Bangalore District Court
Mrs. Saraswathi vs Miss. Sushila Mary on 8 February, 2021
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 8th day of February, 2021.
O.S.No.26410/2014
Plaintiff: Mrs. Saraswathi,
W/o Mr. Balan,
Aged about 46 years,
R/at No.795, Poojappa Layout,
2nd Cross, Ramaswamy Palya,
Kammanahalli,
Bangalore560 033.
[By SSL - Advocates]
V/s
Defendant: Miss. Sushila Mary,
Aged about 50 years,
D/o Late Hari,
R/at No.796, Poojappa Layout,
2nd Cross, Ramaswamy Palya,
Kammanahalli,
Bangalore560 033.
[By Sri. MSK Adv]
2 OS No.26410/2014
Date of Institution of the suit 25.09.2014
Nature of the (Suit or pronote, suit
for declaration and possession, suit Permanent Injunction Suit
for injunction, etc.)
Date of the commencement of
18.03.2019
recording of the Evidence.
Date on which the Judgment was 08.02.2021
pronounced.
Year/s Month/s Day/s
Total duration 06 04 14
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff against the Defendant initially for the relief of Permanent Injunction, praying to restrain the Defendant, her agents, henchmen, workers, labourers, or any one claiming through her or under her, from interfering with the peaceful Possession and enjoyment of the Plaintiff, over the Suit Schedule Property. Subsequently, the said suit was got amended and the relief of declaration is sought for.
3 OS No.26410/20142. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, she is the absolute owner of the property bearing No.4, Khatha No.2643/1 formed in Sy No.2, Byataguttapalya @ Ramaswamy Palya, presently Bearing Municipal House No.795, Poojappa Layout, 2 nd Cross, Ramaswamy Palya, Kamanahalli, Bengaluru North, Bengaluru, measuring East to West: 22 Feet, North to South:40 feet, bounded on the east:Site No.5, on the west by Site No.3, North by Patel Gullappa Land and South by 20 Feet road, which is shown as the Suit Schedule Property, in this suit. The Plaintiff has purchased the said property from one Mr.Susainathan in the year 1992, by paying the entire sale consideration amount and since then she is in continuous Possession in the said property. Since there was ban for registering the Revenue sites by the Govt. of Karnataka, in the year 1992, so the Plaintiff was left with no other alternative than to enter with an agreement of sale dtd.12.04.1992 and an irrevocable General Power of Attorney dtd.23.07.1992, Agreement of sale dtd.12.04.1992.4 OS No.26410/2014
Subsequently, the Plaintiff constructed a residential house in the vacant site and she is residing in the said house with her family till today. Later in the year 1995, the property of the Plaintiff was brought under the Jurisdiction of the City Corporation Bengaluru, she had paid betterment charges and she is paying regular taxes to the Corporation. Khatha of the Suit Schedule Property is standing in her name.
In the year 2009, the Plaintiff had lodged a complaint with the Bruhat Bengaluru Mahanagara Palike, as the western wall of the Defendant property was in a dilapidated condition. On the said complaint the officials of the Bruhat Bengaluru Mahanagara Palike, visited the spot by causing notice to both the Plaintiff and the Defendant herein. They have also issued notice to the Plaintiff to remove the toilet, staircase constructed by her, in her property. The Defendant has threatened the Bruhat Bengaluru Mahanagara Palike, authorities contending that she is an advocate and insisted them to issue notice to the Plaintiff to demolish the 5 OS No.26410/2014 toilet and staircase. The Plaintiff was constrained to initiate the proceedings against the Defendant and the Bruhat Bengaluru Mahanagara Palike, authorities in OS No.5898/2009, which came to be dismissed on 12.08.2015. In the said suit, the Defendant had contended that, the Plaintiff has encroached to an extent of 2 feet X 40 feet in her property, inorder to safeguard herself from any action tobe taken by the Bruhat Bengaluru Mahanagara Palike Authorities, against her. The Defendant has constructed her house and has erected the fencing in her property. The Plaintiff constructed her house in her own property, so the question of encroachment over the property of the Defendant does not arise.
On 20.09.2014 the BBMP Officials alongwith Banaswadi Police came to the Suit Schedule Property and demolished the toilet and staircase standing in her property, so also they have demolished the compound wall of the Defendant which was in dilapidated condition. The Defendant never altered the wall after several request made to her by the 6 OS No.26410/2014 Plaintiff. The Defendant is trying to putup compound wall by encroaching 2 feet X 40 feet in the property of the Plaintiff, without any justification and is trying to interfere with the peaceful Possession and enjoyment of the Plaintiff over her property. The Defendant is having upper hand in making illegal efforts to putup fencing. The Plaintiff has also filed an application seeking permission to putup compound wall in her property, with the Bruhat Bengaluru Mahanagara Palike, on 20.09.2014, but so far no response is shown by the authorities for the said permission application.
The Defendant is having malafide intention to knock down the property belonging to the Plaintiff. She is putting her hectic efforts to dispossess the Plaintiff from the Suit Schedule Property. If the Defendant succeeds in her illegal acts, the Plaintiff will be put to great hardship. The Plaintiff approached the Banaswadi Police seeking action against the Defendant, but the said police have directed the Plaintiff to approach the Civil Courts of Law, as the matter is of Civil in nature. Thus, the 7 OS No.26410/2014 Plaintiff was constrained to file the present suit for the relief of injunction against the Defendant.
3. Suit Summon was issued to the Defendant. The Defendant has appeared through her Counsel on 23.10.2014. The Defendant has filed her Written Statement on 06.10.2015.
4. The Defendant in her Written Statement has denied all the allegations made by the Plaintiff in the Suit Plaint and has specifically contended that, she is the owner of neighboring property to the Suit Schedule Property, as she is the owner of the said property. The Plaintiff had constructed a staircase attached to the wall of her house, with toilet underneath the said staircase, by using the wall of the Defendant's house. Suppressing the said fact, the Plaintiff had filed a suit at OS No.5898/2018, which came to be dismissed on 12.08.2014.
Originally, the property situated towards the eastern side of the Suit Schedule Property was owned and possessed by the father of the Defendant, who had putup a construction upon, 8 OS No.26410/2014 obtaining building construction sanctioned plan from the Bruhat Bengaluru Mahanagara Palike, in accordance with law. Thereafter, the father of the Defendant bequeathed the said property to the Defendant by virtue of the Registered Will dtd.29.05.2006. After the demise of her father, the Defendant is residing in the said property measuring 30 feet X 40 feet and the Plaintiff clandestinely has encroached into 2 Feet X 40 feet, to suit her needs and now has filed this false case against her. The toilet constructed by the Plaintiff on encroachment started leakage and there was seepage in the wall of house of the Defendant. The said fact was brought to the knowledge of the Plaintiff, but she has never attempted to rectify the same. Having no other alternative, as the seepage was troubling the Defendant, she filed a complaint with the Bruhat Bengaluru Mahanagara Palike Authorities, the said authorities visited the spot, inspected it and issued notice under Sec 321 of KMC Act. Since she had no approved building construction plan, she didn't challenge the notice issued under the 9 OS No.26410/2014 KMC Act. The Plaintiff inorder to overcome the same had filed a suit OS No.5898/2009.
The Defendant is nothing todo with the property of the Plaintiff, nor this Defendant has made any efforts to interfere with the Possession of the Plaintiff over the Suit Schedule Property, as pleaded by the Plaintiff to raise a cause of action against her. Hence prayed to dismiss the suit of the Plaintiff.
5. On the basis of the above said pleadings, my Learned Predecessor in office has framed the following issues on 09.02.2016 as under:
ISSUES
1. Whether the Plaintiff proves that, she was in lawful Possession and enjoyment of the Suit Schedule Property, as on the date of the suit?
2. Whether the Plaintiff proves the alleged interference of the Defendant?
3. Whether the Plaintiff proves that, she is entitled for the Permanent Injunction against the Defendant, as prayed for?
4. What order or decree?10 OS No.26410/2014
6. The Plaintiff got amended the suit plaint and incorporated Para No.17(a) to 17(c), wherein the Plaintiff contends that, the Defendant had already putup construction of her residential house, on the eastern side of the Plaintiff's property, and had constructed a compound wall which was existing even prior to the purchase of the Suit Schedule Property by the Plaintiff. The Defendant having acknowledged the fact of existence of a compound inbetween both the properties, one belonging to the Plaintiff and other belonging to the Defendant, has taken undue advantage of Bruhat Bengaluru Mahanagara Palike, officials, secured order from the Bruhat Bengaluru Mahanagara Palike authorities, to demolish the property of the Plaintiff, even without an order U/Sec 321/323 of Municipal Corporation Act, and got demolished the staircase, toilet as well as the compound wall. the demolishing made by the Bruhat Bengaluru Mahanagara Palike, officials on 20.09.2014, gave rise to the Plaintiff to file the suit. The Defendant has written several threat letters and has given complaints against the Plaintiff to the 11 OS No.26410/2014 Bruhat Bengaluru Mahanagara Palike authorities and has got reduced the area of the Plaintiff's property from 22 feet X 40 feet to 20 feet X 40 feet , in the records maintained by them. The Plaintiff made several representations to the Bruhat Bengaluru Mahanagara Palike authorities to rectify the said measurements, but in vain. The Defendant is trying to claim illegally the property of the Plaintiff measuring 2 feet X 40 feet on the basis of the said illegal entries made by the Bruhat Bengaluru Mahanagara Palike authorities. The Defendant due to her illegal acts is securing demolition of the staircase, compound wall, parapet wall and toilet from the existing place, which is situated in the north eastern corner of the Plaintiff's property. The Plaintiff is constrained to seek for additional relief of mandatory injunction together with damages, to direct the Defendant to putp staircase, compound wall and parapet wall, which was demolished at the instance of the Defendant and this structure is to be putup within the property of the Plaintiff, measuring 22 feet X 40 feet, at the cost of the Defendant. On 12 OS No.26410/2014 the basis of the said pleadings the Plaintiff has sought for the additional reliefs, one for declaration, to declare her as the rightful owner by way of General Power of Attorney, in Possession and enjoyment of an area measuring 22 feet X 40 feet and that there is no encroachment made by the Plaintiff to the extend of 2 feet X 40 feet, as contended by the Defendant; and another relief of mandatory injunction, directing the Defendant to putup staircase, compound wall and parapet wall, which was demolished at the instance of the Defendant, to be put within the area of the Plaintiff measuring 22 feet X 40 feet, at the cost of the Defendant.
On 23.10.2018 the Learned Counsel for the Defendant submits that, Defendant has no additional Written Statement, inview of the amendment carried out by the Plaintiff, to the Suit Plaint.
On the basis of the amended Suit Plaint this Court has framed additional issues, as under: 13 OS No.26410/2014 ADDITIONAL ISSUES FRAMED ON 10.01.2019
1. Whether the Plaintiff proves that, she is the owner in Possession of an area measuring 22ft X 40ft as prayed for?
2. Whether the Plaintiff proves that Defendant has encroached over her property to the extent of 2ft X 40ft as contended in para No.17(a) to 17(c) of the amended Suit Plaint?
3. Whether the Plaintiff is entitled for the relief of declaration, as prayed for?
4. Whether the Plaintiff is entitled for the relief of mandatory injunction, as prayed for?
5. What Order or Decree?
7. Initially the case was madeover to CCH
21. The same was transferred to this Court on 03.08.2018 by virtue of the notification No ADM I(A)413/2018 dated 31.07.2018.
14 OS No.26410/20148. The Plaintiff inorder to prove her case has got examined herself as PW1 and has got marked 46documents as Ex.P.1 to Ex.P46. PW.1 was cross examined on behalf of the Defendant on 14.02.2020 and 07.03.2020.
Per contra, the Defendant got herself examined as DW.1 and got marked 29 documents, as Ex.D1 to Ex.D29. DW.1 was cross examined on behalf of the Plaintiff on 17.12.2020.
9. The matter was posted for Arguments. Heard the Learned Counsel for the Plaintiff and Defendant. Learned Counsel for the Plaintiff has filed his Written arguments on 19.01.2020 and has placed his reliance on the decision of the Hon'ble Apex Court reported 2019 (9) SCC 202.
Percontra, the Learned Counsel for the Defendant has placed his reliance on eight decisions reported in (a) (2012) 1 SCC 656; b) (2015) 1 ALT 236; c) ILR (2008) Allahabad 552; d) Rev.Pet No.1547, 1588, 1699, 1806, 2358 to 2362 of 2002, before the National Consumer Disputes Redressal 15 OS No.26410/2014 Commission; e) ILR 2014 Kar 1311; f) RAC 4946 of 2011 before the Hon'ble High Court of Punjab and Hariyana; g) Civil Rev. No.30/2016 before the Hon'ble High Court of Allahabad; and h) AIR 2019 SC 5374.
I have carefully gone through the Written Arguments filed on behalf of the Plaintiff, as well as the decisions relied by both.
10. My findings on the above said issues are as under:
Issue No.1: In the Affirmative;
Addl. Issue No.1: In the Negative;
Addl. Issue No.2: In the Negative;
Issue No.2: In the Affirmative;
Addl. Issue No.3: In the Negative;
Addl. Issue No.4: In the Negative;
Issue No.3: In the Affirmative;
Issue No.4
and
Addl. Issue No.5 : As per final order for the following;
:R E A S O N S:
11. As per the contentions of both the parties, the undisputed facts are as under:
16 OS No.26410/2014a) The Plaintiff is the neighbor of the Defendant ;
b) Property of the Plaintiff is located towards the western side of the property of the Defendant.
Inotherwords property of the Defendant is located towards eastern side of the property of the Plaintiff;
c) Plaintiff has erected building structure, in her property;
d) Father of the Defendant has erected building structure in the property received by the Defendant from her father.
12. ISSUE No.1 and Addl.Issue No.1:
Both these issues are interlinked with each other, so they are taken together for discussions, inorder to avoid repeatations and confusions, in the discussion.
12.01. The Plaintiff contends that, she is the owner of the Suit Schedule Property as she had acquired the said property from A Susainathan, under the Agreement of Sale dtd.12.04.1994 and General Power of Attorney dtd.23.07.1992. And 17 OS No.26410/2014 further contends that, she is in Possession of the said property from 12.04.1992.
12.02. The Learned Counsel for the Plaintiff would contend that, originally, Site No.4, belonged to K. Shankar and he sold the said land to D.T Nateshan by virtue of Registered Sale Deed dtd.05.02.1972Ex.P1. The said Nateshan died on 07.03.1982 as per the Death certificate Ex.P2. And his legal heirs transferred Site bearing No.4, measuring East to West 30 feet and North to South 40 feet to G. Indrachandra, as he had acquired the said property under Agreement of sale dtd.09.05.1983Ex.P3. Inturn said G. Indrachandra transferred the said property to Mr. George byway of Affidavit dtd.04.06.1984Ex.P4. Further the said George transferred the said property with the measurements East to West:22 feet and North to South:40 feet to Savithramma, by virtue of Agreement dtd.06.02.1988Ex.P43, Affidavit dtd.19.02.1988Ex.P6, and Power of Attorney dtd.19.02.1988Ex.P5. Thereafter, the said Savithramma transferred property acquired by her to 18 OS No.26410/2014 A Susainathana by virtue of Agreements dtd.14.02.1990Ex.P44 and dtd.14.02.1991Ex.P45, General Power of Attorney dtd.19.02.1988Ex.P7.
And lastly A Susainathan transferred his rights over the Suit Schedule Property infavour of the Plaintiff by virtue of Agreement dtd.12.04.1992Ex.P46 and General Power of Attorney dtd.23.07.1992Ex.P8.
12.03. The Plaintiff has produced Original Registered Sale Deed dtd.05.02.1972. As per this document, it is seen that, D.T Nateshan has purchased Site No.4, in Sy.No.2, of Byataguttapalya @ Ramaswamy Palya, measuring East to West:30 feet and North to South: 40feet, within the boundaries to the East: Site No.5, to the West: Site no.3, to the North: Land of Gullappa Patel: and to the South; 20feet width Road, from K. Shankar, for the valuable consideration of Rs.1,000/. Further this document also evidences that the purchaser has been put into actual Possession of the purchased property, on the day of its execution i.e., on 02.12.1971. Ex.P.1 is executed on 02.12.1971, but the same is registered on 05.02.1972. Asper this 19 OS No.26410/2014 document, T.D.Nateshan, is shown to be the owner in Possession of Site No.4 the Suit Schedule Property, as on 02.12.1971.
12.04. The Plaintiff has produced Registered Agreement of Sale dtd.19.05.1983 at Ex.P3. As per this document, it is seen that, 1) Raja Maniammal, widow of late D.T.Nateshan, 2) N. Ramu, 3) N. Jayaram, 4) Smt. Jayalakshmi, 5) Smt. Shanthakumari, 6) Smt. Mageswari, children of late T.D.Nateshan have agreed to sell Site No.4 in Sy.No.2, situate at Byataguttanapalya @ Ramaswamy Palya, acquired by husband of No.1 and father of Nos.2 to 6, under the Registered Sale Deed No.2993 of 7172, dtd.05.02.1972, to G. Indrachandra for the total consideration amount of Rs.18,000/ of which they have received Rs.16,000/ as advance amount. Further this document also evidences that, the intending purchaser G. Indrachandra is put into Possession of the said property, on the day of the Agreement of Sale. As per this document, though title of the property bearing Site No.5, is not transferred to G. 20 OS No.26410/2014 Indrachandra, but Indrachandra has been put into Possession of the said property.
12.05. The Plaintiff has produced affidavit dtd.04.06.1984, at Ex.P.4. As per this document, it is seen that, Indrachandra has deposed that, he has sold Site No.4, infavour of S. George S/o Selvado, for the total consideration of Rs.20,000/ and has delivered the vacant Possession of the said property, by getting relinquished all his rights over the said property. Though, the Possession of Site No.4 is transferred by G. Indrachandra, infavour of Mr. George, but the ownership rights over Site No.4, have not been transferred to Mr. George.
12.06. The Plaintiffs have produced Agreement of Sale dtd.06.02.1988, at Ex.P.43; Affidavit dtd.19.02.1988 at Ex.P.6; and General Power of Attorney Holder dtd.19.02.1988 at Ex.P.5. As per these documents, it is seen that, Mr. George has agreed to sell the site No.4 infavour of Savithramma for Rs.36,000/, of which he has 21 OS No.26410/2014 received Rs.1,000/ under Ex.P43 Agreement of Sale.
Mr. George has sworn to an affidavit as per Ex.P6, contending that,he has sold the property bearing Site No.4 to Savithramma on receiving the full consideration amount of Rs.36,000/ and has delivered the Possession of the said site to her. Further Mr. George has executed General Power of Attorney infavour of Savithramma as per Ex.P5 inrespect of Site No.4.
12.07. The Plaintiffs have produced General Power of Attorney dtd.19.02.1988 as per Ex.P7; Agreement dtd.14.02.1990 as per Ex.P44 and Agreement dtd.14.02.1991 as per Ex.P45. As per this document, it is seen that, Savithramma has executed Power of Attorney as per Ex.P7 infavour of A Susainathan wherein she had delivered the Possession of the said property infavour of A Susainathan.
Further Savithramma has agreed to sell Site No.4 to A. Susainathan S/o Arokiya Swamy for the sale consideration of Rs.66,000/, of which he has 22 OS No.26410/2014 received Rs.26,000/ as advance, as per Ex.P44 Agreement of Sale.
Savithramma infurtherance of earlier agreement of sale has executed another agreement as per Ex.P45, wherein she had agreed to sell Site No.4, infavour of A Susainathan. She had received Rs.40,000/ balance consideration from A Susainathan under said document. This document also evidences that, A Susainathan put into actual Possession of Site No.4, measuring East to West:22 feet and North to South:40 feet, by Savithramma.
12.08. Further the Plaintiff has produced Agreement of sale dtd.12.04.1982 at Ex.P46 and General Power of Attorney dtd.23.07.1982 at Ex.P8. As per Ex.P46Agreement, it is seen that, A Susainathan has agreed to sell Site No.4 infavour of Saraswathi the present Plaintiff for the total consideration of Rs.80,000/. This document evidences that, the intended purchaser has paid an amount of Rs.20,000/ to the intended seller, as security deposited amount. Further this document 23 OS No.26410/2014 evidences that, the intended purchaser is put into actual Possession of the Site No.4.
As per Ex.P8 General Power of Attorney, it is seen that, A Susainathan has authorized B. Sarasawthi the Plaintiff to perform all the acts and deeds inrespect of Site No.4. Further this document also evidences that, the executor has delivered the Possession of Site No.4 infavour of his attorney.
13. The Learned Counsel for the Defendant would contend that, on the basis of Ex.P1 to Ex.P8, Ex.P43 to Ex.P46, the Plaintiff has not acquired any title muchtheless ownership over the Suit Schedule Property. Further he would contend that, title over the Suit Schedule Property cannot be transferred infavour of the Plaintiff, by virtue of Affidavits, Power of Attorneys and the Agreements. He has placed his reliance on the below mentioned decisions:
(a) of the Hon'ble Apex Court, in the case of Suraj Lamp and Industries Private Limited V/s 24 OS No.26410/2014 State of Haryana and Another, reported in (2012) 1 SCC 656, wherein it is held that:
"Immovable property can be transferred/conveyed only by Deed of conveyance (Sale Deed) duly stamped and registered, as required by law. An Agreement of Sale, power of Attorney and living Will transfers, neither convey any title nor do they amount to transfer of, or create interest in, immovable property except to the limited extent of Sec. 53(A)".
(b) of the Hon'ble High Court of Judicature at Hyderabad, in the case of Ahmed Bin Sayeed V/s Kamala Bai, reported in (2015) 1 ALT 236, wherein it is held that:
"Sec. 190 of Indian Contract Act, contends a bar as to agent further delegating the powers. Delegation by an agent, that is entrusted to another person by an agent of the exercise of the power or duty entrusted to him, by his principle, is in general prohibited, under the maxim 'delegatus nonprotest delegare' which means a delegated authority cannot further redelegate it".25 OS No.26410/2014
(c) of the Hon'ble Apex Court, in the case of Bharat Petroleum Corporation Ltd., V/s Amar Autos and Others, reported in ILR (2008) Allahabad 552, wherein it is held that:
"Power of attorney or an affidavit of such nature is only required to prima facie satisfy the Court that a company or a corporation or a body corporate has presumably proceeded with the suit under its seal and signature. It has nothing to do with the registration of the document, unless it is compulsorily registrable".
(d) of the Hon'ble National Consumer Disputes Reddressal Commission, in the case of Escorts Ltd., V/s Shivaji Tukaram Patil and Others, reported in Rev.Pet No.1547, 1588, 1699, 1806, 2358 to 2362 of 2002, wherein it is held that:
"Agreement between the manufacturer and the dealer whereby the manufactures have engaged their dealer to effect sales of their products. If an agreement to purchase and sale is entered by both manufacturer and the dealer, with the third party, with a 26 OS No.26410/2014 Clause of joint and several liability, then both manufacturer and the dealer will be liable."
(e) of the Hon'ble High Court of Karnataka, in the case of Smt. Sumitra Bai V/s P. Siddesh and Nagaraju, reported in ILR 2014 Kar 1311, wherein it is held that:
"When the Plaintiff or the Defendants failed to prove their case pleaded on the basis of evidence on record, the Court has to draw inference that the Plaintiff has to fail, as initial burden has not been discharged, by him".
(f) of the Hon'ble High Court of Punjab and Haryana, in the case of Ramkishna & Another V/s Bijender Mann @ Vijender Mann (RSA.No.4946 of 2011, date of decision 12.10.2012), reported in RAC 4946 of 2011, wherein it is held that;
"A suit for specific performance based upon an unregistered Agreement to sell accompanied by delivery of Possession or executed infavour a person, who is already in Possession, 27 OS No.26410/2014 cannot, therefore, be said to be barred by Sec. 17(1A) of the Registration Act, 1908. The proviso 2 Sec. 49 of the Registration Act, legitimizes such a contract to the extent that even though unregistered, it can form the basis of a suit for specific performance and be led into evidence, as proof of the agreement or part performance of a contract".
(g) of the Hon'ble High Court of Allahabad, in the case of Virendra Shankar Tivari V/s One Place Infrastructure Pvt. Ltd., (Civil Rev. No.30/2016, date of decision: 09.03.2016), wherein it is held that:
"Points relating to jurisdiction or bar of suit by any law, may be decided on the basis of plaint averments, but without discussing relevant legal provisions. Declining the consideration on such issues may not be accepted as proper exercise of jurisdiction".
(h) of the Hon'ble Apex Court, in the case of Shivkumar & Another V/s Union of India & Others, reported in AIR 2019 SC 5374, wherein it is held that:
"Immovable property can be legally and lawfully transferred/conveyed only a 28 OS No.26410/2014 registered deed of conveyance.
Transaction of nature of GPA sales or S.A./GPA/Will transfers, do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. The Courts will not treat such transactions as completed or concluded transfers or as conveyances, as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Sec. 53A of the T.P. Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue records".
14. Applying the above principles of law to the instant case at hand, it can be said that, the sale of Site No.4, made by K. Shankar infavour of T.D.Nateshan, by virtue of Registered Sale Deed dtd.05.02.1972Ex.P.1 is a concluded contract. Further, the sale of Site No.4 by the legal heirs of T.D.Nateshan infavour of G. Indrachandra, under the Registered agreement of Sale dtd.19.05.1983, as per Ex.P.3 is neither a concluded contract nor a complete transfer, as it is only an Agreement of Sale and not the Sale as required U/Sec. 54 of the T.P.Act.
29 OS No.26410/2014Further, the transfer of Site No.4 by G. Indrachandra infavour of Mr. George, by way of Affidavit dtd.04.06.1984 as per Ex.P.4 is neither a concluded contract nor a complete transfer, as G. Indrachandra was only the agreement holder under Ex.P.3 and he had not acquired the title to the said propertySite No.4, under Ex.P.3. So he cannot pass over the right, which he himself does not have. The said instance is explained by the maxim 'Nemo dat Quod non habet' which means, a person who does not have the right cannot transfer the said right to another person.
Further, the transfer of Site No.4 made by Mr. George infavour of Savithramma, as per the Agreement dtd.06.02.1988Ex.P.43; Affidavit dtd.19.02.1988Ex.P.6 and Power of attorney dtd.19.02.1988Ex.P.5, is neither a concluded contract nor a complete transfer, as Mr. George was only the holder of the property under Ex.P.4 and he had not acquired the title to the said propertySite No.4, under Ex.P.4. So he cannot passover the right, which he himself does not have. The said instance 30 OS No.26410/2014 is explained by the maxim 'Nemo dat Quod non habet' which means a person who does not have the right cannot transfer the said right to another person.
Further, the transfer of Site No.4 made by Smt. Savithramma infavour of A. Susainathan, as per the General Power of Attorney Holder dtd.19.02.1988 Ex.P.7; Agreement dtd.14.02.1990Ex.P.44; Agreement dtd.14.02.1991Ex.P.45; is neither a concluded contract nor a complete transfer, as Smt. Savithramma was only the Agreement Holder of the holder of the property under Ex.P.43, Ex.P.6 and Ex.P.5 and she had not acquired the title to the said propertySite No.4, under said documents. So she cannot passover the right, which she herself does not have. The said instance is explained by the maxim 'Nemo dat Quod non habet', which means a person who does not have the right cannot transfer the said right to another person.
Further, the transfer of Site No.4 made by A. Susainathan infavour of Saraswathi the Plaintiff, as per the Agreement dtd.12.04.1992Ex.P.46; General Power of Attorney Holder, dtd.23.07.1992 31 OS No.26410/2014 Ex.P.8; is neither a concluded contract nor a complete transfer, as A. Susainathan was only an agreement holder from the holder of the property under Ex.P.7, Ex.P.44 and Ex.P.45 and he had not acquired the title to the said propertySite No.4, under the said documents. So he cannot passover the right, which he himself does not have. The said instance is explained by the maxim 'Nemo dat Quod non habet', which means, a person who does not have the right cannot transfer the said right to another person.
15. So on the basis of the above said documentary evidence produced by the Plaintiff, the Plaintiff cannot claim the title to the Suit Schedule Property.
16. The Learned Counsel for the Plaintiff would contend that, the name of the Plaintiff is mutated in the records of the said property and katha pertaining to the said property is standing in the name of the Plaintiff, the Plaintiff is paying the assessment to the BBMP Authorities and to 32 OS No.26410/2014 substantiate the same, the Plaintiff has produced property tax receipts, receipts, electricity bill, property extract, katha Certificate and katha extracts endorsement issued by the BBMP Authorities, which are marked as Ex.P.10 to Ex.P.27, Ex.P.31, Ex.P.36 to Ex.P.38 and Ex.P.42.
On careful perusal of these documents, it is seen that, these documents are only the revenue records. Mere entry in the revenue records will not confer any title to the Plaintiff and on the basis of the said entries, the Plaintiff cannot be termed as the owner of the Suit Schedule Property. I find force to my above view, as per the decision of the Hon'ble Apex Court, in the case of State of Himchal Pradesh V/s Keshav Ram, reported in AIR 1997 SC 2181, wherein it is held that:
"Entry in a Revenue record or papers, by no stretch of imagination, can form the basis for declaration of title".
Further as per the decision of the Hon'ble Apex Court, in the case of Swarni V/s Smt. Indra 33 OS No.26410/2014 Kaur, reported in AIR 1996 SC 2823, wherein it is held that;
"Mutation of name in revenue records, effect, held does not create or extinguish the title nor has any presumptive value on title, it only entitles the person concern to pay the land revenue".
Thus, it can be concluded that, the revenue records/documents produced by the Plaintiff at Ex.P.10 to Ex.P.27, Ex.P.31, Ex.P.36 to Ex.P.38 and Ex.P.42, are the out come of the Agreement dtd.12.04.1992Ex.P.46 and GPA dtd.23.07.1992 Ex.P.8. Further, on the basis of the said revenue records title over the Suit Schedule Property, muchtheless to an extent of an area measuring 22ft X 40feet, out of the Suit Schedule Property, cannot be conferred on the Plaintiff, on the basis of the said revenue records.
Thus, viewing the matter from every angle, it can be said that the Plaintiff has failed to prove her title over the Suit Schedule Property, measuring 22 feet X 40feet, muchtheless on the basis of the 34 OS No.26410/2014 Agreement dt.12.04.199Ex.P.46 and GPA dtd. 23.07.1992Ex.P.8.
Hence, I ANSWER ADDL. ISSUE NO.1 IN THE NEGATIVE.
17. Withregard to Possession of the Plaintiff over the Suit Schedule Property:
The Plaintiff contends that, she is in Possession of the Suit Schedule Property since from 12.04.1992, when she acquired the said property from A. Susainathan.
The Defendant in her Written Statement, more specifically, Para Nos.13 to 15, has stated that, the Plaintiff has constructed a toilet and a staircase abetting the wall of her house and the same was demolished by the Bruhat Bengaluru Mahanagara Palike authorities, on the complaint filed by her.
18. The Plaintiff has produced the notice issued by the Bruhat Bengaluru Mahanagara Palike Authorities on 22.08.2009, which is marked as Ex.P35. As per this document, the Bruhat Bengaluru 35 OS No.26410/2014 Mahanagara Palike, authorities have visited the site/ Suit Schedule Property and have noticed that, the Plaintiff has unauthorizedly constructed latterin and staircase, in her property.
19. The Defendant has also produced the sketch prepared by the Bruhat Bengaluru Mahanagara Palike, authorities at Ex.D12, noting the encroachment as per Ex.D12(A). As per the said sketch, the measurement of the Suit Schedule Property is shown as East to West 21 feet 6 inches and North to South:40 feet. Further the BBMP Authorities have shown the constructed portion of the Plaintiff building, the staircase, the passage, measuring 8 feet 8 inches in the front eastern side of the Suit Schedule Property and 3 feet 3 inches on the rare eastern side of the Suit Schedule Property, in the said sketch Ex.D.12.
The Defendant has produced the notice cum order issued by the Bruhat Bengaluru Mahanagara Palike Authorities to the Plaintiff on 03.09.2009, U/Sec. 321 (1) of KMC Act, at Ex.D.13; Order U/Sec. 321(2) of KMC Act at Ex.D.14; and final order U/Sec.
36 OS No.26410/201432(3) of KMC Act at Ex.D.15. As per these documents, Ex.D.13 is dtd.03.09.2009, Ex.D.14 is dtd.03.09.2009 and Ex.D.15 is dtd. 01.12.2009. These documents go to show that, the staircase, the bathroom and latrine and the compoundwall dividing the property of the Plaintiff and the Defendant were in existence till 01.12.2009.
Ex.D.12 has come into existence prior to the demolition of the staircase; the bath room and latrine; and the compound wall. As per the Plaintiff, demolition of the staircase; the bath room and latrine; and the compound wall, was done by the Bruhat Bengaluru Mahanagara Palike Authorities during the pendency of the suit. So, it goes to show that, the said staircase and the bathroom and latrine built by the Plaintiff, was in existence as on the date of filing of the suit.
All these documents have come into existence prior to the date of filing this suit, which suggest that, the Suit Schedule Property measures East to West:22ft and North to South: 40feet.
37 OS No.26410/2014So, the Plaintiff has proved that, she is in Possession of the Suit Schedule Property, as on the date of filing of the suit.
Hence, I ANSWER ISSUE NO.1 IN THE
AFFIRMATIVE.
20. ADDL. ISSUE NO.2:
The Plaintiff by getting amended her Suit Plaint contends that, the Defendant by getting rectified the records pertaining to her property with the Bruhat Bengaluru Mahanagara Palike, Authorities, withregard to the measurements, on reducing the measurements of the Plaintiff's property from 22ft X 40ft to 20ft X 40ft, is trying to lay a false claim over the said portion and trying to encroach over the said property.
The Defendant in her Written Statement filed prior to the Plaintiff getting amended her Suit Plaint has contended that, her property measures 30ft X 40ft, and the Plaintiff is clandestinely encroached 2 ft X 40ft over her property.
38 OS No.26410/201421. The Learned Counsel for the Plaintiff would contend that, on taking undue advantage of the dismissal of the suit bearing O.S.No.5898/2009, filed by the Plaintiff, the Defendant has got rectified/reduced the measurements of the property of the Plaintiff, from 22ft X 40ft into 20ft X 40ft, thereby showing reduced measurement of the Plaintiff's property to the extent of 2ft X 40ft.
22. The Plaintiff contends that, initially the Suit Schedule Property was coming within the jurisdiction of Byatagunttapalya @ Ramaswamy Palya, Lingarajapura Hobli, in the year 2005. The said property has come within the jurisdiction of the Bruhat Bengaluru Mahanagara Palike, Authorities.
23. Under this issue, 5 aspects are to be looked into:
a) with regard to location of the property of the Plaintiff and Defendant;
b) with regard to demolition of the staircase, bathroom and latrine;39 OS No.26410/2014
c) withregard to reduction of the measurements of the property belonging to the Plaintiff, in the records of the BBMP Authorities;
d)with regard to construction of a compound wall inbetween the property of the Plaintiff and the Defendant; and
e) erection of temporary staircase.
24. Coming to the 1st aspect with regard to location of the property of the Plaintiff and Defendant.
24.01. The Defendant has produced the photograph Ex.D21. Ocular evidence on this point can been seen as per the cross examination of DW1 Page No.18, para No.5, which reads as under:
"Green colour wall building seen in Ex.D21 is my house and blue colour building seen in Ex.D21 is the house belonging to the Plaintiff".
As per this evidence Defendant/ DW1 contents that, the green colour wall building seen in Ex.D21 belongs to her and the blue colour building seen in the said photo is the house belonging to the Plaintiff .
40 OS No.26410/201424.02. Further as per the cross examination of the DW1 at page NO.19, Para No.3, which reads as under.:
"The cement red colour floor seen in Ex.D21 is done by the Plaintiff. It is false to suggest that since, the said area belongs to the Plaintiff, the Plaintiff had done the floor with red colour cement. It is false to suggest that, I do not have any right over the red colour cement flooring shown in Ex.D21".
As per this evidence, Defendant/DW.1 contends that, red colour cement floor seen in Ex.D21 is done by the Plaintiff, but the Plaintiff denies the suggestion that, the said area belongs to the Plaintiff, so the Plaintiff has done the said flooring with red colour cement. Further DW/1 denies that, she has no right over the red colour cement flooring seen in Ex.D21.
24.03. As per these documentary evidence, as well as ocular evidence, it can be said that, the location of the property of the Defendant and the Plaintiff is not in dispute, but what is in dispute is the area, wherein red colour cement flooring is done by the Plaintiff, is in dispute. The Plaintiff claims 41 OS No.26410/2014 that, it belongs to her, whereas the Defendant claims that it belongs to her.
25. Coming to the second aspect withregard to demolition of staircase, bathroom and latrine.
25.01. The Plaintiff has produced the property extract of the property bearing No.2346/1/4, for the years 20022003 at Ex.P.31. As per this document, it is seen that, name of the Plaintiff is shown as the occupant of the said property and the measurement of the said property is shown as 22ft X 40ft.
25.02. Further, the Plaintiff has produced the assessment notice issued by the Bruhat Bengaluru Mahanagara Palike Authorities dtd.20.06.2002 at Ex.P.28. As per this document, assessment order is done inrespect of the Suit Schedule Property, showing the measurements as 22ft X 40ft. So, as per this document, the Bruhat Bengaluru Mahanagara Palike Authorities admit that the measurements of the Suit Schedule Property as on the date of order i.e., 20.06.2002 is 22ft X 40ft.
42 OS No.26410/201425.03. The Defendant has produced the sketch said to have been prepared by the Bruhat Bengaluru Mahanagara Palike authorities, on visiting the spot as per Ex.D12. As per this sketch, the Bruhat Bengaluru Mahanagara Palike, authorities have shown the staircase within the property of the Plaintiff, having total measurement as East to West:21 feet 6 inches. So also, as per the said sketch it can be seen that, the Bruhat Bengaluru Mahanagara Palike authorities have shown the passage measuring 3 feet 3 inches (which is seen in Ex.D21 photograph, covered by red colour cement flooring), within the property of the Plaintiff.
So also, as per Ex.D.12 the sketch prepared by the BBMP authorities also depict the measurements of the Suit Schedule Property, as East to West: 21ft 6inches and North to South: 40feet.
25.04. The Learned Counsel for the Plaintiff would contend that, the sketch prepared by the Bruhat Bengaluru Mahanagara Palike authorities has a presumptive value U/Sec. 83 of the Indian Evidence Act and has placed his reliance on the 43 OS No.26410/2014 decision of the Rambhau Ganapati Nagpure V/s Ganesh Nathuji Warbe & Others, reported in (2019) 4 SCC (Civ) 321, wherein it is held that:
"Map was prepared on the directions of the SDO. Nodoubt after the map was prepared the order of the SDO directing for the preparation of the map was setaside. That will not effect the evidentiary value of the map which depicts the position of the boundaries, as per the holdings of the parties. This map was prepared by the Revenue Authorities and not by the private body".
Applying the above preposition of law, to the instant case at hand, firstly it is seen that, Ex.D12 is produced by the Defendant. Secondly, Defendant admits that, the Bruhat Bengaluru Mahanagara Palike authorities have conducted the spot inspection, by issuing notices to both the parties and on their spot inspection, they have got prepared the said sketch. So, presumptive value is attached to the said SketchEx.D12.
25.05. Coming to the ocular evidence on this point, more specifically, crossexamination of PW.1, 44 OS No.26410/2014 at Page No.26, Para No.1, Line Nos.1 to 17 and Para No.2, which read as under;
".... It is true to suggest that I have constructed the latrine attached to the bedroom of the Defendant. It is false to suggest that the Defendant had intimated me that, due to seepage of waste waster from my latrine, her wall is damaged and therefore to repair the said wall. It is false to suggest that since, I had failed to carryout the repairs, the Defendant was constrained to complain the same to the BBMP Authorities. It is true to suggest that BBMP authorities had issued a notice to me on 01.04.2009, as per Ex.P33. It is true to suggest that after issued Ex.P33 Notice. I do not know whether BBMP Authorities have conducted a spot inspection. I do not know whether BBMP authorities have prepared sketch on conducting spot inspection. It is false to suggest that on conducting mahazar, the BBMP authorities have earmarked an area measuring 2 feet x 40 feet as an encroached area by me, wherein staircase and latrine is located.
It is true to suggest that the Assistant Executive Engineer, has observed about construction of building by me on mentioning the deviations. (The said document is annexed as annexureI to the spot Inspection Mahazar). (Since, 45 OS No.26410/2014 the witness is not the party to the said document, the said document is not marked.) It is true to suggest that the BBMP Authorities have observed deviations of the building constructed by me".
As per this evidence Plaintiff /PW.1 affirms the suggestions made to her that, she has constructed the latrine attached to the bedroom of the Defendant, but denies that the Defendant had intimated her about the seepage of waste water from the said latrine, damaging her wall and requested to make/carryout repair abutting the said wall. Further PW.1 denies the suggestion made to her that, she has failed to carry out the said repairs, which has forced the Defendant to complain the same to the Bruhat Bengaluru Mahanagara Palike Authorities. Further PW.1 admits that, the Bruhat Bengaluru Mahanagara Palike, Authorities had issued notice to her on 01.04.2009, as per Ex.P.33 and have conducted a spot inspection, but pleads her ignorance about preparing sketch by the BBMP Authority by conducting the spot inspection. Further PW.1 denies that, the BBMP Authorities have 46 OS No.26410/2014 earmarked an area measuring 2ft X 40ft, as an encroached area by her, wherein staircase and latrine is located.
Further PW.1 affirms the suggestions made to her that the A.E.E. has observed about the construction of the building by her on mentioning the deviations.
Further, as per the Certificate of PW.1, at Page No.27, Para No.2, last line till Page No.28, Para No.1.
"....... It is true to suggest that on 20.09.2014, the BBMP Authorities have demolished the staircase and latrine located on 2 feet setback. Witness volunteers that demolition of the staircase and latrine was conducted by the BBMP authorities without issuing notice to her. It is false to suggest that as per the mahazar drawn by the BBMP authorities on spot inspection 2 feet setback situated towards the eastern side of the property belongs to the Defendant".
As per this evidence, Plaintiff/PW.1 affirms the suggestion made to her on behalf of the Defendant that, on 20.09.2014 the BBMP Authorities have demolished the staircase and latrine located on the 2ft setback, but she contends that the said 47 OS No.26410/2014 demolition was conducted by the BBMP Authorities without issuing notice to her. Further she denies the suggestion made to her that, as per the mahzar drawn by the BBMP authorities on spot inspection 2 feet setback is situated towards the eastern side of her property, belonging to the Defendant.
25.06. Thus, on the basis of the above evidence both documentary and oral, it can be concluded that, the staircase, bathroom and latrine, which were demolished by the BBMP authorities were available, within 2ft setback, which is located towards the eastern side of the Plaintiffs house and the western side of the Defendant house.
26. Coming to the third aspect withregard to reduction of the measurements of the property of the Plaintiff in the records maintained by the BBMP authorities.
26.01. The Plaintiff has produced the katha extract dtd.08.09.2015 at Ex.P.36. As per this document, the name of the Plaintiff is shown as the holder of the property bearing PID No.872703 and 48 OS No.26410/2014 the measurements of the said property is shown as 800Sq.ft. The Learned Counsel for the Plaintiff by depicting the said document would contend that, the BBMP authorities have reduced the measurement of the property of the Plaintiff from 22ft X 40ft = 880 Sq.ft to 20 ftX 40ft = 800Sq.ft.
26.02. On perusal of this document, it is seen that no any remarks have been stated by the BBMP authorities for reduction of the measurements pertaining to the Suit Schedule Property in Ex.P.36.
26.03. The Learned Counsel for the Plaintiff would contend that, on dismissal of the suit O.S.No.5898/2009 the Defendant by threatening the BBMP Authorities has got reduced the measurements.
26.04. Further the Learned Counsel for the Plaintiff would invite the attention of this Court to Ex.P.38notice issued by the BBMP authorities on 12.11.2014, wherein the said authorities have intimated rectification of the measurements of the property of the Plaintiff to 20ft X 40ft, by referring 49 OS No.26410/2014 the Judgment passed in O.S.No.5898/2009 dtd.12.08.2014.
26.05. So also, on perusal of the Judgment and Decree passed in O.S.No.5898/2009 Ex.D.16 and Ex.D.17, it is seen that neither the Court has held that the Suit Schedule Property measures East to West: 22ft and North to South: 40ft, nor it measures East to West: 20ft & North to South: 40ft.
26.06. The BBMP authorities have not made it clear, as to on the basis of which document, they have rectified the measurements of the Suit Schedule Property. The Plaintiff could have agitated her rights assailing the said acts of the Bruhat Bengaluru Mahanagara Palike, authorities before the Appellate jurisdiction of the said authorities, withregard to the measurements. No documents is forth coming from the side of the Plaintiff.
27. The fourth aspect withregard to construction of the compound wall:
50 OS No.26410/201427.01. As per the averments of the Plaintiff, more specifically, in Para No.17A of the Suit Plaint wherein the Plaintiff has contended that, "17A ........ the Defendant had already putup her construction of Residential House Premises on the eastern side of the Plaintiff property and had also constructed a compound wall, which was existing even prior to the Plaintiff having purchased the suit Site and entered Possession. .....".
As per the said pleadings the Plaintiff admits that, compound wall situated inbetween the property of the Plaintiff and the Defendant was constructed and was in existence, prior to the Plaintiff having purchased the Suit Site and entered into Possession of it.
27.02. Coming to the ocular evidence on this point, more specifically, crossexamination of PW.1 at Page No.25, Para No.2, which reads as under: "It is true to suggest that towards the eastern side of my property, i.e., towards the western side of the property of the Defendant, the father of the Defendant had constructed a compound wall".
As per this evidence, the Plaintiff/PW.1 affirms the suggestion made to him on behalf of the 51 OS No.26410/2014 Defendant that, towards eastern side of his property, i.e., towards the western side of the property of the Defendant, the father of the Defendant had constructed a compound wall.
Further as per the crossexamination of DW.1 at Page No.17, Para No.2, which reads as under: "It is false to suggest that wall existing inbetween my property and the property of the Plaintiff, pertains to me and the same was within the measurements of my property. It is false to suggest that a compound wall inbetween my property and the property of the Plaintiff was constructed by my father, inorder to get protected our property."
As per this evidence, the Defendant/DW.1 denies the suggestion made to her on behalf of the Plaintiff that, wall existing inbetween her property and the property of the Plaintiff pertains to her and the same is within the measurements of her property. Further she denies that, the compound wall inbetween her property and the property of the Plaintiff, was constructed by her father, inorder to get protected their property.
52 OS No.26410/2014Further as per the crossexamination of DW.1 at Page No.18, Para No.3, which reads as under: "It is true to suggest that the compound wall demolished by the BBMP authorities was attached to the compound wall facing towards the road seen in Ex.D20."
As per this evidence, the Defendant/DW.1 affirms the suggestion made to her on behalf of the Plaintiff that the compound wall which is demolished by the BBMP authorities was attached to the compound wall facing towards the road, seen in Ex.D.20.
Further, as per the crossexamination of DW.1 at Page No.20, Para No.3, which reads as under: "It is false to suggest that my father had constructed compound wall in order to bifurcate the property bearing No.4 belonging to the Plaintiff and property No.5 to me. Witness volunteers that her father had constructed the said compound wall, which is demolished."
As per this evidence the Defendant /DW.1 denies the suggestion made to her on behalf of the Plaintiff that, her father had constructed the compound wall inorder to bifurcate the property 53 OS No.26410/2014 bearing No.4, belonging to the Plaintiff and the property bearing No.5, belonging to her. But DW.1 voluntarily contends that, her father had consturcted the compound wall, which is demolished.
Further, as per the crossexamination of DW.1 at Page No.20, Para No.2, which reads as under: "It is false to suggest that I am duty bound to restore the compound wall situated inbetween my property and the property of the Plaintiff and which was demolished at my instance."
As per this evidence, Defendant/DW.1 denies the suggestion made to her on behalf of the Plaintiff that, she is dutybound to restore the compound wall situated inbetween her property and the property of the Plaintiff, which is demolished at her instance.
27.03. Thus, as per the above oral and documentary evidence, it can be concluded that, a compound wall was in existence inbetween the property of the Plaintiff and the Defendant; the said compound wall was constructed by the father of the Defendant; the said compound wall is demolished by the BBMP authorities.
54 OS No.26410/201428. The fifth aspect withregard to erection of temporary staircase:
28.01. The Learned Counsel for the Plaintiff would contend that, since the staircase was demolished, the Plaintiff is unable to go to the schedule premises by using the ladder, so an application was filed at I.A.No.IV/2017 U/Sec. 151 of CPC on 10.07.2017 praying to permit the Plaintiff to put a metal spiral staircase (temporary staircase), till pending disposal of this suit.
My Learned Predecessor in Office on hearing both the sides, was pleased to allow the said application in part and permitted the Plaintiff to put up a temporary metal movable staircase, pending disposal of this suit.
28.02. Coming to the ocular evidence on this point, more specifically, crossexamination of DW.1 at Page No.18, Para No.4, which reads as under: 55 OS No.26410/2014 "It is true to suggest that fabricated M.S steel temporary staircase seen in Ex.D22Photograph, is erected by the Plaintiff, on obtaining order on IA No.4/17. It is true to suggest that the Plaintiff has erected temporary staircase, in the place where earlier staircase was, prior to its demolition."
As per this evidence, it is seen that, Defendant/DW.1 affirms the suggestion made to her on behalf of the Plaintiff that, fabricated MS steel temporary staircase is erected by the Plaintiff on obtaining orders on I.A.No.IV/2017, as can be seen in Ex.D.22positive photographs. Further, Defendant/DW.1 admits that, the said temporary staircase is erected in the place where earlier staircase was available, prior to its demolition.
28.03. On perusal of Ex.D.22positive photograph produced by the Defendant, it can be seen that, a fabricated MS steel staircase is put. As per the above ocular evidence of the Defendant, wherein she admits that, the said temporary staircase is fixed in the place where earlier staircase was available, prior to its demolition. Further the 56 OS No.26410/2014 said temporary staircase put by the Plaintiff is neither abutting the wall of the Defendant nor is projecting on the wall of the Defendant, as can be seen as per Ex.D.22photograph produced by the Defendant. Erection of the said temporary MS steel staircase, will not cause any damage to the property of the Defendant. Under such circumstances, this Court is of the considered opinion that inorder to minimize the litigation inbetween the parties, it is necessary to permit the Plaintiff to maintain the said temporary staircase, as it is and on the same place, without damaging and disturbing the wall of the Defendant. The Plaintiff shall not cause any damage to the wall of the Defendant, from her side.
Having observed so, the order passed by this Court on I.A.No.IV/2017 is required to be made absolute.
29. Though the Plaintiff would contends that, the Defendant has encroached over her property and on the other hand, the Defendant contended that, the Plaintiff has encroached over her property, but 57 OS No.26410/2014 neither the Plaintiff has placed any evidence either oral or documentary, to show that, the Defendant is trying to encroach upon an area measuring 2ft X 40 ft in her property, nor the Defendant has placed any evidence either oral or documentary to show that the Plaintiff is trying to encroach upon an area measuring 2ft X 40ft.
29.01. The Learned Counsel for the Defendant would contend that, it is for the Plaintiff to prove the same as per Issue No.2, and if she fails to prove the same, then she has to fail under the said Issue and has placed his reliance on the decision of the Hon'ble High Court of Karnataka, in the case of Smt. Sumitra Bai V/s P. Siddesh and Nagaraju, reported in ILR 2014 Kar 1311, wherein it is held that:
"When the Plaintiff or the Defendants failed to prove their case pleaded on the basis of evidence on record, the Court has to draw inference that the Plaintiff has to fail, as initial burden has not been discharged, by him".
58 OS No.26410/2014Thus, the Plaintiff has failed to prove the alleged encroachment said to have been made by the Defendant over her property. So the Plaintiff has to fail.
Hence, I ANSWER ADDL. ISSUE NO.2 IN THE NEGATIVE.
30. ADDITIONAL ISSUE NO.3:
Plaintiff has sought for the relief of Declaration to declare her as the rightful owner of the the Suit Schedule Property, measuring 22ft X 40ft, on the basis of the GPA dated 23.07.1992ExP8 and that there is no encroachment made by the Plaintiff to the extent of 2ft X 40ft, as contended by the Defendant.
As already held under Addl Issue No 1 that, the Plaintiff has failed to prove that she is the owner of the Suit Schedule Property, measuring 22ft X 40ft, as the ownership of the Plaintiff cannot be declared on the basis of incomplete contract or unconcluded contract, either under Agreement dated 12.04.1992 ExP46 or GPA dated 23.07.1992ExP8.59 OS No.26410/2014
Secondly, the prayer of the Plaintiff to declare that she has not encroached upon the property of the defendant to the extent of 2ft X 40ft, as contended by the Defendant, cannot be granted, as it is in the nature of a negative relief.
Thus Plaintiff is not entitled for the relief of Declaration, as claimed by her under Prayer 1(a) of the Suit Plaint. Hence, I answer ADDL ISSUE NO.3 IN THE NEGATIVE.
31. ADDL ISSUE NO. 4:
On the basis of the evidence, both documentary and ocular evidence, it is concluded that,
a) the staircase putup by the Plaintiff, was in sheer deviation of the provisions of the Karnataka Municipal Corporation Act, as has been held by the BBMP Authorities, which verdict has attend finality;
b) Demolition of the staircase, bathroom and latrine, was done by the BBMP Authorities, which act is not assailed by the Plaintiff, before the Appropriate Forum of law; and 60 OS No.26410/2014 this Court gets no jurisdiction, to sit as an Appellate Court, on the orders passed by the BBMP Authorities under the KMC Act, muchtheless U/Sec 321(3) of KMC Act;
c) Compound wall available prior to filing of this suit, inbetween the property of the Plaintiff and the Defendant, was constructed by the father of the Defendant. So it cannot be ordered to be got restored.
If the Plaintiff intends to construct the Compound wall/boundary wall inbetween her property and the property of the Defendant, then she has to do so, by adopting due process of law.
As contended by the Learned Counsel for the Plaintiff that the Plaintiff had filed application with the BBMP Authorities for grant of sanction, to construct the compound wall, but the said authorities have not considered it, till date. It is needless to mention that, under such circumstances, the Plaintiff can adopted the procedure, as prescribed under the KMC Act and it is believed that the BBMP Authorities will consider the said request, as per law;
61 OS No.26410/2014d) withregard to reduction of the measurements of the property belonging to the Plaintiff, in the records of the BBMP Authorities, it is again needless to state that the Plaintiff can take recourse to law, as prescribed under the KMC Act;
d) Lastly, since the Plaintiff has failed to prove the alleged encroachment.
So the relief of mandatory Injunction cannot be granted to Plaintiff, as prayed under Prayer 1(b) of the Suit Plaint.
Hence I answer ADDL ISSUE NO.4 IN THE NEGATIVE.
32. ISSUE NO.2:
The Plaintiff contends that, the Defendant is trying to claim an area measuring 2ft X 40ft passing available inbetween the her property and the property of the Defendant. And further the Defendant is trying to interfere with the possession of the Plaintiff over the said passage.62 OS No.26410/2014
32.01. The Plaintiff has proved that she is in possession of the Suit Schedule Property, measuring 22 ft X 40 ft.
Then there exists an apprehension of interference, coupled with the intention of the Defendant, which can be gathered on the basis of the ocular evidence, more specifically, cross examination of DW1 at Page No 22, para Nos 2 & 4, which read as under:
"As per me, my father was having 2 feet space beyond the compound wall constructed by him.
I do not have 2 feet space beyond the compound wall which was demolished by the BBMP authorities."
As per this evidence, the Defendant/DW1 contends that her father was having 2 feet space beyond the compound wall.
This shows the intention of the Defendant, to claim 2 feet beyond the compound wall.
32.02. Since the act to be apprehended by the Plaintiff and intended by the Defendant, must be such that, if completed, shall give a ground for 63 OS No.26410/2014 action. There must be a foundation for the exercise of jurisdiction. Hence, I am of the firm opinion that the Plaintiff has succeeded to prove that, there exists, a prospect or apprehension and belief, coupled with intention of the Defendant, sought to be exhibited, if completed, will give rise to a cause of inflicting injury or receiving injury, to the Plaintiff. Hence, the Plaintiff has succeeded to prove the interference. I find support to my above view, as per the decision of the Hon'ble High Court of Karnataka reported in ILR 1978 Page 1560; in the case of Gopal M Hegde & Ors Vs U F M Narasimha Ganap Bhat & Ors, wherein it is held that, "When the Plaintiff proves the intention on the part of the defendants, to do an act or existence of the act, which in the opinion of the Court, if completed, give ground of action, there is foundation for the exercise of jurisdiction".
32.03. Thus the Plaintiff has proved the interference, said to have been caused by the 64 OS No.26410/2014 Defendant. For the above said reasons, I answer ISSUE NO.2 IN THE AFFIRMATIVE.
33. ISSUE NO.3: When the Plaintiff has proved her possession over the Suit Schedule Property, as well as she has proved the interference by the Defendant inrespect of her Possession over the Suit Schedule Property. I am of the clear opinion that the Possession of the Plaintiff is to be protected ,under the law.
Therefore, I am of the considered opinion that looking at, from any point of view, the Plaintiff is entitled only for the relief of Injunction against interference.
For the above said reasons, I answer ISSUE NO. 3 IN THE AFFIRMATIVE.
34. ISSUE NO. 4 & ADDL ISSUE NO. 5:
For having answered Issue Nos.1 to 3 in the Affirmative; and Addl.Issue Nos.1 to 4 in the Negative, I proceed to pass the following:65 OS No.26410/2014
ORDER Suit of the Plaintiff is hereby Decreed inpart.
In the consequences the
Defendant, her agents, her
representatives, or anybody acting on her behalf is hereby restrained by way of Permanent Injunction from interfering with the possession of the Plaintiff over the Suit Schedule Property.
Reliefs of Declaration and Mandatory Injunction are hereby Rejected.
Looking to the special facts of the case, both the parties are directed to bear their own respective costs.
Draw Decree Accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 08th day of February, 2021.) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 66 OS No.26410/2014 : Suit Schedule Property:
All that piece and parcel of the property NO.4, Khatha No.2346/1, formed in survey No.2 of Byataguttapalya, alias Ramaswamy Palya, presently bearing Municipal House No.795, Poojappa Layout, 2nd Cross, Ramaswamy Palya, Kammanahalli, Bengaluru560 033, measuring East to West: 22feet, North to South: 40feet and bounded on the:
East by : Site No.5;
West by : Site No.3;
North by : Patel gullappas land;
South by : 20feet road.
[AbdulRahiman. A.Nandgadi]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH73)
67 OS No.26410/2014
ANNEXURES:
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Mrs. Saraswathi.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF: Ex.P.1: Original Registered Sale Deed dtd.02.12.1971. Ex.P.2: Death Certificate of T.D. Nateshan. Ex.P.3: Original Registered Agreement of Sale Dated:19.05.1983.
Ex.P.4: Original Affidavit. Ex.P.5: Original Affidavit. Ex.P.6: Affidavit dt.14.02.1991. Ex.P.7: General Power of Attorney Holder dt. 14.02.1991. Ex.P.8: General Power of Attorney Holder Dtd.
23.07.1992.
Ex.P.9: One receipt dtd.11.04.2002. Ex.P.10 to Ex.P.13: Four property tax paid receipts. Ex.P.14 to Ex.P.22: Nine receipts. Ex.P.23: Acknowledgement for receipt of Assessment for years 201011.
Ex.P.24 & Ex.P.25: Two tax paid receipts. Ex.P.26 & Ex.P.27: Electricity requisition and electricity bill.
Ex.P.28: Notice issued by the BBMP. Ex.P.29: Letter issued by the assistant authorities.
Revenue Officer.
Ex.P.30: Certificate dtd.15.11.2002 issued by the BBMP, Authorities.
Ex.P32: Extract from the assessment registered for the years 200303.
Ex.P33: Requisition dtd.16.02.2009. Ex.P34: Reply dtd.06.04.2009.
Ex.P35: Letter issued by the BBMP Authorities dtd.22.08.2009.
68 OS No.26410/2014Ex.P36: Khatha extract.
Ex.P37: Khatha certificate.
Ex.P38 and Ex.P38(A): Endorsement dtd.10.11.2014 issued by the BBMP Authorities with postal envelope.
Ex.P39: Complaint dtd.25.04.2016. Ex.P40: Complaint dtd.25.04.2016 given to Medical Officer.
Ex.P41: Reply dtd.16.04.2015.
Ex.P42: Endorsement given by BBMP dtd.10.02.2016. Ex.P43 to Ex.P46: Agreements of Sale dtd.06.02.1988.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: H. Sushila Mary.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D1: Certified copy of the Sale Deed dtd.23.09.1967.
Ex.D2: Certified copy of the Sale Deed dtd,09.04.1970.
Ex.D3 & Ex.D4: Two Encumbrance certificates. Ex.5 & Ex.D6: Khatha Certificate. Ex.D7: Property tax paid receipt. Ex.D8: Letter issued by BESCOM. Ex.D9 & Ex.D9(A): Letter issued BWSSB alongwith postal envelop.
Ex.D10 to Ex.D12, Ex.D12(A): True copies of the notices issued U/S 447 of KMC Act, alongwith sketch.
Ex.D13: Copy of the notice issued U/S 321(1) of KMC Act.69 OS No.26410/2014
Ex.D14: Copy of the notice issued U/S 321(2) of KMC Act.
Ex.D15: Copy of the Order issued U/S 321(3) of KMC Act.
Ex.D16 & Ex.D17: certified copy of the Judgment and Decree passed In OS No.5898/2002. Ex.D18: True copy of the Gazette notification dtd.07.08.2013.
Ex.D19 to Ex.D23: Four positive photographs with CD.
Ex.D24 and Ex.D25: Two endorsements. Ex.D26: Original Will ddtd.29.05.2006. Ex.D27: Death Certificate of D. Harry. Ex.D28: Death Certificate of Gabriel Kenneth. Ex.D29: Certified copy of IA No.4/17 alongwith Affidavit and Orders.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)