Karnataka High Court
B. Krishnappa vs The Bangalore Development Authority on 19 February, 2014
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.F.A.No.1003/2011 (INJ)
BETWEEN:
B.Krishnappa,
S/o late Balaiah,
Major,
R/o No.232, 18th Cross,
31st Main, 6th Phase,
J.P.Nagar, Sarakki,
Bangalore - 560 070. ... Appellant
(By Sri R.S.Ravi, Advocate)
AND:
The Bangalore Development Authority,
Sankey Road, Bangalore - 560 001.
Represented by its Commissioner. ... Respondent
(By Sri A.M.Vijay, Advocate)
This Regular First Appeal is filed under Section 96 of the
CPC against the judgment and decree dated 1.4.2011 passed in
O.S.No.7961/2002 on the file of the IX Additional City Civil and
Sessions Judge, Bangalore, dismissing the suit for permanent
injunction.
This Regular First Appeal coming on for Admission this
day, the Court delivered the following:
2
JUDGMENT
This appeal is preferred by the plaintiff against the judgment and decree, dated 1.4.2011 passed by the Court of the IX Additional City Civil and Sessions Judge, Bangalore (CCH-5) in O.S.No.7961/2002.
2. The facts of the case in brief are that the appellant - plaintiff claims that the site No.232, Sarakki, 6th Phase was allotted to him by the Bangalore Development Authority ('BDA' for short). He claims that the possession certificate, the lease- cum-sale agreement were also issued to him. He claims that he has got the khatha changed in his favour and that he has been paying the property tax. He also claims that he has erected the building after obtaining the plan sanctioned by the concerned authorities. It is his further case that he lost the original documents. When he approached the officials of the respondent BDA, they informed that the documents being relied upon by the appellant - plaintiff are not genuine documents. As the BDA was not coming forward to execute the absolute sale deed in his favour, he filed the suit seeking the relief that he be declared as the original allottee and the absolute owner of the suit schedule property by virtue of the allotment. He also sought permanent 3 injunction restraining the respondent from interfering in his peaceful possession of the suit schedule property and also the mandatory injunction to the BDA to execute the registered sale deed in his favour. The respondent filed the written statement taking objection to the appellant not furnishing the details regarding the number of attempts made to secure the allotment, particulars of the application, registration card, etc. The respondent took the stand that the documents on the basis of which the suit is filed are all cooked up documents. It was alleged that the appellant played the fraud. On noticing the fraud, it filed Criminal Case No.18107/2003.
3. Based on the rival pleadings, the Trial Court formulated the following issues:
1. Whether the plaintiff proves that he is the original allottee of the suit schedule property and as such he is the absolute owner of the same by virtue of allotment?
2. Whether the plaintiff proves his lawful possession and enjoyment over the suit schedule property as on the date of suit?
3. Whether the plaintiff proves the alleged interference of defendant in his possession over the suit schedule property?4
4. Whether plaintiff is entitled for the relief of permanent injunction against defendant as prayed?
5. Whether plaintiff is entitled for the mandatory injunction to direct the defendant to execute the sale deed in his name as prayed?
6. Whether plaintiff is entitled for declaratory relief as prayed?
7. Whether defendant proves that plaintiff has played fraud on it and got up some documents by making false claim over the suit schedule property?
8. What decree or order?
4. The appellant got himself examined as PW1 marking the documents at Ex.P1 to Ex.P41. On behalf of the respondent, its Deputy Secretary-II Dr.Mahesh was examined as DW1. No documents came to be marked for the respondent. On examining the pleadings, oral and documentary evidence placed on its record, the Trial Court answered the issues against the appellant and dismissed the suit. Aggrieved by the same, this appeal is filed by the plaintiff.
5. Sri R.S.Ravi, the learned counsel for the appellant submits that the Trial Court has erred by not giving any 5 weightage to the findings delivered by the Criminal Court in C.C.No.18107/2003. In support of his submission, he read out the portion below the Head Note of the Hon'ble Supreme Court's decision in the case of SETH RAMDAYAL JAT v. LAXMI PRASAD reported in AIR 2009 SC 2463. It reads as follows:
"Save and except for Section 43 of the Indian Evidence Act which refers to Sections 40, 41 and 42 thereof, a judgment of a criminal Court shall not be admissible in a civil suit. What, however, would be admissible is the admission made by a party in a previous proceeding.
In the instant case the respondent filed a civil suit against the appellant for recovery of certain items of jewellery allegedly pledged with him for the purpose of obtaining loan. On the premise that the appellant had violated the provisions of the Madhya Pradesh. Money Lenders Act, 1934 in relation to the aforementioned grant of loan, a criminal proceeding was initiated against him. In the said criminal case, he admitted his guilt. A fine was imposed on him. The admission of the appellant was recorded in writing. While he was deposing in the suit, he was confronted with the question as to whether he had admitted his guilt and pleaded guilty of the charges framed. He did so.
Held that the appellant having accepted that he had made an admission in the criminal case, the same was admissible in evidence. He could have resiled therefrom 6 or explained away his admission. In view of S.78 there could not be any doubt or dispute that a thing admitted need not be proved. Although the judgment in a criminal case was not relevant in evidence for the purpose of proving his liability, his admission in the civil suit was admissible. The question as to whether the explanation offered by him regarding his admission in criminal case should be accepted or not was a matter which would fall within the realm of appreciation of evidence."
6. In the said case, the Criminal Court delivered a categorical finding that the respondent has failed to prove that any document is forged by the appellant. He also takes exception to the respondent not giving any particulars of the alleged fraud. In the absence of specific pleadings, the allegation of fraud is not proved. He read out the provisions contained in Order VI Rule 4 of the CPC in this regard. They are extracted hereinbelow:
"4. Particulars to be given where necessary. - In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."7
7. On being asked as to why the order (Ex.P41) cancelling the lease-cum-sale agreement in favour of the appellant is not challenged, he submits that the larger relief of declaration that the appellant is the owner is sought. He further submits that the courts can always mould the relief, even if it is not specifically prayed. In support of his submission, he relies on the Division Bench judgment of Andhra Pradesh High Court in the case of GOVT. OF THE STATE OF ORISSA, BHUBANESHWAR v. JALDU RAMA RAO AND COMPANY, MACHILIPATNAM reported in AIR 1983 ANDHRA PRADESH 214. The relevant portion of the said reported decision relied upon by him are extracted hereinbelow:
"5......................
In Vemareddy Ramaraghava v. Konduru Seshu, AIR 1967 SC 436 the Supreme Court held that S.42 of the Specific Relief Act is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements of the section. Similar view was taken in the decision in Supreme General Films Exchange Ltd. v. Brijnath Singhji, AIR 1975 SC 1810 wherein it was held that the Court is competent to grant declarations in appropriate cases falling outside Sec.42 of the Specific Relief Act. In Mahabir Jute Mills v. Firm Kedar Nath a suit was filed for a declaration that the contract between the 8 parties does not subsist and the plaintiff on that account is not liable for damages for breach of contract. It was held that the right must relate to legal character or right to any property and the declaration that the plaintiff has not incurred any pecuniary liability cannot be equated to an adjudication about legal character or right to property. The connotation of expression 'legal character' in Sec.42 of the Specific Relief At was considered and it was held that the legal character is equivalent to legal status and does not contemplate declarations about the pecuniary liability of persons.
The principles that emerge from the above decision can be summed up. The bare declaratory relief touching the contractual right not accompanied by a consequential relief is barred under S.42 (old) and Sec.34 (present) of the Specific Relief Act and the bare declaratory relief can be granted if it constitutes relief in the nature of legal right or right to property. Sec.34 of the Specific Relief Act is not exhaustive of all the circumstances and recourse to O.7 R.7 C.P.C. is not excluded in appropriate cases."
8. He submits that the Trial Court has not relied on Ex.P1 on the ground that it is not complete in all the respects. The appellant has therefore produced the full version of Ex.P1 along with I.A.No.1/2014 for the production of additional documents. The learned counsel submits that the Trial Court has not paid any attention to the payment of the sital value by the appellant, 9 as evidenced by the challans at Ex.P15 to Ex.P18. The Trial Court has not given any weightage to the tax-paid receipts at Ex.P4 and Ex.P5. The encumbrance certificates at Ex.P6 to Ex.P8, Ex.P13 and Ex.P14 have also not been considered by the Trial Court is the further grievance of the appellant. The learned counsel submits that all the documents relied upon by the appellant are all public documents and are admissible under Section 35 of the Indian Evidence Act, 1872.
9. Sri A.M.Vijay, the learned counsel for the respondent submits that the police complaint at Ex.P2 in respect of the loss of original documents is vague. He submits that the complaint does not even state which are the documents which are lost. It does not state on which date he has lost them. He submits that on detecting that the fraud has taken place, the police complaint (Ex.P30) is filed by the respondent BDA. He submits that just within one month from the date of the respondent's filing the police complaint, the appellant has filed the suit. According to him, the suit is only a counter blast.
10. The submissions of the learned counsel have received my thoughtful consideration. The first question that falls for my 10 consideration is whether the appellant is entitled to the execution of the registered sale deed. My emphatic answer is 'no' for the following reasons:
(a) The appellant has not furnished the particulars of his application for the allotment of sites. It is not that the BDA allots the sites suo motu. The BDA issues the notification calling for the application for the allotment of sites. The eligible and needy ones would respond to the notification by filing the application. Based on their seniority, the allotment would be made. In the instant case, the appellant is silent on when he has filed the application and in response to which notification.
(b) The appellant has not challenged the cancellation deed (Ex.P41). The question of declaring him as the owner of the suit schedule property or treating him as the original allottee would arise only, if the cancellation order is held to be bad. There is no doubt that the Court can mould the relief in a given case. But that does not mean that in a case of this nature, the cancellation order can be held to be bad even in the absence of any challenge to the same 11
11. The second question that falls for my consideration is if the materials placed on the record are re-examined and re- appreciated, whether it is possible to arrive at a conclusion different than the one arrived at by the Trial Court.
12. The payment of amounts evidenced by the challans at Ex.P15 to Ex.P18 do not ipso facto entitle the appellant for the execution of the sale deed. The payment of sital value would be relevant only if the authorities have made a demand for the payment based on the application and its acceptance. The tax- paid receipts at Ex.P4 and Ex.P5 and the encumbrance certificates at Ex.P6 to Ex.P8, Ex.P13 and Ex.P14 also cannot come to the rescue of the appellant in any way. Yet another circumstance of the case, which cannot go unnoticed, is that admittedly the lease period contemplated in the lease-cum-sale agreement is 10 years. When the lease-cum-sale agreement (Ex.P1) bears the date 28.2.1985, the normal conduct of any allottee would be to press for the execution of the sale deed immediately after the expiry of the lease period. In the instant case, no explanation is forthcoming as to why the appellant kept quiet for a long period of 15 years between 1985 and 2000. 12
13. I also find that the appellant's version is self- contradictory. As per the police complaint at Ex.P2, he has lost the documents some times in the first week of May 2000. But in one of his representations submitted to the respondent, he submits that the documents were lost in 1987 itself.
14. I am also not persuaded to grant any relief to the appellant based on his acquittal in the criminal proceedings. It is trite that the higher degree of proof is required in the criminal proceedings. Just because the Criminal Court has come to the conclusion that the respondent has failed to establish that the documents are forged by the appellant, it does not mean that the appellant is a bonafide registrant with the BDA for the allotment of sites.
15. For all the aforesaid reasons, I dismiss this appeal. No order as to costs.
Sd/-
JUDGE MD