said site not belonged to this witness. He has even admitted that he has filed a suit against plaintiff with respect to B Schedule property and even BDA is party in the said suit. He has also deposed that said suit was decreed in his favour. He has denied that he has filed false suit. He has denied that if construction is made in his site, the plaintiff would suffer obstruction to the air and light. He has denied that the plaintiff is facing obstruction to move towards north of his property.
29. Further, the Assistant Engineer of 1st defendant authority has filed affidavit evidence as DW2 narrating the material facts of its written statement. Even this witness was put to cross-examination by the learned counsel for the plaintiff, wherein stated that after verifying the records relating to Site No.434, he is giving evidence in this suit. He deposed that he is ready to produce documents, which are necessary and if required. He admitted that Site 46 OS No.4145/2002 No.434 is allotted as per rules. He has denied that house of the plaintiff is facing towards east. As per him, the house of the plaintiff is facing towards south. Even he has stated that as per Ex.P.12, Site No.434 is within the boundary towards east: road, which is measuring 40 feet and same ends near the property of plaintiff. He also admitted that defendant No.3 requested the BDA to allot alternative site since there is dispute about site given to her and that she has sought for allotment of Site No.434 or
766. He has also deposed that towards east of disputed site, there is road. As per him, it was 40 feet in width. Thus, the evidence of this witness indicate that site No.434 is granted to defendant No.2 and she has requested authority to allot alternative site stating that there is dispute. However, there is no suggestion that there is no road towards east and south of Schedule A property. Therefore, evidence of this witness does not undo the clear 47 OS No.4145/2002 and cogent evidence of PW1 that there is a road towards east and south of suit property.
30. In this case, the court appointed Court Commissioner at the instance of defendant No.3 , who had filed IA under Order 26 Rule 9 of CPC on 21.2.2011, wherein he had prayed the court to appoint a Court Commissioner to hold spot inspection and submit report to assist this court to arrive at proper conclusion with regard to the claims made by respective parties and this court after hearing the learned counsel for the parties allowed the IA by order dated 17.7.2013 and Sri.K.H.Thimmaiah - Advocate was represented as Court Commissioner. The Court Commissioner was summoned for giving evidence at the instance of defendant No.3. The learned Court Commissioner has given his evidence that on 21.9.2014 he visited the spot after giving notice to both the parties and he has conducted the spot inspection and drawn sketch 48 OS No.4145/2002 and mahazar. His hand sketch is marked at Ex.C.2 and computerized sketch is marked as Ex.C.2(a). The mahazar drawn by him is marked as Ex.C.3. The Court Commissioner carried out commission work and filed his report as per Ex.C.4. The learned counsel for the defendant No.3 has cross-examined the Court Commissioner, wherein also the learned Court Commissioner has admitted that eastern side of A Schedule property, there is 35th Main road is situated. He has even admitted that towards southern side of A Schedule property, 1st cross road is situated. This evidence is sufficient to hold that the plaintiff has alternative roads towards east and south of A Schedule property. When such being the case, his plea for easementary right cannot be accepted.
31. Thus, the entire appreciation of oral and documentary evidence, it is crystal clear that the main 49 OS No.4145/2002 relief claimed by the plaintiff is right to easement set up on the property of defendant No.3. But, however defendant No.3 has successfully demonstrated that there is road towards east and south of the suit property. These important evidence was elicited in the cross of PW1 and so also the evidence of Commissioner. Such being the case, the plaintiff cannot succeed in the suit. If the evidence of Commissioner is carefully read, there is no suggestion that there is no road lying towards east and south of the suit property. A perusal of decision of Hon'ble High Court of Karnataka in ILR 2005 KAR 1188 (R.Paramasivan and another V/s Smt.T.Anusuya) case referred supra, it is held as under:
"Indian Easement Act, 1882 - Sections 13, 13A, 14 - Meaning of Necessity under - Held - Easement of necessity means absolute necessity - Convenience is not the test, but what is required is absolute necessity - On alternative passage on the 50 OS No.4145/2002 south eastern side of the passage - such being the case, it cannot be said that the suit passage in question was a matter of necessity as per Section 13 and 14 of the Indian Easement Act - Unless it is matter of necessity and if there is disruption for the said passage, the same cannot be claimed as a matter of right".
32. A careful reading of the above said decision of the Hon'ble High Court of Karnataka makes it crystal clear that easement of necessity means absolute necessity and that convenience is not the test, but what is required is absolute necessity. Even in this case, the plaintiff though having road towards east and south of his property, setting up right to easement on B Schedule property, which cannot be accepted.
51 OS No.4145/2002
33. Further, the Hon'ble High Court of Madhya Pradesh in AIR 2013 MP 187 (Thomas Ambrose thru. LRs v. Ramdas Balmik) has referred supra, has held as under:
"Easements Act (5 of 1882), S.4, S.15 - Right to easement - Absolute necessity -
Construction raised by defendant in passage, allegedly came in way of ingress and egress of plaintiff - Alternative way available to plaintiff to approach his house apart from said passage - Element of absolute necessity absent - Easement of necessity not granted as alternative passage available".
34. A careful perusal of above referred decision of Hon'ble High Court Madhya Pradesh also make it clear that a alternative way was available to the plaintiff in that case to approach his house apart from the construction raised by the defendant in the passage. Since there available alternative way to the plaintiff to approach his house apart from the passage in dispute, which was not being used by 52 OS No.4145/2002 him (plaintiff) the Hon'ble High Court held that the plaintiff cannot be granted easement of necessity as an alternative passage is available to him. It is needless to mention that even in this case there is ample evidence to show that there is a road available to the east of the suit property and so also way towards south of the suit property.
35. Further, the Hon'ble Supreme Court in (2005)1 SCC 471 (Justiniano Antao and others v. Bernadette.B Pereira(SMT) case referred supra, it is held as under:
"Easement Act, 1882 - Schedule .15, 13 and 14 - Acquisition of right of way by prescription - Easement of necessity -
Requirements of - Factors to be considered - Held, for acquisition of right of way by prescription it has to be shown that incumbent has been using said land as of right peacefully and openly and without any interrutpon for the past twenty years - Specific pleadings have to be averred and categorical evidence led in 53 OS No.4145/2002 general, and specifically in respect of dates between which right of way concerned has been used for (at least) twenty years - On facts, neither was there any specific averment nor evidence on record necessary to establish prescriptive right of access claimed by plaintiff - On the evidence, not only had plaintiff not been using said access through the property of the defendants for the required twenty years, said access was obstructed by defendants as soon as they became aware of it on their return form the sea - If plaintiff had no access to her property respect through property of defendants then perhaps the same could have been considered as an easement of necessity, but since plaintiff has an access on the southern side of her property, there is no reason why property of other persons should be permitted o be used for access".
36. A careful perusal of the above decision of Hon'ble Supreme Court referred above, it is clear that in 54 OS No.4145/2002 that case the plaintiff had an access on the southern side of her property, there is no reason why property of other persons should be permitted to be used for access. Even in this case also the plaintiff has access to his property through a road existing towards east and south of the suit property and such being the case the granting of relief of easement of necessity does not arise.
37. I find that the principles of law laid down in the above said decisions relied upon by learned counsel for defendant No.3 supported his case. On the other hand, the decisions relied upon by the learned counsel for the plaintiff are not applicable to the facts of the case. The plaintiff has not specifically questioned the validity of forming sites nor questioned the validity of grant of B Schedule site to the defendant No.2. Moreover, the validity of acquisition of land under Land Acquisition Act, 1894 cannot be questioned before the civil court as the civil court 55 OS No.4145/2002 has no jurisdiction to grant such relief as held by the Hon'ble Supreme Court in (2013)3 SCC 66 (Commissioner, Bangalore Development Authority and another v. Brijesh Reddy and another). Therefore, the principles of law laid down by the Hon'ble High Court of Karnataka in 2009(5) Kar.L.J. 266 (DB) (Sudha S.Patil V/s State of Karnataka and another) is not applicable to the facts of the case. Similarly even the principles of law laid down by the Hon'ble High Court of Karnataka in 1981(1) Kar.L.J. 250 (O.S.Anchan v. Grace.W Enthat and others) is not applicable to the facts of the case.
38. Thus, an oral appreciation of entire oral and documentary evidence produced by the plaintiff go to show that the plaintiff has failed to establish the claim even on the basis of fatal admissions given by him in the cross- examination. Thus, I find that the plaintiff has failed to establish that there exist a road in B Schedule property. 56 OS No.4145/2002 The plaintiff has miserably failed to establish that she has no other access to A Schedule property except through B Schedule road. As I already indicated, there are two roads available to the east and south of A Schedule property. The plaintiff failed to prove the right of easement by prescription over B Schedule property as there is no specific and required pleading to show that he is using the said road for last 20 years though there being plea of right of easement through prescription in para No.6 of the plaint. In view of lack of specific pleading and specific relief claimed, the said plea of right of easement by prescription cannot be accepted. The plaintiff failed to establish that compound was attempted to be constructed by enclosing B Schedule road. The plaintiff has not challenged the allotment of B Schedule property in favour of 2nd defendant in the proper forum. The decision relied upon by the learned counsel for the defendant No.3 reveal that the acquisition proceedings cannot be challenged before this court. The plaintiff also 57 OS No.4145/2002 failed to establish that sale deed executed by 2nd defendant in favour of 3rd defendant is void. The plaintiff has no legal right to question the sale deed dated 25.11.2010. The plaintiff has oral and documentary evidence to show that originally the plaintiff has bequeathed A Schedule property by Will dated 25.11.2010 as plaintiff has examined one of the attesting witness to the said document. Moreover, the Will is registered Will. The defendants have not disputed about ownership of plaintiff in A Schedule property. Thus, I find that the suit of the plaintiff is liable to be dismissed. Hence, I have answered Issue Nos.1, 3 & 4, Addl. Issue No.1 and recasted Issue No.2 are answered in the negative and Recasted Addl. Issue No.2 is answered in the affirmative.
39. ISSUE NO.5: In view of my findings on above said issues, the suit filed by the plaintiff is liable to be 58 OS No.4145/2002 dismissed with costs. Hence, in the result, I proceed to pass the following :
ORDER The suit of the plaintiff is dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by her, thereafter corrected and then pronounced by me in the open court, on this the 25th day of September 2019).
( KASANAPPA NAIK ) XLI ADDL.CITY CIVIL JUDGE BANGALORE ANNEXURE I. List of witnesses examined on behalf of :
a) Plaintiff's side:
P.W.1 Vishwanath
P.W.2 S.P.Jayaram
b) Defendant's side:
D.W.1 M.Jayaram
D.W.2 C.N.Ashok
59 OS No.4145/2002
II.List of documents exhibited on behalf of :
a) Plaintiff's side:
Ex.P.1 Release deed
Ex.P.2 Mutation register extract
Ex.P.3 RTC Extract
Ex.P.4 One electricity bill
Ex.P.5 One electricity receipt
Ex.P.6 One water bill
Ex.P.7 The water bill paid receipt
Ex.P.8 Challan for having remitted the
amount to CMC, Bommanahalli
Ex.P.9 Village map pertaining to Sarakki
Village
Ex.P.10 The General Power of Attorney
Ex.P.11 Rough sketch
Ex.P.12 The blue print of CDP Plan
Ex.P.13 Hissa Tippani
Ex.P.14 Akarband
60 OS No.4145/2002
Ex.P.15 Copy of application given by plaintiff
to BDA
Ex.P.16 Corresponding acknowledgment
issued by BDA
Ex.P.17 Receipt for having paid money to
obtain the copy of layout plan
Ex.P.18 Bank receipt for having remitted the
amount towards issuance of plan
Ex.P.19 Layout plan issued by BDA
Ex.P.20 Tax paid receipt issued by Grama
Panchayath in respect of residential
house
Ex.P.21 Electricity bill
Ex.P.22 & 23 Corresponding receipts for having paid the bill Ex.P.24 One more KEB Bill Ex.P.25 Receipt for having paid the electricity bill Ex.P.26 Receipt issued by BDA to provide a case file for the purpose of its study Ex.P.27 Endorsement issued by BDA permitting PW1 to look into file 61 OS No.4145/2002 Ex.P.28 Receipt for having submitted application to obtain certain documents Ex.P.29 Notice issued by BDA calling upon PW1 to obtain documents Ex.P.30 Bank receipt for having deposited amount Ex.P.31 File provided to him by the BDA consists of 53 sheets Ex.P.32 to 35 4 Photographs Ex.P.32(a) Corresponding negatives pertaining and 35(a) to suit schedule property Ex.P.36 Receipt issued by photographer Ex.P.37 Certificate issued by Grama Panchayat Chairman Ex.P.38 RTC in respect of Sy.No.38/1 Ex.P.39 MR Extract Ex.P.40 Tax paid receipt Ex.P.41 Application submitted to BBMP Ex.P.42 Acknowledgment issued by BBMP for having submitted application Ex.P.43 & 44 Complaints submitted to police 62 OS No.4145/2002 Ex.P.45 Acknowledgment issued by BDA Ex.P.46 C/c of order sheet obtained from BDA under RTI Act Ex.P.47 Caste and Income certificate submitted to BDA by defendant Ex.P.48 Certificate regarding Caste and Income Certificates submitted by 2nd defendant Ex.P.49 Allotment letter issued in favour of 2nd defendant measuring 20 X 30 feet site Ex.P.50 Amount paid receipt in respect of 20 X 30 feet site Ex.P.51 C/c of plaint in OS.6748/2004 Ex.P.52 Possession certificate issued by BDA in favour of 2nd defendant Ex.P.53 Endorsement issued by BDA in favour of 2nd defendant Ex.P.54 Sale deed executed by BDA in favour of 2nd defendant Ex.P.55 Allotment letter issued by BDA in favour of 2nd defendant with respect to Site No.1239 at BTM Layout Ex.P.56 Schedule confirmation letter issued by BDA in favour of 2nd defendant 63 OS No.4145/2002 Ex.P.57 Application submitted by 2nd defendant to BDA for allotment of other site Ex.P.58 Possession certificate issued by BDA in favour of 2nd defendant in respect of Site No.1239 at BTM Layout Ex.P.59 The letter written by Commissioner, BDA to Law Department, BDA Ex.P.60 Another letter like Ex.P.59 Ex.P.61 Application submitted by 2nd defendant to BDA Ex.P.62 Encumbrance certificate in respect of Site No.1239 Ex.P.63 Schedule Caste certificate issued by Tahsildar in respect of 2nd defendant Ex.P.64 Copy of complaint lodged to BDA dated 10.9.2014 Ex.P.65 RTI application dated 25.10.2014 Ex.P.66 Receipt issued by BDA Ex.P.67 Endorsement issued by BDA dated 7.11.2014 Ex.P.68 Application filed by BMTF dated 6.11.2014 64 OS No.4145/2002 Ex.P.69 Copy of letter from the Director BMTF dated 11.11.2014 Ex.P.70 Copy of letter from Joint Director, BMTF dated 4.12.2014 Ex.P.71 Copy of letter to BMTF dated 12.12.2014 Ex.P.72 Registered Will dated 25.11.2010 Ex.P.72(a) to Signatures
(c) Ex.P.73 Rough sketch Ex.P.74 Death certificate
b)Defendants' side :
Ex.D.1 Allotment letter issued in the name of Anusuyamma Ex.D.2 Sale deed executed by BDA in favour of Anusuyamma Ex.D.3 Possession certificate standing in the name of Anusuyamma Ex.D.4 Khatha certificate Ex.D.5 Demand register extract Ex.D.6 & 7 Two tax paid receipts Ex.D.8 Sale deed executed by Anusuyamma in favour of defendant No.3 65 OS No.4145/2002 Ex.D.9 Khatha certificate standing in the name of 3rd defendant Ex.D.10 & 11 Two Tax paid receipts Ex.D.12 C/c of judgment and decree in OS.6748/2004 III. a) List of witnesses examined on behalf of Court Commissioner:
C.W.1 : Thimmaiah K.H.
b) List of documents exhibited on behalf of Court Commissioner:
Ex.C.1 Commissioner Report
Ex.C.2 Original hand written sketch
Ex.C.3 Computerized sketch containing the
information of handwritten sketch
Ex.C.4 Mahazar drawn oat the spot on
21.9.2014
Ex.C.5 Copies of notice issued to counsels
for the parties
( KASANAPPA NAIK )
XLI ADDL.CITY CIVIL JUDGE
BANGALORE
66 OS No.4145/2002