Bangalore District Court
Sri.L.Govindaraju vs Sri.K.Muniyappa on 16 April, 2021
IN THE COURT OF THE XX ADDL. CITY CIVIL &
SESSIONS JUDGE(CCH-32), BANGALORE CITY
Dated this the 16th day of April, 2021
Present:
Sri.Ningouda B.Patil, B.Sc., LL.M.,
XX Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.2838/2018
Plaintiff: Sri.L.Govindaraju,
S/o.Late Lingappa,
Aged about 51 years,
No.78, 19th Cross,
Kaggadasapura,
Sir C.V.Raman Nagar Post,
Bengaluru-560 093.
(By Sri.A.Lourdu Mariyappa,
Advoate).
/VS/
Defendants: 1.Sri.K.Muniyappa,
S/o.Late Kadrappa,
Aged about 64 years;
2.Sri.K.M.Vinod Kumar,
S/o.K.Muniyappa,
Aged about 27 years,
24th Cross, Kaggadasapura,
Sir C.V.Raman Nagar Post,
Bengaluru-560 093.
(Deft.No.1 & 2: By Sri.Ananda M.,
Advocate).
2 O.S.No.2838/2018
Date of Institution of the
suit : 13.04.2018.
Nature of suit : Declaration &
Injunction suit.
Date of commencement of
recording of evidence : 19.02.2020
Date on which Judgment
pronounced : 16.04.2021
Total Duration : Years Months Days
03 - 03
J UD GM E N T
Plaintiff instituted this suit against defendants for
the reliefs of declaration of his ownership, mandatory
injunction and for permanent injunction in respect of
subject matter of the suit.
2. The subject matter of the suit (Herein after called
as suit property) is all that piece and parcel of building
property comprised in three floors bearing BBMP Khatha
No.93/1 and 93/4 measuring east-west 60 ft. and north-
south 40 ft. located at 24 th Cross, Kaggadasapur, Sir C. V.
Raman Nagar, Ward no.57, Bangalore. Plaintiff given the
full description of suit property with boundaries in the
plaint schedule.
3. The case of the plaintiff is that, his uncle
Venkatappa @ Thoti Venkatappa S/o.Lingappa purchased
the site of the suit property on 28-4-1977 from one
Smt.Shantamma w/o. Hanumappa Reddy; the said uncle
of plaintiff married one Smt.Muniyamma but the couple
3 O.S.No.2838/2018
not blessed with any issue; the said Muniyamma died in
the year 1975; his uncle after purchase of site of the suit
property, developed the same by constructing three floored
building; he leased the said property on rent to one Dr.
Girish who running his Ayurvedic health center therein;
the said uncle enjoyed the suit property till his death; the
said uncle of plaintiff died on 28-12-2006.
4. Plaintiff pleaded that after death of his uncle, he
took the management of the suit property and at present
he managing the same without interference by anybody
except the defendants herein.
5. Plaintiff further pleaded that, defendants are the
owners of the neighboring property situated towards
western side of the suit property; the suit property
surrounded by a compound wall of hight of 5 ft.; the
property of defendants measures 30 x 40 Sq. ft; out it they
constructed a house measuring 15 x 30 Sq. ft. towards
western side of their property; they kept vacant their
property towards eastern side of their property;
defendants not left out any set back towards suit property;
however, both the defendants without any building plan or
permission on 9.4.2018 in the night dig the land for
basement and illegally constructed the construction just
attaching to the compound wall of suit property; he came
to know about the said illegal acts of defendants on
11.4.2018 through his tenant and immediately he rushed
to the suit property and inquired the defendants about the
illegal construction; he also requested to stop further
4 O.S.No.2838/2018
illegal construction; but, defendants were not in a mood to
heed him and without any right, title or interest much less
the possession, they put up the construction illegally
attaching to the compound wall of the suit property;
therefore, plaintiff approached the jurisdiction police to
lodge the complaint against defendants; he also filed
complaint before BBMP; the police refused to initiate the
proceedings as the matter is a civil dispute; the BBMP
authorities have also not taken any action against
defendants as they are colluded with them; hence, plaintiff
without alternative approached the court with the suit.
6. Plaintiff furthermore pleaded that, his uncle
constructed multi-storied building in the suit property in
the year 1997 and he enjoyed the same till his death; after
the death of said uncle, plaintiff became the owner of the
suit property as he is the only survived legal heir to his
uncle; since the death of his uncle, he is in possession
and enjoyment of suit property; defendants have no any
manner of right, title or interest over the suit property;
however, they illegally constructed the construction just
attaching the compound wall of the suit property and
thereby defendants interfered with his peaceful possession
over the suit property; further defendants falsely claimed
the right over the constructed portion of the property;
therefore, it is just and necessary to declare that he is the
owner of the suit property and the acts of defendants are
illegal and hence it is further necessary to direct the
defendants to demolish their illegal construction
constructed just attaching to the compound wall of the
5 O.S.No.2838/2018
suit property by way of mandatory injunction; therefore,
suit of the plaintiff needs to be decreed.
7. Plaintiff further submitted that, the cause of
action for the suit arose on 10.4.2018, when defendants
illegally started to put up the construction just attaching
to the compound wall of the suit property. Plaintiff further
also submitted the suit property is located within
jurisdiction of this court and hence this court is having
Jurisdiction to try and entertain the suit. Accordingly
plaintiff prayed to decree the suit with costs.
8. This court issued summons to the defendants.
The said summons were served on defendants.
Defendants also appeared before the court, but failed to
defend the suit by filing written statement. This court
provided sufficient time to the defendants to file their
written statement, but defendants not filed their written
statement in time. Hence, written statement ofdefenants
taken as not filed. Thereafter, the case is posted for
evidence. Accordingly, plaintiff led both oral and
documentary evidence.
9. Perused plaint averments and documents
available on record. Also perused evidence adduced and
produced. Heard the arguments of counsel appearing for
plaintiff.
6 O.S.No.2838/2018
10. The points that which arose for my
consideration are:
(i) Whether plaintiff is entitle for the relief of
declaration as sought?
(ii) Whether plaintiff is entitled for injunction
reliefs as sought?
(iii) What order or decree?
11. My answer to point No.(i) and (ii) are in
affirmative and for point No.(iii) as per the order passed
for the following
REASONINGS
12. Point No.(i): Plaintiff seeking declaration of his
ownership over the suit property. It is his case that, his
uncle Venkatappa purchased the site of the suit property
and he developed the same by constructing a multi-storied
building. It is further case of the plaintiff that, his uncle
Venkatappa married with Smt.Muniyamma, but the couple
not blessed with any issues. The said Muniyamma
predeceased her husband Venkatappa. It is further also
case of plaintiff that, his uncle Venkatappa was in
possession and enjoyed the suit property till his death.
After his death, plaintiff as a legal heir of said Venkatappa
came in possession and enjoyment of suit property.
Accordingly, he is in possession and enjoying the suit
property as an absolute owner.
7 O.S.No.2838/2018
13. To prove the factual aspect of his case, plaintiff
resorted both oral evidence and also documentary
evidence. Plaintiff himself examined as P.W.1 and he got
marked the documents evidence Ex.P.1 to Ex.P.9.
14. Ex.P.1 is a Death Certificate of Venkatappa @
Thoti Venkatappa, Ex.P.2 is the original sale deed dated
28.4.1977, Ex.P.3 is the tax paid receipt, Ex.P.4 to 6 are
the electricity bills with receipts, Ex.P.7 is the received copy
of police complaint dated 12.4.2018, Ex.P.8 is the received
copy of complaint made by BBMP dated 12.4.208 and
Ex.P.9 is the copy of acknowledgment issued by police.
15. Plaintiff not produced any documentary evidence
to show his relation with the previous owner of suit
property i.e. deceased Venkatappa. The documentary
evidence at Ex.P.1 i.e. Death Certificate discloses that, said
Venkatappa died on 28.12.2006. The documentary
evidence at Ex.P.2 i.e. sale deed dated 28.4.1977 discloses
that, Venkatappa purchased the site property of suit
property. The documentary evidence at Ex.P.3 i.e. tax paid
receipt discloses that suit property is a developed property
and BBMP is going to collect the property tax on the said
property. The documentary evidence at Ex.P.4 to P.6
discloses that BESCOM provided electric connection to the
suit property and plaintiff is going to make the payment for
consumption of electricity.
8 O.S.No.2838/2018
16. Plaintiff not produced any document to show his
direct relationship with Venkatappa i.e. the previous owner
of suit property. However, he adduced oral evidence by
examining himself as P.W.1. Plaintiff who examined as
P.W.1 in his affidavit of examination in chief clearly and
categorically stated that, his deceased uncle Venkatappa
was the original owner of suit property and he died issue-
less. His wife Muniyamma also predeceased him.
Therefore, he being the son of brother of said Venkatappa
is the class-II legal heir as stated in the schedule of the
Hindu Succession Act, 1956. The counsel for plaintiff
argued that, plaintiff and his family belongs to Hindu
community and hence, governed by Hindu Personal Law of
Succession i.e. Hindu Succession Act, 1956. He further
argued that, as the uncle of plaintiff i.e. previous owner of
suit property was not having any issue, plaintiff being the
son of his brother, acquires the suit property after death of
said uncle through inheritance. Hence, plaintiff became
absolute owner of suit property.
17. No doubt, there is no any documentary proof that
the previous owner of suit property i.e. Venkatappa was the
uncle of plaintiff, but it is settled principle of law of
evidence that, a fact may be proved either by producing
the documentary evidence or by adducing oral evidence. In
this case plaintiff led the oral evidence regarding
acquisition of his ownership over the suit property.
Defendants according to plaintiff are the neighbors of suit
property. Therefore, defendants are the best persons to say
about plaintiff and his relation with deceased Venkatappa
9 O.S.No.2838/2018
and also about suit property. But, in this case defendants
not defended the suit by filing written statement. They also
not answered the allegations made against them by the
plaintiff. Further, they also not challenged the evidence led
by plaintiff. Hence, there is no alternative for this court
except to believe the case of the plaintiff. Plaintiff being the
son of brother of original owner of suit property acquired
the same through inheritance. Section 8 of the Hindu
Succession Act, 1956 provides general rules for
succession to the properties left behind by a Hindu male.
The extracted part of the said provision is as under:
Section 8: General rules of succession in
the case of males: The property of a male
Hindu dying intestate shall devolve according
to the provisions of this Chapter--
(a) firstly, upon the heirs, being the relatives
specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then
upon the heirs, being the relatives specified in
class II of the Schedule;
(c) thirdly, if there is no heir of any of the two
classes, then upon the agnates of the
deceased; and
(d) lastly, if there is no agnate, then upon the
cognates of the deceased.
18. Thus, as per the case of the plaintiff his uncle
Venkatappa died issue-less and intestate. The wife of said
Venkatappa predeceased him. Hence, plaintiff being the
son of brother of said Venkatappa, as per the provisions of
Section 8(b) of Hindu Succession Act, 1956 as quoted
10 O.S.No.2838/2018
above, he acquires the absolute ownership over the suit
property.
19. Plaintiff seeking another relief of declaration
declaring that, the alleged constructions of the defendants
constructed just abutting to the compound wall of suit
property are illegal. It is the specific case of the plaintiff
that, defendants being the owners of neighboring property
of suit property, without leaving set back and without
obtaining the plan and permission etc. from the competent
authority illegally constructing the constructions just
abutting to the compound wall of the suit property.
Therefore, it is necessary to declare the said acts of
constructions of the defendants are illegal.
20. Plaintiff in order to prove the said fact, produced
the documentary evidence at Ex.P.7 to 9. The documentary
evidence at Ex.P.7 and 8 are the received copies of
complaints lodged by the plaintiff against the defendants.
Plaintiff made the said complaints regarding illegal
constructions of defendants. The said documentary
evidence discloses that, defendants being the owners of
neighboring property of suit property constructed
construction abutting to the compound wall of suit
property and hence, plaintiff raised the objections for the
said acts of defendants and also lodged the complaints
before police and BBMP. The other materials produced by
the plaintiff discloses that, defendant constructed the
constructions just abutting to the compound wall of the
suit property. It is definite case of plaintiff that defendants
11 O.S.No.2838/2018
without leaving any set back constructed the
constructions. It is also his case that defendants not
obtained required plan and permission from the competent
authority for the said constructions. When plaintiff made
allegations that the constructions that which defendants
undertook are illegal, it is obliged on the part of the
defendants that they should establish before this court that
their construction is legal one and approved by the
competent authorities. But, in this case defendants not
denied the case of the plaintiff regarding their illegal
constructions. They also not disputed the oral evidence of
P.W.1 adduced in this regard. Thus, defendants remaining
silent admitted that they undertook illegal constructions
just abutting to compound wall of the suit property. Thus,
it can be concluded that defendants constructed illegal
constructions abutting to the compound wall of the suit
property. Therefore, this court is of the opinion that
defendants by putting construction denied the right of
ownership of plaintiff over the suit property and hence, it is
just and necessary to declare that, plaintiff is the owner of
the suit property and also necessary to declare that, the
said construction of defendants is illegal. Accordingly, my
answer to Point No.(i) is in Affirmative.
21. Point No.(ii): Plaintiff seeking mandatory
injunction against defendants for demolition of the illegal
construction constructed attaching to the compound wall
of suit property. Section 39 of the Specific Relief Act,
1963 directs when a civil court is having power to issue the
12 O.S.No.2838/2018
mandatory injunctions. The text part of the said provision
is as under:
Section 39: Mandatory injunctions: When,
to prevent the breach of an obligation, it is
necessary to compel the performance of certain
acts which the court is capable of enforcing, the
court may in its discretion grant an injunction to
prevent the breach complained of, and also to
compel performance of the requisite acts.
22. In this case defendants not denied that they
constructed illegal construction attaching to the compound
wall of the suit property. Defendants also not chosen to
raise their voice that their construction is legal one. No
doubt granting of the relief of mandatory injunction is a
discretionary relief, but the same may be granted against a
party to perform certain acts, which would satisfy an
obligation created under law. In this case defendants were
under obligation that they should construct their
construction in accordance with law i.e. by obtaining
necessary permission and plan, but they have not done so.
The acts of defendants are nothing but breach of law
which plaintiff complained. A civil court has to exercise
discretionary power in issuing mandatory injunction on
sound principles of judicial process. In this case plaintiff
proved that, defendants illegally constructed the
constructions abutting to the compound wall of suit
property. When plaintiff established that the constructions
constructed by the defendants are illegal, he is entitled to
13 O.S.No.2838/2018
seek mandatory injunction to demolish the said illegal
constructions. Therefore, as per the above said provisions,
this court is inclined to grant mandatory injunctions as
sought. Accordingly, my answer to Point No.(ii) is in
Affirmative.
23. Point No.(iii): Plaintiff seeking the relief of
declarations, relief of mandatory injunction and also relief
of permanent injunction against defendants in respect of
suit property. Section 34 of Specific Relief Act, 1963
provides that, granting of relief of declaration is a
discretion of the court. The said provision reads as
under:
Section 34: Discretion of court as to
declaration of status or right: Any person
entitled to any legal character, or to any right
as to any property, may institute a suit
against any person denying, or interested to
deny, his title to such character or right, and
the court may in its discretion make therein a
declaration that he is so entitled, and the
plaintiff need not in such suit ask for any
further relief: Provided that no court shall
make any such declaration where the
plaintiff, being able to seek further relief than
a mere declaration of title, omits to do so.
14 O.S.No.2838/2018
24. In this case plaintiff established that he is the
owner of suit property, but the acts of defendants
amounts a threat to the right of ownership of plaintiff over
the suit property. Therefore, as per the above said
provision, plaintiff is entitled for the relief of declaration of
his ownership over the suit property.
25. Further, plaintiff also established that,
defendants put up illegal constructions which also creates
a doubt of his right of ownership over the suit property.
Therefore, he is also entitled for the relief of declaration
declaring that the construction put up by the defendants
is illegal. This court while answering point No.2 also held
that plaintiff is entitled for relief of mandatory injunction
as sought.
26. Plaintiff also proved that after death of his uncle
he is in peaceful possession and enjoyment of suit
property. Defendants are nothing to do with suit
property. However, the acts of defendants causes
interference to his peaceful possession and enjoyment of
the suit property. Therefore, plaintiff is also entitled for
the relief of injunction against defendants as sought.
Hence, I proceed to pass the following
15 O.S.No.2838/2018
ORDER
The suit of plaintiff is hereby decreed with costs.
It is decreed and declared that, plaintiff is the absolute owner of the suit property.
It is further decreed and declared that, defendants constructed illegal constructions towards western side of compound wall of suit property.
Defendants are hereby directed by way of mandatory injunction to demolish their illegal construction, which constructed just abutting to the compound wall of suit property.
Further, defendants and men on their behalf are hereby restrained by an order of permanent injunction not to interfere with peaceful possession and enjoyment of plaintiff over suit property.
Draw decree accordingly.
(Dictated to the Judgment Writer on computer, computerised by her, corrected and then pronounced by me in open court on the 16 th day of April, 2021.) (Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
16 O.S.No.2838/2018ANNEXURE List of witnesses examined for the Plaintiff:
P.W.1: Sri.L.Govindaraju. List of documents marked for the Plaintiff:
Ex.P.1 Death Certificate of Venkatappa @ Thoti Venkatappa.
Ex.P.2 Original sale deed dated 28.4.1977.
Ex.P.3 Tax paid receipt. Ex.P.4 to 6 Electricity bills with receipts. Ex.P.7 Received copy of police complaint dated 12.4.2018.
Ex.P.8 Received copy of complaint made by BBMP dated 12.4.208.
Ex.P.9 Copy of acknowledgment issued by police.
List of Witnesses examined for defendants:
Nil.
List of documents marked for defendants:
Nil.
(Ningouda B.Patil) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.17 O.S.No.2838/2018
For Judgment by 16.4.2021.
XX Addl.C.C & S.J., Bengaluru.
Judgment pronounced in the open court (vide separate judgment).
ORDER The suit of plaintiff is hereby decreed with costs.
It is decreed and declared that, plaintiff is the absolute owner of the suit property.
It is further decreed and declared that, defendants constructed illegal constructions towards western side of compound wall of suit property.
Defendants are hereby directed by way of mandatory injunction to demolish their illegal construction, which constructed just abutting to the compound wall of suit property.
Further, defendants and men on their behalf are hereby restrained by an order of permanent injunction not to interfere with peaceful possession and enjoyment of plaintiff over suit property. Draw decree accordingly.
XX Addl.C.C & S.J., 18 O.S.No.2838/2018 Bengaluru.