Bangalore District Court
Smt.Nanjamma vs M/S.South Western Railways on 13 April, 2016
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-41) AT BENGALURU.
Dated this the 13th day of April 2016.
PRESENT
SRI.JINARALAKAR. B.L.,
B.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge, Bengaluru.
O.S.NO. 3768/2007
PLAINTIFFS : 1. SMT.NANJAMMA,
W/o. Late Narayanappa,,
Aged about 55 years,
2. SMT.ANUSUYAMMA,
D/o. Kempanna,
Aged about 35 years,
Both are residing at Thanisandra,
K.R.Puram Hobli, Bengaluru East Taluk,
Represented by their GPA Holder-
Nagaraju S/o. Gangaiah, Aged about
35 years, No.70, Jyothinivas, 7th Main,
Meenakshinagar, Bengaluru-560 079.
(By Sri.G.Chandrahasa &
Sri.D.S.Sundar, Advocates.)
AND:
DEFENDANT: M/S.SOUTH WESTERN RAILWAYS,
Office at City Railway Station,
Bengaluru City, Bengaluru,
Represented by Divisional Railway
Manager.
(By Sri.Ramesh Upadhyaya &
Sri.B.S.Byregowda, Advocates.)
2 O.S.3768/2007
i) Date of Institution of the
suit. 23.05.2007
ii) Nature of the suit. Permanent &
Mandatory Injunction
iii) Date of the
commencement of 05.02.2009
recording of evidence.
iv) Date on which the
judgment was pronounced. 13.04.2016
v) Total Duration Year/s Month/s Days
08 10 20
***
JUDGMENT
The plaintiffs have filed this suit against the defendant for Permanent Injunction restraining the defendant, their agents, servants or any one claiming under or through them from interfering with the suit schedule property- All that piece and parcel of the property bearing Sy.No.25/2, measuring 30-guntas, situated at Geddalahalli Village, K.R.Puram Hobli, Bengaluru East Taluk and bounded on East by: Property of the defendant, West by: Land in Sy.No.11/8 of Thanisandra Village of Smt.Nagamma, North by: Land in the Sy.No.28 of 3 O.S.3768/2007 Geddalahalli Village of Ramachandrappa and South by:
Land in the same survey number belongs to Pillappa and for Mandatory Injunction directing the defendant to remove the only boundary stone wrongfully fixed on the middle of the suit schedule property and costs, etc. .2. The averments of the plaint in brief are that:
The suit schedule property is the ancestral property of plaintiffs and earlier, Khata of the land in Sy.No.25/2 was standing in the name of 1st plaintiff's mother Late Mariyamma, to an extent of 1-acre 29-guntas. The said survey number totally measures 3-acres 23-guntas including 3-guntas of kharab land. Out of total land, the mother of 1st plaintiff was owning northern half portion measuring 1-acre 29-guntas and the remaining southern portion measuring 1-acre 31-guntas was owned by one late Muniveerappa.
An extent of land measuring 2-acres 1-gunta has been acquired by the Special Land Acquisition Officer, 4 O.S.3768/2007 Railway, Bengaluru, out of the total land of 3-acres 23- guntas for formation of Bengaluru-Guntakal Broad Gauge conversion project proposed new line between Yelahanka and Byappanahalli. After acquiring the land for the Railway, the suit schedule property was retained by the plaintiffs. Though the land has been acquired in part out of the said survey number, Revenue Records, such as Pahani, Mutation, Sketch have not been transferred in the name of the defendant. Though Khata is standing in the name of the plaintiff to an extent of 1-acre 29-guntas, the plaintiffs have got right only over the suit schedule property to an extent of 30-guntas.
The 1st plaintiff had given an application on 17.05.2006 to the defendant to conduct joint survey in respect of the land bearing Sy.No.25/2 of Geddalahalli Village to demarcate the same and fix the boundaries to an extent acquired by the Special Land Acquisition Officer, Railways and so far as the defendant Authority has not came forward to take any action. There was an illegal 5 O.S.3768/2007 attempt by the officials of the defendant to encroach upon the eastern portion of the suit schedule property without conducting the survey and demarcating the boundaries fixed a stone in the middle of the schedule property. On objections, the defendant has not removed the same nor surveyed the acquired portion by conducing a joint survey and they had deliberately evading to remove the stone and wrongfully fixed only one stone in the middle of the schedule property and trying to interfere with the same.
The plaintiffs are in lawful possession and enjoyment of the suit schedule property, since the defendant has ignored to conduct joint survey and fix the boundaries as per the application dated 17.05.2006, one more application was given dated 26.03.2007 requesting the defendant and Special Land Acquisition Officer, Railways to conduct the joint survey and fix the boundary stones. But till date, no action has been taken by the defendant. The officials of the defendant have been objecting to cultivate the suit schedule property and on 19.05.2007, while the plaintiffs 6 O.S.3768/2007 were cultivating the schedule land, some of the officials of defendant came and objected for cultivation without having any right, title or interest over the same and also posed threat to take away the ploughing equipments and lodged criminal case. Hence, the plaintiffs have filed the present suit.
.3. In pursuance of suit summons, the defendant appeared through counsel and filed written statement denying the material averments / allegations of the plaint regarding plaintiffs retaining 30-guntas of land out of 1- acre 29-guntas, interference by encroachment and fixing the stone in the middle of the schedule property, etc. However, the defendant admitted the acquisition of the land for formation of Bengaluru-Guntakal Broad Gauge conversion project. Further the defendant contended that the suit is not maintainable and not properly represented and bad for non-joinder of necessary parties. The suit is liable to be dismissed for want of issuance of statutory notice. The plaintiffs are not the owners of the schedule 7 O.S.3768/2007 property and filed the suit with an intention to usurp the Railway property. The land in Sy.No.25/1, 25/2 and 25/3 was acquired by the defendant measuring to an extent of 3-acres 29-guntas and is in possession of the same. The Land Acquisition Officer at the time of handing over the acquired land, fixed boundary stones as per the acquisition details made in the land plan. Merely because, the name was not changed in Pahani, Mutation is not a ground to claim any right over the schedule property. The plaintiffs are not the owners of the schedule property and conducting any joint survey and fixing the boundaries does not arise. The question of considering the application of the plaintiffs is without any basis. When the property itself is not in existence, the question of any encroachment is without any basis and the defendant has not encroached upon any alleged property or the schedule property and demarcating the land will not arise. The defendant has not fixed the stone in the middle of the suit schedule property. The suit schedule property is not in existence and not encroached any property, the question of conducting joint 8 O.S.3768/2007 survey does not arise. Moreover, the boundaries are fixed almost 20 years back and same was in existence. The plaintiffs have raised the dispute as to the fixation of the boundaries only in the year 2006 and even according to them, that no survey has been conducted in respect of their claim and when such being the case, the averments made to the effect that the defendant is interfering with the suit schedule property is false and baseless. There is no cause of action and the defendant has not interfered with any alleged right of the plaintiffs. The boundaries and stones were fixed as per the land plan prepared by the Land Acquisition Officer and the alleged interference is imaginary and prays to dismiss the suit with exemplary costs.
.4. On the pleadings of both parties, the following issues framed:
1. Whether the plaintiffs prove that they are in lawful possession over the suit schedule property as on the date of suit? 9 O.S.3768/2007
2. Whether the plaintiffs prove the alleged interference of defendants in the suit schedule property?
3. Whether defendant proves that the suit schedule property has been acquired for it for formation of Bengaluru-Guntakal Broad Gauge Railway line?
4. Whether the plaintiffs are entitled for the relief of permanent injunction against the defendant as prayed in the plaint?
5. What decree or order?
.5. In support of the case, the plaintiffs got examined their General Power of Attorney Holder as PW.1, got marked documents at Ex.P.1 to Ex.P.11 and closed the side. The defendant got examined its official-Section Engineer as DW.1, got marked documents at Ex.D.1 & Ex.D.2 and closed the side. The Court Commissioner also examined as CW.1 and the documents at Ex.C.1 to Ex.C.4 are marked.
.6. Heard arguments on both side.
.7. My answers to the above Issues are:
Issue No.1 - Affirmative.10 O.S.3768/2007
Issue No.2 - Affirmative.
Issue No.3 - Negative.
Issue No.4 - Affirmative.
Issue No.5 - As per final order for the following:
REASONS .8. ISSUES No.1 TO 3:- As these Issues are connected to each other, I have taken all together for discussion for the sake of convenience and to avoid repetition.
The plaintiffs contended that they are in lawful possession of the suit schedule property, the officials of the defendant are interfering with their possession by obstructing the cultivation without any right, title or possession over the same, etc. Per contra, the defendant has denied the said contention of the plaintiffs and interalia contended that the land in Sy.No.25/1, 25/2 and 25/3 measuring 3-acres 29-guntas was acquired and is in possession of the same and there is no existence of the schedule property, etc. 11 O.S.3768/2007 To substantiate the respective contentions of the parties, the plaintiffs got examined their General Power of Attorney Holder as PW.1, who in his affidavit evidence stated regarding the land bearing Sy.No.25/2 of Geddalahalli Village, measuring 3-acres 23-guntas including 3-guntas of Kharab land, out of which northern portion measuring 1-acre 31-guntas belonging to Pillappa and remaining southern portion measuring 1-acre 29- guntas belonging to 1st plaintiff, out of the same, acquisition of 2-acres 1-gunta by the Railway for formation of Bengaluru-Guntakal Broad Gauge conversion project, the plaintiffs' lawful possession, enjoyment of the suit schedule property, illegal interference of the defendant, etc., by reiterating the averments of the plaint and got marked documents at Ex.P.1 to Ex.P.11.
.9. Per contra, the defendant got examined its official- Section Engineer as DW.1, who in his affidavit evidence stated regarding acquisition of the land in Sy.No.25/1, 25/2 and 25/3 measuring 3-acres 29-guntas by the 12 O.S.3768/2007 defendant and possession of the same, non-existence of schedule property, etc., and further denied the plaintiffs retaining the suit schedule property, alleged interference and got marked documents at Ex.D.1 and Ex.D.2.
The Court Commissioner was examined as CW.1, who in his evidence stated regarding execution of commission work, submitting report and produced Mahazar at Ex.C.1, Sketch at Ex.C.2, Report at Ex.C.3 and Memorandum at Ex.C.4. It is not in dispute that the land acquired for formation of Bengaluru-Guntakal Broad Gauge conversion project in Sy.No.25 of Geddalahalli Village. The plaintiffs allege that the land measuring 2-acres 1-gunta has been acquired out of 3-acres 23-guntas in Sy.No.25/2, whereas, the defendant contended that the land in Sy.No.25/1, 25/2 and 25/3 measuring 3-acres 29-guntas was acquired for formation of Bengaluru-Guntakal Broad Gauge conversion project and same is in possession and boundaries are fixed almost 20 years back, etc. The plaintiffs have produced RTC Extract for the year 2006- 13 O.S.3768/2007 2007 at Ex.P.2 wherein the name of 1st plaintiff is appearing in Possessors' column to an extent of 1-acre 29- guntas, in respect of the land bearing Sy.No.25/2 of Geddalahalli Village. The plaintiffs have produced Mutation Register Extract at Ex.P.3, which shows mutation in the name of the 1st plaintiff to an extent of 1-acre 29-guntas in respect of the land bearing Sy.No.25/2. From Ex.P.2 and Ex.P.3 go to show that the land measuring 1-acre 29- guntas in Sy.No.25/2 is standing in the name of 1st plaintiff.
.10. The defendant has produced Railway Land Plan of Thanisandra and Geddalahalli Village at Ex.D.2 wherein the land measuring 3-acres 29-guntas acquired in land bearing Sy.No.25/1, 2, 3 and the defendant also contended regarding acquisition of the said land. But, Ex.D.2 does not specifically disclose extent of each land acquired in Sy.No.25/1, 25/2 and 25/3. The plaintiffs contended that the land bearing Sy.No.25/2 is totally measuring 3-acres 23-guntas and same is supported by Ex.P.2-RTC Extract. 14 O.S.3768/2007 The plaintiffs also produced certified copy of Survey Sketch prepared by Special Land Acquisition Officer at Ex.P.11, wherein the extent of land acquired by the Railway is mentioned as 2.01 out of the land Sy.No.25/1 and it goes to show that the defendant has acquired 2-acres 1-gunta out of the land bearing Sy.No.25/2, measuring 3-acres 23- guntas. The defendant having acquired 2-acres 1-gunta, the other portion of the land in Sy.No.25/1 remains with the 1st plaintiff and Pillappa.
.11. The Court Commissioner who examined as CW.1 stated regarding execution of commission work, conducting mahazar, preparing sketch, etc. In the sketch at Ex.C.2, demarcated the acquired portion measuring 2- acres 1-gunta in green colour, encroachment of 21-guntas by the defendant in orange colour and 29-guntas in possession of the plaintiff in yellow colour. Ex.C.2-Sketch supports the contention of the plaintiffs regarding encroachment by the defendant. On the other hand, the plaintiffs have produced copy of application given to the 15 O.S.3768/2007 Revisional Manager, Railway dated 17.05.2006 at Ex.P.4, copy of the same application given to the LAO at Ex.P.5 and copies of the applications given to the Railway Department and LAO dated 26.03.2007 at Ex.P.7 and 8, which shows submitting the said applications requesting to arrange for joint survey and fix the boundaries of the property bearing Sy.No.25/2 of Geddalahalli Village. The defendant has not produced any reliable documentary evidence to show that the suit schedule property has been acquired for formation of Bengaluru-Guntakal Broad Gauge Railway line. The evidence of PW.1 coupled with above referred documentary evidence go to show that the plaintiffs are in lawful possession of the suit schedule property and the officers of the defendant are interfering with the suit schedule property and also fixed the stone in the middle of the schedule property. Hence, the plaintiffs prove that they are in lawful possession of the suit schedule property and interference of the defendant. On the contrary, the defendant has failed to prove that the suit schedule property has been acquired for formation of 16 O.S.3768/2007 Bengaluru-Guntakal Broad Gauge Railway line, accordingly, I answered Issues No.1 and 2 in the affirmative and Issue No.3 in the negative.
.12. ISSUE NO.4: The plaintiffs have filed this suit against the defendant for Permanent Injunction restraining defendant, their agents, servants or any one claiming under or through them from interfering with the suit schedule property and for Mandatory Injunction directing the defendants to remove the only boundary stone wrongfully fixed on the middle of the suit schedule property and costs, etc. The plaintiffs having proved their possession over the suit schedule property and interference by the defendant are entitled for the relief of Permanent and Mandatory Injunction as prayed and accordingly, I answered Issue No.4 in the affirmative.17 O.S.3768/2007
.13. ISSUE NO.5: In view of the reasons and discussion on the above Issue Nos.1 to 4, I proceed to pass the following:
ORDER Suit of the plaintiffs is hereby decreed as under:
The defendant, their agents, servants or any one claiming under or through them are hereby restrained from interfering with the plaintiffs' possession of the suit schedule property.
Further the defendant is directed to remove the boundary stone fixed in the middle of the suit schedule property.
No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript print is corrected and then pronounced by me in the open court on this the 13th day of April 2016.) (JINARALAKAR. B.L.) XL Addl. City Civil & Sessions judge, Bengaluru.18 O.S.3768/2007
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS: PW.1 -Nagaraju S/o. Gangaiah.
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFFS:
Ex.P.1 General Power of Attorney.
Ex.P.2 RTC Extract for the year 2006-07.
Ex.P.3 M.R. Extract.
Ex.P.4 Copy of application given to Revisional
Manager, Railway dated 17.05.2006.
Ex.P.5 Copy of the same application given to
LAO.
Ex.P.6 Certified copy of Atlas.
Ex.P.7 & Copies of applications given to Railway
Ex.P.8 Department and LAO.
Ex.P.9 Certified copy of Award dated 24.09.2004.
Ex.P.10 Endorsement issued by the BDA dated
10.06.2008.
Ex.P.10(a) Postal Cover.
Ex.P.11 Survey Sketch prepared by Special Land
Acquisition Officer pertaining to
Sy.No.25/2 of Geddalahalli Village.
WITNESSES EXAMINED ON BEHALF OF
DEFENDANT:
DW.1 -Ashok Kumar S/o. Sri.B.Venkatasubbaiah.
DOCUMENTS PRODUCED ON BEHALF OF
DEFENDANT:
Ex.D.1 Authorization Letter dated 22.03.2010
issued by the defendant.
Ex.D.2 Railway Land Plan of Thanisandra &
Geddalahalli Village.
19 O.S.3768/2007
EVIDENCE OF THE COURT COMMISSIONER:
CW.1 -V.N.Madlerappa S/o. Narasimhamurthy.
DOCUMENTS PRODUCED BY THE COURT
COMMISSIONER:
Ex.C.1 Mahazar.
Ex.C.2 Sketch.
Ex.C.3 Report.
Ex.C.4 Memorandum.
(JINARALAKAR. B.L.)
XL Addl.City Civil & Sessions judge,
Bengaluru.