Bangalore District Court
Smt. Lakshmamma vs Sri.S.Shankar on 4 December, 2020
IN THE COURT OF XL ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH41) AT BENGALURU.
Dated this the 4th day of December, 2020.
PRESENT
SRI.RAVINDRA. M. JOSHI,
M.A., LL.B. (Spl.)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
O.S.No.8834/2014
Plaintiff : Smt. Lakshmamma
w/o M.Munirarappa Reddy
Aged about 65 years, r/at
Maruthinilaya,
Sadaramangala village,
Kadugodi Post,
Bangalore560 067.
(By Sri. Narayanaswamy H.R- Advocate)
AND:
Defendants: 1. Sri.S.Shankar
S/o Tholappa
Aged about 30 years, r/at
Sadaramangala village,
Kadugodi Post,
Bangalore560 067.
2. The Asst.Executive Engineer,
Bruhath Bengaluru Mahanagara Palike
2 O.S.No.8834/2014
Hoodi SubDivsion,
Bangalore560 048.
(By Sri.Shantha.R.Muller Adv. for D1,
Sri.D.Nagaraja Adv. for D2)
i) Date of Institution of the 17112014
suit.
ii) Nature of the suit. Injunction suit
iii) Date of the 30082016
commencement of
recording of evidence.
iv) Date on which the 04122020
judgment was pronounced.
v) Total Duration Years Months Days
06 17
(RAVINDRA. M. JOSHI)
XL Addl.City Civil & Sessions Judge,
Bengaluru.
****
JUDGMENT
This is suit for Permanent Injunction.
2. The plaintiff filed the present suit seeking decree for Permanent Injunction restraining the 3 O.S.No.8834/2014 defendants or anybody claiming through the defendants from interfering with peaceful possession and enjoyment of the schedule property. "All that piece and parcel of the property bearing Serial No.180, Khata No.196/180, measuring 48 X 52 feet situated at Sadaramangala village, Kadugodi Post, Bangalore, bounded on East by Ramaiah's property, West by road, North by Narayanreddy property and South by Chennamma's property" is treated as schedule property.
The plaintiff averred that she is absolute owner and in possession and enjoyment of schedule property since more than 40 years. The schedule property previously situated within the limits of CMC, Mahadevapura and plaintiff has paid taxes to CMC, Mahadevapura from 200405, 200506, 2008 09 and 200910. The CMC, Mahadevapura issued khatha to schedule property and issued property tax 4 O.S.No.8834/2014 register extract in the name of plaintiff. The schedule property now comes within the limits of Bruhath Bengaluru Mahanagara Palike. The Bruhath Bengaluru Mahanagara Palike also issued khatha and khatha certificate in the name of the plaintiff. The plaintiff is in peaceful possession and enjoyment of the schedule property by exercising all rights of ownership and paying taxes to Bruhath Bengaluru Mahanagara Palike from 201011 to 201415. It is averred that recently in order to put up compound wall around schedule property, plaintiff started construction work. The defendant No.1 is no way concerned to the schedule property and with malafide intention, lodged complaint against the plaintiff to defendant No.2 alleging that compound wall has been put up on the road. On the basis of the false complaint and without making spot inspection or enquiry, Bruhath Bengaluru Mahanagara Palike issued notice on 04/09/2014 5 O.S.No.8834/2014 asking plaintiff to demolish the compound wall. The defendant No.1 in collusion with defendant No.2 managed to issue said notice. Further, the defendants are making attempt to demolish the compound wall. The action of defendant is high handed and unlawful. The officials of defendant No.2 came near schedule property on 10/11/2014 and made attempt to measure the schedule property and threatened that if compound wall is not demolished, they will demolish the same. The threat given by Bruhath Bengaluru Mahanagara Palike is imminent. Therefore, plaintiff constrained to file the suit. The cause of action accrues to plaintiff on 04/09/2014 when defendant No.2 issued notice and on 10/11/2014 when officials of defendant No.2 came near schedule property and made attempt to measure the schedule property.
6 O.S.No.8834/2014
3. After appearance, defendants filed written statement. The defendant No.1 in the written statement contended that the suit of the plaintiff is false, frivolous and vexatious and is liable to be dismissed in limine. The plaintiff has not approached the Court with clean hand. The plaintiff has no locus standi to file the present suit. The plaintiff by suppressing material facts, filed the false suit. The defendant denied the averments made out in para 3 of the plaint as to plaintiff is absolute owner of the schedule property. The plaintiff denied the averments made out in para 4 to 8 as false. It is averred that is plaintiff has illegally constructed compound wall on the road. In order to protect his property and the road, he lodged complaint with defendant No.2 and defendant No.2 has given notice to plaintiff. The defendant denied the averments made in para Nos.9 to 11 as false. No cause of action accrues to plaintiff to file the suit. The defendant 7 O.S.No.8834/2014 pleaded that description of the schedule property is false and not correct. The defendant is residing in adjacent property to schedule property, which belongs to his wife. The plaintiff by making encroachment on the road, has constructed compound wall which would cause problem to general public and neighbouring owners. Therefore, defendant No.1 approached Bruhath Bengaluru Mahanagara Palike and lodged complaint. The Bruhath Bengaluru Mahanagara Palike sought explanation from plaintiff by issuing notice. The plaintiff instead of giving explanation, has filed this false suit. On these grounds and substances, prayed for dismissing the suit.
4. The defendant No.2 in the written statement contended that suit is wholly false, frivolous, vexatious and not maintainable in law or on facts. The suit lacks bonafides and is liable to be dismissed 8 O.S.No.8834/2014 in limine. The defendant denied the averments made out in para Nos.3 and 4 of the plaint as to plaintiff is the absolute owner of the schedule property and is in possession and enjoyment of it for more than 40 years. The plaintiff has not produced any documents to show her title to schedule property. The defendant No.2 averred that schedule property belongs to Bruhath Bengaluru Mahanagara Palike and plaintiff has no right. The tax paid receipts produced are concocted, fabricated and forged one. Further, the defendant denied the averments made out in para Nos.5,6 as false. It is contended that CMC, Mahadevapura issued khatha to schedule property. The property register extract produced by plaintiff is concocted and fabricated one. Further, after coming into limits of Bruhath Bengaluru Mahanagara Palike, the Bruhath Bengaluru Mahanagara Palike issued khatha in the name of the plaintiff in respect of schedule property. The 9 O.S.No.8834/2014 defendant denied the averments made out in para 8 of the plaint as to plaintiff recently started putting up compound wall around the schedule property. Further, it is denied that on the basis of the complaint filed by the defendant No.1 and without making spot inspection or enquiry, Bruhath Bengaluru Mahanagara Palike issued notice on 04/09/2014 for demolishing the compound wall. It is averred that Bruhath Bengaluru Mahanagara Palike after coming to know that plaintiff has been trying to knock away the property belongs to Bruhath Bengaluru Mahanagara Palike, notice has been issued to plaintiff. It is alleged that plaintiff and defendant No.1 have colluded with each other and in the process, the plaintiff is trying to knock away property belongs to Bruhath Bengaluru Mahanagara Palike. The defendant denied the plaint averments made out in para 10 as false. It is denied that plaintiff is in possession and enjoyment of the 10 O.S.No.8834/2014 schedule property. Further, it is denied that on 10/11/2014 officials came near schedule property for measuring and threatening the plaintiff for demolishing the compound wall. On these grounds and substance, prayed for dismissing the suit.
5. On the basis of pleadings, the following issues are framed:
1. Whether the plaintiff proves that she is in possession and enjoyment of the suit schedule property ?
2. Whether the plaintiff further proves that the defendants are illegally attempting to demolish compound wall of the suit schedule property as alleged ?
3. Whether the defendant No.1 proves that the plaintiff has illegally constructed compound wall by encroaching the road as alleged ?
4. Whether the plaintiff is entitled for the reliefs sought for ?
5. What Order or Decree ?11 O.S.No.8834/2014
6. To prove and substantiate the respective contentions, the plaintiff examined through Power of Attorney as PW1 and got marked 35 documents at Ex.P.1 to Ex.P.35. The defendants have not produced oral or documentary evidence.
7. Heard the arguments.
8. The above issues are answered for the reasons, findings given in the foregoing discussions as:
REASONS
9. ISSUE Nos.1 TO 3 : These issues are inter connected and depending on each other. Therefore, to avoid repetition of discussion, they are taken up jointly for consideration.
It is the case of the plaintiff that plaintiff is owner and in possession of the schedule property bearing Khatha No.196/180 measuring 48 X 52 feet situated at Sadaramangala village, Kadugodi Post, Bangalore. 12 O.S.No.8834/2014 The plaintiff is in possession of the schedule property since more than 40 years. The property initially situated within the limits of CMC, Mahadevapura. The plaintiff paid taxes regularly, khatha of the schedule property also stands in the name of the plaintiff. After coming into the limits of Bruhath Bengaluru Mahanagara Palike, khatha has been changed in the name of the plaintiff and is paying taxes regularly. It is averred that recently plaintiff started construction of compound wall to schedule property. At that time, defendant No.1, who is no way concerned to the schedule property made false allegations to Bruhath Bengaluru Mahanagara Palike stating that plaintiff is putting compound wall on the road. The Bruhath Bengaluru Mahanagara Palike without making enquiry and spot inspection issued notice on 04/09/2014 directing the demolition of compound wall otherwise Bruhath Bengaluru Mahanagara Palike will demolish it. The 13 O.S.No.8834/2014 act of the defendant No.2 is high handed and unlawful act. The officials of defendant No.2 again came near schedule property on 10/11/2014 and made attempt to demolish the compound wall. Therefore, plaintiff constrained to file the suit. The defendants denied the plaint averments. It is contended by defendant No.1 that plaintiff by encroaching the road, has put up compound wall, which is causing inconvenience to defendant No.1 and also neighbourers for their ingress and egress. In this regard, defendant No.1 approached Bruhath Bengaluru Mahanagara Palike for action against plaintiff. The defendant No.2 denied the possession fof the plaintiff over the schedule property and alleged attempt of demolishing the compound wall put up by the plaintiff. The Bruhath Bengaluru Mahanagara Palike contended that schedule property belongs to corporation. The plaintiff by creating false records, filed false suit. To 14 O.S.No.8834/2014 substantiate the contention, plaintiff examined through General Power of Attorney and got marked several documents. Inspite of opportunity given, defendant fails to give oral or documentary evidence.
10. PW1 filed affidavit in lieu of chief examination by reiterating the plaint averments. The evidence of PW1 is unrebutted and not shaken by way of cross examination. The plaintiff produced tax paid receipts (Ex.P.2 to Ex.P.6), acknowledgement card (Ex.P.7,8), property tax register extract (Ex.P.9,10,35), property register extract (Ex.P.11,
12), certificate (Ex.P.13,14,34), tax paid receipts (Ex.P.16 to 20), notice (Ex.P.21), photographs with CD (Ex.P.22 to Ex.P.32), property tax register extract (Ex.P.38).
11. On going through the property register extracts, and property tax demand register exracts, certficate, it reveals that property bearing No.180, 15 O.S.No.8834/2014 having khatha No.180 was earlier situated within the limits of CMC, Mahadevapura. Subsequently, comes within the jurisdiction of Bruhath Bengaluru Mahanagara Palike. The Bruhath Bengaluru Mahanagara Palike changed the khatha Number as 196/180. The property measuring 48 X 52 feet stands in the name of Lakshmamma W/o M.Muninarappa Reddy, the plaintiff. Further, the tax paid receipts reveals that plaintiff is paying tax to CMC, Mahadevapura while property comes within the jurisdiction of CMC, Mahadevapura and also is paying tax to Bruhath Bengaluru Mahanagara Palike after coming within the jurisdiction of Bruhath Bengaluru Mahanagara Palike. All these documents prima facie goes to show that plaintiff is khatha holder of schedule property. PW1 in his evidence stated that schedule property is originally ancestral property of plaintiff and the ancestors of plaintiff were in peaceful possession and enjoyment of it. 16 O.S.No.8834/2014 Subsequently, plaintiff become the owner and possessor of the property. The evidence of PW1 is intact. The evidence of PW1 corroborates with the documents placed by the plaintiff. The defendants though filed written statement, have not entered into witness box for giving evidence to disprove the case of the plaintiff or to substantiate their contention.
12. The plaintiff alleged that defendant No.1 without having any manner of right, interest in the schedule property has falsely made allegations of illegal constructions of the compound wall on road to Bruhath Bengaluru Mahanagara Palike. The Bruhath Bengaluru Mahanagara Palike officials without making spot inspection or measuring the property, have caused notice on 04/09/2014 directing to demolish the compound wall. The officials of the defendant came again near the schedule property on 10/11/2014 and threatened to 17 O.S.No.8834/2014 demolish the compound wall put up by the plaintiff. In the evidence, PW1 reiterated this fact. The plaintiff produced notice copy issued by Bruhath Bengaluru Mahanagara Palike. On perusal of the notice, it reveals that defendant No.2 issued the notice on the basis of the complaint filed by defendant No.1 directing the plaintiff to remove the compound constructed illegally within three days. The notice itself reveals that Bruhath Bengaluru Mahanagara Palike officials have made spot inspection or enquiry into the complaint filed by defendant No.1, issued the said notice. As earlier stated, the defendants have not made any efforts to substantiate their contention except denying the case of the plaintiff in their written statement. The schedule property situated within the jurisdiction of Bruhath Bengaluru Mahanagara Palike and Bruhath Bengaluru Mahanagara Palike is competent authority to protect public property and regulate the 18 O.S.No.8834/2014 constructions of building etc. The Bruhath Bengaluru Mahanagara Palike is empowered to remove unauthorized and illegal constructions. In order to do this, Bruhath Bengaluru Mahanagara Palike has to follow procedure established under the Karnataka Municipal Corporation Act. On going through materials placed on record, this Court finds that absolutely there is no evidence on behalf of Bruhath Bengaluru Mahanagara Palike to show that plaintiff has undertaken construction work of compound wall around schedule property by making encroachment of public road. In the absence of confirming and ascertaining the act of plaintiff in putting the compound wall is by making encroachment and illegal, any steps taken by it amounts to interference and obstruction for possession and enjoyment of the schedule property by plaintiff. The available materials are sufficient to show that plaintiff is in possession and enjoyment of 19 O.S.No.8834/2014 the schedule property and same is well within the knowledge of Bruhath Bengaluru Mahanagara Palike, it is collecting the tax and also issued khatha in the name of the plaintiff to schedule property. The plaintiff by producing the oral and documentary evidence, established that she is in possession and enjoyment of the property and defendants have caused interference for possession and enjoyment of the property. The defendants except filing the written statement, have not placed any material to show that the plaintiff by making encroachment of public road illegally, constructed compound wall. Therefore, for these reasons, this Court answered Issue Nos.1,2 in the Affirmative and Issue No.3 in the Negative.
13. ISSUE NO.4: In view of reasons, findings given in the above made discussion, this Court comes to the conclusion that plaintiff proved that 20 O.S.No.8834/2014 she is in lawful possession and enjoyment of the schedule property. The defendants fails to prove that plaintiff by encroaching road, put up compound wall illegally. The defendants without making spot inspection and enquiry issued notice to plaintiff directing to remove the compound wall. The act of the defendant No.2 in issuing the notice and demolishing/removal of compound wall without any cogent, reliable and acceptable material amounts to an interference and obstruction. The defendant No.2 even though competent authority for regulating and maintaining the buildings and properties can take action against encroachment of public property or illegal construction in violation of building byelaws in accordance with law, any act of Bruhath Bengaluru Mahanagara Palike without following due process of law amounts to interference in possession and enjoyment of the schedule property by plaintiff. The plaintiff is entitled for the relief of injunction 21 O.S.No.8834/2014 against the defendants from illegal interference and obstruction. Therefore, for these reasons, this Court answered Issue No.4 in the Affirmative.
14. ISSUE NO.5: In the result, this Court proceeds to pass the following:
ORDER Suit decreed.
The defendants or any person on their behalf are restrained by way of Permanent Injunction from interfering with peaceful possession and enjoyment of the schedule property by the plaintiff.
Under the circumstances, parties are directed to pay their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her and corrected, revised, signed and then pronounced by me in the open Court on this the 4th day of December, 2020.) (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions Judge, Bengaluru.
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22 O.S.No.8834/2014
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF
PLAINTIFF:
PW.1 - Muninarappa Reddy
DOCUMENTS PRODUCED ON BEHALF OF
PLAINTIFF:
Ex.P.1 Special Power of Attorney
Ex.P.2 to 65 tax paid receipts
Ex.P.7,8 2 acknowledgments
Ex.P.9 Property tax assessment extract
Ex.P.10 Property extract
Ex.P.11,12 2 property extracts issued by Bruhath Bengaluru Mahanagara Palike Ex.P.13,14 2 khatha certificates Ex.P.15 Khatha certificate and extract fees receipt Ex.P.16 to 5 tax paid receipts Ex.P.20 Ex.P.21 Notice issued by AEE, Hoodi Sub Division Ex.P.22 to 10 photographs and a CD Ex.P.32 Ex.P.33 Property tax register Ex.P.34 Khatha certificate Ex.P.35 Demand register extract WITNESSES EXAMINED & DOCUMENTS MARKED ON BEHALF OF DEFENDANTS:
NIL (RAVINDRA. M. JOSHI) XL Addl. City Civil & Sessions Judge, Bengaluru.23 O.S.No.8834/2014
***** 24 O.S.No.8834/2014