Bangalore District Court
Sri. Ajaz vs Smt. Kalai Vani on 19 February, 2022
KABC010017762017
Presented on : 20.01.2014
Registered on : 20.01.2017
Decided on : 19.02.2022
Duration : 5 years 29 days
IN THE COURT OF THE LXV ADDL. CITY CIVIL &
SESSIONS JUDGE, AT BENGALURU (CCH-66)
PRESENT
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 19th day of February, 2022
O.S.No.549 / 2017
PLAINTIFF: Sri. Ajaz,
S/o. Late Mohidden Khan,
Aged about 52 years,
R/at No.G68, Hombegowda Slum,
Hosur Main Road, Bengaluru-560 011.
M/s. Subhash & Rajesh Associates, Adv.)
- VS -
DEFENDANTS :- 1. Smt. Kalai Vani,
W/o. Nagaraju,
Aged about 45 years,
House No.10
2. Sri. Mannu,
S/o. Lakshaman,
Aged about 45 years,
House No.163.
3. Smt. Saroja,
W/o. Govindan,
2 O.S.No.549 of 2017
Aged about 60 years,
House No.26.
4. Sri. Pandyan,
S/o. Balanagganna,
Aged about 45 years,
House No.48.
All are r/at Hombegowda Nagara Slum,
Hosur Main Road,
Bengaluru-560 027.
5. Karnataka Slum Clearance Board,
No.55, Risaldhar Street,
Sheshadripuram, Bengaluru-560 020.
Rep. by its Commissioner.
(Sri.N.S.Rayappa, Adv. for D1 to D4
Sri.D.Venugopal, Adv. for D5)
)
Date of Institution of the suit 20.01.2017.
Nature of the Suit (suit for pronote, Injunction suit.
Suit for declaration & possession,
Suit for injunction, etc.):
Date of the commencement of 09.02.2018.
recording of the Evidence:
Date on which the Judgment was 19.02.2022.
pronounced:
Year/s Month/s Day/s
Total duration:
05 - 29
***
JUDGMENT
This suit is filed by the plaintiff against the defendants to restrain them and their men or any person/s acting under them from interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule property.
3 O.S.No.549 of 20172. The brief facts of the case are as under:- The plaintiff is the agreement holder and in peaceful possession of the suit schedule property by virtue of registered agreement of sale dated 07.10.2015 from its owner Sri.Shahid Mohsin S/o. Late S.A.Salim and possession letter dated 07.10.2015 from said S.A.Salim. That, ever since from the date of sale agreement and possession letter of the suit schedule property, the plaintiff is in peaceful possession and enjoyment of the suit schedule property. That, originally, the suit schedule property was owned by one Sri.M.Nanjundappa, who acquired the same vide sale deed dated 08.09.1971 from its earlier owners one Rama and Chikkayallappa. Later, said Nanjundappa in turn, sold the suit schedule property to the plaintiff's vendor Mr.Shahid Mohsin vide registered absolute sale deed dated 24.02.2000. Since the plaintiff is unable to arrange the sale consideration, he could not register the suit schedule property in his name and he requested his vendor to that effect and extended the sale agreement orally and continued with the possession of the suit schedule property.
3. That, during 3rd week of January 2016 i.e., on 19.01.2016 the defendants along with their persons made an attempt to interfere and to take measurement of the suit schedule property without having any right, title or interest and threatened the plaintiff with dire consequences. Immediately, the plaintiff rushed to the jurisdictional Police and lodged a complaint against them. Again on 31.12.2016 the defendants along with their supporters with copies of some concocted documents, threatened the plaintiff that he is required to vacate. Again, the plaintiff approached the jurisdictional Police, 4 O.S.No.549 of 2017 but there was no response as the matter is civil in nature. The cause of action arose in the 3rd week of January 2016 and on 31.12.2016. Hence, this suit.
4. The suit summons were issued to the defendants. The defendants have appeared through their counsel. Initially, the suit was filed against the defendant Nos.1 to 4. Subsequently, the defendant No.5 has been impleaded. The defendant Nos.1 and 5 have filed separate written statement.
5. The defendant No.1 in his written statement has contended that, the suit is not maintainable. The plaintiff has filed a false case against the defendants, who are nothing to do with the suit schedule property and the plaintiff has no locus standi to file this suit as the suit schedule property belongs to Karnataka Slum Development Board. It is further contended that, neither the plaintiff nor his alleged vendor were at no point of time in possession of the suit schedule property. There was no occasion for the defendants to trespass into the suit schedule property. There is no cause of action to file this suit. The suit is barred by limitation. Court fee paid by the plaintiff is insufficient.
6. The defendant No.5 in the written statement has contended that the suit is bad in law and unsustainable. The suit is not maintainable as the suit schedule property in question is acquired by the Government in accordance with law. The plaintiff has no locus standi to file this suit as the suit schedule property belongs to defendant No.5 Karnataka Slum Development Board and the plaintiff is wrongly claiming the same to grab the property. The plaintiff is not in possession of 5 O.S.No.549 of 2017 the suit schedule property. Hence, question of trespassing over the suit schedule property by the defendants does not arise. There is no cause of action to file this suit. The suit is barred by limitation. The Court fee paid is insufficient.
7. Both defendant Nos.1 and 2 have contended that the Government of Karnataka by its Notification dated 21.04.1979 vide notification No.HUD 303 MCS 78 had notified under Sub-Sec.(1) of Sec.3 of Karnataka Slum Areas (Improvement and Clearance) Act, 1973 propose to declare each of the said area to be a slum area in respect of Sy.No.22 measuring 28 guntas and Sy.No.24 measuring 8 guntas totally 36 guntas of Arakempanahalli which is Hombegowdanagar Slum, Bengaluru and on 27.03.1989 declared the above said area as slum area under Sub-Sec.(1) of Sec.3 of Karnataka Slum Areas (Improvement and Clearance) Act, 1973. Further on 09.11.2007 vide No.Va.E.69.Ko.Mum.E. 2007 under Sec.17 of Karnataka Slum Areas (Improvement and Clearance) Act, 1973 this defendant obtained site possession. Hence, prays for dismissal of the suit.
8. On the basis of the above pleadings of the parties, my predecessor has framed the following issues as under:
ISSUES
1. Whether the plaintiff prove that he is in peaceful possession and enjoyment of the suit schedule property ?
2. Whether the plaintiff proves the alleged obstructions caused by the defendants ?
3. Whether the defendant No.5 proves that, the suit of the plaintiff is not maintainable ? 6 O.S.No.549 of 2017
4. Whether the plaintiff proves that, he is entitled for the relief of permanent injunction, as prayed for ?
5. What decree or order ?
9. The defendants have specifically contended that, the suit property is the subject matter of acquisition by the defendant No.5 Slum Board and it is further contended that, the suit is barred by law of limitation. However, the issues in this regard are not framed, hence, the following addl. Issues are framed as under :-
ADDL. ISSUES.
1. Whether the defendants prove that the suit property is acquired by the defendant No.5 Slum Board ?
2. Whether the defendants prove that the suit of the plaintiff is barred by limitation ?
10. Since the evidence on record is sufficient to answer these issues, it is not necessary to give an opportunity to the parties to adduce further evidence.
11. In order to substantiate his case, the plaintiff examined as PW.1 and got marked documents at Ex.P.1 to Ex.P.11. On the other hand, the defendant No.1 examined as DW.1 and got marked documents at Ex.D.1 to Ex.D.10. One witness by name Sri.S.G.Padmanabha, Executive Engineer on behalf of defendant No.5 examined as DW.2 and produced documents at Ex.D.11 to Ex.D.14.
12. I have heard both the sides and perused the written arguments submitted by the defendant No.5. Perused the entire oral and documentary evidence on record.
7 O.S.No.549 of 201713. My findings on all the issues and addl. issues are as under :-
Issue No.1 :- In the affirmative,
Issue No.2 :- In the affirmative,
Issue No.3 :- In the negative,
Addl. Issue No.1 :- In the negative,
Addl. Issue No.2 :- In the negative,
Issue No.4 & 5 :- As per the final order;
for the following :-
REASONS
14. ISSUE NO.1: The plaintiff has contended that from the date of purchase of the suit schedule property, he is in peaceful possession of the property. This contention is denied by the defendants. The contention of the defendants is that the plaintiff is claiming the possession over the property under the false documents and at no point of time, the plaintiff is in possession of the suit schedule property. The suit schedule property belongs to Slum Board.
15. The plaintiff has relied upon several documents in support of his case. So far as his possession is concerned, the documents at Ex.P.2, Ex.P.3 and Ex.P.5, which needs to be looked into. Ex.P.2 is the agreement of sale dated 07.10.2015, Ex.P.3 is the original possession letter dated 07.10.2015 and Ex.P.5 is the encumbrance certificate in respect of the suit schedule property. While cross-examining PW.1, the defendants have suggested PW.1 that it is specifically mentioned in the sale deed that no possession has been delivered under this agreement. PW.1 has denied this 8 O.S.No.549 of 2017 suggestion. It is true that, it is mentioned in Ex.P.2 agreement of sale that no possession has been delivered under this agreement. However, the plaintiff has produced another document at Ex.P.3 the possession letter executed by the vendor of the plaintiff. It is stated in Ex.P.3 that further to the agreement of sale dated 07.10.2015 entered in between Mr.Shahid Mohsin, the vendor and Mr.Ajaz, the purchaser in respect of the sale of immovable property now known as and bearing site No.3, comprised in No.24, situated in Arekempanahalli, presently under BBMP, Ward No.61, Bengaluru, the vendor has this day placed the purchaser in vacant possession of the said property. This document is executed on 07.10.2015 i.e., prior to filing of the present suit.
16. Further, Ex.P.5 is the encumbrance certificate issued by BBMP in favour of the plaintiff in respect of the suit schedule property, which shows that the name of the original owner at Column No.5 and the name of the plaintiff at Column No.6. These three documents show the plaintiff's possession over the suit schedule property.
17. In the cross-examination, the suggestion has been put to the witness disputing the possession over the suit schedule property. The contention of the defendants is that it is defendant No.5 the Slum Board which is in possession of the suit schedule property to construct the public toilet in the suit schedule property. The Slum Board has also drilled borewell in the suit schedule property to facilitate the water supply to the public toilet. The suggestions are denied by PW.1. So far as occupying the suit schedule property by the 9 O.S.No.549 of 2017 Slum Board and construction of the public toilet and drilling of the Borewell are concerned, absolutely no materials are placed before the Court, except putting suggestion to PW.1 in the evidence before the Court. However, the plaintiff has contended that he has put up the compound wall surrounding the suit schedule property, he has also written the case number on the compound wall.
18. Further that, DW.1 in her evidence has admitted the suggestion regarding existence of compound wall surrounding the suit schedule property. However, she has denied the suggestion with regard to writing of case number on the compound wall. Ex.P.10 and Ex.P.11 are the photographs of the suit schedule property, in which, writing of case number of the present case clearly appeared. The defendants have denied the plaintiff's possession over the suit schedule property. The documents at Ex.P.2, Ex.P.3, Ex.P.5, Ex.P.10, Ex.P.11 and the admission given by DW.1 in her cross- examination clearly establish that, it is the plaintiff, who is in possession of the suit schedule property. Since, Ex.P.2 is the registered sale agreement, Ex.P.3 is the possession certificate and Ex.P.3 is the encumbrance certificate issued by BBMP, it has to be held that the plaintiff's possession is the lawful possession. With these discussions, I answer issue No.1 is in the affirmative.
19. ISSUE NO.2: The plaintiff has contended that, the defendants started interfering with the property by throwing waste in the said open site. When the plaintiff requested them not to through the waste in the property, the defendants have assaulted him in this regard, he has also lodged the Police 10 O.S.No.549 of 2017 complaint, the Police have registered the case. He has further contended that, during 3rd week of January 2016, when the defendants along with their men, agents visited the suit schedule property, tried to make measurement and also taken photographs of the suit schedule property and made an attempt to demolish the shed on 31.12.2016. According to the plaintiff, this is the interference caused by the defendants. It is stated that, the defendants have manhandled him and he has lodged the Police complaint. So far as registering the complaint is concerned, the plaintiff has produced Ex.P.4 acknowledgement issued by the Police. The Police have registered the case as NCR 518/2016. The defendants have not disputed Ex.P.4. DW.1 in her evidence at para-2 page No.8 has admitted that, when the plaintiff was cleaning the suit schedule property, the residents of the slum have made galata in that property. She has further admitted that, with regard to this incident, complaint is lodged against three of them including DW.1. The evidence of DW.1 itself shows that, the plaintiff was making an effort to clean the suit schedule property by removing the waste and the residents of said locality have obstructed for the same and they have also picked up quarrel with them and there was an altercation and the complaint is lodged against them. When it is so, it has to be held that, the plaintiff has proved the interference by the defendants over the suit schedule property. Accordingly, I answer issue No.2 is in the affirmative.
20. ISSUE NO.3 & ADDL. ISSUE NO.1: Both the defendant Nos.1 and 5 have contended that the Government of Karnataka by its notification dated 21.04.1979 has acquired 11 O.S.No.549 of 2017 the suit schedule property. It is further contended that subsequent to the notification, the defendant No.5 the Slum Board has taken the suit schedule property in their possession, thereby, the defendant No.5 is in possession of the said property. PW.1 has pleaded ignorance about the acquisition proceedings. DW.1 has also stated in her evidence that the suit schedule property has already been acquired by the Slum Board for the purpose of benefit of the residents of Hombegowda Nagara Slum. Even DW.1 who is an official of defendant No.5 has stated that the suit schedule property has been acquired by the 5th defendant and presently, the suit schedule property is in possession of the defendant No.5.
21. The plaintiff's contention is that subsequent to the acquisition proceedings, the proceedings were conducted before the Slum Board. In the said proceedings, the Board has resolved to give up the acquisition proceedings, so far as the suit property is concerned. Ex.P.6 is the proceedings conducted before the BBMP. Ex.P.7 and Ex.P.8 are the endorsement issued by the 5th defendant. At Ex.P.6 the proceedings dated 21.10.2016, it is stated that among the land, which has already been acquired, site measuring 2 acres 02 guntas is in possession of the applicant and in whose name katha is also entered. Therefore, it is placed before the Joint Commissioner for necessary action. Thereafter, an order was passed. The plaintiff has produced Ex.P.7, which has been obtained by him under the provisions of Right to Information Act. In the said proceedings, subject No.53 is pertaining to the suit schedule property. Subject No.53 deals with the acquisition of Sy.No.22 and Sy.No.24 of Hombegowda Nagar 12 O.S.No.549 of 2017 Slum. It is further mentioned that, out of 28 guntas at Sy.No.22 and 8 guntas at Sy.No.24 have been acquired by the Board. However, the said properties are in the private ownership. Since a final decision has to be taken for acquisition, the Assistant Executive Engineer was appointed to conduct survey and to prepare the map of the property. Accordingly, the Assistant Executive Engineer has submitted the report and survey. 2 guntas of site at Sy.No.24 is the open site and it comes under the purview of Hombegowda Nagar Slum area, which has already been acquired and it is further mentioned that, except vacant site measuring 2 guntas, the remaining 28 guntas of property in Sy.No.22 and 6 guntas at Sy.No.24 totally measuring 34 guntas were proposed for acquisition.
22. Further, at last paragraph second page of Ex.P.8, it is mentioned that excluding the site measuring 0.02 guntas, the remaining land measuring 28 guntas at Sy.No.22 and 6 guntas at Sy.No.24 totally measuring 34 guntas is acquired by the Slum Board. So, in the said proceedings, it is clearly stated that, totally 34 guntas of land in Sy.No.22 and Sy.No.24 of Hombegowda Nagar Slum has been acquired and land measuring 0.02 guntas has been excluded as the same was in private ownership. This document is obtained under RTI from the Office of 5th defendant. DW.1 has also stated in her evidence that these documents are issued from the office of the 5th defendant. However, she pleads ignorance about the proceedings in respect of Ex.P.7.
23. Further, the plaintiff has relied upon Ex.P.8. Again in this document also it is mentioned as excluding 0.02 guntas 13 O.S.No.549 of 2017 of land, the remaining land totally measuring 34 guntas at Sy.No.22 and Sy.No.24 has been proposed for acquisition. Though, DW.1 has pleaded ignorance about these two documents, these documents cannot be ignored as it is clearly admitted that, all these documents are issued by the office of the 5th defendant. Though, there is an acquisition proceedings in respect of the land totally measuring 34 guntas, 28 guntas in Sy.No.22 and 6 guntas in Sy.No.24, the site measuring 0.02 guntas which is the schedule property has been excluded from the acquisition proceedings. With this, I hold that, the defendants have failed to prove that the suit schedule property is the subject matter of acquisition. Accordingly, I answer issue No.3 and Addl. Issue No.1 are in the negative.
24. ADDL. ISSUE NO.2: Both the defendant Nos.1 and 5 have contended that, the suit of the plaintiff is time barred. As per the plaint averments, the defendants have started obstructing the plaintiff during the 3rd week of January 2016. This is a suit for injunction. This suit is filed in the year 2017. In between, the plaintiff has approached the jurisdictional Police to set right the issue. Since he could not succeed in it, he has filed the present suit. The present suit is filed for the relief of injunction, so far as the question of limitation is concerned, the same has to be proved under Article 113 of Limitation Act. As per Article 113 of the Limitation Act, the limitation is three years from the date of cause of action. The date of cause of action has not been disputed by the defendants. The present suit is filed on 20.01.2017. Hence, the present suit is within the limitation. Hence, I answer Addl. Issue No.2 is in the negative.
14 O.S.No.549 of 201725. ISSUE NO.4: For the aforementioned discussion on issue Nos.1 and 3 and addl. Issue Nos.1 and 2, the plaintiff is entitled for the relief sought for, hence issue No.4 is answered accordingly.
26. ISSUE NO.5: In view of my aforesaid discussion, I proceed to pass the following: -
ORDER The suit of the plaintiff is hereby decreed with cost.
The defendants are hereby
restrained from interfering with the
plaintiff's peaceful possession and
enjoyment over the suit schedule property.
Draw decree accordingly.
(Dictated to the Stenographer, transcription computerised by her, corrected and then pronounced by me in the open Court on this the 17th day of February 2022.) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE WITNESSES EXAMINED ON BEHALF OF PLAINTIFFS:
PW.1 : Sri. Ajaz.15 O.S.No.549 of 2017
DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : Certified copy of absolute sale deed dated 24.02.2000.
Ex.P.2 : Original registered agreement of sale dated 07.10.2015.
Ex.P.3 : Original possession letter dated 07.10.2015. Ex.P.4 : Acknowledgement issued by the Siddapur P.S. dated 31.12.2016.
Ex.P.5 : EC dated 16.01.2017.
Ex.P.6 : Certified copy of order sheet of proceedings of
BBMP.
Ex.P.7 : Endorsement issued by the Karnataka Slum
Board dated 12.09.2016.
Ex.P.8 : Endorsement issued by the Karnataka Slum
board dated 27.08.2016 along with sketch.
Ex.P.9 to 11 : Photographs.
WITNESSES EXAMINED ON BEHALF OF DEFENDANTS:
DW.1 : Smt. Kalai Vani. DW.2 : Sri.S.G.Padmanabha.
DOCUMENTS MARKED ON BEHALF OF DEFENDANT:
Ex.D.1 : Aadhaar card of D2.
Ex.D.2 : Aadhaar card of DW.1.
Ex.D.3 : Original Voter ID of DW.1.
Ex.D.4 : Original Voter ID of D2.
Ex.D.5 : Original ID card issued by D5 in favour of
DW.1.
Ex.D.6 : Original ID card issued by D5 in favour of D2.
Ex.D.7 : Certified copy of the gazette notification dated
27.03.1989.
Ex.D.8 : Certified copy of the gazette notification dated
17.10.2018.
16 O.S.No.549 of 2017
Ex.D.9 : Certified copy of the sketch pertaining to
Hombegowda Nagar Slum area.
Ex.D.10 : Certified copy of the list containing the names of the slum dwellers issued by D5.
Ex.D.11 : Certified copy of the authorization letter dated 15.02.2017.
Ex.D.12 : Certified copy of the notification dated 21.04.1979.
Ex.D.13 : Certified copy of the notification dated 27.03.1989.
Ex.D.14 : Certified copy of the notification dated 09.11.2007.
(SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.