The Commissioner vs Smt Shanthamma
2022 Latest Caselaw 1918 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 8TH DAY OF FEBRUARY, 2022

                        BEFORE

         THE HON'BLE MR. JUSTICE M.I.ARUN

              RFA NO.248 OF 2010 (INJ)

BETWEEN:

1.     THE COMMISSIONER
       BANGALORE MAHANAGARA PALIKE
       N.R.SQUARE, BANGALORE - 560 002

2.     THE ASSISTANT ENGINEER
       BANGALORE MAHANAGARA PALIKE
       CORPORATION COMPLEX BUILDING
       4TH BLOCK, JAYANAGAR
       BANGALORE - 560 011               ... APPELLANTS

(BY SRI.B.V.MURALIDHAR, ADV.)

AND:

SMT. SHANTHAMMA
W/O LATE SRI.KRISHNA REDDY
AGED ABOUT 61 YEARS
R/O KODATHI VILLAGE
VARTHUR HOBLI
BANGALORE SOUTH TALUK - 87               ... RESPONDENT

(VIDE ORDER DATED 28.02.2013
    RESPONDENT IS SERVED)

     THIS RFA IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 10.11.2009 PASSED IN O.S.NO.4619/1998 ON
THE FILE OF THE XVI ADDITIONAL CITY CIVIL JUDGE,
BANGALORE, DECREEING THE SUIT FOR PERMANENT
INJUNCTION.
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     THIS RFA COMING ON FOR HEARING THIS DAY,
THROUGH VIDEO CONFERENCING, THE COURT DELIVERED THE
FOLLOWING:
                         JUDGMENT

Aggrieved by the judgment and decree dated

10.11.2009 passed by XVI Additional City Civil Judge,

Bengaluru, in O.S.No.4619/1998, the instant appeal is filed

by the defendants therein.

2. For the sake of convenience, the parties are referred

to as per their status before the trial court.

3. The case of the plaintiff is that she is the owner of

the property being old Gramathana site No.29, new No.84

as per house list No.96 measuring 100' X 36' situated at

Jakkasandra village, Begur Hobli, Bengaluru South Taluk.

The schedule of the property is as mentioned below:

"SCHEDULE

The immovable property bearing old Gramathana site No.29, and New No.84, as per house list No.96, situated at Jakkasandra, Begur Hobli, Bangalore South Taluk, measuring 12'*36' and bounded on:

East by : K. Mohammed Sab's land, West by: Government road

North by: Byrappa's land South by: Kundalahalli Papanna's Back yard."

4. It is the contention of the plaintiff that the

defendant-Bruhat Bengaluru Mahanagara Palike (BBMP) is

illegally trying to encroach upon a portion of her property

and trying to form a road on the same. Hence, she has

preferred O.S.No.4619/1998 with the following prayers:

"WHEREFORE, the plaintiff prays for judgment and decree against the defendants;

i) restraining the defendants from forming the road in vacant portion shown in the rough sketch B.C.F.G of the suit schedule property by issuing an order of permanent injunction.

ii) for the cost and such other relief as this Hon'ble Court may deems fit to grant under the circumstances of the case, in the interest of justice and equity."

5. The defendants have filed the written statement

before the trial court and have denied the allegations made

by the plaintiff. They have contended that there is already

a pre-existing Kaccha road where they have sought to tar.

It is specifically contended that the property does not

belong to the plaintiff and they have prayed for dismissal

of the suit.

6. Based on the pleadings, the trial court framed the

following issues for consideration:

1. Whether the plaintiff proves her lawful possession of suit schedule property on the date of the suit?

2. Whether the plaintiff proves that the 2nd defendant is attempting to form the road in the vacant portion of the suit schedule property as shown by letters 'BCFG' in the sketch?

3. Whether the suit is not maintainable for non issuance of notice under Section 482 of the KMC Act?

4. Whether the plaintiff is entitled to a decree of permanent injunction as sought for?

5. What Decree or order?

7. The plaintiff, to prove her case, has examined two

witnesses including herself as PW.1 and has also got

marked Exs.P1 to P6. The defendants have not let in any

evidence nor have they got marked any documents.

8. Based on the pleadings and the evidence let in, the

trial court has answered the above issues in the following

manner:

             (i) Issue No.1:        In Affirmative
            (ii) Issue No.2:        In Affirmative
           (iii) Issue No.3:        In Negative
           (iv) Issue No.4:         As per separate order
                                    for the following:

Consequently, the suit of the plaintiff has been decreed as

under:

"ORDER The suit of the plaintiff is decreed.

The defendants and their men are permanently restrained from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property more specifically described in the rough sketch at Ex.P-6, which shall form part of the decree excluding the southern portion said to be in unauthorized occupation of legal representatives of Munimotappa and further restrained from forming any road in the portion described as 'BCFG' in the rough sketch annexed to the plaint without taking recourse under law.

                     Having   regards          to   the    facts     and
           circumstances       of       the    case,      parties    are

directed to bear their own costs."

9. Aggrieved by the same, the defendants therein have

preferred this appeal.

10. Heard the learned counsel for the appellants.

Though the respondent (plaintiff) is served, she has

remained unrepresented.

11. The plaintiff to prove her title to the property has

produced a copy of the sale deed dated 17.01.1979 as

Ex.P2 through which she has acquired the property. The

same has been rectified by way of a rectification deed

dated 19.05.1994 which is produced and marked as Ex.P5.

Ex.P3 is a copy of the approved plan which is given by

Town Panchayat permitting the plaintiff to put up

construction on the suit schedule property. The

boundaries mentioned in the rectification deed (Ex.P5) as

well as approved plan (Ex.P3) shows that the suit schedule

property exists as mentioned in the schedule to the suit

and Ex.P2-sale deed and Ex.P5-rectification deed prove her

ownership over the same.

12. Ex.P6 is the site plan which shows the extent of the

suit schedule property and also a portion of the property

which is sought to be tarred as a road by the defendants.

13. The defendants though have denied title of the

plaintiff to the portion of the property where they intend to

put up a road have not produced any document to show

that there is a road on the property as contended by them.

In fact, they have not let in any evidence nor have they

marked any documents on their behalf. Mere averment to

that effect in the written statement is not sufficient. The

trial court based on the records produced by the plaintiff

has come to the conclusion that she is the owner of the

suit schedule property as claimed in the plaint and that the

defendants are illegally trying to encroach upon the

property. Nothing contrary worthy of over turning the

findings of the trial court has been elicited from the mouth

of PW.1 in her cross examination by the defendants. The

defendants/appellants are not in a position to point out

any error in the well reasoned order of the trial court.

For the aforementioned reasons, the appeal being

devoid of any merits is hereby dismissed.

Sd/-

JUDGE

hkh.