Bangalore District Court
D.V. Chandrashekar vs H.Subbarayabappa on 13 March, 2015
IN THE COURT OF I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.2)
Dated, this the 13th day of March, 2015.
PRESENT
Sri. RAVI M. NAIK,B.Com,LL.B.,
I Addl.City Civil & Sessions Judge, Bangalore.
O.S. NO.3095/1981
PLAINTIFFS 1. D.V. Chandrashekar ,
S/o Late S.N.Veerappa,
Hindu,Major,.
Residing at No.145,
N.S. Iyengar street,
Seshadripuram,
Bangalore. 560 020.
2. D.N. Swarnamba,
Wife of late D.N.Veerappa,,
Hindu,Major,
R/o No.11,Ramakrishnapura,
Bangalore City.
Since dead by L.Rs:
2(a) D.V. Sreekantaiah,
Since dead by L.R:
2(a)(i) Lokesh,s/o D.V. Sreekantaiah,
Residing at No.5,
Mathru Krupa,
N.S. Iyengar street,
Seshadripuram,
Bangalore.
2(b) Nanjundappa,
Since dead by L.R:
2 OS No.3095/1981
2(b)(i) SatishKumar, Residing at No. 5,
Mathru Krupa,
N.S. Iyengar street,
Seshadripuram,
Bangalore.
2(c). D.V.Chandrashekaraah,
S/o Late D.N. Veerappa,
Hindu,Major,
Residing at No.145,
N.S. Iyengar street,
Seshadripuram,
Bangalore
Represented by General
Power of Attorney Holder
M.Krishnaiah (dead), now
By Sri.Dwarakanath.
(GPA holder of plaintiffs by
H.R.Ananthakrishnamurth - Advocate)
- V E R S U S -
DEFENDANTs 1. H.Subbarayabappa,
S/o Hanumanthappa,
Residing at Site Nos.4 &5,
Now numbered as 1586,
Banashankari 1st stage,
2nd block,Bangalore -50.
2. Smt. Lakshmamma,
Hindu,Major,
D/o Chikkappaah,
Residing at No. 790,
7th cross, Hanumantha
Nagar,Bangalore 560 019.
3 OS No.3095/1981
3. The Commissioner,
Bangalore Development Authority,
Bangalore .
(D.1 & 2 by K.V.Vasanth,D.3 by N.Sudha-
Advocates
Date of institution of the suit : 17.10.1981
Nature of the suit (suit on Suit for declaration
pronote, suit for declaration and
possession suit for injunction,etc) :
Date of the commencement of 25-08-1995
recording of the evidence :
Date on which the Judgment was 13.3.2015
pronounced :
Total duration Year/s Month/s Day/s
33 04 26
(RAVI M. NAIK),
I Addl.City Civil & Sessions Judge,
Bangalore.
J U D G M E N T
Initially the present suit is filed by the plaintiffs against the defendants to declare that the first defendant is a tenant under the plaintiffs in respect of the suit schedule property on monthly rentals of Rs.120/- and to declare that the defendants No.1 & 2 have no right in any manner in respect of suit schedule property and further 4 OS No.3095/1981 seeking direction to the defendants No.1 & 2 not to induct any person in the suit schedule property and restraining the 3rd defendant from reconveying the suit schedule property. Thereafter, the plaintiffs have sought further amendment to the prayer column no.11(a) to declare that the plaintiffs are the absolute owners of the suit schedule property and added prayer column 11(a)(a) with a prayer seeking relief to further declare that the defendant nos.1 & 2 have no right in any manner to continue in possession of the suit schedule property and subsequently by way of amendment got deleted the prayer column no.11(d) and they also got amended the schedule of the plaint by mentioning the details of the suit schedule property.
2. The sum and substance of the case of the plaintiffs is that the plaintiff nos.1 & 2 purchased the site nos.4 & 5 in Sy.no.3 of Gerehalli village, from their common vendor Sri.Narasimhaiah on 30.3.1961. Subsequently said site numbers were given new numbers 5 OS No.3095/1981 as 1586 and 1586A by the 3rd defendant and it is further stated that they have put up construction of dwelling house in the suit schedule property. Thereafter, at the request of the first defendant, the plaintiffs let out the constructed portion osf the suit schedule property to the first defendant on a monthly rent of Rs.120/-. It is further stated that the first defendant claims that he purchased site no.40 in Sy.no.3 of Gerehalli village from one Ponnuswamy. It is further stated that presumably the site said to have been purchased by the first defendant is acquired by the 3rd defendant for formation of road. The first defendant is falsely claiming that the present suit schedule property is the site no.40 purchased by him and the defendant no.1 & defendant no.2 who is the wife of defendant no.1 have no right over the suit schedule property. The 3rd defendant has re- allotted/reconveyed the suit schedule property in favour of the plaintiffs and the 3rd defendant issued Possession Certificate and executed lease cum agreement of sale in 6 OS No.3095/1981 favour of plaintiffs and the defendant nos.1 & 2 being the tenants are falsely claiming right over the suit schedule property. It is further stated that the cloud is cast on the title of the suit schedule property and hence, the plaintiffs be declared as the owners of the suit schedule property. It is further stated that the plaintiffs being the owners of the suit schedule property are entitled for the possession of the suit schedule property and hence, the defendant nos.1 & 2 be directed to handover the vacant possession of the suit schedule property.
3. In pursuance of the suit summons, the defendant nos.1 to 3 have appeared through their counsel and contested the matter.
4. The sum and substance of the contention of the defendant nos.1 & 2 is that they are not aware of the purchase of site nos.4 & 5 by the plaintiffs. They further contended that the site no.1586 is situated in Banashankari 1st stage. They denied that the plaintiffs 7 OS No.3095/1981 have put up a dwelling house and further denied that the plaintiffs inducted the defendant nos.1 & 2 as tenant. It is contended that the plaintiffs have no right, title or interest over the suit schedule property. It is further contended that site no.28 of Sy.no.3 of Gerehalli village was renumbered by the BDA as 1586. On 10.3.1980 the first defendant sold the suit schedule property in favour of the 2nd defendant under a registered sale deed dated 10.3.1980 and in the said sale deed the original number of site was shown as no.40 of Sy.no.3 of Gerehalli village. But, some time later, the defendants came to know that the number should have been 28 instead of 40 and the rectification deed was executed and it was corrected as
28. The said site no.28 has been given no.1586 by the 3rd defendant. After the purchase of the site no.28, they put up a small construction and they are living in the said house. They have put up wire fencing. It is further contended that the suit for injunction without a prayer for declaration is not maintainable and the suit is barred 8 OS No.3095/1981 under Sec.21 of the Karnataka Rent control Act and barred under Order 2 Rule 2 of CPC. The plaintiffs have not pleaded that they are the joint owners of both the properties. Hence, the suit is based on different cause of action. It is further contended that since no relief is sought against the defendant no.3, the suit is not maintainable against the defendant no.3.
5. In the additional written statement, the defendant nos.1 & 2 have further contended that the suit is barred by limitation. The LRs of the 2nd plaintiff are not brought on record. The power of attorney executed by 2nd plaintiff has ceased on her death. Therefore, the right to sue does not survive. The defendant nos.1 & 2 have denied that the 3rd defendant allotted sites to the plaintiffs and also denied the issuance of possession certificate in respect of the suit schedule property. It is further contended that the possession certificates issue by the 3rd defendant does not pertain to the suit schedule property and it pertains to the property situated 9 OS No.3095/1981 at Banashankari 3rd stage. It is further contended that the defendant nos.1 & 2 are in adverse possession of the suit schedule property to the knowledge of plaintiffs for a period of more than 12years.
6. In her further additional written statement, the defendant no.2 has contended that the 3rd defendant illegally re-allotted the suit schedule property in favour of the plaintiffs in the year 1983. It is further contended that the plaintiffs goes on changing the stage of the location of the suit schedule property and measurement and the plaintiffs are not definite whether the suit schedule property is situated in 1st or 3rd stage of Banashankari. Hence, prayed for dismissal of the suit.
7. The 3rd defendant has filed a separate written statement contending that the suit is not maintainable. The 3rd defendant has allotted the sites in question in favour of the plaintiffs and delivered possession and also possession certificates are issued in favour of the plaintiffs. It is further contended that the survey number 10 OS No.3095/1981 in which the suit schedule property is formed was acquired by the 3rd defendant for formation of Banashnakari 3rd stage and the 3rd defendant has also admitted that the sites in question were allotted to the plaintiffs because the revenue site holders were re- allotted the sites as per the decision taken by the Board. It is further contended that there is no cause of action to file the suit against the 3rd defendant and hence, prayed for dismissal of the suit.
8. This Court after adjudicating the matter on merits, dismissed the suit by its judgment dated 19.6.1999. Against the said judgment and decree the plaintiffs herein preferred an appeal before the Hon'ble High Court of Karnataka in RFA No.489/1999. In the said RFA the Hon'ble High Court of Karnataka appointed the Surveyor commissioner. The Surveyor Commissioner submitted the report. In para No.11 of its order, the Hon'ble High Court of Karnataka made an observation to give a finding regarding identity of the site after giving 11 OS No.3095/1981 opportunity to both plaintiffs and defendants to adduce further evidence and to decide the disputed fact regarding the identity of the site and remanded the matter. Thereafter the plaintiffs moved an application before this Court for amendment as per I.A.No.19 and that amendment application came to be rejected. Against the said order on I.A. No.19 plaintiffs preferred Writ Petition before the Hon'ble High Court of Karnataka in Writ Petition No.45252/2013 and the Hon'ble High Court of Karnataka in the said Writ Petition quashed the order on I.A. No.19 and allowed the amendment application. Accordingly the plaintiffs have carried out the amendment to the schedule of the plaint as now in 1st stage.
9. During the pendency of the suit, 2nd plaintiff died. Her legal heirs are brought on record as plaintiff nos.2(a),2(a)(i),2(b), 2b(i) and 2(c), other than the plaintiff no.1. The defendant no1. died during the pendency of the case. His wife defendant no.2 is on record. 12 OS No.3095/1981
10. On the pleadings of the parties, this Court has framed the following issues and additional issues:
1. Do plaintiff proves that defendants 1 and 2 are the tenants in occupation of suit schedule property of plaintiffs on monthly rent of Rs.120/- ?
2. Do they further prove that they are entitled for possession from defendants 1 and 2 ?
3. Do they prove that they are entitled for declaration and permanent injunction as prayed for in the plaint ?
4. What decree or Order ?
Addl.Issues :
5. Whether the suit against the 3rd defendant is not maintainable ?
6. Whether the 3rd defendant proves the acquisition of the lands out of which the suit property is carved ?
7. Whether there is no cause of action for the suit against the 3rd defendant ?
8. Whether the plaintiff proves the allotment of suit site in his favour by 3rd defendant ?
9. Whether the suit is barred by time ?
10. Whether the defendants 1 and 2 have perfected their title to the suit property by adverse possession ?13 OS No.3095/1981
Addl.Issue framed on 12.6.1995 :
11. Whether the plaintiffs have title to the suit schedule property ?
Addl.Issues framed on 12.8.2014 :
12. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property ?
13. Whether the suit is not maintainable for want of necessary parties as contended by the defendant no.2 ?
11. In the initial stage, the power of attorney holder of the original plaintiff No.2 was examined as PW-1 and plaintiff No.1 was examined as PW-2. One Dwarakanath on behalf of plaintiffs was examined as PW-3 and Exs.P.1 to Ex.P.20 & 20(a) documents came to be marked. The defendants have not examined any person. Ex.D.1 & D.2 came to be marked on behalf of the defendants. After the remand, power of attorney holder of plaintiff No.1 and the power of attorney holder of legal heirs of the 2nd plaintiff was examined as PW-4 and Exs.P.21 to 30 came to be marked through PW-4. On behalf of the defendants nos.1 & 2, the power of attorney holder of the 2nd 14 OS No.3095/1981 defendant and Asst. Commissioner Reconveyance and Reallotment, BDA are examined as DWs-1 & 2 and Exs.D.3 to D.17 came to be marked. The Surveyor Commissioner is examined as CW-1 and Exs.C.1 to Ex.C.7, 7(a) came to be marked through him.
12. The learned counsel for the plaintiffs has relied on the decisions reported in :
1. AIR 1974 Madhyapradesh 75-Shikharchand and others Vs smt. Baribai and others.
2. AIR 2006 Bombay 134- HSBC Bank, USA Vs. Silverline Technologies Ltd., and another;
3. AIR 2010 SC 2077-Karam kapahi and others Vs M/s. Lal chand Public Charitable Trust and another;
4. AIR 1974 SC 471- Nagindas Ramdas Vs. Dalpatram Locharam @ Brijramand and others;
5. AIR 1960 SC 100 - Narayan Bhagwantrao Vs. Gopal Vinayak Gosavi;
6. 2012 AIR SCW 4136 - The Church of Christ Charitable Trust & Educational Trust represented by its Chairman Vs. Mrs.Ponniamman Educational Trust.
7. AIR 1996 SC 642 - Muni lal Vs. Oriental Fire and General Insurance Co.Ltd & another.15 OS No.3095/1981
8. AIR 1967 SC 436 - Vemareddi Ramaraghava Reddy and others Vs. Konduru Seshu reddy and others;
9. AIR 1983 AP 214 - Government of State of Orissa, Bhubaneshwar Vs. Jaldu Ramarao and Co.
10. AIR 1975 SC 1409 - P.Venkateshwarulu Vs. The Motor & General Traders;
11. AIR 1968 Orissa 230 - Bhismadev Taria and another Vs. Radhakishan Agarwal and others;
12. AIR 1994 Orissa 86 - Debahari Kumbhar Vs. Sribatsa patra & another;
13. AIR 1977 SC 1599 - Smt.Kanta Goel Vs. B.P.Pathak and others;
14. AIR 1976 SC 2335 - Sriram Pasricha Vs. Jagannath and others;
15. AIR 1974 SC 1178 - Shikarchand Jain Vs. Digamber Jain Praband karini Sabha & others;
16. AIR 2007 Calcutta 94 - Smt.Rajakumari Jaiswal Vs. Ramesh Kumar Jaiswal;
17. AIR 1960 Kerala 93 - Kannan and others Vs. Chirudu and others;
18. AIR 2005 NOC 302 - (Head Note-B) Ranchod B.Das Vs. LRs of Kanhaiyah lal;
19. AIR 1964 SC 859 - Kamladevi Vs. Takhatmal and another;
20. AIR 1997 SC 2930 - D.N.Venkatarayappa and another Vs. State of Karnataka and others;16 OS No.3095/1981
21. AIR 2001 SC 623 - Munoji Rao Vs. T.Krishna and others.
13. Heard the learned counsel for the plaintiffs and defendants nos.2 & 3.
14. My findings on the above issues are :
Issue no.1 : In the negative
Issue no.2 : In the affirmative
Issue no.3 : Does not arise for consideration Addl.Issue no.5 : In the negative Addl.issue no.6y : In the affirmative Addl.issue no.7 : In the negative Addl.Issue no.8 : In the affirmative Addl.issue no.9 & 10 : In the negative Addl.issue no.11 & 12 : In the affirmative Addl.issue No.13 : In the negative Issue no.4 : As per final Order For the following:
REASONS
15. Before answering the issues, I would like to state the admitted facts of this case. Subject matter of this suit forms part of Sy.no.3 of Gerehalli village. That survey number totally measures 9acres 3guntas out of which 2acres 3guntas is kharab land and remaining land is 7acres 12guntas. Out of 7acres 12guntas, 4acres of area was purchased by Narasimhaiah which is the 17 OS No.3095/1981 northern portion of the said survey number. Remaining 3acres 12guntas was purchased by Ponnuswamy which is the southern portion of the said survey number. Both Narasimhaiah and Ponnuswamy formed layout. In the layout formed by Narasimhaiah site no.4 was purchased by the first plaintiff and site no.5 was purchased by the 2nd plaintiff. Defendant nos.1 & 2 are claiming themselves to be the owners of site no.40 or 28 in Sy.no.3 of Gerehalli village.
16. Addl.Issue nos.11 & 12: The heavy burden is on the plaintiffs to establish that they are the owners of the suit schedule properties. After the remand, the Power of Attorney holder of plaintiffs-PW.4 is examined before this Court. The sum and substance of the contention of PWs.1 to 3 & 4 is that the present plaintiffs i.e., the son and mother had purchased revenue site nos.4 & 5 from their vendor Sri.Narasimhaiah. To substantiate their contention, the plaintiffs have got marked Exs.P.23 and P.24 i.e., certified copies of sale deeds both dated 18 OS No.3095/1981 30.3.1961. The recitals of Ex.P.23 & 24 disclose that the first plaintiff purchased the revenue site no.4 and 2nd plaintiff purchased the revenue site no.5 from the common vendor Sri.Narasimhaiah. In Ex.P.24, the boundaries of site no.4 is mentioned as under:
£Á®Ì£ÃÉ ¤ªÉñÀ£z À À ZÀPÀÄ̧A¢:
¥ÀƪÀðPÉÌ : 25Cr gÀ¸ÉÛ, ¥À²ªÑ ÀÄPÉÌ : ¸ÀéuÁðA§ CªÀjUÉ ªÀiÁjgÀĪÀ 5£Éà £ÀA§j£À ¤ªÉñÀ£À GvÀÛgPÀ ÉÌ : 20 Cr gÀ¸ÉÛ zÀQëtPÉÌ : 7£Éà £ÀA§j£À ¤ªÉñÀ£À F ªÀÄzsÉå ¥ÀƪÀð ¥À²ÑªÀÄPÉÌ 40 Cr, GvÀÛgÀ zÀQëtPÉÌ 50CrUÀ¼ÀļÀî SÁ° ¤ªÉñÀ£À PÀA æ iÀÄ¥ÀvPÀæ ÉÌ M¼À¥ÀnÖgÀÄvÀÛz.É In Ex.P.23, the boundaries of revenue site no.5 is mentioned as under:
LzÀ£ÃÉ ¤ªÉñÀ£z À À ZÀPÀÄ̧A¢:
¥ÀƪÀðPÉÌ : r.«.ZÀAzÀ± æ ÃÉ RgÀgª À j À UÉ PÀA æ iÀĪÀiÁrgÀĪÀ £Á®Ì£ÃÉ £ÀA§j£À ¤ªÉñÀ£À ¥À²ªÑ ÀÄPÉÌ : ¸ÀIJïÁ¨Á¬ÄAiÀĪÀgÀ ¤ªÉñÀ£À GvÀÛgPÀ ÉÌ : 20 Cr gÀ¸ÉÛ zÀQëtPÉÌ : SÁ° d«ÄãÀÄ F ªÀÄzsÉå ¥ÀƪÀð ¥À²ÑªÀÄPÉÌ 40 Cr, GvÀÛgÀ zÀQëtPÉÌ 50CrUÀ¼ÀļÀî SÁ° ¤ªÉñÀ£À PÀA æ iÀÄ¥ÀvPÀæ ÉÌ M¼À¥ÀnÖgÀÄvÀÛz.É
17. According to the plaintiffs, initially the said suit lands were comprised in Sy.no.3 of Gerehalli village.19 OS No.3095/1981
Thereafter, now they come under the jurisdiction of Corporation Division No.31 and the Bangalore Development Authority has assigned the number to the said site nos.4 & 5 as 1586 and 1586(A) and Sy.No.3 was acquired initially for formation of Banashankari III stage. But, now, the plaintiffs have come to know that the said sites are reallocated in Banashankari I stage instead of III stage and it is further contended that the first and 2nd defendants are claiming themselves to be the owners of site no.40 or 28 in Sy.no.3 of Gerehalli village and they further claim that they purchased the said site from Ponnuswamy. The said site and the present suit schedule properties are different. Site no.28/40 is acquired by Bangalore Development Authority and Bangalore Development Authority has not allotted sites to the defendant nos.1 & 2. On the contrary, the revenue site nos.4 & 5 i.e., 1586 and 1586A now situated in Banashankari I stage, were reconveyed/re-allotted to the plaintiffs by the Bangalore Development Authority and 20 OS No.3095/1981 the boundaries and description of the site no.28/40 do not tally in any way with revenue site nos.4 & 5 i.e., the suit schedule properties.
18. Undisputedly, the present plaintiffs purchased the site nos.4 & 5 from their vendor Sri.Narasimhaiah and the defendant nos.1 & 2 purchased the site from their vendor Sri.Ponnuswamy. Ex.P.20 is the Power of attorney executed by Sri.Ponnuswamy in favour of defendant no.1 Subbarayappa. In Ex.P.20, the boundaries of the property sold to defendant no.1 i.e., site no.40 is mentioned as under:
This site no.40 with watchman shed in Sy.no.3 of Gerehalli village, Bangalore City Corporation, N-division, Sy.No.31 measuring east to west 60ft. approximately, and north to south 60ft. approximately and bounded as follows:
East by : Bramha Chaitanya Mandira West by : 30ft. road North by : BDA road South by : Dwarakanath & Gopal's site.
19. Except the boundaries mentioned in Ex.P.20, the defendant nos.1 & 2 have not produced any 21 OS No.3095/1981 documents much less the original sale deed under which the first defendant purchased the property from Ponnuswamy. They have also not produced the rectification deed.
20. The contention of the learned Counsel appearing for the defendants nos.1 & 2 is that the suit property itself is the property stated in Ex.P.20 i.e., site no.40/28 purchased by the first defendant. After the remand, the surveyor is examined as CW.1. As per the direction of the Hon'ble High Court of Karnataka, he has prepared the survey report as per Ex.P.25 and prepared the sketch and in detail he has mentioned the location of the suit property and other properties with map. In Ex.C.1, he has shown properties bearing no.1586 and 1586A and he has also shown the portion of the property which is in possession of defendant no.2. His report is to be read with Ex.C.5. In Ex.C.5, the exact location of the suit schedule property is shown. In the index column of Ex.C.5, the AC sheet house/shed exist in site no.1586 22 OS No.3095/1981 and the location of 1586 and 1586A has been clearly shown. It is also stated in the index of Ex.C.5 that earlier site nos.1586 and 1586A were coming in Sy.no.3 of Gerehalli village, Srinivasanagar, Banashankari 3rd stage, but actually these sites have been incorporated in Banashankari 1st stage, 2nd block layout plan. The recitals shown in the Index column of Ex.C.5 is corroborated by the plaint averments at para-2 in the initial stage itself the plaintiffs have stated that the suit schedule property is situated in Banashankari first stage. That aspect is also corroborated by the evidence of independent witness CW.1. At page-6 para-6 wherein he has categorically stated that as per the blue print layout plan supplied by the Bangalore Development Authority, i.e., Kodamballi, represented by its Supervisor, who working at that time working in Bangalore Development Authority has stated that site no.1586 is situated in first stage of Banashankari. No doubt, in the possession Certificates (both marked as Ex.P.14) issued by the 23 OS No.3095/1981 Bangalore Development Authority, it is mentioned as 1586 and 1586A, Banashankari 3rd stage. But, the possession certificates Ex.P.14 were issued in favour of plaintiffs on 7.6.1983. Ex.P.15 is the proceedings of Bangalore Development Authority dated 6.1.1979. The proceedings disclose that in the year 1979 itself as per the resolution no.657, the other survey numbers including Sy.no.3 of Gerehalli village were acquired by Bangalore Development Authority for formation of Banashankari 3rd stage. Thus, it is clear that initially the Sy.no.3 was acquired for formation of layout - Banashankari 3rd stage including the present suit schedule property. Ex.D.12 i.e., note sheet of the Bangalore Development Authority is a material document. The hind portion of scanned page no.2 of Ex.D.12 further clarifies that Sy.no.3 of Gerehalli village was acquired for formation of Banashankari 3rd stage. The scanned page no.4 of Ex.D.12 further discloses that the present defendant no.2 has also moved an 24 OS No.3095/1981 application for reconveyance/re-allotment of site in Banashankari 3rd stage itself. The legal opinion mentioned at scanned page no.14 of Ex.D.12 dated 21.6.1980 discloses that under the re-allotment scheme as per the Board Resolution of the 3rd defendant, Sy.no.3 of Gerehalli village comes within the purview of Banashankari I stage. The recitals of Ex.D.12 at scanned page no.44 reveals that the Executive Engineer, South Division, BDA, has made a note as under:
"Gerehalli Sy.no.3 has been acquired for BSK 3rd stage, Srinivasanagar Layout. Since site numbers in question comes in this survey number, accordingly allotted under BSK 3rd stage and possession certificate issued. On further development and formation of road, this site is released in BSK 1st stage, 2nd block. There is no separate sites of same in BSK 1st stage, 2nd block, except the site in question. Site no.1586 and 1586A for which allotment is made under BSK 3rd stage are the same which are situated in BSK 1st stage, 2nd block. This is for further needful."
The aforesaid observation of the Ex.Engineer, South Division stated at scanned page no.44 clearly depicts that the present suit schedule property was initially acquired for formation of BSK 3rd stage and possession certificate 25 OS No.3095/1981 was also issued in favour of the plaintiffs and further, on development and formation of road, this site is released in BSK 1st stage and there is no separate site situated in Banashnakari 1st stage with the same number other than the site bearing no.1586 and 1586A. Obviously the Possession Certificates i.e., Ex.P.14 and Lease cum agreement of sale were issued in respect of Banashankari 3rd stage. It is clear that the suit schedule property for which allotment is made by the 3rd defendant in BSK 3rd stage, is now situated in BSK 1st stage.
22. The 3rd defendant in Ex.D.14 i.e., counter affidavit filed before the Hon'ble Apex Court at para-3 has clearly stated that Sy.no.3 of Gerehalli village was acquired by Bangalore Development Authority and after passing the award, possession was taken by the 3rd defendant Bangalore Development Authority on 23.9.1980. In para-4 of the affidavit Ex.D.14, the 3rd defendant has clearly stated the total extent of Sy.no.3 of Gerehalli village and further stated that northern portion 26 OS No.3095/1981 of 4acres was sold on 25.5.1959 to K.N.Narasimhaiah who is the vendor of the plaintiffs and southern portion measuring 3acres 12guntas was sold to Ponnuswamy.
23. DW.1 in his cross-examination at page-7 para-6 has admitted that the plaintiffs purchased the sites from Narasimhaiah in the year 1960-61 prior to the purchase of the land by the defendant no.2 from her vendor Ponnuswamy. The recitals of Ex.D.11 discloses that the 2nd defendant alleged to have purchased the property in Sy.no.3 of Gerehalli village on 10.3.1980. Even according to the recitals of Ex.D.11, the plaintiffs have purchased the suit property almost 19years prior to the purchase of the property by defendant no.1 & 2 from Ponnuswamy. In his cross-examination at page-9 DW.1 has clearly admitted that the suit property situated about 500 to 600ft. from Bramha Chaitanya Mandira. From the said version of DW.1, it is clear that Bramha Chaitanya Mandira is not located nearby the boundaries of the plaint schedule property. That aspect is further 27 OS No.3095/1981 corroborated by the version of CW.1 coupled with the recitals of Ex.C.2. CW.1 in his evidence has stated that Ex.C.2 is based on the original P.T.Sheet and as per the P.T.Sheet, i.e., original of Ex.C.2, CTS no.2083 is the present suit schedule property which is in one compact block and said 2083 is marked at Ex.C.2(a). On careful perusal of Ex.C.2, site no.40 is shown as CTS 2114 which is far away from the present suit property. Undisputedly the property alleged to have been owned by the 2nd defendant has not been reconveyed/reallotted by the Bangalore Development Authority in the name of the 2nd defendant after acquisition by the Bangalore Development Authority for the formation of layout. Even if it is considered that the boundaries furnished by the defendant no.2 in respect of property bearing no.40/28, Bramha Chaitanya Mandira is situated on the eastern side of the property i.e., site no.40/28. According to DW.1 said Bramha Chitanya Mandira is located about 500 to 600ft. away from the suit schedule property. 28 OS No.3095/1981 PW.1 has also stated in his evidence that suit schedule property is situated 700ft. away from Bramha Chaitanya Mandira. When that being the case, at any stretch of imagination, the property owned by the defendant no.2 stated in Ex.P.20, cannot be the suit schedule property.
24. On careful perusal of cross-examination of PW.1 at page-17, it reveals that the General Power of Attorney holder of the plaintiffs i.e., PW.1 has stated the boundaries of the suit schedule property and he has stated that towards the north of the suit property no.1587 is situated. That aspect is corroborated by the recitals of Exs.P.26 and P.27 i.e., lease cum sale deed executed by the 3rd defendant in favour of the plaintiffs. In the description column of the suit schedule property in Ex.P.26 and P.27, it is stated as north by: site no.1587, south by : road.
25. The bone of contention of the learned Counsel appearing for plaintiffs is that once the properties acquired by the 3rd defendant for formation of layout, the 29 OS No.3095/1981 defendant looses the right over the property alleged to have been owned by him and the property vests with the third defendant. Sec.16 of the Land Acquisition Act contemplates that once the property is acquired, the possession is taken, that property vests absolutely with the Government free from all encumbrances. In the instant case, the recitals of Ex.P.15 resolution no.657 clearly reveals that the entire Sy.no.3 and other survey numbers of Gerehalli was acquired by BDA for formation of layout on 6.1.1979. It is pertinent to note that the defendant nos.1 & 2 have not chosen to produce the original sale deed under which the defendant no.1 alleged to have purchased the site no.40. Only based on the recitals of Ex.P.20 without the original sale deed and the recitals of rectification deed, it is hard to believe that the suit schedule property itself is the property alleged to have been purchased by the first defendant. No doubt, in Ex.D.11, there is a recital that Smt.Lakshmamma purchased the revenue site out of 30 OS No.3095/1981 Sy.no.3 of Gerehalli village on 10.3.1980 and she requested for re-allotment of the same. According to the defendant no.2, she moved an application for re- allotment/reconveyance of site owned by her. But, DW.1 failed to produce the copy of the said application. The learned Counsel appearing for the defendant no.2 drew the attention of this Court to the recitals of Ex.D.3, Col.no.8 and argued that in the said column of Ex.D.3, in respect of site no.1586, the name and address of the lessee is blank and in respect of site no.1587 the name and address of the lessee Smt.Shantabai is mentioned. If really the site no.1586 was allotted to the plaintiffs, their names would have appeared in the said column no.8 and he further argued that in respect of 1587, the photo of the allottee is fixed, but no photo is affixed in respect of site no.1586. As against the said argument, the learned Counsel appearing for the plaintiffs contended that Col.no.1 of Ex.D.3 at the top most portion the site no.1586 is written and on the above said site no.1586, it 31 OS No.3095/1981 is written as 'allotted'. That itself shows that the said property is deemed to have been allotted to the plaintiffs. No doubt, there is an irregularity in filling up the columns in Ex.D.3 pertaining to site no.1586. But, the fact remains that the said site no.1586 was allotted to the present plaintiffs and that is clear from the recitals of Possession Certificates Ex.P.14 and lease cum sale deed Exs.P.26 and P.27.
26. The learned Counsel appearing for the defendant no.2 contended that the defendant no.3 has not intimated regarding the re-allotment/reconveyance of the site belonged to defendant no.2 whereas it intimated the same to the plaintiffs under Exs.P.7 and P.8. It is pertinent to note that the plaintiffs under Exs.P.3 and P.4 have paid the layout charges way back on 8.11.1981 and Exs.P.5 and P.6 further reveals that they further paid the amount on 9.11.1981. Thus, it is clear that the plaintiffs were persuading re-allotment/reconveyance of the suit schedule property before the 3rd defendant. The 32 OS No.3095/1981 recitals of Exs.P.9 to P.13 further disclose that subsequent to the payment of layout charges, the plaintiff nos.1 & 2 have paid the value of the sites and other incidental charges as prescribed by 3rd defendant in the year 1983 i.e., on 7.6.1983. The defendant no.3 issued Possession Certificates. In both the Possession Certificates Ex.P.14, it is clearly stated that site no.1586 is allotted to the first plaintiff and site no.1586A is allotted to the 2nd plaintiff. The boundaries and the measurements of the allotted sites were also mentioned. The boundaries pertaining to the suit schedule property mentioned in Ex.P.14 tallies with the boundaries mentioned in Exs.P.26 and P.27 i.e., the lease-cum-sale agreement. No doubt, in the said documents, it is mentioned as 'Banashankari 3rd stage'. CW.1 in his cross-examination at page-6 para-6 has clearly stated that as per the survey records supplied by the Bangalore Development Authority, the site no.1586 is situated in Banashankari first stage.
33 OS No.3095/1981
27. In a decision relied on by the learned Counsel appearing for the plaintiffs, reported in AIR 2007 Calcutta 94 at para-40, the Hon'ble High Court of Culcutta has held as under:
"Not all amendments date back to the time of institution of the proceedings. Subsequent events can, by their very nature, not date back, yet have a bearing on the relief or on the additional relief sought."
28. In another decision relied on by the learned Counsel appearing for the plaintiffs reported in AIR 1960 Kerala 93, at para-1, the Hon'ble High Court of Kerala has held as under:
"I am in respectful agreement with the conclusion therein that, when by reason of subsequent events the original relief claimed has become inappropriate or when it is necessary to shorten litigation or to do complete justice between the parties, it is incumbent on the court to take note of these subsequent events and mould its relief accordingly, leave to amend being granted, if necessary for the purpose, under O.6 R.17 CPC."
29.In another decision relied on by the learned Counsel appearing for the plaintiffs reported in AIR 2005 34 OS No.3095/1981 NOC 302(Rajasthan), wherein the Hon'ble High Court of Rajasthan at Head Note-B has held as under:
"(B) Civil.P.C.(5 of 1908), O.6, R.17 -
Amendment of pleadings - Doctrine of relation back - cannot apply in cases where relation back of pleading will make pleadings meaningless or would be contrary to purpose for which amendment was sought - It would not apply where filing of petition/plaint on subsequent dates has important bearing." In the instant case, no doubt, at the time of filing the suit, the plaintiffs have furnished the description of the suit schedule property and averred that the suit schedule property is located in 3rd stage, Banashankari. In view of the acquisition of Sy.no.3 of Gerehalli village by the 3rd defendant for formation of layout and after comprehensive survey conducted by CW.1, the Surveyor has clearly opined that the suit schedule property lies in Banashankari first stage. Accordingly, the plaintiffs have amended the schedule of the plaint showing the suit schedule property is situated in Banashankari first stage. Therefore, as rightly argued by the learned Counsel appearing for the plaintiffs, on account of 35 OS No.3095/1981 subsequent events, the plaintiffs constrained to file the amendment application and rightly averred that the suit schedule property is situated in Banashankari first stage.
30. The defendant no.2 has not produced any cogent material to controvert the version of CW.1 or the averments made in the sketch to show that the suit schedule property is not located in Banashankari first stage. Thus, the material placed before this Court is very much clear that the suit schedule property now located in Banashankari first stage.
31. It is pertinent to note that other than Ex.P.20, the defendant nos.1 & 2 have not produced any other documents to show the identity or location of site no.40 or site no.28. The learned Counsel appearing for the plaintiffs contended that it is trite law that General Power of Attorney should be strictly construed. In support of his contention, he has relied on a decision reported in 2012 AIR SCW 4136. In the said decision, the Hon'ble Apex Court at page-41,42 at para-14 has held as under: 36 OS No.3095/1981
"Next we have to consider the power of attorney. It is settled that a power of attorney has to be strictly construed."
In the light of the ratio laid down by the Hon'ble Apex Court as supra, regarding the boundaries of the property alleged to have been owned by the defendant nos.1 & 2, this Court cannot look into any other aspect other than the averments of Ex.P.20. The bone of contention of the learned Counsel appearing for the plaintiffs is that in his cross-examination DW.1 at page-14 para-12 by seeing the Ex.C.1, he has clearly stated that Bramha Chaitanya Mandira is situated in site no.1692 and further in para- 12 he has admitted that site no.1586 was assigned by the CITB 30years prior to Ex.P.20 and in the very same para he has further admitted that since prior to Ex.P.20 site numbers were allotted by the CITB, no question of giving site numbers 40 or 28. Further he drew the attention of this Court to the averments made in Ex.P.28 at para-5 and argued that the 3rd defendant re-allotted the site nos.1586 and 1586A each measuring 30 x 60ft. 37 OS No.3095/1981 Thus, his bone of contention is that the said clear admission would go to show that the site allotted to the 2nd defendant is different and distinct and it is no way connected to the suit property. He further argued that on the basis of the said admission, by invoking Order 12 Rule 6 of CPC, the Court can straight away pass the judgment without looking to any other aspect. He further argued that in view of Sec.58 of the Indian Evidence Act, the admission made in judicial proceedings has got more weightage than an admission made in ordinary course. In support of his contention, he has relied on the decisions reported in AIR 1974 MP 75, AIR 2006 Bombay 134, AIR 2010 SC 2077, AIR 1974 SC 471 and AIR 1960 SC 100.
32. On careful reading of the recitals of Ex.C.1 coupled with the version of DW.1 in his cross- examination at page-14 para-12, it is clear that the property alleged to have been allotted to the defendant no.2 is not the suit property and the suit schedule 38 OS No.3095/1981 property is different and distinct property from the property purchased by defendant nos.1 & 2.
33. It is pertinent to note that Ex.D.12 is the entire proceedings i.e., notes sheet pertaining to the present suit property. As per the Order of the Hon'ble High Court of Karnataka the Surveyor attached to the ADLR and Bangalore Development Authority jointly visited the disputed property after giving notice to both the parties and their counsel. The Surveyor i.e., CW.1 has submitted his detailed report and based on the existing facts, CW.1 surveyed the disputed property. In Sl.no.7 of his report at sheet no.3 of Ex.P.25, CW.1 has stated that after perusal of the documents pertaining to reconveyance of Banashankari first stage, he conducted the survey.
34. Ex.D.13 is the vital document i.e., sketch prepared by the Surveyor wherein he has clearly bifurcated the property purchased by Narasimhaiah i.e., the vendor of the plaintiffs and the land purchased by 39 OS No.3095/1981 Ponnuswamy i.e, vendor of the defendant nos.1 & 2. In Ex.D.13 he has clearly shown Ex.D.13A i.e., the present suit schedule property and identified it as it comes within the 4acres of land purchased by the vendor of the plaintiffs Narasimhaiah. Ex.D.13 further corroborates the case of the plaintiffs that the northern portion of Sy.no.3 is purchased by the vendor of the plaintiffs and southern portion is purchased by Ponnuswamy. The surveyor has made clear bifurcation line between the two lands in Ex.D.13. Under these circumstances, it is crystal clear that the land alleged to have been purchased by the defendant no.2 is not the suit property and the suit property is entirely a separate property from that of the property alleged to have been purchased by the defendant no.1 from Ponnuswamy. Hence, I answer Addl.Issue nos.11 & 12 in the affirmative holding that the plaintiffs are the owners of the suit schedule property and they have clear title over the suit property. 40 OS No.3095/1981
35. Issue no.1: The contention of the plaintiffs is that defendant nos.1 & 2 are the tenants in occupation of the suit schedule property on a monthly rent of Rs.120/-. PW.1 i.e., GPA holder of plaintiff nos.1 & 2 in his chief examination at page-5 has stated that the first defendant approached the GPA holder of the plaintiffs and requested him that he had purchased revenue site no.40 and till he occupied the same, to accommodate him as a tenant in property no.1586/A. The plaintiffs have not produced any corroborating material to show that the suit property i.e., 1586/A was let out to the first defendant on a rent of Rs.120/-. But, the fact remains that the plaintiffs are the owners of the entire suit schedule property. Sec.116 of the Indian Evidence Act contemplates that "No person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had title to such possession at the time when such license was given." In the light of the said ingredients of 41 OS No.3095/1981 Sec.116 of the Indian Evidence Act, the defendant nos.1 & 2 cannot deny the title of the plaintiffs and contend that they are in lawful possession and enjoyment of the hind portion of the suit schedule property. Therefore, even if it is considered that the defendant no.1 and after his death the defendant no.2 are in occupation of the hind portion of the suit schedule property not as a tenant, at the most they are the licensees. Hence, I answer Issue no.1 in the negative.
36. Addl.Issue no.5: The first defendant has contended that the suit against the 3rd defendant is not maintainable. It is pertinent to note that the 3rd defendant has not raised any plea that the suit against it is not maintainable. It is further material to note that the 3rd defendant after the acquisition of the entire Sy.3 of Gerehalli village including the suit schedule property, re-allotted/reconveyed the suit land in favour of the plaintiffs by issuing possession certificate collecting the prescribed fee, charges and executed lease cum sale deed 42 OS No.3095/1981 in favour of the plaintiffs. Under these circumstances, the contention raised by the first defendant that the suit against 3rd defendant is not maintainable holds no water. Accordingly I answer Addl. Issue no.5 in the negative.
37. Addl.Issue no.6: Undisputedly the first plaintiff purchased site no.4 and 2nd plaintiff purchased site no.5 i.e., 1586 and 1586A in Sy.no.3 of Gerehalli village from their common vendor Narasimhaiah under Ex.P.24 and P.23 sale deeds both dated 30.3.1961. The top most portion of Ex.D.11 discloses that Sy.no.3 of Gerehalli village has been acquired for the formation of Banashankari 3rd stage vide Final Notification No.HMA 106 MNJ 71 dated 28.10.1971 and further there is a reference in Ex.D.11 that the said survey number comes under re-allotment scheme vide Board Resolution no.651 to 657 dated 6.1.1979 and Board Resolution no.629 dated 21.6.1980. It is pertinent to note that the Board Resolution no.629 is not concerned with the suit schedule property. Ex.D.9 is the Board Resolution of 43 OS No.3095/1981 BDA dated 6.1.1979 and Ex.D.9A is the Resolution no.657 which reads as under:
"Development of area in Srinivasanagar Layout comprising Sy.no.2 to 14, 21 and 22 of Gerehalli, BSK 3rd stage".
The recitals of Ex.D.9A coupled with the observation of the Ex.Engineer, BDA at scanned page no.44 of Ex.D.12 clearly discloses that the suit schedule property site nos.1586 and 1586A for which allotment is made under BSK 3rd stage and the same is now situated in BSK 1st stage. Thus, it is clear that the 3rd defendant acquired Sy.3 of Gerehalli village which also comprises of the suit schedule property. Hence, I answer Addl.Issue no.6 in the affirmative.
38. Addl.Issue no.7 : The 3rd defendant has contended that there is no cause of action to file the suit. Ex.P.16 is the notice dated 9.11.1977 issued by the present plaintiffs to the BDA and Ex.P.18 is another notice dated 21.1.1980 issued by both the plaintiffs to 44 OS No.3095/1981 the BDA requesting the 3rd defendant BDA for reconveyance/re-allotment of the suit schedule property. Thus, it is crystal clear that in the year 1979-80 itself the plaintiffs requested the 3rd defendant for reconveyance of the suit schedule property and they have also contended in the said notice that the defendant nos.1 & 2 are residing at the suit schedule property as tenants from March 1979. The recital of the said notices itself disclose the cause of action to file the suit. Hence, the contention of the defendants that there is no cause of action to file the suit holds no water. Hence, I answer Addl.Issue no.7 in the negative.
39. Addl.Issue no.8 : The specific case of the plaintiffs is that the 3rd defendant after the acquisition has allotted the suit site in favour of the plaintiffs. To corroborate the said contention of the plaintiffs the plaintiffs have produced and got marked Exs.P.16 & P.18. The recitals of the said documents clearly disclose that way back in the year 1977 and 1980 both plaintiffs 45 OS No.3095/1981 moved an application to the 3rd defendant for reconveyance/re-allotment of the suit schedule property by registered post and it is clear from the recitals of Ex.P.17 and P.19 postal AD card and postal receipt. In pursuance of that the plaintiffs in the year 1981 have paid the layout charges to both 1586 and 1586A properties as per Exs.P.3 to P.6. The recitals of Exs.P.7 & P.8 further reveals that the 3rd defendant issued notice to the plaintiffs intimating the allotment of sites i.e., 1586 and 1586A. Ex.P.9 discloses that the plaintiffs have paid value of sites. Ex.P.10 and Ex.P.11(two receipts) further discloses that the defendant no.3 has collected general taxes, building tax and other charges from the GPA holder of the plaintiffs. The recitals of Exs.P.12 & P.13 further disclose that the defendant no.3 made valuation of both the sites per square meter. Ex.P.14 are the two possession certificates issued by the 3rd defendant in favour of the plaintiffs. Ex.P.26 & 27 are the certified copies of the registered lease cum sale agreements 46 OS No.3095/1981 executed by the 3rd defendant in favour of the plaintiffs in respect of the suit property. Thus, the recitals of the aforesaid numerous documents clearly disclose that the 3rd defendant re-allotted/reconveyed the suit schedule property in favour of the plaintiffs. The re- allotment/reconveyance in favour of the plaintiffs by the 3rd defendant is also clear from the recitals of Ex.D.12 proceedings of BDA. That fact is also admitted by the 3rd defendant in para-6 of Ex.D.14 affidavit. Hence, the plaintiffs have established that the 3rd defendant has allotted the suit sites in favour of the plaintiffs. Accordingly I answer Addl.Issue no.8 in the affirmative.
40. Addl.Issue no.9 : According to the defendant nos.1 & 2, the relief of declaration sought in the amended plaint, is barred by limitation. Their contention is that the plaintiffs have amended the relief of declaration, beyond the period of 12years from the date of cause of action and the relief of declaration and possession is not sought within a period of 12years. On careful perusal of 47 OS No.3095/1981 the prayer column of the plaint it discloses that the plaintiffs have sought the relief of possession at para- 11(b) of the plaint at the initial stage itself and they have sought the relief of declaration by filing an amendment application on 5.4.1991 which came to be allowed on 27.1.1994. In the chief examination at page-5 the GPA holder of the plaintiffs has categorically stated that during 1979 the first defendant occupied the suit schedule property. The suit came to be filed on 2.10.1981 within two years from the date of occupation of the property by the defendant nos.1 & 2 and the amendment in respect of declaratory relief was also sought within 12yars from the date of filing of the suit. Therefore, the present suit is not barred by law of limitation as contended by the defendant nos.1 & 2. Hence, I answer this Addl.Issue no.9 in the negative.
41. Addl.Issue no.10: According to the defendant nos.1 & 2, they have perfected their title over the suit schedule property by way of adverse possession. The 48 OS No.3095/1981 defendant nos.1 & 2 have claimed the title over the suit schedule property based on the sale deed. They claim that they are the owners of the suit schedule property by virtue of said sale deed. They do not admit the ownership of the plaintiffs over the suit schedule property. In a decision relied on by the learned Counsel appearing for the plaintiffs reported in AIR 1979 SC 2930, the Hon'ble Apex Court at page 2932 has held as under :
Apart from actual and continuous possession which are other ingredients of adverse possession, there should be necessary animus on the part of the person who intends to perfect his title by adverse possession. A person who under the bonafide belief thinks that the property belongs to him and as such he has been in possession, such possession cannot at all be adverse possession because it lacks necessary animus for perfecting tile by adverse possession. "
In the instant case the defendant nos.1 & 2 claim that they are the owners of the suit schedule property and it belongs to them. Therefore, they do not admit the ownership of the plaintiffs. Hence, the animus is lacking.
The defendants are not entitled for the relief of adverse 49 OS No.3095/1981 possession. Hence, answer Addl.issue No.10 in the negative.
42. Addl.Issue no.13 : The contention of the defendant no.2 is that there are five sons and two daughters to the plaintiff no.2 Smt.Swarnamba. Even then only three sons and grand sons are brought on record as LRs of plaintiff no.2. Since there are other legal representatives of plaintiff no.2 who are not brought on record, the suit filed by the plaintiffs is liable to be rejected. No doubt, in the cross-examination at page-2, PW.1 has admitted that Smt.Swarnamba died leaving behind two daughters and five sons. No doubt all the legal heirs of 2nd plaintiff are not brought on record. The learned Counsel appearing for the plaintiffs relied on the decisions reported in AIR 1968 Orissa 230, AIR 1984 Orissa 86, AIR 1977 SC 1599, AIR 1976 SC 2335. In the light of the ratio laid down in the aforesaid decisions, he argued that even in the absence of all co-sharers the suit is maintainable. In the decision reported in AIR 1984 50 OS No.3095/1981 Orissa 86, the Hon'ble High Court of Orissa has held as under:
"(B) Transfer of Property Act (4 of 1882), S.108 - Suit for declaration of title and possession - One of co-sharers not impleaded - Defendants found to have no right, title over suit property - Suit competent even in absence of all co-
sharers as it would ensue to benefit of all co-sharers."
AIR 1977 SC 1599 at para-7 the Hon'ble Apex Court has held as under:
"This Court, n Sri Ram Pasricha, clarified that a co-owner is as much an owner of the entire property as any sole owner of the property is: "Jurisprudentially, it is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property."
In the light of the ratio laid down in the decisions of the Hon'ble High Court of Orissa and Hon'ble Apex Court, merely because all the legal heirs of deceased plaintiff no.2 are not brought on record, it cannot be held that the suit is not maintainable. More so, when one of her son 51 OS No.3095/1981 is prosecuting the matter. Hence, I answer this issue in the negative.
43. Issue no.3: On careful perusal of prayer column at para-11(d) of the plaint, it discloses that the plaintiffs have deleted the prayer for injunction restraining the 3rd defendant from reconveying the suit schedule property in favour of defendant nos.1 & 2 and therefore, the said issue does not survive for consideration.
44. Issue no.2: In view of my foregoing discussion, the plaintiffs have established that they are the absolute owners of the suit schedule property and the material placed before this Court clearly discloses that the defendant no.2 is in unauthorized possession and enjoyment of the hind portion of suit schedule property. The defendant no.1 & 2 have failed to establish any right, title or interest over the suit schedule property. Under these circumstances, the plaintiffs being the owners of the suit schedule property, since defendant no.3 has re- allotted/reconveyed the suit schedule property in favour 52 OS No.3095/1981 of the plaintiffs,plaintiffs are entitled for vacant possession of the suit schedule property. Since the plaintiffs being the absolute owners of the suit schedule property, it is immaterial to adjudicate who put up the structure over the hind portion of the suit schedule property. Therefore, this Court is of the opinion that the plaintiffs are the absolute owners of the suit schedule property and they are entitled for vacant possession of the suit schedule property. Since the defendant no.2 has failed to establish her right over the suit schedule property, she has no right to induct any person in the suit schedule property to defeat the claim of the plaintiffs. Accordingly I answer Issue no.2 in the affirmative.
45. Issue No.4 : In the result, I proceed to pass the following :
ORDER The suit of the plaintiffs is decreed.53 OS No.3095/1981
It is declared that the plaintiffs are the absolute owners of the suit schedule property.
The defendant no.2 shall quit, vacate and deliver the vacant possession of the suit schedule property to the plaintiffs within three months from the date of this Order.
It is further directed that defendant no.2 shall not induct any person in the suit schedule property to defeat the claims of the plaintiffs.
The parties shall bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in open Court on this the 13th day of March 2015).
(RAVI M.NAIK), I Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF PW.1 K.Krishnaiah PW.2 D.V.Chandrashekharaiah pW.3 Dwarakanath PW.4 K.R.Mukunda 54 OS No.3095/1981 LIST OF DOCUMENTS MARKED FOR PLAINTIFF Exs.P-1&2 Power of Attorney " P-3 Receipt " P-4 Receipt " P-5 Receipt " P-6 Receipt " P-7& 8 Notice " p.9 Receipt " p.10 Assessment " p.11 Receipt " p.12 & 13 Letter & Allotment " p.14 & 15 Possession Certificates " p.16 Certified Copy of Notice " p.17 Acknowledgment " p.18 Copy of Notice " p.19 Postal receipt " p.20 Certified Copy of GPA " p. 20(a) Description of properties " p.21 & 22 GPA's " p.23 &24 Certified copy of the sale deeds dated 30-3-
1961
" p.25 Commission sketch
" p.26 &27 Certified copy of two registered Lease cum
Sale agreement dated 6.6.1983
" p.28 Copy of application in u/sec.151 CPC in
W.p.No.45252/2013
" p.29 Photo
" p.30 Memo
" p.31 Photograph
LIST OF WITNESSES EXAMINED FOR DEFENDANTS DW.1 T.Mariyanna DW.2 Satish Babu H.S. LIST OF DOCUMENTS MARKED FOR DEFENDANTS Exs.D-1 Photograph 55 OS No.3095/1981 " D-2 Intimation " D-3 Letter " D-4 Certified copy of sale agreement " D-5 Lease cum sale agreement " D-6 Acknowledgement " D-7 Certified copy of Re-allotment intimation " D-8 Certified copy of Re-allotment intimation " D-9 Resolution " D-9A Resolution no.657 " D-10 Resolution no.629 " D-11 Surveyor Report " D-12 Notes sheet " D-13 Sketch " D-14 Counter Affidavit filed before Hon'ble Apex Court " D-15 Khata Certificate " D-16 Khata Extract " D-17 Tax paid receipt List of Court Witnesses:
CW.1 V.Jayaramu List of Documents marked on behalf of Court Witness:
Ex.C.1 Original sketch
Ex.C.1(a) Signature of witness
Ex.C.1(b) Relevant portion of Ex.C.1
Ex.C.2 P.T.Sheet
Ex.C.2(a) Relevant portion
Ex.C.3 Layout plan
Ex.C.4 Blue print of layout plan
Ex.C.5 Copy of Sketch furnished by BDA
Ex.C.6 & 7 Letters
Ex.C.6(a) & 7(a) Signatures
(RAVI M. NAIK),
I Addl.City Civil & Sessions Judge,
Bangalore.
56 OS No.3095/1981
57 OS No.3095/1981