Bangalore District Court
Sri.H.T.Venkateshamurhty vs The Commissioner on 27 September, 2019
IN THE COURT OF THE LXXIII ADDL.CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH74)
Present: Sri.Yamanappa Bammanagi,
B.A., LL.B., (Spl.,)
LXXIII Addl.City Civil & Sessions Judge
Dated this the 27th day of September, 2019
O.S.No.25222/2012
Plaintiff: Sri.H.T.Venkateshamurhty,
S/o H.Thimmaiah,
Aged about 48 years,
R/at No.7/6, 1st Main, 7th Cross Road,
Govindarajanagara, Bengaluru40.
(By Sri. N.Raghubabu, - Adv.)
Vs.
Defendant: The Commissioner,
Corporation City of Bengaluru,
Now called as BBMP,
Bengaluru.
(By Sri. Subhash .C Adv.)
Date of Institution of the suit 01022012
Nature of the (Suit or Pronote, suit
for declaration and possession, suit Injunction suit
for injunction, ect.)
Date of the commencement of 15032019
recording of the evidence
Date on which the judgment was 27092019
pronounced
Year/s Month/s Day/s
Total Duration 07 07 26
(Yamanappa Bammanagi)
73rd Addl. CC & SJ, M.H.UNIT,
Bengaluru (CCH74)
2 OS.No.25222/2012
JUDGMENT
The plaintiff has filed this suit against the defendant, his agents or anybody claiming under the defendant restraining them from interference with plaintiff's peaceful possession and enjoyment of the suit schedule property and restraining them from demolishing any portion of suit schedule construction.
2. Brief facts of the plaintiff's case:
It is the case of the plaintiff that, he is the absolute owner and in possession of the suit schedule property, by virtue of registered gift deed dated 23092004, after registration gift deed defendant has confirmed khatha extract and khatha certificate in the name of plaintiff and plaintiff paying tax in respect of suit schedule property.
3. Further it is the case of the plaintiff that with view to construct residential building upon the schedule property, has obtain sanction plan from the defendant for construction of stilt, ground, first and second floor including terrace floor the plaintiff has constructed building over the suit property in accordance with sanction plan without deviation. Such being the fact the officials 3 OS.No.25222/2012 of defendant had abruptly appeared near the schedule property and gave threat to demolish the suit building in the month of October 2011 and again the defendant attempted to interfere and demolish the suit schedule property without any prior notice u/S 321 of KMC Act, the plaintiff had issued notice u/S 482 of the KMC Act and same was served on defendant on 17102011 and again on 28012012, repeatedly attempted to interfere in the peaceful possession and enjoyment of the suit property. Hence, the plaintiff has filed this suit.
4. On the other hand defendant appeared through his counsel and filed written statement contending that the suit filed by the Plaintiff is not maintainable since the defendant has initiated action against the Plaintiff u/s 321 of KMC Act, and defendant has passed the confirmation order u/s 321 (3) of KMC Act, after complying with the other provisions of KMC Act. Further he contended that when defendant has passed the confirmation order and same was served on the plaintiff, under such circumstances, this court has no jurisdiction as per the provisions of Sec.443A of KMC Act. Said action against the 4 OS.No.25222/2012 Plaintiff was initiated on the complaint lodged by one Smt. Lakshmidevi against the Plaintiff on 23122011. Further the defendant has received one more complaint from one Sri.Keshva Murthy against the plaintiff on 04012012, stating that plaintiff is putting construction on the schedule property without leaving set backs and without following the construction rules, which obstructing ventilation of air and light and affected their health. In pursuant to the said complaint the officer of the defendant has inspected building which is under construction, belongs to plaintiff, and submitted report on 28012012, contending that the plaintiff has constructed the building not in accordance with the sanction plan and bye laws. On account of which the defendant has initiated action against the plaintiff and after complying with provisions of sec.321 of KMC Act, the defendant has passed the confirmation order and same was served on the plaintiff. Hence, once action is initiated against the plaintiff u/S 321 of KMC Act, this court has no jurisdiction to try this suit. If the plaintiff is not satisfied with the order of defendant in that event the plaintiff has to approach the tribunal. With this, he prays for the dismissal of 5 OS.No.25222/2012 the suit.
5. On the basis of the pleadings of the parties my learned Predecessor has framed the following:
ISSUES
1. Whether Plaintiff proves that he has put up and constructed suit schedule property in accordance with approved plan issued by Defendant and therefore Plaintiff is in lawful Possession and enjoyment of the suit schedule property?
2. Whether Plaintiff proves that Defendant is trying to demolish the suit schedule property without due process of law u/S 321 of KMC Act and thereby causing interference into Plaintiff's Possession?
3. Whether Plaintiff is entitled for decree of Permanent Injunction as sought in the Plaint?
4. What decree or order?
6. In order to prove his case the plaintiff is examined as PW.1 and got marked Ex.P1 to P10 and posted for cross of PW.1. when suit was posted for cross of PW.1, PW.1 and his counsel present, but defendant and his counsel absent, no representation on the defendant side. Hence, cross of PW.1 was taken as nil and evidence of plaintiff is side closed on the submission made by the learned counsel for the plaintiff and posted for evidence of 6 OS.No.25222/2012 defendant. When suit was posted for evidence of defendant, defendant and his counsel remained absent regularly, after giving sufficient opportunity to lead his evidence, the evidence of defendant side is taken as Nil and posted for argument. Heard argument of the learned counsel for the plaintiff and posted for argument on defendant side. When suit was posted for argument on defendant side, at that time, defendant and his counsel remained absent, hence, argument on defendant side is taken as heard and posted for judgment.
7. My answer to above Issues are as follows:
Issue No.1 : In the Affirmative Issue No.2 : In the Affirmative Issue No.3 : In the Affirmative Issue No.4 : As per the final order, for the following:
REASONS
8. Issue No.1: In order to prove his case the plaintiff himself got examined as PW.1, by filing affidavit in lieu of examination in chief, reiterating the averments of the plaint and got marked Ex.P1 to 10, Ex.P1 is the register sale dated 1203 1973. I have perused Ex.P1, is the certified of the copy of the 7 OS.No.25222/2012 registered gift deed, which stands in the name of plaintiff in respect of suit schedule property. Ex.P2 is the khatha certificate issued by the BBMP, i.e. defendant to the plaintiff in respect of suit schedule property on 03022018, Ex.P3 is the khatha extract, issued by the defendant to the plaintiff in respect of suit schedule property. I have perused the Ex.P2 & P3, which are stands in the name of Plaintiff and shows that plaintiff is in possession of the suit property. Ex.P4 & P5 are also khatha certificate and khatha extract, stands in the name of plaintiff. Ex.P6 is the certificate, issued by the BBMP, Ex.P7 is the sanction plan, issued by defendant and the plaintiff has constructed building over the suit property. Ex.P8 is the endorsement, issued by the bank manager, Vijaya Bank, Branch Chandra Layout, Bengaluru, which reflects that the plaintiff has obtained loan for construction of house by depositing title deeds of the suit schedule property. Ex.P9 is the legal notice issued by the plaintiff through his counsel to the defendant prior to filing of this suit. Same was served on defendant on 17102011. Ex.P10 are the original acknowledgement and postal receipt. On perusal of the Ex.P9 and 8 OS.No.25222/2012 P10, it clearly shows that the plaintiff got issued notice to the defendant through RPAD and same was served on the defendant.
9. The Ex.P2 to P10 are the revenue entries made in respect of schedule property by the public servant while discharging his duty. On perusal of the said revenue records, I am of the opinion that, the plaintiff is in possession of the suit schedule property at the time of the filing of the suit as the revenue entries in respect of suit schedule property as got evidentiary value under the law. As per Sec.35 of the Indian evidence Act, the revenue entries have got evedentiary value Sec.35 of Indian Evidence Act, which reads thus:
35.Relevancy of entry in public [record or an electronic record] made in performance of duty.__ An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in 9 OS.No.25222/2012 which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.
Editor's Note._The words "Fact", "Facts in issue" and 'Relevant" are defined in Section 3 of this Act.
In support of my opinion I relied on the decision reported in ILR 2004 KAR.1074 in case of Naganna Vs. Shivanna. The lordship have held at Head note B. thus:
REBUTTAL EVIDENCE - entries in the ROR carries presumptive value in law
- if there is no convincing evidence to rebutt the legal presumption, lessor relief of injunction can be granted. But the declaration title cannot be granted.
Further relied on decision reported in AIR 2008 SC 901 in case of Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and Others. The lordship have held at Head note B. reads thus:10 OS.No.25222/2012
Evidence Act, (1 of 1872), Ss. 35, 114 revenue records not document of title it merely raises presumption of possession. The lordship have discussed at Para 12 of the judgment, which reads thus:
A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the the Indian Evidence Act. The Courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind.
10. On perusal of the oral and documentary evidence it is clear that plaintiff has proved that he is in possession and enjoyment of the suit schedule property at the time of the filing of the suit. Further the possession of the plaintiff is not disputed by the defendant. The only disputed fact is as to whether plaintiff 11 OS.No.25222/2012 has constructed house over the suit schedule property in accordance with sanctioned plan. But, there is no document produced by the defendant to show that there is a deviation in construction of building over the suit property. Even the defendant has not produced oral or documentary evidence in support of his defence.
11. On the other hand though the defendant has appeared through his counsel and filed a written statement contending that the plaintiff is in possession of the suit schedule property and he has taken sanction plan from the defendant for construction of building. Further it is the case of the defendant as per the averments of the written statement that the defendant has received complaints against the plaintiff for having violated the sanction plan and bye law, while constructing building over the suit property, without leaving set backs. On account of which the defendant has initiated action against the plaintiff for violation of sanction plan and bye laws u/S 321 of KMC Act, and passed the confirmation order under the said section. Though defendant has filed written statement but he did not choose to lead his evidence 12 OS.No.25222/2012 to prove his case as contended in the written statement. The defendant even did not choose to cross examine PW.1. If the defendant really has initiated action against the plaintiff u/s 321 of KMC Act and passed the confirmation order then he would have produced the documents to show that the defendant has passed the confirmation order against the plaintiff for violation of sanctioned plan and bye laws. And if the plaintiff really violated the sanctioned plan and bye law, the defendant would have produced, at least the xerox copy of said orders; but, defendant did not produced any single piece of document to show that he has initiated action against the plaintiff and passed the confirmation order. Under such circumstances, when defendant did not choose to cross examine the PW.1, then the oral and documentary evidence led by the plaintiff are remained unchallenged. On perusal of the above said documents and non production of documents by the defendant to show that the defendant has passed the confirmation order u/S 321 of KMC Act, it can be held that defendant failed to prove the fact of initiation of action against the plaintiff u/S 321 of KMC Act and 13 OS.No.25222/2012 confirmation order. Relying on the material placed before the court and decision referred above I am of the opinion that plaintiff has proved that he is in possession of the suit schedule property at the time of the filing of the suit. With this reasons and relying on the decision referred above, I answer this issue in the Affirmative.
12. Issue NO.2: It is specific defence of the defendant that the plaintiff has constructed house over the suit property by deviating the sanction plan and bye law, and the defendant had received complaints against the plaintiff for deviation of sanction plan. On the basis of said complaints defendant's officials have visited the spot and submitted the report stating that the plaintiff has constructed building over the suit property not in accordance with sanction plan. Hence, they have initiated action against the plaintiff and passed the confirmation order for demolishing the suit schedule building. Such being the case of the defendant, did not choose to lead his evidence to prove his defence. The defendant even did not cross examined PW.1. That apart, if the defendant really initiated the action u/S 321 of KMC Act, against the plaintiff, for violation of sanction plan then what prevents the 14 OS.No.25222/2012 defendant to produce the confirmation order and notice, provisional order and other documents to substantiate his defence. Under such circumstances, I am of the opinion that, the defendant failed to prove the fact of initiation of action u/S 321 of KMC Act and the oral and documentary evidence led by the plaintiff remained unchallenged. Under such circumstances, it can be safely held that the plaintiff has proved the act of defendant, clearly shows that the defendant has interfered in the peaceful possession and enjoyment of the suit schedule property. With these reasons, I am of the opinion that the plaintiff has proved this issue with cogent evidence. Hence, I answer this issue in the Affirmative.
13. Issue No.3: It is the case of the plaintiff that he is owner and in possession of the suit property and obtained sanction plan for construction of house over the suit property and constructed house. This fact is not disputed by the defendant even in his written statement. The only defence of the defendant is that the plaintiff has constructed house by violating the sanction plan, issued by the BBMP and BBMP has passed the confirmation order 15 OS.No.25222/2012 against the plaintiff u/S 321 (3) of KMC Act; hence, this court has no jurisdiction and prayed for dismissal of the order.
14. When defendant failed to prove the fact of deviation and action initiated against the plaintiff under Section 321 of KMC Act, by producing relevant documents for violation of sanction plan and confirmation order as alleged by the defendant in the written statement. Under such circumstances, I am of the opinion that it can be safely held that plaintiff is entitled for the relief of injunction. In support of my opinion I relied on the decision reported in AIR 2008 SC 2033 in case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others.
The lordship have held in the decision thus:
Where Plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant a suit for an injunction simpliciter will lie. With this and relying on the decision referred above, I answer this issue in the Affirmative.
15. Issue No.4: Inview of the discussion made on Issue No.1 to 3, 16 OS.No.25222/2012 I proceed to pass the following:
ORDER The suit filed by the plaintiff is hereby decreed. Consequently, the Defendant, it officials, its agents are hereby restrained by order of injunction from demolishing the schedule building and from interfering with plaintiff's lawful possession of the suit property without due process of law.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her, after online correction by me, printout taken by her and then pronounced by me in the open court on this the 27th day of September, 2019).
(Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) SUIT SCHEDULE PROPERTY 17 OS.No.25222/2012 Residential building constructed on the property bearing No.7/6, 1st Main road, Thimmenahally, Govidarajanagara ward, PID No.36487/61, Bengaluru40, measuring East to West: 30 feet and North to South: 87 feet and bounded on the:
East by : Remaining property of the Donor and passage, West by : Property No.5, North by: Road and South by: Remaining property of the Donor and property of H.Ramakrishnappa, (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) ANNEXURE List of witnesses examined for the plaintiff's side: PW.1 - Sri.H.T.Venkatesha Murthy, List of documents exhibited for the plaintiff's side:
Ex.P.1 C/C gift deed dated 23092003
Ex.P.2 C/C of Khatha certificate
Ex.P.3 C/C of Khatha extract
Ex.P.4 C/C of Khatha certificate
Ex.P.5 C/C of Khatha certificate stands in the name of
Thimmaiah
Ex.P.6 C/C of certificate dated 01091997 stands in the
name of Thimmaiah
Ex.P.7 C/C of sanction plan
18 OS.No.25222/2012
Ex.P.8 C/C of endorsement issued by the bank
Ex.P.9 Office copy of legal notice
Ex.P.10 Original postal receipt and acknowledgement
List of witnesses examined for the defendant's side:
Nil List of documents exhibited for the defendant's side: Nil (Yamanappa Bammanagi) LXXIII Addl. CC & SJ, M.H. Unit, Bengaluru. (CCH74) 19 OS.No.25222/2012