Smt Vijaya Krishnamurthy vs The Commissioner
2022 Latest Caselaw 2069 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 9TH DAY OF FEBRUARY, 2022

                      BEFORE

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

            R.F.A. NO.725 OF 2006 (INJ)

BETWEEN:

SMT.VIJAYA KRISHNAMURTHY
W/O LATE V.KRISHNAMURTHY
SINCE DECEASED BY HER LEGAL
REPRESENTATIVES

1)    SRI. V.K.N. RAJAN
      S/O LATE V.KRISHNA MURTHY
      AGED 64 YEARS

2)    SRI.V.K.KUMAR
      S/O LATE V. KRISHNA MURTHY
      AGED ABOUT 51 YEARS

3)    SMT. V. K. ARUNA
      D/O LATE V.KRISHNA MURTHY
      AGED ABOUT 50 YEARS

4)    SMT. V. K. LAKSHMI
      D/O LATE V. KRISHNA MURTHY
      AGED ABOUT 43 YEARS

5)    SMT. MALATHI RAMASUBRAMANYAN
      W/O LATE C.V.SUBRAMANYAN
      AND D/O LATE V. KRISHNAMURTHY
      AGED ABOUT 71 YEARS
                           2



6)    SMT. SHANTHA NARAYANAN
      W/O LATE K R NARAYANAN
      D/O LATE V. KRISHNAMURTHY
      AGED ABOUT 66 YEARS

7)    SMT. BHAGYA RAMACHANDRAN
      W/O S. RAMACHANDRAN
      D/O LATE V. KRISHNAMURTHY
      AGED ABOUT 58 YEARS

8)    SMT. SARALA VENKATACHALAPATHY
      W/O VENKATACHALAPATHY
      D/O LATE V.KRISHNAMURTHY
      AGED ABOUT 56 YEARS

      THE APPELLANT NOs.1 TO 8 ARE
      R/AT NO.36, PAPU COTTAGE
      KANAKAPURA MAIN ROAD
      SOUTH CROSS ROAD
      BASAVANAGUDI
      BANGALORE - 560 004

      SRI. S. C. SOHANRAJ
      SINCE DECEASED BY HIS LEGAL
      REPRESENTATIVES

9.    SMT.RAJIBAI
      W/O LATE S.C.SOHANRAJ
      AGED ABOUT 72 YEARS

10.   SRI. C. MAHAVEERCHAND
      S/O LATE S. C. SOHANRAJ
      AGED ABOUT 47 YEARS

11.   SRI. NAVARATHANMAL
      S/O LATE S.C.SOHANRAJ
      AGED ABOUT 42 YEARS
                           3



12.    SRI. S. HUKUMCHAND
       S/O LATE S.C.SOHANRAJ
       AGED ABOUT 39 YEARS

       APPELLANT NOs.9 TO 12 ARE
       R/AT NO.37/1, KANAKAPURA
       MAIN ROAD, BASAVANAGUDI
       BANGALORE - 560 004.
                                         ... APPELLANTS

(BY SRI.K.K. VASANTH, ADV.)

AND:

1.     THE COMMISSIONER
       BANGALORE MAHANAGARA PALIKE
       N R SQUARE, BANGALORE - 560 009

2.     SRI. N. KRISHNA
       ASSISTANT EXECUTIVE ENGINEER
       HOMBEGOWDANAGAR DIVISION
       BANGALORE CITY CORPORATION
       NOW BANGALORE MAHANAGARA PALIKE
       SOUTH END CIRCLE
       BANGALORE - 560 011

3.     THE JUNIOR ENGINEER
       DIVISION NO.56
       HOMBEGOWDANAGAR DIVISION
       BANGALORE CITY CORPORATION
       NOW, BANGALORE MAHANAGARA PALIKE
       SOUTH END CIRCLE
       BANGALORE - 560 011

4.     SMT. LAKSHMI MURTHY
       AGED ABOUT 64 YEARS
       W/O LATE V. KRISHNAMURTHY
                          4



5.   SMT. MEERA RAMAN
     W/O LATE VK RAMAN
     D/O LATE V. KRISHNAMURTHY
     AGED ABOUT 45 YEARS

6.   SRI. V. K. SHEKAR
     AGED ABOUT 54 YEARS
     S/O LATE V. KRISHNAMURTHY

7.   SRI. V. K. SRIDHAR
     AGED ABOUT 52 YEARS
     S/O LATE V. KRISHNAMURTHY

8.   SMT. UMA RAMAN
     AGED ABOUT 55 YEARS
     W/O S. RAMAN

     RESPONDENT NOs.4 TO 8 ARE
     R/AT NO.36, PAPU COTTAGE
     KANAKAPURA MAIN ROAD
     SOUTH CROSS, ROAD
     BASAVANAGUDI
     BANGALORE - 560 004.           ... RESPONDENTS

(BY SRI.B.V.MURALIDHAR, ADV. FOR R1 & R3;
    VIDE ORDER DATED 2.2.2012 APPEAL
    AGAINST R2 DISMISSED)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
ORDER XLI RULE 1 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 2.1.2006 PASSED IN O.S.NO.6421/89 ON
THE FILE OF THE I ADDL. CITY CIVIL AND SESSIONS
JUDGE, BANGALORE (CCH-2) DISMISSING THE SUIT FOR
PERMANENT INJUNCTION AND RECOVERY OF DAMAGES.

     THIS REGULAR FIRST APPEAL COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                                     5



                           JUDGMENT

Aggrieved by the judgment and decree dated

02.01.2006 passed in O.S.No.6421/1989 by the I

Additional City Civil and Sessions Judge, Bengaluru, instant

appeal is filed by the plaintiffs 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 plaintiffs is that they are the

owners of the property bearing Corporation No.36/1

situated at Papu Cottage, Kanakapura Main Road,

Basavanagudi, Bangalore - 560 004. The schedule of the

property is as mentioned hereunder:-

"All the piece and parcel of the property bearing No.36/1, situated at Papu Cottage, Kanakapura Main Road, Basavanagudi, Bangalore-04 measuring East to West on the northern side 66' and on the southern side 70' and north to south on the western side 47' on the eastern side 40' in all measuring 2958. sq.ft. consisting of four temporary sheds and surrounded by compound walls. Bounded on the East by: Yediyur Tank Bund Road, West by: Private property and Mahaveer Chand's

property, North by : Property bearing No.7A and 7B vacant site with compound wall, and South by : Yediyur tank bund road."

4. It is contended that the defendants - BBMP

Corporation has illegally encroached upon the schedule

property and has demolished a portion of the construction

put up on the schedule property. Aggrieved by the said

act of the defendants, O.S.No.6421/1989 was filed with

the following prayers:-

"Wherefore, the plaintiff herein, humbly prays that, this Hon'ble Court be pleased to pass the judgment and decree against the defendants and in favour of the plaintiff for permanent injunction restraining the defendants No.1, 2 and 3 and their henchmen permanently interfering with the peaceful possession and enjoyment of the plaint schedule property by the plaintiff and her general power of attorney holder of and also restraining the defendants permanently from meddling with the compound wall, constructed in the plaint schedule property and to grant such other relief this Hon'ble Court deems fit to grant by awarding cost of this suit, in the interest of justice and equity.

(b) And the plaintiff further prays that, this Hon'ble Court be pleased to pass judgment and decree against the defendants for mandatory injunction directing them to restore the plaint schedule property to its original possession by putting up the construction which were standing on the plaint scheduled property prior to 13.5.1994 at their cost and failing which, allow the plaintiff to put up construction and recover the cost of the construction from the defendants and to pass such other orders as this Hon'ble Court deems fit to pass in the interest of justice and equity."

5. The defendants have entered appearance and

filed their written statement in the trial Court and have

contested the case.

6. Based on the pleadings, the trial Court has

framed the following issues:-

"(1) Does the plaintiff proves that the suit compound wall was constructed lawfully?

(2) Whether the plaintiff proves the obstruction and interference by the defendants in possession of the schedule property?

(3) Is plaintiff entitled for injunction sought for?

(4) What Order or decree?"

7. The plaintiffs to prove their case have examined

five witnesses as P.Ws.1 to 5 and got marked Exs.P.1 to

P.76. The defendants have examined two witnesses as

D.W.1 and 2 and got marked Exs.D.1 to D.8.

8. The aforementioned issues have been answered

as mentioned herein:-

        (i)         "Issue No.1 : In Negative
        (ii)        Issue No.2 : In Negative
        (iii)       Issue No.3 : In Negative
        (iv)        Issue No.4 : As per final order"

The trial Court has dismissed the suit of the

plaintiffs. Aggrieved by the same, the plaintiffs therein

have preferred this appeal.

9. The contention of the plaintiffs is that they are

the owners of the suit schedule property. The said suit

schedule property was originally part of four acres of land

which was purchased by husband of the deceased plaintiff.

Presently, the current plaintiffs who are children and legal

representatives of the deceased plaintiff are in possession

of the suit schedule property and they had put up

construction on a portion of suit schedule property

abutting tank bund of Yediyur lake. The portion of the

same has been illegally encroached upon by the

respondents - Corporation and the construction put on the

property abutting the tank bund has been demolished by

the defendants.

10. Per contra, learned counsel for the defendants

has contended that they have not illegally encroached

upon any portion of the plaintiffs property. The plaintiffs

have illegally put up temporary shed on defendants' land

which has been removed in accordance with law.

11. Though the plaintiffs have contended that the

husband of the deceased plaintiff had originally purchased

four acres of land and that the suit schedule property was

part of the said four acres, they have not produced any

document to show the same. No documents have been

produced to duly identify the suit schedule property.

Except, averments in the plaint, the assertion in the

affidavit evidence and in cross-examination of the GPA

holder for the plaintiffs, the plaintiffs have not produced

any documents to prove that they are the absolute owners

of the suit schedule property and that there is illegal

encroachment as alleged against them. It is seen from the

cross-examination that the GPA Holder/PW-1 is ignorant

about several aspects of the suit schedule property. As

the plaintiffs failed to prove the existence of suit schedule

property as alleged by believable evidence, the trial Court

dismissed the suit filed by the plaintiffs. In the appeal,

plaintiffs/appellants have not been able to point out the

error committed by the trial Court and why the well

reasoned order of the trial Court has to be reversed.

For the aforementioned reasons, appeal being

devoid of merits is hereby dismissed.

Sd/-

JUDGE MH/-