Karnataka High Court
Sri S Prakash vs Sri Jambu Kumar Mutha on 13 June, 2017
RFA NOS 806/2000 C/W 296/2011
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
REGULAR FIRST APPEAL NOS.806/2000 C/W 296/2011 (DEC)
RFA 806/2000:
BETWEEN:
1. Sri.S.Prakash,
Major, S/o Seenappa,
Kumbarpet, Malur Town,
Kolar District.
2. Sri.A.Nagaraj,
Major, S/o Late Appanna Reddy,
Irabanahalli, Malur Taluk,
Kolar District.
3. Sri.R.Prabhakar,
Major, S/o M.B.Ramaiah,
Taluk Panchayath Member,
Nehru Extension,
Malur Town, Kolar District.
4. Sri.M.Y.Venkatesh,
Major, Vegetable Merchant,
Maruthi Extension,
Malur Town, Kolar District. ....Appellants
(By Sri. Papi Reddy, Advocate)
RFA NOS 806/2000 C/W 296/2011
2
AND:
1. Sri. Jambu Kumar Mutha,
Major, S/o Late B.S.G.Changanmal,
No.233 (108), Brigade Road,
Bangalore-560 025.
2. The Principal,
Govt. Pre-University College,
Malur Town, Kolar District.
3. Government of Karnataka,
By its Chief secretary,
Vidhana Soudha,
Bangalore-560 001. ....Respondents
(By Sri C.M.Nagabhushana for Sri B.Ramesh, Adv., for R1,
Sri P.G.C.Chengappa for C/R1, Sri A.G.Shivanna, AGA,
Smt. M.S.Prathima, AGA along with Sri.S.S.Mahendra
AGA's for R2 and R3)
This RFA is filed under section 96 of CPC, against the
Judgment and Decree dt:23.06.2000 passed in
O.S.No.125/1996 by the Addl. Civil Judge, Sr.Dn. and CJM.,
Kolar, decreeing the suit for declaration and permanent
injunction.
RFA 296/2011
BETWEEN:
1. The Principal,
Govt. Pre University College,
Malur-563 130,
Kolar District.
2. The Government of Karnataka,
by its Chief Secretary,
Vidhana Soudha,
RFA NOS 806/2000 C/W 296/2011
3
Bangalore-560 001. ...Appellants
* (By Sri A.G.Shivanna, learned AAG for appellants)
AND:
Mr.Jambu Kumar Mutha,
S/o Late B.S.G.Chagnmal,
No.233 (108), Brigade Road,
Bangalore-560 025. ...Respondent
(By Sri C.M.Nagabhushana for Sri.B.Ramesh, Advocate for R1)
* (Deleted)
This RFA is filed under Section 96 of C.P.C., against the
judgment and decree dated:23.06.2000 passed in
O.S.No.125/1996 on the file of the Additional Civil Judge
(SR.DN.) and CJM., Kolar, decreeing the suit for declaration and
permanent injunction.
These appeals coming on for further hearing this day, the
Court delivered the following:
JUDGMENT
These appeals arise out of the judgment and decree dated 23.06.2000 passed by the Senior Civil Judge, Kolar in O.S. No.125/1996. First respondent in both the appeals is the plaintiff before the trial Court. The appellant in R.F.A. No.296/2011 are the defendant Nos.1 and 2 before the trial Court. The appellants in R.F.A. No.806/2000 are * inserted vide court order dated 28.07.2017 & deleted vide court order dated 28.07.2017.
RFA NOS 806/2000 C/W 296/2011 4 the citizens of Malur Town. Since initially defendant Nos.1 and 2 did not file appeal against the impugned judgment, the appellants in R.F.A. No.806/2000 filed the said appeal with the leave of the Court on the ground that the matter involves public interest. Thereafter defendant Nos.1 and 2 filed R.F.A. No.296/2011. For the purpose of convenience parties in R.F.A.No.296/2011 will be referred with their ranks before the trial Court.
2. The plaintiff filed O.S. No.125/1996 before the Civil Judge Senior Division, Kolar for declaration of his title to plaint schedule 'B' property, for mandatory injunction against the defendants for removal of the structures put up on 'B' schedule property and for delivery of the same and for permanent injunction restraining the defendants from obstructing his peaceful possession and enjoyment of the plaint schedule 'A' property.
3. Plaint schedule 'A' property is the land bearing old Municipal sy. Nos. 206 of Malur Village and present RFA NOS 806/2000 C/W 296/2011 5 Municipal assessment No. 1882/1888 measuring 239 feet+ 219/ ½' east west and 377 + 307 and ½' north south in all measuring 1.38 guntas. Plaint 'B' schedule property is a part of the plaint 'A' schedule property measuring east west 377' and north south 34'.
4. The case of the plaintiff in brief is as follows:
The entire 'A' schedule property originally belonged to one Nanjunde Gowda. Plaintiff's father B.S.Chaganmal purchased the said property under the registered sale deed dated 23.06.1949. Since then plaintiff and father are/were in possession and enjoyment of the said property. In 1994 the defendants without any right or interest over the suit schedule property tried to interfere with the plaintiff's possession and enjoyment of the same. Therefore he filed O.S. No.235/1994. Pending that suit, in February 1996 the defendants trespassed into the 'B' schedule property. Therefore plaintiffs filed O.S.No.41/1996 in declaration and injunction. Plaint in O.S. No.41/1996 was returned RFA NOS 806/2000 C/W 296/2011 6 under Section 80 C.P.C. Taking advantage of that in April 1996 the defendants put up construction on plaint 'B' schedule property. Thus the suit.
5. The defendants filed their written statement and contested the suit. The gist of the written statement is as follows:
The market value of the suit schedule property is more than Rs.12 Lakhs. The suit is not properly valued and Court fee paid in sufficient. The Government acquired Sy.No.206 along with sy.No.196, 203, 204/1, 204/2, 204/3 and 205 of Malur Village under Section 8 of the land acquisition Act for public purpose namely for construction Municipal High School and hostels. After such acquisition Municipal High School was constructed in 1956. Subsequently under the gift deed dated 12.05.1976 Municipality handed over the Municipal High School along with the properties including building etc., to the Government. Since then the defendant is in possession of RFA NOS 806/2000 C/W 296/2011 7 11 acres 21 guntas of land which includes suit property.
Neither the plaintiff nor his ancestors have any right in the suit property and suit is filed only to knock off the Government property. The additional college building is constructed on the suit property by spending Rs.8 Lakhs. The defendants have constructed stone slab around high school to maintain the privacy. The suit is hit by Section 80 C.P.C.
6. On the basis of the above pleadings, the trial Court framed the following issues:
"1. Whether the plaintiff proves that he is the owner of plaint 'B' schedule property?
2. Whether the plaintiff proves that he is in lawful possession of plaint 'A' schedule property?
3. Whether the plaintiff proves that defendants are in unlawful possession of plaint 'B' schedule property?
4. Whether the plaintiff proves that defendants are unlawfully interfering with his possession of 'A' schedule property?
RFA NOS 806/2000 C/W 296/2011 8
5. Whether the plaintiff has complied with Section 80 C.P.C.?
6. Whether the suit is properly valued and court fee paid is sufficient?
7. Is the plaintiff entitled to the reliefs sought for?
8. What decree or order?"
7. Parties adduced evidence. In support of his case plaintiff got examined PW.1 and PW.2 and got marked Exs.P.1 to P.104. Defendant examined DW.1. On behalf of the defendants Exs.D.1 to D.13 were marked. The trial Court after hearing both parties decreed the suit on the following grounds:
(i) Plaintiff's title to plaint 'A' schedule property is proved by the registered sale deeds of his father and his predecessors in title namely Venkatachalaiah, Krishnamurthy Rao and B.S. Nanjundegowda dated:06.01.1936, 02.03.1943 and 23.06.1949; .
RFA NOS 806/2000 C/W 296/2011 9
(ii) Ex.P.4,Ex.P6 and Ex.P.7 the katha certificate and the encumbrance certificates show that from B.S. Nanjundegowda the katha was transferred to Chaganmal and stood in his name.
(iii) Ex.P.14 shows that plaintiff formed a layout in the suit property i.e.Sy.No.206 with approval of Town Municipality, Malur;
iv) The demand register and tax paid receipts show that the plaintiff and his predecessors have paid the tax of the suit property to the Municipality;
v) Exs. D3 to D9 only show that the Government proposed to acquire Sy.No.206 and there is nothing to show that the proposal was executed and an award was passed paying compensation to the owner.
(vi) The defendants claim that the Town Municipality, Malur has gifted the property to the Government under Ex.D2 but Ex.D2 does not cover the suit RFA NOS 806/2000 C/W 296/2011 10 property and only Sy.Nos.486 and 487 are conveyed to the Government under the said gift deed;
(vii) The survey sketch Ex.P.101 was prepared on measuring the property in the presence of the plaintiff and the first defendant that too at the request of the first defendant himself. Ex.P.101 shows that only Sy.Nos.204, 205 and a portion of 203 belongs to the first defendant and not the suit property;
viii) The plaintiff has complied Section 80 C.P.C;
ix) the suit is properly valued and Court fee paid is sufficient.
8. The defendants filed R.A.296/2011 with an application for condonation of delay. This Court dismissed the application and consequently, the appeal also. Defendants took up the matter before the Apex Court in C.A.10418/2014. The Hon'ble Apex Court allowed the Civil Appeal imposing cost of Rs.50,000/- and directed this RFA NOS 806/2000 C/W 296/2011 11 Court to consider the appeal on merits and that is how RFA 296/2011 came to be restored to the file.
9. Pending these matters, the appellants in RFA 806/2000 filed I.A.Nos. 1/2006, 2/2008 under Order XLI Rule 27 CPC and the appellant in RFA 296/2011 filed I.A.2/2008, I.A.1/12, I.A.1/16, I.A.2/16 to adduce additional evidence. Plaintiff/respondent filed objections to all these applications.
10. By the time the matter was posted for hearing, it was reported that Lower Court Records are destroyed. Therefore, the records are rebuilt and submitted to this court on the basis of the copies made available by the parties
11. Sri.Papi Reddy, learned counsel for the appellant in RFA 806/2000 and Sri Shivanna, learned Addl. Advocate General appearing for defendant/respondent in RFA NOS 806/2000 C/W 296/2011 12 RFA 296/2011 in their arguments seek to assail the impugned judgment on the following grounds:
(1) The Government acquired the suit schedule property by issuing a Gazette Notification in February 1948 vide the Gazette Notifications and awards Exs.D.2, D.3 and Exs.D.6 for the public purpose viz., for establishing Municipal High School and purchase of the property by the father of the plaintiff is subsequent to that, therefore the said sale deed does not give any title for the plaintiff; (2) The Municipal Council constructed the building and was running a High School and later Town Municipal council handed over the said school under the gift deed -
Ex.d.2. Therefore, the Government becomes the owner of the property;
(3) The suit land was the un-assessed Government land. Therefore, the question of passing award and disbursing the compensation does not arise. Therefore, trial Court's finding that the notification for acquisition of the land has RFA NOS 806/2000 C/W 296/2011 13 not culminated into the award and there is no proof of disbursement of compensation to the owners is incorrect; (4) It is not open to the plaintiff to challenge the land acquisition proceedings in a civil suit. (5) Since the suit is for possession, plaintiff has to succeed on the strength of his own evidence, but cannot rely on the weakness of the other side and that the trial Court failed in decreeing the suit on the ground that the land acquisition is not proved.
12. In support of his arguments, learned counsel relied on the following judgments:
(i) Mahendra Enterprises (R) -vs- Commissioner, Bangalore City Corportion & Others,1987(3) KLJ 331;
(ii) Ramachandra Sakharam Mahajan -vs- Damodar Trimbak Tanksale(dead) and Others, 2007(6) SCC 737;
(iii) K.Gopala Reddy (deceased) by LRs -vs-
Suryanarayana and Others, 2004(1) KCCR 662;
13. As against that, Sri C.M.Nagabhushan, learned counsel for Sri.B.Ramesh for first respondent in his RFA NOS 806/2000 C/W 296/2011 14 arguments seeks to justify the impugned judgment in the following grounds:
(i) DW1 himself admits that under the gift deed Ex.D.2 -
the suit property is not conveyed to the Government. Therefore, Ex.D.2 does not convey any title to the Government;
(ii) The defendants failed to prove their defence of acquisition of the suit property by producing any valid award;
(iii) The contention that the land was Government's un- assessed land, therefore, no award is passed and no compensation is paid, is irreconcilable since there is no need for the Government to acquire its own property.
In support of his arguments, learned counsel relied on the following judgments:
(i) Sharada Devi -vs- State of Bihar, AIR 2003 SC 942
(ii) Santokh Singh and another -vs- Mahant Iqbal Singh, (2000) 7 SCC 215;
(iii) The Union of India -vs- Pandurang Kashinath More, AIR 1962 SC 630;
RFA NOS 806/2000 C/W 296/2011 15
(iv) State of Andhra Pradesh -vs- Kalva Suryanarayana and Others, 1992 (2) SCC 732;
(v) Sri Bhimeshwara Swamy Varu Temple -vs- Pedapudi Krishna Murthi and Others,1973(2) SCC 261;
(vi) Anathula Sudhakar -vs- P Buchi Reddy (dead) by LRs. And Others, (2008) 4 SCC 595;
14. Having regard to the above rival contentions of the parties, the question that arises for consideration of this Court is:
"Whether the impugned judgment of the
decreeing the suit for declaration and
possession is sustainable?"
15. Plaintiff claims title to the property through Exs.P.1 to P.3 - The sale deeds were in favour of his father and their transferors whereas the defendants' claim is two fold:
16. Firstly, they claim that the Government acquired the property for public purpose under Land RFA NOS 806/2000 C/W 296/2011 16 Acquisition Act under Gazette notification at Exs.D.3 and D.6 for the benefit of Malur Town Municipal Council;
17. Secondly, the defendants acquired the title under Ex.D.2 - the gift deed executed by the Town Municipal body in favour of the Government.
18. It is not the case of the Government that the sale deeds at Exs.P.1 to P.3 are concocted one. The contention of the defendants is that once the property is notified for acquisition, the subsequent acquisitions are void. The recitals in the said document show that the land bearing Sy.Nos.486 and 487 are the immovable properties gifted to the Government under the said document. The admission of DW1 coupled with the RTCs - Exs.P.8 and P.9 show that Sy.Nos.486 and 487 are numbered as Sy.Nos.203 and 204. Therefore, what are conveyed under Ex.D.2 are the lands bearing Sy.Nos.203 and 204 and not Sy.No.206.
RFA NOS 806/2000 C/W 296/2011 17
19. As regards Exs.D.3 and Ex.D.6, sEx.D.3 is the alleged Gazette Notification dated 06.02.1948 issued under Section 6 of the Land Acquisition Act proposing to acquire certain lands for the purpose of extension of the town. In that Sy.No.206 is also shown as one of the property proposed for acquisition and in the khatedar's column, it is shown as assessed waste land. In Ex.D.6 the purported award in respect of acquisition of Sy.No.206 it is said that the land is shown as assessed waste land in which there are no private rights, therefore, no award.
20. Firstly, to prove this document no person from the revenue department is examined. Secondly, imposition of assessment to the Government land itself is unheard off. ASSESSMENT - UNDER WHAT PLORVISION IT HAS BEEN ASSESSED. SEC 67,80 AND 83 OF THE KARNATAKA LAND REVENUE ACT.
It is not known if the Government assesses its own land, from whom it recovers the same. Further, if it was the RFA NOS 806/2000 C/W 296/2011 18 Government land, where was the need for the Government to acquire its own land by following the procedure under the Land Acquisition Act.
21. In Sharadadevi's case referred to supra, with reference to Sections 4,18 and 30 of the Land Acquisition Act, 1895, the Hon'ble Apex Court has held as follows:
"The State does not acquire its own land for it is futile to exercise the power of eminent domain for acquiring rights in the land, which already vests in the State. It would be absurdity to comprehend the provisions of Land Acquisition Act being applicable to such land wherein the ownership or the entirety or rights already vests in the State. In other words, the land owned by the State on which there are no private rights or encumbrances is beyond the purview of the provisions of the Land Acquisition Act."
22. In the case on hand also the sale deeds at Exs.P.1 to P.3, the encumbrance certificates Exs.P.6 and P.7, 13 katha extracts and the assessment register extract
- Exs.P.10 and P.11, kandayam receipts at Exs.P.80 to 81, demand register extract - Ex.P.83 show that plaintiff, his RFA NOS 806/2000 C/W 296/2011 19 father and his predecessors-in-interest were in possession of the property. Ex.P.3 is the sale deed dated 06.01.1936 executed by D.Krishna Murthy Rao in favour of Venkatachalaiah selling the property to him. Ex.P.2 is the sale deed dated 02.03.1943 executed by N.Venkatachalaiah to B.S.Nanjunde Gowda in respect of the suit property. Ex.P.1 is the sale deed executed in favour of the plaintiff's father on 23.06.1949. As already pointed the genuiness of these documents is not questioned.
23. As against that, a legal issue is raised saying that the sale in favour of the father of the plaintiff is after the issue of Land Acquisition Act, therefore, the same is void. But, the other documents i.e., Exs.P.2 and P.3 are much earlier to that. Therefore Ex.P.1 to P.3 have a presumptive value under Section 90 of the Indian Evidence Act. Having regard to these documents and the admissions of DW1 himself, the trial Court rightly held that the land was owned and possessed by the father of RFA NOS 806/2000 C/W 296/2011 20 the plaintiff and his predecessors-in-title and the acquisition of the same is not proved.
24. Further Ex.P.101 and 102 are the survey report and the survey sketch issued by the Taluka Surveyor, Malur. DW1 admits that the Taluk Surveyor, Malur conducted the said survey in respect of Sy.No.206 and the school lands. at his request and in his presence. In Ex.P.101 and 102 it is stated that on survey it is found that the defendants have encroached around 6 guntas of land in Sy.No.206 and constructed the compound wall on the same. The Surveyor has also shown Sy.No.203 measuring 1 acre 7 guntas, Sy.No.204 measuring 6 acres 17 guntas, Sy.No.205 measuring 3 acres 13 guntas in all 10 acres 37 guntas as the college property. Further, DW1 in his cross examination admits that there are no documents to show that possession of the suit schedule "A" property was taken from the plaintiff. He admits that either before the gift deed or thereafter, no land is given to their possession.
RFA NOS 806/2000 C/W 296/2011 21
25. Ex.P.14 is the layout plan approved and issued by the Town Municipal Office, Malur which shows that the plaintiff intended to make a layout in the suit property and the Malur Town Municipality has approved the same. If it was the Government land, certainly the Town Municipal Council was not approving the same.
26. Exs.P.6 and 7 are the encumberance certificates showing that from 06.11.1936 to 03.03.1943 the suit property was standing in the name of Venkatachalaiah and thereafter, it was transferred to the name of Najundegowda and from 01.06.1949 to 18.01.1985 the property was held by Nanjundegowda's successor Chaganmal.
27. Ex.P.82 is the copy of the resolution of Town Municipal Council, Malur which shows that the Municipality decided to sue Krishna Murthy Rao - the erstwhile owner for non-payment of the property tax during 1936.
RFA NOS 806/2000 C/W 296/2011 22
28. Ex.P.5 is the survey sketch prepared at the instruction of the Chief Officer, Town Municipality in respect of Sy.Nos.206, 203, 207 and the adjacent rent in the year 1977. Even in that sketch, the high school is shown to have exist on the northern boundary of Sy.No.206. All the above said documentary evidence showed that the plaintiff's father and their predecessors- in-title were the owners of the property.
29. The Apex Court in STATE OF ANDHRA PRADESH's case referred to supra held that question whether land was acquired by the Government or not is one of fact. It was held that the question decided by the Courts below on the basis of relevant evidence holding that though acquisition notification had been issued but no compensation was paid nor possession taken by govt. and hence title of predecessors-in-interest of the plaintiff respondent had not extinguished. It was further held that when the gazette notification was produced at the required time, no additional evidence to produce the said Gazette RFA NOS 806/2000 C/W 296/2011 23 Notification can be allowed. The facts of this case are also similar to the facts of the said case.
30. In this case also since the evidence adduced by the plaintiff showed that himself and his predecessors-in- title were in possession of the property under valid title, in the absence of evidence of acquisition of the said property paying the required compensation, the contention that the sale deed in favour of the father of the plaintiff is illegal does not sustain.
31. When the acquisition of the property by paying the compensation to the title holders is not proved, the right of the plaintiff or his father in the property does not get extinguished. Therefore, the contention of the learned Addl. Advocate General that the plaintiff cannot question the acquisition proceedings or the award in the Civil Court does not sustain and the citations relied upon by him are not applicable. The trial Court looking into all these RFA NOS 806/2000 C/W 296/2011 24 aspects held that the title of the plaintiff is proved and that finding does not warrant any interference by this Court.
32. Reg. the frame of the suit:
The learned Addl. Advocate General and Sri Papi Reddy contend that since the title of the plaintiff is seriously in dispute, he should have sought for declaration of title in respect of the entire suit schedule property and not only in respect of "B" schedule property. Therefore, the suit is not maintainable.
33. As against that, counsel for the plaintiff contends that in respect of the vacant site seeking relief of declaration is not required. The Apex Court in Anathula Sudhakar's case referred to supra extensively held in which of the cases seeking declaration is necessary. It is held as follows:
RFA NOS 806/2000 C/W 296/2011 25 " 21. To summarise the possession in regard to suits for prohibitrary injunction relating to immovable property, is as under:
"(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy, where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter."
34. In this case also, since the encroachment is only over "B" schedule property, seeking declaration of title only in respect of "B" schedule property is sufficient. Therefore, the trial Court has rightly accepted the contention.
35. Reg. Conformity of Order XX Rule 5:
Learned Addl. Advocate General contends that the trial Court has not dealt with each issue and answered them separately. Therefore, the impugned judgment is in RFA NOS 806/2000 C/W 296/2011 26 breach of Order XX Rule 5. A perusal of the judgment of the trial Court indicates that it has dealt with each issue separately and answered them. Therefore, there is no merit in that contention.
36. Reg. Identity of the property:
Learned Addl. Advocate General filed an application for production of additional evidence. He contends that Sy.No.206 was included in gramatana and there was revision of the property numbers and the property bearing Sy.No.206 is situated elsewhere and not within the area of Municipal High School, therefore to fix up the identity of the property additional evidence is required.
37. In the written statement or in the evidence of the parties, the identity of the property is not disputed. Therefore, such contention cannot be permitted to be raised for the first time in the appeal by way of additional evidence.
RFA NOS 806/2000 C/W 296/2011 27
38. The appellants in RFA 806/2000 seek to produce additional evidence by way of I.A.1/2006. The first document produced is the letter dated 01.09.2005 said to be issued by Chief Law Officer, Town Municipal Council and the second one is the sketch purported to be issued by the Town Planning Authority, Malur. The first document has come into existence subsequent to the filing of the suit and second document does not bear any date or seal.
39. As regards I.A.2/2008 filed by learned HCGP under Order LXIL Rule 27 read with Section 151 CPC seeking to produce additional documents at Sl.Nos.5 to 9 have also come into existence subsequent to the filing of the suit. The documents sought to be produced at sl.nos.3 and 4 are all ready produced by the defendant. Therefore, I.A.nos.1/06 and 2/08 in RFA 806/2000 deserve no merit.
40. So far as I.A.No.1/12, 1/16 and 2/16 in RFA 296/11, no acceptable explanation is given for non- production of the same before the trial Court. More over, RFA NOS 806/2000 C/W 296/2011 28 the evidence on record is sufficient to dispose of the matter. Therefore, none of those applications satisfy the requirements of Order XLI Rule 27 C.P.C.
41. The defendants filed I.A.1/17 before this Court under Order XXVI Rule 9 CPC for issue of commission to ascertain the identity of Sy.No.206 measuring 1 acare 38 guntas with reference to new sketch and demarcate the same. It is contended that Malur Village was surveyed in 1884-85 initially and was resurveyed in the year 1923 and after acquisition of the land in the year 1948 new katha was assigned as katha No.1339 and Sy.No.206 was assigned to some other property in the village revenue map. That means to say at this length of time, the defendant's contend that Sy.No.206 is some other land and not the suit property.
42. As already pointed out, no such defence raised in the written statement. After lapse of 20 years at the appellate stage for the first time, such contention is being RFA NOS 806/2000 C/W 296/2011 29 raised. Therefore, I.A.1/17 for collection of evidence through commission cannot be issued, that too, at the appellate stage. Therefore I.A.1/17 not only lacks merit but also lacks bonafides.
43. For the aforesaid reasons, both the appeals and I.A.1/2006, I.A.2/2008 in RFA No.806/2000 and I.A.1/12, I.A.1/16, I.A.2/16 and I.A.1/17 in RFA No. 296/2011 are hereby dismissed with costs.
44. The judgment and decree in O.S.No.125/96 passed by the Addl. Civil Judge (Sr.Dvn.) & CJM, Kolar is hereby confirmed. The defendants are hereby directed to handover the vacant possession of the suit schedule "B" property within 60 days from the date of this Judgment.
Sd/-
JUDGE Hr/brn