Bangalore District Court
Dr.Mohan Kumar vs The Bruhat Bengaluru on 13 January, 2023
KABC010160662009
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 13th day of January, 2023
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.6187 /2009
Plaintiff: Dr.Mohan Kumar
S/o Govindaraju,
Aged about 42 years,
R/at No.1, "Gowri Nilaya",
2nd Main, J.P.Nagar, 3rd Phase,
Bengaluru - 560078.
(By Sri.S.V.N., Advocate)
-V/S-
Defendants: 1. The Bruhat Bengaluru
Mahanagara Palike,
Corporation Office,
N.R.Square, J.C.Road,
Bengaluru.
Represented by its
Commissioner.
2. The Joint Commissioner
and Asst. Director,
2
O.S.No.6187/2009
(Town Planning),
Bruhat Bengaluru
Mahanagara Palike,
Bommanahalli Range,
Bommanahalli, Bengaluru.
3. Sri.Gopal Reddy
Assistant Engineer,
Bruhat Bengaluru
Mahanagara Palike,
Bommanahalli Range, Puttenahalli
Ward, Bengaluru.
4. Srinivasa Raju K.
S/o Late Vengama Raju,
Aged about 52 years,
R/at No.32, C.R.Layout,
J.P.Nagar 1st Phase,
Bengaluru - 560078.
5. M/s. Reddy Structures Pvt.Ltd.,
9, 24th Main, J.P.Nagar,
6th Phase, Bengaluru.
Represented by its
Managing Director,
K.Praveen.
6. Apartment Owners Association,
Mahaveer Spring Annex,
Constituted By
M/s.Reddy Structures Pvt.Ltd.,
Sy.No.4/2, Sarakkikere, J.P.Nagar
5th Phase, Bengaluru-560078.
Represented by its
Secretary and its inmates
as it could be.
3
O.S.No.6187/2009
Also at:
Atapartment Owners Association,
Mahaveer Spring Annex,
Constituted by
M/s. Reddy Structures Pvt. Ltd.,
9, 24th Main, J.P.Nagar,
6th Phase, Bengaluru.
Represented by its
Secretary and its inmates
as it could be.
(D.1 to 3 by Sri.K.V.B., advocate)
(D.4 by Sri.S.N.S., advocate)
(D.5 by Sri. B.L.C., advocate)
(D.6 by Sri.G.R.A., advocate)
Date of institution of the suit: 22.09.2009
Nature of the suit: Declaration and injunction
suit
Date of commencement of 12.12.2013
recording of evidence:
Date on which Judgment was 17.12.2022
pronounced:
Duration: Yea Years Months Day
13 02 25
JUDGMENT
The plaintiff has filed the present suit under Order VII Rule 1 read with Sec.26 of CPC, praying for the relief of declaration and for the relief of mandatory injunction and permanent injunction.
4O.S.No.6187/2009
2. The brief facts of the case of the plaintiff as averred in the suit plaint are as follows:-
The plaintiff is the absolute owner of the suit 'A' schedule property. The plaintiff is in possession and enjoyment of suit 'A' schedule property as absolute owner. The defendant No.4 is owner of suit 'B' schedule property. The defendant No.4 has entered into Joint Development Agreement with defendant No.5 for construction of multistoried apartment building in 'B' schedule property. The defendant No.4 and 5 have obtained plan which is valid up to 25.09.2008 for construction of building in the suit 'B' schedule property. The said plan does not have any permission that is granted under the Karnataka Town and Country Planning Act. There was no permission to commence the construction work in the suit 'B' schedule property. No license has been granted to undertake construction work in the suit 'B' schedule property. The construction undertaken in respect of suit 'B' schedule property which is situated on the eastern side of plaintiffs 'A' schedule property is illegal and unlawful. The said constructions are opposed to the Karnataka Municipal Corporation Act, 1976 and provisions of the building bye-laws framed therein. The Commissioner of BBMP, Executive Engineer have permitted and allowed the construction in 'B' schedule property without a sanction plan. The building is illegally and fraudulently constructed in respect of suit 'B' schedule property and the 5 O.S.No.6187/2009 plaintiff's 'A' schedule property is shown in the bogus plan as ingress and egress to apartments construction on 'B' schedule property. The defendants No.1 to 3 are hand in glove with the defendants No.4 and 5 by having issued the fraudulent plan mentioning the plaintiff's 'A' schedule property as a road and is provided as ingress and egress to the apartments in respect of suit 'B' schedule property. The defendants No.1 to 3 are now making all efforts to form a road on the plaintiff's 'A' schedule property to put the said property for use as ingress and egress to the apartments construction on 'B' schedule property illegally and unlawfully. The plaintiff has approached the defendants No.1 to 3 and brought to their knowledge about illegal construction by the defendants No.4 and 5 in suit 'B' schedule property by encroaching the suit 'A' schedule property. But the defendants No.1 to 3 have not taken any action against the defendants No.4 and 5. The defendants No.1 to 4 all of a sudden came near the suit 'A' schedule property on 21.08.2009 and started attempting to form a road by leveling, metaling, chiseling and taring on the 'A' schedule property. The plaintiff has approached the Hon'ble High Court of Karnataka by filing W.P.No.25760/2009 against the illegal acts of the defendants. The plaintiff has withdrawn the said writ petition as the Hon'ble High Court of Karnataka has mentioned about availability of alternative remedy to the plaintiff. The plaintiff had filed O.S.No.37/2009 as against the defendant 6 O.S.No.6187/2009 No.4 seeking a relief of perpetual injunction with respect to 'A' schedule property. Status-quo order was granted in the said suit. The plaintiff has also lodged police complaint against the defendants regarding the illegal acts of the defendants. The plaintiff has also approached Lokayuktha. Hence, it is stated in the suit plaint that the plaintiff has filed the present suit without having any other alternative remedy. Hence, the plaintiffs have prayed to decree the suit.
3. After service of summons, the defendants No.1 to 3 have not appeared before the court through their counsel. The defendant No.4 has appeared though another counsel. The defendants No.5 and 6 have also appeared through their separate counsels. The defendants No.1 to 3 have filed their common written statement. The defendants No.1 to 3 in their written statement have not admitted the descriptions of suit 'A' and 'B' schedule property as averred in the suit plaint and they have not admitted the title, possession and enjoyment of the suit property as averred in the suit plaint. The defendants No.1 to 3 have admitted the fact that the defendant No.4 and 5 have applied for sanction plan for construction of multistoried building on suit 'A' and 'B' schedule property. It is also admitted by the defendants No.1 to 3 that the Commissioner, City Municipal Council on 29.06.2006 had accorded plan for the purpose of taking approval for conversion of land from the 7 O.S.No.6187/2009 state government. As per the said plan, the owner has to commence the construction of the building within two years from the date of the plan and he has to obtain the necessary permission from government for conversion of land for construction of multistoried building. As per the Karnataka Town and Country Planning Act. The defendants No.1 to 3 in their written statement have further contended that the defendant No.4 and 5 have not submitted any documents for having obtained approval from the Government of Karnataka for conversion of land. As such, CMC of BBMP has cancelled the sanction accorded in their favour. The defendants No.1 to 3 in their written statement have further contended that the alleged sanction plan without obtaining the license for construction of building is not valid. The defendants No.1 to 3 in their written statement have further contended that the owners taking advantage of approved sanction plan have without securing conversion of land from the government have unauthorizedly constructed building without valid sanction plan. The defendants No.1 to 3 in their written statement have further contended that the said plan is not created or fabricated. The defendant No.3 has not committed any fraud. The defendants No.1 to 3 in their written statement have further contended that the plaintiff in order to create cause of action to maintain the suit has made false allegations in the suit plaint. The suit filed by the plaintiff bearing 8 O.S.No.6187/2009 O.S.No.37/2009 is pending and as such, the present suit is hit by principle of res-judicata. The suit filed by the plaintiff is not maintainable for non-compliance of mandatory provision Sec.482 of KMC Act. There is no cause of action to file the suit and alleged cause of action is imaginary one. The defendants No.1 to 3 have specifically denied all other averments made in the suit plaint. On these among other grounds, the defendants No.1 to 3 have prayed to dismiss the suit.
4. The defendant No.4 has filed his separate written statement. The defendant No.4 in his written statement has denied the contention of the plaintiff that he is the absolute owner of suit 'A' schedule property. The defendant No.4 has admitted the contention of the plaintiff that he is the owner of suit 'B' schedule property which is situated towards suit 'A' schedule property. The defendant No.4 in his written statement has further contended that he had entered into Joint Development Agreement with defendant No.5. The defendant No.4 in his written statement has further contended that the said construction was undertaken with proper plan and license. The defendant No.4 in his written statement has further contended that a road measuring 22 feet width is located in 'L' shape on the northern side from East to West 30 feet and on the southern side measuring 22 feet width runs along the North to South to the property of the plaintiff and this road of 9 O.S.No.6187/2009 30 feet width is only ingress and egress ('A' schedule property) to the properties of the plaintiff, defendants No.4 to 6 and also to the public. The defendant No.4 in his written statement has further contended that the plaintiff and defendant No.4 being near relatives, have been using the above said road for the past 40-50 years. The defendant No.4 in his written statement has further contended that the defendant No.4 and the general publics who are the devotees of lord Muneshwara have been using the said road without any interruption whatsoever, for the past 40-50 years as stated supra by perfecting the easementry rights by prescription, to the knowledge of the plaintiff and his predecessors in title. The defendant No.4 in his written statement has further contended that the plaintiff with malafide intention and in order to deprive the easementry rights of the defendants NO.4 to 6 and the general public and to harass them wanted to grab the 'A' schedule property by forming unauthorized layout in Sy.No.4/1 and without obtaining proper plan and approval for the same. The defendant No.4 in his written statement has further contended that as such, the question of defendants No.1 to 3 indicating 'A' schedule property in the alleged fraudulent plan by the defendants No.1 to 3 as a opening or road does not arise since there is already road in existence. The defendant No.4 has denied the allegations of the plaintiff that the defendants No.1 to 3 have issued the fraudulent plan in favour of the defendants No.4 10 O.S.No.6187/2009 and 5 mentioning the plaintiffs 'A' schedule property as a opening road which provides as ingress and egress to the apartments with respect to the 'A' schedule property is false. The defendant No.4 in his written statement has further contended that on the contrary the suit 'A' schedule property is being used by 4th defendant as ingress and egress to 'B' schedule property wherein apartments are constructed. The defendant No.4 has also denied the allegations made in the suit plaint that on 21.08.2009, the defendants No.1 to 4 have all of a sudden came near the plaintiff's 'A' schedule property and started attempting to form a road in the said property. Since there is already road in existence in 'A' schedule property, the question of defendant No.4 to 6 making attempt to form road on 21.08.2009 as alleged by the plaintiff does not arises. The defendant No.4 in his written statement has further contended that the plaintiff in order to harass the defendant No.4 has filed O.S.No.37/2009 and W.P.No.25760/2009 before the Hon'ble High Court of Karnataka. The defendant No.4 in his written statement has further contended that the plaintiff has filed a memo in the suit bearing O.S.No.4031/2001 filed by him against the defendant No.4 praying to withdraw it, since the plaintiff has realized that he cannot succeeded in the said suit. The defendant No.4 has denied the cause of action shown in the suit plaint. The defendant No.4 has specifically denied all other averments and allegations made in the suit 11 O.S.No.6187/2009 plaint. On these among other grounds, the defendant No.4 has prayed to dismiss the suit filed by the plaintiff.
5. The defendant No.5 has also filed his separate written statement. The defendant No.5 in his written statement has taken similar contention as taken by defendant No.4 in his written statement. As such, entire averments made in the written statement of defendant No.5 are not reproduced herein to avoid repetition of facts. The defendant No.5 in his written statement has specifically denied all the allegations made in the suit plaint against him. The defendant No.5 in his written statement has contended that the issues involved in this suit and issues involved in O.S.No.4031/2001 are one or the same. The defendant No.5 in his written statement has further contended that O.S.No.4031/2001 was withdrawn by the plaintiff as such, the present suit is hit by the order 2 Rule 2 of CPC. The defendant No.5 in his written statement has further contended that the plaintiff has not properly valued the suit claim and he has not paid proper court fee. The plaintiff is the grand-son of Smt.Lakshmamma. The family of Lakshmamma had several properties in Sarakkikere village, which includes the land in Sy.No.4/1 and 4/2. The defendant No.5 in his written statement has further contended that the defendant No.4 is the owner of Sy.No.4/2 measuring 3 acres 8 guntas along with his brothers and sisters as joint owners. The 12 O.S.No.6187/2009 property is ancestral property of the 4th defendant. The said property situated towards eastern side of the plaintiff's property. There is a deity of lord Muneshwara in Sy.No.4/2 since ancient times. The defendants, his ancestors along with villagers of Sarakkikere Agrahara have been worshiping the said deity since centuries using the road measuring 22 ft X 30 feet which is on the northern side of the property of the plaintiff which the plaintiff has described as the suit schedule property. Even after and prior to allotment of share in property bearing Sy.No.4/2 to defendant No.4, the said road was/is exclusively used by both the parties to the suit and villagers since it is ingress and egress to the property in Sy.No.4/2. On these among other grounds as taken by defendant No.4 in the written statement, defendant No.5 has prayed to dismiss the suit filed by the plaintiff.
6. The defendant No.6 has also filed independent written statement by taking similar contentions as taken by defendant No.4 and 5 in thie written statement. The defendant No.6 in his written statement has also specifically pleaded that the contention raised by the defendants No.4 and 5 in their written statement may be read as part and parcel of his written statement. As such, I am of the opinion that there is no necessity to reproduce the written statement of defendant No.6 with respect to the contention taken by the defendants No.4 13 O.S.No.6187/2009 and 5 in their written statement which are also stated in details earlier. Apart from said contention, the defendant No.6 in the written statement has contended that it is an association formed by the residents/purchasers of apartment/flat in the apartment building 'Mahaveer Springs Annex'. The defendant No.6 came into existence only on 11.01.2011. The defendant No.6 was not existed as on the date of institution of the suit. The defendant No.6 in his written statement has further contended that the defendants No.4 and 5 have obtained sanction plan on 29.06.2006 from Bommanahalli Municipal Council. The sanction layout plan and building license was also granted in their favour with construction of apartment in Sy.No.4/2. The owners / builders have obtained necessary permission /sanction from BWSSB, Pollution Control Board and constructed the apartment buildings. The defendant No.6 in his written statement has further contended that the defendant No.4 had applied for conversion of his land measuring 39.7 guntas in Sy.No.4/2 of Sarakki village on 06.04.2006. As per the order of Deputy Commissioner, Bengaluru District dated 06.07.2006, the said property has been converted for non-agricultural residential purpose. There is no fabrication of any plan by anyone as alleged by the plaintiff. The purchasers of apartments being necessary parties should have been made as party to the suit. Instead the plaintiff has only chosen to make the non-existed 14 O.S.No.6187/2009 association as a party to the suit. The suit is bad for non- joinder of necessary parties. The defendant No.6 in his written statement has further contended that the relief of demolishen of apartment constructed on schedule 'B' property is not maintainable in as much as the plaintiff is neither the owner of the said property nor claiming any alleged substantive rights and interest therein. The plaintiff has not sought for specific relief of declaration of his allege right over the suit 'A' schedule property. The defendant No.6 has seriously denied the ownership right of plaintiff over the suit 'A' schedule property. The plaintiff has not challenged the Joint Development Agreement, Sale Deeds executed in favour of each purchasers of apartments standing on the 'B' schedule property and title of their predecessors in title have not been challenged and no reliefs are sought with respect to the same. The suit filed by the plaintiff is not maintainable. The defendant No.6 in his written statement has further contended that the plaintiff has suppressed the fact of filing of O.S.No.4031/2001. The plaintiff and defendant No.4 by colluding with each other have got filed suit bearing O.S.No.37/2009 and obtained decree in the said suit. The defendant No.6 or any of the owners of the building constructed on 'B' schedule property are not parties to the suit. The decree is not binding upon them. The defendant No.4 herein who had already ceased to be the owner of the schedule 'B' property having already sold the apartments and 15 O.S.No.6187/2009 the proportionated undivided share in the land therein nearly a decade age to various bonafide purchasers who are all members of this defendant. The earlier suit filed by the plaintiff is only against the defendant No.4, is not binding upon the defendant No.6 and other apartment owners. The defendant No.6 in his written statement has further contended that O.S.No.37/2009 is with respect to the very same subject matter which is involved in the present suit. As such, the present suit is not maintainable under Order 11 Rule 2 of CPC and under Sec.11 of C.P.C. The present suit is barred by principles of resjudicata. The plaintiff has not properly valued the suit and he has not paid the court fee. The plaintiff has not valued the apartments constructed in the suit 'B' schedule property. The entire schedule 'B' property is worth over more than Rs.52 Crores. On these among other grounds, the defendant No.6 has prayed to dismiss the suit filed by the plaintiff.
7. Based upon the pleadings of both the parties, following 7 issues and 6 additional issues came to be framed by learned predecessors. Then the matter was posted for evidence.
ISSUES
1. Whether the plaintiff proves that alleged sanction plan in L.P.No.330/2006-07 dated 26.09.2006 in respect of 'B' schedule 16 O.S.No.6187/2009 property is illegal and contrary to the building bylaws?
2. Does he proves that defendants 1 to 3 are trying to encroach upon plaintiff's schedule 'A' property by an act of trespass for the purpose of formation of a road to provide ingress and egress the schedule 'B' property belonging to defendants 1 to 6?
3. Does he proves the alleged obstruction of the defendants 1 to 6 in respect of 'A' and 'B' schedule properties?
4. Does he proves that defendants have installed gate on the eastern side of the plaintiff's schedule 'A' property illegally?
5. Whether defendants prove that suit is not maintainable for non-compliance of mandatory provision of Sec.482 of KMC Act, 1976?
6. Whether plaintiff is entitled for the relief sought for?
7. What order or decree?
ADDITIONAL ISSUES
1. Whether the suit of the Plaintiff is barred by resjudicata in view of decisions of earlier proceedings in W.P.No.25760/2009, O.S.4031/2001 and O.S.No.37/2009?
2. Whether the suit is bad for non-joinder and misjoinder of necessary and proper parties?
3. Whether the suit is properly valued?
17O.S.No.6187/2009
4. Whether the Plaintiff proves that as on the date of the suit Defendant no.6 Association existed?
5. Whether the defendants prove that Schedule property is being used by them for ingress and egress to the Suit schedule property and they have exercising their easementary rights over the said property?
6. Whether the suit and the reliefs sought therein are all hopelessly barred by law of Limitation?
8. In order to prove their case, the plaintiff has adduced his oral evidence as P.W.1. P.W.1 has produced 24 documents and got them marked as Ex.P.1 to P.24 and closed his side. On behalf of the defendants, the defendant No.4 has adduced his oral evidence as D.W.1. On behalf of defendants, the defendant No.6 Association, its Executive Committee Member has adduced his oral evidence as D.W.2. Further on behalf of defendant No.5, the oral evidence of its authorized signatory was adduced as D.W.3. The defendants have produced 147 documents and got them marked as Ex.D.1 to D.147 and closed their side. Then the matter was posted for arguments.
9. Heard the arguments of Learned counsel for the plaintiff and Learned counsel for the defendants. Perused the pleadings, oral and documentary evidence adduced on behalf of both the parties and other materials on record.
18O.S.No.6187/2009
10. Having done so, my answer to the aforesaid issues are as follows:
Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : In the Negative
Addl. Issue No.1 : In the Negative
Addl. Issue No.2 : In the Negative
Addl. Issue No.3 : In the Affirmative
Addl. Issue No.4 : In the Negative
Addl. Issue No.5 : In the Negative
Addl. Issue No.6 : In the Negative
Issue No.7 : As per final order,
for the following :
REASONS
11. Issues No.1 to 4 and Additional Issue No.5 :
These issues are inter related to each other and as such they are taken up together for discussion to avoid repetition of facts.
12. The plaintiff has filed the present suit praying for the relief of declaration to declare that alleged sanction plan bearing LP.No.330/2006-07 dated 26.09.2006 issued by BBMP issued in the name of defendants No.4 and 5 as illegal and contrary to the building bye-laws. The plaintiff has also sought 19 O.S.No.6187/2009 for the relief of mandatory injunction directing the defendants No.1 to 3 to demolish the entire building constructed illegally and unlawfully on 'B' schedule property without there being sanctioned plan and license and change in land use. The plaintiff has also sought for the relief of mandatory injunction directing the defendants No.1 to 3 not to encroach upon the plaintiff's 'A' schedule property by an act of trespass for the purpose of formation of a road to provide ingress and egress of the suit schedule 'B' property belonging to the builders and developers and the inmates. Further the plaintiff has sought for the relief of permanent injunction restraining the defendants from utilizing his 'A' schedule property as a road in respect of the apartments illegally and unlawfully constructed by the 4 th and 5th defendants on the schedule 'B' property. Further the plaintiff has also sought for the relief of mandatory injunction directing the defendants to remove the gate provided on the eastern side of the plaintiff's 'A' schedule property. In view of prayer sought for by the plaintiff and also in view of plant averments, Issues No.1 to 4 came to be framed. The burden proving Issues No.1 to 4 is upon the plaintiff.
13. The plaintiff in order to discharge burden of proving Issues No.1 to 4 has adduced his oral evidence before the court as P.W.1. P.W.1 in his examination-in-chief filed by way of affidavit has deposed that he is the absolute owner of 20 O.S.No.6187/2009 the suit 'A' schedule property. His mother Smt.Gowramma acquired right, title and interest over the suit 'A' schedule property by way of gift deed executed in her favour by her grandmother. P.W.1 has further stated in his examination-in- chief that his mother conveyed the right, title, possession and interest in schedule 'A' property to him by way of Will executed by her. P.W.1 has further stated in his examination-in-chief that the defendant No.4 is the owner of suit 'B' schedule property. The defendant No.4 has constructed multistoried apartment in 'B' schedule property by entering into Joint Development Agreement with defendant No.5. P.W.1 has further stated in his examination-in-chief that the defendants No.4 and 5 have obtained plan in L.P.No.330/2006-07 dated 26.09.2006 for construction of apartment in suit 'B' schedule property, which is valid upto 25.09.2008. P.W.1 has further stated in his examination-in-chief that the said plan is only a proposed plan presented to the Karnataka Town and Country Planning Authorities. The plan does not have any permission that is granted under the Karnataka Town and Country Planning Act. P.W.1 has further stated in his examination-in-chief that there was no permission to commence the construction work in respect of the schedule 'B' property. No proper approval from the appropriate authorities was also obtained for change of land use to agriculture to non-agricultural. P.W.1 has further stated in his examination-in-chief that the defendants No.1 to 3 21 O.S.No.6187/2009 have accepted the plan and made entries in their records, which evidently establish that the alleged proposed plan has been accepted by the defendants No.1 to 3 authorities witout it being sanctioned and approved. P.W.1 has further stated in his examination-in-chief that the construction undertaken now complete in respect of suit 'B' schedule property situated on the eastern side of suit 'A' schedule property is illegal and unlawful constructions without there being any sanctioned plan and license. P.W.1 has further stated in his examination-in-chief that the said constructions are opposed to the Karnataka Municipal Corporation Act. P.W.1 has further stated in his examination-in- chief that the defendants No.1 to 3 have indicated in the alleged fraudulent plan a opening on the schedule 'A' property to form a entrance/ a road, for the building illegally and fraudulently constructed in respect of the schedule 'B' property. The defendants No.1 to 3 are now making all efforts to form a road in his suit 'A' schedule property in order to put the said property for use as ingress and egress to the apartments constructed on the schedule 'B' property illegally and unlawfully. P.W.1 has further stated in his examination-in-chief that the defendants No.1 to 4 all of a sudden came near schedule 'A' property belonging to plaintiff on 21.08.2009 and started attempting to form a road by leveling, metaling, chiseling and taring on the schedule 'A' property. P.W.1 has further stated in his examination-in-chief that hence he has filed 22 O.S.No.6187/2009 Writ petition in W.P.No.25760/2009 before the Hon'ble High Court of Karnataka. The said petition was withdrawn. P.W.1 has further stated in his examination-in-chief that he has also filed O.S.No.37/2009 against the defendant No.2 for the relief of perpetual injunction pertaining to suit 'A' schedule property. P.W.1 has further stated in his examination-in-chief that the suit 'A' schedule property was never used as a road either by parties to the suit or villagers or their ancestors either to worship the deity of Lord Muneshwara or otherwise at any point of time. P.W.1 has further stated in his examination-in-chief that the apartment building constructed by defendant No.4 and 5has a separate distinct entry on the eastern side of their property and suit 'A' schedule property is not the only ingress and egress to property in Sy.No.4/2 as alleged by the defendants. Hence, P.W.1 in his examination-in-chief has prayed to decree the suit as prayed for in the suit plaint.
14. P.W.1 apart from adducing his oral evidence has produced certain documents. Ex.P.1 to 5 are the photos. Ex.P.5
(a) is the CD of Ex.P.1 to 5 photos. Ex.P.6 is the application filed by the plaintiff under RTI Act to BBMP asking to provide approved sanction plan of Sy.No.4/2 and the completion order copy. Ex.P.7 is the certified copy of gift deed executed by Venkatalakshmi W/o Damodara Raju in favour of Gowry on 28.11.1981 with respect to Sy.No.4/1 measuring 2 acre 35 23 O.S.No.6187/2009 guntas. Ex.P.8 is the endorsement issued by Bommanahalli Municipality on 11.03.2002 about existence of Khatha of suit schedule property in the name of plaintiff. Ex.P.9 and 10 are the certified copies of receipts. Ex.P.11 is the treasury challan. Ex.P.12 is the RTC of Sy.No.4/1 from 2011-12 and 2013-14. The name of Gowry is mentioned as the owner to the extent of 20.8 guntas of land. The name of the plaintiff is mentioned as the owner to the extent of 29.05 guntas of land. The name of the plaintiff is mentioned as per Mr.No.2/2003-04.
15. The plaintiff has not produced the certified copy of the mutation bearing No.2/03-04 or Mr.No.1/81-82 mentioned in Ex.P.12. Ex.P.13 is the endorsement issued by BBMP dated 18.06.2009 to the RTI application submitted by plaintiff. Ex.P.14 is the endorsement dated 21.07.2009 issued by BBMP to the plaintiff under RTI Act stating that the information sought for by him cannot be furnished. Ex.P.15 is the certified copy of endorsement issued by PSI of J.P.Nagar. Ex.P.16 is the RBI challen. Ex.P.17 is the legal notice dated 31.05.2009 issued by the plaintiff to the officials of BESCOM. Ex.P.18 is the legal notice dated 31.05.2009 issued by the plaintiff to the officials of BBMP. Ex.P.19 is also the copy of legal notice issued by the plaintiff to the officials of BBMP on 04.06.2009. Ex.P.20 is the certified copy of order sheet in O.S.No.37/2009. Ex.P.21 is the certified copy of the plaint in O.S.No.37/2009. The suit was filed 24 O.S.No.6187/2009 by the plaintiff against the defendant No.4 for the relief of permanent injunction order with respect to suit 'A' schedule property of the present suit. Ex.P.22 is the endorsement given by Police Inspector of J.P.Nagar FIR stating that complaint copy of Cr.No.599/2008 cannot be given to plaintiff under RTI Act. Ex.P.23 is the notarized attested copy of Will Deed dated 30.09.1994 executed by M.Gowry,W/o Govindaraju in the name of her daughter Shoba. Ex.P.24 is the rough hand sketch of suit 'A' and 'B' schedule properties submitted by the plaintiff.
16. Out of the aforesaid documents produced on behalf of the plaintiff, only Ex.P.8 is pertaining to suit 'A' schedule property. Suit 'A' schedule property as described in the suit pliant is the property bearing No.551/559/525, 4/1 B-2, situated within Sy.No.4/1 of Sarakkikere, Uttarahalli Hobli, Bengaluru South Taluk presently situated within BBMP limits measuring into 46X40 feets, bounded East by property of defendant No.4, West by Road, North by Krishnappa Layout and South by plaintiff's property.
17. The Learned counsel for the plaintiff has argued that towards eastern side of suit 'A' schedule property, 'B' schedule property is situated. The defendant No.4 is the owner of 'B' schedule property and he has got access to his property through the road situated towards east of his property. It is further argued by the Learned counsel for the plaintiff that the 25 O.S.No.6187/2009 original sanction plan to construct apartment on 'B' schedule property not produced. The conversion order of 'B' schedule property passed by competent authority from agriculture land to non-agricultural land is also not produced by the defendants. It is further argued by the Learned counsel for the plaintiff that in Ex.P.1 photo which was taken from eastern side of 'B' schedule property, road is visible for entry into the 'B' schedule property. The defendants have not produced any layout plan. The defendants have also not claimed any easementary right over the 'B' schedule property. The devotees of lord Muneshwara Temple have also not made any claim of easementary right of way over the schedule 'A' property. It is further argued by the Learned counsel for the plaintiff that the defendants having no manner of right, title or interest over the 'A' schedule property belonging to the plaintiff or trying to interfere with it and they are trying to use it as road to reach 'B' schedule property and hence, the Learned counsel for the plaintiff has prayed to grant the relief as prayed for in the suit plaint.
18. The Learned counsel for the defendants has argued that the plaintiff is seeking the relief with respect to the property to which he has got no right. The plaintiff is not seeking the relief of declaration of his right over the 'A' schedule property. It is further argued that the plan was sanction by CMC, Bommanahalli for construction of apartment 26 O.S.No.6187/2009 in the year 2006 and hence, it is nothing to do with the BBMP bye-laws and plan sanctioned by CMC. It is further argued by the Learned counsel for the defendants that the relief of mandatory injunction is sought for by the plaintiff without seeking the relief of declaration. Two apartments are constructed in suit 'B' schedule property and the plaintiff has not impleaded all the owners of flats situated in the suit 'B' schedule property. It is further argued by the Learned counsel for the defendants that P.W.1 during the course of cross- examination has admitted that he do not know 'B' schedule property and he has no right over. It is further argued by the Learned counsel for the defendants that prayer sought for by the plaintiff cannot be granted and they are to be granted by Hon'ble High Court of Karnataka by exercising writ jurisdiction. It is further argued by the Learned counsel for the defendants that the plaintiff has not proved the Will in accordance with law. It is further argued by the Learned counsel for the defendants that all the 80 apartments owners will be effected by the decree and as such, all the apartments owners are proper and necessary parties to the suit. The construction made in the 'B' schedule property will not affect the plaintiff. Hence, the Learned counsel for the defendants has prayed to dismiss the suit filed by the plaintiff.
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19. Before discussing the merits of the case of the plaintiff, I am of the opinion that it is necessary to discuss about the defence of the defendants. The defendant No.1 is the Commissioner of BBMP, defendant No.2 is Joint Commissioner and Assistant Director of BBMP and defendant No.3 is Assistant Engineer of BBMP. All these defendants have filed the written statement. They in their written statement have denied the allegations made against them, that they have helped the defendants No.4 and 5 to complete the construction in 'B' schedule property illegally without any approved sanction plan and by violating the builders bye-laws. The defendants No.1 to 3 in their written statement have taken the contention that Commissioner of CMC, Bommanahalli had issued approved plan for securing conversion of land from Government of Karnataka for the purpose of construction of building in 'B' schedule property and the owners taking advantage of the same have constructed the building unauthorizedly without valid sanction plan. It is further contention of the defendants No.1 to 3 that the said approved plan of CMC is not created or fabricated and defendant No.3 has not committed any fraud. It is to be noted here that the defendants No.1 to 3 have not sought for any relief either in respect of suit 'A' and 'B' schedule property. Further defendants No.1 to 3 have also not adduced any oral evidence on their 28 O.S.No.6187/2009 behalf before the court in support of their contention in the written statement.
20. The duty of the defendants No.1 to 3 under KMC Act is only to see whether the construction made by the plaintiff and defendant No.4 in their respective properties is in accordance with building bye-laws or not and whether they have constructed the building by obtaining proper sanction plan or not and whether it is in accordance with sanction plan or not. If the defendants No.1 to 3 found that any construction made with the limits of its jurisdiction is not in accordance with building bye-laws or not in accordance with building sanction plan or if there is deviation in the construction, it is for the defendants No.1 to 3 to take proper legal action against the owner of the property for demolition of illegally constructed building in accordance with provision of KMC Act. In this case, the defendants No.1 to 3 have not produced any documents to show that the construction of apartment by defendants No.4 and 5 in the suit schedule property is illegal and it is against to the building bye-laws and it was constructed without obtaining valid sanction plan. They have also not produced any documents to show that they have initiated action against defendants No.4 and 5 under Sec.321 of KMC Act.
21. It is to be noted here that the plaintiff herein has challenged the sanction plan bearing L.P.No.330/2006-07 29 O.S.No.6187/2009 dated 26.09.2006 with respect to 'B' schedule property before the Hon'ble High Court of Karnataka in W.P.No.25760/2009. The defendants have produced the certified copy of the memorandum of writ petition filed by the plaintiff herein at Ex.D.6. In the said writ petition, the defendants No.1 and 2 of the present suit and defendants No.4 and 5 of the present suit were also made as parties. In the said writ petition, the plaintiff has specifically challenged the validity of the sanction plan and license issued in L.P.No.330/2006-07 dated 26.09.2006. It is alleged in the said writ petition that the defendants No.1 and 2 have granted the said sanction plan and license to defendants No.3 and 4 for the purpose of construction of multistoried apartments building and illegally allowed the main opening in the said multistoried building in the property of the plaintiff i.e., suit 'A' schedule property. The plaintiff herein has sought for same relief is similar to the Hon'ble High Court of Karnataka in the said writ petition which relief No.1 to 3 claimed by him in this suit against the defendants No.1 to 5.
22. In the said writ petition, the plaintiff has clearly averred the collusion between the defendants No.1 to 5. In the said writ petition, the plaintiff has sought for the writ of certiorari for quashing the sanction plan which is mentioned above, granted by defendants No.1 and 2 illegally and unauthorizedly in favour of defendant No.3 and 4. Further in the said writ 30 O.S.No.6187/2009 petition, the plaintiff has also sought for the relief of writ of mandamus against defendants No.1 and 2 to demolish the illegally and unauthorizedly constructed multistoried apartment building in respect of the property of the defendant No.4 herein. Thus in the said writ petition, the defendants have admitted the fact that sanction plan was granted by the defendants No.1 and 2 herein in favour of defendants No.4 and 5.
23. It is further to be noted here that the defendants have produced the certified copy of the order of Hon'ble High Court of Karnataka in W.P.No.25760/2009 dated 11.09.2009 at Ex.D.7. From Ex.D.7, it could be seen that the Learned counsel for the petitioner has submitted before the Hon'ble High Court of Karnataka seeking permission to withdraw the writ petition with liberty to the petitioner to question the sanction plan by filing a appeal before the appellate authority. In view of the said submission, the said writ petition filed by the plaintiff was came to be dismissed by reserving liberty to the petitioner to approach the competent authority to question the validity of sanction plan issued in the name of defendants No.4 and 5. The Hon'ble High Court of Karnataka as not given any liberty to the plaintiff to approach the civil court to challenge the sanction plan. On the other hand, in the suit plaint at para No.13, it is averred that the Hon'ble High Court of Karnataka in the order of W.P.25760/2009 has held that there is alterntive remedies to 31 O.S.No.6187/2009 the plaintiff i.e. by way of present suit and therefore allowed the plaintiff to withdraw the writ petition. But the said averments made by the plaintiff in the suit plaint is completely wrong. The Hon'ble High Court of Karnataka has not given any liberty to the plaintiff to approach the civil court and to file suit as an alternative remedy to seek the reliefs as prayed for in the said writ petition. But Hon'ble High Court of Karnataka has dismissed the said writ petition only by reserving the liberty to approach the appellate authority. The appellate authority as mentioned in the Hon'ble High Court of Karnataka is not this civil court. The appellate authority as mentioned in the order of Hon'ble High Court of Karnataka is the appellate authority as mentioned under KMC Act.
24. In the suit plaint, the plaintiff is seeking the relief of declaration to declare the sanction plan in L.P.No.330/2006-07 dated 26.09.2006 in respect of schedule 'B' property dated 26.09.2006 is illegal, unlawful, contrary and arbitrary to building bye-laws of BBMP. The validity of the sanction plan issued by the CMC, Bommanahalli or by defendants No.1 and 2 cannot challenged before the civil court. The civil court has no jurisdiction to declare any sanction plan issued by competent authority for construction of any building or apartment in any of the apartments situated within the limit of defendant No.1 or CMC as the case may be as illegal. The same has to be 32 O.S.No.6187/2009 challenged by competent appellate authority as provided under the KMC Act. This court cannot decided the validity of the sanction plan in the civil suit. This court cannot grant the decree of declaration by declaring any of the sanction plan issued by defendants No.1 and 2 or CMC as illegal and unlawful and contrary to the building bye-laws. It is for the appellate authority, under the KMC Act to declare any sanction plan as illegal unlawful and contrary to the building bye-laws. The plaintiff is aware about the said fact. Accordingly the plaintiff before the Hon'ble High Court of Karnataka in W.P.25760/2009 has got withdraw the said writ petition seeking liberty to question the validity of plan before appellate authority. Even though the plaintiff has got withdraw the writ petition seeking liberty to question the validity of plan before the appellate authority, the plaintiff has not produced any materials to show that he has questioned the plan before the appellate authority and the appellate authority has set aside the said plan.
25. The plaintiff has not produced any documents before the court to show that the plan with respect to suit 'B' schedule property bearing L.P.No.330/2006-07 dated 26.09.2006 has been set aside by any appellate authorities by holding that it is illegal and contrary to building bye-laws. The said sanction plan dated 26.09.2006 in L.P.No.330/06-07 is not 33 O.S.No.6187/2009 held as illegal and contrary to building bye-laws only by any competent authorities as provided under KMC Act or by Hon'ble High Court of Karnataka. Hence, I am of the opinion that the plaintiff has failed to prove Issue No.1. Accordingly, I answer Issue No.1 in Negative. Since it is held that this court has no jurisdiction to declare the said plan as illegal, arbitrary and contrary to building bye-laws of BBMP, I am of the opinion that the relief No.(a) i.e., decree for declaration to declare the sanction plan bearing L.P.No.330/2006-07 dated 26.09.2006 as prayed for by the plaintiff as illegal, unlawful and contrary to building license of BBMP as prayed for by the plaintiff cannot be granted. As such, the plaintiff is not entitled for the said relief as prayed for.
26. Further the plaintiff has sought for the relief of mandatory injunction directing the defendants No.1 to 3 to demolish the entire building on the 'B' schedule property without there being sanction plan, license and change in land use. As it is stated earlier, P.W.1 in his examination-in-chief has also deposed that the defendants No.4 and 5 have constructed apartment in 'B' schedule property without there being any sanction plan, license and without converting the land from agricultural use to non-agricultural use. 'B' schedule property as described in the schedule of the plaint is Sy.No.4/2, situated at Sarakkikere, Uttarahalli Hobli, Bengaluru South Taluk, 34 O.S.No.6187/2009 measuring 43,200 sq.ft. The defendants have not disputed the fact of construction of apartment in the suit 'B' schedule property by defendant No.4 by entering into Joint Development Agreement with defendant No.5. It is an admitted fact that the defendants No.4 and 5 have constructed apartment in the suit 'B' schedule property. P.W.1 has not disputed the fact that the defendant No.4 is the owner of the suit 'B' schedule property. P.W.1 during the course of his cross-examination has clearly admitted the fact that the defendant No.4 is the owner of the suit 'B' schedule property. Further it is to be noted here that the defendant No.4 has adduced his oral evidence before the court as D.W.1. D.W.1 was cross-examined by plaintiff. During the course of cross-examination of D.W.1, the plaintiff has put suggestion that, the D.W.1 is the owner of suit 'B' schedule property and the said suggestion was admitted by D.W.1 during the course of cross-examination and the same is admitted by him. Hence, I am of the opinion that no more discussion is necessary regarding the ownership of defendant No.4 with respect to the suit 'B' schedule property.
27. it is the allegation of the plaintiff that the defendants No.4 and 5 by colluding with defendants No.1 to 3 have illegally constructed apartment in the suit 'B' schedule property without obtaining the sanction plan, license from the competent authorities and without changing the nature of the 35 O.S.No.6187/2009 land from agricultural to non-agricultural use. On the other hand, the defendants have contended that the plan was obtained from CMC Bommanahalli for construction of the building and the apartment constructed in the suit 'B' schedule property is in accordance with law. The defendants have not produced any approved layout plan issued by BBMP for construction of apartment in the suit 'B' schedule property. It is the contention of the defendants that since the suit schedule property was situated within the limits of CMC, Bommanahalli at the time of construction of the apartment, there is no necessity of obtaining the approved plan from the BBMP. The defendants have relied upon Ex.D.24 as the license issued by CMC Bommanahalli for construction of apartment in the suit 'B' schedule property. Ex.D.24 is not the license issued by the CMC, Bommanahalli to defendant No.4 for construction of apartment in the suit 'B' schedule property. It is mentioned in the said letter that if necessary fee is paid and further action will be taken regarding the license etc. The defendants have produced Ex.D.25 to show that the building license fee as directed by the CMC was paid to CMC, Bommanahalli. The defendants have produced Ex.D.26 and D.28 to show that the necessary permission was given by Karnataka Sate Pollution Control Board and water connection was also sanctioned by BWSSB to the apartments constructed in the 'B' schedule property.
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28. But the defendants have not produced any approved sanction plan issued by the competent authorities for construction of the apartment in the suit 'B' schedule property. Further no license is also produced by the defendants for construction of the apartment in the suit 'B' schedule property. Further the defendants have also not produced the completion certificate issued by the competent authority acknowledging the completion of the apartment in the suit 'B' schedule property in accordance with sanction plan or license. Further as it is stated earlier, the defendants No.1 to 3 have also stated in their written statement that the defendant No.4 is unauthorizedly constructed the apartment without valid sanction plan. From the materials on record and from the documents produced on behalf of the defendants, it is clear that there is no approved sanction plan for construction of the apartment in the suit 'B' schedule property. Further there is no license issued by the competent authority for construction of the apartment in the suit 'B' schedule property. It is an admitted fact that the suit schedule 'B' property is an agricultural land. The defendants have not produced any conversion order issued by the Deputy Commissioner permitting for conversion of the said agricultural land into non-agricultural use i.e., for the purpose of construction of the apartment. The defendants have failed to produce any documents to show that the suit 'B' schedule 37 O.S.No.6187/2009 property has been converted from agricultural use to non- agricultural use.
29. D.W.2 in his cross-examination has also clearly admitted that there is no sanction plan in the documents produced by him with respect to 'B' schedule property. D.W.3 in his cross-examination has stated that he has obtained permission from CMC for construction of apartment in 'B' schedule property. D.W.3 in his cross-examination has stated that he has obtained permission from CMC for construction of apartment in 'B' schedule property. But no such plan is produced. D.W.3 in his cross-examination has stated that in the year 2006 NA order has been passed. But he has further stated that the said NA order is with him. But he has not produced any such NA order. Under these facts and circumstances and as per the materials on record, the contention of the defendant No.3 to 6 that the apartment in 'B' schedule property is constructed with the approved plan of competent authority cannot be acceptable one.
30. But only on the ground that the defendants have failed to produce documents to show that they have obtained sanction plan for construction of apartment in 'B' schedule property and the only on the ground that they have not produced license and NA order pertaining to the 'B' schedule property, the relief of mandatory injunction as prayed for by the 38 O.S.No.6187/2009 plaintiff to demolish the entire apartment constructed in the suit 'B' schedule property cannot be granted. The plaintiff is not the owner of the 'B' schedule property. P.W.1 in the cross- examination has clearly admitted that he has got no right over the 'B' schedule property. It is an admitted fact that 'B' schedule property is belonging to defendant No.4. The construction in the 'B' schedule property is done within the measurements of 'B' schedule property. It is not the case of the plaintiff that the apartment constructed on the 'B' schedule property is on his property or apartment has been constructed by encroaching his property. The plaintiff is not claiming right, title or interest over the apartment constructed in suit 'B' schedule property. Further if the contention of the plaintiff that the apartment in the 'B' schedule property is illegally constructed without obtaining sanction plan, license or NA order, then also this court has also jurisdiction to pass order of mandatory injunction directing the defendants No.1 to 3 to demolish the entire apartment constructed on suit 'B' schedule property. The defendants No.1 to 3 have to hold separate enquiry as provided under the KMC Act and it is within the power of defendants No.1 to 3 to demolish the unauthorized or illegally constructed building after following the due process as following under KMC Act and after satisfying itself about the illegal construction. Without establishing the ownership right over the 'B' schedule property by the plaintiff or unless the plaintiff has shown his right, title or 39 O.S.No.6187/2009 interest over the 'B' schedule property, the relief of mandatory injunction as prayed for by the plaintiff to the defendants No.1 to 3 to demolish the entire building constriction on 'B' schedule property cannot be granted by this court. As such, I am of the opinion that the plaintiff is not entitled for the relief of mandatory injunction as prayed for in prayer No.B of the suit plaint.
31. According to the contention of the plaintiff, the defendants are trying to encroach upon suit 'A' schedule property by any act of trespass for the purpose of formation of road to provide ingress and egress belonging to defendants No.1 to 6. Accordingly, Issue No.2 was came to be framed. The plaintiff has also sought for the relief of mandatory injunction to the defendants No.1 to 3 not to encroach suit 'A' schedule property by an act of trespass for the purpose of formation of road, provide ingress and egress to 'B' schedule property belonging to defendants No.4 to 6. The plaintiff is also seeking the relief of permanent injunction restraining the inmates who are represented by defendant No.6 from utilizing the suit 'A' schedule property as the road in respect of apartment constructed by defendants No.4 and 5 on suit 'B' schedule property. Since the plaintiff is claiming the relief of mandatory injunction with respect to suit 'A' schedule property, it is for the plaintiff to establish the fact that the suit 'A' schedule property is belonging to him and he has got right, title or interest over the 40 O.S.No.6187/2009 suit 'A' schedule property. If the plaintiff establishes his right over the suit 'A' schedule property, then only the question of he entitled for the relief as prayed for in prayer No.C & D of the suit plaint would arises.
32. D.W.1 in his cross-examination has admitted the fact that suit 'A' schedule property is situated in Sy.No.4/1 and it is belonging to the ownership of the plaintiff. But the defendants have denied the ownership of the plaintiff over the suit 'A' schedule property and exclusive possession of the plaintiff with respect to the 'A' schedule property. Only on the admission of D.W.1 in the cross-examination that the suit schedule property is situated in Sy.No.4/1, it cannot be come to the conclusion that the plaintiff has proved the boundaries and measurements and identity of suit 'A' schedule property and he has proved his right over the suit 'A' schedule property. The plaintiff has to prove the description and identity of the suit schedule property with his own independent oral and documentary evidence. The fact of suit 'A' schedule property is situated on Sy.No.4/1 is not in dispute. The fact that the said property is belonging to the plaintiff is disputed by other defendants. So far as, defendant No.4 is concerned, it is to be noted here that the plaintiff No.1 has earlier filed O.S.No.37/2009 against the defendant No.4 seeking the relief of permanent injunction. The certified copy of the plaint and order sheet in O.S.No.37/2009 is produced by 41 O.S.No.6187/2009 the plaintiff at Ex.P.20 and P.21. The certified copy of judgment in the said suit is not produced by the plaintiff. According to the plaintiff, the said suit came to be decreed and permanent injunction order is granted in favour of the plaintiff against the defendant No.4.
33. It is to be noted here that during the course of cross-examination of D.W.1, no suggestions are put to him regarding filing of O.S.No.37/2009. But during the course of cross-examination of D.W.2, it was suggested that on 24.02.2016, the suit was came to be decreed and it is held that the defendant No.4 should not use the space situated towards western side of his apartment. The said suggestions are admitted by D.W.2 during the course of cross-examination. The defendants have also produced the copy of the deposition of P.W.1 in O.S.No.37/2009 at Ex.D.1. The plaint of O.S.No.37/2009 produced by the plaintiff at Ex.P.21 goes to show that only defendant No.4 is party to the said suit. The suit schedule property of the said suit as described in the schedule is similar to that of the schedule mentioned in the present suit. The other defendants of the present suit are not party to the said suit. Even though this suit as well as O.S.No.37/2009 are pending with respect to the same property, the plaintiff has not made other defendants of this suit as parties in O.S.No.37/2009. It is the contention of the other defendants 42 O.S.No.6187/2009 that the plaintiff has obtained collusive decree in O.S.No.37/2009 by colluding with defendant No.4. Since the decree in O.S.No.37/2009 is passed against the defendant No.4, it will be binding upon defendant No.4 only. The decree of injunction is decree in personam. It is not binding upon other persons. The decree of injunction is binding only to the parties to the decree. Since other defendants are not party to O.S.No.37/2009, the decree of injunction passed in the said case will not be binding upon the other defendants. Since the other defendants are not party to the said suit, the decree in O.S.No.37/2009 also cannot be considered as binding upon this court so far as other defendants are concerned. The plaintiff cannot take undue advantage of the decree in O.S.No.37/2009 and the contend that he has proved his right over the suit 'A' schedule property on the ground that in O.S.No.37/2009 his right in suit 'A' schedule property is considered. But in this suit the plaintiff has to prove independently his right over the suit 'A' schedule property and he has prove correct identity and description of the suit 'A' schedule property with his own independent evidence.
34. Out of the documents produced by the plaintiff as mentioned above, only Ex.P.8 is pertaining to the suit 'A' schedule property. The suit 'A' schedule property is the property measuring 46X40 feet in Sy.No.4/1 bearing property 43 O.S.No.6187/2009 No.551/559/525. According to the plaintiff, the suit schedule property is came to him from his mother through the Will Deed executed by her. The plaintiff in the suit plaint or in his examination-in-chief has not specifically mentioned in details regarding the Will Deed executed by his mother in his favour. The plaintiff has not specifically pleaded when her mother has executed Will Deed in his favour with respect to the suit schedule property and when he made an application to the concerned authorities to enter his name as the owner of the suit 'A' schedule property and to change the Khatha of the suit 'A' schedule property in his name. According to the plaintiff, Sy.No.4/1 was gifted to his mother by her grandmother and hence is mother has acquired right over the Sy.No.4/1. The plaintiff in the suit plaint or in the affidavit has not specifically pleaded the details of gift deed alleged to have been executed in favour of his mother. The plaintiff has produced the certified copy of the one gift deed dated 28.11.1981 at Ex.P.7. The said gift deed was executed by one Vijayalakshmi W/o Damodara in favour of Gowry i.e., mother of the plaintiff. The said gift deed is with respect to Sy.No.4/1 measuring 2 acre 35 guntas of land. The plaintiff has not produced any revenue documents pertaining to the said survey number including the mutation and RTC showing the name of his mother Gowry as the owner to the extent of 2 acre 35 gutnas of land on the basis of the gift deed. The plaintiff has produced only one RTC of Sy.No.4/1 at 44 O.S.No.6187/2009 Ex.P.12. The name of Gowry is mentioned as owner to the extent of 20.08 guntas as per MR.No.1/81-82. The plaintiff has not produced the said mutation. In Ex.P.12, the name of the plaintiff is shown as the owner to the extent of 29.05 guntas of land as per MR.No.2/2003-04. The name of sister of the plaintiff is shown as the owner to the extent of 18.07 guntas as per MR.No.2/2003-04. The plaintiff has not produced the said mutation.
35. The plaintiff has produced one notarized copy of Will at Ex.P.23. The said Will Deed is executed by Gowry W/o Govindaraju. In the said Will Deed, there is no reference about bequeathing of suit 'A' schedule property to the plaintiff. There is no reference about the suit 'A' schedule property in the said Will Deed. The plaintiff has not produced original Will Deed, alleged to have been executed by his mother in his favour with respect to the suit schedule property. Further the plaintiff has not proved the due executed of the Will Deed by his mother in his favour with respect to the suit 'A' schedule property. The plaintiff is claiming that he has acquired right, title and possession over the suit 'A' schedule property on the basis of Will Deed alleged to have been executed by his mother. Hence, it is for the plaintiff to specifically pleaded the fact when the Will Deed was executed by his mother and with respect to what property Will has been executed by his mother and it is for the 45 O.S.No.6187/2009 plaintiff to produce the original Will Deed and it is for the plaintiff to prove the due execution of Will Deed by his mother in accordance with law. If the plaintiff has proved the due executed of the Will Deed, then only the contention of the plaintiff that he has acquired the right under the Will Deed can be acceptable one. But the plaintiff has failed to prove the alleged Will Deed in accordance with Sec.68 of Indian Evidence Act.
36. The contention of the plaintiff that he has acquired right over the suit 'A' schedule property through Will Deed as alleged in the suit plaint cannot be acceptable one. Only on the ground that Sy.No.4/1is belonging to the plaintiff's family, it cannot be come to the conclusion that the suit 'A' schedule property is belonging to the plaintiff. The defendants have specifically denied during the course of cross-examination of P.W.1 by putting suggestion that his grandmother has not executed any gift deed in favour of his mother and his mother has got created the gift deed. During the course of cross- examination of P.W.1 at page No.22, para No.10, P.W.1 has stated that Sy.No.4/1 came to mother from his grandmother through gift deed dated 28.11.1981. P.W.1 during the course of his cross-examination has stated that he do not remember when he has changed the Khatha of suit schedule property in his name. He has further stated in his cross-examination that 46 O.S.No.6187/2009 when he got changed Khatha of the suit 'A' schedule property, the property was situated within CMC limits. P.W.1 in his cross- examination has stated that apart from suit 'A' schedule property some more portion came to his share through Will Deed. P.W.1 in his cross-examination at page No.27 has stated that he has not produced the said Will Deed. When it has suggested to him that he has got no impediment to produce the said Will Deed, he has replied that the Will Deed is not available with him. P.W.1 in his cross-examination at Page No.27 has further stated that he is claiming his right and interest over the suit property only on the basis of Will Deed, but the plaintiff has failed to produce the original Will Deed and he has failed to prove the said Will Deed as per Sec.68 of Indian Evidence Act. P.W.1 in his cross-examination at Page No.27 has further stated that he has got changed Khatha of the suit 'A' schedule property and other properties came to him in Sy.No.4/1. But he has not produced any Khatha transferred in his name with respect to the properties alleged to have been came to him through Will Deed. The plaintiff has not produced any application submitted by him for change of Khatha in Sy.No.4/1 on the basis of Will Deed. Further the plaintiff has not produced any mutation effected in his name to change the Khatha of the suit schedule property. Further the plaintiff has not produced any order passed by CMC to change the Khatha of the suit 'A' schedule property in his name.
47O.S.No.6187/2009
37. As per Ex.P.12 RTC, it is clear that Sy.No.4/1 is still agricultural property. The extent of the said property is shown as 2 acre 32 guntas of land. The name of the plaintiff is shown as the owner in possession of 29.05 guntas of land as per MR.No.2/2003-04. Whereas Ex.P.8 endorsement was issued by CMC in the year 2002. Hence, it is clear that as on the date of issuance of Ex.P.8, Sy.No.4/1 was still an agricultural land. The plaintiff has not produced copy of MR.No.2/2003-04 mentioned in Ex.P.12. The plaintiff has not produced any conversion order passed by competent authority with respect to suit 'A' schedule property in his name. On what basis, Ex.P.8 was issued in the name of plaintiff is not known. The plaintiff has not produced any document to prove on what basis Ex.P.8 endorsement was issued by CMC, Bommanahalli. The plaintiff has not produced any substantial document to prove that the property mentioned in Ex.P.8 has been bequeathed to him within the boundaries and measurements mentioned therein. The plaintiff has not produced any document to show that in whose name the property described in Ex.P.8 was earlier standing and how same was transferred to him. The plaintiff has not produced any document to show that the property as described in Ex.P.8 was earlier standing in the name of his mother and his mother has bequeathed the said property to him through the Will Deed. As such, only on the basis of Ex.P.8 endorsement issued by CMC, Bommanahalli, it 48 O.S.No.6187/2009 cannot be come to the conclusion that the plaintiff is the owner in possession of the property measuring 46X40 feet as mentioned in Ex.P.8 within the boundaries shown in said document. The very boundaries is shown in schedule of suit plaint as 'A' schedule property. The plaintiff has failed to produce any sufficient substantial documents to prove the fact of acquisition of any right, title or interest over the suit 'A' schedule property and acquisition of possession of suit 'A' schedule property within the boundaries and measurements mentioned in the suit plaint.
38. Only on the ground that the defendants have admitted the existence of suit 'A' schedule property and admitted that suit 'A' schedule property is situated in Sy.No.4/1, it cannot be come to the conclusion that it is belonging to the plaintiff. Sy;4/1 totally measuring 2 acre 32 guntas of land. In Ex.P.12, RTC for the year 2012-13, 20.8 guntas of land situated in Sy.No.4/1 is standing in the name of Gowry, 0.02.07 guntas of land is standing in the name of Govindaraju, 29.05 guntas of land is situated in the name of Mohan Kumar and 18.07 guntas of land is standing in the name of Shoba. The said plaintiff has not produced any documents to show that the said property was got surveyed and the boundaries of the property given to him has been bifurcated and boundaries of his property has been fixed. Further the plaintiff has not produced any 49 O.S.No.6187/2009 documents to show that the property shown in Ex.P.24 sketch is situated within the property allotted to him or within the property given to him in Sy.No.4/1. P.W.1 in his cross- examination at Page No.45 Para No.41, has voluntarily stated that Sy.No.4/1 is converted as per the order of DC, Bengaluru. P.W.1 in his cross-examination at Page No.45 Para No.41 has further stated that suit 'A' schedule property is a site. P.W.1 in his cross-examination has stated that they are not applied for sanction of layout plan in respect of Sy.No.4/1 measuring 2 acre 32 guntas of land before the competent authority. P.W.1 in his cross-examination has stated that they have not secured the lay out plan approved from concerned authority. P.W.1 in his cross-examination has stated that some portion in Sy.No.4/1 has been sold to the some persons . He has stated that the said portions were sold as converted land to the purchaser and he do not remember what is extent of area sold and he do not know how much area has been retained and he has not produced any materials about the same. P.W.1 in his cross-examination has further stated that they themselves have prepared a plan and demarcated the area and sold the property and he has no hurdle to produce the layout plan.
39. The plaintiff has not produce any materials to show how much land was sold by them to different persons in Sy.No.4/1 and how much property they have retained and to 50 O.S.No.6187/2009 show the boundaries and measurements of property retained by them in Sy.No.4/1. P.W.1 during the course of his cross- examination has admitted that during the year 2007-08, the suit 'A' schedule property came within the limits of BBMP. The plaintiff has not obtained any Khatha in his name from BBMP pertaining to suit 'A' schedule property. P.W.1 in the cross- examination at page No.33 has also stated that Sy.No.4/1 was converted for residential purpose and he has got documents of conversion order. But he has not produced any said conversion order. P.W.1 in his cross-examination has further admitted that in Ex.P.12, there is no reference about the conversion order of Sy.No.4/1. He has further admitted in his cross-examination that no layout plan is sanctioned to Sy.No.4/1. Hence, the plaintiff has failed to adduce any sufficient evidence to prove how the suit 'A' schedule property as described in schedule within boundaries and measurement shown in the schedule came to him and how he became the owner in possession of the suit 'A' schedule property. When the plaintiff has failed to establish his right, title and interest over the suit 'A' schedule property within the boundaries and measurements in the suit plaint, I am of the opinion that the plaintiff has got no right to seek the relief of mandatory injunction and permanent injunction in his favour with respect to suit 'A' schedule property.
51O.S.No.6187/2009
40. As it is rightly alleged by the plaintiff, the defendants No.4 to 6 are contended that the suit 'A' schedule property is the road available to them for having ingress and egress to suit 'B' schedule property and they have been using the same from the time of ancestors of the plaintiff in order to go to lord Muneshwara temple situated in 'B' schedule property and it is the only way to the flat owners of apartment situated in 'B' schedule property to have ingress and egress and there is no other alternative way to them. The defendants have contended that they have acquired easementary right of way over the suit 'A' schedule property. From the contention of the defendants, it is clear that the defendants are claiming easementary right over the suit 'A' schedule property.
41. But the defendants have not made any counter claim about their easementary right over the suit 'A' schedule property. The defendants have not sought for any declaration stating that the inmates of the plots constructed in the suit 'B' schedule property have got easementary right of way by way of suit 'A' schedule property. The defendant No.6 is the Apartment Owners Association of Mahaveer Spring Annex, constructed by defendants No.4 and 5. But the defendant No.6 in the written statement has also not made any counter claim about acquisition of any easementary right of way over the suit 'A' schedule property. Further the defendants No.4 and 5 have 52 O.S.No.6187/2009 also not made any counter claim in the written statement about existence of easementary right of way over the suit 'A' schedule property to have ingress and egress to suit 'B' schedule property. The defendants No.4 to 6 have not produced any documents to show that suit 'A' schedule property has been used by the defendant No.4 and his ancestors and now by the inmates of apartment as on to access 'B' schedule property.
42. It is the contention of the plaintiff that the defendants No.4 to 6 have got other alternative remedy towards eastern side of 'B' schedule property and the said road has been used by the flat owners of apartment constructed in the 'B' schedule property. Ex.P.1 photo was admitted by D.W.1 during the course of his cross-examination. He was admitted that in Ex.P.1 photo, road is visible infront of apartment and it was taken from eastern side direction. When it was suggested to D.W.1 during the course of his cross-examination, the gate is visible in Ex.P.1 photo is the main entry to the apartment, D.W.1 has stated that the said entry is for his four sisters who are residing in their apartments in order to go to their places. As it is stated earlier, the suit against the defendant No.4 filed by the plaintiff with respect to the suit 'A' schedule property bearing O.S.No.37/2009 was came to be decreed. The contention of the defendant No.4 that 'A' schedule property is only road to have ingress and egress to 'B' schedule property is 53 O.S.No.6187/2009 not accepted in the said suit. The said suit is not binding over the defendant No.4. The defendant No.4 has not produced any document to show that he has challenged the said decree before the competent court. The defendants No.4 and 5 have not produced any sanction plan pertaining to 'B' schedule property in order to prove the fact that 'A' schedule property is the only road available to them to have ingress and egress to the suit schedule property. Further the defendants No.4 to 6 have not produced any document to show that except 'A' schedule property there is alternative road to have access to suit 'B' schedule property. D.W.2 in his cross-examination has admitted that apart from western side road they have got road towards eastern side in order to go to apartment. He has also clearly stated in his cross-examination that the eastern side road visible Ex.P.1 is the only road available in order to have ingress and egress to the apartment. D.W.2 in his cross- examination has stated that except showing the eastern side in the plan of the apartment, there are no other document to show that eastern side road is the only way to apartment. D.W.2 in his cross-examination has clearly admitted that they are not using western side road in order to go to the apartment. But earlier they were using the said road. D.W.2 in his cross- examination has also admitted that O.S.No.37/2009 was decreed on 24.02.2016 and held that defendant No.4 should not using the western side road of the apartment. D.W.2 in his 54 O.S.No.6187/2009 cross-examination has also admitted that there is one lord Muneshwara temple inside the apartment complex. He has stated that since western side road is closed, there is no entrance to come to the temple. From the evidence of D.W.2 also it is clear that eastern side road is available to the defendants and 'A' schedule property is not the only way to reach the 'B' schedule property. As such, the contention of the defendants No.4 to 6 that suit 'A' schedule property is the only way to have ingress and egress to the suit 'B' schedule property and they have acquired easementary right of way over suit 'A' schedule property cannot be acceptable one. D.W.3 during the course of his cross-examination has also admitted that they have no other documents to show that suit 'A' schedule property is road. Hence, the contention of the defendants that they have acquired easementary right of way suit 'A' schedule property in order to have ingress and egress to the suit 'B' schedule property cannot be acceptable one. The defendants have failed to prove Issue No.5. Accordingly, I answer Additional Issue No.5 in Negative.
43. It is already discussed and held above that the plaintiff has failed to prove that the suit 'A' schedule property is exclusively belonging to him and suit 'A' schedule property as described in the suit plaint is belonging to his ownership right and he is in exclusive possession and enjoyment of the suit 55 O.S.No.6187/2009 property. Only on the ground that the defendants have failed to prove the acquisition of their easementary right over the suit 'A' schedule property as contended in written statement, it cannot be come to conclusion that the suit 'A' schedule property is belonging to the plaintiff. The defendants are not contending that suit 'A' schedule property is situated in Sy.No.4/2 belonging to the defendants. Further though the plaintiff has proved the fact that the suit 'A' schedule property is situated within Sy.No.4/1, this fact itself is not sufficient to prove the ownership and possession of the plaintiff over the suit 'A' schedule property. The plaintiff has not filed the suit on behalf of the other owners of the suit 'A' schedule property. But the plaintiff has filed the present suit by claiming that the suit 'A' schedule property is exclusively belonging to his ownership right and he has got title over the 'A' schedule property on the basis of Will Deed alleged to have been executed by his mother. The documentary evidence adduced on behalf of the plaintiff is not sufficient to prove the contention of the plaintiff that he has acquired exclusive ownership right and possession over the suit 'A' schedule property within the boundaries and measurements mentioned in the suit plaint. As such, doubt arises about the exclusive ownership right of the plaintiff with respect to suit 'A' schedule property and exclusive possession of the plaintiff with respect to the suit 'A' schedule property.
56O.S.No.6187/2009
44. The oral and documentary evidence adduced on behalf of the plaintiff as discussed above are not sufficient to clear the said doubts and to come to the specific conclusion that the suit 'A' schedule property is exclusively belonging to the plaintiff. When the plaintiff has failed to prove his exclusive possession and enjoyment over the suit property, alleged obstruction of the defendants No.4 to 6 with respect to suit 'A' schedule property as alleged in the suit plaint and alleged in the examination-in-chief of D.W.1 does not arises. Though the plaintiff has proved that gate was installed by the defendants on the eastern side of suit 'A' schedule property, there are no sufficient documents to show that the said gate is situated within the property belonging to the ownership of the plaintiff. The plaintiff has also not sought for any relief of declaration stating that the property where the defendants have installed gate is belonging to his ownership right and the said gate is installed by the defendants in the suit 'A' schedule property. Since it is need that plaintiff has failed to prove his exclusive possession and enjoyment over suit 'A' schedule property within the boundaries and measurement shown in the suit plaint, the question of defendants trying to trespass into the schedule property alleged to be that of plaintiff and the question of defendants forming road in it does not arises. When the plaintiff has failed to prove his possession and enjoyment over suit 'A' schedule property, alleged interference of defendants 57 O.S.No.6187/2009 with said alleged possession of plaintiff in any manner as stated in suit plaint does not arises. Hence, I am of the opinion that the plaintiff has failed to prove issue No.2 to 4. Accordingly, I answer Issues No.2 to 4 in Negative.
45. Additional Issue No.1:- The defendants have contended that the suit is barred by resjudicata in view of earlier proceedings in W.P.No.25760/2009, O.S.No.4031/2001 and O.S.No.37/2009. As it is discussed earlier, O.S.No.37/2009 was filed by the plaintiff only against the defendant No.4. The other defendants are not parties to the said suit. The relief claimed in this suit and as well as in O.S.No.37/2009 are different. Only 'A' schedule property of this suit is similar to that of suit schedule property in O.S.No.37/2009. In order to attract the principle of resjudicata, it has to be proved that the matter directly and substantially in issue in any suit has been directly and substantially issued in former suit in between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has heard and finally decided. The parties to this suit and O.S.No.37/2009 are different. The matter in dispute in this suit is not heard and finally decided between all the parties to the present suit. All essential ingredients of Sec.11 of CPC is not 58 O.S.No.6187/2009 fulfilled. As such, I am of the opinion that the disposal of O.S.No.37/2009 will not act as resjudicata to decide the issues involved in the present suit.
46. Further in W.P.No.25760/2009, the plaintiff has only challenged the validity of the license with respect to the 'B' schedule property in favour of the defendants No.4 and 5. Though the plaintiff in the present suit is challenging the validity of plan with respect to the suit 'B' schedule property, it cannot be considered that the order in W.P.25760/2009 will act as resjudicata to decide the present suit. W.P.25760/2009 was not decided on merits. But it was disposed of by giving liberty to the plaintiff to approach the competent appellate authority to challenge the plan. Similarly O.S.No.403182001 filed by the plaintiff against the defendant No.4 was also not decided on merits. The issues involved in this suit are not heard and finally decided by the court. As such, I am of the opinion that the present suit cannot be considered as barred by the principle of resjudicata in view of orders in W.P.No.25760/2009, O.S.No.4031/2001 and in O.S.No.37/2009. Accordingly, I answer Additional Issue No.1 in Negative.
47. Additional Issue No.2:- The defendants No.4 to 6 in their written statement have contended that the suit is bad for non-joinder of proper and necessary parties. According to them, the owners of the flats in the suit 'B' schedule property 59 O.S.No.6187/2009 are also proper and necessary parties to the present suit. According to them, flats constructed in the suit 'B' schedule property has already been sold to different owners and since the plaintiff is seeking the relief of demolition of entire building constructed on the 'B' schedule property, the owners of the said flats are proper and necessary parties. The plaintiff is seeking the relief of mandatory injunction to demolish the entire building constructed on 'B' schedule property only on the ground that the said building was constructed by violating the building bye- laws and without approved plan and building sanction plan. The plaintiff has filed the suit against the owners of the building i.e., defendant No.4 and the builder i.e., defendant No.5 on the ground of violation of the building bye-laws. He is not seeking the relief of mandatory injunction by contending that he has got title over the suit 'B' schedule property. As such, I am of the opinion that the defendants No.1 to 5 would be the competent persons to adjudicate the issue whether there is violation of any building bye-laws in construction of suit 'B' schedule property or not and whether it was constructed without any approved plan or not and without any conversion order. The presence of all apartment owners is not necessary for adjudication of the issues involved in the suit. As such, suit cannot be considered as bad for non-joinder of proper and necessary parties to the suit as contended by the defendant. Accordingly, I answer Additional Issue No.2 in Negative.
60O.S.No.6187/2009
48. Additional Issue No.3:- The defendants have contended that the plaintiff has not properly valued the suit claim and he has not paid the proper court fee. The plaintiff has filed the present suit for the relief of permanent injunction and mandatory injunction and also he is seeking the declaration to declare that alleged plan is against to building bye-laws of BBMP. The plaintiff has valued the suit claim as per Sec.24(d) and 26(a) and 26(c) of the Karnataka Court Fee and Suit Valuation Act. Valuation slip is also furnished along with the suit plaint. The plaintiff has valued the suit claim at Rs.1,000/- for each prayer for the purpose of jurisdiction. The suit filed by the plaintiff is not for declaration for any ownership right or not for any possession. By considering the relief sought for by in the suit plaint, the court fee paid for by the plaintiff is sufficient. Only on the ground that the valuation of the apartment construction in the suit schedule property is more than Rs.50 Crores as contended by the defendant No.6 and only on the ground that the plaintiff has sought for the relief of mandatory injunction for demolition of the 'B' schedule property, it cannot be come to the conclusion that the court fee paid by the plaintiff is insufficient. The court has to be calculate on the basis of the relief as sought for in the suit plaint. As such, I am of the opinion that it cannot be come to the conclusion that the suit is not properly valued. It can be come to the conclusion that valuation made by the plaintiff on the basis of reliefs claimed by 61 O.S.No.6187/2009 him is proper. Accordingly, I answer Issue No.3 in Affirmative.
49. Additional Issue No.4:- The plaintiff has contended that as on the date of the suit the defendant No.6 Association was existed. Whereas the defendant No.6 has contended in the written statement that as on the date of institution of the suit it was not in existence. Initially the suit was not filed by the plaintiff against the defendant No.6, but during the pendency of this suit the defendant No.6 was got impleaded. No notice was issued by the plaintiff to the defendant No.6 before filing this suit. This fact is also admitted by P.W.1 during the course of cross-examination. He has clearly admitted that he has not issued any notice to defendant No.6 at that time as no one was there. P.W.1 in his cross- examination at page No.59, has clearly admitted that when he filed the suit, the defendant No.6 apartment owners association was not in existence. When it was suggested to P.W.1 that the defendant No.6 Association was registered on 11.01.2011, he has stated that he do not know the said fact. Hence, it is clear that the defendant No.6 Association was not in existence as on the date of institution of the suit. As such, I am of the opinion that the plaintiff has failed to prove Additional Issue No.4. Accordingly, I answer Additional Issue No.4 in Negative.
62O.S.No.6187/2009
50. Issue No.5:- The defendants No.1 to 3 have contended that the suit is not maintainable for non-compliance of mandatory provision of Sec.482 of KMC Act. Even though the defendants No.1 to 3 have taken the said contention, no oral evidence is adduced on behalf of defendants No.1 to 3 to prove the same. The said contention of the defendant No.1 to 3 in the written statement is not proved by them by adducing their oral evidence. The defendants No.1 to 3 have failed to prove their contention about how the present suit is not maintainable for non-compliance of Sec.482 of KMC Act. Hence, I am of the opinion that the defendants No.1 to 3 have failed to prove Issue No.5. Accordingly, I answer Issue No.5 in Negative.
51. Issue No.6 and Additional Issue No.6 :- The plaintiff has sought for the relief of declaration to declare the sanctioned plan in L.P.No.330/2006-07 dated 26.09.2006 in respect of the schedule 'B' property as illegal, unlawful, arbitrary and contrary to the building bye-laws of the BBMP and for the relief of mandatory injunction to demolish the entire construction made on 'B' schedule property on the ground that the said constriction is illegal, unlawful without there being sanction plan, license and change in land use. It is already discussed and held above that the plaintiff is not entitled for the relief No.a and b as sought for by him and this court has no jurisdiction to declare plan as illegal and the relief of mandatory 63 O.S.No.6187/2009 injunction as prayed for by the plaintiff with respect to the construction in the 'B' schedule property cannot granted by this court. Further the plaintiff has also sought for the relief of mandatory injunction directing the defendants No.1 to 3 not to encroach upon 'A' schedule property by an act of trespass for the purpose of formation of road to 'B' schedule property belonging to defendants No.4 to 6. The plaintiff has also sought for the relief of permanent injunction restraining the defendant No.6 from utilizing the 'A' schedule property as road to have access to apartments constructed in suit 'B' schedule property by defendants No.4 and 5 and also sought for the relief of mandatory injunction to direct the defendants to remove the gate provided on eastern side of 'A' schedule property. It is already discussed and held above that the plaintiff has failed to prove his exclusive ownership right and possession over the suit 'A' schedule property within the boundaries and measurement shown in the suit plaint. Hence, it is held that interference of the defendants with the plaintiff's alleged possession over the suit 'A' schedule property does not arises. The plaintiff is seeking aforesaid relief of mandatory and permanent injunction with respect to suit 'A' schedule property is concerned by contending that it is belonging to him and the defendants are unnecessarily interfering with his peaceful possession of suit 'A' schedule property and they are using it as a road to suit 'A' and 'B' schedule properties. Since the plaintiff 64 O.S.No.6187/2009 has failed to prove his title and possession and enjoyment over the suit 'A' schedule property within the boundaries and measurement mentioned in the suit plaint and since the plaintiff has failed to prove interference of the defendants as alleged in the suit plaint, I am of the opinion that the plaintiff has not entitled for the relief of mandatory injunction and permanent injunction as prayed for in the prayer No.C, D, E of the suit plaint. Further it is held that since the plaintiff has not sought for the relief of declaration of his ownership right with respect to the area where the gate is installed on the eastern side of the 'A' schedule property and he has not alleged any encroachment by the defendants in the said area, I am of the opinion that the relief of mandatory injunction as prayed for in prayer No.E of the suit plaint cannot be granted. As such, I am of the opinion that the plaintiff is not entitled for any of the reliefs as prayed for in the suit plaint. The defendants have failed to explained the reason why the suit filed by the plaintiff is barred by law of limitation as contended by them in the written statement. From the plaint averments and the cause of action shown in the suit plaint and from the relief as prayed for by the plaintiff, it is clear that the suit filed by the plaintiff is within the limitation for relief of mandatory injunction and permanent injunction. As such, I am of the opinion that the suit filed by the plaintiff is within limitation and the defendants have failed to prove that the suit is barred by law of limitation. Hence, 65 O.S.No.6187/2009 the suit filed by the plaintiff is liable to be dismissed. Since it is held that plaintiff is not entitle for the reliefs as prayed for by him and since it is held that the suit is liable to be dismissed, I answer Issue No.6 in Negative. Since it is held that the suit is not barred by law of limitation, I answer Additional Issue No.6 in Negative.
52. Issue No.7:- For the discussions made above, I proceed to pass the following:
ORDER The suit filed by the plaintiff under Order VII Rule 1 read with Sec.26 of C.P.C. is hereby dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the open court on this the 13 th day of January, 2023 ).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURE List of witnesses examined for the plaintiff :
P.W.1 Mohan Kumar
66
O.S.No.6187/2009
List of the documents marked for the plaintiff :
Ex.P.1 to 5 Photos Ex.P.5(a) CD Ex.P.6 Application filed by the plaintiff under RTI Act to BBMP Ex.P.7 Certified copy of gift deed dated 28.11.1981 Ex.P.8 Endorsement issued by Bommanahalli Municipality on 11.03.2002 Ex.P.9 & 10 Certified copies of receipts.
Ex.P.11 Treasury challan
Ex.P.12 RTC of Sy.No.4/1 from 2011-12 & 2013-14
Ex.P.13 Endorsement issued by BBMP dated 18.06.2009
Ex.P.14 Endorsement dated 21.07.2009 issued by BBMP
Ex.P.15 Certified copy of endorsement issued by PSI of
J.P.Nagar
Ex.P.16 RBI Challen
Ex.P.17 Legal notice dated 31.05.2009
Ex.P.18 Legal notice dated 31.05.2009
Ex.P.19 Legal notice dated 04.06.2009
Ex.P.20 Certified copy of order sheet in O.S.No.37/2009
Ex.P.21 Certified copy of the plaint in O.S.No.37/2009
Ex.P.22 Endorsement given by PI of J.P.Nagar
Ex.P.23 Notarized attested copy of Will deed dated 30.09.1994
Ex.P.24 Sketch of 'A' and 'B' schedule properties.
List of the witnesses examined for the defendants:
D.W.1 K.Srinivasa Raju D.W.2 Santhosh N.Rao D.W.3 V.Vijaya Bhaskar Reddy
List of the documents marked for the defendants:67
Ex.D.1 Deposition of D.W.1 in O.S.No.37/2009 Ex.D.2 Plaint in O.S.No.4031/2001 Ex.D.3 & 4 Photos Ex.D.5 Sketch Ex.D.6 Petition in W.P.No.25760/2009 Ex.D.7 Certified copy of orders dated 11.09.2009 Ex.D.8 Resolution of MSA Welfare Association dated 07.03.21 Ex.D.9 Registration certificate dated 11.1.11 with memorandum of Association Ex.D.10 CC of registered partition deed Ex.D.11 Khatha Extract of Sy. No.4/2 Ex.D.12 Assessment extract of Sy. No.4/2 Ex.D.13 Khatha extract of Sy. No.57/39/422/4/2 Ex.D.14 Assessment extract of Sy. No.57/39/422/4/2 Ex.D.15 Joint Development Agreement dated 9.3.2007 Ex.D.16 GPA dated 9.3.07 Ex.D.17 to 23 Tax paid receipts and Self Assessment extracts Ex.D.24 Demand notice dated 23.9.06 Ex.D.25 Receipt dated 26.9.06 Ex.D.26 Letter of BWSSB dated 04.06.08 Ex.D.27 Approved layout Plan Ex.D.28 Consent letter of State pollution Board dated 22.11.08 Ex.D.29 Acknowledgment dated 04.08.10 Ex.D.30 Khatha Extract of Flat No.211 Ex.D.31 Tax paid receipt for the year 2006-07 68 Ex.D.32 Receipt dated 16.06.08 of BWSSB Ex.D.33 Receipt dated 16.06.08 of BWSSB Ex.D.34 Receipt dated 18.10.20 of BWSSB Ex.D.35 Certified copy of Sale deed dated 12.06.2009 Ex.D.36 Certified copy of Sale deed dated 12.06.2008 Ex.D.37 Certified copy of Sale deed dated 14.10.2008 Ex.D.38 Certified copy of Sale deed dated 15.11.2008 Ex.D.39 Certified copy of Sale deed dated 13.06.2008 Ex.D.40 Certified copy of Sale deed dated 11.05.2009 Ex.D.41 Certified copy of Sale deed dated 04.09.2008 Ex.D.42 Certified copy of Sale deed dated 29.03.2008 Ex.D.43 Certified copy of Sale deed dated 26.04.2008 Ex.D.44 Certified copy of Sale deed dated 21.01.2009 Ex.D.45 Certified copy of Sale deed dated 31.10.2008 Ex.D.46 Certified copy of Sale deed dated 18.10.2008 Ex.D.47 Certified copy of Sale deed dated 27.03.2008 Ex.D.48 Certified copy of Sale deed dated 29.03.2008 Ex.D.49 Certified copy of Sale deed dated 14.10.2008 Ex.D.50 Certified copy of Sale deed dated 10.06.2009 Ex.D.51 Certified copy of Sale deed dated 27.03.2009 Ex.D.52 Certified copy of Sale deed dated 31.10.2008 Ex.D.53 Certified copy of Sale deed dated 03.04.2009 Ex.D.54 Certified copy of Sale deed dated 29.03.2008 Ex.D.55 Certified copy of Sale deed dated 29.03.2008 Ex.D.56 Certified copy of Sale deed dated 07.10.2009 Ex.D.57 Certified copy of Sale deed dated 13.06.2008 Ex.D.58 Certified copy of Sale deed dated 26.03.2008 Ex.D.59 Certified copy of Sale deed dated 29.01.2010 Ex.D.60 Certified copy of Sale deed dated 21.06.2008 Ex.D.61 Certified copy of Sale deed dated 28.08.2008 Ex.D.62 Certified copy of Sale deed dated 03.12.2008 Ex.D.63 Certified copy of Sale deed dated 03.08.2009 Ex.D.64 Certified copy of Sale deed dated 17.05.2010 Ex.D.65 Certified copy of Sale deed dated 03.12.2008 Ex.D.66 Certified copy of Sale deed dated 12.12.2008 Ex.D.67 Certified copy of Sale deed dated 30.10.2009 69 Ex.D.68 Certified copy of Sale deed dated 21.01.2009 Ex.D.69 Certified copy of Sale deed dated 03.05.2010 Ex.D.70 Certified copy of Sale deed dated 18.03.2010 Ex.D.71 Certified copy of Sale deed dated 03.05.2010 Ex.D.72 Certified copy of Sale deed dated 24.04.2009 Ex.D.73 Certified copy of Sale deed dated 04.12.2008 Ex.D.74 Certified copy of Sale deed dated 29.03.2008 Ex.D.75 Certified copy of Sale deed dated 29.03.2008 Ex.D.76 Certified copy of Sale deed dated 19.04.2008 Ex.D.77 Certified copy of Sale deed dated 26.04.2008 Ex.D.78 Certified copy of Sale deed dated 27.03.2008 Ex.D.79 Certified copy of Sale deed dated 26.04.2008 Ex.D.80 Certified copy of Sale deed dated 26.12.2008 Ex.D.81 Certified copy of Sale deed dated 03.04.2009 Ex.D.82 Certified copy of Sale deed dated 12.09.2008 Ex.D.83 Certified copy of Sale deed dated 19.09.2009 Ex.D.84 Certified copy of Sale deed dated 29.04.2009 Ex.D.85 Certified copy of Sale deed dated 29.03.2009 Ex.D.86 Certified copy of Sale deed dated 25.03.2005 Ex.D.87 Certified copy of Sale deed dated 10.12.2008 Ex.D.88 Certified copy of Sale deed dated 31.07.2008 Ex.D.89 Certified copy of Sale deed dated 29.03.2008 Ex.D.90 Certified copy of Sale deed dated 01.08.2009 Ex.D.91 Certified copy of Sale deed dated 03.10.2009 Ex.D.92 Certified copy of Sale deed dated 19.04.2008 Ex.D.93 Certified copy of Sale deed dated 27.03.2008 Ex.D.94 Certified copy of Sale deed dated 02.02.2013 Ex.D.95 Certified copy of Sale deed dated 04.10.2008 Ex.D.96 Certified copy of Sale deed dated 03.10.2008 Ex.D.97 Certified copy of Sale deed dated 31.07.2008 Ex.D.98 Certified copy of Sale deed dated 29.03.2008 Ex.D.99 Certified copy of Sale deed dated 04.09.2008 Ex.D.100 Acknowledgment issued by Karnataka state pollution control board Ex.D.101 Original letter dated 31.03.2021 issued by Sub Registrar, Jayanagara, Bengaluru in favour of MSA welfare Association along with Certified copy of Guide Line Value of Suit schedule B property 70 and the Apartments built and standing thereon for the years 2007-08 and 2008-09 Ex.D.102 Original Letter dated 31.03.2001 issued by the Sub Registrar, Jayangara, Bengaluru in favour of MSA Welfare Associal along with Certified copy of of Guide line Value of Suit Schedule B property and the Apartments built and standing thereon for the years 2018-19.
Ex.D.103 Board Resolution dated 14.09.2021 Ex.D: 104 Certified copy of Partition Deed dated 27.11.1999 Ex.D:105 Certified copy of Sale deed dated 14.10.2008 Ex.D:106 Certified copy of Sale deed dated 13.06.2008 Ex.D:107 Certified copy of Sale deed dated 27.03.2008 Ex.D: 108 Certified copy of Sale deed dated 14.10.2008 Ex.D: 109 Certified copy of Sale deed dated 31.10.2008 Ex.D: 110 Certified copy of Sale deed dated 11.05.2009 Ex.D: 111 Certified copy of Sale deed dated 28.08.2008 Ex.D: 112 Certified copy of Sale deed dated 04.09.2008 Ex.D: 113 Certified copy of Sale deed dated 26.04.2008 Ex.D: 114 Certified copy of Sale deed dated 12.09.2008 Ex.D: 115 Certified copy of Sale deed dated 31.10.2008 Ex.D: 116 Certified copy of Sale deed dated 19.04.2008 Ex.D: 117 Certified copy of Sale deed dated 21.06.2008 Ex.D: 118 Certified copy of Sale deed dated 21.01.2009 Ex.D: 119 Certified copy of Sale deed dated 12.06.2008 Ex.D: 120 Certified copy of Sale deed dated 04.09.2008 Ex.D: 121 Certified copy of Sale deed dated 27.03.2008 Ex.D: 122 Certified copy of Sale deed dated 13.06.2008 Ex.D: 123 Certified copy of Sale deed dated 31.10.2009 Ex.D:124 Certified copy of Sale deed dated 03.12.2008 Ex.D: 125 Certified copy of Sale deed dated 16.10.2008 Ex.D: 126 Certified copy of Sale deed dated 21.06.2008 Ex.D:127 Certified copy of Sale deed dated 12.06.2009 Ex.D:128 Certified copy of Sale deed dated 29.03.2008 Ex.D: 129 Certified copy of Sale deed dated 29.03.2008 Ex.D: 130 Certified copy of Sale deed dated 31.07.2008 Ex.D: 131 Certified copy of Sale deed dated 27.03.2008 71 Ex.D: 132 Certified copy of Sale deed dated 12.12.2008 Ex.D: 133 Certified copy of Sale deed dated 15.11.2008 Ex.D: 134 Certified copy of Sale deed dated 03.10.2008 Ex.D: 135 Certified copy of Sale deed dated 03.12.2008 Ex.D: 136 Certified copy of Sale deed dated 26.03.2008 Ex.D: 137 Certified copy of Sale deed dated 29.03.2008 Ex.D: 138 Certified copy of Sale deed dated 04.09.2008 Ex.D: 139 Certified copy of Sale deed dated 10.12.2008 Ex.D: 140 Certified copy of Sale deed dated 18.10.2008 Ex.D: 141 Certified copy of Sale deed dated 29.03.2008 Ex.D:142 Certified copy of Sale deed dated 12.09.2008 Ex.D: 143 Certified copy of Sale deed dated 26.04.2008 Ex.D: 144 Certified copy of Sale deed dated 31.03.2008 Ex.D: 145 Certified copy of Sale deed dated 25.03.2009 Ex.D: 146 Original acknowledgment for hanging over the original documents to the Mahaveer Springs Annexure Welfare Association Ex.D.147 Notice issued by Special D.C. dated 06.07.2006.
LII Addl. City Civil & Sessions Judge, Bengaluru.
72 73 74 75 76 77 Judgment pronounced in the open court (vide separate order):
ORDER The suit filed by the plaintiff under Order VII Rule 1 read with Sec.26 of C.P.C. is hereby dismissed.
No order as to costs.
Draw decree accordingly.
LII Addl. City Civil & Sessions Judge, Bangalore.
78