Karnataka High Court
Radhamma vs Lakshmamma K. Murthy on 28 June, 1995
Equivalent citations: ILR1995KAR3249, 1995(4)KARLJ145, 1996 A I H C 2921
JUDGMENT M.F. Saldanha, J.
1. This Appeal raises an interesting issue which has been very vigorously contested and which may briefly be summarised as follows. It has become quite prevalent in several of the acquisitions undertaken in and around the City of Bangalore for parties to represent to the concerned authorities that for a variety of reasons the acquired properties be reconveyed to them. Without commenting on either the propriety or the wisdom involved in many of these decisions, quite apart from the public interest angle where it is presumed that the original acquisition was a responsibly well considered action on which considerable amount of public finance has been expended, the issue that really arises is the question as to whether such acts of reconveyance are to be construed as conferring enforceable rights. That issue has directly arisen in this Appeal in so far as the dispute which concerns a plot of land or better described as a site No. 3971 which is situated at 17th 'E' Cross, 3rd Main, Banashankari II Stage, Bangalore was acquired by the B.D.A. and the acquisition process was completed. This was in the year 1964-65. It was contended that one H. Muddappa had earlier purchased this property and that after the acquisition he made certain applications and representations to the B.D.A. asking for reconveyance of that property. The record indicates that no order for reconveyance was passed pursuant to those applications. Sometime after his death, the present respondent who is the wife of the son of deceased Muddappa filed an application to the B.D.A. to the effect that she is a widow, she is a heir of the deceased Muddappa, that she has 3 children and that consequently, the B.D.A. should allot the site in question to her. The B.D.A did in tact allot the site to the respondent who thereafter completed certain formalities that were required of her. It is her case that the defendant No. 1 along with defendants 2 and 3 who are her sons are alleged to have encroached on the site in question and are alleged to have prevented her from constructing a house on that site for which she had made the requisite preparations. She therefore filed O.S.No. 10462/88 before the Bangalore City Civil Court asking for reliefs inter alia to the effect that she should be granted possession of the site and that the defendants be injuncted from disturbing her possession, use and occupation of that site.
2. The defence pleaded by the defendants to the original suit (who are the appellants before me) was principally to the effect that they have been residing in a structure on the suit property, that deceased Muddappa had applied for reconveyance principally because possession had never been taken over by the B.D.A. and thirdly and more importantly they contend that if any reconveyance was to be granted, that it had to be pursuant to the application made by deceased Muddappa in which case all his legal heirs would derive proportionate rights in respect of that property. The learned trial Judge in a considered judgment has rejected the defence and has decreed the suit and it is against this judgment and order that the present Appeal has been directed. As indicated by me earlier, the principal controversy in this case centres around the issue as to whether the applicant in a case for reconveyance or for that matter his or her legal heirs derive rights if the property is restored, or not. The appellants' learned Advocate, in support of this submission filed two applications before this Court supported by certain documents because he contended that for purposes of agitating this issue additional evidence was absolutely necessary. He made a grievance to the effect that even if the B.D.A. had been served a summons to produce the relevant documents, that they did not produce the material which, after a lot of difficulty his clients have now been able to get copies of and that it was crucial that this material must be taken into consideration by the Court. His submission was that the non-production of this material was not due to any default on the part of the appellants and that in these circumstances, this was one of the cases where an Appeal Court must permit the production of additional evidence and for this purpose, that it was very necessary to set aside the order and remand the matter for the production of this evidence and a fresh decision on the basis of the altered record. The respondents to the Appeal have opposed these I.As. principally on the ground that it is only in exceptional cases that additional evidence is permitted and that the facts of the present case would not justify it.
3. I shall deal with the issue concerning additional evidence presently but the aspect regarding rights if any in relation to the peculiar practice prevailing in this State of reconveying once acquired properties, gives rise to the demand that has been made in this petition, that reconveyance can be claimed as a matter of right. The subsidiary argument canvassed was that if the party who is entitled to claim reconveyance as of right has died, that in the event of reconveyance alt the legal heirs are entitled to claim shares in that property.
4. This position requires to be clarified in so far as the act of reconveyance is virtually unheard of in the scheme of Law relating to Land Acquisitions. Acquisition of property for a public purpose is a very serious matter in so far as such property is compulsorily required to be surrendered by a citizen for a modest compensation and the only justification for this is the plea of overwhelming public purpose because the law subjugates personal interest to the public interest. Once that procedure is completed, all rights stand extinguished and the property along with the attachment thereon vests completely in the Acquiring Authority. It is amazing, in these circumstances to find Government authorities on all sorts of personal and extraneous considerations interfering with the acquisition process and reversing it in a manner that is unheard of under the provisions of the Land Acquisition Act. Quite apart from the loss to the Public Exchequer, since it is presumed that the earlier acquisition was done in the public interest, a reversal of that process signifies that the political authority who directs it is subverting public interest by subjugating it to personal interest. At the highest, even if it is sought to be justified in individual cases which it is extremely difficult to do, which is why this Court has repeatedly deprecated the practice, the question still arises as to whether it can be demanded as of right to which the answer is an emphatical no. A reconveyance is only an indulgence and if resorted to, would virtually mean that it is an act of restoration of the status quo ante. If such an act of reconveyance does take place, it will have to be categorised as a reconveyance and is totally distinguishable from a fresh allotment which is an allotment on merits and is in no way concerned with the pre-existing rights. When a property is therefore reconveyed by the act of the Government or a public authority, it comes back to the holder and the rights of the legal heirs would therefore stand revived. This however is not to be confused with a situation in which no order of reconveyance is passed but where, on merits a fresh allotment is made which has no bearing on an act of reconveyance.
5. As far as the production of additional evidence at this point of time is concerned, the principles of law are very well defined. If a party gets wiser after the event and that too after a protracted litigation has been conclusively decided, an Appeal has been filed and at the stage of the arguments of the Appeal, seeks to reopen a litigation at that point of time, it is only in the microscopic minority of cases that a Court would ever permit an addition to the record. I do concede that there are a small number of cases where it is demonstrated that there will be a total failure of Justice, if this is not permitted and in these instances the Court does show some indulgence. One of the considerations in this regard is for the Appeal Court to examine the material which is likely to come before the trial Court and regardless of the aspect of default, negligence etc. which are subsidiary to the doing of complete Justice, if it appears to the Court from that very material that it would tilt the balance or vary the decision, to my mind a Court could permit the reopening of a case even at that point of time though this would be done in the rarest of rare cases. The material in question as far as the present case is concerned consists of some documents to indicate that Muddappa's father was in possession of that property, that he had sought to get some electrical work done there and such other incidental matters. The fact that he was originally in possession of that property is not the issue that falls for determination in this dispute. The second head of evidence and the one on which the appellants' learned Advocate concentrated very seriously consists of applications made by deceased Muddappa to the B.D.A. requesting them to consider reconveyance of the property to him after the acquisition was completed. The learned Advocate also sought to place reliance on the sequences of events of what transpired at the authority's level after those applications were filed. Another document on which he placed heavy reliance was the copy of the application made by the present respondent on the basis of which the allotment of the site was done to her. According to the learned Advocate, his clients are not at all at fault, if the B.D.A. officers despite being asked to produce the relevant records did not produce all those documents and that perhaps the learned Advocate who was conducting the matter at that time did not specifically know of the existence or location of some of those documents and therefore in the interest of Justice the provision of additional evidence must be permitted. He did rely on a few Rulings in support of his plea that in a situation of this type the Court must permit the application in question. The first of them is a Division Bench Decision of this High Court reported in AIR 1956 Mysore 47 Muniyappa v. S.V. Ramakrishna. On the facts before the Court at that point of time the Court granted the application under Order 41 Rule 27 and permitted the introduction of additional evidence. The Division Bench held that this power is a discretionary one and it is certainly open to the Appeal Court to exercise it. It is precisely that discretion which has got to be Judicially exercised and in so doing, the one and only test that has to be applied is the question as to whether that material will substantially alter the decision that was rendered without that material. The appellants learned Advocate also drew my attention to a later Decision of the Supreme Court K. Venkata Ramaiah v. Seetharama Reddy. The Supreme Court had occasion to consider the clause "On other substantial grounds" as appeared in Rule 27 and the appellants' learned Advocate submitted that the fair outcome of a dispute which presupposes the fact that a Court must have before it the complete material in relation to all aspects of that dispute would necessarily presuppose that if some of that material had not come, that its introduction is a necessity. The use of the word "substantial" essentially indicates that it must positively point to the fact that the record on the basis of which the suit has been decided was an incomplete one in the sense that had this material been before the Court, the result would inevitably have been different.
6. The principle that therefore emerges ultimately would devolve on a factual consideration of the material sought to be introduced through additional evidence. I have heard the learned Advocates at considerable length and examined the material in question. The fallacy in the argument basically is that the submission proceeds on the footing that this was an order of reconveyance. The record produced before the trial Court and the one which I have very carefully scrutinised makes it clear that this was an allotment simpliciter and that it cannot be either defined as or confused with an order of reconveyance. An order of reconveyance is basically an order of restoration and is very different from a normal allotment which the authority would make on a consideration of an application before it. Even assuming, that the applications filed by Muddappa are to be taken into consideration through the introduction of additional evidence, it would only indicate that he had applied for reconveyance and the non-passing of any order on those applications would ipso facto lead to the irresistible conclusion that they had not been granted. It was after Muddappa's death that the present respondent applied to the B.D.A. in her own capacity for allotment of the site and I have carefully scrutinised the wording and the legal effect of the allotment order to her which makes it abundantly clear that it was on the basis of her application and not on the basis of Muddappa's earlier applications that this allotment was made. Under these circumstances, the introduction of additional material which the appellants' Advocate seeks to introduce in evidence even if permitted will not make any difference to the outcome of the present dispute, the application is therefore rejected.
7. The appellants' learned Advocate pressed a subsidiary argument insofar as he stated that the present respondent was comparatively well placed and well educated in relation to the rest of the family members and that she had represented all of them, that she was virtually following up the earlier applications made by Muddappa for reconveyance and that she was acting in a representative capacity and that consequently even if the allotment was made in her name, the Court must construe it as a reconveyance pursuant to Muddappa's original application and therefore hold that the appellants would also derive proportionate rights in that property. Secondly, he submitted that, some of these material would tend to impeach the credibility of the appellants particularly with regard to the question relating to the existence of the structure on the disputed land. As regards the first of these arguments, I am unable to accept it as the record does not support this view. I have already indicated that the application was made by the respondent in her individual capacity and that it had nothing to do with the earlier applications for reconveyance which is self-evident from the fact that the order passed is not one for reconveyance at all. In this view of the matter, the contention that the respondent was acting in a representative capacity and that certain consequences would follow as a result thereof is devoid of substance and requires to be rejected.
8. The issue involved in the Decision of this Appeal therefore narrows down to the question as to whether the learned trial Judge was justified in his finding that the appellant is entitled to claim unrestricted possession and use of the property in question. The learned trial Judge has relied on the allotment order and on subsidiary evidence which supports the title of the original plaintiff who is the respondent to this Appeal. That material which is basically documentary evidence conclusively establishes that the learned trial Judge was justified in his finding that once the allotment had been made to the present respondent that she was legally entitled to hold that property and use it free from any obstruction from the defendants. As a necessary consequence the learned trial Judge held that if the defendants are claiming to be in possession of any part of that property, that they are liable to hand over possession thereof to the appellants. Once it is established that the site was allotted to the plaintiff in her individual capacity, it is a necessary consequence that the relief asked for by the plaintiff must be granted.
9. The appellants' learned Advocate took me through the oral evidence of the plaintiff and he did argue at considerable length in an effort to submit that there are certain discrepancies in this evidence on the basis of which the credibility of the appellants is liable to be impeached. One of these concerns the question as to whether the plaintiff did in fact reside in the structure on that property for sometime and whether she acceded to the request of the defendants that they be allowed to use that property for sometime. I have examined the material that is on record in this regard and to my mind, that aspect of the matter is quite secondary to the basic question namely whether in law the plaintiff possesses unrestricted legal rights in respect of the property in question. I have already held that the learned trial Judge was fully justified in answering this question in the affirmative and that the position both on facts and in law as far as this finding is concerned is completely unassailable. Consequently, a few infirmities in the oral evidence are inconsequential in a proceeding of this type where findings are on the basis of documentary evidence. The appellants' learned Advocate also relied on the oral evidence of the defendants in support of his contention that it is their case that the possession of the property in question has never changed hands and that Muddappa and the defendants thereafter have continued in continuous possession thereof and he sought to attack the acquisition on this ground by submitting that it had not reached the stage of finality.
10. We are concerned basically with the position in law and the material placed before the Court in the course of the trial which indicates that the acquisition reached a stage of finality in the year 1964-65. It is therefore too late in the day to go behind what had happened at that point of time because those final orders were never challenged. Under the provisions of the Land Acquisition Act, there is a clear concept of vesting and once the acquisition procedure has been completed, the properties in question vest completely in the Acquiring Authority and the term 'property' necessarily includes all structures, attachments etc. Under these circumstances, it is impermissible in the course of the present proceeding which is an interse dispute to seek to either question the validity of the acquisition order or the effect thereof. One has to proceed on the footing that the property has fully and completely vested which means that all rights possessed by deceased Muddappa or anybody claiming through him stood extinguished completely at that point of time. Fresh rights were created by the B.D.A. in whom the property was vested when it was allotted to the present respondent and it is with these rights that we are concerned with. It is necessary to view the matter from a clearer and correct perspective and if this is done, then the contentions sought to be raised by the defendants with regard to their claim that they continued to remain there would not in any way alter the position nor would it confer any rights on them.
11. In the course of the hearing of this Appeal, the respondent's learned Advocate sought to produce before the Court the Sale Deed executed by the B.D.A. Appellants' learned Advocate has objected to this principally on the ground that this document was not part of the record and also because it is a document that comes within the category of the post suit evidence. The appellants' learned Advocate is fully justified in his submission and it is for this reason that I have neither referred to this document nor placed any reliance on it.
12. In the aforesaid view, the position that emerges is that none of the findings recorded by the learned trial Judge are liable to be interfered with. The judgment, and order are accordingly confirmed. The Appeal fails and stands dismissed. In the circumstances of the case, there shall be no order as to costs. At this stage, the appellants' learned Advocate applies to the Court for the grant of time to hand over possession. He submits that his clients are residing there and that they will be put to great hardship if the decree is sought to be executed forthwith and under these circumstances he prays for some reasonable time. On different facts, there are situations in which Courts do grant time but they are reverse situations in which if such time is granted, it would result in manifest injustice. This is one of the cases in which the plaintiff who is a lady has been struggling to get possession of her own property and to construct a house thereon and she has been successfully obstructed for more than a decade. To my mind in such a background the granting of any time would be a travesty of Justice and the application therefore cannot be granted.