Karnataka High Court
Sri. Muralidhar .R, vs Smt. Leela Prabhakar Rao, on 14 May, 2015
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MAY 2015
BEFORE:
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.1324 OF 2009
CONNECTED WITH
REGULAR FIRST APPEAL No.1160 OF 2009
IN R.F.A.No.1324/2009
BETWEEN:
Sri. Muralidhar .R,
Son of A.R.Upadyaya,
Aged about 70 years,
No:434 and 435, II Main,
2nd Cross, Vidyapeetha Layout,
Bangalore - 560 028.
... APPELLANT
(By Shri. G. Balakrishna Shastry, Advocate)
AND:
1. Smt. Leela Prabhakar Rao,
Wife of Sri. Prabhakar Rao,
Aged about 55 years,
No:53, 1st Main Road,
Thyagarajanagar,
2
Near Sri Ramamandir,
N.R.Colony,
Bangalore - 560 019.
2. Smt. K. Sridevi,
Wife of Sri. B.P.Maruthi,
Aged about 50 years,
No:2425, Attiguppe Main Road,
Vijayanagar,
Bangalore - 560 040.
...RESPONDENTS
(By Shri G. Vedavyasachar, Advocate for Caveator/Respondent
No.2;
Shri Nandakishore .J, Advocate for Respondent No.1 )
*****
This Regular First Appeal filed under Section 96 of the Code
of Civil Procedure, 1908, against the judgment and decree dated
19.9.2009 passed in O.S.No.4514/1995 on the file of the XIV
Additional City Civil and Sessions Judge, Bangalore (CCH-28),
dismissing the suit for declaration and possession.
IN R.F.A.No.1160/2009
BETWEEN:
Sri. R. Muralidhara,
Son of Late A.R.Upadhya,
Aged about 70 years,
No:434 and 435, 2nd Main Road,
2nd Cross, Vidhyapeeta Layout,
Bangalore - 560 028.
...APPELLANT
(By Shri G. Balakrishna Shastry, Advocate)
3
AND:
1. Smt. Leela Prabhakar,
Wife of Sri. Prabhakar Rao,
Aged about 55 years,
No:53, 1st Main Road,
Near Rama Mandira,
N.R.Colony, Bangalore.
Pin Code: 560 019.
2. Sri. B.P.Maruthi,
Aged about 58 years,
Son of K.H.Puttaramaiah,
Car Dealer, Petrol Bunk,
Near Hudson Circle,
Bangalore - 560 002
And also available at
No:2925, Attiguppa Main Road,
Vijayanagar,
Bangalore - 560 040.
3. Bangalore Development Authority,
Sankey Road,
Bangalore,
Represented by its Commissioner.
4. Smt. Shridevi,
Aged about 50 years,
Wife of Sri. B.P.Maruthi,
Car Dealer, Petrol Bunk,
Near Hudson Circle,
Bangalore - 560 002 and
Also available at No.:2925,
Attiguppa Main Road,
Vijayanagar,
Bangalore - 560 040. ...RESPONDENTS
4
(By Shri G. Vedavyasachar, Advocate for Respondent No.2 and
Caveator/Respondent No.4;
Shri Nandakishore .J, Advocate for Respondent No.1;
Shri K. Krishna, Advocate for Respondent No.3)
*****
This Regular First Appeal filed under Section 96 of the Code
of Civil Procedure, 1908, against the judgment and decree dated
19.9.2009 passed in O.S.No.15828/2006 on the file of the XXVIII
Additional City Civil and Sessions Judge, Mayohall Unit, Bangalore
City, dismissing the suit for permanent injunction.
These Regular First Appeals having been heard and reserved
on 7.4.2015 and coming on for pronouncement of Judgment this
day, the Court delivered the following:-
JUDGMENT
These appeals are heard and disposed of by this common judgment, having regard to the facts and circumstances. The parties are referred to by their rank before the trial court, for the sake of convenience.
2. The plaintiff is common in both the appeals. In appeal no. RFA.1324/2009, arising out of the judgment and decree in O.S.No.4514/1995, passed by the Court of the City Civil Judge, Bangalore, it was the plaintiff's case that his father had purchased 5 three house sites culled out of land bearing survey no.15/1 of Kathriguppe village, Bangalore South Taluk, from one Lakshmidevamma, under a sale deed dated 12.6.1960, each site measuring 30 feet by 50 feet, the same was more fully described in the schedule to the suit as item no.1. The father of the plaintiff is said to have died in the year 1974. The plaintiff is said to have thus inherited the property.
It was alleged that in the year 1992, when the plaintiff was about to put up construction on the suit property, the first defendant along with one Chayapathi Rao, is said to have encroached on the property to an extent of 30'X50 ' on one end of the property and by 10'X 50' on another end of the suit property and are said to have commenced construction. And inspite of his protests and complaint to the jurisdictional police, the first defendant and Chayapathi Rao, are said to have completed the illegal construction over the suit property. The encroached portions of the property are said to be defined as Item no.2 of the suit schedule.
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The plaintiff is then said to have put up construction after obtaining sanction of plan and licence from the competent authority over the remaining extent of the suit property, of a residential house. However, during such construction by the plaintiff, it transpires that the husband of the first defendant and the officials of the Bangalore Development Authority (BDA), are said to have obstructed the plaintiff and the BDA is also said to have issued a notice calling upon the plaintiff to demolish and remove the construction being put up. The plaintiff is then said to have approached this court, in its writ jurisdiction, by way of a writ petition in W.P.No.32227/1992 and had obtained an order of stay as against the said notice issued by the BDA.
It further transpires that the first defendant had purportedly sold the encroached portion of the property in favour of the second defendant even during the pendency of the suit. The sale, it was alleged, was a nullity as the first defendant had no title to the extent of property.
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The plaintiff had claimed that the title to the suit schedule at item (a) could be traced thus. The said area formed part of land in survey no.15/1 of Kathriguppe village and belonged to one Kapinaya, who had sold the same to Laxmidevamma, who in turn had sold it to the plaintiff's father, Ramachandra Upadhya, from whom the plaintiff had inherited the property.
It was claimed that one Leela Prabhakar Rao, the first defendant, had attempted to encroach on a portion of the property, which had constrained the plaintiff to file the suit restraining her from doing so. It was said to have been disclosed by the defendant therein, that there was a reconveyance in her favour by the BDA, after the land was acquired for the formation of a residential layout by the said Authority, of a site bearing no.19, which was claimed by her as being the portion of the suit property which was in dispute therein. The said Leela Rao, in turn claimed to have sold the same in favour of one Shridevi.
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Further, one Smt. Vishal Raj is said to have made a similar claim of having been reconveyed a site bearing no. 18, by the BDA , which again was claimed as part of the plaintiff's property.
It was the plaintiff's case that the land in survey no.15/1 originally comprised an area measuring over 20 acres. The land that was acquired by the erstwhile CITB, the predecessor in interest of the BDA, was only an extent of 2 acres and 20 guntas in the land bearing survey no. 15/1. Secondly, the boundary of the extent so acquired indicated the northern boundary as the remaining extent of survey no.15/1. Further the khatedar and anubavadar of the land, in the acquisition notifications were shown as one Venkat Reddy - S/o Muniyappa, D.S. Subba Rao- s/o Amboj Rao. The revenue records in turn showed the name of Kapinaya, A. Ramachandra Upadhaya as holding an extent of land measuring 50 X 90 feet.
It was in this background that the plaintiff's son is said to have made enquiries with the BDA to furnish particulars of the 9 acquisition. It was alleged that the BDA had only disclosed vague particulars and even this disclosed that the suit property was apparently outside the acquired land.
It is in this background that the above suit was filed for the relief of declaration that the defendants had no title to the suit property and for recovery of possession of the encroached portion as alleged.
The first defendant had entered appearance and filed her written statement, denying the plaint averments and contended that she had purchased a site bearing no.19, measuring 30 X 50 feet, under a sale deed dated 27.1.1975, from one R. Subramanya. The entire extent of land bearing survey no. 15/1 of Kathriguppe village is said to have been acquired by the Bangalore Development Authority for the formation of the Banashankari III Stage layout, including the site purchased by her. However, it transpires that under an agreement of reconveyance, she was said to have been allotted a site in the Banashankari III Stage layout formed by the 10 BDA, vide Resolution dated 1.11.1999. The site allotted was site no. 433, measuring 30 feet X 39 feet + 46 /2 feet. She was said to have been put in possession of the site under a lease cum sale agreement, initially and thereafter a sale deed is said to have been executed pursuant to the agreement, vide sale deed dated 23.8.1996. Thereafter, the first defendant is said to have constructed a residential house and that she was residing therein.
Incidentally it was asserted that the plaintiff's claim of any portion of land being available after it was acquired in entirety by the BDA, is itself a glaring indication of the plaintiff's false and illegal claim.
The second defendant in turn having entered appearance filed her written statement and also denied the plaint averments while highlighting that the claim of the plaintiff was nebulous and totally inconsistent. It was pointed out that the plaintiff had sought for reconveyance of the land claimed by him, from the BDA. On the failure in his attempt in this regard, he is said to have approached 11 this court by way of a writ petition, in the year 1992. And even during the pendency of the writ petition, which was ultimately said to have been dismissed, the plaintiff is said to have filed the present suit and therefore was estopped from seeking any relief. It was also asserted by way of an additional written statement that the relief of declaration as to the validity of her title deed of the year 1996 and the amendment having been permitted, allowing such a prayer was conditional, in that, it was subject to the same being within the period of limitation, which question was left open to be determined in the suit. It was therefore pointed out that the plaintiff was fully aware of the acquisition of the property by the BDA and subsequent reconveyance, as early as in the year 1992, when the plaintiff had filed a writ petition in W.P.32227/1992. And the sale deed having been executed by the BDA in the year 1996, the validity of which was sought to be questioned by amendment to the plaint effected in the year 2007, was hopelessly barred by time and ought to be dismissed.
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On the above pleadings, the trial court had framed the following issues :
"ISSUES
1. Whether the plaintiff proves his title to the 1st item of the plaint schedule property on the date of filing the suit?
2. If the above issue is answered in the affirmative, whether the plaintiff proves the encroachment of item No.2 of the plaint schedule by the defendant?
3. Is the plaintiff entitled to the reliefs of demolition of existing structure in the 2nd item of the plaint schedule and possession of it?
4. What order or decree?
Additional issues framed on 18/3/2008:
1. Whether the defendant No.2 proves that Bangalore Development Authority acquires suit schedule Item No.1 property?
2. Whether the defendant No.2 proves allotment of suit schedule item No.2 property to her?13
3. Whether the market value determined by the plaintiff is correct and the Court Fee paid is sufficient?
Additional issue framed on 19/8/2008:
4. Whether the plaintiff proves that the sale deed executed by the 1st defendant on 11.6.2004 in favour of the 2nd defendant in respect of suit schedule item No.2 property is null and void and it is not binding on the plaintiff?
Additional Issues 1 and 2 have been recasted on 19/9/2009 as under:
1. Whether the defendant No.1 proves that Bangalore Development Authority acquires suit schedule Item No.1 property?
2. Whether the defendant No.1 proves allotment of suit schedule item No.2 property to her?"
The trial court had answered Issues nos.1, 2 and 3 in the negative, Issue No.4 as per the final order, Additional Issue Nos.1 and 2 in the affirmative, Additional Issue No.3 as, already closed as per order dated 23.06.2008 as the Court fee is paid and Additional 14 Issue No.4 in the negative, and dismissed the suit. It is that which is under challenge in the present appeal in RFA 1324/2009.
3. The connected appeal in RFA 1160/2009 is preferred against the judgment and decree in the suit in O.S.No.15828/2006, passed by the Court of the City Civil Judge, Bangalore. This suit was filed even during the pendency of the suit in O.S.No.4514/1995, aforesaid. The very plaintiff while claiming title to the same property that was involved therein, alleged wrongful interference by the defendants who were said to have commenced to drill a borewell and started to lay the foundation for a compound wall. The plaintiff claimed to have paid betterment charges in respect of the property to the Bangalore Mahanagara Palike as on 28.8.1999 and is said to have constructed a small house on sites bearing nos.434 & 435. It was claimed that site no.433 was kept vacant for further development. The receipt issued by the BMP is said to have reference to site numbers 143, 144 & 145 (original numbers 433, 434 & 435). It was also claimed that later a single number had been 15 assigned, as No.6 for the area comprising the above said three sites, totally measuring 90 X 50 feet.
It was alleged that the first defendant had let out a portion of site no.433 to defendant no.2, a car dealer who had commenced to dig the borewell and erect the compound wall as already stated.
It was denied by the plaintiff that the first defendant had been reconveyed a site bearing no.19, by the BDA, which was claimed as a portion of the plaintiff's property. It was denied that the BDA had acquired that portion of the property at all. Reliance was placed on documents emanating from the BDA itself, to assert that the sites bearing nos.433, 434 and 435 were seen to be outside the land bearing Sy.no.15/1 of Kathriguppe village thereby affirming that there was no acquisition at all of the said land. Hence the plaintiff sought the relief of permanent injunction restraining the defendants from interfering with the suit property described as site no.433. During the course of the suit when it was disclosed by defendant no.1 that she had sold the property to one Shridevi, the said 16 purchaser was impleaded as defendant no.4 and the BDA was impleaded as defendant no.3.
The first defendant had filed written statement and reiterated her defence consistent with the written statement filed in the earlier suit in O.S.4514/1995. The second defendant had also filed his written statement disputing the very title of the plaintiff. The genuineness and the relevance of documents relied upon by the plaintiff were questioned. In that, the encumberance certificate or the index of lands on which the plaintiff placed reliance were pointed out to be irrelevant in either fixing the identity of the property nor as being evidence of title to the property. On the other hand, it is pointed out that the suit in O.S.4514/1995 was one for declaration of title and possession, thereby the suit for injunctory relief as if the plaintiff was in possession was not maintainable.
The third defendant, the BDA, had filed written statement to point out that the site no.433 claimed by the plaintiff was formed and numbered by it after acquiring the land. It was therefore a contradiction in terms to claim that the land in question was not 17 acquired by the BDA. The inconsistent stand of the plaintiff in having filed the petition in W.P.32227/1992 and thereafter having remained dormant after its dismissal and now seeking to claim that the land was never acquired, is fatal to the suit and that the same ought to be dismissed summarily.
The fourth defendant has joined the second defendant in filing an additional written statement to emphasize that the suit was barred in law. It was also pointed out that admittedly the plaintiff had sought for reconveyance of the extent of land claimed by him in sy.no.15/1 and was hence precluded from also contending that the said land had not been acquired by the BDA. And further the area claimed by the plaintiff was without reference to any acceptable document of title to indicate that it fell outside the area acquired by the BDA.
On these pleadings, the court below had framed issues, all of which were held against the plaintiff and the suit was dismissed. It is that which is under challenge in this appeal.
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4. Having regard to the facts and circumstances that are briefly narrated above, it is evident that the fate of the appeal in RFA 1160/2009 would depend on the result of the appeal in RFA 1324/2009, as that is an appeal in a suit filed for comprehensive reliefs of declaration and possession of the entire extent of property claimed by the plaintiff , whereas the subsequent suit from which the appeal in RFA.1160/2009 arises is for the relief of injunction, in respect of a portion of the said property. Hence if the judgment in the former is sustained, the latter would , ipso facto , fail.
5. Heard Shri Balakrishna Shastry, the learned counsel appearing for the appellant. He would at the outset concede that, though the suit property is sought to be described as Site nos. 433, 434 and 435, - it is admitted that the said numbers are assigned by the BDA in respect of a layout formed by it after acquisition of land. However, it is sought to be clarified that the plaintiff has adopted the said site numbers only for the sake of convenience, for ease of identification, while insisting that the claim is laid by the defendants on the land of the plaintiff which was never acquired and it is only 19 sought to be projected by the defendants that the same had been acquired.
It is sought to be emphasized that more than one document, emanating from the BDA itself, indicates that the portion of land acquired in land bearing sy. no.15/1 had for its northern boundary, the remaining land in sy.no.15/ 1 and therefore it was evident that the entire extent of land in sy.no.15/1 was not acquired. If this position is accepted, it would follow that the suit property exists in that portion of sy.no.15/1 which remained after acquisition by the BDA (read CITB).
Shri Shastry has sought to develop his argument as to the identity and location of the suit property with particular reference to the record thus. That the land bearing sy.no.15/1 measured in all , 3 acres and 2 guntas of which one Nagamma was the owner. She had sold an extent of 1 acre and 9 guntas of the same in favour of one Kapinayya, under a sale deed dated 6.11.1959. This document is sought to be produced in this appeal as an additional document. (No orders are passed on the application seeking leave of this court to 20 produce this and other such documents.) The southern boundary shown in respect of the property was held by Muniswammappa, the father of one Narayanappa.
One Laxmidevamma is said to have purchased a total area measuring 90 X50 feet under three sale deeds, each in respect of an extent of 30X 50 feet , under Exhibits P-1, P-2 & P-28.
Laxmidevamma is said to have sold the entire extent of land measuring 90 X 50 feet under the sale deed Exhibit P-3, dated 12.6.1960 in favour of the father of the plaintiff, namely, A.R. Upadhya.
It is sought to be pointed out that the western boundary of the property sold by Kapinaya to Lakshmidevamma is shown as belonging to one Ramaswamy maistry. The western boundary as shown in the sale deed in favour of the plaintiff's father is consistently shown as Ramaswamy Maistry's land.
It is then highlighted that the Gazette notification dated 9.5.1968, issued under Section 16 of the CITB Act, Exhibit D-21, shows the northern boundary of land bearing sy.no.15/1 sought to 21 be acquired, as Sy.no.15/1. This is reiterated in the notification under Section 18 (1) of the said Act, dated 25.11.1971, Exhibit D-22, as well. The name of the khatedar was shown as Narayanappa, son of Muniswamappa. The Award dated 25.4.1975, Exhibit - D-5, also indicated the Khatedar as Narayanappa son of Muniswamappa. The area acquired was shown as 2 acres 20 guntas.
The land purchased by the plaintiff's father had for its southern boundary remaining land in sy.no.15/1 belonging to Muniswamappa the father of Narayanappa. It is that land which is acquired as per the above notifications.
An endorsement furnished by the BDA, at the instance of the son of the plaintiff, one Thrilok, as per Exhibit P-24, was to the effect that site nos.433, 434 & 435 were not formed in land bearing sy.no.15/1. It was also evident that only sites bearing no. 301 to 431 were allotted in the said land.
It is pointed out that as per Exhibit D-17 ( in OS 1160/2009), issued by the Assistant Executive Engineer, BDA to the second defendant in that suit - Site nos.432 to 435 were formed in Sy.no. 22 15/2. And even as per Exhibit P-16A (O.S.1160/2009) a plan accompanying Exhibit P- 15 showed site nos. 433 to 435 were not formed in Sy. no. 15/1. It was only the area marked in red therein which was subject matter of acquisition and that did not apparently include the suit property.
It is also pointed out that the index of lands, Exhibit P-37 correctly reflects the above transactions. The extent of land shown in land bearing sy. no.15 /1 is as follows:
Nagamma : 2 acres 9 guntas Venkatareddy & Subbarao : 1 acre 16 guntas Kapinayya : 1 acre 4 guntas A.R Upadya : 90 X 50 feet.
Shri Shastry would thus contend that the record could not have been ignored in the trial court having proceeded to dismiss the suit mainly on the contradictory and ill informed statements extracted from the plaintiff during his cross examination, which could be attributed to the plaintiff being overwhelmed by the court 23 proceedings and aggressive cross-examination. And hence seeks that the judgments of the trial court be set aside and the suits be decreed.
6. Shri Vedavyasa Achar, the learned counsel appearing for the second respondent, in the appeal in RFA 1324/2009 has filed a detailed Synopsis and has produced several authorities, to justify and sustain the judgment of the trial court. He would contend that the principal question to be decided in the appeal is whether the land in question was land that was acquired by the CITB, the predecessor in title, of the BDA. If it was acquired land - the suit would not be maintainable. The learned counsel has drawn attention to other aspects to meet the contentions of Shri Balakrishna Shastry, and seeks dismissal of the appeals.
7. On a consideration of the above contentions and on a close perusal of the record, it is seen that certain primary ingredients that would be necessary to be established by the plaintiff to sustain his case, are found wanting. The same are listed hereunder : 24
It is the main contention of the plaintiff that the suit property falls outside the land acquired for the formation of a layout. In that, though land in sy.no.15/1 was acquired, there remained an additional extent, which is the suit property. This assertion required the plaintiff to establish that the land bearing survey no.15/1 measured more than 2 acres and 20 guntas. There is no document available on record to establish this fact. Reliance placed on the description of the land acquired - in the gazette notifications, indicating that the northern boundary of the land was, (the remaining portion) 15/1, would not be sufficient to sustain the claim.
The plaintiff has sought to identify the suit property by site numbers, which were ironically assigned by the BDA, after acquisition and formation of a layout. The candid explanation offered by Shri Shastry, at the hearing of this appeal notwithstanding, there is no clear identification of the property by reference to any number. It is vaguely claimed that the three sites purchased by the plaintiff's father have been assigned a common 25 number as - no. 6. However, the entire case of the plaintiff is built around site numbers- 433, 434 & 435. In fact an amendment to the plaint was sought in the year 2007 to incorporate the said site numbers as identifying the suit property.
The plaintiff had in fact approached the BDA seeking that the said sites be reconveyed in his favour. Thereby conceding that the BDA had indeed acquired the land in question and had formed sites over the suit property. This circumstance had been suppressed in the writ petition filed by the plaintiff, in W.P.32227/1992. The said petition was filed seeking a restraint on the BDA from demolishing the construction put up by him over a portion of the suit property. That petition having been dismissed as on 21.1.1997, on the footing that the BDA had acquired the land, the cause of action for declaratory reliefs commenced to run. This is assuming that any such suit was maintainable.
The trial court has discussed at length the miserable failure on the part of the plaintiff to support his case. On the other hand it is 26 highlighted that the plaintiff had seriously damaged even the semblance of a case that was sought to be projected.
Apart from the gazette notifications wherein the northern boundary of the acquired portion indicated that there possibly remained some more extent of land bearing survey no.15/1, the plaintiff had placed reliance on Exhibits P-24 and P-25. A map is said to have been appended to the same. The said map is not shown to have been prepared by any public authority. The author of the map is not examined as a witness. This is a post litigation document and could not be accepted without being proved in the manner known to law. The trial court has rightly ignored the same. Further, as per Exhibits D-3 and D-6 - it is expressed on behalf of the BDA that was not possible to indicate the boundaries of land bearing Sy. no. 15/1 and 15/2, as the sites were formed over land bearing survey no. 15, as a single unit and which was several decades earlier. Hence, merely creation of suspicion of the existence of a certain extent of land that has been acquired would not advance the case of the plaintiff.27
The attempt on the part of the plaintiff to demonstrate that the sites were actually formed over land bearing sy. no. 15/2 and not 15/1, would not also advance the case of the plaintiff - as he was claiming land identified as those very sites in land bearing sy. no.15/1.
On the above and other infirmities, which are vividly discussed by the trial court, there is no substance in this or the connected appeal and the same are hereby dismissed.
Sd/-
JUDGE KS*