Bangalore District Court
Sri. Rupen Patel vs M/S Gopalan Enterprises on 26 April, 2019
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. H. CHANNEGOWDA, B.Sc., LL.B.,
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 26TH DAY OF APRIL 2019
OS.NO.1440 / 2009
PLAINTIFF/S SRI. RUPEN PATEL
S/O P.A. PATEL
RPRESENTED BY P.A. HOLDER
PRAKASH BABU
S/O GURUNATH RAO
No.3-6-739/2, LANE No.12,
HIMAYAT NAGAR, HYDERABAD.
(By M/s Lex Nexus, Adv.)
Versus
DEFENDANT/S M/S GOPALAN ENTERPRISES
(INDIA) PVT. LTD. A COMPANY
INCORPORATED UNDER THE
COMPANIES ACT, 1956, HAVING ITS
REGITERED OFFICE No. 5,
RICHMOND ROAD, BANGALORE -
560 025.
( By M/S Chalapathy & Srinivas)
Date of Institution of the 26.02.2009
suit
Nature of the suit. Suit for permanent
injunction.
Date of commencement of 14.02.2011
recording of evidence.
2 O.S.No.1440 / 2009
Date on which judgment 26.04.2019
was pronounced.
Total Duration. Years Months Days
10 02 00
XXXVII ACCJ, BANGALORE
3 O.S.No.1440 / 2009
JUDGMENT
The plaintiff has filed suit against the defendant for for the relief of perpetual injunction restraining the defendant, their agents, their henchmen or anybody claming through or under them from interfering with the plaintiff's peaceful possession and enjoyment of the schedule property along with costs of the suit.
2. In brief the case of the plaintiff is as under:
3. The property bearing Sy.No. 146 of Hoodi village, K.R. Puram Hobli, Bangalore East Taluk (formerly South Taluk) measures a total extent of 26 acres 13 guntas. 8 acres of land in Sy.No. 146 was granted in favour of R. Muniswamy Reddy S/o Ramaiah Reddy, vide Grant order No 39 LND & R152/60-61 on payment of an upset price of Rs100/- per acre. Amount of Rs.920/- was paid on 08.03.1961 as per SLR 270 dated 06.02.1961. Consequent upon which, the Saguvali Chit was issued in favour of Muniswamy Reddy. The said Muniswamy Reddy died on 01.08.1971. The estate was succeeded by Smt. Nagarathna Reddy and Sri. Srinivasa Reddy. The RTC extracts pertaining to Sy.No. 146 4 O.S.No.1440 / 2009 to the extent of 8 acres has been reflected thereafter. In fact the entries in the RTC from the year 1967-68 reflects the name of R. Muniswamy Reddy to an extent of 8 acres upto 1988-89 and thereafter the names of Smt. Nagarathna Reddy and Sri. Srinivas Reddy have been reflected. For the year 1992-93 to 1997-98 the entries in the RTC pertaining to Sy.No. 146 was made into the portions. In the RTC pertaining to Sy.No. 146 for an extent of 12 acres, the name of Surendranath for 4 acres, Dwarakanath for 4 acres and Nagaraj for 4 acres was sown and it was endorsed on the said RTC that the remaining portion of Sy.No. 146 is at page 511. For the remaining portion 8 acres was shown in the name of R. Muniswamy Reddy which was rounded off and the name of Smt. Nagarathna Reddy and Sri. Srinivas Reddy are reflected pursuant to IHC 1/96-97. From the year 1995-96, the names of Surendranath, Dwarakanath and Nagaraj are rounded of and the name of KIADB is entered as per M.R. No. 18/93-94 pursuant to the final notification regarding acquisition of the lands belonging to Surendranath, Dwarakanath and Nagaraj. Accordingly, the RTC for Sy.No. 146 has been continued for 8 acre from the 5 O.S.No.1440 / 2009 year 1992-93. Even though the entries had been made as per IHC 1/96-97, the entries were not continued for some time as a result of the same Sri. Nagarathna Reddy and Sri. Srinivas Reddy had approached the Assistant Commissioner in R.A. No. 360/04-05./ The appeal was allowed and by an order dated 11.04.2004, it was directed that the Katha had to be made out in the names of Smt. Nagarathna Reddy and Sri. Srinivasa Reddy and accordingly, their names were entered as per M.R. No. 66/04-05 dated 15.03.2005 for the said extent of 8 acres.
4. Further it is alleged that for the year 2002-03, as per M.R. No. 54/02-03, the names of Smt. Nagarathna Reddy and Sri. Srinivas Reddy had been removed which prompted them to file a writ petition in W.P. No. 42890 / 02-03 before the Hon'ble High Court. The said writ petition came to be disposed by an order dated 01.09.2004 in which the KIADB made a specific statement that the land of Sri.. Nagarathna Reddy and Sri. Srinivas Reddy was not acquired and no final notification was issued. As per the order of the Special 6 O.S.No.1440 / 2009 Deputy Commissioner, this authority had to submit a report as per letter No.LND (s) CR736/05-906 dated 26.02.2006.
5. Further it is stated that as per sketch drawn by the Taluka Surveyor, Bangalore East Taluk the land of Smt. Nagarathna and Sri. Srinivasa Reddy was in no way connected, if the land was acquired by the KIADB measuring 14 acres 13 guntas.
6. Further it is alleged that as per the preliminary notification published under Section 28 (1) of the KIADB Act, 1966 dated 13.09.1984 is clearly shown in Sl.No.12 that the land which was acquired was the land of Surendranath, Ravindranath, DWarakanath and Vasundramma. Even the final notification which was passed in the year 1993 under Section 28 (4) of the KIADB Act, indicates that the property was that of Surendranath and others as shown in preliminary notification. Subsequently, another notification was passed on 24.11.1999 in CI 200 SPQ 98 proposing to acquire 8 acres of land ofSmt. Nagarathna Reddy and Sri. Srinivas Reddy. 7 O.S.No.1440 / 2009 Pursuant to the request made by the Special Land Acquisition officer, KIADB, requesting the Spl. Deputy Commissioner to submit a report regarding the genuiness of the grant and the possession of Smt. Nagarathna Reddy and Sri. Srinivasa Reddy in respect of the said 8 acres of land, based on the report of the Revenue Inspector referred to supra and the survey sketch drawn by the Taluka Surveyor, this authority has identified that 8 acres of land does not come within the purview of the land acquired by the KIADB as per the notification of the year 1993. This is again demonstrated from the subsequent notification of the KIADB under Section 28 (1) which clearly discloses that this 8 acres situated towards western side of the land which has already been acquired by the KIADB.
7. Further it is alleged that he purchased 8 acres of land (suit schedule property) within the said extent of 6 acres of land under the registered sale deed dated 05.09.2006. It appears that nothing has been communicated from the jurisdictional Sub-Registrar's office to the Revenue Authorities in respect of the registering Katha pursuant to 8 O.S.No.1440 / 2009 the sale in as much as the katha stood in the name of the vendors right from the year 1967-68 subsequently mutated as per IHC.1/94-95 and the error removed in R.A. No.68/07-08 and corrected as per M.R. No.66/04-05.
8. Further it is alleged that when such being the situation, when the change of entry was sought for by the plaintiff was objected by the Mr. Sridharan and therefore, the dispute was registered with the Tahsildar as dispute No. RRT (DIS)120/06-07. No enquiry was conducted, but the Tahsildar appears to have taken a suo-moto survey which was beyond his jurisdiction and on the basis of his own survey and contrary to the earlier documents from the very office had directed katha to be registered in the name of the said Mr.Sridharan. This order was called in question before the Assistant Commissioner, Bangalore East Taluk in R.A. No.68 / 2007-08. However, the Assistant Commissioner has dismissed the appeal by an order dated 11.07.2008.
9. Further it is alleged that the plaintiff aggrieved by the orders passed by the Tahsildar in dispute No. 120/06-07 as 9 O.S.No.1440 / 2009 confirmed by the Deputy Commissioner in R.A. No. 68/07- 08 had preferred a Revision Petition in Revn. Petition No.42/08-09. The Revision Petition is pending for consideration. However, another Revision Petition filed by one Mr. Rupen Patel, another purchaser from Srinivasa Reddy and Nagarathna Reddy was allowed by setting aside the orders passed by the Asst. Commissioner and the Tahsildar on the ground that the land had already been converted by the said Sridharan and there were also disputes regarding the title as well as the possession of the properties claimed by them. However, the Deputy Commissioner had made certain observations about the identity, location of the property of Smt. Nagarathna Reddy and Sri. Srinivas Reddy which were much contrary to the records of the KIADB itself. In view of the nature of disputes and the said Sridharan, now represented by his L.R. denying the title to the property owned and possessed by the plaintiff being the schedule property, the plaintiff is left with no other alternative but to seek for the relief sought for. 10 O.S.No.1440 / 2009
10. Further it is alleged that on the basis of the revenue proceedings and certain manipulated records obtained from the KIADB, the 2nd defendant appears to have approached the SEZ authorities and have managed to obtain a letter of approval by including the property of the plaintiff and which basis, the 2nd defendant along with his workmen and henchmen came near the schedule property on 22.02.2009 and started dumping construction materials and hastily undertook some construction works in attempting to put up a compound wall and with the timely information to him, he had gone to the spot and thwarted such attempts.
11. Further it is alleged that, he is the absolute owner in possession and enjoyment of the suit schedule property and the defendants have no manner of right, title and interest over the schedule property.
12. According to the plaintiff, the cause of action for the suit arose when the Deputy Commissioner had by an order dated 22.12.2008 allowed the Revision Petition with observations and subsequently, when the defendants had 11 O.S.No.1440 / 2009 managed to get an order of approval through the SEZ authorities and on which basis, on 22.02.2009, when they attempted to interfere with his peaceful possession and enjoyment of in respect of the schedule property and on all dates as to threat of dispossession and interference with the possession continues, within the jurisdiction of this Court.
Mainly among these grounds it is prayed to decree the suit as prayed.
13. After the service of summons, the defendant entered appearance through his counsel and filed his written statement.
14. In the written statement the defendant has denied the averments of the plaint as false and untenable and called upon the plaintiff for strict proof of the same.
15. In the written statement the defendant has contended that out of the total extent of 26 acres 13 guntas in Sy.No. 146 of Hoodi Village, 13 acres 33 guntas of land was acquired by the KIADB belong to the Government only and 12 O.S.No.1440 / 2009 it is shown as 'Sarakari Mufat Kaval and the compensation has not been paid to any person to whomsoever. If 13 acres and 33 guntas acquired by KIADB is deducted from the total extent of land, what is left is only 12 acres 20 guntas. Out of this 12 acres 20 guntas, 20 guntas constitute burial land / graveyard. Then what is left is only 12 acres of land.
16. Further it is contended that, in the year 1945, the total extent of 26 acre and 13 guntas of land bearing Sy.No. 146 was divided into five blocks. Four blocks containing 5 acres each and 5th block containing 6 acres 13 guntas. They were sold by public auction at an upset price and was purchased by one H.V. Nagappa Reddy. Certain villagers of Hoodi Village by name Krishnappa Reddy and others challenged the said sale. The said Nagappa Reddy sold the lands so purchased by him to several persons by name H.D.Nagappa Reddy, H.V. Papaiah Reddy, Smt. Parvathamma and B. Muniswamy Reddy. Certain villagers of Hoodi Village by name Krishnappa Reddy and others challenged the auction sale in favour of H.Y. Nagappa Reddy and the said order was confirmed by the revenue 13 O.S.No.1440 / 2009 commissioner. The four persons stated above who had purchased the land from H.D. Nagappa Reddy filed an appeal to the Government in R.A. No. 350/1951-52. The Government by its order dated 09.03.1953 while confirming the cancellation of sale in favour of H.D. Nagappa Reddy granted to each of the appellants namely the above said four persons 3 acres of land in the said Sy.No. for an upset price of Rs.25/- per acre. Only 12 acres of land in Sy.No. 146 was granted to H.D. Nagappa Reddy, H.V. Papaiah Reddy, Smt. Parvathamma and B. Muniswamy Reddy. When once it is accepted that 13 acres 33 guntas was acquired by KIADB, 12 acres was granted to the aforesaid persons by the Government order and 1 acre 20 guntas is the graveyard, no other land could have been granted to R. Muniswamy Reddy as contended by the plaintiff. No other land was available for being granted to R. Muniswamy Reddy.
17. Further it is contended that as per the extract of Saguvali Chit register relying upon by the plaintiff an extent of 8 acres was granted to R.Muniswamy Reddy under Government order No. RD 26 LBD 60 dated 22.12.1960. 14 O.S.No.1440 / 2009 The defendants applied to the Government of Karnataka under Right to Information Act, to grant them certified copy of the said Government order. They received an endorsement from the Government to the effect that there is no such Government order. Thus the extract of Saguvali chit register produced by the plaintiff as also government order referred to therein are bogus and concocted documents and no reliance can be placed on them. Any other entries in all the revenue records said to have come into existence on the basis of the grant are also bogus and concocted documents since there is no grant at all and the entry in the saguvali chit is bogus and also the Government order is concocted.
18. Further it is contended that the plaintiff along with R. Ramesh Babu, plaintiff in the connected suit has filed a writ petition in W.P. No.4848 / 2009 and 4998 / 2009 before the Hon'ble High Court seeking quashing of an order passed by the Government of India in favour of the defendant issuing a notification that a lands owned by the defendant which includes the suit schedule property constitutes Special Economic Zone. In the said writ petition the plaintiff relied 15 O.S.No.1440 / 2009 upon a letter dated 13.12.2001 addressed by the Special Deputy Commissioner, KIADB to Special Deputy Commissioner, Bangalore District, Bangalore. As per the said letter H.V. Nagappa Reddy, H.V. Papaiah Reddy, B. Muniswamy Reddy and Smt. Parvathamma were granted 3 acres of land each in the land bearing Sy.No. 146 as per Government order and thereafter on 22.08.1955, the Tahsildar, Bangalore South Taluk granted to each of them Saguvali chits. Even in the said letter, there is no reference to any grant made to R. Muniswamy Reddy since no land was granted to him at all. The said letter shows that R. Muniswamy Reddy purchased only 12 acres of land and even the said 12 acres were partitioned by his 1st wife Smt. Padmavathamma and her 3 sons. In the circumstances, there was no grant of any land to R.Muniswamy Reddy and even if he has purchased 12 acres as stated in the said letter, the said 12 acres has been partitioned by his first wife and her 3 sons and therefore, it is not open to the plaintiff to claim that 8 acres of land was granted to R. Muniswamy Reddy and upon his death, it was inherited by plaintiff's vendors Nagappa Reddy and Srinivasa Reddy and by virtue 16 O.S.No.1440 / 2009 of sale in his favour, he became the owner of the suit schedule property.
19. Further it is contended that the vendors of the plaintiff in connivance with the revenue officials got the revenue bogus entries made in the RTC extracts is also evident from other circumstance. Bogus and fictitious entries were made in the revenue records and the plaintiff and his vendors are only basing their claim on such bogus and fictitious and false entries made in the revenue records.
20. Further it is contended that as admitted in the plaint, KIADB notified an extent of 13 acres 33 guntas for acquisition in land bearing Sy.No. 146. In the said notification, the names of M. Surendranath, Dwarakanth, Ravindranath and Smt. Vasundaramma are shown as owners of the land. One of the contentions raised by the plaintiff in this suit is that the land of the said four persons have been acquired and as such late Sridharan could not have purchased four acres of land from Surendranath. However, the name of the said persons were 17 O.S.No.1440 / 2009 notified by KIADB because their names were shown in the RTCs.
21. Further it is contended that, subsequently, the KIADB found that the land in respect of which notification under Section 28 (4) has been issued is neither owned nor possessed by the above said four persons. It was also found out that while the land bearing Sy.No. 146 notified for acquisition is in the eastern portion, the land owned by Surendranath and others is in the western side of Sy.No.
146. Consequently, their names as owners of land were deleted and no compensation was paid to them. In the circumstances, it is not open to the plaintiff to contend that the land purchased by late Sridharan from Surendranath has been acquired by KIADB and as such he does not own any land in Sy.No. 146.
22. Further it is contended that, after KIADB issued a final notification dated 28.04.1993 under Section 28 (4) of the KIADB Act in respect of 13 acres 33 guntas of land in Sy.No. 146, Sri. Nagarathna Reddy and Srinivasa Reddy filed a suit 18 O.S.No.1440 / 2009 against KIADB in O.S. No.6582/1997 on the file of the City Civil Judge, Bangalore City seeking an injunction against KIADB to restrain them from interfering with their alleged possession and enjoyment of the property on the ground that 8 acres of land was granted to their father R. Muniswamy Reddy and after his death they are in possession of the same.
23. Further it is contended that having regard to the claims made by the said Nagarathna Reddy and Srinivasa Reddy, a joint survey of land bearing Sy.No. 146 was carried out and KIADB prepared a sketch of the entire land bearing Sy.No. 146 and the said sketch showed the land that was notified by them for acquisition and the land which the said Nagarathna Reddy and Srinivasa Reddy claimed as being the owners and possessed by them. As per the sketch prepared by the KIADB, 8 acres of land as claimed by Nagarathna Reddy and Srinivasa Reddy is marked as ABCD in the plan / sketch. The said portion which they claimed forms the eastern extremity of the land bearing Sy.No. 146. The boundaries given by them in the 19 O.S.No.1440 / 2009 above said suit fully tallies with the sketch jointly prepared. Thus at the earliest point of time, Nagarathna Reddy and Srinivasa Reddy vendors of the plaintiff claimed that they own 8 acres of land in Sy.No. 146 in the eastern extremity.
24. Further it is alleged that when the matter stands thus the plaintiff now claims in the suit that Nagarathna Reddy and Srinivasa Reddy owned land situated at western extremity of the land bearing Sy.No. 146. The said Nagarathna Reddy and Srinivasa Reddy filed a memo seeking withdrawal of the said suit and accordingly the said suit was disposed off as withdrawn.
25. Further it is contended that since there was some controversy regarding location of the land owned by various persons and the land acquired by KIDB, the Spl. Tahsildar, Bangalore East Taluk got the land bearing Sy.No. 146 surveyed and a sketch was prepared in that connection. The said sketch clearly indicates the location of the land purchased by late Sridharan, husband of the 1st defendant. The said sketch also shows that Nagarathna 20 O.S.No.1440 / 2009 Reddy and Srinivasa Reddy did not own any land in land bearing Sy.No. 146. It also shows the location of graveyard of 1 acre 10 guntas.
26. Further it is contended that R. Muniswamy Reddy only purchased the lands from the original grantees and all the said land so purchased by him was partitioned by his first wife Smt. Padmavathamma and her sons and that Nagarathna Reddy and Srinivasa Reddy claimed to be the children of R.Muniswamy Reddy through his second wife Smt. Venkatamma. After clandestinely getting the name of R. Muniswamy Reddy entered in the RTC as grantee of 8 acres of land, after his death, Nagarathna Reddy and Srinivasa Reddy were able to get their names entered in the RTC and after the death of R.Muniswamy Reddy got the mutation under IHC1/1996-97 claiming title to 8 acres.
27. Further it is contended that, KIADB wanted to acquired further land in land bearing Sy.No. 146 and because of the entries in the RTC standing in the name of Nagarathna Reddy and Srinivasa Reddy issued a 21 O.S.No.1440 / 2009 preliminary notification under Section 28 (1) of the KIADB Act in the year 1998. Although there was only preliminary notification, an entry was made in the RTC in the name of KIADB in respect of the notification issued in the year 1998 which the plaintiff has produced along with the plaint. Subsequently, upon investigation by the KIADB it was found that Nagarathna Reddy and Srinivasa Reddy did not own any land in land bearing Sy.No. 146 and as such there is no question of acquiring Sy.No. 146 as per notification issued under Section 28 (1) of the said Act. Consequently, when a final notification was issued, the land bearing Sy.No. 146 was omitted.
28. Further it is contended that, thereafter Nagarathna Reddy and Srinivasa Reddy approached the Hon'ble High Court in W.P. No.42890 / 2002 seeking direction to KIADB to pay compensation to them in respect of the land notified under preliminary notification issued under Section 28 (1) of the said Act. KIADB stated that since no final notification is issued, the question of payment of compensation does not arise. Consequently, the writ petition was disposed off. 22 O.S.No.1440 / 2009
29. Further it is contended that thereafter Nagarathna Reddy and Srinivasa Reddy approached the Asst. Commissioner, Bangalore North Sub-Division asking him to restore their names in the RTC since no final notification is issued. He appears to have ordered for restoration of their names. It is on the basis of this bogus and cooked up entries the plaintiff claims that title vested with his vendors and he purchased 1 acre of land from them.
30. Further it is contended that the RTC extracts from 1993 to 1999 were in the names of Surendranath and his brother is shown as owners of 4 acres of land. Under various sale deeds dated 07.08.1995, 09.08.1995, 11.08.1995, 12.08.1995, 14.08.1995, 16.08.1995, 17.08.1995, 02.08.1996, 04.08.1996 and 06.08.1996, late Sreedharan, husband of the 1st defendant purchased 4 acres of land from the said Surendranath. After such purchase mutation entries were carried out and the name of late Sreedharan was entered in the RTC as owner of the said land.
23 O.S.No.1440 / 2009
31. Further it is contended that, as already stated one H.V. Nagappa Reddy was granted 3 acres of by the Government. The said Nagappa Reddy sold 3 acres of land to one M.G. Vasanthaiah. The said M.G. Vasanthaiah sold 3 acres of land purchased by him to one H.S. Babu Reddy. Under different sale deeds dated 02.09.1995, 01.09.1995, 04.09.1995 and 05.01.1995, late Sreedharan, husband of the 1st defendant purchased 1 acre 24 guntas of land from the said Babu Reddy. 4 acres of land purchased from Surendranath and 1 acres 24 guntas of land was purchased from Babu Reddy were duly converted to non-agricultural industrial purpose upon the application made by late Sreedharan. Thus, absolute title to an extent of 5 acre 24 guntas in land bearing Sy.No. 146 absolutely vested with late Sreedharan. He was in possession of the said land after getting the land duly converted for non-agricultural industrial purpose.
32. Further it is contended that under a Will dated 19.09.2007 executed by late Sreedharan, 5 acres 24 guntas of land purchased by him as aforesaid was bequeathed to 24 O.S.No.1440 / 2009 one Sri. Pramod. Upon the death of Sreedharan the said land was vested in Sri. Pramod and he continued in possession of the same. Sri. Sreedharan died on 13.10.2007.
33. Further it is contended that under a registered lease deed dated 04.09.2008, Sri. Pramod with whom title of the land vests granted lease of the said property to the 2nd defendant for a period of 30 years. Possession of 5 acres and 24 guntas was delivered to the 2nd defendant under the said lease deed and he is in possession of the same.
34. Further it is contended that, adjacent lands bearing Sy.No. 147, 157/2 and 158/2 of Hoodi Village were in possession of KIADB which granted lease of the said lands to the 2nd defendant under a lease agreement dated 28.07.2008. Thus, the 2nd defendant is in lawful possession of land bearing Sy.No. 146, 147, 157/2 and 158/2 of Hoodi Village. A company by name Azelec Software limited was allotted 3 acres 16 guntas of land bearing Sy.No. 159 by KIADB. The said company granted lease of the said land to 25 O.S.No.1440 / 2009 the 2nd defendant under a lease deed dated 16.07.2008. Thus the 2nd defendant is in lawful possession of 28 acres 29 guntas applied to the State Government for recommending to the Central Government for approval to local Special Economic Zone in the said extent of land. The State Government made such a recommendation. Thereafter the central Government by notification dated 16.02.2009 published in the gazette approved location of Special Economic Zone in the lands as stated above.
35. Further it is contended that, the defendant to carry out construction activities engaged labours who are actually living in the 5 acres 24 guntas of land in land bearing Sy.No. 146 in temporary sheds constructed for their living. The BESCOM also given power supply to the site office located in land bearing Sy.No. 146 and also to the pumps installed for pumping the water from the wells situated in the said land. No other construction activity is going on in land bearing Sy.No. 146 because of interlocutory orders passed in the present suit.
26 O.S.No.1440 / 2009
36. In the written statement the defendant has denied the plaint allegations that the plaintiff is the absolute owner in possession and enjoyment of the schedule property. Further it is contended that, the plaintiff is neither the owner nor in possession of the schedule property and hence, he is not entitled to any of the reliefs sought for in the suit.
Mainly among these grounds it is prayed to dismiss the suit with costs.
37. On the basis of the above pleadings of the parties, the then Presiding Officer of this court has framed the following:
ISSUES
1. Does the plaintiff prove that, he is the absolute owner in possession of the suit schedule property as on the date of suit as contended in the plaint?
2. Does the plaintiff prove that, the defendant is interfering in his possession over the suit schedule property?
3. What order or decree?
38. At the time of evidence, the Power of Attorney holder of plaintiff by name Sri. Prakash Babu examined himself as PW 1 and got marked 46 documents as Ex.P1 to P46 and 27 O.S.No.1440 / 2009 closed his side evidence. On the other hand, the Managing Director of the defendant by name Sri. C. Gopalan S/o late P.K. Panicker examined himself as DW 1 and on their behalf 81 documents were marked as Ex.D1 to D81 and closed their side evidence. Then the case posted for arguments.
39. Heard the arguments.
40. My findings on the above issues are as under:
Issue No.1 : In the Negative
Issue No.2 : In the Negative.
Issue No.3: As per final order for the following:
REASONS
41. ISSUE No.1: During the course of arguments, the
learned senior counsel for the defendant would submits that as per the cause title of the plaint, this suit was filed by the plaintiff through his General Power of Attorney holder Prakash Babu S/o Gurunatha Rao and the said General Power of Attorney holder himself has signed the plaint, but as per the contents of Ex.P1 General Power of Attorney the said document said to have executed by the plaintiff Rupen Patel and the same was notarized or executed before the 28 O.S.No.1440 / 2009 notary on 20.02.2010 and that as the suit was filed on 28.02.2009, at that time the said Power of Attorney was not at all executed and placed before the court and therefore, the suit as filed by the Power of Attorney holder on behalf of plaintiff is not maintainable and the same is liable to be dismissed.
42. Ex.P1 is a original General Power of Attorney said to have executed by plaintiff in favour of one Prakash Babu S/o Gurunatha Rao pertaining to the suit schedule property to do all or any of the acts and deeds on his behalf including to file suit etc. In the concluding para of Ex.P1 document it has been mentioned that the said document was executed by the plaintiff Rupen Patel on 12.01.2009 in the presence of witnesses at Bangalore. It is seen that the plaintiff has field the present suit before this court through his P.A. holder Prakash Babu on 28.02.2009. But as per the contents of Ex.P1 document the said document was not executed or attested before the Notary on 12.01.2009, but the said General Power of Attorney was executed by the executant / plaintiff before the notary on 20.02.2010 i.e. 29 O.S.No.1440 / 2009 after filing of the suit. In this regard, in the cross examination the P.A. holder of plaintiff (PW1) has stated that 'it is true that as per the list of documents filed at the time of filing of this suit, there is no mention regarding production of General Power of Attorney executed by Rupen Patel in my name'. Further he has stated that 'I am not remembering as to whether Rupen Patel was resent before the Notary on 20.02.2010 or not'. In the cross examination PW 1 has admitted that the General Power of Attorney is notarized on 20.02.2010.
43. The above evidence of PW 1 coupled with the contents of Ex.P1 as stated above apparently shows that as rightly submitted by the learned senior counsel for defendant, before filing of this suit or on 12.01.2009 Ex.P1 General Power of Attorney was not executed by the plaintiff Rupen Patel in favour of his P.A. holder Prakash Babu to file the present suit on his behalf. But the said power of attorney was executed by the executant / plaintiff before the notary only on 20.02.2010 i.e. after more than one year from the date of filing of the suit. It appears that Ex.P1 General 30 O.S.No.1440 / 2009 Power of Attorney was not at all produced before this court along with plaint while filing the suit. In such circumstances, it can be stated that the suit as filed by the plaintiff through his P.A. holder Prakash Babu is not at all maintainable as the plaintiff has not at all authorized his P.A. holder during that time to present the suit on his behalf.
Even though in view of the above circumstances of the case the suit of the plaintiff is not maintainable, but on that score itself or due to technical reasons the suit of the plaintiff cannot be dismissed, because at the time of filing of the suit the office of this court has not raised office objection with respect to non-production of original General Power of Attorney along with the plaint and it appears that the then Presiding Officer of this court has also not directed the P.A. holder of the plaintiff to produce the original General Power of Attorney before the court soon after filing of the suit. In this case, the General Power of Attorney holder of plaintiff Prakash Babu has conducted the case as General Power of Attorney holder and he also adduced oral evidence on behalf of plaintiff as PW 1 and got marked certain documents on 31 O.S.No.1440 / 2009 behalf of plaintiff side. Therefore, on considering the above facts and circumstances of the case and as the rights of the parties are involved in the present suit with respect to immovable property, based on the above technical ground it is not proper for this court to dismiss the suit as not maintainable, as contended by the defendant in this case.
44. It is seen from the records that the plaintiff has filed this suit through his Power of Attorney holder against the defendant for the relief of permanent injunction restraining the defendant, their agents, henchmen etc. from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
45. The plaintiff claims that he purchased 6 acres of land (suit property) within the extent of 8 acres of land of Sy.No. 146 of Hoody Village from its lawful vendors under a registered sale deed dated 05.09.2006 and thereby he is having title and possession over the suit schedule property. But in the written statement the defendant has denied the title and possession of the plaintiff in the suit schedule 32 O.S.No.1440 / 2009 property and that the defendant has also set up the main plea in the written statement that in the suit Sy.No. 146 of Hoody village under various sale deeds dated 07.08.1995, 11.08.1995, 12.08.1995, 14.08.1995, 16.08.1995, 17.08.1995, 19.08.1995, 02.03.1996, 04.03.1996 & 06.08.1996 late Sreedharan purchased 4 acres of land from Surendranath in the suit Sy.No. 146. Apart from that the same Sreedharan also purchased 1 acre 24 guntas in Sy.No. 146 from one Babu Reddy under different sale deeds dated 02.09.1995, 01.09.1995, 04.09.1995 and 05.09.1995 and thereby the said Sreedharan was the absolute owner and in possession of 5 acres 24 guntas in Sy.No. 146.
46. During the course of arguments, Sri. S.K.V.Chalapathi, learned senior counsel for the defendant would submits that as the defendant has denied the title of the plaintiff, in such circumstances, the mere suit for bare injunction is not maintainable and that the plaintiff ought to have filed a suit for declaration of title along with consequential relief and therefore, the suit of the plaintiff is not maintainable. He placed reliance of the decision of the 33 O.S.No.1440 / 2009 Hon'ble Supreme Court (2008) 4 SCC 594 - ANATHULA SUDHAKAR VS. P. BUCHIREDDY (DEAD) by LRs & OTHERS.
47. On the other hand, Sri. D.R. Ravishankar, Learned counsel for the plaintiff would submits that even though the plaintiff has filed this suit for bare injunction against the defendant in respect of the suit schedule property, the plaintiff is having title over the suit schedule property and that the defendant claims that late Sreedharan was having title over the alleged property measuring 4 acres 15 guntas in Sy.No. 146 based on some sale deeds and therefore, the suit as filed by the plaintiff is maintainable without seeking the relief of declaration.
48. In the above cited ANATHULA SUDHAKAR's case, in para No.17 of the judgment, at (b) & (d) the Hon'ble Supreme Court has stated as under.
"(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to 34 O.S.No.1440 / 2009 the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) XXXXXXXX.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
49. At this juncture I have referred the decision of our Hon'ble High Court reported in LAWS (KAR) 2016 4 196 -
DECIDED ON 11.04.2016 (ZAREENA VS. MOHAMED
HANEEF; RAO BAHADUR B.P. DAVANAM
CONSTRUCTIONS PVT. LTD; SHOBHA DEVELOPERS LTD; CORPORATION OF CITY OF BANGALORE.
In the above ZAREENA's case pertaining to the facts of that case, and by relying upon the decision of Hon'ble 35 O.S.No.1440 / 2009 Supreme Court reported in AIR 1989 SC 1809, in Para No. 12 & 13 of the judgment our Hon'ble High Court has stated as under.
"12............. When the plaintiff claims her title over the suit schedule property which is denied by the defendant, under such circumstances, it is the duty of the Court to decide the title by collecting the necessary Court fee and the Court cannot dismiss the suit on the ground that prayer for declaration is not sought for and it was only a suit for bare injunction. In this connection, I am referring to the decision of the Hon'ble Apex Court in case of INDIAN OXYGEN LIMITED VS. COLLECTOR OF CENTRAL EXCISE reported in AIR 1989 SC 1809, wherein Their Lordships of the Apex Court have laid down the proposition as under:
" (A) Specific Relief Act (47 of 1963), S.34 -
suit for decree of perpetual injunction restraining defendant from interfering with possession relief of declaration of title not specifically mentioned in relief portion suit could not be dismissed on that ground. A suit was filed for a decree of perpetual injunction restraining the defendant-Corporation from interfering with possession of plaintiff over the land in dispute. The case of Corporation was that the disputed area was acquired for using it as burial ground under Government Order and compensation was paid to plaintiff out of municipal funds and the land was in possession of defendant since then. The plaintiff's case was that the alleged Government Order was cancelled and land was settled under another Government Order with persons who subsequently sold it to plaintiff. The plaintiff also got his name entered in revenue records. The suit was decreed by trial Court but the decision was reversed in first 36 O.S.No.1440 / 2009 appeal. The plaintiff's second appeal was allowed by High Court and the decree of trial Court was restored. Held, that foundation of claim of plaintiff was title which was pleaded in earlier part of plaint and for deciding the nature of a suit the entire plaint has to read and not merely the relief portion. The plaint in the present case does not leave any manner of doubt that the suit has been filed for establishing the title of the plaintiffs and on that basis getting an injunction against the Corporation. The Court fee payable on the plaint has also to be assessed accordingly."
13. Therefore, looking to the principle enunciated in the said decision, the Court has to consider the entire averments in the plaint to know as to what is the suit for. As I have already observed above, the suit filed by the plaintiff virtually was for declaration of title and consequential relief of injunction when it was originally filed in the year 2007 itself. Therefore, the Court has to decide the title on the basis of the said pleadings. Even in the Karnataka Court Fees and Suits Valuation Act, 1958, as per Section 26, under clause (c) which the suit for injunction will be valued for the purpose of payment of Court fee, if we look into the said provision also, the Court can decide even the title in respect of immovable property as it is mentioned in Section 26(a) which reads as under:
" Where the relief sought is with reference to any immovable property and (i) where the plaintiff alleges that his title to the property is denied."
So this provision also makes it clear that when the title of the plaintiff is denied even in injunction suit, the Court has to decide the title. Therefore, in my opinion, the suit originally brought by the plaintiff was not a bare suit for injunction, but in reality and virtually, it was a suit for declaration and consequential relief of injunction. When that is so, the 37 O.S.No.1440 / 2009 contention of respondent Nos.2 to 4 that Art. 58 is applicable and the prayer for amendment regarding the title of the plaintiff is barred by the law of limitation will not sustain at all. So far as the title of the plaintiff is concerned, even if it is not sought for by the plaintiff by filing such amendment application, it is the duty of the Court to decide the title of the plaintiff in view of the rival contentions by the plaintiff and defendants in their pleadings, as laid down by the Hon'ble Apex Court in the above mentioned decisions AIR 1989 SC 1809."
50. Therefore, in view of the ratio laid down in the above ANATHULA SUDHAKAR's case and ZAREENA's case, when the plaintiff is claiming his title over the suit property which is denied by the defendant, under such circumstances, it is the duty of the court to decide the title and cannot dismiss the suit on the ground that prayer for declaration is not sought for and it was only a suit for bare injunction.
As in the present case also the plaintiff is claiming his title over the suit property which is denied by the defendant, under such circumstances, this court has to decide the title of the parties and cannot dismiss the suit on the ground that prayer for declaration is not sought for and it was only a suit for bare injunction.
38 O.S.No.1440 / 2009
51. During the course of arguments, the learned senior counsel for the defendant would submits that in this case the plaintiff has not produced the original grant order and that the plaintiff has produced the Xerox copy of Ex.P36 official memorandum and the Xerox copy of Ex.P38 regarding the survey sketch of 8 acres of land alleged to have granted to said R. Muniswamy Reddy and these documents which are issued by the office of the Asst. Commissioner, Bangalore South Division are not the official certified copies given by the Asst. Commissioner and as the original or certified copies of the said documents are not produced, requirement of Section 65 of the Evidence Act is not satisfied by the plaintiff for adducing secondary evidence in this case. The learned senior counsel for the defendant has placed reliance on the following decisions.
(1) 2007 (5) SCC 730 - J. YASHODA VS. K. SHOBA RANI.
(2) (2016) 16 SCC 483 - RAKESH MOHINDRA VS.
ANITHA BERI AND OTHERS.
52. On the other hand, Sri. D.R. Ravishankar, the learned counsel for the plaintiff would submits that as the above said copies of official memorandum and sketch are issued 39 O.S.No.1440 / 2009 by the Asst. Commissioner by the process of Xerox from the copies of the documents available in their office and as the said documents are the certified copies of the public documents, Section 65 of the Evidence Act is not applicable to the public document. Further he produced the copy of order passed by our Hon'ble High Court in W.P. No. 22275 / 2013 dated 10.07.2013 pertaining to the very same document, in which the plaintiff has challenged the order dated 12.04.2013 passed by this Court in O.S. No.1440 / 2009. The copy of order in the above said writ petition shows that the plaintiff has challenged the order dated 12.04.2013 passed by this court in O.S. No.1440 / 2009. In the said case, the plaintiff has filed a memo dated 05.04.2013 with two documents viz., certified copy of official memorandum dated 29.12.1960 and certified copy of the sketch of the granted portion in respect of Sy.No. 146. But this court has passed the order holding that those documents cannot be considered for marking as they are extracts. In that writ petition in para No.5. of the order the Hon'ble High Court has stated that the documents have been signed by Asst. Commissioner. In other words, extract 40 O.S.No.1440 / 2009 of the official memorandum dated 29.12.1960 and the sketch dated 04.05.1960 have been attested by the Asst. Commissioner, Bangalore Sub-Division Bangalore. Hence, it cannot be said that they are not certified copies issued under law. It is for the respondent to cross examine the witnesses when the documents are marked. Thereby, the Hon'ble High Court has allowed the writ petition and directed this court to permit the plaintiff to mark the documents in evidence if they desire to do so. It appears from the records that, thereafter, in O.S.No.1440 / 2009 the plaintiff has got marked the above said documents i.e. extract of the official memorandum and the sketch and the said documents are marked as Ex.P36 and P41.
Therefore, in view of the above order passed by the Hon'ble High Court in W.P. No. 22275 / 2013 dated 10.07.2013 and in view of the provisions of Section 74 (iii), 76 and 77 of Evidence Act, it is stated that the above arguments as advanced by the learned senior counsel for the defendant has no force at all. The above said documents of the plaintiff side can be looked into and the said documents can be appreciated by this court, while 41 O.S.No.1440 / 2009 passing judgment. I have perused the ratio laid down in the above cited J. YASHODA's case and RAKESH MOHINDRA's case. The facts of the above cited cases are quite differ from the facts and circumstances of the present case. Hence the ratio laid down in the above decisions are not aptly applicable to the present case.
53. In this case the plaintiff claims that he purchased the suit schedule property measuring 6 acres from its lawful vendors under Ex.P35 registered sale deed dated 05.09.2006 in which this suit schedule property is the portion of the property measuring 8 acres of land that was originally granted to one Sri. R. Muniswamy Reddy S/o Ramaiah Reddy who is the father of his vendors namely, Sri. Nagarathna Reddy and Sri. Srinivasa Reddy. According to the plaintiff, under Ex.P36 official memorandum dated 29.12.1960 the Special Deputy Commissioner, Bangalroe District has granted the said 8 acres of land to Sri. R. Muniswamy Reddy S/o Ramaiah Reddy and further he has contended that thereafter the concerned Tahsildar has issued title deed (Form No.II) in favour of Sri. Muniswamy 42 O.S.No.1440 / 2009 Reddy pertaining to 8 acres of land granted to him and Ex.P38 is the sketch prepared by the Surveyor in respect of the said 8 acres of land that was allotted to Sri. R. Muniswamy Reddy S/o Ramaiah Reddy . But the defendant has denied the above contention of the plaintiff and according to the defendant no such grant was made in favour of Sri. R. Muniswamy Reddy S/o Ramaiah Reddy to an extent of 8 acres of land and the alleged documents are bogus documents. Therefore, in view of the above rival contention of the parties, the initial onus of proof lies upon the plaintiff to prove the fact that as contended by him the said Sri. R. Muniswamy Reddy S/o Ramaiah Reddy was granted 8 acres of land in Sy.No. 146 by the Government under Ex.P36 document in a proceeding bearing No. LND.SR.(1) 52/60-61 dated 29.12.1960.
54. If we peruse the contents of Ex.P36 copy of official memorandum dated 29.12.1960, it shows that in a proceeding bearing No. LND.SR.(1)52/60-61 dated 29.12.1960 after obtaining reports from the Tahsildar, Bangalore South Taluk, Sub-Divisional Officer, Sub- 43 O.S.No.1440 / 2009 Division, Bangalore and in view of G.O. mentioned in the said document, the Special Deputy Commissioner, Bangalore District said to have granted 8 acre of land in Sy.No. 146 of Hoody Village in favour of one Sri. R. Muniswamy Reddy S/o Ramaiah Reddy. The contents of this document shows that before grant of the said land, the said Sri. R. Muniswamy Reddy S/o Ramaiah Reddy was an unauthorized occupant and that he was under
unauthorized cultivation of the land.
55. If the person in unauthorized occupation of the land desires that the land unauthorisedly occupied by him be granted to him, he shall make an application to the Deputy Commissioner in Form No. I as per the Karnataka Land Revenue (Regularization of Unauthorized Occupation of Lands) Rules. On receipt of the application under Rule 3,the Deputy Commissioner shall, after verifying the particulars furnished by the applicant by holding such enquiry as he deems necessary and after determining the extent of land that may be granted and the price that may be charged, publish a notice in Form No. II in the chavadi of 44 O.S.No.1440 / 2009 the Village in which the land is situate and also in the office of the panchayat concerned calling for objections to the proposed grant, to be preferred by a date to be specified in the notice, which shall not be less than 15 days from the date of the notice, as per Rule 4. After the expiry of the date specified in such notice and after considering the objections received and after further any enquiry that is considered necessary, the Deputy Commissioner shall determine whether any extent of land may be granted, at what price and subject to what conditions, as required in sub-rule (2) of Rule 4. Thereafter the Deputy Commissioner shall issue a notice in Form No. III to the applicant calling upon him to intimate within a date to be specified, for deposit of the price fixed. If the applicant expresses his willingness and deposits the price within the dates specified or the time extended the Deputy Commissioner shall make the grant and pass an order therefor.
Therefore, before grant of land to any unauthorized occupant of the land, the concerned Deputy Commissioner has to follow the procedure as mentioned in Rule 3 and 4 of the Karnataka Land Revenue (Regularization of 45 O.S.No.1440 / 2009 Unauthorized Occupants of Lands) Rules. But in the present case the plaintiff has produced only Ex.P36 copy of official memorandum and Ex.P38 copy of sketch prepared by the surveyor pertaining to the alleged 8 acres of land alleged to have been granted to the said Sri. R.Muniswamy Reddy S/o Ramaiah Reddy under Ex.P36 document.
56. If we peruse the contents of Ex.P36 official memorandum, the description of the alleged grantee is shown as Sri. R.Muniswamy Reddy S/o Ramaiah Reddy. In the same way in Ex.P37 Form No. II. Title deed to be given to the grantees of lands under the Depressed Class Rules also the description of the grantee is shown as Sri. R.Muniswamy Reddy only. Even his father's name is not at all mentioned in Ex.P37 document. While granting such huge 8 acres of land to any grantee by the Government, in such Ex.P36 official memorandum and Ex.P37 Form No. II. Title deed to be given to the grantees of lands under the Depressed Class Rules, the concerned Deputy Commissioner and Tahsildar have to mention the full particulars of the applicant i.e. his name, father's name, 46 O.S.No.1440 / 2009 age, name of the village including taluk, so as to identify the same clearly of the said grantee without any ambiguity. But in Ex.P36 and P37 documents we can see the name of the alleged grantee as Sri.R. Muniswamy Reddy S/o Ramaiah Reddy only with regard to person sought for grant, but no full description of the alleged grantee is forthcoming in these two important documents.
57. More over, in Ex.P36 document at page No.2 the signature of special Deputy Commissioner with seal of the office is not present. In this document after passing of the alleged order, at page No.2 it has been mentioned as under.
"1. Copy of the above together with connected recordeds is forwarded to the Sub-Division officer, Bangalore, Sub-Division, Bangalore for taking necessary action.
2. Copy of the Tahsildar, Bangalore South Taluk for information and necessary action asper rules.
Sd/-
(signature is appearing) for Special Deputy Commissioner Bangalore District."
In this document at page No.2 after passing of the alleged order, why the signature and seal of the Special Deputy Commissioner, Bangalore District is not forthcoming 47 O.S.No.1440 / 2009 has not been explained by the plaintiff in this case. As per the contents of this document the Special Deputy Commissioner has passed the said order in a proceeding bearing No. LND.SR.(1)/52/60-61 dated 29.12.1960. If that is so, usually all the papers connected to the entire file are kept in the said original proceeding file and the same is in the custody of the Special Deputy Commissioner, Bangalore District. In this document it is not clearly mentioned that by making order the Special Deputy Commissioner has ordered to sent the entire original file in LND.SR.(1)52/1060-61 dated 29.12.1960 to the office of the Sub-Divisional Officer, Bangalore as stated supra. In such circumstances, it can be stated that the original entire file relating to the proceeding bearing No. LND.SR(1)52/60-61 dated 29.12.1960 is in the custody of Special Deputy Commissioner, Bangalore District but not in the custody of Sub-Divisional officer, Bangalore as mentioned in the said document.
58. In this case there is no impediment for the plaintiff to obtain the certified copies of Form No.I i.e. application 48 O.S.No.1440 / 2009 submitted by the alleged Sri.R.Muniswamy Reddy S/o Ramaiah Reddy for seeking grant of 8 acres of land, Form No.II, certificate of the village accountant and revenue inspector to show that notice in form No. II was published by affixing it in the Village etc. and form No. III as required under the Karnataka Land Revenue (Regularization of Unauthorized Occupation of Lands) Rules.
59. It is seen that the plaintiff has not applied for obtaining the copies of the above documents by submitting copy application in the office of the Special Deputy Commissioner who is the actual custody of entire original file in LND.SR.(1)52/60-61 dated 29.12.1960. If the plaintiff applied for obtaining those copies by submitting copy application in the office of the Special Deputy Commissioner, definitely they would have issued such all the copies to the plaintiff provided if such proceedings in LND.SR(1) 52/60-61 was made by the Special Deputy Commissioner and ordered for grant of 8 acres of land to the said Sri.R. Muniswamy Reddy S/o Ramaiah Reddy. The plaintiff has not stated any reasons as to why he failed to 49 O.S.No.1440 / 2009 approach the office of the Special Deputy Commissioner for obtaining the certified copies of those documents. Therefore, in view of the above facts and circumstances of the case and the reasons as stated supra, it is stated that adverse inference has to be drawn against the plaintiff for non-production of certified copies of the relevant documents from the office of the Special Deputy Commissioner, Bangalore District.
60. It is seen that even the plaintiff has not produced any receipt to show that the alleged grantee Sri.R. Muniswamy Reddy S/o Ramaiah Reddy has deposited upset price of Rs.920/- in the concerned Treasury by submitting challan. Regarding this aspect of the matter, there is no explanation or evidence is forthcoming from the plaintiff.
61. According to the plaintiff, Ex.P39 is the original grant certificate issued by the Tahsildar, Bangalore South Taluk, in favour of Sri.R. Muniswamy Reddy S/o Ramaiah Reddy for having grant of 8 acres of land in Sy.No. 146 of Hoody Village, as per the order of the Special Deputy 50 O.S.No.1440 / 2009 Commissioner, in LND.SR.(1)52/60-61. In Ex.P39 at page No.2 under the heading 'description of land' at boundaries column it has been mentioned as 'as per revenue inspector's sketch'. But as per the contents of Ex.P41 sketch the same was prepared by Surveyor, Bangalore South Taluk, but the same was not prepared by the Revenue Inspector. Even the signature of Revenue Inspector is not forthcoming in Ex.P41 document. More over, on whose direction and based on which letter of the concerned revenue officer, the surveyor has prepared Ex.P41 sketch of the alleged 8 acres of land is not mentioned in this document. Therefore, no value can be attached to the contents of Ex.P41. As per the contents of Ex.P41 sketch, this document is the extract of the copy which is available in the office of the Asst. Commissioner, Bangalore Sub-Division, Bangalore. But the plaintiff has not obtained the certified copy of this alleged sketch from the original file bearing No. LND.SR.(1)52/60-61 which is in the custody of special Deputy Commissioner, Bangalore District.
62. According to the plaintiff Ex.P39 is the original grant certificate issued to the alleged grantee Sri.R. Muniswamy Reddy S/o Ramaiah Reddy. In the cross examination at 51 O.S.No.1440 / 2009 page No. 13 the P.A. holder of the plaintiff (PW 1) has stated that he do not know as to who is in custody of the original grant certificate stated in para No.2 of my plaint and affidavit.
63. It is seen from the records that this original alleged grant certificate i.e. Ex.P39 was got marked through PW 1 in this case at the time of evidence on 17.07.2014 i.e. after a lapse of about 5 years from the date of filing of the suit.
Sub-Rule (1) to (3) of Order VII Rule 14 of CPC reads as under.
(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.
(3) A document which out to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produce or entered accordingly, shall not, without the leave of the 52 O.S.No.1440 / 2009 court, be received in evidence on his behalf at the hearing of the suit.
Sub-Rule 14 of Order VII of CPC was substituted by Act No.46 of 1999, w.e.f. 01.07.2002. The plaintiff has filed this suit during the year 2009. Therefore, Sub-Rule (1) of Order VII Rule 14 of CPC mandates that where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. As per Sub-Rule (2) of Order VII Rule 14 of CPC, where any such document is not in the possession or power of the plaintiff, he shall, where possible, state in whose possession or power it is.
But in this case the plaintiff has not at all stated in the plaint or at subsequent stage of the proceedings, i.e. before filing of the written statement or settlement of issues to the effect that in whose possession this alleged Ex.P39 original grant certificate is present. But after a lapse of about 5 years from the date of filing of the suit, this important 53 O.S.No.1440 / 2009 alleged grant certificate was produced before the court and got marked through PW 1 on behalf of plaintiff.
64. The plaintiff has not examined his vendors namely, Nagarathna Reddy and Srinivasa Reddy who are said to be the children of the alleged grantee Sri.R. Muniswamy Reddy S/o Ramaiah Reddy in order to prove the factum of grant made in favour of their father by the Special Deputy Commissioner in LND.SR.(1) 52 / 60-61. Therefore, adverse inference has to be drawn against the plaintiff for non- examination of his vendors.
In this type of case, the plaintiff ought to have stepped in to the witness box and adduce evidence personally regarding the alleged grant of 8 acres of land to the said Sri.R. Muniswamy Reddy S/o Ramaiah Reddy by the Government. But for the reasons best known to him the plaintiff also failed to adduce evidence personally in this case. Therefore, the oral evidence of PW 1 (P.A. holder of plaintiff) is not worth to accept.
54 O.S.No.1440 / 2009
65. As already stated, the contents of Ex.P36 official memorandum shows that before seeking grant of 8 acres of land in Sy.No. 146, the applicant Sri.R. Muniswamy Reddy S/o Ramaiah Reddy was an unauthorized occupant and he is under unauthorized cultivation. But if we peruse the contents of Ex.P39 the alleged grant certificate which was issued in prescribed Form No. II. Title deed to be given to the grantees of lands under the Depressed Class Rules, it shows that such title deed to be given to the grantees of unoccupied Government land for cultivation and the grant of occupancy rights to Depressed Classes, but not to the applicants or grantees who are under unauthorized cultivation of the land. The above facts and circumstances of the case is one of the strong circumstances to disbelieve the case of the plaintiff regarding the alleged grant of 8 acres of land in Sy.No. 146 of Hoody village in favour of the alleged grantee Sri.R.Muniswamy Reddy S/o Ramaiah Reddy.
66. According to the plaintiff, in order to show that 8 acres of land was granted to Sri. R. Muniswamy Reddy, he obtained Ex.P2 55 O.S.No.1440 / 2009 Saguvali Chit extract from the office of Tahsildar, Bangalore South Taluk. The contents of this document shows that this document was obtained from the office of the Tahsildar, Bangalore South Taluk on 16.12.1987. This copy of Saguvali Chit extract was prepared in ink pen and it was handwritten in a white paper. In this document, Grant Order number is shown as 39 LND & R.I.526/60-61. But in the plaint the plaintiff has mentioned the grant order number as Grant Order No.39/LND&R/60-61. This shows that the alleged grant order mentioned in the plaint is not tallies with the above alleged grant order mentioned in Ex.P2 document. In this document event though it is mentioned that R. Muniswamy Reddy was granted an extent of 8 acres of land in Sy.No. 146 of Hoody Village for an upset price of Rs.100/- per acre and it is also mentioned the figure 920 (towards total upset price) but in this document it is not at all mentioned regarding the receipt number and date on which the grantee deposited the upset price of Rs.920/- to the Treasury. In this document the proceedings No. LND.SR (1) 52/60-61 dated 29.12.1960 of Special Deputy Commissioner, Bangalore District is not mentioned regarding the alleged sanction of 8 acres of land to the said R.Muniswamay Reddy. Therefore, this document is not helpful to the case of the plaintiff 56 O.S.No.1440 / 2009 to prove that the Government has granted 8 acres of land to R. Muniswamay Reddy in Sy.No. 146.
67. Ex.D74 in an endorsement dated 13.03.2013 on the behalf of the Deputy Commissioner, Bangalore District in favour of one Sri. Munisiddappa who sought for copies of document pertaining to grant made relating to Sy.No. 146 of Hoody Village in the proceeding No. LND52/60-61 of Deputy Commissioner. In the same way, Ex.D77 is another endorsement dated 20.02.2013 issued on behalf of Deputy Commissioner Bangalore District by its Office in favour same Munisiddappa who sought for copies of documents pertaining to grant made relating to Sy.No. 146 of Hoody Village in the proceedings No.LND/ SR52/60-61 of Deputy Commissioner.
68. In the above said two endorsements it has been mentioned that after verification of records in the concerned branch it is found that the records is not available / present. This clearly shows that no such records relating to land grant proceedings bearing No.LND(1)SR52/60-61 is available in the office of Deputy Commissioner, Bangalore District. But as per the contents of Ex.P36 official memorandum dated 29.12.1960, the Special Deputy Commissioner, Bangalore District has granted 8 acres of 57 O.S.No.1440 / 2009 land in Sy.No. 146 to R.Muniswamy Reddy S/o Ramaiah Reddy in a proceedings bearing No. LND(1)SR52/60-62.
69. If really such grant was made in the above said proceeding number file, definitely, the Deputy Commissioner Bangalore District would have issued copies of proceedings No. LNDSR(1)(52/60-61 instead of issuing such endorsements. Therefore, from the above circumstances, it can be stated that no such proceedings No. LND SR (1) 52/60-61 is available/ present in the office of Deputy Commissioner, Bangalore District.
70. Apart from this, as per the contents of Ex.D28 endorsement dated 18.03.20069 issued by the under Secretary to Revenue Department (Land Grant), Government of Karnataka, Bangalore, the defendant has sought for copy of order pertaining to grant of 8 acres of land in Sy.No. 146 of Hoody Village in the name of R.Muniswamay Reddy by mentioning G.O. No.RD 26 LRD 60 dated 22.12.1960. But in the endorsement it is stated that on verification of records in land grant section and Government Gazette Section it is found that as per G.O.No. RD 26 LRD 60 dated 22.12.1960 no land was granted to Sri. R.Muniswamay Reddy and in this regard no information is available in their office. The content of Ex.D28 document shows 58 O.S.No.1440 / 2009 that no such grant was made in the name of Sri. R.Muniwamay Reddy as per G.O.No. RD 26 LRD 60 dated 22.12.1960.
71. Ex.D37 copy of plaint in O.S. No. 6582 / 1997 shows that the vendors of the plaintiff viz., Nagarathna Reddy and Sri.Sreenivasa Reddy filed the suit against the Managing Director, KIADB, Bangalore for the relief of permanent injunction pertaining to the land in Sy.No. 146 which is alleged to have granted to their father Sri. R. Muniswamy Reddy during his life time.
72. The contents of Ex.D38 memo dated 30.10.1998 field by the defendant of that suit shows that the land in question came to be acquired by the State for KIADB. The Notification are already field before the court. In view of the same it is prayed to dismiss the suit as not maintainable. The contents of Ex.D39 copy of letter of F.D.S. KIADB Bangalore and the sketch attached to it shows that joint survey was conducted in order to identify the land acquired under Section 28 (4) of KIADB Act i.e. 13.33 guntas in Sy.No. 146 of Hoody Village. The copy of sketch attached to Ex.D39 shows that the land which is mentioned in the letter ABCD i.e. 8 acres of land which is shown in the boundary of the suit schedule property by Sri. Nagarathna Reddy 59 O.S.No.1440 / 2009 and Sreenivasa Reddy in O.S. No. 6582 / 1997 pertaining to the same boundary and this land as per the joint survey comes within the land acquired under the Notification.
73. If we compare the plaint schedule of 8 acres of land mentioned in O.S. No.6582 / 1997 with the copy of sketch attached to Ex.D39, it shows that both the boundaries are tallies with each other. This shows that at an undiputed point of time the vendors of the plaintiff have stated in the plaint schedule in O.S. No. 6582 / 1997 that their alleged 8 acres of land is situated towards eastern extremity of Sy.No. 146 i.e. adjacent to Sy.No. 145 towards eastern side.
74. It is seen from the records that through out it is the contention of the plaintiff that the land measuring 8 acres granted to Sri. R.Muniswamay Reddy is situated towards western side of Sy.No. 146 but not towards eastern extremity of Sy.No.
146. At that time of arguments, the learned counsel for the plaintiff drew the attention of this court with regard to the contents of Ex.P27rectified notification issued by the KIADB and it is submitted that as per the boundaries mentioned in this document relating to the land measuring 8 acres of Nagarathna Reddy and Sreenivasa Reddy the eastern boundary is shown as 60 O.S.No.1440 / 2009 acquired land in Sy.No. 146 and therefore, the land measuring 8 acres belong to the vendors of the plaintiff is situated towards western side of Sy.No. 146 but not towards eastern extremity of Sy.No. 146.
75. It is seen that though it is mentioned in Ex.P27 document that the eastern boundary is the acquired land in Sy.No. 146, but the contents of this document regarding eastern boundary cannot be accepted because the vendors of the plaintiff themselves stated in the plaint schedule of their alleged 8 acres of land towards eastern boundary as Sy.No. 145 in O.S. No. 6582/1997. Even the sketch prepared after joint survey also shows the same.
76. This apart, Ex.D42 letter dated 27.12.1997 given by the vendors of plaintiff to the Special LAO, KIADB shows that they themselves admitted regarding survey conducted by the surveyor on 12.11.1997 and they shown their land to him in the spot and they requested to issue copies of survey sketch and statement given by them. Therefore, the contnts of Ex.D42 itself shows that vendors of plaintiff themselves shown their land to the Surveyor at the time of conducting survey in Sy.No. 146. As already state, as per the sketch prepared by the surveyor the alleged land of 8 61 O.S.No.1440 / 2009 acres of the vendors of plaintiff is situated towards eastern portion of Sy.No. 146 which is tallies with the plaint schedule in O.S. No. 6582 / 1997. Ex.D40 copy of memo dated 13.01.1999 shows that the plaintiff in O.S. No. 6582 / 1997 filed the said memo praying to dismiss the suit as they intend to settle their claims with the defendant. Ex.D41 copy of order sheet in O.S. No. 6582/1997 shows that in view of the memo filed by the plaintiff the suit is disposed of as withdrawn. Ex.D46 copy of order passed by the Hon'ble High Court in W.P. No.42890/2002 dated 01.09.2004 shows that the vendors of the plaintiff field the said Writ petition against the Secretary, Revenue Department and KIADB seeking direction to the respondents to pay compensation for the land alleged to have been acquired. Learned counsel for the 2nd respondent KIADB submits that final notification is not issued. In view of this submission, the Hon'ble High Court has ordered that question of paying compensation to the petitioners does not arise and the writ petition is wholly unnecessary and hence the writ petition is disposed of accordingly.
77. All the above facts and circumstances of the case shows that even though the plaintiff and his vendors have contended that the said 8 acres of land granted to R.Muniswamay Reddy in Sy.No. 146 is situated towards western side, but in O.S. No. 62 O.S.No.1440 / 2009 6582/1997 the vendors of the plaintiff themselves have shown the eastern boundary of their land as Sy.No. 145 and as per the plaint schedule and the survey sketch prepared at the time of joint Secretary shows that the alleged 8 acres of land is situated on the eastern extremity of Sy.No. 146 but not towards western portion of Sy.No. 146. This itself shows that the identity and location of the alleged 8 acres of land as they claimed is not at all proved by the plaintiff or his vendors by placing material evidence.
78. During the course of arguments, the learned senior counsel for defendant submits that as per Ex.D66 copy of registered partition deed dated 25.04.2003 the wife and children of R.Muniswamay Reddy viz., Smt. Venkatamma, Sri. Nagarathna Reddy and Sri. Sreenivasa Reddy partitioned their joint family properties and in the said partition deed this alleged 8 acres of land in Sy.No. 146 alleged to have granted to R.Muniswamay Reddy is not mentioned and that as this 8 acres of land was not granted to R. Muniswamay Reddy in Sy.No. 146 for that reason the said property is not include in the said partition deed and hence the claim of the plaintiff that 8 acres of land in Sy.No. 146 was granted to R.Muniswamay Reddy cannot be accepted. 63 O.S.No.1440 / 2009
79. As rightly submitted by the learned senior counsel for the defendant, it is seen that though the wife and children of R. Muniswamay Reddy i.e. Smt. Venkatamma and vendors of the plaintiff have partitioned their joint family properties, but conspicuously this alleged 8 acres of land alleged to have granted to the father of vendors of the plaintiff is not present or mentioned as their joint family properties and this property is not partitioned in the said document. If at all this 8 acres of land was really granted to the father of the vendors of plaintiff the question of omitting the said land in this partition deed does not arise. This partition was effected between them at an undisputed point of time i.e. before purchase of suit property by the plaintiff from his vendors as per Ex.P35 registered sale deed dated 05.09.2006. This is one of the strong circumstances to disbelieve the contention of the plaintiff that 8 acres of land was granted to Sri. R. Muniswamay Reddy in Sy.No.146 by the Government under Ex.P36 alleged order passed by the Special Deputy Commissioner, Bangalore District.
80. Therefore, on considering the above facts and circumstances of the case and for the reasons as stated by me supra, it is my considered opinion that the plaintiff has failed to prove the fact that the 8 acres of land was granted to Sri. 64 O.S.No.1440 / 2009 R.Muniswamay Reddy (father of his vendors) in Sy.No. 146 of Hoody Village by the Government in proceedings bearing No. LND SR(1) 52/60-61 dated 29.12.1960 under Ex.P36 document. During the course of arguments the learned counsel for the plaintiff would submits that after grant of 8 acres of land in Sy.No. 146 of Hoody Village in favour of father of the vendors of the plaintiff i.e., R. Muniswamay Reddy as perEx.P36 order of Special Deputy Commissioner, the name of Sri. R. Muniswamay Reddy was entered inColumn No.9 and 12 (2) of RTC extract (Ex.P6) from the year 1967-68 onwards to an extent of 8 acres and after the death of R. Muniswamy Reddy on the basis of Ex.P3 mutation extract the names of vendors of plaintiff viz., Nagarathna Reddy and Sreenivasa Reddy entered in the RTC as per IHC 1/96-97 from the year 1997-98 and onwards as shown in Ex.P10 RTC extract, both in Column No.9 and 12(2) pertaining to 8 acres of land granted to R. Muniswamay Reddy. Thereafter entries in the RTC not continued in their name for some time. The said Nagarathna Reddy and Sreenidasa Reddy approached the Asst. Commissioner by filing appeal in R.A. No. 360/04-05 and the said appeal was allowed on 11.01.2004 and that the Asst. Commissioner directed that katha to be made in the name of Nagarathna Reddy and Sreenivasa Reddy and accordingly, their names entreed in the RTC as per M.R. No. 66/04-05 dated 65 O.S.No.1440 / 2009 15.01.2005 for 8 acres of land from 2007-08 and onwards and the said entries in revenue records are not challenged by the defendant and hence, presumption has to be drawn with regard to the entries in the revenue records with respect to the names of vendors of plaintiff as per Section 133 of the Karnataka Land Revenue Act. In this regard the learned counsel for the plaintiff has placed reliance on the following decisions.
(1) (2018) 6 SCC 580 - VISHWASRAO SATWARAO NAIK AND OTHERS VS. STATE OF MAHARASHTRA.
(2) ILR 2014 KARNATAKA 4716 - VASUDEV AND OTHERS VS. TUKARAM BHIMAPPA NAIK AND OTHERS.
(3) ILR 2014 KARNATAKA 1881 - G.M. NAGESHA GOWDA AND OTHERS VS. SMT.
ANNAPOORNAMMA AND OTHERS.
(4) ILR 2006 KARNATAKA 2994 - SMT.
GOWRAMMA (SINCE DEAD BY LRs VS. THE LAND TRIBUNAL, THE TAHSILDAR) (5) (2002) 10 SCC 315 - KAREWWA AND OTHERS VS. HUSSENSAB KHANSAHEB WAJANTRI AND OTHERS.
81. On the other hand, the learned counsel for the defendant would submits that RTC for the earliest period is Ex.P6. As per this document the total extent of land in Sy.No. 146 is shown as 26 acres 13 guntas. In Column No. 9 the names of several persons as holding land and extent they hold is shown. The 66 O.S.No.1440 / 2009 name of the said R.Muniswamy Reddy has been added as a last entry in a different ink in Column to an extent of 8 acres is a fraudulent entry. If that is so, the presumption under Section 133 of the Karnataka Land Revenue Act do not come to the aid of the plaintiff. In this regard the learned counsel for the defendant has placed reliance on the decision of the Hon'ble Supreme Court reported in AIR 1977 SC 1712.
82. The sum of substance of the ratio laid down in the above 5 cited decision as referred by the learned counsel for the plaintiff is that presumption of the truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleged that the entries in the revenue record are wrong to lead evidence to rebut this presumption.
83. The sum and substance of the ratio laid down in the above cited decision as referred by the learned counsel for the defendant is that 'There is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct'.
Bearing in mind the ratio land down in the above cited decisions now it is just and reasonable to peruse the contents of RTC extracts.
67 O.S.No.1440 / 2009
84. As rightly submitted by the learned counsel for the defendant it is seen that in Ex.P6 RTC extract the total extent of land in Sy.No. 146 is shown as 26 acres 13 guntas. This RTC extract is issued for the year 1967-68 to 1970-71. In Col. No.9 it has been mentioned as under.
6-0 Nagappa Reddy
3-0 M.G.Vasanthaiah
5-13 A.V. Ppaiah Reddy
6-0 Thippamma
5-0 R. Munishami Reddy
8-00 R. Munishami Reddy (in different ink). Opposite to his name in Col.No.11 it has been mentioned as LND SR 52/60-61 (in different ink).
85. If we calculate the above all the extent of lands, the total extent of land would be 33-13 guntas. But the total extent of land in Sy.No. 146 is only 26-13 guntas. Thus prima facie the contents of RTC extract itself shows that the last entry in the name of R.Muniswamy Reddy to an extent of 8 acres is a fraudulent entry. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue is also appears that the record of rights (Ex.P6) has no reference to the mutation entry that was made by the concerned Revenue authorities in the name of the alleged grantee R.Muniswamay Reddy by following the procedure as contemplated under the K.L.R. Act. Therefore, 68 O.S.No.1440 / 2009 the defendant is right in contending that no presumption can validly arise from the record of rights.
86. As already stated, this court has held that the plaintiff has failed to prove the fact that the alleged R.Muniswamay Reddy was granted an extent of 8 acres of land by the Government in Sy.No. 146 of Hoody Village under Ex.P36 document. As stated above, this court has also held that no presumption can validly arise from the record of rights. Hence this court has held that prima facie the contents of RTC extract itself (Ex.P6) intrinsically shows that the last entry in the name of R.Muniswamy Reddy to an extent of 8 acres is a fraudulent or illegal entry. In such circumstances, whatever the subsequent entries continued or made in the RTC extract pertaining to 8 acres of land in Sy.No. 146 in the name of R. Muniswamy Reddy and thereafter in the names of vendors of plaintiff have no presumptive value under Section 133 of K.L.R. Act. In such circumstances, no value can be attached to the entries in the revenue records which are stood in the name of R.Muniswamay Reddy and thereafter the names of vendors of the plaintiff. Therefore the above arguments as advanced by the learned counsel for plaintiff has no force at all. 69 O.S.No.1440 / 2009
87. The documents produced by the defendant shows that as per Ex.D32 copy of the order passed by the Tahsildar, when the present plaintiff, one P.K. Satyapal and R. Ramesh Babu (other plaintiffs in connected O.S. No. 1379 /2009 and 1326 / 2009), who are the purchaser of the land measuring 8 acres in Sy.No. 146 from the said Sri. Nagarathna Reddy and Sri. Srinivasa Reddy seek transfer of Katha in their names in the revenue records, the same was objected by the deceased Sri.Sreedharan. Thereafter proceedings bearing No. RRT (Dis) 119, 120, 121/2006-07 arise before the Tashildar, Bangalore East Taluk. The petitioners in that case are Satyapal, present plaintiff and one Ramesh Babu and the respondents are Sri. Nagarathna Reddy , Sri. Srinivasa Reddy, Sreedharan and others. In the above said proceedings, the Tahsildar, Bangalore East Taluk ordered to cancel the names of petitioners entered in the Katha in earlier M.R. No.66/04-05. Against the order dated 18.04.2007 passed by the Tahsildar, the present plaintiff and others preferred R.A. 68/1961, 195/2007-08 before the Asst. Commissioner, Bangalore North Sub-Division. After perusing the records the Assistant Commissioner has dismissed the appeal on 11.07.2008. Thereafter, aggrieved by the said order, the appellant / present plaintiff preferred Revision Petition No. 42/2008-09 (Ex.D34) before the Special Deputy Commissioner, Bangalore 70 O.S.No.1440 / 2009 District. Having heard the argument of the learned counsel for the parties the Special Deputy Commissioner has allowed the Revision Petition on 22.12.2008 on other reasons, but the said order is not helpful to the appellant. In the said order, the special Deputy Commissioner as stated that there is serious dispute with regard to the right, title and as well as possession of the lands in question. Thereafter, being aggrieved by the said order, the said Ramesh Babu, P.K. Satyapal and the present plaintiff have preferred writ petition No.32881 - 32883 / 2012 before the Hon'ble High Court. Having heard the arguments of the learned counsel for the parties, on 28.11.2012 the Hon'ble High Court has remanded the matter to hold enquiry by the Special Deputy Commissioner as observed in para No.18 of the order and ordered to dispose of the matter within an outer limit of four months from 10.12.2012. During the course of the arguments the learned counsel for the parties submits that after remand of the matter till now the matter is not disposed of. Be that as it may.
88. Therefore, on considering the oral and documentary evidence of both the parties and in view of the reasons as stated by me supra, it is held that the plaintiff has failed to prove the fact that the said R. Muniswamy Reddy (father of vendors of the 71 O.S.No.1440 / 2009 plaintiff) was granted 8 acres of land in Sy.No. 146 of Hoody Village by the Government under Ex.P36 document. Consequently, no title will conferred to the plaintiff in respect of suit schedule property on the strength of Ex.P35 registered sale deed dated 05.09.2006 executed by the said Sri. Nagarathna Reddy and Sri. Sreenivasa Reddy who are the children of deceased R.Muniswamay Reddy.
89. As the defendant has mainly contended that late Sreedharan had purchased totally 4 acres of land from Surendranath and others under different registered sale deeds (Ex.D5 to D14) in the suit Sy.No. 146 and also he purchased 1 acre 24 guntas in Sy.No. 146 from H.S. Babu Reddy under different sale deeds (Ex.D16 to D19) and C. Pramod purchased 1 acre 16 guntas in Sy.No. 146 from H.S. Babu Reddy under a registered sale deed (Ex.D24), in order to set at rest the controversy between the parties with regard to the alleged title of late Sreedharan in Sy.No. 146 and to avoid any future litigation between the parties with regard to the title of Sreedharan in the lands acquired by him through different sale deeds, I feel that though the present suit is only for bare injunction, the court can 72 O.S.No.1440 / 2009 incidentally consider the title of late Sreedharan in the lands which he purchased in Sy.No. 146.
90. During the course of arguments the learned senior counsel for defendant would submits that one Yellappa Reddy claiming to be the owner of the land bearing Sy.No. 146 had sold different extent of land to one H.V. Nagappa Reddy, H.V. Papaiah Reddy, B. Muniswamay Reddy and Smt. Parvathamma. The lands were subsequently purchased by H.D. Nagappa Reddy in a public auction. The said public auction was challenged by the public and auction was set aside and an appeal was filed by H.V. Nagappa Reddy and others who had purchased the land from Yellappa Reddy. However, subsequently, the Government taking into consideration their actual cultivation, after having purchased by Yellappa Reddy, granted 3 acres of land each to the above said H.V. Nagappa Reddy, H.V. Papaiah Reddy, B. Muniswamay Reddy and Smt. Parvathamma. Even earlier to grant in their favour, Parvathamma sold an extent of 10 acres of land to Dr.R. Muniswammy Reddy on 01.10.1951. Similarly, 73 O.S.No.1440 / 2009 B. Muniswamy Reddy also sold an extent of 5 acres of land under a registered sale deed dated 01.10.1951 to Dr.Muniswamy Reddy. Sri. H.V. Papaiah Reddy also sold 3 acres of land Dr.R. Muniswamy Reddy under a registered sale deed dated 20.10.1953. H.V. Nagappa Reddy also sold 6 acres of land to Dr. R.Muniswamy Reddy under a registered sale deed dated 01.10.1951. However, the above said persons got only 3 acres of land each granted to them. Thereby Dr.R.Muniswamy Reddy became owner of land granted to aforesaid four persons since the sale deeds were executed earlier to the grant. Further, it is argued that by virtue of Section 43 of Transfer of Property Act, although on the date of sale, the vendors had no title to the property since each of them obtained title to 3 acres of land by grant, subsequently, the title of Dr. R.Muniswamy Reddy to a total 12 acres of land was also perfected by the doctrine of feeding the grant of estoppel. The learned counsel for the defendant has placed reliance on the following decisions.
(1) (2003) 10 SCC 200 - RENU DEVI VS. MAHENDRA SINGH AND OTHERS. (2) ILR 2015 KARNTAKA 3353 - SMT. SHARADAMMA AND ANOTHER VS. SRI. R. VISHWANATH AND OTHERS. 74 O.S.No.1440 / 2009
91. During the course of arguments, the learned counsel for the plaintiff would submits that at the time of selling the lands by the above said H.V. Nagappa Reddy, H.V. Papaiah Reddy, B.Muniswamay Reddy and Smt. Parvathamma through sale deeds to the said Dr. R.Muniswamy Reddy, no lands were granted to them by the Government and prior to the grant made in their favour the said four persons have executed the sale deeds in favour of Dr. R. Muniswamy Reddy for more extent than the extent of land granted to them and that at the time of executing the said sale deeds the grantees have no title to execute such sale deeds and therefore, the lands purchased by late Sreedharan from the legal heirs of Dr. R. Muniswamy Reddy will not confer any title to him to an extent of 5 acres 24 guntas of the land which he purchased in Sy.No. 146 and Section 43 of the Transfer of Property Act is not applicable to the present case. The learned counsel for the plaintiff has placed reliance on the following decisions.
(1) (1994) 4 SCC 730 - KARTAR SINGH (DEAD) BY LRs AND OTHERS VS. HARBANS KAUR (SMT.) 75 O.S.No.1440 / 2009 (2) 1962 SUPP (1) SCR 554 - JUMMA MASJID MERCaRA VS. KODI MANIANDRA DEVIAH AND OTHERS.
92. It seen from the records that in Ex.D32 order dated 18.04.2007 in RRT Dispute No. 119 to 121 / 2006-07, in the body of the order, the concerned Tahsildar has stated that under G.O. No.R16451-52 LR 475/51-9 dated 09.03.1953 Government has granted 3 acres of land each to (1) H.V. Narayana Reddy (it appears that by oversight the name of H.V. Narayana Reddy has been mentioned instead of H.V. Nagappa Reddy), (2) H.V. Papaiah Reddy, (3) Parvathamma, (4) B. Muniswamy Reddy. Saguvali chit was issued to them on 22.08.1955. Ex.D3 copy of Saguvali Chit register extract also shows that the Government has granted 3 acres each to the above said four persons in Sy.No. 146 of Hoody Village.
93. As per Ex.D62 copy of registered sale deed dated 01.10.1951 the above said grantee B. Muniswamy Reddy had sold 5 acres of land in Sy.No. 146 to Dr. R.Muniswamy Reddy. As per Ex.D63 copy of registered sale deed dated 76 O.S.No.1440 / 2009 01.10.1951 one H.V. Narayana Reddy and his wife Smt. Parvathamma have sold 10 acres of land in Sy.No. 146 to Dr.R. Muniswamy Reddy. As per Ex.D64 copy of registered sale deed dated 14.09.1953 the said H.V. Nagappa Reddy had sold 6 acres of land in Sy.No. 146 to Dr. R. Muniswamy Reddy. As per Ex.D65 registered sale deed dated 23.10.1953 the above said Papaiah Reddy has sold 3 acre of land in Sy.No. 146 to Dr. R. Muniswamy Reddy.
94. Ex.D32 document shows that Government has granted 3 acres of land each to the above said four persons on 09.03.1953 as per the Government order. The above said Ex.D65 sale deed dated 23.10.1953 was executed after the grant dated 09.03.1953 by the said Papaiah Reddy in favour of Dr. R. Muniswamy Reddy. Therefore, the consideration of applicability of Section 43 of Transfer of Property Act so far as with respect to this sale transaction does not arise.
So far as with respect to the sale transaction took place under Ex.D62 to D64 documents is concerned, as per the contents of Ex.D64 document it has been mentioned 77 O.S.No.1440 / 2009 that sale agreement bearing No. 4422 was also handed over to Dr.R.Muniswamy Reddy. On considering the above contents of Ex.D64 document and as Ex.D62 and D63 sale transactions are took place prior to the grant made in favour of the above said B. Muniswamy Reddy and Parvathamma, now it is just and reasonable to consider whether Section 43 of the Transfer of Property Act is applicable to the present case.
95. In the above cited KARTAR SINGH (DEAD) BY LRs AND OTHERS VS. HARBANS KAUR (SMT.)'s case in para No.4 and 7 of the judgment the Hon'ble Supreme Court has stated as under.
4. A reading clearly shows that for application of Section 43 of the Act, two conditions must be satisfied. Firstly, that there is a fraudulent or erroneous representation made by the transferor to the transferee that he is authorised to transfer certain immovable property and in the purported exercise of authority, professed to transfer such property for consideration. Subsequently, when it is discovered that the transferor acquired an interest in the transferred property, at the option of the transferee, he is entitled to get the restitution of interest in property got by the transferor, provided the transferor acquires such interest in the property during which contract of transfer must subsist.
78 O.S.No.1440 / 2009
7. Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or put on notice that the transferor does not possesses the title which he represents that he has. When note in the sale deed puts the appellant on notice of limited right of the mother as guardian, as a reasonable prudent man the appellant is expected to enquire whether on her own the mother as guardian of minor son is competent to alienate the estate of the minor. When such acts were not done in first limb of Section 43 is not satisfied. It is obvious that it may be an erroneous representation and may not be fraudulent one made by the mother that she is entitled to alienate the estate of the minor, entitled to alienate the estate of the minor. For the purpose of Section 43 it is not strong material for consideration. But on declaration that the sale is void, in the eye of law the contract is no nest to the extent of the share of the minor from its inception. The second limb of Section 43 is that the contract must be a subsisting one at the time of the claim. A void contract is no contract in the eye of law and was never in existence so the 2nd limb of Section 43 of is not satisfied. The ratio of this Court in Jumma Masjid's case 1962 AIR SC 847 is thus:
"Section 43 embodies a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. For the purpose of the section, it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 79 O.S.No.1440 / 2009 would then have no application and the transfer will fail under Section 6(a)."
This Court in the later part has made it clear that whether the transferee knows as a fact that the transferor does not possess the title which he represents he has, then he cannot be said to have acted on it when taking a transfer. Section 43 would then have no application and the transfer will fail under Section 6(1) of the Transfer of Property Act. In view of the finding that no diligent and reasonable enquiries were made regarding the entitlement of the mother to alienate the half share of the minor's estate, it cannot be said that the appellant had acted reasonably in getting the transfer in his favour. In the above cited RENU DEVI VS. MAHENDRA SINGH AND OTHERS's case in para No.14 of the judgment, the Hon'ble Supreme Court has stated as under.
"14. Though there is some doubt expressed by Indian scholars and authorities if the common law doctrine of "the estate instantly passes" is applicable in India but there is no doubt that the doctrine of feeding the estoppel applies in India. The rule is that if a man, who has no title whatever to the property, grants it by a conveyance which in form carries the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes."...............
96. Bearing in mind the ratio laid down in the above decisions, if we peruse the material on record, it is seen that 80 O.S.No.1440 / 2009 before grant of land to the said B. Muniswamy Reddy erroneously he sold 5 acre of land to Dr.R.Muniswamy Reddy and the said Parvathamma and her husband also erroneously sold 10 acres of land to Dr.R.Muniswamy Reddy before grant of land to the said Parvathamma. In Ex.D62 sale deed the vendor has mentioned that R.A. No. 283 / 49- 50 is pending before Revenue Commissioner and he conducting the case and also it is mentioned that the purchaser has to come on record in that case and shall conduct the case. In Ex.D63 sale deed also the same has been mentioned with regard to case No. R.A. No. 283/49-
50. In Ex.D64 sale deed though it was executed after grant dated 09.03.1953, but in this document there is a reference with respect to earlier sale agreement bearing No.4422 and it is mentioned that the same was also handed over to the purchaser Dr.R.Muniswamy Reddy. It is seen from the records that the Government has granted only 3 acres of land each to the above said Nagappa Reddy, Parvathama, Papaiah Reddy and B.Muniswamy Reddy. But prior to the grant itself the said B.Muniswamy Reddy, Parvathamma and Nagappa Reddy have sold more than the extent of grant 81 O.S.No.1440 / 2009 as stated above to the purchaser Dr.R.Muniswamy Reddy. Even though the above said 3 persons have sold more than the extent of 3 acres of land which was granted to them, but the said sale transactions has to be restricted to 3 acres of land each granted to them by the Government.
In the above RENU DEVI's case with regard to applicability of Section 43 of Transfer of Property Act , the Hon'ble Supreme Court has stated that "The rule is that if a man, who has no title whatever to the property, grants it by a conveyance which in form carries the legal estate, and he subsequently acquires an interest sufficient to satisfy the grant, the estate instantly passes".
In the present case, the execution and registration the above said sale deeds by the grantees is not much in dispute. There is no illegality or invalidity attaching with the said deeds. The rule of estoppel by deed would clearly apply. Therefore, on considering the ratio laid down in the above RENU DEVI's case it is stated that by virtue of Section 43 of the Transfer of Property Act , although on the date of sale deeds, the vendors have no title to the property, since each of them were granted 3 acres of land later, the title 82 O.S.No.1440 / 2009 passes to Dr.R.Muniswamy Reddy to an extent of 3 acres of land each i.e. total 12 acre of land in Sy.No. 146 as he perfected by the doctrine of feeding the grant by estoppel. I have perused the ratio laid down in the above cited KARTAR SINGH's case and ZUMMA MASJID MERCARA case and SMT SHARADAMMA's case. The facts of the above cited cases are differ from the facts and circumstances of the present case. Hence, the ratio laid down in the above decisions are not aptly applicable to the present case.
In the circumstances, it is stated that under Ex.D62 to D65 sale deeds R. Muniswamy Reddy had acquired title over total extent of 12 acres of land in Sy.No. 146. After his death his legal representatives were having title and possession over the said property.
97. As per Ex.D4 Revenue document, the legal heirs of deceased Dr. R. Muniswamy Reddy namely, his wife M. Padmavathamma, his children namely M. Vasundra Devi, M. Surendranath, M. Ravindranath and M. Dwarakanath got partitioned their family properties and in the said partition out of the 8 acres of land purchased by the said 83 O.S.No.1440 / 2009 Dr.R.Muniswamay Reddy in Sy.No. 146, an extent of 2 acres of land was allotted to his daughter Smt. Vasundara Devi, an extent of 4 acre of land was allotted to one of his sons M.Surendranath, an extent of 2 acre of land was allotted to one of his sons by name Ravindranath and an extent of 4 acre of land was allotted to one of his sons Dwarakanath.
98. Under Ex.D5 to D14 different registered sale deeds the deceased Sreedharan had purchased 4 acre of land from the above said Surendranath which was allotted to his share in the partition. Further the said Sreedharan had purchased totally 1 acre 24 guntas in the Sy.No. 146 from one H.S.Babu Reddy under Ex.D16 to D19 different sale deeds. Further, the said Pramod had purchased the remaining 1 are 16 guntas of land from the said Babu Reddy under Ex.D24 sale deed.
99. It is not much in dispute that, as stated above, the deceased Dr. M.Muniswamy Reddy had purchased 12 acres of land in Sy.No. 146 from the original grantees Nagappa Reddy, Parvathamma, Papaiah Reddy and B.Muniswamy 84 O.S.No.1440 / 2009 Reddy. In Ex.D32 document in the body of the order the concerned Tahsildar has stated that the Government has granted 3 acres of land each to the above said Nagappa Reddy, Parvathamma, Papaiah Reddy and B. Muniswamy Reddy and Saguvali chit was issued to them on 22.08.1955. Except this 12 acres of land the Government has not granted any land in the remaining 14 acre 13 guntas. Out of this 13 acres 33 guntas was acquired by the KIADB. The remaining land is only 20 guntas.
Bearing in mind the above factual situation in the matter, if we peruse the material on record it is seen that the Government has granted only 3 acres of land to the grantee H.V. Nagappa Reddy on 09.03.1953. Under Ex.D64 sale deed dated 14.09.1953 he sold 6 acres of land to Dr. Muniswamy Reddy, but the said Dr.Muniswamy Reddy is entitled for only 3 acres of land under this document as per Section 43 of the Transfer of Property Act. When the said Nagappa Reddy had already sold his 3 acres of land to Dr.Muniswamy Reddy under Ex.D64 sale deed on 14.09.1953, but the very same Nagappa Reddy had sold 3 acres of land in Sy.No. 146 to one Vasanthaiah under a 85 O.S.No.1440 / 2009 registered sale deed dated 30.05.1956. The said Vasanthaiah later sold the said 3 acres of land to H.S. Babu Reddy under a registered sale deed dated 12.07.1988. Thereafter the said Babu Reddy sold 1 acres 24 guntas out of the said 3 acres to late Sreedharan under Ex.D16 to D19 different sale deeds. Thereafter the said Babu Reddy has also sold the remaining 1 acre 16 guntas of land in Sy.No. 146 to C. Pramod under Ex.D24 registered sale deed dated 02.03.2010.
100. When the grantee Nagappa Reddy had already sold his land which was granted to him to Dr.Muniswamy Reddy during the year 1953 itself, the question of selling the very same property i.e., 3 acres to one Vasanthaiah during the year 1956 does not arise because when once the vendor had already sold his 3 acres of land to the purchaser, again he cannot sell the very same property to another purchaser as he has no salable interest or title over the property which was already sold by him under the registered sale deed. The sale deed which was executed by Nagapa Reddy in favour of Dr. Muniswamy Reddy during the year 1953 is the earlier 86 O.S.No.1440 / 2009 sale deed than the sale deed executed by Nagappa Reddy in favour of Vasanthaiah during the year 1956. Therefore, among these registered sale deeds, priority has to be given to the earlier sale deed dated 14.09.1953 executed in favour of Dr. M. Muniswamy Reddy. In such circumstances, it is stated that as the said Nagappa Reddy had no salable interest in respect of 3 acres of land which was granted to him as he already sold the said property to Dr. Muniswamy Reddy in the year 1953, the subsequent sale deed dated 30.05.1956 exeucted by the said Nagappa Reddy in favour of Vasanthaiah with respect to the very same property has no sanctity in the eye of law and in such circumstances, the said Vasanthaiah do not confer any title and possession of the said 3 acres of land purchased by him during the year 1956. When the said Vasanthaiah had no right over the said 3 acres of land and his sale deed has no sanctity in the eye of law, the subsequent sale deed executed by the said Vasanthaiah in favour of Babu Reddy pertaining to the said 3 acres of land also do not confer any right, title and possession over the property in favour of the said Babu Reddy. So also, as late Sreedharan had purchased 1 acre 87 O.S.No.1440 / 2009 24 guntas under Ex.D16 to D19 different sale deeds from the said Babu Reddy and the said C. Pramod had purchased the remaining 1 acre 16 guntas from the said Babu Reddy under Ex.D24 sale deed, the very same principle also applies to them and therefore, the said Sreedharan and also the said C.Pramod do not derive any right, title and possession over the said 3 acres of land which they have purchased under different sale deeds as stated above from the said Babu Reddy. Therefore, in view of the above facts and circumstances of the case and for the reasons as stated supra it is held that 4 acres of land that was purchased by late Sreedharan from Surendranath and others under the above said different sale deeds do confer valid title and possession over the said 4 acres of land only, but not to any other extent of land in Sy.No. 146. So also the said C. Pramod had no right, title and possession over any portion of land in Sy.No.146 as his vendor has no salable interest to sell 1 acre 16 guntas to him under Ex.D24 document. The identity and location of the above said 4 acres of land purchased by late Sreedharan from Surendranath and others has been mentioned in the sketch which is attached 88 O.S.No.1440 / 2009 to the order passed by the Special Tahsildar, Bangalore North Taluk (Ex.D32) and that is the property in which the said late Sreedharan was having right, title and possession over the same, but not in any other portion of the land in the Sy.No. 146.
101. During the course of arguments, the learned counsel for the plaintiff would submits that preliminary and final notification was issued by the KIADB to acquire the land in Sy.No. 146 and the names of Vasundramm, Surendrnath, Ravindranath and Dwarakanath as the owners and kathedars of the land was shown and their land measuring 12 acres was vested with the Government after passing final notification under the KIADB Act and therefore, the said Surendranath cannot sell the said 4 acres of land to the late Sreedharan and therefore, late Sreedharan had no right over the said 4 acres of land as the same was acquired by the KIADB.
102. As against this, the learned senior counsel for the defendant would submits that as the names of 89 O.S.No.1440 / 2009 Vasundaranamma, Ravindranath, Surendrenath and Dwarakaranth was shown as owners and kathedars in Sy.No. 146, because of the reason their names are mentioned in the Notification issued by the KIADB and that the KIADB came to know that their lands are situated on the western side of the Sy.No. 146 and what is proposed to be acquired under notification is on the eastern side and as such a rectified notification was issued. Further it is argued that once the final notification is issued there is an end of the matter and there cannot be any rectification as contended by the learned counsel for the plaintiff has on force because this argument overlooks the provisions of Section 21 of the General Clauses Act which specifically proves that any notification issued can be rescinded/amended by the Government. The learned counsel for the defendant placed reliance on the decision of our Hon'ble High Court reported in ILR 2005 KAR 4199 - THOMAS PATRAO SINCE DECEASED BY HIS LRS AND ANOTHER VS. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY AND OTHERS.
90 O.S.No.1440 / 2009
103. It is seen from the records that the contents of Ex.D27 letter (date is not legible) sent by the Chief Executive Officer and Executive member of KIADB to the Special Deputy Commissioner (Revenue), Bangalore District shows that the KIADB had issued notification under Section 28 (1) and 28 (4) of KIADB Act to acquire the land in Sy.No. 146 of Hoodi Village. The Government had granted 3 acres of land each to Nagappa Reddy, Papaiah Reddy, B.Muniswamay Reddy and Smt. Parvathamma in Sy.No. 146 and till now no phode was made and that the names of grantees and their legal heirs has been entered in the RTC since the beginning and therefore, by oversight notification was issued under Section 28 (1) and 28(4) of the Act. Further it is mentioned in the letter that the said persons are in enjoyment of another portion of the land in Sy.No. 146, therefore, they do not have forward to get the compensation amount and therefore, it is recommended to grant 13 acres 33 guntas of land to the KIADB in Sy.No. 146. Ex.D26 copy of letter dated 09.02.2004 sent by Special LAO, KIADB to the Special Deputy Commissioner, Bangalore shows that the names of Surendranath, Dwarakanath, Ravindranath and 91 O.S.No.1440 / 2009 Vasundaranath has been entered as Kathedars and Anubhavadars in Notification issued under Section 28 (4) of the Act. In this letter, for the reasons mentioned in the letter the Special LAO has intimated to cancel the names of Kathedars and Anubhavadars in the published 28 (1) and 28(4) of the Notification and informed to make rectified / amended notification. The rectified / amended notification which is present along with this document shows that earlier the names of Surendranath, Dwarakanath, Vasundaramma and Ravindranath were present in Notification issued under Section 28 (1) and 28(4) of the KIADB Act. Thereafter under this rectified notification it has been mentioned that in the notification issued under 28 (1) and 28(4) of the Act it has to be read as 'Sarkari Mufatkaval'. This rectified notification was signed by the Special LAO, KIADB, Bangalore.
104. In the above cited THOMAS PATROS's case while dealing with the Notification issued under Section 28 of the KIADB Act, in para No.26 and 27 of the judgment, our Hon'ble High Court has held that "I have already held that 92 O.S.No.1440 / 2009 acquisition is not complete till possession is not taken by the State Government. Section 21 of the Karnataka General Clause Act, 1899, lays down that whereby any enactment, a power to issue notifications, orders, rules or byelaws is conferred, then that power includes a power, exercisable in the like manner and subject to like sanction and conditions (if any), to add to, amend, vary or rescind any notification, orders, rules or byelaws so issued".............. "Thus, the Statement Government is competent to cancel the notification issued under Section 28 (2) and 28(4) of the KIADB Act by virtue of its power under Section 21 of the Karnataka General Clauses Act and this power can be exercised before taking possession of the lands".
105. If we apply the ratio laid down in the above decision to the facts and circumstances of the present case, it is seen that, in the present case also a rectified / amended notification was issued by the KIADB and in the said rectified notification the earlier names of the said four persons were deleted and in its place it is mentioned that it has to be read as 'Sarakari Mufatkaval'. More over, the 93 O.S.No.1440 / 2009 plaintiff has not placed any material before the court to show that the said Surendranath and others have already taken compensation from the Government after acquiring their lands. Therefore, in view of the above reasons, it is stated that the above contention of the plaintiff has no force at all.
106. This court has already held that the plaintiff has failed to prove the fact that the Government has granted 8 acres of land to the said R. Muniswamy Reddy (father of vendors of plaintiff) in Sy.No. 146 of Hoody village. If that is so, the suit schedule property purchased by the plaintiff from the children of R.Muniswamy Reddy viz., Nagarathna Reddy and Sreenivasa Reddy under Ex.P35 sale deed dated 05.09.2006 do not confer any right, title and possession over the suit property in favour of plaintiff. Because when there is no material on record to show that the Government has granted 8 acres of land to R.Muniswamy Reddy in Sy.No. 146, the vendors of the plaintiff have no right to sell the suit schedule property in favour of plaintiff as they have no any semblance of right over the suit property. Hence, in view of all these 94 O.S.No.1440 / 2009 reasons, it is stated that the plaintiff has failed to prove the fact that he is the absolute owner of the suit schedule property.
107. In the plaint the plaintiff has alleged that after purchase of the suit property he is in possession and enjoyment of the same. In the oral evidence also the PW 1 has reiterated the same. In the cross examination done by counsel for the defendant, PW 1 has stated that, during the pendency of the suit the defendant has constructed the compound wall. It is true that the land described in the plaint schedule is within the compound wall put up over the suit property. But he has denied the suggestion that the said compound wall was constructed earlier to filing of this suit. In page No.23 of the cross examination PW 1 has stated that survey report is the evidence for proving the possession of my vendor over my purchased property.
108. Even though the plaintiff has stated in the plaint and also in the oral evidence that he has been possession and enjoyment of the suit schedule property after purchase of 95 O.S.No.1440 / 2009 the same from its vendors, but the plaintiff has not produced even tax paid receipts pertaining to the property in order to show that his vendors have paid taxes to the Government pertaining to the suit property before he purchased from them. Except the oral testimony of PW 1 there is no other evidence is available on record in order to show that as on the date of suit the plaintiff has been in possession and enjoyment of the suit property. This apart, this court has already held that the plaintiff has failed to prove the fact that the Government has granted 8 acres of land to the said R.Muniswamy Reddy in the suit Sy.No. 146. Further this court has also held that the vendors of the plaintiff has no right, title and possession over the suit property as the Government has not granted 8 acres of the land to the said R.Muniswamy Reddy. In such circumstances, it cannot be said that the plaintiff has been possession and enjoyment of the suit schedule property as on the date of filing of the suit.
109. At the time of arguments, the learned counsel for plaintiff has cited the decision of our Hon'ble High Court 96 O.S.No.1440 / 2009 reported in ILR 2000 KAR 4134 - JOHN B. JAMES AND OTHERS VS. BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER.
At the time of arguments, the learned counsel for the defendants has cited the following decisions.
(1) ILR 1979 KAR 103 - POOJARI PUTTAIAH (BY LRS) AND OTHERS VS. KEMPAIAH.
(2) ILR 2007 KAR 339 - SRI. ARALAPPA VS.
SRI.JAGANNATH AND OTHERS.
(3) MANU/KA/3433/2015 - LAKSHMAMMA AND OTHERS VS. ROOPESH B. & OTHERS.
(4) MANU/WB/0074/1961 - A.E.G. CARAPIET VS. A.Y. DERDERIAN.
(5) MANU/SC/0868/2002 - SARWAN SINGH VS.
STATE OF PUNJAB.
(6) MANU/SC/0168/1969 - GOPAL KRISHNAJI KETKER VS. MOHOMED HAJI LATIF AND OTHERS.
(7) (2019) 3 SCC 191 - BHIMABAI MAHADEO KAMBEKAR VS. ARTHUR IMPORT AND EXPORT COMPANY AND OTHERS.
(8) (2016) 12 SCC 288 - MUDDASANI VENKATA
NARSAIAH (DEAD) THROUGH LEGAL
REPRESNTATIVES VS. MUDDASANI
SAROJANA.
I have perused the ratio laid down in the above decisions. The facts of the above cited decisions are quite 97 O.S.No.1440 / 2009 differ from the facts and circumstances of the present case. Hence the ratio laid down in the above decisions are not aptly applicable to the present case.
Hence, in view of all these reasons, I answer the above issue accordingly.
110. ISSUE No.2: In the plaint the plaintiff has alleged that the cause of action for the suit arose when the Deputy Commissioner had by an order dated 22.12.2008 allowed the Revision Petition with observations and subsequently, when the defendants had managed to get an order of approval through the SEZ authorities and on which basis, on 22.02.2009, when they attempted to interfere with his peaceful possession and enjoyment of in respect of the schedule property and on all dates as to threat of dispossession and interference with the possession continues, within the jurisdiction of this Court. In the oral evidence also PW 1 has reiterated the same.
In issue No.1 this court has already held that the plaintiff has failed to prove the fact that the Government has granted 8 acres of land to R. Muniswamy Reddy in Sy.No. 146 of Hoody Village. Further, this court has already held 98 O.S.No.1440 / 2009 that the plaintiff is not having right, title and possession over the suit schedule property as his vendors also do not have any right, title and possession over the suit property. Issue No.1 is held in the Negative. In the circumstances, it is stated that the alleged interference of the defendant over the suit schedule property as stated by the plaintiff in the plaint and also in the oral evidence is only an imaginary plea just to file the suit before the Court. The plaintiff has failed to prove this issue by placing material evidence.
Hence, in view of all these reasons, I answer the above issue accordingly.
111. ISSUE No.3 In view of the my reasons as stated in issue No.1 & 2 and the conclusion arrived at, I proceed to pass the following:
ORDER The suit of the plaintiff is dismissed. No order as to costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed by him, corrected and then pronounced by me in open court, this the 26th DAY OF APRIL 2019) (H. CHANNEGOWDA) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE 99 O.S.No.1440 / 2009 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri. A. Prakash Babu Documents marked on behalf of the plaintiff/s:
Ex.P1 General Power of Attorney
Ex.P1(a) Notarized Copy of General Power of Attorney
Ex.P2 Copy of Saguvali Chit Extract
Ex.P3 Copy of Mutation Extract
Ex.P4 Copy of Mutation Extract
Ex.P5 Copy of Mutation Extract
Ex.P6to 23 Copies of RTC Extracts
Ex.P24 Copy of Letter dated 22-1-1999
Ex.P25 Copy of Letter dated 9-2-2004
Ex.P26 Copy of Letter dated 22-1-1998
Ex.P27 Copy of Rectified Notification
Ex.P28 Copy of Gazette Notification
Ex.P29 Copy of Draft Notification
Ex.P30 Copy of E.C
Ex.P31 Copy of Mutation Register Extract
Ex.P32 Copy of order passed in W.P No.42890/02
Ex.P33 Copy of Gazette Notification
Ex.P34 Copy of Order passed by the Spl.Deputy
Commissioner in R.P No.42/07-08
Ex.P35 Regd.Sale Deed dated 5-9-06
Ex.P36 Copy of Official Memorandum dt.29-12-1960
Ex.P37 Copy of Form No.II
Ex.P38 Copy of Survey Sketch
Ex.P39 Original Grant Certificate (Form No.II)
Ex.P40 Copy of Official Memorandum dt.29-12-1960
Ex.P41 Copy of Survey Sketch
Ex.P42 Copy of Deposition of DW-1 in O.S No.1379/09
Ex.P43 Copy of Letter dt.Nil
Ex.P44 Copy of Letter dt.2-4-01
Ex.P45 Copy of Letter dt.21-6-01
Ex.P46 Order passed by the Spl.Deputy Commissioner in
R.P No.42/08-09
100 O.S.No.1440 / 2009
List of witnesses examined on bealf of the Defendant/s:
D.W.1. Sri. C. Gopalan Documents marked on behalf of the Defendant/s:
Ex.D1 Copy of General Power of Attorney
Ex.D2 Copy of General Power of Attorney
Ex.D3 Copy of Saguvali Chit Register Extract
Ex.D4 Copy of Mutation Register Extract
Ex.D5 to 14 Copies of Regd.Sale Deeds
Ex.D15 Copy of Official Memorandum dt.30-9-1999
Ex.D16to19 Copies of Register Sale Deeds
Ex.D20to22 Copies of Mutation Register Extracts
Ex.D23 Copy of Official Memorandum dt.16-7-97
Ex.D24 Copy of Regd.sale deed dt.2-3-2010
Ex.D25 Copy of Regd.Lease Deed dt.4-9-08
Ex.D26 Copy of Letter dt.9-2-2004
Ex.D27 Copy of Letter sent by the Chief Executive
Officer, KIADB
Ex.D28 Copy of endorsement dt.18-3-09 issued by the
under Secretary, Revenue Dept.Govt.of
Karnataka
Ex.D29 Copy of Endorsement dt.25-11-08
Ex.D30 Copy of RTC Extract
Ex.D31 Copy of Letter dt.13-12-2001
Ex.D32 Copy of order passed by the Spl.Tahsildar ,
Bengaluru East Taluk in RRT No.119-121/06-07 Ex.D33 Copy of Order passed by the Asst.Commissioner in R.A No.68/196/195/07-08 Ex.D34 Copy of order passed by the Spl.Dy.Commissioner in R.P No.42/08-09 Ex.D35 Copy of Gazette Notification Ex.D36 Copy of Gazette Notification Ex.D37 Copy of Plaint in O.S No.6582/97 Ex.D38 Copy of Memo filed by the defendant in O.S No.6582/97 Ex.D39 Copy of Requisition submitted by FDS,KIADB Ex.D40 Copy of memo filed by the Plaintiffs in O.S No.6582/97 Ex.D41 Copy of Order sheet in O.S No.6582/97 Ex.D42 Copy of application dt.27-12-97 submitted by Nagarathna Reddy & Srinivasa Reddy Ex.D43 Copy of Gazette Notification 101 O.S.No.1440 / 2009 Ex.D44 Copy of Letter dt.22-1-1999 Ex.D45 Copy of Letter dt.22-1-1999 Ex.D46 Copy of order passed in W.P No.42890/02 Ex.D47to51 Copies of Demand Register Extracts Ex.D52to55 Copies of Tax Paid Receipts Ex.D56 Copy of Supplementary Agreement Ex.D57 Copy of Regd. Lease Deed dt.16-7-2008 Ex.D58 Copy of Letter dt.1-3-08 Ex.D59 Copy of Central Govt.Gazette Notification Ex.D60 Copy of BESCOM Receipts Ex.D61 Copy of Regd. Adoption Deed dt.10-4-1924 Ex.D62 Copy of Regd.Sale Deed dt.1-10-1951 Ex.D63 Copy of Regd.Sale Deed dt.1-10-1951 Ex.D64 Copy of Regd.Sale Deed dt.14-9-1953 Ex.D65 Copy of Regd.Sale Deed dt.23-10-1953 Ex.D66 Copy of Regd.Partition Deed dt.25-4-2003 Ex.D67 Copy of Application dt.19-1-1913 Ex.D68 Copy of Endorsement dt.24-1-1913 issued by the Asst.Commissioner Ex.D69 Copy of Application filed under RTI Act Ex.D70 Copy of endorsement dt.18-3-2013 issued by the Tahsildar, Bengaluru South Division Ex.D71 Copy of Application dt.21-8-2012 Ex.D72 Copy of Application submitted under RTI Act Ex.D73 Copy of Tippani Haale Ex.D74 Endorsement dt.13-3-2013 issued on behalf of Dy.Commissioner, Bengaluru Dist. Ex.D75 Copy of Endorsement dt.18-2-2013 issued by the Asst.Commissioner, Bengaluru North Sub- Division Ex.D76 Copy of Endorsement dt.18-4-2013 issued by the Asst.Commissioner, Bengaluru South Sub- Division Ex.D77 Endorsement dt.20-2-2013 issued on behalf of Dy.Commissioner Bengaluru Dist. Ex.D78 Copy of Application dt.20-8-2013 given by C.Pramod 102 O.S.No.1440 / 2009 Ex.D79 Endorsement dt.20-3-2016 issued by Tahsildar (Revenue) Ex.D80 Copy of Enquiry Report issued by Tahsildar (Revenue) Ex.D81 Copy of Reminder Letter dt.10-8-2015 sent by Addl.Commissioner, Office of the Regional Commissioner, Bengaluru Division XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BANGALORE.103 O.S.No.1440 / 2009
Judgment pronounced in the open court (vide separate judgment). The operative portion of the order reads thus -
ORDER XXVII ACCJ, (CCH-38) 104 O.S.No.1440 / 2009