Bangalore District Court
Smt. Sunkamma W/O Late vs Sri. C. Madhavan Pillai S/O on 17 December, 2016
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BANGALORE CITY.
PRESENT:
SRI. VENKATARAMAN BHAT, B.Sc.,., LL.B. (Spl.)
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38)
BANGALORE
DATED: THIS THE 17th DAY OF DECEMBER 2016
OS.NO.5327 OF 1995
PLAINTIFF/S 1. SMT. SUNKAMMA W/O LATE
MUNISWAMY REDDY, AGED
ABOUT 62 YEARS. (SINCE
DEAD)
2. SRI. APPAIANNA S/O LATE
MUNISWAMY REDDY,A GED
ABOUT 37 YEARS.
3. SRI. CHINNANNA S/O LATE
MUNISWAMY REDDY, AGED
ABOUT 35 YEARS.
ALL ARE RESIDING AT
DODDABANASAWADI VILLAGE,
KRISHNA RAJAPURAM HOBLI,
BANGALORE SOUTH TALUK.
(By Sri. V.B. Shivakumar, Advocate)
Versus
DEFENDANT/S 1. SRI. C. MADHAVAN PILLAI S/O
GOVINDA PILLAI, RESIDING AT
SUBBAIAHNAPALYA,
BANAWWADI MAIN ROAD,
BANGALORE - 560 033.
2
O.S.No. 5327/ 1995
2. SMT. LAKSHMAMMA W/O
LATE B. PILLA REDDY.
3. SRI. MUNISWAMY REDDY W/O
LATE B. PILL AREDDY.
4. SMT. LAKSHMI DEVI W/O N.
RAMACHANDRAN RESIDING
AT No. 112, DODDIGUNTA,
COX TOWN, BANGALORE.
5. SRI. PUSHPARAJ S/O G.
SUBRAMANI, AGED ABOUT 54
YEARS, RESIDING AT No. 235,
II BLOCK, V.D. MAIN ROAD,
H.B.R. LAYOUT, BANGALORE.
SINCE THE DEFENDANT No.5 IS
DECEASED HE IS REPRESENTED
BY HIS LEGAL REPRESENTATIVES.
5(a) SMT. JANUMA RANI W/O
LATE PUSHARAJ, AGED
ABOUT 60 YEARS.
5(b) SRI. THILAGARAM S/O LATE
PUSHARAJ, AGED ABOUT 38
YEARS.
5(c) SRI. MAHANDRANATH S/O
LATE PUSHARAJ, AGED
ABOUT 30 YEARS.
5(d) SMT. HEMAVATHI, D/O LATE
PUSHRAJ, AGED ABOUT 30
YEARS.
THE DEFENDANTS No.5 (a) TO (d)
ARE RESIDING AT No. 235, 2ND
BLOCK, 5TH 'D'; MAIN ROAD, HRBR
LAYOUT, BANGALROE - 560 043.
3
O.S.No. 5327/ 1995
6. SRI. DEVARAJ S/O DORAIRAJ.
7. SRI. ARMUGHAM S/O
PERUMAL.
8. SRI. JAYAPAL S/O
CHINNAPPA.
9. SMT. BALAMMA W/O
SRIRAMULU.
THE DEFENDANT No.6 TO 9 ARE
MAJORS, AND ALL ARE
RESIDING AT DODDBANASAWADI
VILLAGE, KRISHNA RAJAPURAM
HOBLI, BANGALORE SOUTH
TALUK.
10. SRI. DAMODARAN, MAJOR,
SON OF NOT KNOWN.
11. SMT. YASHODAMMA W/O C.N.
DAMODHARAN.
BOTH ARE RESIDING AT No. 29,
BANASAWADI MAIN ROAD, K.R.
PURAM, BANGALORE.
12. SRI. V. SATYANARAYANA,
MAJOR, SON OF NOT KNOWN
KAMMANAHALLI POST,
BANGALORE SOUTH TALUK.
(Defendants No.2, 4- Exparte.
Defendant No.3 - C.R. Subramanya,
Adv.)
LRs of defendants No.5 (a) to (d) by
Sri. S.N.K. Advocate).
Defendant No.6 to 12 - Exparte)
4
O.S.No. 5327/ 1995
Date of Institution of the 11.08.1995
suit.
Nature of suit Suit for declaration,
possession and permanent
injunction.
Date of commencement of 07.08.2003
recording of evidence.
Date on which judgment 17.12.2016
was pronounced.
Total Duration. Years Months Days
21 04 06
XXXVII ACCJ, BANGALORE
5
O.S.No. 5327/ 1995
JUDGMENT
Plaintiffs filed this suit against the defendants with the following reliefs.
(i) for declaration that the plaintiffs are the absolute owners in possession of plaint B- schedule properties.
(ii) for possession in respect of the portions of the B-Schedule property illegally encroached by the agents, servants or any person claiming through or under the defendants.
(iii) for a permanent injunction restraining the defendants their agents and servants or any person claiming through or under them from interfering or encroaching upon the B- Schedule properties.
2. The brief facts of the case are as follows.
Plaintiffs No.2 and 3 are the sons of plaintiff No.1 (since deceased). Plaintiffs were the owners in possession of the 3 acre 31 gunas in Sy. No. 255 situated at Doddabanasawadi village, K.R. Puram Hobli, Bangalore south Taluk under the registered sale deed dated 17.08.1960 executed by one N. Pillappa. Accordingly, Katha has been changed into the names of plaintiffs. It is submitted that in the year 1975 the defendant No.1, one Pilla Reddy and defendant No.4 had approached the 6 O.S.No. 5327/ 1995 plaintiffs and negotiated for alienation of the lands. Accordingly, plaintiffs have had executed a registered sale deed on 21.04.1975 in favour of defendant No.1 measuring East - 172 ft. West - 192 ft. North - 132 ft. and South - 137 ft. On the same day the plaintiffs had executed a separate sale deed with respect to 22 guntas in favour of one Pilla Reddy who was the husband of defendant No.2 and father of defendant No.3. It is submitted that on the same day the plaintiffs executed a separate sale deed in favour of defendant No.4 towards northern portion of their property measuring East - 240 ft. West - 250 ft. North - 190 ft. and South 180 ft. It is submitted that after selling these portions in favour of defendant No.1 Pilla Reddy, defendant No.4 remaining land measuring 1 acre 31 gutnas has been retained by plaintiffs. The retaining land is shown as plaint B- schedule property. Whereas properties sold in favour of defendant No.1, Pilla Reddy and defendant No.4 are shown as schedule A1 to A3 properties. More particularly the suit schedule property are shown as under.
7
O.S.No. 5327/ 1995 "SCHEDULE A1 TO A3 A-I Portion of Sy. No. 255, measuring East by 172 ft. West by 192 ft. North by 132 ft. and South by 137 ft. of Banasawadi Village, K.R. Pura Hobli, Bangalore South Taluk.
A - II 22 gutnas of land in favou of Pilla Reddy in Sy. No. 255, of Banasawadi Village, K.R. Pura Hobli, Bangalore South Taluk.
A - III Land measuring East by _ 240 ft. West by 250 ft. North by 190 ft. and south by - 180 ft. in Sy. No. 255 of Banasawadi Village, K.R. Pura Hobli, Bangalore South Taluk."
It is the contention of the plaintiffs that there after BDA acquired a portion of properties sold in favour of defendant No.1, Pilla Reddy and defendant No.4 for 100 ft. road. It is alleged that during 1986 the defendants demanded the plaintiffs to leave the vacant portion belonging to the plaintiffs situated on the eastern side of their property. Defendant No.5 (since deceased) had also demanded the plaintiffs to leave the vacant site which the plaintiffs formed house sites. When the plaintiffs refused to meet the demands, the defendants threatened the 8 O.S.No. 5327/ 1995 plaintiffs that they would take action against them. It is alleged that defendants No.1 to 4, their agents, and General Power of Attorney holders in collusion with the revenue officials and Village Panchayat of Banasawadi fabricated some documents and sold the sites by giving bogus site numbers in favour of defendants No.6 to 12 and in favour of 3rd parties. It is submitted that defendant No.12 as purchaser of one of the sites made an attempt to interfere with the possession of plaintiffs over B- schedule property. When plaintiffs objected for the same, defendant No.12 had filed O.S. No. 5604 of 1989 for permanent injunction. Likewise, defendants No.6 and 7 had also filed suits against the plaintiffs. Defendant No.10 to and 11 filed O.S. No. 1190 of 1995 before this Court and obtained an order of injunction. Defendant No.5 had field O.S. No. 424 of 1995 before the City Civil Court, Bangalore in respect of site No. 53 and 47 alleged to be purchased from defendant No.1. It is alleged that the defendants No. 6 to 12 and certain third partiers were said to be purchasers of various sites from defendants no.1 to 5 made an attempt to encroach upon 9 O.S.No. 5327/ 1995 B-schedule property. Under these circumstance, the plaintiffs were constrained to file O.S. no. 767 of 1991 against the defendants No.1 to 5. It is submitted that plaint schedule properties are agricultural lands and plaintiffs did not convert the same into non-agricultural land. It is further submitted that defendants No. 6 to 12 encroached B-schedule property on 11.01.1995, 14.04.1995, 23.03.1995. Under these circumstances, the plaintiffs were constrained to file this suit with the above reliefs.
3. On being summoned except the legal representatives of defendant No.5 and defendant No.3 other defendants remained absent. Accordingly, other defendants were placed exparte.
4. During the pendency of the suit, defendant No.5 is reported to be dead. Defendants No.5 (a) to 5 (d) are legal representatives of deceased No.5. Defendant No.3 filed a separate written statement and denied the plaint allegations. According to this defendant, the suit is 10 O.S.No. 5327/ 1995 barred by limitation. It is submitted that he has purchased 22 gutnas out of 3 acres 31 gutnas in Sy. No. 255 of Banasawadi Village, from plaintiffs under the registered sale deed dated 21.04.1975. It is submitted that out of this 22 gutnas, about 18 ½ guntas was acquired for formation of road by BDA. It is submitted that since plaintiffs joined different cause of action, suit is barred by multifariousness. It is denied that defendant has no encroached B-schedule property. There is no cause of action to file this suit.
5. Legal representative of defendant No.5 filed separate written statement and denied plaint allegations. According to these defendants, plaintiffs had executed a sale deed in favour of their vendor Madhavan Pillai in respect of 1 acre 1½ guntas. It is further submitted that plaintiff had sold 22 guntas in favour of Pilla Reddy. It is further submitted that plaintiffs sold about 18 ½ gutnas in favour of defendant No.4. According to these defendants, retaining land by the plaintiffs is not 1 acre 31 guntas. It is submitted that plaintiffs have formed 11 O.S.No. 5327/ 1995 different house sites and sold in favour of third parties by retaining a portion wherein they constructed house and residing there. It is further submitted that there is no identity of B-schedule property as contended by plaintiffs. According to these defendants, suit schedule property lost their agricultural characteristic and court fee paid. In insufficient. It is contended that defendant No.5 (since deceased) had filed O.S. no. 1758 of 1982 in respect of site No. 53 against plaintiffs for permanent injunction and that suit came to be decreed. Though the plaintiffs had preferred an appeal at R.F.A. No. 86 of 1996, the Hon'ble High Court of Karnataka dismissed their appeal. It is submitted that defendant No.5 was constrained to file O.S. No. 424 of 1995 against the plaintiffs in respect of site No. 53 and 47 for permanent injunction. The trial court partly decreed the suit in respect of site No. 53. Hon'ble High Court of Karnataka in RFA No. 1083 of 2003 decreed the suit in respect of site No. 47 also. It is submitted that the plaintiffs either sold the entire B- schedule property by way of sale or leased out a portion in favour of different persons. It is contended that suit is 12 O.S.No. 5327/ 1995 barred by limitation. On these grounds the legal representatives of the defendant No.5 pray for dismissal of the suit with cost.
6. Out of the above pleadings my predecessor has framed the following issues.
(1) Does the plaintiff prove that they are the absolute owners of the plaint B-schedule property as contended in the plaint?
(2) Does the plaintiff prove that, defendants have encroached over their property illegally, so they are entitled for possession of such portions from the defendants as contended in the plaint?
(3) Does the plaintiff prove that they are in possession of the plaint B-schedule property and defendants are interfering in their possession over the same?
(4) Does the plaintiff prove that, suit is in time? (5) Does the 5th defendant prove that plaint B-
schedule property has lost its agricultural character and no agricultural land is available for the plaintiffs cultivation as contended in the written statement?
(6) Does the 5th defendant prove that there is no identity with regard to actual encroached portion over the plaint B-schedule property? 13
O.S.No. 5327/ 1995 (7) What order or decree?
ADDITIONAL ISSUES (1) Whether defendant No.5 prove that he has purchased the land in Sy. No. 255 measuring 22 guntas on 21.04.1975 for valuable consideration?
(2) Whether defendant No.3 prove that court fee paid by the plaintiff is insufficient?
7. During the pendency of the suit plaintiff No.1 is reported to be dead. Plaintiffs No.2 and 3 being the legal representatives of the deceased plaintiff No.1 are already on record as parties to the suit. During the course of trial, plaintiff No.2 was examined as PW 1 and Ex.P1 to P7, P9 to P16 got marked. Plaintiff No.3 was examined as PW 2. Ex.P8 got marked through PW 2.
8. Defendant No.5 (c) was examined as DW 1 and Ex.D1 to D28 got marked.
9. Heard arguments of learned Advocates for plaintiff and defendant No.3 and legal representatives of defendant No.5 14 O.S.No. 5327/ 1995
10. My findings on the above issues are as under.
Issue No.1 : In negative
Issue No.2 : In negative
Issue No.3 : In negative
Issue No.4 : In affirmative
Issue No.5 : In affirmative
Issue No.6 : In affirmative
Addl. Issue-1: In affirmative
Addl. Issue-2: In affirmative
Issue No.7 : As per final order, for the following.
REASONS
11. ISSUE NO.1 to 3 & 6 and Addl. Issue No.1: For
the sake of convenience and also to avoid repetition of facts, I would like to discuss these issues together. Holding common discussion is necessary since these issues are inter-linked to each other. No prejudice will be caused either to plaintiffs or contested defendants by holding a common discussion.
12. In fact, it is not in dispute that the plaintiffs were the owners in possession of 3 acre 31 guntas in Sy. No. 255, Doddabanasawadi Village, K.R. Puram Hobli, Bangalore South Taluk. Ex.P1 is the certified copy of the registered sale deed dated 17.08.1960. On going through Ex.P1 it discloses that plaintiffs had purchased 3 acre 31 15 O.S.No. 5327/ 1995 guntas in Sy. No. 255 from one N. Pilla Reddy on 17.08.1960. Subsequently Katha has been changed into the names of plaintiffs and mutation has been effected in favour of plaintiffs. Onething is very clear that plaintiffs were owners in possession of entire 3 acres 31 gutnas in Sy. No. 255 situated at Doddabanasawadi Village, K.R. Puram Hobli, Bangalore South Taluk. It can be noticed that on 21.04.1975, plaintiffs had executed a registered sale deed dated in favour of defendant No.1 measuring as shown in the item No.1 of schedule. On the same day, the plaintiffs have executed a separate sale deed with respect to 22 guntas in favour of one Pilla Reddy who was the husband of defendant No.2 and father of defendant No.3. It is also not in dispute that on the same day, plaintiffs had executed a separate sale deed in favour of defendant No.4 as shown in the item no.3 of the schedule. Ex.p2 to P4 are the certified copies of sale deeds executed in favour of defendant No.1, Pilla Reddy and defendant No.4. So one thing is very clear that plaintiffs had sold item No.1 to 3 of the schedule property in favour of defendant No.1, Pilla Reddy and defendant 16 O.S.No. 5327/ 1995 No.4. It is the specific case of the plaintiffs that after selling A1 to A3 schedule properties they retained 1 acre 31 guntas as shown in the B-schedule property. On the other hand, defendant No.3 and legal representatives of defendant No.5 denied the actual possession of retained land by plaintiffs is 1 acre 31 guntas. According to them plaintiffs formed house sites in the remaining land and sold out under different sale deeds in favour of third parties.
13. When the plaintiffs are asserting that B-schedule property is in their possession and enjoyment before the date of the filing of the suit, it is incumbent upon them to prove that they became the owners of 1 acre 31 gutnas in Sy. No. 255. In order to give a finding on this aspect, it is proper to appreciate both oral and documentary evidence placed before this court by the parties. It is pertinent to note that according to plaintiffs, during 1991, defendants made an attempt with the possession of the plaint B- schedule property and they were constrained to file O.S. No. 767 of 1991 against defendants No.1 to 5. Ex.D22 is 17 O.S.No. 5327/ 1995 the certified copy of the plaint in O.S. No. 767 of 1991. Almost the averments of the plaint in O.S. No. 767 of 1991 are one and the same of the present plaint. It is pertinent to note that, the suit schedule property retained by the plaintiffs after selling the portion in favour of defendant No.1, Pilla Reddy and defendant No.4 is shown as land measuring 1 acre 21 gutnas in Sy. No. 255 situated at Doddabanasawadi Village, K.R. Puram Hobli, Bangalore South Taluk. The boundaries of the said schedule are similar with the plaint B-schedule property. If way back in the year 1991, when the plaintiffs being owners of the land retained land measuring 1 acre 21 gutnas, out of Sy. No. 255, they are estopped from contending that the remaining land is 1 acre 31 guntas. According to plaintiffs plaint B-schedule property is measuring 1 acre 31 gutnas. However, there is no convincing and acceptable evidence to remove the discrepancy in the measurement of O.S. no. 767 of 1991 and the measurement as shown in the B-schedule property of the present plaint. More over the plaintiffs have not chosen to produce record of rights pertaining to 18 O.S.No. 5327/ 1995 the B-schedule property. Now a doubt is created as to B- schedule property is measuring 1 acre 31 gutnas or 1 acre 21 gutnas. According to contesting defendants, plaintiffs have sold major portion of remaining land by forming house sites in favour of third parties. In order to establish this fact the defendants have produced documents which are marked as Ex.D8 to D16 and D3. Ex.D18 is the encumbrance certificate for the period commencing from 01.04.1970 till 31.05.1989. On the perusal of Ex.D18 it can be noticed that how the plaintiffs sold portion of remaining land of B-schedule property in favour of third parties. Description are as under.
Sl.No. Date Extent
1. 24.12.1979 1.1 guntas.
2. 26.12.1979 1.1 gutnas
3. 07.01.1980 2.2 guntas.
4. 24.01.1980 1.1 guntas
5. 19.04.1980 1.1 guntas
6. 19.04.1980 1.1 gutnas
7. 20.05.1980 1.1 guntas
8. 29.05.1980 1.1 guntas
14. Even during the pendency of this suit, plaintiffs have sold portion of land of B-schedule property in favour of one Babu Reddy. This is evidenced from 19 O.S.No. 5327/ 1995 Ex.D3. Ex.D3 is the certified copy of the sale deed dated 05.04.2005 by the plaintiffs in favour of one Babu Reddy. So one thing is very clear that the plaintiffs themselves have admitted the extent of B-Schedule property as 1 acre 21 gutnas in O.S. no. 767 of 1991. In other words, it amounts to admission by pleadings. Now the plaintiffs are estopped from contending that the extent of B- schedule property is 1 acre 31 guntas. There is prima facie evidence to show that after selling schedule A1 to A3 properties in favour of defendant No.1, Pilla Reddy and defendant No.4, the plaintiffs have executed several registered sale deeds in favour of third parties. That being the position, it cannot be accepted that still the extent of B-schedule property is 1 acre 31 guntas as on the date of the filing of the suit. As rightly submitted by learned counsel for the legal representatives of defendant No.5 the very identity of the B-schedule property is doubtful.
15. Ex.D1 is the certified copy of the judgment in O.S. no. 1756 of 1982. It can be noticed that defendant 20 O.S.No. 5327/ 1995 No.5 (since deceased) had filed this suit for permanent injunction against the very plaintiffs. After holding the trial this suit came to be decreed. Ex.P6 is the certified copy of the plaint in O.S. No. 424 of 1995. It can be noticed that defendant No.5 (since deceased) had field this suit for permanent injunction against the plaintiffs in respect of the site No.53 and 47 before the City Civil Court, Bangalore. The trial court, partly decreed the said suit in respect of site No.53. Being aggrieved by the said judgment and decree, both the plaintiffs and defendants of that suit preferred RFA No. 1100 / 2003 c/w 1083 of 2003. The Hon'ble High Court of Karnataka by its judgment dated 24.08.2006 allowed the appeal preferred by the plaintiff of that suit and dismissed the appeal filed by defendants of that suit. The suit came to be decree4d both in respect of site No. 53 and 47. Ex.D17 is the certified copy of the judgment of Hon'ble High Court of Karnataka in RFA No. 1100 of 2003 c/w 1083 of 2003. It is pertinent to note that the defendant No.5 (since deceased) had field earlier one suit at O.S. No. 1756 of 1982. As it is already stated this suit came to be decreed. 21
O.S.No. 5327/ 1995 Being aggrieved against the said judgment and decree the plaintiffs of this suit preferred an appeal at RFA No. 86 of 19876. The Hon'ble High Court of Karnataka by its judgment dated 21.02.1986 dismissed the RFA preferred by defendants of that suit and confirmed the decree passed by the trial court. Ex.D20 is the certified copy of judgment in RFA No. 86 of 1986. Of course, the plaintiffs had filed O.S. No. 767 of 1991 against the defendants No.1 to 5 before the City Civil Court, Bangalore. Ex.D22 is the certified copy of the plaint in O.S. No. 767 of 1991. That suit came to be decreed by the trial court. Ex.D23 is the certified copy of judgment in O.S. No. 767 of 1991. It clearly established that the same plaintiffs had urged in O.S. No. 767 of 1991 stating that the extent of B-schedule property is only 1 acre 21 guntas. That being the position, in the absence of any other convincing and acceptable evidence, it cannot be held that the extent of B-schedule property is 1 acre 31 gutnas as on the date of the filing of the suit. The plaintiffs have much relied on Ex.P8. Ex.P8 is the certified copy of the report of the Commissioner, in O.S. 22 O.S.No. 5327/ 1995 No.5604 of 1989 filed by defendant No.12. It can be noticed that ADLR was appointed as Court Commissioner in that suit. ADLR surveyed the property and prepared sketch. Unless, the Commissioner of that suit is examined, Ex.P8 cannot be looked into. Even if Ex.P8 is looked into it discloses that retaining land by the plaintiffs is only 1 acre 21 guntas. That being the position it cannot be upheld the contention of the plaintiffs that B-schedule property is 1 acre 31 guntas till today. Defendants are not claiming any right over the B- schedule property. On the other hand, it discloses that the plaintiffs have already sold major portion of B- schedule property. The alleged interference is not proved by plaintiffs. Ultimately, it leads to hold that the plaintiffs are not the owners of 1 acre 31 guntas as shown in the B-schedule property as on the date of the filing of the suit. In the light of the above discussion, I answer issues No.1 to 3 in negative, issue No.6 in affirmative and additional issue No.1 in affirmative. 23
O.S.No. 5327/ 1995
16. ISSUE No.5 and ADDL. ISSUE No.2: A specific contention has been taken by the legal representatives of the defendant No.5 that the suit schedule properties are not agricultural land and it lost all the features of agricultural land. The learned counsel for the legal representatives of defendant No.5 referred the following decisions.
1. AIR 2011 SUPREME COURT 3590 KHATRI HOTEL PRIVATE LIMITED AND ANOTHER VS. UNION OF INDIA).
2. AIR 2015 SUPREME COURT 3364 (L.C. HANUMANTHAPPA VS. H.B. SHIVAKUMAR).
3. (2010) 3 SUPREME CORUT CASES 214 (R. RAVIDNRA REDDY VS. H. RAMAIAH REDDY AND ANOTHER).
4. 2015 (3) KAR.L.J. 24 SMT. VIJAYALAKSHIMI S. UGAMA BAI AND ANOTHER).
5. ILR 2005 KAR 60 J.M. NARAYANA AND OTHERS VS. CORPORATION OF THE CITY OF BANGALORE).
6. (2007) 5 SUPREME COURT CASES 669 (R. CHANDRASEKHARAN AND OTHERS VS. S. KANAKARAJAN AND OTHERS).
17. There is material to show that a private layout has been formed under the name and style of 'Muniswamy 24 O.S.No. 5327/ 1995 Reddy Layout', Doddabanasawadi Village. It goes to very clear that though there is no conversion order, but private residential sites have been formed and sold in favour of third parties by the plaintiffs, as well as defendants No.1 to 5. Ex.D21 is the private layout plan in respect of the Sy. No. 255 of Doddabanaswadi Village. There is material to show that now suit schedule property is situated within the limits of BBMP. There is material to show that this property is situated within Ward No. 27 of BBMP. But according to the plaintiffs till the suit schedule property is an agricultural land and in the absence of any conversion order, it can be considered as agricultural land. By saying so, it is contended that the court fee paid under Section 7 (2) of the Karnataka Court Fees and Suits Valuation Act is correct. On the other hand, it is the contention of the defendants that since the suit schedule property lost its agricultural features the plaintiffs ought to have paid court fees on the actual market value of the suit schedule properties. It can be noticed that BBMP is collecting the property tax from the house sites formed in Muniswamy Reddy 25 O.S.No. 5327/ 1995 layout. It is not in dispute that the property has been assessed and occupiers of the house sites are paying taxes to BBMP. It is pertinent to note that in O.S.No. 767 of 1991 the same plaintiffs have taken up a contention that the suit schedule property lost its agricultural nature. It is more relevant to extract para 8 (a) of the plaint in O.S. No. 767 of 1991. It is extracted as under.
"8(A). Plaintiffs respectfully submit that the schedule lands were agricultural lands when the plaintiffs conveyed portions of the property to defendants 1, 2 3 out of 3 acres, 31 gutnas, and retained only extent 1 acre 21 gutnas in Sy. No. 255 of Doddabanaswadi Village. the neighbouring lands got converted to residential sites. The entire extent of the lands in Survey No. 255 of Doddabanaswadi lost its character that of agricultural lands. Defendants also converted the lands that they purchased into residential sites. The plaintiff is retaining the schedule lands for their dwelling purposes, sheltering cattles and are doing milk vending business. The State of Karnataka by Housing and Urban Development, issued a Notification incorporating the entire extent of lands in the limits of Bangalore Mahanagara Palike. By the advent of such notification, the schedule lands came within the limits of the Bangalore Mahanagara Palike. The Tahsildar stopped issuing record of rights, and also index of lands towards the lands, thereby the plaintiff have year after the issue of notification, applied to Bangalore Mahanagara Palike for issue of Katha Certificate, and for orders to collect taxes.26
O.S.No. 5327/ 1995
18. On going through the above reading of the plaint in O.S. No. 767 of 1991 it goes to very clear that in the year 1991 itself the suit schedule property lost its agricultural characteristic. It further discloses that the plaintiff stopped the payment of land revenue in respect of the suit schedule property to the Government. Merely because conversion order is not passed on that sole ground it cannot be considered as still the suit schedule property is agricultural land. A private layout has been formed in the year 1975 itself and number of sites sold in favour of third parties. There is material to show that number of residential houses have been constructed in the house sites. The BBMP has started to collect taxes from the house owners. At this stage, it is very useful to refer the judgment of the Division Bench of Hon'ble High Court of Karnataka in J.M. NARAYANA AND OTHERS VS. CORPORATION OF THE CITY OF BANGALORE AND OTHERS reported in ILR 2005 KAR 60. Para 5 and 6 are extracted as under.
27
O.S.No. 5327/ 1995 "5. "We have given out anxious consideration to the submissions made at the Bar. It is not disputed that the suit property stands included within the corporation limits in terms of a notification issued much earlier to the filing of the suit. As a result of such inclusion, the taxes applicable within the Corporation limits would by operation of law and in particular Section 4 sub-section (4) of the Municipal Corporation Act become applicable to the extend3d area also. Even assuming that the land in question was agricultural land before its inclusion in the Corporation limits, the same would not necessarily mean that it either continued to pay land revenue nor would such land be exempted from payment o f property tax under the said Act. As rightly pointed out by Mrs. Patil, Section 110 of the Karnataka Municipal Corporation Act, 1976, exempts the payment of property tax qua only such lands as are registered to be agricultural lands in revenue records of Government and as are actually used for cultivation of crops. Stated conversely just because certain land included in the Corporation limits is registered or used for cultivation purposes would not imply that the said land continues to pay land revenue under the Land Revenue Act. On the contrary, Land Revenue Act, would cease to be applicable no sooner the land is brought within the Corporation limits.
6. There is another angle from which the issue can be viewed. Section 7 of the Karnataka Court Fees and Suits Valuation Act, 1958 creates a legal fiction regarding the market value of lands that form an entire estate or a definite share of an estate are concerned. A closer reading of Section 7 92)(b) would show that not only should the land be an entire estate or a definite share of an estate, but it must be paying annual revenue to the Government. The expression "paying annual revenue to the Government" in Section 7 (2)(b) is significant and in our opinion implies that the liability to pay land 28 O.S.No. 5327/ 1995 revenue must be clear and subsisting one. In case where such liability ceases to exist on account of incorporation of the area within the limits of a Municipal Corporation, the land cannot be said to be paying annual revenue to the Government. That is because the liability to pay any such revenue must be deemed to have ceased from the moment the land is included in the extended Corporation limits."
19. As per the decision of Division Bench liability to pay land revenue ceases to exist on account of incorporation of the same are within the limits of BBMP. Apart from this, in the recent decision reported in 2015 (3) KAR. L.J. SMT. VIJAYALAKSHMI VS. UGAMA BAI AND ANOTHER, the Hon'ble High Court of Karnataka held that if suit properties loosing agricultural characteristic as it found in residential layout it cannot be treated as agricultural property. It is further held that the court fee is required to be paid under Section 7 (a) of Karnataka Court Fees and Suits Valuation Act, 1958, not under Section 7 (b) of the said Act. So looking from any angle it discloses that the suit schedule property lost its character of agriculture. Plaintiffs have paid court fee on the basis of the land revenue. It is pertinent to note that the plaintiffs have not produced RTC with respect to the suit schedule 29 O.S.No. 5327/ 1995 properties. Nothing was prevented the plaintiffs to produce the RTC if suit schedule properties remained as agricultural land. As rightly submitted by the advocate for the defendant No.3 and legal representative of defendant No.5, court fee paid is insufficient and improper and that the suit schedule property lost its agricultural characteristic. Accordingly, I answer issue No.5 and additional issue No.2 in affirmative.
20. ISSUE No.4: It is pleaded that the suit is barred by limitation. The learned counsel for the plaintiffs submitted that the suit is within the period of limitation if Article 58 is read with Section 9 of Limitation Act. On the other hand, the learned advocate for legal representatives of defendant No.5 submitted that in a suit for declaration prescribed period is 3 years from the date of right to sue first accrued and in view of the previous litigation the suit is barred by limitation. I have gone through the entire plaint averments and other materials placed on record. In many decisions it is held that if the plaintiff seeks relief of declaration, possession 30 O.S.No. 5327/ 1995 and other incidental consequential reliefs then Article 50 of the Limitation Act is not attracted and the suit is governed by Article 65 of Limitation Act. Mere denial is not sufficient to commence the cause of action. On the other hand, denial should be accompanied by overt-act by the defendants. On considering the plaint averment and nature of relief sought in the suit, it can be stated that declaratory relief is formal one and recovery of possession is substantial relief sought by the plaintiff. If that is the position, limitation period is 12 years from the date of the dispossession of plaintiff from the suit schedule property. Of course, in O.S. No. 767 of 1991, defendants No.1 to 5 denied the title of the plaintiffs, but it is not known when these defendants filed written statement in the suit. Probably written statement must have been filed in the year 1992. If that period is taken into consideration, the present suit filed during 1995 is within the period of limitation, considering Article 58 of the Limitation Act. That being the position, advocate for legal representatives of defendant No.5 cannot take the assistance of decision reported in AIR 2011 SUPREME 31 O.S.No. 5327/ 1995 COURT 3590 (KHATRI HOTEL PRIVATE LIMITED AND ANOTERH VS. UNION OF INDIA). If this principle is applied to the case on hand, certainly the suit is within a period of limitation. Accordingly, I answer issue No.4 in affirmative.
21. Now, the question for consideration is whether the plaintiffs are entitled for the relief of declaration as prayed. First of all, plaintiffs have failed to prove that they are having title to the entire extent of 1 acre 31 gutnas as on the date of filing of the suit. A finding has already been given to the effect that the plaintiffs were not in actual possession of 1 acre 31 gutnas as shown in the B-schedule property as on the date of the filing of the suit. If the plaintiffs are not able to prove that they were in possession of 1 acre 31 guntas before filing of the suit, question of dispossession by defendants No.6 to 12 does not arise.
22. Defendant No.3 has taken up contention in the written statement to the effect that the suit is bad fro 32 O.S.No. 5327/ 1995 multifariousness. Order I Rule 3 CPC deals with rule of multifariousness. According to defendant No.3, plaintiffs have joined different defendants and united several causes of action in one suit. Of course, no issue has been framed on this plea, though defendant No.3 has taken up this stand before settlement of issues. According to plaintiffs, defendants No.6 to 12 encroached B-schedule property on 11.01.1995, 23.02.1995, 14.04.1995. It is not known which defendants encroached to what extent on 11.01.1995, 23.02.1995 and 14.04.1995. There is no pleadings to the effect that several cause of action have been arisen out of the same transaction or series of transactions. Learned advocate for defendant No.3 referred the following decisions on this aspect.
1. AIR 1974 PUNJAB AND HARYANA 276 (SANT SINGH AND OTHERS VS. DES RAM AND OTHERS).
2. AIR 1971 ALLAHABAD 501 (KALI CHARAN VS. GANESH PRASAD AND ANOTHER).
3. AIR 2016 MADHYA PRADESH 188 (HALKA KUSHWAHA VS. PYARELAL KACHHI).
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23. It has come in evidence of PW 1 that he is not aware which defendant encroached, to what extent. On the other hand, a general allegation is made against the defendants No. 6 to 12 to the effect that defendants No.1 to 5 colluding with officials of Doddabanaswadi Panchayta, created some documents and sold house sites by giving bogus numbers. Mere pleadings is not sufficient to upheld this contention. It discloses that plaintiffs were not aware which defendant encroached to what extent. It is not known when these defendants encroached the B-schedule property. The Hon'ble High Court of Punjab and Haryana in AIR 1974 PUNJAB AND HARYANA 276 (SANT SINGH AND OTHERS VS. DES RAM AND OTHERS) held as under.
"(A) Where the plaintiff alleges that the respondents are trespassers, each one would be answerable for his own act of trespass which would have nothing to do with the trespass which h is co-respondents might be known to have indulged in. Therefore, the right to relief alleged exists not out of the same but different acts and transactions. The suit is multifarious and not permitted under R.3."
24. Order II Rule 3 CPC contemplates joining of several causes of action. But in the case on hand, a separate 34 O.S.No. 5327/ 1995 cause of action arose against each defendant. In the absence of any clear pleadings in the plaint, I find considerable merit in the submission of the advocate for the defendant No.3 that the suit is bad for multifariousness. Though no issue has been framed on this aspect, a finding has been given on this plea.
25. The learned advocate for legal representatives of defendant No.5 submitted that plaintiffs have played fraud upon the court and filed a false suit. He referred one decision reported in (2005) 4 SUPREME COURT CASES 605 MCID VS. STATE OF DELHI AND ANOTHER). The Hon'ble Supreme Court in this decision held that the person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. In the case on hand, plaintiffs have concealed material facts It is contended that plaintiffs were in possession of 1 acre 31 guntas as shown in the B-schedule property and sought for recovery of the same. Since plaintiffs have failed to prove their case, it is just and proper to dismiss 35 O.S.No. 5327/ 1995 the suit with cost. Plaintiffs are not entitled for any relief as prayed in the suit.
26. In the result, I proceed to pass the following:
ORDER Suit is dismissed, with cost.
(Dictated to the Judgment Writer Online, corrected and then pronounced by me in open court, this the 17th DAY OF DECEMBER 2016) (VENKATARAMANA BHAT) XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BANGALORE ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 Sri. Appaianna PW2 Sri. Chinnanna Reddy
Documents marked on behalf of the plaintiff/s:
Ex.P1 - Certified copy of sale deed dated 17.08.1960 Ex.P2 Certified copy of sale deed dated 21.04.1975 Ex.P3 Certified copy of sale deed dated 21.04.1975 Ex.P4 Certified copy of sale deed dated 21.04.1975 Ex.P5 Certified copy of plaint in O.S. No. 5604/1989 Ex.P6 Certified copy of plaint in O.S. No. 424/1995 Ex.P7 Tax paid receipt Ex.P8 Certified copy of Commissioner report in O.S. No. 5604/1989.
Ex.P9to11 Photographs
Ex.P12 Record of Rights
Ex.P13 Settlement Akarband
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Ex.P14 Certified copy of sale deed dated 10.06.2011
Ex.P15 Sale Deed
Ex.P16 Sale Deed of No 717/75-76 dated 22.05.75.
List of witnesses examined on behalf of the Defendant/s:
DW1 Sri. Mahendranath DW2 Sri. P. Muniswamy Reddy
Documents marked on behalf of the Defendant/s:
Ex.D1- Certified copy of judgment of OS
No.1756/1982
Ex.D2- Certified copy of decree
Ex.D3- Certified copy of sale deed
Ex.D4- Electricity Bill
Ex.D5- Certified copy of encumbrance certificate
Ex.D6- Certified copy of sale deed
Ex.D6(a) Typed copy
Ex.D7- Certified copy of GPA dated02.05.1988
Ex.D7(a) Typed copy
Ex.D8- Certified copy of registered sale deed dated
24.12.1979.
Ex.D8(a) Typed copy
Ex.D9- Certified copy of sale deed .
Ex.D9(a) Typed copy
Ex.D10- Certified copy of sale deed
Ex.D10(a) Typed copy
Ex.D11- Certified copy of sale deed
Ex.D11(a) Typed copy
Ex.D12 Certified copy of sale deed
Ex.D12(a) Typed copy
Ex.D13 Certified copy of sale deed
Ex.D13(a) Typed copy
Ex.D14 Certified copy of sale deed
Ex.D14(a) Typed copy
Ex.D15 Certified copy of sale deed
Ex.D15(a) Typed copy
Ex.D16 Certified copy of sale deed dated 07.01.1980
Ex.D16(a) Typed copy
Ex.D17 Certified copy of Judgment in RFA No.1100 of
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O.S.No. 5327/ 1995
1991
Ex.D18 Certified copy of Encumbrance Certificate Ex.D19 Certified copy of Encumbrance Certificate Ex.D20 Certified copy of judgment in RFA No.86 of 1986 Ex.D21 Rough Sketch Ex.D22 Plaint copy Ex.D23 Certified copy of judgment in O.S.767/91 Ex.D24 Certified copy of decree in OS 767/91 Ex.D25 Plan Ex.D26 Copy of judgment Ex.D27 Copy of decree Ex.D28 Certified copy of sale deed.
XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BANGALORE.38
O.S.No. 5327/ 1995 Judgment passed and pronounced in the open court (vide separate judgment). The operation portion of the order reads thus -
ORDER Suit is dismissed, with cost.
XXXVII ACCJ, (CCH-38)