Bangalore District Court
Krishna Murthy S vs Ganganarasaiah on 4 January, 2024
KABC010175932001
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26)
Dated this the 04th day of January, 2024
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.4879/2001
Plaintiff: Mr.S. Krishna Murthy
Since Dead, Represented by his LRs
1(a) Mrs.Nagarathna
s/o: Late S. Krishna Murthy
aged about 50 years
1(b) Mrs.Yashaswini
d/o: Late S. Krishnamurthy
aged about 38 years
1(c) Ms.Nalini K.N.
d/o: Late S. Krishna Murthy
aged about 27 years
1(d) Mr.Vidyashankar
s/o: Late S. Krishna Murthy
aged about 23 years
All are r/at: No.275E
Near TCH College
Muneshwara Block
Anjanapura Main Road, Harinagar
Bangalre-560 062.
(By Jaypee Associates, Advocates)
v/s
Defendants: 1) Mr.Ganganarasiah @
Gangaswamaiah
Since dead by his LRs
a) Smt.Sunanda
w/o: Srirangappa
d/o Late Ganganarasaiah,
2 O.S.No.4879/2001
aged about 50 years,
Gangenahalli, Bangalore.
b) Sri. Ganesh
s/o: Late Ganganarasaiah
aged about 47 years.
c) Sri. Kumar s/o: Late
Ganganarasaiah
aged about 40 years
d) Ms.Sunitha d/o: Late
Ganganarasaiah
aged about 38 years.
No.1(a) to (d) are r/at No.17/2, Old
No.246, 'E' Main Road, Muneshwara
Block, Palace Guttahalli, Bangalore-
560 003.
2) Smt. Kempamma
W/o Mr. Ganganarasaiah @
Gangaswamaiah
Aged about 40 years
r/at No.22, Old No.246 Muneshwara
Block, 'E' Main Road
Palace Guttahalli
Bangalore-560 003.
(By Sri. T. Ravindra, Adv.)
Date of institution of the suit 23.03.2001
Nature of the suit For Declaration, possession,
permanent & mandatory
injunctions, mesne profits
Date of the commencement
of recording of evidence 14.02.2018
Date on which the judgment
pronounced 04.01.2024
Total duration Years Months Days
22 09 12
(SAVITRI SHIVAPUTRA KUJJI)
X Addl. City Civil & Sessions Judge,
Bengaluru.
3 O.S.No.4879/2001
JUDGMENT
This suit is filed by the plaintiff Sri. Krishna Murthy against the defendants for the relief of possession of schedule property, declaration that he is the absolute owner of suit schedule property and for consequential relief of mandatory injunction directing the defendants to demolish the structures put up on the suit schedule property, restraining them from interfering with his possession over the suit schedule property and for award of mesne profits.
2. The brief facts leading to the plaintiff's case are summarized as under:-
The subject matter of the suit is detailed in the schedule of the plaint which is said to be an immoveable residential property being the southern portion of the site No.246, new Corporation No.18, 'E' Main Road, Muneshwara Block, Bengaluru together with the structures thereon. The plaintiff has urged that the schedule property was acquired by one Mr.Sampangiraman under a registered sale deed dated 28.10.1966 who thereafter sold the same to one K.P. Chinnaswamy under a registered sale deed dated 28.04.1972 and thereafter the said Chinnaswamy sold the said property to one Mr.S. Nanjappa under a registered sale deed dated 11.01.1974. It has been stated that the said property measures east-west 30 feets and north-south 15 feets is the southern portion of the larger extent of property No.246. It has been further carved out that the said purchaser Nanjappa was put in possession of the schedule property who had put up small residential tenements comprising of three units and let out to the same to the tenants. The plaintiff has further stated that one of the tenants was Mr.Ganganarasaiah the present defendant No.1 and as the said Nanjappa was employed in a Bank and was posted outside Bengaluru, one Mr.Srinivas Reddy was collecting 4 O.S.No.4879/2001 the rent on behalf of Nanjappa and defendant No.1 was paying a monthly rental amount of Rs.150/-. It has been further carved out that thereafter the schedule property was included within the administrative jurisdiction of Bengaluru City Corporation and the said Nanjappa paid arrears of property tax for the years 1983-84 and layout charges to the Bengaluru City Corporation. It is further stated that the said Corporation having collected the betterment charges, registered the name of Nanjappa as khathedar of the suit schedule property in the revenue records. The said Nanjappa also said to have paid property tax to the Corporation and subsequently he sold the schedule property to the plaintiff under a registered sale deed dated 20.02.1991. The plaintiff accordingly said to have obtained the transfer of khatha in his name and has been paying tax to the Corporation and after the sale of the schedule property, the tenancy was orally attorned in favour of the plaintiff. Thus, he said to had filed an eviction suit against the tenants in HRC Nos.2045/1991, 2046/1991 and 2047/1991 before the Court of Small Causes, Bengaluru which came to be dismissed. It has been further stated that the defendant No.1 had set up other tenants to deny the title of the plaintiff over the schedule property and after dismissal of the eviction petitions filed by the plaintiff, the defendant No.1 started claiming to be the power of attorney holder under a POA allegedly executed by one Smt.Jayamma claiming that she has executed a sale deed dated 12.02.1999 and the purchaser is none other than the wife of defendant No.1 i.e., defendant No.2. It is further urged that the property purchased by defendant No.2 was sold by defendant No.1 as an attorney holder of Smt.Jayamma with respect to the northern portion of the property site No.246 which was shown to be bounded by towards east-road, west- property No.247, north by property No.225 and south by remaining half portion of the 5 O.S.No.4879/2001 property No.246 and this property is said to be measuring east-
west 30 feets and north-south 12 feets as per the claim of the defendants. The plaintiff has further stated that the property purchased by defendant No.2 from defendant No.1 as stated above is with respect to northern portion of the property No.246 whereas the schedule property purchased by the plaintiff is the southern portion of the said property and defendant Nos.1 & 2 are residing in the said northern portion of the property allegedly purchased by them. However it is alleged that taking advantage of the situation of the plaintiff as he is an handicapped person and after dismissal of the eviction petitions filed by him, defendant Nos.1 & 2 illegally encroached upon the schedule property by removing the other two tenants from the schedule property by using threat and force and the defendants are said to be in illegal and unlawful occupation of the schedule property of which the plaintiff is the lawful owner. It has been further stated that the defendants have no manner of right, title and interest over the schedule property which is southern portion of the old site No.246 purchased under a valid sale deed whereas the defendants claim to be the owners of the northern portion and encroached upon the southern portion belonging to the plaintiff and thereby dispossessed him from the schedule property which is the only property belonging to the plaintiff. He claims to have produced relevant documents to establish his lawful ownership over the schedule property. It is further alleged that without obtaining permission and sanction from the competent authority, the defendants have illegally put up structure over the schedule property which is liable to be demolished at their cost. It is further alleged that they are fully aware of the fact that they have no manner of right over the schedule property and that inspite of the same, taking advantage of dismissal of the eviction proceedings 6 O.S.No.4879/2001 filed by the plaintiff, now the defendants are alleged to be illegally squatting over the schedule property and dispossessed the plaintiff from the said property and therefore the plaintiff is entitled to declaration regarding his title over the schedule property since the same has been denied by the defendants. It is further alleged that as the defendants are unauthorizedly and unlawfully holding the schedule property, they are liable to pay damages to the plaintiff @ Rs.2,500/- p.m. till the delivery of possession of the suit schedule property to the plaintiff and therefore the plaintiff has urged that he has got prima-facie case and balance of convenience in his favour and he is the absolute owner of the schedule property and therefore he has to come up with the present suit seeking the comprehensive relief for possession of the schedule property from the defendants, for declaration regarding his title over the suit schedule property, for mandatory injunction for removal of the unauthorized structures put up by the defendants on the suit schedule property and for consequential relief of permanent injunction restraining them from interfering with his possessory rights over the suit schedule property along with damages and hence the suit.
3. In pursuance of service of suit summons, defendant Nos.1 & 2 entered their appearance through their counsel and filed their written statement denying the claim of the plaintiff. The defendant No.1 claims to be the son of one late Sri. Gangaiah whereas defendant No.2 is said to be the wife of defendant No.1 and both are said to be residing in property No.17/2 (Old No.246), 'E' Main Road, Muneshwara Block, Palace Guttahalli, Bengaluru. It is specifically denied that the property bearing No.246 was originally the larger extent of the site bearing No.246, Pipeline Layout, Pushpanagar, Sheshadripuram, Bengaluru as referred to in the plaint schedule as claimed by the plaintiff. It is further 7 O.S.No.4879/2001 denied that it was originally acquired by R. Sampangiraman as claimed by the plaintiff. It is contended that the material particulars as to from whom the said Sampangiraman purchased the said property and how his vendor acquired the said property and the details of the said transactions are not furnished by the plaintiff. On the contrary it is contended by the defendants that the said Sampangiraman had never purchased site No.246 nor was in its possession at any point of time. It is further denied that he thereafter sold the said property to Chinnaswamy. It is contended that even if he sold the said property in favour of Chiannaswamy, the said purchaser Chinnaswamy had not acquired any right, title or interest over property No.246 since the said Sampangiraman himself had no valid title or interest over the said property. Thus the alleged sale deed dated 28.04.1972 in favour of Chinnaswamy has been specifically denied by these defendants. The subsequent claim of the plaintiff that the said Chinnaswamy sold the said property to one Nanjappa in the year 1974 is also denied by these defendants. It is contended that the alleged sale deed of 1974 in favour of Nanjappa does not convey any title in his favour since the original title of the alleged vendors itself is disputed. It is further denied that the schedule property is the southern portion of the larger extent of the property No.246 as claimed by the plaintiff. The alleged possession of Nanjappa over this property, his putting up residential tenements, inducting tenants therein etc., have also been denied by these defendants. They have denied the alleged possession of Nanjappa over the said property. It is further denied that one of the tenants was defendant No.1 under Nanjappa. On the other hand, it is the specific contention of the defendants that defendant No.1 was residing in the said property in his own right and he was not a tenant under anybody much less under the said Nanjappa. It is 8 O.S.No.4879/2001 further denied that as Nanjappa was employed in a Bank and was posted outside, one Srinivasa Reddy was collecting rent on his behalf. It is the contention of the defendants that the said Nanjappa and Srinivas Reddy are total strangers to the suit schedule property No.246 which is in occupation of these defendants. Therefore the further claim of the plaintiff that defendant No.1 was paying monthly rental of Rs.150/- is also denied by them. It is further denied that the said Nanjappa subsequently paid arrears of property tax, betterment charges etc., as claimed in the plaint. According to the defendants, these documents do not convey any title over the schedule property in favour of the plaintiff as they are got up documents by the plaintiff by colluding with the officials of the Corporation. It is further denied that after collecting betterment charges the name of Nanjappa was mutated as khathedar of the suit schedule property in the revenue records as claimed by the plaintiff. It is contended that the Corporation has no jurisdiction to collect betterment charges from the person who is not the owner of the property and hence, it is contended that as such the alleged payment of betterment charges if any, does not make the said Nanjappa as owner of the suit schedule property. His alleged payment of tax is also denied. The defendants have further denied that subsequently the said Nanjappa sold schedule property to the plaintiff in the year 1991 as claimed by the plaintiff. It is contended that since Nanjappa himself had no title over the schedule property, no valid title has been conveyed to the plaintiff under the alleged sale deed and therefore the execution of the said sale deed is also disputed by the defendants. It is further denied that on the basis of the said sale deed, the plaintiff obtained khatha in his name as claimed by him. It is further denied that pursuant to the said sale deed the tenancy was orally 9 O.S.No.4879/2001 attorned to the plaintiff as claimed by him. It is contended that there are no tenants in the schedule property nor the said Nanjappa was landlord and therefore there is no question of any attornment of tenancy in favour of the plaintiff. It is contended that the plaintiff had filed false eviction petitions before the Small Causes Court and rightly the Court had dismissed the said petitions on 17.03.1998 holding that there was no relationship of landlord and tenant and further observed that the sale deed on the basis of which the plaintiff had sought for eviction of defendant No.1 from the suit schedule property cannot be linked to the schedule property in occupation of the defendants. It is contended that the said order passed in the HRC proceedings operates as res-judicata to the present suit and on this count also the defendants have sought for dismissal of the suit. It is further contended that since the title of the plaintiff was denied by the defendant No.1 in the year 1991 itself in those eviction proceedings, the plaintiff ought to have sought for declaration of title within three years from the date of such denial, but the suit in the present form brought in the year 2001 is said to be hopelessly barred by time and on this count also the same is sought to be dismissed. It is further denied that defendant No.1 has set up other tenants to deny the plaintiff's title over the schedule property as alleged. It is contended that no person is in occupation of the schedule property as tenant since the same exclusively belongs to these defendants. However it is admitted that defendant No.1 as the PA holder of Smt.Jayamma, who was the owner of the schedule property, executed sale deed dated 12.02.1999 in favour of defendant No.2 and it is further contended that even prior to the said sale deed, these defendants were in possession of the suit schedule property. The defendants have further denied the claim of the plaintiff that he had 10 O.S.No.4879/2001 purchased southern portion of the property No.246. It is their specific defence that the schedule property is the very same property that was purchased by the defendants from Smt.Jayamma but that by wrongly describing it as southern portion of property No.246, the plaintiff is seeking reliefs on false grounds. It is further contended that the defendants have purchased northern portion of property No.246 and they are in occupation of the same and this fact is clearly admitted by the plaintiff in para-11 of the plaint. It is further denied that taking advantage of the dismissal of the eviction petition filed by the plaintiff, the defendants have illegally encroached upon the schedule property by removing the other two tenants from the suit schedule property etc., as alleged by the plaintiff. It is further contended that the fact that Jayamma was the owner and defendants have purchased from her and are in possession of the schedule property has been admitted by the plaintiff and therefore there is no question of these defendants encroaching upon the property belonging to the plaintiff as alleged by him. It is further contended that the sale deeds on the basis of which the plaintiff is claiming right over the schedule property are not valid documents. It is further contended that nowhere in the plaint it is whispered that the plaintiff has been in possession of the schedule property, but for the first time in para-12 of the plaint a mention is made that as if he is in possession of the schedule property and has been dispossessed from the same by the defendants. It is further contended that the documents produced by the plaintiff are not relevant nor they establish the alleged ownership of the plaintiff over the schedule property. It is further denied that the defendants have illegally demolished any structure found on the schedule property and they are not attempting to let out the schedule property for higher rent, etc., as 11 O.S.No.4879/2001 alleged by the plaintiff. On the contrary, it is their specific defence that they have every legal right to put up construction on the said property as they are the lawful owners of the same. It is further denied that the defendants are in unauthorized occupation of the schedule property and that they are liable to pay damages to the plaintiff etc., as claimed by him. It is contended that since the plaintiff is not the owner nor in possession of the schedule property, he is not entitled to seek any of the suit reliefs and as such the suit is liable to be dismissed for want of cause of action against the defendants. The maintainability of the suit is also questioned for undervaluation of the suit reliefs and improper payment of court fee. It is the specific defence of these defendants that originally the schedule property belonged to one Sri M. Krishnaswamy Pillai and his family and during his lifetime Smt.Jayamma the defendants' vendor was in occupation of the schedule property as a lessee under the said Krishnaswamy and she had constructed a house therein and was residing in the said house earlier to 1953. The said Krishnaswamy Pillai said to have died in the year 1953 and during his lifetime he had promised the said Jayamma that he would sell the schedule property to her which was in her occupation and after his death his successors i.e., his children have kept up the promise made by their father and executed a registered sale deed dated 13.09.1972 in favour of Jayamma and her possession over the schedule property even prior to 1953 as a lessee and her putting up construction of building thereon and residing in the said property and the promise given by Krishnaswamy Pillai to sell the schedule property to her, etc., are evidenced in the sale deed of 1972 which cannot be disputed by anybody as the said document had come into existence at an undisputed point of time. It is further contended that the dispute between the plaintiff and the defendants with 12 O.S.No.4879/2001 regard to suit schedule property cropped up in the year 1991. It is further contended that after execution of the sale deed of 1972, Jayamma was in occupation of the schedule property as absolute owner and subsequently she inducted the defendants in the suit schedule property as tenants in the year 1968 and since then the defendants were in possession of the suit schedule property as tenants. It has been further carved out that subsequently the said Jayamma agreed to sell the suit schedule property and accordingly sold the same in favour of the defendants and as there was some restriction for execution and registration of the same, she ignored to execute sale deed in favour of the defendants and as such she had executed a GPA dated 07.04.1989 in favour of defendant No.1 with respect to the suit schedule property which proves the fact that the defendants were in possession of the schedule property. It has been further stated that subsequently on the basis of the said GPA, defendant No.1 executed sale deed dated 12.02.1999 in favour of defendant No.2. It has been further stated that the property purchased by the above said Jayamma is the northern portion of property No.246 and she was in possession of the same and later on inducted the defendants as tenants and subsequently sold the schedule property to them and as such the defendants continued to be in possession of the schedule property as absolute owners and therefore it is in the southern portion of the property No.246 as wrongly described by the plaintiff. The defendants have further contended that after purchase of the schedule property they demolished the old structure which was existing and put up construction of new building with ACC sheet roof and have been residing in a portion of the property by letting out the other portion to the tenant. The khatha of the schedule property is said to have been standing in the name of defendant No.2 and the Corporation 13 O.S.No.4879/2001 has assigned the property number to this property as 17/2 and has collected tax from defendant No.2 for the period from 1993- 94 to 1999-2000 and also collected the betterment charges with respect to the suit schedule property. It is further urged that the defendants are very poor. The defendant No.1 is said to be working as a watchman in a private Nursing Home getting a meager salary of Rs.1,500/- p.m. He is said to be ailing from TB and is also a diabetic patient whereas defendant No.2 is said to be a house wife. They are said to be having three daughters and two sons of whom two daughters are married and two sons and one daughter are said to be residing with them. It is further urged that one of their sons has met with an accident and they are not earning. It is the allegation of the defendants that the plaintiff is bent upon grabbing the schedule property belonging to the defendants despite the earlier Court giving finding that this property is in occupation of the defendants and it was not the property belonging to the plaintiff. For these reasons, the defendants have sought for dismissal of the suit.
4. During the pendency of the proceeding the defendant No.1 died and his legal heirs are brought on record as D.1(a) to
(d). It is also revealed from the records that during pendency of the proceeding the plaintiff also got amended the pleadings thereby correcting the place where the schedule property is said to be situated as Bengaluru Division No.6 which was earlier shown as '7' and to this amended pleadings, the defendants filed additional written statement denying the claim that the Corporation Division No. is 7 and not 6. It is contended that the property claimed by the plaintiff is not situated within the Corporation Division No.6 and therefore once again the identity of the disputed property has been questioned by the defendants.
14 O.S.No.4879/20015. On the rival contentions of the parties, the predecessor- in-office of this court framed eight issues. However, subsequently the modified issues were framed as under:-
1) Whether the plaintiff proves his ownership over the schedule property against the defendants ?
2) Whether the plaintiff proves that he is entitled for mandatory injunction to demolish the structures in the schedule property ?
3) Whether the plaintiff is entitled for the recovery of possession ?
4) Whether the plaintiff is entitled for mesne profits @ Rs.2,500/- p.m. ?
5) Whether the suit is hit by the principles of res-judicata ?
6) Whether the Court fee paid is sufficient ?
7) Whether the suit is barred by law of limitation ?
8) What Order?
6. To substantiate the claim of the plaintiff, his GPA holder has been examined as PW1 and he has produced 28 documents marked from Ex.P.1 to P.28. Per contra, the deceased defendant deposed before the Court as D.W.1 and he has also relied on 17 documents marked from Ex.D.1 to D.17. One court witness who was said to be a Court Commissioner, was examined as C.W.1 through whom two documents were marked as Ex.C.1 & 2. The records reveal that the said suit was earlier disposed off by the then predecessor-in-office of this court on 11.09.2012 after hearing the matter on merits thereby dismissing the suit of the plaintiff as barred by limitation. This judgment and decree was assailed by the plaintiff in the appeal in 15 O.S.No.4879/2001 RFA No.182/2013. The Hon'ble High Court after hearing from both sides, set aside the said judgment and decree and remanded the matter to this Court with a direction to dispose of the case afresh. The High Court has also directed that the parties shall not adduce any additional oral or documentary evidence and this court shall consider the materials that are already placed on record and proceed to consider all the issues. However, this Court was also given liberty to call for fresh report from the court commissioner identifying the suit schedule property and also the property claimed by the defendants with their measurement and the buildings standing thereon and to dispose off the suit on merits. In compliance of this remand order and the directions issued by the Hon'ble High Court now the matter has been taken up for fresh disposal.
7. After remand of the matter, this court issued directions to the earlier Court Commissioner to re-visit the disputed property and to submit fresh report in the light of the observations made by Hon'ble High Court. However it was submitted that the earlier Court Commissioner was transferred and he could not be secured and therefore the counsel for the plaintiff had sought for appointment of a fresh Commissioner and accordingly this court appointed a fresh Court Commissioner with a direction to execute the commission work and to submit report. Accordingly he submitted his report which was received on record. The counsel for the plaintiff submitted no objection to this report whereas the counsel for the defendants filed objections disputing the correctness of this report.
8. Heard arguments from both sides who also submitted the written arguments.
16 O.S.No.4879/20019. On hearing and on perusal of the materials and the available evidence on record, the findings of this Court on the above modified issues are as under:
Issue No.1 : In the negative Issue No.2 : In the negative Issue No.3 : In the negative Issue No.4 : In the negative Issue No.5 : In the negative Issue No.6 : In the negative Issue No.7 : In the affirmative Issue No.8 : As per final order, for the following:
-: REASONS :-
10. Issue No.1 :- It is the specific claim of the plaintiff that the schedule property No.246 was originally a larger extent of the site and the southern portion is the suit schedule property which was acquired by one Mr.Sampangiraman under a registered sale deed dated 28.10.1966 which was sold by him to one Chinnaswamy under a registered sale deed dated 28.04.1972 and the said Chinnaswamy in turn, sold the said property to one S. Nanjappa under a registered sale deed dated 11.01.1974 and subsequently the said Nanjappa put up small residential tenements comprising of three units and let out the same to the tenants. The deceased defendant Ganganarasaiah was said to be one of such tenants under the said Nanjappa. It is the further case of the plaintiff that since the said Nanjappa was employed in a Bank and was posted outside for work, he said to had authorized one Srinivasa Reddy to collect the rent from the tenants on his behalf. According to the plaintiff, the said owner 17 O.S.No.4879/2001 Nanjappa paid tax from 1983-84 to the BMC Bengaluru and so also betterment charges and subsequently he sold the suit schedule property to the present plaintiff under a registered sale deed dated 20.02.1991. Pursuant to the said sale deed the plaintiff said to have got changed the khatha in his name and started enjoying the schedule property as absolute owner.
11. According to the plaintiff's claim, in view of change of ownership in his name, there was statutory attornment of tenancy in his favour. He has also referred to few eviction petitions filed by him subsequently seeking eviction of the tenants in HRC Nos.2045 to 2047/1991 and dismissal of the said petitions in view of the denial of his title by the tenants therein. It is however the allegation of the plaintiff that the deceased defendant who was one of the tenants had started claiming his right over the schedule property situate on the northern side on the basis of a power of attorney alleged to have been executed by one Smt.Jayamma in his name and on the basis of the said GPA defendant No.1 executed sale deed dated 12.02.1999 in favour of his wife defendant No.2. Thus, according to the plaintiff the property which was claimed by the defendants as purchased from said Jayamma was with respect to northern portion of the property No.246 measuring 30x12.6 feets which is no way concerned to the southern portion belonging to this plaintiff.
12. However it is the allegation of the plaintiff that taking advantage of the dismissal of his HRC petitions, defendant No.1 & 2 illegally encroached upon the schedule property by removing the two tenants by posing threats and have been illegally occupying the schedule property without there being any right, title or interest in their favour and have illegally dispossessed the plaintiff from the suit schedule property which has compelled him 18 O.S.No.4879/2001 to come up with the present suit seeking for the declaratory relief regarding his ownership over the suit schedule property, for mandatory injunction directing the defendants to quit and surrender the said encroached portion of schedule property to him and to pay damages. This claim of the plaintiff has been categorically refuted by the defendants who are the husband and wife.
13. As stated supra, during the pendency of the proceeding the original defendant No.1 died and his legal heirs came on record and they continued the proceeding along with their mother defendant No.2. Initially defendant Nos.1 & 2 filed their written statement denying the claim of the plaintiff that the schedule property was acquired by Sampangiraman and he sold the same to one Chinnaswamy who in turn, sold the same to the vendor of the plaintiff Nanjappa. It is further denied by them that the said Nanjappa put up small residential tenements and let out the same and the defendant No.1 was one such tenant. It is further denied that the said Nanjappa had authorized one Srinivasa Reddy to collect rent. On the contrary defendant No.1 has specifically contended that he is in possession of the northern portion of property No.246 in his own capacity as owner and he has never been tenant under anyone much less under the so- called vendor of the plaintiff Nanjappa. They have specifically disputed the various sale transactions referred to by the plaintiff since 1966 till 1991 in favour of the plaintiff as claimed by him. Thus the defendants have specifically disputed the very alleged title and possession of the plaintiff or his so-called predecessors- in-title with respect to the suit schedule property.
14. According to the defence of the defendants, the suit schedule property itself is the very same property purchased by 19 O.S.No.4879/2001 defendant No.1 from Jayamma and subsequently sold the same to his wife defendant No.2. In view of these rival contentions of the parties, heavy burden is cast on the plaintiff to prove at the first instance his alleged ownership and possessory rights over the suit schedule property by virtue of the disputed sale deed dated 20.12.1991. As already discussed above, prior to the remand of this matter from the Hon'ble High Court, the PA holder of the plaintiff was examined as P.W.1 and he had produced 28 documents whereas the deceased defendant also deposed as D.W.1 and he had also relied on 17 documents. A Court Commissioner was examined as C.W.1 through whom two documents were marked as Ex.C.1 & 2.
15. As regards Ex.P.1, it is the special power of attorney executed by the plaintiff in favour of P.W.1 to depose in this case. Ex.P.2 is the copy of sale deed of 1966 standing in the name of the original owner Sampangiraman. Ex.P.3 is the encumbrance certificate pertaining to the schedule property which is again standing in his name. As regards Ex.P.4, it is the original sale deed dated 28.04.1972 under which the said Sampangiraman said to have sold the schedule property in favour of K.P. Chinnaswamy. As regards Ex.P.5, it is once again the subsequent sale deed dated 11.01.1974 under which the said Chinnaswamy said to have sold the very same property in favour of the vendor of the plaintiff N. Nanjappa. The tax paid receipts which are standing in his name are also produced from Ex.P.7 to P.9.
16. P.W.1 has also produced a certificate as per Ex.P.10 issued by the Corporation of City of Bengaluru in his name. As regards Ex.P.11, it is said to be the sale deed of the plaintiff dated 20.02.1991 under which he claims to have purchased the 20 O.S.No.4879/2001 schedule property from the said vendor Nanjappa. To show that pursuant to Ex.P.1- sale deed his name came to be mutated to the revenue records, P.W.1 has produced the uttarpatra issued by the Corporation as per Ex.P.12 and the tax paid receipts at Ex.P.13 & P.14. As regards ExP.15, it is the certified copy of the order passed in HRC No.2046/1991 which was filed by the present plaintiff against the present deceased defendant No.1 seeking his eviction which came to be dismissed. As regards Ex.P.16, it is the certified copy of the sale deed dated 12.02.1999 under which the present deceased defendant claims to have purchased the northern portion of property No.246 from Smt.Jayamma as contended by him in this case.
17. As regards Ex.P.18, it is the encumbrance certificate which is standing in the name of the original owner Sampangiraman. To show the situation and existence of the schedule property P.W.1 has produced three photographs which are marked from Ex.P.19 to P.21. He has also produced the certified copy of the sale deed dated 22.03.1996 executed by defendant No.1 in favour of defendant No.2. As regards Ex.P.23, it is also the certified copy of the sale deed dated 28.04.1972 which is the very same sale deed standing in the name of Chinnaswamy executed by Sampangiraman. Further Ex.P.24 is once again the certified copy of the very same sale deed of the defendant No.2. As regards Ex.P.25 & P.26, they are the khatha extracts which are standing in the name of Venkatappa as well as the present plaintiff. Ex.P.27 and P.28 are two more encumbrance certificates standing in the name of Marimuthu and M. Venkatappa which show that the property was transferred from Sampangiraman to Marimuthu as per Ex.P.27 and subsequently from the said Marimuthu to Venkatappa as per Ex.P.28.
21 O.S.No.4879/200118. As stated supra, against the evidence of P.W.1 as well as the documentary referred to supra, the deceased first defendant also deposed before the Court as D.W.1 and he has also relied on 17 documents marked in support of his defence. As Regards Ex.D1, it is the certified copy of the sale deed dtd. 13.09.1972 executed in favour of Jayamma and Ex.D2 is the typed copy of Ex.D1. Ex.D3 is the GPA said to have been executed by the said Jayamma on 07.04.1989 in favour of DW1. Further, Ex.D4 is the certified copy of the sale deed executed by DW1 in favour of his wife D-2 on 12.02.1999. He has also produced copy of a notice at Ex.D5 issued by the City Corporation Bengaluru with regard to change of khatha in the name of the second defendant.
19. DW1 has also relied on the copy of Khatha Certificate standing in the name of D-2 as per Ex.D6. He has also produced few tax paid receipts standing in her name which are marked from Ex.D7 to D16. As regards Ex.D17 and Ex.D18, they are the copies of petitions filed by the present plaintiff against DW1 with respect to the suit property. In the backdrop of this oral and documentary evidence placed before the court by both the parties, now it is to be seen whether the plaintiff could establish his lawful title over the schedule property.
20. The learned counsel for the plaintiff vehemently argued that Ex.P4 clearly establish that the southern portion of the suit property was sold in favour of Nanjappa which was subsequently sold to the plaintiff as per Ex.P11 sale deed whereas Ex.P23 proves that the northern portion was sold to one Marimuthu and this fact is further proved from the boundaries mentioned in Ex.P11 towards North showing the northern portion of the same property. By pointing out these documents, it is argued on behalf 22 O.S.No.4879/2001 of the plaintiff that when already the northern portion was alienated in favour of the said Marimuthu, then there is no question of the vendor of DW1 acquiring the said northern portion so as to convey the same in favour of DW1.
21. The learned counsel for the plaintiff has also invited the attention of this court to Ex.D4 sale deed of 1999 in favour of D-2 wherein the southern boundary is shown to be the northern portion of the same property and therefore, according to his arguments, the title and possession of the plaintiff over the southern portion is established. He has also urged with some vehemence that though DW1 claims to have purchased his property in the year 1989 through Ex.D3, but this property is shown to have been assessed to tax for the first time in the year 2000 and therefore, his alleged title and possession over this property cannot be accepted.
22. By countering the arguments canvassed by the learned plaintiff's counsel, the learned defence counsel has also urged with some vehemence by pointing out that from the own pleadings of the plaintiff, it is proved that though the title of the first defendant is disputed by the plaintiff, but the possession of D1 and 2 over the property No.246 is admitted and even there is intrinsic evidence that the vendor of the defendants Jayamma was in possession of the said property. In this regard, he has also invited the attention of this court to Ex.D1(D2) dtd. 13.09.1972 standing in the name of the said Jayamma. Therefore, according to his arguments, Ex.D1 (D2) affirms the earlier possession of Jayamma as tenant with respect to the said property.
23. The learned defence counsel has also argued that the schedule of the defendants' property as shown in Ex.D2 is entirely different than the plaint schedule property and therefore, 23 O.S.No.4879/2001 the plaintiff cannot assert any right over the defendants' property. He has also argued that the plaint schedule shows existence of structures, but no details as to who had put up the said structure are furnished. He has also pointed out that the boundaries shown in the plaint schedule once again differs from the boundaries of the property involved in Ex.D16 and D17 HRC proceeding initiated by the plaintiff. By pointing out all these infirmities the learned defence counsel urged that the plaintiff has tried to lay his claim over an unascertained property and therefore, his alleged title over the suit property is not clear.
24. As already discussed supra, at the first instance this suit was dismissed by this court by its judgement dtd. 11.09.2012 on the ground of limitation and the same was assailed by the plaintiff in RFA No. 182/2013. The Hon'able High Court while allowing the said appeal remanded the matter on the grounds that there has been serious dispute with respect to the very identity and demarcation of the properties of the parties and the same is also not clarified by the Court Commissioner in his sketch and report and even the parties had not produced any sketch to identify and demarcate their respective properties. Consequently the High Court has directed this court to reconsider the matter by re-assessing the oral and documentary evidence and the liberty was given to this court to call for fresh report from the Court Commissioner to identify and demarcate the properties of the parties.
25. In the light of the above observations of the Hon'able High Court in the above said appeal, a fresh Court Commissioner was appointed to comply with the above said directions and he has accordingly submitted his report which was admitted by the plaintiff whereas the defendants opposed the same on the ground 24 O.S.No.4879/2001 that this report does not depict the true state of things existing on the disputed properties. As stated supra, the High Court had directed this court to re-assess the oral and documentary evidence and to dispose off the matter afresh since the earlier dismissal of the suit on the sole ground of limitation was erroneous. However, this court was given liberty to call for fresh report from the Court Commissioner in order to appreciate the available evidence on record. Therefore, even though the Court Commissioner has submitted his fresh report, but still it would be in the aid of the available evidence placed before the court by the parties. The report of a Court Commissioner is not a conclusive piece of evidence with regard to the disputed issues involved in the suit, but it could be considered as one of the pieces of the evidence which is already available on record which is an equally well settled position of law. Therefore, the initial burden would be always on the parties to establish their respective stands independently with their own evidence, both oral as well as documentary.
26. It has been the definite case of the plaintiff he has acquired the southern side residential property of site No.246 which is inclusive of the structures and with respect to this property he had initiated Ex.D16 and D17 HRC proceeding against the deceased defendant. It is also material to note that he has also not denied the claim of the defendants that the property acquired by D-1 was the northern portion of the very same property No.246 under Ex.D3 GPA which has been unequivocally admitted by him in para 11 of his plaint. There is also categorical admission by the plaintiff in the very same para that D1 and 2 are residing in the northern portion of the said property. However, it is his allegation that taking advantage of the dismissal of the HRC proceedings which was filed against the deceased D-1, the 25 O.S.No.4879/2001 defendants illegally encroached upon the suit property by evicting the other tenants from the suit property and have been illegally squatting over the said property. Thus, having admitted the acquisition and possession of the defendants over the northern portion of the property No.246, now the burden is heavy on the plaintiff to prove as to how this alleged encroached portion by the defendants is the suit schedule property belonging to him.
27. It is relevant to note that under Ex.P2 sale deed, what was sold to Chinnaswamy by Sampangiraman was a vacant site measuring 30' x 15' along with a shed therein whereas the plaint schedule refers to structure on the said property. As rightly argued by the learned counsel for the defendants, though it is asserted by the plaintiff that after purchase of the suit property from Nanjappa, there was attornment of tenancy in his favour with respect to the tenants who were in occupation of the tenaments in the suit property including that of the deceased first defendant. However, neither the schedule of the property in Ex.P4 sale deed of Chinnaswamy nor Ex.P5 sale deed of Nanjappa refers to any such tenaments in the suit property as on the date of the said sale deeds. It is relevant to note that Ex.P5 sale deed executed in the name of Nanjappa i.e., the vendor of the plaintiff nowhere mentions about any tenanted premises in the schedule of the property sold to him. On the other hand, the schedule of the property mentioned in Ex.P5 merely refers to a site. It is further material to note that even Ex.P6 and P10 notices issued by the Corporation authorities refers to a site without any structures.
28. It is further relevant to note that even in the earlier HRC proceeding it has been observed that the suit property was described by the plaintiff as site. It is further material to note that the said court has further referred to in para 9 of its order by 26 O.S.No.4879/2001 referring to the evidence of one Srinivas Reddy who was examined as PW2 in that proceeding who had stated in his evidence that he was authorized by Nanjappa to let out the premises in the suit property and accordingly he let out the schedule premises to the present deceased D-1 in the year 1981- 82 on a monthly rental of Rs.150/-. This witness in the said proceeding was examined in support of the claim of the present plaintiff as his witness. Therefore, the version of this witness in that case once again establishes the possession of the defendants in the suit property since 1981.
29. It is further to be noted that the court in Ex.D16 and D17 proceeding has ultimately held that the plaintiff herein has failed to purchase the premises in occupation of the present deceased D-1 as well as it adjoining two tenaments occupied by other tenants. Consequently, the court dismissed his petitions. It is to be noted that the order passed in the said HRC proceeding has remained unchallenged by the plaintiff till this date. This is one such circumstance which would support the defence of the defendants that what was acquired by the plaintiff herein was entirely different property than the property acquired by the present DW1. It would be equally relevant to refer the testimony of PW1 in this case who claims to be the Power of Attorney holder of the plaintiff.
30. Though PW1 in his cross-examination has denied that the property in which the defendants are residing originally belonged to one Krishnaswamy Pillai and voluntarily stated that one Kannamma had filed suit against the said Pillai and obtained decree against him with respect to the said property, but the same is neither pleaded by the plaintiff nor any documents are produced to that effect. However in his further cross-examination 27 O.S.No.4879/2001 he has categorically admitted that he has not seen the said judgement. He has also not denied the suggestion of the defence counsel that one Jayamma was residing in the suit property though he has pleaded ignorance to that effect. It is further pertinent to note that though PW1 has also denied the fact that the property where the defendants are residing is the northern portion of site No.246, but the said denial holds no substance because, as already discussed supra, the plaintiff himself in his pleadings has unequivocally admitted this fact.
31. PW1 has even no denied the suggestion that the above said Jayamma was earlier tenant under Krishnaswamy Pillai and later the said Pillai sold the said property to her and she in turn inducted the deceased D-1 as tenant for the said northern portion and thereafter entered into sale transaction with the first defendant under a GPA in the year 1989, although once again he has pleaded ignorance about the said facts. However, it is relevant to note that there is no specific denial with regard to these material facts. This piece of his evidence is relevant to be referred which is found in his cross-examination dtd. 29.10.2007 on page No.3 which reads thus:
" I do not know whether Jayamma was tenant under Krishnaswamy Pillai. I do not know whether subsequently Krishnaswamy Pillai sold the property to Jayamma. I do not know whether said Jayamma inducted the first defendant as tenant for the said portion in the year 1988. I do not know whether Jayamma entered into sale agreement and power of attorney regarding the said portion with the first defendant during 1989. I do not now whether the first defendant executed a sale deed of the said portion in 28 O.S.No.4879/2001 favour of the second defendant under the power of attorney. It is true that the defendant demolished the old structure and constructed the existing building. The Corporation has assigned khatha No.18 to the said property and it is false to suggest that the number assigned is 17/2. I am not aware whether the property bearing No.17/2 stands in the name of second defendant".
Thus the above material statements and admissions of PW 1 would clearly indicate that even they were well aware of the fact that since 1988 the deceased D1 has been in possession and enjoyment of the northern portion of the suit site No.246 by virtue of the said GPA and thereafter the sale deed was executed in favour of his wife D2 who has already put up the construction over the said property. This fact clearly falsifies the allegation of the plaintiff that now the defendants are falsely claiming their right over the suit schedule property belonging to them.
32. It is further pertinent to note that even in his further cross examination P.W.1 has given some material statements and admissions which would certainly go to the root of the disputed issue. According to his statement there were only two sheds till 2001 which were in existence over the suit property and he himself had let out the said 3 sheds to the tenants i.e., the deceased D.1, one Dakshinamurthy and one Smt.Gowri. As already held above the plaintiff himself has nowhere specified in the entire plaint that as on the date of his purchase of the suit schedule property there were 3 tenanted sheds over the suit property and one of the same was occupied by the deceased D.1 and the other tenements were in possession of the other two tenants referred to by P.W.1.
29 O.S.No.4879/200133. Moreover as discussed supra, the own documents of the plaintiff, particularly Ex.P4 sale deed in favour of Chinnaswamy, Ex.P5 sale deed in favour of the plaintiff's vendor Nanjappa of the year 1972-74 respectively nowhere mention about three sheds in occupation of the said 3 tenants as stated by P.W.1 in his cross examination. On the contrary the schedule of property shown in Ex.P4 refers to the existence of only one shed whereas Ex.P.5 not even makes mention about any structure, much less any tenanted sheds as stated by P.W1, because Ex.P5 describes the schedule of the property sold to the plaintiff's vendor Nanjappa as an open site. Therefore as rightly argued by the learned counsel for defendants, the testimony of PW1 is running totally contra to his own documentary evidence as well as the pleadings of the plaintiff. It is also material to note that the plaintiff has nowhere stated in his pleadings that the said three sheds were also let out by P.W1 to the other tenants Dakshninamurthy and Gowri along with other tenant deceased D1. It is further relevant to note that P.W1 has also clearly admitted that he has not measured these so-called sheds and the vacant space which he has referred to in his cross-examination dated 12/11/2007. Under such circumstances when the plaintiff has absolutely no authenticated records showing the measurement of each alleged sheds as well as the said vacant space, then his allegation that the defendants have encroached upon suit schedule property, falls to the ground and the same cannot be sustained.
34. It is further relevant to note that PW1 has clearly admitted that he do not have any document to show the letting out of the property by him. He has also admitted that he do not know when the khata was made in his favour. He has also clearly admitted about filing of HRC petitions by his brother the plaintiff 30 O.S.No.4879/2001 against the deceased D.1 and about the dismissal of those petitions. It is further significant to note that even in his further cross-examination dated 09.06.2008 PW1 has clearly admitted that one Muslim person is residing to the southern side of the property in occupation of the deceased D1 which one again clearly nullifies the claim of the plaintiff that towards north of his property the remaining portion of site No.246 is situated as shown in the same schedule. Therefore, what could we gathered from the entire reading of the testimony of PW1 who is none other than the own brother of the plaintiff and his so called vendor of the suit schedule property, is that there is total inconsistency in his statement which is now proved to be not in consonance with the pleadings of the plaintiff and their own documentary evidence.
35. It is further material to note that as discussed above from the own documents, particularly from Ex.P5 it is now proved that what was purchased by PW1 from the original owner Chinnaswamy was the vacant site without there being any structure, much less any sheds or tenements as claimed by PW1. When the own documents of the plaintiff and PW1 speak about the alleged sale of only vacant site without any structures then it cannot be accepted that the defendants are laying their false claim over the suit schedule property when as per the own admission of the plaintiff in his pleadings itself that the defendants are in possession of the northern portion of the suit site since they acquired it in the year 1988.
36. It is further significant to note that the pleadings of the plaintiff are also totally vague with respect to the material particulars and details of the schedule site No.246. If we peruse paras 4 and 5 of the plaint, though the plaintiff has stated that the erstwhile owner Chinnaswamy sold site No.246 to PW1 as per 31 O.S.No.4879/2001 Ex.P5, but there is absolutely no whisper as to the extent of the said property nor there are any material particulars with regard to the total extent of site No.246. Such pleadings are to be discarded for want of material particulars as required under order VI rule 4 of CPC. When the plaintiff is seeking the comprehensive relief of declaration regarding his title over the suit schedule property, then the pleadings must be specific about the total extent of the entire property, the specific details about extent of the property purchased by him and in his possession. These requirements are mandatory when he himself has categorically admitted in para 11 of his plaint that northern portion was sold to the deceased D1 under the GPA by Jayamma.
37. Even there is unequivocal admission by the plaintiff in the very same para 11 of the plaint about the actual physical possession of D1 pursuant to the said GPA since 1989 itself. It is further important to note that neither the plaintiff nor PW1 being his vendor, have placed before the court any layout plan or other approved plans issued by the competent revenue authorities pertaining to the suit property so as to ascertain the actual demarcation of the said southern and northern portions claimed by the respective parties in the suit site No.246. Under such circumstances as rightly pointed out by the defence counsel, in the absence of any such authenticated records the burden was heavy on both the plaintiff as well as PW1 to prove with concrete materials as to the exact extent of the suit property in possession of the plaintiff or even in the possession of PW1 earlier to his selling the same to the plaintiff so as to claim the relief of not only declaration but also the consequential relief of permanent injunction.
32 O.S.No.4879/200138. The law mandates that in order to maintain a suit of this nature, the plaintiff is required to give the material particulars with respect to the measurement of the total extent of the property as well as the actual extent in his actual possession as on the date of institution of the suit which are absent in the case on hand. However the learned counsel for the plaintiff has also vehemently urged that even DW1 has given some crucial admissions which are relevant to be referred in order to appreciate the case made out by the plaintiff. In this regard he has invited the attention of this court to the cross examination of DW 1 who led his evidence during his lifetime which is recorded on 19.12.2007.
39. In the cross examination of DW1 it has been suggested to him that he has been occupying site No.246 as a lessee since 1974 and prior to it he was residing in Tumkur taluk. He has also stated that he occupied the suit site as a tenant under one Jayamma and he has also stated that one Gowri also occupied site No.246 later and thereafter one Kuppamma was also tenant in the said property and all of them were in possession of their respective tenements. However he has denied that one Dakshinamurthy was also a tenant in the same property. It is further elicited from his mouth that he was residing in site No.246 on the northern portion. It is denied by him that he himself, the said Dakshinamurthy and Gowri were residing in the southern portion of site No.246 as tenants. Again this suggestion put to DW1 is of no relevance for the simple reason that as already held above, it is not the case made out by the plaintiff in his pleadings that along with DW1, the other two tenants by name Dakshinamurthy and Gowri were also residing in the southern portion of suit site No.246 as tenants. Even otherwise to substantiate this aspect, except the interested version of P.W.1, 33 O.S.No.4879/2001 the plaintiff has not examined the said tenants whose names are referred to by DW1 or even by PW1 to prove that they were also occupying their respective tenements along with DW1 in the southern portion of the suit site No.246.
40. However though a desperate attempt was made by the plaintiff's counsel by suggesting to DW1 that he along with above said two persons were tenants in site No.246 under Chinnaswamy, but DW1 has stated that his response would be that he was a tenant under Jayamma. These suggestions as referred to above put to DW1 are in no way helping the claim of the plaintiff, because nowhere it has been specifically denied even in the cross examination of DW1 that he was occupying the southern portion of the suit site No.246. Under such circumstances the burden was on the plaintiff as well as on PW1 to prove before the court with acceptable evidence as to how this portion in possession of DW1 was the said southern portion of suit site No.246 allegedly purchased by the plaintiff.
41. It is also relevant to note that though it has been subsequently suggested to DW1 in his further cross examination that he was paying rent to PW1 subsequent to 11.01.1974 but he has clearly denied the said suggestion. Though it is also tried by suggesting to him that he did not pay rent to the plaintiff after purchase of the property from Nanjappa, but DW1 has once again reiterated that he did not know about the plaintiff till he saw him in the court. If we peruse the subsequent cross examination of DW1, it could safely be held that nothing fruitful could be extracted from his mouth by the plaintiff's counsel so as to help the case of the plaintiff. On the other hand even in his further cross examination DW1 has reiterated the fact that he has validity acquired the northern portion of the suit site No.246 from 34 O.S.No.4879/2001 Jayamma and has clearly denied the suggestion that he has forged Ex.D3 GPA.
42. Moreover though it is also suggested to DW1 that Jayamma had never executed the said GPA, but this suggestion is once again inconsistent with the own pleadings of the plaintiff particularly with the averments made in para 11 of the plaint wherein he has unequivocally admitted about the possession of the northern portion of site No.246 by virtue of the very same GPA. Therefore as rightly argued by the defence counsel, the plaintiff could not extract any material admission from the mouth of DW1 which would be helpful to the claim of the plaintiff. On the other hand, from the available evidence on record it is clearly established that the plaintiff who has approached this court seeking the comprehensive relief with regard to the disputed property, himself has miserably failed to discharge his initial burden of proving the material issues involved in the case.
43. However in view of the subsequent report submitted by the Court Commissioner on 28.11.2023, the plaintiff's counsel submitted no objection to this report whereas the defendants raised serious objections to this report mainly on the grounds that it does not depict the actual state of affairs existing on the disputed property. Though the defendants had sought for summoning the said Court Commissioner for cross examination on their objections submitted to this report, but the same was rejected by this court on the ground that as per the directions of the Hon'ble High Court of Karnataka in the remand order no right was given to the parties to lead any additional evidence in the matter. Even otherwise this court on perusing the available evidence on record found that there is no necessity to summon the Court Commissioner as the matter could be disposed off on 35 O.S.No.4879/2001 the basis of the available evidence placed before the court by the parties themselves.
44. A report of a court commissioner is not a conclusive proof of the disputed facts involved in the case, but it could be considered only as one of the additional pieces of evidence in addition to the evidence which is already available before the court. In the backdrop of this settled position of law, this court finds it relevant to have a look at the report of the Court Commissioner who had visited the schedule property and submitted his report. From his report it is revealed that on 18th November 2023 he visited the schedule property as per the directions of this court and prepared a sketch and mahazar in the presence of the witnesses. He has also submitted the said sketch prepared by him. It is significant to note court that from the bare eyes one can easily make out that this sketch has been prepared by the Court Commissioner in a casual manner without verifying the material particulars of the disputed properties. He has shown the existence of about 7 private properties on either side of suit site No.246. It is material to note that no particulars of either the persons who are holding those properties are furnished nor he has given their measurement. However in yellow colour he has shown the existence of the suit site No.246, but again the details of the adjacent properties are not seen in this sketch.
45. The Court Commissioner has also produced few photographs showing the existence of the suit property. In another sketch prepared by him he has however shown the details of the properties claimed by the parties. This sketch shows the existence of suit site No.246 claimed by the parties giving its measurement as east-west 15.10 feets and 14.10 feets and north-south 30x30 feets. Towards north he has shown the 36 O.S.No.4879/2001 existence of the remaining portion of the same site new number as 22 and old number as 246 measuring 30x15.7 feets whereas towards south he has shown the existence of site No.23 belonging to one Lalitamma. Towards west he has shown the situation of property bearing old No.247 belonging to one Rajamma. It is pertinent to note that except preparing these two sketches, he has not given any report as to whether the property claimed by the defendants is the very same property claimed by the plaintiff in this case nor he has reported any alleged encroachment over the suit schedule property claimed by the plaintiff. Since this report is also not shown to be favouring the plaintiff's claim, the same need not be looked into when the other evidence is available before the court which is sufficient to decide the disputed issues involved in the case.
46. It is though submitted by the plaintiffs that they have no objection to this report of the Court Commissioner, but it is pertinent to note that there is no specific mention by this Court Commissioner either in his sketch or through a separate report to the effect that the defendants were found to be in actual physical possession of the suit schedule property to the extent as claimed by the plaintiff. It is material to note that in his report this Court Commissioner has specifically stated that at the time of conducting the commission work and mahazar, he recorded the statements of the public who were residing near the schedule property to ascertain the possession of the persons and as per their statements he has prepared the said report. However it is material to note that in the mahazar also he has stated that as per the statements of the residents of the locality he came to know that already a mahazar was conducted earlier, but no documents are available to that effect in their office. Therefore this report submitted by the Court Commissioner is certainly of no relevance 37 O.S.No.4879/2001 either to the claim of the plaintiff or to the defence of the defendants.
47. No doubt, the Hon'able High Court in his order had given liberty to call for a fresh report from the Court Commissioner, but after assessing the available oral and documentary evidence of the parties it is now proved that the controversial issue involved in the case is not with regard to the northern or southern portions of the suit site No.246 claimed by the parties, but the core issue which has emerged from the evidence on record is whether the plaintiff could prove at the first instance his title over the suit property as on the date of the suit Heavy burden was cast on him to establish his case independently by proving as to how the property in possession of the defendants is very same schedule property claimed by him. Therefore when he himself has miserably failed to discharge this initial burden of proving his case, this report or the sketch prepared by the Court Commissioner need not be looked into.
48. Moreover as rightly pointed out by the defence counsel the sketch or report prepared by the Court Commissioner is not based on any approved layout plan or any authenticated revenue records as could be borne out from the said report. It is also material to note that the plaintiff himself has not produced before the court any such authenticated records when admittedly the schedule property is claimed to be a site. If that were to be the fact certainly the plaintiff or at least his predecessors-in-title including PW1 ought have produced before the court the authenticated Government approved plan or layout plan to ascertain the exact extent of the property in possession of the plaintiff towards southern side of suit site No.246 and also to ascertain the extent of the property held by the defendants 38 O.S.No.4879/2001 towards northern side of the said site. In the absence of any such documents a Court Commissioner will not be able to ascertain the exact extent of the property held by the parties as per their documents of title.
49. Moreover, a Court Commissioner being an outside agency, is not a competent person to report regarding the title of a party to the suit. Therefore the report or sketch prepared by him in the instant case has no relevance and no credibility could be attached to it. Such report would merely form part of records. This preposition of law has been laid down in a catena of decisions of the Hon'ble High Court as well as the Hon'ble Supreme Court and some of these authorities are cited by the learned counsel for the defendants which are reported in Ram Kishore Sen and others v/s Union of India and others in AIR 1966 SC 644 and in Ranganath Ramchandra Suryavanshi v/s Mohan and others in 2008(5) AIR Kar. R 369. In these decisions it is clearly held that the map prepared by private person and not under authority of Government are irrelevant unless proof of fact that they were generally offered for public sale and in the absence of such a proof no presumption in favour of the accuracy of such map can be drawn under section 83 of the Evidence Act. In the instant case the plaintiff has failed to place before the court any such approved Government plan or layout plan with respect to suit schedule property and therefore even if he has submitted no objection to the report of the Court Commissioner, the said report or the sketch prepared by the Court Commissioner without reference to any Government approved plan, cannot be relied on. In other words even in the absence of any Commissioner report, the claim of the plaintiff that he is entitled to claim right over the suit schedule property cannot be sustained when he himself has 39 O.S.No.4879/2001 failed to prove that the property in possession of the defendants is the very same schedule property claimed by him.
50. It is further to be noted that though the Court Commissioner has shown in his sketch about new No.22 in place of old No.246, again this fact holds absolutely no significance for the simple reason that it is nobody's case that the new number of the suit site is 22. Even the plaintiff has not pleaded nor stated that the said property has been given new number as 22. It is also not substantiated by the plaintiff what is the basis for assigning such new number to the suit schedule site No.246. It is also pertinent to note that even the plaintiff has not placed before the court any earlier khata extract or the tax paid receipts to ascertain as to when the new number was assigned to the suit property. On this count also the report submitted by the Court Commissioner is liable to be discarded. Therefore even though the Court Commissioner has submitted his report after remand of the matter from the Hon'ble High Court and though it is not objected to by the plaintiff, but still this court can certainly eschew the same from consideration since his report or sketch is now proved to be a mere collection of new facts which are neither pleaded in the plaint nor proved by the plaintiff with any supporting materials. Therefore this court has rejected the prayer of the defendants of summoning the said court commissioner for cross examination. Therefore the non-examination of the Court Commissioner by the defendants has certainly not become fatal to their defence, since the defendants are not required to prove the negative aspect which is required to be proved by the plaintiff which he has not proved.
51. However the learned counsel for the plaintiff has relied on a couple of decisions which are in connection with the 40 O.S.No.4879/2001 plea of adverse possession. The first decision cited by him is reported in P.T. Munichikkanna Reddy and others v/s Revamma and others in AIR 2007 SC 1753 wherein it is held that the party in order to set up title by way of adverse possession has to prove the existence of intention to dispossess and the possession of the adverse possessor must be hostile enough to give rise to reasonable notice and opportunity to the owner and the intention is a mental element which is proved and disproved through positive acts.
52. The second decision cited by the plaintiff's counsel is reported in Annakili v/s Vedanayagam and others in AIR 2008 SC 346 wherein it is held that under Article 65 of the Limitation Act in order to set up a plea of adverse possession not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of possession and the claimant must continue in the said capacity for a period prescribed under the Act and therefore mere long possession for period of more than 12 years without anything more would not ripen into title.
53. The third decision relied on by the plaintiff's counsel is reported in Brijesh Kumar & anr. v/s Shardabai (Dead) by Lrs in AIR Online 2019 SC 1183 wherein the Hon'ble Supreme Court while dealing with Article 65 of the Limitation Act has once again reiterated that the failure of the plaintiff to establish peaceful, open and continuous possession over 12 years to demonstrate wrongful ouster of rightful owner would not entitle him to set up title by way of adverse possession.
54. The fourth decision which is relied on by the plaintiff's counsel is reported in Sri. Uttam Chand (D) through Lrs v/s Nathu Ram (D) through Lrs in AIR Online 2020 SC 35 wherein 41 O.S.No.4879/2001 once again the Hon'ble Apex Court has reiterated that where the plaintiff claims possession on the basis of purchase of suit schedule property in public auction and the defendant sets up plea of adverse possession claiming to be in continuous possession, such possession which is one of continuous possession not hostile possession to true owner of the suit property, it cannot be said that the defendants perfected their title by way of adverse possession as, it must be proved that such possession was adverse and hostile to the possession of the true owner and a trespasser's long possession is not synonymous with adverse possession which is construed to be on behalf of the owner and therefore the casual user does not constitute adverse possession and the owner in such case can take possession from such trespasser at any point of time.
55. The last decision cited by the plaintiff's counsel is reported in P. Krishnaveni and others v/s Sri. Sampath Raj and others in RFA No.1757/2012 decided on 27.01.2020 wherein once again the Hon'ble High Court by relying the above said earlier decision, reiterated that in order to prove title by way of adverse possession, animus possidendi under hostile colour of title is required and the trespasser's long possession is not synonymous with adverse possession.
56. With due regards to the proposition of law laid down in all the above cited decisions, before considering the application or otherwise of those principles to the present case, it is to be seen whether the facts on hand warrant the application of those principles. There cannot be any dispute with regard to the proposition of law laid down in all these decisions which categorically lay down a settled law that in order to claim adverse possession, the party must satisfy all the essentials which are 42 O.S.No.4879/2001 required under Article 64 and 65 of the Limitation Act as narrated above. Whether in the instant case either the plaintiffs or the defendants have set up their respective claim by way of adverse possession over the suit property, is the material aspect which requires consideration. As rightly pointed out by the learned counsel for defendants, neither the deceased defendant nor the present defendants have set up their claim over the schedule property by way of adverse possession by admitting the title of the plaintiff over this property. On the contrary they have set up their own title and possession over the northern portion of the schedule site No.246 which is also categorically admitted by the plaintiff in his pleadings itself.
57. Nowhere the deceased defendant had pleaded in his written statement that he has been in long, continuous and uninterrupted possession over the suit schedule property with the knowledge of the plaintiff or the earlier true owners of the said property and thereby perfected his title over the suit property by adverse possession. Therefore the exhaustive argument canvassed on behalf of the plaintiff on the premise that the defendants have failed to prove their title and possession by way of adverse possession, is totally misconceived and cannot be sustained. On the other hand it is the definite stand taken by the defendants in this case that they are claiming their independent right over the northern portion of the suit schedule site No.246 to which the plaintiff is not concerned in any manner.
58. As already discussed supra, the plaintiff himself has miserably failed to establish his title and possession over the disputed property with cogent evidence. At the first instance, he has failed to prove before the Court with concrete materials the total extent of site No.246 and the extent which is in his actual 43 O.S.No.4879/2001 physical possession by virtue of his sale deed. On the other hand, the present Court Commissioner's sketch also nowhere reveal that the defendants are in possession of the entire schedule site No.246, but it only says that they are in occupation of a portion measuring 30x15 feets. This report also probablises and supports the defence of the defendants that they are in possession of the northern portion of site No.246 which they had purchased from Smt.Jayamma which is also not denied by the plaintiff. Under such circumstances, the burden was certainly heavy on the plaintiff to establish before the court with proper identity and extent of the schedule property allegedly in his actual possession.
59. However the learned counsel for the plaintiff also vehemently argued that the provisions of Article 64 of the Limitation Act are not applicable to the case of the plaintiff, but it is Article 65 which has got application to the case on hand. However if we peruse the remand order of the Hon'ble High Court it is revealed that the counsel appearing for the plaintiff who was the appellant therein had argued before the Hon'ble High Court that this court while dismissing the suit earlier, had wrongly applied Article 65 of the Limitation Act which was not applicable to the facts of the case as defendants had never raised plea of adverse possession over the schedule property. Now after remand of the matter it has been the argument of the counsel that Article 65 is to be applied to the case on hand as suit of the plaintiff is based on title, which is totally contra to his argument which was canvassed before the Hon'ble High Court in the said appeal. Thus, to support his submissions he has cited the above mentioned authorities of the Hon'ble Supreme Court and Hon'ble High Court which have dealt with the provisions of Article 64 & 65 of the Act.
44 O.S.No.4879/200160. If the plaintiff maintains his claim that his suit for possession is based on title, then he has to necessarily invoke the provisions of Article 65 of the Limitation Act whereas Article 64 of the Act is restricted to the suits for possession based on dispossession or discontinuance of possession and in order to bring the suit within the purview of this Article 64 of the Act, it must be shown that the suit is in terms as well as in substance based on the allegation of the plaintiff having been in possession and having subsequently lost the possession either by dispossession or by discontinuation. Article 65 of the Act as stated supra, is a residuary Article applying to the suits for possession not otherwise provided for and the suit based on title in which there is no allegation of prior possession and subsequent dispossession alone can fall within the Article 65. This position of law has been well settled by the Hon'ble Supreme Court in a decision reported in Ramaiah v/s N. Narayana Reddy (D) by Lrs in AIR 2004 SC 4261 which is cited by the learned counsel for the defendants. In the backdrop of these legal requirements it is to be seen whether the plaintiff herein is certain about his stand whether his suit is based on his earlier dispossession or based on his title so as to apply either Article 64 or Article 65 of the Act.
61. However as already discussed supra, after having taken a stand in the appeal before the Hon'ble High Court that his suit was based on Section 64 of the Act, now the plaintiff is estopped from retracting from the said stand in this case by urging that his suit is based on title within the ambit of Article 65 of the Act. Therefore as rightly argued by the learned counsel for defendants, the claim of the plaintiff is totally inconsistent and he himself is not certain about the nature of the rights which he is having in the suit schedule property. Moreover as already 45 O.S.No.4879/2001 discussed supra, it is not a case where the defendants herein have set up their title and possession over the suit schedule property by way of adverse possession and there is no issue raised in this regard. Therefore the ratio laid down in the above said decisions which are cited by the learned counsel for the plaintiff based on the plea of adverse possession, has absolutely no application to the facts on hand. Consequently it is to be held that the plaintiff having failed to prove that the property purchased by the defendants is inclusive of the suit schedule property belonging to him, it cannot be said that he has title to the suit property. Hence, this issues needs to be answered against him in the negative.
62. Issue Nos.2 and 3 :- Since both these issues are interconnected, they are tried together to avoid repetition of facts. In view of the findings rendered on the preceding issue, now it is proved that the defendants have been in lawful possession of the suit property since 1989 as per Ex.D3 which fact has been categorically admitted by the plaintiff in his pleadings itself. As already held above, in order to ascertain the exact extent of the property sold to the plaintiff in the suit site No.246, he has not placed before the court any authenticated records such as the layout plan or other plan or sketch issued by the competent authorities. No effort is also made by him or by PW1 to produce any concrete materials to show that their predecessors-in-title were also holding any specific extent of this property. Under such circumstances, when he has failed to prove his title over the said property, he cannot be held entitled to the consequential relief of injunction.
63. The claim of the plaintiff that regarding the mandatory injunction seeking for demolition of the structure put 46 O.S.No.4879/2001 up on the suit property, is unsustainable for another reason that no particulars of the alleged structures are furnished in the pleadings or by any supporting documents. If the entire plaint allegations and averments are perused, nowhere it is stated as to when the defendants put up the alleged structure on the suit property. There is also not cause of action pleaded as regards this particular relief. Under such circumstances, when the material particulars about the alleged construction or the date when the defendants started putting up the said structures are no specifically pleaded or proved with any supporting materials, the plaintiff cannot be held entitled to seek the relief of mandatory injunction.
64. It is pertinent to note that as per the own claim of the plaintiff, the deceased D-1 has been in possession of the portion of the tenaments in the suit site No.246 even prior to 1989. However, it has not been substantiated as to which structure he has put up illegally on the suit property. It is further material to note that these allegations that there was an old structure in the suit property and that the same was demolished etc., were not pleaded in the earlier HRC proceeding. On the other hand, as already held above, the schedule of the suit property as furnished in the earlier HRC proceeding in Ex.D16 and D17 is silent as to the existence of any such alleged old structures on the suit property. Therefore, it could squarely be held that the pleadings and the evidence which is made available before the court by the plaintiff is totally vague and inconsistent. Hence, on such bald allegations, he cannot be granted the discretionary relief of mandatory injunction.
65. The plaintiff cannot be granted the relief of mandatory injunction for another reason that even as per his own claim, the 47 O.S.No.4879/2001 possession of the deceased D-1 at the inception was lawful since he was inducted as tenant in the portion of the suit site No.246 by PW1. However, there are absolutely no materials placed before the court either by PW1 or by the plaintiff to prove the existence of such alleged jural relationship of landlord or tenant between either PW1 and the deceased D-1 or between the erstwhile owners Chinnaswamy or Sampangiraman and D-1. Even after the alleged acquisition of the suit property by PW1, there are no documents to show that the deceased defendant had ever paid rental to PW1 so as to prove the alleged attornment of tenancy in favour of PW1.
66. However, from these admitted facts it is undoubtedly be held that the plaintiff and PW1 were well aware of the long possession of the defendants over the northern portion of the schedule site No.246 since 1989 even as per their own case. Even though the plaintiff has failed to prove before the court with any supporting materials as to which is the offending structure put up by the defendants apart from the tenanted premises in their occupation, but nevertheless the fact remains that the factum of possession of the defendants over the said structures was well within the knowledge of the plaintiff and PW1 since past more than 30 years even prior to the filing of this suit, because the defence of the defendants that deceased D-1 was inducted as tenant in the suit property by Jayamma in the year 1968 and subsequently executed the GPA of 1989, has not been specifically disputed or denied by the plaintiff.
67. Therefore, the fact that there were already structures put up on the suit property even prior to 1968 is clearly proved from the evidence on record. Under such circumstances, having full knowledge about such material facts, the plaintiff is now 48 O.S.No.4879/2001 estopped from seeking the relief of mandatory injunction for demolition of the said structures after an inordinate delay which is clearly hit by even the principles of delay, latches and acquiescence. A suit brought for mandatory injunction after an inordinate delay, has to be rejected which is a well settled position of law. It would be relevant to refer a decision of the Hon'able High Court in this regard reported in Subhadrabai Annajji v/s Susheelabai & Ors. in 1983(2) KLJ 377 wherein it is held as under:
Unless the plaintiffs are prompt and diligent in exercising their rights, they cannot be granted the discretionary remedy of mandatory injunction.
Thus, the plaintiffs who claimed to be co-
owners of the open space allowed the defendant to complete the structure and which was complete at the time the suit for mandatory injunction to demolish the structure was filed, the plaintiffs are not entitled to the mandatory injunction. A Mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damages will accrue to him in future.
68. The above principles have been re-iterated in a subsequent decision of the Hon'able Apex Court which is cited by the learned defence counsel reported in Krothapalli Satyanarayana v/s Koganti Ramaiah and others in (1984)2 SCC 439 as under:
"Secs.33 and 39 of Specific Relief Act--
Suit for declaration of rght to a passage--
Delay in filing -Suit filed nine years after the 49 O.S.No.4879/2001 cause of action arose due to encroachment made on the passage and prayer for removal of the encroachment added four years thereafter--Held, the plaintiff acquiesced in the act of encroachment and therefore, dis-
entitled to court's discretionary relief of mandatory injunction for removal of the encroachment of there is an encroachment but, mandatory injunction must be issued to restrain the defendant from making further encroachments".
69. The principles laid down in the above cited decisions have been once again reiterated in a subsequent decision of the Hon'able High Court cited by the defendants' counsel reported in A.V.N. Prasad v/s Sita Bai Raj Purohit in ILR 2006 Kr 4251. Thus, the ratio laid down in all these decisions could aptly be extended to the facts on hand, because as already discussed supra, the factum of lawful possession of the plaintiffs over the suit property and even the structures existing thereon, is clearly proved to be within the knowledge of not only the plaintiff and PW1 but even their predecessor-in-title of the southern portion of the suit site. The said fact is further affirmed in the year 1991 itself when the plaintiff filed the above said HRC proceeding against the deceased D-1. However, no prudent effort has been made till 2001 to seek for the removal of the alleged structures even after dismissal of the said HRC proceeding. Therefore, as rightly argued by the learned defence counsel, the plaintiff having slept over his rights for all these years, is certainly dis-entitled to seek the discretionary relief of mandatory injunction against the defendants. Consequently, he cannot be held entitled to recover the possession of the suit property from the defendants. Hence, 50 O.S.No.4879/2001 both these issues are accordingly answered against the plaintiff in the negative.
70. Issue No.4 :- In view of the findings rendered on the preceding issues, now it is proved from the evidence on record that the plaintiff having utterly failed to establish his lawful title and possession over the suit property, he is not entitled to seek even the consequential relief of mandatory injunction. On the other hand, as per his own admissions in the pleadings, the possession of the defendants over the northern portion of the suit site No.246, he is dis-entitled to seek the relief of mandatory injunction. When the possession of the defendants could not be proved to be illegal, there is no question of considering his prayer for seeking mesne profits from the defendants. Consequently even this issue needs to be answered against him and accordingly it is answered in the negative.
71. Issue No.5 :- The defendants have also taken up a contention that the suit of the plaintiff is hit by the doctrine of res- judicata in view of the dismissal of the earlier HRC proceedings against the deceased D-1 with respect to the suit property. No doubt, the plaintiff was unsuccessful in those earlier proceedings in seeking eviction of the defendants, but it is to be noted that the said proceeding was initiated under the provisions of Rent Control Act. Ex.P15 is the order passed by the concerned court of Small Causes Bengaluru. It is material to note that the said court had dismissed the said petition solely on the ground that the plaintiff had failed to establish his title to the suit property. Since a Rent Control Court cannot given any findings on the issue of title over the tenanted premises, such findings ought not to have been given. If the title of the landlord was in dispute, the course open to the court was to direct the parties to approach a Civil Court to get 51 O.S.No.4879/2001 declared the title issue. Therefore, the said proceeding being a summary proceeding, any finding rendered by such Court on the title of the property, would not operate as res-judicata in this case.
72. In order to invoke the provisions of Sec.11 of CPC, it is be proved that the matter directly and substantially in issue in the former suit is directly and substantially in issue in the subsequent suit and such issue must have been finally heard and decided by the Court in such former suit. In the instant case since the earlier proceeding being a HRC proceeding and as the issue regarding title which has to be decided in this suit being not an issue directly and substantially in issue in the earlier proceeding, the findings and the order passed in that proceeding will not operate as res-judicata in the present suit. Hence, this issue is accordingly answered against the defendants in the negative.
73. Issue No. 6 :- The defendants have also sought for dismissal of the suit on the ground that the suit reliefs are improperly valued and the court fee paid thereon is insufficient. It is relevant to note that till the final disposal of the suit, this issue has not been pressed into service by the defendants. On the other hand, they had allowed the matter to be proceeded with and accordingly the evidence was recorded. Even after the plaintiff furnishing the fresh valuation slip as per the directions of the court, no objections with regard to the sufficiency of the court fee has been raised either by the office or by the defendants. They have also not led any evidence to prove the correct valuation of the suit reliefs and the proper court fee to be payable on such reliefs. Therefore, without any justifiable grounds, this objection raised by the defendants cannot be sustained. Accordingly this issue is also answered against them in the negative.52 O.S.No.4879/2001
74. Issue No.7:- The defendants have sought for dismissal of the suit mainly on the ground that the claim of the plaintiff is hopelessly barred by limitation. As regards the claim of the plaintiff with regard to the relief of mandatory injunction, in view of the findings rendered on issue Nos.2 & 3 it is now proved that the plaintiff has miserably failed to prove that the possession of the defendants over the suit schedule property is unauthorized or illegal. On the contrary, from the evidence on record it is proved that the defendants have entered the possession of the schedule property lawfully with respect to the northern portion of suit site No.246 which is proved beyond any doubt. In view of the fact that the plaintiff himself having admitted such possession of the defendants towards northern side of the suit site since 1968, he has slept over his rights if any, in the schedule property since past more than 30 to 40 years. Therefore undoubtedly it could be said that he is not entitled to seek the discretionary relief of mandatory injunction for demolition of the structure put up on the schedule property and consequently for recovery of possession of the said property from the defendants over which he is now proved to be having no manner of right, title or interest. Even otherwise the claim of the plaintiff to seek any of the suit reliefs is now shown to have been barred by limitation.
75. As already discussed supra, earlier this court dismissed the suit of the plaintiff on the grounds that the suit falls within the purview of Article 65 of the Limitation Act which prescribes a period of limitation of 12 years from the date when the possession of the defendants became adverse to the plaintiff where the plaintiff's suit is based on title. The said findings were seriously agitated by the plaintiff before the Hon'ble High Court in the appeal as already discussed above. No doubt the Hon'ble High Court had remanded the matter by observing that the suit 53 O.S.No.4879/2001 ought not to have been dismissed solely on the ground of limitation when there is serious dispute with regard to the very identity and demarcation of the properties of both plaintiff as well as defendants and therefore the matter needs to be adjudicated and decided afresh and accordingly direction was issued to this Court, but even after assessing the entire evidence on record it is now proved that the plaintiff has utterly failed to prove the existence of any legally enforceable right in his favour with respect to the suit schedule property which is now proved to be exclusively belonging to the defendants. It would be relevant to refer the authorities cited by the learned counsel for defendants in this regard.
76. The first decision cited by the defendants' counsel is reported in Nair Service Society Ltd. v/s K.C. Alexander and others in AIR 1968 SC 1165 wherein the Hon'ble Supreme Court while dealing with the provisions of the Article 64 & 65 of the Limitation Act, held that where a suit is brought for possession acquiring title by adverse possession by assuming the character of owner and exercising peaceably the ordinary rights of ownership has perfectly good title against all the world but the rightful owner and if the rightful owner does not come forward and assert his title by process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. It is further held that in the event of disturbance of possession by a third party and not the owner, the plaintiff can maintain a possessory suit under the provisions of the Specific Relief Act in which the title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.54 O.S.No.4879/2001
77. The principles laid down in this decision will have to be aptly extended to the facts on hand, because as already discussed above, the plaintiff himself has admitted the lawful possessory rights of the deceased defendant over the schedule property since 1968 in the capacity as a tenant under the erstwhile owner. Moreover his title was seriously denied and disputed even in the earlier HRC proceeding in the year 1991 itself. Under such circumstances as rightly argued by the defence counsel, the plaintiff ought to have brought the suit within the prescribed period of limitation within 12 years as contemplated under Article 65 of the Act. However the suit brought after lapse of the said prescribed period is to be held as barred by limitation, as his suit is also based on title according to his claim. It is also not his case that he was in lawful possession of the schedule property and the defendants illegally dispossessed him at any particular point of time. There are even no pleadings to that effect. Under such circumstances as rightly contended by the defendants, the claim of the plaintiff based on his alleged title over the schedule property is certainly to be held as barred under law of limitation and on this count also the suit has to be failed. Accordingly this issue is answered in the affirmative.
78. Issue No.8:- In the light of the findings given on the preceding issues and in the facts and circumstances of the case, the parties to this suit are hereby directed to bear their own cost of litigation. In the result, the Court hereby proceeds to pass the following:-
ORDER The suit of the plaintiff filed for the relief of declaration, mandatory and permanent injunctions and for recovery of possession of 55 O.S.No.4879/2001 the schedule property along with mesne profits is hereby dismissed.
Parties to bear their own costs.
Draw decree accordingly.
(Part of the Judgment directly typed by the P.O. on Laptop and continued further dictation to the Stenographer Grade-I, who transcribed the same on Computer, carried out corrections, print out taken and then pronounced in the Open Court on this the 4th day of January, 2024) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 S. Nanjappa
List of documents exhibited for plaintiff:
Ex.P1 : Power of attorney
Ex.P2 : Sale deed dated 28.10.1966
Ex.P3 : Encumbrance certificate for 1966 to 1974
Ex.P4 : Sale deed dated 28.04.1972
Ex.P5 : Sale deed dated 11.01.1974
Ex.P6 : Tax assessment
Ex.P7 : Receipt
Ex.P8 & 9 : Tax paid receipts
Ex.P10 : Khata
Ex.P11 : Sale deed dated 20.02.1991
Ex.P12 : Endorsement
Ex.P13 & 14: Tax paid receipts
Ex.P15 : C.C. of HRC order
Ex.P.16 : C.C. of sale deed
Ex.P.17,18 : Encumbrance certificates
Ex.P.19 to 21: Photos with negatives
Ex.P.22 : C.C. of sale deed dt:25.03.1996
Ex.P.23 : C.C. of sale deed dt:28.4.82
Ex.P.24 : C.C. of sale deed dt:15.12.95
Ex.P.25,26 : Khatas
Ex.P.27 : E.C.
List of witnesses examined for defendants:-
56 O.S.No.4879/2001
D.W.1 : Ganganarasaiah
List of documents got exhilbited for defendants:-
Ex.D1 : Certified copy of the Sale deed dated
13.9.1982.
Ex.D2 : Typed copy of the sale deed dated 13.9.1982.
Ex.D3 : GPA.
Ex.D4 : Registered sale deed dated 12.12.1999.
Ex.D5 : Special notice issued by BMP dt.11.2.2000.
Ex.D6 : Khatha certificate.
Ex.D7-15 : Tax paid receipts.
Ex.D16 : Certified copy of the HRC petition.
Ex.D17 : Certified copy of the Amended petition.
List of witnesses examined through Court :
C.W.1 : H. Shivakumar
List of documents got marked through Court :
Ex.C.1 : Warrant
Ex.C.2 : Report
X Addl. City Civil & Sessions Judge,
Bangalore.