Karnataka High Court
Smt Susheelamma vs The Commissioner on 6 December, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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RFA No. 1433 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.1433 OF 2017(POS)
BETWEEN:
SMT. SUSHEELAMMA
W/O. LATE SRINIVAS NAIDU
AGED ABOUT 69 YEARS
RESIDING AT NO.157, 12TH 'B' MAIN,
MARUTHI LAYOUT, VIRUPAKSHAPURA,
BANGALORE-560 097.
...APPELLANT
(BY SRI N. SHARATH, ADVOCATE)
AND:
1. THE COMMISSIONER
BBMP, HUDSON CIRCLE
BANGALORE-560 001.
Digitally
signed by
VANDANA S 2. THE EXECUTIVE ENGINEER
Location: BBMP, BYATARAYANAPURA SUB-DIVISION
HIGH BYATARAYANAPURA
COURT OF BANGALORE-560 092.
KARNATAKA
3. THE ASSISTANT REVENUE OFFICER
BBMP, BYATRAYANAPURA SUB-DIVISION
BYATARAYANAPURA
BANGALORE-560 092.
4. VENKATRAMAIAH
S/O. SRI KRISHNAPPA
SINCE DECEASED BY HIS LR'S,
4(a) V. JAGADAMBA
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RFA No. 1433 of 2017
W/O. SANKARAN D.
NO.770/12-2, 15TH 'B' MAIN
MATHIKERE, GOKULA EXTENSION
BENGALURU-560 054.
4(b) V. DURGADEVI
W/O. M. SATYANARAYANA NAIDU
AGED ABOUT 52 YEARS
R/AT #36/3, HMT MAIN ROAD
MATHIKERE, BANGALORE-560 054.
4(c) V. RAGHAVENDRA
S/O. VENKATAMAIAH
AGED ABOUT 45 YEARS
NO.10, BEHIND RAILWAY COLONY
JALAHALLI POST, BANGALORE-560 013.
...RESPONDENTS
(BY SRI S.J. PURANIK, ADVOCATE FOR R.1 TO R.3;
R.4(a), R.4(c) ARE SERVED;
NOTICE TO R.4(b) IS HELD SUFFICIENT VIDE COURT
ORDER DATED 27.06.2023)
THIS APPEAL IS FILED UNDER SECTION 96 READ WITH
ORDER 41 RULE 1 OF CPC., PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE PASSED IN O.S.NO.2149/2013, PASSED
BY THE XXXIX ADDITIONAL CITY CIVIL JUDGE AT BANGALORE
DATED 28.11.2016, IN THE INTEREST OF JUSTICE AND EQUITY
ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 1433 of 2017
JUDGMENT
1. This appeal by the unsuccessful plaintiff in O.S.No.2149/2013
is directed against the judgment and decree dated 28.11.2016
passed by XXXIX Additional City Civil Judge, Bengaluru, whereby
the said suit filed by the appellant/plaintiff against the
respondents/defendants for mandatory injunction and other reliefs
in relation to the suit schedule immovable properties was
dismissed by the trial court.
2. Heard both sides and perused the material on record.
3. The material on record discloses that the appellant/plaintiff
instituted the aforesaid suit for mandatory injunction directing the
respondents/defendants to remove the encroachment on the suit
schedule property and handover vacant possession of the suit
schedule property to the appellant/plaintiff.
4. The said suit was not contested by respondent nos.1 to
3/defendants/BBMP inasmuch as they remained ex parte and
obviously did not file their written statement.
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5. Respondent no.4/private defendant/defendant no.4 having
entered appearance did not file written statement nor did he
contest the suit.
6. The appellant/plaintiff examined her General Power of
Attorney Holder as PW.1 and Exs.P1 to P32 were marked.
7. As stated supra, the respondents/defendants did not file their
written statement and did not contest the suit and the pleadings
and evidence of the appellant/plaintiff remained unimpeached,
unchallenged and uncontroverted in the cross examination.
8. The trial court framed the following points for consideration:
"1) Whether the plaintiff proves that defendants have planted
the chain link fence around the suit property without any
authority?
2) Whether the plaintiff is entitled for the reliefs as prayed for?
3) What order or decree?"
9. While dealing with point no.1, the trial court came to the
conclusion that the pleadings and evidence of the appellant/plaintiff
was sufficient to establish that she was the owner of the suit
schedule property as can be seen from the findings recorded in
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paragraphs 9 and 10 of the impugned judgment, which read as
under:
''9. Point No.1:- The case of the plaintiff is that the
suit schedule property originally belonged to one
Venkataramaiah, who purchased the same under
registered Sale Deed dated 21.3.1997 and he sold the
same through his general power of attorney holder on
28.4.2006 in favour of this plaintiff and since then she
has been in possession of the suit schedule property,
khatha changed in her name and she has been paying
tax to the concerned authorities.
10. To prove these facts, plaintiff has produced
Ex.P.1-Sale Deed dated 22.4.2006. Ex.P.3-Form No.3
pertaining to self-declared property tax particulars in the
name of plaintiff for the year 2005-06. Ex.P.4 is the
receipt issued by Bangalore One for payment of tax.
Exs.P.5, 7 and 9 are the acknowledgements issued by
BBMP for receipt of amount towards tax. Exs.P.8 and
10 are the receipts for payment of tax. Exs.P.11 and 13
are the Challans for payment of tax. Exs.P.12 and 14
are the copies of self-declared property tax declaration
lists for the period 2005-07. Ex.P.21 is the certified
copy of the Sale Deed dated 21.3.2007 in the name of
vendor of plaintiff. Exs.P.22 to 26 are the RTC in
respect of Sy.No.144 which stand in the name of vendor
of plaintiff. Ex.P.30 is the certified copy of the
Secondary Reclassification Copy of Book extract for
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re-Sy.No.144. Ex.P.31 is the acknowledgement issued
by BBMP for receipt of tax. Ex.P.32 is the Tax Paid
Receipt. These documentary evidence clearly
corroborates the case of the plaintiff with respect to
acquisition of property and possession. These oral as
well as documentary evidence corroborates the plaint
averments, which remained unchallenged by the
defendants No.1 to 3 inspite of service of summons and
defendant No.4 though appeared, did not contest the
suit. Therefore, I hold that the plaintiff has proved that
she having acquired the property under the Sale Deed
dated 22.4.2006 was placed in possession and
enjoyment of the suit property and she has been paying
tax to the concerned authorities."
10. However, at paragraph 11, the trial court came to the
conclusion that the appellant/plaintiff had not established that the
respondents/defendants had put a chain link fence to the suit
property and tress passed into the suit schedule property and
blocked 30 feet road existing towards the eastern boundary of the
suit schedule property. In this context, it is relevant to state that the
unimpeached, unchallenged and uncontroverted pleadings and
evidence of the appellant was sufficient to come to the conclusion
that the claim of the plaintiff that the respondents had tress passed
upon the suit schedule property and put up a chain link fence to the
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suit schedule property deserves to be upheld particularly when the
respondents had neither filed their written statement nor cross
examined PW.1 nor adduced any rebuttal evidence to disprove the
claim of the plaintiff.
11. In this context, the reasoning of the trial court that
corroborative evidence was required to establish putting up of a
chain link fence is completely incorrect, erroneous and unsound in
the facts and circumstances of the case, and consequently, I am of
the considered opinion that the reasoning and findings recorded by
the trial court at paragraph 11 of the impugned judgment are wholly
contrary to the material on record and the same deserves to be
set aside.
12. While dealing with point no.2, the trial court placed reliance
upon its finding on point no.1 and proceeded to dismiss the suit on
the sole ground that point no.1 was held against the appellant.
13. As stated supra, having recorded a categorical finding that
the plaintiff had established her possession and enjoyment over
the suit schedule property and also having recorded a finding that
the respondents had not established any manner of right, title,
interest or possession over the suit schedule property, I am of the
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view that the claim of the appellant that respondent nos.1 to 3 had
put up a chain link fence and that the same deserves to be
removed clearly warranted upholding of the claim of the
appellant/plaintiff, which has been incorrectly negatived by the trial
court. Under these circumstances, in the light of the findings
recorded at paragraphs 9 and 10 of the impugned judgment
upholding the right, title, interest and possession of the appellant
over the suit schedule property and having come to the conclusion
that respondent nos.1 to 3/BBMP did not have any manner of right,
title, interest or possession over the suit schedule property, the trial
court clearly fell in error in rejecting the claim of the plaintiff by
passing the impugned judgment and decree which deserves to be
set aside.
14. It is relevant to state that respondent nos.1 to 3/BBMP being
a statutory authority would have to be reserved liberty to take
recourse to such remedies as available in law against the
appellant/plaintiff or any one else in relation to the suit schedule
property in accordance with law.
15. In the result, the appeal is hereby allowed. The impugned
judgment and decree dated 28.11.2016 passed by XXXIX
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Additional City Civil Judge, Bengaluru in O.S.No.2149/2013 is
hereby set aside. The suit of the plaintiff is decreed as prayed for.
Sd/-
JUDGE
hkh.
