Bangalore District Court
Sri.Champalal Chaithan Prakash vs Sri.T.Krishnappa on 1 July, 2017
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE
AT BANGALORE CITY - CCH No.23.
Dated this the 1st DAY OF JULY, 2017
PRESIDING OFFICER
PRESENT: Sri. Sadananda M. Doddamani.,
B.A.,L.LB.,
XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No.3828/1994
PLAINTIFF/S: 1. Sri.Champalal Chaithan Prakash,
S/o Champalal Seth Jain,
Aged about 61 years,
R/at No.1, Devidas Building,
O.T.C. road,
Nagarthpet,
Bengaluru - 560 002.
2. Shanthilal,
S/o Champalal Seth Jain,
Aged about 55 years,
No.1, Devidas building,
OTC road,
Nagarthpet,
Bengaluru - 560 002.
(By Sri.BNA, Advocate)
--Vs.---
DEFENDANT/S:1. Sri.T.Krishnappa,
S/o Thirumalappa,
Major, No.26/3,
2 O.S.No.3828/1994
New Gurappanapalya,
Bannerghatta road,
Bengaluru - 560 081.
2. T.Neelamma,
W/o name not known to the plaintiffs
Major, No.26/3,
New Gurappanapalya,
Bannerghatta road,
Bengaluru - 560 081.
3. Brahmananda,
S/o Munichinnappa,
No.26/3,
New Gurappanapalya,
Bannerghatta road,
Bengaluru - 560 081.
(By Sri.BSN, Advocate)
********
Date of institution of suit : 05.07.1994
Nature of suit : Declaration
Date of commencement
of recording of evidence : 31.01.2003
Date on which the judgment
was pronounced : 01.07.2017
Duration of the suit: year/s month/s day/s
22 11 13
3 O.S.No.3828/1994
* * * * *
JUDGMENT
This is a suit filed by the plaintiffs against the defendants seeking the relief of declaration, possession and for permanent injunction.
2. In nutshell the case of the plaintiffs is as under:
That the plaintiff purchased the 1st schedule property, i.e., 7 to 10 under the sale deed dated 1/7/1964. The 2nd plaintiff purchased 2nd schedule property, i.e., site No.11 to 14 under sale deed dated 1/7/1964. It is further contended that since the date of purchase the plaintiffs are paying property tax to the suit properties. The mutation entries were made in the name of the plaintiffs during the year 1964 itself. After coming to know that the defendants were making efforts to pay betterment charges to the suit properties, the plaintiff filed their objection to the Bengaluru City 4 O.S.No.3828/1994 Corporation on 11/7/1989. It is further contended that the Corporation gave an endorsement dated 7/9/1989 directing the plaintiffs and the 2nd defendant to get their title decided in a court of law. Thereafter the plaintiffs issued notice dated 19/7/1989. It is further contended that on 21/6/1994 the plaintiffs noticed that the defendants without any valid title over the suit property started constructing building by taking advantage of the fact that the plaintiffs were living far away from the suit properties. The plaintiffs approached the police and the police directed them to approach the civil court. It is further contended that the 1st defendant had filed O.S.No.3237/1986 before the City Civil Court, Bengaluru (CCH-10) against the 1st plaintiff. It is further contended that the 1st plaintiff filed an application for framing additional issues regarding title to the property, which was rejected on 11/1/1993. Therefore the plaintiffs decided to file the present suit for declaration, possession and for other consequential reliefs. Since the plaintiffs had to pay 5 O.S.No.3828/1994 huge amount of court fee they have mobilized the funds and have filed the present suit, etc. In view of their above contention, they prays for to decree the suit.
3. In pursuance of the suit summons sent by this court, the defendants appeared before the court through their counsel and filed their detailed written statement by denying the plaint averments.
4. It is contended by the defendants that there is no such property as detailed in the plaint schedule and the numbers, boundaries and description given by the plaintiffs are false. It is further contended that the suit schedule property as described in the plaint cannot be identified and located. Neither the plaintiffs nor their vendors have got any right over the alleged Sy.No.53/4 at the relevant point of time. The documents produced by the plaintiffs are concocted documents. It is further contended that Sy.No.53/4 6 O.S.No.3828/1994 had been phoded as Sy.No.53/4A measuring 1 acre 2 guntas with no kharab and Sy.No.53/4B measuring 38 guntas and 1 gunta of kharab. Sy.No.53/4C measuring 1 acre 30 guntas with 34 guntas of kharab land. It is further contended that originally one Muniswamappa was the owner of 1 acre 18 guntas along with kharab attached to Sy.No.53/4 under registered sale deed dated 4/6/1964. The said Muniswamappa sold 30 guntas of land with 12 guntas of kharab land in Sy.No.53/4 in favour of one Thukaram bounded by east by remaining land of Muniswamappa, west by Bannerghatta main road, north by Chikka Gullanna's son's property, south by vendor Muniswamappa's kharab land. The said 12 guntas of kharab land is to the south of 30 guntas of main land as described in the southern boundary. Therefore under sale deed dated 4/6/1964 Thukaram got in all 30 guntas of main land and 12 guntas of kharab land attached to the main land. Therefore Thukaram got in all 42 guntas and formed sites. 7 O.S.No.3828/1994
5. It is further contended that out of the said sites he sold site No.23 and 24 each measuring east to west 40 feet and north to south 30 feet in all measuring east to west 80 feet and north to south 30 feet was sold in favour of one Subbarao under registered sale deed dated 4/6/1964.
6. It is further contended that Thukaram formed sites in the said total extent of 42 guntas of land and sold some sites. The said Thukaram sold site No.23 and 24 in favour of Dawood Khan, S/o Valli Khan under sale deed dated 13/4/1966. The said Dawood Khan sold site No.23 and 24 in favour of 1st defendant under sale deed dated 7/3/1973. Later Thukaram executed an agreement of sale dated 5/4/1974 in respect of the property including site No.23 and 24 earlier sold to 1st defendant, in all measuring east west 180 feet and north south 130 feet, on the eastern side and 120 feet on the western 8 O.S.No.3828/1994 side, bounded on the east by Sankarappa layout (said Shankarappa has purchased the said land from Muniswamappa and at present it belongs to one Jagadeesh), West by Bannerghatta main road, north by Venkateshappa layout and houses of Subba Rao and Razak Sab and south by Huchaiah's layout and houses of Ibrahim Sab and surveyor.
7. It is further contended that the 1st defendant was already in possession of site No.23 and 24 and he has been in possession of the remaining portion under an agreement of sale dated 5/4/1974. The sale deed could not be executed in favour of the 1st defendant by Thukaram because there were restrictions and barred for registration of revenue lands. It is further contended that out of this property the 1st defendant has sold : east west 40 feet and north south 130 feet (eastern side) + 120 feet (western side) to one 2 Prafullamma under the sale deed dated 10/1/1975 and she was put in possession of the said property. In 9 O.S.No.3828/1994 the remaining portion the 1st defendant has constructed RCC building measuring east to west 17 feet and 36 feet during the year 1975 and there is house measuring east to west 36 feet and north to south 15 feet each in the year 1975, three work shops, separate office, two residential portions and a open well in the said property in 1975 itself and since then, the defendants and their tenants are in possession and occupation of the said properties and the 1st defendant has paid taxes to the same.
8. It is further contended that the above said buildings have been provided with electricity and water supply in the year 1975 itself. During 1987 Vasappa S/o Muniswamappa the original owner of Sy.No.53/4 had filed O.S.No.1107/1987 for permanent injunction in respect of 1 acre 18 guntas of land in Sy.No.53/4 and the said suit was ultimately dismissed for default on 28/2/2000. When the 1st defendant had filed O.S.No.3237/86, if really the plaintiffs had any right in 10 O.S.No.3828/1994 the suit property they should have filed a suit immediately without waiting till 1994 and as such, the suit is barred by time. In the partition between the defendants, the northern portion of the property has fallen to the share of 3rd defendant and he is in possession of the same through his tenants. Since the 1st defendant has put up residential, industrial shops, commercial building in the suit property during 1975 itself, in the absence of relief of mandatory injunction the plaintiffs are not entitled for declaration or possession of the suit property. It is further contended that the 3rd defendant is the adopted son of defendant No.1 and 2 and the decree in O.S.No.1203/1996 cannot be set aside, etc. On these grounds and among other grounds they sought for the dismissal of the suit.
9. Heard the arguments and the learned counsel for the parties also filed their written arguments.
11 O.S.No.3828/1994
10. The learned counsel for the defendant in support of his arguments has relied upon the following decisions:
(1) AIR 1970 Mysore page 814 (2) (2006)5 SCC page 466 (3) AIR 2007 SC page 2306 (4) AIR 2008(4) KCCR page 2852 (5) (2012)8 SCC page 148 (6) (2014)2 SCC page 269
11. On the basis of the above rival pleadings of the parties, my learned Predecessor-in-office has framed the following as many as five issues and four additional issues:
(1) Whether the plaintiffs prove that they are the owners of the suit schedule properties ?
(2) Whether the court fee paid on the plaint is not sufficient ?12 O.S.No.3828/1994
(3) Whether the suit is barred by limitation ?
(4) Whether the plaintiffs are entitled to possession of the suit schedule properties ?
(5) What order or decree ?
Additional Issues:
(1) Whether the suit is barred by time ?
(2) Whether the plaintiffs are entitled to the reliefs sought against the 3rd defendant also regardless of the compromise decree of partition passed in O.S.No.1203/1996 ?
(3) Whether the plaintiffs prove the location and identity of the suit schedule properties ?
(4) Whether the plaintiffs prove that the defendants trespassed into suit schedule properties on and after 21/6/1994 and have 13 O.S.No.3828/1994 constructed buildings in the suit properties ?
12. The plaintiffs in order to establish their case, the PA holder of plaintiffs himself got examined as PW1 and got marked as many as 58 documents from Ex.P1 to Ex.P58 and closed their side evidence. The defendants in order to establish their case, defendant No.1 himself got examined as DW1 and got marked as many as 36 documents from Ex.D1 to Ex.D36 and also got examined one witness as DW2. The Court Commissioner Anand Kumar was examined as CW1 and got marked one document as Ex.C1 and closed their side evidence.
13. My answer to the above said issues are as under:
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Addl. Issue No.1 : In the Negative
14 O.S.No.3828/1994
Addl Issue no.2 : Plaintiffs are entitled
for declaration that they
are the owners of the suit
schedule property against
the defendants
Addl. Issue No.3 : In the Negative
Addl. Issue No.4 : In the Negative
Issue No.5 : As per the final order
for the following:
REASONS
14. Issue No.1: Before considering issue No.1 it would be relevant to state herein itself that the present suit filed by the plaintiffs was decreed by this court by granting the relief of declaration, but the relief of possession and injunction was rejected by this court on the ground that the suit schedule properties are not identified by judgment and decree dated 28/3/2006. Being aggrieved by the above said judgment and decree, the plaintiffs herein preferred RFA No.1429/2006 and defendants also preferred RFA cross objections 2/2011. After hearing both the 15 O.S.No.3828/1994 parties the Hon'ble High Court of Karnataka remanded the matter directing this court to appoint a Commissioner by its order dated 9/12/2013 and find the existence of item No.1 and 2 between site No.5 and 6 and site No.15 and 16 as per the boundaries shown in the plaint schedule property. It was further ordered that if the defendants are in possession of the area to be identified between site No.5 and 6 and site No.15 and 16, the suit of the plaintiffs for delivery of possession has to be granted. It was further ordered that if the findings of the Court Commissioner would be adverse to the claim made by the plaintiffs, then the judgment rendered by the trial court in rejecting the prayer for possession and for grant of injunction has to be confirmed by the trial court afresh. So upon perusal of the orders passed by the Hon'ble High Court of Karnataka in RFA No.1429/2006 c/w RFA CROB No.2/2011 it shows that only for the limited purpose of identification of the property through the Court 16 O.S.No.3828/1994 Commissioner the matter has been remanded to this court for fresh consideration.
15. The plaintiffs in order to establish their case, the general power of attorney holder of the plaintiff himself got examined as PW1 and filed his affidavit by way of examination-in-chief wherein he reiterated all the averments made in the plaint and in support of his case got marked Ex.P1 to Ex.P58. So in view of his oral and documentary evidence he prays for to decree the suit.
16. The defendants in order to establish their case, the defendant No.1 himself got examined as DW1 and filed his detailed affidavit by way of examination- in-chief wherein he reiterated all the averments made in the written statement. In support of his case, he got marked 36 documents from Ex.D1 to Ex.D36 and also got examined one witness as DW2. So in view of his 17 O.S.No.3828/1994 oral and documentary evidence and the evidence of his witness he sought for the dismissal of the suit.
17. The learned counsel for the plaintiffs and the learned counsel for the defendants on the basis of the oral and documentary evidence adduced and produced by their respective parties addressed their arguments. The learned counsel for the plaintiff in view of the oral and documentary evidence given by the plaintiffs urged to decree the suit by answering issue No.1 in question in the Affirmative. The learned counsel for the defendants in view of the oral and documentary evidence adduced and produced on behalf of the defendants urged to answer issue No.1 for consideration in the Negative.
18. In the light of the arguments canvassed by the respective counsels for the parties, I have gone through the records. Admittedly this is a suit filed by the plaintiffs for declaration, possession and other 18 O.S.No.3828/1994 consequential reliefs. Upon hearing rival contentions and perusal of the records, it shows that it is an admitted fact that Muniswamappa sold 30 guntas of land in Sy.No.53/4 in favour of Thukaram bounded on the east by remaining land of Muniswamappa, west by Bannerghatta main road, north by Chikka Gullanna's son's property, south by vendor Muniswamappa's kharab land under sale deed as per Ex.P18 dated 4/6/1984. It is also admitted fact that Thukaram formed sites in this 30 guntas of land and sold sites. According to the plaintiffs, Thukaram sold first schedule property, i.e., site No.7 to 10 in all measuring east to west 80 feet and north to south 60 feet in favour of 1st defendant and the second schedule property, i.e., site No.11 to 14 measuring east west 80 feet and north south 60 feet in favour of 2nd plaintiff under sale deeds as per Ex.P3 and Ex.P4 dated 1/7/1964 respectively.
19 O.S.No.3828/1994
19. It is the case of the defendants that Thukaram sold site No.23 and 24 measuring east west 80 feet and north south 30 feet in favour of Subba Rao under the sale deed Ex.P19 dated 4/6/1964 and that the said Subba Rao sold the same to Dawood Khan under sale deed Ex.P20 dated 13/4/1966 and that Dawood Khan sold the same to 1st defendant under the sale deed Ex.P2 dated 7/3/1964 by Thukaram in favour of the plaintiffs in respect of the suit properties are nominal documents, but the execution of these documents by Thukaram in favour of the plaintiffs is not seriously disputed by the defendants. Similarly the plaintiffs have not disputed the sale deeds Ex.P19 and Ex.P21 in respect of site No.23 and 24 from Thukaram and Subba Rao, Subba Rao to Dawood Khan and Dawood Khan to 1st defendant. In other words, it can be held that Thukaram out of 30 guntas of land in Sy.No.53/4 which he had purchased sold the suit properties, i.e., site No.7 to 14 in favour of the plaintiffs and site No.23 and 24 in favour of Subba 20 O.S.No.3828/1994 Rao, who in turn has sold it to Dawood Khan who in turn sold it to the 1st defendant.
20. In this case the plaintiffs have produced the sale deeds Ex.P43 to Ex.P51 in all nine sale deeds executed by Thukaram in respect of other sites in 30 guntas of land purchased by him from Muniswamappa, besides sale deeds Ex.P3 and Ex.P4 in favour of plaintiffs and Ex.P19 to Ex.P21 in respect of site No.23 and 24 in favour of the 1st defendant and his vendors. In all the sale deeds, i.e., Ex.P43 to Ex.P51 it is mentioned that Thukaram had purchased the 30 guntas of land in Sy.No.53/4 and had formed sites and was selling the sites to the purchasers as per the layout plan. All these sale deeds, i.e., Ex.P43 to Ex.P51 are executed to Thukaram in 1964. The total area sold by Thukaram under the sale deeds, i.e., Ex.P43 to Ex.P51 is 13,200 square feet. As already Thukaram had sold site No.7 to 10 measuring 80 feet x 60 feet = 1800 square feet under sale deed Ex.P3 in 21 O.S.No.3828/1994 favour of 1st plaintiff and site No.11 to 14 measuring 80 feet x 60 feet = 4800 square feet under sale deed Ex.P4 in favour of 2nd plaintiff and site No.23 and 24 measuring 30 feet x 80 feet = 2400 square feet in favour of the 1st defendant. So the total extent of the above sites sold by Thukaram under the above sale deeds Ex.P3 and Ex.P4, Ex.P19 to Ex.P21, Ex.P43 to Ex.P51 would be 25,200 sq.ft. What was purchased by Thukaram from Muniswamy under the sale deed Ex.P28 dated 4/6/1964 was 30 guntas = 32,670 sq.ft. What was sold as aforesaid was 25,200 sq.ft. What remained with Thukaram after the sale of sites as aforesaid during the year 1964 was 7,470 sq.ft. The defendants have relied on Ex.D5 agreement of sale dated 5/4/1974 executed by Thukaram in favour of 1st defendant and have contended that they have purchased the property in Sy.No.53/4 including site No.23 and 24 in all measuring east west 180 feet and north south 130 feet + 120 feet = 22,500 sq.ft. 2 22 O.S.No.3828/1994 from Thukaram out of 30 guntas of land in Sy.No.53/4 purchased by Thukaram from Muniswamappa under sale deed Ex.P18 dated 4/6/1964. Thus Thukaram had purchased only 30 guntas of land = 32,670 sq.ft. in Sy.No.53/4 from Muniswamappa and when he had already sold 25,200 sq.ft. area of sites under the sale deeds Ex.P3, Ex.P4, Ex.P19 to Ex.P21, and Ex.P43 to Ex.P51 during 1964 and when only an area of 7470 sq.ft. had remained with Thukaram he could not have either sold or agreed to have sold 25,200 sq.ft. in favour of 1st defendant under Ex.P5 agreement of sale dated 5/4/1974. Hence title of the plaintiffs in respect of the suit properties, i.e., site No.7 to 14 purchased under the sale deeds Ex.P3 and Ex.P4 dated 1/7/1964 cannot be defeated by Ex.D5 agreement of sale dated 5/4/1974 relied on by the defendants.
21. Upon perusal of the records, it shows that after the production of Ex.P43 to Ex.P51 the defendant No.3 has amended his written statement and has 23 O.S.No.3828/1994 pleaded that Sy.No.53/4 has been phoded as Sy.No.53/4A measuring 1 acre 2 guntas with no kharab, Sy.No.53/4B measuring 38 guntas with one gunta of kharab and Sy.No.53/4C measuring 1 acre 30 guntas with 34 guntas of kharab and that Muniswamappa who had 1 acre 18 guntas along with kharab and sold 30 guntas with attached kharab land of 12 guntas and thereby Thukaram in all got 42 guntas of land under sale deed Ex.P18 dated 4/6/1964 and after selling the sites to outsiders he retained 20.5 guntas of land, as such, he had sufficient land to sell the property measuring east west 180 feet and north south 130 + 120 to 2 defendant No.1 under agreement of sale Ex.D5. In this regard the defendants have produced Ex.D28 to Ex.D30 RTC extracts, Ex.D31 Tippani copy, Ex.D32 Atlas copy, Ex.D33 Kharab Utan and Ex.D34 Revenue settlement, Akarband, which shows that site No.53/4A was measuring 1 acre 2 guntas with no kharab, 24 O.S.No.3828/1994 Sy.No.53/4B was measuring 38 guntas with one gunta kharab and Sy.No.53/4C was measuring 1 acre 30 guntas measuring 34 guntas of kharab. Perusal of the Xerox copy of the partition deed dated 9/4/1949 entered in between Muniswamappa, Erappa and Venkatappa, S/o Dodda Gullolu on the one hand and Muniyiappa @ Chikka Gullolu and his sons, produced by the plaintiffs shows that southern portion of Sy.No.53/4 measuring 1 acre 18 guntas was allotted to the share of Muniyappa @ Chikka Gullolu and his sons. There is no mention of partition of kharab in this partition deed though there is mention of 2 kuntas and government bandi road as the southern boundary of the share of 1 acre 18 guntas allotted to Muniswamappa, Erappa and Venkatappa in Sy.No.53/4.
22. Upon perusal of the sale deed dated 6/5/1968 executed by Venkatappa S/o Muniyappa @ Dawood Khan and his wife and children in favour of 25 O.S.No.3828/1994 K.Shankar shows that the vendor got his share in Sy.No.55/1 and 53/4 and out of the same they sold 30 guntas of land bounded on the east by the share allotted to Chikka Gullolu, west by land sold by Muniswamappa in favour of Thukaram, north by the share allotted to Chikka Gullolu's wife and children and south by kunte land retained by the brothers. In other words under the partition deed dated 9/4/1949 Muniswamappa, Erappa and Venkataswamappa, sons of Dodda Gullolu got southern portion of Sy.No.53/4 measuring 1 acre 18 guntas and that out of the same Muniswamappa sold western portion of Sy.No.53/4 measuring 30 guntas of land in favour of Thukaram under the sale deed Ex.P18 dated 4/6/1964 and that Muniswamappa's brother Venkatappa sold eastern portion of Sy.No.53/4 out of 1 acre 18 guntas in favour of K.Shankar under sale deed dated 6/5/1968 and that both Muniswamappa and Venkatappa had retained the southern portion of the land referring to kunte land. So it is clear from the partition deed dated 26 O.S.No.3828/1994 9/4/1949 sale deed Ex.P18 executed by Muniswamappa in favour of Thukaram and the sale deed dated 6/5/1968 executed by Venkatappa in favour of R.Shankar with Muniswamappa and his brothers Erappa and Venkatappa retained kharab land towards south of land sold under Ex.P18 and sale deed dated 6/5/1968, as is evident from the southern boundary of Ex.P18 as "Namma babathu Kharab Jameenu" and the southern boundary in the sale deed dated 6/5/1968 as "Naavu Anna Thammandiru Bahuthavadalli Ulisikondirathakka Kunte Jameenu". Hence it is clear that kharab land which is mentioned to be the south of 30 guntas of land sold by Muniswamappa in favour of Thukaram under the sale deed Ex.P18 was the kharab belonging to Muniswamappa and his brothers Erappa and Venkatappa and that no kharab was sold under sale deed Ex.P18 in favour of Thukaram. If really Muniswamappa had sold 12 guntas of kharab land in favour of Thukaram under sale deed Ex.P18, the said 27 O.S.No.3828/1994 fact would have been mentioned in Ex.P18, but the same is not mentioned.
23. As already stated, as the kharab land towards the south of 30 guntas of land sold under Ex.P18 was belonging to Muniswamappa, Venkatappa and Erappa, as such, the arguments of the learned counsel for the defendant that kharab passed with the land when it is sold cannot be accepted. Further no document is produced by the defendants to show that what was the extent of kharab which had fallen to the share of Muniswamappa to further convey to Thukaram under the sale deed Ex.P18. Hence the contention of the defendants that Muniswamappa the vendor of Thukaram, got 30 guntas + 12 guntas, in all 42 guntas of kharab land under the sale deed Ex.P18 cannot be believed.
24. The 1st defendant had filed O.S.No.3237/86 which is very evident from Ex.P34 against 1st plaintiff. 28 O.S.No.3828/1994 In Ex.P34 the 1st defendant claimed permanent injunction order in respect of site No.23 and 24 in Sy.No.53/4 measuring east west 143 feet and north to south 120 + 130 bounded on the east by 2 Praphulamma's land, west by Bannerghatta road, north by Venkatappa's layout and south by Huchaiah's layout which tallies with the written statement schedule in the present case on the basis of the sale deed Ex.P21 dated 7/3/1973 executed by Dawood Khan in favour of the 1st defendant and an agreement executed by Ramakka on 5/4/1974.
25. The 1st defendant produced the agreement dated 5/4/1974 executed by Ramakka in favour of 1st defendant in the said suit O.S.No.3237/1986 as per Ex.P32 list of documents. Ex.P36 the written statement of the 1st defendant filed in O.S.No.1107/87 filed by Vasappa S/o Muniswamappa, the vendor of Thukaram shows that for the first time the 1st defendant referred to Ex.D5 agreement dated 29 O.S.No.3828/1994 5/4/1974 executed by Thukaram in his favour. In other words, the 1st defendant relied upon the agreement dated 5/4/1974 executed by Ramakka W/o Muniswamappa in O.S.No.3237/1986 whereas he relied on Ex.D5 agreement dated 5/4/1974 by Thukaram in the written statement in O.S.No.1107/87. The defendants counsel has stated in his written arguments that Ramakka, W/o Muniswamappa requested the 1st defendant to pay her money as they had lost the land and that she received Rs.2,500/- from the 1st defendant and executed the document on a plain paper on 5/4/1974 which was referred to in the plaint Ex.P34 in O.S.No.3237/1986 and as such no much importance can be given to the said agreement executed by Ramakka. The agreement dated 5/4/1974 executed by Ramakka in favour of 1st defendant in respect of the remaining properties to her husband Muniswamappa in Sy.No.53/4 and the agreement Ex.D5 dated 5/4/1974 executed by Thukaram in favour of the 1st defendant in respect of 30 O.S.No.3828/1994 the sale of the property out of 30 guntas of land he had purchased, make a lot of difference in as much as Thukaram could not have sold the property mentioned in Ex.D5, as he had already sold 22,500 square feet under Ex.D5. When he had only 7,470 sq.ft, whereas Muniswamappa had property in Sy.No.54/3 even after the sale of 30 guntas of land in favour of Thukaram and his wife to claim the said property to the extent which was available. Perusal of Ex.D7 amended plaint in O.S.No.1107/1987 filed by Vasappa S/o Muniswamappa shows that Vasappa had claimed the property under the partition deed dated 11/4/1949 and decree in O.S.No.981/87 dated 14/6/1990 against Thukaram and also mutation entries in MR 1/91-92 in respect of 30 guntas of land. The written statement filed by Shankarappa in O.S.No.1107/87 shows that he had contested the said suit on the ground that he had purchased 30 guntas of land from Venkatappa under sale deed dated 6/5/1968. The order sheet Ex.D5 in O.S.No.1107/1987 shows that 31 O.S.No.3828/1994 the said suit was dismissed for non-prosecution on 28/2/2000. Whatever may be the result of O.S.No.1107/87, the 1st defendant should have pleaded Ex.D5 agreement of sale dated 5/4/1974 in his plaint in O.S.No.3237/86 which had been filed earlier to O.S.No.1107/87. Hence the non mention of Ex.D5 by the 1st defendant in his plaint in O.S.No.3237/86 assumes much importance and casts a doubt on the agreement of sale Ex.D5.
26. Upon perusal of Ex.D5 agreement of sale shows that the stamp paper of Ex.D5 has been purchased on 1/12/1974, whereas the agreement is stated to have been executed on 5/4/1974 by Thukaram, which casts a doubt on the genuineness of Ex.D5. In the written arguments of defendants counsel it is stated that the 1st defendant was an illiterate and he depended on the person who drafted the agreement and that agreement might have been executed on 1/12/1974 but the scribe might have put 32 O.S.No.3828/1994 the date 05/4/1974 by mistake, but this explanation is not found in the evidence of 1st defendant. Further the 1st defendant has executed registered sale deed Ex.P22 dated 10/1/1975 in favour of Prapullamma in respect of property measuring east west 40 feet and north south 130 feet bounded on the east by road, west by road, north by 1st defendant's land and south by Huchaiah's sites which according to the case of the 1st defendant is a portion of the property mentioned in Ex.D5, whom the 1st defendant could sell the property to Prapulamma under sale deed dated 10/1/1975, nothing prevented the 1st defendant to have obtained the registered sale deed from Thukaram instead of obtaining agreement of sale on 1/12/1974, if the date of Ex.D5 is taken as 1/12/1974. When it is mentioned in Ex.D5 that registered sale deed could not be executed since the government had stopped registration the intended date of execution of Ex.D5 can be taken as 5/4/1974. Further neither there is mention of agreement dated 5/4/1974 executed by 33 O.S.No.3828/1994 Thukaram nor the agreement dated 1/12/1974 executed by Thukaram in favour of 1st defendant in Ex.P22 in regard to the source of title of 1st defendant to convey the property in favour of Prapullamma. On the other hand what is mentioned in Ex.P22 regarding the source of title of the 1st defendant is that he had purchased the said property under the sale deed dated 7/3/1973 as per Ex.P21 from Dawood Khan.
27. As it is already stated what was purchased by the 1st defendant under the sale deed Ex.P21 dated 7/3/1973 from Dawood Khan is only site No.23 and 24 measuring 30 feet x 80 feet = 2400 sq.ft. Hence the above said arguments of the learned counsel for the defendants cannot be accepted. When Thukaram had already sold an area of 20,200 sq.ft out of 30 guntas of land he had purchased only 7470 sq.ft., the 1st defendant should have been careful of entering into any agreement of sale with Thukaram as held in the decision reported in :
34 O.S.No.3828/1994
(1) AIR 1991 Kar page 273 (2) AIR 1963 SC page 1917 (3) AIR 1985 Patna page 110.
28. Now it has to be seen whether sale deeds Ex.P3 and Ex.P4 in favour of plaintiffs were nominal. The tax paid receipts at Ex.P5, Ex.P8 dated 1/2/1965, Ex.P7 and Ex.P10 dated 28/1/1978, Ex.P6 dated 21/5/1981 and Ex.P9 dated 21/7/1981 shows that the plaintiffs have exercised ownership rights over the said properties. Further the notices at Ex.P11 and Ex.P12 dated 11/7/1989 given by plaintiff to Corporation, legal notice Ex.P14 and Ex.P15 dated 13/7/1989 issued to defendant No.1 and the litigation between the plaintiff and defendant No.1 in O.S.No.3237/1986 and RRT (2) DIV.No.6/85-86 before Tahsildar and proceedings before Corporation shows that plaintiffs had been ascertained their rights over the suit properties on the basis of the sale deeds, Ex.P3 and Ex.P4. Hence, the contention of the 35 O.S.No.3828/1994 defendants that the sale deeds Ex.P3 and Ex.P4 are nominal sale deeds cannot be accepted. So by considering the over all oral and documentary evidence adduced and produced by the parties it can be said that the plaintiffs have succeeded to prove that they are the owners of the suit properties. When that would be the case, this court is left with no option except to answer issue No.1 in the Affirmative. Accordingly issue No.1 is answered in the Affirmative.
29. Issue No.4 & Additional Issue No.3 and 4:
All these issues are interconnected, therefore they have been taken together for common consideration and discussions in order to avoid repetition of facts and also for the sake of convenience.
30. It is the definite case of the plaintiffs that the defendants have trespassed into the suit properties on and after 21/6/1994 and have constructed building in the suit properties and as such the plaintiffs are entitled for possession of the suit schedule properties. 36 O.S.No.3828/1994 On the other hand, the defendants have specifically disputed the location and identity of the suit properties and have contended that the properties which is in occupation of the defendants is different from the properties claimed to have been purchased by the plaintiffs from Thukaram. Hence it is the duty of the plaintiffs to prove the identity and location of the suit schedule properties and the defendants have trespassed into the suit properties.
31. In this case the Commissioner was appointed to identify where the suit schedule properties are located. The Commissioner inspected the suit schedule property and submitted his report. The Commissioner is also examined before the court as CW1 and the report submitted by him is marked as CW1. The Commissioner in his evidence stated that the suit schedule property comes in Sy.No.53/4. The learned counsel for the plaintiff in his written arguments contended that the plaintiff has filed the 37 O.S.No.3828/1994 present suit in respect of 1st schedule, i.e., site No.7 and 10 together measuring 80 feet x 60 feet in Sy.No.53/4 of Gurappanapalya, Begur hobli, Bengaluru south taluk and the 2nd plaintiff in respect of 2nd schedule, i.e., property site No.11 to 14 together measuring 80 feet x 60 feet in Sy.No.53/4 of Gurappanapalya, Begur hobli, Bengaluru south taluk, seeking declaration and possession against the defendants. It is further contended the defendants filed their written statement contending that they are the lawful owners of land measuring 30 guntas in Sy.No.53/4 of Gurappanapalya village which was purchased by them under registered sale deed dated 4/6/1964 from one Muniswamappa who sold it along with 12 guntas of kharab land. It is further contended that the defendants in their written statement contended that the land in Sy.No.53/4 was later phoded as Sy.No.53/4 A measuring 1 acre 2 guntas, Sy.No.53/4B measuring 38 guntas with one gunta of kharab, Sy.No.53/4C 1 acre with 34 guntas kharab 38 O.S.No.3828/1994 and that Muniswamappa was the owner of 1 acre along with kharab land attached to Sy.No.53/4.
32. It is further contended that this court by its judgment and decree dated 30/3/2006 held that the plaintiffs had proved their title and ownership over the suit schedule property but held that the plaintiffs were not entitled to possession of the suit schedule properties mainly on the ground that the identity of the property had not been established. It is further contended that the plaintiffs challenged the judgment and decree passed in the suit in RFA No.1429/2006 and defendants also preferred agreement objections in CROB 2/2011. Both the matters were heard and the Hon'ble High Court of Karnataka has disposed off the appeal and the cross objections by remanding the matter to this court with the observations that "the best way is to appoint a Court Commissioner and to fix the existence of site No.5 and 6 and site No.15 and 16 and ensure whether there exists a property 120 feet x 39 O.S.No.3828/1994 80 feet in between Bannerghatta main road and 20 feet road. If the Court Commissioner files a report that there exists a property between site No.5 and 6 and site No.15 and 16 and in that area if the defendants are in possession of the same the defendants have to be dispossessed by directing them to hand over possession to the plaintiffs. If the findings of the Court Commissioner would be adverse to the claim made by the plaintiffs then the judgment rendered by the trial court in rejecting the prayer for possession and for grant of injunction is to be confirmed by the trial court afresh".
33. After the remand of the matter the Assistant Director of Land records, city survey, group 3, Bengaluru came to be appointed as Court Commissioner to locate and identify the property. It is further contended that the Court Commissioner has submitted his report on 25/1/2016 opining that the land in Sy.No.53/4 has been phoded as 53/4A, 53/4B 40 O.S.No.3828/1994 and 54/4C. It is further contended that the property in dispute is identified by both the parties, i.e., plaintiffs and defendants and it is found that the disputed property comes within the Sy.No.53/4B and Sy.No.53/4C. The Commissioner has identified this property as item No.1 and 2 in the sketch filed by him before the court. The entire bunch considering of the Commissioner report along with sketch, RTC and mutation in respect of Sy.No.53/4B have been marked as Ex.C1.
34. It is further contended that it is an undisputed fact that the disputed property has been identified and located by the Commissioner as per his report and sketch. It is also an undisputed fact that the defendants have also identified and shown the said property as the one in dispute. The fact that the land in Sy.No.53/4 has been phoded as Sy.No.53/4A, 53/4B and 53/4C is also the matter which is concluded and considered by the Hon'ble High Court of 41 O.S.No.3828/1994 Karnataka in the appeal. It is further contended that the Hon'ble High Court of Karnataka while disposing off the appeal had observed that in case the Commissioner is able to identify and fix the extent of site No.5 and 6 on one side and 15 and 16 on another side and measure whether their exists property measuring 120 feet and 80 feet in between Bannerghatta main road and 20 feet road and if the defendants are in possession of the same, they have to be directed to hand over possession to the plaintiffs. If the findings of the Court Commissioner would be adverse to the claim made by the plaintiffs then the judgment rendered by trial court in rejecting the prayer for possession and for grant of injunction has to be confirmed by the trial court afresh.
35. It is further contended that the report submitted by the Court Commissioner shows that he was not able to identify site No.14 in between site No.5 and 6 and 15 and 16, however he was able to identify 42 O.S.No.3828/1994 and locate the property which is in dispute between the parties to the suit and he has made it clear that it is in Sy.No.53/4 only. It is mentioned that the suit properties are coming within Sy.No.53/4B and 53/4C. Therefore in view of the report of the Commissioner holding that the property in dispute is in the possession of defendants, defendants have to be directed to deliver possession of the property. It is further contended that the report submitted by the Commissioner though states that site No.7 to 14 have not been located, the report is in favour of the plaintiffs, i.e., the Commissioner has located the property of the plaintiffs in Sy.No.53/4. The RTC and mutation in respect of Sy.No.53/4B shows the name of the plaintiffs as khathedars and owners. So it is contended that the plaintiffs have been able to identify their property as part of Sy.No.53/4B of Gurappanapalya. It is further contended that reference may also be made in respect of the report submitted by earlier Commissioner who had also made 43 O.S.No.3828/1994 it clear that the land in Sy.No.53/4 have been sub- divided as 53/4A, 53/4B and 53/4C respectively and that the disputed property was in Sy.No.53/4B. It was also stated by him that towards the south of the property there is 20 feet road.
36. It is further contended that the contentions of the defendant is that the documents of title filed by the plaintiffs are concocted and that the plaintiffs cannot be represented by their power of attorney holder and the evidence lead in by the plaintiffs through their general power of attorney holder is not tenable and the said contentions are not available to the defendants at this stage. In fact all these contentions have already been considered and concluded by the judgment rendered in RFA No.1429/2006 and the matter has been remanded to this court only for a limited purpose. So in view of the written arguments filed by the plaintiffs counsel it is 44 O.S.No.3828/1994 prayed to answer issue No.4 and additional issue No.3 and 4 in the Affirmative.
37. The learned counsel for the defendants also filed his written arguments, wherein it is contended that this court by its judgment and decree dated 28/3/2006 partly allowed the present suit by declaring that the plaintiffs are the owners of the suit schedule properties and rejected the prayer of the plaintiffs for possession on the ground that the suit schedule properties are not identifiable. Aggrieved by the judgment and decree the plaintiffs have preferred RFA No.1429/2004 and the defendants have preferred cross objections 2/2011 before the Hon'ble High Court of Karnataka and the Hon'ble High Court of Karnataka by its judgment dated 9/12/2013 remanded the matter to this court by appointing a Court Commissioner to inspect the property and identify as to whether their exists site No.7 to 10 and 11 to 14 in all measuring east to west 80 feet and north to south 45 O.S.No.3828/1994 120 feet (suit schedule property) in between site No.5 and 6 on the northern side, site No.15 and 16 on the southern side, 20 feet road on the eastern side and Bannerghatta road on the western side as claimed by the plaintiffs in the suit and if the defendants are in possession of the area to be identified between site No.5 and 6 and site No.15 and 16, the suit of the plaintiffs for delivery of possession has to be granted.
38. The learned counsel for the defendants in his written arguments has stated about the observation made by the Hon'ble High Court of Karnataka in the Regular First Appeal which is as under.
39. It is further contended that "after hearing the parties the learned counsel appearing for the parties fairly conceded that the plaintiffs in order to get the possession of the property have to establish the identity of the property. Since the plaintiffs and 46 O.S.No.3828/1994 defendants are trying to lay title under different documents they fairly submit that the question of title need not be considered in this appeal and the parties would be satisfied if the relief sought for by the plaintiffs is considered by the trial court afresh by appointing Court Commissioner in order to fix boundaries as per schedule 2 wherein it is stated that the property schedule No.1 and 2 are situated in between site No.5 and 6 on the northern side and site No.15 and 16 on the southern side and western Bannerghatta main road and eastern side 20 feet main road."
40. "Admittedly the property claimed by plaintiffs and defendants are located in different placed though they are situated in Sy.No.53 identity of these two properties cannot be identified by the Surveyor, Assistant Director of Land Records because the entire area is covered within the purview of Corporation city of Bengaluru and several buildings have come up. 47 O.S.No.3828/1994 Hence question of fixing the boundaries of the survey numbers claimed by each of them is not possible but undisputed fact is that item No.1 and 2 of plaint schedule properties are situated in between site No.5 and 6 on the one side and site No.15 and 16 on the other side in one block."
41. "Therefore, we are of the view that to put an end to the litigation and to identify whether defendants have encroached any portion of the property in between site No.5 and 6 and site No.15 and 16 and whether they have to be effected by the Court based on the suit filed by the plaintiffs the best way is to appoint Court Commissioner and to fix the existence of site No.5 and 6 and site No.15 and 16 and measure whether there exists the property 120 x 80 feet in between Bannerghatta main road and 20 feet road. If the Court Commissioner filed a report that there exists property between site No.5 and 6 and site No.15 and 16 and in that area if the defendants are in possession 48 O.S.No.3828/1994 by directing them to hand over the possession of the same, the defendants have to be dispossessed by directing them to hand over possession to the plaintiffs. If the findings of the Court Commissioner would be adverse to the claim made by the plaintiffs, then the judgment rendered by the trial court is to be considered afresh."
42. "Accordingly both the appeal and cross objections are disposed off by condoning the delay in filing the cross objections and confirming the title of the plaintiffs to the suit property and the matter is remanded to the trial court to appoint Court Commissioner and find out the existence of item No.1 and 2 between site No.5 and 6 and site No.15 and 16, plaint schedule property. It is further ordered that if the defendants are in possession of the area to be identified between site No.5 and 6 and site No.15 and 16, the suit of the plaintiffs for delivery of possession has to be granted."
49 O.S.No.3828/1994
43. So it is contended by the defendants in their written arguments that from the reading of the above order of the Hon'ble High Court of Karnataka, it is very clear that the matter came to be remanded to this court for limited purpose of identification of the suit schedule property and if the said properties are identified in between site No.5 and 6 on the northern side, site No.15 and 16 on the southern side 20 feet and Bannerghatta road on the western side and for their existence 120 x 80 feet property as claimed by the plaintiffs and if the same is in possession of the defendants, prayer of the plaintiffs for possession has to be granted or else the same is required to be dismissed.
44. It is further contended that subsequent to the reminder of the case, even though the Hon'ble High Court of Karnataka expressed its view that the official of survey is not a fit person to identify the suit 50 O.S.No.3828/1994 schedule property, as the area is already developed, the plaintiffs have filed an application on 7/7/2004 to appoint the Taluk Surveyor as Court Commissioner to survey the land in Sy.No.53 of Thavarekere, Begur hobli. Even though the Hon'ble High Court of Karnataka in its judgment clearly held the Court Commissioner is required to identify the suit schedule property in between site No.5 and 6 on the northern site, site No.15 and 16 on the southern side, 20 feet road on the eastern side and Bannerghatta main road on the western side, the plaintiff made an application to survey of land bearing Sy.No.53 of Gurappanapalya village. It is further contended that during calling of the case at first hours, the matter came to be passed over. It is further contended that contrary to the directions of the Hon'ble High Court of Karnataka, the plaintiffs have put forward the wrong step from the very beginning itself by filing wrong application. Immediately after the calling hours in the morning session itself without affording an opportunity to file 51 O.S.No.3828/1994 objections to the defendants, this court believing the plaintiffs and their application without looking into the order of the Hon'ble High Court of Karnataka was pleased to pass orders as prayed for by the plaintiffs in the application. It is further contended that after bringing to the notice of this court about the orders of Hon'ble High Court of Karnataka, this court was pleased to rectify its mistake and pass orders as per the directions of the Hon'ble High Court of Karnataka on 7/7/2004 and even though the surveyor is not required to be appointed as Court Commissioner, surveyor came to be appointed as Court Commissioner. So it is contended that at the first instance itself the plaintiffs played fraud on the court by misleading the court about the order of Hon'ble High Court of Karnataka and made this court to believe them and under such circumstances the surveyor came to be appointed as Court Commissioner and accordingly Commissioner warrant was issued. 52 O.S.No.3828/1994
45. It is further contended that after appointing the Court Commissioner the defendants have filed their memo of instructions on 11/7/2004 and then the office of this court issued Commissioner warrant as per the orders passed by this court and as per the same the Court Commissioner fixed the date for spot inspection on 22/9/2014. It is further contended that the Court Commissioner inspected the property in question on 22/9/2014 and the plaintiffs gave their memo of instructions at the spot and even though there was clear direction from this court and the Hon'ble High Court of Karnataka, the Court Commissioner started surveying the entire land bearing Sy.No.53/4. It is further contended that even though the defendants and their counsels have objected for the same and there is clear cut direction from the Hon'ble High Court of Karnataka, the Court Commissioner surveyed the area, but as there is no layout plan to identify the property he directed the general power of attorney holder of the plaintiffs to 53 O.S.No.3828/1994 produce the same and if the same is not given he is not in a position to identify the property. It is further contended that the plaintiffs pressurized the Court Commissioner to complete the work on the said day itself. It is further contended that the Court Commissioner had returned the warrant along with letter dated 15/11/2014 along with the mahazar conducted by him at the spot wherein he clearly stated in page No.2 that in order to identify the suit schedule property the sanction layout plan is very much required and he will complete the commission only after the production / furnishing of the sanctioned layout plan.
46. It is further contended that as the Court Commissioner carried out the survey in contrary to the directions of this court and Hon'ble High Court of Karnataka, the defendants have filed their objections to the Commissioner letter on 20/1/2015 and prayed to appoint any other person as Court Commissioner as 54 O.S.No.3828/1994 viewed by the Hon'ble High Court of Karnataka, however this court by its order dated 30/9/2015 rejected the objections on the ground that the Court Commissioner had sought time to complete the work for sanction plan and since the plaintiffs have produced the documents sought for order for re-issue of the Commissioner warrant for proper adjudication. It is further contended that the plaintiffs have not at all produced the sanction plan as sought by the Court Commissioner, but produced other documents which are unwarranted and not claimed by the Court Commissioner. It is further contended that subsequent to the issuance of Commissioner warrant, the Commissioner had visited the spot / property in possession of the defendants on 2/12/2015. However, a new person from the survey department had arrived as Court Commissioner. It is further contended that it is brought to the notice of the Court Commissioner that as per the Hon'ble High Court of Karnataka order and as per the order of this court, the Commissioner is 55 O.S.No.3828/1994 required to find out property number of the multistoried buildings situated on the northern and southern side of the property in possession of the defendants and the property No.5 and 6 and site No.15 and 16 respectively as claimed by the plaintiffs, then find out whether their exists property measuring east to west 80 feet and north to south 120 feet and if it exists, whether there exists road on eastern side from Bannerghatta road side or not. It is further contended that the Commissioner had not at all bothered to hear anything and he started surveying entire land bearing Sy.No.53. It is further contended there are multistoried buildings situated at northern and southern side of the property in possession of the defendants when the plaintiff claimed property in possession of the defendants belongs to them the very remarkable question that arises for consideration is what is the property number of the buildings situated on the northern and southern side of the property in possession of the defendants. If the Court 56 O.S.No.3828/1994 Commissioner had identified their said properties there ends the matter. It is further contended that the Court Commissioner had enquired about the said building owners about the property numbers and both property owners have stated as claimed by the plaintiffs and in this regard the Court Commissioner had prepared a rough note. It is further contended that since the Court Commissioner had not followed the order passed by the Hon'ble High Court of Karnataka and the order of this court, as such, the counsel for the defendants have signed the spot mahazar under protest. It is further contended that thereafter the Court Commissioner submitted his report before this court on 25/1/2016 along with the documents submitted by the plaintiff.
47. It is further contended that the Court Commissioner was examined as CW1 and Ex.C1 was marked and on obtaining the certified copies of the evidence and documents submitted by the Court 57 O.S.No.3828/1994 Commissioner the defendants and the counsels shocked to know that the plaintiffs have played fraud on this court. The plaintiffs have manipulated the reissue Commissioner warrant with the help of officials of this court and wherein new things has been inserted in the Commissioner warrant. As per the new warrant the word Sy.No.53 came to be inserted and old written things have been struck down without the order of this court and even though it was brought to the notice of the Court Commissioner about the court order and the order of Hon'ble High Court of Karnataka he had not uttered even a single word at the time of Commission that he was directed to survey the entire land in Sy.No.53 and in the said circumstances, prior to cross- examination of Court Commissioner, the defendants have made an application before this court under section 151 C.P.C. to initiate necessary action against concerned officials of this court who have prepared it by inserting fresh words on 7/7/2014 passed by this court and the Hon'ble High Court of Karnataka. It is 58 O.S.No.3828/1994 further contended that this court directed the defendants to go with the cross-examination as the government official is very much present before the court and will consider the said application and will take necessary action against the concerned if really the Commissioner warrant is manipulated at the time of disposing the main matter.
48. It is further contended that the very answers given by CW1 Court Commissioner clearly shows that site No.5 and 6 on the northern side is not identified and site No.15 and 16 on the southern side is also not identified. It is further contended that the evidence given by CW1 also shows that no sanction plan is produced to identify the property, roads which are existing adjacent to the property in possession of the defendants which runs from east to west connecting the Bannerghatta road. It is further contended that even though the memo of instructions filed by the defendants is in the file of Commissioner, he falsely 59 O.S.No.3828/1994 stated that memo of instructions filed by the defendants is not furnished to him, as such, he had not reply to the same. It is further contended that the very evidence given by the Court Commissioner shows that he has admitted that the defendants have given oral instructions at the spot, but he had not placed anything in this regard in his report. It is further contended that the Court Commissioner in his cross- examination also admitted the fact that the previous court Commissioner had returned the Commissioner warrant for want of sanctioned layout plan and papers relating to the same are in his file and even now also the plaintiffs have not furnished the sanction layout plan. So what it is contended that though the sanction plan is not produced, the court Commissioner in order to help the plaintiffs, in collusion with the general power of attorney holder of the plaintiff had conducted the survey in entire Survey numbers in contrary to the order passed by the Hon'ble High Court of Karnataka and the warrant issued by this court.
60 O.S.No.3828/1994
49. It is further contended that though the court Commissioner had stated that the property in possession of the defendants comes in Sy.No.53/4B and C. The plaintiffs have produced the RTC and pahani of land bearing Sy.No.53/4B through the Court Commissioner. In the RTC the name of one Seetharam is mentioned as against 4 ½ guntas and name of Pavan Prakash is mentioned as against 4 ½ guntas. The name of the 1st plaintiff is Champa Lal, Chaithan Prakash and name of the 2nd plaintiff is Shanthilal. It is not known who is Seetharam, Champa Lal and Pavan Prakash and during the course of arguments the plaintiff's counsel contended that their property is in land bearing Sy.No.53/4B. It is further contended that the plaintiffs filed the present suit on the basis of the sale deed of the year 1964 and wherein the measurement is mentioned in square feet and not in guntas. When extent is not in guntas the Revenue Authorities have no right to effect the mutation in 61 O.S.No.3828/1994 guntas. It is not the case of the plaintiffs that they are the owners of land measuring 4 ½ guntas each in land bearing Sy.No.53/4B of Gurappanapalya village. Now plaintiffs trying to lay claim that their property comes in land bearing Sy.No.53/4B. It is further contended that when RTC and pahani stands in the name of plaintiffs in the year 1989 itself, why the plaintiffs have not filed the suit on the basis of the RTC which itself goes to show that mutation entry and subsequent entries in the RTC are all created and concocted.
50. It is further contended that even assuming that the plaintiffs property comes under the land bearing Sy.No.53/4B the land bearing Sy.No.53/4B measures 38 guntas or 41382 square feet. The total extent of the suit schedule property is 9,600 sq.ft., out of the above 41382 square feet land where exactly 9600 square feet belongs to the plaintiffs is situated. The Court Commissioner was not able to identify the same. It is further contended that the Commissioner 62 O.S.No.3828/1994 is not able to identify the 30 guntas of land purchased by Thukaram and the Commissioner is also not able to identify from which point of land in land bearing Sy.No.53/4 Thukaram had formed sites. It is further contended that except the western side Bannerghatta road the Court Commissioner is not able to identify the boundaries of the suit schedule properties on three sites. It is further contended that when there is serious dispute about the identification of the property and the report submitted by the Commissioner shows that he has failed to identify the disputed property certainly the plaintiffs are not entitled for the relief of possession and injunction. In support of his case, he has relied upon the following decisions:
(1) AIR 2003 Madras page 374 (2) 2008(4) KCCR page 2852 (3) AIR 2009 SC page 2966 (4) AIR 2000 Madras page 465 (5) AIR 1970 Mysore page 814 (6) (2012)8 SCC page 148 63 O.S.No.3828/1994 (7) (2014)2 SCC page 269
51. By relying upon the above decision what it is contended that when the plaintiff has failed to make out his title and entitlement to possession, he cannot succeeded on alleged weakness in title or possession of defendants. He further by relying upon the above decisions contended that in the present case also there is very serious dispute about the identification of the property and that the Commissioner was appointed to identify the property, but he has failed to identify the disputed suit schedule property. When such being the case, the plaintiffs are not entitled for the reliefs as sought by them. So in view of his above written arguments and decisions he urged to answer issue No.4 and additional issue No.3 and 4 in the Negative and also to allow I.A.No.10 and to take appropriate action against the concerned official. 64 O.S.No.3828/1994
52. In the light of the written arguments filed by the respective counsels for the parties I have gone through the records and also the decisions as relied upon by the learned counsel for the defendants.
53. Admittedly this is a suit filed by the plaintiff for declaration, possession and injunction. As it is already stated above, earlier the present suit filed by the plaintiffs was decreed in part by this court by its judgment and decree dated 28/3/2006. The plaintiffs are declared as the owners of the suit schedule property, but the relief of possession and injunction sought by the plaintiffs was rejected by this court on the ground that the suit schedule properties are not identified. Being assailed by the judgment and decree passed by this court on 28/3/2006 the plaintiffs herein preferred RFA No.1429/2006 and defendants also preferred RFA cross objections No.2/2001. After hearing the counsels representing the parties, the Hon'ble High Court of Karnataka remanded the matter 65 O.S.No.3828/1994 directing this court to consider the matter afresh by appointing Commissioner by its order dated 9/12/2013. Upon perusal of the orders passed by the Hon'ble High Court of Karnataka in the above referred Writ Petition, it shows that the matter has been remanded by the Hon'ble High Court of Karnataka for limited purpose of identification of the suit schedule properties and if the said properties are identified in between site No.5 and 6 on the northern side, site No.15 and 16 on the southern side, 20 feet road on the eastern side and Bannerghatta road on the western side and if there exists 120 x 80 feet property as claimed by the plaintiffs and if the same is in possession of the defendants, the prayer of the plaintiffs for possession has to be granted or else the same is required to be dismissed. So also upon perusal of the orders passed by the Hon'ble High Court of Karnataka in the above referred Writ Petition it was observed by their lordship in para 10 of the order that "the identity of two properties cannot be identified by 66 O.S.No.3828/1994 the surveyor or Assistant Director of Land Records because the entire area has come within the purview of the Corporation city of Bengaluru and several buildings have come up. Hence the question of fixing the boundaries of survey number and locating sites claimed by each of them is not possible."
54. Though the Hon'ble High Court of Karnataka has made the above said observation in the Writ Petition as referred above, the learned counsel representing the plaintiff filed an application for appointment of surveyor as Court Commissioner after reminder of the matter to this court for fresh consideration and admittedly the said application was allowed by my learned Predecessor-in-office and Commissioner warrant was issued for the purpose of identification of property after directing both the parties to file their memo of instructions and required documents. So it can be said that against the observation made by the Hon'ble High Court of 67 O.S.No.3828/1994 Karnataka in the above said Writ Petition, the plaintiffs herein again filed application to appoint surveyor as Court Commissioner to identify the property.
55. So the only point to be considered here is that whether the report of the Commissioner would goes to show that he has identified the disputed properties and for the said purpose he has collected the required documents from the parties. Upon perusal of the records it shows that and also it is an undisputed fact that earlier one Court Commissioner was appointed, but he had returned the Commissioner warrant for want of sanction plan and the papers relating to the same are also in the file of the Commissioner. Inspite of that the plaintiffs have not furnished sanction plan relating to the suit schedule property, which is very much required to identify the suit schedule properties. So it can be said that when the required sanction plan is not at all furnished by the plaintiffs to the Commissioner, it is needles to say 68 O.S.No.3828/1994 that it would not be possible for him to identify the property in dispute. Upon perusal of the evidence of Court Commissioner, who has been examined before the court as CW1 wherein he has stated that the suit schedule properties are comes in Sy.No.53/4. The Court Commissioner though he stated like so in his evidence, but upon perusal of cross-examination it shows that he has not at all identified the suit schedule property and required materials for the purpose of identification of the suit schedule properties are not at all furnished to him by the plaintiff. When that would be the case, the say of the Court Commissioner that the suit schedule properties comes within Sy.No.53/4 cannot be accepted. At this juncture, it would be relevant to state the evidence given by the court Commissioner / CW1 during the course of his cross-examination at page No.2 which reads as under:
69 O.S.No.3828/1994
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56. So looking into the above evidence given by CW1 / Court Commissioner clearly shows that layout plan relating to the suit schedule property was not at all furnished by the plaintiffs to the Commissioner. So 75 O.S.No.3828/1994 also his evidence shows that no documents has been given to the Commissioner to show that site No.5 and 6 located on the northern side and site No.15 and 16 located on the southern side. So also the evidence given by the Commissioner clearly shows that he has not at all enquired the neighbours about the disputed properties. So also his evidence shows that on the northern side and southern side and on the eastern side buildings have come up. So from the perusal of the report submitted by the Commissioner it can be said that he has failed to identify site No.5 and 6 on the northern side and site No.15 and 16 on the southern side. So also his evidence clearly shows that there is 20 feet road on the eastern side after 80 feet and also there are no roads running from north to south. When that would be the case and when the Commissioner in his evidence clearly admitted that the sanction plan relating to the property in dispute is not at all furnished by the plaintiffs, it is needless to say that it is not possible for the Commissioner to identify 76 O.S.No.3828/1994 the property in dispute. So also the evidence on record shows that earlier the Commissioner has returned the Commissioner warrant for want of sanction plan relating to the suit schedule property, but inspite of that the plaintiffs have not furnished the same to CW1 and without the said required material documents the CW1 Commissioner has submitted a false report saying that the suit schedule properties are comes within Sy.No.53/4. When there is a serious dispute with regard to the identification of the suit schedule properties and though the Commissioner was appointed to identify and locate the disputed property and when the evidence on record clearly shows that he has failed to identify the disputed property, it is needless to say that the plaintiffs are not entitled for possession and the relief of injunction. In this regard the dictum laid down by their lordship in AIR 2003 Madras page 374 and another decision reported in 2008(4) KCCR page 2852 is aptly applicable to the present case in hand.
77 O.S.No.3828/1994
57. The evidence given by the Commissioner shows that he has not considered memo of instructions and the oral instructions given by the defendants at the spot, whereas he has considered the memo of instructions and the oral instructions given by the plaintiffs at the spot. The said aspect itself shows the Commissioner without considering the memo of instructions of the defendants and without the sanction plan relating to the suit schedule property he has conducted inspection and submitted his report by saying that the suit schedule properties, i.e., site No.5 and 6 and site No.15 and 16 are comes within Sy.No.53/4. Admittedly for the said conclusion no acceptable neither oral nor documentary evidence placed before the court by the Commissioner.
58. Upon perusal of the sketch produced by the Commissioner along with his report it shows that wherein he has stated that the portion shown with 78 O.S.No.3828/1994 yellow colour wherein the suit property is located and the same is coming within Sy.No.53/4B and 53/4C. So also upon perusal of the sketch produced along with the report it shows that wherein the Commissioner has stated that layout plan has not been given either by the plaintiffs or defendants to identify the disputed suit schedule properties. So also upon perusal of the sketch it shows that wherein the Commissioner has stated that he has identified the disputed suit schedule property as per the place shown by the plaintiffs and defendants he has identified the suit property. Admittedly the Commissioner was appointed in this case to identify the suit schedule properties where exactly it is located since the plaintiffs have failed to identify the suit schedule property. When that would be the case the say of the Commissioner as mentioned in the sketch he has identified the suit schedule property as per the place shown by the plaintiffs and defendants cannot be accepted. So upon perusal of the very sketch 79 O.S.No.3828/1994 produced by the Commissioner along with the report clearly goes to show that without acceptable material documents he has not identified these disputed suit schedule properties and he has identified the disputed suit schedule property as per the say of the plaintiffs and absolutely there is no acceptable materials how and on what basis he has identified the suit schedule properties. So also upon perusal of the report and sketch produced by the Commissioner clearly goes to show that he is not able to identify the 30 guntas of land purchased by Thukaram and also he is not able to identify from which point in Sy.No.53/4 Thukaram had formed sites. So also the very evidence given by the Commissioner shows that except the western side Bannerghatta road, he is not able to identify the boundaries of the suit schedule properties on the three sides. When things stood like so, it is needless to say that the evidence of the Commissioner and the report submitted by him is not helpful to the case of plaintiffs and his evidence clearly shows that he has failed to 80 O.S.No.3828/1994 identify the disputed suit schedule properties. When such being the case he is not entitled for possession of the suit schedule property.
59. The learned counsel for the defendants filed I.A.No.20 under section 151 C.P.C. to initiate necessary action against the concerned officials of this court, who had prepared and reissued Commissioner warrant on 15/10/2015 by striking out the contents in the Commissioner warrant by inserting fresh words in contravention of the orders dated 7/7/2014 passed by this court in pursuance of the judgment dated 9/12/2013 passed by the Hon'ble High Court of Karnataka in RFA No.1429/2006 connected with RFA Cross Objections No.2/2011. Upon perusal of the orders passed by the Hon'ble High Court of Karnataka in RFA No.1429/2006 c/w RFA CROB 2/2011 dated 9/12/2013 it shows that wherein it was observed by their lordship at para No.9 of the order that "Since the plaintiffs and defendants are trying to lay title under 81 O.S.No.3828/1994 different documents they fairly submit that the question of title need not be considered in this appeal and the parties would be satisfied if the relief sought for by the appellants - plaintiffs is considered by the trial court afresh by appointing court Commissioner in order to affix the boundaries as per schedule No.1 and 2 wherein it is stated that property schedule No.1 and 2 are situated in between site No.5 and 6 on the northern side and site No.15 and 16 on the southern side and western side by Bannerghatta road and on the eastern side, site No.20 feet road."
60. The Hon'ble High Court of Karnataka remanded the matter for limited purpose to identify the suit schedule property by appointing the Court Commissioner. The orders passed by the Hon'ble High Court of Karnataka in the above referred Regular First Appeal and the orders passed by this court on the application for appointment of Commissioner shows that it was ordered to identify the suit schedule No.1 82 O.S.No.3828/1994 and 2 whether situated in between site No.5 and 6 on the northern side and site No.15 and 16 on the southern side as stated above. But upon perusal of the Commissioner warrant issued by this court on 15/10/2015 it shows that the official who has written the said Commissioner warrant has written something and then put whitener on the same and again written to survey the land in Sy.No.53. As it is already stated above the Hon'ble High Court of Karnataka has remanded the present matter to this court only for the limited purpose of identifying the suit schedule properties, i.e., to say whether they are located in between site No.5 and 6 on the northern side and site No.15 and 16 on the southern side. When that would be the case and when absolutely there is no order by the Hon'ble High Court of Karnataka in the above referred RFA and the order passed by this court on the application for appointment of Commissioner to survey the land in Sy.No.53, how and why the official of this court by putting whitener inserted to survey the land 83 O.S.No.3828/1994 Sy.No.53 is required to be enquired. The very insertion to survey the land in Sy.No.53 by the official in the commission warrant dated 15/10/2015 shows that though there is no specific order either by this court or the Hon'ble High Court of Karnataka the official has done the said act. When that would be the case and when the officials of the court are in the habit of writing something other than the orders passed by the court, the matter is required to be viewed seriously and also the enquiry is required to be conducted why and under what circumstances the official has stated like so, as because the learned counsel for the defendant very seriously submitted about the high handed act of the official and also he has filed this application to take appropriate action against the concerned erring official. As it is already stated above admittedly quite contrary to the orders passed by this court and the Hon'ble High Court of Karnataka the official has written to survey the land in Sy.No.53 in the warrant dated 15/10/2015. When that would be the case, it 84 O.S.No.3828/1994 can be said that there is much force in the contention taken by the learned counsel for the defendant about the act of the officials in writing Commission warrant dated 15/10/2015. When that would be the case, it would be just and appropriate to direct the Registry of this court to make enquiry with regard to the alleged act of the concerned official as stated above in order to uphold the dignity of the Justice delivery system and also in the interest of justice and equity. In view of the above reasons this court is of the opinion that I.A.No.20 filed by the defendants is deserves to be allowed and accordingly it is allowed.
61. By considering the over all facts and circumstances of the case and in view of the discussions made above this court is of the opinion that the plaintiffs have failed to prove issue No.4 and additional issue No.3 and 4 and accordingly issue No.4 and additional issue No.3 and 4 are answered in the Negative.
85 O.S.No.3828/1994
62. Additional Issue No.2: As the plaintiffs have proved that they are the owners of the suit properties, as such, they are entitled for declaration and ownership in respect of the suit schedule properties though plaintiffs are not entitled for possession of the suit schedule properties from the defendants, as they have failed to prove that where exactly the said property is located and even the Commissioner appointed in this case also failed to identify where exactly the suit schedule properties are located. The defendant No.3 is claiming to be the adopted son of defendant No.1 and that he is entitled for share in the properties of defendant No.1 on the basis of the compromise decree in O.S.No.1203/1996 plaintiff has sought for consequential declaration of decree passed in O.S.No.1203/1996 is null and void.
63. The learned counsel for the plaintiff contended that the adoption of defendant No.3 by the 86 O.S.No.3828/1994 defendant No.1 when defendant No.3 was a major is null and void and that compromise decree in O.S.No.1203/1996 is a collusive decree and in support of his contention, he has relied upon the following decisions:
(1) AIR 1975 SC page 1102 (2) AIR 1990 Madras page 333 (3) AIR 1994 Bombay page 235
64. As defendant No.3 is claiming through defendant No.1 and he is not setting up any independent title, whether adoption is null and void on the ground of the defendant No.3 being more than 15 years of age at the time of adoption and whether the decree in O.S.No.1203/1996 is collusive does not assume much importance. As the plaintiffs are entitled for declaration of ownership against defendant No.1 the plaintiffs are also entitled for the same relief against defendant No.3 also. Hence this court is of the opinion that the plaintiffs are entitled for declaration 87 O.S.No.3828/1994 that they are the owners of the suit schedule properties against all the defendants. Accordingly additional issue No.2 is answered.
65. Issue No.3 and additional issue No.1: The plaintiffs have filed the present suit for declaration and possession on the basis of title. The learned counsel for the plaintiff has relied upon the following decisions:
(1) AIR 1990 Bombay page 1998 (2) AIR 1953 Patna page 283 (3) AIR 1976 Orissa page 43 (4) AIR 1991 Kar page 273
66. In a decision reported in AIR 1991 Kar page 273 it was held by their lordship that "if the suit is for declaration simplicitor only article 58 of Limitation Act is applicable and if possession is sought for then article 58 will not be applicable and only article 65 will be attracted. In the present case the plaintiffs have 88 O.S.No.3828/1994 sought for not only declaration but also possession based on title and permanent injunction.
67. In another decision reported in AIR 1990 Bombay page 1998 wherein it was held by their lordship that "when main relief is for possession while declaration was not necessary, suit can be filed within 12 years."
68. Further there was litigation between plaintiffs and defendants earlier. Hence the suit for declaration and possession is not barred by limitation. Accordingly issue No.3 and additional issue No.1 are answered in the Negative.
69. Issue No.2: The plaintiffs have valued the suit properties at Rs.2,00,000/- each, in all Rs.4,00,000/- and have paid court fee of Rs.26,900/-. Perusal of Ex.P3 the plaint in O.S.No.1203/1996 filed 89 O.S.No.3828/1994 by defendant No.3 against defendant No.1 and 2 show that property measuring 140 x 30 = 4200 sq.ft. and the suit has been valued as Rs.Rs.2,50,000/-. In the present case the suit property measures in all 9,600/- sq.ft. at Rs.4,00,000/-. The suit is filed in 1994, whereas O.S.No.1203/96 has been filed in 1996. Hence it cannot be said that the suit is not properly valued and proper court fee is not paid. In view of the above reasons issue No.2 is answered in the Negative.
70. Issue No.5: The learned counsel for the defendant contended that the plaintiffs cannot file this suit in respect of two properties and the suit is bad for mis-joinder of parties and causes of action. In a decision reported in AIR 1990 Patna page 95, wherein it was held by their lordship that "when two or more plaintiffs are jointly interested in two or more causes of action against the same defendant, they can join all the causes of action in the same suit."
90 O.S.No.3828/1994
71. In another decision reported in AIR 2000 H.P. page 48, wherein it was held by their lordship that "Order 23 Rule 3 proves that the plaintiff may unite in one suit several causes of action."
72. In the present suit the cause of action for both the plaintiffs against the defendants is common and the source of title is common, as such, the suit of the plaintiffs is not bad for mis-joinder of parties or causes of action. In the result I proceed to pass the following:
ORDER The suit of the plaintiff is hereby decreed in part.
The plaintiff No.1 is declared to be the owner of the 1st schedule property and the 2nd 91 O.S.No.3828/1994 plaintiff is declared as the owner of the 2nd schedule property.
So far as the prayer of plaintiffs for possession of the suit schedule properties from the defendants and prayer for permanent injunction are hereby rejected.
I.A.No.20 filed by the defendants under section 151 C.P.C. is allowed. The Registry is directed to enquire with regard to the allegation made by the defendants counsel against the concerned official as observed in the body of the judgment and take appropriate action.
No order as to cost.
Draw decree accordingly.
(Dictated to the Judgment-Writer, transcribed, computerized and printout taken by her, revised and then pronounced by me in open Court on this the 1st day of July 2017).
(Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.92 O.S.No.3828/1994
ANNEXURE Witnesses examined for the plaintiff:
PW1 : R.Prakash PW2 : Anand Kumar
Witnesses examined for the defendant:
DW1 : T.Krishnappa DW2 : V.Krishnaiah
Documents marked for the plaintiff:
Ex.P1 : Power of attorney
Ex.P2 : Power of attorney
Ex.P3 : Sale deed
Ex.P4 : Sale deed
Ex.P5 : Tax paid receipt
Ex.P6 : Tax paid receipt
Ex.P7 : Tax paid receipt
Ex.P8 : Tax paid receipt
Ex.P9 : Tax paid receipt
Ex.P10 : Tax paid receipt
Ex.P11 : Copy of complaint
Ex.P12 : Copy of complaint
Ex.P13 : Endorsement
Ex.P14 : Copy of legal notice
93 O.S.No.3828/1994
Ex.P15 : Copy of notice
Ex.P16 : Reply
Ex.P17 : Reply
Ex.P18 : Certified copy of sale deed
Ex.P19 : Certified copy of sale deed
Ex.P20 : Certified copy of registered sale deed Ex.P21 : Certified copy of registered sale deed Ex.P22 : Certified copy of sale deed Ex.P23 : Certified copy of decree in O.S.No.1203/96 Ex.P24 : Copy of orders Ex.P25 : Copy of orders Ex.P26 : Certified copy of order of W.P.20308/99 Ex.P27 : Certified copy of order sheet Ex.P28 : Copy of memo Marked through DW1 on 16/1/2004 Ex.P29 : Certified copy of school hearing certificate of D3 Ex.P30 : Seal Ex.P31 : Endorsement on reverse page of Ex.D5 Marked through DW1 on 30/1/2014 Ex.P32 : Xerox copy of order sheet in O.S.No.1203/06 Ex.P33 : Xerox copy of compromise petition 94 O.S.No.3828/1994 Ex.P34 : Certified Xerox copy of plaint in O.S.No.3237/86 Ex.P35 : Certified Xerox copy of Vakalath in O.S.No.3237/86 Ex.P36,37 : Xerox copy of written statement in O.S.No.1107/87 Ex.P38 : Xerox copy of vakalath in O.S.No.1107/87 Marked through DW1 on 30/8/2014 Ex.P39 : Signatures which are on Ex.D3 to Ex.P42 Ex.P43 : Certified copies of sale deeds to Ex.P51 :
Ex.P52 : Certified copy of memo of D1 filed in O.S.No.3237/86 Ex.P53 : Certified copy of plaint, written to statement, order sheet, vakalath in Ex.P56 O.S.No.4503/96 Documents marked for the defendant:
Ex.D1 : Original sale deed Ex.D2 : Sale deed of Subba Rao Ex.D3 : Sale deed of Thukaram 95 O.S.No.3828/1994 Ex.D4 : Certified copy of sale deed of Muniswamappa Ex.D5 : Agreement of sale Ex.D5(a) (b) : Signatures of Thukaram Ex.D6 : Certified copy of order sheet Ex.D7 : Plaint copy Ex.D8 : T.T.Line receipt Ex.D9 : Betterment charges receipt Ex.D10 : Notice Ex.D11 : Encumbrance certificate Ex.D12 : Copy of order passed by Tahsildar Ex.D13 : Notice Ex.D14 to Ex.D22 : 9 photos Ex.D14(a) to Ex.D22(a) : Negatives Ex.D23 : Receipt Ex.D24 : Receipt Ex.D25 : Ration card Ex.D26 : Election ID Card Ex.D27 : Certificate Ex.D28 : Certified copy of RTC extracts to Ex.D30 96 O.S.No.3828/1994
Ex.D31 : Certified copy of Hissa Tippani extract Ex.D32 : Certified copy of atlas of Sy.No.53/4 Ex.D33 : Certified copy of kharab uthar extract Ex.D34 : Certified copy of Revision settlement of Akarbandh (Sadananda M. Doddamani) XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE 97 O.S.No.3828/1994 Judgment pronounced in open court (vide separate detailed order) with the following operative portion:-
ORDER The suit of the plaintiff is hereby decreed in part.
The plaintiff No.1 is declared to be the owner of the 1st schedule property and the 2nd plaintiff is declared as the owner of the 2nd schedule property.
So far as the prayer of plaintiffs for possession of the suit schedule properties from the defendants and prayer for permanent injunction are hereby rejected.98 O.S.No.3828/1994
I.A.No.20 filed by the defendants under section 151 C.P.C. is allowed. The Registry is directed to enquire with regard to the allegation made by the defendants counsel against the concerned official as observed in the body of the judgment and take appropriate action.
No order as to cost.
Draw decree accordingly.
XXV ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.99 O.S.No.3828/1994 100 O.S.No.3828/1994