Karnataka High Court
Badar Begum vs The State Of Karnataka on 28 April, 2025
Author: B. M. Shyam Prasad
Bench: B. M. Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF APRIL 2025
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO.55246/2017
C/W
WRIT PETITION NO. 2761/2023 (LR)
IN WP NO. 55246 OF 2017
BETWEEN
1 . SMT BHARATHI
W/O LATE SATHYANARAYANA
(SINCE DEAD AND THE PETITIONER
NO.2 TO 4 ARE LRS)
2 . SMT P DURGALAKSHMI
D/O LATE SATHYANARAYANA
AGED ABOUT 59 YEARS
3 . SRI P RAMAKRISHNA
S/O LATE SATHYANARAYANA
AGED ABOUT 57 YEARS
4 . SRI CHANDRASHEKAR
S/O LATE SATHYANARAYANA
AGED ABOUT 55 YEARS
PETITIONERS 2 TO 4 ARE
R/AT NO 7,
CHINNASWAMY MUDALIAR ROAD,
TASKER TOWN,
BANGALORE - 560001.
5 . SRI P GOPALAKRISHNA MURTHY
S/O LATE SREERAMULU
2
AGED ABOUT 81 YEARS
R/AT NO 8,
CHINNASWAMY MUDALIAR ROAD,
TASKER TOWN
BANGALORE - 560001.
6 . SMT P MAHALAKSHMAMMA
W/O LATE P SREERAMULU
AGED ABOUT 79 YEARS
7 . SMT SEETHALAKSHMI
D/O LATE P SREERAMULU
AGED ABOUT 73 YEARS
8 . SRI SUBRAMANYAM
S/O LATE P SREERAMULU
AGED ABOUT 71 YEARS
PETITIONER NOS.5 TO 8
R/AT NO 10/44,
THAMBUCHETTYPALYA ROAD,
BANGALORE - 560005.
9 . SRI P VENKATACHALAPATHY
S/O LATE P SREERAMULU
AGED ABOUT 69 YEARS
R/AT NO 13, ARMSTRONG ROAD,
BANGALORE - 560001.
10 . SRI P LAKSHMINARAYANA
S/O LATE P SREERAMULU
AGED ABOUT 63 YEARS
R/AT NO 6,
CHINNASWAMY MUDALIAR ROAD,
TASKER TOWN,
BANGALORE - 560001.
11 . SMT P APARNA
W/O SRI PRABHAKAR
AGED ABOUT 56 YEARS
3
12. SMT P SHRUTHI
D/O SRI PRABHAKAR
AGED ABOUT 32 YEARS
13 . SRI P SAISARAN
S/O SRI PRABHAKAR
AGED ABOUT 25 YEARS
PETITIONER NOS. 9 TO 13 ARE
R/AT SHREE VENKATESHWARA
NO 53/3, 14TH CROSS,
4TH MAIN, CHENNAPPA GARDEN
JAYAMAHALA EXTENSION
BANGALORE - 560046.
...PETITIONERS
(By Sri. H R ANANTHA KRISHNA MURTHY, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY
REVENUE DEPARTMENT
VIDHANA SOUDHA
BENGALURU- 560045.
2. THE SPECIAL DEPUTY COMMISSIONER
FOR ABOLITION OF INAM
NEAR COURT COMPLEX,
BENGALURU - 560009.
3. SRI SELVARAJU
AGED ABOUT 61 YEARS
S/O LATE P N VARADARAJU
4. SMT SUSHEELAMMA
AGED ABOUT 56 YEARS
D/O LATE P N VARADARAJU
5. SMT LAKSHMI
AGED ABOUT 55 YEARS
D/O LATE P N VARADARAJU
4
6. SRI PRAKASH
AGED ABOUT 51 YEARS
S/O LATE P N VARADARAJU
7. SRI JANARADHAN
AGED ABOUT 44 YEARS
D/O LATE P N VARADARAJU
RESPONDENTS 3 TO 7 ARE
RESIDING AT NO 10,
2ND MAIN ROAD, 3RD CROSS,
PADARAYANAPURA MYSORE ROAD,
BANGALORE - 560026.
8. SMT. BADAR BEGUM
W/O LATE MUSTAFA KHAN
AGED ABOUT 67 YEARS
9. SRI. IMRAN KHAN
S/O LATE MUSTAFA KHAN
AGED ABOUT 44 YEARS
10 . SMT. RESHMA KHANUM
D/O LATE MUSTAGA KHAN
AGED ABOUT 43 YEARS
11 . SRI. FARANULLA KHAN
S/O LATE MUSTAFA KHAN
AGED ABOUT 42 YEARS
RESPONDENT NOS.8 TO 11 ARE
R/AT KADUGONDANAHALLI
B.K. COLLEGE POST
ALBOOTHER LEATHER CRAFTS
KUSHALNAGARA NO.18-19
BENGALURU - 560 045.
...RESPONDENTS
(By SMT. VAHEEDA, AGA FOR R1 & R2
SRI. S. SREEVATSA, SENIOR ADVOCATE FOR
Sri. HANUMANTHAPPA HARAVI, ADVOCATE FOR
R8 TO R11; VIDE ORDER DATED NOTICE 15.09.2023
R3 TO R7 DELETED)
5
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 13.10.2017 PASSED BY THE
KARNATAKA APPELLATE TRIBUNAL AT BENGALURU IN
APPLICATION NO. 656/2006-07 AT ANNEX-AAR.
IN W.P.No.2761/2023
BETWEEN
1 . BADAR BEGUM
W/O LATE MUSTAFA KHAN
AGED ABOUT 70 YEARS,
2 . IMRAN KHAN
S/O LATE MUSTAFA KHAN
AGED ABOUT 46 YEARS,
3 . RESHMA KHANUM
D/O LATE MUSTAFA KHAN
AGED ABOUT 42 YEARS,
4 . FARHANULLA KHAN
S/O LATE MUSTAFA KHAN
AGED ABOUT 40 YEARS,
ALL ARE R/AT NO.18-18
KUSHALNAGAR
AL BHADAR LEATHER CRAFTS
ARABIC COLLEGE POST
K G HALLI
BENGALURU-560045.
...PETITIONERS
(By SRI. S. SREEVATSA, SENIOR ADVOCATE FOR
Sri. HANUMANTHAPPA HARAVI, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY ITS SECRETARY,
REVENUE DEPARTMENT,
VIDHANA SOUDHA
BENGALURU-560001.
6
2. THE SPECIAL DEPUTY COMMISSIONER
FOR ABOLITION INAM
NEAR COURT COMPLEX
BENGALURU-560009.
3. SRI SELVARAJU
S/O P N VARADARAJU
AGED ABOUT 65 YEARS,
4. SMT SUSHEELAMMA
S/O P N VARADARAJU
AGED ABOUT 61 YEARS,
5. SMT LAKSHMI
D/O P N VARADARAJU
AGED ABOUT 59 YEARS,
6. SRI PRAKASH
S/O P N VARADARAJU
AGED ABOUT 56 YEARS,
7. SRI JANARDHAN
S/O P N VARADARAJU
AGED ABOUT 49 YEARS,
ALL ARE R/AT NO.10,
2ND MAIN ROAD,
3RD CROSS, PADARAYANAPURA
MYSORE ROAD
BENGALURU-560026.
8. SMT BHARATI
W/O LATE SRI P SATHYANARAYANA
AGED ABOUT 85 YEARS,
9. SMT P DURGALAKSHMI
D/O LATE SRI P SATHYANARAYANA
AGED ABOUT 64 YEARS,
10 . SRI P RAMAKRISHNA
S/O LATE SRI P SATHYANARAYANA
AGED ABOUT 63 YEARS,
7
11 . SRI CHANDRASHEKAR
W/O LATE SRI P SATHYANARAYANA
RESPONDENTS NO.8 TO 11
ARE R/AT NO.7
CHINNASWAMY MUDALIAR ROAD
TASKER TOWN
BENGALURU -560 001.
12 . SRI P GOPALAKRISHNA MURTHY
S/O LATE SRI P SREERAMULU
AGED ABOUT 88 YEARS,
R/AT NO.8, CHINNASWAMY MUDALIAR
ROAD,
TASKER TOWN
BENGALURU-560001.
13 . SMT MAHALAKSHMAMMA
W/O LATE SRI P SREERAMULU
AGED ABOUT 85 YEARS
14 . SMT SEETHALAKSHMI
D/O LATE SRI P SREERAMULU
AGED ABOUT 88 YEARS
15 . SRI SUBRAMANYA
S/O LATE SRI P SREERAMULU
AGED ABOUT 75 YEARS
RESPONDENTS NO.13 TO 15
ARE R/AT NO.10/44,
THAMBUCHETTYPALYA ROAD
BENGALURU-560001.
16 . SRI P VENKATACHALAPATHY
S/O LATE SRI P SREERAMULU
AGED ABOUT 73 YEARS,
R/AT NO.13, ARMSTRONG ROAD
BENGALURU-560001.
17 . SRI P LAKSHMINARAYANA
D/O LATE SRI P SREERAMULU
8
AGED ABOUT 66 YEARS,
R/AT NO.6, CHINNASWAMY
MUDALIAR ROAD, TASKER TOWN
BENGALURU-560001.
18 . SMT P APARNA
W/O PRABHAKAR
AGED ABOUT 60 YEARS,
19 . SMT P SHRUTHI
D/O PRABHAKAR
AGED ABOUT 40 YEARS,
20. SMT P SAISARAN
S/O PRABHAKAR
AGED ABOUT 30 YEARS,
RESPONDENTS NO. 18 TO 20
R/AT SHREE VENKATESHWARA
NO.53/3, 14TH CROSS,
4TH MAIN, CHINNAPPA GARDEN,
JAYAMAHAL EXTENSION
BENGALURU-560046.
....RESPONDENTS
(By SMT.VAHEEDA, AGA R1 & R2;
SRI. H.R. ANANTH KRISHNA MURTY, ADVOCATE FOR
R9 TO R20;
VIDE ORDER DATED NOTICE 11.10.2023 R3 TO R7
DELETED;
VIDE ORDER DATED 15.09.2023 SINCED R8 HAS DIED,
R9 TO R11 ARE LRS OF R8)
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE IMPUGNED ORDER DATED 13.10.2017 PASSED BY
THE KARNATAKA APPELLATE TRIBUNAL AT
BENGALURU IN APPEAL NO. 656/2006-07 PRODUCED
AS ANNEXURE-U.
THESE PETITIONS COMING ON FOR
'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT
MADE THE FOLLOWING:
9
ORAL ORDER
The subsisting dispute in these petitions is about the rival claimants who assert ownership of land measuring 3 acres and 2 guntas in survey No. 113 of K G Byadarahalli, Bangalore [the subject property]. If the petitioners are aggrieved by the Special Deputy Commissioner's order dated 23.12.1964 in the proceedings in No. 109/56-57 under the provisions of Mysore [Personal and Miscellaneous] Inams Abolition Act, 1954 [for short, 'the Inams Abolition Act'] and the subsequent order dated 13.10.2017 in appeal No. 656/2006-2007 by the Karnataka Appellate Tribunal at Bangalore [for short, 'the Appellate Tribunal'], the petitioners in WP No. 2761 of 2023 are also aggrieved by the Appellate Tribunal's order dated 13.10.2017.
2. These writ petitions have been filed in the midst of, and on completion of, certain other proceedings. In detailing the reason for the 10 proceedings in appeal in No. 656/2006-2007, the details of such earlier proceedings and other material facts and circumstances could be set forth. The appeal in No. 656/2006-2007 is as against the order in the proceedings in No. 109/56-57. The parties to these writ proceedings, for the reasons of convenience, are referred to as they are arrayed in the WP No. 55246/2017. The details of all these material proceedings are as follows:
The details of the proceedings in No. 109/56-57:
2.1 Sri Mustafa Khan S/o Ahmed Khan [the eighth to eleventh respondents claim under this person] has filed an application for grant of occupancy rights to the land measuring 8 acres in survey No. 113 of K G Byadarahalli [including the subject property] and lands in survey No. 73 and 97 of K G Byadarahalli under the provisions of the Inams Abolition Act. The Special Deputy Commissioner by the order dated 23.12.1964 has 11 allowed this application which is registered in the proceedings in No. 109/56-57.
2.2 The Special Deputy Commissioner has opined that under the provisions of this Act, a person would be entitled to claim as a permanent tenant [and as such the occupancy rights] if he can show that the duration of his tenancy is co-extensive with the duration of the tenure of the Inamdar who will not be competent to evict him so long as the obligation to pay rent and others is discharged and that Sri Mustafa Khan has established these and therefore he must be granted occupancy rights to the afore said lands.
The details of the proceedings in No. 114/1959-601:
2.3 Sri Narasimhaiah Setty S/o Sri G.Gopala Setty has filed an application for grant of occupancy rights for an extent of 4 acres in survey 1 The order dated 24.09.1965 in these proceedings is called in question by the two sets of petitioners in these petitions. 12
No. 113 of K G Byadarahalli2. It is seen from this application that is assigned No. 114/1959-60, and that it is acknowledged by the Office of the Special Deputy Commissioner on 25.08.1959. Sri Narasimhaiah Setty has asserted grant of Occupancy Rights to the land measuring 4 acres in survey No. 113 of K G Byadarahalli.
2.4 However, a dispute is raised to contend that there is no grant of occupancy rights in favour of Sri Narasimaiah Setty relying upon a set of circumstances to contend that none claiming under him, including Sri P.N. Varadaraju, can assert any grant of Occupancy Rights in Sy. No. 113 and that the Endorsement in this regard cannot be genuine and that the order dated 24.09.1965 in the proceedings in No. 114/1959-60 is a bogus record. 2 A copy of the application is produced as Annexure AZ in WP No .55246/2017 13 The details of the proceedings in appeal No.656/2006-2007 with the Appellate Tribunal:
2.5 The petitioners have filed this appeal under section 28 of the Inams Abolition Act calling in question the Special Deputy Commissioner's order dated 24.09.1965 in the proceedings in No. 114/1959-60. The petitioners, referring to certain previous proceedings involving Sri Katappa3, have asserted title to the subject property [and the larger extent of the Survey No. 113] under Sri P. Sriramulu.
The petitioners have pleaded that until May 2006 they did not know that the Katha for the subject property was mutated in favour of Sri P.N.Varadaraju with the Bruhat Bengaluru Mahanagara Palike; that upon coming to know that the Khata is so made because of the proceedings in No. 114/1959-60, they have preferred this appeal after obtaining a certified copy of the order dated 24.09.1965.
3 Sri. Katappa has commenced proceedings in OS No.3840/1989 contending that he is granted Occupancy rights under the Inams Abolition Act in proceedings No.58/59-60 vide the order dated 13.05.1964. 14
2.6 The petitioners have filed this appeal belated, and the delay is over 40 years and 8 months. As such, they have filed an interim application [IA No.1] for condonation of delay. The Appellate Tribunal, while examining the question whether these petitioners have shown sufficient cause for condonation of delay, has concluded that the delay in filing the appeal cannot be condoned. The Tribunal, because of certain statements made in support of the application, has opined that the petitioners' case that they did not know about the order dated 24.09.1965 in the proceedings in No. 114/1959-60 cannot be believed.
The reason for the present controversy only between the petitioners in these two petitions:
3. The eighth to eleventh respondents assert title to the subject property claiming under Sri Mustafa Khan who is granted Occupancy Rights to certain extents in survey No. 113 of K G Byadarahalli in the proceedings in No. 109/56-57. The petitioners 15 in WP No. 55246/2017 assert title to the subject property [also an extent in survey No. 13 of K G Byadarahalli] claiming under Sri P Sriramulu relying upon certain transfers/judicial proceedings and essentially contending that, because as of the date of vesting under the Inams Abolition Act the land in survey No. 113 of K G Byadarahalli was within the limits of Bengaluru City Corporation, the Occupancy Right is not granted to their predecessors-in-interest, and as such, it could not have been granted either in the proceedings in No. 109/56-57 or in No. 114/1959-60.
3.1 The legal heirs of Sri P N Varadaraju son of Sri Narasimhaiah Setty, who asserted grant in the proceedings in No. 114/1959-60, were also respondents in these proceedings, but they are now deleted from the array resulting in the controversy continuing only between these two sets of petitioners. The legal heirs of P.N. Varadaraju [the third to seventh respondents in WP No. 55246/2017] and the 16 petitioners have filed an application under Order XXIII of the Code of Civil Procedure in this petition.
3.2 The essential terms of this application are that the third to seventh respondents acknowledge that these petitioners are in possession of the subject property, that they [the third to seventh respondents] have no continuing interest in the subject property as they give up the claim under the order dated 24.09.1965 in the proceedings in No. 114/1959-60; that the eighth to eleventh respondents [who are not parties to the compromise] will be at liberty to prosecute the claim against the petitioners.
3.3 This Court upon hearing the respective learned Senior Counsels for the petitioners and the eighth to eleventh respondents, by the order dated 15.09.2023 has allowed the application permitting such compromise inter - se the petitioners and the third to seventh respondents in W.P. No. 55246/2017 and deleting these respondents from the 17 array of parties in such writ petition. Subsequently, with the eighth to eleventh respondents filing a Memo for deletion of the afore said respondents even from the petition in W.P. No. 2761/2023 and the unanimous submission that these respondents could be deleted because they have acceded the rights to the petitioner in the subject property, this Court by order dated 11.10.2023 has permitted such deletion.
3.4 This Court's orders dated 15.09.2023 and 11.10.2023 have attained finality. This Court must observe that as such the controversy which was tripartite with the petitioners in both these writ petitions and the third to seventh respondents in W.P. No. 55246/2017 [and also the respondents in W.P. No. 2761/2023] staking rival claims to the subject property, is now restricted to being essentially a bipartite controversy between the petitioners. 18 A précis of the assertions to claim exclusive title to the subject property
4. The petitioners assert ownership of the subject property contending, amongst others, that their propositus, Sri P. Ramesh purchased a certain extent of lands in survey No. 113 of K G Byadarahalli under the sale deeds dated 13.08.1896 and 10.09.1898; that Sri P.Subbayya and Sri P.Bucchayya executed Release Deed dated 12.06.1927 in favour of Sri P Krishnaiah; that Sri P Krishnaiah has successfully prosecuted suit in O.S. No.74/1924; that Sri P Krishnaiah has purchased a certain other extents in survey No.113 of K G Byadarahalli under the Sale Deed dated 10.09.1934 and 08.11.1934; that Sri P Krishnaiah has also successfully instituted a suit in O.S. No.209/1934 against Sri Munimarappa to protect his interest over the extent of 9 acres and 24 guntas.
4.1 These petitioners also contend that only Sri P Krishnaiah and Sri P A Barton were the 19 owners of the land in survey No.113 of K G Byadarahalli apart from a small extent where Sri Anjaneya Swami Temple is constructed; that Sri P Krishnaiah, who had paid conversion charges and also obtained plans for certain constructions in this larger extent of land in survey No. 113, has executed Release Deed dated 01.12.1952 in favour of Sri P Sriramulu who has constituted a partnership firm for the purposes of carrying on quarry operations in certain portion of this land; that the State of Karnataka has acquired a certain portion of the land for the purposes of constructing a Road and Pipeline under the Machalibetta Water Scheme in the year 1958 concluding with the proceedings in Apex Court on payment of just compensation to Sri P Sriramulu.
4.2 If the petitioners assert title to the subject property contending that an application by 20 Sri P Sriramulu4 under the Inams Abolition Act is not considered only because the land in survey No. 113 of K G Byadarahalli [including the subject property] had ceased to be an agricultural land, the eighth to eleventh respondents assert right and interest in the subject property claiming grant of occupancy rights in the proceedings in No.109/1956-57. There have also been multiple other proceedings between these two petitioners and those claiming under Sri Katappa and Sri Narasimaiah Setty [Sri P N Varadaraju]. The question that is considered by this Court for the disposal of these petitions
5. This Court, in the light of the different proceedings as aforesaid [and the other proceedings which are adverted to in the later part of this order] and the conclusions therein which are relied upon by the petitioners in both these petitions, has heard Sri H R Anantha Krishnamurthy, the learned Counsel for 4 In the proceedings in No.44/56-57 under the Inams Abolition Act which is rejected by the Order dated 27.02.1974.
21the petitioners, and Sri Srivatsa, the learned Senior counsel for the eighth to eleventh respondents, on the following question after extending an opportunity to each of them to suggest questions that should be considered for final disposal of these petitions.
Whether the petitioners' grievance as against the order in Proceedings No.109/1956-57 in favour of the predecessors-in-interest of the eighth to eleventh respondents must be examined in the present proceedings or otherwise. This Court must now refer to the different proceedings and the conclusions that are entered into in these proceedings before referring to the rival submissions.
The writ proceedings in WP No. 16728-16739/1989:
6. The petitioners have filed these petitions calling in question the Special Deputy Commissioner's Order dated 13.05.1964 in the proceedings in No. 58/1959-60. Sri Katappa, one of 22 the respondents in these writ petitions5, claimed title and interest over a certain extent of the land in survey No. 113 of K G Byadarahalli asserting that he was granted occupancy rights to such extent by the aforesaid order dated 13.05.1964. The petitioners have called this Order in challenge contending that neither they nor their predecessor-in-title are issued with notice of the proceedings in No. 58/1959-60 and that there are no records to substantiate that such proceedings had indeed taken place.
6.1 Sri Katappa/ his legal representatives have contested this writ petition questioning the maintainability of the petition adverting to the suit for permanent injunction commenced by Sri Katappa in O.S. No. 3840/1989 while also contending that these petitioners could not have challenged the order dated 13.05.1964 after a lapse of over 25 years. Sri Katappa/his legal representatives have also contested 5 Sri Katappa's legal representatives are brought on record on his demise as respondents No.3(i) to 3(v) in this writ petition in WP No. 16728-16739/1989. 23
the petitioner's interest in the land in survey No. 113 of K G Byadarahalli disputing the description of the lands as mentioned in the different sale deeds asserted by them and the vendor's right to execute such sale deed.
6.2 This Court has directed the jurisdictional Deputy Commissioner to verify the records and file report about the availability of records pertaining to the proceedings in No.58/1959-
60. The Deputy Commissioner has filed affidavits on 03.08.1999 stating amongst others that the details in the Register in VIII [and the other records] only show that they were proceedings in No. 45/56-57 filed by Sri Sriramulu which is rejected by the order dated 27.02.1974, that in the revenue records there is reference to M/s Binny Mill, Sri P Krishnaiah and his sons and Sri Sriramulu and that there are no proceedings in No. 58/1959-60.
6.3 This Court, in the light of this affidavit and the fact that Sri Katappa has 24 commenced suit in O.S. No. 3840/1989 for permanent injunction asserting that he was in possession of the extent claimed by the petitioners, has disposed of the writ petitions by its order dated 13.12.1999 opining that it would be erroneous to quash the proceedings in No. 58/1959-60 directing the civil Court to dispose of the suit on merits without being influenced by any observation in the course of such order. This Court has also opined that the material questions could be examined in such suit.
The proceedings in Writ Appeal No. 1399- 1409/2000
7. The petitioners have carried this order dated 13.12.1999 in an intra court appeal, which is numbered in WA No. 1399-1409/2000 and is connected with other matters. The Division Bench by its order dated 03.06.2002 has disposed of the appeal confirming this Court's order dated 13.12.1999. The 25 Division Bench's observation material for the present purposes reads as under:
This Court will not go into the disputed questions of fact, which need investigation and admittedly, in the instant case, as alleged, the facts are disputed. It also comes from the arguments, averments and particularly from the affidavit of the Deputy Commissioner that there is no order bearing No. 58/59-60 passed by the Special Deputy Commissioner for Inams abolition on 13.05.1964, nor any order is available. It is also stated that no such order is available and the so-called copies of the order produced before this court seem to be fraudulent and fabricated, and this Court will not allow any such order to stand if it is the result of fraud. One can challenge the same in an appropriate court.
In the facts and circumstances of the case, without going into the merits of the case, we do not deem it proper to entertain this case more particularly when the impugned order dated 13.05.1964 is said to be the result of fraud. However the Civil Court is free, if necessary, to consider the aspect whether any such impugned order has been passed, 26 after getting a detailed report on a thorough investigation by the Deputy Commissioner, and thereafter, the Civil Court may decide the issue, if the parties so desire.
The details of the suit in OS No. 3840/1989.
8. Sri Katappa has commenced the suit for permanent injunction against the petitioners for the land measuring 8 acres in survey No. 113 of K G Byadarahalli. The eighth to eleventh respondents are not originally arrayed as defendants, but they are subsequently impleaded. Sri Katappa's legal heirs who are brought on record on his demise have filed a Memo for dismissal of the suit.
8.1 Undoubtedly, this Memo is filed because of the compromise that is reported before this court which is referred to in one of the earlier paragraphs. Simultaneously with the Memo for dismissal being filed, the eighth to eleventh respondents have filed an application for the transposition as plaintiffs. The civil Court, by its 27 order dated 16.01.2023, while dismissing the suit as withdrawn pursuant to the Memo, has also rejected the application for transposition. The details of the writ petition in WP No. 2954/2023:
9. The petitioners in WP No. 2761/2023 have filed this petition calling in question the civil Court's order dated 16.01.2023 in the aforesaid suit in OS No. 3840/1989. In this petition, this Court has examined the merits of the Civil Court's order dated 16.01.2023 in the light of the question whether these petitioners [in WP No. 2761/2023 and the applicant for transposition] have substantial rights against the petitioners to seek their transposition. This Court has opined that even if it is assumed that the eighth to eleventh respondents had a substantial right to be decided against in view of the grant of occupancy rights, they cannot assert that right because their suit in O.S. No. 3644/2005 is dismissed. 28
9.1 This Court has also considered the merits of the contentions on behalf of the petitioners in W.P. No.2761/2023 that the dismissal of the suit in O.S. No.3644/2005 does not operate as res judicata thus:
"........It was submitted that OS 3644/2005 was a mere suit for injunction and the findings in that suit do not operate as res judicata. In regard to this submission it may be stated that there is no rule as such that the decision or finding in a suit for injunction does not operate as res judicata. But in the statement of objections filed by defendants 2 to 12 to the application for transposition filed by the defendants 13 to 16, they have extracted the issues in O.S. No. 3644/2005, and also an excerpt of finding on issue No. 3 to the effect that several parts of land in survey No. 113 came to be acquired as per documents 6 to 19 and it is clear that there is no existence of 8 acres of land as pleaded by the plaintiff and tried to be established by PW1 through her oral and documentary evidence. This being the factual position, 29 no useful purpose would be served even if transposition is permitted."
The details of the SLP [Civil] No. 10348/2023:
10. The eight to eleventh respondents have called in question this Court's order dated 13.03.2023 in the aforesaid writ petition in WP No. 2954/2023. The apex court by its order dated 25.08.2023 has dismissed the special leave petition clarifying that the dismissal of the special leave petition will not "preclude the petitioners from instituting fresh suit in case it is legally permissible in the facts and circumstances", while also clarifying that this dismissal will not preclude these petitioners from pursuing remedies in the pending proceedings. The details of the suit in OS No. 3644/2005 and the judgment therein
11. Sri Mustafa Khan has filed the suit for permanent injunction against the legal heirs of Sri Katappa, Sri Varadaraju and the petitioners asserting exclusive possession over an extent of 3 acres and 5 30 guntas in survey No. 113 of K G Byadarahalli, Bangalore. Upon the demise of Sri Mustafa Khan, his legal representatives, the petitioners in W.P.No. 2761/2023, have continued the suit. The legal heirs of Sri Katappa and Sri Varadaraju have not examined any witness, but the petitioner in these two petitions [W.P. Nos. 2761/2023 and 55246/2017] have examined their respective witnesses, and they also marked certain exhibits.
11.1 The petitioners also rely upon the observations in the judgement in the suit to contend that this Court must quash the Special Deputy Commissioner's order dated 23.12.1964 in the proceedings in No.109/56-57 under the Inams Abolition Act, and this Court must record that if, either because of the observations in the judgement in this suit or the observations in the other proceedings, the order dated 23.12.1964 is quashed, these petitioners will assert vindication of their interest in the subject property, while the eight to 31 eleventh respondents will have lost out on their right to the subject property.
11.2 The civil Court by its judgement and decree dated 07.10.2014 has dismissed the suit. The civil Court, amongst others, has observed that though one of the legal heirs of Sri Mustafa Khan did enter the witness box as PW1, she has not offered herself for completion of the cross-examination and these legal heirs have also not taken any measure to ensure that the original records are summoned to establish the grant of occupancy rights in the proceedings in No. 109/56-57 despite the rival contention that the documents pertaining to these proceedings are fabricated. Crucially, the civil Court, after referring to the suit in OS No. 3840/1989 commenced by Sri Katappa [which was pending as of the date of the judgement] as a comprehensive suit and concluded that title to the subject property cannot be decided in the suit for permanent injunction. The civil Court, with this observation and 32 the opinion that the decision of apex court in Anathulla Sudhakar v. P Buchi Reddy6 would squarely apply to the facts of the case has concluded that ....... There is already a title suit pending before this court being filed by defendant Nos. 1 to 5 against the plaintiff and also the defendant Nos. 6 to 9 and others, this Court is of the firm opinion that the plaintiff has failed to prove the lawful possession or the suit schedule property on the date of the suit basing on exhibits P1 to P 11. The rival submissions
12. Sri Anantha Krishnamurthy, the learned counsel for the petitioners proposes to rely upon the transactions commencing from the year 1896 between Sri. P Ramesh and Sri P Krishnaiah, and the later transaction between Sri P Krishnaiah and Sri P Sriramulu as also the proceedings prosecuted by Sri Krishnaiah prior to 1940, relies upon a set of circumstances to contend that if this Court could opine that there could not have been a grant of 6 AIR 2009 SCW 2692 33 occupancy rights under the provisions of the Inams Abolition Act, the question for consideration must be answered in favour of the petitioners declaring that the special Deputy Commissioner's order dated 23.12.1964 in the proceedings in No. 109/56-57 are dubious and non est. The circumstances relied upon by the learned counsel, shorn of the details that will not be material, are as follows.
• The Deputy Commissioner, Bengaluru, when called upon by this Court in WP Nos. 16728- 16739/1989, has filed a detailed affidavit stating in categorical terms that the revenue records show entries only in favour of Sri P Krishnaiah and Sri P Sriramulu [and in favour of the undisputed ownership of M/s Binny Mill] and that the entries in Register No. VIII maintained as required for the purposes of the Inams Abolition Act show only the proceedings in Nos. 44/55-56 and 45/55-56.
34• The proceedings in No. 44/55-56 is at the instance of the petitioners' predecessor-in- interest, and the request in these proceedings for grant of occupancy rights to the land in survey No. 113 of K G Byadarahalli is rejected on the ground that this land is within the Bangalore City Corporation limits. The proceedings in No. 45/55-56 are also closed in similar terms. The petitioners' predecessors-in- interest who undeniably had interest in the land in survey No. 113 of K G Byadarahalli have not been issued with any notice.
• A portion of the land in Survey No. 113 of KG Byadarahalli, undeniably, has been acquired for the purposes of the Machalibetta Water Scheme in the year 1958. The petitioners, and their predecessors-in-interest, have prosecuted reference for payment of higher compensation resulting in a judgement of the apex court in the year 1984.
35• The Bangalore Development Authority in the year 1977-78 has issued notifications for acquisition of lands in survey No. 113 of KG Byadarahalli. Again, a son of Sri P Sriramulu has challenged the acquisition proceedings, and he is also commenced suit in O.S. No. 60/1995 for permanent injunction against the BDA. The concerned civil Court has decreed the suit by its judgement and decree dated 21.01.2009. The BDA is unsuccessful in its appeal in RSA No. 309/2009 as against such judgement. This court has dismissed the appeal but with the observation that this disposal shall not close the remedies that law permits to the Authority. • The eighth to eleventh respondents have commenced suit in O.S. No. 3644/2005 for permanent injunction not just against the petitioners and the others but also against the other claimants. The defendants, including the 36 petitioners, have denied the genuineness of the records produced to assert grant of occupancy rights in the proceedings in No. 109/56-57. The suit is dismissed, and the judgement and decree in this regard is not carried in appeal. The civil Court in dismissing the suit has clearly opined that the eighth to eleventh respondents have not established the grant of occupancy rights, and with this conclusion having attained finality, these respondents cannot assert any interest in the subject property relying upon the proceedings in No. 109/56-57.
• The eighth to eleventh respondents filed an application for their transposition as plaintiffs in O.S. No. 3840/1989. This application is rejected simultaneously with the leave to withdraw the suit. These petitioners have carried the order in this regard in challenge in WP No. 2954/2023. This writ petition is 37 dismissed holding that the petitioners cannot assert any interest in the subject property because of the disposal of the suit in O.S. No. 3644/2005. The Apex Court, in the SLP filed as against this Court's order in W.P.No. 2954/2023, has clarified that it would be open to these petitioners to file a suit or to prosecute pending proceedings, and this would only mean that all questions could be considered in these writ proceedings.
13. Sri Srivatsa, the learned Senior Counsel for the eighth to eleventh respondents, while not disputing any of the aforesaid proceedings or the conclusions therein, submits:
• firstly, that the petitioners cannot defeat the claims of the other petitioners to the subject property based on the title flow from the year 1892 or the proceedings prior to the coming into force of the Inams Abolition Act because the subject land, undeniably, stood vested with 38 the State Government subject to grant of occupancy rights and Sri Mustafa Khan is granted occupancy rights to the subject property in the proceedings in No. 109/56-57; • secondly that until an amendment in the year 2024 in the present proceedings, the petitioners have not called in question the Order dated 23.12.1964 in the proceedings in No. 109/56-
57;
• thirdly that the petitioners admit that certain portions in survey No. 113 of K G Byadarahalli was used for quarrying and the Bangalore Development Authority has also acquired certain portions of lands in this survey number with earlier acquisition by the State government for a water scheme and this demonstrates that there is serious dispute about the identity of the property as claimed by them.
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13.1 Sri Srivatsa, on the reliance upon the affidavit filed by the Deputy Commissioner in W.P. Nos. 16728-16739/1989 and the outcome in the suit in O.S. No. 3644/2005 and W.P. No. 2954/2023 canvasses the following to refute the assertion that any suit by the eight to eleventh respondents would be barred by res judicata.
[a] The Deputy Commissioner has filed an affidavit in W.P. No. 16728-16739/1989 as stated by Sri Ananth Krishnamurthy, but this Court has disposed of this petition leaving open all questions to be decided in the suit in O.S. No. 3840/1989. This conclusion has also been affirmed by the division bench opining that generally disputed questions of facts will not be examined under Article 226 of the Constitution of India. The question whether the documents relating to the proceedings in No.109/56-57 are genuine or otherwise is a question of fact which must be examined, and this question has not 40 been examined in this suit in O.S. No. 3840/1989 as the suit is withdrawn.
[b] This Court in W.P. No. 2954/2023 has observed that the eighth to eleventh respondents cannot seek transposition in the suit in O.S. No. 3840/1989, but the Apex Court has clarified, while disposing of the SLP filed against this Court's order in this writ petition in W.P. No. 2954/2023, that these respondents will be at liberty to prosecute the pending proceedings in accordance with law. This defeats the argument based on the findings of this Court in W.P. No. 2954/2023.
[c] This civil Court in O.S. No. 3644/2005 has categorically opined that the question of title to the subject property must be examined in the comprehensive suit in O.S. No. 3840/1989 and that this question is not examined in a suit for permanent injunction.
41
13.2 Sri Srivatsa relies upon the following decisions in support of his canvass as aforementioned.
• Anathula Sudhakar v. P. Buchi Reddy [dead] by LRs and Others7 This decision is relied upon for the proposition that the question of title would arise only incidentally or collaterally and therefore a subsequent suit for declaration would not be barred unless the question of title was directly and substantially in issue. • V Rajeshwari v. T.C. Saravanabava8 - This decision is relied upon to emphasize that the rule of res judicata is based on the public policy that there should be a finality to the litigation and no one should be vexed twice for the same cause but the plea of res judicata must be based on the foundation of specific pleadings in 7 (2008) 4 SCC 594 8 2004 1 SCC 551 42 that regard and a conclusion based on issue in this regard.
• Gram Panchayat of Village Naulakha v. Ujagar Singh and Others9 - This decision is relied upon to canvass that if in an earlier suit for injunction, the question of title was not gone into, the decision in such earlier suit cannot be binding on the question of title.
• Ayan Chatterjee v. Future Technology Foundation Inc., and Others10 - This decision is relied upon to buttress the case that this Court's opinion in W.P. No.2954/2023 is in an interlocutory proceedings which is prima facie in nature and does not in any manner affect the final outcome in the suit.
This Court's reasoning:
14. This Court must answer the question whether this Court in the present proceedings, can
9 (2000) 7 SCC 543 10 (2017) 13 SCC 542 43 render the final opinion on the petitioners' grievance with the order dated 23.12.1964 in the proceedings in No. 109/56-57, which in substance is the question framed for consideration. This question must be examined based on facets such as that there are no proceedings at all in No. 109/56-57 or there is egregious fraud in the eighth to eleventh respondents relying upon such proceedings, and whether there are concluded findings that operate as res judicata as against the eighth to eleventh respondents.
14.1 This Court, on the first facet, must observe that the petitioners rely upon the assertions such as that [i] the eighth to eleventh respondents do not have the benefit of revenue entries for the subject property based on the order dated 23.12.1964 in the proceedings in No. 109/56-57, [ii] their predecessors- in-interest have not been issued with notice in these proceedings, [iii] the documents secured by them only indicate the proceedings in No. 44/56-57, [iv] their predecessors-in-interest have prosecuted 44 multiple proceedings to protect their interests in the lands in survey No. 113 of K G Byadarahalli but the eighth to eleventh respondents cannot assert that they have conducted such proceedings, [v] the Deputy Commissioner in W.P. No. 16728-16739/1989 has filed an affidavit stating that there are no proceedings for grant of Occupancy Rights to the land in Sy.No. 113 of K G Byadarahalli except the proceedings in No. 44/56-57 [and 45/56-57].
14.2 It is indisputable that it is in the light of these very aspects, though in the context of the petitioners' grievance as against the grant of occupancy rights in favour of Sri Katappa, that this Court has disposed of this petition in W.P. No. 16728-16739/1989 by order dated 13.12.1999 opining that:
....... This is a clear case where every aspect of the matter is in dispute at every stage. In such circumstances, when the parties have already approached the Civil Court and an interim order has been obtained on the same question of fact, it would not be appropriate 45 for this Court to resolve this matter under Article 226 of the Constitution of India. Indeed, it would be erroneous for a court to quash the impugned order without a proper enquiry, and indeed the civil court is the proper place to resolve this dispute. A Division Bench of this Court, in the intra court appeal in W.A.No. 1399-1409/2000 as against this Court's order dated 13.12.1999, has held as follows;
In the facts and circumstances of the case, without going into the merits of the case, we do not deem it proper to entertain this case more particularly when the impugned order dated 13.05.1964 is said to be the result of fraud.
However, the civil Court is free, if necessary, to consider the aspect whether any such impugned order has been passed, after getting a detailed report on a thorough investigation by the deputy Commissioner, and thereafter, the civil court may decide the issues, if the parties so desire.
This observation is in the context of the petitioners' grievance as against the grant of occupancy rights in 46 favour of Sri Katappa, but almost these very aspects are pressed into service on behalf the petitioners.
14.3 This Court is of the definite opinion that when in very similar circumstances an opinion as aforesaid is expressed and is confirmed by a Division Bench with the parties prosecuting the suit for over two decades, the petitioners have not placed on record any material to justify an opinion in the present writ petition that will be different. Further, it is trite that if a right is to be defeated by fraud, there must be specific pleadings and such specific pleadings must be established by cogent evidence, and in the present case, where the challenge to the order dated 23.12.1964 in the proceedings in No. 109/56-57 is introduced by way of an amendment, the petitioners cannot succeed on this ground as well.
14.4 As such, this Court cannot opine that the petitioners, in seeking adjudication on this aspect in the present proceedings, can foreclose the 47 right in the eighth to eleventh respondents to seek vindication of their interest in the subject property in a properly constituted suit, if such right is available to them in view of the conclusions in the suit in O.S. No. 3644/2005 or in the writ petition in WP No. 2954/2023.
14.5 The petitioners' plea of res judicata is based on the opinion of the civil Court in the suit in O.S. No. 3644/2005 and this Court's opinion in W.P. No.2954/2023. The civil Court's opinion on the question of title to the subject property in the suit in O.S. No.3644/2005, which is only a suit for permanent injunction, reads as under:
Under these circumstances, since the present suit of the plaintiff is only for the relief of permanent injunction and having regard to the rival title being set up by defendant Nos. 1 to 5 on the one hand and the defendant Nos. 6 to 9 on the other and the defendant Nos. 20 and 21 have also claimed that, they have also purchased a portion of the land in survey No. 113, the 48 case of the plaintiff as presented before the court is not very simple so has to decide the possession of the plaintiff unless the title to the land is established and that title cannot be established in a suit for permanent injunction.
14.6 It is obvious from this conclusion that the civil Court has not gone into the question of title between the petitioners and the eighth to eleventh respondents. It is trite that for the plea of res judicata to be accepted, the issue [the matter] must have been directly and substantially in issue in the former suit and must be finally heard and decided by the Court in the former suit. If these two requisites and the next two requisites viz., that the former suit must be between the same parties or between the parties who claim under the same title and is instituted with the competent Court are established, the plea of res judicata could be accepted.
14.7 It is also settled that the twin tests of necessity and essentiality must be applied to test 49 whether the matter was directly and substantially in issue in the former suit. This aspect will depend on the rival pleadings and evidence. If a reference in this regard could be made to the Apex Court's decision in Jamia Masjid v. K V Rudrappa (since dead by) LR's11, this Court must also refer to the Apex Court's decision in Prem Kumar and Others v. Brahm Prakash and Others12 to observe that a decision in the former suit will not operate as res judicata unless it is decided on merits based on pleadings.
14.8 This Court, in the light of this law and the indisputable position that the civil Court in O.S. No.3644/2005 has not examined the question of title, cannot opine that the petitioners must succeed in their challenge against the Order dated 23.12.1964 in the proceedings in No.109/56-57 on the ground of res judicata because of the outcome in O.S. No.3644/2005.
11 (2022) 9 SCC 225 12 2023 SCC Online SC 356 50 14.9 As regards this Court's observation in W.P. No.2954/2023, that no useful purpose would be served in permitting the petitioners' transposition as plaintiffs in the suit in O.S. No.3840/1989 and this opinion operating as res judicata or the reliance on the proposition that prima facie opinion in the interlocutory proceedings would be confined to such proceedings and will have no bearing on the outcome in the suit, it would suffice for this Court to observe that when this Court's order in W.P. No.2954/2023 is called in question before the Apex Court in SLP [Civil] No.10348/2023, the Apex Court has specifically observed that the eighth to eleventh respondents' right to commence a fresh suit or continue the pending proceedings would not be affected. This clinches the answer on this aspect and as such, the petitioners cannot succeed in the present petitions even on this ground. Hence, the following: 51
ORDER The petitions are disposed of reserving liberty to the parties to work out their remedies in a properly instituted suit observing that all questions of law and facts, including the plea of res judicata, are left open to be considered in such proceedings.
Sd/-
(B.M. SHYAM PRASAD) JUDGE nv*