Karnataka High Court
B Arasappa Since Decd By His Lrs vs The State Of Karnataka Rep By Secretary ... on 23 August, 2013
Bench: D.V.Shylendra Kumar, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23rd DAY OF AUGUST, 2013
PRESENT
THE HON'BLE MR.JUSTICE D V SHYLENDRA KUMAR
AND
THE HON'BLE MR.JUSTICE B SREENIVASE GOWDA
R.F.A. NO.902 OF 2006
BETWEEN :
B. ARASAPPA,
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES
1A. SMT. KRISHNAMMA,
W/O ARASAPPA,
NO.35, BYRASANDRA I CROSS,
1 BLOCK, EAST, BYRASANDRA,
(NEAR KAVERAMMA TEMPLE)
BANGALORE.
SINCE DECEASED BY HER LR
(IS ALREADY ON RECORD) AS APPELLANT NO.2
2. SRI. B.A. RAMESH, AGED 38 YEARS,
S/O LATE B ARASAPPA,
NO.59, BYARASANDRA I CROSS,
I BLOCK, EAST, BYRASANDRA,
(NEA KAVERAMMA TEMPLE)
BANGALORE.
3, SRI. K.K. KRUPAKAR,
AGED ABOUT 45 YEARS,
S/O LATE S C KEMPANNA,
R/A NO.103, LALBAGH SIDDAPURA,
JAYANAGAR I BLOCK,
BANGALORE - 560 011.
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... APPELLANTS
(BY SRI: C. LAXMINARAYAN RAO, ADV.)
AND :
1. THE STATE OF KARNATAKA,
REPRESENTED BY SECRETARY TO GOVT.,
PUBLIC WORKS DEPARTMENT,
M.S. BUILDINGS,
DR. B. R. AMBEDKAR ROAD,
BANGALOE - 560 001.
2. THE CHIEF ENGINEER,
COMMUNICATION AND BUILDINGS,
ANANDARAO CIRCLE,
BANGALORE - 560 009.
3. NATIONAL INSTITUTE OF MENTAL HEALTH
AND NEURO SCIENCES,
(STATUTORY BODY UNDER GOVERNMENT OF
INDIA).
REPRESENTED BY ITS DIRECTOR,
HOSUR ROAD,
BANGALOE - 560 029.
... RESPONDENTS
(BY SRI. SANGAMESH G. PATIL, AGA FOR R1 & R2
SRI: A. MADHUSUDHAN RAO, ADV. FOR R3 )
THIS RFA IS FILED UNDER SECTION 96 R/W O XLI
R.1 OF CPC AGAINST THE JUDGMENT AND DECREE
DATE: 08.11.2005 PASSED IN O.S. NO.6139/95 ON THE
FILE OF THE XVI ADDL. CITY CIVIL AND SESSIONS
JUDGE, BANGALORE, DISMISSING THE SUIT FOR
DECLARATION AND INJUNCTION , DAMAGES AS NOT
MAINTAINABLE.
THIS APPEAL HAVING BEEN HEARD, RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, B. SREENIVASE GOWDA, J.,
PRONOUNCED THE FOLLOWING:
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JUDGMENT
This appeal is by the unsuccessful plaintiffs challenging the judgment and decree dated 08.11.2005 passed in OS No.6139/1995 by the XVI Addl. City Civil and Sessions Judge, Bangalore in dismissing their suit brought for the reliefs of declaration and permanent injunction.
2. For the sake of convenience parties are referred to as they are referred to in the suit before the trial court.
3. The plaintiffs on 13-9-1995 have initially brought the suit for the relief of permanent injunction restraining the defendants or any one acting through them from interfering with their peaceful possession and enjoyment of the suit schedule property in any manner and further restraining them from obstructing the plaintiffs, their agents and lawful representatives from carrying on the business and movement of vehicular traffic from and to the suit schedule property in any manner; BY CONTENDING THAT:
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The plaintiffs 1 and 2 are father and son. The suit schedule property originally belonged to the father of plaintiff No.3 namely late S.C. Kempanna, who inherited the same from his forefathers. The plaintiff No.1 came into the possession of the suit property by way of a lease granted by the father of plaintiff No.3 as early as in the year 1942. Ever since then the plaintiff No.1 has been in lawful physical possession and enjoyment of the suit schedule property and he has been paying the lease rent in respect of the suit schedule property right from the year 1942. Even as on this date, the suit schedule property is in possession of the plaintiffs No.1 and 2. The plaintiff No.3 is believed to have acquired the suit schedule property some time during 1940-41 and he had no objection at any point of time to the possession of the suit schedule property by plaintiffs 1 and 2.
4. The plaintiffs 1 and 2 by doing hard work have established a very successful business in running Plant Nursery in the suit schedule property and have earned reputation as renowned horticulturists in India and 5 abroad. The plaintiff No.1 has carved a name for himself in the field of horticulture and is a very popular and well known figure. He is running nursery in the suit schedule property since the year 1942 and the said business is the only source of their livelihood. The plaintiffs 1 and 2 along with other members of the family are actually residing in the suit schedule property and in support of the same they have produced 32 documents.
5. That being so, the second defendant through his subordinates along with the third defendant has started interfering with the peaceful possession and enjoyment of the suit schedule property by plaintiffs 1 and 2 and has started disturbing and creating nuisance near the suit schedule property. The subordinates of the second and third defendants are acting in a high-handed and arbitrary manner by taking law into their hands and have made repeated threats during the past few days threatening the plaintiffs that they will be forcibly dispossessed from the suit schedule property. The 6 plaintiffs are law abiding citizens and they have no political influence or money power and are no match to the powerful force of the defendants who are acting in a high handed and arbitrary manner under the garb of authority. In fact, even the police have ignored and failed to take any action on the complaint made by the plaintiffs against the defendants.
6. The defendants have come near the suit schedule property on 5th and 6th September, 1995 and thereafter taking advantage of the week end holidays again on 8th September 1995 in the afternoon at about 4 p.m. threatened the plaintiffs of forcible dispossession and have obstructed and prevented the vehicles coming to the suit schedule property for picking up the saplings which are required to be distributed and sent to the customers and clients of the plaintiffs. The defendants have no manner of right, title, interest, claim or authority to interfere with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs or prevent them from bringing vehicles into the 7 suit schedule property for the purpose of transporting the saplings and other activities such as loading and unloading of mud, manure, fertilizers etc. If the defendants continue their act of the said obstruction the plaintiffs would suffer irreparable damage and injury and there will be a threat to the very source of livelihood of the plaintiffs resulting in grave injustice. Therefore, the plaintiffs have no other alternative and efficacious remedy open to them than to approach this Hon'ble Court for the relief of permanent injunction.
7. The cause of action for the suit arose on 05-09-1995 for the first time when the defendants obstructed the movement of vehicles into the suit schedule property and thereafter on 06-09-1995 when the said illegal acts were repeated and when the plaintiffs were forced to give police complaint and again on the afternoon of 07-09-1995 when the defendants have further threatened to repeat the illegal acts and to interfere with the peaceful possession and enjoyment of the suit schedule property and dispossession of the 8 plaintiffs from the suit schedule property without following due process of law and in illegal and arbitrary manner.
8. The plaintiffs subsequently on 29.07.2003 got the plaint including the prayer amended as under :
The plaintiff No.1 and his family members have been in continuous possession and enjoyment of the suit schedule property without any disturbance from any other person/s including the defendants since more than 60 years. Therefore, they have perfected their title by way of adverse possession in view of section 27 of the Limitation Act. It is admitted fact that, the lands were notified in the year 1944, but till today they have not at all taken the possession of the schedule property by means of any provisions of law. Therefore, the plaintiffs possession is continuous, open and adverse to the real owner. Without prejudice to the rights raised above, the plaintiffs submit that, if the first defendant presumes that, they are the owner of the schedule property since 1944, they could have taken possession 9 from these plaintiffs by means of law, but, they have allowed the plaintiffs to enjoy the peaceful possession of the schedule property till today and therefore the plaintiffs have perfected their title by way of adverse possession. Hence, the plaintiffs are entitled to file suit for declaration.
9. Though the defendants who have created documents within themselves without obtaining the physical possession from the plaintiffs and without giving any notice to them, the said documents are not binding on the plaintiffs.
10. The defendants are not at all having any piece of evidentiary proof that, they have taken physical possession from the plaintiffs or from their predecessors. Such being the case, the defendants could have followed the procedure laid down under the Land Acquisition Act or Eviction of Public Premises Act.
11. It is further submitted by the plaintiffs that things stood thus, during the pendency of the above suit on 10 31-12-2001, at about 8.00 am the defendants No.2 to 6 came along with their henchmen and collected more than 500 men near the schedule property abruptly without any intimation along with JCBs., Bulldozers and trucks hired from Shirke and company and rushed into the schedule property and demolished the residential houses of the plaintiffs and their labour quarters and they have removed all belongings from their houses and thrown them to streets. Apart from that, they have destroyed the Horticultural nursery plants which the plaintiffs have grown, costing more than Rs.40 lakhs and they have also taken away some of the Horticulture nursery plants which are valuable and each plant was costing more than Rs.500/- in lorries hired from Shirke and company and most of them were transported to their personal gardens and also supplied to many of their relatives and they also destroyed the Muneswara Temple which was constructed by these plaintiffs which was in existence since time immemorial. The plaintiffs have also raised nearly more than 60 coconut trees which are aged 11 about more than 40 to 45 years and other valuable trees in the schedule property by investing their hard earned money. After illegal dispossession of the plaintiffs, the defendants No.2 and 3 illegally removed Jackfruit trees, Mango trees, Guava trees, Neem trees, Sapota trees, Lime trees etc., which were grown on the schedule property without obtaining any permission and from the illegal acts of these defendants, the plaintiffs have sustained loss of Rs.40 lakhs towards Horticultural nursery plants, Rs.2 lakhs towards cutting and removing of aforesaid fruit yielding trees and they have demolished 6 residential houses which were constructed by the plaintiffs for their residential use and also to accommodate their labourers costing more than Rs.10 lakhs. Apart from this, the defendants have taken away the belongings of plaintiffs No.1 and 2 such as 2 Television sets, 1 fridge, 10 fans, cots, chairs, utensils etc., and they have taken away 2 almirahs wherein the plaintiffs have kept some of the documents pertaining to their correspondences and properties. They have also kept about 10 tolas of good ornaments and Rs.8,500/- 12 cash and also silver articles. When the plaintiffs requested / begged with the defendants Nos. 2 to 6 they lodged complaint with the police and the police have taken away the first plaintiff from the spot to the police station and they have also beaten plaintiffs 2 and 3 and plaintiffs No.2 and 3 ran away from the spot without any option and thus, all the plaintiffs and their family members have sustained untold pain and having no other option sent request letter to the Chief Minister, Commissioner of Police and other higher authorities, but, all the letters written by the plaintiffs are in vain as no authority has taken any action against the illegal acts of the defendants. Therefore, the plaintiffs having no option left with them, approached Hon'ble High Court of Karnataka by filing writ petition bearing No.816-818/2002 by challenging their illegal acts. But, the Hon'ble High Court of Karnataka disposed off the matter on 04-07-2002 by giving liberty to these plaintiffs to make appropriate application even to claim damages in the suit.
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12. As the action of all the defendants No.2 to 6 is totally illegal, contrary to law, having no authority of law, all the defendants are liable to pay the damages of Rs.52 lakhs to the plaintiffs.
13. The plaintiffs submit that the plaintiffs No.1 and 2 were growing valuable Horticultural nursery plants in the suit schedule property by raising loan from various financial institutions and they were taking orders from various countries, states and other companies and in the month of November 2001, they had heavy orders from Chennai, Australia, Lalbagh and other companies. Now, due to the illegal action of the defendants, they were destroyed and taken away from the schedule property and the plaintiff 1 and 2 have became shelter less, penniless and they are in streets and they are sleeping in temple.
14. The cause of action for seeking amendment of the suit arose only when the defendants illegally dispossessed the plaintiffs on 31-12-2001 from the schedule property and caused heavy damage to the 14 plaintiffs and subsequently after disposal of writ petition from the Hon'ble High Court of Karnataka on 04-07- 2002.
15. Therefore, the plaintiffs have sought for the following reliefs:
i) Declare that, the dispossession of the plaintiffs by the defendants from the schedule property on 31.12.2001 is totally illegal and without issuing any notice and therefore, it is in violation of principles of natural justice.
ii) Declare that, the defendants have not taken
the lawful possession of the schedule
property in accordance with law, therefore, they are liable to restore the possession of the schedule property to the plaintiffs.
iii) Further declare that, the defendants have caused damage to the property and belongings of the plaintiffs on the schedule property on 31.12.2001 to the tune of Rs.53 lakhs. Therefore they are liable to pay damages of Rs.53 lakhs to the plaintiffs. 15
16. Defendants 1 and 2 after entering appearance in the suit filed written statement, denying the averments made in the plaint as false and incorrect and contending that the plaintiffs are not lawful owners and they are not in lawful possession of the suit schedule property at any point of time and they have no manner of right, title or interest in respect of the suit schedule property. The suit schedule property in Sy. No.29/3 of Byrasandra village, Bangalore South Taluk Bangalore to an extent of 4 acres 33 guntas was the subject matter of acquisition during the year 1944 as per the notification issued by the then Maharaja of Mysore in Notification No. PW 1888-90 dated 29th September, 1944 and possession of the said land and other lands at Byrasandra Village has been taken over from the owners and the khathadars Savithramma and Anubhavadars Subbaraya bin Venkataramanaiah. Thus the suit schedule property has been duly acquired by the Government of Karnataka for the benefit of Tuberculosis Sanatorium in the year 1944.
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17. The plaintiffs are not running any plant Nursery in the suit schedule property and no permission was granted by the Competent Authority to run plant nursery in the suit schedule property. The defendants after taking possession of the suit schedule property and other properties from the Government of Karnataka in the year 1944 by virtue of notification issued by the Government of Karnataka in HFW 4 BRA 79, Bangalore dated 3rd April, 1981 handed over the physical possession of the land to an extent of 14 acres in favour of third defendant - NIMHANS for the purpose of construction of new O.P.D. Block. Thus, the plaintiffs have no manner of right, title or interest at any point of time in respect of the suit schedule property and plaintiffs are tress-passers on the suit schedule property, plaintiffs are not entitled for any relief as prayed for in the plaint and they have not acquired any valid title to the suit schedule property at any point of time nor they are in lawful possession of the suit schedule property.
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18. There is no cause of action to maintain the suit and the cause of action mentioned at para 7 of the plaint are all false.
19. The suit is not properly valued for the reliefs sought for in the plaint and the court fee paid is not sufficient.
20. The suit is not maintainable for the relief sought for in the plaint either in law or on facts. At no point of time defendants 1 and 2 have interfered with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs, as the plaintiffs are not in lawful possession of the suit schedule property. With this defendants 1 and 2 prayed for dismissal of the suit with cost.
21. The third defendant has also filed written statement denying the averments made in the plaint and contending that the third defendant is a society registered under the provisions of the Societies Registration Act and is engaged in research and medical 18 activities. It is a deemed University recognized by the University Grants Commission and other Authorities.
22. The then Maharaja of Mysore had issued a Notification dated 29.09.1944 in exercise of the powers under the Land Acquisition Act, 1891 and by the said notification acquired Sy.Nos. 29/1, 29/2 and 29/3 falling within the jurisdiction of Byrasandra Village, Uttarahalli Hobli, Bangalore South Taluk, Bangalore District and since then the defendant is in peaceful possession and enjoyment of the said lands being true owner. Thereafter, the Government handed over various lands for construction of new block of OPD Section. The Government by its order dated 3.4.1981 ordered handing over of the Government land for construction of a new OPD block by the NIMHANS. Subsequently, in 1987 the lands were actually handed over to NIMHANS along with the sketch and the NIMHANS is in actual possession and peaceful enjoyment of the said lands in terms of various orders issued from time to time. In the circumstances, this 19 defendant is in rightful possession and occupation of the schedule lands. The plaintiffs cannot seek any relief at the hands of this Hon'ble Court. Moreover, the suit itself is barred by law of limitation and the suit is also liable to be dismissed in the absence of any prayer regarding the title of the plaintiffs in respect of the schedule property.
23. It is submitted that Sy. Nos. 28 and 29/3 of Byrasandra Village are not the agricultural lands, notwithstanding the same the plaintiffs had committed several acts of omission and commission without any authority of law. The plaintiffs may be put to strict proof of the inheritance and lease as stated in para 2 of the plaint. They have in fact trespassed the suit lands causing avoidable difficulties to this defendant and separate proceedings would be initiated against them in this regard. The plaintiffs themselves admit that the lands were acquired by the Government and they cannot run the business in the lands not belonging to them. The plaintiffs without any authority 20 of law have started interfering with the lands belonging to this defendant and in those circumstances the defendants were justified in asking them not to commit any act of tresspass into the lands not belonging to them. On the other hand the plaintiff No.1 himself ought to have vacated and ought not to have interfered with the peaceful possession and enjoyment of the other lands situated in the premises. The plaintiff No.1 in the absence of any right, title or interest in the suit land cannot convert the hospital premises into a Nursery, therefore he requires to be prevented by the defendants and in the absence of any right the plaintiff No.1 cannot be permitted to do the business in the hospital campus and he is not entitled for any injunction.
24. The third defendant admittedly is a recognized and respected institution serving the needs of mental health and Neuro surgery. In such place no nursery business can be continued by the plaintiff without any authority of law and without any right, title or interest in respect 21 of the suit lands. Therefore, plaintiff No.1 himself has failed to prove that he has a prima facie case and any interference in the peaceful possession of this defendant is nothing but an act of trespass required to be taken note of by the third defendant, the defendant is fully justified in arresting the interference of the plaintiffs on the lands belonging to the third defendant and denied the cause of action arose on 5.9.1995, 6.9.1995 and 10.9.1995 as sought to be made out in para 7.
25. That after the plaintiffs got their plaint amended, defendants 1 and 2 have not filed any additional written statement, but the third defendant has filed additional written statement denying the averments made in the amended paras 5(a) to (g) of the plaint as false and incorrect and interalia contending that the Govt. has taken possession of the suit property long back. It is submitted that the plaintiffs have admitted that the 3rd defendant is the owner in possession of the suit land.
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26. This defendant submits when the land was acquired by the Govt. as far back in the year 1944 question of creating the documents by the defendants does not arise. The defendant submits when the plaintiffs are not at all the owners nor in possession of the suit property, the question of giving notice to the plaintiffs does not arise. The defendant submits that, the said notification was not at all challenged either by the notified kathedars or by the Anubhavdars. It is submitted the documents speak that the defendants are the owners in possession of the suit land, question of proving the same does not arise. The defendant further submits when the land was acquired under the Land Acquisition Act and they have followed the procedure as contemplated under the L.A. Act and when the plaintiffs are not at all in possession of the suit land, eviction of the plaintiffs under Public Premises Act is not applicable and also question of issuance of any notice under law does not arise.
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27. The defendant further submits the suit schedule property was a vacant land and there was no structures as alleged by the plaintiffs. When such being the case question of demolition by the defendants on 31.12.2001 is hereby denied as false and baseless. The defendants further submit when there is no temple in the suit property, question of destroying the Muneshwara temple does not arise. The suit schedule property was a vacant land as on the date of filing the suit, there was no building, servants quarters, fruit trees as alleged in the plaint. The defendant further submits since the plaintiffs suffered an interim order before this Hon'ble Court, the plaintiffs have filed the frivolous writ petition before the Hon'ble High Court in writ petition Nos.816- 818/2002. The Hon'ble High Court by order dated 04.07.2002 was pleased to dismiss the W.P on merits giving liberty to the plaintiffs to make an appropriate application.
28. The defendants have not committed any illegal act or caused any damage to the plaintiffs. The plaintiffs 24 have not suffered any loss or damage as alleged in the plaint. The defendant submits neither the plaintiffs nor notified kathedars were in possession at any point of time, question of causing damages of Rs.52 lakhs does not arise. The plaintiffs have filed a false suit with a malafide intention in order to have unlawful gain.
29. It is submitted the suit schedule property was a vacant land which is meant for the benefit of public and when such being the case, question of damage caused to the plaintiffs will not arise. The defendant submits that the suit property is in exclusive possession of this defendant. At no point of time the officials of the defendants destroyed or taken away anything from the suit schedule property. The defendant further submits, the defendants have not caused any damage to the plaintiffs as alleged in para 5(g) of the plaint.
30. The defendant submits the documents which the plaintiffs refer in the plaint and the documents which are produced before this court are all created for the purpose of this case and those documents do not 25 pertain to the suit property and those documents will not establish any right, title or interest over the suit property is concerned. The plaintiffs are not entitled for any relief much less the reliefs sought in the plaint. The Plaintiffs have filed the above suit with a malafide intention and in order to have unlawful gain. Neither Plaintiffs 1 and 2 nor the 3rd Plaintiff were in possession and enjoyment of the suit property at any point of time even prior to date of acquisition.
31. The Defendant submits that the court fee paid by the Plaintiff is insufficient and the suit property was valued improperly. The Defendant further submits the suit property values more than 20 crores. The Plaintiffs ought to pay the court fee on the market value in order to seek for declaration of ownership by way of adverse possession. The Defendant submits it is the Plaintiffs who are unnecessarily interfering with the property belonging to 3rd Defendant with the malafide intention and in order to have unlawful gain. The Defendant further submits when the 3rd Defendant is the owner in 26 lawful possession of the property in accordance with law, the question of taking possession or dispossessing the Plaintiffs does not arise and question of restoration will not arise. In fact the Plaintiffs have suffered an Interim order before this Hon'ble Court and the said order was not challenged by the plaintiffs.
32. The additional reliefs sought by the Plaintiff are misconceived and they are not entitled for the same.
33. With the above, contentions the third defendant prayed for dismissal of the suit.
34. On the basis of the pleadings of the parties, the trial court has framed the following issues:
(1) Whether the plaintiffs prove that they are in lawful possession of the suit schedule? (2) Whether the plaintiffs prove interference? (3) To what decree and order the parties are entitled for?
Additional issues:
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(1) Whether the plaintiffs prove that they have perfected their title to the suit schedule property by way of adverse possession in view of Sec. 27 of the Limitation Act?
(2) Whether the plaintiffs prove that though the lands were notified in the year 1944, the defendants have not taken possession of the scheduled property by due process of law? (3) Whether the plaintiffs prove that the defendants without any intimation have demolished their residential houses, destroyed the horticultural nursery plants, valuable tress and further they have taken away belongings of the plaintiffs and thus in all the defendants have caused loss to an extent of Rs.52 lakhs as such the defendants are liable to pay the damages?
(4) Whether the defendants prove that the suit schedule property is not an agricultural land and it has lost its nature and characteristics once the land is acquired for public purpose? (5) Whether the defendants prove that the court fee is insufficient and hence unless the court fee is paid on market value the plaint ought to be rejected?
(6) Whether the defendants prove that the plaintiffs have not complied with the mandatory provisions under Section 80 CPC before seeking amendment of the plaint and hence the suit is liable to be dismissed?
(7) Whether the plaintiffs are entitled to the relief of declaration as sought in the amended plaint? 28
35. The plaintiffs in order to prove their case have examined the plaintiff No.2 as PW1 and two more witnesses as P.Ws 2 and 3 and they have produced certain documents which were marked as Ex.P1 to P 71.
36. On behalf of the defendants an official from third defendant - institution came to be examined as DW 1 and they have produced 11 documents which were marked as Ex. D 1 to D 11.
37. The trial court upon consideration of oral and documentary evidence on record answering issue No.1, 2 and Additional Issue No.1 to 3 in the negative and the Additional Issue No.4 to 6 in the affirmative by impugned Judgment and decree dismissed the suit of the plaintiffs. The plaintiffs aggrieved by the said judgment and decree of the trial Court have preferred this appeal.
38. After hearing the learned Counsel appearing for the parties on the main appeal as well as on IA I/2013 filed under Order VI Rule 17 of CPC and perusing the 29 Judgment and decree of the Trial Court including its records the points that arise for our consideration in this appeal is :
Whether the judgment and decree passed by the trial court calls for our interference?
39. Sri. Laxminarayana Rao, learned counsel appearing for the plaintiffs/appellants herein submits that the judgment and decree passed by the trial court is liable to be set aside as the same suffers from arbitrariness besides being perverse. The trial Court has erred in dismissing the suit of the appellants on surmises and conjectures without considering the oral and documentary evidence available on record in proper perspective.
40. He submits that the trial Court has grossly failed to notice the documentary evidence produced by the plaintiffs at Ex. P 49 to P 50, which are photographs and negatives to show the existence of more than 45 30 years old coconut trees, jam tree and other types of trees, as well as the existence of nursery plants.
41. He submits, that the trial Court has erred in not considering Ex. P 51 paper cutting which discloses the illegal acts committed by the respondents in demolishing the horticultural nursery and buildings put up by the appellants there on holding that, the same is in substantial proof of evidence.
42. He submits, that the trial Court has erred in holding that, the plaintiffs have failed to prove their lawful possession over the schedule properties, though sufficient documents were produced before the Court to show the possession of appellant Nos 1 and 2 in respect of the land in question and running nursery thereon much prior to filing of the suit till 31.12.2001, the date of illegal acts committed by the respondents.
43. He submits that the trial Court has failed to appreciate that, when the respondents claim to be in possession of the lands in question there was no 31 occasion for the respondents to act illegally on 31.12.2001 to demolish the residential houses and labour quarters put up by the appellants and horticultural nursery grown by the appellants.
44. He submits that the trial Court also failed to notice that on 31.12.2001, respondent No.3 has filed a complaint against plaintiff Nos. 1 and 2 for having obstructed for illegal dispossession, which is marked at EX. P 53 and on the basis of complaint lodged by respondent No.3, the Wilson Garden police registered the case, drawn mahazar and filed charge sheet, which are all documents available at Ex. P 52, P 54 to P 58, which clearly goes to show the illegal dispossession.
45. He submits that the trial Court has erred in not noticing the scope of the suit as the plaintiffs had sought injunction not to interfere with their peaceful possession without due process of law and further for restoration of possession of the schedule property as the plaintiffs were wrongfully dispossessed on 31.12.2001 during pendency of the suit as per Section 6 of the 32 Specific Relief Act and it has erred in deciding the title of the parties which has no scope under Sec. 6 of the said Act.
46. He submits that the trial Court has misdirected itself in holding that, the evidence of PW1 to PW 3 are consistently inconsistent with one another though they deposed before the Court consistently in support of the case filed and documents produced.
47. He submits that the trial Court has failed to consider that though the land in question was proposed to be acquired during 1944, no proof was produced for having taken possession thereof.
48. The Trial Court has erred in relying upon the attested copy of the proceedings Ex. D 7 to the effect that, 14 acres of land including the land at Sy. Nos. 2/2 and 2/3 of Byrasandra Village was handed over to NIMHANS on 19.10.1987 and mutation for the year 1997-98 without producing any document for having 33 taken possession from the erstwhile owner of the land in question.
49. He submits, that the trial Court has failed to apply the settled principles of law that, even rank trespassers' settled possession should be protected against the illegal dispossession. However, the trial Court has gone on holding that, the appellants have failed to prove their title to the property though the appellants never claimed any title thereof.
50. He submits that the trial Court has erred in holding that, predecessor in title has not challenged the acquisition proceedings though it is proved that, acquisition proceedings came to be lapsed for having not taken further step thereof.
51. He submits that the trial Court has erred in holding that Sy. No. 29/3 measuring 4 acres 30 guntas has been re-numbered as Sy. Nos. 2/1, 2/2, 2/3 and 2/4 though no supporting documents were produced. 34
52. He submits that the subject matter of suit O.S. No.2456/1986 is nothing to do with the plaint schedule property as the same was concerning survey No.2. The trial Court has erred in holding that the subject matter in the said suit is in respect of the plaint schedule property. The judgment in the said suit also proves that, the first appellant was in possession of the schedule properties as on the date of filing of the said suit. This fact is lost sight off by the trial Court.
53. He submits that the trial Court has erred in holding that, the plaintiffs have not complied with the mandatory requirement under Section 80 of CPC though no notice was required to be issued as the respondents started acted illegally without any semblance of right and if such notice was required the same could be waived due to urgency of the matter and illegal acts committed by the respondents during the pendency of the suit and also much earlier to filing of the suit.
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54. He submits that the trial Court has erred in holding that, the appellants had challenged the acquisition proceedings before the City Civil Court though no such challenge was made except contending that no possession was taken pursuant to the notification and no order was passed and thereby the said application came to be lapsed.
55. The trial Court has erred in holding that the acquisition proceedings validly concluded under the provisions of the Land Acquisition Act though no documentary proof was produced by the respondents in that regard.
56. He submits that the trial Court though accepted the principle that the trespasser is entitled to defend against rightful owner has failed to appreciate the documentary evidence produced to prove the settled position of law in question by the appellants herein. The trial Court has erred in holding that the casual and stray act of possession litigious or interrupted possession rather does not confer any so called right in 36 favour of the plaintiffs. Even otherwise the judgment and decree impugned herein are opposed to law, facts and probabilities of the instant case.
In support of his contention he relied upon the following judgments:
i) (1957) SCR 595 Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil & Others
ii) (1957) SCC 605 Sardar Inder Sing vs The State of Rajasthan
iii) AIR 1969 SC 1267 Jai Jai Ram Manohar Lal vs National Building Material Supply, Gurgaon.
With this, he prays for allowing the appeal by setting aside the impugned judgment and decree passed by the Trial Court.
57. Per contra, Sri Sangamesh G.Patil, learned High Court, Government Pleader appearing for Defendant 1 and 2 submits that the plaintiffs have not described the suit property with reference to Sy. No. 28 as described in Ex.P1 - partition deed. Therefore, the plaintiffs 37 herein have not described the suit properties properly and are not entitled to any reliefs as claimed in the suit.
58. He submits plaintiffs have not led any evidence about the extent possession and enjoyment of the suit properties.
59. He submits plaintiffs' case has to fail because of inconsistency between the pleadings and evidence.
60. He submits that suit is not maintainable in view of bar under Section 9 of CPC. In support of his said submission he relied upon the judgment of Supreme Court in the case of LAXMICHAND vs GRAM PANCHAYATH reported in AIR 1996 SC 523 and State of Punjab vs Amarjit Singh reported in 2012 AIR SCW 1177.
61. Sri A. Madhusudhan Rao, learned counsel appearing for defendant No.3 apart from repeating the submissions made by Sri Sangamesh G.Patil, learned HCGP, for defendants 1 and 2, submits plaintiff No.3 having conceded the acquisition proceedings initiated by 38 defendants 1 and 2 cannot question the possession of the suit property by the defendants, which amounts to challenging the acquisition of suit properties indirectly.
62. He submits the plaintiffs complaining of their illegal dispossession of the suit schedule property have filed W.P. No. 816-818/2002 and claim damages in respect of suit Sy. No. 29/3. In the said writ petition they have not said anything about the Sy. No.28.
63. He submits that the writ petitions and documents produced along with the said writ petitions are confronted to PW1 during his cross examination and marked as Ex.P26, from which it is clear that plaintiffs were not in possession of the suit schedule property as on the date of institution of the suit.
64. He submits boundaries furnished to the suit schedule property with respect to Sy. No. 28 and 29/3 tallies with the boundaries furnished in Ex.P1 - partition deed of the year 1927 in respect of Sy. No. 28. Thereby he submits Sy. No. 29/3 never made as subject 39 matter of the suit. He submits as per Ann.B to the writ petition Sy. No. 28 is described as 28/1, 2, 3 and 4, but in the suit plaintiffs have described the same as Sy. No.
28.
65. He submits the plaintiffs relied upon Ex.P9 to P71, to establish their possession but none of these exhibits show they were in possession of the said survey numbers. On the other hand in Col. No.10 of the Revenue records, it is mentioned that the said properties have been acquired in the year 1941 and possession was taken by the Government for establishment of Central Jail. He submits PW1 during his cross examination has categorically admitted that he does not know the extent of land in Sy. No. 28 but plaintiffs are in possession of 22 guntas of land in Sy. No. 28.
66. He submits judgment and decree passed by the trial court are based on proper appreciation of oral and 40 documentary evidence on record and there is no scope for interference and he prays for dismissal of the appeal.
67. The plaintiffs 1 and 2 are father and son. Plaintiff No.1 died during the pendency of the suit and therefore his wife Krishnamma was brought on record as plaintiff No.1a. in addition to their son Ramesh who was already on record as plaintiff No.2.
68. The plaintiffs 1 and 2 in order to prove their case that the suit land measuring 4 acres 30 guntas bearing Sy.No. 28 and 29/3 of Byrasandra village, Uttarahalli Hobli, Bangalore South Taluk, originally belonged to the father of the plaintiff No.3, and he leased the same in favour of plaintiff No.1 and since then, plaintiff No.1 has been in lawful possession and enjoyment of the suit land and he has been paying lease rent on the suit land. The plaintiffs 1 and 2 have established successful business in the suit land in running plant nursery and they have earned reputation by renowned horticulturists in India and abroad and they have been 41 residing in the suit land along with their family members. That being so, the second defendant through his subordinates along with the third defendant started interfering with the possession and enjoyment of the suit land by the plaintiffs 1 and 2 and threatened them stating that they will be forcibly dispossessed from the suit land and they have prevented the vehicles coming to the suit land for picking up the saplings which are required to be distributed to their customers. The plaintiff No.1 and his family members who were continuously enjoying the suit land without any disturbance by any persons including the defendants since more than 60 years and though the suit lands were notified for acquisition in the year 1944, till day possession of the same was not taken over by means of any provisions of law and if the first defendant presumes they are the owners of the suit land since 1944 they could have taken possession from the plaintiffs by means of law, but they have allowed the plaintiffs to enjoy peaceful possession of the suit land till today and therefore plaintiffs No.1 and 2 have 42 perfected their title by way of adverse possession in view of Sec.27 of the Limitation Act and hence they are entitled to file this suit for declaration and to prove their further case that during the pendency of the suit on 31-12-01 defendants 2 to 6 came along with their henchmen near the suit property abruptly with JCBs, bulldozers and trucks and demolished the residential houses of the plaintiffs and their labourer's quarters and they have removed all the belongings from their houses and they have destroyed horticultural nursery plants and other valuable belongings of the plaintiffs. Further defendants after illegally dispossessed the plaintiffs from the suit land, cut and removed the fruit yielding jackfruit, mango, guava, neem and other trees which were grown by the plaintiffs in the suit land and thereby they have caused damage to the extent of Rs. 52 lakhs. Therefore, plaintiffs are entitled for the declaratory reliefs as sought in the plaint and direction to the defendants to restore their possession and pay damages of Rs.52 lakhs have examined the second plaintiff as P.W.1 and two witnesses stated to have been 43 working as gardeners under plaintiffs 1 and 2 as P.Ws. 2 and 3 and have produced certain documents which were marked as Exs. P.1 to P.71.
69. Whereas defendants have denied the case of the plaintiffs as false and incorrect and they have contended that the then Maharaja of Mysore had issued the notification dt. 29-9-1944 in exercise of the powers under the Land Acquisition Act and acquired Sy.No.29/1, 29/2 and 29/3 of Byrasandra village, Uttarahalli hobli, Bangalore South Taluk, for the benefit of SDM and since then defendants are in possession and enjoyment of the said lands. Subsequently, Government by its order dt. 3-4-1981 ordered for handing over of the aforesaid lands in favour of defendant No.3 for construction of new block of OPD. In the year 1987, possession of these lands were actually handed over to NIMHANS and since then possession of the land is with the NIMHANS. The defendant No.3 in their additional written statement have contended that the lands bearing Sy.No. 28 and 29 44 of Byrasandra village have been notified and acquired by the then Government of Mysore through His Highness the Maharaja of Mysore for the purpose of general public and Tuberculosis Sanitorium and possession of the suit land along with other Sy. Nos. have been taken within 15 days from the date of publication of notice under Sec. 9(1) of the Land Acquisition Act and possession of the suit land along with other lands was handed over to this defendant on 9-10-1987.
70. The defendants in support of their case, have examined an official from the third defendant - Institution by name B.N.Satish, working as R.M.O. as D.W.1 and they have produced the documents referred to in their written statement which were marked as Exs. D.1 to D.11.
71. As per the revenue records produced at Exs. P.2 to P.10, both the suit Sy.Nos. 28 and 29 have been phoded. Sy.No.28 was phoded as Sy.No.28/1 45 measuring 3 acres 33 guntas, 28/2 measuring 1 acre 12 guntas, 28/3 measuring 2 acres 10 guntas and 28/4 measuring 32 guntas. Sy.No.29 was phoded as Sy.No. 29/1 measuring 8-22 guntas, 29/2 measuring 2-33 guntas and 29/3 measuring 4 acres 33 guntas.
Each sub-survey number has got different extent and separate boundaries. The extent of land mentioned as 4 acres 30 guntas in the schedule to the plaint does not pertain to any sub-survey number of either Sy.No.28 or 29. Similarly, the common boundaries furnished to both the suit Sy.No.28 and 29/3 in the schedule to the plaint is that of the boundaries of Sy.No.28 before it was phoded as evident from the partition deed Ex.P.1. From this it is very much clear that the property as described in the schedule to the plaint is not at all in existence and therefore no relief can be granted to the plaintiffs. The trial Court could have framed an issue in this regard and dismissed the suit on the sole ground of mis-description of schedule to the plaint.
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72. The first plaintiff claimed to have come into possession of suit Sy.No.28 and 29/3 in the year 1942 by virtue of a lease stated to have been granted by the father of plaintiff No.3 in his favour.
73. It is relevant to mention here that Sy.No.28 of Byrasandra village was phoded as Sy.Nos. 28/1. 28/2, 28/3 and 28/4 in the year 1941 itself as evident from Annexure B to the W.P.No.816-818/2002 which is marked as part of Ex.P.26 series during the course of cross examination of P.W.1.
74. As per Ex. P 1 a certified copy of the registered partition deed dt. 7-5-27 only an extent of 4 acres 19 guntas of land in Sy.No.28 of Byrasandra village was allotted to the share of Kempanna the father of the plaintiff No.3 and he had not inherited any land in Sy. No. 29 much less in the suit Sy. No.29/3. Therefore in the year 1942 the question of Kempanna leasing either suit Sy.No.28 or Sy. No.29/3 in favour of the first 47 plaintiff as contended by the plaintiffs does not arise. Further the plaintiffs have not produced any document to show the father of plaintiff No.3 had leased either suit Sy. No. 28 or Sy. No.29/3 in favour of the first plaintiff.
75. In Ex.P.2 - RTC in respect of Sy.No.29/3 for the years 1969-70 to 1973-74, the name of Subbarayappa is shown as khatedar and in the cultivator's column it is mentioned as `banjaru'.
In Exs.P.3, P.4 and P.5 - RTCs in respect of Sy.No. 29/3 for the years 1974-75 to 1979-80, 1980-81 to 1984-85 and 1985-86 to 1989-90 respectively, the BDA is shown as khatedar and the name of Subbarayappa is put within bracket and in the cultivator's column it is shown as CITB acquisition.
In Ex.P.6 - RTC in respect of Sy.No.29/3 for the years 1997-98 to 1999-2000 SDG-CD is shown as khatedar and the name of BDA is put within bracket and in the cultivator's column it is shown as BDA. 48
In Ex.D.10 - RTC in respect of Sy.No.29/3 for the year 2002-03 NIMHANS is shown as khatedar and in the cultivators column it is mentioned as NIMHANS and SDS-CD hospital.
In Exs. P.7 to P.10 - RTCs in respect of Sy.No. 28/1, 28/2, 28/3 and 28/4 for the years 1997-98 to 1999-2000 the BDA and the Central Jail are shown as khatedars and in the cultivators column it is shown as Central Jail.
In Ex. D.11 - RTC in respect of Sy.No.29/3 for the year 2003-04 NIMHANS is shown as khatedar and in the cultivators column it is shown as NIMHANS and SDS-CD hospital. Under the column `Name of crops' it is shown as building.
In none of the above Exs. P.2 to P.10 and D.10 and D.11 relating to suit Sy.Nos. 28 and 29/3, the 49 names of plaintiffs are shown either in the khatedar column or in the cultivators column.
76. It is needless to state, entries in revenue records have got presumptive value with regard to ownership and possession of such land as per Section 133 of the Karnataka Land Revenue Act.
77. Plaintiffs have produced 27 receipts issued by Executive Engineer, Mysore Public Works Department, working under the first defendant, regarding payment of lease amount. P.W.1 in his evidence has stated the said payments are for the purpose of utilizing the road formed by NIMHANS to reach the suit schedule lands. By a careful perusal of each receipts, it is found except receipt dt. 3-9-52 issued in the name of Arasappa of Byrasandra village - the deceased first plaintiff in respect of Sy.No.29/3 measuring 3 acres 12 guntas, other receipts are not issued in the name of plaintiffs and they are issued in the names of different persons in respect of different survey numbers including 50 Sy.No.29/3. It is to be observed that possession of plaintiffs 1 and 2 if any, it was in respect of Sy.No.29/3 measuring 3 acres 12 guntas on the basis of licence issued for a particular period and it lapses on the expiry of the period for which it was issued.
78. On the other hand, plaintiff No.2 examined as P.W.1 in the suit, has admitted in his cross examination that they are (plaintiffs) in possession of 22 guntas of land in Sy.No.28. He does not know the boundaries for the said 22 guntas. He also does not know in which sub-Sy.No. of Sy.No.28 the said 22 guntas comes.
Therefore, it has to be held that the plaintiffs have failed to prove that plaintiffs 1 and 2 have been in possession and enjoyment of the suit land by virtue of an alleged lease stated to have been granted by the father of plaintiff No.3 in favour of first plaintiff and failed to prove that they have perfected their title to the suit land by way of adverse possession as contended by them. Therefore the trial Court is justified in answering 51 Issue No. 1 and 2 and additional issue Nos. 1 and 3 in the negative and against the plaintiffs.
79. The third defendant - NIMHANS in para 3 of their additional written statement has specifically contended that Sy.No.28 and 29/3 of Byrasandra village have been notified and acquired by the then Government of Mysore through His Highness, the Maharaja of Mysore for the purpose of general public and Tuberculosis Sanitorium vide notification No. PW.1888-90 dt. 29th September, 1944 under Secs. 4 and 7 of the Land Acquisition Act, 1894 and under sub-Section 1 of Sec. 17 of the said Act and possession of the suit land along with other survey numbers have been taken within 15 days from the date of publication of the notice under Sec. 9(1) of the Act and notification was published in Mysore Gazette dt. 26-10-1944. It has further contended that in pursuance of the proceedings of the Government of Karnataka dt. 3-4-81, the possession of the suit land and other lands was handed over in favour of third 52 defendant on 9-10-87 and since then the third defendant is in possession of the suit land.
80. As per Annexure B to the writ petition 816- 818/2002 which is marked as part of Ex.P.26 series, during the course of cross examination of P.W.1, Sy.Nos. 28/1, 28/2, 28/3 and 28/4 and other survey numbers came to be acquired in favour of Central Jail, Bangalore vide notification No. PW.1119-21-S dt. 20-8-41 published in the Mysore State Gazette dt. 4-9-41. Pursuant to the said notification, khatha of these survey numbers 28/1. 28/2, 28/3 and 28/4 was mutated in the name of Central Jail as evident from Exs. P.7 to P.10.
81. Similarly, land bearing suit Sy.No.29/3 and other survey numbers came to be acquired by Government of Mysore, through His Highness, the then Maharaja of Mysore vide notification No. PW.1888-90 dt. 29-9-44 for the benefit of Tuberculosis Sanitorium as evident from Exs. D.4 and D.5.
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82. As per Ex.D.6, possession of lands acquired under Exs. D.4 and D.5 was ordered to be transferred in favour of NIMHANS for construction of new OPD Block and as per Ex.D.7 - letter dt. 19-10-87 addressed by Assistant Executive Engineer, No.8 Buildings sub- division, Bangalore to the Executive Engineer, PWD NIMHANS, actual possession of the land was handed over to NIMHANS on 9-10-87 along with the sketch Ex.D.8.
83. Ex.D.9 discloses khatha of several numbers including Sy.No. 29/3 came to be mutated in favour of SDS and CD hospital pursuant to acquisition of the said land and as per the order of the Assistant Commissioner in case No. RRT.CR.238/96-97.
84. From the above material it is clear that Sy. No. 28/1,28/2, 28/3 & 28/4 along with other lands came to be notified for acquisition in the year 1941 for the benefit of Central Jail. Similarly, lands in Sy. NO.29/1, 54 29/2 & 29/3 along with other lands came to be notified for acquisition in the year 1944 for the benefit of S.D.S & C.D. hospital. In the year 1981 it was ordered to be transferred in favour of third defendant NIMHANS and actual possession of these lands was handed over in favour of NIMHANS in the year 1987.
85. It is to be noted that the validity of acquisition of the above said lands was never challenged by any person including the plaintiffs as illegal. The plaintiff No.3 though has joined plaintiffs 1 and 2 in filing the suit, he has not sought any relief in the suit for himself. If that is so, if the reliefs sought for by plaintiffs 1 and 2 in the suit is granted it amounts to rendering the acquisition as null and void and such a relief cannot be granted in a suit by Civil Court in view of bar under Section 9 of CPC as has been held by the Apex Court in the case of Laxmichand vs. Gram Panchayath reported in AIR 1996 SC 523 and State of Punjab vs. Amarjit Singh reported in 2012 AIR SCW 1177. In fact, the trial 55 Court could have framed an issue in this regard and dismissed the suit for want of jurisdiction.
86. According to the plaintiffs 1 and 2 suit lands are still agricultural lands and they are growing horticultural crops and plant nursery and supplying the same to their customers for price.
87. Even if we presume the case of the plaintiffs 1 and 2 that the father of plaintiff No.3 had leased the suit lands in favour of the first plaintiff and plaintiffs 1 and 2 have been cultivating the same as tenants under him, as true, the plaintiffs should have filed Form No.7 before the concerned Land Tribunal seeking to register them as occupants under the provisions of Land Reforms Act. Whether plaintiffs 1 and 2 had been cultivating the suit lands as tenants under the father of plaintiff No.3 and they continued to do so even after acquisition of the lands by the then Maharaja of Mysore by virtue of notification dt. 1-9-41 and 29-9-44 for the benefit of Central Jail and SDS Sanitorium, Bangalore, 56 respectively, the said issue cannot be adjudicated in the instant suit by Civil Court in view of complete bar imposed under Sec. 132 of the Karnataka Land Reforms Act, herein after referred to L.R. Act as a jurisdiction to decide an issue as to whether any agricultural land is a tenanted land or not is exclusively vests with the concerned Land Tribunal under Section 133 of the said Act. In any suit, if an issue relating to tenancy/lease of an agricultural land is involved, the concerned party who claims right, title, interest or possession in respect of the said land by virtue of any lease, oral or written, he should make an appropriate application requesting the Court in which that suit is pending seeking to refer the issue relating to lease/tenancy to the jurisdictional Land Tribunal to give its finding on such lease/tenancy and till such time, he could request the Court to stay further proceedings of the suit. Therefore the right title, interest or possession claimed by plaintiffs 1 and 2 in respect of the suit lands by virtue of an alleged lease stated to have been granted by the father of plaintiff No.3 in favour of first plaintiff cannot be adjudicated in 57 the instant suit by the trial Court and in fact the trial Court could have framed an issue to this effect and it could have dismissed the suit of the plaintiff on this score alone without going into the other aspect of the matter.
88. Admittedly, plaintiffs have paid the Court fee on the plaint on the basis of land revenue of the suit lands. As stated above, lands bearing Sy.No.28/1, 28/2, 28/3 and 28/4 were acquired along with other lands in the year 1941 for the benefit of Central Jail and lands bearing Sy.No. 29/1, 29/2 and 29/3 came to be acquired along with other lands for the benefit of SDS and CD hospital and later it was transferred in favour of third defendant - NIMHANS. When agricultural lands are acquired for non-agricultural purposes, they lose the characteristic of agricultural lands and they will be assessed to tax by the concerned Municipality or Corporation as the case may be. Therefore, the defendants are justified in contending the Court fee paid by the plaintiff on the basis of land revenue of the suit 58 land is insufficient and not proper. The trial Court considering this aspect of the matter is justified in holding Issue No.5 regarding Court fee in favour of the defendants and dismissing the suit of the plaintiff on this ground also.
89. The suit was initially instituted for the relief of permanent injunction. Subsequently the plaintiffs got the plaint including the prayer amended seeking the relief of declarations thereby they converted the simple suit brought for the relief of bare injunction into a comprehensive suit. Admittedly, the plaintiffs have not issued any notice to the defendants under Section 80(1) of C.P.C. before seeking amendment to the suit including the prayer for declaration. The leave obtained by the plaintiffs under Section 80(2) of CPC while instituting a suit for bare injunction without complying the mandatory provisions of Section 80(1) of CPC cannot be said that it holds good even for conversion of the said suit into a comprehensive suit. The trial Court considering this aspect of the matter and relying upon 59 the judgment of this Court in the case of Dr. B. Singh vs Union of India and Others reported in ILR 2004 Kar. 1779 is justified in answering issue No. 6 in the affirmative holding that the defendants have proved that the plaintiffs have not complied with the mandatory requirement of Section 80 (1) of C.P.C. before seeking amendment of the plaint.
90. There is no merit in the contention of learned Counsel for the plaintiffs/appellants that the plaintiffs who were in settled possession and enjoyment of the suit land since more than 60 years dispossessed by the defendants from the possession of the lands illegally and without due process of law and therefore they are entitled for restoration of possession of the land in their favour as per Section 6 of the Specific Relief Act for the following reasons.
91. Firstly, the suit is not brought under Section 6 of the said Act. Secondly no suit under Section 6 of the Act is tenable against the Government. Thirdly 60 according to the plaintiffs No.1 and 2 they were dispossessed from the possession of the suit lands by the defendants illegally on 31.12.2001. They have made the application seeking amendment of the plaint including the prayer for restoration of possession of land in their favour on 03.08.2002. Whereas the suit brought under Section 6 of the Act beyond six months from the date of dispossession is not maintainable.
92. We have carefully considered the arguments advanced by the learned Counsel appearing for the parties and perused the judgment and decree of the trial Court and we found no illegality or irregularity in the said judgment of the trial Court warranting our interference.
93. There is no merit in any of the contentions urged by the learned Counsel for the plaintiffs/appellants. The judgments relied upon by him have no application to the facts of the case.
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94. The suit of the plaintiffs is not only liable to be dismissed for the reasons stated in the judgment of the trial Court, it could have also been dismissed for other reasons stated in the course of our judgment.
95. That after the appeal was listed for hearing, the appellants have filed IA I/2013 under Order VI Rule 17 CPC seeking permission of the Court to amend the schedule of the plaint by permitting them to delete Sy. No.29/3 and to mention the extent of land as 4 acres 19 guntas in place of 4 acres 30 guntas.
96. The said application was opposed by the learned Counsel for the respondents stating that the amendment sought for by the plaintiff would change the cause of action and the nature of the suit, it is highly belated and if it is allowed it would cause serious prejudice to the case of the defendants and they prayed for dismissal of the application.
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97. The case of the plaintiffs was based on a contention that the father of plaintiff No.3 namely Kempanna was the owner of the suit land bearing Sy. No. 28 and 29/3 measuring 4 acres 30 guntas situated at Byrasandara village and he inherited the same from his forefathers. In support of the said contention the plaintiffs have relied upon Ex P.1 the registered partition deed dated 07.05.1927. The plaintiffs after realizing that under Ex P 1 partition deed the said Kempanna was allotted only 4 acres 19 guntas of land in Sy. No.28 of Byarasandra Village to his share and he had not inherited any land in Sy. No.29/3 have brought this application for amendment at this belated stage.
98. As already discussed above the Sy. No.28 was phoded as Sy. Nos. 28/1 measuring 3 acres 33 guntas, 28/2 measuring 1 acre 12 guntas, 28/3 measuring 2 acres 10 guntas and 28/4 measuring 32 guntas prior to 1941 itself as evident from Annexure B to the Writ Petition Nos.816-818/2002 which is marked as Ex. P 26 series which is also evident from the RTC produced at 63 Ex. P7 to P 10. From this it is clear that Sy. No.28 was not in existence as on the date of institution of the suit itself much less on the date of filing of this application for amendment .
99. Further PW 1 in the course of his cross examination has admitted that they (plaintiffs) are in possession of 22 gutas of land in Sy. No.28 and he does not know the boundaries of the said 22 guntas of land and he also does not know in which sub survey number of survey No.28 this 22 guntas is situated.
100. The plaintiffs while instituting the suit have furnished common boundaries in respect of both the suit Sy. Nos. 28 and 29/3 and even their pleadings in respect of both the suit survey numbers is common and there is no distinct and separate pleadings in respect of each Sy. No. 28 and 29/3. Therefore, it is to be held that the amendment sought for by the plaintiffs would not only change the cause of action it would also change the very nature of the suit and further it would cause serious 64 prejudice to the case of the defendants and no purpose will be served in allowing the application and remanding the matter to the trial Court as requested by the learned Counsel for the plaintiffs. Therefore the application is liable to rejected as devoid of merit.
101. Accordingly we dismiss the appeal as also IA I/2013 as devoid of merits.
No order as to costs.
Sd/-
JUDGE Sd/-
JUDGE Vb/mgn/-
CT: Hmr