Karnataka High Court
Smt Muniyamma W/O Late Sri Thammaiah vs Sri Joseph Thyaraja on 15 December, 2023
1 RFA NO. 7/2011
C/W RFA NO. 1684/2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE C.M.JOSHI
REGULAR FIRST APPEAL NO. 7/2011 (INJ)
C/W
REGULAR FIRST APPEAL NO. 1684/2010 (DEC/INJ)
IN R.F.A. NO. 7 OF 2011
BETWEEN:
1 . SMT. MUNIYAMMA,
W/O LATE SRI THAMMAIAH,
AGED ABOUT 31 YEARS.
2 . SRI ABBIGA,
S/O LATE SRI THAMMAIAH,
AGED ABOUT 31 YEARS.
3 . SRI VENKATESH,
S/O LATE SRI THAMMAIAH,
AGED ABOUT 27 YEARS.
ALL ARE R/AT NO.45,
5TH CROSS, RACHAPPA GARDEN,
SHANTHI NAGAR, BANGALORE.
AND REPRESENTED BY THEIR
POWER OF ATTORNEY HOLDER,
SRI NAGARAJA SHETTY.
2 RFA NO. 7/2011
C/W RFA NO. 1684/2010
S/O SRI VITTAL SHETTY,
AGED ABOUT 39 YEARS,
R/AT NO.7/7,NEAR PETROL BUNK,
DEVEGOWDA ROAD, R T NAGAR,
BANGALORE- 32.
...APPELLANTS
(BY SRI B N PRAKASH, ADVOCATE)
AND:
1 . SRI JOSEPH THYAGARAJ,
S/O LATE SRI THOMOSAPPA,
AGED ABOUT 58 YEARS,
R/OF EERANAPALYA,
ARABIC COLLEGE POST,
BANGALORE NORTH,
BANGALORE -45.
2 . SRI SAMPATH,
S/O LATE SRI THAMMAIAH,
AGED ABOUT 24 YEARS,
NO.45, 5TH CROSS, RACHAPPA GARDEN,
SHANTHINAGAR, BANGALORE-27.
3 . SMT. SAMPALAKSHMI,
D/O LATE SRI THAMMAIAH,
AGED ABOUT 20 YEARS,
NO.45, 5TH CROSS, RACHAPPA GARDEN,
SHANTHINAGARA, BANGALORE-27.
...RESPONDENTS
(BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI JANARDHANA G, ADVOCATE FOR R1;
SRI K.SUMAN, SENIOR COUNSEL FOR SRI B.SIDDHARTH
SUMAN, ADVOCATE FOR PROPOSED R-4;
R-2 AND R-3 ARE SERVED AND UNREPRESENTED)
3 RFA NO. 7/2011
C/W RFA NO. 1684/2010
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 04.10.2010 PASSED IN
O.S.15433/2004 ON THE FILE OF THE XIII-ADDL. CITY CIVIL
JUDGE, MAYO HALL UNIT, BANGALORE, DECREEING THE SUIT
FOR THE PERMANENT INJUNCTION.
IN R.F.A. NO. 1684 OF 2010
BETWEEN:
JOSEPH THYAGARAJ,
S/O LATE THOMASAPPA,
AGED ABOUT 58 YEARS,
R/AT.NO.4/5, 4TH CROSS, HUTCHINS
ROAD, ST. THOMAS TOWN POST,
BANGALORE-560 084
...APPELLANT
(BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
SRI JANARDHANA G, ADVOCATE)
AND:
NAGRAJ SHETTY,
S/O.VITTAL SHETTY,
AGED ABOUT 38 YEARS,
SRI NEELARATHI BUSINESS CENTER,
NO.7/7, NEAR PETROL BUNK,
R T NAGAR POST,B
BANGALORE-560 032.
...RESPONDENT
(BY SRI B.N PRAKASH, ADVOCATE FOR R-1,
SRI K. SUMAN, SENIOR COUNSEL FOR SRI SIDDHARTH
SUMAN, ADVOCATE FOR PROPOSED R-2)
THIS RFA IS FILED U/S 96 R/W, XLI R-1 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 24.09.2010 PASSED IN
O.S.4315/2006 ON THE FILE OF THE XVII-ADDL. CITY CIVIL
JUDGE, (CCH-16), BANGALORE CITY, DISMISSING THE SUIT
FOR DECLARATION AND INJUNCTION.
4 RFA NO. 7/2011
C/W RFA NO. 1684/2010
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD
AND RESERVED ON 24.08.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, C.M.JOSHI J.,
DELIVERED THE FOLLOWING:
JUDGMENT
RFA No.7/2011 is preferred by the defendant Nos.1(a) to (c) (LRs of deceased Thammaiah) in OS No.15433/2004 against the judgment and decree passed by the learned XIII Additional City Civil Judge, Mayo hall Unit, Bangalore, dated 04-10-2010, whereby the suit filed by the plaintiff- Joseph Thyagaraj for permanent injunction in respect of the suit schedule land bearing Sy.No.50/4 measuring 25 guntas situated at Nagavara Village, Bangalore North Taluk came to be decreed.
2. RFA No.1684/2010 is preferred by the plaintiff- Joseph Thyagaraj in OS No.4315/2006 against the judgment and decree passed by the learned XVII Additional City Civil Judge, Bangalore, dated 24-09-2010, whereby the 5 RFA NO. 7/2011 C/W RFA NO. 1684/2010 suit filed by the plaintiff for declaration and permanent injunction in respect of the land bearing Sy.No.50/4 measuring 25 guntas situated at Nagavara Village, Bangalore North Taluk came to be dismissed with costs.
3. O.S.No.4315/06 being for declaration and injunction has the wider scope than the O.S. No.15433/2004 which is for bare injunction. The contentions of the plaintiff in both the suits are same. Therefore the parties would be referred as per their ranks in the declaration suit -OS No.4315/2006.
4. The brief facts of the case of the plaintiff Joseph Tyagaraj in OS No.4315/2006 (RFA No.1684/2010) are as below:
(a) The plaintiff's grandfather Dravidappa was the absolute owner of the suit schedule property i.e., survey No.50/4 along with various other properties. It is averred in the plaint that probably the said Dravidappa and his brother 6 RFA NO. 7/2011 C/W RFA NO. 1684/2010 Chinnappa entered into an oral partition and the suit schedule property was allotted to the share of Chinnappa. The said Chinnappa had no issues and therefore, he had adopted the father of the plaintiff Thomasappa, after his marriage with the daughter of Dravidappa.
(b) It is stated that after the death of Chinnappa, all the properties in the name of Chinnappa devolved upon the father of the plaintiff Thomasappa. In the year 1972, there was a partition between the plaintiff, his father and brothers concerning all the properties of the family including Survey No.50/4.
(c) There were certain errors in the said partition deed and therefore, there was a rectification deed in the year 1988. By virtue of the said rectification deed, property which was shown as Survey No.50/2 was rectified to be Survey No.50/4.7 RFA NO. 7/2011
C/W RFA NO. 1684/2010
(d) In the meanwhile, BDA had acquired the suit schedule property for the purpose of formation of the layout by Vyalikaval House Building Cooperative Society. It is stated that, about 18 guntas of the part of the suit survey number was owned by the vendor of the defendant i.e., Thammaiah and he had interfered in the possession and enjoyment of the property of the plaintiff and therefore, he(Thammaiah) filed O.S. No. 15433/2004 for injunction.
(e) It was stated that the property which was owned by Thammaiah was acquired for the Vyalikaval House Building Cooperative Society and it was allotted to others. It was also contended that the said Thammaiah has also formed certain sites in the 18 guntas of land in Survey No.50/4 and has sold the same.
(f) It was stated that the northern portion of the suit survey number was vacant and he 8 RFA NO. 7/2011 C/W RFA NO. 1684/2010 mislead the defendant and sold another 18 guntas to the defendant on 6-1-2006 under the registered sale deed. Therefore, he contends that though Thammaiah was not owner to the extent of 18 guntas, he has sold the same to the defendant. Now the defendant is obstructing the enjoyment and therefore, he was constrained to file the suit.
(g) By way of insertion of para 3A to the plaint, it was contended that, the Supreme Court has confirmed the orders passed by the High Court of Karnataka in W.A. 2286/97 to 2336/97 and connected matters on 15.03.2000, wherein the notification issued by the Government for acquisition of the property for the purpose of formation of Layout by Vyalikaval Housing Society has been quashed. It was also ordered to return the lands acquired, including the lands of the plaintiff to the respective land owners. 9 RFA NO. 7/2011 C/W RFA NO. 1684/2010
(h) In addition to that, it was stated that the grandfather of the vendor of the defendant i.e., K.Muniswamy, was also the original owner of the land bearing Sy.No.50/2, new No.50/4 to the extent of 25 guntas. In the year 1923, the said K. Muniswamy had mortgaged the property to Dravidappa, and later, brother of K. Muniswamy i.e., Tirumallappa had sold his share of 25 guntas in Survey No.50/2 to Dravidappa in the year 1930. It was contended that K. Muniswamy has not redeemed the mortgaged property and therefore, he had lost all his right, title or interest in the property.
5. On these grounds also plaintiff contended that the defendant who is the purchaser from Thammaiah is not entitled for any land in the said survey number and the cause of action for the suit arose when the defendant alleged to have purchased the land in Sy.No.50/4 from Thammaiah on 6/1/2006 and on the last week of 2006 10 RFA NO. 7/2011 C/W RFA NO. 1684/2010 when he tried to interfere with the possession of suit schedule property. On these grounds the plaintiff sought:
a. declaration that the sale deed dated
06.01.2006 executed by Thammaiah, his wife and children in favour of defendant in respect of 18 guntas in Sy.No.50/4 is null and void after holding plaintiff is absolute owner of the suit schedule property.
b. Permanent injunction restraining the defendant from interfering in the plaintiffs possession and enjoyment of the suit property.
c. permanent injunction restraining the defendant from alienating any portion of Sy.No.50/4 including the suit schedule property.
d. To declare lands belonging to
Thammaiah in Sy.No.50/2, New No.50/4
measuring 25 guntas were mortgaged to the plaintiff's grandfather and he has no title in the same.
6. It is obvious that prayer 'a' above is couched with two declarations. It includes declaring the sale deed in 11 RFA NO. 7/2011 C/W RFA NO. 1684/2010 favour of the defendant is null and void and to declare the title of the plaintiff to suit schedule property.
7. On issuance of summons by the trial Court, the defendant Nagaraj Shetty, appeared through his counsel and filed his written statement denying the plaint averments and contending that he is not aware of Dravidappa being the absolute owner of several properties including the suit schedule property and the partition between Dravidappa and Chinnappa; he is unaware of the relationship between the plaintiff, his father Thomosappa and his adopted father, Chinnappa; the partition dated 28-2-1972 and the rectification deed thereof. The defendant denies that in the said partition survey No.50/4 had come to the share of the plaintiff. He contended that his vendor Thammaiah had succeeded to suit survey No.50/4 by succession. He states that survey No.50/4 measuring 1 acre 07 guntas, including 02 guntas of Karab was owned by Munivenkatappa, the father of Thammaiah. 12 RFA NO. 7/2011 C/W RFA NO. 1684/2010 After death of Munivenkatappa, the name of Thammaiah is shown in the records till the year 1979-80 and thereafter, the name of the plaintiff is shown for 25 guntas. He pleads ignorance as to how the name of the plaintiff is entered in revenue records in Survey No.50/4 and therefore, contended that the plaintiff be put to strict proof of his contentions. It is contended that the partition deed or the rectification deed do not confer any title of survey No.50/4 on the plaintiff or his ancestors. It is contended that 27 guntas in survey No.50/4 was acquired by the Government for the benefit of Vyalikaval House Building Society and therefore, even assuming for the sake of arguments that the plaintiff was the owner of 25 guntas, it has been acquired by the society.
8. Defendant further contended that he had purchased the property measuring 18 guntas in survey No.50/4 from Thammaiah with specific boundaries in the registered sale deed dated 6-1-2006 and he is in possession 13 RFA NO. 7/2011 C/W RFA NO. 1684/2010 and enjoyment of the same. It was further contended that the defendant is a bonafide purchaser of the said property without notice of any encumbrance and also that the schedule mentioned in the sale deed in favour of the defendant is different from the one claimed by the plaintiff in O.S.No.15433/2004. It is stated that out of 01 acre 07 guntas in survey No.50/4, 27 guntas was acquired for Vyalikaval House Building Society and out of the remaining portion, 18 guntas has been purchased by the defendant from Thammaiah resulting in the claim of the plaintiff futile and not maintainable. Thus, it was contended that the plaintiff is neither the owner nor in possession of survey No.50/4 and the question of the defendant interfering in the possession of the plaintiff does not arise.
9. Further by way of additional written statement, in view of amendment of plaint by the plaintiff as per order dated 26.3.2008, the defendant contended that at no point of time the survey No.50/2 has been changed as survey 14 RFA NO. 7/2011 C/W RFA NO. 1684/2010 No.50/4. The defendant has contended that he is not aware of the outcome of the writ petitions, writ appeals and the order passed by the Apex Court in the Civil Appeal. The defendant further denied that 25 guntas in the suit schedule property held by Thirumalappa was mortgaged in favour of Dravidappa in the year 1923 and later, a portion of it was sold by Thirumalappa to Dravidappa and rest of the mortgaged property was not redeemed. Re: OS No.15433/2004
10. Most of the contentions in this suit are similar contentions taken up by the plaintiff-Joseph Tyagaraj. In this suit also, he contends that his grandfather Dravidappa was the absolute owner of various properties including 25 guntas of survey No.50/4 situated at Nagavara Village, Kasaba Hobli, Bangalore North, Bangalore and the plaintiff inherited the property from his father Thomasappa under a Partition in the year 1972 and the rectification deed 1980. 15 RFA NO. 7/2011 C/W RFA NO. 1684/2010
11. The defendants who are the wife and children of Thammaiah, have no manner of right, title or interest over the suit schedule property and they tried to interfere with his possession over the same. Hence, the plaintiff filed the suit seeking a decree of permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the suit schedule property. The suit schedule property is described to Survey No.50/4 measuring 25 guntas, of Nagavara village. It was alleged that defendant made efforts to encroach upon the property belonging to the plaintiff by misrepresenting to the public and tried to sell the suit schedule property to others and as such, the defendants need to be restrained by a perpetual injunction from interfering with the plaintiff's possession over the suit schedule property.
12. On issuance of summons by the trial Court, the defendant-Thammaiah appeared through his counsel and filed written-statement contending that the suit of the 16 RFA NO. 7/2011 C/W RFA NO. 1684/2010 plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed in limine as the plaintiff is neither the owner nor in possession of the suit schedule property; and neither the plaintiff nor his father nor his grandfather had any right over the suit schedule property bearing Sy No.50/4 at any point of time. Further, it was contended that Sy.No.50/4 measuring 1 Acre 5 guntas situated at Nagavara Village, is the ancestral property of the defendant and he has succeeded to the said property by way of succession and the Record of Rights disclose that Survey No.50/4, measuring 1 Acre 7 guntas including 2 guntas of Kharab land belonged to one Munivenkatappa, the fatter of the defendant. After the death of Munivenkatappa, the defendant's name is shown in the record of rights. The plaintiff has created revenue records regarding the property belonging to the defendant and therefore, neither the Partition Deed nor the Rectification Deed confer any right on the plaintiff in respect of Survey No.50/4. It was further contended that the Government has 17 RFA NO. 7/2011 C/W RFA NO. 1684/2010 acquired the property bearing Survey No.50/4 measuring 27 guntas for the benefit of Vyalikaval House Building Co-operative Society and the said Society was put in possession pursuant to the acquisition proceedings and the plaintiff has created RTC in collusion with the Revenue authorities and he has no locus-standi to file the above suit and at no point of time, the plaintiff was in possession of Survey No.50/4 and as such, there is no cause of action for the suit and hence, the suit is liable to be dismissed with exemplary costs.
13. During the pendency of the suit, the original defendant Thammaiah died and his LRs have been brought on record. The LRS of the defendant have also filed written- statement on the same contentions as taken by the original defendant.
14. In O.S.No.4315/2006 the following issues are framed by the trial Court:
18 RFA NO. 7/2011C/W RFA NO. 1684/2010
"1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether the plaintiff further proves that Sale Deed dated 6.1.2006 under which the defendant said to have purchased the property measuring 18 guntas in Sy.No.50/4 is not binding on him?
3. Whether the defendant proves that they purchased the Schedule property on 6.1.2006 from Muniyamma and others?
4. Whether the plaintiff proves that defendants are interfering with the peaceful possession and enjoyment of the suit schedule property?
5. Whether the plaintiff is entitled for the relief sought for?
6. What Order or Decree?"
15. In support of his case, plaintiff examined himself as PW1 and Exs.P1 to P27 were marked in evidence. On behalf of the defendant, he got himself examined as DW1 and Exs.D1 and 2 were marked in evidence. The trial Court after hearing both the parties, answering issue Nos.1, 4, 5 and additional issue no. 1 and 2 in negative and issue No.3 in affirmative dismissed the suit of the plaintiff with costs 19 RFA NO. 7/2011 C/W RFA NO. 1684/2010 and directed to draw the decree after payment of Court fee of Rs.1,50,050/-.
16. In O.S.No.15433/2004 the following issues are framed by the trial Court:
"1) Whether the plaintiff' prove his lawful possession and enjoyment over the suit schedule property, as on the date of the suit?
2) Whether the plaintiff proves the alleged obstructions from the defendants?
3) Whether the plaintiff is entitled to the relief claimed?
4) What decree or Order?"
17. In support of his case, the plaintiff Joseph Thyagaraj examined himself as PW1 and Exs.P1 to P20 were marked in evidence. On behalf of defendants, power of attorney holder Nagaraj Shetty was examined as DW1 and Exs.D1 to D14 were marked.
18. The trial Court after hearing both the parties, answering issue Nos. 1 to 3 in the affirmative, decreed the 20 RFA NO. 7/2011 C/W RFA NO. 1684/2010 suit of the plaintiff against the defendants with costs and defendants were restrained by way of permanent injunction from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property in any manner.
19. Being aggrieved by the said judgments and decrees passed by the trial Court in OS No.15433/2004 and OS No.4315/2006, the defendants and plaintiff have presented RFA No.7/2011 and 1684/2010 respectively before this Court as stated supra.
20. O.S.No.4315/2006 being a suit for declaration of title, has wider scope and as such, we would address the said appeal in length. O.S.No.15433/2004 being a mere suit for injunction, would depend on the findings in OS No.4315/2006 (RFA No.1684/2010).
21. In RFA No.1684/2010, the appellant/plaintiff contend that when the appellant/plaintiff has produced the documentary evidence showing the mortgage dated 21-5- 21 RFA NO. 7/2011 C/W RFA NO. 1684/2010 1923 as per Ex.P10 to show that the owner Kashi Muniswamy had mortgaged the property to grandfather, Dravidappa, and thereafter, it was never redeemed within the prescribed period and even thereafter, the mortgagee had become owner of the same and then in the year 1972 the appellant and other family members had partitioned the properties, the appellant had shown the flow of title in respect of the suit schedule property to him by valid and reliable documents, the trial Court erred in dismissing the suit. Thereafter, the revenue entries were made within the knowledge of the vendor of the defendant Thammaiah, who had not at all raised any objection for such revenue entries. It is also contended that the documents of the year 1923 and 1930 are more than 30 years old and presumption should have been drawn by the trial Court. It is contended that the trial Court failed to note the boundaries that are depicted in the documents produced by the plaintiff. It is contended that when the defendant had admitted that the name of the plaintiff was entered for 25 guntas and the 22 RFA NO. 7/2011 C/W RFA NO. 1684/2010 name of Thammaiah was entered for 20 guntas, out of which, 18 guntas was sold to the defendant, it clearly establish that the defendant had not acquired any right in the same as Thammaiah had sold his 20 guntas much earlier to the purchase of the defendant. It is contended that the trial Court erred holding that the Land Acquisition documents should have been produced by the plaintiff when the deposition of the appellant/plaintiff and RTC showed that the land was notified for acquisition. It is contended that the trial Judge seriously erred in holding that the sale deed dated 6-1-2006 cannot be questioned by the plaintiff without making the author of the document i.e., Thammaiah as a party to the suit. Thus, the appellant has contended that the findings of the trial Court are totally erroneous and not sustainable under law.
22. In RFA No.7/2011, the appellants/defendants contend that the plaintiff Joseph Tyagaraj has filed a suit for declaration and injunction, which is for comprehensive 23 RFA NO. 7/2011 C/W RFA NO. 1684/2010 relief and in the light of the conclusions reached in the said suit, the present suit for injunction should have been dismissed. They contend that there are no documents to establish the title of the plaintiff to the suit schedule property and the trial Court failed to notice that even the contention of the possession of the plaintiff over the suit schedule property was not proved by him. The plaintiff was claiming the title and tracing the same to the year 1923 on the basis of the mortgage deed, which was in respect of survey No.50/2 and therefore, the claim of the plaintiff over survey No.50/4 was totally misplaced and he had failed to establish his possession over the suit schedule property. It is contended that the trial Court having noticed that the land was acquired by the Government for the benefit of the Vyalikaval House Building Society, it could not have held that the property was in possession and enjoyment of the plaintiff. It is contended that the judgment of the Apex Court in respect of quashing of the Notification was not pertaining to the suit schedule property and there is no 24 RFA NO. 7/2011 C/W RFA NO. 1684/2010 evidence to show that the suit schedule property was restored to the possession of the plaintiff. It is contended that the reliance on the tax paid receipts by the trail Court was not proper as it was after filing of the suit. It is also contended that the revenue records subsequent to the rectification deed were not at all relevant and the trial Court has erroneously placed reliance on the same. Therefore, the appellants/ defendants have sought for dismissal of the suit.
23. On issuance of notice in both the appeals, the contesting respondents have appeared through their counsel.
24. The trial Court records have been secured. The suit schedule property in both the suits and appeals being one and the same, these appeals are heard together.
25. We have heard the arguments by Sri Ashok Harnahalli, learned Senior Counsel appearing for Sri G. Janardhana, the counsel on record for the 25 RFA NO. 7/2011 C/W RFA NO. 1684/2010 appellant/plaintiff in RFA No.1684/2010 (Respondent No.1 in RFA No.7/2011) and the learned counsel Sri B.N. Prakash for respondent No.1 ( Appellant in RFA No.7/2011) and Sri K.Suman, learned Senior Counsel for Sri Siddharth Suman, the counsel on record for proposed respondent No.2 in RFA No.1684/2010 (proposed respondent No.4 in RFA No.7/2011).
26. During the pendency of these appeals, several interim applications are filed seeking temporary injunction, stay, production of the documents etc. The appellant filed IA seeking temporary injunction and even after an order of status-quo was ordered, the appellant submitted that the vegetation was being cleared and certain civil works are being carried out. Therefore, a Receiver was appointed by this Court to maintain the status-quo over the suit property.
27. During the pendency of these appeals, M/s. Vyalikaval House Building Co-operative Society Limited, has approached this Court seeking impleadment as 26 RFA NO. 7/2011 C/W RFA NO. 1684/2010 respondent No.2 in RFA No.1684/2010 by filing application under order 1 Rule 10 CPC. The affidavit filed by President of the said Society states that the plaintiff has filed the suit by urging various baseless and false contentions but however, the acquisition of the land was admitted by him. It is submitted that the notification issued pertaining to survey No.50/4 was not at all quashed by the Apex Court. It is also stated that the trial Court in para 56 and 58 of the judgment notes that the Society is also a necessary party to the suit and therefore, the applicant is a necessary party to the present proceedings. It is contended that while the Society was developing the property in pursuance to the acquisition of the land, a receiver appointed by this Court came into the scene which shocked the applicant. Therefore, the rights of the Society involved are also affected and therefore, it has become necessary for the Society to implead in the present proceedings as respondent No.4.
27 RFA NO. 7/2011C/W RFA NO. 1684/2010
28. The said impleading applicant has also filed IA No.7/2022 for vacating the interim order to maintain status-quo saying that it is the society which is in possession of the property and the interim order affects its right, title and interest in the same.
29. Similar, applications are also filed in RFA No.7/2011 under order 41 Rule 27 CPC in IA No. 4/2022 and under order 1 Rule 10 of CPC in IA No.6/2022 for impleading Vyalikaval House Building Society as respondent No.4 and under Section 151 of CPC to vacate the stay.
30. We have heard the parties on the above applications also.
Arguments:
31. The learned Senior Counsel appearing for the appellant-Joseph Tyagaraj in RFA.No.1684/2010 has submitted that the defendant is the purchaser of the property from the erstwhile owner-Thammaiah who 28 RFA NO. 7/2011 C/W RFA NO. 1684/2010 apparently did not have any right, title or interest in the suit schedule property. It is submitted that Thammaiah had sold his property to various persons after forming a layout in the portion of Sy.No.50/4. In order to establish this aspect, he has taken us through the documents which are marked in evidence.
a) It is submitted that one Kashi Muniswamappa had two children i.e., Kashi Muniswamy and Thirumalappa.
It is submitted that son of Muniswamy was Muni Venkatappa and his son is Thammaiah-the vendor of the defendant.
b) It is submitted that Kashi Muniswamy had mortgaged the 25 guntas of the property in Sy.No.50/4 in favour of grandfather of the plaintiff-Dravidappa. It is contended that the said mortgage as per Ex.P10, was never redeemed and therefore, the property remained with Dravidappa and he became the owner of the property.
c) He further submits that Thirumalappa sold 25 guntas in the property in favour of Dravidappa under the 29 RFA NO. 7/2011 C/W RFA NO. 1684/2010 sale deed at Ex.P11. It is submitted that both these documents mentioned the survey number as 50/2. In fact, they were part of Sy.No.50/4.
d) It is contended that in the year 1972, there was a partition among the plaintiff, his father and brother as per Ex.P7. In the said partition deed, the item No.6 of the schedule-D which was allotted to Dravidappa was shown as Sy.No.50/2 instead of Sy.no.50/4. The extent of the land allotted to the share of Dravidappa was 25 guntas.
e) The said error was rectified by way of the rectification deed as per Ex.P8 dated 16.10.1980. It is contended that the defendant's vendor Thammaiah has sold the property measuring 18 guntas in Sy.no.50/4, which he inherited from K.Muniswamy in favour of the defendant under the sale deed at Ex.P18. It is pointed out that the boundaries mentioned in Ex.P18 are the same as that of the plaintiff. It is also submitted that Thammaiah has also sold the properties showing the boundaries of the property belonging to Dravidappa under various sale deeds at 30 RFA NO. 7/2011 C/W RFA NO. 1684/2010 Ex.P17, 21 to 26 to third parties. Therefore, he contends that prior to Ex.P18, the said Thammaiah and his family members had sold all their properties and as such, had left with no property with them when Ex.P18 came to be executed in favour of the defendant. Therefore, he contends that the sale transaction between Thammaiah and the defendant is hollow and there was no title that could be transferred by Thammaiah to the defendant.
f) It is contended that the evidence on record in the form of documents is clear and show that the plaintiffs right in the suit schedule property were usurped by Thammaiah. He has also contended that DW.1 in the cross- examination admits that the boundaries of the properties belonging to the plaintiffs were shown as the boundaries of the property of the defendant, while executing the sale deed.
g) Regarding the application filed by the Vyalikaval House Building Co-operative Society for impleadment, he submits that the Hon'ble Apex Court has quashed the 31 RFA NO. 7/2011 C/W RFA NO. 1684/2010 notification for acquisition of the land and the said order categorically mentioned that it applies to the petitioners who had approached the Court or those who had not approached. Therefore, the said Society could not have laid its hands on the suit schedule properties when the acquisition notifications have become non-est.
h) It is submitted that the defendant has not placed any document to show the title except the mutation entries in the revenue records which were subsequent to the sale transactions.
i) Thus, the learned Senior Counsel submits that the plaintiff had proved his case on the basis of boundaries in various documents produced by the plaintiff, on the basis of the revenue entries which are in favour of the plaintiff, which was not at all rebutted by the defendants by any cogent evidence.
j) So far as the injunction suit is concerned, it is submitted that it squarely depends upon the result of the 32 RFA NO. 7/2011 C/W RFA NO. 1684/2010 suit in O.S.No.4315/2006 and therefore, the judgment and decree in the said suit do not require any intervention.
32. In this regard, he has placed reliance on following decisions:
1. Vyalikaval House Building Coop. Society, by its Secretary Vs. V. Chandrappa and Others.1
2. B. Anjanappa and Others Vs. Vyalikaval House Building Co-operative Society Limited and Others.2
33. Per contra, learned counsel appearing for the respondents in RFA.No.1684/2010 and also the learned counsel for the appellant in RFA.No.7/2011 submit that the documents produced by the plaintiff-Joseph Tyagaraj do not support the case of the plaintiff. It is pointed out that the boundaries shown in respect of Sy.No.50/2 in Ex.P10 and the boundaries shown in Ex.P11 are different. He submits 1 (2007) 9 SCC 304 2 Civil Appeal No. 1930/2012 DD. 07.02.2012 33 RFA NO. 7/2011 C/W RFA NO. 1684/2010 that the mortgage referred in Ex.P10 is not the property which is subject matter of the Ex.P11, sold by Thirumalappa. It is submitted that the mortgage mentioned in Exs.P10 and P11 are in respect of two different properties and as such, the plaintiff cannot draw any reliance on these documents.
b) He has tried to demonstrate that in Ex.P7- partition deed, schedule-D item No.5 and item No.6 speak of portions of properties in Sy.No.50/2. The boundaries are of pivotal importance and submit that the boundaries for the suit schedule property in the plaint do not tally with the boundaries mentioned in item No.6 Schedule-D of Ex.P7.
c) He submits that a mere rectification in Ex.P7-parittion deed would not suffice the claim of the plaintiff. It is submitted that Ex.p10 and 11 which are of the year 1923 and 1930 speak of Sy.No.50/2 and therefore, at no stretch of imagination, I can be said that these documents reflect any existence of the suit schedule property.
34 RFA NO. 7/2011C/W RFA NO. 1684/2010
d) He submits that when Sy.No.50/2 was changed to Sy.No.50/4 is not forthcoming from the contentions of the plaintiff. He also points out that there is no proper pleading as to in what documents Sy.no.50/4 is wrongly described as Sy.No.50/2. Hence, he submits that the trial Court has considered all the aspects and has come to the right, conclusion that the suit for declaration of title and nullification of the sale deed executed by Thammaiah in favour of defendant-Nagaraj Shetty and other consequential reliefs are to be rejected.
34. The learned Senior Counsel appearing for the impleading applicant Vyalikaval HBCS Limited, submit that in pursuance to the acquisition notifications, the possession was taken on 05.05.1988. He submits that the plaintiff- Joseph Tyagaraj never sought for cancellation of the acquisition. He submits that the award for acquisition of the land of Joseph Tyagaraj was a consent award and it was never the subject matter of the quashment of the 35 RFA NO. 7/2011 C/W RFA NO. 1684/2010 notifications by this Court as well as by the Hon'ble Apex Court. He points out that the RTC in respect of the suit schedule property show the name of the society and therefore, the suit of the plaintiff is not maintainable. He also submit that the applicability of the quashment of the notification has been dealt with by this Court in the case of Smt Jethrutha Vs The State of Karnataka and others in WA No.4363/2010 dtd 20-09-2011 where, it is clarified that such quashment ordered in the case reported in AIR 2007 SC 1151 would not apply to the persons who have not approached the Court on the ground that there was no such order that it would apply to all similarly placed persons. Reliance was placed on the order in CA No. 1930 of 2012 in B. Anjanappa Vs Vyalikaval House Building Co Op Society by Apex court dated 24-4-2014 also (Anjanappa 2).
35. Lastly, he submits that he only came to know about the present appeals when the Court Receiver was appointed by this Court on 14.10.2022 and then, he came 36 RFA NO. 7/2011 C/W RFA NO. 1684/2010 to the spot and put up a sign board saying that the receiver is appointed by the Court and status-quo has to be maintained by all the parties. Therefore, he submits that the order of status-quo passed by this Court be vacated and necessary applications have been filed by the applicant in this regard. In support of his contention, he has placed reliance on the following decisions:
1. Union Of India and Others Vs. Vasavi Co-Operative Housing Society Limited and Others.3
2. City Municipal Council Bhalki, by its Chief Officer Vs. Gurappa (Dead) by Legal Representatives and Another.4
3. B Santoshamma and Another Vs. D.Sarala and Another.5
36. In reply, learned Senior Counsel Sri Ashok Haranahalli, submits that the decision of the Chandrappa's case [(2007) 9 SCC 304] is final and the subsequent judgments are not at all applicable to the case on hand. He submit that two other cases relied by the applicant-society 3 (2014) 2 SCC 269 4 (2016) 2 SCC 200 37 RFA NO. 7/2011 C/W RFA NO. 1684/2010 i.e., Anjanappa 1(CA No. 1930 of 2012 in B. Anjanappa Vs Vyalikaval House Building Co Op Society by Apex court dated 2-7-2012) and Anjanappa 2 are not relevant as they pertain to reacquisition.
Points for determination:
37. In the light of these arguments, the points that arise for our determination in these appeals are:
1. Whether the plaintiff has proved his title over 25 guntas in Sy No. 50/4 of Nagavara as claimed in plaint?
2. Whether the plaintiff is entitled to claim declaration regarding the sale deed executed by Thammaiah in favour of defendant?
3. Whether the impugned judgment of the trial Court in OS No.4315/2006 is perverse, arbitrary and capricious and needs to be interfered with?
4. Whether the impugned judgment in OS No. 16433/2011 is sustainable?
5. Whether the impleading applicant is a necessary party to the lis?
5
(2020) 19 SCC 80 38 RFA NO. 7/2011 C/W RFA NO. 1684/2010
6. Whether the application for adducing of additional evidence deserves to be allowed?
Analysis and Conclusions:
Re: Point No.1:
38. The case of the plaintiff as can be gathered from the pleadings is that the grandfather of the plaintiff i.e., Dravidappa was a mortgagee of about 25 guntas of land and he is claiming that the defendants are the descendent in title of the mortgagor. The said mortgage having not been redeemed, the plaintiff has become owner of the same and therefore, the defendant does not have any title. The second contention of the plaintiff is 25 guntas of land in Sy.No.50/4 was sold by Thirumalappa in favour of Dravidappa and therefore, the plaintiff being the descendent in title, shall be declared as owner of the suit schedule property. The third contention is that the defendant being the purchaser of the property from Thammaiah (who is the defendant in O.S.No.15433/2004) 39 RFA NO. 7/2011 C/W RFA NO. 1684/2010 had not obtained any title as Thammaiah had no title in the property. As a consequence, he has sought for permanent injunction restraining the defendants from interfering in the peaceful possession as well as from alienating the suit schedule property.
39. Before we enter into the merits of the case, it is to be borne in mind that the plaintiff has to succeed in his claim on his own strength and stand on his own legs. In the case of Union Of India and Others Vs. Vasavi Co-
Operative Housing Society Limited and Others6 it was held that:
"15. It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any of the case set up by defendant would not be a ground to grant relief to the plaintiff"
6
(2014) 2 SCC 269 40 RFA NO. 7/2011 C/W RFA NO. 1684/2010 The Judgment in City Municipal Council Bhalki, by its Chief Officer Vs. Gurappa (Dead) by Legal Representatives and Another7 also lays down same principle.
40. The claim of title of the plaintiff over the suit schedule property emanates from the mortgage as well as the sale deed in favour of his grandfather Dravidappa. Therefore, it is necessary to look into these contentions of the plaintiff.
41. The first document relied by the plaintiff is the mortgage deed produced at Ex.P10. This document shows that on 04.05.1923, Kashi Muniswamy (grandfather of Thammaiah) had executed a registered mortgage deed in favour of Daveerappa (there is no pleading that Daveerappa and Dravidappa are one and the same) concerning five properties and the property claimed by the plaintiff is described as 25 guntas of land in Sy.No.50/2; bounded by 7 (2016) 2 SCC 200 41 RFA NO. 7/2011 C/W RFA NO. 1684/2010 water channel on the East, Gopalappa's land on the West, land of Thirumalappa on the North and the land of Muniramanna on the South. This document is registered as document No.4566 on 26.05.1923. It is relevant to note that the boundaries mentioned in this document do not tally with the boundaries mentioned in the plaint, except that there is a water channel on the eastern side. Moreover, it pertains to Sy.No.50/2 but not Sy.No.50/4. Unless the plaintiff shows that Sy.No.50/2 referred in this document was renumbered as Sy.No.50/4 and also that the boundaries are also of the same property, he cannot claim any derivative interest under Ex.P10.
42. The second document relied by the plaintiff is sale deed at Ex.P11. It shows that on 13.09.1930, Thirumalappa, who was the brother of Kashi Muniswamy had executed the sale deed in respect of two immovable properties in favour of the grandfather of the plaintiff Daveerappa for a consideration of Rs.300/-. One of the 42 RFA NO. 7/2011 C/W RFA NO. 1684/2010 property among them is 25 guntas of land in Sy.No.50/2; bounded by water channel and village on the east, land of the purchaser(Daveerappa) on the west and north, land of Kashimuniswamy on the south. It is pertinent to note that this document refers to a mortgage deed executed earlier, which was registered at Sl.No.4568 dated 25.05.1923. Obviously, it is not referring to Ex.P10 (which is registered as document No.4566 on 26.05.1923). It is relevant to note that on the southern side of the property sold under Ex.P11, the land belonging to the mortgagor in Ex.P10 is situated. Thus, it is evident that Ex.P10 and Ex.P11 both mention that they are in respect of 25 guntas of land each in Sy.No.50/2; and on the eastern side of both the lands, there is a water channel. Obviously, both these lands are different and were held by two different persons i.e., Kashimuniswamy and Thirumalappa. It is also relevant to note that both these documents are in respect of the portion of the land in Sy.No.50/2 but not 50/4. 43 RFA NO. 7/2011 C/W RFA NO. 1684/2010
43. The third document the plaintiff relies is Ex.P7- partition deed. This document evidences the partition effected between Thomasappa and his sons. Item No.6 of Schedule-D is stated to be the relevant entry pertaining to the suit schedule property. It is described as Sy.No.50/2 measuring 25 guntas bounded by water channel on the east, land of Dravidappa on the west, Sy.No.50/2, 3, 5 and 6 on the North and land of Abbiga on the south. The plaintiff contends that Sy.No.50/2 in fact should have been described as Sy.No.50/4 and the said inadvertent error was rectified by rectification deed at Ex.P8.
44. The plaint describes the suit schedule property as the land in Sy.No.50/4 measuring 25 guntas bounded by:
water channel on the East; land of Dravidappa on the West; Sy.Nos.50/2, 3 and 4 on the North and the land of the defendant on the South.
45. What emanates from these documents is, there is nothing on record which shows that Ex.P10 and Ex.P11 44 RFA NO. 7/2011 C/W RFA NO. 1684/2010 refer to Sy.No.50/4. Obviously, these two documents relate to Sy.No.50/2 and both refer to two different lands which are measuring 25 guntas each. If these two documents are considered, then the total extent of the land is 01 acre 10 guntas and it does not tally with the total extent of the land with Sy.No.50/4 which is 01 acre 07 guntas. There is no averment or a satisfactory explanation in this regard. Therefore, the property which was mortgaged by Kashimuniswamy to Dravidappa under Ex.P7 has no semblance of relationship with the suit schedule property.
46. Ex.P11-sale deed refers to an earlier mortgage also. Obviously, the said earlier mortgage could not be redeemed by Thirumalappa and therefore, he sold the property to Dravidappa. If we see the prayer made by the plaintiff in the plaint, it is evident that 25 guntas which was mortgaged to the plaintiff's grandfather, is sought to be declared to be of his ownership. The subsistence of the mortgage of the property is not established since the 45 RFA NO. 7/2011 C/W RFA NO. 1684/2010 plaintiff is relying on Ex.P11 sale deed. Ex.P11 refers to Sy.No.50/2 and the boundaries do not tally. Hence, the prayer in respect of the title based on the mortgaged property has to fail.
47. The plaintiff contends that the suit schedule property was earlier known by Sy.No.50/2 and later, it was converted to Sy.No.50/4. There is no pleading that Sy.No.50/2 was later renumbered as Sy.No.50/4. Obviously, this revision in number has to be reflected in the records of the revenue authorities. Simply because Dravidappa and his family members had mentioned that Sy.No.50/2 was wrongly mentioned in Ex.P7, it cannot be said that it was given a new number. Therefore, it is evident that at no point of time, Sy.No.50/2 was renumbered as Sy.No.50/4 by revenue authorities. Absolutely, no evidence is placed on record in this regard.
48. The plaintiff is relying on the revenue records also. The Ex.P1 to P4 are the RTCs of Sy.No.50/4. These 46 RFA NO. 7/2011 C/W RFA NO. 1684/2010 documents show that the property measures 01 acre 07 guntas and 25 guntas is in the name of the plaintiff and 20 guntas is in the name of Thammaiah. It also shows that 18 guntas is acquired by BDA and 27 guntas is acquired by Vyalikaval House Building Society. In other words, these documents show that a total of 01 acre 05 guntas has been acquired by the Government. This acquisition is in dispute between the plaintiff and the impleading applicant. This aspect would be dealt by this Court at the latter part of the judgment while considering the application for impleading.
49. From the above records, it is evident that none of the RTC showed the name of Dravidappa or his adoptive father Chinnappa in respect of Sy.No.50/4. Prior to 1990, there is nothing on record to demonstrate that Sy.No.50/4 stood in the name of the father of the plaintiff Thomasappa or grandfather Dravidappa. It is also to be noted that the entry of the name of Dravidappa commences only from the year 1980 in respect of Sy.No.50/4. Obviously, it is in 47 RFA NO. 7/2011 C/W RFA NO. 1684/2010 pursuance to the correction of the partition deed which had allegedly taken place in the year 1972. If the correction deed as per Ex.P8 was in respect of an error which had occurred in Ex.P7 Partition deed, the records prior to partition deed should have mentioned the name of Dravidappa in respect of Sy.No.50/4. Therefore, when there is no iota of evidence to show that Sy.No.50/4 was standing in the name of Dravidappa at any time, we are unable to accede to the submissions made by learned counsel for appellant.
50. One another aspect which is of significance is that the plaintiff nowhere states in his pleadings or in the evidence that the error in respect of Sy.No.50/4 which occurred in Ex.P7 was an error which was there since the sale deed produced at Ex.P11 i.e., in the year 1930. Therefore, in the absence of any material to establish that the property that is referred in Ex.P11 was in fact, referring to Sy.No.50/4, it is not possible for this Court to hold that 48 RFA NO. 7/2011 C/W RFA NO. 1684/2010 Sy.No.50/4 was owned by Dravidappa and then it descended upon Chinnappa and thereafter, Thomasappa. Under these circumstances, the uninterrupted flow of title in respect of Sy.No.50/4 has not been established by the plaintiff. When the plaintiff averred in the plaint that he is claiming the title over the suit schedule property by virtue of either Ex.P10 or Ex.P11, which as noted earlier pertain to two different properties it is not possible for this Court to hold that there is an uninterrupted flow of title in respect of the suit schedule property. Hence, we are of the considered view that the plaintiff has failed to establish that he has the right, title and interest in respect of the suit property. Re: Point No.2.
51. The plaintiff seeks to declare that the sale deed executed by Thammaiah in favour of the Defendant- Nagaraja Shetty is null and void on the ground that Thammaiah has no right, title and interest over the suit property. It is relevant to note that in OS No.4315/2006, the said Thamamaiah or his legal heirs are not the parties. 49 RFA NO. 7/2011 C/W RFA NO. 1684/2010 Obviously, the plaintiff was not a party to the said sale deed. So also, he had nothing to do with the sale deed executed by Thammaiah in favour of defendant-Nagaraja Shetty. When the plaintiff is seeking to declare that sale deed is null and void for which he is not a party, obviously, the parties to the said sale deed should have been arrayed as defendants in the said suit. Hence, for non impleadment of the said Thammaiah in the suit for declaration that the sale deed executed by him is null and void goes to the root of the case. It is not the grievance of the defendant- Nagaraja Shetty that Thammaiah has sold the said property under Ex.P18 to him without any title. The sale deed binds the parties to it and the plaintiff was not a party to the same. Therefore, the declaration that the said sale deed is null and void had nothing to do with respect to the rights of the plaintiff in suit schedule property, if he had any.
52. The trial Court in its judgment has observed that when it is not the grievance of the defendant that Thammaiah had sold the property without any title in him, 50 RFA NO. 7/2011 C/W RFA NO. 1684/2010 it was not open for the plaintiff to seek declaration that the said sale deed is null and void. This observation of trial court stretches a little beyond the claim made by the plaintiff. When there was no such grievance by the defendant Nagaraja Shetty, the plaintiff could not have sought for declaration of the said sale deed as null and void. At the most he could have claimed that the said sale deed is not binding on him.
53. The said declaration was redundant and of no relevance, more particularly, when the plaintiff himself contended that there was an acquisition by the BDA and for the Vyalikaval Society and later the said notifications for acquisition were quashed. Hence, the prayer for cancellation of the sale deed executed by Thammaiah in favour of the defendant Nagaraja Shetty could not have been sought by the plaintiff.
51 RFA NO. 7/2011C/W RFA NO. 1684/2010 Re: Point No.3
54. The third point is in respect of the judgment of the trial Court. The trial Court in its judgment has observed several aspects to come to the conclusion that the suit has to be dismissed, which are as below:
(a) It observes that the location of the suit schedule property was not pleaded and revenue sketch of the same was not produced by either of the parties. When the plaintiff claims title over a portion of the property, the revenue sketch should have been produced to show that his property is on northern side and that of Thammaiah is on the southern side. No such evidence is available on record.
(b) The trial Court held that plaintiff says that 18 guntas was given to society and again he says that another 18 guntas were sold to the defendant. The boundaries in respect of 18 gunthas which was acquired and 18 gunthas sold to the defendant should 52 RFA NO. 7/2011 C/W RFA NO. 1684/2010 have been demonstrated by the plaintiff No such evidence is produced.
(c) To ascertain the acquisition of 27 gunthas of the land of the plaintiff, the details of the land acquisition and the evidence in respect of restoring the possession of the said property to the plaintiff should have been produced. No such material is available on record.
(d) The vendor of the defendant i.e. Thammaiah is not a party to the suit and therefore, the declaration that the sale deed is null and void cannot be granted.
(e) The trial Court holds that the said Vaiyalikawal House Building Co-operative Society Limited is also a necessary party.
(f) It observes that no declaration was sought in respect of the title of the mortgaged property within the period of 30 + 3 years. The plaintiff is seeking such title only after 50 years. Obviously this 53 RFA NO. 7/2011 C/W RFA NO. 1684/2010 observation is without ascertaining the contents of Exs.P10 and 11.
(g) It observes that there are no records to show that prior to 1972 partition and the rectification deed in the year 1980 as per Exs.P7 and 8, there is nothing on record to show that Sy.No.50/4 was belonging to Thomasappa. Therefore, the flow of title has not been established by the plaintiff.
(h) It also observes that there is no reference in respect of Sy.No.50/4 in Ex.P10 or Ex.P11. Entire records showing Sy.No.50/4 in the name of Thomasappa or Dravidappa was only after the year 1980 rectification deed. The trial Court also observes that the RTC are not the documents of title and when there is no evidence on records to show that Sy.No.50/4 existed and was standing in the name of Thomasappa or Dravidappa prior to 1980, it cannot be said that the revenue records would show the title to the suit schedule property.54 RFA NO. 7/2011
C/W RFA NO. 1684/2010
(i) The trial Court observes that there is nothing on record to show that Sy.No.50/2 was revised as Sy.No.50/4 by the revenue authorities. There is no such pleading or the evidence to show that earlier suit survey number was measuring 1 acre 5 guntas + 2 guntas of pot karab and it was renumbered as Sy.No.50/4.
(j) The trial Court observes that DW.1 in O.S.No.15433/2004 admits that 27 guntas was acquired by the BDA and there was no such evidence to show that the said 27 guntas was also part of acquisition and the notification in respect of said land was also quashed. However, the revenue records produced by the plaintiff show that there was acquisition proceedings in respect of 27 and 20 guntas of the Sy.no.50/4 and no cogent evidence is available to show that acquisitions for both the parcel of the land were quashed.55 RFA NO. 7/2011
C/W RFA NO. 1684/2010
(k) The trial Court holds that the plaintiff should have paid the Court fee on the market value and the Court fee paid is insufficient.
55. On these grounds, the trial Court came to the conclusion that the suit is liable to be dismissed. In our discussion also, it is demonstrated that there is nothing on record to show that Dravidappa or Thomasappa were the owners of Sy.No.50/4 at any point of time. All the documents produced by the plaintiff pertain to Sy.No.50/2. It is not known when Sy.No.50/2 was converted to Sy.No.50/4 with a new number or how and when Sy.No.50/4 was carved out. We do not find any reason to hold that the impugned judgment of the trial Court either arbitrary, capricious or perverse.
Re: Point No. 4.
56. As noted above, this suit was filed by the plaintiff Joseph Tyagaraj seeking injunction against Thammaiah. The Trial court held that the plaintiff's name is appearing for 56 RFA NO. 7/2011 C/W RFA NO. 1684/2010 25 gunthas of land in Sy No. 50/4 and such entry was not challenged by Thammaiah and also that in WP No. 47842/2003, the acquisitions of land bearing Sy No. 50/2 and 50/3 by the Govt for Vyalikaval society were quashed and as such the possession of the plaintiff was proved.
57. It is significant to note that Ex.D2 to D4 in OS No. 15344/2004, which are the RTC pertaining to Sy No. 50/4 for the year prior to 1979-80 (prior to rectification deed) show that the name of Thammaiah was mentioned as the owner. Nowhere the name of Dravidappa or Thomasappa was appearing prior to 1980.
58. The larger issue regarding the title to the property is held against the plaintiff. Therefore, the claim on the basis of a revenue entry cannot be sustained. By no stretch of imagination, the revenue records can be documents of title. Therefore, the judgment in OS No. 15344/2004 is not sustainable. Obviously the trial Court did not go into the 57 RFA NO. 7/2011 C/W RFA NO. 1684/2010 question of title. When the plaintiff is bereft of title to the property, he is not entitled for any relief of injunction. Re: Point No.5.
59. In the affidavit filed by the impleading applicant i.e., Vyalikaval House Building Co-operative Society Limited, the deponent contends that it came to know about the present suit only when the Court Receiver came to the spot and directed the parties to maintain the status-quo and stopped the civil work to form a layout. It is the contention of the applicant-Society that the acquisition was challenged by some of the land owners stating that it is illegal and that acquisition proceedings in respect of those applicants was quashed by this Court and later it was confirmed by the Apex Court in Chandrappa's case. It is contended that the plaintiff had not approached the Hon'ble High Court or the Apex Court in respect of the property belonging to him and therefore, the properties, more particularly, Sy.No.50/4 was not involved in the quashment 58 RFA NO. 7/2011 C/W RFA NO. 1684/2010 proceedings and therefore, the acquisition holds good. In this regard, he relies on various decisions. He submits that in a subsequent decision, this Court has held that the quashment holds good only for the applicants who had approached the Court and it is not in respect of the plaintiff herein and it does not apply in respect of the plaintiff herein. He also relies on the observations of the trial Court wherein, it was held that the society was also a necessary party.
60. It is relevant to note that if the plaintiff had succeeded in the plaint, that would have resulted in an injunctory relief in his favour. In view of the discussions made supra, the appeal fails as the plaintiff has not proved that he was the title holder of the suit schedule property. Therefore, the impleading applicant-Society is not a necessary party. Moreover, there is no prayer sought by the plaintiff against the applicant-Society in this case. If at all the plaintiff had succeeded in the suit, the benefit of the 59 RFA NO. 7/2011 C/W RFA NO. 1684/2010 decree would have enured to him against the appearing defendants. The applicant-society was at liberty to agitate its rights before the proper forum. The said society was never in the picture in any form in the present suit. It is claiming only under the land acquisition proceedings and it is evident that there are several litigations which have cropped from the acquisition proceedings. Under such circumstances, when there is no relief sought against the applicant herein, it is not necessary for this Court to venture into the merits of the claim of the impleading applicant albeit; though there is an observation by the trial Court that it was a necessary party. Hence, the application is devoid of any merits and as such, the same deserves to be dismissed.
Re: Point No.6.
61. The impleading applicant has filed similar applications seeking to adduce additional evidence regarding his claim that he is in possession on the bases of 60 RFA NO. 7/2011 C/W RFA NO. 1684/2010 the acquisition proceedings, which are sustained by a series of litigation. We have come to the conclusion that the suits filed by the plaintiff Joseph Tyagaraj are not sustainable as he has failed to establish his title. Therefore, these applications would be redundant and they would serve no purpose. Therefore, these applications filed under Order 41 Rule 27 of CPC are liable to be dismissed. Accordingly dismissed.
Re: Court Receiver and other interim applications
62. As noted supra, a Court Receiver was appointed at the instance of the plaintiff to prevent the construction activity in the suit property, which was undertaken despite there being an order of Status-quo. Now that the appeal filed by the plaintiff is dismissed, all the interim orders stand merged with the final order. Hence, the Court Receiver also stand discharged.
63. For aforesaid reasons, we pass the following order.
61 RFA NO. 7/2011C/W RFA NO. 1684/2010
ORDER
(i) RFA No. 7/2011 is allowed. OS No. 15433/2004 stands dismissed.
(ii) RFA No.1684/2010 is dismissed with costs.
(iii) The judgment passed by the trial Court in OS No. 4315/2006 dated 24-09-2010 is hereby confirmed.
Sd/-
JUDGE Sd/-
JUDGE tsn*