Bangalore District Court
Yarramma vs Thimmappa Reddy Thimmappa on 16 January, 2024
1
O.S. No.3609/2015
KABC010092312015
IN THE COURT OF LXXV ADDL. CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE (C.C.H.76)
Present: Mamtaz, M.A., LL.B., P.G.D.C.A.
IX Addl. City Civil & Sessions Judge,
Bengaluru
C/C. LXXV Addl. City Civil & Sessions Judge,
Bengaluru
Dated: This the 16th day of January 2024
O.S. NO.3609/2015
Plaintiff : 1. Yaramma,
w/o. Narayana Reddy,
aged about 77 years
2. Narayana Reddy,
s/o. Late Chikkamuniswamappa,
aged about 84 years.
Both are agriculturists,
residing in Sy.No.81/4A,
BGS school road,
Near Meenakshi Mall, Hulimavu,
Bannerughatta road,
Bengaluru-560076.
[By Sri.V.B.S. Advocate]
- Vs -
2
O.S. No.3609/2015
Defendants : 1. Thimmappa Reddy @ Thimmappa,
s/o. Late Muttappa,
aged about 82 years
since deceased
legal representatives already on
record defendants No.2 to 8.
2. Srinivasa Reddy @ Seenappa,
s/o. Thimmappa Reddy @
Thimmappa, aged about 54 years
3. T.Ramachandra Reddy @
Chandrappa,
s/o. Thimmappa Reddy @
Thimmappa, aged about 52 years
4. T.Prakash Reddy @ Maani,
s/o. Thimmappa Reddy @
Thimmappa, aged about 48 years
5. T.Ravi Reddy,
s/o. Thimmappa Reddy @
Thimmappa, aged about 44 years
6. T.Venugopal Reddy,
s/o. Thimmappa Reddy @
Thimmappa, aged about 42 years
7. Manjula,
D/o. Thimmappa Reddy @
Thimmappa,
aged about 50 years
8. Chinnamma,
w/o. Thimmappa Reddy,
aged about 73 years
Since deceased
legal representatives already on
record defendants No.2 to 7
3
O.S. No.3609/2015
Defendants No.1 to 8 are
r/at No.3/1A, near Rama Temple,
Hulimavu, Bannerughatta road,
Bengaluru-560076.
(By Sri.K.T.N.G. for D-2 to D-8 &
D-1 Dead)
Date of institution
of the suit : 22.04.2015
Nature of the suit : Possession
Date of the commencement
of recording of the evidence : 16.02.2021
Date on which the
Judgment was pronounced : 16.01.2024
Year/s Month/s Day/s
Total Duration -08- -08- -04-
(MAMTAZ)
IX Addl. City Civil & Sessions Judge,
Bengaluru.
C/C. LXXV Addl. City Civil & Sessions Judge,
Bengaluru
-----
JUDGMENT
This is a suit for declaration and injunction.
2. Brief facts of the plaintiff case is that, the lands bearing Sy.No.81, 82 and 83 of Hulimavu Village, are situated adjacent of each other certified copy of the survey map of Hulimavu Village. Subsequently, during different periods the said lands have been 4 O.S. No.3609/2015 phoded. It appears the during 1929 the Sy.No.81 totally measuring 9 acres 32 guntas has been sub-divided into to Sy.No.81/1, Sy.No.81/2, Sy.No.81/3 and Sy.No.81/4 measuring 1 acre 36 guntas, 2 acres 36 guntas and 3 acres 20 guntas respectively, including Karab, Thereafter, it appears that the Sy.No.81/4B and Sy.No.81/4C measuring I acre 13 guntas, I acre 15 guntas and 32 guntas respectively including karab, Rough sketch of the said lands. One Thogur Ramaiah @ Ramaiah S/o. Thogur Nagappa was the owner of the entire extent of the lands in Sy.No.81/2 measuring 1 acres 36 guntas including karab and Sy.No.81/4, (new Sy.No.81/4A, Sy.No.81/4B and Sy.No.81/4C) totally measuring 3 acres 20 guntas including 14 guntas of karab. The said Thogur Ramaiah exercising his right in respect of said Sy.No.81/4 (which totally measures 3 acres 06 guntas excluding 14 guntas of karab) under registered sale deed dated 01.05.1943 vide Doc.No.4250/1942-43 sold the land in Sy.No.81(new Sy.No.81/4) mentioning the extent of about 2 ½ acres excluding karab situated within the boundaries east by Government Govi bande, west by land of Chowdappa, north by Sy.No.83 and south by kathale beli and Gomal in favour of one Venkatamma who is the mother-in-law of the plaintiff no.1 and mother of plaintiff No.2. As on 01.05.1943 as Sy.No. 83 was not subdivided, the eastern boundary of the land purchased in Sy.No.83 under said sale deed dated 01.05.1943 was the remaining portion in Sy.No.83. Later it was assigned new Sy.No.83/4 after phodi on 5 O.S. No.3609/2015 11.09.1943. However, it was wrongly shown as government bande instead of the remaining portion of the land belongs to Thogur Ramaiah in Sy.No.83 purchase from Srikantaiah. The original registered sale deed dated 01.05.1943 being lost, on the eastern side of Sy.No.81/4 there was/is government Gavi bande and on the northern side there was/is Sy.No.83, (new phodi Sy.No.83/3, 83/4, 83/5 and 83/6). While writing the said sale deeds eastern side boundaries of the said 2 bits of land have been inter changed without their knowledge and there was also minor changes in respect of other boundaries. Subsequently, under registered sale deed dated 26.09.1948 vide document No.1756/1948-49 the said Venkatamma inturn sold the land comprised in Sy.No.81 (Sy.No.81/4, further phodi Sy.Nos.81/4A, 81/4B, 81/4C) to the said Thogur Ramaiah. In the said sale deed also, the eastern boundary of the said land was wrongly shown as Lakshmamma's land instead of showing government government govibande. Similarly, in the said sale deed the northern boundary of the said land was wrongly shown as Miniyamma's land instead of showing the land in Sy.No.83(belongs to Venkatamma).
3. It is further submitted that, under registered sale deed dated 03.11.1952 vide document No.5205/1952-53 the said Thogur Ramaiah sold the very same land in favour of one H.Muniyappa Reddy by giving wrong boundaries on eastern side 6 O.S. No.3609/2015 and northern side as stated in preceding paragraph No.7. However, by giving correct boundary in the southern sides as Gomal and on the western side as land belongs to Abbaiahappa the subsequent purchaser. Under registered sale deed dated 18/23.07.1957 vide document No.1614/1957-58 the same land has been purchased by the plaintiffs in the name of their minor son Muttappa by mentioning the very same wrong boundaries as stated in the paras 7 and 8 by mentioning east by:
Lakshmamma's West by: Abbiah's land, North by: Muniyamma and South by: Gomal. The original of the registered sale deed dated 18/23.07.1957. However, the mistaken boundaries continued without their knowledge. On the eastern boundary of the land bearing Sy.No.81 (Sy.No.81/4 and new phodi Sy.No.81/4A, 81/4B and 81/4C) was wrongly mentioned that the land belongs to Lakshmamma istead of government gavibande in all the sale deeds. It is submitted there was/is no land belongs to the said Lakshmamma on the eastern side of Sy.No.81, new phodi Sy.No.81/4A, 81/4B and 81/4C. The said Muttappa died during his minority, the plaintiffs being his parents have succeeded to the said property as its owners. The defendant No.1 is falsely claiming the schedule property based on the sale deed dated 05.11.1964. In fact, the subject matter of land in the sale deed dated 05.11.1964 was alienated under the sale deed dated 05.10.1979. Whatever right accrues to the defendant No.1 under the said sale deed dated 05.11.1964, the 7 O.S. No.3609/2015 same was lost under the sale deed dated 05.10.1979. Having lost land, how defendant No.1 and his sons are falsely claiming the land belongs the plaintiffs. As such the defendants have lost their right over Sy.No.81/2, but taking undue advantage of mentioning of wrong boundaries in the sale deeds of the plaintiffs and their of land belongs to the plaintiffs in Sy.No.81/4, (new phodi Sy.No.81/4A, 81/4B and 81/4C) and further in collusion with revenue officials by making false representation before the Tahsildar. The plaintiffs have contested the matter by filing their objection. Further, in their absence, the defendant no.1 colluding with the revenue officials got the land surveyed and prepared a false sketch, based on the false statements of the persons who were in his favour. Ultimately, based on the false survey, the revenue proceedings were closed by passing an order with the observation that it is only in respect of RTC entries and the parties to sort out their remedies in civil court regarding their possession. However plaintiff continued to be in physical possession of Sy.Nos.81/4A, 81/4B and 81/4C. Based on the false survey report the defendant No.1 got his name entered in respect of 32 guntas in Sy.No.81/4A and 20 guntas in Sy.No.81/4B. Certified extracts of RTC extract of Sy.Nos.81/4A and 81/4C for the years 1969-78 to 1982-83 and RTC extract of Sy.No.81/4C for the years 1969-70 to 1973-74.
4. It is further submitted that, the plaintiffs have filed 8 O.S. No.3609/2015 OS.No.495/1982 for declaration and injunction in respect of some portion of land. As such the plaintiff have withdrew the said suit with liberty to file fresh suit and filed OS No.7098/1991 for the relief of declaration of title and permanent injunction in respect of Sy.No.81/4A, 81/4B and 81/4C totally measuring 3 acres 20 guntas. In the said suit, the Hon'ble civil court was pleaded to grant temporary injunction on 08.09.1994 against the said order defendants filed an Appeal in MFA No.1782/1994 before the Hon'ble High Court. After hearing both the parties, the Hon'ble court was please to dispose of matter by its order dated 01.03.1995 directing parties to maintain status quo in respect of schedule property in its nature and restraining from creating any third party rights and interest. In the event of necessity, the concern parties shall approach the court to obtain order for alteration. Subsequent to disposal of the MFA, without notice to the plaintiffs in the said MFA No.1782/1994 during October 2000 by making an application IA.3 before the Hon'ble High Court of Karnataka seeking permission to put up brick compound wall as mentioned in the IA and in the accompanying affidavit stating that there are three buildings in their land let out to tenants in Sy.No.83/4 and there was barded wire fencing. Further, they stated that for security reasons they intend to replace barbed wire fencing with brick compound wall. Thereafter, the defendants managed to obtain an order on 05.01.2001 by misleading the court and without serving notice to 9 O.S. No.3609/2015 the plaintiffs. Based on that order in MFA No.1782/1994 on 9 th and 10th February 2001 the defendants have illegally put up pakka compound wall covering the entire land in Sy.No.81/4B, which is more fully described in the schedule given hereunder the hereinafter referred to as the suit schedule property, instead of replacing barbed wire fencing then existing in the land bearing Sy.No.83/4 around three Sheds, by suing bricks. However, as the report of the court commissioner could not depict correct picture, the plaintiffs have filed their detailed objection. The said Review Petition was disposed off with a direction to construct wall in between Sy.No.83/4 and Sy.No.81/4A and 81/4B, and further to appoint receiver in respect of the southern portion of Sy.No.83/4 i.e., the schedule property illegally occupied by the defendants and the trail court to pass an appropriate order in this regard for appointment of receiver, for payment of cost and its maintenance which is subject to disposal of original suit. An application was filed by the plaintiffs before the trial court for implementation of the said order and accordingly, though ADLR has been appointed as receiver, subsequently in view of the direction of the Hon'ble High Court for disposal of the suit within the time limit, the main suit itself has been disposed off dismissing the same by its judgment and decree dated 01.09.2004. It is pertinent to mention here that the alleging interference in respect of the property bearing Sy.No.83/4 situated on the northern side of the 10 O.S. No.3609/2015 schedule property i.e., Sy.No.81/4B, the defendants have filed a suit in O.S.No.4851/1995 for permanent injunction against the plaintiffs. Wherein in the plaint it was averred that in Sy.No.83/4 there re three industrial sheds and on its southern side there is Sy.No.81/4A and 81/4B and a rough sketch also produced by them demarcating the building and the vacant land. Aggrieved by the said judgment and decree passed in OS No.7098/1991, the plaintiffs have filed an appeal before the Hon'ble High court in RFA No.1179/2004. The said matter was disposed on 15.11.2010 declaring that the plaintiffs are owners of the land under Ex.P8-the sale deed dated 18/23.07.1957. There was no observation of findings or order was passed in the said judgment regarding handing over of possession of Sy.No.81/4B- the suit schedule property which lies within the boundaries mentioned in Ex.P.8 sale deed dated 18/23.07.1957, due to mentioning of wrong boundaries, the dispute arose between parties. During pendency of the appeal before the Hon'ble High Court and during the subsistence of the interim order of temporary injunction, in order to knock off the suit schedule property the defendants in collusion with each other, they have concocted registered partition deed dated 22.08.2007 behind the back of these plaintiffs. The very fact was came to the knowledge of the plaintiffs during the second week of August 2013. The plaintiffs being not the parties to the said transactions and defendants have no right to deal with the schedule property, 11 O.S. No.3609/2015 the said registered transaction is void in the eye of law and the same is not binding on the plaintiffs. It is further contended that, during pendency of the proceedings before the court the defendants have encroached upon the suit schedule property illegally by putting up compound wall on its boundaries, which belong to the plaintiffs. The plaintiffs being the absolute owners of the schedule property they are entitled for possession of the same. Further, instead of handing over vacant possession of the suit schedule property, the defendants are illegally squat over the suit schedule property and further the defendants refused the request of the plaintiffs to handover the possession of the suit schedule property. The cause of action for the suit arose on 15.11.2010 when RFA No.1179/2004 has been disposed off confirming the right of ownership of the plaintiffs in respect of the suit schedule property and on 14.10.2014. When the application for correction of boundaries and extent, made by the plaintiffs in RFA No.1179/2004 has been rejected and subsequently when the defendants refused to hand over possession of the schedule property to the plaintiffs during last week of February 2015 when the defendants attempted to illegally alienate the suit schedule property to third persons and subsequently within the jurisdiction of this Hon'ble court, at Bengaluru. Hence, this suit.
5. After receipt of the suit summons, the defendants 12 O.S. No.3609/2015 appeared through their counsel. The defendant No.1 and 2 filed written statement contending that, the plaintiffs are the chronic litigators and only with an intention to harass and cause loss to the defendants, though the plaintiffs are aware, that they have been granted a limited relief in R.F.A.No.1179/2004, yet they are continuing to make an unrighteous claim to grab the property of the defendants and thereby went on making applications in R.F.A.No 1179/2004. The plaintiffs are seeking a relief of possession of the Suit Schedule Property on the assumption that, their title to the suit schedule property has been declared by the Hon'ble Court of Karnataka in R.F.A.No.1179/2004, which is absolutely incorrect. The operative portion of the judgement in R.F.A.No.1179/2004. As per the allegations made at Paragraph 3 of the plaint that, it is clear the land bearing Sy.No.81 totally measures 9 Acres 32 Guntas and the said Survey number was bifurcated into several sub-numbers during the year 1929 itself and the plaintiffs claim their title as per the sale deed dated 01.05.1943. The Hon'ble High Court granted decree in favour of the plaintiffs measuring about 2 Acres of land in Sy.No.81 of Hulimavu and for the land which is situated within the above said boundaries. There is no identity of the land claimed by the plaintiffs for which decree is granted. There is no prayer for declaration of the plaintiff's title to suit schedule property. Therefore the suit is not maintainable. As admitted by the plaintiffs, they filed a suit for declaration and other 13 O.S. No.3609/2015 consequential reliefs in respect of land bearing Sy.No.81/4A, 81/4B, 81/4C of Hulimavu Village, totally measuring 03. Acres 20 Guntas. In the said suit, it is the specific contention of the plaintiff that, eastern boundary of the property purchased by them is mentioned as Smt. Lakshmamma's land, which is a mistake crept in and the correct boundar is Government Gavi Bande. The Hon'ble High Court of Karnataka in R.F.A.No.1179/2004 at Paragraphs 17 of the judgment is held as follows:-
" No doubt the plaintiff's have claimed declaration by describing the boundary, particularly on the eastern side as Government Gavi Bande, however in the light of the sale deeds at Exhibits P5, P6, P7 and P8, the undisputed registered sale deeds, wherein the boundary on the eastern side is shown as Smt. Lakshmamma's property (Defendant's Property)"
The Hon'ble High Court passed Judgment confirmed the defendants title as shown in Exhibit D.11 as shown in the registered sale deed. Therefore it is clear that, the property belonging to the defendants, is to the east of the property claimed by the plaintiffs. The Hon'ble court was pleased to dismiss the suit in O.S.No.7098/1991. The plaintiffs filed an appeal in R.F.A.No.1179/2004 before the Hon'ble High Court of Karnataka Bangalore. The issue No.1 in that suit reds as follows:-
"Whether the plaintiffs prove that, they are the owners of 14 O.S. No.3609/2015 the property described in the plaint (Page No.33 of the judgment in R.F.A.No.1179/2004, the point that, had arisen for consideration of the Appeal is "Whether the plaintiffs have proved their title the suit schedule property".
This Hon'ble Court has answered the said issue holding that, the plaintiff have filed to prove issue No.1(page No.31 of the judgment) the Hon'ble High Court at Paragraph 14 of the judgment has clearly held that, "The Trial Court was justified in dismissing the suit on the ground that, the plaintiffs have not established their title to the suit schedule property as shown in the plaint".
It is very clear that, from the judgment of the Hon'ble Courtas well as the judgment of the Hon'ble High Court, that the plaintiffs in this suit who are the plaintiffs in the earlier suit have filed to prove their title to the schedule property. Sy.No.81/4B of Hulimavu Village, which is the suit schedule property in this suit is also the suit schedule property in the earlier suit. The defendants 1 to 4 herein are the defendants in the earlier suit. The finding on Issue No.1 in O.S.No.7098/1991, as suit between the same parties in respect of the same property, which is confirmed by the Hon'ble High court of Karnataka in R.F.A.No.1179/2004 operates as Resjudicata, as per the the provisions of Section 11 of the Code of Civil Procedure, as such is 15 O.S. No.3609/2015 not maintainable.
6. The defendants 1 to 4 have filed their written statement in O.S.No.7098/1991 contending that, they are the owners in possession and enjoyment of the land bearing Sy.No.81/4A, 81/4B and 83/4 of Hulimavu Village, which is in a compact block. As admitted by the plaintiffs the defendants have constructed a compound wall covering their properties on 9/10-2-2001, by that time the suit in O.S.No.7098/1991 was pending adjudication. The plaintiffs herein, who were the plaintiffs in the earlier suit, did not claim relief of possession in the earlier suit, since both the suits arise out of common cause of action, the present suit is barred under order 2 Rule 2 of the Code of Civil Procedure and therefore the suit is not maintainable.
7. The averments made in para No.4 to 16 are denied as false in R.F.A.No.1179/2004. The defendants are in possession and enjoyment of land measuring 20 Guntas in Sy.No.81/4A and 32 Guntas in Sy.No.81/4B of Hulimavu Village, since the date of purchase by the first defendant i.e., 05.11.1964 from Thoguru Ramaih. In the sale deed by mistake the survey number is desceibed as Sy.No.81/2. This mistake has crept in the sale deed dated 10.05.1946, wherein the first defendant Smt.Lakshmamma. The same mistake was repeated in another sale deed dated 26.09.1948 executed by Smt. Lakshmamma and 16 O.S. No.3609/2015 the first defendant in favour of Sri. Thoguru Ramaiah as stated above, who in turn again sold the same to the first defendant on 05.11.1964. But in all the sale deeds the boundaries of the lands purchased by the first defendants is mentioned correctly as follows:- East : Cart Track, West : Land of Smt. Venkatamma (mother of the 2nd plaintiff), North : Land of Thoguru Ramaiah, South : Gomal Land.
The defendants are in exclusive possession and enjoyment of the lands described within the aforesaid boundaries. Both the lands are contiguous and both the lands were originally fenced with barded wire by erecting stone pillars which has been now replaced by the Compound wall. The defendants 1 and 2 submit that during the year 1980, when the dispute was arised between the parties, the defendant No.1 approached the Thasildar for Correction of the Revenue entries in R.R.T(P) No.108/1980-81. On the direction of the Thasildar, Bangalore South Taluk, the survey was made and on the other hand he basis of the possession of the land by these defendants the khata was made out in the name of the 1 st defendant for 20 guntas in Sy.No.81/4A, 32 guntas in Sy.No.81/4B and 01 Acres 18 guntas in Sy.No.83/4, which are situated within the boundaries as mentioned in the registered sale deed dated 05.11.1964, under which the 1st defendant purchased the properties from Thoguru Ramaiah. Accordingly the revenue records such as 17 O.S. No.3609/2015 R.T.C was written in the name of the 1 st defendant, the defendants 1 and 2 are are in lawful, exclusive possession and enjoyment to an extent of 20 guntas in Sy.No.81/4A, 32, guntas in Sy.No.81/4B and 01 Acres 18 guntas in Sy.No.83/4 of Hulimavu Village and these lands are covered by the boundaries described in the aforesaid three sale deeds right from the date of sale till today.
8. It is further contended that, Smt. Venkatamma the mother of the 2nd plaintiff, Smt. Lakshmamma the mother of the 1 st defendant who had purchased the lands at the earliest point of time were not aware of assignment/phoding of Sub-number in Sy.Nos.81 and 83 of Hulimavu Village, by the Survey Authorities. Therefore the correct sub-survey numbers of Sy.No.81 and 83 were not recited in the sale deeds of Smt. Venkatamma and Smt. Lakshmamma. But Smt. Venkatamma, thereafter plaintiffs, Smt. Lakshmamma, thereafter the defendants continued to enjoy their respective properties as per the description and boundaries mentioned in the said sale deeds. When the parties are not aware of the assignment of sub survey numbers for Sy.Nos. 81 and 83, the question whether the properties purchased by the plaintiffs or the defendants comes within Sy.Nos. 81,82 and 83, had not arisen at all. In the sale deed dated 26.09.1948 executed by Smt. Venkatamma in favour of Thoguru Ramaiah, eastern boundary of Sy.No.81 is mentioned 18 O.S. No.3609/2015 as Smt. Lakshmamma's land. Whereas in the sale deed dated 26.07.1948 executed by Thoguru Ramaiah in favour of Lakshmamma, western boundary of the land maintained there is mentioned as Smt.Venkatamma's land. It is clear from the said boundaries that Smt.Lakshmamma's land i.e., defendants land is situated on the eastern side of the property belonging to Smt. Venkatamma i.e., the plaintiff's property. The plaintiff's herein have filed a suit in O.S.No.2335/1994 against the defendant No.1, Venkatesh and Govindappa for declaration of their title to the land bearing Sy.No.81/4C of Hulimavu Village, on the basis of the registered sale deed dated 01.05.1943, 26.09.1948 and 23.07.1957. The Very plaintiff herein have also filed another suit in O.S.No.4670/1995 for declaration of their title for an extent of 0-25 Guntas in Sy.No.83/3 of Hulimavu Village on the basis of the above said registered sale deeds contending that they have alienated only 0-15 guntas of land in Sy.No.81/4C and retained 0-25 guntas of land. Sri.Venkatesh and Govindappa who had purchased the land under the registered slae deed dated 13.02.1965 from Smt.Lakshmamma also filed original suit in O.S.No.6385/1997 against the plaintiffs herein seeking a direction to the plaintiffs herein and others to execute a registered rectification deed, rectifying the Sy.No.83/3 as 81/4C thereby rectifying the registered sale deeds dated 01.05.1943, 26.07.1948 and 13.02.1965, all the above said three suit were clubbed and common judgment was passed on 17.08.2012, 19 O.S. No.3609/2015 dismissing O.S.No.6385/1997. In the said judgment this Hon'ble Court has clearly given a finding on Issue No.1 in O.S.No.2335/1994 and the 2nd item of the property purchased under the sale deed dated 01.05.1943 is Sy.No.81/4C and not Sy.No.83/3. Further it is held by this Hon'ble court in OS No.4670/1995 that the plaintiffs herein are the owners Sy.No.83/3 measuring 01 Acre, the property mentioned as item No.1 i.e., Sy.No.81 in the registered sale deed dated 01.05.1943. The above said judgment, it reveals that item No.1 is Sy.No.83/3 and item No.2 of the said sale deed is Sy.No.81/4C and not Sy.No.83/3 as stated in the said sale deeds.
9. It is further contended that, in view of the pendency of the suit, the defendants could not make use of the properties for their beneficial enjoyment though the properties are situated within the jurisdiction of the BBMP. Therefore the defendants applied and obtained conversion of the lands measuring 20 guntas in Sy.No.81/4A, 32 guntas in Sy.No.81/4B and 01 Acres 18 guntas in Sy.No.83/4, which are situated in a compact block, which is enclosed by a compound wall, for non agricultural proposes as per the Official Memorandum of the Deputy Commissioner vide ALN (DB) SR168/2008-09, dated 25.07.2009, preceding payment of Rs.4,79,325-00 to the Revenue Authorities. The BBMP, pursuant to the conversion assessed the above said properties to taxes by assigning the said properties as Municipal 20 O.S. No.3609/2015 No.1227/81/4A-83/4-81/4B of Hulimavu Village and collected taxes from the year 2002 itself. Thus the defendants though partitioned the properties amongst themselves, have entered into a registered Development Agreement dated 26.09.2012, with M/s MAA REAL VENTURES PVT LTD., a company havint its registered office at 1/156, Chandra Rashmi Building, Bhansushali Lane and R.B.Mehta Marg Corner, Ghatkopar East Mumbai- 400077, represented by its director Sri. Narshi Kanji Nakarani. The said Developer has already invested huge amounts in paying the amounts to the defendants as well as to obtain required permissions, sanctions and licenses from the concerned Authorities to put up a building. The JDA is a registered one and it is a public notice. The plaintiffs who are will aware of these developments have not made the said Developer as a party to this suit, therefore the suit is bad for non-joinder of necessary parties.
10. It is further contended that, during the pendency of the appeal and operation of the interim order, the defendant No.1 illegally got the schedule property converted for non agricultural purposes is a frivolous and untenable allegation. The interim order granted by the Hon'ble High Court in M.F.A.No.1782/1994, directing the defendants not to put up construction over the disputed property or not to alienate the disputed property came to be culminated in the final judgment and decree passed in 21 O.S. No.3609/2015 O.S.No.7098/1991. However the same interim order was continued by the Hon'ble High Court in R.F.A.1179/2004. There is no violation of the any interim order as alleged by the plaintiffs, as the defendants have not alienated nor have put up any construction over the suit property during the pendency of the Appeal in R.F.A.No.1179/2004. That the Cause of Action for the suit arose on 15.11.2010, when the R.F.A.No.1179/2004 has been disposed off confirming the right of ownership of the plaintiffs in respect of the suit schedule property and on 14.10.2014 when the application for correction of the boundaries and extent, made by the plaintiffs in R.F.A.No.1179/2004 has been rejected and subsequently when the defendants refused to had over possession of the schedule property to the plaintiffs during the last week of February 2015 when the defendants attempted to illegally alienated the suit schedule property to third persons and subsequently within the jurisdiction of this Hon'ble Court at Bengaluru are all denied as false and untenable. Hence this suit of the plaintiff deserves to be dismissed.
11. In support of the case of plaintiffs, the power of attorney holder of the plaintiff has got examined himself as P.W.1 got documents marked at Ex.P.1 to Ex.P.61. On the other hand, the 2nd defendant examined himself as D.W.1 got documents marked at Ex.D.1 to Ex.D.14.
22O.S. No.3609/2015
12. Heard the arguments.
13. On the above pleading of the parties, my predecessor in office has framed the following Issues and additional issues :
1. Whether the plaintiffs prove that, the identity and description of the suit property is in accordance with finding given in RFA No.1179/2004?
2. Whether the plaintiffs prove that, they are lawful owners of the suit schedule property?
3. Whether the defendant proves that vide sale deed dated 05.11.1964, they purchased the land measuring 20 guntas in Sy.No.81/4A and 32 guntas in Sy.No.81/4B from Thogur Ramaiah?
4. Whether the plaintiffs prove that during the pendency of MFA No.1782/1994, the defendant dispossessed them from suit schedule property by encroaching it and putting up compound wall?
5. Whether the defendants prove that, the suit is hit by the principles of res-judicata?
6. Whether the plaintiffs prove that, the suit is barred U/o 2 Rule 2 of CPC?
7. Whether the defendants proves that, the suit is 23 O.S. No.3609/2015 bad for non-joinder of necessary parties?
8. Whether the plaintiffs prove that, the defendants trying to alienate the suit schedule property?
9. Whether the plaintiffs are entitled for the reliefs as claimed in the suit?
10. What order or decree?
ADDITIONAL ISSUES
1. Whether the suit is barred by law of limitation?
2. Whether the defendants No.1 and 2 prove that, the suit is not property valued and court fee paid is insufficient?
14. After hearing arguments and considering the oral and documentary evidence on record, my findings on the above issues and additional issues are here 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 Affirmative
Issue No.6 : In the Affirmative
Issue No.7 : In the Affirmative
Issue No.8 : In the Negative
24
O.S. No.3609/2015
Issue No.9 : In the Negative
Issue No.10 : As per final order
for the following:
Addl. Issue No.1 : In the Affirmative
Addl. Issue No.2 : In the Affirmative
REASONS
15. ISSUE NOS.1 To 9 AND ADDITIONAL ISSUE NO.1 AND 2 :
These issues are taken together for discussion, since they are interconnected with each other and so also they require common discussion.
Issue No.6 is as framed as whether the plaintiff's prove that the suit is barred by 2 rule 2 of CPC. But it should by defendant instead of plaintiff. It is an clerical error and it to be read as defendant in the place of plaintiff.
16. I am of the opinion that, I need not repeat the contention raised by the plaintiff here also, since I have already narrated the inception of this judgment.
17. To substantiate his contention the plaintiff himself examined as P.W.1 and filed affidavit in lieu of chief examination Under Order 18 Rule 4 of C.P.C.
18. This suit is filed by the plaintiffs for seeking possession and other consequential reliefs against the defendants.
25O.S. No.3609/2015
19. Based on the pleadings of both the parties this Court framed 10 issues and 2 additional issues. This Court opines it is pertinent to go for 1st additional issue which was framed on limitation. The defendants No.2 to 7 contended that, this suit is barred by limitation.
20. The counsel for defendants No.2 to 7 vehemently argued that, the suit of the plaintiff is based on prior possession i.e., the plaintiff alleged that on 9 th and 10th February 2001 the defendants have illegally put of possession and present suit is based on earlier possession and Article 64 of Limitation Act is applicable to the facts of the case.
While perusing para No.13 of the plaint it reads as follows :
"Subsequent to disposal of the MFA, without notice to the plaintiffs in the said MFA No.1782/1994 during October 2000 by making an application I.A.No.3 before the Hon'ble High Court of Karnataka seeking permission to put up brick compound wall as mentioned in the IA and the accompanying affidavit stating that there are three buildings in their land let out to tenants in Sy.No.83/4 and there was barbed wire fencing. Further, they stated that for security 26 O.S. No.3609/2015 reasons they intend to replace barbed wire fencing with brick compound wall.
Thereafter, the defendants managed to obtain an order on 05.01.2001 by misleading the Court and without serving notice to the plaintiffs. Based on that order in MFA No.1782/1994 on9th and 10th February 2001 the defendants have illegally put up pakka compound wall covering the entire land in Sy.No.81/4B, which is morefully described in the schedule given hereunder and hereinafter referred to as the suit schedule property, instead of replacing barbed wire fencing then existing in the land bearing Sy.No.83/4 around three sheds by using bricks."
While perusing the same as per plaint averments of the plaintiff that on 9th and 10th February 2001 the defendants have illegally put up pakka compound wall covering the entire land in Sy.No.81/4B which is the plaint schedule property. By this it is crystal clear that the plaintiffs were dispossessed by the defendants on 9th and 10th February 2001. Now it is better to glance at Article 64 of the Limitation Act.
27O.S. No.3609/2015
64. For possession of immovable Twelve years The date of property based on previous dispossession. possession and not on title, when the plaintiff while in possession of the property has been dispossessed As per above Article 64 of Limitation Act the limitation period is 12 years from the date of dispossession. As per the averments in the plaint the date of dispossession is 9 th - 10th February 2001. So, as per the above provision the plaintiff could have filed suit on or before 10 th or 11th February 2013. While perusing the order sheet, the plaint instituted on 20.04.2015. It means after the lapse of 14 years this suit is filed. It means 2 years delay in filing about suit is not filed within the limitation. Hence, the suit is barred by limitation.
The plaintiff counsel submitted that, he has stated in para No.10 of the plaint as follows :
"10. The defendant-1 is falsely claiming the schedule property based on the sale deed dated 05.11.1964. In fact, the subject matter of land in the sale deed dated 05.11.1964 was alienated under the sale deed dated 05.10.1979. Whatever right accrues to the defendant No.1 under the said sale deed dated 05.11.1964, the same was lost under the sale deed dated 05.10.1979. having lost their 28 O.S. No.3609/2015 land, now the defendant No.1 and his sons are falsely claiming the land belonging to the plaintiffs."
21. The plaintiff counsel further stated that, whatever right accrues to the defendant No.1 under the sale deed dated 05.11.1964 arising out of O.S.No.7098/1991 construction of a brick wall is stated and the defendant in that regard contemplates on the basis of the issues that the suit is barred by limitation, such a statement is and cannot be considered at all. The plaintiff says that subject matter of land in sale deed dated 05.11.1964 was alienated under the sale deed dated 05.10.1979 and whatever right accrues to the defendant No.1 under the sale deed dated 05.11.1964 the same was lost under the sale dated 05.10.1979. The sale deed dated 05.11.1964 is marked as Ex.P.57 and sale deed dated 05.10.1979 is marked as Ex.P.58 in this suit.
22. The defendant counsel vehemently argued that, 1st defendant died pending of the suit and defendant No.8 also died and defendants No.2 to 7 are only legal heirs of defendants No.1 and 8.
He further argued that,it is a third round litigation in which boundaries are important. He further stated that, in the year 29 O.S. No.3609/2015 1982 the plaintiff filed O.S.No.495/1982 for relief of declaration and injunction for property of Sy.No.81/4A and 81/4B on the ground of possession. It was in the Court for 6 ½ years. They withdrawn the suit to file fresh suit and it mentioned in the case file of the same which is marked as Ex.P.50.
While perusing Ex.P.50 it is filed by Smt.Yaramma (present plaintiff) as against Thimmappa, Seenappa, Chandrappa and Mani (present defendant) which was withdrawn granting liberty to file fresh suit on the same cause of action but on the payment of cost of Rs.100/- to the defendant and it was withdrawn on 22.06.1988. While perusing the 2nd page of Ex.P.50 in 2nd para it is stated that the suit is filed by the present plaintiff for declaration of title and for permanent injunction in which defendants filed their written statement denying the title and possession of the present plaintiff over property and while perusing page No.5 and para No.4 of Ex.P.50 the suit was withdrawn as it is a suit for declaration against the defendant is not sufficient to clear the cloud on the title to the property and hence it is necessary that the Revenue Officers and also the survey department are to be made parties for the better adjudication and the schedule as described does not tally with the title deeds with the disputed Hissa Phodi and the suit suffers from the formal defects which cannot be curved by way of amendments.
30O.S. No.3609/2015
23. The defendant counsel submitted that, the O.S.No.495/1982 was withdrawn to cure the defects and to file fresh suit on 22.06.1988 and the present plaintiff filed another suit as per O.S.No.7098/1991 and the plaint of that suit is marked as Ex.P.31, orders on I.A. in that suit is marked as Ex.P.32 and judgment is marked as Ex.P.36 and further submitted that, when suit was withdrawn then they could have immediately with issuing notice and but they have filed the suit after 3 ½ years.
While perusing Ex.P.36 it is the judgment rendered in O.S.No.7098/1991 which was instituted on 25.11.1991 by Smt.Yeramma (present plaintiff) and Narayana Reddy as against Thimmappa, Seenappa, Chandrappa and Prakash @ Mani (present defendant) for declaration that the plaintiffs are the owner of the schedule property bearing old No.81, New No.81/4A, 81/4B and 81/4c measuring 11 3 acres 20 guntas of Hulimavu village, Begur Hobli, Bangalore South Taluk bounded on East by Government Govi bande, West by land of Abbaiah, North by Sy.No.83 and Lakshmamma's land and South by Gomala. The pleading of the case of the plaintiff in that O.S.No.7098/1991 is that the property belongs to Thogur Ramaiah who sold the property to Venkatamma who is the mother in law of the 1st plaintiff (herein present suit and 1st plaintiff) in the year 1943. later Venkatamma resold the suit 31 O.S. No.3609/2015 property to Thogur Ramaiah who in turn sold the suit property to H.Muniyappa Reddy in the year 1952 from H.Muniyappa Reddy plaintiff purchased in the year 1957 in the name of her minor son Muthappa in the year 1957 and he died and the plaintiff being the Class-I heirs inherited the property, since they are in possession and enjoyment and Sy.No.81 was demarcated and renumbered as Sy.No.81/4A measuring 1 acre 13 guntas, Sy.No.81/4B measuring 1 acre 15 guntas and Sy.No.81/4C measuring 13 guntas and all there are adjacent to each other. In O.S.No.7098/1991 - Ex.P.36 page No.7 para No.3 of the judgment it has written as follows :
"3. The defendants appeared and filed their written statement contending that, the plaintiffs had withdrawn O.S.No.495/1982 with permission to file the suit on the same cause of action. The present suit is not based on the same cause of action. Therefore, the present suit is barred under Order 2 Rule 2 C.P.C. and withdrawal of earlier suits operates as resjudicata under section 11 and under Order 23 Rule 1 of C.P.C. The allegations of the plaintiffs is that they purchased 3 acres 0 guntas of land under registered sale deed dated 23.07.1957 in Sy.No.81 is false and the allegations that they received possession of 3 32 O.S. No.3609/2015 acres 20 guntas is also false. Further the plaintiffs are in peaceful possession and enjoyment of 3 acres 20 guntas as heirs of Muthappa is also false. The allegations of the plaintiff that Thogur Ramaiah sold the property to Venkatamma - mother-in-law of the 1st plaintiff in the year 1943 and that Venkatamma sold the same to Thogur Ramaiah, later Thogur Ramaiah sold the same to H.Muniyappa Reddy in the year 1952 are all false. The plaintiffs were never in possession of the schedule property in the year 1982.
The temporary injunction claimed in O.S.No.495/82 after enquiry was refused which operates as resjudicata and esablishes that the plaintiffs are not in possession of the schedule property. The payment of kandayam is false. The RTC also shows the possession of the plaintiffs is false. On the other hand, the RTC produced by the plaintiffs shows that the defendants are in possession and enjoyment of the lands bearing Sy.No.81/4A and 81/4B of Hulimavu village. The boundaries mentioned in the plaint and the allegation of demarcation of 33 O.S. No.3609/2015 Sy.No.81 is false."
The defendant counsel submitted that, they withdrawn suit in O.S.No.495/1982 by saying that, the suit has some defects and they have to make survey department and revenue officers as defendants, but they did not do. In this suit Ex.P.36 the issues framed in this suit are stated in page NO.13 of para No.6 in Ex.P.36 are as follows :
"1. Whether the plaintiffs prove that they are the owners of the property described in the plaint?
2. Whether the plaintiffs have proved that the defendants are trying to lay hands on the plaint schedule property?
3. Whether the plaintiffs are entitled for declaration of title in regard to the plaint schedule property?
4. What decree or order?"
The three issues were answered as Negative. I rely upon first issue. The learned Hon'ble Judge while writing the judgment observed as follows :
In page NO.18 para No.11 of O.S.No.7098/1991 reads as follows :34
O.S. No.3609/2015 "11. The plaintiffs are claiming that they are the owners of 3 acres 20 guntas in Sy.No.81/4A, 81/4B and 81/4C. The boundary mentioned to the said property in the plaint is :
"ಪರರಕಕ ಗಗವಬಡ, ಪಶಶ ಮಕಕ ಅಬಬ ಯಯ ನ ಜಮಗನ, ಉತತ ರಕಕ ಸರರ ನ.83 ಮತತ ಲಕಕ ಮಕ ನ ಜಮಗನ ಮತತ ದಕಕ ಣಕಕ ಗಗಮಳ."
The plaintiffs have to establish that the above extent of land measuring 3 acres 20 guntas is purchased by the plaintiffs and their property purchased under Ex.P.8 exists within the boundary mentioned in plaint schedule boundary. The documents produced by the plaintiffs which are marked as Ex.P.5 to Ex.P.8 will have to be perused and considered meticulously. In Ex.P.5 Thogur Ramaiah specifically mentioned that the suit property is sold to Venkatamma who is the grand mother of the plaintiffs. Item No.1 of the sale deed Ex.P.5 shows how much area is sold to Venkatamma i.e., 35 O.S. No.3609/2015 "ದಕಕ ಣಕಕ ಕಕತ ಳ ವಲಯಯದ ಪಪ ರಭಸ ಉತತ ರ , ದಕಕ ಣ 523 ಅಡ , ಪರರ ಪಶಶ ಮ 142 ಅಡಗಳಳಳ ಮಧಯ ಇರರ ಸರರ ನ.81 ರ ಪಕ ಸಮರ 2 ½ ಎಕರ ಉಳಳ ಜಮಗನ."
When the property is sold with specific measurement, the party cannot claim excess to the said measurement of land. The vendor under Ex.D.5 mentioned approximate measurement as 2 ½ acres. But the vendor has given specific measurement sold under the sale deed Ex.P.5. The boundaries that are mentioned in the sale deed will not change the exact measurement. That boundary will not change the actual and specific measurement mentioned in the registered document. In Ex.P.5 the property described in item No.1 is the present disputed property which is sold with the specific measurement by the vendor Thogu Ramaiah to Venkatamma mentioning starting from the boundary of 'Kathale Beli' North to South 523 feet and East to West 162 feet which total extent comes to 84,726 sq. feet. One gunta measures 1089 sq. feet. 2 acres measures 36 O.S. No.3609/2015 8,17,120 sq. feet. So, the land sold under Ex.P.5 measuring North to South 523 feet and East to West 162 feet is less than 2 acres. On perusal of extent and boundary mentioned in Ex.P.5 reveals that Thogur Ramaiah retained some portion in Sy.No.91 towards the eastern side and sold only 84,726 sq. feet which is less than the extent of 2 acres to Venkatamma wife of Muniswamappa. But below mentioned that 2 ½ acres approximately which given an assumption that when Thogur Ramaiah gave measurement of property sold to Venkatamma, the bond writer could not have calculated or converted the said measurement actually how much gunta or acre will come. So, he might have mentioned approximately as 2 1/s acres. So, Venkatamma cannot sell more than the extent mentioned in Ex.P.5 to Thogur Ramaiah as mentioned in Ex.P.5 by Thogur Ramaiah himself. As mentioned in Ex.P.5 by Thogur Ramaiah approximately 2½ acres, Venkatamma also used the same words as 2 ½ acres in her sale deed dated 26.09.1948 executed in favour of Thogur Ramaiah under 37 O.S. No.3609/2015 which item No.1 described as item No.1.
Thereafter, when Thogur Ramaiah sold it to Muniyappa Reddy on 03.11.1952 they must have understood the actual extent or area sold under Ex.P.5 and Ex.P.6 is about 2 acres and not 2 ½ of land. Accordingly in Ex.P.7 Thogur Ramaiah when he sold it for the second time to H.Muniyappa Reddy on 03.11.1952 under Ex.P.7, wherein he mentioned the portion sold to H.Muniyappa Reddy is approximately 2 acres. Even in Ex.P.5 and Ex.P.6 it is mentioned as approximately as 2 ½ acres, Thogur Ramaiah given up that 2 ½ acres and in that place mentioned approximately 2 acres. The said mentioning of 2 acres in Ex.P.7 the extent is slightly excess but is comes near the measurement of 523 feet x 162 feet i.e., 84,726 sq. feet. The area shown under Ex.P.5 to Ex.P.7 is less than 2 acres. Accordingly in Ex.P.7 Thogur Ramaiah has said approximately 2 acres. Thereafter, H.Muniyappa Reddy also mentioned in Ex.P.8 in the sale deed dated 18.07.1987 executed in favour of plaintiff's minor son Muthappa. The extent therein is approximately 2 acres.
38O.S. No.3609/2015 The extent mentioned in Ex.P.7 and P8 are in accordance with the measurement shown in Ex.P.5. In the sale deeds Ex.P.6 to P8 the eastern boundary of the property mentioned as Lakshmamma's land. The plaintiffs in their plaint mentioned that the eastern boundary of the property purchased by them under Ex.P.8 as 'Govi Bande'. Ex.P.5 to P8 sale deeds clearly shows that the land sold to the plaintiffs in Sy.No.81 do not extend to 'Govi Bande' as mentioned in the plaint. Further the said documents make it clear that towards the eastern side of property sold to the plaintiffs in Sy.No.81, the property of Lakshmamma situates. Perusal of Ex.P.5 to P8 together the extent and the boundaries mentioned in those sale deeds and on comparison of the extent and the boundaries claimed in the plaint by the plaintiffs establishes that the extent claimed by the plaintiff is excess than the property sold to the plaintiffs and the boundary mentioned in the plaint by the plaintiffs to their property is not in accordance with the boundaries mentioned in the sale deeds Ex.P.5 to Ex.P.8.
39O.S. No.3609/2015 so the extent and the boundaries mentioned by the plaintiff in the plaint is not correct. Further it becomes clear that the plaintiffs are claiming excess land than what they have purchased under Ex.P.8 and than what is mentioned in Ex.P.5 to Ex.P.7.
The defendants produced the certified copies of the documents of title and their parental documents. Ex.P.6 is the sale deed dated 10.04.1946 executed by Thogur Ramaiah in favour of Lakshmamma. The property sold under the said document described as :
"ಸರರ ನ.81/2, ಪರರಕಕ ಬಡದರ,
ಪಶಶ ಮಕಕ ರಯಕಟಮಕ ನ ಜಮಗನ, ಉತತ ರಕಕ ನನನ
ಜಮಗನ, ದಕಕ ಣಕಕ ಬಲಯಯದ ಪಪ ರಭವಗ
ಪಪ ರಭದ ಭಗದಯದ ಉತತ ರಕಕ 485 ಅಡಗಳಳಳ
ಕಕ ಒಯದ 2) ಇದ ಹವವವಗ ಸರದ ಕರಗ
ಜಮಗನ ಸಮರ 10 ಗಯಟಗ ಚಕಕ ಬದ
ಪರರಕಕ ಮನಯಪಪ ನ ಜಮಗನ, ಪಶಶ ಮಕಕ
ರಜಕಲರ ಉತತ ರಕಕ ಮನಯಪಪ ನ ಜಮಗನ
ಮತತ ದಕಕ ಣಕಕ ನನನ ಜಮಗನ."
Subsequently on 26.09.1948
Lakshmamma resold the above property to 40 O.S. No.3609/2015 Thogur Ramaiah under registered sale deed. The same is marked as Ex.D.7 wherein the description in Ex.D.6 except the western boundary. The western boundary mentioned to item No.1 in Ex.D.7 is :
"ರಯಕಟಮಕ ನಯದ ನಗವ ಕಯಡ ಜಮಗನ"
because on the same day i.e., on 26.09.1948 Thogur Ramaiah had purchased the land out of Sy.No.81 from Venkatamma under Ex.P.6. Accordingly, the writing in Ex.D.7, the western boundary is mentioned as:
"ರಯಕಟಮಕ ನಯದ ನಗವ ಕಯಡ ಜಮಗನ"
It means the western property was purchased by Thogur Ramaiah under Ex.P.6 on 26.09.1948 from Venkatamma. This document makes it clear, that the land purchased by the plaintiffs or their grand mother in Sy.No.81 lies towards the West of the defendants land in Sy.No.81. Subsequently, on 05.11.1964 Thogur Ramaiah what he had purchased under Ex.D.7 from Lakshmamma, sold it to Thimmappa - defendant No.1. The said sale 41 O.S. No.3609/2015 deed is marked as Ex.D.11 wherein also the western boundary is changed and mentioned as Venkatamma's land who is the grand mother of the plaintiffs. Because the plaintiffs purchased the land out of Sy.No.81 on 18.07.1987 from H.Muniyappa Reddy instead of mentioning the name of the children of Venkatamma, the sale deed mentioned the western boundary in Ex.D.11 as the land of Venkatamma. On perusal and comparison of the documents of title produced by the plaintiffs and the defendants goes to show that the plaintiffs land purchased in Sy.No.81 exactly situates to the western side of defendants land purchased under the sale deed Ex.D.11 dated 05.11.1964. These documents further makes it clear that the defendants purchased nder ex.D.11 some portion in Sy.No.81/4 and not in Sy.No.81/2 because the boundaries mentioned in Ex.P.5 to P8 do not show that the property purchased by the plaintiffs is upto 'Govi Bande'. But the title deeds shows towards eastern side of the property purchased by the plaintiffs is the property of the defendants.
42O.S. No.3609/2015
12. The main arguments of the learned counsel for the plaintiffs is that the defendants never purchased any portion in Sy.No.81/4, but what they had purchased is Sy.No.81/2. The defendants produced the Village Survey map and City Survey maps of Sy.No.81 and marked them as Ex.D.25 to Ex.D.27. On perusal of these maps, it shows to the west of Sy.No.81/2 there is Bannerghatta road. Admittedly, Venkatamma has not purchased any property towards the western side of Bannerghatta road. So, the wester boundary of Ex.D.6, D7 and D11 do not tally with the existing situation to Sy.No.81/2. Further towards south of Sy.No.81/2 no 'Kathale Beli' is existing. But towards the southern side of Sy.No.81/3 situates. So, the southern boundary also do not tally to the existing facts and the boundary of Sy.No.81/2. Further towards the east of Sy.No.81/2 no cart track is existing. So, none of the boundaries mentioned in Ex.D.6, D7 and D11 tally with the existing facts and conditions and the boundary of Sy.No.81/2. But the boundary mentioned to the land at item No.1 43 O.S. No.3609/2015 sold in Ex.D.6, D7 and D11 tally with the boundaries to the land of Sy.No.81/4. The village survey map Ex.D.25 and the land survey number map Ex.D.26 and D27 shows the cart road was existing in the middle of Sy.No.81/4B. The eastern boundary mentioned in Ex.D.6, D7 and D11 shows towards eastern side of the property sold to the defendants, the boundary is cart tract. Except that, the cart track is shown in Ex.D.25 to D27. The counsel for the plaintiff argued there will be cart track in every land for the agricultural purpose. The seasonal using of the cart tract by the land owners cannot be mentioned as boundary in the sale deeds.
The permanent cart track used by all the villagers for their agricultural purpose or for any other purpose will only be taken into consideration for mentioning the boundary to the land in the title deeds. So, the argument of the learned counsel for the plaintiffs to that effect cannot be accepted. On going through the boundary mentioned in Ex.D.6, D7 and D11 and on comparison with the actual existing facts and boundary to the 44 O.S. No.3609/2015 respective lands clearly shows that the property purchased by the defendant comes within the boundary existing to the Sy.No.81/4 and not within the existing boundary to the Sy.No.81/2. All these facts clearly goes to shown that the Sy.No. mentioned in Ex.D.6, D7 and D8 as 81/2 is written by mistake instead of writing it as Sy.No.81/4. Even all the 4 sides boundary mentioned in Ex.D.6, D7 and D11 is taken into consideration, it will only fix the land sold under those documents is the portion under Sy.No.81/4 and not the portion in Sy.No.81/2."
In page NO.29 para No.13 reads as follows :
"On perusal of the entire evidence on record, it clearly establishes that the plaintiffs have not purchased 3 acres 20 guntas described in the schedule under the sale deed. On the other hand, the land purchased by the plaintiffs under Ex.P.5 to Ex.P.8 is less than 2 acres. But before Court the plaintiffs are claiming title to the excess property purchased by them. The plaintiffs in this case failed to prove that they have 45 O.S. No.3609/2015 actually purchased 3 acres 20 guntas under
Ex.P.5 to Ex.P.8 and they are the owners of entire 3 acres 20 guntas described in the plaint schedule property."
In page NO.31 para No.13 reads as follows :
"But in the present case, on perusal of the title deeds produced by the plaintiffs and the defendants do not appear any misdescription neither in the extent nor in the boundaries. The vendors under Ex.P.5 have specifically sold the land mentioning the measurement in feet both side East to West and North to South, then the question of misdescription of boundary will not arise. So, the above rulings relied upon by the learned counsel for the plaintiffs are not applicable to the present facts of the case. Hence, for the above reasons, held the plaintiff failed to prove issue No.1. Accordingly, I answer issue No.1 in the Negative."
By observing as above, the Hon'ble Court dismissed the suit of the plaintiff (even present plaintiff of this case) in O.S.No.7098/1991. The plaintiff produced Ex.P.37 decree, 46 O.S. No.3609/2015 Ex.P.38 plaint, Ex.P.38(a) sketch, Ex.P.39 order sheet of O.S.No.4851/1995.
The plaintiff challenged the same before the Hon'ble High Court of Karnataka as per RFA No.1179/2004 as per Ex.P.40 and Ex.P.41. The Hon'ble High Court of Karnataka pronounced the judgment on 15.11.2010. The Hon'ble High Court of Karnataka observed as follows :
"In the light of the rival contentions, the point that arises for consideration in this appeal is:
Whether the plaintiffs have proved their title to the suit schedule property?"
While perusing observation made the Hon'ble High Court of Karnataka in page No.12 specifically stated that defendant not disputed Ex.P.18 sale deed dated 18.07.1957 but they disputed eastern boundary and plaintiffs have not produced any documents to show that, how their eastern boundary got changed from Lakshmamma's land to Government Gavibande and plaintiffs have not established their title over the property as shown in the plaint filed in O.S.No.7098/1991. It is clear that, the eastern side of plaintiffs property it should be Lakshmamma's property and not Government Gavibande. In further the Hon'ble High Court of Karnataka observed that, as per the submissions and not objection of defendant in terms of 47 O.S. No.3609/2015 Ex.P.9 the sale deed dated 18.07.1957 and not beyond Lakshmamma's land and it was ordered for the same and it is pertinent to note that, Hon'ble High Court of Karnataka also ordered that, the defendants title as shown in Ex.D.11 in O.S.No.7098/1991 that is sale deed dated 05.11.1964 stands undisturbed. Thus, it is clear that, the title derived by the defendant under sale deed dated 05.11.1964 was reached its finality. It was not challenged by the plaintiff (present plaintiff) and decree in RFA No.1176/2004 was passed as Ex.P.41. It is pertinent to note that, Ex.P.40 and Ex.P.42 are one and the same i.e., judgment passed by Hon'ble High Court of Karnataka in RFA No.1179/2004 on 15.11.2010, but on 11.06.2012. The boundaries were corrected the Hon'ble High Court of Karnataka and fresh decree was passed on RFA No.1179/2004 as per Ex.P.43 and Ex.P.44 is the order sheet of RFA No.1179/2004 and Ex.P.45 is the orders on I.A.No.1/2004.
Thus, the Hon'ble High Court of Karnataka in RFA No.1179/2004 ordered that, defendants sale deed dated 05.11.1964 in this case which is marked as Ex.P.57 is ordered as undisturbed. It means the Hon'ble Court has observed the possession and enjoyment of the property is with the defendant under the sale deed Ex.P.57 dated 05.11.1964 ordered not to disturb too. Till today it was not challenged by the present plaintiff.
48O.S. No.3609/2015 Now it is pertinent to note that, the plaintiff even though pleaded in the present plaint saying that on 9 th / 10th February 2001 the defendant dispossessed by the plaintiff as per para No.13 of the plaint. But neither in O.S.No.7098/1991 nor in RFA No.1179/2004 brought to the notice of the Hon'ble Court. It is pertinent to note that, on 9 th / 10th February 2001 O.S.No.7098/1991 was pending as it was dispossessed on 01.09.2004. If there could have been any dispossession then the plaintiff could have amended the plaint for seeking the possession. Atleast the plaintiffs have brought to the notice of Hon'ble High Court of Karnataka about the dispossession but they agreed Ex.P.8 sale deed dated 18.07.1957 eastern side not beyond Lakshmamma's land and got the order Hon'ble High Court of Karnataka in RFA No.1179/2004.
Now it is crystal clear that, the plaintiff is stand to para No.13 of plaint as the defendant dispossessed them on 9 th / 10th February 2001. The plaintiff counsel relied upon a citation rendered in 2007 AIR SCW 6892 Annakili - Vs - A.Vedanayagam and others, wherein it has been held that, "(A) Limitation Act (36 of 1963), Art.65 - Adverse possession - Proof - Not only animus possidendi must be shown to exist - But same must be shown to exist at commencement of 49 O.S. No.3609/2015 possession - Claimant must continue in said capacity for period prescribed under Limitation Act - Mere long possession for period of more than 12 years without anything more - Would not ripen into title."
While perusing the ratio laid down by the Hon'ble Apex Court, it is produced for adverse possession. Here also it is stated as limitation is 12 years. Here the defendants are not claiming it as adverse possession. Here the plaintiff is claiming it by saying that, they were disposed by the defendant on 9 th / 10th February 2001. Hence Article 64 applies which also says the time limit to file a suit is 12 years. But the plaintiff filed the suit beyond 12 years. Hence this dictum is not helpful to the plaintiff.
The plaintiff counsel further relied upon the citation rendered by Hon'ble High Court of Karnataka in Seshumull M.Shah - Vs - Sayed Abdul Rashid and others in AIR 1991 Karnataka 273 (1191 ILR Kar 2857) wherein it has been held that, "(A) Limitation Act (36 of 1963), Art. 58, Art.65 - Suit for declaration that plaintiff was owner of property - Plea taken that sale deed executed by defendant in respect of disputed property was void - Relief for possession of 50 O.S. No.3609/2015 suit lands and damages for cutting standing tree on land also claimed - Held, that such suit where possession was claimed as consequence of declaration would be governed by Art.58 and not Art.58 of Act."
While perusing the ratio laid down by Hon'ble High Court of Karnataka in above dictum discussed about Article 65 and Article 58. Here the plaintiff not sought to declare sale deed dated 05.11.1964 (Ex.P.5 to P7) as void as it has already ordered by Hon'ble High Court of Karnataka in RFA No.1179/2004 by saying that sale deed of defendant ordered as undisturbed. Hence, the above citation is also not helpful to the plaintiff.
The plaintiff counsel further relied upon a citation rendered by the Hon'ble Apex Court in Nair Service Society Ltd., - Vs - K.C. Alexander and others reported in 1968 SC page 1165, wherein it has been held that, "(C) Limitation Act (36 of 1963), Art.64, Art.65 - Possessory suit by a person acquiring title by adverse possession - Effect.
A person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world 51 O.S. No.3609/2015 but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his rights is for ever extinguished and the possessory owner acquires an absolute title. 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 Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised."
This citation is also not applicable to the plaintiff as this Court already discussed about the facts as supra.
The plaintiff counsel further relied upon a citation that was rendered in Indira - Vs - Armugam and another reported in AIR 1999 SC 1549 (1998 AIR SCW 4024) wherein it has been held that, "Limitation Act (36 of 1963), Art.65 -
Adverse possession - Suit based on title for possession - Title established on basis of 52 O.S. No.3609/2015 relevant documents - Plaintiffs cannot be non suited unless defendant proves adverse possession for prescriptive period - Provision under under Art. 142 of 1908 Act wherein plaintiff had to prove not only but also possession within 12 years of date of suit - Has undergone metamorphic sea change in view of art.65 of 1963 Act. Decision of Madras High Court, Reversed."
The plaintiff has not proved his title as per RFA No.1179/2004 where sale deed of defendant dated 05.11.1964 Ex.P.57 was ordered as undisturbed. Here the plaintiff has to prove his dispossession and as per her the dispossession was on 9th / 10th February 2001 and for seeking possession, the suit should be filed within 12 years from the dispossession. This dictum is also not applicable to plaintiff.
The plaintiff counsel further relied upon C.Nataraj - v/s. Ashim Bai and another reported in AIR 2008 SC page 363 (AIR SCW 6953) wherein it has been held that, "(A) Civil P.C. (5 of 1908), O.7 R.11(d) -
Limitation Act (36 of 1936), Art.58, Art.65 - Rejection of plaint - Application for -
Maintainability - Suit for declaration of title, 53 O.S. No.3609/2015 possession and consequential injunction based on sale deed - Suit filed on alleged trespass by defendant - defendants disputing boundary description of property in sale deed and suit property. Plea that suit was barred by limitation raised - Dispute regarding boundaries of suit property - Is question of fact to be considered during trial - Limitation would not commence unless there has been clear and unequivocal threat to right claimed by plaintiff - Application for rejection of plaint on ground that suit was barred by limitation in view of Art.58 - Not maintainable.
Cri. (PD) NO.1143 of 2006, D/- 10-10-2006 (Mad), Reversed (2005) 7 SCC 5101, (2004) 1 SCC 271 Relied on.
(B) Limitation Act (36 of 1963), Art. 64, Art.65 - Limitation Act (9 of 1908), Art. 142, Art.144 - Suit for possession - Law of limitation relating to suit for possession has undergone an drastic change - In terms of Arts. 142 and 144 of the Limitation Act, 1908, it was obligatory on part of plaintiff to aver and plead his title over property and 54 O.S. No.3609/2015 possession of same for more than 12 years - In terms of arts. 64 and 65 of Limitation Act, 1963, burden would be on defendant to prove that he has acquired title by adverse possession. 2007 AIR SCW 1120, (2004) 1 SCC 271, Rel. on."
The ratio laid down by the Hon'ble Apex Court in the above dictum is not applicable to case in hand as here the title and the boundaries are already ordered Hon'ble High Court of Karnataka in RFA No.1179/2004 and it was not challenged by the present plaintiff. Hence the above dictum is not helpful to the plaintiff.
The defendant counsel relied upon reported in AIR 2004 SC page 4261 in Ramaiah - Vs - N.Narayana Reddy, wherein it has been held that, "Limitation Act (36 of 1963), arts. 64, 65; S.14 - Suit for possession - Limitation -
Whether governed by Art.64 or Art.65 - Has to be decided by reference to pleadings - Earlier suit for possession by plaintiff based on title -
Appellant as a defendant in that suit admitted that he was in possession of suit property upto 1971 - Admission of appellant 55 O.S. No.3609/2015 indicates his ouster from possession in 1971 - Instant suit filed by appellant for possession on discontinuance of possession - Is governed by Art.64 - Suit filed by appellant in 1984 i.e., 13 years after dispossession - Is time barred - Appellant not entitled to take benefit of S.14 of Act."
The ratio laid down in the above dictum of Hon'ble Apex Court is applicable as they pleaded in para No.13 of plaint for earlier dispossession but they have not pleaded in their suit in O.S.No.7098/1991 which was disposed on 01.09.2004 nor in RFA No.1179/2004 and it was disposed on 15.11.2010. even though these were pending. They are pleading prior dispossession and hence Article 64 is applicable.
As this Court already discussed supra by saying that, as per Article 64 of Limitation Act, the limitation to file suit is 12 years for seeking possession and as per para 13 of the plaint, the plaintiff pleaded that they were dispossessed on 9 th / 10th February 2001 and they filed the present suit on 20.04.2015 but they could have filed on or before 9th / 10th February 2013. There is delay of more than 2 years and as per Article 64 of Limitation Act filed suit is not within limitation.
If the plaintiff proves that during the pendency of MFA 56 O.S. No.3609/2015 No.1782/1994 the defendant dispossessed them from plaint schedule property by encroaching it and putting up compound wall then again Article 64 of Limitation Act, applies and all observations made in supra will apply.
24. The plaintiff further submitted that, this issue No.1 is to be taken consideration by this Hon'ble Court on the basis of the documents. It is not in dispute on the basis of the admissions made by the defendants also that the property of the plaintiffs is identifiable. The plaintiff counsel further that, Ex.P.1 to Ex.P.5 are the documents which endorses the title of the property with its area extent, boundary and measurements. The property can be well understood from Ex.P.7. The plaintiff counsel further submitted that, RTC extracts are produced which are marked as Ex.P.8 to Ex.P.22 and Record of Rights which confers irrebutable presumption of property which was in possession of the plaintiffs. The plaintiff counsel further submitted that, in order to establish Ex.P.28, Ex.P.29 and Ex.P.30 which are sketches and are Government prepared sketches, which cannot be disputed on the ground that, it is also admitted by the defendants that these sketches identify their property and these documents would indicate lawful settled possession. In the circumstances, the first issue can be answered favouring the plaintiffs which are identifiable on the basis of the aforesaid documents. Under these circumstances, the documents establish primafacie title 57 O.S. No.3609/2015 and primafacie possession of the plaintiffs. The plaintiff counsel further submitted that, what required to be considered by this Hon'ble Court is Ex.P.40, the judgment in RFA No.1179/2004. Ex.P.41 is the decree drawn in reference to the schedule property. Ex.P.42 is the order of the Hon'ble High Court of Karnataka wherein corrections of schedule of the property is appropriately effected. Ex.P.43 is the document wherein the title of the plaintiffs is confirmed in reference to Ex.P.8 in the earlier suit. Ex.P8 are the title documents of the plaintiffs which is referred aforesaid in reference to revenue documents. Ex.P.40, P41 and P42 confers lawful title and possession of the plaintiffs that which was dispossessed by the defendants willfully, deliberately and intentionally. Under the circumstances, the judgment of the Hon'ble High Court of Karnataka delivered n 15.11.2010 and corrected thereafter on the Review Petition filed by subsequent order that came to be passed on 11.06.2012 in regard to the very same property for which further decision is given on 15.11.2010 and subsequent application filed directing to draw Decree in pursuance to the schedule in Ex.P.8 on 11.06.2012 and thereafter one more Order that came to be passed, findings of the Court as on 15.11.2010 cumulatively taken consideration.
25. The plaintiffs are required to prove that, the description of the property described in the schedule to the plaint is in 58 O.S. No.3609/2015 accordance with the finding recorded in RFA No.1179/2004. Kindly refer the copy of the judgment passed in RFA No.1179/2004 marked as Ex.P.42. The operative portion of the order in Ex.P.42 is as follows :
ORDER PASSED IN RFA NO.1179/2004 I.A., in Ex.P.42 Appeal is partly allowed. Plaintiffs are declared as owners of the suit schedule property as shown in Ex.P.48 (portion of Sy.No.81, situated at Hulimavu village, Begur Hobli, Bangalore South Taluk) i.e., within the boundaries as; East by Lakshmamma's land, West by Abbaiah's land, North by Muniyamma's land and South by Gomal land.
The defendants title as shown in Ex.D.11 in O.S.No.7098/1991 which is Ex.P.57 in the present suit stands un- disturbed. That is to say the title of the defendants as mentioned in Ex.P.57 is confirmed.
The property described in the schedule to the plaint is as follows:
"Agricultural land bearing Sy.No.81/4B measuring 1 acres 15 guntas, situated at Hulimavu village, Begur Hobli, Bangalore South Taluk, now within the territorial limits of the BBMP Ward No.193, Hulimavu, B.G.Road, Bengaluru and bounded on the East by Sy.No.81/4C, West by Sy.No.81/4A, North by Sy.No.83/4 and South by 80 feet road." So, by 59 O.S. No.3609/2015 comparing the above said schedules in the earlier plaint and in this plaint, the property claimed by the plaintiff in this suit is same as described in the earlier plaint. The plaintiff did not chose to file the suit in respect of Sy.No.81, situated at Hulimavu village, within the specified boundaries for which relief was granted by the Hon'ble High Court of Karnataka, in RFA No.1179/2004 as mentioned in Ex.P.5. The plaintiffs relying on Ex.P.29 a survey sketch which shows the existence if Sy.Nos.81/4A, 8/4B and 81/4C contends that the plaintiffs have proved the identity. It is to be noted that earlier to 1950, the Sy.No.81 was assigned as Sy.No.81/1, 81/2, 81/3 and 81/4 and also subsequently Sy.No.81/4 was assigned as Sy.No.81/4A, 81/4B and 81/4C. Ex.P.5 i.e., the plaintiffs' sale deed dated 18.07.1957 marked in this suit as Ex.P.5 and in the earlier suit as Ex.P.8 is in respect of Sy.No.81 only. In the earlier suit also the same contentions were taken and in this suit were taken same contentions but the said contentions were all answered in negative both by this Hon'ble Court i.e., in O.S.No.7098/1991 and by the Hon'ble High Court in RFA No.1179/2004. There is no iota of evidence or documents to show and prove that the land purchased by the plaintiffs has been assigned as Sy.No.81/4A, 81/4B, 81/4C. The measurement of the land as mentioned in Ex.P.5 is only 1 acre 38 guntas i.e., Sy.No.81/4A and Sy.No.83/3 of Hulimavu village which is admittedly with the possession of the plaintiffs, as admitted by P.W.1 in the cross-examination. It 60 O.S. No.3609/2015 is submitted that, the boundaries of the plaintiffs sale deed at Ex.P.5, the defendants' sale deed at Ex.P.57 and sale deed at Ex.P.58 are compared it is crystal clear that the defendants' property is on the Eastern side of the plaintiffs' and the plaintiffs' property is on the western side of the defendants' property. Ex.P.58 is the sale deed dated 05.10.1979 executed by one Kempanna and others is adjoining the Bengaluru - Bannerughatta main road. The contention of the plaintiffs that the defendants have alienated the property purchased by them as per Ex.P.57 is absolutely false, as it is clear from the sale deed at Ex.P.58. Therefore, the plaintiff has not proved the identify and description of the suit property which is in accordance with the findings given in RFA No.1179/2004.
26. The plaintiffs claim title to the suit schedule property as on the basis of the registered sale deeds dated 01.05.1943 executed by Thoguru Ramaiah in favour of Venkatamma marked as Ex.P.2. as per the said sale deed, Venkatamma purchased land measuring 523 feet x 162 feet, which comes to 1 acre 38 guntas in extent in Sy.No.81 of Hulimavu and 0.15 guntas of land in Sy.No.83 of Hulimavu. Under the sale deed dated 26.09.1948 marked as Ex.P.3, the said Venkatamma sold Sy.No.83 of Hulimavu village to Ramaiah and retained Sy.No.83 measuring 0- 15 guntas. Under the sale deed dated 03.11.1952 marked as Ex.P.4, Ramaiah sold Sy.No.81 showing the measurement as 2 61 O.S. No.3609/2015 acres to Muniyappa Reddy and the said Muniyappa Reddy as per the registered sale deed dated 18.07.1958 sold Sy.No.81 measuring 2 acres of Hulimavu village to Muthappa, a minor represented by his mother i.e., the 1 st plaintiff Yarramma marked as Ex.P.5. The said document was marked as Ex.P.8 in O.S.No.7098/1991. Further the plaintiffs plead that, the Hon'ble High Court of Karnataka as declared the title of Sy.No.81/4B of Hulimavu village in RFA No.1179/2004 which is factually incorrect. The plaintiffs filed O.S.No.7098/1991 on the file of this Hon'ble Court against the defendants No.1 to 4 in this suit seeking relief of declaration and injunction in respect of the properties described in the schedule to the said plaint which are as follows :
"Land bearing Sy.No.81, new sub numbers 81/4A, 81/4B, 81/4C measuring 3 acres 20 guntas, situated at Hulimavu village, Begur Hobli, Bangalore South Taluk, bounded on the East by Government Gavi Bande, West by land of Abbaiah, North by Sy.No.83 and Lakshmaiah land and South by Gomala which is evident from copy of the plaint in O.S.No.7098/1991 marked as Ex.P.3 in this case."
After contest, this Hon'ble Court was pleased to dismiss the suit in its entirety as per the judgment dated 01.09.2004. The first issue framed in the said suit is "whether the plaintiffs prove that they are the owners of 62 O.S. No.3609/2015 the property described in the plaint."
After consideration of the evidence, this Hon'ble Court in the judgment held that, "the plaintiffs failed to prove issue No.1, accordingly I answer issue No.1 in Negative."
The judgment is marked as Ex.P.36. The plaintiffs filed RFA No.1179/2004 on the file of Hon'ble High Court of Karnataka challenging the judgment and decree in O.S.No.7098/1991 dismissing the suit of the plaintiffs in its entirety. The Hon'ble High Court at para 13 of the judgment framed the following point for consideration in the Appeal. 'Whether the plaintiffs have proved their title to the schedule property? At the end of the said para, the Hon'ble High Court has given a finding that, the trial court was justified in dismissing the suit on the ground that the plaintiffs have not established their title to the schedule property as shown in the plaint. The judgment of the Hon'ble High Court of Karnataka in RFA No.1179/2004 is marked as Ex.P.40. At the time of dismissing the appeal, the learned counsel for the appellant submitted to Hon'ble High Court of Karnataka, since there is no dispute in so far as Ex.P.8 concerned, the trial court should have decreed the suit atleast to the extent of the schedule property shown in Ex.P.8 which is marked as Ex.P.5 in this case and accordingly the Hon'ble High Court declared the plaintiffs as the owners of the property as shown in Ex.P.8 i.e., Sy.No.81 measuring 2 acres, situated at 63 O.S. No.3609/2015 Hulimavu village within the boundaries as stated in the said order. Further, the Hon'ble High Court has held that, the defendants' title as shown in Ex.D.11 which is Ex.P.57 in this suit stands undisturbed. According to the case pleaded by the plaintiffs, Muthappa, the minor son of the 1 st plaintiff purchased 1 acre 38 guntas in Sy.No.81 of Hulimavu village as per the sale deed dated 18.07.1958 marked Ex.P.1 in this suit and Ex.P.8 in the earlier suit. Venkatamma, the mother in law of the 1 st plaintiff purchased 0-15 guntas of land in Sy.No.83 from Thoguru Ramaiah as per the sale deed dated 01.05.1943 marked as Ex.P.42. P.W.1 admits sale of 0-15 guntas in Sy.No.83. So, the remaining land available for the plaintiffs is 1 acre 38 guntas in Sy.No.81 of Hulimavu as per the judgment in RFA No.1179/2004. P.W.1 admits in the cross-examination that the plaintiffs family is in possession and enjoyment of 1 acre 13 guntas in Sy.No.81/4A and 0-25 guntas in Sy.No.83/3 which are adjacent to each other and situated within the boundaries as mentioned in exhibit in the sale deed dated 18.07.1958 marked as Ex.P.5 in this case. So from the above said facts coupled with the sale deed, it is clear that, the plaintiffs are in possession and enjoyment of the property purchased by the minor son of the 1 st plaintiff as per the sale deed dated 18.07.1959 marked as Ex.P.5 in the suit and Ex.P.8 in the earlier suit. Therefore, the plaintiffs have not proved their title to the property i.e., Sy.No.81/4A of Hulimavu village as claimed in the plaint.
64O.S. No.3609/2015
27. The plaintiff counsel further submitted that, the defendant has not let in evidence on his document dated 05.11.1964. The issue relates to analysis of the documents dated 05.11.1965 which is marked by the plaintiff themselves as Ex.P.57. What is required to be considered by this Hon'ble Court is that the schedule of the property in the document will have to be read. A careful perusal of the schedule to the document at Ex.P.57 there does not exist the property of the defendant at all.
28. The defendants have pleaded that they have purchased the land situated within the boundaries as mentioned in the registered sale deed dated 05.11.1964 marked as Ex.P.57 in this case. The said sale deed is also marked as Ex.D.11 in O.S.No.7098/1991. The Hon'ble High Court has declared the title of the defendants as per Ex.D.11 in RFA No.1179/2004 observing that, the defendants title as shown in Ex.D.11 stands undisturbed. With respect to this Hon'ble Court, in a suit for declaration and possession, burden is always on the plaintiff to establish its case irrespective of whether the defendants prove their case or not. In the absence of establishment of its own title, the plaintiff must be non sited even if the title set up by the defendants is against the defendants - weakness of the case set up by the defendants cannot be a ground to grant relief to the plaintiff as held by the Hon'ble Supreme Court of India in the 65 O.S. No.3609/2015 case reported in 2014(2) SCC 26.
The defendant relied on 2014 (2) SCC page 26 in Union of India and others - Vs - Vasavi Co-operative Housing Society Ltd., and others, wherein it has been held that, "A. Specific Relief Act, 1963 - Ss.34 and 5 - Suit for declaration of title and possession
- Burden of proof in case - Reiterated, burden is on plaintiff to establish its case, irrespective of whether defendants prove their case or not - In absence of establishment of its own title, the plaintiff must be non-suited even if title set up by defendants is found against them - Weakness of case set up by defendants cannot be ground to grant relief to plaintiff - Evidence Act, 1872, Ss.101 to 103."
So as per the above dictum the burden is always upon the plaintiff whether the defendants prove their case or not. Hence, here plaintiff has to prove his case and the dictum is applicable to case in hand.
Further in the said decision it is held that, the entries in the revenue record do not confer any title. The Hon'ble High 66 O.S. No.3609/2015 Court of Karnataka in RFA No.1179/2004 has clearly held that, "the defendants title as shown in ex.D.11 in O.S.No.7098/1991 and Ex.P.57 in the present suit stands un-disturbed" That is to say the Hon'ble High Court of Karnataka, Bengaluru itself has confirmed the title of the defendants as per Ex.D.11 in O.S.No.7098/1991 which is marked as Ex.P.57 in this suit. Therefore, though there no requirement for the defendants prove their title in a suit for declaration of title and possession, the Hon'ble High Court has confirmed the title, as such in this case, the defendant has proved the title in respect of the property described in the schedule to the plaint.
29. The plaintiff counsel further submitted that, during the pendency of the judicial proceedings there is an abuse of process of this Court. The defendant has played fraud on the property of the plaintiff. The fraud that came to be played by the defendants on the property of the plaintiff is that, the plaintiffs had filed O.S.No.7098/1991 on 25.11.1991. The prayer in the suit is for a declaration and consequential relief of permanent injunction. In the said suit marked Ex.P.31 an application for injunction was filed on 08.09.1994 marked Ex.P.32, considered order of injunction was granted with appropriate, proper reasoning. (The advocate representing the defendant has not read judgment at all and has been making submissions contrary to the said reasoning.) The reasoning 67 O.S. No.3609/2015 given in the I.A. is confirmed. The confirmation of the reasoning given in Ex.P.32 is to be understood. MFA 1782/1994 was filed by the defendant marked Ex.P.33. The case was taken up for orders and stay on 30.09.1994. The judgment was sought for upon counsel representing the plaintiffs respondents in Ex.P.33. Thereafter, on 01.03.1995 the Hon'ble High Court modified the order which reads as hereunder:
"However, it is indicated by him that the rights of respective parties are to be adjudicated and therefore both parties are directed as far as disputed land is concerned to maintain statusquo and not to either carry or any building activity or alienate or create any third party rights in respect of the disputed land. In the event of it being absolutely necessary the concerned party shall apply to the Court obtain orders before carrying out any alteration. This order was clandestinely was modified without survey on 12.01.1996. the order was passed on 05.01.2001. At that time there is an observation that deliberately evading notice."
30. The plaintiff counsel further submitted that, the Hon'ble High Court mentioned that, if they are ultimately required for reason to demolish that wall or roof they shall hold opposite party liable with granting permission to existing wire fence with brick wall, made clear shall that it shall subject to issuing of final orders that are passed. The plaintiff counsel further submitted 68 O.S. No.3609/2015 that, this order was sought for a review. The Hon'ble High Court ordered review in the said order Ex.P.35 is review order dated 15.06.2001. In the review order the Court directed that till the final orders are passed in the civil proceedings, the civil proceedings are was ensured that disputes have to be settled expeditiously and directed statusquo by appointment of a receiver. The defendant intentionally played fraud on Court. The plaintiff counsel further submitted that, Ex.P.36 is the judgment in O.S.No.7098/1991 dated 01.09.2004. While considering the case, the trial court dismissed the suit with regard to injunction. Since injunction indicated at page 34 it was read that before putting the compound the defendants had put up barbed wire fencing and clearly goes to show that the plaintiffs in that case whether plaintiffs in the present case could not protect possession and therefore the injunction decree was refused by dismissing the whole case. The plaintiff counsel further submitted that, The matter came up before the Hon'ble High Court. At the time of admission of the appeal the Court pleased to see order dated 20.11.2004, wherein it is mentioned C.M.Nagabhushan learned advocate agreed and therefore it was categorically made submission that, in terms of MFA order dated 01.03.1995 in 1782/1994 injunction is granted in the two Courts which is subject matter of present suit and directed maintaining statusquo order dated 01.03.1995 is to be looked into at Ex.P.33. In the circumstances, later portion of removed barbed wire 69 O.S. No.3609/2015 fencing, appointment of a receiver is waived off. The plaintiff counsel further submitted that, the defendants relied upon their documents in support of Ex.P.27. They relied upon the orders of revenue authorities, which are at Ex.D.6 and Ex.D.7 and the order at Ex.D.8. While adverting to the said order of the revenue authorities and the mutation entries, the defendants have waived their right by making the submission in Ex.P.40, P.41, P.42, but orders in RFA 1179/2004 mentioning that their right under the sale deed of the year 1964 is remain to be undisturbed. Therefore, non reference of the revenue orders before the Hon'ble High Court and giving up their right amounts to waiver. In the circumstances in MFA 1782/1994 the defendants deliberately during the pendency of the previous case dispossessed the plaintiff.
But surprisingly the plaintiff stated differently in para No.13 of plaint about dispossession. O.S.No.7098/1991 filed on 25.11.1991. The said suit came to be dismissed on 15.09.2014. The plaintiffs allege in the plaint at para 13 that on 9 th and 10th February 2001, the defendants have illegally put up compound wall covering the land in Sy.No.81/4B which is the suit schedule property. Challenging the dismissal of the suit, the plaintiffs preferred an appeal in RFA No.1179/2004 before the Hon'ble High Court of Karnataka. What prevented the plaintiffs to amend the plaint seeking relief of possession either in the trial 70 O.S. No.3609/2015 court or in the Appellate Court during the pendency of the suit and appeal respectively. This Hon'ble Court in O.S.No.7098/1991 has clearly held that, the plaintiffs have failed to prove their possession of the plaint schedule property i.e., Sy.No.81/4A, 81/4B and 81/4C of Hulimavu village and the said finding has been confirmed by the Hon'ble High Court in RFA No.1179/2004.
31. The defendant counsel vehemently argued that, the suit is hit by resjudicata. The defendant further submitted that, the issue No.1 framed in O.S.No.7098/1991 and second issue of the present case are one and the same.
32. The plaintiff counsel argued that, the previous case was one for declaration and injunction. The Hon'ble High Court granted declaration of title as per Ex.P.8 in O.S.No.7098/1991 and thereafter in the present case Ex.P.1 to Ex.P.28 are identifications of the property. The present is one for possession. Injunction was not granted. Therefore subsequent suit for possession does not becomes the principles of resjudicata.
It is pertinent to note that, in order to prove resjudicata the defendant must prove the ingredients. Hence, it is better to glance at Section 11 of C.P.C.
Section 11. Res judicata.
71O.S. No.3609/2015 No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto.
Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
72O.S. No.3609/2015 Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
[Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
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O.S. No.3609/2015
Explanation VIII.-- An issue heard and
finally decided by a Court of limited
jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.] In order to attract the principles of resjudicata, the following ingredients must be fulfilled: a) The matter must have been directly and substantially in issue in the former suit. b) The matter must be heard and finally decided by the Court in the former suit. c) The former suit must be between the same parties. d) The Court in which the former suit is instituted is competent to try the subsequent suit also which suit the issues have been subsequently raised. The defendants have fulfilled all the above said ingredients by way of producing required documents and also evidence. In this case, the plaintiffs had marked copy of the plaint in earlier suit O.S.No.7098/1991. The plaintiffs had also marked certified copy of the judgment in O.S.No.7098/1991. The D.W.1 in his evidence has marked certified copy of the issues as Ex.D.9. in O.S.No.7098/1991, the plaintiffs had claimed relief of declaration and injunction in respect of Sy.No.81/4A, 81/4B and 81/4C totally measuring 3 74 O.S. No.3609/2015 acres 20 guntas, situated at Hulimavu village, Begur Hobli, Bangalore South Taluk which is the plaint schedule property in O.S.No.7098/1991. In the present case, the plaintiffs are claiming a relief, i.e., directing the defendants to hand over vacant possession of the land bearing Sy.No.81/4B measuring 1 acre 15 guntas. Situated at Hulimavu village, which is the schedule property in the present suit. This is very clear that, in the earlier suit and in the present suit also Sy.No.81/4B measuring 1 acre 15 guntas is the subject matter. On the basis of the pleadings in O.S.No.7098/1991, this Hon'ble Court was pleased to frame issues. The issue No.1 reads as follows :
"Whether the plaintiffs prove that they are owners of the property described in the plaint?" In the present suit i.e., in O.S.No.3609/2015, the 2nd issue framed by this Court is as follows : "Whether the plaintiffs prove that they are lawful owners of the suit schedule property?" In view of the judgment delivered in O.S.No.7098/1991 and particularly issue No.1, the present suit operates as resjudicata as per Section 11 of C.P.C.
I rely upon a citation that was rendered in the City Municipal Bhalki by its Chief Officer - Vs - Gurappa (D) by LRs and Another reported in 2016 SAR (Civil) 1 the Hon'ble Apex Court held as :
"Civil Procedure Code,1908 - Sec.11 -75
O.S. No.3609/2015 Principle of resjudicata - Applicability of - This principle is a need of any judicial system, that is, to give finality to the judicial decisions of the disputes between the parties
- It also aims to prevent multiplicity of proceedings between the same parties of the same subject matter of the lis - An issue which was directly and substantially involved in a former suit between the same parties and has been decided and attained finality cannot be re-agitated before the Courts again by instituting suit or proceedings by the same parties on the same subject matter of earlier lis - To constitute a matter resjudicata, the following conditions must be satisfied :
i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit;
ii) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim;
iii) The parties must have litigated 76 O.S. No.3609/2015 under the same title in the former suit;
iv) The Court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which such issue is subsequently raise; and
v) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit."
The ratio laid down in the above citation is also applicable to the case in hand. It is pertinent to note that, Issue No.1 raised in O.S.No.7098/1991 and same Issue was raised as Issue No.2 in the present case. That Issue No.1 in O.S.No.7098/1991 was adjudicated, heard and finally decided by the earlier jurisdictional Court and the matter was challenged in which the Hon'ble High Court already given the verdict which has not been challenged by the plaintiffs. Moreover, IV explanation of resjudicata which is a constructive resjudicata is also applicable as the plaintiff already stated in para No.13 of plaint saying that the defendants disposed the plaintiff on 9 th / 10th February 2001 when as per their version they were dispossessed at that time O.S.No.7098/1991 was pending before the Court and it was disposed in the year 2004. They have not raised this case when they challenged before Hon'ble High Court of Karnataka. The 77 O.S. No.3609/2015 plaintiff cannot file case as and when they require. They could have amended the plaint and these matters should be brought on purview of the Hon'ble trial court and also Hon'ble High Court of Karnataka. The plaintiff counsel submitted that, the ground taken in earlier proceedings are different to this suit and they cannot split their relief one case and claim and other relief in another case.
For this I rely upon a citation that has rendered in Mohammed Khan (dead) through Legal Representatives - Vs - Ibrahim Khan and another reported in 2018 (14) SCC page 495, wherein it has been held that;
"A. Civil Procedure Code, 1908 - S.11 - Resjudicata - Applicability - Matter directly and substantially in issue in earlier suit, that is, claim of title to suit property - Doctrine of resjudicata, held, applicable - Ground that plea taken in earlier proceedings are different in subsequent proceedings, not relevant
- Appeal allowed - Impugned judgment of High Court set aside - Suit dismissed on issue of resjudicata by trial court, upheld - Property Law - Ownership and Title."
The ratio laid down in above dictum is also applicable to 78 O.S. No.3609/2015 this suit. Earlier the plaintiff filed suit for declaration and injunction which was dismissed in the year 2004 and it was challenged and as per the request of plaintiff and no objection of defendant the decree was modified as per RFA No.1179/2004. But the plaintiff not amended the plaint or brought to the notice of Hon'ble High Court of Karnataka about dispossession by the plaintiff in the year February 2001. Hence, this suit is hit by Resjudicata.
The defendant submitted that, the suit is barred by Order 2 Rule 2 of C.P.C. Foremost this Court opines to glance at Order 2 Rule 2 of C.P.C. reads as follows :
"2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs 79 O.S. No.3609/2015
--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation: For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
The plaintiff submitted that, the suit filed earlier is for different cause of action and relief and present suit is filed by different. But the defendant counsel submitted that, the earlier suit filed which was withdrawn saying that, it has some defects and they have to file suit as against revenue and survey authorities and after so many years after filed suit in O.S.No.7098/1991 for declaration and injunction and as per para No.13 of plaint the defendant dispossessed them on 9 th / 10th February 2001 but they have not included the same in that suit. Even when the suit was dismissed in the year 2004 and when they challenged the same as RFA No.1179/2004 there also they have not whispered anything about dispossession and they 80 O.S. No.3609/2015 relinquished their part of claim and it is hit by above provision of C.P.C.
The plaintiff relied upon a citation that was rendered in Gurubox Singh - Vs - Bhooralal reported in AIR 1964 SC 1810, wherein it has been held that, "Civil P.C. (5 of 1908), O.2 R.2(3) S.11 -
Plea of bar under O.2 R.2(3) - Proof - Plea to be established satisfactorily by defendant and cannot be presumed on basis of inferential reasoning - Defendant to file in evidence pleading in previous suit."
As per the above dictum the defendant proved that, the suit was between the same persons and in that suit the plaintiff was entitled to more than one relief to be claimed but the plaintiff has not claimed the same. Hence, this dictum is not helpful to the plaintiff.
The plaintiff counsel further relied on Sucha Singh Sodhi (D) Thr. Lrs - Vs - Baldev Raj Wealia and Another, wherein it has been held that, "(A) Civil P.C. (5 of 1908), O.2 R.2(2) -
Bar to second suit - Challenge as to - Suit for permanent injunction filed by plaintiff, 81 O.S. No.3609/2015 withdrawn and subsequent suit for specific performance filed - Both suits are founded on different cause of action and reliefs claimed are different - Bar under O.2, R.2 not applicable."
The ratio laid down in the above dictum is not applicable to present case. The earlier suit was withdrawn by the plaintiff saying that the plaint has some defects and they want to make survey department and Revenue Officers as parties. but after so many years they filed O.S.No.7098/1991 for declaration and injunction on same property and they say that defendant dispossessed them in the year 2001 and O.S.No.7098/1991 was pending before the Court and then they could have filed suitable application and brought amendment and relied on plaint but they did not do that and the suit was dismissed in the year 2004, still they kept for 3 years when the case was pending and after the disposal of the suit they challenged the same as RFA No.1179/2004 which was dispossessed in the year 2010 and still the plaintiff kept quiet. They had never revealed anything either before trial court or before Hon'ble High Court of Karnataka. Hence, the above dictum is not helpful to the plaintiff.
I rely upon a citation AIR 1975 M.P. 193 Santosh Chandra and others - Vs - Smt.Gyan Sundarbai and others, wherein it has 82 O.S. No.3609/2015 been held that, "The next point for consideration is whether a suit for bare declaration is maintainable in the circumstances of this case. Proviso to Section 34 of the Specific Relief Act, 1963, lays down that no Court shall make any such declaration where the plaintiff being able to seek further relief than mere declaration of title omits to do so. The object of this proviso is to avoid multiplicity of suits. Where the plaintiff is entitled to some consequential relief directly flowing from the right or title of which he seeks declaration in the suit, he must seek such relief along with the declaration. It is not open to him to seek a declaration in the first instance and a consequential relief at a later stage by 2 separate suits. This provision is mandatory and enjoins the Court not to pass a declaratory decree where the plaintiff omits to seek further relief to which he is entitled as a natural consequence of the declaration."
As per Order 2 Rule 2 of C.P.C., every suit shall include the 83 O.S. No.3609/2015 whole of the claim if the plaintiff is entitled to make in respect of the cause of action. The plaintiffs allege in the plaint at para 13 that on 9th and 10th February 2001, the defendants have illegally put up compound wall covering the land in Sy.No.81/4B which is the suit schedule property. Challenging the dismissal of the suit, the plaintiffs preferred an Appeal in RFA No.1179/2004 before the Hon'ble High Court of Karnataka. What prevented the plaintiffs to amend the plaint seeking relief of possession either in the trial court or in the Appellate Court during the pendency of the suit and Appeal respectively. So it is not the case pleaded by the plaintiff that, the defendants took possession subsequent to the disposal of the suit or the appeal. so the plaintiffs having not sought for the relief of possession in the suit itself, the suit is barred under Order 2 Rule 2 of C.P.C. On this ground the suit is not maintainable.
33. The defendant counsel further submitted that, the suit is bad for non joinder of party. The defendant counsel submitted that, they have already pleaded in their written statement stating that after conversion of the land they have entered into and Registered Development Agreement dated 26.09.2012 with M/s. Maa Real Ventures Pvt., Ltd. Company and said developer is not made as party. The plaintiff counsel submitted that, there is no specific mentioning as to who are the necessary parties.
While perusing para No.22 of the written statement it 84 O.S. No.3609/2015 reads as follows :
"In view of the pendency of the suit, the defendants could not make use of the properties for their beneficial enjoyment though the properties are situated within the jurisdiction of the BBMP. Therefore the defendants applied and obtained conversion of the lands measuring 20 guntas in Sy.No.81/4A, 32 guntas in Sy.No.81/4B and 01 Acres 18 guntas in Sy.No.83/4, which are situated in a compact block, which is enclosed by a compound wall, for non agricultural proposes as per the Official Memorandum of the Deputy Comissioner vide ALN (DB) SR168/2008-09, dated 25.07.2009, preceding payment of Rs.4,79,325-00 to the Revenue Authorities. The BBMP, pursuant to the conversion assessed the above said properties to taxes by assigning the said properties as Municipal No.1227/81/4A-83/4- 81/4B of Hulimavu Village and collected taxes from the year 2002 itself. Thus the defendants though partitioned the properties amongst themselves, have entered into a registered Development Agreement dated 85 O.S. No.3609/2015 26.09.2012, with M/s MAA REAL VENTURES PVT LTD., a company havint its registered office at 1/156, Chandra Rashmi Building, Bhansushali Lane and R.B.Mehta Marg Corner, Ghatkopar East Mumbai-400077, represented by its director Sri. Narshi Kanji Nakarani. The said Developer has already invested huge amounts in paying the amounts to the defendants as well as to obtain required permissions, sanctions and licenses from the concerned Authorities to put up a building. The JDA is a registered one and it is a public notice. The plaintiffs who are will aware of these developments have not made the said Developer as a party to this suit, therefore the suit is bad for non-joinder of necessary parties."
While perusing the same the defendant specifically mentioned the name of the company and office address too. While perusing the cross-examination of P.W.1 page 29 she admitted Joint Development Agreement which has marked as Ex.P.61. It is pertinent to note that, Ex.P.61 JDA dated 26.09.2012 which was produced and marked by P.W.1 herself and she admitted the same.
86O.S. No.3609/2015 In the cross-examination of P.W.1 in page 29, 6 th line reads as follows :
"It is true to suggest that as per Ex.P.61 the 1st defendant has entered into joint development agreement with the builder with respect to his land. It is true to suggest that by the time land was developed by the developer the plaintiffs have filed the present suit and got an interim order."
From the very version of the plaintiff and as per Ex.P.61 it is clear that there was Joint Development Agreement and they are the necessary and proper parties to the suit.
I rely upon a citation reported in ILR 2012 Karnataka page 4129 S.K.LAKSHMINARASAPPA. SINCE DECEASED BY HIS L.RS, V.SRI.B.RUDRAIAH.
"56. Therefore, it is necessary to find out who is a necessary party and who is a proper party to the suit. For determining the question who is a necessary party, there are two tests, one there must be aright to some relief against such party in respect of the matter involved in the proceedings in question: second-it should not be possible to 87 O.S. No.3609/2015 pass an effective decree in the absence of such a party. An eventual interest of a party in the fruits of litigation cannot be held to be the true test for impleading a party. Persons who ought to have been joined as parties are called necessary parties. I.e, persons in whose absence the Court will not be able to give effective decree at all. Therefore, a necessary party is a party without whose presence a suit cannot be proceeded with, I.e, party necessary to the constitution of the suit without whom no decree can at all be passed. Failure to implead a necessary party as a party to the proceeding is fatal to a suit.
57. A person is a proper party if his presence enables the Court to adjudicate upon the questions raised in a suit more effectively and completely. A proper party is one whose absence, an effective order can be made, but whose presence is necessary for a complete and final decision on the question involved in the proceeding. Proper parties are those whose presence enable the Court to adjudicate the issues more effectually and 88 O.S. No.3609/2015 completely. A person may be impleaded as a defendant to suit, though no relief may be claimed against him, provided his presence is necessary for a complete and final decision of the questions involved in the suit. Such a person is called a proper party as distinguished from necessary party."
As per above dictum developer is also a necessary and proper party to the present suit and when the name and address clearly mentioned in the written statement the plaintiff could have impleaded them as party to the suit. Even though they knew these facts, they have not impleaded them as party to the suit and it is pertinent to note that Joint Development Agreement is produced Ex.P.61 produced by the plaintiff but they have not impleaded them. Hence, this suit is bad for non joinder of necessary parties.
It is pertinent to note that, the plaintiffs have not addressed any evidence to state that defendants trying to alienate the plaint schedule property.
34. It is pertinent to note that, the witness admitted in the cross-examination as above stated that, the land was developed when they filed present suit and P.W.1 also admitted that, JDA 89 O.S. No.3609/2015 Ex.P.61 was known to her. The defendant already stated in his written statement in para No.22 saying that, the plaint schedule property is not in the nature of agriculture and it is coming under BBMP jurisdiction and D.W.1 reiterated in affidavit filed in chief examination but in the cross-examination it was not denied by the plaintiff through the evidence.
The plaintiffs have described the property in the schedule as follows : "Agricultural land bearing Sy.No.81/4B measuring 1 acres 15 guntas, situated at Hulimavu village, Begur Hobli, Bengaluru South Taluk, now within the territorial limits of the BBMP Ward No.193, Hulimavu, B.G.Road, Bengaluru-560076. Admittedly the suit schedule property is situated within the jurisdiction of BBMP Ward No.193. The property is converted and is assessed to taxes by the BBMP. If the property whether agricultural or converted, if it is situated within the jurisdiction of the BBMP, the property is to be assessed on the prevailing market value on the date of the suit. The defendants have marked Ex.D.12, a gazette notification dated 30.10.2014 issued by the State of Karnataka, fixing the guideline value for the fixation of the Market value. According to Ex.D.12, the market value of agricultural lands situated at Hulimavu village is fixed as Rs.2,50,00,000/- per acre.
90O.S. No.3609/2015 I rely upon a dictum rendered in J.M.Narayana and others
- Vs - Corporation of the City of Bengaluru reported in ILR 2005 Karnataka page 60, wherein it has been held that, "(A) KARNATAKA COURT FEES AND SUITS VALUATION ACT, 1958 - SECTION 7(2)B - KARNATAKA MUNICIPAL CORPORATION ACT, 1976 - SECTION 110 - DETERMINATION OF MARKET VALUE UNDER - HELD - Section 7 of the Act creates a legal fiction regarding the market value of lands that form an entire estate or a definite share of an estate are concerned - Paying annual revenue to the Government in Section 7(2)(b) is significant and it implies that the liability to pay land revenue must be clear and subsisting one.
(B) KARNATAKA MUNICIPAL CORPORATION ACT, 1976 - SECTION 110 -
Exemption of payment of property tax under
- HELD, If the lands are registered to be agricultural lands in revenue records of Government and are actually used for cultivation of crops, such lands are exempted from payment of property tax - But if such lands are included in the extended Corporation limits, the Land Revenue Act 91 O.S. No.3609/2015 would cease to be applicable to such lands. Appellant directed to pay deficit Court fee."
Above dictum is applicable to case in hand as in plaint schedule itself the plaintiff stated that, it comes under BBMP limits.
The plaintiffs have not disputed nor denied in the cross- examination of D.W.1 about the market value as stated in Ex.D.12. The revenue assessment as made in the plaint is not in accordance with law and accordingly the plaintiffs are required to value the suit schedule properties as per Ex.D.12 and have to pay required Court fee on the plaint.
The prayer of the plaintiff is for possession and cancellation of the document. The suit property measuring 1 acre 15 guntas. The Government guideline value as per the date of the suit, as per Ex.D.12 is Rs.2,50,00,000/-. Accordingly, the total value of the property is Rs.3,43,75,000/- to which the proper Court fee is Rs.3,79,000/- under section 29 read with 38(1) of KCF & SV Act.
The plaintiff submitted that, in the event this Court comes to the conclusion in the absence of any evidence before the Court either by the defendant or by the plaintiff that the registry of this Court holds payment of Court fee, the plaintiff undertakes to pay the Court fee on the issue. Hence he has to pay court fee of Rs.3,79,000/-.
92O.S. No.3609/2015 The suit is barred by limitation as per Article 64 of Limitation and also suit is hit by resjudicata as per section 11 of C.P.C. and Order 2 Rule 2 of C.P.C. and suit is bad for non joinder of necessary party. Accordingly, I answer issue No.1 to 4, 8, 9 in the NEGATIVE and issue No.5 to 7, additional issue No.1 and 2 in the AFFIRMATIVE.
35. ISSUE NO.10 : In view of the findings on the above issues and additional issues, I proceed to pass the following :
ORDER The suit of the plaintiffs is hereby dismissed.
The plaintiffs are hereby directed to pay Court fee of Rs.3,79,000/- as per under section 29 read with 38(1) of Karnataka Court Fee and Suit Valuation Act.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript thereof is corrected and then pronounced by me in the open court on this the day of 16th day of January 2024) (MAMTAZ) IX Addl. City Civil & Sessions Judge, Bengaluru C/C. LXXV Addl. City Civil & Sessions Judge, Bengaluru 93 O.S. No.3609/2015 A N N E X U R E List of witnesses examined for plaintiff:
P.W.1 N. Venkatashiva Reddy List of documents exhibited for plaintiff:
Ex.P1 GPA executed by the plaintiff dated 12.02.2021 in favour of Dw.1 Ex.P2 C.C of sale deed dated 01.05.1943 Ex.P2(a) Typed copy of Ex.P2 Ex.P3 C.C of sale deed dated 26.09.1948 Ex.P3(a) Typed copy of Ex.P3 Ex.P4 C.C of sale deed dated 03.11.1952 Ex.P4(a) Typed copy of Ex.P4 Ex.P5 C.C of sale deed dated 18.07.1957 Ex.P5(a) Typed copy of Ex.P5 Ex.P6 C.C of letter dated 16.11.2006 issued by Registrar of City Civil Court Ex.P7 C.C of the sale certificate dated 26.04.1941 Ex.P8 to 16 9 RTC extracts pertaining to Sy.No.81/4A Ex.P17 to 25 9 RTC extracts pertaining to Sy.No.81/4B Ex.P26 & 27 2 encumbrance certificate Ex.P28 to 30 3 Survey sketch Ex.P31 C.C of plaint in O.S 7098/1991 Ex.P32 C.C of orders passed on IA.No.1 O.S 7098/1991 Ex.P33 C.C of the order sheet in MFA 1782/1994 Ex.P34 C.C of petition in Review petition No.220/2001 Ex.P35 C.C of the orders passed in Revies Petition No.220/2001 dated 15.06.2001 94 O.S. No.3609/2015 Ex.P36 C.C of Judgment in OS No.7098/1991 Ex.P37 C.C of Decree passed in OS 7098/1991 Ex.P38 C.C of plaint in OS 4851/1995 Ex.P38(a) Sketch annexed to the plaint Ex.P39 C.C of order sheet in OS 4851/1995 Ex.P40 C.C of judgment in RFA No 1179/2004 Ex.P41 C.C of Decree in RFA No.1179/2004 Ex.P42 C.C of Judgment in RFA No.1179/2004 Ex.P43 C.C of Decree in RFA No.1179/2004 Ex.P44 C.C of order sheet in RFA No1179/2004 Ex.P45 5 photographs Ex.P46 C.C orders passed by deputy Ex.P47 Mutation register extract Ex.P48 Tax paid receipt Ex.P49 C.C Partition deed Ex.P50 C.C of orders passed on IA.No.5 in O.S.No.495/1982 Ex.P51 C.C of Village map Ex.P52 C.C of 3 notices issued by DDA are together marked Ex.P53 C.C of interim order passed in WP NO.21771/1990 Ex.P54 C.C of settle Akar Band Durast Ex.P55 C.C of survey sketch Ex.P56 C.C of Sale deed dated 26.09.1948 Ex.P57 C.C of Sale deed dated 05.11.1964 Ex.P58 C.C of Sale deed dated 05.10.1979 Ex.P58(a) Typed copy of Ex.P.58 Ex.P59 & 60 Two encumbering certificate Ex.P61 C.C of joint development agreement dated 26.09.2012 95 O.S. No.3609/2015 List of witnesses examined for defendant:
D.W.1 T. Srinivasa Reddy List of documents exhibited for defendant:
Ex.D1 List of Cases
Ex.D2 Photo
Ex.D3 Affidavit
Ex.D4 Judgment in O.S No. 4670/1995
Ex.D5 Decree in OS No.4670/1995
Ex.D6 Order of Tahasildar
Ex.D7 C.C of order in R.A 15/1986-87
Ex.D8 C.C of OS No.7098/1987
Ex.D9 C.C of issue in OS No.7098/1991
Ex.D10 C.C of Sale deed dated 26.07.1948
Ex.D11 C.C of Sale deed dated 13.02.1965
Ex.D12 C.C of Government notification
Ex.D13 C.C of Sale deed Sy.No.81:2 dated 10.05.1946
Ex.D13(a) Typed copy of Ex.D.13
Ex.D14 C.C Endorsement
(MAMTAZ)
IX Addl. City Civil & Sessions Judge,
Bengaluru
C/C. LXXV Addl. City Civil & Sessions Judge, Bengaluru
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