Bangalore District Court
Sri.Nagaraju vs Sri.Arasappa on 26 September, 2016
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY (CCH.NO.43).
PRESENT: Sri.BAILUR SHANKAR RAMA,
B.Sc., M.A., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU.
Dated this the 26th day of September 2016.
O.S.No.7221/2014
Plaintiff:- Sri.Nagaraju,
S/o.Late Revanna,
Aged about 52 years,
R/at No.350, 2nd Cross,
Jagajyothi Layout,
Nagadevanahalli,
Bangalore - 560 056.
(By - Sri.Madhukar Deshpande, Adv.)
v.
Defendants:- 1. Sri.Arasappa,
S/o.Byranna,
Aged: Major,
R/at No.012,
Widia Layout,
Vijayanagar,
Bangalore - 560 040.
2. Dr.Ashok,
S/o.Not known to the plaintiff,
Aged about 55 years,
HCG Tower,
No.8, P.Kalinga Rao Road,
Sampangiram Nagar,
2 O.S.No.7221/2014
Bangalore - 560 027.
(D1 - By Sri.K.M.Prakash, Adv.
D2 - By Sri.Ravishankar Patil, Adv.)
Date of institution of the suit : 18.09.2014
Nature of the suit : Permanent Injunction,
Date of commencement of : 07.11.2015
Recording of the evidence
Date on which the Judgment : 26.09.2016
was pronounced
Total Duration : Years Months Days
02 00 08
(BAILUR SHANKAR RAMA)
nd
42 ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
JUDGMENT
This is a suit filed by the plaintiff against the defendants for the relief of permanent injunction and costs.
2. The brief facts as averred in the plaint are that:-
The plaintiff has acquired the suit schedule property with the assistance of Jagajyothi Housing Co-operative Society 3 O.S.No.7221/2014 Limited, Bangalore. The land owners - Mr.Doddaiah, Mr.Veeranna, Mr.Junjumaraiah and Mr.Allatappa through their GPA Holder Mr.K.K.Byadagi, who is the Secretary of Jagajyothi Housing Co-operative Society Limited, executed a Registered Sale Deed dated 11.11.2013 in favour of the plaintiff. Since then the plaintiff has been in lawful possession and enjoyment of the property. After the purchase, the plaintiff applied to Bruhat Bengaluru Mahanagara Palike for effecting transfer of katha, accordingly BBMP has issued katha in Form-B Register. The plaintiff has been making payment of tax to BBMP from 2008-09 to 2014-15. Nil encumbrance certificate from the period 01.04.2013 to 07.04.2013 is also produced. The defendants are constructing apartments in their property, which is adjacent to the suit schedule property. The property of the plaintiff falls to the western side of the property of the defendants. They are constructing the apartments without leaving any set back to the western side of their property as per law. More over, the defendants showing to the BBMP Officers, suit schedule property as set back area left by them to the apartment being constructed in their property. When the plaintiff asked the defendants about the same, they 4 O.S.No.7221/2014 threatened the plaintiff with dire consequences and told him that the plaintiff should not inform the BBMP Officers about not leaving the set back to the apartments being constructed in their property. By putting such construction without leaving set back, they are causing aerial encroachment over the suit schedule property. The plaintiff gave complaint to Joint Commissioner, BBMP, Rarajashwarinagar Zone, Bangalore. The authorities have not taken any action. The defendants have also dumping all the building materials in the property belonging to the plaintiff without his consent and permission. Hence, the suit.
3. After the service of suit summons, defendant No.1 appeared through his advocate - Sri.K.M.Prakash and defendant No.2 through his advocate - Sri.Ravishankar Patil. The defendant No.2 filed written statement contending that the original owners - Mr.Govindappa, Mr.Nagappa and Mr.Galappa represented by GPA Holder -Mr.K.K.Byadagi, Honorary Secretary of Jagajyothi Housing Co-operative Society Limited, sold the house property bearing V.P.Katha No.6, H.L.No.359, situated at Nagadevanahalli, Kengeri Hobli, Bangalore South Taluk, measuring East to West: 70'+62'/2 5 O.S.No.7221/2014 feet and North to South: 57'+70'/2 feet with ½ square AC sheet roofing house bounded on:
East by: Property No.358,
West by: Drain,
North by: Property No.387 and 386 and
South by: 40 feet Road
in favour of the defendant No.2 by virtue of the Sale Deed dated 28.06.1993. The BDA by its letter dated 07.07.1997 issued an Order to defendant No.2, regularizing the unauthorized construction on the site of this defendant bearing No.359 on acceptance of Rs.80,000/- as fine for site in Sy.No.6 bearing No.359, extent of 4500 square feet in Nagadevanahalli Village bounded on:
East by: Property No.358,
West by: Drain,
North by: Property No.387 and 386 and
South by: 40 feet Road.
As per the orders of Chief Officer dated 04.02.1998 and certified transfer of katha was effected in the name of defendant No.2. All the relevant documents of title of defendant No.2 shows that the western boundary is as drain. 6 O.S.No.7221/2014 The defendant No.2 has paid property tax to property No.359 and since 1993 he has been in lawful possession and enjoyment of the said property. The defendant submits that by the Order of BBMP dated 29.11.2012 clubbed site No.357 and 358, bearing Katha No.700/4649/2617 measuring 105'+122'/2 x 65 feet of defendant No.1 with the adjoining property of defendant No.2 bearing katha No.701/4650/2618/359, measuring East to West: 70'+65'/2 feet and North to South: 57'+70'/2 feet and collected assessment and property tax to the joint extent of land. Therefore, it is submitted that the title deeds of defendant No.2 shows that, to the west of site No.359 boundary is small drain, while the plaint schedule site falls in Sy.No.7 of Nagadevanahalli. Therefore, the property of the defendants is altogether different than the property of the plaintiff. The Sale Deed of the defendants stands on a priority over the Sale Deed of the plaintiff. As Sale Deed of the plaintiff is of a recent time while Sale Deed of the defendants is beyond 21 years. In the Sale Deed of the plaintiff dated 11.11.2013, the eastern boundary of the property of the plaintiff site No.360/1 in Sy.No.7 as site No.360, whereas the property of defendant 7 O.S.No.7221/2014 No.2 is site No.359 falls in Sy.No.6, to its western boundary is shown as drain. The western boundary of the plaintiff's property is shown as drain. Therefore, the defendant submits that BDA after having inspection to the spot before issuing order of regularization to defendant No.2 in respect of site No.359. Therefore, the plaintiff's property is not in existence. Based on the clubbed katha the defendant has got approved plan for construction of flats and the set back on the western boundary is the drain. Beyond this drain there is no other site, which the plaintiff has unauthorisedly claimed that the plaint schedule property belongs to him. The plaintiff's property is in Sy.No.7 of Nagadevanahalli, while the defendant's property is in Sy.No.6 of Nagadevanahalli. As such, they are totally different properties and different survey numbers. Therefore, the plaintiff should have approach the original land owners represented by his GPA Holder to get the same rectified and not against these defendants. There is no cause of action to file the suit and sought for dismissal of the suit filed by the plaintiff against the defendants.
4. Basing on the above said pleadings the following issues are framed:-
8 O.S.No.7221/2014
ISSUES
1. Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference of the defendants?
3. Whether the plaintiff is entitled for the relief of permanent injunction?
4. What order or decree?
5. The plaintiff got himself examined as PW-1 and got marked Ex.P1 to P16 and closed his side. The defendant No.2 got himself examined as DW-1 and got marked Ex.D1 to D4.
6. After the closure of the evidence, heard the arguments.
7. My answers to the above issues are as follows:-
Issue No.1:- In the affirmative.
Issue No.2:- In the affirmative.
Issue No.3:- In the affirmative.
Issue No.4:- As per final order.
for the following:-
9 O.S.No.7221/2014
REASONS
8. Issue Nos.1 to 3:-
For the sake of convenience these issues are taken up together for discussion to avoid repetition of facts and evidence.
The pleaded case of the plaintiff in this case is that, he is the absolute owner in possession and enjoyment of the residential property bearing No.360/1, Katha No.7, situated at Jagajyothinagar, Nagadevanahalli, Kengeri Hobli, Bangalore. He had purchased the said property through the GPA Holder Mr.K.K.Byadagi of land owners - Mr.Doddaiah, Mr.Veeranna, Mr.Junjumaraiah and Mr.Allatappa, who is the Secretary of Jagajyothi Housing Co-operative Society Limited, through Registered Sale Deed dated 11.11.2013 for consideration. He has produced Ex.P1 - Sale Deed, through which he has purchased schedule property measuring East to West:10 feet and North to South: 65 feet in property No.360/1, Katha No.7, situated at Nagadevanahalli. Basing on the said Registered Sale Deed, his name was transferred in the katha as evidenced by Form-B Property Register issued by BBMP as per Ex.P2. PW-1 has stated that since the date of purchase he 10 O.S.No.7221/2014 has been in lawful possession and enjoyment of the suit schedule property by making payment of taxes to the BBMP. He has produced the tax paid receipts from the year 2008-09 to 2013-14 at once on 14.11.2013 as per Ex.P3 to P8 and again for the year 2014-15 he has paid tax on 22.04.2014. Ex.P10 is the nil encumbrance certificate, evidencing that no other transaction in favour of the suit schedule property is entered.
9. Therefore, the case of the plaintiff is that, he is in lawful possession and enjoyment of the suit schedule property as an absolute owner thereof. The defendants are owners of the adjacent sites, they started constructing apartment. The suit schedule property falls to western side to the property belongs to the defendants. The defendants without leaving any set back to the western side of their property as per law, they started put up the construction, dumping the building materials in the suit schedule property and violating the sanctioned plan as if showing suit schedule property as the set back area. Thus, they are making aerial encroachment also if continued to put up construction. When he has questioned, they threatened him of dire consequences and told him that 11 O.S.No.7221/2014 he should not inform the said fact to the BBMP. However, he has lodged a complaint before Joint Commissioner, BBMP, Rajarajeshwarinagar as per Ex.P15, complaining that showing that the suit schedule property belonged to the plaintiff i.e., a vacant site, as a set back left by the defendants they started construction of apartment and requested them to take suitable measures in this regard. Ex.P16 is the building sanctioned plan of site No.357, 358 and 359 obtained by the defendants.
10. In this case, the material objection that is raised in the pleadings and in the evidence of DW-1 that property No.360/1, Katha No.7 of Nagadevanahalli which is in Sy.No.7 and the properties belonged to the defendants site No.357, 358 and 359 are in Sy.No.6 of Nagadevanahalli. In the title deeds of the defendants as well as the Order passed by the BBMP at the time of regularizing the unauthorized construction of building after inspecting the spot, have shown western boundary of site No.359 as drain. Therefore, according to DW-1 in his evidence he has been in possession and enjoyment of the said property since the year 1993 upto western side drain and there is no property bearing site No.360/1 is in existence, eastern boundary of the plaint 12 O.S.No.7221/2014 property is shown as 360, whereas the property of DW-1 is site No.359. Therefore, it is altogether a different property. The plaintiff ought to have to approach the land owners to get rectified the same and the plaintiff has no cause of action to file the suit for bare injunction against the defendants and suit is liable to be dismissed.
11. Therefore, the evidence and pleadings of DW-1 goes to show that his claim is that, his property fall within Sy.No.6 of Nagadevanahalli and western boundary of site No.359 is showed as drain. Therefore, question of existence of suit property adjacent to site No.359 doesn't arise at all and by leaving appropriate set back in accordance to sanctioned plan they put up apartment structures and disputed the possession of the plaintiff. Therefore, heavy burden is on the plaintiff to prove his lawful possession over the suit schedule property and interference by the defendants to his enjoyment over the property.
12. The plaintiff's title deed dated 11.11.2013 executed by Mr.Doddaiah, Mr.Veeranna, Mr.Junjumaraiah and Mr.Allatappa through their GPA Holder - Mr.K.K.Byadagi, 13 O.S.No.7221/2014 Honarory Secretary, Jagajyothi Housing Co-operative Society Limited and he was inducted in possession. It is mentioned in the Sale Deed itself that the layout of the schedule property also approved by the Administrator and Secretary, Sulikere Group Panchayat, Bangalore South Taluk. The property of the plaintiff mentioned in the schedule of Ex.P1 is as follows:-
All the piece and parcel of House Property bearing Katha No.7, Property No.360/1, situated at Nagadevanahalli, Kengeri Hobli, Bengaluru South Taluk, measuring East to West: 10-0 feet and North to South: 65-0 feet, bounded on:
East by: Property No.360,
West by: Rain Water Drain,
North by: Site No.386/1 and
South by: 40 feet Road.
It is not in dispute that the suit schedule property is a vacant site as on the date of suit. The title deed of DW-1 i.e., certified copy of Sale Deed dated 29.04.1993 is produced at Ex.D1. The schedule of the property mentioned in the title deed of defendant No.2 is as follows:-
All that piece and parcel of House Property bearing V.P.Katha No.6, House List No.359, situated at Nagadevanahalli, Kengeri Hobli, Bangalore South Taluk, measuring East to West: 14 O.S.No.7221/2014 70'+62'/2 feet and North to South: 57'+70'/2 feet with 1 square AC Sheet Roofing House bounded on:
East by: Property No.358,
West by: Small Drain,
North by: Property No.387 and 386 and
South by: 40 feet Road.
13. In the cross-examination of PW-1, a specific suggestion made to PW-1 that western boundary of the property of DW-1 i.e., site No.359, there is a drainage, is denied by PW-1. He has deposed that now to the east of the suit schedule property, the apartment constructed by the defendants is situated. PW-1 has stated that he has given complaint to BBMP as per Ex.P15 that the defendants without leaving set back showing the suit schedule property as set back started erecting apartment building in violation of the building plan and to take suitable action against them.
Therefore, whether the eastern boundary of the plaint schedule property showed is 360, is right or wrong, is of little consequence. For the simple reason, the apartment that is constructed in site No.359 by the defendants itself is a property situated to the east of the suit schedule property, can 15 O.S.No.7221/2014 be gathered. It is not the allegation of the plaintiff that the defendants have put up structure encroaching portion of suit schedule property. He has specifically stated that the building was erected within the property belonged to the defendants, but as per the building plan they should have left some space as set back to the west of the construction, that is not left, which amounts to violation of building plan and also it is an apartment it is led to aerial encroachment over the suit schedule property.
14. Therefore, the main grievance of PW-1 against the defendants that without leaving the set back by stating that suit schedule property itself is the set back area left by them, covering the entire extent of their property, the defendants erected the apartment building in violation of approved sanctioned building plan produced at Ex.P16. That is what the plaintiff has complained before the Joint Commissioner, BBMP, Rajarajeshwarinagar, Bangalore, requesting them to effect spot inspection and without disturbing his possession and enjoyment over the suit schedule property, suitable measures be taken against the defendants. He has deposed that though he has lodged a complaint, no steps were taken. 16 O.S.No.7221/2014
15. Therefore, it is necessary to appreciate the evidence to trace out whether say of DW-1 that western boundary of their property in the title deed - Ex.D1 as drain and such drain is actually in existence to the west of the site No.359, was it a real and true existing fact. Because as per the Sale Deed of the plaintiff and the evidence of the plaintiff that between the drain and site No.359 there exist the suit schedule property.
16. Therefore, according to the evidence of PW-1 small water drain is in existence to the west of the suit schedule property and not as stated by the defendants. In the cross- examination of DW-1, we can make out that the sites No.357, 358, 359 are all the sites formed by Jagajyothi Housing Co- operative Society Limited at the said locality, is an admitted fact. DW-1 admits that the person who has executed Registered Sale Deed in favour of the plaintiff as well as the defendants was one Mr.K.K.Byadagi, Secretary of Jagajyothi Housing Co-operative Society Limited. Therefore, it is clear that the layout was formed by Jagajyothi Housing Co- operative Society Limited and on behalf of the original owners the Secretary of said Society one Mr.K.K.Byadagi had 17 O.S.No.7221/2014 executed Sale Deed in favour of defendants under Ex.D1 and the very same person had executed Registered Sale Deed in respect of suit schedule property in favour of the plaintiff under Ex.P1, can be gathered.
17. DW-1 admits that in the said layout formed by Jagajyothi Housing Co-operative Society Limited, layout was formed, is a big area, formed several sites and formerly, the said area was not within the jurisdiction of BBMP limits. Therefore, the original layout plan is not produced by the defendants. It is only Ex.D2 produced shows that site Nos.357 and 358 belonged to defendant No.1 and site No.359 belonged to defendant No.2, were clubbed together and the combined katha was issued at katha No.700/4649/2617/357, 358, 359 and the extent mentioned 187+175/2 x 57+65+70/2 feet fixing the assessment tax. The detailed pleading to this effect is found in the evidence of DW-1 as well as in the written statement. The possession of the defendants in respect of site Nos.357, 358 and 359 and they started erecting apartment by taking the clubbed katha and approved sanctioned plan, is not disputed by the plaintiff. We can gather from the evidence and circumstances that the 18 O.S.No.7221/2014 allegation of the plaintiff is that the defendants in violation of the building plan, without leaving set back, as if showing plaint schedule property as the set back left by them, started putting up structure of apartment and thereby, making aerial encroachment over the suit schedule property and when complained they threatened the plaintiff of dire consequences, was basis for the cause of action for the plaintiff to file the instant suit.
18. In the evidence of DW-1, he has produced the Katha Certificate issued in the name of defendants 1 and 2 jointly, pursuant to the order passed in Ex.D2 and Assessment Register Extract - Ex.D4 reveals the order passed by the Joint Commissioner under Ex.D2. Therefore, as per the evidence itself it goes to show that to the east of suit schedule property the property belonged to DW-1 site No.359 is situated, can very well be appreciated.
19. If we carefully go through the boundaries on the other 3 sides of plaint schedule property and property of the defendants, morefully particularly site No.359 i.e., eastern boundary of the plaintiff's property wherein they constructed 19 O.S.No.7221/2014 apartment, consisting other 2 properties 357 and 358. As per Ex.D1 the southern boundary in respect of site No.359 is 40 feet road, likewise the southern boundary to the plaint schedule property is also mentioned as 40 feet road. The northern boundary of plaint schedule property is site No.386/1, whereas for site No.359 belonged to DW-1 northern boundary is mentioned as property No.387 and 386 and eastern boundary as property No.358. Therefore, it is clear that to the east of site No.359 belonged to DW-1, the property which was clubbed to have a common assessment as per the Order - Ex.D2 and other records Ex.D3 and D4. The western boundary to Site No.359 is mentioned as small drain. But for the reasons recorded hereinabove, the immediate western side to the site No.359 there lies suit schedule property, can be gathered and only thereafter, rain water drain is shown.
20. In the cross-examination of DW-1, he admits that in Ex.P16 - sanctioned plan where exactly the site Nos.357 to 359 lies is mentioned. Further, admits that northern side of site Nos.357 to 359 it is mentioned as Site No.387 and 388 and to the south, road is shown. A clear admission given by him in the cross-examination that, to the west of their 20 O.S.No.7221/2014 property, there is no mention as drainage. What he wants to say that the boundary is showed as 359 itself is a mistake. However, he has admitted that he has not submitted any application to the authority to rectify the mistake. 28 apartments were constructed by him, so far, he has not sold because it is not yet completed. He admits that sanctioned plan - Ex.P16 is valid till 11.09.2015. However, he has stated that he has filed application to renew the same, not produced the said document or renewed sanctioned plan. According to his case, in site No.359 there exist a small house constructed unauthorisedly and subsequently he had applied to BDA to regularize the said house and by recovering Rs.80,000/- fine, BDA has regularize the said site No.359. In the evidence of DW-1, he states that at that time enquiry was held and eastern side boundary was showed as a drain. Merely because while showing the boundary to the western side of site No.359 boundary is mentioned as drain, doesn't mean that the site No.359 stretch upto the said drain and it is in possession of the defendants since 1993. Even it cannot be said that the layout plan prepared by the vendors and also Jagajyothi Housing Co-operative Society Limited, no such site 21 O.S.No.7221/2014 in between the drain and site No.359, another site is not available.
21. The learned counsel has confronted 2 photographs to DW-1 in the cross-examination - Ex.P11 to P13 along with CD. By looking to it, he has identified and admits that at the time of construction of the apartment, such photographs were taken and in the photos Ex.P11 and P12 the western side of construction of building, open space is seen and also admits that it is not seen the drainage in the said photographs to the west of building constructed. He has offered with an explanation that drainage was earlier existed, already filled up and plants were grown. He doesn't have any photographs to show that to the western side of building there exists a drainage. However, he deposed that he prepare to give evidence on it. Except his evidence and Ex.D1 to D4, he has not given any other evidence to show that western boundary of site No.359, there exist a drainage and he has constructed building leaving sufficient space as per the approved plan - Ex.P16 as a set back area. Here, by looking to the photographs - Ex.P11 to P12 witness admits that the plaintiff 22 O.S.No.7221/2014 is residing there by constructing a house in a site situated to the western side of site No.359. However, he has deposed by giving explanation that as he has brought injunction order from the court only thereafter he has allowed him to put up construction. He has not filed any separate suit seeking an order of injunction restraining him not to put any construction. That means, if really the evidence of DW-1 that as his Sale Deed is of 1993 and boundary of his site stretches upto to the drainage, merely because in this suit temporary injunction order was issued, is not a ground for him to allow the plaintiff to construct a building and reside therein. Therefore, one thing is clear that his defence taken that his boundary stretches upto the drain in respect of Site No.359, cannot be appreciated at all and there is a open space to the west of site No.359 and no drainage is there immediately next to site No.359 to its western side, can very well be gathered. No doubt, boundary prevails over the measurement. But here the explanation offered by him that drain was earlier existed which was filled up and plants were grown, cannot be appreciated, because the plaintiff has put up structure and resided therein to the west of site No.359 is admitted by him, 23 O.S.No.7221/2014 which shows that the western boundary what is mentioned in Ex.D1 and the regularization order passed by BDA, what he has deposed in his evidence, was certainly not the drain and there exist a open space, which is certainly the suit schedule property. The very same person Mr.K.K.Byadagi, Secretary of Jagajyothi Housing Co-operative Society Limited, had executed the Sale Deeds Ex.P1 as well Ex.D1, throw light on the fact that the defendants' contention cannot be appreciated.
22. DW-1 in the cross-examination has stated that he has already completed the construction of apartment building, only finishing work is left out and denied the suggestion that against the sanctioned plan without leaving set back area he had put up construction, violating the conditions of the sanctioned plan. Here, he admits that he has not moved any application for amendment of sanctioned plan. Therefore, quite obviously we can gather from the evidence of the defendants in the cross-examination that the western boundary of site No.359 is not drain, but in fact there exist a site which was in turn purchased by the plaintiff under Ex.P1 and only after the property of the plaintiff, there exist a drain 24 O.S.No.7221/2014 can very well be gathered. The possession of the plaintiff over the said site lies to the west of site No.359, can also be gathered by the admission of DW-1 in his cross-examination.
23. Here, PW-1 has put up construction in his property lying to the west of site No.359 is admitted by DW.1. He has not initiated any legal action against the vendor - Jagajyothi Housing Co-operative Society Limited. He has also admitted that he has not moved any application not to effect katha in respect of property wherein the plaintiff has put up construction. DW-1 in the cross admits that after the year 2008 the jurisdiction of BBMP was enhanced and they started issuing the katha. Here, what is suggested in the cross- examination of PW-1 by questioning on Ex.P2 that B-katha was issued and according to DW-1 A-katha is a permanent registration and for the purpose of construction A-katha is must and B-Katha is temporary number given for maintenance of tax, assessment etc. No sanctioned plan will be given to the sites of B-katha. Here, he wants to give that he has got preferential right as A-katha was given to his site. Prior to 2008, the sites belongs to the plaintiff as well as the defendants, lies beyond the jurisdiction of the BBMP and they 25 O.S.No.7221/2014 are within the jurisdiction of concerned CMC. Therefore, after it falls within the jurisdiction of the BBMP, notices were issued to furnish documents of title for reconciliation of property B- katha were being issued. The very admission given by DW-1 that wherever the relevant reconciled revenue documents were submitted by the CMC or parties concerned A-katha was issued by the BBMP. Therefore, one thing is clear that katha No.7 pertains to plaint schedule property and katha No.6 pertains to site No.359 belonged to DW-1 and what the defendant contends that the property of the plaintiff situated elsewhere as it is in Sy.No.7, whereas the property in which they put up construction comes under Sy.No.6 and the plaintiff has no right to file such suit cannot be appreciated. Here, on appreciation of the evidence of DW.1, we can gather that the immediate next site to the west of site No.359 belonged to the plaintiff and he is in possession and enjoyment of the same, already he had put up construction in the said site is admitted by DW-1 which indicate the fact that after purchase of the suit schedule property by the plaintiff under Ex.P1, it was transferred in his name by making payment of taxes to the BBMP, he has been in possession and 26 O.S.No.7221/2014 enjoyment of the suit schedule property, thus stands proved. As even after complaint was filed before the BBMP as per Ex.P15, the defendants have continued the construction work and BBMP did not take any action, which compelled the plaintiff to file the instant suit for injunction and get an exparte T.I. Order against the defendants. Therefore, the arguments canvassed by the learned counsel for the defendants that even without waiting for BBMP Commissioner to visit the spot and make enquiry, suit filed by the plaintiff is not maintainable, cannot be appreciated.
24. For the discussions made with reference to the boundaries of the plaint schedule property belongs to the plaintiff and site No.359 belonged to DW-1, Site No.357 and 358 belonged to defendant No.1. This court is able to trace out where exactly the site belongs to the plaintiff is situated and the western boundary contended by the defendant is the drain to his property i.e., site No.359 is not based on the true existing fact. At the time of execution of his Sale Deed in the year 1993 under Ex.D1, drain was shown vaguely as western boundary, which is situated after some open space available there. But that was not the boundary of site No.359, can be 27 O.S.No.7221/2014 gathered from the circumstances and the discussions made hereinabove.
25. Therefore, PW-1 has filed complaint before the Joint Commissioner, BBMP as per Ex.P15 making allegation that without leaving set back to the western side, the defendants have put up construction of apartment in violation of approved sanctioned plan - Ex.P16 and to take action. It is upto BBMP to deal with them in accordance to law, if there is any violation of sanctioned plan. But fact remains the same that once the plaintiff has established his possession over the suit schedule property, the allegations that the defendants without leaving any set back put up structure to the extreme edge of their property showing that plaint schedule property itself is the set back area, amounts to invasion over the right of the plaintiff over the suit schedule property and it is not only a threat of interference, but actual interference was made by them, can very well be gathered.
26. Here, though in the evidence of DW-1 and in the pleadings he denied the existence of the suit schedule property and their western boundary is drain in respect of site 28 O.S.No.7221/2014 No.359 is concerned and denied the identity of the property of the plaintiff, but evidence brought on record shows that suit schedule property lies to the west of site No.359, it is in possession of the plaintiff and he has put up construction there and in enjoyment of the same. Non-initiating the legal action against the plaintiff by the defendants and not producing any proof that further renewal application is submitted to renew the sanctioned plan or even questioning the katha of the plaintiff in respect of the suit schedule property, goes to show that the defendants are suppressing the material true facts before the court. They are taking advantage of the western boundary shown to site No.359 as a drain, to deny the identity of the property of the plaintiff. But, suit schedule property exists to the western side of site No.359 stands proved, which is in lawful possession and enjoyment of the plaintiff is also proved to the satisfaction of the court. Therefore, it is not the case the defendants have denied the title of the plaintiff over the suit schedule property. They are simply taking defence with regard to boundary and identity of the property. Therefore, in a suit filed by the 29 O.S.No.7221/2014 plaintiff for the relief of injunction simpliciter, the court need not harp upon to determine about the title of the plaintiff.
27. The learned counsel for the plaintiff has relied on a decision reported in ILR 2013 KAR 4983, in the case of Smt.Narasamma and others vs. D.S.Narasi Reddy and another, wherein the lordships have held that in a suit for permanent injunction, there is no need to frame any issue relating to title as issue of title will not be directly and substantially in issue though it may arise incidentally or collaterally except where the suit property is the vacant site or a vacant non-agricultural land. In respect of vacant sites or vacant non-agricultural lands, the principle is possession follows title. Therefore, the rightful owner will be deemed to be in possession of such property. Hence, in such cases, if a cloud is raised over the plaintiff's title, necessarily the court will have to examine and determine the title, to give a finding on the aspect of possession. However, if there is no bona fide denial of title, it is sufficient to examine the plaintiff's prima facie title in respect of such vacant site or land to record a finding on the aspect of possession. If a trespasser without 30 O.S.No.7221/2014 any claim to title, merely denies the plaintiff's title, it doesn't amount to raising a cloud over the title of the plaintiff.
28. Here, based on principles of decision of the Hon'ble Apex court in AIR 2008 SUPREME COURT 2033, in the case of Anathulla Sudhakar v. P.Buchi Reddy (Dead) by L.Rs. and Ors., wherein the lordships have ruled that to summarize the position in regard to suits for prohibitory injunction relating to immovable property, is as under: -
(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But 31 O.S.No.7221/2014 in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title 32 O.S.No.7221/2014 will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
By relying on the said principles the lordships of our own Hon'ble High Court in the above said decision have laid down principles need be followed while granting the relief of injunction. Here, the defence taken in the written statement and the evidence of DW-1, there is no denial of title. The defence is based on boundary and identity of the property of the plaintiff. Therefore, even under Section 38 of the Specific Relief Act, court can gone into the question of prima facie title for the reasons recorded hereinabove. The suit schedule property is identifiable, which is situated to the west of site No.359 belonged to DW-1. Therefore, the plaintiff has established that he is in lawful possession and enjoyment of 33 O.S.No.7221/2014 the same and already he has put up his construction in the said site. Therefore, the suit for the relief of injunction simpliciter is maintainable.
29. The other decision relied on by the learned counsel for the plaintiff reported in AIR 2004 SUPREME COURT 4609, in the case of Ramegowda (D) by L.Rs. v.
M.Varadappa Naidu (D) by L.Rs. and another, wherein the lordships have ruled that person in settled possession can maintain a suit for injunction to protect his possession against illegal dispossession. Their lordships have laid the working rule for determining the attributes of settled possession;
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period:
(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter be decide on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and 34 O.S.No.7221/2014 final and must be acquiesced to by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop has been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession. Therefore, when title of either party was not prove and plaintiff was found to be in settled possession he would be entitled to relief of injunction restraining the defendant from interfering with his possession.
30. The learned counsel for the plaintiff has relied on a decision reported in 2010(6) CTC 279, in the case of S.K.Balaguru Pandian v. S.K.Murugesa Nadar and R.Kumaravel, wherein also the lordships have held as under:-
Suit for bare injunction - Plaintiff has to prove prima facie title and possession on date of Suit - Whether plaintiff has a right for lawful possession, is a question of fact - It is open to Court to go into question of title incidentally in a suit for injunction simplicitor.35 O.S.No.7221/2014
31. Therefore, in the present suit, by applying the above said principles laid down in the decision, we can say that the plaintiff has proved his lawful possession and enjoyment over the suit schedule property as on the date of suit and considering his prima facie possession this court has granted exparte temporary injunction order and it is still in force. Even the defendant has not insisted for vacating the said exparte T.I. order granted against him. The plaintiff has complained before the Joint Commissioner, BBMP, Rajarajeshwari Division, Bangalore, making allegation that without leaving the set back as per the building sanctioned plan - Ex.P16 DW-1 has put up the construction of apartment and requested to initiate action against them. He has not claimed that they should not construct their apartment, but his request is that they should adhere to the conditions of the sanctioned plan and construct the building in their site leaving set back. Therefore, the question of construction of building till the edge of their site No.359 and asserting that the open space available to the west of the building constructed stretching upto the drain belonged to them, is nothing but invasion over the right of the plaintiff and interference in the 36 O.S.No.7221/2014 peaceful possession and enjoyment of the suit schedule property by the plaintiff. Therefore, the plaintiff is entitled to protect his lawful possession over the suit schedule property with the aid of the permanent prohibitory injunction from illegal dispossession. It is needless to say that there is not only a threat of interference, but actual interference to the enjoyment of the plaintiff over the suit schedule property by the defendants, thus stands proved to the satisfaction of the court. Admission given by DW-1 in the cross-examination reveals that suit property is in possession of the plaintiff. Therefore, if the defendants put up structure violating the sanctioned building plan, without leaving set back, concerned authorities as per rules and law are expected to take action and the defendants cannot lay their claim over the suit schedule property situated to the west of site No.359, by stating that as if that open space is left by them towards set back. No such right is available for them. They should restrict their claim in respect of site No.359 only and not allowed to stretch their hands in any portion of the suit schedule property. Therefore, the apprehension of the plaintiff that even though they put structure in site No.359, but as it was 37 O.S.No.7221/2014 constructed without leaving set back as per the sanctioned plan, it is in the nature of encroaching aerial space of suit schedule property also. Therefore, the plaintiff has a right to object such acts of the defendants and certainly, the plaintiff had a cause of action to file the suit for the relief of injunction as it is an equitable relief, a possessory remedy is available for him to protect his possession over the suit schedule property. As such ,it is held that the plaintiff has proved Issue Nos.1 and 2 and he is entitled to get the relief of permanent prohibitory injunction against the defendants. Accordingly, I answer Issue No.1 to 3 in the affirmative.
32. Issue No.4:- For the forgoing reasons, I proceed to pass the following:-
ORDER Suit filed by the plaintiff against the defendants is hereby decreed with costs.
The defendants, their agents, anybody claiming through them, are hereby restrained from interfering with peaceful possession and enjoyment of the suit schedule property by the plaintiff encroaching on the eastern side of the suit schedule 38 O.S.No.7221/2014 property in any manner or dumping building materials over the suit schedule property by way of permanent prohibitory injunction.
Draw a decree accordingly.
(Dictated to the Judgment Writer on computer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 26th day of September 2016) (BAILUR SHANKAR RAMA) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE I. List of witnesses examined on behalf of:
(a) Plaintiff's side:
PW.1 - Sri.Nagaraju
(b) Defendants' side:
DW.1 - Dr.Ashok II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 : Certified copy of Sale Deed dated
11.11.2013
Ex.P2 : Form-B property Register Extract
Ex.P3 to 9 : Tax Paid Receipts
39 O.S.No.7221/2014
Ex.P10 : Encumbrance Certificate
Ex.P11 to 14 : 3 Photos along with CD
Ex.P15 : Complaint to BBMP
Ex.P16 : Building Sanctioned Plan
(b) Defendants' side:
Ex.D1 : Certified copy of Sale Deed
dated 29.04.1993
Ex.D2 : Orders issued by Assistant
Revenue Officer, BBMP
Ex.D3 : Katha Certificate
Ex.D4 : Assessment Register Extract
42nd ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU.
40 O.S.No.7221/2014
(Judgement pronounced in the open
Court and order portion of the same is
extracted as under)
ORDER
Suit filed by the plaintiff against
the defendants is hereby decreed with
costs.
41 O.S.No.7221/2014
The defendants, their agents, anybody
claiming through them, are hereby
restrained from interfering with peaceful possession and enjoyment of the suit schedule property by the plaintiff encroaching on the eastern side of the suit schedule property in any manner or dumping building materials over the suit schedule property by way of permanent prohibitory injunction.
Draw a decree accordingly.
(BAILUR SHANKAR RAMA) 42nd Addl.CC& SJ, Bangalore.