IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO REGULAR FIRST APPEAL No.396/2006 BETWEEN:
Shri. M.H.Vasudeva, Son of late M.S.Hanumanthasa, Aged about 56 years, No.3, 5th Cross, A.M.Lane, Bengaluru – 560 053.
(By Sri. S.R.Deshpande, Advocate) AND:
The Commissioner, Bangalore Mahanagara Palike, N.R.Square, Bengaluru – 560 002.
(By Smt. Sumangala, Advocate for Sri. I.G.Gachchinamath, Advocate) …Appellant …Respondent This Regular First Appeal is filed under Section 96 of CPC against the Judgment and decree dated 21.11.2005 passed in O.S.No.5780/2000 on the file of the XXVII Additional City Civil Judge, Bangalore, dismissing the suit for permanent and mandatory injunction.
This Regular First Appeal coming on for Orders, this day, the Court delivered the following:
JUDGMENT The appeal is directed against the judgment and decree dated 21.11.2005 passed by the learned XXVII Additional City Civil Judge, Bengaluru in O.S.No.5780/2000, wherein suit for permanent injunction came to be dismissed against which the plaintiff has come in appeal.
2. In order to avoid confusion and overlapping, the parties are addressed in accordance with their ranking and status as held in the trial Court.
3. The brief facts of the case of the plaintiff in O.S.No.5780/2000 are that the plaintiff is the owner of property bearing No.14/15/1 measuring East to West 24 feet, North to South : 30 feet, 6th Cross, Bhuvaneshwaringar, Mariyappanapalya morefully described in the plaint schedule property having purchased the same under the registered sale deed dated 03.05.1989 from Smt.Byamma W/o Govindappa.
4. Plaintiff claims to be in possession and enjoyment of the suit property and his name is entered in the assessment register. He is stated to have filed suit in O.S.No.5121/1995 and the same was pending. During August, 2000 defendant without any right, title or interest over the suit property dug a trench in the middle of the property to form drain and without acquiring the suit schedule property.
5. The plaintiff further claims that defendant does not have right, title, interest or possession over the schedule property. The plaintiff was not notified about the intention of the defendant to form the drain in the suit property. This act of defendant according to the plaintiff is violent and apprehensive it requires to be prevented.
6. The learned Judge dismissed the suit irrespective of the fact that the plaintiff has examined himself as PW1 and documents Exs.P1 to P8 were filed in support of his case. It is seen that the defendant – Commissioner, BBMP has entered appearance but neither filed written statement nor adduced evidence. The suit was dismissed which is challenged by the plaintiff in this appeal.
7. The learned counsel Sri.S.R.Deshpande for the appellant would submit that the judgment is not justifiable for the very reason that the documents filed by the plaintiff were not appreciated. The learned counsel brings to my notice that an application is filed under Order 41 Rule 27 of CPC along with five documents. Considering the nature of the appeal and ends of natural justice and to peruse the said documents allowing of the application may be necessary. Hence, I.A.No.1/2019 is allowed. The documents are taken on record and perused the same. In the circumstances, it appears to be just and proper to allow the application. By allowing the application, the documents are perused. In so far as document No.1 which is property register extract in which measurement of the property is not mentioned. Insofar as document No.2 is Form No.9, issued by ADLR, City Survey. It is stated to have been issued in the name of one M.H.Vasudev and total measurement is stated as 66.4 metres. Document No.3 is Property card issued by Survey Department, Document No.4 is Enquiry register extract, Document No.5 is Field Book wherein measurement is shown as 66.4 metres, Document Nos.6 and 7 are Sketch of the property.
8. Smt.Sumangala, learned counsel for respondent submits that the plaintiff neither owns nor possess the schedule property. She would further submit that though the defendant has not filed written statement nor entered appearance, a plain reading of the plaint itself establishes the rightlessness of the plaintiff.
9. I have perused the judgment, the vendor of the plaintiff earlier claimed total property measures 30 x 30 yards and thereafter, a portion of the property is stated to be road and drain and remaining portion of property measuring 37 feet x 77 feet was sold by Smt.Byamma to Sri.Venkataswamappa on 13.03.1979 and that out of the remaining portion the suit property was sold to the plaintiff.
10. After having sold the land measuring 37 feet x 77 feet, the very fact that the property measuring 24 feet x 30 feet was not at all in existence in the name of the plaintiff and there was no possibility. The learned Judge also observes that the property was sold by vendor of the plaintiff apart from that also sold the property in favour of Sri.Venkataswamappa. On combining both the measurement, the total measurement as existed in favour of the defendant exceeds what was sold. Thus, the measurement of 24 feet x 30 feet is claimed by the plaintiff. The learned Judge also observed that the admission in cross- examination by PW1 as under:
The site purchased by me from Smt. Byamma under Ex.P1 is not revenue site. I do not know whether the said site was approved by any competent authority. Suit site belonged to the husband of my vendor. It is true that title suit in respect of suit property is pending on the file of CCH.13. It is true that the said suit was filed by me against Sri. Gurunath. Sri. Gurunath has filed his written statement in that suit. I do not know that he has contended in his written statement that suit site belongs to him. I do not know all the contents of written statement filed by Sri. Gurunath.
I have produced documents to show my possession over the suit property as on the date of suit. Suit site is bounded:
On the East: Property of Sri. Mallaiah On the West: Road, On the North: Property of Sri. G. Kashinath and On the South: Private Property.
I have not produced khatha certificate in respect of suit site issued by Corporation. I did not file petition to the Corporation alleging that excavation was made in my site. I do not remember the date on which interference was caused by the defendant. Witness says that interference was probably in the month of June 2000 and that he does not remember the date. Some workers were excavating the earth in the suit site. I do not know their identity. Now, there is drain and road in the suit site. It is true that the said drain and the road are in the possession of the defendant. It is false to say that by concocting documents I have filed this false suit in respect of corporation property. It is false to say that I have no right over the suit property.
11. Thus 30 x 30 yards of total property which belonged to the vendor of the plaintiffm a portion of the area came to be covered for road and also the remaining area of 37 feet x 77 feet was sold by Smt.Byamma to Sri.Venkataswamappa. Thus, no property was available for plaintiff to purchase.
12. Thus the plaintiff appears to be aware of the existence of defendant’s property. Further, it is also necessary to mention that the defendant is not a private individual and is not claiming personal property. The defendant is a local body who is the custodian of maintaining the property for the benefit of public of the area who has the duty to maintain road and to prevent trespass as well. In the light of serious contest regarding the ownership and possession against the plaintiff by the defendant BBMP mere suit for permanent injunction is totally insufficient and not a complete one. Further, the documents produced by the plaintiff does not reflect the total measurement as claimed by Byamma. Thus, if the documents and oral evidence without the written statement and evidence of the defendant, I find the plaintiff has failed to establish his right over the property or possession.
13. The learned Judge is right in dismissing the suit and rightly the learned Judge has observed that another suit of the plaintiff in O.S.No.5121/1995 is pending.
14. The plaintiff was duty bound to explain the nature of the suit and purpose of filing a separate suit. The learned counsel for the plaintiff submits that the present suit is prior and further suit is earlier.
For the foregoing reasons, the appeal is dismissed.
Sd/- JUDGE UN