Bangalore District Court
Sri Hemanna vs The Pattanagere Group Village on 12 October, 2017
C.R.P. 67) Govt. Of Karnataka
Form
No.9(Civil)
Title sheet
for
Judgment in
Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF XVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY.
(CCH.NO.12)
PRESENT : SRI R.Y. SHASHIDHARA,
B.Com.,LL.B.,
XVI ADDL. CITY CIVIL &
SESSIONS JUDGE,
BENGALURU CITY.
DATED THIS 12TH OCTOBER, 2017.
ORIGINAL SUIT NO. 6490/1998
*****
PLAINTIFFS: 1. Sri Hemanna,
S/o Govindappa,
Aged about 72 years,
No.4, Nayandanahali village & Post,
Mysore Road, Bangalore-560 039.
Since deceased by his LRs.,
a) Smt. Kamalamma W/o Hemanna,
Major (Deleted since expired as per
Order dated: 21-11-2014)
b) Smt. Gangamma W/o Hemanna,
Major.
c) Smt. Shanthamma, D/o Hemanna,
Major.
d) Smt. Jayamma, D/o Hemanna,
Major.
e) Sri Lakshminarayana S/o Hemanna,
Major.
f) Sri Suryanarayana S/o Hemanna,
Major.
2 OS No. 6490/1998
g) Sri Varadaraju Grand son of
Hemanna, Major.
h) Sri Balakrishna grand son of
Hemanna, Major.
(By Sri Lakshminarayana, Advocate-
party in person-plaintiff No.1(e) and on
behalf of other plaintffs.
- Vs -
DEFENDANTS: 1. The Pattanagere Group Village
Panchayath,
Bangalore South Taluk, Kengeri Hobli,
having its office at Pantharapalya village,
Mysore road, Bangalore-39.
By its Secrretary,
Now the CMC, Rajarajeswarinagar,
Bangalore,
Represented by its Commissioner.
2. Sri Ramakrishnappa,
S/o Annayappa, Major.
Since deceased by Lrs.,
2a. Smt. Padmamma,
W/o Late Ramakrishnappa,
Major in age.
2b. Sri Jagadish, S/o Late Ramakrishnappa,
Major in age.
2c. Sri R. Ravi Kumar,
S/o Late Ramakrishnappa, Major.
All are residing at Sy.No.1,
Pantharapalya, Nayandahalli Post,
Next to Old Govt. School,
Mysore road, Bangalore-39.
3. Narayanappa S/o Annayappa,
Major, Since dead by Lrs:
3 OS No. 6490/1998
3a. Smt. Savithramma,
W/o Late Narayanappa, Major in age.
3b. Santhosh Kumar @ Appi
s/o Late Narayanappa, Major in age.
4. Smt. Kempamma,
W/o Krishnappa, Major.
5. Sri Pyarejan, S/o Ibusab,
Major. Since dead by is Lrs:
5a. Smt. Haseena D/o Late Pyarejan,
Major in age.
6. Roopa D/o Late Byrappa, Major.
7. Begum Jan, Major,
Since deceased by Lrs:
7a. Munna, S/o Begum Jan,
Major in age.
8. Mariyachari, S/o Venkatachari,
Major. Since deceased by Lrs:
8a. Smt. Lalithamma, W/o Late Mariyachari,
Major, R/at Sy.No.1, Pantharapalya
Village, nearby Old Government School,
Nayandahalli Post, Bangalore-39.
8b. Smt. Sumitra, D/o Late Mariyachari,
Major, R/at No.49, Metro Layout,
Nayandahalli, Mysore Road,
Bangalore-39.
8c. Smt. Narasamma,
D/o Late Mariyachari, Major,
R/at No.49-A, Metro Layout,
Nayandahalli, Mysore Road,
Bangalore-39.
9. Shanthappa, S/o Chorappa, Major.
10. Sonnamma W/o Monchaiah, Major.
4 OS No. 6490/1998
11. Sonnappa, S/o Basappa, Major.
Since dead by Lrs.
11a. Basavaraju S/o Late Sonnappa,
Major in age.
11b. Channajamma D/o Sonnappa,
Major in age.
11c. Nanjamma W/o predeceased son of
Late Sonnappa, Major in age.
11d. Raju @ Dodda S/o Late Sonnappa,
Major in age.
12. Venkataswamy S/o Thimmaiah, Major.
13. Smt. Ningamma W/o Late Mariyappa,
Major.
14. Kariyappa S/o Late Mariyappa,
Major, Since dead by Lrs.
14a. Renukamma W/o Late Kariyappa,
Major in age.
14b. Manjunatha Brother of late Kariyappa,
Major in age.
15. Dundamma, W/o Ramanna, Major.
16. Boraiah S/o Jogappa, Major.
Since dead by Lrs:
16a. Smt. Jayamma D/o Late Boraiah,
Major in age,
Near Sri Manjunatha floorings,
4th Main road, Pantharapalya,
Nayandahalli Post, Mysore Road,
Bengaluru - 560 039.
16b. Sri Puttaswamy S/o Late Boraiah,
Major in age.
5 OS No. 6490/1998
Near Sri Aswathappa building,
Pantharapalya,
Nayandahalli Post, Mysore Road,
Bengaluru - 560 039.
16c. Smt.Nagamma @ Nagarathnamma,
Daughter-in-law of late Boraiah,
W/o predeceased son (Naganna) of
Late Boraiah.
16d. Kumari Swethaa, Grand daughter of
Late Boraiah, Since Minor represented by
her natural guardian mother Smt.
Nagamma @ Nagarathnamma.
Residing at plaint schedule property,
Pantharapalya,
Nayandahalli Post, Mysore Road,
Bengaluru - 560 039.
16e. Sri Chandra @ Chandrashekara,
S/o late Boraiah, Major in age.
Near Sri Manjunatha floorings,
4th Main road, Pantharapalya,
Nayandahalli Post, Mysore Road,
Bengaluru - 560 039.
Defendants 2 to 16 are residents of
Pantharapalya, Nayandahalli Post,
Mysore Road, Bengaluru - 560 039.
17. The State of Karnataka,
Rep. by its Chief Secretary,
Vidhana Soudha, Ambedkar Veedhi,
Bangalore - 01.
18. The Secretary,
Dept. of Primary Education,
Multi-storied building,
Ambedkar Veedhi, Bangalore-01.
19. The Commissioner of Public Instructions,
Nrupathunga road, Bangalore-01.
6 OS No. 6490/1998
20. The Block Education Officer,
South Zone -I, B.P. Wadia Road,
Basavanagudi,
Bangalore-04.
(For D-1 by Sri A.I., Advocate)
(For D-2 to 16 by Sri P.K., Advocate)
(L.Rs of D-11(a) & (b) placed Exparte)
(For D-17 to 20 by D.G.P.)
(For L.Rs.16(a) to (d) by Sri K.P.P.,
Advocate)
Date of institution of the suit 21-8-1998
Nature of the suit: Possession and mandatory
injunction.
Date of the commencement of 17-11-2005
recording of the evidence:
Date on which the Judgment was 12-10-2017
pronounced
Total duration Year/s Month/s Day/s
19 01 21
JUDGMENT
This suit is filed by the plaintiffs for judgment and decree directing the defendants to deliver the possession of the respective portion in their occupation. Issue direction to the defendants by way of mandatory injunction to demolish the structure put by them on the suit land, if they failed to demolish the said structure it may be demolish the same by way of appointing Court Commissioner.
7 OS No. 6490/1998
2. It is seen from the records that originally this suit filed by one Hemanna S/o Govindappa. During the pendency of the suit he is reported to be dead. Hence, his legal representatives were brought on record as plaintiff No.1(a) to 1(g).
3. In the plaint it is stated that the suit schedule property involved in this case is landed property bearing Sy.No.1 measuring 30 guntas situated at Pantharapalya village, Kengeri hobli, Bangalore South Taluk. Originally said land belonged to one Chunchaiah. He sold the same to one Ramaiah @ Peripullappa. Said Ramaiah @ Peripullappa in turn sold the said land in favour of original plaintiff - Hemanna through registered sale deeds dated 11-7-1959 and 19-8- 1959. From the said purchase Hemanna put into possession of the suit land. Hence, Hemanna was absolute owner, in possession and enjoyment of the suit schedule property.
4. It is further stated that the suit schedule land was situated in a Jodi village. By virtue of enactment of Mysore Personal and Miscellaneous Inams Abolition Act, 1954 said land vested in the Government. The plaintiff Hemanna had filed application to the appropriate authority for being 8 OS No. 6490/1998 registered as an occupant of the suit land that he had purchased and was in possession and enjoyment of the said land. On 27-11-1970 the Special Deputy Commissioner for Inam Abolition, Bangalore passed an order and registered the suit land in favour of the plaintiff Hemanna as an occupant. Said order was challenged by the defendant No.1 (Pattanagere Group Village Panchayath) which was dismissed. It is stated that the plaintiff Hemanna had paid tax to the suit land.
5. It is further stated that the defendant No.1 was initiated steps for acquisition of suit land. Due to objection from the plaintiff Hemanna said acquisition proceedings were not proceeded. The defendant No.1 claiming that suit land is Government land and made an attempt to take possession of the same by force. During that time plaintiff - Hemanna had filed OS No.33/1971 and sought for declaration of title. He also sought for permanent injunction restraining the defendant No.1 from interfering in his possession and enjoyment of the suit land. Said OS 33/1971 was dismissed on merits. The plaintiff - Hemanna had preferred an appeal in RA No.73/1978 before Prl. City Civil Judge, Bangalore District. Said appeal was allowed and Judgment of the Trial Court was set aside and the case was remanded to the Trial Court for fresh 9 OS No. 6490/1998 disposal. Accordingly after remand OS 33/1971 it was transferred to the City Civil Court and renumbered as OS 236/1980.
6. It is further stated that in OS 236/1980 additional issues framed that what is the extent of land in Sy.No.1 ? and whether the plaintiff proves that 30 guntas of land claimed by him is comprised in Sy.No.1 ? After giving opportunity to both the parties, after considering the oral and documentary evidence, the Court granted decree that the plaintiff - Hemanna is owner of the suit schedule property. As against said Judgment the defendant No.2-Panchayath had preferred RFA No.753/1988 before Hon'ble High Court of Karnataka. Said appeal was dismissed as being not pressed.
7. It is further stated that in OS 236/1980 the Court held that the plaintiff-Hemanna has become the owner of the suit schedule land which originally belonged to Chunchaiah. It is also held that the suit schedule land is situated in Sy.No.1, occupancy right granted in favour of the plaintiff formed part of Sy.No.1.
8. It is further held in the said judgment that the defendant No.1 taking advantage of the dismissal of the suit OS 33/1971 10 OS No. 6490/1998 and encroached upon the suit land. It is further held that houses had been put up by the allottees of all the sites formed in the suit land subsequent to the dismissal of the said suit. It is further stated that the defendant No.1 had not acquired the suit land in due process of law, he has not produced any documents to show that portion of land in Sy.No.1 was gramatana land belonging to it. There is no record to show that any portion of Sy.No.1 was Government land. It was further held that there are no reasons to disbelieve the evidence of the plaintiff that he was in lawful possession of the suit property as on the date of the suit, he was subsequently dispossessed from the suit land by the defendant No.1 after dismissal of the suit by the II Munsiff's Court. It is stated that in the course of judgment the Court while dealing with the application seeking for relief of amendment of the plaint in respect of portion of the suit property held that the plaintiff could file a separate suit for the relief of possession.
9. It is stated that during the pendency of the suit the defendant No.1 claiming to be owner of the suit schedule land, allotted the sites in favour of defendants 2 to 16. Now the defendants 2 to 16 are in possession of pieces of land in the suit schedule property tracing their title to the defendant No.1. 11 OS No. 6490/1998 It is stated that the defendant No.1 or defendants 2 to 16 cannot claim right over the suit schedule land. They are bound to deliver the possession of the same to the plaintiff. It is stated that title of the plaintiff to the suit schedule property has been established in OS 236/1980 and it is binding on the defendants.
10. It is further stated that claim against the defendant No.17 to 20 for possession of the land only to the extent of East to West 51 feet and North to South 22 feet, which is well within the boundaries of the suit schedule property. The defendant No.1 with high handed and malafide motive has parted the above said portion of the land to the defendant No.17 to 20. The defendant No.17 to 20 have put up construction of building illegally. They have no right, title or interest to the extent of above said land which is part and parcel of the suit schedule property. The said construction is independent in nature without any annexed to the old school building. The plaintiff got issued notice to the defendant No.17 to 20 prior to filing of the suit.
11. It is stated that the defendant No.1 has preferred an appeal and filed I.A. for stay the operation of the judgment 12 OS No. 6490/1998 and decree passed in OS 236/1980. Hon'ble High Court granted stay. But said appeal dismissed on 28-8-1997. It is stated that the plaintiff was prevented by virtue of the interim order passed in said appeal (RFA No.753/1988) for taking any steps against the defendant to recover the possession of the suit land. The defendants are not entitled to hold or to continue in possession of the suit schedule property. In spite of repeated request they did not handed over the possession of the suit schedule property to the plaintiffs. Hence, the plaintiffs constrained to file this suit for possession of the suit schedule property on the basis of the title having been established. Cause of action arose to file this suit on 28-8- 1997 with the dismissal of RFA 753/1988 and automatic annulling of interim order passed in the said case. Hence, the plaintiffs constrained to file this suit and prayed for decree.
12. After service of suit summons all the defendants have appeared through their counsels and resisted the case of the plaintiff by way filing written statement. As per records during pendency of the case, on the basis of application filed the plaintiff, on 13-10-2006 this court passed order and impleaded the defendant No.17 to 20.
13 OS No. 6490/1998
13. The defendant No.1 in the written statement stated as follows :-
The suit of the plaintiff is not maintainable against the defendant No.1 as the said defendant No.1 is not existed at the time of filing of the suit. Previously Village Panchayath of Pattanagere was existed and in view of abolition of panchayath under KMC Act the said Panchayath coming under the jurisdiction of Sarakki Notified Area Committee. Thereafter it is coming under CMC Pattanagere. It is stated that suit schedule property belonged to one Chunchaiah and he sold the same in favour of one Ramaiah @ Perupullappa, who in turn sold the same to the plaintiff - Hemanna through sale deeds dated 11-7-1959and 19-8-1959 is not known to the defendant No.1. The plaintiff is put to strict proof of the same. It is stated that the contents of para 3 to 8 of the plaint are not known to the defendant No.1. The plaintiff is put to strict proof of the same.
14. It is stated that the defendant No.2 to 16 are in possession and enjoyment of the suit schedule property by way of constructing residential premises with their respective portion and they are living in the said houses. As per CMC records the defendant No.2 to 16 have got khatha in their 14 OS No. 6490/1998 names and paying taxes. Their houses situated in gramatana of Pantharapalya, Mysore road, Bangalore City. It is stated that there is no cause of action arose to file this suit against the defendant No.1 because no relief prayed against him. The plaintiff has not issued notice to the defendant No.1 under Section 284 of KMC Act prior to filing of the suit. The plaintiff has not valued the suit schedule property and paid proper Court fee. The suit of the plaintiff is bad for mis-joinder of parties and non-joinder of necessary parties. The plaintiff is not entitled any reliefs as prayed in the suit. On the above said grounds the defendant No.1 prayed for dismissal of this suit.
15. The defendant No.2, 3, 4, 5, 8, 10, 11, 12, 13, 15 and 16 have filed written statement. The other defendants have filed memo and adopted the same.
16. The defendant No.2 to 16 in the written statement stated as follows :-
The suit of the plaintiff is not maintainable and he is not entitled for the reliefs as prayed in the suit. The plaintiff sought for delivery of possession of the suit schedule property without stating that which are the respective portions are in 15 OS No. 6490/1998 the possession and enjoyment of the defendant No.2 to 16. The plaintiff has not furnished description and boundaries in respect of properties of defendants 2 to 16. Because he prayed for demolition of the above said constructions of the defendants 2 to 16.
17. It is stated that the defendants are in possession and enjoyment of the residential premises which are built by them, later on assigned with Sarakki Notified Area Committee and then assigned as CMC. The said properties of defendants 2 to 16 are situated in new gramatana of Pantharapalya, Mysore road, Bangalore City.
18. It is stated that the defendants 2 to 16 are in possession and enjoyment of their properties including their family members, ancestors since last more than 50 years from the date of filing of this suit. Their properties are coming under new gramatana measuring 2 acres 22 guntas which has been earmarked by survey authority. Earlier said properties vested with Inam village in the State. By taking into consideration of actual situation, existing construction, possession and enjoyment of the same by these defendants and their predecessors, under Section 3 of the Karnataka ( P & M) Inam 16 OS No. 6490/1998 Abolition Act, 1954, the said land vested in the State. Said village has been recognized by the Revenue department and also survey authorities. There are several buildings and temple and residential building in the new gramatana area of 2 acres 22 guntas. Now the suit land has lost all characteristics of agricultural land.
19. It is stated that taking into consideration that the defendants 2 to 16 are in possession and enjoyment of the properties with construction thereon, the revenue department formed a layout of plots as far back as in the year 1973, without disturbing the possession and enjoyment of the defendants 2 to 16 lying in the new gramatana and distributed and allotted the plots by recognizing their possession and enjoyment. All the persons constructed houses in the said property which are belongs to weaker sections of the society. Accordingly possession certificate issued to the defendants 2 to 16 on 10-8-1973. Accordingly these defendants are in possession and enjoyment of their property. Panchayath also issued necessary permission to them for development of their properties by putting up additional construction. Pattanagere Panchayath has also recognized these defendants and others as khathedars and owners of their respective properties and 17 OS No. 6490/1998 they have assessed property tax. The properties of the defendants are within the jurisdiction of Sarakki Notified Area Committee functioning under Karnataka Municipalities Act 1964. These defendants also paying tax to the CMC Pattanagere and the said authority has been provided with all the civic amenities. It is stated that the defendants 2 to 16 are in possession and enjoyment of their portion lying in new gramatana for the last many decades is without any kind of interference or interruption by any person and much less by the plaintiff or by the Government agencies or by the local municipal authorities.
20. It is denied that the suit property belonged to one Chunchaiah and he sold the same in favour of Ramaiah @ Peripullappa. It is denied that said Peripullappa sold the suit schedule property in favour of the plaintiff under alleged sale deeds dated 11-7-1959 and 19-8-1959. It is stated that the plaintiff was never in possession of the said property. The vendor of the plaintiff had no title and possession over the said property. It is denied that the plaintiff become owner, in possession and enjoyment of the suit schedule property. 18 OS No. 6490/1998
21. It is stated that in Sy.No.1 measuring 30 guntas of land registered occupancy rights in favour of the plaintiff. But no khatha and mutation effected in favour of the plaintiff. The Revenue authorities have never recognized the plaintiff as a khathedar and in possession of the said land. The land claimed by the plaintiff had lost the characteristic of agricultural land. The plaintiff was never in possession of the suit schedule property. He has never raised any objection or interfered with the possession and enjoyment of the construction of the defendants 2 to 16. It is stated that in OS 33/1971 and RFA 573/1998 the defendants 2 to 16 are not parties, any judgment and decree passed in the above said proceedings is not binding on them.
22. It is denied that the defendant No.1 has encroached the suit schedule land. It is denied that after dismissal of the suit in OS 33/1971 the defendants 2 to 16 have put up construction. These defendants have put up construction in the property which is coming within the jurisdiction of revenue authorities. The revenue authorities have made the layout of plots and the defendants were recognized as the persons in possession and enjoyment of their respective properties. These defendants are constructed and in possession and 19 OS No. 6490/1998 enjoyment of the suit properties since their ancestors and prior to filing of OS 33/1971.
23. It is stated that civil proceedings initiated by the plaintiff are not within the knowledge of these defendants because they are not impleaded in the said proceedings. The plaintiff has no legal right to seek the possession of the portion of the properties which are in possession and enjoyment of these defendants.
24. It is stated that in OS 236/1980 the plaintiff have filed application under Order 6 rule 17 for amendment of plaint and the said application has been rejected on 9-4-1984. It was holding that the said application was barred by limitation. Thereafter the plaintiff filed another application for impleading certain persons in the suit. The said application also rejected. The plaintiffs suppressed the said fact and filed this suit. The plaintiff has lost his right under Section 27 of the Limitation Act. There is no cause of action arose to file this suit. The suit of the plaintiff is hopelessly barred by limitation. It is stated that the suit of the plaintiff for possession is not maintainable without seeking a relief of declaration. The defendants have perfected their right, title, interest and 20 OS No. 6490/1998 possession over their portion by way of adverse possession. It is stated that description and boundaries of the suit schedule property are denied by these defendants. The plaintiff is claiming new gramatana where there are innumerable constructions by mis-describing the same as the one as described in the suit schedule property. It is stated that the situation of the suit schedule property will be clear if proper Court Commissioner appointed. From the above said grounds the defendants 2 to 16 are prayed for dismissal of the suit of the plaintiff with costs.
25. The defendant No.16(c) and 16(d) have filed written statement and stated as follows :-
It is stated that they have adopted the written statement filed by the defendant No.2,3,4,5,8,10,11,12,13,15 and 16. It is stated that defendant No.16 Boraiah is the father-in-law of defendant No.16(c). During his life time he has executed registered Gift deed on 21-5-2011 bequeathing site No.45. Accordingly khatha has been effected in their name. The Municipal authorities have assessed the said property tax and they are paying tax. It is stated that the defendant No.16(c) and 16(d) have been exercised their right, 21 OS No. 6490/1998 title, interest and possession over the said site as absolute owners.
26. It is stated that the defendant No.16(c) and 16(d) and their ancestors have been in possession and enjoyment of the site No.45. The plaintiff has no manner of right, title and interest over the same. With an intention of depriving the rights of these defendants the plaintiff filed this false suit. In the absence of relief of declaration the suit filed by the plaintiff for possession is not maintainable. Therefore, the defendant No.16(c) and 16(d) prayed for dismissal of this suit.
27. The defendant No.17 to 20 have filed written statement and stated as follows :-
It is denied the averments of para 2 of the plaint. The plaintiff is strict proof of the same. It is stated that the application filed by the plaintiff for re-grant of land bearing Sy.No.1 of Pantharapalya village measuring 30 guntas has been rejected by the concerned authorities. When such being the case the question of order being passed by the Deputy Commissioner, Inam Abolition and registering the name of the plaintiff - Hemanna as an occupant, filing of appeal before the Karnataka Appellate Authority are make believe story to knock 22 OS No. 6490/1998 off the valuable land. It is stated that these defendants are nothing to do with the suit filed in OS No.33/1971 and RFA 73/1978. Said suit was filed against the defendant No.1. Hence, the said order not binding on these defendants. It is stated that the plaintiffs sought for deliver the possession from these defendants 17 to 20 without mentioning the boundaries.
28. It is stated that the defendants 17 to 20 are in possession of land measuring to an extent of 100 x 55 feet of property bearing No.200 situated at Pantharapalya village. Government Higher Primary school is running for the past 45 years in the said property. About 331 poor students are studying from Class-1 to 7. These defendants are in possession of the said land which is recognized by the defendant No.1.
29. It is denied that the suit schedule land belong to one Chunchaiah and he sold the same in favour of Ramaiah @ Peripullappa. It is denied that said Ramaiah @ Peripullappa in turn sold the same in favour of the plaintiff under registered sale deeds. It is stated that valuation of court fee made by the plaintiff to the suit property is not correct. This suit is bad 23 OS No. 6490/1998 for want of prior notice to the defendants. From the above said grounds the defendants 17 to 20 prayed for dismissal of the suit of the plaintiff with exemplary costs.
30. It is seen from the records that during the pendency of the suit the defendant No.2, 3, 7, 8, 11, 14 and 16 are reported to be dead. Their L.Rs brought on record as defendant No.2(a) to (c), defendant No.3(a) and (b), defendant No.7(a), defendant No.8(a) to (c), defendant No.11(a) to (d), defendant No.14(a) and (b), defendant No.16(a) to (e).
31. On the basis of the above said pleadings my learned Predecessor has framed the following issues and additional issues:-
1. Whether the plaintiff proves that his title to the suit schedule property ?
2. Whether the plaintiff proves that the 1st defendant encroached upon the suit schedule property, taking advantage of the dismissal of the plaintiff's suit OS No.33/1971 ?
3. Whether the plaintiff proves that City Civil Court, in OS 33/1971 (renumbered as O.S.236/1980) declared that the plaintiff had become the owner of the land which originally belongs to Sri Chunchaiah ?24 OS No. 6490/1998
4. Whether the plaintiff proves that during the pendency of the above proceedings, the 1st defendant allotted sites in favour of the defendants 2 to 16 ?
5. Whether the plaintiff is entitled to directions to the defendants to deliver possession of the respective portion in their occupation by demolishing the existing structure on the plaintiff ?
6. Whether the suit property is not identifiable in view of innumerable construction as averred in the written statement of the defendant ?
7. Whether the plaintiff ahs lost his right by virtue of Section 27 of the Limitaiton Act ?
ADDITIONAL ISSUES DATED: 14-7-2008
1. Whether the suit against defendants 17 to 20 is bad for want of prior statutory notice under Sec.80 C.P.C. ?
2. Whether the suit is properly valued and Court fee paid is sufficient ?
ADDITIONAL ISSUE FRAMED AS PER ORDER DATED 30-07-2009 3. Whether the defendant Nos.2 to 16 prove that they have perfected their right by adverse possession over the suit property as contended in paragraph 19 of their written statement ?
32. To prove the above said issues plaintiff No.1(c) - Lakshminarayana examined himself as PW.1. Documents got 25 OS No. 6490/1998 marked as per Ex.P-1 to P-41. The defendant No.12 examined himself as DW.1. Documents got marked as per Ex.D-1 to D-181. Block Development Officer of defendant No.20 examined as DW.2. Documents got marked as per Ex.D-183 to D-190. The defendant No.17 to 20 side examined two witnesses as DW.3 and DW.4. After completion of evidence of both side the case posted for arguments on main.
33. Heard the arguments.
34. My answer to the above issues and additional issues are as follows:-
ISSUE NO.1 : In the affirmative
ISSUE NO.2 : In the affirmative
ISSUE NO.3 : In the affirmative
ISSUE NO.4 : In the affirmative
ISSUE NO.5 : In the negative
ISSUE NO.6 : In the negative
ISSUE NO.7 : In the affirmative
ADDITONAL ISSUE : In the negative
NO.1
ADDITONAL ISSUE : In the negative
NO.2
ADDITIONAL ISSUE : In the negative
NO.3
26 OS No. 6490/1998
REASONS
35. ISSUE NO.1 AND 3:- These two issues are inter- connected. Hence, for the purpose of avoiding repeated discussion, I have taken up these two issues together for consideration.
PW.1 is the plaintiff No.1(c) of the case. In his examination-in-chief has reiterated the averments of the plaint and stated that his father Sri Hemanna was the absolute owner in possession of the suit schedule property. He further deposed that Sy.No.1 of Pantharapalya village 13 guntas of land (suit schedule property) belonged to one Chunchaiah. Said Chunchaiah sold the suit schedule property in favour of one Ramaiah @ Peripullappa. On 11-7- 1959 and 19-8-1959 said Ramaiah @ Peripullappa sold the suit schedule property in favour of plaintiff - Hemanna through registered sale deeds. The plaintiff was put in possession of the suit schedule property. Therefore, plaintiff
- Hemanna was absolute and sole owner of the suit schedule land.
36. In the plaint and in examination-in-chief of PW.1 it is further stated that the suit schedule property/land was 27 OS No. 6490/1998 situated in a Jodi village and with an enactment of Mysore Personal and Miscellaneous Inams Abolition Act, 1954, it was vested in the Government. The plaintiff Hemanna had filed application for registration of occupancy right that he had purchased and was in possession and enjoyment of the said land. Accordingly on 27-11-1970 the Special Deputy Commissioner for Inam Abolition, Bangalore passed an order and registered the suit land in favour of the plaintiff Hemanna as an occupant. It is further stated that as against the said order the defendant No.1 had preferred an appeal and it was dismissed. It is further stated that the plaintiff Hemanna had paid tax to the suit land.
37. To prove the above said fact the plaintiff has produced several documents and got marked in evidence. He has produced registered sale deed dated 6-2-1057 and got marked as Ex.P-1. It reveals that one Chunchaiah S/o Chunchappa sold the land in favour of Ramaiah @ Peripullappa S/o Muniyellappa. The possession of the land handed over to Ramaiah @ Peripullappa on the date of sale deed itself. Accordingly ' hatthu seru beejavariulla' ( ºÀvÀÄÛ ¸ÉÃgÀÄ ©ÃeÁªÀjªÀżÀî ) land sold through said sale deed. The boundaries to the said land mentioned in the said sale deed.
28 OS No. 6490/1998
38. Ex.P-2 is the registered sale deed dated 11-7-1959. It revels that the above said Ramaiah @ Peripullappa sold northern half portion of land purchased by him through Ex.P-1 in favour of the plaintiff Hemanna. Accordingly he sold 'aidu seru beejavariulla' ( LzÀÄ ¸ÉÃgÀÄ ©ÃeÁªÀjªÀżÀî ) land in favour of the plaintiff. Boundaries to the said land mentioned in the said sale deed.
39. Ex.P-3 is the registered sale deed dated 19-9-1959. It reveals that Sri Ramaiah @ Peripullappa sold remaining southern half portion of the land in favour of plaintiff - Hemanna. Accordingly he sold 'aidu seru beejavariulla' ( LzÀÄ ¸ÉÃgÀÄ ©ÃeÁªÀjªÀżÀî ) land in favour of the plaintiff - Hemanna. Boundaries to the said land mentioned in the sale deed. It is further reveals from Ex.P-2 and Ex.P-3 that the possession of the land handed over to the plaintiff - Hemanna at the time of execution of sale deeds.
40. Ex.P-4 is the sale deed dated 29-8-1934 executed by Hanumaiah S/o Lingappa and Muddaiah S/o Lingappa in favour of Chunchappa @ Chundappa. Boundaries to the said land mentioned in the sale deed. Possession of the said land handed over to Chunchappa S/o Shunchappa. I am of the 29 OS No. 6490/1998 opinion that Chunchappa S/o Chunchappa purchased the land as per Ex.P-4 and then sold the same in favour of Ramaiah @ Peripullappa vide Ex.P-1. Then said Ramaiah @ Peripullappa sold the said land in favour of plaintiff through two registered sale deed at Ex.P-2 and Ex.P-3. From perusal of boundaries mentioned in the above said Ex.P-1 to P-4 - sale deeds which are one and the same. The plaintiff also produced typed copy of Ex.P-1 to P-4 which is not marked. Ex.P-5, P-6 and P-7 are the tax paid receipts dated 19-2-1960, 13-8-1959 and 9-2- 1969 respectively which are in the name of the plaintiff - Hemanna. Ex.P-8 is another tax paid receipt dated 19-8-1959 which is in the name of Ramaiah @ Peripullappa.
41. Ex.P-9 is the certified copy of judgment passed in OS 500/1959. It reveals that one Andanaiah and 7 others who are the children of Chunchaiah had filed said suit against their father Chunchaiah and three others. This suit had filed for partition and separate possession of the suit schedule property. In the said suit the children of Chunchaiah had challenged sale deeds executed by their father Chunchaiah in favour of Ramaiah @ Peripullaih (Ex.P-1). On 3-9-1964 in the said suit judgment and decree passed and dismissed on merits. It is noticed that Ramaiah @ Peripullappa who is 30 OS No. 6490/1998 vendor of the plaintiff - Hemanna and plaintiff - Hemanna who are defendant No.2 and 4 respectively in the said case. Said suit was dismissed and upholding that the alienation made by Chunchaiah in favour of the vendor of the plaintiff namely Ramaiah @ Peripullappa. It is also held that subsequently the suit schedule property sold by Ramaiah @ Peripullappa in favour of the present plaintiff - Hemanna also valid deeds. Considering all these aspects in OS 236/1980 it has been held that the suit schedule property originally belongs to Sri Chunchaiah.
42. Ex.P-10 is the certified copy of the order dated 24-11- 1970 passed by Deputy Commissioner for Inam Abolition, Bangalore. Ex.P-27 is the typed copy of said order. It reveals that after purchase of suit property plaintiff - Hemanna had filed application for registration of occupancy right. That application has been rejected by Special Deputy Commissioner for Inam Abolition. As against the said order the plaintiff - Hemanna had preferred an appeal in case No.49, 64 and 129/1959-60. Accordingly as per Ex.P-10 and Ex.P-27 order passed and registered occupancy right in favour of the plaintiff
- Hemanna in respect of suit property. It is further ordered that the name of plaintiff - Hemanna is registered as 31 OS No. 6490/1998 permanent tenant under Section 5 of the said Act. Ex.P-11 is the endorsement issued by the Deputy Commissioner of Inam Abolition for payment of premium by the plaintiff - Hemanna. Ex.P-12 is the assessment register extract in respect of suit schedule property which is in the name of plaintiff - Hemanna.
43. On perusal of the above said pleadings, oral and documentary evidence of the plaintiff, I am of the opinion that previously suit schedule property was belonged to one Hanumaiah and Muddaiah who are the sons of Lingappa. As per registered sale deed dated 29-8-1934 (Ex.P-4) they sold the said land in favour of Chunchappa. As per Ex.P-1 of sale deed dated 6-2-1957 said Chunchappa/Chunchaiah sold the land in favour of Ramaiah @ Peripullappa. Subsequently said Ramaiah @ Peripullappa sold the said land to the plaintiff - Hemanna vide registered sale deeds dated 11-9-1959 and 19- 8-1959 (Ex.P-2 and Ex.P-3). Further I am of the opinion that on the basis of the above said sale deeds plaintiff - Hemanna was in possession of the suit schedule property, he had filed an application for registration of occupancy right. As per Ex.P- 10 dated 27-11-1970 the Special Deputy Commissioner for Abolition of Inam, Bangalore registered occupancy right in his favour in respect of suit schedule property. As per Ex.P-11 on 32 OS No. 6490/1998 20-1-1971 the Special Deputy Commissioner, Inam Abolition, Bangalore, issued an endorsement that occupancy right granted in favour of the plaintiff - Hemanna and also made him as khathedar. As per Ex.P-11 the name of the plaintiff - Hemanna entered into revenue extract and he had also paid tax as per Ex.P-5, P-6 and P-8.
44. The defendant No.17 to 20 in the written statement contended that the application filed by the plaintiff - Hemanna for re-grant of suit schedule property has been rejected by concerned authorities. When such being the case, question of order being passed by Deputy Commissioner Inam Abolition and registering the name of the plaintiff - Hemanna as occupant, filing appeal before Karnataka Appellate Tribunal are making believe story for knocking off valuable lands. Basing on the above said contention, I am of the opinion that it is undisputed fact that the defendant No.1 of this case had challenged Ex.P-10 of the order for granting registration of occupancy right of the plaintiff before Mysore Revenue Appellate Tribunal, Bangalore in appeal No.972/1972. On 5- 10-1972 the said Tribunal dismissed the said appeal filed by the defendant No.1 and conferred Ex.P-10 of the order passed and granting occupancy right in favour of the plaintiff - 33 OS No. 6490/1998 Hemanna. As against the said order the defendant No.1 has not challenged before competent Court of law. Hence, I am of the opinion that Ex.P-10 of the order for granting occupancy right of the plaintiff over the suit schedule property is still in force and binding on the defendant No.1. It is noticed that defendant No.17 to 20 have denied the registration of occupancy right granted in favour of plaintiff as per Ex.P-10. But till today they have not challenged the order of Ex.P-10. Hence, I am of the opinion that the defendant No.17 to 20 in the present suit cannot be say that order passed in Ex.P-10 is illegal and not accordance with law.
45. The defendant No.1 in the written statement formally denied the case of the plaintiff that suit schedule property was belongs to one Chunchaiah, he sold the same in favour of one Ramaiah @ Peripullappa , subsequently said Ramaiah @ Peripullappa in turn sold the suit schedule property in favour of the plaintiff - Hemanna. It is noticed that plaintiff - Hemanna had filed application for register the occupancy right. Accordingly as per Ex.P-10 registered the occupancy right in his favour in respect of suit property is not at all specifically denied by the defendant No.1.
34 OS No. 6490/1998
46. The defendant No.1 in para No.4 of the written statement taken contention that the defendants 2 to 16 are in possession and enjoyment of the residential premises built by them in their respective portion and living in the same. They got khatha in their name and paying tax to CMC. It is further contended that houses of defendants 2 to 16 situated in the gramatanas of Pantharapalya village, Mysore road, Bangalore City. The defendants 2 to 16 have also taken similar contention in the written statement. They further contended that the plaintiff is claiming the new gramatana where there are innumerable constructions. The plaintiff has suppressed that the properties of defendants 2 to 16 lying in new gramatana abutting Bangalore Mysore road. They further contended that new gramatana measuring 2 acres 22 guntas in Sy.No.1 was earmarked as new gramatana consequent upon the survey and settlement effected in the village. DW.1 in his examination-in-chief reiterated the above said averments of the written statement. As per the pleadings and oral evidence placed by the defendant No.2 to 16 they are claiming their title and possession over their respective portion of houses which are existing in the suit schedule property. 35 OS No. 6490/1998 They claiming their title in respect of houses through defendant No.1 - Panchayath.
47. I have perused the above said contention of the defendant No.1 to 16. I am of the opinion that to prove their case that the suit schedule property claiming by the plaintiff is coming under new gramatana, it measuring 2 acres 22 guntas in Sy.No.1 of Pantharapalya village, it was earmarked as new gramatana and consequent upon the survey and settlement effected in the village the defendant No.1 to 16 have not produced iota of documentary evidence. Further I am of the opinion that the defendants have not produced any revenue documents before this Court that their houses are coming under new gramatana. At this stage itself it is pertinent to note that in previous suit OS 236/1980 the defendant No.1 of this was defendant No.2. In the said case he took a similar contention that the suit schedule property is coming under gramatana. But in the said case as per the judgment it was held that the defendant No.2 has failed to establish that the suit schedule property is coming under gramatana. Particularly issue No.2 framed in the said case that whether the defendant No.2 (present defendant No.1 of this case) prove that the suit property is part and parcel of gramatana of 36 OS No. 6490/1998 Pantharapalya ? In the judgment the Court held that the defendant No.2 has failed to prove the same and answered the said issue in the negative. As I stated above, in the present case also defendants 1 to 16 have not produced single piece of document before this Court to prove that the houses of defendants 2 to 16 are coming under new gramatana of Pantharapalya village.
48. The defendants 2 to 16 contended that the defendant No.2 is in possession and enjoyment of the residential premises built in site No.43, CMC No.16/216, the defendant No.3 in site No.42, CMC No.15/215, the defendant No.4 in site No.41, CMC No.1/214, the defendant No.5 in site No.40, CMC No.14/213, the defendant No.7 in site No.68, CMC No.12/211, the defendant No.8 in site No.38, CMC No.11/210, the defendant No.10 in site No.36, CMC No.9/208, the defendant No.11 in site No.35, CMC No.8/209, the defendant No.12 in site No.34 in CMC No.7/206, the defendant No.13 in site No.33, CMC No.6/205, the defendant No.16 in site No.45, CMC No.12/201.
49. They further contended that the above mentioned sites are situated in new gramatana of Pantharapalya, Mysore road, 37 OS No. 6490/1998 Bangalore City. The defendants 2 to 16 and their ancestors are in possession and enjoyment of the above said properties since more than 50 years from the date of this suit. The above said properties situated in new gramatana measuring 2 acres 22 guntas which has been earmarked by the survey authorities. The said property was vested with the Government(Inam Village) Pantharapalya village under Karnataka (P & M) Inam Abolition Act, 1954. Considering the possession and enjoyment of the defendants 2 to 16 and their predecessors in title, Panchayath has been recognized. It has been converted for residential and such other purpose in the above said new gramatana area, in the year 1973 formed layout plots with the construction existing thereon and distributed and allotted the same to the defendants 2 to 16 and others. Thereafter the defendants 2 to 16 obtained khatha, paying taxes to the respective properties. They constructed houses with the permission of Panchayath. DW.1 in his examination-in-chief reiterated the above said averments of the written statement.
50. To prove their case defendants 2 to 16 have produced 14 photographs and got marked as Ex.D-1 to D-14. But it is 38 OS No. 6490/1998 noticed that said photographs are not having negative and C.D.
51. They have also produced one plan of gramatana of Pantharapalya village, Kengeri hobli and Bangalore City Taluk and got marked as Ex.D-15. Very careful perusal of the said document I am of the opinion that it is nowhere mentioned that who prepared and approved said map. Seal put on the said Ex.D-15 is not clear about the same. It is not visible. Further I am of the opinion that in support of said Ex.D-15 the defendants have not produced documents to show that gramatana property existing in respect of said Ex.D-15. To prove the said documents the defendants have not chosen to examine who issued the same.
52. The defendants have produced demand register extract for the year 1988-89 and got marked as Ex.D-16. It is mentioned the name of defendant No.2 to 5, 7 to 13 and 16 in respect of house properties as mentioned in the written statement.
53. They have produced Hakku Pathra issued by V.P. Chairman, Pattanagere Group Panchayath in the name of the defendant No.2 - Ramakrishnappa in respect of site No.43. 39 OS No. 6490/1998 Said Hakku Pathra marked as Ex.D-149. Four tax paid receipts in the name of the defendant No.2 produced and got marked as Ex.D-150, D-151, D-152 and D-153. Another six tax paid receipts in the name of defendant No.2 produced and got marked as Ex.D-17 to D-22. Tax assessment extract for the year 1997-98 in the name of defendant No.2 produced and got marked as Ex.D-23.
54. Copy of letter issued by one Padmamma for transfer of khatha of site produced and got marked as Ex.D-24. Copy of extract regarding houses and vacant spaces registered in the year 2007-08 in the name of defendant No.2 produced and marked as Ex.D-25. One K.E.B. receipt in the name of defendant No.2 produced and got marked as Ex.D-26.
55. Hakku pathra in the name of the defendant No.3 - Narasappa produced and got marked as Ex.D-154. Nine tax paid receipts in the name of the defendant No.3 produced and got marked as Ex.D-155 to D-162. Another five tax paid receipts in the name of defendant No.3 produced and got marked as Ex.D-27 to D-31. Tax assessment extract in the name of defendant No.3 produced and got marked as Ex.D-32. Copy of one tax paid receipt in the name of one 40 OS No. 6490/1998 Shivakumar produced and got marked as Ex.D-34. Copy of E.C. from 1-4-2002 to 31-3-2004 in respect of site No.42 new No.15 khatha No.215/15 produced and got marked as Ex.D-
35. Another copy of E.C. in the name of Krishnappa produced and got marked as Ex.D-36.
56. Hakku pathra in the name of the defendant No.4 - Kempamma produced and got marked as Ex.D-37. License for construction of house issued by V.P. Chairman, Pattanagere Group Panchayath produced and got marked as Ex.D-38. Two tax paid receipts in the name of the defendant No.4 produced and got marked as Ex.D-39 and Ex.D-40. Five tax paid receipts in the name of B. Krishnappa S/o Byrappa produced and got marked as Ex.D-41 to D-45. Another four tax paid receipts in the name of defendant No.4 produced and got marked as Ex.D-46 to D-49. Tax assessment extract for the year 1997-98 in respect of property No.214 in the name of defendant No.4 produced and got marked as Ex.D-50. Copy of two Xerox copies of tax paid receipts in the name of defendant No.4 produced and got marked as Ex.D-51 and D-
52. Copy of the notice issued by the BBMP in favour of Kempamma dated 7-10-2009 for payment of tax produced and got marked as Ex.D-55. Two electricity bills produced in 41 OS No. 6490/1998 the name of Kempamma and got marked as Ex.D-54 and D-55.
57. Two tax paid receipts in the name of defendant No.5 - Pyare Jan produced and got marked as Ex.D-56 and D-57. Tax assessment extract in the name of said Pyarejan in respect of property No.213 produced and got marked as Ex.D-58. Three Xerox copies of tax paid receipts in the name of Byrappa produced and got marked as Ex.D-59, D-60 and D-61. Tax assessment extract for the year 1997-98 in the name of said Byrappa in respect of property No.212 produced and got marked as Ex.D-62. Another tax paid receipts in the name of said Byrappa produced and got marked as Ex.D-63. One K.E.B. bill in the name of B. Shivakumar produced and got marked as Ex.D-64.
58. Hakku Pathra in the name of the defendant No.7 - Begum Jan produced and got marked as Ex.D-65. License for construction of house issued in the name of defendant No.7 produced and got marked as Ex.D-67, D-68 and D-69. Tax assessment extract for the year 1997-98 in respect of property No.211 in the name of defendant No.7 produced and got marked as Ex.D-70. Two K.E.B. bills in the name of 42 OS No. 6490/1998 defendant No.7 produced and got marked as Ex.D-54 and D-71 and D-72.
59. Hakku pathra in the name of the defendant No.8 - Mariyachari produced and got marked as Ex.D-73. License for construction of house issued in the name of defendant No.8 produced and got marked as Ex.D-74. Three tax paid receipts in the name of defendant No.8 produced and got marked as Ex.D-75, D-76 and D-77. Tax assessment extract for the year 1997-98 in respect of property No.212 produced and got marked as Ex.D-78.
60. Four tax paid receipts in the name of Javarappa S/o Shanthappa produced and got marked as Ex.D-79, D-80, D-81 and D-82. Tax assessment extract for the year 1997-98 in the name of Javarappa in respect of property No.209 produced and got marked as Ex.D-83.
61. Hakku Pathra in the name of the defendant No.10 - Sannamma produced and got marked as Ex.D-84. License for construction of house produced and got marked as Ex.D-85. Two tax paid receipts produced and got marked as Ex.D-86 and D-87. Tax assessment extract for the year 1997-98 in 43 OS No. 6490/1998 the name of defendant No.10 in respect of property No.208 produced and got marked as Ex.D-88.
62. Hakku Pathra in the name of the defendant No.11 - Sonnappa produced and got marked as Ex.D-89. License for construction of house produced and got marked as Ex.D-90. Seven tax paid receipts in the name of defendant No.11 produced and got marked as Ex.D-91 to D-97. Tax assessment extract for the year 1997-98 in the name of defendant No.11 in respect of property No.207 produced and got marked as Ex.D-98. Three KEB bills produced in the name of defendant No.11 and got marked as Ex.D-99 to 101.
63. Hakku Pathra in the name of the defendant No.12 - Venkataswamy produced and got marked as Ex.D-101. License for construction of house produced and got marked as Ex.D-103. Six tax paid receipts in the name of defendant No.12 produced and got marked as Ex.D-104 to D-109. Tax assessment extract for the year 1997-98 in the name of defendant No.12 in respect of property No.206 produced and got marked as Ex.D-110. Three KEB bills produced in the name of defendant No.12 and got marked as Ex.D-111 to 113. 44 OS No. 6490/1998
64. Hakku Pathra in the name of the defendant No.13 - Ningamma produced and got marked as Ex.D-114. License for construction of house in the name of defendant No.13 produced and got marked as Ex.D-115. Seven tax paid receipts in the name of defendant No.13 produced and got marked as Ex.D-116 to D-122. Tax assessment extract for the year 1997-98 in the name of defendant No.13 in respect of property No.205 produced and got marked as Ex.D-123. Three KEB bills produced in the name of defendant No.13 and got marked as Ex.D-124 to 125.
65. Hakku Pathra issued in the name of Chikkamma W/o late Mariyappa produced and got marked as Ex.D-126. Two tax paid receipts in the name of Mariyappa produced and got marked as Ex.D-127 to D-128. Tax assessment extract for the year 1997-98 in the name of said Mariyapa in respect of property No.204 produced and got marked as Ex.D-129. One more tax paid receipt in the name of Mariyappa produced and got marked as Ex.D-130. Four KEB bills produced in the name of Mariyappa and got marked as Ex.D-131 to 134. It reveals that defendants have not pleaded and adduced evidence that who is this Chikkamma W/o Late Mariyappa. Hence, I am of 45 OS No. 6490/1998 the opinion that Ex.D-126 to 134 are in the name of said Chikkamma are not related to this case.
66. Hakku Pathra in the name of Ramaiah S/o Ramegowda produced and got marked as Ex.D-135. License for construction of house in the name of said Ramaiah produced and got marked as Ex.D-136. Two tax paid receipts in the name of Ramaiah produced and got marked as Ex.D-137 and D-138. Tax assessment extract for the year 1997-98 in the name of said Ramiah in respect of property No.202 produced and got marked as Ex.D-139. It reveals that defendants have not pleaded and adduced evidence that who is this Ramaiah S/o Ramegowda. Hence, I am of the opinion that Ex.D-135 to D-139 are in the name of Ramaiah S/o Ramegowda are not related to this case.
67. Hakku Pathra issued in the name of the defendant No.16
- Boraiah produced and got marked as Ex.D-140. License for construction of house issued in the name of defendant No.16 produced and got marked as Ex.D-141. Three tax paid receipts in the name of defendant No.16 produced and got marked as Ex.D-142, D-143 and D-145.. Tax assessment extract for the year 1997-98 in the name of defendant No.16 46 OS No. 6490/1998 in respect of property No.201 produced and got marked as Ex.D-98. One KEB bill produced in the name of defendant No.16 produced and got marked as Ex.D-146.
68. Hakku Pathra in the name of Chowrappa S/o Shanthappa produced and got marked as Ex.D-165. Thirteen tax paid receipts in the name of defendant No.12 - Venkataswamy produced and got marked as Ex.D-166 to D-
178. One tax paid receipt in the name of Ramaiah, who is the husband of defendant No.15 produced and got marked as Ex.D-179. Acknowledgement issued by the BBMP in the name of Ramaiah dated 13-11-2009 produced and got marked as Ex.D-180. One K.E.B. bill in the name of Ramaiah produced and got marked as Ex.D-181.
69. I have perused the above said pleadings, oral and documentary evidence placed by the defendants 2 to 16. It reveals that V.P. Chairman, Pattanagere Gram Panchayath, Kengeri Hobli issued said Hakku Pathras in the name of defendants 3 to 5, 8 and 10 to 13 and 16. It is noticed that defendants have not produced Hakku Pathra belongs to the defendants 6, 9, 14 and 15. In the written statement also not stated that these sites allotted to the defendants 6, 9, 14 47 OS No. 6490/1998 and 15. Hence, I am not accepted the contention of the defendants that the defendant No.1 - Panchayath issued Hakku Pathra and license for construction of house to the defendant No.6, 9, 14 and 15 and they are in possession and enjoyment of their respective houses.
70. It is reveals that the license for construction of house issued by V.P. Chariman, Pattanagere Grama Panchayath, in favour of defendants 2 to 5, 7 and 8 and 10 to 13 and 16. It reveals that said Hakku pathras issued on 10-8-1973 and license for construction of houses issued on 2-8-1979. Above said Hakku Pathra and license issued by V.P. Chairman, Pattanagere Group Panchayath. I am of the opinion that officials of Pattanagere Group Panchayath have not issued said Hakku Pathra and license for construction of houses. Further I am of the opinion that V.P. Chairman is not competent authority to issue above said Hakku Pathra and license in favour of the defendants. He has no right to issue the same. It is noticed that as per alleged Hakku Pathras sites issued to the defendants 2 to 5, defendants 7 to 13 and 16 by the defendant No.1 in the year 1973. It is admitted fact that in the year 1973 suit filed by the original plaintiff - Hemanna OS 33/1971 was pending, that Court was prima facie hold that 48 OS No. 6490/1998 plaintiff - Hemanna was in possession of suit schedule property as on the date of the suit and passed temporary injunction order on 20-7-1972 Ex.P-15 is the certified copy of the said order produced by the plaintiffs. Hence, it is noticed that during the pendency of OS 33/1971 and existence of interim order the defendant No.1 - Panchayath Chairman issued alleged Hakku Pathras to the defendant No.2 to 16.
71. Further I am of the opinion that concerned Pattanagere Group Panchayath (defendant No.1) has not produced documents to show that they formed layout in the gramatana, formed layout and distributed sites to the defendants 2 to 16. The defendant No.1 is the Panchayath in the written statement not pleaded that they formed layout in the gramatana and distributed sites to the defendants 2 to 16 by way of Hakku Pathra. They have also not pleaded that they have issued license to the defendants 2 to 16 for construction of houses. It is pertinent to note that the concerned Pattanagere Group Panchayath has not obtained permission from Government for formation of layout in the gramatana and distributed the same to the defendants 2 to 16 and others. In this regard no documentary evidence produced by the defendants. It is admitted fact that the defendants 2 to 49 OS No. 6490/1998 16 are constructed houses in the suit schedule property and residing. But I am of the opinion that on the basis of the alleged Hakku Pathra, tax assessment extract, tax paid receipts it cannot be held that the defendants are acquired title of their respective properties. Because the above said Hakku Pathras not issued by the concerned authority of Panchayat as per law. Therefore, on the basis of the alleged Hakku Pathras, license for construction of building and tax paid receipts the defendants 2 to 16 cannot claiming their title in respect of their properties. It is well settled law that tax assessment extract, tax paid receipts will not confer title of the defendant No.2 to 16 in their respective houses. In this context I relied upon the decision of Hon'ble Supreme Court reported in AIR 1997 Supreme Court 2719 ( Balwanth Singh and another etc., vs. Daulat Singh (dead) by L.Rs., and others).
72. It is the specific case of the defendant No.2 to 16 that their house properties are situated in new gramatana of Pantharapalya village, defendant No.1 - Village Panchayath formed layout in the said gramatana, as per the order of Government they have distributed sites to the defendant No.2 to 16 and others who were site less person. But, as discussed 50 OS No. 6490/1998 above to prove the said fact the defendant No.2 to 16 have not produced iota of documentary evidence. It is noticed that in his cross-examination DW.1 deposed against their written statement and examination-in-chief. He has stated that he does not know that whether the defendant No.1 - Panchayath had formed sites in the suit schedule property. He does not know about whether they have produced documents to show that suit schedule property is belongs to Government or Panchayath. He does not know that their sites situated in gramatana or new gramatana. He further stated that he does not know that whether Panchayath obtained approval or sanction from Government for formation of sites in the suit schedule property. He also stated that he does not know about the extent of alleged gramatana property as claimed by them. Hence, I am of the opinion that the evidence of defendant No.1 is not supported the case of the defendant No.2 to 16.
73. In the cross-examination of PW.1 by the defendants 17 to 20, he has admitted that now the defendants 2 to 20 are in possession of the suit schedule property. He has also admitted that portion of the school has been existence in the suit property for the last 30-40 years, houses situated in the 51 OS No. 6490/1998 suit property are already 20 years old. He has denied that at the time of filing of the suit. the suit schedule property had already lost its characteristic as agricultural land. He further admitted that last more than 46 years several buildings are existing in the suit property. But he has voluntarily says that that school building excluding 51 x 22 feet. He has denied that 100 x 55 feet school building covered in the said area.
74. The defendants 2 to 16 side suggested to PW.1 that suit schedule property is gramatana property and prior to 1950 itself it was vested with Government, thereafter layout formed by identifying the site less persons and allotted to various persons. He has stated that he does not know that Hakku Pathras issued to the allottees including the defendants 2 to
16. He has admitted that site holders have put up construction of houses in their sites. But he has stated that they are put up illegal constructions. He has denied that from the date of allotment the defendants 2 to 16 are in possession and enjoyment of the respective sites. He has denied that his father has no valid title over the suit property, khatha was not at all got effected in his name. He has denied that Ex.P-5 to 8 have been fabricated for the purpose of this case. He has denied that prior to 1970 the defendants 2 to 16 and their 52 OS No. 6490/1998 ancestors were in possession and enjoyment of the sites which were allotted to them. He further denied that as per the Government order the defendant No.1 - Panchayath had issued Hakku Pathra to the defendants 2 to 16. They have not produced said Government order before this Court.
75. PW.1 has admitted that in the sale deed of Chunchaiah there is no mentioning of survey number and extent. He also admitted that there is no mentioning of survey number and extent in the sale deed of Ramaiah @ Peripullappa. But he has denied that Chunchaiah or Ramaiah @ Peripullappa had no right, title and interest over the suit schedule property.
76. He has admitted that in Ex.P-2 and P-3 of sale deeds belongs to his father there is no mentioning of survey number and extent. He has denied that his vendor had no right, title, interest and possession over the suit schedule property. Hence, there is no mentioning of survey number and extent in the said sale deeds. He has denied that they have not acquired any right, title and interest over the suit schedule property under Ex.P-2 and P-3 of sale deeds. PW.1 stated that as per the order of Deputy Commissioner they have furnished description to the suit property in the plaint 53 OS No. 6490/1998 schedule. He has admitted that there is no mentioning of boundaries to the suit schedule property in the order of Special Deputy Commissioner of Inam Abolition. He has denied that the suit schedule property is not belongs to them by their father. Hence, they have not filed any police complaint about construction of the houses by the defendants 2 to 16. He has denied that in the suit schedule property there was creation of new gramatana by the Panchayath, 2 acres 20 guntas of land the sites have been formed by way of layout and the said sites have been allotted. He has denied that since prior to 50 years back the defendants ancestors were in possession and enjoyment of the suit schedule property. He has denied that the suit schedule property is not at all belongs to them and it belongs to the defendants. He has denied that the suit schedule property is not belongs to them, hence, they have not filed application for change of khatha. PW.1 has denied that the suit schedule property is part and parcel of gramatana property, wherein revenue authorities formed layout and distributed sites to the site less persons.
77. From going through the pleadings, oral and documentary evidence placed by both the parties, I am of the 54 OS No. 6490/1998 opinion that the title of the plaintiff - Hemanna over the suit schedule property already decided by competent Court of law and it was confirmed by Hon'ble High Court of Karnataka, Bangalore. In the plaint and PW.1 in his examination-in-chief stated that after granting occupancy right to plaintiff - Hemanna under the Inam Abolition Act, the defendant No.1 had challenged the same in the appeal and the said appeal was dismissed. Thereafter the defendant No.1 has made an attempt to taking the possession of the suit schedule property by force. He has claiming that the suit schedule property belongs to Government. Therefore, the plaintiff - Hemanna had filed OS No.33/1971 against the defendant No.1 and seeking declaration of title and permanent injunction.
78. It is further stated that the said suit came to be dismissed. As against the said judgment plaintiff - Hemanna had preferred appeal in RA No.73/1978 in the Court of Principal Civil Judge, Bangalore District. Said appeal was allowed and set aside the judgment and decree passed in OS 33/1971, matter remanded for fresh disposal with a direction to frame additional issues. Accordingly after remand of the case, it was transferred to the City Civil Court and was re- numbered as OS 236/1980. It is further contended that said 55 OS No. 6490/1998 suit has been decreed and declared that plaintiff - Hemanna is the owner of the suit schedule property. As against the said order the defendant No.2 ( Panchayath) has preferred RFA 753/1998 before Hon'ble High Court of Karnataka, Bangalore, which was dismissed as being not pressed.
79. It is further contended that in the judgment and decree in OS No.236/1980 it was held that the plaintiff - Hemanna is the owner of the suit schedule property originally it belonged to Chunchaiah. It is further held that the suit schedule land situated in Sy.No.1 and 6 measuring 30 guntas, occupancy right was granted to the plaintiff in respect of said land. It is further held that taking advantage of dismissal of OS No.33/1971, the defendant No.1 encroached on the suit land. It is further held that before dismissing of the suit houses had been put up by the allottees in the suit property. It is further held that the defendant No.1 has not produced any records to show that any portion of old Sy.No.1 was gramatana land belongs to it at any point of time. It was further held that no records to show that any portion of Sy.No.1 was belongs to the Government the defendants have not produced any documents. It was held that occupancy right granted to the plaintiff that he was cultivating the said land. In the said case 56 OS No. 6490/1998 Court has not accepted the claim of the defendant No.2 about alleged gramatana area.
80. To prove the above said fact the plaintiffs have produced the certified copy of the judgment and decree dated 14-7- 1988 passed in OS No.236/1980 by 4th Addl. City Civil Judge, Bangalore City and got marked as Ex.P-16. It shows that original plaintiff - Hemanna had filed suit against Chief Secretary, represented by Mysore State and Village Panchayath, Pattanagere Group Panchayath (defendant No.2 in the present case). He had sought for declaration that he is the absolute owner in possession of the suit schedule property. He also seeking consequential relief of permanent injunction restraining the defendants from interfering with his possession and enjoyment of the suit schedule property. After full fledged trial, judgment and decree passed in this case on merits and partly decreed the suit of the plaintiff. It has been declared that the plaintiff - Hemanna is the absolute owner of the suit schedule property. But the relief sought by plaintiff - Hemanna for permanent injunction has been dismissed. It was held that plaintiff has not proved his possession over the suit schedule property. Hence, in the said suit the Court has declined for granting a decree of permanent injunction. 57 OS No. 6490/1998
81. It is noticed that in the said suit itself the defendant No.1 - Panchayath had taken specific contention that the suit schedule property is a part and parcel of gramatana of Pantharapalya. But as per the judgment Panchayath has failed to prove the said fact in issue. Hence, in the said judgment it has been held that the defendant No.1 - Panchayath has failed to prove that the suit property is part and parcel of gramatana of Pantharapalya. In the present case the defendants 1 to 16 taken specific contention that the plaintiff claiming over the suit schedule property which is new gramatana. They further contended that the properties of defendants 2 to 12 are coming under new gramatana abutting Bangalore-Mysore road. They further contended that the said new gramatana measuring 2 acres 22 guntas was earmarked as new gramatana consequent upon the survey and settlement effected in the village subsequent to or at the time of vesting of the village in the year 1959 or 1960. Said new gramatana was earmarked as on the date of vesting as it had become a developed area with construction of temples, public institutions and residential houses. It is further contended that the Panchayath has formed layout and sites distributed to the defendants and others. But as discussed above, I am of 58 OS No. 6490/1998 the opinion that the defendant No.1 to 16 have not produced any iota of documents to show that the properties of defendants 1 to 16 are coming under new gramatana measuring 2 acres and 22 guntas. They have also not produced any documents to show that as per the permission of Government, the defendant No.1 formed sites in the said gramatana and distributed to the defendants 2 to 16 and others. They also not produced documents that the revenue and survey authorities have recognized that the properties of defendant No.2 to 16 are existed in new gramatana.
82. In OS 236/1980 (Ex.P-16) it was held that the plaintiff - Hemanna is absolute owner of the suit schedule property. It is further held that the defendant - Panchayath has not proved that the suit schedule property is part and parcel of gramatana of Pantharapalya. In the said suit the defendant - Panchayath has disputed the description and boundaries of the suit schedule property. It has been contended that there is no mentioning of survey number and extent mentioned in sale deeds of Chunchaiah and Ramaiah @ Peripullappa and plaintiff - Hemanna. Considering the above said sale deeds along with evidence of survey officer, hissa survey tippani, the Court held that descriptions and 59 OS No. 6490/1998 boundaries mentioned in the plaint schedule with sale deeds are one and the same. It is noticed that in the said suit Court Commissioner/Surveyor has been appointed for ascertaining about the existence of suit schedule property, extent of boundaries. Accordingly the Court Commissioner inspected the spot and find out the existence of the suit schedule property on the basis of the sale deeds of the plaintiffs, order of Deputy Commissioner of Inam, hissa survey tippany and found that existence of the suit schedule property and filed his report. Considering the said report also the Court decided that descriptions and boundaries mentioned in the plaint are as per the sale deeds. Hence, in this case the defendants can not say that description and boundaries of the suit property are not correct.
83. It is admitted fact that aggrieved by the said judgment and decree of OS 236/1980 the defendant No.1 of the present case and defendant No.2 of the said case had preferred Regular First Appeal No.753/1988 before the Hon'ble High Court of Karnataka at Bangalore. On 28-8-1997 the said appeal was dismissed as not pressed. I am of the opinion that the judgment and decree passed in OS 236/1980 and declared that the plaintiff - Hemanna is the absolute owner of the suit 60 OS No. 6490/1998 schedule property is not at all challenged by the defendants 2 to 16 or any other persons before competent Court of law. The defendants 2 to 16 have claiming their right, title and possession over their respective houses through defendant No.1. They further contended that defendant No.1 allotted sites to them. But, as discussed above in OS 236/1980 the Hon'ble Court passed judgment and decree that plaintiff - Hemanna is absolute owner of the suit schedule property, the defendant No.1 - Panchayath has failed to prove that the suit schedule property is part and parcel of gramatana. It is also held that Panchayath has failed to prove his title over the suit property. Therefore, I am of the opinion that declaration of title of the plaintiff in respect of suit schedule property passed in OS 236/1980 is still in force and it is binding on the defendant No.1 of the present case. It is also binding on the defendants 2 to 16 who are claiming their rights over their houses through defendant No.1. AIR 2001 CULCUTTA 162 (Salim Makkar v. N.K. Pansari and others). In the said decision Hon'ble Court held as follows :-
(B) Civil P.C.(5 of 1908), S.11 - Resjudicata -
Applicability - Person claiming interest in property through his predecessor-in-interest - Earlier decision in which predecessor-in-
interest was a party binds such persons.
61 OS No. 6490/1998
Unless one is a party to the proceedings the decision therein does not bind him. But this proposition has an exception namely if the predecessor in interest was a party thereto involving the same property and such person claims through a person who was a party to the proceedings then the said decision binds him. A person claimed interest in property on basis of his being the lessee. But in earlier suits it was established that his lessors had no interest, title in the property and they were not owners. The earlier decision is binding on the lessee, though he was not a party to earlier suits.
84. In the present case the plaintiff contended that the suit schedule property purchased by their vendor namely Ramaiah @ Peripullappa from Chunchaiah. As per Ex.P-1 of registered sale deed dated 6-2-1957 Chunchaiah sold the said property. PW.1 in his examination-in-chief deposed as per the above said averments of the plaint. The plaintiff further contended that in OS 236/1980 Hon'ble Court declared that the plaintiff - Hemanna had become the owner of the suit land which originally belongs to said Chunchaiah. 62 OS No. 6490/1998
85. Ex.P-1 is the sale deed dated 6-2-1957 reveals that Chunchaiah sold the suit schedule property in favour of Ramaiah @ Peripullappa. That very contention taken by the plaintiff is not at all challenged by the defendants side in the cross-examination of PW.1. Ex.P-1 of the sale deed and its contents is also not challenged by the defendants in the cross- examination of PW.1.
86. I have perused the judgment and decree in OS 236/1980 (Ex.P-16). After considering oral and documentary evidence placed by the plaintiff particularly sale deed of Chunchaiah executed in favour of Ramaiah @ Peripullappa, Court held that vendor of the plaintiff Ramaiah @ Peripullappa purchased the suit schedule property from Chunchaiah. Subsequently the plaintiff purchased the suit schedule property by way of two sale deeds from said Ramaiah @ Peripullappa. The Court has specifically held that originally suit schedule property belongs to Chunchaiah. Ex.P-9 is the certified copy of the judgment and decree in OS 500/1959 in the Court of Additional II Munsiff, Bangalore, dated 3-9-1964. It reveals that sons of said Chunchaiah had filed the said suit against their father - Chunchaiah, his purchaser namely Ramaiah @ Peripullappa, one Chikkathimme Gowda and 63 OS No. 6490/1998 plaintiff of the present case Hemanna. The said suit filed by them for partition and challenged the sale deed of Ramaiah @ Peripulappa executed by Chunchaiah. Said suit was dismissed upholding that the alienation made by Chunchaiah in favour of the vendor of the plaintiff namely Ramaiah @ Peripullappa. It is also held that subsequently the suit schedule property sold by Ramaiah @ Peripullappa in favour of the present plaintiff - Hemanna also valid deeds. Considering all these aspects in OS 236/1980 it has been held that the suit schedule property originally belongs to Sri Chunchaiah.
87. The defendant No.2 to 16 have contended that defendant No.1 - Panchayath had formed sites in new gramatana and distributed the same to them and others. But DW.1 (defendant No.12) in his cross-examination stated that he do not know that whether the defendant No.1 had formed sites in the suit schedule property, he does not know about whether they produced documents to show that the suit schedule property belongs to Government or Panchayath. He further stated that he does not know about suit filed by the original plaintiff - Hemanna against the defendant No.1. He deposed that they have not produced documents to show that defendant No.1 formed layout, the said defendant No.1 64 OS No. 6490/1998 obtained approval and sanction from the Government. He further stated that he do not know that whether the defendant No.1 - Panchayath had obtained any permission from the Government for formation of site and allotment of the same.
88. From the over all discussion, I come to the conclusion that the plaintiffs have established that the suit schedule property had purchased by Ramaiah @ Peripullappa from Chunchaiah as per Ex.P-1 of sale deed dated 6-2-1957. They further established that as per Ex.P-4 of sale deed dated 29-3-1934 Chunchaiah had purchased the suit schedule property from its original owner Hanumaiah. They further established that thereafter original plaintiff - Hemanna had purchased the suit schedule property through registered sale deed dated 11-7-1959 and 19-8-1959 respectively (Ex.P-2 and Ex.P-3). Moreover, as discussed above in judgment and decree passed in OS 236/1980 it has been declared that the plaintiff - Hemanna was absolute owner of the suit schedule property and said order has been confirmed in RFA No.753/1988. It is admitted fact that original plaintiff - Hemanna is no more. During the pendency of the present suit he died and thereafter his children brought on record as plaintiff No.1(a) to 1(h). Hence, I have no hesitation to say 65 OS No. 6490/1998 that in view of death of owner of the suit schedule property i.e., Hemanna his children i.e., plaintiff No.1(a) to (h) inherited the suit schedule property and become owners of the same. Hence, I come to the conclusion that the plaintiffs have proved their title over the suit schedule property. They have also proved that in OS No.33/1971 (renumbered as OS No.236/1980) the Court declared that plaintiff - Hemanna had become owners of the land which originally belongs to Sri Chunchaiah. I further come to the conclusion that the defendant No.2 to 16 utterly failed prove that their house properties coming under new gramatana of Pantharapalya village, that gramatana property measuring 2 acres 20 guntas recognized by Revenue and Survey authorities, it was vested with Government, thereafter the defendant No.1 - Panchayath formed layout and distributed sites to them and others. Accordingly I answer issue No.1 and issue 3 in the affirmative.
89. ISSUE NO.2:- In the plaint it is stated that the defendant No.1 - Panchayath had challenged the order of the Deputy Commissioner, Inam Abolition, Bangalore in respect of granting of registration of occupancy right in favour of plaintiff
- Hemanna. That appeal has been dismissed. Thereafter the defendant No.1 tried for initiate for acquisition of suit land. It 66 OS No. 6490/1998 is further stated that plaintiff - Hemanna was objected the same. The defendant No.1 also made an attempt to taking portion of suit property by way of force claiming that the property belongs to the Government. During that time plaintiff - Hemanna had filed OS 33/1971 and sought for decree of declaration of title and consequently relief of permanent injunction from interfering with his peaceful possession and enjoyment of the same. It is further contended that the suit came to be dismissed. It is further contended that taking advantage of dismissal of OS No.33/1971 the defendant No.1 encroached upon the suit schedule land. Houses had been put up by the allottees of the site formed in the said land subsequent to dismissing the said suit.
90. It is noticed that the plaintiff has not produced judgment and decree passed in OS 33/1971 for showing date of disposal of said suit. In the pleadings also nowhere mentioned that what is the date of disposal of the said suit. But in the judgment passed in OS No.236/1980 (Ex.P-16) it is mentioned that the suit filed by the plaintiff - Hemanna i.e., OS 33/1971 dismissed on 9-2-1978. It is also mentioned that in OS 236/1980 on 25-5-1981 the plaintiff - Hemanna had 67 OS No. 6490/1998 filed application for amendment of plaint and seeking the relief of possession of suit schedule property and mandatory injunction against the defendant No.2 - Panchayath for demolition of construction put up in the suit property. Said application was dismissed on merit on 9-2-1984. In the cross- examination of PW.1 he has stated twice that the defendant No.1 has taken illegal possession of the suit schedule property in the year 1978-79.
91. The defendant No.1 in the written statement formally denied the contention of the plaintiff that after dismissal of suit OS 33/1971 they encroached upon the suit schedule land. The defendant No.2 to 16 in their written statement denied that after dismissal of the suit OS 33/1971 the defendant No.1 encroached on the suit property.
92. In the cross-examination of PW.1 the defendant No.2 to 16 side was suggested that prior to 1950 itself suit schedule property vested with Government prior to 1970 the defendants 2 to 16 their predecessors were in possession of the suit schedule property. But PW1 has denied the same. It is noticed that prior to 1970 the defendants 2 to 16 predecessors were in possession of the suit schedule property no 68 OS No. 6490/1998 documentary evidence produced before this Court. Documents also not produced by the defendants that prior to 1950 itself the suit schedule property vested with the Government.
93. It is seen from the records that the plaintiff - Hemanna had filed OS 236/1980 (old No.33/1971) for declaration of title over the suit schedule property and consequential relief of permanent injunction restraining the defendants 1 and 2 from interfering with his peaceful possession and enjoyment of the suit schedule property. As per Ex.P-16 of judgment and decree in OS 236/1980 it is held that plaintiff - Hemanna filed OS 33/71 in the year 1971 when the officials of the defendant No.2 prevented him from put up a fence to the land. The plaintiff also obtained temporary injunction at the time of filing of the suit for protection of his possession of the suits schedule land. After satisfying to the Court that he was in possession of the suit land as on the date of filing of the suit he obtained temporary injunction order. It is further held that subsequently after dismissal of the suit OS 33/1971 the defendant No.2 was dispossessed the plaintiff from the suit schedule property.
69 OS No. 6490/1998
94. In the written statement and DW.1 in his evidence it is contended that the defendant No.1 - Panchayath formed sites and issued possession certificate to the defendants 2 to 16 and others by way of allotment. It is admitted fact that in the 1973 Hakkupatras issued to the defendant No.2 to 5, 7 to 13 and 16.
95. Ex.P-14 is the certified copy of order sheet in OS 33/1971. This suit filed by original plaintiff - Hemanna against State and the defendant No.1 of this suit i.e., Village Panchayath Pattanagere Group Panchayath. The plaintiff - Hemanna had filed I.A. No.1 under Order 39 rule 1 and 2 of CPC for granting exparte order of temporary injunction against the defendant from interfering in his peaceful possession and enjoyment of the suit schedule property. Considering his case, on 20-1-1971 the Court (Prl. II Munsiff, Bangalore) granted interim temporary injunction till disposal of I.A.No.1.
96. Ex.P-15 is the certified copy of order passed dated 20-2-1972 in OS No.33/1971 on I.A.No.1 and 2. In the said suit the Court considered the I.A.No.1 and 2 on merits and as per I.A. No.1 granted temporary injunction against the defendants not to causing interference in the plaintiffs 70 OS No. 6490/1998 peaceful possession and enjoyment of the suit schedule property. The Court dismissed I.A.No.2 filed by the defendant No.2 - Panchayath for set aside the exparte order of temporary injunction granted in the said suit. It is admitted fact that as against said order no appeal filed by the defendant - Panchayath. From the above orders passed in Ex.P-14, P-15 it is clear that the plaintiff - Hemanna was in possession of the suit schedule property at the time of filing of OS No.33/1971. Accordingly on 20-7-1972 the Court granted temporary injunction order in his favour.
97. In the cross-examination of PW.1 the defendant No.1 side did not challenged the case of the plaintiffs that after dismissal suit OS No.33/1971 they encroached upon the suit schedule property. The defendant No.1 also not produced documents to show that they were in possession of the suit schedule property during the pendency of OS No.33/1971. It is seen from the records that suit filed by the plaintiff - Hemanna OS No.33/1971 dismissed on merits on 9-2-1978. Ex.P-16 is the certified copy of judgment and decree passed in the said suit. In the said judgment in para 45 it is held that the plaintiff was in lawful possession of the suit schedule property as on the date of filing of the suit and that 71 OS No. 6490/1998 subsequently he was dispossessed from the suit land after dismissal of the suit in OS No.33/1971. From the above discussion I come to the conclusion that the plaintiffs have established that taking advantage of the dismissal of the suit filed by plaintiff - Hemanna in OS 33/1971 the defendant No.1 encroached upon the suit schedule property. Hence, accordingly I answer the issue No.2 in the affirmative.
98. ISSUE NO.4:- In the plaint it is stated that after dismissal of OS 33/1971 the defendant No.1 encroached upon the suit land, formed sites and allotted to defendants 2 to 16 and others. It is further contended that during the pendency of the proceedings (suits) the defendant No.1 allotted the sites in favour of the defendants 2 to 16. I have perused the contention taken by the defendants. The defendant No.1 in his written statement has not at all denied the contention of the plaintiff. In the written statement (para 8) the defendants 2 to 16 contended that the defendant No.1 formed layout in the suit schedule property and allotted to them and others. Accordingly possession certificate issued to them and others in the year 1973 i.e., on 10-3-1973.
72 OS No. 6490/1998
99. Considering the same I am of the opinion that original plaintiff - Hemanna had filed OS 33/1971 in the year 1971. That suit has been dismissed on 9-2-1978. Appeal filed by the plaintiff - Hemanna in RA No.73/1978 before Prl. City Civil Judge, Bangalore District was allowed and set aside the judgment and decree for dismissal of 33/1971, remanded the case for fresh disposal. It is undisputed fact that after remand of the case that suit transferred to the City Civil Court and renumbered as OS 236/1980. That OS 236/1980 passed judgment and decree on 14-7-1988 and declared that the plaintiff - Hemanna was the owner of the suit schedule property. The claim of the plaintiff for permanent injunction has been dismissed that during the pendency of the suit the plaintiff was dispossessed from the suit schedule property. Again RFA No.753/1988 filed by the defendant No.1 - Panchayath as against judgment and decree passed in OS 236/1980. On 28-8-1997 the said appeal was dismissed as not pressed.
100. It is further noticed that as per Ex.P-10 on 27-11-1970 Deputy Commissioner for Abolition of Inams, Bangalore, granted occupancy right in favour of plaintiff - Hemanna. Said order had challenged by the present defendant No.1 - 73 OS No. 6490/1998 Panchayath in the appeal 972/1972 before the Mysore Revenue Appellate Tribunal, Bangalore. On 5-10-1972 the said appeal was dismissed on merits. From going through the same I am of the opinion that in the year 1971 the plaintiff - Hemanna had filed OS 33/1971 and it was continued up to dismissal of RFA No.753/1988 dated 28-8-1997. Again the present suit filed by the plaintiff - Hemanna in the year 1998. As per the defendants themselves in the year 1973 i.e., on 10-8-1973 the defendant No.1 - Panchayath issued Hakku Pathras in the name of the defendants 2 to 16 and others. Ten Hakku Pathras produced by the defendants 2 to 16 side is disclosing that which are issued on 10-8-1973. As discussed above it is clear that the suit filed by the plaintiff - Hemanna OS 33/1971 dismissed on merits on 9-2-1978. It is further clear that in the year 1973 the proceedings in OS 33/1971 were pending. The defendant No.1 of the present case was defendant No.2 in OS No.33/1971. This defendant No.1 also challenged the order of occupancy right granted in favour of the plaintiff - Hemanna and filed in the said appeal. In spite of the same in the year 1973 during the pendency of OS 33/1971 the defendant No.1 - Panchayath allotted the sites in favour of the defendants 2 to 16 and others by way of Hakku 74 OS No. 6490/1998 Pathra. Hence, I come to the conclusion that the plaintiffs have established that during the pendency of the proceedings of OS 33/1971 the defendant No.1 allotted sites in favour of the defendant No.2 to 16. Hence, I answer the issue No.4 in the affirmative.
101. ISSUE NO.6:- In para No.20 of the written statement the defendants 2 to 16 denied the description and boundaries furnished by the plaintiff to the suit schedule property. They also denied the very identity of the suit schedule property. They claiming that the plaintiff is claiming the new gramatana where there are innumerable construction by misdescribing the same as one as described in the suit schedule property. In para 2 of the written statement the defendants 2 to 16 further contended that the plaintiffs seeking direction for delivery of possession of portion belongs to them. But they have not given the particulars of such portion of property which are stated to be in possession and enjoyment of each one of them. The plaintiff has not furnished individual boundaries in respect of houses belongs to the defendants 2 to 16. During the course of arguments the learned counsel for the defendants 2 to 16 submitted that identity of the suit schedule property is disputed. Sy.No.1 of Pantharapalya 75 OS No. 6490/1998 village consisting of 15 acres of land. It is not stated that out of the said land where exactly suit schedule property is allotted to the plaintiff. He further submitted that boundaries furnished to the suit schedule property is not supported by any other documents.
102. I have produced the above said contention taken by the defendants 2 to 16 side and arguments canvassed by their counsel. In the plaint the plaintiff mentioned description and boundaries to the suit schedule property is as follows :-
SCHEDULE An extent of 30 guntas of land in S.No.1 of Pantharapalya village, Kengeri hobli, Bangalore South taluk, bounded on the East by : Geregappa's property, on the West by : Bangalore Mysore Road, North by : Late Chikkavenkatappa's property and old school building, South by : Private property belonging to a Doctor.
103. As I discussed above in issue No.1 the plaintiff has furnished sale deeds which are disclosing boundaries to the plaint schedule. As per Ex.P-10 the occupancy right granted in favour of plaintiff - Hemanna in respect of suit schedule 76 OS No. 6490/1998 property i.e., 30 guntas of land in Sy.No.1 of Pantharapalya village.
104. It is pertinent to note that the title of the plaintiff - Hemanna over suit schedule property has been already decided by competent Court of law in OS 236/1980 (Ex.P-16). In the said judgment the defendant No.1 of this case - Panchayath specifically denied the identity of the suit schedule property. Considering the pleadings, oral and documentary evidence placed by both sides, considering the Court Commissioner's report and tippany the Court decided that plaintiff - Hemanna was owner of the suit schedule property. It is also decided about description and boundaries of the suit schedule property. It is admitted fact that previously OS 236/1980 was OS 33/1971. it is noticed that in the cross- examination of PW.1 defendants 2 to 16 side suggested as follows :
It is true to suggest that suit property involved in this case and involved in OS 33/1971 are one and the same.
Considering of the above said aspect I am of the opinion that the plaintiff has furnished description and boundaries as per the sale deeds of Ex.P-1 to P-4 and Ex.P-10 of order of 77 OS No. 6490/1998 occupancy right. To disprove the same the defendants have not produced any documentary evidence.
105. The defendants 2 to 16 are claiming that their houses are within new gramatana of Pantharapalya village. The said gramatana is consisting of 2 acres 20 guntas. That land has been earmarked as new gramatana by survey authorities. To prove the same the defendants have not produced any documentary evidence before this Court. Further I am of the opinion that in the pleadings and oral evidence the plaintiffs specifically contended that the properties of defendants 2 to 16 are part and parcel of suit schedule property. That particular case of the plaintiff is not at all denied by the defendants side. It is pertinent to note that the defendant No.2 to 16 claiming their title over the suit schedule property. In the cross-examination of PW.1 it was suggested that suit schedule property not belongs to the plaintiff, it is belongs to the defendant No.2 to 16. Such being the case I am of the opinion that when the defendant No.2 to 16 also claiming their alleged title and possession over the suit schedule property and they cannot denied description and boundaries of the suit schedule property.
78 OS No. 6490/1998
106. The plaintiff sought for relief of mandatory injunction for demolition of houses constructed by the defendants 2 to 20 in the suit schedule property and handed over the vacant possession of the same. Such being the case, I am of the opinion that the plaintiff need not be given separate boundaries to the properties of defendants 2 to 16 individually. Further I am of the opinion that on the basis of documentary evidence placed by the plaintiff it can be identified the existence of the suit schedule property. Therefore, I am not accepted the contention of the defendants 2 to 16 that the suit schedule property is not identifiable in view of innumerable construction in the said property. Hence, I answer the issue No.6 in the negative.
107. ADDITONAL ISSUE NO.1 DATED 14-7-2008:-
The defendants 7 to 20 contended that the suit of the plaintiff is not maintainable. Because the plaintiff has not issued statutory notice prior to the filing of the present case. I have perused the above said contention with case on hand. It is noticed that during the pendency of this case defendants 17 to 20 have been impleaded as per the application filed by the plaintiff. Further it is noticed that prior to impleading the defendants 17 to 20 as per Ex.P-34, the plaintiff got issued 79 OS No. 6490/1998 notice on 17-4-2006. As per Ex.P-34(a) of the postal acknowledgment said notice has been duly served on defendant No.20. Therefore, I am of the opinion that prior to impleading the defendants 17 to 20, the plaintiff got issued statutory notice under Section 80 of CPC. Therefore, the defendant No.17 to 20 cannot be say that the suit of the plaintiff is bad for want of prior notice to them. Accordingly I answer additional issue No.1 in the negative.
108. ADDITIONAL ISSUE NO.2 DATED 14-7-2008:- The defendant No.2 to 16 in para 17 of written statement contended that valuation made by the plaintiff to the suit schedule property is not correct and he has not paid proper Court fee in the suit. During the course of arguments the learned counsel for the defendants 2 to 16 submitted that the plaintiff filed this suit in the year 1998 for possession. He further stated that as per the pleadings, oral and documentary evidence of both sides it is clear that now suit schedule property lost its character of agriculture. Now the suit schedule property consisting of number of buildings. Hence, the suit schedule property has lost its character of agriculture. Therefore, the plaintiff has to pay the Court fee on the market value of the suit property as on the date of the suit. In 80 OS No. 6490/1998 support of his arguments the learned counsel for defendant No.2 to 16 cited the decision of our Hon'ble High Court reported in ILR 2005 KARNATAKA 60 (J.M. Narayana and others vs. Corporation of the City of Bengaluru, by its Commissioner office, Bangalore and others). In the said judgment Hon'ble Court held that 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. If such lands are included in the extended Corporation limits, the Land Revenue Act would cease to be applicable to such lands and the appellant is directed to pay deficit Court fee.
109. Per contra, learned counsel for the plaintiffs submitted that the suit schedule property is 30 guntas of agricultural land. It has been assessed by the Government. Hence, they paid Court fee under Section 29 r/w Section 7(2)
(a) of KCF & SV Act and it is correct. In support of his arguments he has cited the decision of our Hon'ble High Court reported in 2007(1) Kar.L.J., 259 (R. Ananda vs. Nanjundaswamy and others). Hon'ble Court in the above said decision held as follows :-
81 OS No. 6490/1998
KARNATAKA COURT FEES AND SUITS VALUATION ACT, 1958, Section 24(b) read with Section 7(2)(a)
- Agricultural land - Suit for declaration of title and injunction in respect of - Suit valuation on basis of market value of land - Agricultural land not converted into non-agricultural land as on date of filing suit, though situated within city limits, should be considered as agricultural land, and valued as such for purpose of Court fee, notwithstanding its conversion into non-agricultural land subsequently during pendency of suit.
110. In the present suit the plaintiff prayed for decree directing the defendants to deliver possession of the respective portion in their occupation. They also prayed for decree of mandatory injunction that directing the defendants to demolish the structures which are put by them on the suit land. I am of the opinion that considering the prayer sought by the plaintiff it is clear that he has sought for vacant possession of 30 guntas of land by way of demolishing the structures put by the defendants. The plaintiff filed valuation slip along with plaint and calculated the Court fee under Section 29 of Karnataka Court Fee and Suit Valuation Act in respect of possession. The plaintiffs further contended that suit schedule property is 30 guntas of agricultural land assessed by land revenue of Rs.1/-, accordingly he determined the Court fee of Rs.25/- and paid the same as per Section 7(2)(a) of KCF & SV Act. The plaintiff also paid Court 82 OS No. 6490/1998 fee of Rs.25/- in respect of relief of mandatory injunction under Section 26(e) of said Act.
111. It is noticed that plaintiff - Hemanna had filed OS No.236/1980 (old No. 33/1971) for declaration of title over the suit schedule property. In the said suit the Court passed judgment and decree on merit and declared that the plaintiff - Hemanna was absolute owner of the suit schedule property. On the basis of title declared in OS No.236/1980 the plaintiff filed the present suit for possession. I am of the opinion that when the title of the plaintiff Hemanna was decided in OS No.236/1980, on the basis of title decided in the said case the plaintiff filed this suit for possession. The plaintiffs have paid necessary Court fee in the said suit. Hence, in the present case the plaintiff need not pay Court fee for possession. Further I am of the opinion that it is true that defendant No.2 to 16 have constructed houses in the suit schedule property. But they have constructed the said houses unauthorizedly. As discussed above the plaintiffs have proved that during the pendency of the proceedings the defendant No.1 encroached on the suit property and distributed sites to the defendant No.2 to 16. The defendant No.2 to 16 have not produced documentary evidence that suit schedule property converted 83 OS No. 6490/1998 into non-agricultural land. From the above said discussion, I come to the conclusion that the plaintiffs have assessed the suit schedule property and paid the Court fee is correct. Therefore, I answer the additional issue No.2 in the negative.
112. ADDITIONAL ISSUE NO.3 DATED 16-8-2014 AND ISSUE NO.7:- These two issues are inter connected. Hence, for the purpose of avoiding repeated discussion, I have taken up these two issues together for consideration.
The defendants 2 to 16 have contended that they are in possession and enjoyment of the portion of the property without abstraction. They further contended that they and others are in possession and enjoyment of portion in the suit property for over the statutory period. Hence, the plaintiff has lost his rights under Section 27 of the Limitation Act.
113. They further contended that they have been in possession and enjoyment of the portion of the property for the last over 50 years without any kind of interference or obstruction of any person or authority and much less by the very plaintiff himself. They further contended that even otherwise they perfected right, title, interest and possession over such portion of property by adverse possession. DW.1 in 84 OS No. 6490/1998 his examination-in-chief reiterated the above said averments of the plaint.
114. I have perused the above said contention of the defendants 2 to 16. As discussed in issue No.1, I have already decided that the defendants 2 to 16 have not proved their ownership (title) over their houses existing in the suit schedule property on the basis of alleged Hakku Pathras, tax assessment extras and tax paid receipts. Moreover, it is noticed that the defendants 2 to 16 have claiming their title and possession over their respective houses in the suit schedule property through defendant No.1. They contended that the defendant No.1 allotted the sites to them and others. Accordingly they became owners and in possession of the same. But, it is pertinent to note that defendant No.1 has failed to prove his title over the suit schedule property. This aspect already decided in OS 236/1980. In the said suit the defendant No.1 of this case taking specific contention that the suit schedule property belongs to Panchayath. It is further contended that the suit schedule property is part and parcel of gramatana of Pantharapalya. But this defendant - Panchayath was utterly failed to prove that the suit schedule property is gramatana, belong to them and it is part and parcel of 85 OS No. 6490/1998 gramatana of Pantharapalya. On the other hand, in the said suit Court decided that plaintiff - Hemanna was owner of the suit schedule property. Such being the case, I am of the opinion that the defendant No.1 - Panchayath has no right, title and interest over the suit schedule property. The defendants 2 to 16 who are claiming their title and possession over their respective houses through defendant No.1 is not sustainable in law. Therefore, I come to the conclusion that on basis of alleged documents the defendants 2 to 16 have failed to prove their title over their respective houses which are existed in the suit schedule property.
115. Let me see about alternative claim made by the defendants 2 to 16 about alleged plea of adverse possession. As stated above, the defendants 2 to 16 have contended that since more than 50 years from the date of filing of this suit they, their family members and their ancestors are in continuous possession and enjoyment of the suit schedule property without any interference or obstruction by any person or authority and much less by the plaintiff. Hence, they are perfected their title over the suit schedule property by way of adverse possession. As per law the defendant No.2 to 16 have to prove that they are in continuous possession 86 OS No. 6490/1998 and enjoyment of their respective houses in the suit schedule property continuously, without obstruction from anybody and with the knowledge of real owner. They also to show hostile title and communicate it to the real owner.
116. Considering the case of the defendants 2 to 16, I am of the opinion that they are claiming title over the suit schedule property (in respect of their respective houses) by way of adverse possession. This suit filed by the plaintiff against the defendants 1 to 20 for possession of the suit schedule property on the basis of title. The title of the plaintiff - Hemanna has been already established in OS 236/1980. But in the present case it is noticed that including defendants 2 to 16 of the defendants of this case they specifically denied the title of the plaintiffs over the suit schedule property. It is well settled law that without admitting the title of the plaintiffs over the suit schedule property defendants cannot claim plea of adverse possession over the suit schedule property.
117. Further it is noticed that the defendant No.2 to 16 have not firm about who is the owner of suit schedule property. As discussed above they are claiming their title in 87 OS No. 6490/1998 respect of their houses through defendant No.1 that said defendant No.1 has allotted sites to them. But contrary to the same in the present case they are claiming plea of adverse possession in respect of their houses against plaintiffs. Therefore, I am of the opinion that as per law the plea of adverse possession claimed by the defendant No.2 to 16 is not maintainable. In this context I relied upon the decision cited by the plaintiffs side reported in ILR 2006 KARNATAKA 4147 (Supreme Court) (T. Anjanappa and others vs. Somalingappa and another). In the said decision Hon'ble Court held as follows:-
The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position of High Court's judgment is clearly unsustainable.
118. The defendants 2 to 16 have contended that they and their ancestors are in possession and enjoyment of their respective portions prior to the date of filing of suit OS 33/1971. But, I am of the opinion that to prove the said fact the defendants have not produced any documentary evidence 88 OS No. 6490/1998 before this Court. They have also not chosen to examining any other independent witness in support of their case. DW.1 in his cross-examination specifically stated that they have not produced any documents to show that in the year 1950 they are in possession of their respective sites. In the cross- examination of PW.1 has specifically admitted that the defendant No.2 to 16 are in possession of suit schedule property but he has denied that they are in possession of their sites since 50 years.
119. As discussed above documents produced by the defendants 2 to 16 i.e., Hakku Pathras which are issued in the year 1973. Prior to the same to prove the possession of themselves and their ancestors they have not produced any documents. Therefore, I am not accepted the contention taken by the defendants 2 to 16 that they and their ancestors are in possession and enjoyment of their houses prior to filing of OS 33/1971.
120. In para 17 of the written statement defendants 2 to 16 contended that the suit of the plaintiff is barred by time. During the course of arguments the learned counsel for the defendants 2 to 16 submitted that the suit of the plaintiff is 89 OS No. 6490/1998 barred by law. PW.1 in his cross-examination twice stated that in the year 1978-79 the defendant No.1 forcibly took the possession of the suit schedule property. In OS 236/1980 plaintiff has filed I.A. for impleading the defendants 2 to 16 and amendment of plaint for possession of the suit property and mandatory injunction for demolition of the structure put up by the defendants 2 to 16. The plaintiff fully knowing about the defendants 2 to 16 are in possession of the suit property since 1978-79. But this suit filed in the year 1998. hence, as per Article 65 of Limitation Act present suit of the plaintiff is barred by limitation. I have perused the above said contention taken by the defendants 2 to 16 with case on hand. I have also perused the contention taken by the plaintiff. The plaintiff contended that after dismissal of the suit OS 33/1971, the defendant No.1 dispossessed him from the suit schedule property and allotted the sites to the defendants 2 to 16.
121. It is admitted fact that OS 33/1971 filed by the original plaintiff - Hemanna against the defendant No.1 - Pattanagere Group Village Panchayath and defendant No.2 - State. He has filed the said suit for declaration of title and consequential relief of permanent injunction restraining the defendants from interfering in his peaceful possession and 90 OS No. 6490/1998 enjoyment of the suit schedule property. Ex.P-14 is the certified copy of the order dated 20-1-1971 passed in OS 33/1971 by Prl. II Munsiff, Bangalore. At the time of filing of the said suit interim temporary injunction granted till disposal of I.A.No.1. It is restraining the defendants not to cause interference with the plaintiff's peaceful possession and enjoyment of the suit schedule property. Ex.P-15 is the certified copy of the order passed in OS 33/1971 dated 20-7- 1972. Accordingly I.A.No.1 filed by the plaintiff - Hemanna under Order 39 rule 1 and 2 of CPC has been allowed and interim order passed on 20-1-1971 has been confirmed. As per the said order I.A.2 filed by the defendant - Panchayath for vacating temporary injunction order has been dismissed. From the above Ex.P-14 and P-16 (interim orders passed in OS 33/1971) it is clear that the plaintiff - Hemanna was in possession and enjoyment of the suit schedule property. The said suit dismissed on 9-2-1978. It is true that in the pleadings the plaintiff never stated about what is the actual date of dispossession by the defendant No.2. But as stated above PW.1 in his cross-examination stated that in the year 1978-79 their father was dispossessed from the suit schedule property. In the pleadings the plaintiff stated that after 91 OS No. 6490/1998 dismissal of OS 33/1971 the plaintiff was dispossessed by the defendant No.1 forcibly from the suit schedule property. Considering the same I am of the opinion that in the year 1978-79 the plaintiff - Hemanna was dispossessed by the defendant No.1 from the suit schedule property. But this suit for possession filed by the plaintiff in the year 1998. Further I am of the opinion that if the plaintiff dispossessed from the suit schedule property in the year 1978-79 he has to file present suit for possession within 12 years i.e., in the year 1991. But this suit filed in the year 1998 after lapse of about 7 years. Hence, I come to the conclusion that this suit of the plaintiff is barred by limitation under Article 65 of the Limitation Act, 1963.
122. During the course of arguments plaintiff No.1(e)/Advocate of the plaintiffs admitted that they have filed this suit for relief of possession based on established title by virtue of judgment and decree passed in OS 236/1980. In the said suit it has been declared that the plaintiff - Hemanna is the absolute owner of suit schedule property and the same came into operation after automatic annulling of pay order with dismissal of Regular First Appeal RFA No.753/1988 on 28-8-1997 by Hon'ble High Court of Karnataka. Therefore, 92 OS No. 6490/1998 Article 65 of Limitaiton Act would applicable to the case on hand. He further submitted that plaintiff has not filed suit for possession based on prior possession. In support of their case plaintiffs side cited the decision of Hon'ble High Court reported in (2003) 7 SCC 481 (Deva (dead) through L.Rs., vs. Sajjan Kumar (Dead) by L.Rs.,). In the said decision Hon'ble Court held as follows :-
The plaintiff's suit is not merely based on his prior possession and subsequent dispossession but also on the basis of his title to Survey No.452. The limitation for such a suit is governed by Article 65 of the Limitation Act of 1963. The plaintiff's title over the encroached land could not get extinguished unless the defendant had prescribed title by remaining in adverse possession for a continuous period of 12 years.
The plaintiffs side also relied upon the decision of Hon'ble Supreme Court reported in (1998) 1 SCC 614 (Indira vs. Arumugam and another). In the said decision Hon'ble Court held as follows :-
The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title had to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under.
The plaintiffs side also relied upon the decision of Hon'ble High Court Calcutta reported in AIR 1976 Calcutta 55 93 OS No. 6490/1998 (Premendu Bhusan Mondal vs. Sripati Ranjan Chakravaty). In the said decision Hon'ble Court held as follows :-
Article 65 - Suit for possession of a house on basis of title and not on prior possession and dispossession - Art.65 applies and period of limitation of 12 years starts from date when defendant's possession became adverse.
The plaintiff counsel also relied upon the decision of Hon'ble Madras High Court reported in AIR 1976 MADRAS 124 (Bhagavathy Pillai and another vs. Savarimuthu and another).
I have perused the Hon'ble Court decision with case on hand. In this case the plaintiffs have seeking the relief of possession of suit schedule property from the defendants on the basis of title. Therefore, Article 65 of Limitation Act is applicable. The plaintiffs have to file the case within 12 years when the possession of defendants become adverse to them.
123. It is the admitted fact that in OS 236/1980 the plaintiff - Hemanna had filed I.A.No.2 under Order 6 rule 17 of CPC sought for amendment to the prayer column and seeking possession of the suit schedule property and mandatory injunction against the defendant No.2 for demolition of construction put up in the suit schedule property. It is also admitted fact that said application dismissed on merits on 9-4- 94 OS No. 6490/1998 1984. It is also admitted fact that in the very suit the plaintiff
- Hemanna had filed I.A.No.18 under Order 1 rule 10(2) of CPC on 19-11-1984 and prayed for impleading the defendants 2 to 16 of the present case as defendants. In the said application he has contended that the defendants 2 to 16 have already put up construction over respective portion and residing therein. He also admitted that the defendants possession and enjoyment of their respective property as far as back in the year 1984. Basing on the said fact the defendants 2 to 16 side of the present case contended that the suit of the plaintiff is hopelessly barred by limitation.
124. I have perused the above said fact happened in OS 236/1980. It is clear that the plaintiff - Hemanna had filed amendment application in OS 236/1980 on 24-6-1981 and sought for relief of demolition of structures put up by the present defendants 2 to 16 and possession of the same. Therefore, it is clear that in the year 1981 itself the plaintiff very well knowing about the defendants 2 to 16 are in possession and constructed houses in the suit property. After dismissal of said amendment application on 9-4-1984 the plaintiffs ought to have file this suit on or before 1996. But they filed the present suit in the year 1998. Therefore, I come 95 OS No. 6490/1998 to the conclusion that on this count also the suit of the plaintiffs is barred by limitation.
125. As stated above the plaintiffs contended that in view of pendency of the suit OS 236/1980, thereafter dismissal of RFA No.753/1988 on 28-8-1997 they entitled to file suit for possession of the suit schedule property. I am not accepted the above said contention of the plaintiffs side. Because as stated above PW.1 in his cross-examination specifically admitted that during the year 1978-79 the defendant No.1 - Panchayath dispossessed the plaintiff - Hemanna and took the possession of the suit schedule property by way of force. Considering the same, I am of the opinion that thereafter in OS 236/1980 on 24-6-1991 the plaintiff - Hemanna had filed I.A. for amendment of plaint and sought for relief of possession of portion of suit schedule property from the defendants 2 to 16 by way of demolishing the same. That application came to be rejected on 9-4-1984. Considering this aspect I am of the opinion that limitation starts under Article 65 of Limitation Act from 9-4-1984. The plaintiffs have to file this suit within 12 years from that date. But they have filed this suit in the year 1998 which is beyond the period of 12 years. Further I am of the opinion that with 96 OS No. 6490/1998 great respect the decisions cited by the plaintiffs side in this regard are not applicable to the case on hand. Considering all these facts I come to the conclusion that the suit of the plaintiff is hopelessly barred by limitation. Further I come to the conclusion that the defendant No.2 to 16 have failed to prove that they have perfected their right over the suit schedule property by way of adverse possession.
126. The defendant No.17 to 20 contended that they are in possession of the land measuring 100 x 55 feet in property bearing No.200 situated at Pantharapalya village. Government Higher Primary School is running in the said property since 46 years about 331 poor students are studying in 1st standard to 7th standard. They further contended that their property entered in the register extract of Rajarajeshwarinagara CMC, they are paying tax. DW.2 is B.E.O (defendant NO.20) in his examination-in-chief reiterated the above said averments of the plaint. DW.3 - H. Ramaiah, aged about 70 years and DW.4 - Krishnappa, aged about 70 years, who are residents of Pantharapalya village deposed that they were studied in the said school from 1st standard to 4th standard during the year 1947 to 1951. It is noticed that the 97 OS No. 6490/1998 plaintiffs have also not disputed about existence of old school building in the suit schedule property.
127. As discussed above already I come to the conclusion that the defendant No.2 to 16 have failed to prove their plea that they are perfected the title over their respective houses existing in the suit schedule property by way of adverse possession. At the same time further I come to the conclusion that the suit of the plaintiff is hopelessly barred by limitation. From the pleadings oral and documentary evidence of both parties it is proved that the suit schedule property purchased by the original plaintiff - Hemanna through registered sale deed in the year 1959. In the year 1970 the Special Deputy Commissioner for Inam Abolition, Bangalore, registered the name of the plaintiff as occupant in the suit schedule property. It is further decided that in OS 236/1980 the competent Court of law has been decided that the plaintiff
- Hemanna was absolute owner of the suit schedule property. In the said suit the Court has not granted decree of permanent injunction prayed by the plaintiff - Hemanna reasion that during the pendency of the suit he was dispossessed from the suit schedule property. Hence, in the 98 OS No. 6490/1998 present suit the plaintiff prayed for possession of the suit schedule property on the basis of title.
128. As discussed above it has been decided that in the year 1978-79 i.e., after dismissal of the suit OS 31/1971 the plaintiff was dispossessed from the suit schedule property by the defendant No.1 - Panchayath. It is admitted fact that thereafter the defendant No.1 allotted sites to the defendant No.2 to 16 in the year 1973. Accordingly the above said defendant No.2 to 16 are constructed houses and residing in the same. The plaintiffs also have admitted the same. It is also admitted fact that the school building existing in the suit schedule property since 46 years from the date of filing of the present suit. It is the specific contention of the plaintiff that defendant No.2 to 16 have unauthorizedly constructed houses in the suit schedule property. Similarly defendant No.17 to 20 have constructed building legally to an extent of 51 x 22 feet in the suit schedule property. It is pertinent to note that during the construction of houses and school building by the defendant No.2 to 20 original plaintiff - Hemanna or his legal heirs (present plaintiffs of this case) have not objected the same. They have not filed suit or filed application in the pending suit restraining the defendants from constructing 99 OS No. 6490/1998 illegal houses and school building over the suit schedule property. In spite of the same the plaintiff kept mum for long period, now in this suit they are claiming that the defendant No.2 to 20 constructed houses and building illegally and they have to hand over the possession of the same. As discussed above this Court already come to the conclusion that the suit of the plaintiff is hopelessly barred by limitation. Therefore, I come to the conclusion that as per Section 27 of the Limitation Act, 1963 for filing of the present suit by the plaintiffs for possession shall be extinguished. I further of the opinion that even though the defendant No.2 to 16 have failed to prove their title over the suit schedule property by way of adverse possession is not ground to hold that the plaintiffs suit is in time as per Article 65 of the Limitation Act. I am not accepted the contention of the plaintiff that they have prevented to taking steps for possession of the suit schedule property by virtue of interim order passed in RFA No.753/1988. Further, I am of the opinion that pendency of RFA No.753/1988 will not prevent the plaintiff for taking steps for possession of the suit schedule property within time prescribed under Limitation Act. Further I am of the opinion that there is a delay and latches on the part of the plaintiffs for recovery of possession of the 100 OS No. 6490/1998 suit schedule property. Therefore, I answer the additional issue No.3 in the negative and issue No.7 in the affirmative.
129. ISSUE NO.5:- In this suit the plaintiffs prayed for decree for directing the defendants to deliver the possession of the respective portion in their occupation. He also prayed for relief of mandatory injunction to demolish the structure which are put up by the defendants in the suit schedule land, failing which that it may be demolish by way of appointment of Court Commissioner. As discussed above plaintiffs have proved their title over the suit schedule property. They also proved that the defendant No.1 encroached on the suit schedule property after dismissal of suit O.S. No.33/1991. They also proved that during the pendency of the suit proceedings defendant No.1 allotted the sites in favour of defendants 2 to 16 which amounts to lis-pendency. But as discussed above the suit of the plaintiff is hopelessly barred by limitation. For that reason I come to the conclusion that the plaintiffs are not entitle for any reliefs as prayed for. On the other hand the suit of the plaintiffs is liable to be dismissed. From looking into the facts and circumstances of the case there is no order as to costs. Accordingly I answer issue No.5 in the negative and proceeded to pass the following order :- 101 OS No. 6490/1998
ORDER The suit of the plaintiffs is dismissed. No costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript corrected by me, signed and then pronounced by me in open Court on this the 12th day of October, 2017).
(R.Y. SHASHIDHARA), XVI Addl. City Civil & Sessions Judge, BANGALORE.102 OS No. 6490/1998
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFF:-
PW.1 Lakshminarayana H. LIST OF DOCUMENTS MARKED FOR PLAINTIFF:- Ex.P-1 Certified copy of sale deed dt: 6-2-1957 Ex.P-2 Original sale deed dt: 11-7-1959 Ex.P-3 Original sale deed dated 19-8-1959 Ex.P-4 Certified copy of suit dt: 29-8-1934
Exs.P-5 to 8 Tax paid receipts dt: 19-2-1960, 13-8-1959, 19-8-1959 and 9-2-1969 Ex.P-9 Copy of judgment in OS 500/1959 Ex.P-10 Copy of order dt: 27-11-1970 Ex.P-11 Endorsement issued by Dy. Commissioner for Inam Abolition dated 20-1-1971 Ex.P-12 Copy of assessment register extract Ex.P-13 C.C. of order passed in Appeal No.972/1972 Ex.P-14 Cc of order passed in OS No.33/1971(IA-1) Ex.P-15 Cc of order passed in I.A. II in OS 33/1971 Ex.P-16 & 17 Cc of judgment and decree passed in OS 236/1980 Ex.P-18 Cc of order dated 28-8-97 passed in RFA 753/1988 Ex.P-19 Cc of application filed by present defendant No.1 in RFA No.753/1988 Ex.P-20 Cc of stay order passed in RFA No.753/1988 Ex.P-21 Village map of Pantharapalya village. Ex.P-22 to 26 Photos of suit schedule property Ex.P-22(a) to Negatives of Ex.P-22 to 26.
26(a)
Ex.P-27 Cc of order dated 27-11-1970
Ex.P-28 Ndorsement dt: 20-1-1971
Ex.P-29 Cc of judgment in RFA 73/1978
Ex.P-30 Copy of order sheet in OS 236/1980
Ex.P-31 Cc of application in OS 746/1973
Ex.P-32 Cc of counter affidavit in RFA No.111/82
Ex.P-33 Cc of judgment in Civil Appeal No.3348 &-
3349/1990
Ex.P-34 Office copy of legal notice dt: 17-4-2016
Ex.P-34(a) Postal acknowledgment
Ex.P-35 & 36 Two photographs
103 OS No. 6490/1998
Ex.P-35(a) Negatives of Ex.P-35 & 36
and 36(a)
Ex.P-37 Endorsement dated 18-4-1972
Ex.P-38 Cc of written statement
Ex.P-39 Cc of written statement of D-2
Ex.P-40 Cc of written statement
Ex.P-41 Cc of rejoinder
LIST OF WITNESSES EXAMINED FOR DEFENDANT:-
DW.1 Venkataswamy
DW.2 Kempaiah
DW.3 H. Ramaiah
DW.4 Krishnappa
LIST OF DOCUMENTS MARKED FOR DEFENDANT:-
Ex.D-1 to 14 Photographs
Ex.D-15 Plan
Ex.D-16 Cc of demand register extract for the year
1998-99.
Ex.D-17 to 22 Six tax paid receipts dated 1-2-1982,
5-10-1983, 26-4-1984, 10-10-1987, 3-4-
1996 and 8-9-1997.
Ex.D-23 Copy of assessment extract of the year 1997-
98
Ex.D-24 Copy of application
Ex.D-25 Copy of khatha extract
Ex.D-26 Original electricity bill dt: 26-3-2011
Ex.D-27 to 31 Five tax paid receipts dt: 21-3-1989,
10-10-1987, 13-2-1987, 3-4-1996, 8-9-1997 Ex.D-32 Assessment extract dt: 1997-98 Ex.D-33 Copy of registered release deed dt:
30-12-2002 Ex.D-34 Copy of tax paid receipt dt: 9-1-2009 Ex.D-35 Copy of encumbrance certificate from 1-4-2002 to 31-3-2004 Ex.D-36 Copy of encumbrance certificate Ex.D-37 Hakku Pathra dt: 10-8-1973 Ex.D-38 Original license dt: 2-8-1979 Ex.D-39 to 49 11 tax paid receipts dt: 2-2-1983, 3-2-1988, 13-7-1986, 2-2-1984, 13-4-1992, 6-4-1988, 8-1-1986, 15-7-1986, 24-5-1989, 8-4-1996 and 8-9-1997 104 OS No. 6490/1998 Ex.D-50 Assessment extract dated 15-9-1997 Ex.D-51 & 52 Two tax paid receipts for the year 2008-09 & 2009-10 Ex.D-53 Copy of intimation dt: 7-10-2009 Ex.D-54 & 55 Original electricity bills Ex.D-56 & 57 Two tax paid receipts dated 8-4-96 and 8-9-1997 Ex.D-58 Assessment extract dt: 15-9-97 Ex.D-59 to 61 Three tax paid receipts dt: 1-8-1981, 19-8-87 and 26-8-1988 Ex.D-62 Assessment extract dt: 15-9-1997 Ex.D-63 Original tax paid receipt dt: 15-4-2002 Ex.D-64 Electricity bill Ex.D-65 Hakku Pathra dt: 10-8-1973 Ex.D-66 Original license dt: 2-8-1979 Ex.D-67 to 69 Three tax paid receipts dt:8-6-94, 2-4-1996 and 2-9-1997 Ex.D-70 Assessment extract dt: 15-9-97 Ex.D-71 & 72 Electricity bills Ex.D-73 Hakku Pathra dt: 2-8-1979 Ex.D-74 License dt: 2-8-1979 Ex.D-75 to 77 Three tax paid receipts dt: 30-12-94, 3-9-1997 and 4-9-1997 Ex.D-78 Assessment extract dt: 15-9-1997 Ex.D-79 to 82 Four tax paid receipts dt: 3-4-96, 4-9-97, 12-8-2005 and 3-5-2007 Ex.D-83 Assessment extract dt: 15-9-1997 Ex.D-84 Hakku Pathra dt: 10-8-1973 Ex.D-85 License dt: 2-8-1979 Ex.D-86 & 87 Two tax paid receipts dt: 2-4-96 and 4-9-97 Ex.D-88 Assessment extract dt: 15-9-1997 Ex.D-89 Hakku Pathra dt: 10-8-1973 Ex.D-90 License dt: 2-8-1979 Ex.D-91 to 97 7 tax paid receipts dt: 10-2-79, 1-11-85, 10-7-80, 6-9-85, 14-3-89, 10-1-96 and 3-9-97 Ex.D-98 Assessment extract dt: 15-9-1997 Ex.D-99 to 101 Three electricity bills Ex.D-102 Hakku Pathra dt: 10-8-1973 Ex.D-103 License dt: 2-8-1979 Ex.D-104 to 107 Four tax paid receipts dt: 4-4-96, 4-9-97, 17-6-2011 and 16-6-2011 Ex.D-108 & 109 Two acknowledgments dt: 16-6-2011 Ex.D-110 Assessment extract dt: 15-9-1997 105 OS No. 6490/1998 Ex.D-111 & 112 Electricity bills Ex.D-113 Receipt of electricity bill Ex.D-114 Hakku Pathra dt: 10-8-1973 Ex.D-115 License dt: 2-8-1979 Ex.D-116 to 122 Seven tax paid receipts dt: 28-2-1992, 8-6-94, 6-4-96, 2-9-97, 5-2-2001, 9-3-2004, 23-2-2005 Ex.D-123 Assessment extract dt: 15-9-97 Ex.D-124 and Two Electricity bills 125 Ex.D-126 Hakku Pathra dated 10-8-1973 Ex.D-127 & 128 Two tax paid receipts dt: 3-4-96 & 4-9-97 Ex.D-129 Assessment extract dt: 15-9-97 Ex.D-130 Acknowledgment dt: 30-4-2010 Ex.D-131 to 134 Four electricity bills.
Ex.D-135 Hakku Pathra dt: 10-8-1973 Ex.D-136 License dt: 2-8-79
Ex.D-137 & 138 Two tax paid receipts dt: 3-4-96 & 6-9-97 Ex.D-139 Assessment extract dt: 15-9-97 Ex.D-140 Hakku Pathra dt: 10-8-1973 Ex.D-141 License dt: 2-8-1979 Ex.D-142 & 143 Two tax paid receipts dt: 2-4-96 & 4-9-97 Ex.D-144 Assessment extract dt: 15-9-97 Ex.D-145 Acknowledgment dt: 12-5-2011 Ex.D-146 Electricity bill Ex.D-147 o/c of I.A-XI in OS 236/80 Ex.D-148 o/c of IA-18 in OS 236/80 Ex.D-149 Hakku Pathra dt: 10-8-1973 Ex.D-150 to 153 Four tax paid receipts dt: 3-2-1996, 27-11-99, 6-9-2000 & 8-3-2007 Ex.D-154 Hakku Pathra dt: 10-8-1973 Ex.D-155 to 162 Eight tax paid receipts dt: 7-4-2009, 27-11-99, 6-9-2000, 7-2-2002, 23-3-2000, 23-3-2000, 30-1-2002 & 8-3-2007.
Ex.D-163 to Hakku Pathra dt: 10-8-1973 D-165
Ex.D-166 to 178 13 tax paid receipts dt: 14-11-98, 20-9-99, 18-12-2000, 30-1-2002, 11-2-2002, 10-3-2003, nil dated, 19-2-2004, 21-7-2006, 21-7-2006, 21-7-2006, 8-1-2008, 13-10-2009 Ex.D-179 Tax paid receipt dt: 13-11-2009 Ex.D-180 Acknowledgment dt: 13-11-2009 Ex.D-181 Electricity bill 106 OS No. 6490/1998 Ex.D-182 Photo Ex.D-183 Copy of tax assessment extract dt:
23-11-2006
Ex.D-184 Cc of form No.III
Ex.D-185 True copy of valuation slip
Ex.D-186 to 188 Two Photographs with CD
Ex.D-189 Assessment extract
Ex.D-190 Copy of register
(R.Y. SHASHIDHARA),
XVI Addl. City Civil & Sessions Judge,
BANGALORE.
107 OS No. 6490/1998
ORDER
The suit of the plaintiffs is dismissed.
No costs.
Draw decree accordingly.
(Vide Separate judgment)
(R.Y. SHASHIDHARA),
XVI Addl. City Civil & Sessions Judge,
BANGALORE.