Bangalore District Court
Raghavendra Rao B S vs Bhageerathi on 3 February, 2025
KABC010048152020
IN THE COURT OF XXXV ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU (CCH-36)
DATED ON THIS THE 3rd DAY OF FEBRUARY 2025
Present: Sri.J.V.Kulkarni, B.Sc., L.L.B.,
XXXV Addl. City Civil & Sessions Judge, Bengaluru.
O.S.No.1300/2020
Plaintiffs : 1. Sri.B.S.Raghavendra Rao,
S/o.H.A.Subbarao,
Aged about 56 years,
R/at No.331,
Sreenidhi, 14th Cross,
2nd Block, R.T.Nagar,
Bangalore-560 032.
2. Sri.Bhaskar Rao,
S/o.H.A.Subbarao,
Aged about 51 years,
R/at No.26, Ist Floor,
7th Main, 10th Cross,
Vasanthappa Block,
CBI Road, Ganganagar,
Bangalore-560 032.
(By Sri/Smt.M.S.,Advocate)
-Vs-
Defendants : 1. Smt.Bhageerathi,
W/o.Late Nanjundappa,
Aged about 73 years.
2. Shanthamma,
2
O.S.No.1300/2020
W/o.Late Sathya Prakash,
58 years.
3. Smt.S.Chandrika,
D/o.Late Sathyapraksh,
37 years.
4. Sri.S.Sudeendra,
S/o.Late H.N.Sathaya Prakash,
Aged about 34 years.
5. Sri.N.Nagabhushana,
S/o.Late Sathyaprakash,
Aged about 32 years.
Plaintiff No.2 to 5 are r/at No.46,
Chowdeshwari Nilaya, Jothi Layout,
Yelachenahalli, Kanakapura road,
J.P.Nagar Post, Bangalore-560 078.
6. Sri.H.N.Pushpanath,
S/o.Late Nanjundappa,
Aged about 62 years.
7. Smt.Padmavathi,
D/o.Late Nanjundappa,
Aged about 54 years.
8. Sri.H.N.Janardhana,
S/o.Late Nanjundappa,
Aged about 57 years.
9. Smt.N.Jayalakshmi,
D/o.Late Nanjundappa,
Aged about 52 years.
10. Sri.H.N.Ashwathnarayana,
S/o.Late Nanjundappa,
Aged about 53 years.
3
O.S.No.1300/2020
11. Smt.N.Radha,
D/o.Late Nanjundappa,
Aged about 47 years.
12. Sri.H.N.Kuchela,
S/o.Late Nanjundappa,
Aged about 49 years.
13. Sri.H.N.Muralidhara,
S/o.Late Nanjundappa,
Aged about 46 years.
14. Sri.H.N.Sujatha,
D/o.Late Nanjundappa,
Aged about 44 years.
15. Sri.H.N.Nagesh,
S/o.Late Nanjundappa,
Aged about 41 years.
16. Smt.Asha,
D/o.Late Nanjundappa,
Aged about 40 years.
Defendant No.1 and 6 to 16 are
R/at Chunchagatta Village,
Uttarahalli Hobli,
Bangalore South Taluk,
Bangalore-560 062.
17. S.N.Raja,
S/o.Late Srinivasaiah,
Aged about 83 years,
R/at Samathenahalli,
Hanumagondanahalli Hobli,
Hosakote Taluk,
Bangalore Rural District.
(Sri./Smt.M.D., advocate for defendant
Nos.1, 6, 8, 10 to 13, 15 & 16, defendant
Nos.2 to 5, 7, 8, 9, 11 & 14 - Exparte)
4
O.S.No.1300/2020
Date of institution of the suit : 17-02-2020
Nature of the suit : Declaration & Possession
Date of commencement of : 07-12-2023
recording of the evidence
Date on which the judgment : 03-02-2025
was pronounced
Total duration : Years/s Month/s Day/s
04 11 16
(J.V.KULKARNI)
XXXV Addl.City Civil &
Sessions Judge, Bengaluru
JUDGMENT
The plaintiffs have filed this suit for declaration of their title, possession and injunction in respect of 'D' schedule property mentioned in the schedule.
2. After marshaling the fact, the gist of the case of plaintiffs is that:-
The father of the plaintiffs is H.A.Subbarao, he had brother by name Nanjundappa. The father of the plaintiffs has filed occupancy rights in respect of Sy.No.10, measuring 2 acre 28 guntas, Sy.No.73 measuring 5 acre 20 guntas situated at Chunchagatta village, Uttarahalli Hobli, Bengaluru South Taluk.5
O.S.No.1300/2020 According to the plaintiffs, one Sampangiramaiah is the propositus of the family. He was Shanubhog of the village. He had three sons by name Krishnappa, Venkatarayappa and Dasappa.
After the death of Sampangiramaiah, Venkatarayappa was continued as Shanubhog of the village, thereafter, Nanjundappa becomes Shanubhog of the village.
It is the case of the plaintiffs that on 15-09-1954, the Government of Mysore has acquired 1 acre 30 guntas in 5 acres 20 guntas of Sy. No.73 for the purpose of extension of Village Chunchagatta. The remaining 3 acre 30 guntas was equally divided to H.A.Subbarao and Nanjundappa, in which each have got 1 acre 35 guntas.
According to the plaintiffs, there was a suit filed between H.A.Subbarao and Nanjundappa in O.S.No.259/1963. In the said suit, the compromise was arrived between both of them, wherein, in land Sy. No.73, 1 acre 35 guntas including 3 guntas of road kharab allotted to Nanjundappa and 1 acre 35 guntas allotted to the share of Subbarao. The property belonging to Nanjundappa includes dwelling house in South Eastern side.
6
O.S.No.1300/2020 According to the plaintiffs, after enforcement of Mysore Village Offices Abolition Act, 1961, all the village offices are abolished, the lands attached to service inams vested with the Government. The plaintiffs contended that Nanjundappa has filed application for re- grant on 29-06-1966 in respect of Sy. No.73 measuring 1 acre 35 guntas in his name and 1 acre 35 guntas in the name of his brother Nanjundappa. But the parties have granted total 5 acres 13 guntas in Sy. No.73 and 2 acre 28 guntas in Sy. No.10.
The plaintiffs contended that H.A.Subbarao and Nanjundappa have filed application, the defendant No.17 has influenced the revenue officials to file the false report.
It is the case of the plaintiffs that H.A.Subbarao and Nanjundappa have sold 20 guntas in Sy.No.73 in favour of Puttamma. Accordingly, name of the father of the plaintiffs entered to 1 acre 16 guntas, name of Nanjundappa entered to the extent of 1 acre 35 guntas. The land of Nanjundappa was renumbered as Sy. No.73/2. The land Sy. No.73/1 was continued in the name of the father of the plaintiffs. The plaintiffs stated that Subbarao died on 18-01-1999, names of the plaintiffs entered based on M.R. No.8/2004-2005.
7
O.S.No.1300/2020 The plaintiffs contended that Nanjundappa has filed Misc. Application No.7/2005-2006 and the Special Deputy Commissioner, Bengaluru , he allowed the Appeal on 2-3-2009.
The plaintiffs contended that they have filed W.P.No.11411- 11414/2009(KLR) before the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka ordered for resurvey of land. The plaintiffs contended that they have filed O.S.No.395/2009 before Principal City Civil Judge, Bengaluru Rural District, wherein, they have filed I.A. under Order 39 Rule 1 and 2 of CPC. It was dismissed. The plaintiffs filed M.A.No.35/2009 before Addl Dist.& Sessions Judge, Bengaluru Rural, in the said Appeal, the defendants appeared and filed memo stating that they are constructing house in an area of 40ft x 60ft, if any adverse order is passed in the Appeal, they are ready to surrender it. Subsequently, the M.A was disposed off.
According to the case of the plaintiffs, the revenue officials by violating the injunction order and the order passed by the Hon'ble High Court in the Writ Petitions created 4 phodes. Sy. No.73/1 measuring 1 acre 14 guntas allotted to the plaintiffs, Sy. No.73/2 allotted to Nanjundappa, the remaining 2 acre 8 guntas. Sy. No.73/3 8 O.S.No.1300/2020 measuring 4 guntas allotted to Nanjundappa and Sy. No.73/4 measuring 1 acre 3 guntas was acquired to the extension of village.
The plaintiffs contended that the defendants have denied the title in respect of 'D' schedule property which is measuring 14 guntas of village Chunchagatta and they are in illegal possession of the same. Therefore, they sought to declare their ownership and direct the defendants to vacate and hand over the vacant possession of 'D' schedule property. Hence, they prayed to decree the suit.
3. The suit summons issued to the defendants. The defendant Nos.2 to 5 were placed exparte on 16-03-2020, the defendant Nos.7, 9 and 14 were placed exparte on 23-11-2021. The defendant Nos.1, 6, 8, 10 to 13, 15, 16 were appeared through their counsels.
4. The defendant No.13 has filed the written statement, he admitted the relationship between the plaintiff and defendant Nos.1 to 16. The defendant No.13 also admitted the previous litigation took place between the family members of H.A.Subbarao and Nanjundappa.
9
O.S.No.1300/2020 The defendant No.13 contended that the suit filed by the plaintiffs bearing O.S.No.395/2009 was dismissed on 6-11-2019. He took contention that Subbarao has sold 20 guntas to Siddamma in his share. Sy. No.73/2 was converted into non agricultural land by virtue of order dated 24-05-1976. H.A.Subbarao has sold 3 ¼ Guntas in the converted land. The defendant No.13 categorically denied the encroachment made by them in 'D' schedule property. The defendant No.3 also denied the fact that by encroaching 'D' schedule property, they have constructed house in 'D' schedule property which is liable to be demolished and vacant possession to be handed over to the plaintiffs.
The defendant No.13 contended that majority of the land Sy. No.73 of Chunchagatta village was sold. Based on the documents only, the ADLR has surveyed the land Sy. No.73 and created four divisions. There is no illegality committed by the land survey office. The plaintiffs have no right, title or interest over the 'D' schedule property. Therefore, they prayed to dismiss the suit.
5. The defendant Nos.1, 6, 8, 10 to 12, 15 & 16 have filed memo adopting the written statement filed by the defendant No.13. 10
O.S.No.1300/2020
6. Based on the pleadings of the parties, My predecessor in office has framed the following:-
1. Whether the plaintiffs prove that they have acquired valid right, title and interest over the suit schedule- 'D' property as claimed in the plaint?
2. Whether the plaintiffs prove that defendants are liable to vacate and deliver vacant possession of suit schedule 'D' property by demolishing the structures constructed on schedule 'D' property as claimed in the plaint?
3. Whether the plaintiffs are entitle for the reliefs as claimed in the plaint?
4. What order or decree?
7. The trial commenced. The plaintiff No.1 examined as P.W.1. Exs.P.1 to P.43 marked on behalf of the plaintiffs and they closed their side. The defendant No.6 examined as D.W.1. Exs.D.1 to D.38 were marked on behalf of the defendants and they closed their side.
8. I heard the arguments of the learned counsel for the plaintiffs and learned counsel for the defendants.
9. My findings to the above issues are as follows:- 11
O.S.No.1300/2020 Issue No.1 : In negative Issue No.2 : In negative Issue No.3 : In negative Issue No.4 : As per final order for the following:-
REASONS
10. Issue No.1:- The heavy and initial burden is on the plaintiffs to prove that they are the owners of the 'D' schedule property which is measuring 15 guntas bounded on East land Sy. No.70, West land Sy. No.58, North land Sy. No.59 and South Sy. No.73/2. After meticulous examination of the pleadings, documents and the oral evidences of the parties, I could make out a case that there is a dispute regarding the identity of the property. There are few admitted facts that the father of the defendant No.1 was a teacher, that father of plaintiffs was Shanubhog of Chunchagatta village. It is also undisputed fact that there is no dispute regarding the Sy. No.10, the dispute is only in respect of Sy. No.73. Both parties have admitted that the total extent of Sy. No.73 was measuring 5 acre 20 guntas. They have also admitted the fact that after enforcement of Mysore Village Offices Abolition Act, 1961, the land Sy. No.73 was taken to the possession of the Government and 12 O.S.No.1300/2020 the re-grant application was filed by Subbarao and Nanjundappa. It is also undisputed fact that entire 5 acre 20 guntas re-granted in favour of Subbarao and Nanjundappa. It is not specifically denied by the defendants that 20 guntas of land sold by Subbarao and Nanjundappa in favour of Puttamma. Similarly, 20 guntas of land sold by Subbarao in favour of Siddamma.
11. It is also admitted fact that the Government of Mysore has acquired 1 acre 30 guntas on 15-09-1954 much prior to coming into force of Mysore Village Offices Abolition Act, 1961. The allocation of the acquired 1 acre 30 guntas, 20 guntas of property sold in favour of Papamma, in favour of Puttamma is also not in dispute. With these background, let me appreciate the oral and documentary evidence of both the parties. I will not discuss the admitted documents filed by both parties.
12. Ex.P.1 is the family tree, it is admitted documents. Ex.P.2 is the order passed by Spl.Deputy Commissioner, dated 23-05-1958. The contents of the document reveals that name of H.A.Subbarao shown as Shanubhog and 5 acre 12 guntas standing in the name of H.A.Subbarao. Ex.P.3 is the certified copy of Register No. 8 , 13 O.S.No.1300/2020 wherein name of H.A.Subbarao is shown as owner to the extent of 5 acre 12 guntas. Ex.P.4 is the certified copy of the notification dated 15-09-1954 which shows that 1 acre 30 guntas was acquired by Government of Mysore for extension of Village Chunchagatta. Exs.P.5 & P.6 are the plaint and written statement copies in O.S.No.259/1963 filed by the father of plaintiffs against the father of the first defendant. The said suit was filed before the 2 nd Munsiff Court, Bengaluru, wherein, it is clearly mentioned that the injunction sought in respect of 3 acre 30 guntas in Sy.No.73, 1 acre 30 guntas already acquired by the Government.
13. Ex.P.6 is the written statement filed by the father of the first defendant A.Nanjundappa. He admitted that the plaintiff was the Shanubhog of the village and Sy.No.73 was Shanubhog Inam land. In para No.5 of the written statement, A.Nanjundappa stated that in the second item, he was given western ½ portion it means, the eastern portion was retained by the father of the plaintiff. The written statement discloses that on 27-5-1958 there was a Panchayath Palupatti effected between H.A.Subbarao and A.Nanjundappa. It is also stated in the written statement that palupatti is in the handwriting of Subbarao. In the written statement, father of the first 14 O.S.No.1300/2020 defendant A.Nanjundappa contended that the house owned by the plaintiffs of that case sold away and the defendant i.e., A.Nanjundappa soon after the partition has constructed tiled house in the portion mutated to his share by investing an amount of ₹ 1,000/- to ₹1,500/-.
14. It is also stated in the written statement that the defendant is living in the said house. The plaintiffs i.e., father of the plaintiff resided in the rented house. Portion of Sy.No.73 was acquired by the Government, compensation was taken by the father of the plaintiffs. The contents of the written statement reveals that father of the plaintiffs misappropriated the Government funds and the said amount was paid by the defendant. In this regard, the father of the plaintiffs executed promissory note in favour of the defendant. A.Nanjundappa has contended that he has saved Subbarao from being prosecuted and also saved his service as Shanubhog by paying money to the Government. Subsequently, this suit was ended in compromise, as per the terms of the compromise, 1 acre 35 guntas each were shared between the plaintiffs and defendants, it can be seen on perusal of Ex.P.8. Ex.P.7 is the Judgment passed in Misc Appeal No.91/1963 by Civil Judge, Bengaluru on 21-10-1964. 15
O.S.No.1300/2020
15. In page No.3 of the Judgment, the learned Judge has clearly mentioned that the palupatti produced by A.Nanjundappa was admitted by H.A.Subbarao. It means prior to entering into compromise, as per Ex.P.8, here was a Panchayat palupatti between A.Nanjundappa and Subbarao on 27-1-1958. Ex.P.8 is the compromise petition in respect of Sy.No.10 and Sy.No.73. Sy.No.10 is not at all a disputed land in this case. Therefore, only Sy.No.73 is taken into consideration for this litigation.
16. In para No.2 of the compromise petition, it is mentioned that 1 acre 38 guntas towards western side including the house property given to A.Nanjundappa. It means the eastern portion was maintained by H.A.Subbarao. Both the brothers H.A.Subbarao and A.Nanjundappa agreed that H.A.Subbarao can receive the compensation awarded in LAC No.192/1964-65. Apart from this land, he is also allowed to receive the compensation in respect of Sy.No.92 of Vajarahalli Village.
17. Ex.P.9 is the application form for re-grant of service of land. It was filed by the father of the first defendant for grant of 1 acre 35 guntas in Sy.No.73 to him. Ex.P.10 is the certified copy of 16 O.S.No.1300/2020 Sale Deed, dated 20-03-1971. It was executed by Subbarao alone in favour of Puttamma. Whereas, in the plaint, the plaintiffs contended that it was jointly sold by H.A.Subbarao and Nanjundappa, the stand taken by the plaintiffs in the plaint is contrary to Ex.P.11. The contention can be seen on perusal of para No.8 of the plaint which is contrary to Ex.P.11. The boundaries mentioned in Ex.P.10 is also very important because, the identify of 'D' schedule property is at stake. Therefore, the boundaries mentioned in the Ex.P.10 which is an undisputed point of time and very important to locate 'D' schedule property. In Ex.P.10, H.A.Subbarao clearly stated that he is selling 20 guntas of land in favour of Puttamma W/o.Papanna. The said land is bounded on East remaining property of Subbarao and the property of Papanna, West the road leading to the lake, North backyard of lake and land of Papanna. South the remaining land retained by Subbarao in Sy.No.73.
18. Ex.P.11 is the RTC. It is not so relevant to ascertain the identity of the schedule property. Ex.P.12 is the survey record in respect of land Sy.No.73. It is clearly goes to show that Sy.No.73/1 is situated towards northern side and Sy.No.2 is situated towards the 17 O.S.No.1300/2020 southern side. This Ex.P.12 is contrary to Ex.P.10 and contrary to Exs.P.6, P.8, P.22, P.40, P.41, D.9 & D.10.
19. Ex.P.14 is the re-grant order passed by the Asst. Commissioner in HOA(S) 351/1968-69. The date of passing of order is not mentioned in Ex.P.14. But, it can be inferred from the initials that it was passed on 2-6-1972. By the time this re-grant is passed, Subbarao has sold 20 guntas of land in favour of Puttamma on 20-03-1971. This fact was not brought before the Asst. Commissioner, Bengaluru. Further, the Asst. Commissioner, Bengaluru was also not considered the fact that 1 acre 30 guntas land was acquired for the purpose of extension of Village Chunchagatta and erroneously passed re-grant order.
20. Ex.P.15 is the certified copy of the application filed by A.Nanjundappa before the Tribunal, wherein, he sought to grant Sy.No.73 and Sy.No.10 and also informed that he has paid six years revenue before the Treasury. Exs.P.16 & P.17 are the RTCs and M.R.No.8/2004-05. Those are he entries made in the year 2004-05 because the father of the plaintiffs died. The plaintiffs got mutated 3 acre 22 guntas which includes 1 acre 30 guntas acquired for the 18 O.S.No.1300/2020 formation of village. Therefore, these two documents are not helpful to the case of the plaintiffs. Ex.P.18 is the Appeal filed by the Government of Karnataka A.Nanjundappa against each other. All the appeals are clubbed and common order is passed by the Special Deputy Commissioner, Bengaluru District. On 2-3-2009. In the Order, the Special Deputy Commissioner, observed that as per the index of land, 3 acre 26 guntas retained by the land owners. 1 acre 30 guntas acquired by the Government but it was not converted. It has also mentioned that the father of the first defendant has converted Sy.No.73/2, on 24-05-1976. But the sketch of the land is not available. If this sketch is available, it would be very beneficial for both parties to ascertain where exactly, the converted land is situated and where the land of the plaintiffs is situated. Ultimately, the Special Deputy Commissioner, observed that the technical assistant and ex-officio DDLR has to survey the lands and fix the boundaries according the possession and enjoyment of the parties.
21. Feeling aggrieved by the order passed by the Special Deputy Commissioner, the plaintiffs of this case filed W.P.No.11411- 11414 of 2009 before the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka confirmed the order passed by the 19 O.S.No.1300/2020 Special Deputy Commissioner and ordered the survey parties to conduct the survey encumbrance records.
22. Ex.P.20 is the memo filed by the D.W.1 in M.A.No.4/2009 undertaking hat if the plaintiffs of this case succeeded in O.S.No.395/2009 filed by them, he would demolish the construction put up in 40ft x 60ft site in Sy.No.73. He also undertook that he will not put up any further construction. Ex.P.21 is the Judgment in M.A.No.35/2009, it is based on merits, wherein, the Appeal filed by the plaintiffs of this case on I.A.No.1 was dismissed and the Order passed by the Trial Court in O.S.No.395/2009 is confirmed. Ex.P.22 is the Order passed by DDLR on 12-11-2010 wherein, at page No.3, he mentioned that A.Nanjundappa the father of first defendant has applied for conversion of land for industrial purpose in Sy.No.73/2. Based on the conversion documents, the hissa phodies are created in Sy.No.73, wherein, Sy.No.73/1 measuring 1 acre 14 guntas standing in the name of the father of the plaintiffs, Sy.No.73/2, 73/3 measuring 2 acre 8 guntas and 4 guntas respectively standing in the name of he father of the defendant No.1 and Sy.No.73/4 is shown as land acquired for extension of Chunchagatta village. 20
O.S.No.1300/2020
23. The learned counsel for the plaintiffs argued that there was no specific order by the Hon'ble High Court or by the Special Deputy Commissioner to divide the Sy.No.73 into four parts. But, both the orders which are already referred above clearly mentioned that Sy.No.73 has to be measured in accordance with the records and possession of the parties. Therefore, the contention of the advocate for plaintiffs is not sustainable. Ex.P.23 is the report dated 25-03-2010 filed by the Officer of Regional Commissioners, Revenue Department based on the complaint filed by the defendant No.17. Ex.P.24 is the application filed by the defendant No.17 seeking the certified copies of Order passed in H.O.A.(S) 351/1968-69. That document was not available with the office of the Revenue Department. Exs.P.25 to P.28 are not relevant for this dispute. Ex.P.29 is the RTC of survey No.73/1 to 73/4. These entries are carried out as per the order passed as per Ex.P.22. Ex.P.31 is the certified copy of M.A.1/2014 filed by the present plaintiff against the defendant Nos.1 to 16 for modification of the extent of Subbarao. Ex.P.32 is the objection filed by the D.W.1 of this case. Ex.P.23 is the Order on I.A.No.1 passed in O.S.No.395/2009 on 24-04-2009, 21 O.S.No.1300/2020 wherein, the Trial Court has dismissed the I.A.No.1 filed by the plaintiffs of this case.
24. In para No.11 of the order, the Trial Court mentioned that A.Nanjundappa was entitled only for 1 acre 38 guntas but he obtained conversion order with respect to 2 acre 4 guntas. But, at the time of passing the conversion order, the plaintiffs or their father Subbarao has not objected to A.Nanjundappa. The compromise in O.S.No.259/1963 was arrived prior to coming into the force of Mysore Village Offices Abolition Act,1961, the re-grant order was passed subsequently. The re-grant order is accepted by both Subbarao and S.Nanjundappa by paying the revenue and the fixed rate by Special Deputy Commissioner. Thus, they have accepted the fact that 2 acres 12 guntas allotted to A.Nanjundappa, 3 acre 8 guntas including 1 acre 34 guntas acquired to the village. Therefore, the observation of the Trial Court is lack of information and lack of application of mind. Since the re-grant order is subsequent it prevails upon the compromise petition. Apart from it, soon after the enforcement of the Mysore Village Officers Abolition Act, all the lands which are treated as Service Inam Lands vested with the Government free from all encumbrances. It means till the date of 22 O.S.No.1300/2020 passing of Ex.P.14, whatever the earlier transactions are nullified. Therefore, the observations made by the II Addl.Prl. Civil Judge in O.S.No.395/2009 is not helpful for the plaintiffs.
25. In Ex.P.31 while passing the order, the Presiding Officer clearly mentioned that Western site belongs to Nanjundappa, Eastern side allotted to Subbarao. Ex.P.35 is the rough sketch map prepared by the defendant No.17 who is stated to be the trouble creator to the plaintiffs and defendants, though he has made as a party, he has not appeared. Since it is private sketch and it is contrary to Ex.P.10 and also contrary to the other documents filed by the plaintiffs, therefore it is not helpful for the plaintiffs. Ex.P.36 is the RTC of survey No.73, 3 acre 8 guntas were standing in the name of H.A.Subbarao i.e., the father of plaintiffs. Exs.P.37 and P.38 are the Judgment and Decrees passed in O.S.No.395/2009 wherein, the suit filed by the present plaintiffs dismissed.
26. In para No.24 to 26 of the Judgment, the Court observed that the plaintiffs are not in possession of the suit property. Therefore, the suit came to be dismissed. The said suit was filed in respect of 3 acre 22 guntas in Sy.No.731. By the time, this Judgment 23 O.S.No.1300/2020 is passed, the phodes are created as per Ex.P.22. This fact was not brought to the notice of the said Court.
27. Ex.P.40 is the Lease Deed executed by plaintiff No.2 in favour of the plaintiff No.1, dated 15-05-2017. In page No.5 of the Lease Deed, the plaintiff No.2 clearly stated that 1 acre 38 guntas allotted to Nanjundappa remaining land is allotted to his father share as per compromise arrived in O.S.No.259/1963. The entire case of the plaintiffs spinning around the compromise arrived in O.S.No. 259/1963. At the cost of repetition, this compromise has no relevance because subsequently re-grant order was passed as per Ex.P14. By the time the re-granted order is passed, the land is vested with the Government. Therefore, in my opinion, the compromise arrived in O.S.No.259/1963 has no significance at all.
28. Ex.P.41 is the deposition of the defendant No.17 of this case in O.S.No.395/2009 produced by the plaintiffs to derive the advantages in cross-examination. But, D.W.1 in page No.5 para No.3 categorically denied the fact that 1 acre 30 guntas was acquired by the Government in the South Eastern portion of entire 24 O.S.No.1300/2020 survey No.73. The witness further states that 1 acre 30 guntas acquired towards Southern side of entire Sy.No.73.
29. The learned counsel for the plaintiffs also referred para No.4, page No.6 to P.41, wherein, the defendant No.17 of this case admitted that 1 acre 35 guntas each took by Nanjundappa and Subbarao in O.S.No.259/1963. At the cost of repetition, this compromise has no relevance after the land is vested to the Government free from all encumbrances.
30. The learned counsel for the plaintiffs also referred para No.1 of cross-examination of defendant No.17 in this case, dated 18- 12-2018, wherein, he stated that Nanjundappa has converted Sy.No.73/2 and there was no boundaries and map at the time of conversion. Normally whenever a person applies for the conversion of land, survey has to be conducted according to the Karnataka Land Revenue Rules and Survey Manual. His evidence is contrary to the Act and Rules. He was elaborately cross-examined in O.S.No.395/2009. All the cross-examinations dated 18-09-2019 was highlighted by the learned counsel for the plaintiffs and argued that the plaintiffs are in possession of 'D' schedule property. In all 25 O.S.No.1300/2020 Exs.P.1 to P.41, there is no any clear document to show that 'D' schedule property mentioned in the plaint is in existence within the boundaries mentioned in the plaint. The oral evidence of P.W.1 is adduced, wherein, he reiterated that his father was granted with 3 acre 22 guntas in Sy.No.73 and the defendants are in illegal possession of 'D' schedule property. He categorically denied the fact that 'D' schedule property is not in existence. Both the parties have suppressed the several facts in the previous litigation as well as in this case also.
31. Ex.P.42 is the order passed by the Deputy Commissioner dated 24-05-1976 for conversion of Sy.No.73/2 measuring 2 acres 4 guntas. While ordering for conversion, the Deputy Commissioner laid certain conditions but the survey records pertaining to the Ex.P.42 are not traceable. As per Ex.P., Western ½ portion in Sy.No.73 is allotted to Subbrao and Eastern ½ portion is allotted to Nanjundappa. In Ex.P.10, 20 guntas sold to Papamma by Subbarao, wherein, he mentioned that towards Eastern is remaining property Western side lake, Northern side property of husband of Papamma and Souther side, the remaining property of him. Therefore, during the lifetime of Subbarao, by executing Ex.P.10. clearly admitted that 26 O.S.No.1300/2020 his allotted portion is towards the Western side of entire Sy.No.73. Now, the 'D' schedule property is entirely different from Ex.P.6, P.8, P.10, P.22, P.40 and P.41. Boundaries mentioned in those documents are not tallying with the plaint schedule. During the lifetime of Subbarao he sold 3 guntas of land as per Ex.P.22, wherein also, he clearly stated that his property is situated in the Western side of entire Sy.No.73. In Ex.P.40, for the first time, Sy.No.73/2 is shown towards the Western of the Sy.No.73. It is the document inter se between the plaintiffs. The recitals are not binding on the defendants.
32. In Ex.P.8 also, 1 acre 38 guntas allotted to Nanjundappa which is on the Western side of entire Sy.No.73. At the cost of repetition, this Ex.P.8 has no relevance. Because after the re-grant order, the situation of the property is changed.
33. The defendants have produced Ex.D.1, the plaintiffs have also produced the same document which is marked as Ex.P.41. Therefore, it need not be discussed again. Ex.D.2 is also produced by the plaintiff and marked as Ex.P.2. Ex.D.3 is the certified copy of mahazar drawn on 26-09-1971 by the Revenue Officer in presence 27 O.S.No.1300/2020 of the villagers. Several villagers have signed Ex.D.3, wherein, it is mentioned that the land Sy.No.73 measuring 5 acre 20 guntas was granted by the Land Tribunal in favour of H.A.Subbarao and A.Nanjundappa. At the time of drawing the mahazar, it is not brought to the notice of the Revenue officers that 1 acre 30 guntas acquired for the extension of Chunchagatta Village. Ex.D.4 is the certified copy of statement of Subbarao and Nanjundappa, wherein, it is mentioned that Sy.No.73 was enjoyed by the father of the plaintiffs and father of the first defendant.
34. According to the compromise arrived in O.S.No.259/1963. In page No.2 of Ex,D.4, both H.A.Subbarao and Nanjundappa stated that 2 acre 12 guntas in Sy.No.73 was cultivated and enjoyed by Nanjundappa and remaining portion is enjoyed by the Subbarao. This again goes to show that from the year 1971, the father of the plaintiffs categorically admitted that 2 acre 12 guntas was cultivated by Nanjundappa. Since it is a joint statement, signed by Nanjundappa and Subbarao, it is binding on the plaintiffs. Based on the order passed by the Asst. Commissioner, M.R.No.1/1972-73 was effected as per Ex.D.5.
28
O.S.No.1300/2020
35. Ex.D.6 is the undertaking given by Subbarao having paid the premium amount to the revenue department. Ex.D.7 is the endorsement signed by the father of the plaintiffs stating that he has paid the premium amount. Ex.D.8 is the conversion order in respect of 2 acre 4 guntas of land held by Nanjundappa. On 24-5-1976, the land was converted into non agricultural purpose but the sketches are not traced in spite of best efforts made by both the parties. If the sketches of 2 acre 4 guntas is available, it will help the Court to ascertain that whether 'D' schedule property is in existence within the boundaries mentioned in the plaint.
36. Ex.D.9 is the certified copy of sale deed, dated 17-6-1971. It is the property sold by Subbarao measuring 50ft x 38ft in the year 1971. The boundaries mentioned in Ex.D.9 are quite importance because Subbarao sold the site by mentioning the boundaries as East remaining land belonging to him, West remaining land belonging to him, North land of Puttamma, south remaining land. If it is considered, it is clearly goes to show that the western ½ portion in Sy.No.73 was allotted to Subbrao.
29
O.S.No.1300/2020
37. Ex.D.10 is also certified copy of Sale Deed dated 17-12- 1975. It is in respect of another site measuring East to West 45ft, North to South 60ft executed by Subbarao. In the said document also, the boundaries are very important. The vendor Subbarao stated that the property referred above is bounded on East remaining land belonging to him, West site of Muniyappa, North site of Patel Muniyappa and South road.
38. Even if this Ex.D.10 is taken into consideration, in all the possible properties, the western half portion is allotted to Subbarao. Ex.D.11 is the M.R.No.6/1984-85 which shows that 20 guntas of land is sold by Subbarao in favour of Puttamma. Ex.D.12 is the order passed by the Special Deputy Commissioner in the Appeals filed by the Government of Karnataka, the same documents are filed by the plaintiffs and it is already discussed. Ex.P.13 is the sketch prepared by the Revenue Officers in respect of Sy.No.73, wherein, Sy.No.73/1 stands in the name of Late Subbarao, 73/2, 73/3 standing in the name of Nanjundappa totally measuring 2 acre 12 guntas. 73/4 is acquired for the purpose of extension of the village.
39. The plaintiffs contended that the land acquired for the purpose of extension of the village situated on northern side of the 30 O.S.No.1300/2020 Sy.No.73, whereas, the survey shown 73/4 towards southern side. 73/2 and 73/3 are shown towards the western side. According to him, these properties are already converted and sites are formed. But, this Exs.D.13 to 15 are contrary to the Exs.P.6, P.8, P.10 and P.20. But the burden is on the plaintiffs to show that 'D' schedule property is situated within the boundaries mentioned in the plaint. Ex.D.17 is the certified copy of M.R.H.11. It shows that the phodi was conducted and Sy.No.73 was divided into four parts. 73/2 jointly shown in the name of the plaintiffs and A.Nanjundappa.
40. Exs.D.18 to D.21 are the plaint, written statement and Judgment in O.S.No.395/2009. The same documents are filed by the plaintiffs. These documents are already discussed. Ex.D.23 is the certified copy of order sheet in O.S.No.6883/2013 filed before 13th Addl.City Civil & Sessions Judge. It is filed by the family members of the defendants against each other for partition and separate possession. It was ended in compromise, wherein, the sites are distributed among the family members of the defendants.
41. Based on the compromise arrived in the said suit, Exs.D.24 to D.37 are issued. Those are standing in respective 31 O.S.No.1300/2020 names of D.W.1 N.Nagesh, N.Kuchela, Achyuta, Radha, Muralidhara, Nagesh etc., The encumbrance certificate produced by the defendants makes it clear that majority of the sites formed in Sy.No.73/2 and 73/3 are sold by the family members of the defendants. The plaintiffs never objected for the conversion order and sale of the sites. The evidence of D.W.1 is also reveals that the sites are formed in Sy.No.73/2 and Sy.No.73/3. D.W.1 also admitted that the compromise was arrived in O.S.No.259/1963 but he contended that after the lands are re-granted, the compromise arrived in O.S.No.259/1963 has no relevance.
42. After careful examination of the oral and documentary evidence lead by both parties, the existence of 'D' schedule property appears to be doubtful within the boundaries mentioned in the plaint. Accordingly, I answer issue No.1 in negative.
43. Issue No.2:- The plaintiffs have sought recovery of possession of 'D' schedule property from the defendants. The plaintiffs failed to prove their ownership and existence of 'D' schedule property, therefore, they are not entitled for he recovery of 32 O.S.No.1300/2020 possession of 'D' schedule property. Accordingly, I answer issue No.2 in negative.
44. Issue No.3:- The plaintiffs failed to prove their ownership and previous possession over the 'D' schedule property, date of dispossession, boundaries of 'D' schedule properties are not proved by the plaintiffs. Therefore, the plaintiffs are not entitled for any reliefs claimed in the plaint. Accordingly, I answer issue No.3 in the negative.
45. Issue No.4:- In view of my findings to the above issues, I pass the following:-
ORDER Suit of the plaintiffs dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed and typed by her and then corrected and pronounced by me in the open court on this the 3 rd day of February 2025) (J.V.KULKARNI) XXXV Addl.City Civil & Sessions Judge, Bengaluru 33 O.S.No.1300/2020 ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF.
P.W.1 : Sri.B.S.Raghavendra Rao WITNESSES EXAMINED ON BEHALF OF THE DEFENDANTS.
D.W.1 : Sri.H.N.Pushpanath DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF. Ex.P.1 : Certified copy of the 'G' Tree Ex.P.2 : Certified copy of the Order dated 23-05-1958 Ex.P.3 : Certified copy of Register No.8 Ex.P.4 : Certified copy of Notification, dated 15-09-1954 Ex.P.5 : Certified copy of plaint Ex.P.6 : Certified copy of written statement Ex.P.7 : Certified copy of Judgment in Misc.Appeal 91/1963 Ex.P.8 : Certified copy of compromise petition in O.S.No.259/1963 Ex.P.9 : Certified copy of application for re-grant Ex.P.10 : Certified copy of Sale Deed, dated 20-03-1971 Ex.P.11 : Certified copy of RTC in respect of property Sy.No.73 Ex.P.12 : Certified copy of survey record in respect of property in Sy.No.73 Ex.P.13 : Certified copy of Report of Asst.Commissioner Ex.P.14 : Certified copy of re-grant Order passed by Asst.Commissioner in HOA(S)351/68-69 34 O.S.No.1300/2020 Ex.P.15 : Certified copy of Application submitted S.Nanjundappa Ex.P.16 : Certified copy of M.R.No.8/2004-05 Ex.P.17 : Certified copy of RTC of property in respect of Sy.No.73/1 Ex.P.18 : Certified copy of Order dated 02-03-2009 by Spl.Deputy Commissioner Ex.P.19 : Certified copy of Judgment in W.P.No.11411- 11414/2009 Ex.P.20 : Certified copy of memo filed in M.A.4/2009 Ex.P.21 : Certified copy of Judgment passed in M.A.35/2009 Ex.P.22 : Certified copy of the Order dated 22-11-2010 passed by DDLR Ex.P.23 : Certified copy of the Report dated 25-03-2010 Ex.P.24 : Certified copy of the Letter dated 06-12-2006 of Asst. Commissioner Ex.P.25 : Certified copy of applications (4) dated 27-07-2007 submitted by S.N.Raja Ex.P.26 : Certified copy of Letter dated 25-11-2011 Ex.P.27 : Certified copy of application filed by S.N.Raja Ex.P.28 : Certified copy of Letter of Asst.
Commissioner, dated 22-07-2010 Ex.P.29 : Certified copy of RTC Extracts Ex.P.30 : Certified copy of Order Ex.P.31 : Certified copy of Appeal Memo in M.A.1/2004 Ex.P.32 : Certified copy statement of objections filed in M.A.1/2014 35 O.S.No.1300/2020 Ex.P.33 : Certified copy of Order passed on I.A.Nos.1 and 2 in O.S.No.395/2009 Ex.P.34 : Certified copy of Order passed on I.A.No.9 in O.S.No.395/2009 Ex.P.35 : Certified copy of rough sketch of properties in Sy.No.73 Ex.P.36 : Certified copy of RTC Extracts (8) Ex.P.37 : Certified copy of Judgment in O.S.No.395/2009 Ex.P.38 : Certified copy of Decree in O.S.No.395/2009 Ex.P.39 : Certified copy of Report of Revenue Inspector along with the typed copy Ex.P.40 : Certified copy of registered release Deed, dated 15-05-2017 Ex.P.41 : Certified copy of deposition of S.N.Raja in O.S.No.395/2009 Ex.P.42 : Certified copy of acquisition order of H.A.Subbarao mentioned as owner of the Sy.No.73.
Ex.P.43 : Certified copy of Conversion Order, dated 24-05-1976 DOCUMENTS MARKED ON BEHALF OF THE DEFENDANTS.
Ex.D.1 : Certified copy of evidence of S.N.Raju in
O.S.No.395/2009
Ex.D.2 : Certified copy of Order passed by
Asst.Commissioner dated 07-06-1973
Ex.D.3 : Certified copy of Mahazar drawn on
26-09-1971
36
O.S.No.1300/2020
Ex.D.4 : Certified copy of statement of Subbarao and
Nanjundappa in H.O.A(S) 351/68-69
Ex.D.5 : Certified copy of MR.1/72-73
Ex.D.6 : Certified copy of Bond executed by
H.J.Subbarayappa on 28-09-1973
Ex.D.7 : Certified copy of Bond executed by
H.J.Subbarayappa on 20-09-1973
Ex.D.8 : Official Memorandum dated 24-05-1978
Ex.D.9 : Certified copy of Sale Dee
dated 17-06-1971
Ex.D.10 : Certified coy of Sale Deed
dated 17-12-1975
Ex.D.11 : Certified copy of MR.6/84-85
Ex.D.12 : Certified copy of Order of D.C., Bangalore, dated 02-03-2009 Ex.D.13 : Certified copy of Pakka Book Ex.D.14 : Certified copy of Survey Sketch Ex.D.15 : Certified copy of investigation report dated 25-03-2010 Ex.D.16 : Certified copy of Order dated 22-11-2010 Ex.D.17 : Certified copy of MR H11/2011-12 Ex.D.18 : Certified copy of plaint in O.S.No.395/2009 Ex.D.19 : Certified copy of written statement filed by defendant No.2 in O.S.No.395/2009 Ex.D.20 : Certified copy of written statement filed by defendant No.13 in O.S.No.395/2009 Ex.D.21 : Certified copy of Judgment and Decree in O.S.No.395/2009 Ex.D.22 : Certified copy of Compromise petition filed in O.S.No.6883/2013 37 O.S.No.1300/2020 Ex.D.23 : Certified copy of plaint in O.S.No.6883/2013 Exs.D.24 : Certified copy of 'B' property Register to D.26 Extracts Exs.D.27 : Certified copy of tax paid receipts to D.36 Ex.D.37 : Encumbrance Certificate Ex.D.38 : Certificate under Section 65B of Indian Evidence Act (J.V.KULKARNI) XXXV Addl.City Civil & Sessions Judge, Bengaluru Digitally signed by JEEVAN KULKARNI JEEVAN Date: KULKARNI 2025.02.07 16:37:45 +0530