V.Thilakavathy vs V.Srinivas
2021 Latest Caselaw 7141 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF DECEMBER, 2021

                              BEFORE

     THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                    R.F.A.No.170 OF 2020

BETWEEN:

V. Thilakavathy,
Aged about 57 years
R/at No.287, Sanjeevini,
Guruva Reddy Layout,
A. Narayanapura,
Doorvani nagar Post,
Bengaluru - 560 016.
                                                ...Appellant
(By Sri. D. Venugopal, Advocate)

AND:

1.     V. Srinivas,
       Major, R/at B. Narayanapura,
       K.R. Puram Hobli,
       Bengaluru South Taluk, 560 016
       And working as Driver KSRTC.,
       B. No.6989, BNG IV Depot,
       Subash Nagar,
       Bengaluru - 560 009.

2.     The Commissioner,
       BBMP, Mahadevapura,
       Bengaluru - 560 048.
                                                ...Respondents
(By Smt. Archana K.M., Amicus Curiae for R-1;
Sri. Ashwin S. Halady, Advocate for R-2)

                               ****
                                                R.F.A.No.170/2020

                                2



     This R.F.A. is filed under Section 96 of the Code of Civil
Procedure, 1908, praying to call for the records in
O.S.No.6926/2007 on the file of the LXVI Additional City Civil
and Sessions Judge, Bengaluru City (CCH No.67); set aside the
judgment and Decree dated 12-12-2019 passed therein; decree
the said suit of the appellant as prayed for with costs
throughout, in the ends of justice and equity.

      This R.F.A. having been heard through Physical
Hearing/Video   Conferencing      Hearing and reserved on
15-12-2021, coming on for pronouncement of judgment this
day, the Court delivered the following:

                      JUDGMENT

This is a plaintiff's appeal. The plaintiff, being aggrieved by

the judgment and decree dated 12-12-2019, passed by the

learned LXVI Additional City Civil and Sessions Judge, Bengaluru

City (CCH-67) (hereinafter for brevity referred to as "the Trial

Court") in O.S.No.6926/2007, wherein her suit for the relief of

mandatory injunction against the present respondents who were

arraigned as defendants in the said suit came to be dismissed,

has preferred the present appeal.

2. The summary of the case of the plaintiff in the Trial

Court was that, she is the owner in possession and enjoyment of

the property bearing Nos.9 and 10 with House list No.287, R.F.A.No.170/2020

situated at 'B' Narayanapura Village, K.R. Puram Hobli,

Bangalore South Taluk, measuring East to West: 60 ft., North to

South-Eastern side: 35 ft. and on the Western side: 28 ft. and

on the Southern side: 60 ft., which property has now come

within the limits of Bruhat Bengaluru Mahanagara Palike

(hereinafter for brevity referred to as "the BBMP"),

Mahadevapura, Bangalore. The said property is described as the

suit schedule 'A' property. She has purchased the said property

from one Smt. Vedamani, under a registered Deed of Sale dated

14-02-1992. Since then, she has been in possession and

enjoyment of the suit property. The revenue records including

khatha have been made in her name and she has been paying

the taxes.

It is further the plaint averment that, on the Dt.

12-08-2007, the defendant No.1 illegally interfered with the suit

schedule 'A' property in the Western side and encroached about

10 ft. and put up the structure with the help of his henchmen,

which description of the portion of the property that was

encroached by the defendant No.1 is mentioned in the plaint as

suit schedule 'B' property. The structure raised by the defendant R.F.A.No.170/2020

No.1 in the passage is about 10 ft., which was being used by the

plaintiff to approach a WELL located nearby on the Western side

of the suit schedule 'A' property and belonging to the plaintiff.

The defendant No.1 blocked the way leading to the WELL and

caused great hardship, irreparable loss and injury to the plaintiff.

It is also contended by the plaintiff in the plaint that, she

found out from the defendant No.2 - BBMP, that the defendant

No.1 had not obtained necessary permission or licence or

approved plan, etc., to construct the structure and that he had

taken up the said construction work illegally. It is further alleged

that the defendant No.1 is further making attempt to encroach

some of the remaining portion on the Western side of the suit

schedule 'A' property. With this, the plaintiff prayed for the relief

of mandatory injunction, directing the defendant No.1 to

demolish the structure put up by him and to deliver the

possession of the suit schedule 'B' property after demolition of

the structure, to the plaintiff. She also prayed for the relief of

mandatory injunction, seeking a direction to the defendant No.1

to leave a set back of 3 ft. on the Western side of the suit

schedule 'A' property and a direction to defendant No.1 to leave R.F.A.No.170/2020

passage of about 10 ft. on the Western side of the suit schedule

'A' property to go to the WELL for fetching the water. She also

sought for a direction for defendant No.2 - BBMP, to initiate

necessary action against the defendant No.1 for the alleged

illegal construction of the structure said to have been put up by

him.

During the pendency of the suit, the plaintiff got amended

the plaint and added an averment to the effect that, the

structure put up by the defendant No.1 in the suit schedule 'B'

property and also adjacent to schedule 'A' property, is illegal and

opposed to law and without any right, title or interest. She also

sought for one more relief seeking declaration that, the

structure put up by the defendant No.1 in the suit schedule 'B'

property is illegal and opposed to law and against the principles

of nature justice and equity.

3. In response to the suit summons served upon them,

both the defendants appeared through their learned counsels

and filed their respective Written Statements, wherein they have

denied the plaint averments.

R.F.A.No.170/2020

4. The defendant No.1, in his Written Statement

contended that, the passage of 10 feet and the WELL belongs to

his father Sri.Venkataramanappa, which property was purchased

on the date 17-06-1992 from one Sri. Guruva Reddy and

Smt. Achamma and since then, the defendant No.1 has been in

possession of the property. The defendant No.1 contended that,

the property purchased by him was bearing Sy.No.143 situated

at B.Narayanapura, measuring East to West : 40 & 47 and North

to South: 28 & 10 and bounded on the East by Site No.10

and West by WELL, North by 20 ft. Road, South by vendor's

property. He contended that, apart from the same, he has got

one more property in Survey No.64/1, House list No.157, B.

Narayanapura Village, K.R. Pura Hobli, Bangalore South Taluk.

The first defendant totally denied the plaint averment of the

alleged encroachment in the suit schedule 'B' property by him, in

any manner.

5. The defendant No.2- BBMP, in its Written Statement

denied each of the plaint averments, stating those averments as

false and frivolous. It further contended that the suit schedule R.F.A.No.170/2020

'A' property said to have been purchased by the plaintiff from

one Smt. Vedamani was not approved by any competent

authority. The said property comes under the jurisdiction of un-

authorised revenue layouts. Hence the plaintiff does not possess

any valid right, title or interest over the suit schedule 'A'

property. It also contended that the plaintiff is not paying any

property tax, either to BBMP or to the City Municipal Council,

Mahadevapura, at any point of time. It also contended that,

though the plaintiff contends that she has paid the property tax

to B. Narayanapura Grama Panchayat, but the said Panchayat

has ceased to function from December-1995. It specifically

denied that it has received any complaint from the plaintiff

regarding the alleged illegal construction said to have been made

by the defendant No.1. It also stated that after inspection of the

spot, it was found that, no new constructions were made on the

date 12-08-2007 or subsequent to it.

6. Based on the pleadings of the parties, the following

issues were framed by the Trial Court:

"1. Whether the plaintiff proves that the structure put up by 1st defendant in B schedule property is illegal?

R.F.A.No.170/2020

2. Whether the plaintiff is entitled for possession of B schedule property?

3. Whether the plaintiff proves that the defendant No.1 is liable to leave the set back on the western side of A schedule property?

4. Whether the plaintiff is entitled for 10 feet passage on the western side of A schedule property so as to reach the WELL?

5. To What decree or order?"

In order to prove her case, the plaintiff got examined

herself as PW-1 and got marked documents from Exs.P-1 to

P-13. On behalf of the defendants, the defendant No.1 got

himself examined as DW-1 and got marked documents from

Exs.D-1 to D-38.

7. After hearing both side, the Trial Court in its judgment

and decree dated 12-12-2019, while answering issues No.1 to 4

in the negative, proceeded to dismiss the suit of the plaintiff.

Aggrieved by the same, the plaintiff has preferred the present

appeal.

R.F.A.No.170/2020

8. The Trial Court records were called for and the same are

placed before this Court.

9. In view of the fact that the learned counsel for the

respondent No.1 failed to appear before this Court on several

dates of hearing, in the interest of justice, this Court by its order

dated 11-11-2021, appointed learned counsel - Smt. Archana

K.M., as Amicus Curiae for the defendant No.1/respondent No.1,

to defend his case.

10. Heard the arguments of the learned counsel for the

plaintiff/appellant herein, learned Amicus Curiae for the

defendant No.1/respondent No.1 herein and learned counsel for

the defendant No.2/respondent - 2 - BBMP.

11. Perused the material placed before this Court including

the impugned judgment, memorandum of regular first appeal

and the Trial Court records.

12. For the sake of convenience, the parties herein would

be henceforth referred to as per their rankings before the Trial

Court.

R.F.A.No.170/2020

13. After hearing the learned counsel for the parties, the

points that arise for my consideration in this appeal are :

1. Whether the plaintiff has proved that the defendant No.1 has put up an illegal construction in the suit schedule 'B' property by taking un-authorised and illegal possession of the same from the plaintiff?

2. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed?

3. Whether the plaintiff is entitled for the relief of possession of the suit schedule 'B' property from the defendant No.1?

4. Whether the plaintiff is entitled for the relief of mandatory injunction with a direction to the defendant No.1 to leave the set back of 3 ft. and 10 ft. on the Western side of the suit schedule 'A' property as prayed in the plaint?

5. Whether the judgment and decree under appeal warrants any interference at the hands of this Court?

14. A perusal of the Trial Court records would go to show

that, earlier, the defendants neither cross-examined the plaintiff

witness (PW-1) nor led any evidence from their side. As such,

after hearing both side, the Trial Court pronounced the judgment R.F.A.No.170/2020

on 09-03-2012, decreeing the suit of the plaintiff. Aggrieved by

the same, the first defendant preferred an appeal before this

Court in R.F.A.No.1253/2012 and the same came to be allowed

and the matter was remitted back with a direction to reconsider

the suit from the stage of cross-examination of PW-1, after

giving opportunity to the parties to lead their evidence. It was

thereafter, giving an opportunity to both side and recording the

further evidence led by the plaintiff as also the defendants

respectively and hearing both side, the Trial Court passed the

impugned judgment, dismissing the suit of the plaintiff, which is

challenged in the present appeal.

15. The plaintiff got herself examined as PW-1, who, in

her examination-in-chief, in the form of affidavit evidence, has

reiterated the contentions taken up by her in her plaint.

In support of her contention, she got produced a certified

copy of the Sale Deed standing in her name as Ex.P-1; a tax paid

receipt at Ex.P-2, an extract of the Tax Demand Register at

Ex.P-3; Encumbrance Certificate at Ex.P-4; Certificate said to

have been issued by the B. Narayanapura Village Panchayat, R.F.A.No.170/2020

Bangalore District, at Ex.P-5; two more tax paid receipts at

Exs.P-6 and P-7; a certified copy of the charge sheet at Ex.P-8;

a certified copy of the First Information Report (FIR) in Crime

No.857/2013, on the file of the Mahadevapura Police Station at

Ex.P-9; a certified copy of the spot mahazar at Ex.P-10; a

certified copy of the further statement of the complainant

(plaintiff) at Ex.P-11; a certified copy of the statement of one

Sri.Dinesh Kumar and one Sri. Venugopal, said to be the

witnesses in a Criminal Case in the criminal complaint, at

Exs.P-12 and P-13 respectively.

PW-1 (plaintiff) was subjected to a detailed cross-

examination from the defendants' side.

16. Defendant No.1 got himself examined as DW-1, who

also, in his examination-in-chief, in the form of affidavit

evidence, has reiterated the contentions taken up by him in his

Written Statement. He got marked documents, such as Gift

Deed dated 22-11-1999 at Ex.D-1; registered General Power of

Attorney (GPA) dated 12-02-1982 at Ex.D-2; copy of the Record

Book maintained by the Revenue Department (BBMP) showing R.F.A.No.170/2020

the houses and vacant sites, for the year 2008-09 as Ex.D-3;

Encumbrance Certificate in Form-15 at Ex.D-4; khatha said to

have been issued by Mahadevapura Municipal Council at Ex.D-6;

Encumbrance Certificate said to have been issued by the Sub-

Registrar, Mahadevapura, Bengaluru, at Ex.D-7;

acknowledgment (tax receipt) said to have been issued by the

Mahadevapura zone of BBMP at Ex.D-8; Certificate of Residence

at Ex.D-9; Encumbrance Certificates of few years from Exs.D-10

to D-16; blue print of the building plan at Ex.D-17; certified copy

of a Sale Deed dated 17-08-1964 at Ex.D-18; two Sale Deeds

dated 20-12-1974 and 10-02-1975 at Exs.D-19 and D-20

respectively; five receipts from Exs.D-21 to D-25; four

photographs from Exs.D-26 to D-29; a Compact Disc (CD) at

Ex.D-29(a); Encumbrance Certificate at Ex.D-30 and few more

tax paid receipts from Exs.D-31 to D-38.

The witness (DW-1) was subjected to cross-examination

from the plaintiff's side.

17. Defendant No.2 - BBMP did not lead any evidence from

its side.

R.F.A.No.170/2020

18. In the light of the above, the argument of the learned

counsel for the plaintiff/appellant herein was that, the pleading

and evidence of the defendant No.1 (DW-1) are at variance

about the alleged Gift Deed and Sale Deed. He submitted that

the defendant No.1 has not stated as to how his father had

acquired the property in question. The criminal case filed by the

plaintiff against the defendant No.1 is still pending. With this, he

submitted that the Trial Court, since has not considered this

aspect, the impugned judgment deserves to be set aside and the

suit of the plaintiff deserves to be decreed.

19. Learned Amicus Curiae for the defendant

No.1/respondent No.1 herein, in her argument, submitted that

the suit schedule 'A' property has not been properly described by

the plaintiff nor she has produced the sanctioned plan of the

layout to show that, the plaintiff had any property in the said

Layout. She further submitted that the relief of declaration and

possession ought to have been sought for by the plaintiff since

the defendant No.1 has disputed the ownership of the plaintiff R.F.A.No.170/2020

over the suit schedule 'B' property, as such, the suit of the

plaintiff seeking the relief of bare injunction is not maintainable.

On this point, learned Amicus Curiae for the defendant

No.1 relied upon few reported judgments, which would be

referred to at the relevant stage herein afterwards.

The learned Amicus Curiae for the defendant

No.1/respondent No.1 herein also contended that there is no

proof to show that the defendant No.1 has encroached the suit

schedule 'B' property. Even according to the plaintiff, the alleged

encroachment came to her notice only after measurement of the

site, which statement falsifies her contention that, the defendant

No.1 had put up the alleged illegal construction over-night.

20. Learned counsel for the defendant No.2/respondent

No.2 - BBMP herein, in his very brief argument submitted that, a

Commissioner for local inspection was appointed by the Court

and after local inspection, the Commissioner has not reported

any encroachment or illegal construction. He has also given his

report stating that there is no WELL located in or near to the suit

schedule property. As such, the impugned judgment and decree R.F.A.No.170/2020

passed by the Trial Court does not warrant any interference at

the hands of this Court.

21. The plaintiff has produced the certified copy of the

Sale Deed standing in her favour at Ex.P-1 and contended that

there existed a WELL on the Western side of the property and it

belongs to her. No doubt the schedule of the property as shown

in Ex.P-1 on its Western side shows the boundary as the WELL

belonging to the purchaser. Even if it is assumed that there

existed a WELL on the Western side of the property purchased by

the plaintiff, still, the Sale Deed at Ex.P-1 does not convey the

WELL to the plaintiff, on the other hand, it only refers to the said

WELL as a Western boundary to the property which are alleged

to be Site Nos.9 and 10 and shown to have been conveyed to the

plaintiff. Therefore, relying upon the Sale Deed at Ex.P-1, it

cannot be held that the alleged WELL on the Western side of the

suit schedule 'A' property was also sold to the plaintiff under

Ex.P-1. At the same time, when according to the plaintiff, the

site was measuring from North to South on the Western side by

28 ft. in length, a doubt arises as to, whether the WELL on the R.F.A.No.170/2020

said Western side alone was the boundary for the entire alleged

length of the plaintiff's property of 28 ft. If, apart from the

WELL, any open space belonging to any one was situated, then,

it was expected of mentioning the same in the Sale Deed at

Ex.P-1. Furthermore, according to the plaintiff, the first

defendant has blocked the passage leading from her property to

the WELL. If that were to be the case, the WELL cannot be said

to have been located abutting to the plaintiff's property on its

Western side, but there ought to be some distance between the

plaintiff's property and the WELL. The Rough sketch produced by

the plaintiff along with the plaint also shows a considerable

distance between the Western boundary of the plaintiff's

property to the WELL. Admittedly, the defendant No.1 is not a

party to the Sale Deed at Ex.P-1. Therefore, merely because it is

mentioned in the Sale Deed at Ex.P-1, while describing the

boundary of the properties sold to the plaintiff that, West is

bounded by a WELL belonging to the purchaser, by that itself, it

cannot be concluded that the alleged WELL is the property of the

plaintiff.

R.F.A.No.170/2020

22. It is not the case of the plaintiff that the site alleged to

have been purchased by her which is the suit schedule 'A'

property was either formed by the Bangalore Development

Authority (BDA) or any other House Building Co-operative

Society. As stated by her in her cross-examination as PW-1, it

was purely a revenue site and that there was no approved plan

with respect to those sites. In such a situation, admittedly,

when there is no approved plan with respect to the suit schedule

'A' property said to have been purchased by the plaintiff, merely

because the Sale Deed is shown to have mentioned certain

dimension of the properties sold and the accuracy of which

dimensions has been seriously disputed by the defendant No.1

as the owner of the adjacent property, it is hard to accept that,

the plaintiff was actually put in possession of the entire property

to its exact measurement as shown in the Sale Deed at Ex.P-1.

This inference is arrived at for the reason that, a Court

Commissioner was appointed for the local inspection in this case.

The said Court Commissioner, who was Survey Supervisor in the

Property Section of the BBMP, has, in his report, stated that

there exists no passage and also no WELL. Since the objection R.F.A.No.170/2020

was filed to the Commissioner's Report, the said Commissioner

was examined as CW-1, who, in his evidence, has stood by the

contents of his Report and specifically stated that, he did not

observe any passage in the suit schedule property at the time of

measuring and also has not seen any WELL in the said schedule

property.

The Commissioner's report that there was no WELL as on

the date of his local inspection cannot be construed as though

there was no WELL in the vicinity of the property of the plaintiff.

It is for the reason that, even according to the plaintiff, as

observed above, on the Western side of her property, there was

a WELL. Even the defendant No.1 as DW-1 also has stated in his

evidence about the existence of a WELL and has stated that,

there existed a WELL and that he got it filled and closed. He

also stated that they had purchased the said WELL and

specifically denied that he has caused obstruction for the

movement of the plaintiff from her house to the WELL through

an alleged passage. Therefore, the Commissioner's Report also

would not support the case of the plaintiff that, there is a WELL

on the Western boundary to her property and that the said WELL R.F.A.No.170/2020

was belonging to her and that the defendant No.1, has, by

putting up his construction, obstructed the alleged passage to

the said WELL from her property.

23. The plaintiff, apart from producing the certified copy of

the Sale Deed at Ex.P-1 has also produced tax paid receipts and

Encumbrance Certificate, however, as observed above, those

documents would not enure to her benefit in proving the alleged

encroachment of her alleged portion of the suit schedule 'B'

property by the defendant No.1. Even though the documents at

Exs.P-8 to P-13 would go to show that, she has also filed a

criminal case against the defendant No.1, however, the alleged

statements of some of the charge sheet witnesses cannot be

accepted as a proven fact, unless those witnesses are subjected

to trial in a competent Court of law and in a process known to

law. As such, merely by going through the alleged statements of

one Sri. Dinesh Kumar and one Sri. Venugopal before the Police

Officer in a Criminal case, the copies of which are at Exs.P-12

and P-13 respectively, by that itself, it cannot be concluded that, R.F.A.No.170/2020

the defendant No.1 has encroached the suit schedule 'B'

property.

24. Learned counsel for the plaintiff/appellant herein in his

argument submitted that, the pleading and evidence of

defendant No.1 are different and they are at variance, as such,

the evidence of the defendant No.1 cannot be believed.

Stating so, the learned counsel for the plaintiff/appellant

relied upon a judgment of the co-ordinate bench of this Court in

R.S.A.No.725/2005 (DEC-INJ) between Mallappa, since dead by

his LRs. Smt. Basawwa and others Vs. Mallappa, S/o.

Kalakappa Kumbar, wherein at paragraph 7 of its judgment, it

was observed that, any amount of evidence without pleading

has no value. It is a settled principle that any amount of

evidence led without there being the basis of pleading would

have no value.

In the instant case, except stating that there are certain

variations from pleading to the evidence of the defendant No.1,

the learned counsel for the plaintiff/appellant could not bring to

the notice of the Court as to what those alleged variations are, R.F.A.No.170/2020

except stating that the Written Statement is silent about the

alleged Gift Deed.

25. A perusal of the Written Statement filed by the

defendant No.1 shows that, no where, the defendant No.1 has

pleaded anything about the alleged gift of an adjoining property

to the suit schedule 'A' property, by his father to him. On the

other hand, he has produced a registered Gift Deed dated

22-11-1999 at Ex.D-1 which shows that, two pieces of

immovable properties, namely, the first property being House

Site No.36, Property No.64/1, House List No.157/1, situated at

B. Narayanapura Village, K.R. Pura Hobli, Bangalore South Taluk,

Bangalore, measuring East to West : 22+12 and North to South:

56 ft. and the other property bearing House Site No.33, Property

No.64/1, House List No.157/1, situated at B. Narayanapura

Village, K.R.Pura Hobli, Bangalore South Taluk, measuring East

to west : 30 ft. and North to South: 35 ft. were gifted to the

defendant No.1, by his father. More details in this regard were

elicited in the cross-examination of DW-1. No doubt, the

defendant No.1, in his Written Statement, has specifically not R.F.A.No.170/2020

spelt about the alleged gift, but has stated that the alleged 10 ft.

passage as well as the WELL belongs to his father

Sri. Venkataramanappa, who had purchased the same on the

date 17-06-1992 from one Sri. Guruva Reddy and

Smt. Achamma, and from the date of the said purchase, the

defendant No.1 has been in possession of the said properties as

well.

Though the defendant No.1 has not mentioned about the

alleged gift, much less the Gift Deed at Ex.D-1 in his pleading,

but it is not the case of the plaintiff that the defendant No.1 is

not the owner of the said properties and not the owner of the

adjoining property. The non-mentioning about the Gift Deed at

Ex.D-1 in the pleading by the defendant No.1, would not, in any

way, cause prejudice to the interest of the plaintiff.

26. Learned counsel for the plaintiff/appellant also

contended that the defendant No.1 has not explained as to how

his father acquired the said adjoining property, therefore, the

case of the defendant No.1 cannot be believed. The said

argument of the learned counsel for the plaintiff/appellant cannot R.F.A.No.170/2020

be accepted, for the reason that, as already observed above, the

defendant No.1, in his Written Statement itself, at paragraph 4,

has stated that, 10 ft. passage as well as the WELL belongs to

his father - Sri. Venkataramanappa, who had purchased the

same on the date 17-06-1992, from one Sri. Guruva Reddy and

Smt. Achamma. He has produced an extract of the record Book

of the Houses and vacant sites, of the BBMP (Revenue

Department), Bangalore, for the year 2008-09, showing the

details of the first defendant's property in it, at Ex.D-3 and an

Encumbrance Certificate at Ex.D-4. He has also produced the

khatha of the property issued by the City Municipal Council,

Mahadevapura, in favour of the defendant No.1, at Ex.D-5, the

khatha endorsement at Ex.D-6, Encumbrance Certificate at

Ex.D-7, tax paid receipt at Ex.D-8, the Certificate of Residence at

Ex.D-9 and seven Encumbrance Certificates at Exs.D-10 to D-16.

All these documents, at the maximum, would go to show that,

the defendant No.1 claims to be the owner of an adjacent

property, but none of them speak about either the existence of a

common passage or the ownership of the defendant No.1 upon

the alleged common passage. They do not even mention about R.F.A.No.170/2020

the existence of the WELL. Therefore, when these documents do

not mention either about the existence of the WELL or about the

existence of the common passage, it was for the plaintiff, who

contends that there exited a common passage, to establish that

there existed a common passage. However, as observed above,

except a self-serving oral statement, the plaintiff could not able

to establish the same. Even the documentary evidence produced

by her also could not able to show the existence of the common

passage as well the existence of the WELL, abutting to the

plaintiff's property or being the part of the plaintiff's property.

As such, the argument of the learned Amicus Curiae for the

defendant No.1/respondent No.1 herein and the argument of the

learned counsel for the defendant No.2/Respondent No.2 -

BBMP, that the plaintiff, except the averment made in the plaint,

could not able to establish the existence of the alleged common

passage, cannot be brushed aside.

27. Learned Amicus Curiae for the defendant

No.1/respondent No.1 herein, during her argument submitted

that, the suit of the plaintiff being only for the relief of R.F.A.No.170/2020

permanent and mandatory injunction, the same is not

maintainable, in the absence of seeking a declaration with

respect to the alleged common passage and the ownership of the

WELL. In support her argument, she relied upon few judgments

as below:

[i] In the case of Anathula Sudhakar Vs. P. Buchi Reddy

(Dead) by LRs. And Ors. reported in MANU/SC/7376/2008 in

paragraph 12 of its judgment, the Hon'ble Apex Court was

pleased to observe that, a cloud is said to raise over a person's

title, when some apparent defect in his title to a property, or

when some prima facie right of a third party over it, is made out

or shown. An action for declaration, is the remedy to remove the

cloud on the title to the property.

[ii] In the case of Siriyala and others Vs. B.N. Ramesh

reported in MANU/KA/0207/2010, a co-ordinate Bench of this

Court has held that, the Court should not decide the issue of

title in a suit for injunction and proper course is to relegate the

plaintiff to remedy of a full-fledged suit for declaration and

consequential reliefs.

R.F.A.No.170/2020

A similar view was also expressed by another co-ordinate

bench of this Court in the case of Mangala Gowramma Vs.

Rukmini, in R.S.A.No.939/2007 in its judgment dated

05-02-2015.

28. In the instant case, the main relief claimed by the

plaintiff is the relief of permanent injunction and mandatory

injunction, including a direction for the defendant No.1 to deliver

the possession of the suit schedule 'B' property, after

demolishing the structure alleged to have been put up by him on

the said portion of the property. Since the defendant No.1 has

seriously disputed the alleged ownership of the plaintiff upon the

suit schedule 'B' property and also disputed the existence of the

alleged common passage, on the other hand, to support his

contention, he has produced the documents like the Gift Deed,

revenue records such as tax paid receipts, khatha certificate, etc.,

standing in his favour, as analysed above. Hence, it was required of

the plaintiff to have sought for the relief of declaration of her

alleged ownership over the suit schedule 'B' property before seeking

the delivery of the vacant possession of the said portion of the R.F.A.No.170/2020

property in her favour. However, the relief of declaration sought

for by her is only to the effect that the structure alleged to have

been put up by the defendant No.1 in the suit schedule 'B'

property is illegal and opposed to law. As such also, the

plaintiff, who has alleged the encroachment of 'B' schedule

property by the defendant No.1, when the defendant No.1 has

specifically disputed the title of the plaintiff over the said portion

of the property with cogent reasons, then, it was incumbent

upon the plaintiff to have sought for the relief of declaration

also. As such, the plaintiff could not able to prove either the

alleged encroachment or the alleged illegal construction upon the

suit schedule property by the defendant No.1.

29. The plaintiff has also sought for the relief of

mandatory injunction, directing the defendant No.1 to leave a set

back of 3 feet on the Western side of the suit schedule 'A'

property and also for a direction to the defendant No.2 to initiate

necessary action under law for the illegal construction of the

structure said to have been put up by the defendant No.1.

R.F.A.No.170/2020

The plaintiff, in support of the prayer made by her on the

above lines has not placed before the Court sufficient materials

either in the form of pleading or in the form of evidence, except

the prayer made in the plaint. The plaintiff, nowhere in the

plaint has given the details of the alleged violation, if any, of the

building plan by the defendant No.1, as to, what is the set back

the defendant No.1 was required to leave and with what

measurement and also the details as to on what basis the

plaintiff alleges that the defendant No.1 has not left the set back.

Apart from these, the plaintiff also has not given any further

details as to, whether she has made any attempt to approach the

competent authority (defendant No.2) in that regard in a manner

known to law and what was the out come. In the absence of

those essential details, with a mere prayer that the defendant

No.1 is to be directed to leave the set back of 3 ft. and also by

mere statement by DW-1 (defendant No.1) that he has not left

the set back, it cannot be inferred that the defendant No.1 has

violated the building plan or building norms and that the plaintiff

had no other alternative remedy except filing a suit seeking a

direction for defendant No.1 to leave a set aback of 3 ft. on the R.F.A.No.170/2020

Western side of the schedule 'A' property. As such also, the

plaintiff is not entitled for the said relief.

30. The Trial Court, though with some different reasons

has arrived at the finding holding that, the plaintiff is not entitled

for the reliefs sought for by her and accordingly, has dismissed

the suit of the plaintiff, I do not find any error in the finding

recorded by the Trial Court in the impugned judgment. As such,

the impugned judgment and decree of the Trial Court does not

warrant any interference at the hands of this Court.

Accordingly, I proceed to pass the following:

ORDER

[i] The Regular First Appeal stands dismissed;

[ii] The judgment and decree dated 12-12-2019

passed by the learned LXVI Additional City Civil and

Sessions Judge, Bengaluru City (CCH No.67), in

O.S.No.6926/2007, stands confirmed.

R.F.A.No.170/2020

The Court while acknowledging the services rendered

by the learned Amicus Curiae for the defendant

No.1/respondent No.1 herein - Smt. Archana K.M.,

recommends honorarium of a sum of not less than `4,000/-

to her payable by the Registry.

Registry to transmit a copy of this judgment along with

the Trial Court records to the concerned Court, immediately.

Sd/-

JUDGE

BMV*