Bangalore District Court
Smt. Chandramma vs Sri. K.Bachappa on 10 August, 2015
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE CITY (C.C.H.No.6)
This the 10th day of August, 2015
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O.S.No.7667/2006
PLAINTIFF: Smt. Chandramma
W/o late Ramakrishnappa,
Aged about 60 years,
R/o Doddakallasandra,
Kanakapura Road,
Bangalore- 560 069
(Since dead by LRs.)
1a) Sri. R.Ramesh,
Aged about 48 years,
S/o late Ramakrishnappa.
1b) Sri. R.Shanthakumar,
Aged about 37 years,
S/o late Ramakrishnappa.
1c) Smt. Lakshmi,
Aged about 40 years,
D/o late Ramakrishnappa.
1d) Sri. R.Anandakumar,
Aged about 32 years,
S/o late Ramakrishnappa.
All R/o Doddakallasandra,
Kanakapura Road,
Bangalore- 62.
1e) Smt. R.Sujatha,
W/o Manjunatha,
Aged about 38 years,
-2- O.S.7667/2006
R/at Gowdanahalli,
Yeggadevanahalli Village
Yeggadevanahalli Post,
Tubugere Hobli,
Doddaballapura Taluk.
(By Sri. RAK, Advocate)
Vs.
DEFENDANTS: 1. Sri. K.Bachappa,
Since dead by his LRs.
1a) Sri. Thimmegowda,
Aged about 52 years,
S/o late K.Bachappa.
1b) Sri. Devaraj,
Aged about 42 years,
S/o late K.Bachappa.
1c) Sri. Nagaraju,
Aged about 38 years,
S/o late K.Bachappa.
1d) Smt. Lakshmidevi,
Aged about 35 years,
D/o late K.Bachappa.
All are R/at Ganesha
Temple Road, Doddakallasandra,
Kanakapura Road,
Bangalore- 560 062.
2. Sri. Munishamaiah,
Since dead by his LRs.
2a) Smt.Lakshmidevi
Aged about 35 years,
W/o late Munishamaiah.
2b) Kumari Sahana
Aged about 15 years,
D/o late Munishamaiah.
-3- O.S.7667/2006
2c) Master Niroop Gowda,
Aged about 8 years,
S/o late Munishamaiah.
No.2(b) and 2(c) are minors
and represented by their
Mother and natural guardian
Smt.Lakshmidevi i.e. 2(a).
All are R/at Ganesha
Temple Road, Doddakallasandra,
Kanakapura Road,
Bangalore- 560 062.
3. The Gramapanchayath of
Doddakallasandra Village,
Uttarahalli-1 Hobli,
Bangalore District,
Represented by its Secretary.
(By Sri.HVS, Advocate for D1 & 2
Sri. Mylarappa, Advocate for D.3)
Date of institution of the suit: 28.08.2006
Nature of the suit: Declaration & Injunction.
Date of commencement of 10.06.2011
recording of evidence:
Date on which Judgment was 10.08.2015
pronounced
Duration Days Months Years
13 11 08
JUDGMENT
This suit filed by the plaintiff against the defendants is one for declaration declaring that the
-4- O.S.7667/2006 plaintiff is then in peaceful possession and enjoyment of the suit schedule property and for continuance of which she is entitled legally and the defendants shall have no manner of rights whatsoever to dispossess her there from except under the due course of law; for permanent injunction restraining the defendants, their men or anybody claiming on their behalf from interfering and disturbing the plaintiff's peaceful possession and enjoyment of the suit property in any manner and dispossessing her there from and for costs and such other reliefs.
2. a) The plaintiff has stated that she is the sole and absolute owner of the agricultural property measuring to an extent of 0-03 guntas in Sy.No.86/7 of Doddakallasandra Village, Uttarahalli Hobli, Bangalore South Taluk, which she has acquired by way of successory right. The RTC produced depicts this fact.
b) According to the plaintiff, an extent of 0-05 guntas of land in Sy.No.86/7 of Doddakallasandra
-5- O.S.7667/2006 village, Uttarahalli Hobli, Bangalore South Taluk, which is referred as suit schedule property, situated on the western side abutting the plaintiff's own property in Sy.No.86/7, is a Government land and the same is also in possession and occupation and cultivation and also enjoyment of the plaintiff and her family members for long time. Copies of survey records i.e. Utthaara Karda, Atlas and Settlement Akarbandh are also produced. These documents disclose the fact that the suit schedule property is situated abutting the plaintiff's own property. She also stated that she also produced the relevant documents to show the location of other adjacent owners' properties. This fact goes to show that the title of the suit property exists as Government land for several decades.
c) The plaintiff further stated that she herself and her family members, who have been cultivating their own land in Sy.No.86/7, are also cultivated the suit property since several years by and now and they are eking out their livelihood out of the same. The
-6- O.S.7667/2006 plaintiff and her family members have been in peaceful possession and enjoyment of the suit property even as on today. However the plaintiff and her family members till now have made several applications and representations to the Government/ Revenue Authorities seeking regularisation of their occupancy and grant of right in respect of the suit property, which is still pending as on today and the same is being constantly followed up by the plaintiff.
d) The plaintiff further stated that when such being the case, the 2nd defendant being a political influential person and who is incidentally a governing member of the village panchayath, started interfering with the peaceful possession and enjoyment of the right of the plaintiff and her family members in respect of the schedule property in various manner. The 2nd defendant started interfering in order to avenge against the plaintiff's children, who are his political rivals and has opposed his election etc. She also further stated that the plaintiff and her children tried to legally avert the same by calling the meeting
-7- O.S.7667/2006 of panchayath members and getting the 2nd defendant advised. The 2nd defendant used his money and political power and he has not only avoided the plaintiff's side, but also put them in greater turmoil. In para-7 and 8 of the plaint, the plaintiff also stated with regard to lodging of the police complaints against each other.
e) The plaintiff further stated that she came to know that the 2nd defendant, who failed in his effort, directly started causing trouble by way of disturbing the possession and enjoyment of the suit property and had began using the office of the 3rd defendant Gramapanchayath to isolate the plaintiff from the suit property in the name of his father-in-law Mr.K.Bacchappa, the 1st defendant in this case and had designed a plot in the style that the 1st defendant would donate the suit property to the 3rd defendant Panchayath for constructing a school and the panchayath would take over the suit property pursuant to the same, thereby dispossessing the plaintiff's family from the suit property etc.
-8- O.S.7667/2006
f) In para-10 of the plaint, she also stated that they rushed to the Taluk Office and extracted an RTC of the suit property on 25.7.2006, which discloses the name of the 1st defendant in the RTC. She also stated that she approached the Revenue Department seeking their intervention into the matter. Later the plaintiff came to know that the 2nd defendant in collusion with the 3rd defendant had decided to take over the suit property and conduct a foundation stone laying ceremony on 30.7.2006. In para-12 of the plaint, she also stated with regard to the Zilla Panchayath authorities conducted spot inspection etc. and also stated that the Zilla Panchqayath authorities failed to conduct any mahazar and they have not measured the property etc.
g) According to the plaintiff, The Panchayath Raj Act is very clear in this aspect that the panchayath can acquire the property to its account only through a legal document of transfer or through a valid allotment by the Government etc. Accordingly to the plaintiff, the 1st defendant does not acquire any
-9- O.S.7667/2006 nature of right in the suit property, as his name appearing in the RTC is simply an act of forgery, fraud etc. She also pleaded cause of action and accordingly praying this Court to decree the suit as prayed for.
3. The plaint schedule reads as follows:
All that piece and parcel of the agricultural property measuring to an extent of 0-05 guntas land in Sy.No.86/6 of Doddakallasandra village, Uttarahalli-1 Hobli, Bangalore South Taluk, Bangalore District and bounded on the:
East by: Sy.No.86/7 and 86/8;
West by: Sy.No.86/2;
North by: Road;
South by: Sy.No.86/5.
4. a) The 1st defendant filed written statement denying all the plaint averments and further contended that the plaint averment that the plaintiff is the absolute owner of agricultural property measuring 0-03 guntas in Sy.No.86/7 of Doddakallasandra Village, Uttarahalli Hobli, as the same is acquired by the plaintiff by way of succession is not within the knowledge of the 1st defendant. The statement of the plaintiff that the land in Sy.No.86/6 measuring 0-05
- 10 - O.S.7667/2006 guntas, which is situated on the western side of the plaintiff's land, is denied as false. The further statement of the plaintiff that the land is a Government land and she is in possession, occupation and cultivation with her family members is also false and plaintiff is put to strict proof of the same etc.
b) The 1st defendant further contended that the plaint averments that the suit property is a Government land in Sy.No.86/6 and the copies of the RTC produced for the year 1969 only reflects that the land belongs to the Government and same does not depict at any point of time cultivated by the plaintiff.
He also stated that it is not within the knowledge with regard to the complaints lodged against each other by the plaintiff and 2nd defendant.
c) The 1st defendant further contended that the plaint averment that the 1st defendant donated the land to the 3rd defendant panchayath by way of gift deed to construct school along with the family members is true and correct. Infact the name of the
- 11 - O.S.7667/2006 1st defendant is entered in the revenue records right from 1996-97 and since then the 1st defendant is in peaceful possession and enjoyment of the land and he is paying taxes to the Government etc. The revenue authorities taking into consideration the enjoyment of the suit property by the 1st defendant, which is abutting to the land bearing Sy.No.86/5 and 86/2, situated on the southern and western portion of the suit property entered the name of the 1st defendant in the revenue records and right from the year 1996, the RTC and revenue records stands in the name of the 1st defendant etc. and he is also paying taxes to the Government. The suit is also bad for non-joinder of necessary parties. There is no cause of action for the plaintiff to file this suit.
d) The 1st defendant further contended that the 1st defendant having legal right, executed gift deed in favour of the Government Higher Primary School. The plaintiff cannot challenge the testimony of the deed as she is not the affected party by virtue of the gift deed etc. Infact the land belongs to the 1st
- 12 - O.S.7667/2006 defendant was gifted for construction of Higher Primary School etc. In any event, the revenue records have to be questioned before the proper revenue authorities and the plaintiff cannot claim any relief before this Court. It at all if the plaintiff has got genuine cause, she would not have kept quiet from 1996.
e) According to the 1st defendant, when the plaintiff herself claims the suit property as a Government land, in what capacity she can claim her right over the suit property and this has to be established before the competent authorities. He also denied the possession of the plaintiff over the suit property etc. If at all if the RTC is forged document, it is kept open for the plaintiff to question the same before the revenue authorities etc. He also resisted the suit on several other grounds and prays for dismissal of the suit with costs.
5. a) The 3rd defendant also filed written statement denying all the plaint averments and further
- 13 - O.S.7667/2006 contended that the suit is not maintainable. The latches in framing the suit itself is sufficient to dismiss the suit. The plaintiff could not have any grounds to approach this Court. The plaintiff failed to substantiate her claim in proving the title of the suit property. The plaintiff is not entitled for the relief of declaration and title as claimed in the suit. The RTC entry reveals that the same is a Government land since 1969. When it is a Government land, the plaintiff is not supposed to have any relief from the hands of this Court, that too in the nature of declaration and injunction etc. There is no cause of action to file this suit.
b) According to the 3rd defendant, the 3rd defendant is a statutory body established under the Karnataka Panchayath Raj Act 1993. In para-22 of the written statement, the 3rd defendant extracted Section 295 of the Karnataka Panchayath Raj Act 1993 contending that the suit filed by the plaintiff against the 3rd defendant is unsustainable in law and same deserves to be dismissed Under Order 7 Rule 11
- 14 - O.S.7667/2006 CPC. In para-22 of the written statement, the 3rd defendant also extracted Section 286 of the Karnataka Panchayath Raj Act 1993 and stated that the suit is not maintainable. He also stated that the 3rd defendant is a recognized public servant. Without there being any statutory notice, the suit against the 3rd defendant is not sustainable in the eye of law, which is liable to be rejected U/Order 7 Rule 11 CPC.
c) The made defence of the 3rd defendant finds a place in para-23 of the written statement, wherein he contended that Sy.No.86/6 measuring 0-05 guntas of Doddakallasandra village has been gifted under the registered gift deed dated 7.4.2006 by one Bacchappa- the 1st defendant in this case for the purpose of construction and establishment of Government Higher Primary School and the said gift is accepted. The gift deed under which the person, who was in possession of the said portion, surrendered his possession under the gift deed for the purpose of construction of a building to establish the Government Primary school. This also shows that the plaintiff was
- 15 - O.S.7667/2006 not at all in possession of the suit property at any point of time. In para-24 of the written statement, the 2nd defendant also stated with regard to the sanction of the amount by the competent authority to put up school building and praying this Court to dismiss the suit with exemplary costs.
6. The 2nd defendant during the pendency of the suit died on 8.10.2006. Though legal heirs of the 2nd defendant were brought on record, it appears that, legal heirs of the 2nd defendant have not filed any written statement.
7. The record also discloses that during the pendency of the suit, the 1st defendant also died and his legal heirs were brought on record.
8. Based on the above pleadings of the parties, my learned predecessor has framed the following issues:
1. Whether plaintiff proves that she is in absolute possession of the suit schedule property as on the date of the suit?
- 16 - O.S.7667/2006
2. Whether the plaintiff further proves the alleged interference of the defendants?
3. Whether the plaintiff proves that she is entitled for the relief of permanent injunction as sought for?
4. Whether the defendants prove that the suit is not maintainable?
5. Whether defendants prove that the suit is barred under Section 295 of Karnataka Panchayat Raj Act?
6. Whether defendants prove that suit is bad for non-issuance of notice under Section 80 of Code of Civil Procedure?
7. What order or decree?
9. In support of the case of the plaintiff, she herself is examined as PW.1 and got marked Exs.P.1 to P.5. Inspite of giving sufficient time, PW.1 is not turned up for cross-examination and the evidence of the plaintiff is taken as closed.
10. Since the defendants also failed to adduce any evidence, inspite of giving sufficient time and repeated opportunity, their evidence is taken as nil.
- 17 - O.S.7667/2006
11. The record also discloses that inspite of giving sufficient time and repeated opportunities from 7.12.2013 to 24.7.2015, both sides did not turn up and both sides failed to address their arguments and accordingly arguments of both sides taken as not addressed.
12. Perused the records.
13. My findings on the above issues are:
Issue No.1: Negative.
Issue No.2: Negative.
Issue No.3: Negative.
Issue No.4: Partly affirmative.
Issue No.5: Affirmative.
Issue No.6: Affirmative.
Issue No.7: As per the final order
for the following:
REASONS
14. Issue No.1 to 3: Since all these three
issues are interlinked with each other and require common discussion of facts, they are taken together for discussion to avoid repetition of facts.
15. When the plaintiff pleads that she is in absolute possession of the plaint schedule property as on the
- 18 - O.S.7667/2006 date of the suit and when the plaintiff pleads that she is entitled for the relief of permanent injunction, the burden is on the plaintiff to prove issue Nos. 1 and 3. Similarly when the plaintiff pleads the alleged interference of the defendants, the burden is also on the plaintiff to prove issue No.2.
16. In support of the case of the plaintiff, she relied upon the documents Exs.P.1 to P.5. Ex.P.1 is the RTC in respect of Sy.No.86/7 measuring 0-03 guntas for the assessment year 2005-06, wherein the plaintiff claims to be the owner of Sy.No.86/7 and she claims this property i.e. Sy.No.86/7 by way of succession. Admittedly Sy.No.86/7 as shown in Ex.P.1 is not the subject matter of the suit. However the subject matter of the suit is in Sy.No.86/6 measuring 0-05 guntas in respect of which plaintiff has not produced any RTC either to show that she is the owner of plaint schedule property bearing Sy.No.86/6 or to show that she was in continuous possession of Sy.No.86/6 for over a statutory period of 30 years. Even in Column
- 19 - O.S.7667/2006 No.9 of Ex.P.1, the name of the plaintiff finds a place, but in column No.10, it is shown as ancestral.
17. Ex.P.2 is the certified copy of the Tippani in respect of Sy.No.86/6 and 86/7 respectively wherein plaint schedule property is Sy.No.86/6 and same is shown as Government kunte. The plaintiff claims to be in possession of Sy.No.86/6 measuring 0-05 guntas, but the name of the plaintiff does not find a place in Ex.P.2. The plaintiff never shown to be the cultivator nor in possession of said Sy.No.86/6. Ex.P.2 also shows that Sy.No.86/6 is a Sarakari Kunte, but still plaintiff claims Sy.No.86/6 i.e. plaint schedule property as an agricultural land. For the reasons best known to the plaintiff, she has not produced RTC in respect of Sy.No.86/6.
18. Ex.P.3 is the certified copy of the Atlas in respect of Sy.No.86/6 and Sy.No.86/7. Ex.P.4 is the certified copy of the Karnataka Revision Settlement Akarbandh, which is also in respect of Sy.No.86/6 and 86/7 measuring 0-05 guntas and 0-03 guntas
- 20 - O.S.7667/2006 respectively. However, the name of the plaintiff does not find a place in Ex.P.4 either to show that she is the owner of Sy.No.86/6 measuring 0-05 guntas nor to show that she is in possession of Sy.No.86/6.
19. Ex.P.5 is the RTC of Sy.No.86/6, which is the subject matter of this case measuring 0-05 guntas, wherein for the assessment year 2005-06, the 1st defendant Bacchappa is shown to be the kathedar, but column No.12(2) is left blank. Though the plaintiff claims to be the owner in possession and enjoyment of Sy.No.86/6 measuring 0-05 guntas, her name does not find a place in the relevant RTC for the assessment year 2005-06 as per Ex.P.5.
20. Though the plaintiff herself is examined as PW.1 and filed chief examination affidavit, but she did not turn up for cross-examination. As such in my opinion, it is unsafe to relay upon the incomplete chief examination of PW.1. The right of the defendants is denied in not tendering PW.1 for cross-examination. On perusal of material available on record, plaintiff
- 21 - O.S.7667/2006 thoroughly failed to prove issue No.1 to 3. Accordingly I answer issue Nos.1 to 3 in the 'negative'.
21. Issue No.4 and 6: Since issue Nos.4 and 6 are interlinked with each other and require common discussion of facts, they are taken together for discussion to avoid repetition of fact.
22. The defendants taken a defence contending that the suit is not maintainable and also taken a defence contending that the suit is bad for non-issuance of statutory notice under Section 80 of the CPC before instituting this suit.
23. On perusal of the prayer column, the prayer sought itself is peculiar, wherein the plaintiff also sought for the relief of declaration in respect of the suit property and in that event, before filing the suit, the plaintiff is required to comply the statutory requirement of Section 80(1) of CPC. So, in view of all these, the suit against the 3rd defendant is not maintainable and accordingly I answer issue No.4
- 22 - O.S.7667/2006 'partly in the affirmative' and issue No.6 is answered in the 'affirmative'.
24. Issue No.5: The defendant No.3 in the written statement at para-22 also taken the defence contending that the suit is barred under section 295 of the Karnataka Panchayath Raj Act and Under Section 286 of the very same act.
25. On perusal of Section 295 Sub-Section(2) of the Karnataka Panchayath Raj Act 1993, the same reads as follows:
295. Bar of Suits, etc. - (1) xxxxxxx xxx xxxxxxxxxxxxxx.
(2) No suit or other legal proceeding shall lie against a Chief Executive Officer or executive Officer or Secretary or any other officer of the Government or a Grama Panchayat or Taluk Panchayat or Zilla Panchayath or any member, officer, servant or agent of such Grama Panchayat, Taluk Panchayat or Zilla Panchayath acting under its direction in respect of anything done or purporting to have been lawfully done and in good faith under this Act or any rule, regulation, bye-law or order made thereunder except with the previous sanction of the Zilla Panchayat or such officer as the Zilla Panchayat may specify.
- 23 - O.S.7667/2006
26. So, on careful perusal of Section 295(2) of Karnataka Panchayat Raj Act 1993, previous sanction of Zilla Panchyath or such other officer as Zilla Panchayath specify in this regard is necessary.
27. The plaintiff failed to produce any material before the Court to show that she has complied with statutory requirement of section 295(2) of Karnataka Panchayat Raj Act 1993 before filing the suit. She has not issued any statutory notice nor produced any documents in this regard and no document has been produced to show that she has obtained previous sanction of Zilla Panchayath or such officer as the Government Panchayath may specify in this regard. As the said suit is also not maintainable and same is barred under section 295(2) of Karnataka Panchayat Raj act 1993, accordingly, issue No.5 is also answered in the 'affirmative'.
28. Issue No.7: In view of the findings on issue No.1 to 6, I proceed to pass the following:
- 24 - O.S.7667/2006
ORDER
The instant suit filed by the plaintiff against the defendants is hereby dismissed with costs.
(Dictated to the Judgment Writer, computerized by her, then corrected, signed and pronounced by me in Open Court on this the 10th day of August, 2015).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1: Smt.Chandramma.
List of documents marked for the plaintiff:
Ex.P.1: Record of rights and Tenancy Certificate. Ex.P.2: Certified copy of sketch issued by Tahsildar. Ex.P.3: Certified copy of sketch issued by Tahsildar. Ex.P.4: Certified copy of revision Settlement Akarbandh.
Ex.P.5: Record of rights and Tenancy Certificate. List of witnesses examined for the defendants: Nil. List of documents marked for the defendants: Nil.
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.