Bangalore District Court
Smt. M.N.Rama vs The Tahasildar on 25 November, 2017
Form No.9
(Civil) Title
Sheet for
Judgment
in Suits
R.P. 91
PRESENT: SRI S.H.HOSAGOUDAR
B.Sc.,LL.B.,[Spl]
XXVII Additional City Civil Judge.
Dated this the 25th day of November 2017
PLAINTIFFS: 1. Smt. M.N.RAMA
Aged about 44 years,
W/o Sri K.Manjunatha Sastry
2. Sri K.MANJUNAATHA SASTRY
Aged about 51 years,
S/o Late K.S.Krishna Sastry,
Both are Residing at:- Apartment
No.1-D, 1st Floor, "MARUTHI
MANSION",
"Maruthi Mahalakshmi Mansion
Apartments,
No.10-6-1 & 10-2-6, 1st Cross
Road, Saraswathipuram,
Nandini Layout,
BANGALORE-560 096.
[By Sri N.G.Sreedhar, Advocate]
/v e r s u s/
DEFENDANTS: 1. The Tahasildar,
Bangalore North (Additional)
Taluk, Yelahanka,
BANGALORE.
2. The Principal Secretary,
The Government of Karnataka,
Revenue Department,
M.S.Building,
2 CT0028_O.S._4651_2010_Judgment_ .
Ambedkar Veedhi,
BANGALORE-560 001.
[By Smt. Sunitha H.Singh, Advocate]
Date of institution of the : 8/7/2010
suit
Nature of the suit : For Injunction
Date of commencement of : 3/1/2011
recording of the evidence
Date on which the : 25/11/2017
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
7 4 17
(S.H. Hosagoudar)
XXVII ACCJ: B'LORE.
Plaintiffs filed this suit against defendants for the
relief of permanent injunction restraining the
defendants or their officials or their agents from
interfering with the plaintiff's peaceful possession and
enjoyment of the 'B' schedule property and also from
dispossessing the plaintiffs from the suit 'B' schedule
property or any part thereof.
3 CT0028_O.S._4651_2010_Judgment_ .
2. In brief the plaintiff's case are as under:
That the plaintiffs are the owners of suit 'B'
schedule property which is situated in the first floor of
'A' schedule property. The plaintiffs have purchased
the 'B' schedule property from one B.N.Swamy
represented by his GPA holder M/s Jagan Associates
for valuable consideration under the registered sale
deed dated 29/8/2007. That the then Government of
Mysore way back in the year 1966 by due deliberation
in respect of the land bearing sy.no.1 new no.145 of
Jarakabande Kaval village, Yelahanka Hobli,
Bangalore North taluk, measuring total extent of 73
acres 5 guntas decided to dispose the same in favour
of various individuals for assessed upset price. In the
course of the same, the larger extent of land
measuring 2 acres 30 guntas comprehending 'A'
schedule property herein has been granted in favour
of one Annaiah under Order dated 16/2/1967. The
revenue authorities pursuant to the aforesaid order
passed by the Government of Mysore have duly
4 CT0028_O.S._4651_2010_Judgment_ .
mutated their revenue records in favour of said Sri
Annaiah in respect of said land comprehending 'A'
schedule property. Thereafter, the said owner Sri
Annaiah way back during the year 1970 sold the said
extent of property in favour of one W.H.Gopal for
valuable consideration under registered sale deed
dated 23/2/1970. Pursuant to which revenue records
of the larger extent of land duly mutated in favour of
said W.H.Gopal in the office of revenue authorities.
The said W.H.Gopal in turn sold the land
comprehending 'A' schedule property to one
M.R.Prakash for a valuable consideration vide sale
deed dated 11/8/1972 in favour of one M.R.Prakash
for valuable consideration. The said M.R.Prakash has
obtained conversion sanctioned certificate dated
1/9/1979 issued by the office of the Tahasildar,
thereby certifying the alienation of the land
comprehending 'A' schedule property from agriculture
purpose to non-agriculture residential utility. The said
M.R.Prakash has executed and registered GPA in
5 CT0028_O.S._4651_2010_Judgment_ .
favour of one B.M.Narasimhamurthy thereby
empowering him inter alia to do all acts things and
deeds on his behalf. The registered GPA holder
B.M.Narasimhamurthy acting upon the powers
conferred to him by his principal M.R.Prakash sold
the land measuring (103.71 feet + 127.4 feet) /2 X (64
feet + 67.2 feet) / 2 as one portion and another
portion of the same measurement were sold to
common purchaser namely B.N.Swamy. B.N.Swamy
has been compositely developed two portions of
property. Thereafter, B.N.Swamy along with his
registered GPA holder i.e., M/s Jagan Associates have
formulated a development scheme so as to put up
multistoried dwelling units i.e., the 'A' schedule
property herein pursuant to which they have
approached the Bangalore Mahanagara Palike which
authority has issued sanctioned plan bearing
L.P.No.1026/2005-06. The plaintiffs have purchased
'B' schedule property in 'A' schedule property and they
are in lawful possession and enjoyment of the same
6 CT0028_O.S._4651_2010_Judgment_ .
since from the date of purchase. Defendant no.1 has
initiated proceedings under Section 39 of the
Karnataka Land Revenue Act against plaintiff's
builder i.e., M/s Jagan Associates in respect of 'A'
schedule property and issued notice dated 4/8/2009
to the said builder against which the builder has duly
replied. The said notice which has issued by first
defendant contemplates that land comprising the 'A'
schedule property belongs to Government of
Karnataka and as such they are empowered to take
action under the said Act. The legal right accrued
upon plaintiffs in respect of suit schedule property is
legal and valid. The defendant no.1 without
considering reply letters of the builder has passed an
order of dispossession vide order dated 11/9/2009.
Immediately the said builder vide his letter dated
6/11/2009 has made representation to the first
defendant clarifying him that his notice dated
4/8/2009 has been duly replied with relevant
documents. However, first defendant has not
7 CT0028_O.S._4651_2010_Judgment_ .
considered the impugned order passed by him in the
light of replies given by the plaintiff's builder and
hence an appeal has been preferred under Section
49(a) of Land Revenue Act which remedy however is
not alternative efficacious remedy whereunder
substantive rights of the parties will be adjudicated
and it is this court alone which can adjudicate rights
of the parties and revenue authorities are bound by
that order. The plaintiffs are in possession of 'B'
schedule property more than 30 years continuously,
openly, exclusively by the predecessor in title right
since from 1966 upto the date i.e., 4/8/2009 on
which date first defendant falsely alleged that land
comprising 'A' schedule property belongs to
Government of Karnataka. The defendants have no
right over the suit schedule property and now they are
trying to interfere with the plaintiff's peaceful
possession and enjoyment over 'B' schedule property
and also trying to dispossess the plaintiffs from the 'B'
schedule property. Hence this suit.
8 CT0028_O.S._4651_2010_Judgment_ .
3. In response to the suit summons issued by
the Court, defendants appeared through their
Government Advocate and filed written statement. In
brief the contents of the written statement filed by the
defendants are as under:
The suit of the plaintiffs are not maintainable
either in law or on facts. The suit schedule property
viz., sy.no. 1 of Jarakabande Kaval village, Yelahanka,
Bangalore north taluk earlier totally measuring 519
acres and 37 guntas. Though it is phoded after phodi,
survey number was given as new no. 145 which
measures 426 acres 36 guntas at present. Whatever
alienation that have taken place in respect of survey
no.145 they do not affect survey no.1 measuring 21
guntas as shown in the akarband at present. It may
be true that some portion of survey no.145 was
purchased by different purchasers as alleged by the
plaintiff. However, their purchase was only in respect
of portion of sy.no.145 and they did not purchase any
portion of sy.no.1 muchless 9 guntas in sy.no.1.
9 CT0028_O.S._4651_2010_Judgment_ .
Having purchased the portion of sy.no.145 in the
year 2007, M/s Jagan Associates illegally encroached
into sy.no.1 to the extent of 9 guntas and built their
apartment. As such this apartment is standing
illegally on sy.No.1 to the extent of 9 guntas. These
defendants are entitled to remove that part of the
apartment which is built by encroaching into sy.no.1
to the extent of 9 guntas. The apartment including its
compound has been built encroaching the
Government land on an area measuring 9 guntas in
sy.no.1 and certain portion of the building in
sy.no.145 and as such encroached part of the building
is liable to be removed. The sale transaction between
plaintiffs and M/s Jagan Associates and his
predecessor in title does not bind on these defendants
and sale was not in respect of part of the land bearing
sy.no.1. M/s Jagan Associates did not have any title
over any piece of land in sy.no.1 and they constructed
apartment by encroaching 9 guntas in sy.No.1.
10 CT0028_O.S._4651_2010_Judgment_ .
It is submitted that M/s Jagan Associates have
built an apartment recently in the year 2007 and it is
only since 2007 that plaintiffs and others have been in
illegal possession of the apartment. Prior to 2007,
these plaintiffs were not in picture at all. Since builder
of the plaintiffs have encroached the property belongs
to Government and therefore question of plaintiffs
becoming owner by doctrine of adverse possession
does not arise at all. Plaintiffs are not in lawful
possession and enjoyment of the 'B' schedule property
and hence plaintiffs are not entitled for the relief of
permanent injunction as sought for against
defendants. On these grounds, defendants prays for
dismissal of the suit.
4. On the basis of the pleadings of the parties,
my predecessor in the office has framed following
issues:
(1) Whether the plaintiffs prove their
lawful possession and enjoyment of
the suit schedule B flat so described
in the plaint as on the date of the
suit?
11 CT0028_O.S._4651_2010_Judgment_ .
(2) If so, whether the plaintiffs further
prove the alleged interference into
their peaceful possession and
enjoyment of the suit schedule B
property by the defendants as
alleged in the plaint?
(3) Whether the plaintiffs are entitled for
the permanent injunction as prayed?
(4) What decree or order?
5. The plaintiff no.2 is examined as PW.1 and
the documents at Ex.P1 to Ex.P6 have been marked.
On the other hand Tahasildar, Bangalore North
(Additional) is examined as DW.1 and Surveyors are
examined as DWs. 2 and 3 and documents at Ex.D1
and Ex.D2 have been marked.
6. In O.S.No.4650/2010, Court Commissioner
has been examined as CW.1 and got marked Ex.C1
and Ex.C2 and at the request of both the counsels,
Commissioner Report and evidence of the
Commissioner will be considered in this case also.
Further, advocate for plaintiffs filed Memo stating that
evidence given by Commissioner i.e., CW.1 both oral
12 CT0028_O.S._4651_2010_Judgment_ .
and documentary evidence in O.S.No.4650/2010 is
hereby adopted by the plaintiff and requested to
consider the evidence of Court Commissioner adduced
in O.S.No.4650/2010. Hence with consent of both the
side, evidence given by the Court Commission in
O.S.4650/2010 will be considered in this case.
Further, advocate for plaintiff also requested to
consider Ex.P8 to Ex.P21 produced in O.S.4650/2010
in this case also. Other side has no objection to
consider the said documents in this case. Further,
advocate for defendants submits that defendants have
produced copy of the notice and order passed by the
Tahasildar in O.S.No.4650/2010 which are marked as
Ex.D3 and Ex.D4 and requested to consider the same
in this case also. Other side has no objection. Hence
Ex.D3 and Ex.D4 will be considered in this case also.
7. I have heard the arguments on both sides
and perused the entire records of the case. During the
course of the argument, learned counsel for the
plaintiffs has relied upon following decisions:
13 CT0028_O.S._4651_2010_Judgment_ .
1. 2014 SAR (CIVIL) 33; 2014 SAR
(CIVIL) 185;
2. ILR 1999 KAR 301; and ILR 2000 KAR
4134
8. Per contra, learned Special Government
counsel for the defendants has relied upon following
decisions:
1. AIR 2008 SUPREME COURT 2033;
2. AIR 2010 SUPREME COURT 744;
3. (2010) 5 SUPREME COURT CASES 203
4. ILR 1996 KAR 715
9. My findings on the above issues are as
under:
Issue No. 1) ............ In the negative;
Issue No. 2) ............ In the negative;
Issue No. 3) ............ In the negative;
Issue No. 4) ............ As per final order for the
following:
10. ISSUE NO.1: It is the case of the plaintiffs
that they are the owners and lawful possession of 'B'
schedule property having purchased the same from
14 CT0028_O.S._4651_2010_Judgment_ .
their vendor under registered sale deed dated
29/8/2007 and since from the date of purchase they
are in lawful possession and enjoyment of the 'B'
schedule property. Further it is the case of the
plaintiffs that katha has changed in their name and
they are paying tax in respect of 'B' schedule property.
Further it is the case of the plaintiffs that defendants
are trying to interfere with the plaintiff's peaceful
possession and enjoyment over 'B' schedule property
and also trying to dispossess plaintiffs from the 'B'
schedule property without any justification. Further it
is the case of the plaintiffs that defendant no.1
without considering the letters of the builders of the
plaintiff has passed order dated 11/9/2009 for
dispossessing the plaintiff and the said order is not
legal and not binding on the plaintiffs. Further it is
the case of the plaintiffs that defendants have no right
over the 'A' schedule property.
15 CT0028_O.S._4651_2010_Judgment_ .
11. In this case defendants appeared through
their counsel and filed written statement denying the
case of plaintiffs. Defendants contended that sy.no.1
of Jarakabande Kaval village, Yelahanka, Bangalore
North taluk earlier totally measuring 519 acres and 37
guntas and though it is phoded after phodi, survey
number was given a new number as 145 which
measures 426 acres 36 guntas at present. Defendants
further contended that it may be true that some
portion of sy.no.145 was purchased by different
purchasers as alleged by the plaintiffs, however their
purchases was only in respect of portion of sy.no.145
and they did not purchase any portion of sy.no.1
muchless 9 guntas in sy.no.1. Further defendants
contended that M/s Jagan Associates illegally
encroached into sy.no.1 to the extent of 9 guntas and
built their apartment and as such the apartment
wherein plaintiffs are residing in one flat is standing
illegally on sy.no.1 to the extent of 9 guntas. Since 9
guntas of land has been encroached by the builder of
16 CT0028_O.S._4651_2010_Judgment_ .
M/s Jagan Associates illegally the defendants are
entitled to remove that part of the apartment. Further
defendants contended that plaintiffs are not in lawful
possession and enjoyment of the 'B' schedule
property. Further, defendants contended that 'A'
schedule property has been constructed in sy.no.1 by
encroaching 9 guntas of Government land and hence
plaintiffs are not in lawful possession and enjoyment
of the 'B' schedule property.
12. In this case plaintiff no.2 is examined
himself as PW.1. He filed affidavit evidence in lieu of
his examination in chief. In his examination in chief,
he reiterated the plaint averments. He produced in all
6 documents which are marked as Ex.P1 to Ex.P6 and
closed their side of evidence. On the other hand, on
behalf of defendants, the Tahasildar, Bangalore North
is examined as DW.1 and Surveyors are examined as
DWs. 2 and 3 and got marked two documents as per
Ex.D1 and Ex.D2 and closed their side of evidence.
17 CT0028_O.S._4651_2010_Judgment_ .
13. In O.S.No.4650/2010 Surveyor is appointed
as Court Commissioner for making local inspection
and to give report. Accordingly, Court Commissioner
visited the spot and prepared report and sketch and
submitted the same to the Court. In this case, Court
Commissioner is examined as CW.1 and got marked
Commissioner Report and Sketch as Ex.C1 and
Ex.C2.
14. I have perused entire evidence on record. In
this case, there is no serious dispute that plaintiffs
have purchased 'B' schedule property from the GPA
holder of M/s Jagan Associates under registered sale
deed dated 29/8/2007. It is also admitted fact that
M/s Jagan Associates have constructed apartment in
'A' schedule property. The 'B' schedule property is one
of the flat in 'A' schedule property. Defendants
contended that M/s Jagan Associates have
constructed apartment in 'A' schedule property by
encroaching 9 guntas of Government land in sy.no.1
18 CT0028_O.S._4651_2010_Judgment_ .
and hence entire apartment has been constructed
illegally and hence possession of the plaintiffs over 'B'
schedule property is not legal and plaintiffs are in
illegal possession and enjoyment of the same.
15. In this case, plaintiff no.2 examined himself
as PW.1. He produced 6 documents which are marked
as Ex.P1 to Ex.P6. Ex.P1 is the certified copy of the
sale deed dated 29/8/2007; Ex.P2 and Ex.P3 are
khata certificate and khata extracts; Ex.P4 is the tax
paid receipt; Ex.P5 and 6 are the electricity bills with
receipt.
16. Defendants examined three witnesses as
DWs. 1 to 3 and got marked 2 documents which are
marked as Ex.D1 and Ex.D2. Ex.D1 is the certified
copy of the Akarband of sy.no.1 of Jarakabande Kaval
village; Ex.D2 is the survey sketch of Jarakabande
Kaval village.
17. Court Commissioner is examined as CW.1.
She produced Commissioner Report and Sketch which
19 CT0028_O.S._4651_2010_Judgment_ .
are marked as Ex.C1 and Ex.C2. Court Commissioner
in her evidence she deposed that she visited the spot
and prepared report and sketch and submitted the
same to the Court. In the cross-examination by the
defendants, she stated that at the time of Commission
work, defendants and their counsel were absent. She
further stated that she has measured the property on
the basis of Ex.P15 and she has given report on the
basis of Ex.P15 considering the measurement
mentioned in Ex.P15. She further stated that she has
not seen Ex.D1 and she has not tried to secure Ex.D1
prior to measurement of 'A' schedule property. She
further stated that at the time of measurement of 'A'
schedule property, her husband was present and he
helped to measure the property. It is pertinent to note
that, CW.1 has not at all given valid notice to
defendants prior to execution of commission work.
Further evidence of CW.1 clearly shows that in the
absence of defendants she got measured the
properties that too on the basis of Ex.P15 produced by
20 CT0028_O.S._4651_2010_Judgment_ .
the plaintiff. The evidence of CW.1 also clearly shows
that she has not at all measured entire property of
sy.no.1 and she failed to discharge her duties as a
City Surveyor. Ex.C1 is the report; Ex.C2 is the sketch
prepared by the Court Commissioner. In the report,
Court Commissioner has mentioned that plaintiff has
encroached the property to the extent of 1409-45
square feet. Ex.C1 and Ex.C2 does not clearly shows
that CW.1 has measured the sy.no.1 or sy.no.145 of
Jarakabande Kaval village. The suit schedule property
i.e., sy.no.1 of Jarakabande Kaval village, Yelahanka
Hobli was totally measuring 519 acres and 37 guntas.
Though it is phoded, after phoding, survey number
was given as new number as 145 which measures 426
acres 36 guntas at present.
18. It is pertinent to note that, Ex.D1 is a
Akarband. Whatever alienation that have taken place
in respect of sy.no.145, they do not affect sy.no.1
measuring 21 guntas as shown in Ex.D1. The report
21 CT0028_O.S._4651_2010_Judgment_ .
of the Court Commissioner clearly shows that she has
not at all properly measured disputed property and
not shown exact encroachment made by M/s Jagan
Associates while constructing the apartment. No
doubt, the Commissioner Report discloses that there
is an encroachment by the plaintiff. But, she has
failed to disclose the correct area of encroachment
made by M/s Jagan Associates. The Court
Commissioner without issuing notice to the
defendants or their counsel had visited the spot and
she had measured the property only in presence of
plaintiffs. Further she has prepared sketch as per
Ex.P15 produced by the plaintiffs. Hence, evidence of
Court Commissioner clearly shows that she has not at
all properly conducted commission work and she has
not properly measured the disputed property.
Moreover, she has not given notice to the defendants
prior to execution of commission work. Further she
has not taken Memo of Instructions of defendants for
measurement of the disputed property. Hence,
22 CT0028_O.S._4651_2010_Judgment_ .
commission report is not legal and valid one. Even
though Court Commissioner is a Government servant
she failed to follow the procedure while conducting
commission work. Even she failed to see the records
pertaining to sy.no.1 or sy.no.145 of Jarakabande
Kaval village at the time of executing the commission
work. CW.1 in her cross-examination stated that her
husband has helped her at the time of measurement
of the property. It is pertinent to note that CW.1 is a
responsible officer and she has appointed as a Court
Commissioner by the Court to measure the property
and to submit report, but CW.1 without taking the
assistance of officials of the City Survey Office, she
has taken the assistance of her husband who is
private engineer. It shows that Court Commissioner
was not serious about the execution of commission
warrant. She mechanically measured the property as
per instruction given by the plaintiff that too only after
looking to the Ex.P15 produced by the plaintiff and
given report. The Court Commissioner has not
23 CT0028_O.S._4651_2010_Judgment_ .
properly measured the property and failed to
discharge her duties. Hence Commissioner Report is
very vague and also violation of principles of natural
justice since she has not given any notice to
defendants prior to execution of commission warrant.
19. CW.1 in her cross-examination by the
defendants stated that there was no instruction to her
to issue notice to the defendants. It is pertinent to
note that, it is a basic knowledge that before going to
execute the commission work, the Court
Commissioner ought to have issued notice to both the
parties and ought to have done commission work in
the presence of both the parties. But, CW.1 plead
ignorance that she was no instruction to issue notice
to the defendants. Hence, Commissioner Report is
very vague and same is not in accordance with law
and hence Commissioner Report submitted by CW.1
cannot be accepted.
24 CT0028_O.S._4651_2010_Judgment_ .
20. In this case defendants contended that M/s
Jagan Associates has illegally encroached into sy.no.1
of Government land to an extent of 9 guntas and built
their apartment. In this case, defendants produced
four documents which are marked as Ex.D1 to Ex.D4.
Ex.D1 is the Akarband. It shows that part of 'A'
schedule property to the extent of 9 guntas is situated
in sy.no.1 and which sy.no.1 measures 426 acres and
36 guntas after phodi. Further, from the documents it
is much clear that so far as in sy.no.1 is concerned,
no part of the land has been sold or granted by the
Government at any time to any predecessor of the
plaintiffs.
21. In this case, defendants also produced
survey sketch which is marked as Ex.D2. On perusal
of the same, it clearly shows that M/s Jagan
Associates has encroached 9 guntas of land belongs to
Government and constructed apartment. This Ex.D2
25 CT0028_O.S._4651_2010_Judgment_ .
is prepared by Surveyors attached to Survey
Department.
22. DW.2 and DW.3 are the Surveyors working
in the Survey Department. DW.2 in his evidence
clearly stated that M/s Jagan Associates illegally
encroached into sy.no.1 to the extent of 9 guntas and
built their apartment and as such this apartment is
standing illegally on sy.no.1 to the extent of 9 guntas.
He further stated that he has surveyed the sy.no.1
and he found that compound of apartment has been
built encroaching the government land to an extent of
9 guntas in sy.no.1 and certain portion of the building
is in sy.no.145. He further deposed that as per survey
sketch at sl.no. XIV the encroachment of the M/s
Jagan Associates is described in Ex.D2. I have
perused Ex.D2 produced by defendants and in the
said Ex.D2, encroachment made by M/s Jagan
Associates is described at sl.no.XIV. Hence, from the
evidence of DW.2, it is much clear that M/s Jagan
26 CT0028_O.S._4651_2010_Judgment_ .
Associates has encroached 9 guntas of land in sy.no.1
which is belonging to Government and built up
apartment and plaintiffs have purchased one of the
flat in the said apartment which was constructed by
M/s Jagan Associates by encroaching the Government
land. Under such circumstances, it cannot be said
that plaintiffs are in lawful possession of the 'B'
schedule property.
23. DW.3 also in his evidence clearly stated
that M/s Jagan Associates illegally encroached into
sy.no.1 to the extent of 9 guntas and built their
apartment. He further stated that he has surveyed
sy.no.1 and found that compound of the apartment
has been built encroaching the government land on
an area measuring 9 guntas in sy.no.1 and certain
portion of the building is in sy.no.145. The evidence of
DW.3 also clearly shows that M/s Jagan Associates
has encroached government land to the extent of 9
guntas belongs to government and built apartment.
27 CT0028_O.S._4651_2010_Judgment_ .
Ex.D2 is a survey sketch prepared by DWs. 2 and 3.
DWs. 2 and 3 are the Surveyors working in Survey
Department and they measured the properties and
shown the encroachment in Ex.D2 by the M/s Jagan
Associates and other persons belongs to Government.
24. In the cross-examination, DWs. 2 and 3
denied that M/s Jagan Associates has not at all
encroached any government land. Nothing has been
elicited from the mouth of DWs. 2 and 3 to disbelieve
their evidence. In this case, defendants also produced
notice issued by Tahasildar to the owner of M/s Jagan
Associates under Section 192(a) of Karnataka Land
Revenue Act which is marked as Ex.D3. In Ex.D3,
Tahasildar, Bangalore North taluk clearly mentioned
that M/s Jagan Associates has encroached 9 guntas
of land in sy.no.1 and asked him to produce necessary
documents to prove his ownership over the
encroached area. In this case defendants also
produced order passed by Tahasildar, Bangalore
28 CT0028_O.S._4651_2010_Judgment_ .
North taluk which is marked as Ex.D4. On perusal of
Ex.D4, it clearly shows that learned Tahasildar after
verifying the records has passed an order dated
11/9/2009 holding that owner of M/s Jagan
Associates has encroached 9 guntas of land in sy.no.1
of Jarakabande Kaval village. This Ex.D4 clearly
shows that M/s Jagan Associates has encroached 9
guntas of Government land constructed apartment in
'A' schedule property. The evidence on record shows
that M/s Jagan Associates has filed appeal before
Assistant Commissioner against the order passed by
the Tahasildar which is pending before Assistant
Commissioner. However, on perusal of oral and
documentary evidence produced by the defendants, it
is much clear that M/s Jagan Associates has
encroached 9 guntas of land in sy.no.1 and built the
apartment and plaintiffs have purchased one of the
flat in the said apartment. The said apartment itself is
standing illegally on sy.no.1 to the extent of 9 guntas.
Hence, plaintiffs are not in lawful possession and
29 CT0028_O.S._4651_2010_Judgment_ .
enjoyment of the 'B' schedule property. Ex.D2 is
prepared by DWs.2 and 3 who are surveyors working
in the Department of Survey. I do not find any reasons
to doubt the genuineness of Ex.D2. Further, on the
basis of Ex.D2, the Tahasildar after giving opportunity
to the owner of the M/s Jagan Associates has passed
order as per Ex.D4. This Ex.D4 clearly shows that
M/s Jagan Associates has encroached 9 guntas of
land in sy.no.1 belongs to Government. Tahasildar by
invoking Section 39 of the Karnataka Land Revenue
Act has passed order as per Ex.D4. Hence, from the
evidence on record it is much clear that M/s Jagan
Associates has constructed apartment by encroaching
9 guntas of Government land. The evidence on record
shows that plaintiffs have purchased 'B' schedule
property in 'A' schedule property. However, schedule
property has been illegally built by encroaching into 9
guntas of land in sy.no.1. As such, construction made
by M/s Jagan Associates is not a legal construction.
Further, plaintiffs have not adduced any cogent
30 CT0028_O.S._4651_2010_Judgment_ .
evidence to show that M/s Jagan Associates had title
over any piece of sy.no.1. Further, plaintiffs also failed
to prove that predecessor of the plaintiffs by name
Annaiah, W.H.Gopal, M.R.Prakash, B.N.Swamy have
been in possession of 9 guntas of land in sy.no.1 since
1966 continuously, openly and actually to the
exclusion of the true owner i.e., State of Karnataka.
Hence, plaintiffs have utterly failed to prove the
possession over schedule property. The evidence on
record clearly shows that 9 guntas of land in sy.no.1
absolutely belongs to government and plaintiffs and
M/s Jagan Associates do not have any right, title or
interest in respect of portion of land in sy.no.1. The
plaintiffs are in wrongful possession of his flat i.e., 'B'
schedule property in 'A' schedule property.
25. PW.1 in his evidence deposed that he has
purchased 'B' schedule property and he is in
possession and enjoyment of the said property. But,
evidence on record clearly shows that 'A' schedule
31 CT0028_O.S._4651_2010_Judgment_ .
property was constructed by encroaching government
land to the extent of 9 guntas and plaintiffs have
purchased 'B' schedule property which is situated in
'A' schedule property and hence it cannot be said that
plaintiffs are in lawful possession and enjoyment of
the 'B' schedule property.
26. In this case plaintiffs have not adduced any
cogent evidence on record to show that M/s Jagan
Associates has not encroached 9 guntas of land in
sy.no.1 of Jarakabande Kaval village. The documents
produced by the plaintiffs does not shows that M/s
Jagan Associates has not encroached 9 guntas of land
in sy.no.1. The evidence of PW.1 is also not
corroborated by cogent material to show that
apartment was not constructed in encroached area as
contended by defendants.
27. In this case, Court Commissioner has
appointed during the pendency of the suit for local
inspection and to demarcate the property and to
32 CT0028_O.S._4651_2010_Judgment_ .
submit the report. But, Court Commissioner has not
properly done her commission work. Even though
Commissioner has not properly done her commission
work, the report of the commission also shows that
there is an encroachment to the extent of some
portion by the M/s Jagan Associates. Hence, from the
evidence on record it is much clear that M/s Jagan
Associates has constructed apartment by encroaching
Government land. Under such circumstances, it
cannot be said that plaintiffs who are the owner of 'B'
schedule property in 'A' schedule property is in lawful
possession and enjoyment of the 'B' schedule
property.
28. In this case, plaintiffs have produced
sanction plan with regard to "MARUTHI MANSION"
and "MAHALAKSHMI MANSION" which are marked as
Ex.P20 and Ex.P21 and said documents are marked
subject to objection. Ex.P20 relates to "MARUTHI
MANSION" and Ex.P21 pertaining to "MAHALAKSHMI
33 CT0028_O.S._4651_2010_Judgment_ .
MANSION". Plaintiffs have not examined author of
Ex.P20 and Ex.P21 to prove the contents of the same.
Hence, on the basis of alleged documents i.e., Ex.P20
and Ex.P21 it cannot be said that M/s Jagan
Associates have not encroached Government land.
Hence Ex.P20 and Ex.P21 are not helpful to the
plaintiffs to show that they are in lawful possession of
'B' schedule property.
29. It is the case of the plaintiff that 'A'
schedule property is constructed on property bearing
old no.10/1 and 10/2 situated at 1st cross road,
Saraswathipuram, Nandini Layout, Bangalore. In this
case defendants contended that M/s Jagan Associates
who have constructed apartment namely "Maruthi
Mansion" by encroaching 9 guntas of government land
in sy.no.1. Hence, it is for the plaintiffs to prove that
M/s Jagan Associates has not encroached any
government property and they constructed property in
old property no. 10/1 and 10/2. But in this case
34 CT0028_O.S._4651_2010_Judgment_ .
plaintiffs have not adduced any cogent evidence on
record to show that M/s Jagan Associates has not
encroached government land as contended by
defendants.
30. In this case plaintiffs also not examined the
predecessor of 'A' schedule property to show that M/s
Jagan Associates has constructed apartment on the
property bearing old no.10/1 and 10/2 situated at 1st
cross road, Saraswathipuram, Nandini Layout,
Bangalore. On the other hand, defendants have
adduced cogent evidence to show that M/s Jagan
Associates has encroached 9 guntas of land belongs to
Government and constructed apartment. No doubt
plaintiffs have purchased 'B' schedule property which
is situated in 'A' schedule property from the GPA
holder of M/s Jagan Associates. But, 'A' schedule
property is constructed by encroaching the
government property. Under such circumstances, it
35 CT0028_O.S._4651_2010_Judgment_ .
cannot be said that plaintiffs are in lawful possession
of 'B' schedule property.
31. PW.1 in his cross-examination denied that
'A' schedule property has been constructed on the 9
guntas of government land in sy.no.1. It is pertinent
to note that, PW.1 was not at all present at the time of
construction of apartment by the M/s Jagan
Associates. Plaintiffs have just purchased one flat in
'A' schedule property without verifying the
encroachment made by M/s Jagan Associates in 'A'
schedule property.
32. In this case, even though plaintiffs denied
that 'A' schedule property has been constructed on
the encroached portion but they have not placed any
cogent material to show that 'A' schedule property has
constructed without any encroachment of government
land. Hence, from the evidence of PW.1 it cannot be
said that 'A' schedule property has been constructed
36 CT0028_O.S._4651_2010_Judgment_ .
without encroaching the government land as
contended by defendants.
33. PW.1 in his cross-examination stated that
he has no idea before fixation of boundaries,
compound wall was constructed by the previous
owner Prakash or not and they have not brought to
the notice of the government with regard to the
boundary dispute in respect of 'A' schedule property.
Hence, evidence of PW.1 clearly shows that they have
no knowledge with regard to boundary dispute
pertaining to 'A' schedule property. In this case, there
is a serious dispute with regard to boundary and
encroachment of government property. Plaintiffs have
approached this court seeking equitable relief of
permanent injunction against defendants. Hence, it is
for the plaintiff to prove that he is in lawful possession
of 'B' schedule property and also prove that 'A'
schedule property has not at all constructed by
encroaching government land. But, in this case,
37 CT0028_O.S._4651_2010_Judgment_ .
plaintiffs have not adduced any cogent evidence to
show that 'A' schedule property has not at all
constructed by encroaching government land. The
evidence adduced by the defendants clearly shows
that M/s Jagan Associates have constructed 'A'
schedule property i.e., apartment by encroaching 9
guntas of government land in sy.no.1. Ex.D2 survey
sketch clearly reflects the encroachment made by M/s
Jagan Associates while constructing the apartment.
Hence, from the evidence on record it is much clear
that plaintiffs are not at all in lawful possession of the
'B' schedule property since 'A' schedule property itself
constructed by encroaching 9 guntas of government
land in sy.no.1. Plaintiffs failed to prove issue no.1.
Accordingly, I answer issue no.1 in the negative.
34. ISSUE NO.2: Plaintiffs contended that
defendants are interfering with their peaceful
possession and enjoyment over 'B' schedule property
and trying to dispossess them from the 'B' schedule
38 CT0028_O.S._4651_2010_Judgment_ .
property. While answering issue no.1, it is held that
plaintiffs are not in lawful possession of 'B' schedule
property. The evidence on record clearly shows that
M/s Jagan Associates have constructed apartment
i.e., 'A' schedule property by encroaching 9 guntas of
government land in sy.no.1. Further, evidence on
record clearly shows that Tahasildar has passed
orders as per Ex.D4 by holding that M/s Jagan
Associates has encroached 9 guntas of land in
sy.no.1. From the evidence on record it is much clear
that M/s Jagan Associates by encroaching the
government land to the extent of 9 guntas has
constructed apartment. Defendant no.1 is the public
servant and defendant no.2 is the Government of
Karnataka represented by its Principal Secretary.
Under the provisions of Karnataka Land Revenue Act,
defendants have got every right to pass orders to
remove the encroachment made by any person. In this
case evidence on record clearly shows that 'A'
schedule property has constructed by encroaching 9
39 CT0028_O.S._4651_2010_Judgment_ .
guntas of land in sy.no.1. Accordingly, defendant no.1
has passed order as per Ex.D4. Since defendants
found that after enquiry that 'A' schedule property has
been constructed by encroaching 9 guntas of land in
sy.no.1, defendant no.1 by exercising his powers
conferred under the Land Revenue Act has passed
orders as per Ex.D4. Further, defendant no.1 before
proceed to pass orders, he had issued notice to the
M/s Jagan Associates as per Ex.D3. Hence, act of the
defendants does not amounts to any interference with
the possession and enjoyment of the plaintiffs over the
'B' schedule property since M/s Jagan Associates has
encroached 9 guntas of government land. Plaintiffs
failed to prove alleged interference. Accordingly, I
answer issue no.2 in the negative.
35. ISSUE NO.3: In this case plaintiffs
sought for the relief of permanent injunction
restraining the defendants or their officials from
interfering with their peaceful possession and
40 CT0028_O.S._4651_2010_Judgment_ .
enjoyment of the 'B' schedule property or from
dispossessing the plaintiffs from the suit 'B' schedule
property. While answering issue no.1, it is held that
plaintiffs are not in lawful possession and enjoyment
of the suit schedule property. While answering issue
no.2, it is held that plaintiffs have failed to prove
alleged interference by the defendants. The evidence
on record clearly shows that M/s Jagan Associates by
encroaching the 9 guntas of government land in
sy.no.1 have constructed apartment in 'A' schedule
property. Hence said apartment was constructed in a
encroached portion. Hence, plaintiffs are not in lawful
possession of 'B' schedule property since 'A' schedule
property itself has constructed in an encroached
portion belongs to government. Hence, plaintiffs are
not entitled for the relief of permanent injunction as
sought for. It is also important to note that the suit of
the plaintiffs for bare injunction is not maintainable
without the relief of declaration. When defendants
seriously contending that M/s Jagan Associates has
41 CT0028_O.S._4651_2010_Judgment_ .
constructed apartment in 'A' schedule property by
encroaching 9 guntas of government land in sy.no.1,
under such circumstances plaintiffs ought to have
filed suit for declaration and injunction to prove their
title over the 'A' schedule property. Moreover, evidence
on record clearly shows that 'A' schedule property has
been constructed by encroaching 9 guntas of
government land in sy.no.1. Plaintiffs are not in lawful
possession of suit schedule property. Hence, plaintiffs
are not entitled for the relief of permanent injunction
as sought for against the defendants. The order
passed by defendant no.1 is in accordance with law
under the provisions of Karnataka Land Revenue Act
and he passed said order after holding due enquiry.
The plaintiffs who were in wrongful possession of 'B'
schedule property in 'A' schedule property have no
right to seek equitable relief of permanent injunction
against true owners.
42 CT0028_O.S._4651_2010_Judgment_ .
36. It is pertinent to note that, defendant no.1
has passed order as per Ex.D4 by holding that M/s
Jagan Associates has encroached 9 guntas of
government land in sy.no.1 of Jarakabande Kaval
village. Being aggrieved by the order passed by the
Tahasildar, M/s Jagan Associates has filed appeal
before Assistant Commissioner and said appeal is still
pending. The order passed by the Tahasildar as per
Ex.D4 is not yet cancelled. Ex.D4 clearly shows that
M/s Jagan Associates has encroached 9 guntas of
land in sy.no.1 of Jarakabande Kaval village.
37. It is also important to note that, under the
provisions of Karnataka Land Revenue Act, there is a
bar to file civil suit against the order passed by the
Tahasildar. It is held in a decision reported in ILR
1996 KAR 715 wherein Hon'ble High Court of
Karnataka held as under:
"KARNATAKA LAND REVENUE
AC, 1964 (Karnataka Act No.12 of
1964) - Sections 49 & 63 - Order by
43 CT0028_O.S._4651_2010_Judgment_ .
Tahsildar appeal under Section 49(a)
- Jurisdiction of Civil Courts :
express bar under Section 63 unless
all remedies under Act exhausted
within limitation - Section 9 CPC not
applicable."
38. From the above said decision, it is much
clear that the jurisdiction of the Civil Courts to
entertain any suits or other proceedings against the
State Government on account of any act or omission
of the State Government or any Revenue Officer is
barred under Section 63 of the Act.
39. In this case, defendant no.1 by invoking
Section 39 of the Land Revenue Act has passed order
as per Ex.D4. After passing the said order, plaintiffs
have filed this suit, but there is a bar under Section
63 of the Karnataka Land Revenue Act to file Civil Suit
before the Civil Court. Section 63 of the Land Revenue
Act is an express bar to file the suit unless the
plaintiffs have exhausted remedies provided under Act
by filing appeal. When there is an express bar in the
Act, section 9 of CPC will not come into aid of the
44 CT0028_O.S._4651_2010_Judgment_ .
plaintiffs. No doubt in this case, plaintiffs have filed
appeal before Assistant Commissioner against the
order passed by Tahasildar but said appeal is still
pending before Assistant Commissioner. The plaintiffs
without exhausting all remedies as provided under the
Karnataka Land Revenue Act has filed this suit. As
already stated there is a express bar under Section 63
of the Karnataka Land Revenue Act to file the suit
before the Civil Court. Hence, suit of the plaintiff itself
is not maintainable. When suit itself is not
maintainable the plaintiff is not entitled for the relief
of permanent injunction as sought for. Even
otherwise, plaintiff has failed to prove his lawful
possession over the suit schedule property. The
evidence on record clearly shows that M/s Jagan
Associates have constructed apartment in the 'A'
schedule property by encroaching 9 guntas of land in
sy.no.1 of Jarakabande Kaval village. Hence it is a
clear case of encroachment. When predecessor of the
plaintiffs have encroached government land, the
45 CT0028_O.S._4651_2010_Judgment_ .
plaintiffs are not entitled for the equitable relief of
permanent injunction as sought for. Therefore,
plaintiffs are not entitled for the relief of permanent
injunction against the defendants. Further plaintiffs
are not entitled for any relief. Plaintiffs failed to prove
issue no.3. Accordingly, I answer issue no.3 in the
negative.
40. ISSUE NO.4: From my above discussions
and reasoning on issues No.1 to 3, the suit of the
plaintiffs is liable to be dismissed. In the result, I pass
the following:
The suit of the plaintiffs is hereby
dismissed.
No order as to costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer, transcribed and computerised by her, Script corrected, signed and then pronounced by me, in the Open Court on this the 25th day of November 2017.] [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
46 CT0028_O.S._4651_2010_Judgment_ .
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 K.Manjunatha Sastry
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 Ranganath
DW.2 Shivanna
DW.3 Srikanta
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P 1 Certified copy of the sale deed dated 29/8/2007 Ex.P 2 And Khata certificate and Khata extracts Ex.P 3 Ex.P 4 Tax paid receipt Ex.P 5 And Electricity bills with receipt Ex.P 6
4. List of the documents marked for the defendants:
Ex.D 1 Certified copy of the Akarband of Sy.No.1 of Jarakabandakaval village Ex.D 2 Survey Sketch of Jarakabandakaval village [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
47 CT0028_O.S._4651_2010_Judgment_ .
...Judgment pronounced in the Open Court....
(Vide separate detailed judgment) [S.H. HOSAGOUDAR] XXVII Additional City Civil Judge.
BANGALORE.
50 CT0028_O.S._4651_2010_Judgment_ .
2 O.S. 1487/2006