Aleema Bi vs The Commissioner, Bruhath Bangalore Mahanagara Palike

Anand Byrareddy, J.—Heard the learned Counsel for the appellant. The appellant was the plaintiff before the trial court and had filed a suit for declaration and mandatory injunction to claim that the suit property was a site measuring 60'' x 60'', at No. 8, II cross, Magadi Road, Bengaluru. It was claimed that the husband of the plaintiff had purchased the suit property on 24.8.1974 from one Chikkahanumantappa under a registered sale deed and khata was effected in the name of the plaintiff on the death of her husband and the measurement of the property was shown as 60'' x 60''. The husband of the plaintiff had died in the year 1981.

It was the further case of the plaintiff that the respondent Bruhat Bengaluru Mahanagara Palike (BBMP) had collected layout charges in a sum of Rs. 1,400/- and in the receipt, it was indicated that the measurement of the site was 60'' x 60''. The appellant, on the death of her husband, had made an application seeking transfer of khata and to her shock, it was found that the property was described as measuring (60''+47'')/2x47'' and therefore, she had addressed a letter questioning the discrepancy with regard to the measurement of the property. Inspite of her repeated representations, there was no move on the part of the respondent to carry out any correction and it is that which prompted a suit being filed after exchange of legal notice.

The defendant had entered appearance and had contested the suit to claim that the suit schedule property measured (60''+47'')/2 x 60'' and accordingly an endorsement also had been issued. On the basis of the said pleadings, the court below had framed the following issues:

"1. Whether the plaintiff proves that she is in actual and physical possession of the suit schedule property, measuring 60 feet and 60 feet having inherited the same from her late husband Shri Abdul Rawooof?

Whether the plaintiff proves that the defendant, while effecting change of khatha of the suit property, after the death of the plaintiffs husband, showed measurement of the schedule property to the extent of (60 feet + 48 feet)/2 x 47 feet only, which is illegal and contrary to the existing facts?

Whether the plaintiff proves that the defendant has encroached the remaining portion of the suit schedule property and she is eligible for compensation as alleged?

Whether the plaintiff is entitled to a declaratory decree as prayed for?

Whether the plaintiff is entitled to a consequential relief of direction to the defendant as prayed for?"

The court below has answered issues 1 to 5 together and has opined that the documents produced by the plaintiff were inadequate to declare that the plaintiff actually was holding the property measuring 60'' x 60'' and has summarily rejected the suit. In the appeal, this court found that since there was no spot inspection conducted, that a spot inspection be conducted to ascertain the actual measurement of the suit schedule property. A Commissioner having been appointed, has now filed a report, indicating the dimension of the suit schedule property as follows:--

"East: 26 feet 4 inches

West: 46 feet 7 inches

North: 55 feet 6 inches

South: 46 feet 2 inches and thereafter the southern boundary turns towards North and extends upto 19 feet and thereafter turns towards East and runs upto 3 feet and again turns North and runs upto 2 feet 4 inches and again turns towards East and runs upto 13 feet 8 inches and joins the eastern boundary as shown in the sketch."

Therefore, the controversy is as to how the suit property which was initially found to be measuring 60'' x 60'' stood reduced to its present dimensions.

The learned Counsel for the appellant would seek to furnish an answer in stating that there is a path way abutting the suit property and this was never a pathway for public use and it was a part of the suit schedule property. Since the plaintiff and her representatives were also using the said area as a pathway and taking advantage of the same, the public were also using the same as a pathway and thus, it had been surreptitiously converted into a pathway and was treated as a conservancy. It is the plaintiffs claim that there was no acquisition proceedings preceding the utilization of the part of the suit property as conservancy. Hence, the learned Counsel would submit that apparently a portion of the suit property has been encroached by the respondent which has been completely overlooked by the court below and the fact that the earliest document in point of time, namely, the khata certificate effected in the name of the husband of the plaintiff, indicating the extent of the property as being 60'' x 60'', the subsequent diminution of the sital area is apparently by virtue of such encroachment by the respondent and hence seeks that there be modification of the judgment and decree and declare that the appellant is entitled to recover the encroached portion or compensation in lieu thereof.

On the other hand, the learned Counsel for the respondent would vehemently oppose the appeal and would submit that the cause of action as sought to be pleaded by the appellant is vague. There is no indication as to when exactly the alleged encroachment is said to have taken place. If at all there was any such encroachment by the respondent, the cause of action for the plaintiff would have arisen and in the absence of indication of the date on which any such encroachment has taken place, the suit of the appellant would have to be dismissed for want of cause of action. Further, the suit property having been purchased in the year 1974 and the suit having been filed in the year 1995, would be clearly barred by time and hence, there is no substance in the case of the appellant that the respondent has encroached the property and has not initiated acquisition proceedings before utilizing a portion of the suit area for the purpose of forming conservancy lane.

There is indeed substance in the objection raised by the learned Counsel for the respondent. However, the fact remains that there is initial indication of the suit property measuring 60'' x 60'' and if over time the said land has been utilized for the purpose of a conservancy, the respondent, being a public authority, would not be enabled to claim the law of limitation in asserting that the plaintiff ought to have approached the court at the appropriate time in seeking any relief. The respondent, being a public authority, is not expected to utilize the private property without due process of law and payment of appropriate compensation, but to address any such claim of the plaintiff in a civil suit would be beyond the scope of the court''s jurisdiction. Consequently, even the appellate court would have its own limitations in addressing any such relief being moulded in favour of the appellant - plaintiff

Therefore, while observing that there has been diminution of the plaintiffs property over the years, which apparently has been utilized in the formation of the conservancy lane, remedy that may be available to the plaintiff, even as on date, in respect of such unauthorized utilization of the sital area of the plaintiff, is left open.

The appeal is disposed of.