Karnataka High Court
Sri H Muniyappa Since Dead By Lrs vs The Commissioner on 25 April, 2026
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO. 278 OF 2009 (DEC)
C/W
REGULAR FIRST APPEAL NO. 436 OF 2009 (INJ)
IN R.F.A. NO. 278/2009
BETWEEN:
1. SRI H MUNIYAPPA
SINCE DEAD BY LRs.
1(a) SMT. GOWRAMMA
AGED ABOUT 68 YEARS
R/AT NO.2373/F,
9TH CROSS, 1ST MAIN
RPC LAYOUT, VIJAYANAGAR
BANGALORE - 560 040.
1(b) SMT. AMARAVATHY M.,
D/O LATE H. MUNIYAPPA
Digitally AGED ABOUT 52 YEARS
signed by
SUMA B N RESIDING IN THE 1ST FLOOR OF
Location: PROPERTY BEARING NO.2373/F
HIGH 1ST MAIN, 9TH CROSS
COURT OF R.P.C. LAYOUT, VIJAYANAGAR
KARNATAKA BANGALORE - 560 040.
... APPELLANTS
(BY SRI. S. SATHYARTHY, ADVOCATE FOR
SMT. SUJNANESHWARI SHETTY, ADVOCATE FOR A1(a & b)
AND:
1. THE COMMISSIONER
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BANGALORE DEVELOPMENT
AUTHORITY
KUMARA PARK WEST
BANGALORE - 560 020.
2. SRI. SANNSWAMY SETTY
S/O SRI SANNAPPA SETTY
SINCE DEAD BY LRS
2(a) SMT.SAROJAMMA
W/O LATE SANNA SWAMY SHETTY
AGED ABOUT 70 YEARS
2(b) SRI.HARISH S
S/O LATE SANNA SWAMY SHETTY
AGED ABOUT 52 YEARS
2(c) SRI.SATHISH S
S/O LATE SANNA SWAMY SHETTY
AGED ABOUT 47 YEARS
ALL ARE RESIDING AT No.2372/C,
1ST MAIN, RPC LAYOUT, VIJAYANAGAR
BANGALORE -560 040.
... RESPONDENTS
(BY SMT. ASHWIN S. HALADY, ADVOCATE FOR R1;
SRI. G. NAGARAJULU NAIDU., ADVOCATE FOR C/R2(a) to (c)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
20.01.2009 PASSED IN OS.NO. 1354/1999 ON THE FILE OF
THE V ADDL.CITY CIVIL JUDGE, BANGALORE CITY,
DISMISSING THE SUIT IN RESPECT OF DECLARATORY RELIEF
AND DECREED IN RESPECT OF PERMANENT INJUNCTION.
IN R.F.A. NO. 436/ 2009
BETWEEN:
1. SANNASWAMY SETTY
S/O SANNAPPA SETTY
-3-
SINCE DEAD BY LRS
1(a) SRI. HARISH S.,
S/O LATE SANNA SWAMY SETTY
AGED ABOUT 52 YEARS
1(b) SRI. SATISH S.,
S/O LATE SANNA SWAMY SETTY
AGED ABOUT 47 YEARS
2. SMT SAROJAMMA
AGED ABOUT 58 YEARS
W/O SANNAPPA SWAMY SETTY
ALL R/AT NO.2373/C,
9TH CROSS, I MAIN,
RPC LAYOUT, VIJAYANAGAR
BANGALORE - 560 040.
... APPELLANTS
(BY SRI. G. NAGARAJULU NAIDU, ADVOCATE)
AND:
1. H. MUNIYAPPA
SINCE DEAD BY LRS
1(a) SMT GOWRAMMA
W/O H.MUNIYAPPA
#2373/F, 9TH CROSS
1ST MAIN, RPC LAYOUT
VIJAYANAGAR,
BANGALORE.
1(b) AMARAVATHY M.,
D/O LATE H. MUNIYAPPA
AGED ABOUT 52 YEARS
R/AT 1ST FLOOR OF
PROPERTY BEARING NO.2373/F
1ST MAIN, 9TH CROSS,
RPC LAYOUT, VIJAYANAGAR
BANGALORE - 560 040.
... RESPONDENTS
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(BY SRI. KRISHNA S. VYAS., ADVOCATE FOR R1 & R2(NOC)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
20.01.2009 PASSED IN OS.NO.7503/1993 ON THE FILE OF THE
V ADDL.CITY CIVIL JUDGE, BANGALORE CITY, DECREEING
THE SUIT FOR PERMANENT INJUNCTION.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD
AND RESERVED ON 16.02.2026 FOR JUDGMENT COMING ON
FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S.KAMAL
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL) These two appeals are from a common judgment and decree dated 20.01.2009 passed in O.S.No.7503/1993 and O.S.No.1354/1999 on the file of V Additional City Civil and Sessions Judge, Bangalore City, by which the trial Court has decreed the suit in O.S.No.7503/1993 restraining the defendants therein from encroaching the suit property and has though dismissed the suit in O.S.No.1354/1999 for relief of declaration, partly decreed granting relief of permanent injunction restraining defendants therein from interfering with the plaintiff's possession over the marginal land until he was evicted by due process of law.
-5-2. Both the aforesaid suits were filed by H. Muniyappa.
Suit in O.S No.7503/1993 is against Sannashetty Swamy and his wife Sarojamma. Suit in O.S.No 1354/1999 is against the Commissioner, Bangalore Development Authority and the aforesaid Sannashetty Swamy.
3. Facts is O.S.No.7503/1993:
(a) Subject matter of this suit is property being rear portion of Site No. 2373/F situated at 9th Cross, First Main, RPC Layout, Vijayanagar, Bangalore, measuring 2 feet by 5 feet, bounded on the East by:
Government margin land, West by: plaintiff's property, North by: remaining portion of the plaintiff's property and South by: defendant's property.
(b) It is the case of plaintiff-H. Muniyappa that he is the owner of Property bearing No.2373/F situated at 9th cross, first main road, RPC layout Vijayanagara-
Bangalore, measuring East to West 70 +75/2 and North to South 30 feet same having been allotted in his favour by the Bangalore Development Authority in the year 1975. Possession certificate was issued and a lease cum sale agreement was executed. Subsequently a deed of sale dated 09.07.1991 was executed by Bangalore Development Authority in -6- favour of the plaintiff. The plaintiff has been in possession and enjoyment of said property.
(c) That there are three sites on the southern side of the plaintiff's property bearing Site Nos.2373/A to 2373/C. Defendant No.1- Sannashetty is the owner of property bearing Site No.2373/C.
(d) That on 13.12.1993, defendant No.1- Sannashetty and his wife- defendant No.2 tried to demolish existing compound wall facing towards plaintiff's property to the extent of 5 feet East to West and were further making arrangement to dig and put up compound wall in the said portion of the property. That the defendant-Sannashetty and his wife have stored material for putting up compound wall by installing three pillars. Plaintiff lodged a complaint to the Bangalore Development Authority and also to the police. Again on 21.12.2003 defendants tried to encroach upon the said property. That the defendants have no manner of right, title and interest over the said property measuring 2 feet x 5 feet. As such sought for permanent injunction.
4. Defendants filed written statement admitting the plaintiff to be the owner of property bearing 2373/F and contending:
(a) that on the southern side of the property of the plaintiff there existed only two sites bearing -7- Nos.2373/A and 2373/B and there is no third side as claimed by the plaintiff. It is contended property of the defendant is not adjoining the southern side of the plaintiff's property but it is partly adjoining the eastern side of the plaintiff's property.
(b) Allegations of defendant putting up the compound wall on the southern side of the plaintiff's property, demolishing and threatening to demolish the existing compound wall facing the plaintiff's property to the extent of 5 feet x 2 feet are denied.
(c) It is contended that defendants are the absolute owners of the property bearing No.2373/C and that they have put up a compound wall of mud construction about 5 years back on the southern side of their property which is situated on the eastern side of the plaintiff's property. That the plaintiff had requested the defendants to run his sewerage illegally adjoining the northern side of the compound wall of the defendant and led the sewerage water to a open drainage which is on the eastern side of the defendant's property. Due to spreading dampness to the compound wall of the defendant, compound wall on the northern side of the property of defendant collapsed on 05.12.1993.
Defendants had contacted the corporation authorities and the area Corporator and had brought to their notice the illegal acts of the plaintiff. Defendant on 06.12.1993 engaged a mason, removed the debris of the collapsed compound wall and commenced the work -8- of erecting new compound wall on the existing foundation, duly strengthening it on his plot. The compound wall both on the western and the northern side of the property are situated within his land and the defendants have not encroached upon the property of the plaintiff. The construction of the compound wall was completed on 20.12.1993. Hence sought for dismissal of the suit.
5. Facts in O.S.No.1354/1999:
(a) It is the case of plaintiff-H. Muniyappa that his property bearing No.2373/F, though measuring East to West: 70 +75 /2 and North to South 30 feet, extends upto, sewerage water drainage on its eastern boundary as mentioned in the documents issued by the Bangalore Development Authority. That the plaintiff has been in possession of the property upto the said sewerage water drain on the eastern side.
(b) That there are three sites on the southern side of the plaintiff's property which bear Site Nos.2373/A to 2373/C. Defendant No.2-Sannashetty is the owner of property bearing Site No.2373/C. Defendant No.1-
Bangalore Development Authority has no manner of right, title and interest to deny the title of the plaintiffs in respect of the property No.2373/F upto the sewerage water drain on the eastern side.
-9-(c) That upon the wrong advice and under mistake of fact, plaintiff had made a representation to the defendant No.1- BDA that he was entitled for document in respect of clear measurement of the site in total allotted to him within the boundary referred to in title documents, which matter was dragged and resulted in unwarranted litigation.
(d) That at the instigation of defendant No.2, defendant No.1 allotted portion of the suit property as marginal land in favour of defendant No.2 and also executed a registered deed of sale, even though the defendant No. 1-BDA had no right over the said portion of land. The proceedings and order of the Defendant No.1- BDA bearing No.808/ 97-98 dated 19.03.1998 is illegal and not binding on the plaintiff.
(e) That at the instance of defendant No.2 officials of defendant No.1 had come near the suit property on 23.10.1990 at about 11.30 a.m. and threatened to demolish the watchman shed put up by the plaintiff and also tried to cut and remove the coconut trees existing on the eastern portion of the property belonging to the plaintiff.
(f) Plaintiff caused issue of legal notice dated 16.11.1998 to the defendants. During the pendency of the said suit, defendant No.1 executed registered deed of sale dated 19.02.2003 in favour of defendant No.2 in respect of portion of the property measuring
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East to West on the northern side 19.9 feet and on the southern side 24 feet, North to South on the eastern side 29.6 feet and on the western side 26.6 feet. In the said area there is a watchman shed and coconut trees put up by the plaintiff.
(g) Defendant No.1 has no right, title and interest to sell the said property in favour of defendant No.2 as the plaintiff has perfected the title in respect of the entire property upto the sewerage water drain on eastern side. Hence sought for decree of declaration of title and permanent injunction.
5. Defendants 1 and 2 filed separate written statement in O.S.No.1354/1999.
(a) Defendant No.1 admitted that the plaintiff is the allottee of Site No.2373/F and also admitted plaintiff having been issued possession certificate and also obtaining the deed of sale dated 09.07.1991.
(b) It is contended that initially plaintiff was allotted site measuring 30 feet by 40 feet and thereafter on an application of the plaintiff has been issued with a possession certificate in respect of site measuring East to West 70 +75/2 and North to South 30 feet and executed registered deed of sale. While the defendant was allotted Site No.2373/C, Which is measuring 34 + 26 /2 feet X 40 feet.
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(c) It is contended both the plaintiff and defendant No.2 had applied for allotment of marginal land which is situated on the eastern side of the site bearing No.2373/F. That on consideration of both the application defendant No.1- BDA allotted the marginal land in favour of defendant No.2. Plaintiff had challenged the same before the High Court by filing a writ petition in W.P.No.9034/1998 which was dismissed. Plaintiff has no right over the marginal land and he cannot claim possession over the same. Defendant No.1 has stated that the marginal land is on the rear portion of Site No.2373/C, over which the plaintiff has put up watchman shed and he is in illegal possession of the same.
6. Defendant No.2 in his written statement contended that:
(a) He is an allottee of site No.2373/C and he has been in possession ever since the date of allotment.
(b) That writ petition filed by the plaintiff in W.P.No.9034/1998 seeking quash of allotment of marginal land in favour of defendant No.2 has been dismissed. Aggrieved by which plaintiff filed W.A.No.4880/1998 which is also dismissed.
(c) Plaintiff is in possession of property measuring 70+75/2x30 ft whereas the defendant is in possession of 34+26/2 x40 ft. The marginal land therefore allotted in favour of defendant No.2 which has attained finality.
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(d) The allegation of collusion attributed to officers of defendant No.1 BDA and defendant No.2 is denied.
Hence, sought for dismissal of the suit.
7. Based on the pleadings, trial Court framed the following issues:
O.S.No.7503 of 1993:
(i) Do plaintiff prove that the defendant is interfering with the possession of the suit property by making arrangement to dig a compound wall and put up construction over a compound wall of the plaintiff's property?
(ii) Do plaintiff prove that he is in lawful possession of the suit property?
(iii) To what relief?
In OS No. 1354 of 1999 following issues:
(i) Does plaintiff prove his title over the schedule property? OR Does the plaintiff, in alternative prove that he has perfected his title over schedule property by adverse possession?
(ii) Does the plaintiff prove that the sale deed dated 19.02.2003 executed by defendant No.1 in favour of defendant No.2 and registered on 22.02.2003 is not binding on him?
(iii) Does the plaintiff prove that he is entitled for relief of permanent injunction?
(iv) What order or relief?"
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8. Common evidence in both the suits has been recorded. Two witnesses have been examined on behalf of the plaintiff and exhibited 20 documents marked Exhibits P1 to P20. Defendants have examined three witnesses as DW1 to DW3. DW1 has failed to tender himself for cross-examination.
As such, his evidence has been discarded. Defendant No.2 Sannashetty examined himself as DW2. 20 documents have been marked on behalf of defendants as Exhibit D1 to D20.
Court Commissioner was examined as CW1 and marked two documents as CW1 and CW-2.
9. On appreciation of the evidence, trial Court answered the issues as under:
O.S.No.7503 of 1993: Issue Nos.1 and 2 in the affirmative O.S.No.1354 of 1999 : Issue Nos.1 and 2 in the negative and Issue No.3 in the affirmative.
10. Consequently, the trial Court granted relief of injunction in O.S.No.7503/1993 in favour of the plaintiff restraining the defendants from encroaching upon the suit property and partly decreed the suit in O.S.No.1354/1999, granting relief of permanent injunction, restraining the defendants from interfering with the plaintiff's possession over
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the disputed property, that is, the marginal land until he was evicted by due process of law and dismissed the suit in respect of declaratory relief.
11. Being aggrieved by dismissal of suit in O.S.No.1354/1999 to the extent of relief of declaration, plaintiff is before this Court in RFA 278/2009. Being aggrieved by the grant of injunction in O.S.No.7503/1993 defendant is before this Court in RFA No.436/2009.
12. Learned counsel appearing for the plaintiff/ appellant in RFA No.278/2009 submitted:
(a) that the plaintiff was originally allotted site bearing No.2373/F measuring East to West 30 feet North to South 40 feet on 06.06.1977. After the allotment, it was found that additional land was available in view of shifting of the sewerage water drain to further East, in furtherance to which, a revised allotment letter was issued including the marginal land as part of the said Site No.2373/F showing the measurement as East to West 70 +75/2 and North to South 30 feet.
(b) Bangalore Development Authority had demanded payment of additional consideration in view of the increase of the area. On payment of additional sum in respect to the land which was lying between the
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site and the sewerage water drain, the BDA issued revised possession certificate including the said marginal land making it an integral part of the Site No.2373/F. A lease-cum-sale agreement was also issued. Consequently deed of sale dated 09.07.1991 was executed showing the boundaries to the East of the marginal land as sewerage water drain. The plaintiff had paid the difference in the value of the site. Ever since then the plaintiff has been in possession and enjoyment of said property by enclosing a compound wall. Plaintiff had obtained a sanction plan from the local authority and had put up a residential building thereon. That from 06.06.1977 till date filing of the suit in O.S.No.1354/1999 plaintiff remained in possession of the said additional land openly, continuously and in hostile manner adverse to the interest of defendant No.2 who has been allotted site No.2373/C measuring 30 feet by 40 feet.
(c) That Plaintiff had earlier filed suit for bare injunction in O.S.No.7503/1993. Subsequently he filed a suit for declaration and injunction against defendant No.1-BDA and defendant No.2. That the trial Court though has accepted that the plaintiff has produced the documentary evidence in support of his claim for the suit property has however failed to grant the relief of declaration of his title.
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(d) The trial Court has also found plaintiff to be in possession of the additional land. The trial Court has erred in opining that plaintiff has not proved his title having been perfected by adverse possession against the defendants.
(e) The trial Court has failed to appreciate that after execution of deed of sale by the BDA in favour of the plaintiff, conveying the suit schedule property including the marginal land falling within the boundaries mentioned therein, nothing remained for BDA to convey anything further in favour of defendant No.2. As such execution of deed of sale, conveying the marginal land in favour of defendant No.2 by the BDA is invalid and non est in the eye of law.
(f) The trial Court has failed to appreciate the principles that if there are any discrepancies in the dimensions, the boundaries would prevail. That in the instant case the boundaries of the property in possession of the plaintiff had been consistently shown in the possession certificate, lease cum sale agreement as well as the deed of sale. The possession of the plaintiff has been admitted by the defendants. The plaintiff has planted and grown two coconut trees and has put up a shed in the additional land. This aspect of the matter has even been established through the report of the Commissioner.
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(g) In view of the aforesaid material document and oral and documentary evidence that has been brought on record, the trial Court ought to have declared plaintiff to be the absolute owner of entire extent of land falling within the boundaries mentioned in the deed of sale.
(h) In support of his submission, he relied upon the judgment of the Apex court in the case of Raveendra Kaur, Greval and others Vs Manjeet Kaur and others reported (2019) 8 SCC 729. Relying upon the said judgment, the learned counsel for the appellant submitted that the plaintiff having been in possession of the property for over 12 years has perfected his title by way of adverse possession and in terms of the law laid down by the Apex Court, the plaintiff is entitled to seek declaration of his title having perfected the same by way of adverse possession.
(i) He also relied upon the Judgment of Apex Court in the case of Subhaga and others Vs Shobha and others reported in (2006) 5 SCC 466, to contend that once the Commissioner had identified the property by the boundaries, the trial Court ought to have accepted the same.
(j) He also relied upon the judgment of the Co- ordinate Bench of this Court dated 29.02.2016 passed in R.S.A No.1498/2005 connected with R.S.A
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No.1497/2005 between Krishnappa and Ramegowda wherein the principle "boundaries prevail over the measurements" has been followed.
(k) He relied upon another judgment of the Co-
ordinate Bench of this Court in the case of
Narasimha Shastri Vs Mangesha Devaru,
reported in ILR 1988 554 to contend in
ascertaining the actual area sold, recitals as to the boundaries should prevail.
Thus learned counsel for the appellant submitted that the suit filed by the plaintiff for declaration is required to be decreed. Hence seeks for allowing of the appeal.
13. Per contra learned counsel appearing for the defendant No.2 submitted:
(a) that originally plaintiff was allotted site measuring 30x40 ft. Similarly defendant was also allotted site measuring 30x40 ft. That there was a sewerage water channel which was flowing in the middle of the site which was allotted to the defendant. Accordingly the said channel was shifted due to which there was availability of additional land.
(b) The plaintiff was allotted additional land and a deed of sale was also executed. The marginal land being claimed by the plaintiff is in addition to the
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land which was already given to the plaintiff. That plaintiff had sought for allotment of said additional land by making an application dated 28.12.1991 produced Exhibit D3. Similarly defendant also had made an application on 16.03.1998-Ex.D4 seeking allotment of the said additional land. Officers of Defendant No.1- BDA had inspected the spot and had recommended allotment of the additional marginal land in favour of the defendant No.2.
(c) That the plaintiff had filed a writ petition in W.P.No.9034/1998 challenging the allotment of additional area in favour of the defendant No.2 which came to be dismissed by this Court on 29.07.1998. As against which, plaintiff had preferred Writ Appeal in W.A.No.4880/1998, which also came to be dismissed by Order No.22.10.1998 as per Exhibit D10. After dismissal of the said writ petition and writ appeal, the Defendant No.1-BDA issued an endorsement confirming the allotment of additional marginal site in favour of the defendant No.2 by issuing an endorsement on 11.04.2002 as per Ex.D7 and had also called upon the defendant No.2 to pay the additional amount of Rs.54,032/- towards the additional land which has been paid by the defendant. On payment of the said sum the Defendant No.1 BDA has executed a deed of sale dated 19.02.2003 in favour of the defendant No.2 as per Ex.D8.
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(d) Thus the defendant No.2 has been in possession and enjoyment of the said property and the plaintiff has no right, title and interest in the said property. That the trial Court has rightly dismissed the suit of the plaintiff. Plaintiff has no right to continue to remain in possession of the said portion of the land.
Hence seeks for dismissal of the appeal.
14. Learned counsel for defendant No.2 in support of the grounds urged in RFA No.436/2009 submitted:
(a) that the trial Court erred in granting relief of injunction in favour of the plaintiff solely based on the report of the Commissioner who has erroneously concluded that an extent of 2 ftx5ft of the area fell within the sital area of the plaintiff.
(b) Though the injunction was sought alleging interference to the extent of 2 ft North to South, the trial Court has granted injunction to the extent of 2.5 feet.
(c) That there is no encroachment by the defendant No.2 over any portion of the property belonging to the plaintiff.
(d) That the trial Court ought to have held 2.5 feet of area claimed by the plaintiff was within the boundaries of site bearing No.2373/C belonging to the defendant forming part of the marginal area.
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15. Heard and perused the records.
16. Points that arise for consideration are:
(i) Whether the plaintiff is entitled for relief of declaration that the sale deed dated 19.02.2003 executed by defendant No.1- Bangalore Development Authority in favor of defendant No.2 is invalid?
(ii) Whether the plaintiff has proved that he has perfected title over the marginal land by adverse possession?
(iii) Whether the plaintiff has proved that defendant is causing interference in his possession and enjoyment of portion of the suit property as alleged?
17. Admittedly plaintiff was initially allotted site bearing No.2373/F measuring East-West 30 feet North-South 40 feet on 09.07.1976 in terms of letter of allotment produced at Exhibit P5. A possession certificate was also issued. Subsequently there appears to be discovery of existence of additional land between the site allotted to the plaintiff and its eastern boundary. Accordingly plaintiff was called upon to pay the additional sum of consideration for this extent of additional land and upon payment of which as seen at Exhibit P2, the defendant No.1-BDA executed a deed of sale dated 09.07.1991. The measurement of the site as mentioned therein is East to West 70 + 75/2 feet, North to South 30 feet. The boundaries mentioned in the said deed of sale are East by:
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SWD (sewerage water drain), West by: Road, North by:Site No. 2373/D and 2373/E. South by: Site Nos. 2373/A, B, and C. A possession certificate has also been issued depicting the aforesaid measurement and boundaries.
18. Plaintiff has availed financial assistance by deposit of said title deeds for the purpose of construction of his house. A sanction plan has been issued as per Exhibit P7, perusal of which would also indicate the sanctioned plan having been issued in respect of the site measuring North to South 30 feet East to West 70 feet + 75/2. There appears to be no dispute with regard to these aspects of the matter i.e., plaintiff having been allotted the aforesaid site No.2373/F measuring East to West 70+75/2 and North to South 30 feet.
19. Dispute seem to have arose where the plaintiff has claimed existence of further additional land between eastern end of his site and the sewerage water drain.
20. For proper appreciation of the topography of the site bearing No.2373/F admittedly belonging to the plaintiff and the site bearing No.2373/C admittedly belonging to defendant No.2 as well as the disputed marginal land, scanned copy of sketch as per Ex.D1 is extracted hereunder for immediate perusal:
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21. It is not in dispute that after allotment of the sites to the plaintiff and the defendant, the sewerage water drain that existed on the eastern side seemed to have been shifted further, which has given rise to existence of additional land.
22. Though the plaintiff has set up a claim of he having perfected title over his additional land by way of adverse possession, which is denied by the defendant, it is necessary at this juncture to note the plaintiff himself has made an application on 28.12.1991 as per Exhibit D3 to the defendant No.1 BDA, contents of which read as under:
"®UÀvÀÄÛ: ¥Áè£ï, ¦.¹:PÀAzÁAiÀÄ gÀ²Ã¢ ¢£ÁAPÀ:28£Éà r¸ÉA§gï 1991 UÉ, ಸ ಾಯಕ ಾಯ ಾ ಹಕ ಪ ಮ ಾಗ, ©.r.J. PÁA¥ÉèPïì ಜಯನಗರ, ೆಂಗಳ ರು-40 ¸Áé«Ä, ಷಯ B ೈಟು ಸಂ ೆ! 2373:ಎ# $ಾ% & 'ಾ!ಂ( ಬ*ೆ+.
ತಮ- ಗಮನ ೆ. ಈ ಮೂಲಕ ತರುವ34ೇ6ೆಂದ8ೆ, 9ೕಲ.ಂಡ ೈಟು ಅಂದ8ೆ 30- 00, 70-75 £À£Àß ºÉ¸ÀjUÉ 1975gÀ°è C¯ÁèlÄ D¬ÄvÀÄ. 1977 gÀ°è ¥ÉƶµÀ£ï ಸ< = ೇ> ?ೆ*ೆದು ೊಂಡ ನಂತರ 1984ರ@A ಮ6ೆಯನುB ಕ<C4ೆ. ಇದ ೆ. ತಮ- EFಾಟು 9ಂ< ಂದ ಮಂಜೂ8ಾG ಸಹ ಪHೆIರು?ೆJೕ6ೆ.
ಆದ8ೆ, ಇದರ@A ಸು$ಾರು 12X30 $ಾ% & 'ಾ!ಂ( ಇ4ೆ. Lಂ4ೆ 4ೊಡM NೕO ಇ4ೆ. ಕಳP ಾಕರ ಭಯ ರುವ3ದOಂದ, ಾಸ6ೆRಂದ ಾಂFೌಂ( ಾT4ೆUೕ6ೆ. ಈ $ಾ% & 'ಾ!ಂ( VಾOಗೂ ೊಡಲು ಬರುವ3IWಲ. ಾರಣ, ೇ8ೆ 4ಾO ಇಲA. ಏ6ೇ ಆದರೂ ನನ*ೆ ೇOದ8ೆ $ಾತZ ಅನುಕೂಲ ಾಗುತJ4ೆ. ಇದರ ಬ*ೆ+ $ಾ% & 'ಾ!ಂ( ನನ*ೆ ೊಡುವ ಬ*ೆ+ 2-3 ಅ% ೊ[ೆC.
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ಇದುವ8ೆ ಗೂ \-ಂದ Vಾವ ಪZGQæ] ಬರ@ಲA. ಮ?ೆJ 6ಾನು 10 ವಷ @ೕeï ಮು^ದ ತ_ಣ ೇW Eೕ( I6ಾಂಕ 9-7-91 ರಂದು ತಮ- ಆ=ೕ` ಂದ ಪHೆIರು?ೆJೕ6ೆ. I6ಾಂಕ 28-12-91 ರಂದು ತಮ- ಆ=ೕ` ಂದ aೆ.ಇ. ಬಂದು ಮ6ೆ ºÀwÛgÀ §AzÀÄ ªÀiÁfð£ï¯ÁåAqï §UÉÎ «ZÁgÀuÉ ªÀiÁr ªÀÄvÀÄÛ «f¯Áå£ïì¤AzÀ ಬಂI4ೆ ಎಂದು ೇbದ 6ಾನು ರೂWc ಪZ ಾರ ಮ6ೆ ಕ<C4ೆ. $ಾ% & ¨sÀÆ«ÄUÉ PÁA¥ËAqÀÄ ºÁQzÉ. DzÀÝjAzÀ £ÁªÀÅ ¸ÀܼÀ ¥Àj²Ã°¹ £ÉÆÃr $ಾ% & 'ಾ!ಂ( ನನ*ೆ ಾಯಂ $ಾಡ ೇ ಾ^ ೋO4ೆ. ಇದ ೆ. ಕಟC ೇ ಾದ ಹಣ ಕಟCಲು 6ಾನು ತVಾO4ೆUೕ6ೆ".
23. Similarly defendant No.2 who has admittedly allotted Site No. 2373/C measuring towards East 30 feet, North 40 feet, which is situated on the southern side of the property of the plaintiff, also had made an application seeking allotment of this additional marginal land by filing an application dated 16.03.1998 as per Exhibit D4.
24. Defendant No.1- BDA on considering the applications has proceeded to reject the application filed by the plaintiff and decided to grant the additional land in favour of the defendant No.2.
25. In the meanwhile plaintiff had filed a Writ petition in W.P.No.29180/1997 against the BDA seeking direction to consider his application dated 13.12.1996 for allotment of the marginal land lying on the eastern side of his site bearing No.2373/F. The Co-ordinate Bench of this Court by order dated
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20.10.1997 upon the submission made by the learned counsel for the BDA disposed of the said petition directing it to consider the application in accordance with law within a period of two months. Apparently non consideration of the said direction led to plaintiff initiating the contempt proceedings in CCC No. 1253/1998. The said proceedings however were dropped by order dated 26.08.1998 as the BDA had issued an endorsement on 28.02.1998.
26. Plaintiff thereafter had filed a writ petition in WP No.9034/1998 seeking quash of the endorsement dated 19.03.1998. The Co-ordinate Bench of this Court dismissed the said writ petition by order dated 29.07.1998 declining to entertain the challenge by the plaintiff. The observations made by this Court in the said order as found at paragraphs 7, 8 and 9 are extracted hereunder for immediate perusal:
"7. The next question required to be examined by this Court is, the BDA represented by its commissioner has taken into consideration the dimension of the site which was allotted in favour of the petitioner and the second respondent has come to the conclusion that, the extent of site allotted in favour of the petitioner is 2175 square feet whereas the extent of site allotted in favour of the second respondent i.e. Site bearing No.2373/C is to an extent of 1200 sq. ft. This must have weighed very much in the mind of the Commissioner while considering the claim of the second respondent to exercise his discretionary. power and granted the marginal land in favour of the second respondent. Exercise of discretionary power by the Authority cannot be interfered with by this Court in exercise of its power under Article 226 of the Constitution of India, unless in shown exercise of discretionary power by the authority for extraneous reasons or
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the basis of incorrect facts. The authority while examining the case of the petitioner and the second respondent has taken into consideration the total extent of the site allotted in their favour and granted the marginal land in favour of the second respondent. In my view, the allotment of marginal land in favour of the second respondent is perfectly in order and the same is justified for the reason that the first respondent has taken relevant fact of smaller dimension site was allotted in his favour. Further, the petitioner is not entitled for allotment of marginal land as per his own statement made by him in this petition with regard to the fact that he had unauthorisedly put up the compound wall in the land in question. This Court has to exercise its power in favour of persons who are law abiding citizens. Admittedly the petitioner has stated that he has put compound wall and a watchman shed and planted coconut trees. This conduct of the petitioner clearly goes to show that he has violated the rule of law, "person who has violated the rule of law", this Court should not go to the rescue of such person. This is an additional point which has been taken into consideration by this Court for not interfering with the impugned order passed by the first respondent in favour of the second respondent.
8. In addition to the reasons stated above, consideration of application for allotment of marginal land is not a legal right vested with the petitioner. It is for the authority to consider the case of the petitioner. At the time of consideration, the BDA has taken into consideration the application of the petitioner and the second respondent and it has satisfied that the second respondent was more deserving person than the petitioner. This Court cannot substitute its opinion with the opinion of the BDA with regard to subjective satisfaction arrived at by the Authority the first respondent herein.
9. Further, the submission made at the bar on behalf of the petitioner that the Commissioner was not competent authority under the Act is mis-placed in view of submission made at the Bar on behalf of the first respondent that exercise of power by the first respondent is in pursuance of delegation of power upon him under Sec.62 of the Act. Therefore, this contention of the petitioner also does not survive for consideration.
For the reasons stated above, the petitioner is not entitled for any relief. Hence, this writ petition is dismissed. No costs."
27. Thus, the Co-ordinate Bench of this Court had taken exception to the conduct of the plaintiff to have occupied the said marginal land by putting up a compound wall and the
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watchman shed and planting the coconut tree as he had violated the rule of law. The said order was challenged by the plaintiff by filing a writ appeal in WA No.4880/1998. The Division Bench of this Court dismissed the said writ appeal thereby confirming the order passed by the learned single Judge. Subsequent to dismissal of the said writ petition, the Bangalore Development Authority issued an endorsement dated 11.04.2002 at Ex.D7 which read as under:
ಸಂ ೆ! ೆಂಆ¥Áæ Bಉ ಾ-3:2373/c 2002-03. DAiÀÄÄPÀÛgÀªÀgÀ PÀbÉÃj RPC ¨ÉAUÀ¼ÀÆgÀÄ C©üªÀÈ¢Þ ¥Áæ¢üPÁgÀ ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ: 11.04.2002.
»A§gÀºÀ «µÀAiÀÄ : Dgï.¦.¹. §qÁªÀuÉAiÀÄ ¤ªÉñÀ£À ¸ÀASÉå: 2373B¹ EzÀPÉÌ ºÉÆA¢PÉÆAqÀAvÉ ºÀAaPÉ ªÀiÁrgÀĪÀ CAa£À ¤ªÉñÀ£ÀªÀ£ÀÄß gÀzÀÄÝ¥Àr¹gÀĪÀ DzÉñÀªÀ£ÀÄß »AvÉUÉzÀÄPÉÆAqÀÄ CAa£À ¤ªÉñÀªÀ£ÀÄß ¹ÜjÃPÀj¸ÀĪÀ §UÉÎ.
G¯ÉèÃR B 1. CAa£À eÁUÀzÀ ºÀAaPÉ ¥ÀvÀæ ¸ÀASÉå : ¢£ÁAPÀ 11.04.1998.
2. »A§gÀºÀ ¸ÀASÉå. ¨ÉAC¥Áæ B GPÁ-3B174B98-99. ¢£ÁAPÀ:22.08.1998
3. ªÀiÁ£Àå £ÁåAiÀiÁ®AiÀÄzÀ qÀ§Äèöå¦ £ÀA.9034:B98, ¢£ÁAPÀ:29.07.1998 gÀ DzÉñÀ ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ಸಂಬಂf`ದಂ?ೆ, ಮ*ೆ ಈ Lಂ4ೆ ಉ'ೆAೕgತ ಪತZ-1 ರಂ?ೆ ಆh.i.`.ಬHಾವjಯ ೇಶನ ಸಂ ೆ!.2373B` ಇದ ೆ. ೊಂI ೊಂಡಂ?ೆ ಇರುವ ಅಂlನ aಾಗವನB ಹಂl ೆ $ಾE ಅಂlನ aಾಗರ ಹಂl ೆ ಪತZವನB ೕEದುU, ನಂತರ, ಅದನುB FಾZf ಾರವ3 6ಾ!Vಾಲಯದ ಆ4ೇಶದಂ?ೆ ಸದO ಅಂlನ aಾಗದ ಹಂl ೆಯನುB ಉ'ೆAೕR-2 ರಂ?ೆ Lಂದ ೆ. ಪHೆIರುವ3ದು ಸOಯmೆC. ಆದ8ೆ, ಉ'ೆAೕಖ-3 ರ@Aನ ªÀiÁ£Àå GZÀÑ£ÁåAiÀiÁ®AiÀÄzÀ ಆ4ೇಶ ಉ'ೆAೕgತ ಪತZ-3 ರಂ?ೆ ನದO ಅಂlನ ೇಶನ ೆ. ೕEದ ಅಂlನ aಾಗದ ಆ4ೇಶವನುB Lಂ?ೆ*ೆದು ೊಂEರುವ ಆ4ೇಶವ£ÀÄß gÀzÀÄÝಪE`, ಈ Lಂ4ೆ ಮ*ೆ ಸದO ೇಶನ ೆ. ೕಡ'ಾ^zÀÝ ಅಂlನ aಾಗದ ಹಂl ೆಯನುB ಈ ಮೂಲಕ ¹ÜjÃPÀjಸ'ಾ^4ೆ.
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ಆದುದOಂದ, ಈ ಬ*ೆ+ ೕವ3 ಸಂ4ಾಯ $ಾಡ ೇ ಾ^ರುವ ಸದO ಅಂlನ aಾಗದ ಾT $ೌ®å ರೂ.54,032-00 (ಐವ?ಾB®ÄÌÀ ಾ ರದ ಮುವ?ೆJರಡು gÀÆFಾRಗಳp) ಗಳನB ಕೂಡ'ೇ ಸಂzÁAiÀÄ $ಾE ಚಲ£ï ತಂದು ಒisಸಲು ¸ÀÆa¸À¯ÁVzÉ.
28. In furtherance thereof the Bangalore Development Authority has also executed a deed of sale dated 19.02.2003 in favour of the defendant-Sannaswamy Shetty conveying title in respect of the said additional marginal land.
29. From the above discussion and analysis, it becomes clear that plaintiff himself had made an application as per Ex.D3 to the defendant No.1-BDA seeking allotment of the marginal land on eastern side of his site. Non-consideration of the said application by defendant No.1-BDA resulted in plaintiff, preferring writ petition and writ appeal. Plaintiff had also challenged the endorsement granting of said additional marginal land by defendant No.1 BDA in favour of defendant No.2, which challenge has been declined and dismissed. The resolution of the defendant No.1-BDA to allot the marginal land in favor of the defendant No.2 has been upheld by this Court and same has attained finality. Execution and registration of deed of sale 19.02.2003 by defendant No.1-BDA in favor of defendant No.2 is in furtherance to the resolution. The plaintiff
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therefore could not have resorted to file the present suit seeking declaration of the said deed of sale dated 19.02.2003 being illegal.
30. Further plaintiff cannot also seek declaration of his right by adverse possession as the law in this regard is well settled. Plaintiff having approached the defendant No.1-BDA and this Court in writ petition and writ appeal seeking grant of marginal land and the said relief and remedy having been declined and rejected, cannot distance himself by merely stating that making of such an application was on a wrong advice and mistake of facts. Even otherwise law in this regard is well settled.
31. The Apex Court in the case of Karnataka Board of Wakf Vs Govt. of India, reported in (2004) 10 SCC 779 at paragraph 11 has held as under:
11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-
use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful
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owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] , Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567].) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and
(e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128] .]
32. There is neither any pleading in the plaint nor evidence complying with the aforementioned position of law, enabling the plaintiff to seek declarative relief on adverse possession .
33. The trial court in the considered view of this Court, therefore has committed no error in rejecting the relief of declaration as sought for by the plaintiff.
34. The trial Court has, however, granted relief of permanent injunction in favor of the plaintiff against the defendants, not to interfere with possession of the plaintiff over the said portion of marginal land until evicted with due process of law.
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Points answered accordingly.
35. In the case of Maria Margarida Sequira Fernandes and others Vs. Erasmo Jack D Sequeira (dead) though LRS. reported in (2012) 5 Supreme Court Cases 370 the Apex Court approving the findings of the Delhi High Court on the issue of due process of law in the case of Thomas Cook (India) Ltd. v. Hotel Imperial has held as under:
Due process of law
79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.
80. The High Court of Delhi in Thomas Cook (India) Ltd. v. Hotel Imperial (2006 (88) DRJ 545 held as under
"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing--ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the
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person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
We approve the findings of the High Court of Delhi on this issue in the aforesaid case."
36. Consequently, Apex Court directed the plaintiff therein to deliver and handover the vacant possession of the property to the defendant therein.
37. Coordinate Bench of this Court in the case of Narayanamma, and others versus Rajappa and another in RSA No.2681/2007 connected with RSA No.2702/2007 in a suit for declaration and possession, relying upon the judgment of the Delhi High Court in the case of the Thomas Cook India LTD., judgment of Apex Court in the case of Margarida
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supra, as well as in the case of Sri Babagouda Lakhamgouda Patil and Smt.Dundhawwa and others proceeded to grant the relief in the nature of direction to the plaintiffs therein to handover the possession of the suit property to defendant therein. Paragraphs 33 to 35 of the said judgment of the Co-
ordinate Bench of this Court are as under:
33. If the ratio in the aforementioned judgments is borne in mind, in a case of this nature, the decree for possession in favour of the defendants who are held to be the owners without possession, and the plaintiffs whose claim relating to ownership both under a sale deed and by way of adverse possession is answered in negative, is a judicial compulsion and just a formality.
34. The right to pass such a decree for possession in favour of the defendants in a suit for declaration and injunction filed by the plaintiffs, after adjudication of the rights of the parties is indeed traceable to inherent power of the Court which is not conferred by statute, but which is recognised and saved in Section 151 of the Code of Civil Procedure, 1908.
35. The only technical aspect would be the payment of Court Fee by the defendants in whose favour the decree is passed. The suit property is an agricultural land assessed to land revenue. The market value for the purpose of payment of Court fee would be 25 times of the revenue payable on the suit land which is Rs.43/-. Thus, valuation for Court Fee would be Rs.1,075/-.
Defendants are required to pay Court Fee of Rs.27/- which is far less than the expenditure that would be incurred by the Court towards the stationery in deciding the suit, if initiated by the defendants. Nevertheless to complete the formality, the defendants shall pay Rs.27/- towards Court Fee to enable the Registry to draw the decree for possession.
38. Even in the instant case the rights of the parties having been adjudicated and defendant No.2 having been held to be the owner of the marginal land, directing him to seek
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eviction of the plaintiff therefrom would be an unwarranted and avoidable exercise. This Court, therefore deems it appropriate to direct the plaintiff to deliver and handover the vacant possession of the marginal land, which has been allotted and conveyed by defendant No.1-BDA in favor of defendant No.2 within a period of three months. Defendant No.2 shall pay the applicable court fee in this regard.
39. As regards RFA No.436/2009 filed by the defendant No.2 being aggrieved by grant of permanent injunction in O.S.No.7503/1993 in favour of the plaintiff to the extent of 5 ft East to West 2 ft North to South, the trial Court as seen at paragraph 23 of the impugned Judgment has referred to the report of the Commissioner and the sketch which is marked as Ex.C1. The memo of instruction of the plaintiff has been marked as Ex.C2. In the commissioner report the property of the plaintiff is shown by letters ABCD and the disputed portion of the property is shown by letters BEFC which is the marginal land.
40. Defendants have produced layout plan as per Ex.D2 and D5. Site No.2373/F is shown to be situated towards northern side of site Nos.2373/A, 2373/B, 2373/C.
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41. Commissioner has found defendant attempting to encroach upon the south eastern corner of the property of plaintiff to the extent of 2 ft 6 inches shown at point GC.
42. Since this Court has already come to the conclusion that the plaintiff can claim his right, title and interest to an extent of 70+75/2 x30 in site No.2373/F and defendant No.2 being the owner in possession of site bearing No.2373/C which include the marginal land, the trial Court injuncting defendant No.2 from encroaching upon the area falling within the boundaries of site No.2373/F measuring 70+75/2 x30 cannot be found fault with. It is however clarified that notwithstanding the dispute with regard to area of alleged encroachment, the defendant No.2 shall not interfere within the area forming part of site No.2373/F as noted above.
Accordingly the following:
ORDER
1. RFA No.278/2009 filed by Muniyappa is dismissed.
Consequently O.S.No.1354/1999 is dismissed in its entirety.
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2. Muniyappa (since deceased by his Lrs.) who are appellants in RFA No.278/2009 are directed to vacate and deliver vacant physical possession of marginal land granted in favour of Sannaswamy Shetty (since deceased by his Lrs.) within 90 days.
3. Sannaswamy Shetty (since deceased by his Lrs.) shall pay the court fee to the extent of grant of relief of possession as above.
4. RFA No.436/2009 filed by Sannaswamy Shetty (since deceased represented by Lrs.) is dismissed. Consequently Judgment and decree passed in O.S.No.7503/1993 restraining the defendants from encroaching upon the suit property is confirmed.
Draw decree accordingly.
Sd/-
(M.G.S. KAMAL) JUDGE SBN