Karnataka High Court
K Jayarama Hegde S/O Kitta Shetty vs H C Rajanna S/O Chikkanna on 26 May, 2023
Bench: H T Prasad
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RFA No. 408 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 408 OF 2008 (INJ)
BETWEEN:
K JAYARAMA HEGDE
S/O KITTA SHETTY
AGED ABOUT 65 YEARS
R/AT NO 177,NAGARBHAVI 2 STAGE
2 BLOCK LAYOUT, BANGALORE 72.
...APPELLANT
(BY SRI. V B SIDDARAMAIAH.,ADVOCATE)
AND:
H C RAJANNA
S/O CHIKKANNA
AGED ABOUT 51 YEARS
Digitally R/AT NO 19, I A MAIN
signed by C MEENAKSHI NAGAR, BANGALORE 79.
MALATHI ...RESPONDENT
Location: (BY SRI. K DIRAJ KUMAR .,ADVOCATE [ABSENT])
High Court
of THIS RFA IS FILED UNDER SECTION.96 OF CPC AGAINST
Karnataka
THE JUDGMENT AND DECREE DATED: 13.2.2008 PASSED IN
O.S.NO.7242/2005 ON THE FILE OF THE V ADDL. CITY CIVIL
JUDGE, BANGALORE, DISMISSING THE SUIT FOR PERMANENT
INJUNCTION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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RFA No. 408 of 2008
JUDGMENT
This appeal is filed by the plaintiff challenging the
judgment and decree dated 13.02.2008 passed by the
V Additional City Civil Judge, Bengaluru in
O.S.No.7242/2005 whereby the suit filed by the plaintiff
has been dismissed.
2. For the sake of the convenience, the parties are
referred to as per their ranking before the Trial Court.
3. The case of the plaintiff is that the Bengaluru
Development Authority has allotted a site bearing No.177
totally measuring 19.50 meter X 12.20 meter in favour of
the plaintiff on 12.08.1988 by executing a lease cum sale
deed in Nagarbhavi II Stage, Bengaluru as mentioned in
the suit schedule. Further case of the plaintiff is that there
is marginal land measuring 2.50 X 12.20 meter adjacent
to the land which is allotted to the plaintiff i.e. site No.177.
4. On request of the plaintiff, the BDA has allotted
the marginal land in favour of the plaintiff on 07.11.2001
RFA No. 408 of 2008
and executed the sale deed on 12.12.2001 in respect of
entire extent of site measuring 22 meter X 12.20 meter as
per Ex.P1. From the date of allotment, the plaintiff is in
possession of the property. On 02.09.2005, the defendant
tried to interfere with the plaintiff's 'A' schedule property
on the eastern portion. Immediately on 06.06.2005, the
plaintiff lodged a complaint against the defendant.
Immediately thereafter, the plaintiff has filed the suit for
injunction.
5. On service of summons, the defendant has
appeared through his counsel and filed written statement
and contended that there is no marginal land available to
the adjacent land of the plaintiff's site. He further
contended that immediately after the allotment, the
plaintiff has put up the compound wall. Now the injunction
is sought against the property which is beyond the
compound wall and the same does not belong to the
plaintiff. Hence, he sought for dismissal of the suit.
RFA No. 408 of 2008
6. On the basis of the pleadings of the parties, the
trial Court has framed the following issues:
"1. zÁªÁ ¢£ÁAPÀzÀAzÀÄ ªÁ¢AiÀÄÄ C£ÀĸÀÆa ¸ÀéwÛ£À ªÉÄïÉ
vÀªÀÄä PÁ£ÀÆ£ÀħzÀÝ ¸Áé¢üãÀªÀ£ÀÄß ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
2. ¥ÀæwªÁ¢AiÀÄÄ GAlÄ ªÀiÁrzÀ CrØ CqÀZÀuÉAiÀÄ£ÀÄß
ªÁ¢UÀ¼ÀÆ ¸Á©ÃvÀÄ ¥Àr¸ÀĪÀgÉÃ?
3. AiÀiÁªÀ rQæ CxÀªÁ DzÉñÀ?"
7. To prove the case, the plaintiff examined
himself as PW-1 and produced 11 documents. Respondent
himself examined as DW-1 and produced 10 documents.
8. On appreciation of oral and documentary
evidence, the trial Court has answered issue No.1 in the
negative and dismissed the suit. Being aggrieved by the
same, the plaintiff is before this Court.
9. Sri V. B. Siddaramaiah, learned counsel
appearing for the appellant/plaintiff has contended that
the BDA has allotted the site in favour of the appellant by
executing the lease cum sale deed on 12.08.1988. Since
there was a marginal land measuring 2.50 meter X 12.20
RFA No. 408 of 2008
meter adjacent to the plaintiff's site, the plaintiff has filed
an application for allotment of the marginal land. The BDA
has allotted the same in favaour of the plaintiff on
07.11.2001. Before allotment of the marginal land, the
plaintiff has put up a compound wall only in respect of site
earlier granted in his favour. Later, the sale deed has been
executed on 12.12.2001. Therefore, the plaintiff is the
absolute owner of the suit schedule property. The trial
Court without considering Ex.P1 - sale deed and the
evidence of PW-1, has erred in dismissing the suit. Hence,
he sough for allowing the appeal.
10. None appears for the respondent.
11. Heard the learned counsel for the appellant.
Perused the judgment and decree and records.
12. The point that arises for consideration in this
appeal is:
"Whether the Judgment and decree passed by
the trial Court is erroneous, arbitrary and does it
calls for any interference by this Court?"
RFA No. 408 of 2008
13. The case of the plaintiff is that the Bengaluru
Development Authority has allotted a site bearing No.177
totally measuring 19.50 meter X 12.20 meter in favour of
the plaintiff on 12.08.1988 by executing a lease cum sale
deed. Further, on 07.11.2001, the BDA has allotted
marginal land measuring 2.50 X 12.20 meter in favour of
the plaintiff. The BDA has executed the sale deed on
12.12.2001 and the same is produced as Ex.P1.
14. Further case of the plaintiff is that he was in the
peaceful possession of the suit schedule property. The
defendant tried to interfere into the suit schedule property
on 02.09.2005. Hence, the plaintiff has filed the suit for
injunction against the defendant. There is no dispute
regarding grant of allotment of the site in favour of the
plaintiff measuring 19.50 meter X 12.20 meter by the BDA
on 12.08.1988. The only dispute is in respect of marginal
land measuring 2.50 meter X 12.20 meter executed in
favour of the plaintiff. The case of the plaintiff is also that
the defendant tried to interfere into the marginal land
RFA No. 408 of 2008
which was allotted to the plaintiff. To prove the existence
of the marginal land before allotting the same to the
plaintiff, the plaintiff neither examined any officer of the
BDA nor he has examined the adjacent owner of the site.
Since he has failed to prove the existence of the marginal
land, the trial Court has rightly dismissed the suit.
15. In view of the above, I do not find any error or
infirmity in the well considered judgment and decree
passed by the trial Court. Hence, the appeal is dismissed.
The judgment and decree passed by the trial Court is
confirmed.
If the plaintiff claims that as per Ex.P1, there is an
allotment of marginal land, liberty is reserved to the
plaintiff to file the suit for declaration, if law permits.
Sd/-
JUDGE
HA
