Bangalore District Court
Sri.Chikkegowda vs ) The Commissioner on 5 February, 2021
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for Judgment
in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY - (CCCH.11)
Dated this the 5th day of February 2021
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.No.9298/2014
PLAINTIFF SRI.CHIKKEGOWDA,
S/o.late Sri.Kallu Maligappa,
Aged about 56 years,
R/at No.1/A, Syndicate Bank Colony,
End-Right, Magadi Road,
Housing Board, Bengaluru -560 079
[By Pleader Sri.Nagaiah]
/Vs/
DEFENDANTS 1) THE COMMISSIONER
Bruhat Bengaluru Mahanagara Palike,
Bengaluru
[By Pleader Sri.Prakasha]
2) THE ADDITIONAL DIRECTOR
GENERAL OF POLICE,
Bengaluru Metropolitan Task Force,
H.O. BBMP, Bengaluru
[By Pleader Sri.Prakash Rao.K- 1st
Addl.Govt.Pleader]
OS.NO.9298/2014
2
Date of Institution of the suit : 01.12.2014
Nature of the Suit : Injunction
Date of commencement of recording
of evidence : 05.04.2016
Date on which the Judgment was
pronounced : 05.02.2021
Year/s Month/s Day/s
Total Duration : 06 02 04
---
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This suit is filed by Plaintiff for permanent injunction restraining Defendants from interfering with suit schedule property and from demolishing the building constructed thereon.
OS.NO.9298/2014 3
2) Plaintiff's case is that he is the absolute owner in possession and enjoyment of suit schedule property, viz., Property bearing No.4, 4 th Main Road, Ranganathapura, Ward No.36, Bengaluru -560 079, measuring East to West : 40 feet and North to South : 45 feet, which came to be purchased by him from Smt.Susheelamma, registered General Power of Attorney holder of Sri.B.H.Srinivasaiah, vide registered Sale Deed dated 20.12.2012. It is stated that khatha of suit schedule property has been transferred in his name in BBMP and up to date tax has been paid to BBMP relating to suit schedule property.
3) It is stated that, at the time of purchasing suit schedule property, there had already been building existing therein. Plaintiff and his family members are living in the building constructed over suit schedule property OS.NO.9298/2014 4
4) It is stated that suit schedule property is part and parcel of Sy.No.65/4A of Saneguruvanahalli Village, in which, Defendant No.1 has no manner of right, title and interest. It is stated that on 25.11.2014 Defendants made attempt to demolish the building constructed in suit schedule property without having recourse to law, contending that it comes within Sy.No.46 of Malagala Village. Defendants have no authority under law to demolish the building constructed in suit schedule property without there being survey of the same in the presence of Plaintiff. Hence, prays for decree.
5) Summonses issued to Defendants were duly served. Defendant No.1 marked appearance through his Counsel. Defendant No.2 marked his appearance through 1st Addl.Gov.Pleader.
6) Defendant No.1, in his written statement, states that suit is not maintainable as no statutory OS.NO.9298/2014 5 notice has been issued stating the cause of action, the relief sought for and the name and place of Plaintiff. Defendant No.1 represents the Government, which is not made as party. Hence, suit is bad for non-joinder of necessary party.
7) It is stated that suit schedule property is part and parcel of Sy.No.46. As per survey report, suit schedule property comes within the limit of Sy.No.46 of Malagala Village, which is known as 'Balaiahana Kere'. Previous vendor of the suit schedule property had no right or title over suit schedule property. Sale Deed executed by previous owner is not lawful and on the basis of that Plaintiff cannot claim right or title over suit schedule property. By misleading Defendant No.1, Plaintiff got khatha in his name and same does not confer ownership or title on him. Identity of the property is in dispute. Defendant No.1, being a statutory authority, is having right to demolish an OS.NO.9298/2014 6 unauthorized construction. Hence, prays for dismissal of the suit.
8) Defendant No.2 has taken similar contentions that have been taken by Defendant No.1 in his written statement.
9) Issues that have been framed by this Court are as follows :
(1) Whether the Plaintiff proves that as on the date of filing of the suit, the Plaintiff is in actual and lawful possession of the suit schedule property?
(2) Whether the Plaintiff proves that Defendants are interfering with the peaceful possession of the suit schedule property by the Plaintiff?
(3) Whether the Plaintiff is entitled for the reliefs sought for?
(4) What Order or Decree? 10) Plaintiff has got examined as PW.1 and got
marked Exs.P.1 to P.25 in support of his case.
Defendant No.1 examined Assistant Executive OS.NO.9298/2014 7 Engineer as DW.1 and got marked Exs.D1 to D.27 to prove his case [Exs.D.1 to D.5 are marked through PW.1]. Defendant No.2 has chosen not to lead any evidence on his behalf.
11) Heard learned Counsel for Plaintiff and Defendants No.1 and 2. Perused the records.
12) My findings on the above issues are as follows :
Issue No.1 - In Affirmative;
Issue No.2 - In Affirmative;
Issue No.3 - In Affirmative;
Issue No.4 - As per final order, for the following :
REASONS
13) Issues No.1 to 3 : By this suit, Plaintiff has sought for permanent injunction against Defendants restraining them from interfering with suit schedule property and from demolishing the building constructed thereon.
OS.NO.9298/2014 8
14) 1st Defendant's contention is that statutory notice as required under Section 482 of the Karnataka Municipal Corporation Act, 1976 has not been issued to Defendant No.1 before institution of suit and suit has been instituted without making the Government as party. Hence, suit is liable to be dismissed.
15) Section 482 of the Karnataka Municipal Corporation Act, 1976 provides that no suit shall be instituted against municipal authority, officers and agents without there being issued two months' prior notice. It is worthwhile to read Section 482 of the Karnataka Municipal Corporation Act, 1976, which reads thus :
"482. Institution of suits against municipal authority, officers and agents. - (1) No suit shall be instituted against the Corporation or any municipal authority, Corporation Officer or servant, or any person acting under the direction of the same, in respect of any act done in pursuance or in execution, or intended execution of this Act or any rule, bye-law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act or any rule, bye- law, regulation or order made under it until OS.NO.9298/2014 9 the expiration of [Sixty days] after a notice has been delivered or left at the Corporation office or at the place of abode of such officer, servant or person, stating the cause of action, the relief sought, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.
(1-A) A suit to obtain an urgent or immediate relief against the Corporation or any municipal authority, Corporation Officer or servant in respect of any act done or purporting to be done by such officer or servant in his official capacity, may be instituted with the leave of the Court, without serving any notice as required by sub-section (1), but the Court shall not grant relief in the suit, whether interim or otherwise except after giving to the Corporation Officer or servant, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied after hearing the parties that no urgent or immediate relief need be granted in the suit, return the plaint, for presentation to it after complying with the requirements of sub-section (1).
(2) xx xx xx (3) xx xx xx (4) xx xx xx (5) xx xx xx "
16) A bare reading of Section 482(1) makes it clear that, before institution of the suit, it is mandatory to issue two months' prior notice to OS.NO.9298/2014 10 municipal authority in respect of the act done under the Karnataka Municipal Corporation Act, 1976, stating the cause of action, the relief sought and the name and place of abode of Plaintiff. Sub- section (1A) of Section 482 further makes it clear that such suit may be instituted with the leave of the Court without serving notice as required by sub-section (1) where a suit in which an urgent or immediate relief is sought for.
17) Above aspect of the matter has been dealt in Devi Singh vs. Municipal Corporation, Hyderabad, [(1973) 4 SCC 66]. The Hon'ble Supreme Court, while dealing with Section 477 of the Hyderabad Municipal Corporation Act, 1950, which is akin to Section 482 of the Karnataka Municipal Corporation Act, 1976, was pleased to hold that "The question whether a notice under Section 477 was necessary has to be decided on OS.NO.9298/2014 11 the averments made". Para-12 of the judgment reads as follows :
"12. We may dispose of the legal points. As regards the requirement of a notice under Section 447 of the Corporation Act, that section provides that no suit shall be instituted against the Corporation, Commissioner, municipal officer or servant in respect of any act done or purported to be done in pursuance of execution or intended execution of the Act, or in respect of any alleged neglect or default in the execution of the Act, until the expiration of one month next after a notice had been served on the Corporation or officer concerned in the manner indicated in the section. This is what the High Court said on the point :
" It cannot be gainsaid that the acts complained of by the plaintiff were acts done by the Corporation in pursuance of its powers and duties under the Act. Under Section 59 of the Act the corporation is empowered to make provision for public parks, gardens, playgrounds and recreation grounds, while under Section 56 of the Act the Corporation is empowered to remove obstructions upon public places."
The question whether a notice under the aforesaid section was necessary has to be decided on the averments made. It was never the case of the plaintiff that the defendant Corporation was acting or purported to act under the provisions of the Act. The dispute raised related to the ownership of the property as also its possession. We have not been shown any provision in the Corporation Act, by which the Corporation or its officers were entitled to either take possession of another person's property or retain its possession OS.NO.9298/2014 12 or dispossess a person who is already in possession without having recourse to the ordinary remedies under the law. We are wholly unable to understand how Section 56 of the Corporation Act could be of any avail to the Corporation in the matter of notice under Section 447 of the Act. The whole controversy between the parties centered on the question whether the Bazaar was the property of the plaintiff and was in his possession at the time of the institution of the suit. That had nothing to do with any act done or purported to be done in pursuance of execution or intended execution of any provision of the Corporation Act. The learned counsel for the Corporation has not been able to show how the suit as laid and framed attracted the applicability of Section 447 of the Corporation Act. We would, accordingly, hold that under the aforesaid section no notice was necessary before the institution of the suit."
18) Instant suit has been filed for permanent injunction against Defendants based on his title and possession over suit schedule property, contending that Defendants made an attempt to demolish the building constructed over suit schedule property without having recourse to law. It is not at all the case of Plaintiff that Defendant No.1 was acting or OS.NO.9298/2014 13 purported to act under the provisions of the Karnataka Municipal Corporation Act, 1976.
19) Moreover, Bruhat Bangalore Mahanagara Palike [BBMP] is a Body Corporate. Commissioner appointed by the Government is a whole time officer of the Corporation. He is paid out of the Corporation fund. He shall be vested with executive power subject to limitations as envisaged under the Karnataka Municipal Corporation Act, 1976. He has been rightly made as party in this suit. Plaintiff is claiming to be the owner in possession of suit schedule property. In order to protect his interest in suit schedule property against the alleged interference of Defendant No.1, Government is not at all proper or necessary party to this suit and issue of notice under Section 482 is not all required.
20) Plaintiff contends that he purchased suit schedule property vide registered Sale Deed dated 20.12.2012. Khatha of suit schedule property got OS.NO.9298/2014 14 transferred in his name in BBMP. He has paid up to date tax. Defendants, having no manner of right, title and interest, made an attempt to demolish the building constructed in suit schedule property.
21) On the contrary, Defendant No.1 contends that suit schedule property comes within Sy.No.46 of Malagala Village, which is known as 'Balaiahana Kere'. Defendants are having authority to demolish an unauthorized construction.
22) Plaintiff has deposed as PW.1 reiterating the plaint averments. Documents marked on behalf of Plaintiff are at Exs.P.1 to P.25. Ex.P.1 is original Sale Deed dated 20.12.2012 executed by Smt. Susheelamma as GPA Holder of Sri.B.H.Srinivasaiah in favour of Plaintiff relating to suit schedule property. Ex.P.1 is duly registered before the Sub- Registrar, Peenya, Bangalore as per Document No.8282/12-13. Ex.P.2 and Ex.P.25 are Khatha Extract dated 26.04.2014 and Khatha Certificate OS.NO.9298/2014 15 dated 26.04.2014 in respect of suit schedule property issued by BBMP in the name of Plaintiff.
23) Ex.P.3 is encumbrance certificate for the period from 25.05.2004 to 05.06.2014 which records the sale transaction of Plaintiff relating to suit schedule property. Ex.P.4 is tax paid receipt for having paid tax to BBMP by Plaintiff for the period 2014-2015. Ex.P.5 is Certificate dated 11.06.2013 for having transferred the khatha of suit schedule property in the name of Plaintiff on the basis of sale deed. Ex.P.6 is receipt for having paid fees to BBMP for transferring khatha in the name of Plaintiff. Ex.P.7 is Original GPA executed by Sri.B.H.Srinivasaiah in favour of Smt.Susheelamma, who executed Sale Deed in favour of Plaintiff. Ex.P.8 is Certificate dated 17.01.1999 issued by BMP certifying that suit schedule property stands in the name of Smt.Susheelamma. Ex.P.9 is Khatha Book, which stands in the name of Smt.Susheelamma.
OS.NO.9298/2014 16 Exs.P.10 to P.18 are tax paid receipts for the period from 1996-97 to 2013-2014 issued in the name of Smt.Susheelamma. Ex.P.19 is Demand Notice issued by BBMP to Plaintiff. Ex.P.20 is photograph (5 in numbers) and Ex.P.21 is CD. Exs.P.22 and P.23 are Electricity Bills. Ex.P.24 is sanctioned plan.
24) On the contrary, Assistant Executive Engineer of Defendant No.1 has deposed as DW.1 reiterating the written statement averments. Documents marked on behalf of Defendant No.1 are at Exs.D.1 to D.27. Ex.D.1 is Record of Rights in respect of Sy.No.46 of Malagala Village, which states as Government Kere. Ex.D.2 is Letter dated 10/28.11.2014 issued by BBMP to Deputy Superintendent of Police stating the names of alleged encroacher in Sy.No.46. Ex.D.3 is charge- sheet. Ex.D.4 is Appeal filed by BBMP before Regional Commissioner. Ex.D.5 is charge-sheet filed in Crime No.128/2013 against Plaintiff, who is OS.NO.9298/2014 17 shown as accused No.10, for the offence punishable under Sections 192(A) and 192(B) of Karnataka Land Revenue Act. Ex.D.6 is First Information Report registered on the complaint dated 18.12.2013 filed by one Sri.R.Prakash. Ex.D.7 is Letter dated 27.08.2013 addressed by Sri.R.Prakash to BBMP. Ex.D.8 is spot panchanama dated 24.11.2014 drawn by the Police in Crime No.128/2013. Ex.P.9 is Police Notice dated 28.01.2014 addressed by the Dy. Suprintendent of Police to Revenue Inspector for furnishing supporting documents. Ex.D.10 is report submitted by Village Accountant. Ex.D.11 is statement given by Revenue Inspector. Ex.D.12 is Record of Rights in respect of Sy.No.46 of Malagala Village. Ex.D.13 is sketch of Sy.No.46. Exs.D.14 to D.19, D.25 and D.26 are survey tippani relating to Sy.No.46 of Malagala Village. Ex.D.20 is survey sketch of Sy.No.46. Ex.D.21 is reminder letter dated 28.10.2014 issued by Dy. Superintendent of Police, Bangalore Metropolitan Task Force, Bengaluru to OS.NO.9298/2014 18 Tahasildar. Ex.D.22 is letter dated 31.10.2014 issued by Tahsildar to Dy. Superintendent of Police. Ex.D.23 is letter of Surveyor, Bengaluru North Taluk. Ex.D.24 is report of Revenue Inspector. Ex.D.27 is letter addressed by BBMP to Deputy Superintendent of Police stating the names and address of encroacher of Sy. No.46.
25) From Exs.P.8, P.10 to P.18, it is clear that the name of predecessor in interest was entered in BBMP records relating to suit schedule property and she was paying property tax to BBMP. Exs.P.1, P.2, P.5, P.6, P.24 and P.25 make it clear that Plaintiff has purchased the suit schedule property from its owner on 20.12.2012 vide registered Sale Deed. After purchasing the suit schedule property, his name has been entered in BBMP records relating to suit schedule property and he has been paying tax to BBMP.
OS.NO.9298/2014 19
26) Purchasing of suit schedule property by Plaintiff; entering the name of Plaintiff in BBMP relating to suit schedule property; payment of tax to BBMP by Plaintiff and occupation of Plaintiff and his family members in the building constructed over suit schedule property, are not in dispute. These facts are part of the pleadings of respective parties.
27) Further, above facts have also been admitted by DW.1 in his oral evidence. DW.1, in his cross-examination, in O.S.No.8913/2014 which has been adopted in this suit by Plaintiff, deposes that Plaintiff is in possession of suit schedule property and there is a building in suit schedule property. It is deposed that Defendant No.1 has issued khatha in respect of suit schedule property and collected tax from Plaintiff every year. Relevant part of cross- examination of DW.1 is extracted as under :
"ನನನನ ಈ ಕಕಕಸನ ಬಗಕಗ ಸಸಪಪರರವನಗ ತಳದನಕಕಕಸಡಕ ಸನಕಕಯನನನ ನಕಡನತತದಕದಕನಕ. ದನವನ ಆಸತಯ ಸನಸಧಕನತಕಯಲಲ ವನದ ಇದನದರಕ. ದನವನ ಆಸತಯಲಲ ವನದಯ ಕಟಟಡ ಇದಕ. ವನದ ಸದರ ಕಟಟಡ ಕಟಟಲನ 1 ನಕಕ ಪಪತವನದಯಸದ ಪರವನನಗಕಯನನನ ಪಡಕದನಕಕಕಸಡನ OS.NO.9298/2014 20 ಮಸಜಕರನತ ನಕಕಕಯನನನ ಪಡಕದನಕಕಕಸಡರನವ ಬಗಕಗ ದನಖಲಕಯ ಪಪಕನರ ಕಸಡನ ಬರನತತದಕ. 1 ನಕಕ ಪಪತವನದ ದನವನ ಆಸತಗಕ ಖನತಕಯನನನ ನಕಡರನತನತರಕ. 1 ನಕಕ ಪಪತವನದ ವನದಯ ಕಡಕಯಸದ ಪಪತ ವರರ ದನವನ ಆಸತಗಕ ಸಸಬಸಧಸ ತಕರಗಕಯನನನ ಪಡಕದನಕಕಕಳನಳತತದನದರಕ. ಸದರ ವಕನಕಲಕ ಹಕಕಳದ ಖನತಕಯನನನ ನಕಡನವನಗ 1 ನಕಕ ಪಪತವನದ ಸದಳಕಕಕ ಬಸದನ ಪರಶಕಲನಕ ಮನಡ ಸಸಬಸಧಪಟಟ ವವಕತ ಆಸತಯ ಸನಸಧಕನತಕಯಲಲ ಇದದ ಬಗಕಗ ಹನಗಕ ಮನಲಕಕತಸದ ಬಗಕಗ ತಳದನಕಕಕಸಡನ ಖನತಕಯನನನ ನಕಡನತನತರಕ. ವನದ ದನವನ ಸಸತತನ ಸನಸಧಕನತಕಯಲಲರನವನಗ 1 ಮತನತ 2 ನಕಕ ಪಪತವನದಯರನ ದನನಸಕಕ 10-11-2014 ರಸದನ ದನವನ ಆಸತಯನನನ ಒಡಕದನ ಹನಕಲನ ಹಕಕಕಗದಕದಕವವ ಎಸದರಕ ಸರ. "
28) Plaintiff, in para-7 of the plaint has specifically pleaded that on 25.11.2014 Defendant No.2 and his officials made an attempt to demolish the building, contending that suit schedule property comes within Sy.No.46 of Malagala Village and same was resisted by Plaintiff. This fact has also not been disputed by Defendant No.1. DW.1 has emphatically admitted that Defendants No.1 and 2 went to suit schedule property to demolish the building. However, Defendant No.1 is trying to justify his act, contending that suit schedule property comes within Sy.No.46 of Malagala Village, which is 'Balaiahana Kere' and the previous owner, OS.NO.9298/2014 21 having no manner of right, title and interest over suit schedule property, executed Sale Deed in favour of Plaintiff by playing fraud upon Plaintiff. Sale Deed is not a lawful document and possession of Plaintiff is unlawful.
29) 1st Defendant has placed reliance on Exs.D1 to D.27. It is to be noted that Exs.D.1 to D.27 are documentary evidence collected by Police during the course of investigation in BMTF Crime No. 128/2013 registered against 12 persons including Plaintiff for the offence punishable under Section 192(A) of the Karnataka Land Revenue Act, 1964. One of the charge-sheeted persons Smt.Sumithra filed criminal petition before the Hon'ble High Court of Karnataka in Cri.Petition No.6579/2106 for quashing of the proceedings in C.C.No.12057/2015 arising out of Crime No.128/2013 and same was quashed by the Hon'ble High Court of Karnataka vide Order dated 29.05.2019. Be that as it may. RTC OS.NO.9298/2014 22 at Exs.D.1 and D.12 make it clear that Sy.No.46 of Malagala Village is Government Kere. Defendant No.1 mainly relies upon Exs.D.20 and D.27, which are Survey Sketch and Letter dated 28.11.2014 addressed by BBMP to Deputy Superintendent of Police. Survey Sketch at Ex.D.20 indicates 13 encroachment in Sy.No.46 of Malagala Village. No where it is specifically mentioned in Ex.D.20 that Plaintiff has encroached Sy.No.46 of Malagala Village. Only Ex.D.27 mentions the name of Plaintiff as encroacher. There is no reason to rely upon Ex.D.27 by Defendant No.1 in absence of Plaintiff's name in Ex.D.20.
30) Further, DW.1, in his cross examination, has specifically admitted that there is no mention in survey sketch to say that Plaintiff has encroached Sy.No.46. Relevant part of cross examination of DW.1 is extracted as under :
"ನ.ಡ.19 ಸವಕಕರ ದನಖಲಕಯನನನ ಯನರ ಕಕಕಕರಕಕ ಮಕರಕಗಕ ತಯನರಸದನದರಕ ಎಸದನ ನನಗಕ ಹಕಕಳಲನ ಬರನವವದಲಲ. ನ.ಡ.19 ದನಖಲಕಯನನನ ನಮಮ OS.NO.9298/2014 23 ಕಚಕಕರಯಸದ ಪಡಕದನಕಕಕಸಡನ ಈ ಕಕಕಸನಲಲ ಹನಜರನ ಪಡಸದಕದಕನಕ. ಸದರ ನ.ಡ.19 ದನಖಲಕ 1 ನಕಕ ಪಪತವನದ ಸನಪದರಗಕ ಹಕಕಗಕ ಬಸತನ ಎಸದನ ನನಗಕ ಹಕಕಳಲನ ಬರನವವದಲಲ. ನ.ಡ.19 ರಲಲ ವನದಯರನ ಸವಕಕರ ನಸಬರರ 46 ನನನ ಒತನತವರ ಮನಡದನದರಕ ಎಸದನ ನಮಕದನ ಇರನವವದಲಲ. ನ.ಡ.19 ರಲಲ ಒತನತವರ ಮನಡದನದರಕ ಎಸದನ ಹಕಕಳನವ ವವಕತಗಳ ವರನದದ ಯನವವದಕಕ ಕಪಮವನನನ ಕಕಕಗಕಕಸಡರನವವದಲಲ . ತನಲಕಲಕನ ಭಕಮನಪಕರನ ನ.ಡ.19 ದನಖಲಕಯನನನ ತಯನರಸದನದ ಅದರಲಲ ಅವರನ ಒತತವರದನರರನನನ ನಮಕದಸರನವವದಲಲ. ನ.ಡ.21 ರಲಲ ವನದಯ ಹಕಸರನನನ ಸದಳಕಯ ಕನರಕರರಕಕಟರರ ರವರ ಚತನವಣಕ ಮಕರಕಗಕ ಸಕಕರಸದನದರಕ ಎಸದರಕ ಸರಯಲಲ....."
31) Also, DW.1 has emphatically admitted that no notice was given to alleged encroacher and adjacent land owners while conducting survey of Sy.No.46. Relevant portion of cross examination of DW.1 reads as under :
"....ಸವಕಕರ ನಸಬರರ 46 ರಲಲ ಸವಕಕರ ಮನಡನವ ಕನಲಕಕಕ ಒತನತವರ ಮನಡದನದರಕ ಎನನನವವರಗಕ ನನವವ ನಕಕಕಟಸರನಕಡ ಸವಕಕರ ಮನಡರನವವದಲಲ. ಅದಕಕ ರಕತ ಸವಕಕರ ಮನಡನವ ಕನಲಕಕಕ ಅಕಕ ಪಕಕದ ಜಮಕನನ ಮನಲಕಕರಗಕ ನಕಕಕಟಸನನನ ನಕಡರನವವದಲಲ. ..."
"...ದನವನ ಆಸತ ಸವಕಕರ ನಸಬರರ 46 ರಲಲ ಬರನತತದಕಯನಕ ಅಥವನ ಸವಕಕರ ನಸಬರರ 65/4 ಎ ನಲಲ ಬರನತತದಕಯನಕ ಎಸದನ ನನಗಕ ಗಕಕತತಲಲ ಎಸದನ ಮನಖವ ವಚನರಣಕಯಲಲ ಹಕಕಳದಕದಕನಕ ಎಸದರಕ ಸರ. ..... ."
32) Thus, it has been clear that Ex.D.20 has been prepared without there being given any notice to Plaintiff as well as adjacent land owners. Plaintiff's OS.NO.9298/2014 24 specific case is that suit schedule property is part and parcel of Sy.No.65/4A of Saneguravanahalli Village. Ex.D.20 does not specify the encroachment made by Plaintiff in Sy.No.64 and moreover, Ex.D.20 has not been prepared in the presence of Plaintiff and alleged encroacher. No documents are available to show that there has been encroachment by Plaintiff in Sy.No.46 except Ex.D.27, in which Plaintiff's name is shown as encroacher. No explanation has been forthcoming from Defendant No.1 that on what basis Plaintiff's name has been mentioned in Ex.D.27. Had Defendant No.1 conducted the survey of Sy.No.46 of Malagala Village in the presence of Plaintiff and adjacent land owners and had the alleged encroachment of Plaintiff been mentioned in the survey sketch, then, it would be proper to say that Plaintiff is the encroacher of Sy.No.46 of Malagala village and in that circumstance, Defendant No.1 would be entitled to take action by following due OS.NO.9298/2014 25 process of law. In Devi Singh case (supra), it has been specifically held that "the Corporation or its officers were not entitled to either take possession of another person's property or retain its possession or dispossess a person who is already in possession without having recourse to the ordinary remedies under the law."
33) Defendant No.1 has placed reliance on the following judgments :
(a) K.V.Narayan vs. Sharana Gowdam [ILR 1986 KAR 1130], wherein it is held that "a trespasser in possession, is not entitled to a temporary injunction as against a true owner".
(b) Corporation of the City of Bangalore vs. M.Papaiah and another, [AIR 1989 SC 1809], wherein the Hon'ble Supreme Court was pleased to hold that "revenue records are not documents of title".
OS.NO.9298/2014 26
34) It is to be noted that in the instant case, it is proved that Plaintiff's right, title, interest and possession over suit schedule property is based on registered Sale Deed. Moreover, his title over suit schedule property is nevertheless based on revenue records. In that circumstance, the ratio laid down in the judgments (supra) is not availed of by Defendant No.1.
35) Further reliance is placed on Section 67 of the Karnataka Land Revenue Act, 1964 which states that public roads, etc., and all lands which are not the property of others belong to the Government. In the instant case, Defendant No.1 claims Plaintiff's property as portion of Sy.No.46 of Malagala Village without proving the same. In that view, on a fair reading of Section 67, Defendant No.1 has no right to claim others' property as Government land. Viewed from any angle, Defendant No.1 has failed in his attempt to prove his contention.
OS.NO.9298/2014 27
36) Thus, from documentary evidence and oral admissions of DW.1, it has been established that Plaintiff has been in possession and enjoyment of the suit schedule property since the date of purchase and on 25.11.2014 Defendants made an attempt to demolish the building constructed over suit schedule property. That being the case, it has be to said that Plaintiff is entitled to the relief as prayed for. Accordingly, I answer the above issues in the affirmative.
37) Issue No.4 : In view of foregoing discussion and findings on Issues No.1 to 3, I proceed to pass the following :
ORDER (1) Suit filed by Plaintiff is hereby decreed.
(2) Defendants are hereby
restrained by way of permanent
injunction from demolishing the
building constructed over suit
schedule property and from
OS.NO.9298/2014
28
interfering with Plaintiff's
possession and enjoyment of suit schedule property.
(3) Draw Decree accordingly.
(4) Having regard to the peculiar facts and circumstance of the case, no order as to costs.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, on this the 5th day of February 2021) (RAMA NAIK) VI Addl.City Civil & Sessions Judge Bengaluru City OS.NO.9298/2014 29 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Sri.Chikke Gowda, dtd.05.04.2016
(b) Defendants side :
D.W.1 - Sri.D.Balaram, dtd.06.07.2019 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Original Sale Deed dtd.20.12.2012 Ex.P.2 Khatha Extract dtd.26.04.2014 in the name of Plaintiff Ex.P.3 Encumbrance Certificate for the period from 25.05.2004 to 05.06.2014 Ex.P.4 Property Tax Receipt for the period 2014- 2015 in the name of Plaintiff Ex.P.5 Certificate dtd.11.06.2013 issued by Asst.Revenue Officer, BBMP regarding transfer of Khatha in the name of Plaintiff Ex.P.6 BBMP Receipt dtd.11.6.2013 for having received khata transfer Fees from Plaintiff.
Ex.P.7 Original GPA dtd.29.08.1996 executed by Sri.B.H.Srinivasaiah in favour of Smt.Sushilamma.
Ex.P.8 Certificate dated 17.01.1999 issued by
BBMP in the name of
Smt.Susheelamma
Ex.P.9 Khatha Book in the name of
Smt.Susheelamma
OS.NO.9298/2014
30
Ex.P.10 Property Tax Receipt for the year 2013-
2014 in the name of
Smt.Susheelamma
Ex.P.11 Property Tax Receipt for the year 2012-
2013 in the name of
Smt.Susheelamma
Ex.P.12 Property Tax Receipt for the year 2011-
2012 in the name of
Smt.Susheelamma
Ex.P.13 Property Tax Receipt for the year 2010-
2012 in the name of
Smt.Susheelamma
Ex.P.14 Property Tax Receipt for the year 2009-
2010 in the name of
Smt.Susheelamma
Ex.P.15 Property Tax Receipt for the year 2008-
2009 in the name of
Smt.Susheelamma
Ex.P.16 Property Tax Receipt for the period from 1999 to 2003-04 and 2004-05 in the name of Smt.Susheelamma Ex.P.17 Property Tax Receipt for the year 2005-
2008 in the name of
Smt.Susheelamma
Ex.P.18 Property Tax Receipt for the period from 01.10.1995 to 1996-97 and 1998-
1999 in the name of
Smt.Susheelamma
Ex.P.19 Letter issued by Asst.Revenue Officer, BBMP to Plaintiff regarding fixation of property Tax.
Ex.P.20 Photographs - 5 Nos.
Ex.P.21 CD Ex.P.22 Electricity Bill & Water Bill & Ex.P.23 Ex.P.24 Sanctioned plan OS.NO.9298/2014 31 Ex.P.25 Khatha Certificate dtd.26.04.2014 in the name of Plaintiff
(b) Defendant's side :
Ex.D.1 RTC in respect of Sy.No.46 for the year 2013-14 [exhibited in evidence of PW.1] Ex.D.2 Letter dtd.10/28.11.2014 of Asst.Revenue Officer, BBMP., Bengaluru, addressed to Dy.Superintendent of Police, BMTF, Task Force, Bengaluru.
[exhibited in evidence of PW.1] Ex.D.3 Charge Sheet in Crime No.128/2013 [exhibited in evidence of PW.1] Ex.D.4 Appeal filed before Regional Commissioner by 1st Defendant in MUN.RP.NO:42/2015-16 [exhibited in evidence of PW.1] Ex.D.5 Charge Sheet in Crime No.128/2013 Ex.D.6 FIR in Crime No.128/2013 Ex.D.7 Complaint dtd.27.08.2013 filed by Sri.R.Prakash, JDS party Leader, BBMP., regarding encroachment of 'Balaiahna Kere' Ex.D.8 Spot Panchanama dtd.24.11.2014 Ex.D.9 Police Notice dtd.28.01.2014 issued by Dy.Superintender of Police, BMTF., to Revenue Inspector regarding submission of documents in respect of Mythri School in Ward No.103 & house of Sri.Rajanna. Ex.D.10 Report of Village Accountant dtd.03.02.2014 Ex.D.11 Panchanama dtd.03.02.2014 submitted by Village Accountant, Mallathahalli Circle, Yeswanthapura Hobli, Bengaluru North Taluk.
Ex.D.12 RTC in respect of Sy.No.46 of Malagala Village for the year 2013-14 OS.NO.9298/2014 32 Ex.D.13 Aakara Bandh sketch Ex.D.14 Sy.Tippani of Malagala Village Ex.D.15 Original Sy.sketch regarding Sy.No.46 Ex.D.16 Survey Tippani of Malagala Village Ex.D.17 Re-Survey Tippani of Malagala Village Ex.D.18 Hissa Survey Tippani of Malagala Village Ex.D.19 Survey original tippani of Malagala Village Ex.D.20 Sketch in respect of Sy.No.46 of Malagala Village Ex.D.21 Letter (Reminder) dtd.28.10.2014 of Dy.Superintendent of Police, BMTF, Bengaluru, issued to Tahsildar, regarding submission of particulars regarding encroachment of Balaiahana kere in Ward No.103.
Ex.D.22 Letter dtd.31.10.2014 of Tahsildar,
Bengaluru North Taluk, to
Dy.Superintendent of Police, BMTF. Ex.D.23 Letter of Taluk Surveyor Ex.D.24 Letter issued by Revenue Inspector Ex.D.25 Tippani of Malagala Village Ex.D.26 Survey original prathi of Malagala Village Ex.D.27 Letter dtd.10/28.11.2014 issued by BBMP regarding names and address of encroachers in Sy.No.46, Wad No.103.
VI Addl.City Civil & Sessions Judge, Bengaluru City