Bangalore District CourtS. Sridhar vs A. Hanumantha on 2 January, 2018C.R.P.67                                           Govt. of Karnataka
  Form No.9 (Civil)
   Title Sheet for
Judgments in Suits
      (R.P.91)

           TITLE SHEET FOR JUDGMENTS IN SUITS
 IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
  AND SESSIONS JUDGE (CCH-15) AT BENGALURU
           Dated this the 2nd day of January, 2018.
                            PRESENT:
     Sri PATIL NAGALINGANAGOUDA, B.A.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
                       Bengaluru.
                ORIGINAL SUIT No.6675/2008
PLAINTIFF             :    S. Sridhar,
                           S/o. Late Sampangi Ramaiah,
                           Aged about 38 years,
                           Residing at No.120, 2nd Cross,
                           Jeevanahalli, Cox Town,
                           Bangalore - 560 005.
                           (By Sri A. Vijaya Sai, Advocate)
                            -VERSUS-
DEFENDANT             :    A. Hanumantha,
                           S/o. Ayyappa,
                           Aged about 42 years,
                           No.118, 7th Cross,
                           Jeevanahalli Cox Town,
                           Bangalore - 560 005.
                           (By Sri V. Sudhakar, Advocate)
---------------------------------------------------------------------
Date of Institution of the Suit :                      30-09-2008
Nature of the Suit (Suit on    :                   Injunction Suit.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement          :                    07-12-2015
of recording of the evidence




                                                             Cont'd..
                                -2-           O.S. No.6675/2008

Date on which the Judgment :                          02-01-2018
was pronounced
---------------------------------------------------------------------
                                   Year/s Month/s            Day/s
                                   ----------------------------------
Total duration :                   9 years, 3 months, 2 days.
---------------------------------------------------------------------


                    (PATIL NAGALINGANAGOUDA)
             VIII Additional City Civil and Sessions Judge,
An&/-                          Bengaluru.

                        JUDGMENTThis is a suit filed by the plaintiff against the
defendant for relief of mandatory injunction directing
the defendant to remove the constructed pillars in the
area demarcated at Annexure - Q belonging to the
plaintiff which is suit schedule property and to restrain
the defendants from interfering and from encroaching
the property Nos.119 and 120 demarcated and shown at
Annexure - F and to direct the defendant to demolish
Sajja, parapet, wall, gate which the defendant has
encroached upon and constructed illegally at the
portion shown in Annexure - Q which is part and parcel
of the suit schedule property.2. The brief facts of the plaint are as under -Plaintiff has contended that he is the absolute
owner having right, title and interest of the immovable
residential property situated at No.120, 2nd Cross,
Srirama      Temple     Street,    Jeevanahalli      Cox     Town,




                                                            Cont'd..-3-        O.S. No.6675/2008

Bangalore having acquired through the partition deed
dated 01-02-1982. Plaintiff has paid taxes on the said
property and he has got the property changed in his
name and Khata certificate was also changed in his
name.    It is contended father of the plaintiff has got
schedule property surveyed through the Government
Survey Department and they have issued survey sketch
of the property bearing Nos.120 and 119 together.It is submitted property No.119 belonging to late
Chikkanna i.e., uncle of the plaintiff and on his death,
the same has been devolved on his son Sathish.
Property No.120/1 belonging to late Gowramma and on
her death, devolves on the plaintiff and others and in
the said matter, a suit for partition is pending before the
City Civil Judge (CCH-39) in O.S. No.689/2008 which is
pending for adjudication. Thus, plaintiff and others are
absolute owners of the property bearing Nos.119 and
120 with right, title and interest.It is contended adjoining to the above said
properties and suit schedule property, property No.118
which is situated in the Southern side of the schedule
property belonging to the defendant.       Defendant has
recently started constructing in the Southern side of the
suit schedule property and has deviated from his
demarcation of boundaries and encroached on the suit
schedule property and also property Nos.119 and
120/1. This encroachment took place in the last week
of August, 2008 and plaintiff requested the defendant



                                                    Cont'd..-4-           O.S. No.6675/2008

not to encroach on several occasions, but unfortunately
defendant has deviated from measurement of his
property and encroached into the suit schedule property
belonging to the plaintiff and others.     It is contended
property bearing No.118 purchased in two portions and
thereafter got amalgamated and after amalgamation,
defendant has encroached the suit schedule property.
It   is   contended   defendant   has     made   intended
encroachment on the plaintiff's property as shown and
demarcated at the sketches produced by the plaintiff at
Annexures P and Q. Defendant has encroached to an
extent of 2 feet on the Southern side i.e., facing 7th
Cross Road to the rear which is western portion
encroaching 2½ feet which is shown as Annexure - Q.
It is contended defendant along with his workmen,
henchmen, goondas unlawfully and illegally threatened
the plaintiff and his family members and further caused
damage to the suit schedule property on the Southern
side. Though plaintiff approached the police authority,
they have refused to receive the complaint on the
ground dispute is civil in nature.        It is contended
plaintiff has submitted representation to the B.B.M.P.
against the defendant.   In spite of that they have not
taken any action against the defendant. It is contended
defendant is taking law into his own hands and he is in
hurried manner constructing the building to complete
the same.Cont'd..-5-       O.S. No.6675/2008

       Plaintiff by way of amendment has contended after
filing of the suit and after obtaining interim order of
status quo, defendant has disobeyed the Court Order
and kept on constructing and further encroached upon
the property shown at Annexure - Q.            Even police
authorities have also disobeyed the Court order. Even
B.B.M.P. authorities have not come forward to rescue
the right of the plaintiff. With this submission, plaintiff
prayed to decree the suit.3. On the other hand, in pursuance of summons,
defendant appeared through his Counsel and filed
written statement. Defendant has contended suit of the
plaintiff is not tenable either in law or on facts and it is
liable to be dismissed as plaintiff has filed this suit by
suppressing the      material facts.     It is contended
defendant      acquired    immovable    property    bearing
No.118/1, old No.66 situated at Jeevanahalli Cox Town,
Bangalore measuring East 30 feet, West 30 feet, North
13½ feet and South 13½ feet under registered sale deed
darted 11-06-2008 executed by one Mastan.                It is
contended said Mastan has executed rectification deed
on 22-09-2008 rectifying the measurement of the
property.      It is contended defendant had acquired
immovable property bearing No.118, old No.66 situated
at Jeevanahalli Cox Town, Bangalore under registered
sale    deed    dated     23-06-2008   executed     by     K.
Ramachandra.      It is contended said K. Ramachandra
has also executed rectification deed on 19-09-2008 and




                                                    Cont'd..-6-          O.S. No.6675/2008

accordingly, measurement came to be rectified.             It iscontended after purchase of the above said property
under two registered sale deeds, immovable property
Nos.118 and 118/1 together measures East-West 55
feet, North-South 13½ feet and together bounded on
East by road, West by private property, North by
property belonging to the plaintiff and two others and
South by private property. It is contended aforesaid two
immovable properties amalgamated into one property
and have assigned Khata No.118/1. Thus, name of the
defendant is registered as Khathedar of the above said
property which is more fully described as written
statement schedule property.It     is   contended    defendant    approached    the
authorities of B.B.M.P. for issuance of sanction plan for
putting up residential construction over the written
statement schedule properties and after verifying the
document, local inspection B.B.M.P. has sanctioned
plan.        It is contended plaintiff has in fact described the
schedule property in excess to what is the actually
available and actually belongs to the plaintiff. In fact,
plaintiff is not the owner of the immovable property
bearing Nos.119 and 120/1 and as such, he has no
right, title and interest much less any locus standi to
mention the said properties in the present suit.           It is
contended plaintiff has played fraud and mischief by
showing wrong measurement and wrong boundaries
knowing fully well that property bearing Nos.119 and




                                                         Cont'd..-7-           O.S. No.6675/2008

120/1 are no way concerned to him.             It is contended
defendant    after    obtaining    sanction    plan,        put    upconstruction of residential house in his property and at
that time, plaintiff with mala fide intention and for
extraction of money started to trouble and harass the
defendant.    Defendant filed Caveat Petition before the
Court on 19-09-2008.           It is contended in spite of
defendant having filed Caveat, plaintiff having filed suit
on 03-10-2008 and obtained interim order of status quo
and in obedience of the Court order, defendant has
stopped construction in respect of her property Nos.119
and 120 and not in respect of the immovable property
belonging    to    the   defendant   bearing    No.118/1            as
described in the written statement schedule property, as
such though interim order is in respect of the property
belonging to the plaintiff where actually no construction
is taking place.Defendant        has    specifically    denied     he        has
encroached 2 feet in the suit schedule property.                  It is
contended in fact property belonging to the plaintiff is
more than the actual measurement.             Even otherwise,
assuming but not conceding the two feet is alleged to be
belonging to the plaintiff, defendant who actually left 3½
feet as set back area is ready to handover the said
extent of 2 feet if this Court or Appellate court were to
render a finding that said 2 feet belongs to the plaintiff
in order to enable the Court to render a finding
defendant     is     ready   for    appointment        of     Court




                                                             Cont'd..-8-         O.S. No.6675/2008

Commissioner for taking measurement of the property
belonging to the plaintiff and defendant. It is contended
in fact plaintiff is in actual possession of excess land
than what actually is entitled, hence plaintiff is not
entitled for the relief sought for.      It is contended
property belonging to the plaintiff bearing No.120
measuring approximately 16 feet x 70 feet which is
situated in between the property bearing Nos.119 and
120/1 and further plaintiff is not residing in the said
property bearing No.20 in as much as the same is
rented out.Defendant by way of amendment has contended
plaintiff and his family members acquired immovable
property bearing No.120, Jeevanahalli, Cox Town,
Bangalore as per schedule 'C' to the registered partition
deed dated 01-02-1982. As per the schedule 'C' to the
partition deed, measurement of the property bearing
No.120 is measuring on the East 65.9 inches, on the
West 65.3 inches, North 22 feet and South 20.6 inches
together with boundaries mentioned there under. It is
contended except the above measurement, plaintiff
cannot described plaint schedule to his whims and
fancies and plaintiff is not the owner in respect of
property bearing No.119, therefore he cannot described
the said property in the schedule.        Defendant has
admitted plaintiff is owner of immovable property baring
No.120. Defendant has denied father of the plaintiff got
the   schedule    property    surveyed     through   the




                                                  Cont'd..-9-       O.S. No.6675/2008

Government Survey Department and they have issued a
Survey sketch of the property bearing Nos.120 and 119
together.      It is contended the very admission of the
plaintiff     property   bearing    No.119    belonging   to
Chikkanna and on his death same has been devolved on
his son Sathish, that itself is sufficient to dismiss the
suit as plaintiff has no right to incorporate the property
belonging to said Sathish in schedule to the plaint and
who is not party to the present proceedings. Defendant
has admitted towards South of the immovable property
bearing No.119 belonging to one Sathish, property
bearing No.120 belonging to the plaintiff and property
No.120/1 belonging to one Gowramma and property
bearing No.118 and 118/1 (now amalgamated as
assigned as 118/1) are situated.           Defendant further
denied that he has encroached to an extent of 2 feet on
the Eastern side facing 7th Cross Road to the rear which
is Western portion encroaching 2½ feet which is shown
at Annexure - Q.         With this submission, defendant
prayed to dismiss the suit.4. On the basis of the above said pleadings of both
the sides, this Court has framed the following -license deed it ha
                          ISSUES1. Whether the plaintiff proves he is lawful
            possession over suit schedule property as
            on the date of suit?Cont'd..- 10 -       O.S. No.6675/20082. Whether the plaintiff proves defendant
        has encroached to an extent of 2 ft. on the
        eastern side, i.e. facing 7th cross road to
        rear   which   is     the     western   portion
        encroaching    2½      feet    as   shown    at
        Annexure-Q?3. Whether plaintiff proves defendant has
        encroached on the southern side of suit
        property and also property No.119 and
        120/1?4. Whether plaintiff proves after filing of this
        suit   defendant     has      encroached    suit
        schedule property as alleged?5. Whether suit is bad for non-joinder of
        necessary party?6. Whether plaintiff is entitled for the relief
        of Permanent Injunction as sought?7. Whether plaintiff is entitled for the relief
        of Mandatory Injunction as prayed?8. What Decree or Order?5. In order to substantiate the averments of the
plaint, plaintiff himself examined as P.W.1 and he has
adduced evidence of one Sagayraj as P.W.2 and got




                                                       Cont'd..- 11 -        O.S. No.6675/2008

documents marked as per Exs.P.1 to P.47 and closed
his side.6. When case posted for defendants evidence,
defendant    himself   examined   as    D.W.1   and    got
documents marked as per Exs.D.1 to D.24.7. I have heard arguments from both the sides.8. My findings on the above Issues are as under -ISSUE No.1 - Negative;ISSUE No.2 - Negative;ISSUE No.3 - Negative;ISSUE No.4 - Negative;ISSUE No.5 - Affirmative;ISSUE No.6 - Negative;ISSUE No.7 - Negative;ISSUE No.8 - As per final order,

for the following -REASONS9. ISSUE NOs.1 TO 4 : Since all these Issues are
inter-related with each other, they are being taken up
together for discussion at a stretch in order to avoid
repetition of facts.Cont'd..- 12 -       O.S. No.6675/200810. In the written argument, Advocate for plaintiff
has argued plaintiff has filed this suit for relief of
permanent injunction restraining the defendant from
interfering and encroaching over the suit schedule
property and to remove the constructed pillars in the
area demarcated at Annexure - Q belonging to the
plaintiff and thereafter to restrain the defendants from
not to encroach on the property bearing Nos.119 and
120 demarcated and shown at Annexure - F.            It is
argued thereafter plaintiff got amended the plaint and
sought relief to demolish Sajja, parapet wall gate wall
which defendant has encroached upon and constructed
illegally at the portion shown in Annexure - Q which is
part and parcel of the schedule property. It is argued at
the inception of filing of the suit, this Court passed an
order of status quo and on the date of filing of the suit,
defendant had only laid the foundation and he had not
constructed the foundation with building. It is argued
defendant by violating the order of status quo erected
pillars constructed the ground floor portion before
building the ground floor portion, defendant obtained
electricity connection without proper inspection.    It is
argued plaintiff has produced documents which are
marked as per Exs.P.1 to P.47 including the partition
deed, tax paid receipt, Khata certificate and other
documents to prove lawful possession over the suit
schedule property.     It is argued plaintiff has also
established Issue No.2 that defendant has encroached
to an extent of 2 feet on Eastern side i.e., facing 7th



                                                   Cont'd..- 13 -       O.S. No.6675/2008

Cross road to the rear which is Western portion
encroaching 2½ feet as shown at Annexure - Q. It is
argued though defendant has produced plenty of
records, but defendant has not produced any mother
deed and there are no supportive documents to show
the measurement of the defendant's property as claimed
by the defendant.          It is argued even in the cross-
examination,       defendant    has     categorically    admitted
about possession of the suit schedule property by the
plaintiff    and   about     encroachment       made     by    the
defendant. With this submission, Advocate for plaintiff
prayed to answer the above said Issues in favour of the
plaintiff.11. On the other hand, in the written argument,
Advocate for defendant has taken contention plaintiff
has stated that he is the owner of the schedule property
describing the schedule property as site Nos.119 and
120 and has described the measurement of the
schedule property East-West : 64.35 feet and North-
South : 72.93 = 71.3/2 feet by combining both the
properties together.       It is argued plaintiff has further
alleged      defendant   has    encroached     portion    of   the
schedule property and filed the suit seeking the relief of
permanent injunction as well as mandatory injunction.
It is argued defendant has not violated the interim order
passed by this Court plaintiff taking advantage of the
interim order misinterpreted the interim order and
created nuisance near the written statement schedule




                                                           Cont'd..- 14 -            O.S. No.6675/2008

property.    It is argued the measurement described inthe plaint schedule is in excess when compared to the
actual measurement of site No.120 belongs to the
plaintiff. It is argued plaintiff ascertaining his right over
the suit schedule property on the basis of the partition
deed dated 01-02-1982 and as per the recitals of the
said partition deed, schedule 'C' property is the property
bearing No.120 measurement is shown on the East 65
feet 9 inches, on the West 65 feet 3 inches, North 22
feet   and   South     20   feet   6   inches      together   with
boundaries.    It is argued except above measurement,
plaintiff cannot describe the plaint schedule as per his
whims    and   fancies      and    plaintiff    cannot   describe
property No.119 as he is not the owner of the said
property. It is argued in order to resist the claim of the
plaintiff, defendant himself examined as D.W.1 and
defendant has produced plenty of records to show that
he has purchased the written statement schedule
property on the basis of two sale deeds and two
rectification deeds.     It is argued though plaintiff has
described site No.119 which is no way concerned to the
plaintiff and he had filed the suit only to harass the
defendant. With this submission, defendant prayed to
answer the above said Issues in favour of the defendant.12. It is admitted fact plaintiff has described the
schedule property as under -"All that piece and parcel of the
       immovable residential property situated at



                                                          Cont'd..- 15 -       O.S. No.6675/2008

      No.119 & 120, 2nd Cross, Srirama Temple
      Street, Jeevanahalli Cox Town, Bangalore -
      560 005, measuring East to West : 64.35 ft.,
      North to South : (72.93+71.3)/2 ft., and
      bounded on the :East by     : 7th Cross Road,
            West by     : Munivenkatappa's Property,
            North by    : 2nd Cross Road,
                          Srirama Temple Street,
            South by    : Property No.118 belonging to
                          the defendant.It is also admitted fact as per version of the plaintiff, he
acquired the said property through registered partition
deed dated 01-02-1982. There is no dispute as per the
partition deed dated 01-02-1982, schedule 'C' property
allotted to the share of M. Ramaiah @ Sampangiramaiah
who is father of the plaintiff. Admittedly, said partition
deed marked on behalf of the plaintiff as Ex.P.1.
Schedule 'C' property described in Ex.P.1 as under -'C' SCHEDULE

            (Property allotted to the share of the
      PARTIES OF THE THIRD PART

            A portion of premises bearing No.120,
      Jeevanahalli, Cox Town, Bangalore-560 005,
      and delineated in Green colour in the Plan
      annexed to this Deed which is numbered as
      No.-II, and bounded on the East by property



                                                     Cont'd..- 16 -         O.S. No.6675/2008

      allotted to the share of Sri Chikkanna; West
      by property allotted to the wife of Sri M.
      Chandrappa; North by Road and on the
      South by Private property and measuring on
      the East 65 feet 9 inches; on the West by 65
      feet 3 inches;     North 22 feet and on the
      South 20 feet 6 inches."13. On careful perusal of the property described in
Ex.P.1 which is allotted to share of father of the plaintiff
is entirely different from the property described by the
plaintiff in the plaint schedule. Nowhere in Ex.P.1 it is
mentioned property bearing Nos.119 and 120 are
comprised     sites   and   they     are    having   common
boundaries.     On the other hand, property bearing
No.119 is mentioned as 'F' property in Ex.P.1, it is
allotted to share of Lakshmikanth and his family
members.      Even in the plaint itself, plaintiff has
contended     property   bearing     No.119    belonging   to
Chikkanna i.e., his uncle and after his death, same has
been devolved on his son Sathish. In spite of the above
said pleadings, plaintiff has described the schedule
property as immovable residential property situated at
Nos.119 and 120, 2nd Cross, Srirama Temple Street,
Jeevanahalli, Cox Town, Bangalore for the reasons best
known to him.         Even measurement of the property
bearing No.120 shown in Ex.P.1 is not shown in the
plaint schedule. Apart from this, plaintiff has not at all
pleaded he has purchased the schedule property




                                                      Cont'd..- 17 -     O.S. No.6675/2008

bearing No.119 from the legal heirs of Chikkanna and
thereafter both sites were comprised in one block and
both sites are having boundaries as described in the
plaint schedule. Admittedly, neither Chikkanna nor his
legal representatives are not parties to the present suit
to claim right over the property No.119.    Under these
circumstances, at the out set this Court is of the
opinion that plaintiffs have failed to prove above said
Issues in his favour.14. Further, in the plaint plaintiff has contended
defendant recently started construction in the Southern
side of the suit schedule property and has deviated from
his demarcation of boundaries and encroached on the
suit schedule property and also property No.119 and
120/1.    Though in the plaint schedule, plaintiff has
contended schedule property is bearing Nos.119 and
120, but he has pleaded plaintiff encroached property
bearing   Nos.119   and   120/1    which   are   no   way
concerned to the plaintiff. Though P.W.1 in this regard
has reiterated averments of the plaint, but in the cross-
examination he has categorically admitted property
bearing No.120 has been allotted to share of his father
as per the recitals of Ex.P.1.      He has specifically
admitted property which is described as 'C' schedule in
Ex.P.1 has been allotted to share of his father. Though
P.W.1 has denied as per recitals of Ex.P.1 one sketch
which has produced along with Ex.P.1 was also
registered, but as per the recitals it is evident Ex.P.1




                                                  Cont'd..- 18 -       O.S. No.6675/2008

accompanied with one sketch which discloses which
property fallen to whose share.       Admittedly, the said
sketch has not been produced by the plaintiff for the
reasons best known to him. On perusal of contents of
Ex.P.1 wherein it is specifically mentioned 'C' schedule
property is delineated in green colour in the plan
annexed to the deed which is numbered as II. As I have
discussed above, said sketch has not been produced by
the plaintiff, hence it is fatal to the case of the plaintiff.
P.W.1 also admitted as per recitals of Ex.P.1, site
No.120/1 has been allotted to share of Gowramma
which is shown as 'E' schedule.           Further, he has
admitted site No.119 has been allotted to share of
Chikkanna and his family members which is shown as
'F' schedule in Ex.P.1.     Further, he has admitted the
measurement of the property allotted to his father
shown East 65 feet 9 inches, West 65 feet 3 inches,
North 22 feet and South 20 feet 6 inches. Whereas, in
the schedule he has shown different measurement and
different boundaries.15. In the cross-examination, he has specifically
admitted as per the recitals of Ex.P.1, boundary of the
property allotted to his father shown towards North
there is a road. He has admitted nowhere in Ex.P.1 it is
mentioned there is also road to the property allotted to
his father from Southern side.            Further, he has
admitted in Ex.P.1 it is shown towards East of property
No.120 there exist property of Gowramma. In the cross-Cont'd..- 19 -            O.S. No.6675/2008

examination, he has admitted he is in the custody of
survey map prepared by competent authority.                                In
support of his contention, he has produced P.T. sheet
which   are      marked         as        per   Exs.P.39       and      P.40.
Admittedly, in the above said documents, number of the
schedule property has not shown.                    Simply in the said
document it is mentioned -"¸ÀÜ½ÃAiÀÄ PÉëÃvÀæ ¸ÀASÉå 75, PÁPïìmË£ï ¦.n. ¹Ãmï
     £ÀA.112, £ÀUÀgÀ ªÀiÁ¥À£À ¸ÀASÉå 428gÀ ¦üÃ¯ïØ ¥ÀÅ¸ÀÛPÀzÀ £ÀPÀ®Ä"Except the above said contents, nothing has been
written in Exs.P.39 and P.40 in order to show these
documents are pertaining to the schedule property.16. P.W.1 in the cross-examination has also
admitted    at    no     point       of    time    measurement           and
boundaries of the property mentioned in Ex.P.1 have
been changed.         Further, he has admitted as per the
recitals of Ex.P.1, it is written there is only one entry
from the Northern side of the site No.120 and 120/1.
Further, he has admitted Sathisha and Gowramma are
not parties to the present suit and even they have not
filed any suit against the defendants. Further, he has
admitted in the plaint schedule he has described as Site
Nos.119 and 120.            Further, he has admitted he has
described both sites are comprised in one block and he
has shown boundaries of both the sites as they
comprised in one block.                   Further, he has admitted




                                                                       Cont'd..- 20 -         O.S. No.6675/2008

Sathisha has not given any authorization to him to
include site No.119 in the present case. Further, he has
admitted now Sathisha has constructed a new house in
Site No.119 and said Sathisha is residing in the said
property.   Further, he has admitted defendants of the
present case had purchased property Nos.118 and
118/1 prior to filing of this suit. He has also admitted
in Exs.P.39 and P.40, site No.120 has not been shown.
These are the admissions of P.W.1 not helpful to the
case of the plaintiff to prove the above said Issues in his
favour.17.    On careful perusal      of   the   documentary
evidence produced by the plaintiff which are marked as
per Exs.P.1 to P.47, those documents are not helpful to
the plaintiff to prove the above said Issues. Ex.P.2 is the
tax paid receipt, Ex.P.3 is the Khata certificate, Ex.P.4 is
the bill issued by the BWSSB, Ex.P.5 is the electricity
bill, Ex.P.6 is holding survey, Ex.P.6 is again Khata
certificate pertaining to site Nos.119 and 120.      At the
out set, defendants have not at all denied allotment of
site No.120 to the share of father of the plaintiff under
Ex.P.1, hence contents of those documents not helpful
to the case of the plaintiff. Ex.P.8 is the bill issued by
Balaji Studio. Ex.P.9 is the acknowledgement. Ex.P.10
is the copy of the legal notice.           Ex.P.11 is the
acknowledgement. Ex.P.12 is the endorsement issued
by Frazer Town Police Station. Ex.P.13 is the letter sent
by Advocate for the plaintiff with regard to advancement




                                                    Cont'd..- 21 -      O.S. No.6675/2008

of this case.        Ex.P.15 is the copy of the interimapplication. Exs.P.16 and P.18 are copies of the
complaint.     Exs.P.14, P.17, P.19, P.20, P.22 and P.23
are the postal documents. Ex.P.21 is again copy of the
complaint.         Ex.P.26    is again copy of     complaint.
Exs.P.29, P.31, P.33, P.34 and P.35 are the copies of
representations.       Contents of those documents not
helpful to the case of the plaintiff.         Ex.P.41 are the
sketches prepared by the Advocate for the plaintiff
which are shown as Annexures in respect of property
No.118.      Admittedly, above said sketches are marked
with subject to objection. Exs.P.42 and P.43 are again
copies of representations. Ex.P.44 is acknowledgement
issued by the B.B.M.P.            Exs.P.45 to P.47 are the
photographs.       Those documents are not sufficient for
the plaintiff to prove that he is in lawful possession over
the   suit    schedule       property   and   defendant   has
encroached to an extent of 2 feet on the Eastern side
that is facing 7th Cross Road towards rear which is the
Western portion encroaching 2½ feet as shown at
Annexure - Q and those documents are not sufficient
that defendant has encroached upon the Easter side of
the suit property and also property bearing Nos.119 and
120/1.18.     In    the      cross-examination,   P.W.1   has
specifically admitted nowhere in Exs.P.8, P.24, P.26 to
P.28, P.30, P.37 and P.38 as his name has not been
shown. Further, he has admitted he has no idea when




                                                       Cont'd..- 22 -       O.S. No.6675/2008

exactly survey has been conducted in respect of the suit
schedule property.        Further, he has admitted in
Exs.P.39 and P.40, nowhere it is mentioned name of the
owner of the property bearing Nos.118 and 120. He has
also admitted 5 sketches which are marked as per
Ex.P.41 is not proved by any competent authority. He
has also admitted as per contents of sketch No.4 which
is marked as per Ex.P.41 he has shown already
encroachment has taken place. So, admittedly Ex.P.41
sketches have been produced as on date of filing of the
suit.    In one breath plaintiff has contended during
pendency of the suit defendant has encroached the suit
schedule property and in another breath he has taken
contention as on the date of filing of the suit defendant
has already encroached portion of the suit schedule
property. Further, he has admitted though one Sathish
is owner of property bearing No.119, he has shown the
said property in the plaint schedule along with the
property No.120. These are the admissions of P.W.1 are
fatal to the case of the plaintiff and plaintiff is not able
to prove the above said Issues in his favour.19. Plaintiff has adduced evidence one Sagayraj as
P.W.2. In his evidence, P.W.2 has deposed plaintiff is
the owner of the property bearing No.120, 2nd Cross,
Srirama     Temple    Street,   Jeevanahalli,   Cox   Town,
Bangalore which is the suit schedule property. Further,
he has deposed defendant is the owner of adjacent
property bearing No.118 situated on the Eastern side of




                                                      Cont'd..- 23 -       O.S. No.6675/2008

the schedule property.      Further deposed defendantstarted constructing the residential building in property
No.118. While laying the foundation he started putting
pillars by breaking the plaintiff's Southern side wall and
encroached on plaintiff's property to an extent of 2 feet
on the 7th Cross Road site and extended up to 66 feet
and at the rear end, defendant has encroached 2½ feet
as shown at Annexure - Q before this Court.         P.W.2
further deposed complaint has been lodged by the
plaintiff with regard to illegal encroachment by the
defendant. In my considered view, this much evidence
of P.W.2 not helpful to the case of the plaintiff to prove
Issue Nos.1 to 4. Because in the cross-examination
P.W.2 has categorically admitted his house is situated
at a distance of 15 kilometers from the suit schedule
property. Further, he has admitted plaintiff is his close
friend.   He has also admitted he has no idea plaintiff
has stated before the Court that he is residing in a
rented premises. Further, he has admitted he has not
at all seen the documents pertaining to the suit
schedule property.    He has admitted plaintiff in the
plaint has described the property as Nos.119 and 120.
He has admitted plaintiff is the owner of the property
only in respect of Property No.120 and one Sathish is
the owner of property No.119 and now Sathish is
residing in the said property by constructing 3 floor
building.   He has admitted defendant of the present
case has constructed the house in property bearing
No.118 prior to filing of the suit. When that being the



                                                   Cont'd..- 24 -       O.S. No.6675/2008

case,    question   of    alleged     encroachment   by   the
defendant does not arise.           In his evidence he hasdeposed as he has personally seen the encroachment
area that defendant has encroached the schedule
property.    Admittedly, nobody has authorized him to
visit the schedule property and to ascertain the alleged
encroachment. These are the admissions of P.W.2 not
helpful to the case of the plaintiff to prove the above
said Issues in his favour.20. On the other hand, in order to resist the claim
of the plaintiff, defendant himself examined as D.W.1.
In his evidence, he has specifically deposed he has
purchased immovable property bearing No.118/1 under
two different sale deeds and under two different
rectification deeds.     D.W.1 further deposed authorities
of B.B.M.P. have amalgamated the above said two
immovable properties into one property and assigned
Khata No.118/1 which is more fully described as
written statement schedule property.        Further, he has
deposed he had approached the concerned authority
obtained sanction plan and put up residential building
over the written statement schedule property. He has
specifically deposed plaintiff in fact described the
schedule property in excess to what is actually available
and actually belonging to the plaintiff. He has deposed
schedule property described is incorrect and plaintiff
has played fraud and mischief upon the Court and
suppressed the material facts.          He has categorically




                                                      Cont'd..- 25 -        O.S. No.6675/2008

deposed he has not at all violated the order of the Court
as alleged by the plaintiff.       Further, he has deposed
neither Gowramma nor Sathisha have filed any suit
against him with an allegation that he has encroached
their property.        Evidence of D.W.1 supported by
documentary evidence produced by the defendant which
are marked as per Exs.D.1 to D.24.                Though D.W.1
cross-examined at length, nothing has been brought on
record to disbelieve his evidence. It is settled principles
of law that plaintiff who approaches the Court he has to
prove his case independently by adducing cogent,
material and corroborative evidence and he cannot
stand on the weakness defence of the defendant.
Defendant     has      produced        original    sale   deeds,
rectification deeds, Khata certificate, Khata extract,
approved plan, tax paid receipts.           Contents of those
documents helpful to the case of the defendant to resist
the claim of the plaintiff.21. At this juncture, it is relevant to mention that
it is settled principles of law that plaintiff cannot stand
on the weakness defence of the defendant.                    Even
assuming defendant has failed to establish contention of
the written statement, it is not a ground for the plaintiff
to prove his case.       Plaintiff has to prove his case
independently     by    adducing       cogent,    material   and
corroborative evidence.       In view of the above, plaintiff
has failed to prove his case on his own, hence he cannot
stand on the weakness defence of the defendant.                In




                                                          Cont'd..- 26 -        O.S. No.6675/2008

view of the above, my answer to above Issues are in
negative.22. ISSUE No.5 :      As rightly contended by the
defendant, this suit is bad for non-joinder of necessary
party because though in the plaint schedule property
number is shown as 119 which belongs to Sathisha as
per the say of the plaintiff, said Sathisha is not a party
to the suit.      Hence, my answer to above Issue is in
affirmative.23. ISSUE NOs.6 AND 7 : Since plaintiff has failed
to prove material Issues, certainly plaintiff is not
entitled for the relief of permanent injunction as well as
relief of mandatory injunction.      Hence, my answers to
above Issues are in negative.24. ISSUE No.8 : For my reasons and discussion
on the above Issues, I proceed to pass the following -ORDER

               Suit filed by the plaintiff against the
        defendant is hereby dismissed with cost.Draw decree accordingly.(Dictated to Judgment Writer, transcribed by him,
revised by me and after corrections, pronounced in open
Court on this the 2nd day of January, 2018.)


                    (PATIL NAGALINGANAGOUDA)
             VIII Additional City Civil and Sessions Judge,
An&/-                          Bengaluru.Cont'd..- 27 -     O.S. No.6675/2008

                    ANNEXURE1. WITNESS EXAMINED FOR THE PLAINTIFFS:Examined on:P.W.1     : S. Sridhar                     07-12-2015
P.W.2     : Sagayaraj A.                   06-09-20162. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:Ex.P.1    : Certified copy of partition deed
            dated 01-02-1982.Ex.P.2    : Tax paid receipt.
Ex.P.3    : Khata certificate.
Ex.P.4    : Receipt issued by the BWSSB.
Ex.P.5    : Electricity bill.
Ex.P.6    : Hiduvali certificate.
Ex.P.7    : Khata extract.
Ex.P.8    : Khata certificate.
Ex.P.9    : Acknowledgement.Ex.P.10   : Copy of notice dated 16-10-2008.
Ex.P.11   : Another acknowledgement.
Ex.P.12   : Endorsement issued by Frazer Town police
Ex.P.13   : Office copy of notice dated 28-10-2008.
Ex.P.14   : Postal receipt.
Ex.P.15   : Copy of application filed in
            O.S. No.6675/2008.Ex.P.16   : Copy of complaint.
Ex.P.17   : Postal receipt.
Ex.P.18   : Copy of notice dated 05-12-2008.
Ex.P.19   : Postal receipt.
Ex.P.20   : Postal acknowledgement.
Ex.P.21   : Copy of notice dated 05-12-2008.Cont'd..- 28 -       O.S. No.6675/2008

Ex.P.22    : Postal receipt.
Ex.P.23    : Postal acknowledgement.
Ex.P.24    : Receipt issued by Photo Centre.
Ex.P.25    : Bill issued by photographer.
Ex.P.26    : Copy of application/complaint.Exs.P.27   : Receipt issued by Photo Centre.and P.28
Ex.P.29    : Copy of complaint.
Ex.P.30    : Receipt issued by Photo Centre.
Ex.P.31    : Copy of complaint.
Ex.P.32    : Receipt issued by Photo Centre.Exs.P.33   : Copies of notices/complaints.
to P.35
Ex.P.36    : Acknowledgement issued by police.
Exs.P.37   : Receipts issued by Photo Centre.
and P.38
Exs.P.39   : Certified sketches issued by Land Records.and P.40
Ex.P.41    : Sketches.Exs.P.42   : Copies of complaint filed to police.
and P.43
Ex.P.44    : Acknowledgement issued by BBMP.
Exs.P.45   : Photographs.
to P.47
Exs.P.45(a) : Negatives of Exs.P.45 to P.47.
to P.47(a)3. WITNESS EXAMINED FOR THE DEFENDANTS:D.W.1      : A. Hanumanthappa                  28-01-20174.DOCUMENT MARKED ON BEHALF OF DEFENDANTS:Ex.D.1     : Certified copy of partition deed
             dated 23-01-1982.Cont'd..- 29 -      O.S. No.6675/2008

Ex.D.2     : Certified copy of sale deed
             dated 11-06-2008.
Ex.D.3     : Certified copy of sale deed
             dated 22-09-2008.
Ex.D.4     : Sale deed dated 23-06-2008.
Ex.D.5     : Sale deed dated 19-09-2008.
Ex.D.6     : Order dated 15-09-2008 passed by BBMP.
Ex.D.7     : Khata extract.
Ex.D.8     : Khata certificate.
Ex.D.9     : Approved plan issued by BBMP.
Exs.D.10   : Photographs
to D.15
Ex.D.16    : C.D. said to have contained Exs.D.10 to 15
Exs.D.17   : 2 Tax paid receipts.
and D.18
Ex.D.19    : Approved plan issued by B.B.M.P.
Exs.D.20   : 4 photographs.
to D.23
Ex.D.24    : C.D. said to have contained Exs.D.20 to 23



                  (PATIL NAGALINGANAGOUDA)VIII Additional City Civil and Sessions Judge,
An&/-                        Bengaluru.Cont'd..