Bangalore District Court
Sri.R.P. Niranjan Kumar vs ) The Commissioner on 5 February, 2021
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY - (CCCH.11)
Dated this the 5th day of February 2021
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.No.8916/2014
PLAINTIFF SRI.R.P. NIRANJAN KUMAR
S/o.Sri.R.Parthasarathi,
Aged about 39 years,
R/at No.84, 3rd Main, 9th 'B' Cross,
Prashanthnagar,
Bengaluru -560 079.
[By Pleader Sri.Nagaiah]
/Vs/
DEFENDANTS 1) THE COMMISSIONER
Bruhat Bengaluru Mahanagara Palike,
Bengaluru.
[By Pleader Sri.Prakasha]
2) THE ADDITIONAL DIRECTOR
GENERAL OF POLICE,
Bengaluru Metropolitan Task Force,
H.O. BBMP, Bengaluru.
[Exparte]
OS.NO:8916/2014
2
Date of Institution of the suit : 19.11.2014
Nature of the Suit : Injunction
Date of commencement of recording
of evidence : 24.08.2017
Date on which the Judgment was
pronounced : 05.02.2021
Year/s Month/s Day/s
Total Duration : 06 02 16
---
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This suit is filed by Plaintiff for permanent injunction restraining Defendants from interfering with suit schedule property and from demolishing the building constructed thereon.
OS.NO:8916/2014 3
2) Plaintiff's case is that he is the absolute owner in possession and enjoyment of suit schedule property viz., property bearing No.1468/1547, House List No.667, Municipal No.39, 4th Main Road, Ranganathapura, Ward No.36, Bengaluru -560 079, measuring East to West : 45 feet and North to South : 45 feet, having constructed building thereon, which came to be purchased by him from Sri.R. Soundara Rajan, vide registered Sale Deed dated 27.01.2006. It is stated that khatha of suit schedule property has been transferred in his name in BBMP and up to date tax has been paid to BBMP in respect of suit schedule property.
3) It is stated that, after dismantling the shed existed in suit schedule property, sanctioned plan was obtained from BBMP and building has been OS.NO:8916/2014 4 constructed in suit schedule property as per sanctioned plan.
4) It is stated that Plaintiff is manufacturing plastic items in suit schedule property by investing huge amount, which was taken by way of loan from 'Sree Subramanyeshwara Co-Op. Bank Ltd,' by mortgaging the suit schedule property.
5) It is stated that suit schedule property is part and parcel of Sy.No.65/4A of Saneguruvanahalli Village, in which, Defendant No.1 has no manner of right, title and interest. It is stated that on 10.11.2014 Defendants made attempt to demolish the building constructed in suit schedule property without having recourse to law, contending that it comes within Sy.No.46 of Malagala Village. Defendants have no authority under law to demolish the building constructed in suit schedule OS.NO:8916/2014 5 property without surveying the same in the presence of Plaintiff. Hence, prays for decree.
6) Summonses issued to Defendants were duly served. Defendant No.1 marked appearance through his Counsel. Defendant No.2 remained absent and he was placed ex-parte.
7) Defendant No.1, in his written statement, states that suit is not maintainable as no statutory notice has been issued stating the cause of action, the relief sought for and the name and place of Plaintiff. Defendant No.1 represents Government, which is not made as party. Hence, suit is bad for non-joinder of necessary party.
8) It is stated that suit schedule property is part and parcel of Sy.No.46. As per survey report, suit schedule property comes within the limit of Sy.No.46 of Malagala Village, which is known as OS.NO:8916/2014 6 'Balaiahana Kere'. Previous vendor of the suit schedule property had no right or title over suit schedule property. Sale Deed executed by previous owner is not lawful and on that basis Plaintiff cannot claim right or title over suit schedule property. By misleading Defendant No.1, Plaintiff got the khatha in his name and same does not confer ownership or title on him. Identity of the property is in dispute. Defendant No.1, being a statutory authority, is having right to demolish an unauthorized construction. Hence, prays for dismissal of the suit.
9) Issues that have been framed by this Court are as follows :
(1) Whether Plaintiff proves that he is in possession and enjoyment of the suit schedule property as on the date of the suit?
(2) Whether Plaintiff proves the
alleged interference by the
Defendants?
(3) Whether Defendant No.1 proves that Plaintiff has not issued any prior notice before initiating this suit?
OS.NO:8916/2014 7 (4) Whether Defendant No.1 proves that the suit is bad for non-
joinder of necessary parties?
(5) Whether the Plaintiff is entitled for the relief as prayed?
(6) What Order or Decree?
10) Plaintiff has got examined as PW.1 and got marked Exs.P.1 to P.35 in support of his case. Defendant No.1 has examined Assistant Executive Engineer as DW.1 and got marked Exs.D1 to D.21 to prove his case.
11) Heard learned Counsel for Plaintiff and Defendant No.1. Perused the records.
12) My findings on the above issues are as follows :
Issue No.1 - In Affirmative;
Issue No.2 - In Affirmative;
Issue No.3 - In Negative;
Issue No.4 - In Negative;
OS.NO:8916/2014 8 Issue No.5 - In Affirmative;
Issue No.6 - As per final order, for the following :
REASONS
13) Issues No.3 and 4 : By this suit, Plaintiff has sought for permanent injunction against Defendants restraining them from interfering with suit schedule property and from demolishing the building constructed thereon.
14) 1st Defendant's contention is that statutory notice as required under Section 482 of the Karnataka Municipal Corporation Act, 1976 has not been issued to Defendant No.1 before institution of suit and suit has been instituted without making the Government as party. Hence, suit is liable to be dismissed.
15) Section 482 of the Karnataka Municipal Corporation Act, 1976 provides that no suit shall be OS.NO:8916/2014 9 instituted against municipal authority, officers and agents without there being issued two months' prior notice. It is worthwhile to read Section 482 of the Karnataka Municipal Corporation Act, 1976, which reads thus :
"482. Institution of suits against municipal authority, officers and agents. - (1) No suit shall be instituted against the Corporation or any municipal authority, Corporation Officer or servant, or any person acting under the direction of the same, in respect of any act done in pursuance or in execution, or intended execution of this Act or any rule, bye-law, regulation or order made under it or in respect of any alleged neglect or default in the execution of this Act or any rule, bye- law, regulation or order made under it until the expiration of [Sixty days] after a notice has been delivered or left at the Corporation office or at the place of abode of such officer, servant or person, stating the cause of action, the relief sought, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left.
(1-A) A suit to obtain an urgent or immediate relief against the Corporation or any municipal authority, Corporation Officer or servant in respect of any act done or purporting to be done by such officer or servant in his official capacity, may be instituted with the leave of the Court, without serving any notice as required by sub-section (1), but the Court shall not grant relief in the suit, whether interim or otherwise except after giving to the Corporation Officer or servant, as the case may be, a reasonable opportunity of OS.NO:8916/2014 10 showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied after hearing the parties that no urgent or immediate relief need be granted in the suit, return the plaint, for presentation to it after complying with the requirements of sub-section (1). (2) xx xx xx (3) xx xx xx (4) xx xx xx (5) xx xx xx "
16) A bare reading of Section 482(1) makes it clear that, before institution of the suit, it is mandatory to issue two months' prior notice to municipal authority in respect of the act done under the Karnataka Municipal Corporation Act, 1976, stating the cause of action, the relief sought and the name and place of abode of Plaintiff. Sub- section (1A) of Section 482 further makes it clear that such suit may be instituted with the leave of the Court without serving notice as required by sub- section (1) where a suit in which an urgent or immediate relief is sought for.
OS.NO:8916/2014 11
17) Above aspect of the matter has been dealt in Devi Singh vs. Municipal Corporation, Hyderabad, [(1973) 4 SCC 66]. The Hon'ble Supreme Court, while dealing with Section 477 of the Hyderabad Municipal Corporation Act, 1950, which is akin to Section 482 of the Karnataka Municipal Corporation Act, 1976, was pleased to hold that "The question whether a notice under Section 477 was necessary has to be decided on the averments made". Para-12 of the judgment reads as follows :
"12. We may dispose of the legal points. As regards the requirement of a notice under Section 447 of the Corporation Act, that section provides that no suit shall be instituted against the Corporation, Commissioner, municipal officer or servant in respect of any act done or purported to be done in pursuance of execution or intended execution of the Act, or in respect of any alleged neglect or default in the execution of the Act, until the expiration of one month next after a notice had been served on the Corporation or officer concerned in the manner indicated in the section. This is what the High Court said on the point :
" It cannot be gainsaid that the acts complained of by the plaintiff were acts done by the Corporation in pursuance of its powers and duties under the Act. Under Section 59 of the OS.NO:8916/2014 12 Act the corporation is empowered to make provision for public parks, gardens, playgrounds and recreation grounds, while under Section 56 of the Act the Corporation is empowered to remove obstructions upon public places."
The question whether a notice under the aforesaid section was necessary has to be decided on the averments made. It was never the case of the plaintiff that the defendant Corporation was acting or purported to act under the provisions of the Act. The dispute raised related to the ownership of the property as also its possession. We have not been shown any provision in the Corporation Act, by which the Corporation or its officers were entitled to either take possession of another person's property or retain its possession or dispossess a person who is already in possession without having recourse to the ordinary remedies under the law. We are wholly unable to understand how Section 56 of the Corporation Act could be of any avail to the Corporation in the matter of notice under Section 447 of the Act. The whole controversy between the parties centered on the question whether the Bazaar was the property of the plaintiff and was in his possession at the time of the institution of the suit. That had nothing to do with any act done or purported to be done in pursuance of execution or intended execution of any provision of the Corporation Act. The learned counsel for the Corporation has not been able to show how the suit as laid and framed attracted the applicability of Section 447 of the Corporation Act. We would, accordingly, hold that under the aforesaid section no notice was necessary before the institution of the suit."
OS.NO:8916/2014 13
18) Instant suit has been filed for permanent injunction against Defendants based on Plaintiff's title and possession over suit schedule property, contending that Defendants made an attempt to demolish the building constructed over suit schedule property without having recourse to law. It is not at all the case of Plaintiff that Defendant No.1 was acting or purported to act under the provisions of the Karnataka Municipal Corporation Act, 1976.
19) Moreover, Bruhat Bangalore Mahanagara Palike [BBMP] is a Body Corporate. Commissioner appointed by the Government is a whole time officer of the Corporation. He is paid out of the Corporation fund. He shall be vested with executive power subject to limitations as envisaged under the Karnataka Municipal Corporation Act, 1976. He has been rightly made as party in this suit. Plaintiff is claiming to be the owner in possession of suit schedule property. In order to protect his interest in OS.NO:8916/2014 14 suit schedule property against the alleged interference of Defendant No.1, Government is not at all proper or necessary party to this suit and issue of notice under Section 482 is not at all required; accordingly, I answer the above Issues in the negative.
20) Issues No.1, 2 and 5 : Plaintiff contends that he purchased the suit schedule property vide registered Sale Deed dated 27.01.2006. Khatha of suit schedule property got transferred in his name in BBMP. He has paid up to date tax. He got sanctioned plan from BBMP and constructed the building in suit schedule property. Defendants, having no manner of right, title and interest, made an attempt to demolish the building constructed in suit schedule property.
21) On the contrary, Defendant No.1 contends that suit schedule property comes within Sy.No.46 of Malagala Village, which is known as 'Balaiahana OS.NO:8916/2014 15 Kere'. Defendant is having authority to demolish an unauthorized construction.
22) Plaintiff has deposed as PW.1 reiterating the plaint averments. Documents marked on behalf of Plaintiff are at Exs.P.1 to P.35. Ex.P.1 is Sale Deed dated 27.01.2006 executed by Sri.R. Soundara Rajan in favour of Plaintiff relating to suit schedule property. Ex.P.1 is duly registered before the Sub- Registrar, Bangalore North Taluk, Bangalore as per Document No.20352/05-06. Ex.P.2 is Khatha Certificate dated 09.03.2005 in respect of suit schedule property issued by BBMP which stands in the name of erstwhile owner Sri. Soundara Rajan.R. Ex.P.3 is Khatha Certificate dated 17.09.2018 in respect of suit schedule property. Ex.P.4 is Khatha Extract dated 17.09.2018 relating to suit schedule property. Exs.P.5 is House Tax Assessment Register for the period from 01.10.1995 to 09.01.2006 issued by BBMP wherein owner's name is shown as Sri.Soundara Rajan.R. Ex.P.6 is Certificate dated OS.NO:8916/2014 16 24.03.2005 issued by BBMP for having registered the khatha of suit schedule property in the name of Plaintiff on the basis of Sale Deed. Ex.P.7 is Certificate dated 23.08.1999 issued by BBMP for having entered the name of Sri.Soundara Rajan.R in revenue records of suit schedule property. Ex.P.8 is Certificate dated 09.01.2006, which states that suit schedule property stands in the name of Sri.R. Soundara Rajan. Ex.P.9 is letter dated 18.08.1999 issued by BBMP to Sri.Soundara Rajan.R to submit his objection with respect to tax assessed by BBMP. Ex.P.10 is Endorsement dated 25.06.1999 issued by BBMP intimating Sri. R.Soundara Rajan to furnish the requisite documents to transfer the khatha of suit schedule property in his name. Exs.P.11 to P.15 are tax paid receipts for having paid tax to BBMP by Sri.R.Soundara Rajan. Exs.P.16 to P.22 are tax paid receipts for the period from 2009-2010 to 2015- 2016 and for the period 2018-19 in the name of Plaintiff. Ex.P.23 is Endorsement dated 25.06.1997 OS.NO:8916/2014 17 issued by Sub-Registrar, Bangalore North Taluk intimating Sri.R.Soundara Rajan about the stamp duty to be payable for registration.
23) Exs.P.24 to P.26 are Encumbrance Certificates for the period from 01.01.2006 to 07.08.2007, 01.04.2005 to 13.03.2015 and 01.04.2013 to 13.03.2015. They record the Plaintiff's sale transaction relating to suit schedule property.
24) Exs.P.27 to P.30 are electricity bills issued in the name of Plaintiff. Ex.P.31 is copy of Sale Deed dated 25.06.1997, which discloses that Sri.R.Soundara Rajan purchased suit schedule property from Sri.Badraiah through his GPA Holders. Ex.P.32 is certified copy of plaint in O.S.No.1592/1988 filed by one Sri.Hanumaiah and another against the Housing Commissioner, Karnataka Housing Board. Ex.P.33 is certified copy OS.NO:8916/2014 18 of written statement filed in O.S.No.1592/1988 by the Housing Commissioner. Ex.P.34 is certified copy of judgment dated 31.03.1997 in O.S.No.1592/1988. Exs.P.35 is certified copy of Decree in O.S.No.1592/1988.
25) On the contrary, Assistant Executive Engineer of Defendant No.1 has deposed as DW.1 reiterating the written statement averments. Documents marked on behalf of Defendant No.1 are at Exs.D.1 to D.21. Ex.D.1 is list of documents filed by Police in Crime No.128/2013. Ex.D.2 is charge-sheet filed in Crime No.128/2013 against Plaintiff, who is shown as accused No.11, for the offence punishable under Sections 192(A) and 192(B) of Karnataka Land Revenue Act. Ex.D.3 is First Information Report registered on the complaint dated 18.12.2013 filed by one Sri.R.Prakash. Ex.D.4 is spot panchanama dated 24.11.2014 drawn by the Police in Crime No.128/2013. Ex.D.5 is Police OS.NO:8916/2014 19 Notice dated 28.01.2014 issued by Dy. Superintendent of Police, Bangalore Metropolitan Task Force, Bengaluru to the Revenue Inspector for furnishing supporting documents. Ex.D.6 is report submitted by Village Accountant, Mallathalli Circle, Yeswanthapura Hobli, Bengaluru North Taluk. Ex.D.7 is statement given by Village Accountant, Mallathalli Circle, Yeswanthapura Hobli, Bengaluru North Taluk. Ex.D.8 is Record of Rights in respect of Sy.No.46 of Malagala Village. Ex.D.9 is sketch of Sy.No.46. Exs.D.10 to D.16 are survey tippani relating to Sy.No.46 of Malagala Village. Ex.D.17 is reminder letter dated 28.10.2014 issued by Dy. Suprerintendent of Police, Bangalore Metropolitan Task Force, Bengaluru to Tahasildar. Ex.D.18 is letter dated 31.10.2014 issued by Tahsildar to Dy. Superintendent of Police, BMTF, Bengaluru. Ex.D.19 is survey sketch of Sy.No.46. Ex.D.20 is topographical survey of Sy.No.46. Ex.D.21 is letter dated 10/28.11.2014 addressed by BBMP to Deputy OS.NO:8916/2014 20 Superintendent of Police, BMTF, Task Force, Bengaluru, stating the names and address of encroachers in Sy. No.46.
26) From Exs.P.31, P.2, P.5 and P.7 to P.15, it is clear that Plaintiff's vendor, Sri.R.Soundara Rajan purchased the suit schedule property from its erstwhile owner Sri.Badraiah on 25.06.1997 vide registered Sale Deed. After purchasing the suit schedule property, his name was entered in BBMP records relating to suit schedule property and was paying property tax to BBMP. From Exs.P.1, P.3 and P.16 to P.22, it is further clear that Plaintiff has purchased the suit schedule property from Sri.R.Soundara Rajan on 27.01.2006 vide registered Sale Deed and after purchasing the same, his name has been entered in BBMP records relating to suit schedule property and he has been paying property tax to BBMP.
OS.NO:8916/2014 21
27) Purchasing of suit schedule property by Plaintiff; entering the name of Plaintiff in BBMP relating to suit schedule property; payment of tax to BBMP by Plaintiff and construction of building by Plaintiff in suit schedule property, are not in dispute. These facts are part of the pleadings of respective parties.
28) Further, the above facts have also been admitted by DW.1 in his oral evidence. DW.1, in his cross-examination, deposes that Plaintiff is in possession of suit schedule property and there is a building in suit schedule property. It is further deposed that records shows that Plaintiff has constructed the building after obtaining sanctioned plan from Defendant No.1. It is also deposed that Defendant No.1 has issued khatha in respect of suit schedule property and collected property tax from Plaintiff every year. Relevant part of cross- examination of DW.1 is extracted as under :
OS.NO:8916/2014 22 "ನನನನ ಈ ಕಕಕಸನ ಬಗಕಗ ಸಸಪಪರರವನಗ ತಳದನಕಕಕಸಡಕ ಸನಕಕಯನನನ ನಕಡನತತದಕದಕನಕ. ದನವನ ಆಸತಯ ಸನಸಧಕನತಕಯಲಲ ವನದ ಇದನದರಕ. ದನವನ ಆಸತಯಲಲ ವನದಯ ಕಟಟಡ ಇದಕ. ವನದ ಸದರ ಕಟಟಡ ಕಟಟಲನ 1 ನಕಕ ಪಪತವನದಯಸದ ಪರವನನಗಕಯನನನ ಪಡಕದನಕಕಕಸಡನ ಮಸಜಕರನತ ನಕಕಕಯನನನ ಪಡಕದನಕಕಕಸಡರನವ ಬಗಕಗ ದನಖಲಕಯ ಪಪಕನರ ಕಸಡನ ಬರನತತದಕ. 1 ನಕಕ ಪಪತವನದ ದನವನ ಆಸತಗಕ ಖನತಕಯನನನ ನಕಡರನತನತರಕ. 1 ನಕಕ ಪಪತವನದ ವನದಯ ಕಡಕಯಸದ ಪಪತ ವರರ ದನವನ ಆಸತಗಕ ಸಸಬಸಧಸ ತಕರಗಕಯನನನ ಪಡಕದನಕಕಕಳನಳತತದನದರಕ. ಸದರ ವಕನಕಲಕ ಹಕಕಳದ ಖನತಕಯನನನ ನಕಡನವನಗ 1 ನಕಕ ಪಪತವನದ ಸದಳಕಕಕ ಬಸದನ ಪರಶಕಲನಕ ಮನಡ ಸಸಬಸಧಪಟಟ ವವಕತ ಆಸತಯ ಸನಸಧಕನತಕಯಲಲ ಇದದ ಬಗಕಗ ಹನಗಕ ಮನಲಕಕತಸದ ಬಗಕಗ ತಳದನಕಕಕಸಡನ ಖನತಕಯನನನ ನಕಡನತನತರಕ. ವನದ ದನವನ ಸಸತತನ ಸನಸಧಕನತಕಯಲಲರನವನಗ 1 ಮತನತ 2 ನಕಕ ಪಪತವನದಯರನ ದನನಸಕಕ 10-11-2014 ರಸದನ ದನವನ ಆಸತಯನನನ ಒಡಕದನ ಹನಕಲನ ಹಕಕಕಗದಕದಕವವ ಎಸದರಕ ಸರ. "
29) Plaintiff, in para-8 of the plaint, has specifically pleaded that on 10.11.2014 Defendant No.2 and his officials made an attempt to demolish the building, contending that suit schedule property comes within Sy.No.46 of Malagala Village and same was resisted by Plaintiff. This fact has also not been disputed by Defendant No.1. DW.1 has emphatically admitted that on 10.11.2014 Defendants No.1 and 2 had gone to suit schedule property to demolish the building. However, Defendant No.1 is trying to justify his act, OS.NO:8916/2014 23 contending that suit schedule property comes within Sy.No.46 of Malagala Village, which is 'Balaiahana Kere' and the previous owner having no manner of right, title and interest over suit schedule property, executed Sale Deed in favour of Plaintiff by playing fraud upon Plaintiff. Sale Deed is not a lawful document and possession of Plaintiff is unlawful.
30) 1st Defendant has placed reliance on Exs.D1 to D.21. It is to be noted that Exs.D2 to D.21 are documentary evidence collected by Police during the course of investigation in BMTF Crime No. 128/2013 registered against 12 persons including Plaintiff for the offence punishable under Sections 192(A) and 192(B) of the Karnataka Land Revenue Act, 1964. DW.1, in his cross examination, has admitted that case registered in BMTF Crime No. 128/2013 has been quashed by the Hon'ble High Court of Karnataka in Cri.Petition No.6579/2106. Be that as it may. RTC at Ex.D.8 makes it clear that OS.NO:8916/2014 24 Sy.No.46 of Malagala Village is Government Kere.
Defendant No.1 mainly relies upon Exs.D.19 and D.21, which are Survey Sketch and Letter dated 28.11.2014 addressed by BBMP to Deputy Superintendent of Police. Survey Sketch at Ex.D.19 indicates 13 encroachment in Sy.No.46 of Malagala Village. No where it is specifically mentioned in Ex.D.19 that Plaintiff has encroached Sy.No.46 of Malagala Village. Only Ex.D.21 mentions the name of Plaintiff as encroacher. There is no reason to rely upon Ex.D.21 by Defendant No.1 in absence of Plaintiff's name in Ex.D.19.
31) Further, DW.1, in his cross examination, has specifically admitted that there is no mention in Ex.D.19 to say that Plaintiff has encroached Sy.No.46. Relevant part of cross-examination of DW.1 is extracted as under :
"ನ.ಡ.19 ಸವಕಕರ ದನಖಲಕಯನನನ ಯನರ ಕಕಕಕರಕಕ ಮಕರಕಗಕ ತಯನರಸದನದರಕ ಎಸದನ ನನಗಕ ಹಕಕಳಲನ ಬರನವವದಲಲ. ನ.ಡ.19 ದನಖಲಕಯನನನ ನಮಮ ಕಚಕಕರಯಸದ ಪಡಕದನಕಕಕಸಡನ ಈ ಕಕಕಸನಲಲ ಹನಜರನ ಪಡಸದಕದಕನಕ. ಸದರ ನ.ಡ.19 ದನಖಲಕ 1 ನಕಕ ಪಪತವನದ OS.NO:8916/2014 25 ಸನಪದರಗಕ ಹಕಕಗಕ ಬಸತನ ಎಸದನ ನನಗಕ ಹಕಕಳಲನ ಬರನವವದಲಲ. ನ.ಡ.19 ರಲಲ ವನದಯರನ ಸವಕಕರ ನಸಬರರ 46 ನನನ ಒತನತವರ ಮನಡದನದರಕ ಎಸದನ ನಮಕದನ ಇರನವವದಲಲ. ನ.ಡ.19 ರಲಲ ಒತನತವರ ಮನಡದನದರಕ ಎಸದನ ಹಕಕಳನವ ವವಕತಗಳ ವರನದದ ಯನವವದಕಕ ಕಪಮವನನನ ಕಕಕಗಕಕಸಡರನವವದಲಲ . ತನಲಕಲಕನ ಭಕಮನಪಕರನ ನ.ಡ.19 ದನಖಲಕಯನನನ ತಯನರಸದನದ ಅದರಲಲ ಅವರನ ಒತತವರದನರರನನನ ನಮಕದಸರನವವದಲಲ. ನ.ಡ.21 ರಲಲ ವನದಯ ಹಕಸರನನನ ಸದಳಕಯ ಕನರಕರರಕಕಟರರ ರವರ ಚತನವಣಕ ಮಕರಕಗಕ ಸಕಕರಸದನದರಕ ಎಸದರಕ ಸರಯಲಲ....."
32) Also, DW.1 has emphatically admitted that no notice was given to alleged encroacher and adjacent land owners while conducting survey of Sy.No.46. Relevant portion of cross examination of DW.1 reads as under :
"....ನ.ಡ.8 ರಲಲ ವನದ ಒತನತವರ ಮನಡಕಕಕಸಡರನವ ಬಗಕಗ ನಮಕದನ ಇಲಲ. ಸವಕಕರ ನಸಬರರ 46 ರಲಲ ಸವಕಕರ ಮನಡನವ ಕನಲಕಕಕ ಒತನತವರ ಮನಡದನದರಕ ಎನನನವವರಗಕ ನನವವ ನಕಕಕಟಸರ ನಕಡ ಸವಕಕರ ಮನಡರನವವದಲಲ. ಅದಕಕ ರಕತ ಸವಕಕರ ಮನಡನವ ಕನಲಕಕಕ ಅಕಕ ಪಕಕದ ಜಮಕನನ ಮನಲಕಕರಗಕ ನಕಕಕಟಸನನನ ನಕಡರನವವದಲಲ. ..."
"...ದನವನ ಆಸತ ಸವಕಕರ ನಸಬರರ 46 ರಲಲ ಬರನತತದಕಯನಕ ಅಥವನ ಸವಕಕರ ನಸಬರರ 65/4 ಎ ನಲಲ ಬರನತತದಕಯನಕ ಎಸದನ ನನಗಕ ಗಕಕತತಲಲ ಎಸದನ ಮನಖವ ವಚನರಣಕಯಲಲ ಹಕಕಳದಕದಕನಕ ಎಸದರಕ ಸರ. ..... ."
33) Thus, it has been clear that Ex.D.19 has been prepared without there being given any notice to Plaintiff as well as adjacent land owners. Plaintiff's OS.NO:8916/2014 26 specific case is that suit schedule property is part and parcel of Sy.No.65/4A of Saneguravanahalli Village. Ex.D.19 does not specify the encroachment made by Plaintiff in Sy.No.46 and moreover, Ex.D.19 has not been prepared in the presence of Plaintiff and alleged encroacher. No documents are available to show that there has been encroachment by Plaintiff in Sy.No.46 except Ex.D.21, in which Plaintiff's name is shown as encroacher. No explanation has been forthcoming from Defendant No.1 that on what basis Plaintiff's name has been mentioned in Ex.D.21. Had Defendant No.1 conducted the survey of Sy.No.46 of Malagala village in the presence of Plaintiff and adjacent land owners and had the alleged encroachment of Plaintiff been mentioned in the survey sketch, then, it would be proper to say that Plaintiff is the encroacher of Sy.No.46 of Malagala village and in that circumstance, Defendant No.1 would be entitled to take action by following due OS.NO:8916/2014 27 process of law. In Devi Singh case (supra), it has been specifically held that "the Corporation or its officers were not entitled to either take possession of another person's property or retain its possession or dispossess a person who is already in possession without having recourse to the ordinary remedies under the law."
34) Defendant No.1 has placed reliance on the following judgments :
(a) K.V.Narayan vs. Sharana Gowdam [ILR 1986 KAR 1130], wherein it is held that "a trespasser in possession, is not entitled to a temporary injunction as against a true owner".
(b) Corporation of the City of Bangalore vs. M.Papaiah and another, [AIR 1989 SC 1809], wherein the Hon'ble Supreme Court was pleased to hold that "revenue records are not documents of title".
OS.NO:8916/2014 28
35) In the instant case, it is proved that Plaintiff's right, title, interest and possession over suit schedule property is based on registered Sale Deed. Moreover, his title over suit schedule property is nevertheless based on revenue records. In that circumstance, the ratio laid down in the judgments (supra) is not availed of by Defendant No.1.
36) Further reliance is placed on Section 67 of the Karnataka Land Revenue Act, 1964, which states that public roads, etc., and all lands which are not the property of others belong to the Government. In the instant case, Defendant No.1 claims Plaintiff's property as portion of Sy.No.46 of Malagala Village without proving the same. In that view, on a fair reading of Section 67, Defendant No.1 has no right to claim others' property as Government land. Viewed from any angle, Defendant No.1 has failed in his attempt to prove his contention.
OS.NO:8916/2014 29
37) Thus, from documentary evidence and oral admissions of DW.1, it has been established that Plaintiff has been in possession and enjoyment of the suit schedule property since the date of purchase and on 10.11.2014 Defendants made an attempt to demolish the building constructed over suit schedule property. That being the case, it has be to said that Plaintiff is entitled to the relief as prayed for; accordingly, I answer the above Issues in the affirmative.
38) Issue No.6 : In view of foregoing discussion and findings on Issues No.1 to 5, I proceed to pass the following :
ORDER (1) Suit filed by Plaintiff is hereby decreed.
(2) Defendants are hereby
restrained by way of
permanent injunction from
OS.NO:8916/2014
30
demolishing the building
constructed over suit schedule
property and from interfering
with Plaintiff's possession and enjoyment of suit schedule property.
(3) Draw Decree accordingly.
(4) Having regard to the peculiar facts and circumstance of the case, no order as to costs.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, on this the 5th day of February 2021) (RAMA NAIK) VI Addl.City Civil & Sessions Judge Bengaluru City OS.NO:8916/2014 31 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Sri.R.P.Niranjan Kumar, dtd.24.08.2017
(b) Defendants side :
D.W.1 - Sri.D.Balaram, dtd.03.08.2019 II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of Sale Deed dtd.27.01.2006 Ex.P.2 Khatha Certificate dtd.09.03.2005 in respect of suit property in the name of Sri.Soundar Rajan.R Ex.P.3 Khatha Certificate dtd.17.09.2018 in respect of suit property in the name of Plaintiff Ex.P.4 Khatha Extract dtd.17.09.2018 in respect of suit property in the name of Plaintiff Ex.P.5 House Tax Assessment Register for the period from 01.10.1995 to 09.01.2006 issued by BBMP showing the name of Sri.R.Soundara Rajan, as owner in respect of suit property Ex.P.6 Certificate dated 24.03.2005 issued by BBMP for having registered the khatha of suit property in the name of Plaintiff Ex.P.7 Certificate dated 23.08.1999 issued by BBMP for having entered the name of Sri.R.Soundara Rajan in revenue records of suit property Ex.P.8 Certificate dated 09.01.2006, stating that suit property stands in the name of Sri.R. Soundara Rajan.
OS.NO:8916/2014 32 Ex.P.9 Letter dated 18.08.1999 issued by BBMP to Sri.R. Soundara Rajan to submit his objection with respect to tax assessed by BBMP.
Ex.P.10 Endorsement dated 25.06.1999 issued by BBMP intimating Sri.R. Soundara Rajan to furnish the requisite documents to transfer the khatha of suit property in his name.
Ex.P.11 Tax paid receipts for having paid tax to To BBMP by Sri.R.Soundara Rajan. Ex.P.15 Ex.P.16 Tax paid receipts for the period from To 2009-2010 & 2010-11; 2011-12 to Ex.P.22 2015-2016 and for the period 2018-19 in the name of Plaintiff.
Ex.P.23 Endorsement dated 25.06.1997 issued by Sub-Registrar, Bangalore North Taluk intimating Sri.R.Soundara Rajan about the stamp duty to be payable for registration.
Ex.P.24 Encumbrance Certificates for the To period from 01.01.2006 to Ex.P.26 07.08.2007, 01.04.2005 to 13.03.2015 and 01.04.2013 to 13.03.2015, showing Plaintiff's transaction relating to suit schedule property.
Ex.P.27 Electricity bills issued in the name of To Plaintiff.
Ex.P.30 Ex.P.31 Copy of Sale Deed dated 25.06.1997, wherein Sri.R.Soundara Rajan purchased suit property from Sri.Badraiah through his GPA Holders.
Ex.P.32 Certified copy of plaint in
O.S.No.1592/1988 filed by one
Sri.Hanumaiah and another against the Housing Commissioner, Karnataka Housing Board.
OS.NO:8916/2014 33 Ex.P.33 Certified copy of written statement filed in O.S.No.1592/1988 by the Housing Commissioner.
Ex.P.34 Certified copy of judgment dated 31.03.1997 in O.S.No.1592/1988.
Ex.P.35 Certified copy of Decree in O.S.No.1592/1988.
(b) Defendants side :
Ex.D.1 List of documents filed by Police in Crime
No.128/2013.
Ex.D.2 Charge-sheet filed in Crime No.128/2013
Ex.D.3 First Information Report.
Ex.D.4 Spot panchanama dated 24.11.2014 drawn
by the Police in Crime No.128/2013. Ex.D.5 Police Notice dated 28.01.2014 issued by Dy.Superintendent of Police, Bangalore Metropolitan Task Force, Bengaluru to the Revenue Inspector for furnishing supporting documents.
Ex.D.6 Report submitted by Village Accountant, Mallathalli Circle, Yeswanthapura Hobli, Bengaluru North Taluk.
Ex.D.7 Statement given by Village Accountant, Mallathalli Circle, Yeswanthapura Hobli, Bengaluru North Taluk.
Ex.D.8 Record of Rights in respect of Sy.No.46 of Malagala Village.
Ex.D.9 Sketch of Sy.No.46.
Ex.D.10 Survey tippani relating to Sy.No.46 of To Malagala Village.
Ex.D.16 Ex.D.17 Reminder letter dated 28.10.2014 issued by Dy.Suprerintendent of Police, Bangalore Metropolitan Task Force, Bengaluru to Tahasildar.
OS.NO:8916/2014 34 Ex.D.18 Letter dated 31.10.2014 issued by Tahsildar to Dy.Superintendent of Police, BMTF, Bengaluru.
Ex.D.19 Ex.D.19 is survey sketch of Sy.No.46. Ex.D.20 Topographical survey of Sy.No.46. Ex.D.21 Letter dated 10/28.11.2014 addressed by BBMP to Deputy Superintendent of Police, BMTF, Task Force, Bengaluru, stating the names and address of encroachers in Sy. No.46.
VI Addl.City Civil & Sessions Judge, Bengaluru City