Karnataka High Court
B G Ramaswamy vs Dr B G Srinivasa Murthy on 13 November, 2020
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE E.S.INDIRESH
R.F.A.No.112/2012
BETWEEN :
B.G.RAMASWAMY
SINCE DEAD BY HIS LRs.
1(a) SMT.D.R.NAGAVENI
W/O LATE B.G.RAMASWAMY
AGED ABOUT 72 YEARS.
1(b) SRI B.R.GOWRI PRASAD
S/O LATE B.G.RAMASWAMY
AGED ABOUT 48 YEARS.
1(c) SRI B.R.KIRAN,
S/O LATE B.G.RAMASWAMY
AGED ABOUT 44 YEARS.
ALL ARE R/AT No.93,
'RATNAVILAS, I CROSS,
KIRLOSKAR COLONY,
BEHIND LIC COLONY,
BANGALORE-560079.
(CAUSE TITLE AMENDED VIDE
COURT ORDER DATED 28.11.2014) ...APPELLANTS
(BY SRI UDAYA HOLLA, SENIOR COUNSEL A/W
SRI SANJAY NAIR, ADV.)
-2-
AND :
1. Dr. B.G.SRINIVASA MURTHY
S/O LATE B.GUNDU RAO
AGED ABOUT 64 YEARS
NO.875, RAJENDRA PRASAD ROAD
FIRST "E" MAIN ROAD
GIRINAGAR II PHASE
BANGALORE-560085
2. B.G.SATHYANARAYANA
(DIED ON 08.09.2013,
APPELLANT, R-1 & R-3 ARE LRs OF R-2
ALREADY ON RECORD
(CAUSE TITLE AMENDED VIDE
COURT ORDER DATED 29.11.2013.)
3. SMT.ANNAPOORNA
W/O M.S.SUNDARESHA
AGED ABOUT 57 YEARS
NO.6, "MADHAVI", GROUND FLOOR,
SIRUR PARK ROAD, SESHADRIPURAM
BANGALORE-560020 ...RESPONDENTS
(BY SRI S.S.SRINIVASA RAO, ADV. FOR R-1;
SRI C.R.RAVISHANKAR, ADV. FOR R-3;
R-2 IS DEAD & APPELLANT, R-1 & R-3 ARE TREATED AS HIS
LRs VIDE COURT ORDER DATED 29.11.2013.)
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 18.10.2011
PASSED IN O.S.NO.7182/1998 ON THE FILE OF THE XXXVIII
ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BANGALORE,
DISMISSING THE SUIT FOR DECLRATION, MANDATORY
INJUNCTION, POSSESSION AND MESNE PROFITS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
09.10.2020, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, S. SUJATHA, J., DELIVERED THE
FOLLOWING:
-3-
JUDGMENT
This appeal is directed against the judgment and decree dated 18.10.2011 passed in O.S.No.7182/1998 on the file of the XXXVII Additional City Civil and Sessions Judge (CCH-38), Bangalore City ('Trial Court' for short).
2. For the sake of convenience, the parties are referred to as per their status before the Trial Court.
3. The suit property is the House Site No.76/A, West of Chord Road, II Stage Extension, Bangalore City, bounded on East by Site No.75/A, West by Road, North by Site No.76 and South by Site No.77, measuring East-
91.0" + 90" 30.6" + 29.6".
West and North - South
2 2
4. The plaintiff instituted the suit in
O.S.No.No.7182/1998 against the defendants seeking for the relief of declaration, mandatory injunction, -4- possession and for mesne profits with respect to the suit schedule property.
5. The plaint averments are that the plaintiff and defendant Nos.1 to 3 are the children of late B.Gundu Rao and late Rathnamma of whom, the former died during 1977 and the latter during 1962, both of them died intestate. The mother of the plaintiff and defendant Nos.1 to 3 owned a revenue house site No.42 in Sy.No.157/4 of Kyathamaranahalli, Yeshawanthapura Hobli, Bangalore North Taluk, measuring East - West; 56 feet and North - South; 30 feet, having purchased the same on 08.10.1959 by a registered sale deed (Ex.P1) from one Sri. Siddegowda and Sri. P.S. Muniswamy Naidu. The said Sy.No.157/4 along with other survey numbers came to be acquired by the erstwhile City Improvement Trust Board, Bangalore (C.I.T.B.) by issue of final declaration under Section 18 of the City Improvement Trust Board Act vide -5- LMA 112 MNJ 67 dated 15.11.1967 for the formation of the West of Chord Road, II Stage Layout. The possession of the land was taken and the layout was formed by the C.I.T.B., whose successor is the Bangalore Development Authority (BDA) - defendant No.4 in the suit. The erstwhile C.I.T.B., its successor BDA reconveyed or reallotted the acquired sites to the respective site owners under a scheme promoted by the C.I.T.B. with the concurrence of the State Government. Smt. Rathnamma, the mother of the plaintiff also moved the C.I.T.B. for securing the reconveyance of the revenue site which was lost during her life time. On her death, the father of the plaintiff did so without success.
6. It was contended that the plaintiff and defendant Nos.2 and 3 filed a joint affidavit and indemnity bond dated 16.06.1979 as required by defendant No.4 seeking reconveyance or allotment of an alternative site lost by their mother in the name of the -6- defendant No.1 on their behalf. They never relinquished their right to get the alternate site in favour of the defendant No.1 on their behalf also. It was done to facilitate the process of reconveyance. In the meanwhile, by a registered deed of relinquishment dated 18.06.1979, defendant Nos.1 to 3 for consideration received, relinquished all their rights on their property left behind their parents in favour of the plaintiff. In order to clarify the position, they made a joint statement in the form of an admission of fact in writing on the same day stating that the defendants have no right whatsoever in the properties left behind their parents. The efforts made by the plaintiff to get the site reconveyed by the defendant No.4 did not materialize due to the delayed action of the defendant No.4. However, the plaintiff came to know at the time of filing of the suit that the defendant No.1 by suppression of the fact of execution of the deed of relinquishment dated 18.06.1979 and the statement made on the same -7- day, has obtained the registered sale deed from defendant No.4 on 03.07.1998, in respect of site No.76/A, West of Chord Road, II Stage, Bangalore, by practicing fraud on the plaintiff and also on the defendant No.4 by misrepresenting the facts. The plaintiff is the full and absolute owner of the suit schedule property under the reconveyance deed and defendant Nos.1 to 3 have no right, title and interest in the same. However, by way of abundant caution, in order to overcome any exigencies that may arise, the plaintiff has alternatively sought for partition and separate possession of 1/4th share in the suit schedule property as the legal heir of deceased mother Rathnamma, who had the right of reconveyance to get a site allotted in lieu of the revenue site No.42 lost by her in the acquisition proceedings initiated by the erstwhile C.I.T.B. Thus, it was claimed that the plaintiff's possession is joint and as a co-sharer in case if it is held -8- that he is not the full owner. Accordingly, the relief was sought as under:-
"The plaintiff prays that this Hon'ble Court to decree the suit as follows:-
a) To declare the plaintiff as the full and absolute owner of the suit schedule property;
b) To direct by mandatory injunction, the first defendant to execute a registered sale deed in favour of the plaintiff at his cost, free from all encumbrances;
c) To direct the first defendant to deliver vacant possession of the suit schedule property to the plaintiff;
AND
d) To order an enquiry with regard to
mesne profits under Order XX Rule XII of the Code of Civil Procedure;
ALTERNATIVELY
a) To hold that the plaintiff is entitled to 1/4th share in the suit schedule property;
b) For partition and separation of the share of the plaintiff by metes and bounds in the suit schedule property;-9-
c) For any enquiry for mesne profits under Order XX Rule XVIII of the Code of Civil Procedure;
d) Grant such other relief or reliefs as this Hon'ble Court may deems fit under the circumstances of the case and award costs of the plaintiff in the interest of justice and equity."
However, prayer (b) came to be deleted in terms of the request made by the plaintiff.
7. On service of summons, the defendants appeared before the Court through their respective counsels. Defendant No.1 filed written statement denying all the averments made by the plaintiff in the plaint as false, frivolous and vexatious, except admitting his relationship with the plaintiff and regarding purchasing of a site by his mother on 08.10.1959 as contended in the plaint, denying the plaintiff's right, title and interest over the suit property. The defence set out was that Smt.Rathnamma, mother of plaintiff and
- 10 -
defendant No.1 had not given any application for reconveyance. It was learnt that after the death of Smt.Rathnamma, Sri. B.Gundu Rao, their father, without success had filed an application for reconveyance of the very site purchased by Smt. Rathnamma under the registered sale deed dated 08.10.1959. Letter dated 18.06.1979 (Ex.P31) was disputed by the defendant No.1. It was alleged that it was forged and concocted document for the purpose of filing the suit. It was stated that the suit property is not covered by the registered Release Deed dated 18.06.1979. The allegation of fraud made against the defendant No.1 was totally denied. The specific defence was that the suit property was allotted by defendant No.4 - BDA in favour of defendant No.1. The Release Deed dated 18.06.1979 was only in respect of the Pitrarjitha joint family properties and not in respect of the mother's property purchased under the registered sale deed dated 08.10.1959. Mother's property was not
- 11 -
the joint family property. The plaintiff himself is a party to the two documents dated 16.06.1979 viz., joint affidavit and indemnity bond, where un-equivocally he represented to the BDA that the site may be allotted in favour of defendant No.1. Acting on such representation, the defendant No.1 has spent lakhs of rupees and ultimately was able to get the allotment of sale deed in his favour after prolonged correspondence with the BDA and moving around from pillar to post. One Smt. Jayalakshmamma filed W.P.No.22736/1997 challenging the allotment in favour of defendant No.1. After facing the litigation, the defendant No.1 succeeded in the case. Ultimately, Possession Certificate was given in favour of defendant No.1 on 21.07.1998 which was issued pursuant to the execution of registered sale deed dated 03.07.1998 by the BDA in his favour. Defendant No.1 having purchased the suit from its owner - BDA under the registered sale deed for valuable consideration of Rs.1,65,447/- at the rate prevailing in
- 12 -
the year 1995 has incurred huge sum towards the litigation expenses and for constructing the wall apart from the stamp duty and registration charges. He has raised loans for building a house in the suit schedule property. Plan has been sanctioned/approved by the authorities and the licence also has been granted. Referring to the loan raised from Canfin Homes Limited for having mortgaged the suit property for a sum of Rs.4,00,000/- it is stated that the defendant No.1 has deposited the title deeds of the suit property for having borrowed the loan from the Canfin Homes Limited. So the defendant No.1 is the absolute owner in possession of the same. The plaintiff and any other defendants have no right or title over the suit property. Therefore, he requested the Court to dismiss the suit with costs.
8. Defendant Nos.2 and 3 have filed the written statement admitting the averments made by the plaintiff
- 13 -
in the plaint as true and correct further consented to decree the suit as prayed in all.
9. Defendant No.4 filed written statement denying the plaint averments except admitting the fact of acquisition of land in Sy.No.157/4 of Kyathamaranahalli village by the City Improvement Trust Board. Defendant No.4 has admitted the fact of execution of indemnity bond by the plaintiff and defendant Nos.2 and 3 for recoveyance of revenue site No.42 in land Sy.No.157/4 of Kyathamaranahalli village in favour of the defendant No.1. It was stated that on the basis of the representation submitted by the defendant No.1, the matter was placed before the defendant No.4 - Authority for passing necessary orders. In the said proceedings, they have passed a resolution to allot the suit site in favour of the defendant No.1, on the basis of which the suit property was allotted in favour of defendant No.1 at the then prevailing
- 14 -
allotment rates as per the Government Order in Number NAE 488 B. LAQ 96 dated 05.04.1997. The allotment of suit property could not be construed as reconveyance of site under reconveyance scheme, land in Sy.No.157/4 was not included in reconveyance scheme. It pleaded ignorance regarding the inter-se settlement/arrangements said to have taken place between the plaintiff and defendant Nos.1 to 3 as contended in the plaint. Defendant No.4 sought for dismissal of the suit with costs.
10. On the basis of the pleadings, the Trial Court framed the following issues:-
1) Whether the plaintiff prove that land Sy.No.157/4 of Kyathamaranahalli was included within the reconveyance scheme of 4th defendant?
2) Does the plaintiff prove that, his mother has made an application for reconveyance of site purchased by her under sale deed dated 8.10.59?
- 15 -
3) Do plaintiff prove that, he has sought for reconveyance or allotment of alternative site in the name of 1st defendant on their behalf?
4) Do plaintiff prove that relinquishment deed in their favour dated 18.6.79 and thereby he has become absolute owner of the same and defendants 1, 2 and 3 have no right, title and interest on the same?
5) Does plaintiff prove that, the 1st defendant by playing fraud on the plaintiff and the 4th defendant got the suit schedule property reconveyed or allotted in his favour?
6) Whether the plaintiff proves that the allotment of the suit schedule property by the 4th defendant in favour of 1st defendant was in lieu of their mother's revenue site acquired by the 4th defendant and therefore he has got 1/4th share in it?
7) Whether defendants No.1 and 4 prove that the allotment of the suit schedule property in favour of 1st defendant is an outright sale at current rate of allotment as per the G.O. and 1st defendant is the absolute owner thereof?
- 16 -
8) Whether the suit is not maintainable for
non-compliance of Section 64 of the
Bangalore Development Act?
9) Whether the suit is not barred by limitation
as contended by the defendants?
10) Whether the suit is not properly valued and proper court fee is not paid as contended by the defendants?
11) What order or decree?
11. To substantiate the case of the plaintiff, the plaintiff himself got examined as PW.1 and marked 33 documents as Exs.P1 to P33. In support of the case of the defendants, defendant No.3 got examined herself as DW.1 and defendant No.2 got examined as DW.2. Defendant No.1 got examined as DW.3 and got marked 21 documents as Exs.D1 to D21.
12. On appreciation of oral and documentary evidence, the Trial Court dismissed the suit. Hence, the present appeal by the plaintiff.
- 17 -
13. Learned Senior Counsel Sri Udaya Holla representing the plaintiff submitted that the Trial Judge failed to appreciate the fact that the suit property was included in reconveyance scheme. The registered sale deed dated 03.07.1998 executed by BDA in favour of defendant No.1 though styled as sale deed indeed was a reconveyance and not an outright sale to the purchaser. In this regard, attention of the Court was drawn to Ex.P6, resolution of BDA dated 09.01.1995 to contend that it was resolved by the defendants to reconvey site No.42 in favour of defendant No.1. The suit property was indeed reconveyed in favour of defendant No.1 which earlier belonged to the mother of plaintiff and defendant Nos.1 to 3. The possession certificate - Ex.P7 establishes the same where it is mentioned as reallotment/reconveyance. It was argued that Smt. Rathnamma died in the year 1962 whereas the site No.42 belonging to Smt. Rathnamma was acquired by the BDA in the year 1967. Therefore, husband of
- 18 -
Rathnamma Sri. B. Gundu Rao had filed an application for reconveyance. The Trial Court erred in holding that the plaintiff has not produced any document to show that mother of plaintiff had sought for reconveyance. It was argued that the reconveyance was sought by the father of the plaintiff and defendant Nos.1 to 3 and the suit property was reconveyed by relying upon the following documents:-
a) Joint Affidavit and Indemnity bond dated 16.06.1979 executed by all parties (Exs.D20 and D21);
b) Release Deed dated 18.06.1979 and Letter dated 18.06.1979 executed by defendant Nos.1 to 3 (Exs.P2 and P31);
c) Letter of Government to BDA dated 05.04.1997 granting approval to re-convey the property (Ex.P23);
d) Various letters of the 1st defendant to the
BDA seeking for reconveyance of his
mother's property in his favour (Exs.P17 and P18);
- 19 -
e) Letter of 1st defendant dated 05.07.1997 for re-conveyance (Ex.P25);
f) Sale Deed showing it clearly as reconveyance (Ex.P3);
g) Possession certificate (Ex.P7);
h) Endorsement of Assistant Commissioner (Re-conveyance) BDA, dated 06.10.2004 (Ex.P30).
14. It was submitted that as per relinquishment deed (Ex.P2) executed by the plaintiff and defendant Nos.2 and 3, all the rights were released in favour of plaintiff which does not refer to any particular property but all the properties which would certainly include the suit property on reconveyance as well. The Trial Court grossly erred in holding that the relinquishment deed does not mention the schedule or boundaries, hence the said Ex.P2 does not clothe the plaintiff any right over the suit property. In the earlier suit O.S.No.864/1985 filed by the plaintiff seeking for injunction against BDA, plaintiff had not mentioned about Ex.P31. Ex.P6
- 20 -
specifically stated that the site No.76/A is relatable to site No.42 and the resolution of the BDA evinces the reconveyance of the site No.42 (new No.76/A). Defendant No.1 having admitted the signature on Ex.P31, the Trial Court ought not to have disbelieved the said document merely on the statement of the defendant No.1 that the said signature was taken on blank paper. The testimony of defendant No.2 as well as defendant No.3 in respect of the execution of Ex.P31 ought to have been considered by the Trial Court in a right perspective. The finding of the Trial Court that the dimensions and boundaries of site Nos.42 and 76/A are different and as such, it cannot be believed that the suit property was reconveyed, is contrary to the evidence available on record.
15. Learned counsel has placed reliance on the following judgments:-
- 21 -
1) L.V. Hosalappa since deceased by LRs. Vs Bangalore Development Authority and Others1;
2) Smt. Radhamma and Others vs. Smt. Lakshmamma K. Murthy2;
3) Gurukrupa Cooperative Housing Society
Limited vs. Bangalore Development
Authority3;
4) Sahu Madho Das and Others vs. Pandit
Mukand Ram and another4;
5) Krishna Beharilal vs. Gulabchand and
others5;
6) S. Shanmugam Pillai and Others vs K.
Shanmugam Pillai and Others6;
7) Thayyil Mammo and another vs. Kottiath
Ramunni and Others7;
8) Kuppuswami Chettiar vs. A.S.P.A. Arumugam
Chettiar and Another8;
9) Ranganayakamma and Another vs. K.S.
Prakash (Dead) by LRs. And Others9
1
ILR 2001 KAR 1727
2
1995 (4) KLJ 145
3
ILR 2005 KAR 2808
4
AIR 1955 SC 481
5
1971 (1) SCC 837
6
1973 (2) SCC 312
7
AIR 1966 SC 337
8
AIR 1967 SC 1395
9
(2008) 15 SCC 673
- 22 -
16. Per contra, learned counsel for the defendant No.1 supporting the impugned judgment and decree submitted that the defendant No.1 is the absolute owner of the suit property, the same having allotted to him by the defendant No.4 - BDA for a valuable sale consideration of Rs.1,64,447/-. Referring to Exs.D20 and D21, learned counsel contended that Ex.P31 dated 18.06.1979 is forged and concocted document. Prayer No.(b) being deleted, no challenge being made to the sale deed executed by the BDA in favour of the defendant No.1, suit is not maintainable. Reliance was placed on Sections 31 and 34 of the Specific Relief Act, 1963. Denying the execution of Ex.P31, it was argued that the mandate of Section 17 of the Registration Act, 1908 not being complied with, no credence could be given to the said document. It was submitted that the prayer sought in the suit is not supported by pleadings.
At the time of the execution of Ex.P2, the suit property was not in existence. Hence, releasing of any rights with
- 23 -
respect to suit property, in favour of the plaintiff does not arise. Ex.P31 not been proved, no probative value could be given to the same. Reference was also made to the order of this Court in W.P.No.26805/2010. Drawing the attention of the Court to the written statement filed by the BDA, it was argued that the suit property was allotted to the defendant No.1 at the prevailing current rate. Relinquishment of property as contended by the plaintiff does not arise since site No.42 of Smt. Rathnamma was acquired by the erstwhile C.I.T.B. in the year 1967. Ex.P6, the resolution of the BDA being not challenged by the plaintiff, the plaintiff cannot claim that the suit property is reconveyed to the defendant No.1 in view of the acquisition of site No.42 standing in the name of mother of defendant Nos.1 to 3 and plaintiff. It was further submitted the O.S.No.864/1985 filed by the plaintiff against BDA came to be dismissed wherein it has been categorically held that the plaintiff was not in possession of the suit property. Accordingly,
- 24 -
learned counsel sought for the dismissal of the appeal confirming the judgment and decree of the Trial Court.
17. Learned counsel has placed reliance on the following judgments:-
1) Vinay Krishna vs. Keshav Chandra and another10;
2) S. Suryanarayana Setty and others vs.
Bangalore Development Authority,
Bangalore11;
3) Janatha Dal Party, Bangalore vs. The
Indian National Congress and Others12;
4) Union of India vs. Vasavi Cooperative Housing Society Limited and others13;
5) Nagubai Ammal and others vs. B. Shama Rao and Others14;10
1993 Supp (3) SCC 129 11 (1998) 4 KLJ 646 12 ILR 2014 KAR 4726 13 (2014) 2 SCC 269 14 AIR 1956 SC 593
- 25 -
6) Devasahayam (Dead) by LRs. vs P.
Savithramma and others15
7) Gurukrupa Cooperative Housing Society
Limited, supra.
18. Learned counsel Sri. C.R. Ravishankar
appearing for the defendant No.3 supported the
arguments of the plaintiff.
19. Heard the learned counsel for the respective parties and perused the original records.
20. The points that arise for our consideration are:
1) Whether the suit property is allotted or reconveyed by the BDA in favour of defendant No.1 in lieu of acquisition of site No.42 in Sy.No.157/4 of Kyathamaranahalli village, Bangalore North Taluk standing in the name of Smt. 15 (2005) 7 SCC 653
- 26 -
Rathnamma, mother of the plaintiff and defendant Nos.1 to 3?
2) Whether the Trial Court is justified in dismissing the suit filed by the plaintiff? Re point No.1
21. At the outset, it would be beneficial to ascertain what is reconveyance under the provisions of the Bangalore Development Authority Act, 1976 ('BDA Act' for short). Section 38-C of the BDA Act reads thus:-
"38-C. Power of authority to make allotment in certain cases - (1) Notwithstanding anything contained in this Act or in any other law or any development scheme sanctioned under this Act, or [City of Bangalore Improvement Act, 1945], where the authority or the erstwhile City Improvement Trust Board, Bangalore has already passed a resolution to reconvey in favour of any persons any site formed in the land which belong to them or vested in or acquired by them for the purpose of any development
- 27 -
scheme and on the ground that it is not practicable to include such site for the purpose of the development scheme, the authority may allot such site by way of sale or lease in favour of such person subject to the followings conditions.-
(a) the allottee shall be liable to pay any charges as the authority may levy from time to time; and
(b) the total extent of the site allotted under this section together with the land already held by the allottee shall not exceed the ceiling limit specified under Section 4 of the Urban Land (Ceiling and Regulation) Act, 1976."
22. Section 38-C of the BDA Act stipulates two conditions to be fulfilled for reconveynce namely (i) It must be impracticable to include the site in the scheme; a resolution to reconvey in favour of the person to whom the site is to be granted must have been passed by the Authority. (ii) it presupposes that the person to whom
- 28 -
the allotment is to be made should be an erstwhile owner whose land has been acquired and in which land the site in question has been formed. This is the view expressed by the Division Bench of this Court in L.V. Hosalappa supra.
23. It is held by this Court in Smt. Radhamma and others supra as under:-
"A reconveyance at the highest, even if it is sought to be justified in individual cases which it is extremely difficult to do, which is why this Court has repeatedly deprecated the practice, the question still arises as to whether it can be demanded as of right to which the answer is an emphatic no. A reconveyance is only an indulgence and if resorted to, would virtually mean that it is an act of restoration of the status quo ante. If such an act of reconveyance does take place, it will have to be categorised as a reconveyance and is totally distinguishable from a fresh allotment which is an allotment
- 29 -
on merits and is in no way concerned with the pre-existing rights. When a property is therefore reconveyed by the act of the Government or a public authority, it comes back to the holder and the rights of the legal heirs would therefore stand revived. This however is not to be confused with a situation in which no order of reconveyance is passed but where, on merits a fresh allotment is made which has no bearing on an act of reconveyance."
24. In the case of Gurukrupa Cooperative Housing Society Limited, supra, it is held that the word "reconvey" presupposes that the person to whom the land or site is reconveyed was the owner of the land, which was acquired by the Authority. On such acquisition, he ceased to be the owner and title passes to the Authority. If the Authority finds the land so acquired is not useful for the purpose for which it was acquired, then at the request of such owner of the land/site, Section 38C provides for reconveyance in
- 30 -
favour of the original owner by passing of a Resolution by the Board. Section 38C(1)(a) provides that by way of reconveyance the allottee shall be liable to pay any charges as the authority may levy from time to time. In the case of reconveyance, the allottee has a pre-existing right. When his land is acquired, if he has not been paid compensation for the same and when the land is reconveyed to him, to expect him to pay the prevailing allotment rate which includes cost of the land would not stand to reason because, he was not paid compensation for the land acquired. Therefore, in the case of reconveyance when the site or land is reconveyed to the original owner, all that the BDA is entitled to do is to collect the developmental charges and the charges for the amenities which are given to such land. It cannot be the prevailing rate as in the case of an allotment of site. Therefore, any charges mentioned in Section 38C(1)(a) cannot be the allotment rate of a site to an allottee for
- 31 -
the first time. It is to be necessarily less than that and the cost of land is to be excluded.
25. The relevant paragraphs of the said judgment are extracted hereunder:-
"14. In the case of an allotment of a site in the Layout formed by the BDA, the allottee has no pre-existing title before such allotment is made. It is only after an allotment is made and such allottee pays the price fixed for such allotment and after he complies with other legal requirements the site allotted to him is conveyed, thus conferring title on such an allottee. On execution of a Sale Deed by the Authority in favour of the allottee he becomes the absolute owner of the site. He has to pay the price fixed by the authorities to acquire title to the property allotted to him.
15. The same principle cannot apply to a case of reconveyance. The word "reconvey"
presupposes that the person to whom the land or site is reconveyed was the owner of the land, which was acquired by the Authority. On such acquisition, he ceased to be the owner and title
- 32 -
passes to the Authority. If the Authority finds the land so acquired is not useful for the purpose for which it was acquired, then at the request of such owner of the land/site Section 38C provides for reconveyance in favour of the original owner by passing of a Resolution by the Board. Section 38C(1)(a) provides, on such reallotment by way of reconveyance the allottee shall be liable to pay any charges as the authority may levy from time to time. In the case of a reconveyance the allottee has a pre-existing right. When his land is acquired, if he has not been paid compensation for the same and when the land is reconveyed to him, to expect him to pay the prevailing allotment rate which includes cost of the land would not stand to reason because, he was not paid compensation for the land acquired. Therefore, in the case of reconveyance when the site or land is reconveyed to the original owner, all that the BDA is entitled to is the developmental charges and the charges for the amenities which are given to such land. It cannot be the prevailing rate as in the case of an allotment of site. Therefore, any charges mentioned in Section 38C(1)(a) cannot be the allotment rate of a site to an allottee for the first time. It is to be necessarily less than that and the cost of the land is to be excluded."
- 33 -
26. From the aforesaid judgments, it is envisaged that the allottee has no pre-existing title before such allotment is made. The phrase "reconvey" presupposes that the person to whom the land or site is reconveyed was the owner of the land/site, the same being acquired by the Authority, the Authority having found not useful for the purpose for which it was acquired, then at the request of such owner of the land/site exercising the power under Section 38-C of the BDA Act can reconvey the site in favour of the original owner by passing a resolution by the Authority. The charges liable to be paid on such re-allotment by way of re-conveyance is not the prevailing allotment rate of a site to an allottee, but what the BDA is entitled to collect towards re-conveyance is developmental charges/amenities charges for re-conveyance of the site, not the prevailing allotment rate. Coming to the facts of the present case, Ex.P6 is the Resolution said to have been passed by the BDA on 09.01.1995.
- 34 -
27. The relevant portion of the Ex.P6, Resolution dated 09.01.1995 reads as under:-
¥Áæ¢üPÁgÀzÀ ¸À¨sÉAiÀÄ ¢£ÁAPÀB 9-1-1995 «µÀAiÀÄ ¸ÀASÉåB 21B95 "¥Áæ¢üPÁgÀzÀ ¸À¨sÉAiÀÄ ªÀÄÄAzÉ ªÀÄAr¸À¯ÁzÀ n¥ÀàtÂAiÀÄ£ÀÄß ¥Àj²Ã°¸À¯Á¬ÄvÀÄ ZÀZÉðAiÀÄ £ÀAvÀgÀ PÉÃvÀöªÀiÁgÀ£ÀºÀ½î UÁæªÀÄzÀ ¸ÀªÉð £ÀA.157B4gÀ°è£À ¤ªÉñÀö£À ¸ÀAB 42 (¥Áæ¢üPÁgÀzÀ ¸ÀASÉåB76öBJ £ÀÄß) ºÁ° ZÁ°ÛAiÀÄ°ègÀĪÀ ºÀAaPÉ zÀgÀzÀ ªÉÄÃ¯É ²æà ©.f.²æäªÁ¸ÀªÀÄÆwðAiÀĪÀgÀ ¥ÀgÀªÁV ªÀÄgÀĺÀAaPÉ ªÀiÁqÀ®Ä wêÀiÁð¤¸À¯Á¬ÄvÀÄ."
¸À» CzsÀåPÀëgÀÄ ¸À» PÁAiÀÄðzÀ²ð ¨ÉAC¥Áæ ¨ÉAUÀö¼ÀÆgÀÄ ¨ÉAC¥Áæ ¨ÉAUÀö¼ÀÆgÀÄ
28. The aforesaid indicates that the Authority after due deliberation has resolved to re-allot the site No.42 (Authorities No.76/A) in Sy.No.157/4, Kyathamaranahalli to Sri. B.G. Srinivasa Murthy at the current prevailing rates. This Ex.P6 dated 09.01.1995 would disclose that the Authority has resolved to re- allot the site at the current prevailing allotment rate. This is one of the test for determining whether the suit property is allotted or re-conveyed. As held by this
- 35 -
Court in the case of Gurukrupa Cooperative Housing Society Limited, supra, any charge mentioned in Section 38C(1)(a) of the BDA Act cannot be the allotment rate of a site. It is evident that the defendant No.1 has paid the prevailing allotment rate of Rs.1,64,447/- existing as on 1995 towards allotment of the suit property in his favour.
29. The sale deed executed by the BDA in favour of the defendant No.1, Ex.P3 dated 03.07.1998 categorically states that the vendor - BDA represented by the Assistant Commissioner, Reconvey and Reallotment, Bangalore Development Authority, Bangalore, has reconveyed the suit property by way of outright sale to the purchaser, the site No.76/A, which is fully described in the schedule whereas the purchaser has paid the full sital value of Rs.1,64,447/- in cash and the vendor has acknowledged the receipt of the same. The said indenture witnesses that the vendor for
- 36 -
having received the valuable consideration of Rs.1,64,447/- from the purchaser as absolute owner has put the purchaser in actual possession of schedule site and conveys to the purchaser all that part and parcel of the schedule site to have to hold to enjoy the same peacefully for ever as his personal and absolute property free from all encumbrances, lawful evictions, arrears of taxes other dues and claims whatsoever together with all liberties, privileges, easements and appurtenances whatsoever to the said property subject to the term and conditions. The said terms and conditions are that the purchaser shall not put the property to any other use except as residential building only; the purchaser shall construct the residential building in the schedule property as per plans assigned and in conformity with the provisions of the KMC Act, 1976 and bye-laws made thereunder. Nowhere in the sale deed Ex.P3, it is mentioned that the suit schedule property is reconveyed to the defendant No.1 in lieu of
- 37 -
the acquisition of site No.42 owned by the Smt. Rathnamma, the mother of plaintiff and defendant Nos.1 to 3. The scanning of the said document would indicate that, it is an absolute sale deed for an outright sale consideration of Rs.1,64,447/-. This sital value of Rs.1,64,447/- is the prevailing allotment rate of BDA during 1995 and not the developmental charges collected to reconvey the property.
30. One of the condition for reconvey is the owner of the land/site has to be in possession of the property though acquired by the BDA and the same is not useful for forming the layout, the purpose for which it was acquired. The plaintiff indeed had made efforts unsuccessfully to get the suit schedule property reconveyed in his name. The request of the plaintiff was rejected as per Ex.D5 dated 24.09.1986 and Ex.D6 dated 14.05.1987, which remains unchallenged. O.S.No.864/1985 filed by the plaintiff against the BDA
- 38 -
seeking for the relief of permanent injunction from interfering with the peaceful possession and enjoyment of the suit property claiming to be in possession of the suit property through the tenant Sri. Narayana @ Hutchappa, plaintiff No.2 therein, has been dismissed holding that the plaintiffs had failed to place any reliable material before the Court to show that the father of the plaintiff No.1 had constructed a house on the suit property in 1964 and the plaintiffs therein are in possession of the same. The Trial Court has categorically held that the plaintiffs have not been able to dislodge the presumption regarding the official acts in the case viz., the acquisition of land in Sy.No.157/4 by the defendant - BDA and the possession taken over by the BDA on 30.04.1969. In other words, the plaintiffs have failed to prove their lawful possession over the suit schedule property in the manner alleged by them in the plaint. Accordingly, the suit filed by the plaintiffs was dismissed with costs. The said decision has reached
- 39 -
finality as admitted by the plaintiff. The said judgment is at Ex.D4.
31. The case of the plaintiff is mainly based on Ex.P2 dated 18.06.1979, a registered relinquishment deed wherein the defendant Nos.1 to 3 have released their rights relating to the joint family Pitrarjitha property for having received Rs.5,000/-, Rs.5,000/- and Rs.3,000/- respectively by the plaintiff. The said Ex.P2 does not refer to the site of the mother of the plaintiff and defendant Nos.1 to 3 acquired by the BDA. It refers to the joint family Pitrarjitha movable and immovable property. It is significant to note that before executing this relinquishment deed dated 18.06.1979, the joint affidavit and indemnity bond (Exs.D20 and D21) were executed on 16.06.1979 jointly by the plaintiff and defendant Nos.1 to 3, wherein it has been stated that they are the children of late Sri. B. Gundu Rao and late Smt.B.G. Rathnamma who died on 27.05.1977 and 03.10.1962 respectively; they had not left any will. The
- 40 -
deceased Smt. (late) B.G. Rathnamma, their mother had purchased a revenue site No.42 in Sy.No.157/4 of Kyathamaranahalli, West of Chord Road, II Stage, Bangalore, it has been requested by them before the BDA to regularize and reconvey the said site in favour of their brother Dr. B.G. Srinivasa Murthy. They have stated that they have no objection for reconveyance and regularization to be made in favour of Dr. B.G. Srinivasa Murthy (defendant No.1 herein) their brother.
32. The execution of these documents Exs.D20 and D21 is clearly admitted by the plaintiff in his evidence. The relevant portion is extracted hereunder:-
"It is true that the joint affidavit and indemnity bond are executed by me and defendant Nos.1 to 3 on 16.06.1979. The contents of the joint affidavits and indemnity bonds are true and correct. I have questioned the contents of joint affidavits and indemnity bond. I might have issued a letter to the BDA by challenging the contents of that joint
- 41 -
affidavit and indemnity bonds. I am not having my evidence in that regard."
33. In view of the candid admission made by the plaintiff regarding the execution of Exs.D20 and D21 by him along with defendant Nos.1 to 3 before the BDA as on 16.06.1979 and there being no mention about the same in the relinquishment deed dated 18.06.1979, it cannot be held that the said suit property was also included in the relinquishment deed, Ex.P2. In view of the acquisition of the site No.42 by the BDA in the year 1967, the said property was not at all in existence for the defendants to release their rights regarding the same in favour of the plaintiff. Though reconveyance is a pre-existing right, unless the said property is reconveyed or reallotted to the owner of the acquired land/site, no rights would exist on the erstwhile owner of the such acquired property. To discard the evidence of the defendant No.1 with respect to Exs.D20 and D21, the plaintiff has placed much emphasis on Ex.P31. This
- 42 -
Ex.P31 does not bear the date and it is written on a plain white paper. It is a letter said to have been written in continuation of the release deed by defendant Nos.1 to 3 in favour of the plaintiff. The contents of the Ex.P31 would reveal that the defendant Nos.1 to 3 have executed a release deed in favour of their brother B.G. Ramaswamy - plaintiff on 18.06.1979 and relinquished all their rights in favour of their brother B.G. Ramaswamy, thus they have no rights over any of the properties of either of their father or of their mother late Smt. Rathnamma. The indemnity bond and joint affidavit both dated 16.06.1979 executed by the plaintiff as well the defendant Nos.1 to 3 with respect to revenue site No.42 in Sy.No.157/4 of Kyathamaranahalli, West of Chord Road, II Stage, Bangalore, agreeing to reconvey and reallot the said site in favour of the defendant No.1 is treated as cancelled in view of the release deed executed by them in favour of their brother B.G. Ramaswamy. The said indemnity bond and joint
- 43 -
affidavit have no value. It is the case of the plaintiff that the Exs.D20 and D21 are cancelled by the defendant Nos.1 to 3 as well as the plaintiff. The defendant No.1 has admitted his signature on Ex.P31. However, the defence set out by the defendant No.1 is that his signature was taken on a blank paper and the same is misused by the plaintiff. It is a forged and concocted document which has not seen the light of the day for about 20 years. There was no necessity to execute Ex.P31 after executing Ex.P2 on the very same day. It is evident that Ex.P31 is neither produced before the BDA nor in the proceedings of O.S.No.864/1985, the suit instituted by the plaintiff against the BDA. This Ex.P31 being an unregistered document the execution of which has been emphatically denied by defendant No.1, certainly shrouds a suspicion in the mind of the Court. In terms of the Ex.P2 what was released by the defendant Nos.1 to 3 in favour of the plaintiff is their rights relating to the movable and immovable Pitrarjitha
- 44 -
property. If the said document is registered, again executing an unregistered document on the very same day canceling the Exs.D20 and D21 would not inspire confidence. The plaintiff would have asserted the same at the first instance while seeking injunction against the BDA in O.S.No.864/1985 instituted by the plaintiff. For what reasons this document, Ex.P31 was not made known to the BDA remains as a question mark. If really the said Exs.D20 and D21 were cancelled, the plaintiff and the defendant Nos.2 and 3 would have brought to the notice of defendant No.4 - BDA regarding the same. There being no such intimation given to the BDA, it is hard to believe Ex.P31. It is the contention of the plaintiff that immediately after execution of the registered document Ex.P2, Ex.P31 was executed. No doubt, defendant Nos.2 and 3 have admitted the execution of the Ex.P31, still the same cannot be believed to have been executed by the defendant No.1 and the same cannot be construed to be a genuine
- 45 -
document having regard to the attendant circumstances. The plaintiff admits that defendant No.2 typed the letter and claims that there was a hurdle to mention the terms of Ex.P31 in Ex.P2 without expounding the same. The defendant No.2 admits that he used to operate the typewriter with a single finger. It was admitted that Ex.P31 was typed at 5 p.m. on 18.06.1979 whereas defendant No.3 claims that it was executed by 1 p.m. If the Ex.P2 was registered, certainly Ex.P31 ought to have been registered under Section 17 of the Registration Act, 1908. It is true that on the objections raised by the learned counsel appearing for the defendant No.1 to mark Ex.P31, W.P.No.26805/2010 was filed before this Court which came to be allowed with the observations that the property referred to in Ex.P31 has already been acquired by C.I.T.B and the question of any relinquishment of rights by the executants does not arise. Marking of the said exhibit would not be the
- 46 -
conclusive proof unless the same is proved in accordance with law. Evaluating the evidence in this regard, the Trial Court has rightly drawn adverse inference against the plaintiff under Section 114 of the Evidence Act.
34. The evidence of the plaintiff in respect of Ex.P31 is as under:-
"It is true that, date is not appearing anywhere on Ex.P-31. According to me Ex.P- 31 is a letter. That document was typed and signed by all the parties in my presence. It was executed on the same day after the execution of release deed marked as Ex.P-2. At the time of execution of Ex.P-31 four persons were present. That document was typed in our house. My brother Sathyanarayana (defendant No.2) has typed that document. I have not produced any evidence before the Court to show that, a typewriter was existing in our house. There was hurdle to mention about the conditions of
- 47 -
Ex.P-31 in Ex.P-2. According to my knowledge, at the time of execution of Ex.P31 Kannada typewriter was not available. The scribe of Ex.P2 was a famous deed writer, so we accepted the deed written by him in any language. My father died in the year 1977. It is false to say that, after the death of my father I have obtained the signature of defendant No.1 Srinivasamurthy on a blank paper stating that his signature is required for transfer of khatha and dealings of bank accounts of my father. The contents of Ex.P- 31 are personally drafted and typed by my brother Sathyanarayana. I do not know as to why in that document the word 'WHEREAS' is used.
It is true that, I had applied to BDA for reconveyance of my mother's site. It is true that, as that time copy of Ex.P-2 was produced before B.D.A. It is true that, Ex.P-31 was not produced before the BDA. It is true that, there is no reference in the application submitted before the BDA referring Ex.P-31. It is true that, for the first time I am referring
- 48 -
Ex.P-31 in this suit. It is true that, now the documents shown to me are the certified copy of the order sheet, plaint, written statement and judgment of O.S.No.864/1985 filed by me against the BDA with respect to my other side. Out of the same order sheet is marked as Ex.D-1 CC of plaint is marked as Ex.D-2, CC of written statement is marked as Ex.D-3 and CC of judgment is marked as Ex.D-4. It is true that, in that suit I relied upon the documents marked at Ex.P-2 release deed and there is no reference of Ex.P-31 in my pleadings in O.S.No.864/1985. Ex.P31 is secured as my brother Srinivasamurthy hold me that we will destroy joint affidavit and indemnity bond in the time of execution of Ex.P-31 said joint affidavit are in Mysore."
35. It was argued by the learned Senior counsel that the Trial Court grossly erred in holding that the plaintiff has not produced any document to show that mother of the plaintiff and defendant Nos.1 to 3 has sought for reconveyance contending that Smt. Rathnamma died in the year 1962 whereas the site was
- 49 -
acquired by the BDA in the year 1967, therefore, husband of Rathnamma (Sri. B. Gundu Rao) had filed application for reconveyance. In this context, it is beneficial to refer to the averments made in the plaint by the plaintiff in this regard. In paragraph No.4 of the plaint it is pleaded that Smt. Rathnamma, mother of the plaintiff also moved the C.I.T.B. for securing the reconveyance of a revenue site which was lost during her lifetime, on her death, the father of the plaintiff did so without success.
36. Even in the evidence of the plaintiff, it is deposed that his mother has submitted the original documents and the photos before BDA for reconvey of her site No.42, however those documents are not produced before the Court as the same are destroyed and he has not produced the endorsement issued by the BDA in that regard. He had filed an application for obtaining the said documents however, the copy of the
- 50 -
application is not produced before the Court. He admits that there is no hurdle on him to produce the copy of the application. He has reiterated that his mother has submitted her application for reconveyance but there is no evidence with him in that regard. The testimony of the plaintiff is that he is claiming his share in the suit schedule property as it is his parents' property, but not on the basis of reconveyance. However, it is admitted that there is no evidence to show the suit property is his parents' property and the same is reconveyed to defendant No.1 as per Section 38C of the Act. In view of the specific pleadings and evidence adduced by the plaintiff inasmuch as the application said to have been filed by Smt. Rathnamma for reconveyance, the Trial Court holding that no such documents were produced by the plaintiff cannot be faulted with.
37. The next argument of the learned Senior counsel that the Trial Court erred in holding that Ex.P2,
- 51 -
the relinquishment deed does not mention the schedule or boundaries, indeed it included the schedule property since the said deed does not refer to any particular property but all properties would also deserves to be negated as the suit property was not at all in existence at the time of executing the relinquishment deed by the defendant Nos.1 to 3 in favour of the plaintiff.
38. It is well established that in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for grant of such a declaration and weakness, if any in the defence set up by the defendant would not be ground to grant relief to the plaintiff. The legal position is that the plaintiff in a suit for declaration of title and possession would succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not
- 52 -
even if the title is set up by defendant is found against them, in the absence of the establishment of the plaintiff's own title, the plaintiff must be not suited.
39. Letter of defendant No.1 dated 29.09.2004 at Ex.P29 seeking for the correction in the possession certificate would not assist the plaintiff to establish his title over the suit property. Banking upon the weakness of defendant No.1, declaration of title cannot be claimed. The BDA in its written statement has categorically stated that the suit property has been allotted to the defendant No.1 for outright sale consideration. Pleadings form the basis and the said statement of the BDA cannot be ignored. It is trite law that the object and purpose of pleading is to enable the adversary party to know the case it has to meet. It is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded during the trial. In a suit for declaration of title,
- 53 -
recovery of possession and mesne profits, plaintiff has to establish his title by producing documentary evidence. There is no scope for production of oral evidence without any documentary evidence. There is no scope for personal knowledge what is to be produced is the primary evidence that is the document itself (vide Janatha Dal Party, Bangalore, supra). The plaintiff proves ignorance of the compensation paid in lieu of acquisition by the BDA relating to his mother's site acquired by the BDA.
40. The measurement and boundaries to the suit property is different from the property owned by Smt. Rathnamma and acquired by the erstwhile C.I.T.B in the year 1967. The said site was measuring 1680 Sq.Ft. whereas the site allotted to the defendant No.1 measures 2724 Sq.Ft. The explanation offered by the plaintiff regarding this issue referring to Ex.P15 survey report would not be clinching evidence to establish the
- 54 -
reconveyance of the site acquired by the BDA. Ultimately what is relevant is the sale deed Ex.P.3. There being no whisper about the acquisition of site of Smt. Rathnamma and the allotment of the suit schedule property in lieu of the same, it cannot be said that the suit property is reconveyed to the defendant No.1. The plaintiff in his cross-examination states that Site No.76 was auctioned in a public auction and 76/A was allotted to defendant No.1. As per Ex.P22, it is contended that Sy.No.157/4 was not included in the reconveyance scheme and Site No.76/A may be allotted to defendant No.1.
41. It is well settled by law that the reliefs should be claimed on the basis of the pleadings. No party should be permitted to travel beyond its pleadings. There is no consistency in the stance of the plaintiff inasmuch as the relief claimed. Having claimed the rights over the suit schedule property as an
- 55 -
absolute owner based on the relinquishment deed (Ex.P2) said to have been executed by defendant Nos.1 to 3 in his favour, the alternative prayer sought for partition considering the same as the joint family property would be nothing but changing the views. The plaintiff can not approbate and reprobate having elected to treat the suit schedule property as an absolute owner, he cannot treat the same as the joint family property available for partition. The main prayer runs contrary to the alternative prayer. The plaintiff having set up the case in O.S.No.864/1985 as the owner in possession of the suit property unsuccessfully now is estopped from taking the stand that the said property could be construed as the joint family available for partition.
42. The plaintiff has preferred a suit seeking declaration to direct defendant No.1 to execute sale deed with respect to the suit schedule property without
- 56 -
seeking the essential prayer of declaration that sale deed at Ex.P3 is not binding upon the plaintiff. The prayer of the plaintiff is contrary to Section 34 of the Specific Relief Act, 1963 which clearly mandates that no court shall make any declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. The Apex Court in Vinay Krishna, supra has held:-
"10. The learned counsel for the respondent would urge that the specific case of the plaintiff was that she was in exclusive possession. In defense, it was averred in no uncertain terms that Section 42 of the Specific Relief Act will be a bar. The courts below have found concurrently that concerning this House No.52, Civil Lines, Bareilly she was not in exclusive possession. Therefore, now for the plaintiff to raise the plea of permissive possession is impossible. That was not the case put at any point of time. On the contrary the declaration was sought with reference to the entire property. In these circumstances, the
- 57 -
proviso to Section 42 will take away the discretion of the Court with regard to the grant of declaratory decree.
12. Supreme General Films Exchange v. Brijnath Singhji Deo [(1975) 2 SCC 530] has no application at all. This is a case in which the declaration is sought with reference to title. Such a case is governed only by Section 42 of the Specific Relief Act. That being the case it is not possible for the appellant to claim a declaration with reference to only that portion of which she was in possession.
13. We have carefully considered the above arguments. We are clearly of the view that bar under Section 42 of the Specific Relief Act would undoubtedly operate in this case. (We may add that present Section 34 is in pari materia.) Section 42 of the Specific Relief Act, 1877 reads as under:
"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief.
- 58 -
Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so."
14. From the reading of the plaint it is clear that the specific case of the plaintiff Jamuna Kunwar was that she was in exclusive possession of property bearing No.52 as well. She thought that it was not necessary to seek the additional relief of possession. However, in view of the written statement of both the first and the second defendant raising the plea of bar under Section 42, the plaintiff ought to have amended and prayed for the relief of possession also. Inasmuch as the plaintiff did not choose to do so she took a risk. It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration.
- 59 -
43. The Apex Court in Devasahayam, supra has held as under:-
"29. It is true as has been submitted by Mr. Gupta that a party to a lis cannot raise pleas which are mutually destructive but ordinarily inconsistent defenses can be raised. Respondents 2 to 5 were plaintiffs in respect of their counterclaim and, thus, it was for them to prove their case by pleading such foundational facts as were required to obtain a decree in their favour. The respondents, as noticed hereinbefore, in their written statement categorically stated that the plaintiff had been in possession of the land as a tenant and his possession is that of tenant event to this day and, thus, according to the defendant the appellant continued to be a tenant. As in the counterclaim such a plea had been taken, the respondents on their own showing raised inconsistent pleas which are said to be mutually destructive."
- 60 -
The judgments referred to by the learned senior counsel for the appellants would be of no assistance to the appellants.
44. It is evident that the plaintiff has not demanded for partition either orally or by issuing a notice. The Trial Court has evaluated the entire evidence on record and has rightly come to the conclusion that the plaintiff has failed to substantiate his case regarding re-conveyance of the site by the BDA and has drawn adverse inference against the plaintiff in respect of Ex.P31. The Trial Court has also noticed that the original plaintiff took the property belonging to the father which was situated at No.3318, Mariyappanapalya Near Navrang theatre, Rajajinagar, Bengaluru, the printing press business, shares in various companies and gold jewelry.
45. The defendant No.1 has paid the sale consideration of Rs.1,64,447/- in full to the BDA in
- 61 -
order to get the sale deed registered in his favour regarding the suit property. The said amount is not paid either from the corpus of the joint family property or on behalf of the joint family property as there was severance of joint family as per Ex.P2. The subsequent litigation faced by the defendant No.1 regarding the challenge made for allotting the suit site in favour or defendant No.1, mortgage deed executed by the defendant No.1 and the loan raised from the banks also would satisfy that the defendant No.1 has acted on the sale deed Ex.P3 executed by the BDA as an absolute owner of the suit property.
46. On re-appreciation of evidence, we do not find any perversity or irregularity in the judgment and decree of the Trial Court. We confirm the same.
For the aforesaid reasons, the appeal stands dismissed.
- 62 -
All pending I.A.s. stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE PMR