Karnataka High Court
Smt. V. Aruna D/O Ramanjulu Naidu vs Smt. Gowramma D/O Moopooraiah Setty And ... on 18 December, 2007
Equivalent citations: ILR2008KAR923
Author: A.C. Kabbin
Bench: A.C. Kabbin
JUDGMENT A.C. Kabbin, J.
1. This appeal preferred by the 1st defendant in O.S. 1403/1985 on the file of the 1st Addl. City Civil Judge, Bangalore, relates to alleged sale of a property by the second defendant - House Building Co-operative Society Limited in favour of two persons.
2. The suit property is site No. 14 situated in Sy. No. 9 of Gerahalli village in Bangalore North Taluk measuring east to west 30 + 36/2 and north to south 40 feet, in all measuring 1320 sq. ft. or 122.62 sq. meters. The plaintiff (the first respondent) claims to have purchased the said site from the second defendant (the second respondent) Manjunatha House Building Co-operative Society Limited by a registered sale deed dated 23-08-1978. She claims that a few days prior to the date of the suit, i.e., on 20-04-1985, when she visited the site, she found that the first defendant (the appellant), had trespassed over the suit property and had unauthorisedly constructed a small house of about two squares in area on the western corner of the suit property. She therefore instituted a suit for a mandatory injunction directing the first defendant to remove the unauthorised structure.
3. The first, defendant resisted the claim of the plaintiff denying the claim of the plaintiff that she was the owner in possession and enjoyment of the suit, property. She contended that she having purchased site No. 14-A in the said Sy. No. 9 of Gerahalli village for valuable consideration under a registered sale deed dated 26-08-1981 from the second defendant and having constructed a small house in the said site, had taken electricity connection and was in lawful possession of the property. She therefore sought for dismissal of the suit.
4. On 22-03-1989 the second defendant adopted the written statement filed by the first defendant. On these pleadings, the following five issues were framed:
1. Whether the plaintiff proves her lawful possession of the suit, schedule property?
2. Whether the plaintiff proves that the first defendant unauthorisedly has trespassed over suit property and constructed a small house thereon?
3. Whether the plaintiff is entitled for mandatory injunction directing the defendant to remove the structure on the suit property?
4. Whether the first defendant proves that this suit is not maintainable?
5. What relief or order?
5. Subsequently the plaintiff amended the plaint on 01-08-1090 by incorporating a prayer for a declaration of title to the suit property.
6. In response to that, the defendants amended their written statement incorporating a plea that since Sy. No. 9 in which the suit site has been situated, had been acquired by the Bangalore Development Authority and possession of the same had been taken over by Bangalore Development Authority vesting the property in Bangalore Development Authority, the plaintiffs right in the property were completely lost and that the plaintiff did not have any subsisting interest in the suit property to seek a declaration of title to the suit property.
7. The plaintiff was examined as P.W. 1. On the other side, the first defendant was examined as D.W. 1.
8. Thereafter the plaintiff sought for further amendment of the plaint by incorporating a prayer for delivery of possession from the first defendant and for removal of the construction on the suit land. That amendment was effected on 17-11-1994,
9. The first defendant filed additional written statement. It was contended by her that if the plaintiff was unable to locate her property, it was for her to get the records corrected suitably. It was further contended by her that she (the first defendant) had become the full owner of site No. 14-A, wherein she had constructed a house and that the plaintiff cannot seek declaration of title to the property of the first defendant. She specifically contended she had constructed the building in the year 1981 itself and that the suit is haired by limitation.
10. On these pleadings, the following additional issues were framed:
Additional Issue Framed On 11-02-1991:
6. Whether the plaintiff proves her title to suit site?
Additional Issues Framed On 20 12-1991 After Amendment Of Written Statement:
7. Whether defendants prove that entire Sy. No. 9 of Clerahalli, Bangalore North Taluk was acquired by the Bangalore Development Authority?
8. Whether defendants prove that the suit is not maintainable?
Additional Issued Framed On 05-11-1996:
9. Whether the suit is properly valued and the Court fee paid is proper?
10. Whether the suit is barred by limitation?
11. Whether the plaintiff is entitled for declaration sought for?
12. Whether the plaintiff is entitled for possession of suit property?
11. Thereafter further evidence was taken. After hearing the arguments, the learned Trial Judge answered issue Nos. 1, 4, 7 and 9 in the negative and answered issue Nos. 2, 3, 6, 8, 10 and 11 in the affirmative. In the result, he decreed the suit of the plaintiff declaring that the plaintiff is the absolute owner of the suit property and directing the first defendant to remove the construction put up by her in the suit schedule property. She was further directed to deliver vacant possession of the suit property to the plaintiff. It is that judgment and decree passed in pursuance of that judgment, which have been challenged in the present appeal.
12. It is argued by Sri. C.V. Nagesh, learned Counsel for the appellant (the first defendant) that the first defendant being the bonafide purchaser of site No. 14-A, which fact has been proved by the support given by the second defendant-society itself and she having exercised her right as the owner by getting the requisite entries made in the records and also having constructed the house, cannot be deprived of her right only because the plaintiff has got a sale deed in her favour. He submits that even that sale deed in favour of the plaintiff cannot be held to have been proved in accordance with law in the absence of examination of atleast one of the attesting witnesses as required by Section 68 of the Evidence Act. He submits that the first defendant having constructed the house in 1981 itself, she is in lawful possession of the property and none of the reliefs sought for by the plaintiff could have been granted by the Trial Court. Alternatively it is submitted by him that in case the Court were to come to the conclusion that the suit property had intact been sold to the plaintiff, the first defendant's possession being there since 1981, and the relief for possession having been incorporated in the plaint only in November 1994, that relief claimed by the plaintiff was hopelessly barred by time and that therefore the suit ought to have been dismissed.
13. Sri. G. Krishna Murthy, learned Counsel for the first respondent submits that the plaintiffs title had been proved by production of sale, deed and the suit having been filed in 1985 itself for the relief of mandatory injunction to which relief the other two reliefs had been added later, it cannot be said that the suit is barred by time. It is submitted by him that where a party takes up a contention of adverse possession, it is for that party to prove from which date actually the possession become adverse and that therefore taking into consideration the evidence adduced by the plaintiff that a few days prior to the date of the suit, she came to know about the illegal construction, the relief for possession claimed in 1994 was well within time, under Article 65 of the Limitation Act.
14. I have carefully considered both the points. It has to be first seen as to whether site Nos. 14 and 14-A are different and whether the first defendant had purchased any portion of the suit property. The decision on the point is material for the decision of the issue Nos. 6 and 10. The plaintiff had produced the layout plan marked as Fx.P-6, which shows that there is no site as site No. 14-A. In between site Nos. 13 and 14, a road is shown. That mad is to the west of site No. 13 and the east of site No. 14. It is submitted by Sri. C.V. Nagesh, learned Counsel for the appellant that this mad is formed subsequently by the Bangalore Development Authority. Even if that contention is accepted, it is clear that there was no site mentioned as 14-A and site No. 14-A described in the sale deed of the first defendant (the appellant) covers site No. 14. The sale deed dated 23-08-1978 (Ex.P-1) in favour of the plaintiff mentioned the boundaries of site No. 14 as follows:
East by : Road;
South by : Road;
West by : Site No. 15;
North by : Sy. No. 10/4 of Gerahalli
15. The sale deed dated 30-07-1981 in favour of the first defendant (the appellant) shows the following boundaries to site No. 14-A:
East by : Site No. 13;
South by : Road;West by : Site No. 15
North by : Private land.
16. The measurement of the site of 14 and that of 14-A are same, i.e., east to west 36 + 30/2 and north to south 40 ft. When the site No. 14 sold in 1978 itself measured that much, the question of site No. 14-A which has been described in Ex.D-3 as the site east of site No. 14 and west of site No. 13, cannot consist of so much area and therefore while executing the deed, the place shown as road in the layout plan has been shown as site No. 14-A by the second defendant - society. It has to he therefore held that the suit property hears site No. 14 and the site No. 14-A mentioned in the sale deed in favour of the first defendant is the place to the east of site No. 14 and west of site No. 13, wherein even according to the first defendant, the Bangalore Development. Authority has laid down a road. It has to he therefore held that, the claim of the first defendant that the suit property hears site No. 14-A or a portion of the suit property hears site No. 14-A has to he rejected.
17. Now about, the claim of the plaintiff that she has become the owner of the site No. 14, she has produced the original sale deed at. Ex.P-1. The same Honorary Secretary of the second respondent -House Building Society has executed the said sale deed. It is a registered sale deed. The plaintiff has spoken to about the execution of the said sale deed.
18. It is submitted by Sri. C.V. Nagesh, learned Counsel for the appellant that in the absence of examination of atleast one of the attesting witnesses, this document cannot he taken as having proved. In this regard, he relies upon Section 68 of the Evidence Act, which stipulates that if the document is required by law to be attested, it shall not he used as evidence until atleast one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. This requirement is subject to the proviso. The proviso to Section 68 says that it shall not he necessary to call an attesting witness in proof of the execution of the document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, unless its execution by the person by whom it purports to have been executed is specifically denied. It is submitted by Sri. C.V. Nagesh, learned Counsel for the appellant that in view of the denial in the written statement of the first defendant which is adopted by the second defendant that the defendants did not admit the execution of the deed in favour of the plaintiff by the society, it becomes necessary for the plaintiff to prove the document. It is seen that, it is a general denial of the title of the plaintiff and there is no specific denial by the second defendant that the second defendant - society or the Secretary of the society on behalf of the society has not executed Ex.P-1. It has to be therefore held that the execution of Ex.P-1 had been proved by the plaintiff.
19. The sale deed, Ex.P-1, the entry of plaintiffs name in the register of encumbrance extract of which is produced at Ex.P-3, payment of the amount of sale to the society, Ex.P-4, notice issued by the Special Deputy Commissioner for payment, of registration fee on the market value produced at Ex.P-5 and layout plan, Ex.P-6, altogether conclusively show that the plaintiff had become the owner of the site No. 14, i.e., the suit property.
20. Now coming to the documents produced by the defendants, it has to be seen whether they rebut the presumption of Exs.P-1 to P-6 and show that the first defendant had become the owner of the property. The sale deed produced at Ex.D-3 shows that site No. 14-A has been sold to the first defendant by the second defendant. As already observed the site mentioned here include both site No. 14 and the place, which is stated to have been converted into a mad in between site No. 14 and site No. 13. Therefore, the sale deed is in respect of a non-existent site. By this, the first defendant did not get any right, title or interest in the property sold. Even otherwise site No. 14 having already been sold by the second defendant, to the plaintiff in 197R, there was no such site which could have been sold to the first defendant. Therefore the defendant did not get any right, or interest in the suit property. All other documents which she has produced can be useful only to show her possession. Admittedly she was in possession of the suit property as on the date of the suit, but the evidence clearly discloses that she did not become owner of the suit property and that the site sold to her by the second defendant was non-existent. For the above said reasons, this Court confirms the findings of the Trial Court on issue No. 4 which held that the plaintiff has proved her title to the suit site.
21. Now coming to issue No. 10 that is linked with issue No. 7 which has been framed on the contention of the defendants that the entire Sy. No. 9 of Gerahalli village, Bangalore North Taluk, having been acquired by the Bangalore Development Authority, the plaintiff is not entitled to the declaration. It has been admitted by both the parties at the time of the arguments in appeal that Sy.No.9 of which the suit property is a part had been acquired by the Bangalore Development Authority and the certified copy of the award has been kept in the records. Though that award has not been marked, it was not been disputed by either of the parties I shows that Sy.No.9 of Gerahalli was included after Acquisition, in the regularisation and re-allotment of sites in Srinivas Nagar layout comprising Sy. Nos. 2 to 14, 21 and 22 of Gerahalli village and the award was passed directing the B.D.A to deposit the compensation amount, since the sites were he re-allotted to the respective owners after examining the title documents and collection of layout charges. That award was passed on 16-11-1979. It is therefore clear that the acquisition had taken place in 1979 much prior to the alleged sale deed executed in 1981 by the second defendant in favour of the first defendant. The question that arises is whether this comes in the way of a Court granting a declaratory relief to one of the parties on the basis of the claim in between the parties.
22. Section 16 of the Land Acquisition Act is relied upon the appellant in this regard. The said section provides that when the award is made and the Collector takes possession of the land, it shall vest thereupon absolutely in the Government, free from all encumbrances. The award and symbolic possession taken by the Bangalore Development Authority in furtherance of the award no doubt vests the land in the Bangalore Development Authority free from all encumbrances, but that does not bar the Courts from determining the rights of the parties, the rights of the parties had at the time of the acquisition. On the basis of such determination, the Bangalore Development Authority may choose either to give compensation or to re-allot the site to the persons who are lawfully entitled to, since the very intention of the acquisition is for forming sites and allotting them to needy persons. The determination of the rights by the Courts is in between the parties and the acquisition of Sy. No. 9 by the Government, for the purpose of Bangalore Development Authority forming the sites does not disentitle the plaintiff from getting declaratory relief as against the defendants.
23. Now coming to issue Nos. 2, 3 and 11, the decision on which issues the claim of the plaintiff for declaratory relief will have to he finally decided, it is specifically contended by the first defendant (the appellant) that she is in possession of the property since 1981 and that the relief for declaration having been sought for in 1990, three yearn after the cause of action arose and the relief of possession having been sought for in 1994 when the amendment of the plaint was made, the claim was clearly barred by time. In this regard, Sri. C.V. Nagesh, learned Counsel for the appellant, has placed reliance on the decision of the Supreme Court in Vishwambhar and Ors. v. Laxminarayana (Dead) through L.Rs. and Anr. . That was a case in which sales of certain lands made by the plaintiffs' mother had been challenged on the ground that the sale deeds were ab initio void and were, not binding on the plaintiffs since they were effected during their minority without legal necessity and without the requisite permission of the Court for such alienation. Later amendment of the plaint was sought for, for introducing a prayer to set aside the sale deeds to the extent of plaintiffs' share and for possession of the land. It was held that such amendment changed the basis of the suit and requisite averments for such reliefs could not have been said to have been already there and that therefore the suit for setting aside the sales could he taken to have been filed only after the amendment of the plaint was allowed and not earlier than that.
24. learned Counsel for the appellant relies on the deposition of the appellant as D.W. 1 wherein she has specifically contended that the building on the suit property was constructed in 1981 and the document produced her to show her possession continuously. Ex.D-4 is the endorsement issued by the Special Deputy Commissioner regarding payment of deficit registration fee paid by the first defendant towards the purchase of site No. 14-A, Exs.D-5, D-6 and D-7 are certain payments made the first, defendant in favour of the Citizens Committee, Gerahalli Extension, Srinivas Nagar, to show that she was residing there, Ex.D-8 is the endorsement given by the Bangalore Development Authority requiring the first defendant to produce requisite document with regard to the allotment of site No. 1364 sought for by her and similar endorsements of the Bangalore Development. Authority given on 29-09-1986 for receipt of an application for allotment of site No. 1364 (Exs.D-9 and D-10). All these documents are subsequent to 20-04-1985, the date of the suit and there is no dispute by the plaintiff that, from a few days prior to 1985, the first defendant is continuously in possession. It has to be seen therefore whether that assertion of the first defendant in her written statement and also in the evidence that she constructed a house in 1981 may be accepted as conclusive evidence that her possession from 1981 remains uninterrupted.
25. Where a person sets up a plea of adverse possession, the burden is on him/her to show that from a particular date or period, he/she is in uninterrupted possession adverse to the interest of the true owner. Admittedly the sale deed for site No. 14-A itself was executed in favour of the first defendant on 26-08-1981. The house of the first defendant could have been constructed on the suit site only thereafter.
26. Admittedly no plan or sanction of the competent authority to put up the construction was taken by the first defendant. She also has not produced from which date she has taken electricity connection to the constructed building. Therefore mere say that in 1981 immediately after the allotment of the site, she constructed the house, cannot be accepted, particularly when the plaintiff has specifically stated that she was visiting her site once in three or four months and that she noticed the constructed house only a few days prior to the date of the suit, i.e., on 20-04-1985.
27. In this regard, Sri. G. Krishna Mnrthy, learned Counsel for the first respondent (the plaintiff) has pointed out a suggestion made on behalf of the first defendant's counsel in the cross examination when P.W. 1 was examined on 12-03-1998, which reads as under:
ft is true that they have constructed a house ahout 14 to 15 years back wherein she is residing there.
28. This shows that, according to the first defendant the house was constructed around 1984 or so. That fits into the allegation of the plaintiff that a few days prior to the institution of the suit she noticed the construction. If it is taken that the house was constructed in 1984 or even in 1983, relief of possession claimed in 1994 cannot be termed as barred by time. Even in respect of relief of declaration, the period of three years is from the time the cause of action arose and the denial of title of the plaintiff by the first defendant was when the first defendant, filed the written statement on 22-03-1989. The amendment of plaint, including the relief of declaration of title was made in 1990 and therefore it was also not barred by time. Consequently the findings of the Trial Judge have to he affirmed and issue Nos. 2, 6, 7 and 11 have to be answered in the affirmative and issue Nos. 1, 4, 8 and 10 have to be answered in the negative. Consequently, the judgment of the Trial Court decreeing the suit in favour of the plaintiff has to be affirmed.
29. This suit is one of many eases which arises out of greedy and unscrupulous persons manning the House Building Societies. Demand for house sites is on rise in places like Bangalore and in majority of cases, the persons who seek house sites want sites for construction of houses for their own use. A person aspiring for a house site in such cities pours all his savings into such acquisition with the fond hope that he will have a shelter to reside with his family. If such tendency of the persons controlling House Building Societies in selling non-existent site or selling the same site to different, persons is allowed to continue and the Courts shut eyes to such transactions when such deceit is brought to the notice of the Court, it will be travesty of law if the Court acts as a helpless spectator.
30. In a suit for a relief specifically sought for by the plaintiff, Court will not normally consider the grant of an equitable relief in favour of the defendant, unless he has sought for it. But in cases like the present one, where the dispute is regarding an immovable property which admittedly belonged to a House Building Society and allotment is made in favour of two persons or one of the sites is non-existent, one alienation being clearly to dupe the purchaser, there is no need to drive the aggrieved party to another suit to recover the damages suffered by him. Where the House Building Society is a party to such proceedings, it is the duty of such House Building Society to place before the Court as to who is the real purchaser. Where the Court finds that the claim of one of the parties is genuine and alienation in favour of the other party by the House Building Society is to dupe that person, the Court can, in appropriate cases, by exercising its inherent power under Section 151 of the Code of Civil Procedure direct the House Building Society to make good the loss notwithstanding the fact that no such prayer is made by the duped party in the suit. It is also time that the State Government thought of introducing a legislation to make such House Building Societies particularly office hearers of the society liable for penal action to curb such menace.
31. In the present case, the House Building Society appeared along with the first defendant, but later remained absent. It did not answer the claim of the plaintiff as to how the sale deed was executed in favour of the defendant. No. 1 (the appellant) by the society in respect, of a non-existent site. It is not the case of the society that Ex.P-1 or even Ex.D-3 are forged documents. They are the documents executed on behalf of the House Building Society. In the appeal also, the second defendant has remained absent by the act of the second defendant, not only the first defendant did not get any right over the property which the society is purported to have sold under sale deed Ex.D-3, she will loose the amount invested for construction of the house. The ends of justice require that she should be compensated the second defendant. Therefore though there is no separate suit filed the 1st defendant (appellant) with regard to this, the rights of the parties can very well be determined in this suit in the interest of justice. The act of the respondent No. 2 in selling a non-existent site to the appellant (1st defendant) making her to believe that the property of the plaintiff was the properly sold to her requires that the defendant No. 2 compensated suitably the defendant No. 1. The property cannot he worth less than Rs. 1,00,000/-, Ends of justice require that the second defendant shall pay in the present suit the said amount to the 1st defendant on the 1st defendant paying requisite Court fee on the said amount with notice to the 2nd defendant within six months herefrom.
32. For the above said reasons, the appeal is dismissed, but the costs of the respondent No. 1 (the plaintiff) and the appellant (the first defendant) shall be paid by the second respondent (the second defendant). It is ordered under Section 151 of the Code of Civil Procedure that the second defendant shall pay damages of Rs. 1,00,000/- (Rupees One lakh) to the first defendant, if the first defendant, pays in the Trial Court the requisite Court fee, within three months herefrom.
A decree shall be drawn accordingly.