Bangalore District Court
M/S. Karnataka Slum Clearance Board vs Shanmugam on 27 February, 2020
IN THE COURT OF IX ADDL.CITY CIVIL AND SESSIONS JUDGE
AT BANGALORE (C.C.H.5)
Dated: This the 27th day of February 2020
Present : Smt. M.H.Shantha, M.A., LL.B.,
IX Addl. C.C & S.J, Bangalore.
O.S. NO.155/2011
Plaintiff : M/s. Karnataka Slum Clearance Board,
No.55, Resildhar Street,
Sheshadripuram, Bangalore-560020
Rep. By its Commissioner
(By Sri.B.Srinivas,
Advocate)
- Vs -
Defendants : 1. Shanmugam, s/o. Late Kandaswamy,
aged about 62 years
2. Chandra, w/o. Late K.Munirathnam,
aged about 60 years
Both are residing at No.12/1,
Kandaswamy Building, Channappa Lane,
3rd cross, ITC main road, COX Town,
Jeevanahalli, Bangalore-560005.
3. Stephen, s/o. Gurunathan, Hut No.68,
Channappa Lane, ITC main road,
Cox Town Jeevanahalli,
Bangalore-560005.
4. Malathi, w/o. Kalimathu, Hut No.65,
Channappa Lane, ITC main road,
Cox Town Jeevanahalli,
Bangalore-560005.
5. Pokkisham, w/o. Srinivas, Hut No.66,
Channappa Lane, ITC main road,
Cox Town Jeevanahalli,
2
O.S.NO.155/2011
Bangalore-560005.
6. Ravichandra, s/o. Kodandapani,
Hut No.67, Chnnappa lane,
ITC main road, Cox Town Jeevanahalli,
Bangalore-560005.
(By Sri.M.A.George,
Advocate)
Date of institution
of the suit : 05.01.2011
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Injunction
Date of the commencement
of recording of the evidence : 23.07.2015
Date on which the
Judgment was pronounced : 27.02.2020
Year/s Month/s Day/s
Total Duration -09- -01- -22-
(M.H.Shantha)
IX Addl. City Civil & Sessions Judge,
Bangalore.
-----
JUDGMENT
This suit is filed by plaintiff against the defendants for judgment and decree for the relief of permanent injunction restraining the defendants, their men, agents, servants or anybody claiming through them from in any manner trespassing 3 O.S.NO.155/2011 into the suit schedule slum area or from causing interference to the dwellers in the slum area and their possession thereto.
2. The case of the plaintiff in brief is that, the plaintiff is the duly constituted and prescribed authority to ensure the improvement and clearance of slums in the State of Karnataka under the provisions of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973 and is governed by the relevant sections and Rules thereunder is obligated to perform its statutory duties under the Act. The suit schedule property known as Channappa Lane, Slum Area, being a declared slum area under the provisions of section 3 of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973. Further the plaintiff has stated that, by virtue of the orders dated 30.09.2002b passed by the Deputy Commissioner, Bangalore District, Bangalore, the area was declared as a slum area under section 3 of the Karnataka Slum Areas (Improvement and Clearance) Act 1973, in proceedings in No.KSCA/CR5/89-90. That prior to the above also the above Slum Area was declared under section 3 of the Act on 12.01.1988 and as the declaration were challenged by some persons in W.P.No.22916-21/91 before the Hon'ble High Court of Karnataka at Bangalore which was allowed by the Hon'ble Court vide its orders dated 07.01.1997, directing the Deputy Commissioner to pass appropriate orders in accordance with law after considering the contention raised by 4 O.S.NO.155/2011 the objectors in their objections filed to the notification dated 25.01.1990. Further the plaintiff has stated that, after affording an opportunity of hearing to the objectors and in view of the above, thereafter after hearing, the Deputy Commissioner vide his order dated 30.09.2002 has declared the area mentioned to be a slum area under the provisions of section 3 of Act subsequently issued a notification vide No.KSA/CR5/89-90 dated 18.10.2002 which is in force to this day.
3. Further the plaintiff has stated that, in view of the area being the declared slum area under the provisions of section 3 of the act, the Slum Clearance Board being the prescribed authority under the Act, any proceedings or action in respect of the slum proceedings or action in respect of the slum area could be done only subject to permission being accorded to the same by the Board to anybody under section 28 of the act. Further the plaintiff has stated that, in the absence of permission being granted, no action could be taken or done by any person with regard to the declared slum area and with regard to declared area i.e., Channappa Lane Slum Area as above. The defendants had instituted eviction proceedings in HRC No.10037/2006, 10038/06 and 10039/06 before the Court of Small Causes at Bangalore seeking or eviction against Respondents therein and also for possession of the same which were in the first instance dismissed and were subsequently allowed by the Hon'ble High 5 O.S.NO.155/2011 Court of Karnataka, Bangalore in HRRP No.77/08, HRRP No.78/08 and 79/08 vide orders dated 10.07.2009 in respect of property and schedule which are virtually non existent. Further the plaintiff has stated that, under guise of the same by claiming that it is already executed along with their supporters is seeking to trespass into the declared slum area and seeking to evict the dwellers by demolishing the dwellers therein over which they have no right or authority to do so and the same is being done fraudulently in order to gain possession of the slum area at the instance of certain interested persons. Further the plaintiff has stated that, no action can be taken out in respect of the declared slum area in the absence of any permission from the Board and no such permission has been granted to anybody by the Board in regard to the above slum area as per section 28 of the Act. Further the plaintiff has stated that, thereafter the area was again declared as a slum area under the provisions of the slum clearance Act 1973 therefore also the defendants have no locus- standi to illegally act in any manner whatsoever in respect of the slum area and in view of the defendants to interfere in respect of the slum area under the guise of claiming that decree is executed in non existent schedule. That the defendants along with their supporters are seeking to trespass into the slum area and interfere with the possession of the property by seeking to demolish the dwelling therein without any right over the slum area and not withstanding the same sought to act as above on 6 O.S.NO.155/2011 17.05.2010 and again on 21.06.2010 and it is likely that having failed in their attempts would seek to repeat their illegal acts. Hence, this suit.
4. In pursuance to the summons, the defendants No.1 and 2 have appeared through their counsel and filed the written statement. Subsequently, the defendants No.3 to 6 have got impleaded in this suit and filed the written statement. In the written statement the defendants No.1 and 2 have contended that, the plaintiff is barred by limitation and the suit is covered with technical omissions. The plaintiff has not issued any intimation or notice as per Law and rules governed under the Slum Clearance Act, 1973 to the defendants. Further the defendants No.1 and 2 have contended that, the defendants are in possession and enjoyment of the suit schedule property in question. The plaintiff to deprive the right of the defendants on suit schedule property trying to obtain judgment and decree by filing false suit and by misrepresentation. Further the defendants No.1 and 2 have contended that, the defendants are in possession and enjoying the suit schedule property from the time immemorial. One Kandaswamy, the father of the 1 st defendant and Kannamma (wife of Kandaswamy) and Irchamma purchased the property bearing Corporation No.126, situated at Jeevanahalli, Doddigunte Dhakle, Cox Town, Civil Station Bangalore bounded on east by Plot taken by the corporation 7 O.S.NO.155/2011 west by plots taken by Muniswamy and others, north by land belonged to cigaratee factory, south by lands of Narayanappa Seetharamaiah, measuring East to West 24.6 feet, North to South 24.6 feet on 31.07.1958 from erstwhile owners Munivenkataramaiah, s/o. Muniswamappa through sale deed. After the purchase the said Kandaswamy Irachamma and Kannamma got transferred the khatha of the said property in their names, they used to pay tax to the Bangalore City Corporation. Further the defendants No.1 and 2 have contended that, by virtue of the said registered sale deed, the said Kandaswamy, Kannamma and Irachamma became the owners and right holders of the said property, they used to enjoy said property as absolute owners and exercised acts of ownership in and over the said property. The said Kandasamy and Irachamma and Kannamma had been in possession and enjoying the suit schedule property. All the records, khatha tax paid receipts goes to show that they are the owners of the said property and they are in possession of the said property. Further the defendants No.1 and 2 have contended that, the said Kandaswamy, Kannamma and Irachamma obtained City survey Inquiry Register extract vide P.T. Sheet No.1134, dated 28.04.1975 from the Office of the Assistant Director of Land Records, City Survey No.11, K.R.Circle, Bangalore shows that the names of the owners of the property Kandaswamy, Yerasamma and Kannamma are the holders as per the sale deed from 8 O.S.NO.155/2011 Munivenkataramaiah, the said Kandaswamy, Kannamma and Irachamma obtained field book sketch from the Assistant Director of Land Records, City Survey No.2, Bangalore shows the area of the said property and chaltha No.45, City Survey No.143, Plan No.1134, Local area-75, Cox Town. All these records reveals that the said Kandaswamy, Irasamma and Kannamma are the owners of the said property and they are in possession of the said property.
5. Further the defendants No.1 and 2 have contended that, the said Kandaswamy, his wives Kannamma and Irachamma died on 16.02.1988, 15.02.1997, 11.03.1993 respective leaving behind the plaintiffs to enjoy the said property No.12/1, Chinnappa Layout, Bangalore bearing Old Corporation No.126 and New Corporation No.12/1 and Door No.126 and New Door No.12/1. Further the defendants No.1 and 2 have contended that, the 1st is the son of late Kandaswamy, residing at the said premises as a joint family with their children viz., Karunakaran, Dhamodhara, Velu, Sasi Kumar and daughter Shashikala and 2 nd defendant is wife Munirathnam (son of Kandaswamy) expired on 18.07.1998, living with their children Anitha, Ramesh, Saraswathi, Radha, Kumuda, Manimagalai, Sendil Kumar all the above persons are residing at the said address of the property. Further the defendants No.1 and 2 have contended that, the defendants are the legal heirs of Kandaswamy, the defendants 9 O.S.NO.155/2011 produced family tree obtained from the Village Accountant, Kasaba Hobli, Bangalore North Taluk. The said family tree indicates the names of the legal heirs and relationship to the deceased Kandaswamy. Further the defendants No.1 and 2 have contended that, after death of Kandaswamy, the defendants have got transferred the khatha of the said property in their joint names as per khatha certificate dated 23.05.2011. Extract in the joint names of the defendants and shows the details of assessment of property in their names, the defendants have paid tax as per receipt dated 10.08.2005.
6. Further the defendants No.1 and 2 have contended that, all the records and title deeds establishes that the defendants are the owner and occupants in possession and enjoyment over the said property in question. The question of attempting to trespassing into the suit schedule property by the defendants as alleged by the plaintiff does not arise. The plaintiff filed false suit for unlawful gain to harass these defendants. The plaintiff merely producing the notification passed by the Government of Karnataka claiming as slum area and filed the suit, the suit is not maintainable and the suit is bad in law and void abitio. Further the defendants No.1 and 2 have contended that, the suit is devoid of merits and the suit is unsustainable in law and facts. Further the defendants No.1 and 2 have contended that, the area known as Channappa Lane slum area being declared as 10 O.S.NO.155/2011 slum area under the provisions of Karnataka Slum area Act, 1973 are not in knowledge of these defendants. Further the defendants No.1 and 2 have contended that, they never trespassed into the suit property as alleged by the plaintiff. The defendants are in possession of the suit schedule property and inherited the property through succession. The question of trespass does not arise at all. The plaintiffs suppressed the material facts and information and filed suit on false grounds creating concocted story.
7. Further the defendants No.1 and 2 have contended that, after the death of Kandaswamy, the family of the defendants met financial crises and to maintain their family, they had let a portion of the premises No.12/1, Jeevanahalli, Bangalore, consisting of one room and kitchen on monthly rent of Rs.50/- per month in 1990 measuring 10 x 17 feet i.e., 170 sq. feet to one Stephen through oral agreement. The said Stephen paid rents till December 2003, thereafter the said Stephen did not paid the rents and stopped and due arrears of rent of Rs.1,200/-. Further the defendants No.1 and 2 have contended that, they had let out a portion of the suit schedule property consisting one room and kitchen on monthly rent of Rs.50/- measuring 1 x 15 feet i.e., 195 sq. feet to one Chandra, deceased by her LR Malathi @ Pappu. The said Chandra paid rents till December 2003 thereafter stopped to pay the rents, she was in due of rent 11 O.S.NO.155/2011 of Rs.1,200/-. Further the defendants No.1 and 2 have contended that, the suit schedule property were occupied by the tenants, there are total 8 tenaments in the said property viz., HRC No.10037/2006 Joseph, HRC No.10038/2006 Muniswamy, HRC No.10039/2006 Muniswamy deceased LRs Radha, O.S.No.15809/2006 Pukkisam, O.S.No.15810/2006 Ravichander, O.S.No.15811/2006 transferred to Small Cause Court, S.C.No.153/2011 Parvathi, O.S.No.15812/2006 Chandra deceased LR Malathi @ Appu and O.S.No.15813/2006 Stephen. Further the defendants No.1 and 2 have contended that, the said tenants/occupants failed to pay the rents and failed to vacate and deliver the vacant possession of the suit schedule property even inspite of repeated requests and demands made by these defendants. Further the defendants No.1 and 2 have contended that, finally, the defendants filed eviction case in HRC No.10037/2006, 10038/2006 and 10039/2006, before the Court of Small Causes at Bangalore. Apart from this, the defendants have also filed ejectment suit in O.S.No.15809/2006, 15810/2006, on the file of Addl. City Civil Judge, Bangalore, O.S.No.15812/2006 and O.S.No.15813/2006 on the file of Addl. City Civil Judge, CCH 21, Bangalore O.S.No.15811/2006, on the file of City Civil (Addl.) Judge, thereafter transferred to Small Causes Judge, SCH-19, and numbered as 15319/2011 against said tenants. In all the eject proceedings in original suits, the plaintiff filed impleading application before this Court. The said 12 O.S.NO.155/2011 impleading application is pending for adjudication in the respective Courts.
8. Further the defendants No.1 and 2 have contended that, the eviction proceedings filed by the defendants in HRC No.10037/2006, 10038/2006, 10039/2006 were dismissed by the Hon'ble Court of Small Causes at Bangalore, on lack of relationship as landlord and tenant could not be establishes. Aggrieved by the said dismissal order, the defendants had preferred HRRP No.77/2008, HRRP 78/2008 and HRRP 79/2008 before the Hon'ble High Courts. The Hon'ble High Court allowed the HRRP petitions and passed order directing the tenants/occupants to quit and vacate and deliver their respective portions occupied by them. The Hon'ble High Court granted time of 3 months as per order dated 10.07.2009. After the time granted by the High Court, the said tenants/occupants have not vacate the said portions. This Court ordered to quit and evict the tenants. The said execution petition was duly executed and order of the Court was executed and evicted the tenants/occupants in the schedule property and the defendants taken possession of the suit schedule property. Further the defendants No.1 and 2 have contended that, from the eviction proceedings and execution proceedings, the defendants taken the lawful possession of the property, thereby the defendants at present in lawful possession over the suit schedule property.
13O.S.NO.155/2011 The defendants have never been disturbed from the possession either by the plaintiff authority or any statutory authority or third parties so far. Further the defendants No.1 and 2 have contended that, there is no property cause of action for the suit. The plaintiff themselves created false cause of action and filed above suit by misrepresentation. The plaintiffs have not paid proper Court fee. Further the defendants No.1 and 2 have contended that, the suit is barred by limitation. The plaintiff keeping quite for all these decades has not taken up action. All these years, the plaintiff has come up with the suit. The plaintiff is trying to knock off the valuable property of the defendants by filing false suit by misrepresentation. The plaintiff keeping quite for all these years, now come up with the suit that too even after filing the eviction case HRRP proceedings and even after filed execution and taken the possession of the said property the plaintiff knowing all these proceedings has not raised any voice in their side in the proceedings. Further the defendants No.1 and 2 have contended that, the defendants never trespassed the suit property on 17.05.2010 and again 21.06.2010. The defendants are in possession and enjoyment of the suit schedule property hence, the question trespassed alleged by the plaintiff on said dates in the said plaint does not arise at all. The plaintiff created false story and filed the suit for unlawful pain. Further the defendants No.1 and 2 have contended that, if the defendants would have been attempted to trespass, it is the 14 O.S.NO.155/2011 mandatory duty of the plaintiff to cause a notice or intimation as laid down in law. Without issuing a notice or intimation, the plaintiff clandestinely filed the suit to get an order by misrepresentation and dispossesses these defendants from their possession and against law and natural justice. They are the true owners in possession and enjoying schedule property. The defendants have got valid records and title deeds in their names. Further the defendants No.1 and 2 have contended that, the plaintiff indicated the schedule property shows the entire extent of the location of the property. The defendants property No.12/1, Kandaswamy, Jeevanahalli, Bangalore comes within the schedule property in the plaint i.e., within 16 guntas in Sy.No.121/3, as indicated in the schedule of the plaint. Further the defendants No.1 and 2 have contended that, the plaintiff by mentioning the slum area and indicated entire land as 16 guntas in Sy.No.121/3, and 0.04 guntas in Sy.No.121/3, in item No.S1 and 20 in the schedule property and filed the above suit claiming as slum area. The plaintiff by furnishing the entire area of the schedule. The plaintiff has not mentioned the area of the suit property. The plaintiff has not given proper and accurate description of the property which these defendants would trespass. The suit filed by the plaintiff is by misrepresentation. Hence, the defendants No.1 and 2 pray for dismissal of the suit.
9. The defendants No.3 to 6 have filed the written statement.
15O.S.NO.155/2011 In the written statement the defendants No.3 to 6 have contended that, the defendants No.3 to 6 are one among the Slum Dwellers of Channappa Lane Slum Area and living in the said area since their date of birth having constructed the houses by their late parents. The suit was filed by the Karnataka Slum Clearance Board to pass a judgment and decree of permanent injunction restraining the defendants No.1 and 2 their agents servants etc., or anybody claiming through them from in any manner trespassing into the suit schedule slum area or from causing interference to the dwellers living in the slum area and their possession thereto. Further the defendants No.3 to 6 have contended that, the property in question is situated a Channappa lane, Doddigunta, Jeevanahalli, Bangalore. The area was notified as a slum vide Government notification dated 18.10.2002 by which an area to the extent of 20 guntas was notified as a slum area under section 3 of the Karnataka Slum Area (Improvement and Clearance) Act, 1973. Further the defendants No.3 to 6 have contended that, in view of section 28 of Karnataka Slum Area (Improvement and Clearance) Act, 1973 for instituting any suit after the commencement of the Act or proceedings for obtaining any decree or order for the eviction of tenant from any building or land in slum area, the permission of the prescribed authority is required to be obtained. Further the defendants No.3 to 6 have contended that, the State of Karnataka has appointed the Commissioner, Karnataka Slum 16 O.S.NO.155/2011 Clearance Board by way of notification dated 31.12.1991, the post which was existent as then which is presently notified as Commissioner by way of notification dated 27.12.2001 as the prescribed authority. Further the defendants No.3 to 6 have contended that, the permission of the Commissioner Karnataka Slum Clearance Board is mandatory for instituting any proceedings and even decree if obtained, cannot be executed without the permission of the prescribed authority. Further the defendants No.3 to 6 have contended that, the defendants No.1 and 2 in the case have attempted to evict the defendants No.3 to 6 and they have filed original suits bearing O.S.No.15809/2006, 15810/2006, 15812/2006 and 1583/2006 before the Hon'ble City Civil Court at Bangalore (Mayo Hall) and the proposed defendants in this case are agitating in the said cases. Further the defendants No.3 to 6 have contended that, the defendants No.1 and 2 have filed written arguments in this suit with false and frivolous facts and trying to mislead this Court. The defendants No.3 to 6 praying to pass the order and judgment against the defendants No.1 and 2 from permanently restraining them from in any manner in the suit schedule property. Hence, the defendants No.3 to 6 pray for decreeing the suit.
10. On the above pleadings of the parties, my predecessor-in- office has framed the following issues :
1. Whether the plaintiff proves his lawful possession 17 O.S.NO.155/2011 over the schedule property?
2. Does plaintiff prove the alleged obstruction of the defendants?
3. Whether defendant prove that suit is not maintainable for want of issue of notice as contended?
4. Do they prove that suit is barred by law of limitation?
5. Whether plaintiff is entitled for the relief sought for?
6. What order or decree?
11. In support of the case of the plaintiff, the Assistant Executive Engineer has got examined as P.W.1. The plaintiff has produced 9 documents at Ex.P-1 to Ex.P-9. On the other hand, the 2nd defendant has got examined himself as D.W.1, and also also examined one witness as D.W.2 and 3 rd defendant has been examined as D.W.3 and the defendants have produced 26 documents at Ex.D-1 to Ex.D-26 and closed their side evidence.
12. Heard the arguments of the learned counsel for both plaintiff and the defendants. After hearing the arguments and considering the oral and documentary evidence on record, my findings on the above issues are as here under :
Issue No.1 : In the Negative
Issue No.2 : In the Negative
18
O.S.NO.155/2011
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Issue No.6 : As per final order for the following :
REASONS
13. ISSUE No.1 TO 5 : As these issues are inter connected with each other, they are up together for discussion.
In support of the case of the plaintiff, Mahadevaiah the Assistant Executive Engineer of plaintiff's Slum Development Board has got examined himself as P.W.1. P.W.1 in his evidence has deposed that, the suit schedule property is declared as slum area under the provisions of section 3 of Karnataka Slum Areas (Improvement and Clearance) Act 1973 vide order dated 30.09.2002 passed by the Deputy Commissioner, Bangalore District. Further P.W.1 in his evidence has deposed that, the defendants herein had instituted the eviction proceedings in HRC No.10037/2006, 10038/2006 and 10039/2006 before the Court of Small Causes, Bangalore praying for eviction against the respondents and for possession of the same and the said petitions were dismissed by the said Court. Further P.W.1 in his evidence has deposed that, the Hon'ble High Court of Karnataka has allowed the HRRP No.77/2008, 78/2008 and 79/2008 as per order dated 10.07.2009 in respect of the property which are not existent. Further P.W.1 in his evidence has deposed that, the 19 O.S.NO.155/2011 defendants are trying to trespass into the suit schedule property and trying to evict the dwellers by demolishing the dwellings. Further P.W.1 in his evidence has deposed that, the defendants have no right over the slum area. Further P.W.1 in his evidence has deposed that, he has filed the suit in order to protect the slum dwellers in the slum area. The plaintiff has produced authorisation letter, parichaya pathras, final notification, sketch and the same are marked at Ex.P.1 to Ex.P.9. In the cross- examination P.W.1 has deposed that, one Muniswamy, James, Joseph and Radha have vacated the properties as per the eviction order passed by the Hon'ble High Court of Karnataka. Further in the cross-examination P.W.1 has denied that, the suit schedule property bearing Sy.No.121 measuring 16 guntas and 4 guntas are not belonging to the plaintiff slum board. Further in the cross-examination P.W.1 has deposed that, Ex.P.7 is the notification dated 18.10.2002 issued by the Deputy Commissioner, Bangalore. Further in the cross-examination P.W.1 has admitted that, in the said notification there is no mention of name of defendants No.1 and 2. Further in the cross-examination P.W.1 has admitted that, in the column No.2 of the said notification owners names are mentioned and names of Kandaswamy the father of the 1 st defendant and Munirathnamma the husband of the 2nd defendant are not mentioned. Further in the cross-examination P.W.1 has deposed that, he has created Ex.P.2 to Ex.P.6 for the purpose of filing of 20 O.S.NO.155/2011 this suit. Further in the cross-examination P.W.1 has deposed that, "1958 ರರದಲಲ ದವಸಸತತತ ಪ ಪತವದಯರ ಮತತತ ಅವರ ಪವರಜರ ಖತಯಲ ಇದ ಎರಬತದತ ನನಗ ಗಲತತಲಲ. ಗಜಟ ನಲನಟಫಕನಷನ ನಲ ಕರದಸಸಮ, ಇರಚಮಮ ಮತತತ ಕನನಮಮ ರವರ ಹಸರತ ಇಲಲ. ನಪ 7 ರಲ ಕಣಸರತವ ವವಕತಗಳತ ಸರರ ನರ. 121 ರ 16 ಗತರಟಗ ಓನರನ ಹಲರತತ 4 ಗತರಟಗ ಅಲಲ ಎರಬತದತ ನನಗ ಗಲತತಲಲ. ಸದರ 4 ಗತರಟಗ ಕರದಸಸಮಯನ ಓನರ ಎರಬತದತ ಗಲತತಲಲ. ದವಸಸತತಗ ಕರದಸಸಮ, ಇರಚಮಮ ಮತತತ ಕನನಮ ದ ನ ಮಲನಕರಗದತ ಪ ಪತವದಯರತ ಅವರ ವರಸದರರತ ಎರಬತದತ ನನಗ ಗಲತತಲಲ. ಮತನಸಸಮ ಟನರಟ, ಎಲಲರತ ಖಲ ಮಡದರ ಎರದರ ಸರಯಲಲ. ಅವರತ ಅಲಯನ ಇದರ. ಅವರ ಹಸರತ ಹನಳಲತ ಆಗತವದಲಲ. ಮತನಸಸಮ ಮತತತ ಇತರರತ ಖಲ ಮಡದ ಮನಲ ಅವರ ಮನಲ ನನರನನದರತ ಆಕಪಣ ಮಡದರ ಎರಬ ಪ ಪಶನಗ ಸಕಯತ ಗಲತತಲಲ ಎರದತ ನತಡಯತತತರ."
From the above evidence of P.W.1, it is clear that, P.W.1 Mahadevaiah the Assistant Executive Engineer of plaintiff Slum Development Board has pleaded his ignorance regarding the fact that, the father of the 1 st defendant Kandaswamy was the owner of the suit schedule property bearing Sy.No.121, measuring 4 guntas. Further from the above evidence of P.W.1 it is clear that, the defendants No.1 and 2 have filed HRC cases against Joseph, Muniswamy and Radha in HRC No.10037/2006, 10038/2006 and 10039/2006 on the file of XV Addl. Judge, Court of Small Causes, Mayo Hall, Bangalore for eviction in respect of properties No.12/1, Kandaswamy Building, Channappa Lane, 3 rd cross, ITC main road, Cox Town, Jeevanahalli, Bangalore. Further 21 O.S.NO.155/2011 from the evidence of P.W.1 and also documents produced by the parties. It is clear that, the said HRC cases in 10037/2006, 10038/2006 and 10039/2006 were dismissed by the said XV Addl. Judge, Court of Small Causes, Mayo Hall, Bangalore on 22.11.2007. Further it is clear that, against the said order passed in the said HRC cases the defendants No.1 and 2 herein have preferred House Rent Revision Petition before the Hon'ble High Court of Karnataka in HRRP No.77/2008 to 79/2008 and the said HRRP petitions were allowed by the Hon'ble High Court of Karnataka as per the order dated 10.07.2009 directing the said tenants by name Joseph, Muniswamy and Radha quit and deliver the vacant possession of the premises within a period of 3 years from the date of this order. Further from the evidence of P.W.1 it is clear that, the said tenants in HRC No. 10037/2006, 10038/2006 and 10039/2006 have vacated the properties as per the order of the Hon'ble High Court of Karnataka in HRRP No.77/2008, 78/2008 and 79/2008. Therefore, from the evidence of P.W.1 and also from the documents produced by the parties it is clear that, the plaintiff is not in possession of the entire suit schedule property. Further it is clear that, there is dispute regarding the identity of the property.
14. In support of the case of the defendants No.1 and 2, the 2nd defendant has got examined herself as D.W.1. D.W.1 in her evidence has deposed that, the plaintiff's Slum Board has no 22 O.S.NO.155/2011 right, title and interest over the suit schedule properties. Further D.W.1 in her evidence has deposed that, her father Kandaswamy, Kannamma wife of Kandaswamy and Irichamma have purchased the property bearing Corporation No.126 situated at Jeevanahalli, Cox Town, Civil Station, Bangalore from one Munivenkataramaiah under the registered sale deed dated 31.07.1958. Further D.W.1 in her evidence has deposed that, after the purchase of the said property the khatha of the said property was standing in the name of her father Kandaswamy, mother Kannamma and Irachamma. Further D.W.1 in her evidence has deposed that, thereafter they have constructed many portions and let out to the tenants by name Joseph, Muniswamy, Radha, Pokkisham, Ravichander, Malathi, Stephen and Parvathi. Further D.W.1 in her evidence has deposed that, HRC case filed by them in HRC No.10037/2006, 10038/2006, 10039/2006 were dismissed by the Small Causes Court at Bangalore and against the said order they have preferred HRRP before the Hon'ble High Court of Karnataka in HRRP No.77/2008, 78/2008 and 79/2008. Further D.W.1 in her evidence has deposed that, the Hon'ble High Court of Karnataka has allowed the said HRRP petitions and passed eviction orders against the said tenants by name Joseph, Muniswamy and Radha. Further D.W.1 in her evidence has deposed that, thereafter they have evicted the said Joseph, Muniswamy and Radha and taken the possession of the property. Further D.W.1 in her evidence has 23 O.S.NO.155/2011 deposed that, they have filed eviction suit against Pokkisham in O.S.No.15809/2006, Ravichander in O.S.No.15801/2006, Malathi LR in O.S.No.15812/2006 and Stephen in O.S.No.15813/2006 before the Mayohall Court, Bangalore. The defendants have produced certified copy of sale deed, encumbrance certificates, certified copy of endorsement, certified copy of property register extract, copy of khatha, tax receipt, survey extract, survey certificate, khatha certificate, genealogical tree, BBMP demand notice, certified copy of eviction order, photographs, C.D., sketch, certified copy of order in O.S.No.15809/2006, certified copy of order in O.S.No.15810/2006, copy of plaint in O.S.No.15812/2006, certified copy of I.D. card, certified copy of property register extracts, certified copy of tax receipt, certified copy of aadhar card, certified copy of tax receipt, certified copy of voters I.D. card and certified copy of I.D. card and the same are marked at Ex.D.1 to Ex.D.26. D.W.1 in his cross-examination has admitted that, they have filed the eviction case against the defendants No.3 to 6 before the Mayohall Court. Further D.W.1 in his cross-examination has denied that, the said four case was dismissed by the Mayohall Court. Further D.W.1 in his cross- examination has denied that, they have filed the HRC cases without taking permission from the Slum Board against three persons. Further D.W.1 in his cross-examination has deposed that, the said cases were decreed in their favour.
24O.S.NO.155/2011
15. D.W.2 Selvam @ Selvaraj in his evidence has deposed that, his father late Muniswamy had purchased the property from the vendors of the defendants No.1 and 2. Further D.W.2 in his evidence has deposed that, his property is situated by the side of the suit schedule property. Further D.W.2 in his evidence has deposed that, his house is situated towards the southern side of property of the defendants No.1 and 2. Further D.W.2 in his evidence has deposed that, the defendants are the absolute owner in possession and enjoyment of the suit schedule property. Further D.W.2 in his evidence has deposed that, the property bearing No.12/1, Channappa Lane, 3 rd cross, ITC Layout, Cox Town was purchased by the father of the 1 st defendant Kandaswamy and father-in-law of the defendant No.2 as per Ex.D.1. Further D.W.2 in his evidence has deposed that, HRC case filed by the defendants No.1 and 2 in HRC No.10037/2006, 10038/2006, 10039/2006 were dismissed by the Small Causes Court at Bangalore and against the said order the defendants No.1 and 2 have preferred HRRP before the Hon'ble High Court of Karnataka in HRRP No.77/2008, 78/2008 and 79/2008. Further D.W.2 in his evidence has deposed that, the defendants No.1 and 2 have filed eviction suit against Pokkisam in O.S.No.15809/2006, Ravichander in O.S.No.15810/2006, Smt.Malathi LR in O.S.No.15812/2006 and against Stephen in O.S.No.15813/2006. Further D.W.2 in his evidence has deposed that, the defendants No.1 and 2 have filed eviction case against 25 O.S.NO.155/2011 Parvathi in S.C.15319/2011 before the Small Causes Court, Mayohall Unit, Bangalore and the said suit was decreed in favour of the defendants No.1 and 2. In the cross-examination D.W.2 has denied that, the suit schedule property and his property also acquired by the Slum Board.
From the above evidence of D.W.1 and D.W.2, it is clear that, the defendants No.1 and 2 have filed HRC cases against Joseph, Muniswamy and Radha in HRC No.10037/2006, 10038/2006 and 10039/2006 on the file of XV Addl. Judge, Court of Small Causes, Mayo Hall, Bangalore for eviction in respect of properties No.12/1, Kandaswamy Building, Channappa Lane, 3 rd cross, ITC main road, Cox Town, Jeevanahalli, Bangalore. Further from the evidence of P.W.1 and also documents produced by the parties, it is clear that, the said HRC cases in 10037/2006, 10038/2006 and 10039/2006 were dismissed by the said XV Addl. Judge, Court of Small Causes, Mayo Hall, Bangalore on 22.11.2007. Further it is clear that, against the said order passed in the said HRC cases the defendants No.1 and 2 herein have preferred House Rent Revision Petition before the Hon'ble High Court of Karnataka in HRRP No.77/2008 to 79/2008 and the said HRRP petitions were allowed by the Hon'ble High Court of Karnataka as per the order dated 10.07.2009 directing the said tenants by name Joseph, Muniswamy and Radha quit and deliver the vacant possession of the premises within a period of 3 years 26 O.S.NO.155/2011 from the date of this order. Ex.D.14 certified copy of the judgment in S.C.No.15319/2011 dated 29.08.2013 filed by the defendants No.1 and 2 against one Parvathi passed by the XV Addl. Judge, Court of Small Causes, Mayohall Unit, Bangalore and in the said judgment the Court has ordered that "the suit of the plaintiff is decreed with costs. The defendant is hereby directed to quit and deliver vacant possession of the suit schedule property to the plaintiffs within a period of 2 months from the date of this order. Defendant is also directed to pay arrears of the rent of Rs.1,00/- to the plaintiffs and also damages at the rate of Rs.50/- per month from 24.04.2006 to till recovery of the possession. In case defendant failed to vacate and pay the arrears of the rent and damages, then plaintiff can recover the same as per the same. Draw decree after the receiving deficit Court fee from the plaintiffs in respect of damages pertains to the period 2404.2006 till recovery of possession and also by getting valuation slip in this regard." Therefore, from the evidence evidence of D.W.1 and D.W.2 and also from the documents produced by the defendants No.1 and 2 it is clear that, it is clear that plaintiff is not in possession of the entire suit schedule property.
16. D.W.3 Stephen in his evidence has deposed that,he is the one of the Slum dwellers, Channappa Land and he is living in the said area. Further D.W.3 in his evidence has deposed that, the 27 O.S.NO.155/2011 suit schedule property was notified as slum as per the Government Notification dated 18.10.2002. In the cross- examination D.W.3 has deposed that, he did not know that, the father of the 1st defendant Kandaswamy has purchased the suit schedule property in the year 1958. Further D.W.3 in his cross- examination has deposed that, he did not know that, the said Radha, Joseph and James are residing by the side of his house. Further D.W.3 in his cross-examination has deposed that, he did not know that, as per the order of the Hon'ble High Court the said Radha, Joseph and James have vacated the property. From the evidence of D.W.3 also it is clear that, the plaintiff is not in possession of the entire suit schedule property.
From the evidence of P.W.1, D.W.1 to D.W.3 and also from the documentary evidence on record, it is clear that, the defendants No.1 and 2 have filed eviction suits against them in O.S.No.15809/2006, O.S.No.15810/2006, O.S.No.15812/2006 and O.S.No.15813/2006 and the said suits O.S.No.15809/2006 and O.S.No.15810/2006 were dismissed as per judgment dated 23.07.209 and the suit in O.S.No.15812/2006 and O,.S.No.15813/2006 were dismissed as per the judgment dated 26.09.2019. From the certified copy of the judgment and decree passed in O.S.No.15812/2006 passed by the IV Addl. City Civil and Sessions Judge, Mayohall Unit, Bangalore (CCH21) dated 24.10.2019 the said suit filed by the defendant was dismissed 28 O.S.NO.155/2011 observing that, the plaintiffs i.e., defendants No.1 and 2 herein have failed to prove the relationship of landlord and tenant. From the evidence of D.W.3 and also from the oral and documentary evidence on record, and also from the said certified copy of the judgment and decree passed in O.S.No.15812/2006 passed by the IV Addl. City Civil and Sessions Judge, Mayohall Unit, Bangalore (CCH21) dated 24.10.2019, it is clear that, the plaintiff herein has filed the impleading application in the said eviction suits filed by the defendants No.1 and 2 herein and got impleaded in the said suits as defendant No.2. Further from the evidence on record, it is clear that, the plaintiff has filed this suit on 24.02.2011 against the defendants for the relief of permanent injunction. Further from the evidence on record, it is clear that, the plaintiff has knowledge about the said suits in O.S.No.15809/2006, O.S.No.15810/2006, O.S.No.15812/2006, O.S.No.15813/2006 and HRC No.10037/2006, HRC No.10038/2006, HRC NO.10039/2006, HRRP No.77/2008, HRRP No.78/2008 and HRRP No.79/2008 before the Hon'ble High Court of Karnataka and IV Addl. City Civil Judge, Mayohall Unit, Bangalore and XV Addl. Judge, Court of Small Causes, Mayo Hall, Bangalore at the time of filing of this suit. Therefore, in the circumstances of the case, the suit filed by the plaintiffs for bare injunction is not maintainable. Further the plaintiff has failed to prove that, he is in possession of the entire suit schedule property. The defendants No.1 and 2 have 29 O.S.NO.155/2011 contended that, the suit filed by the plaintiff is barred by law of limitation and the suit is not maintainable for want of issue of notice. But the defendants No.1 and 2 have failed to prove the said contentions taken by them.
From the oral and documentary evidence on record it is clear that the plaintiff has failed to prove its lawful possession over the entire suit schedule property. The plaintiff has contended that the defendants have interfered and obstructed with their possession and enjoyment of the suit schedule property. But the plaintiff has failed to prove its possession over the entire suit schedule property. Therefore the alleged interference with the same does not arise for consideration on the facts of the case. As the plaintiff has failed to prove its possession over the entire suit schedule property and also the interference by the defendants to the same, the plaintiff is not entitled for the relief of permanent injunction as sought for in this suit. Therefore the plaintiff has failed to prove issue No.1, 2 and 5 and defendants No.1 and 2 have failed to prove issue No.3 and 4. Therefore, issue No.1 to 5 are answered in the NEGATIVE.
17. ISSUE NO.6 : In view of my findings on issues 1 to 5 and for the reasons stated therein, this suit filed by plaintiff deserves to be dismissed. In the result, I proceed to pass the following:
O R D E R 30 O.S.NO.155/2011 This suit filed by plaintiff is hereby dismissed.
In the circumstances, there shall be no order as to costs.
(Dictated to the Judgment Writer directly on the Computer, corrected and then pronounced by me in the open court, on this the 27th day of February 2020).
(M.H.Shantha) IX Addl. City Civil & Sessions Judge, Bangalore.
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ANNEXURE List of witnesses examined on behalf of plaintiff :
P.W.1 Mahadevaiah List of documents exhibited on behalf of plaintiff :
Ex.P.1 Authorisation letter Ex.P.2 to Ex.P.6 Parichaya pathra Ex.P.7 Final notification Ex.P.8 Sketch Ex.P.9 Parichaya pathra
List of witnesses examined on behalf of defendant :31
O.S.NO.155/2011 D.W.1 Chandra D.W.2 M.Selvam @ Selvaraj D.W.3 Stephen List of documents exhibited on behalf of defendant :
Ex.D.1 Certified copy of sale deed
Ex.D.1(a) Typed copy of sale deed
Ex.D.2 Encumbrance certificate
Ex.D.3 Certified copy of endorsement
Ex.D.4 Certified copy of property register extract
Ex.D.5 Encumbrance certificate
Ex.D.6 Copy of khatha
Ex.D.7 Tax receipt
Ex.D.8 Survey extract
Ex.D.9 Survey certificate
Ex.D.10 Khatha certificate
Ex.D.11 Genealogical tree
Ex.D.12 BBMP demand notice
Ex.D.13 Certified copy of eviction order
Ex.D.14 Certified copy of eviction order
Ex.D.15 Photographs
Ex.D.15(a) C.D.
Ex.D.16 Sketch
Ex.D.17 Certified copy of order in O.S.No.15809/2006
Ex.D.18 Certified copy of order in O.S.No.15810/2006
32
O.S.NO.155/2011
Ex.D.19 Copy of plaint in O.S.No.15812/2006 Ex.D.20 Certified copy of I.D. card Ex.D.21 Certified copy of property register extracts Ex.D.22 Certified copy of tax receipt Ex.D.23 Certified copy of aadhar card Ex.D.24 Certified copy of tax receipt Ex.D.25 Certified copy of voters I.D. card Ex.D.26 Certified copy of I.D. card IX Addl. City Civil & Sessions Judge, Bangalore.
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